CHAPTER 4 - How does the European Union provide for older people’s rights?
Activities of the European Union (EU) cover a wide range of areas that influence older people’s lives, including active citizenship, anti-discrimination, employment, education and life-long learning, coordination of social protection systems, pensions, social inclusion and participation, volunteering, health promotion and coordination of health care systems, research and innovation, accessibility of goods and services and consumers’ rights. In some of these areas the EU can adopt legislation, whereas in others it merely supports cooperation between countries. The EU also helps Member States to agree on common targets, as for example in the areas of poverty reduction and climate change. In addition, it also promotes innovation and transnational collaboration through its funding programs, for example in the fields of research and development, regional development, or social policies. Such policies and projects set up by the EU make a large impact on the situation of older people in Europe.
This vast array of competences has been outlined in a past AGE publication called “Active Senior Citizens for Europe: A Guide to the EU”. This handbook only complements the wealth of information provided previously in that document, by focusing on EU action that specifically deals with human rights. If you are interested in knowing what the EU is doing more generally for older people and how you can get involved in various EU processes, you are invited to read the aforementioned guide as well as to subscribe to AGE’s newsletter, where you will find up-to-date information about EU developments in the field of ageing and beyond. You may also look into the outcomes of the 'Active Senior Citizens for Europe' project, which include a set of train-the-trainer modules aiming to explain and clarify to older people what the European Union is, understand its decision-making processes and how –directly or through and civil society organisations- they can engage with them.
Human rights vs. fundamental rights - same or different?
The terms ‘fundamental rights’ and ‘human rights’ are often used interchangeably. When it comes to EU action however, the different terminology refers to a different context. When discussing the set of rules that apply within the Union and its jurisdiction, the EU talks about ‘fundamental rights’. On the other hand, the EU uses the phrase ‘human rights’ when describing the regulation of rights applied externally in relation with third states that are outside of the Union. The term ‘human’ rights is therefore used in a more international context. This is why you will notice as you continue to read this handbook that several EU bodies adopt two separate reports or action plans, one on ‘human rights’ and another one on ‘fundamental rights’.
This distinction depends on the legal order (i.e. internal vs external) and the legal framework (i.e. EU Charter of Fundamental Rights vs international treaties) we want to refer to. In terms of substance regardless of whether we are talking about ‘human rights’ or ‘fundamental rights’ we evoke the core entitlements that individuals have by virtue of being human. If one compares international human rights instruments, such as the European Convention on Human Rights and the European Social Charter with the EU Charter of Fundamental Rights, essentially they will come across the same rights, such as the right to life, to non-discrimination, to freedom of speech, etc. albeit with a slightly different language or focus. In fact, as will be explained later on in the handbook, the EU Charter is largely based on the European Convention of Human Rights and the constitutional traditions of EU countries.
So whereas so far in this handbook we have been consistently using the term ‘human rights’, in this chapter, which focuses on the EU, we will also refer to ‘fundamental rights’ to express the concept of ‘human rights’ within the specific EU internal context. In other words, ‘fundamental rights’ and ‘human rights’ are similar in nature and substance; EU action on ‘fundamental rights’ refers to internal EU affairs, whereas its action on ‘human rights’ reflects activities that are taken outside the EU’s borders.
If you want to learn more about the difference and overlapping between human, fundamental and social rights you can refer to an earlier section of this handbook.
4.1 The EU as a human rights actor
Although the EU initially began as a purely economic union it has gradually evolved into an organization spanning many policy areas including climate, environment and health, external relations and security and also justice and migration. In addition to expanding its action to diverse policy areas, the EU has become increasingly invested in the promotion and protection of human rights both internally and around the world. The change of name from the European Economic Community (EEC) to the European Union (EU) in 1993 reflects this change and growth in its focus. EU’s history starts with the establishment of the European Coal and Steal Community. In 1950 six countries, Belgium, France, Germany, Italy, Luxembourg and the Netherlands, came together to create this European Coal and Steel Community as a way of securing a united Europe. They believed that dependence on ones’ neighbours for trade would result in conflicts being solved through communication, as opposed to the previous methods of war which had destroyed the continent of Europe for decades. The events of the Cold War throughout the 1950s and protests in Hungary against Soviet tanks and the Communist regime resulted in the creation of the Treaty of Rome which in turn changed it into the European Economic Community (EEC).
Today the core values of the EU, which are enshrined in EU treaties and legal frameworks, are human dignity, freedom, democracy, equality, the rule of law and respect for human rights. A turning point for EU’s stance on human rights was the adoption of the Treaty of Lisbon, which entered into force in December 2009 giving legally binding force to the Charter of Fundamental Rights. As will be explained below, the EU Charter of Fundamental Rights is the main instrument that guides EU action in this area. In addition, several EU organs, processes and programs are dedicated to the promotion of human rights in order to ensure that fundamental rights remain at the heart of all EU policies. Moreover, with the ratification of international treaties and the enhanced collaboration with third countries and other intergovernmental organisations, EU’s capacity to improve human rights across Europe and internationally has increased.
The EU is more than an economic union
The transformation of the European Union has also been crystalized in the caselaw of the Court of Justice of the European Union (CJEU) According to a landmark case, the EU “is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe, as is emphasized in the Preamble to the Treaty” (see CJEU Cases C-50/96 Schröder  ECR I-774 and C-270/97 Sievers  ECR I-933)
How EU legislation has helped promote human rights in Ireland
Although Ireland’s membership of the EU is one of the most significant steps taken by the republic on its journey as an independent nation, it took three applications and a few changes of the constitution for Ireland to become a member-state. Prior to joining this larger European market in 1973, Ireland, due to its agricultural based economy, exported the majority of its goods to the United Kingdom. Ireland was still a poor country at that time, with a relatively high unemployment rate, necessitating generations of its younger citizens to emigrate in search of a better life. The European Economic Community (EEC), therefore, posed an attractive move for the Irish economy, offering grants to improve Irish education and training, agriculture, the environment, travel, research and innovation. EU membership would also give Ireland a voice at an international level, and a higher profile in international affairs.
