Fra Opinion 04 2018 - Charter Implementation

FRA Opinion – 4/2018
[Charter of Fundamental Rights]
Vienna, 24 September 2018
Challenges and opportunities

for the implementation of the Charter of
Fundamental Rights
Opinion of the
European Union Agency for Fundamental Rights
Contents
Acronyms.............................................................................................................................................3
Opinions ...............................................................................................................................................6
Introduction ...................................................................................................................................... 11
1. EU level: implementation of the Charter by the EU, especially its agencies................... 12
1.1. EU legislative process..................................................................................................................................12
FRA Opinion 1: Involving independent external expert advice at EU level ..............................................14
1.2. Agencies and fundamental rights............................................................................................................14
1.3. Agencies: internal and external protection mechanisms and policies..........................................18
1.4. Agencies and fundamental rights: the way forward .........................................................................22
FRA Opinion 2: The Charter’s relevance for EU agencies ...............................................................................33
2. National level: implementation of the Charter in national policies, legislative
processes and case law .......................................................................................................... 35
2.1. The Charter and governments: lack of policies promoting the Charter and need for more
pro-active stance .........................................................................................................................................36
FRA Opinion 3: Policies promoting the Charter’s use at national level ......................................................38
2.2. The Charter and the legislature: impact assessments, legal scrutiny and the potential of
a fully-fledged ‘Article 51 screening’ .....................................................................................................39
FRA Opinion 4: The Charter and legislative processes in EU Member States...........................................42
2.3. The Charter and the judiciary: some cases clearly show the Charter’s potential ......................43
FRA Opinion 5: The Charter and its use before national courts....................................................................46
3. Cooperation between the EU and national levels: existing channels and
ways forward ........................................................................................................................... 48
3.1. Existing tools: cooperation between JHA agencies and EU Member States ...............................48
FRA Opinion 6: EU agencies’ potential to assist EU Member States ...........................................................50
3.2. Existing tools: judicial dialogue with the CJEU ......................................................................................50
3.3. Recent proposals: cooperation in the context of EU funds ..............................................................55
FRA Opinion 7: A new Charter-conditionality for EU funds ...........................................................................60
3.4. How the EU could better assist EU Member States: views from the consultation....................61
3.5. Exchanges between EU Member States: a way forward .................................................................63
FRA Opinion 8: Regular exchange among EU Member States .....................................................................64
Annex 1: Selected FRA activities in the context of the Charter ............................................... 65
Annex 2: Agencies (and other bodies) covered by the consultation ...................................... 67
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Acronyms
ACER Agency for the Cooperation of Energy Regulators
BBI JU Bio-based Industries Joint Undertaking
CDT Translation Centre for the Bodies of the European Union
CEDEFOP European Centre for the Development of Vocational Training
CEPOL European Union Agency for Law Enforcement Training
CHAFEA Consumers, Health, Agriculture and Food Executive Agency
Court of Justice of the European Union (CJEU is also used for the
CJEU time predating the entry into force of the Lisbon Treaty in
December 2009)
CPVO Community Plant Variety Office
CS2JU Clean Sky 2 Joint Undertaking
EACEA Education, Culture and Audiovisual Executive Agency
EASA European Aviation Safety Agency
EASME Executive Agency for Small and Medium-sized Enterprises
EBA European Banking Authority
ECDC European Centre for Disease Prevention and Control
ECHA European Chemicals Agency
ECHR European Convention on Human Rights
Electronic Components and Systems for European Leadership
ECSEL JU
Joint Undertaking
ECtHR European Court of Human Rights
EEA European Economic Area
EFCA European Fisheries Control Agency
EFSA European Food Safety Authority
EIGE European Institute for Gender Equality
EIOPA European Insurance and Occupational Pensions Authority
EIT European Institute of Innovation and Technology
EMA European Medicines Agency
EMCDDA European Monitoring Centre for Drugs and Drug Addiction
EMSA European Maritime Safety Agency
ENISA European Union Agency for Network and Information Security
ERA European Railway Agency
ERCEA European Research Council Executive Agency
ESA Euratom Supply Agency
ESMA European Securities and Markets Authority
ETF European Training Foundation
EU European Union
European Agency for the Operational Management of Large-
EU-LISA
Scale IT Systems in the Area of Freedom, Security and Justice
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EU OSHA European Agency for Safety and Health at Work
EUIPO European Union Intellectual Property Office
EUMS EU Member States
European Foundation for the Improvement of Living and
EUROFOUND
Working Conditions
EUROJUST European Union's Judicial Cooperation Unit
EUROPOL European Union Agency for Law Enforcement Cooperation
F4E Fusion for Energy
FRA European Union Agency for Fundamental Rights
Frontex European Border and Coast Guard Agency
GSA European Global Navigation Satellite Systems Agency
INEA Innovation and Networks Executive Agency
NGO Non-governmental organisation
REA Research Executive Agency
SatCen European Union Satellite Centre
SESAR JU Single European Sky ATM Research Joint Undertaking
SRB Single Resolution Board
TFEU Treaty on the Functioning of the EU
The Charter EU Charter of Fundamental Rights
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THE EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS (FRA),
Bearing in mind the Treaty on European Union (TEU), in particular Article 6 thereof,
Recalling the obligations set out in the Charter of Fundamental Rights of the European
Union (the Charter),
In accordance with Council Regulation 168/2007 of 15 February 2007 establishing a

European Union Agency for Fundamental Rights (FRA), in particular Article 2 with the
objective of FRA “to provide the relevant institutions, bodies, offices and agencies of the
Community and its EU Member States when implementing Community law with
assistance and expertise relating to fundamental rights in order to support them when
they take measures or formulate courses of action within their respective spheres of
competence to fully respect fundamental rights”,
Having regard to Article 4 (1) (d) of Council Regulation 168/2007, with the task of FRA
to “formulate and publish conclusions and opinions on specific thematic topics, for the
Union institutions and the EU Member States when implementing Community law, either
on its own initiative or at the request of the European Parliament, the Council or the
Commission”,
Having regard to Recital (13) of Council Regulation 168/2007, according to which “the
institutions should be able to request opinions on their legislative proposals or positions
taken in the course of legislative procedures as far as their compatibility with fundamental
rights are concerned”,
Having regard to the request of the European Parliament of 26 April 2018 to FRA for an
opinion to contribute to the preparation of the European Parliament Report on
“Implementation of the Charter of Fundamental Rights of the European Union in the EU
institutional Framework” (2017/2089(INI)),
SUBMITS THE FOLLOWING OPINION
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Opinions
FRA Opinion 1: Involving independent external expert advice at EU level
During the past decade, the EU institutions have developed various procedures and
mechanisms to help guarantee that EU law and policies respect the rights laid down in
the Charter. But these are mainly internal procedures carried out by the services of the
respective EU legislators – mainly the European Commission but potentially also the
European Parliament and the Council of the European Union. Independent external
expertise is regularly requested only with regard to processing personal data, via the
European Data Protection Supervisor. FRA is currently not regularly consulted on
legislative drafts that raise potential issues across the wide spectrum of rights covered
in the Charter.
The EU institutions should provide for enhanced forms of consultation, impact
assessments and legal scrutiny, including by requesting advice from appropriate
independent expert bodies, such as FRA, whenever a legislative file potentially
promotes or negatively affects fundamental rights. More regular consultation could
be provided for in a revised version of the inter-institutional agreement on better
lawmaking. Charter focal points within the EU institutions – or their legal services –
could help guarantee that fundamental rights-sensitive files receive the attention
and scrutiny they deserve. This will help ensure Charter-compliant and thus
sustainable EU legislation that avoids fundamental rights issues during
implementation at national level and the risk of annulment by the Court of Justice of
the European Union.
FRA Opinion 2: The Charter’s relevance for EU agencies
All EU agencies are bound by the Charter of Fundamental Rights. FRA consulted all
agencies; this revealed that the majority view their mandates as having some
relevance to the implementation of the Charter. The agencies provided a rich spectrum
of examples in this regard. However, their founding documents – many adopted before
the Charter entered into force – hardly refer to the Charter or to fundamental rights
more generally. Only very few contain specific fundamental rights-protection
mechanisms. Moreover, when consulted on various concrete proposals to increase the
Charter’s presence in their internal and external work, the agencies’ comments partly
conveyed a certain skepticism The proposals ranged from soft forms of cooperation to
more operational proposals, such as establishing focal points. At the same time, some
of the proposals were very well received by the agencies – such as the proposal to
expand available training on fundamental rights.
As a reminder of agencies and other bodies’ legal obligations under the Charter, the
EU legislator should insert a reference to fundamental rights whenever drafting or
revising regulations or decisions setting up such agencies or bodies. Such an explicit
reference in the agencies’ founding documents would increase awareness of the
Charter and of the agencies’ means to promote Charter rights within their respective
mandates. In addition, the EU legislator should carefully consider introducing, on a
case-by-case basis, more operational mechanisms for the protection and promotion
of fundamental rights – such as Charter focal points and fundamental rights officers.
The EU agencies should regularly exchange experiences and practices with regard to
implementing the Charter, including in the various agencies’ networks. Such
exchanges should concretely assess the possibility of taking steps to further the
protection and promotion of fundamental rights within and outside of the agencies.
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Steps to consider include increasing fundamental rights-related training,
collaborating with other agencies and stakeholders on fundamental rights and
adopting relevant policy documents and mechanisms.
FRA Opinion 3: Policies promoting the Charter’s use at national level

FRA’s consultations made clear that there is a lack of national policies that promote
awareness and implementation of the Charter. The instrument entered into force only
nine years ago, but EU Member States are obliged to both respect the Charter’s rights
and to “promote the application thereof in accordance with their respective powers”
(Article 51 of the Charter). Legal practitioners – especially those in national
administrations, the judiciary and national parliaments – have a central role to play in
the Charter’s implementation. It is vital for them to be fully aware of the Charter’s
potential to effectively fulfill that role. At the same time, there is a need to increase
awareness among rights holders so that rights are invoked and implemented in
practice.
EU Member States should ensure that targeted training modules are offered for
national judges and other legal practitioners on a regular basis and in a manner that
meets demands and guarantees sufficient ownership.
Member States should aim to regularly assess the Charter’s actual use in national
case law and legislative and regulatory procedures, with a view to identifying
shortcomings and concrete needs for better implementation of the Charter at
national level.
Member States should launch initiatives and policies aimed at promoting awareness
and implementation of the Charter at national level, so that the Charter can play a
relevant role wherever it applies. Such initiatives and policies should be evidence-
based, building on regular assessments of the use and awareness of the Charter in
the national landscape.
FRA Opinion 4: The Charter and legislative processes in EU Member States

Article 51 (field of application) of the EU Charter of Fundamental Rights provides that
all national law implementing EU law has to conform with the Charter. Although a
significant proportion of national bills contains elements falling within the scope of EU
law, the available evidence suggests that the Charter is used neither frequently nor in
detail in legislative impact assessments and legal scrutiny of bills. Reference is often
made to national and international law, but not to the Charter. Adding the ‘Charter
perspective’ allows detecting, at an early stage, both possible limitations of Charter
rights and the draft legislation’s potential to promote Charter rights and principles.
EU Member States should review their national procedural rules on legal scrutiny and
impact assessments of bills from the perspective of the EU Charter of Fundamental
Rights. Such procedures should explicitly refer to the Charter, just like they do to
national human rights instruments, to minimise the risk that the Charter is
overlooked.
Member States should consider a more consistent ‘Article 51 screening’ in the
legislative process to assess at an early stage:
 whether or not a legislative file (partly) falls within the scope of EU law
and thus also the Charter;
 whether the legislative proposal could potentially limit Charter rights;
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 whether such limitations are in line with Article 52(2) of the Charter;
 whether the legislative proposal has the potential to proactively
promote the application of Charter rights and principles.
Standardised handbooks outlining practical steps to take to check whether the
Charter applies – which so far exist only in very few EU Member States – would be
useful tools for legal practitioners. FRA’s forthcoming Handbook on the applicability
of the Charter will serve as a model for such tools.
FRA Opinion 5: The Charter and its use before national courts
FRA regularly collects relevant decisions by judges. They paint a mixed picture of the
Charter’s use at national level. The number of judicial decisions in which courts refer
to the Charter in detail and/or where a reference to the Charter has an impact on a
case’s outcome appears low. At the same time, national case law shows that the
Charter is relevant both for individual rights holders and for the development of the
legal systems. For case law to more consistently use the Charter’s potential,
awareness of the Charter needs to be increased amongst judges. In addition, courts
need to exchange relevant practical experiences – both within states and across
national borders. Courts can consult references to case law collected in Charterpedia
and communicate relevant judgments directly to FRA at charter@fra.europa.eu.
The EU and its Member States should encourage greater information exchange on
experiences with and approaches to referencing and using the Charter. This
exchange should take place both between judges of different courts within a given
Member State and between judges of comparable courts across Member States. In
encouraging this information exchange, EU Member States should make best use of
existing judicial networks and EU funding opportunities. Courts, equality bodies and
other National Human Rights Bodies could consider communicating their use of the
Charter on their websites, and national courts could insert Charter-related search
fields in their case law databases to allow for better access to Charter-relevant case
law..
FRA Opinion 6: EU agencies’ potential to assist EU Member States

Based on their mandates, EU agencies carry out countless fundamental rights-relevant
activities in diverse contexts. This includes offering expertise, advice and practical
support to EU Member States, such as through training activities, handbooks and
practical tools. There is potential to increase such cooperation by better mapping
existing practices and unmet needs at Member State-level.
EU agencies should exchange their practices and experiences, including in the
relevant agencies’ networks, on how to best assist EU Member States in
implementing the Charter. Member States in turn could annually exchange
experiences and express needs with regard to assistance from EU agencies in the
Council’s Working Party on Fundamental Rights, Citizen's Rights and Free Movement
of Persons (FREMP).
FRA Opinion 7: A new Charter-conditionality for EUfunds

The provision of EU funds for the training of legal practitioners is key. However,
currently provided training is dedicated to fundamental rights only to a minor degree.
EU programmes that are earmarked for fundamental rights-related projects form
another important contribution – but have a limited financial dimension. EU Funds,
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however, have remarkable practical impact. The large EU Funds – like the European
Regional Development Fund (ERDF), the European Social Fund Plus (ESF), the Asylum
and Migration Fund (AMF), and others – represent a substantial portion of the EU’s
overall budget. Significantly, the European Commission has proposed a new form of
conditionality for these funds. This would not just cover a few selected dimensions of
the Charter, as has been the case so car. Instead, the full spectrum of Charter rights
would need to be applied throughout the full project cycle of the activities using
resources provided by the EU Funds. The potential practical implications of this
revamped conditionality are considerable – if the obligation is coherently referred to
in the relevant legal texts and comes with effective monitoring mechanisms at the
national level.
The EU legislator should adopt the new enabling condition covering the effective
application and implementation of the EU Charter of Fundamental Rights, as laid
down in the Common Procedure Regulation proposed by the European Commission
for the next Multiannual Financial Framework 2021-2027. The legislator should
enhance the visibility of this new conditionality by introducing strong and consistent
fundamental rights clauses in the operational text of the draft regulations
establishing the large EU Funds.
When implementing the financial instruments, EU institutions should put special
emphasis on the horizontal conditionalities related to fundamental rights and make
sure that the respect for the Charter provisions and the promotion of their application
is mainstreamed in all activities.
EU Member States should engage in a dialogue with Equality Bodies and National
Human Rights Institutions, including Ombuds Institutions, to explore their effective
participation in the preparation phase and the monitoring process of the
implementation of EU-funded programmes. Allocating human resources and
adequate funding to them, and earmarking EU resources for that purpose, will bolster
the efficiency of the new Charter conditionality. Where Member States and
competent national authorities consider it useful, the European Commission, with the
support of agencies such as FRA, could provide technical assistance and training to
Equality Bodies and National Human Rights Institutions, including Ombuds
Institutions, on how to monitor effectively the EU Charter of Fundamental Rights and
the United Nations Convention on the Rights of Persons with Disabilities with regard
to the implementation of the EU Funds.
FRA Opinion 8: Regular exchange among EU Member States

