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2013 Report on the Application of the EU Charter of Fundamental Rights

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Il 14 aprile 2014 la Commissione dell'Unione Europea ha pubblicato il "2013 Report on the Application of the EU Charter of Fundamental Rights". Approfondisci leggendo il documento di lavoro (parte 1 e parte 2).



Del Report segnalo come molto importanti il paragrafo 1 "Introduction" e il paragrafo 2 "Applicability of the Charter to the Member States".

Il documento di lavoro, parte 1, ricorda, tra l'altro:

"Protection of Fundamental Rights in the EU.
"...The Charter applies to Member States only when they implement EU law. Hence it does not replace national fundamental rights systems but complements them. The factor connecting an alleged violation of the Charter with EU law will depend on the situation in question. For example, a connecting factor exists: when national legislation transposes an EU Directive in a way contrary to fundamental rights, when a public authority applies EU law in a manner contrary to fundamental rights, or when a final decision of a national court applies or interprets EU law in a way contrary to fundamental rights.



Article 15: Freedom to choose an occupation and the right to engage in work
The Charter in its Article 15 (1) protects the right to engage in work and to pursue a freely chosen or accepted occupation.
To promote this right a Directive modernising the Professional Qualifications Directive was adopted on 20 November 2013 and has entered into force on 17 January 2014. (74) The recast Directive must be implemented by Member States within two years after entry into force, by 18 January 2016. It allows EU qualified citizens to obtain the recognition of their qualifications in order to establish and provide services in another Member State.
(74) Directive 2013/55 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on cooperation through the Internal Market Information System (‘the IMI Regulation’), OJ L 354, 28.12.2013, p. 132.)...


Article 17: Right to property ...
UK catch quota
Vessel owners or organisations representing vessel owners have at times challenged the allocation of fishing opportunities by individual Member States before national courts. A case in point is UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, a case decided by a UK court in July 2013. 82 Importantly, the judgment concerned the redistribution of national UK catch quota and analysed in detail whether the decision by the English authorities on the re-distribution of quota was not only in conformity with national law, but did also respect fundamental rights and principles of EU law. It analysed, in particular, the right to property, the principle of legitimate expectations , and the principle and right to non-discrimination . The ruling explicitly referred to the Charter. The judge deciding the case concluded that the relevant English authority had acted in conformity with the latter and EU law in general. (see also below under Article 21 for an analysis of the case from the angle of the right to non-discrimination)


Article 21: Non-discrimination
The Charter prohibits any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. The Charter also prohibits discrimination on grounds of nationality, within the scope of application of the Treaties and without prejudice to any of their specific provisions. Discrimination based on racial or ethnic origin is a violation of the principle of equal treatment and is prohibited in the workplace and outside the workplace. In the area of employment and occupation, EU legislation prohibits discrimination on grounds of religion or belief, disability, age or sexual orientation.

In November 2013, the European Commission has formally closed the infringement procedures launched against Hungary on 17 January 2012 over the country’s forced early retirement of around 274 judges and public prosecutors (104). This had been caused by a sudden reduction in the mandatory retirement age for these professions from 70 to 62. Following the European Commission’s legal action, the CJEU upheld the European Commission's assessment (105) that the change was incompatible with Directive 2000/78/EC which prohibits discrimination at the workplace on grounds of age. Following calls by the European Commission for Hungary to comply with the judgment as soon as possible, the country took the necessary measures and adopted changes to its law. The European Commission is now satisfied that Hungary has brought its legislation in line with EU law. A new law adopted by the Hungarian Parliament on 11 March 2013 lowers the retirement age for judges, prosecutors and notaries to 65 over a period of 10 years, rather than lowering it to 62 over one year, as before. This aligns it with the general retirement age of 65. The new law also provides for the right for all judges and prosecutors who had been forced to retire before to be reinstated in their posts, with no need to bring a case to court. Moreover, they will be compensated for remuneration lost during the period they were not working. The European Commission has closely monitored the correct implementation of the new legislation in practice.
(104) For more information about the infringement proceedings, see the European European Commission Press Release IP/12/24, 'European European Commission launches accelerated infringement proceedings against Hungary over the independence of its central bank and data protection authorities as well as over measures affecting the judiciary', 17.01.2012, available at http://europa.eu/rapid/press-release_IP-12-24_en.htm.
(105) CJEU, C-286/12, European European Commission v. Hungary, 06.11.2012. See also MEMO/12/832.

