eu network of independent experts on fundamental rights (cfr-cdf)

E.U. NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS(CFR-CDF)RÉSEAU U.E. D’EXPERTS INDÉPENDANTS EN MATIÈRE DE DROITS FONDAMENTAUXREPORT ON THE SITUATION OF FUNDAMENTAL RIGHTSIN THE EUROPEAN UNION IN 2003 *January 2004Reference : CFR-CDF.repEU.2003.enCE DOCUMENT EST ÉGALEMENT DISPONIBLE EN FRANÇAIS.The E.U. Network <strong>of</strong> Independent Experts on Fundamental Rights has been set up by the European Commissionupon request <strong>of</strong> the European Parliament. It monitors the situation <strong>of</strong> fundamental rights in the Member States andin the Union, on the basis <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. It issues reports on the situation <strong>of</strong> fundamentalrights in the Member States and in the Union, as well as opinions on specific issues related to the protection <strong>of</strong>fundamental rights in the Union. The content <strong>of</strong> this opinion does not bind the European Commission. TheCommission accepts no liability whatsoever with regard to the information contained in this document.*This report is submitted to the Network by Pr<strong>of</strong>. dr. Olivier De Schutter, UCL, co-ordinator <strong>of</strong> the EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights. The author thanks Pr<strong>of</strong>. dr. H. Labayle,member <strong>of</strong> the Network, for the information he contributed in the field <strong>of</strong> asylum.

Europe Direct is a service to help you find answersto your questions about the European UnionFreephone number:00 800 6 7 8 9 10 11A great deal <strong>of</strong> additional information on the European Union is available on the Internet.It can be accessed through the Europa server (http://<strong>eu</strong>ropa.<strong>eu</strong>.int).Cataloguing data can be found at the end <strong>of</strong> this publication.Luxembourg: Office for Official Publications <strong>of</strong> the European Communities, 2004ISBN92-894-7894-2© European Communities, 2004Reproduction is authorised provided the source is acknowledged.Printed in BelgiumPRINTED ON WHITE CHLORINE-FREE PAPER

Le Réseau UE d’Experts indépendants en matière de droits fondamentaux a été mis surpied par la Commission <strong>eu</strong>ropéenne (DG Justice et affaires intéri<strong>eu</strong>res), à la demande duParlement <strong>eu</strong>ropéen. Depuis 2002, il assure le suivi de la situation des droits fondamentauxdans les Etats membres et dans l’Union, sur la base de la Charte des droits fondamentaux del’Union <strong>eu</strong>ropéenne. Chaque Etat membre fait l’objet d’un rapport établi par un expert sous sapropre responsabilité, selon un canevas commun qui facilite la comparaison des donnéesrecueillies sur les différents Etats membres. Les activités des institutions de l’Union<strong>eu</strong>ropéenne font l’objet d’un rapport distinct, établi par le coordinat<strong>eu</strong>r. Sur la base del’ensemble de ces (26) rapports, les membres du Réseau identifient les principalesconclusions et recommandations qui se dégagent de l’année écoulée. Ces conclusions etrecommandation sont réunies dans un Rapport de synthèse, qui est remis aux institutions<strong>eu</strong>ropéennes. Le contenu du rapport n’engage en aucune manière l’institution qui en est lecommanditaire.Le Réseau UE d’Experts indépendants en matière de droits fondamentaux se compose deElvira Baltutyte (Lithuanie), Florence Benoît-Rohmer (France), Martin Buzinger (Rép.slovaque), Achilleas Demetriades (Chypre), Olivier De Schutter (Belgique), Maja Eriksson(Suède), Teresa Freixes (Espagne), Gabor Halmai (Hongrie), Wolfgang Heyde (Allemagne),Morten Kjaerum (Danemark), Henri Labayle (France), M. Rick Lawson (Pays-Bas), LauriMalksoo (Estonie), Arne Mavcic (Slovénie), Vital Moreira (Portugal), Jeremy McBride(Royaume-Uni), Bruno Nascimbene (Italie), Manfred Nowak (Autriche), Marek AntoniNowicki (Pologne), Donncha O’Connell (Irlande), Ian Refalo (Malte), Martin Scheinin(suppléant Tuomas Ojanen) (Finlande), Linos Alexandre Sicilianos (Grèce), Dean Spielmann(Luxembourg), Pavel Sturma (Rép. tchèque), Ineta Ziemele (Lettonie). Le Réseau estcoordonné par O. De Schutter, assisté par V. Verbruggen.Les documents du Réseau p<strong>eu</strong>vent être consultés via :http://www.<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/justice_home/cfr_cdf/index_fr.htmThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights has been set up by theEuropean Commission (DG Justice and Home Affairs), upon request <strong>of</strong> the EuropeanParliament. Since 2002, it monitors the situation <strong>of</strong> fundamental rights in the Member Statesand in the Union, on the basis <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. A Report is prepared oneach Member State, by a Member <strong>of</strong> the Network, under his/her own responsibility. Theactivities <strong>of</strong> the institutions <strong>of</strong> the European Union are evaluated in a separated report,prepared for the Network by the coordinator. On the basis <strong>of</strong> these (26) Reports, the members<strong>of</strong> the Network prepare a Synthesis Report, which identifies the main areas <strong>of</strong> concern andmakes certain recommendations. The conclusions and recommendations are submitted to theinstitutions <strong>of</strong> the Union. The content <strong>of</strong> the Report is not binding on the institutions.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights is composed <strong>of</strong> ElviraBaltutyte (Lithuania), Florence Benoît-Rohmer (France), Martin Buzinger (Slovak Republic),Achilleas Demetriades (Cyprus), Olivier De Schutter (Belgium), Maja Eriksson (Sweden),Teresa Freixes (Spain), Gabor Halmai (Hungary), Wolfgang Heyde (Germany), MortenKjaerum (Denmark), Henri Labayle (France), M. Rick Lawson (the Netherlands), LauriMalksoo (Estonia), Arne Mavcic (Slovenia), Vital Moreira (Portugal), Jeremy McBride(United Kingdom), Bruno Nascimbene (Italy), Manfred Nowak (Austria), Marek AntoniNowicki (Poland), Donncha O’Connell (Ireland), Ian Refalo (Malta), Martin Scheinin(substitute Tuomas Ojanen) (Finland), Linos Alexandre Sicilianos (Greece), Dean Spielmann(Luxemburg), Pavel Sturma (Czeck Republic), Ineta Ziemele (Latvia). The Network iscoordinated by O. De Schutter, with the assistance <strong>of</strong> V. Verbruggen.The documents <strong>of</strong> the Network may be consulted on :http://www.<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/justice_home/cfr_cdf/index_en.htm

TABLE OF CONTENTSINTRODUCTION..................................................................................................................... 9I. An <strong>independent</strong> mechanism for the evaluation <strong>of</strong> the fundamental rights in the Union.. 10I.1. The contribution <strong>of</strong> the Network to the identification <strong>of</strong> situations where emergesa clear risk <strong>of</strong> a serious breach <strong>of</strong> fundamental rights by a Member State..................... 10I.2. The contribution <strong>of</strong> the Network to the mutual learning by comparisons betweenthe Member States ........................................................................................................... 12I.3. The contribution <strong>of</strong> the Network to the prevention <strong>of</strong> breaches <strong>of</strong> fundamentalrights by the formulation <strong>of</strong> <strong>independent</strong> opinions.......................................................... 14I.4. The institutionalisation <strong>of</strong> monitoring in the field <strong>of</strong> fundamental rights: the<strong>independent</strong> Human Rights Agency <strong>of</strong> the EU................................................................. 15I.5. The lessons from enlargement: from mutual confidence to mutual evaluation......... 16II. Future directions <strong>of</strong> the fundamental rights policy <strong>of</strong> the Union.................................... 17II.1. Anchoring the activities <strong>of</strong> the Union in the international law <strong>of</strong> human rights...... 17II.2. Contributing to the respect by the Member States to their internationalobligations in the field <strong>of</strong> human rights........................................................................... 21II.3. Preventing the risk <strong>of</strong> violation <strong>of</strong> fundamental rights in the implementation <strong>of</strong>Union Law .......................................................................................................................30III. Conclusion..................................................................................................................... 35CHAPTER I : DIGNITY......................................................................................................... 37Article 1. Human dignity..................................................................................................... 37Article 2. Right to life.......................................................................................................... 37The integrated control <strong>of</strong> the external borders <strong>of</strong> the Union........................................... 37Prevention <strong>of</strong> violence against children, young people and women, and protection <strong>of</strong>victims and groups at risk................................................................................................ 40Article 3. Right to the integrity <strong>of</strong> the person...................................................................... 41Combating trafficking in human organs and tissues ....................................................... 41Community funding <strong>of</strong> research on human embryonic stem cells ................................... 42Article 4. Prohibition <strong>of</strong> torture and inhuman or degrading treatment or punishment ........ 42Article 5. Prohibition <strong>of</strong> slavery and forced labour ............................................................. 42Combating human trafficking.......................................................................................... 42CHAPTER II: FREEDOMS.................................................................................................... 44Article 6. Right to liberty and security ................................................................................ 44Detention <strong>of</strong> asylum-seekers............................................................................................ 44Detention <strong>of</strong> a person with a view to his surrender to another Member State................ 45Article 7. Respect for private and family life ...................................................................... 51Protection <strong>of</strong> foreign nationals from expulsion............................................................... 51Directive 2003/86/EC on the right to family r<strong>eu</strong>nification.............................................. 53The right <strong>of</strong> citizens <strong>of</strong> the Union and their family members to move and reside freelywithin the territory <strong>of</strong> the Member States........................................................................ 56Article 8. Protection <strong>of</strong> personal data .................................................................................. 57The communication <strong>of</strong> Passenger Names Records (PNR) by airline companiesoperating transatlantic flights to the US Bureau <strong>of</strong> Customs and Border Protection..... 58The communication by carriers, to the authorities <strong>of</strong> the State <strong>of</strong> destination, <strong>of</strong> datarelating to the passengers................................................................................................ 61The inclusion <strong>of</strong> biometric identifiers in the visa and the residence permit for thirdcountry nationals............................................................................................................. 62The evaluation <strong>of</strong> Directive 95/46/EC............................................................................. 64Data protection in the context <strong>of</strong> police cooperation ...................................................... 66Article 9. Right to marry and right to found a family.......................................................... 67Article 10. Freedom <strong>of</strong> thought, conscience and religion.................................................... 68Article 11. Freedom <strong>of</strong> expression and <strong>of</strong> information........................................................ 68Pluralism <strong>of</strong> the media..................................................................................................... 70

6EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSArticle 12. Freedom <strong>of</strong> assembly and <strong>of</strong> association........................................................... 74Article 13. Freedom <strong>of</strong> the arts and sciences....................................................................... 74Article 14. Right to education ............................................................................................. 77Article 15. Freedom to choose an occupation and right to engage in work ........................ 77Right <strong>of</strong> access to employment without discrimination for nationals <strong>of</strong> Member States. 77Status <strong>of</strong> third-country nationals..................................................................................... 79Article 16. Freedom to conduct a business.......................................................................... 79Article 17. Right to property ............................................................................................... 79Article 18. Right to asylum ................................................................................................. 80Minimum standards for the reception <strong>of</strong> asylum seekers in the Member States.............. 81Determination <strong>of</strong> the status <strong>of</strong> refugees or <strong>of</strong> persons qualifying for subsidiaryprotection......................................................................................................................... 82Definition <strong>of</strong> minimum standards on procedures for granting and withdrawingrefugee status................................................................................................................... 82Processing <strong>of</strong> asylum seekers outside the borders <strong>of</strong> the Union ..................................... 83Article 19. Protection in the event <strong>of</strong> removal, expulsion or extradition............................. 84The binding effect <strong>of</strong> the provisional measures adopted by the European Court <strong>of</strong>Human Rights .................................................................................................................. 84The Community return policy <strong>of</strong> persons staying illegally in the Member States ........... 85CHAPTER III : EQUALITY................................................................................................... 95Article 20. Equality before the law...................................................................................... 95Article 21. Non-discrimination............................................................................................ 95Directives based on Article 13 EC .................................................................................. 95Diversity in Business and the use <strong>of</strong> sensitive data in diversity policies ......................... 97Prohibition <strong>of</strong> discrimination on the ground <strong>of</strong> membership <strong>of</strong> a national minority .... 100Age-based discrimination in motor vehicles civil liability insurance ........................... 105Non-discrimination on grounds <strong>of</strong> nationality between nationals <strong>of</strong> Member States inthe scope <strong>of</strong> application <strong>of</strong> the Treaties......................................................................... 107Article 22. Cultural, religious and linguistic diversity ...................................................... 108Article 23. Equality between men and women.................................................................. 108Extension <strong>of</strong> the requirement <strong>of</strong> equal treatment between women and men in theaccess to, and the provision <strong>of</strong>, goods and services ...................................................... 108Developments within the case-law ................................................................................ 109Article 24. The rights <strong>of</strong> the child ..................................................................................... 111Article 25. The rights <strong>of</strong> the elderly .................................................................................. 111Article 26. Integration <strong>of</strong> persons with disabilities............................................................ 111CHAPTER IV : SOLIDARITY............................................................................................. 117Article 27. Worker’s right to information and consultation within the undertaking ......... 117Article 28. Right <strong>of</strong> collective bargaining and action........................................................ 117Article 29. Right <strong>of</strong> access to placement services ............................................................. 117Article 30. Protection in the event <strong>of</strong> unjustified dismissal............................................... 117The safeguarding <strong>of</strong> employees’ rights in the event <strong>of</strong> transfers <strong>of</strong> undertakings ......... 117The protection <strong>of</strong> workers in the event <strong>of</strong> their employer's insolvency.......................... 119The protection <strong>of</strong> the workers in the case <strong>of</strong> collective redundancies........................... 120Article 31. Fair and just working conditions ..................................................................... 120Article 32. Prohibition <strong>of</strong> child labour and protection <strong>of</strong> young people at work............... 122Article 33. Family and pr<strong>of</strong>essional life ............................................................................ 122Article 34. Social security and social assistance ............................................................... 122Co-ordination <strong>of</strong> social security schemes for third country nationals .......................... 122Reform <strong>of</strong> social security legislation ............................................................................. 122Article 35. Health care....................................................................................................... 123The “principle” <strong>of</strong> health care ...................................................................................... 123Health care and fundamental freedoms <strong>of</strong> the EC Treaty ............................................. 124Article 36. Access to services <strong>of</strong> general economic interest ............................................. 125Article 37. Environmental protection ................................................................................ 129CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 20037Criminalizing serious environmental <strong>of</strong>fences .............................................................. 130Guarantee the right <strong>of</strong> the public to access to environmental information................... 132Ensure public participation in respect <strong>of</strong> the drawing up <strong>of</strong> certain plans andprogrammes relating to the environment ...................................................................... 132The Aarhus Convention on access to information, public participation in decisionmaking and access to justice regarding environmental matters ................................... 133Article 38. Consumer protection ....................................................................................... 134CHAPTER V: CITIZEN’S RIGHTS .................................................................................... 134Article 39. Right to vote and to stand as a candidate at elections to the EuropeanParliament...................................................................................................................... 134Article 40. Right to vote and to stand as a candidate at municipal elections..................... 136Article 41. Right to good administration........................................................................... 136Article 42. Right <strong>of</strong> access to documents .......................................................................... 137Article 43. Ombudsman..................................................................................................... 140Article 44. Right to petition............................................................................................... 142Article 45. Freedom <strong>of</strong> movement and <strong>of</strong> residence ......................................................... 142Citizens <strong>of</strong> the European Union .................................................................................... 142The notion <strong>of</strong> « family members » ................................................................................. 143Territorial scope <strong>of</strong> the right <strong>of</strong> residence..................................................................... 149Third country nationals ................................................................................................. 150Individuals qualifying for status <strong>of</strong> long-term resident ................................................. 150Enhanced protection against expulsion for long-term residents................................... 150Article 46. Diplomatic and consular protection................................................................. 151CHAPTER VI : JUSTICE ..................................................................................................... 151Article 47. Right to an effective remedy and to a fair trial................................................ 151The right to an effective remedy in the system <strong>of</strong> legal remedies organized by the ECTreaty............................................................................................................................. 151The right <strong>of</strong> access to justice in environmental matters in the system <strong>of</strong> the EuropeanCommunity..................................................................................................................... 154The right <strong>of</strong> access to justice in environmental matters in the Member States ............. 157Improving access to justice in cross-border disputes.................................................... 158Article 48. Presumption <strong>of</strong> innocence and right <strong>of</strong> defence .............................................. 159The role <strong>of</strong> the Advocate General in the European Court <strong>of</strong> Justice............................. 159Procedural Safeguards for Suspects and Defendants in Criminal Proceedingsthroughout the European Union.................................................................................... 161Article 49. Principles <strong>of</strong> legality and proportionality <strong>of</strong> criminal <strong>of</strong>fences and penalties . 167Article 50. Right not to be tried or punished twice in criminal proceedings for the samecriminal <strong>of</strong>fence............................................................................................................. 168CFR-CDF.rep.UE.2003.en

INTRODUCTIONThe work programme 2003-2004 <strong>of</strong> the EU Network <strong>of</strong> Independent Experts in FundamentalRights provides that the preparation <strong>of</strong> a synthesis report, which will be presented to theCommission in March 2004, will be preceded by the elaboration <strong>of</strong> a series <strong>of</strong> 25 reports oneach <strong>of</strong> the Member States <strong>of</strong> the Union as well as <strong>of</strong> a report focussing on the activities <strong>of</strong> theinstitutions <strong>of</strong> the Union. It is in this framework that the present Report should be situated.The Report takes as reference the EU Charter <strong>of</strong> Fundamental Rights. It examines, in the light<strong>of</strong> the provisions <strong>of</strong> the Charter, the initiatives which the institutions <strong>of</strong> the Union have taken,during the year 2003.Three themes are central in the present Report: that <strong>of</strong> the anchoring <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights in the international law <strong>of</strong> human rights; that <strong>of</strong> the need to integrate theconcern for fundamental rights from the early stages <strong>of</strong> the elaboration <strong>of</strong> European law,according to an approach to fundamental rights which must be more preventive, and notsimply remedial; at last, that <strong>of</strong> the role the respect for fundamental rights has to play in themonitoring <strong>of</strong> the application or implementation <strong>of</strong> European law by the Member States. ThisIntroduction seeks to announce and develop these different themes. However, the Introductionalso seeks to locate the EU Network <strong>of</strong> Independent Experts in Fundamental Rights in itscontext: it will relate the contribution <strong>of</strong> the Network to the general policy <strong>of</strong> the Union in thefield <strong>of</strong> fundamental rights.The first part <strong>of</strong> the Introduction describes the current work <strong>of</strong> the Network and proposesavenues for its future development. With a view to clarifying the role <strong>of</strong> an <strong>independent</strong>mechanism monitoring the respect for fundamental rights in the Union, the Introduction firstrecalls the Communication which the Commission has presented to the Council and theEuropean Parliament on Article 7 <strong>of</strong> the Treaty on the European Union, “Respect for andpromotion <strong>of</strong> the values on which the Union is based » 1 (I.1.). The task which thiscommunication defines for the Network is distinct from the other missions it fulfils: toencourage, by the comparison <strong>of</strong> experiences, mutual learning between the Member States inthe field <strong>of</strong> fundamental rights (I.2.); and that <strong>of</strong> advising the institutions <strong>of</strong> the Union onproposals which could have an impact on the rights listed in the Charter <strong>of</strong> FundamentalRights (I.3.). In the future, these different missions will be fulfilled in close cooperation withan EU Human Rights Agency, <strong>of</strong> which the Network <strong>of</strong> Independent Experts could be animportant tool, in particular for the identification <strong>of</strong> questions which the comparison <strong>of</strong>national situations would demonstrate as relevant and for the expert legal opinions it willcontinue to deliver (I.4.). At last, it should be emphasized that the enlargement <strong>of</strong> the Unionmakes it particularly urgent to arrive at the institutionalisation <strong>of</strong> a mechanism <strong>of</strong> evaluation<strong>of</strong> the Union and its Member States (I.5.).The second part <strong>of</strong> the Introduction identifies the directions which the fundamental rightspolicy <strong>of</strong> the Union could take in the future. In fulfilling its missions, the EU Network <strong>of</strong>Independent Experts in Fundamental Rights has been careful to maintain a link betweeninternational and European human rights law and EU Law. This concern, for instance, guidesits reading <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. The same concern explains why theIntroduction insists on launching a reflection on the relationships between theUnion/Community and the international instruments which exist in the field <strong>of</strong> human rightsprotection (II.1.). The Introduction also examines how the Union or the Community couldcontribute better, in the exercise <strong>of</strong> their attributed competences, to facilitating the respect bythe Member States <strong>of</strong> the obligations which they are imposed by the international law <strong>of</strong>human rights (II.2.). As the very framing <strong>of</strong> this question already may reveal, the Reportconceives <strong>of</strong> the fundamental rights which the EU institutions must respect as, also, imposing1 COM (2003) 606 final, <strong>of</strong> 15.10.2003.

10EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSon those institutions certain obligations to act, although always in the strict boundaries set bythe principle <strong>of</strong> attributed competences and, for what concerns the competences sharedbetween the Union and the Member States, the principles <strong>of</strong> subsidiarity and proportionality.Indeed, this Report highlights that the risks <strong>of</strong> fundamental rights violations resulting from theactivities <strong>of</strong> the Union reside, rather than in what the institutions <strong>of</strong> the Union have done, inwhat they have failed to do, especially where it would have been possible to better clarify theobligations to respect fundamental rights which are imposed on the Member States when theyimplement Union law. The question <strong>of</strong> which positive obligations the Charter <strong>of</strong> FundamentalRights may impose on the institutions <strong>of</strong> the Union is the subject <strong>of</strong> the last section <strong>of</strong> theIntroduction (II.3.).The main lesson to be drawn is this one. Article 7 EU, although it may now fulfil a preventivefunction, could not constitute the exclusive instrument, nor even the main instrument, <strong>of</strong> thefundamental rights policy <strong>of</strong> the Union. Such a policy should first be based on the idea that,where they act and to the extent that they act, the institutions <strong>of</strong> the Union are under anobligation to contribute to the respect for fundamental rights by preventing the risk <strong>of</strong>violations occurring. This Report seeks to show what could have been done – what shouldhave been done, sometimes – to ensure that, by a better inclusion <strong>of</strong> the concern forfundamental rights from the early stages <strong>of</strong> the legislative process, Union law fulfils thispreventive function <strong>of</strong> human rights violations in its field <strong>of</strong> application.I. AN INDEPENDENT MECHANISM FOR THE EVALUATIONOF THE RESPECT OF FUNDAMENTAL RIGHTS IN THE UNIONI.1. The contribution <strong>of</strong> the Network to the identification <strong>of</strong> situations where emerges a clearrisk <strong>of</strong> a serious breach <strong>of</strong> fundamental rights by a Member StateSince the entry into force <strong>of</strong> the Nice Treaty on 1 February 2003 2 , Article 7 EU gives theCouncil the possibility to determine that there exists a clear risk <strong>of</strong> a serious breach by aMember State <strong>of</strong> the common values on which the Union is based – democracy, respect forhuman rights and fundamental freedoms, the rule <strong>of</strong> law 3 –, values the respect for which are acondition for membership <strong>of</strong> the Union 4 . This preventive mechanism, provided for in Article7(1) EU, now complements the possibility <strong>of</strong> adopting sanctions against a State which,according to the determination made by the Council, has seriously and persistently breachedthe principles mentioned in Article 6(1) EU 5 .The communication which the Commission presented to the Council and the EuropeanParliament on Article 7 EU, “Respect for and promotion <strong>of</strong> the values on which the Union isbased » 6 , identifies the two missions which the EU Network <strong>of</strong> Independent Experts inFundamental Rights can fulfil, in the specific context <strong>of</strong> that Article. First, the Network maycontribute to « detect fundamental rights anomalies or situations where there might bebreaches or the risk <strong>of</strong> breaches <strong>of</strong> these rights falling within Article 7 <strong>of</strong> the Union Treaty » :this is the monitoring function <strong>of</strong> the Network. Second, the Network can « help in findingsolutions to remedy confirmed anomalies or to prevent potential breaches » : this is itsrecommendation function. This definition <strong>of</strong> the tasks the Network can fulfil in the framework<strong>of</strong> Article 7 EU calls for three observations.2 OJ C 180, <strong>of</strong> 10.3.2001.3 Article 6(1) EU.4 Article 49 EU.5 Article 7(2) to (4) EU and, for the implementation <strong>of</strong> these sanctions in the framework <strong>of</strong> the EC Treaty, Article309 EC.6 COM (2003) 606 final, <strong>of</strong> 15.10.2003.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003111° Article 51 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights limits the invocability <strong>of</strong> the Charter onlyto those situations which concern the activities <strong>of</strong> the Union or those <strong>of</strong> the Member Stateswhere they implement Union law. This provision however cannot be seen as constituting anobstacle to the monitoring <strong>of</strong> the respect by the Member States <strong>of</strong> fundamental rights, also indomains which present no relationship to the law <strong>of</strong> the Union 7 . As the communication <strong>of</strong> theCommission notes, to justify the use <strong>of</strong> Article 7 EU, it is not necessary that the “clear risk <strong>of</strong>a serious breach” or the “serious and persistent breach” are located in the field <strong>of</strong> application<strong>of</strong> EU Law. In fact, because <strong>of</strong> the specific nature <strong>of</strong> the violations <strong>of</strong> fundamental rights or <strong>of</strong>other principles enunciated in Article 6(1) EU which Article 7 EU seeks to prevent or tosanction, we may even consider that, where a Member State breaches the fundamental rightsinscribed in the Charter when acting in the field <strong>of</strong> application <strong>of</strong> EU Law, it would bepreferable to rely on the usual mechanisms which should sanction any breaches <strong>of</strong>Union/Community law by a Member State. In particular, where the breach occurs in theapplication or the implementation <strong>of</strong> Community law, the European Commission should actin conformity with its role under Article 211 EC : it should request its observations from theState concerned, and possibly, after having giving its reasoned opinion to the State, launchproceedings before the European Court <strong>of</strong> Justice as provided under Article 226 EC. Ofcourse, such procedures should remain exceptional. To all the extent achievable, a solutionfounded on the cooperation between the Member States and the Commission should bepreferred, to avert the risk that situations which are not in conformity with Community lawpersist 8 . This is true also where the breach <strong>of</strong> EC Law has its sources in the violation <strong>of</strong>fundamental rights. The EU Network <strong>of</strong> Independent Experts in Fundamental Rightsconsiders however that it should alert the Commission to those situations where a dialoguebetween the Member State and the Commission could be indicated. The Network could alsorecommend to the Commission the presentation <strong>of</strong> interpretative communications, where theMember States would risk committing breaches <strong>of</strong> fundamental rights in the implementation<strong>of</strong> secondary EC Law, because <strong>of</strong> the lack <strong>of</strong> precision <strong>of</strong> certain provisions contained inthose instruments or because <strong>of</strong> the exceptions they provide for in favour <strong>of</strong> the MemberStates.2° The “common values” which are formulated in Article 6(1) EU are defined in broaderterms than would suggest the list <strong>of</strong> provisions <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights. Forinstance, the clear risk that the rights <strong>of</strong> national minorities may be violated, provided theseviolations may be considered “serious”, could justify resorting to the preventive mechanism<strong>of</strong> Article 7(1) EU, despite the fact that the rights <strong>of</strong> minorities are not guaranteed, as such, inthe Charter 9 . This results, first, from the fact that the two relevant instruments adopted withinthe Council <strong>of</strong> Europe on this question – the Framework Convention on the protection <strong>of</strong>national minorities, <strong>of</strong> 1 February 1995 and the European Charter for European or MinorityLanguages, <strong>of</strong> 5 November 1992 – are instruments to which the Member States have accededor to the elaboration <strong>of</strong> which they have cooperated ; second, it is a consequence <strong>of</strong> the7 See EU Network <strong>of</strong> Independent Experts in Fundamental Rights, Report on the situation <strong>of</strong> fundamental rights inthe European Union and its Member States in 2002, p. 17.8 Commission Communication « Better Monitoring <strong>of</strong> the Application <strong>of</strong> Community Law », COM(2002)725final/4, <strong>of</strong> 16.5.2003.9 However, Article 21 <strong>of</strong> the Charter protects from discrimination based on membership <strong>of</strong> a national minority : thecommentary <strong>of</strong> Article 21, her<strong>eu</strong>nder, will seek to identify the consequences which follow from such a protectionin terms <strong>of</strong> minority rights. Moreover, Article 22 <strong>of</strong> the Charter says that the Union shall respect cultural, religiousand linguistic diversity ; Article 3(3), al. 4, <strong>of</strong> the Draft Treaty establishing a Constsitution for Europe states that« The Union shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage issafeguarded and enhanced ». The conception <strong>of</strong> the requirements <strong>of</strong> diversity thus expressed remain unsufficient incomparison to the requirements which would be imposed, in particular, by the Framework Convention on theprotection <strong>of</strong> national minorities, <strong>of</strong> 1 February 1995 (ETS, n° 157), and the European Charter for European orMinority Languages, <strong>of</strong> 5 November 1992 (ETS, n° 148).CFR-CDF.rep.UE.2003.en

12EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSprotection <strong>of</strong> ethnic, religious, or linguistic minorities in Article 27 <strong>of</strong> the InternationalCovenant on Civil and Political Rights 10 .3° Article 7(1) EU provides that the Council the Council may address appropriaterecommendations to a Member State, once it is determined that there is a clear risk <strong>of</strong> aserious breach by a Member State <strong>of</strong> principles mentioned in Article 6(1) EU. This possibilityis not limited by the extent <strong>of</strong> the competences attributed to the Union / EuropeanCommunity. Thus for example, although the EC Treaty expressly excludes an intervention <strong>of</strong>the Community on the right to strike 11 – even only to complete the action <strong>of</strong> the MemberStates –, it would not be impossible for the Council to address recommendations to theMember State which, for instance, adopts a legislation seriously restricting the right to strike,or whose authorities remains passive in the face <strong>of</strong> a multiplication <strong>of</strong> situations whereemployers obtain from the judge injunctions ordering the cessation <strong>of</strong> the strike, in the name<strong>of</strong> freedom <strong>of</strong> occupation or <strong>of</strong> the right to property. These situations lead to a clear risk <strong>of</strong>violation <strong>of</strong> Article 28 <strong>of</strong> the Charter and <strong>of</strong> Article 11 <strong>of</strong> the European Convention on HumanRights which, if the violation is considered to be sufficiently serious, may justify the use <strong>of</strong>Article 7(1) EU. Similarly, the Council may on the basis <strong>of</strong> this Article addressrecommendations to the Member States whose places <strong>of</strong> detention clearly do not meet theminimal standards set by the Council <strong>of</strong> Europe, in particular such as these are defined by theEuropean Committee for the Prevention <strong>of</strong> Torture and Inhuman or Degrading Treatment orPunishment, despite the uncertainty surrounding the competence <strong>of</strong> the Union to adoptmeasures seeking to ensure that persons deprived <strong>of</strong> their liberty – either before trial, or afterbeing convicted by a criminal court – will benefit minimal conditions <strong>of</strong> detention throughoutthe Union.On the basis <strong>of</strong> its examination <strong>of</strong> the situation <strong>of</strong> fundamental rights in the Union and itsMember States, the EU Network <strong>of</strong> Independent Experts in Fundamental Rights couldtherefore express its concern with respect to situations which create a clear risk <strong>of</strong> seriousbreaches <strong>of</strong> fundamental rights in the meaning <strong>of</strong> Article 7(1) EU, including where suchsituations would not constitute, strictly speaking, a violation <strong>of</strong> the Charter <strong>of</strong> FundamentalRights, even if the risk were to materialize. In order to evaluate the reality <strong>of</strong> the risk <strong>of</strong> such abreach, the Network shall attach particular importance to the circumstance that a MemberState <strong>of</strong> the Union has repeatedly been found to be in violation <strong>of</strong> its international obligationsin the field <strong>of</strong> human rights, by international jurisdictions or control mechanisms, and yet hasabstained from adopting the remedial measures these findings would seem to call for. In sucha situation, the risk <strong>of</strong> a breach is clearly established: if the concerned State has adopted nomeasure to comply with a determination according to which, for instance, it should adopt aparticular legislation or modify the legislation in force, the violation which has led to such adetermination obviously risks repeating itself in the future.I.2. The contribution <strong>of</strong> the Network to the mutual learning by comparisons between theMember StatesThe recommendations <strong>of</strong> the EU Network <strong>of</strong> Independent Experts in Fundamental Rights,although they may contribute to the mechanism set up by Article 7(1) EU, also may fulfilanother function. The communication <strong>of</strong> the Commission underlines that even in the absence<strong>of</strong> a clear risk <strong>of</strong> a serious breach, the monitoring by the Networkhas an essential preventive role in that it can provide ideas for achieving the area <strong>of</strong>freedom, security and justice or alerting the institutions to divergent trends in10 Indeed, the communication <strong>of</strong> 15 October 2003 notes that in order to evaluate the « seriousness » <strong>of</strong> a breach tothe principles <strong>of</strong> Article 6(1) EU, « the analysis could be influenced by the fact that they are vulnerable, as in thecase <strong>of</strong> national, ethnic or religious minorities (…) » (p. 8).11 Article 137(5) EC, as modified by Article 2(9) <strong>of</strong> the Nice Treaty.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200313standards <strong>of</strong> protection between Member States which could imperil the mutual truston which Union policies are founded.This function is indeed distinct from that <strong>of</strong> identifying situations which may lead to usingArticle 7 EU, as a preventive mechanism or, in the face <strong>of</strong> a persistent and serious breach, forthe suspension <strong>of</strong> certain rights <strong>of</strong> the State concerned under the EU Treaty or the EC Treaty.This function resembles more that which is defined, for the Working Party on Data Protectioninstituted by Article 29 <strong>of</strong> Directive 95/46/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council<strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals with regard to the processing <strong>of</strong> personaldata and on the free movement <strong>of</strong> such data 12 , by Article 30(2) <strong>of</strong> this Directive, which statesthat « If the Working Party finds that divergences likely to affect the equivalence <strong>of</strong>protection for persons with regard to the processing <strong>of</strong> personal data in the Community arearising between the laws or practices <strong>of</strong> Member States, it shall inform the Commissionaccordingly ».It is clear that the establishment <strong>of</strong> an area <strong>of</strong> freedom, security and justice, <strong>of</strong>fering a highlevel <strong>of</strong> protection to the citizens, like that <strong>of</strong> a single market where competition is free andundistorted, may be encouraged by the definition <strong>of</strong> fundamental rights at a comparable levelthroughout the Union. This however does not mean that each time significant differences arefound to exist between the Member States, an initiative from the Union is called for. First, theUnion only may exercise those competences which the Member States have attributed to it,and any infringement <strong>of</strong> the principle <strong>of</strong> attributed competences may be sanctioned by theEuropean Court <strong>of</strong> Justice. Second, in the field <strong>of</strong> fundamental rights, the existence <strong>of</strong> anequivalent level <strong>of</strong> protection is compatible with a diversity <strong>of</strong> practices or approaches: thatwe ought to guarantee throughout the Union a same level <strong>of</strong> protection, does not mean thatthe solutions to given problems must be in all cases uniform. Where noteworthy divergencesoccur between Member States, therefore, it should be examined whether these divergencescorrespond to different national traditions, answering to specific circumstances, or whetherthey truly create a risk for the unity <strong>of</strong> the area which the Member States <strong>of</strong> the Union nowshare – and, if this indeed appears to be the case, whether the Union has the competencesrequired to remedy to such a situation. In principle, an initiative from the EU institutions willbe appropriate only when two conditions are fulfilled: divergences between the MemberStates represent a threat to the unity <strong>of</strong> the area which they share, either because they shakethe mutual confidence the States have in their respective police and judicial systems, orbecause they threaten the unity <strong>of</strong> the single market; and the Union / the Community have acompetence which make it possible for them to counter this risk.The comparison <strong>of</strong> national situations which the EU Network <strong>of</strong> Independent Experts inFundamental Rights presents at least on an annual basis for all the rights listed in the Charter<strong>of</strong> Fundamental Rights, does not have as unique objective to identify the initiatives which,within the boundaries which have just been recalled, the Union could take to preserve th<strong>eu</strong>nity <strong>of</strong> the area <strong>of</strong> freedom, security and justice and <strong>of</strong> the internal market. Such acomparison also has another function to perform, where the Union does not have the requiredcompetences to react to emerging divergences between the Member States in the field <strong>of</strong>fundamental rights and where the comparison does not indicate a clear risk <strong>of</strong> a serious breach<strong>of</strong> fundamental rights which could justify the use <strong>of</strong> Article 7(1) EU. Indeed, the comparisoncould be an occasion for mutual learning, by the sharing <strong>of</strong> experiences which it makespossible and more systematic.12 OJ L 281 <strong>of</strong> 23.11.1995, p. 31. The Working Party « Article 29 » also exercices this mission under the Directive2002/58/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 12 July 2002 concerning the processing <strong>of</strong> personaldata and the protection <strong>of</strong> privacy in the electronic communications sector (Directive on privacy and electroniccommunications) (OJ n° L 201, 31.7.2002, p. 37), in accordance with Art. 15(3) <strong>of</strong> this Directive.CFR-CDF.rep.UE.2003.en

14EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSThis latter function will not however be fully performed until the Member States are moreclosely implicated in the exercise <strong>of</strong> mutual evaluation in the field <strong>of</strong> fundamental rights. Inits communication <strong>of</strong> 15 October 2003, the Commission proposes in this respect – to improvesuch an implication – to organise regular meetings, with a view to exchange information andshare experiences, with the national instances competent in the field <strong>of</strong> fundamental rights,around the information collected by the Network. In the Report on the situation <strong>of</strong>fundamental rights in the European Union and Its Member States in 2002, the EU Network <strong>of</strong>Independent Experts in Fundamental Rights already had noted why such an initiative shouldbe encouraged.The creation <strong>of</strong> such a dialogue, on the initiative <strong>of</strong> the Commission, between the Networkand the Member States, should go hand in hand with a more systematic consultation betweenthe Network and the human rights non-governmental organisations representative at EUlevel 13 . It could also be combined with the organisation, by each Independent Expert, inhis/her own country, <strong>of</strong> consultations both with the civil society as with the public authorities.In particular, each individual Expert could in the future be requested to set up an annualhearing with a view to identifying the questions relating to the protection <strong>of</strong> fundamentalrights at the national level which are <strong>of</strong> European interest. This specificity must beparticularly emphasised 14 . The questions relating to fundamental rights which, although theyare located in one Member State (and therefore in principle concern only the situation <strong>of</strong>fundamental rights in that State), acquire a European dimension, belong to four categories: 1°breaches <strong>of</strong> fundamental rights which are situated in the field <strong>of</strong> application <strong>of</strong> EU Law and,therefore, are violations <strong>of</strong> EU Law in their own right (for example, these breaches occur inthe course <strong>of</strong> the application <strong>of</strong> a regulation or <strong>of</strong> the implementation <strong>of</strong> a directive or aframework decision); 2° situations revealing a clear risk <strong>of</strong> a serious breach <strong>of</strong> human rightsand fundamental freedoms, or a persistent and serious breach <strong>of</strong> such values, which couldjustify the use <strong>of</strong> Article 7 EU; 3° situations which lead to the creation <strong>of</strong> divergencesbetween the Member States, affecting the mutual confidence on which the area <strong>of</strong> freedom,security and justice is based or threatening the unity <strong>of</strong> the internal market; 4° initiativesadopted at the national level which could be considered best practices, the dissemination <strong>of</strong>which in other States could be encouraged. These annual forums held at national level couldbe organized around these different categories, although the latter two categories wouldnormally be, quantitatively, the richest.I.3. The contribution <strong>of</strong> the Network to the prevention <strong>of</strong> breaches <strong>of</strong> fundamental rights bythe formulation <strong>of</strong> <strong>independent</strong> opinionsThe EU Network <strong>of</strong> Independent Experts in Fundamental Rights fulfils its two abovementionedmissions by the preparation <strong>of</strong> annual reports on the situation <strong>of</strong> fundamentalrights in the Union and in each <strong>of</strong> its Member States. The Network however is also regularlyrequested by the Commission to prepare opinions on questions relating to the protection <strong>of</strong>fundamental rights in the Union. These opinions are fully <strong>independent</strong>. They are bindingneither on the Commission, nor on the European Parliament. In most cases, they are based ona comparison, as complete as possible, <strong>of</strong> the situations which exist in the different MemberStates on a given question. They systematically seek to take into account the state <strong>of</strong> theinternational and European law <strong>of</strong> human rights, rather than only the fundamental rightsalready explicitly recognized in the legal order <strong>of</strong> the European Union. Indeed, the13 The Network has organized a hearing <strong>of</strong> a limited number <strong>of</strong> non-governmental organisations in the humanrights field on 16 October 2003, in the premises <strong>of</strong> the European Parliament.14 Were such a suggestion to be retained, it will be important to define precisely the purpose <strong>of</strong> such hearings byrelating them to the competences <strong>of</strong> the Union. Such a mechanism should only be instituted if it truly adds value tothe mechanisms which exist already in that field. The experience <strong>of</strong> the « organized roundtables » set up in theMember States by the European Monitoring Centre on Racism and Xenophobia are a useful reference point : theseroundtables have finally been considered disappointing once their results were compared with the investment theyrequired.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200315Independent Experts composing the Network consider that the rights <strong>of</strong> the EU Charter <strong>of</strong>Fundamental Rights should be interpreted in conformity with the corresponding provisions <strong>of</strong>the relevant international and European instruments adopted in the field <strong>of</strong> human rightsprotection. They also consider, in conformity with Article 53 <strong>of</strong> the Charter, that where theCharter <strong>of</strong>fers either a lesser protection or a protection which is formulated in more vagueterms, it would not be justified to use the Charter as a pretext to diminish the level <strong>of</strong>protection <strong>of</strong>fered at least by the instruments to which all the Member States are parties.By the formulation <strong>of</strong> such opinions, the Network can contribute to a better taking intoaccount <strong>of</strong> the requirements <strong>of</strong> fundamental rights from the initial stages <strong>of</strong> the legislativeprocess. This function <strong>of</strong> the Network should be developed in the future. It is essential if, asproposed in this Report, the European legislator meets up to the challenge <strong>of</strong> bettercircumscribing in the future the margin <strong>of</strong> appreciation <strong>of</strong> the Member States in theimplementation <strong>of</strong> the instruments adopted within the Union, where such implementationcould lead to breaches <strong>of</strong> fundamental rights by the Member States. The last section <strong>of</strong> thisIntroduction seeks to identify better the preventive function which a better identification <strong>of</strong>the obligations imposed on the Member States in the field <strong>of</strong> fundamental rights could fulfil,where the national authorities act in the field <strong>of</strong> application <strong>of</strong> Union law. This would befavourable not only to an improved protection <strong>of</strong> fundamental rights in the Union, but also tolegal certainty, including that <strong>of</strong> the Member States (see her<strong>eu</strong>nder, II.3.).I.4. The institutionalisation <strong>of</strong> monitoring in the field <strong>of</strong> fundamental rights: the <strong>independent</strong>Human Rights Agency <strong>of</strong> the EUIn 2005 or 2006, an <strong>independent</strong> Human Rights Agency may <strong>of</strong>fer the Network theinstitutional support it requires to take account the expansion <strong>of</strong> its missions and the need,therefore, to provide it with supplementary means, especially with respect to the collection <strong>of</strong>data concerning the practice <strong>of</strong> national authorities and the use <strong>of</strong> indicators to monitor theevolution <strong>of</strong> these practices and compare these evolutions across the Member States. Theconclusions adopted by the Member States’ Representatives at the Brussels Council <strong>of</strong> 12-13December 2003 call for the creation <strong>of</strong> such an Agency, which should result from anenlargement <strong>of</strong> the competences <strong>of</strong> the EU Monitoring Centre created by the CouncilRegulation (EC) 1035/97 <strong>of</strong> 2 June 1997 establishing a European Monitoring Centre onRacism and Xenophobia 15 . This choice could seem at first surprising. On the basis <strong>of</strong> anexternal evaluation <strong>of</strong> the activities <strong>of</strong> the EUMC between its creation in 1998 and end2001 16 , the Commission has considered, indeed, in its communication <strong>of</strong> 5 August 2003, that« the Centre should continue to concentrate on racism and that an extension to other fieldswould be an unwelcome distraction within the limits <strong>of</strong> the resources likely to be available tothe Centre and that it would lead to a weakening <strong>of</strong> the emphasis on racism » 17 . It is evidentthat the specialisation <strong>of</strong> the activities <strong>of</strong> the EUMC, which demonstrates the importancewhich the institutions attach to the need to combat the phenomena <strong>of</strong> racism and xenophobia,as well as the definition <strong>of</strong> its main task, which resides in the collection and processing <strong>of</strong>informations rather than in the preparation <strong>of</strong> legal opinions 18 , seem to clearly distinguish theactivities <strong>of</strong> the EUMC from those <strong>of</strong> an <strong>independent</strong> Human Rights Agency for the Union.15 OJ L 151 <strong>of</strong> 10.6.1997, p. 1.16 http://<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/employment_social/fundamental_rights/pdf/origin/<strong>eu</strong>mc_eval2002_en.pdf17 Communication from the Commission to the Council, the European Parliament, the European Economic andSocial Committee and the Committee <strong>of</strong> the Regions on the Activities <strong>of</strong> the European Monitoring Centre onRacism and Xenophobia, together with proposals to recast Council Regulation (EC) 1035/97, COM(2003)483final <strong>of</strong> 5.8.2003.18 According to Article 2(1) <strong>of</strong> its instituting Regulatin, the EUMC must « provide the Community and its MemberStates (…) with objective, reliable and comparable data at European level on the phenomena <strong>of</strong> racism,xenophobia and anti-Semitism in order to help them when they take measures or formulate courses <strong>of</strong> actionwithin their respective spheres <strong>of</strong> competence ».CFR-CDF.rep.UE.2003.en

16EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSFor the new Agency, the challenge will be to build on the experience <strong>of</strong> the Vienna EUMC onRacism and Xenophobia – especially in the field <strong>of</strong> collection and analysis <strong>of</strong> data, whichrequires the definition <strong>of</strong> indicators bot reliable and comparable throughout all the MemberStates – whilst organising its relationship to the Network <strong>of</strong> Independent Experts inFundamental Rights, whose tasks could be focused on the delivery <strong>of</strong> an expert legal adviceon the fields covered by the Charter. This would <strong>of</strong> course require the confirmation in its role<strong>of</strong> the Network <strong>of</strong> <strong>independent</strong> <strong>experts</strong> in fundamental rights, covering all the Member Statesand capable <strong>of</strong> monitoring the situation <strong>of</strong> fundamental rights in all the domains covered bythe Charter, in conformity with the form <strong>of</strong> monitoring called for by the communicationpresented by the Commission on 15 October 2003. The prospect <strong>of</strong> such an Agency also callsfor a new reflection on the functions <strong>of</strong> the EU Network <strong>of</strong> Independent Experts inFundamental Rights. Thus for example, it could be envisaged to give the possibility to theNetwork to deliver opinions on its own initiative on any question relating to the impact <strong>of</strong>initiatives <strong>of</strong> the Union on fundamental rights recognized in the Charter, between twoperiodical reports. It should also be examined whether, when an opinion is requested from theNetwork, it would not be desirable and in the logic <strong>of</strong> the monitoring mechanism, that theCommission inform the Network <strong>of</strong> the follow-up made <strong>of</strong> the opinion, in a report whichcould be transmitted also to the European Parliament and the Council 19 . Moreover, therelationship <strong>of</strong> the EU Network <strong>of</strong> Independent Experts in Fundamental Rights and theIndependent Agency with the Ombudsman <strong>of</strong> the European Union and with the EuropeanCommission should be organised so that the complaints filed with these institutions cancontribute effectively to the information provided to the Agency and to the Network as to thefundamental rights issues faced by the European citizens. Finally, the Agency should establishstructural links with the competent instances <strong>of</strong> the Council <strong>of</strong> Europe in the differentdomains which the Charter <strong>of</strong> Fundamental Rights covers 20 .I.5. The lessons from enlargement: from mutual confidence to mutual evaluationThe integration <strong>of</strong> a preventive dimension in the fundamental rights policy <strong>of</strong> the Union nowbecomes all the more urgent with the enlargement <strong>of</strong> the Union to ten new Members. The newMember States are all parties to the main international instruments for the protection <strong>of</strong>human rights. Their achievements in that field have been regularly monitored by the EuropeanCommission as well as by the Council, through the “Collective Evaluation” (Coleval) Groupentrusted with the preparation <strong>of</strong> evaluation reports for the Committee <strong>of</strong> permanentrepresentatives. This follow-up has focussed not only on the respect <strong>of</strong> the so-called“political” criteria defined at the Copenhagen European Council <strong>of</strong> June 1993, but also on thecapacity <strong>of</strong> the new Member States to integrate the acquis <strong>of</strong> the Union in the fields <strong>of</strong> Justiceand Home Affairs. However, despite the quality <strong>of</strong> the precautions which have been taken,enlargement necessarily augments the diversity <strong>of</strong> traditions and <strong>of</strong> judicial and administrativesystems. Potentially at least, divergent standards therefore may appear between the MemberStates. They can threaten the uniformity <strong>of</strong> application <strong>of</strong> Union law.There have been two reactions to this situation. First, we have witnessed recently amultiplication <strong>of</strong> evaluation mechanisms, devised to ensure a better monitoring <strong>of</strong> theinstruments adopted in the field <strong>of</strong> Justice and Home Affairs 21 . The draft Treaty establishing a19 Comp. Article 30 (3) and (5) <strong>of</strong> Directive 95/46/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 24October 1995 on the protection <strong>of</strong> individuals with regard to the processing <strong>of</strong> personal data and on the freemovement <strong>of</strong> such data, OJ L 281 <strong>of</strong> 23.11.1995, p. 31.20 The Vienna EUMC can constitute a useful example in this respect : the Council <strong>of</strong> Europe is represented in itsboard <strong>of</strong> directors.21 See, e.g., the Joint Action (97/827/JHA) <strong>of</strong> 5 December 1997 adopted by the Council on the basis <strong>of</strong> Article K.3<strong>of</strong> the Treaty on European Union, establishing a mechanism for evaluating the application and implementation atnational level <strong>of</strong> international undertakings in the fight against organized crime, OJ L 344 <strong>of</strong> 15.12.1997, p. 7 ;Joint Action (98/429/JHA) <strong>of</strong> 29 June 1998 adopted by the Council on the basis <strong>of</strong> Article K.3 <strong>of</strong> the Treaty onEuropean Union, establishing a mechanism for collective evaluation <strong>of</strong> the enactment, application and effectiveimplementation by the applicant countries <strong>of</strong> the acquis <strong>of</strong> the European Union in the field <strong>of</strong> Justice and HomeCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200317Constitution for Europe intends to systematize such a mechanism, under Article III-161 <strong>of</strong> theConstitution:…the Council <strong>of</strong> Ministers may, on a proposal from the Commission, adopt Europeanregulations or decisions laying down the arrangements whereby Member States, incollaboration with the Commission, conduct objective and impartial evaluation <strong>of</strong> theimplementation <strong>of</strong> the Union policies referred to in this Chapter by Member States'authorities, in particular in order to facilitate full application <strong>of</strong> the principle <strong>of</strong> mutualrecognition. The European Parliament and Member States’ national Parliaments shallbe informed <strong>of</strong> the content and results <strong>of</strong> the evaluation.Secondly, the Act <strong>of</strong> Accession <strong>of</strong> the new Member States to the Union, signed in Athens on16 April 2003, contains a safeguard clause in the areas <strong>of</strong> justice and home affairs (Article39). This clause provides that the Commission may – until 1 May 2007 – take “appropriatemeasures”, including in particular temporary suspension <strong>of</strong> the application <strong>of</strong> provisions anddecisions organising the mutual recognition in the criminal field (Title VI EU) or in the civilfield (Title IV <strong>of</strong> the 3d part <strong>of</strong> the EC Treaty), where “there are serious shortcomings or anyimminent risks <strong>of</strong> such shortcomings in the transposition, state <strong>of</strong> implementation, or theapplication <strong>of</strong> the framework decisions or any other relevant commitments, instruments <strong>of</strong>cooperation and decisions” in those fields. The Commission may act upon its own motion, orupon motivation request <strong>of</strong> a Member State. Before acting, the Commission consults theMember States. The measures are maintained only as long as the shortcomings persist, butwhere they are not remedies, they may continue beyond the 1 May 2007. Furthermore, “inresponse to progress made by the new Member State concerned in rectifying the identifiedshortcomings, the Commission may adapt the measures as appropriate after consulting theMember States”.These different evaluation mechanisms and safeguard clauses, whether applicable only withrespect to the new Member States or inspired by the perspective <strong>of</strong> enlargement but by whichthe States impose themselves a collective constraint, may also contribute to guarantee a betterrespect <strong>of</strong> fundamental rights. Perhaps this is not their main or primary purpose. Fundamentalrights could nevertheless be, in the future, their privileged field <strong>of</strong> application. Theenlargement has convinced the Member States <strong>of</strong> the Union that the mutual confidence onwhich the area <strong>of</strong> freedom, security, and justice is based, cannot be given once and for all, andcannot be simply stipulated as an article <strong>of</strong> faith. It must be accompanied by mechanisms formutual monitoring, without which mutual confidence may progressively be eroded.II. FUTURE DIRECTIONS OF THEFUNDAMENTAL RIGHTS POLICY OF THE UNIONII.1. Anchoring the activities <strong>of</strong> the Union in the international law <strong>of</strong> human rightsThis Report examines the activity <strong>of</strong> the institutions <strong>of</strong> the Union in 2003 in the light <strong>of</strong> therequirements <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. The setting up <strong>of</strong> an internal monitoringmechanism on the institutions, coupled with a preventive mechanism when the EU Network<strong>of</strong> Independent Experts in Fundamental Rights is requested to deliver opinions on initiativestaken by the institutions, appears all the more indispensable if one considers that neither theCommunity, nor the Union are subject to an external control <strong>of</strong> their activities, with regard tothe requirements <strong>of</strong> the international law <strong>of</strong> human rights. Although both the EuropeanAffairs, OJ L 191 <strong>of</strong> 7.7.1998, p. 8 ; Decision <strong>of</strong> the Executive Committee <strong>of</strong> 16 September 1998 setting up aStanding Committee on the evaluation and implementation <strong>of</strong> Schengen (SCH/ Com-ex (98) 26 def.), OJ L 239 <strong>of</strong>22.9.2000, p. 138 ; Council Decision (2002/996/JHA) <strong>of</strong> 28 November 2002 establishing a mechanism forevaluating the legal systems and their implementation at national level in the fight against terrorism, OJ L 349 <strong>of</strong>24.12.2002, p. 1.CFR-CDF.rep.UE.2003.en

18EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSCommunity and the European Union are to be considered as having an international legalpersonality 22 , there still lacks any general reflection within the institutions <strong>of</strong> the Union as toeither accession to the international instruments in the field <strong>of</strong> human rights to which theMember States are parties, or even the elementary requirement to integrate the requirements<strong>of</strong> the international law <strong>of</strong> human rights in the activities <strong>of</strong> the Union.As it has already noted in its first Report, concerning the situation <strong>of</strong> fundamental rights in theUnion and its Member States during the year 2002, the EU Network <strong>of</strong> Independent Expertsin Fundamental Rights considers that it is part <strong>of</strong> its objectives to encourage such anintegration. Soon however, the process <strong>of</strong> constitutionalization <strong>of</strong> the law <strong>of</strong> the Union callsfor a renewed reflection on the relationship <strong>of</strong> the Union to the international law <strong>of</strong> humanrights. Of course, the external competences <strong>of</strong> the Union remain regulated, as are its internalcompetences, by the principle <strong>of</strong> attribution. However, the competence <strong>of</strong> the Union toconclude international agreements, like that <strong>of</strong> the European Community, “arises not onlyfrom an express conferment by the Treaty (…) but may equally flow from other provisions <strong>of</strong>the Treaty and from measures adopted, within the framework <strong>of</strong> those provisions, by theCommunity institutions” 23 . The existence <strong>of</strong> an implicit external competence <strong>of</strong> the EuropeanCommunity, today, is admitted either where it corresponds to internal competences <strong>of</strong> theCommunity (first hypothesis), or where the conclusion by the Community <strong>of</strong> an internationalagreement is necessary in the functioning <strong>of</strong> the common market, to the realisation <strong>of</strong> anobject <strong>of</strong> the Community defined by the Treaty (second hypothesis).The first hypothesis corresponds to the idea that “with regard to the implementation <strong>of</strong> theprovisions <strong>of</strong> the Treaty the system <strong>of</strong> internal Community measures may not (…) beseparated from that <strong>of</strong> external relations” 24 . Therefore, “whenever Community law has createdfor the institutions <strong>of</strong> the Community powers within its internal system for the purpose <strong>of</strong>attaining a specific objective, the Community has authority to enter into the internationalcommitments necessary for the attainment <strong>of</strong> that objective even in the absence <strong>of</strong> an expressprovision in that connection” 25 . This is the case either when the internal power “has alreadybeen used in order to adopt measures which come within the attainment <strong>of</strong> common policies”,or, even in the absence <strong>of</strong> such internal measures, “in so far as the participation <strong>of</strong> theCommunity in the international agreement is […] necessary for the objectives <strong>of</strong> theCommunity” 26 .The second hypothesis is based on the use <strong>of</strong> Article 308 EC (ex-Article 235 <strong>of</strong> the ECTreaty), concerning the implicit powers <strong>of</strong> the Community, which provides that th<strong>eu</strong>nanimous Council can take the required measures “If action by the Community should prove22 The Treaty <strong>of</strong> Rome attributes such an international legal personality to the European Community : see Article281 EC (ex-Article 210 <strong>of</strong> the EC Treaty). With respect to the Union, this personality derives from the competencewhich it has since the entry into force <strong>of</strong> the Treaty <strong>of</strong> Amsterdam on 1 May 1999, at Article 24 EU, to concludeinternational agreements with States or international organisations. Such an agreement binds the Union as such,and not only the Member States who act together in the framework <strong>of</strong> the EU Treaty: indeed, the State whichabstains from voting within the Council when the Council concludes an international agreement can make a formaldeclaration in which case “it shall not be obliged to apply the decision, but shall accept that the decision commitsthe Union » (Article 23(1), al. 2, EU). The existence <strong>of</strong> such a competence to conclude international agreementssuffices to create the international legal personality. There is no requirement <strong>of</strong> a formal attribution <strong>of</strong> suchpersonality, for instance in the Act constituting the international organisation. See ICJ, opinion relating to thereparation <strong>of</strong> damages incurred in service <strong>of</strong> the United Nations, 11 April 1949, Reports, 1949, p. 174.23 ECJ, 31 March 1971, Commission v. Council (« European Road Transport Agreement »), Case 22/70, ECR 265,Recital 16.24 ECJ, 31 March 1971, Commission v. Council (« European Road Transport Agreement »), Case 22/70, ECR 265,Recital 19.25 ECJ, 26 April 1977, Opinion 1/76, ECR 741, Recital 3.26 ECJ, 26 April 1977, Opinion 1/76, ECR 741, Recital 4.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200319necessary to attain, in the course <strong>of</strong> the operation <strong>of</strong> the common market, one <strong>of</strong> the objectives<strong>of</strong> the Community, and [the EC Treaty] has not provided the necessary powers (…) » 27 .The draft Constitution for Europe confirms this reading in Article III-225(1) :The Union may conclude agreements with one or more third countries or internationalorganisations where the Constitution so provides or where the conclusion <strong>of</strong> anagreement is necessary in order to achieve, within the framework <strong>of</strong> the Union'spolicies, one <strong>of</strong> the objectives fixed by the Constitution, where there is provision for itin a binding Union legislative act or where it affects one <strong>of</strong> the Union's internal acts.In the absence <strong>of</strong> a general power <strong>of</strong> the Community or the Union in the field <strong>of</strong> fundamentalrights 28 , the limits imposed on the exercise <strong>of</strong> the international powers <strong>of</strong> the Community orthe Union are a serious obstacle to their accession to international instruments for theprotection <strong>of</strong> human rights 29 . However, even under the present definition <strong>of</strong> the externalpowers <strong>of</strong> the Union / Community, the accession to a number <strong>of</strong> international instruments inthe field <strong>of</strong> human rights protection may be envisaged, at least from the point <strong>of</strong> view <strong>of</strong>Union law 30 : just like the achievements <strong>of</strong> the European Community in the field <strong>of</strong> dataprotection has been deemed sufficient for the accession <strong>of</strong> the Community to the conventionconcluded on this question in the framework <strong>of</strong> the Council <strong>of</strong> Europe 31 , similarly the acquis<strong>of</strong> EC Law in the field <strong>of</strong> equal treatment between women and men and in the field <strong>of</strong> nondiscriminationon grounds <strong>of</strong> race or ethnic origin would appear sufficient to identify a power<strong>of</strong> the Community to accede to the United Nations Conventions on the Elimination <strong>of</strong> AllForms <strong>of</strong> Discrimination against Women (CEDAW) 32 and on the Elimination <strong>of</strong> All Forms <strong>of</strong>Racial Discrimination (CERD) 33 . The Communication which the Commission presented on 24January 2003 to the Council and the European Parliament, “Towards a United Nations legallybinding instrument to promote and protect the rights and dignity <strong>of</strong> persons withdisabilities” 34 , fits into this evolution, which must be approved <strong>of</strong> and further deepened. Norcan we exclude that, in the areas covered by the Revised European Social Charter <strong>of</strong> 3 May1996 (ETS, n° 163) or the Geneva Convention on the status <strong>of</strong> refugees <strong>of</strong> 28 July 1951, theexercise by the Union/Community <strong>of</strong> its powers – which it shares with the Member States –could lead to recognize it a power to accede to these instruments.27 On the use <strong>of</strong> this provision in such a context, see ECJ, 24 March 1995, Power <strong>of</strong> the Community or <strong>of</strong> one <strong>of</strong> itsinstitutions to participate in the third revised decision <strong>of</strong> the OECD Council on national treatment, Opinion 2/92,ECR I-521.28 ECJ, 28 March 1996, Accession <strong>of</strong> the European Community to the European Convention for the Protection <strong>of</strong>Human Rights and Fundamental Freedoms, Opinion 2/94, ECR I-1759, Recital 20.29 Comp. with Article 7(2) <strong>of</strong> the Draft Constitution for Europe, providing that « The Union shall seek accession tothe European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms. Such accession shallnot affect the Union's competences as defined in the Constitution ».30 The accession <strong>of</strong> the Community / the Union to international agreements <strong>of</strong> course presupposes that the otherparties to these agreements consent to such an accession. As the Community / Union are not « States » underinternational law, this will require in most cases amending protocols, where the agreement provides only for theaccession <strong>of</strong> States. In certain cases, this particularly heavy procedure can be dispensed with by a procedure <strong>of</strong>« negative notification » (« opting out »), under which an amending protocol providing for the accession <strong>of</strong> theUnion / Community will enter into force at the expiration <strong>of</strong> a defined period, unless one <strong>of</strong> the Contracting Partiesto the initial agreement has notified its objection prior to the expiration <strong>of</strong> that period.31 Convention for the Protection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong> Personal Data, <strong>of</strong> 28January 1981 (E.T.S., n°108). The Amendements to the Convention for the Protection <strong>of</strong> Individuals with regard toAutomatic Processing <strong>of</strong> Personal Data authorizing the accession <strong>of</strong> the European Communities have been adoptedby the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe at its 675 th meeting, on 15 June 1999. All the Statesparties should notify their acceptation <strong>of</strong> these amendments before these can enter into force. Only once they haveentered into force, will it be possible for the European Communities to accede to the Convention.32 UN Gen. Ass. Res. 34/180 <strong>of</strong> 18 December 1979. All the 25 Member States <strong>of</strong> the EU have ratified thisinstrument.33 UN Gen. Ass. Res. 2106 A(XX) <strong>of</strong> 21 December 1965. All the 25 Member States <strong>of</strong> the EU have ratified thisinstrument.34COM(2003)16 final.CFR-CDF.rep.UE.2003.en

20EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSMore fundamentally perhaps, it may be worth questioning the adequacy <strong>of</strong> the classical caselaw<strong>of</strong> the European Court <strong>of</strong> Justice concerning the extent <strong>of</strong> the external powers <strong>of</strong> theCommunity, where the question <strong>of</strong> accession to an international instrument protecting humanrights is posed. By acceding to such instruments, the States parties undertake to respectcertain minimal standards for the benefit <strong>of</strong> the persons under their jurisdiction, which impliesin the first place that they will not adopt any measures which derogate from these standards.Ins<strong>of</strong>ar as the undertaking is purely negative (formulated as an obligation to abstain from), itis irrelevant whether or not the Party has the competence to take measures which implementthe given standard. It is only where the undertaking is also to adopt certain measures – t<strong>of</strong>ulfil positive obligations (to act) – that the question <strong>of</strong> competences may play a role. Theaccession <strong>of</strong> the Union to international instruments adopted in the field <strong>of</strong> human rights mustnot necessarily have an impact on the extent <strong>of</strong> its competences, quite to the contrary, such anaccession must in principle be considered n<strong>eu</strong>tral from the point <strong>of</strong> view <strong>of</strong> the division <strong>of</strong>competences between the Union and the Member States 35 . If necessary, a specific clause couldrecall this n<strong>eu</strong>trality 36 . This however results from the very principle <strong>of</strong> attributed competences,according to which the Union could not exercise competences which are not attributed to theUnion by the Member States, even for the sake <strong>of</strong> better complying with obligations theUnion has contracted on the international plane.If the accession to the international instruments for the protection <strong>of</strong> human rights cited abovemay only be envisaged at a later stage, for reasons ideological rather than because <strong>of</strong> legalobstacles, at least it is important immediately to reflect upon the means to articulate better thefundamental rights recognized within the Union and the international law <strong>of</strong> human rights.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights is favourable to a systematicindexation <strong>of</strong> the provisions <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights to the international law. Tothe extent that the rights <strong>of</strong> the Charter correspond to rights which are recognized underinternational law, and particularly in human rights instruments to which the Member Statesare parties, the Network will interpret the rights <strong>of</strong> the Charter to ensure that their meaningand scope are those which are recognized to them by these treaties.Other mechanisms however could be envisaged which ensure this articulation <strong>of</strong> the EuropeanUnion to the international law <strong>of</strong> human rights. For instance, in the fields which belong to thecompetences shared between the Union and the Member States, the Union could considercontributing to the preparation <strong>of</strong> the reports which the States must submit periodically to thecommittees created by the six main treaties <strong>of</strong> the United Nations in the field <strong>of</strong> human rights.The preparation <strong>of</strong> a report concerning specifically the contribution <strong>of</strong> the European Union tothe implementation <strong>of</strong> the provisions contained in those treaties would present majoradvantages. Presented in the form <strong>of</strong> an annex to the reports <strong>of</strong> the 25 Member States, such acontribution would make visible to the community <strong>of</strong> States the role <strong>of</strong> the Union in theprotection <strong>of</strong> fundamental rights by its Member States. Such a contribution by the Unionwould also greatly facilitate the task <strong>of</strong> the national administrations who are entrusted with thepreparation <strong>of</strong> these periodical reports. As such a contribution by the EU should be regularlyupdated, it would encourage the Union to take better account <strong>of</strong> the impact its action mayhave on the enjoyment <strong>of</strong> fundamental rights, which may in turn lead to formulate a diagnosison this impact and to reorient the European public policies accordingly. Finally, the35 Mutatis mutandis, Article 28 <strong>of</strong> the International Covenant on Economic, Social and Cultural Rights forinstance, adopted by the Gen. Ass. <strong>of</strong> the United Nations on 16 December 1966 (Res. 2200 A (XXI)), states that“The provisions <strong>of</strong> the present Covenant shall extend to all parts <strong>of</strong> federal States without any limitations orexceptions”. This provision however cannot be construed as having the effect to invest the federative entitieswithin each State with competences which theses entities are denied under the constitutional organisation <strong>of</strong> theState.36 Such a clause could seek inspiration from Article 7(2), 2 nd sentence, <strong>of</strong> the Draft Treaty establishing aConstitution for Europe, which says that the accession <strong>of</strong> the Union to the European Convention on Human Rights« shall not affect the Union's competences as defined in the Constitution ». It could also be formulated along thelines <strong>of</strong> Article 51 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200321contribution <strong>of</strong> the Union to the reports States submit periodically in the existing system <strong>of</strong>human rights treaties would encourage the Union to better take into account in theformulation <strong>of</strong> European legislation the nature and the scope <strong>of</strong> the international obligationsimposed on the States in the field <strong>of</strong> human rights, which may prevent the risk that States willface contradictory international obligations.II.2. Contributing to the respect by the Member States to their international obligations in thefield <strong>of</strong> human rightsPaying more attention to the international human rights instruments binding upon the MemberStates may be an incentive for the Union to exercise its attributed competences so as to helpthe Member States to better comply with the obligations which these instruments impos<strong>eu</strong>pon them. Ins<strong>of</strong>ar as it is obliged to respect the fundamental rights inscribed in the Charter,the Union will in general abstain from making it impossible for the Member States to respectthose obligations; under Article 307 EC, this is even a legal obligation for the institutionsacting in the framework <strong>of</strong> the EC Treaty, at least as long as there remains an incompatibilitybetween the international undertakings accepted by the Member State before its accession tothe Union and the obligations imposed by the Union. However, apart from the fact that thislatter obligation is not unconditional – as it was noted already in the Report by the EUNetwork <strong>of</strong> Independent Experts on the situation <strong>of</strong> fundamental rights in 2002 37 –, it could b<strong>eu</strong>seful to redefine it as a positive obligation imposed on the Union: an obligation to adopt themeasures which may facilitate the respect by the Member States <strong>of</strong> their internationalobligations in the field <strong>of</strong> human rights, where the Union may, by exercising its competences,contribute to fulfilling this end.This is not to say, <strong>of</strong> course, that the EU would be under such an obligation, in theinternational legal order 38 ; it is doubtful even that the Charter imposes such an obligation onthe institutions <strong>of</strong> the Union, despite the fact that the Charter could in principle be the source<strong>of</strong> positive obligations 39 . Rather the purpose here is to indicate one avenue through which,first, the risk <strong>of</strong> tension between the membership <strong>of</strong> a State to the Union and its capacity t<strong>of</strong>ully respect its international undertakings in the field <strong>of</strong> human rights could be attenuated;and through which, second, the Union could contribute to a better respect for internationalhuman rights through a better integration <strong>of</strong> their requirements in the definition <strong>of</strong> its policiesand, generally, in the exercise <strong>of</strong> its powers. By their membership <strong>of</strong> the Union, the MemberStates share a common area in which the free movement <strong>of</strong> persons is guaranteed, themobility <strong>of</strong> factors <strong>of</strong> production ensured, and within which cooperation takes place betweenStates in the civil and criminal judicial field and in the field <strong>of</strong> police. This results in a stronginterdependency between the States, which may affect their capacity to fully comply with theinternational obligations they are imposed in the field <strong>of</strong> human rights. Where the Union hasthe required powers to act, it should exercise these powers to avoid this interdependency frombecoming an obstacle to the possibility for the States to further realize the human rightsrecognized in international law. Three examples may be given. They are borrowed from theactivity <strong>of</strong> the year under scrutiny in this report.37 See the Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002, p.22.38 Comp. ECJ 14 October 1980, Attorney General v. Juan C. Burgoa, 812/79, ECR 2787 (Recital 9) ; or ECJ, 18October 1982, Dorca Marina, Joined Cases 50 to 58/82, ECR 3949 (Recitals 6 and 7).39 The Charter <strong>of</strong> Fundamental Rights imposes on the institutions, bodies and agencies <strong>of</strong> the Union an obligationto promote the application <strong>of</strong> the Charter, in the exercise <strong>of</strong> their attributed powers (Article 51(1) <strong>of</strong> the Charter).This implies that the Charter can constitute for the institutions <strong>of</strong> the Union, like for the Member States when theyact in the scope <strong>of</strong> application <strong>of</strong> EU law, the source <strong>of</strong> positive obligations : they may be under an obligation toact to realize the rights and principles enunciated in the Charter, where, in the absence <strong>of</strong> any initiative from theirpart, these rights or these principles would be threatened.CFR-CDF.rep.UE.2003.en

22EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSEncouraging the fight against racial and xenophobic hatred and violenceThe first example is that <strong>of</strong> the debate on the adoption <strong>of</strong> a penal instrument <strong>of</strong> the Unionaimed at approximating the State laws combating racism and xenophobia. Article 29 <strong>of</strong> theTreaty on European Union provides, as a means to achieve the Union objective <strong>of</strong> <strong>of</strong>fering allcitizens a high level <strong>of</strong> protection in an area <strong>of</strong> freedom, security and justice, for theelaboration <strong>of</strong> common action between the Member States in the field <strong>of</strong> police and judicialcooperation in criminal matters and the prevention <strong>of</strong> racism and xenophobia. This objectiveshould be achieved through the approximation, where appropriate, <strong>of</strong> the rules <strong>of</strong> criminal law<strong>of</strong> the Member States, in accordance with Article 31, e), <strong>of</strong> the Treaty on European Union.This clause provides that common action on judicial cooperation in criminal matters includesprogressively adopting measures establishing minimum rules relating to the constituentelements <strong>of</strong> criminal acts and to penalties in the field <strong>of</strong> organized crime, among others. AtUnion level, the Council on 15 July 1996 adopted, on the basis <strong>of</strong> Article K3 <strong>of</strong> the Treaty onEuropean Union, a joint action concerning action to combat racism and xenophobia 40 . Thisinitiative was justified by the observation that the existing differences between certaincriminal legislations in terms <strong>of</strong> the penalties on certain kinds <strong>of</strong> racist and xenophobicbehaviour could form an obstacle to international judicial cooperation, in such a way that theperpetrators <strong>of</strong> such <strong>of</strong>fences were liable to move from one Member State to another in orderto avoid criminal prosecution or the execution <strong>of</strong> sentences and so to continue their activitiesunpunished. The Joint Action <strong>of</strong> 15 July 1996 called upon the Member States to “ensureeffective judicial cooperation in respect <strong>of</strong> <strong>of</strong>fences based on the following types <strong>of</strong>behaviour, and, if necessary for the purposes <strong>of</strong> that cooperation, either to take steps to seethat such behaviour is punishable as a criminal <strong>of</strong>fence or, failing that, and pending theadoption <strong>of</strong> any necessary provisions, to derogate from the principle <strong>of</strong> double criminality”for certain behaviour enumerated in the Joint Action, such as incitement to racial, religious ornational hatred, public condoning <strong>of</strong> crimes against humanity and human rights violations, orthe “participation in the activities <strong>of</strong> groups, organizations or associations, which involvediscrimination, violence, or racial, ethnic or religious hatred”. Point B <strong>of</strong> Title I <strong>of</strong> the JointAction provides that, in the case <strong>of</strong> investigations into, and/or proceedings against, <strong>of</strong>fencesbased on the types <strong>of</strong> behaviour listed, the Member States take appropriate measures in orderto improve judicial cooperation by seizure and confiscation <strong>of</strong> tracts, pictures or othermaterial containing expressions <strong>of</strong> racism and xenophobia intended for public dissemination,acknowledgement that the types <strong>of</strong> behaviour listed should not be regarded as political<strong>of</strong>fences justifying refusal to comply with requests for mutual legal assistance, providinginformation to another Member State to enable that Member State to initiate, in accordancewith its law, legal proceedings or proceedings for confiscation in cases where it appears thattracts, pictures or other material containing expression <strong>of</strong> racism and xenophobia are beingstored in a Member State for the purposes <strong>of</strong> distribution or dissemination in another MemberState, and the establishment <strong>of</strong> contact points in the Member States which would beresponsible for collecting and exchanging any information which might be useful forinvestigations and proceedings against <strong>of</strong>fences based on the types <strong>of</strong> behaviour listed. PointC <strong>of</strong> Title I <strong>of</strong> the Joint Action specifies that nothing in that Joint Action may be interpreted asaffecting any obligations which Member States may have under, among others, the UnitedNations Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination <strong>of</strong> 21December 1965.On 28 November 2001, following a European Parliament Resolution adopted on 21September 2000 41 , the Commission adopted a proposal for a Framework Decision oncombating racism and xenophobia, based on Articles 29, 31 and 34 <strong>of</strong> the Treaty on EuropeanUnion 42 . The proposal is aimed at approximating the laws and regulations <strong>of</strong> the Member40 OJ L 185 <strong>of</strong> 24/7/1996, p. 5.41 OJ C 146 <strong>of</strong> 17/5/2001, p. 110.42 COM(2001) 664 final.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200323States regarding racist and xenophobic <strong>of</strong>fences by defining minimum criteria common to allMember States to ensure that racism and xenophobia are punishable in all Member States byeffective, proportionate and dissuasive criminal penalties, which can give rise to extradition orsurrender 43 , and to improve and encourage judicial cooperation by removing potentialobstacles. The Explanatory Memorandum <strong>of</strong> the proposal explicitly refers to the UnitedNations Convention for the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination, and inparticular to Article 4 (a) <strong>of</strong> this Convention, which stipulates that the States Parties “shalldeclare an <strong>of</strong>fence punishable by law all dissemination <strong>of</strong> ideas based on racial superiority orhatred, incitement to racial discrimination, as well as actions <strong>of</strong> violence or incitement to suchacts against any race or group <strong>of</strong> persons <strong>of</strong> another colour or ethnic origin, and also theprovision <strong>of</strong> any assistance to racist activities, including the financing there<strong>of</strong>”, as well as toparagraph (b) <strong>of</strong> the same article, which states that States Parties “shall declare illegal andprohibit organisations, and also organised and all other propaganda activities, which promoteand incite racial discrimination, and shall recognise participation in such organisations oractivities as an <strong>of</strong>fence punishable by law” 44 .In early 2003, the Council was unable to agree on the text <strong>of</strong> a Framework Decision oncombating racism and xenophobia. One <strong>of</strong> the obstacles encountered, besides a Commissionreservation about the use <strong>of</strong> Article 34 § 2, b), <strong>of</strong> the Treaty on European Union, in attemptingto approximate the national laws on the criminalization <strong>of</strong> pubic incitement to discrimination -an initiative which, according to the Commission, required the choice rather <strong>of</strong> Article 13 ECas legal basis -, was particularly the difficulty <strong>of</strong> imposing on certain Member States, whoselaw or national practices <strong>of</strong>fered greater guarantees for freedom <strong>of</strong> expression, thecriminalization <strong>of</strong> certain types <strong>of</strong> behaviour that could, in their view, derive from the exercise<strong>of</strong> this freedom 45 . It is regrettable that no agreement could emerge on this question. However,it is also important to draw lessons from this failure.Given the diversity <strong>of</strong> concepts <strong>of</strong> the relationship between the extent <strong>of</strong> the freedom <strong>of</strong>expression and the need to combat incitement to racial and xenophobic hatred and violence,joint action is difficult or has been made impossible. The result, taking into account thefacilities that may be <strong>of</strong>fered to persons having committed such <strong>of</strong>fences by the divergencesbetween the different laws <strong>of</strong> the Member States, is that the Member States are preventedfrom fully taking up their international obligations. Article 4 <strong>of</strong> the Convention for theElimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination has already been mentioned. Article 20 <strong>of</strong>the International Covenant on Civil and Political Rights provides, “Any advocacy <strong>of</strong> national,racial or religious hatred that constitutes incitement to discrimination, hostility or violenceshall be prohibited by law” 46 . In a judgment where it asserted that the States Parties to theEuropean Convention on Human Rights may be bound by a positive obligation to take action43 Racism and xenophobia are among the <strong>of</strong>fences that may entail surrender on the basis <strong>of</strong> a European arrestwarrant, if they are penalized in the issuing Member State by a sentence or security measure involving detentionfor at least three years as defined by the issuing Member State: see Article 2 § 2 <strong>of</strong> the Framework Decision <strong>of</strong> theCouncil <strong>of</strong> 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJL 190 <strong>of</strong> 18/7/2002, p. 1. The coming into effect <strong>of</strong> the European arrest warrant partly compensates for the failureto arrive at an agreement on the Framework Decision proposed by the Commission.44 The Commission notes in this respect, “The Convention has been ratified by all EU Member States. SomeMember States have entered reservations on Article 4, which refer to the conciliation <strong>of</strong> obligations imposed bythis Article with the right to freedom <strong>of</strong> expression and association”.45 Thus the proposal for a Framework Decision submitted to the Council <strong>of</strong> the European Union <strong>of</strong> 27 and 28February 2003 (DROIPEN 14) contained an Article 7, “Constitutional Rules and Fundamental Principles”, wordedas follows: “La présente décision-cadre n'a pas pour effet d'obliger les États membres à prendre des mesurescontraires à l<strong>eu</strong>rs règles constitutionnelles et aux principes fondamentaux relatifs à (….) la liberté d'association, àla liberté de la presse et à la liberté d'expression dans d'autres médias ou à des règles régissant les droits etresponsabilités de la presse ou d'autres médias, ainsi que les garanties de procédure y afférentes, lorsque ces règlesportent sur la détermination ou la limitation de la responsabilité”.46 In its General Comment n°11, adopted at its nineteenth session (1983), the Commission for Human Rightsrecalled, “These required prohibitions are fully compatible with the right to freedom <strong>of</strong> expression as contained inarticle 19, the exercise <strong>of</strong> which carries with it special duties and responsibilities”.CFR-CDF.rep.UE.2003.en

24EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSagainst political parties that threaten, if they come to power thanks to forthcoming elections,to challenge the rights and freedoms <strong>of</strong> the Convention, the European Court <strong>of</strong> Human Rightsemphasized that those States may be obliged to take measures to protect individuals undertheir jurisdiction from hostile behaviour: “A Contracting State may be justified under itspositive obligations in imposing on political parties, which are bodies whose raison d'être isto accede to power and direct the work <strong>of</strong> a considerable portion <strong>of</strong> the State apparatus, theduty to respect and safeguard the rights and freedoms guaranteed by the Convention and theobligation not to put forward a political programme in contradiction with the fundamentalprinciples <strong>of</strong> democracy” 47 .The difficulty <strong>of</strong> reconciling the necessity <strong>of</strong> taking measures against incitement to racial andxenophobic hatred or violence with the requirements <strong>of</strong> the freedom <strong>of</strong> expression andassociation should certainly not be underestimated. However, the identification <strong>of</strong> the latterrequirements should not depend on the assessment that each individual Member State makes<strong>of</strong> them. At both the international and the European level, we have common points <strong>of</strong>reference which might have served better as starting points and which might have constituteda real lever in the process <strong>of</strong> finding an agreement. In other words, a common reference to therequirements <strong>of</strong> international human rights law, which has adopted a position on theappropriate balance between the conflicting values - by considering that freedom <strong>of</strong>expression cannot extend its scope <strong>of</strong> protection to incitement to racial and xenophobic hatredor violence -, might have helped to settle the discussion between the Member States, providedthat, from the outset, international human rights law has been accepted as common point <strong>of</strong>reference.Helping to combat impunity for crimes under international lawA second example is a possible initiative <strong>of</strong> the European Union aimed at helping to combatimpunity for crimes under international law - genocide, crimes against humanity, war crimes.The institutions <strong>of</strong> the Union have already expressed their readiness to combat impunity forthe perpetrators <strong>of</strong> such crimes, and have voiced their support for the institution <strong>of</strong> theInternational Criminal Court 48 .When it adopted its Decision <strong>of</strong> 13 June 2002 setting up a European <strong>network</strong> <strong>of</strong> contact pointsin respect <strong>of</strong> persons responsible for genocide, crimes against humanity and war crimes(2002/494/JHA) 49 , the Council <strong>of</strong> the European Union based itself on the consideration thatall Member States <strong>of</strong> the European Union had either signed or ratified the Rome Statute,which states that the International Criminal Court established under it is to be complementaryto national criminal jurisdictions, to conclude that as « Member States are being confrontedwith persons who were involved in such crimes and are seeking refuge within the EuropeanUnion's frontiers », « the successful outcome <strong>of</strong> effective investigation and prosecution <strong>of</strong>such crimes at national level depends to a high degree on close cooperation between thevarious authorities involved in combating them ». The Council therefore provided that eachMember State shall « designate a contact point for the exchange <strong>of</strong> information concerningthe investigation <strong>of</strong> genocide, crimes against humanity and war crimes such as those definedin Articles 6, 7 and 8 <strong>of</strong> the Rome Statute <strong>of</strong> the International Criminal Court <strong>of</strong> 17 July47 Eur. Ct. H.R. (GC), Refah Partisi (The Welfare Party) and others v. Turkey, judgment <strong>of</strong> 13 February 2003, §103.48 See , e.g., the Council Common Position 2001/443/CFSP <strong>of</strong> 11 June 2001, on the International Criminal Court(OJ L 155, 12.6.2001, p. 19), amended by the Council Common Position <strong>of</strong> 20 June 2002 amending CommonPosition 2001/443/CFSP on the International Criminal Court (OJ L 64, 22.6.2002, p. 1), now replaced by theCouncil Common Position 2003/444/CFSP <strong>of</strong> 16 June 2003 on the International Criminal Court (OJ n° L 150 <strong>of</strong>18.6.2003, p. 67) ; and the answer given by Mr Vitorino on behalf <strong>of</strong> the Commission (3 September 2002) to thewritten question E-2063/02 by Pere Esteve (ELDR) to the Commission, on harmonised jurisdiction on genocide,crimes against humanity and war crimes (OJ n° C 161 E , 10.7.2003, p. 12).49 OJ n° L 167 <strong>of</strong> 26.6.2002, p. 1. The Decision is based on Article 30 and Article 34(2)c), EU.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003251998 », to ensure exchange <strong>of</strong> information and cooperation between the national authoritiesentrusted with the inquiry and prosecution over such crimes. In its later Decision2003/335/JHA <strong>of</strong> 8 May 2003 on the investigation and prosecution <strong>of</strong> genocide, crimesagainst humanity and war crimes 50 , the Council sought to further increase cooperationbetween national authorities « in order to maximise the ability <strong>of</strong> law enforcement authoritiesin different Member States to cooperate effectively in the field <strong>of</strong> investigation andprosecution <strong>of</strong> persons who have committed or participated in the commission <strong>of</strong> genocide,crimes against humanity or war crimes ». Therefore, the Decision prescribes that the MemberStates shall take the necessary measures « in order for the law enforcement authorities to beinformed when facts are established which give rise to a suspicion that an applicant for aresidence permit has committed [genocide, crimes against humanity or war crimes] whichmay lead to prosecution in a Member State or in international criminal courts », and toregularly exchange information in that respect. Council Decision 2003/335/JHA <strong>of</strong> 8 May2003 also provides that national authorities shall assist each other in the prosecution <strong>of</strong> thesecrimes.It would be in keeping with the intention already shown by these instruments that EuropeanUnion law helps, in a yet more complete way, to combat impunity for perpetrators <strong>of</strong>international crimes who seek refuge on the territory <strong>of</strong> the Member States. The Statute <strong>of</strong> theInternational Criminal Court, adopted in Rome on 17 July 1998, recalls “that it is the duty <strong>of</strong>every State to exercise its criminal jurisdiction over those responsible for internationalcrimes”. One <strong>of</strong> the considerations on which Council Common Position 2003/444/CFSP <strong>of</strong> 16June 2003 on the International Criminal Court is founded is, “The serious crimes within thejurisdiction <strong>of</strong> the Court are <strong>of</strong> concern to all Member States, which are determined tocooperate for the prevention <strong>of</strong> those crimes and for putting an end to the impunity <strong>of</strong> theperpetrators there<strong>of</strong>”. The adoption <strong>of</strong> a Framework Decision which provides that theMember States give their courts the power to prosecute and sentence persons held responsiblefor international crimes who are found on their territory, irrespective <strong>of</strong> their links in terms,for example, <strong>of</strong> nationality or place <strong>of</strong> residence with the victims or <strong>of</strong> the place where thecrime has been committed, would be a step in that direction 51 . The very possibility for theUnion Member States to adopt an extraterritorial legislation allowing them to prosecuteinternational crimes cannot be seriously contested 52 . In a Recommendation adopted on 23June 2003 with regard to serious violations <strong>of</strong> human rights committed in areas where theEuropean Convention on Human Rights cannot be implemented, the Parliamentary Assembly<strong>of</strong> the Council <strong>of</strong> Europe recalled that, where it is first and foremost the responsibility <strong>of</strong> thoseStates on whose territory violations occur to instigate the necessary investigations and tobring proceedings against the presumed perpetrators, yet those States fail to do this, “third50 OJ n° L 118 , 14.5.2003, p. 12.51 We may refer to the joint study by Redress and the International Federation <strong>of</strong> Human Rights Leagues, “LegalRemedies for Victims <strong>of</strong> International Crimes. Fostering an EU Approach to Extraterritorial Jurisdiction”,prepared with the support <strong>of</strong> the Grotius II programme <strong>of</strong> the European Commission and the Community Fund.52 In a separate common opinion on the judgment delivered by the International Court <strong>of</strong> Justice on 14 February2002 in the Case relating to the arrest warrant <strong>of</strong> 11 April 2000, judges Higgins, Kooijmans and Buergenthalinferred from the Geneva Conventions <strong>of</strong> 12 August 1949 and the Convention against Torture and other Cruel,Inhuman or Degrading Treatment or Punishment <strong>of</strong> 10 December 1984 (see below), that “universal criminaljurisdiction for certain international crimes is clearly not regarded as unlawful. The duty to prosecute under thosetreaties which contain the aut dedere aut prosequi provisions opens the door to a jurisdiction based on the heinousnature <strong>of</strong> the crime rather than on links <strong>of</strong> territoriality or nationality (whether as perpetrator or victim)” (here par.49). International legal doctrine is in keeping with this: Princeton Principles on Universal Jurisdiction, Principle 1,§§ 1-2 (2001); as well as the Brussels Principles Against Impunity and for International Justice, adopted by theBrussels Group for International Justice in March 2002 (Principle 13 stipulates that any State may, underinternational law, “institute legal proceedings and to try the presumed author <strong>of</strong> an <strong>of</strong>fence, irrespective <strong>of</strong> theplace where the said <strong>of</strong>fence has been committed, the nationality or the place <strong>of</strong> residence <strong>of</strong> its presumed author<strong>of</strong> <strong>of</strong> the victim”, and that this jurisdiction is exercisable “regardless <strong>of</strong> whether or not the presumed author ispresent on the territory <strong>of</strong> the forum State”; whereas Principe 14 §1 provides, “By virtue <strong>of</strong> international law, anyState has the obligation to exercise universal jurisdiction in relation to the presumed author <strong>of</strong> a serious crime fromthe moment the said author is present on the territory <strong>of</strong> that State”).CFR-CDF.rep.UE.2003.en

26EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSparty States have a responsibility to act. In order to be able to discharge these responsibilities,they should have the option <strong>of</strong> exercising universal jurisdiction for all international crimes,including terrorist crimes”; consequently, the Assembly “recommends (…) that the MemberStates [<strong>of</strong> the Council <strong>of</strong> Europe] introduce legislation on universal jurisdiction, which wouldenable them to take proceedings against the perpetrators <strong>of</strong> international crimes” 53 . Theamendment made in July 2002 to the Statute <strong>of</strong> the International Criminal Tribunal forRwanda confirms the viewpoint that States may, at least for certain categories <strong>of</strong> crimes,assume universal jurisdiction 54 . An obligation to enable the prosecution <strong>of</strong> the presumedperpetrators <strong>of</strong> international crimes who are found on the territory <strong>of</strong> a State is also assertedby several instruments <strong>of</strong> international humanitarian law or aimed at protecting human rights.Obligation <strong>of</strong> universal jurisdiction under international lawOn the subject <strong>of</strong> war crimes committed during an international armed conflict, the Article(49 (I), 50 (II), 129 (III) and 146 (IV) respectively) common to the four Geneva Conventions<strong>of</strong> 12 August 1949, whose scope has been extended by Article 85 § 1 <strong>of</strong> the First AdditionalProtocol <strong>of</strong> 1977 to the <strong>of</strong>fences enumerated therein, stipulates:“Each High Contracting Part shall be under the obligation to search for persons alleged tohave committed, or to have ordered to be committed, such grave breaches, and shall bringsuch persons, regardless <strong>of</strong> their nationality, before its own courts. It may also, if it prefers,and in accordance with the provisions <strong>of</strong> its own legislation, hand such persons over for trialto another High Contracting Party concerned, provided such High Contracting Party has madeout a prima facie case”.On the subject <strong>of</strong> torture, Article 5 <strong>of</strong> the Convention Against Torture and other Cruel,Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly <strong>of</strong> theUnited Nations on 10 December 1984, stipulates that each State Party “shall take suchmeasures as may be necessary to establish its jurisdiction over the <strong>of</strong>fences [referred to inarticle 4 <strong>of</strong> the Convention] in the following cases: a) When the <strong>of</strong>fences are committed inany territory under its jurisdiction or on board a ship or aircraft registered in that State; b)When the alleged <strong>of</strong>fender is a national <strong>of</strong> that State; c) When the victim is a national <strong>of</strong> thatState if that State considers it appropriate” (§ 1). § 2 adds 55 :“Each State Party shall likewise take such measures as may be necessary to establish itsjurisdiction over such <strong>of</strong>fences in cases where the alleged <strong>of</strong>fender is present in any territoryunder its jurisdiction and it does not extradite him pursuant to article 8 to any <strong>of</strong> the Statesmentioned in paragraph I <strong>of</strong> this article”.As regards crimes <strong>of</strong> genocide and crimes against humanity, international law does notimpose any obligation on the States to establish their jurisdiction to prosecute individualssuspected <strong>of</strong> having committed such crimes if they are on their territory. Article VI <strong>of</strong> theConvention <strong>of</strong> 9 December 1948 on the prevention and punishment <strong>of</strong> the crime <strong>of</strong> genocideimposes an obligation <strong>of</strong> prosecution solely on the State on whose territory the act wascommitted; the other States cannot refuse to extradite a perpetrator <strong>of</strong> crimes <strong>of</strong> genocide on53 Parliamentary Assembly <strong>of</strong> the Council <strong>of</strong> Europe, Recommendation 1606 (2003), “Areas where the EuropeanConvention on Human Rights cannot be implemented”.54 The new Article 11b <strong>of</strong> the Statute <strong>of</strong> the ICTR expressly cites the concept <strong>of</strong> universal jurisdiction by recallingthe referral to the domestic courts <strong>of</strong> certain cases that had been submitted to the Tribunal. Seehttp://www.ictr.org/FRENCH/index.htm55 See also Article 7 § 1 <strong>of</strong> the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment orPunishment, which provides that the case <strong>of</strong> a person alleged to have committed acts <strong>of</strong> torture and found in theterritory shall, if he is not extradited, be submitted to the competent authorities <strong>of</strong> the State in whose territory hehas been found for the purpose <strong>of</strong> prosecution.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200327the pretext that such crimes constitute political crimes (Article VII), which ensures th<strong>eu</strong>niversal punishment 56 <strong>of</strong> the crime <strong>of</strong> genocide through the collaboration <strong>of</strong> all States withthe State where the crime has been committed, so as to allow the latter to carry outprosecution proceedings. As regards crimes against humanity, there is no regulation <strong>of</strong>international conventional law that obliges a State to exercise its criminal jurisdiction vis-àvispersons accused <strong>of</strong> crimes against humanity who are on its territory, although in theparticular case where the crime against humanity is committed in the form <strong>of</strong> torture, itfollows from Article 5 <strong>of</strong> the above-mentioned Convention <strong>of</strong> 10 December 1984 againsttorture that if a State does not extradite a person accused <strong>of</strong> torture to a State that hasjurisdiction to prosecute this person and that requests his extradition, it has the obligation toprosecute this person. It should be added, however, that an important doctrine considers thatcrimes against humanity constitute crimes under international law which, ins<strong>of</strong>ar as theyinfringe the imperative regulations <strong>of</strong> international law (jus cogens), impose an obligation onthe States to assist in the punishment there<strong>of</strong>, which rules out that States can allow individualssuspected <strong>of</strong> having committed such crimes <strong>of</strong> enjoying impunity on their territory (seeBassiouni, “Crimes against Humanity: The need for a specialized Convention”, ColumbiaJournal <strong>of</strong> Transnational Law, 1994, pp. 480-481; K.C. Randall, “Universal JurisdictionUnder International Law”, 66 Texas L. Rev.785, 829-830 (1988)). Such an obligation <strong>of</strong>establishing universal jurisdiction in order to avoid situations <strong>of</strong> impunity also derives fromthe Resolution <strong>of</strong> the United Nations General Assembly, “Principles <strong>of</strong> International Cooperationin the Detention, Arrest, Extradition and Punishment <strong>of</strong> Persons Guilty <strong>of</strong> WarCrimes and Crimes against Humanity” (G.A. Res. 3074 (XXVIII), U.N. GAOR, 28th Sess.,Supp. No. 30, at 78, U.N. Doc. A/9030 (1973)).In the absence <strong>of</strong> an initiative from the European Union seeking to harmonize the criminallegislations <strong>of</strong> the Member States to ensure extra-territorial incrimination <strong>of</strong> internationalcrimes, presumed authors <strong>of</strong> such crimes will continue to be able to seek refuge in theterritory <strong>of</strong> a State whose authorities will not have the required competence to prosecute them.Such a situation is particularly intolerable where the presumed authors <strong>of</strong> such crimes –although they may not be recognized as refugees 57 – may be neither extradited, in the absence<strong>of</strong> a request from a foreign authority, nor sent back to their State <strong>of</strong> origin, where they run areal risk <strong>of</strong> serious ill-treatment in that State 58 . The adoption <strong>of</strong> the above-mentioned Decision<strong>of</strong> 13 June 2002 setting up a European <strong>network</strong> <strong>of</strong> contact points in respect <strong>of</strong> personsresponsible for genocide, crimes against humanity and war crimes shows that the concept <strong>of</strong>“organized crime”, which may justify the adoption <strong>of</strong> measures establishing between theMember States minimum rules relating to the constituent elements <strong>of</strong> criminal acts and toapplicable penalties (Article 31, e), TEU), is extended to crimes under international law 59 .Imposing respect for human rights on businessesOn 13 August 2003, the United Nations Sub-Commission on the Promotion and Protection <strong>of</strong>Human Rights adopted with the unanimous vote <strong>of</strong> the <strong>independent</strong> <strong>experts</strong> the “Norms on theResponsibilities <strong>of</strong> Transnational Corporations and Other Business Enterprises with Regard to56 The obligations under the Convention <strong>of</strong> 9 December 1948 are in fact incumbent erga omnes, including onStates that are not parties to this Convention: ICJ, judgment <strong>of</strong> 11 July 1996, Case concerning application <strong>of</strong> theConvention on the Prevention and Punishment <strong>of</strong> the Crime <strong>of</strong> Genocide (Bosnia-Herzegovina v. Yugoslavia),Preliminary Objections, Rec., 1996, pp. 615-616, par. 31.57 See Article 1(2), F, <strong>of</strong> the Geneva Convention <strong>of</strong> 28 July 1951 on the status <strong>of</strong> refugees.58 This point has been eloquently made by the representative <strong>of</strong> Amnesty International at the hearing organised bythe EU Network <strong>of</strong> Independent Experts on Fundamental Rights on 16 October 2003 in the European Parliament.59 In the Draft Treaty establishing a Constitution for Europe, it is provided that the Council <strong>of</strong> Ministers mayunanimously identify the areas <strong>of</strong> “particularly serious crime with cross-border dimensions resulting from thenature or impact <strong>of</strong> such <strong>of</strong>fences or from a special need to combat them on a common basis”, with a view toenabling the adoption <strong>of</strong> a European framework law establishing minimum rules concerning the definition <strong>of</strong>criminal <strong>of</strong>fences and sanctions in those areas (Article III-172).CFR-CDF.rep.UE.2003.en

28EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSHuman Rights” 60 . This development <strong>of</strong>fers a third example <strong>of</strong> the role that the EuropeanUnion can play in the implementation <strong>of</strong> international human rights law, there also addding areal added value to the action <strong>of</strong> Member States. The adoption <strong>of</strong> these Norms represents amajor step forward compared to the attempts which, since the adoption <strong>of</strong> the TripartiteDeclaration <strong>of</strong> Principles concerning Multinational Enterprises and Social Policy by theInternational Labour Organization (1977) and the Guidelines for Multinational Enterprises bythe Organization for Economic Cooperation and Development (1976, revised in 2000)essentially sought to combat behaviour <strong>of</strong> international companies leading to violations <strong>of</strong>human rights by using instruments without binding legal effect, relying on the goodwill <strong>of</strong>companies to comply with them. The Global Compact proposed to the business communityby United Nations Secretary General Mr Annan in 1999, and the concept <strong>of</strong> corporate socialresponsibility 61 , are based on the same idea. The Norms on the Responsibilities <strong>of</strong>Transnational Corporations and Other Business Enterprises with Regard to Human Rights, onthe other hand, are intended to recall the obligations which, under international human rightslaw, are directly incumbent on non-State players, including corporations. They have beenadopted on the basis <strong>of</strong> the postulate that “transnational corporations and other businessenterprises, their <strong>of</strong>ficers and persons working for them are also obligated to respect generallyrecognized responsibilities and norms contained in United Nations treaties and otherinternational instruments” (Preamble, fourth recital). The adoption <strong>of</strong> the Norms is notcoupled with the adoption <strong>of</strong> a specific monitoring mechanism - although they suggest thatseveral existing mechanisms may be used to oversee compliance with the obligations thatthey set forth. Nevertheless, the Norms provide that transnational corporations adopt,disseminate and implement internal rules <strong>of</strong> operation in compliance with the Norms, thatthey periodically report on and take other measures fully to implement the Norms, and thatthey incorporate these Norms “in their contracts or other arrangements and dealings withcontractors, subcontractors, suppliers, licensees, distributors, or natural or other legal personsthat enter into any agreement with the transnational corporation or business enterprise in orderto ensure respect for and implementation <strong>of</strong> the Norms” (Principle 15).The universal formulation <strong>of</strong> the Norms on the Responsibilities <strong>of</strong> Transnational Corporationsand Other Business Enterprises with Regard to Human Rights codifies the obligations that arealready incumbent on those enterprises under international law. This clarification <strong>of</strong> existingobligations might serve as a source <strong>of</strong> inspiration for European Union initiatives 62 . In view <strong>of</strong>the existence <strong>of</strong> wide disparities between the legislations currently in force in the MemberStates with regard to corporate responsibility for human rights, both as regards the activitiescarried out on the territory <strong>of</strong> Member States and activities carried out in third countries,directly or through the establishment <strong>of</strong> branches with a distinct legal personality, and the risk<strong>of</strong> distortion <strong>of</strong> competition within the common market created by such a disparity, Article 95EC constitutes the appropriate legal basis for the adoption <strong>of</strong> a Directive transposing theseNorms with regard to corporations domiciled in a Member State <strong>of</strong> the Union. Alternatively,Articles 31, e), and 34 TEU should not be ruled out as a possible legal basis for the adoption<strong>of</strong> a Framework Decision providing that Member States criminalize serious infringements <strong>of</strong>human rights committed by corporations having their registered <strong>of</strong>fice, principal place <strong>of</strong>business or centre <strong>of</strong> operations in a Member State <strong>of</strong> the European Union, irrespective <strong>of</strong>where these infringements have been committed 63 , and without prejudice to the possibility <strong>of</strong>60E/CN.4/Sub.2/2003/12/Rev.2 (2003) and, for the commentary (26 August 2003),(2003)E/CN.4/Sub.2/2003/38/Rev.2 (2003). The text has been submitted for approval at the next session <strong>of</strong> theUnited Nations Human Rights Committee (March-April 2004).61 See Communication from the Commission concerning Corporate Social Responsibility, COM(2002) 347 <strong>of</strong>2/7/2002.62 The European Parliament wishes to receive proposals in this connection: Resolution on EU standards forEuropean Enterprises operating in developing countries: Towards a European Code <strong>of</strong> Conduct (A4-0508/98)(rapp. R. Howitt), 15 January 1999, OJ C 104 <strong>of</strong> 14/4/1999, p. 180, specifically § 11.63 We should not forget that the European Commission could have challenged the broad interpretation <strong>of</strong> Article31 TEU, which sometimes encroaches on the powers granted to the European Community under the EC Treaty.See for example the Amended proposal for a Directive <strong>of</strong> the European Parliament and <strong>of</strong> the Council on theCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200329involving the civil or criminal liability <strong>of</strong> the natural persons who are directly responsible forthe violations 64 . Council Framework Decision 2003/80/JHA <strong>of</strong> 27 January 2003 on theprotection <strong>of</strong> the environment through criminal law 65 could serve as a useful model, not onlyfor the broad interpretation that this Framework Decision gives to Article 31, e) TEU, but als<strong>of</strong>or the way it combines the liability <strong>of</strong> natural persons with that <strong>of</strong> legal persons, and thewide-ranging jurisdiction over serious environmental <strong>of</strong>fences which it calls upon theMember States to establish for their authorities, in such a way as to avoid that natural or legalpersons would escape prosecution by the simple fact that the <strong>of</strong>fence was not committed intheir territory. Furthermore, this instrument refers to the Convention on the protection <strong>of</strong> theenvironment through criminal law, adopted on 4 November 1998 by the Council <strong>of</strong> Europe.Here the European Union expresses its willingness to contribute to the implementation <strong>of</strong>international environmental law. The adoption, during the period under scrutiny in the presentreport, <strong>of</strong> Council Framework Decision 2003/568/JHA <strong>of</strong> 22 July 2003 on combatingcorruption in the private sector 66 provides another relevant comparison, since this instrumentwas adopted on the basis <strong>of</strong> Articles 29 and 31, e), EU, and encourages the Member States totake the necessary measures to establish their jurisdiction where the <strong>of</strong>fence has beencommitted by one <strong>of</strong> their nationals or for the benefit <strong>of</strong> a legal person that has its head <strong>of</strong>ficein their national territory (Article 7 § 1, b) and c)).In its Resolution <strong>of</strong> 6 February 2003 on corporate social responsibility 67 , the Councilencourages « facilitating convergence and transparency <strong>of</strong> CSR practices and tools, whichshould, inter alia, build on the fundamental ILO Conventions and on the OECD Guidelinesfor Multinational Enterprises, as minimum common standards <strong>of</strong> reference ». However, whilereaffirming the voluntary nature <strong>of</strong> CSR, the Resolution also states that « CSR is behaviour bybusinesses over and above legal requirements, which should continue to be properlyenforced ». The adoption <strong>of</strong> the Norms on the Responsibilities <strong>of</strong> Transnational Corporationsand Other Business Enterprises with Regard to Human Rights may signify that time has nowcome to act.** *These examples could be multiplied. They illustrate the advantage there would be in betterindexing the policy <strong>of</strong> the European Union in the field <strong>of</strong> fundamental rights – i.e., theexercise by the Union <strong>of</strong> the powers which the Member States have attributed to it, in thelimits <strong>of</strong> those attributed powers, and, where the powers are shared with the Member States,taking into account the principles <strong>of</strong> subsidiarity and proportionality, in order to promotefundamental rights – on the developments <strong>of</strong> the international law <strong>of</strong> human rights, despite thefact that the international law <strong>of</strong> human rights is directed to the Member States rather than tothe Union as such. It is time to move away from a conception <strong>of</strong> the international obligations<strong>of</strong> the Member States in the field <strong>of</strong> human rights which see these obligations simply asimposing limits to the Union, which it must respect in order to avoid situations whereconflicts would arise between those obligations <strong>of</strong> the States and the requirements <strong>of</strong> Unionlaw. On the contrary, where these international obligations develop, the institutions <strong>of</strong> theUnion must ask themselves which initiatives they could take, to favour their implementationby the Member States, where the Union has the required powers to act and where exercisingthese powers could truly add value to the protection <strong>of</strong> fundamental rights in the Union. ThisProtection <strong>of</strong> the Environment through Criminal Law (presented by the Commission pursuant to Article 250 (2) <strong>of</strong>the EC-Treaty) (COM(2002)544 final, OJ C 020 E, 28.1.2003, p. 284, praa. 3.4).64 See Article I, 5, <strong>of</strong> Recommendation R(88)18 <strong>of</strong> 20 October 1988 <strong>of</strong> the Committee <strong>of</strong> Ministers <strong>of</strong> the Council<strong>of</strong> Europe to Member States concerning liability <strong>of</strong> enterprises having legal personality for <strong>of</strong>fences committed inthe exercise <strong>of</strong> their activities.65 OJ L 029 <strong>of</strong> 5.2.200,3 p. 55 – commented under Article 37 <strong>of</strong> the Charter in this Report.66 OJ L 192 <strong>of</strong> 31.07.2003, p. 54.67 2003/C 39/02, OJ C 39, 19.2.2003, p. 3.CFR-CDF.rep.UE.2003.en

30EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSchange <strong>of</strong> perspective is what the emergence <strong>of</strong> a human rights policy in the EU. Fundamentalrights ought to be respected, <strong>of</strong> course: the Charter <strong>of</strong> Fundamental Rights simply confirmsthis obligation. However fundamental rights also should be promoted, ins<strong>of</strong>ar as theinstitutions <strong>of</strong> the Union remain, by ensuring that they are effectively guaranteed, in the limits<strong>of</strong> the powers which have been attributed to them 68 .II.3. Preventing the risk <strong>of</strong> violation <strong>of</strong> fundamental rights in the implementation <strong>of</strong> UnionLawThe notion <strong>of</strong> positive obligation, which has been used here to describe what may result froma better integration <strong>of</strong> the international law <strong>of</strong> human rights in the activities <strong>of</strong> the Union, is atthe centre <strong>of</strong> this report. The report examines the activities <strong>of</strong> the institutions <strong>of</strong> the Unionunder the obligations imposed by the Charter <strong>of</strong> Fundamental Rights, during the year 2003.The report finds that, with few exceptions, the violations <strong>of</strong> the Charter may result not directlyfrom the activities <strong>of</strong> the Union – as would be the case in particular if the secondary law <strong>of</strong>the EU were to impose to the Member States to commit violations <strong>of</strong> fundamental rights –,but rather could originate in the margin <strong>of</strong> appreciation which is left to the Member States byEU instruments. Directive 2003/86/EC <strong>of</strong> 2 September 2003 on the right to familyr<strong>eu</strong>nification, for instance, <strong>of</strong>fers no guarantee that in adopting measures for itsimplementation, the Member States will not commit direct discrimination based on sexualorientation or indirect discrimination against women; neither does it exclude that, whileconforming to the directive, the Member States will be acting in violation <strong>of</strong> the right torespect for family life. Directive 2003/110/EC <strong>of</strong> 25 November 2003 on assistance in cases <strong>of</strong>transit for the purposes <strong>of</strong> removal by air is not sufficiently explicit about the obligation <strong>of</strong> theState to refuse to assist a removal by air <strong>of</strong> a third country national in situations where he/shewould run a real risk <strong>of</strong> ill-treatments in the State <strong>of</strong> destination. Directive 2003/88/EC <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council <strong>of</strong> 4 November 2003 concerning certain aspects <strong>of</strong>the organisation <strong>of</strong> working time comprises a large number <strong>of</strong> exceptions which the States towhich it is addressed may seek to use, and it cannot be excluded that in using theseexceptions, the States will be acting in violation <strong>of</strong> Article 2(1) and (3) <strong>of</strong> the European SocialCharter. The present report details these concerns and other concerns <strong>of</strong> similar nature. Whatthey have in common, is that they locate the risk <strong>of</strong> violations in the way Member States willimplement Union law: the risk is located, rather than in what Union law prescribes, in thesituations where it has remained silent. How should this be appreciated? Which solutionsshould be envisaged?The limits which derive from the attributed character <strong>of</strong> the powers <strong>of</strong> the Union/Communityshould not be seen as standing in the way <strong>of</strong> the affirmation <strong>of</strong> such positive obligations. TheUnion/Community would be imposed such a positive obligation to adopt measures only to theextent that the constituting treaties provide the necessary powers to this effect 69 . Once theCommunity/Union has intervened in a particular field, the question <strong>of</strong> powers has beenanswered in the affirmative. What matters then, is that in exercising these powers, the68 Although human rights probably could not be considered as an objective <strong>of</strong> the Community at the present stage<strong>of</strong> developement <strong>of</strong> EC law, despite the ambiguity on this point <strong>of</strong> the Opinion 2/94 <strong>of</strong> the European Court <strong>of</strong>Justice (Accession <strong>of</strong> the European Community to the European Convention on Human Rights, ECR p. I-1759,Recital 32, and on this see the Report on the situation <strong>of</strong> fundamental rights in the European Union and its MemberStates in 2002, cited above, p. 15) – the draft Treaty establishing a Constitution for the Union does not list“fundamental rights” among the objectives <strong>of</strong> the Union (Article 3) –, this does not mean that, where theconditions <strong>of</strong> exercise <strong>of</strong> the powers <strong>of</strong> the Community/Union are realized, the objective to promote fundamentalrights would not constitute a legitimate objective.69 This paraphrases deliberately the presentation which was made <strong>of</strong> the same question by the Working Group II“Incorporation <strong>of</strong> the Charter/accession to the ECHR” within the European Convention. See the Final Report <strong>of</strong>the Working Group II, WG II 16, CONV 354/02, 22 October 2002, p. 13, about the consequences which couldresult from the accession <strong>of</strong> the Union to the European Convention on Human Rights : « …the Union would beimposed a ‘positive’ obligation to act to conform itself to the ECHR only to the extent that the treaty comprises thepowers authorizing it to act ».CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200331Community/Union fully respects the Charter <strong>of</strong> Fundamental Rights. It is not sufficient in thisrespect that the rights and principles <strong>of</strong> the Charter are not violated. It should also be ensuredthat, in the field in which the Community/Union has intervened, it does not tolerate suchviolations by the Member States acting as a decentralized European Administration. TheEuropean Court <strong>of</strong> Human Rights considers that a State whose internal legal order does notprohibit violations <strong>of</strong> the rights and freedoms protected by that instrument when they arecommitted by federated entities or private parties, in fact is violating the EuropeanConvention on Human Rights, because such violations have at least their indirect source inthe failure <strong>of</strong> the legislator, a State organ, to take appropriate measures 70 . As an instrument forthe protection <strong>of</strong> human rights, the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> the European Unionshould give rise to obligations which are to be identified according to the same criteria.Moreover, as the Charter should be interpreted in accordance with the principles <strong>of</strong>international law, in particular those relating to the international protection <strong>of</strong> human rights,the extent <strong>of</strong> the positive obligations it may impose should be identified on the basis <strong>of</strong> thoseprinciples and the instruments which codify them 71 .It therefore should be verified whether, when it has intervened in particular field, theEuropean legislator has indeed adopted all the measures which could reasonably prevent therisk <strong>of</strong> a violation <strong>of</strong> fundamental in the field in question. It is true that whenever it intervenesin a field where it does not have an exclusive power, the Community may only act, inconformity with the principles <strong>of</strong> subsidiarity and proportionality, if and to the extent that theobjectives <strong>of</strong> the action envisaged cannot be sufficiently realized by the Member States andcan therefore, because <strong>of</strong> the scope or the effects <strong>of</strong> the action envisaged, be better realized atthe level <strong>of</strong> the Community; and only ins<strong>of</strong>ar as its action does not exceed what is necessaryto fulfil the objectives <strong>of</strong> the EC Treaty (Article 5 EC). Moreover, the principles <strong>of</strong>subsidiarity and proportionality regulate not only the content, but also the form <strong>of</strong> Communityintervention, so that directives should be preferred to regulations, and framework directivespreferred above more detailed directives 72 . But the interpretation <strong>of</strong> these principles must takeinto account the obligations imposed by the Charter <strong>of</strong> Fundamental Rights. It would beincorrect to consider that the Community is violating these principles in ensuring morecompletely, in the instruments it adopts, that the Member States will respect the fundamentalrights <strong>of</strong> the Charter in the course <strong>of</strong> their implementation. In addition, the general obligationwhich is imposed on the Member States to respect fundamental rights when they act in thefield <strong>of</strong> application <strong>of</strong> Union law 73 is not a substitute for ensuring, in each specific situation,that these rights will indeed be fully respected by the Member States in this framework.Indeed :• Where a European legislative instrument provides an exception for the benefit <strong>of</strong> theMember States, this creates the impression that when they will be acting inconformity with the exception which is provided, within the limits it imposes, they70 See, e.g., Eur. Ct HR, Young, James et Webster v. United Kingdom judgment <strong>of</strong> 13 August 1981, Series A n° 44,§ 89 ; Eur. Ct. HR, X and Y v. the Netherlands judgment <strong>of</strong> 26 March 1985, Series A n°91, § 23 ; Eur. Ct. HR,Lopez Ostra v. Spain judgment <strong>of</strong> 9 December 1994, Series A n° 303-C, § 51 ; Eur. Ct. HR, A v. the UnitedKingdom judgment <strong>of</strong> 23 September 1998.71 Comp. Eur. Ct. HR., Iglesias Gil and A.U.I. v. Spain judgment <strong>of</strong> 29 April 2003 (Appl. n° 56673/00), §§ 51-52.72 Protocol on the application <strong>of</strong> the principles <strong>of</strong> subsidiarity and <strong>of</strong> proportionality, annexed to the EC Treaty bythe Treaty <strong>of</strong> Amsterdam, para. 6.73 This concerns not only the provisions <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights (Article 51(1) <strong>of</strong> the Charter), butalso the fundamental rights which are part <strong>of</strong> the general principles <strong>of</strong> Union law and the respect <strong>of</strong> which theEuropean Court <strong>of</strong> Justice controls on the basis <strong>of</strong> Article 220 EC, in all situations where the Member Statesimplement European law (see, e.g., the judgment <strong>of</strong> 13 July 1989 in Case 5/88, H. Wachauf, (1989) ECR 2609(Recital 19) ; or the judgment <strong>of</strong> 3 December 1992 in Case C-97/91, O. Borelli SpA, (1992) ECR 6313 (Recitals 14and 15)), where they make use <strong>of</strong> an exception provided by the treaties (judgment <strong>of</strong> 28 October 1975, Case 36/75,Rutili, (1975) ECR 1219 (Recital 32) ; judgment <strong>of</strong> 18 June 1991, Case C-260/89, ERT, (1991) ECR I-2925(Recital 43)) or by the case-law <strong>of</strong> the European Court <strong>of</strong> Justice (judgment <strong>of</strong> 26 June 1997, Case C-368/95,Familiapress, (1997) ECR I-3689, Recitals 18 and 19 ; judgment <strong>of</strong> 12 June 2003, Case C-112/00, Schmidberger,Recitals 71 to 78).CFR-CDF.rep.UE.2003.en

32EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSwill be per definition acting in conformity with the requirements <strong>of</strong> fundamentalrights. This however will not always be the case. Where such an impression risksbeing created, it should be removed.• The general obligation imposed on the Member States to respect the fundamentalrights when they act in the field <strong>of</strong> application <strong>of</strong> Union law is verified post hoc, andmay be subjected to the control <strong>of</strong> the European Court <strong>of</strong> Justice, in the limits <strong>of</strong> itsjurisdiction. But a control ex ante, <strong>of</strong> a preventive nature, imposing on the legislator<strong>of</strong> the Union to act with precaution and to better delineate the margin <strong>of</strong> appreciation<strong>of</strong> the States with respect to the requirements <strong>of</strong> fundamental rights, <strong>of</strong>fers betterguarantees <strong>of</strong> legal certainty. Moreover, this may avoid having to request theEuropean Court <strong>of</strong> Justice to intervene, and this avoids making the effectiveness <strong>of</strong>the protection <strong>of</strong> fundamental rights depend on the scope <strong>of</strong> the jurisdiction <strong>of</strong> theEuropean Court <strong>of</strong> Justice.• The norms relating to fundamental rights are generally formulated in vague andgeneral terms. The intervention <strong>of</strong> the European legislator <strong>of</strong>fers an opportunity toexamine, in a more specific and contextualized, the requirements which derive fromthose norms. In the course <strong>of</strong> such specification moreover, the interpretation given tothose norms by jurisdictions or by expert committees should be taken into account,whose work however may be underestimated or insufficiently known because <strong>of</strong> thespecialized character <strong>of</strong> their task <strong>of</strong> clarification <strong>of</strong> the States’ obligations. Such aspecification, by the European legislator, <strong>of</strong> the obligations which are imposed on theMember States with respect to fundamental rights in the implementation <strong>of</strong> Unionlaw, may limit the risk that these rights are violated by the national authorities, evenwhere such violations are to be explained by the sheer lack if knowledge about thenorms which regulate a particular question. Another advantage <strong>of</strong> this clarificationoccurring at the level <strong>of</strong> the Union is that this limits the converse risk, that theauthorities <strong>of</strong> the Member States <strong>of</strong>fer a particularly large interpretation <strong>of</strong> therequirements <strong>of</strong> fundamental rights, thereby – under the pretext <strong>of</strong> respecting theserights – escaping or limiting their obligations under EC or EU Law.• Finally it should be considered that a gap exists between the situation where aninstrument <strong>of</strong> secondary EU/EC Law risks being annulled or found by the EuropeanCourt <strong>of</strong> Justice to be invalid, on the one hand, and the situation where, withoutrunning this risk, a legislative act <strong>of</strong> the Union/Community could have ensured abetter protection <strong>of</strong> fundamental rights, by detailing, in a more detailed manner, thefundamental rights requirements which are imposed on the Member States when theyimplement such an act. Where the European legislator has clearly violated his duty toprotect, for example by adopting an act which provides for an exception for thebenefit <strong>of</strong> the Member States which these would not be able to rely upon unless inviolation <strong>of</strong> fundamental rights 74 , the said act could be challenged by a direct actionfor annulment <strong>of</strong> its validity contested in a referral for a preliminary ruling. In thiscase, it would not seem to matter that the member States simply have been affordedthe possibility to make use <strong>of</strong> the exception, without being obliged to do so: the act inquestion has indeed made possible the violation <strong>of</strong> fundamental rights, and this alonemay suffice to find it being invalid.74 This could be the case, for instance, <strong>of</strong> Article 14(2) <strong>of</strong> Directive 2003/86 <strong>of</strong> 22 September 2003 on the right t<strong>of</strong>amily r<strong>eu</strong>nification, which says that « Member States may decide according to national law the conditions underwhich family members shall exercise an employed or self-employed activity. These conditions shall set a timelimit which shall in no case exceed 12 months, during which Member States may examine the situation <strong>of</strong> theirlabour market before authorising family members to exercise an employed or self-employed activity. ». It appearsdifficult to conceive <strong>of</strong> a use <strong>of</strong> this clause by the Member States which would not result in an indirectdiscrimination against women, in violation <strong>of</strong> the general principles <strong>of</strong> Community law and <strong>of</strong> Article 23 <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200333Of course, not all the violations committed by the Member States in the implementation <strong>of</strong>EU/EC Law could be imputed to the legislator <strong>of</strong> the Union: the positive obligation imposedon the European legislator must be understood reasonably, and it particular, it should take intoaccount the fact that the instruments adopted at the level <strong>of</strong> the European Union will have toapply to very diverse situations, which per necessity will lead them to use vague and flexiblenotions. This has been adequately underlined by the European Court <strong>of</strong> Justice in thejudgment it delivered on 6 November 2003 in the case <strong>of</strong> Lindqvist 75 . As Ms Lindqvist, whohad been convicted for having violated the Swedish legislation on the protection <strong>of</strong> personaldata adopted in implementation <strong>of</strong> Directive 95/46/EC, argued that this Directive could be inviolation <strong>of</strong> freedom <strong>of</strong> expression, as it does not define itself where the balance should belocated between freedom <strong>of</strong> expression and the right to privacy, the Court answers that theCommunity legislature may not always be capable <strong>of</strong> deciding in advance on all thecontentious situations which could present themselves. The Court notes that the provisions <strong>of</strong>Directive 95/46/EC “are necessarily relatively general since it has to be applied to a largenumber <strong>of</strong> very different situations […] the directive quite properly includes rules with adegree <strong>of</strong> flexibility and, in many instances, leaves to the Member States the task <strong>of</strong> decidingthe details or choosing between options » (Recital 83), and therefore, although « in manyrespects, the Member States have a margin for mano<strong>eu</strong>vre in implementing Directive 95/46 »,nevertheless « there is nothing to suggest that the regime it provides for lacks predictability orthat its provisions are, as such, contrary to the general principles <strong>of</strong> Community law and, inparticular, to the fundamental rights protected by the Community legal order » (Recital 84).It is perfectly common that the obligation to protect fundamental rights is defined as having tobe “reasonably” understood: such an obligation is an obligation <strong>of</strong> means, rather than <strong>of</strong>result. Nevertheless, in obliging the European legislator to guarantee a high degree <strong>of</strong>protection <strong>of</strong> fundamental rights in the instruments it adopts, to remove to all the extentpossible the risk <strong>of</strong> violation <strong>of</strong> these rights in the implementation <strong>of</strong> Union law by theMember States, the global level <strong>of</strong> fundamental rights will be improved.Thus, to impose to the institutions <strong>of</strong> the Union an obligation to prevent the risk <strong>of</strong> violations<strong>of</strong> fundamental rights in the implementation <strong>of</strong> European law by the Member States, by amore detailed specification <strong>of</strong> the requirements derived from fundamental rights which theStates must respect, would have a number <strong>of</strong> advantages. Two institutional translations couldfollow. First, this would require that during the legislative procedure, the institutionssystematically identify the risks <strong>of</strong> fundamental rights violations the States could commit inthe implementation <strong>of</strong> the instrument in preparation, and that they prevent this risk frommaterialising by inserting the appropriate clauses in the instruments they adopt. Since March2001, the Commission systematically accompanies with a reference to the Charter theinstruments which could present a link to fundamental rights. This undertaking to verify thecompatibility <strong>of</strong> the legislative proposals from the Commission with the Charter shouldtranslate into the precise identification <strong>of</strong> the requirements <strong>of</strong> fundamental rights in eachspecific domain, and the reformulation <strong>of</strong> these requirements in the instrument proposed foradoption by the European legislator 76 . Purely general statements, for instance by a simplereference to the applicable international instruments, are <strong>of</strong> limited usefulness; instead, aneffective prevention <strong>of</strong> violations would suppose a more detailed description <strong>of</strong> therequirements which follow from these instruments, to avoid the risk that the States will only75 Case C-101/01.76 This would imply for instance that a directive on the right to family r<strong>eu</strong>nification restate the relevant norms <strong>of</strong>the international law <strong>of</strong> human rights in this field, defining clearly which limits the States may not ignore in theimplementation <strong>of</strong> the directive; or that a directive on on assistance in cases <strong>of</strong> transit for the purposes <strong>of</strong>removal by air makes explicit the exceptions to the obligation to assist imposed on the State <strong>of</strong> transitin such cases, which are imposed by the obligation for that State to respect internationally recognizedhuman rights, including the interpretation there<strong>of</strong>, for instance by the UN Committee Against Torture;or that the Working Time Directive details the rules which follow from the reading by the European Committee onSocial Rights <strong>of</strong> the European Social Charter.CFR-CDF.rep.UE.2003.en

34EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSconform to those requirements after being incited to do so following a judgment <strong>of</strong> theCommunity judicature. Second, the legislative instruments adopted within the Union provide,more frequently than was previously the case, a follow-up <strong>of</strong> their application, so that theseinstruments may be revised in the light <strong>of</strong> the experience gained in the course <strong>of</strong> thisapplication 77 . The question <strong>of</strong> the respect <strong>of</strong> fundamental rights in the application <strong>of</strong> theinstruments which such reports seek to evaluate must be seen as a priority. If it appears thatdifficulties have occurred, because <strong>of</strong> the lack <strong>of</strong> precision <strong>of</strong> these instruments on thefundamental rights requirements relevant to their implementation, this should then beremedied. The templates <strong>of</strong> such reports should be conceived to effectively fulfil thisfunction: these templates should comprise an evaluation specifically on the fundamentalrights impact, and this should be done with specialized tools. In fact, many <strong>of</strong> therecommendations made in this report are deliberately situated in the perspective <strong>of</strong> suchevaluation mechanisms <strong>of</strong> existing instruments.The finding that the risk <strong>of</strong> violations <strong>of</strong> fundamental rights in European law essentially residein the manner in which the Member States will ensure its implementation, produces a lastconsequence. Where such a violation occurs in the framework <strong>of</strong> the EC Treaty, it falls uponthe Commission, in conformity with the role Articles 211 and 226 EC attribute to it, toexamine whether it should launch infringement proceedings against the Member State whoseimplementation <strong>of</strong> Union law, in that respect, is not satisfactory. It would not be justified tolimit to the sole hypothesis <strong>of</strong> Article 7 EU the possibilities for the European Commission toreact to the violation by a Member State <strong>of</strong> the fundamental rights which belong to thecommon values on which the Union is founded. Where such a violation occurs in the field <strong>of</strong>application <strong>of</strong> Community law, it is, in the first instance, a violation <strong>of</strong> EC Law itself; and itmust be treated accordingly, and not as an exceptional situation, distinct for instance from thebanal hypothesis <strong>of</strong> a directive which has been incorrectly transposed 78 . Where the violationis situated in the implementation <strong>of</strong> an instrument adopted under titles V or VI <strong>of</strong> the Treatyon the European Union, the Commission is not recognized the power to launch an actionagainst the Member State in violation <strong>of</strong> its obligations under the TEU, for example where aFramework Decision adopted under Articles 29 and following EU has been inadequatelytransposed. Article 35(7) EU provides that each Member State may introduced suchinfringement proceedings against another Member State, where no agreement could be foundwithin the Council after a period <strong>of</strong> six months. This alternative to infringement proceedingsas they exist under the EC Treaty is not satisfying. In the absence <strong>of</strong> mechanisms ensuringthat the implementation by the Member States <strong>of</strong> instruments adopted under Titles V and VIEU will be adequately monitored, therefore, it is even more important that these instruments77 See, e.g., Article 17 <strong>of</strong> Council Directive 2000/43/EC <strong>of</strong> 29 June 2000 implementing the principle <strong>of</strong> equaltreatment between persons irrespective <strong>of</strong> racial or ethnic origin, OJ L 180 <strong>of</strong> 19/7/2000, p. 22; Article 19 <strong>of</strong>Directive 2000/78/EC <strong>of</strong> 27 November 2000 establishing a general framework for equal treatment in employmentand occupation, OJ L 303 <strong>of</strong> 2/12/2000, p. 16; Article 17 <strong>of</strong> Regulation (EC) No 1049/2001 <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council <strong>of</strong> 30 May 2001 regarding public access to European Parliament,Council and Commission documents (OJ L 145 <strong>of</strong> 31.5.2001, p. 43) ; Article 34(2) <strong>of</strong> the FrameworkDecision <strong>of</strong> the Council <strong>of</strong> 13 June 2002 on the European arrest warrant and the surrender proceduresbetween Member States (2002/584/JAI, OJ L 190 <strong>of</strong> 18.7.2002) ; Article 33 <strong>of</strong> Directive 95/46/EC <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council <strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals withregard to the processing <strong>of</strong> personal data and on the free movement <strong>of</strong> such data (OJ L 281 <strong>of</strong> 23.11.1995,p. 31); or Article 15 <strong>of</strong> the new instrument proposed in the Commission proposal for a Council Directiveimplementing the principle <strong>of</strong> equal treatment between women and men in the access to, and theprovision <strong>of</strong>, goods and services (COM(2003)657 final).78 In the case <strong>of</strong> Lindqvist referred to above, the European Court <strong>of</strong> Justice insists on the obligation imposed on thenational authorities, in the implementation <strong>of</strong> Community law, especially with regard to fundamental rights: « it isfor the authorities and courts <strong>of</strong> the Member States not only to interpret their national law in a manner consistentwith Directive 95/46 but also to make sure they do not rely on an interpretation <strong>of</strong> it which would be in conflictwith the fundamental rights protected by the Community legal order or with the other general principles <strong>of</strong>Community law, such as inter alia the principle <strong>of</strong> proportionality » (Recital 87).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200335include from the early stages, since the moment <strong>of</strong> their initial conception, the requirement <strong>of</strong>a high level <strong>of</strong> protection <strong>of</strong> fundamental rights.III. CONCLUSIONThe establishment between the Member States <strong>of</strong> the Union <strong>of</strong> an area <strong>of</strong> freedom, securityand justice, does not mean that the protection <strong>of</strong> fundamental rights must be ensuredeverywhere in an equivalent manner. Diversity itself is a source <strong>of</strong> learning for all, and cancontribute to the progress <strong>of</strong> rights. Three reservations should be made, however. First, wherethe intervention <strong>of</strong> the Union – in the limits imposed by the principle <strong>of</strong> attributed powers –could facilitate the compliance by the Member States with their international undertakings,the opportunity <strong>of</strong> such an intervention must at least be carefully considered: although theUnion is not bound itself, in the international legal order, by the same instruments – also thisreport calls for a renewed reflection on that question (hereabove, II.1.) –, it cannot remainpassive in situations where the fact that the Member States share a common area cuts throughtheir efforts to better conform themselves the international instruments for the protection <strong>of</strong>human rights to which they are parties (hereabove, II.2.). Second, in the fields where theinstitutions <strong>of</strong> the Union have not acted to define a harmonized or a minimum level <strong>of</strong>protection <strong>of</strong> fundamental rights, by lack <strong>of</strong> powers or by political choice, at least should theyclosely monitor the compliance with fundamental rights <strong>of</strong> the Member States, when they actin the field <strong>of</strong> application <strong>of</strong> Union law. Anchoring fundamental rights in the EU legal orderrequires, at a minimum, that the violations <strong>of</strong> these rights which the national authorities couldcommit in the implementation <strong>of</strong> Union law be treated with the same severity as would be, forinstance, the inadequate transposition <strong>of</strong> directives which result in distortions <strong>of</strong> competitionbetween the Member States or in obstacles to trade within the internal market. Third, in thefields where the institutions <strong>of</strong> the Union intervene, they must seek to ensure a high level <strong>of</strong>protection <strong>of</strong> fundamental rights, rather than to content themselves with a vague and generalrequirement that these rights be respected and with the control, in the last instance, which theCourt <strong>of</strong> Justice can perform within the boundaries <strong>of</strong> its jurisdiction. This would translateinto a better prevention <strong>of</strong> the risks <strong>of</strong> violations by a more systematic clarification <strong>of</strong> thelimits which the Member States cannot ignore when they implement Union law. Theadvantages <strong>of</strong> such an approach have been described (hereabove, II.3.). This report will seekto identify what would be gained by such an approach, in the analysis it presents <strong>of</strong> theactivities <strong>of</strong> the Union in the year 2003.CFR-CDF.rep.UE.2003.en

CHAPTER I : DIGNITYArticle 1. Human dignityFor a presentation <strong>of</strong> the debate concerning the Community funding <strong>of</strong> research on humanembryonic stem cells, the reader is referred to the commentary <strong>of</strong> Article 13 (Freedom <strong>of</strong> thearts and sciences). No other significant evolution has taken place during the period underscrutiny.Article 2. Right to lifeThe integrated control <strong>of</strong> the external borders <strong>of</strong> the UnionThe area where the right to life is under the most serious threat is in the operational measurestaken to ensure the control <strong>of</strong> the external borders <strong>of</strong> the Union. In May 2002, aCommunication <strong>of</strong> the Commission had announced its intention to propose a European Corps<strong>of</strong> Border Guards, as well as an External borders practitioners’ common unit entrusted withmanaging operational co-operation at the external borders <strong>of</strong> the Member States 79 . It now hasproposed to build upon the previous experience <strong>of</strong> the Common Unit <strong>of</strong> external borderspractitioners to create a European Agency for the Management <strong>of</strong> Operational Co-operation atthe External Borders, also entrusted with the co-ordination and organisation <strong>of</strong> returnoperations <strong>of</strong> Member States and with the identification <strong>of</strong> best practices on the acquisition <strong>of</strong>travel documents and removal <strong>of</strong> third country nationals from the territories <strong>of</strong> the MemberStates 80 . The Council on Justice and Home Affairs <strong>of</strong> 27-28 November 2003 welcomed thisinitiative, noting in particular in its conclusions that « the Agency should facilitate theoperational cooperation between Member States and third countries, in the framework <strong>of</strong> theEuropean Union external relations policy in the Justice and Home Affairs field » 81 - an aspect<strong>of</strong> the tasks <strong>of</strong> the Agency which the draft regulation proposed by the Commission does notallude to 82 . This development should be related to the conduction <strong>of</strong> a “Feasibility study onthe control <strong>of</strong> the European Union’s maritime borders” by Civipol Conseil to theCommission 83 as well as to the adoption <strong>of</strong> a “Programme <strong>of</strong> measures to combat illegalimmigration across the maritime borders <strong>of</strong> the European Union” 84 .The relationship <strong>of</strong> these developments to the right to life is too well known to emphasize.The Civipol feasibility study notes (at p. 15):On the maritime borders <strong>of</strong> Spain and Italy, there were a hundred accidental deaths ayear for about forty thousand crossings in 2001 and 2002. The increasing deterrenteffective <strong>of</strong> improving the surveillance and control mechanisms <strong>of</strong> the Spanish andItalian authorities on the Straits <strong>of</strong> Gibraltar and the Sicilian Channel is shifting thefocus towards riskier passages, the Canary Islands Channel and the Gulf <strong>of</strong> Sirte. Therewere consequently a number <strong>of</strong> serious accidents in the first half <strong>of</strong> 2003 and anestimate <strong>of</strong> 400 drowned does not seem exaggerated. On the Greek-Turkish border, theabsence <strong>of</strong> figures does not necessarily mean that there were no accidents.79 Communication from the Commission to the Council and the European Parliament - towards integratedmanagement <strong>of</strong> the external borders <strong>of</strong> the member states <strong>of</strong> the European Union, COM(2002)233 final.80 Proposal for a Council Regulation establishing a European Agency for the Management <strong>of</strong> Operational Cooperationat the External Borders, COM(2003)687 final, <strong>of</strong> 11.11.2003. The question <strong>of</strong> expulsion <strong>of</strong> third-countrynationals will be dealt with under Article 19 <strong>of</strong> the Charter.81 2548th Council meeting - Justice and Home Affairs - Brussels, 27 and 28 November 2003 (PRES/03/334).82 See also the Programme <strong>of</strong> measures to combat illegal immigration across the maritime borders <strong>of</strong> the EuropeanUnion (Doc. 13791/03, FRONT 146, COMIX 631, 21.10.2003), para. 29 and para. 33.83 Doc. 11490/1/03, Rev. 1, FRONT 102, COMIX 458, 19.9.2003. This study was prepared for the Commissionupon request <strong>of</strong> the JAI Council.84 Doc. 13791/03, FRONT 146, COMIX 631, 21.10.2003.

38EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSThe Programme <strong>of</strong> measures to combat illegal immigration across the maritime borders <strong>of</strong> theEU envisages the possibility <strong>of</strong> inspecting ships on the high seas which are suspected to bringillegal migrants to the a port located in the EU. Although the Montego Bay Convention on theLaw <strong>of</strong> the Sea normally does not authorize such inspections by a State other than the flagState, the Programme notes that such inspection is possible under that Convention a) wherethe vessel has no nationality or its nationality is in doubt (Article 110) or b) where the flagState has consented to such inspection, either by writing or orally, in which case “the twoStates can also determine the subsequent action to be taken with regard to any illegalimmigrants found on board” (par. 18). In fact, both the possibility <strong>of</strong> such interceptions at seaand the cooperation with third States are essential to the programme <strong>of</strong> measures proposed, asthese include the exercise <strong>of</strong> “pre-border” checks and “joint processing <strong>of</strong> illegal immigrantsintercepted at sea” (par. 26). The Programme proposes, inter alia, “providing non-membercountries with technical and organisational assistance in stepping up surveillance <strong>of</strong> coastsfrom which illegal migrants leave”, “joint sea patrols carried out by the navies <strong>of</strong> MemberStates and or non-member countries concerned by illegal migration flows”, “conducting navaloperations to intercept and restrain vessels carrying illegal immigrants”, “ordering interceptedvessels into safe ports”, “arranging for immigrants found on board vessels to be processed andfor traffickers to be brought to justice”.It is premature to study in detail these proposals. However, the requirements imposed by theEuropean Convention on Human Rights on the Member States <strong>of</strong> the European Union shouldbe recalled, as the proposals which this rapport<strong>eu</strong>r has seen appear to underestimate thedifficulty <strong>of</strong> fully complying with those requirements in the organisation <strong>of</strong> such a protection<strong>of</strong> the maritime borders from illegal immigration. States <strong>of</strong> course exercise a sovereigncontrol on whom they wish to admit on their territory. The European Court <strong>of</strong> Human Rightshas stated that, when they refuse access to their territory, they are not violating the “freedomto leave any country, including his own”, which Article 2 <strong>of</strong> Protocol 4 ECHR recognizes 85 .However, any measure they adopt in exercising this power must comply with theirinternational obligations, especially human rights. It is <strong>of</strong> course evident that States mustprotect the right to life <strong>of</strong> persons under their jurisdiction, and this would appear to apply tothe situation <strong>of</strong> a boat being intercepted at sea: when making such interception, the Stateauthorities are obliged to take all the necessary measures to avoid, in particular, drowning 86 .Moreover, even where they act outside the national territory, State agents may engage theinternational responsibility <strong>of</strong> the State <strong>of</strong> which they are the organs 87 : this is the case, inparticular, where the effectively exercise a control on a person, acting as if on the basis <strong>of</strong>sovereign powers 88 . It should be clear therefore that, whether they act “preventively”,intercepting a vessel on the high seas for instance to return immediately the vessel to its port<strong>of</strong> origin if it appears that it has illegal candidate immigrants on board, the State authoritiesare to comply with precisely the same obligations as those imposed on them when third-85 See Eur. Ct. HR, Xhavara and Others v. Albania and Italy, Appl. n° 39473/98 (inadmissibility decision <strong>of</strong> 11January 2001).86 See Eur. Ct. HR, Xhavara and Others v. Albania and Italy, cited above. This case concerned the deaths <strong>of</strong> anumber <strong>of</strong> Albanians seeking to enter Italy illegally by boat, after that boat was intercepted and sank.87 See Eur. Ct. HR, Halima Musa Issa and Others v. Turkey, Appl. n° 31821/96 (admissibility decision <strong>of</strong> 30 May2000) (Turkish Army intervening against shepherdesses in Northern Iraq).88 Voy. Cour <strong>eu</strong>r. D.H. (1 ière section), arrêt Ocalan c. Turquie (req. n° 46221/99) du 12 mars 2003, § 93, à proposde l’arrestation par les autorités turques du requérant, alors qu’il se trouvait encore en territoire kenyan : « Lerequérant, dès sa remise par les agents kenyans aux agents turcs, s'est effectivement retrouvé sous l'autorité de laTurquie et relevait donc de la « juridiction » de cet Etat aux fins de l'article 1 de la Convention, même si, enl'occurrence, la Turquie a exercé son autorité en dehors de son territoire. La Cour estime que les circonstances dela présente affaire se distinguent de celles de l'affaire Bankovic et autres [bombardement de la radio-télévisionserbe à Belgrade par les forces de l’OTAN : la Cour <strong>eu</strong>ropéenne de droits de l’homme avait refusé de considérerque les requérants, qui se plaignaient notamment d’une atteinte au droit à la vie, se trouvaient sous la« juridiction » des membres de la coalition, au sens de l’article 1 er de la Convention], notamment en ce que lerequérant a été physiquement contraint à revenir en Turquie par des fonctionnaires turcs et a été soumis à l<strong>eu</strong>rautorité et à l<strong>eu</strong>r contrôle dès son arrestation et son retour en Turquie ». Cette affaire a fait l’objet d’un renvoidevant la Grande Chambre de la Cour.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200339country nationals arrive at the national border. All their human rights must be respected. Theyalso must have the right to claim asylum upon being intercepted. On 31 October 2003, theCommittee on Migration, Refugees and Population <strong>of</strong> the Parliamentary Assembly <strong>of</strong> theCouncil <strong>of</strong> Europe unanimously approved a draft recommendation « Access to assistance andprotection for asylum seekers at European seaports and coastal areas » 89 . It is useful toreproduce its operative part here, although par. j) <strong>of</strong> the draft recommendation is the mostrelevant to the question under examination here. The draft recommendation invites theCommittee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe to call upon the member states to:a. ensure that those who wish to apply for asylum at seaports and coastal areas aregranted unimpeded access to the asylum procedure, including through interpretation intheir language or, if not possible, in a language they understand and to free and<strong>independent</strong> legal advice;b. ensure that every person seeking entry at seaports or coastal areas be given thepossibility <strong>of</strong> explaining in full the reasons while s/he is trying to do so, in an individualinterview with the relevant authorities;c. set up a system to ensure the permanent availability <strong>of</strong> <strong>independent</strong> and pr<strong>of</strong>essionallegal advice and representation in the field <strong>of</strong> asylum and migration at seaports andcoastal areas, and monitor its quality;d. take full responsibility for immigration control at seaports including through theinvestment in methods <strong>of</strong> prevention and detection and, where necessary, the increase<strong>of</strong> police and immigration staff, working in partnership with private actors involved inseaport activities;e. improve international co-operation between police, judicial and immigrationauthorities through the exchange <strong>of</strong> intelligence and information with a view todismantling <strong>network</strong>s <strong>of</strong> smugglers operating at European and international level;f. introduce harmonised criminal legislation to punish the smuggling <strong>of</strong> migrants andthe trafficking <strong>of</strong> human beings;g. ensure that vulnerable persons such as unaccompanied minors/separated children, theelderly, the sick and pregnant women who arrive at seaports or coastal areas, even ifthey do not apply for asylum, be given appropriate assistance and accommodationpending their removal or the granting <strong>of</strong> legal status; in addition, unaccompaniedminors/separated children should be provided with effective legal guardianship as soonas their presence comes to the attention <strong>of</strong> the authorities <strong>of</strong> a member state;h. establish appropriate and permanent reception structures in coastal areas and nearseaports, to provide accommodation to the newly-arrived, whether they apply forasylum or not;i. accept responsibility for processing asylum applications <strong>of</strong> stowaways when they arethe first port <strong>of</strong> call <strong>of</strong> the planned route <strong>of</strong> the ship;j. in the context <strong>of</strong> their responsibilities for immigration control, conduct sea patrollingoperations in such a way as to fully comply with the 1951 Refugee Convention and the89 Doc. 10011, 5 December 2003 (rapp. F. Danieli). The draft recommendation is submitted to the ParliamentaryAssembly for discussion in January 2004. This report is closed before the Parliamentary Assembly could examinethe proposed recommendation. [NOTE. Since this report was completed, the Parliamentary Assembly adopted thisrecommendation without modification].CFR-CDF.rep.UE.2003.en

40EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS1950 European Convention on Human Rights, by avoiding that people are returned tocountries where they would be at risk <strong>of</strong> persecution or human rights violations.On the more specific question <strong>of</strong> patrolling operations and interception at sea, the rapport<strong>eu</strong>r<strong>of</strong> the committee considers (§ 22 <strong>of</strong> the Report) that « that patrolling operations should nothave the aim <strong>of</strong> diverting the vessel from the territorial waters before a screening has takenplace to ascertain the nationality and identity <strong>of</strong> the passengers, as well as the reasons whythey were seeking entry into a Council <strong>of</strong> Europe member state. (…) failure to do so would bean implementation in bad faith <strong>of</strong> member states' obligations under the 1951 RefugeeConvention on refugee status: once a vessel is in the territorial waters <strong>of</strong> a state it is in thatcountry. Therefore diverting the vessel outside territorial waters would imply refusing toreceive potential applications for protection from those on board, and therefore returningpotential refugees. ». The Report adds that « the interception <strong>of</strong> a vessel transporting potentialillegal migrants to prevent its entry into territorial waters could be in contravention <strong>of</strong> Council<strong>of</strong> Europe member states' international obligations when there is a risk that, by so doing, thoseon board may be returned to a country where they could face persecution under the 1951Refugee Convention or human rights violations under the European Convention on HumanRights. Besides, a situation which should be avoided in all circumstances is that the vessel isleft 'in orbit', because no state accepts the entry <strong>of</strong> the vessel in its territorial waters and thesubsequent screening <strong>of</strong> immigration applications, including potential asylum applications.This situation is in breach <strong>of</strong> fundamental principles <strong>of</strong> humanity and dignity <strong>of</strong> the humanbeing. » (§ 23) The rapport<strong>eu</strong>r therefore considers that « initiatives such as Ulysses [jointpatrolling in the Mediterranean by Spain, France, Italy, Portugal and the United Kingdom tointercept vessels transporting irregular migrants], as well as other future initiatives <strong>of</strong> jointpatrolling, should be closely monitored to avoid that they are conceived as a sheer barrier tothe entry <strong>of</strong> all those who try to seek entry into a country by sea in a clandestine manner,including potential asylum seekers » (§ 26).Prevention <strong>of</strong> violence against children, young people and women, and protection <strong>of</strong> victimsand groups at riskThe assessment <strong>of</strong> the first phase <strong>of</strong> the Daphne programme (2000-2003), which wascompleted on 31 December 2003, has made it possible to highlight the added value which theCommunity initiative represents in the support, co-ordination and exchange <strong>of</strong> experiencesaimed at preventing violence against children, young people and women, and the protection<strong>of</strong> victims and groups at risk. This assessment is shared by the European Parliament, whichhas asked for an increase in the budget earmarked for the second phase <strong>of</strong> the programme 90 –planned for a five-year period from 1 January 2004 (2004-2008) –.The objectives <strong>of</strong> the programme are still the same, although its instruments will be somewhatmodified in the proposal for a decision which the Commission has submitted 91 : in particular,more ambitious projects may be considered for Community support, while the proposedprogramme may also develop - through complementary actions such as studies, seminars,formulation <strong>of</strong> indicators, or meetings <strong>of</strong> <strong>experts</strong> (Article 2 § 2, b, <strong>of</strong> the amended proposalfor a decision) - the dimension <strong>of</strong> sharing and disseminating the knowledge contained in theprogramme, with a view to mutual instruction on the good practices to be followed with aview to the prevention <strong>of</strong> violence. Article 2 §1 <strong>of</strong> the decision proposed by the Commission90 Resolution <strong>of</strong> 4 September 2002 (2001/2265(INI)).91 Proposal for a Decision <strong>of</strong> the European Parliament and <strong>of</strong> the Council establishing a second phase <strong>of</strong> aprogramme <strong>of</strong> Community action (2004-2008) to prevent violence against children, young people and women andto protect victims and groups at risk (the Daphne II programme), COM(2003)54 final <strong>of</strong> 4/2/2003; subsequently,after receipt <strong>of</strong> the opinion <strong>of</strong> the European Parliament formulated in a resolution <strong>of</strong> 3 September 2003, AmendedProposal for a Decision <strong>of</strong> the European Parliament and <strong>of</strong> the Council establishing the second phase <strong>of</strong> aprogramme <strong>of</strong> Community action (2004-2008) to prevent violence against children, young people and women andto protect victims and groups at risk (the Daphne II programme), COM(2003)616 final <strong>of</strong> .CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200341undoubtedly contains the most precise formulation <strong>of</strong> the programme’s objectives and,consequently, <strong>of</strong> the actions that it is designed to support. The aim <strong>of</strong> Daphne II “shall be toprevent and combat all forms <strong>of</strong> violence against children, young people and women bytaking preventive measures and by providing support for victims, including in particular theprevention <strong>of</strong> future exposure to violence, and to assist and encourage non-governmentalorganizations and other organizations active in this field”.On 1 December 2003, the Council on Employment, Social Policy, Health and ConsumerAffairs adopted the Daphne II programme (2004-2008) 92 , and approved a proposal for abudget <strong>of</strong> 50 million <strong>eu</strong>ros for the five years <strong>of</strong> the programme.Article 3. Right to the integrity <strong>of</strong> the personCombating trafficking in human organs and tissuesArticle 3 § 3 <strong>of</strong> the Charter contains a prohibition on making the human body and its parts assuch a source <strong>of</strong> financial gain. This provision faithfully adopts the wording <strong>of</strong> Article 21 <strong>of</strong>the Convention for the Protection <strong>of</strong> Human Rights and Dignity <strong>of</strong> the Human Being withregard to the Application <strong>of</strong> Biology and Medicine (Convention on Human Rights andBiomedicine), concluded in 1997 within the Council <strong>of</strong> Europe 93 . On 24 January 2002, anAdditional Protocol to this Convention, on transplantation <strong>of</strong> organs and tissues <strong>of</strong> humanorigin, was opened for signature by the States parties. Articles 21 and 22 <strong>of</strong> this AdditionalProtocol detail the prohibition contained in Article 21 <strong>of</strong> the main Convention.It is in this context that the initiative <strong>of</strong> the Greek Republic for the adoption <strong>of</strong> a frameworkdecision on the prevention and control <strong>of</strong> trafficking in human organs and tissues is situated 94 .The initiative finds its legal basis in Articles 29 and 31, e), EU, which is justified by includingin the notion <strong>of</strong> “trafficking in human beings” trafficking in human organs and tissues 95 , aswell as by the observation in the Preamble that the trafficking in question “is an area <strong>of</strong>activity <strong>of</strong> organized criminal groups who <strong>of</strong>ten have recourse to inadmissible practices suchas the abuse <strong>of</strong> vulnerable persons and the use <strong>of</strong> violence and threats” (2 nd recital). In thisway, it can be approached as a form <strong>of</strong> organized crime and finds a legal basis in Article 31,e), EU. As in various other instruments adopted under Title VI <strong>of</strong> the Treaty on EuropeanUnion and aimed at establishing minimum rules relating to the constituent elements <strong>of</strong>criminal acts and to penalties, the Member States should provide for the penal liability <strong>of</strong>legal persons on whose behalf <strong>of</strong>fences as defined by the proposed framework decision havebeen committed, and extend their jurisdiction to cover situations where the <strong>of</strong>fence wascommitted by their nationals or by legal persons established on their territory.Although there is no reason to doubt the expediency <strong>of</strong> an initiative in this field, whichaffords an additional illustration <strong>of</strong> the contribution that the European Union can make by thedevelopment <strong>of</strong> its criminal law to the protection <strong>of</strong> fundamental rights, we need to highlightthe paradox whereby, in order to justify an intervention by the Union in the fight againstorganized crime, penalties defined at a particularly high minimum level are provided for 96 .92 2549 th meeting <strong>of</strong> the Council on Employment, Social Policy, Health and Consumer Affairs in Brussels, 1 and 2December 2003.93 The Convention was opened for signature by the Member States <strong>of</strong> the Council <strong>of</strong> Europe and, at the invitation<strong>of</strong> the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe (Article 34), for signature by non-Member States on 4April 1997.94 OJ C 100 <strong>of</strong> 26/4/2003, p. 27.95 As does the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,supplementing the United Nations Convention against Transnational Organized Crime.96 The Preamble states, “It is necessary to introduce penalties on perpetrators sufficiently severe to allow fortrafficking in human organs and tissues to be included within the scope <strong>of</strong> instruments already adopted for thepurpose <strong>of</strong> combating organized crime” (11 th recital).CFR-CDF.rep.UE.2003.en

42EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSThe risk <strong>of</strong> an increase in severe penalties, given that an approximation <strong>of</strong> the criminallegislation <strong>of</strong> the Union Member States seems desirable, bearing in mind the cross-borderdimension <strong>of</strong> this kind <strong>of</strong> <strong>of</strong>fence, shows the need for a flexible approach to the powersdefined in Articles 29 and 31 EU, in which the practice is already partly defined 97 .Community funding <strong>of</strong> research on human embryonic stem cellsThe controversy surrounding the financing, under the 6 th Framework Programme in Researchand Development <strong>of</strong> the European Community, <strong>of</strong> research on human embryonic stem cells,is discussed under Article 13 <strong>of</strong> the Charter.Article 4. Prohibition <strong>of</strong> torture and inhuman or degrading treatment or punishmentThe question <strong>of</strong> the role <strong>of</strong> the European Union in the prohibition <strong>of</strong> torture and inhuman ordegrading treatment or punishment is discussed in several places in this report, in paragraphsdevoted to initiatives that the Union has taken during the period under scrutiny, but whichchiefly concern other provisions <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. The questions that willbe raised by the coming into effect <strong>of</strong> the European arrest warrant, particularly when a personwho is handed over to the State that issued the warrant is at risk <strong>of</strong> being placed in conditionsthat are not in conformity with Article 3 <strong>of</strong> the European Convention on Human Rights, isdiscussed under Article 6 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. Questions relating to theinvocation <strong>of</strong> this clause in the context <strong>of</strong> procedures for the removal <strong>of</strong> aliens are discussedunder Article 19 <strong>of</strong> the Charter. The procedural guarantees aimed at limiting the risk <strong>of</strong> illtreatment, particularly during detention on remand, <strong>of</strong> persons being charged or implicated incriminal actions are examined under Article 48 <strong>of</strong> the Charter.Article 5. Prohibition <strong>of</strong> slavery and forced labourCombating human traffickingThe main recent initiative in the fight against human trafficking is the Framework Decision2002/629/JHA <strong>of</strong> the Council <strong>of</strong> 19 July 2002 on combating trafficking in human beings 98 ,which provides that, by 1 August 2004, the Member States shall render punishable certainacts connected with trafficking in human beings 99 . This Framework Decision, with itsdifficulties <strong>of</strong> interpretation that might be raised by the use <strong>of</strong> terms such as “abuse” and“vulnerability” to characterize the <strong>of</strong>fence, has already been discussed in the previous report<strong>of</strong> the Network 100 . For the period under scrutiny, we should nevertheless point out that theCommission has decided to set up a consultative group called “Experts Group on Traffickingin Human Beings” 101 , consisting <strong>of</strong> twenty individuals specially qualified in this field,proposed by the governments <strong>of</strong> the European Union Member States (including CandidateCountries), as well as by international, inter-governmental and non-governmentalorganizations active in preventing and combating trafficking in human beings. The mission <strong>of</strong>97 It is actually remarkable that Article III-172 <strong>of</strong> the Draft Treaty establishing a Constitution for Europe supplies,besides a list <strong>of</strong> the areas <strong>of</strong> crime where cooperation in the field <strong>of</strong> criminal law is possible, a functional criterionintroducing greater flexibility in the identification <strong>of</strong> the powers <strong>of</strong> the Union, namely “areas <strong>of</strong> particularly seriouscrime with cross-border dimensions resulting from the nature or impact <strong>of</strong> such <strong>of</strong>fences or from a special need tocombat them on a common basis”.98 OJ L 20 <strong>of</strong> 1/8/2002, p. 1.99 This framework decision is founded on a conventional definition <strong>of</strong> trafficking in human beings, and thereforedoes not include trafficking in human organs and tissues. Reference is made on this point to the commentary underArticle 3 <strong>of</strong> the Charter.100 Report on the situation <strong>of</strong> fundamental rights in the European Union and its Member States in 2002, pp. 63-65.101 Commission Decision 2003/209/EC <strong>of</strong> 25 March 2003 setting up a consultative group, to be known as the“Experts Group on Trafficking in Human Beings”, OJ L 079 <strong>of</strong> 26/3/2003, p. 25.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200343this Group is to issue opinions or reports to the Commission at the latter’s request or on itsown initiative, taking into due consideration the recommendations set out in the BrusselsDeclaration that was adopted following the “European Conference on Preventing andCombating Trafficking in Human Beings - Global Challenge for the 21 st Century”, which washeld from 18 to 20 September 2002. One <strong>of</strong> those recommendations was precisely the settingup <strong>of</strong> such an <strong>experts</strong> group. The first task <strong>of</strong> the <strong>experts</strong> group will be to submit, on the basis<strong>of</strong> these recommendations, a report to assist the Commission with a view to launching furtherconcrete proposals at European level.Moreover, a Council Resolution <strong>of</strong> 20 October 2003 on initiatives to combat trafficking inhuman beings, in particular women 102 , which in this respect quotes Article 5 § 3 <strong>of</strong> the Charter<strong>of</strong> Fundamental Rights, by which “Trafficking in human beings is prohibited”, calls upon theMember States to ratify the Palermo Protocol <strong>of</strong> 2002 to Prevent, Suppress and PunishTrafficking in Persons, Especially Women and Children, supplementing the United NationsConvention against Transnational Organized Crime, and also recommends the use <strong>of</strong>Community structural funds - European Social Fund and European Regional DevelopmentFund - to financially support actions to provide assistance to victims as well as to undertakeprevention and facilitate the social and economic integration <strong>of</strong> victims <strong>of</strong> human trafficking.According to the Resolution, the Member States must “support and protect victims inaccordance with national law in order to make it possible for them to return safely to theircountries <strong>of</strong> origin or to receive adequate protection in their host countries, in the context <strong>of</strong>measures supported through the Structural Funds and Community Programme”.Naturally, in order to facilitate the fight against human trafficking, it is essential that thevictims can make it easier through their testimony to take legal action against the perpetrators,and that they do not hesitate to denounce these perpetrators for fear <strong>of</strong> immediate removal totheir country <strong>of</strong> origin. On 25 November 2003, the Council on Justice and Home Affairsreached an agreement 103 on a directive providing for the issue <strong>of</strong> a residence permit tonationals <strong>of</strong> third countries who are victims <strong>of</strong> human trafficking and who cooperate with thecompetent authorities 104 . The Directive provides for the issue <strong>of</strong> a residence permit for arenewable term <strong>of</strong> 6 months to persons who were the victims <strong>of</strong> action to facilitate illegalimmigration or trafficking in human beings, provided that they cooperate with the competentauthorities. Such a residence permit will allow them to stay legally on the territory <strong>of</strong> theMember State concerned during the relevant proceedings. The victims must also receiveappropriate assistance from the authorities.This development fits into the Community acquis which also will be developed and enrichedthrough the conclusion and ratification <strong>of</strong> international instruments adopted in the field <strong>of</strong>organized crime. The Convention against transnational organised crime, which was adoptedby the General Assembly <strong>of</strong> the United Nations on 15 November 2000, entered into force on29 September 2003. It was signed in Palermo on 12 December 2000 by the EuropeanCommunity, which actively participated in the negotiations leading to its adoption. TheConvention is accompanied by three Protocols, two <strong>of</strong> which – a protocol to prevent, suppressand punish trafficking in persons, especially women and children (Trafficking Protocol) and aprotocol against the smuggling <strong>of</strong> migrants by land, air and sea (Smuggling Protocol) – weresigned by the European Community on the same date as the Convention 105 . These instruments102 OJ C 260 <strong>of</strong> 29/10/2003, p. 4.103 The formal adoption <strong>of</strong> this Directive will take place after a fresh consultation <strong>of</strong> the European Parliament andafter the two outstanding Parliamentary reservations have been withdrawn.104 For the initial Commission proposal, see Proposal for a Council Directive on the short-term residence permitissued to victims <strong>of</strong> action to facilitate illegal immigration or trafficking in human beings who cooperate with thecompetent authorities, COM(2002)71 final, OJ C 126 E <strong>of</strong> 28/5/2002, p. 393.105 The Community signed the third protocol, against the illicit manufacturing <strong>of</strong> and trafficking in firearms, theirparts and components and ammunition (Firearms Protocol), which was only adopted on 31 May 2001, on 16January 2002.CFR-CDF.rep.UE.2003.en

44EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSimpose on the States or regional organisations which are parties to adopt legislation,corresponding to certain minimal standards, which should ensure that these forms <strong>of</strong>transnational crime – including their financing by money laundering, and corruption – areeffectively combated. The Commission has submitted a proposal for the ratification by theCommunity <strong>of</strong> the Convention against transnational organised crime as well as for theratification <strong>of</strong> the Trafficking and Smuggling Protocols 106 . The Smuggling Protocolessentially seeks to ensure a humane treatment for migrants and respect for their fundamentalrights. The parties to the Protocol undertake to punish the illicit trafficking <strong>of</strong> human beings,including the production, possession or acquisition <strong>of</strong> falsified travel or identity documents,and to consider as aggravating circumstances putting the life or security <strong>of</strong> migrants at risk orill-treating them. The abused migrant may not be prosecuted by the State <strong>of</strong> destination. ThisState must moreover ensure that the conditions for the resettlement in the country <strong>of</strong> originare adequate, in case <strong>of</strong> forced repatriation. It should also be emphasized that the TraffickingProtocol includes a saving clause stating that its provisions are without prejudice to theobligations <strong>of</strong> States under International law, including the 1951 Geneva Convention and the1967 Protocol relating to the status <strong>of</strong> refugees and the principle <strong>of</strong> non-refoulment containedtherein. As stated in the Explanatory Memorandum to the proposal <strong>of</strong> the Commission toratify the Protocol, although the EC is not a Party to the said Convention, it is bound by itscontent in particular through Article 63 point 1 EC.CHAPTER II: FREEDOMSArticle 6. Right to liberty and securityDetention <strong>of</strong> asylum-seekersOn 16 April 2003, the Committee <strong>of</strong> Ministers <strong>of</strong> the Member States <strong>of</strong> the Council <strong>of</strong> Europeadopted a Recommendation on measures for the detention <strong>of</strong> asylum-seekers 107 . Therecommendation concerns the detention <strong>of</strong> asylum-seekers upon their arrival on the territory,justified in the system provided for in Article 5 <strong>of</strong> the European Convention on Human Rightsfor the purpose <strong>of</strong> preventing a person from effecting an unauthorized entry into the country(Article 5 § 1, f)). Basing itself on several international texts 108 and the case law <strong>of</strong> theEuropean Court <strong>of</strong> Human Rights 109 , the Recommendation emphasizes that the aim <strong>of</strong>detention is not to penalize asylum-seekers. It emerges from Article 31 <strong>of</strong> the GenevaConvention <strong>of</strong> 28 July 1951 on the status <strong>of</strong> refugees that the asylum-seeker cannot be106 Proposal for a Council Decision on the conclusion, on behalf <strong>of</strong> the European Community, <strong>of</strong> the UnitedNations Convention Against Transnational Organised Crime, COM(2003)512 final, <strong>of</strong> 22/8/2003 ; Proposal for aCouncil Decision on the conclusion, on behalf <strong>of</strong> the European Community, <strong>of</strong> the Protocol Against the Smuggling<strong>of</strong> Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational OrganisedCrime, COM(2003)512-2 final <strong>of</strong> 22/8/2003 ; Proposal for a Council Decision on the conclusion, on behalf <strong>of</strong> theEuropean Community, <strong>of</strong> the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially WomenAnd Children, supplementing the United Nations Convention Against Transnational Organised Crime,COM(2003)512-3 final <strong>of</strong> 22/8/2003.107 Recommendation Rec(2003)5 <strong>of</strong> the Committee <strong>of</strong> Ministers to member states on measures <strong>of</strong> detention <strong>of</strong>asylum-seekers (adopted by the Committee <strong>of</strong> Ministers on 16 April 2003 at the 837 th meeting <strong>of</strong> the Ministers’Deputies).108 Article 5 <strong>of</strong> the European Convention on Human Rights constitutes the main guarantee. Other texts to be takeninto consideration are Article 31 <strong>of</strong> the above-mentioned Geneva Convention, Conclusion n° 44 (XXXVII) <strong>of</strong> theExecutive Committee <strong>of</strong> the Programme <strong>of</strong> the United Nations High Commissioner for Refugees on the detention<strong>of</strong> refugees and asylum-seekers, the Resolution on the detention <strong>of</strong> asylum-seekers <strong>of</strong> the Sub-Commission on thePromotion and Protection <strong>of</strong> Human Rights <strong>of</strong> the United Nations Commission on Human Rights, the UnitedNations Body <strong>of</strong> Principles for the Protection <strong>of</strong> All Persons under Any Form <strong>of</strong> Detention or Imprisonment,Deliberation n° 5 <strong>of</strong> the United Nations Working Group on Arbitrary Detention, and the United Nations Rules forthe Protection <strong>of</strong> Juveniles Deprived <strong>of</strong> their Liberty.109 Eur. Ct. H.R., Amuur v. France, judgment <strong>of</strong> 25 June 1996, §§ 43 et seq.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200345considered to have committed a criminal <strong>of</strong>fence on account <strong>of</strong> his unauthorized entry into theterritory, and that restrictions on his freedom <strong>of</strong> movement shall only be permitted ins<strong>of</strong>ar asthis is necessary. According to Recommendation Rec(2003)5 <strong>of</strong> the Committee <strong>of</strong> Ministers<strong>of</strong> the Council <strong>of</strong> Europe, measures <strong>of</strong> detention <strong>of</strong> asylum seekers may be resorted to only inthe following situations: when their identity, including nationality, has in case <strong>of</strong> doubt to beverified, in particular when asylum seekers have destroyed their travel or identity documentsor used fraudulent documents in order to mislead the authorities <strong>of</strong> the host state; whenelements on which the asylum claim is based have to be determined which, in the absence <strong>of</strong>detention, could not be obtained; when a decision needs to be taken on their right to enter theterritory <strong>of</strong> the state concerned, or when protection <strong>of</strong> national security and public order sorequires.Article 7 <strong>of</strong> Council Directive 2003/9/EC <strong>of</strong> 27 January 2003 laying down minimumstandards for the reception <strong>of</strong> asylum-seekers in the Member States 110 provides, “When itproves necessary, for example for legal reasons or reasons <strong>of</strong> public order, Member Statesmay confine an applicant to a particular place in accordance with their national law” (§ 3).Furthermore, asylum seekers may be obliged to reside in a specific place, either “for reasons<strong>of</strong> public interest, public order or (…) for the swift processing and effective monitoring <strong>of</strong> hisor her application” (§ 2), or “to benefit from the material reception conditions” (§ 4).Detention is therefore not justified merely on account <strong>of</strong> a person seeking asylum. Theexplicit incorporation <strong>of</strong> this principle in a general clause, a more precise formulation in aninstrument based on Article 63, first paragraph, point 1 b, EC, <strong>of</strong> the conditions which centresfor the detention <strong>of</strong> asylum seekers must satisfy – notably with regard to the situation <strong>of</strong> themost vulnerable – would be particularly welcome. Besides Recommendation Rec(2003)5 <strong>of</strong>the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe on measures <strong>of</strong> detention <strong>of</strong> asylumseekers, special attention should be given when defining those conditions to therecommendations formulated on this issue by the European Committee for the Prevention <strong>of</strong>Torture (CPT) 111 . The text <strong>of</strong> the current proposal for a directive on asylum procedures fallsshort <strong>of</strong> what is required in terms <strong>of</strong> the extent <strong>of</strong> the guarantees to be given in a uniformmanner to asylum seekers who present themselves to the Member States <strong>of</strong> the EuropeanUnion 112 .Detention <strong>of</strong> a person with a view to his surrender to another Member StateArticle 5 § 1, f, <strong>of</strong> the European Convention on Human Rights acknowledges as an admissiblereason for detention the lawful arrest <strong>of</strong> a person as part <strong>of</strong> an extradition procedure. Thisprovision justifies the deprivation <strong>of</strong> a person’s liberty by the authorities <strong>of</strong> a Member Stateexecuting an arrest warrant issued by another Member State, in accordance with theprovisions <strong>of</strong> the Framework Decision <strong>of</strong> the Council <strong>of</strong> 13 June 2002 on the European arrestwarrant and the surrender procedures between Member States 113 . The Member States mustimplement this Framework Decision by 31 December 2003 (Article 34 § 1); the mechanismwill be effective from 1 January 2004 (Article 32) 114 . Thematic Observation n°1 presented bythe EU Network <strong>of</strong> Independent Experts in Fundamental Rights already contains observations110 OJ L 31 <strong>of</strong> 6/2/2003, p. 18.111 These recommendations are summarized in the 7 th general report <strong>of</strong> the CPT (CPT/Inf (97) 10). Theserecommendations emphasize in particular the need for the asylum seeker to be able to correspond with the outsideworld, to have access to a lawyer with whom he can speak in private, an interpreter and a doctor. The asylumseeker must be given complete information about his rights, including the rights connected with the filing <strong>of</strong> anapplication for asylum.112 Draft Article 17: “1. The Member States cannot hold a person in detention simply because he is applying forasylum; 2. When an asylum seeker is held in detention, the Member States shall provide for the possibility <strong>of</strong> aswift judicial review”.113 2002/584/JHA, OJ L 190 <strong>of</strong> 18/7/2002.114 Austria can however maintain the requirement <strong>of</strong> double incrimination until 31 December 2008 at the latest(Article 33 § 1). Moreover, there are considerable delays in the adoption <strong>of</strong> the necessary transposition measuresby the Member States.CFR-CDF.rep.UE.2003.en

46EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSon the European arrest warrant 115 . Furthermore, in accordance with Article 34 § 4 <strong>of</strong> theFramework Decision <strong>of</strong> 13 June 2002 on the European arrest warrant, the Council in 2003carried out an in-depth analysis <strong>of</strong> the questions raised by the transposition <strong>of</strong> the FrameworkDecision and the practical issues connected with its application. The present report willtherefore be confined to highlighting the questions concerning the compatibility with therequirements <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights raised by the mechanism <strong>of</strong> the Europeanarrest warrant. These observations are made in order to serve in the evaluation <strong>of</strong> theimplementation <strong>of</strong> the new mechanism. This evaluation will take place before the end <strong>of</strong>2004 116 . From the specific point <strong>of</strong> view <strong>of</strong> the fundamental rights, this evaluation shouldconcern the following questions:• As has already been pointed out, an arrest by the authorities <strong>of</strong> the executingMember State <strong>of</strong> a person against whom a European arrest warrant has been issuedmust comply with all the requirements <strong>of</strong> Article 5 <strong>of</strong> the European Convention onHuman Rights 117 . In particular, any person who is arrested must be informedpromptly, in a language which he understands, <strong>of</strong> the reasons for his arrest. In thisconnection, account must be taken in the interpretation <strong>of</strong> Article 11 <strong>of</strong> theFramework Decision (rights <strong>of</strong> a requested person) <strong>of</strong> the requirements <strong>of</strong> Article 5 §2 <strong>of</strong> the European Convention on Human Rights. The information contained in thearrest warrant form transmitted to the executing State must be as complete aspossible, both as regards the description <strong>of</strong> the circumstances in which the <strong>of</strong>fencewas committed and the degree <strong>of</strong> participation in the <strong>of</strong>fence by the requested person,and as regards the legal classification <strong>of</strong> the <strong>of</strong>fence. A person being arrested inpursuance <strong>of</strong> a European arrest warrant must also be entitled to take proceedings bywhich the lawfulness <strong>of</strong> his detention is decided speedily by a court <strong>of</strong> law. To thisend, Article 14 <strong>of</strong> the Framework Decision must be interpreted in accordance withArticle 5 § 4 <strong>of</strong> the European Convention on Human Rights 118 . If the personconcerned lodges an appeal against the decision to deprive him <strong>of</strong> his liberty, hecannot be handed over to the authorities <strong>of</strong> the issuing State before the competentcourt has been able to give a judgment, otherwise the appeal would be pointless 119 . Itshould be underlined in this respect that, even if the surrender procedure is intendedto take the place <strong>of</strong> the conventional extradition procedure between the MemberStates <strong>of</strong> the European Union, this does not affect the obligations <strong>of</strong> the MemberStates with respect to the European Convention on Human Rights, as Article 1 § 3 <strong>of</strong>the Framework Decision <strong>of</strong> 13 June 2002 confirms. What should be avoided is thatthe concern <strong>of</strong> meeting the time limits set by Article 17 <strong>of</strong> the Framework Decisionfor the execution <strong>of</strong> the European arrest warrant leads the authorities <strong>of</strong> the executingMember State to limit the guarantees to which the individual is entitled under Article5 <strong>of</strong> the European Convention on Human Rights, and which the internal law <strong>of</strong> theexecuting State currently observes in principle in the conventional context <strong>of</strong>extradition. In this respect, it should be stressed that the time limits set by Article 17<strong>of</strong> the Framework Decision are not imperative 120 .115 See pages 17-19.116 Article 34 § 3 <strong>of</strong> the Framework Decision provides that the Commission submits a report to the EuropeanParliament and to the Council on the operation <strong>of</strong> the Framework Decision, at the latest by 31 December 2004.117 On the other hand, the rules <strong>of</strong> fair trial stipulated in Article 6 <strong>of</strong> the European Convention on Human Rightsare not considered applicable to a decision <strong>of</strong> extradition, which a surrender procedure must be classed as for thepurposes <strong>of</strong> the European Convention on Human Rights. See for example Eur. Ct. H.R. (4 th section), PeñafielSalgado v. Spain, judgment <strong>of</strong> 16 April 2002, application n° 65964/01.118 On the guarantees that must accompany, in the context <strong>of</strong> extradition, an appeal to habeas corpus provided forby Article 5 § 4 <strong>of</strong> the Convention, see Eur. Ct. H.R., Sanchez-Reisse v. Switzerland, judgment <strong>of</strong> 21 October1986, series A n° 07, § 51.119 See Eur. Ct. H.R. (3 rd section), Conka v. Belgium, judgment <strong>of</strong> 5 February 2002, application n° 51564/99, §§44-45.120 Although Article 15 § 2 <strong>of</strong> the Framework Decision cites “the need to observe the time limits set in Article 17”,the latter provision expresses a wish rather than a legal obligation with regard to the time limits for execution. TheCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200347• The observance <strong>of</strong> the ne bis in idem rule is translated in the Framework Decision <strong>of</strong>13 June 2002 by the incorporation <strong>of</strong> grounds for mandatory non-execution <strong>of</strong> theEuropean arrest warrant 121 , as well as by the option for the executing Member State torefuse to execute the European arrest warrant “where the judicial authorities <strong>of</strong> theexecuting Member State have decided either not to prosecute for the <strong>of</strong>fence on whichthe European arrest warrant is based or to halt proceedings, or where a final judgmenthas been passed upon the requested person in a Member State, in respect <strong>of</strong> the sameacts, which prevents further proceedings” (Article 4, 3)), or “if the executing judicialauthority is informed that the requested person has been finally judged by a third Statein respect <strong>of</strong> the same acts provided that, where there has been sentence, the sentencehas been served or is currently being served or may no longer be executed under thelaw <strong>of</strong> the sentencing country” (Article 4, 5)). In accordance with the Gözutok andBrügge judgment delivered by the Court <strong>of</strong> Justice <strong>of</strong> the European Communities on11 February 2003 122 , the transaction concluded between the prosecuting authorities <strong>of</strong>a Member State and the accused, resulting in the public proceedings beingdiscontinued, should however be considered as allowing the accused the benefit <strong>of</strong>Article 50 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. As a result, in the assumptionreferred to in Article 4, 3) <strong>of</strong> the Framework Decision, refusal to execute theEuropean arrest warrant should be considered mandatory rather than simply optional.Moreover, we may infer from Article 20 § 2 <strong>of</strong> the Statute <strong>of</strong> the InternationalCriminal Court, signed on 7 July 1998, that the European arrest warrant cannot beexecuted if it is issued against a person already convicted or acquitted by theInternational Criminal Court for <strong>of</strong>fences for which the warrant has been issued.Article 9 § 1 <strong>of</strong> the Statute <strong>of</strong> the International Criminal Tribunal for Rwanda,annexed to Resolution 955(1994) adopted by the United Nations Security Council on8 November 1994, as well as Article 10 § 1 <strong>of</strong> the Statute <strong>of</strong> the InternationalTribunal charged with prosecuting persons allegedly responsible for serious violations<strong>of</strong> international humanitarian law committed on the territory <strong>of</strong> the formerYugoslavia, annexed to Resolution 827(1993) adopted by the United Nations SecurityCouncil on 25 May 1993, should lead to the same conclusion with regard to personsalready convicted or acquitted by these international courts <strong>of</strong> law. The FrameworkDecision on the European arrest warrant was not intended to oblige the MemberStates to breach their obligations imposed on them as States parties to the Statute <strong>of</strong>the International Criminal Court 123 or as Member States <strong>of</strong> the United NationsOrganization, and therefore bound by Chapter V <strong>of</strong> the United Nations Charter.• The Framework Decision on the European arrest warrant and the surrenderprocedures between Member States provides that, if the time limits set in Article 23for the surrender <strong>of</strong> persons are not met, the person concerned, if he has been arrested,must necessarily be released (Article 23 § 5). Bearing in mind also the time limitsstipulated in Article 17 <strong>of</strong> the Framework Decision for the decision to execute thewarrant issued by another Member State, this is in agreement with the requirement <strong>of</strong>the European Convention on Human Rights. Article 5 § 3 <strong>of</strong> the Convention onlyterm used in Articles 17 §§ 2 and 3 is “should” and not “shall”. Besides, it is up to the authorities <strong>of</strong> the issuingMember State to supply the executing judicial authority, upon request, with all the necessary information to enablethe latter to decide whether or not it can execute the European arrest warrant. Delays incurred by the authorities <strong>of</strong>the issuing Member State may justify an exceeding <strong>of</strong> the time limits set by Article 17 <strong>of</strong> the Framework Decision,without the authorities <strong>of</strong> the executing Member State being held responsible (see Article 15 § 2).121 Article 3 § 2 <strong>of</strong> the Framework Decision provides that the judicial authority <strong>of</strong> the Member State <strong>of</strong> executionshall refuse to execute the European arrest warrant “if the executing judicial authority is informed that therequested person has been finally judged by a Member State in respect <strong>of</strong> the same acts provided that, where therehas been sentence, the sentence has been served or is currently being served or may no longer be executed underthe law <strong>of</strong> the sentencing Member State”.122 ECJ, 11 February 2003, Gözutok and Brügge, joined cases C-197/01 and C-385/01, not yet published.123 In the specific hypothesis <strong>of</strong> several warrants concerning the same person, see Article 16 § 4 <strong>of</strong> the FrameworkDecision on the European arrest warrant.CFR-CDF.rep.UE.2003.en

48EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSprovides for a reasonable term <strong>of</strong> detention in the hypothesis <strong>of</strong> the preventivedetention <strong>of</strong> a person suspected <strong>of</strong> committing an <strong>of</strong>fence 124 . The Court also assertedthat, in the interpretation <strong>of</strong> detention by virtue <strong>of</strong> Article 5 § 1 f) as a restriction <strong>of</strong>the individual’s fundamental right to freedom, detention should be strictly interpreted.Therefore, where detention is motivated by the objective <strong>of</strong> ensuring the surrender <strong>of</strong>a person against whom a European arrest warrant has been issued, it should beconsidered that “the detention <strong>of</strong> a person with a view to [his surrender] can only bejustified from the point <strong>of</strong> view <strong>of</strong> Article 5 § 1 ins<strong>of</strong>ar as such detention is connectedwith the procedure [<strong>of</strong> surrender]” 125 ; and if the procedure is not conducted with duecare, the detention ceases to be justified with regard to the end – surrender <strong>of</strong> theperson in pursuance <strong>of</strong> the European arrest warrant – that justifies it. In exceptionalcircumstances, namely if the authorities <strong>of</strong> the issuing State fail to supply theinformation duly requested, there will be a longer or shorter time between the arrest<strong>of</strong> the person and the decision to execute the European arrest warrant preceding thesurrender. In such case, the necessity and the term <strong>of</strong> detention should be reviewed. IfArticle 5 § 1 <strong>of</strong> the Convention is strictly interpreted, detention would no longer beconsidered justified if the risk <strong>of</strong> escape can be avoided by means that are lessrestrictive <strong>of</strong> a person’s liberty, or if, unless there is a real chance that the personconcerned will be surrendered within a reasonable time limit, it no longer correspondsto the objective <strong>of</strong> Article 5 § 1 f) and can therefore no longer be justified from theviewpoint <strong>of</strong> that provision, or if the detention appears to be excessively longcompared to what seems reasonably justified by the procedures necessary for thesurrender.• It can be inferred from Article 1 § 3 <strong>of</strong> the Framework Decision <strong>of</strong> 13 June 2002 onthe European arrest warrant that the surrender <strong>of</strong> a person cannot take place if thisperson runs a serious and proven risk <strong>of</strong> being subjected to inhuman or degradingtreatment or punishment in the issuing State 126 . Although the European Court <strong>of</strong>Human Rights has not yet had the opportunity to deduce this specific consequence,this prohibition must mean that surrendering a person to the authorities <strong>of</strong> a MemberState where prisoners are subjected to conditions <strong>of</strong> detention that fall short <strong>of</strong> thestandards laid down in Article 3 <strong>of</strong> the European Convention on Human Rights isequally prohibited. Bearing in mind the reports <strong>of</strong> violation <strong>of</strong> Article 3 <strong>of</strong> theConvention in connection with the conditions <strong>of</strong> detention in Member States <strong>of</strong> theEuropean Union 127 and the <strong>of</strong>ten severe assessments made by the EuropeanCommittee for the Prevention <strong>of</strong> Torture <strong>of</strong> the situation <strong>of</strong> penitentiaryestablishments in those States, such a situation cannot be considered purelyhypothetical. At the same time, since all States participating in the European arrestwarrant are also parties to the European Convention on Human Rights, any personwho has been surrendered can always appeal to the European Court <strong>of</strong> Human Rightsif he was detained in conditions that are contrary to the standards <strong>of</strong> Article 3 <strong>of</strong> theConvention 128 . In order to clarify the obligations <strong>of</strong> the Member States in this respect,124 Article 5 § 3 <strong>of</strong> the Convention only refers to the hypothesis <strong>of</strong> detention referred to in Article 5 § 1, c): see Eur.Ct. H.R., De Wilde, Ooms and Versyp v. Belgium, judgment <strong>of</strong> 18 June 1971, series A n o 12, p. 39, § 71. For recentconfirmation <strong>of</strong> the position <strong>of</strong> the Court, see Raf v. Spain, judgment <strong>of</strong> 17 June 2003, application n o 53652/00, §§62-66.125 See, mutatis mutandis, European Commission <strong>of</strong> Human Rights, application no. 6871/75, Caprino v. UnitedKingdom, decision <strong>of</strong> 3 March 1978, Ann.Conv., 21, p. 285, here pp. 295-296 (also D.R., 12, p. 14).126 See also the Preamble, recitals 12 and 13. This prohibition can at any rate be inferred from Article 3 <strong>of</strong> theEuropean Convention on Human Rights, as interpreted by the European Court <strong>of</strong> Human Rights, and from Article19 § 2 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> the European Union, where the term “extradition” should beinterpreted as “surrender” for the purposes <strong>of</strong> the operation <strong>of</strong> the mechanism <strong>of</strong> the European arrest warrant.127 See for example during the period under scrutiny, Eur. Ct. H.R. (1 st section), Van der Ven v. Netherlands andLorsé v. Netherlands, judgments <strong>of</strong> 4 February 2003 (detention in high-security units).128 The Court has acknowledged that the possibility <strong>of</strong> appealing to an international court <strong>of</strong> law constitutes arelevant factor in assessing the extent <strong>of</strong> the State’s obligation not to expel persons to a State where they risk ill-CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200349it would be advisable to examine the expediency <strong>of</strong> including in Article 5 <strong>of</strong> theFramework Decision a supplementary condition among the conditions under whichthe law <strong>of</strong> the executing Member States could 129 make the surrender <strong>of</strong> a personconditional. Such an amendment is designed to provide for the situation where, in theevent that the European Court <strong>of</strong> Human Rights or the European Committee for thePrevention <strong>of</strong> Torture 130 finds that Article 3 <strong>of</strong> the European Convention on HumanRights is infringed, given the general conditions prevailing in a particular penitentiaryestablishment, the issuing State has not made any improvements to the situation.The monitoring <strong>of</strong> the respect by the Member States <strong>of</strong> the prohibition which is imposed byArticle 3 <strong>of</strong> the European Convention on Human Rights with respect to the conditions <strong>of</strong>detention <strong>of</strong> persons arrested under the suspicion <strong>of</strong> having committed criminal <strong>of</strong>fences orafter conviction by a competent court is therefore a condition sine qua non <strong>of</strong> the mutualrecognition <strong>of</strong> judicial decisions in criminal matters. An initiative <strong>of</strong> the European Union infavour <strong>of</strong> the definition <strong>of</strong> minimal norms applicable throughout the Member States wouldtherefore be justified under the principle <strong>of</strong> subsidiarity. Article 31 EU states that commonaction on judicial cooperation in criminal matters shall include (a) facilitating and acceleratingcooperation between competent ministries and judicial or equivalent authorities <strong>of</strong> theMember States in relation to proceedings and the enforcement <strong>of</strong> decisions; [..](c) ensuringcompatibility in rules applicable in the Member States, as may be necessary to improve suchco-operation”. As clearly illustrated by the Green Paper on Procedural Safeguards forSuspects and Defendants in Criminal Proceedings throughout the European Union 131 , theUnion may act to detail further, for the Member States, the requirements which follow fromArticle 3 <strong>of</strong> the Convention. A first step towards such clarification <strong>of</strong> the requirementsimposed on the Member States could consist in identifying the procedural guarantees whichlimit the risk <strong>of</strong> ill-treatment within penitentiary establishments. It would be useful to build inthat respect <strong>of</strong> the standards set by the European Committee for the Prevention or Torture andInhuman or Degrading Treatment or Punishment (CPT), as in its 2 nd General Report <strong>of</strong>Activities 132 :53. Prison staff will on occasion have to use force to control violent prisoners and,exceptionally, may even need to resort to instruments <strong>of</strong> physical restraint. These areclearly high-risk situations ins<strong>of</strong>ar as the possible ill-treatment <strong>of</strong> prisoners isconcerned, and as such call for specific safeguards.A prisoner against whom any means <strong>of</strong> force have been used should have the right tobe immediately examined and, if necessary, treated by a medical doctor. Thisexamination should be conducted out <strong>of</strong> the hearing and preferably out <strong>of</strong> the sight <strong>of</strong>non-medical staff, and the results <strong>of</strong> the examination (including any relevant statementstreatment: see for example Eur. Ct. H.R. (4 th section), Peñafiel Salgado v. Spain, decision <strong>of</strong> 16 April 2002,application n° 65964/01.129 In actual fact, this is not simply an option for the executing State, like the other conditions enumerated in thisprovision: it is an obligation. The insertion <strong>of</strong> a supplementary paragraph in Article 5 <strong>of</strong> the Framework Decisionis therefore advisable, stipulating, “The execution <strong>of</strong> the European arrest warrant by the executing judiciaryauthority shall be conditional upon the person surrendered not being detained in conditions that are contrary toArticle 3 <strong>of</strong> the European Convention on Human Rights. The executing judiciary authority may refuse to executethe European arrest warrant if this condition is not satisfied”.130 The European Court <strong>of</strong> Human Rights reports a violation <strong>of</strong> Article 3 <strong>of</strong> the Convention there where theauthorities have not implemented the urgent recommendations made by the CPT in the context <strong>of</strong> the periodicalvisits which the latter is charged with making under the European Convention for the Prevention <strong>of</strong> Torture andInhuman or Degrading Treatment or Punishment <strong>of</strong> 26 November 1987 (E.T.S. n°126). See Eur. Ct. H.R., A.B. v.Netherlands, judgment <strong>of</strong> 29 January 2002, application n° 37328/97.131 COM(2003)75 final, <strong>of</strong> 19/2/2003. This important contrbution to the debate concerning the added value theEuropean Union can bring to the protection <strong>of</strong> fundamental rights in Europe is discussed hereafter, under Article48 <strong>of</strong> the Charter.132 Extract from the 2nd General Report, CPT/Inf (92) 3, para. 53 ff. The extracts are also reproduced in The CPTstandards. « Substantive » sections <strong>of</strong> CPT’s General Reports, CPT/Inf/E (2003) 1. We have identified thepassages emphasized in bold characters.CFR-CDF.rep.UE.2003.en

50EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSby the prisoner and the doctor's conclusions) should be formally recorded and madeavailable to the prisoner. In those rare cases when resort to instruments <strong>of</strong> physicalrestraint is required, the prisoner concerned should be kept under constant and adequatesupervision. Further, instruments <strong>of</strong> restraint should be removed at the earliest possibleopportunity; they should never be applied, or their application prolonged, as apunishment. Finally, a record should be kept <strong>of</strong> every instance <strong>of</strong> the use <strong>of</strong> forceagainst prisoners.54. Effective grievance and inspection procedures are fundamental safeguardsagainst ill-treatment in prisons. Prisoners should have avenues <strong>of</strong> complaint open tothem both within and outside the context <strong>of</strong> the prison system, including the possibilityto have confidential access to an appropriate authority. The CPT attaches particularimportance to regular visits to each prison establishment by an <strong>independent</strong> body (eg. aBoard <strong>of</strong> visitors or supervisory judge) possessing powers to hear (and if necessary takeaction upon) complaints from prisoners and to inspect the establishment's premises.Such bodies can inter alia play an important role in bridging differences that arisebetween prison management and a given prisoner or prisoners in general.55. It is also in the interests <strong>of</strong> both prisoners and prison staff that clear disciplinaryprocedures be both formally established and applied in practice; any grey zones in thisarea involve the risk <strong>of</strong> seeing un<strong>of</strong>ficial (and uncontrolled) systems developing.Disciplinary procedures should provide prisoners with a right to be heard on the subject<strong>of</strong> the <strong>of</strong>fences it is alleged they have committed, and to appeal to a higher authorityagainst any sanctions imposed.Other procedures <strong>of</strong>ten exist, alongside the formal disciplinary procedure, under whicha prisoner may be involuntarily separated from other inmates for discipline-related/security reasons (eg. in the interests <strong>of</strong> "good order" within an establishment). Theseprocedures should also be accompanied by effective safeguards. [The prisoner shouldbe informed in writing <strong>of</strong> the reasons for the measure taken against him (it beingunderstood that the reasonsgiven might not include details which security requirements justify withholding fromthe prisoner)], be given an opportunity to present his views on the matter, and be able tocontest the measure before an appropriate authority.56. The CPT pays particular attention to prisoners held, for whatever reason (fordisciplinary purposes; as a result <strong>of</strong> their "dangerousness" or their "troublesome"behaviour; in the interests <strong>of</strong> a criminal investigation; at their own request), underconditions akin to solitary confinement. The principle <strong>of</strong> proportionality requires that abalance be struck between the requirements <strong>of</strong> the case and the application <strong>of</strong> a solitaryconfinement-type regime, which is a step that can have very harmful consequences forthe person concerned. Solitary confinement can, in certain circumstances, amount toinhuman and degrading treatment; in any event, all forms <strong>of</strong> solitary confinementshould be as short as possible. In the event <strong>of</strong> such a regime being imposed or appliedon request, an essential safeguard is that whenever the prisoner concerned, or a prison<strong>of</strong>ficer on the prisoner's behalf, requests a medical doctor, such a doctor should becalled without delay with a view to carrying out a medical examination <strong>of</strong> theprisoner. The results <strong>of</strong> this examination, including an account <strong>of</strong> the prisoner'sphysical and mental condition as well as, if need be, the foreseeable consequences <strong>of</strong>continued isolation, should be set out in a written statement to be forwarded to thecompetent authorities.57. The transfer <strong>of</strong> troublesome prisoners is another practice <strong>of</strong> interest to the CPT.Certain prisoners are extremely difficult to handle, and the transfer <strong>of</strong> such a prisoner toanother establishment can sometimes prove necessary. However, the continuousmoving <strong>of</strong> a prisoner from one establishment to another can have very harmful effectson his psychological and physical well being. Moreover, a prisoner in such a positionwill have difficulty in maintaining appropriate contacts with his family and lawyer. Theoverall effect on the prisoner <strong>of</strong> successive transfers could under certain circumstancesamount to inhuman and degrading treatment.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200351An initiative <strong>of</strong> the European Union, based on Article 31 (a) and (e) EU, with a view <strong>of</strong>clarifying these norms – which in any case are already obligatory for the Member States,which are all Parties to the European Convention on Human Rights as well as to the EuropeanConvention on the Prevention <strong>of</strong> Torture and Inhuman or Degrading Treatment or Punishment– would facilitate a more objective use <strong>of</strong> the safeguard clause <strong>of</strong> Article 1(3) <strong>of</strong> theFramework Decision on the European Arrest Warrant or, alternatively, if Article 5 <strong>of</strong> theFramework Decision were to be revised to authorise the executing Member State to refuse thesurrender <strong>of</strong> a person who runs the risk <strong>of</strong> being detained in conditions contrary to Article 3ECHR, to identify more precisely the conditions under which such clause may be relied upon.• Article 13 § 2 <strong>of</strong> the Framework Decision <strong>of</strong> 13 June 2002 provides that, if a personis able to consent to his surrender, each Member State “shall adopt the measuresnecessary to ensure that [this] consent [is established] in such a way as to show thatthe person concerned has expressed [it] voluntarily and in full awareness <strong>of</strong> theconsequences. To that end, the requested person shall have the right to legal counsel”.It would be useful to compare the measures taken by the Member States in order toguarantee the validity <strong>of</strong> such consent and thus to extract good practices that can bedisseminated. There where the freedom <strong>of</strong> the individual is at stake, any act <strong>of</strong>renunciation should be appraised in a particularly rigorous way 133 .Article 7. Respect for private and family lifeProtection <strong>of</strong> foreign nationals from expulsionSince 1991, the European Court <strong>of</strong> Human Rights safeguards foreign nationals againstexpulsion measures taken against them that are liable to affect their family life or, since 1996,their private life. This case law has been further consolidated during the course <strong>of</strong> the periodunder scrutiny. In the Benhebba case 134 , the Court was faced with the expulsion andprohibition <strong>of</strong> entry into French territory <strong>of</strong> a second-generation immigrant, who was acriminal <strong>of</strong>fender. It applied the criteria derived from its judgment in the Boultif case 135 , andasserted that these criteria had to constitute the blueprint for national authorities who arepreparing to take an expulsion measure against a foreign national. The Court considers thatthere exist “guiding principles that must guide the State in its judgment when taking expulsionmeasures against an adult foreign national arriving on its territory”. The following must betaken into account 136 : the nature and seriousness <strong>of</strong> the <strong>of</strong>fence committed by the applicant;the duration <strong>of</strong> the applicant’s stay in the country from which he is going to be expelled; thetime which has elapsed between the committing <strong>of</strong> the <strong>of</strong>fence and the challenged measure, aswell as the applicant’s conduct during that period; the nationalities <strong>of</strong> the various personsconcerned; the applicant’s family situation, such as the length <strong>of</strong> the marriage; other factorsrevealing whether the couple lead a real and genuine family life; whether the spouse knewabout the <strong>of</strong>fence at the time when he or she entered into a family relationship; whether thereare children in the marriage and, if so, their age; the seriousness <strong>of</strong> the difficulties which thespouse would be likely to encounter in the applicant’s country <strong>of</strong> origin (judgment, § 32). Itadds, “the same criteria should be used for second-generation immigrants or foreign nationals133 See Eur. Ct. H.R., De Wilde, Ooms and Versyp v. Belgium, judgment <strong>of</strong> 18 June 1971, Series A n°12, § 65(where not the consent to surrender or expulsion was at stake, but the renunciation to the right to freedom as such).134 Eur. Ct. H.R. (3 rd section), Benhebba v. France, judgment <strong>of</strong> 19 June 2003, application n° 53441/99.135 Eur. Ct. H.R., Boultif v. Switzerland, judgment <strong>of</strong> 11 July 2002, application n o 54273/00.136 See also on the limits to the expulsion <strong>of</strong> foreign nationals having developed family or other ties on the territory<strong>of</strong> the host country, Recommendation Rec(2000) 15 adopted on 13 September 2000 by the Committee <strong>of</strong> Ministers<strong>of</strong> the Council <strong>of</strong> Europe concerning the security <strong>of</strong> residence <strong>of</strong> long-term migrants. This Recommendation iscommented on in the Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and Its Member Statesin 2002, pp. 85-86. The Commission <strong>of</strong> the European Communities rightly based itself on this Recommendation inits Proposal for a Council Directive concerning the status <strong>of</strong> third-country nationals who are long-term residents(COM(2001)127 final - CNS 2001/0074, OJ C 240 E , 28/8/2001, p. 79) (para. 2.3.).CFR-CDF.rep.UE.2003.en

52EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSwho arrived in their early youth, in the event that they have started a family in their hostcountry. If this is not the case, the Court will only pay regard to the first three criteria. Tothese different criteria, however, will be added the special ties which these immigrants havedeveloped with the host country where they have spent most <strong>of</strong> their lives”. On these grounds,it acknowledges the legitimacy <strong>of</strong> the national expulsion measure, giving rise to theconcurrent opinion <strong>of</strong> the French court which on this occasion expressed its “firm opposition”to the system <strong>of</strong> “double punishment” affecting second-generation immigrants convicted <strong>of</strong>criminal <strong>of</strong>fences 137 . Following the same line <strong>of</strong> reasoning, the Court arrived at the oppositeconclusion in the Mokrani case 138 , this time on account <strong>of</strong> the “intensity <strong>of</strong> the personal ties”<strong>of</strong> the person concerned with France and the consequences which his expulsion would haveon his marital life. On the other hand, it concluded that Article 8 <strong>of</strong> the European Conventionon Human Rights had been violated in the Ylmaz 139 and Yakupovic 140 cases. In the Ylmaz case,the Court considered that the unlimited prohibition to enter the territory was disproportionatein the given circumstances; in the Yakupovic case, the youth <strong>of</strong> the applicant resulted in anidentical judgment.The initial proposal for a Directive on the right <strong>of</strong> citizens <strong>of</strong> the Union and their familymembers to move and reside freely within the territory <strong>of</strong> the Member States 141 provides in itsArticle 26 § 2, “a host Member State may not take an expulsion decision on grounds <strong>of</strong> publicpolicy or public security against EU citizens or their family members, irrespective <strong>of</strong>nationality, who have the right <strong>of</strong> permanent residence on its territory or against familymembers who are minors”. This provision introduces absolute protection against expulsionfor Union citizens and family members with permanent residence status and for familymembers who are minors. In its commentary, the Commission bases itself on the case law <strong>of</strong>the European Court <strong>of</strong> Human Rights: “In the case <strong>of</strong> minors, this protection is dictated byhumanitarian considerations. People with permanent residence status are assumed to havedeveloped very close ties integrating them into the host Member State, which would makeexpulsion unjustifiable. Expulsion orders have a very serious impact on the person concerned,destroying the emotional and family ties they have developed in the host country” 142 .This interpretation did not prevail, however. The political agreement that emerged from theCouncil on 23 September 2003 only grants Union citizens definite protection from expulsionfor “imperative reasons <strong>of</strong> public safety according to national law”. Although this outcome isnot formally incompatible with the standards <strong>of</strong> the Council <strong>of</strong> Europe 143 , it does notcontribute to the legal certainty <strong>of</strong> States or <strong>of</strong> foreign nationals against whom expulsionmeasures have been taken, since if long-term or underage immigrants are expelled for reasons<strong>of</strong> public order, the consequences which the execution <strong>of</strong> such measures may have on theprivate and/or family life <strong>of</strong> the persons concerned will have to be carefully examined. On theother hand, the difference in treatment between nationals <strong>of</strong> Member States and third countrynationals may be considered discriminatory in the light <strong>of</strong> a case law <strong>of</strong> the European Court <strong>of</strong>Human Rights that is increasingly critical <strong>of</strong> any difference in treatment that is based solelyon the formal criterion <strong>of</strong> nationality 144 .137 For a comparative law approach in the European Union, see: La double peine, Documents de travail du sénat,Série de législation comparée, February 2003, LC 117.138 Eur. Ct. H.R., Mokrani v. France, judgment <strong>of</strong> 24 June 2003, application n°52206/99.139 Eur. Ct. H.R., Ylmaz v. Germany, judgment <strong>of</strong> 17 July 2003, application n°52853/99.140 Eur. Ct. H.R., Jakupovic v. Austria, judgment <strong>of</strong> 6 February 2003, application n°36757/97.141 COM (2001) 257 <strong>of</strong> 23 May 2001.142 Id., p. 23.143 See principle 4, d), <strong>of</strong> the aforementioned Recommendation Rec(2000)15 on the security <strong>of</strong> residence <strong>of</strong> longtermmigrants.144 Eur. Ct. H.R. (2 nd section), Koua Poirrez v. France, judgment <strong>of</strong> 30 September 2003, application n°40892/98, §46 (“Only very serious considerations may lead the Court to consider a difference in treatment based solely onnationality compatible with the Convention”).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200353The case law <strong>of</strong> the European Court <strong>of</strong> Human Rights concerning the prohibition <strong>of</strong> expulsion<strong>of</strong> foreign nationals where such expulsion would constitute a disproportionate infringement <strong>of</strong>their private and/or family life also guided the Court <strong>of</strong> Justice <strong>of</strong> the European Communitiesin a judgment concerning the Moroccan spouse <strong>of</strong> a British national who was expelled fromthe United Kingdom and wished to return after a detour through another Member State inorder to benefit from the judgment in the Singh 145 case. The Court pointed out on thisoccasion, “where the marriage is genuine and where, on the return <strong>of</strong> the citizen <strong>of</strong> the Unionto the Member State <strong>of</strong> which he is a national, his spouse, who is a national <strong>of</strong> a non-MemberState and with whom he was living in the Member State which he is leaving, is not lawfullyresident on the territory <strong>of</strong> a Member State, regard must be had to respect for family life underArticle 8 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights and FundamentalFreedoms […].Even though the Convention does not as such guarantee the right <strong>of</strong> an alien toenter or to reside in a particular country, the removal <strong>of</strong> a person from a country where closemembers <strong>of</strong> his family are living may amount to an infringement <strong>of</strong> the right to respect forfamily life as guaranteed by Article 8(1) <strong>of</strong> the Convention […]” 146 .The right to respect for family life also led the Court <strong>of</strong> Justice <strong>of</strong> the European Communitiesto assert the right <strong>of</strong> residence for family members <strong>of</strong> a worker who has died. The Courtpointed out, “the importance <strong>of</strong> ensuring the protection <strong>of</strong> the family life <strong>of</strong> nationals <strong>of</strong> theMember States and the right <strong>of</strong> residence <strong>of</strong> the members <strong>of</strong> their family has been recognisedby the Community legislature (see, to that effect, particularly, Case C-60/00 Carpenter [2002]ECR I-6279, paragraph 38)…”, and “It is in the interest <strong>of</strong> the worker and his family that,should that worker die prematurely, his family members should, as a rule, be entitled to residein the territory <strong>of</strong> the host Member State” 147 .Directive 2003/86/EC on the right to family r<strong>eu</strong>nificationThe Directive on the right to family r<strong>eu</strong>nification, under negotiation since 1999 148 , wasadopted by the Council on 22 September 2003 149 . The purpose <strong>of</strong> the Directive is to determinethe conditions for the exercise <strong>of</strong> the right to family r<strong>eu</strong>nification by third country nationalsresiding lawfully in the territory <strong>of</strong> the Member States (article 1). Directive 2003/86/EC inprinciple guarantees a right to family r<strong>eu</strong>nification to the members <strong>of</strong> the « nuclear family »,i.e., the spouse <strong>of</strong> the sponsor, the minor children <strong>of</strong> the sponsor and/or his/her spouse,provided they are below the age <strong>of</strong> the majority set by the law <strong>of</strong> the Member State concernedand are not married. The Member States are not obliged to recognize unmarried partners aright to family r<strong>eu</strong>nification, even when they are bound by a registered partnership, and evenin situations where the right to family r<strong>eu</strong>nification is recognized to de facto stablerelationships under the national law <strong>of</strong> the State concerned, with respect to its own nationalsor, per extension, with respect to EU. It should nevertheless be emphasized that the MemberStates are obliged to respect the fundamental rights when transposing the Directive. A Statethat chooses to recognize a right to family r<strong>eu</strong>nification for third country nationals living in adurable relationship with the sponsor, yet denying this benefit to same-sex couples, would beguilty <strong>of</strong> discrimination directly based on sexual orientation, contrary to Article 21 <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights 150 .145 See ECJ, 7 July 1992, Singh, C-370/90, ECR p. I-4265 (admission to the United Kingdom <strong>of</strong> a person whowished to enter as spouse <strong>of</strong> a United Kingdom national, returning or wishing to return to the United Kingdomafter having exercised the rights he derived from Community law as a worker in another Member State).146 ECJ, 23 September 2003, Akrich, C 109/01, paragraphs 58 and 59.147 ECJ, 9 January 2003, N. Givane, C-257/00, paragraphs 47-48.148 For the initial Commission proposal, see COM(1999) 638 final <strong>of</strong> 1/12/1999, presented on 11/1/2000, OJ C 116E <strong>of</strong> 26/4/2000, p. 66. For the amended proposal, see COM(2000) 624 final <strong>of</strong> 10/10/2000, OJ C 62 E <strong>of</strong>27/2/2001, p. 99. A second amended version was presented on 30/4/2002 (COM(2002)225 final, OJ C 203 E <strong>of</strong>27/8/2002, p. 136.149 Directive 2003/86/EC <strong>of</strong> 22 September 2003 on the right to family r<strong>eu</strong>nification, OJ L 251 <strong>of</strong> 3/10/2003, p. 12.150 See, mutatis mutandis, Opinion n° 1-2003 <strong>of</strong> 10 April 2003 delivered by the EU Network <strong>of</strong> IndependentExperts on Fundamental Rights in response to a request from the European Commission.CFR-CDF.rep.UE.2003.en

54EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSIt is safe to consider that the main criticism that can be levelled at the Directive is that it doesnot make a sufficiently clear distinction between the situation where the sponsor - the personwho seeks to be r<strong>eu</strong>nited on the territory <strong>of</strong> a Member State with members <strong>of</strong> his family, orwith whom the latter seek to be r<strong>eu</strong>nited - is living on the territory <strong>of</strong> the host State without itbeing possible for his family life to be continued elsewhere, and the situation where, on thecontrary, such family life could be continued elsewhere. In the first situation, familyr<strong>eu</strong>nification is a human right, derived from the right to respect for family life guaranteed byArticle 8 <strong>of</strong> the European Convention on Human Rights; in the second situation, it is a favourfrom the State, which in principle is not obliged to grant it, even though, by granting it, itcontributes to the flourishing <strong>of</strong> family life 151 . But the Directive as a whole - especially if oneconsiders the exceptions that it allows the States to use - approaches the right to familyr<strong>eu</strong>nification which it wishes to harmonize as if it is still simply a favour, which is not anentirely justifiable approach. For example, Article 8, paragraph 2, <strong>of</strong> the Directive providesthat where the legislation <strong>of</strong> a Member State relating to family r<strong>eu</strong>nification in force on thedate <strong>of</strong> adoption <strong>of</strong> the Directive takes into account its reception capacity, the Member Statemay provide for a waiting period <strong>of</strong> no more than three years between submission <strong>of</strong> theapplication for family r<strong>eu</strong>nification and the issue <strong>of</strong> a residence permit to the family members.Such a waiting period is clearly disproportionate in those cases where, in the absence <strong>of</strong> thepossibility for family life to be continued elsewhere, the absence <strong>of</strong> family r<strong>eu</strong>nificationconstitutes an infringement <strong>of</strong> the right to respect for family life to continue elsewhere.The latter example concerns an option for the Member States to delay the granting <strong>of</strong> the rightto family r<strong>eu</strong>nification without it being an obligation. From the legal point <strong>of</strong> view, thequestion that arises is <strong>of</strong> knowing whether Directive 2003/86/EC is liable to be criticized forinfringing the fundamental rights that are recognized in the Community’s legal order, notablyas they are brought together in the Charter <strong>of</strong> Fundamental Rights, by not enjoining on theMember States observance <strong>of</strong> wider-ranging obligations in the area <strong>of</strong> the right to familyr<strong>eu</strong>nification. According to this rapport<strong>eu</strong>r, this is the most important question <strong>of</strong> principlewhich the European Court <strong>of</strong> Justice will have to answer, in examining the action forannulment <strong>of</strong> the directive lodged with the Court by the European Parliament, on the basis <strong>of</strong>the new powers recognized to the Parliament since the entry into force <strong>of</strong> the Nice Treaty on 1February 2003, under the revised Article 230 EC. Indeed, the directive on familyr<strong>eu</strong>nification does not affect « the possibility for the Member States to adopt or maintain morefavourable provisions » (Article 3(5)). Therefore, the most disputable provisions <strong>of</strong> theDirective with regard to the requirements <strong>of</strong> the fundamental rights cannot in principle lead toan infringement <strong>of</strong> those rights if the Member States effectively observe those fundamentalrights in the transposition <strong>of</strong> the Directive. Thus the Directive does not oblige the MemberStates to infringe any fundamental rights which they have undertaken to observe in theinternational legal order or which are obligations in the legal order <strong>of</strong> the European Union.For example:• Article 14(2) <strong>of</strong> directive 2003/86 says that « Member States may decide accordingto national law the conditions under which family members shall exercise anemployed or self-employed activity. These conditions shall set a time limit whichshall in no case exceed 12 months, during which Member States may examine thesituation <strong>of</strong> their labour market before authorising family members to exercise anemployed or self-employed activity. ». If figures could be produced to illustrate that,in the large majority <strong>of</strong> cases, the family members concerned by this clause arewomen - wives joining their husbands -, Article 14 § 2 would seem to create a form <strong>of</strong>151 This distinction, however, is obscured when the sponsor has established such ties in the host country that hecould not leave this country where he is residing without this resulting in a significant upheaval <strong>of</strong> his private andfamily life. Even if his family life could be continued elsewhere, the cost will be such that, in this case, familyr<strong>eu</strong>nification should be considered a human right. See for example Eur. Ct. H.R., Sen v. Netherlands, judgment <strong>of</strong>21 December 2001, application n° 31465/96 (commented on in the Report on the Situation <strong>of</strong> Fundamental Rightsin the European Union and its Member States in 2002, p. 88).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200355indirect discrimination against women, contrary to the general principles <strong>of</strong>Community law and Article 23 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. Once again,such an infringement would derive from a Member State’s choice to apply this safetyclause; it is not enjoined by Directive 2003/86/EC itself.• Since the Commission felt that “the Member States should retain some room formano<strong>eu</strong>vre to examine whether the child meets the conditions for integration beyonda certain age, provided their legislation provided for this at the time <strong>of</strong> adoption <strong>of</strong> theDirective and a case-by-case approach is followed” 152 , Article 4 § 1 <strong>of</strong> Directive2003/86/CE provides, « where a child is aged over 12 years and arrives <strong>independent</strong>lyfrom the rest <strong>of</strong> his/her family, the Member State may, before authorising entry andresidence under this Directive, verify whether he or she meets a condition forintegration provided for by its existing legislation on the date <strong>of</strong> implementation <strong>of</strong>this Directive »There where family life cannot continue elsewhere, refusal <strong>of</strong> family r<strong>eu</strong>nification constitutesan infringement <strong>of</strong> the right to respect for family life as recognized by Article 8 <strong>of</strong> theEuropean Convention on Human Rights. Such an infringement does not appear to bejustifiable by one <strong>of</strong> the admissible grounds for restriction enumerated in Article 8 § 2 <strong>of</strong> theConvention. Moreover, it may be paradoxical to want to verify this “integration” whereas, bydefinition, a minor who requests the right to family r<strong>eu</strong>nification, if he wishes to be“integrated”, has not had the opportunity to develop ties with the host country, and his tieswith his family may have weakened as a result <strong>of</strong> the separation. This provision is thereforeparticularly problematical from the viewpoint <strong>of</strong> the requirements <strong>of</strong> the fundamental rights.Here too, however, the difficulty lies not in what the Directive imposes on the Member Statesas an obligation, but in the margin <strong>of</strong> appreciation that it allows the States.• Directive 2003/86/EC provides, with a view to combating the phenomenon <strong>of</strong> forcedmarriages, Member States are authorized to set a minimum age for spouses who wishto join their husbands/wives, although this limit must not be higher than 21 years(Article 4 § 5). This restriction on the right to family r<strong>eu</strong>nification seems justifiablefor legitimate reasons <strong>of</strong> public order, and by the concern to protect the rights <strong>of</strong> otherpeople 153 . The Directive also provides that States may refuse the right to familyr<strong>eu</strong>nification or refuse to renew the spouse’s residence permit if it turns out that themarriage is a marriage <strong>of</strong> convenience for the sole purpose <strong>of</strong> securing familyr<strong>eu</strong>nification (Article 16, §§ 2 and 4) 154 . Particular care is required to ensure that anyinvestigations intended to detect fraud do not give rise to disproportionateinfringements <strong>of</strong> the right to respect for the private and family life <strong>of</strong> the personsconcerned 155 . Here, too, it is in the implementation <strong>of</strong> the Directive that the risk <strong>of</strong>infringements <strong>of</strong> fundamental rights by the Member States arises.• Directive 2003/86/EC provides that Member States may refuse to renew theresidence permit <strong>of</strong> the spouse or <strong>of</strong> other family members who have been admittedfor the purpose <strong>of</strong> family r<strong>eu</strong>nification where it is found that the sponsor and his/herfamily member(s) no longer live in a real marital or family relationship (Article 16 §152 Explanatory memorandum <strong>of</strong> the second amended proposal for a Directive (COM(2002)225 final).153 On the phenomenon <strong>of</strong> forced marriages, see the Report on the Situation <strong>of</strong> Fundamental Rights in theEuropean Union and its Member States in 2002, pp. 107-108.154 In a different context, the Court <strong>of</strong> Justice <strong>of</strong> the European Communities considered in its judgment in theAkrich case, already referred to earlier, that “there would be an abuse if the facilities afforded by Community lawin favour <strong>of</strong> migrant workers and their spouses were invoked in the context <strong>of</strong> marriages <strong>of</strong> convenience enteredinto in order to circumvent the provisions relating to entry and residence <strong>of</strong> nationals <strong>of</strong> non-Member States” (ECJ,23 September 2003, Hacene Akrich, C-109/01, paragraph 57).155 In particular, the restrictions imposed by Council Resolution <strong>of</strong> 4 December 1997 on measures to be adoptedon the combating <strong>of</strong> marriages <strong>of</strong> convenience (OJ C 382 , 16/12/1997, p. 1), should be scrupulously respected.CFR-CDF.rep.UE.2003.en

56EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS1, b)), which is the case for instance if the sponsor has begun a stable long-termrelationship with another person (Article 16 § 1, c)). This provision puts the spouse(or the person with whom the sponsor is living in a de facto long-term relationshipwhich the Member State considers to grant a right to family r<strong>eu</strong>nification) -statistically, this is in most cases the wife - in a particularly vulnerable position, sincehe finds himself at the mercy <strong>of</strong> a cessation <strong>of</strong> marital life, the maintenance <strong>of</strong> whichconstitutes a condition for his continued residence. The Directive ought to haveprovided that the right to family r<strong>eu</strong>nification does not cease if the break-up <strong>of</strong> therelationship is the fault <strong>of</strong> the sponsor only. Member States which claim to rely onthis exception should avoid interpreting it in a way that establishes a right <strong>of</strong> refusal.Thus the most problematical provisions <strong>of</strong> Directive 2003/86/EC have in common that theyallow certain exceptions to the Member States, which remain free to rely upon them or not.This calls for two considerations:• Particular care should be taken that no transposition measures are taken that, byrelying upon these exceptions, threaten to infringe the fundamental rights recognizedin the European Union. The fact that the Directive provides for these exceptions doesnot mean that they are admissible from the viewpoint <strong>of</strong> the requirements <strong>of</strong>fundamental rights. In the exercise <strong>of</strong> its mission <strong>of</strong> monitoring the application <strong>of</strong>Community law, the Commission may consider that transpositions which infringefundamental rights constitute serious violations <strong>of</strong> Community law in the same way asother infringements that undermine the foundations <strong>of</strong> the rule <strong>of</strong> law identified in itsCommunication <strong>of</strong> 11 December 2002 on better monitoring <strong>of</strong> the application <strong>of</strong>Community law 156 .• The question <strong>of</strong> knowing whether Directive 2003/86/EC in itself leads to aninfringement <strong>of</strong> fundamental rights, and therefore whether it contains exceptions thatdo not appear to prevent Member States from committing such infringements,depends on the nature <strong>of</strong> the positive obligations that one would want to infer fromthe fundamental rights that are enshrined in the main principles <strong>of</strong> Community law, orfrom the Charter <strong>of</strong> Fundamental Rights 157 . There where an instrument <strong>of</strong> secondaryCommunity law can be criticized not only for not having taken all the precautions thatcould have been taken in order to prevent Member States from committinginfringements <strong>of</strong> fundamental rights in their implementation there<strong>of</strong>, the existence <strong>of</strong>such a positive obligation will not always be acknowledged. On the other hand, therewhere the instrument in question presents certain national measures as acceptable byexpressly providing for the exceptions that make them possible, it will be easier toestablish that it does not guarantee the protection against the risk <strong>of</strong> infringements <strong>of</strong>fundamental rights that it could have been reasonably expected to afford.The right <strong>of</strong> citizens <strong>of</strong> the Union and their family members to move and reside freely withinthe territory <strong>of</strong> the Member StatesThe proposal for a Directive on the right <strong>of</strong> citizens <strong>of</strong> the Union and their family members tomove and reside freely within the territory <strong>of</strong> the Member States has partly aroused the samekind <strong>of</strong> discussions about the notion <strong>of</strong> “family” that would justify the recognition <strong>of</strong> the rightto family r<strong>eu</strong>nification. The Council has opted to include the partner to whom a Union citizenis linked by a registered partnership or by a duly certified long-term relationship, only “wherethe law <strong>of</strong> the host Member State recognizes the situation <strong>of</strong> unmarried couples and inaccordance with the conditions provided for in this law”. In the current state <strong>of</strong> Community156 COM(2002) 725 final <strong>of</strong> 11/12/2002.157 See the Introduction to the present report, section II.3.: Preventing the risk <strong>of</strong> infringement <strong>of</strong> fundamentalrights in the implementation <strong>of</strong> European law.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200357law, it can already be inferred from Article 7 <strong>of</strong> Council Regulation 1612/68 <strong>of</strong> 15 October1968 158 , read in the light <strong>of</strong> the Reed judgment 159 , that a Member State which allowspartnerships or other forms <strong>of</strong> relationship apart from marriage between persons <strong>of</strong> the samesex to grant a right to family r<strong>eu</strong>nification to its own nationals whose partner or cohabitant <strong>of</strong>the same sex has a different nationality, must extend this advantage to every citizen <strong>of</strong> theEuropean Union who has a long-term relationship with a person <strong>of</strong> the same sex.As it stands now, the proposal for a Directive on the right <strong>of</strong> citizens <strong>of</strong> the Union and theirfamily members to move and reside freely within the territory <strong>of</strong> the Member States does notfollow the suggestion that was made by the European Parliament for the Directive to makereference to the spouse, “irrespective <strong>of</strong> sex, in accordance with the relevant applicablenational law”. In its Opinion n° 1-2003 delivered on 10 April 2003, the EU Network <strong>of</strong>Independent Experts on Fundamental Rights expressed doubts as to the justification that wasgiven for such a refusal on the basis <strong>of</strong> the judgment in the case D. and Kingdom <strong>of</strong> Sweden v.Council <strong>of</strong> the European Union given by the Court <strong>of</strong> Justice <strong>of</strong> the European Communitieson 31 May 2001 160 . For a presentation <strong>of</strong> this Opinion, see the commentary below underArticle 45 <strong>of</strong> the Charter.Article 8. Protection <strong>of</strong> personal dataThe stakes connected with the protection <strong>of</strong> personal data in the European Union areconstantly evolving. This is explained by two accelerating factors: the rapid technologicalprogress and the adoption both by the Member States and by the European Union <strong>of</strong> a set <strong>of</strong>measures designed to increase security in the face <strong>of</strong> the risk <strong>of</strong> terrorist attacks. The currentpursuit <strong>of</strong> increased security has cleared the way for initiatives which in a different contextwould undoubtedly have given rise to more objections and more thorough consideration 161 .The establishment <strong>of</strong> “pr<strong>of</strong>iles” on the basis <strong>of</strong> personal data obtained from different sources(different cross-linked databases), with the risk <strong>of</strong> discrimination that this may entail (forinstance is access to bank credit or to insurance, rented accommodation, security clearance, orcertain categories <strong>of</strong> employment), is becoming widespread. The proactive approach isspreading among the law enforcement authorities, and consists in the gathering and storage <strong>of</strong>personal information with a view to anticipating the risk <strong>of</strong> an <strong>of</strong>fence being committed,through the identification <strong>of</strong> individuals who are deemed liable to commit such an <strong>of</strong>fence,even before it is committed. It is this context that should be borne in mind when examiningthe threats which during the course <strong>of</strong> the period under scrutiny have come to weigh upon theprotection <strong>of</strong> the individual vis-à-vis the processing <strong>of</strong> his personal data.In the European Union, such protection is guaranteed by Directive 95/46/EC <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council <strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals with regardto the processing <strong>of</strong> personal data and on the free movement <strong>of</strong> such data 162 , extended in158 OJ L 57.159 ECJ, 17 April 1986, Ann Florence Reed, 59/85, ECR, p. 1283.160 ECJ, 31 May 2001, D. v. Council <strong>of</strong> the European Union, joined cases C-122/99 P and C-125/99 P, ECR, p. I-4319.161 An important report was submitted on this question to the Committee on Citizens’ Freedoms and Rights, Justiceand Home Affairs (LIBE) <strong>of</strong> the European Parliament: “Security and Privacy for the Citizen in the Post-September11 Digital Age: A Prospective Overview”, Institute for Prospective Technological Studies – Joint Research Centre,European Commission, ref. Report EUR 20823 EN, July 2003.162 OJ L 281 <strong>of</strong> 23/11/1995, p. 31. In an important judgment given in the course <strong>of</strong> the period under scrutiny, theCourt <strong>of</strong> Justice <strong>of</strong> the European Communities gave a broad interpretation <strong>of</strong> the guarantees provided by Directive95/46/EC, by referring to: see ECJ, 6 November 2003, Lindqvist, C-101/01, not yet published. The Court considersthat the fact <strong>of</strong> creating on one’s personal computer and at one’s home Internet pages referring to various personsand identifying them by name or by other means, for instance by giving their telephone number or informationregarding their working conditions and hobbies constitutes “processing” within the broad meaning <strong>of</strong> Directive95/46/EC. The Court also considers that, in the light <strong>of</strong> its objective, which is to protect a fundamental right torespect for privacy, the Directive should be interpreted in the sense that the fact <strong>of</strong> mentioning on an Internet pageCFR-CDF.rep.UE.2003.en

58EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSconnection with the protection <strong>of</strong> privacy in the telecommunications sector by Directive2002/58/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 12 July 2002, called “Directiveon privacy and electronic communications” 163 , and <strong>of</strong> which Regulation (EC) 45/2001 <strong>of</strong> 18December 2000 on the protection <strong>of</strong> individuals with regard to the processing <strong>of</strong> personal databy the Community institutions and bodies and on the free movement <strong>of</strong> such data 164 extendedthe protection to those institutions and bodies. This is the general framework under which anumber <strong>of</strong> questions were raised during the period under scrutiny.The communication <strong>of</strong> Passenger Names Records (PNR) by airline companies operatingtransatlantic flights to the US Bureau <strong>of</strong> Customs and Border ProtectionIn its thematic Observation n°1 on the balance between freedom and security in the responses<strong>of</strong> the European Union and its Member States to the terrorist threat, the EU Network <strong>of</strong>Experts on Fundamental Rights made a review <strong>of</strong> the concerns aroused by the joint statementissued on 18 February 2003 by the European Commission and the competent authorities <strong>of</strong>the United States, in which they endeavoured to find a solution to allow the transmission <strong>of</strong>personal data <strong>of</strong> passengers by airline companies operating Transatlantic flights, using theAPIS system (Advance Passenger Information System) 165 . Opinion 6/2002 <strong>of</strong> the “Article 29”Data Protection Working Party concluded on 24 October 2002, “the APIS system, thoughdeveloped in the context <strong>of</strong> terrorist atrocities, would lead to the disproportionate and routinedisclosure <strong>of</strong> information by airlines who are subject to the requirements <strong>of</strong> Directive95/46/EC” 166 . The joint statement <strong>of</strong> February 2003 was issued even though the authorities <strong>of</strong>the United States had announced their intention, as from 5 March 2003, to demand thatairlines operating flights to the United States transmit personal data <strong>of</strong> passengers - despite thereservations that such transmission may provoke from the viewpoint <strong>of</strong> Directive 95/46/ECand Regulation 2299/89 <strong>of</strong> 24 July 1989 167 . The situation created by the instruments adoptedby the United States following the terrorist attacks <strong>of</strong> 11 September 2001 (Aviation andTransport Security Act 2001; Enhanced Border Security and Visa Entry Reform Act 2002)has put the airline companies concerned in a particularly uncertain situation, given that, byagreeing to allow access to the information contained in the booking systems (PassengerNames Records – PNR), they would render themselves open to the criticism <strong>of</strong> not observingthe obligations imposed on them by the aforementioned instruments. However, if they refusesuch access, they would risk having financial penalties imposed on them by the Americanauthorities, even being prohibited from landing on United States territory. The United Stateshave refused to postpone the imposition <strong>of</strong> the requirements linked to access to the PNR,despite the legal uncertainty that has resulted for the operators concerned.Directive 95/46/EC prohibits the transfer <strong>of</strong> personal data from a European Union MemberState to a third country, unless the third country in question “ensures an adequate level <strong>of</strong>that an individual has injured her foot and is on half-time on medical grounds constitutes processing <strong>of</strong> personaldata “concerning health” (paragraphs 49 to 51).163 Directive 2002/58/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 12 July 2002 concerning the processing<strong>of</strong> personal data and the protection <strong>of</strong> privacy in the electronic communications sector, OJ L 201 <strong>of</strong> 31/7/2002, p.37. This Directive replaces Directive 97/66/EC <strong>of</strong> 15 December 1997, OJ L 24 <strong>of</strong> 30/1/1998, p. 1. Thetransposition <strong>of</strong> Directive 2002/58/EC should have been completed by 31 December 2003. The Commission haspointed out that infringement proceedings could be initiated against no fewer than nine Member States for failingto transpose this Directive within the set time limits.164 OJ L 8 <strong>of</strong> 12/1/2001, p. 1.165 Thematic Observation 1: balance between freedom and security in the response <strong>of</strong> the European Union and itsMember States to the terrorist threat, cited above, pp. 22-24.166 Opinion 6/2002 on transmission <strong>of</strong> Passenger Manifest Information and other data from Airlines to the UnitedStates, 24 October 2002, 11647/02/EN.167 Council Regulation (EEC) n° 2299/89 <strong>of</strong> 24 July 1989 on a code <strong>of</strong> conduct for computerized reservationsystems, OJ L 220 <strong>of</strong> 29/7/1989, p. 1. , last amended by Council Regulation 323/1999 <strong>of</strong> 8 February 1999, OJ L 40<strong>of</strong> 13/2/1999, p. 1. Article 6, d), <strong>of</strong> Regulation n° 2299/89 provides that « personal information concerning aconsumer and generated by a travel agent shall be made available to others not involved in the transaction onlywith the consent <strong>of</strong> the consumer ».CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200359protection” (Article 25 § 1). If this is not the case, the Commission may enter intonegotiations with a view to enabling the transfer <strong>of</strong> data subject to certain guarantees (Article25 § 5). At the end <strong>of</strong> these negotiations the Commission “may find (…) that a third countryensures an adequate level <strong>of</strong> protection (…) by reason <strong>of</strong> its domestic law or <strong>of</strong> theinternational commitments it has entered into, particularly upon conclusion <strong>of</strong> the negotiationsreferred to [in Article 25 § 5] for the protection <strong>of</strong> the private lives and basic freedoms andrights <strong>of</strong> individuals” 168 . The 16 December 2003 Communication from the Commission to theCouncil and the Parliament “Transfer <strong>of</strong> Air Passenger Name Record (PNR) Data: A GlobalEU Approach” 169 announces that the Commission will adopt a decision under Article 25(6) <strong>of</strong>Directive 95/46/EC, on the basis <strong>of</strong> the results <strong>of</strong> the negotiation with the US Bureau <strong>of</strong>Customs and Border Protection (CBP) 170 . The communication enumerates the undertakingsobtained from the US authorities in the course <strong>of</strong> those negotiations : instead <strong>of</strong> having accessto all data in the PNR, the US will receive limited data (a list <strong>of</strong> 34 items has been agreedupon, with no obligation to seek information from the passenger where certain items areblank) concerning only flights to, from or through the United States ; sensitive data, includingdata revealing racial or ethnic origin such a dietary preferences, will be filtered out anddeleted ; the data will only be used for the prevention <strong>of</strong> terrorism or related crimes <strong>of</strong>international dimension, to the exclusion <strong>of</strong> other “domestic” crime ; the data will be retainedfor no more than three and a half years, which corresponds to the duration <strong>of</strong> the US-ECagreement ; the Chief Privacy Officer established within the Department <strong>of</strong> HomelandSecurity (DHS) will “receive and handle in an expedited manner representations from DataProtection Authorities in the EU on behalf <strong>of</strong> citizens who consider that their complaints havenot been satisfactorily resolved by DHS”; an annual joint review (by the US Bureau <strong>of</strong>Customs and Border Protection and an EU Delegation led by the European Commission) <strong>of</strong>the US undertakings within the agreement will ensure that the actual practices <strong>of</strong> the USauthorities are effectively monitored with regard to the agreement ; finally, the Commissionhas obtained that the CAPPS II (Computer Assisted Passenger Pre-Screening System) schemewould not be covered by the agreement : negotiations on this would only begin if and whenthe privacy concerns expressed by the US Congress concerning CAPPS II have been met.The Commission has also prepared a document describing the information which the travelagents and airline companies should give to passengers flying to the US, informing themabout the treatment <strong>of</strong> their personal data. It should be emphasized that this informationcannot be interpreted as seeking to obtain the “consent” <strong>of</strong> the individual concerned, thusjustifying a derogation from the principle that personal data should not be transferred tocountries where no adequate protection exists (Article 26(1), a) <strong>of</strong> Directive 95/46/EC). In itsabovementioned Opinion n° 6/2002 <strong>of</strong> 24 October 2002, the Working Party Article 29 hasrightly emphasized that, in circumstances such as those involved here, the “consent” <strong>of</strong> thepassenger (whose choice cannot in this case be considered “free” in the meaning <strong>of</strong> Article 2,h), <strong>of</strong> the Directive) could not justify transmitting the Passenger Name Record data. Rather,this information is to be seen as a minimal condition so that the passenger will be able toeffectively exercise his rights under the agreement.The announced clarification <strong>of</strong> the obligations <strong>of</strong> airline companies and the lawfulness <strong>of</strong> thetransfer <strong>of</strong> data from the Passenger Name Record is obviously welcome, all the more so sincethe Member States have adopted sometimes divergent approaches to the interpretation <strong>of</strong> therequirements formulated in Chapter IV <strong>of</strong> the Directive concerning the transfer <strong>of</strong> personaldata to third countries, which creates the risk <strong>of</strong> distortion <strong>of</strong> competition between companiesdepending on from which country they operate flights to the United States. Two argumentsmay be put forward in favour <strong>of</strong> the solution which the European Commission proposes to168 On the interpretation <strong>of</strong> the provisions <strong>of</strong> the Directive concerning the transmission <strong>of</strong> data to third countries,see the Working Document <strong>of</strong> the Article 29 Working Party on Transfers <strong>of</strong> personal data to third countries:Applying Articles 25 and 26 <strong>of</strong> the EU Data Protection Directive, <strong>of</strong> 24 July 1998 (WP 12).169 COM(2003) 826 final, 16/12/2003.170 The date <strong>of</strong> March 2004 has been announced as the earliest possible date for adoption <strong>of</strong> such a decision.CFR-CDF.rep.UE.2003.en

60EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSadopt. The notion <strong>of</strong> “adequate protection” in Article 25 § 1 <strong>of</strong> Directive 95/46/EC is notsynonymous to “equivalent protection”. Provided that the objectives <strong>of</strong> Communitylegislation on data protection are achieved, it matters little if the means used by the country towhich the personal data are transferred differ from those resorted to by Directive 95/46/EC forthe European Union. Moreover, Article 13 <strong>of</strong> the Directive provides for the possibility <strong>of</strong>imposing restrictions on the principles relating to data quality, the provision <strong>of</strong> information tothe individual concerned, right <strong>of</strong> access and rectification, and publicizing <strong>of</strong> processingoperations, when such a restriction constitutes a necessary measure to safeguard “theprevention, investigation, detection and prosecution <strong>of</strong> criminal <strong>of</strong>fences” (Article 13 § 1, d)).Any assessment <strong>of</strong> the adequate nature <strong>of</strong> the level <strong>of</strong> protection afforded in the third countryto which personal data are transmitted from the European Union should also take account <strong>of</strong>this possibility <strong>of</strong> imposing restrictions on certain guarantees <strong>of</strong>fered by the Directive.Once it becomes effective, the agreement with the American authorities, whose undertakingsmight justify the adoption by the Commission <strong>of</strong> a decision taken by virtue <strong>of</strong> Article 25 § 6<strong>of</strong> Directive 95/46/EC, should contain a set <strong>of</strong> guarantees regarding the nature and quantity <strong>of</strong>the data that may be transmitted to them, as well as the use that may be made <strong>of</strong> the data inthe United States 171 . Nevertheless, under Community law as it stands now, the transmission <strong>of</strong>passenger data by airline companies which are bound to comply with Directive 95/46/EC andthe domestic laws <strong>of</strong> the Member State where these data are processed continues to be aninfringement <strong>of</strong> the Directive. Even the adoption <strong>of</strong> a Commission decision on the basis <strong>of</strong>Article 25 § 6 <strong>of</strong> Directive 95/46/EC will in itself not suffice to remedy this unlawfulness,since, if this decision is based on the international undertaking <strong>of</strong> the United States, thelawfulness <strong>of</strong> the transmission <strong>of</strong> passenger data will be dependent upon this agreementcoming into effect 172 . On the other hand, it is doubtful whether the coming into effect <strong>of</strong> thisagreement suffices to remove all difficulties. The provisions <strong>of</strong> the planned agreement do not<strong>of</strong>fer sufficient guarantees with regard to the risk <strong>of</strong> abuse in the transmission <strong>of</strong> these data toother authorities or agencies in the United States 173 , and the authorities responsible for dataprotection <strong>of</strong> the Union Member States are unable to monitor such transmissions. The datawill not be kept longer than is necessary by the United States Customs and Border ProtectionBureau or the United States Transport Security Administration, to which these data may betransmitted, and the undertakings <strong>of</strong> the American authorities <strong>of</strong> 22 May 2003 174 provide forthe destruction <strong>of</strong> the data after a certain period. On the other hand, the powers <strong>of</strong> the ChiefPrivacy Officer du Department on Homeland Security in particular do not at present seem tobe clearly defined in terms <strong>of</strong> their scope. The planned agreement with the United Statescreates a manifest risk <strong>of</strong> discrimination on the basis <strong>of</strong> “terrorist pr<strong>of</strong>iles” that may bedefined on the basis <strong>of</strong> data, even non-sensitive data within the meaning <strong>of</strong> Article 8 <strong>of</strong>Directive 95/46/EC, which are transmitted to the American authorities 175 . This merits all the171 These guarantees <strong>of</strong>fer to some extent a response to the difficulties identified by the European Parliament in itsResolution <strong>of</strong> 8 October 2003, Transmission <strong>of</strong> personal data by airlines in case <strong>of</strong> transatlantic flights (P5_TA-PROV(2003)0429).172 See Communication from the Commission <strong>of</strong> 16 December 2003, cited above, note 5.173 The Annex to the joint statement <strong>of</strong> 18 February 2003 lists the undertakings <strong>of</strong> the American authorities in theprocessing <strong>of</strong> PNR data. It provides that, in principle, “no other foreign, federal, state or local agency has access toPNR through Customs databases”. However, it is specified that “other law enforcement entities may specificallyrequest PNR information from Customs and Customs, in its discretion, may provide such information for nationalsecurity or in furtherance <strong>of</strong> other legitimate law enforcement purposes”. The authorities to which US Customshave transmitted such data cannot transmit them to third parties (Third Agency Rule): “for purposes <strong>of</strong> regulatingthe dissemination <strong>of</strong> PNR data which may be shared with other law enforcement entities, Customs is consideredthe "owner" <strong>of</strong> the data and such entities are obligated by the terms <strong>of</strong> disclosure to obtain Customs expressauthorization for any further dissemination”.174 Undertakings <strong>of</strong> the United States Bureau <strong>of</strong> Customs and Border Protection and the United StatesTransportation Security Administration <strong>of</strong> 22 May 2003, available at:http://<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/internal_market/privacy/docs/wpdocs/2003/wp78-pnrf-annex_en.pdf175 The Annex to the joint statement <strong>of</strong> 18 February 2003 says in this respect, “PNR data is used by Customsstrictly for enforcement purposes, including use in threat analysis to identify and interdict potential terrorists andother threats to national and public security, and to focus Customs resources on high risk concerns, therebyCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200361more attention since the talks between the European Commission and the Americanauthorities constitute a kind <strong>of</strong> laboratory with a view to a wider-ranging agreement, whichthe Communication from the Commission <strong>of</strong> 16 December 2003 proposes to conclude withinthe International Civil Aviation Organization 176 . The conditions for a generalization <strong>of</strong> thetransmission <strong>of</strong> air passenger data, with the risk <strong>of</strong> discrimination that this will hold forcertain categories <strong>of</strong> individuals, therefore seem to be fulfilled.It is therefore essential that a regular evaluation can be organized <strong>of</strong> the implementation <strong>of</strong> theagreement that will be concluded with the American authorities, and that a safety clause beprovided in case <strong>of</strong> abuse. Such a regular evaluation should comprise a mechanism <strong>of</strong><strong>independent</strong> audits that will guarantee transparency in terms <strong>of</strong> the use made <strong>of</strong> the datatransmitted by the airline companies to the United States Bureau <strong>of</strong> Customs and BorderProtection. The Article 29 Working Party is <strong>of</strong> the opinion that the public reports resultingfrom these audits should contain “the number and volume <strong>of</strong> PNR requests from other USpublic bodies and the number, volume and the motivating reason for those requests for whichauthorization has been granted by the first recipients” 177 . At the expiry <strong>of</strong> the agreement, aglobal evaluation ought to be made which should take into account the evolution <strong>of</strong> theinternational situation and the permanence <strong>of</strong> the risk <strong>of</strong> terrorist attacks that originallyjustified the demands <strong>of</strong> the American authorities 178 .The communication by carriers, to the authorities <strong>of</strong> the State <strong>of</strong> destination, <strong>of</strong> data relatingto the passengersA question <strong>of</strong> principle that is raised by the negotiation <strong>of</strong> the agreement between theEuropean Community and the United States regarding the transmission <strong>of</strong> PNR data is that <strong>of</strong>knowing whether data collected with a view to the booking <strong>of</strong> a flight may be used for otherpurposes 179 . The same kind <strong>of</strong> question is brought up by the proposal for a Directiveestablishing an obligation for air carriers to communicate certain data to the competentauthorities <strong>of</strong> the country <strong>of</strong> destination for the purposes <strong>of</strong> immigration control as well as forthe purpose <strong>of</strong> preventing certain criminal <strong>of</strong>fences 180 .This proposal finds its legal basis in Articles 62, 2), a), and 63 § 3, b), EC, which empowerthe Council to establish standards and procedures to be followed by Member States incarrying out checks on persons at the external borders, as well as to take measures concerningillegal immigration and illegal residence. It plans to improve border checks and the fightagainst illegal immigration through the transmission in advance <strong>of</strong> passenger data by carriersto the competent national authorities, on pain, in the event that the carriers fail to fulfil theseobligations, <strong>of</strong> dissuasive, effective and proportionate penalties, <strong>of</strong> which the Directive willfix the minimum levels. While the initial version <strong>of</strong> the proposal for a Directive was onlyaimed at air carriers, the latest version extends its scope to include all carriers 181 . Oneprovision <strong>of</strong> the proposal (Article 3 § 1, b), <strong>of</strong> the version <strong>of</strong> 12 November 2003) alsoprovides that the carriers should notify the competent national authorities within forty-eightfacilitating and safeguarding bona fide traveller (our emphasis).” This clearly illustrates the risk <strong>of</strong> discriminationattached to the definition <strong>of</strong> pr<strong>of</strong>iles <strong>of</strong> “potential” terrorists.176See point 3.5. <strong>of</strong> the communication <strong>of</strong> 16 December 2003, cited above.177 Opinion 4/2003 <strong>of</strong> the Article 29 Working Party on the Level <strong>of</strong> Protection ensured in the United States for theTransfer <strong>of</strong> Passengers’ Data, adopted on 13 June 2003 (WP 78), point 10.178 In this sense, see Opinion 4/2003 <strong>of</strong> the Article 29 Working Party on the Level <strong>of</strong> Protection ensured in theUnited States for the Transfer <strong>of</strong> Passengers’ Data, cited above, point 3.179 Cf. Article 6, § 1, b), <strong>of</strong> Directive 95/46/EC, which provides that personal data may be “collected for specified,explicit and legitimate purposes and not further processed in a way incompatible with those purposes”. Article 13<strong>of</strong> the Directive, as has already been pointed out, nevertheless provides for the possibility <strong>of</strong> restricting this rightfor one <strong>of</strong> the reasons that are listed.180 For the latest stage in the talks, see Council <strong>of</strong> the European Union, Initiative <strong>of</strong> the Kingdom <strong>of</strong> Spain with aview to adopting a Council Directive on the obligation <strong>of</strong> carriers to communicate passenger data, 14652/03,FRONT 155, COMIX 678, 12 November 2003.181 Although the Preamble still still refers exclusively to air carriers, which is undoubtedly a clerical error.CFR-CDF.rep.UE.2003.en

62EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTShours if a third country national has not used his return ticket to his country <strong>of</strong> origin or didnot continue his journey to a third country 182 . Article 6 <strong>of</strong> the proposed Directive concerns theprotection <strong>of</strong> personal data. It provides that data processed by carriers and transmitted to thecompetent authorities (authorities in charge <strong>of</strong> carrying out checks at the external borders orcombating illegal immigration, where these data concern the interruption by a third countrynational <strong>of</strong> his journey or his failure to use his return ticket) may be used solely for thepurpose <strong>of</strong> carrying out border checks. They should be destroyed once the individualconcerned has entered the territory. The carrier will ensure that the data are destroyed 24hours after arrival. A right <strong>of</strong> information, access and rectification <strong>of</strong> data is granted to theindividual whose data have been processed in this way, in accordance with Directive95/46/EC (Article 6 § 5 <strong>of</strong> the proposal).The inclusion <strong>of</strong> biometric identifiers in the visa and the residence permit for third countrynationalsThe need to improve document security, which was presented as an urgent need in theaftermath <strong>of</strong> the September 11, 2001, events. This concern has already led to the modification<strong>of</strong> the uniform format for visas 183 as well as to the laying down a uniform format for residencepermits for third country nationals 184 . Acting upon the request <strong>of</strong> the Member States,formulated first at the Veria informal meeting <strong>of</strong> the Justice and Home Affairs Ministers <strong>of</strong>28-29 March 2003, and reiterated by the Thessaloniki European Council <strong>of</strong> 19-20 June 2003,the Commission adopted a Proposal for a Council Regulation amending Regulation (EC)1683/95 laying down a uniform format for visas 185 . The proposal is, at a first stage, to includebiometric identifiers (fingerprints and digital photograph to ensure facial recognition) on thetravel documents <strong>of</strong> third country nationals 186 . This should be done in harmonized fashionacross all the Member States implementing the Schengen Convention, to ensureinteroperability – that the facial image or the fingerprint enrolled in State A will be readableby operators in State B with their own equipment. Article 62(2)b), iii), EC (according towhich the Commission may present proposals on a uniform format for visas) and Article63(3)a) EC (on the delivery <strong>of</strong> residence permit for third country nationals) provide therequired legal basis to that effect. Later, documents <strong>of</strong> EU citizens will also be concerned bythe measure. This will also facilitate compatibility with US legislation, which will requirebiometric elements in passports <strong>of</strong> citizens <strong>of</strong> countries granted a visa waiver as from 26October 2004.This further improvement <strong>of</strong> the security <strong>of</strong> travel documents <strong>of</strong> third country nationals mustbe related to the establishment <strong>of</strong> a common Visa Information System (VIS). The VIS shouldfacilitate the practical application <strong>of</strong> the Dublin II regulation, limiting the risk <strong>of</strong> asylumshoppingby asylum seekers arriving in the Schengen area, as well as the implementation <strong>of</strong> acommon return policy and the fight against illegal immigration and trafficking <strong>of</strong> humanbeings. The VIS should comprise a central system (C-VIS) and a national system in each182 This clause, however, does not have the support <strong>of</strong> several Member States, nor that <strong>of</strong> the Commission.183 Council Regulation (EC) n° 334/2002 <strong>of</strong> 18 February 2002 introducing the integration <strong>of</strong> a photographaccording to high security standards and amending Regulation (EC) n° 1683/95 laying down a uniform format forvisas, OJ L 53, 23/2/2002, p. 7.184 Regulation (EC) 1030/2002 <strong>of</strong> 13 June 2002 laying down a uniform format for residence permits for thirdcountry nationals, OJ L 157, 15/6/2002, p. 1.185 COM(2003)558 final.186 The potentially discriminatory impact <strong>of</strong> the proposal, taking into consideration the composition <strong>of</strong> the list <strong>of</strong>countries identified in Annex I <strong>of</strong> the Council Regulation (EC) No 539/2001 <strong>of</strong> 15 March 2001 listing the thirdcountries whose nationals must be in possession <strong>of</strong> visas when crossing the external borders and those whosenationals are exempt from that requirement, OJ L 81, 21/3/2001, p. 1 (and subsequent amendments), should not b<strong>eu</strong>nderestimated, unfortunately. This has been emphasized, inter alia, by the organisation Statewatch at the hearingorganized by the EU Network <strong>of</strong> Independent Experts on Fundamental Rights on 16 October 2003. See also thedocument « Statewatch submission to the EU Network <strong>of</strong> Independent Experts on Fundamental Rights », on thewebsite <strong>of</strong> that organisation.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200363Member State (N-VIS). Essentially, the introduction <strong>of</strong> the digital photograph on the visauniform format will make possible (provided <strong>of</strong> course that the digital photograph is <strong>of</strong>adequate quality and that the border crossing-points are equipped with the requiredtechnology) to relate the photograph not only to the holder (by the use <strong>of</strong> facial recognitionsystems), for means <strong>of</strong> authentification, but also to the data held in the VIS, for means <strong>of</strong>identification.Of course, the requirements laid down in Directive 95/46/CE need to fully taken into accountin the implementation <strong>of</strong> the proposal. To comply with these requirements, the proposalcomprises an amended Article 4(2) to Regulation (EC) n° 1683/95, according to whichNo information in machine-readable form shall be included in the uniform format forvisa, unless provided for in this Regulation, its Annex or unless it is mentioned in therelevant travel document.Moreover, Article 4a is inserted in the same Regulation. With a view to ensuring that Article17 <strong>of</strong> Directive 95/46/EC is complied with, it provides thatThe uniform format for visa shall contain a facial image, which shall function asinteroperable biometric identifier and two fingerprint images <strong>of</strong> the holder. Thefingerprint images shall be taken from flat fingers.The biometric information shall be kept on a storage medium which shall be highlysecured and which shall have sufficient capacity.Although they are useful, these provisions obviously cover only a small part <strong>of</strong> therequirements which can be derived from Directive 95/46/EC. Four aspects <strong>of</strong> the Directive,applied to biometrics, may be worth emphasizing, on the basis <strong>of</strong> the Working Documentprepared on biometrics by the Data Protection Working Party instituted by Article 29 <strong>of</strong>Directive 95/46/EC 187 . First, a biometric element is at once universal (it is a characteristic tobe found in each person), unique (the characteristic is distinctive to each person), andpermanent (it refers to a property <strong>of</strong> the person which does not change in time). Thepermanent character especially is at once an advantage (in terms <strong>of</strong> reliability) and a riskfactor (the risk <strong>of</strong> misuse <strong>of</strong> data after their storage in databanks is high).Second, for the assessment <strong>of</strong> the proportionality <strong>of</strong> the processing <strong>of</strong> biometrics, it isessential to identify with precision the goal which is pursued by the processing. ThePreambule <strong>of</strong> the Regulation proposed by the Commission states that the introduction <strong>of</strong>biometric elements in the uniform format for visas seeks to « establish a more reliable linkbetween the holder and the visa format as an important contribution to ensuring that th<strong>eu</strong>niform format for visas is protected against fraudulent use » (Recital 2) The establishment<strong>of</strong> a common Visa Information System (VIS) is note mentioned here. However, a crucialdistinction is to be made between the use <strong>of</strong> biometrics for authentification purposes (is thedocument holder indeed the person to whom the document was delivered ?) and the use <strong>of</strong>biometrics for identification purposes (is the person already identified in a system storing thebiometric information concerning a large set <strong>of</strong> persons ?). As remarked by the Working Partyon Data Protection, « In principle, it is not necessary for the purposes <strong>of</strong>authentification/verification to store the reference data in a database ; it is sufficient to storethe personal data in a decentralised way. Conversely, identification can only be achieved bystoring the reference data in a centralised database, because the system, in order to ascertainthe identity <strong>of</strong> the data subject, must compare his/her [data, transformed into templates or187 See the Working document on biometrics adopted on 1 August 2003 by the Data Protection Working Partyinstituted under Article 29 <strong>of</strong> Directive 95/46/EC (WP 80, 12168/02). It should be emphasized however that theWorking Party still has to react to the proposal <strong>of</strong> the Commission ; the working document 80 <strong>of</strong> 1 August 2003 isdrafted in general terms, on the use <strong>of</strong> biometrics in a number <strong>of</strong> different contexts.CFR-CDF.rep.UE.2003.en

64EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSimages at the phase <strong>of</strong> enrolment] with the [similar data] <strong>of</strong> all persons whose data are alreadycentrally stored ». Therefore, if the regulation seeks not only to ensure against fraudulent use<strong>of</strong> the visa (authentification), but also to complement the Dublin II Regulation and limit therisk <strong>of</strong> multiple asylum claims being introduced by a same person or serve the VIS, thisshould be explicitly mentioned.Third, it is also important that the individual is fully informed <strong>of</strong> the enrolment <strong>of</strong> biometricelements relating to him/her, in accordance with Articles 10 and 11 <strong>of</strong> the Directive. Fourth,the Working Party on Data Protection emphasizes that biometric systems are not necessarilyerror-pro<strong>of</strong>. In fact, the very requirements <strong>of</strong> proportionality (Art. 6 § 1, c) <strong>of</strong> Directive95/46/EC) impose that only data which are strictly related to the legitimate objective pursued,and to the extent the processing <strong>of</strong> such data is necessary for the fulfilment <strong>of</strong> that purpose,may be processed : a strict adherence to the requirements <strong>of</strong> proportionality (implying, forinstance, that only two fingerprints would be enrolled, rather than ten), only heightens the risk<strong>of</strong> errors occurring. But the illusion <strong>of</strong> scientific certainty created by the use <strong>of</strong> biometricidentifiers means that « the data subject may find it difficult or even impossible to prove thecontrary. For instance, a system may mistakenly identify a data subject as someone whoshould not be allowed to take a place or should not enter a specific country and who wouldhave little means to resolve the problem when he is faced with such ‘indisputable’ evidenceagainst him ». The Working Party therefore stresses that in such cases, Article 15 <strong>of</strong> Directive95/46/EC requires that any decision legally affecting an individual should only be taken afterreaffirming the outcome <strong>of</strong> the automated processing.The evaluation <strong>of</strong> Directive 95/46/ECDuring the period under scrutiny, the Court <strong>of</strong> Justice delivered an important judgment inwhich it confirmed that the provisions <strong>of</strong> Directive 95/46/EC <strong>of</strong> the European Parliament and<strong>of</strong> the Council <strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals with regard to theprocessing <strong>of</strong> personal data and on the free movement <strong>of</strong> such data 188 should, on the one hand,be interpreted in the light <strong>of</strong> the protection <strong>of</strong> privacy afforded by Article 8 <strong>of</strong> the EuropeanConvention on Human Rights - a provision <strong>of</strong> which the European Court <strong>of</strong> Human Rightsconsidered that it extended to protection with regard to the processing <strong>of</strong> personal data,irrespective <strong>of</strong> whether or not those data concerned an individual’s “private life” 189 –, and onthe other hand may be relied upon directly by the individual in order to avoid the application<strong>of</strong> rules <strong>of</strong> domestic law that are contrary to those provisions, ins<strong>of</strong>ar as these appear to beboth unconditional and sufficiently specific. The Court ruled in this sense in a case where itwas a matter <strong>of</strong> knowing whether the public communication, by the Austrian Rechnungsh<strong>of</strong>(Court <strong>of</strong> Audit), <strong>of</strong> data on the salaries and pensions paid to employees and pensioners byvarious public bodies under its control when these salaries exceeded a certain level, alongwith the names <strong>of</strong> the recipients, was in compliance with the proportionality requirementenshrined in Article 8 § 2 <strong>of</strong> the European Convention on Human Rights as well as in Article6 § 1, c), <strong>of</strong> Directive 95/46/EC (according to which the data must be “adequate, relevant andnot excessive” in relation to the purposes), and in its Article 7, c) and e) (which includeamong the criteria for making data processing legitimate the necessity <strong>of</strong> compliance with alegal obligation to which the processing controller is subject, and the necessity <strong>of</strong> the“performance <strong>of</strong> a task carried out in the public interest or in the exercise <strong>of</strong> <strong>of</strong>ficial authorityvested in the controller or the third party to whom the data are disclosed”) 190 .This development is <strong>of</strong> course to be welcomed, as it could compensate in part for theincomplete or inadequate character <strong>of</strong> the implementation <strong>of</strong> directive 95/46/EC in the188 OJ L 281 <strong>of</strong> 23/11/1995, p. 31.189 Eur. Ct. H.R., Rotaru v. Romania, judgment <strong>of</strong> 4 May 2000, ECR 2000-V, § 43.190 ECJ (Plenary session), 20 May 2003, Österreichischer Rundfunk et al., joined cases C-465/00, C-138/01 and C-139/01.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200365member States. However this should not lead to underestimate the difficulties which theimplementation <strong>of</strong> the directive has faced in other important respects. In its first report on theimplementation <strong>of</strong> Directive 95/46/EC, presented in May 2003 191 , the Commission hasidentified three interrelated difficulties which may explain in certain cases, countries orsectors, a low level compliance with the requirements <strong>of</strong> data protection law, as listed in thenational legislation implementing Directive 95/46/EC. First, it notes “under-resourcedenforcement effort and supervisory authorities with a wide range <strong>of</strong> tasks, among whichenforcement actions have a rather low priority » ; second, there is « patchy compliance bydata controllers, no doubt reluctant to undertake changes in their existing practices to complywith what may seem complex and burdensome rules, when the risks <strong>of</strong> getting caught seemlow » ; third, the Commission is confronted with an « apparently low level <strong>of</strong> knowledge <strong>of</strong>their rights among data subjects ».These phenomena are <strong>of</strong> course mutually reinforcing. They should lead us to be most cautiousabout reliance on the consent <strong>of</strong> the data subject to legitimize the processing <strong>of</strong> personal data,when this is the only ground justifying such processing under the list <strong>of</strong> acceptable grounds inArticle 7 <strong>of</strong> the Directive 95/46/EC. Indeed, this is especially problematic not only inemployment relationships, where the imbalance <strong>of</strong> power is visible and should be taken intoaccount in a further Community initiative in that field, but also in the relationships betweenconsumer and business, where the dangers are seen as particularly high 192 .These findings also lead to recall that the EC Treaty (Art. 10 EC) imposes on the MemberStates an obligation to contribute faithfully to the implementation <strong>of</strong> EC Law. This mustnecessarily include, for instance, an obligation to ensure an adequate financing <strong>of</strong> the<strong>independent</strong> control authorities created according to Article 28 <strong>of</strong> Directive 95/46/EC, andrequired under Article 8(3) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. These authorities should begiven the means necessary for their effective functioning, in budgetary terms and byproviding them with the needed personnel. This is indispensable not only for theirindependency, but also for the very possibility for these authorities to adequately perform themissions assigned to them, in particular by using their investigatory powers (which maycomprise in situ inspections conducted without prior announcements) and their powers toengage in legal proceedings where they find privacy regulations to be violated. In fact, thefinancing <strong>of</strong> these authorities must not only be ensured and maintained, it must be improved,in line with the extension <strong>of</strong> the supervisory functions <strong>of</strong> these authorities, which is inproportion to the development <strong>of</strong> technologies processing personal data, for examplebiometrics as a means <strong>of</strong> identification 193 .The information and communication technologies that are increasingly being used in ourinformation society can produce three kinds <strong>of</strong> impact on our privacy: they may be situatedbelow the minimum thresholds <strong>of</strong> protection provided for by applicable Community law or bynational transposition measures; they may comply with these standards, but nothing more;finally, they may have been designed in such a way as to minimize the impact on privacy andto facilitate the exercise <strong>of</strong> the rights <strong>of</strong> the individual concerned (right <strong>of</strong> information, accessand rectification, objection and appeal) (Privacy Enhancing Technologies - PET). It would b<strong>eu</strong>seful to examine whether a privacy impact study might be carried out systematically as part191 COM(2003) 265 final, 15/5/2003. Article 33 <strong>of</strong> Directive 95/46/EC <strong>of</strong> 24 October 1995 provides that, at thelatest by 24 October 2001 – three years after the expiry <strong>of</strong> date fixed for the implementation by the Member States<strong>of</strong> the directive –, the Commission reports to the European Parliament and to the Commission on its application, bymaking, if necessary, proposals for its revision. This report has thus finally been published in May 2003.192 For the suggestion that we may require « systems to protect individuals from their inclination to trade their ownprivacy for convenience », see the Report “Security and Privacy for the Citizen in the Post-September 11 DigitalAge : A Prospective Overview”, at p. 107.193 See the European Commission’s Proposal for a Council Regulation amending Regulation (EC) 1683/95 layingdown a uniform format for visas, COM(2003)558 final.CFR-CDF.rep.UE.2003.en

66EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS<strong>of</strong> the adoption <strong>of</strong> those technologies when harmonization measures are planned in the area <strong>of</strong>information technologies (Privacy Impact Assessments (PIAs)).Data protection in the context <strong>of</strong> police cooperationThe Draft Council Resolution on security at European Council meetings and othercomparable events 194 provides a striking illustration <strong>of</strong> the links between the development <strong>of</strong> aproactive approach to security and the risks that such an approach entails for the protection <strong>of</strong>privacy, and more particularly the protection <strong>of</strong> personal data. While the internal bordersbetween the Member States <strong>of</strong> the Schengen area may be crossed freely, Article 2 § 2 <strong>of</strong> theConvention Applying the Schengen Agreement <strong>of</strong> 14 June 1985 on the gradual removal <strong>of</strong>checks at common borders, <strong>of</strong> 19 June 1990, provides, “Where public policy or nationalsecurity so require, however, a Contracting Party may, (…) decide that for a limited periodnational border checks appropriate to the situation will be carried out at internal borders”.Except where immediate action is required, any decision to reinstate checks at internalborders may only be taken after consultation with the other Contracting Parties. The abovementionedDraft Resolution claims to make it easier for the States concerned to exercise thisoption by encouraging better cooperation between the competent national authorities. Indeed,according to the Preamble <strong>of</strong> the Draft Resolution, “application <strong>of</strong> Article 2(2) <strong>of</strong> theSchengen Convention may cause inconvenience at some border crossings in the host country,thereby detracting from people’s freedom <strong>of</strong> movement across Europe, with the possibility <strong>of</strong>public order disturbances”. The “effective application, with less nuisance value”, <strong>of</strong> actiontaken under Article 2(2) <strong>of</strong> the Schengen Convention would be improved by betterinformation and alerts “regarding named individuals from other Member States who maydisrupt the holding <strong>of</strong> European Council meeings or other comparable international events”,such information and alerts making “targeted checks” on those named individuals possible,“thereby facilitating free movement <strong>of</strong> people”. The operative part <strong>of</strong> the Draft Resolutiontherefore states thatIn order to make it easier for the host country to carry out targeted close checks ontravellers, Member States shall supply that country with any information <strong>of</strong> relevancein identifying individuals with a record <strong>of</strong> having caused disturbances in similarcircumstances.And such information may,where national legislation allows, include names <strong>of</strong> individuals convicted <strong>of</strong> <strong>of</strong>fencesinvolving disruption <strong>of</strong> public order at demonstrations or other events.The Draft Resolution states that exchange <strong>of</strong> personal data as encouraged by its text wouldhave to comply with relevant national and international legislation, and specifically to theCouncil <strong>of</strong> European Convention n°108 <strong>of</strong> 28 January 1981 for the Protection <strong>of</strong> Individualswith regard to Automatic Processing <strong>of</strong> Personal Data, however it saysPersonal data may be used and kept only until the end <strong>of</strong> the event for which theywere supplied and only for the purposes laid down in this Resolution, save asspecifically agreed with the country which supplied the data.The information to be shared between the national law enforcement authorities therefore maycomprise records <strong>of</strong> criminal convictions, but it is not limited to that sensitive information :relevant information may also consist in the identity <strong>of</strong> individuals “with a record <strong>of</strong> having194 Note from the Italian Presidency <strong>of</strong> the Council to the Working party on Police Cooperation, Draft CouncilResolution on security at European Council meetings and other comparable events, doc. 10965/03, ENFOPOL 63,COMIX 417, 30/6/2003.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200367caused disturbances in similar circumstances” 195 . This may result in severely restricting thefreedom <strong>of</strong> movement <strong>of</strong> protesters, wishing to voice their concerns at the internationalsummits where they have the best chances <strong>of</strong> being heard. Such a restriction to the freedom <strong>of</strong>movement chills or impedes the exercise <strong>of</strong> a democratic right to peaceful assembly anddemonstration, which is a component <strong>of</strong> freedom <strong>of</strong> expression. And the exchange <strong>of</strong> personaldata, in the circumstances envisaged by the Draft Resolution, appears incompatible with therequirement that any interferences with the right to respect for private life should becircumscribed by legal rules <strong>of</strong> a sufficient quality.This last proposal highlights the usefulness <strong>of</strong> an initiative for the adoption <strong>of</strong> an instrumentseeking to reinforce the protection <strong>of</strong> the individual vis-à-vis the processing <strong>of</strong> personal datain the framework <strong>of</strong> activities led under Title VI <strong>of</strong> the Treaty <strong>of</strong> the European Union, whichare excluded from the scope <strong>of</strong> applicability <strong>of</strong> Directive 95/46/EC (see Article 3(2)). In thecourse <strong>of</strong> 2004, particular attention should be paid to the guarantees <strong>of</strong> data protection in theimplementation <strong>of</strong> the second generation Schengen Information System (SIS II). TheCommission Staff Working Document published in February 2003 196 – which constitutes theprogress report to be presented under Article 6 <strong>of</strong> the Regulation 2424/2001 <strong>of</strong> the Council <strong>of</strong>6 December 2001 197 – is barely explicit on how an adequate level <strong>of</strong> data protection will beensured in the setting up SIS II, which has become urgent in view <strong>of</strong> the rythm at which theenlargement <strong>of</strong> the Union to ten new Member States has proceeded. The specific role <strong>of</strong> theEU Network <strong>of</strong> Independent Experts in Fundamental Rights will be to evaluate whether therecommendations made by the data protection authorities – which the Commission hasundertaken to consult 198 – have been effectively implemented in the final version <strong>of</strong> theSystem.Article 9. Right to marry and right to found a familyThe main question in connection with this provision which arose during the period underscrutiny concerned the notion <strong>of</strong> “family members” used by the amended proposal for aDirective <strong>of</strong> the European Parliament and <strong>of</strong> the Council on the right <strong>of</strong> citizens <strong>of</strong> the Unionand their family members to move and reside freely within the territory <strong>of</strong> the Member States,which the Commission presented in April 2003 and which retains only part <strong>of</strong> the195 The Draft Resolution refers to the Security Handbook for the use <strong>of</strong> police authorities and services atinternational events such as meetings <strong>of</strong> the European Council (doc. 12637/3/02, ENFOPOL 123, 12.11.2002),which should serve as a set <strong>of</strong> guidelines for the member States in providing security at international events suchas meetings <strong>of</strong> the European Council. Referring to Article 2(2) <strong>of</strong> the Schengen Convention, the SecurityHandbook states that the Member States « should utilise the available and appropriate legislative measures toprevent individuals or groups considered to be a threath to the maintenance <strong>of</strong> public order from travelling to thelocation <strong>of</strong> the event ». The Security Handbook includes an Annex A, « Risk analysis <strong>of</strong> potential demonstratorsand other groupings », listing the information which the permanent national contact point designated in each Stateshould transmit to the Member States organising the event as well as to the other affected countries, such as transitor neighbouring countries. This « risk analysis » should target « known potential demonstrators and other groupingexpected to travel to the event and deemed to pose a potential threath to the maintenance <strong>of</strong> public law and order »in the organising State. Annex A to the Security Handbook suggests that information should be provided, inter alia,on the name <strong>of</strong> the group, the distinguishing marks (clothes, logos, flags), the possible violent nature <strong>of</strong> the group,the demonstration methods, the internal functioning <strong>of</strong> the group (means <strong>of</strong> communication e.g.), the links to othergroups, the members involved previously in relevant incidents, the circumstances <strong>of</strong> these incidents and whetherthe led to convictions, the behaviour (towards the police and the population, wearing masks, alcohol or drugconsumption, « pattern <strong>of</strong> behaviour at different types <strong>of</strong> events », or « other relevant information ». Thepermanent national contact point should indicate the sources <strong>of</strong> his information and the accuracy and reliability <strong>of</strong>the provided information. However, this enumeration <strong>of</strong> items already gives an indication as to the risks <strong>of</strong>discrimination and <strong>of</strong> chilling the exercise <strong>of</strong> democratic rights to protest such exchange <strong>of</strong> information may entail.It would be clearly unacceptable if the exercice <strong>of</strong> freedom <strong>of</strong> expression or <strong>of</strong> peaceful assembly led to theprohibition to travel to other countries <strong>of</strong> the Schengen zone where European Summits are held.196 SEC(2003) 206, 18/2/2003.197 OJ L 328 <strong>of</strong> 13/12/2001198 See point 3.5. <strong>of</strong> the Working Document SEC(2003)206.CFR-CDF.rep.UE.2003.en

68EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSamendments proposed by the European Parliament. This instrument is examined under Article45 <strong>of</strong> the Charter. The debate centres more particularly on the recognition by the otherMember States <strong>of</strong> marriages between individuals <strong>of</strong> the same sex as provided for by Belgianand Dutch law.Article 10. Freedom <strong>of</strong> thought, conscience and religionRegarding the protection afforded by Directive 2000/78/EC <strong>of</strong> 27 November 2000establishing a general framework for equal treatment in employment and occupation 199 topersons expressing their adherence to a particular religion, see the commentary on Article 21<strong>of</strong> the Charter. The evaluation <strong>of</strong> the activities <strong>of</strong> the European Union during the period underscrutiny does not elicit any other commentaries on Article 10 <strong>of</strong> the Charter.Article 11. Freedom <strong>of</strong> expression and <strong>of</strong> informationIn a judgment <strong>of</strong> 12 June 2003, the European Court <strong>of</strong> Justice was led to balance thefundamental rights, as recognized inter alia in the European Convention on Human Rights,with the fundamental freedoms <strong>of</strong> movement <strong>of</strong> the EC Treaty 200 . An enterprise <strong>of</strong>international transport alleged before an Austrian jurisdiction that the autorisation given to anassociation for the defense <strong>of</strong> the environment to manifest its views by occupying the Brennerhighway, leading this highway to be blocked for almost 30 hours, was incompatible with theprinciple <strong>of</strong> freedom <strong>of</strong> movement <strong>of</strong> goods. Requested to interpret EC Law in that context,the Court rules that Article 28 EC « does not prohibit only measures emanating from the Statewhich, in themselves, create restrictions on trade between Member States. It also applieswhere a Member State abstains from adopting the measures required in order to deal withobstacles to the free movement <strong>of</strong> goods which are not caused by the State » (Recital 57) 201 .Therefore the abstention <strong>of</strong> the Austrian authorities to prohibit the manifestation is normallyto be considered a measure equivalent to a quantitative restriction incompatible with Articles28 and 29 EC, unless it can be objectively justified. The Court notes in that respect that « thenational authorities relied on the need to respect fundamental rights guaranteed by both theECHR and the Constitution <strong>of</strong> the Member State concerned in deciding to allow a restrictionto be imposed on one <strong>of</strong> the fundamental freedoms enshrined in the Treaty » (Recital 76), andthat therefore « The case thus raises the question <strong>of</strong> the need to reconcile the requirements <strong>of</strong>the protection <strong>of</strong> fundamental rights in the Community with those arising from a fundamentalfreedom enshrined in the Treaty and, more particularly, the question <strong>of</strong> the respective scope <strong>of</strong>freedom <strong>of</strong> expression and freedom <strong>of</strong> assembly, guaranteed by Articles 10 and 11 <strong>of</strong> theECHR, and <strong>of</strong> the free movement <strong>of</strong> goods, where the former are relied upon as justificationfor a restriction <strong>of</strong> the latter » (Recital 77). As to how to operate this conciliation, the Courtsay that « the interests involved must be weighed having regard to all the circumstances <strong>of</strong> thecase in order to determine whether a fair balance was struck between those interests » (Recital81); it adds : « The competent authorities enjoy a wide margin <strong>of</strong> discretion in that regard.Nevertheless, it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light <strong>of</strong> the legitimate objective pursued, namely, inthe present case, the protection <strong>of</strong> fundamental rights » (Recital 82).199 OJ L 303 <strong>of</strong> 2/12/2000, p. 16.200 ECJ, 12 June 2003, Schmidberger, C-112/00, nyr.201 See also ECJ, 9 December 1997, Commission v. France, C-265/95, ECR I-6959, Recitals 29 and 30. TheEuropean Court <strong>of</strong> justice, however, emphasizes the differences between the two situations : in Commission v.France, in particular, the manifestants intended to obstruct the free flow <strong>of</strong> goods, and more precisely the freecirculation <strong>of</strong> products from Member States other than France ; they did not seek to manifest to give publicity totheir views on a question <strong>of</strong> general interest. Comp. with the Opinion <strong>of</strong> AG F.G. Jacobs <strong>of</strong> 11 July 2002 inSchmidberger, point 54 ; see also, however, point 79 <strong>of</strong> the Opinion.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200369The judgment therefore confirms that a Member State may justify imposing certainrestrictions on the fundamental market freedoms <strong>of</strong> the EC Treaty by the need to respect thefundamental rights recognized in the legal order <strong>of</strong> the Union, as these are codified, inparticular, by the Charter <strong>of</strong> Fundamental Rights 202 . With respect to obstacles to the freemovement <strong>of</strong> goods, the solution is confirmed by Council Regulation (EC) No 2679/98 <strong>of</strong> 7December 1998 on the functioning <strong>of</strong> the internal market in relation to the free movement <strong>of</strong>goods among the Member States 203 . Indeed, this regulation covers obstacles to the freemovement <strong>of</strong> goods which are attributable to a Member State, whether through action orinaction on its part, which may constitute a violation <strong>of</strong> Article 28 and ff. EC where suchobstacles lead to serious disruption <strong>of</strong> the free movement <strong>of</strong> goods by physically or otherwisepreventing, delaying or diverting their import into, export from or transport across a MemberState, causing serious loss to the individuals affected, and requiring immediate action in orderto prevent any continuation, increase or intensification <strong>of</strong> the disruption or loss in question. Inconformity with the judgment <strong>of</strong> 9 December 1997 in Commission v. France, “inaction” <strong>of</strong>Member States’ authorities refers to cases when the competent national authorities, in thepresence <strong>of</strong> an obstacle caused by actions taken by private individuals, fail to take allnecessary and proportionate measures within their powers with a view to removing theobstacle and ensuring the free movement <strong>of</strong> goods in their territory. The Regulation states thatit “may not be interpreted as affecting in any way the exercise <strong>of</strong> fundamental rights asrecognised in Member States, including the right or freedom to strike” (Article 2). This is thesolution which is confirmed in the Schmidberger case-law.An examination <strong>of</strong> the proportionality <strong>of</strong> the restrictions imposed on the fundamental freedom<strong>of</strong> movement under the Treaty, where such restrictions are justified by the concern to protectfundamental rights, must not take the form <strong>of</strong> a strict examination <strong>of</strong> necessity. Although sucha restriction may not be “necessary” for the protection <strong>of</strong> a recognized fundamental right, inthe sense that this right would not be infringed even if the measure does not need to beadopted, it may nevertheless be justified by the concern that a State might have to realize afundamental right beyond what is strictly required for the observance <strong>of</strong> that right. In severalcases where the Netherlands and Austria claimed to justify certain restrictions on the freeprovision <strong>of</strong> services or the free movement <strong>of</strong> goods in the name <strong>of</strong> the necessity <strong>of</strong> pluralism,this justification could have been allowed, even though in the European Convention onHuman Rights the freedom <strong>of</strong> expression does not call for the organization <strong>of</strong> suchpluralism 204 . This position <strong>of</strong> the Court <strong>of</strong> Justice merits approval. Fundamental rights do notmerely have to be “respected”. They possess a dynamic content, which is progressivelyclarified by measures that ensure their implementation. It is important that, in theimplementation <strong>of</strong> those rights, the States are not too strictly bound by the respect due to theeconomic freedoms <strong>of</strong> the Treaty, provided that the measures that are adopted are notdiscriminatory and are reasonably linked to the necessity <strong>of</strong> developing the fundamental rightsthat are recognized. Verification <strong>of</strong> necessity will have to be all the less strict since what isinvolved is the non-intervention by the national authorities in the face <strong>of</strong> the exercise byindividuals <strong>of</strong> their fundamental freedoms.Furthermore, the fundamental rights that are likely to justify certain restrictions on thefundamental freedoms <strong>of</strong> movement should not be limited solely to the rights featured in the202 While recalling that one could not exclude a situation where, under the pretext <strong>of</strong> respecting the fundamentalrights guaranteed in his own national legal order, a State would in fact be pursuing objectives incompatible withthe EC Treaty – disguising protectionist measures under the concern for fundamental rights (points 97 and 98) –,AG Jacobs considered in his Opinon that « where a Member State seeks to protect fundamental rights recognisedin Community law the Member State necessarily pursues a legitimate objective. Community law cannot prohibitMember States from pursuing objectives which the Community itself is bound to pursue » (point 102).203 OJ 1998 L 337, p. 8.204 See ECJ, 25 July 1991, Commission v. Netherlands, 353/89, ECR, p. 4089 (Recital 30); ECJ, 25 July 1991,Stichting Collectieve Antennevoorziening Gouda et al. v. Commissariaat voor de Media, 288/89, ECR p. 4007(Recital 23); ECJ, 3 February 1993, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media,148/91, ECR, p. 513 (Recitals 9 and 10); ECJ, 26 June 1997, Familiapress, C-368/95, ECR, p. I-3689 (Recital 24).CFR-CDF.rep.UE.2003.en

70EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSCharter <strong>of</strong> Fundamental Rights <strong>of</strong> the European Union. The Charter does not seek to impedethe development <strong>of</strong> the fundamental rights that feature among the general principles <strong>of</strong> Unionlaw as enforced by the Court 205 . When the European Convention proposed a Treatyestablishing a Constitution for Europe, its authors rightly chose to include among thefundamental rights, besides the rights enshrined in the Charter, the fundamental rights thatform part <strong>of</strong> Union law as general principles 206 .Pluralism <strong>of</strong> the mediaIn accordance with Article 11 § 2 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> the EuropeanUnion, “the freedom and pluralism <strong>of</strong> the media shall be respected”. This provision seems tobe a consequence <strong>of</strong> the freedom <strong>of</strong> expression guaranteed by Article 11 § 1 <strong>of</strong> the Charter.Although the European Convention on Human Rights did not establish a “right to pluralism inthe media” or to pluralist information, several decisions <strong>of</strong> the European Court <strong>of</strong> HumanRights acknowledged that the concern to safeguard the pluralism <strong>of</strong> the media may justify theimposition by the State <strong>of</strong> certain restrictions on the freedom <strong>of</strong> expression guaranteed byArticle 10 § 1 <strong>of</strong> the European Convention on Human Rights 207 . In the judgment in the case <strong>of</strong>Demuth v. Switzerland <strong>of</strong> 5 November 2002, for example, the European Court <strong>of</strong> HumanRights referred to “the legitimate need for the quality and balance <strong>of</strong> programs in general”which may counterbalance the freedom <strong>of</strong> expression; it assessed the lawfulness <strong>of</strong> the refusalto grant a concession with a view to the broadcasting <strong>of</strong> a thematic channel devoted toautomobile issues, taking into account that “audio-visual media are <strong>of</strong>ten broadcast verywidely (...). In view <strong>of</strong> their strong impact on the public, domestic authorities may aim atpreventing a one-sided range <strong>of</strong> commercial television programs on <strong>of</strong>fer” (§ 43).The Court <strong>of</strong> Justice <strong>of</strong> the European Communities has given similar rulings. In twojudgments <strong>of</strong> 25 July 1991 concerning the requirement imposed by the Dutch Mediawet <strong>of</strong> abalanced representation in the media <strong>of</strong> the different social, cultural, religious or philosophicalcomponents <strong>of</strong> Dutch society, the Court <strong>of</strong> Justice acknowledged the compatibility withCommunity law <strong>of</strong> the restriction imposed by that law on the free provision <strong>of</strong> audio-visualservices, by considering that the maintenance <strong>of</strong> the pluralism which that policy in questionseeks to safeguard “is connected with freedom <strong>of</strong> expression, as protected by Article 10 <strong>of</strong>European Convention on Human Rights and Fundamental Freedoms, which is one <strong>of</strong> thefundamental rights guaranteed by the Community legal order” 208 . It followed the same line <strong>of</strong>reasoning in the context <strong>of</strong> the free movement <strong>of</strong> goods. The case concerned the distributionin Austria <strong>of</strong> periodicals published by German publishers but which, on account <strong>of</strong> the prizecompetitions which those periodicals contained, constituted a threat to the diversity <strong>of</strong> theAustrian press. The Court considered that maintenance <strong>of</strong> press diversity may constitute anoverriding requirement in the public interest justifying a restriction on the free movement <strong>of</strong>goods, provided that such restriction remains proportionate to the objective pursued and doesnot constitute a disproportionate restriction on the freedom <strong>of</strong> expression <strong>of</strong> the Germandistributors 209 .The above case law recognizes that the State is free to take measures to ensure that a certaindiversity <strong>of</strong> opinion is maintained, either internally (through the representation <strong>of</strong> differentopinions in the same media), or externally (by preserving a diversity <strong>of</strong> media). The205 See Article 53 <strong>of</strong> the Charcter (level <strong>of</strong> protection).206 See Article 7, §§ 1 and 3 <strong>of</strong> the Draft Treaty establishing a Constitution for Europe.207 Eur. Ct. H.R., Informationsverein Lentia et al. v. Austria, judgment <strong>of</strong> 24 November 1993, § 38; VgT Vereingegen Tierfabriken v. Switzerland, judgment <strong>of</strong> 28 June 2001, § 73.208 ECJ, 25 July 1991, Commission v. Netherlands, 353/89, ECR, p. 4089 (pt. 30); ECJ, 25 July 1991, StichtingCollectieve Antennevoorziening Gouda et al. v. Commissariaat voor de Media, 288/89, ECR, p. 4007 (pt. 23); alsoECJ, 3 February 1993, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media, 148/91, ECR,p. 513 (Recitals 9 and 10).209 ECJ, 26 June 1997, Familiapress, C-368/95, ECR, p. I-3689 (Recitals 18 and 24).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200371legitimacy <strong>of</strong> this objective has been recognized on account <strong>of</strong> the fact that the concern forpluralism is seen as being linked to the freedom <strong>of</strong> expression. It is true that neither theEuropean Court <strong>of</strong> Human Rights nor the Court <strong>of</strong> Justice <strong>of</strong> the European Communities hasso far imposed an obligation on the State to take positive measures with a view to establishingsufficient pluralism in the media for the right <strong>of</strong> the public to sufficiently diversified andpluralist information to be respected. However, in general terms, the respect for freedom <strong>of</strong>expression may in principle require the State to adopt positive measures: “Genuine, effectiveexercise <strong>of</strong> this freedom does not depend merely on the State’s duty not to interfere, but mayrequire positive measures <strong>of</strong> protection, even in the sphere <strong>of</strong> relations betweenindividuals” 210 . More specifically, in the case <strong>of</strong> De Geïllustreerde Pers v. Netherlands, theEuropean Commission <strong>of</strong> Human Rights made reference to a similar obligation for the Stateto combat excessive concentration in the media 211 . And while Article 10 § 1 <strong>of</strong> the EuropeanConvention on Human Rights allows a State party to this instrument to set up a licensingsystem for radio and television, this authority may only be exercised in compliance with therequirements <strong>of</strong> pluralism that characterizes a democratic society 212 .Pluralism <strong>of</strong> the media may therefore be considered as an aspect <strong>of</strong> freedom <strong>of</strong> expression(see in this sense Recommendation (99) 1 <strong>of</strong> the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong>Europe and, more recently, Recommendation 1506(2001) “Freedom <strong>of</strong> expression andinformation in the media in Europe”, adopted on 4 April 2001 by the Parliamentary Assembly<strong>of</strong> the Council <strong>of</strong> Europe: “A pluralist and <strong>independent</strong> media system is also essential fordemocratic development and a fair electoral process. It is thus essential to eliminateoligopolism in the media, and to ensure that the media are not used to gain political power,especially in countries where a mixed public-private system would enable politicalmovements, supported by the private sector, to control all information after elections,especially through radio and television” (par. 12)).On several occasions, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights hasbeen asked to look into the compatibility with the requirements <strong>of</strong> the Charter <strong>of</strong> FundamentalRights <strong>of</strong> the situation that has come about in Italy with the media concentration in thetelevision sector, the combination <strong>of</strong> the control <strong>of</strong> the state television channel (RAI) by theleader <strong>of</strong> the parliamentary majority party - the Board <strong>of</strong> Governors <strong>of</strong> the RAI is appointedby Parliament - and the risk <strong>of</strong> a conflict <strong>of</strong> interests between the role <strong>of</strong> Mr Berlusconi asChairman <strong>of</strong> the Board and his role as private entrepren<strong>eu</strong>r in the media industry at the head<strong>of</strong> the Mediaset group. On 28 January 2003, the Parliamentary Assembly <strong>of</strong> the Council <strong>of</strong>Europe adopted Recommendation 1589 (2003) “Freedom <strong>of</strong> expression in the media inEurope”, in which it notes, “In Italy, the potential conflict <strong>of</strong> interest between the holding <strong>of</strong>political <strong>of</strong>fice by Mr Berlusconi and his private economic and media interests is a threat tomedia pluralism unless clear safeguards are in place, and sets a poor example for youngdemocracies” (par. 12).The present Report is not concerned with the situation <strong>of</strong> fundamental rights in Italy, butsolely with the activities <strong>of</strong> the European Union examined in the light <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights. It will therefore restrict its observations to the latter issue 213 . In theassumption that the situation created in Italy proves incompatible with the pluralism <strong>of</strong> themedia which the institutions <strong>of</strong> the Union and the Member States acting within the scope <strong>of</strong>European Union law must “respect” (Article 11 § 2 <strong>of</strong> the Charter), do the Union institutions210 Eur. Ct. H.R., Ozgur Gundem v. Turkey, judgment <strong>of</strong> 16 March 2000, § 43.211 Report <strong>of</strong> 6 July 1976 (drawn up in accordance with former Article 31 <strong>of</strong> the European Convention on HumanRights), DR 8, p. 5.212 See e.g. application n° 10764/84, DR 49, p. 131.213 The reader is referred to the report drawn up for the attention <strong>of</strong> the Network by the competent Member forItaly <strong>of</strong> the EU Network <strong>of</strong> Independent Experts (ref. CFR-CDF.rappIT2003.doc), as well as the summary Report<strong>of</strong> the Network, containing its conclusions and recommendations (ref. CFR-CDF.ConclusionsENG2003.doc orCFR-CDF.ConclusionsFR2003.doc).CFR-CDF.rep.UE.2003.en

72EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTShave the means to take action? And, if the answer to the first question is yes, may we inferthat such an obligation rests on them?First <strong>of</strong> all, it should be noted that the responsibility for guaranteeing pluralism in the mediacurrently lies with the Member States. The Community legislator intervened in this area withthe adoption <strong>of</strong> Council Directive 89/552/EEC <strong>of</strong> 3 October 1989 on the coordination <strong>of</strong>certain provisions laid down by Law, Regulation or Administrative Action in Member Statesconcerning the pursuit <strong>of</strong> television broadcasting activities 214 , subsequently amended byDirective 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June 1997 215 . ThisDirective is based more particularly on the consideration that “it is essential for the MemberStates to ensure the prevention <strong>of</strong> any acts which may prove detrimental to freedom <strong>of</strong>movement and trade in television programmes or which may promote the creation <strong>of</strong>dominant positions which would lead to restrictions on pluralism and freedom <strong>of</strong> televisedinformation and <strong>of</strong> the information sector as a whole”. The body <strong>of</strong> the Directive, however,does not contain any provision aimed precisely at requiring that the Member States, who aretargeted by the Directive, take certain measures to guarantee the maintenance <strong>of</strong> pluralism intelevision broadcasting, whereas the Directive does contain, for example, detailed provisionson the protection <strong>of</strong> minors (Article 22) or on the right <strong>of</strong> reply (Article 23).As amended by Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June1997, Article 3 § 1 <strong>of</strong> Council Directive 89/552/EEC <strong>of</strong> 3 October 1989 on the coordination<strong>of</strong> certain provisions laid down by Law, Regulation or Administrative Action in MemberStates concerning the pursuit <strong>of</strong> television broadcasting activities provides, “Member Statesshall remain free to require television broadcasters under their jurisdiction to comply withmore detailed or stricter rules in the areas covered by this Directive”. The Preamble <strong>of</strong>Directive 97/36/EC specifies that the Member States may exercise this right with a view toadopting rules concerning “the need to safeguard pluralism in the information industry andthe media, and the protection <strong>of</strong> competition with a view to avoiding the abuse <strong>of</strong> dominantpositions and/or the establishment or strengthening <strong>of</strong> dominant positions by mergers,agreements, acquisitions or similar initiatives; whereas such rules must be compatible withCommunity law” (44 th recital).Where appropriate, it is up to the Community legislator to intervene by amending Directive89/552/EEC in order to oblige Member States to establish a more restrictive framework aimedat maintaining pluralism in the media. Article 26 <strong>of</strong> the Directive puts in place a system <strong>of</strong>periodical evaluation <strong>of</strong> the application <strong>of</strong> the Directive through reports drawn up by theCommission. It is up to the Commission, when drawing up its next report, to decide whetherit wishes to propose such a revision. Article 11 § 2 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights doesnot prevent the Commission from carrying out such a revision. Although it is true that Article11 § 2 <strong>of</strong> the Charter cannot establish any new power or task for the Union (Article 51 § 1 <strong>of</strong>the Charter), it could prevent the institutions <strong>of</strong> the Union from using the powers that havebeen assigned to them to contribute, within the limits <strong>of</strong> these powers, to the preservation <strong>of</strong>pluralism.So long as no such revision has taken place, the responsibility for guaranteeing mediapluralism lies with the Member States. We need to examine whether we could not infer fromArticle 11 § 2 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights an obligation for the Member States, intheir regulation <strong>of</strong> the audio-visual sector on their territory, to take measures that <strong>of</strong>fersufficient guarantees for pluralism, that is to say, to exercise in this sense the power that isgiven to them by Article 3 § 1 <strong>of</strong> Council Directive 89/552/EEC <strong>of</strong> 3 October 1989. Ins<strong>of</strong>ar as214 OJ L 298 <strong>of</strong> 17/10/1989, p. 23.215 Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June 1997 amending CouncilDirective 89/552/EEC on the coordination <strong>of</strong> certain provisions laid down by Law, Regulation or AdministrativeAction in Member States concerning the pursuit <strong>of</strong> television broadcasting activities, OJ L 202 <strong>of</strong> 30/7/1997, p. 60.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200373they transpose Directives 89/552/EEC and 97/36/EC, the Member States must respect theprovisions <strong>of</strong> the Charter, as well as the general principles <strong>of</strong> Union law <strong>of</strong> which the Courtensures the observance. If we consider that positive obligations may be imposed on theMember States in order to ensure respect <strong>of</strong> the fundamental rights recognized in EuropeanUnion law, the answer might have to be yes. “The freedom and pluralism <strong>of</strong> the media shallbe respected” (Article 11 § 2 <strong>of</strong> the Charter) not only by the institutions <strong>of</strong> the Union, but alsoby the Member States which implement Union law, more particularly in the national measuresto transpose Community directives. On this account they would have an obligation toguarantee pluralism and to operate in this sense the margin <strong>of</strong> appreciation that is allowedthem by Directive 89/552/EEC. It is therefore up to the Commission as well as to the otherMember States, in accordance with Articles 226 and 227 EC, to ensure that this obligation isobserved by instituting infringement proceedings before the Court <strong>of</strong> Justice.A similar line <strong>of</strong> reasoning could be followed in the area <strong>of</strong> concentrations. CouncilRegulation (EEC) No 4064/89 <strong>of</strong> 21 December 1989 on the control <strong>of</strong> concentrations betweenundertakings 216 , provides in Article 21 § 3 for an exception to the principle <strong>of</strong> the exclusiveauthority <strong>of</strong> the European Commission to adopt decisions relating to the compatibility <strong>of</strong>Community-wide concentrations with the Common Market rules. This provision states,“Member States may take appropriate measures to protect legitimate interests other than thosetaken into consideration by this Regulation and compatible with the general principles andother provisions <strong>of</strong> Community law”, and it provides that shall in any case be regarded aslegitimate interests “public security, plurality <strong>of</strong> the media and prudential rules”.Member States may therefore prohibit, more particularly in the name <strong>of</strong> media pluralism, anyconcentration between undertakings, even where this has been authorized in advance by theCommission. In making use <strong>of</strong> this right <strong>of</strong>fered by Article 21 § 3 <strong>of</strong> the Regulation onconcentrations, Member States are obliged to respect the fundamental rights that form part <strong>of</strong>the general principles <strong>of</strong> Union law or which are now incorporated in the Charter <strong>of</strong>Fundamental Rights 217 . We may therefore ask ourselves whether, since freedom and pluralism<strong>of</strong> the media figures among these fundamental rights, the Member States could be obliged tocontrol concentrations from the viewpoint <strong>of</strong> this requirement <strong>of</strong> pluralism. In the light <strong>of</strong> theprohibition imposed on Member States <strong>of</strong> infringing the fundamental rights when they takeaction within the scope <strong>of</strong> Community law - or, as the Charter states, when they implement it-, failure to act (to prohibit such concentration in the area <strong>of</strong> information or the media, evenwhere this has been authorized by the European Commission) might be considered as action(imposing on a concentration certain additional conditions in accordance with Communitylaw). The obligation to “respect” media pluralism requires that the authorities take positivemeasures in order to guarantee this, without being able to content themselves with adopting apurely passive attitude.Focused on the question <strong>of</strong> economic concentration, the latter option does not, however,address the problem associated with a conflict <strong>of</strong> interests that arises when a personsimultaneously holds positions that are mutually incompatible because they prevent him fromexercising them in perfect objectivity.Therefore,• the institutions <strong>of</strong> the Union, and in particular the Commission, if they consider itdesirable, have the required powers to formulate rules imposing on the Member Statesto take measures ensuring that pluralism in the media is respected; amending directive89/552/EEC would constitute the most economical way to do so;216 OJ L 257 <strong>of</strong> 21/09/1990, p. 13 (amended version)217 ECJ, 28 October 1975, Rutili, 36/75, ECR, p. 1219 (Recital 32); ECJ, 25 July 1991, Commission v.Netherlands, 353/89, ECR, p. 1089 (Recital 30); ECJ, 18 June 1991, ERT, C-260/89, ECR, p. I-2925 (Recital 43).CFR-CDF.rep.UE.2003.en

74EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS• the Member States are obliged to respect the pluralism <strong>of</strong> the media when theimplement Community law, in accordance with Article 11(2) <strong>of</strong> the Charter; thecompatibility <strong>of</strong> the implementation <strong>of</strong> directive 89/552/EEC should be evaluated alsoin consideration <strong>of</strong> this obligation; so should the attitudes adopted by the MemberStates with respect to the concentration <strong>of</strong> undertakings in the domain <strong>of</strong> the media,including in situations where such concentrations have been authorized by theCommission.Article 12. Freedom <strong>of</strong> assembly and <strong>of</strong> associationThe significant developments <strong>of</strong> the period under scrutiny are dealt with under Article 11 <strong>of</strong>the Charter (Freedom <strong>of</strong> expression and <strong>of</strong> information) with regard to the balance to bestruck between the right to demonstrate and the free movement <strong>of</strong> goods, and under Article 8<strong>of</strong> the Charter (Protection <strong>of</strong> personal data) with regard to the threats against the right torespect for the privacy <strong>of</strong> members <strong>of</strong> groups that are suspected <strong>of</strong> wanting to disrupt publicorder during international summits.Article 13. Freedom <strong>of</strong> the arts and sciencesDecision 1513/2002/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 27 June 2002concerning the sixth framework programme <strong>of</strong> the European Community for research,technological development and demonstration activities, contributing to the creation <strong>of</strong> theEuropean Research Area and to innovation (2002 to 2006), states in its Preamble that theresearch activities carried out within the sixth framework programme “should respectfundamental ethical principles, including those which are reflected in Article 6 <strong>of</strong> the Treatyon European Union and in the Charter <strong>of</strong> fundamental rights <strong>of</strong> the European Union” 218 . Whatthis implied, however, was not made explicit in that decision 219 . Reference was made to anumber <strong>of</strong> instruments regulating scientific research, particularly in the area <strong>of</strong> biomedecine.The Annex <strong>of</strong> the Decision says that “During the implementation <strong>of</strong> this programme and inthe research activities arising from it, fundamental ethical principles including animal welfarerequirements, are to be respected. These include, inter alia, principles reflected in the Charter<strong>of</strong> fundamental rights <strong>of</strong> the European Union, protection <strong>of</strong> human dignity and human life,protection <strong>of</strong> personal data and privacy as well as the environment in accordance withCommunity law and, where relevant, international conventions, such as the Declaration <strong>of</strong>Helsinki, the Council <strong>of</strong> Europe Convention on Human Rights and Biomedicine signed inOviedo on 4 April 1997 and the Additional Protocol on the Prohibition <strong>of</strong> Cloning HumanBeings signed in Paris on 12 January 1998, the UN Convention on the Rights <strong>of</strong> the Child, theUniversal Declaration on the Human Genome and Human Rights adopted by UNESCO, andthe relevant World Health Organisation (WHO) resolutions, the Amsterdam Protocol onAnimal Protection and Welfare; and current legislation, regulations and ethical guidelines incountries where the research will be carried out.” These principles are relevant particularly tothe first thematic priority <strong>of</strong> the programme, comprising life sciences, genomics andbiotechnology for health.Article 18 <strong>of</strong> the Convention <strong>of</strong> the Council <strong>of</strong> Europe on Human Rights and biomedecinedoes not take position on the question whether research on in vitro embryos is admissible ornot. It leaves a choice to the States parties. It does state that where such research is authorizedby law, an adequate protection <strong>of</strong> the embryo must be ensured 220 . It also states that the218 OJ L 232 <strong>of</strong> 29.8.2002, p. 1.219 Article 3 simply states that : “All the research activities carried out under the sixth framework programme mustbe carried out in compliance with fundamental ethical principles”.220 Article 2 <strong>of</strong> the Convention on Human Rights and biomedecine should also be taken into account, according towhich the interests <strong>of</strong> the human being should be recognized the primacy above the interests <strong>of</strong> society or science.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200375constitution <strong>of</strong> human embryos for the purpose <strong>of</strong> scientific research is prohibited. Thus, it isnot in violation <strong>of</strong> the Convention to authorize research on human embryos which haveoriginally been constituted in vitro with a view to procreation but for which there is noparental project remaining (supernumerary embryos), and which therefore would bedestroyed.According to the understanding <strong>of</strong> this rapport<strong>eu</strong>r, after some Member States objected to theEuropean Community funding research on human embryonic stem cells – a form <strong>of</strong> researchwhich is prohibited in certain Member States –, the funding <strong>of</strong> this research was suspendeduntil an agreement could be reached on the conditions under which such research could befunded by the Community : it was agreed, at the Council meeting <strong>of</strong> 30 September 2002, thatthe moratorium would last until 31 December 2003. On 9 July 2003, the Commissiontherefore proposed to impose strict conditions on the funding <strong>of</strong> human embryonic stem cellresearch 221 . Clearly, research will not be supported by Community funds where it is prohibitedby the country where it takes place. Even where such research is admitted, however, strictconditions are imposed to the funding <strong>of</strong> the research involving human embryonic stem cells.The conditions proposed by the Commission are closely inspired by the Opinion n°15 givenon that issue by the European Group on Ethics in Science and New Technologies on 14November 2000. These conditions are summarized in the following paragraph which theCommission proposed to insert after the 17 th paragraph <strong>of</strong> annex I to Decision 2002/834/EC :In order to be funded by the Community, research projects involving the procurement<strong>of</strong> stem cells from human embryos must also meet the following conditions:(a) prior to the start <strong>of</strong> research activities, participants must obtain ethical advice atlocal or national level in the countries where the research will be carried out;(b) the human embryos used for the procurement <strong>of</strong> stem cells must have been createdbefore 27 June 2002 [the date <strong>of</strong> the adoption <strong>of</strong> the Sixth Framework Programme] as aresult <strong>of</strong> medically-assisted in vitro fertilisation designed to induce pregnancy, andwere no longer to be used for that purpose [therefore only the “supernumerary embryosare concerned, for which there is no parental project anymore and which thereforewould be destroyed in any event][ 222 ];(c) the project must serve particularly important research aims to advance scientificknowledge in basic research or to increase medical knowledge for the development <strong>of</strong>diagnostic, preventive or therap<strong>eu</strong>tic methods to be applied to humans;(d) all other alternative methods (including existing or adult stem cell lines) must havebeen examined and demonstrated not to be sufficient for the purposes <strong>of</strong> the research inquestion;(e) the free, express, written and informed consent <strong>of</strong> the donor(s) should be providedin accordance with national legislation prior to the start <strong>of</strong> the research activities;(f) no monetary compensation or other benefit in kind must be granted or promised forthe donation;(g) the protection <strong>of</strong> personal data, including the genetic data, <strong>of</strong> the donor(s) must beensured;Therefore, even research which is not in principle unacceptable under the Convention, may have to be strictlyregulated to take into account the supremacy <strong>of</strong> the interests <strong>of</strong> the human being.221 Proposal for a Council Decision amending decision 2002/834/EC on the specific programme for research,technological development and demonstration: "Integrating and strengthening the European research area" (2002-2006), COM(2003)390 final <strong>of</strong> 9.7.2003.222 As the Commission explained further in its Amended proposal presented on 26 November 2003 : “In order toallay fears that Community funding might indirectly encourage the production <strong>of</strong> embryos by in vitro fertilisation(IVF) over and above the number required, and to send out a political signal, the Commission is proposing thatonly supernumerary embryos created before 27 June 2002 (date <strong>of</strong> adoption <strong>of</strong> the 6 th Framework Programme) canbe used”.CFR-CDF.rep.UE.2003.en

76EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS(h) where appropriate, the participants in research projects must follow quality andsafety standards on donation, procurement and storage in accordance to the state <strong>of</strong> theart, in order to ensure in particular the traceability <strong>of</strong> these stem cells.The scientific evaluation and the ethical review organised by the Commission <strong>of</strong> theresearch proposals shall include verification <strong>of</strong> these conditions. The conditions set outin point (c) and (d) shall be assessed during the scientific evaluation.The opinions <strong>of</strong> the European Group on Ethics in Science and New Technologies, andin particular those relating to research involving the use <strong>of</strong> human embryonic stem cellswill be taken into account.The participants in research projects should use their best efforts to make the newlyderived human embryonic stem cell lines available to the scientific community on anon-pr<strong>of</strong>it making basis for research purposes.A list <strong>of</strong> research projects involving the use <strong>of</strong> all types <strong>of</strong> human embryonic stem cellsfunded under the sixth framework programme will be published yearly by theCommission.In the light <strong>of</strong> the opinion <strong>of</strong> the European Parliament, which it delivered on 19 November2003 and which included 18 amendments 223 , the Commission amended slightly its initialproposal 224 . In particular, the amended proposal contained the requirement that the donor musthave given his/her consent in accordance with national legislation prior to the procurement <strong>of</strong>the cells and not simply prior to the start <strong>of</strong> the research; and the Commission confirmed thatin order to contribute to optimising the use <strong>of</strong> human embryonic stem cell lines, it will supportthe initiative to set-up <strong>of</strong> a European registry – for which, in fact, a call for proposals had beenlaunched already months ago.It would not be advisable for the EU Network <strong>of</strong> Independent Experts on Fundamental Rightsto take a position on the issues concerning fundamental rights which are raised by this debate,which because <strong>of</strong> its complexity requires a much more thorough examination than the onewhich can be <strong>of</strong>fered here. The initial proposal <strong>of</strong> the Commission, and its amended proposal,do appear to conform to the minimal standards imposed by the international law <strong>of</strong> humanrights concerning research performed on human embryonic stem cells, which has the effect <strong>of</strong>destroying the embryo. It may be advisable however for the Commission to further detailwhat procedural guarantees are implied by the notion <strong>of</strong> express, free and informed consent,given by the donors <strong>of</strong> the embryos in written form, to such use <strong>of</strong> supernumerary embryos.Inspiration should be sought from the consequences which the Steering Committee onBioethics <strong>of</strong> the Council <strong>of</strong> Europe (CDBI) has drawn in this context from Article 5 <strong>of</strong> theConvention on Human Rights and Biomedecine. In particular, it would be important to furtherdetail the nature <strong>of</strong> the information which should be communicated to the donors (includinginformation <strong>of</strong> legal nature, relating to the consequences <strong>of</strong> the consent which is sought, butalso information relating to the ends <strong>of</strong> the research which can be performed on humanembryonic stem cells), the mode <strong>of</strong> communication <strong>of</strong> this information (in a language simpleand understandable, and in a non-directing fashion), and perhaps, the time frame between thecommunication <strong>of</strong> the information and the expression <strong>of</strong> consent 225 .An important question which the Steering Committee on Bioethics rightly emphasizes 226concerns the relation between the debate on the conditions <strong>of</strong> research carried out on stemcells <strong>of</strong> supernumerary human embryos and the fundamental freedoms <strong>of</strong> movement andprovision <strong>of</strong> services. In countries that impose an absolute ban on that kind <strong>of</strong> research, can223 Rapp. P. Liese, A5-0369/2003.224 Amended proposal for a Council Decision amending decision 2002/834/EC on the specific programme forresearch, technological development and demonstration: "Integrating and strengthening the European researcharea" (2002-2006), COM(2003)749 final <strong>of</strong> 26.11.2003.225 CBDI, Report <strong>of</strong> the the Working Party on the Protection <strong>of</strong> the Human Embryo and Fetus (CDBI-CO-GT3), 19June 2003, esp. III.D.226 Above-mentioned report, pp. 27-28.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200377the import <strong>of</strong> embryonic stem cells be prohibited as well 227 ? Should access to certain materialproduced from such research conducted in countries where this is permitted be restricted tocountries where it is prohibited, or should restrictions be imposed on the use <strong>of</strong> techniquesderived from this research? What are the consequences, for the choice by laboratories <strong>of</strong> theircountry <strong>of</strong> establishment, <strong>of</strong> the differing approaches <strong>of</strong> Member States? These questionsnaturally go beyond the question <strong>of</strong> the conditions that may be imposed on Communityfunding for research on embryonic stem cells, yet they lead us to examine the limits that everycountry encounters in the choices it makes in a context <strong>of</strong> free movement.Article 14. Right to educationWe refer to the commentary on Article 26 <strong>of</strong> the Charter (Integration <strong>of</strong> persons withdisabilities) as regards the right to education <strong>of</strong> children with disabilities, as guaranteed byArticle 15 § 1 <strong>of</strong> the revised European Social Charter. The issue <strong>of</strong> the access <strong>of</strong> Romanychildren to education is discussed under Article 21 <strong>of</strong> the Charter (Non-discrimination).Article 15. Freedom to choose an occupation and right to engage in workRight <strong>of</strong> access to employment without discrimination for nationals <strong>of</strong> Member StatesIn a judgment <strong>of</strong> 6 November 2003 228 , the European Court <strong>of</strong> Justice confirmed its broadreading <strong>of</strong> the concept <strong>of</strong> « worker » under Article 39 EC : there exists an employmentrelationship where a person performs services for and under the direction <strong>of</strong> another person inreturn for which he receives remuneration, and the fact that employment is <strong>of</strong> short duration –it has lasted for two months and a half in the case which led to the referral by an Austriancourt – does not per se exclude the application <strong>of</strong> this provision <strong>of</strong> the Treaty. According tothe Court, all that is required for a person to be treated as a worker under EC law is thathe/she pursues an activity which is « effective and genuine, to the exclusion <strong>of</strong> activities onsuch a small scale as to be regarded as purely marginal and accessory » (Recital 26). TheCourt insists on an objective analysis <strong>of</strong> this condition by the national authorities, so thatcircumstances which could lead to raise suspicions about the true intent <strong>of</strong> the « worker » anda possible abuse <strong>of</strong> his/her right under EC law to be treated accordingly are irrelevant.Article 7(2) <strong>of</strong> Regulation (EEC) No 1612/68 <strong>of</strong> the Council <strong>of</strong> 15 October 1968 on freedom<strong>of</strong> movement for workers within the Community 229 provides that workers from anotherMember State have the right to the same social advantages as national workers. According tothe case-law <strong>of</strong> the Court, assistance for university education is included in the notion <strong>of</strong>« social advantage », therefore a national <strong>of</strong> a Member State other than the host Member Statewho has engaged in occupational activity in that host State should be recognized suchassistance as would nationals in the same situation, « provided that there is continuitybetween the previous occupational activity and the studies pursued » (Recital 35). The Courtrecalls however that « this condition cannot be imposed on a migrant worker who hasinvoluntarily become unemployed and is obliged by conditions on the labour market toundertake occupational retraining » (Recital 35), and it considers, with respect to the facts <strong>of</strong>the case, that « the mere fact that a contract <strong>of</strong> employment is from the outset concluded as afixed-term contract cannot necessarily lead to the conclusion that, once that contract expires,227 See the German Act <strong>of</strong> 28 June 2002: Gesetz zur Sicherstellung des Embryonenschutzes im Zusammenhand mitEinfuhr und Verwendung menschlicher embryonaler Stammzellen (Stammzellgesetz), commented on in the Reporton the Situation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002, pp. 42-43.228 ECJ, 6 November 2003, Franca Ninni-Orasche, C-413/01, nyr.229 OJ, English Special Edition 1968 (II), p. 475, amended by Council Regulation (EEC) No 2434/92 <strong>of</strong> 27 July1992 (OJ 1992 L 245, p. 1).CFR-CDF.rep.UE.2003.en

78EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSthe employee concerned is automatically to be regarded as voluntarily unemployed » (Recital42).It is notable that, when considering the alleged abuse <strong>of</strong> right committed by the applicant inthe proceedings before the national court, the Court answers « account should also be taken <strong>of</strong>the fact that the appellant in the main proceedings appears to have entered the host MemberState not with the sole aim <strong>of</strong> benefiting from the system <strong>of</strong> student assistance in that State butin order to live there with her husband, who is a national <strong>of</strong> that State, and <strong>of</strong> the fact that sheis lawfully resident there » (Recital 47). Although it is not cited by the Court, the latterstatement seems to refer to the Martinez Sala judgment <strong>of</strong> 1998, in which the Court hadconsidered that the national <strong>of</strong> a Member State, falling under the scope <strong>of</strong> application rationemateriae <strong>of</strong> the EC Treaty, should not be discriminated on the grounds <strong>of</strong> his/her nationality,even with respect to the « social advantages » in the sense <strong>of</strong> Article 7(2) <strong>of</strong> Regulation1612/68 230 .Under Article 39(4) EC, employment in the public service is excepted from the principle <strong>of</strong>non-discrimination on the grounds <strong>of</strong> nationality between citizens <strong>of</strong> the Union in the field <strong>of</strong>employment. In a judgment <strong>of</strong> 30 September 2003, the European Court <strong>of</strong> Justice has made arestrictive reading <strong>of</strong> the exception, considering that the exception could not be invokedwhere the employment only very occasionally leads to participate, directly or indirectly, in theexercise <strong>of</strong> powers conferred by public law or to exercise duties designed to safeguard thegeneral interests <strong>of</strong> the State or <strong>of</strong> other public authorities, according to the definition <strong>of</strong> theexception in the case-law <strong>of</strong> the Court 231 . Indeed, the Court considers that « the posts <strong>of</strong>master and chief mate in the Spanish merchant navy are posts in which exercise <strong>of</strong> the duty <strong>of</strong>representing the flag State is, in practice, only occasional » 232 , to reject the argument <strong>of</strong> Spainaccording to which the posts could be reserved for perons having the Spanish nationalityins<strong>of</strong>ar as « the floating town which is the ship requires the presence on board <strong>of</strong> arepresentative <strong>of</strong> the public power (…), who is the captain » 233 . The judgment is based insteadon the reasoning thatrecourse to the derogation from the freedom <strong>of</strong> movement for workers provided for byArticle 39(4) EC cannot be justified solely on the ground that rights under powersconferred by public law are granted by national law to holders <strong>of</strong> the posts in question.It is still necessary that such rights are in fact exercised on a regular basis by thoseholders and do not represent a very minor part <strong>of</strong> their activities. Indeed, (…), thescope <strong>of</strong> that derogation must be limited to what is strictly necessary for safeguardingthe general interests <strong>of</strong> the Member State concerned, which cannot be imperilled ifrights under powers conferred by public law are exercised only sporadically, evenexceptionally, by nationals <strong>of</strong> other Member States (Recital 44).The judgment remains in line with the functional conception <strong>of</strong> the notion <strong>of</strong> « publicadministration » found in Article 39(4) EC – the outcome is not based on the fact that theemployment positions were with a private legal person, i.e. the owner <strong>of</strong> the ship (see Recital43) –, however it gives a priority to the principle <strong>of</strong> non-discrimination on the basis <strong>of</strong>nationality. A broader reading <strong>of</strong> Article 39(4) EC, which dates from the original Treaty <strong>of</strong>Rome and thus also predates the notion <strong>of</strong> a European citizenship, would seem difficult toreconcile with the nature <strong>of</strong> the rights afforded to the European citizen, who is recognized in230 See now, codifying this case-law, Article 21(1) <strong>of</strong> the Amended proposal for a Directive <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council on the right <strong>of</strong> citizens <strong>of</strong> the Union and their family members to move and residefreely within the territory <strong>of</strong> the Member States, COM(2003)199 final (commented hereafter, under Article 45 <strong>of</strong>the Charter).231 ECJ, 3 July 1986, Lawrie Blum, C-66/85, ECR 2121.232 ECJ, 30 September 2003, Colegio de Oficiales de la Marina Mercante Española, C-405/01, nyr.233 Opinion <strong>of</strong> Advocate General C. Stix-Hackl, 30 June 2003 (un<strong>of</strong>ficial translation, by the author <strong>of</strong> this report).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200379particular to right to vote and to be elected in local or municipal elections, whatever his/hernationality, in his/her State <strong>of</strong> residence.Status <strong>of</strong> third-country nationalsArticle 15 § 3 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights provides, “Nationals <strong>of</strong> third countrieswho are authorized to work in the territories <strong>of</strong> the Member States are entitled to workingconditions equivalent to those <strong>of</strong> citizens <strong>of</strong> the Union”. Following the political agreementsecured by the Council on 5 June 2003 234 on the Proposal for a Council Directive concerningthe status <strong>of</strong> third-country nationals who are long-term residents 235 , third-country nationalsshould be able to acquire the status <strong>of</strong> long-term residents after five years <strong>of</strong> residence. Theprincipal acquis <strong>of</strong> the text is the fact that long-term residents shall enjoy equal treatment withnationals as regards: access to employment and self-employed activity, provided suchactivities do not entail even occasional involvement in the exercise <strong>of</strong> public authority, andconditions <strong>of</strong> employment and working conditions, including conditions regarding dismissaland remuneration; education and vocational training, including study grants in accordancewith national law; recognition <strong>of</strong> diplomas, certificates and other pr<strong>of</strong>essional qualifications inaccordance with relevant national procedures; social security, social assistance and socialprotection as defined by national law; tax benefits; access to goods and services and thesupply <strong>of</strong> goods and services made available to the public, including access to procedures forthe allocation <strong>of</strong> housing.Member States have been allowed a wide margin <strong>of</strong> appreciation. A Member State mayrestrict such equal treatment with its nationals in the area <strong>of</strong> access to employment or selfemploymentif, in accordance with its national law or Community law in force, suchemployment or self-employment is reserved for its nationals or for EU or EEA citizens. Theclause that provides for this exception strongly limits the right <strong>of</strong> ordinary foreigners, andparticularly so when they wish to exercise their right to free movement within the Union. Inthis case, the second State <strong>of</strong> residence may examine the situation <strong>of</strong> its labour market andapply its national procedures concerning the requirements for admission to employment or theexercise <strong>of</strong> self-employed activity. It may also, “for reasons connected with employmentmarket policy”, give preference to Union citizens, third-country nationals where this isprovided for by Community law, as well as to third-country nationals residing legally andreceiving unemployment benefit in the Member State concerned. Finally, it may restrict thetotal number <strong>of</strong> persons qualifying for a residence permit, on condition that the admission <strong>of</strong>third-country nationals is already subject to such restrictions in accordance with the law inforce at the moment <strong>of</strong> adoption <strong>of</strong> the Directive.Article 16. Freedom to conduct a businessNo significant new developments were identified under this provision <strong>of</strong> the Charter duringthe period under scrutiny.Article 17. Right to propertyIn a judgment <strong>of</strong> 10 July 2003 236 , the European Court <strong>of</strong> Justice considered that the choicemade by the United Kingdom authorities, in the implementation <strong>of</strong> Council Directive91/67/EEC <strong>of</strong> 28 January 1991 concerning the animal health conditions governing the placing234 The text was formally adopted by the Council on 25 November 2003.235 COM(2001)127 final, OJ n° C 240 E <strong>of</strong> 28/8/2001, p. 79.236 ECJ, 10 July 2003, Booker Aquaculture Ltd., Joined Cases C-20/00 and C-64/00, nyr.CFR-CDF.rep.UE.2003.en

80EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSon the market <strong>of</strong> aquaculture animals and products 237 , as amended by Council Directive93/54/EEC <strong>of</strong> 24 June 1993 introducing minimum Community measures for the control <strong>of</strong>certain fish diseases 238 , to order the immediate destruction and slaughter <strong>of</strong> infected fishwithout provided for any form <strong>of</strong> compensation <strong>of</strong> the owner, does not constitute adisproportionate and intolerable interference impairing the very substance <strong>of</strong> the right toproperty,in violation <strong>of</strong> the fundamental rights protected in the legal order <strong>of</strong> the EuropeanCommunity. The Court emphasized in this respect that « the measures referred to do notdeprive farm owners <strong>of</strong> the use <strong>of</strong> their fish farms, but enable them to continue to carry ontheir activities there » (Recital 80), and that the business <strong>of</strong> a fish farm carries commercialrisks which the exploitant must be aware <strong>of</strong> (Recital 83).Article 18. Right to asylumThe Dublin Convention <strong>of</strong> 15 June 1990 determining the Member State responsible forexamining applications for asylum lodged in one <strong>of</strong> the Member States <strong>of</strong> the EuropeanCommunities was aimed at establishing the responsibility <strong>of</strong> one single Member State forprocessing an application for asylum. This Convention has been transcribed into aRegulation 239 , following the transfer to the European Community <strong>of</strong> powers in the area <strong>of</strong>asylum and immigration by the Amsterdam Treaty, which came into effect on 1 May 1999.The evaluation by the Commission <strong>of</strong> the mechanism put in place by the Dublin Conventionhas, however, highlighted its limitations, while concerns over the responsibility placed on theStates forming the external borders <strong>of</strong> the Union remain. Moreover, the European Court <strong>of</strong>Human Rights has emphasized that the fact that one Member State has been made responsiblefor processing applications for asylum lodged in the European Union does not exempt theMember State within whose jurisdiction the asylum-seeker is residing from ensuring that,when sending this person back to the State responsible for processing his application, it doesnot indirectly subject him to the risk <strong>of</strong> ill-treatment 240 . As the Court considers,The Court finds that the indirect removal in this case to an intermediary country,which is also a Contracting State, does not affect the responsibility <strong>of</strong> the UnitedKingdom to ensure that the applicant is not, as a result <strong>of</strong> its decision to expel,exposed to treatment contrary to Article 3 <strong>of</strong> the Convention. Nor can the UnitedKingdom rely automatically in that context on the arrangements made in the DublinConvention concerning the attribution <strong>of</strong> responsibility between European countriesfor deciding asylum claims. Where States establish international organisations, ormutatis mutandis international agreements, to pursue co-operation in certain fields <strong>of</strong>activities, there may be implications for the protection <strong>of</strong> fundamental rights. It wouldbe incompatible with the purpose and object <strong>of</strong> the Convention if Contracting Stateswere thereby absolved from their responsibility under the Convention in relation tothe field <strong>of</strong> activity covered by such attribution (see e.g. Waite and Kennedy v.Germany judgment <strong>of</strong> 18 February 1999, Reports 1999, § 67). The Court notes thecomments <strong>of</strong> the UNHCR that, while the Dublin Convention may pursue laudableobjectives, its effectiveness may be undermined in practice by the differingapproaches adopted by Contracting States to the scope <strong>of</strong> protection <strong>of</strong>fered.237 OJ 1991 L 46, p. 1.238 OJ L 175, p. 23.239 Council Regulation No 343/2003 <strong>of</strong> 18 February 2003 establishing the criteria and mechanisms for determiningthe Member State responsible for examining an asylum application lodged in one <strong>of</strong> the Member States by a thirdcountrynational, OJ L50 <strong>of</strong> 25/2/2003, p. 1 and Commission Regulation No 1560/2003 laying down detailed rulesfor the application <strong>of</strong> Regulation No 343/2003, OJ L222, p. 3.240 Eur. Ct. H.R. (3 rd section), T.I. v. United Kingdom (application no 43844/98), decision <strong>of</strong> 7 March 2000 (SriLankan asylum seeker whose application for asylum has been rejected by the German authorities, subsequentlylodged an application for asylum in the United Kingdom where he arrived clandestinely).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200381Minimum standards for the reception <strong>of</strong> asylum seekers in the Member StatesThe Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and its MemberStates in 2002 has already commented on Council Directive 2003/9/EC <strong>of</strong> 27 January 2003laying down minimum standards for the reception <strong>of</strong> asylum seekers in the Member States 241 .We will therefore be brief on this text. The Directive operates a minimum harmonization <strong>of</strong>the laws <strong>of</strong> the Member States. The objective <strong>of</strong> limiting “secondary” movements <strong>of</strong> asylumseekers through an approximation <strong>of</strong> national laws is not likely to be achieved, taking intoaccount the great flexibility <strong>of</strong> the obligations undertaken by the Member States. The textdoes not apply to temporary protection but merely to conventional asylum seekers and theirfamily members, even if the Member States are free to extend it to subsidiary protection(Article 3). Asylum seekers should be informed <strong>of</strong> the benefits to which they are entitled and<strong>of</strong> the obligations with which they must comply within 15 days after they have lodged theirapplication for asylum, and should be provided with information on organizations thatprovide specific legal assistance or health care, in writing and in a language that the applicantscan understand.In principle, Member States can authorize asylum seekers to move freely within their territoryor within an area assigned to them by that State. Nevertheless, for reasons <strong>of</strong> public interest orpublic order, Member States may decide on the residence <strong>of</strong> the asylum seeker and may evenconfine him to a particular place or within an assigned area, without affecting the“unalienable sphere <strong>of</strong> his private life” (Article 7 § 1). They may even make provision <strong>of</strong> thematerial reception conditions subject to actual residence <strong>of</strong> the applicants in a specific placeand grant applicants temporary permission to leave this place (Article 7, §§ 4 and 5). Anydecision to refuse material reception conditions or a decision to restrict the free movement <strong>of</strong>asylum seekers may be the subject <strong>of</strong> an appeal.Certain guarantees are given to asylum seekers, in the form <strong>of</strong> material reception conditionsenabling them to subsist in reasonable living conditions, in kind or in the form <strong>of</strong> financialallowances or vouchers. The allowances must be sufficient to enable the applicants to subsist.The material reception conditions will be guaranteed in particular to persons with specificneeds (unaccompanied minors, pregnant women, disabled people, etc), including applicantsbeing held in detention. The same applies for the provisions aimed at preserving family unity,medical examinations and health care, access to education and vocational training, whether ornot the applicants have a right to employment. The Directive does indeed provide thatMember States may deny asylum seekers access to the labour market during a particularperiod <strong>of</strong> time. Such a decision may be reviewed after one year if no decision has been takenconcerning the application for asylum. Member States are obliged to provide asylum seekerswith housing (premises, accommodation centres, hotels, private houses) in order to protecttheir family and private life. In any case, the possibility <strong>of</strong> communicating with legal advisers,non-governmental organizations, the United Nations High Commissioner for Refugees mustbe guaranteed to them.From the point <strong>of</strong> view <strong>of</strong> the requirements <strong>of</strong> international law on human rights, it is thesituation <strong>of</strong> minors that appears to be the most problematical. Several provisions <strong>of</strong> Directive2003/9/EC are devoted to the situation <strong>of</strong> minors, whose specific situation has been taken intoaccount 242 . However, the possibility <strong>of</strong> detaining asylum-seeking minors at other thanspecialized centres subsists, which, from the point <strong>of</strong> view <strong>of</strong> Article 3 § 1 <strong>of</strong> the UnitedNations Convention on the Rights <strong>of</strong> the Child, remains problematical 243 .241 OJ L 31 <strong>of</strong> 6/2/2003, p. 18. Unlike Denmark and Ireland, the United Kingdom marked its intention toparticipate in this instrument.242 See Articles 10 (schooling and education <strong>of</strong> minors), 18 (minors) and 19 (unaccompanied minors).243 See the Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002,pp. 75-76.CFR-CDF.rep.UE.2003.en

82EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSDetermination <strong>of</strong> the status <strong>of</strong> refugees or <strong>of</strong> persons qualifying for subsidiary protectionThe proposal for a Directive on minimum standards for the qualification and status <strong>of</strong> thirdcountry nationals and stateless persons as refugees or as persons who otherwise needinternational protection has not yet been brought to a successful conclusion 244 , even though apolitical agreement was reached by the Council on 28 November 2002. One <strong>of</strong> the mainobstacles is the refusal by several Member States to align the status <strong>of</strong> persons qualifying forsubsidiary protection with that <strong>of</strong> conventional refugees. Access to employment and socialprotection, as well as the right to family r<strong>eu</strong>nification are the main aspects at issue. Anotherproblem concerns the clauses on cessation <strong>of</strong> protection. On the one hand, with regard to thecessation <strong>of</strong> refugee status, these clauses are determined exhaustively by the GenevaConvention <strong>of</strong> 28 July 1951. On the other hand, the protection <strong>of</strong>fered by a Member State byvirtue <strong>of</strong> Article 3 <strong>of</strong> the European Convention on Human Rights is an absolute protection,prohibiting expulsion to the borders <strong>of</strong> a country where the person in question risks an attempton his life or treatment contrary to Article 3 <strong>of</strong> the Convention.Definition <strong>of</strong> minimum standards on procedures for granting and withdrawing refugee statusThe definition <strong>of</strong> minimum standards on procedures in Member States for granting andwithdrawing refugee status is also the subject <strong>of</strong> a proposal for a Directive, called Directiveon “asylum procedures” 245 . One <strong>of</strong> the issues raised by this proposal is that <strong>of</strong> the so-called“safe” countries, whether the country <strong>of</strong> origin <strong>of</strong> the asylum seeker or a country which hepassed in transit and where he could have applied for asylum. Pending the adoption <strong>of</strong> thisproposal, Austria lodged an initiative with a view to the adoption <strong>of</strong> a Council Regulationestablishing the criteria for determining the States which qualify as safe third States for thepurpose <strong>of</strong> taking the responsibility for examining an application for asylum lodged in aMember State by a third country national and drawing up a list <strong>of</strong> European safe thirdStates 246 . The scope would <strong>of</strong> course be confined to European States only 247 , yet the proposedRegulation would nevertheless introduce the principle <strong>of</strong> identifying “safe countries” in theCommunity order. This initiative, however, was rejected by the European Parliament inplenary session on 24 September 2003.The compromise that is sought on this same question by the proposal for a Council Directiveon minimum standards on procedures in Member States for granting and withdrawing refugeestatus has so far left Member States with ample freedom <strong>of</strong> action in this matter. The freedom<strong>of</strong> States to designate a country as “safe” is, however, limited by criteria enumerated in theAnnexes which detail the elements <strong>of</strong> this “safety” 248 . Moreover, the text contains two clauseswhich for the “safe third country” (Article 28 - Application <strong>of</strong> the safe third country concept)244 COM(2001)510 <strong>of</strong> 12 September 2001.245 COM(2000)578 <strong>of</strong> 20/9/2000 and COM(2002)326 final <strong>of</strong> 18/6/2002.246 OJ C17 <strong>of</strong> 24/1/2003, p. 6. The text will be repealed when the Directive is adopted.247 The list <strong>of</strong> third countries in Europe that are considered safe includes the twelve countries that are candidatesfor accession to the Union, as well as Norway, Iceland and Switzerland. Only Switzerland would continue to figureon this list. Since the signature <strong>of</strong> the accession treaties on 16 April 2003 in Athens by the ten candidate countries,the so-called “Dublin II” Regulation and the Schengen acquis will apply in those countries. Romania and Bulgariawill not be covered by the regulation until the Council has adopted a decision “at a later date” (Article 6 § 2). Asregards Norway and Iceland, under the Dublin II Regulation and the Schengen acquis, the Regulation will alsoapply to them as soon as those countries have notified that they accept the contents there<strong>of</strong> and they will ensure itstransposition into their national law.248 Annex I concerns the identification <strong>of</strong> safe third countries. It is stipulated, “Observance <strong>of</strong> the standards for thepurpose <strong>of</strong> designating a country as a safe third country also includes provision by that country <strong>of</strong> effectiveremedies that guarantee these foreign nationals or stateless persons from being removed in breach <strong>of</strong> Article 3 <strong>of</strong>the European Convention or Article 7 <strong>of</strong> the International Covenant and Article 3 <strong>of</strong> the Convention againstTorture.” It is important to emphasize that, in such a context, “effective remedies” must suspend the decision toremove a person from the national territory, in other words, that a removal order cannot be carried out until an<strong>independent</strong> - in principle judicial - authority has had the opportunity to rule on the absence <strong>of</strong> risk associated withthe removal.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200383and for the “safe country <strong>of</strong> origin” (Article 31 – Application <strong>of</strong> the safe country <strong>of</strong> originconcept) respectively are aimed at guaranteeing that the identification <strong>of</strong> countries that areconsidered safe shall never constitute an absolute presumption with regard to the situation <strong>of</strong>each individual asylum seeker. The Justice and Home Affairs Council <strong>of</strong> 2 and 3 October2003 endorsed the principle <strong>of</strong> a list <strong>of</strong> safe third countries without being unanimous yet onthe conditions and criteria to be adopted for the establishment <strong>of</strong> such a list. For the rest, theobservations formulated on the text in preparation by the EU Network <strong>of</strong> Independent Expertson Fundamental Rights in the Report on the Situation <strong>of</strong> Fundamental Rights in the EuropeanUnion and its Member States in 2002 are still relevant today 249 .Processing <strong>of</strong> asylum seekers outside the borders <strong>of</strong> the UnionOn 10 March 2003, the United Kingdom, through its Prime Minister, proposed to externalizethe processing <strong>of</strong> asylum applications. The proposal was meant to develop a “new approach”to asylum issues by reducing the number <strong>of</strong> incoming asylum seekers on European Unionterritory by keeping them outside the Union. It therefore aims to establish “regional protectionareas” 250 close to the country <strong>of</strong> origin <strong>of</strong> the asylum seekers and to set up transit processingcentres situated near the external borders <strong>of</strong> the Union 251 . These two instruments would thusmake it possible to externalize the processing <strong>of</strong> asylum applications. These protection areasin third States would receive the asylum seekers, who would be transferred there upon theirarrival in a Member State. Their applications would be processed at these centres, which arerun by the International Organization for Migration under the supervision <strong>of</strong> the UnitedNations High Commissioner for Refugees. Persons who have been granted refugee status willbe assigned to a Member State according to a fair quota and distribution system yet to bedefined. The others would be returned to their country <strong>of</strong> origin or would qualify fortemporary protection until the situation in their country <strong>of</strong> origin has improved.The United Nations High Commissioner for Refugees reacted to this proposal at the informalCouncil at Veria on 28 and 29 March 2003 252 . The UNHCR found that there was a need toupdate the Geneva instrument and expressed the wish for a relaunch <strong>of</strong> the protectionmechanisms called “Convention Plus” 253 , aimed at guaranteeing a better functioning <strong>of</strong> theGeneva Convention and developing modernized policies despite the diversion <strong>of</strong> theprocedures. This relaunch would be embodied in the conclusion <strong>of</strong> special agreementscomplementing the Geneva Convention. In this perspective, the UNHCR was not opposed tothe setting up <strong>of</strong> “closed centres” allowing faster processing and simplified procedures. Onthe other hand, he considered that the reception centres should be situated within theEuropean Union and that they should be reserved solely for economic migrants coming fromsafe third countries.249 See the Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002,pp. 153-155.250 For example in Turkey, Iran, Morocco or Northern Somalia.251 For example in Romania, Ukraine or Albania.252 UNHCR, New approaches on Asylum-Migrations issues, Statement <strong>of</strong> High Commissionner R. Lubbers, Veria,Greece, March 2003.253 The latter may be summarized as follows: firstly, the conclusion <strong>of</strong> special agreements with a view todeveloping plans <strong>of</strong> action in order to respond more effectively and foreseeably to massive influxes; targeting <strong>of</strong>development aid in order to ensure a fairer distribution <strong>of</strong> the burden and to promote the independence <strong>of</strong> refugeesand returnees, whether in the host countries or communities by facilitating local integration or in the countries <strong>of</strong>origin in the context <strong>of</strong> reintegration; the conclusion <strong>of</strong> multilateral undertakings in the area <strong>of</strong> resettlement; betterdefinition <strong>of</strong> the roles and responsibilities <strong>of</strong> the countries <strong>of</strong> origin, transit and destination in the area <strong>of</strong> secondaryor irregular movements (multilateral readmission arrangements, strengthening <strong>of</strong> capacities, extraterritorialprotection arrangements). Simultaneously, cooperation from the UNHCR needs to be developed in order to helpStates speed up asylum procedures and improve the quality <strong>of</strong> examination <strong>of</strong> asylum applications by identifyingsafe countries <strong>of</strong> origin or safe third countries, information on countries <strong>of</strong> origin, and monitoring <strong>of</strong> the case lawdeveloped in the Member States. See UNHCR, Convention Plus: Questions and answers, 20 January 2003.CFR-CDF.rep.UE.2003.en

84EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSAny attempt to transfer the responsibilities incumbent upon the Member States and on theUnion to third States is contrary to their international obligations from the viewpoint <strong>of</strong> theGeneva Convention and the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms 254 . Furthermore, any updating <strong>of</strong> the Geneva Convention can only takeplace complementary to this Convention and must not replace the current instrument. We mayalso ponder over the conditions envisaged by the main players for the transfer <strong>of</strong> asylumseekers to such reception structures as well as over the kind <strong>of</strong> rules that will apply on thisoccasion, in particular with regard to the detention <strong>of</strong> applicants and their access to remedies.The definition and application <strong>of</strong> the concept <strong>of</strong> “safe third countries” that will thus beestablished in the Union also merits special attention, with a view to guaranteeing the“effective protection” 255 required from the viewpoint <strong>of</strong> fundamental rights and fitting into thelegislative instrument that is currently being finalized. In any case, the effective protection <strong>of</strong>asylum seekers presupposes that minimum conditions are satisfied, which can be identified asfollows: physical safety, protection against refoulment, access to asylum procedures <strong>of</strong> theUNHCR or to national procedures with sufficient guarantees where this is essential for accessto effective protection or to long-term solutions, and social and economic well-beingentailing, at least, access to primary health care, primary education and the labour market orto sufficient means <strong>of</strong> subsistence to guarantee a dignified living standard.On 20 June 2003, the European Council <strong>of</strong> Thessaloniki 256 confined itself to calling upon theCommission to explore the “parameters” <strong>of</strong> a better access <strong>of</strong> asylum seekers to the territory<strong>of</strong> the European Union, following a Communication from the Commission advocating “moreaccessible, equitable and managed asylum systems” 257 .Article 19. Protection in the event <strong>of</strong> removal, expulsion or extraditionThe binding effect <strong>of</strong> the provisional measures adopted by the European Court <strong>of</strong> HumanRightsA chamber constituted in the first section <strong>of</strong> the European Court <strong>of</strong> Human Rights gave ajudgment on 6 February 2003 258 , in which it considered for the first time that the indication <strong>of</strong>provisional measures by virtue <strong>of</strong> Article 39 <strong>of</strong> the Rules <strong>of</strong> Court is binding on the State towhich it is addressed. The case <strong>of</strong> Mamatkulov and Abdurasulovic v. Turkey concerns theextradition <strong>of</strong> the two applicants by the Turkish authorities to Uzbekistan on 27 March 1999in pursuance <strong>of</strong> a bilateral agreement between Turkey and the Republic <strong>of</strong> Uzbekistan. TheCourt considered, “It follows from Article 34 that, firstly, applicants are entitled to exercisetheir right to individual application effectively, within the meaning <strong>of</strong> Article 34 in fine thatis to say, Contracting States must not prevent the Court from carrying out an effectiveexamination <strong>of</strong> the application – and, secondly, applicants who allege a violation <strong>of</strong> Article 3are entitled to an effective examination <strong>of</strong> the issue whether a proposed extradition orexpulsion will entail a violation <strong>of</strong> Article 3. Indications given by the Court, as in the presentcase, under Rule 39 <strong>of</strong> the Rules <strong>of</strong> Court, permit it to carry out an effective examination <strong>of</strong>the application and to ensure that the protection afforded by the Convention is effective; suchindications also subsequently allow the Committee <strong>of</strong> Ministers to supervise execution <strong>of</strong> the254 Amnesty International, “Strengthening Fortress Europe in Times <strong>of</strong> War. Commentary on British proposals forexternal processing and responsibility sharing arrangements with third countries”, 27 March 2003; ECRE,Statement <strong>of</strong> the European Council on Refugees and Exiles on the European Council meeting, 21 and 22 March2003, 17 March 2003.255 See the conclusions <strong>of</strong> the Seminar <strong>of</strong> <strong>experts</strong> convened by the UNHCR, Conclusions on the concept <strong>of</strong>"Effective Protection" in the context <strong>of</strong> secondary movements <strong>of</strong> refugees and asylum-seekers, Lisbon, 10December 2002256 Point 26 <strong>of</strong> the conclusions.257 COM(2003)315 <strong>of</strong> 3 June 2003.258 The judgment is not final. An application has been filed to transfer the proceedings before the Grand Chamber<strong>of</strong> the European Court <strong>of</strong> Human Rights, which has accepted.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200385final judgment. Such measures thus enable the State concerned to discharge its obligation tocomply with the final judgment <strong>of</strong> the Court, which is legally binding by virtue <strong>of</strong> Article 46<strong>of</strong> the Convention” 259 . The Court concluded on this point, “Any State Party to the Conventionto which interim measures have been indicated in order to avoid irreparable harm beingcaused to the victim <strong>of</strong> an alleged violation must comply with those measures and refrainfrom any act or omission that will undermine the authority and effectiveness <strong>of</strong> the finaljudgment” 260 .The Community return policy <strong>of</strong> persons staying illegally in the Member StatesThe question that has in particular held out attention during the period under scrutiny followsupon several initiatives aimed at facilitating the organization <strong>of</strong> joint flights and transit in theMember States. The Council recommended that common standards be adopted in this areawhen on 28 November 2002 it adopted its Return Action Programme. This also follows uponthe Communication from the Commission <strong>of</strong> 14 October 2002 on a community return policyon illegal residents 261 , and is also discussed in the Communication from the Commission onthe development <strong>of</strong> a common policy on illegal immigration, smuggling and trafficking <strong>of</strong>human beings, external borders and the return <strong>of</strong> illegal residents 262 .Following upon an initiative <strong>of</strong> the Federal Republic <strong>of</strong> Germany 263 , the Council adoptedDirective 2003/110/EC <strong>of</strong> 25 November 2003 on assistance in cases <strong>of</strong> transit for the purposes<strong>of</strong> removal by air 264 . The Directive is adopted on the basis <strong>of</strong> Article 63(3)b) EC. It seeks toorganize the mutual assistance between the States participating in the Schengen convention 265where the removal <strong>of</strong> third country nationals by air is not possible by direct flights, andwhere, therefore, flights transiting through airports <strong>of</strong> other Member States may be required.The Directive applies to removals by air both with and without escorts, however it seeks toscrupulously preserve the sovereign prerogatives <strong>of</strong> the transit State where the exercise <strong>of</strong>public authority is concerned 266 . Article 7(1) <strong>of</strong> the Directive reflects the compromise betweenthe need to make the transit <strong>of</strong> an escort from the requesting State possible, while strictlylimiting the exercise <strong>of</strong> powers by that escort, during the transit : « When carrying out thetransit operation, the powers <strong>of</strong> the escorts shall be limited to self-defence. In addition, in theabsence <strong>of</strong> law-enforcement <strong>of</strong>ficers from the transit Member State or for the purpose <strong>of</strong>supporting the law-enforcement <strong>of</strong>ficers, the escorts may use reasonable and proportionateaction in response to an immediate and serious risk to prevent the third-country national fromescaping, causing injury to himself/herself or to a third party, or damage to property. Underall circumstances escorts must comply with the legislation <strong>of</strong> the requested Member State. »The costs relating to the transit are fully incurred by the requesting State (Article 5(6)), andthe requesting State also undertakes to readmit the third-country national where either theautorisation to transit by air is refused or revoked, where the third-country national enteredthe requested Member State without authorisation during the transit, or where the transit toanother State has been unsuccessful or is impossible (Article 6).259 § 107.260 § 110.261 COM(2002)564.262 Communication from the Commission to the European Parliament and the Council in view <strong>of</strong> the EuropeanCouncil <strong>of</strong> Thessaloniki on the development <strong>of</strong> a common policy on illegal immigration, smuggling and trafficking<strong>of</strong> human beings, external borders and the return <strong>of</strong> illegal residents (COM(2003)323 final, 3/6/2003).263 OJ C 4, 9/1/2003, p. 4. Initially (April 2003), this met a skeptical response from the European Parliament : seedoc. A5-0104/03.264 OJ L 321, 6/12/2003, p. 26.265 All EU Member States, with the exception <strong>of</strong> Denmark, the UK and Ireland (Denmark may decide toimplement the directive before 25 April 2004, in accordance with Art. 5 <strong>of</strong> the Protocol on the position <strong>of</strong>Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community) ; andIceland and Norway.266 See Preamble, Recital 4 : « The sovereignty <strong>of</strong> the Member States, particularly with regard to the use <strong>of</strong> directforce against third-country nationals resisting removal should remain unaffected ».CFR-CDF.rep.UE.2003.en

86EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSRecital 7 <strong>of</strong> the Preamble and Article 8 <strong>of</strong> the Directive explicitly state that theimplementation <strong>of</strong> the Directive should comply fully with the Geneva Convention relating tothe status <strong>of</strong> refugees <strong>of</strong> 28 July 1951 and the European Convention for the Protection <strong>of</strong>Human Rights and Fundamental Freedoms. Regrettably, only the Preamble states that « Inaccordance with the applicable international obligations, transit by air should be neitherrequested nor granted if in the third country <strong>of</strong> destination or <strong>of</strong> transit the third-countrynational faces the threat <strong>of</strong> inhumane or humiliating treatment, torture or the death penalty, orif his life or liberty would be at risk by reason <strong>of</strong> his/her race, religion, nationality,membership <strong>of</strong> a particular social group or political conviction. » Article 3(3) <strong>of</strong> the Directive,which lists the reasons for which the Member State whose assistance is requested may refusetransit by air, does not reiterate this, although it is formulated « without prejudice to theobligations <strong>of</strong> Article 8 » <strong>of</strong> the Directive, which refers to the international obligations <strong>of</strong> theStates under the Geneva Convention and the ECHR. Of course, where a risk <strong>of</strong> ill-treatment<strong>of</strong> persecution in the country <strong>of</strong> return exists, the State requested to <strong>of</strong>fer its assistance to theremoval by air not only should be able to deny the request : it is under an obligation to refuse.It would be unacceptable for the requested State to seek to escape its international obligationsby invoking the fact that it was merely facilitating the implementation <strong>of</strong> a removal decisionmade, <strong>independent</strong>ly, by the authorities <strong>of</strong> the requesting State.Article 6(1)(d) <strong>of</strong> Directive 2003/110/EC, relating to the obligation to readmit the thirdcountry national who could not be removed, should also be read as including the situationwhere it appears to the transit State that the removal would put the person subject todeportation at risk, even in situations where the appreciation <strong>of</strong> the authorities <strong>of</strong> the transitState differs from the appreciation <strong>of</strong> the authorities <strong>of</strong> the requesting State. Such a situationwill not occur, normally, where the transit has been agreed upon by the requested State in aparticular case, as the final country <strong>of</strong> destination will identified in the initial request.However, it could occur where States have entered bilateral or multilateral agreements underwhich transit authorisations are presumed, making it possible to organise removals by airtransiting by another State party to such an agreement without seeking specific autorisation tothat effect, provided it is notified beforehand (Article 4(2), 3d indent). Here, indeed, noindividualized examination <strong>of</strong> each removal is done beforehand. It is however essential thatsuch an examination is performed by the requested State at least after receiving thenotification, and that if it appears to the requested State that the removal would be in violation<strong>of</strong> its international obligations, the autorisation is revoked and the person readmitted in therequesting State. Indeed, Article 3(5) <strong>of</strong> the Directive provides for the possibility that certainfacts are brought to the attention <strong>of</strong> the requested State, leading that State to revoke theautorisation initially given : here again, Article 6(1)(a) should apply, imposing on therequesting State to accept the readmission <strong>of</strong> the deported person and the related costs (Article5(6)), even where this information concerns the situation <strong>of</strong> human rights in the country <strong>of</strong>destination and the risks which, in the view <strong>of</strong> the transit State, the removed person may befacing. Any other reading would mean that a State would be tempted not to comply with itsinternational obligations, as imposed by the instruments mentioned in Article 8 <strong>of</strong> theDirective, out <strong>of</strong> fear <strong>of</strong> the costs relating to the readmission <strong>of</strong> the third-country national inthe State which took the initial decision on the removal.More recently, Italy has taken two initiatives since the start <strong>of</strong> its presidency <strong>of</strong> the Council. Itproposed a Directive to complement this instrument with respect to removals by land. Theaim <strong>of</strong> this Directive would be to define measures for assistance between the competentauthorities <strong>of</strong> the Member States in case <strong>of</strong> transit, with escort, across the territory <strong>of</strong> one orseveral Member States, <strong>of</strong> third-country nationals against whom removal orders have beenissued by a Member State 267 . Italy also proposed a Council Decision 268 aimed specifically at267 Initiative <strong>of</strong> the Italian Republic with a view to adopting a Council Directive on assistance in cases <strong>of</strong> transitthrough the territory <strong>of</strong> one or more Member States in the context <strong>of</strong> removal orders taken by Member Statesagainst third-country nationals, 9 September 2003, doc. 12026/03CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200387organizing joint flights for the collective repatriation <strong>of</strong> aliens who are illegally present in theterritory <strong>of</strong> Member States. It relies for its legal basis on Article 63, paragraph 3, point b), ECand extends the Comprehensive Plan to combat illegal immigration and trafficking <strong>of</strong> humanbeings, adopted on 28 February 2002 269 . This plan states that readmission and return policy isan integral and vital component <strong>of</strong> the fight against illegal immigration, and emphasizes that aCommunity return policy calls for common principles and common measures. This intentionis reaffirmed by the Member States in the Return Action Programme, approved on 28 and 29November 2002, which recommends that the return <strong>of</strong> third-country nationals illegallyresident in a Member State should be made as efficient as possible by “sharing existingcapacities <strong>of</strong> Member States” for such removal. The text proposes a rationalization <strong>of</strong>procedures, the designation <strong>of</strong> a contact national authority and the compilation <strong>of</strong> a commonmanual. The aim <strong>of</strong> the proposed decision is to group the persons being expelled from severalMember States on one flight in order to reduce the costs <strong>of</strong> expulsion. Each Member Statewill designate an authority responsible for organizing the flights. This authority will informthe other Member States if a joint flight is being scheduled, so that the other States canreserve seats on board the plane for the persons they intend to expel. The authority willestablish the organizational details (number <strong>of</strong> escorts, medical personnel and interpreters tobe provided on board). In order to decide the number <strong>of</strong> escorts to be provided, the authoritiesneed to take into account the criminal record <strong>of</strong> those passengers and their behaviour, violentor not, during their detention. The authorities will choose the air carrier and determine howthe costs will be shared. The proposed decision obliges the selected air carrier to submit therelevant flight plan and to obtain all the necessary flight authorizations.The joint organization by several Member States <strong>of</strong> removal operations by air involves theadoption <strong>of</strong> certain minimum common security standards. The Commission convened twomeetings <strong>of</strong> <strong>experts</strong> in January and March 2003 in order to arrive at a text containing“Common guidelines on security provisions for joint removals by air”, submitted to theMember States for approval. The Commission has announced its intention to propose aCouncil Directive on minimum standards for return procedures and mutual recognition <strong>of</strong>return decisions 270 , given the lack <strong>of</strong> effectiveness <strong>of</strong> the existing Directive on mutualrecognition <strong>of</strong> expulsion decisions, which has not established a binding framework for themutual recognition <strong>of</strong> all return decisions.Neither Article 4 <strong>of</strong> Additional Protocol n° 4 to the European Convention on Human Rights,nor general international human rights law stands in the way <strong>of</strong> the joint removal <strong>of</strong> a group<strong>of</strong> illegally residing aliens 271 . In the single case in which the European Court <strong>of</strong> Human founda violation <strong>of</strong> Article 4 Protocol n° 4 ECHR, the Court reiterated that collective expulsion,within the meaning <strong>of</strong> Article 4 <strong>of</strong> Protocol No. 4, is to be understood as any measurecompelling aliens, as a group, to leave a country, except where such a measure is taken on thebasis <strong>of</strong> a reasonable and objective examination <strong>of</strong> the particular case <strong>of</strong> each individual alien<strong>of</strong> the group” 272 . The Court admits however, that in certain circumstances doubts may ariseabout the individualized character <strong>of</strong> the examination <strong>of</strong> each situation : where one or moreStates announce their intention to return a group <strong>of</strong> persons to a certain destination, they maybe tempted to only summarily check each individual situation, or even to proceed on the basis<strong>of</strong> characteristics such as nationality, ethnic origin or religion, either in the determination <strong>of</strong>the asylum claims, or in the adoption <strong>of</strong> orders to leave the territory as such. This would268 Initiative <strong>of</strong> the Italian Republic with a view to adopting a Council Decision on the organization <strong>of</strong> joint flightsfor removals <strong>of</strong> third-country nationals illegally present in the territory <strong>of</strong> two or more Member States, 9September 2003, 12025/03269 OJ C 142 <strong>of</strong> 14/6/2002, p. 23.270 Communication from the Commission to the European Parliament and the Council in view <strong>of</strong> the EuropeanCouncil <strong>of</strong> Thessaloniki on the development <strong>of</strong> a common policy on illegal immigration, smuggling and trafficking<strong>of</strong> human beings, external borders and the return <strong>of</strong> illegal residents (COM(2003)323 final, 3.6.2003), para. 2.3.271 Eur. Ct. HR (1 st sect.), Majic v. Sweden, dec. <strong>of</strong> 23 February 1999 (Appl. n° 45918/99).272 Eur. Ct. HR (3 rd section), Conka v. Belgium judgment <strong>of</strong> 5 February 2002, Appl. N° 51564/99, § 59.CFR-CDF.rep.UE.2003.en

88EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSconstitute a collective expulsion <strong>of</strong> aliens, in the meaning <strong>of</strong> Article 4 <strong>of</strong> Protocol n°4 ECHR.This was precisely the situation in the case <strong>of</strong> Conka v. Belgium, where the Court concludedthat there was a collective expulsion with a specially chartered flight to organize the removalto Slovakia <strong>of</strong> 74 Slovakians <strong>of</strong> Roma origin, who had been ordered to leave Belgian territoryafter they had answered a notice to present themselves at the police station 273 . The recourse toremoval operations using special flights actually increases the risk <strong>of</strong> a collectiveadministrative processing <strong>of</strong> removal orders.For the rest, it should be insisted that Community policy on the return <strong>of</strong> illegal residentsshould take into account standards established in this area by the bodies <strong>of</strong> the Council <strong>of</strong>Europe. The text below lists the most recent standards that have been elaborated by theParliamentary Assembly <strong>of</strong> the Council <strong>of</strong> Europe and by the European Committee for thePrevention <strong>of</strong> Torture. These standards, which have been derived from the EuropeanConvention on Human Rights and from the case law <strong>of</strong> the European Court <strong>of</strong> Human Rights,should serve as a guide in the interpretation <strong>of</strong> a series <strong>of</strong> provisions <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights <strong>of</strong> the European Union that are relevant to the development <strong>of</strong> minimumstandards on return procedures for illegal aliens, in particular Article 4 (Prohibition <strong>of</strong> tortureand inhuman or degrading treatment or punishment), Article 6 (Right to liberty and security),Article 18 (Right to asylum) and Article 19 (Protection in the event <strong>of</strong> removal, expulsion orextradition).Recommendation 1547 (2002) from the Parliamentary Assembly on Expulsionprocedures in conformity with human rights and enforced with respect for safety anddignity, adopted on 22 January 2002 by the Parliamentary Assembly (rapp. Ms VermotMangold) (extracts)13. Finally, the Assembly recommends that the Committee <strong>of</strong> Ministers urge memberstates:i. to establish <strong>independent</strong> monitoring systems for expulsion procedures, for example byappointing observers, mediators or ombudsmen, and to conduct impartial and in-depthenquiries at all levels into allegations <strong>of</strong> ill-treatment;ii. to ensure that all foreigners awaiting expulsion receive, under the aegis <strong>of</strong> a referee,supervision which is:a. individual, through the assessment <strong>of</strong> the individual situation <strong>of</strong> each foreignerconcerned, covering not only his or her administrative and legal status, but also his orher anxieties concerning the expulsion and his or her state <strong>of</strong> health;b. comprehensive, through the involvement <strong>of</strong> a multidisciplinary group including, withrespect for their ethical principles, doctors, psychologists, social workers, legaladvisors, organisations <strong>of</strong>fering legal or humanitarian assistance, particularly nongovernmentalorganisations;c. monitored at all stages <strong>of</strong> the expulsion procedure, that is, during preparation fordeparture, in particular in detention areas and centres, during the journey and onrepatriation;273 Consider also the friendly settlements reached in the cases <strong>of</strong> Sulejmanovic and others and Sejdovic andSulejmanovic v. Italy (Appl. N° 57574/00 and n° 57575/00) (judgments <strong>of</strong> 8 November 2002 (Eur. Ct. HR (1 stsect.)).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200389iii. to ensure that every accompanied minor concerned by an expulsion procedure is nottaken away by the competent <strong>of</strong>ficers unless in the presence <strong>of</strong> his parents andaccompanied by them;iv. to develop systematic policies for voluntary or forced repatriation in partnershipwith the International Organization for Migration (IOM) or any other relevant body, inparticular through the allocation <strong>of</strong> financial aid;v. to adapt without delay their legislation and practices regarding holding prior toexpulsion, in order to:a. limit the length <strong>of</strong> detention in waiting or transit zones to a maximum <strong>of</strong> fifteen days;b. limit the length <strong>of</strong> detention in police stations to the amount <strong>of</strong> time strictly necessaryfor any arrest and to separate foreigners awaiting expulsion from people beingquestioned for common law crimes;c. limit prison detention to those who represent a recognised danger to public order orsafety and to separate foreigners awaiting expulsion from those detained for commonlaw crimes;d. avoid detaining foreigners awaiting expulsion in a prison environment, and inparticular to:– put an end to detention in cells;– allow access to fresh air and to private areas and to areas where foreigners cancommunicate with the outside world;– not hinder contacts with the family and non-governmental organisations;– guarantee access to means <strong>of</strong> communication with the outside world, such astelephones and postal services;– ensure that during detention foreigners can work, in dignity and with properremuneration, and take part in sporting and cultural activities;– guarantee free access to consultation and <strong>independent</strong> legal representation;e. guarantee, under regular supervision by the judge, the strict necessity and theproportionality <strong>of</strong> the use and continuation <strong>of</strong> detention for the enforcement <strong>of</strong> thedeportation order, and to set the length <strong>of</strong> detention at a maximum <strong>of</strong> one month;f. favour alternatives to detention which place less restrictions on freedom, such ascompulsory residence orders or other forms <strong>of</strong> supervision and monitoring, such as theobligation to register; and to set up open reception centres;g. ensure that detention centres are supervised by persons who are specially selectedand trained in psycho-social support and to ensure the permanent, or at least regular,presence <strong>of</strong> “inter-cultural mediators”, interpreters, doctors and psychologists as well aslegal protection by legal counsellors;h. take into account, in any decision to limit personal freedom, the needs <strong>of</strong> vulnerablegroups, and in particular:– the principle <strong>of</strong> the unity <strong>of</strong> the family must be respected in all circumstances;– unaccompanied minors must be treated in accordance with their age, and mustimmediately be taken charge <strong>of</strong> by a judge for minors and have access to <strong>independent</strong>legal consultation and representation;– single women must be able to use separate facilities ;– the elderly must have access to the medical care necessary for their age;CFR-CDF.rep.UE.2003.en

90EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSvi. ensure that expulsion orders are enforced by specially trained, plain-clothed staterepresentatives and not by private agents, and avoid any traumatising treatment,especially towards vulnerable persons;vii. inform the destination state <strong>of</strong> the measures taken, to ensure the expelled personsare not considered criminals;viii. set up a monitoring system in the destination country, managed by embassypersonnel, with a view to ensuring that the expelled person is not subjected to humanrights violations, considered as a criminal or threatened with blackmail or arbitrarydetention;ix. adapt immediately their legislation and practices concerning the transportation <strong>of</strong>expelled foreigners in order to:a. inform the deportee at least thirty-six hours in advance <strong>of</strong> the details <strong>of</strong> the journey:times, destination, means <strong>of</strong> transport and, if applicable, whether they will be escorted;b. limit the use <strong>of</strong> escorts to cases <strong>of</strong> known resistance, to take careful account <strong>of</strong> allrefusals to be escorted and to organise a prior meeting with members <strong>of</strong> the escort, ifabsolutely necessary;c. ensure that members <strong>of</strong> escorts are adequately trained, particularly in mediation andstress management, and have linguistic and cultural knowledge;d. favour in all cases scheduled air transport and to ensure that the carrier and captainhave been fully informed and, if they do not allow the presence on board <strong>of</strong> <strong>independent</strong>observers or video recordings, to at least give their formal agreement;e. allow also the presence <strong>of</strong> <strong>independent</strong> observers or to make video recordings <strong>of</strong> themoments leading up to departure, due to the possibility <strong>of</strong> threats or attacks intended topersuade the person to leave; the <strong>independent</strong> observers must be present on departureand arrival;f. systematically draw up certificates on the physical and mental health <strong>of</strong> the deportee,on departure and arrival;g. introduce into national law specific regulations which strictly forbid the followingpractices:– partial or total obstruction <strong>of</strong> the respiratory tract;– gagging with adhesive tape;– the use <strong>of</strong> poison gas or stun gas;– the administration <strong>of</strong> tranquillisers against the wishes <strong>of</strong> the person concerned or <strong>of</strong>medicines without medical direction;– any form <strong>of</strong> restraint other than handcuffs on the wrists;– immobilisation by handcuffs during the journey;– the wearing <strong>of</strong> masks or hoods by members <strong>of</strong> the escort;– the arbitrary or disproportionate use <strong>of</strong> force;h. ensure proportionality and respect for safety and human dignity in any othermeasures taken during the expulsion procedure, by taking account <strong>of</strong> the particularneeds <strong>of</strong> vulnerable persons such as children, unaccompanied minors, single womenand the elderly;CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200391i. ensure that deportees receive food and drink during the journey and that they cancarry and reclaim their personal belongings;x. introduce into law the legal guarantees necessary for persons whose rights areviolated during an expulsion procedure to be able to effectively exercise their right toappeal, namely:a. the possibility for the victim, or any other person appointed by him or her to thiseffect, to appeal to the legal authorities, including, if appropriate, the diplomaticrepresentations <strong>of</strong> the state from which he has been expelled;b. the provision <strong>of</strong> complete information to all persons awaiting expulsion regarding thepossibility <strong>of</strong> making an appeal and ways <strong>of</strong> doing so, information on the possibleconsequences <strong>of</strong> a refusal to co-operate and the means <strong>of</strong> restraint stipulated in nationallaw;c. the presence <strong>of</strong> the victim in the state which decided to expel him or her throughoutthe duration <strong>of</strong> the proceedings brought about by the appeal, if necessary by means <strong>of</strong>:– the suspension <strong>of</strong> an expulsion procedure against a person still present in the statefrom which he or she is to be expelled; or– the return <strong>of</strong> an expelled person to the state which expelled him or her.Deportation <strong>of</strong> foreign nationals by air - Extract from the 13th General Report <strong>of</strong> theEuropean Committee for the prevention <strong>of</strong> torture and inhuman or degradingtreatment or punishment (CPT) [CPT/Inf (2003) 35]31. The CPT recognizes that it will <strong>of</strong>ten be a difficult and stressful task to enforce adeportation order in respect <strong>of</strong> a foreign national who is determined to stay on a State'sterritory. It is also clear, in the light <strong>of</strong> all the CPT’s observations in various countries –and particularly from an examination <strong>of</strong> a number <strong>of</strong> deportation files containingallegations <strong>of</strong> ill-treatment – that deportation operations by air entail a manifest risk <strong>of</strong>inhuman and degrading treatment. This risk exists both during preparations fordeportation and during the actual flight; it is inherent in the use <strong>of</strong> a number <strong>of</strong>individual means/methods <strong>of</strong> restraint, and is even greater when such means/methodsare used in combination.32. At the outset it should be recalled that it is entirely unacceptable for personssubject to a deportation order to be physically assaulted as a form <strong>of</strong> persuasion toboard a means <strong>of</strong> transport or as a punishment for not having done so. The CPTwelcomes the fact that this rule is reflected in many <strong>of</strong> the relevant instructions in thecountries visited. For instance, some instructions which the CPT examined prohibit th<strong>eu</strong>se <strong>of</strong> means <strong>of</strong> restraint designed to punish the foreigner for resisting or which caus<strong>eu</strong>nnecessary pain.33. Clearly, one <strong>of</strong> the key issues arising when a deportation operation is carried out isthe use <strong>of</strong> force and means <strong>of</strong> restraint by escort staff. The CPT acknowledges thatsuch staff are, on occasion, obliged to use force and means <strong>of</strong> restraint in order toeffectively carry out the deportation; however, the force and the means <strong>of</strong> restraintused should be no more than is reasonably necessary. The CPT welcomes the factthat in some countries the use <strong>of</strong> force and means <strong>of</strong> restraint during deportationprocedures is reviewed in detail, in the light <strong>of</strong> the principles <strong>of</strong> lawfulness,proportionality and appropriateness.CFR-CDF.rep.UE.2003.en

92EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS34. The question <strong>of</strong> the use <strong>of</strong> force and means <strong>of</strong> restraint arises from the moment thedetainee concerned is taken out <strong>of</strong> the cell in which he/she is being held pendingdeportation (whether that cell is located on airport premises, in a holding facility, in aprison or a police station). The techniques used by escort personnel to immobilise theperson to whom means <strong>of</strong> physical restraint – such as steel handcuffs or plastic strips –are to be applied deserve special attention. In most cases, the detainee will be in fullpossession <strong>of</strong> his/her physical faculties and able to resist handcuffing violently. Incases where resistance is encountered, escort staff usually immobilise the detaineecompletely on the ground, face down, in order to put on the handcuffs. Keeping adetainee in such a position, in particular with escort staff putting their weight on variousparts <strong>of</strong> the body (pressure on the ribcage, knees on the back, immobilisation <strong>of</strong> theneck) when the person concerned puts up a struggle, entails a risk <strong>of</strong> positionalasphyxia 274 .There is a similar risk when a deportee, having been placed on a seat in the aircraft,struggles and the escort staff, by applying force, oblige him/her to bend forward, headbetween the knees, thus strongly compressing the ribcage. In some countries, the use <strong>of</strong>force to make the person concerned bend double in this way in the passenger seat is, asa rule, prohibited, this method <strong>of</strong> immobilisation being permitted only if it is absolutelyindispensable in order to carry out a specific, brief, authorised operation, such as puttingon, checking or taking <strong>of</strong>f handcuffs, and only for the duration strictly necessary for thispurpose.The CPT has made it clear that the use <strong>of</strong> force and/or means <strong>of</strong> restraint capable <strong>of</strong>causing positional asphyxia should be avoided whenever possible and that anysuch use in exceptional circumstances must be the subject <strong>of</strong> guidelines designed toreduce to a minimum the risks to the health <strong>of</strong> the person concerned.35. The CPT has noted with interest the directives in force in certain countries,according to which means <strong>of</strong> restraint must be removed during the flight (as soon astake-<strong>of</strong>f has been completed). If, exceptionally, the means <strong>of</strong> restraint had to be left inplace, because the deportee continued to act aggressively, the escort staff wereinstructed to cover the foreigner’s limbs with a blanket (such as that normally issued topassengers), so as to conceal the means <strong>of</strong> restraint from other passengers.On the other hand, instructions such as those followed until recently in one <strong>of</strong> thecountries visited in connection with the most problematic deportation operations,whereby the persons concerned were made to wear nappies and prevented from usingthe toilet throughout the flight on account <strong>of</strong> their presumed dangerousness, can onlylead to a degrading situation.36. In addition to the avoidance <strong>of</strong> the risks <strong>of</strong> positional asphyxia referred to above, theCPT has systematically recommended an absolute ban on the use <strong>of</strong> means likely toobstruct the airways (nose and/or mouth) partially or wholly. Serious incidents thathave occurred in various countries over the last ten years in the course <strong>of</strong> deportationshave highlighted the considerable risk to the lives <strong>of</strong> the persons concerned <strong>of</strong> usingthese methods (gagging the mouth and/or nose with adhesive tape, putting a cushion orpadded glove on the face, pushing the face against the back <strong>of</strong> the seat in front, etc.).The CPT drew the attention <strong>of</strong> States Parties to the Convention to the dangers <strong>of</strong>methods <strong>of</strong> this kind as far back as 1997, in its 7th General Report. It notes that thispractice is now expressly prohibited in many States Parties and invites States which274 See, in particular, “Positional Asphyxia – Sudden Death”, US Department <strong>of</strong> Justice, June 1995, andthe proceedings <strong>of</strong> the “Safer Restraint” Conference held in London in April 2002 under the aegis <strong>of</strong>the UK Police Complaints Authority (cf. www.pca.gov.uk).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200393have not already done so to introduce binding provisions in this respect withoutfurther delay.37. It is essential that, in the event <strong>of</strong> a flight emergency while the plane is airborne, therescue <strong>of</strong> the person being deported is not impeded. Consequently, it must be possibleto remove immediately any means restricting the freedom <strong>of</strong> movement <strong>of</strong> thedeportee, upon an order from the crew.Account should also be taken <strong>of</strong> the health risks connected with the so-called“economy-class syndrome” in the case <strong>of</strong> persons who are confined to their seats forlong periods (See, in particular, “Frequency and prevention <strong>of</strong> symptomless deep-veinthrombosis in long-haul flights: a randomised trial”, John Scurr et al, The Lancet, Vol.357, 12 May 2001).38. Two particular points were <strong>of</strong> concern to the CPT after visits to certain countries:the wearing <strong>of</strong> masks by deportation escorts and the use, by the latter, <strong>of</strong> incapacitatingor irritant gases to remove immigration detainees from their cells in order to transferthem to the aircraft.In the CPT’s opinion, security considerations can never serve to justify escort staffwearing masks during deportation operations. This practice is highly undesirable,since it could make it very difficult to ascertain who is responsible in the event <strong>of</strong>allegations <strong>of</strong> ill-treatment.The CPT also has very serious reservations about the use <strong>of</strong> incapacitating orirritant gases to bring recalcitrant detainees under control in order to removethem from their cells and transfer them to the aircraft. The use <strong>of</strong> such gases invery confined spaces, such as cells, entails manifest risks to the health <strong>of</strong> both thedetainee and the staff concerned. Staff should be trained in other control techniques(for instance, manual control techniques or the use <strong>of</strong> shields) to immobilise arecalcitrant detainee.39. Certain incidents that have occurred during deportation operations have highlightedthe importance <strong>of</strong> allowing immigration detainees to undergo a medicalexamination before the decision to deport them is implemented. This precaution isparticularly necessary when the use <strong>of</strong> force and/or special measures is envisaged.Similarly, all persons who have been the subject <strong>of</strong> an abortive deportationoperation must undergo a medical examination as soon as they are returned todetention (whether in a police station, a prison or a holding facility specially designedfor foreigners). In this way it will be possible to verify the state <strong>of</strong> health <strong>of</strong> the personconcerned and, if necessary, establish a certificate attesting to any injuries. Such ameasure could also protect escort staff against unfounded allegations.40. During many visits, the CPT has heard allegations that immigration detainees hadbeen injected with medication having a tranquillising or sedative effect, in order toensure that their deportation proceeded without difficulty. On the other hand, it alsonoted in certain countries that instructions prohibited the administration, against the will<strong>of</strong> the person concerned, <strong>of</strong> tranquillisers or other medication designed to bring him orher under control. The CPT considers that the administration <strong>of</strong> medication topersons subject to a deportation order must always be carried out on the basis <strong>of</strong> amedical decision taken in respect <strong>of</strong> each particular case. Save for clearly andstrictly defined exceptional circumstances, medication should only be administeredwith the informed consent <strong>of</strong> the person concerned.CFR-CDF.rep.UE.2003.en

94EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS41. Operations involving the deportation <strong>of</strong> immigration detainees must bepreceded by measures to help the persons concerned organise their return,particularly on the family, work and psychological fronts. It is essential thatimmigration detainees be informed sufficiently far in advance <strong>of</strong> their prospectivedeportation, so that they can begin to come to terms with the situation psychologicallyand are able to inform the people they need to let know and to retrieve their personalbelongings. The CPT has observed that a constant threat <strong>of</strong> forcible deportation hangingover detainees who have received no prior information about the date <strong>of</strong> theirdeportation can bring about a condition <strong>of</strong> anxiety that comes to a head duringdeportation and may <strong>of</strong>ten turn into a violent agitated state. In this connection, the CPThas noted that, in some <strong>of</strong> the countries visited, there was a psycho-social serviceattached to the units responsible for deportation operations, staffed by psychologists andsocial workers who were responsible, in particular, for preparing immigration detaineesfor their deportation (through ongoing dialogue, contacts with the family in the country<strong>of</strong> destination, etc.). Needless to say, the CPT welcomes these initiatives and invitesthose States which have not already done so to set up such services.42. The proper conduct <strong>of</strong> deportation operations depends to a large extent on thequality <strong>of</strong> the staff assigned to escort duties. Clearly, escort staff must be selectedwith the utmost care and receive appropriate, specific training designed to reducethe risk <strong>of</strong> ill-treatment to a minimum. This was <strong>of</strong>ten far from being the case in theStates Parties visited. In some countries, however, special training had been organised(methods and means <strong>of</strong> restraint, stress and conflict management, etc.). Moreover,certain management strategies had had a beneficial effect: the assignment <strong>of</strong> escortduties to staff who volunteered, combined with compulsory rotation (in order to avoidpr<strong>of</strong>essional exhaustion syndrome and the risks related to routine, and ensure that thestaff concerned maintained a certain emotional distance from the operational activitiesin which they were involved) as well as provision, on request, <strong>of</strong> specialisedpsychological support for staff.43. The importance <strong>of</strong> establishing internal and external monitoring systems in anarea as sensitive as deportation operations by air cannot be overemphasised. TheCPT observed that in many countries, specific monitoring systems had, unfortunately,been introduced only after particularly serious incidents, such as the death <strong>of</strong> deportees.44. Deportation operations must be carefully documented. The establishment <strong>of</strong> acomprehensive file and a deportation record, to be kept for all operations carried out bythe units concerned, is a basic requirement. Information on abortive deportationattempts should receive special attention and, in particular, the reasons for abandoning adeportation operation (a decision taken by the escort team on managerial orders, arefusal on the part <strong>of</strong> the captain <strong>of</strong> the aircraft, violent resistance on the part <strong>of</strong> thedeportee, a request for asylum, etc.) should be systematically recorded. Theinformation recorded should cover every incident and every use <strong>of</strong> means <strong>of</strong> restraint(handcuffs; ankle cuffs; knee cuffs; use <strong>of</strong> self-defence techniques; carrying thedeportee on board; etc.).Other means, for instance audiovisual, may also be envisaged, and are used insome <strong>of</strong> the countries visited, in particular for deportations expected to beproblematic. In addition, surveillance cameras could be installed in various areas(corridors providing access to cells, route taken by the escort and the deportee to thevehicle used for transfer to the aircraft, etc.).45. It is also beneficial if each deportation operation where difficulties areforeseeable is monitored by a manager from the competent unit, able to interruptthe operation at any time. In some <strong>of</strong> the countries visited, the CPT found that thereCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200395were spot checks, both during preparations for deportation and during boarding, bymembers <strong>of</strong> internal police supervisory bodies. What is more, in an admittedly limitednumber <strong>of</strong> cases, members <strong>of</strong> the supervisory bodies boarded aircraft incognito and thusmonitored the deportee and the escort until arrival at the destination. The CPT can onlywelcome these initiatives, which are all too rare at present in Europe.Further, the CPT wishes to stress the role to be played by external supervisory(including judicial) authorities, whether national or international, in theprevention <strong>of</strong> ill-treatment during deportation operations. These authorities shouldkeep a close watch on all developments in this respect, with particular regard to the use<strong>of</strong> force and means <strong>of</strong> restraint and the protection <strong>of</strong> the fundamental rights <strong>of</strong> personsdeported by air.CHAPTER III : EQUALITYArticle 20. Equality before the lawIt is referred to the commentary under Article 21 <strong>of</strong> the Charter.Article 21. Non-discrimination 275Directives based on Article 13 ECBy 19 July 2003 and 2 December 2003 respectively, the transposition should have beencompleted <strong>of</strong> Directives 2000/43/EC and 2000/78/EC adopted in 2000 on the basis <strong>of</strong> Article13 EC 276 . This transposition process is not complete yet, however. It is therefore too early t<strong>of</strong>ormulate a comprehensive appraisal 277 . On the other hand, the following remarks may bemade on questions <strong>of</strong> interpretation that have been raised by certain provisions <strong>of</strong> theDirectives, which a review might be able to clarify. These remarks have been formulated inthe perspective <strong>of</strong> the reports which the Commission is due to submit at the end <strong>of</strong> 2005,beginning <strong>of</strong> 2006, on their application 278 . At this stage they are purely provisional and need tobe completed in the light <strong>of</strong> the experience subsequently gained in 2004-2005.Protection against victimizationArticle 9 <strong>of</strong> Directive 2000/43/EC and Article 11 <strong>of</strong> Directive 2000/78/EC concern protectionagainst victimization. Although they are formulated in slightly different terms, neither isreally explicit on the extent <strong>of</strong> the protection, ratione personae, which Member States shouldguarantee. Can this protection be limited to the author <strong>of</strong> the complaint, who allegedly275 For the purposes <strong>of</strong> the commentary on this provision, we were unable to take account <strong>of</strong> the Annual Report(Part 2) drawn up by the European Monitoring Centre on Racism and Xenophobia (EUMC): see Racism andXenophobia in the EU Member States: Trends, Developments and Good Practices in 2002, December 2003, 96pages. Nevertheless, it is advisable to consult this document, in particular for its presentation <strong>of</strong> the need to collectstatistical data to allow a better monitoring <strong>of</strong> the effectiveness <strong>of</strong> the fight against discrimination in diverse areas.276 Council Directive 2000/43/EC <strong>of</strong> 29 June 2000 implementing the principle <strong>of</strong> equal treatment between personsirrespective <strong>of</strong> racial or ethnic origin, OJ L 180 <strong>of</strong> 19/7/2000, p. 22; Directive 2000/78/EC <strong>of</strong> 27 November 2000establishing a general framework for equal treatment in employment and occupation, OJ L 303 <strong>of</strong> 2/12/2000, p. 16.277 The object <strong>of</strong> the present report, which exclusively evaluates the activity <strong>of</strong> the Union institutions, is not to<strong>of</strong>fer an assessment <strong>of</strong> the transposition <strong>of</strong> this Directive by the Member States. For a first appraisal <strong>of</strong> the newMember States and the candidate States, see the report Equality, Diversity and Enlargement. Report on measuresto combat discrimination in acceding and candidate countries, DG Employment & Social Affairs (UnitFundamental Rights and Anti-Discrimination), September 2003.278 In accordance with Article 17 <strong>of</strong> Directive 2000/43/EC and Article 19 <strong>of</strong> Directive 2000/78/EC.CFR-CDF.rep.UE.2003.en

96EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSsuffered discrimination, or should it be extended to witnesses or colleagues at work whosupport the complainant? It would be essential for the Commission to make it clear that in itsview it is the latter interpretation that should prevail. This would be in line withRecommendation CRI(2003)8 adopted on 13 December 2002 279 . This will avoid a divergencebetween the interpretation <strong>of</strong> the Directives and that <strong>of</strong> the Directive in preparationimplementing the principle <strong>of</strong> equal treatment between women and men in the access to andsupply <strong>of</strong> goods and services 280 , <strong>of</strong> which the Preamble accompanying the Commissionproposal clearly states, in connection with a clause (Article 9) formulated in identical terms,“Victims and witnesses could be deterred from exercising their rights due to the risk <strong>of</strong>reprisals in certain circumstances” (p. 17).Scope <strong>of</strong> the concept <strong>of</strong> reasonable accommodationIn Directive 2000/78/EC, the concept <strong>of</strong> reasonable accommodation is provided only for thebenefit <strong>of</strong> persons with disabilities (Article 2 § 2, ii), and Article 5). This element <strong>of</strong> nondiscrimination,however, should also be able to be relied upon by persons <strong>of</strong> a particularreligion or ethnic origin: in the former case, reasonable accommodation would concern, forexample, working hours or work schedules (so that they are compatible with hours <strong>of</strong> prayeror religious festivals), dietary arrangements at company cafeterias or the nature <strong>of</strong> the dutiesto be carried out (menus should be made up and tasks distributed in accordance with religiousprohibitions); in the latter case, it may guarantee greater respect for ethnic identity, forexample as regards the wearing <strong>of</strong> religious insignia or, in the particular case <strong>of</strong> Roma, theresidence imposed by the employer. It should be underlined, first, that the notion <strong>of</strong>reasonable accommodation should not necessarily be confined to the elimination <strong>of</strong> obstaclesin the physical environment : even with respect to disability, an effective accommodation mayfor instance consist in sign language interpretation, or a form <strong>of</strong> individualized assistance t<strong>of</strong>acilitate the integration in the undertaking 281 . Second, the obligation to provide reasonableaccommodation is not merely an element in the prohibition <strong>of</strong> direct/indirect discrimination,but constitutes an additional guarantee to those that ensue from the prohibition <strong>of</strong> those twotraditional forms <strong>of</strong> discrimination. Indeed, the refusal to provide reasonable accommodationconsists in the choice <strong>of</strong> imposing on everybody, without exception, a common standard. Sucha refusal will not generally be considered as constituting direct discrimination. And it could incertain cases be objectively justified as pursuing a legitimate aim, by means both appropriateand necessary. In this way, such a refusal could escape the prohibition <strong>of</strong> discrimination,unless the obligation to introduce an exception to the common standard may be imposed,when the common standard itself seems justified and therefore non-discriminatory 282 .Link between reasonable accommodation and indirect discriminationThe concept <strong>of</strong> reasonable accommodation is presented in an ambiguous way in Article 2 § 2,b) <strong>of</strong> Directive 2000/78/EC. This provision, as it stands now, gives the impression that, facedwith the situation where an employer relies on a provision, practice or criterion that isapparently n<strong>eu</strong>tral yet would put persons with disabilities at a particular disadvantage, andcannot justify this provision, practice or criterion, may either modify this measure, or providereasonable accommodation to allow the disabled person to have access to a job, to keep this279 ECRI General Policy Recommendation n°7 on national legislation to combat racism and racial discrimination.280 COM(2003)657 final, <strong>of</strong> 5/11/2003.281See, e.g., amendement n°25 proposed in the Report on the proposal for a Council Directiveestablishing a general framework for equal treatment in employment and occupation (rapp. T. Mann) (doc. A5 –0264/2000, 21 September 2000), and the explanations contained in that proposal.282 See for example Cass. fr. (soc.), 24 March 1998, Azad v. Chamsidine, Dr. Soc., June 1998, p. 615 (employee ata butcher’s who claimed that his Muslim religion prohibits him from all contact with pork: although the fact thatemployees working at a butcher’s are required to handle pork may be considered justified, even though it may putMuslims at a particular disadvantage, it will not necessarily be easy to justify that no exception can be made to thegeneral rule, considering that the Muslim religion <strong>of</strong> the employees invokes entitlement to such an exception).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200397job or to gain promotion. There should be no alternative here, but a subsidiarity between thetwo concepts. It is only when the apparently n<strong>eu</strong>tral measure does not need to be modifiedbecause it may be objectively and reasonably justified that we need to examine the possibility<strong>of</strong> a reasonable accommodation <strong>of</strong> the situation <strong>of</strong> the disabled person, taking into account hisspecific needs. Any other interpretation perpetuates environments that discourage thepr<strong>of</strong>essional integration <strong>of</strong> disabled persons, unless arrangements are made on a case-by-casebasis that would allow such an integration to take place on an individual basis.Marriage-related benefits and the prohibition <strong>of</strong> discrimination based on sexualorientationRecital 22 <strong>of</strong> Directive 2000/78/EC states that the prohibition <strong>of</strong> any form <strong>of</strong> discrimination,direct or indirect, on the ground <strong>of</strong> sexual orientation, is “without prejudice to national lawson marital status and the benefits dependent thereon”. This means that, even there wheremarriage is only open to couples <strong>of</strong> men and women, the fact <strong>of</strong> attaching certain advantagesto marriage cannot be considered as bringing about discrimination on the ground <strong>of</strong>homosexual orientation. This is only acceptable ins<strong>of</strong>ar as the European Court <strong>of</strong> HumanRights has not yet recognized the right to marry for same-sex couples without one <strong>of</strong> thepartners having undergone a sex change as it has recognized for couples <strong>of</strong> which one <strong>of</strong> thepartners is a transsexual 283 . It should be emphasized, however, that, on the one hand, grantingcertain rights to couples <strong>of</strong> men and women (e.g. cohabiting in a stable relationship) whereassame-sex couples are excluded from those same advantages constitutes direct discriminationon the basis <strong>of</strong> sexual orientation, within the meaning <strong>of</strong> the Directive 284 ; on the other hand,bearing in mind the fact that the prohibition <strong>of</strong> all discrimination is one <strong>of</strong> the generalprinciples <strong>of</strong> Community law, observance <strong>of</strong> which is ensured by the Court <strong>of</strong> Justice <strong>of</strong> theEuropean Communities 285 , only the fact <strong>of</strong> reserving certain advantages for married coupleswhereas excluding unmarried couples from those advantages yet granting them identical orsimilar recognition (as is the case with various forms <strong>of</strong> registered partnership or solidaritypact), may be classed as discrimination on the ground <strong>of</strong> sexual orientation, either directly(where advantages are reserved for the institution open to heterosexuals only whereas theinstitution reserved for homosexuals is excluded from those advantages) or indirectly (whereno objective and reasonable justification can be given for reserving certain advantages formarried couples only, whereas national law has established an institution, parallel to marriage,that is essentially similar thereto, while continuing to reserve marriage for heterosexualcouples only). It would be useful if the Commission would issue a Communicationinterpreting Directives 2000/43/EC and 2000/78/EC, covering, among other things, the twolatter points.Relationship between Non-Discrimination and Personal Data Protection.This is developed under the next paragraph.Diversity in Business and the use <strong>of</strong> sensitive data in diversity policiesThe European Commission (Directorate-General for Employment, Industrial Relations andSocial Affairs) has commissioned a report on the business case for diversity policies within283 See Eur. Ct. H.R., Christine Goodwin v. United Kingdom and I. v. United Kingdom, judgment <strong>of</strong> 11 July 2002;and the interpretation <strong>of</strong> this judgment by the Court <strong>of</strong> Justice <strong>of</strong> the European Communities in its judgment <strong>of</strong> 7January 2004, K. B. and National Health Service Pensions Agency, C-117/01.284 The gap observed by the Court <strong>of</strong> Justice <strong>of</strong> the European Communities in the judgment <strong>of</strong> 17 February 1998 inthe Grant case (C-249/96, ECR p.I-621) has been filled by the adoption <strong>of</strong> Article 13 EC and Directive2000/78/EC.285 ECJ, 30 April 1996, P. v. S., C-13/94, ECR p.I-2143.CFR-CDF.rep.UE.2003.en

98EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSthe undertaking. The report was completed in October 2003 286 . It is based on a survey <strong>of</strong> 200companies in 4 EU countries, on literature reviews, on 8 case studies in 6 Member States, andon a number <strong>of</strong> interviews with a range <strong>of</strong> actors. The report puts forward a number <strong>of</strong>benefits from diversity policies, among which especially the strengthened cultural valueswithin the organisation, the enhanced reputation <strong>of</strong> the undertaking and a capacity to retainthe most talented people. Costs, too, are associated with diversity policies. Some areopportunity costs, linked to the transition towards an internal culture within the enterprisemore open to diversity, and therefore should be seen as an investment. Other costs arerecurring expenses : such costs include, inter alia, the hiring and training <strong>of</strong> specialist staff,record-keeping, monitoring and reporting processes. The report however also highlights theneed for a more complete dissemination <strong>of</strong> information on workforce diversity policies, tocontribute to a better awareness by companies <strong>of</strong> the potential significance and benefits <strong>of</strong>diversity policies. It also insists on the need for case-studies on diversity policies which haveworked well, and more generally, for more systematic comparisons <strong>of</strong> the performances <strong>of</strong> awide range <strong>of</strong> companies in achieving diversity. The purpose <strong>of</strong> such a comparison could beto better identify the obstacles which diversity policies face in the different sectors orcountries, the ways such obstacles have been overcome in other settings, and the costs andbenefits <strong>of</strong> diversity policies.One specific obstacle to the adoption and implementation <strong>of</strong> workforce diversity policies arethe restrictions on the processing <strong>of</strong> sensitive data in the EU, which may make it impossible tomeasure the evolution <strong>of</strong> the workforce, according to sexual orientation, race or ethnic origin,or religion. The processing <strong>of</strong> data on racial origin, religious or other beliefs, health(disability) or sex life is subject to particularly strict conditions on account <strong>of</strong> the risk <strong>of</strong>discrimination involved in the use <strong>of</strong> such data. Directive 95/46/EC <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council <strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals with regardto the processing <strong>of</strong> personal data and on the free movement <strong>of</strong> such data 287 provides,“Member States shall prohibit the processing <strong>of</strong> personal data revealing racial or ethnic origin,political opinions, religious or philosophical beliefs, trade-union membership, and theprocessing <strong>of</strong> data concerning health or sex life” (Article 8 § 1) 288 . However, if a victim <strong>of</strong>discrimination can adduce in support <strong>of</strong> his action certain statistical data that will make itpossible to presume discrimination - obliging the respondent to prove that he has notcommitted the alleged discrimination -, the processing <strong>of</strong> such personal data is necessary.Before we can argue that such a measure, provision or criterion produces a disproportionateimpact on the persons who define themselves by their membership <strong>of</strong> a ‘racial’ or ethnicgroup, their religion or beliefs, their age, disability or sexual orientation, we must be able toclassify those persons according to those criteria 289 . Moreover, an employer who wants toimplement a policy <strong>of</strong> diversity within his workforce must necessarily monitor thecomposition <strong>of</strong> the workforce on the basis <strong>of</strong> such data.286 The Costs and Benefits <strong>of</strong> Diversity. A Study on Methods and Indicators to Measure the Cost-Effectiveness <strong>of</strong>Diversity Policies in Enterprises, report drawn up by the Centre for Strategy and Evaluation Service (CSES) onbehalf <strong>of</strong> the European Commission. Seehttp://<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/employment_social/fundamental_rights/prog/studies_en.htm287 OJ L 281 <strong>of</strong> 23/1/1995, p. 31.288 See also Article 6 <strong>of</strong> the Convention for the Protection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong>Personal Data, opened for signature within the Council <strong>of</strong> Europe on 28 January 1981 (CETS n° 108) (which saysthat sensitive data “may not be processed automatically unless domestic law provides appropriate safeguards”).289 The Member States can provide that indirect discrimination, prohibited under the Directives adopted on thebasis <strong>of</strong> Article 13 EC, may be established “by any means, including on the basis <strong>of</strong> statistical evidence” (Preamble<strong>of</strong> Council Directive 2000/43/EC <strong>of</strong> 29 June 2000 implementing the principle <strong>of</strong> equal treatment between personsirrespective <strong>of</strong> racial or ethnic origin, OJ L 180 <strong>of</strong> 19/7/2000, p. 22 (Recital 15); Preamble <strong>of</strong> Council Directive2000/78/EC <strong>of</strong> 27 November 2000 establishing a general framework for equal treatment in employment andoccupation, OJ L 303 <strong>of</strong> 2/12/2000, p. 16 (Recital 15)). This is merely an option <strong>of</strong>fered to Member States, sincethe Directives only impose minimum standards.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 200399Directive 95/46/EC only allows the processing <strong>of</strong> sensitive data in five situations, amongwhich: “(a) the data subject has given his explicit consent to the processing <strong>of</strong> those data,except where the laws <strong>of</strong> the Member State provide that the prohibition referred to inparagraph 1 may not be lifted by the data subject's giving his consent; or (b) processing isnecessary for the purposes <strong>of</strong> carrying out the obligations and specific rights <strong>of</strong> the controllerin the field <strong>of</strong> employment law in so far as it is authorized by national law providing foradequate safeguards (…); or (e) the processing relates to data which are manifestly madepublic by the data subject or is necessary for the establishment, exercise or defence <strong>of</strong> legalclaims.” The processing <strong>of</strong> sensitive data by an employer may therefore be allowed for thepurpose <strong>of</strong> complying with the obligations imposed on him by labour law, ins<strong>of</strong>ar as such lawprovides adequate safeguards (Article 8 § 2, b) <strong>of</strong> Directive 95/46/EC). In order to shieldhimself against legal action for alleged discrimination on the basis <strong>of</strong> certain statistical data onthe composition <strong>of</strong> the workforce or the disproportionate impact <strong>of</strong> any system that he has putin place, an employer will have to continuously monitor the consequences <strong>of</strong> the decisions hetakes in terms <strong>of</strong> their repercussions on the different categories <strong>of</strong> workers or prospectiveworkers. To this end, he will have to process “sensitive” data such as membership <strong>of</strong> a ‘racial’or ethnic group, religion, or health (disability). Article 8 § 2 <strong>of</strong> Directive 95/46/EC stipulatesthat national law <strong>of</strong>fers specific safeguards, in other words, that it strictly regulates themethod used by an employer and the use he makes <strong>of</strong> those data, in particular the way inwhich those data are collected (only self-identification <strong>of</strong> the worker with certain categoriesmakes this classification acceptable), protection <strong>of</strong> the data (persons having access to thosedata and conditions <strong>of</strong> access), and exercise by the person concerned <strong>of</strong> rights <strong>of</strong> access andrectification.In this context, two situations merit special attention:• It would be appropriate to examine in which Member States <strong>of</strong> the European Union aperson who claims to have been discriminated against may demand from an employerthat he justifies his reliance on certain provisions, criteria or practices on the basis <strong>of</strong>statistical evidence submitted to the competent authority, although the employer isunable, under the applicable law on the protection <strong>of</strong> personal data, to process sensitivedata <strong>of</strong> his employees, even with their consent.• It would also be a good idea to examine, more broadly, according to the substance <strong>of</strong>the national measures to transpose the above-mentioned Directive 95/46/EC, theobstacles that an employer finds on his way when he wants to implement a policy <strong>of</strong>diversity in his workforce. Where appropriate, the introduction <strong>of</strong> exceptions to theprohibition <strong>of</strong> processing sensitive data, within the limits authorized by the Directive,may be contemplated in order to encourage the implementation <strong>of</strong> a diversity policy.Bearing in mind the considerable differences in national sensitivities hat exist in thisarea, it may not be desirable to impose a uniform solution. However, a regularexamination <strong>of</strong> the current situation, in particular by the social partners at the nationallevel, may be recommended. It should be stressed that the differences in approachbetween Member States on this issue precisely pose a threat to the prime objective <strong>of</strong>Directive 95/46/EC when it was adopted, which was to guarantee the free movement <strong>of</strong>data between Member States, particularly in order to facilitate cross-border economicactivity 290 . The realization <strong>of</strong> this objective would be threatened if differences inapproach between national laws have the effect <strong>of</strong> impeding the implementation <strong>of</strong> astaff policy encouraging diversity in companies that operate in several States 291 . The290 The criticisms levelled at Article 4 <strong>of</strong> Directive 95/46/EC during the evaluation procedure <strong>of</strong> this Directivehighlight this problem very well. This provision relates to the law applying to data protection. It obliges theeconomic operator who has activities in several Member States to comply with each <strong>of</strong> the national laws applicableto his activities in the countries where they are located.291 See Communication <strong>of</strong> the Commission on the implementation <strong>of</strong> Directive 95/46/CE, COM(2003) 265 final,15.5.2003.CFR-CDF.rep.UE.2003.en

100EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSCommission has taken the view that Internal Market legislation should « provide a levelplaying field for economic operators in different Member States; help to simplify theregulatory environment in the interests <strong>of</strong> both good governance and competitiveness;and tend to encourage rather than hinder cross-border activity within the EU » 292 .A proposal for a Directive on the processing <strong>of</strong> personal data and the protection <strong>of</strong> privacy inan occupational context is expected in early 2004. We will need to examine, in the light <strong>of</strong>this proposal, which answers may be formulated to those two questions.Prohibition <strong>of</strong> discrimination on the ground <strong>of</strong> membership <strong>of</strong> a national minorityBy prohibiting all discrimination on the ground <strong>of</strong> membership <strong>of</strong> a national minority, Article21 § 1 <strong>of</strong> the Charter obliges the institutions <strong>of</strong> the Union as well as the Member States, whenimplementing Union law, to bear in mind the impact that their initiatives may have onmembers <strong>of</strong> national minorities. However, the Charter does not define the concept <strong>of</strong> nationalminority. Nor is this concept defined in the Framework Convention for the Protection <strong>of</strong>National Minorities, opened for signature within the Council <strong>of</strong> Europe 293 . It should, however,be considered that the prohibition <strong>of</strong> discrimination on the ground <strong>of</strong> membership <strong>of</strong> anational minority <strong>of</strong>fers protection against discrimination to groups <strong>of</strong> persons who reside onthe territory <strong>of</strong> a State and are citizens there<strong>of</strong>; display distinctive ethnic, cultural, religious orlinguistic characteristics; are sufficiently representative, although smaller in number than therest <strong>of</strong> the population <strong>of</strong> that state or <strong>of</strong> a region <strong>of</strong> that state; and are motivated by a concernto preserve together that which constitutes their common identity, including their culture, theirtraditions, their religion or their language 294 .The implementation <strong>of</strong> equal treatment in favour <strong>of</strong> persons belonging to national minoritiesmay impose certain positive obligations: obligation to adopt adequate measures in order topromote, in all areas <strong>of</strong> economic, social, political and cultural life, full and effective equality(Article 4 § 2 <strong>of</strong> the Framework Convention); obligation to promote the conditions necessaryfor persons belonging to national minorities to maintain and develop their culture, and topreserve the essential elements <strong>of</strong> their identity, namely their religion, language, traditionsand cultural heritage (Article 5 § 1); obligation to encourage a spirit <strong>of</strong> tolerance and topromote mutual respect, understanding and co-operation among all persons living on theirterritory (Article 6 § 1); obligation to protect persons who may be subject to threats or acts <strong>of</strong>discrimination, hostility or violence as a result <strong>of</strong> their ethnic, cultural, linguistic or religiousidentity (Article 6 § 2); obligation to adopt adequate measures in order to facilitate access tothe media for persons belonging to national minorities (Article 9 § 4); obligation to promoteequal opportunities for access to education at all levels for persons belonging to nationalminorities (Article 12 § 3). Account should also be taken <strong>of</strong> the fact that, in accordance withthe interpretation <strong>of</strong> the Framework Convention for the Protection <strong>of</strong> National Minorities asgiven by the advisory committee set up by virtue <strong>of</strong> Article 26 there<strong>of</strong>, the obligations listedunder Article 6 <strong>of</strong> the Framework Convention also apply with regard to asylum-seekers andpersons belonging to other groups that have not traditionally lived in the country inquestion 295 .292 Commission <strong>of</strong> the European Communities, First report on the implementation <strong>of</strong> the Data Protection Directive(95/46/EC), cited above.293 CETS n° 157. This convention was opened for signature on 1 February 1995 and came into force on 1 February1998. It was ratified by all Member States <strong>of</strong> the Union, except Belgium, France, Greece, Luxembourg, theNetherlands and Latvia.294 Recommendation 1201(1993) adopted by the Parliamentary Assembly <strong>of</strong> the Council <strong>of</strong> Europe, proposing theadoption <strong>of</strong> an additional protocol on the rights <strong>of</strong> national minorities to the European Convention on HumanRights.295 See for example the Advisory Committee <strong>of</strong> the Framework Convention for the Protection <strong>of</strong> NationalMinorities, Opinion on Austria (ACFC/INF/OP/I(2002)009), 16 May 2002, par. 32CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003101Therefore, two series <strong>of</strong> recommendations may be issued. Firstly, the concern for theprotection <strong>of</strong> national minorities by the institutions <strong>of</strong> the Union should necessitate a moresystematic evaluation <strong>of</strong> the actions they take with regard to the capacity for nationalminorities to maintain and develop their culture and to preserve their religion, languages,traditions and cultural heritage. Such an evaluation is totally lacking today. However, itshould be considered an integral part <strong>of</strong> a verification <strong>of</strong> the conformity <strong>of</strong> the actions <strong>of</strong>European Union institutions with the requirements <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. Forthe time being, such an evaluation <strong>of</strong> the impact on national minorities <strong>of</strong> certain proposalsmay consist <strong>of</strong> a strictly legal compatibility review. For instance, such an evaluation may leadto the inclusion in the Green Paper from the Commission, “Procedural Safeguards forSuspects and Defendants in Criminal Proceedings throughout the European Union” 296 , <strong>of</strong> areference to Article 10 § 3 <strong>of</strong> the Framework Convention - guaranteeing members <strong>of</strong> nationalminorities free assistance <strong>of</strong> an interpreter -, which would have further strengthened theargument developed in point 5 <strong>of</strong> the Green Paper 297 . Moreover, this same Green Paper couldhave recalled that one <strong>of</strong> the fundamental rights to be granted to suspects or defendants incriminal proceedings is not to be classified in an ethnic group against their will, notably in therecords drawn up by the police 298 .In the medium term, the assessment <strong>of</strong> the impact <strong>of</strong> European Union initiatives on the rights<strong>of</strong> national minorities involves more than a purely legal analysis. It involves, first <strong>of</strong> all, thecollection and updating <strong>of</strong> statistical data on the ethnic breakdown <strong>of</strong> the population inquestion in order to make it easier to measure the impact 299 . It also involves a requirement <strong>of</strong>consultation, even participation, <strong>of</strong> representatives <strong>of</strong> the groups concerned. Article 15 <strong>of</strong> theFramework Convention for the Protection <strong>of</strong> National Minorities imposes the guarantee <strong>of</strong>“the effective participation <strong>of</strong> persons belonging to national minorities in cultural, social andeconomic life and in public affairs, in particular those affecting them”. This is an essentialguarantee. A true assessment <strong>of</strong> the impact <strong>of</strong> policies on minorities can only be carried outeffectively with the participation <strong>of</strong> representatives <strong>of</strong> those minorities 300 .The examples that have been given <strong>of</strong> the positive obligations incumbent on the publicauthorities under the Framework Convention for the Protection <strong>of</strong> National Minorities werechosen because they indicate the use that the European Community/Union could make <strong>of</strong> itspowers in order to contribute to this protection:• Council Directive 89/552/EEC <strong>of</strong> 3 October 1989 on the co-ordination <strong>of</strong> certainprovisions laid down by Law, Regulation or Administrative Action in Member Statesconcerning the pursuit <strong>of</strong> television broadcasting activities 301 , subsequently amendedby Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June296 COM(2003) 75 final <strong>of</strong> 19/2/2003. The Green Paper is discussed in more detail below under Article 48 <strong>of</strong> theCharter.297 See for example the Advisory Committee on the Framework Convention for the Protection <strong>of</strong> NationalMinorities, Opinion on the Czech Republic, ACFC/INF/OP/I(2002)002, 6 April 2001, par. 57: “The State Reportalso states that the Government's Council for National Minorities intends to propose an amendment to the CriminalCode so that defendants in criminal proceedings can receive all documents in their own language. In addition, itnotes the difficulties that arise in this area because <strong>of</strong> a shortage <strong>of</strong> interpreters <strong>of</strong> the Roma language. TheAdvisory Committee encourages the Czech authorities to take any measures likely to improve this situation”.298 Article 3 § 1 <strong>of</strong> the Framework Convention reads, “Every person belonging to a national minority shall have theright freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice orfrom the exercise <strong>of</strong> the rights which are connected to that choice”. See Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities, Opinion on Germany, 1 March 2002,ACFC/INF/OP/I(2002)008), par. 19-21.299 See the Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinionon Sweden (ACFC/INF/OP/I(2003)006), 20 February 2003, par. 71.300 For this reason, the Advisory Committee on the Framework Convention on the Protection <strong>of</strong> NationalMinorities “considers that national minorities should be consulted more systematically on decisions which affectthem” (Opinion on Lithuania, ACFC/INF/OP/I(2003)008, 21 February 2003, par. 104).301 OJ L 298 <strong>of</strong> 17/10/1989, p. 23.CFR-CDF.rep.UE.2003.en

102EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS1997 302 , could, when it is next amended, take into account the obligation which theAdvisory Committee on the Framework Convention derived from Article 9 § 4 <strong>of</strong> theFramework Convention for the Protection <strong>of</strong> National Minorities to reserve sufficienttime in public service broadcasting for minority languages and for programmesreserved for national minorities 303 .• In accordance with the authority that is indisputably given to them by Articles 29and 31, e), EU, the Member States, acting within the framework <strong>of</strong> the Union, mayadopt a framework decision to combat racism and xenophobia. The present report hasalready addressed this question. On several occasions, the Advisory Committee on theFramework Convention for the Protection <strong>of</strong> National Minorities has urged for aneffective protection, in particular in criminal law, for the victims <strong>of</strong> crimes inspired byracial or national hatred 304 .• The concept <strong>of</strong> universal service, which the Green Paper on services <strong>of</strong> generalinterest 305 cites among the obligations that are traditionally associated with theconcept <strong>of</strong> services <strong>of</strong> general economic interest, should in particular take account <strong>of</strong>the special situation <strong>of</strong> communities living in conditions <strong>of</strong> segregation, isolated fromthe rest <strong>of</strong> the community, especially when low income forms an obstacle to the use<strong>of</strong> paid transport. The case <strong>of</strong> the Roma present itself in those terms in severalStates 306 . With regard to Italy, the Advisory Committee on the Framework Conventionfor the Protection <strong>of</strong> National Minorities thus considered in its Opinion <strong>of</strong> 14September 2001, “For years the Roma have been isolated from the rest <strong>of</strong> thepopulation by being assembled in camps where living conditions and standards <strong>of</strong>hygiene are very harsh. Numerous concurring reports suggest that problems <strong>of</strong>overcrowding persist: in several camps some huts have neither running water norelectricity and proper drainage is <strong>of</strong>ten lacking. While some Italian Roma doundeniably continue to lead an itinerant or semi-itinerant life, the fact remains thatmany <strong>of</strong> them aspire to live under housing conditions fully comparable to thoseenjoyed by the rest <strong>of</strong> the population” 307 . With regard to the problem <strong>of</strong> schoolabsenteeism <strong>of</strong> Roma children in that country, the Committee notes, “Thetransportation problems facing Roma pupils who live in camps remote from schools,and the precarious financial circumstances <strong>of</strong> many parents, are also factors <strong>of</strong>302 Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June 1997 amending CouncilDirective 89/552/EEC on the co-ordination <strong>of</strong> certain provisions laid down by Law, Regulation or AdministrativeAction in Member States concerning the pursuit <strong>of</strong> television broadcasting activities, OJ L 202 <strong>of</strong> 30/7/1997, p. 60.303 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion onSweden (ACFC/INF/OP/I(2003)006), 20 February 2003, par. 81; Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities, Opinion on Lithuania, ACFC/INF/OP/I(2003)008, 21February 2003, par. 97; Advisory Committee on the Framework Convention for the Protection <strong>of</strong> NationalMinorities, Opinion on Hungary, ACFC/INF/OP/I(2001)004, par. 29; Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities, Opinion on Slovakia, ACFC/INF/OP/I(2001)001, 22September 2000, par. 32; Advisory Committee on the Framework Convention for the Protection <strong>of</strong> NationalMinorities, Opinion on the Czech Republic, ACFC/INF/OP/I(2002)002, 6 April 2001, par. 45.304 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion onSlovakia, ACFC/INF/OP/I(2001)001, 22 September 2000, par. 29; Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities, Opinion on the Czech Republic, ACFC/INF/OP/I(2002)002,6 April 2001, par. 40.305 COM(2003)270 final <strong>of</strong> 21 May 2003.306 See for example the report Breaking the Barriers – Romani Women and Access to Public Health Care,Strasbourg, 11 September 2003 (<strong>independent</strong> report prepared under the supervision <strong>of</strong> representatives <strong>of</strong> theCouncil <strong>of</strong> Europe, the OSCE High Commissioner on National Minorities, the Office for Democratic Institutionsand Human Rights (ODIHR), the European Monitoring Centre on Racism and Xenophonia <strong>of</strong> the European Union,and the Regional Office for Europe <strong>of</strong> the World Health Organization (WHO)), particularly Part II <strong>of</strong> the report,which describes types <strong>of</strong> direct and indirect discrimination by healthcare workers and institutions that Roma mayconfront in accessing health care.307 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion on Italy(ACFC/INF/OP/I(2002)007), 14 September 2001, par. 25.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003103absenteeism which should be addressed” 308 . A concern for the protection <strong>of</strong> nationalminorities would have made it possible to take better account <strong>of</strong> these data whendefining the requirement <strong>of</strong> universal service. This cannot be conceived as anobligation to supply services to all people, without discrimination, on the same“affordable” terms: it should take into account the special situation <strong>of</strong> certain groupswith specific needs.The most important contribution which the European Community could make to theprotection <strong>of</strong> minorities, within the framework <strong>of</strong> its existing powers, would be the adoption<strong>of</strong> a Directive specifically aimed at encouraging the integration <strong>of</strong> Roma. The Opinions <strong>of</strong>the Advisory Committee on the Framework Convention for the Protection <strong>of</strong> NationalMinorities leave no doubt as to the inadequacy <strong>of</strong> Directive 2000/43/EC <strong>of</strong> 29 June 2000,even though it protects the Roma against all discrimination on the ground <strong>of</strong> membership <strong>of</strong>an ethnic group. The urgent need to adopt a specific Directive based on Article 13 EC in orderto encourage the integration <strong>of</strong> the Roma minority not only stems from the grave concernsthat have been expressed in the evaluation reports on the situation <strong>of</strong> this minority in severalMember States <strong>of</strong> the European Union, and not just in the acceding States where the question<strong>of</strong> integration <strong>of</strong> the Roma arises with particular acuteness. This urgency also stems from theinappropriateness in several respects <strong>of</strong> Directive 2000/43/EC, which was not specificallyaimed at achieving the integration <strong>of</strong> groups that are traditionally excluded, such as the Roma.On the one hand, as has already been pointed out, the Directive does not give the Roma theguarantee <strong>of</strong> having access to reasonable accommodation matching their specific needs.However, the Roma should, for example, be able to have access to employment or obtainservices without being prevented from doing so by the fact <strong>of</strong> them wearing traditionalclothing 309 , even there where a justification may be given to support the prohibition <strong>of</strong> suchclothing. What should be justified, however, is the refusal to make an exception to a generalprohibition measure, whereas this measure prevents the Roma from preserving an essentialelement <strong>of</strong> their identity. The Roma should be able to choose to lead an itinerant or semiitinerantlifestyle, even there where there are good justifications for country planninglegislation which in principle denies them the availability <strong>of</strong> stopping places for theircaravans. Considering that the itinerant lifestyle is part <strong>of</strong> the Roma identity, nondiscriminationin access to housing as in principle imposed by Directive 2000/43/EC (Article3 § 1, h)) should be understood as obliging the authorities to provide sufficient stoppingplaces for caravans 310 . The obligation to provide effective accommodation where it isreasonable should be imposed, too, in the sphere <strong>of</strong> education. The Committee <strong>of</strong> Ministers <strong>of</strong>the Council <strong>of</strong> Europe, for instance, has recommended to the Member States <strong>of</strong> theOrganisation that « Educational policies for Roma/Gypsy children should be accompanied byadequate resources and the flexible structures necessary to meet the diversity <strong>of</strong> theRoma/Gypsy population in Europe and which take into account the existence <strong>of</strong> Roma/Gypsygroups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisagedhaving recourse to distance education, based on new communication technologies.” 311308 Ibid., par. 55.309 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion onFinland (ACFC/INF/OP/I(2001)002), par. 25; Advisory Committee on the Framework Convention for theProtection <strong>of</strong> National Minorities, Opinion on Sweden (ACFC/INF/OP/I(2003)006), par. 24.310 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion on theUnited Kingdom (ACFC/INF/OP/I(2002)006), 30 November 2001, par. 40-42. The Advisory Committee considersthat the lack <strong>of</strong> available sites throughout the United Kingdom is problematic from the point <strong>of</strong> view <strong>of</strong> Article 5 <strong>of</strong>the Framework Convention, which recognizes for members <strong>of</strong> national minorities the right to preserve the essentialelements <strong>of</strong> their identity, namely their traditions: “This combined with a range <strong>of</strong> legislative and administrativemeasures have the effect <strong>of</strong> inhibiting nomadism and effectively denying travellers the right to maintain andpreserve or develop one <strong>of</strong> the important elements <strong>of</strong> their culture and identity, namely travelling. The AdvisoryCommittee therefore considers that the Government and the devolved Executives should take further steps toensure the availability <strong>of</strong> additional adequate stopping places for Roma / Gypsies and Irish Travellers”.311 Recommendation No R (2000) 4 <strong>of</strong> the Committee <strong>of</strong> Ministers to member states on the education <strong>of</strong>Roma/Gypsy children in Europe (adopted by the Committee <strong>of</strong> Ministers on 3 February 2000 at the 696th meetingCFR-CDF.rep.UE.2003.en

104EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSSimilarly, Part IV <strong>of</strong> the report Breaking the Barriers – Romani Women and Access to PublicHealth Care, published by the Council <strong>of</strong> Europe in September 2003 – but which was theoutcome <strong>of</strong> a collaboration between this organization and the OSCE High Commissioner onNational Minorities, the Office for Democratic Institutions and Human Rights (ODIHR), andthe European Monitoring Centre on Racism and Xenophobia <strong>of</strong> the European Union –, clearlyhighlights the mechanisms that would make it possible to take better account <strong>of</strong> the specificsituation <strong>of</strong> the Roma, and particularly that <strong>of</strong> Romani women, in the access to health careservices. The policy <strong>of</strong> “openness” advocated by this report implies that health care workersbecome more familiar with Roma practices relating to health care and thus are able to makethe necessary accommodations for those practices in order to ensure a non-discriminatoryaccess to health care for the Roma.On the other hand, with regard to the necessity <strong>of</strong> achieving the integration <strong>of</strong> the Roma, themere prohibition <strong>of</strong> direct or indirect discrimination does not suffice. Equal treatment in thiscase involves taking into account a) the need to achieve desegregation <strong>of</strong> Roma in the area <strong>of</strong>housing and in particular <strong>of</strong> education, whether the situations <strong>of</strong> segregation that areencountered are the result <strong>of</strong> deliberate choices made by the public authorities 312 or <strong>of</strong>personal preferences 313 ; b) the need to compensate for past discrimination which resulted in aparticularly unfavourable situation for the Roma in social and economic life as a whole, byadopting a policy <strong>of</strong> affirmative action to integrate the Roma in the community 314 ; c) the needto encourage the integration <strong>of</strong> the Roma minority while respecting the attachment to anitinerant life which some <strong>of</strong> its members may still have. This calls for a policy that effectivelypromotes the free choice <strong>of</strong> members <strong>of</strong> that minority to either pursue an itinerant or semiitinerantlifestyle or to adopt a sedentary lifestyle which should be allowed to develop in<strong>of</strong> the Ministers' Deputies). The passage cited is the first <strong>of</strong> the Guiding principles <strong>of</strong> an education policy forRoma/Gypsy children in Europe appended to the recommendation.312 On the tendency to establish special classes for Roma children, de facto excluding them from normal classes,see Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion onSweden (ACFC/INF/OP/I(2003)006), 20 February 2003, par. 87; Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities, Opinion on Hungary, ACFC/INF/OP/I(2001)004, par. 22and especially par. 40-43: Advisory Committee on the Framework Convention for the Protection <strong>of</strong> NationalMinorities, Opinion on Slovakia, ACFC/INF/OP/I(2001)001, 22 September 2000, par. 39; Advisory Committee onthe Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion on the Czech Republic,ACFC/INF/OP/I(2002)002, 6 April 2001, par. 60-62. In principle, the Advisory Committee on the FrameworkConvention for the Protection <strong>of</strong> National Minorities considers that placing Roma children in such special schoolsshould take place only when it is absolutely necessary and always on the basis <strong>of</strong> consistent, objective andcomprehensive tests, avoiding culturally biased questions. On the other hand, the Advisory Committee approves <strong>of</strong>the establishment <strong>of</strong> so-called zero-classes, allowing the preparation <strong>of</strong> Roma children for basic school education,inter alia by improving their educational language skills. Furthermore the Advisory Committee considers thecreation <strong>of</strong> posts <strong>of</strong> Roma pedagogical advisors in schools to be a most positive step (Advisory Committee on theFramework Convention for the Protection <strong>of</strong> National Minorities, Opinion on the Czech Republic,ACFC/INF/OP/I(2002)002, 6 April 2001, par. 63). These measures should be regarded as forms <strong>of</strong> reasonableaccommodation for the benefit <strong>of</strong> the members <strong>of</strong> this minority. They may be seen as implementing theabovementioned Guiding principles <strong>of</strong> an education policy for Roma/Gypsy children in Europe appended toRecommendation No R (2000) 4 <strong>of</strong> the Committee <strong>of</strong> Ministers to member states on the education <strong>of</strong> Roma/Gypsychildren in Europe, which state in part that « Appropriate support structures should be set up in order to enableRoma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school”(Guiding Principles, 6); and that “The member states are invited to provide the necessary means to implement theabove-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majoritypupils” (Guiding Principles, 7).313 The Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities has found,with regard to Hungary, that there appears to be a “de facto increasing separation <strong>of</strong> schools, (…) where parentswithdraw their children from schools where Roma children go. Furthermore, the reluctance <strong>of</strong> Roma parents tosend their children to kindergarten appears to express a lack <strong>of</strong> confidence in the educational system. Whereas theHungarian authorities obviously should pay due respect to the principle <strong>of</strong> parental choice, they must at the sametime not remain passive before these undesirable developments and take measures to counteract them” (AdvisoryCommittee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion on Hungary,ACFC/INF/OP/I(2001)004, par. 43).314 See for example the report Breaking the Barriers – Romani Women and Access to Public Health Care.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003105reasonable conditions 315 . Directive 2000/43/EC <strong>of</strong> 29 June 2000 does not address the issue <strong>of</strong>segregation as such, that is to say, there where the separation <strong>of</strong> groups does not lead to onegroup being treated less favourably than another. It allows Member States to introducemeasures <strong>of</strong> positive action (Article 5), yet without imposing this, that is to say, withoutmaking it an essential element <strong>of</strong> effective equal treatment. Furthermore, it does not answerthe question <strong>of</strong> knowing how to allow members <strong>of</strong> a traditionally disadvantaged group tobecome integrated, without this resulting in a forced assimilation <strong>of</strong> the members <strong>of</strong> thatgroup, to the detriment <strong>of</strong> their right to preserve the constituent elements <strong>of</strong> their identity.Finally, the scope ratione materiae <strong>of</strong> Directive 2000/43/EC is too limited for the needs <strong>of</strong> theRoma. Their exclusion from a number <strong>of</strong> public services and essential social goods is theresult <strong>of</strong> their precarious administrative situation, their statelessness and, worst <strong>of</strong> all, the totallack <strong>of</strong> administrative documents attesting their legal status 316 . These documents are <strong>of</strong>tenexpensive to obtain for a highly impoverished people. A specific obstacle to their obtainingthese documents is also the requirement to furnish pro<strong>of</strong> <strong>of</strong> a fixed address to which socialbenefits can be paid, which de facto has the effect <strong>of</strong> excluding Roma who lead an itinerant orsemi-itinerant life. Among the key findings from the important report mentioned above,Breaking the Barriers – Romani Women and Access to Public Health Care, is this (p. 12):Many Roma lack identity cards, birth certificates and other <strong>of</strong>ficial documentation <strong>of</strong>their legal status. Such documents are <strong>of</strong>ten required to access public services.Statelessness, and the lack <strong>of</strong> status within the State <strong>of</strong> residence, as well as problemswith documentation impede access to a range <strong>of</strong> rights including access to health care.These situations are created by a variety <strong>of</strong> factors, including information and financialbarriers, eligibility criteria that have a disproportionate impact on Roma, anddiscrimination by local authorities. There is need for greater awareness amongauthorities <strong>of</strong> the situation <strong>of</strong> Roma, and greater flexibility in application <strong>of</strong> legal statusrequirements for Roma (as for other discriminated groups) in order that they may enjoyequal access to public services.Directive 2000/43/EC does not prohibit discrimination in the issuing <strong>of</strong> administrativedocuments. Such documents, however, are <strong>of</strong>ten required to access certain social benefitswhich constitute, particularly for marginalized peoples, an essential aid to integration. This isanother reason why a Directive specifically aimed at Roma is indispensable. Article 13 ECforms the appropriate legal basis for such a Directive.Age-based discrimination in motor vehicles civil liability insuranceDuring the period under scrutiny, the attention <strong>of</strong> the EU Network <strong>of</strong> Independent Experts inFundamental Rights has been brought to bear on the diversity <strong>of</strong> the practices <strong>of</strong> insurancecompanies in setting rates for motor vehicles civil liability insurance, and on the risks entailedby the principle <strong>of</strong> the freedom to set rates in the non-life insurance sector, combined with th<strong>eu</strong>se <strong>of</strong> the actuarial method by insurers. This question relates to fundamental rights, firstlybecause <strong>of</strong> the importance for the individual to be able to move freely – especially if he/sheresides in rural areas or areas not well served by the public transportation system -, andsecondly because <strong>of</strong> the risk <strong>of</strong> discrimination. When it proposed to the Council the adoption<strong>of</strong> a directive implementing the principle <strong>of</strong> equal treatment between women and men in theaccess to and supply <strong>of</strong> goods and services 317 , the Commission noted that, especially in thesectors <strong>of</strong> life insurance, health insurance and motor vehicle insurance, sex was <strong>of</strong>ten used –as a useful proxy – in the place <strong>of</strong> other, more reliable indicators such as life habits and modes<strong>of</strong> consumption. The Commission considered that it ought to react to such a form <strong>of</strong>315 Advisory Committee on the Framework Convention for the Protection <strong>of</strong> National Minorities, Opinion on Italy,ACFC/INF/OP/I(2002)007, par. 25.316 This was also underlined in the contribution which the European Roma Rights Center presented at the hearingorganized by the EU Network <strong>of</strong> Independent Experts on Fundamental Rights on 16 October 2003.317 COM(2003)657 final. See hereafter, under Article 23 <strong>of</strong> the Charter.CFR-CDF.rep.UE.2003.en

106EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSdiscrimination, because « equal treatment for women and men is a fundamental right and (…)the freedom to set tariffs must be subject to that right » 318 . It also took into account the factthat it would be difficult for either individual insurers or individual Member States to movetowards the elimination <strong>of</strong> sex discrimination : « it is difficult for individual insurancecompanies to move to sex-n<strong>eu</strong>tral pricing in the face <strong>of</strong> competition from other companies, asthe members <strong>of</strong> the sex which benefits from the change will tend to move disproportionatelyto that company, while those who are disadvantaged will tend to leave it, thus leaving thecompany with a portfolio <strong>of</strong> risks which it is not able to cover without a general increase inpremiums » ; and in the context <strong>of</strong> the single market in insurance, a move by a single MemberState to require unisex tariffs « could expose its insurers to undercutting in part <strong>of</strong> its marketby businesses in other Member States ». The Commission concluded that it should act toeliminate sex discrimination in insurance. The same reasoning would appear to apply withrespect to motor vehicle third-party liability insurance.The Community legislator is invited to act with a view <strong>of</strong> prohibiting any discriminationbased on age in the motor vehicle third-party liability insurance 319 . Such an intervention couldbe all the more desirable as there currently remains a doubt as to the possibility for theMember States to impose such a prohibition. In an exchange <strong>of</strong> correspondance with aconsumers’ organisation, the Commission would have taken the position that the principle <strong>of</strong>the freedom to set rates in the non-life insurance sector would be an obstacle for the nationallegislator to exclude the insurers from setting tariffs on the basis <strong>of</strong> age 320 . It is true that in ajudgment <strong>of</strong> 25 February 2003 321 , the European Court <strong>of</strong> Justice has taken the view that « theCommunity legislature clearly meant to secure the principle <strong>of</strong> freedom to set rates in the nonlifeinsurance sector, including the area <strong>of</strong> compulsory insurance such as insurance coveringthird-party liability arising from the use <strong>of</strong> motor vehicles » (Recital 29), to conclude that thisprinciple was breached by the introduction and maintenance in force by the Italian Republic<strong>of</strong> « rate-freezing rules applicable to all contracts <strong>of</strong> insurance in respect <strong>of</strong> third-partyliability arising from the use <strong>of</strong> motor vehicles in relation to risks situated within Italianterritory, without distinguishing between insurance companies having their head <strong>of</strong>fice inItaly and those conducting their business in Italy through branch <strong>of</strong>fices or under the freedomto provide services ». This Report needs not comment on the reading <strong>of</strong> this case-law by theEuropean Commission, nor <strong>of</strong> course does it have to analyse the formulation which is given tothe « principle <strong>of</strong> freedom to set rates in the non-life insurance sector » in the judgment <strong>of</strong> 25February 2003 322 . It will suffice to note here that, if the Commission considers, whether318 Explanatory Memorandum, at p. 8.319 With respect to race or ethnic origin, the obligation <strong>of</strong> the national legislator to prohibit discrimination based onsuch criteria in the insurance is provided by Directive 2000/43/EC.320 Answer <strong>of</strong> 5 June 2003 to the letter <strong>of</strong> Test-Achats, <strong>of</strong> 18 April 2003, p. 4. The EU Network <strong>of</strong> IndependentExperts in Fundamental Rights was not provided with a copy <strong>of</strong> the position <strong>of</strong> the Commission as expressed inthis answer, however.321 ECJ, 25 February 2003, Commission v. Italy, C-59/01, nyr322 The principle <strong>of</strong> « freedom to set rates in the non-life insurance sector » is deduced by the Court from Articles6, 29 and 39 <strong>of</strong> Council Directive 92/49/EEC <strong>of</strong> 18 June 1992 on the coordination <strong>of</strong> laws, regulations andadministrative provisions relating to direct insurance other than life assurance and amending Directives73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ L 228, p. 1). The first provision citedreplaces Article 8(3) <strong>of</strong> Directive 73/239/EEC by the followig text : « Nothing in this Directive shall preventMember States from maintaining in force or introducing laws, regulations or administrative provisions requiringapproval <strong>of</strong> the memorandum and articles <strong>of</strong> association and communication <strong>of</strong> any other documents necessary forthe normal exercise <strong>of</strong> supervision. Member States shall not, however, adopt provisions requiring the priorapproval or systematic notification <strong>of</strong> general and special policy conditions, scales <strong>of</strong> premiums and forms andother printed documents which an undertaking intends to use in its dealings with policyholders. Member Statesmay not retain or introduce prior notification or approval <strong>of</strong> proposed increases in premium rates except as part <strong>of</strong>general price-control systems ». The second provision cited by the Court says : « Member States shall not adoptprovisions requiring the prior approval or systematic notification <strong>of</strong> general and special policy conditions, scales <strong>of</strong>premiums, or forms and other printed documents which an insurance undertaking intends to use in its dealings withpolicy-holders. They may only require non-systematic notification <strong>of</strong> those policy conditions and other documentsfor the purpose <strong>of</strong> verifying compliance with national provisions concerning insurance contracts, and thatrequirement may not constitute a prior condition for an undertaking's carrying on its business. Member States mayCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003107rightly or wrongly, that the national legislator may not without violating this principle protectyounger or older drivers from age-based discrimination in the setting <strong>of</strong> the rates applicable tothe compulsory third-party liability insurance, it must consider with great care whether aCommunity initiative based on Article 13 EC should not compensate for the incapacity <strong>of</strong> theMember States to act against this form <strong>of</strong> discrimination.Non-discrimination on grounds <strong>of</strong> nationality between nationals <strong>of</strong> Member States in thescope <strong>of</strong> application <strong>of</strong> the TreatiesAccording to the first paragraph <strong>of</strong> Article 12 EC, « Within the scope <strong>of</strong> application <strong>of</strong> thisTreaty, and without prejudice to any special provisions contained therein, any discriminationon grounds <strong>of</strong> nationality shall be prohibited ». Article 17 EC provides that « 1. Citizenship <strong>of</strong>the Union is hereby established. Every person holding the nationality <strong>of</strong> a Member State shallbe a citizen <strong>of</strong> the Union. Citizenship <strong>of</strong> the Union shall complement and not replace nationalcitizenship. 2. Citizens <strong>of</strong> the Union shall enjoy the rights conferred by this Treaty and shallbe subject to the duties imposed thereby » 323 . In a judgment <strong>of</strong> 2 October 2003 in the GarciaAlvello case, the European Court <strong>of</strong> Justice considers that constitutes a discrimination basedon nationalité, prohibited under Articles 12 and 17 EC, the refusal by the Belgian authoritiesto authorize the children <strong>of</strong> Mr Garcia Alvello to adopt as family name a combination <strong>of</strong> thename <strong>of</strong> their father and <strong>of</strong> their mother, as according to the rules on the determination <strong>of</strong> thefamily name in Spain. According to the Court, « Articles 12 EC and 17 EC must be construedas precluding, in circumstances such as those <strong>of</strong> the case in the main proceedings, theadministrative authority <strong>of</strong> a Member State from refusing to grant an application for a change<strong>of</strong> surname made on behalf <strong>of</strong> minor children resident in that State and having dual nationality<strong>of</strong> that State and <strong>of</strong> another Member State, in the case where the purpose <strong>of</strong> that application isto enable those children to bear the surname to which they are entitled according to the lawand tradition <strong>of</strong> the second Member State » (Recital 45). According to the Court, byexercising his rights to circulate freely as a Citizen <strong>of</strong> the Union, Mr Garcia Alvello hassituated himself in the scope <strong>of</strong> application ratione materiae <strong>of</strong> EC law, thus justifying theapplication <strong>of</strong> Article 12 EC. The Court recalls that « The situations falling within the scoperatione materiae <strong>of</strong> Community law include those involving the exercise <strong>of</strong> the fundamentalfreedoms guaranteed by the Treaty, in particular those involving the freedom to move andreside within the territory <strong>of</strong> the Member States, as conferred by Article 18 EC » (Recital24) 324 .not retain or introduce prior notification or approval <strong>of</strong> proposed increases in premium rates except as part <strong>of</strong>general price-control systems » (Article 29 <strong>of</strong> Directive 92/49/CEE). The third provision, Article 39 <strong>of</strong> Directive92/49/CEE, states in para. (2) and (3) that « (2) The Member State <strong>of</strong> the branch or <strong>of</strong> the provision <strong>of</strong> servicesshall not adopt provisions requiring the prior approval or systematic notification <strong>of</strong> general and special policyconditions, scales <strong>of</strong> premiums, or forms and other printed documents which an undertaking intends to use in itsdealings with policyholders. It may only require an undertaking that proposes to carry on insurance business withinits territory, under the right <strong>of</strong> establishment or the freedom to provide services, to effect non-systematicnotification <strong>of</strong> those policy conditions and other documents for the purpose <strong>of</strong> verifying compliance with itsnational provisions concerning insurance contracts, and that requirement may not constitute a prior condition foran undertaking's carrying on its business. (3) The Member State <strong>of</strong> the branch or <strong>of</strong> the provision <strong>of</strong> services maynot retain or introduce prior notification or approval <strong>of</strong> proposed increases in premium rates except as part <strong>of</strong>general price-control systems. » The Court considers that these provisions « meant to secure the principle <strong>of</strong>freedom to set rates in the non-life insurance sector, including the area <strong>of</strong> compulsory insurance such as insurancecovering third-party liability arising from the use <strong>of</strong> motor vehicles » (Recital 29). It considers that Article 28 <strong>of</strong>Directive 92/49/CEE (« The Member State in which a risk is situated shall not prevent a policyholder fromconcluding a contract with an insurance undertaking authorised under the conditions <strong>of</strong> Article 6 <strong>of</strong> Directive73/239/EEC, as long as that does not conflict with legal provisions protecting the general good in the MemberState in which the risk is situated ») « cannot in any circumstances be so interpreted as to negate the effectiveness<strong>of</strong> the provisions mentioned in paragraph 28 above, which expressly set out the grounds justifying derogation fromthe principle that undertakings should be free to set rates » (Recital 31).323 C.J.C.E., 5 juin 1997, Uecker et Jacquet, aff. jtes C-64/96 et C-65/96, Rec. p. I-3171, point 23.324 See ECJ, 24 November 1998, Bickel and Franz, C-274/96, ECR p. I-7637, Recitals 15 and 16.CFR-CDF.rep.UE.2003.en

108EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSArticle 22. Cultural, religious and linguistic diversityThe question <strong>of</strong> the protection <strong>of</strong> national minorities through the requirement <strong>of</strong> nondiscriminationon the ground <strong>of</strong> membership <strong>of</strong> a national minority is discussed under Article21 <strong>of</strong> the Charter.Article 23. Equality between men and womenExtension <strong>of</strong> the requirement <strong>of</strong> equal treatment between women and men in the access to,and the provision <strong>of</strong>, goods and servicesThe main development in connection with this provision <strong>of</strong> the Charter <strong>of</strong> FundamentalRights is the Commission proposal for a Council Directive implementing the principle <strong>of</strong>equal treatment between women and men in the access to, and the provision <strong>of</strong>, goods andservices, for which Article 13 EC would constitute the legal basis 325 . However important andwelcome this initiative may be, there is little to remark on it at this stage. The Directive isindeed closely inspired by Council Directive 2000/43/EC <strong>of</strong> 29 June 2000 implementing theprinciple <strong>of</strong> equal treatment between persons irrespective <strong>of</strong> racial or ethnic origin 326 , to suchan extent that the concepts to which the proposal claims to refer are already familiar.It is, however, regrettable that the proposed Preamble justifies an exemption from theapplication <strong>of</strong> the principle <strong>of</strong> equal treatment between women and men for the content <strong>of</strong>media or advertising by invoking respect for the freedom and pluralism <strong>of</strong> the media (11 threcital <strong>of</strong> the proposal). There is no cause to justify by a reference to fundamental rights whatis the result, fortunate or not, <strong>of</strong> a political arbitration between conflicting interests. On theone hand, such a reference testifies to a poor understanding <strong>of</strong> the freedoms that are invoked.The UN Human Rights Committee clearly pointed out in its General Comment n° 28,“Equality <strong>of</strong> Rights between Men and Women”, adopted at its 1834 th meeting (sixty-eighthsession) on 29 March 2000, “As the publication and dissemination <strong>of</strong> obscene andpornographic material which portrays women and girls as objects <strong>of</strong> violence or degrading orinhuman treatment is likely to promote these kinds <strong>of</strong> treatment <strong>of</strong> women and girls, Statesparties should provide information about legal measures to restrict the publication ordissemination <strong>of</strong> such material” (§ 22). If the European Court <strong>of</strong> Human Rights has not yethad the opportunity to rule on the scope <strong>of</strong> the freedom <strong>of</strong> expression guaranteed underArticle 10 <strong>of</strong> the European Convention on Human Rights in this context, it is probablybecause it would consider that this does not prevent justified legislative action in the name <strong>of</strong>protecting the equal dignity <strong>of</strong> women 327 . On the other hand, care should be taken thatreference in this context to the freedom and pluralism <strong>of</strong> the media does not serve as aprecedent when it comes to justifying action in order to combat incitement to racial hatred ordiscrimination, for instance. The fact that Article 22b <strong>of</strong> Council Directive 89/552/EEC <strong>of</strong> 3October 1989 on the co-ordination <strong>of</strong> certain provisions laid down by Law, Regulation orAdministrative Action in Member States concerning the pursuit <strong>of</strong> television broadcastingactivities 328 , amended by Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council<strong>of</strong> 30 June 1997 329 , provides, “Member States shall ensure that broadcasts do not contain anyincitement to hatred on grounds <strong>of</strong> race, sex, religion or nationality”, suffices to show thefragility <strong>of</strong> reliance upon freedom <strong>of</strong> expression in the context in which it appears in the325 COM(2003)657 final, <strong>of</strong> 5/11/2003.326 OJ L 180 <strong>of</strong> 19/7/2000, p. 22.327 See, mutatis mutandis, Eur. Ct. H.R. (GC), Refah Partisi (Welfare Party) et al. v. Turkey, judgment <strong>of</strong> 13February 2003, application nos. 41340/98, 41342/98, 41343/98 and 41344/98, here §§ 122-124.328 OJ L 298 <strong>of</strong> 17/10/1989, p. 23.329 Directive 97/36/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 June 1997 amending CouncilDirective 89/552/EEC on the co-ordination <strong>of</strong> certain provisions laid down by Law, Regulation or AdministrativeAction in Member States concerning the pursuit <strong>of</strong> television broadcasting activities, OJ L 202 <strong>of</strong> 30/7/1997, p. 60.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003109Preamble <strong>of</strong> the Directive implementing the principle <strong>of</strong> equal treatment between women andmen in the access to, and the provision <strong>of</strong>, goods and services, the adoption <strong>of</strong> which isproposed to the Council. It is therefore advisable to omit the reference made in this Preambleto the freedom <strong>of</strong> expression and pluralism <strong>of</strong> the media.It is also regrettable that recourse to the submission <strong>of</strong> statistical evidence in order to give riseto a presumption <strong>of</strong> discrimination does not have to be explicitly defined as a means <strong>of</strong> pro<strong>of</strong>which the Member States must allow. Allocation <strong>of</strong> the burden <strong>of</strong> pro<strong>of</strong> is allowed in civilcases (Article 8 §§ 1 and 3). However, a wide margin <strong>of</strong> appreciation is left to the MemberStates as regards the nature <strong>of</strong> the “facts” <strong>of</strong> which the presentation by the victim wouldpermit the presumption <strong>of</strong> direct or indirect discrimination. The necessity that the victim’ssubmission satisfies the requirements <strong>of</strong> effectiveness must define the limits, in this respect,<strong>of</strong> the procedural autonomy <strong>of</strong> the Member States. It is worth recalling in this connection that,in the Enderby case, it is by taking into account the fact that the plaintiff had submittedstatistical evidence making it possible to establish a prima facie case <strong>of</strong> discrimination that theCourt considered, “Where there is a prima facie case <strong>of</strong> discrimination, it is for the employerto show that there are objective reasons for the difference in pay. Workers would be unable toenforce the principle <strong>of</strong> equal pay before national courts if evidence <strong>of</strong> a prima facie case <strong>of</strong>discrimination did not shift to the employer the onus <strong>of</strong> showing that the pay differential is notin fact discriminatory” 330 . The Community legislator should take this case law intoconsideration when drafting Article 8 <strong>of</strong> the Directive and the 17 th recital <strong>of</strong> the Preamble.Developments within the case-lawThis new development will build on an acquis <strong>of</strong> European Community Law in the field <strong>of</strong>equal treatment between women and men, which is already important. However, secondaryEC Law adopted at first on the basis <strong>of</strong> Articles 119 and 235 <strong>of</strong> the EEC Treaty, and nowunder Article 141 EC, is simply a partial implementation <strong>of</strong> the fundamental right to equaltreatment, which figures among the general principles <strong>of</strong> Community law which the EuropeanCourt <strong>of</strong> Justice ensures the respect <strong>of</strong>, in conformity with Article 220 EC 331 . It follows that« a provision <strong>of</strong> a directive adopted by the Council in disregard <strong>of</strong> the principle <strong>of</strong> equaltreatment for men and women is vitiated by illegality » 332 .In the judgment <strong>of</strong> 9 September 2003 where it recalls this principles, the Court <strong>of</strong> Justiceconcludes that a provision <strong>of</strong> a Directive stipulating that training in general medicalpractice 333 , although it may be organized on a part-time basis, must at least comprise a periodduring which it is full-time, does not constitute a violation <strong>of</strong> the principle <strong>of</strong> equal treatmentbetween men and women. The Court does recognize that such a requirement places women ata particular disadvantage as compared with men, as « the percentage <strong>of</strong> women working parttimeis much higher than that <strong>of</strong> men working on a part-time basis. That fact, which can beexplained in particular by the unequal division <strong>of</strong> domestic tasks between women and men,shows that a much higher percentage <strong>of</strong> women than men wishing to train in general medicinehave difficulties in working full-time during part <strong>of</strong> their training » (Recital 35). The Courthowever considers that adequate preparation for the effective exercise <strong>of</strong> general medicalpractice may require a certain number <strong>of</strong> periods <strong>of</strong> full-time training, as it « enables doctorsto acquire the experience necessary, by following patients' pathological conditions as theymay evolve over time, and to obtain sufficient experience in the various situations likely to330 ECJ, 27 October 1993, Enderby, C-127/92, ECR, p. I-5535, Recital 18.331 ECJ, 15 June 1978, Defrenne (« n°3 »), 149/77, ECR p. 1365, Recitals 26 and 27, and ECJ, 30 April 1996, P. v.S., C-13/94, ECR p. I-2143, Recital 19.332 ECJ, 9 September 2003, Rinke, C-25/02, Recital 27.333 Article 5 <strong>of</strong> Council Directive 86/457/EEC <strong>of</strong> 15 September 1986 on specific training in general medicalpractice (OJ 1986 L 267, p. 26), since incorporated as Article 34 <strong>of</strong> Council Directive 93/16/EEC <strong>of</strong> 5 April 1993to facilitate the free movement <strong>of</strong> doctors and the mutual recognition <strong>of</strong> their diplomas, certificates and otherevidence <strong>of</strong> formal qualifications (OJ 1993 L 165, p. 1).CFR-CDF.rep.UE.2003.en

110EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSarise more particularly in general medical practice » (Recital 40). Therefore the Courtconcludes that the the requirement whose validity was questioned must be regarded asjustified by objective factors <strong>independent</strong> <strong>of</strong> any discrimination on grounds <strong>of</strong> sex, and doesnot constitute an indirect sex discrimination.It should be emphasized that the judgment does not exclude that may commit such adiscrimination the national legislator who would impose a period <strong>of</strong> full-time trainingdisproportionately longer than what would be justified under the stated objectives.Considering the risk that, under the pretext <strong>of</strong> implementing Article 5 <strong>of</strong> Directive 86/457, thenational legislator commits such a discrimination, it would be strongly advisable to fix themaximum limit which may not be exceeded, in accordance with what may be justified by theneed to fulfil the objective <strong>of</strong> the Community legislation.A second case may be considered as significant during the period under scrutiny. The Court<strong>of</strong> Justice considers that the decision <strong>of</strong> the employer taking an employee's pregnancy intoconsideration constitutes a direct discrimination based on sex, prohibited by Article 5 <strong>of</strong>Directive 76/207/EEC 334 . Ms Busch has chosen, in full agreement with her employer, aprivate clinic, to put an end prematurely to her parental leave, to take up her employment withthe clinic again. She then had announced that she was pregnant, which meant that she wouldreceive a maternity allowance higher than the parental leave allowance, as well as thesupplementary allowance paid by the employer. Her employer alleged that she has breachedthe duty <strong>of</strong> employee loyalty inherent in any contract <strong>of</strong> employment, as she had not informedthe employer before returning to work that she was pregnant. The Court however consideredthat she did not have such an obligation to inform the employer : « Since the employer maynot take the employee's pregnancy into consideration for the purpose <strong>of</strong> applying her workingconditions, she is not obliged to inform the employer that she is pregnant. » (Recital 40). Theabsolute character <strong>of</strong> the protection <strong>of</strong> the employee from discrimination on the basis <strong>of</strong>pregnancy – which constitutes a direct discrimination based on sex, according to the constantcase-law <strong>of</strong> the Court 335 – is thus reinforced by this judgment.In the case <strong>of</strong> Dory 336 , the Court was requested to interpret Article 2 <strong>of</strong> Council Directive76/207/EEC <strong>of</strong> 9 February 1976 on the implementation <strong>of</strong> the principle <strong>of</strong> equal treatment formen and women as regards access to employment, vocational training and promotion, andworking conditions 337 , in a context where a man was complaining that the limitation <strong>of</strong>compulsory military service in Germany to men constituted a direct discrimination on theground <strong>of</strong> sex. Mr Dory asserted that compulsory military service has the effect <strong>of</strong> prohibitingthe exercise <strong>of</strong> an occupation during the period <strong>of</strong> that service and <strong>of</strong> delaying access toemployment. The Court rejected the argument. In accordance with its previous case-law 338 , itstated that « decisions <strong>of</strong> the Member States concerning the organisation <strong>of</strong> their armed forcescannot be completely excluded from the application <strong>of</strong> Community law, particularly whereobservance <strong>of</strong> the principle <strong>of</strong> equal treatment <strong>of</strong> men and women in connection withemployment, including access to military posts, is concerned. But it does not follow thatCommunity law governs the Member States' choices <strong>of</strong> military organisation for the defence<strong>of</strong> their territory or <strong>of</strong> their essential interests. » (Recital 35) Indeed, the Court considers that« It is for the Member States, which have to adopt appropriate measures to ensure theirinternal and external security, to take decisions on the organisation <strong>of</strong> their armed forces »(Recital 36). The judgment appears to reflect the idea embodies in Article 6(3) EU – althoughthis provision, cited by the Commission in its submissions to the Court, is not cited by the334 ECJ, 27 February 2003, Busch, C-320/01, nyr.335 ECJ, 8 November 1990, Dekker, C-177/88, ECR I-3941.336 ECJ, 11 March 2003, Dory, C-186/01, nyr.337 OJ 1976 L 39, p. 40. This Directive has since been modified by Directive 2002/73/EC <strong>of</strong> 23 September 2002,OJ L 269 <strong>of</strong> 5.10.2002, p. 15.338 ECJ, 11 January 2000, Kreil, C-285/98, ECR I-69 (constitutes a violation <strong>of</strong> the principle <strong>of</strong> equal treatmentirrespective <strong>of</strong> sex the exclusion <strong>of</strong> women from all the positions in the German army).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003111Court itself – that the Union must respect the national identity <strong>of</strong> the Member States,especially where the essential interests <strong>of</strong> the States are at stake.In the case <strong>of</strong> Kutz-Bauer 339 , the Court was requested to answer whether Articles 2(1) and5(1) <strong>of</strong> Directive 76/207 preclude a provision <strong>of</strong> a collective agreement applicable to thepublic service organizing a the scheme <strong>of</strong> part-time work for older employees but which,although it allows male and female employees to take advantage <strong>of</strong> the scheme, reserves theright to participate in the scheme <strong>of</strong> part-time work to servants which have not becomeeligible for a retirement pension at the full rate under the statutory old-age insurance scheme.Indeed, as the class <strong>of</strong> persons eligible for such a pension at the age <strong>of</strong> 60 consisted almostexclusively <strong>of</strong> women whereas the class <strong>of</strong> persons entitled to receive such a pension onlyfrom the age <strong>of</strong> 65 consisted almost exclusively <strong>of</strong> men, the definition <strong>of</strong> the circle <strong>of</strong>beneficiaries <strong>of</strong> the scheme could be considered to constitute an indirect discriminationagainst women. The Court summarizes thus : « while both female and male workers maybenefit from the scheme <strong>of</strong> part-time working from the age <strong>of</strong> 55 with the employer's consent,the great majority <strong>of</strong> workers entitled to benefit from the scheme for a period <strong>of</strong> five yearsfrom the age <strong>of</strong> 60 are male » (Recital 49). It is for the national court to decide whether themeasure may nevertheless be justified by objective factors unrelated to any discriminationbased on sex. However, the European Court <strong>of</strong> Justice recalls that « although budgetaryconsiderations may underlie a Member State's choice <strong>of</strong> social policy and influence the natureor scope <strong>of</strong> the social protection measures which it wishes to adopt, they do not in themselvesconstitute an aim pursued by that policy and cannot therefore justify discrimination againstone <strong>of</strong> the sexes » (Recital 59) : therefore, may not be considered an objective justification forthe measure in question the mere desire to avoid the additional burden associated withallowing female workers to take advantage <strong>of</strong> the scheme at issue.Article 24. The rights <strong>of</strong> the childThere is no new significant development to be reported for the period under scrutiny, underthis provision <strong>of</strong> the Charter.Article 25. The rights <strong>of</strong> the elderlyThere are no significant new developments to report under this provision <strong>of</strong> the Charter forthe period under scrutiny. However, it will be noted that the Member States should haveimplemented Council Directive 2000/78/EC establishing a general framework for equaltreatment in employment and occupation by 2 December 2003. Acting under its powersrecognized by Article 211 EC, the Commission has rightly insisted upon this deadline beingcomplied with, and closely monitored the initiatives adopted by the Member States toconform themselves to the Directive.Article 26. Integration <strong>of</strong> persons with disabilitiesThe institutions <strong>of</strong> the Union have taken an impressive number <strong>of</strong> initiatives recently toencourage the social and pr<strong>of</strong>essional integration <strong>of</strong> persons with disabilities. The mostimportant <strong>of</strong> these initiatives are the following :339 ECJ, 20 March 2003, Kutz-Bauer, C-187/00, nyr. See also, equally delivered during the period under scrutinybut which restates the applicable principles to such situations, the judgment <strong>of</strong> 11 September 2003, Steinicke, C-77/02, nyr (advantageous scheme for older public servants in the German federal administration, but which wasthen reserved to public servants having worked during at least three years on a full-time basis during the previousfive years). At last, see ECJ, 23 October 2002, Schönheit and Becker, C-4/02 and C-5/02, nyr.CFR-CDF.rep.UE.2003.en

112EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS• In adopting Commission Regulation (EC) No 2204/2002 <strong>of</strong> 12 December 2002 on theapplication <strong>of</strong> Articles 87 and 88 <strong>of</strong> the EC Treaty to State aid for employment 340 , theCommission has determined that certain categories <strong>of</strong> State aid schemes which seek t<strong>of</strong>avor employment, and especially employment <strong>of</strong> target groups, including workers withdisabilities 341 , may be considered compatible with the common market within themeaning <strong>of</strong> Article 87(3) EC and be exempted from the notification requirement <strong>of</strong>Article 88(3) EC. Ins<strong>of</strong>ar as it exempts State aids benefiting the pr<strong>of</strong>essional integration<strong>of</strong> disadvantaged workers or workers with disabilities, the Regulation is based on thefinding, stated in its Preamble, that “Certain categories <strong>of</strong> worker experience particulardifficulty in finding work, because employers consider them to be less productive. Thisperceived lower productivity may be due either to lack <strong>of</strong> recent experience <strong>of</strong>employment (for example, young workers, long-term unemployed) or to permanenthandicap. Employment aid intended to encourage firms to recruit such individuals isjustified by the fact that the lower productivity <strong>of</strong> these workers reduces the financialadvantage accruing to the firm and by the fact that the workers also benefit from themeasure and are likely to be excluded from the labour market unless employers are<strong>of</strong>fered such incentives. It is therefore appropriate to allow schemes providing such aid,whatever the size or location <strong>of</strong> the beneficiary » (Preamble, Recital 23).To avoid the risk that enterprises benefiting from aid encouraging the employment <strong>of</strong>workers with disabilities whose productivity is perceived as lower will put them at acompetitive advantage, the Commision considers however that « Schemes providing aidfor [enabling them to remain in the labour market and possibly including participationin sheltered employment] should be exempted from notification provided that the aidcan be shown to be no more than necessary to compensate for the lower productivity <strong>of</strong>the workers concerned, the ancillary costs <strong>of</strong> employing them or the costs <strong>of</strong>establishing or maintaining sheltered employment. » (Recital 25). Article 6 <strong>of</strong> theRegulation may play an especially important role in the future, as it exempts thedditional costs <strong>of</strong> employment <strong>of</strong> disabled workers, ins<strong>of</strong>ar as it does not exceed « thelevel needed to compensate for any reduced productivity resulting from the disabilities<strong>of</strong> the worker or workers, and for any <strong>of</strong> the following costs: (a) costs <strong>of</strong> adaptingpremises; (b) costs <strong>of</strong> employing staff for time spent solely on the assistance <strong>of</strong> thedisabled worker or workers; (c) costs <strong>of</strong> adapting or acquiring equipment for their use,which are additional to those which the beneficiary would have incurred if employingworkers who are not disabled, over any period for which the disabled worker orworkers are actually employed ». This constitutes an encouragement to the MemberStates to facilitate the employer’s obligation to provide the form <strong>of</strong> accommodationrequired by the employee with disabilities for his/her effective functioning, and thus – ifStates loyally contribute to the objective <strong>of</strong> the pr<strong>of</strong>essional integration <strong>of</strong> workers withdisabilities – , could maximize the potential <strong>of</strong> Directive 2000/78/EC with respect tothis catagory <strong>of</strong> workers.• On 15 July 2003, the Council adopted a Resolution on promoting the employment andsocial integration <strong>of</strong> people with disabilities 342 in which, referring inter alia to Articles21 and 26 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, it calls upon the Member States to« promote the full integration and participation <strong>of</strong> people with disabilities in all aspects<strong>of</strong> society, recognising that they have equal rights with other citizens » 343 ; to « removebarriers to the integration and participation <strong>of</strong> people with disabilities in the labourmarket, by enforcing equal treatment measures and improving integration and340 OJ L 337 <strong>of</strong> 13.12.2002, p. 3.341 Article 2, g) <strong>of</strong> the Regulation defines the "disabled worker" as « any person either: (i) recognised as disabledunder national law; or (ii) having a recognised, serious, physical, mental or psychological impairment ».342 OJ C 175 <strong>of</strong> 24.7.2003, p. 1.343 See also, Council Resolution <strong>of</strong> 6 May 2003 on accessibility <strong>of</strong> cultural infrastructure and cultural activities forpeople with disabilities, OJ C 134 <strong>of</strong> 7.6.2003, p. 7.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003113participation at all levels <strong>of</strong> the educational and training system »; to « pursue efforts tomake lifelong learning more accessible to people with disabilities and, within thiscontext, give particular attention to the barrier-free use <strong>of</strong> new information andcommunication technologies and the Internet to improve the quality <strong>of</strong> learning,vocational training and access to employment » 344 ; to « remove barriers impeding theparticipation <strong>of</strong> people with disabilities in social life and, in particular, in working life,and prevent the setting up <strong>of</strong> new barriers through the promotion <strong>of</strong> design for all ». Thepresentation <strong>of</strong> national action plans by the Member States in the context <strong>of</strong> theEuropean Employment Strategy could prove a particularly useful tool for theimprovement <strong>of</strong> the employment level and social inclusion <strong>of</strong> persons with disabilitiesand for the exchange <strong>of</strong> best practices in this regard : the Resolution encouragesMember States to « consider the possibility <strong>of</strong> taking measures at national andEuropean level, consistent with the objectives <strong>of</strong> the European Employment Strategy, topromote the employment <strong>of</strong> people with disabilities », and to « mainstream disabilityissues when drafting future national action plans relating to social exclusion andpoverty ». A systematic assessment <strong>of</strong> the impact <strong>of</strong> policies on the situation <strong>of</strong> personswith disabilities would undoubtedly serve the aims <strong>of</strong> pr<strong>of</strong>essional and socialintegration <strong>of</strong> these persons. Therefore, it is welcome that the Resolution calls forreinforcing « the mainstreaming <strong>of</strong> the disability perspective into all relevant policies atthe stages <strong>of</strong> policy formulation, implementation, monitoring and evaluation », and alsoinsists on the need for statistical information for such monitoring and evaluation as wellas for the need <strong>of</strong> cooperation with bodies and civil society organisations concernedwith people with disabilities.• On 22 July 2003, acting in the framework <strong>of</strong> the European Employment Strategy, theCouncil adopted the latest guidelines for the employment policies <strong>of</strong> the MemberStates 345 . The approach to the pr<strong>of</strong>essional integration <strong>of</strong> persons with disabilities ishardly innovative. The Council recalls that « effective integration into the labour market<strong>of</strong> people at a disadvantage will deliver increased social inclusion, employment rates,and improve the sustainability <strong>of</strong> social protection systems. Policy responses need totackle discrimination, provide a personalised approach to individual needs, and createadequate job opportunities by providing recruitment incentives for employers. (…)Access to the labour market is a major priority with respect to people with disabilitieswho are estimated to represent some 37 million people in the European Union, many <strong>of</strong>whom have the ability and desire to work » (Recital 17). However, the 7 th guideline tothe Member States is formulated in very non-committing terms ; and the formulationchosen moreover clearly lays the accent on the need for adaptation <strong>of</strong> the person with adisability, who should be encouraged to be more « employable », rather than on theneed for undertakings to adapt to a diverse workforce, as the employers simply shouldbe imposed an obligation <strong>of</strong> non-discrimination. Indeed, the guideline says that« Member States will foster the integration <strong>of</strong> people facing particular difficulties on thelabour market, such as (…) people with disabilities, (…) by developing theiremployability, increasing job opportunities and preventing all forms <strong>of</strong> discriminationagainst them. In particular, policies will aim to achieve by 2010: (…) a significantreduction in each Member State in the unemployment gaps for people at a disadvantage,according to any national targets and definitions ».• On 30 October 2003, the European Commission published an importantCommunication which seeks to identify how it will build upon the momentum created344 On this question, reference is made to another resolution adopted by the Council during the period underscrutiny in this Report : Council Resolution <strong>of</strong> 6 February 2003 « e-accessibility - improving the access <strong>of</strong> peoplewith disabilities to the Knowledge Based Society », 14680/02, OJ C 39, 18.2.2003, p. 5.345 Council Decision <strong>of</strong> 22 July 2003 on guidelines for the employment policies <strong>of</strong> the Member States, OJ L 197 <strong>of</strong>5.8.2003, p. 13.CFR-CDF.rep.UE.2003.en

114EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSby the European Year <strong>of</strong> Persons with Disabilities 346 . The Communication is based onthe idea that “shaping society in a fully inclusive way » is an objective <strong>of</strong> the Union,and that « in this respect, the fight against discrimination and the promotion <strong>of</strong> theparticipation <strong>of</strong> people with disabilities into economy and society play a fundamentalrole ». The Communication sees the elimination <strong>of</strong> environmental barriers to the fullparticipation <strong>of</strong> persons with disabilities in the economy and in society as central. Thecommunication identifies three strategic objectives for the future : achieving fullapplication <strong>of</strong> the Equal Treatment in Employment and Occupation by closelymonitoring its implementation by the Member States, and pursuing the antidiscriminationstrategy <strong>of</strong> the European Community ; mainstreaming disability issues inrelevant Community policies and existing processes ; improving accessibility to goods,services and the built environment, by relying on the principle <strong>of</strong> universal design(« design for all »). This strategy will be informed by a biennal report examining theoverall situation <strong>of</strong> people with disabilities.• On 2 December 2003, the conciliation committee joining representatives from theCouncil and from the European Parliament found an agreement on the content <strong>of</strong> twodirectives to be adopted in the field <strong>of</strong> public procurement 347 . According to theagreement, these directives will provide that the contracting authority should, wheneverpossible, lay down technical specifications so as to take into account accessibilitycriteria for people with disabilities or design for all users.These achievements and plans for the future must be examined against the requirements <strong>of</strong>Article 26 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. For the interpretation <strong>of</strong> these requirements,it is important to take into account Article 15 <strong>of</strong> the revised European Social Charter. In 2003,the European Committee on Social Rights delivered its first interpretations <strong>of</strong> Article 15 <strong>of</strong>the Revised European Social Charter (1996), which, says the Committee, “advances thechange in disability policy that has occurred over the last decade away from welfare andsegregation and towards inclusion and choice”. It considers accordingly that Article 15 <strong>of</strong> theRevised ESC embodies a requirement <strong>of</strong> non-discrimination – a view which anyway could beseen as flowing from the combination <strong>of</strong> Article 15 and Article E (Non-discrimination) <strong>of</strong> theCharter. After examining the reports submitted by those States, the European Social RightsCommittee adopted negative conclusions concerning the compliance by Italy and Sloveniawith all three paragraphs <strong>of</strong> Article 15 revESC 348 . What matters in the context <strong>of</strong> this report,however, rather than the individual performances <strong>of</strong> the Member States, is the interpretationmade <strong>of</strong> Article 15 <strong>of</strong> the revised European Social Charter by the European Committee onSocial Rights, ins<strong>of</strong>ar as this interpretation may facilitate evaluating whether the institutions<strong>of</strong> the Union comply with the corresponding provision <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights.The European Committee on Social Rights considers under Article 15 par. 1 <strong>of</strong> the revisedEuropean Social Charter that 349 :346 COM(2003)650 final, 30.10.2003.347 At the time <strong>of</strong> writing, the results <strong>of</strong> the votes which were to take place in the European Parliament and in theCouncil under Article 251(5) EC were still unknown.348 The Committee also examined the law and practice <strong>of</strong> France and Sweden under these provisions. France isrequested to provide the Committee with further information before conclusions can be adopted on compliancewith each paragraph <strong>of</strong> Art. 15 <strong>of</strong> the revised Charter. Further information is also required from Sweden on Article15 para. 1 and 3. No reference is made here to States which are non-EU member States.349 Concl. 2003-1, p. 159 (France – Article 15 para. 1) ; Concl. 2003-1, p. 292 (Italy – Article 15 para. 1) ; Concl.2003-2, p. 498 (Slovenia – Article 15 para. 1) ; Concl. 2003-2, p. 608 (Sweden – Article 15 para. 1). TheCommittee defers its conclusion concerning the compliance <strong>of</strong> France with Article 15 para. 1 <strong>of</strong> the RevisedCharter, as it excepts France to comment on the fact that the number <strong>of</strong> children with disabilities is special schoolsis significantly larger than the number <strong>of</strong> children educated in mainstream educational institutions. The conclusionis also deferred with respect to Sweden. As to Italy and Slovenia, the Committee concludes that these States arenot in conformity with Article 15 para. 1 <strong>of</strong> the Revised Charter as there is no anti-discrimination legislation inrelation to disability in the field <strong>of</strong> education.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003115In so far as Article 15 par. 1 <strong>of</strong> the Revised Charter explicitly mentions ‘education’,(…) the existence <strong>of</strong> non-discrimination legislation [is necessary] as an important toolfor the advancement <strong>of</strong> the inclusion <strong>of</strong> children with disabilities into general ormainstream educational schemes. Such legislation should, as a minimum, require acompelling justification for special or segregated educational systems and confer aneffective remedy on those who are found to have been unlawfully excluded orsegregated or otherwise denied an effective right to education.The European Community has the competence to adopt measures prohibiting discriminationin education, under Article 13 EC. Article 26 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, read inconformity with the requirements <strong>of</strong> Article 15 par. 1 <strong>of</strong> the Revised European Social Charter,may require the Community institutions to exercise this competence, if this adds value to theinitiatives which Member States may take at the national level to comply with thisrequirement 350 . Their failure <strong>of</strong> the Community to do so, in the absence <strong>of</strong> any convincingjustification, would not seem to be in conformity with this objective <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights. The Commission should therefore be encouraged to propose such alegislation, in the form <strong>of</strong> a disability-specific directive 351 . The EU Network <strong>of</strong> IndepenentExperts on Fundamental Rights has invited the Commission to act in this regard, in the Reporton the situation <strong>of</strong> fundamental rights in the EU and its Member States in 2002. It isregrettable that the European Year <strong>of</strong> Persons with Disabilities 2003 has not been used as anopportunity to make progress towards such an instrument. When the Community will proposesuch legislation, it will have to be inquired into the conditions under which such legislationrequires non-discrimination in the field <strong>of</strong> education, including, but by no means limited to,the prohibition <strong>of</strong> segregated education unless justified by compelling reasons 352 . In thatrespect, the decision <strong>of</strong> the European Committee <strong>of</strong> Social Rights in the collective complaintlodged by Austime-Europe should also bring a useful clarification <strong>of</strong> the relationship betweenthe right to education (Article 17.1.ESC) and the protection from discrimination (Article E) 353 .The Community has sought to improve the pr<strong>of</strong>essional integration <strong>of</strong> persons withdisabilities, especially by the adoption <strong>of</strong> Directive 2000/78/EC establishing a generalframework for equal treatment in employment and occupation 354 . By adopting this Directiveand ensuring that its implementation by the Member States is effectively monitored, theEuropean Community has complied with its obligations under Article 26 <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights, ins<strong>of</strong>ar as this provision should be read as referring to Article 15 par. 2<strong>of</strong> the Revised European Social Charter.350 The principles <strong>of</strong> subsidiarity and proportionality do not constitute an obstacle to the adoption <strong>of</strong> suchlegislation, as demonstrated by the adoption, on 29 June 2000, <strong>of</strong> Directive 2000/43/EC implementing the principle<strong>of</strong> equal treatment between persons irrespective <strong>of</strong> racial or ethnic origin, OJ L 180 <strong>of</strong> 19.7.2000, p. 22. See alsothe reasoning <strong>of</strong> the Commission, as presented in the Proposal for a Council Directive implementing the principle<strong>of</strong> equal treatment between women and men in access to goods and services and provision <strong>of</strong> goods and services,COM(2003) 657 final, <strong>of</strong> 5.11.2003, pp. 10.12.351 The European Disability Forum has been campaigning for such a directive since early 2003. This question hasalso been insisted upon by the representative <strong>of</strong> EDF at the hearing organised on 16 October 2003 by the EUNetwork <strong>of</strong> Independent Experts on Fundamental Right at the European Parliament.352 Indeed, including children with disabilities in mainstream education, however, is not enough, as an equal rightto education requires more than imposing similar standards to all, even those with different needs. The Committeerequires that the normal curriculum is adjusted to take account <strong>of</strong> disability; that individualized educational plansare crafted for students with disabilities; that resources follow the child, by provision <strong>of</strong> support staff and othertechnical assistance; that testing or examining modalities are adjusted to take into account the disability, and ittaken under non-standard conditions, that this is not revealed to third parties; that the qualifications recognized arethe same for all children and rated the same after the child leaves the educational system. Moreover, where specialeducation is provided where this cannot be avoided, the Committee seeks to ensure that it leads to qualificationswhich are recognized and may give access to vocational training or employment on the open labour market.353 Collective complaint n° 13/2002 (the conclusions are expected to be available in the Spring <strong>of</strong> 2004).354 OJ L 303 <strong>of</strong> 2.12.2000, p. 16.CFR-CDF.rep.UE.2003.en

116EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSArticle 15 par. 3 <strong>of</strong> the Revised European Social Charter concerns the integration andparticipation <strong>of</strong> persons with disabilities in the life <strong>of</strong> the community. According to theEuropean Committee on Social Rights, this provision requires the adoption <strong>of</strong> positivemeasures to achieve integration in housing, transport, telecommunications, cultural andleisure facilities. As Article 15 par. 3 <strong>of</strong> the Revised Charter refers to participation <strong>of</strong> personswith disabilities, the European Committee on Social Rights also requires that “persons withdisabilities and their representative organisations should be consulted in the design, andongoing review <strong>of</strong> such positive action measures and that an appropriate forum should exist toenable this to happen” 355 . Moreover, Article 15 par. 3 <strong>of</strong> the Revised European Social Charter“requires the existence <strong>of</strong> anti-discrimination (or similar) legislation covering both the publicand the private sphere in the fields such as housing, transport, telecommunications, culturaland leisure activities, as well as effective remedies for those who have been unlawfullytreated” 356 . For reasons identical, mutatis mutandis, to those put forward with respect to theright <strong>of</strong> children with disabilities to be protected from discrimination in education, acontinued failure <strong>of</strong> the European Community to adopt an anti-discrimination legislation inthe fields named above 357 , could constitute a violation <strong>of</strong> Article 26 <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights. Clearly, the answer will be affirmative where, in the absence <strong>of</strong> aCommunity initiative to ensure that the principle <strong>of</strong> equal treatment is complied with in thosefields, the Member States will be hesitant to move forward, for instance out <strong>of</strong> fear <strong>of</strong> theshort-term budgetary consequences or <strong>of</strong> imposing on enterprises operating on their territorycosts their competitors in other Member States do not have to meet. The announcement at thehighest level that the Commission will propose an initiative to remedy this is therefore, again,to be welcomed.In sum, the important initiatives which have been taken by the institutions <strong>of</strong> the Union toimprove the social and pr<strong>of</strong>essional integration <strong>of</strong> persons with disabilities, while they cannotbe underestimated, should not obfuscate the fact that, if the shift from the medical model tothe social, or “rights-based”, model is to be taken seriously, more needs to be done. Forinstance, reliance on the social responsibility <strong>of</strong> corporate actors, and correlative insistence onthe business case for integrating persons with disabilities and on the voluntary initiativesenterprises could take accordingly, should not be seen as a substitute for imposing legalobligations on those actors not to discriminate on the ground <strong>of</strong> disability, and not to denyeffective accommodation where this does not impose a disproportionate burden ; calling uponthe Member States, in the Employment Guidelines, to subsidize the provision <strong>of</strong> suchaccommodation, should not distract from the fact that such subsidisation also can be describedas deriving from the general obligation to loyally co-operate in the fulfilment <strong>of</strong> the objectivessought by EC law (Article 10 EC) : indeed, although Directive 2000/78/EC does not as suchimpose on Member States to provide such support – instead, the States are free to choosewhether or not to act in this respect –, it shall be noted that a complete refusal to provide for asignificant support to employers adjusting the working environment to suit the needs <strong>of</strong>persons with disabilities runs counter to the objective pursued by the directive.355 Concl. 2003-1, p. 168 (France – Article 15 para. 3) ; Concl. 2003-1, p. 507 (Slovenia – Article 15 para. 3).356 Concl. 2003-1, p. 170 (France – Article 15 para. 3) ; Concl. 2003-1, p. 298 (Italy – Article 15 para. 3) ; Concl.2003-2, p. 508 (Slovenia – Article 15 para. 3) ; Concl. 2003-2, p. 614 (Sweden – Article 15 para. 3).. TheCommittee defers its conclusion concerning the compliance <strong>of</strong> France with Article 15 para. 3 <strong>of</strong> the RevisedEuropean Social Charter, pending receipt <strong>of</strong> the information requested on the existence <strong>of</strong> legislation protectingpersons with disabilities from discrimination in the domains cited (housing, telecommunications, transport, culturaland leisure activities). The conclusions <strong>of</strong> the Committee concerning compliance <strong>of</strong> Sweden with this provision <strong>of</strong>the Revised Charter are also deferred pending the receipt <strong>of</strong> further information. The Committee concludes that, asno such legislation exists in Italy or in Slovenia, the situation in these countries is not in conformity with Article 15para. 3 <strong>of</strong> the Revised Charter.357 See, however, the Commission « White Paper on European Transport Policy for 2010: a time to decide »,COM(2001) 370 final. In its communication <strong>of</strong> 30 October 2003, the Commission says that it will « promoteincreased use <strong>of</strong> accessible public transport, which is an important contribution to the ability to work ».CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003117CHAPTER IV : SOLIDARITYArticle 27. Worker’s right to information and consultation within the undertakingThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.Article 28. Right <strong>of</strong> collective bargaining and actionThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.Article 29. Right <strong>of</strong> access to placement servicesThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.Article 30. Protection in the event <strong>of</strong> unjustified dismissalThe safeguarding <strong>of</strong> employees’ rights in the event <strong>of</strong> transfers <strong>of</strong> undertakingsIn a judgment <strong>of</strong> 30 November 2003, the European Court <strong>of</strong> Justice considered that it was inthe presence <strong>of</strong> a « transfer <strong>of</strong> undertakings » in the meaning <strong>of</strong> Article 1 <strong>of</strong> Council Directive77/187/EEC <strong>of</strong> 14 February 1977 on the approximation <strong>of</strong> the laws <strong>of</strong> the Member Statesrelating to the safeguarding <strong>of</strong> employees' rights in the event <strong>of</strong> transfers <strong>of</strong> undertakings,businesses or parts <strong>of</strong> businesses 358 , in a situation where a catering company (Sodexho) hadtook over the management <strong>of</strong> catering services within a hospital, after the contract with theprevious catering company, providing patients and staff with meals and drinks, had beenterminated. Sodexho had refused to take over its predecessor’s employees. In its judgment,the Court recalls that for Directive 77/187 to be applicable, the transfer must relate to a stableeconomic entity whose activity is not limited to performing one specific works contract 359 . Itconsiders however that in the circumstances <strong>of</strong> the case, the catering service cannot beregarded as an activity based essentially on manpower, since « it requires a significant amount<strong>of</strong> equipment ». According to the Court, « the tangible assets needed for the activity inquestion - namely, the premises, water and energy and small and large equipment (inter aliathe appliances needed for preparing the meals and the dishwashers) - were taken over bySodexho. Moreover, a defining feature <strong>of</strong> the situation at issue in the main proceedings is theexpress and fundamental obligation to prepare the meals in the hospital kitchen and thus totake over those tangible assets. The transfer <strong>of</strong> the premises and the equipment provided bythe hospital, which is indispensable for the preparation and distribution <strong>of</strong> meals to thehospital patients and staff is sufficient, in the circumstances, to make this a transfer <strong>of</strong> aneconomic entity. It is moreover clear that, given their captive status, the new contractornecessarily took on most <strong>of</strong> the customers <strong>of</strong> its predecessor » (Recital 36). There is thereforecontinuity <strong>of</strong> an economic entity, and the absence <strong>of</strong> any direct contractual relationshipbetween the transferor and the transferee is not an obstacle to the applicability <strong>of</strong> Directive77/187 : the « transfer », says the Court, « may take place through the intermediary <strong>of</strong> a thirdparty such as the owner or the person putting up the capital » (Recital 39). This conclusion <strong>of</strong>the Court is notable, as it runs counter to the opinion delivered on 19 June 2003 by Advocate358 OJ 1977 L 61, p. 26.359 ECJ, 19 September 1995, Rygaard, C-48/94, ECR I-2745, Recital 20.CFR-CDF.rep.UE.2003.en

118EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSGeneral Geelgoed, according to whom « it is not enough, for there to be a transfer <strong>of</strong>undertaking, that a contract with a particular person be terminated and followed by theconclusion <strong>of</strong> a contract with another person, as in this case. The sheer fact that an activity ispursued, when it was previously performed by another undertaking, without a cession <strong>of</strong>assets or rights cannot be compared with the transfer <strong>of</strong> an undertaking. The loss <strong>of</strong> a marketcannot as such constitute an indicia <strong>of</strong> the existence <strong>of</strong> a transfert in meaning <strong>of</strong> Directive77/187 » (par. 93 <strong>of</strong> the Opinion (our translation)).To ensure legal security and transparency, the Council adopted subsequently to the factsDirective 2001/23/EC <strong>of</strong> 12 March 2001 on the approximation <strong>of</strong> the laws <strong>of</strong> the MemberStates relating to the safeguarding <strong>of</strong> employees' rights in the event <strong>of</strong> transfers <strong>of</strong>undertakings, businesses or parts <strong>of</strong> undertakings or businesses 360 . This Directive – whichcites in its Preamble the Community Charter <strong>of</strong> the Fundamental Social Rights <strong>of</strong> Workersadopted on 9 December 1989, but omits mention <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights – isintended to clarify the notion <strong>of</strong> “transfer <strong>of</strong> undertaking”; it is not meant to change the scope<strong>of</strong> Directive 77/187/EEC as interpreted by the Court <strong>of</strong> Justice. It states that there is a transferwithin the meaning <strong>of</strong> the Directive where there is “a transfer <strong>of</strong> an economic entity whichretains its identity, meaning an organised grouping <strong>of</strong> resources which has the objective <strong>of</strong>pursuing an economic activity, whether or not that activity is central or ancillary” (Article1(1)(b)).A judgment <strong>of</strong> 6 November 2003 also adopts a broad reading <strong>of</strong> the guarantees <strong>of</strong> theemployees under Directive 77/187/EEC. Article 3(3) <strong>of</strong> this Directive provides that theprinciples according to which the rights and obligations arising from a contract <strong>of</strong>employment or from an employment relationship existing on the date <strong>of</strong> a transfer aretransferred from the transferor to the transferee, and according to which the transferee shallcontinue to observe the terms and conditions agreed in any collective agreement on the sameterms applicable to the transferor under that agreement, until the date <strong>of</strong> termination or expiry<strong>of</strong> the collective agreement or the entry into force or application <strong>of</strong> another collectiveagreement, do not cover « employees' rights to old-age, invalidity or survivors' benefits undersupplementary company or inter-company pension schemes outside the statutory socialsecurity schemes in Member States ». The Court had previously considered that, as this wasan exception to the rule, it should be interpreted restrictively 361 . This also guides the answer <strong>of</strong>the Court to the first question <strong>of</strong> interpretation referred to it in the Martin case, where itconsiders that « except in the cases mentioned in [Article 3(3)], all the transferor's rights andobligations arising from the contract <strong>of</strong> employment or employment relationship with anemployee fall within the scope <strong>of</strong> Article 3(1) and are therefore transferred to the transferee,regardless <strong>of</strong> whether or not their implementation is contingent upon the happening <strong>of</strong> aparticular event, which may depend on the will <strong>of</strong> the employer. Thus, if, following thetransfer, the transferee, like the transferor before him, has the power whether or not to adoptcertain decisions in respect <strong>of</strong> the employee, for example concerning dismissal or the grant <strong>of</strong>early retirement, once he adopts such a decision, he remains bound, like the transferor beforehim, by the rights and obligations laid down as the consequence <strong>of</strong> such a decision by thecontract <strong>of</strong> employment or employment relationship with the transferor as long as the relevantterms there<strong>of</strong> have not been lawfully varied » (Recital 29 – our emphasis).The Court <strong>of</strong> Justice has seemed to indicate in a judgment <strong>of</strong> 17 September 2002 362 thatDirective 77/187/EEC – today, Directive 2001/23/EC <strong>of</strong> 12 March 2001 – should guarantee aprotection to the workers, male or female, who are less well remunerated than colleaguesfrom the other sex for a work <strong>of</strong> the same value, even in situations where, after a transfer <strong>of</strong> abranch <strong>of</strong> activity to another undertaking, the discrimination complained <strong>of</strong> cannot be360 OJ L 82, <strong>of</strong> 22.3.2001, p. 16.361 ECJ, 4 June 2002, Beckmann, C-164/00, ECR I-4893 (Recital 29).362 ECJ, 17 September 2002, Lawrence and others., C-320/00, ECR I-7325.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003119attributed to a unique source : the appellants – female workers – had been employed in theprovision <strong>of</strong> cleaning and catering services in schools under the North Yorkshire CountyCouncil's control when the Council itself assumed responsibility for the cleaning and cateringservices in schools and educational establishments under its control. Responsibility forproviding those services was subsequently transferred to the private undertakings. In 1995however, the House <strong>of</strong> Lords had ruled that the applicants were entitled, for the purposes <strong>of</strong>securing equal pay without discrimination based on sex, to compare themselves with menwho were employed by the Council in other service areas such as gardening, refuse collectionand sewage treatment and who performed work <strong>of</strong> equal value. The activities <strong>of</strong> theseemployees had not been transferred, but had remained, instead, within the Council. The Court<strong>of</strong> Justice concluded that Article 141(1) EC therefore was not applicable : « the differencesidentified in the pay conditions <strong>of</strong> workers performing equal work or work <strong>of</strong> equal valuecannot be attributed to a single source, there is no body which is responsible for the inequalityand which could restore equal treatment » (Recital 18). However, the Court noted in itsreasoning that the national jurisdiction having referred the question <strong>of</strong> interpretation « has notreferred any question on the protection resulting, in the case before it, from Council Directive77/187/EEC <strong>of</strong> 14 February 1977 on the approximation <strong>of</strong> the laws <strong>of</strong> the Member Statesrelating to the safeguarding <strong>of</strong> employees' rights in the event <strong>of</strong> transfers <strong>of</strong> undertakings,businesses or parts <strong>of</strong> businesses (OJ 1977 L 61, p. 26). Its questions relate only to Article141(1) EC » (Recital 16).The protection <strong>of</strong> workers in the event <strong>of</strong> their employer's insolvencyArticle 30 <strong>of</strong> the Charter also should be read to include the protection <strong>of</strong> workers in the event<strong>of</strong> their employer's insolvency. In the case <strong>of</strong> Mau 363 , the Court was asked to <strong>of</strong>fer aninterpretation <strong>of</strong> Articles 3 and 4 <strong>of</strong> Council Directive 80/987/EEC <strong>of</strong> 20 October 1980 on theapproximation <strong>of</strong> the laws <strong>of</strong> the Member States relating to the protection <strong>of</strong> employees in theevent <strong>of</strong> the insolvency <strong>of</strong> their employer 364 and <strong>of</strong> Article 141 EC. The applicant, Ms KarinMau, was on child raising leave at the time <strong>of</strong> the onset <strong>of</strong> the employer's insolvency and thiswas the date chosen by Germany to calculate the guarantees due by guarantee institutions forpayment <strong>of</strong> employees' outstanding claims resulting from contracts <strong>of</strong> employment oremployment relationships and relating to pay for the period prior to that date (Art. 3(1) <strong>of</strong>Directive 80/987/EEC). Under Article 4(2) <strong>of</strong> the Directive, the Member States must “ensurethe payment <strong>of</strong> outstanding claims relating to pay for the last three months <strong>of</strong> the contract <strong>of</strong>employment or employment relationship occurring within a period <strong>of</strong> six months precedingthe date <strong>of</strong> the onset <strong>of</strong> the employer's insolvency”, when this is the choice <strong>of</strong> the relevant datemade by the State concerned. Under German law, the employment <strong>of</strong> Ms Mau wasmaintained during the child raising leave, however the main obligations flowing from thatemployment (obligation to work and to pay remuneration) were suspended. Therefore if theexpression “the last three months <strong>of</strong> the period <strong>of</strong> employment” were to be interpreted tocover the period <strong>of</strong> child rearing leave, no remuneration would be guaranteed to Ms Mau. TheCourt considered however that, if the expression “the last three months <strong>of</strong> the contract <strong>of</strong>employment or employment relationship » were to be interpreted as including a period duringwhich no remuneration is to be paid, the social purpose <strong>of</strong> the Directive would be defeated(« interpretation <strong>of</strong> the concept <strong>of</strong> an employment relationship must in particular take account<strong>of</strong> the social purpose <strong>of</strong> Directive 80/987, which is to ensure a minimum level <strong>of</strong> protectionfor all workers (…). The concept cannot therefore be interpreted in such a way as to allow theminimum guarantees laid down in Article 4(2) <strong>of</strong> that directive to be reduced to nothing »(Recital 42)). The Court concludes therefore : « Periods during which the employmentrelationship is suspended on account <strong>of</strong> child raising are therefore excluded by reason <strong>of</strong> thefact that no remuneration is due during those periods » (Recital 44).363 ECJ, 15 May 2003, Mau, C-160/01, nyr.364 OJ 1980 L 283, p. 23.CFR-CDF.rep.UE.2003.en

120EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSIn a judgment <strong>of</strong>fering an interpretation <strong>of</strong> the same Directive 80/987/EEC <strong>of</strong> 20 October1980, the Court considered, in a judgment <strong>of</strong> 11 September 2003 365 , that the protectionprovided by this Directive precludes a rule as then existed in Austrian law that an employeewith a significant shareholding in the private limited company that employs him, but whodoes not exercise a dominant influence over that company, loses his entitlement to theguarantee in respect <strong>of</strong> claims for outstanding pay which result from the employer'sinsolvency and are covered by Article 4(2) <strong>of</strong> that directive if, in the 60 days from the time hefirst could have become aware that the company was no longer creditworthy, he fails to makeany genuine demand for payment <strong>of</strong> salary owed to him. Article 10 <strong>of</strong> Directive 80/987 states,however, that the directive does not affect the option <strong>of</strong> Member States to take “the measuresnecessary to avoid abuses”, and the Austrian government presented the challenged rule as ameans to avoid abuse by employees who are also shareholders, with the risk <strong>of</strong> collusion <strong>of</strong>interests this situation implies. The Court considers that to avoid abuses a Member State is, inprinciple, entitled to take measures that deny such an employee an entitlement to a guaranteein respect <strong>of</strong> claims for outstanding salary arising after the date on which an employee who isnot a shareholder would have resigned on the ground <strong>of</strong> non-payment <strong>of</strong> his salary, howeverthere can be no unrebuttable presumption <strong>of</strong> abusive conduct.The protection <strong>of</strong> the workers in the case <strong>of</strong> collective redundanciesArticle 30 <strong>of</strong> the Charter should also be considered as including the protection <strong>of</strong> the workersin the case <strong>of</strong> collective redundancies. In a judgment <strong>of</strong> 16 October 2003 (C-32/02), the Courtfound that by not adopting the necessary provisions in respect <strong>of</strong> employers engaged in nonpr<strong>of</strong>it-makingactivities, the Italian Republic has failed to fulfil its obligations under CouncilDirective 98/59/EC <strong>of</strong> 20 July 1998 on the approximation <strong>of</strong> the laws <strong>of</strong> the Member Statesrelating to collective redundancies 366 .Article 31. Fair and just working conditionsArticle 31 § 2 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights guarantees the right <strong>of</strong> every worker to“limitation <strong>of</strong> maximum working hours, to daily and weekly rest periods and to an annualperiod <strong>of</strong> paid leave”. This provision is based in particular on Article 2 § 1 <strong>of</strong> the EuropeanSocial Charter (not amended by the Revised European Social Charter), which obliges theContracting Parties “to provide for reasonable daily and weekly working hours, the workingweek to be progressively reduced to the extent that the increase <strong>of</strong> productivity and otherrelevant factors permit”. This paragraph <strong>of</strong> the European Social Charter has been endorsed byall Member States <strong>of</strong> the European Union, except, Austria, Denmark, Latvia and the UnitedKingdom (among the States parties to the European Social Charter), as well as Sweden(which is party to the Revised European Social Charter).It should be considered, however, given that the right to limitation <strong>of</strong> maximum workinghours is guaranteed by the Charter <strong>of</strong> Fundamental Rights, that the Member States are obligedto respect this right as supervised by the European Committee <strong>of</strong> Social Rights from themoment they act within the scope <strong>of</strong> Community law or the European Union. Article 31 § 2 <strong>of</strong>the Charter <strong>of</strong> Fundamental Rights sets forth a right whose status among the fundamentalsocial rights recognized in international labour law is well asserted. This provision is merelythe “most reliable and definitive confirmation as a fundamental right” <strong>of</strong> the right to limitation<strong>of</strong> maximum working hours, to daily and weekly rest periods and to an annual period <strong>of</strong> paidleave 367 .365 ECJ, 11 September 2003, Walcher, C-201/01, nyr.366 OJ 1998 L 225, p. 16.367 See the opinions <strong>of</strong> Mr Advocate General A. Tizzano delivered on 8 February 2001, preceding ECJ, 26 June2001, BECTU, C-173/99, especially Recital 28 <strong>of</strong> the opinions (concerning the right to annual paid leave which, inCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003121Directive 2003/88/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 4 November 2003concerning certain aspects <strong>of</strong> the organisation <strong>of</strong> working time 368 codifies the changes broughtto Council Directive 93/104/EC <strong>of</strong> 23 November 1993, concerning certain aspects <strong>of</strong> theorganisation <strong>of</strong> working time 369 , since ten years. It lays down minimal requirements for theprotection <strong>of</strong> the health and safety <strong>of</strong> the worker in the organisation <strong>of</strong> work (see article 15 <strong>of</strong>the directive). The Preamble <strong>of</strong> Directive 2003/88/EC states that « In view <strong>of</strong> the questionlikely to be raised by the organisation <strong>of</strong> working time within an undertaking, it appearsdesirable to provide for flexibility in the application <strong>of</strong> certain provisions <strong>of</strong> this Directive,whilst ensuring compliance with the principles <strong>of</strong> protecting the safety and health <strong>of</strong>workers » (Recital 15). However, one cannot but be struck by the number <strong>of</strong> derogationswhich are permitted under this instrument (see chapter 5), either in a number <strong>of</strong> contexts « bymeans <strong>of</strong> laws, regulations or administrative provisions or by means <strong>of</strong> collective agreementsor agreements between the two sides <strong>of</strong> industry provided that the workers concerned areafforded equivalent periods <strong>of</strong> compensatory rest or that, in exceptional cases in which it isnot possible, for objective reasons, to grant such equivalent periods <strong>of</strong> compensatory rest, theworkers concerned are afforded appropriate protection » (article 17(2)), or even in certaincircumstances by prior individual agreement <strong>of</strong> the worker (article 22). The reportingprocedures provided for by Article 24(2) <strong>of</strong> the Directive (the reports by the member Stateson the practical implementation <strong>of</strong> the Directive will indicate the viewpoints <strong>of</strong> the two sides<strong>of</strong> industry) should be an opportunity to assess whether the derogations authorised under theDirective have not, in fact, distracted from the goal <strong>of</strong> minimal harmonisation, under Article137(2) EC, to avoid a regulatory competition detrimental to the fundamental social rights <strong>of</strong>the workers.Considering the number <strong>of</strong> derogations which the directive authorizes, it should be underlinedthat in implementing the directive, the Member States are bound to respect Article 31(2) <strong>of</strong>the Charter <strong>of</strong> Fundamental Rights, and therefore also Articles 2(1)and(3) <strong>of</strong> the EuropeanSocial Charter on which this provision <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights in based. Tothat extent, any violation <strong>of</strong> the European Social Charter should be considered a violation <strong>of</strong>European Community law itself, where it is committed by a State implementing EC Law. TheCommission would have all the more reason for assuming the role <strong>of</strong> guardian <strong>of</strong> the Treatiesthat is assigned to it by Article 211 EC since, by its very nature, such a violation infringes th<strong>eu</strong>nity <strong>of</strong> the internal market, within which competition must not be distorted 370 . “The objective<strong>of</strong> ensuring a comparable minimal level <strong>of</strong> protection as between the various Member Statesalso meets the requirement, dictated by the need to prevent distortion <strong>of</strong> competition, <strong>of</strong>avoiding any type <strong>of</strong> social dumping, that is to say, in the last analysis, ensuring that theeconomy <strong>of</strong> one Member State cannot derive any advantage from adopting legislation whichprovides less protection than that <strong>of</strong> the other Member States” 371 .There will be no question here <strong>of</strong> evaluating the compliance <strong>of</strong> Directive 2003/88/EC with theabove-mentioned provisions <strong>of</strong> European Social Charter. This is a task for the EuropeanDirective 93/104/EC at issue in this case, is given a more absolute and unconditional protection than the otherrights set forth in Article 31 § 2 <strong>of</strong> the Charter).368 OJ L 299 <strong>of</strong> 18/11/2003, p. 9.369 OJ L 307, 13/12/1993, p. 18. Directive 93/104/EC has been amended by Directive 2000/34/EC <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council (OJ n° L 195, 1.8.2000, p. 41). On 9 September 2003, the Court delivered itsjudgment in the case <strong>of</strong> Jaeger (C-151/02), which concerned the question <strong>of</strong> the definition <strong>of</strong> the notions <strong>of</strong>« working time » and « rest period » under Directive 93/104/EC, when applied to the on-call service(Bereitschaftsdienst) provided by doctors in hospitals in Germany. The Court concluded that on-call dutyperformed by a doctor where he is required to be physically present in the hospital must be regarded as constitutingin its totality working time for the purposes <strong>of</strong> Directive 93/104/EC even where the person concerned is permittedto rest at his place <strong>of</strong> work during the periods when his services are not required.370 See Commission Communication on better monitoring <strong>of</strong> the application <strong>of</strong> Community law, COM(2002)725final, <strong>of</strong> 20/12/2002.371 Opinions <strong>of</strong> Mr Advocate General A. Tizzano <strong>of</strong> 8 February 2001, preceding ECJ, 26 June 2001, BECTU, C-173/99, here recital 45 <strong>of</strong> the opinions.CFR-CDF.rep.UE.2003.en

122EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSCommittee <strong>of</strong> Social Rights to perform during its examination <strong>of</strong> the periodical reports in thesystem <strong>of</strong> the European Social Charter. It should be noted, however, that this is a furtherexample <strong>of</strong> taking into account international human rights law in the development <strong>of</strong>Community law, and that once again the question arises <strong>of</strong> knowing what measures theEuropean legislator may be obliged to take in order to minimize the risk <strong>of</strong> infringement <strong>of</strong>fundamental rights committed by Member States when they implement Community law.Article 32. Prohibition <strong>of</strong> child labour and protection <strong>of</strong> young people at workThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.Article 33. Family and pr<strong>of</strong>essional lifeThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.Article 34. Social security and social assistanceCo-ordination <strong>of</strong> social security schemes for third country nationalsBefore the Amsterdam Treaty entered into force in 1998, the Commission presented itsproposal for a Council Regulation (EC) amending Regulation (EEC) No 1408/71 on theapplication <strong>of</strong> social security schemes to employed persons and their families moving withinthe Community to extend it to third-country nationals 372 . This Regulation was adopted on 14May 2003 373 . Its Preamble says that the Regulation « respects the fundamental rights andobserves the principles recognised in particular by the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> theEuropean Union, in particular the spirit <strong>of</strong> its Article 34(2) » (Recital 5), a formulation whichavoids the language <strong>of</strong> fundamental rights but nevertheless identifies the initiative <strong>of</strong> theEuropean legislator as fulfilling the cited provision <strong>of</strong> the Charter. The Regulation shouldfacilitate the exercise <strong>of</strong> the the right <strong>of</strong> third country nationals to move within the Union, asenvisaged under Article 45(2) <strong>of</strong> the Charter, and also implements Article 15(3) <strong>of</strong> theCharter, although it does not grant a right to enter, to stay or to reside in a Member State or tohave access to its labour market.Reform <strong>of</strong> social security legislationThe 21 December 2003, a political agreement was concluded within the Employment andSocial Affairs Council on the reform <strong>of</strong> the social security legislation. The present Report,completed in December 2003, could not include this latest development.372 OJ C 6, 10.1.1998 p. 15.373 Council Regulation (EC) No 859/2003 <strong>of</strong> 14 May 2003 extending the provisions <strong>of</strong> Regulation (EEC) No1408/71 and Regulation (EEC) No 574/72 to nationals <strong>of</strong> third countries who are not already covered by thoseprovisions solely on the ground <strong>of</strong> their nationality, OJ L 124 , 20.5.2003, p. 1.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003123Article 35. Health care 374The “principle” <strong>of</strong> health careArticle 35 <strong>of</strong> the Charter on health care should undoubtedly be classed among the provisionsthat establish “principles” rather than “subjective rights” – within the meaning <strong>of</strong> thisdistinction which the reviews <strong>of</strong> Article 52 <strong>of</strong> the Charter carried out by Working Party II <strong>of</strong>the European Convention were meant to establish 375 . This distinction, however, does not meanthat such a “principle” is not justifiable. At the most, it is the mode <strong>of</strong> justifiability thatdiffers, rather than the actual possibility <strong>of</strong> invoking the provision before a judicial authority.It should be considered that Article 35 <strong>of</strong> the Charter prevents the adoption <strong>of</strong> any measuretaken by the Union institutions or by the Member States acting within the scope <strong>of</strong> Union lawthat clearly goes against the objective established by this provision. Despite the ambiguity <strong>of</strong>the formula adopted by the drafters <strong>of</strong> Article 52 § 5 <strong>of</strong> the Charter in the version proposed inthe draft European Constitution, the “principles” set forth by the Charter, for example inArticles 26, 35, 37 or 38, cannot be relied upon solely for the purpose <strong>of</strong> interpreting andreviewing the legality <strong>of</strong> acts that are intended to implement those principles; on the contrary,the recognition <strong>of</strong> those principles by the founding authority is helpful where, instead <strong>of</strong>implementing them, the European legislator or executive commit a sufficiently obviousinfringement <strong>of</strong> those principles to justify an annulment by the court.This is not contradicted by the references to Community case law which are cited in theexplanations <strong>of</strong> the Presidium to support the textual amendments made to Article 52. Inparticular, those explanations cite the Pfizer Animal Health SA judgment given on 11September 2002 by the Court <strong>of</strong> First Instance. In this judgment, the precautionary principle(Article 174 § 2 EC) served to justify the adoption by the Council <strong>of</strong> a Regulationwithdrawing Community authorization for four antibiotics as additives in animal feed. TheCourt found, “The Community institutions may (…) adopt a measure based on theprecautionary principle”. Since, according to the Court, this principle was correctlyinterpreted by the Council, and the precautionary principle may serve in interpreting theDirective laying down the Community rules applying to the authorization, and withdrawal <strong>of</strong>authorization, <strong>of</strong> additives for incorporation in feeding-stuffs 376 , the application wasdismissed 377 . In this case, the precautionary principle did indeed serve in evaluating, in thecontext <strong>of</strong> a legality review, any Community act that aimed to implement it. This, however,does not rule out that the said principle may also serve to censure any Community act thatcommits a sufficiently manifest infringement there<strong>of</strong>.It may be significant in this respect that, in a judgment <strong>of</strong> 21 October 2003 378 , the Court <strong>of</strong>First Instance <strong>of</strong> the European Communities specified, “the precautionary principleconstitutes a general principle <strong>of</strong> Community law imposing on the concerned authorities totake, in the precise framework <strong>of</strong> the exercise <strong>of</strong> the powers which the relevant regulationattributes to them, the appropriate measures to prevent certain potential risks for public health,security and environment, by imposing the requirements linked to the protection <strong>of</strong> theseinterests above economic interests » (Recital 121 (un<strong>of</strong>fical translation)). This formulationconfirms that the precautionary principle may be relied upon not only to justify the fact thatsuch a measure could have been adopted by the Union institutions or by the Member States,although, for example, it affects the interests <strong>of</strong> an economic operator – as in the Pfizer case –,but also to criticize the EU institutions or the Member States for a lack <strong>of</strong> precaution, forexample for having authorized the marketing <strong>of</strong> medicines or foods containing health risks,even in the absence <strong>of</strong> scientific certainty in this respect. The identification <strong>of</strong> positive374 On the issue <strong>of</strong> access to health care for the Roma people, see Article 21 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights.375 More particularly by the addition <strong>of</strong> a fifth paragraph to Article 52 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights.376 Directive 70/524/EEC <strong>of</strong> 23 November 1970 concerning additives in feeding-stuffs (OJ L 270, p. 1).377 CFI, 11 September 2002, Pfizer Animal Health SA v. EU Council, T-13/99, CFI p. II-3305, recitals 114 et seq.378 CFI, 21 October 2003, Solvay Pharmac<strong>eu</strong>ticals BV, T-392/02, not yet published.CFR-CDF.rep.UE.2003.en

124EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSobligations on the basis <strong>of</strong> Article 35 <strong>of</strong> the Charter would be made easier by an interpretation<strong>of</strong> this provision in accordance with the requirements inferred from Article 11 <strong>of</strong> theEuropean Social Charter by the European Committee <strong>of</strong> Social Rights, for example regardingan obligation to protect the public against the health risks connected with the environment orcertain materials, or to take measures to guarantee food safety 379 .Article 35 <strong>of</strong> the Charter, which asserts health care, also prohibits the Union institutions andthe Member States, acting within the scope <strong>of</strong> Union law, from infringing this principle, aswould be the case if they take measures that diminish the standard <strong>of</strong> health care, withoutobjective and reasonable - that is to say, proportionate - justification. Offering aninterpretation <strong>of</strong> Article 12 <strong>of</strong> the International Covenant on Economic, Social and CulturalRights, the Committee on Economic, Social and Cultural Rights considers, “As with all otherrights in the Covenant, there is a strong presumption that retrogressive measures taken inrelation to the right to health are not permissible. If any deliberately retrogressive measuresare taken, the State party has the burden <strong>of</strong> proving that they have been introduced after themost careful consideration <strong>of</strong> all alternatives and that they are duly justified by reference tothe totality <strong>of</strong> the rights provided for in the Covenant in the context <strong>of</strong> the full use <strong>of</strong> the Stateparty's maximum available resources” 380 . This is in line with the customary case law <strong>of</strong> theCommittee, as well as, generally, with the obligation <strong>of</strong> non-retrogression with regard to thedimensions <strong>of</strong> fundamental rights that are realized progressively.Health care and fundamental freedoms <strong>of</strong> the EC TreatyA judgment given on 13 May 2003 by the Court <strong>of</strong> Justice <strong>of</strong> the European Communities 381aptly illustrates the importance which the Community court attaches to the right to health carewhere the concern <strong>of</strong> guaranteeing this right is invoked by a Member State in order to justifya restriction on the free movement <strong>of</strong> goods 382 or the free provision <strong>of</strong> services 383 . In thisjudgment, which concerns the sickness insurance system in the Netherlands - which is basedon the principle <strong>of</strong> a provision <strong>of</strong> sickness benefits in kind rather than reimbursement <strong>of</strong>medical care costs, and on a system <strong>of</strong> contracted care provision between the sicknessinsurance funds and the providers <strong>of</strong> health care services -, the Court confirmed its case lawaccording to which “the objective <strong>of</strong> maintaining a high-quality, balanced medical andhospital service open to all, may fall within one <strong>of</strong> the derogations provided for in Article 56<strong>of</strong> the EC Treaty (now, after amendment, Article 46 EC), in so far as it contributes to theattainment <strong>of</strong> a high level <strong>of</strong> health protection (…). In particular, that Treaty provision permitsMember States to restrict the freedom to provide medical and hospital services in so far as themaintenance <strong>of</strong> treatment capacity or medical competence on national territory is essential forpublic health, and even the survival <strong>of</strong> the population” (recital 67). However, such arestriction on the free provision <strong>of</strong> services can only be admitted ins<strong>of</strong>ar as it is strictlyproportional to the mandatory reason <strong>of</strong> general interest which justifies such a restriction. Inthis case, the challenged regulation, on the one hand, requires that the patient obtains priorauthorization for treatment in a Member State other than the Member State <strong>of</strong> affiliation, if hewishes to be covered by the sickness insurance fund to which he is affiliated and the careprovider has not concluded a contract with that fund; on the other hand, it subjects thegranting <strong>of</strong> such authorization to the condition that the medical treatment <strong>of</strong> the insuredperson requires such an authorization. As regards hospital treatment, the Court concedes thatsuch conditions are compatible with the free provision <strong>of</strong> services, since, in the absence <strong>of</strong>379 For example, Concl. XVI-2.380 United Nations Committee on Economic, Social and Cultural Rights, General Comment n°14, “The right to thehighest attainable standard <strong>of</strong> health (Art. 12 <strong>of</strong> the Covenant)”, adopted at the twenty-second session (2000), par.32.381 ECJ, 13 May 2003, Müller-Fauré, C-385/99, not yet published.382 ECJ, 28 April 1998, Decker, C-120/95, ECR I-1831.383 ECJ, 28 April 1998, Kohll, C-158/96, ECR I-1931 ; ECJ, 12 July 2001, Smits and Peerbooms, C-157/99, ECRI-5473.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003125such conditions being imposed, “the competent State could no longer guarantee that in itsterritory there would be a high-quality, balanced medical and hospital service open to all andhence a high level <strong>of</strong> public health protection” (recital 69). The Court, however, specifies inconnection with the second condition that the authorization to be treated in another MemberState cannot be refused on the ground <strong>of</strong> the possibility <strong>of</strong> receiving treatment in the MemberState where the sickness insurance fund is established to which the insured person is affiliatedunless an identical treatment or treatment presenting the same degree <strong>of</strong> efficacy for thepatient may be secured at an appropriate time at an establishment that has concluded anagreement with the sickness fund in question. On the other hand, the Court arrives at anopposite conclusion as regards non-hospital treatment. The Court is indeed not convinced that“removal <strong>of</strong> the requirement for prior authorisation for that type <strong>of</strong> care would give rise topatients travelling to other countries in such large numbers, despite linguistic barriers,geographic distance, the cost <strong>of</strong> staying abroad and lack <strong>of</strong> information about the kind <strong>of</strong> careprovided there, that the financial balance <strong>of</strong> the Netherlands social security system would beseriously upset and that, as a result, the overall level <strong>of</strong> public-health protection would bejeopardised - which might constitute proper justification for a barrier to the fundamentalprinciple <strong>of</strong> freedom to provide services” (recital 95).The judgment clearly illustrates how the principle <strong>of</strong> free provision <strong>of</strong> medical services – thepossibility for patients to be treated in another member State than that <strong>of</strong> the sicknessinsurance fund to which they are affiliated – may have an impact on the capacity <strong>of</strong> memberStates to guarantee a health care system which is financially viable and <strong>of</strong>fers a public healthcare that is open to all. The Court <strong>of</strong> Justice <strong>of</strong> the European Communities has no wish tochallenge the possibility for Member States to set up and maintain such a system, although atthe same time it considers that any obstacle to the free provision <strong>of</strong> services which is notjustified with regard to this objective is incompatible with Community law. Neither Article 31<strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, nor any “fundamental right to health”, played a role assuch in the judgment <strong>of</strong> 13 May 2003, although mandatory reasons <strong>of</strong> general interest thatmight justify a restriction <strong>of</strong> the free provision <strong>of</strong> medical services are connected with it 384 .A Commission Communication has been announced for early 2004 on the future <strong>of</strong> healthcare and in particular the health care <strong>of</strong> the elderly 385 . The EU Network <strong>of</strong> IndependentExperts on Fundamental Rights will examine very scrupulously the substance <strong>of</strong> the optionsproposed with regard to Article 35 <strong>of</strong> the Charter as it should be interpreted in accordancewith Article 11 <strong>of</strong> the (Revised) European Social Charter, and Article 12 on the InternationalCovenant on Economic, Social and Cultural Rights.Article 36. Access to services <strong>of</strong> general economic interestOn 21 May 2003, the Commission presented a Green Paper on services <strong>of</strong> general interest 386 ,aimed at initiating broad consultation concerning in particular the expediency <strong>of</strong> adopting aFramework Directive laying down the principles relating to services <strong>of</strong> general interestunderlying Article 16 EC and on the substance <strong>of</strong> such legislation 387 . The previous report <strong>of</strong>384 In his opinion <strong>of</strong> 22 October 2002, Mr Advocate General D. Ruiz-Jarabo Colomer notes, “il p<strong>eu</strong>t s'agir de troisraisons distinctes: l'une consiste à éviter un risque d'atteinte grave à l'équilibre financier du système de sécuritésociale; la d<strong>eu</strong>xième est déduite de l'objectif de garantir un service médical et hospitalier équilibré et accessible àtous et relève des exceptions pour motifs de santé publique prévues par l'article 46 CE dans la mesure où un telobjectif contribue à la réalisation d'un niveau élevé de protection de la santé; la troisième raison, enfin, réside dansle souci de maintenir la capacité de soins ou la compétence médicale sur le territoire national, maintien essentiel àla santé publique, voire même à la survie de la population » (Recital 44).385 See (SOC)116, 10.3.2003.386 COM(2003)270 final.387 See already the Communication from the Commission on the Status <strong>of</strong> Work on an Examination <strong>of</strong> a Proposalfor a Framework Directive on Services <strong>of</strong> General Interest (COM(2002)689 final <strong>of</strong> 4/12/2002). The EuropeanConvention proposed on Article III-6 in the third part <strong>of</strong> the Constitution, which reads, “given the place occupiedCFR-CDF.rep.UE.2003.en

126EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSthe EU Network <strong>of</strong> Independent Experts on Fundamental Rights already contained commentson this question. In its Report on the Situation <strong>of</strong> Fundamental Rights in the European Unionand its Member States in 2002, it underlined the appropriateness <strong>of</strong> closely linking areflection on services <strong>of</strong> general interest in the Union to the protection <strong>of</strong> certain essentialneeds in international human rights law 388 . There is no need to reiterate here the argument infavour <strong>of</strong> a firmer embedding in the fundamental economic and social rights <strong>of</strong> the reflectionon services <strong>of</strong> general interest, and more particularly on the status that may be given toservices <strong>of</strong> general economic interest, derogating from the rules <strong>of</strong> the Treaty <strong>of</strong> Rome in thefield <strong>of</strong> competition, aids granted by States, or guaranteeing fundamental economic freedoms<strong>of</strong> movement, according to the derogation formula put in place by Article 86 § 2 EC for thebenefit <strong>of</strong> Member States. The important step that has been taken with the adoption <strong>of</strong> theGreen Paper in favour <strong>of</strong> a clarification <strong>of</strong> the legal framework applicable to services <strong>of</strong>general economic interest 389 and <strong>of</strong> the identification <strong>of</strong> a European concept <strong>of</strong> those servicesand <strong>of</strong> the rules that should govern the management, evaluation and funding <strong>of</strong> those servicescalls for several comments.In the chapter <strong>of</strong> the Communication <strong>of</strong> 21 May 2003 bringing together a set <strong>of</strong> obligationsthat are traditionally associated with the concept <strong>of</strong> service <strong>of</strong> general economic interest - inparticular in the sectorial Directives that have been adopted in order to open up those servicesto competition, while ensuring that the general interest remains safeguarded -, theCommission cites the universal service (ensuring that certain services are made available to“all consumers and users throughout the territory <strong>of</strong> a Member State, <strong>independent</strong>ly <strong>of</strong>geographical location, and, in the light <strong>of</strong> specific national conditions, at an affordableprice”), continuity (i.e. “the provider <strong>of</strong> the service is obliged to ensure that the service isprovided without interruption”), quality <strong>of</strong> service (in terms <strong>of</strong> safety, billing, protectionagainst disconnection, etc), affordability (accessibility for all people, in order to guaranteesocial and territorial cohesion), user and consumer protection (particularly in terms <strong>of</strong>,besides quality <strong>of</strong> service and transparency <strong>of</strong> billing already cited, “choice <strong>of</strong> service, choice<strong>of</strong> supplier, effective competition between suppliers, existence <strong>of</strong> regulatory bodies,availability <strong>of</strong> redress mechanisms, representation and active participation <strong>of</strong> users andconsumers in the definition <strong>of</strong> services, and choice <strong>of</strong> forms <strong>of</strong> payment”) 390 .by services <strong>of</strong> general economic interest as services to which all in the Union attribute value as well as their role inpromoting social and territorial cohesion, the Union and the Member States, each within their respective powersand within the scope <strong>of</strong> application <strong>of</strong> the Constitution, shall take care that such services operate on the basis <strong>of</strong>principles and conditions, in particular economic and financial, which enable them to fulfil their missions.European laws shall define these principles and conditions”. The principle <strong>of</strong> an intervention <strong>of</strong> the Europeanlegislator to establish the operating principles <strong>of</strong> services <strong>of</strong> general economic interest has therefore been acquiredin the spirit <strong>of</strong> the pre-constituent authority.388 Report on the Situation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002, pp. 234-237.389 The distinction between services <strong>of</strong> general non-economic interest and services <strong>of</strong> general economic interest hasbeen clarified by the case-law. Are not considered as “economic” the activities carried out by bodies whosefunctions are essentially <strong>of</strong> a social nature, which do not make pr<strong>of</strong>it and whose purpose it is not to carry out anindustrial or commercial activity, but have solidarity as their goal. Economic activities, on the other hand, areactivities that consist <strong>of</strong> providing goods or services on a given market. See ECJ, 17 February 1993, Poucet andPistre, joined cases C-159/91 and C-160/91, ECR I-637, recital 18; ECJ, 16 November 1995, Fédération françaisedes sociétés d’assurance and others, C-244/94, ECR I-4013; Communication from the Commission, “Services <strong>of</strong>General Interest in Europe”, COM(2000)580 final, <strong>of</strong> 20/9/2000, OJ C 17 <strong>of</strong> 19/1/2001, here par. 28-30. The rules<strong>of</strong> the EC Treaty on competition law, freedoms <strong>of</strong> movement or aids granted by States only apply to services <strong>of</strong>general economic interest. Article 86 §2 EC was designed to allow Member States to develop a policy geared tothe general interest where the market does not produce the desired results. This provision provides that theapplication <strong>of</strong> the rules <strong>of</strong> the Treaty to those economic activities, but invested with an obligation <strong>of</strong> public service,“does not obstruct the performance, in law or in fact, <strong>of</strong> the particular tasks assigned to them”.390 On the question <strong>of</strong> the expediency for the Commission to re-examine the possibility <strong>of</strong> taking an initiativeaimed at better guaranteeing the pluralism <strong>of</strong> the media, the safeguarding <strong>of</strong> which is currently entrusted to theMember States (see par. 73 and 74, Green Paper), see what has been said on this issue above under Article 11 <strong>of</strong>the Charter.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003127The Green paper presents the concept <strong>of</strong> universal service as implying, in particular, theadoption <strong>of</strong> specific measures concerning disability, age or education. This is to be welcomed.However, the requirement <strong>of</strong> non-discrimination on the ground <strong>of</strong> membership <strong>of</strong> a nationalminority seems not to have been fully integrated 391 . Moreover, it is important to present this asconstituting an obligation, linked to the requirement <strong>of</strong> non-discrimination, to effectivelyaccommodate the specific needs <strong>of</strong> the service user, to the extent at least that this does notimpose a disproportionate burden on the provider <strong>of</strong> services. The formulation which we findin Article 7 <strong>of</strong> Directive 2002/22/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 7March 2002 on universal service and users' rights relating to electronic communications<strong>network</strong>s and services (Universal Service Directive) 392 still remains under what would bedesirable, firstly because this provision does not make it mandatory to adopt specificmeasures in favour <strong>of</strong> disabled persons - although this is a mere consequence <strong>of</strong> the obligationto provide services to all persons, without discrimination -, and secondly because the termsused are too vague to allow an objective and transparent evaluation by the national regulatoryauthorities <strong>of</strong> the performance <strong>of</strong> undertakings entrusted with tasks <strong>of</strong> general interest, fromthe viewpoint <strong>of</strong> the requirement <strong>of</strong> universal service. Furthermore, use must be made <strong>of</strong> aformula which also guarantees universal service without discrimination to elderly people(who experience, for example, mobility problems or impairment <strong>of</strong> eyesight or hearing) andpersons who are illiterate or are unable to handle certain tools, notably modern informationand communication technologies, and for whom special systems ought to be designed, forinstance to obtain information, hand in forms or lodge complaints.With regard to the concept <strong>of</strong> continuity, the Commission Green Paper notes, “At nationallevel, the continuity requirement needs to be reconciled with the employees' right to strike andwith the requirement to respect the rule <strong>of</strong> law” (par. 55). In the perspective <strong>of</strong> the elaboration<strong>of</strong> a Framework Directive, it would be a good idea if the case-law developed by the EuropeanCommittee <strong>of</strong> Social Rights on the basis <strong>of</strong> Article 1 § 2 <strong>of</strong> the (Revised) European SocialCharter were to guide a precise identification <strong>of</strong> the limits not to be exceeded by MemberStates in any restrictions they might wish to impose, in the name <strong>of</strong> continuity <strong>of</strong> publicservice, on the right to strike, whether in public or in private undertakings. This provision <strong>of</strong>the European Social Charter guarantees the right <strong>of</strong> the worker “to earn his living in anoccupation freely entered upon”; it includes a protection against the obligation to carry onworking and may prevent the imposition <strong>of</strong> sanctions on any worker who has interrupted hiswork 393 . Although Article 31 <strong>of</strong> the European Social Charter (Article G <strong>of</strong> the RevisedEuropean Social Charter) allows restrictions to those rights, such restrictions must beprescribed by law and must be necessary in a democratic society for the protection <strong>of</strong> therights and freedoms <strong>of</strong> others or for the protection <strong>of</strong> public interest, national security, publichealth, or morals. The European Committee <strong>of</strong> Social Rights has had, for example, on twooccasions to render negative conclusions on Italy, where a particular law n°146 <strong>of</strong> 1990permitted the requisitioning <strong>of</strong> striking workers in essential public services (including publictransport or communication services, such as the post <strong>of</strong>fice, telecommunications and publicmedia) in conditions which, according to the Committee, went beyond the limits imposed byArticle 31 <strong>of</strong> the European Social Charter, namely on account <strong>of</strong> the number and type <strong>of</strong>services concerned 394 . It is particularly important that the Member States adequately define391See, hereabove, the analysis presented under Article 21 <strong>of</strong> the Charter.392 OJ L 108, 24.4.2002, p. 51. According to this provision, concerning « Special measures for disabled users » :« 1. Member States shall, where appropriate, take specific measures for disabled end-users in order to ensureaccess to and affordability <strong>of</strong> publicly available telephone services, including access to emergency services,directory enquiry services and directories, equivalent to that enjoyed by other end-users. 2. Member States maytake specific measures, in the light <strong>of</strong> national conditions, to ensure that disabled end-users can also take advantage<strong>of</strong> the choice <strong>of</strong> undertakings and service providers available to the majority <strong>of</strong> end-users ».393 For a discussion <strong>of</strong> the situation that presented itself in Greece in 2002, see Report on the Situation <strong>of</strong>Fundamental Rights in the European Union and its Member States in 2002, pp. 210-211.394 Concl. XIV-I, p. 483 ; Concl. XV-1, p. 376.CFR-CDF.rep.UE.2003.en

128EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSthe restrictions to the right to strike which the continuity <strong>of</strong> public service may justify, so thatthe workers concerned may know exactly the extent <strong>of</strong> their obligations in that respect.As regards the requirements <strong>of</strong> quality <strong>of</strong> service and affordability, the suggestions made inthe Green Paper should be appraised while keeping in mind the general framework in whichthe discussion on the services <strong>of</strong> general economic interest is situated. In the system <strong>of</strong> theTreaty <strong>of</strong> Rome, the possibility for Member States to grant special or exclusive rights tocertain undertakings special or to grant them certain aids constitutes a derogation, strictlyinterpreted, from the rule that all economic activity must be subject to the provisions <strong>of</strong> theEC Treaty on competition law, the prohibition <strong>of</strong> State aids, or the freedom <strong>of</strong> movement.It is therefore up to the Member States to define the scope <strong>of</strong> protection which they wish to<strong>of</strong>fer to citizens who are poor or living far from urban areas or infrastructure <strong>network</strong>s, in theaccess to services <strong>of</strong> general interest, subject to harmonization measures taken by theCommunity. Community law does not provide for any obligation for Member States toprovide a minimum service to all in order to cater for the essential needs <strong>of</strong> the poorestsections <strong>of</strong> the population in gas, electricity, water, or telecommunications 395 . States may <strong>of</strong>fersuch a minimum service, on condition that 1° the organization modalities which they use tothis end are strictly regulated, that any benefit granted to an undertaking charged withcarrying out tasks <strong>of</strong> general interest must be justified as necessary for the realization <strong>of</strong> thisobligation, and that any financial compensation for the cost incurred by the obligation toprovide a service must be determined according to objective parameters 396 ; 2° the States aresubject to rigorous budgetary discipline within the framework <strong>of</strong> the economic and monetaryunion; and 3° for the supply <strong>of</strong> certain basic services, for instance in banking or insurance 397 ,the national authorities are strongly interdependent with other States, and their freedom t<strong>of</strong>ollow their own concept <strong>of</strong> general interest may be limited by their concern not to arouseopportunistic behaviour in consumers residing in other States. Under those conditions, theinterpretation that is given <strong>of</strong> the requirements <strong>of</strong> subsidiarity and the division <strong>of</strong> powersbetween the Union and the Member States does not rule out the risk that Member States maybe tempted not to make any progress in the realization <strong>of</strong> the fundamental economic andsocial rights which they have nevertheless undertaken to respect at the international level. Itwould be a good idea to work out compensatory mechanisms. At the very least, one couldcontemplate setting up a mechanism to promote good practices in Member States in theprovision <strong>of</strong> a basic service, allowing the poorest citizens access to essential social goods, andguaranteeing access to those goods <strong>independent</strong>ly <strong>of</strong> any financial contribution on the part <strong>of</strong>the user (minimum supply <strong>of</strong> electricity, gas and drinking water, free transport for people onState benefits, guaranteed access for all to essential banking services irrespective <strong>of</strong> income,exemption from payment <strong>of</strong> premiums for certain types <strong>of</strong> compulsory insurance).395 In a Resolution <strong>of</strong> 1997, the European Parliament considered, “the Union should have the responsibility toensure that, in accordance with the principle <strong>of</strong> subsidiarity, the Member States determine for each sector a number<strong>of</strong> public service obligations which may include fixing the minimum level <strong>of</strong> services, wherever the marketmechanism fails to function throughout the territory <strong>of</strong> the Union” (Resolution on the communication from theCommission on “Services <strong>of</strong> general interest in Europe”, COM(96)443 – C4-0507/96, res. A4-0357/97, OJ C 14 <strong>of</strong>19/1/1998, p. 74 (Recital O)).396 Regarding State aids in the area <strong>of</strong> urban, suburban or regional transport, see ECJ, 24 July 2003, Altmark, C-280/00, not yet published.397 It is a similar line <strong>of</strong> reasoning that led the Commission to propose the inclusion <strong>of</strong> the field <strong>of</strong> insurance in itsproposal for a Council Directive implementing the principle <strong>of</strong> equal treatment between women and men in theaccess to and supply <strong>of</strong> goods and services, discussed above (Article 23 <strong>of</strong> the Charter) (see Preamble, p. 12:“…where a move by a single Member State to require unisex tariffs could expose its insurers to undercutting inpart <strong>of</strong> its market by businesses in other Member States”).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003129Article 37. Environmental protectionLike Article 35 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights analyzed above, Article 37 embodieswhat is generally considered to be a « principle », rather than a « subjective right » <strong>of</strong> theindividual. It should be clear however, that Article 37 <strong>of</strong> the Charter can be the source <strong>of</strong>rights to the individual, where such rights are formulated in instruments which implement theprinciple <strong>of</strong> the protection <strong>of</strong> the environment. Moreover, any legislative act – either adoptedby the EU institutions or adopted by the Member States acting in the field <strong>of</strong> application <strong>of</strong>EU law – which would run counter to the principle formulated in Article 37 <strong>of</strong> the Charterwould constitute a violation <strong>of</strong> that provision, and therefore should be consideredincompatible with EU Law and possibly annulled.Since the principle <strong>of</strong> the protection <strong>of</strong> the environment is formulated as subjective rights thatcan be invoked directly by an individual, there is nothing to prevent these rights from beingconsidered as having the status <strong>of</strong> fundamental rights in the legal order <strong>of</strong> the EuropeanUnion, as they are enshrined in Article 37 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. Such is thecase with procedural rights, such as the right <strong>of</strong> access to environmental information, or theright to study the environmental impact <strong>of</strong> certain public policies that are liable to harm thehealth <strong>of</strong> the individual or, more broadly, the individual’s right to private and/or family life 398 .The judgment in the case <strong>of</strong> Hatton and others v. United Kingdom is one <strong>of</strong> the mostimportant judgments delivered by the European Court <strong>of</strong> Human Rights during the periodunder scrutiny 399 . The applicants, local residents living in the vicinity <strong>of</strong> Heathrow Airport inLondon, complained <strong>of</strong> numerous disturbances arising from night flights over their homes,obliging some residents to go and live elsewhere. The situation deteriorated since theintroduction in 1993 <strong>of</strong> a noise quota scheme for the night quota period. The initial planunderwent several changes, following court judgments obtained by the local authorities forthe areas situated around the three main London airports. After several public consultations, anew plan came into force in October 1999. In the meantime, the applicants had filed anapplication with the European Commission <strong>of</strong> Human Rights, claiming the policy set up bythe Government in 1993 on night flights at Heathrow resulted in a violation <strong>of</strong> their rightsguaranteed by Articles 8 (private and family life) and 13 (effective remedy) <strong>of</strong> theConvention. On 2 October 2001, a chamber set up within the third section <strong>of</strong> the Courtdelivered its judgment, in which it concluded that these two provisions had been infringed.The judgment <strong>of</strong> 8 July 2003 was given on referral by the Grand Chamber <strong>of</strong> the Court, andled to the following opposite conclusion. The Court concluded that there had been noinfringement <strong>of</strong> Article 8 <strong>of</strong> the Convention, since it considered that the State had notexceeded the wide margin <strong>of</strong> appreciation that has to be allowed it in the area <strong>of</strong>environmental policy. It defines the procedural obligations flowing from the “environmentalhuman rights” (§ 122) as follows, “A governmental decision-making process concerningcomplex issues <strong>of</strong> environmental and economic policy such as in the present case mustnecessarily involve appropriate investigations and studies in order to allow them to strike afair balance between the various conflicting interests at stake. However, this does not meanthat decisions can only be taken if comprehensive and measurable data are available inrelation to each and every aspect <strong>of</strong> the matter to be decided” (§ 128). The decision, however,does not call into question the assertion that, since the States are required to “minimise, as faras possible, the interference with these rights, by trying to find alternative solutions (…), aproper and complete investigation and study with the aim <strong>of</strong> finding the best possible solution398 See already Eur. Ct. H.R., Powell and Rayner v. United Kingdom, judgment <strong>of</strong> 21 February 1990, series A n°172, § 40: since the applicants complained <strong>of</strong> noise nuisance generated by air traffic during the daytime, the Courtconsidered that Article 8 came into play, since “in each case, the quality <strong>of</strong> the applicant’s private life and thescope for enjoying the amenities <strong>of</strong> his home have been adversely affected by the noise generated by aircraft usingHeathrow Airport”.399 Eur. Ct. H.R. (GC), Hatton and others v. United Kingdom, judgment <strong>of</strong> 8 July 2003, application n° 36022/97.CFR-CDF.rep.UE.2003.en

130EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS(…) should precede the relevant project” 400 . However, the judgment delivered on 8 July 2003by the Grand Chamber considers, “Having regard to the general nature <strong>of</strong> the measures taken,(…) the authorities were entitled to rely on statistical data based on average perception <strong>of</strong>noise disturbance” (§ 125) and to adopt certain measures, even if, for some residents who areparticularly sensitive to noise, the negative impact might be such as to oblige them to move.The Hatton judgment reaffirms that the States Parties to the European Convention on HumanRights have to regulate the activities <strong>of</strong> private persons in order to combat the environmentaldisturbances for which they may be directly responsible. Making instruments available tobusinesses to allow continuous monitoring <strong>of</strong> their environmental performance would be afirst step in making them more responsible for the environment. On 10 July 2003, theCommission adopted a Recommendation on guidance for the implementation <strong>of</strong> Regulation(EC) No 761/2001 <strong>of</strong> the European Parliament and <strong>of</strong> the Council allowing voluntaryparticipation by organisations in a Community eco-management and audit scheme (EMAS)concerning the selection and use <strong>of</strong> environmental performance indicators 401 . TheRecommendation seeks to facilitate the establishment <strong>of</strong> environmental reports, on theenvironmental performance <strong>of</strong> private organisations. It insists to that effect on the principles<strong>of</strong> comparability (enabling to identify changes in the environmental performance), balancebetween problematic (bad) and prospective (good) aspects, continuity (facilitatingcomparisons in time), timeliness (regular updating <strong>of</strong> indicators to ensure reactivity to newdevelopments), clarity and understandability.The instruments which the European Community and Union have at their disposal tosafeguard the right to environmental protection are diverse. During the period under scrutiny,three important instruments were adopted that reflect this concern. They are aimed atcriminalizing serious environmental <strong>of</strong>fences and combating impunity for crimes that causedamage to the environment by approximating the criminal laws <strong>of</strong> the Member States;ensuring the right <strong>of</strong> access to environmental information; and guaranteeing publicinvolvement in the development <strong>of</strong> environmental policy.Criminalizing serious environmental <strong>of</strong>fencesThe first important instrument adopted during the period under scrutiny is the CouncilFramework Decision 2003/80/JHA <strong>of</strong> 27 January 2003 on the protection <strong>of</strong> the environmentthrough criminal law 402 . The Framework Decision is adopted on the basis <strong>of</strong> Article 29,Article 31(e) and Article 34(2)(b) TEU 403 . It lists a number <strong>of</strong> serious environmental <strong>of</strong>fences(Articles 2 and 3). And it encourages Member States to adopt criminal sanctions against bothphysical and legal persons 404 , and to provide for extra-territorial jurisdiction, « in such a wayas to avoid that physical or legal persons would escape prosecution by the simple fact that the<strong>of</strong>fence was not committed in their territory » (Preamble, Recital 9). Article 8 <strong>of</strong> theFramework Decision provides that each Member State shall establish its jurisdiction, interalia, where 1° the <strong>of</strong>fence « has been committed fully or in part in its territory, even if theeffects <strong>of</strong> the <strong>of</strong>fence occur entirely elsewhere » ; or 2° « for the benefit <strong>of</strong> legal persons witha registered <strong>of</strong>fice in its territory » ; or 3° « by one <strong>of</strong> its nationals if the <strong>of</strong>fence is punishable400 Eur. Ct. H.R. (3 rd section), Hatton and others v. United Kingdom, judgment <strong>of</strong> 2 October 2001, applicationn°36022/97, § 97.401 OJ L 184 <strong>of</strong> 23/7/2003, p. 19.402 OJ L 29 <strong>of</strong> 5/2/2003, p. 55.403 This is despite the fact that the European Commission had submitted in March 2001 a proposal for a Directive<strong>of</strong> the European Parliament and the Council concerning the protection <strong>of</strong> the environment by criminal law basedon Article 175(1) <strong>of</strong> the Treaty establishing the European Community (COM(2001)139 final, OJ C 180 E,26/6/2001, p. 238). See also the modified proposal <strong>of</strong> 30 September 2002, COM(2002)544 final, OJ C 020 E ,28/1/2003, p. 284.404 See Article 6 <strong>of</strong> the Framework Decision. Legal persons will be liable where the <strong>of</strong>fence has been committedfor its benefit by a natural person having a leading role in the organisation, or where the commission <strong>of</strong> the <strong>of</strong>fencecan be attributed to the lack <strong>of</strong> supervision or control by the legal person.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003131under criminal law where it was committed or if the place where it was committed does notfall under any territorial jurisdiction ». The latter two grounds <strong>of</strong> extra-territorial jurisdiction,based on the active personality principle <strong>of</strong> jurisdiction, remain optional : under Article 8 § 2<strong>of</strong> the Framework Decision, « any Member State may decide that it will not apply, or that itwill apply only in specific cases or circumstances ». However, where a Member State decidesnot to make an <strong>of</strong>fence punishable where it is committed outside its national territory by one<strong>of</strong> its nationals, the State must agree to extradite its national so that he may be prosecuted inthe State where the <strong>of</strong>fence was committed : Article 9(1) <strong>of</strong> the Framework Decision, indeed,says that « Any Member State which, under its law, does not yet extradite its own nationalsshall take the necessary measures to establish its jurisdiction over the <strong>of</strong>fences provided for inArticles 2 and 3 when committed by its own nationals outside its territory ». The purpose <strong>of</strong>the Framework Decision therefore is to avoid impunity for the serious environmental crimes.The Preamble <strong>of</strong> the Framework Decision (Recital 10) state that the Council <strong>of</strong> EuropeConvention on the protection <strong>of</strong> the environment through criminal law, <strong>of</strong> 4 November1998 405 , « has been taken account <strong>of</strong> » in the drafting <strong>of</strong> the Decision. This Convention alsoprovides that the Parties establish their jurisdiction with respect to criminal <strong>of</strong>fences which itdefines – which, like Framework Decision 2003/80/JHA, may be committed intentionally ornot (negligence) –, notably where the <strong>of</strong>fence in question has been committed on the territory<strong>of</strong> the State Party, “by one <strong>of</strong> its nationals if the <strong>of</strong>fence is punishable under criminal lawwhere it was committed or if the place where it was committed does not fall under anyterritorial jurisdiction » (article 5(1) <strong>of</strong> the Convention). Article 5 § 2 <strong>of</strong> the Convention adds,“Each Party shall adopt such appropriate measures as may be necessary to establishjurisdiction over a criminal <strong>of</strong>fence established in accordance with [the] Convention, in caseswhere an alleged <strong>of</strong>fender is present in its territory and it does not extradite him to anotherParty after a request for extradition ». This additional guarantee against impunity is notprovided for in Framework Decision 2003/80/JHA, which is regrettable. The refusal toextradite may in fact be based on another reason than the fact that the person whoseextradition is requested has the nationality <strong>of</strong> the requested Member State – for example, theprocedures in the requesting Member State do not meet the requirements governing fair trial,or the requesting State does not <strong>of</strong>fer guarantees as to its willingness to ensure effectivesuppression <strong>of</strong> the <strong>of</strong>fences in question. The Convention <strong>of</strong> the Council <strong>of</strong> Europe alsoencourages the Parties to provide, at the expense <strong>of</strong> perpetrators <strong>of</strong> <strong>of</strong>fences causing seriousdamage to the environment, for an obligation to reinstate the environment (Article 8). TheFramework Decision makes no reference to such a way <strong>of</strong> remedying damage caused,although the Framework Decision does provide among the sanctions applicable to a legalperson an obligation to « adopt specific measures in order to avoid the consequences <strong>of</strong>conduct such as that on which the criminal liability was founded » (article 7, e), <strong>of</strong> theFramework Decision). Finally, the Convention <strong>of</strong> the Council <strong>of</strong> Europe encourages the StatesParties to provide for groups that aim to protect the environment the right to participate incriminal proceedings concerning <strong>of</strong>fences established in accordance with the Convention(Article 11). Framework Decision 2003/80/JHA is silent on this issue.In 2005-2006, an evaluation is scheduled <strong>of</strong> the implementation by the Union Member States<strong>of</strong> Framework Directive 2003/80/JHA <strong>of</strong> 27 January 2003 (see Article 10 § 2). It would bedesirable to contemplate, in the long term, the alignment <strong>of</strong> the provisions <strong>of</strong> the FrameworkDecision to the provisions <strong>of</strong> the Council <strong>of</strong> Europe Convention. The latter has so far onlybeen ratified by Estonia (26/4/2002); it has been signed by a minority <strong>of</strong> the European UnionMember States (Germany, Austria, Belgium, Denmark, Finland, France, Greece, Italy,Luxembourg, Sweden).405 ETS n° 172.CFR-CDF.rep.UE.2003.en

132EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSGuarantee the right <strong>of</strong> the public to access to environmental informationDirective 2003/4/EC <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 28 January 2003 onpublic access to environmental information and repealing Council Directive 90/313/EEC 406 isbased on the idea that « Increased public access to environmental information and thedissemination <strong>of</strong> such information contribute to a greater awareness <strong>of</strong> environmental matters,a free exchange <strong>of</strong> views, more effective participation by the public in environmentaldecision-making and, eventually, to a better environment » (Preamble, Recital 1). ThisDirective also seeks to ensure the compatibility <strong>of</strong> EC law with the UN/ECE « Aarhus »Convention on Access to Information, Public Participation in Decision-Making and Access toJustice in Environmental Matters, which the EC signed on 25 June 1998 together with thefifteen Member States 407 . Article 3(1) <strong>of</strong> the Directive states its governing principle :« Member States shall ensure that public authorities are required (…) to make availableenvironmental information held by or for them to any applicant at his request and without hishaving to state an interest ». Any limitation to the right to have access to environmentalinformation must be restrictively interpreted. Even where exceptions may be invoked inaccordance with the directive 408 , public authorities should make environmental informationavailable in part where it can be separated from the information falling within the scope <strong>of</strong> theexceptions (Recital 17).The Directive provides that, if environmental information is transmitted against a charge, thatcharge must be reasonable, i.e ., it should not exceed to cost incurred (Article 5). Access tojustice must be guaranteed where the information requested is denied (Article 6). In order toachieve the widest possible systematic availability and dissemination to the public <strong>of</strong>environmental information, the directive promotes the use <strong>of</strong> computer telecommunicationand electronic technology. Article 7, on the dissemination <strong>of</strong> the information, which detailsthis obligation, also provides that « Without prejudice to any specific obligation laid down byCommunity legislation, Member States shall take the necessary measures to ensure that, in theevent <strong>of</strong> an imminent threat to human health or the environment, whether caused by humanactivities or due to natural causes, all information held by or for public authorities whichcould enable the public likely to be affected to take measures to prevent or mitigate harmarising from the threat is disseminated, immediately and without delay » (Art. 7(4)).Ensure public participation in respect <strong>of</strong> the drawing up <strong>of</strong> certain plans and programmesrelating to the environmentLike the abovementioned Directive 2003/4/EC, Directive 2003/35/EC <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council <strong>of</strong> 26 May 2003 providing for public participation in respect <strong>of</strong>the drawing up <strong>of</strong> certain plans and programmes relating to the environment and amendingwith regard to public participation and access to justice Council Directives 85/337/EEC and96/61/EC 409 seeks to ensure the compatibility <strong>of</strong> EC Law with the UN/ECE « Aarhus »Convention on Access to Information, Public Participation in Decision-Making and Access toJustice in Environmental Matters. This Convention seeks, inter alia, to « guarantee rights <strong>of</strong>public participation in decision-making in environmental matters in order to contribute to theprotection <strong>of</strong> the right to live in an environment which is adequate for personal health andwell-being » (Preamble, Recital 6). Directive 2003/35/EC therefore amends Council Directive85/337/EEC <strong>of</strong> 27 June 1985 on the assessment <strong>of</strong> the effects <strong>of</strong> certain public and private406 OJ L 41, 14/2/2003, p. 26. The Directive replaces Council Directive 90/313/EEC <strong>of</strong> 7 June 1990 on the freedom<strong>of</strong> access to information on the environment (OJ L 158, 23/6/1990, p. 56). Directive 90/313/EEC is repealed witheffect from 14 February 2005.407 The Convention entered into force on 1 October 2001.408 Article 4(2) f) includes among the exceptions the need to protect personal data, as provided, i.a., by Directive95/46/EC.409 OJ L 156, 25/6/2003, p. 17.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003133projects on the environment 410 , and Council Directive 96/61/EC <strong>of</strong> 24 September 1996concerning integrated pollution prevention and control 411 , to ensure their full compatibilitywith the provisions <strong>of</strong> the Århus Convention.The Aarhus Convention on access to information, public participation in decision making andaccess to justice regarding environmental mattersThe Aarhus Convention, which is explicitly referred to both in Directive 2003/4/EC <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council <strong>of</strong> 28 January 2003 on public access toenvironmental information and in Directive 2003/35/EC providing for public participation inrespect <strong>of</strong> the drawing up <strong>of</strong> certain plans and programmes relating to the environment, maybe taken into account not only for the interpretation <strong>of</strong> these directives, but also, if anincompatibility emerges, to assess their legality. In the Nakajima All Precision Co. Ltdjudgment <strong>of</strong> 7 May 1991, the Court confirmed that where a secondary law instrument “wasadopted in order to comply with the international obligations <strong>of</strong> the Community”, the latter isobliged to respect those obligations in the instrument which it adopts 412 . Directive 2003/88/ECshould also be interpreted taking into account the relevant case-law <strong>of</strong> the European Court <strong>of</strong>Human Rights, which derived from Article 8 <strong>of</strong> the European Convention on Human Rights aright <strong>of</strong> access to environmental information 413 . Finally, on 24 October 2003, the Commissionpresented a proposal for a Directive <strong>of</strong> the European Parliament and <strong>of</strong> the Council on accessto justice in environmental matters 414 . The adoption <strong>of</strong> this third instrument will complete thedefinition by the Community <strong>of</strong> the obligations incumbent upon the Member States under theAarhus Convention. The latter text is examined under Article 47 <strong>of</strong> the Charter.In accordance with Article 175(1) EC, the European Community is competent for becoming aParty to the Aarhus Convention. The Commission has proposed a Council Decision to thateffect 415 . It has also proposed the adoption <strong>of</strong> a Regulation ensuring the application <strong>of</strong> theAarhus Convention on Access to Information, Public Participation in Decision-making andAccess to Justice in Environmental Matters to EC institutions and bodies 416 , which relates toall three pillars <strong>of</strong> the Aarhus Convention. The relevant provisions <strong>of</strong> the proposed Regulationare commented upon under, respectively, Article 42 <strong>of</strong> the Charter (with respect to access toenvironmental information and the obligation imposed on public authorities to collect and410 OJ L 175, 5/7/1985. The Court <strong>of</strong> Justice <strong>of</strong> the European Communities considered that this Directive could berelied upon directly by individuals before the national judicial authorities against the public authorities, which willallow the latter to compensate for the consequences <strong>of</strong> an incomplete or deficient transposition: ECJ, 24 October1996, Kraaijeveld et al., C-72/95, ECR I-5403; ECJ, 16 September 1999, WWF et al., C-435/97, ECR I-5613; ECJ,19 September 2000, Linster, C-287/98, ECR I-6917. This reliance is one way only, i.e. it cannot justify,conversely, that the public authorities impose obligations on individuals directly by virtue <strong>of</strong> the Directive in orderto compensate for the deficient or incorrect transposition. This reliance does not apply vis-à-vis other individuals.However, the fact that the Directive can be relied upon against the public authorities and can consequently have animpact on the rights and interests <strong>of</strong> other individuals does not derogate from this principle: see the opinions <strong>of</strong> MrAdvocate General Ph. Léger <strong>of</strong> 25 September 2003, presented in the case C-201/02, The Queen, ex parte Wells.411 OJ L 257, 10/10/1996.412 ECJ, 7 May 1991, Nakajima, C-69/89, ECR I-2069, recital 31. See also ECJ, 26 October 1982, Kupferberg,104/81, recital 11, ECR 3641; ECJ, 16 March 1983, SIOT, 266/81, recital 28, ECR 731; ECJ, 23 November 1999,Portugal v. Council, C-149/96, ECR I-8395, recital 29. With regard to WTO law, the Court <strong>of</strong> First Instance <strong>of</strong> theEC confirms, “it is only where the Community intended to implement a particular obligation assumed in thecontext <strong>of</strong> the WTO, or where the Community measure refers expressly to the precise provisions <strong>of</strong> the WTOagreements, that it is for the Community judicature to review the legality <strong>of</strong> the Community measure in question inthe light <strong>of</strong> the WTO rules” (CFI, 11 January 2002, Biret International SA v. Council, T-174/00, ECR II-17, recital63).413 Eur. Ct. H.R., Guerra and others v. Italy, judgment <strong>of</strong> 19 February 1998, Rec. 1998-I; McGinley and Egan v.United Kingdom, judgment <strong>of</strong> 9 June 1998.414 COM(2003)624 final <strong>of</strong> 24/10/2003.415 Proposal for a Council Decision on the conclusion, on behalf <strong>of</strong> the European Community, <strong>of</strong> the Conventionon access to information, public participation in decision making and access to justice regarding environmentalmatters, COM(2003)625 final <strong>of</strong> 24/10/2003.416 COM(2003)622 final <strong>of</strong> 24/10/2003.CFR-CDF.rep.UE.2003.en

134EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSdisseminate environmental information) and Article 47 <strong>of</strong> the Charter (with respect to accessto justice in environmental matters).Article 38. Consumer protectionThere is no new significant development to be reported under this provision <strong>of</strong> the Charter,for the period under scrutiny.CHAPTER V: CITIZEN’S RIGHTSArticle 39. Right to vote and to stand as a candidate at elections to the EuropeanParliamentDuring the period under scrutiny, the following initiatives were taken at European Unionlevel.• Article 19, paragraph 2, EC provides that every Union citizen residing in a MemberState <strong>of</strong> which he does not have the nationality has the right to vote and to stand as acandidate at elections to the European Parliament in the Member State where he isresiding. Article 14 <strong>of</strong> Council Directive 93/109/EC <strong>of</strong> 6 December 1993 laying downdetailed arrangements for the exercise <strong>of</strong> the right to vote and to stand as a candidatein elections to the European Parliament for citizens <strong>of</strong> the European Union residing ina Member State <strong>of</strong> which they are not nationals 417 authorizes a Member State torequest a derogation from this principle if the proportion <strong>of</strong> citizens <strong>of</strong> the Union <strong>of</strong>voting age who reside in it but are not nationals <strong>of</strong> it exceeds 20 % <strong>of</strong> the total number<strong>of</strong> citizens <strong>of</strong> the Union residing there who are <strong>of</strong> voting age. This derogation hasbeen granted to Luxembourg. The Commission, in the context <strong>of</strong> the report that waspresented on 27 January 2003, examined the appropriateness <strong>of</strong> maintaining thisderogation for Luxembourg 418 . The Commission concluded that the reasons invokedfor granting this derogation are still warranted.• In order to guarantee that all voters are able to effectively exercise their right tovote in the elections to the European Parliament, which will take place from 10 to 13June 2004, the Commission issued a communication aimed at stimulating theimplementation in the new Member States <strong>of</strong> the Community acquis in this area andto encourage the timely registration <strong>of</strong> all Union citizens - including nationals <strong>of</strong> othernew Member States - in the electoral register, in the current as well as in the accedingMember States 419 . The Commission urges all acceding States, who have not yet doneso, to transpose Directive 93/109/EC without delay, in order to establish a legal basisfor the right <strong>of</strong> Union citizens to vote and stand as candidates in the elections to theEuropean Parliament. It also urges the current Member States and the accedingMember States to take the necessary measures to ensure that Union citizens and417 OJ L 329 <strong>of</strong> 30/12/1993, p. 34.418 Article 14 § 3 <strong>of</strong> Directive 93/109/EC provides, “18 months prior to each election to the European Parliament,the Commission shall submit to the European Parliament and to the Council a report in which it shall checkwhether the grant to the Member States concerned <strong>of</strong> a derogation pursuant to Article 8b (2) <strong>of</strong> the EC Treaty [nowArticle 19 EC, which provides in §2, that the detailed arrangements for the exercise <strong>of</strong> right to vote and to stand asa candidate at elections to the European Parliament for European Union citizens residing in a Member State <strong>of</strong>which they are not nationals may provide for derogations where warranted by problems specific to a MemberState] is still warranted and shall propose that any necessary adjustments be made (…)”.419 Communication from the Commission to the European Parliament and the Council on measures to be taken byMember States to ensure participation <strong>of</strong> all citizens <strong>of</strong> the Union to the 2004 elections to the European Parliamentin an enlarged Union, COM(2003)174 final <strong>of</strong> 8/4/2003.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003135nationals <strong>of</strong> the acceding States residing in their territory are entered on the electoralrolls for the elections to the European Parliament in good time before the elections.• In an important judgment <strong>of</strong> 18 February 1999, the European Court <strong>of</strong> HumanRights considered that the impossibility for residents <strong>of</strong> Gibraltar to take part in theelections to the European Parliament, taking into account the extension <strong>of</strong> the latter’scompetences when the Treaty on European Union came into effect, constituted aviolation <strong>of</strong> Article 3 <strong>of</strong> the First Additional Protocol to the European Convention onHuman Rights 420 . In a declaration adopted on 29 October 2003 on the subject <strong>of</strong> thecomplaint lodged by Spain against the United Kingdom for alleged violation <strong>of</strong>Community law as far as the right to vote in European Parliament elections inGibraltar is concerned 421 , the Commission declared, “following an in- depth analysis<strong>of</strong> the Spanish complaint and an oral hearing held on the 1st <strong>of</strong> October, theCommission considers that the UK has organised the extension <strong>of</strong> voting rights toresidents in Gibraltar within the margin <strong>of</strong> discretion presently given to MemberStates by the EU law. However, given the sensitivity <strong>of</strong> the underlying bilateral issue,the Commission at this stage refrains from adopting a reasoned opinion within themeaning <strong>of</strong> Article 227 <strong>of</strong> the Treaty and invites the parties to find an amicablesolution”.• In the opinion <strong>of</strong> 14 May 2003 on Access to European Union Citizenship, theEuropean Economic and Social Committee asked the European Convention that theright to vote and to stand as candidate in elections, derived from European citizenship,in municipal as well as in European elections, be extended to third country nationalswho are stable or long-term residents in the European Union. The conclusions <strong>of</strong> thisopinion are the following 422 :Granting EU citizenship to third-country nationals who are stable or long-termresidents is a positive step that demonstrates the EU's commitment to integrating allresidents, regardless <strong>of</strong> nationality.The immigrant population <strong>of</strong> the Member States is set to rise. Many <strong>of</strong> these peoplewill be stable or long-term residents. There will be an all-round increase in mobility asfreedom <strong>of</strong> movement evolves. The Convention must consider whether the presentpolitical and legal bases are adequate or not for promoting integration.The EESC calls on the Convention, in drafting the first EU Constitution, to apply theprinciple <strong>of</strong> equality to everyone, be they Member State or third country nationals,who resides on a legal and stable basis in the Union.The EESC calls on the Convention to provide a new criterion for granting Unioncitizenship: citizenship should be linked not only to nationality <strong>of</strong> a Member State, butalso to stable residence in the Union.The EESC therefore proposes to the Convention that Article 7 (Citizenship <strong>of</strong> theUnion) be granted not only to nationals <strong>of</strong> the Member States but to all persons whoreside on a stable or long-term basis in the European Union. Union citizenship will be420 Eur. Ct. H.R., Matthews v. United Kingdom, judgment <strong>of</strong> 18 February 1999, application n° 24833/94.421 At the adoption <strong>of</strong> Council Decision 2002/772/EC,Euratom <strong>of</strong> 25 June 2002 and 23 September 2002 amendingthe Act concerning the election <strong>of</strong> the representatives <strong>of</strong> the European Parliament by direct universal suffrage,annexed to Decision 76/787/ECSC, EEC, Euratom , OJ L 283 <strong>of</strong> 21/10/2002, p. 1, the UNited Kingdom declaredthat it would guarantee the faithful execution <strong>of</strong> the Matthews judgment.422 Opinion CES SOC/41 <strong>of</strong> 14 May 2003 on Access to European Union citizenship. See also, on the right to votein municipal and European elections, Opinion CES 1321/2001 on the Proposal for a Council Directive concerningthe status <strong>of</strong> third-country nationals who are long-term residents.CFR-CDF.rep.UE.2003.en

136EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSadditional to but will not replace national citizenship. In this way such persons will beEuropean citizens and therefore equal before the law.This opinion follows upon the reference to a form <strong>of</strong> “civic citizenship” put forward by theCommission in its proposals for aligning progressively the status <strong>of</strong> third country nationalswith that <strong>of</strong> the nationals <strong>of</strong> the Member States 423 . The right to vote in municipal electionsshould undoubtedly form part <strong>of</strong> the core <strong>of</strong> rights and obligations which third countrynationals should be recognized as nationals <strong>of</strong> the Member States, in conformity with thenotion <strong>of</strong> civic citizenship. The Convention on the Participation <strong>of</strong> Foreigners in Local PublicLife, opened for signature in the Council <strong>of</strong> Europe on 5 February 1992 424 , stipulates thatStates parties to that instrument undertake in principle “to grant all foreign residents the rightto vote and to stand as candidates in local elections, provided that they fulfil the sameconditions as those which apply to national citizens and, in addition, have resided legally andregularly in the State in question during the five years preceding the elections” (article 6(1)).Article 40. Right to vote and to stand as a candidate at municipal electionsIt is referred to the third question analyzed under Article 39 <strong>of</strong> the Charter.Article 41. Right to good administrationThe proceedings conducted in the field <strong>of</strong> competition law by the Commission where it actsaccording to its powers <strong>of</strong> investigation and inquiry in the sanctioning <strong>of</strong> anti-competitivepractices are where the rights <strong>of</strong> Article 41 <strong>of</strong> the Charter may be most frequently invoked 425 .Article 41(2) <strong>of</strong> the Charter guarantess, inter alia, “the right <strong>of</strong> every person to have access tohis or her file, while respecting the legitimate interests <strong>of</strong> confidentiality and <strong>of</strong> pr<strong>of</strong>essionaland business secrecy”. In its Cimenteries CBR SA v. Commission judgment <strong>of</strong> 15 March 2000,the Fourth Chamber <strong>of</strong> the Court <strong>of</strong> First Instance (extended composition) had considered thatthe impossibility for the undertakings concerned to have access to all the elements <strong>of</strong> the fileheld by the Commission did not justify the total annulment <strong>of</strong> a 1994 Decision by theCommission imposing fines on these undertakings operating in the grey and white cementsector, for infringing Article 85(1) <strong>of</strong> the EC Treaty (now Article 81(1) EC). Indeed, the Court<strong>of</strong> First Instance considered that even if such an access to the file had been granted by theCommission, these undertakings « would not have had even a small chance <strong>of</strong> altering theoutcome <strong>of</strong> the administrative procedure. Those applicants have not therefore shown in thatregard that there was any breach <strong>of</strong> their rights <strong>of</strong> defence during the administrativeprocedure » (Recital 3342). In his opinion delivered on 11 February 2003 on the appealagainst that judgment by Irish Cement Ltd, Advocate General Ruiz-Jarabo Colomerconcluded that the appeal should be rejected. Relying explicitly on Article 41(2) <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights, the Advocate General considered that the right to consult thefile, far from being « an end in itself », is merely « another tool at the service <strong>of</strong> the right <strong>of</strong>423 Communication <strong>of</strong> the Commission on a Community Immigration Policy, COM(2000) 757 final; see alsoCOM(2001)127 final.424 ETS n° 144. The Convention came into force on 1 May 1997.425 On the rights <strong>of</strong> defence in the context <strong>of</strong> such proceedings, see Commission Regulation (EC) No 2842/98 <strong>of</strong> 22December 1998 on the hearing <strong>of</strong> parties in certain proceedings under [Articles 81 EC and 82 EC], OJ 1998 L 354,p. 18, replacing Regulation n° 99/63/EEC <strong>of</strong> the Commission <strong>of</strong> 25 July 1963 on the hearings provided for inArticle 19(1) and (2) <strong>of</strong> Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47). See now Art.27(2) <strong>of</strong> Council Regulation (EC) n° 1/2003 <strong>of</strong> 16 December 2002 on the implementation <strong>of</strong> the rules oncompetition laid down in Articles 81 and 82 <strong>of</strong> the Treaty (OJ L 1, 4.1.2003, p. 1), which states in part : « Therights <strong>of</strong> defence <strong>of</strong> the parties concerned shall be fully respected in the proceedings. They shall be entitled to haveaccess to the Commission's file, subject to the legitimate interest <strong>of</strong> undertakings in the protection <strong>of</strong> their businesssecrets. The right <strong>of</strong> access to the file shall not extend to confidential information and internal documents <strong>of</strong> theCommission or the competition authorities <strong>of</strong> the Member States. (…)»CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003137defence ». Therefore such procedural defects « are irrelevant if, in spite <strong>of</strong> everything, theperson concerned has enjoyed the appropriate rights <strong>of</strong> defence » (point 34). The judgment <strong>of</strong>the Court <strong>of</strong> First Instance should therefore not be annulled (points 35 and 36) :…the instrumental nature <strong>of</strong> the right <strong>of</strong> access to the file entails a furtherconsequence. Even where access has not been properly granted, or where there havebeen defects in the way in which it was granted, and the person concerned hastherefore been less able to defend himself, the decision subsequently adopted may beannulled only if it is found that, if the proper procedural routes had been scrupulouslyfollowed, the outcome could have been more advantageous for the person concernedor if, precisely because <strong>of</strong> the procedural defect, it is impossible to ascertain whetherthe decision would have been different. In each case the final decision must beannulled and, if appropriate, the procedure repeated in order to put it right.In short, defects in the procedure do not have a life <strong>of</strong> their own in isolation from thesubstance <strong>of</strong> the case. If a decision taken in the wake <strong>of</strong> a defective procedure isannulled because, owing to the defects in the procedure leading to its adoption, it iswrong in substance, the decision is annulled because it is incorrect in substance, notbecause <strong>of</strong> the procedural defect. The defect in form assumes an <strong>independent</strong>existence only when, because it occurred, it is impossible to form an opinion about thedecision which was adopted.Article 42. Right <strong>of</strong> access to documentsThe right guaranteed in Article 42 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights has been concretizedthrough the adoption <strong>of</strong> Regulation (EC) No 1049/2001 <strong>of</strong> the European Parliament and <strong>of</strong> theCouncil <strong>of</strong> 30 May 2001 regarding public access to European Parliament, Council andCommission documents 426 , adopted on the basis <strong>of</strong> Article 255 EC 427 . Article 11 <strong>of</strong> thisRegulation imposes on each institution to create a public register <strong>of</strong> the documents it holds,before the date <strong>of</strong> 3 june 2002. It should be emphasized that the public register should alsomention any documents to which Article 4 <strong>of</strong> the Regulation may apply, although thisprovision relates to the exceptions to the principle <strong>of</strong> the right <strong>of</strong> access to all documents heldby the institutions <strong>of</strong> any citizen <strong>of</strong> the Union, or any natural or legal person residing orhaving its registered <strong>of</strong>fice in a Member State. Instead, Article 11 <strong>of</strong> the Regulation statesthat :1. To make citizens' rights under this Regulation effective, each institution shall providepublic access to a register <strong>of</strong> documents. Access to the register should be provided inelectronic form. References to documents shall be recorded in the register withoutdelay.2. For each document the register shall contain a reference number (including, whereapplicable, the interinstitutional reference), the subject matter and/or a short description<strong>of</strong> the content <strong>of</strong> the document and the date on which it was received or drawn up andrecorded in the register. References shall be made in a manner which does notundermine protection <strong>of</strong> the interests in Article 4.Therefore even documents to which access may be denied, in part or in totality, under any <strong>of</strong>the exceptions listed under Article 4, should be registered, and their existence therefore made426 OJ L 145, 31.5.2001, p. 43.427 Neither Article 42 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, nor Regulation n° 1049/2001, guarantee in principle aright to access to the documents held by the other institutions, bodies or agencies <strong>of</strong> the Community. However, inconformity with the Joint Declaration relating to Regulation n° 1049/2001 (OJ C 173, du 27.6.2001), theCommission has proposed amending the Regulations founding the Community bodies to ensure that the guarantees<strong>of</strong> Regulation n° 1049/2001 are also fully respected in this context : see COM(2002)406 final.CFR-CDF.rep.UE.2003.en

138EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSknown to the public. Indeed, this is required if the right to partial access to documents, asformulated under Article 4(6) <strong>of</strong> the Regulation, is to be effectively exercised. This provisionstates that : « If only parts <strong>of</strong> the requested document are covered by any <strong>of</strong> the exceptions,the remaining parts <strong>of</strong> the document shall be released. » However, any request for partialaccess presupposes that the existence <strong>of</strong> the document is known to the applicant 428 . In sum,therefore, may only be excluded from the public register the documents <strong>of</strong> each institutionwhich are considered sensitive, under the definition and according to the modalities <strong>of</strong> Article9 <strong>of</strong> the regulation, which provides that such documents shall be recorded in the register orreleased only with the consent <strong>of</strong> the originator (i.e., the institutions or the agenciesestablished by them, the Member States, third countries or International Organisations)(Article 9(3)) 429 . This is not to say, <strong>of</strong> course, that such documents should be removed fromany form <strong>of</strong> public scrutiny, even exercised indirectly though the representatives <strong>of</strong> thecitizens. Article 9(7) <strong>of</strong> Regulation n° 1049/2001 provides that « The Commission and theCouncil shall inform the European Parliament regarding sensitive documents in accordancewith arrangements agreed between the institutions ». Such an agreement was concludedbetween the Council and the Parliament in the field <strong>of</strong> security and defence policy on 20November 2002 430 .With the exception <strong>of</strong> this latter category <strong>of</strong> documents, all the documents produced within aninstitution should be recorded, without delay, in the register established according to Article11 <strong>of</strong> Regulation 1049/2001. To justify its choice to include in the register which it madeavailable to the public on 3 June 2002 only legislative documents, the Commission refers tothe priority which the Regulation would have given to this category, which the Regulationdefines as « documents drawn up or received in the course <strong>of</strong> procedures for the adoption <strong>of</strong>acts which are legally binding in or for the Member States ». The distinction betweenlegislative and other documents is in fact relevant only with respect to the direct access todocuments (see Article 12(2) <strong>of</strong> the Regulation). It has no role to play in the context <strong>of</strong> Article11, which concerns the establishment <strong>of</strong> the register. The position <strong>of</strong> the Commission, as it isexpressed in its first report on the application <strong>of</strong> Regulation (EC) n° 1049/2001, presented inApril 2003 431 , therefore contradicts the clear wording <strong>of</strong> the Regulation.Article 4(6) <strong>of</strong> the Regulation concerns partial access to documents. It says that « If only parts<strong>of</strong> the requested document are covered by any <strong>of</strong> the exceptions, the remaining parts <strong>of</strong> thedocument shall be released ». However, in practice, it follows from the fact that a document isonly partially accessible that it will not be made directly accessible, although directaccessibility to documents should be the rule according to Article 12(1) <strong>of</strong> the Regulation. Itwould advisable to provide for direct accessibility <strong>of</strong> the documents which are at least partlyaccessible, simply by deleting the portions <strong>of</strong> the document, or the information relating tospecific delegations or persons, which should not be made public, in accordance with theexceptions provided for in Article 4 <strong>of</strong> the Regulation. This would avoid the need for eachperson wishing to have access to a document which is only partially accessible, to have tointroduce a specific request to that effect.428 By way <strong>of</strong> illustration, on 31 December 2002, the public register <strong>of</strong> the Council referred to 2944 documents« P/A », partially accessible, out <strong>of</strong> a total <strong>of</strong> 375154 documents. See the Annual Report <strong>of</strong> the Council on theImplementation <strong>of</strong> Regulation (EC) No 1049/2001 <strong>of</strong> the European Parliament and <strong>of</strong> the Council <strong>of</strong> 30 May 2001regarding public access to European Parliament, Council and Commission documents (adopted on 28 March 2003by the Working Party on Information <strong>of</strong> the Council).429 Thus, in 2002, the Council <strong>of</strong> the European Union had produced 250 sensitive documents, <strong>of</strong> which 77 onlyhave been registered on the public register. All <strong>of</strong> these 77 documents had been classified as « confidentiel »,representing the lowest degree <strong>of</strong> confidentiality in the classification <strong>of</strong> Article 9(1) <strong>of</strong> the Regulation. No « topsecret » document has been produced during that period. 38 « secret » documents have been produced, none <strong>of</strong>which was mentioned in the public register. See the Annual Report <strong>of</strong> the Council on the Implementation <strong>of</strong>Regulation (EC) No 1049/2001, cited above.430 OJ C 298, 30.11.2002, p. 1.431 COM(2003)216 final, <strong>of</strong> 29.4.2003, para. 1.3., p. 6.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003139With a view to make possible the entry into force vis-à-vis the European Community <strong>of</strong> theÅrhus Convention on Access to Information, Public Participation in Decision-making andAccess to Justice in Environmental Matters, the Commission has proposed the adoption <strong>of</strong> aRegulation <strong>of</strong> the European Parliament and <strong>of</strong> the Council on the application <strong>of</strong> the provisions<strong>of</strong> this instrument to EC institutions and bodies 432 . If the proposed Regulation is adopted,Regulation 1049/2001 should in the future be considered to apply to any natural or legalperson, regardless <strong>of</strong> nationality or residency or to whether the legal person has its registeredseat or an effective centre <strong>of</strong> its activities in a Member State, where a request if made foraccess to environmental information. Moreover, a right <strong>of</strong> access to information inenvironmental matters will be invocable, not only vis-à-vis Community « institutions » asdefined by Article 7 EC, but also to any body <strong>of</strong> the Community 433 . Moreover, in accordancewith Article 5 <strong>of</strong> the Aarhus Convention, the collection and dissemination <strong>of</strong> environmentalinformation will conform to more detailed provisions than those currently contained inRegulation 1049/2001 434 . Indeed, one <strong>of</strong> the important aspects <strong>of</strong> this Convention, which goesbeyond the right <strong>of</strong> the public to have access to information which is held by the publicauthorities, concerns the obligation <strong>of</strong> the Parties – thus, also, the institutions and bodies <strong>of</strong>the Community – to collect, organize and disseminate information relating to environmentalmatters, so that public debate becomes possible and is encouraged to be based on objectiveand updated information, and so that these Parties are obliged to monitor their own practiceswith respect to environment, inter alia by their obligation to produce periodic reports on theirperformances. Article 5 <strong>of</strong> the Aarhus Convention reads :1. Each Party shall ensure that:(a) Public authorities possess and update environmental information which is relevantto their functions;(b) Mandatory systems are established so that there is an adequate flow <strong>of</strong> informationto public authorities about proposed and existing activities which may significantlyaffect the environment;(c) In the event <strong>of</strong> any imminent threat to human health or the environment, whethercaused by human activities or due to natural causes, all information which could enablethe public to take measures to prevent or mitigate harm arising from the threat and isheld by a public authority is disseminated immediately and without delay to members<strong>of</strong> the public who may be affected.2. Each Party shall ensure that, within the framework <strong>of</strong> national legislation, the way inwhich public authorities make environmental information available to the public istransparent and that environmental information is effectively accessible, inter alia, by:(a) Providing sufficient information to the public about the type and scope <strong>of</strong>environmental information held by the relevant public authorities, the basic terms andconditions under which such information is made available and accessible, and theprocess by which it can be obtained;(b) Establishing and maintaining practical arrangements, such as:(i) Publicly accessible lists, registers or files;(ii) Requiring <strong>of</strong>ficials to support the public in seeking access to information under thisConvention; and(iii) The identification <strong>of</strong> points <strong>of</strong> contact; and(c) Providing access to the environmental information contained in lists, registers orfiles as referred to in subparagraph (b) (i) above free <strong>of</strong> charge.3. Each Party shall ensure that environmental information progressively becomesavailable in electronic databases which are easily accessible to the public through publictelecommunications <strong>network</strong>s. Information accessible in this form should include:(a) Reports on the state <strong>of</strong> the environment, as referred to in paragraph 4 below;432 COM(2003)622 final, <strong>of</strong> 24.10.2003.433 See Art. 3 <strong>of</strong> the proposed Regulation, cited above.434 See Art. 4 <strong>of</strong> the proposed Regulation, cited above.CFR-CDF.rep.UE.2003.en

140EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS(b) Texts <strong>of</strong> legislation on or relating to the environment;(c) As appropriate, policies, plans and programmes on or relating to the environment,and environmental agreements; and(d) Other information, to the extent that the availability <strong>of</strong> such information in this formwould facilitate the application <strong>of</strong> national law implementing this Convention, providedthat such information is already available in electronic form.4. Each Party shall, at regular intervals not exceeding three or four years, publish anddisseminate a national report on the state <strong>of</strong> the environment, including information onthe quality <strong>of</strong> the environment and information on pressures on the environment.5. Each Party shall take measures within the framework <strong>of</strong> its legislation for the purpose<strong>of</strong> disseminating, inter alia:(a) Legislation and policy documents such as documents on strategies, policies,programmes and action plans relating to the environment, and progress reports on theirimplementation, prepared at various levels <strong>of</strong> government;(b) International treaties, conventions and agreements on environmental issues; and(c) Other significant international documents on environmental issues, as appropriate.6. Each Party shall encourage operators whose activities have a significant impact onthe environment to inform the public regularly <strong>of</strong> the environmental impact <strong>of</strong> theiractivities and products, where appropriate within the framework <strong>of</strong> voluntary ecolabellingor eco-auditing schemes or by other means.7. Each Party shall:(a) Publish the facts and analyses <strong>of</strong> facts which it considers relevant and important inframing major environmental policy proposals;(b) Publish, or otherwise make accessible, available explanatory material on its dealingswith the public in matters falling within the scope <strong>of</strong> this Convention; and(c) Provide in an appropriate form information on the performance <strong>of</strong> public functionsor the provision <strong>of</strong> public services relating to the environment by government at alllevels.8. Each Party shall develop mechanisms with a view to ensuring that sufficient productinformation is made available to the public in a manner which enables consumers tomake informed environmental choices.9. Each Party shall take steps to establish progressively, taking into accountinternational processes where appropriate, a coherent, nationwide system <strong>of</strong> pollutioninventories or registers on a structured, computerized and publicly accessible databasecompiled through standardized reporting. Such a system may include inputs, releasesand transfers <strong>of</strong> a specified range <strong>of</strong> substances and products, including water, energyand resource use, from a specified range <strong>of</strong> activities to environmental media and to onsiteand <strong>of</strong>fsite treatment and disposal sites.10. Nothing in this article may prejudice the right <strong>of</strong> Parties to refuse to disclose certainenvironmental information in accordance with article 4, paragraphs 3 and 4.Article 43. OmbudsmanArticle 43 <strong>of</strong> the Charter reiterates the contents <strong>of</strong> Article 195 § 1, par. 1, EC, also adopted inArticle 2 § 2 <strong>of</strong> the Decision <strong>of</strong> the European Parliament on the regulations and generalconditions governing the performance <strong>of</strong> the Ombudsman’s duties 435 . The “maladministrationin the activities <strong>of</strong> the Community institutions and bodies” that may justify the intervention <strong>of</strong>the European Ombudsman is, however, not defined in this decision. It does not consist solelyin the infringement <strong>of</strong> the right to good administration, as is defined in Article 41 <strong>of</strong> theCharter in relatively open terms 436 . In the exercise <strong>of</strong> his duties, the European Ombudsman has435 Decision 94/262 <strong>of</strong> the European Parliament <strong>of</strong> 9 March 1994 on the regulations and general conditionsgoverning the performance <strong>of</strong> the Ombudsman’s duties, OJ L 113, p. 15.436 See the formulation <strong>of</strong> Article 41 § 2 <strong>of</strong> the Charter (the right to good administration “includes”:…”).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003141had on several occasion to insist on the importance <strong>of</strong> the respect due to the right <strong>of</strong> access todocuments (Article 42 <strong>of</strong> the Charter); he has also attached great importance for theinterpretation <strong>of</strong> this clause to Article 1 <strong>of</strong> the Treaty on European Union, as amended by theTreaty <strong>of</strong> Amsterdam, and which henceforth stipulates that, within the Union, decisions “aretaken as openly as possible and as closely as possible to the citizen”. However, moregenerally, the Ombudsman considers being confronted with a case <strong>of</strong> “maladministration” inthe event <strong>of</strong> an infringement <strong>of</strong> any right that is recognized in the Charter, such as the rightnot to be discriminated against in accordance with Article 21 <strong>of</strong> the Charter (the EuropeanOmbudsman has thus obtained an undertaking from the Commission and the EuropeanParliament to abolish the age limits in competitions for recruitment to those institutions).The European Ombudsman has drafted a Code <strong>of</strong> Good Administrative Behaviour, whichserves as a guide in the handling <strong>of</strong> complaints that are lodged with him. This Code wasapproved in substance by the European Parliament in a Resolution <strong>of</strong> 6 September 2001.However, the European Ombudsman found that, despite the generally favourable reactions <strong>of</strong>the Community institutions, bodies and agencies to the proposal to adopt such a code basedon the model he had drafted, only a small minority <strong>of</strong> institutions, bodies and agencies hadactually adopted such a code and agreed to undertake to comply with it 437 . The adoption <strong>of</strong>such a code, which had to be drawn up as uniformly as possible for all the institutions, bodiesand agencies <strong>of</strong> the European Community, would have the advantage <strong>of</strong> explaining thestandards that should govern the relations between the European administration and thecitizens, which is to the advantage <strong>of</strong> <strong>of</strong>ficials and public alike. It should be emphasized that,with the exception <strong>of</strong> the right <strong>of</strong> access to documents, the elements <strong>of</strong> the right to goodadministration (for example the right to impartial and fair treatment, without unnecessarydelay, <strong>of</strong> the cases, the right <strong>of</strong> every person to be heard before any unfavourable individualdecision is taken against him, the right to be informed <strong>of</strong> the reasons for decisions that aretaken, and the right to be informed about possible remedies) remain relatively imprecise andinaccessible in the absence <strong>of</strong> a codification <strong>of</strong> those elements.Taking note <strong>of</strong> the obstacles to the voluntary adoption <strong>of</strong> the Code <strong>of</strong> Good AdministrativeBehaviour by the Community institutions, bodies and agencies, the European Ombudsmanrecommended the adoption <strong>of</strong> European administrative legislation, applicable to allCommunity institutions and bodies. When this proposal was formulated in April 2000, Article308 EC was identified as an adequate legal basis for the adoption <strong>of</strong> such legislation in theform <strong>of</strong> a Regulation. It is not certain, however, that this legal basis is sufficient, since theguarantee <strong>of</strong> good administration does not figure among the Community objectives 438 . But ajoint declaration by the institutions to comply with a Code <strong>of</strong> Good Administrative Behaviourwould <strong>of</strong>fer, in symbolic terms, the same advantages as the adoption <strong>of</strong> a Regulation. In terms<strong>of</strong> accessibility for the public, the publication <strong>of</strong> this Code in part C <strong>of</strong> the Official Journal,annexed to the joint declaration, would suffice; from the legal point <strong>of</strong> view, such a jointdeclaration would constitute an undertaking from the institutions that may be relied upon, forexample, to support an action for annulment or an action <strong>of</strong> extracontractual liability beforethe Community courts 439 .437 See the Special Report <strong>of</strong> the European Ombudsman to the European Parliament, following an own-initiativeinquiry into the existence and the public accessibility, in the different Community institutions and bodies, <strong>of</strong> aCode <strong>of</strong> Good Administrative Behaviour (OI/1/98/OV), drawn up on the basis <strong>of</strong> information gathered on 1 March2000.438 The Draft Treaty establishing a Constitution for Europe, presented by the European Convention, was meant t<strong>of</strong>ill this gap by incorporating in the Constitution a provision (Article III-304) stating, “the Institutions, bodies andagencies <strong>of</strong> the Union shall have the support <strong>of</strong> an open, efficient and <strong>independent</strong> European administration”, and“European laws shall establish specific provisions to that end”.439 According to the principle <strong>of</strong> patere legem quam ipse fecisti: see CFI, 5 March 1997, WWF UK v. Commission,T-105/95, ECR, p. II-313, recitals 53 to 55.CFR-CDF.rep.UE.2003.en

142EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSThe debates held in the Convention on the Future <strong>of</strong> Europe have highlighted the expediency<strong>of</strong> clarifying the extrajudicial remedies that are open to natural or legal persons in the Union.These remedies have the advantage <strong>of</strong> not being expensive, <strong>of</strong> being subject to formalrequirements that are not very strict, <strong>of</strong> being swift, and <strong>of</strong> alerting the institutions <strong>of</strong> theUnion to certain situations which, in many cases, go beyond the individual case <strong>of</strong> the personmaking use <strong>of</strong> such remedies. An inter-institutional agreement between the Commission, theEuropean Parliament and the European Ombudsman could appropriately define, for thebenefit <strong>of</strong> the public, the respective conditions <strong>of</strong> intervention <strong>of</strong> the European Commission(Article 211 CE), the European Parliament through its Committee on Petitions (Article 44 <strong>of</strong>the Charter <strong>of</strong> Fundamental Rights, Article 21 par. 1 EC and Article 194 EC), and theOmbudsman (Article 43 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, Article 21 par. 2 EC andArticle 195 EC), in the handling <strong>of</strong> requests addressed to those institutions in the form <strong>of</strong>petitions or complaints. In order to maximize one <strong>of</strong> the functions <strong>of</strong> these mechanisms,which is to alert the Union institutions to certain general situations calling for initiatives ontheir part, it may be useful to consider calling upon the EU Network <strong>of</strong> Independent Expertson Fundamental Rights, or the future Human Rights Agency, to prepare opinions on theinitiatives that might be solicited from the institutions by complaints or petitions that highlightdifficulties associated with the implementation <strong>of</strong> the rights enshrined in the Charter <strong>of</strong>Fundamental Rights <strong>of</strong> the European Union.Article 44. Right to petitionThe latest information on the exercise <strong>of</strong> the right to petition is contained in the report drawnup in the European Parliament by Mrs Laura González Álvarez 440 . It is not necessary here todiscuss the quantitative 441 and qualitative data that emerge from this document. On the otherhand, it should be underlined that this report reiterates the observation made above inconnection with the European Ombudsman that there should be a better co-ordinationbetween the European Commission, which receives complaints from individuals who feel thatCommunity law has been violated with respect to them, the European Ombudsman, and theCommittee on Petitions <strong>of</strong> the European Parliament. An improvement <strong>of</strong> this co-ordinationcould justify a review <strong>of</strong> the inter-institutional agreement <strong>of</strong> 12 April 1989. It could becoupled with a definition <strong>of</strong> the tasks <strong>of</strong> a Human Rights Agency in the European Union,whose deliberations and proposals should be inspired by the content <strong>of</strong> the complaints orpetitions that are lodged by European citizens or persons residing in the European Union,where they are concerned with structural problems going beyond the case <strong>of</strong> the individualpetitioner. Reference is made on this point to the Introduction to the present report.Article 45. Freedom <strong>of</strong> movement and <strong>of</strong> residenceCitizens <strong>of</strong> the European UnionAfter having received the opinion <strong>of</strong> the European Parliament as expressed in a resolutionadopted on 11 February 2003, which suggested a number <strong>of</strong> amendments to the initialproposal for a European Parliament and Council Directive on the right <strong>of</strong> citizens <strong>of</strong> theUnion and their family members to move and reside freely within the territory <strong>of</strong> the MemberStates 442 , the Commission submitted an Amended proposal for this Directive 443 . This initiative440 A5-0239/2003, 19/6/2003.441 The report reveals that, for the period under scrutiny (from 12 March 2002 to 10 March 2003), the Committeeon Petitions received 1514 petitions, compared with 1283 the previous year. The Committee declared 642 petitionsadmissible and 202 inadmissible (compared with 744 and 293 respectively the previous year); the examination <strong>of</strong>573 petitions has been completed (compared with 506 the previous year). 1080 petitions are still underexamination, compared with 1041 the previous year.442 COM(2001) 257 final, <strong>of</strong> 23/5/2001.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003143is justified by the need to remedy the sectorialized, piecemeal approach which has beencharacteristic <strong>of</strong> the Community legislation in this domain, to facilitate, by providing legalclarity, the exercise <strong>of</strong> the right <strong>of</strong> free movement and residence guaranteed by Article 18 EC.The proposal has carefully taken into account a number <strong>of</strong> fundamental rights requirements,for instance by organising the suspensive effect <strong>of</strong> the appeal against the removal decision(Article 29(3)), or by providing, in accordance with the case-law <strong>of</strong> the European Court <strong>of</strong>Justice based on Articles 12 and 17 EC and (for what concerns social and medical assistance)with the European Social Charter, that « Union citizens residing within the territory <strong>of</strong> thehost Member State shall enjoy equal treatment with the nationals <strong>of</strong> that State in areascovered by the Treaty » (Article 21(1)).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights has already examinedspecific aspects <strong>of</strong> the proposed directive, at different stages <strong>of</strong> its elaboration. Therefore ageneral commentary is not required in this Report. It will be useful, however, to make twoobservations on the proposal as amended by the Commission in April 2003.The notion <strong>of</strong> « family members »The Amended proposal contains a definition <strong>of</strong> the « family member » <strong>of</strong> the citizen <strong>of</strong> theUnion which refers to the « spouse », to the « partner to whom the Union citizen is linked byregistered partnership or with whom he/she has a duly attested durable relationship, if thelegislation <strong>of</strong> the host Member State recognises the situation <strong>of</strong> unmarried couples, inaccordance with the conditions laid down in any such legislation », and to the directdescendants and direct relatives in the ascending line <strong>of</strong> these first two categories (Article2(2)). Except for the reference to a registered partnership, which the Commission agreed toinsert, the Commission has thus chosen to reject the proposal <strong>of</strong> the European Parliament toamend this clause so as to recognise as a « family member » the spouse <strong>of</strong> the same sex in thesame way as the spouse <strong>of</strong> a different sex, or the registered partner in accordance with thelegislation <strong>of</strong> the Member State <strong>of</strong> origin, and nonmarried partners in accordance with thelegislation or practice <strong>of</strong> the host or home Member State. In fact, the Commission goes n<strong>of</strong>urther than what is required by the case-law <strong>of</strong> the European Court <strong>of</strong> Justice on this issue 444 .The result <strong>of</strong> this choice is that the freedom <strong>of</strong> movement and residence <strong>of</strong> citizens <strong>of</strong> theUnion who are homosexuals will be less effective than the same freedom <strong>of</strong> other citizens <strong>of</strong>the Union. In many cases, citizens living in a durable homosexual relationship will be hesitateto disrupt their family life by seeking employment or taking up a job opportunity in anotherMember State. The result is also that Member States may decide that the couples marriedunder the Belgian or Dutch civil law may or may not be recognized for the purposes <strong>of</strong> familyr<strong>eu</strong>nification, on the basis <strong>of</strong> whether these are opposite-sex couples or same-sex couples,without violating the Directive. Because it entails such consequences, the solution proposedshould be subjected to the strictest scrutiny. In its Opinion n° 1-2003 delivered on 10 April2003, the EU Network <strong>of</strong> Independent Experts had considered :[…], the European Commission questioned the Network <strong>of</strong> Independent Experts onthe matter <strong>of</strong> knowing whether the non-recognition <strong>of</strong> same-sex marriages andregistered partnerships on the basis <strong>of</strong> the law <strong>of</strong> the Member State <strong>of</strong> origin iscontrary to the requirements <strong>of</strong> the European Convention on Human Rights. Articles 8and 14 <strong>of</strong> that instrument are mentioned in the request for an opinion.The reply to this […] question must be a qualified one. It suggests that account mustalso be taken <strong>of</strong> Article 12 <strong>of</strong> the European Convention on Human Rights, whichguarantees the right to marry.443 COM(2003)199 final, <strong>of</strong> 15/4/2003.444 ECJ, 17 April 1986, Reed, C-59/85 ECR 1283.CFR-CDF.rep.UE.2003.en

144EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSFor the purposes <strong>of</strong> the amended proposal for a Directive <strong>of</strong> the European Parliamentand <strong>of</strong> the Council on the right <strong>of</strong> citizens <strong>of</strong> the Union and their family members tomove and reside freely within the territory <strong>of</strong> the Member States, the Commissioncontemplated - at the moment when the present opinion was sought - defining “familymembers” as comprising a) the “spouse”, and b) “the partner, to whom the Unioncitizen is linked by a registered partnership or by a duly attested stable relationship, ifthe legislation <strong>of</strong> the host Member State recognizes the situation <strong>of</strong> unmarried couplesand in accordance with the conditions laid down in such legislation” (proposal for anew Article 2 (Definitions), par. 2).In its opinion <strong>of</strong> February 2003, adopted on the recommendation <strong>of</strong> the Committee onCitizens’ Freedoms and Rights, Justice and Home Affairs (rapport<strong>eu</strong>r G. Santini), theEuropean Parliament proposed three amendments to this Article 2 par. 2 <strong>of</strong> theproposal for a Directive. Firstly, it proposed an amendment <strong>of</strong> Article 2 par. 2 a), tomake this clause refer to the spouse, “irrespective <strong>of</strong> his or her sex, in accordance withthe applicable national legislation”. Secondly, it proposed the insertion <strong>of</strong> an Article 2par. 2, a b), in order to include among “family members” “the registered partner,irrespective <strong>of</strong> his or her sex, in accordance with the applicable national legislation”.Thirdly, it proposed a rewording <strong>of</strong> Article 2 par. 2 b) <strong>of</strong> the proposal for a Directivein order to make reference to “the unmarried partner, irrespective <strong>of</strong> his or her sex,with whom the applicant has a stable relationship, if the legislation or practice <strong>of</strong> thehost Member State and/or Member State <strong>of</strong> origin treats unmarried couples asequivalent to married couples and in accordance with the conditions laid down in anysuch legislation”.According to the request for an opinion which the Commission addressed to theNetwork <strong>of</strong> Experts, the first proposal was not retained, since the Court <strong>of</strong> Justice <strong>of</strong>the European Communities “stated in its judgment in the case <strong>of</strong> D and Kingdom <strong>of</strong>Sweden v. the Council that the term “marriage”, according to the definition generallyaccepted by the Member States, designates a union between persons <strong>of</strong> the oppositesex.”This judgment, however, does not have the scope assigned to it by the request for anopinion. At issue in the case <strong>of</strong> D. and Kingdom <strong>of</strong> Sweden v. the Council 445 was notthe marriage between persons <strong>of</strong> the same sex, but the registered partnershipconcluded in accordance with the Swedish law <strong>of</strong> 23 June 1994. If the registeredpartnership does indeed produce, according to the Swedish law, “the same legaleffects as marriage, save in the exceptions that are provided (...)”, it no less remains aninstitution distinct from marriage as such. The Court did not resolve the question <strong>of</strong>knowing whether the concept <strong>of</strong> “married <strong>of</strong>ficial” could have extended to an <strong>of</strong>ficialmarried to a person <strong>of</strong> the same sex, assuming - as is currently the case in theNetherlands and Belgium - that this possibility would exist by virtue <strong>of</strong> the lawgoverning the civil status <strong>of</strong> the person concerned.It should also be noted that, immediately after having asserted that “It is not inquestion that, according to the definition generally accepted by the Member States, theterm marriage means a union between two persons <strong>of</strong> the opposite sex” (Recital 34),[the judgment D. and Kingdom <strong>of</strong> Sweden v. Council] adds, “Since 1989 an increasingnumber <strong>of</strong> Member States have introduced, alongside marriage, statutoryarrangements granting legal recognition to various forms <strong>of</strong> union between partners <strong>of</strong>the same sex or <strong>of</strong> the opposite sex and conferring on such unions certain effectswhich, both between the partners and as regards third parties, are the same as or445 ECJ, 31 May 2001, D. v. Council <strong>of</strong> the European Union, joined cases C-122/99 P and C-125/99 P, ECR I-4319.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003145comparable to those <strong>of</strong> marriage” (Recital 35). The Court only refuses to treat theseforms <strong>of</strong> partnership as equivalent to marriage because, in its opinion, “apart fromtheir great diversity, such arrangements for registering relationships between couplesnot previously recognised in law are regarded in the Member States concerned asbeing distinct from marriage” (Recital 36). In the case <strong>of</strong> D. and Kingdom <strong>of</strong> Swedenv. Council, which constituted the final argument for refusing to treat registeredpartnerships according to Swedish law as equivalent to marriage, we have two legalsituations that remain distinct (see Recital 37). We cannot foresee what the position <strong>of</strong>the Court would have been if, on the contrary, it was faced with an identical legalsituation, simply extended to same-sex couples.It should be remembered that, in a letter <strong>of</strong> 15 May 2001, in which he based himselfon Article 1 b <strong>of</strong> the Staff Regulations and Article 9 <strong>of</strong> the Charter <strong>of</strong> FundamentalRights, the Director-General for Personnel and Administration considered that themarriage <strong>of</strong> an <strong>of</strong>ficial recognized under the Dutch Civil Code as amended since 1April 2001 should be assimilated to any other marriage recognized in a Member State.On 15 October 2001, in other words, subsequent to the judgment in the case <strong>of</strong> D. andKingdom <strong>of</strong> Sweden v. the Council, the Commission confirmed this assimilation 446 .Three additional reasons lead us to think that the judgment in the case <strong>of</strong> D. andKingdom <strong>of</strong> Sweden v. the Council <strong>of</strong> 31 May 2001 cannot be relied upon in order toreject an extension <strong>of</strong> the concept <strong>of</strong> “spouse” used by the Community legislator forthe purposes <strong>of</strong> an instrument aimed at facilitating the right <strong>of</strong> citizens <strong>of</strong> the Unionand their family members to move and reside freely within the territory <strong>of</strong> theMember States.Firstly, the Court <strong>of</strong> Justice <strong>of</strong> the European Communities refuses in this judgment tointerpret contra legem the terms <strong>of</strong> Annex VII to the Staff Regulations <strong>of</strong> theEuropean Communities, but does not rule out that the Community legislator maychoose such an option (the developments observed by the Community judicature donot allow the latter to “interpret the Staff Regulations in such a way that legalsituations distinct from marriage are treated in the same way as marriage. (...) Onlythe legislature can, where appropriate, adopt measures to alter that situation (...)”(Recitals 37 and 38)). Indeed, the fact that the term “spouse” cannot be extended bycase-law interpretation to an unmarried partner in a homosexual relationship - as theCourt found in its judgment <strong>of</strong> 31 May 2001 - does not mean that the concept <strong>of</strong>spouse cannot be extended by the Community legislator to the spouse <strong>of</strong> the same sex,where it deems it necessary to incorporate such a specification in an instrument <strong>of</strong>secondary Community law […].Secondly, in the D. and Kingdom <strong>of</strong> Sweden judgment <strong>of</strong> 31 May 2001, as already inthe Reed judgment <strong>of</strong> 17 April 1986, the Court <strong>of</strong> Justice <strong>of</strong> the EuropeanCommunities seems particularly careful to keep its case-law in line with thelegislative developments which it observes in the Member States. In the Reedjudgment, it is only “in the absence <strong>of</strong> any indication <strong>of</strong> a general social developmentwhich would justify a broad construction” <strong>of</strong> the term “spouse” in Article 10 <strong>of</strong>Regulation 1612/68 that the Court holds that this term refers to a marital relationshiponly (Recital 15). In the D. and Kingdom <strong>of</strong> Sweden judgment <strong>of</strong> 31 May 2001, theCourt only ruled out that the registered partnership under Swedish law may beassimilated to marriage after having noted, “The existing situation in the MemberStates (…) as regards recognition <strong>of</strong> partnerships between persons <strong>of</strong> the same sex or<strong>of</strong> the opposite sex reflects a great diversity <strong>of</strong> laws and the absence <strong>of</strong> any general446 See the reply <strong>of</strong> Commissioner Vitorino to written question E-3261/01 submitted by J. Swiebel on 23November 2001, OJ C 28 E <strong>of</strong> 6/2/2003, p. 3; also the reply to Mrs Buitenweg, OJ C 93 E <strong>of</strong> 18/4/2002, p. 131.CFR-CDF.rep.UE.2003.en

146EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSassimilation <strong>of</strong> marriage and other forms <strong>of</strong> statutory union” (Recital 50). The openingup <strong>of</strong> marriage to same-sex couples in Dutch and Belgian law might lead the Court toalter its point <strong>of</strong> view in the future.Thirdly, while the D. and Kingdom <strong>of</strong> Sweden case concerned the application for ahousehold allowance filed by a Council <strong>of</strong>ficial, the proposal for a Directive <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council on the right <strong>of</strong> citizens <strong>of</strong> the Union and theirfamily members to move and reside freely within the territory <strong>of</strong> the Member States isconcerned with the effective freedom <strong>of</strong> movement for citizens <strong>of</strong> the Union and theirfamily members, an effectiveness which would reinforce the extension <strong>of</strong> the term“spouse” to spouses <strong>of</strong> the same sex, there where a marriage between persons <strong>of</strong> thesame sex has been validly concluded. It is obvious that the impossibility for a citizen<strong>of</strong> the Union to be joined by his spouse in the Member State where he has chosen totake up residence for the sole reason that the spouse is <strong>of</strong> the same sex does notcontribute to the effective freedom <strong>of</strong> movement and residence for citizens <strong>of</strong> theUnion. It should also be noted that, in the D. and Kingdom <strong>of</strong> Sweden case, the Court<strong>of</strong> Justice <strong>of</strong> the European Communities found that the plea introduced by theapplicant in his appeal, namely that the refusal to recognize registered partnershipsconcluded under Swedish law as being equivalent to marriage constituted an obstacleto the freedom <strong>of</strong> movement for workers, had to be judged inadmissible, since thiswas a fresh plea introduced for the first time in the appeal. The Court <strong>of</strong> Justice <strong>of</strong> theEuropean Communities therefore did not rule on the value <strong>of</strong> this plea.Generally speaking, it should be observed that, in the context <strong>of</strong> the elaboration <strong>of</strong> anew Community instrument bringing together the existing instruments relating to theright <strong>of</strong> citizens <strong>of</strong> the Union and their family members to move and reside freelywithin the territory <strong>of</strong> the Member States, the Community legislator has two options.Either, basing itself on the requirement <strong>of</strong> non-discrimination on grounds <strong>of</strong>nationality (Article 12 EC), it provides that the right to family r<strong>eu</strong>nification will begranted to - married or unmarried - same-sex or opposite-sex partners, where the hostMember State recognizes forms <strong>of</strong> cohabitation other than marriage, or, basing itselfrather on the concept <strong>of</strong> mutual recognition, it provides that the right to familyr<strong>eu</strong>nification will be granted to - married or unmarried - same-sex or opposite-sexpartners, where the relationship between the partners is recognized in the MemberState <strong>of</strong> origin. Choosing the first option would lead to paradoxical situations: aSwedish woman, linked by a registered partnership to another Swedish woman inaccordance with the law <strong>of</strong> 1994, cannot rely upon this partnership to be joined inItaly by her partner, unless this State recognizes the situation <strong>of</strong> unmarried couples.Conversely, however, two Italian men, living together in a stable relationship, can relyon the fact that Sweden recognizes unmarried couples through the institution <strong>of</strong>registered partnerships in order to benefit, in Sweden, from the right to familyr<strong>eu</strong>nification. Moreover, the second solution is more conducive to an effectivefreedom <strong>of</strong> movement and residence […].It should also be pointed out that the solution that consists <strong>of</strong> making the recognition<strong>of</strong> the right <strong>of</strong> a citizen <strong>of</strong> the Union to be joined in another Member State by a familymember who is not his “spouse” subject to the recognition in the host Member State<strong>of</strong> the situation <strong>of</strong> de facto or de jure couples may in the long term pose problems <strong>of</strong>compatibility with the requirements <strong>of</strong> fundamental rights.In the implementation <strong>of</strong> Article 18 EC, the Community legislator is obliged torespect the fundamental rights, namely those enumerated in the Charter <strong>of</strong>Fundamental Rights <strong>of</strong> the European Union. Those rights include the right to respectfor private life (Article 7), the right to non-discrimination, notably on grounds <strong>of</strong>sexual orientation (Article 21 § 1), and the right to marry (Article 9).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003147The European Commission <strong>of</strong> Human Rights acknowledged that the removal <strong>of</strong> aforeign national from the territory <strong>of</strong> a State party to the European Convention onHuman Rights may constitute an infringement <strong>of</strong> the private life <strong>of</strong> the personconcerned when the latter has established a relationship in that State with a person <strong>of</strong>the same sex and the removal would lead to the break-up <strong>of</strong> that relationship 447 . As aresult, by not allowing a stable relationship between two partners to be maintained inthe host Member State after one <strong>of</strong> the partners has exercised his right to freedom <strong>of</strong>movement or residence, the legislator imposes a restriction on this freedom, thecompatibility <strong>of</strong> which with the requirements <strong>of</strong> private life 448 could be called intoquestion.Unlike heterosexuals, homosexuals cannot legally marry, unless they have Belgian orDutch nationality or reside in the Netherlands. Acknowledging ex <strong>of</strong>ficio that a“spouse” is a family member, yet making the recognition <strong>of</strong> an unmarried partner as afamily member subject to the condition that the host Member State recognizes thesituation <strong>of</strong> de facto or de jure couples, thus leads to putting European Union citizens<strong>of</strong> a specific sexual orientation at an obvious disadvantage. It is true that such adifference in treatment between marriage and other forms <strong>of</strong> partnership does notconstitute direct discrimination on grounds <strong>of</strong> sexual orientation: the ex <strong>of</strong>ficiorecognition <strong>of</strong> “spouse” as family member for the purposes <strong>of</strong> family r<strong>eu</strong>nification isto the detriment not only <strong>of</strong> a homosexual person who has no access to the institution<strong>of</strong> marriage, but also <strong>of</strong> a person who has established a non-matrimonial relationshipwith a partner <strong>of</strong> the opposite sex 449 . We need to ask ourselves whether such asituation, which might constitute a form <strong>of</strong> indirect discrimination towardshomosexual persons, does not call for a particularly strict justification, which goesbeyond the mere objective <strong>of</strong> protecting the traditional family.Article 12 <strong>of</strong> the European Convention on Human Rights states, “Men and women <strong>of</strong>marriageable age have the right to marry and to found a family, according to thenational laws governing the exercise <strong>of</strong> this right”. In a judgment <strong>of</strong> 11 July 2002,faced with the situation <strong>of</strong> a male-to-female transsexual who was prevented frommarrying a man with whom she had a relationship, the European Court <strong>of</strong> HumanRights interpreted this provision as securing “the fundamental right <strong>of</strong> a man andwoman to marry and to found a family. The second aspect is not however a condition<strong>of</strong> the first and the inability <strong>of</strong> any couple to conceive or parent a child cannot beregarded as per se removing their right to enjoy the first limb <strong>of</strong> this provision. Theexercise <strong>of</strong> the right to marry gives rise to social, personal and legal consequences. Itis subject to the national laws <strong>of</strong> the Contracting States but the limitations thereby447 European Commission <strong>of</strong> Human Rights, application n°9369/81, X and Y v. United Kingdom, decision <strong>of</strong> 3 May1983, D.R., 32, p. 220; application n°12513/86, W.J. and D.P. v. United Kingdom, decision <strong>of</strong> 13 July 1987;application n°16106/90, B. v. United Kingdom, decision <strong>of</strong> 10 February 1990, D.R., 64, p. 278; applicationn°14753/89, C. and L.M., decision <strong>of</strong> 9 October 1989.448 The requirements <strong>of</strong> the right to respect for family life may also need to be taken into account, since theEuropean Court <strong>of</strong> Human Rights agrees that this notion also encompasses “de facto” family life (Eur. Ct. H.R.,Elsholz v. Germany (application no. 25735/94), judgment <strong>of</strong> 13 July 2000, § 43), notably in case <strong>of</strong> cohabitation(Eur. Ct. H.R., Saucedo Gomez v. Spain (application n° 37784/97), decision <strong>of</strong> 26 January 1999 (cohabitationlasting eighteen years but without the consequences recognized in marriage attached to it)). So far, however, theEuropean Court <strong>of</strong> Human Rights has not yet extended the notion <strong>of</strong> family life to same-sex couples.449 Attention should be drawn, however, to the fact that, since in most Member States marriage is not open tosame-sex couples, persons <strong>of</strong> homosexual orientation are the only ones to suffer the consequences <strong>of</strong> the privilegedregime awarded to marriage. In the area <strong>of</strong> equal treatment between men and women, the fact that only the lattercan become pregnant sufficed for the difference in treatment based on the state <strong>of</strong> pregnancy to be considered bythe Court <strong>of</strong> Justice <strong>of</strong> the European Communities as direct discrimination on grounds <strong>of</strong> sex (ECJ, 8 November1990, Dekker, C-177/88, ECR I-3941, Recital 12). From this point <strong>of</strong> view, the impossibility for same-sex couplesto have access to an institution which grants them - notably in terms <strong>of</strong> the freedom <strong>of</strong> movement and residenceguaranteed to citizens <strong>of</strong> the Union by Article 18 EC - identical rights to those enjoyed by opposite-sex couples,could be considered as constituting direct discrimination against those persons on grounds <strong>of</strong> sexual orientation.CFR-CDF.rep.UE.2003.en

148EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSintroduced must not restrict or reduce the right in such a way or to such an extent thatthe very essence <strong>of</strong> the right is impaired” 450 . Moreover, by attaching particularimportance to the choice made by the drafters <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights <strong>of</strong>the European Union <strong>of</strong> departing from the wording <strong>of</strong> Article 12 <strong>of</strong> the Conventionwhen they drafted Article 9 <strong>of</strong> the Charter (the absence <strong>of</strong> any reference to “men andwomen” was, according to the Court, “no doubt deliberate”), the Court concluded that“the very essence <strong>of</strong> the applicant’s right to marry has been infringed”.The significance <strong>of</strong> the latter judgment should not be underestimated. It is prematureto conclude from the judgment that the European Court is prepared to derive fromArticle 12 <strong>of</strong> the European Convention on Human Rights an obligation for the Statesparties to the Convention to open the institution <strong>of</strong> marriage to same-sex couples.However, by authorizing Member States to refuse to recognize as “spouses” partnerswho in another Member State married a citizen <strong>of</strong> the Union who exercised his or herright to freedom <strong>of</strong> movement and residence in accordance with Community law, theCommunity legislator cannot allow Member States to use this freedom to infringe thevery essence <strong>of</strong> the right to marry. Maintaining the respect due to the fundamentalrights is always implicit in the use which the national authorities may make [<strong>of</strong> theirmargin <strong>of</strong> appreciation in the adoption <strong>of</strong> measures falling] within the scope <strong>of</strong>Community law. We may ask ourselves whether, by not recognizing a marriage thathas been validly concluded in another Member State, the host Member State does notinfringe Article 12 <strong>of</strong> the Convention, the significance <strong>of</strong> which would no longeramount to guaranteeing the right <strong>of</strong> men and women to marry in order to found afamily.The Amended Proposal for a Directive on the right <strong>of</strong> citizens <strong>of</strong> the Union and their familymembers to move and reside freely within the territory <strong>of</strong> the Member States does not addressthese arguments. However contested the interpretation <strong>of</strong> the judgment <strong>of</strong> the European Court<strong>of</strong> Justice <strong>of</strong> 31 May 2001 may be, it is however in any case certain that this judgment doesnot prohibit the Community legislator from following upon the suggestion <strong>of</strong> the EuropeanParliament, concerning the definition <strong>of</strong> « members <strong>of</strong> the family » in the text underdiscussion. Considering the importance <strong>of</strong> the stakes involved for homosexual persons, amore complete justification could have been expected from the Commission. The AmendedProposal suggests that it would be acceptable for a Member State to make a distinctionbetween heterosexual marriage and homosexual marriage, even where the « marriage » isintended as a single institution by the State <strong>of</strong> origin (in practice, today, Belgium and theNetherlands) – which distinguishes this from the situation <strong>of</strong> D. and Kingdom <strong>of</strong> Sweden v.Council. It will be recalled in this regard that, according to the European Court <strong>of</strong> HumanRights, “Just like differences based on sex, differences based on sexual orientation requireparticularly serious reasons by way <strong>of</strong> justification » 451 .Article 4 (Nondiscrimination) <strong>of</strong> the amended proposal says that « Member States shall giveeffect to the provisions <strong>of</strong> this Directive without discrimination between those entitledther<strong>eu</strong>nder on grounds <strong>of</strong> sex, sexual identity, race, colour, ethnic or social origin, geneticcharacteristics, language, religion or beliefs, political or other opinions, membership <strong>of</strong> anethnic minority, property, birth, disability, age or sexual orientation ». Moreover, Article 34(More favourable national provisions) states that the Member States may adopt or maintainlaws, regulations or administrative provisions more favourable to the persons covered by thisDirective. Member States are encouraged to use this opportunity to fully implement the right450 Eur. Ct. H.R. (GC), Christine Goodwin v. United Kingdom (application n° 28957/95), judgment <strong>of</strong> 11 July2002, §§ 98-99.451 Eur. Ct. HR (1 st section), Karner v. Austria judgment <strong>of</strong> 24 July 2003, Appl. no. 40016/98, § 37, citing thejudgments <strong>of</strong> the Court in Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, EHCR1999-VI ; and S.L. v. Austria, no. 45330/99, § 37, 9 January 2003.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003149<strong>of</strong> the citizens <strong>of</strong> the Union to move and reside freely in the Member States, withoutdiscrimination on the grounds <strong>of</strong> their sexual orientation.Territorial scope <strong>of</strong> the right <strong>of</strong> residenceArticle 19 (Territorial scope) <strong>of</strong> the amended proposal submitted by the Commission statesthat « The right <strong>of</strong> residence and the right <strong>of</strong> permanent residence shall cover the wholeterritory <strong>of</strong> the Member State. Member States may impose territorial restrictions on the right<strong>of</strong> residence and the right <strong>of</strong> permanent residence only where the same restrictions apply totheir own nationals ». It should be asked whether, where nationals <strong>of</strong> other Member States areliable to banishment or prohibition <strong>of</strong> residence, the less rigorous measure consisting in theimposition <strong>of</strong> territorial restrictions on the right <strong>of</strong> residence should not be preferred, inconformity with the principle according to which the restrictions to the fundamental right <strong>of</strong>the citizen <strong>of</strong> the Union to move and reside freely on the territory <strong>of</strong> the Member Statesshould be kept to a minimum. Indeed, Article 18 EC guarantees to every citizen <strong>of</strong> the Unionthe right to move and reside freely within the territory <strong>of</strong> the Member States, subject to thelimitations and conditions laid down in this Treaty and by the measures adopted to give iteffect. Among these limitations, are those mentioned in Article 39(3) EC and which CouncilDirective 64/221/EEC <strong>of</strong> 25 February 1964 on the co-ordination <strong>of</strong> special measuresconcerning the movement and residence <strong>of</strong> foreign nationals which are justified on grounds <strong>of</strong>public policy, public security or public health 452 has circumcribed in closer detail 453 . The case<strong>of</strong> Oteiza Olazabal 454 , which is based on those provisions, bears a close relationship to thequestion raised with respect to Article 19 <strong>of</strong> the amended proposal for a Directive <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council on the right <strong>of</strong> citizens <strong>of</strong> the Union and their familymembers to move and reside freely within the territory <strong>of</strong> the Member States.The case concerned the situation <strong>of</strong> a Spanish national <strong>of</strong> Basque origin who had beensentenced in France to 18 months' imprisonment and to a four-year ban on residence forconspiracy to disturb public order (ordre public) by intimidation or terror, and was suspected<strong>of</strong> links with the ETA. The European Court <strong>of</strong> Justice considers that the prohibition imposedon Mr Oteiza Olazabal to move in 31 French departments – restrictions on his freedom <strong>of</strong>movement justified by the need to keep him at distance from his contacts in Spain – could bejustified, after the French authorities had made the choice not to expel him to Spain. TheCourt notes expressly that “ the referring court starts from the premiss that reasons <strong>of</strong> publicorder preclude the residence <strong>of</strong> the migrant worker in question on part <strong>of</strong> the territory, andthat, without the possibility <strong>of</strong> imposing a measure prohibiting residence in that part <strong>of</strong> theterritory, they could justify a measure prohibiting residence in the whole <strong>of</strong> the territory »(Recital 36). It is therefore only where a more severe measure – expulsion for reasons <strong>of</strong>public order – would be acceptable that a less rigorous measure – the restriction imposed onthe freedom <strong>of</strong> movement on the national territory – may be accepted. The Court considersthat « In situations where nationals <strong>of</strong> other Member States are liable to banishment orprohibition <strong>of</strong> residence, they are also capable <strong>of</strong> being subject to less severe measuresconsisting <strong>of</strong> partial restrictions on their right <strong>of</strong> residence, justified on grounds <strong>of</strong> publicpolicy » (Recital 41) ; although it is not necessary that identical measures be capable <strong>of</strong> beingapplied by the Member State in question to its own nationals, it is moreover required that« the conduct which the Member State concerned wishes to prevent gives rise, in the case <strong>of</strong>its own nationals, to punitive measures or other genuine and effective measures designed tocombat it » (Recital 45).452 OJ, English Special Edition 1963-1964, p. 117.453 See, now, Article 25 <strong>of</strong> the amended proposal for a Directive <strong>of</strong> the European Parliament and <strong>of</strong> the Council onthe right <strong>of</strong> citizens <strong>of</strong> the Union and their family members to move and reside freely within the territory <strong>of</strong> theMember States.454 ECJ, 26 November 2002, Oteiza Olazabal, C-100/01, ECR I-10981. This judgment has not been examined inthe previous report by the EU Network <strong>of</strong> Independent Experts in Fundamental Rights.CFR-CDF.rep.UE.2003.en

150EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSIn the future, it should therefore be asked whether, in conformity with the principle <strong>of</strong>proportionality which applies to any restrictions imposed on the fundamental freedom tomove (Recital 43 <strong>of</strong> the judgment), a Member State will not be required to resort to the leastrestrictive measure consisting in a limitation on the right to move within the national territory,rather than to the extreme measure <strong>of</strong> expulsion, where the former measure suffices to attainthe objective pursued.Third country nationalsIn accordance with the powers that are assigned to the Community by Article 62 §§ 1 and 3and by Article 63 § 4 EC, Article 45 § 2 <strong>of</strong> the Charter provides, “Freedom <strong>of</strong> movement andresidence may be granted (…) to nationals <strong>of</strong> third countries legally resident in the territory <strong>of</strong>a Member State”. Submitted in 2001 455 , the proposal for a Council Directive concerning thestatus <strong>of</strong> third-country nationals who are long-term residents was agreed upon in the Councilon 22 September 2003. Two observations need to be made on the adopted text.Individuals qualifying for status <strong>of</strong> long-term residentThe initial proposal <strong>of</strong> the Commission was that the status <strong>of</strong> long-term resident would beavailable to « all third-country nationals who reside legally in the territory <strong>of</strong> a Member Stateon a long-term basis. This category covers refugees with recognised status under the GenevaConvention and third-country nationals who are members <strong>of</strong> the family <strong>of</strong> a citizen <strong>of</strong> theUnion. The only excluded categories are those who are not intending to actually settle, inparticular persons resident in order to study or to engage in a seasonal occupation and thoseenjoying temporary protection. Lastly, persons enjoying a subsidiary or additional form <strong>of</strong>protection are not within the scope <strong>of</strong> the proposal as these concepts have not beenharmonised in the Community » 456 . The latest version <strong>of</strong> the text however excludes refugeesfrom the status which the directive seeks to open. Although favored by the EuropeanParliament 457 , this solution is hardly satisfactory, as it creates the risk <strong>of</strong> two differentcategories <strong>of</strong> third-country nationals who are long-term residents in the EU, and as it addsunnecessary complexity.Enhanced protection against expulsion for long-term residentsThe proposal for a Directive concerning the status <strong>of</strong> third-country nationals who are longtermresidents provides that Member States may take a decision on expulsion when the personconcerned constitutes an actual and sufficiently serious threat to public order or nationalsecurity, which expressly excludes all economic considerations, and such decision must betaken with consideration for the person, that is to say, taking into account all aspects <strong>of</strong> hispersonal situation. The foreign national has the right to appeal to the courts. It is regrettablethat the proposal for a Directive does not clearly assert, as had been initially planned, that anappeal to the courts against an expulsion decision has a suspensive effect. Bearing in mindthat, if the person is a long-term resident, the risk <strong>of</strong> infringement <strong>of</strong> the right to respect forprivate and family life is clearly inherent in such a decision, the decision should only be takenif there is a guarantee <strong>of</strong> effective appeal to a competent national authority. It emerges fromthe case-law <strong>of</strong> the European Court <strong>of</strong> Human Rights that such an appeal must have asuspensive effect if it is to have the desired effectiveness 458 . The reference to the subsidiarity455 Proposal for a Council Directive concerning the status <strong>of</strong> third-country nationals who are long-term residents,COM(2001)127 final <strong>of</strong> 13.3.2001.456 COM(2001)127 final, par. 5.3.457 Report on the proposal for a Council Directive concerning the status <strong>of</strong> third-country nationals who are longtermresidents (COM(2001)127 – C5-0250/2001 – 2001/0074(CNS)) (A5-0436/2001) (rapp. Baroness Ludford).458 Eur. Ct. H.R., Jabari v. Turkey, judgment <strong>of</strong> 11 July 2000, application n° 40035/98, § 50; Eur. Ct. H.R. (3 rdsection), Conka v. Belgium, judgment <strong>of</strong> 5 February 2002, application n° 51564/99, §§ 79-95. See alsoRecommendation n° R(98)13 <strong>of</strong> the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe to the Member States on theCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003151principle which justified the withdrawal <strong>of</strong> this guarantee in the text <strong>of</strong> the Directive seemshardly convincing: even if the States do not have the choice whether or not to assign asuspensive effect to the appeal lodged against an expulsion decision, they in any case can stillchoose the means by which they can fulfil this obligation. The fact <strong>of</strong> taking into account thelength <strong>of</strong> residence in the Union in order to afford enhanced protection against expulsionembodies the wish to follow the instructions <strong>of</strong> Recommendation 2000(15) <strong>of</strong> the Committee<strong>of</strong> Ministers 459 , as well as the lessons that can be learnt from the case-law <strong>of</strong> the EuropeanCourt <strong>of</strong> Human Rights.Article 46. Diplomatic and consular protectionThis right is implemented, at the level <strong>of</strong> the Union, by Decision 95/553/EC <strong>of</strong> theRepresentatives <strong>of</strong> the Governments <strong>of</strong> the Member States meeting within the Council <strong>of</strong> 19December 1995 regarding protection for citizens <strong>of</strong> the European Union by diplomatic andconsular representations 460 , and by Decision 96/409/CSFP <strong>of</strong> the Representatives <strong>of</strong> theGovernments <strong>of</strong> the Member States, meeting within the Council <strong>of</strong> 25 June 1996 on theestablishment <strong>of</strong> an emergency travel document 461 . The reader is referred to the nationalreports on the situation <strong>of</strong> fundamental rights in 2003, for an overview <strong>of</strong> the implementation<strong>of</strong> these instruments at the level <strong>of</strong> the Member States.CHAPTER VI : JUSTICEArticle 47. Right to an effective remedy and to a fair trialThe right to an effective remedy in the system <strong>of</strong> legal remedies organized by the EC TreatyIn 2002, the Court <strong>of</strong> First Instance has suggested a modification <strong>of</strong> the traditionalunderstanding <strong>of</strong> the requirements laid down by Article 230 al. 4 EC for the admissibility <strong>of</strong>actions <strong>of</strong> annulment lodged by private applicants against Community acts <strong>of</strong> a generalnature 462 . This modification was proposed in reference, in particular, to Article 47 <strong>of</strong> theCharter. The Court <strong>of</strong> First Instance considered that neither the possibility to seek apreliminary ruling on the validity <strong>of</strong> any Communtiy act, nor the possibility <strong>of</strong> an action fordamages for extra-contractual liability <strong>of</strong> the EC institutions, could compensate for the lacunain the judicial protection <strong>of</strong> the individual resulting from the Plaumann reading <strong>of</strong> Article 230al. 4 EC (then Art. 173 al. 2 EEC Treaty) 463 . Therefore the Court <strong>of</strong> First Instance proposed, inJégo-Quéré, « in order to ensure effective judicial protection for individuals », to consider that« a natural or legal person is to be regarded as individually concerned by a Communitymeasure <strong>of</strong> general application that concerns him directly if the measure in question affectshis legal position, in a manner which is both definite and immediate, by restricting his rightsor by imposing obligations on him. The number and position <strong>of</strong> other persons who arelikewise affected by the measure, or who may be so, are <strong>of</strong> no relevance in that regard »(Recital 51).right to rejected asylum seekers to an effective remedy against decisions on expulsion in the context <strong>of</strong> Article 3 <strong>of</strong>the European Convention on Human Rights, adopted by the Committee <strong>of</strong> Ministers on 18 September 1998, at the641 st meeting <strong>of</strong> the Ministers’ Deputies (although this recommendation ostensibly only envisages rejectedasylum-seekers, it constitutes in fact an authoritative interpretation <strong>of</strong> Article 13 ECHR in the context <strong>of</strong> removaldecisions for whichever grounds, including public order and public security).459 Rec(2000)15 concerning the security <strong>of</strong> residence <strong>of</strong> long-term migrants, Committee <strong>of</strong> Ministers, 13September 2000460 OJ L 314 <strong>of</strong> 28.12.1995.461 OJ L 168 <strong>of</strong> 6.7.1996.462 C.F.I., 3 May 2002, Jego-Quéré v. Commission, T-177/01.463 ECJ, 15 July 1963, Plaumann v. Commission, 25/62, ECR, p. 197.CFR-CDF.rep.UE.2003.en

152EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSIn the Union de Pequeños Agricultores judgment <strong>of</strong> 25 July 2002 464 , the European Court <strong>of</strong>Justice however rejected this expansion <strong>of</strong> the right <strong>of</strong> the individual to seek the annulment <strong>of</strong>a Community act <strong>of</strong> a general nature. The Court considered that the Community judicaturecould not assume a modification <strong>of</strong> the conditions laid down in the EC Treaty. By doing so,even in the name <strong>of</strong> effective judicial protection, the Community judicature would beexercising a power to modify the Treaty which is reserved to the Member States : it is forthese Member States, « if necessary, in accordance with Article 48 EU, to reform the systemcurrently in force » (Recital 45). However, the Court went on to add (Recitals 41 and 42) :…it is for the Member States to establish a system <strong>of</strong> legal remedies and procedureswhich ensure respect for the right to effective judicial protection.In that context, in accordance with the principle <strong>of</strong> sincere cooperation laid down inArticle 5 <strong>of</strong> the Treaty, national courts are required, so far as possible, to interpret andapply national procedural rules governing the exercise <strong>of</strong> rights <strong>of</strong> action in a way thatenables natural and legal persons to challenge before the courts the legality <strong>of</strong> anydecision or other national measure relative to the application to them <strong>of</strong> a Communityact <strong>of</strong> general application, by pleading the invalidity <strong>of</strong> such an act.In a later judgment <strong>of</strong> 10 December 2002 465 , where it was requested to give judgment on thevalidity <strong>of</strong> a directive where the Member State concerned has not implemented thisinstrument, the Court considered that it should consider such a request for a preliminaryruling admissible. It rejected an argument that this constituted a means to circumvent therestrictions imposed by Article 230 al. 4 EC on the right <strong>of</strong> private individuals to seek theannulment <strong>of</strong> Community acts other than decisions addressed to them. Referring to itsjudgment in Unión de Pequeños Agricultores the Court noted thatin the complete system <strong>of</strong> legal remedies and procedures established by the EC Treatywith a view to ensuring judicial review <strong>of</strong> the legality <strong>of</strong> acts <strong>of</strong> the institutions, wherenatural or legal persons cannot, by reason <strong>of</strong> the conditions for admissibility laid downin the fourth paragraph <strong>of</strong> that article, directly challenge Community measures <strong>of</strong>general application, they are able, depending on the case, either indirectly to plead theinvalidity <strong>of</strong> such acts before the Community judicature under Article 241 EC or to doso before the national courts and ask them, since they have no jurisdiction themselvesto declare those measures invalid, to make a reference to the Court <strong>of</strong> Justice for apreliminary ruling on validity (Recital 39)The Draft Treaty establishing a Constitution for Europe is aimed at responding to the requestfrom the Community court to bring the legal remedies provided for in the Union into line withthe requirements <strong>of</strong> Articles 6 and 13 <strong>of</strong> the European Convention on Human Rights andArticle 47 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> the European Union. Article III-270 <strong>of</strong> thedraft European Constitution provides, “Any natural or legal person may, (…) instituteproceedings against an act addressed to that person or which is <strong>of</strong> direct and individualconcern to him or her, and against a regulatory act which is <strong>of</strong> direct concern to him or herand does not entail implementing measures” 466 . The inter-governmental conference convenedunder the Italian presidency <strong>of</strong> the Council did not lead to an agreement on the draftConstitution. In the meantime, it is advisable to make up for the incapacity <strong>of</strong> the foundingauthority <strong>of</strong> the Union to ensure this alignment, in accordance with the provisions <strong>of</strong> the ECTreaty as interpreted by the Court <strong>of</strong> Justice <strong>of</strong> the European Communities 467 . The domestic464 ECJ, 25 July 2002, Union de Pequeños Agricultores v. Council, C-50/00.465 ECJ, 10 December 2002, Imperial Tobacco, C-491/01, nyr.466 This formula is in line with the suggestion made by the Court <strong>of</strong> First Instance in the Jégo-Quéré judgment <strong>of</strong> 3May 2002.467 In the Philip Morris judgment <strong>of</strong> 15 January 2003 (joined cases T-377/00, T-379/00, T-380/00, T-260/01 andT-272/01), the Court <strong>of</strong> First Instance considered, “It is not for the Community judicature to usurp the function <strong>of</strong>the founding authority <strong>of</strong> the Community in order to change the system <strong>of</strong> legal remedies and proceduresCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003153courts <strong>of</strong> the Member States must broadly interpret their authority to hear appeals aimed atpreventing the risk <strong>of</strong> infringement <strong>of</strong> rights or interests resulting from the application vis-àvisthe applicant <strong>of</strong> a rule <strong>of</strong> Community law or State measures ensuring the executionthere<strong>of</strong>, modelled on the Festellungsklage provided for in German law.It is true that Member States are free to organize remedies available before their domesticjudicial authorities, even when those remedies are used to invoke rights derived directly fromCommunity law, provided that the detailed procedural rules governing actions are not lessfavourable than those governing similar domestic actions (principle <strong>of</strong> equivalence) and thatthey do not render practically impossible or excessively difficult the exercise <strong>of</strong> rightsconferred by Community law (principle <strong>of</strong> effectiveness) 468 . However, Article 47 <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights is binding on Member States in the organization <strong>of</strong> remediesbased on European law. They are also obliged to co-operate faithfully in the achievement <strong>of</strong>the Community’s tasks (Article 10 EC). In a judgment <strong>of</strong> 11 September 2003, the Court <strong>of</strong>Justice <strong>of</strong> the European Communities reiterated, “While it is, in principle, for national law todetermine an individual's standing and legal interest in bringing proceedings, Community lawnevertheless requires that the national legislation does not undermine the right to effectivejudicial protection” 469 . This right is undermined if the domestic remedies do not allow theaddressee <strong>of</strong> Community law, which directly affects the adoption <strong>of</strong> a Community instrument<strong>of</strong> general scope, to institute proceedings before the domestic courts in order to request thatthe Court <strong>of</strong> Justice <strong>of</strong> the European Communities be asked to give a preliminary ruling on thevalidity <strong>of</strong> the instrument in question, even before this instrument has given rise to executionmeasures against the applicant.The Commission could usefully encourage a comparative study <strong>of</strong> the remedies availablebefore the national jurisdictions <strong>of</strong> the Member States in such a situation. Such a study wouldexhibit to which extent the effectiveness <strong>of</strong> judicial protection differs according to theMember State where the subject <strong>of</strong> EC Law resides or conducts his/her activities, and ifnecessary, it could lead to call for an adaptation <strong>of</strong> the powers <strong>of</strong> the national jurisdictionswhere the judicial protection appears insufficient with regard to the requirements <strong>of</strong> Article 47<strong>of</strong> the Charter. The Commission could, basing itself on the results <strong>of</strong> such a study, present acommunication identifying the obligations which follow for the Member States, in theorganisation <strong>of</strong> remedies before the national courts, from Article 47 <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights and Article 10 EC. It is important to ensure that, when the contribute tothe implementation <strong>of</strong> European law, the national courts respect all the requirements whichfollow from the right to an effective remedy, although this may in certain cases require thattheir powers be adapted to that purpose. The Court <strong>of</strong> Justice has already asserted that theprocedural rules <strong>of</strong> domestic law are not beyond challenge where some <strong>of</strong> those rules preventthe addressee <strong>of</strong> Community law from pr<strong>of</strong>itably availing himself <strong>of</strong> the rights that areconferred on him by Community law 470 . A more active attitude on the part <strong>of</strong> the Commissionin this area can but contribute to the uniformity <strong>of</strong> application <strong>of</strong> Community law, whichestablished by the Treaty” (Recital 124). In this case, the CFI finds that the companies in question cannot seek theannulment <strong>of</strong> Commission decisions to commence legal proceedings before the courts <strong>of</strong> the United States, sincethese decisions do not produce binding and definitive legal effects. The CFI considers, “It may seem desirable thatindividuals should have, in addition to the possibility <strong>of</strong> an action for damages [provided for in Articles 235 ECand 288, par. 2, EC], a remedy under which actions <strong>of</strong> the Community institutions liable to prejudice their interestsbut which do not amount to decisions may be prevented or brought to an end”, yet it does not have the authority toalter the terms <strong>of</strong> reference it receives from the EC Treaty (Recital 124).468 ECJ, 20 September 2001, Courage and Crehan, C-453/99, ECR I-6297, recital 29.469 ECJ, 11 September 2003, Safalero, C-13/01, recital 50, and reference to the judgment <strong>of</strong> 11 July 1991,Verholen et al., C-87/90 to C-89/90, ECR I-3757, recital 24.470 See for example ECJ, 2 August 1993, Marshall v. Southampton and South West Hampshire Area HealthAuthority, C-271/91, ECR I-4367 (amount <strong>of</strong> damages that can be obtained for a victim <strong>of</strong> prohibiteddiscrimination); or ECJ, 19 June 1990, Factortame, C-213/89, ECR I-2433 (interim legal protection).CFR-CDF.rep.UE.2003.en

154EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSdepends on the remedies which individuals have at their disposal to demand compliancetherewith 471 .The right <strong>of</strong> access to justice in environmental matters in the system <strong>of</strong> the EuropeanCommunityThe present report has already noted that, with a view to make possible the entry into forcevis-à-vis the European Community <strong>of</strong> the Århus Convention on Access to Information, PublicParticipation in Decision-making and Access to Justice in Environmental Matters, theCommission has proposed the adoption <strong>of</strong> a Regulation <strong>of</strong> the European Parliament and <strong>of</strong> theCouncil on the application <strong>of</strong> the provisions <strong>of</strong> this instrument to EC institutions andbodies 472 . One <strong>of</strong> the most controversial questions during the consultations which precededthe formulation by the Commission <strong>of</strong> its proposal, concerned the implementation <strong>of</strong> Article 9<strong>of</strong> the Aarhus Convention.Article 9(1) <strong>of</strong> the Convention was not the source <strong>of</strong> any difficulties. The provision concernsonly the right to a judicial remedy where the request to have access to environmentalinformation is met with a refusal. According to Article 9(1) :Each Party shall, within the framework <strong>of</strong> its national legislation, ensure that anyperson who considers that his or her request for information under article 4 [obligation<strong>of</strong> the public authorities to grant to the public access to the information inenvironmental matters which are requested from them] has been ignored, wrongfullyrefused, whether in part or in full, inadequately answered, or otherwise not dealt within accordance with the provisions <strong>of</strong> that article, has access to a review procedurebefore a court <strong>of</strong> law or another <strong>independent</strong> and impartial body established by law.In the circumstances where a Party provides for such a review by a court <strong>of</strong> law, itshall ensure that such a person also has access to an expeditious procedure establishedby law that is free <strong>of</strong> charge or inexpensive for reconsideration by a public authorityor review by an <strong>independent</strong> and impartial body other than a court <strong>of</strong> law.Final decisions under this paragraph 1 shall be binding on the public authority holdingthe information. Reasons shall be stated in writing, at least where access toinformation is refused under this paragraph.The European Community has complied with this requirement by adopting Articles 7 and 8 <strong>of</strong>Regulation 1049/2001. This requires no further elaboration.Article 9(2) <strong>of</strong> the Aarhus Convention states :Each Party shall, within the framework <strong>of</strong> its national legislation, ensure that members<strong>of</strong> the public concerned(a) Having a sufficient interest or, alternatively,(b) Maintaining impairment <strong>of</strong> a right, where the administrative procedural law <strong>of</strong> aParty requires this as a precondition, have access to a review procedure before a court<strong>of</strong> law and/or another <strong>independent</strong> and impartial body established by law, to challengethe substantive and procedural legality <strong>of</strong> any decision, act or omission subject to theprovisions <strong>of</strong> article 6 [these are the decisions, acts or omissions which are471 See, e.g., the Explanatory Memorandum preceding the Proposal for a Directive <strong>of</strong> the European Parliament and<strong>of</strong> the Council on access to justice in environmental matters, COM(2003)624 final <strong>of</strong> 24.10.2003. Concerning aproposal which aims at setting out a common framework for Member States to ensure the respect <strong>of</strong> environmentallaw, inter alia by granting jus standi to environmental organisations before the national jurisdictions <strong>of</strong> theMember States, the Commission notes that « Community inaction [would] result in different levels <strong>of</strong>environmental protection and different standards <strong>of</strong> environmental law enforcement at Member State level » . Theproposal <strong>of</strong> the Commission is commented upon her<strong>eu</strong>nder.472 COM(2003)622 final, <strong>of</strong> 24/10/2003. See further on this proposal hereabove, under Article 38 <strong>of</strong> the Charter.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003155enumerated in Annex I to the Convention, or are considered to have an importantimpact on the environment] and, where so provided for under national law andwithout prejudice to paragraph 3 below, <strong>of</strong> other relevant provisions <strong>of</strong> thisConvention.What constitutes a sufficient interest and impairment <strong>of</strong> a right shall be determined inaccordance with the requirements <strong>of</strong> national law and consistently with the objective<strong>of</strong> giving the public concerned wide access to justice within the scope <strong>of</strong> thisConvention. To this end, the interest <strong>of</strong> any non-governmental organization meetingthe requirements referred to in article 2, paragraph 5, shall be deemed sufficient forthe purpose <strong>of</strong> subparagraph (a) above. Such organizations shall also be deemed tohave rights capable <strong>of</strong> being impaired for the purpose <strong>of</strong> subparagraph (b) above.The provisions <strong>of</strong> this paragraph 2 shall not exclude the possibility <strong>of</strong> a preliminaryreview procedure before an administrative authority and shall not affect therequirement <strong>of</strong> exhaustion <strong>of</strong> administrative review procedures prior to recourse tojudicial review procedures, where such a requirement exists under national law.Article 2(5) <strong>of</strong> the Aarhus Convention, to which Article 9(2) refers, says that the expression“the public concerned” refers tothe public affected or likely to be affected by, or having an interest in, theenvironmental decision-making; for the purposes <strong>of</strong> this definition, non-governmentalorganizations promoting environmental protection and meeting any requirementsunder national law shall be deemed to have an interest.Therefore, Article 6(2) <strong>of</strong> the Aarhus Convention provides, in essence, that must be able tochallenge any decision, act or omission <strong>of</strong> the public authorities which have or may have animportant effect on the environment, any person with an interest because that person is or maybe affected by that decision, act, or omission, or any non-governmental organisation acting infavor <strong>of</strong> the environment, without prejudice <strong>of</strong> the conditions which the internal law <strong>of</strong> theParty to the Convention may impose for the identification <strong>of</strong> these organisations. It would bea violation <strong>of</strong> the Convention to impose exceedingly rigorous conditions, or conditions whichare arbitrary, or which for any other reason affect the substance <strong>of</strong> the right <strong>of</strong> environmentalnon-governmental organisations to file court proceedings, and therefore would run counter theobjective <strong>of</strong> « giving the public concerned wide access to justice » in the domain covered bythe Convention.According to Article 6(3) <strong>of</strong> the Aarhus Convention :In addition and without prejudice to the review procedures referred to in paragraphs 1and 2 above, each Party shall ensure that, where they meet the criteria, if any, laiddown in its national law, members <strong>of</strong> the public have access to administrative orjudicial procedures to challenge acts and omissions by private persons and publicauthorities which contravene provisions <strong>of</strong> its national law relating to theenvironment.Finally, paragraphs 4 and 5 <strong>of</strong> Article 6 define the conditions which the remedy has to fulfil tobe considered « effective » in the context <strong>of</strong> environmental litigation :… the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequateand effective remedies, including injunctive relief as appropriate, and be fair,equitable, timely and not prohibitively expensive. Decisions under this article shall begiven or recorded in writing. Decisions <strong>of</strong> courts, and whenever possible <strong>of</strong> otherbodies, shall be publicly accessible.In order to further the effectiveness <strong>of</strong> the provisions <strong>of</strong> this article, each Party shallensure that information is provided to the public on access to administrative andCFR-CDF.rep.UE.2003.en

156EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSjudicial review procedures and shall consider the establishment <strong>of</strong> appropriateassistance mechanisms to remove or reduce financial and other barriers to access tojustice.To conform the existing system <strong>of</strong> judicial review with the requirements <strong>of</strong> Article 9 <strong>of</strong> theAarhus Convention, the Commission proposes to create an internal administrative review,introduced by a “request for internal review » (Article 9 <strong>of</strong> the proposed Regulation). Thisrequest must allege that the act or the omission constitutes a violation <strong>of</strong> the applicableenvironmental law. The request must be filed within four weeks <strong>of</strong> the act adopted or after thedate it should have been adopted. The institutions or bodies to which the request for internalreview is addressed must answer within twelve weeks in principle, and at most eighteenweeks 473 . If the institution or body denies the request 474 , an action for annulment or for failureto act may be filed with the European Court <strong>of</strong> Justice, in the conditions defined respectivelyin Article 230(4) EC and 232(3) EC. Article 11 <strong>of</strong> the proposed Regulation (« Proceedingsbefore the Court <strong>of</strong> Justice ») provides :1. Where the qualified entity which made a request for internal review according toArticle 9 considers that a decision by the Community institution or body in responseto that request is insufficient to ensure compliance with environmental law, thequalified entity may institute proceedings before the Court <strong>of</strong> Justice in accordancewith Article 230(4) EC Treaty, to review the substantive and procedural legality <strong>of</strong>that decision.2. Where a decision on a request for internal review made according to Article 9 hasnot been taken by the Community institution or body within the period mentioned inthat Article, the qualified entity may institute proceedings before the Court <strong>of</strong> Justicein accordance with Article 232(3) EC Treaty.The request for internal review and, therefore, the judicial review before the European Court<strong>of</strong> Justice, are only available to entities recognized as “qualified”. The criteria for theidentification <strong>of</strong> entities as “qualified” are listed in Article 12 <strong>of</strong> the proposed Regulation.Article 13 provides that the Commission will elaborate a procedure for the recognition <strong>of</strong>qualified entities, according to the criteria set in Article 12. The Commission will have tocreate and constantly update a register <strong>of</strong> entities considered qualified to contribute to thepreservation <strong>of</strong> the legality in environmental matters, although a case by case “ad hoc”recognition, for specific procedures, also will be possible. Finally, even recognized qualifiedentities will not be able to request an internal review <strong>of</strong> any decision affecting theenvironment adopted by the Community institutions or bodies : it is also required, accordingto Article 10, that “the subject matter in respect <strong>of</strong> which a request for internal review is madeis covered by its statutory activities” : the Explanatory Memorandum <strong>of</strong> the Commission saysthat, in particular, “the subject <strong>of</strong> the procedure must fall into the statutory and geographicalactivity <strong>of</strong> the entity”.The procedure through which the entities seeking to be recognized as « qualified » will obtainthis recognition, on the basis <strong>of</strong> the criteria listed in Article 12, is <strong>of</strong> course subject to thecontrol <strong>of</strong> the Court <strong>of</strong> Justice 475 . This procedure was chosen as it made it possible for theCommunity to implement Article 6 <strong>of</strong> the Aarhus Convention without modifying the system473 In what is an apparent translation mistake, the French version mentions eighteen weeks.474 The request for internal review must precede the filing <strong>of</strong> an action for annulment or for failure to act before theEuropean Court <strong>of</strong> Justice. This is in conformity with what is provided by Article 6(2), 2 nd indent, <strong>of</strong> the AarhusConvention, cited above.475 A denial <strong>of</strong> the recognition which is requested will be an individual decision adressed to the entity concerned,which can be challenged under Article 230(4) EC. The absence <strong>of</strong> a legal personality under the national laws <strong>of</strong> theMember States will not constitute an obstacle to the admissibility <strong>of</strong> such an action : see, mutatis mutandis, ECJ, 8October 1974, Syndicat général du personnel des organismes <strong>eu</strong>ropéens v. Commission <strong>of</strong> the EuropeanCommunities, 18/74, ECR 933, Recitals 5-11.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003157<strong>of</strong> remedies created by the Treaty <strong>of</strong> Rome. By answering to the « qualified entity » that itwill not review the decision it has taken, the Community institution or body addresses to thatentity a decision, which will be challenged through the normal avenue <strong>of</strong> an action forannulment ; if it does not answer within the prescribed time limits, an action for failure to actwill be available to the entity having made the request. Thus, although these entities wouldnormally not be seen as having a direct and individual interest sufficient to seek theannulment <strong>of</strong> the decision affecting the environment under the criteria <strong>of</strong> Article 230(4) EC,they will have the required standing, under this mechanism, to seek a judicial review <strong>of</strong> thosedecisions, and give an opportunity to the Community judicature to verify their compatibilitywith European environmental law 476 .The Aarhus Convention does not exclude that such a selection is made amongst the entitiesseeking to act to ensure that public authorities comply with environmental law, where theseentities have no direct interest in such proceedings, i.e., where their subjective rights have notbeen violated and where they have not been directly affected by the act they seek tochallenge. Article 2(5) <strong>of</strong> the Convention says only that should be recongized an “objective”interest to seek judicial review <strong>of</strong> such acts potentially impacting upon the environment “nongovernmentalorganizations promoting environmental protection and meeting anyrequirements under national law shall be deemed to have an interest ». It does not appear thatthe criteria listed in Article 12 <strong>of</strong> the proposed Regulation are unreasonable, or go beyondwhat Article 2(5) <strong>of</strong> the Aarhus seems to accept. Where it recognizes the entities seeking to beconsidered « qualified » to act in the name <strong>of</strong> the preservation <strong>of</strong> the environment, theCommission is still under the control <strong>of</strong> the European Court <strong>of</strong> Justice, which is a guaranteeagainst the risk <strong>of</strong> misuse <strong>of</strong> powers or discrimination.The right <strong>of</strong> access to justice in environmental matters in the Member StatesThe Aarhus Convention which the European Community and the fifteen Member Statessigned on 25 June 1998 comprises three pillars. The right <strong>of</strong> access to environmentalinformation was the object <strong>of</strong> Directive 2003/4/EC <strong>of</strong> the European Parliament and <strong>of</strong> theCouncil <strong>of</strong> 28 January 2003 on public access to environmental information and repealingCouncil Directive 90/313/EEC 477 . The right to take part in decision-making processes was theobject <strong>of</strong> Directive 2003/35/EC <strong>of</strong> the European Parliament and the Council <strong>of</strong> 26 May 2003providing for public participation in respect <strong>of</strong> the drawing up <strong>of</strong> certain plans andprogrammes relating to the environment and amending with regard to public participation andaccess to justice Council Directives 85/337/EEC and 96/61/EC 478 . Finally, the Commissionhas proposed a Directive <strong>of</strong> the European Parliament and <strong>of</strong> the Council on access to justice inenvironmental matters, which seeks to implement, with regard to the Member States in adomain attributed to the Community by Articles 174 and 175 EC, the third pillar <strong>of</strong> theAarhus Convention, namely « the right to recourse to administrative or judicial procedures todispute acts and omissions <strong>of</strong> private persons and public authorities violating the provisions <strong>of</strong>environmental law » 479 . The system set in place by this latter directive is identical, mutatismutandis, to the implementation <strong>of</strong> the “access to justice” pillar <strong>of</strong> the Aarhus Conventionwhich the Commission has proposed 480 . Therefore the reader is referred back to the previousdiscussion on this point.476 In other fields too, the Community legislature has sometimes acted, through secundary legislation, to recognizea private person as « interested » in a particular procedure, which has been considered as investing that person withthe legal interest required for the filing <strong>of</strong> an action for annulment, under Article 230(4) EC. See, e.g., in the field<strong>of</strong> State aids, CFI, 12 December 1996, AIUFASS, C-380/94 (interested persons authorized to present their views inthe framework <strong>of</strong> the procedure <strong>of</strong> Article 88(2) EC) ; or ECJ, 28 January 1986, C<strong>of</strong>az e.a. v. Commission, 169/84,ECR 391, Recital 23.477 OJ L 41 <strong>of</strong> 14.2.2003, p. 26. See hereabove, the commentary <strong>of</strong> Article 37 <strong>of</strong> the Charter.478 OJ L 156, <strong>of</strong> 25.6.2003, p. 17. See hereabove, the commentary <strong>of</strong> Article 37 <strong>of</strong> the Charter.479 COM(2003)624 final, <strong>of</strong> 24.10.2003.480 COM(2003)622 final, <strong>of</strong> 24.10.2003.CFR-CDF.rep.UE.2003.en

158EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSImproving access to justice in cross-border disputesCouncil Directive 2002/8/EC <strong>of</strong> 27 January 2003 to improve access to justice in cross-borderdisputes by establishing minimum common rules relating to legal aid for such disputes 481seeks to promote the application <strong>of</strong> legal aid in cross-border disputes for persons who lacksufficient resources where aid is necessary to secure effective access to justice. The directiveis based on the idea that it would be unacceptable if a person were unable to assert his/herrights in court because <strong>of</strong> his/her personal financial situation, in cross-border disputes relatingto civil or commercial matters : if legal aid were not available in the State in which the courtis sitting, rights would be left unremedied, and cross-border transactions may be discouragedand become less attractive to vulnerable persons. Directive 2002/8/EC is based on Article65(c) <strong>of</strong> the Treaty, which provides for the adoption <strong>of</strong> measures eliminating obstacles to thegood functioning <strong>of</strong> civil proceedings, if necessary by promoting the compatibility <strong>of</strong> the ruleson civil procedure applicable in the Member States. Article 47 <strong>of</strong> the Charter <strong>of</strong> FundamentalRights is mentioned in the Preamble. The common minimum standards which the Directiveimposes relate to legal aid in the broadest sense <strong>of</strong> the expression : it covers, indeed, prelitigationadvice with a view to reaching a settlement prior to bringing legal proceedings, legalassistance in bringing a case before a court and representation in court – including appealslodged by, or against, the beneficiary (Article 9(3)) – and assistance with or exemption fromthe cost <strong>of</strong> proceedings (see Article 3(2) <strong>of</strong> the Directive). Legal aid as defined in the directivefor cross-border disputes in civil and commercial matters is to be recognized to the citizens <strong>of</strong>the Union, but also to third-country nationals residing lawfully in a Member State (Article 4).This instrument will play an important role in guaranteeing effective access to justice tolitigants seeking to sue another person or have a judicial decision enforced in a Member Stateother than the one in which the litigant is domiciled or habitually resides. It <strong>of</strong>fers a clearillustration <strong>of</strong> the complementarity between the development <strong>of</strong> an area <strong>of</strong> freedom, securityand justice and the promotion <strong>of</strong> fundamental rights. It is particularly to be welcomed thatArticle 15 <strong>of</strong> the Directive, which relates to the processing <strong>of</strong> applications to legal aid,complements Articles 6 (“Conditions relating to the substance <strong>of</strong> disputes”, providing inparticular that “Member States may provide that legal aid applications for actions whichappear to be manifestly unfounded may be rejected by the competent authorities”) and 12, byrequiring certain guarantees – an <strong>independent</strong> and impartial examination <strong>of</strong> the manifestlyunfounded character <strong>of</strong> the action for which legal aid is applied for, abd the guarantee that anydecision on the application will in the final instance be subject to review by a court – theabsence <strong>of</strong> which could have led to a violation <strong>of</strong> Article 6(1) ECHR. The system which theDirective provides for seems to fulfil the requirements set forth on this question by theEuropean Court <strong>of</strong> Human Rights 482 . Formally, it does not seem that these guarantees would481 OJ L 26 <strong>of</strong> 31.1.2003, p. 41.482 See Eur. Ct HR (3d section), Del Sol c. France judgment <strong>of</strong> 26 February 2002 (Appl. n° 46800/99). In this casewhere the applicant has been denied legal aid for proceedings before the Court <strong>of</strong> Cassation because <strong>of</strong> the the lack<strong>of</strong> an arguable ground <strong>of</strong> appeal on points <strong>of</strong> law – a reason explicitly contemplated by the French Law no. 91-647<strong>of</strong> 10 July 1991 – , the European Court <strong>of</strong> Human Rights considered that such a system “ was undoubtedlyintended to meet the legitimate concern that public money should only be made available to applicants for legal aidwhose appeals to the Court <strong>of</strong> Cassation have a reasonable prospect <strong>of</strong> success. (…) it is obvious that a legal-aidsystem can only operate if machinery is in place to enable a selection to be made <strong>of</strong> those cases qualifying for it”(§ 23). However the Court insisted that before deciding that Article 6(1) ECHR had not been violated – the “sveryessence <strong>of</strong> the right <strong>of</strong> access to a court” had not been infringed – it had “ due regard to the quality <strong>of</strong> a legal-aidscheme within a State” (§ 25). Indeed, the Court considered that “The scheme set up by the French legislature<strong>of</strong>fers individuals substantial guarantees to protect them from arbitrariness. The Legal Aid Office <strong>of</strong> the Court <strong>of</strong>Cassation is presided over by a judge <strong>of</strong> that court and also includes its senior registrar, two members chosen bythe Court <strong>of</strong> Cassation, two civil servants, two members <strong>of</strong> the Conseil d'État and Court <strong>of</strong> Cassation Bar and amember appointed by users (section 16 <strong>of</strong> the Law <strong>of</strong> 10 July 1991 cited above and Article 16 <strong>of</strong> its implementingdecree <strong>of</strong> 19 December 1991). Moreover, an appeal lies to the President <strong>of</strong> the Court <strong>of</strong> Cassation against refusals<strong>of</strong> legal aid (section 23 <strong>of</strong> the Law). In addition, the applicant was able to put forward her case both at first instanceand on appeal” (§ 26). See also Eur. Ct. HR (3d sect.), Essaadi v. France judgment <strong>of</strong> 26 February 2002, Appl. n°49384/99.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003159apply to the decisions taken by the transmitting authorities <strong>of</strong> the Member State in which theapplicant is domiciled or habitually resident, where these authorities refuse to transmit theapplication for legal aid as they consider that it is manifestly ill-founded (Article 13(3)(a)).Indeed, when he/she encounters such a refusal, the applicant may directly request thecompetent authorities <strong>of</strong> the Member State in which the court is sitting or where the decisionis to be enforced to grant the legal aid applied for (Article 13(1)(a)). It is hoped, however, thatthe transmitting authorities will not use their powers under Article 13(3)(a) as if they were t<strong>of</strong>unction as a filtering mechanism for ill-founded applications, as this should normally beperformed by the authorities <strong>of</strong> the State where the court is sitting, according to a procedure towhich the guarantees <strong>of</strong> Article 15 shall apply. It will particularly important, in the evaluationwhich will be made <strong>of</strong> the Directive, to verify how the transmitting authorities have exercisedtheir functions.In the interpretation <strong>of</strong> the duties <strong>of</strong> the Member States under the Directive, it should be keptin mind that the right to legal aid is simply a tool towards the realization <strong>of</strong> the end which issought, i.e., effective access to justice. Where the mechanism provided in compliance withDirective 2002/8/EC is not sufficient to this effect, even where the implementation <strong>of</strong> theDirective has been deemed satisfactory in the first place, the competent authorities may b<strong>eu</strong>nder a duty to act : they may have to adopt measures to ensure effective access to justice,where the system fails. The recent case-law <strong>of</strong> the European Court <strong>of</strong> Human Rights hasemphasized that the right to an effective access to a court requires that the authorities adoptmeasures in reaction to situations where the legal aid which is granted appears unsufficient inthe course <strong>of</strong> the proceedings, for instance because the legal representative <strong>of</strong> the applicantdoes not perform his/her function properly, or because the representatives who are designatedappear reluctant to pursue the proceedings 483 .Article 48. Presumption <strong>of</strong> innocence and right <strong>of</strong> defenceThe role <strong>of</strong> the Advocate General in the European Court <strong>of</strong> JusticeIn the case <strong>of</strong> Kaba (n° 2), the European Court <strong>of</strong> Justice was requested by the ImmigrationAdjudicator (United Kingdom) to answer two questions relating to a case which had alreadyled to first judgment by the European Court <strong>of</strong> Justice on 11 April 2000 484 . The first questionwas formulated thus :What mechanisms are there for the referring court or the parties to the proceedings(before the referring court and the ECJ) to ensure that the obligations under Article 6ECHR are complied with and therefore to ensure that no infringement <strong>of</strong> Article 6ECHR arises either under the domestic human rights legislation or before the Court <strong>of</strong>Human Rights?Was the procedure followed in this case in compliance with the requirements <strong>of</strong>Article 6 ECHR and, if not, how does this affect the validity <strong>of</strong> the first judgment?Indeed, Mr Kaba complained that, upon answering the Immigration Officer in the first case,the European Court <strong>of</strong> Justice has violated the right to adversarial proceedings, by notreopening the oral proceedings after the Advocate General within the European Court <strong>of</strong>Justice had delivered his opinion. In his opinion <strong>of</strong> 11 July 2002, Advocate General Ruiz-Jarabo Colomer had considered that the European Court <strong>of</strong> Justice should reaffirm its order <strong>of</strong>4 February 2000 in the case <strong>of</strong> Emesa Sugar, where it considered that the case-law <strong>of</strong> theEuropean Court <strong>of</strong> Human Rights, finding an incompatibility between the role <strong>of</strong> the483 See, e.g., Eur. Ct. HR (2 nd section), Bertuzzi v. France judgment <strong>of</strong> 13 February 2003 (Appl. n°36378/97), § 30.484 ECJ, 11 April 2000, Kaba, C-356/98, ECR I-2623.CFR-CDF.rep.UE.2003.en

160EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSAdvocate General before Courts <strong>of</strong> cassation 485 , could not be considered to apply to theAdvocate General before the European Court <strong>of</strong> Justice, <strong>of</strong> which he/she is a member and inthe administration <strong>of</strong> justice by which the Advocate General takes part in a fully impartial and<strong>independent</strong> manner 486 . Since the order in Emesa Sugar, however, the European Court <strong>of</strong>Human Rights has delivered another judgment going one step further towards finding apossible incompatibility between the requirements <strong>of</strong> Article 6 ECHR and the role <strong>of</strong> theAdvocate General before the European Court <strong>of</strong> Justice, as it found such an incompatibility inthe role <strong>of</strong> the commissaire du gouvernementl before the French Conseil d’Etat, with which itpresents many similarities 487 . AG Ruiz-Jarabo Colomer stated in his opinion (points 104-105) 488 :It is true that, in its judgment <strong>of</strong> 7 June 2001 in Kress v France, the European Court <strong>of</strong>Human Rights, in assessing, inter alia, whether the inability <strong>of</strong> the parties to respondto the submissions <strong>of</strong> the Commissaire du Gouvernement was compatible with Article6(1) ECHR, stated: 'No one has ever cast doubt on the independence or impartiality <strong>of</strong>the [Commissaire du Gouvernement], and the Court considers that his existence andinstitutional status are not in question under the Convention. However, the Court is <strong>of</strong>the view that the [Commissaire's] independence and the fact that he is not responsibleto any hierarchical superior, which is not disputed, are not in themselves sufficient tojustify the assertion that the non-disclosure <strong>of</strong> his submissions to the parties and thefact that it is impossible for the parties to reply to them are not capable <strong>of</strong> <strong>of</strong>fendingagainst the principle<strong>of</strong> a fair trial.' This enabled the Strasbourg Court to reiterate itscase-law, according to which 'the concept <strong>of</strong> a fair trial also means in principle theopportunity for the parties to a trial to have knowledge <strong>of</strong> and comment on allevidence adduced or observations filed, even by an <strong>independent</strong> member <strong>of</strong> thenational legal service, with a view to influencing the court's decision'.It seems that what was being sought was not so much the protection <strong>of</strong> a fundamentalright as the imposition <strong>of</strong> a uniform conception <strong>of</strong> the organisation <strong>of</strong> the procedure,without explaining the need for it in terms going beyond the 'doctrine <strong>of</strong> appearances'.It is legitimate to wonder - as did the seven judges who each cast their own<strong>independent</strong> votes on the matter - whether, for the purposes <strong>of</strong> the Convention, thelimits <strong>of</strong> 'European control' may not be exceeded in the light <strong>of</strong> the specific nature <strong>of</strong>national rules, which remain legitimate in so far as they fulfil the obligations toachieve a certain result which flow from the requirements <strong>of</strong> the Convention.In its judgment <strong>of</strong> 6 March 2003, the European Court <strong>of</strong> Justice considered it did not have toanswer the question from the Immigration Adjudicator concerning a possible incompatibilitybetween the requirements <strong>of</strong> the rights protected under the European Convention <strong>of</strong> HumanRights and the organisation <strong>of</strong> the procedure before the European Court <strong>of</strong> Justice. However,this simply provides one more illustration for the need to ensure accession <strong>of</strong> the EuropeanCommunity/Union to the European Convention on Human Rights, to ensure a better division<strong>of</strong> tasks between the two jurisdictions, and limit the risk <strong>of</strong> any divergences <strong>of</strong> interpretation485 See esp. Eur. Ct. HR, judgment Verm<strong>eu</strong>len v. Belgium <strong>of</strong> 20 February 1996, Rep. 1996-I, p. 224 ; judgment VanOrshoven v. Belgium <strong>of</strong> 25 June 1997, Rep. 1997-III, p. 1039.486 ECJ, order <strong>of</strong> 4 February 2000, Emesa Sugar, C-17/98, ECR I-665.487 See Eur Ct HR (GC), judgment Kress v. France <strong>of</strong> 7 June 2001, Appl. N°39594/98. The Court considers thatthe notion <strong>of</strong> fair trial « implique (…) en principe le droit pour les parties à un procès de prendre connaissance detoute pièce ou observation soumise au juge, fût-ce par un magistrat indépendant, en vue d’influencer une décision,et de la discuter » (§ 74). In Kress, it concludes that Article 6(1) ECHR has not been violated, but only because, inthe procedure as it is organized before the French Conseil d’Etat, the counsel can inquire with the commissaire dugouvernement, before the hearing, about the general sense <strong>of</strong> his/her conclusions, and may moreover reply, by awritten note, to these conclusions, « ce qui permet, et c’est essentiel aux y<strong>eu</strong>x de la Cour, de contribuer au respectdu principe du contradictoire » (§ 76 – our emphasis).488 The footnotes are omitted from the extracts <strong>of</strong> the Opinion.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003161which do not find their definitive solution. The question whether or not the Kress case-lawwould apply to the Advocate General before the European Court <strong>of</strong> Justice is a question <strong>of</strong>interpretation <strong>of</strong> the requirements <strong>of</strong> the European Convention on Human Rights, which arethe main source <strong>of</strong> the fundamental rights protected in the EU legal order; as the EuropeanCourt <strong>of</strong> Justice has rightly noted 489 , the European Court <strong>of</strong> Human Rights should berecognized the last word on this question.Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout theEuropean UnionIn February 2003, the Commission adopted the Green Paper on Procedural Safeguards forSuspects and Defendants in Criminal Proceedings throughout the European Union 490 . Article31 EU states that common action on judicial cooperation in criminal matters shall include (a)facilitating and accelerating cooperation between competent ministries and judicial orequivalent authorities <strong>of</strong> the Member States in relation to proceedings and the enforcement <strong>of</strong>decisions; [..](c) ensuring compatibility in rules applicable in the Member States, as may benecessary to improve such co-operation”. The Commission considered that these provisionscould justify the adoption <strong>of</strong> measures seeking to reinforce the mutual confidence between theMember States, by the common definition <strong>of</strong> a limited number <strong>of</strong> minimal guarantees for theaccused person : the Green Paper proposes to <strong>of</strong>fer such common definitions with respect tothe right to legal assistance and representation – in particular the possibility, upon the moment<strong>of</strong> the arrest, to seek the assistance <strong>of</strong> lawyer, and possibly to be granted de defence lawyerfree <strong>of</strong> charge –, to the right to a competent and qualified translator and/or interpreter, to theright <strong>of</strong> members <strong>of</strong> certain vulnerable categories (aliens, children, persons with a disability orwho are emotionally fragile, persons who cannot read or write, refugees or asylum-seekers,alcoholics or drug addicts) to specific protection, to the right to consular assistance for nonnationals,and – lastly – to the right to be adequately informed about the rights afforded, bybeing presented with a “letter <strong>of</strong> rights” describing in understandable language the rightsrecognized to person deprived <strong>of</strong> his/her liberty. The Green Paper does not cover certainrights, which will form the object <strong>of</strong> further initiatives : the right to bail (provisional release)where appropriate; the right to fairness in obtaining and handling evidence, including the rightagainst self-incrimination and the right to cross-examine witnesses, and the principle <strong>of</strong> ne bisin idem.The initiative <strong>of</strong> the Commission has generally been very favourably welcomed by thestakeholders. It clearly shows a willingness, obviously encouraged by the perspective <strong>of</strong> theenlargement <strong>of</strong> the Union (see point 1.9.), to anchor the mutual confidence on which judicialcooperation in criminal matters is based – particularly through mutual recognition <strong>of</strong> criminaljudicial decisions – in guarantees which <strong>of</strong>ten are situation above the minimal threshold set bythe European Convention on Human Rights. The method has been to take the rights <strong>of</strong> theECHR as a departure point, but to identify, through a comparison <strong>of</strong> how these rights havebeen implemented in the Member States, the best or more promising practices, thegeneralisation <strong>of</strong> which throughout the Union would make it possible to ground mutualconfidence on a high level <strong>of</strong> protection <strong>of</strong> fundamental rights.Whether it proceeds in stages or not, an initiative <strong>of</strong> the Union seeking to identify thefundamental rights the recognition <strong>of</strong> which to the suspects throughout the Union from themoment <strong>of</strong> the arrest, according to a common definition <strong>of</strong> these rights, could include a set <strong>of</strong>rights which <strong>of</strong>fer an adequate against the specific risk <strong>of</strong> ill-treatment in the hands <strong>of</strong> thepolice. These rights could be described in the “letter <strong>of</strong> rights” to be delivered to the accused,489 ECJ, 10 April 2003, Steffensen, C-276/01, Recital 72. This also would follow from Article 52 § 3 <strong>of</strong> the Charter<strong>of</strong> Fundamental Rights.490 COM(2003)75 final, <strong>of</strong> 19.2.2003. At the moment <strong>of</strong> writing, the Framework Decision which is being preparedby the Commission on the basis <strong>of</strong> the Green Paper has not been released yet. Therefore the comments are basedsolely on the Green Paper.CFR-CDF.rep.UE.2003.en

162EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSand be accompanied by the indication <strong>of</strong> the complaint mechanisms which may be resorted towhere the police has allegedly committed abuses. These rights should be defined according tothe standards set by the European Committee for the Prevention <strong>of</strong> Torture and Inhuman orDegrading Treatment or Punishment (CPT), which have been elaborated on the basis <strong>of</strong> thepractical experience <strong>of</strong> the Committee with situations <strong>of</strong> detention 491 (see also the excerpts <strong>of</strong>the 12 th General Report <strong>of</strong> Activities <strong>of</strong> the CPT, which <strong>of</strong>fer a more complete and detailedlist):- from the moment <strong>of</strong> the arrest, the accused person must have access not only to a lawyer,but also to a doctor, and he/she must be able to contact a third person, f.i. a relative, andinform that person <strong>of</strong> his/her situation, unless certain exceptions can be justified in orderto protect the legitimate interests <strong>of</strong> the police investigation, to the extent that such clearlydefined exceptions are strictly limited in time, and are accompanied by appropriatesafeguards;- from the moment <strong>of</strong> detention, the accused person must receive a statement <strong>of</strong> his/herrights in a language both accessible and understandable, and the accused person must signa declaration according to which he/she has been provided that information; it could beprovided for instance that, when a person refuses to sign such a declaration, he/she willnot be questioned in the absence <strong>of</strong> a lawyer, as the presence <strong>of</strong> a lawyer may beconsidered to compensate for the possible ignorance <strong>of</strong> a person concerning his/her rights;- the questioning must have as objective to establish facts, and not to lay pressure on theperson suspected <strong>of</strong> having committed an <strong>of</strong>fence, and this ought to be mentioned to theperson accused before he/she is questioned;- the questioning must take place under material conditions which do not put the personquestioned in a vulnerable position;- the questioning must be performed by identified police <strong>of</strong>ficers, which implies, i.a., thatblindfolding the person questioned must be prohibited;- intimidating objects, which could be used to threaten or cause ill-treatment to the accusedperson, must be removed from the locale where the questioning takes place.The rights <strong>of</strong> the person detained because <strong>of</strong> suspicions that he/she may have committedan <strong>of</strong>fence. Extracts from the 12 th General Report <strong>of</strong> Activities <strong>of</strong> the CPT (2002) 49234. The questioning <strong>of</strong> criminal suspects is a specialist task which calls for specific trainingif it is to be performed in a satisfactory manner. First and foremost, the precise aim <strong>of</strong> suchquestioning must be made crystal clear: that aim should be to obtain accurate and reliableinformation in order to discover the truth about matters under investigation, not to obtain aconfession from someone already presumed, in the eyes <strong>of</strong> the interviewing <strong>of</strong>ficers, to beguilty. In addition to the provision <strong>of</strong> appropriate training, ensuring adherence <strong>of</strong> lawenforcement <strong>of</strong>ficials to the above-mentioned aim will be greatly facilitated by the drawing up<strong>of</strong> a code <strong>of</strong> conduct for the questioning <strong>of</strong> criminal suspects.35. Over the years, CPT delegations have spoken to a considerable number <strong>of</strong> detainedpersons in various countries, who have made credible claims <strong>of</strong> having been physicallyilltreated, or otherwise intimidated or threatened, by police <strong>of</strong>ficers trying to obtainconfessions in the course <strong>of</strong> interrogations. It is self-evident that a criminal justice systemwhich places a premium on confession evidence creates incentives for <strong>of</strong>ficials involved in theinvestigation <strong>of</strong> crime - and <strong>of</strong>ten under pressure to obtain results - to use physical orpsychological coercion. In the context <strong>of</strong> the prevention <strong>of</strong> torture and other forms <strong>of</strong> ill-491 The question <strong>of</strong> which guarantees should be afforded in the obtention <strong>of</strong> evidence, e.g. through questioning, isthe object <strong>of</strong> a distinct initiative <strong>of</strong> the Commission. It is difficult however to separate the two questions : theconditions under which an accused person is arrested and informed <strong>of</strong> his/her rights as a matter <strong>of</strong> course hasconsequences on the appreciation which will be made <strong>of</strong> the declarations that person will have made, either uponbeing arrested or in the course <strong>of</strong> subsequent questioning.492 CPT/Inf (92) 3, para. 34 ff. The CPT standards. « Substantive » sections <strong>of</strong> the CPT’s General Reports,CPT/Inf/E (2003).CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003163treatment, it is <strong>of</strong> fundamental importance to develop methods <strong>of</strong> crime investigation capable<strong>of</strong> reducing reliance on confessions, and other evidence and information obtained viainterrogations, for the purpose <strong>of</strong> securing convictions.36. The electronic (i.e. audio and/or video) recording <strong>of</strong> police interviews represents animportant additional safeguard against the ill-treatment <strong>of</strong> detainees. The CPT is pleased tonote that the introduction <strong>of</strong> such systems is under consideration in an increasing number <strong>of</strong>countries. Such a facility can provide a complete and authentic record <strong>of</strong> the interviewprocess, thereby greatly facilitating the investigation <strong>of</strong> any allegations <strong>of</strong> ill-treatment. Thisis in the interest both <strong>of</strong> persons who have been ill-treated by the police and <strong>of</strong> police <strong>of</strong>ficersconfronted with unfounded allegations that they have engaged in physical ill-treatment orpsychological pressure. Electronic recording <strong>of</strong> police interviews also reduces the opportunityfor defendants to later falsely deny that they have made certain admissions.37. The CPT has on more than one occasion, in more than one country, discoveredinterrogation rooms <strong>of</strong> a highly intimidating nature: for example, rooms entirely decoratedin black and equipped with spotlights directed at the seat used by the person undergoinginterrogation. Facilities <strong>of</strong> this kind have no place in a police service. In addition to beingadequately lit, heated and ventilated, interview rooms should allow for all participants in theinterview process to be seated on chairs <strong>of</strong> a similar style and standard <strong>of</strong> comfort. Theinterviewing <strong>of</strong>ficer should not be placed in a dominating (e.g. elevated) or remote positionvis-à-vis the suspect. Further, colour schemes should be n<strong>eu</strong>tral.38. In certain countries, the CPT has encountered the practice <strong>of</strong> blindfolding persons inpolice custody, in particular during periods <strong>of</strong> questioning. CPT delegations have receivedvarious - and <strong>of</strong>ten contradictory - explanations from police <strong>of</strong>ficers as regards the purpose <strong>of</strong>this practice. From the information gathered over the years, it is clear to the CPT that in manyif not most cases, persons are blindfolded in order to prevent them from being able to identifylaw enforcement <strong>of</strong>ficials who inflict ill-treatment upon them. Even in cases when no physicalill-treatment occurs, to blindfold a person in custody - and in particular someone undergoingquestioning - is a form <strong>of</strong> oppressive conduct, the effect <strong>of</strong> which on the person concernedwill frequently amount to psychological ill-treatment. The CPT recommends that theblindfolding <strong>of</strong> persons who are in police custody be expressly prohibited.39. It is not unusual for the CPT to find suspicious objects on police premises, such aswooden sticks, broom handles, baseball bats, metal rods, pieces <strong>of</strong> thick electric cable,imitation firearms or knives. The presence <strong>of</strong> such objects has on more than one occasion lentcredence to allegations received by CPT delegations that the persons held in theestablishments concerned have been threatened and/or struck with objects <strong>of</strong> this kind. Acommon explanation received from police <strong>of</strong>ficers concerning such objects is that they havebeen confiscated from suspects and will be used as evidence. The fact that the objectsconcerned are invariably unlabelled, and frequently are found scattered around the premises(on occasion placed behind curtains or cupboards), can only invite scepticism as regards thatexplanation. In order to dispel speculation about improper conduct on the part <strong>of</strong> police<strong>of</strong>ficers and to remove potential sources <strong>of</strong> danger to staff and detained persons alike, itemsseized for the purpose <strong>of</strong> being used as evidence should always be properly labelled, recordedand kept in a dedicated property store. All other objects <strong>of</strong> the kind mentioned above shouldbe removed from police premises.40. As from the outset <strong>of</strong> its activities, the CPT has advocated a trinity <strong>of</strong> rights for personsdetained by the police: the rights <strong>of</strong> access to a lawyer and to a doctor and the right tohave the fact <strong>of</strong> one's detention notified to a relative or another third party <strong>of</strong> one'schoice. In many States, steps have been taken to introduce or reinforce these rights, in thelight <strong>of</strong> the CPT's recommendations. More specifically, the right <strong>of</strong> access to a lawyer duringpolice custody is now widely recognised in countries visited by the CPT; in those fewcountries where the right does not yet exist, plans are afoot to introduce it.41. However, in a number <strong>of</strong> countries, there is considerable reluctance to comply with theCPT’s recommendation that the right <strong>of</strong> access to a lawyer be guaranteed from the veryoutset <strong>of</strong> custody. In some countries, persons detained by the police enjoy this right only afterCFR-CDF.rep.UE.2003.en

164EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSa specified period <strong>of</strong> time spent in custody; in others, the right only becomes effective whenthe person detained is formally declared a “suspect”.The CPT has repeatedly stressed that, in its experience, the period immediately followingdeprivation <strong>of</strong> liberty is when the risk <strong>of</strong> intimidation and physical ill-treatment is greatest.Consequently, the possibility for persons taken into police custody to have access to a lawyerduring that period is a fundamental safeguard against ill-treatment. The existence <strong>of</strong> thatpossibility will have a dissuasive effect upon those minded to ill treat detained persons;further, a lawyer is well placed to take appropriate action if ill-treatment actually occurs. TheCPT recognises that in order to protect the legitimate interests <strong>of</strong> the police investigation, itmay exceptionally be necessary to delay for a certain period a detained person's access to alawyer <strong>of</strong> his choice. However, this should not result in the right <strong>of</strong> access to a lawyer beingtotally denied during the period in question. In such cases, access to another <strong>independent</strong>lawyer should be arranged.The right <strong>of</strong> access to a lawyer must include the right to talk to him in private. The personconcerned should also, in principle, be entitled to have a lawyer present during anyinterrogation conducted by the police. Naturally, this should not prevent the police fromquestioning a detained person on urgent matters, even in the absence <strong>of</strong> a lawyer (who maynot be immediately available), nor rule out the replacement <strong>of</strong> a lawyer who impedes theproper conduct <strong>of</strong> an interrogation. The CPT has also emphasised that the right <strong>of</strong> access to alawyer should be enjoyed not only by criminal suspects but also by anyone who is under alegal obligation to attend - and stay at - a police establishment, e.g. as a “witness”. Further, forthe right <strong>of</strong> access to a lawyer to be fully effective in practice, appropriate provision should bemade for persons who are not in a position to pay for a lawyer.42. Persons in police custody should have a formally recognised right <strong>of</strong> access to a doctor.In other words, a doctor should always be called without delay if a person requests a medicalexamination; police <strong>of</strong>ficers should not seek to filter such requests. Further, the right <strong>of</strong> accessto a doctor should include the right <strong>of</strong> a person in custody to be examined, if the personconcerned so wishes, by a doctor <strong>of</strong> his/her own choice (in addition to any medicalexamination carried out by a doctor called by the police). All medical examinations <strong>of</strong>persons in police custody must be conducted out <strong>of</strong> the hearing <strong>of</strong> law enforcement <strong>of</strong>ficialsand, unless the doctor concerned requests otherwise in a particular case, out <strong>of</strong> the sight <strong>of</strong>such <strong>of</strong>ficials.It is also important that persons who are released from police custody without being broughtbefore a judge have the right to directly request a medical examination/certificate from arecognised forensic doctor.43. A detained person's right to have the fact <strong>of</strong> his/her detention notified to a third partyshould in principle be guaranteed from the very outset <strong>of</strong> police custody. Of course, the CPTrecognises that the exercise <strong>of</strong> this right might have to be made subject to certain exceptions,in order to protect the legitimate interests <strong>of</strong> the police investigation. However, suchexceptions should be clearly defined and strictly limited in time, and resort to them should beaccompanied by appropriate safeguards (e.g. any delay in notification <strong>of</strong> custody to berecorded in writing with the reasons therefor, and to require the approval <strong>of</strong> a senior police<strong>of</strong>ficer unconnected with the case or a prosecutor).44. Rights for persons deprived <strong>of</strong> their liberty will be <strong>of</strong> little value if the persons concernedare unaware <strong>of</strong> their existence. Consequently, it is imperative that persons taken into policecustody are expressly informed <strong>of</strong> their rights without delay and in a language which theyunderstand. In order to ensure that this is done, a form setting out those rights in astraightforward manner should be systematically given to persons detained by the police atthe very outset <strong>of</strong> their custody. Further, the persons concerned should be asked to sign astatement attesting that they have been informed <strong>of</strong> their rights.45. The CPT has stressed on several occasions the role <strong>of</strong> judicial and prosecutingauthorities as regards combating ill-treatment by the police. For example, all personsdetained by the police whom it is proposed to remand to prison should be physically broughtbefore the judge who must decide that issue ; there are still certain countries visited by theCPT where this does not occur. Bringing the person before the judge will provide a timelyCFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003165opportunity for a criminal suspect who has been ill-treated to lodge a complaint. Further, evenin the absence <strong>of</strong> an express complaint, the judge will be able to take action in good time ifthere are other indications <strong>of</strong> ill-treatment (e.g. visible injuries; a person's general appearanceor demeanour).Naturally, the judge must take appropriate steps when there are indications that ill-treatmentby the police may have occurred. In this regard, whenever criminal suspects brought before ajudge at the end <strong>of</strong> police custody allege ill-treatment, the judge should record the allegationsin writing, order immediately a forensic medical examination and take the necessary steps toensure that the allegations are properly investigated. Such an approach should be followedwhether or not the person concerned bears visible external injuries.Further, even in the absence <strong>of</strong> an express allegation <strong>of</strong> ill-treatment, the judge should requesta forensic medical examination whenever there are other grounds to believe that a personbrought before him could have been the victim <strong>of</strong> ill-treatment.The diligent examination by judicial and other relevant authorities <strong>of</strong> all complaints <strong>of</strong> illtreatmentby law enforcement <strong>of</strong>ficials and, where appropriate, the imposition <strong>of</strong> a suitablepenalty will have a strong deterrent effect. Conversely, if those authorities do not takeeffective action upon complaints referred to them, law enforcement <strong>of</strong>ficials minded to illtreatpersons in their custody will quickly come to believe that they can do so with impunity.46. Additional questioning by the police <strong>of</strong> persons remanded to prison may on occasionbe necessary. The CPT is <strong>of</strong> the opinion that from the standpoint <strong>of</strong> the prevention <strong>of</strong> illtreatment,it would be far preferable for such questioning to take place within the prisonestablishment concerned rather than on police premises. The return <strong>of</strong> remand prisoners topolice custody for further questioning should only be sought and authorised when it isabsolutely unavoidable. It is also axiomatic that in those exceptional circumstances where aremand prisoner is returned to the custody <strong>of</strong> the police, he/she should enjoy the three rightsreferred to in paragraphs 40 to 43.47. Police custody is (or at least should be) <strong>of</strong> relatively short duration. Nevertheless,conditions <strong>of</strong> detention in police cells must meet certain basic requirements. All police cellsshould be clean and <strong>of</strong> a reasonable size for the number <strong>of</strong> persons they are used toaccommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periodsexcluded) ; preferably cells should enjoy natural light. Further, cells should be equipped witha means <strong>of</strong> rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custodyshould be provided with a clean mattress and clean blankets. Persons in police custody shouldhave access to a proper toilet facility under decent conditions, and be <strong>of</strong>fered adequate meansto wash themselves. They should have ready access to drinking water and be given food atappropriate times , including at least one full meal (i.e. something more substantial than asandwich) every day. Persons held in police custody for 24 hours or more should, as far aspossible , be <strong>of</strong>fered outdoor exercise every day.Many police detention facilities visited by CPT delegations do not comply with these minimalstandards. This is particularly detrimental for persons who subsequently appear before ajudicial authority ; all too frequently persons are brought before a judge after spending one ormore days in substandard and filthy cells, without having been <strong>of</strong>fered appropriate rest andfood and an opportunity to wash.48. The duty <strong>of</strong> care which is owed by the police to persons in their custody includes theresponsibility to ensure their safety and physical integrity. It follows that the propermonitoring <strong>of</strong> custody areas is an integral component <strong>of</strong> the duty <strong>of</strong> care assumed by thepolice. Appropriate steps must be taken to ensure that persons in police custody are always ina position to readily enter into contact with custodial staff.On a number <strong>of</strong> occasions CPT delegations have found that police cells were far removedfrom the <strong>of</strong>fices or desks where police <strong>of</strong>ficers are normally present, and were also devoid <strong>of</strong>any means (e.g. a call system) enabling detained persons to attract the attention <strong>of</strong> a police<strong>of</strong>ficer. Under such conditions, there is considerable risk that incidents <strong>of</strong> various kinds(violence among detainees; suicide attempts; fires etc.) will not be responded to in good time.49. The CPT has also expressed misgivings as regards the practice observed in certaincountries <strong>of</strong> each operational department (narcotics, organised crime, anti-terrorism) in aCFR-CDF.rep.UE.2003.en

166EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSpolice establishment having its own detention facility staffed by <strong>of</strong>ficers from thatdepartment. The Committee considers that such an approach should be discarded in favour <strong>of</strong>a central detention facility, staffed by a distinct corps <strong>of</strong> <strong>of</strong>ficers specifically trained for such acustodial function. This would almost certainly prove beneficial from the standpoint <strong>of</strong> theprevention <strong>of</strong> ill-treatment. Further, relieving individual operational departments <strong>of</strong> custodialduties might well prove advantageous from the management and logistical perspectives.50. Finally, the inspection <strong>of</strong> police establishments by an <strong>independent</strong> authority can makean important contribution towards the prevention <strong>of</strong> ill-treatment <strong>of</strong> persons held by the policeand, more generally, help to ensure satisfactory conditions <strong>of</strong> detention. To be fully effective,visits by such an authority should be both regular and unannounced, and the authorityconcerned should be empowered to interview detained persons in private. Further, it shouldexamine all issues related to the treatment <strong>of</strong> persons in custody: the recording <strong>of</strong> detention;information provided to detained persons on their rights and the actual exercise <strong>of</strong> those rights(in particular the three rights referred to in paragraphs 40 to 43); compliance with rulesgoverning the questioning <strong>of</strong> criminal suspects; and material conditions <strong>of</strong> detention.The findings <strong>of</strong> the above-mentioned authority should be forwarded not only to the police butalso to another authority which is <strong>independent</strong> <strong>of</strong> the police.It would also be useful to identify the norms specifically applicable to situations where certainpressures could be exercised on a detained person to convince him/her to accept a transactionproposed by the prosecuting authorities, the recognition <strong>of</strong> guilt, accompanied by the payment<strong>of</strong> a transactory fee, resulting in the abandonment <strong>of</strong> the prosecution. The circumstances facedby particularly vulnerable persons are adequately taken into account by the Green Paper, forinstance with respect to persons who have young children in care or other persons who couldbe tempted to agree to any proposal which could shorten the time in custody (see point 6.1.).However, the temptation to waive certain procedural guarantees against an undertaking by theauthorities that there will be no criminal prosecution, even if this leads the accused person tomake statements recognizing that he or she has committed the <strong>of</strong>fences and to pay atransactory fee, raises questions – relating to the conditions under which a person may validlyrenounce the right to have access to a court – which do not concern only the members <strong>of</strong>vulnerable categories 493 .The Green Paper presented by the Commission adequately deals with the compliance withthe common minimal standards and the issue <strong>of</strong> monitoring the practice <strong>of</strong> State authorities;as well as with the sanctions which, possibly, could be adopted where it is found that thesenorms are not complied with by a Member State. The reflection on this issue must clearlydistinguish between 1° the adoption by the national authorities <strong>of</strong> general measures ensuring,for instance, that a Framework Decision listing the minimal guarantees recognized to suspectsand defendants in criminal proceedings, and 2° the practice <strong>of</strong> national authorities. Thepractice should conform to those general measures; this however may not always be the case.It is clear that a Network <strong>of</strong> Independent Experts composed <strong>of</strong> one expert per Member State isnot sufficiently well equipped to monitor compliance with the minimal norms as identified inthe Green Paper in all individual cases. Such a <strong>network</strong> however – such as the EU Network<strong>of</strong> Independent Experts on Fundamental Rights – could usefully contribute to the monitoring<strong>of</strong> compliance by fulfilling two tasks at the first level : it could examine whether the generalmeasures required for the implementation <strong>of</strong> the minimal norms defined in EU Law have beenadopted, and, for instance, have been made widely known to the competent authorities, andwhether the required executing measures have been adopted; and it could systematicallyexamine, using the list <strong>of</strong> rights identified as a common concern at EU level, the findingswhich have been made concerning the particular Member States by international jurisdictionsor organs, such as the European Court <strong>of</strong> Human Rights or the CPT. A monitoring in that493 We may refer to the discussion <strong>of</strong> this issue by Advocate General Ruiz-Jarabo Colomer, in his Opinion <strong>of</strong> 19September 2002, preceding the judgment <strong>of</strong> the Court in Gözutok and Brügge, commented hereafter under Article50 <strong>of</strong> the Charter.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003167form remains <strong>of</strong> course at a general level. It would not suffice to bring to the attention <strong>of</strong> theUnion all individual situations where the rights included in the list <strong>of</strong> minimal norms areviolated. However, this is primarily a task for the national jurisdictions to perform. Quiteapart from the question <strong>of</strong> subsidiarity, a monitoring by an EU instance which would dealwith individual cases would add little value, if any at all, to the mechanisms existing at thenational level.With respect to sanctions, the Green Paper rightly identifies the need to devise a reaction inthe presence <strong>of</strong> “persistent breaches not serious enough to fall within the ambit <strong>of</strong> Article 7EU” (point 9.4.) or, mutatis mutandis, under that <strong>of</strong> Article 39 <strong>of</strong> the Accession Treaty <strong>of</strong> 16April 2003. It may be said that, where the evaluation conducted at a general level identifies afailure by a Member State to meet its obligations in this context, the judicial authorities <strong>of</strong>another Member State would be justified in refusing to execute the European Arrest Warrantand, therefore, in refusing to surrender a wanted person. Article 1(3) <strong>of</strong> the 13 June 2002Framework Decision on the European Arrest Warrant would appear to justify such a refusal.This however does not compensate for the lacunae <strong>of</strong> the current Title VI <strong>of</strong> the Treaty on theEuropean Union, concerning the procedures available for sanctioning the failure by a memberState to comply with its obligations as defined in an instrument adopted under this Title.Article 49. Principles <strong>of</strong> legality and proportionality <strong>of</strong> criminal <strong>of</strong>fences and penaltiesThe Introduction to the present report indicates (under II.3) several courses that are open tothe European legislator in order to prevent more effectively infringements <strong>of</strong> fundamentalrights in the area <strong>of</strong> application <strong>of</strong> Community law. Furthermore, the Introduction emphasizesthat, where prevention has failed, the Commission must treat the infringement <strong>of</strong> Communitylaw resulting from a violation <strong>of</strong> fundamental rights committed in the implementation <strong>of</strong>Community law as a trivial hypothesis <strong>of</strong> a failure by a State in the obligations imposed on itby Community law, liable to give rise to infringement proceedings. In this context, attentionshould be drawn to the special difficulty posed by the transposition <strong>of</strong> Community directives,particularly Framework Directives. On the one hand, there is a risk that the domestic statutewhich operates the transposition <strong>of</strong> the directive into domestic law reproduces itsformulations, even where they are general or vague, to the detriment <strong>of</strong> the legality principle.Member States are obliged not to restrict the scope <strong>of</strong> the directive in the transpositionthere<strong>of</strong>, while at the same time ensuring the transposition in sufficiently precise terms toavoid the criticism <strong>of</strong> undermining the legality principle. It is not always easy to strike theright balance here 494 .On the other hand, the Directives generally leave Member States the choice <strong>of</strong> appropriatesanctions to ensure the application <strong>of</strong> the directive in full, although those sanctions must beeffective, proportional and dissuasive, according to the formula which the Court <strong>of</strong> Justice hasestablished and which the European legislator has adopted. Member States must respect thisrequirement <strong>of</strong> effectiveness, while at the same time bearing in mind the principle <strong>of</strong>proportionality <strong>of</strong> sanctions: this is the second dilemma they face. In its judgment <strong>of</strong> 6November 2003, the Court <strong>of</strong> Justice was led to emphasize, “Whilst it is true that theprotection <strong>of</strong> private life requires the application <strong>of</strong> effective sanctions against peopleprocessing personal data in ways inconsistent with Directive 95/46 [ 495 ], such sanctions mustalways respect the principle <strong>of</strong> proportionality. That is so a fortiori since the scope <strong>of</strong>494 See Eur. Ct. H.R., Cantoni v. France, judgment <strong>of</strong> 15 November 1996, Rec. 1996-V (absence <strong>of</strong> violation <strong>of</strong>Article 7 <strong>of</strong> the European Convention on Human Rights, despite the alleged imprecision <strong>of</strong> Article L. 511 <strong>of</strong> thePublic Health Code ensuring the transposition into French law <strong>of</strong> Directive (EEC) 65/65 <strong>of</strong> 26 January 1965 (OJ L369 <strong>of</strong> 9/2/1965): the French law had simply copied the definition <strong>of</strong> “medicinal product” given by the Directive,despite the fact that these terms are relatively general, which made it necessary to seek advice in order to know theexact meaning <strong>of</strong> those terms).495 See Article 24 <strong>of</strong> Directive 95/46/EC.CFR-CDF.rep.UE.2003.en

168EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSDirective 95/46 is very wide and the obligations <strong>of</strong> those who process personal data are manyand significant” (Recital 88) 496 .So far, the issue <strong>of</strong> “improving legislative procedures” in Community law has been addressedessentially on the basis <strong>of</strong> the principles <strong>of</strong> subsidiarity and proportionality, and the necessity<strong>of</strong> catering to the diversity <strong>of</strong> contexts in which Community law has been called upon to beapplied, which <strong>of</strong>ten rules out making detailed legislation. Nevertheless, it is necessary toreflect on how to couple this - obviously important - concern with the requirement forMember States to respect fundamental rights, in particular Article 49 <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights, in the implementation <strong>of</strong> Community law.Article 50. Right not to be tried or punished twice in criminal proceedings for the samecriminal <strong>of</strong>fenceThe originality <strong>of</strong> Article 50 <strong>of</strong> the Charter, compared with Article 4 <strong>of</strong> Additional Protocoln°7 to the European Convention on Human Rights, lies in the extension to the EuropeanUnion <strong>of</strong> the ne bis in idem rule, which the latter Article only provides for within thejurisdiction <strong>of</strong> the same State. In the case <strong>of</strong> Gözutok and Brügge, in which the Court <strong>of</strong>Justice <strong>of</strong> the European Communities gave judgment on 11 February 2003 497 , two nationalcourts - German and Belgium - asked the Court whether the ne bis in idem principle enshrinedin Article 54 <strong>of</strong> the Convention implementing the Schengen Agreement <strong>of</strong> 14 June 1985between the Governments <strong>of</strong> the States <strong>of</strong> the Benelux Economic Union, the Federal Republic<strong>of</strong> Germany and the French Republic on the gradual abolition <strong>of</strong> checks at their commonborders 498 , also applied to procedures for the discontinuation <strong>of</strong> criminal proceedings withoutinvolvement <strong>of</strong> a court. Article 54 C.I.S.A. provides, “A person whose trial has been finallydisposed <strong>of</strong> in one Contracting Party may not be prosecuted in another Contracting Party forthe same acts provided that, if a penalty has been imposed, it has been enforced, is actually inthe process <strong>of</strong> being enforced or can no longer be enforced under the laws <strong>of</strong> the sentencingContracting Party.” In this case, a Turkish national residing in the Netherlands and working inGermany, Mr Gözütok, and a German national, Mr Brügge, had respectively accepted asettlement proposed by the Dutch public prosecutor, and another proposed by the Germanpublic prosecutor. Nevertheless, they had been prosecuted for the same <strong>of</strong>fences before aGerman court (Mr Gözütok) and a Belgian court (Mr Brügge), which led to the referrals for apreliminary ruling. Considering that the procedure for the discontinuation <strong>of</strong> criminalproceedings through a settlement proposed by the public prosecutor involves a decision by“an authority required to play a part in the administration <strong>of</strong> criminal justice in the nationallegal system concerned” (Recital 28), and penalizes the unlawful conduct which the accusedis alleged to have committed by imposing on him certain obligations such as the payment <strong>of</strong> afine (Recital 29), the Court replies affirmatively to the question <strong>of</strong> interpretation <strong>of</strong> Article 54<strong>of</strong> the Convention implementing the Schengen Agreement. The Court consequently infers anobligation <strong>of</strong> mutual recognition <strong>of</strong> decisions entailing the discontinuation <strong>of</strong> criminalproceedings from the right not to be tried or punished twice for the same <strong>of</strong>fence. The lack <strong>of</strong>harmonization <strong>of</strong> the criminal laws <strong>of</strong> the Member States in procedures for thediscontinuation <strong>of</strong> criminal proceedings forms no obstacle to this. The Court finds that theeffect <strong>of</strong> Article 45 <strong>of</strong> the Convention implementing the Schengen Agreement (C.I.S.A.) isnot dependent on a harmonization or approximation <strong>of</strong> the criminal laws <strong>of</strong> the MemberStates (Recital 32). The Court infers from this (in Recital 33 <strong>of</strong> the judgment):496 For example, according to the Court, “It is for the referring court to take account, in accordance with theprinciple <strong>of</strong> proportionality, <strong>of</strong> all the circumstances <strong>of</strong> the case before it, in particular the duration <strong>of</strong> the breach <strong>of</strong>the rules implementing Directive 95/46 and the importance, for the persons concerned, <strong>of</strong> the protection <strong>of</strong> the datadisclosed” (Recital 89).497 ECJ, 11 February 2003, Gözutok and Brügge, joined cases C-187/01 and C-385/01, not yet published.498 OJ L 239, 22/9/2000, p. 19.CFR-CDF.rep.UE.2003.en

FUNDAMENTAL RIGHTS IN THE EU IN 2003169In those circumstances, whether the ne bis in idem principle enshrined in Article 54 <strong>of</strong>the CISA is applied to procedures whereby further prosecution is barred (regardless <strong>of</strong>whether a court is involved) or to judicial decisions, there is a necessary implicationthat the Member States have mutual trust in their criminal justice systems and thateach <strong>of</strong> them recognises the criminal law in force in the other Member States evenwhen the outcome would be different if its own national law were applied.The Court derives this broad interpretation <strong>of</strong> the terms <strong>of</strong> Article 54 <strong>of</strong> the CISA from thegeneral framework in which this provision is situated, namely that <strong>of</strong> enhancing Europeanintegration by maintaining and developing the Union as an area <strong>of</strong> freedom, security andjustice (Recitals 35 to 37). The Court notes that it would be paradoxical to make theobligation <strong>of</strong> mutual recognition <strong>of</strong> decisions to discontinue criminal proceedings subject onlyto decisions taking the form <strong>of</strong> judgments or decisions adopted by the courts: such arestrictive interpretation would in fact mean that the perpetrators <strong>of</strong> more serious <strong>of</strong>fences, forwhich in any case court action is required, would enjoy greater freedom <strong>of</strong> movement thanperpetrators <strong>of</strong> minor <strong>of</strong>fences, with respect to whom only the public prosecutor can decide tomake a settlement.The obligation <strong>of</strong> mutual recognition <strong>of</strong> decisions taken by the authorities <strong>of</strong> another MemberState is limited by the respect for the fundamental rights, whether they be the rights <strong>of</strong> theaccused or those <strong>of</strong> the civil parties 499 . As concerns the accused, it should be remembered thatin the case <strong>of</strong> a blatant disproportion between the punishment which the accused risks beinggiven following criminal proceedings leading to a conviction, on the one hand, and thesettlement that is proposed to him on the other hand, the consent <strong>of</strong> the accused may bevitiated, and thus his waiver <strong>of</strong> his right to have his case tried before a court consideredinvalid 500 . The recognition <strong>of</strong> a settlement that has been reached in another Member State andthat discontinues the criminal proceedings is based on the assumption that the consent <strong>of</strong> theaccused has been validly obtained. This does not mean that the ne bis in idem rule should bedismissed in such an assumption, since the institution <strong>of</strong> criminal proceedings in anotherMember State does not compensate for the damage suffered in the first Member State, but onthe contrary aggravates it. If the case arises, it will be up to the accused to assert before theEuropean Court <strong>of</strong> Human Rights that his right <strong>of</strong> access to justice has been infringed onaccount <strong>of</strong> the circumstances in which the criminal proceedings were discontinued and <strong>of</strong> theconsequences that resulted for him.As concerns the rights <strong>of</strong> the victims, it should be remembered that the European Conventionon Human Rights does not guarantee for the victim the right to have a criminal convictionobtained against the perpetrator <strong>of</strong> the <strong>of</strong>fence that caused damage to him, but only that <strong>of</strong>receiving compensation for that damage, and to the extent <strong>of</strong> having access to a competentcourt in order to justify his claim for compensation 501 . In response to an argument raised bythe Belgian government according to which a decision to discontinue criminal proceedingsfollowing a settlement can only be classed as a final judgment justifying the application <strong>of</strong> the499 Eur. Ct. H.R., Pellegrini v. Italy, judgment <strong>of</strong> 20 July 2001, application n° 30882/96, § 40. See the opinion <strong>of</strong>Mr Advocate General Ruiz-Jarabo Colomer <strong>of</strong> 19 September 2002, preceding the Gözutok and Brügge judgment,particularly §§ 92-94 <strong>of</strong> the opinions.500 Eur. Ct. H.R., Deweer v. Belgium, judgment <strong>of</strong> 27 February 1980, Series A n° 35. With reference to the latterdecision, Mr Advocate General Ruiz-Jarabo Colomer notes, in Recital 95 <strong>of</strong> his opinions, “The freedom to acceptor refuse the settlement is fundamental. At first sight, one might doubt the existence there<strong>of</strong>, since the accusedmust in fact accept the proposal <strong>of</strong> the public prosecutor if he is to avoid criminal prosecution. Nevertheless, thiscircumstance does not vitiate his consent ins<strong>of</strong>ar as the threat <strong>of</strong> instituting certain proceedings is admissible if themeans used and the objective pursued are legitimate.”501 While the civil party cannot claim the benefit <strong>of</strong> Article 6 <strong>of</strong> the Convention when its only aim is to obtain theconviction <strong>of</strong> the person who committed the <strong>of</strong>fence that caused damage to the civil party, it can nevertheless do soif its action is aimed at securing monetary compensation and the outcome <strong>of</strong> the criminal proceedings is a directlydetermining factor for civil rights and obligations. See Eur. Ct. H.R., Tomasi v. France, judgment <strong>of</strong> 27 August1992; Acquaviva v. France, judgment <strong>of</strong> 21 November 1995; Hamer v. France, judgment <strong>of</strong> 7 August 1996.CFR-CDF.rep.UE.2003.en

170EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSne bis in idem principle on the prior condition that the rights <strong>of</strong> the victim have been dulysafeguarded, the Court notes that the said principle “does not preclude the victim or any otherperson harmed by the accused's conduct from bringing a civil action to seek compensation forthe damage suffered” (Recital 47).Greece has proposed the adoption <strong>of</strong> a new Framework Decision, the aim <strong>of</strong> which is touniformize both the interpretation and the practical implementation <strong>of</strong> the "ne bis in idem"principle 502 . The legal basis <strong>of</strong> this instrument would be Articles 29, 31(d) and 34(2)(b) EU. Itwill replace Articles 54 to 58 <strong>of</strong> the Convention implementing the Schengen Agreement.Article 1, b), <strong>of</strong> the proposed Framework Decision defines a "judgment" as « any finaljudgment delivered by a criminal court in a Member State as the outcome <strong>of</strong> criminalproceedings, convicting or acquitting the defendant or definitively terminating theprosecution, in accordance with the national law <strong>of</strong> each Member State, and also anyextrajudicial mediated settlement in a criminal matter; any decision which has the status <strong>of</strong>res judicata under national law shall be considered a final judgment ». This takes into accountthe extended interpretation given to the rule <strong>of</strong> ne bis in idem by the European Court <strong>of</strong>Justice.502 Initiative <strong>of</strong> the Hellenic Republic with a view to adopting a Council Framework Decision concerning theapplication <strong>of</strong> the "ne bis in idem" principle, OJ C 100 , 26/4/2003, p. 24.CFR-CDF.rep.UE.2003.en

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E.U. NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS(CFR-CDF)RÉSEAU U.E. D’EXPERTS INDÉPENDANTS EN MATIÈRE DE DROITS FONDAMENTAUXSYNTHESIS REPORT :CONCLUSIONS AND RECOMMENDATIONS ON THE SITUATION OFFUNDAMENTAL RIGHTS IN THE EUROPEAN UNION AND ITS MEMBERSTATES IN 20034 February 2004Reference : CFR-CDF.conclusions.2003.enCE DOCUMENT EST ÉGALEMENT DISPONIBLE EN FRANÇAIS.The E.U. Network <strong>of</strong> Independent Experts on Fundamental Rights has been set up by the European Commissionupon request <strong>of</strong> the European Parliament. It monitors the situation <strong>of</strong> fundamental rights in the Member States andin the Union, on the basis <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. It issues reports on the situation <strong>of</strong> fundamentalrights in the Member States and in the Union, as well as opinions on specific issues related to the protection <strong>of</strong>fundamental rights in the Union. The content <strong>of</strong> these conclusions does not bind the European Commission. TheCommission accepts no liability whatsoever with regard to the information contained in this document.

Le Réseau UE d’Experts indépendants en matière de droits fondamentaux a été mis surpied par la Commission <strong>eu</strong>ropéenne (DG Justice et affaires intéri<strong>eu</strong>res), à la demande duParlement <strong>eu</strong>ropéen. Depuis 2002, il assure le suivi de la situation des droits fondamentauxdans les Etats membres et dans l’Union, sur la base de la Charte des droits fondamentaux del’Union <strong>eu</strong>ropéenne. Chaque Etat membre fait l’objet d’un rapport établi par un expert sous sapropre responsabilité, selon un canevas commun qui facilite la comparaison des donnéesrecueillies sur les différents Etats membres. Les activités des institutions de l’Union<strong>eu</strong>ropéenne font l’objet d’un rapport distinct, établi par le coordinat<strong>eu</strong>r. Sur la base del’ensemble de ces (26) rapports, les membres du Réseau identifient les principalesconclusions et recommandations qui se dégagent de l’année écoulée. Ces conclusions etrecommandation sont réunies dans un Rapport de synthèse, qui est remis aux institutions<strong>eu</strong>ropéennes. Le contenu du rapport n’engage en aucune manière l’institution qui en est lecommanditaire.Le Réseau UE d’Experts indépendants en matière de droits fondamentaux se compose deElvira Baltutyte (Lithuanie), Florence Benoît-Rohmer (France), Martin Buzinger (Rép.slovaque), Achilleas Demetriades (Chypre), Olivier De Schutter (Belgique), Maja Eriksson(Suède), Teresa Freixes (Espagne), Gabor Halmai (Hongrie), Wolfgang Heyde (Allemagne),Morten Kjaerum (Danemark), Henri Labayle (France), M. Rick Lawson (Pays-Bas), LauriMalksoo (Estonie), Arne Mavcic (Slovénie), Vital Moreira (Portugal), Jeremy McBride(Royaume-Uni), Bruno Nascimbene (Italie), Manfred Nowak (Autriche), Marek AntoniNowicki (Pologne), Donncha O’Connell (Irlande), Ian Refalo (Malte), Martin Scheinin(suppléant Tuomas Ojanen) (Finlande), Linos Alexandre Sicilianos (Grèce), Dean Spielmann(Luxembourg), Pavel Sturma (Rép. tchèque), Ineta Ziemele (Lettonie). Le Réseau estcoordonné par O. De Schutter, assisté par V. Verbruggen.Les documents du Réseau p<strong>eu</strong>vent être consultés via :http://www.<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/justice_home/cfr_cdf/index_fr.htmThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights has been set up by theEuropean Commission (DG Justice and Home Affairs), upon request <strong>of</strong> the EuropeanParliament. Since 2002, it monitors the situation <strong>of</strong> fundamental rights in the Member Statesand in the Union, on the basis <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. A Report is prepared oneach Member State, by a Member <strong>of</strong> the Network, under his/her own responsibility. Theactivities <strong>of</strong> the institutions <strong>of</strong> the European Union are evaluated in a separated report,prepared for the Network by the coordinator. On the basis <strong>of</strong> these (26) Reports, the members<strong>of</strong> the Network prepare a Synthesis Report, which identifies the main areas <strong>of</strong> concern andmakes certain recommendations. The conclusions and recommendations are submitted to theinstitutions <strong>of</strong> the Union. The content <strong>of</strong> the Report is not binding on the institutions.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights is composed <strong>of</strong> ElviraBaltutyte (Lithuania), Florence Benoît-Rohmer (France), Martin Buzinger (Slovak Republic),Achilleas Demetriades (Cyprus), Olivier De Schutter (Belgium), Maja Eriksson (Sweden),Teresa Freixes (Spain), Gabor Halmai (Hungary), Wolfgang Heyde (Germany), MortenKjaerum (Denmark), Henri Labayle (France), M. Rick Lawson (the Netherlands), LauriMalksoo (Estonia), Arne Mavcic (Slovenia), Vital Moreira (Portugal), Jeremy McBride(United Kingdom), Bruno Nascimbene (Italy), Manfred Nowak (Austria), Marek AntoniNowicki (Poland), Donncha O’Connell (Ireland), Ian Refalo (Malta), Martin Scheinin(substitute Tuomas Ojanen) (Finland), Linos Alexandre Sicilianos (Greece), Dean Spielmann(Luxemburg), Pavel Sturma (Czeck Republic), Ineta Ziemele (Latvia). The Network iscoordinated by O. De Schutter, with the assistance <strong>of</strong> V. Verbruggen.The documents <strong>of</strong> the Network may be consulted on :http://www.<strong>eu</strong>ropa.<strong>eu</strong>.int/comm/justice_home/cfr_cdf/index_en.htm

CONTENTSEXPLANATORY NOTE.......................................................................................................... 9CHAPTER I : DIGNITY......................................................................................................... 13Article 1. Human dignity..................................................................................................... 13Article 2. Right to life.......................................................................................................... 13State <strong>of</strong> ratifications ........................................................................................................ 13Areas <strong>of</strong> concern.............................................................................................................. 13Positive aspects and good practices................................................................................ 15Article 3. Right to the integrity <strong>of</strong> the person...................................................................... 15State <strong>of</strong> ratifications ........................................................................................................ 15Areas <strong>of</strong> concern.............................................................................................................. 15Positive aspects and good practices................................................................................ 16Article 4. Prohibition <strong>of</strong> torture and inhuman or degrading treatment or punishment ........ 16State <strong>of</strong> ratifications ........................................................................................................ 16Areas <strong>of</strong> concern.............................................................................................................. 17Positive aspects and good practices................................................................................ 19Article 5. Prohibition <strong>of</strong> slavery and forced labor ............................................................... 20State <strong>of</strong> ratifications ........................................................................................................ 20Areas <strong>of</strong> concern.............................................................................................................. 21Positive aspects and good practices................................................................................ 22CHAPTER II : FREEDOMS................................................................................................... 23Article 6. Right to liberty and security ................................................................................ 23State <strong>of</strong> ratifications ........................................................................................................ 23Areas <strong>of</strong> concern.............................................................................................................. 23Positive aspects and good practices................................................................................ 27Article 7. Respect for private and family life ...................................................................... 28State <strong>of</strong> ratifications ........................................................................................................ 28Areas <strong>of</strong> concern.............................................................................................................. 28Positive aspects and good practices................................................................................ 31Article 8. Protection <strong>of</strong> personal data .................................................................................. 32State <strong>of</strong> ratifications ........................................................................................................ 32Areas <strong>of</strong> concern.............................................................................................................. 33Positive aspects and good practices................................................................................ 35Article 9. Right to marry and right to found a family.......................................................... 36State <strong>of</strong> ratifications ........................................................................................................ 36Areas <strong>of</strong> concern.............................................................................................................. 36Positive aspects and good practices................................................................................ 37Article 10. Freedom <strong>of</strong> thought, conscience and religion.................................................... 38State <strong>of</strong> ratifications ........................................................................................................ 38Areas <strong>of</strong> concern.............................................................................................................. 38Article 11. Freedom <strong>of</strong> expression and <strong>of</strong> information........................................................ 39State <strong>of</strong> ratifications ........................................................................................................ 39Areas <strong>of</strong> concern.............................................................................................................. 39Positive aspects and good practices................................................................................ 41Article 12. Freedom <strong>of</strong> assembly and <strong>of</strong> association........................................................... 42State <strong>of</strong> ratifications ........................................................................................................ 42Areas <strong>of</strong> concern.............................................................................................................. 43Positive aspects and good practices................................................................................ 43Article 13. Freedom <strong>of</strong> the arts and sciences....................................................................... 44State <strong>of</strong> ratifications ........................................................................................................ 44Areas <strong>of</strong> concern.............................................................................................................. 44

6EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSArticle 14. Right to education ............................................................................................. 44State <strong>of</strong> ratifications ........................................................................................................ 44Areas <strong>of</strong> concern.............................................................................................................. 45Positive aspects and good practices................................................................................ 46Article 15. Freedom to choose an occupation and right to engage in work ........................ 47State <strong>of</strong> ratifications ........................................................................................................ 47Areas <strong>of</strong> concern.............................................................................................................. 48Positive aspects and good practices................................................................................ 49Article 16. Freedom to conduct a business.......................................................................... 49Article 17. Right to property ............................................................................................... 49State <strong>of</strong> ratifications ........................................................................................................ 49Areas <strong>of</strong> concern.............................................................................................................. 50Positive aspects and good practices................................................................................ 50Article 18. Right to asylum ................................................................................................. 50State <strong>of</strong> ratifications ........................................................................................................ 50Areas <strong>of</strong> concern.............................................................................................................. 51Positive aspects and good practices................................................................................ 55Article 19. Protection in the event <strong>of</strong> removal, expulsion or extradition............................. 55State <strong>of</strong> ratifications ........................................................................................................ 55Areas <strong>of</strong> concern.............................................................................................................. 56Positive aspects and good practices................................................................................ 58CHAPTER III : EQUALITY................................................................................................... 58Article 20. Equality before the law...................................................................................... 58State <strong>of</strong> ratifications ........................................................................................................ 58Areas <strong>of</strong> concern.............................................................................................................. 59Article 21. Non-discrimination............................................................................................ 59State <strong>of</strong> ratifications ........................................................................................................ 59Areas <strong>of</strong> concern.............................................................................................................. 60Positive aspects and good practices................................................................................ 65Article 22. Cultural, religious and linguistic diversity ........................................................ 66State <strong>of</strong> ratifications ........................................................................................................ 66Areas <strong>of</strong> concern.............................................................................................................. 67Positive aspects and good practices................................................................................ 67Article 23. Equality between man and women.................................................................... 68State <strong>of</strong> ratifications ........................................................................................................ 68Areas <strong>of</strong> concern.............................................................................................................. 69Positive aspects and good practices................................................................................ 70Article 24. The rights <strong>of</strong> the child ....................................................................................... 70State <strong>of</strong> ratifications ........................................................................................................ 70Areas <strong>of</strong> concern.............................................................................................................. 71Positive aspects and good practices................................................................................ 71Article 25. The rights <strong>of</strong> the elderly .................................................................................... 71State <strong>of</strong> ratifications ........................................................................................................ 71Areas <strong>of</strong> concern.............................................................................................................. 72Positive aspects and good practices................................................................................ 72Article 26. Integration <strong>of</strong> persons with disabilities.............................................................. 73State <strong>of</strong> ratifications ........................................................................................................ 73Areas <strong>of</strong> concern.............................................................................................................. 73Positive aspects and good practices................................................................................ 74CHAPTER IV : SOLIDARITY............................................................................................... 75Article 27. Worker’s right to information and consultation within the undertaking ........... 75State <strong>of</strong> ratifications ........................................................................................................ 75Positive aspects and good practices................................................................................ 76CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 20037Article 28. Right <strong>of</strong> collective bargaining and action.......................................................... 76State <strong>of</strong> ratifications ........................................................................................................ 76Areas <strong>of</strong> concern.............................................................................................................. 77Article 29. Right <strong>of</strong> access to placement services ............................................................... 79State <strong>of</strong> ratifications ........................................................................................................ 79Areas <strong>of</strong> concern.............................................................................................................. 80Article 30. Protection in the event <strong>of</strong> unjustified dismissal................................................. 80State <strong>of</strong> ratifications ........................................................................................................ 80Areas <strong>of</strong> concern.............................................................................................................. 80Article 31. Fair and just working conditions ....................................................................... 81State <strong>of</strong> ratifications ........................................................................................................ 81Areas <strong>of</strong> concern.............................................................................................................. 82Positive aspects and good practices................................................................................ 83Article 32. Prohibition <strong>of</strong> child labor and protection <strong>of</strong> young people at work................... 83State <strong>of</strong> ratifications ........................................................................................................ 83Areas <strong>of</strong> concern.............................................................................................................. 84Positive aspects and good practices................................................................................ 85Article 33. Family and pr<strong>of</strong>essional life .............................................................................. 85State <strong>of</strong> ratifications ........................................................................................................ 85Areas <strong>of</strong> concern.............................................................................................................. 85Article 34. Social security and social assistance ................................................................. 86State <strong>of</strong> ratifications ........................................................................................................ 86Areas <strong>of</strong> concern.............................................................................................................. 86Article 35. Health care.........................................................................................................87State <strong>of</strong> ratifications ........................................................................................................ 87Areas <strong>of</strong> concern.............................................................................................................. 87Article 36. Access to services <strong>of</strong> general economic interest ............................................... 88State <strong>of</strong> ratifications ........................................................................................................ 88Areas <strong>of</strong> concern.............................................................................................................. 88Article 37. Environmental protection .................................................................................. 89State <strong>of</strong> ratifications ........................................................................................................ 89Areas <strong>of</strong> concern.............................................................................................................. 89Article 38. Consumer protection ......................................................................................... 89CHAPTER V : CITIZEN’S RIGHTS ..................................................................................... 90Article 39. Right to vote and to stand as a candidate at elections to the EuropeanParliament ........................................................................................................ 90State <strong>of</strong> ratifications ........................................................................................................ 90Areas <strong>of</strong> concern.............................................................................................................. 90Positive aspects and good practices................................................................................ 90Article 40. Right to vote and to stand as a candidate at municipal elections....................... 91State <strong>of</strong> ratifications ........................................................................................................ 91Areas <strong>of</strong> concern and Positive aspects ............................................................................ 91Article 41. Right to good administration............................................................................. 91State <strong>of</strong> ratifications ........................................................................................................ 91Areas <strong>of</strong> concern and Positive aspects ............................................................................ 91Article 42. Right <strong>of</strong> access to documents ............................................................................ 91Article 43. Ombudsman....................................................................................................... 91State <strong>of</strong> ratifications ........................................................................................................ 91Areas <strong>of</strong> concern and Positive aspects ............................................................................ 92Article 44. Right to petition................................................................................................. 92Article 45. Freedom <strong>of</strong> movement and <strong>of</strong> residence ........................................................... 92State <strong>of</strong> ratifications ........................................................................................................ 92Areas <strong>of</strong> concern.............................................................................................................. 92Article 46. Diplomatic and consular protection................................................................... 93CFR-CDF.Conclusions.2003.en

8EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSCHAPTER VI : JUSTICE ....................................................................................................... 93Article 47. Right to an effective remedy and to a fair trial.................................................. 93State <strong>of</strong> ratifications ........................................................................................................ 93Areas <strong>of</strong> concern.............................................................................................................. 94Positive aspects and good practices................................................................................ 96Article 48. Presumption <strong>of</strong> innocence and right <strong>of</strong> defence ................................................ 97State <strong>of</strong> ratifications ........................................................................................................ 97Areas <strong>of</strong> concern.............................................................................................................. 97Positive aspects and good practices................................................................................ 98Article 49. Principles <strong>of</strong> legality and proportionality <strong>of</strong> criminal <strong>of</strong>fences and penalties ... 99State <strong>of</strong> ratifications ........................................................................................................ 99Areas <strong>of</strong> concern.............................................................................................................. 99Article 50. Right not to be tried or punished twice in criminal proceedings for the samecriminal <strong>of</strong>fence ............................................................................................. 100State <strong>of</strong> ratifications ...................................................................................................... 100Areas <strong>of</strong> concern............................................................................................................ 100ANNEXE 1............................................................................................................................ 101ANNEXE 2............................................................................................................................ 104ANNEXE 3............................................................................................................................ 106CFR-CDF.Conclusions.2003.en

EXPLANATORY NOTEThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights has examined the reportsprepared by the individual members <strong>of</strong> the Network on the situation <strong>of</strong> fundamental rights inthe 25 Member States <strong>of</strong> the Union 1 and on the activities <strong>of</strong> the institutions <strong>of</strong> the Union.These reports <strong>of</strong>fer an evaluation <strong>of</strong> the situation <strong>of</strong> fundamental rights in the Member Statesand in the Union in 2003, on the basis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights. The EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights has decided to highlight certainissues <strong>of</strong> particular concern, and to select a limited number <strong>of</strong> good practices in theimplementation <strong>of</strong> fundamental rights, on the basis <strong>of</strong> a comparative reading <strong>of</strong> these reports.For the purpose <strong>of</strong> these conclusions, “good practices” are defined as innovative answers toproblems in the implementation <strong>of</strong> fundamental rights which are faced by all or most <strong>of</strong> theMember States. These are identified in these conclusions because, when experimentedsuccessfully in one Member State, they could inspire similar answers in other Member States,launching a process <strong>of</strong> mutual learning which the European Parliament has sought toencourage when it requested the European Commission to set up the EU Network <strong>of</strong>Independent Experts on Fundamental Rights.In accordance with the communication which the Commission presented to the Council andthe European Parliament on Article 7 EU, “Respect for and promotion <strong>of</strong> the values on whichthe Union is based” 2 , certain recommendations are made to the institutions <strong>of</strong> the Union,either where the EU Network <strong>of</strong> Independent Experts on Fundamental Rights arrives at theconclusion that certain violations <strong>of</strong> fundamental rights or risks <strong>of</strong> such violation by MemberStates are serious enough to justify that the attention <strong>of</strong> the European Parliament be drawnupon them, as they could imperil the mutual trust on which Union policies are founded, whereit is found that certain initiatives taken by the EU in the limits <strong>of</strong> its attributed powers couldtruly add value to the protection <strong>of</strong> fundamental rights in the Union, or where the violationswhich are found to have occured in 2003 have their source in the law <strong>of</strong> the European Union,requiring that this situation be remedied.Article 51 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights limits the scope <strong>of</strong> application <strong>of</strong> the Charterto the institutions <strong>of</strong> the Union and to the Member States only in their implementation <strong>of</strong>Union law. However, the Charter also constitutes a catalogue <strong>of</strong> common values <strong>of</strong> theMember States <strong>of</strong> the Union. In that respect, the Charter may be taken into account in th<strong>eu</strong>nderstanding <strong>of</strong> Article 6(1) EU, to which Article 7 EU refers. In conformity with themandate it has received, the EU Network <strong>of</strong> Independent Experts in Fundamental Rightsconsiders the Charter as the most authoritative embodiment <strong>of</strong> these common values, onwhich its evaluation therefore may be based. This should not be seen as operating anextension <strong>of</strong> the scope <strong>of</strong> activities in which the Charter is legally binding, beyond the limitsclearly defined by Article 51 <strong>of</strong> the Charter.In adopting these conclusions, the EU Network <strong>of</strong> Independent Experts on FundamentalRights has relied essentially on the reports prepared by the individual members <strong>of</strong> theNetwork, although the findings made in the individual reports do not necessarily represent theviews <strong>of</strong> the Network as a whole and are presented under the sole responsibility <strong>of</strong> theindividual expert. In certain cases, outside sources known to the <strong>experts</strong> <strong>of</strong> the Network werealso relied upon. In particular, the Network has taken into account the information presentedby the non-governmental organisations which took part in the hearing organised by theNetwork on 16 October 2003 in the European Parliament, where that information could be1 In these conclusions, the reference to the “Member States” should be understood as referring also the countriesacceding to the European Union on 1 May 2004.2 COM (2003) 606 final, <strong>of</strong> 15.10.2003.

10EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS<strong>independent</strong>ly verified 3 . The principle according to which the situation <strong>of</strong> fundamental rightsin the Member States should be approached on a non-selective manner has been scrupulouslyadhered to. All <strong>experts</strong> have followed the same guidelines, which served to identify thelegislation or regulations, case-law or practice <strong>of</strong> national authorities which could beincompatible with the fundamental rights enumerated in the Charter, or which are positiveaspects or constitute good practices under the definition given above. However, where thepresent conclusions mention particular Member States, this cannot be construed as meaningthat similar problems do not occur in other jurisdictions : indeed, as the conclusions focus, asthe reports do, on the year 2003, problems which have not developed or emerged during thatperiod but may have been continuing since a longer period <strong>of</strong> time, will not be highlighted.The interpretation <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights is based on the explanationsprovided by the Presidium <strong>of</strong> the Convention entrusted with the elaboration <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights 4 , which the EU Network <strong>of</strong> Independent Experts on Fundamental Rightsconsiders as <strong>of</strong>fering a particularly authoritative reading <strong>of</strong> the Charter.Moreover, in accordance with Article 52(3) <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, theNetwork reads the provisions <strong>of</strong> the Charter which correspond to rights guaranteed by theConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms as having thesame meaning and the same scope <strong>of</strong> those rights, as interpreted by the European Court <strong>of</strong>Human Rights ; in certain cases, the provisions <strong>of</strong> the Charter however are recognized abroader scope, as confirmed by the second sentence <strong>of</strong> Article 52(3) <strong>of</strong> the Charter. TheNetwork also takes into account the fact that other provisions <strong>of</strong> the Charter have to be read inaccordance with the rights guaranteed in instruments adopted in the field <strong>of</strong> human rights inthe framework <strong>of</strong> the United Nations, the International Labour Organisation or the Council <strong>of</strong>Europe. Where this is the case, these provisions <strong>of</strong> the Charter are interpreted by taking intoaccount those instruments and the interpretation given to them in the international legal order.Finally, certain international instruments adopted in the field <strong>of</strong> human rights developguarantees equivalent to those <strong>of</strong> the Charter, widening the scope <strong>of</strong> the protection <strong>of</strong> therights <strong>of</strong> the individual or developing the procedural guarantees which are attached to theserights. The signature and ratification by the Member States <strong>of</strong> the Union <strong>of</strong> these instrumentswould ensure a minimal level <strong>of</strong> protection <strong>of</strong> the rights guaranteed in the EU Charter <strong>of</strong>Fundamental Rights throughout the Union 5 . Therefore the Network encourages the States tomake such ratifications or, if they have considered such ratification but rejected it, to explaintheir reasons for doing so and examine whether these explanations are still valid.These conclusions do not seek to be exhaustive on the domains covered by the individualreports. On the contrary, the conclusions select particular topics, which are felt to be <strong>of</strong>particular importance in the evaluation <strong>of</strong> the situation <strong>of</strong> fundamental rights in the Union in2003. Moreover, even on the issues they do cover, these conclusions do not repeat all thefindings and descriptions found in the individual reports, where they are detailed.Certain provisions <strong>of</strong> the Charter have not led to the adoption <strong>of</strong> conclusions by the Network.This is either because no significant developments occured during the year 2003 which is theperiod under scrutiny, or because the reports on the Member States and the European Union3 These non-governmental organisations were the following : International Federation <strong>of</strong> Human Rights Leagues(FIDH), European Association for Human Rights (FIDH-AE), World Organisation Against Torture (OMCT)Statewatch, Amnesty International (AI), Human Rights Watch (HRW), International Commission <strong>of</strong> Jurists (ICJ),European Trade Union Confederation (ETUC), International Movement ATD Fourth World (ATD), SocialPlatform, European Anti Poverty Network (EAPN), Fair Trials Abroad (FTA), European Women’s Lobby (EWL),European Children’s Network (EURONET), European Roma Rights Center (ERRC), European Criminal BarAssociation, European Disability Forum, the European Older's People Platform. The United Nations HighCommissioner for Refugees (UNHCR) also was heard on that occasion.4 CHARTE 4473/00, CONVENT 49, 11 October 2000 (revised French version : CHARTE 4473/1/00 CONVENT49 REV 1 <strong>of</strong> 19 October 2000).5 The information concerning the state <strong>of</strong> ratifications is based on the situation on 15.2.2004.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200311presented a too fragmentary or unequal information. Indeed, where sufficient comparabilitycould not be ensured, the Network took the view that it would be more advisable to refrainfrom formulating conclusions, which otherwise – especially if they mention certain countriesin particular – would run the risk <strong>of</strong> being selective. Even where no conclusions have beenadopted, however, the reports which served as the background to these conclusions maycontain information to which the reader is referred.The findings made in these conclusions are not binding upon the institutions <strong>of</strong> the Union, andthe institutions cannot be held responsible for any information they contain. Although the EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights was set up by the EuropeanCommission upon request <strong>of</strong> the European Parliament, the views expressed in theseconclusions are formulated by the Network, acting in a fully <strong>independent</strong> manner.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200313CHAPTER I : DIGNITYArticle 1. Human dignityNo conclusions have been adopted under this provision <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights.Article 2. Right to lifeState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, this provision <strong>of</strong> the Chartercorresponds to Article 2 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance with the requirementsformulated by Article 6 <strong>of</strong> the International Covenant on Civil and Political Rights (1966), byits Second Optional Protocol aiming at the Abolition <strong>of</strong> Death Penalty (1989), by the RomeStatute <strong>of</strong> the International Criminal Court (1998), by Protocol n°6 to the EuropeanConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms concerning theAbolition <strong>of</strong> Death Penalty (1983), and by Protocol n°13 to the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms concerning the Abolition <strong>of</strong> theDeath Penalty in all Circumstances (2002).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 3Member States still have to be sign the Second Optional Protocol to the InternationalCovenant on Civil and Political Rights: the Czech Republic, France and Latvia. Poland hassigned this instrument but has not ratified.It also notes that all Member States have now signed Protocol n°13 to the EuropeanConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms. 14 MemberStates have signed this instrument but still have not ratified it: Czech Republic, Estonia,Germany, Greece, Finland, France, Ireland, Italy, Latvia, Luxembourg, the Netherlands,Poland, Slovak Republic and Spain.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 2 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:The excessive use <strong>of</strong> firearms by the police and security forces is pointed out by manyreports. In Austria, Greece, Germany, Portugal, France and Hungary, the use <strong>of</strong>firearms by police <strong>of</strong>ficers led to the death <strong>of</strong> individuals during the period underscrutiny. Allegations <strong>of</strong> violence and ill-treatment by the security forces are underlinedin almost all the reports. In France, certain ill-treatments have occurred especiallyduring the expulsion procedures <strong>of</strong> foreigners. In the Slovak Republic, allegations <strong>of</strong>CFR-CDF.Conclusions.2003.en

14EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSharassment and ill-treatment by the police against the Roma minority raise particularsources <strong>of</strong> concern. The Network moreover would recall that where a person dies incustody, the effective protection <strong>of</strong> the right to life requires that death is fully andspeedily investigated, by an <strong>independent</strong> and impartial instance which must have therequired investigatory powers to identify the circumstances <strong>of</strong> the death and theentailed responsibilities. In this respect, while the Network welcomes the fact thatdemonstrable shortcomings in the legislative framework for post-mortem inquiries inIreland are about to be addressed in new legislation, it notes that there remain otherpractical concerns (such as delays in the forensic science laboratory) that can only beaddressed by increased resourcing <strong>of</strong> the relevant services associated with suchinquiriesThe land mines fields on the Northeast border <strong>of</strong> Greece – aiming at prohibiting theillegal crossing <strong>of</strong> borders – caused the death <strong>of</strong> 10 persons during the period underscrutiny.The Network is concerned about the disproportionately high incidence <strong>of</strong> deaths incustody <strong>of</strong> members <strong>of</strong> ethnic or racial minority groups in the United Kingdom, asnoted by the Committee on the Elimination <strong>of</strong> Racial Discrimination in the ConcludingObservations on the United Kingdom’s sixteenth and seventeenth periodic reports(CERD/C/63/CO/11, 10 December 2003). The Network is also concerned about theadequacy in the United Kingdom <strong>of</strong> arrangements to prevent persons in custody fromtaking their own lives or being exposed to harm by others and the failure always tosecure prompt, effective and transparent investigations <strong>of</strong> the circumstances in whichsuch deaths, and those in which law enforcement <strong>of</strong>ficials are involved, occur.The domestic approaches <strong>of</strong> the question <strong>of</strong> <strong>eu</strong>thanasia are widely diverging.Euthanasia is allowed under certain conditions in some States (e.g. the Netherlandsand Belgium). It is strictly forbidden in other States (e.g. Czech Republic, Poland,Malta, Sweden) whilst it is lively discussed in France, Hungary and Germany.Although it acknowledges that the Member States may have different approaches tothis issue in the present state <strong>of</strong> the international law <strong>of</strong> human rights, the Networkemphasizes that, where this is the choice made within a Member State, the partialdecriminilization <strong>of</strong> <strong>eu</strong>thanasia may only be considered compatible with the right tolife <strong>of</strong> the individual if the conditions under which it may legally be performedguarantee fully the free and informed consent <strong>of</strong> the individual concerned, and ensurethat no form <strong>of</strong> pressure, including but not limited to pressure exercised by the medicalstaff and by family members, is exercised upon him or her. The Network notes in thisrespect the decision by the Constitutional Court <strong>of</strong> Hungary on <strong>eu</strong>thanasia (decision22/2003. (IV. 28.) AB határozat), where, while acknowledging that the Act on HealthCare makes the self-determination <strong>of</strong> terminally ill patients only to a limited extentpossible, it considered that this restriction was in accordance with human dignity andcould be justified by the need to protect the right to life.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights notes with concern that according to “Feasibility study on the control <strong>of</strong>the European Union’s maritime borders” prepared by Civipol Conseil for the Commission,“The increasing deterrent effective <strong>of</strong> improving the surveillance and control mechanisms <strong>of</strong>the Spanish and Italian authorities on the Straits <strong>of</strong> Gibraltar and the Sicilian Channel isshifting the focus towards riskier passages, the Canary Islands Channel and the Gulf <strong>of</strong> Sirte”.In defining the measures to combat illegal immigration across the maritime borders <strong>of</strong> the EU,the Member States are urged to take into account the impact these measures could have on themeans <strong>of</strong> illegal immigration, and the risks entailed for the candidate immigrants.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200315Positive aspects and good practicesThe Network notes with satisfaction that in Greece, significantly stricter conditions have beenimposed in 2003 on the use <strong>of</strong> firearms by the police, whose practical training moreover hasbeen improved.The Network notes with interest that in Finland, the Constitutional Law Committee whilstinterpreting the provision <strong>of</strong> the Finnish Constitution providing that a foreigner shall not bedeported, extradited or returned to another country if there is a risk <strong>of</strong> death sentence ortorture, expressed the view that personal data should not be transferred if it is processed forthe purpose <strong>of</strong> sentencing a capital punishment or executing it.The Network also notes with interest that the Netherlands have immediately launched an<strong>of</strong>ficial investigation after a soldier stationed with the Dutch troops in Iraq as part <strong>of</strong> theMultilateral Stabilisation Forces pursuant to UN Security Council Resolution 1483 (2003)was accused <strong>of</strong> having committed killed an Iraqi civilian at a moment that there was noimmediate danger to any Dutch soldier. The Network considers that by launching aninvestigation in such circumstances, the Netherlands acts in conformity with the obligationsflowing from Article 2 <strong>of</strong> the European Convention on Human Rights (Eur. Ct. HR, Kelly v.the United Kingdom judgment <strong>of</strong> 4 May 2001, Appl. no. 30054/96, paras. 91-98), to theextent that the troops stationed in Irak effectively control the relevant territory and itsinhabitants and “exercise all or some <strong>of</strong> the public powers normally to be exercised by theGovernment” (Eur. Ct. HR, 19 December 2001, Bankovic a.o. v. Belgium and 16 otherContracting Parties (adm. dec.), application no. 52207/99, para. 71).Article 3. Right to the integrity <strong>of</strong> the personState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 7 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), by the Rome Statute <strong>of</strong> theInternational Criminal Court (1998) and by Article 1 <strong>of</strong> the Council <strong>of</strong> Europe Convention onHuman Rights and Biomedicine (1997).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 6Member States still have to be sign the Convention on Human Rights and Biomedicine:Austria, Belgium, Germany, Ireland, Malta and the United Kingdom. 8 Member States havesigned this instrument but still have not ratified it: Finland, France, Italy, Latvia,Luxembourg, the Netherlands, Poland and Sweden.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 3 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights noted that therap<strong>eu</strong>ticand reproductive cloning are prohibited in almost all Member States. In certain MemberStates, however, the present regime <strong>of</strong> therap<strong>eu</strong>tic cloning is in discussion or is ambiguous,which may rise a problem <strong>of</strong> legal certainty. In the Slovak Republic, therap<strong>eu</strong>tic cloning isCFR-CDF.Conclusions.2003.en

16EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSnot presently prohibited, but there is a proposal to impose this prohibition in the future. InAustria, the prohibition <strong>of</strong> reproductive cloning is not explicit and the status <strong>of</strong> therap<strong>eu</strong>ticcloning is still unclear. In Malta, the lack <strong>of</strong> legislation in the field <strong>of</strong> medicine and biologyon issues such as cloning, <strong>eu</strong>genic practices and on free and informed consent gives rise toambiguous situations, which may be source <strong>of</strong> concern.While welcoming the Proposal <strong>of</strong> a new Health Care Act in the Slovak Republicguaranteeing the informed consent <strong>of</strong> the patient and access to medical files, the Networkremains concerned about the information concerning forced sterilisation <strong>of</strong> women in thatcountry. The Slovak Republic should adopt all necessary measures to investigate all allegedcases <strong>of</strong> coerced or forced sterilization, publicize the findings, provide effective remedies tovictims and prevent any further instances <strong>of</strong> sterilization without full and informed consent.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights notes with interest that the Criminal Codes <strong>of</strong> both France and theSlovak Republic have been amended in order to insert specific incriminations <strong>of</strong> <strong>eu</strong>genicpractices. The French Code now provides with a new chapter devoted to “Crimes against thehuman race” (crimes contre l’espèce humaine), which severely punishes <strong>eu</strong>genic practiceaiming at organising the selection <strong>of</strong> human beings. In the Slovak Republic, the amendmentintroduces the new “crime <strong>of</strong> human being cloning”.The Network also notes a trend towards a better protection <strong>of</strong> the patient in relation to medicalacts. Patients’ rights have improved in Germany through the adoption <strong>of</strong> the new “Charter <strong>of</strong>Patients Rights in Germany”, which seems to be similar to the previous ones adopted in theUnited Kingdom, Ireland, Portugal and Austria. Steps in this direction have also beenundertaken by the Latvian Draft Law on the Protection <strong>of</strong> Patients’ Rights. In Belgium, theLaw <strong>of</strong> 22 August 2002 regarding Patients’ Rights establishes the “Patients Rights FederalCommission” in charge <strong>of</strong> ensuring the follow-up <strong>of</strong> patients rights, advising the competentminister in these matters, assessing the specific mediation functions to be created and dealingwith possible complaints regarding these mediation functions. Also with regard to Belgium,the Network notes with interest the criteria identified in Opinion n° 21 <strong>of</strong> 10 March 2003 <strong>of</strong>the Belgian Advisory Committee on Bioethics where the Committee tackles the issue <strong>of</strong>forced treatments in the context <strong>of</strong> forced hospitalisation as covered by law <strong>of</strong> 26 June 1990regarding the protection <strong>of</strong> persons with mental health problems.Article 4. Prohibition <strong>of</strong> torture and inhuman or degrading treatment or punishmentState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, this provision <strong>of</strong> the Chartercorresponds to Article 3 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance with the requirementsformulated by Article 7 <strong>of</strong> the International Covenant on Civil and Political Rights (1966), bythe United Nations Convention against Torture and Other Cruel, Inhuman or DegradingTreatment and Punishment (1984), by Article 19 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child(1989) and by the European Convention for the Prevention <strong>of</strong> Torture and Inhuman orDegrading Treatment or Punishment (1987).CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200317It also notes that the protection <strong>of</strong> the rights listed in Article 4 <strong>of</strong> the Charter <strong>of</strong> FundamentalRights has recently been improved at the international level by the adoption <strong>of</strong> the OptionalProtocol to the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (2002) although this instrument is not in force yet.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 18Member States still have to sign the Optional Protocol to the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment: Belgium, Cyprus, CzechRepublic, Estonia, Germany, Greece, Hungary, France, Ireland, Latvia, Lithuania,Luxembourg, the Netherlands, Poland, Portugal, Slovak Republic, Slovenia and Spain. Maltaand the United Kingdom are the only Member States that have ratified it.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 4 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:The conditions in which asylum-seekers are detained or in which aliens are forciblyremoved still constitutes an important source <strong>of</strong> concern in a number <strong>of</strong> MemberStates. In Austria, the conditions <strong>of</strong> detention pending deportation <strong>of</strong> illegalimmigrants in old police jails, which sometimes certainly come close to inhumantreatment, have been the continuous object <strong>of</strong> criticism by the Human Rights AdvisoryBoard in 2003. The "Report to the German Government on the visit to Germanycarried out by the European Committee for the Prevention <strong>of</strong> Torture and Inhuman orDegrading Treatment or Punishment from 3 to 15 December 2000" (CPT/Inf.(2003)20) deals among others with complaints <strong>of</strong> excessive use <strong>of</strong> force by the police duringthe forcible removal <strong>of</strong> foreigners. In France, the introduction <strong>of</strong> the new article 35bisin the Order <strong>of</strong> 1945 (Ordonnance de 1945) provides for a notable extension <strong>of</strong> thelength <strong>of</strong> the administrative detention <strong>of</strong> undocumented foreigners, which raisesconcern with respect to the difficult conditions <strong>of</strong> detention in these centers. In Greece,similar concerns are pointed out regarding ill-treatment <strong>of</strong> asylum-seekers and detainedforeigners.After its visit to Hungary in 1999, the European Committee for the Prevention <strong>of</strong>Torture had remarked that being infected with HIV is not to be used as a justificationfor separating people and it recommended that Hungarian authorities bring their HIVpolicy into line with relevant international standards in this regard (§§ 121-122 <strong>of</strong> theReport to the Hungarian Government on the visit to Hungary carried out by CPT in1999). The Network regrets that these findings are still valid today.Serious overcrowding in prison remains a source <strong>of</strong> concern under Article 4 <strong>of</strong> theCharter in Portugal, Poland, France and Cyprus. Moreover, the size <strong>of</strong> cells in Latviafalls below international standards.The Network has serious concerns about the situation <strong>of</strong> persons detained pursuant tothe Anti-terrorism, Crime and Security Act 2001, ss 21-23 in the United Kingdom, asthis Act provides for an indefinite period <strong>of</strong> detention for foreigners believed to pose aCFR-CDF.Conclusions.2003.en

18EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSrisk to national security and suspected <strong>of</strong> being international terrorists who, for legal orpractical reasons, cannot be removed from the United Kingdom. The Network sharesthe view <strong>of</strong> the European Committee for the Prevention <strong>of</strong> Torture and Inhuman orDegrading Treatment or Punishment that steps be taken to ensure that, in case <strong>of</strong> anyfurther detentions pursuant to the Act that the right <strong>of</strong> access to a lawyer be guaranteedfrom the very outset (Report (CPT/Inf (2003) 18). It encourages the United Kingdomto follow upon the recommendations <strong>of</strong> the CPT for a review <strong>of</strong> the situation <strong>of</strong>detained persons as regards access to activities, the imposition <strong>of</strong> further limitations onthe out-<strong>of</strong>-cell time because <strong>of</strong> ’operational requirements’, the ability to receive only alimited number <strong>of</strong> radio stations and none in Arabic, the fact that they have not beenaccused or convicted <strong>of</strong> any concrete criminal <strong>of</strong>fence and that their detention isindefinite.The use <strong>of</strong> cage-beds in the Slovak Republic is not fully abolished. Although the use<strong>of</strong> cage beds is now prohibited in social care service homes, this prohibition does notcover mental hospitals.Article 4 <strong>of</strong> the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment <strong>of</strong> Punishment (1984) provides that each State Party shall ensure that allacts <strong>of</strong> torture are <strong>of</strong>fences under its criminal law. However, the reports on Latvia,Sweden, Italy and Slovenia underline that torture does not constitute a specificcriminal <strong>of</strong>fence under their national criminal code, however forthcoming reforms areexpected in the last two States. In its 2003 Conclusions on Belgium, the UNCommittee against Torture expressed its concern about certain lacunae in the Belgianlaw regarding the incrimination <strong>of</strong> torture (CAT/C/CR/30/6).The lack <strong>of</strong> <strong>independent</strong> monitoring bodies on allegations <strong>of</strong> torture and <strong>of</strong> allegations<strong>of</strong> violence by the police is pointed out by certain reports. In Sweden for instance,there is still no <strong>independent</strong> monitoring body in existence for the inspection <strong>of</strong>patients’ care placed in psychiatric establishments or in institutions for young persons.The same remarks are equally relevant for homes for drug addicts and other substanceabusers. The UN Human Rights Committee recommended that Estonia guarantee theindependence from police authorities <strong>of</strong> the newly created police control department,which is responsible for carrying out investigations <strong>of</strong> abuses committed by the police(CCPR/CO/77/EST). The Network welcomes the fact that legislative proposalsseeking to replace in Ireland the Garda Siochana Complaints Board with a GardaInspectorate having powers akin to that <strong>of</strong> a Police Ombudsman are to be broughtforward in 2004, however expresses the hope that this new collegiate body will havethe requisite degree <strong>of</strong> autonomy and independence.In Lithuania, the Committeeagainst Torture criticised the situation that investigations into allegations against police<strong>of</strong>ficers are not conducted by a body <strong>independent</strong> <strong>of</strong> the Police.The Network encourages the Slovak Republic to take measures to eradicate all forms<strong>of</strong> police harassment and ill-treatment during police investigations <strong>of</strong> the Roma,including prompt investigations, prosecutions <strong>of</strong> perpetrators and the provision <strong>of</strong>effective remedies to the victims. It also regrets that, in this same country, the adoptedprohibition <strong>of</strong> cage or net beds use does not cover all cases <strong>of</strong> using these beds in theSlovakia, as it relates only to the social services facilities operating under theprovisions <strong>of</strong> the Act on Social Assistance supervised by the Ministry <strong>of</strong> Labour,Social Affairs and Family, and does not cover mental hospitals under supervision <strong>of</strong>the Ministry <strong>of</strong> Health.The rates <strong>of</strong> domestic violence are very high in most Member States. Concerns areraised by many reports regarding the need to improve policy and legal frameworks toCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200319combat domestic violence and to take appropriate preventive measures in order to givethe required assistance to the victims.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified a trend towards the introduction in the criminal law <strong>of</strong> aspecific incrimination <strong>of</strong> female genital mutilation. In Cyprus, Law 48 (I) 2003 provides forthis incrimination which is to be applied extra-territorially, i.e., also with respect to such<strong>of</strong>fences committed abroad by Cypriot nationals or individuals permanently residing inCyprus; the law specifies that the consent <strong>of</strong> the women involved does not constitute adefence nor a mitigating factor. In Spain, Law 11/2003 provides for a specific penalty forfemale genital mutilations as well as for the loss <strong>of</strong> parental authority where the parents areheld responsible <strong>of</strong> the mutilation. In the United Kingdom, the Female Genital MutilationAct 2003, like the new legislation in Cyprus, provides that <strong>of</strong>fences connected with femalegenital mutilation apply not only to acts committed by anyone within the United Kingdom butalso to those committed elsewhere by a UK national or permanent resident.The Network also notes with interest that in the Netherlands, the Wet internationalemisdrijven [International Crimes Act] entered into force in 2003 (Staatsblad 2003, 270;Kamerstukken 28 337), It welcomes the extension <strong>of</strong> the incrimination <strong>of</strong> genocide, crimesagainst humanity and war crimes, to acts committed outside the Netherlands, irrespective <strong>of</strong>the nationality <strong>of</strong> the suspect, although where the suspect does not have Dutch nationality,criminal proceedings can only be brought if he is present in the Netherlands.Upon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified a number <strong>of</strong> good practices aiming at the protection <strong>of</strong> thevictims <strong>of</strong> domestic violence. Spain has decided to grant <strong>independent</strong> residence permits t<strong>of</strong>oreigners victims <strong>of</strong> domestic violence (Organic Law 14/2003). This measure however hasbeen criticized because it only applies once an order <strong>of</strong> protection has been ordered thus oncethe violence has occurred. Luxembourg has adopted the Law <strong>of</strong> 8 September 2003 onDomestic Violence, which sets up measures for the expulsion <strong>of</strong> the perpetrator <strong>of</strong> theviolence from the family home as well as measures <strong>of</strong> assistance for the victims. In Sweden,the Government has allocated budget to sheltered housing and other measures for people atrisk <strong>of</strong> honour-related violence. Acting on government instructions, the Swedish IntegrationBoard, in cooperation with other institutions, has highlighted good examples and methods forpreventing conflicts between the individual and the family that may be caused by ideas abouthonour. In Ireland, a new program has been set up aimed at preventing domestic violence byintegrating the work <strong>of</strong> criminal justice system with that <strong>of</strong> victims support agencies.The Network also notes with interest the solution adopted by Rechtbank [Regional Court] <strong>of</strong>The Hague in the case <strong>of</strong> Mr Lorsé, whose conditions <strong>of</strong> detention had been found by theEuropean Court <strong>of</strong> Human Rights to be incompatible with Article 3 ECHR. Despite theabsence <strong>of</strong> a formal legal basis, the Rechtbank decided that the seriousness <strong>of</strong> the violation <strong>of</strong>Article 3 justified a reduction <strong>of</strong> 10% <strong>of</strong> the prison sentence, a solution which the Hoge Raad[Supreme Court] approved <strong>of</strong> in its judgment <strong>of</strong> 31 October 2003. The Network observes that,according to the Hoge Raad, Mr Lorsé was entitled to compensation after the European Court<strong>of</strong> Human Rights had found a violation <strong>of</strong> Article 3 in his case, and that, althoughcompensation may take the form <strong>of</strong> a pecuniary amount, it may also take other forms, such asearly release. This conclusion was not altered by the fact that the judgment imposing a prisonsentence on Mr Lorsé was final and that the State authorities were obliged to comply with thatjudgment as well.CFR-CDF.Conclusions.2003.en

20EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSThe Network notes with satisfaction that, following several negative reports <strong>of</strong> national aswell as international institutions for the protection <strong>of</strong> human rights, and in the framework <strong>of</strong>the approved UN Optional Protocol to the Convention against Torture and other Cruel,Inhuman or Degrading Treatment or Punishment (G.A. Res. A/RES/57/199 adopted on 18December 2002 at its 57th session), the Czech Republic envisages to amend the Law onPublic Protector <strong>of</strong> Rights (Zák. . 349/ 1999 Sb. o Veejném ochránci práv, ve znnípozdjších pedpisú (Law No. 34/ 1999 Coll. Of Laws on the Public Protector <strong>of</strong> Rigts, asamended by later laws) to extend the scope <strong>of</strong> the competence rationae materie and rationaepersonae <strong>of</strong> the Czech Ombudsman, to authorize the Ombudsman to carry out regularinspections in all places <strong>of</strong> detention <strong>of</strong> persons or de facto restriction <strong>of</strong> their freedom.Article 5. Prohibition <strong>of</strong> slavery and forced laborState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, paragraphs 1 and 2 <strong>of</strong> this provision <strong>of</strong>the Charter corresponds to Article 4 <strong>of</strong> the European Convention for the Protection <strong>of</strong> HumanRights and Fundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance with the requirementsformulated by Article 8 <strong>of</strong> the International Covenant on Civil and Political Rights (1966), bythe Slavery Convention (1926), by the Supplementary Convention on the Abolition <strong>of</strong>Slavery, the Slave Trade and Institutions and Practices similar to Slavery (1956), by theConvention for the Suppression <strong>of</strong> the Traffic in Persons and <strong>of</strong> the Exploitation <strong>of</strong> theProstitution <strong>of</strong> Others (1950), by Article 6 <strong>of</strong> the Convention on the Elimination <strong>of</strong> All Forms<strong>of</strong> Discrimination against Women (1979), by Articles 32, 34 and 35 <strong>of</strong> the Convention on theRights <strong>of</strong> the Child (1989), by the Convention against Transnational Organised Crimesupplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children (Trafficking Protocol) and the Protocol Against theSmuggling <strong>of</strong> Migrants by Land, Air and Sea (Smuggling Protocol) (2000), by Article 9 <strong>of</strong>the Convention on Cybercrime (2001), by ILO-Convention (n° 29) concerning Forced orCompulsory Labour (1930), by ILO-Convention (n° 105) concerning the Abolition <strong>of</strong> ForcedLabour (1957) and by ILO-Convention (n° 182) concerning the Prohibition and ImmediateAction for the Elimination <strong>of</strong> the Worst Form <strong>of</strong> Child Labour (1999).It notes that the protection <strong>of</strong> the rights listed in this provision <strong>of</strong> the Charter <strong>of</strong> FundamentalRights has recently been improved at the international level by the adoption <strong>of</strong> by theOptional Protocol to the Convention on the Rights <strong>of</strong> the Child on the Sale <strong>of</strong> Children, ChildProstitution and Child Pornography (2000) It also notes that the Convention on theElimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women has recently been reinforced bythe adoption <strong>of</strong> an Optional Protocol (2000), which should be also taken into account wheninterpreting this provision <strong>of</strong> the Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that allMember States have ratified the Slavery Convention, with the exception <strong>of</strong> Luxembourg,Lithuania and Slovenia. It notes that Estonia and Lithuania have not signed theSupplementary Convention on the Abolition <strong>of</strong> Slavery. It notes that 10 Member States havenot signed the Convention for the Suppression <strong>of</strong> the Traffic in Persons and <strong>of</strong> theExploitation <strong>of</strong> the Prostitution <strong>of</strong> Others: Austria, Germany, Greece, Estonia, Ireland,Lithuania, Malta, the Netherlands, United Kingdom and Sweden, Denmark has signed it but ithas not ratified it.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200321It notes that Czech Republic and Lithuania still have to be sign the Optional Protocol to theConvention on the Rights <strong>of</strong> the Child on the Sale <strong>of</strong> Children, Child Prostitution and ChildPornography. 18 Member States have signed this Protocol but still have not ratified it:Austria, Belgium, Cyprus, Estonia, Finland, Germany, Greece, Hungary, Ireland, Latvia,Luxembourg, Malta, the Netherlands, Poland, United Kingdom, Slovak Republic, Sloveniaand Sweden.It notes that all Member States have signed both the Convention against TransnationalOrganised Crime and the Supplementing Protocol to Prevent, Suppress and PunishTrafficking in Persons, Especially Women and Children. 11 Member States have ratified theConvention namely Cyprus, Denmark, Estonia, Finland, France, Latvia, Lithuania, Malta,Poland, Slovak Republic and Spain. All Member States have signed its SupplementingTrafficking Protocol but only 7 Member States have ratified it: Cyprus, Denmark, Estonia,France, Malta, Lithuania and Poland. All Member States have signed its SupplementingSmuggling Protocol but only 7 Member States have ratified it: Cyprus, France, Latvia,Lithuania, Malta, Poland and Spain.It notes that 3 Member States still have to sign the Convention on Cybercrime: CzechRepublic, Latvia and Slovak Republic. The only Member States that have ratified thisinstrument are Estonia, Hungary and Lithuania. It notes that Latvia is the only Member Statethat has neither signed nor ratified both ILO Convention (n° 29) concerning Forced orCompulsory Labour and Convention (n° 182) concerning the Prohibition and ImmediateAction for the Elimination <strong>of</strong> the Worst Form <strong>of</strong> Child Labour.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 5 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:Forced prostitution, as a contemporary form <strong>of</strong> slavery, deserves to be combated as aserious violation <strong>of</strong> human rights. The prostitute should be treated as a victime in need<strong>of</strong> protection, rather than as a criminal, and this should be seen as a condition for theeffective fight against coerced prostitution and the trafficking <strong>of</strong> human being forsexual exploitation. The Network notes the widely diverging approaches <strong>of</strong> theMember States with regard to prostitution which is freely entered into, ranging fromde-criminalisation or regulation <strong>of</strong> the purchase <strong>of</strong> sexual services to their prohibition.Although it acknowledges that the choices made by States differ on this issue, theNetwork notes that these differences between the Member States must be reconciledwith the freedom to provide services within the European Union.Forced labour remains a matter <strong>of</strong> concern relayed by certain national reports. In thisregard, the report on the Slovak Republic raises concerns regarding the workingconditions <strong>of</strong> unqualified or low skilled / seasonal / immigrant workers in the field <strong>of</strong>construction industry or agriculture. In Ireland, the principle that the working permitsattaches to an employer and not to an employee has the effect <strong>of</strong> restricting theemployment choice <strong>of</strong> migrant workers and could constitute a form <strong>of</strong> boundedservitude. In Portugal, the employment <strong>of</strong> regular immigrants implies the requirement<strong>of</strong> a valid employment contract for the annual renewal <strong>of</strong> their ‘permission to stay’,CFR-CDF.Conclusions.2003.en

22EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSwhich strengthens the position <strong>of</strong> employer, particularly given the average length <strong>of</strong>employment contracts.Article 5(3) <strong>of</strong> the Charter says that trafficking <strong>of</strong> human beings is prohibited, howeverthe Network notes that a number <strong>of</strong> gaps remain in the domestic legislation <strong>of</strong> anumber <strong>of</strong> Member States, and that the implementation <strong>of</strong> the international andEuropean standards in this field continues to diverge. It encourages States to speed upthe process <strong>of</strong> ratification <strong>of</strong> the international and European instruments mentionedabove. It recalls the need to adopt a broad definition <strong>of</strong> trafficking that explicitlycovers trafficking <strong>of</strong> women, men and children, that includes the “intra-countrytrafficking” <strong>of</strong> persons and that does not only incriminate trafficking for the purpose <strong>of</strong>sexual exploitation but also for purposes <strong>of</strong> forced or exploitative labour or theremoval <strong>of</strong> body organs. It is also essential to provide measures <strong>of</strong> protection <strong>of</strong> thevictims in these cases.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the adoption by the Justice and Home Affairs Council <strong>of</strong> adirective on the short-term residence permit issued to victims <strong>of</strong> action to facilitate illegalimmigration or trafficking in human beings who cooperate with the competent authorities. Italso encourages the adoption by the European Community <strong>of</strong> the Convention againsttransnational organised crime and <strong>of</strong> its additional protocols to prevent, suppress and punishtrafficking in persons, especially women and children (Trafficking Protocol) and against thesmuggling <strong>of</strong> migrants by land, air and sea (Smuggling Protocol).Positive aspects and good practicesThe Network welcomes the initiatives adopted in the Czech Republic in order to improveprotection <strong>of</strong> persons, especially women and children against exploitation <strong>of</strong> prostitution andchild pornography. it notes in particular that the Penal Code <strong>of</strong> the Czech Republic (Law. No.134/ 2002 Coll. <strong>of</strong> Laws) was amended to introduce the concept <strong>of</strong> “trafficking in persons forthe purpose <strong>of</strong> sexual intercourse” regardless the quality <strong>of</strong> the victim (women, men orchildren), and to widen and improve the definition <strong>of</strong> child pornography and makedistribution, publication, production, import, transit and export <strong>of</strong> the child pornography acriminal <strong>of</strong>fence.The Network notes with satisfaction that in Greece, a presidential decree <strong>of</strong> 2003 implementsand completes the Law n° 3064/2002, seeking to combat and punish the trafficking in humanbeings, in order to <strong>of</strong>fer a more precise definition <strong>of</strong> the notion <strong>of</strong> victims <strong>of</strong> trafficking inhuman beings, in the meaning <strong>of</strong> the Penal Code, and to create a system <strong>of</strong> assistance to thosevictims. In Italy, the Law <strong>of</strong> 11 August 2003, n° 228 (J.O. <strong>of</strong> 23.8.2003), details andreinforces the incrimination <strong>of</strong> reduction into, or maintenance in, slavery, trafficking inhuman beings, trade in slaves. The law includes in the notion <strong>of</strong> reduction into slavery the factto maintain a person in a state <strong>of</strong> continuous intimidation by obliging that person to perform acertain labour, sexual acts, mendicity or any kind <strong>of</strong> service which includes a form <strong>of</strong>exploitation. The law also reinforces the possibilities to combat organized criminality with aview to committing such criminal acts. The Network notes with interest that the law willcreate a Fund for the assistance and social integration programmes in favor <strong>of</strong> the victims <strong>of</strong>trafficking in human beings and the social protection programmes in favor <strong>of</strong> exploitedmigrants who are threatened because they denounce those committing exploitation (Art. 18 <strong>of</strong>the Immigration Law n° 286/1998),. The Fund will be financed by the revenues fromconfiscated goods <strong>of</strong> criminal organisations implicated in the trafficking in human beings.The Network has noted with interest that for the first time in Sweden, a judgment from theDistrict Court in Gothenburg (Case No B 7477-03 Internationella åklagarkammaren v.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200323L.Stojko and K.Dupski, 15 October 2003) convicted two persons for trafficking in humanbeing.CHAPTER II : FREEDOMSArticle 6. Right to liberty and securityState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, this provision <strong>of</strong> the Chartercorresponds to Article 5 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by both Article 9 <strong>of</strong> the International Covenant on Civil and Political Rights(1966) and Article 37 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989).All the Member States are parties to these instruments.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:Although Recommendation Rec(2003)20 addressed by the Committee <strong>of</strong> Ministers <strong>of</strong>the Council <strong>of</strong> Europe to the Member States on 24 th September 2003, regarding newmethods for dealing with juvenile delinquency and the role <strong>of</strong> justice for minors,shows the direction to be followed in the future, the EU Network <strong>of</strong> IndependentExperts notes a range <strong>of</strong> problems regarding the administration <strong>of</strong> juvenile justice andthe adoption <strong>of</strong> measures, including detention, against young <strong>of</strong>fenders. It regrets thatin Ireland, Shanganagh Castle has been closed, although this was the only opendetention centre for young <strong>of</strong>fenders in the State and although there is no proposal fora replacement facility, despite the fact that Shanganagh Castle had provided anessential and appropriate platform for rehabilitative and educational approaches forconvicted 16- to 21-years-old In Latvia, the law and the practice concerning juvenile<strong>of</strong>fenders continues to be a source <strong>of</strong> concern, as detention measures and prison termsare commonly used where other measures would appear more appropriate. In Austria,the increase <strong>of</strong> juvenile <strong>of</strong>fenders sent to jail linked to the practice <strong>of</strong> jailing foreignjuveniles for petty crimes is a cause for serious concern, with the situation being worstin Vienna where in 3 years the rate <strong>of</strong> new inmates under the age <strong>of</strong> 21 has risen by74% above-average. In Belgium the law <strong>of</strong> 1 March 2002, the implementation <strong>of</strong>which has created in Everberg the Centre for the temporary placement <strong>of</strong> young<strong>of</strong>fenders, has not solved the problem <strong>of</strong> the lack <strong>of</strong> adequate facilities for theaccommodation <strong>of</strong> young <strong>of</strong>fenders. Moreover the implementation <strong>of</strong> the law <strong>of</strong> 1March 2002 has highlighted several difficulties: whereas the placement in the closedcentre <strong>of</strong> Everberg shall in principle be decided only for want <strong>of</strong> alternative solutionfor the placement <strong>of</strong> the young <strong>of</strong>fender, many judicial decisions bring to the fore thedifficulty <strong>of</strong> determining the number <strong>of</strong> places available in the public institutions forthe protection <strong>of</strong> youth (I.P.P.J.). Besides whereas the law <strong>of</strong> 1 March 2002CFR-CDF.Conclusions.2003.en

24EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSsubordinates the young <strong>of</strong>fender’s deprivation <strong>of</strong> liberty to the existence <strong>of</strong> seriousindicia <strong>of</strong> guilt, this requirement is not always respected in practice.The detention <strong>of</strong> minor asylum-seekers, whether accompanied or not, constitutes aspecific problem. In Belgium, since the Royal Order <strong>of</strong> 2 August 2002 setting theconditions and rules <strong>of</strong> the functioning <strong>of</strong> the detention centres for foreigners does notprovide any remedy to this issue, on several occasions the Belgian jurisdictions wereled to find that this form <strong>of</strong> detention was incompatible with the requirements <strong>of</strong> theInternational Convention on the Rights <strong>of</strong> the Child <strong>of</strong> 20 November 1989. The UNCommittee against Torture also expressed its concerns regarding the detention –sometimes for long periods – <strong>of</strong> unaccompanied foreign minors in Belgium(CAT/C/CR/30/6). Despite this, at the end <strong>of</strong> 2003 no concrete measure had beenadopted to bring to an end this kind <strong>of</strong> detention considered contrary to theinternational undertakings <strong>of</strong> Belgium. In the Netherlands also, concerns have beenvoiced as to the accommodation <strong>of</strong> unaccompanied minor asylum-seekers in two‘campuses’ with a very strict regime : the Network notes that in April 2003 a court, ininterim proceedings brought by a number <strong>of</strong> non-governmental organisations, held thatthe regime in the campus was incompatible with Article 31 <strong>of</strong> the Convention on theRights <strong>of</strong> the Child, and also concluded that an <strong>independent</strong> complaints commissionmust be set up within one month. In Sweden, the current state <strong>of</strong> the law with respectto the detention <strong>of</strong> children pending enforcement <strong>of</strong> refusal-<strong>of</strong>-entry or expulsionorders is clearly unsatisfactory since there is at present, no regulation <strong>of</strong> the length <strong>of</strong>time that a child taken into detention in accordance with the 1991 Act <strong>of</strong> SpecialControl <strong>of</strong> Aliens can be kept in detention. These examples are by no means isolated.On the contrary, Council Directive 2003/9/EC <strong>of</strong> 27 January 2003 laying downminimum standards for the reception <strong>of</strong> asylum seekers in the Member States (OJn°L31 <strong>of</strong> 6.2.2003, p.18) and providing a certain number <strong>of</strong> specific measures infavour <strong>of</strong> minor asylum seekers, also provides the possibility <strong>of</strong> detaining minorasylum seekers in non-specific centres, which could be considered contrary to Articles3 § 1 and 37, b <strong>of</strong> the International Convention on the Rights <strong>of</strong> the Child <strong>of</strong> 1989..Foreigners may be detained to prevent unauthorised entry into the country or with aview to effectuating the expulsion. However a number <strong>of</strong> problems are noted in thisfield. In Hungary, under Article 46.1 <strong>of</strong> the 2001. évi XXXIX. törvény a külföldiekb<strong>eu</strong>tazásáról és tartózkodásáról [Act No. XXXIX <strong>of</strong> 2001 on the Entry and Stay <strong>of</strong>Foreigners], the regional alien policing authority may place a foreigner who is subjectto expulsion in detention in order to ensure the implementation <strong>of</strong> the expulsion. In theabsence <strong>of</strong> interpreters, the asylum seekers arrested are not informed in time <strong>of</strong> theessential legal and factual grounds <strong>of</strong> their arrest, which constitutes a violation <strong>of</strong>Article 5(2) <strong>of</strong> the European Convention on Human Rights. Moreover where thelawfulness <strong>of</strong> the detention <strong>of</strong> illegal foreigners without a legal status is reviewed bythe competent courts, this review is mostly formal, and the level <strong>of</strong> scrutinyparticularly low. As a result, it is not unusual for aliens in this situation to have tospend the maximum possible time (12 months) in the detention centers. In Latvia,although the new Immigration Law (Imigrcijas likums, 31.10.2002, LatvijasVstnesis, No. 169, 20.11.2002) provides for the possibility to challenge the detentionin the centre for illegal immigrants, the uncertainty concerning the legal status <strong>of</strong> thetemporary detention centres for immigrants seems to prevail : indeed, the Networknotes that the Ministry <strong>of</strong> Justice argues that, even if the court finds the detentionunlawful, the right to compensation is not granted because immigration proceedingsare not part <strong>of</strong> criminal proceedings. In Lithuania, the Law on Foreigners Legal Statusdoes not contain safeguards against arbitrary detention and foreigners could bedetained for unlimited period and without being provided legal assistance. TheNetwork shares the concerns expressed about Belgium by the UN Committee againstTorture, regarding the possibility <strong>of</strong> extending the length <strong>of</strong> the detention <strong>of</strong> foreignersCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200325as long as they refuse to collaborate to their repatriation (Concluding Observations <strong>of</strong>14 May 2003, CAT/C/CR/30/6). Another important source <strong>of</strong> concern expressed bythe Committee against Torture in the same conclusions relates to the informationreceived by the Committee according to which asylum-seekers formally released fromdetention had been transferred into a transit zone <strong>of</strong> the airport, without beingauthorized to leave that zone, and without being afforded any assistance (Committeeagainst Torture, 30th session, Conclusions <strong>of</strong> 14 May 2003 relating to Belgium,CAT/C/CR/30/6). The Network regrets that, during the year 2003, the Foreigners’Office (Office des étrangers) has repeatedly resorted to this practice, in instanceswhere a competent court had ordered that an end be put to the deprivation <strong>of</strong> liberty <strong>of</strong>the alien. In the Czech Republic, despite the fact that the detention <strong>of</strong> foreigners forthe purpose <strong>of</strong> administrative expulsion or transfer is not a sanction measure, thespecial institutions where this detention takes place are similar to prisons. In Italy andLuxembourg, serious concerns are also raised in this field. In France, the lawregarding immigration and sray <strong>of</strong> foreigners in France (Law n°2003-1119 <strong>of</strong> 26November 2003) has extended the period <strong>of</strong> detention <strong>of</strong> foreigners for the purpose <strong>of</strong>their expulsion. It is notable that this extension was justified by the fact that, prior tothis modification, the maximum length <strong>of</strong> detention was one <strong>of</strong> the shortest in theUnion, which illustrates the risk <strong>of</strong> a lowering <strong>of</strong> the guarantees in the Member States<strong>of</strong> the Union in the presence <strong>of</strong> instruments which, at European level, prescribe onlyminimal guarantees. Moreover the French law authorises the transfer <strong>of</strong> the detainedperson during the all period <strong>of</strong> detention to other closed centres, which could inpractice hinder the foreigner from having proper legal counseling. In Hungary,asylum seekers having entered the country illegally are routinely placed in alienpolicing detention and detained as foreigners subject to expulsion or extradition: ifthey are unable to manage to apply for refugee status at one <strong>of</strong> the reception stationsfor refugees before they are found by border guards or by the police, they will have tostay in alien policing detention centers until their application for asylum is decided. InCyprus, the Council <strong>of</strong> Europe Commissioner for Human Rights has emphasised thatasylum seekers, whose applications have been rejected, should not be kept at thecentral prisons since they are not criminals. Serious criticisms have been addressedboth by the Council <strong>of</strong> Europe Commissioner for Human Rights (Report by Mr.Alvaro Gil-Robles, Commissioner for Human Rights on his visit to the CzechRepublic from 24 to 26 February 2003, Srasbourg, 15 October 2003) and by theEuropean Committee for the Prevention <strong>of</strong> Torture on the basis <strong>of</strong> its visit to CzechRepublic <strong>of</strong> 21 – 30 April 2002 on the situation and conditions in detention centres foraliens in the process <strong>of</strong> removal in the Czech republic, where they are deprived <strong>of</strong>their liberty in prison-like conditions. The Network also shares the concerns expressedby the Council <strong>of</strong> Europe Commissioner for Human Rights with respect to thesituation and conditions <strong>of</strong> detention <strong>of</strong> asylum seekers in Malta. It recalls that theCommissioner for Human Rights had called for urgent action to be taken by the Stateauthorities to remedy this.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights notes in this contextthat, according to Article 31 <strong>of</strong> the Geneva Convention relating to the Status <strong>of</strong>Refugees <strong>of</strong> 28 July 1951, the asylum seeker shall not been considered as being guilty<strong>of</strong> a criminal <strong>of</strong>fence on account <strong>of</strong> his or her illegal entry or presence on the territoryand restrictions to his or her freedom <strong>of</strong> movement shall apply only when necessary. Italso would insist on the importance <strong>of</strong> the Recommendation Rec(2003)5 adopted on 16April 2003 by the Committee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe, on measures <strong>of</strong>detention <strong>of</strong> asylum seekers. It recalls that according to this Recommendation, theexclusive grounds on which asylum seekers can be detained are the following ones:when their identity, including their nationality, is questioned and requires to bechecked in particular in the case <strong>of</strong> when the asylum seekers has destroyed his or hertravel or identity documents or used fraudulent documents in order to mislead theauthorities <strong>of</strong> the host state; when elements on which the asylum claim is based have toCFR-CDF.Conclusions.2003.en

26EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSbe determined and cannot be determined without this measure <strong>of</strong> detention; when adecision has to be made regarding their right to enter the territory <strong>of</strong> the Stateconcerned or when the protection <strong>of</strong> national security or public order requires it.With regard to the detention <strong>of</strong> persons after a criminal conviction, the Network hasidentified a number <strong>of</strong> difficulties in the Member States. The Network is concernedthat in Cyprus, because <strong>of</strong> the lack <strong>of</strong> a Parole Board examining the individual cases<strong>of</strong> life detainees with the prospect <strong>of</strong> their release, “life sentence” in this Stateeffectively means the imprisonment <strong>of</strong> a detainee for the rest <strong>of</strong> his life. In Latvia also,the judicial review procedure <strong>of</strong> a detention appears still not to comply withrequirements <strong>of</strong> Article 5 <strong>of</strong> the European Convention on Human Rights. The Networknotes that violations <strong>of</strong> Article 5(4) <strong>of</strong> the European Convention on Human Rightswere found in respect <strong>of</strong> the United Kingdom on account <strong>of</strong> the fact that that thecontinued detention <strong>of</strong> prisoners subject to mandatory sentences <strong>of</strong> life imprisonmentafter the expiry <strong>of</strong> the tariff period was subject only to reviews by a body - the ParoleBoard - which did not have any power to order their release but could only makerecommendations to the Secretary <strong>of</strong> State and which did so without any oral hearingor opportunity to cross-examine witnesses (Eur.Ct.H.R., Von Bülow v UnitedKingdom, 7 October 2003 and Eur.Ct.H.R., Wynne v United Kingdom (no 2), 16October 2003). The Network is aware that the Secretary <strong>of</strong> State announced interimmeasures applicable to the release <strong>of</strong> mandatory life sentence prisoners applicable toreviews from 1 January 2003, however it is <strong>of</strong> the view that more structural reform isrequired. It welcomes in this respect the reform in Scotland effected by the CriminalJustice (Scotland) Act 2003.The Network has serious concerns, which has already expressed previously, about thecontinued and indefinite nature <strong>of</strong> the detention without trial being used in the UnitedKingdom in respect <strong>of</strong> certain suspected terrorists, particularly given the possibility <strong>of</strong>using less restrictive surveillance techniques, and also the limited scope forchallenging the evidence used to justify this detention in individual cases.The insufficiency <strong>of</strong> the guarantees afforded to persons detained in psychiatricinstitutions appears also in a number <strong>of</strong> reports. In the Czech Republic, the proceduralrights <strong>of</strong> ill persons detained in a psychiatric or other health care institution are weakerin comparison with persons subject to criminal prosecution. In its ConcludingComments on Estonia, the Human Rights Committee expressed its concern at someaspects <strong>of</strong> the administrative procedure related to the detention <strong>of</strong> a person for mentalhealth reasons, in particular the patient’s right to request termination <strong>of</strong> detention, and,in the light <strong>of</strong> the significant number <strong>of</strong> detention measures that had been terminatedafter 14 days, the legitimate character <strong>of</strong> some <strong>of</strong> these detentions(CCPR/CO/77/EST). Similarly in Greece, it seems necessary to amend the existingregulation <strong>of</strong> the detention <strong>of</strong> persons for mental health reasons in order inter alia, t<strong>of</strong>urther strengthen the judicial review <strong>of</strong> their detention.In Cyprus, the prospect <strong>of</strong> imprisonment <strong>of</strong> a debtor due to his/her inability to pay thefixed monthly instalments, poses issues <strong>of</strong> compatibility with Article 11 <strong>of</strong> theInternational Covenant <strong>of</strong> Civil and Political Rights and Article 1 <strong>of</strong> Protocol N°4 <strong>of</strong>the European Convention <strong>of</strong> Human Rights that lay down the prohibition <strong>of</strong>deprivation <strong>of</strong> liberty on the ground <strong>of</strong> inability to fulfil a contractual obligation.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200327Positive aspects and good practicesThe Network notes with interest that the Netherlands have organized a “detainees survey”,the results <strong>of</strong> which were published in November 2003, with thhe aim <strong>of</strong> identifyingdifferences between institutions and – following new surveys in the future – to map outtrends. This survey involved some 10,000 detainees, from among the entire prison population,who were asked questions concerning their well-being.The Network notes with satisfaction that in Lithuania, the new Code <strong>of</strong> Criminal Procedureand the new Criminal Code came into force on 1 May 2003, providing for better safeguardsagainst arbitrary detention, and limiting the number <strong>of</strong> crimes for which imprisonment couldbe imposed, with a view to reducing overcrowding in prisons.The Network also notes with interest the judgment n° 253 <strong>of</strong> 2 July 2003 <strong>of</strong> the ConstitutionalCourt in Italy, which finds Article 222 <strong>of</strong> the Penal Code to be unconstitutional, to the extentthat this provision imposed on the judge to order the detention <strong>of</strong> any person acquitted on thebasis <strong>of</strong> a finding <strong>of</strong> mental illness, thus creating an obstacle to the adoption <strong>of</strong> otherprotective measures provided in the law and which could facilitate the provision <strong>of</strong>appropriate care to the person subject to mental health problems.The Network welcomes the fact that in Hungary, the new Act on Criminal Procedureprovides for a relative maximum duration <strong>of</strong> the pre-trial detention, and also guarantees thepossibility <strong>of</strong> appeal against all decisions extending the duration <strong>of</strong> pre-trial detention [Article131.3 <strong>of</strong> the Act].The Network also welcomes the fact that the Czech Republic has followed upon therecommendations <strong>of</strong> the Committee <strong>of</strong> the Rights <strong>of</strong> the Child expressed on the secondperiodic report on the Czech Republic (CRC/C/83/Add.4) at its 852 nd and 853 rd session, heldon January 2003 and at its 862 nd session held on 31 January 2003, by creating a specializedjuvenile judiciary in the Law on Juvenile Judiciary (Zák. . 218/ 2003Sb. o soudnictví vevcech mládeže (Law No. 218/ 2003 Coll. <strong>of</strong> Law on Juvenile Judiciary)), and by providingthat these specialised tribunals should give priority to prevention and rehabilitation. .The Network also wishes to acknowledge the steps which have been taken by the authorities<strong>of</strong> the Czech Republic to improve the conditions under which aliens are held in specificdetention centres. The Network notes in particular that the procedural rights <strong>of</strong> aliens – rightto obtain information about the asylum or/and expulsion process – have been expanded; thattheir dietary needs are better respected; and they are provided with extended time <strong>of</strong> walkouts.Moreover, the amendment to the Law on Stay <strong>of</strong> Aliens (Law No. 222/ 2003 Coll. <strong>of</strong> Laws)has repealed the provision <strong>of</strong> the Law according to which all aliens who could not beidentified were placed under the strict regime <strong>of</strong> detention. These are important steps in thegood direction.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights emphasizes that the time limits indicated in Article 17 <strong>of</strong> the CouncilFramework Decision <strong>of</strong> 13 June 2002 on the European arrest warrant and the surrenderprocedures between Member States (OJ L 190 <strong>of</strong> 18.7.2002, p. 1) should not lead theauthorities <strong>of</strong> the executing State to limit the rights guaranteed to the individual concerned byArticle 5 <strong>of</strong> the European Convention on Human Rights, the primacy <strong>of</strong> which on anyconflicting obligation imposed by the Framework Decision is reaffirmed by Article 1(3) <strong>of</strong>that instrument. Moreover, the EU Network <strong>of</strong> Independent Experts on Fundamental Rightsproposes that, when the evaluation <strong>of</strong> the European arrest warrant will be led in 2004 (Article34(3) <strong>of</strong> the Framework Decision <strong>of</strong> 13 June 2002), the Commission envisage to modifyArticle 5 <strong>of</strong> the Framework Decision to include the possibility for the executing State toCFR-CDF.Conclusions.2003.en

28EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTScondition the surrender <strong>of</strong> a person to the guarantee that he/she shall not be detained inconditions which have been found by the European Committee for the Prevention <strong>of</strong> Tortureor by the European Court <strong>of</strong> Human Rights to fail the standards imposed by Article 3 <strong>of</strong> theEuropean Convention on Human Rights.Article 7. Respect for private and family lifeState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 17 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), Article 16 <strong>of</strong> the Convention onthe Rights <strong>of</strong> the Child and Article 8 <strong>of</strong> the European Convention for the Protection <strong>of</strong> HumanRights and Fundamental Freedoms (1950).All the Member States are parties to these instruments.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights expresses thefollowing concerns with respect to the right to family life:Council Directive 2003/86/EC <strong>of</strong> 22 September 2003 on the right to familyr<strong>eu</strong>nification (OJ L 251 <strong>of</strong> 3.10.2003, p.12) provides a number <strong>of</strong> exceptions orsafeguard clauses, the implementation <strong>of</strong> which could prejudice the right to respect t<strong>of</strong>amily life in the case <strong>of</strong> when the family life cannot continue elsewhere than in thehost Member State. In this way, Article 8(2) <strong>of</strong> the Directive provides the possibilitythat, when a Member State legislation regarding family r<strong>eu</strong>nification is in force on thedate <strong>of</strong> adoption <strong>of</strong> the Directive and takes into account the State’s reception capacity,this Member State can provide a waiting period <strong>of</strong> no more than three years betweenthe submission <strong>of</strong> the application for family r<strong>eu</strong>nification and the issue <strong>of</strong> a residencepermit for the family members: this constitutes a disproportionate delay where in theabsence <strong>of</strong> the possibility for the family life to continue elsewhere, the absence <strong>of</strong>family r<strong>eu</strong>nification constitutes an interference into the right to respect to family life.Article 14(2) <strong>of</strong> directive 2003/86 says that « Member States may decide according tonational law the conditions under which family members shall exercise an employed orself-employed activity. These conditions shall set a time limit which shall in no caseexceed 12 months, during which Member States may examine the situation <strong>of</strong> theirlabour market before authorising family members to exercise an employed or selfemployedactivity ». This could lead to a form <strong>of</strong> indirect discrimination againstwomen, as in statistically the most frequent cases the wife would be arriving to join herhusband. Article 4(1) <strong>of</strong> directive 2003/86/EC provides that « where a child is agedover 12 years and arrives <strong>independent</strong>ly from the rest <strong>of</strong> his/her family, the MemberState may, before authorising entry and residence under this Directive, verify whetherhe or she meets a condition for integration provided for by its existing legislation onthe date <strong>of</strong> implementation <strong>of</strong> this Directive ». However, where the family life cannotbe pursued elsewhere, the State must put forward compelling reasons for denyingfamily r<strong>eu</strong>nification under Article 8 ECHR, and the lack <strong>of</strong> integration would not seemto qualify as such a reason : as a result, in relying upon this provision, the MemberStates may commit a disproportionate interference with the right to respect <strong>of</strong> familylife.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200329For all these reasons, the EU Network <strong>of</strong> Independent Experts on Fundamental Rightsinvites the Commission to monitor closely the implementation measures adopted bythe Member States. It recalls that, when implementing EC Law, the Member States arebound to respect the EU Charter <strong>of</strong> Fundamental Rights and the other fundamentalrights which are part <strong>of</strong> the general principles <strong>of</strong> EU Law. It also recalls that the factthat Directive 2003/86/EC provides explicitly for certain exceptions which the Statesmay choose to rely on, cannot be interpreted as meaning that any measure complyingwith the limit <strong>of</strong> such exceptions would be, per se, in compliance with the fundamentalrights recognized in European Union law. Therefore, whichever the outcome <strong>of</strong> theaction lodged with the European Court <strong>of</strong> Justice for the annulment <strong>of</strong> directive2003/86/EC, the Network stresses that a close surveillence <strong>of</strong> the implementation <strong>of</strong>this instrument by the Member States will be required, and should include averification <strong>of</strong> the compliance <strong>of</strong> the implementation measures with fundamentalrights: even if the directive is held to be compatible with fundamental rights, this by nomeans implies that any national implementation measures will present the samecompatibility.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights considers that therisks to the right to respect <strong>of</strong> family life entailed in the implementation <strong>of</strong> Directive2003/86/EC by the Member States are especially high in the present context, where anumber <strong>of</strong> Member States have imposed more stringent conditions on the right t<strong>of</strong>amily r<strong>eu</strong>nification : this is the case in France, where the Immigration Law imposeson spouses two years <strong>of</strong> common life in order to have the right to a resident card(Article 65 <strong>of</strong> the Law). Moreover the law subordinates the delivery <strong>of</strong> such adocument to the “republican integration” (“intégration républicaine”) <strong>of</strong> the cardseeker(Article 21 <strong>of</strong> the Law). In Spain the organic law 14/2003 modifying theorganic law 4/2000 regarding the rights and freedoms <strong>of</strong> foreigners in Spain and theirsocial integration, changes the system <strong>of</strong> family r<strong>eu</strong>nification for foreigners inparticular, in limiting the possibility <strong>of</strong> the so-called ‘chain r<strong>eu</strong>nification’; in theNetherlands, where the rise <strong>of</strong> the fees for the delivery <strong>of</strong> residence permits has led t<strong>of</strong>ears that it might ion certain cases constitute a disproportionate interference with theright to family life ; in Portugal, where the decree law 34/2003 <strong>of</strong> the 25 February2003 limits the right to family r<strong>eu</strong>nion to those foreigners in possession <strong>of</strong> a “validresidence permit” for at least one year, whilst foreigners in possession <strong>of</strong> a “permissionto stay” may apply fo a “residence permit” only after 5 years <strong>of</strong> legal residence inPortugal, so that newly arriving immigrants will have to wait for six years before theymay invoke a right to family r<strong>eu</strong>nion ; in Hungary, where the practical application bythe authorities <strong>of</strong> Article 14 <strong>of</strong> the 2001. évi XXXIX. törvény a külföldiek b<strong>eu</strong>tazásárólés tartózkodásáról [Act No. XXXIX <strong>of</strong> 2001 on the Entry and Stay <strong>of</strong> Foreigners],which lists the requirements in order for family members to acquire permission to stayin Hungary, leads to important problems and, indeed, in some instances to a violation<strong>of</strong> the right to family life ; in Lithuania, where the Law on Foreigners Legal Statusdoes not exclude that even persons who have a right to get a residence permit inLithuania because <strong>of</strong> family links, may be deported and therefore would have to applyfor the residence permit from abroad, which may result in the family life beinginterrupted for long periods or even indefinitely. In Austria, the Constitutional Courthad to declare in a judgment <strong>of</strong> 8 October 2003 (VfGH G 119/03 and G 120/03) thatsections 18(1)(3) and 22 <strong>of</strong> the Aliens Act 1997 in their original form wer<strong>eu</strong>nconstitutional and in violation <strong>of</strong> the European Convention on Human Rights,because these provisions, relating to the immigration quota limiting the number <strong>of</strong>foreigners who may be admitted in Austria ruled out the possibility <strong>of</strong> new arrivalsafter the quota was exhausted, without making an exception for cases <strong>of</strong> familyr<strong>eu</strong>nification.CFR-CDF.Conclusions.2003.en

30EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights expresses thefollowing concerns with respect to the right to respect for private life: In the Czech Republic, under the Law on protection <strong>of</strong> secrete information (Zákon .148/1998 Sb., o ochran utajovaných skuteností, ve znní pozdjších pedpis [LawNo. 148/1998 Coll., on Protection <strong>of</strong> Secrete Information, as amended by later laws]),the refusal by the National Security Authority <strong>of</strong> security clearance, necessary for anumber <strong>of</strong> functions and jobs in the civil administration and in the Army, may only bechallenged through a complaint to the Panel (Collegium) <strong>of</strong> state attorneys from theAttorney-General Office. There appears to be no possibility <strong>of</strong> appeal to an<strong>independent</strong> and impartial tribunal.In Spain, the changes brought to the system <strong>of</strong> interceptions <strong>of</strong> communicationsfollowing the case <strong>of</strong> Valenzuela Contreras v. Spain <strong>of</strong> the European Court <strong>of</strong> HumanRights appear insufficient to provide these interceptions with the legal framework theyrequire from the point <strong>of</strong> view <strong>of</strong> Article 8 <strong>of</strong> the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (1950). (Eur. Ct. H. R., PradoBugallo v. Spain judgment <strong>of</strong> 18 May 2003).In Estonia, the Telecommunications Act provides for access to state security <strong>of</strong>ficialsto telecommunications system in order to listen to private conversations, underconditions which appear not to comply with the requirements <strong>of</strong> Article 8 <strong>of</strong> theEuropean Convention on Human Rights.In Lithuania, the draft law on amendment <strong>of</strong> Article 46 <strong>of</strong> the Law on Education(Svietimo istatymas) and the Law on Control <strong>of</strong> Precursors <strong>of</strong> Narcotic Drugs andPsychotropic Substances intends to introduce a possibility to test pupils on whetherthey use alcohol, narcotic or psychotropic substances or other substances. This mayconstitute a disproportionate interference with the right <strong>of</strong> the child to privacy. In Malta, despite the judgment <strong>of</strong> the Constitutional Court delivered on 10 May 2003in the case <strong>of</strong> Joseph Hili v. Avukat Generali, the law still has not been amended toauthorize the Director <strong>of</strong> Public Registry to modify the birth certificate <strong>of</strong> transsexualpersons. Furthermore, the national law still distinguishes between legitimate andillegitimate children creating negative legal effects on those born out <strong>of</strong> wedlockincluding participation in all aspects <strong>of</strong> family life.The Network notes that, in the United Kingdom, stop and search powers aredisproportionately used against persons belonging to ethnic minority groups.In Latvia, legislation does not envisage any provision <strong>of</strong> information to third personsthat their names have come up in criminal proceedings or operative investigationsbecause <strong>of</strong> telephone tapping or the opening <strong>of</strong> correspondence. This is especiallyproblematic since information gathered as part <strong>of</strong> operative investigation becomesState secret with no rights <strong>of</strong> access and claim.Unresolved legal issues concerning access to abortion services in Ireland remain acause <strong>of</strong> ongoing concern with a case involving a pregnant 14-year old girl in carebeing reported in December 2003 as a result <strong>of</strong> the District Court granting permissionto travel to the United Kingdom for the purpose <strong>of</strong> obtaining an abortion in the twentythirdweek <strong>of</strong> pregnancy.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200331The Network also notes that serious concerns have been expressed by a large coalition<strong>of</strong> Irish NGOs (CADIC) and the Irish Human Rights Commission about plans todeport non-national families whose rights <strong>of</strong> residence in Ireland have been weakenedsince the Supreme Court decision in Lobe & Osayande v. Minister for Justice, Equality& Law Reform [2003]. Previously, such families enjoyed a right <strong>of</strong> residence derivingfrom the citizenship <strong>of</strong> their Irish-born children resulting from the application <strong>of</strong> thejus soli principle in Irish citizenship law. While citizenship still remains an automaticentitlement <strong>of</strong> birth (as a matter <strong>of</strong> Irish Constitutional Law) it is now possible todeport families containing Irish citizen children and the deportation <strong>of</strong> such families isproceeding apace despite reassurances in the immediate aftermath <strong>of</strong> the SupremeCourt decision that mass deportations would not ensue. The Network recalls that anysuch deportation may only take place if it does not lead to violations <strong>of</strong> the right t<strong>of</strong>amily and private life.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has noted with interest that in Belgium, the Law <strong>of</strong> 28 January 2003regarding medical exams in the context <strong>of</strong> employment (M.B., 9 April 2003) provides that“Biological tests, medical examinations or the collection <strong>of</strong> medical information on the state<strong>of</strong> health or information on the heredity <strong>of</strong> a worker or <strong>of</strong> a candidate to work shall not beenundertaken for purposes other than those inferred from his present abilities and from thespecific characteristics <strong>of</strong> the post at stake”. In principle the law forbids the predictive geneticexamination and the human immuno-deficiency virus screening test. This prohibition may beextended to other biological tests and medical exams. The law <strong>of</strong> 28 January 2003 alsoprovides the conditions under which possible biological tests and medical exams may berequired and carried out. The non-respect <strong>of</strong> these conditions is criminally sanctioned. TheLaw moreover imposes an obligation to provide the employee or the candidate employee withthe information about that is searched, which examinations are foreseen and the groundswhich justify it. Similarly in Greece, Article 8 <strong>of</strong> the Law n° 3144/2003 (µ 3144/2003,« », ’ 111 [Law 3144/2003, « Social dialogue for the promotion <strong>of</strong>employment and social protection and other provisions » J.O. ’ 111]) protects the privacy <strong>of</strong>employees by prohibiting any mention, in the « individual booklet <strong>of</strong> pr<strong>of</strong>essional risk », <strong>of</strong>data other than the results <strong>of</strong> the medical examinations prescribed in the relevant legislation,and by strictly defining the conditions under which the medical examinations may beperformed by occupational physicians.The Network has also identified a number <strong>of</strong> positive developments and good practices whichconcern the right to respect for family life :In Belgium, a Bill seeking to complete the Civil Code with provisions relating to“social parenthood” (“parenté sociale”) (Chambre, sess. extraord., 2003, Doc. Parl., 510393/001) is based on the idea that a growing number <strong>of</strong> children are educated inrecomposed families, and proposes to create an appropriate legal framework toregulate the relationship between those children and their “social parents”, which will<strong>of</strong>ten be the new partners <strong>of</strong> their biological father or mother. The Bill in particularcontains provisions concerning joint authority on the children, the obligation to supportand the measures which should be taken where the relationship between the partnersbreaks down.In Spain, the Law n° 40/2003 <strong>of</strong> 18 November 2003 on the protection <strong>of</strong> large families(Ley 40/2003, de 18 de noviembre, de Protección a las Familias Numerosas, BOE <strong>of</strong>19 th November 2003) has extended the protection <strong>of</strong> large families to new situationsCFR-CDF.Conclusions.2003.en

32EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSsuch as the monoparental large family either <strong>of</strong> origin or ensuing from separation,death or divorce <strong>of</strong> one <strong>of</strong> the parents. The Law guarantees the protection <strong>of</strong> differentkinds <strong>of</strong> filiations as well as to situations <strong>of</strong> guardianship or receipt. The law, whichsets up a new and larger system <strong>of</strong> public aids, also applies to foreign legal residents.Still in Spain law 42/2003 <strong>of</strong> 21 November 2003 modifying both the civil code andthe law on civil procedure in the field <strong>of</strong> family relations <strong>of</strong> grandchildren with theirgrandparents (Ley 42/2003, de 21 de noviembre, de modificación del Código Civil yde la Ley de Enjuiciamiento Civil en materia de relaciones familiares de los nietos conlos abuelos, BOE <strong>of</strong> 22 nd November 2003) tackles the issue <strong>of</strong> the status <strong>of</strong>grandparents with regard to their grandchildren. This law provides that the conventionregulating the effects <strong>of</strong> a separation or a divorce can also regulate the organisation <strong>of</strong>the communications and visits <strong>of</strong> grandparents to their grandchildren.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights welcomes theSpanish Supreme Court decision that grants to a woman, after the cessation <strong>of</strong> thecommon life with her partner, a third <strong>of</strong> the goods previously acquired together withher non-married partner. This has been decided even if the goods have been registeredsolely in the name <strong>of</strong> this latter (STS <strong>of</strong> 26 January 2003). The couple had livedtogether for 20 years and had two children. The Court considered that, after such along period <strong>of</strong> common life, one <strong>of</strong> the parties cannot remain in an absolutelyunfavourable situation with regard to the other, as if the other party had not contributedto the household by his or her work, including the work at home.Finally, the Network notes that in Germany, in a case where the constitutionality <strong>of</strong>sections 1600 and 1685 Civil Code was challenged in this respect, the FederalConstitutional Court (decision <strong>of</strong> 9 April 2003 – 1 BvR 1493/96 u.a. –, NJW 2003,2151) has confirmed the position <strong>of</strong> the biological father by considering that undercertain conditions he must have the right to contest the paternity <strong>of</strong> an other man andthat he must have the right to personal access with his child, if it serves the well-being<strong>of</strong> the child.Article 8. Protection <strong>of</strong> personal dataState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter corresponds to Article 8 <strong>of</strong> the European Convention for the Protection <strong>of</strong> HumanRights and Fundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance with the requirementsformulated by Article 17 <strong>of</strong> the International Covenant on Civil and Political Rights (1966),by the Convention for the Protection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong>Personal Data (1981) and by the Additional Protocol to the Convention for the Protection <strong>of</strong>Individuals with regard to Automatic Processing <strong>of</strong> Personal Data, regarding SupervisoryAuthorities and Transborder Dataflow (2001, not yet in force).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 7Member States still have to be sign the Additional Protocol to the Convention for theProtection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong> Personal Data, regardingSupervisory Authorities and Transborder Dataflow: Estonia, Hungary, Latvia, Luxembourg,Malta, Slovenia and Spain. 14 Member States have signed this instrument but have notratified it: Austria, Belgium, Cyprus, Denmark, Finland, France, Greece, Ireland, Italy,Lithuania, the Netherlands, Poland, Portugal and the United Kingdom. The Network notesCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200333however that chapters IV and VI <strong>of</strong> Directive 95/46/EC <strong>of</strong> the European Parliament and theCouncil <strong>of</strong> 24 October 1995 on the protection <strong>of</strong> individuals with regard to the processing <strong>of</strong>personal data and on the free movement <strong>of</strong> such data (OJ L 281 <strong>of</strong> 23.11.1995) alreadycontain the guarantees enumerated in this Additional Protocol.The Network also notes that the Amendements to the Convention for the Protection <strong>of</strong>Individuals with regard to Automatic Processing <strong>of</strong> Personal Data authorizing the accession <strong>of</strong>the European Communities have been adopted by the Committee <strong>of</strong> Ministers <strong>of</strong> the Council<strong>of</strong> Europe at its 675th meeting, on 15 June 1999. It would welcome the notification by theStates parties to that Convention <strong>of</strong> their acceptation <strong>of</strong> these amendments, opening thepossibility for the European Communities to accede to the Convention.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 8 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In its first report on the implementation <strong>of</strong> Directive 95/46/EC (COM(2003) 265 final,15.5.2003), the Commission has identified three interrelated difficulties which mayexplain in certain cases, countries or sectors, a low level compliance with therequirements <strong>of</strong> data protection law, as listed in the national legislation implementingDirective 95/46/EC. First, it notes “under-resourced enforcement effort andsupervisory authorities with a wide range <strong>of</strong> tasks, among which enforcement actionshave a rather low priority » ; second, there is « patchy compliance by data controllers,no doubt reluctant to undertake changes in their existing practices to comply with whatmay seem complex and burdensome rules, when the risks <strong>of</strong> getting caught seem low »; third, the Commission is confronted with an « apparently low level <strong>of</strong> knowledge <strong>of</strong>their rights among data subjects ». The Network recalls in this regard that the ECTreaty (Art. 10 EC) imposes on the Member States an obligation to contributefaithfully to the implementation <strong>of</strong> EC Law. This must necessarily include, forinstance, an obligation to ensure an adequate financing <strong>of</strong> the <strong>independent</strong> controlauthorities created according to Article 28 <strong>of</strong> Directive 95/46/EC, and required underArticle 8(3) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights. These authorities should be giventhe means necessary for their effective functioning, in budgetary terms and byproviding them with the needed personnel. This is indispensable not only for theirindependency, but also for the very possibility for these authorities to adequatelyperform the missions assigned to them, in particular by using their investigatorypowers (which may comprise in situ inspections conducted without priorannouncements) and their powers to engage in legal proceedings where they findprivacy regulations to be violated. In the view <strong>of</strong> the Network, the financing <strong>of</strong> theseauthorities must not only be ensured and maintained, it must be improved, in line withthe extension <strong>of</strong> the supervisory functions <strong>of</strong> these authorities, which is in proportionto the development <strong>of</strong> technologies processing personal data, for example biometricsas a means <strong>of</strong> identification.The Network notes with regret that the concerns expressed by the EuropeanCommission in the evaluation report on Directive 95/46/EC three years after theimplementation measures should have been adopted, would also apply to the newCFR-CDF.Conclusions.2003.en

34EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSMember States <strong>of</strong> the Union. For instance, the amendments made in 2003 to the Lawon Legal Protection <strong>of</strong> Personal Data <strong>of</strong> Lithuania. (Asmens duomenu teisinesapsaugos istatymas), although they provide that the supervising authority (State DataProtection Inspectorate <strong>of</strong> Lithuania, Valstybin duomen apsaugos inspekcija) is<strong>independent</strong> (Article 30), at the same time maintains its legal status <strong>of</strong> a governmentalinstitution ; appointed by the government, its director remains accountable to the PrimeMinister, and the decisions <strong>of</strong> the Inspectorate may be abrogated if they are consideredto contradict the Constitution, international agreements, laws or other acts adopted bythe Parliament, as well as governmental by-laws or presidential decrees. In Slovenia,apart from certain difficulties entailed by the overlapping <strong>of</strong> functions between theInspectorate for the Protection <strong>of</strong> Personal Data and the Ombudsman, which since2001 has been conducting the role <strong>of</strong> <strong>independent</strong> institution for the protection <strong>of</strong>personal data, neither <strong>of</strong> these institutions seem to have the sufficient number <strong>of</strong>employees needed to carry out their functions properly.The Network notes that a number <strong>of</strong> recent developments have taken place concerning theconstitution <strong>of</strong> “blacklists”, especially in the banking and insurance sector (health insuranceand motor insurance), where data files are being constituted by financial credit institutions orinsurers, to limit the risks they take in granting financial loans or in agreeing to insure certainpersons. In Belgium, despite the critiques opposing the creation by a private company <strong>of</strong> adata file <strong>of</strong> tenants having defaulted in their payments and the negative opinion delivered bythe Commission for the protection <strong>of</strong> privacy (Avis n°52/2002 du 19 décembre 2002 relatif àla constitution d’un fichier externe des locataires défaillants), this datafile has becomeoperational. In Lithuania, a novel regulation <strong>of</strong> processing personal data for the assessment<strong>of</strong> creditworthiness and debt management has been included in the Law on Personal DataProtection (Asmens duomenu teisines apsaugos istatymas). In Poland, the Law on DisclosingEconomic Information <strong>of</strong> 14 February 2003 seeks to regulate the release <strong>of</strong> informationconcerning payment credibility <strong>of</strong> consumers to third parties, however “blacklists” <strong>of</strong>unreliable customers still are published on the web. In the Czech Republic, the amendment(Law No. 126/2002 Coll.) to the Law on Banks (Zákon . 21/1992 Sb., o bankách, ve znnípozdjších pedpis [Law No. 21/1992 Coll., on Banks, as amended by later laws]) authorizebanks to collect and process personal data, including sensitive data on natural persons, whichare needed in order to enable the realization a bank transaction without disproportionate legaland material risks for the bank, in conditions which appear not to be in confomity with therequirements <strong>of</strong> the Convention for the Protection <strong>of</strong> Individuals with regard to AutomaticProcessing <strong>of</strong> Personal Data. In the Slovak Republic, various institutions, particularly banksor insurance companies, exchange lists <strong>of</strong> “unreliable” persons (e.g. insolvent clients, debtors,etc.) which they exchange among themselves. Despite the fact that directive 95/46/ECimposes minimal safeguards with respect to the constitution <strong>of</strong> such data files, the divergingapproaches adopted to this question suggest that there may be a need to clarify the applicablerules, taking into account the important risk <strong>of</strong> discriminatory practices, for the acquisition <strong>of</strong>goods or the provision <strong>of</strong> services which in many cases are essential for the social andpr<strong>of</strong>essional integration <strong>of</strong> the individual.The Network is concerned that in the Czech Republic, controversies over the so-calledLustration Law (Zákon 451/1991 Sb., kterým se stanoví nkteré další pedpoklady pro výkonnkterých funkcí ve státních orgánech a organizacích, ve znní pozdjších pedpis [Law No.451/1991 Coll., on some additional conditions for exercise <strong>of</strong> certain functions in state organsand organizations, as amended by later laws]) bars access to certain public functions andemployment for persons who were before 1989 (under communist regime) members <strong>of</strong> thesecret services, their agents and collaborators, high ranking <strong>of</strong>ficials <strong>of</strong> the Communist Party<strong>of</strong> Czechoslovakia, students at the police schools in the former USSR and some othercategories <strong>of</strong> persons, under conditions which could be in violation <strong>of</strong> Article 8 <strong>of</strong> theEuropean Convention on Human Rights as interpreted by the European Court <strong>of</strong> HumanRights in the case <strong>of</strong> Rotaru v. Romania (judgment <strong>of</strong> 4 May 2000, Appl. n° 28341/95).CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200335Indeed, the certificates required for access to certain functions or types <strong>of</strong> employment arebased on data established by the former communist secret police, rather than on publiclyavailable documents relating to the activities led by an individual in the open (comp. Eur. Ct.HR, partial admissibility decision <strong>of</strong> 6 March 2003, Zdanoka v. Latvia, Appl. n° 58278/00).Although an individual has a right to challenge the certificate by a law suit against theMinistry <strong>of</strong> Interior, the court judgment cannot order the deletion <strong>of</strong> the name from the datafile. Moreover, in spite <strong>of</strong> the prohibition to publish any data from the certificate or relatedmaterials without a consent <strong>of</strong> the concerned person in Sec. 19 <strong>of</strong> the Law 451/1991 Coll., thebreach <strong>of</strong> this provision does not entail any sanction.The Network notes the tendency towards an increased used <strong>of</strong> biometric identifiers, justifiedin most cases by the need to improve security. Taking into account the increased risks <strong>of</strong>abuse and dissemination linked to the storage <strong>of</strong> biometrical cata in centralized databanks, itinsists on the need to precisely identify the aim <strong>of</strong> such use <strong>of</strong> biometric elements and toassess strictly the proportionality <strong>of</strong> such a restriction imposed on the right to private life, inaccordance with the justification put forward. In particular, referring to the position <strong>of</strong> theWorking Party on Personal Data on this subject (Working document on biometrics adopted on1 August 2003 by the Data Protection Working Party instituted under Article 29 <strong>of</strong> Directive95/46/EC (WP 80, 12168/02)), the Network insists that a clear distinction be made betweenthe use <strong>of</strong> biometrics for authentification purposes (to verify whether the document holder isindeed the person to whom the document was delivered) and the use <strong>of</strong> biometrics foridentification purposes (to verify whether a person is already identified in a system storing thebiometric information concerning a large set <strong>of</strong> persons) : only for the latter purpose willstorage <strong>of</strong> reference data in a centralized database in principle be necessary. The Networkwelcomes in this respect the decisions adopted by the Greek Data Protection Authority on th<strong>eu</strong>se <strong>of</strong> biometric identifiers in certain settings (Decision n° 52/2003, <strong>of</strong> 5 November 2003, andDecision n° 9/2003, <strong>of</strong> 31 March 2003).Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights wishes to express its concern about the transmission <strong>of</strong> Passenger NamesRecords (PNR) by airline companies operating transatlantic flights to the United StatesBureau <strong>of</strong> Customs and Border Protection. It considers this to be in violation <strong>of</strong> Article 6, d),<strong>of</strong> Council Regulation (EEC) n° 2299/89 <strong>of</strong> 24 July 1989 on a code <strong>of</strong> conduct forcomputerized reservation systems, which provides that « personal information concerning aconsumer and generated by a travel agent shall be made available to others not involved in thetransaction only with the consent <strong>of</strong> the consumer », because <strong>of</strong> the conditions under whichthe passenger is informed <strong>of</strong> the transmission <strong>of</strong> his/her pesonal data, and his/her consentsought. It notes that, until the agreement between the European Community and the UnitedStates announced by the 16 December 2003 Communication from the Commission to theCouncil and the Parliament “Transfer <strong>of</strong> Air Passenger Name Record (PNR) Data : A GlobalEU Approach” (COM(2003)826 final) is in force, any such communication <strong>of</strong> PNR data isillegal, in the absence <strong>of</strong> any adequate legal framework. Finally, the EU Network <strong>of</strong>Independent Experts on Fundamental Rights insists on the need for a thorough evaluation <strong>of</strong>the respect by the United States party <strong>of</strong> its undertakings under the agreement. Such anevaluation should include an <strong>independent</strong> audit <strong>of</strong> the implementation <strong>of</strong> the agreement.Positive aspects and good practicesThe Network welcomes the improvement brought about in Belgium by the Act <strong>of</strong> 26February 2003 (Loi du 26 février 2003 modifiant la Loi du 8 décembre 1992 relative à laprotection de la vie privée à l’égard des traitements de donnés à caractère personnel et de laLoi du 15 janvier 1990 relative à l’institution et à l’organisation d’une Banque carrefour de lasécurité sociale en vue d’aménager le statut et d’étendre les compétences de la Commissionde la protection de la vie privée, M.B., 26 juin 2003), stupulating that the Commission for theCFR-CDF.Conclusions.2003.en

36EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSprotection <strong>of</strong> privacy – currently attached to the Ministry <strong>of</strong> Justice (Service public fédéral dela Justice) – will now be constituted under the House <strong>of</strong> Representatives (Chambre desreprésentants), and will comprise sectoral committees, having the competence to instruct anddecide on requests concerning the processing and communication <strong>of</strong> data under specificlegislations. It also welcomes the launch by the Information Commissioner in the UnitedKingdom <strong>of</strong> a project which seeks to identify ways <strong>of</strong> simplifying data protection regulationsince its complexity is seen as getting in the way <strong>of</strong> ensuring that real protection is achievedin practice. The aim is to look for changes in policy and procedure, as well as revisions tosecondary legislation, which add up to fewer burdens on business but better protection forordinary people. The Network also welcomes the fact that in Austria, better protection <strong>of</strong> theprivate sphere as against other individuals and compensation also for immaterial damages willbe guaranteed by a new law as <strong>of</strong> 1 January 2004. Victims <strong>of</strong> private eavesdropping, wiretapping,outing <strong>of</strong> their sexual orientation, unwanted snapshots and the like will then beequipped with better tools <strong>of</strong> redress. The Network also notes with interest that, in Hungary,the right to privacy <strong>of</strong> students has been improved by the adoption <strong>of</strong> 2003. évi LXI. törvény[Act No. LXI <strong>of</strong> 2003] modifying 1993. évi LXXIX. törvény a közoktatásról [Act No. LXXIX<strong>of</strong> 1993 on Public Education], requiring teachers as a general rule to keep all information anddata about the student secret, although this obligation does not apply to secrecy towardsparents, if the student empowered the teacher in writing to forward information to his or herparents; and it does not apply towards third persons if both the student and his or her parentagreed in writing to the transfer <strong>of</strong> information.Article 9. Right to marry and right to found a familyState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter has the same meaning than the corresponding Article 12 <strong>of</strong> the EuropeanConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950) althoughits scope may be extended.It notes that this provision <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by both Article 23 <strong>of</strong> the International Covenant on Civil and Political Rights(1966) and the Convention on Consent to Marriage, Minimum Age for Marriage andRegistration <strong>of</strong> Marriages (1962).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 8Member States still have to be sign the Convention on Consent to Marriage: Belgium,Estonia, Latvia, Lithuania, Luxembourg, Malta, Portugal and Slovenia. 3 Member States havesigned this instrument but still have not ratified it: France, Greece and Italy.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 9 <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged to sign andratify the corresponding instruments or, if they have considered such ratification but rejectedit, to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200337Council Directive 2003/86/EC <strong>of</strong> 22 September 2003 on the right to familyr<strong>eu</strong>nification (OJ L 251 <strong>of</strong> 3.10.2003, p.12) provides that States may refuse the right t<strong>of</strong>amily r<strong>eu</strong>nification or refuse to renew the residence permit <strong>of</strong> the spouse, if it appearsthat the marriage is simulated and has been contracted for the sole purpose <strong>of</strong>benefiting from the family r<strong>eu</strong>nification (Article 16, §§ 2 and 4 <strong>of</strong> the Directive). Itwill be necessary to be particularly attentive to the investigations aiming at identifyingthe fraud to the law in order to make sure that they do not lead to disproportionateintrusions into the right <strong>of</strong> respect to private and family life <strong>of</strong> the persons targeted bythat measure. In particular, the restrictions imposed by Council Resolution <strong>of</strong> 4December 1997 on measures to be adopted on the combating <strong>of</strong> marriages <strong>of</strong>convenience (OJ n° C 382 , 16.12.1997, p. 1), should be scrupulously respected.This aspect <strong>of</strong> the implementation <strong>of</strong> directive 2003/86/EC should be closelymonitored, as there appears to be a general tendency to adopt measures against the risk<strong>of</strong> fraud to marriage, for the sake <strong>of</strong> benefitting from the existing provisions on familyr<strong>eu</strong>nification. This tendency, already identified in the developments monitored by theEU Network <strong>of</strong> Independent Experts in Fundamental Rights in 2002, has continuedduring the period under scrutiny. In France the law regarding immigration and stayaimed at establishing a presumption according to which the marriage concluded by aforeigner illegally staying on the territory would constitute a faked marriage. Moreoverthe law instituted an obligation for the public prosecutor <strong>of</strong> the Republic to transmit tothe préfet a decision <strong>of</strong> opposition to such marriage (Article 76). The Conseilconstitutionnel has now invalidated this law on the grounds that the provisions at stakewere contrary to the constitutional principle <strong>of</strong> freedom <strong>of</strong> marriage (Decision n°2003-484 DC <strong>of</strong> 20 th November 2003, Recitals 94 to 97). In Poland, registrar <strong>of</strong>ficesin many cases give incorrect instructions and refuse to accept the certificates <strong>of</strong>marriage from foreigners who are in Poland illegally, although they fulfil allconditions listed in the Law on the acts <strong>of</strong> marital status <strong>of</strong> 29 September 1986(Ustawa z dnia 29 wrzenia 1986r. Prawo o aktach stanu cywilnego, Dz.U. z 1986 r. nr36, poz. 180 [The Official Journal <strong>of</strong> 1986 No. 36 item 180]).In Cyprus, as a result <strong>of</strong> the Law 120 (I) <strong>of</strong> 2003 providing for the application <strong>of</strong> theMarriage Law 2003 to the Turkish Cypriot Community which considers that theprovisions <strong>of</strong> the Turkish Family Law (Marriage and Divorce) Law (Cap.339) and theTurkish Communal Courts Law are suspended due to the “irregular situation” createdby the Turkish invasion <strong>of</strong> 1974, a vacuum exists in regards to the execution <strong>of</strong> validreligious marriages <strong>of</strong> the Turkish Cypriot Community within the area <strong>of</strong> the Republic<strong>of</strong> Cyprus. This is a discriminatory situation, considering that section 3 (1) <strong>of</strong> TheMarriage Law 104 (I)/2003 provides that ‘marriage’ for the purposes <strong>of</strong> this law meansthe agreement towards the union in marriage concluded between a man and a womanand executed by a marriage <strong>of</strong>ficer or by a registered priest according to theRegulations <strong>of</strong> the Greek Orthodox Church or <strong>of</strong> the dogmas <strong>of</strong> the ConstitutionReligious Groups recognized by the Constitution (Latins, the Armenians and theMaronites).Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the entry into force in Belgium, on 1 June 2003, <strong>of</strong> the Act <strong>of</strong>13 February 2003 opening marriage to persons <strong>of</strong> the same sex (M.B., 28 February 2003), andit notes with satisfaction that, since the circulaire <strong>of</strong> 24 January 2004 replacing a previouscirculaire <strong>of</strong> 8 May 2003 on the Law <strong>of</strong> 13 February 2003 opening up marriage for persons <strong>of</strong>the same sex and amending certain provisions <strong>of</strong> the Civil Code, same-sex marriage isavailable in Belgium to all couples providing one <strong>of</strong> the partners has the nationality <strong>of</strong>, or isCFR-CDF.Conclusions.2003.en

38EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTShabitually residing in, a country which recognizes same-sex unions (M.B., 24.1.2004). TheEU Network <strong>of</strong> Independent Experts on Fundamental Rights notes with interest that inSweden, same-sex couples registered in a formal, legally recognised partnership may nowapply to become adoptive parents under the same conditions as those for heterosexualcouples. This constitutes also a progress in Spain with the law 3/2003 <strong>of</strong> 7 th May 2003regarding non-married couples (BOPV <strong>of</strong> 23 rd May 2003), which has been adopted by theautonomous community <strong>of</strong> the Basque country in order to regulate the rights and obligations<strong>of</strong> non-matrimonial steady unions, including homosexual couples. Moreover, also in Sweden,the new Cohabitees Act (Sambolag, SFS 2003:376) which entered into force on 1 July 2003extends the legal protection to various forms <strong>of</strong> joint households, including registeredpartners.Article 10. Freedom <strong>of</strong> thought, conscience and religionState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that paragraph 1 <strong>of</strong>this provision <strong>of</strong> the Charter corresponds to Article 9 <strong>of</strong> the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by Article 18 <strong>of</strong> the International Covenant on Civil and Political Rights (1966).Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:The status <strong>of</strong> conscientious objectors choosing a form <strong>of</strong> alternative service to militaryservice remains a matter <strong>of</strong> concern in certain States. In Cyprus, conscientiousobjectors who refused to perform reservist exercise have been prosecuted andconvicted. In Estonia, the Human Rights Committee expressed its concern about theduration <strong>of</strong> alternative service for conscientious objectors may be up to twice long asthe duration <strong>of</strong> regular military service (Concluding Observations on Estonia 2003-CCPR/CO/77/EST). In Latvia, alternative service is up to two times longer thanmilitary service (Alternative Service Law -2002). In Lithuania, alternative service lastlonger than military service and in practice, conscientious objectors have to serve inthe system <strong>of</strong> the Ministry <strong>of</strong> National Defence, they have to wear military uniformsand live in military premises. In Poland, the choice to perform an alternative service isweakened because the Ministry <strong>of</strong> Economic Affairs, Employment and Social Policydoes not ensure enough employment possibilities for the persons enlisted foralternative service.Many reports underline ongoing debates and issues regarding the wearing <strong>of</strong> headscarfand the limits <strong>of</strong> the freedom <strong>of</strong> religion. The Network is aware that restrictionsimposed on the wearing <strong>of</strong> headscarves are motivated, not by an intention todiscriminate against a particular religion or to restrict religious freedom, but by adesire to favor equal treatment between women and men and the emancipation <strong>of</strong>muslim women. However, it would emphasize that the existing case-law <strong>of</strong> theEuropean Commission <strong>of</strong> Human Rights or the European Court <strong>of</strong> Human Rights,because it developed under the specific circumstances <strong>of</strong> a predominantly islamiccountry (Eur. Commiss. HR, inadmissibility decision <strong>of</strong> 3 May 1993, Karaduman v.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200339Turkey, Appl. n° 16278/90) or concerned a specific position where the applicant couldhave influenced young schoolchildren (Eur. Ct. HR, inadmissibility decision <strong>of</strong> 15February 2001, Dahlab v. Switzerland, Appl. n° 42393/98), cannot be read asexcluding that the prohibition <strong>of</strong> headscarves in education or employment are aviolation <strong>of</strong> Article 9 <strong>of</strong> the European Convention on Human Rights. The Networknotes the important differences between domestic laws and regulations in this field.With respect to the fields <strong>of</strong> employment and education however, where the wearing <strong>of</strong>headscarves in mainly discussed, the Network wishes to draw attention to the fact thatthe ban <strong>of</strong> the headscarf in employment could lead to a violation <strong>of</strong> the provisions onnon-discrimination on the ground <strong>of</strong> religion under Council Directive 2000/78/EC <strong>of</strong>27 November 2000 establishing a General Framework for Equal Treatment inEmployment and Occupation, and that with regard to the wearing <strong>of</strong> the headscarf inschools, such a prohibition could in practice constitute an obstacle to the freemovement <strong>of</strong> persons within the European Union.Article 11. Freedom <strong>of</strong> expression and <strong>of</strong> informationState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter corresponds to Article 10 <strong>of</strong> the European Convention for the Protection <strong>of</strong>Human Rights and Fundamental Freedoms (1950) without prejudice to any restrictions whichUnion law may impose on Member States’ rights to introduce the licensing arrangementsreferred to in the third sentence <strong>of</strong> Article 10 (1) <strong>of</strong> the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (1950).It notes that this provision <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by both Article 19 <strong>of</strong> the International Covenant on Civil and Political Rights(1966) and Article 13 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989).All the Member States are parties to these instruments.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In Italy, the Parliament has approved on 2 December 2003 a draft law proposed by thegovernment regarding the “Norms <strong>of</strong> principle governing the audiovisual system andthe system <strong>of</strong> the RAI-Italian Radiotelevision SA, as well as the delegation to thegovernment <strong>of</strong> the power to adopt a unified text on audiovisual [services]”. This textprovides an important reform <strong>of</strong> the Italian legislation in the audiovisual field (radioand television). The EU Network <strong>of</strong> Independent Experts in Fundamental Rights notesthat this reform aims at modifying the principles established both in the ConstitutionalCourt Decision n°466 <strong>of</strong> 2002 and in the Constitutional Court Decision n°225concerning the modes <strong>of</strong> nomination <strong>of</strong> the members <strong>of</strong> the Board <strong>of</strong> Directors <strong>of</strong> theRAI in the perspective <strong>of</strong> its privatisation. The Network is concerned by the absence <strong>of</strong>any remedy to the problem posed by the organisation <strong>of</strong> audiovisual media in Italywith regard to the requirement to respect pluralism <strong>of</strong> the media enshrined in Article11(2) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights <strong>of</strong> the European Union. This problem hasalready been identified in both Council <strong>of</strong> Europe Parliamentary AssemblyRecommendation 1589 (2003) on "Freedom <strong>of</strong> Expression in the Media in Europe”CFR-CDF.Conclusions.2003.en

40EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSand in the European Parliament Resolution on Television without Borders adopted on4 th September 2003 (A5-0251/2003 2003:2033(INI)). The Network also is concernedabout the absence <strong>of</strong> any solution to the situation <strong>of</strong> conflict <strong>of</strong> interests created by theprivate activities <strong>of</strong> the president <strong>of</strong> the Council (Prime Minister) in the field <strong>of</strong> themedia. The bill on conflict <strong>of</strong> interests, approved by the Chamber <strong>of</strong> Deputies on 22July 2003 and currently in discussion in the Senate, does not appear to bring to thisquestion a satisfactory answer.The question <strong>of</strong> pluralism in the media is not limited to Italy. The report on Portugalhighlights the growing inter-media concentration in the hands <strong>of</strong> the same economicgroups. The Report on Austria draws the attention to the fact that the completerevision <strong>of</strong> the Press Funding Act, which generally allows for more flexibility in thedistribution <strong>of</strong> funds, was not used to extend state subsidies also to other media thanthe traditional press.The Network recalls that, for the press to effectively perform its function in ademocratic society, it must be able to criticize the way the government or its individualmembers exercise their functions and to scrutinize the acts <strong>of</strong> elected politicians. Asilustrated by the case <strong>of</strong> Scharsach and News Verlagsgesellschaft v. Austria in whichthe European Court <strong>of</strong> Human Rights found that Austria had violated Article 10 <strong>of</strong> theEuropean Convention on Human Rights (Appl. no. 39394/98, judgment <strong>of</strong> 13November 2003), a regime <strong>of</strong>fering a high decree <strong>of</strong> protection <strong>of</strong> the right toreputation <strong>of</strong> individuals may conflict with the freedom <strong>of</strong> expression <strong>of</strong> journalists,especially where this protection benefits public figures and politicians.With regard to the monitoring and control mechanisms over medias, it has to benoticed that such control procedures are not provided in all Member States. Moreoverwhen they are provided, their independence and impartiality are not always properlyensured. In Poland for instance, questions are raised regarding the independence andimpartiality <strong>of</strong> the National Council for Radio and Television. In Ireland, the settingup <strong>of</strong> a Government-appointed statutory Press Council has been denounced for anotherreason, as creating the risk <strong>of</strong> interference with editorial integrity and the right t<strong>of</strong>reedom <strong>of</strong> expression. In that same country moreover, the Freedom <strong>of</strong> Information(Amendment) Act, 2003 was passed amid considerable public controversy amending,in a number <strong>of</strong> significant respects, the Freedom <strong>of</strong> Information Act, 1997. Thechanges introduced remain a cause <strong>of</strong> acute concern - especially to the media - and arebelieved to have had an adverse impact on the use <strong>of</strong> the legislation by interestedparties. This is disappointing as the original legislation was recognised as providing fora progressive regime <strong>of</strong> freedom <strong>of</strong> information by comparison to that <strong>of</strong> many otherEuropean countries.In Spain, concerns are raised regarding the threats to journalists in the Basque Countryand complaints have been raised about the difficulty for journalists to investigate onthe banning <strong>of</strong> the Batasuna party and on the ecological disaster <strong>of</strong> the Prestige. InPoland, there is a worrying number <strong>of</strong> prosecutions against journalists revealingeconomic scandals and corruption affairs. The Network is also concerned that in theSlovak Republic, the Act on Periodic Press provides press-publishing conditions andthe need for an approval by the competent State authority, an obligation which isimposed upon foreigners (both natural persons and legal entities) and not upon Slovakcitizens and legal entities incorporated in the Slovak Republic. In Italy, the reporthighlights pressures exercised by authorities over journalists concerning certain satiricand anti-governmental broadcasts. In the Slovak Republic, the Act on periodic pressrequires a registration process carried out by the Ministry <strong>of</strong> Culture for presspublishing. Only Slovak citizens and legal entities incorporated in the Slovak RepublicCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200341have the right to press publishing provided that they meet conditions laid down by law.Non-Slovak citizens and foreign legal entities must apply for an approval to thecompetent state authority, which in its discretion may, but does not have to, grant anapproval for press publishing.Finally, the Network notes with respect to Belgium that the judgment delivered by theEuropean Court <strong>of</strong> Human Rights in the case <strong>of</strong> Ernst and Others v. Belgium illustratesthe need to better protect the right <strong>of</strong> the journalists to preserve the confidentiality <strong>of</strong>their sources, in conformity with what is proposed by Recommandation R(2000)7 onthe right <strong>of</strong> journalists not to reveal their sources <strong>of</strong> information addressed by theCommittee <strong>of</strong> Ministers <strong>of</strong> the Council <strong>of</strong> Europe to the Member States <strong>of</strong> theorganisation on 8 March 2000.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified with interest that :In Denmark and in the Czech Republic, initiatives have been taken to better preservethe pluralism in the media: in Denmark, Act (2002 :1052) and Order (2003 :1024)prevents automatic State grant to local radios or televisions in order to <strong>of</strong>fer thepossibility to the competent boards to take into account certain criteria such as thequestion whether the media at stake has a broad contact to the local society orcontributes to local media political goals such as democratic debates ; in the CzechRepublic, a recent law on Broadcasting providing that the broadcaster is obliged to<strong>of</strong>fer a balanced programme for all inhabitants without discrimination.In Finland, the new law on the freedom <strong>of</strong> expression (Act. No. 460 <strong>of</strong> 2003) appliesto both the traditional media and to publishing on Internet, which demonstrates awillingness to identify the specific problems created – for instance in the relationshipbetween freedom <strong>of</strong> expression and the right to private life – by the new media.The United Kingdom has introduced a requirement to control consolidation <strong>of</strong> mediaownership ins<strong>of</strong>ar as reasonable and practicable to ensure a sufficient plurality <strong>of</strong>views in each market for newspapers in the country (or part there<strong>of</strong>), as well as toensure a sufficient plurality <strong>of</strong> persons with control <strong>of</strong> the media enterprises serving aparticular audience and the availability <strong>of</strong> a wide range <strong>of</strong> broadcasting which (takenas a whole) is both <strong>of</strong> high quality and calculated to appeal to a wide variety <strong>of</strong> tastesand interests.With effect <strong>of</strong> 1 January 2004 a revised Press Funding Act will come into force inAustria that focuses not only on the quantity <strong>of</strong> daily newspapers and weekly journalsbut also on their quality. Funding will be newly organised under three headings andtransferred from the Federal Chancellery to the Austrian Communications Authority(KommAustria), being the supervising media authority.The Network also notes with interest that in Latvia,the Constitutional Court found thatArticle 271 <strong>of</strong> the Criminal Law providing for imprisonment term for a slander <strong>of</strong> aState <strong>of</strong>ficial is contrary to the Satversme ins<strong>of</strong>ar as the definition <strong>of</strong> a ‘state <strong>of</strong>ficial’ inthe article was overbroad, creating therefore the possibility <strong>of</strong> arbitrary interferencewith freedom <strong>of</strong> expression.CFR-CDF.Conclusions.2003.en

42EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the conclusion that the institutions <strong>of</strong> the Union, and inparticular the Commission, if they consider it desirable, have the required powers to formulaterules imposing on the Member States to take measures ensuring that pluralism in the media isrespected. It notes that amending Directive 89/552/EEC <strong>of</strong> 3 October 1989 on thecoordination <strong>of</strong> certain provisions laid down by Law, Regulation or Administrative Action inMember States concerning the pursuit <strong>of</strong> television broadcasting activities would constitutethe most economical way to do so. It notes that a revision <strong>of</strong> this instrument, in order to fulfilthe requirement <strong>of</strong> Article 11(2) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, could also lead toinserting into Directive 89/552/EEC a provision taking into account Article 9(4) <strong>of</strong> theFramework Convention for the Protection <strong>of</strong> National Minorities, and the interpretation givento that clause by the Advisory Committee for the Framework Convention, that States shouldensure that minority languages and national minorities should be reserved a sufficient quotaon the public radio and television.Article 12. Freedom <strong>of</strong> assembly and <strong>of</strong> associationState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, paragraph 1 <strong>of</strong> this provision <strong>of</strong> theCharter has the same meaning than the corresponding Article 11 <strong>of</strong> the European Conventionfor the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950) although its scope isextended to include the exercise <strong>of</strong> this right at the European level.It notes that this provision must be read in accordance with the requirements formulated byArticles 21 and 22 <strong>of</strong> the International Covenant on Civil and Political Rights (1966), byArticle 8 <strong>of</strong> the International Covenant on Economic, Social and Cultural Rights (1966), byILO Convention (n° 87) concerning Freedom <strong>of</strong> Association and Protection <strong>of</strong> the Right toOrganise (1948), by ILO Convention (n° 98) concerning the Application <strong>of</strong> the Principles <strong>of</strong>the Right to Organise and to Bargain Collectively (1949), by ILO Convention (n° 135)concerning Protection and Facilities to be Afforded to Workers’ Representatives in theUndertaking (1971), by ILO Convention (n° 154) concerning the Promotion <strong>of</strong> CollectiveBargaining (1981) by Article 5 <strong>of</strong> the European Social Charter (1961) and by Article 5 <strong>of</strong> theRevised European Social Charter (1996) .The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 15Member States still have to be sign ILO Convention (n° 154) concerning the Promotion <strong>of</strong>Collective Bargaining: Austria, Czech Republic, Denmark, Estonia, France, Germany,Ireland, Italy, Luxembourg, Malta, Poland, Portugal, United Kingdom, Slovak Republic andSlovenia. It notes also that 3 Member States still have to be sign ILO-Convention (n° 135)concerning Protection and Facilities to be Afforded to Workers’ Representatives in theUndertaking: Belgium, Ireland and Slovak Republic.The Network notes that both Article 5 <strong>of</strong> the European Social Charter (1961) and Article 5 <strong>of</strong>the Revised European Social Charter (1996) regarding the right to organise, have the samecontent. It notes that 5 Member States have not signed the Revised European Social Charter:Germany, Hungary, Latvia, Malta and Poland. 10 Member States have signed the RevisedEuropean Social Charter but have not ratified it: Austria, Belgium, Czech Republic,Denmark, Greece, Luxembourg, the Netherlands, Slovak Republic, Spain and the UnitedKingdom. Nevertheless the 5 Member States that have not signed the Revised EuropeanSocial Charter and the 10 Member States that have signed but not ratified this instrument havesigned and ratified the European Social Charter <strong>of</strong> 1961. It notes that Greece has declared notCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200343to be bound by Article 5 <strong>of</strong> the European Social Charter <strong>of</strong> 1961 and that Spain made adeclaration with regard to Article 5 <strong>of</strong> the European Social Charter <strong>of</strong> 1961.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 12 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights wishes to express itsconcern about the various limits imposed upon the freedom <strong>of</strong> assembly and association. InPoland, the Law <strong>of</strong> 23 July 2003 on the amendment <strong>of</strong> the Law on road traffic significantlylimits the freedom <strong>of</strong> assembly when the proposed assembly risks to impeding the traffic onroads. This law requires a consent for the organisation <strong>of</strong> certain types <strong>of</strong> assembly andimposes the fulfillment <strong>of</strong> a number <strong>of</strong> conditions by the organisers, which may in practicerender the legal organisation <strong>of</strong> mass street demonstration impossible. In Hungary, a number<strong>of</strong> demonstrations have been banned during the period under scrutiny, particularly underArticle 8.1 <strong>of</strong> the 1989. évi III. törvény a gyülekezési jogról [Act No. III <strong>of</strong> 1989 on the rightto assembly] which enables the Police to ban a demonstration if it “would causedisproportionate disorder to the traffic”. According to the Deputy Commissioner for CivilRights, the application <strong>of</strong> the Act No. III <strong>of</strong> 1989 on the right to assembly can lead touncertainties related to the recognition <strong>of</strong> the freedom <strong>of</strong> assembly, which does not fit therequirement <strong>of</strong> legal certainty and does not comply with the constitutional scope andconditions <strong>of</strong> the realization <strong>of</strong> the relevant basic rights. In Latvia, both the need for a writtennotification <strong>of</strong> the planned assembly and the need for a written authorisation for the proposedevent may hinder, in practice, the exercise <strong>of</strong> the freedom <strong>of</strong> assembly. In Ireland theEuropean Committee on the Prevention <strong>of</strong> Torture drew attention to allegations <strong>of</strong> use <strong>of</strong>excessive force by the police during a demonstration in Dublin on 6 May 2002 and, moreparticularly, to claims, apparently supported by video footage, that persons who had alreadybeen brought under control were repeatedly struck with batons in a potentially dangerousmanner. Seven police <strong>of</strong>ficers are facing charges in relation to the assault. Such allegations <strong>of</strong>police violence during demonstrations are not specific to Ireland. In the United Kingdom, aspecific concern is the use <strong>of</strong> baton rounds for crowd control purposes.Having examined the reports submitted by its members on the situation <strong>of</strong> fundamental rightsin the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights wishes to express its concern that in Denmark, the Government’sintervention with the clauses <strong>of</strong> the collective agreements on part-time work by adopting Acton amendment <strong>of</strong> act on implementation <strong>of</strong> the part-time directives violates ILO Conventions(n° 87) and (n°98) on the freedom <strong>of</strong> association and collective bargaining, as the Freedom <strong>of</strong>Association Committee <strong>of</strong> the ILO found in March 2003.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has noted with interest that in Portugal, Law 34/2003 recognised thepopular activities and associations (namely cultural, recreative and sport associations) as“social partners”, which will most probably enable them to participate in the preparation <strong>of</strong>the legislation and the public policies that concern them.CFR-CDF.Conclusions.2003.en

44EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSArticle 13. Freedom <strong>of</strong> the arts and sciencesState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by both Article19(2) <strong>of</strong> the International Covenant on Civil and Political Rights (1966) and Article 15 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966). Moreover, it notesthat this provision <strong>of</strong> the Charter may be subjected to the limitations authorized by Article 10<strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms(1950).All Member States are parties to these instruments.Areas <strong>of</strong> concernThe Network did not adopt any conclusions under this provision <strong>of</strong> the Charter.Article 14. Right to educationState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that paragraphs 1 and3 <strong>of</strong> this provision <strong>of</strong> the Charter have the same meaning than the corresponding Article 2 <strong>of</strong>the First Protocol to the Convention for the protection <strong>of</strong> Human Rights and FundamentalFreedoms (1952) although their scope may be extended.It notes that Articles 14(1) and 14(2) <strong>of</strong> the Charter must be read in accordance with therequirements formulated by Articles 6(2) and 13 <strong>of</strong> the International Covenant on Economic,Social and Cultural Rights (1966), by Article 28 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child(1989) and by Article 17 <strong>of</strong> the Revised European Social Charter. With respect to the right tovocational training, Article 14(1) <strong>of</strong> the Charter must be read in accordance with therequirements formulated by Article 10 <strong>of</strong> the European Social Charter or Article 10 <strong>of</strong> theRevised European Social Charter.It also notes that, with respect to children who are members <strong>of</strong> national minorities, Articles12(3) and 14(1) and (2) <strong>of</strong> the Framework Convention for the Protection <strong>of</strong> NationalMinorities (1995) should be taken into account since these provisions extend the protectionprovided by the Charter. Finally, for the interpretation <strong>of</strong> Article 14(3) <strong>of</strong> the Charter, Article13 <strong>of</strong> the Framework Convention for the Protection <strong>of</strong> National Minorities should also betaken into account since it extends the protection provided by the Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 5Member States have not signed the Revised European Social Charter, and therefore are notbound by the right to education as provided in Article 17 <strong>of</strong> that instrument: Germany,Hungary, Latvia, Malta and Poland. 10 other Member States have signed the RevisedEuropean Social Charter but have not ratified it: Austria, Belgium, Czech Republic, Denmark,Greece, Luxembourg, the Netherlands, Slovak Republic, Spain and the United Kingdom.Moreover, it notes that although it has ratified the Revised European Social Charter, Cyprushas not agreed to be bound by Article 17 <strong>of</strong> that instrument, which guarantees the right <strong>of</strong>children and young persons to social, legal and economic protection. Moreover, Article 10 <strong>of</strong>the European Social Charter and <strong>of</strong> the Revised Charter guarantee the right to vocationaltraining, and as such should be taken into consideration in the interpretation <strong>of</strong> Article 14(1)<strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights. However Estonia has not agreed to be bound byCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200345Article 10(2) and Article 10(5) <strong>of</strong> the Revised European Social Charter (1996), detailingcertain aspects <strong>of</strong> the right to vocational training, and Article 10 as a whole has not beenaccepted by the Czech Republic, Hungary and Latvia, in the framework <strong>of</strong> the EuropeanSocial Charter (1961). Finally, also under the European Social Charter, Germany has notaccepted Article 10(4), concerning certain measures to facilitate the exercise <strong>of</strong> the right tovocational training.It also notes that France still has to be sign the Framework Convention for the Protection <strong>of</strong>National Minorities. 5 other Member States have signed this instrument but have not ratifiedit: Belgium, Greece, Latvia, Luxembourg and the Netherlands.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 14 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged toaccept to be bound by Article 10 <strong>of</strong> the European Social Charter, or by Articles 10 and 17 inthe framework <strong>of</strong> their undertakings under the Revised European Social Charter, or to explaintheir reasons for not doing so and examine whether these explanations are still valid. They arealso encouraged to sign and ratify the Framework Convention for the Protection <strong>of</strong> NationalMinorities.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:Access to education for Roma Children is an important source <strong>of</strong> concern in Slovenia,where Romani children are still segregated in education (put in classes <strong>of</strong> children withspecial needs or separate classes) despite recent efforts to operate desegregation, and inHungary where approximately 20% <strong>of</strong> Romani children are put in special schoolsdesignated for children with a slight mental disability and where in 120 schools acrossthe country Roma children are taught in separate classes. In the Slovak Republic, theUN Human Rights Committee is concerned about the grossly disproportionate number<strong>of</strong> Roma children assigned to special schools designed for mentally disabled children,which causes a discriminatory effect, in contravention <strong>of</strong> article 26 <strong>of</strong> the InternationalCovenant on Civil and Political Rights and about the segregation <strong>of</strong> Roma children inthe educational (CCPR/O/78/SVK, point 18). The Committee on Economic, Social andCultural Rights also is alarmed about the low rate <strong>of</strong> primary school enrolment and thehigh drop out rates at secondary schools among Roma children (E/C.12/1/Add.81,point 18). The European Commission against Racism and Intolerance (ECRI) includedin its subjects <strong>of</strong> concern with regard to the implementation <strong>of</strong> right to education inSweden both the problems faced by children <strong>of</strong> immigrant origin in accessingeducation and the fact that Roma children seem to still be marginalised and very few<strong>of</strong> them complete secondary education (ECRI, Second report on Sweden, CRI(2003)7,§§ 46 and 61). In the Czech Republic, the education <strong>of</strong> Roma children has become apriority although Roma children are still placed in special schools aimed at childrenwith disabilities and pupils with difficulties. In Spain and Greece, the reports mentiona high dropout rate and absenteeism for Roma children.The European Committee <strong>of</strong> Social Rights concluded in 2003 that the situation in theNetherlands, the Slovak Republic, the United Kingdom, Denmark, Belgium andFinland does not comply with Article 10(4) <strong>of</strong> the European Social Charter or Article10(5) <strong>of</strong> the Revised European Social Charter, to the extent that, with respect t<strong>of</strong>inancial assistance for vocational training, these States do not guarantee the equaltreatment with nationals <strong>of</strong> non-nationals who have the nationality <strong>of</strong> States Parties toCFR-CDF.Conclusions.2003.en

46EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSthe 1961 European Social Charter or the Revised Charter lawfully resident or regularlyworking in these countries.The Network is also concerned that in the United Kingdom, the arrangements for theeducation <strong>of</strong> children in prison and belonging to certain minority groups may beinadequate.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has noted with interest the following developments :Encouraging results have been attained in Poland by programmes seeking todesegregate education <strong>of</strong> Roma children and encourage the attendance <strong>of</strong> integratedclasses with complementary teaching. Steps have been undertaken in order to improvethe access to education <strong>of</strong> Roma children also in the Slovak Republic. There, aCommission for Codification <strong>of</strong> Romani Language has been set up under the Office <strong>of</strong>the Plenipotentiary <strong>of</strong> the Slovak Government for Roma Communities. Thecodification should improve the preservation and the further development <strong>of</strong> Romaniculture and it also could be helpful in the realisation <strong>of</strong> Roma-assistants project atprimary schools. Moreover Romani language education has been introduced inprogrammes such as pre-school grades at elementary schools, teacher's assistants forRoma pupils have been recruited. In the Czech Republic, various programmes <strong>of</strong>affirmative action have been organised in order to achieve integration <strong>of</strong> Romachildren in mainstream schools.Considering the importance <strong>of</strong> access to education for the integration <strong>of</strong> newly arrivedthird country nationals, the Network notes with interest that in Belgium, a decree <strong>of</strong>the French Community organises the inclusion <strong>of</strong> newly arrived pupils by creating socalled“footbridges classes” (“classes passerelles”) in the schools that welcome at least12 <strong>of</strong> these pupils. The decree understands the “newly arrived pupils” as referring toany minor residing since less than one year on the Belgian territory, who has notfinished his or her secondary education and who is either an asylum seeker, or statelessor a national <strong>of</strong> a developing country or <strong>of</strong> a country in transition <strong>of</strong>ficially recognizedby the OECD Development Assistance Committee. The decree also provides thecreation <strong>of</strong> an Integration Board in every school concerned, which is enabled – in theabsence <strong>of</strong> pro<strong>of</strong> returned by the newly arrived person regarding his or her school yearattendance – to deliver an admissibility certificate for the appropriate school year. TheIntegration Board also decides on the duration <strong>of</strong> the attendance by the pupilconcerned <strong>of</strong> the “footbridge class”. Supplementary means are granted to these schoolsto this end. The Network takes note with satisfaction <strong>of</strong> this initiative, although it isaware that several difficulties still exist in practice and that an adequate follow-up <strong>of</strong>the efficiency <strong>of</strong> this measure must be ensured.Again with respect to Belgium, the Network also notes with satisfaction that inimplementation <strong>of</strong> the decree on equal opportunities in education (Decreet betreffendeGelijke onderwijskansen I <strong>of</strong> 28 June 2002), supplementary financial means aregranted in the Flemish Community to schools for the support <strong>of</strong> the pupils having mostdifficulties ; moreover, from 1 September 2003, under the decree “health coordination”(« zorgcoordinatie ») (Gelijke onderwijskansen II), each school <strong>of</strong>fering classses at thefundamental level will benefit from a helath policy via the “health coordinator” whowill <strong>of</strong>fer help to children having emotional or psychological difficulties.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200347In Sweden, Article 5 <strong>of</strong> the Equal Treatment <strong>of</strong> Students at Universities Act (enactedon 1/07/2003) provides that each institution <strong>of</strong> higher education shall annually preparean action plan containing, inter alia, a review <strong>of</strong> the measures required to promote theequal rights <strong>of</strong> students irrespective <strong>of</strong> their sex, ethnic belonging, sexual orientation ordisability and in order to prevent and preclude harassment.In Malta, the Employment and Training Corporation has been set up with theobjective <strong>of</strong> facilitating the finding <strong>of</strong> employment for persons depending on thedemand <strong>of</strong> the market and the personal circumstances <strong>of</strong> the applicant. Severalschemes have been put in place to assist both employers and employees to find theright placement <strong>of</strong> work and the right person for the job. Schemes <strong>of</strong> training foremployees are also subsidised by the Government so as to provide persons with skillssufficient to fill in the demands <strong>of</strong> the market. An Employment Training PlacementScheme (ETPS) has also been set up to assist employers to provide the necessarytraining to unemployed persons during the probationary period. The scheme alsoprovides the opportunity for the unemployed to upgrade their skills or acquire newskills that are relevant to the present labour market.The Network also notes with interest that, in Hungary, 2003. évi LXI. törvény [Act No.LXI <strong>of</strong> 2003] modifying 1993. évi LXXIX. törvény a közoktatásról [Act No. LXXIX <strong>of</strong>1993 on Public Education] prohibits any discrimination among children, and detailsthis requirement ; furthermore the new Law prohibits illegal segregation or forcingsomeone attending an educational institution that does not correspond to his or herneeds.The Network also notes with satisfaction that, during the period under scrutiny, theCzech Republic took further measures to improve the socio-economic situation andsocial integration <strong>of</strong> the Roma minority, with a particular effort being made in the field<strong>of</strong> educational opportunities. Noting that there still is a high percentage <strong>of</strong> Roma pupils(disproportionate to their number <strong>of</strong> population) placed in special schools, the Networkencourages the continuation <strong>of</strong> these efforts, particularly through the implementation<strong>of</strong> affirmative action programmes, programmes aimed at reintegration <strong>of</strong> Roma pupilsfrom special schools for general elementary schools, and participation <strong>of</strong> pedagogicassistants from Roma community. The Network notes the initiatives taken in this fieldby the Slovak Republic, especially by the introduction <strong>of</strong> programmes such as preschoolgrades at elementary schools, the inclusion <strong>of</strong> Romani language education, andpositions <strong>of</strong> teacher's assistants for Roma pupils. It also welcomes the creation <strong>of</strong>the Commission for codification <strong>of</strong> Romani language set up under the Office <strong>of</strong> thePlenipotentiary <strong>of</strong> the Slovak Government for Roma Communities. The codificationshould improve the preservation and the further development <strong>of</strong> Romani culture and italso could be helpful in the realisation <strong>of</strong> Roma-assistants project at primary schools.Article 15. Freedom to choose an occupation and right to engage in workState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provisionmust be read in accordance to the requirements <strong>of</strong> Article 6 <strong>of</strong> the International Covenant onEconomic, Social and Cultural Rights (1966), <strong>of</strong> Article 1(2) <strong>of</strong> the European Social Charterand <strong>of</strong> Article 1(2) <strong>of</strong> the Revised European Social Charter. Since Article 1(2) <strong>of</strong> theEuropean Social Charter regarding the effective exercise <strong>of</strong> the right to work is identical toArticle 1(2) <strong>of</strong> the Revised European Social Charter and since no specific declarations havebeen made with regard to these two provisions, all Member States are bound by their content.CFR-CDF.Conclusions.2003.en

48EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSTo ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 15 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged toaccept to be bound by Article 1(2) in the framework <strong>of</strong> their undertakings under the EuropeanSocial Charter, or to explain their reasons for not doing so and examine whether theseexplanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In 2002, in its conclusions relating to the United Kingdom and to Belgium, theEuropean Committee on Social Rights considered that sanctions imposed uponunemployed persons for refusing to take up certain employment that does notcorrespond to their educational qualifications would be in violation <strong>of</strong> Article 1(2) <strong>of</strong>the European Social Charter (Concl. XVI-1 (2002), p. 11 and p. 98). The Networkconsiders that the Decree <strong>of</strong> 4 June 2003 on the Flemish policy <strong>of</strong> integration by work(M.B., 30 June 2003) adopted in Belgium by the Flemish Region should be carefullyevaluated in the light <strong>of</strong> these conclusions and the interpretation they <strong>of</strong>fer <strong>of</strong> Article1(2) <strong>of</strong> the European Social Charter. Indeed, if this decree organizes for the benefit <strong>of</strong>“long-term immigrants” (residing since a long period in Belgium) and “newly arrivedin Belgium” (with the exception <strong>of</strong> EU citizens) who have insufficient knowledge <strong>of</strong>Dutch or a weak socio-economic position, a specific training and accompanyingmeasures, in the form <strong>of</strong> a “integration by work” programme, with a view <strong>of</strong> obtaininga durable employment, the person concerned who refuses to take part in theprogramme <strong>of</strong> integration by “appropriate employment” or whose negative attitudeleads to the interruption <strong>of</strong> the programme, may be sanctioned, as this information willbe transmitted to the competent service for the allocation <strong>of</strong> unemployment benefits or<strong>of</strong> social integration income. This tendency to “activate” social benefits to encourageparticipation in the labor market is widespread. In Poland however, the amendment tothe Law <strong>of</strong> 20 December 2002 on employment and the fight against unemployment,which came into force on 6 February 2003, imposes on the State the duty to supportpersons who remain unemployed not only by means <strong>of</strong> unemployment benefits butalso by directing certain persons to intervention. However any person, who for noapparent reason refuses to participate in intervention works or public works, loses thestatus <strong>of</strong> an unemployed person for six months (Dz.U. z 2003 r. nr 6, poz. 65 [TheOfficial Journal <strong>of</strong> 2003, No. 6 item 65]). In Austria also, the criteria for a “reasonablejob” may soon be tightened following a basic agreement <strong>of</strong> the social partnerspresented to the Government this year. The period in which the unemployed personhas the right not to accept an <strong>of</strong>fered job which is different from the one last practisedshall be reduced from one year to the first 100 days <strong>of</strong> unemployment. After thatperiod the refusal to take up an employment that the placement service considers to beadequate regularly entails cut backs <strong>of</strong> unemployment benefits. In the SlovakRepublic, according to the Employment Act, the right to unemployment benefitsdepends on the co-operation with the Labour Office and the acceptance <strong>of</strong> the <strong>of</strong>feredemployment or training courses. The failure <strong>of</strong> the job seeker to satisfy aforesaidrequirements may result into the loss <strong>of</strong> unemployment benefits. Apart from thequestion <strong>of</strong> the compatibility <strong>of</strong> this system with Article 1(2) <strong>of</strong> the European SocialCharter, this leads to a risk <strong>of</strong> abuse : according to certain reports, some employers inthe Slovak Republic request payments for their written confirmation that th<strong>eu</strong>nemployed person has visited their premises and asked for a job. The Networkencourages the public authorities to take initiatives to eliminate these practices.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200349In a number <strong>of</strong> Member States, there are findings <strong>of</strong> widespread abuse <strong>of</strong>, anddiscrimination against, foreign workers, especially residing illegally in the country,where the forms <strong>of</strong> abuse are most widespread and most serious. In Ireland, theImmigrant Council <strong>of</strong> Ireland stated at the launch <strong>of</strong> its Handbook on Immigrants’Rights and Entitlements in Ireland on 1 July 2003 that exploitation <strong>of</strong> migrant workersis quite widespread and that <strong>of</strong>ficial information about their rights and entitlements isnot accessible. Where the migrant worker depends upon having an employmentcontract for the renewal <strong>of</strong> his/her working permit, the risk <strong>of</strong> abuse by the employer ishigher. The Network notes that in Portugal for instance, a current work contract isrequired for the annual renewal <strong>of</strong> “permission to stay” permits, a situation whichplaces considerable pressure on immigrant workers. In such a situation, it could beenvisaged either to extend the renewal period to at least two years to grant more timeto those losing their jobs to find alternative employment; or, alternatively, to allow fora period <strong>of</strong> grace following the loss <strong>of</strong> employment, which might extend beyond theformal expiry date <strong>of</strong> the “permission to stay” permit.In Sweden the majority <strong>of</strong> employers have still to take specific steps to activelypromote ethnic diversity in working life. The validation <strong>of</strong> qualifications obtainedabroad continues to be problematic in Sweden. Some non-citizens are requested,without sufficient obvious justification, to pass additional tests to validate theirvocational qualifications.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has notes with interest that certain initiatives have been taken to betterprotect foreign workers from abuse or discrimination. In Finland for instance, the Parliamenthas been presented with a bill that seeks to promote the equal treatment <strong>of</strong> foreign workers inworking life and increase the possibilities <strong>of</strong> occupational safety authorities to supervise theequal treatment <strong>of</strong> foreign workers (HE 151/2003). The bill proposed the insertion in thePenal Code <strong>of</strong> a new penal provision on extorting work discrimination, where the foreigner’signorance or weaker position has been taken advantage <strong>of</strong>, is proposed for the Penal Code.However, such initiatives for the protection <strong>of</strong> the foreign workers should not imposedadministrative burdens on the employers discouraging them to recruit foreign workers.Article 16. Freedom to conduct a businessThe Network did not adopt any conclusions under this provision <strong>of</strong> the Charter.Article 17. Right to propertyState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter corresponds to requirements formulated by Article 1 <strong>of</strong> the First Protocol to theEuropean Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1952),to which all the Member States are parties.CFR-CDF.Conclusions.2003.en

50EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSAreas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes the following :The large number <strong>of</strong> judgments the European Court <strong>of</strong> Human Rights has adoptedagainst Greece during the period under scrutiny call for an urgent adaptation <strong>of</strong> theprocedures on the deprivation <strong>of</strong> property in the public interest.In Cyprus, the system set up by the Cyprus Government since 1991 for themanagement <strong>of</strong> the properties left behind by Turkish Cypriots as a result <strong>of</strong> the 1974Turkish invasion by the appointment <strong>of</strong> a custodian <strong>of</strong> such properties is a source <strong>of</strong>concern, as it may lead to violations <strong>of</strong> Article 1 <strong>of</strong> Protocol n°1 to the EuropeanConvention on Human Rights.In Latvia, a ceiling is imposed on the compensation for the property which wasrestituted but subsequently expropriated in the public interest, set at the prices on theday the property was nationalized by the Soviet regime, i.e., in 1940. Such an approachmay be contrary to the principle <strong>of</strong> reasonable compensation under Article 1 <strong>of</strong>Protocol 1 <strong>of</strong> the ECHR. The Network is aware that Latvia has entered a reservationexcluding the application <strong>of</strong> this provision to the restitution processes in Latvia.However, the Network does not see this as constituing an obstacle to identifying thepresent situation as a source <strong>of</strong> concern under Article 17 <strong>of</strong> the EU Charter <strong>of</strong>Fundamental Rights. Similarly, the Network has concerns about the situation inLithuania as illustrated by the judgement adopted by the European Court <strong>of</strong> HumanRights in Jasiuniene v. Lithuania (Appl. No.41510/98, judgment <strong>of</strong> 6 March 2003),with regard to the failure to enforce the judgement <strong>of</strong> the court on the restitution <strong>of</strong>property. It notes with interest the proposals to improve the regulation andimplementation <strong>of</strong> property rights set forth in September 2003 by the Lithuanian FreeMarket Institute (Laisvos rinkos institutas) in co-operation with the Lithuanian Centrefor Human Rights (Lietuvos zmogaus teisiu centras).Finally, the Network is concerned that issues connected with the land rights and thehunting and fishing rights for the Sámi population in Sweden are still unresolved.Positive aspects and good practicesThe Network notes with interest that in Malta, the amendments introduced to Chapter 88 <strong>of</strong>the Laws <strong>of</strong> Malta seek to hasten the procedure by which compensation is issued to theindividual after confiscation <strong>of</strong> property by a public authority, and give the individual a right<strong>of</strong> access to the competent Tribunal to seek the liquidation <strong>of</strong> such compensation.Article 18. Right to asylumState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts in Fundamental Rights notes that this provisioncontains an explicit recognition that the European Union considers itself bound by the rules <strong>of</strong>both the Convention relating to the Status <strong>of</strong> Refugees (1951) and the New York Protocolrelating to the Status <strong>of</strong> Refugees (1967). It also notes that this provision <strong>of</strong> the Charter mustbe read in accordance to the requirements formulated by Article 22 <strong>of</strong> the Convention on theRights <strong>of</strong> the Child.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200351All the Member States are parties to these instruments.Areas <strong>of</strong> concernThe EU Network <strong>of</strong> Independent Experts in Fundamental Rights notes that this provisioncontains an explicit recognition that the European Union considers itself bound by the rules <strong>of</strong>both the Convention relating to the Status <strong>of</strong> Refugees (1951) and the New York Protocolrelating to the Status <strong>of</strong> Refugees (1967). It also notes that this provision <strong>of</strong> the Charter mustbe read in accordance to the requirements formulated by Article 22 <strong>of</strong> the Convention on theRights <strong>of</strong> the Child.All the Member States are parties to these instruments.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes with concern,first, that there is a general tendency to limit the possibilities for potential asylum-seekers toeffectively lodge a claim to asylum, either upon arriving at a border-crossing point (where the<strong>of</strong>ficers in some cases refuse to register a claim to asylum and deny entry to persons seekingasylum, as in Lithuania or Austria, or because <strong>of</strong> a lack <strong>of</strong> sufficient means to adequatelyprocess asylum claims, as in Cyprus, or based on the safe country <strong>of</strong> origin as in a number <strong>of</strong>States), or when they seek to reach a maritime port <strong>of</strong> a Member State (where the vesselssuspected <strong>of</strong> transporting illegal migrants and potential asylum-seekers are intercepted andescorted to the port <strong>of</strong> origin, as in the Ulysses project <strong>of</strong> joint patrolling in the Mediterraneanby Spain, France, Italy, Portugal and the United Kingdom to intercept vessels transportingirregular migrants, or as recently stipulated in by Italy by the decree <strong>of</strong> the Ministry <strong>of</strong> HomeAffairs <strong>of</strong> 14 July 2003 regarding the “Provisions for combating illegal immigration”(Gazzetta Ufficiale 22.9.2003, n° 220)), or even before potential asylum-seekers can leave theterritory <strong>of</strong> their State <strong>of</strong> origin (by the imposition <strong>of</strong> sanctions upon carriers transportingundocumented aliens or by the presence <strong>of</strong> liaison <strong>of</strong>ficers in the ports from where asylumseekersoriginate, and which are therefore sensitive : specific concerns have been expressed inthis regard with respect to Finland, Portugal and Sweden, however this practice is notlimited to those States). The Network is also concerned by the use by the United Kingdom <strong>of</strong>a pre-entry clearance immigration control where the refusal <strong>of</strong> applications by Roma wasdisproportionately high. These practices are well documented in a number <strong>of</strong> reportssubmitted to the Network. However, the consequence <strong>of</strong> obstructing the right to asylumseekers to access territory, is to force illegal entry and reliance on criminal <strong>network</strong>s not onlyby illegal migrants who are not fearing persecution and therefore would not qualify asrefugees, but also by genuine refugees seeking protection from persecution. Th<strong>eu</strong>ndifferentiated application <strong>of</strong> migration control mechanisms on asylum-seekers and refugeesundermines the right to seek asylum could be in violation <strong>of</strong> the non-refoulement provision <strong>of</strong>Article 33 <strong>of</strong> the Geneva Convention relating to the Status <strong>of</strong> Refugees (1951). The EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights recalls that upon a proposal <strong>of</strong> itsCommittee on Migration, Refugees and Population, the Parliamentary Assembly <strong>of</strong> theCouncil <strong>of</strong> Europe on 28 January 2004 approved a recommendation “Access to assistance andprotection for asylum seekers at European seaports and coastal areas” where it states that “inthe context <strong>of</strong> their responsibilities for immigration control, [the State authorities should]conduct sea patrolling operations in such a way as to fully comply with the 1951 RefugeeConvention and the 1950 European Convention on Human Rights, by avoiding that people arereturned to countries where they would be at risk <strong>of</strong> persecution or human rights violations”.Another major source <strong>of</strong> concern to the EU Network <strong>of</strong> Independent Experts on FundamentalRights are the procedures for the determination <strong>of</strong> the claim to asylum. Particularly worryingCFR-CDF.Conclusions.2003.en

52EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSappears to be an increased reliance on so-called “accelerated procedures”, leading to theadoption <strong>of</strong> decisions concluding to the manifestly ill-founded character <strong>of</strong> asylum claimswith, in many cases, no appeal possible, or only an appeal without a suspensive effect, andtherefore lacking the effectiveness required by Article 13 <strong>of</strong> the European Convention onHuman Rights. The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes forinstance that :In Austria, Parliament voted in November 2003 for an amendment to the Asylum Act1997 (Asylgesetz) that is intended to speed up the asylum proceedings and will beapplicable as from 1 May 2004. Within 72 hours at the latest the Asylum Authorityshall then decide on the admissibility <strong>of</strong> an application in Austria. In many instancesthe possibility to present new evidence and grounds for refuge to support one’s case onappeal is ruled out. Moreover, an appeal to the Independent Federal Asylum Tribunal(Unabhängiger Bundesasylsenat) regularly does not carry suspensive effect, meaningthat deportation can be effected before a decision on the refugee status becomes final.The appeals tribunal may grant suspensive effect, though, if the appeal does not seemfutile and public interest so permit and if it is quick enough to issue its decision withinseven days despite being considerably overloaded with cases.Regarding the situation in Finland, the United Nations Committee on the Elimination<strong>of</strong> Racial Discrimination (CERD) expressed concern about the “accelerated procedure”that could lead to the immediate expulsion <strong>of</strong> the asylum-seeker as it may be enforcedwithin eight days irrespective <strong>of</strong> an appeal. In the Committee's opinion, such narrowtime limits may not allow for the proper utilization <strong>of</strong> the appeal procedure availableand may result in an irreversible situation even if the decision <strong>of</strong> the administrativeauthorities were overturned on appeal. This has also been the opinion <strong>of</strong> the Council <strong>of</strong>Europe Commissioner for Human Rights Mr Alvaro Gil-Robles in his Opinion issuedon 17 October 2003 (CommDH(2003)13) where he expressed serious criticism againstthe Government Bill for a new Aliens Act. (HE 28/2003vp) which would confirm the“accelerated procedure”. The view <strong>of</strong> the Commissioner for Human Rights is that thetimeframe <strong>of</strong> seven days for deciding upon applications involving “safe countries”should be extended to allow sufficient time to assess all facts pertaining to the case andto analyse them in light <strong>of</strong> international human rights obligations and informationabout the situation <strong>of</strong> the country; that the timeframe <strong>of</strong> eight days for the execution <strong>of</strong>the decision on refusal <strong>of</strong> entry order should be extended in order to give sufficienttime and facilities for the preparation <strong>of</strong> the applicant’s appeal, including appropriatelegal and linguistic assistance; that it should be ensured that a decision on refusal <strong>of</strong>entry not be executed as long as the time limit for appeal is not exhausted; finally, inaccordance with the case-law <strong>of</strong> the European Court <strong>of</strong> Human Rights, theCommissioner for Human Rights considers that it should be ensured that the appeal begiven an automatic effect <strong>of</strong> suspending the execution <strong>of</strong> the decision on refusal <strong>of</strong>entry, unless the court seized with the appeal decides otherwise.The European Commission against Racism and Intolerance (ECRI) recently urgedSweden to ensure that “the apparent trend [in this country] towards a tightening-up <strong>of</strong>asylum policies does not lead to a weakening <strong>of</strong> the rights <strong>of</strong> asylum seekers to obtaina full and fair consideration <strong>of</strong> their application” (ECRI, Second Report on SwedenECRI (2003)7, § 40, p. 15). Current Swedish administrative practice reveals inparticular that Roma have been regularly precluded from access to substantive asylumprocedure.Their applications for asylum have been considered “manifestlyunfounded”, which entails non-eligibility for asylum under Swedish law.The Network also has concerns about Article 19(3) <strong>of</strong> the new Asylum Law(Patvruma likums) adopted in Latvia which provides for an accelerated procedure : itCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200353shares the view expressed by the UNHCR that “the State party should ensure that thetime limits under the accelerated asylum procedure be extended, in particular for thesubmission <strong>of</strong> an appeal” (CCPR/CO/79/LVA, point 9).In the Netherlands, more and more cases are dealt with in accordance with theversnelde procedure in het aanmeldcentrum or ’AC procedure’ [accelerated procedurein reception centres] initially designed to pick out manifestly ill-founded cases (inwhich asylum seekers will obtain a negative decision within four to five days after theylodged a request): in 2000 16% <strong>of</strong> all applications for asylum was rejected within 5days, in 2001 the figure was 22%, in 2002 it was 45% and by the end <strong>of</strong> 2002 even asmany as 60%. The procedures leave a lot to be desired: a lack <strong>of</strong> time for the newlyarrived asylum seeker to get accustomed to his new environment and to understand theprocedure that he is going through; defective communication between the asylumseeker and the <strong>of</strong>ficial; growing distrust between them as a consequence <strong>of</strong> the way inwhich the interviews are organised; very limited legal assistance. Although over 30percent <strong>of</strong> child asylum seekers have their claims reviewed in the cursory ACprocedure, it has been found that interviews <strong>of</strong> children are <strong>of</strong>ten conducted in amanner inappropriate for their age and maturity and without the benefit <strong>of</strong> consistentassistance from a lawyer or guardian. A separate but related issue is the lack <strong>of</strong>suspensive effect in AC procedures. Whereas the institution <strong>of</strong> judicial remediesnormally has suspensive effect (meaning that the asylum seeker can stay in theNetherlands pending the procedure), this is different for asylum seekers rejected in theaccelerated procedure (Article 82 Aliens Act 2000).In Malta, an “accelerated procedure” according to Article 18 <strong>of</strong> the Refugees Act.applies to those applicants whose application appears prima facie to be manifestlyunfounded, or if he/she is a national or citizen <strong>of</strong> a safe country <strong>of</strong> origin, or has a right<strong>of</strong> residence in a country and has no serious risk <strong>of</strong> persecution, or if the applicant hasalready been recognised as a refugee in a safe third country or where he/she had theopportunity to apply there for refugee status before coming to Malta and there is clearevidence <strong>of</strong> his admissibility to that third country. If both the Refugee Commissionerand the Chairman <strong>of</strong> the Refugee Appeals Board <strong>independent</strong>ly come to the sameconclusion that is that the applicant falls within any <strong>of</strong> these circumstances, theapplicant will be rejected and this decision will be “final and conclusive andnotwithstanding the provisions <strong>of</strong> any other law no appeal or action for judicial reviewshall lie before the Refugee Appeals Board or before any other court <strong>of</strong> law.” (Article18(8) Refugee Law).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that, in many cases,such “accelerated procedures”, based on a presumption <strong>of</strong> inadmissibility <strong>of</strong> the claim toasylum, are relied upon when the asylum-seeker is considered to arrive from a “safe country<strong>of</strong> origin”. However, the use <strong>of</strong> this notion is contestable, ins<strong>of</strong>ar as it could lead todiscriminations between different categories <strong>of</strong> asylum-seekers, in violation <strong>of</strong> Article 3 <strong>of</strong> theGeneva Convention on the Status <strong>of</strong> Refugees. The Network notes in this regard that in itsconcluding observations on the second periodic report <strong>of</strong> Estonia (CCPR/CO/77/EST,Concluding observations <strong>of</strong> the Human Rights Committee : Estonia, 15/04/2003, C, p. 13),the Human Rights Committee was concerned that the application <strong>of</strong> the principle <strong>of</strong> “safecountry <strong>of</strong> origin” may deny the individual assessment <strong>of</strong> a refugee claim when the applicantis considered to come from a “safe” country. The Committee reminded Estonia that in orderto afford effective protection under articles 6 and 7 <strong>of</strong> the Covenant, applications for refugeestatus should always be assessed on an individual basis and that a decision declaring anapplication inadmissible should not have restrictive procedural effects such as the denial <strong>of</strong>suspensive effect <strong>of</strong> appeal (articles 6, 7 and 13 <strong>of</strong> the CCPR).CFR-CDF.Conclusions.2003.en

54EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights is concerned that, in anumber <strong>of</strong> Member States, asylum-seekers are not guaranteed adequate legal representation.In Cyprus for instance, asylum-seekers are not entitled to a free legal advice, and very few <strong>of</strong>them have the capacity to refer to a private lawyer, while the UNHCR funded legal aid projectimplemented in co-operation with KISA (local NGO) has made available only one legaladvisor. It is observed that in Cyprus there is an evident general ignorance <strong>of</strong> solicitors andother persons involved in procedures related to asylum-seekers <strong>of</strong> international refugee law,EU asylum acquis, and international human rights standards. Access to legal aid is also adifficulty for asylum-seekers in Germany, where they only have access to free legal aid aftera negative administrative decision on their asylum claim. Legal aid generally is only grantedif the judge deciding on the action or appeal holds that it is likely to be successful.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights has serious concerns aboutthe material conditions under which asylum-seekers find themselves while their application isbeing examined. In the Netherlands, some groups <strong>of</strong> asylum-seekers (esp. those awaiting theoutcome <strong>of</strong> an appeals procedure following rejection <strong>of</strong> their request in the acceleratedprocedure), are denied a right to basic material support, including food and housing. Thisleaves asylum-seekers, including families with children, entirely dependent on charity andtacit support by municipalities. In Cyprus, to this day, a significant number <strong>of</strong> asylum-seekershave to find themselves accommodation. The Reception Centre in K<strong>of</strong>inou village, can onlydeal with the most urgent accomodation needs. In its second report on Slovenia, the EuropeanCommission Against Racism and Intolerance expressed its concern about the situationregarding the accommodation <strong>of</strong> asylum seekers, who are placed in overcrowded centreswhere the conditions <strong>of</strong> life are particularly harsh. In Austria, a 2002 ministerial decreecontaining directives concerning the federal care for asylum seekers denied access to theFederal caretaking programme for asylum seekers from certain countries the Ministry deemedstable and safe enough, who therefore had little prospect <strong>of</strong> actually being granted refugeestatus. Throughout the year 2003, the rights to shelter, food clothing and social security havebeen denied to a considerable number <strong>of</strong> asylum seekers in need, who had to be taken care <strong>of</strong>by private charity institutions. Only a last minute compromise on the split <strong>of</strong> costs for thecaretaking <strong>of</strong> asylum seekers between the Federation and the Provinces prevented the worstcase scenario <strong>of</strong> thousands <strong>of</strong> applicants being left uncared on the streets over the wintermonths. The EU Network <strong>of</strong> Independent Experts in Fundamental Rights considers that suchsituations are intolerable. It therefore welcomes the Council Directive 2003/9/EC <strong>of</strong> 27January 2003 laying down minimum standards for the reception <strong>of</strong> asylum seekers (OJ L 31<strong>of</strong> 6.2.2003), and in particular its chapter II concerning the conditions <strong>of</strong> reception <strong>of</strong> asylumseekers.Finally, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights is concerned aboutthe low number <strong>of</strong> recognitions <strong>of</strong> refugees in many Member States. In Germany forexample, many genuine refugee groups such as for example Afghans, minorities from Kosovoor Iraqis are not granted protection under the Geneva Convention on the status <strong>of</strong> refugees,because <strong>of</strong> an overly restrictive interpretation <strong>of</strong> the definition <strong>of</strong> “refugee” under Article 1,A, 2°, <strong>of</strong> that instrument, which excludes victims <strong>of</strong> persecution by private agents. TheNetwork also notes with concern the particular low level <strong>of</strong> recognition <strong>of</strong> the status <strong>of</strong>refugee in Greece : the percentage <strong>of</strong> claims to asylum which were finally approved in 2003was around 0,3 %, when the average in the EU Member States is 15,8 %. The Network notesthat in its report published in October 2003, the UNHCR <strong>of</strong>fice <strong>of</strong> Athens has encourageGreece to reform its legislation on asylum and to identify practical solutions for the incomingasylum-seekers. The low level <strong>of</strong> recognition <strong>of</strong> asylum-seekers is even more problematic incountries which do not have a status <strong>of</strong> subsidiary protection, to cover those persons whichcan neither be recognized as refugees under the Geneva Convention, not be returned to theirState <strong>of</strong> origin or another State. This is the case in Belgium, where neither the practice <strong>of</strong> theGeneral Commissioner to Refugees and Stateless persons to accompany its decisions refusingto grant the status <strong>of</strong> refugee, nor the authorization to stay on the basis <strong>of</strong> exceptionalCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200355circumstances <strong>of</strong> an humanitarian nature (Article 9 alinea 3 <strong>of</strong> the Law <strong>of</strong> 15 December 1980)– which is granted on a discretionary basis and leaves the person concerned in a particularlyprecarious situation –, may be seen as substitutes for the status <strong>of</strong> subsidiary protection whichis still lacking. The Network considers that it should be remedied urgently to this lacuna <strong>of</strong>the Belgian legislation.Positive aspects and good practicesThe Network welcomes the fact that, in the Czech Republic, the procedural rights <strong>of</strong> theasylum seekers have been addionally strengthened, as a result <strong>of</strong> the entry into force <strong>of</strong> thenew Judicial Code on Administrative procedure (Zák. 150/ 2002 Sb. Soudní ád správní(Law. No. 150/ 2002 Coll. <strong>of</strong> Laws on the Judicial Code <strong>of</strong> the Administrative Procedure),and <strong>of</strong> the amendment <strong>of</strong> the Asylum Law (Law. No. 519/ 2002 Coll. <strong>of</strong> Laws). The Networkalso welcomes the adoption in that State <strong>of</strong> the Law on Temporary protection <strong>of</strong> Aliens (Zák.. 221/ 2003 Sb. o doasné ochran cizinc (Law No. 221/2003 Coll. <strong>of</strong> Laws on Temporaryprotection <strong>of</strong> Aliens)). It notes with interest that this law improves the position <strong>of</strong> personsgranted with temporary protection in the field <strong>of</strong> employment, as they now have she sameaccess to employment as persons with permanent residence permit in the Czech Republic, aswell as in the field <strong>of</strong> health care, as these persons now have right to payment <strong>of</strong> their healthinsurance from the state budget.Article 19. Protection in the event <strong>of</strong> removal, expulsion or extraditionState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that Article 19(1) <strong>of</strong>the Charter corresponds to Article 4 <strong>of</strong> Protocol n° 4 to the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (1963) and that Article 19 (2)corresponds to Article 3 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1950).It notes that Article 19(2) <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by Articles 7 <strong>of</strong> the International Covenant on Civil and Political Rights (1966),by Article 3 <strong>of</strong> the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment and Punishment (1984) and by Article 33 <strong>of</strong> the Convention relating to the Status<strong>of</strong> Refugees (1951).It also notes that the protection <strong>of</strong> the individual from removal, expulsion or extradition hasbeen developed in Article 13 <strong>of</strong> the International Covenant on Civil and Political Rights(1966), Article 1 <strong>of</strong> Protocol n° 7 to the Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1984), Article 19(8) <strong>of</strong> the Revised European Social Charter (withrespect to nationals from States parties to the Revised European Social Charter) and Article19(8) <strong>of</strong> the European Social Charter (1961) (with respect to nationals from States parties tothe European Social Charter (1961)), which states that the Parties to this instrument undertaketo secure that migrant workers lawfully residing within their territories will not be expelledunless they endanger national security or <strong>of</strong>fend against public interest or morality.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard thatGreece still has to sign the Protocol n° 4 to the Convention for the Protection <strong>of</strong> HumanRights and Fundamental Freedoms. Spain and the United Kingdom have signed thisinstrument but have not ratified it. It notes that Belgium and the United Kingdom still have tobe sign the Protocol n° 7 to the Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms. 4 other Member States have signed it but have not ratified it:Germany, the Netherlands, Portugal and Spain.CFR-CDF.Conclusions.2003.en

56EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSArticle 19(8) <strong>of</strong> the European Social Charter (1961) and Article 19(8) <strong>of</strong> the RevisedEuropean Social Charter have the same content. Among the Parties to the Revised EuropeanSocial Charter, Lithuania has declared not to be bound by Article 19(8). Among the Parties tothe European Social Charter, 7 Member States <strong>of</strong> the EU have declared not to be bound byArticle 19(8) <strong>of</strong> the European Social Charter <strong>of</strong> 1961: Austria, Czech Republic, Denmark,Hungary, Latvia, Malta and Slovak Republic.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 19 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:Belgium still has not executed the judgment <strong>of</strong> the European Court <strong>of</strong> Human Rightsin the case <strong>of</strong> Conka v. Belgium, delivered on 5 February 2002. The Network finds,indeed, that the Law <strong>of</strong> 15 December 1980 on the access to the territory, stay,establishment and removal <strong>of</strong> foreigners does not formally impose an obstacle to analien being removed from the territory while the action for annulment <strong>of</strong> the expulsionorder he or she has lodged with the Conseil d’Etat is still pending before thisjurisdiction, even where the action has been accompanied with an urgent request tosuspend the execution <strong>of</strong> the expulsion order. Moreover, a foreigner may be removedfrom the country even before the committals division <strong>of</strong> the competent First InstanceCourt has been given an opportunity to decide on the proceeding filed against thedecision to deprive him or her from his or her liberty with a view to ensuring theremoval, although the lack <strong>of</strong> such a safeguard has been found to be incompatible withArticle 5(4) <strong>of</strong> the European Convention on Human Rights.In Italy, the Law n°189/2002 on the forced removal <strong>of</strong> expelled foreigners by theadoption <strong>of</strong> an executive order does not <strong>of</strong>fer sufficient guarantees against the risk <strong>of</strong>refoulement to States where the death penaly could be applied, or where the persondeported risks to be subjected to torture or to inhuman or degrading treatments orpunishments. Indeed, the execution <strong>of</strong> the executive order to remove a person from theterritory may not be suspended by the introduction <strong>of</strong> an action seeking the annulment<strong>of</strong> such an order, a situation which does not ensure the effective protection <strong>of</strong> the right<strong>of</strong> the foreigner not to be subjected to such risks in the state <strong>of</strong> return.The state <strong>of</strong> the legislation in the Slovak Republic appears to be incompatible with theguarantee provided by Article 19(2) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights : while theparagraph 2 <strong>of</strong> Section 47 <strong>of</strong> the Act on Asylum does not allow to expel a person to anunsafe territory in any way, and constitutes the absolute prohibition <strong>of</strong> expulsion in thecase <strong>of</strong> “torture, cruel, inhuman or degrading treatment or punishment”, the paragraph1 <strong>of</strong> Section 47 <strong>of</strong> the Act on Asylum allows expelling a person to “the territory <strong>of</strong> thecountry where his/her life or freedom would be threatened on account <strong>of</strong> his/her race,religion, nationality, membership <strong>of</strong> a particular social group or political opinion”,provided that such a person “can be reasonably regarded as a danger to the security <strong>of</strong>the Slovak Republic or who has been convicted by a final judgement <strong>of</strong> a particularlyserious crime constituting a danger to the society.”CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200357In Portugal, potential asylum seekers are increasingly being returned immediatelyupon arrival, in violation <strong>of</strong> the first essential dimension <strong>of</strong> the non-refoulementprinciple: “non-rejection” at entry. The violation <strong>of</strong> the non-refoulement principle,however, also results from the tendency already evoked in these conclusions (underArticle 18 <strong>of</strong> the Charter) to deny to potential asylum-seekers the possibility to lodge aclaim to asylum, thereby making it possible to immediately return foreign nationals tothe country they arrive from, without having to examine their claim to asylum orwithout verifying whether their life or security is at risk in the State <strong>of</strong> destination.This appears to be the case, for instance, in Italy, where the Decree <strong>of</strong> the Minister <strong>of</strong>the Interior <strong>of</strong> 14 July 2003 creates a risk <strong>of</strong> refoulement and moreover could beconsidered to amount to a collective expulsion <strong>of</strong> foreigners, in the absence <strong>of</strong> anindividualized examination <strong>of</strong> the situation <strong>of</strong> each person arriving at the border.The European Commission against Racism and Intolerance (ECRI) has criticized thefact that in Sweden, certain rejected asylum-seekers were removed against their will tocountries unknown to them because <strong>of</strong> difficulties in establishing their nationality(ECRI, Second Report on Sweden, CRI(2003)7, § 39, p. 15).In Austria, the forcible return <strong>of</strong> 74 Chechnyan asylum seekers to the Czech Republicdid not only deprive these persons <strong>of</strong> their right to seek asylum but also interfered withthe principle <strong>of</strong> non-refoulement.In Sweden, no legal changes have been undertaken during 2003 with reference to theEuropean Committee <strong>of</strong> Social Rights’ conclusions and recommendations <strong>of</strong> 2002,namely that the situation in Sweden cannot be judged as compatible with Article 19Section 8 <strong>of</strong> the Revised European Social Charter, on the grounds that migrant workerswho are citizens <strong>of</strong> States Parties to the treaty in question and against whom anexpulsion order has been issued on account <strong>of</strong> their posing a threat to national securityhave no right <strong>of</strong> appeal to an <strong>independent</strong> body (European Committee <strong>of</strong> Social Rights,Conclusions 2002 (Sweden), p.17).The Network also received information according to which inadequate time was beingallowed in the United Kingdom for persons being removed to collect belongings andsettle their affairs.As regards the situation created in Ireland after the decision <strong>of</strong> the Supreme Court inthe case <strong>of</strong> Lobe & Osayande [2003] on the position <strong>of</strong> non-national families <strong>of</strong> Irishbornchildren whose right <strong>of</strong> residence is no longer considered to be ‘automatic’, theNetwork refers to its conclusions adopted under Article 7 <strong>of</strong> the Charter.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights considers that, under Directive 2003/110/EC <strong>of</strong> 25 November 2003 onassistance in cases <strong>of</strong> transit for the purposes <strong>of</strong> removal by air, the transit Member State has aduty under the international law <strong>of</strong> human rights and under Article 19 <strong>of</strong> the Charter <strong>of</strong>Fundamental Rights to examine whether the removal would put the person subject todeportation at risk, even in situations where the appreciation <strong>of</strong> the authorities <strong>of</strong> the transitState differs from the appreciation <strong>of</strong> the authorities <strong>of</strong> the requesting State. If it appears to thetransit State that the removal would be in violation <strong>of</strong> its international obligations, the transitautorisation should be revoked and the person readmitted in the requesting State at the cost <strong>of</strong>that State.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights also has noted recentinitiatives concerning the joint organisation <strong>of</strong> common flights for the removal <strong>of</strong> foreignersCFR-CDF.Conclusions.2003.en

58EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSillegally present on the territory <strong>of</strong> Member States, and which should be returned to a samedestination. The EU Network <strong>of</strong> Independent Experts on Fundamental Rights reiterates in thisrespect its fear that where one or more States announce their intention to return a group <strong>of</strong>persons to a certain destination, they may be tempted to only summarily check eachindividual situation, or even to proceed on the basis <strong>of</strong> characteristics such as nationality,ethnic origin or religion, either in the determination <strong>of</strong> the asylum claims, or in the adoption<strong>of</strong> orders to leave the territory as such. This would constitute a collective expulsion <strong>of</strong> aliens,in the meaning <strong>of</strong> Article 4 <strong>of</strong> Protocol n°4 ECHR and in the meaning <strong>of</strong> Article 19(2) <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights.Positive aspects and good practicesThe EU Network <strong>of</strong> Independent Experts in Fundamental Rights welcomes the adoption <strong>of</strong>the law on granting protection to foreigners on the territory <strong>of</strong> the Republic <strong>of</strong> Polandintroducing the institution <strong>of</strong> tolerated residence for a foreigner who cannot be expelled tohis/her country, in particular when this expulsion could only be to a country where he or shecould be subject to torture or inhuman or degrading treatment or punishment, be compelled towork, be deprived the right <strong>of</strong> a fair trial, or be punished without legal grounds in the meaning<strong>of</strong> the European Convention on Human Rights; or when this foreigner is a spouse <strong>of</strong> a Polishnational.The Network also notes with interest that in Belgium, a bill proposes the insertion in the Law<strong>of</strong> 15 December 1980 on access to the territory, stay, establishment and removal <strong>of</strong> foreigners,<strong>of</strong> a series <strong>of</strong> guarantees relating to the adoption and execution <strong>of</strong> orders to leave the territory.It is proposed that the concerned foreigner and the person assisting him or her be warned 48hours in advance <strong>of</strong> the effective execution <strong>of</strong> the order, to avoid any surprise effect whichcould prejudice the interests <strong>of</strong> the foreigner. It is also proposed that the Minister couldauthorize certain private and public services ensuring the defence <strong>of</strong> the rights <strong>of</strong> foreigners toobserve the removal, so that they can verify that all the guarantees are indeed compled with.Finally, no forced removal could take place, under the proposed bill, unless voluntaryrepatriation has clearly been proposed to the alien as an alternative (Proposition de loimodifiant la Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement etl’éloignement des étrangers, Sénat, sess. extraord., 2003, Doc. Parl., 3-70).CHAPTER III : EQUALITYArticle 20. Equality before the lawState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Articles 2(1) and 26<strong>of</strong> the International Covenant on Civil and Political Rights (1966) and by Article 14 theEuropean Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950),with respect to the rights and freedoms guaranteed in that instrument. The Preamble <strong>of</strong> theEuropean Social Charter (1961), stating that the rights listed in that instrument should berecognised without discrimination, as well as Article E <strong>of</strong> the Revised European SocialCharter, should also be taken into account. All the Member States are parties to the first twoinstruments and to either the European Social Charter or the Revised European SocialCharter.The Council <strong>of</strong> Europe Framework Convention for the Protection <strong>of</strong> National Minoritiesguarantees the members <strong>of</strong> national minorities a right to equality before the law (Article 4(1)).CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200359To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 20 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the Framework Convention for the Protection <strong>of</strong> National Minorities, or toexplain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In Austria, it is still impossible under section 53(1) <strong>of</strong> the Industrial Relations Act(Arbeitsverfassungsgesetz), for non-EEA foreign workers to be elected to workcouncils under section 53(1) <strong>of</strong> the Industrial Relations Act(Arbeitsverfassungsgesetz), as noted by the Committee <strong>of</strong> Experts on the Application<strong>of</strong> Conventions and Recommendations <strong>of</strong> the International Labor Organisation,although this situation led the UN Human Rights Committee in 2002 to find a violation<strong>of</strong> Article 26 <strong>of</strong> the International Covenant on Civil and Political Rights in this respectand despite the fact that the European Commission had initiated proceedings againstAustria before the European Court <strong>of</strong> Justice for failure to fulfil an obligation withregard to the eligibility <strong>of</strong> foreign employees in work council elections.In Estonia, foreigners cannot become members <strong>of</strong> political parties, a situation whichtriggered the concern <strong>of</strong> the Human Rights Committee in its final conclusions onEstonia released on 15 April 2003. The Network notes however that, after theaccession <strong>of</strong> Estonia to the Union, EU citizens will have the right to become members<strong>of</strong> political parties in Estonia.In Poland, persons <strong>of</strong> Polish origin living permanently on the territory <strong>of</strong> the Europeanpart <strong>of</strong> the Russian Republic before the Law <strong>of</strong> 9 November 2000 on repatriation cameinto force are discriminated under this law, in comparison with persons <strong>of</strong> Polish originliving permanently in other areas.Article 21. Non-discriminationState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Articles 2(1) and 26<strong>of</strong> the International Covenant on Civil and Political Rights (1966), by Article 2 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), by the InternationalConvention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination (1965), by Article 7 <strong>of</strong>the International Convention on the Rights <strong>of</strong> All Migrant Workers and Members <strong>of</strong> theirFamilies (1990) (with regard to the rights recognised to migrant workers and the members <strong>of</strong>their families under this instrument), by ILO Convention (n°111) concerning Discriminationin Respect <strong>of</strong> Employment and Occupation (1958), by Article 14 <strong>of</strong> the European Conventionfor the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950), by Protocol n° 12 tothe European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms(2000, not yet in force), by Article 11 <strong>of</strong> the Convention on Human Rights and Biomedicine(1997) (with regard to discrimination based on genetic features) and by Article 4 <strong>of</strong> theFramework Convention for the Protection <strong>of</strong> National Minorities (1995).CFR-CDF.Conclusions.2003.en

60EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSIt also notes that, to the extent Article 21 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights prohibits anydiscrimination on the ground <strong>of</strong> membership <strong>of</strong> a national minority, Article 27 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966) should be taken into account inthe interpretation <strong>of</strong> this provision, as well as provisions from the Framework Convention forthe Protection <strong>of</strong> National Minorities (1995) other than Article 4.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that noMember State has signed the International Convention on the Rights <strong>of</strong> All Migrant Workersand Members <strong>of</strong> their Families. It notes that Estonia has not ratified ILO Convention (n°111)concerning Discrimination in Respect <strong>of</strong> Employment and Occupation. It recalls that Francestill has to be sign the Framework Convention for the Protection <strong>of</strong> National Minorities. 5Member States have signed this instrument but still have not ratified it: Belgium, Greece,Latvia, Luxembourg and the Netherlands. It notes that 6 Member States still have to be signthe Convention on Human Rights and Biomedicine: Austria, Belgium, Germany, Ireland,Malta and the United Kingdom. 8 Member States have signed this instrument but have notratified it: Finland, France, Italy, Latvia, Luxembourg, Poland, the Netherlands and Sweden.It recalls that 8 Member States still have to be sign Protocol n° 12 to the Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms: Denmark, France, Lithuania, Malta,Poland Spain, Sweden and the United Kingdom. It notes that Cyprus is the only State that hasratified it.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 21 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:With respect to the Czech Republic (concluding observations <strong>of</strong> the Committee forthe Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination (CERD), 18 August 2003), toFinland (concluding observations <strong>of</strong> the Committee for the Elimination <strong>of</strong> All Forms<strong>of</strong> Racial Discrimination (CERD), 22 August 2003), to Poland ((concludingobservations <strong>of</strong> the Committee for the Elimination <strong>of</strong> All Forms <strong>of</strong> RacialDiscrimination (CERD), 21 March 2003), to the United Kingdom (concludingobservations <strong>of</strong> the Committee for the Elimination <strong>of</strong> All Forms <strong>of</strong> RacialDiscrimination (CERD), 10 December 2003), the socio-economic situation <strong>of</strong> theRoma minority has been considered to be unsatisfactory under the United NationsConvention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination.The concerns raised by the socio-economic state <strong>of</strong> the Roma are not limited to thosecountries. In Hungary, the life expectation <strong>of</strong> Roma is 8 to 10 years lower than theaverage population. In the Slovak Republic, the United Nations Committee onEconomic, Social and Cultural Rights has expressed its concern about the insufficiency<strong>of</strong> the legislative and administrative measures adopted to improve the socio-economiccondition <strong>of</strong> the Roma people and Roma appear to be in need <strong>of</strong> a better protectionfrom racial violence, to which the reactions <strong>of</strong> the local law enforcement <strong>of</strong>ficers havebeen in certain instances unsatisfactory.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200361In Cyprus (in the settlement <strong>of</strong> Makounta) and in Greece (in the settlements <strong>of</strong>Aspropyrgos and Spata), as in Italy (as found by the Advisory Committee <strong>of</strong> theFramework Convention for the Protection <strong>of</strong> National Minorities :ACFC/INF/OP/I(2002)007, 14 September 2001, para. 25), the conditions <strong>of</strong> life inRoma settlements are particularly difficult, and sometimes, due to the lack <strong>of</strong>affordable public transportation, <strong>of</strong> health care institutions and <strong>of</strong> accessible publiceducation, may lead to a violation <strong>of</strong> the right to health or <strong>of</strong> the right to education.In Ireland, the denial by the Irish Government in its first draft submission underInternational Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discriminationthat the Traveller Community may constitute a distinct ethnic minority rather thansimply a group characterised by the “social origin” <strong>of</strong> its members has given rise tounderstandable concerns expressed by, among others, the National ConsultativeCommittee on Racism and Inter-Culturalism (NCCRI); moreover the transfer <strong>of</strong>discrimination cases against publicans and hoteliers away from the Equality Tribunaland into the District Courts (section 19 <strong>of</strong> the Intoxicating Liquor Act 2003) could alsoresult in diminishing that protection, especially taking account the consistent resistance<strong>of</strong> the licensed trade to the effective implementation <strong>of</strong> the Equal Status Act 2000. Inthis same Member State moreover, the accommodation needs <strong>of</strong> members <strong>of</strong> theTraveller Community are not adequately met. Virtually all local authorities have failedto fulfil their statutory obligations in relation to Traveller accommodation under theHousing (Traveller Accommodation) Act, 1998. The Network notes that this problemhas been exacerbated by the implementation <strong>of</strong> the Housing (MiscellaneousProvisions) Act, 2002 which criminalises trespass on private and public lands and isbeing used to evict Traveller families from campsites many <strong>of</strong> whom are awaitinghousing provision by local authorities.In Slovenia, the specific protection benefitting the recognized autochtonous Italianand Hungarian minorities (including all the rights enumerated in Article 64 <strong>of</strong> theConstitution) is still not extended to the national communities from the formerRepublic <strong>of</strong> Yugoslavia (Croats, Serbs, Bosnians, Kosovar Albanians), despite the factthat they are numerically more important; and the legislation called for by Article 65 <strong>of</strong>the Constitution still has not been adopted, although it should improve the legalframework benefitting the Romani community. However, the new legislation securedthe Romany community the right to elect their own representatives in 20 municipalcouncils in those municipalities where Romany are autochthonous and permanentlysettled.In the Slovak Republic, Act n°74/1958 Coll. on permanent settlement <strong>of</strong> nomadicpersons, as amended, constitutes an important and unjustifiable restriction on thetraditional lifestyle <strong>of</strong> Roma and should be abolished.The Network regrets that, although the deadlines for the implementation <strong>of</strong> Directive2000/43/EC <strong>of</strong> 29 June 2000 implementing the principle <strong>of</strong> equal treatment between personsirrespective <strong>of</strong> racial or ethnic origin (OJ L 180 <strong>of</strong> 19.7.2000) and <strong>of</strong> Directive 2000/78/EC <strong>of</strong>27 November 2000 establishing a general framework for equal treatment in employment andoccupation (OJ L 303 <strong>of</strong> 2.12.2000) have expired respectively on 19 July 2003 and 2December 2003, the implementation <strong>of</strong> these Directives by the Member States is still largelyincomplete, despite the fact that a number <strong>of</strong> States have taken initiatives in 2003 to fulfilltheir obligations in this respect.CFR-CDF.Conclusions.2003.en

62EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights also notes that :In Cyprus, homosexuality is treated as a psychiatric condition leading to exemptionfrom military service, which in turn leads to denial <strong>of</strong> employment or, for instance, theobtention <strong>of</strong> a driving license. Such a situation is unacceptable and must ceaseimmediately.In Cyprus, the partial opening <strong>of</strong> check points between the two parts <strong>of</strong> the island inApril 2003 has led to an increase <strong>of</strong> employment in the South <strong>of</strong> Turkish Cypriotsresiding in the North, but the risks <strong>of</strong> discrimination by Greek Cypriot employers <strong>of</strong>this category <strong>of</strong> workers are particularly high and should be closely monitored.In Finland, the compatibility <strong>of</strong> the new Act on the Knowledge <strong>of</strong> LanguagesRequired <strong>of</strong> Personnel in Public Bodies (n°424/2003), according to which all civilservants are to know both Finnish and Swedish, with the prohibition <strong>of</strong> discriminationagainst nationals from other EU Member States, has been questioned before theConstitutional Law Committee, despite the fact that the Act (sect. 9) provides for thepossibility <strong>of</strong> a dispensation from the language requirement in each individual case.In Greece, concern has been raised regarding the fact that the Greek criminal lawpenalizing, among others, incitement to hatred or discrimination on racial grounds isnot applied in practice and does not <strong>of</strong>fer a sufficient protection to certain groups,especially the Roma minority. Greece, moreover, is one <strong>of</strong> the Member States whichhave not complied with the deadlines for the implementation <strong>of</strong> Council Directive2000/43/EC <strong>of</strong> 29 June 2000 implementing the principle <strong>of</strong> equal treatment betweenpersons irrespective <strong>of</strong> racial or ethnic origin and Directive 2000/78/EC <strong>of</strong> 27November 2000 establishing a general framework for equal treatment in employmentand occupation.In Malta, children born out <strong>of</strong> wedlock are disadvantaged vis-à-vis legitimate childrenfor the purpose <strong>of</strong> for example inheritance rights. Although the courts in Malta have onoccasion declared that this was an unconstitutional discrimination, it is urgent that thelaw is modified in this regard to remove any remaining legal uncertainty.In Sweden, a large number <strong>of</strong> ethnic and linguistic groups living in Sweden are stillnot considered to be covered by the Framework Convention for the Protection <strong>of</strong>National Minorities.In Ireland, the Government has made the announcement that the Equality Authorityand ODEI-Equality Tribunal were to be “de-centralised” or re-located from Dublin toRoscrea, a town in Co. Tipperary. The Network shares the concerns which have beenexpressed that this may impact adversely on the accessibility afforded to claimants andrespondents alike by having the ODEI-Equality Tribunal located in the capital city aswell as on the centrality and proximity <strong>of</strong> the Equality Authority vis-à-vis other policymakingagencies located in Dublin.In a number <strong>of</strong> States, an increase <strong>of</strong> prejudices against the Muslim community hasbeen reported. In the Netherlands, various statistics – which may only represent the‘tip <strong>of</strong> the iceberg’ according to the EUMC – suggest a high number <strong>of</strong> bothislamophobic and anti-Semitic incidents.The European Commission against Racism and Intolerance commended Sweden in itssecond report on Sweden in 2003 for recent initiatives to combat racism anddiscrimination but it noted the increase in the number <strong>of</strong> islamophobic incidents,CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200363including the difficulties faced by women wearing the hijab in finding employment(ECRI, Second Report on Sweden, CRI(2003)7, § 56, p. 20). The Committee on theElimination <strong>of</strong> Racial Discrimination, in its Concluding Observations on the UnitedKingdom (CERD/C/63/CO/11, 10 December 2003, § 21), was concerned aboutreported cases <strong>of</strong> Islamophobia following the 11 September attacks and also regrettedthat incitement to racially motivated religious hatred was not outlawed. The EuropeanCommission against Racism and Intolerance in its second report on Luxembourg(ECRI, Second Report on Luxembourg, CRI(2003)38) noticed a decrease <strong>of</strong> toleranceby the media following 11 September events that finds expression in an increase <strong>of</strong>prejudices and stereotypes against Muslims. In Estonia, the 162 890 “non-citizens” represented 12 % <strong>of</strong> the total population, on 31October 2003. Out <strong>of</strong> a total 1 356 045 inhabitants living in Estonia on that date,another 80,6 % (1 092 633 persons) are Estonian citizens, 6,5 % (88 202 persons) areRussian citizens, and 0,9 % (12 320 persons) have the nationality from anothercountry. The Network notes that non-citizens in Estonia cannot take part inparliamentary elections, however, they can vote and run in elections for localmunicipalities. It also notes that state education is provided in Russian at theelementary and secondary school level (the Estonian language being then taught as one<strong>of</strong> the subjects), although the Estonian parliament has decided on a timetable for abigger share <strong>of</strong> subjects in Russian secondary schools to be taught in Estonianlanguage in the future.The Network notes that in its final conclusions published on April 15, 2003 following thesecond periodic report submitted by Estonia, the UN Human Rights Committee expressed itsconcern at the high number <strong>of</strong> stateless persons in Estonia and the comparatively low number<strong>of</strong> naturalizations, and it recommended that Estonia reduce the number <strong>of</strong> stateless persons,with priority for children, inter alia by encouraging their parents to apply for Estoniancitizenship on their behalf and by promotion campaigns in schools. The Network shares thisview. Although including a language test requirement as a naturalization condition cannot becriticized as such, provided that such a test is organized in conditions which are transparentand non-discriminatory, the Network takes the view that Estonia should send a more clearsignal to its non-citizens that citizenship is both worth acquiring and acquirable. Informationcampaigns for the non-citizens to encourage them getting citizenship are desirable. Estoniashould also make further efforts in making the study <strong>of</strong> Estonian language accessible in allregions <strong>of</strong> the country. In this respect, the Network encourages the recent campaign that thestate gives back the money spent for a language course if the person has succeeded in thecitizenship exam.The Network notes that a similar problem exists in Latvia, where there are 494 319 noncitizensresiding among a population <strong>of</strong> 2 324 183. The Network welcomes the fact thatalthough they have not completely disappeared yet, differences <strong>of</strong> treatment based on thestatus <strong>of</strong> non-citizens nevertheless are increasingly considered with suspicion. This trendshould be encouraged and any remaining discrimination removed. The Network alsoencourages Latvia to follow upon the recommendation <strong>of</strong> the Committee for the Elimination<strong>of</strong> Racial Discrimination that non-citizens be allowed to take part in local elections(CERD/C/63/CO/8, 22 August 2003, point 15). The Network emphasizes that such aparticipation could create a greater sense <strong>of</strong> belonging to the Latvian community andtherefore constitute an incentive for the acquisition <strong>of</strong> the Latvian citizenship.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the fact that, in conformity with its communication on “Bettermonitoring <strong>of</strong> the application <strong>of</strong> Community Law” (COM(2002)725 final, <strong>of</strong> 20.12.2002),where it states that it will afford a high level <strong>of</strong> priority to pursuing the infringments <strong>of</strong> ECCFR-CDF.Conclusions.2003.en

64EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSlaw which are “violations <strong>of</strong> the human rights or fundamental freedoms enshrined insubstantive Community law” (point 3.1.), the European Commission has closely monitoredthe transposition directives 2000/43/EC <strong>of</strong> 29 June 2000 and 2000/78/EC <strong>of</strong> 27 November2000 based on Article 13 EC, and will launch infringment proceedings against the MemberStates where the transposition remains unsatisfactory. At the same time, the EU Network <strong>of</strong>Independent Experts on Fundamental Rights notes that certain aspects <strong>of</strong> the abovementioneddirectives may require clarification, for instance by the adoption <strong>of</strong> an interpretativecommunication. The single most important issue in this regard concerns the relationshipbetween the need to combat indirect discrimination or to adopt certain positive actionmeasures, and the protection <strong>of</strong> sensitive data relating in particular to race or ethnic origin, orreligion.However, considering the specificity <strong>of</strong> the situation <strong>of</strong> the Roma, whose socio-economiccondition requires not only protection from discrimination but also affirmative desegregationin employment, housing, and education, the EU Network <strong>of</strong> Independent Experts onFundamental Rights invites the European Commission to consider proposing a directive basedon Article 13 EC and specifically aimed at improving the situation <strong>of</strong> the Roma population.This directive should be based on the studies documenting the situation <strong>of</strong> the Romapopulation, and take into account the relevant rules <strong>of</strong> the Council <strong>of</strong> Europe FrameworkConvention on the Protection <strong>of</strong> National Minorities as well as the interpretation <strong>of</strong> thisinstrument given by the Advisory Committee established under its Article 26. It shouldprovide that effective accommodations will be made to ensure the Roma will be able tomaintain their traditional lifestyle, when they have chosen the nomadic or semi-nomadicmode <strong>of</strong> life, without being forced into sedentarisation. It should take account the need toeffectuate the desegregation <strong>of</strong> the Romani communities, where this is required, especially inemployment, housing and education (see the concerns expressed in these conclusions underArticle 14 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights). It should address the question <strong>of</strong> theinaccessibility <strong>of</strong> certain social and economic rights due to the administrative situation <strong>of</strong>Roma to whom administrative documents are denied or who are considered stateless. The EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights recalls in this respect that such aninitiative may be called for by the European Parliament (Article 192, al. 2 EC).The Council <strong>of</strong> the European Union is also encouraged to resume the discussions on theadoption <strong>of</strong> a Framework Decision on combating racism and xenophobia, as proposed by theCommission (COM(2001)664 final) and as advocated by the European Parliament. The EUNetwork <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that, in itsconcluding observations <strong>of</strong> 10 December 2003 concerning the United Kingdom, theCommittee for the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination (CERD) has insistedthat the obligations <strong>of</strong> the States parties under Article 4 <strong>of</strong> the UN Convention on theElimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination should not be read too restrictively, andthat these obligations should not be seen as limited by the need to respect freedom <strong>of</strong>expression, as freedom <strong>of</strong> expression does not extend to incitement to racial hatred ordiscrimination. It also notes that the Advisory Committee on the Framework Convention forthe Protection <strong>of</strong> National Minorities insists in its opinions on an effective protection <strong>of</strong>minorities from ethnically motivated crime (see e.g. concerning Sweden, where Chapter 16Section 8 <strong>of</strong> the Penal Code (BrB) which tackles racially motivated crimes appears to belacking effective application, ACFC/INF/OP/I (2003)006, 25 th <strong>of</strong> August 2003, § 23), and thatthe European Commission on Racism and Intolerance has also clearly advocated this in itsGeneral Policy Recommendation n°7 on national legislation to combat racism and racialdiscrimination (CRI(2003)8, 13 December 2002). The EU Network <strong>of</strong> Independent Expertson Fundamental Rights invites the European Parliament to address the appropriaterecommendations in this regard to the Member States, acting under the powers recognized toit by Article 39(3) EU.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200365Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified the following positive developments and good practices:In the Czech Republic, the adoption <strong>of</strong> the Law on Rights <strong>of</strong> Persons belonging toNational Minorities (n° 273/2001) and the creation <strong>of</strong> the Government Council forNational Minorities as well as the Government Council for Roma Community Affairs,has facilitated a systematic monitoring <strong>of</strong> the impact <strong>of</strong> legislation and policies on thesituation <strong>of</strong> minorities.In Greece, specific services have been set up to ensure that the Roma minority canhave facilitated access to public and social services, in the areas where their presenceis significant.In Latvia, the Center for Human Rights and Ethnic Studies has produced in August2003 a Report on the situation <strong>of</strong> Roma in Latvia, which sheds light on the situation <strong>of</strong>the 13 to 15,000 Roma <strong>of</strong> the country and constitutes the first step towards theadoption <strong>of</strong> remedial measures.In Estonia, the Legal Chancellor Act was modified in 2003 giving the LegalChancellor a new competence to arbitrate cases concerning discrimination on sexual,national or any other basis, from 1 January 2004.In 2003, certain Member States have reinforced their criminal legislation against racialdiscrimination or incitement to racial hatred : this was the case in Belgium (Law <strong>of</strong> 25February 2003), in Malta (Act III <strong>of</strong> 2002 introducing a new section 82A in theCriminal Code), in Cyprus (Law 84 (I)/2003 including a new section 47 in the PenalCode), in Hungary (where the Criminal Codes Amendments (2003) should ensure astricter criminalisation <strong>of</strong> hate speeches, when they will have entered in force), in theNetherlands (Law <strong>of</strong> 20 November 2003 increasing penal sanctions for diverse forms<strong>of</strong> discriminatory acts or incitement to discriminate on the basis <strong>of</strong> race, religion,belief, sexual orientation), or in France (loi n° 2003-88 du 3 février 2003 visant àaggraver les peines punissant les infractions à caractère raciste, antisémite ouxénophobe).The Office <strong>of</strong> Communications in the United Kingdom includes in its requirementsfor the delivery <strong>of</strong> licences the promotion <strong>of</strong> equality <strong>of</strong> opportunity in relation toemployment with the licence holder; these conditions must promote equality betweenmen and women and between different races. Licensees must also be required topromote the equalisation <strong>of</strong> opportunities for disabled persons.Certain Member States have taken initiatives to favor the promotion <strong>of</strong> integration. InAustria for example, the Provincial Government <strong>of</strong> Tirol has engaged in developingguiding principles for the integration <strong>of</strong> migrants under the EQUAL programme <strong>of</strong> theEuropean Union. Involving a wide range <strong>of</strong> different actors from politics, nongovernmentalorganisations and all administrative levels, the 2-year process will befully operational in 2004 and is intended to produce model guidelines on how toaddress the issue <strong>of</strong> integration <strong>of</strong> migrants, thereby raising the general awareness forthe situation <strong>of</strong> foreigners living in Austria. In Germany, the “Alliance for Democracyand Tolerance – against Extremism and Violence” (“Bündnis für Demokratie undToleranz – gegen Extremismus und Gewalt”), created in 2000 and now comprising800 organisations, plays an important role as a <strong>network</strong> <strong>of</strong> state and non-governmentalCFR-CDF.Conclusions.2003.en

66EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSprojects and initiatives for the prevention and combating <strong>of</strong> rightwing-extremist,xenophobic, anti-Semitic violence. In Hungary, 107/2003 (VII. 18.) Korm. rendelet[107/2003 (VII. 18.) Government Decree] created the post Minister without portfoliotesponsible for Equal Opportunities, whose activities include the fight against theexclusion <strong>of</strong> people being disadvantaged, and the realization <strong>of</strong> human dignity andequal treatment. The Network also has paid careful attention to the efforts made by theSlovak Republic with respect to the integration <strong>of</strong> the Roma, as through the adoption<strong>of</strong> resolution No. 278 <strong>of</strong> 23 April 2003 according to which supplementary financialmeans will be made available for the permanently sustainable plan concerning thesystematic education <strong>of</strong> selected pr<strong>of</strong>essional groups oriented on the prevention <strong>of</strong> allforms <strong>of</strong> discrimination, racism, xenophobia, anti-Semitism, and other demonstrations<strong>of</strong> intolerance in the period <strong>of</strong> 2004 – 2010, the setting up <strong>of</strong> regional <strong>of</strong>fices <strong>of</strong> theCommission for the solution <strong>of</strong> the problems concerning racially motivated violence,the support from the Minister <strong>of</strong> Economy to the development <strong>of</strong> small and mediumenterprises within the Roma communities, the improved accessibility <strong>of</strong> health care forthe marginal Roma community, the reinforcement <strong>of</strong> the secretariat <strong>of</strong> thePlenipotentiary <strong>of</strong> the Slovak Government for Roma minority, and the establishment<strong>of</strong> the Office for the integration <strong>of</strong> Roma communities. These are good practices whichcould inspire similar initiatives in other Member States. The adoption in the CzechRepublic <strong>of</strong> the National Strategy for Work <strong>of</strong> the Police in Relation to National andEthnic Minorities (Usnesení vlády . 85 ze dne 22.ledna 2003 k Národní strategii propráci Policie R ve vztahu k národnostním a etnickým menšinám (GovernmentResolution No. 85 <strong>of</strong> 22 January 2003, on the National Strategy for the Work <strong>of</strong> thePolice in Relation to National and Ethnic Minorities)), focusing on both Czech citizensbelonging to minorities (especially the Roma minority) and various categories <strong>of</strong>aliens, also goes in the right direction.The Network also welcomes the fact that in Poland, the Labour Code, amended by the Sejmon 14 November 2003, provides for the broadest prohibition <strong>of</strong> discrimination in employmentreferring not only to sex, age, disability, race, nationality and convictions but also religion,trade union affiliation, sexual orientation and full-time and part-time employment and for adefined and undefined period. The Network notes that the new legislation affirms theprinciple that everyone has the right to equal remuneration for equal work or for work <strong>of</strong>equal value. In Hungary, the new Act on equal treatment and the promotion <strong>of</strong> equalopportunities was adopted by Parliament in 29 December 2003.Finally, the Network notes with interest that in Latvia, the Supreme Court and the Court <strong>of</strong>first instance found that a pre-election advert <strong>of</strong> a political party, running for the seat in theParliament and advocating disrespectfully against the forth-coming flow <strong>of</strong> immigrants fromAfrica and Asia, constituted a fact <strong>of</strong> discrimination and therefore violated the honour anddignity <strong>of</strong> the two African actors and third parties affected by the advert.Article 22. Cultural, religious and linguistic diversityState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter should be interpreted taking into account in particular Article 27 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), ILO Convention (n°169)concerning Indigenous and Tribal Peoples in Independent Countries, the European Charter forRegional or Minority Languages (1992) and the Framework Convention for the Protection <strong>of</strong>National Minorities (1995).CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200367The EU Network <strong>of</strong> Independent Experts notes in this regard that Denmark and theNetherlands are the only two Member States that have ratified ILO Convention n°169. Itnotes that 7 Member States still have to be sign the European Charter for Regional orMinority Languages: Belgium, Estonia, Greece, Ireland, Latvia, Lithuania and Portugal. 6Member States have signed this instrument but have still not ratified it: Czech Republic,France, Italy, Luxembourg, Malta and Poland. It notes that France still has to be sign theFramework Convention for the Protection <strong>of</strong> National Minorities. 5 Member States havesigned this instrument but have not ratified it: Belgium, Greece, Latvia, Luxembourg and theNetherlands.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 22 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights would note inparticular that in spite <strong>of</strong> clear progress in the protection <strong>of</strong> the rights <strong>of</strong> the indigenous Samiin Finland and Sweden, there are areas <strong>of</strong> concern, in particular the issue <strong>of</strong> land rights andthe use <strong>of</strong> territory in general in the traditional areas <strong>of</strong> the Sámi, since reindeer herding,fishing and hunting are <strong>of</strong> central relevance to the protection <strong>of</strong> their culture and identity asindigenous peoples. The Network encourages Sweden to follow upon the recommendationsmade on this issue by the Advisory Committee on the Framework Convention for theProtection on National Minorities (Opinion on Sweden, ACFC/INF/OP/I(2003)006, § 29, p.9), and it encourages Finland to take into account the observations <strong>of</strong> the UN Committee forthe Elimination <strong>of</strong> Racial Discrimination (Concluding Observations on Finland(CERD/C/63/CO/5)).Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified a limited number <strong>of</strong> good practices which all the MemberStates are encouraged to seek inspiration from in formulating a fundamental rights policy intheir jurisdiction :In Finland, the Sami Language Act (n° 1086/2003) has created incentives to civilservants who wish to study the Sami language; it guarantees the right to use the Samilanguage in dealing with public authorities in certain areas; and knowledge <strong>of</strong> Samilanguage is considered a special merit in recruitment to public <strong>of</strong>fice, even where it isnot a condition <strong>of</strong> recruitment.In Portugal, a <strong>network</strong> <strong>of</strong> socio-cultural mediators has been established since 2001 toliase between parents <strong>of</strong> Roma origin and schools and, thus, to improve access toeducation <strong>of</strong> Romani children; however the Network notes in 2003 that more resourcesshould be allocated to this <strong>network</strong>, for it to function effectively.In Latvia, the government created a post <strong>of</strong> a Minister for Integration Affairs, thussignifying to the minority population that the government is committed to the goal <strong>of</strong>integration at the highest level.CFR-CDF.Conclusions.2003.en

68EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSIn Greece, the creation <strong>of</strong> specific services has been announced to ensure that theRoma community can have facilitated access to public and social services, in the areaswhere their presence is significant.Article 23. Equality between man and womenState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Articles 2(1), 3and 26 <strong>of</strong> the International Covenant on Civil and Political Rights (1966), by Articles 3 and 7,a), i) <strong>of</strong> the International Covenant on Economic, Social and Cultural Rights (1966), by theConvention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women (1979), byILO-Convention (n° 100) concerning Equal Remuneration for Men and Women Workers forWork <strong>of</strong> Equal Value (1951), by ILO Convention (n° 111) concerning Discrimination inRespect <strong>of</strong> Employment and Occupation (1958), by Article 14 <strong>of</strong> the European Conventionfor the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950), by Article 5 <strong>of</strong>Protocol n° 7 to the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (1984), by Protocol n° 12 to the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (2000, not yet in force), by Article 8<strong>of</strong> the European Social Charter, by Article 1 <strong>of</strong> the Additional Protocol <strong>of</strong> the European SocialCharter <strong>of</strong> 1961 (1988), and by Articles 8 and 20 <strong>of</strong> the Revised European Social Charter.It also notes that the Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination againstWomen has recently been reinforced by the adoption <strong>of</strong> an Optional Protocol (2000), whichimproves the international protection <strong>of</strong> rights which are equivalent to those <strong>of</strong> Article 23 <strong>of</strong>the Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 4Member States still have to be sign the Optional Protocol to the Convention on theElimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women: Estonia, Latvia, Malta and theUnited Kingdom. 3 other Member States have signed it but have not ratified it: Belgium,Lithuania and Slovenia.It notes that Estonia has not ratified ILO Convention (n° 111) concerning Discrimination inRespect <strong>of</strong> Employment and Occupation.It notes that Belgium and the United Kingdom still have to be sign Protocol n° 7 to theConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms. 4 Member Stateshave signed this instrument but have not ratified it: Germany, Portugal, Spain and theNetherlands. It also recalls that 8 Member States still have to be sign the Protocol n° 12 to theConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms: Denmark,France, Lithuania, Malta, Poland, Spain, Sweden and the United Kingdom. Cyprus is the onlyMember State that has ratified it.The Network notes that 4 <strong>of</strong> the Member States which are not bound by the Revised EuropeanSocial Charter have not ratified the Additional Protocol to the European Social Charter(1988), and thus are not bound by its Article 1, which guarantees the right to equalopportunities and equal treatment in matters <strong>of</strong> employment and occupation withoutdiscrimination based on sex. These States are the United Kingdom, Hungary, Malta, Poland,Germany, Austria, Luxembourg, and Latvia, although the 4 latter States have signed thisinstrument. With regard to Article 8 <strong>of</strong> the Revised European Social Charter (1996), it notesthat: Cyprus does not consider itself bound by its paragraphs 4 and 5; Finland does notconsider itself bound by its paragraphs 1 and 3; Ireland does not consider itself bound by itsCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200369paragraph 3; and Sweden does not consider itself bound by its paragraphs 2, 4 and 5. All theStates that are parties to the Revised European Social Charter have agreed to be bound byArticle 20 <strong>of</strong> this instrument. With regard to Article 8 <strong>of</strong> the European Social Charter (1961),Denmark does not consider itself bound by its paragraphs 2, 3 and 4; Germany does notconsider itself bound by paragraphs 2 and 4; and the United Kingdom does not consider itselfbound by paragraphs 2, 3 and 4.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 23 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provisions <strong>of</strong>the European Social Charter or the Revised European Social Charter or, if they haveconsidered such ratification but rejected it, to explain their reasons for doing so and examinewhether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In a large number <strong>of</strong> Member States, the remuneration gap between men and womenremains important, even when the factors not directly related to gender (posts held,age, experience, full-time/part-time, etc.) are taken into account.In Belgium, where the dismissal appears to be motivated by reprisals following acomplaint against an alleged instance <strong>of</strong> discrimination, the reintegration in his/herposition <strong>of</strong> the employee is left to the discretion <strong>of</strong> the employer. This situation isincompatible with Articles 4(3) and 8(2) <strong>of</strong> the European Social Charter, as theEuropean Committee on Social Rights found on its last two control cycles(Conclusions In Estonia, the proposed Gender Equality Act still has not been adopted, although theinstruments the Act seeks to implement are part <strong>of</strong> the acquis communautaire.In the Netherlands, 15% <strong>of</strong> the collective labor agreements do not apply to employeesworking less than 12 hours a week, which has a disproportionate impact upon awomen, who are an overwhelming majority in that category <strong>of</strong> workers.In Ireland, the scarcity and cost <strong>of</strong> childcare is one <strong>of</strong> the most important barriers towomen progressing in education or employment: according to the draft response <strong>of</strong> theWomen’s Human Rights Project to the Irish Government’s submission to theCommittee on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women, whichthe Network was able to consult, Irish parents pay on average 20% <strong>of</strong> their earnings onchildcare, compared to 8% for their EU counterparts; a similar difficulty exists inAustria. Even apart from the impact on the pr<strong>of</strong>essionnal integration and promotion <strong>of</strong>women, such a situation is problematic in its own right, under Article 18(3) <strong>of</strong> theConvention on the Rights <strong>of</strong> the Child.In Ireland, just 15 <strong>of</strong> almost 4,000 new apprentices trained this year by the State'straining and employment agency, FÁS, were female. The agency reported 3,943 newapprentices up to the end <strong>of</strong> August 2003, and the 15 females represent just 0.38 percent <strong>of</strong> that total. There are currently only117 women among the 25,615 ‘live’apprenticeships, where recruits could be in any <strong>of</strong> the four years <strong>of</strong> their training.CFR-CDF.Conclusions.2003.en

70EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSIn the Slovak Republic, substantial progress still has to be made as regards therepresentation <strong>of</strong> women in the politics and in leading positions, and there remains alarge disparity in wages between men and women.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has noted with interest that in Spain, Law n°30/2003 <strong>of</strong> 31 October 2003provides for a systematic evaluation <strong>of</strong> impact on gender <strong>of</strong> the normative provisions adoptedby the government ; such a systmatic impact assessment, however, will only be fully effectivewhen statistical data will be more systematically gender-specific. The Network also welcomesthe fact that in Italy, Article 51 <strong>of</strong> the Constitution has been amended, introducing aconstitutional basis for affirmative actions that foster the representation <strong>of</strong> women in theelective bodies. In Poland, the Council <strong>of</strong> Ministers adopted on 19 August 2003 a NationalAction Programme for women – the 2 nd implementation stage, covering the years 2003-2005.Finally, the Network notes with satisfaction that in Greece, two legislative amendmentsadopted in 2003 have abrogated the limitative quotas previously restricting the admission <strong>of</strong>women in police and fire-fighters’ schools or in the body <strong>of</strong> border-guards. Moreover, theCouncl <strong>of</strong> State has concluded to the constitutionality <strong>of</strong> positive action measures in favor <strong>of</strong>women, also in the domain <strong>of</strong> political rights, by application <strong>of</strong> Article 116(2) <strong>of</strong> theConstitution, as amended in 2001, a provision which is directly inspired by Article 23(2) <strong>of</strong>the Charter <strong>of</strong> Fundamental Rights.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the proposal <strong>of</strong> the European Commission, based on Article 13EC, to extend the requirement <strong>of</strong> equal treatment between women and men in the access to,and the provision <strong>of</strong>, goods and services (COM(2003)657 final). It would however encouragean explicit acknowledgment in the directive that statistical data may lead to a suspicion <strong>of</strong>indirect discrimination against women or men, and impose <strong>of</strong> the author <strong>of</strong> the measure,criterion or practice to justify that the measure, criterion or practice has been adopted inpursuance <strong>of</strong> a legitimate objective and by reasonable and necessary means.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights takes note <strong>of</strong> the judgmentdelivered on 9 September 2003 by the European Court <strong>of</strong> Justice in the case <strong>of</strong> Rinke (C-25/02), and invites the Commission to consider defining the limit imposed on the MemberStates by the principle <strong>of</strong> equal treatment between men and women in the implementation <strong>of</strong>Article 5 <strong>of</strong> Council Directive 86/457/EEC <strong>of</strong> 15 September 1986 on specific training ingeneral medical practice (OJ 1986 L 267, p. 26), now incorporated as Article 34 <strong>of</strong> CouncilDirective 93/16/EEC <strong>of</strong> 5 April 1993 to facilitate the free movement <strong>of</strong> doctors and themutual recognition <strong>of</strong> their diplomas, certificates and other evidence <strong>of</strong> formal qualifications(OJ 1993 L 165, p. 1), which states that training in general medical practice, although it maybe organized on a part-time basis, must at least comprise a period during which it is full-time.Article 24. The rights <strong>of</strong> the childState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that Article 24(1) <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 24(1) <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966) and by Articles 3(2) and 12 <strong>of</strong> theConvention on the Rights <strong>of</strong> the Child (1989). It notes that Article 24(2) <strong>of</strong> the Charter mustbe read in accordance to Article 3(1) <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child and thatCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200371Article 24(3) <strong>of</strong> the Charter must be read in accordance to Article 9 <strong>of</strong> the Convention on theRights <strong>of</strong> the Child (1989) and to the right to respect for family life recognized in Article 8 <strong>of</strong>European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950).All the Member States <strong>of</strong> the European Union are parties to these instruments.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:The Network has serious concerns about the low age <strong>of</strong> criminal responsibility in theUnited Kingdom, as well as the use made <strong>of</strong> prison for children there and theadequacy <strong>of</strong> the educational provision for those held in them.The Network is concerned about the continuing lack <strong>of</strong> special provisions governingthe treatment <strong>of</strong> unaccompanied minor immigrants and refugees in Austria.Finally, the Network regrets that although Malta has signed the Convention on theRights <strong>of</strong> the Child, the Children’s Act which should implement this Convention stillcould not be approved and enter into force.Positive aspects and good practicesThe Network welcomes the establishment in the United Kingdom <strong>of</strong> the post <strong>of</strong>Commissioner for Children and Young People, with the general function <strong>of</strong> promoting andsafeguarding the rights <strong>of</strong> children and young people in Scotland. It also welcomes theadoption and implementation by Austria <strong>of</strong> the national plan <strong>of</strong> action implementing the UNYoung Rights Action Plan to foster the rights <strong>of</strong> children and adolescents as laid down in theConvention on the Rights <strong>of</strong> the Child. The Network also notes that in Greece, the Law n°3189/2003 has brought imortant improvements to the criminal law relating to minors, andmoreover the Law n° 3094/2003 has entrusted the Office <strong>of</strong> the Ombudsman with the mission<strong>of</strong> protection and promoting the rights <strong>of</strong> the child, which led to the creation <strong>of</strong> new section inthe Office. Finally, it notes with satisfaction that, following the recommendations made by theCommittee <strong>of</strong> the Rights <strong>of</strong> the Child at its 852 nd and 853 rd session ((CRC/C/83/Add.4), heldon January 2003 and at its 862 nd session held on 31 January 2003 (CRC/C/83/Add.4), theCzech Republic has adopted the Law on Juvenile Judiciary (Zák. . 218/ 2003Sb.o soudnictví ve vcech mládeže (Law No. 218/ 2003 Coll. <strong>of</strong> Law on Juvenile Judiciary)),creating a specialized juvenile judiciary which should give priority to prevention andrehabilitation.Article 25. The rights <strong>of</strong> the elderlyState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 14 <strong>of</strong> theEuropean Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950)and by Article 23 <strong>of</strong> the Revised European Social Charter, or by Article 4 <strong>of</strong> the AdditionalProtocol to the European Social Charter <strong>of</strong> 1961 (1988), which has the same content.CFR-CDF.Conclusions.2003.en

72EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that bothArticle 23 <strong>of</strong> the Revised European Social Charter and Article 4 <strong>of</strong> the Additional Protocol tothe European Social Charter <strong>of</strong> 1961 (1988) regarding the right <strong>of</strong> elderly persons to socialprotection, have the same content. It notes that 5 Member States have not signed the RevisedEuropean Social Charter: Germany, Hungary, Latvia, Malta and Poland. 10 Member Stateshave signed the Revised European Social Charter but have not ratified it: Austria, Belgium,Czech Republic, Denmark, Greece, Luxembourg, the Netherlands, Slovak Republic, Spainand the United Kingdom. Moreover none <strong>of</strong> the 5 Member States that have not signed theRevised European Social Charter has ratified the additional Protocol <strong>of</strong> 1988 to the 1961European Social Charter, although this Protocol has been signed by Germany and Latvia. 7 <strong>of</strong>the 10 States which have signed the Revised European Social Charter but have not ratified it,are parties to the Additional Protocol <strong>of</strong> 1988 : the remaining 3 States are the UnitedKingdom, which has not signed the Additional Protocol, and Austria and Luxemburg, whichhave not ratified it.However, even among the States parties to the additional Protocol <strong>of</strong> 1988, Belgium and theNetherlands have declared not to be bound by Article 4 <strong>of</strong> the additional Protocol. TheNetwork also notes that, among the States parties to the Revised European Social Charter,Cyprus, Estonia and Lithuania have declared not to be bound by Article 23 <strong>of</strong> that instrument.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 25 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theEuropean Social Charter and the Revised European Social Charter or, if they have consideredsuch ratifications and acceptations but rejected them, to explain their reasons for doing so andexamine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights considers that inPoland, supplementary assistance should be given to relatives who, although they are notself-reliant, care for the elderly at home; such assistance could include medical and legalassistance and equipment where required. It also finds that in Portugal, the level <strong>of</strong> somepensions is extremely low, with a result that many elderly are living in extreme poverty,especially in the interior <strong>of</strong> the country. Moreover, there still exist illegal foster homes for theelderly, deprived <strong>of</strong> basic hygiene and living conditions. The Network considers that it iscrucial to keep on inspecting these situations and to better regulate their activities.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the publication in Sweden, in October 2003, <strong>of</strong> the report bythe special investigative Committee (SOU 2003:91, Äldrepolitik för framtiden, 100 steg tilltrygghet och utveckling med en åldrande befolkning) which contains a number <strong>of</strong> constructiveproposals on how to increase the chances <strong>of</strong> elderly people to live a life in dignity in Sweden.The Member States <strong>of</strong> the Union should be encouraged to make such investigative studies at atime where the right <strong>of</strong> the elderly to choose their life-style freely and to lead <strong>independent</strong>lives in their familiar surroundings for as long as they wish and are able has gained increasingimportance and widespread recognition.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200373Article 26. Integration <strong>of</strong> persons with disabilitiesState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Articles 2 and 23<strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989), by Articles 2 and 26 <strong>of</strong> the InternationalCovenant on Civil and Political Rights (1966), by Article 2 <strong>of</strong> the International Covenant onEconomic, Social and Cultural Rights (1966), by Article 1 <strong>of</strong> ILO-Convention (n°111)concerning Discrimination in Respect <strong>of</strong> Employment and Occupation (1958), by Articles 3, 8and 14 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights and FundamentalFreedoms (1950), by the Protocol n° 12 to the Convention for the Protection <strong>of</strong> Human Rightsand Fundamental Freedoms (2000 - not in force) and by Article 15 <strong>of</strong> the Revised EuropeanSocial Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that thatEstonia has not ratified ILO-Convention (n°111) concerning Discrimination in Respect <strong>of</strong>Employment and Occupation. It notes that 8 Member States still have to be sign the Protocoln° 12 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms:Denmark, France, Lithuania, Malta, Poland, Spain, Sweden and the United Kingdom. It notesthat Cyprus is the only State that has ratified it.It notes that 5 Member States have not signed the Revised European Social Charter :Germany, Hungary, Latvia, Malta and Poland. 10 Member States have signed the RevisedEuropean Social Charter but have not ratified it: Austria, Belgium, Czech Republic, Denmark,Greece, Luxembourg, the Netherlands, Slovak Republic, Spain and the United Kingdom.There are no specific declarations on Article 15 <strong>of</strong> the Revised European Social Charterregarding the right <strong>of</strong> persons with disabilities to independence, social integration andparticipation in the life <strong>of</strong> the community.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 26 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theEuropean Social Charter or the Revised European Social Charter or, if they have consideredsuch ratification but rejected it, to explain their reasons for doing so and examine whetherthese explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In Cyprus, the Committee on the Rights <strong>of</strong> the Child is concerned by the broad scope<strong>of</strong> special schools which are intended for children with physical, mental or emotionalneeds, which does not go in the direction <strong>of</strong> their integration into mainstream schools.In Ireland, the Irish Human Rights Commission and the National Disability Authorityhave raised concerns about certain aspects <strong>of</strong> the Education for Persons withDisabilities Bill published on 16 July 2003, which purpose is to make detailedprovisions through which the education <strong>of</strong> children who have special educationalneeds because <strong>of</strong> disabilities can be guaranteed as a right enforceable in law.CFR-CDF.Conclusions.2003.en

74EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSIn Latvia, more efforts need to be done to improve the access to education for childrenwith disabilities, their integration in mainstream schools, their access to highereducation and the quality <strong>of</strong> the education provided when education is made available :more financial resources are required, to ensure that teachers and schools staff receivethe appropriate training and that public buildings are made accessible to students withdisabilities.In Sweden, although the right to education is granted to children with special needssuch as children with functional impairment, the right to choose schools for thesechildren is still unsufficiently guaranteed, as not all institutions are accessible tochildren with disabilities.In Poland, 16,1 % <strong>of</strong> persons with disabilities between 15 and 64 years <strong>of</strong> age wereemployed, in comparison to 51,1 % <strong>of</strong> persons with no disability. This gap should benarrowed by the reform <strong>of</strong> the system under which financial assistance is provided toemployers recruiting disabled persons in their workforce.In Portugal, many architectonical barriers remain, including for acceding publicbuildings. Construction products should be monitored closely, so that they canguarantee the autonomy <strong>of</strong> disabled people. Modern assistive technology should bemade more affordable. Moreover, employers who hire disabled people should be aidedby the State, without too many – sometimes unsurmountable – bureaucratic hurdles.Positive aspects and good practicesThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights is encouraged by the findingthe the European Year <strong>of</strong> Persons with Disabilities 2003 has led in the Member States to widesocietal debates on the best means to achieve the social and pr<strong>of</strong>essional integration <strong>of</strong>persons with disabilities. Upon examination <strong>of</strong> the reports submitted by its members on thesituation <strong>of</strong> fundamental rights in the 25 Member States <strong>of</strong> the Union, it has identified thefollowing positive development and innovative practices :In Belgium, the decree on the recognition <strong>of</strong> signs language adopted on 22 October2003 by the French-speaking Community (décret relatif à la reconnaissance de lalangue des signes adopté le 22 octobre 2003 par la Communauté française (M.B., 25November 2003)) recognizes the signs language <strong>of</strong> French-speaking Belgium, as thevisuo-gestual language specific to the community <strong>of</strong> deafs <strong>of</strong> the Commuautéfrançaise. The Network welcomes this initiative, and it expresses the hope that theimplementation measures required to facilitate the use <strong>of</strong> signs language in thedifferent domains belonging to the competences <strong>of</strong> the Communauté française will beadopted within a reasonable time. In Luxemburg, the Law <strong>of</strong> 12 September 2003 on persons with disabilities (Mém. A,2003, 2938) reinforces the rights <strong>of</strong> disabled persons by providing for supplementarysocial rights and by encouraging their integration on the ordinary labour market.In Portugal, the new Act on Television (n° 32/2003, 22 August 2003) imposesspecific obligations on public television to ensure that programmes can be followed bypersons with hearing impairments; the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes this development, and it also welcomes that, in order t<strong>of</strong>acilitate access to justice by persons with a hearing impairment, a protocol has beensigned between the Ministry <strong>of</strong> Justice and the Portugese Federation <strong>of</strong> Persons with ahearing disability providing for the presence <strong>of</strong> an interpreter <strong>of</strong> gesture language atany judicial act, in which a person with such a disability takes part.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200375In Portugal, a growing number <strong>of</strong> Universities seek to facilitate access to highereducation <strong>of</strong> students with a disability, by the creation <strong>of</strong> a specialized service withinthe University structure ensuring that the special needs are known, understood, andmet.According to the National Plan for Disability Policy adopted in Sweden (prop.1999/2000:79, Nationell handlingsplan för handikappolitiken) a number <strong>of</strong> measuresshould be taken in that State before the end <strong>of</strong> 2005 at the latest with the aim that thedisability perspective shall permeate all sectors <strong>of</strong> society with the requirement <strong>of</strong>accessibility to persons with disabilities, and public transportation services should bemade fully accessible to persons with functional impairment by 2010.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, and recalling in this regard its Report on thesituation <strong>of</strong> Fundamental Rights in the European Union and its Member States in 2002, theEU Network <strong>of</strong> Independent Experts on Fundamental Rights would welcome a proposal for adirective based on Article 13 EC specifically aimed at protecting persons with disabilitiesfrom discrimination, beyond the areas <strong>of</strong> employment and occupation which are alreadycovered by Directive 2000/78/EC <strong>of</strong> 27 November 2000 establishing a general framework forequal treatment in employment and occupation. It notes the importance in this respect <strong>of</strong>ensuring an adequate participation <strong>of</strong> persons with disabilities in the preparation <strong>of</strong> such aninstrument, in accordance with Article 15(3) <strong>of</strong> the Revised European Social Charter. It alsonotes that, in accordance with the understanding developed by the European Committee onSocial Rights <strong>of</strong> Article 15(1) <strong>of</strong> the Revised European Social Charter which obliges theparties to that instrument to take measures to provide persons with disabilities with educationin the framework <strong>of</strong> general schemes wherever possible, whilst the directive should encouragethe inclusion <strong>of</strong> children with disabilities in mainstream education, however, the normalcurriculum should be adjusted to take account <strong>of</strong> disability; individualized educational plansshould be crafted for students with disabilities; resources should follow the child, by provision<strong>of</strong> support staff and other technical assistance; testing or examining modalities should beadjusted to take into account the disability, without this being revealed to third parties; thequalifications recognized should be the same for all children and rated the same after the childleaves the educational system. The EU Network <strong>of</strong> Independent Experts on FundamentalRights also considers that it follows from the requirement <strong>of</strong> non-discrimination on thegrounds <strong>of</strong> disability in education that where special education is provided where this cannotbe avoided, it should lead to qualifications which are recognized and may give access tovocational training or employment on the open labour market.CHAPTER IV : SOLIDARITYArticle 27. Worker’s right to information and consultation within the undertakingState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Articles 21 and 29<strong>of</strong> the Revised European Social Charter and by Article 2 <strong>of</strong> the Additional Protocol to theEuropean Social Charter <strong>of</strong> 1961 (1988).Austria, Germany, Hungary, Latvia, Luxemburg, Malta, Poland, and the United Kingdom arebound neither by Article 21 <strong>of</strong> the Revised European Social Charter, nor by Article 2(1) <strong>of</strong> theAdditional Protocol to the European Social Charter <strong>of</strong> 1961 (1988), which have the samecontent regarding workers’ right to information and consultation. Although they are parties toCFR-CDF.Conclusions.2003.en

76EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSthe Revised European Social Charter, Cyprus and Ireland have declared not to be bound byArticle 21 <strong>of</strong> this instrument. The Network also notes that Cyprus does not consider itselfbound by Article 29 <strong>of</strong> the Revised European Social Charter regarding the right toinformation and consultation in collective redundancy procedures; Denmark made areservation with regard to this provision.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 27 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theEuropean Social Charter or the Revised European Social Charter or, if they have consideredsuch ratification but rejected it, to explain their reasons for doing so and examine whetherthese explanations are still valid.Positive aspects and good practicesThe Network welcomes the adoption by Greece <strong>of</strong> Law 3144/2003 (µ 3144/2003,« ») [Law 3144/2003, « Social dialogue for the promotion <strong>of</strong> employment andsocial protection and other provisions »] which sets up a National Commission forEmployment, aiming both to promote social dialogue for the development <strong>of</strong> employmentpolicies and to deliver opinions on the establishment, the monitoring <strong>of</strong> the follow-up and theassessment <strong>of</strong> the National Action Plan for Employment. It also sets up a NationalCommission for Social Protection, which is in charge <strong>of</strong> promoting social dialogue in order t<strong>of</strong>ight poverty and social exclusion. It also aims to develop a <strong>network</strong> for social protection andsocial integration and to give opinions on the establishment, the monitoring <strong>of</strong> the follow-upand the assessment <strong>of</strong> the National Action Plan for Social integration.Article 28. Right <strong>of</strong> collective bargaining and actionState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 8 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), by the ILOConvention (n° 98) concerning the Application <strong>of</strong> the Principles <strong>of</strong> the Right to Organise andto Bargain Collectively (1949), by the ILO Convention (n° 135) concerning Protection andFacilities to be Afforded to Workers’ Representatives in the Undertaking (1971), by the ILOConvention (n° 154) concerning the Promotion <strong>of</strong> Collective Bargaining (1981), by Article 11<strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms(1950), by Article 6 <strong>of</strong> the European Social Charter and by Article 6 <strong>of</strong> the Revised EuropeanSocial Charter.The Network notes in this regard that all Member States have ratified ILO Convention n° 98.It notes that Belgium, Slovak Republic and Ireland still have to be sign ILO Convention n°135. 15 Member States still have to be sign ILO Convention n° 154: Austria, Czech Republic,Denmark, Estonia, Germany, France, Ireland, Italy, Luxembourg, Malta, Poland, Portugal,Slovak Republic, Slovenia and the United Kingdom.Article 6 <strong>of</strong> the Revised European Social Charter and Article 6 <strong>of</strong> the European Social Charterregarding the right to bargain collectively, have the same content. The Network notes thedeclaration <strong>of</strong> Portugal with regard to Article 6 <strong>of</strong> the Revised European Social Charter. Withregard to Article 6 <strong>of</strong> the European Social Charter <strong>of</strong> 1961, it notes that the following States –which have either not ratified the Revised European Social Charter or not accepted its Article6 in full – do not consider themselves bound by its paragraph 4: Austria, Luxembourg, theCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200377Netherlands and Poland. Greece does not consider itself bound by the provision as a whole. Italso notes the declaration <strong>of</strong> Spain with regard to this provision.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 28 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theRevised European Social Charter or, if they have considered such ratification but rejected it,to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights identified a number<strong>of</strong> concerns with respect to the right <strong>of</strong> workers and employers, or their respectiveorganisations, to take collective action to defend their interests, including strike action, whichis recognized by Article 28 <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights :In Austria, which did not accept to be bound by Article 6(4) <strong>of</strong> the European SocialCharter, there is moreover no explicit provision in the Austrian domestic legal orderconcerning the right to strike and to take collective actions. A legislative initiativetherefore would be highly desirable (Streikgesetz) to clarify the many unsolved issuesrather than leaving them for the courts to decide on a case-by-case basis.In an Individual Observation concerning the application by the United Kingdom <strong>of</strong>ILO Convention (No 87) on Freedom <strong>of</strong> Association and Protection <strong>of</strong> the Right toOrganise released in 2003, the Committee <strong>of</strong> Experts on the Application <strong>of</strong>Conventions and Recommendations remarked about sections 64-67 <strong>of</strong> the Trade Unionand Labour Relations (Consolidation) Act 1992, which prevented trade unions fromdiscipline their members who refused to participate in lawful strikes and otherindustrial action or who sought to persuade fellow members to refuse to participate insuch action, that unions should have the right to draw up their rules withoutinterference from public authorities and so to determine whether or not it should bepossible to discipline members who refuse to comply with democratic decisions to takelawful industrial action. As sections 223 and 224 <strong>of</strong> the same Act have resulted in anabsence <strong>of</strong> immunities in respect <strong>of</strong> civil liability when undertaking sympathy strikes,the Committee recalled its previous observation that workers should be able to takeindustrial action in relation to matters which affect them even though, in certain cases,the direct employer may not be party to the dispute and that they should be able toparticipate in sympathy strikes provided the initial strike they are supporting is itselflawful. The importance <strong>of</strong> this freedom had previously been underlined on account <strong>of</strong>employers commonly avoiding the adverse effects <strong>of</strong> disputes by transferring work toassociated employers, restructuring their businesses in order to make primary actionsecondary.In the Netherlands, the provisions <strong>of</strong> the Working Hours Act on the so-called“flexibility regulations” do not contain sufficient guarantees for collective bargainingin order to protect workers and are thus not in conformity with Article 2(1) <strong>of</strong> theEuropean Social Charter, according to the reading <strong>of</strong> the European Committee onSocial Rights.With respect to Poland, the EU Network <strong>of</strong> Independent Experts on FundamentalRights notes that the Report <strong>of</strong> the Commissioner for Human Rights <strong>of</strong> the Council <strong>of</strong>Europe on his visit to Poland 18-22 November 2002 for the Committee <strong>of</strong> MinistersCFR-CDF.Conclusions.2003.en

78EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSand the Parliamentary Assembly (Strasbourg 19 March 2003, CommDH(2003)4))emphasises the information he received from the representatives <strong>of</strong> trade unions on thelimitation or blocking <strong>of</strong> the activities <strong>of</strong> trade unions in the private sector, e.g. insupermarket chains.Regarding the Slovak Republic, the legislative measures in place concerning the rightto strike may be too restrictive. The Network shares in that respect the views expressedby the Committee on Economic, Social and Cultural Rights in its conclusions(E/C.12/1/Add.81., point 14.), where it recommends the Slovak Republic to revise itslegislation on the right to strike, in line with Article 8 <strong>of</strong> the International Covenant onEconomic, Social and Cultural Rights (1966) and the relevant Conventions <strong>of</strong> theInternational Labour Organization (E/C.12/1/Add.81., point 27). The Network notesthat the same concerns have been expressed by the European Committee <strong>of</strong> SocialRights (Conclusions XI-2 [2003]), which concluded that the situation in the SlovakRepublic is not in conformity with Article 6(4) <strong>of</strong> the European Social Charterbecause strikes are not permitted if they are not related to the negotiation <strong>of</strong> acollective agreement or the amendment <strong>of</strong> an existing agreement, provided that thislatter possibility is explicitly stated in the agreement itself; and because groups <strong>of</strong>workers have no right to call a strike.In Lithuania, although the new Labour Code (Darbo kodeksas), adopted on 4 June2002, entered to force on 1 January 2003, replacing the 1992 Law on the Settlement <strong>of</strong>Collective Disputes, the definition <strong>of</strong> essential services remains unchanged under thenew legislation. As a result, a general prohibition <strong>of</strong> strikes is imposed on the system<strong>of</strong> internal affairs, the defence and national security sectors, the electricity generating,heating and gas supply companies and in emergency medical services. As remarked bythe Committee <strong>of</strong> Experts on the Application <strong>of</strong> Conventions and Recommendations(CEACR) in its individual observation concerning International Labour OrganisationConvention No.87 on freedom <strong>of</strong> association and protection <strong>of</strong> the right to organise,published in 2003, this imposed a far too broad restriction on the right to strike : asystem <strong>of</strong> minimum service in certain cases is more appropriate than an outright banon strikes, which should be limited to essential services in the strict sense <strong>of</strong> the term,namely those where the life, personal safety and health <strong>of</strong> the whole or part <strong>of</strong> thepopulation may be endangered ; moreover, an <strong>independent</strong> and impartial body shouldhave the competence to make a final ruling on the definition <strong>of</strong> a minimum service,rather than this definition being left to the unilateral determination by the Government.The European Committee <strong>of</strong> Social Rights noted already in 2002 that the situation inBelgium was incompatible with Article 6(4) <strong>of</strong> the European Social Charter(Conclusions XVI – I, (vol.1)) because on the one hand, penalty payments are imposedagainst strike actions including in cases <strong>of</strong> peaceful strike pickets and on the otherhand, when the judge considers that the harmful effects <strong>of</strong> a strike are disproportionateor that the strike could be organised at a less damaging time, judicial decisions forbidthe strike itself considering that it constitutes an abuse <strong>of</strong> rights. This situation remainstopical. Similarly in Greece the Network is concerned by the fact that certain strikeshave been considered to be abusive and were therefore forbidden although theseprohibitions have not always been respected. The Network notes that the Frenchcourts consider – on the basis <strong>of</strong> the constitutional value <strong>of</strong> the right to strike – that thepowers granted to the judge where imminent damages are feared following theexercise <strong>of</strong> the right to strike do not include the power to impose the requisition <strong>of</strong>employees on strike (Cass. soc, n°505 FS-P+B+R+I, 25 février 2003, Syndicat CFDTsanté sociaux de la Haute-Garonne c. Association MAPAD de la Cépière).CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200379In a number <strong>of</strong> Member States, limitations are imposed on the right to strike as a result<strong>of</strong> the need for endorsement <strong>of</strong> the strike by the unions : in Sweden, only trade unionshave the right to call a strike and in addition that the National Mediation Office mayimpose fines for failure to observe notice rules and postponement orders, the amount<strong>of</strong> which is excessive; in Cyprus, a decision to strike both in the private and publicsector has to be approved by the executive committee <strong>of</strong> the related trade union, as thiswould ensure that the results <strong>of</strong> the action produce effects that have the notion <strong>of</strong>collective benefits to the trade unions; in Denmark, a duty (a far-reaching “peaceobligation”) is imposed on the trade union which is party to a collective agreement,and <strong>of</strong>ten also its members (the individual workers), not to take industrial action(strike, lock-out, blockade, etc.), when a collective agreement is in force; in Ireland, aclause <strong>of</strong> absolute social peace has been included within the Social PartnershipAgreement 2003-2005 which precludes strikes or other forms <strong>of</strong> industrial action bytrade unions, employees or employers in respect <strong>of</strong> any matters covered by theAgreement. Such limitations to the right to strike could be in violation <strong>of</strong> Article 6(4)<strong>of</strong> the European Social Charter, which was a source <strong>of</strong> inspiration <strong>of</strong> Article 28 <strong>of</strong> theEU Charter <strong>of</strong> Fundamental Rights (see Concl. II, p. 27, and Concl. XIV-1, p. 319(Germany); Concl. XV-1, p. 355 (Iceland)). The EU Network <strong>of</strong> Independent Expertson Fundamental Rights notes with interest, in this respect, that the Constitutional Courtin Portugal concluded in its Decision 306/2003 that Article 606 <strong>of</strong> the original version<strong>of</strong> the new Labour Code was unconstitutional, as it was in violation <strong>of</strong> the right tostrike guaranteed in Article 57 <strong>of</strong> the Constitution. Indeed, Article 606 <strong>of</strong> the originalversion <strong>of</strong> the new Labour Code foresaw that collective conventions could establish,for the period <strong>of</strong> their validity, limitations on the right <strong>of</strong> Unions to declare strike –which could go as far as renouncing to it – for reasons relating to the content <strong>of</strong> thecollective convention. In that case, the majority considered that although it is up to thetrade unions to declare strike, the fundamental right to strike belongs to the individualworker and the representation <strong>of</strong> the latter at the table <strong>of</strong> negotiations <strong>of</strong> a collectiveconvention is not a sufficient credential to habilitate the former waiving that right,even if its abdication is only temporary (for the time the convention is in force) andrelative (limited to reasons relating to the content <strong>of</strong> the agreed convention).Article 29. Right <strong>of</strong> access to placement servicesState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by both ILO-Convention (n° 168) concerning Employment Promotion and Protection againstUnemployment (1988), by Article 1 (3) <strong>of</strong> the European Social Charter (1961) and by Article1(3) <strong>of</strong> the Revised European Social Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that ILOConvention n°168 has been ratified by only 2 Member States namely Finland and Sweden. Inthe framework <strong>of</strong> the European Social Charter, all the member States are bound by eitherArticle 1 (3) <strong>of</strong> the European Social Charter (1961) or by Article 1(3) <strong>of</strong> the RevisedEuropean Social Charter regarding the undertaking to establish or maintain free employmentservices for all workers.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 29 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provisions <strong>of</strong>the European Social Charter or the Revised European Social Charter or, if they haveCFR-CDF.Conclusions.2003.en

80EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSconsidered such ratification but rejected it, to explain their reasons for doing so and examinewhether these explanations are still valid.Areas <strong>of</strong> concernNo conclusions have been adopted under this provision.Article 30. Protection in the event <strong>of</strong> unjustified dismissalState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Articles 24 and 29<strong>of</strong> the Revised European Social Charter.It notes in this regard that 5 Member States have not signed the Revised European SocialCharter: Germany, Hungary, Latvia, Malta and Poland. 10 Member States have signed theRevised European Social Charter but have not ratified it: Austria, Belgium, Czech Republic,Denmark, Greece, Luxembourg, the Netherlands, Slovak Republic, Spain and the UnitedKingdom. The Network also notes that Cyprus does not consider itself bound by Article 29 <strong>of</strong>the Revised European Social Charter regarding workers’ right to information and consultationin collective redundancy procedures; Denmark made a reservation with regard to thisprovision. Denmark and Sweden do not consider themselves bound by Article 24 regardingthe right to protection in cases <strong>of</strong> termination <strong>of</strong> employment <strong>of</strong> the instrument.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 30 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theRevised European Social Charter, or, if they have considered such ratification but rejected it,to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the Network identified the following concerns with respect to the protection <strong>of</strong> theemployee in the event <strong>of</strong> unjustified dismissal :The situation in Belgium is not in conformity with Article 4(3) <strong>of</strong> the European SocialCharter, which requires that in cases <strong>of</strong> dismissal by reprisals, the form <strong>of</strong> thereparation should in principle be the reintegration <strong>of</strong> the employee in his/her previousfunctions or similar functions, unless the reintegration appears impossible or is notwished by the concerned employee, in which damages should compensate for theabsence <strong>of</strong> reintegration, at a level sufficiently dissuasive and affording full reparation(see Conclusions VII, p. 27 and VIII, p. 66, Denmark, Conclusions XIII-5, pp. 270-271, general observation). The Network regrets in this regard that Article 21 <strong>of</strong> theLaw <strong>of</strong> 25 February 2003 combating discrimination and modifying the Law <strong>of</strong> 15February 1993 creating the Centre for Equal Opportunities and Fight against Racism(M. B., 17 March 2003), as well as the Law <strong>of</strong> 7 March 1999 on equal treatmentbetween men and women in workig conditions, access to a self-employed activity andcomplementary social security regimes, do not provide for a right <strong>of</strong> the worker to bereintegrated after having been dismissed because <strong>of</strong> the complaint or the legal actionCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200381lodged after an allegation <strong>of</strong> discrimination, but instead subordinates the possibility <strong>of</strong>reintegration to the acceptation by the employer who, if he refuses, may indemnify theemployee.In Latvia, recent case-law has highlighted the legal uncertainty which affects the rulesapplicable to the dismissal <strong>of</strong> civil servants : the national courts apply either theprovisions <strong>of</strong> the Labour Law, or the provisions determining the procedure to befollowed for the challenge <strong>of</strong> administrative acts. The rules applicable to suchsituations should be clarified. Moreover, the Network emphasizes that in thedetermination <strong>of</strong> disputes relating to the dismissal <strong>of</strong> civil servants, the independency<strong>of</strong> the competent courts should be fully preserved and respected by the Executive.The Network also encourages Spain to follow upon the finding <strong>of</strong> the EuropeanCommittee <strong>of</strong> Social Rights (Concl. XVI-2 (2003), vol. 2) which considered that thesituation in Spain was not in conformity with Article 4(4) <strong>of</strong> the European SocialCharter (right <strong>of</strong> all workers to a reasonable period <strong>of</strong> notice for termination <strong>of</strong>employment), as the workers in a fixed term contract <strong>of</strong> employment <strong>of</strong> more than oneyear were to be notified <strong>of</strong> the termination <strong>of</strong> their employment only fifteen days inadvance. With respect to the United Kingdom, the European Committee <strong>of</strong> SocialRights also concluded that this provision <strong>of</strong> the European Social Charter was notcomplied with, as the notice in the case <strong>of</strong> workers with less than three years’ servicecontinues to be too short (Concl. XVI-2, p. 16). The Network also encourages theSlovak Republic to remedy the situation found by the European Committee on SocialRights to be in violation with Article 8(2) <strong>of</strong> the European Social Charter (stating thatit will be unlawful for an employer to give a woman notice <strong>of</strong> dismissal during herabsence on maternity leave or to give her notice <strong>of</strong> dismissal at such a time that thenotice would expire during such absence), which is that the relocation <strong>of</strong> the employeror the transfer <strong>of</strong> all or part <strong>of</strong> his business activities is regarded as going out <strong>of</strong>business, thereby justifiying the dismissal <strong>of</strong> the employee during the absence onmaternity leave or at such time that the notice would expire during such absence.The Network is concerned that, in Denmark, the protection <strong>of</strong> employees againstunjustified dismissal is incomplete, as no protection will be granted to the employeewho is not encompassed by the Lovbekendtgorelse (2002:691) om forholdet mellemarbejdsgivere og funktionaerer (Consolidated Act (2002:691) on the Relationshipbetween Employers and White Collar Employees) or basic agreements.Article 31. Fair and just working conditionsState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 7 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), by ILO Convention(n° 105) concerning the Abolition <strong>of</strong> Forced Labour (1957), by Articles 2 and 3 <strong>of</strong> theEuropean Social Charter (1961) and by Articles 2, 3 and 26 <strong>of</strong> the Revised European SocialCharter.The Network notes in this regard that 5 Member States have not signed the Revised EuropeanSocial Charter : Germany, Hungary, Latvia, Malta and Poland. 10 Member States have signedthe Revised European Social Charter but have not ratified it: Austria, Belgium, CzechRepublic, Denmark, Greece, Luxembourg, the Netherlands, Slovak Republic, Spain and theUnited Kingdom. Nevertheless the 5 Member States that have not signed the RevisedEuropean Social Charter and the 10 Member States that have signed but not ratified thisCFR-CDF.Conclusions.2003.en

82EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSinstrument have signed and ratified the European Social Charter <strong>of</strong> 1961.With regard to Article 2 <strong>of</strong> the Revised European Social Charter regarding the right to justconditions <strong>of</strong> work, it notes that Cyprus does not consider itself bound by its paragraphs 3, 4and 6; Denmark made a reservation with regard to its paragraph 7; Sweden considers itselfbound only by its paragraphs 3, 5 and 6; Portugal made a declaration regarding its paragraph6 and Estonia does not consider itself bound by its paragraph 4. With regard to the Article 2<strong>of</strong> European Social Charter (1961) regarding the right to just conditions <strong>of</strong> work, the Networknotes that the following States do not consider themselves bound by this provision: Austria,Denmark (with regard to its paragraphs 1 and 4), Latvia, Malta (with regard to its paragraph4), Poland (with regard to its paragraph 2), Sweden (with regard to its paragraph 1, 2 and 4)and the United Kingdom (with regard to its paragraph 1).With regard to Article 3 <strong>of</strong> the Revised European Social Charter regarding the right to safeand healthy working conditions, it notes that Estonia, Sweden and Cyprus do not considerthemselves bound by its paragraph 4; Finland does not consider itself bound by its paragraphs2 and 3. With regard to the Article 3 <strong>of</strong> European Social Charter (1961) regarding the right tosafe and healthy working conditions, the Network notes that the following States do notconsider themselves bound by this provision: Austria, Finland (with regard to its paragraphs 1and 2) and Latvia. With regard to Article 26 <strong>of</strong> Revised European Social Charter regardingthe right to dignity at work, it notes that Estonia and Cyprus do not consider themselvesbound by this provision.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 31 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theEuropean Social Charter or the Revised European Social Charter or, if they have consideredsuch ratification but rejected it, to explain their reasons for doing so and examine whetherthese explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In the Netherlands, the absence <strong>of</strong> any provision for reduced working hours oradditional paid holidays in dangerous and unhealthy occupations led the EuropeanCommittee on Social Rights to conclude that the Netherlands was not in conformitywith Article 2(4) <strong>of</strong> the European Social Charter. The European Committee on SocialRights also concluded that the situation in Finland was not in conformity with thisprovision, as the workers exposed to radiation in the health sector are not entitled toreduced working hours or additional paid holidays (Concl. XIV-2). The situation inFinland was also considered not to be in conformity with Article 2(1) <strong>of</strong> the Charter, asFinnish law permits, in exceptional cases, daily rest periods to be lowered to seven orin some cases to five hours.The Network is concerned that in the United Kingdom, the health and safetyregulations may be underenforced because <strong>of</strong> the manifest insufficient number <strong>of</strong>inspections carried out in Northern Ireland, as was found by the European Committeeon Social Rights which therefore concluded that this situation was not in conformitywith Article 3(2) <strong>of</strong> the European Social Charter (Concl. XVI-2). In Spain, theNetwork identifies the main problem <strong>of</strong> health and safety regulations in employment asbeing their underinclusiveness, as the self-employed are unsufficiently protected byCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200383these regulations, which led the European Committee on Social Rights to conclude thatthis situation was not in conformity with Article 3(1) <strong>of</strong> the European Social Charter(Concl. XVI-2); moreover the continuous increase in industrial accidents are a source<strong>of</strong> concern.Positive aspects and good practicesUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the, the EU Network <strong>of</strong> Independent Experts onFundamental Rights has identified a limited number <strong>of</strong> good practices which all the MemberStates are encouraged to seek inspiration from in formulating a fundamental rights policy intheir jurisdiction :Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights notes that Directive 2003/88/EC <strong>of</strong> the European Parliament and <strong>of</strong> theCouncil <strong>of</strong> 4 November 2003 concerning certain aspects <strong>of</strong> the organisation <strong>of</strong> working timeseeks to codify a number <strong>of</strong> changes brought to Council Directive 93/104/EC <strong>of</strong> 23 November1993, concerning certain aspects <strong>of</strong> the organisation <strong>of</strong> working time. Considering the number<strong>of</strong> derogations which the directive authorizes, the EU Network <strong>of</strong> Independent Experts onFundamental Rights underlines that in implementing the directive, the Member States arebound to respect Article 31(2) <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights, and therefore alsoArticles 2(1)and(3) <strong>of</strong> the European Social Charter on which this provision <strong>of</strong> the EU Charter<strong>of</strong> Fundamental Rights in based. To that extent, any violation <strong>of</strong> the European Social Chartershould be considered a violation <strong>of</strong> European Community law itself, where it is committed bya State implementing EC Law.Article 32. Prohibition <strong>of</strong> child labor and protection <strong>of</strong> young people at workState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 10(3) <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), by Article 32 <strong>of</strong> theConvention on the Rights <strong>of</strong> the Child (1989), by ILO Convention (n° 138) concerningMinimum Age for Admission to Employment (1973), by ILO Convention (n° 182)concerning the prohibition and Immediate Action for the Elimination <strong>of</strong> the Worst Forms <strong>of</strong>Child Labour (1999), and by Article 7 <strong>of</strong> the European Social Charter (1961) and Article 7 <strong>of</strong>the Revised European Social Charter.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard that 3Member States still have to be sign ILO Convention n° 138: the Czech Republic, Estonia andLatvia. Moreover Latvia has not signed ILO Convention n° 182.The Network notes that Cyprus does not consider itself bound paragraphs 5, 7 and 9 <strong>of</strong> Article7 <strong>of</strong> the Revised European Social Charter regarding the right <strong>of</strong> children and young persons toprotection. Estonia and Sweden do not consider themselves bound by its paragraphs 5 and 6.Finland does not consider itself bound by its paragraphs 6 and 9. In the framework <strong>of</strong> theEuropean Social Charter, the following States have not accepted to be bound by Article 7 <strong>of</strong>the European Social Charter (1961) regarding the right <strong>of</strong> children and young persons toprotection: Austria (with regard to its paragraph 1), Denmark, Germany (with regard to itsparagraph 1), Hungary, Latvia, Poland (with regard to its paragraphs 1, 3 and 5) and theUnited Kingdom (with regard to its paragraphs 1, 4, 7 and 8).CFR-CDF.Conclusions.2003.en

84EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSTo ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 32 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theEuropean Social Charter or the Revised European Social Charter or, if they have consideredsuch ratification but rejected it, to explain their reasons for doing so and examine whetherthese explanations are still valid.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In Latvia, although Article 37 <strong>of</strong> the Labour Law prohibits employing children,defined as persons below the age <strong>of</strong> 15 or who continue primary education until theage <strong>of</strong> 18, in exceptional cases, with the permission <strong>of</strong> a parent or a legal guardian achild at the age <strong>of</strong> 13 can be employed in the free from school time in the activitieslisted by the Cabinet <strong>of</strong> Ministers, or in cultural, art, sport or advertisement activities,provided this in not contrary to the health, safety, or morals <strong>of</strong> the child. Although it isaware that Latvia has not accepted Article 7 <strong>of</strong> the Charter upon ratifying the EuropeanSocial Charter, the Network encourages Latvia to reexamine this situation, andparticularly its compatibility with the right to education <strong>of</strong> the child. The Networknotes that similar concerns have been expressed about Estonia by the United NationsCommittee on Economic, Social, and Cultural Rights, with regard to the fact that thelaw allows the work <strong>of</strong> children between 13 and 15 with the written consent <strong>of</strong> oneparent or a guardian and the labour inspector, and that the list <strong>of</strong> permissible worksincludes that <strong>of</strong> an industrial nature (E/C.12/1/Add.85, Concluding Observations <strong>of</strong> theCommittee on Economic, Social and Cultural Rights : Estonia, 19 December 2002, p.20).The Network is concerned by the fact that despite its recent revision in order tocomply with European Community law, the Labour Law in Hungary fails to defineminor tasks that can be and in practice are completed by children, but do not fall underthe notions <strong>of</strong> work or employment (see 2001. évi XVI. törvény [Act No. XVI <strong>of</strong>2001] amending 1992. évi XXII. törvény a Munka Törvénykönyvérl [Act No. XXII<strong>of</strong> 2002 on the Labor Code]).The Network also is concerned that in Malta, the Regulations on the Protection <strong>of</strong>Young Persons do not apply in respect <strong>of</strong> approved training schemes or apprenticeshipor educational, cultural or sports activities; not do they apply to hotels or cateringestablishments, provided the young worker is allowed not less than 12 consecutivehours’ rest within any period <strong>of</strong> 24 hours, and not less than 2 days’ rest each week,including a Sunday (CRC/C/3Add.56, para. 301). Moreover, in implementing theCouncil Directive 94/33/EC <strong>of</strong> 22 June 1994 on the Protection <strong>of</strong> Young People atWork Malta has chosen to exclude from “work” circumstances where children workwithin family businesses. This tolerance for child labour in family businesses and thetourism sector should be reexamined as a matter <strong>of</strong> urgency. The Labour Inspectorateshould moreover be granted the necessary resources to effectively monitor compliancewith the existing legislation.Finally, the situation <strong>of</strong> child labour in Portugal still constitutes a source <strong>of</strong> concern tothe Network, especially in the fields <strong>of</strong> entertainment and sports, but also in traditionalfields <strong>of</strong> child labour exploitation such as shoe manufacturing, especially in familialCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200385undertakings. Although certain improvements are visible, still more efforts arerequired.Positive aspects and good practicesThe Network welcomes the appointment in November 2003 <strong>of</strong> 54 new Labour Inspectors inPortugal, as this appears to be decisive for the effective eradication <strong>of</strong> child labour, includingwithin family undertakings where it still appears hardest to track.Article 33. Family and pr<strong>of</strong>essional lifeState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 23 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), by Article 10 <strong>of</strong> the InternationalCovenant on Economic, Social and Cultural Rights (1966), by Articles 8, and 16 <strong>of</strong> theEuropean Social Charter (1961) and Articles 8, 16 and 27 <strong>of</strong> the Revised European SocialCharter.With regard to Article 8 <strong>of</strong> the Revised European Social Charter regarding the right <strong>of</strong>employed women to protection, it notes that: Cyprus considers itself bound by its paragraphs1, 2 and 3; Finland considers itself bound by its paragraphs 2 and 4; Ireland does notconsiders itself bound by its paragraph 3 and Sweden considers itself bound by its paragraphs1 and 3. With regard to Article 8 <strong>of</strong> the European Social Charter (1961) regarding the right <strong>of</strong>employed women to protection, it notes that the following States do not consider themselvesbound by this provision: Denmark (with regard to its paragraphs 2-4), Germany (with regardto its paragraphs 2 and 4), Luxembourg (with regard to its paragraph 4), Malta (with regardto its paragraph 3) and the United Kingdom (with regard to its paragraphs 2-4). It notes thatCyprus does not consider itself bound by Article 16 <strong>of</strong> the European Social Charter (1961)nor by Article 16 <strong>of</strong> the Revised European Social Charter, both regarding the right <strong>of</strong> thefamily to social, legal and economic protection. With regard to Article 27 <strong>of</strong> the RevisedEuropean Social Charter regarding the right <strong>of</strong> workers with family responsibilities to equalopportunities and equal treatment, the Network recalls that 5 Member States have not signedthe Revised European Social Charter: Germany, Hungary, Latvia, Malta and Poland; and that10 Member States have signed the Revised European Social Charter but have not ratified it:Austria, Belgium, Czech Republic, Denmark, Greece, Luxembourg, the Netherlands, SlovakRepublic, Spain and the United Kingdom. Moreover, it notes that Denmark does not consideritself bound by Article 27 <strong>of</strong> the Revised European Social Charter, whilst Cyprus considersitself bound by its paragraph 3 and Ireland does not consider itself bound by its paragraph 1(c).To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 33 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theRevised European Social Charter or, if they have considered such ratification but rejected it,to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernNo conclusions have been adopted under this provision.CFR-CDF.Conclusions.2003.en

86EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSArticle 34. Social security and social assistanceState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Articles 9 and 11<strong>of</strong> the International Covenant on Economic, Social and Cultural Rights (1966), by Articles 26and 27 <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989), by ILO Convention (n° 168)concerning Employment Promotion and Protection against Unemployment (1988), by Article12 and 13 <strong>of</strong> the European Social Charter (1961) and by Articles 12, 13, 30 and 31 <strong>of</strong> theRevised European Social Charter.The Network notes in this regard that ILO Convention n° 168 has been signed and ratified byonly 2 Member States, namely Finland and Sweden.Article 13 <strong>of</strong> the European Social Charter (1961) and Article 13 <strong>of</strong> the Revised EuropeanSocial Charter have the same content whilst the two Articles 12 are very similar. With regardto Article 12 <strong>of</strong> the Revised European Social Charter regarding the right to social security, theNetwork notes that Sweden does not consider itself bound by its paragraph 4 and that Estoniadoes not consider itself bound by its paragraph 2. With regard to Article 12 <strong>of</strong> the EuropeanSocial Charter (1961) regarding the right to social security, it notes that the following Statesdo not consider themselves bound by this provision: Hungary, Latvia, Malta (with regard toits paragraphs 2 and 4), Sweden (with regard to its paragraph 4) and the United Kingdom(with regard to its paragraphs 2-4).With regard to Article 13 <strong>of</strong> the Revised European Social Charter regarding the right to socialand medical assistance, it note that: Cyprus and Slovenia consider themselves bound by itsparagraphs 2 and 3, Lithuania and Estonia consider themselves bound by its paragraphs 1-3.With regard to Article 13 <strong>of</strong> the European Social Charter (1961) regarding the right to socialand medical assistance, it notes that Cyprus and Poland (with regard to its paragraphs 1 and 4)and Slovak Republic (with regard to its paragraph 4) do not consider themselves bound bythis provision.Articles 30 and 31 <strong>of</strong> the Revised European Social Charter go beyond the provisions <strong>of</strong> theEuropean Social Charter. The Network notes in this regard that 5 Member States have notsigned the Revised European Social Charter: Germany, Hungary, Latvia, Malta and Poland.10 Member States have signed the Revised European Social Charter but have not ratified it:Austria, Belgium, Czech Republic, Denmark, Greece, Luxembourg, the Netherlands, SlovakRepublic, Spain and the United Kingdom. It notes that Cyprus, Estonia and Lithuania do notconsider themselves bound by Article 30 <strong>of</strong> the Revised European Social Charter regardingthe right to protection against poverty and social exclusion. With regard to Article 31 <strong>of</strong> theRevised European Social Charter regarding the right to housing, Estonia, Cyprus and Ireland(which made a specific declaration on this provision) do not consider themselves bound bythis provision whilst Lithuania accepts to be bound by its paragraphs 1 and 2.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 34 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments and to accept the corresponding provision <strong>of</strong> theRevised European Social Charter or, if they have considered such ratification but rejected it,to explain their reasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concernNo conclusions have been adopted under this provision.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200387Article 35. Health careState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 12 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), by Article 24 <strong>of</strong> theConvention on the Rights <strong>of</strong> the Child (1989). All the Member States have ratified theseinstruments. The interpretation <strong>of</strong> this provision <strong>of</strong> the Charter must also take into accountArticle 11 <strong>of</strong> the European Social Charter <strong>of</strong> 1961 and Article 11 <strong>of</strong> the Revised EuropeanSocial Charter, regarding the right to protection <strong>of</strong> health, whcih have the same content. Allthe Member States are bound by either <strong>of</strong> these provisions.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights is concerned by thefact that in Poland, the level <strong>of</strong> education in the field <strong>of</strong> sexual and reproductive healthremains insufficient, that family planning services are <strong>of</strong>ten inadequate, and that there isinsufficient access to cheap contraception, as noted by UN Committee on Economic, Socialand Cultural Rights (Concluding Observations <strong>of</strong> 19 December 2002, E/C.12/1/Add.82). Inhis Report for the Committee <strong>of</strong> Ministers and the Parliamentary Assembly on his visit toPoland on 18-22 November 2002, the Commissioner for Human Rights <strong>of</strong> the Council <strong>of</strong>Europe points to cases when women were refused an abortion and related services even incases when it would be legally admissible under Polish law.The Network notes that in Portugal, the system <strong>of</strong> numerus clausus in the access to medicalstudies has led to a shortage <strong>of</strong> doctors, and that medical staff is inequitably distributed acrossthe country, leaving important parts <strong>of</strong> the population <strong>of</strong> the interior with a precarious accessto as basic medical care as family doctors and paediatricians. Moreover, Portugal has thehighest HIV rate in the European Union. More prevention campaigns aiming at changingbehavioural patterns in relation to sexuality are required.The Network considers that the introduction in Belgium, on 1 March 2003, <strong>of</strong> the possibilityfor emergency services in hospitals to require from the patients having “abusively” addressedhim- or herself to those services a supplementary payment <strong>of</strong> 12,50 <strong>eu</strong>ros may penalize thepoorest segment <strong>of</strong> the population, <strong>of</strong>ten obliged to rely on emergency services because <strong>of</strong> theimpossibility for them to consult at an early stage a generalist medical doctor, and who are notalways capable <strong>of</strong> evaluating the “emergency” character certain symptoms present. TheNetwork considers that it cannot be excluded that the introduction <strong>of</strong> this fee will lead certainindigent persons to renounce to be treated at all, which would constitute an unacceptableregression in the right to health.The Network is concerned that in many States, the Roma do not have adequate access tohealth services, including education on matters relating to health. The Network welcomes inthis regard the report “Breaking the Barriers – Romani Women and Access to Public HealthCare”, published by the Council <strong>of</strong> Europe in September 2003, that identifies thediscriminations faced by Roma persons – especially Roma women –, which hinder theiraccess to public health care. The report also highlights the devices that would allow betteraccount to be taken <strong>of</strong> the specificity <strong>of</strong> the situation <strong>of</strong> the Roma community, particularlywomen, with regard to their access to public health care services. The policy <strong>of</strong> “openness”recommended by this report implies inter alia that the workers <strong>of</strong> the health sector familiarisethemselves more with the practices <strong>of</strong> Roma people in the field <strong>of</strong> health and attempt toCFR-CDF.Conclusions.2003.en

88EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSprovide them with adequate accommodations, in order to ensure their non discriminatoryaccess to health care services.Article 36. Access to services <strong>of</strong> general economic interestState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 11 <strong>of</strong> theInternational Covenant on Economic, Social and Cultural Rights (1966), as developed in theGeneral Comment n°4 (1991) <strong>of</strong> the UN Committee on economic, social and cultural rights.All the Member States are parties to this instrument.The interpretation <strong>of</strong> Article 36 <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights should also takeinto account Article 31 <strong>of</strong> the Revised European Social Charter, which recognizes the right tohousing. The Network recalls in this regard that 15 Member States are not parties to thisinstrument: Austria, Belgium, Czech Republic, Denmark, Germany, Greece, Hungary, Latvia,Luxembourg, Malta, the Netherlands, Poland, the Slovak Republic, Spain and the UnitedKingdom. It notes moreover that among the States which have ratified the Revised EuropeanSocial Charter, Cyprus, Estonia and Ireland do not consider themselves bound by thisprovision whilst Lithuania accepts to be bound by its sub-paragraphs 1 and 2.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 36 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged toaccept the corresponding provision <strong>of</strong> the Revised European Social Charter and, as a first steptowards such acceptation, to ratify this instrument or, if they have considered such ratificationbut rejected it, to explain their reasons for doing so and examine whether these explanationsare still valid.Areas <strong>of</strong> concernHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the publication by the European Commission <strong>of</strong> the GreenPaper on services <strong>of</strong> general interest (COM(230)270 final). However, referring to its findingsrecalled under Article 21 <strong>of</strong> the Charter concerning the situation <strong>of</strong> certain Romanisettlements in the Member States, for instance in Cyprus, Greece and Italy, it wouldencourage an explicit ackowledgment that the situation <strong>of</strong> these settlements should bespecifically addressed by measures including affordable public transportation, the availability<strong>of</strong> systems <strong>of</strong> communication, especially where these are required to ensure that the right tohealth and the right to education <strong>of</strong> the Roma population are effectively respected, even whenthey live in settlements segregated from the community. The EU Network <strong>of</strong> IndependentExperts on Fundamental Rights welcomes the fact that the Green paper presents the concept<strong>of</strong> universal service as implying, in particular, the adoption <strong>of</strong> specific measures concerningdisability, age or education. It is however important to present this as constituting anobligation, linked to the requirement <strong>of</strong> non-discrimination, to effectively accommodate thespecific needs <strong>of</strong> the service user, to the extent at least that this does not impose adisproportionate burden on the provider <strong>of</strong> services.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200389Article 37. Environmental protectionState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Articles 2 and 8 <strong>of</strong>the European Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms(1950), to which all Member States are parties.Areas <strong>of</strong> concernHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the adoption <strong>of</strong> Directive 2003/4/EC <strong>of</strong> the EuropeanParliament and <strong>of</strong> the Council <strong>of</strong> 28 January 2003 on public access to environmentalinformation and repealing Council Directive 90/313/EEC and <strong>of</strong> Directive 2003/35/EC <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council <strong>of</strong> 26 May 2003 providing for public participation inrespect <strong>of</strong> the drawing up <strong>of</strong> certain plans and programmes relating to the environment andamending with regard to public participation and access to justice Council Directives85/337/EEC and 96/61/EC, both <strong>of</strong> which seek to ensure the implementation by the MemberStates <strong>of</strong> the UN/ECE « Aarhus » Convention on Access to Information, Public Participationin Decision-Making and Access to Justice in Environmental Matters, which the EC signed on25 June 1998 and which the Commission has proposed to the Council to conclude on behalf<strong>of</strong> the Community.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights also welcomes the proposalsfor a Directive <strong>of</strong> the European Parliament and <strong>of</strong> the Council on access to justice inenvironmental matters, and for a Regulation ensuring the application <strong>of</strong> the AarhusConvention on Access to Information, Public Participation in Decision-making and Access toJustice in Environmental Matters to EC institutions and bodies. Concerning the question <strong>of</strong>access to justice in environmental matters, the EU Network <strong>of</strong> Independent Experts onFundamental Rights notes that the Aarhus Convention does not exclude that a selection ismade amongst the entities seeking to act to ensure that public authorities comply withenvironmental law, where these entities have no direct interest in such proceedings, i.e.,where their subjective rights have not been violated and where they have not been directlyaffected by the act they seek to challenge. Under the proposal made by the Commission for aRegulation ensuring the application <strong>of</strong> the Aarhus Convention on Access to Information,Public Participation in Decision-making and Access to Justice in Environmental Matters toEC institutions and bodies, the Commission will recognize the entities seeking to beconsidered « qualified » to act in the name <strong>of</strong> the preservation <strong>of</strong> the environment. In grantingthis qualification, the Commission is still under the control <strong>of</strong> the European Court <strong>of</strong> Justice,which may take into account Article 2(5) <strong>of</strong> the Aarhus Convention in exercising its controlas to the absence <strong>of</strong> any discrimination or misuse <strong>of</strong> powers. The EU Network <strong>of</strong> IndependentExperts on Fundamental Rights also notes that where, under the proposed Directive <strong>of</strong> theEuropean Parliament and <strong>of</strong> the Council on access to justice in environmental matters,national authorities will have to select qualified non-governmental organisations, a judicialremedy must be available to the organisations who consider that they have been treatedunfairly or in a discriminatory fashion.Article 38. Consumer protectionNo conclusions have been adopted under this provision.CFR-CDF.Conclusions.2003.en

90EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSCHAPTER V : CITIZEN’S RIGHTSArticle 39. Right to vote and to stand as a candidate at elections to the EuropeanParliamentState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 25 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966) and by Article 3 <strong>of</strong> the FirstProtocol to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms(1952), to which all Member States are parties.Areas <strong>of</strong> concernThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes with concern thatthere are sizable populations within the European Union who are without the citizenship <strong>of</strong>any member State and hence excluded from rights <strong>of</strong> political participation and some otherrights under Chapter V. Some but not all <strong>of</strong> them are migrants and hence citizens <strong>of</strong> a thirdcountry. Without trying to be exhaustive, the Network expresses particular concern at twosituations where a particular group is excluded from Article 45 rights or Chapter V rights ingeneral.First, the Network notes that after the dissolution <strong>of</strong> former Czechoslovakia, a part <strong>of</strong> theRoma population that was resident there has remained stateless in respect <strong>of</strong> both Slovakiaand the Czech Republic. As a consequence, they may be denied the right to participate in theJune 2004 elections <strong>of</strong> the European Parliament.Second, the Network notes that in Latvia, non-citizens under the 1995 Law on Status <strong>of</strong>citizens <strong>of</strong> the former USSR who are not citizens <strong>of</strong> Latvia or any other country are neithercitizens, nor foreigners, nor stateless persons. A great proportion <strong>of</strong> the large Russianspeakingpopulation <strong>of</strong> the country falls within this category, unknown in public internationallaw. The same applies to non-citizens in Estonia. The EU Network <strong>of</strong> Independent Experts onFundamental Rights regrets that the situation <strong>of</strong> non-citizens has not been resolved during theentry negotiations between Latvia and Estonia and the EU, with the consequence that noncitizenswill not have a right to stand for elections or be elected in the European Parliament.The Network welcomes the fact that the United Kingdom has implemented the ruling <strong>of</strong> theEuropean Court <strong>of</strong> Human Rights in the Matthews v. the United Kingdom judgment <strong>of</strong> 18February 1999, by the adoption <strong>of</strong> the European Parliament (Representation) Act 2003, whichfollows upon the declaration made by the United Kingdom at the adoption <strong>of</strong> CouncilDecision 2002/772/EC, Euratom <strong>of</strong> 25 June 2002 and 23 September 2002 amending the Actconcerning the election <strong>of</strong> the representatives <strong>of</strong> the European Parliament by direct universalsuffrage, annexed to Decision 76/787/ECSC, EEC, Euratom , OJ L 283 <strong>of</strong> 21/10/2002, p. 1.Positive aspects and good practicesThe Network welcomes the fact that in Luxemburg, the Law <strong>of</strong> 18 February 2003 (Mém. A,2003, 446) has simplified electoral procedures and has facilitated the conditions <strong>of</strong> residencefor the citizend <strong>of</strong> the Union which are nationals from another Member State. This law hasmoreover broadened the right to vote to make it possible for all foreigners, whether citizens <strong>of</strong>the Union or not, to take part in local elections, and has lowered the residency requirementsfor all non-nationals in Luxemburg.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200391Article 40. Right to vote and to stand as a candidate at municipal electionsState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance to the requirements formulated by Article 25 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), by Article 3 <strong>of</strong> the First Protocolto the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1952)and by Article 10 <strong>of</strong> the European Convention on the Participation <strong>of</strong> Foreigners in PublicLife at Local Level (1992).The Network notes in this regard that 17 Member States still have to be sign and theEuropean Convention on the Participation <strong>of</strong> Foreigners in Public Life at Local Level:Austria, Belgium, Estonia, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania,Luxembourg, Malta, Poland, Portugal, Slovak Republic, Slovenia and Spain. 3 MemberStates have signed this instrument but have not ratified it: Cyprus, Czech Republic and theUnited Kingdom.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 40 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the European Convention on the Participation <strong>of</strong> Foreigners in Public Life atLocal Level or, if they have considered such ratification but rejected it, to explain theirreasons for doing so and examine whether these explanations are still valid.Areas <strong>of</strong> concern and Positive aspectsNo conclusions have been adopted under this provision.Article 41. Right to good administrationState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 2 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966) and by Article 13 <strong>of</strong> the EuropeanConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950), to whichall Member States are parties.Areas <strong>of</strong> concern and Positive aspectsNo conclusions have been adopted under this provision.Article 42. Right <strong>of</strong> access to documentsNo conclusions have been adopted under this provision.Article 43. OmbudsmanState <strong>of</strong> ratificationsHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onCFR-CDF.Conclusions.2003.en

92EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSFundamental Rights notes that the Code <strong>of</strong> Good Administrative Behaviour proposed by theOmbudsman, and approved by the European Parliament on 6 September 2001, has not beenimplemented by most EU institutions, agencies or organs. In the absence <strong>of</strong> an adequate legalbasis for the adoption <strong>of</strong> a legal instrument imposing the respect <strong>of</strong> the prescriptions containedin the Code by all institutions, agencies and organs, the EU Network <strong>of</strong> Independent Expertson Fundamental Rights notes that the institutions could adopt a common declaration statingthat they adhere to those prescriptions; such a declaration, which could contain the code in anannex, would make visible the undertaking <strong>of</strong> the institutions to abide by the principles <strong>of</strong> thecode.Areas <strong>of</strong> concern and Positive aspectsNo conclusions have been adopted under this provision.Article 44. Right to petitionNo conclusions have been adopted under this provision.Article 45. Freedom <strong>of</strong> movement and <strong>of</strong> residenceState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter must be read in accordance with the requirements formulated by Article 12 <strong>of</strong> theInternational Covenant on Civil and Political Rights (1966), by Article 2 <strong>of</strong> Protocol n° 4 tothe Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, SecuringCertain Rights and Freedoms other than those already included in the Convention and in theFirst Protocol (1963) and by the European Convention on Establishment (1955).The Network notes in this regard that Greece still has to be sign the Protocol n° 4 to theConvention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms. Spain and theUnited Kingdom have signed this instrument but have not ratified it.It notes that 13 Member States still have to be sign the European Convention onEstablishment: Czech Republic, Cyprus, Estonia, Finland, Hungary, Latvia, Lithuania, Malta,Poland, Portugal, Slovak Republic, Slovenia and Spain. Austria and France have signed thisinstrument but have not ratified it.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 45 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights regrets that the Amended Proposal for a Directive on the right <strong>of</strong> citizens<strong>of</strong> the Union and their family members to move and reside freely within the territory <strong>of</strong> theMember States, which the European Commission presented on 15 April 2003(COM(2003)199 final), does not address the arguments presented in the opinion requestedfrom the Network on certain aspects <strong>of</strong> the initial proposal (Opinion n°1-2003 <strong>of</strong> 10 AprilCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003932003). In particular, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notesthat the Amended Proposal has not followed upon the suggestion <strong>of</strong> the European Parliament,concerning the definition <strong>of</strong> « members <strong>of</strong> the family » in the proposed instrument. As aresult, a marriage concluded validly in certain Member States may not be recognized by otherMember States for the purposes <strong>of</strong> family r<strong>eu</strong>nification, for the sole reason that the marriageis between two persons <strong>of</strong> the same sex rather than between two persons <strong>of</strong> the opposite sex.This constitutes a discrimination on the ground <strong>of</strong> sexual orientation, prohibited by Articles 8and 14 combined <strong>of</strong> the European Convention on Human Rights and by Article 21 <strong>of</strong> theCharter <strong>of</strong> Fundamental Rights.In that respect, the Network notes with interest that in May 2003 a bill was submitted toParliament <strong>of</strong> the Netherlands, to regulate private international law on registered partnerships(partnerships that involve the <strong>of</strong>ficial registration <strong>of</strong> exclusive legal relationships and that leadto rights and obligations which are similar to matrimonial ones) for international situations(Kamerstukken II, 2002-2003, 28 924). This initiative takes place within a wider evolution. InOpinion R-170/02 <strong>of</strong> 27 August 2003, the Ombudsman (Provedor de Justiça) in Portugal,confronted with the case <strong>of</strong> a Portuguese citizen who was unable to have his marriage with aDutch person <strong>of</strong> the same sex although this marriage is valid under Dutch law, consideredthat, even if the marriage as such could not be recognized, at least certain consequences –patrimonial effects or, for instance, family r<strong>eu</strong>nion – could be nevertheless derived from thesame-sex marriage, without such consequences being in contradiction with the public policy<strong>of</strong> Portugal. In Belgium, a circulaire <strong>of</strong> 24 January 2004 replacing a previous circulaire <strong>of</strong> 8May 2003 on the Law <strong>of</strong> 13 February 2003 opening up marriage for persons <strong>of</strong> the same sexand amending certain provisions <strong>of</strong> the Civil Code considers that, as discrimination based onsexual orientation is against the public policy <strong>of</strong> Belgium, the foreign law prohibitingmarriage between persons <strong>of</strong> the same sex should not constitute an obstacle to the celebrationin Belgium <strong>of</strong> marriage between two persons <strong>of</strong> the same sex, ins<strong>of</strong>ar as at least one <strong>of</strong> themembers <strong>of</strong> the couple has the nationality <strong>of</strong>, or is habitually residing in, a country whichrecognizes same-sex unions (M.B., 24.1.2004). These developments show the need toorganize better the mutual recognition <strong>of</strong> civil status within the European Union for thepurposes <strong>of</strong> family r<strong>eu</strong>nion, in a context which is rapidly evolving towards the organisation <strong>of</strong>different modes <strong>of</strong> organisation <strong>of</strong> same-sex couples.As regards the situation created in Ireland after the decision <strong>of</strong> the Supreme Court in the case<strong>of</strong> Lobe & Osayande [2003] on the position <strong>of</strong> non-national families <strong>of</strong> Irish-born childrenwhose right <strong>of</strong> residence is no longer considered to be ‘automatic’, the Network refers to itsconclusions adopted under Article 7 <strong>of</strong> the Charter.Article 46. Diplomatic and consular protectionNo conclusions have been adopted under this provision.CHAPTER VI : JUSTICEArticle 47. Right to an effective remedy and to a fair trialState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in accordancewith Article 52(3) <strong>of</strong> Charter <strong>of</strong> Fundamental Rights, paragraphs 2 and 3 <strong>of</strong> this provision <strong>of</strong>the Charter have the same meaning than Article 6 paragraph 1 <strong>of</strong> the European ConventionCFR-CDF.Conclusions.2003.en

94EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSfor the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950), to which theycorrespond, although they have a broader scope.The Network notes moreover that this provision <strong>of</strong> the Charter must be read in accordance tothe requirements formulated by Articles 2(3) and 4(1) <strong>of</strong> the International Covenant on Civiland Political Rights (1966) and by Article 13 <strong>of</strong> the European Convention for the Protection<strong>of</strong> Human Rights and Fundamental Freedoms (1950), to which all Member States are parties.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that in virtuallyall the Member States, reducing the length <strong>of</strong> judicial proceedings, especially in civil andadministrative cases, should constitute an absolute priority. The delays are such, in manycases, that they amount to a denial <strong>of</strong> justice. Moreover, States should ensure that an effectiveremedy is available to the litigants concerned by the development <strong>of</strong> an excessive delay inproceedings, as required by Article 13 <strong>of</strong> the European Convention on Human Rights.At the same time, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes thata number <strong>of</strong> initiatives adopted to respond to the need to limit the workload <strong>of</strong> the judicialsystem and enable it to deliver judgments within a reasonable time may lead todisproportionate restrictions being imposed on the rights <strong>of</strong> defence or the right <strong>of</strong> access to acourt. In Malta for instance, the level <strong>of</strong> Court registry fees payable by the parties was raisedin order to discourage vexatious litigation. The effective implementation <strong>of</strong> this system shouldbe closely monitored to ensure that it will not disproportionately affect indigent litigants withpossibly meritorious cases from bringing cases to court. In the Netherlands, the concern toincrease the efficiency and capacity <strong>of</strong> the legal system is reflected in a number <strong>of</strong> legislativeproposals, for instance on the wider use <strong>of</strong> administrative sanctions (Kamerstukken II, 2002–2003, 29 000); the extension <strong>of</strong> the length <strong>of</strong> pre-trial detention whilst limiting the number <strong>of</strong>hearings <strong>of</strong> the suspect (Kamerstukken II, 2003–2004, 29 253); the extension <strong>of</strong> thepossibilities for the Courts <strong>of</strong> Appeal to refuse the hearing <strong>of</strong> witnesses à décharge in appealproceedings (Kamerstukken II, 2003–2004, 29 254); the lowering the requirements formotivation <strong>of</strong> criminal judgments against persons that have confessed to the charge(Kamerstukken II, 2003–2004, 29 255). Again, the impact on the rights <strong>of</strong> defence <strong>of</strong> theseproposed modifications should be closely monitored, as they may appear to bedisproportionate to the aim pursued. Even the proposal to create the possibility for theOpenbaar Ministerie [Public Prosecutor’s Office] to impose pecuniary sanctions for certaincriminal <strong>of</strong>fences (Kamerstukken II, 2003-2004, 29 279, no. 1, p. 17, and see Staatscourant17 January 2003) may be questionable, as this could lead to violating the right <strong>of</strong> theindividual concerned to have access to a court for the determination <strong>of</strong> the criminal chargeagainst him. The same concerns may be raised in Italy where the Law n°134 <strong>of</strong> 12 June 2003extends the field <strong>of</strong> application <strong>of</strong> the alternative procedure in criminal matters: thisalternative procedure – so-called “procedure for the application <strong>of</strong> the penalty on the request<strong>of</strong> the parties” – consisting in an agreement concluded between the public prosecutor and theaccused, henceforth can be used for any <strong>of</strong>fence where the penalty incurred includes amaximum <strong>of</strong> 5 years <strong>of</strong> imprisonment. Similarly in France, the Law <strong>of</strong> 12 June 2003reinforcing the fight against road violence imposes new burdens on the <strong>of</strong>fender who wants tocontest the inclusive fine that has been imposed to him. With the intention <strong>of</strong> avoidingabusive appeals, on the one hand the law now requires the previous consignment <strong>of</strong> a sumcorresponding to the amount <strong>of</strong> the incurred fine and on the other hand, provides a 10%overcharge <strong>of</strong> the fine when the court, acting on the request <strong>of</strong> the presumed <strong>of</strong>fender, findsthe <strong>of</strong>fender guilty. These provisions can chill the exercise <strong>of</strong> the right to access to a court.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200395In general, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights insists thatprocedural innovations such as those described above should not be seen as an alternative togiving sufficient resources to the judicial system, to ensure that it will have the requiredpersonnel and equipment to adequately cope with the demands <strong>of</strong> an increasing case-load.The Network notes that in its concluding observations on Belgium, which it delivered in May2003, the Committee against Torture <strong>of</strong> the United Nations (CAT) expresses its concern vis-àvisthe non-suspensive character <strong>of</strong> the actions for annulement lodged with the Council <strong>of</strong>State by persons who have been served with an order to leave the territory (CAT/C/CR/30/6).The Committee also expresses its worry vis-à-vis the delays <strong>of</strong> the administration in theimplementation <strong>of</strong> the ministerial guidelines <strong>of</strong> 2002 concerning the suspensive effect <strong>of</strong> theemergency remedies used by rejected asylum-seekers (para. 5, e)). The CAT recommends toconfer a suspensive character, non only to those remedies, but also to all actions seeking theannulment <strong>of</strong> an expulsion order, where the foreigner concerned alleges that he/she risksbeing subjected to torture in the country to which he/she is to be returned (para. 7, d)). Theseobservations gain further importane in the light <strong>of</strong> the fact that they concern theimplementation <strong>of</strong> the obligations <strong>of</strong> Belgium under the European Convention on HumanRights, which the judgment <strong>of</strong> 5 February 2002 in the case <strong>of</strong> Conka v. Belgium hasconfirmed. Almost two years after the judgment has been delivered, Belgium still has notexecuted it adequately. In order to do so faithfully, Belgium should provide that the action forthe annulment <strong>of</strong> the expulsion order lodged with the Council <strong>of</strong> State, should be consideredsuspensive ipso facto, and that this implies a prohibition imposed on the Aliens’ Office(Office des étrangers) to execute the order to leave the territory which has been notified to theforeigner.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights regrets that the situation inBelgium is not exceptional in the Union. In Italy the orders <strong>of</strong> removal from the territory areautomatically carried out and the delay for lodging an appeal can not suspend theimplementation <strong>of</strong> such orders. This deprives the existing standards, regarding the prohibition<strong>of</strong> removals, <strong>of</strong> any efficiency. In Portugal, appeals against negative decisions by the SEFcan be made to the National Commissariat for Refugees, and from there to the AdministrativeSupreme Court. However, appeals against admissibility decisions are not suspensive, whichenables the deportation <strong>of</strong> asylum seekers rejected by the SEF before a final decision has beenreached. Though deportations are rare, it would nonetheless be preferable to guarantee thesuspensive effect <strong>of</strong> appeals against admissibility decisions. In Lithuania, according to theLaw on Refugee Status, appeals against negative decisions on admissibility do not have asuspensive effect on deportation. In Sweden, it is also unfortunately still true that orders <strong>of</strong>removal from the territory are executed whilst the appeal is still pending.The Network also remarks that a specific problem has occurred in the Slovak Republic withrespect to the enforceability <strong>of</strong> rulings <strong>of</strong> the Constitutional Court, especially when theycontain awards <strong>of</strong> financial compensation. It is not infrequent for the courts in this country tonot respect the ruling <strong>of</strong> the Constitutional Court in this regard, arguing that they do not haveenough financial means in their budgets, which would cover these payments.The examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union also leads the Network to conclude that a number<strong>of</strong> obstacles remain to the availability <strong>of</strong> legal aid, in the conditions prescribed by Article 47,al. 3, <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights. Legal aid may not be available for certaincriminal proceedings (for instance, for for criminal proceedings which do not bear a minimumsentence <strong>of</strong> one year, as in Cyprus) or to seek compensation for certain types <strong>of</strong> <strong>of</strong>fences (forinstance in Slovenia, the injured party will be granted legal aid with respect to criminal<strong>of</strong>fences involving insulting behaviour, libel, defamation and slander, only if the victimproves the probability that he or she has suffered legally admissible damage due to these<strong>of</strong>fences); it may not be available for certain categories <strong>of</strong> litigants, in particularCFR-CDF.Conclusions.2003.en

96EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSundocumented aliens ; it may depend on the lack <strong>of</strong> sufficient resources <strong>of</strong> the applicant, butthe means <strong>of</strong> proving such a lack <strong>of</strong> resources may be unclear and therefore create a risk <strong>of</strong>arbitrary determination by the competent authority (Poland), or simply impose a thresholdwhich, in effect, will make it impossible for persons even with unsufficient resources to begranted legal aid.The EU Network <strong>of</strong> Independent Experts on Fundamental Rights welcomes the CouncilDirective 2002/8/EC <strong>of</strong> 27 January 2003 to improve access to justice in cross-border disputesby establishing minimum common rules relating to legal aid for such disputes (OJ L 26 <strong>of</strong>31.1.2003, p. 41), which seeks to promote the application <strong>of</strong> legal aid in cross-border disputesfor persons who lack sufficient resources where aid is necessary to secure effective access tojustice. It would encourage any initiative seeking to improve further the effective and uniformapplication <strong>of</strong> EU Law, which at present is endangered by the disparity <strong>of</strong> approaches theMember States have taken towards the provision <strong>of</strong> legal aid. Although it is aware that thepowers <strong>of</strong> the European Community are limited in this regard, it notes that such an initiativecould be part <strong>of</strong> a broader attempt to ensure that the remedies available before the nationaljurisdictions <strong>of</strong> the Member States <strong>of</strong>fer an adequate level <strong>of</strong> protection to all persons whoinvoke European law before these jurisdictions.Having examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, indeed, the EU Network <strong>of</strong> IndependentExperts on Fundamental Rights notes that the Commission could usefully encourage acomparative study <strong>of</strong> the remedies available before the national jurisdictions <strong>of</strong> the MemberStates where a Community act <strong>of</strong> general scope affects a person directly, even before anyimplementation measure is adopted by the national authorities. Such a study would exhibit towhich extent the effectiveness <strong>of</strong> judicial protection differs according to the Member Statewhere the subject <strong>of</strong> EC Law resides or conducts his/her activities, and if necessary, it couldlead to call for an adaptation <strong>of</strong> the powers <strong>of</strong> the national jurisdictions where the judicialprotection appears unsufficient with regard to the requirements <strong>of</strong> Article 47 <strong>of</strong> the Charter.The Commission could, basing itself on the results <strong>of</strong> such a study, present a communicationidentifying the obligations which follow for the Member States, in the organisation <strong>of</strong>remedies before the national courts, from Article 47 <strong>of</strong> the Charter <strong>of</strong> Fundamental Rights andArticle 10 EC. It is important to ensure that, when they contribute to the implementation <strong>of</strong>European law, the national courts respect all the requirements which follow from the right toan effective remedy, although this may in certain cases require that their powers be adapted tothat purpose.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights recommends to the EuropeanCommission to prepare such a study and, if necessary, it recommends to the EuropeanParliament to request such an initiative from the Commission (Article 192, al. 2 EC).Positive aspects and good practicesThe EU Network <strong>of</strong> Independent Experts in Fundamental Rights welcomes the fact that inGreece, specific organs should be set up within each jurisdiction to examine the allegedrefusal <strong>of</strong> the Greek administration to comply with the judgments delivered against it. TheNetwork expresses the hope that this reform will be effectively and promptly implemented inpractice.The EU Network <strong>of</strong> Independent Experts in Fundamental Rights recalls that the scope <strong>of</strong>application <strong>of</strong> Article 47 <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights is wider than that <strong>of</strong>Article 6 ECHR, although it imposes that all the guarantees <strong>of</strong> this provision are respectedwhere the rights and freedoms guaranteed by the law <strong>of</strong> the Union have arguably beenviolated. Therefore it welcomes the fact that in France, the Council <strong>of</strong> State has quashed theOrder <strong>of</strong> 24 April 2001 regarding the rights <strong>of</strong> foreigners placed in administrative custody,CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200397because the Order did not provide the possibility for the lawyers and interpreters – when theforeigner expresses this request – to have access at any time to the administrative detentioncentres, and did not ensure that a space would be created in the holding centres, equipped inparticular with a phone line and a fax, where the confidentality <strong>of</strong> the meeting <strong>of</strong> the foreignerand his or her counsel could be guaranteed.The Network notes with interest that in Poland, the Minister <strong>of</strong> Justice has adopted in April2003 the document “Strategic tasks <strong>of</strong> the Ministry <strong>of</strong> Justice and the Central Management <strong>of</strong>the Prison Service for 2003 and Subsequent Years” in order to create conditions forsubstantial improvements in the system <strong>of</strong> administration <strong>of</strong> justice. It also welcomes thesubstantial increase <strong>of</strong> the budget <strong>of</strong> the administration <strong>of</strong> justice for 2004.Article 48. Presumption <strong>of</strong> innocence and right <strong>of</strong> defenceState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter corresponds to Article 6 paragraphs 2 and 3 <strong>of</strong> the European Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms (1950).This provision <strong>of</strong> the Charter moreover must be read in accordance to the requirementsformulated by Article 14 <strong>of</strong> the International Covenant on Civil and Political Rights (1966),and by Articles 40 (2) b and 40 (3) <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989), towhich all the Member States are parties.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights concludes that thefollowing situations should be the source <strong>of</strong> particular concern to the institutions <strong>of</strong> the Union:In a number <strong>of</strong> Member States, including Austria, Belgium, Ireland, and Lithuania,a person arrested by the police is not recognized the right to obtain access from theoutset <strong>of</strong> his/her detention to a lawyer. The Network notes that this situation has beencriticized both by the United Nations Committee Against Torture and the EuropeanCommittee for the Prevention <strong>of</strong> Torture. Moreover, the right to have access to alawyer upon the moment <strong>of</strong> the arrest should not be made to depend on the resources<strong>of</strong> the suspect or the defendant : legal aid should be made available also with respect tolegal assistance in such a situation. The Network welcomes the fact that in Austria,following the judgment <strong>of</strong> the Administrative Court <strong>of</strong> 17 September 2002 (VwGH,2000/01/0325), which outlawed the common practice <strong>of</strong> the police not to informsuspects <strong>of</strong> their right to counsel and to refuse the presence <strong>of</strong> counsel during policeinterrogations, the Ministries <strong>of</strong> the Interior and Justice issued a joint decree (Decree20.317/417-II/1/03 <strong>of</strong> 6 February 2003) instructing the security authoritiescorrespondingly.In the Netherlands, the Duch Data Protection Authority released a report on 16 July2003 where it considers current police practice as regard tapping and registration <strong>of</strong>confidential telecommunication with lawyers or other legal advisers, and denouncessuch pratice as illegal.In 2003, the EU Network <strong>of</strong> Independent Experts in Fundamental Rights hadidentified in its Thematic Comment “The Balance between freedom and security in theCFR-CDF.Conclusions.2003.en

98EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSresponse by the European Union and its Member States to the terrorits threaths” thetrend towards limiting the right to privacy, including secrecy <strong>of</strong> communications, andthe rights <strong>of</strong> defence, for the sake <strong>of</strong> combating organised crime including particularlyterrorism. This trend has been confirmed during the period under scrutiny. InDenmark, the Parliament adopted the Act (2003:436) amending the criminal Code andthe Administration <strong>of</strong> Justice Act extending the rules concerning the use <strong>of</strong> civilagents, the possibilities for the police to use confiscation and to conceal the identity <strong>of</strong>certain police <strong>of</strong>ficers, and extending the possibility <strong>of</strong> phone tapping and data reading.This Act also limits the rights <strong>of</strong> the accused to access certain documents in criminalcases. In the Netherlands, although the parliament had decided in 1999 that criminalinfiltration should not be used because <strong>of</strong> the risk <strong>of</strong> abuses it entailed, exceptions weremade in 2003. In Luxembourg, a draft law <strong>of</strong> 20 May 2003 strengthening the rights <strong>of</strong>victims <strong>of</strong> criminal <strong>of</strong>fences and improving the protection <strong>of</strong> witnesses (Doc. parl.n°5156) introduced the possibility <strong>of</strong> using anonymous witnesses in the context <strong>of</strong>criminal procedures. In Belgium, the law <strong>of</strong> 6 January 2003 regarding special methods<strong>of</strong> research and other methods <strong>of</strong> investigation (M.B., 12 May 2003) provided a legalbasis for the so-called special methods <strong>of</strong> research (observation, infiltration and the use<strong>of</strong> informers), which have the following common characteristics: they are discreetmeasures, leading to interferences by public authorities into the right <strong>of</strong> respect forprivate life, used proactively – i.e., before the <strong>of</strong>fence has been committed – and thepossible use <strong>of</strong> trickery in derogation from common rules <strong>of</strong> criminal procedure. Thislaw also allows for other methods <strong>of</strong> inquiry such as the interception <strong>of</strong> mail, theentering <strong>of</strong> a private place or home in order to undertake direct phone tappings or thegathering <strong>of</strong> data regarding bank accounts and bank transactions. There is a real riskthat these developments, although justified by the need to combat terrorism and otherforms <strong>of</strong> organised crime, expand certain techniques limiting the right to private life orthe rights <strong>of</strong> defence to the investigation <strong>of</strong> other <strong>of</strong>fences, and become a permanentand usual part <strong>of</strong> the law on criminal procedure.Positive aspects and good practicesHaving examined the report evaluating the activities <strong>of</strong> the institutions <strong>of</strong> the Union on thebasis <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights, the EU Network <strong>of</strong> Independent Experts onFundamental Rights welcomes the presentation by the Commission, on 19 February 2003, <strong>of</strong>the Green Paper on Procedural Safeguards for Suspects and Defendants in CriminalProceedings throughout the European Union (COM(2003)75 final). The EU Network <strong>of</strong>Independent Experts on Fundamental Rights would encourage the inclusion <strong>of</strong> a set <strong>of</strong> rights<strong>of</strong>fering an adequate protection against the specific risk <strong>of</strong> ill-treatment in the hands <strong>of</strong> thepolice in any initiative <strong>of</strong> the Union seeking to identify the fundamental rights <strong>of</strong> the suspectsthroughout the Union from the moment <strong>of</strong> the arrest. Taking due account <strong>of</strong> the standards setby the European Committee for the Prevention <strong>of</strong> Torture and Inhuman or DegradingTreatments or Punishments, the Network would include in such a list <strong>of</strong> rights the right <strong>of</strong> theaccused person, from the moment <strong>of</strong> the arrest, to have access to a lawyer, to a doctor, and toa third person, f.i. a relative, to inform that person <strong>of</strong> his/her situation, unless certainexceptions can be justified in order to protect the legitimate interests <strong>of</strong> the policeinvestigation, to the extent that such clearly defined exceptions are strictly limited in time, andare accompanied by appropriate safeguards; the right <strong>of</strong> the accused person, from the moment<strong>of</strong> detention, to receive a statement <strong>of</strong> his/her rights in a language both accessible andunderstandable, and unless the accused signs a declaration according to which he/she has beenprovided that information, not to be questioned in the absence <strong>of</strong> a lawyer; the right to beinformed that the purpose <strong>of</strong> questioning is to establish facts, and not to lay pressure on theperson suspected <strong>of</strong> having committed an <strong>of</strong>fence ; the right not to be put in a vulnerableposition during the questioning; the right to be questioned only by identified police <strong>of</strong>ficers.CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200399The Network welcomes the fact that in Austria, in accordance with a judgment from theAdministrative Court (VwGH, 2000/01/0325, judgement <strong>of</strong> 17 September 2002), theMinistries <strong>of</strong> the Interior and Justice issued a joint decree on 6 February 2003 (Decree20.317/417-II/1/03) outlawing the common practice <strong>of</strong> the police not to inform suspects <strong>of</strong>their right to counsel and to refuse the presence <strong>of</strong> counsel during police interrogations.Article 49. Principles <strong>of</strong> legality and proportionality <strong>of</strong> criminal <strong>of</strong>fences and penaltiesState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that Article 49(1) <strong>of</strong>the Charter (with the exception <strong>of</strong> the last sentence) and (2) correspond to Article 7 <strong>of</strong> theEuropean Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1950).The Network notes that this provision <strong>of</strong> the Charter must be read in accordance to therequirements formulated by Article 15 <strong>of</strong> the International Covenant on Civil and PoliticalRights (1966), and by Article 40 (2)b and 40 (3) <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child(1989), to which all Member States are parties.Areas <strong>of</strong> concernUpon examination <strong>of</strong> the reports submitted by its members on the situation <strong>of</strong> fundamentalrights in the 25 Member States <strong>of</strong> the Union and on the activities <strong>of</strong> the institutions <strong>of</strong> theUnion, the EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that uponconsidering the second periodic report submitted by Estonia on 15 April 2003 the HumanRights Committee expressed the concern that the relatively broad definition <strong>of</strong> the crime <strong>of</strong>terrorism and <strong>of</strong> membership <strong>of</strong> a terrorist group under the Criminal Code may have adverseconsequences for the protection <strong>of</strong> rights under article 15 <strong>of</strong> the CCPR which corresponds toArticle 49 <strong>of</strong> the EU Charter <strong>of</strong> Fundamental Rights. It requested that Estonia ensured thatcounter-terrorism measures, whether taken in connection with Security Council resolution1373/2001 or otherwise, are in full conformity with the Covenant (CCPR/CO/77/EST,Concluding observations <strong>of</strong> the Human Rights Committee : Estonia, 15/04/2003, C, p. 8). TheEU Network <strong>of</strong> Independent Experts on Fundamental Rights recalls in that respect that, in theThematic Comment “The Balance between freedom and security in the response by theEuropean Union and its Member States to the terrorits threaths” it has presented on the basis<strong>of</strong> its findings relating to 2002, it had emphasized that, where certain consequences such asthe possibility to use certain methods <strong>of</strong> inquiry or to impose penalties <strong>of</strong> a certain levelderive from the identification <strong>of</strong> a criminal <strong>of</strong>fence as “terrorist”, a simple reproduction, in thedomestic criminal law, <strong>of</strong> the definition <strong>of</strong> terrorism proposed by the Council FrameworkDecision <strong>of</strong> 13 June 2002 on combating terrorism (OJ L 164 <strong>of</strong> 22.6.2002, p. 3) may not becompatible with the requirements <strong>of</strong> Article 7 <strong>of</strong> the European Convention on Human Rights(Thematic Comment n°1, pp. 7, 11 and 16).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights is also concerned by the factthat in Cyprus, some <strong>of</strong> the persons detained in the Central Prisons <strong>of</strong> Nicosia, that weresentenced for life at a time when life sentence according to the relevant Prisons Regulationshad a specific limit, have been informed that since the said regulations were subsequentlyheld to be ultra vires, they are not going to be released on the expected date, but are going tobe held for life.In the Slovak Republic,according to the Code <strong>of</strong> Criminal Procedure, a person indicted forhaving committed certain <strong>of</strong>fences may be afforded a time-limit <strong>of</strong> only three days to file acomplaint against that decision, even where the person concerned has just been notified <strong>of</strong> thecriminal proceeding. The Network finds this time-limit for filing complaint against decisionCFR-CDF.Conclusions.2003.en

100EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSissued in criminal proceeding stated in aforesaid provision <strong>of</strong> the Code <strong>of</strong> Criminal Procedur<strong>eu</strong>nreasonably short, and therefore incompatible with the right to a fair trial and the rights <strong>of</strong>defence guaranteed in the Articles 47 and 48 <strong>of</strong> the Charter.Article 50. Right not to be tried or punished twice in criminal proceedings for the samecriminal <strong>of</strong>fenceState <strong>of</strong> ratificationsThe EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes that this provision <strong>of</strong>the Charter has the same meaning than the corresponding Article 4 <strong>of</strong> Protocol n° 7 to theEuropean Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms (1984),although its scope is wider.It notes that this provision <strong>of</strong> the Charter must be read in accordance to the requirementsformulated by Article 14 <strong>of</strong> the International Covenant on Civil and Political Rights (1966),and by Articles 40 (2)b and 40 (3) <strong>of</strong> the Convention on the Rights <strong>of</strong> the Child (1989).The EU Network <strong>of</strong> Independent Experts on Fundamental Rights notes in this regard thatBelgium and the United Kingdom still have to be sign Protocol n° 7 to the Convention for theProtection <strong>of</strong> Human Rights and Fundamental Freedoms. 4 Member States have signed it buthave not ratified it: Germany, the Netherlands, Portugal and Spain.To ensure a minimal level <strong>of</strong> protection <strong>of</strong> the right guaranteed in Article 50 <strong>of</strong> the EUCharter <strong>of</strong> Fundamental Rights throughout the Union, all Member States are encouraged tosign and ratify the corresponding instruments or, if they have considered such ratification butrejected it, to explain their reasons for doing so and examine whether these explanations arestill valid.Areas <strong>of</strong> concernNo conclusions have been adopted under this provision.CFR-CDF.Conclusions.2003.en

ANNEXE 1United NationsStatus <strong>of</strong> Ratifications <strong>of</strong> the Fundamental Conventions(Status as <strong>of</strong> 15/02/2004)- Slavery Convention, 25 th September 1926 (CE)- Convention for the Suppression <strong>of</strong> the Traffic in Persons and <strong>of</strong> the Exploitation <strong>of</strong> the Prostitution <strong>of</strong> Others, 21 st March 1950 (CRTEH)- Convention relating to the Status <strong>of</strong> Refugees, 28 th July 1951 (CSR)- Convention on the Political Rights <strong>of</strong> Women, 31 st March 1953 (CDPF)- Protocol amending the Slavery Convention, 7 th December 1953 (CE-P)- Convention relating to the Status <strong>of</strong> Stateless Persons, 28 th September 1954 (CSA)- Supplementary Convention on the Abolition <strong>of</strong> Slavery, the Slave Trade, and Institutions and Practices similar to Slavery, 7 th September 1956 (CSAE)- Convention on consent to Marriage, Minimum Age for Marriage and Registration <strong>of</strong> Marriages, 10 th December 1962 (CCM)- International Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Racial Discrimination, 21 st December 1965 (CERD)- International Covenant on Economic, Social and Cultural Rights, 16 th December 1966 (CESCR)- International Covenant on Civil and Political Rights, 16 th December 1966 (CCPR)- Optional Protocol to the International Covenant on Civil and Political Rights, 16 th December 1966 (CCPR-P1)- Protocol relating to the Status <strong>of</strong> Refugees, 31 st January 1967 (CSR-P)- Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women, 18 th December 1979 (CEDAW)- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 th December 1984 (CAT)- Convention on the Rigths <strong>of</strong> the Child, 20 th November 1989 (CRC)- Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition <strong>of</strong> the Death Penalty, 15 th December 1989 (CCPR-P2)- International Convention on the Protection <strong>of</strong> the Rights <strong>of</strong> All Migrant Workers and Members <strong>of</strong> Their Families, 18 th December 1990 (MWC)- Optional Protocol to the Convention on the Elimination <strong>of</strong> All Forms <strong>of</strong> Discrimination against Women, 6 th October 1999 (CEDAW-P)- Optional Protocol to the Convention on the Rigths <strong>of</strong> the Child on the Involvement <strong>of</strong> Children in Armed Conflict, 25 th May 2000 (CRC-P1)- Optional Protocol to the Convention on the Rigths <strong>of</strong> the Child on the Sale <strong>of</strong> Children, Child Prostitution and child pornography, 25 th May 2000 (CRC-P2)- Rome Statute <strong>of</strong> the International Criminal Court, 18 th July1998 (ICC)- Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 18 th december 2002 (not in force)(CAT-P)

102EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSCESCR CCPR CCPR-P1 CCPR-P2 CERD CEDAW CEDAW-P CAT CAT-P CRC CRC-P1 CRC-P2 MWCGermany 17/12/73 17/12/73 1 25/08/93 2 18/08/92 16/05/69 3 10/07/85 4 15/01/02 01/10/90 5 - 06/03/92 6 s. 09/00 s. 09/00 -Austria 10/09/78 10/09/78 7 10/12/87 8 02/03/93 09/05/72 9 31/03/82 10 07/09/00 29/07/87 11 s. 09/03 06/08/92 12 01/02/02 s. 09/00 -Belgium 21/04/83 13 21/04/83 14 17/05/94 08/12/98 07/08/75 15 10/07/85 16 s. 12/99 25/06/99 17 - 16/12/91 18 06/05/02 s. 09/00 -Denmark 06/01/72 19 06/01/72 20 06/01/72 21 24/02/94 09/12/71 22 21/04/83 31/05/00 27/05/87 23 s. 06/03 19/07/91 24 28/08/02 24/07/03 25 -Spain 27/04/77 27/04/77 26 25/01/85 27 11/04/91 13/09/68 28 05/01/84 29 06/07/01 21/10/87 30 - 06/12/90 31 08/03/02 18/12/01 -Finland 19/08/75 19/08/75 32 19/08/75 04/04/91 14/07/70 33 04/09/86 29/12/00 30/08/89 34 s. 09/03 21/06/91 11/04/02 s. 09/00 -France 04/11/80 35 04/11/80 36 17/02/84 37 - 28/07/71 38 14/12/83 39 09/06/00 18/02/86 40 - 08/08/90 41 05/03/03 05/02/03 -Greece 16/05/85 05/05/97 05/05/97 05/05/97 42 18/06/70 07/06/83 24/01/02 06/10/88 43 - 11/05/93 22/10/03 s. 09/00 -Ireland 08/12/89 44 08/12/89 45 08/12/89 46 18/06/93 29/12/00 47 23/12/85 48 08/09/00 11/04/02 - 28/09/92 18/11/02 s. 09/00 -Italy 15/09/78 15/09/78 49 15/09/78 50 14/02/95 05/01/76 51 10/06/85 22/09/00 12/01/89 52 s. 08/03 05/09/91 10/05/02 10/05/02 -Luxembg 18/08/83 18/08/83 53 18/08/83 54 12/02/92 01/05/78 55 02/02/89 56 01/10/03 29/09/87 57 - 07/03/94 58 s. 09/00 s. 09/00 -Netherlands 11/12/78 59 11/12/78 60 11/12/78 26/03/91 10/12/71 61 23/07/91 62 22/05/02 21/12/88 63 - 06/02/95 64 s. 09/00 s. 09/00 -Portugal 31/07/78 15/06/78 03/05/83 17/10/90 24/08/82 65 30/07/80 26/04/02 09/02/89 66 - 21/09/90 19/08/03 16/05/03 -UK 20/05/76 67 20/05/76 68 - 10/12/99 07/03/69 69 07/04/86 70 - 08/12/88 71 s. 06/03 16/12/91 72 24/07/03 s. 09/00 -Sweden 06/12/71 73 06/12/71 74 06/12/71 75 11/05/90 06/12/71 76 02/07/80 24/07/03 08/01/86 77 s. 06/03 29/06/90 20/02/03 s. 06/00 -Cyprus 02/04/69 02/04/69 15/04/92 10/09/99 78 21/04/67 79 23/07/85 26/04/02 18/07/91 80 - 07/02/91 - s. 02/01 -Estonia 21/10/91 21/10/91 21/10/91 30/01/04 21/10/91 21/10/91 - 21/10/91 - 21/10/91 s. 09/03 s. 09/03 -Hungary 17/01/74 81 17/01/74 82 07/09/88 24/02/94 01/05/67 83 22/12/80 22/12/00 15/04/87 84 - 08/10/91 s. 03/02 s. 03/02 -Latvia 14/04/92 14/04/92 22/06/94 - 14/04/92 15/04/92 - 14/04/92 - 15/04/92 s. 02/02 s. 02/02 -Lithuania 20/11/91 20/11/91 20/11/91 28/03/02 10/12/98 18/01/94 s. 09/00 01/02/96 - 31/01/92 20/03/03 - -Malta 13/09/90 85 13/09/90 86 13/09/90 87 24/12/94 27/05/71 88 08/03/91 89 - 13/09/90 90 24/09/03 30/09/90 91 10/05/02 s.09/00 -Poland 18/03/77 18/03/77 92 07/11/91 93 s. 03/00 05/12/68 94 30/07/80 s. 12/03 26/07/89 95 - 07/06/91 96 s. 02/02 s. 02/02 -Czech R. 01/01/93 97 22/02/93 98 22/02/93 - 22/02/93 99 22/02/93 27/02/01 01/01/93 100 - 22/02/93 101 30/11/01 102 - -Slovakia 28/05/93 103 28/05/93 104 28/05/93 22/06/99 28/05/93 105 28/05/93 17/11/00 28/05/93 106 - 28/05/93 107 s. 11/01 s. 11/01 -Slovenia 06/07/92 06/07/92 108 16/07/93 109 10/03/94 06/07/92 110 06/07/92 s. 12/99 16/07/93 111 - 06/07/92 112 s. 09/00 s. 09/00 -CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003103ICC CSR CSR-P CSA CCM CRTEH CE CE-P CSAE CDPFGermany 11/12/00 113 01/12/53 114 05/11/69 26/10/76 115 09/07/69 - 12/03/29 29/05/73 14/01/59 04/11/70 116Austria 28/12/00 117 01/11/54 118 05/09/73 - 01/10/69 - 19/08/27 16/07/54 07/10/63 18/04/69Belgium 28/06/00 119 22/07/53 120 08/04/69 26/05/60 - 22/06/65 23/09/27 13/12/62 13/12/62 20/05/64Denmark 21/06/01 121 04/12/52 122 29/01/68 17/01/56 123 08/09/64 124 s. 02/51 17/05/27 03/03/54 24/04/58 07/07/54 125Spain 24/10/00 126 14/08/78 127 14/08/78 12/05/97 128 15/04/69 18/06/62 12/09/27 10/11/76 21/11/67 14/01/74 129Finland 29/12/00 130 10/10/68 131 10/10/68 10/10/68 132 18/08/64 133 08/06/72 134 29/09/27 19/03/54 01/04/59 06/10/58 135France 09/06/00 136 23/06/54 137 03/02/71 08/03/60 138 s. 12/62 19/11/60 139 28/03/31 14/02/63 26/05/64 140 22/04/57Greece 15/05/02 05/04/60 141 07/08/68 04/11/75 s. 01/63 - 04/07/30 12/12/55 13/12/72 29/12/53Ireland 11/04/02 29/11/56 142 06/11/68 17/12/62 143 - - 18/07/30 31/08/61 18/09/61 14/11/68 144Italy 26/07/99 15/11/54 145 26/01/72 03/12/62 146 s. 12/63 18/01/80 25/08/28 04/02/54 12/02/58 147 06/03/68 148Luxembg 08/09/00 23/07/53 149 22/04/71 150 27/06/60 - 05/10/83 - - 01/05/67 01/11/76Netherlands 17/07/01 03/05/56 151 29/11/68 152 12/04/62 153 02/07/65 154 - 07/01/28 07/07/55 155 03/12/57 156 30/07/71Portugal 05/02/02 157 22/12/60 158 13/07/76 159 - - 30/09/92 04/10/27 - 10/08/59 -UK 04/10/01 160 11/03/54 161 04/09/68 162 16/04/59 163 09/07/70 164 - 18/06/27 07/12/53 30/04/57 165 24/02/67 166Sweden 28/06/01 167 26/10/54 168 04/10/67 02/04/65 169 16/06/64 170 - 17/12/27 17/08/54 28/10/59 31/03/54Cyprus 07/03/02 171 16/05/63 172 09/07/68 - 30/07/02 05/10/83 21/04/86 173 - 11/05/62 12/11/68Estonia 30/01/02 174 10/04/97 175 10/04/97 - - - 16/05/29 - - -Hungary 30/11/01 176 14/03/89 177 14/03/89 21/11/01 178 05/11/75 179 29/09/55 17/02/33 26/02/56 26/02/58 20/01/55Latvia 28/06/02 180 31/07/97 181 31/07/97 182 05/11/99 183 - 14/04/92 09/07/27 - 14/04/92 14/04/92Lithuania 12/05/03 184 28/04/97 185 28/04/97 07/02/00 - - - - - -Malta 29/11/02 186 17/06/71 187 15/09/71 188 - - - 03/01/66 189 - 03/01/66 09/07/68 190Poland 12/11/01 191 27/09/91 192 27/09/91 - 08/01/65 02/06/52 17/09/30 - 10/01/63 11/08/54 193Czech R. s. 04/99 11/05/93 194 11/05/93 - 22/02/93 30/12/93 22/02/93 - 22/02/93 22/02/93Slovakia 11/04/02 195 04/02/93 196 04/02/93 03/04/00 197 28/05/93 28/05/93 28/05/93 - 28/05/93 28/05/93Slovenia 31/12/01 06/07/92 198 06/07/92 06/07/92 - 06/07/92 - - 06/07/92 06/07/92CFR-CDF.Conclusions.2003.en

ANNEXE 2International Labor OrganizationStatus <strong>of</strong> Ratifications <strong>of</strong> the Fundamental Conventions(Status as <strong>of</strong> 15/02/2004)- Convention (n°29) concerning Forced or Compulsory Labour, 28 th June 1930- Convention (n°87) concerning Freedom <strong>of</strong> Association and Protection <strong>of</strong> the Right to Organise, 9 th July 1948- Convention (n°98) concerning the Application <strong>of</strong> the Principles <strong>of</strong> the Right to Organise and to Bargain Collectively, 1 st July 1949- Convention (n°100) concerning Equal Remuneration for Men and Women Workers for Work <strong>of</strong> Equal Value, 29 th June 1951- Convention (n° 105) concerning the Abolition <strong>of</strong> Forced Labour, 25 th June 1957- Convention (n°111) concerning Discrimination in Respect <strong>of</strong> Employment and Occupation, 25 th June 1958- Convention (n° 122) concerning Employment Policy, 9 th July 1964- Convention (n°135) concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking, 23 rd June1971- Convention (n°138) concerning Minimum Age for Admission to Employment, 26 th June1973- Convention (n°154) concerning the Promotion <strong>of</strong> Collective Bargaining, 19 th June 1981- Convention (n°168) concerning Employment Promotion and Protection against Unemployment, 21 st June 1988- Convention (n°182) concerning the Prohibition and Immediate Action for the Elimination <strong>of</strong> the Worst Forms <strong>of</strong> Child Labour, 17 th June 1999

SYNTHESIS REPORT IN 2003105Forced Labor Freedom <strong>of</strong> Association Discrimination Child LaborC.29 C.105 C.87 C.98 C.135 C.154 C.100 C.111 C.138 199 C.182 C.122 C.168Germany 13/06/56 22/06/59 20/03/57 08/06/56 26/09/73 - 08/06/56 15/06/61 08/04/76 18/04/02 17/06/71 -Austria 07/06/60 05/03/58 18/10/50 10/11/51 06/08/73 - 29/10/53 10/01/73 18/09/00 04/12/01 27/07/72 -Belgium 20/01/44 23/01/61 23/10/51 10/12/53 - 29/03/88 23/05/52 22/03/77 19/04/88 08/05/02 08/07/69 -Denmark 11/02/32 17/01/58 13/06/51 15/08/55 06/06/78 - 22/06/60 22/06/60 13/11/97 14/08/00 17/06/70 -Spain 29/08/32 06/11/67 20/04/77 20/04/77 21/12/72 11/09/85 06/11/67 06/11/67 16/05/77 02/04/01 28/12/70 -Finland 13/01/36 27/05/60 20/01/50 22/12/51 13/01/76 09/02/83 14/01/63 23/04/70 13/01/76 17/01/00 23/09/68 19/12/90France 24/06/37 18/12/69 28/06/51 26/10/51 30/06/72 - 10/03/53 28/05/81 13/07/90 11/09/01 05/08/71 -Greece 13/06/52 30/03/62 30/03/62 30/03/62 27/06/88 17/09/96 06/06/75 07/05/84 14/03/86 06/11/01 07/05/84 -Ireland 02/03/31 11/06/58 04/06/55 04/06/55 - - 18/12/74 22/04/99 22/06/78 20/12/99 20/06/67 -Italy 18/06/34 15/03/68 13/05/58 13/05/58 23/06/81 - 08/06/56 12/08/63 28/07/81 07/06/00 05/05/71 -Luxembg 24/07/64 24/07/64 03/03/58 03/03/58 09/10/79 - 23/08/67 21/03/01 24/03/77 21/03/01 - -Netherlands 31/03/33 18/02/59 07/03/50 22/12/93 19/11/75 22/12/93 16/06/71 15/03/73 14/09/76 14/02/02 09/01/67 -Portugal 26/06/56 23/11/59 14/10/77 01/07/64 31/05/76 - 20/02/67 19/11/59 20/05/98 15/06/00 09/01/81 -UK 03/06/31 30/12/57 27/06/49 30/06/50 15/03/73 - 15/06/71 08/06/99 07/06/00 22/03/00 27/06/66 -Sweden 22/12/31 02/06/58 25/11/49 18/07/50 11/08/72 11/08/82 20/06/62 20/06/62 23/04/90 13/06/01 11/06/65 18/12/90Cyprus 23/09/60 23/09/60 24/05/66 24/05/66 03/01/96 16/01/89 19/11/87 02/02/68 02/10/97 27/11/00 28/07/66 -Estonia 07/02/96 07/02/96 22/03/94 22/03/94 07/02/96 - 10/05/96 - - 24/09/01 12/03/03 -Hungary 08/06/56 04/01/94 06/06/57 06/06/57 11/09/72 01/01/94 08/06/56 20/06/61 28/05/98 20/04/00 18/06/69 -Latvia - 27/01/92 27/01/92 27/01/92 27/01/92 25/07/94 27/01/92 27/01/92 - - 27/01/92 -Lithuania 26/09/94 26/09/94 26/09/94 26/09/94 26/09/94 26/09/94 26/09/94 26/09/94 22/06/98 29/09/03 - -Malta 04/01/65 04/01/65 04/01/65 04/01/65 09/06/88 - 09/06/88 01/07/68 09/06/88 15/06/01 - -Poland 30/07/58 30/07/58 25/02/57 25/02/57 09/06/77 - 25/10/54 30/05/61 22/03/78 09/08/02 24/11/66 -Czech R. 01/01/93 06/08/96 01/01/93 01/01/93 09/10/00 - 01/01/93 01/01/93 - 19/06/01 01/01/93 -Slovakia 01/01/93 29/09/97 01/01/93 01/01/93 - - 01/01/93 01/01/93 29/09/97 20/12/99 01/01/93 -Slovenia 29/05/92 24/06/97 29/05/92 29/05/92 29/5/92 - 29/05/92 29/05/92 29/05/92 08/05/01 29/05/92 -CFR-CDF.Conclusions.2003.en

ANNEXE 3Council <strong>of</strong> EuropeStatus <strong>of</strong> Ratifications <strong>of</strong> the Fundamental Conventions(Status as <strong>of</strong> 15/02/2004)- Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, 4 th November 1950 (STE005)- Protocol to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, 20 th March 1952 (STE009)- European Convention on Establishment, 13 th December 1955 (STE019)- European Social Charter, 18 th October 1961 (STE035)- Protocol n°4 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Conventionand in the first Protocol thereto, 16 th September 1963 (STE046)- Convention for the Protection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong> Personal Data, 28 th January 1981(STE108)- Protocol n°6 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms concerning the Abolition <strong>of</strong> the Death Penalty, 28 th April 1983 (STE114)- Protocol n° 7 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, 22 nd November 1984 (STE117)- European Convention for the Prevention <strong>of</strong> Torture and Inhuman or Degrading Treatment or Punishment, 26 th November 1987 (STE126)- Additional Protocol to the European Social Charter, 5 th May 1988 (STE128)- Protocol amending the European Social Charter, 21 st October 1991 (not in force) (STE142)- European Charter for Regional or Minority Languages, 5 th November 1992 (STE148)- Framework Convention for the Protection <strong>of</strong> National Minorities, 1 st February 1995 (STE157)- Additional Protocol to the European Social Charter Providing for a System <strong>of</strong> Collective Complaints, 9 th November 1995 (STE158)- European Convention on the Exercise <strong>of</strong> Children’s Rights, 25 th January 1996 (STE160)- Revised European Social Charter, 3 rd May 1996 (STE163)- Convention for the Protection <strong>of</strong> Human Rights and Dignity <strong>of</strong> the Human Being with regard to the Application <strong>of</strong> Biology and Medicine : Convention on Human Rights and Biomedicine,4 th April 1997 (STE164)- Additional Protocol to the Convention for the Protection <strong>of</strong> Human Rights and Dignity <strong>of</strong> the Human Being with regard to the Application <strong>of</strong> Biology and Medicine, on the Prohibition <strong>of</strong>Cloning Human Beings, 12 th January 1998 (STE168)- Protocole n° 12 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, 4 th November 2000 (not in force)(STE177)- Additional Protocol to the Convention for the Protection <strong>of</strong> Individuals with regard to Automatic Processing <strong>of</strong> Personnel Data, regarding supervisory authorities and transborder dataflows, 8 th Novembre 2001 (not in force) (STE181)- Convention on Cybercrime, 23 rd November 2001 (not in force)(STE185)- Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation <strong>of</strong> Organs and Tissues <strong>of</strong> Human Origin, 24 th January 2002 (not in force)(STE186)- Protocol n°13 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, concerning the Abolition <strong>of</strong> th Death Penalty in All Circumstances, 3 rd May 2002(STE187)- Additional Protocol to the Convention on Cybercrime, concerning the criminalisation <strong>of</strong> acts <strong>of</strong> a racist and xenophobic nature committed through computer systems, 28 th January 2003 (notin force) (STE189)

SYNTHESIS REPORT IN 2003107STE005 STE009 STE019 STE035 STE046 STE108 STE114 STE117 STE126 STE128 STE142 STE148 STE157Germany 05/12/52 200 13/02/57 201 23/02/65 202 27/01/65 203 01/06/68 204 19/06/85 205 05/07/89 206 s. 03/85 207 21/02/90 208 s. 05/88 - 16/09/98 209 10/09/97 210Austria 03/09/58 211 03/09/58 212 s. 12/57 29/10/69 213 18/09/69 214 30/03/88 215 05/01/84 14/05/86 216 06/01/89 s. 12/90 13/07/95 217 28/06/01 218 31/03/98 219Belgium 14/06/55 14/06/55 12/01/62 220 16/10/90 221 21/09/70 28/05/93 222 10/12/98 - 23/07/91 23/06/03 223 21/09/00 - s. 07/01 224Denmark 13/04/53 13/04/53 09/03/61 03/03/65 225 30/09/64 23/10/89 226 01/12/83 18/08/88 227 02/05/89 27/08/96 228 - 08/09/00 229 22/09/97 230Spain 04/10/79 231 27/11/90 232 - 06/05/80 233 s. 02/78 31/01/84 234 14/01/85 s.11/84 02/05/89 24/01/00 24/01/00 09/04/01 235 01/09/95Finland 10/05/90 236 10/05/90 - 29/04/91 237 10/05/90 02/12/91 238 10/05/90 10/05/90 20/12/90 29/04/91 239 18/08/94 09/11/94 240 03/10/97France 03/05/74 241 03/05/74 242 s. 12/55 09/03/73 243 03/05/74 244 24/03/83 245 17/02/86 17/02/86 246 09/01/89 s. 06/89 247 24/05/95 s. 05/99 248 -Greece 28/11/74 28/11/74 249 02/03/65 250 06/06/84 251 - 11/08/95 08/09/98 29/10/87 02/08/91 18/06/98 12/09/96 - s. 09/97Ireland 25/02/53 252 25/02/53 253 01/09/66 254 07/10/64 255 29/10/68 256 25/04/90 257 24/06/94 03/08/01 14/03/88 - 14/05/97 - 07/05/99Italy 26/10/55 26/10/55 31/10/63 22/10/65 258 27/05/82 259 29/03/97 260 29/12/88 07/11/91 261 29/12/88 262 26/05/94 263 27/01/95 s. 06/00 03/11/97Luxembg 03/09/53 03/09/53 264 06/03/69 265 10/10/91 266 02/05/68 10/02/88 267 19/02/85 19/04/89 268 06/09/88 s. 05/88 s. 10/91 s. 11/92 s. 07/95 269Netherlands 31/08/54 270 31/08/54 271 21/05/69 272 22/04/80 273 23/06/82 274 24/08/93 275 25/04/86 276 s. 11/84 277 12/10/88 278 05/08/92 279 01/06/93 280 02/05/96 281 s. 02/95Portugal 09/11/78 282 09/11/78 283 - 30/09/91 284 09/11/78 02/09/93 285 02/10/86 s. 11/84 29/03/90 - 08/03/93 - 07/05/02UK 08/03/51 286 03/11/52 287 14/10/69 288 11/07/62 289 s. 09/63 26/08/87 290 20/05/99 291 - 24/06/88 292 - s. 10/91 27/03/01 293 15/01/98Sweden 04/02/52 22/06/53 294 24/06/71 295 17/12/62 296 13/06/64 29/09/82 297 09/02/84 08/11/85 298 21/06/88 05/05/89 18/03/92 09/02/00 299 09/02/00 300Cyprus 06/10/62 06/10/62 - 07/03/68 301 03/10/89 302 21/02/02 303 19/01/00 15/09/00 03/04/89 s. 05/88 01/06/93 26/08/02 304 04/06/96Estonia 16/04/96 305 16/04/96 306 - - 16/04/96 14/11/01 307 17/04/98 16/04/96 06/11/96 - - - 06/01/97 308Hungary 05/11/92 05/11/92 - 08/07/99 309 05/11/92 08/10/97 310 05/11/92 05/11/92 04/11/93 - 04/02/04 26/04/95 311 25/09/95Latvia 27/06/97 27/06/97 312 - 31/01/02 313 27/06/97 30/05/01 314 07/05/99 27/06/97 10/02/98 s. 05/97 09/12/03 - s. 05/95Lithuania 20/06/95 315 24/05/96 - - 20/06/95 01/06/01 316 08/07/99 20/06/95 26/11/98 - - - 23/03/00Malta 23/01/67 317 23/01/67 318 - 04/10/88 319 05/06/02 28/02/03 320 26/03/91 15/01/03 07/03/88 - 16/02/94 s. 11/92 10/02/98 321Poland 19/01/93 10/10/94 - 25/06/97 322 10/10/94 23/05/02 30/10/00 04/12/02 10/10/94 - 25/06/97 s. 05/03 20/12/00 323Czech R. 18/03/92 324 18/03/92 - 03/11/99 325 18/03/92 09/07/01 326 18/03/92 18/03/92 07/09/95 17/11/99 327 17/11/99 s.11/00 18/12/97Slovakia 18/03/92 328 18/03/92 - 22/06/98 329 18/03/92 13/09/00 330 18/03/92 18/03/92 11/05/94 22/06/98 22/06/98 05/09/01 331 14/09/95Slovenia 28/06/94 28/06/94 - s. 10/97 28/06/94 27/05/94 332 28/06/94 28/06/94 02/02/94 s. 10/97 s. 10/97 04/10/00 333 25/03/98 334CFR-CDF.Conclusions.2003.en

108EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTSSTE158 STE160 STE163 STE164 STE168 STE177 STE181 STE185 STE186 STE187 STE189Germany - 10/04/02 335 - - - s. 11/00 12/03/03 336 s. 11/01 - s. 05/02 s. 01/03Austria s. 05/99 s. 07/99 s. 05/99 - - s. 11/00 s. 11/01 s. 11/01 - 12/1/04 s. 01/03Belgium 23/06/03 - s. 05/96 - - s. 11/00 s. 04/02 s. 11/01 - 23/06/03 s. 01/03Denmark s. 11/95 - s. 05/96 337 10/08/99 338 s. 01/98 - s. 11/01 s. 04/03 - 28/11/02 339 s. 02/04Spain - s. 12/97 s. 10/00 01/09/99 24/01/00 - - s. 11/01 - s. 05/02 -Finland 17/07/98 340 s. 01/96 21/06/02 341 s. 04/97 s. 01/98 s. 11/00 s. 11/01 s. 11/01 - s. 05/02 s. 01/03France 07/05/99 s. 06/96 07/05/99 s. 04/97 s. 01/98 - s. 11/01 s. 11/01 - s. 05/02 s. 01/03Greece 18/06/98 11/09/97 342 s. 05/96 06/10/98 22/12/98 s. 11/00 s. 11/01 s. 11/01 s. 01/02 s. 05/02 s. 01/03Ireland 04/11/00 s. 01/96 04/11/00 343 - - s. 11/00 s. 11/01 s. 02/02 - s. 05/02 -Italy 03/11/97 04/07/03 344 05/07/99 345 s. 04/97 s. 01/98 s. 11/00 s. 11/01 s. 11/01 s. 02/02 s. 05/02 -Luxembg - s. 01/96 s. 02/98 s. 04/97 s. 01/98 s. 11/00 - s. 28/01 s. 01/02 s. 05/02 s. 01/03Netherlands s. 01/04 - s.01/04 s. 04/97 s. 05/98 346 s. 11/00 s. 05/03 s. 11/01 s. 02/02 s. 05/02 s. 01/03Portugal 20/03/98 s. 03/97 30/05/02 347 13/08/01 13/08/01 s. 11/00 s. 11/01 s. 11/01 s. 02/02 03/10/03 s. 03/03UK - - s. 11/97 - - - s. 11/01 s. 11/01 - 10/10/03 348 -Sweden 29/05/98 s. 01/96 29/05/98 349 s. 04/97 s. 01/98 - 08/11/01 s. 11/01 - 22/04/03 s. 01/03Cyprus 06/08/96 s. 09/02 27/09/00 350 20/03/02 20/03/02 30/04/02 s. 10/02 s. 11/01 - 12/03/03 -Estonia - - 11/09/00 351 08/02/02 08/02/02 s. 11/00 - 12/05/03 352 17/09/03 s. 05/02 s. 01/03Hungary - - - 09/01/02 09/01/02 s. 11/00 - 04/12/03 353 - 16/07/03 -Latvia - 30/05/01 354 - s. 04/97 s. 01/98 s. 11/00 - - - s. 05/02 -Lithuania - - 29/06/01 355 17/10/02 17/10/02 - s. 11/01 23/06/03 - 29/1/04 -Malta - s. 01/99 - - - - - s. 01/02 - 03/05/02 s. 01/03Poland - 28/11/97 356 - s. 05/99 s. 05/99 - s. 11/02 s. 11/01 - s. 05/02 s. 07/03Czech R. s. 02/02 07/03/01 357 s. 11/00 22/06/01 22/06/01 s. 11/00 24/09/03 - - s. 05/02 -Slovakia s. 11/99 s. 06/98 s. 11/99 15/01/98 22/10/98 s. 11/00 24/07/02 - - s. 07/02 -Slovenia s. 10/97 28/03/00 358 07/05/99 359 05/11/98 05/11/98 s. 03/01 - s. 07/02 s. 01/02 04/12/03 -CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 20031091 Reservations : art. 2(1), 14(3)(d), 14(5), 15(1), 19, 21 and 22 ; Declaration : art. 412 Reservation : art. 5(2)(a)3 Declaration : art. 144 Reservations : §11 <strong>of</strong> the Preamble, art. 7(b)5 Reservations : art. 3, 21 and 226 Reservations : art. 18(1), 38(2), 40(2)(b)(ii) and (v)7 Reservations : art. 9, 10(3), 12(4), 14, 19, 21, 22 and 26 ; Declaration : art. 418 Reservation : art. 5(2)9 Reservations : art. 4(a), 4(b) and 4(c)10 Reservation : art. 1111 Reservations : art. 5(1)(c) and 15 ; Declarations : art. 21 and 2212 Reservations : art. 13, 15,17, 38(2), 38(3)13 Reservations : art. 2(2) and (3)14 Reservations : art. 10(2)(a), 10(3), 14(1), 14(5), 19, 20, 21, 22 and 23(2) ; Declaration : art. 4115 Reservation: art. 4 ; Declaration : art. 1416 Reservations : art.15(2) and (3)17 Reservations : art. 21 and 2218 Reservations : art. 2(1), 13, 14(1), 15 and 40(2)(b)(v)19 Reservation : art. 7(d)20 Reservations : art. 10(3), 14(1), 14(5), 14(7) and 20(1) ; Declaration : art. 4121 Reservation : art. 5(2)(a)22 Declaration : art. 1423 Declarations : art. 21 and 2224 Reservation : art. 40(2)(b)(v)25 Declaration26 Declaration : art. 4127 Reservation : art. 5(2)28 Declaration : art. 1429 General Declaration30 Declarations : art. 21 and 2231 Reservations : art. 21(d), 38(2) and 38(3)32 Reservations : art. 10(2)(b), 10(3), 14(7) and 20(1) ; Declaration : art. 4133 Declaration : art. 1434 Declarations : art. 21 and 2235 Reservations : art. 6, 8, 9, 11, 13CFR-CDF.Conclusions.2003.en

110EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS36 Reservations : art. 4(1), 9, 13, 14, 20(1), 21, 22 and 2737 Reservations : art. 1, 5(2)(a) and 738 Reservations : art. 4, 6 and 15 ; Declaration : art. 1439 Reservations : §11 <strong>of</strong> the Preamble, art. 5(b), 9, 14(2)(c), 14(2)(h), 16(1)(d), 16(1)(g) and 29(1)40 Reservation : art. 30(2) ; Declarations : art. 21 and 2241 Reservations : art. 6, 30 and 40(2)(b)(v)42 Reservation : art. 243 Declarations : 21 and 2244 Reservations : art. 2(2) and 13(2)(a)45 Reservations : art. 10(2), 14, 14(7), 19(2) and 20(1) ; Declaration : art. 4146 Reservation : art. 5(2)47 Reservations : art. 4(a), (b), (c) ; Declaration : art. 1448 Reservations : art. 13(b), 13(c), 16(1)(d) and 16(1)(f)49 Reservations : art. 9(5), 12(4), 14(3), 14(5), 15(1) and 19(3) ; Declaration : art. 4150 Reservation : art. 5(2)51 Reservations : art. 4(a), 4(b) and 6 ; Declaration : art. 1452 Declarations : art. 21 and 2253 Reservations : art. 10(3), 14(3), 14(5), 19(2) and 20 ; Declaration : art. 4154 Reservation : art. 5(2)55 Declaration : art. 1456 Reservation : art. 7 and 16(1)(g)57 Reservation : art. 1(1) ; Declarations : art. 21 and 2258 Reservation : art. 3, 6, 7 and 1559 Reservation : art. 8(1)(d)60 Reservations : art. 10(2), 10(3), 12(1), 12(2), 12(4), 14(3)(d), 14(5), 14(7), 19(2), 20(1) ; Declaration : art. 4161 Declaration : art. 1462 Reservations : § 10 and 11 <strong>of</strong> the Preamble63 Reservation : art. 1(1) ; Declarations : art. 21 and 2264 Reservations : art. 14, 22, 26, 37, 38, 4065 Declaration : art. 1466 Declarations : art. 21 and 2267 Reservations : art. 1, 2(3), 6, 7(a)(i), 9, 10(2), 13(2)(a) and 1468 Reservations : art. 1, 10(2)(a), 10(2)(b), 10(3), 11, 12(1), 12(4), 14(3)(d), 20, 23(3), 24(3) ; Declaration : art. 4169 Reservations : art. 1(1), 4(a)(b) and (c), 6, 15 and 2070 Reservations : art. 2, 4(1), 9, 11(2), 15(3) and 15(4), 16(1)(f) ; General DeclarationCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 200311171 General Declaration ; Declaration : art. 2172 Reservations : art. 22 and 37(c) ; General Declaration73 Reservation : art. 7(d)74 Reservations : art. 10(3), 14(7) and 20(1) ; Declaration : art. 4175 Reservation : art. 5(2)76 Declaration : art. 1477 Declarations : art. 21 and 2278 Reservation : art. 2(1)79 Declaration : art. 1480 Declarations : art. 21 and 2281 Reservations : art. 26(1) and 26(3)82 Reservations : art. 48(1) and 48(3) ; Declaration : art.4183 Reservations : art. 17(1) and 18(1) ; Declaration :art. 1484 Declarations : art. 21 and 2285 Reservation : art. 1386 Reservations : art. 13, 14(2), 14(6), 19, 20 and 22 ; Declaration : art. 4187 Reservations : art. 1 and 5(2)88 Reservations : art. 4 and 689 Reservations : art. 11, 13, 15 and 1690 Declarations : art. 21 and 2291 Reservations : art. 2692 Declaration : art. 4193 Reservation : art. 5(2)(a)94 Reservations : art. 17(1) and 18(1) ; Declaration : art. 1495 Reservations : art. 20 and 30(1) ; Declaration : art. 21 and 2296 Reservations : art. 7, 12 à 16, 24(2)(f) and 3897 Reservation : art. 2698 Reservation : art. 48 ; Declaration : art. 4199 Reservation : art. 17 ; Declaration : art. 14100 Declarations : art. 21 and 22101 Reservation : art. 7(1)102 Reservation : art. 3(2)103 Reservation : art. 26104 Reservation : art. 48 ; Declaration : art. 41105 Reservation : art. 17 ; Declaration : art. 14CFR-CDF.Conclusions.2003.en

112EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS106 Declarations : art. 21 and 22107 Reservation : art. 7(1)108 Declaration : art. 41109 Reservations : art. 1 and 5(2)(a)110 Declaration : art. 14111 Declarations : art. 21 and 22112 Reservation : art. 9(1)113 Reservation : art. 87114 Reservation : art. 1B115 Reservations : art. 23 and 27116 Reservation : art. III117 Reservation : art. 87(2)118 Reservations : 1B, 17 , 22, 23 and 25119 Reservations : art. 31(1)(e), 21(1)(b)(c), 87120 General declaration; Reservations : art. 1B and 15121 Reservation : art. 87122 Reservations : art. 1B and 17(1)123 Reservations : art. 24 and 31124 Reservation : art. 1(2)125 Reservation : art. 3126 Reservations : art. 87 and 103127 General declaration; Reservations : art. 1B, 8, 12 and 26128 Reservation : art. 29(1)129 Reservations : art. I, II and III130 Reservation : art. 87131 Reservations : general, art. 1B, 7(2), 8, 12(1), 24, 25 and 28(1)132 Reservations : general, art. 7(2), 8, 24(1)(b), 24(3), 25 and 28133 Reservation : art. 1(2)134 Reservation : art. 9135 Reservations : art. III136 Reservations : art. 8, 87 and 124 ; General Declaration137 Declaration : art. 29(2) and 17 ; Reservation : art. 1B138 Reservation : art. 10(2)139 General declaration140 General declarationCFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003113141 Reservations : art. 1B and 26142 Declaration : art. 32 ; Reservations : art. 1B, 17, 25 and 29(1)143 Declarations : art. 31, general ; Reservation : art. 29(1)144 Reservation : art. III145 Reservation : art. 1B146 Reservations : art. 17 and 18147 General declaration148 Declaration : art. III149 Réservations : art. 1B, general150 General Reservation151 Reservation : art. IB152 Declaration : art. VII153 Reservations : art. 8 and 26, general154 General declaration155 General declaration156 General declaration157 Declaration : art. 5(1)158 Reservation : art. 1B159 General declaration160 Reservations : art. 8 and 87161 Reservation : art. 1B162 Declaration : art. VII(4)163 Declarations : art. 36, 38 and general ; Reservations : art. 8, 9, 24(1)(b) and 25(1) and(2)164 Declarations : art. 1 and general165 Declaration general166 Reservations : art. III, general167 Reservation : art. 8 and 87168 Reservation : art. 1B169 Reservations : art. 8, 12(1), 24(1)(b), 24(3) and 25(2)170 Reservation : art. 1(2)171 Reservation : art. 87172 General Declaration ; Reservation : art. 1B173 Ratification <strong>of</strong> the Convention as amended by the Protocol174 Reservation : art. 87175 Reservations : art. 1B, 23, 24, 25 and 28(1)CFR-CDF.Conclusions.2003.en

114EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS176 Reservation : art. 87177 Reservation : art. 1B178 Reservations : art. 23, 24 and 28179 Reservation : art. 1(2)180 Reservation : art. 87181 Reservations : art. 1B, 8, 17, 24, 26 , 34 and general182 Declaration : art. VII(2)183 Reservations : art. 24(1)(b) and 27184 Declaration : art. 103(1) ; Reservation : art. 87185 Reservation : art. 1B186 Declaration : art. 20(3) ; Reservation : art. 87187 Reservation : art. 1B188 Declaration : art. VII(2)189 Ratification <strong>of</strong> the Convention as amended by the Protocol190 Reservation : art. III191 Reservation : art. 87(2)192 Reservation : art. 1B193 Reservation : art. VII194 Reservation : art. 1B195 Declaration : art. 103(1)196 Reservation : art. 1B197 Declaration : art. 27198 Reservation art. 1B199199 Minimum age specified: 15 years : Germany, Austria, Belgium, Denmark, Finland, Greece, Ireland, Italy, Luxembourg, Netherlands, Sweden, Cyprus, Poland, Slovakia,Slovenia ; 16 years : Spain, France, Portugal, United-Kingdom, Hungary, Lithuania, Malta.200 Reservation : art. 7 ; Declaration : art. 56201 Declarations : art. 1, 2 and 4202 Réserve : art 4 ; Declaration : art. 30203 Declarations : art. 6, 20 and 34204 Declaration : art. 5205 Declarations : art. 8, 12, 13, 24206 General Declarations207 Declarations : art. 2, 3, 4208 Declaration : art. 20209 Declarations : art. 2, 3, 7, 8, 9, 10, 11, 12, 13, 14CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003115210 Declaration211 Reservations : art. 5 and 6212 Reservation : art. 1213 Declaration : art. 20214 Reservation : art. 3215 Declarations : art. 2, 3, 5, 9 and 13216 Declarations : art. 2, 3, 4217 Declaration : art. 4218 Declarations : art. 2 and 3219 Declaration220 Declaration : art. 12221 Declaration : art. 20222 Declarations : art. 3, 13 and 14223 Declaration : art. 5224 Reservation225 Declarations : art. 20 and 34226 Declarations : art. 13 and 24227 Reservation : art. 2 ; Declarations : art. 2 and 6228 Declaration : art. 9229 Declarations : art. 2, 3, 4 and 15230 Declaration231 Reservation : art. 17 ; Declarations : art. 5, 6, 10 and 15232 Reservation : art. 1233 Declaration : art. 31 and 37234 Declaration : art. 13235 Declarations : art. 2, 3, 7236 Reservation : art. 6237 Declaration : art. 20238 Declaration : art. 13239 Declaration : art. 5240 Declarations : art. 2, 3, 7, 8, 9, 10, 11, 13, 14241 Reservations : art. 5, 6 and 15 ; Declarations : art. 10 and 56242 Declarations : art. 1 and 4243 Reservations : art. 2 and 13 ; Declarations : art. 12 and 20244 Declaration : art. 5CFR-CDF.Conclusions.2003.en

116EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS245 Declarations : art. 3, 9, 13246 Reservations : art. 2, 3, 4, 5, 6 ; Declaration : art. 2247 Reservation : art. 9 ; General Declaration248 Declarations : art. 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14249 Reservation : art. 2250 Declarations : art. 12 and 33251 Declaration : art. 20252 Reservation : art. 6253 Declaration : art. 2254 Reservations : art. 9 and 21 ; Declaration : art. 12255 Declaration : art. 20256 Declaration : art. 3257 Declarations : art. 3 and 13258 Declaration : art. 20259 Reservation : art. 3260 Declarations : art. 3 and 13261 Declarations : art. 2, 3, 4262 Declaration : art. 16263 General Declaration264 Reservation : art. 1265 Reservations : art. 16 and 18 ; Declarations : art. 12266 Declaration : art. 20267 Declarations : art. 3 and 13268 Reservation : art. 5269 Declaration270 Declaration : art. 56271 Declarations : art. 2 and 4272 Declaration générale273 Declarations : art. 20 and 34274 Declarations : art. 3 and 5275 Declarations : art. 3, 13 and 24276 Declarations: générale , art. 2277 Declaration : art. 2278 Declaration : art. 20279 Declarations : art. 9CFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003117280 General Declaration281 Declarations : general, art. 2 3, 7, 8, 9, 10, 11, 12, 13, 14282 Reservations : art. 5 and 7283 Reservations : art. 1 and 2284 Declarations : art. 6 and 20285 Declaration : art. 13286 Declarations : art. 5 and 6287 Reservations : art. 2 and 4 ; General Declarations and art. 1288 Reservations : art. 9, 15 and 21289 Declarations : art. 20, 34 and 37290 Declarations : art. 3, 13 and 24291 Declaration générale292 Declarations : art. 20293 Declarations : art. 1, 2, 3294 Reservation : art. 2295 Reservations : art. 3, 11 and 23 ; Declaration : 12296 Declaration : art. 20297 Declaration : art. 13298 Declaration : art. 1299 Declarations : art. 2, 8, 9, 10, 11, 12, 13, 14300 Declaration301 Declarations : art. 2, 7, 20, 37302 Declaration : art. 4303 Declaration : art. 13304 Declarations : art. 1 and 7305 Reservation : art. 6306 Reservation and Declaration : art. 1307 Declarations : art. 3 and 13308 Declaration309 Declaration : art. 20310 Declarations : art. 3 and 13311 Declarations : art. 2, 3, 8, 9, 10, 11, 12, 13312 Reservation : art. 1313 Declaration : art. 20314 Declarations : art. 3 and 13CFR-CDF.Conclusions.2003.en

118EU NETWORK OF INDEPENDANT EXPERTS ON FUNDAMENTAL RIGHTS315 Reservation : art. 5316 Declaration : art. 13317 Reservation : art. 10 ; Declaration : art. 6318 Declaration : art. 2319 Declaration : art. 20320 Declarations : art. 3, 8 and 13321 Reservation : art. 15 ; Declarations : art. 24 and 25322 Declaration : art. 20323 General Declarations and art. 18324 Reservations : art. 5 and 6325 Declaration : art. 20326 Declaration : art. 13327 Declaration : art. 5328 Reservations : art. 5 and 6329 Declaration : art. 20330 Declaration : art. 13331 Declarations : general, art. 1, 2, 3, 8, 10, 12, 13332 Declaration : art. 13333 Declarations : art. 2 and 7334 Declaration335 Declaration : art. 1336 Declaration : art. 1337 Declaration : art. A338 Reservation : art. 10§2 ; Declarations : art. 20§2ii and 35339 Declaration : art. 4340 Declaration : art. 2341 Declaration : art. A342 Declaration : art. 1343 Declaration : art. A344 Declaration : art. 1345 Declaration : art. A346 Declaration : art. 1347 Reservations : art. 2§6 and 6348 Declaration : art. 4349 Declaration : art. ACFR-CDF.Conclusions.2003.en

SYNTHESIS REPORT IN 2003119350 Declaration : art. A351 Declaration : art. A352 Declaration : art. 24, 27 and 35353 Declaration : art. 27 ; Reservation : Art. 9354 Declaration : art. 1355 Declaration : art. A356 Declaration : art. 1357 Declaration : art. 1358 Declaration : art. 1359 Declaration : art. ACFR-CDF.Conclusions.2003.en

European CommissionVolume I – Fundamental Right SeriesLuxembourg: Office for Official Publications <strong>of</strong> the European Communities2004 — 292 pp. — 21 x 29.7 cmISBN 92-894-7894-2SALES AND SUBSCRIPTIONSPublications for sale produced by the Office for Official Publications <strong>of</strong> the EuropeanCommunities are available from our sales agents throughout the world.How do I set about obtaining a publication?Once you have obtained the list <strong>of</strong> sales agents, contact the sales agent <strong>of</strong> your choice andplace your order.How do I obtain the list <strong>of</strong> sales agents?Go to the Publications Office website http://publications.<strong>eu</strong>.int/ Or apply for a paper copy by fax (352) 2929 42758