The Marriage Bar was introduced in Ireland in the 1930s – this was a ruling that married women could no longer be employed by the state. While this may have been advanced in order to create more opportunities for male workers and, therefore, reduce overall unemployment, the move was sanctioned by both church and state to affirm that a woman’s place was in the home, working for the benefit of her family. The Marriage Bar led to women who had held positions in the civil service prior to 1973 being forced to give up their jobs once married. While the move was defended as a means to improve the Irish economy and lower unemployment levels, its implementation had no economic benefits. Instead, it bound Irishwomen more forcefully to the rules of a traditional patriarchal society. As stated, the Catholic Church played a pivotal role in the Marriage Bar, as the wish to restrict mothers to a purely domestic role was deeply rooted within the Irish culture and the Church-state bond.
Irish women also faced a number of other social restrictions imposed by the state, including not being allowed to sit on a jury, or being able to claim their Children’s Allowance in their own name. The effects of the Marriage Bar are still seen today. Many women forced to give up their jobs in the 1970s also lost their employment insurance cover under the social welfare system. Many years later, these women are discovering they either do not qualify for a pension, or receive only a small state pension which is not sufficient for normal living.
On the 1st of January 1973, Ireland officially became a member of the EEC (later to be known as the EU), joining a Union with a strong stance on gender equality in all aspects of life. In order to comply with EU legislation, Ireland had to remove the Marriage Bar and other laws that discriminated based on gender. Joining the EU offered various benefits to Irish citizens, and in particular, the move benefited the female population as it gave them some of the rights that they had been denied for decades.
Other EU policies also indirectly enhanced the protection of human rights in Ireland. For example, the Common Agricultural Policy (CAP) saw farmers all over the country receiving subsidies totalling millions of euro to improve the conditions of farms in Ireland. Both the elimination of the marriage bar and the introduction of CAP had great benefits for the older generation in Ireland, providing job and pension security protected under policies and legislation.
Criteria for EU Membership
One of the ways in which the EU promotes and protects human rights is by requiring States that wish to become members of the EU to fulfill certain economic and political requirements known as the “Copenhagen Criteria”. The Copenhagen Criteria require that a candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities, a functioning market economy, combined with the capacity to cope with competitive pressure and market forces within the Union. If a state satisfies these conditions, it can become party to the founding treaties of the Union and is thereby subject to the privileges and obligations of EU membership. Hence, the prospect of gaining EU membership encourages countries to adopt and implement human rights legislation that is of an acceptable EU standard. As such, the EU showcases its strong commitment to human rights, the prevention of discrimination and the upholding of the rule of law.
Human rights clauses in EU’s external agreements
Every time the EU signs an agreement with a third country it includes so-called ‘human rights clauses’. These clauses showcase that the protection human rights are an essential element of the concerned agreement and provide for an immediate response if breaches of human rights occur.
The clauses are also the legal basis for taking measures in order to respond to violations of human rights by third countries. Therefore, respect for human rights permeates every aspect of EU’s relations with third countries.
Limits to EU’s role in promoting and safeguarding rights
The European Union (EU) works on the basis of rule of law which means that all actions taken by the EU are based on its treaties. These treaties have been approved voluntarily and democratically by all EU Member States. EU treaties set out the objectives of the EU, the rules that apply to its institutions and how decisions are made and the relationship between the EU and its members. They constitute a legal base under which institutions of the EU can adopt legislation. If a policy area isn’t cited in a treaty, the European Commission can’t pose a law in that area as it would have no legal basis. As there are legal limits to what the EU can do to protect the rights of its citizens, Member States also need to play their role in the protection of these rights. In fact EU action to promote and protect human rights is delimited by two principles, first the principle of subsidiarity and second the principle of proportionality.
The principle of subsidiarity
This principle ensures that all decisions are taken as closely as possible to the citizen and that constant checks are made to ensure that action at Union level is justified in the light of the possibilities available at national, regional and local level. According to the subsidiarity principle the Union doesn’t take action, except in the areas that fall within its competence, unless it is more effective than the action in place at the national, regional or local level. There are however very few areas where the EU has exclusive competence, especially regarding the Economic and Monetary Union, i.e. the coordination of economic and fiscal policies of countries of the Eurozone.
The principle of proportionality
This principle is closely bound up with the principle of subsidiarity. It requires that any action which is taken by the Union should not go beyond what is necessary to achieve the objectives of the treaties.
In sum, EU action is limited first by the objectives and areas of competence included in the Treaties and second, even if there is EU competence in a certain field, that does not necessarily mean that the EU can act, as its action is further limited by the principle of subsidiarity and proportionality.For more information on the EU competences, follow this link.
Brexit and the impact on human rights
One of the main issues surrounding Brexit is what will happen to the protection of human rights in the UK once it has left the EU, since a large part of the human right protections come from EU Law, both from the EU Charter and specific legislation.
For example up until now, UK citizens were able to count on free access to healthcare when traveling across Europe, thanks to the freedom of movement within the EU. However, it’s unclear what will happen to the system after the UK leaves the bloc. Likewise, currently UK citizens have the right to work anywhere in the EU without having to get a visa, something which could be dashed if freedom of movement stops. But it is not only the rights of UK citizens that are at stake due to Brexit, but also the 3.6 million EU nationals residing in the UK. The UK Prime Minister Teresa May has recently announced that EU nationals living in the UK will be able to gain settled status so they can remain in the UK post Brexit. They also won’t have to give fingerprints, carry ID cards, or meet an income threshold in order to remain as was believed would have to happen.
Concerned by the implications of Brexit on older people, UK members of AGE Platform Europe addressed in January 2017 a letter to the Secretary of State for Exiting the European Union, David Davis. In this letter they raise potential risks to the rights of older persons, in case the UK post-Brexit does not live up to the EU standards. For example, our members stress the need to respect accessibility, give assistance to persons with reduced mobility while traveling, guarantee fair working conditions, ensure data protection, etc.
Eventually the impact Brexit will have on the citizens of Britain and their rights will all depend on the laws that are passed to deal with the exit from Europe. For example, the UK government has clarified that ‘the protections in the Equality Act 2006 and 2010 will be kept and workers’ rights which have developed from EU law will also be retained’ 1.
If you want to learn more about negotiations on Brexit and the impact on human rights, Rightsinfo has developed a series of infosheets that are available here. To read the full letter sent by AGE Members, please click here. In addition, here you may find a relevant position paper from Age UK, highlighting the main challenges for older persons’ rights after the Brexit.