Case law
In 2013, the CJEU has further developed its case law on the prohibition of discrimination on the ground of age. The fact that the CJEU in its case law on age discrimination explicitly refers to Article 21 of the Charter, which contains the prohibition of any discrimination on ground of age, is to be welcomed. In the case HK Danmark v Experian A/S120, a request for a preliminary ruling from a Danish court on the interpretation of Council Directive 2000/78/EC, the question of the lawfulness of the occupational pension scheme operated by Experian was at stake. Experian had namely set up a pension scheme with different applicable rates according to different age categories, and argued that pension schemes are not covered by the prohibition of discrimination on the grounds of age, as laid down by the Danish Anti-Discrimination Law. The CJEU held, however, that these pension schemes are covered by the said legislation. It concluded that the principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter and given specific expression by Directive 2000/78/EC, must be interpreted as allowing an occupational pension scheme under which an employer pays, as part of pay, pension contributions which increase with age, provided that the difference in treatment on grounds of age that arises therefrom is appropriate and necessary to achieve a legitimate aim, which it is for the national court to establish.



Another Danish age discrimination case Toftgaard (121), is a case on the refusal to grant availability pay to civil servants who have reached the age of 65 and are entitled to a pension. The Danish Law on Civil Servants foresees a system of “rådighedsløn” (availability pay), under which a civil servant may, as special protection in the event of dismissal on grounds of redundancy, retain his current salary for three years and continue to be credited for years of pensionable service, provided he remains available for assignment to another suitable post. Mr Toftgaard was not granted availability pay as he had reached the age of 65 and was entitled to a pension. The CJEU held that Directive 2000/78/EC must be interpreted as precluding a national provision under which a civil servant who has reached the age at which he is able to receive a retirement pension is denied, solely for that reason , entitlement to availability pay intended for civil servants dismissed on grounds of redundancy.
Not only the Danish retirement scheme was under scrutiny by the CJEU regarding its compliance with the Charter, but also the Czech retirement scheme, and more particularly the early retirement support in the agricultural sector. In the Soukupova case (122), a case referred to the CJEU by the Czech Supreme Administrative Court, the CJEU held that in implementing Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund ('EAGGF') Member States are required, pursuant to Article 51 (1) of the Charter, to respect the principles of equal treatment and non-discrimination, enshrined in Articles 20, 21 (1) and 23 of the Charter. Member States, when granting early retirement support in the agricultural sector, financed by the EAGGF, may not rely on the difference in treatment that they are authorized to retain when defining retirement age in the field of social security. On the contrary, in the context of early retirement support for elderly farmers, Member States are required to ensure equal treatment between women and man, and, thereto, to prohibit any discrimination on grounds of gender. In the present case, the difference in treatment by the Czech authorities, consisting in the determination, depending on the gender or number of children, of the age from which that support may no longer be claimed, could not be objectively justified and thus amounted to a violation of the Charter. (123)


120 CJEU, C-476/11, HK Danmark v Experian A/S, 26.09.2013 ('Kristensen').
121 CJEU, C-546/11, Dansk Jurist- og Økonomforbund v Indenrigs- og Sundhedsministeriet, 26.09.2013 ('Toftgaard').
122 CJEU, C-401/11, Blanka Soukupová v Ministerstvo zemědělství, 11.04.2013.
123 See also the 2013 Report on the Application of the EU Charter of Fundamental Rights under 2. Applicability of the Charter to the Member States.




