Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union is a human rights text that contains a Preamble and 54 articles organised into different titles: Dignity, Freedoms, Equality, Solidarity, Citizens’ rights, Justice; the last one concerns rules on the interpretation and application of fundamental rights ¹ .

In particular, the Charter of Fundamental Rights of the European Union covers the following.

1. DIGNITY:
   • Human dignity (art. 1)
   • Right to life (art.2)
   • Right to the integrity of the person (art.3)
   • Prohibition of torture and inhuman or degrading treatment or punishment (art.4)
   • Prohibition of slavery and forced labour (art.5)
2. FREEDOMS:
   • Right to liberty and security (art.6)
   • Respect for private and family life (art.7)
   • Protection of personal data (art.8)
   • Right to marry and right to found a family (art.9)
   • Freedom of thought, conscience and religion (art.10)
   • Freedom of expression and information (art.11)
   • Freedom of assembly and of association (art.12)
   • Freedom of the arts and sciences (art.13)
   • Right to education (art.14)
   • Freedom to choose an occupation and right to engage in work (art.15)
   • Freedom to conduct a business (art.16)
   • Right to property (art.17)
   • Right to asylum (art.18)
   • Protection in the event of removal, expulsion or extradition (art.19)
3. EQUALITY:
   • Equality before the law (art.20)
   • Non-discrimination (art.21)
   • Cultural, religious and linguistic diversity (art.22)
   • Equality between women and men (art.23)
   • The rights of the child (art.24)
   • The rights of the elderly (art.25)
   • Integration of persons with disabilities (art.26)
4. SOLIDARITY:
   • Workers’ right to information and consultation within the undertaking (art.27)
   • Right of collective bargaining and action (art.28)
   • Right of access to placement services (art.29)
   • Protection in the event of unjustified dismissal (art.30)
   • Prohibition of child labour and protection of young people at work (art.32)
   • Family and professional life (art.33)
   • Social security and social assistance (art.34)
   • Health care (art.35)
   • Access to services of general economic interest (art.36)
   • Environmental protection (art.37)
   • Consumer protection (art.38)
5. CITIZENS’ RIGHTS:
   • Right to vote and to stand as a candidate at elections to the European Parliament (art.39)
   • Right to vote and to stand as a candidate at municipal elections (art.40)
   • Right to good administration (art.41)
   • Right of access to documents (art.42)
   • European Ombudsman (art.43)
   • Right to petition (art.44)
   • Freedom of movement and of residence (art.45)
   • Diplomatic and consular protection (art.46)
6. JUSTICE:
   • Right to an effective remedy and to a fair trial (art.47)
   • Presumption of innocence and right of defence (art.48)
   • Principles of legality and proportionality of criminal offences and penalties (art.49)
   • Right not to be tried or punished twice in criminal proceedings for the same criminal offence (art.50)

A complaint can be lodge against:

1. European Union institutions, bodies, offices and agencies
2. Member States when they are implementing European Union law. Although, when the Charter of Fundamental Rights of the European Union provisions are sufficiently precise and unconditional, they can have direct effect at the national level, for instance in national courtrooms.
3. Another individual, in limited cases when the Charter of Fundamental Rights of the European Union determines a horizontal direct effect ² .

There are two types of provisions within the Charter of Fundamental Rights of the European Union: rights and principles. Principles can only be invoked before national courts if implemented by legislative or executive acts. The Charter cannot be directly invoked if the case falls outside the scope of the European Union law.

According to the principle of conferral (Article 5 TEU), the European Union law of human rights applies to matters within the competence of the European Union (that are defined by Articles 2 – 6 TFEU).

Beneficiaries of the European Union protection of human rights are: i) individuals; ii) private legal persons (depending on the right and the circumstances); iii) public entities under certain conditions. The beneficiaries of this protection are European citizens and residents on the Union, but also citizens of non-member States and stateless persons. A few Charter rights apply only to European citizens (Articles 15, 16, 39, 40, 45, 46).

In the event of a violation of human rights, beneficiaries of the European Union protection of human rights can count on various means and mechanisms to obtain protection, which can be judicial or non-judicial.

Judicial means available to seek protection of European Union fundamental rights

When a private individual, a company or an organisation has suffered damage due to action or inaction of a European Union institution, body, office and agency, they/it can take judicial action against the European Union in an indirect or a direct way, which means before a national court or the Court of Justice of the European Union (if the European Union institution decision has affected the claimant directly and individually).

National courts of Member States are obliged to interpret national measures in conformity with European law and the Charter whenever they come within the scope of the European Union law (as interpreted by the CJEU). When a national rule conflicts with European Union law, the nation judge must dis-apply the internal norm (in accordance to the principle of the precedence of European law). The national judge can also decide to refer the case to the Court of Justice of the EU. Nevertheless, national courts cannot annul a European act, while the CJEU can.

The Court of Justice of the European Union interprets European law and assure that it is applied in the same way in all Member States. The Court settles legal disputes between national governments and European Union institutions, but it can also decide on controversies between individuals, companies or organisations and the European Union.