4.2 EU competences on human rights
The founding documents of the EU, known as EU treaties give the Union the mandate to combat social exclusion and discrimination, and to promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. The EU is more over bound by the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.
Every action taken by the EU is founded on treaties that have been agreed voluntarily and democratically by all EU member countries. EU treaties act in the EU legal order in a similar way as a constitution would act at the national level. They have supremacy over all other EU rules and they set out the Union’s objectives and competences, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries. As a result, if a policy area is not cited in a treaty, the EU bodies cannot take action or propose a law in that area.
Treaties form the constitutional basis of the EU. Much like a constitution, they could be also considered “living documents” as they are subject to circumstantial change. Treaties are therefore amended to make the EU more efficient and transparent, to prepare for new member countries, to introduce new areas of cooperation – such as the single currency and also to address emerging common challenges within the union, such as demographic shifts, the financial and economic crisis, climate change and the fight against cross-border crime, etc., but also to adopt new instruments to address common challenges more adequately.
Certain amendments of EU treaties have significantly increased the EU’s capacity to act on human rights violations and promote rights in its member states and beyond. The Treaty of Rome in 1957 set the first initial tone as it proposed the founding of the EEC and Euratom, which helped the extension of European integration to include general economic cooperation. It proposed the idea of Europe as a unit of peace, solidarity and democracy and established one of the first common markets in Europe where people, goods and services could move freely. It also introduced the requirement of equal pay between men and women and provided the competence to develop the first Equality Directives, which prohibited discrimination on the grounds of gender in relation to employment, vocational training and working conditions. This was a major step in the progression of human rights in the EU.
The Maastricht Treaty (known as Treaty on the European Union), which entered into force on 1 November 1993, changed the name of the European Economic Community to simply "the European Community", introducing new forms of co-operation between the Member State governments and encompassing political alongside economic objectives- for example on defence, as well as in the area of "justice and home affairs".
Having the European community working under a common defence policy highlighted a turning point in the history of Europe. For decades war between neighbouring countries has dominated the European society, whereas with the introduction of this treaty EU Member States were working together as a single union against the possibility of war. The introduction of the ‘cooperation in the field of justice and home affairs’ in the EU competences has been regarded as one of its most momentous innovations. Thanks to constants developments in this area, EU citizens have a right to live in any EU country. Borders can be crossed almost without noticing since the Schengen Agreement abolished checks at most of the EU's internal borders (with the exception of Bulgaria, Croatia, Cyprus, Ireland, Romania and the United Kingdom). The EU also works to protect citizens from international crime and terrorism, and to ensure their access to the justice system and respect for their fundamental rights regardless of their place of residence.
The Treaty of Amsterdam entered into force in 1999 with the main objective of reforming the EU institutions in preparation for the arrival of future member states. However, it also succeeded in raising the bar for human rights competences as it introduced a specific power to combat discrimination on a wide range of grounds such as sex, racial or ethnic origin, religion, disability, age or sexual orientation. This power tool was set out in article 13 of the Treaty of the European Community and led to the revision of the Gender Equality Directives but also to the adoption of a new directive targeting – among other grounds – age discrimination in employment. However, it must be noted that in order for the EU to take action in the area of discrimination the unanimous agreement of the Council (which includes all Member States of the EU) is required.
In recent years, there have similarly been two other major improvements relating to the development of anti-discrimination law in the EU and EU competence on human rights. Firstly, the power and functions of the EU relating to equality and other human rights were recently amended and enhanced by the ratification of the Lisbon Treaty which entered into force on 1 December 2009 and made significant changes to the constitutional framework of the EU. This treaty introduced a new focus on human rights enshrining the binding force of the Charter of Fundamental Rights and conferring to the provisions of the Charter the same legal value as the treaties. It moreover provided the EU with modern institutions and optimised working methods to tackle both efficiently and effectively today's challenges. Secondly, as a result of the Lisbon Treaty and other key decisions by the EU institutions, there is a growing convergence between the EU human rights frameworks and other intergovernmental human rights frameworks of the Council of Europe and the United Nations for example.
Austerity, human Rights and EU’s responsibility
The austerity measures which were adopted by the EU and its Member States to attempt to repair the growth of the economy include cuts to public social spending, social security benefits and social protection programmes; including pension schemes and labour market reforms. Selective tax increases and the privatisation of public services were used as a measure to boost competiveness and increase revenue generation but would have negative impacts on those already struggling, including older persons who are high users of public services. Policies taken in the context of severe fiscal consolidation have greatly affected older persons.
For example, the European Committee of Social Rights has been highly critical of the impact of austerity measures taken by Greece, in particular on the right to social security of Greek pensioners. However, notwithstanding the role of EU institutions in requiring these actions, these measures have been deemed not to amount to implementation of EU law by the Court of Justice and, as such, outside the scope of application of the Charter of Fundamental Rights.
To understand better the impact of the crisis on the rights of older persons you may read AGE’s publication ‘Older people also suffer because of the crisis’.
Employment Framework Directive.
Thanks to the expansion of EU competences in the area of non-discrimination, the EU has adopted the Employment Equality Framework Directive 2000/78/EC. This piece of legislation is aimed at combatting discrimination on the grounds of disability, sexual orientation, religious beliefs and age in the areas of employment and occupation, vocational training and in membership of employer and employee organisations. Today all EU Member States have trasposed this law in national law. Thanks to the integration of this directive in national law, employers started to be more cautious about potential age discriminatory behaviours. For instance, they soon stopped mentioning age limits in job ads although many still continue to look for a “young and dynamic” employee or to present job profiles/skills that are usually associated with youth. Automatic salary increases based on age have now been replaced by performance related increases to avoid age-based distinctions. In addition, according to caselaw of the Court of Justice of the EU non-discrimination on the ground of age is now a general principle of EU law, which must be given full effect by national courts.
Despite these positive developments, according to a 2015 survey age is the most commonly perceived disadvantage in the labour market. Moreover, age based biases die hard resulting in unfavourable treatment of older people. For instance, older workers may be excluded from training, since employers do not want to invest on employees who are approaching retirement age.
Additionally, according to Article 6 of this directive, prohibition of age discrimination is not absolute and Member States can identify areas where differential treatment on the ground of age can be justified. It is noteworthy that age is the only ground of discrimination for which wide exceptions are authorised. As a result, many unjustified cases of age discrimination continue to be accepted as legitimate on the basis of stereotypes and general assumptions. As the European Network of Experts in the non-discrimination field explained: “This creates an inherent vulnerability at the heart of the prohibition of age discrimination and means that a careful balance has to be struck in order to ensure that the prohibition is meaningful”.