No institutional space and practice within the EU system is currently specifically
dedicated to in-depth exchanges of Member States’ experiences with implementing
the Charter. The Working Party on Fundamental Rights, Citizen's Rights and Free
Movement of Persons (FREMP) is the Council’s working group responsible for
fundamental rights-related issues, including the Charter. It brings together relevant
civil servants in this regard. The working group appears to provide an appropriate
platform for all three branches of government to exchange experiences with Charter
implementation in order to learn from promising practices and address shortcomings.
The EU and its Member States should consider establishing an annual ‘Charter
exchange’ in the Council’s “Working Party on Fundamental Rights, Citizen's Rights
and Free Movement of Persons” (FREMP). Based on relevant information regarding
local, regional and national practices and experiences concerning the
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implementation of the Charter, such an exchange could help promote a common
understanding of the Charter’s practical application and its needs. Such an annual
Charter exchange in FREMP should also allow for relevant participation by the
European Commission and the European Parliament so that the results can also feed
into the work of these institutions. The Charter exchange could be prepared by an
expert seminar and/or a structured process collecting the relevant data, evidence
and promising practices.
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Introduction
The President of the European Parliament requested the European Union Agency for
Fundamental Rights (FRA), by letter of 26 April 2018, to analyse the role and relevance
of the EU, “especially the EU agencies, as far as the implementation of the provisions
of the Charter by the EU Member States in their legislation, case law and policies is
concerned”.
The Parliament is in the process of drafting an own-initiative report on the
“Implementation of the Charter of Fundamental Rights of the European Union in the
EU institutional framework”, being prepared in the Parliament’s Committee for
Constitutional Affairs (AFCO).1 With this Opinion, FRA aims to contribute to the
European Parliament’s report. The request aims at understanding the interaction
between the Charter’s implementation at national and EU level, and whether there are
“instruments, mechanisms and practices” available at EU level to assist Member States
to better implement the Charter.
Against this background, this FRA Opinion provides evidence and analysis on the
following questions:
 Is the EU putting sufficient emphasis on the Charter, and how could it extend
this emphasis? This Opinion focuses on EU agencies; a different study
commissioned by AFCO dealt with EU institutions. See Section 1.
 Is the Charter used within the three branches of national government, namely
government policies, national legislation and national courts? See Section 2.
 How is the EU assisting Member States to better implement the Charter, and
how could these instruments be improved? See Section 3.
The Opinion draws on FRA’s internal analysis and input collected from:
 replies by the EU agencies who responded to a questionnaire sent by the
Chairperson of AFCO to all agencies (see Annex 2);
 its multidisciplinary expert network FRANET, covering all 28 EU Member States,
as well as feedback received to questions sent to FRA’s National Liaison
Officers working for the governments in the 28 EU Member States;
replies to a questionnaire of 10 questions sent by FRA to the participants of its
Fundamental Rights Platform (a platform currently bringing together 714 non-
governmental organisations and civil society institutions active in the field of
fundamental rights).
This Opinion should be read in light of other work the agency is carrying out on the
Charter of Fundamental Rights. Amongst others, this strand of FRA’s work includes the
database Charterpedia, FRA handbooks and opinions.
1
The report “Implementation of the Charter of Fundamental Rights of the European Union in the EU institutional
Framework” (2017/2089(INI)) is expected to be voted upon in the Committee in early 2019.
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1. EU level: implementation of the Charter by the EU,
especially its agencies
1.1. EU legislative process
The adoption of the Charter had a positive impact on the standing of fundamental
rights within the EU’s administrative culture.2 All three major EU institutions have
adapted their institutional rules to give fundamental rights more relevance and
visibility. The European Commission took the lead in pledging to systematically verify
the compatibility of its legislative proposals with the Charter at an early stage.
Fundamental rights are taken into consideration both at the stage of the assessment
of impacts3 as well as in the check of the legality of legislative proposals. The Council
adopted guidelines on methodological steps to be taken to check fundamental rights
compatibility at the Council's preparatory bodies in 2011 and revised these in 2014.4
The European Parliament inserted a new rule on respect for fundamental rights in its
rules of procedure in 2009. This rule 38 allows the Committee on Civil Liberties, Justice
and Home Affairs (LIBE) of the European Parliament to submit an opinion on a
legislative file for which it is actually not responsible. This can be triggered when it is
considered that the legislative proposal does not fully comply with rights enshrined in
the Charter.5
The case law of the Court of Justice of the European Union (CJEU) clearly signals how
important it is to ensure that EU legislation does not violate fundamental rights. The
CJEU expects the wording of EU legislation to show that, when adopting it, “the Council
and the Commission took into consideration methods…causing less interference” with
fundamental rights.6 It is hence necessary that the EU institutions strike “a proper
balance between the various interests involved”.7 The Court assesses whether the EU
legislator “exceeded the limits which compliance with the principle of proportionality
imposes”.8 If the piece of EU legislation (read in context with its preparatory material)
does not stand this test, there is a risk that the CJEU will strike down the respective
2
Toggenburg, G. N. (2014), ‘The EU Charter: Moving from a European Fundamental Rights Ornament to a European
Fundamental Rights Order’ in: Palmisano, G. (ed.), Making the Charter of Fundamental Rights a Living Instrument,
Brill Publisher, 2014, pp. 10-29.
3
Fundamental rights are now explicitly taken account of in the so-called Better Regulation "Toolbox", in which
they constitute Tool #28. The system was developed over time. Compare SEC(2009) 92 final of 15 January 2009
and SEC(2011) 567 final of 6 May 2011. Very rarely will the Commission be of the view that an impact
assessment is not needed (see e.g. The Commission’s proposal of 2 May 2018 for a regulation on the protection
of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States,
COM(2018) 324 final and the critique expressed by the Court of Auditors in that regard in its opinion 1/2018, in
OJ C 291, 17 August 2018). Sometimes lack of time might lead to a situation where no impact assessment is
carried out (see e.g. the proposal for a regulation on the European Border and Coast Guard, COM(2018) 631 final,
12 September 2018, p. 14). Sometimes proposals are based on an external feasibility study (see e.g. the
proposal for a regulation establishing a European Travel Information and Authorisation System (ETIAS),
COM(2016) 731 final, 16 November 2016). It should be noted that even a very thorough assessment in terms of
fundamental rights does not guarantee that the concerns raised are all taken into account at political level. An
example is the regulation on the security of identity cards. See in this regard FRA (2018), Fundamental rights
implications of storing biometric data in identity documents and residence cards, FRA Opinion – 3/2018,
Luxembourg, Publications Office of the European Union (Publications Office).
4
Council of the European Union (2015), Doc. 5377/15, Brussels, 20 January 2015.
5
Rule 38 of the European Parliament’s rules of procedure. The procedure can be triggered by the committee
responsible for the subject matter, a political group or at least 40 Members. The procedure has so far hardly been
used (an example where the rule was used was the Anti-Counterfeiting Trade Agreement).
6
CJEU, C-92/09, Volker und Markus Schecke GbR [GC], 9 November 2010, and C-93/09, Hartmut Eifert v. Land
Hessen, para. 81.
7
Ibid., para. 83.
8
Ibid., para. 86.
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act.9 Not taking fundamental rights seriously from the very outset of the legislative
process can therefore have a direct impact on the sustainability of the EU legislation
adopted.
Alongside improvements over recent years, various proposals have been made to
further strengthen the standing of fundamental rights in the legislative procedure at
EU level. These focus on issues such as enhanced visibility of fundamental rights
compliance assessment procedures, the degree of depth of such assessments, and
strengthening of related inter-institutional cooperation.10
At national level, independent national human rights institutions are frequently
consulted in the national legislative procedure – something that happens at EU level
only regarding the processing of personal data, with the European Data Protection
Supervisor regularly issuing opinions. This current lacuna is partly due to a mandate
limitation of the EU’s fundamental rights body: FRA’s founding regulation does not
allow FRA to issue opinions on draft EU legislation, unless it is explicitly requested to
do so by the European Parliament, the Council of the European Union or the European
Commission.
Against this background the FRA Management Board has proposed that “[w]here the
EU legislator deals with legislative files that raise fundamental rights questions, the
Agency should be able to provide its assistance and expertise where and when it is
needed and not only when it is formally requested. Therefore, in order to make full
use of the Agency’s expertise in the legislative process, the Founding Regulation
should allow the Agency to deliver non-binding opinions on draft EU legislation on its
own initiative.”11
Until the founding regulation is changed – which requires unanimity in the Council – it
is up to the EU institutions to agree on a more systematic consultation of FRA. Such a
structured engagement with FRA could help to further decrease the risk that EU
legislation interferes with fundamental rights in ways that cannot be justified under
the relevant standards. A more regular consultation of FRA would also be in line with
the Conclusions adopted by the European Council at its meeting of 26 and 27 June
2014, where it noted that, among other measures, greater reliance on Eurojust and on
FRA could support "the smooth functioning of a true European area of justice with
respect for the different legal systems and traditions of the Member States", by further
enhancing "mutual trust in one another's justice systems".12 This is also the position
9
CJEU, Joined cases C-293/12 and C-594/12, 10 June 2014.
10
For literature on this topic, see for example, Fyhr, K (2016), Making fundamental rights a reality in EU legislative
process: Ex ante review of proposals for EU legislative measures for their compatibility with the Charter of
Fundamental Rights of the European Union, Helsinki, University; De Schutter, O. (2016), The implementation of
the Charter of Fundamental Rights in the EU institutional framework, Study for the AFCO Committee; Smismans,
S. and Minto, R. (2016), ‘Are integrated impact assessments the way forward for mainstreaming in the European
Union?’, Regulation & Governance; Butler, Israel de Jesus (2012), ‘Ensuring Compliance with the Charter of
Fundamental Rights in Legislative Drafting: The Practice of the European Commission’, European Law Review,
Vol. 37, Issue 4, pp. 397-418.
11
Recommendation number 7 of the Recommendations of the Management Board of FRA to the EU legislators,
following up on the second independent external evaluation of the Agency, Management Board Decision
2017/05, 14 December 2017. Note, for instance, the wording used in Article 58 (1) lit. g) of the proposal for a
regulation on the protection of individuals with regard to the processing of personal data by the Union
institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC)
No. 45/2001 and Decision No. 1247/2002/EC, which lists under the tasks of the Eurpopean Data Protection
Supervisor to “advise all Union institutions and bodies on legislative and administrative measures relating to the
protection of natural persons' rights and freedoms with regard to the processing of personal data”.
See COM(2017) 8 final, 10 January 2017.
12
European Council (2014), EUCO 79/14, 27 June 2014, para. 11 of the Conclusions. Note that the mentioned
guidelines on the methodological steps to be taken to check fundamental rights compatability at the Council’s
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taken by the European Parliament, which stresses the need to “ensure that the
Commission – and the Council, where it initiates legislation – where appropriate, make
use of the external independent expertise of the FRA”.13
To more consistently implement these political statements in political practice, the EU
institutions could agree to regularly request independent external advice where a
legislative file has a special potential to promote, or risks unduly limiting, fundamental
rights.14 This process of prioritisation and external consultation could be coordinated
within the respective EU institutions by drawing on Charter-focal points – persons or
subunits tasked with special Charter-responsibilities.
FRA Opinion 1: Involving independent external expert advice at EU level

During the past decade, the EU institutions have developed various procedures and
mechanisms to help guarantee that EU law and policies respect the rights laid down in
the Charter. But these are mainly internal procedures carried out by the services of the
respective EU legislators – mainly the European Commission but potentially also the
European Parliament and the Council of the European Union. Independent external
expertise is regularly requested only with regard to processing personal data, via the
European Data Protection Supervisor. FRA is currently not regularly consulted on
legislative drafts that raise potential issues across the wide spectrum of rights covered
in the Charter.
The EU institutions should provide for enhanced forms of consultation, impact
assessments and legal scrutiny, including by requesting advice from appropriate
independent expert bodies, such as FRA, whenever a legislative file potentially
promotes or negatively affects fundamental rights. More regular consultation of FRA
could be provided for in a revised version of the inter-institutional agreement on
better lawmaking. Charter focal points within the EU institutions – or their legal
services – could help guarantee that fundamental rights-sensitive files receive the
attention and scrutiny they deserve. This will help ensure Charter-compliant and thus
sustainable EU legislation that avoids fundamental rights issues during
implementation at national level and the risk of annulment by the Court of Justice of
the European Union.
1.2. Agencies and fundamental rights

Some Charter rights specifically refer to and address the EU agencies – such as the right
to good administration, the right of access to documents, and the right to refer to the
European Ombudsman (Articles 41, 42 and 43 of the Charter).15 But it is important to
preparatory bodies do refer to the possibility to “make use of the expertise of the European Union Agency for
Fundamental Rights”. However, in the relevant final Section IV entitled “In case of doubt”, the guidelines do not
refer to the possibility to request an opinion from FRA. The guidelines here refer the lawmaker only to the following
three options: 1) “Consult the Council Legal Service”, 2) “Use the expertise of national experts in the capital “, 3)
“Inform the FREMP Working Party or other preparatory body specialising in a specific fundamental right“. This was
criticised as inconsistent, see De Schutter, O. (2016), The implementation of the Charter, p. 17.
13
See European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European
Union (2012) (2013/2078(INI)), point 8 (c).
14
Such an enhanced coordination and openness for external independent advise would also form a natural building
block of a “Union internal strategy on fundamental rights”, as envisaged by the Council in 2014. See Council of
the European Union, JHA Council (2014), Council conclusions on the Commission 2013 report on the application of
the EU Charter of Fundamental Rights and the consistency between internal and external aspects of human
rights’ protection and promotion in the European Union, 5 and 6 June 2014, para. 24.
15
Also of relevance to the administrative culture of any agency is Art. 9 of the TFEU: “In all its activities, the Union
shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions,
bodies, offices and agencies.” See also Art. 263 (1) and (4), Art. 265, Art. 267 (1) lit b) and Art. 325 of the TFEU.
© FRA 14
recall that the Charter is in its entirety addressed and applicable to “the institutions,
bodies, offices and agencies of the Union” (Article 51 of the Charter).16 Against this
background it is indeed of interest to look into the Charter’s role in the administrative
practice of EU agencies.
The Chairperson of the European Parliament’s AFCO Committee sent a questionnaire
regarding the awareness and (current and potential) use of the Charter to 50 agencies
and other bodies. The Parliament received replies from 42 agencies (see Annex)17,
which were forwarded to FRA with the request to analyse the replies and present the
analysis in this FRA Opinion. In addition, the Committee requested FRA to conduct
“supplementary interviews with relevant interlocutors within the agencies”. FRA
agreed with the Secretariat of the AFCO Committee to organise teleconferences with
eight agencies that operate in the sphere of justice and home affairs, where
fundamental rights protection is of particular relevance.18 The following information is
based on the responses to the questionnaire and the telephone interviews conducted.
Given the amount of information gathered, the below just provides some illustrative
examples.
Before coming to concrete examples of how the Charter is used and referred to by
agencies, it is worth recalling the enormous diversity amongst the EU agencies
consulted. First, there are – next to the Fundamental Rights Agency, which is tasked
with dealing with all Charter rights – agencies who are specifically tasked with
promoting and protecting certain fundamental rights. These include EIGE (Articles 21
and 23 of the Charter); the European Agency for Safety and Health at Work (EU-OSHA),
which is mandated to promote safety and health at work (Articles 31 and 32 of the
Charter); and the European Union Intellectual Property Office (EUIPO), mandated to
enforce intellectual property rights, which is, as the agency noted in its response, “one
of the cornerstones of the protection of Article 17.2 of the Charter” (protection of
intellectual property). This can also be said of the European Environment Agency (EEA),
which noted that it “aims to support sustainable development and to help achieve
significant and measurable improvements in Europe’s environment, through the
provision of timely, targeted, relevant and reliable information to policymaking agents
and the public. The EEA contributes in this way to the promotion of the fundamental
right on environmental protection (Article 37 of the Charter)”.
Second, there are agencies mandated to deal with particularly fundamental rights-
sensitive areas, such as those operating in the sphere of justice and home affairs. This
requires them to pay particularly close attention to whether agency operations
encroach on fundamental rights. An example is Frontex, which, in accordance with
Article 6 of its Founding Regulation, is tasked with “facilitating and rendering more
effective the application of existing and future EU measures relating to the
management of the external borders in the context of European integrated border
management”. As the agency points out, it “is conscious of the fact that the fulfilment
of certain law enforcement tasks mandated by the EU legislature may entail an
16
See also Art. 263 (1) and (4), Art. 265, Art. 267 (1) lit b) and Art. 325 of the TFEU.
17
In addition, a reply was received from the EURATOM supply agency, stating that ‘in the field of fundamental
rights, it does not have its own policy, but is covered by the policies of DG ENER and the European Commission’.
The agency therefore did not reply to the questionnaire and thus it is not included in the figures under Section
1.4.
18
In addition to FRA, the following make up the nine Justice and Home Affairs (JHA) agencies: the European Asylum
Support Office (EASO), the European Agency for the operational management of large-scale IT Systems in the
area of freedom, security and justice (EU-LISA), the European Institute for Gender Equality (EIGE), the European
Border and Coast Guard Agency (Frontex), the European Union Agency for Law Enforcement Cooperation
(Europol), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), the European Union Agency
for Law Enforcement Training (CEPOL), and the European Union Judicial Cooperation Unit (Eurojust).
© FRA 15
encroachment on fundamental rights” and thus, it notes, “[t]he protection of
fundamental rights permeates all areas of activity of Frontex”. Similarly, Europol points
out that its Founding Regulation and its mandate “is directly linked to the EU Charter
of Fundamental Rights. Europol’s core business to support EU Member States in
preventing and combating all forms of serious crime and terrorism contributes to
improve security for people living in the EU and thus also to protect their rights.” The
results of FRA’s consultation shows that the Charter awareness of these agencies
tends to be especially high.
Third, there are agencies whose mandate is of a more technical nature. This does not
mean that their operations are of no relevance to the implementation of the Charter.
For instance, the mandate of the European Chemicals Agency (ECHA) relates to the
safe use of chemicals. In its response, ECHA noted: “[t]he sound management of
hazardous substances contributes to overall environmental protection, which in turn
avoids serious effects on the right to life, the right to the integrity of the person, the
right to fair and just working conditions and also the right to environmental
protection”. Despite all this, fundamental rights appear rather absent from a key
document for agencies – their founding regulation (or decision). As can be seen in
Table 1, only 15 of the 42 preambles mention fundamental rights, and only 4 out of
42 legal instruments refer to fundamental rights in the operative part of the founding
regulation (or its equivalent).
Table 1: Founding regulations (decisions) of EU agencies (bodies) and references to
fundamental rights
Agency/Body Regulation (or Preamble Operative part

equivalent) date
Adopted/revised before 1 December 2000
CEDEFOP 10 February
1975
EUROFOUND 26 May 1975
EUIPO 20 December
1993
EU-OSHA 18 July 1994
CPVO 27 July 1994
CDT 28 November
1994
Adopted/revised after 1 December 2000 (proclamation of the Charter) and before
1 December 2009 (entry into force of the Charter)
EFSA 28 January 2002
EUROJUST 28 February ✓
2002
EMSA 27 June 2002
ENISA 10 March 2004
EMA 31 March 2004
ECDC 21 April 2004
ERA 29 April 2004
EFCA 26 April 2005
EMCDDA 12 December ✓
2006
© FRA 16
ECHA 18 December ✓
2006
EIGE 20 December ✓ ✓19
2006
FRA 15 February ✓ ✓20
2007
EIT 11 March 2008
ETF 16 December ✓
2008
EUROPOL 6 April 2009 ✓
EEA 23 April 2009
BEREC 25 November
2009
Adopted/revised after 1 December 2009
EASO 19 May 2010 ✓
GSA 22 September
2010
EIOPA 24 November
2010
ESMA 24 November
2010
EBA 24 November
2010
ACER 25 October 2011 ✓
EU-LISA 25 October 2011 ✓
ERCEA 17 December
2013
EACEA 18 December
2013
INEA 23 December
2013
SRB 15 July 2014 ✓
CEPOL 25 November ✓
2015
FRONTEX 14 September ✓ ✓21
2016
19
Regulation (EC) No. 1922/2006 of the European Parliament and of the Council of 20 December 2006 on
establishing a European Institute for Gender Equality, Article 10.
20
Council regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for
Fundamental Rights, Art. 2, 4, 5, 8, 10, 12, 15, 28 and 30. Whereas the Charter is not mentioned in the
operational text of the founding regulation, the agency’s mandate is of obvious relevance to the implementation
of the Charter. In 2009 the European Parliament welcomed the setting-up of the Agency as a first step towards
meeting Parliament's calls for the establishment of an integrated regulatory and institutional framework
designed to put the Charter into effect. See Toggenburg G.N. (2018), The European Union Fundamental Rights
Agency, in Gerd Oberleitner (ed.), International Human Rights Institutions, Tribunals, and Courts, Springer,
Singapore.
21
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the
European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of
the Council and repealing Regulation (EC) No. 863/2007 of the European Parliament and of the Council, Council
Regulation (EC) No. 2007/2004 and Council Decision 2005/267/EC, Art. 1, 6, 12, 16, 18, 21, 22, 25, 26, 27, 28,
29, 34, 35, 36, 40, 52, 54, 55, 61, 62, 68, 70, 71 and 72.
© FRA 17
EPPO 12 October 2017 ✓ ✓22
EASA 4 July 2018 ✓
Joint undertakings:
Adopted/revised after 1 December 2000 and before 1 December 2009
SESAR JU 27 February
2007
Adopted/revised after 1 December 2009
ESCEL JU 6 May 2014
CS2 JU 6 May 2014
BBI JU 6 May 2014
Source: FRA, 2018
In addition to the differences discussed above, it is also important to stress the

different legal nature of the agencies and other bodies consulted by AFCO. Some are
executive agencies, others regulatory agencies with the executive agencies forming
an integral part of the European Commission (see Annex 1). The executive agencies
are not part of the "Agencies network". The different nature of the respondents should
be taken into consideration when looking at the replies of the agencies and other
bodies to the questionnaire.
1.3. Agencies: internal and external protection mechanisms and

policies
A distinction can be drawn between mechanisms and policies that exist to safeguard
fundamental rights within agencies (internal mechanisms) and those that exist to
ensure that agencies do not violate fundamental rights vis-à-vis third parties (external
mechanisms). The agencies frequently drew this internal/external distinction in their
responses, and emphasised the importance of the Charter in both aspects of their
work. As CEPOL pointed out, for example, “[t]he EU Charter of Fundamental Rights has
a twofold role in CEPOL’s work. First, it concerns staff at a [personnel] level. […]
Second, the promotion of fundamental rights in law enforcement is foreseen in
CEPOL’s mandate, which is to provide training for law enforcement officials, namely
police officers, judges and prosecutors.” In the following, examples of available
mechanisms and policies are given. Examples provided can be shared by (many) other
agencies even if this is not mentioned.23
Internal protection of fundamental rights
Agency compliance with and promotion of fundamental rights has to start within the
agencies themselves. No matter what their activities entail, all agencies will encounter
fundamental rights issues in their internal operations, in particular as they relate to the
rights of staff and potential staff members. A range of policies have been developed
to ensure fundamental rights are protected within the agencies, as is evident from the
responses received. The origin of such policies is mostly in the EU’s staff regulations
(e.g. in the context of social security benefits or the right to information, etc.) and in
other regulations that apply to the EU as a whole (such as, for instance, in the areas of
data protection or access to documents), and therefore also to the agencies.
22
Council regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the
establishment of the European Public Prosecutor’s Office (‘the EPPO’), Art. 32, 58, 60, 61, 83, 84 and 85.
23
For instance, ECHA has – like EASA – a code of conduct for staff, MB and BoA, and they have a Board of Appeal as
mentioned for EASA.
© FRA 18
Nonetheless, agencies have also adopted various agency-specific measures. Some
examples are by way of illustration highlighted below.
- Freedom of expression (Article 11 of the Charter). This issue is governed by