The judicial system of the European Union can be activated in two different ways:

• through an action for annulment before the court (brought by individuals)
• through a preliminary ruling to the CJEU (submitted by a national judicial body).

Requirements of actions for annulment are stricter than those for preliminary rulings (for which there is no time limit, but for which it is necessary to have an internal ongoing judicial proceeding that concerns a European act or a national act implementing the European union law).

Furthermore, the Court of Justice can impose financial penalties to States when national authorities infringed rights. The European Commission plays a central role in this so-called “infringement procedure”. On the base of complaints from citizens, businesses or other stakeholders, the European Commission can identify infringements and take legal action – an infringement procedure – against a Member State that fails to implement European Union law. The Commission may refer the issue to the Court of Justice, which in certain cases, can impose financial penalties. This procedure was created with the aim of sanctioning fundamental rights violations in the European Union. It is a mechanism used in specific situations falling within the scope of European Union law.

Non-judicial means available to seek protection of European Union fundamental rights

When an individual retains that a violation of human rights has been caused by European Union institutions, bodies, offices and agencies, they can complain to:

• the European Ombudsman, in case of issues of maladministration
• the European Data Protection Supervisor, if the violation took place during the processing data
• the European Commission and the European Parliament, which can respectively receive complaints and petitions. The European Commission and the European Parliament are two of the institutions that can take the initiative to ask the Council to determine if there is a clear risk of a serious breach by a Member State of the European Union values according to Article 7 TEU.

Article 7 establishes a sanction mechanism to ensure the respect of European principles and values by European Union Member States beyond the legal limits posed by European Union competences. The European Union can intervene in situations of ’serious and persistent breach’ of these values, which include fundamental rights, democracy and the rule of law. Furthermore, there is a preventive phase in cases presenting a ’clear risk of a serious breach’ of European Union values in Member States. Since the rule of law is a prerequisite for ensuring respect for fundamental rights in situations of systemic threat to those rights and considering the difficult activation of the Article 7 TEU mechanism and infringement procedures with limited effect, in 2014 the Commission launched an “EU Framework to strengthen the Rule of Law”.

Recognizing that corporations can have a negative impact on human rights, the European Union has developed various tools to ease victims’ access to justice, even if there is still a long way to go. The cases related below show certain of the means through which victims of human rights abuses can access justice and through which severe and persistent violations of European Union values are ascertained and condemned.

Ombudsman decision in case 1409/2014/MHZ – FIDH and Vietnam Committee on Human Rights v. the European Commission (2016) ³

The case concerns whether the European Commission should have carried out a human rights impact assessment during the negotiations to conclude a free trade agreement with Vietnam.

The complainants (the International Federation for Human Rights and the Vietnam Committee on Human Rights) maintained that an impact assessment was necessary since the European Union is obliged to ensure that its trade agreements do not harm human rights abroad. [Moreover, the lack of a human rights impact assessment was inconsistent with the Commission’s current practice of systematically carrying out a human rights impact assessment in similar cases.] The Commission responded that the impact assessment was not necessary since a sustainability impact assessment had already been carried out in 2009 on a proposed EU/ASEAN free trade agreement, with included Vietnam. Since human rights violations are increasing in Vietnam, the complainants alleged that the issue was not covered by that previous impact assessment and that a number of fundamental rights issues in Vietnam could be further negatively affected by the Free Trade Agreement.

The European Ombudsman affirmed that “The EU Administration should not only ensure that the envisaged agreements comply with existing human rights obligations and do not lower the existing standards of human rights protection, but it should also aim at furthering the cause of human rights in the partner countries” (paragraph 22 of the draft recommendation of the European Ombudsman in the inquiry into complaint 1409/2014/JN against the European Commission). Furthermore, the European Ombudsman affirmed that the observance of and the respect for fundamental human rights is the basis of good administration. Having examined the arguments of the parties, the Ombudsman defineed that the refusal of the Commission constituted maladministration. On 26 March 2015, the Ombudsman made a recommendation to the Commission that it carry out, without further delay, a human rights impact assessment in the matter.

Since the EU-Vietnam Free Trade Agreement was concluded on 2 December 2015, while the Ombudsman’s inquiry was still underway, and since for the human rights impact assessment to have a significant effect, it should have been carried out before the agreement was concluded, the Ombudsman decided not to make a special report to Parliament but closed her inquiry with a critical remark, making clear that she did not accept the Commission’s arguments and that this behaviour constituted maladministration.

EU Ombudsman Decision in case 1026/2020/MAS concerning the failure by the European Commission to finalise an updated ’sustainability impact assessment’ before concluding the EU-Mercosur trade negotiations (2021) ⁴ .

FIDH, along with human rights and environmental rights organisations such as Client Earth, Fern, Veblen Institute and La Fondation Nicolas Hulot pour la Nature et l’Homme, filed a complaint against the Commission in 2020, The case concerned the European Commission’s failure to finalise a ’sustainability impact assessment’ (SIA) before concluding the negotiations on a trade agreement between the EU and Mercosur, a South American trade bloc.