For example case law has confirmed that it is legitimate to force older workers to retire to encourage the promotion of younger workforces and to prevent disputes on employees’ fitness for work. This entrenches the idea that age itself (not physical or mental condition) makes you unfit for work. Persons with disabilities are better protected, as they cannot be forced to leave employment because of their disability.
To learn more about the prohibition of age discrimination under the Employment Directive you may read a publication by the European Network of Experts in the non-discrimination field.
The European Commission has also proposed in 2008 the adoption of a Directive that would expand protection from age discrimination (among other grounds) in access to goods and services. However, due to lack of consensus in the Council this proposal hasn’t yet seen the light of day. More information about this initiative can be found in the next case study.
Changes after the Lisbon Treaty
Thanks to the introduction of the Treaty of Lisbon in the late 2009, the European Union, gained legal personality enabling the Union to conclude international agreements and join international organisations. The EU is now able to speak and take action as a single entity. The Lisbon Treaty also saw to the increase in the number of areas where the European Parliament shares the co-decision with the Member States of the EU. This meant that the Members of the European Parliament which are elected at national level every 5 years are now given more power and a say in the law making process in the EU. This treaty further led to the increase in collaboration between the EU and national parliaments which gave them the right to comment on draft laws and to ensure that the EU doesn’t overstep their authority.
The Lisbon treaty has also enhanced the importance of dialogue between the EU and civil society associations. According to a revised provision the EU should consult civil society associations prior to European policy-making decisions being launched in order to evaluate different options and their impact to society (Impact Assessment procedure).
The Lisbon Treaty also introduced the European citizens’ initiative. This allows for citizens to suggest to the European Commission legislation on matters of EU competence. In order to be considered the citizens’ initiative must be backed by a minimum of 1 million EU citizens from at least 7 out of the 28 member states. These issues can be related to various topics for example to do with the environment, healthcare service or transport, as long as the EU has competence to legislate.
The Treaty of Lisbon also makes it easier for individuals (natural or legal persons) to bring a legal case against decisions of the institutions, bodies, offices or agencies of the European Union, if they are directly affected by it. Last, the Treaty of Lisbon envisages accession by the EU to the European Convention of Human Rights, which is discussed in the chapter about the Council of Europe.
More of the developments in the institutional framework of the EU, are discussed in the following sections. To learn about the full range of changes brought by the Treaty of Lisbon, you can refer to the “Active Senior Citizens for Europe: A Guide to the EU”.
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the EU brings together in a single document the fundamental rights protected in the EU. The Charter contains rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. Proclaimed in 2000, the Charter became legally binding in the EU with the entry into force of the Treaty of Lisbon, in December 2009. To understand better why the adoption of this Charter was important a bit of historical context is necessary.
The history of the Charter
As explained before, the EU in the beginning was conceived as a purely economic union and its legislation was also aiming to regulate economic affairs, such as issues of internal market and freedom of movement of goods and services. However, it soon became evident that even economic legislation could have an impact on the rights of people in the EU. For example, a regulation of the wine market, which prohibits any new plantation of a certain category of wine may have an impact on people’s right to property. Or a product that is sold across EU borders may put consumers’ health and safety at risk. Such rights are already protected under national constitutions as well as other international treaties, like the European Convention on Human Rights (ECHR), which is discussed in the chapter about the Council of Europe. However the European Union was not bound by these instuments and therefore not obliged by law to respect the rights they enshrined, whereas its Member States were legally obligated to prevent violations of those rights.
The Court of Justice of the EU quickly realized this anomaly and started referring to the constitutions of the Member States and the ECHR to check whether EU action respected human rights. Gradually, it was decided that it would be better for the EU to have its own reference document as a means to ensure a high level of protection of human rights. After years of negotiations, the Charter of Fundamental Rights was adopted, bringing together all the rights found in the caselaw of the Court of Justice of the EU, the rights and freedoms enshrined in the European Convention on Human Rights and also other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments. As such, the Charter does not create any new rights for EU citizens, but is just an additional tool helping to ensure that human rights are protected within the EU’s legal order. The Charter of Fundamental Rights now has the same legal value with the EU treaties, meaning it can be directly applicable in European court cases against any EU institutions or Member States where they violate fundamental rights when implementing EU law. Now EU institutions have to respect the rights which are enshrined within the Charter and so do EU Member States when they are implementing EU law.
The application of the Charter in Poland and the United Kingdom
Upon their request, a Protocol was adopted to clarify the applicability of the Charter to Poland and to the United Kingdom. This however does not exempt them from the obligation to comply with the Charter. Far from creating a derogation from these countries, as stated by the British government before the House of Lords, this Protocol is ‘an interpretation guide rather than an opt-out'. To understand better the implications of this protocol you can have a look at a study of the European Parliament.
Limitations of the Charter
While the Charter enshrines a number of rights that are relevant to older people, such as the rights to non-discrimination, social security, health care and education, this does not mean that the EU is legally obliged to take all necessary steps to ensure that these rights are fulfilled. The Charter does not give to the EU new competences to act in these areas. Although many of the rights set out in the Charter require positive action to be enforced, for instance the rights to decent housing, preventive health care and education, the EU is not expected to adopt new laws and policies to make these rights a reality. It simply has to check whether these rights are respected, every time a new law or policy is proposed at EU level based on its existing competences. Therefore, the Charter is mainly a compass for all EU policies, meaning that it ensures that fundamental rights are taken into account in the EU political processes.
Understanding the limits of the EU Charter
To understand the difference between respecting, protecting and fulfing rights you can refer to chapter 1 of the handbook.
Moreover, although the Charter is now legally binding, it only applies to the legal order of the EU. Whereas the EU institutions cannot take any action that violates rights included in the Charter, Member States are only compelled to comply with the Charter when EU law is being implemented. The following image explains this in more details.
How the Charter applies in EU Member States
The provisions of the Charter apply at national level only when States are implementing EU law, such as when they are applying EU regulations or decisions or an EU directive. For example, the Charter applies when EU countries adopt or apply a national law implementing an EU directive or when their authorities apply an EU regulation directly. In cases where the Charter does not apply, the protection of fundamental rights is guaranteed under the constitutions or constitutional traditions of EU countries and international conventions they have ratified. This means that individuals are unable to take a member states to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law.