Staff Regulation Article 17a, ‘Freedom of expression’. A number of agencies
have put in place more detailed regulation of such issues. For example, the
European Medicines Agency (EMA) has in place a policy on publications by
staff that references the Charter of Fundamental Rights, 10 June 2008, which
refers to open publication so that access is readily available to research
funded by EMA as a public body.
- Equality between men and women (Article 23 of the Charter). Agencies have
instituted specific policies in the area of equality between men and women.
For instance, the European Research Council (ERC) Scientific Council
established a Working Group on Gender Balance to counteract gender bias in
peer review.
- Integration of people with disabilities (Article 26 of the Charter). Article 1(d)
of the Staff Regulations prohibits any discrimination based on any grounds,
including disability. The European Research Council Executive Agency
(ERCEA) notes that experts are recruited without any reference to disabilities
and measures to facilitate their work are taken.
- Fair and just working conditions (Article 31 of the Charter). Agencies have
also instituted specific policies to protect the right to fair and just working
conditions. For example, the CPVO points to tailor-made internal instruments
such as ‘the AC Rules on Good Administrative Behaviour’, ‘the Internal
Communication Guidelines’, and ‘the Health and Wellbeing Policy’ as well as
its ‘Policy on protecting the dignity of the person and preventing
psychological and sexual harassment’ (Articles 1 and 4 of the Charter). In
addition, agencies also have in place a system of confidential counsellors, in
order to, as pointed out in the EU-OSHA response, “provide staff with an
objective and trusted place to turn to in cases of harassment or other forms
of inappropriate behavior at work.”
- Environmental protection (Article 37 of the Charter). Agencies and joint
undertakings have instituted a range of policies to implement this right
internally. For example, the Electronic Components and Systems for
European Leadership Joint Undertaking (ECSEL JU) has a policy of no individual
printers, limited use of paper (paperless procedures are in the test phase)
and of plastics. It also notes that energy efficiency is encouraged via all
means.
- Right to refer to the European Ombudsman (Article 43 of the Charter).
Agencies have instituted several policies to remind individuals of this right.
For instance, EIOPA points out that it explicitly reminds people of this right
on several occasions, such as in vacancy notices and other calls for
expression of interest, in its whistleblowing policy, as well as in its Code of
Good Administrative Behaviour.
External protection of fundamental rights: general measures
Agencies are also required to respect the Charter in their operational activities. For this
purpose, many fundamental rights-protection policies and mechanisms have been put
in place at the agency level to ensure that they respect fundamental rights vis-à-vis
external rights-holders. Examples include the following:
© FRA 19
- Appointment of official(s) within the agency responsible for fundamental
rights.
Article 71 of the Frontex Founding Regulation provides for a Fundamental Rights
Officer, appointed by the Management Board; this person is independent in the
performance of his or her duties and contributes to the agency's fundamental rights
strategy, monitors its compliance with fundamental rights and promotes its respect.
CEPOL ensures that all the training pertaining to fundamental rights is coordinated by
a single contact point. With the adoption of the new EU Asylum Agency (EUAA), the
prospective successor to EASO, this agency too will establish a Fundamental Rights
Officer; it will further help to mainstream fundamental rights in all its activities and
thus strengthen its role in promoting the Charter when working with its stakeholders.
EASO noted in its response, “[i]t will be a powerful mechanism to streamline further
fundamental rights across the agency building on the extensive work already done.”
- Adoption of a fundamental rights strategy.
Article 34 of Frontex’s Founding Regulation requires the agency to draw up, further
develop and implement a Fundamental Rights Strategy in order to guarantee the
protection of fundamental rights in the performance of its tasks. Similarly, the
proposed European Asylum Support Office (EUAA) Regulation will require the agency
to adopt a fundamental rights strategy to monitor and ensure their protection.
- Creation of a fundamental rights complaints mechanism.
Article 72 of the Frontex Founding Regulation requires the agency, in cooperation with
the Fundamental Rights Officer, to take the necessary measures to set up a complaints
mechanism to monitor and ensure respect for fundamental rights in all the activities
of the agency. Any person who is directly affected by the actions of staff involved in
the activities of the agency and who considers him or herself to have been the subject
of a breach of his or her fundamental rights due to those actions, or any party
representing such a person, may submit a complaint in writing.
- Creation of a consultative forum focusing on fundamental rights matters.
Article 70 of Frontex’s Founding Regulation establishes a Consultative Forum to assist
the Executive Director and the Management Board with independent advice in
fundamental rights matters.
- Adoption of fundamental rights codes of conduct in operational activities.
Article 35 of the Frontex Founding Regulation requires drawing up codes of conduct
for (i) all persons participating in Frontex operational activities and (ii) persons
participating in return operations.
- Policies to withdraw financing or suspension/termination of operations in
case of fundamental rights violations.
At Frontex, the powers of the Executive Director in case that fundamental rights are
not respected in operations (Article 25, Founding Regulation) include the power to
withdraw financing, suspend or terminate activities of the agency.
- Training of staff on fundamental rights matters in operations.
Training on fundamental rights to border guards and return personnel is provided for
in Article 36 of the Frontex Founding Regulation, which requires the agency to ensure
that its staff and all staff who participate in return operations and in return
interventions have received training in relevant EU and international law, including on
© FRA 20
fundamental rights and access to international protection, prior to their participation in
operational activities organised by the agency.
- Inclusion of fundamental rights in operational planning.
Frontex’s Operational Plan (Article 16 of the Founding Regulation) also includes
fundamental rights considerations. As Frontex points out, the protection of
fundamental rights is central, “as it contains inter alia procedures aimed at (i)
protecting persons in need of international protection, victims of trafficking in human
beings, unaccompanied minors and persons in a vulnerable situation and (ii) allowing
to report to Agency breaches of fundamental rights.”
External protection of fundamental rights: measures aimed at protecting particular
fundamental rights
Agencies also reported on a number of measures taken to protect specific Charter
rights in their operations. Examples include:
- Right to education (Article 14 of the Charter).
The ETF contributes, in the context of EU external relations policies, to human capital
development, defined as work that contributes to the lifelong development of
individuals’ skills and competences through the improvement of vocational education
and training systems. In this context, the work of the ETF is relevant to the protection
and promotion of fundamental rights in countries that are not bound by the Charter.
- Protection of the right to property (Article 17 of the Charter).
In the performance of its tasks, the Single Resolution Board (SRB), which deals with
the orderly resolution of failing banks, noted that its legal framework “provides specific
safeguards for the protection of the right to property […] which ensures that no
creditors are treated less favourably in resolution than they would be treated in
insolvency. In such a case, the legal framework provides for a specific right to
compensation from the Single Resolution Fund.”
- Linguistic diversity (Article 22 of the Charter).
A number of agencies have put in place policies to respect linguistic diversity. For
example, EU-OSHA referred to its award-winning multilingual website (25 languages).
- Environmental protection (Article 37 of the Charter).
Agencies have also put in place measures vis-à-vis third parties to ensure
environmental protection in line with their obligations in this area. For example,
the European Centre for Disease Prevention and Control (ECDC) notes that it “requires
compliance with environmental standards from its contractors. Thus, services provided
to the agency must align with those and the principle of sustainable development.
Recent examples of this include requirements for the procurements for the new
building premises and ICT outsourcing.”
- Right to good administration (Article 41 of the Charter).
The European Aviation Safety Agency (EASA) has put in place a comprehensive set of
measures to implement the right to good administration, reflected in particular in the
Code of Conduct for the staff of EASA. Similar codes were established for the EASA
Board of Appeal and for the EASA Management Board as well as for external experts.
- Right to an effective remedy (Article 47 of the Charter).
© FRA 21
A distinction may be drawn between agencies that take binding decisions vis-à-vis
third parties and those that do not. In addition to the ability to go to the CJEU, appeals
procedures have been put in place in a number of such agencies to enhance respect
for the right to an effective remedy. For example, EASA has established a Board of
Appeal to decide on appeals brought against EASA decisions and adopted dedicated
policies and procedures in this respect.
1.4. Agencies and fundamental rights: the way forward

The examples above show that a variety of practices are available across the many
agencies – a diversity that would call for the exchange of both promising practices and
challenges in better implementing and promoting the Charter in general as well as its
individual rights.
Reinforced inter-agency cooperation in this regard could build on some existing
experiences. Agencies have signed memoranda of understanding24 and there are
relevant networks25 that allow for exchange amongst agencies. Agencies have also
issued some joint statements relevant to fundamental rights.26 To further develop a
‘Charter-culture’ across all agencies, such practices could be further extended.
A 2016 study commissioned by the European Parliament reached the following
conclusions:
 The comparison between Frontex and the European Asylum Support Office
(EASO) illustrates that EU agencies have widely diverging practices as regards
whether, and how, to integrate the Charter in their working methods. There
is considerable room for progress through collective learning across agencies.
 All EU agencies could consider: (i) adopting a fundamental rights strategy;
(ii) including a reference to fundamental rights in a code of conduct that could
define the duties of their staff; (iii) setting up mechanisms ensuring that any
violation of fundamental rights be detected and reported, and that risks of
such violations be swiftly brought to the attention of the main bodies of the
agency; (iv) establishing the position of a fundamental rights officer,
reporting directly to the management board to ensure a certain degree of
independence vis-à-vis other staff, in order to ensure that threats to
fundamental rights shall be immediately addressed, and a constant upgrading
of the fundamental rights policy within the organization; (v) developing a
regular dialogue with civil society organisations and relevant international
organizations on fundamental rights issues; and finally, but perhaps most
importantly, (vi) making compliance with fundamental rights a central
component of the terms of reference of the collaboration of the agency
24
For example, Eurojust concluded a Memorandum of Understanding with the Fundamental Rights Agency on 3
November 2014 in order to enhance cooperation, consult and inform each other on issues of common interest
and exchange strategic and technical information.
25
The Justice and Home Affairs agencies’ network (JHA network) was established in 2006 to increase cooperation
and synergies in areas of common interest, such as operational work, training and external relations. It is
composed of nine agencies (see Footnote 18). The agencies work together on a wide range of issues and play an
advisory, operational and coordination role in implementing EU priorities in the area of freedom, security and
justice.
26
See the EU agencies’ joint statement pledging to strengthen fundamental rights protection of 20 February 2015,
or the common declaration against sexual harassment in the workplace on the occasion of International Women’s
Day of 8 March 2018. Note that, on 13 June 2018, 10 EU agencies renewed their commitment to fight trafficking
in human beings.
© FRA 22
concerned with external actors, including in particular members of national
administrations with whom they interact at operational level.27
This section looks at the views of the agencies on such policy proposals.
Regarding the agencies’ own perceptions of their staff’s awareness of the Charter, the
agencies felt that this awareness was adequate – but in some cases, it was also
considered low (figure 1). Agencies operating in fundamental-rights sensitive areas
tended to indicate a higher level of awareness of (the Charter of) fundamental rights.
For example, all three agencies that responded that awareness was ‘very high’
operate in ‘fundamental-rights sensitive’ areas such as justice and home affairs, and
agencies/joint undertakings responding that awareness was low tended to operate in
more technical spheres, such as information security (ENISA), fusion energy (F4E) and
energy regulation (ACER). Agencies that operate in the sphere of fundamental rights
all reported that awareness of the Charter amongst relevant staff was at least
adequate. Overall, the vast majority of agencies responding to the questionnaire felt
that their staff were at least sufficiently aware of the Charter. . It should be noted, as
indeed some agencies remarked, that the above is not based on detailed
questionnaires of their own staff, but on the perceptions of those filling out the
questionnaire.
27
De Schutter, O. (2016), Implementation of the EU Charter of Fundamental Rights in the EU institutional
framework, Study for the AFCO Committee, p. 42.
© FRA 23
Figure 1: Awareness of the Charter in EU agencies
QUESTION 4: Would you evaluate awareness of the Charter and its implications for
your agency amongst relevant staff (both operational and administrative) to be (choose
one option): (41/41 Responses)
25
23
20
15
10
8
6
5
5
0
0
Very high High Adequate Low Very low
FRONTEX, EFSA, ERCEA, ECDC, EIT, EU-LISA, ENISA, F4E,

CEPOL, ESMA, EFCA, EEA, ESCEL- EACEA, ACER,
EUROJUST, EUROFOUND, JU, SRB, SATCEN, ECHA,
FRA, ETF EUROPOL, REA, EMCDDA, CHAFEA, EASME28
GSA, EUIPO EASA, EMA, CS2
JU, EIOPA,
CEDEFOP, CDT,
SESAR JU, BBI JU,
EU OSHA, ERA,
CPVO, INEA, EMSA
Notes: For the agencies’ full names, see the list of acronyms.
Reflects the results of a consultation with EU agencies based on a questionnaire, which
50 agencies and joint undertakings received and to which 42 responded.
Source: FRA, 2018
Potential fundamental rights policies within the agencies

The questionnaire sent to the agencies confronted them with a range of policy options,
and asked them whether they saw these actions as relevant and/or useful to their
work. Many agencies felt there was a need for action to improve the situation. The
questionnaire asked agencies to consider certain policy options. Figure 2 shows the
overall results. Figures 2-10 show how the different agencies replied to the different
specific proposals. These ranged from training (Figure 3), increased collaboration with
other agencies (Figure 4), development and application of a Charter checklist (Figure
5), designation of Charter focal points for external affairs (Figure 6) or for internal
28
EASME conducted a survey of its staff, with 40 out of 96 replying that they felt awareness was low; 17 indicating
very low; 27 adequate, 10 high and two very high. Replies of other agencies were not based on such surveys,
but on the perceptions of those filling out the questionnaire.
© FRA 24
affairs (Figure 7), development of a dialogue with relevant fundamental rights
stakeholders such as NHRIs etc (Figure 8), promotion of the joint agencies’ statement
‘Strengthen fundamental rights’ protection’ (Figure 9),29 and adoption of a
fundamental rights strategy (Figure 10). Agencies were also offered the opportunity
to elaborate on their answers.
Figure 2: Acceptance of different ways to promote fundamental rights
30
25
20
15
10
0
Promotion of Developing a Fundamental Focal Point - Focal Point - Training on Dialogue with Collaboration
the Charter Rights external internal Charter stakeholders with other
Declaration check-list Strategy Agencies
Very good and feasible Good and feasible Not good or not feasible
Note: Reflects the results of a consultation with EU agencies based on a questionnaire, which
Source: FRA, 2018
Looking at each of the specific policies, agencies generally felt very strongly about the
utility of more training on the Charter for their staff (see Figure 3). It was suggested
that it would be effective to give training on “concrete aspects” of the functioning of
the relevant agency (EFSA) and link them to the Charter, rather than a general
theoretical training on the Charter. Other agencies (EU-LISA) noted that “it is of utmost
importance to make sure that all employees in the Agency, including the Management
Team, should receive regular trainings on the subject of fundamental rights”. Some
agencies suggested co-operation with FRA (Eurojust), while others (e.g. the Innovation
and Networks Executive Agency, INEA) felt that such training should take place at the
central level by the Commission, or between executive agencies (e.g. the Education,
Culture and Audiovisual Executive Agency, EACEA).
29
FRA (2015), Strengthen fundamental rights’ protection: All EU Agencies sign joint statement, News release, 24
February 2015.
© FRA 25
Figure 3: Acceptance of different ways to promote fundamental rights: training
QUESTION 5f: Providing regular training on the Charter to staff

(40 /42 Responses)
30
25
20
29
15
10
5
1
0
EU-LISA, ACER, ECHA, ECDC, GSA, EASA, EMA, CDT, EFSA

Eurojust, EIOPA, ERA, INEA, CPVO, EU OSHA,
Europol, Eurofound, SESAR, BBI JU, Cedefop,
ESCEL JU, FRONTEX, EACEA, CS2 JU, EUIPO,
FRA, EMSA CHAFEA, EMCDDA, CEPOL,
SRB
SatCen, REA, ERCEA, EEA,
EFCA, ESMA, ENISA, F4E, EIT,
ETF
Reflects the results of a consultation with EU agencies based on a questionnaire, which 50
agencies and joint undertakings received and to which 42 responded.
Source: FRA, 2018
There also appears to be considerable enthusiasm about deepening existing

collaboration with other agencies (see Figure 4). It was noted that “[t]his cooperation
could be channelled through the JHA Network where Agencies working in a common
area may be better positioned to exchange best practices and information” (Eurojust
response) – a view echoed by a number of other agencies (e.g. the Bio-based
Industries Joint Undertaking BBI-JU, EUIPO, ECSEL JU). Informal networks (EU-OSHA) and
the agencies’ website (EUIPO) were also referred to. Several agencies also saw a role
for FRA in facilitating these activities (ECHA, European Food Safety Authority (EFSA)).
© FRA 26
Figure 4: Acceptance of different ways to promote fundamental rights: collaboration
QUESTION 5h: Further developing collaboration with other Agencies (in the context of the Agencies
network) to exchange practices and information on how to best implement and promote the EU
Charter externally and internally.
(40 / 42 Responses)
25
20
15
21
19
10
1
0
EFSA, ERCEA, F4E, EIT, ECDC, ESMA, ENISA, EMA, INEA