Rulings on age discrimination in France and Germany
In France (125) and Germany (126) cases were brought to court regarding discrimination on the basis of age. The French case concerned a national law which provides that an agent of national electricity and gas industries from 65 to 67 years old can be retired at the initiative of the employer. The German case concerned a state regulation on authorized inspectors and official experts providing for an absolute age limit of 70 years. In both cases the national courts decided that the age limit constituted age discrimination according to Article 21 of the Charter, however, the infringement was justified under Article 52 of the Charter. Article 52 states that fundamental rights can only be limited if this is provided for by law with respect to the essence of those rights. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The French High Administrative Court decided that the limitation was justified because the age limit is necessary to promote access to employment through better distribution between generations. The German Higher Administrative Court decided that the infringement was justified because of public security.


(125) High Administrative Court of France (Conseil d’Etat), case N° 352393 ECLI FR CESSR 2013 352393.20130313, Mrs A v the State of France, 13.3.2013.
(126) Hessian Higher Administrative Court (Hessischer Verwaltungsgerichtshof, 7. Senat), case 7 C 897/13.N, 7.8.2013."


Il documento di lavoro, parte 2, ricorda, tra l'altro:


"Article 34: Social security and social assistance
Article 34 of the Charter recognises citizens' entitlement to social security benefits and social services providing protection in cases of maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. Member States are free to determine the details of their social security systems, including which benefits shall be provided, the conditions of eligibility, how these benefits are calculated, as well as how much contribution should be paid, provided it complies with applicable EU law. European rules ensure that the application of the different national legislations respects the basic principles of equality of treatment and non-discrimination . They guarantee that migrant EU workers are treated in the same way as national workers and that the application of the different national legislations does not adversely affect them.







Article 47: Right to an effective remedy and right to a fair trial
Article 47 of the Charter provides that when EU rules give a right to a person, he or she can go before a court in case this right is violated. This protection is called a right to an effective remedy, because it provides to individuals a legal solution decided by a tribunal when an authority used EU law in an incorrect way. The right to an effective remedy guarantees judicial protection against violations of any EU rule which grants rights to people. It therefore plays a key role in ensuring the effectiveness of all EU law, ranging from social policy, to asylum legislation, competition,griculture, etc.




Article 53: Level of Protection
Article 53 of the Charter stipulates that the Charter shall not be interpreted in such a way as to restrict human rights and fundamental freedoms as recognised in the Member States' constitutions, by Union law, by international law, and by international agreements to which the Union or all the Member States are a party. This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law.
Case law
In the Melloni case (120), the CJEU was asked if a Member State could make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State. Mr Melloni had been sentenced in absentia in Italy to 10 year's imprisonment for bankruptcy fraud. Following his arrest by the Spanish police, he opposed surrender to the Italian authorities. He contended that under Italian procedural law it is impossible to appeal against sentences imposed in absentia. He argued that the execution of the European arrest warrant issued against him should be made conditional upon Italy's guaranteeing the possibility of appealing against the judgment. He based his argument on Art. 47 of the Charter, the right to an effective remedy and to a fair trial, and on Art. 53 of the Charter, arguing that the harter should be interpreted in the light of the provisions of the Spanish constitution, which foresees the possibility of judicial review of convictions.
The CJEU held that the Framework Decision on the European arrest warrant reflects the consensus reached by all the Member States regarding the scope of the procedural rights enjoyed by persons convicted in absentia who are subject to the European arrest warrant. Although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right is not absolute. To make the surrender of a person subject to a condition not provided for under the Framework Decision would undermine the principles of mutual trust and recognition which that decision purports to uphold and would compromise its efficacy. The Court also confirmed that the fundamental constitutional principle of primacy of EU law also applies to the relationship between the Charter, on the one hand, and the national constitutional provisions on fundamental rights, on the other hand. A Member State may thus not invoke a provision of its constitution, even if it ensures a higher level of protection of a fundamental right than the Charter, as a ground for not applying a clear provision of EU law. (120)


120 CJEU, Case C-399/11 Stefano Melloni v Ministerio fiscal, 26.02.2013."


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