Learn how the Charter is used at national level
A leaflet prepared by the Fundamental Rights Agency explains how national parliaments, governments and courts can use the Charter and shows how the Charter was used at the national level in 2015.
Two examples are given to clarify this. Please refer to the above image to understand the process better.
Example where the Charter does not apply
An older person claims that his right enshrined in article 25 (rights of the elderly) and the right to privacy are violated because the conditions in the public nursing home where he/she lives do not allow visits. In this case the Charter does not apply as the EU does not have competence in this area and there is no EU law covering the provision of elder care. Therefore Member States have their own rules regulating the conditions of nursing homes. The individual in question can claim their rights in national courts but not referring to the EU Charter. He/She can refer to the constitutional rights of his country, national laws about privacy or quality of care for instance but also to the right to the protection of family life, which is included in the European Convention of Human Rights, since all EU Member States are bound by that treaty. Equality Bodies and national human rights institutions – which are not judicial bodies - can also help this citizen with his/her claim.
Examples where the Charter applies
An EU citizen claims that an insurance company is applying discriminatory practices, as the insurance premium is based on the sex of the insured persons. Here the EU Charter applies as there is an EU directive which covers non-discrimination in access to goods and services bases on sex.
An asylum seeker in Belgium claims that his right to protection from violence has been violated because he was sent back to Greece where he first asked for asylum but where detention conditions are really bad. Here the Charter applies because there is an EU regulation which obliges Belgium to send the asylum seeker to the country where he first entered the EU.
In the above examples, the claim in question is about Member state action which derives from an obligation set by EU law (directive or regulation). In these cases, the Charter applies because Member States act in the scope of EU law. In other words, here Member states fulfill an obligation imposed by EU law. Here the claimant can go to national courts referring to the relevant provision of Charter of Fundamental Rights which has been breached. National Courts can then refer the case to the Court of Justice of the EU, for a preliminary ruling. Preliminary rulings allow national judges to consult the EU Court of Justice regarding the interpretation or validity of an EU law.This ensures that EU law is not applied in diverging and unequal ways across Member States. The Court of Justice of the EU – in principle - does not impose sanctions. After the preliminary ruling it is up to national courts, based on the deliberations of the European court, to decide and impose sanctions, in case a violation is found.
In this example, alternatively the Commission can start an infringement procedure against a State, in case it fails to comply with EU law. Where necessary, the Commission may refer the case to the European Court of Justice. An example of an infringement procedure initiated by the European Commission is discussed in the related part of the handbook.
Relevant provisions in the Charter for older people in Europe
Article 25 of the Charter is dedicated specifically to ensuring the fundamental rights of the elderly; “The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”. The following article 26 may also be applicable to many older persons as it deals with the integration of persons with disabilities; “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community”. Article 21 on non-discrimination also makes reference to age and is important for the security of older persons; “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 shall be prohibited”. Gender equality is also crucially important for those whom are ageing and article 23 could be applied in instances where such equality is lacking; “Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”. The Charter also includes articles about social protection, health, consumers’ rights and many other areas of older people’s lives.
Learn how to use the Charter of Fundamental Rights
A number of online tools have been developed to help you learn more about the provisions of the Charter and how to identify whether a violation falls within its scope.
- Charterpedia is an online tool which provides easy-to-access information about each of the 54 articles of the Charter of Fundamental Rights of the European Union. Here you can also find examples of relevant caselaw, relevant publications of the Fundamental Rights Agency but also how the Charter is used at national level. To access the part about the article on the rights of the elderly, click here.
- Charterclick, is an online tool, which was developed by an EU-funded project. It ncludes an admissibility checklist that aims at enabling victims of fundamental rights violations and their intermediaries to identify whether their claim falls within the scope of the Charter or not.
- The European Law Academy has put together a Library of Charter-specific training materials, which offers a wide spectrum of trainings on the Charter
Human Rights in EU’s internal and external affairs
The EU institutions are required to take into account the Charter of Fundamental Rights in the design and implementation of legislation and policies, both regarding issues that are internal to the Union and in the external relations of the EU. In this part we give a quick overview of how the Charter is implemented within the EU and in external affairs, but also discuss some limitations in EU’s competences and issues of debate. In the next section of this handbook we look more into details into what the different EU bodies are doing to put the Charter and other human rights instruments in effect, while focusing on those activities that are more relevant for older people’s rights.
Human rights vs Fundamental rights
Remember that as discussed in the beginning of this chapter of the handbook, the EU uses the term human rights to refer to its action at international level and in relation with third countries and uses the term fundamental rights to describe action taken at internal level (i.e. covering relations with the EU Member States)
EU internal affairs encompass the basic workings of the EU. A lot of EU activities and policy instruments relate to a vast array of rights, such as education, health, non-discrmination and consumers’ protection although they are not explicitly described as human rights-related initiatives. For example freedom of movement is a key value and principle of the EU internal market. Although officially this is an area of economic interest, it positively affects the rights of over 500 million European citizens who have access to goods, service, jobs, business opportunities and the cultural richness of the 28 member states of Europe. To have a full idea of what the EU is doing for older people you can have a look at AGE publication “Active Senior Citizens for Europe: A Guide to the EU”.
As far as action on fundamental rights is concerned, the European Commission, the European Parliament and the European Council have adopted processes and tools that allow them to routinely take into account the Charter in the preparation of law and policy. For example, through impact assessment procedures EU bodies can evaluate how legislative and policy proposals affect fundamental rights. EU agencies are also required to mainstream fundamental rights in their work. Moreover, the European Ombudsman deals with complaints about maladministration in EU institutions, including investigations about the failure of EU bodies to respect fundamental rights. These duties are discussed in following sections, which explain the work of EU bodies to promote human rights.
Despite the significant progress that has been made to ensure that the Charter is fully complied with in the drafting and discussion of legislative proposals in the Union, there are some concerns that the Charter is neither taken into account consistently in all areas where EU is active, nor has it been instrumental in changing the situation on the ground.