EEA, Cedefop, ERA, BBI CDT, ACER, CPVO, ECHA,
JU, EIOPA, Eurojust, EU OSHA, SESAR JU, EU-
EUIPO, ESCEL JU, SRB, LISA, EFCA, GSA, CHAFEA,
SatCen, FRONTEX, EASA, EACEA, CS2 JU,
Eurofound, Europol, EMCDDA, REA, ETF, ESMA
CEPOL, FRA
Source: FRA, 2018
Views on developing a Charter-checklist diverged (see Figure 5). Some agencies

warned that this would be an additional administrative burden (F4E,
the European Global Navigation Satellite Systems Agency (GSA)). Others noted that it
would be potentially useful. Eurojust noted that it was working on establishing such a
checklist. Europol pointed out that “[t]he Charter of Fundamental Rights of the
European Union is a key source of Europol’s Ethics framework that is maintained across
the organisation on a continuous basis, including regular oversight by the Executive
Director and the Directorate of Europol as a whole who are supported by the
independent functions of Europol (Data Protection officer, Internal Audit Capability –
IAC) in that context. Against this background, a check-list at Europol is not considered
necessary for the time being.”
ECHA took the view that “[t]his would need to be an adaptable check-list, i.e. different
based on each agency’s mandate. It could be divided in two parts, one related to the
mandate of agencies and the other related to general aspects flowing from the
Charter, such as good administrative behaviour, access to documents, non-
© FRA 27
discrimination, anti-harassment”. EU-OSHA pointed out that “[w]hile a checklist is a
good idea, there may be some difficulty in ensuring that the checklist is specific enough
to be useful, while being applicable to all Agencies.” Frontex noted that such a checklist
would need to be continuously updated as the Charter is a living instrument.
Figure 5: Acceptance of different ways to promote fundamental rights: checklists
QUESTION 5b: Developing a Charter checklist to document and assess your institutional practice and
making sure that the Charter is used
(38 /42 Responses)
18
16
14
12
10 17
8 14
6
7
4
2
0
CEPOL, Europol, ESCEL ECDC, EASA, EMA, CPVO, ENISA, CDT, INEA, BBI JU,
JU, SatCen, EIOPA, ERA, ECHA, EU OSHA, ACER, EACEA
FRA SESAR, Eurojust, EFSA, CS2 JU, F4E, EUIPO,
ERCEA, ESMA, EFCA, CHAFEA, EMCDDA
EEA, , EU-LISA, GSA, EIT, FRONTEX,
ETF,EMSA Eurofound
Source: FRA, 2018
Opinions were also divided on the creation of external and/or internal focal points on
fundamental rights within agencies (see Figures 6 and 7). This appears to have to do
with the fact that some agencies already have such a mechanism (e.g. Frontex). Other
agencies argued that it would add an extra layer of administration (the European
Securities and Markets Authority (ESMA)) or that it would be difficult to put in place in
small agencies (SESAR). Another comment was that a focal point could be useful
“primarily for participating in relevant inter-institutional exchanges and coordinating
the related information flow”.
© FRA 28
Figure 6: Acceptance of different ways to promote fundamental rights: focal points
(external)
QUESTION 5d: Appointing a focal point in your agency to proactively engage in implementing and
systematically monitoring the fundamental rights policy of your agency and to help ensure that threats
to fundamental rights in the agency’s external functioning are addressed
(38 /42 Responses )
18
16
14
12
10 17
15
8
6
4 6
2
0
FRONTEX, EIOPA, ECDC, EASA, ACER, ERA, ESMA, SatCen, EACEA, CS2
ESCEL JU, Europol, ECHA, CPVO, EMA, JU, CDT, INEA, EU OSHA,
CEPOL, FRA Eurojust, EMCDDA, SRB, SESAR, BBI JU, EUIPO, GSA,
EFSA, ERCEA , EIT, EFCA, EEA, Eurofound, ENISA,
EMSA F4E, EU-LISA, ETF
Source: FRA, 2018
© FRA 29
Figure 7: Acceptance of different ways to promote fundamental rights: focal points
(internal)
QUESTION 5e: Appointing a focal point in your agency to proactively engage in implementing and
systematically monitoring the fundamental rights policy of your agency and to help ensure that threats
to fundamental rights in the agency’s internal functioning are addressed
(38 / 42 Responses)
20
18
16
14
12
19
10
8 14
6
4 5
2
0
Europol, EIOPA ECDC, GSA, EASA, ACER, ESMA, CDT, INEA, EU OSHA,
ESCEL, ETF, EMSA ERA, ECHA, CPVO, SESAR, BBI JU, EMA, EACEA, CS2 JU,
Eurojust, EMCDDA, EFSA, EUIPO, CHAFEA, Eurofound,
EFCA, ERCEA, ENISA, SRB, SatCen, EEA, EU-LISA
EIT, CEPOL, FRONTEX, FRA
Source: FRA, 2018
Many respondents did not see deepening engagement with relevant stakeholders,
though generally acknowledged as important, as a key area for further development
(see Figure 8). From the explanations of responses, it appears that some agencies feel
that they already engage extensively in such dialogues (e.g. Frontex through its
Consultative Forum or EU-OSHA through its tripartite Governing Board representing
Governments, Employers, and Workers). Others noted that specific fundamental rights
stakeholder engagement would be very resource-intensive, and therefore difficult to
carry out without additional resources (e.g. ECHA, EMCDDA). Other agencies thought it
would not work due to the technical nature of their operations (EU-LISA) or felt that it
was not particularly relevant to their mandate (e.g. BBI JU, EFSA, ESMA, ENISA). At the
same time, some agencies noted that they would be open to the idea (Europol). Based
on its mandate as an executive agency, the Single Resolution Board (SRB) suggested
that “[i]n order to ensure alignment with the European Commission and consistency
among the various agencies, it would be advisable to develop a coordinated dialogue
with relevant human rights stakeholders in a centralised manner”.
© FRA 30
Figure 8: Acceptance of different ways to promote fundamental rights: dialogue
with stakeholders
QUESTION 5g: Developing a dialogue with relevant human rights stakeholders (e.g. National Human Rights
Institutions) on the Charter and fundamental rights issues relevant to your agency’s mandate and activities
(39/42 Responses)
18
16
14
12
10
17 17
8
4
5
2
0
ERCEA, FRONTEX, ECDC, EIT, EFCA, SatCen, EFSA, CDT, SESAR JU, INEA,
ESCEL JU, CEPOL, FRA GSA, EASA, ACER, ERA, EU CPVO, ECHA, BBI JU, EACEA,
OSHA, EIOPA, Eurojust, CS2 JU, CHAFEA, EMCDDA
EUIPO, EEA, Eurofound, SRB, ESMEA, ENISA, F4E,
Europol, EMA, ETF EU-LISA, EMSA
Source: FRA, 2018
There was considerable enthusiasm for further promoting the declaration signed
on fundamental rights issues by all agencies in 2015: the vast majority of agencies
considered this to be either very good, or good and feasible. EFSA noted that “a
proactive promotion of the declaration that was signed by all EU agencies in 2015
is desirable to allow staff members to know the fundamental rights context behind
EU activities. As fundamental rights are included in the EFSA legal and policy
documents, it is therefore extremely important that staff members are aware of
the fundamental rights on which EFSA documents are based”. CEPOL argued that
“[i]In the context of our learning and training activities as well as in our training
material on fundamental rights issues, the declaration will be a basis for any
content and thus awareness of law enforcement officers can be raised”. EIOPA
pointed out that the declaration “will be communicated to the staff during HR
induction sessions and will be published on EIOPA’s intranet”. SESAR suggested
inserting the Charter and declaration in the Welcome Pack for newcomers. ECSEL
JU proposed that a short video could also help.
© FRA 31
Figure 9: Acceptance of different ways to promote fundamental rights: declarations
QUESTION 5a: Proactively promoting the declaration that was signed by all EU agencies in 2015
(40 / 42 Responses)
25
20
15
25
10
13
5
2
0
EU-LISA, CEPOL, GSA, BBI ECDC, EASA, Cedefop, CDT, INEA, EMSA
JU, EIOPA ACER, ERA, CPVO, ECHA,
EU OSHA, Eurojust, SESAR JU, EFSA, EEA, EMA,
Europol, ESCEL JU, SatCen, EACEA, CS2 JU, EUIPO,
SRB, FRA, ETF EMCDDA, ERCEA, ESMEA,
ENISA, F4E, EIT, REA,
FRONTEX, EFCA, Eurofound
Source: FRA, 2018
Finally, adopting a fundamental rights strategy was seen by most agencies to be less
feasible or useful (Figure 10). A number of agencies noted they did not see much
added value (INEA, the Single European Sky ATM Research Joint Undertaking (SESAR
JU), ERCEA, EMA) or that this was already covered by their operational planning (e.g.
Europol) or founding regulation (Frontex). EFSA noted that “a fundamental rights
assessment has already been performed by Legal Affairs Unit when adopting specific
measures, for instance when organizing the training of Ethics Adviser”. ECHA
suggested that “it might be worth exploring whether, instead of a separate strategy
document, the annual and multi-annual work plans of the agencies could contain a
section on the strategy. These work plans are also adopted in most cases by the
Management Boards, therefore they would be no less binding than a separate strategy
document adopted by the MB. Similarly, instead of the planning phase, a retrospective
approach might be taken, i.e. including steps taken by the agency to mainstream the
Charter could be reported in each agency’s annual/general report”.
© FRA 32
Figure 10: Acceptance of different ways to promote fundamental rights: strategy
QUESTION 5c: Adopting a fundamental rights strategy and mainstreaming the Charter across all
operational projects and internal activities
(39 / 42 Responses)
25
20
15
22
10
11
5 6
0
EFSA, FRONTEX, CEPOL, ECDC, EASA, CDT, CPVO, ESMEA, SatCen, CS2 JU,
ESCEL JU, Europol, FRA ECHA, EACEA, Eurojust, EU OSHA, ERA, INEA,
EUIPO, ERCEA, ENISA, ACER, INEA, SESAR JU,
EFCA BBI JU, EMA, EIOPA,
EMCDDA, GSA, F4E, EEA,
EIT, Eurofound, EU-LISA,
ETF, EMSA
Source: FRA, 2018
FRA Opinion 2: The Charter’s relevance for EU agencies

All EU agencies are bound by the Charter of Fundamental Rights. FRA consulted all EU
agencies; this revealed that the majority view their mandates as having some
relevance to the implementation of the Charter. The agencies provided a rich spectrum
of examples in this regard. However, their founding documents – many adopted before
the Charter entered into force – hardly refer to the Charter or to fundamental rights
more generally. Only very few contain specific fundamental rights-protection
mechanisms. Moreover, when consulted on various concrete proposals to increase the
Charter’s presence in their internal and external work, the agencies’ comments partly
conveyed a certain skepticism. (The proposals ranged from soft forms of cooperation
to more operational proposals, such as establishing focal points.) At the same time,
some of the proposals were very well received by the agencies – such as the proposal
to expand available training on fundamental rights.
As a reminder of agencies and other bodies’ legal obligations under the Charter, the
EU legislator should insert a reference to fundamental rights whenever drafting or
© FRA 33
revising regulations or decisions setting up such agencies or bodies. Such an explicit
reference in the agencies’ founding documents would increase awareness of the
Charter and of the agencies’ means to promote Charter rights within their respective
mandates. In addition, the EU legislator should carefully consider introducing, on a
case-by-case basis, more operational mechanisms for the protection and promotion
of fundamental rights – such as Charter focal points and fundamental rights officers.
The EU agencies should regularly exchange experiences and practices with regard to
implementing the Charter, including in the various agencies’ networks. Such
exchanges should concretely assess the possibility of taking steps to further the
protection and promotion of fundamental rights within and outside of the agencies.
Steps to consider include increasing fundamental rights-related training,
collaborating with other agencies and stakeholders on fundamental rights and
adopting relevant policy documents and mechanisms.
© FRA 34
2. National level: implementation of the Charter in
national policies, legislative processes and case law
As mentioned, the Charter addresses and binds the “institutions, bodies and agencies
of the Union”. It binds the Member States only “when they are implementing Union
law” (Article 51 of the Charter). In contrast to the ECHR, the Charter’s scope of
application is limited and not easy to delimitate.30 To determine whether the Charter
applies at national level, it is necessary to assess on a case-by-case whether or not
the Member State is acting within the scope of EU law.
The academic discussion surrounding the often-heard assumption that 80% of national
law is directly and indirectly influenced by EU legislation shows that it is impossible to
precisely indicate in quantifiable terms how much of national law is ‘Europeanised’.31
It is, however, common knowledge that significant parts of national law-making fall in
areas that are (co-)defined by EU law. Against this background, one would assume
that the Charter plays a visible and relevant role in national legal systems. The
information collected for this Opinion does not match this expectation.
It is easy to study the Charter’s use at EU level – for instance, via the database Eur-Lex
or the European Commission’s annual reports. It is far more difficult to track and
analyse the decentralised use of the Charter in national parliamentary debates, impact
assessments of bills, legislation and case law, as they unfold in the 28 different
national systems. Academic literature on the Charter remains rich, but tends to focus
on general aspects or the Charter’s overall scope and effect at national level – and not
on its concrete use by Member State authorities.32
In any event, within the EU the protection of fundamental rights can only be realised –
as the Council of the European Union rightly points out – “with the support and active
cooperation of all stakeholders at EU as well as at national level”.33 EU law is mainly
implemented at national level, by national actors and not by the EU itself. This implies
that the Charter and its implementation depends mainly on national-level actors. This
turns national courts, legislators and administrations into vital ‘Charter agents’. The
European Parliament has also acknowledged and stressed that “[n]ational authorities
(judicial authorities, law enforcement bodies and administrations) are key actors in
giving concrete effect to the rights and freedoms enshrined in the Charter”.34
30
Detailed guidance in this regard is provided for instance in the upcoming FRA handbook Guidance on the application
of the Charter of Fundamental Rights of the European Union in law and policymaking at national level.
31
See, for example, Töller, A. E. (2008), ‘Mythen und Methoden. Zur Messung der Europäisierung der Gesetzgebung
des Deutschen Bundestages jenseits des 80-Prozent-Mythos‘, Zeitschrift für Parlamentsfragen, Vol. 39, No. 1, pp.
3-17.
32
There is, however, an increasing interest, especially with regard to the use of the Charter by national courts. See,
for example, Burgorgue-Larsen, L. (2017), La Charte des droits fondamentaux saisie par les juges en Europe, Paris,
Pedone; Ministry of Foreign Affairs of Poland (2016), Application of the EU Charter of Fundamental Rights by Polish
Courts, Bilingual conference proceedings; or the upcoming conference on 22 and 23 March 2019 organised by the
Bonavero Institute of Human Rights and the Mansfield College (University of Oxford) in cooperation with FRA.
33
Council of the European Union (2017), Conclusions on the application of the EU Charter of Fundamental Rights in
2016, adopted on 12 October 2017.
34
European Parliament (2015), Resolution of 8 September 2015 on the situation of fundamental rights in the
European Union (2013–2014) (2014/2254(INI)), Strasbourg, 8 September 2015, para. 20.
© FRA 35
2.1. The Charter and governments: lack of policies promoting the
Charter and need for more pro-active stance
According to Eurostat data, in 2012, 64% of the population across the EU had heard of
the Charter. But only about one-sixth of them said they actually knew what it was.35
This awareness-gap does not appear to be prominently addressed by any national
policies. Moreover, it appears that even amongst persons who deal with fundamental
rights, awareness of the Charter is not necessarily high. This was also the perception
expressed by civil society stakeholders in a consultation FRA carried out during the
summer of 2018, in connection with this Opinion. FRA sent a questionnaire on the
Charter to the (then-) 714 participants in its Fundamental Rights Platform, which brings
together civil society actors active in the field of fundamental rights across the EU. 114
organisations replied to this anonymous consultation in a complete manner.36
When asked whether they thought that human rights civil society actors in their
country were sufficiently aware of the Charter and its added value, 91 of the 114
respondents replied in the negative and added that the Charter is not adequately used
by civil society actors in their activities. Remarkably, they were of the opinion that
national courts, educational institutions, and government at local and national levels
are using the Charter to an ever lesser extent. Only National Human Rights Institutions
and Equality Bodies were deemed to make more use of the Charter.37
As mentioned, it appears that no Member State policies address this awareness gap.
Even when addressing Member State representatives, it is difficult to identify policies
that openly and specifically aim to promote the Charter’s application – as required
under the Charter.38 For the purpose of this Opinion, FRA asked all of its National Liaison
Officers in the 28 governments to identify such policies. Eleven replied explicitly that
either such policies do not exist or that they were not aware of them. Another handful
of respondents did not reply to this specific question. This situation is also reflected in
the lack of awareness amongst civil society actors concerning government policies
promoting the Charter.
35
Eurostat (2012), Flash Eurobarometer 340.
36
Seventy-six replies were incomplete and not taken into consideration.
37
Compare this assumption with studies in this regard which paint a rather mixed picture. See, for example, Moraru,
M.B. (2017), Report on the use of the EU Charter on Fundamental Rights by National Human Rights Bodies and
Practical Guidelines on the Strategic Use of the EU Charer by National Human Rights Bodies, Centre for Judicial
Cooperation, 2017; Porceda, M.G. (2017), Use of the Charter of Fundamental Rights by National Data Protection
Authorities and the EDPS, Centre for Judicial Cooperation, 2017.
38
Article 51(1) of the Charter.
© FRA 36
Figure 11: Awareness of Charter-related policies among participants in the
Fundamental Rights Platform
Are you aware of any government policies at

national, regional or local level in your country
that promote the implementation of the Charter
of Fundamental Rights?
25%
Yes
No
75%
Source: FRA, 2018
However, a few promising practices stick out. For instance, in Finland, the
government’s 2014 human rights report already noted the importance of the EU in the
promotion of fundamental rights and stressed the importance of making the Charter
known among the general public.39 In 2016, the Ministry of Justice prepared a
Memorandum on the Interpretation and Implementation of the EU Charter for
fundamental rights.40 The objective of the memorandum is to provide practical
assistance for Finnish civil servants in the EU and national legislative work, and in
particular when considering questions relating to the application of fundamental rights
in EU law. The memorandum seeks to provide practical help in identifying situations
where the EU Charter applies, and to understand how it differs from other fundamental
and human rights instruments, especially the ECHR and the national constitutional
rights.
Sweden in 2016 announced a review of the Charter’s application as part of the
government’s human rights strategy.41 At the request of the government, the
University of Uppsala carried out a study which analysed the courts’ application of the
Charter, and potential reasons as to when the Charter is used in a larger or lesser
degree, or not at all. And it identified good examples of how the Charter’s application
is secured in other Member States and in EU institutions, organs and agencies.42 The
study identifies the fact that the Charter is still a young instrument as one reason why
its use is still rather limited, noting that it also took a while until the ECHR was known
and used in legal practice.
39
See Finland (2014), Government Human Rights Report 2014 (Ulkoasiainministeriö, Utrikesministeriet,
Valtioneuvoston ihmisoikeusselonteko 2014), Publications of the Ministry of Foreign Affairs (Ulkoasiainministeriön
Julkaisuja), June 2014.
40
Finland, Ministry of Justice (2016), Document OM 1/469/2016, available only in Finnish. An updated version of the
Memorandum is currently in progress and is expected to be finalised in late autumn.
41
Sweden, Ministry of Culture (2016, Official letter 2016/17:29 The government’s strategy on human rights on a
national level (2016/17:29 Regeringens strategi för det nationella arbetet med mänskliga rättigheter, Skr.
2016/17:29), 13 October 2016.
42
The assignment to the University of Uppsala is available here.
© FRA 37
Poland also showed interest in better understanding how the Charter is used in daily
practice. Focusing on the judiciary, the Polish foreign ministry in 2015 convened a
conference, which resulted in a collection of essays analysing the Charter’s use by
different branches of the Polish judiciary.43
Apart from such rather exceptional examples, it is possible to identify some cursory
Charter references in policy documents that promote human rights or have a
fundamental rights dimension.44 The picture is more promising when looking at a
specific form of state policies, namely the training of legal practitioners. In this context,
it is easier to identify examples of states launching Charter related initiatives (including
those launched by transnational research cooperation efforts),45 for which they often
received specific EU funding.
FRA Opinion 3: Policies promoting the Charter’s use at national level