The complainants contended that, by not finalising the assessment, the Commission disregarded its own guidelines on SIAs and breached EU law. The Commission acknowledged that, in general, it would be preferable for SIAs to be finalised before the conclusion of trade negotiations, but argued that there is no legal requirement to do so.

The Ombudsman took the view that, while it was impossible to foresee the dynamics of the negotiations, the SIA in this case had taken much longer to finalise than anticipated. Specifically, the Commission should have ensured that the SIA was finalised before the conclusion of the EU-Mercosur trade negotiations.

The Ombudsman found that the Commission’s failure to ensure that the SIA was finalised in good time constituted maladministration. She also urged the Commission to ensure that, in the future, SIAs are completed prior to the conclusion of trade negotiations.

Since this is the second time that the European Ombudsman has found the Commission guilty of maladministration for failure to carry out impact assessments prior to the conclusion of investment agreements (see above the decision on the Vietnam agreement) it is expected that the Commission will, from now on, fully take into account its obligations both with regard to its own guidelines on sustainability impact assessment and the EU’s legal obligations with regard to human rights.

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Ville de Paris and Others v. Commission (Joined Cases T‑339/16, T‑352/16 and T‑391/16) ⁵

In the wake of the so-called Dieselgate scandal ⁶ , the European Union decided to replace laboratory emissions tests with more accurate measurements on the road. However, the Commission granted a derogation period ignoring the limits set by the European Union Parliament in 2007. On 17th May 2018, the mayors of Paris, Brussels and Madrid presented an appeal against the Commission to the Court of Justice, requesting the annulment of the exemptions adopted by the Commission together with the national governments that allowed car manufacturers to exceed the Euro 6 emission limits. This was the first time the European Court of Justice had heard a case brought by cities as "interested persons", by virtue of their competences in environmental and health protection, reflecting the growing authority of urban centers as defenders of public health and the environment. The Court of Justice accepted the appeal, but granted the Commission a year to comply. The Court ruling was challenged by Germany, Hungary and the European Commission itself in February 2019 ⁷ .

Opinion of the Advocate General Hogan in the case Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Economie et des Finances (2019) ⁸

Referring to Regulation (EU) No. 1169/2011 on the provision of food information to consumers entered into application on 13 December 2014, on 24th November 2016 the French Minister for the Economy and Finance published a notice to economic operators specifying that “foodstuffs from the territories occupied by Israel must (therefore) be labelled to reflect this origin” and requiring those products to include the term “Israeli settlement” or equivalent terms < ⁹ . The Organisation juive européenne and Psagot (a company exploiting vineyards located in the territories occupied by Israel) sought the annulment of the disputed notice with an application before the Conseil d’État (Council of State, France). The Conseil d’État referred to the Court of Justice the question about the compatibility of the notice with European Union law, in order to understand if the absence of the origin indication (a territory occupied by Israel) could mislead the consumers, the Advocate General began his reasoning considering the criteria listed in the Regulation which can influence the consumers’ choice (health, economic, environmental, social and ethical considerations). Referring to numerous international instruments ¹⁰ , the Advocate General stated that the Israeli settlement policy breaches international law and violates the right to self-determination. Going ahead with his argumentation, the Advocate General took into consideration two facts. First, in the past many European consumers stood against the purchase of South African goods in the pre-1994 apartheid era; second, in the Brita judgment ¹¹ , the CJEU has recognised the needing to clearly distinct products originating in the territory of Israel and those originating in the West Bank.

For all the above-mentioned considerations, the Advocate General of the CJEU affirmed that “EU law requires, for a product originating in a territory occupied by Israel since 1967, the indication of the geographical name of this territory and, where it is the case, the indication that the product comes from an Israeli settlement” ¹² .

In November 2019 the ECJ adopted its decision on the case ¹³ . The Grand Chamber of the Court ruled that the correct interpretation of EU Regulation n. 1169/2011 implies that foodstuffs originating in territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, by the indication of that provenance.
In particular the Court clarified that ’State’ refers to a sovereign entity exercising, within its geographical boundaries, the full range of powers recognised by international law. As regards the term ’territory’, the Court noted that it follows from the very wording of the Union Customs Code that that term refers to entities other than ’countries’ and, therefore, other than ’States’. In that context, the Court stated that displaying, on foodstuffs, the indication that the State of Israel is their ’country of origin’, when those foodstuffs actually originate in one of the territories which – while each has its own international status distinct from the State of Israel – are occupied by that State and subject to a limited jurisdiction of the latter, as an occupying power within the meaning of international humanitarian law, would be liable to mislead consumers.

The Court noted that, under Regulation No 1169/2011, the provision of information to consumers must enable them to make informed choices, with regard not only to health, economic, environmental and social considerations, but also to ethical considerations and considerations relating to the observance of international law. The Court underlined in that respect that such considerations could influence consumers’ purchasing decisions. ¹⁴