Firstly, as explained above the Charter states that the institutions of the Union shall "respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties" (article 51). This means that the Charter of Fundamental rights is a negative guarantee, intended to ensure that EU action does not negatively impact on fundamental rights; it does not require EU bodies to proactively promote human rights. However, in a study commissioned by the European Parliament it has been argued that the Union should be equipped with a stronger mechanism that allows EU bodies to identify where further EU action is necessary in order to protect and fulfil the rights, freedoms and principles of the Charter. Otherwise, concludes the report “the Charter's values are being threatened by the decentralized and uncoordinated action of the EU Member States”.
Secondly, concerns have been raised regarding the extent to which fundamental rights have been considered in the responses given to the debt crisis. The EU participates in related decisions through the European Semester; a "Fiscal Compact", which aims to maintain public deficits under strict control; enhanced surveillance mechanisms imposed on EU Member States experiencing financial difficulties or having called on support; and the establishment of a new, permanent financial support mechanism, the European Stability Mechanism, to avoid the contagion from one country to other countries sharing the Euro currency. EU institutions that are involved in these processes remain fully bound by the Charter of Fundamental Rights. The EU Member States too, insofar as they are adopting measures required from them under the European Semester framework, or imposed on them in order to avoid serious imbalances threatening the stability of the eurozone or as conditionalities for the provision of loans, should be considered as acting in the scope of application of Union law and thus, as bound by the Charter. However, according to the above-mentioned study of the European Parliament, the Charter of Fundamental Rights has not been taken adequately into account in the setting up and the implementation of these tools. Unfortunately, this situation gives signal that fundamental rights are not as important as economic considerations, despite EU’s commitment to promote and protect human rights.
Address fundamental rights concerns in the European Semester
The fact that fundamental rights considerations are almost entirely absent from these processes is particularly problematic since the imposition of budgetary measures may have an important impact, for instance, on the right to social security (Article 34), on the level of provision of healthcare (Article 35), or on access to services of general interest (Article 36). The Commission has announced its intention to pay greater attention to "the social fairness of new macroeconomic adjustment programmes to ensure that the adjustment is spread equitably and to protect the most vulnerable in society". Older people’s organisations should make sure as they monitor the situation in their countries that fundamental rights are included in the European Semester, and that the country-specific recommendations as well as the annual growth survey recommendations the Commission submits to the Council take into account the normative components of the social rights of the Charter.
Respect for human rights is a fundamental part of all EU relations with non-EU countries and international institutions. Article 21(1) of the Treaty of the European Union (TEU) imposes on the EU to be guided, in its action on the international scene, by the principles of democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity and respect for the principles of the United Nations Charter and international law. EU caselaw (Front Polisario case) has also confirmed that EU institutions cannot ignore the requirements of the Charter of Fundamental Rights when they take action in the area of external policies. This means for instance that the EU should make sure that human rights are respected when they provide financial support to third countries. In addition, all cooperation as well as trade agreements with third countries contain a clause stipulating that human rights are an essential element in relations between the parties.
The EU actively supports human rights and democracy around the world, using various tools and methods at its disposal, including financial assistance. The Foreign Affairs Council adopted in July 2015, the second EU Action Plan on Human Rights and Democracy 2015-2019. This Action Plan prescribes specific activities and priorities for EU’s relation with third countries. Unfortunately, the EU does not have a similar action plan that can act as a roadmap for the Union’s internal affairs. This is why AGE and other organisations have argued in the past that the EU should also adopt specific priorities in the field of fundamental rights.The implementation of the Action Plan on Human Rights and Democracy is a joint responsibility of the European External Action Service (EEAS), the Commission and the EU Member States, in close consultation with the European Parliament and civil society.
To enhance the effectiveness and visibility of the new EU human rights policy, the Council also appointed an EU Special Representative for Human Rights (EUSR). The EU further pursues Human Rights Dialogues with over 40 countries, established in accordance with the EU Guidelines on Human Rights Dialogues. Morever, the Union organises Electoral Observation Missions to ensure free and fair elections in situations of democratic transition, in order to ensure the respect for the individuals’ right to political participation. More information about EU’s external action on human rights can be found in the following section.
The EU is sometimes criticized that it applies stricter human rights standards for third countries than it does internally. For example, EU’s policy on immigration has been described as violating the UN Refugee convention. Also the EU is blamed for failing to monitor closely the human rights record of its Member States whereas it has high expectations in its relations with third countries.
EU and the Sustainable Development Goals
As explained in the chapter about the United Nations, the Sustainable Development Goals (SDGs) is a comprehensive policy framework aimed at ending all forms of poverty, fighting inequalities and tackling climate change, while ensuring that no one is left behind. All countries, developed and developing alike, have a shared responsibility to achieve the implementation of the SDGs. This means that the EU is tasked with taking into account the SDGs both in its internal and external action. This is why the SDGs feature in all of the European Commission’s 10 priorities. For example, EU policies on gender equality supports progress related to the SDGs. To learn more about how the EU is working towards achieving the SDGs, you may have a look at this communication from the Commission.
In addition, EU’s development policy, which plays a central role in the implementation of this agenda has paid some attention to older persons and ageing.
References to older people and ageing-related issues in EU development polices (a list by HelpAge International)
- The EC Communication on ‘The EU role in Global Health’ from 2010 makes brief references to ageing and also to non-communicable diseases (NCDs).
- The EC Communication on ‘Social Protection in EU Development Cooperation’ in August 2012 emphasises the aim of equal and universal access and draws attention to the ILO Recommendation 202 on national social protection floors, which includes as part of its basic social security guarantees basic income security for older persons.
- In February 2013, the EC Communication ‘A Decent Life for All: Ending poverty and giving the world a sustainable future’ explains that global ageing is a key challenge for developing countries and will have implications for health services and pensions (pg 4).
- The follow-up EC Communication in June 2014 ‘A Decent Life for All: from vision to collective action’ highlighted the importance of data disaggregation and stated that population dynamics must be mainstreamed across all the targets in a post-2015 framework. It also highlights the burden of NCDs and the importance of providing quality health services for all including persons with disabilities and older people.
- In June 2013 Council Conclusions on ‘The Overarching Post 2015 Agenda’ emphasised the need to address inequalities and promote social protection floors and decent work for all.
- In December 2014, Council Conclusions on ‘A transformative post-2015 agenda’ referred explicitly to older people and age in ensuring that no-one is left behind or denied their rights. They also refer to data disaggregation including by age and social protection for all.