FRA’s consultations made clear that there is a lack of national policies that promote
awareness and implementation of the Charter. The instrument entered into force only
nine years ago, but Member States are obliged to both respect the Charter’s rights and
to “promote the application thereof in accordance with their respective powers”
(Article 51 of the Charter). Legal practitioners – especially those in national
administrations, the judiciary and national parliaments – have a central role to play in
the Charter’s implementation. It is vital for them to be fully aware of the Charter’s
potential to effectively fulfill that role. At the same time, there is a need to increase
awareness among rights holders so that rights are invoked and implemented in
practice.
EU Member States should ensure that targeted training modules are offered for
national judges and other legal practitioners on a regular basis and in a manner that
meets demands and guarantees sufficient ownership.
Member States should aim to regularly assess the Charter’s actual use in national
case law and legislative and regulatory procedures, with a view to identifying
shortcomings and concrete needs for better implementation of the Charter at
national level.
Member States should launch initiatives and policies aimed at promoting awareness
and implementation of the Charter at national level, so that the Charter can play a
relevant role wherever it applies. Such initiatives and policies should be evidence-
43
Poland, Ministry of Foreign Affairs (2016), Application of the EU Charter of Fundamental Rights by Polish Courts,
Bilingual conference proceedings. To maximise the practical impact of the legal analysis, the ministry announced
that the publication will be distributed in print to appellate and district courts, administrative courts, national and
regional organisations for legal professionals, and academic centres/universities.
44
Greece, General Secretariat for Transparency and Human Rights, Hellenic Ministry of Justice (Γενική Γραμματεία
Διαφάνειας και Ανθρωπίνων Δικαιωμάτων, Υπουργείο Δικαιοσύνης) (2014), Ηuman Rights Νational Αction Plan
2014–2016 (Εθνικό Σχέδιο Δράσης για τα Ανθρώπινα Δικαιώματα), 2014; Bulgaria, Government (Министерски
съвет) (2012), Национална стратегия на Република България за интегриране на ромите (2012–2020),
13 March 2012; Bulgaria, Министерски съвет, Национална стратегия за интеграцията на лицата,
получили международна закрила в Република България (2014–2020), National Roma integration strategy of
the Republic of Bulgaria (2012-2020). In France, some of the ongoing citizens consultations on Europe are
dedicated to fundamental rights issues. For more information visit the following website.
45
See, for example, the project ‘CFREU – Making the Charter of Fundamental Rights a Living Instrument’, which was
co-financed by the EU and carried out in Austria, Italy, Poland and Croatia. Another EU-funded project was
‘ACTIONES’ (Active Charter Training through Interaction of National Experiences), coordinated by the EUI Centre for
Judicial Cooperation in Italy. It involved 17 partners, including nine national institutions responsible for training
judges and lawyers. Another project which just concluded is ‘Judging the Charter’ – run by expert institutions from
Austria, Croatia, Greece, Italy and Poland.
© FRA 38
based, building on regular assessments of the use and awareness of the Charter in
the national landscape.
2.2. The Charter and the legislature: impact assessments, legal

scrutiny and the potential of a fully-fledged ‘Article 51
screening’46
Charter’s role in legal scrutiny
In most Member States, there is an explicit obligation to check bills against national
fundamental rights standards. Moreover, many national systems establish the explicit
obligation to ensure draft legislation (or regulations) is assessed for its compatibility
with international law and/or EU law. The European Convention on Human
Rights (ECHR), which, in contrast to the Charter, is not limited to situations falling within
the scope of EU law, is often mentioned in such procedural rules as an explicit
benchmark that bills have to be checked against. An example serves Bulgaria where
bills have to come with a statement by the Ministry of Justice certifying the compliance
with the ECHR and the case law of the EctHR.47 The Charter to the contrary is hardly
referred to in such procedures which risks negatively affecting the use of the Charter.
FRA has in the past collected and analysed, on an annual basis, examples of the Charter
being referred to when draft national legislation was scrutinised from a legal
perspective. It asked its research network to identify, in all EU Member States,
examples of where the Charter played a relevant role. This exercise showed that it
was often not possible to identify three such examples. Very often, the examples given
concerned instances where the Charter did not make any difference to the legislative
file.48 In other examples, the Charter was peripherically referred to but was not actually
applied in the scrutiny itself.49
Examples from practice show that such fundamental rights scrutiny can usefully affect
draft legislation and increase sustainability of the bill by making it Charter-compliant,
hence pre-empting future contestation of the law in this regard. To give an example
from criminal law: a draft law introduced by the president of Lithuania stipulated,
among other things, that an alien’s request for a residence permit shall not be
considered if a relevant institution has received information that the alien is suspected
of committing a crime abroad.50 The European Law Department of the Ministry of
Justice issued an opinion pointing out that such a provision may contravene the
presumption of innocence (Article 48 of the Charter).
Obviously, procedural rules regarding how bills are drafted at national level differ
widely. Some require draft laws to come with explicit reasoning, a separate
accompanying explanatory report and an opinion or letter analysing the draft’s
46
Some of the national legislation reflected in this section reflects the situation in force in 2015 and was not
checked for updates that might have taken place in the meantime.
47
Bulgaria, Normative Regulations Act (Закон за нормативните актове), 3 April 1973, Art. 28, para. 3 as revised in
2016 (in force since 4.11.2016).
48
For examples of legal scrutinies and/or impact assessment where the Charter was referred to see the Charter
chapters of the FRA Fundamental Rights Report as published since 2014.
49
By way of illustration, see Sweden, Council of Legislation (Lagrådet) (2015), Tax surcharge: Prohibition against
dual trials and other issues concerning the rule of law (Skattetillägg: Dubbelprövningsförbudet och andra
rättssäkerhetsfrågor), Report from the Council of Legislation, 1 June 2015.
50
Lithuania, Law on the legal status of aliens (Įstatymas „Dėl užsieniečių teisinės padėties“), Art. 26(1).
© FRA 39
compatibility with EU law.51 But even then, the way in which such procedural norms
refer to EU law differs. For instance, in Italy, bills are assessed through the lens of
relevant EU case law, explicitly also referring to pending infringement procedures.52
Overall, it appears that, in most Member States, fundamental rights are not explicitly
mentioned as part of the requirements of such an ‘EU-law check’. In this sense, the
procedure in Finland, which explicitly requires examining the bill’s compatibility with
EU fundamental rights, is the exception rather than the rule.53
Charter’s role in impact assessments
The Charter can already play a role before the stage of legal scrutiny, namely during
the assessment of potential impacts of a legislative project. In contrast to legal
scrutiny, an impact assessment is an exercise that is not strictly legal in nature; it takes
place when a bill has not yet been fully defined, so that various legislative options can
be compared. Such assessments mostly focus on economic, environmental and social
impacts of bills. However, Member States’ procedures differ and the legal compatibility
check and the assessment of impacts are not necessarily done separately.
By way of illustration, the French impact study (Étude d’impact) can assess not only
the bill’s legal compatibility but also its potential impact. Other countries may deal with
a bill’s potential impact indirectly as part of the legal scrutiny.54 Some Member States
carry out a full-fledged impact assessment only when they expect significant effects.
In Estonia, for instance, the rules for ‘good legislation’ envisage an impact assessment
when ‘significant’ impacts are foreseen, such as on economics, security and foreign
relations, the environment, regional development or organisation of public
administration.55
Even where specific procedures are available for assessing impacts of draft legislation,
they often do not look at fundamental rights as a specific category in relation to which
the impact of a draft law should be assessed. By way of illustration, in Croatia, the
assessment of impacts includes an analysis of positive and negative effects of
regulations on the economy (including financial effects), social welfare and the
environment – but the effects on human rights are not explicitly mentioned.
Consultations with the public are, however, conducted simultaneously, and comments,
suggestions and opinions are to be taken into consideration. Since NGOs most
frequently address and identify impacts related to fundamental rights, this sort of
impact-assessment exercise de facto also covers fundamental rights.56
51
By way of illustration: Bulgaria, Normative Regulations Act (Закон за нормативните актове), adopted
3 April 1973 (last revised in 2016), Art. 28, para. 2 (5); Bulgaria, Regulation on the Work of the Council of Ministers
and Its Administration (Устройствен правилник на Министерския съвет и неговата администрация),
2 October 2009, Art. 35, para. 1 (3); Estonia, Government regulation No. 180 of 22 December 2011 (Hea
õigusloome ja normitehnika eeskiri, VV 22.12.2011 määrus nr 180), Art. 43, para. 1 (5); and Slovakia, Legislative
rules of the Government of the Slovak Republic (Legislatívne pravidlá vlády Slovenskej Republiky), Art. 3.
52
Italy, Directive by the Prime Minister on the timing and modalities of the tecnical-normative analysis (Direttiva del
presidente del consiglio dei minsitri, tempi e modalita dell’analisi tecnico-normativa, ATN), 10 September 2008.
53
Finland, Ministry of Justice (2004), Hallituksen esitysten laatimisohjeet, Helsinki, Edita Prima Oy; Finland, Ministry
of Justice, Lainkirjoittajan opas.
54
The legal proportionality check, for instance, will assess the bill’s potential impact to select, from various potential
measures, the one that interferes least with fundamental rights.
55
Estonia, Hea õigusloome ja normitehnika eeskiri, määrus nr 180, 22 December 2011, Art. 46.
56
Croatia, Regulations Effects Evaluation Act (Zakon o procjeni učinaka propisa), Official Gazette No. 90/11; Code of
practice on Consultation with the Interested Public in Procedures of Adopting Laws, Other Regulation and Acts
(Kodeks savjetovanja sa zainteresiranom javnošću u postupcima donošenja zakona, drugih propisa i akata), Official
Gazette No. 140/09.
© FRA 40
In the Slovak Republic, too, a standardised methodology for assessing selected impacts
is in place, but does not contain fundamental rights as a specific category. The potential
impacts are divided into seven main thematic areas: public finances, social situation
within the country, employment, enterprising entities, functioning of markets, the
environment and information technologies in society.57 Finland offers an example of a
procedure reminding the legislator to address standard questions on the potential
fundamental rights implications of bills (including questions on the right to
participation, the right to equality, children rights, gender equality or data protection).58
In the Netherlands, the “Integrated Impact Assessment Framework for Policy and
Legislation” (IAK) was adopted in 2011. It provides civil servants with guidance on a
number of issues, including on fundamental rights at the start of a policy or legislation
process.59 Since 2014 it also contains a manual explicitly focused on the application of
the Charter of Fundamental Rights.60
Why there is a need for a stronger role of the Charter
That the Charter appears underused in the preparation of national law- and policy-
making is counterintuitive, given that it can safely be assumed that a large part of
national law-making includes elements that fall within the scope of EU law and hence
should prompt practitioners dealing with the legislative file to engage in what one
could call an ‘Article 51-screening’ by:
a) checking in detail whether the legislative file builds a scenario that, according
to CJEU case law, falls within the scope of EU law;
b) identifying potential limitations of Charter rights;
c) analysing whether such limitations are at all legally possible under the Charter
and, if so, whether they can be justified under the conditions laid down in
Article 52(2) of the Charter;
d) identifying any potential to promote the application of Charter rights and
principles.
The Charter also covers socio-economic rights (see Articles 27–38 of the Charter) that
are not included in the ECHR. Moreover, the Charter makes explicit certain rights that
are as such not to be found in the wording of the ECHR, including in the area of equality.
See, for instance, the rights of the child (Article 24), the rights of the elderly (Article
25) or the integration of persons with disabilities (Article 26).
In certain contexts, the Charter is not only more explicit than the ECHR but also provides
more protection. This is the case in the context of the right to an effective remedy and
a fair trial (Article 47), which is not limited to criminal or civil law procedures but also
applies to administrative procedures of all kind. For instance, Article 47 applies to
asylum procedures. In fact, the Charter also adds to the visibility of human-rights
entitlements compared to texts of national constitutional law. There are many Charter
provisions that would find an explicit provision of constitutional rank corresponding to
these Charter rights only in less than half of the EU Member States. Such rights include
not only socio-economic rights – such as the right of access to placement services
(Article 29), the protection in the event of unjustified dismissal (Article 30) or workers’
57
Slovakia, Ministry of Economy (Ministerstvo hospodárstva SR), Jednotná metodika.
58
Finland, Ministry of Justice, Manual for Law Drafting – Guidelines for Drafting National Legislation, last updated on
18 August 2015, and EU Manual for Law Drafting, last updated on 27 March 2012.
59
See this website.
60
See section 6.2.1. of the framework.
© FRA 41
right to information and consultation within the undertaking (Article 27) – but also
rights such as the right to access to documents (Article 42).
Although the Charter only applies within the scope of EU law, it is nevertheless
worthwhile to consult the Charter because it might draw attention to rights that are
not prominently enshrined in the national constitution or the ECHR but are
nevertheless protected under another piece of national law or the case law of the
European Court of Human Rights or an ECHR protocol.
Against this background, it would be of added value for national procedural provisions
regulating how legislators carry out legal scrutinies and/or assess impacts to refer not
only to national constitutional rights and the ECHR. These procedures should also
explicitly refer to the Charter of Fundamental Rights. If they make no such explicit
reference, there is a risk that the Charter’s potential is not fully used in law- and policy-
making at national level. At the same time, a more prominent use of the Charter should
not discourage actors from referring to international or other European human rights
instruments as they might add value in the specific context.
FRA Opinion 4: The Charter and legislative processes in EU Member States

