1. Ensuring the respect of the Charter of Fundamental Rights of the EU in the implementation of ESIF
24 November 2016

2. Summary Legal framework The charter of Fundamental rights
Relevance of the Charter for ESIF
Guidance document (July 2016)
Remarks

3. Legal framework
Art. 5 (prohibition of slavery) and Art. 31 (fair working conditions) of Charter of Fundamental Rights of the EU
Art. 6 of Reg. (EU) No 1303/2013
Commission Notice – OJ (2016/C 269/01)
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’)

4. The Charter of Fundamental Rights
Drafted in 1999/2000 and solemnly proclamed at the Nice summit, but became legally binding with the entry into force of the Treaty of Lisbon on 1 December 2009
Legal Status : Article 6 (1) TEU:
"[it] shall have the same legal value as the Treaties"
Who is bound by the Charter?
legal obligation for the EU institutions, bodies, agencies and offices in all their actions
legal obligation for Member States when they are implementing EU law

5. Ombudsman's own-initiative inquiry into the respect of fundamental rights in the EU cohesion policy
Inquiry opened by the European Ombudsman, Emily O'Reilly on 19 May 2014
Focuses on the Commission's role in ensuring that EU funding is used in ways that comply with the Charter
the Commission committed to prepare a document providing guidance as regards the respect of the Charter (and to make publicity)

6. Fundamental rights DIGNITY FREEDOMS EQUALITY SOLIDARITY
CITIZENS' RIGHTS
JUSTICE

7. Fundamental rights - DIGNITY
Human dignity
Right to life
Right to the integrity of the person
Prohibition of torture and inhuman or degrading treatment or punishment
Prohibition of slavery and forced labour

8. Fundamental rights – FREEDOMS 1/2
Right to liberty and security
Respect for private and family life
Protection of personal data
Right to marry and right to found a family
Freedom of thought, conscience and religion
Freedom of expression and information
Freedom of assembly and of association
Freedom of the arts and sciences
Right to education

9. Fundamental rights – FREEDOMS 2/2
Freedom to choose an occupation and right to engage in work
Freedom to conduct a business
Right to property
Right to asylum
Protection in the event of removal, expulsion or extradition

10. Fundamental rights – EQUALITY
Equality before the law
Non-discrimination
Cultural, religious and linguistic diversity
Equality between women and men
The rights of the child
The rights of the elderly
Integration of persons with disabilities

11. Fundamental rights – SOLIDARITY 1/2
Workers' right to information and consultation within the undertaking
Right of collective bargaining and action
Right of access to placement services
Protection in the event of unjustified dismissal
Fair and just working conditions
Prohibition of child labour and protection of young people at work

12. Fundamental rights – SOLIDARITY 2/2
Family and professional life
Social security and social assistance
Health care
Access to services of general economic interest
Environmental protection
Consumer protection

13. Fundamental rights – CITIZENS' RIGHTS
Right to vote and to stand as a candidate at elections to the European Parliament
Right to vote and to stand as a candidate at municipal elections
Right to good administration
Right of access to documents
European Ombudsman
Right to petition
Freedom of movement and of residence
Diplomatic and consular protection

14. Fundamental rights – JUSTICE
Right to an effective remedy and to a fair trial
Presumption of innocence and right of defence
Principles of legality and proportionality of criminal offences and penalties
Right not to be tried or punished twice in criminal proceedings for the same criminal offence

15. Relevance of the Charter for ESIF
…the Charter is addressed to Member States (Article 51(1)) only when they are implementing EU law
Member States are not automatically implementing Union law when they hand out support under ESIF
All the Member States' actions undertaken for the implementation of the applicable regulations fall within the scope of EU law
Annex I of the Guidance lists relevant CPR provisions requiring actions and documents by national (central, regional, or local level) authorities implementing EU law
Beyond this list MS may be implementing EU law if criteria established by ECJ are fulfilled

16. As regards Member States, the Charter applies to
All "emanations of State "when implementing EU law":
central authorities
regional and local authorities
other public authorities
In the context of the ESIF : it might apply to ESIF beneficiaries, whatever their legal form

17. The Guidance
The Guidance document was adopted and published in OJ 2016/C 269/01:
First part
The content, legal status and applicability of the Charter
Second part
Implementation of ESIF and the Charter
Third part
How to assess compliance with the Charter in the implementation of ESIF ?
Fundamental rights checklist

18. When are Member States implementing EU law in the context of ESIF ?
1. when establishing the ESI Funds intervention strategy and drawing up the programming documents
2. when setting up the management, monitoring and control system
3. when implementing programmes
In those three stages of implementation of the funds Member States should ensure compliance with the Charter

19. Stage No 1: Establishing the ESI Funds intervention strategy and drawing up the programming documents
MS are considered to act in the scope of EU law when adopting acts or drawing up documents resulting from an obligation included in the CPR, or any of its delegated or implementing acts
Examples: preparation of strategic policy frameworks, Partnership Agreements, programmes …

20. Stage No 2: Setting up the management, monitoring and control systems
MS are considered to act in the scope of EU law when:
- they set up structures and procedures required under the CPR for the management, monitoring and control of the ESI funds or
- if not explicitly required by CPR, when they put in place such structures for the sake of implementing the CPR, fund specific rules or its delegated or implementing acts

21. Stage No 3: Implementing programmes and carrying out concrete actions outlined in a project description for works carried out when implementing ESI funds
actions to be taken by the managing authority, intermediate bodies, certifying authorities, audit authorities for the implementation of programmes …
examples: launching calls for proposals, selecting operations, signing of grant agreements, follow up of the implementation, checking payment claims from beneficiaries …

22. Remarks
Non-respect of the Charter by Member States Could constitute an irregularity
Possible interruptions and suspensions of payments, financial corrections, infringement proceedings under Article 258 TFEU
the 'duty bearer' and the 'rights holder' roles
The concept of due diligence
case in a MS for alleged breach of EU labour law and the EU Charter of Fundamental Rights by ESIF beneficiaries employing North Korean workers