- In November 2014, the European Parliament resolution on the ‘EU and the global development framework after 2015’ highlights social protection floors and mentions disaggregated data (although not by age or other factors explicitly).
- In February 2015, the ‘EC Communication on a Global Partnership for Poverty Eradication and Sustainable Development after 2015’ stated that it is essential to address inequality and social exclusion, in particular among the most vulnerable, including older people, including through the use of tools such as gender and age markers.
- On 19 May 2015, the European Parliament adopted a resolution on ‘Financing for Development’, which is relatively strong on human rights and called for better targeting of marginalised groups, including the ‘elderly’. It stresses the importance of Universal Health Coverage, social protection and data disaggregated by age and other factors.
- On 26 May 2015, the Council Conclusions on ‘A New Global Partnership for Poverty Eradication and Sustainable Development after 2015’ reinforced this point about the need to give special attention to the most disadvantaged and vulnerable, including older people. It also importantly states that to achieve the objectives of reducing inequality and leaving no one behind, relevant quantitative and qualitative indicators should be gender and age sensitive, include a human rights dimension and, where possible, be disaggregated by income, gender, age and other factors.
Support to civil society
Perhaps one of the most influential ways in which the EU promotes human rights is by providing financial support to civil society organisations in the EU and across the world. EU grants are available for organisations both within and outside the EU. For example, AGE Platform Europe receives an operational grant throught the Rights, Equality and Citizenship (REC) Programme. This funding programme supports NGOs develop trainings, participate in mutual learning opportunities, undertake awareness raising activities but also do studies and research. Funding opportunities under the REC programme cover a wide range of fundamental rights:
- Promote non–discrimination
- Combat racism, xenophobia, homophobia and other forms of intolerance
- Promote rights of persons with disabilities
- Promote equality between women and men and gender mainstreaming
- Prevent violence against children, young people, women and other groups at risk (Daphne)
- Promote the rights of the child
- Ensure the highest level of data protection
- Promote the rights deriving from Union citizenship
- Enforce consumer rights
Submit a proposal for EU funding
To learn about available opportunities for EU funding you can check out the dedicated page of AGE’s website
The EU also funds projects and supports civil society in third countries. A number of such initiatives have helped promote the rights of older persons in those countries.
Experiences of Helpage International with EU funding
An EU funded project in Tanzania aims to protect older women from witchcraft related killings and violence. It involves a range of stakeholders at local and national level and includes training older women activists to raise awareness of older women’s rights and working with local authorities, community members and civil society to tackle negative attitudes, behaviours and practices. A photographic reportage of this project is available here.
There is also an EU-supported project in South Africa which aims to strengthen the voice of older people in South Africa to engage with local government by strengthening Older Peoples Forums (OPFs) at the grassroots level and reinforcing dialogue between older people in the community and CSOs working at the district, provincial and national levels so that older people can take a more active role in improving service delivery and development activities and can meaningfully engage with local government structures to ensure South African National Development Plan activities integrate older peoples’ perspectives and needs.
In addition, the EU organises every year an EU-NGO Forum on Human Rights, which promotes the exchange of best practices and lessons learned in various fields related to the promotion and protection of human rights across the world.
EU funding instruments that support civil society in third countries
The European Instrument for Democracy and Human Rights (EIDHR) is a policy instrument that provides financial assistance to civil society organisations in non-EU countries to complement EU bilateral and multilateral development cooperation policies and tools. The EIDHR is designed to help civil society to become an effective force for political reform and defence of human rights. This is why it does not require governmental consent to fund an organisation within the targeted country. In this way the EIDHR is able to focus on sensitive political issues and innovative approaches and to cooperate directly with local civil society organisations which need to preserve independence from public authorities, providing for great flexibility and increased capacity to respond to changing circumstances.
The European Development Fund (EDF) is one of the oldest EU funding instruments. It was created in 1957 by the Treaty of Rome and launched in 1959; the EDF funds cooperation activities in the fields of economic development, social and human development as well as regional cooperation and integration The EDF is established within the framework of an international agreement known as the ‘Cotonou Agreement’ and targetsAfrican, Caribbean and Pacific countries.
EU’s application of other human rights instruments
EU’s human rights obligations do not only stem from the Charter of Fundamental Rights. A number of human rights instruments have been ratified by all EU Member States and the interpretation of these intruments by human rights bodies affects how the rights enshrined in the EU Charter need to be implemented. In addition, the EU – thanks to the Treaty of Lisbon – now has the possibility to ratify international treaties and be bound by human rights instruments of the UN, the Council of Europe and other intergovernmental organisations.
Indirect application of instruments not ratified by the EU
In addition to the Charter, the EU institutions, bodies and agencies are bound to act in compliance with the fundamental rights included among the general principles of Union law (Art. 6(3) TEU). According to the EU Treaty, such fundamental rights derive from the European Convention on Human Rights or other international human rights instruments to which the EU Member States have acceded or in the elaboration of which they have cooperated, as well as from the constitutional traditions common to the Member States. For example, the Court of Justice has been consistently referring to the European Convention on Human Rights, even before the EU decided to accede to this treaty (see above under changes brought by the Treaty of Lisbon). In addition, the Court has relied on the International Covenant on Civil and Political Rights (ICCPR), a UN instrument described in the relevant chapter of the handbook, in order to give more clarity to certain rights. Taking into account these instruments is necessary to ensure that the same obligations that bind EU Member States (through the ratification of those treaties) also bind the EU but also to strengthen a uniform application of human rights standards.
The role of international human rights standards within the EU legal order
When the Commission was amending the Reception Conditions Directive, which aims to improve and harmonise the living conditions of asylum seekers, it has sought to ensure compliance not only with the Charter of Fundamental Rights but also with relevant international standards, in particular the European Convention on Human Rights, the 1951 Geneva Convention on Refugees and the United Nations Convention on the Rights of the Child.
However, the Court of Justice and other EU bodies have been less keen to rely on instruments that enshrine economic and social rights, such as the International Covenant on Economic, Social and Cultural Rights, or the European Social Charter, although these treaties have also been accepted by all the EU Member States. This can perhaps be perceived as a limited EU commitment on social rights. However, as will be explained in the following section of the handbook, the EU has recently launched an EU Pillar of Social Rights, guiding EU action in this area.