Article 51 (field of application) of the EU Charter of Fundamental Rights provides that
all national law implementing EU law has to conform with the Charter. Although a
significant proportion of national bills contains elements falling within the scope of EU
law, the available evidence suggests that the Charter is used neither frequently nor in
detail in legislative impact assessments and legal scrutiny of bills. Reference is often
made to national and international law, but not to the Charter. Adding the ‘Charter
perspective’ allows detecting, at an early stage, both possible limitations of Charter
rights and the draft legislation’s potential to promote Charter rights and principles.
EU Member States should review their national procedural rules on legal scrutiny and
impact assessments of bills from the perspective of the EU Charter of Fundamental
Rights. Such procedures should explicitly refer to the Charter, just like they do to
national human rights instruments, to minimise the risk that the Charter is
overlooked.
Member States should consider a more consistent ‘Article 51 screening’ in the
legislative process to assess at an early stage:
 whether or not a legislative file (partly) falls within the scope of EU law
and thus also the Charter;
 whether the legislative proposal could potentially limit Charter rights;
 whether such limitations are in line with Article 52(2) of the Charter;
 whether the legislative proposal has the potential to proactively
promote the application of Charter rights and principles.
Standardised handbooks outlining practical steps to take to check whether the
Charter applies – which so far exist only in very few EU Member States – would be
useful tools for legal practitioners. FRA’s forthcoming Handbook on the applicability
of the Charter will serve as a model for such tools.
© FRA 42
2.3. The Charter and the judiciary: some cases clearly show the
Charter’s potential
FRA collects, on an annual basis, national case law referring to the Charter. It is not
possible every year to identify judicial decisions for each Member State in which the
Charter plays a relevant role in courts’ reasoning.61 To the contrary, the collected
evidence suggests that the Charter’s use in national courts is often rather limited,
especially as regards quality references to the Charter. At the same time, many
interesting national court decisions underline the Charter’s potential in the national
judiciary.
Use of the Charter before national courts and the difficulty of measuring its ‘impact’
National procedural laws vary substantially in the degree to which the arguments put
forward by the parties determine the scope of proceedings. Consequently, whether or
not a court can raise a ‘Charter argument’ independently varies from state to state.62
Moreover, the use of the Charter diverges within Member States from court to court.63
And the availability of data is limited as the case law of lower courts is not accessible
and searchable in all countries. It is also difficult to define the amount of Charter-
relevant court decisions to be considered as ‘normal’ in a given country. It is also not
helpful to compare the Charter’s use with the use of the ECHR, given that the Charter
only applies within the scope of EU law.
The rather low number of national court decisions in which the Charter plays a
relevant64 role cannot be attributed solely to low awareness of the Charter. Over the
past five years, national judges – and not the parties – raised Charter-related
arguments in a rather constant share of around 50 % of the decisions communicated
to FRA. This demonstrates that judges have a certain awareness of the Charter.
One reason why the Charter’s use before national courts is limited appears to be that
it is difficult for legal practitioners to assess whether or not the Charter applies in a
concrete case. This is confirmed both by anecdotal evidence65 and by the sample of
judicial decisions collected by FRA over the years. In the analysed court decisions, the
judges hardly addressed, let alone analysed in detail, the question of whether or not
the Charter applies. Cases in which national courts deal with the Charter’s applicability
in some detail appear to be the exception rather than the rule.66 Often, the analysed
court decisions give the impression that the judges wanted to ‘play it safe’ by
‘packaging’ together various human rights sources. In fact, looking at the past 5 years,
in close to two-thirds of the cases analysed by FRA, the Charter was referred to next
to the ECHR. Very often national constitutional provisions and sometimes even
61
This is not to say that the Charter would not be often referred to, especially at the level of lower courts. For instance,
in France in 2013-2014, administrative courts mentioned the Charter in more than 1,200 decisions. See the
intervention by Jean-Marc Sauvé, Vice-président du Conseil d'État, at the conference organised by the European
Union on 17 December 2014.
62
See Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (2012),
General report, p. 10.
63
By way of illustration, in 2017 in Austria, the Supreme Court referred to the Charter 14 times, the Constitutional
Court did so 34 times and the Supreme Administrative Court did so 140 times.
64
A relevant role meaning that the Charter was analysed in detail in the court’s reasoning and/or where the reference
to the Charter had an impact on the outcome of the case.
65
When FRA provides training to legal practitioners, participants regularly refer to the unclear scope of application of
the Charter as one stumbling block preventing a more regular use of the EU instrument.
66
By way of illustration, one can point to the following judicial decisions: Ireland, High Court, Case IEHC 246s,
Judgment of 30 April 2013, especially para. 50; Cyprus, Supreme Court, Civil Applications Nos 216/14 and 36/2015,
Decision of 27 October 2015; France, State Council, No. FR:CESSR:2015:383664.20150511, Decision of
1 May 2015; Denmark, High Court, Case 236/2014, 2 June 2016.
© FRA 43
international human rights conventions were also referred to. This phenomenon,
though quite natural, makes it even more difficult to assess the Charter’s impact on
the outcome of concrete cases.
Charter’s considerable potential for the national judiciary
The above is not meant to suggest that the Charter is not an important tool for the
national judiciary. The Charter already often makes a difference in national courts.
Most frequently, judges use the Charter to interpret national law in one or the other
direction. For instance, in a Swedish case, Article 24 of the Charter (rights of the child)
played a relevant role.67 The case concerned a man who had helped a family to cross
the border illegally. Normally, a person who is paid for assisting a foreigner’s entry into
Sweden is sentenced to three to four months in prison. However, in light of Article 24,
the court decided to change the prison time to a suspended sentence and community
service because the person concerned was motivated by the desire to help children.
Judicial practice illustrates that the Charter fulfills such an interpretative function even
in cases that do not fall within the scope of EU law, and in which the Charter is therefore
not formally applicable.68
Charter rights that are not mirrored in national constitutional law appear especially
likely to be used by national judges as a source of inspiration to close possible
protection gaps. Children’s rights, the right to good administration or consumer
protection are examples in this regard. A case from Slovakia concerned a telephone
company that took one of its clients to court for not paying his bills. The company
argued that, by affording specific protection to consumers, the Consumer Protection
Act interfered with the principles of a fair trial and equality of arms set out in the Slovak
Constitution and was hence unconstitutional. The court acknowledged that the Slovak
Constitution does not provide a specific right to consumer protection and that the
Charter thus provides a higher level of consumer protection than the constitution.
However, it found that, as the Charter is part of the national legal order, Slovakia is
bound by its provisions. The court also referred to the Consumer Protection Act’s
legislative history, which showed that the rationale for including the provision at issue
in the act was to address problems found in practice and to ensure effective protection
of consumers’ rights, embodied in Article 169 of the TFEU and Article 38 of the
Charter.69
The Charter is in some instances also used as a benchmark when reviewing national
law. In this context, it is noteworthy that, in 2012, the Constitutional Court in Austria
referred to the principle of equivalence and concluded that the rights of the Charter
can be invoked as constitutional rights and, within the scope of the Charter, constitute
a standard of review in the proceedings of constitutional complaints.70 That same year,
the Constitutional Court of Romania relied on the provisions of the Charter in its
constitutionality review, basing this on the Romanian constitution’s integration clause
in Article 148.71 Disapplying national law that is in contradiction with the Charter can
have major practical relevance for the individuals concerned. By way of illustration:
invoking Article 49 (principles of legality and proportionality of criminal offences and
67
Sweden, Skåne and Blekinge Court of Appeal, Case B 7426-15, 5 December 2016.
68
. By way of illustration, see Spain, Tribunal Constitucional, Case 167/2013, Judgment of 7 November 2013.
69
Slovakia, Regional Court Prešov, Case 17Co/286/2015, 28 June 2016.
70
Austria, Verfassungsgerichtshof, Case U466/11; U1836/11, Judgment of 14 March 2012.
71
Romania, Curtea Constituţională a României, Case 1021D/2012, Judgment of 20 November 2012.
© FRA 44
penalties) of the Charter, a Romanian court reduced a 26-year prison sentence to
10 years.72
There is no need for an explicit recognition of the Charter as a standard of
constitutional review for it to play a relevant role. For instance, in 2017, the
United Kingdom’s Supreme Court noted that fees introduced in 2013 by employment
tribunals contravened EU law’s guarantee of an effective remedy before a tribunal as
enshrined in Article 47 of the Charter. Because the fees were unaffordable in practice,
the Fees Order was deemed a disproportionate limitation on Article 47 in light of
Article 52 (1) of the Charter.73 In 2016, the Charter was invoked before the Czech
Constitutional Court in a case concerning a German national arrested and prosecuted
for being a member of a criminal group that trafficked drugs from the Czech Republic
to Germany.74 The court stressed the extended transnational protection of the ne bis
in idem principle as laid down in the Charter, compared with the more limited scope of
the corresponding constitutional provision. Consequently, the decisions of the
authorities involved in the criminal proceedings were annulled.
The added value of the Charter becomes apparent when considering the principles of
direct effect and supremacy associated with the nature of EU law. Some Charter
provisions can be seen as creating a “free standing right”. This was the wording used
by a UK court referring to paragraph 3 of Article 23 of the Charter, which states:75
“Every child shall have the right to maintain on a regular basis a personal relationship
and direct contact with both his or her parents, unless that is contrary to his or her
interests.” The provision precluded – in the eyes of the court – the deportation of a
Nigerian national who had been continuously resident in the United Kingdom for 25
years and whose two daughters were both British citizens, aged 13 and 11.
Another example from the United Kingdom is the Benkharbouche case, which
concerned two employees, one of the Sudanese embassy and one of the Libyan
embassy. Both made claims arising out of their employment and were met with pleas
of state immunity. These pleas were upheld by two separate employment tribunals
and both parties appealed. The claimants invoked Article 47 of the Charter and argued
that the State Immunity Act 1978 (SIA), which provides for state immunity in UK law,
should be disapplied to the extent the claims fell within the material scope of EU law.
The employment appeals tribunal addressed whether a direct application of the
Charter implies that national law contrary to the Charter must be disapplied in a claim
litigated between private individuals. The court concluded that, whereas the Human
Rights Act “does not permit the disapplication of any statutory provision, […] EU law
requires it where it concerns the material scope of EU law”; thus, for the claims covered
by EU law, certain provisions of the SIA were “to be disapplied”.76
This illustrates how the EU law principles of direct effect and supremacy provide the
Charter with additional teeth compared to other sources of law, such as e.g. the ECHR.
Although the UK Human Rights Act allows courts – only higher courts – to issue a
‘declaration of incompatibility’ when an act of parliament is not in line with the ECHR,
the act remains in force and it is only for parliament to amend the act. In contrast,
72
See Romania, Tribunalul Arad, Decision of 25 January 2016.
73
United Kingdom, Case UKSC 2015/0233, 26 July 2017.
74
Czech Republic, Constitutional Court, Case II. ÚS 143/16, 14 April 2016.
75
United Kingdom, Upper Tribunal (Immigration and Asylum Chamber), Case UKUT 106 (IAC), 13 January 2016. The
Constitutional Court of Austria recognised the direct applicability of the third paragraph of Article 47, which
stipulates that legal aid “shall be made available to those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice”. See Austria, Constitutional Court, Case G447/2015, 9 March 2016.
76
United Kingdom, Employment Appeal Tribunal, Case UKEAT 0401_12_0410, Judgment of 4 October 2013 and
Court of Appeal (Civil Division), No. A2/2013/3062, Decision of 5 February 2015.
© FRA 45
courts – including lower courts – that come across human rights enshrined in EU law
have to set aside contrasting national norms if EU human rights are directly applicable.
Where the Charter is most frequently used in national courtrooms
Other than the general provisions in Articles 51 and 52, the rights most frequently
used in the court decisions communicated to FRA – most of them high court decisions –
were procedural rights. The most prominent are Article 47 (effective remedy and fair
trial), Article 48 (presumption of innocence and right of defence) and Article 41 (right
to good administration). Substantive rights often used in the national court decisions
communicated to FRA over the past 5 years included: data protection (Article 8),
private and family life (Article 7), the rights of the child (Article 24), equality and non-
discrimination (Articles 20 and 21), but also the right to property (Article 17) and the
right to conduct a business (Article 16).77
Policy areas that most often appeared to generate national court decisions using the
Charter were issues related to (judicial cooperation in) criminal matters and civil
matters, but also asylum, border and immigration issues. Other policy areas often
reflected in the national court decisions communicated to FRA include employment
policies, social policy, non-discrimination and data protection.
National judges also use the Charter beyond its scope of application as defined by
Article 51. A good example is the right to good administration, laid down in Article 41,
which is explicitly limited to “institutions, bodies, offices and agencies of the Union” –
but which is also one of those provisions that find only in few constitutional systems
a corresponding provision. To give just one example: in 2015, a court in Italy
interpreted a national law in light of Article 41 of the Charter in a case that concerned
a complaint filed by a lawyer who was refused admission to the oral test of the bar
examinations by the Bar Examinations Board of the Ministry of Justice.78
Similar judgments can be found for other Charter rights. For instance, in an Italian case
concerning gender balance in an executive body of a municipality, the court referred
to Charter Articles 21 and 23, concluding that “a normative corpus exists and it should
become the tool for interpreting the domestic legal order”.79 Another Italian court
judgment, while recognising that the Charter did not apply to the case at hand, seemed
to say that this would not necessarily limit its interpretative value. The Italian court
underlined that the Charter was an expression of common principles of European legal
systems and therefore had – as a source of interpretation – a function within the
national legal system even outside the scope of EU law.80 All this confirms that the
inspirational role of the Charter goes beyond its scope as defined in its Article 51(1).
FRA Opinion 5: The Charter and its use before national courts
FRA regularly collects relevant decisions by judges. They paint a mixed picture of the
Charter’s use at national level. The number of judicial decisions in which courts refer
to the Charter in detail and/or where a reference to the Charter has an impact on a
case’s outcome appears low. At the same time, national case law shows that the
Charter is relevant both for individual rights holders and for the development of the
77
Compare in this regard Section 3.2. on preliminary ruling procedures.
78
Italy, Lazio Regional Administrative Tribunal, Decision No. 201509411 of 14 July 2015. See also Slovakia, Supreme
Court of the Slovak Republic, Case 10Sža/4/2016, 25 May 2016; Lithuania, Supreme Administrative Court, Case
eA-3282-822/2017, 18 April 2017; Slovakia, Supreme Court of the Slovak Republic, Case 10Sža/4/2016,
25 May 2016.
79
Italy, Regional Administrative Tribunal, Rome-Second section (Tribunale regionale amministrativo (TAR)), Case 633,
21 January 2013.
80
Italy, Corte Suprema di Cassazione, Case 41, 3 January 2013.
© FRA 46
legal systems. For case law to more consistently use the Charter’s potential,
awareness of the Charter needs to be increased amongst judges. In addition, courts
need to exchange relevant practical experiences – both within states and across
national borders. Courts can consult references to case law collected in Charterpedia
and communicate relevant judgments directly to FRA at charter@fra.europa.eu.
The EU and its Member States should encourage greater information exchange on
experiences with and approaches to referencing and using the Charter. This
exchange should take place both between judges of different courts within a given
Member State and between judges of comparable courts across Member States. In
encouraging this information exchange, EU Member States should make best use of
existing judicial networks and EU funding opportunities. Courts, equality bodies and
other National Human Rights Bodies could consider communicating their use of the
Charter on their websites and national courts could insert Charter-related search
fields in their case law databases to allow for better access to Charter-relevant case
law.
© FRA 47
3. Cooperation between the EU and national levels:
existing channels and ways forward
Article 2 of the TEU makes clear that the Union is founded on shared values, including
the respect for fundamental rights. It underlines that these “values are [also] common
to the Member States”. It is the EU’s aim to promote “its values and the well-being of
its peoples”. The same is true for the Member States and their constitutions, which
also aim to protect rights. Fundamental rights are hence a shared concern – and, in
contexts like discrimination or data protection, also an area of shared legislative
competence – of the different layers of governance within the EU.
Following up on the Parliaments’ request, this section gives examples of interaction
between the EU and the Member States and how the former can better assist the latter
in the implementation the EU Charter of Fundamental rights. These cover the
cooperation between agencies and Member States (Section 3.1); cooperation
between EU and national courts (Section 3.1); and cooperation in the context of EU
funding (Section 3.3). The question arises whether more could be done at EU level to
better assist EU Member States in implementing the Charter. Responses to this are
brought together (Section 3.4) before concluding with a view to an enhanced
exchange of practices between the EU Member States in a Council Working group
(Section 3.5).
3.1. Existing tools: cooperation between JHA agencies and EU Member

States
Some examples of JHA agencies’ activities that can be relevant for Member States in
the context of implementation of the Charter are outlined below.
Fundamental Rights Agency
 databases holding data and evidence collected by the agency according to
theme, which Member States can access according to their needs
(Charterpedia, which is currently being upgraded to contain more information
about the Charter’s relevance at national level).
 handbooks for practitioners (handbooks on fundamental rights-based policing;
handbooks with case law for legal practitioners; handbook on the applicability
of the Charter).
 fundamental rights indicators (Roma integration, rights of the child);
 guidelines or codes of conduct (dealing with PNR data; apprehension of
irregular migrants; health care professionals dealing with irregular migrants);
 compilations of case studies and promising practices (Roma housing for local
authorities);
 training sessions and/or curricula (fundamental rights training curriculum for
border guards).
EIGE
 annual monitoring reports on the implementation of one of the critical areas of
the Beijing Platform for Action; these reports form the basis of Council
Conclusions;
© FRA 48
 country visits, where it organises specific events for administration, civil
society and academia.81
Eurojust
 in its recommendations for national authorities, Eurojust can touch upon
fundamental rights issues in cases of conflicts of jurisdictions (linked to Art. 50)
– i.e. when advising which jurisdiction is the best to investigate, prosecute and
try a given criminal case;
 thematic discussions and seminars to discuss good practices, as well as
guidelines and reports.
EASO
 provides both trainings and guidance82as well as support tools to promote
Charter rights, including a specific training module on fundamental rights and
international protection, which is centred on relevant Charter rights.
Frontex
 handbooks (e.g. handbook devoted to children at risk at borders – the VEGA
Handbook), videos and other tools and materials, shared in pre-deployment
briefings and tailored to the profiles of specific border guards.83
Europol
 carries out prevention campaigns to protect young people from sexual
extortion, through the internet. Europol developed videos in cooperation with
EU Member States that are translated into various EU languages and distributed
to EU Member States to raise awareness among children and teenagers. The
videos seek to create awareness among young people so that they understand
when an individual tries to make indecent contact with them;
 when cooperating with the agency, law enforcement authorities must adhere
to Europol’s legal framework, including its data protection rules (use the
automated communication system SIENA).
CEPOL
 specific fundamental rights-based training courses,84 webinars and other
learning activities, including the production of relevant material on these
matters for law enforcement officers and judicial staff;
 common curriculum on police ethics.
Eurofound
offers extensive research, including on: working conditions; youth unemployment and
NEETs (youth not in employment, education, training); posting of workers;
81
The event in Malta in 2016, for example, focused on some of the main gaps identified through the gender
equality index in Malta. One of the gaps concerned intersectional inequalities, for example, relating to the
situation of women above 50 years of age.
82
The recent EASO guide on age assessment gives guidance on how to avoid inherent risks (for example, avoiding
intrusive methodologies disproportionately interfering with the right to respect for private life) and describes the
age assessment process, including its interlinkages with the best interests of the child.
83
To give an example: a tool on access to international protection developed by EASO and Frontex with the support
of FRA helps clarify what border guards should do when facing an application for international protection. A video
on child protection at the border produced by Frontex together with FRA is disseminated in hotspots.
84
Specific CEPOL courses cover the area of hate crime as well as the area of victim protection. Since 2014, CEPOL
also holds courses on fundamental rights in the context of Common Security and Defence Policy (CSDP) missions.
CEPOL has increased the number of courses and webinars related to migration and trafficking of human beings.
Some of the CEPOL courses and webinars are organised with the support of FRA.
© FRA 49
discrimination in relation to gender pay gap); inclusion of people with
disabilities; industrial relations; collective bargaining processes; work-life
balance; access to public services; integration of migrants and minorities;
preventing trafficking of labour; social security and fight against poverty and
housing.EMCDDA
 promotes the Charter rights through its evidence-based publications. For
instance, in the report “Health and social responses to drug problems: a
European guide”, EMCDDA mentions a whole series of rights in the area of
health and social assistance (see p. 15), including right to the integrity of the
persons (free and informed consent of the person);
 EMCDDA publications reach policy makers, scientific community, but also
professionals and practitioners. Examples of professionals include health
practitioners, law enforcement officers, intelligence officer, teachers and
professors, and others working in the drug sector;
 EMCDDA also provides training for practitioners and professionals. These
training events also incorporate fundamental rights.
FRA Opinion 6: EU agencies’ potential to assist EU Member States

Based on their mandates, EU agencies carry out countless fundamental rights-relevant
activities in diverse contexts. This includes offering expertise, advice and practical
support to EU Member States, such as through training activities, handbooks and
practical tools. There is potential to increase such cooperation by better mapping
existing practices and unmet needs at Member State-level.
EU agencies should exchange their practices and experiences, including in the
relevant agencies’ networks, on how to best assist EU Member States in
implementing the Charter. Member States in turn could annually exchange
experiences and express needs with regard to assistance from EU agencies in the
Council’s “Working Party on Fundamental Rights, Citizen's Rights and Free
Movement of Persons” (FREMP).
3.2. Existing tools: judicial dialogue with the CJEU

