Article 21 of the Treaty on European Union (TEU) guides the Union’s external action. It reaffirms the EU’s role in promoting democracy, the rule of law, the universality and indivisibility of human rights and respect for the principles of the United Nations Charter and international law. Countries seeking to join the EU must respect human rights. All cooperation and trade agreements with third countries stipulate that human rights are an essential element in relations between the parties.
In 2014, the European External Action Service and the Commission assessed the Action Plan on Human Rights and Democracy (2012-14). The Action Plan set out 97 specific actions. One example are the EU Guidelines on Freedom of Expression online and offline, adopted by the Council in May 2014. The Guidelines provide definitions and guidance on how to protect the right to freedom of expression, covering all its aspects, including the right to hold opinions without interference, the right to seek and receive information and the right to impart information and ideas of all kinds through any media and regardless of frontiers.
A new 2015-19 Action Plan is planned, with a focus on ensuring coherence between internal and external human rights policies, notably for counterterrorism, migration and mobility, and trade.
In order to achieve the objectives of Article 21 TEU, the EU applies restrictive measures, which often give effect to binding Resolutions of the UN Security Council based on Article 41 or 42 of the Charter of the United Nations, but which can also be autonomous EU measures. Some of the restrictive measures involve the listing of individuals and entities to have their funds and economic resources frozen. For the individuals and entities concerned, the right to good administration, to an effective remedy and to a fair trial (Articles 41 and 47 of the EU Charter of fundamental rights) are crucial. In 2014, the CJEU heard cases concerning the procedure to impose restrictive measures on individuals and entities. Of more than 30 judgments issued in 2014 on the legality of the restrictive measures imposed, the Court upheld the listings in only one quarter of cases; in all other cases, the listing decisions were annulled.
One case —the Yusef judgment — concerned restrictive measures taken based on Council Regulation (EC) No 881/2002. This regulation gives effect to a UN Security Council resolution on the freezing of assets of individuals, entities and groups identified by the UN Sanctions Committee as associated with Al Qaida. The General Court ruled that the Commission had failed to act as it had not remedied procedural deficiencies and substantive irregularities affecting the freezing of Mr Yusef’s funds. It thus called on the Commission to discharge its obligation to examine the ground for listing carefully and impartially and where appropriate in ‘effective cooperation’ with the UN Sanctions Committee. The Commission is reviewing the grounds for listing in cooperation with the relevant UN bodies.
Most of the cases where restrictive measures against entities or individuals were annulled by the CJEU concerned Council decisions and regulations, in which the evidence or information substantiating the grounds for listing was not sufficient and the burden of proof, which rested on the Council under Article 47 of the Charter, as interpreted in the Kadi II case, was not discharged. Other cases were annulled for procedural reasons.
In trade policy, the revised unilateral Generalised Scheme of Preferences (GSP+) arrangement, which requires respect of core human rights conventions, started to apply on 1 January 2014. The monitoring mechanism has been significantly strengthened, ensuring that GSP+ beneficiaries comply with their obligations, in particular whether they ratify and implement 27 international conventions on human rights and other issues. The European Parliament and Council also pay closer scrutiny.
3. Application of the Charter by and to the Member States
Under the control of the CJEU, the Commission oversees respect of the Charter by Member States, when they implement EU law. If it becomes aware of a breach, the Commission can open infringement proceedings. National judges are aware of the Charter as an instrument to ensure compliance with fundamental rights by Member States. Provisions of EU law and national law based on EU law must be interpreted in coherence with Charter obligations, so as to give effect to the rights guaranteed under it. Where a national court has doubts as to the applicability of the Charter or the correct interpretation of its provisions, it can — and, in the case of a national court of last instance, must — refer to the CJEU for a preliminary ruling. The CJEU’s answer enables the national court to decide the case. National judges regularly use this procedure. It helps the development of Charter-related case law and strengthens the role of national judges in upholding it. In 2014, national judges made 43 such referrals for a preliminary ruling, slightly more than in previous years.
3.1 Infringement proceedings
Whereas the Charter was mentioned in five infringement proceedings in 2013, in 2014 the Commission has referred to the Charter in 11 cases of proceedings based on Articles 258-260 TFEU. The Charter is addressed to Member States only when they are implementing Union law. Therefore, infringement proceedings concerning the Charter must relate to the provision of Union law which triggers the applicability of the Charter.
Five of the 11 cases relate to asylum and migration.
Infringement Proceedings in the field of Asylum and Migration
In 2014, the Commission opened infringement proceedings against a Member State on the Return Directive raising concerns on the length of detention, material detention conditions, the lack of free legal assistance to returnees in detention centres and the absence of judicial review of detention orders before six months and the limited review of decisions to extend the detention beyond six months (Articles 4, 6 and 47 of the Charter).
Infringement proceedings were also opened against a Member State for incorrect application of the Reception Conditions and the Asylum Procedures Directives. The Commission raised concerns on the duration of the asylum procedure, the effectiveness of remedies against negative asylum decisions, the lack of free legal assistance, the detention of certain categories of asylum seekers, which appears to be applied automatically without an individualised assessment, the right to an effective remedy against a detention decision, and free legal assistance in detention (Articles 6 and 47).
In 2014, the Commission examined how Member States applied the Charter when implementing EU legislation at the Union’s external borders, in particular the non-refoulement principle (Articles 4, 6, 18 and 19). Issues of concern include the application and length of detention, detention conditions, the particular situation of minors, free legal assistance, and effective remedies under the asylum process in some Member States (Articles 6, 24 and 47 of the Charter).
Visa Code and appeal of a visa refusal decision
At the end of 2014, the Commission urged five Member States to act to ensure that appeals against a decision to refuse, annul or revoke a visa provide for access to a judicial body.
The Visa Code Regulation sets out procedures and conditions for issuing visas for short stays and airport transit. It obliges Member States to provide for a right of appeal against a visa refusal/annulment/revocation. Article 47 of the Charter grants individuals the right to an effective remedy before a tribunal, when rights and freedoms under Union law are violated. National laws in the Member States concerned, however, only provided for the possibility of an appeal before non-judicial administrative authorities. The Commission considers this not to meet the standard of independent tribunal set out in Article 47.
Segregation of Roma children in education