National judges fulfill a very important task in the EU’s institutional machinery and the
implementation of EU law. To use the words of the CJEU: “The national court, in
collaboration with the Court of Justice, fulfils a duty entrusted to them both of ensuring
that in the interpretation and application of the Treaties the law is observed.”85
Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty
on the Functioning of the European Union (TFEU) establish the possibility for the CJEU
to give preliminary rulings on the interpretation of Union law, including the Charter of
Fundamental Rights. The procedure is a “fundamental mechanism of European Union
law aimed at enabling the courts and tribunals of the Member States to ensure uniform
interpretation and application of that law within the European Union”.86 It allows for a
judicial dialogue between the CJEU and the national courts.87 Once the CJEU has
85
CJEU, Opinion 1/09 of 8 March 2011, para. 69. See also Rosas, A. (2014), The national judge as EU judge: Some
Constitutional Observations, 67 SMU l. Rev. 717.
86
CJEU (2018), Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling
proceedings, OJ C 257/01 as of 20 July 2018.
87
Obviously the Court’s role is also highly relevant in other procedures, including infringement procedures. Whereas
over recent years fewer and fewer infringement procedures are brought before the Court by the European
Commission, the infringement procedure has a considerable potential to protect fundamental rights. See, in this
© FRA 50
delivered – at the request of the national court – an interpretation of a piece of EU law
or expressed itself on the validity of such, the national court will take this into account
when deciding the case at hand, thereby creating a direct channel of influence
between the EU and national layer of governance.
The requests for preliminary rulings do not require a special format. The national court
is expected to provide a summary of the subject-matter of the dispute and the relevant
findings of fact as determined by the referring court; the tenor of any national
provisions applicable in the case and, where appropriate, the relevant national case-
law; and, finally, a statement of the reasons which prompted the referring court or
tribunal to inquire about the interpretation or validity of certain EU law provisions and
the relationship between those provisions and the national legislation applicable to the
main proceedings.88 The court suggests that “about 10 pages is often sufficient to set
out in a proper manner the context of a request for a preliminary ruling”.89
The preliminary ruling proceedings are an efficient tool for the EU level to assist EU
Member States (their courts) to better implement the Charter. Between 2010 (the first
year the Charter was in force) and 2017, courts lodged 392 requests for preliminary
rulings that include references to the Charter of Fundamental Rights (on average 49
per year). During the same period, 3,528 references for preliminary rulings were made
by EU Member States overall. This means that the Charter was mentioned in 11 % of
all references. Over the years, the percentage of references mentioning the Charter
ranged from 6 % in 2010 to 17 % in 2012 (Figure 12).
Figure 12: Preliminary ruling requests citing the Charter and total requests by year,
2010-2017
600
533
500 470
450 436
423 428
404
385
400
300
200
100 68 64 52 53
48 50
24 33
0
2010 2011 2012 2013 2014 2015 2016 2017
Charter Total
Source: FRA, 2018 (based on data provided by CJEU, total numbers taken from Court of Justice, 2017
Annual Report on Judicial Activity)
Courts in all EU Member States made use of the preliminary ruling procedure in the
context of the Charter. Most references for preliminary rulings that mention the
Charter came from Italy, followed by Germany, Belgium, Austria, Spain and Romania
(Figure 13). Italy indeed shows an above-average proportion of references to the
regard, De Schutter, O. (2017), Infringement Proceedings as a Tool for the Enforcement of Fundamental Rights in
the European Union, Open Society Foundations Report, October 2017.
88
See Article 94 (content of the request for a preliminary ruling) of the Rules of Procedure of the Court of Justice.
89
CJEU (2018), Recommendations, para. 14.
© FRA 51
Charter in its preliminary ruling requests to the CJEU. The highest proportion of
references mentioning the Charter is found in Slovakia, where the Charter was referred
to in 19 of the 41 references made between 2010 and 2017.
Figure 13: Requests for preliminary rulings that mention the Charter, by country,
2010-2017
800
718
700
600
500 438
400
300 270
227 238
196
200 173
137131 147
108 107103
100 63 46 37 53 57 47 67
41 52
30 27 24 21 21 19 19 11 11 9 37 45 53
8 8 7 5 5 528 419 4 3 2 218 1 0 5 011 0 2
0
IT DE BE AT ES RO HU NL BG SK IE UK FR LV PT PL FI LT LU EE EL CZ SE SI DK CY HR MT
Preliminary requests mentioning the Charter Total number of preliminary requests
Source: FRA, 2018 (based on data provided by CJEU, total numbers taken from Court of Justice, 2017
Annual Report on Judicial Activity)
As the Charter only applies where another piece of EU law is applicable, requests for
preliminary rulings mentioning the Charter also refer to other sources of EU law. In
74 % of the requests from 2010 to 2017, the Charter is referred to in the context of
EU legislation, including more than 200 directives, regulations and other pieces of EU
legislation.90 Half of the requests for preliminary rulings that refer to the Charter also
include references to the treaties. In 25 % of the requests, the TFEU was mentioned;
in 10 % of the requests, the TEU; and in 12 % both (for a more detailed break-down,
see Figure 14).
90
Council Directive 2000/78/EC on equal treatment in employment and occupation was referred to most often in
the requests for preliminary rulings registered between 2010-2017; it is mentioned in 31 requests – 8 % of all
requests. Other often-mentioned legislation includes Directive 93/13/EEC on unfair terms in consumer contracts
(22 requests) and Directive 2003/88/EC on certain aspects of the organisation of working time (18 requests). All
are pieces of EU legislation with an obvious fundamental rights dimension.
© FRA 52
Figure 14: Mentions of the treaties and EU legislation in the 392 preliminary ruling
requests from 2010 to 2017 that refer to the Charter
Source: FRA, 2018 (based on data provided by CJEU)
The requests most often mention the right to an effective remedy and a fair trial
(Article 47), with 134 mentions (see Figure 15). Other articles mentioned often include
non-discrimination (Article 21, 86 times), equality (Article 20, 53 times), the scope and
interpretation of Charter provisions (Article 52, 47 times) and the right to good
administration (Article 41, 46 times). These five articles constitute just over half of all
articles references in the requests for preliminary rulings that include the Charter
(Figure 15).
© FRA 53
Figure 15: Charter articles cited in requests for preliminary rulings, 2010-2013
250
200 192
150 134
100 86
53
47 46
50 41
33 31
25 24 22 19 17 16
0
Article Article Article Article Article Article Article Article Article Article Article Article Article Article Others
47 21 20 52 41 17 51 7 8 31 16 50 4 24
Note: Due to differing methods of collection some references to articles may not have been captured in
the analysis.
Source: FRA, 2018 (based on data provided by CJEU)
For preliminary ruling proceedings to be efficient tools of advice, judges and other legal
practitioners – such as lawyers active at national level – need to be well versed in EU
law. To avoid being confronted with requests to interpret Charter provisions in cases
that fall outside the scope of EU law, the CJEU advises the national courts that it must
be “clearly and unequivocally apparent from the request for a preliminary ruling that
a rule of EU law other than the Charter is applicable to the case in the main proceedings.
Since the Court has no jurisdiction to give a preliminary ruling where a legal situation
does not come within the scope of EU law, any provisions of the Charter that may be
relied upon by the referring court or tribunal cannot, of themselves, form the basis for
such jurisdiction.”91 This provides further evidence of the need for judicial training, as
advocated in Section 2.1.
The judicial cooperation between the EU and national level can be further strengthened
by allowing for additional channels for exchange and communication. A new and
prominent example in this regard goes back to an initiative of the President of the CJEU
who invited the presidents of the constitutional and supreme courts to participate in
the creation of the ‘Judicial Network of the European Union’ (JNEU). The JNEU is
intended to strengthen judicial cooperation in service of high-quality European justice.
In September 2017, the first meeting of the JNEU took place at the Court in the
presence of the network’s correspondents from 60 constitutional and supreme courts
of the EU Member States. The network will foster mutual knowledge of the law and
case-law of the Member States, and will also help to deepen the preliminary-ruling
dialogue between the Court of Justice and the national courts.92
91
CJEU (2018), Recommendations, para. 10.
92
CJEU (2018), 2017 annual report. The year in review, p. 44.
© FRA 54
3.3. Recent proposals: cooperation in the context of EU funds
Provision of EU funds for legal training
As mentioned by various civil society respondents in the consultation with the
Fundamental Rights Platform, one recognised avenue for the EU to assist Member
States in better implementing the Charter is to co-fund training for legal practitioners.
It is the European Commission’s official aim to ensure that half (around 700,000) of all
legal practitioners in the EU are trained on EU law or on the national law of another
Member State by 2020. This aim will be reached already this year. According to the
report European Judicial Training 2017, “more than 143 000 legal practitioners (judges,
prosecutors, court staff, lawyers, bailiffs and notaries) as well as trainees of these
professional groups took part in training activities on EU law or on the national law of
another Member State” in 2016.93 However, it has to be stressed that only about 6 %
of these training activities focus on fundamental rights.
This lack of fundamental rights focus and relevance did not go unnoticed. The European
Commission recognises the need to increase the number of training activities on
fundamental rights and the rule of law.94 As part of the Commission strategy for the
effective implementation of the EU Charter of Fundamental Rights,95 the European
Commission initiated a training programme consisting of a series of eight seminars in
2018 and 2019. These will reach about 544 judges and prosecutors, and will make
them aware of the importance of applying existing national, international and EU legal
frameworks to uphold fundamental rights and the rule of law.96
Provision of EU funds earmarked for fundamental rights projects
A second way of assisting Member States in better implementing the Charter is the
provision of EU funds to fundamental rights-related projects and activities. Over recent
decades, EU funding opportunities in the area of fundamental rights have increased. In
the current Multiannual Financial Framework (MFF), the “Rights, Equality and
Citizenship Programme” is especially relevant.97 It has nine objectives, all related to
the rights of persons as enshrined in the TEU, the TFEU, and the Charter (as well as in
the international human rights conventions to which the Union has acceded).98 The
93
European Commission (2016), European Judicial Training 2016, Luxembourg, Publications Office.
94
The need was also emphasised by the recent public consultation for the evaluation of the 2011 European Judicial
Training Strategy and during the conference that wrapped up the results of this consultation: Shaping the future of
European judicial training: Fit for the 21st century. The development of the future European Commission agenda
on European judicial training is expected to build on these conclusions.
95
European Commission (2010), Strategy for the effective implementation of the Charter of Fundamental Rights by
the European Union , COM(2010) 573 final.
96
These seminars are prepared and implemented with the support of the European Judicial Training Network (EJTN).
The main objective is to foster and enhance awareness, among judges and prosecutors of the EU Member States,
of fundamental rights as enshrined in the EU Charter of Fundamental Rights and of CJEU jurisprudence on the rule
of law; as well as to increase the coherence and complementarity among existing training module materials, also
with a view to their publication in the e-Justice Portal. Judges and prosecutors from candidate and potential
candidate countries that are observers of EJTN are also addressed.
97
In the foregoing MFF, relevant funding possibilities were spread over various programmes, namely: the
Fundamental Rights and Citizenship Programme – aiming to strengthen the policy area of Freedom, Security and
Justice; three Daphne Programmes – focused on assisting civil society organisations active in the field of
fundamental rights; and the Progress Programme – supporting implementation of EU objectives in employment,
social affairs and equal opportunities.
98
Namely to promote non-discrimination; to prevent and combat racism, xenophobia, homophobia and other forms
of intolerance; to promote and protect the rights of persons with disabilities; to promote equality between women
and men and to advance gender mainstreaming; to prevent and combat all forms of violence against children,
young people and women, as well as violence against other groups at risk; in particular groups at risk of violence
in close relationships, and to protect victims of such violence; to promote and protect the rights of the child; to
contribute to ensuring the highest level of protection of privacy and personal data; to promote and enhance the
© FRA 55
financial envelope of the programme is close to EUR 440 million for the period 2014-
2020. This is complemented by the “Europe for Citizens’ programme”, which aims to
encourage direct citizen participation at EU level and promote dialogue between the
EU institutions, civil society organisations and municipalities. Its financial envelope is
EUR 185 million for the same period.99
In its proposal for the next MFF (2021-2027), the European Commission proposes a
new “Rights and Values programme” with a total allocation of EUR 641,7 million for
the period 2021-2027. It would bring together the two above-mentioned programmes
and aim to achieve three specific objectives. The equality and rights strand (equality,
gender mainstreaming, combat racism, rights of the child, disability, Union citizenship,
data protection) and the Daphne strand (fight against violence and the protection of
victims of violence) would be allocated EUR 408,7 million, whereas the Citizens’
engagement and participation strand would be given EUR 233 million. Critics claim
that:
 first, this is too small an increase (together the two programmes already now
dispose over EUR 624 million);
 second, the programme misses out on specifically fostering and supporting the
creation of an active and sustainable sector of civil society organisations at
national and local levels with the capacity to fulfil its role in safeguarding these
values;
 third, access to funds for civil society organisations could be further
simplified.100
Current provisions for the spending of EU funds
Whereas the funding earmarked for fundamental rights is in its overall dimension
rather minimal – accounting for only 0,04% of the overall MFF – well more than a third
of the current MFF is spent via the European Regional Development Fund (ERDF), the
European Social Fund Plus (ESFplus), the Cohesion Fund (CF), the European Maritime
and Fisheries Fund (EMFF), the Asylum and Migration Fund (AMF), the Internal Security
Fund (ISF) and the Border Management and Visa Instrument (BMVI).
It is hence of major practical relevance to ensure that these large scale funds are spent
in a way that not only respects, but also effectively contributes to the promotion of,
fundamental rights.101 The provisions on the management of these funds are laid down
in the Common Provision Regulation (CPR). The current CPR introduced the concept of
‘ex-ante conditionalities’ (preconditions) containing rights-related requirements to
access EU funding. However these requirements are limited to the areas of non-
discrimination, gender and disability.102
exercise of rights deriving from citizenship of the Union; and, finally, to enable individuals in their capacity as
consumers or entrepreneurs in the internal market to enforce their rights deriving from Union law, having regard
to the projects funded under the Consumer Programme. See Art. 4 of Regulation (EU) No. 1381/2013 of 17
December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020, OJ L 354
as of 28 December 2013.
99
Council regulation (EU) No. 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the
period 2014-2020, OJ L 115 as of 17 April 2014.
100
See, for example, EFC (European Foundation Centre) and Dame (Donors and Foundations Networks in Europe),
Letter to European Commissioner Vera Jourova, 19 July 2018.
101
For the national side of this theme see Viță, V. and Podstawa, K. (2017), When the EU Funds meet the Charter of
Fundamental Rights: on the applicability of the Charter of Fundamental Rights to EU Funds implemented at
national level, Global Campus Working Paper 1/17.
102
Article 19 and Annex XI, Part I and II, of Regulation (EU) No. 1303/2013 of the European Parliament and of the
Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the
© FRA 56
The Commission believes that these conditionalities helped improve the
implementation of relevant EU legislation in several Member States. This was achieved
mainly by instigating the development of Member States’ strategies and the adoption
of other specific implementation steps, such as designating authorised persons or
institutions, training and dissemination actions and development of necessary
administrative capacity.103
However, the current framework for the funding period 2014-2020 has also been
subject to criticism. According to a 2015 European Ombudsman’s (EO) Decision, it
“does not address in a visible way the need for the rights enshrined in the Charter of
Fundamental Rights of the EU (the ‘Charter’) to be respected when EU cohesion policy
is implemented; nor does it provide for measures to be taken if those rights are
violated”. 104 The European Court of Auditors, for its part, assessing the system of ex-
ante conditionalities as such, pointed out that it “provided a consistent framework for
assessing the Member States’ readiness to implement Cohesion policy, but it is unclear
to what extent this has effectively led to changes on the ground”.105 At the same time,
it underlines that the real impact of the use of EU funds depends largely on the
ownership taken by Member States, which often tend to adopt overly positive, but
inconsistent self-assessments.106 As admitted by the Commission, “the current
assessment process is a one-off exercise” and “there is a risk that measures taken to
fulfil the ExAC [ex ante conditionalities] could be reversed”.107
In response to the 2015 EO’s Decision and ‘guidelines for improvement’, 108 the
Commission published guidance on ensuring the respect for the Charter of
Fundamental Rights of the European Union when implementing the EU cohesion policy
funds in 2016.109 It reminds national authorities of the legal status of the Charter and
its relevance when carrying out actions falling within the scope of EU funding
regulations. The guidance suggests also a ‘fundamental rights checklist’ that national
authorities are invited to use when assessing whether their actions do fall within the
scope of EU law and if they have an impact on the fundamental rights of the Charter.
However, the guidelines are as such not binding EU secondary law.
The lesson learned from the operation of the ex ante conditionalities 2014-2020 were
recently summarised as follows: “the successful operation of ex ante conditionalities
relies dramatically on clearly defined and commonly shared objectives; lack of
subsequent follow-up, monitoring and evaluation of outputs decreases effect; ex ante
conditionalities critically rely on a genuine and congruent commitment of responsible
European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European
Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the
European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council
Regulation (EC) No. 1083/2006, OJ L 347, 20 December 2013. See also European Commission (2014), Guidance
on Ex ante Conditionalities for the European Structural and Investment Funds, Part I and Part II, pp. 338-357.
103
European Commission (2017), The Value Added of Ex ante Conditionalities in the European Structural and
Investment Funds, SWD(2017) 127 final, p. 10 and pp. 14-15; European Commission (2016), The implementation
of the provisions in relation to the ex-ante conditionalities during the programming phase of the European
Structural and Investment (ESI) Funds, METIS GmbH, pp. 46-47.
104
European Ombudsman (2015), Decision adopted on the 11 May 2015, Case OI/8/2014/AN, para. 4.
105
European Court of Auditors (2017), Ex ante conditionalities and performance reserve in Cohesion: innovative but
not yet effective instruments, p. 24.
106
Ibid., p.27.
107
Investment Funds, SWD(2017) 127 final, p.18.
108
European Ombudsman (2015), Decision adopted on the 11 May 2015, Case OI/8/2014/AN, para. 48.
109
European Commission (2016), Guidance on ensuring the respect for the Charter of Fundamental Rights of the
European Union when implementing the European Structural and Investment Funds (‘ESI Funds’), OJ C 269, 23 July
2016.
© FRA 57
stakeholders at the national and regional level; institutional coordination at the EU and
national level is of critical importance”.110 This confirms the need for an efficient
cooperation between the EU and national authorities.
Proposal for an enhanced fundamental rights conditionality
The proposal for the new CPR for the programming period 2021-2027, as presented
on 31 May 2018,111 elaborates and reinforces the conditionality mechanism of the
current CPR. The ex-ante conditionalities concept is strengthened and developed into
an ‘enabling conditions’ system, which introduces a set of four horizontal and 16
thematic 'enabling conditions' to be monitored and applied throughout the new
programming period, affecting payments to Member States for the operations
supported by EU Funds at any stage of their implementation.112 Two of the four
horizontal enabling conditions are the “effective application and implementation of the
EU Charter of Fundamental Rights” and the “implementation and application of the
United Nations Convention on the rights of persons with disabilities (UNCRPD) in
accordance with Council Decision 2010/48/EC.”113 Out of the 16 thematic enabling
conditions, some have an immediate relevance for fundamental rights such as the
need to have in place a National Roma Integration Strategy as well as national strategic
frameworks for gender equality and for social inclusion and poverty reduction.114
With the introduction of a general Charter-conditionality, the new draft CPR adopts a
more comprehensive approach regarding respect of the Charter as a whole and not a
fragmented one, as is the case under the current CPR, which refers solely to the
principles of non-discrimination and gender equality.115 A further improvement is that
horizontal enabling conditions apply automatically to all programmes and specific
policy objectives covered by the new CRP.116 No payments will be carried out before
a positive assessment by the Commission about the fulfilment the Charter condition.117
The European Commission will examine the information provided by Member States
and declare whether or not it agrees with the Member State’s self-assessment. Thus
Member States must establish appropriate mechanisms to ensure compliance with the
Charter provisions during both the preparation and the implementation of their
programmes and operations supported by EU Funds.118 If the Commission concludes
throughout this period that there has been a breach of a certain enabling condition,
relevant payments will be frozen.119
The new CPR will provide common rules to seven shared management funds (CF,
EMFF, ERDF, ESFplus, AMIF, BMVI and ISF). By introducing the enabling condition to
respect the Charter of Fundamental Rights, the CPR is expected to “have a positive
110
Viță, V. (2018), Research for REGI Committee - Conditionalities in Cohesion Policy, 11 September 2018.
111
European Commission (2018), Proposal for a Regulation of the European Parliament and of the Council laying down
common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion
Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum and Migration
Fund, the Internal Security Fund and the Border Management and Visa Instrument, (CPR), COM(2018) 375 final.
112
Article 11(1) and Annexes III and IV of the draft CPR.
113
Article 11(1) and Annex III of the draft CPR.
114
Article 11(1) and Annex IV of the draft CPR.
115
Ibid.
116
Ibid.
117
Article 11(1) in conjunction with Article 11(5) and Annex III of the draft CPR.
118
Article 11(4) of the draft CPR.
119
Recital 17 and Article 11(6) of the draft CPR.
© FRA 58
impact on the respect and protection of all fundamental rights in the managements of
all seven funds.”120
Respect for the rule of law is intended to be guaranteed through another horizontal
instrument – a regulation “on the protection of the Union's budget in case of
generalised deficiencies as regards the rule of law in the Member States”.121
Interestingly, the proposed regulations establishing the various funds differ in how
they refer to the two horizontal instruments (the CPR and the regulation on rule of law
deficiencies) and how they refer to fundamental rights in general.122 None of the six
draft regulations establishing the seven funds includes a prominent horizontal
fundamental rights clause that would in the operational text of the regulations
underline the necessity to respect and promote fundamental rights.
Need for efficient monitoring at national level
Whereas the introduction of a general Charter conditionality is a positive step, its
general nature carries the risk that it results in a formalistic box-ticking exercise if not
accompanied with a convincing monitoring framework. The success or less of the new
scheme will depend on how the Member States deliver on the obligation to establish
“arrangements to ensure verification of compliance of operations supported by the
Funds with the Charter of Fundamental Rights” and the “reporting arrangements to
the monitoring committee” on this compliance.123
The proposal for the CPR strengthens the role of monitoring committees.124 Their
functions explicitly include examining the fulfilment of enabling conditions throughout
the programming period.125 Member States have to assure the participation not only
of national authorities, but also of economic and social partners, relevant bodies
representing civil society and environmental partners, as well as bodies responsible
for promoting social inclusion, fundamental rights, rights of persons with disabilities,
gender equality and non-discrimination.126
Reference to fundamental rights bodies is a new element, calling on Member States
to designate in monitoring committees human rights institutions too, including
Ombudsman institutions. The challenge is how to ensure their effective participation
and contribution in the monitoring process. Member States will need to establish
120
European Commission (2018), Proposal for a Regulation of the European Parliament and of the Council laying
down common provisions on the European Regional Development Fund, the European Social Fund Plus, the
Cohesion Fund, and the European Maritime and Fisheries Fund and financial rules for those and for the Asylum
and Migration Fund, the Internal Security Fund and the Border Management and Visa Instrument, (CPR),
COM(2018) 375 final, p.5.
121
European Commission (2018), Proposal for a Regulation of the European Parliament and of the Council on the
protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the member
States, COM(2018) 32.
122
All the regulations but the one on the ERDF and CF refer, in their preamble, to the regulation on the rule of law
deficiencies. References to fundamental rights are found in four of the six regulations establishing the seven funds
– the Draft regulation on ESF Plus, COM(2018)382 final and the Draft regulation on the EMFF, COM(2018)390 final
do not have such a reference. Only two of the six proposals for regulations mention fundamental rights in their
operational text, namely Art. 3 of the Draft regulation on the AMF, COM(2018) 471 final, and Art. 3 of the Draft
regulation on the BMVI, COM(2018) 473 final. The reference states in the provision on the instrument’s scope that
the objective of the instrument shall be achieved “in full compliance” (BMVI) with the “Union’s commitments to
fundamental rights” (in fact the AMF regulation differs in wording as it only asks for “compliance” without the
qualification “full”). References to fundamental rights in specific relevant contexts, such as the evaluation of the
respective instrument or the issuing of performance reports (compare, for instance, in the context of the AMF, Art.
29 and 30 in COM(2018) 471 final) are absent.
123
Annex III of the draft CPR.
124
Art. 33-36 in conjunction with Article 6 of the draft CPR.
125
Art. 35(1)(h) of the draft CPR.
126
Art. 34 in conjunction with Art. 6 of the draft CPR.
© FRA 59
appropriate legal and institutional arrangements, including human resources and
institutional capacity,127 to better apply the fulfilment criteria of the enabling
conditions, as foreseen in the new draft CPR. In this regard, Member States and
relevant national authorities could find it useful that the European Commission, with
the contribution of agencies such as FRA, provides technical and capacity-building
assistance, including training, on how to better monitor respect of the Charter when
making use of EU Funds. What remains unclear is how the enabling condition’s
fulfilment will be examined and assessed at the initial phase, when the monitoring
committees are not yet established.
Mainstreaming the Charter
Under the draft Common Provisions regulation (CPR), managing authorities have to
“establish and apply criteria and procedures which are non-discriminatory,
transparent, ensure gender equality and take account of the Charter of Fundamental
Rights of the European Union”.128 The draft CPR obliges Member States and the
Commission to “ensure the coordination, complementarity and coherence between
the Funds and other Union instruments such as the Reform Support Programme,
including the Reform Delivery Tool and the Technical Support Instrument.”129 The draft
CPR also makes the link between Country-Specific Recommendations (CSRs) and
programming documents explicit130 thereby bridging the Commission's economic
agenda in the context of the European Semester with the programming under the EU
funds.
Many national activities sparked and funded by the EU have the potential to further
the implementation of the Charter. For instance, the EU’s Reform Support Programme
has the objective to contribute to strengthening the administrative capacity of the
Member States in relation to challenges faced by institutions, governance, public
administration, and economic and social sectors.131 Reforms financed under this tool
could and should contribute to a better implementation of the Charter. To give a
practical example: Under the current ex ante conditionalities, “Malta, Portugal, and
Slovenia introduced an SME [Small and Medium Enterprises] Test, to ensure
assessment and monitoring of the impact of national legislation on SMEs”.132 Such an
amendment of national legislation on legislative impact assessments could be an ideal
opportunity to introduce a proper Article 51 screening as proposed in Section 2.2. The
calls for more and better targeted Charter training (see Section 2.1.) could also be
mainstreamed in national Judicial and Administrative reform strategies, Vocational
Education and Training (VET) or Life Long Learning (LLL) Strategies.
FRA Opinion 7: A new Charter-conditionality for EU funds

The provision of EU funds for the training of legal practitioners is key. However,
currently provided training is dedicated to fundamental rights only to a minor degree.
EU programmes that are earmarked for fundamental rights-related projects form
another important contribution – but have a limited financial dimension. EU Funds,
127
See in this context also European Commission (2018), Recommendation on standards for equality bodies,
C(2018) 3850 final, 22.6.2018.
128
Art. 67 (1) of the draft CPR.
129
Art. 4 Para 4 of the draft CPR.
130
See, for example, Art. 8 lit (a), Article 9 (1), Art. 14 (1) lit (a), Art. 18 (1), Art. 35 (1) lit (c) of the draft CPR.
131
See the current proposal for a new regulation on the establishment of the Reform Support Programme, COM
(2018) 391 finals, 31 May 2018.
132
Investment Funds, SWD (2017) 127 final, 31 March 2017, p. 7.
© FRA 60
however, have remarkable practical impact. The large EU Funds – like the European
Regional Development Fund (ERDF), the European Social Fund Plus (ESF), the Asylum
and Migration Fund (AMF), and others – represent a substantial portion of the EU’s
overall budget. Significantly, the European Commission has proposed a new form of
conditionality for these funds. This would not just cover a few selected dimensions of
the Charter, as has been the case so car. Instead, the full spectrum of Charter rights
would need to be applied throughout the full project cycle of the activities using
resources provided by the EU Funds. The potential practical implications of this
revamped conditionality are considerable – if the obligation is coherently referred to
in the relevant legal texts and comes with effective monitoring mechanisms at the
national level.
The EU legislator should adopt the new enabling condition covering the effective
application and implementation of the EU Charter of Fundamental Rights, as laid
down in the Common Procedure Regulation proposed by the European Commission
for the next Multiannual Financial Framework 2021-2027. The legislator should
enhance the visibility of this new conditionality by introducing strong and consistent
fundamental rights clauses in the operational text of the draft regulations
establishing the large EU Funds.
When implementing the financial instruments, EU institutions should put special
emphasis on the horizontal conditionalities related to fundamental rights and make
sure that the respect for the Charter provisions and the promotion of their application
is mainstreamed in all activities.
EU Member States should engage in a dialogue with Equality Bodies and National
Human Rights Institutions, including Ombuds Institutions, to explore their effective
participation in the preparation phase and the monitoring process of the
implementation of EU-funded programmes. Allocating human resources and
adequate funding to them, and earmarking EU resources for that purpose, will bolster
the efficiency of the new Charter conditionality.
Where Member States and competent national authorities consider it useful, the
European Commission, with the support of agencies such as FRA, could provide
technical assistance and training to Equality Bodies and National Human Rights
Institutions, including Ombuds Institutions, on how to monitor effectively the EU
Charter of Fundamental Rights and the United Nations Convention on the Rights of
Persons with Disabilities with regard to the implementation of the EU Funds.
3.4. How the EU could better assist EU Member States: views from the
consultation
What are other avenues via which the EU and its Member States could cooperate –
besides the administration of EU funds and judicial dialogue – to improve
implementation of the Charter at national level? The agency asked its Fundamental
Rights Platform whether and how the EU – its institutions, agencies and policies – could
better assist EU Member States in this regard. Of the 114 respondents, 96 said that
there is room for the EU to play such a role.
When asked for examples of how this could best be done, three prominent clusters of
proposals emerged. Many respondents referred to activities and funding provided by
the EU to raise awareness. Think tanks, networks, focal points, schools, youth
organisations and others were mentioned. A concrete proposal was to make available
© FRA 61
“list of cases, ideally also with videos and short testimonies, where the Charter made
a difference on people's lives”.133
Another cluster of proposals concerned training measures. Various respondents
stressed in this context the relevance of civil servants, judges, magistrates,
prosecutors, as well as university students. A third cluster of proposals focused on the
implementation of existing EU law in the Member States. Proposals included improving
the EU’s capacity to monitor developments on the ground and to follow up with
persuasive steps and penalties. The EU was asked to step up its role as guardian of EU
primary law. One respondent said that “DG regio could help to make sure that projects
[funded by the European Union] are supporting the implementation of the Charter”.134
There were proposals to issue practical implementing guidelines that help national
actors to implement EU law in a fundamental rights-conforming manner. Another
respondent called for the EU to assist “national Parliaments when transposing EU
legislation”.135
133
A respondent in the anonymous online consultation carried out in the framework of the agency’s Fundamental
Rights Platform in July 2018.
134
135
© FRA 62
Figure 16: Civil society organisations on the EU’s potential to better assist Member
States in implementing the Charter
Could the EU (its institutions, agencies and

policies) better assist the EU Member States in
implementing the Charter?
2% 14%
Yes
No
I don’t know
84%
Note: Based on replies to the anonymous online consultation carried out in the framework of the agency’s
Fundamental Rights Platform in July 2018.
Source: FRA, 2018
For the purpose of this Opinion, the agency also consulted its National Liaison
Officers (NLOs) in the 28 national governments on how the EU – its institutions,
agencies and policies – could better assist EU Member States in implementing the
Charter. Of the replies received, training measures amongst relevant groups were
most often mentioned. One country stated that they would appreciate regular updates
on CJEU case law (and possibly national courts) in which the Charter made a difference.
Three Member States referred to the upcoming FRA handbook on the applicability of
the Charter as a good initiative on which to further build. Another Member State
proposed that the EU should offer “networking opportunities” amongst judges and
other court officials on the topic of the Charter’s implementation. National Liaison
Officers from two countries found it worthwhile to explore the idea of creating Charter
focal points. One of them proposed that a network of Charter focal points could bring
together professionals from the NHRIs and magistrates in the Member States and thus
function as a platform for legal practitioners to exchange views and experiences on
the application of the Charter and the relevant national and European case law, as well
as legal studies in the field. Another NLO stressed the interest of Member States in
learning about practical examples showing how specific articles of the Charter are used
in other countries. This could include MOOC sessions, videos and PowerPoints on
selected topics.
3.5. Exchanges between EU Member States: a way forward

The proposals mentioned above are just the result of two ad hoc and rather superficial
consultations. More could be harvested if a regular exchange at a greater scale were
to be put in place. A question at this point is where in the EU institutional setting a
regular exchange of experiences and practices would be best placed. The Council of
the European Union – part of the EU legislature and at the same time bringing together
all EU Member States – appears especially appropriate.
© FRA 63
Since 2005, the Council disposes over a “Working Party on Fundamental Rights,
Citizen's Rights and Free Movement of Persons” (FREMP), which became permanent
in nature in 2009. The working party deals with issues related to the EU Charter of
Fundamental Rights, and with negotiations regarding EU accession to the ECHR. It is
also responsible for preparatory work in the legislative procedures of the Council in
the field of fundamental rights, citizens’ rights and free movement; all matters in
respect to and promotion of fundamental rights in the EU; and annual exchanges with
FRA and discussion of its reports and the follow-up to the latter. The working party
meets in different formations when necessary, depending on the subject of the
agenda.136
Against this background, FREMP appears to offer a well-placed institutional space for
regular meetings of EU Member States to exchange experiences, practices, problems
and needs in the context of implementation of the Charter of Fundamental Rights. Such
an exercise could be prepared by an expert seminar and/or questionnaires sent to
national administrations, experts and the judiciary to gather relevant information from
the ground. Representatives from the European Commission and the European
Parliament would be invited to the exchange in FREMP so that the results of such a
structured exchange would not only feed into the Council’s work and its relevant
conclusions, but also into the work of the relevant committees and units within the
European Parliament and the European Commission.
FRA Opinion 8: Regular exchange among EU Member States

No institutional space and practice within the EU system is currently specifically
dedicated to in-depth exchanges of Member States’ experiences with implementing
the Charter. The “Working Party on Fundamental Rights, Citizen's Rights and Free
Movement of Persons” (FREMP) is the Council’s working group responsible for
fundamental rights-related issues, including the Charter. It brings together relevant
civil servants in this regard. The working group appears to provide an appropriate
platform for all three branches of government to exchange experiences with Charter
implementation in order to learn from promising practices and address shortcomings.
The EU and its Member States should consider establishing an annual ‘Charter
exchange’ in the Council’s “Working Party on Fundamental Rights, Citizen's
Rights and Free Movement of Persons” (FREMP). Based on relevant information
regarding local, regional and national practices and experiences concerning the
implementation of the Charter, such an exchange could help promote a common
understanding of the Charter’s practical application and its needs. Such an annual
Charter exchange in FREMP should also allow for relevant participation by the
European Commission and the European Parliament so that the results can also
feed into the work of these institutions. The Charter exchange could be prepared
by an expert seminar and/or a structured process collecting the relevant data,
evidence and promising practices.
136
See the Council website. See Council document 10075/17, 19.6.2017, footnote 50.
© FRA 64
Annex 1: Selected FRA activities in the context of the Charter
Charterpedia: an online tool that provides a one-stop-shop of Charter-related
information, with a focus on European and national case law (case-law database).
Charterpedia was originally developed by the European Parliament and then handed
over to the agency with a view to guaranteeing regular maintenance and expansion
of the content. In 2015, the Council of the EU called on FRA to further develop
Charterpedia and “underline[d] the essential role of the Agency in raising awareness
of the Charter rights”.137 Charterpedia is currently being extended to cover all relevant
CJEU case law, relevant national constitutional and international law, country-specific
information and more. Charterpedia is also available via mobile phone as an “EU
Charter app”.
Thematic Handbooks: FRA produces, in cooperation with the Council of Europe and the
European Court of Human Rights (and documentary support by the Court of Justice of
the European Union), handbooks for legal practitioners presenting the relevant case
law on the Charter and the European Convention of Human Rights in the following
thematic areas:
 data protection;
 non-discrimination law;
 access to justice;
 rights of the child;
 asylum, borders and immigration.
Another relevant handbook is FRA’s forthcoming handbook providing guidance on the
application of the EU Charter of Fundamental Rights in law and policymaking at
national level. The Charter also features prominently in FRA reports, which offer
relevant information and analysis – as the example of the report “Freedom to conduct
a business: exploring the dimensions of a fundamental right” shows.138
FRA Opinions: The Charter forms a prominent legal standard in FRA’s work.139 This is
especially evident in FRA’s legal Opinions, where the agency provides assistance and
expertise also in the context of legislative proposals. Recently FRA has delivered
Opinions on:
o Fundamental rights implications of storing biometric data in identity
documents and residence cards;140
o The revised Visa Information System and its fundamental rights
implications;141
137
Draft Council conclusions on the application of the Charter on Fundamental Rights in 2014.
138
FRA (2015), Freedom to conduct a business: exploring the dimensions of a fundamental right, Luxembourg.
139
Council regulation (EC) No. 168/2007of 15 February 2007 establishing a European Union Agency for Fundamental
Rights, Preamble (9): “The Agency should refer in its work to fundamental rights within the meaning of Article 6(2)
of the Treaty on European Union, including the European Convention on Human Rights and Fundamental Freedoms,
and as reflected in particular in the Charter of Fundamental Rights, bearing in mind its status and the accompanying
explanations. The close connection to the Charter should be reflected in the name of the Agency.”
140
FRA (2018), Fundamental rights implications of storing biometric data in identity documents and residence cards,
FRA Opinion – 3/2018, Luxembourg, Publications Office of the European Union (Publications Office).
141
FRA (2018), The revised Visa Information System and its fundamental rights implications, FRA Opinion – 2/2018,
Luxembourg, Publications Office.
© FRA 65
o Interoperability and fundamental rights implications;142
o The impact on fundamental rights of the proposed Regulation on the
European Travel Information and Authorisation System (ETIAS);143
o Improving access to remedy in the area of business and human rights
at the EU level;144
o The impact of the proposal for a revised Eurodac Regulation on
fundamental rights;145
o Fundamental rights in the 'hotspots' set up in Greece and Italy;146
o The impact on children of the proposal for a revised Dublin
Regulation;147
o Requirements under Article 33 (2) of the UN Convention on the Rights
of Persons with Disabilities within the EU context;148
o The development of an integrated tool of objective fundamental rights
indicators able to measure compliance with the shared values listed in
Article 2 TEU based on existing sources of information;149
o EU common list of safe countries of origin.150
142
FRA (2018), Interoperability and fundamental rights implications, FRA Opinion – 1/2018, Luxembourg, Publications
Office.
143
FRA (2017), The impact on fundamental rights of the proposed Regulation on the European Travel Information and
Authorisation System (ETIAS), FRA Opinion – 2/2017, Luxembourg, Publications Office.
144
FRA (2017), Improving access to remedy in the area of business and human rights at the EU level, FRA Opinion –
1/2017, Luxembourg, Publications Office.
145
FRA (2016), The impact of the proposal for a revised Eurodac Regulation on fundamental rights, FRA Opinion –
146
FRA (2016), FRA Opinion on fundamental rights in the 'hotspots' set up in Greece and Italy, FRA Opinion – 5/2016,
147
FRA (2016), FRA Opinion on the impact on children of the proposal for a revised Dublin Regulation, FRA Opinion –
148
FRA (2016), FRA Opinion concerning requirements under Article 33 (2) of the UN Convention on the Rights of
Persons with Disabilities within the EU context, FRA Opinion – 3/2016, Luxembourg, Publications Office.
149
FRA (2016), FRA Opinion on the development of an integrated tool of objective fundamental rights indicators able
to measure compliance with the shared values listed in Article 2 TEU based on existing sources of information, FRA
Opinion – 2/2016, Luxembourg, Publications Office.
150
FRA (2016), FRA Opinion concerning an EU common list of safe countries of origin, FRA Opinion – 1/2016,
© FRA 66
Annex 2: Agencies (and other bodies) covered by
the consultation
© FRA
Note: For the agencies’ full names, see thelist of acronyms. More information on the agencies of the EU is available online.
Source: FRA, 2018
67
TK0318244-EN-N
ISBN: 978-92-9474-239-1
doi: 10.2811/773609
FRA – European Union Agency for Fundamental Rights

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FRA Opinion – 4/2018

[Charter of Fundamental Rights]

Vienna, 24 September 2018

Challenges and opportunities

In accordance with Council Regulation 168/2007 of 15 February 2007 establishing a

SUBMITS THE FOLLOWING OPINION

FRA Opinion 3: Policies promoting the Charter’s use at national level

FRA Opinion 4: The Charter and legislative processes in EU Member States

FRA Opinion 6: EU agencies’ potential to assist EU Member States

FRA Opinion 7: A new Charter-conditionality for EUfunds

FRA Opinion 8: Regular exchange among EU Member States

FRA Opinion 1: Involving independent external expert advice at EU level

1.2. Agencies and fundamental rights

Agency/Body Regulation (or Preamble Operative part

Source: FRA, 2018

In addition to the differences discussed above, it is also important to stress the

1.3. Agencies: internal and external protection mechanisms and

- Freedom of expression (Article 11 of the Charter). This issue is governed by

1.4. Agencies and fundamental rights: the way forward

FRONTEX, EFSA, ERCEA, ECDC, EIT, EU-LISA, ENISA, F4E,

Source: FRA, 2018

Potential fundamental rights policies within the agencies

Source: FRA, 2018

QUESTION 5f: Providing regular training on the Charter to staff

EU-LISA, ACER, ECHA, ECDC, GSA, EASA, EMA, CDT, EFSA

Source: FRA, 2018

There also appears to be considerable enthusiasm about deepening existing

EFSA, ERCEA, F4E, EIT, ECDC, ESMA, ENISA, EMA, INEA

Source: FRA, 2018

Views on developing a Charter-checklist diverged (see Figure 5). Some agencies

Source: FRA, 2018

Source: FRA, 2018

Source: FRA, 2018

Source: FRA, 2018

Source: FRA, 2018

Source: FRA, 2018

FRA Opinion 2: The Charter’s relevance for EU agencies

Are you aware of any government policies at

Source: FRA, 2018

FRA Opinion 3: Policies promoting the Charter’s use at national level

2.2. The Charter and the legislature: impact assessments, legal

FRA Opinion 4: The Charter and legislative processes in EU Member States

3.1. Existing tools: cooperation between JHA agencies and EU Member

FRA Opinion 6: EU agencies’ potential to assist EU Member States

3.2. Existing tools: judicial dialogue with the CJEU

Preliminary requests mentioning the Charter Total number of preliminary requests

Source: FRA, 2018 (based on data provided by CJEU)

FRA Opinion 7: A new Charter-conditionality for EU funds

Could the EU (its institutions, agencies and

3.5. Exchanges between EU Member States: a way forward

FRA Opinion 8: Regular exchange among EU Member States

FRA – European Union Agency for Fundamental Rights

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