EU Ratification of International Conventions
International conventions are treaties or agreements between states and they play a crucial role in defining international relations. Ratification of international agreements means that a party formally consents to be bound by the agreement or treaty. Since the entry into force of the Lisbon treaty the EU can become party to international conventions, meaning that once a treaty is ratified by the EU, it is bound by its provisions and is committed to putting them in effect. Thanks to this possibility to become party to international treaties, the EU has ratified the UN Convention on the Rights of Persons with Disabilities. The Union has moreover agreed to accede to two Council of Europe conventions, namely the European Convention of Human Rights (ECHR) and the Istanbul Convention. To learn more about EU’s accession to the ECHR, you can have a look at the relevant part of the handbook.
EU’s ratification of the UNCRPD and the European Accessibility Act
Following formal ratification in 2010, the United Nation's Convention on the Rights of Persons with Disabilities (UNCRPD) became binding for the European Union and an integral part of EU’s legal order. This was the first time in history that the EU committed itself to be bound by an international treaty. The Convention, which aims to ensure that people with disabilities can enjoy their rights on an equal basis with all other citizens, has also been signed by all 28 EU Member States and ratified by 27 of these, with Ireland being the only EU member state to not ratify the convention despite having signed it in 2007. As part of its commitment to apply the UNCRP , the EU has adopted the European Disability Strategy, aimed at creating a barrier-free Europe for the estimated 80 million people with disabilities in the EU. The Strategy complements and supports action by the Member States which have the main responsibility in disability policies, but also aims to help implement the provisions of the Convention in practice.
The EU has moreover adopted a number of policy and legal instruments to comply with the requirements of the UNCRPD. One of the key milestones in this process is the European Accessibility Act (EAA), which was introduced to improve the functioning of the internal market for accessible products and services by removing the barriers which have been put in place through divergent legislation.
The EAA holds many benefits for disabled and older persons as they will see more accessible products and services on the market at a more competitive prices and they will encounter fewer barriers to access education and the labour market. Products such as computers and operating systems, ATMs, ticketing, check-in machines, smartphones and e-services such as banking, e-books and e-commerce are covered by this act as they have the highest risk of being concerned with diverging accessibility requirements across the EU countries.
For more information on the scope of the EAA and its impact for EU citizens and businesses, you may have a look at the relevant webpage of the European Commission. If you want to learn more about the impact of the UNCRPD at EU and national level, please refer to the related case study.
EU ratifies the Istanbul Convention.
Following its decision to become party to the European Convention on Human Rights, the EU officially signed the Istanbul Convention on the 13th of June 2017. As explained in another chapter, the Istanbul Convention is a Council of Europe instrument, which imposes the duty for countries to implement measures to prevent gender-based and domestic violence, protect victims and prosecute the perpetrators. EU’s ratification of this convention means that the European Union will be much more active in proposing concrete actions to end violence against women and girls in the near future. The EU will have a legal obligation to act, notably in the field of the cooperation between the legal and judicial systems of the different European Union countries - which is essential in order to enforce more effective prosecution of offenders. All European Union countries have already signed this Convention. The fact that the EU signs it as well means that it will also act within its own powers in order to implement it. If the implementation of the Convention is properly done, women across the European Union will enjoy better protection from gender-based and domestic violence.
European Pillar of Social Rights
In response to the deterioration in the social situation across the EU following the financial and economic crisis, and growing divergence between European economies, the European Commission recognised the need to strengthen social cohesion while ensuring long-term economic growth. In this context, the Commission adopted the European Pillar of Social Rights (Social Pillar) in the form of a draft Proclamation by the EU Council of Ministers, the European Parliament and the European Commission. The Social Pillar, which has the ambition to give the EU a ‘social triple-A’ rating while deepening the Economic and Monetary Union (EMU)also became part of the wider reflection on the future of the European Union after the UK referendum to leave the EU.
The Social Pillar is about delivering new and more effective rights for citizens. It seeks to reflect on new trends in work patterns and societies: the impact of new technologies, demographic trends and other factors on our working life and social conditions. The principles proposed in the Social Pillar do not replace existing rights, nor do they confer additional competencies or tasks to the European Union. The Commission’s proposal reaffirms rights that are already present in the EU and international legal acquis, including the European Social Charter and policy plans and recommendations of non-legislative nature.
The set of 20 principles and rights to support fair and well-functioning labour markets and welfare systems is structured around three categories: equal opportunities and access to the labour market, fair working conditions and social protection and inclusion.
The Social Pillar and the rights of older persons
Many of the 20 rights/principles formulated in the proposal are very relevant and important to older people, in particular:
- The right to equal opportunities for women and men, and regardless of age and disability is affirmed and includes access to employment, social protection, education and goods and services available to the public.
- The right to ‘active support in employment’ is important to older jobseekers, who are often left out of active labour market policies that could help them (re)integrate the labour market.
- The right to lifelong learning is fundamental – applying this to persons of all ages is crucial to preserve employability, social inclusion and even health.
- The right to work-life balance takes the most concrete form and has been presented with a legislative proposal featuring five days per year of paid leave (equivalent to sick leave) to care for dependent relatives, as well as investment incentives and the development of indicators for quality and accessibility of long-term care. The proposal is currently debated by the EU Council and the European Parliament in the legislative process.
- The right to long-term care states that everyone has the right to affordable long-term care services of good quality, in particular home-care and community-based services. Supporting AGE’s recommendation, this principle now recognises formally the right to long-term care for the first time at EU level.
- The right to old-age income has been formulated with the aims of ‘living in dignity’ and ‘equal opportunities of women and men to acquire pension rights’, important areas in a context of declining replacement rates and a gender pension gap of almost 40%.
- The right to minimum income refers to the right to benefits ‘at all stages of life’, supporting AGE’s recommendation to extend it beyond the working-age population, and includes ‘effective access to enabling goods and services’, therefore taking account of non-monetary aspects when defining an adequate income to live in dignity.
- The right to health care refers both to preventive and curative health as well as affordability and quality, all important points for enabling not only longer, but healthier lives and equity in health outcomes.
- Inclusion of persons with disabilities has the aim to make them ‘participate in society’, a formulation going much beyond inclusion in the labour market only.
- The right to access essential services of good quality, including water, sanitation, energy, transport, financial services and digital communications, and to get support for access to such services for those in need.
The Pillar is not binding and does not have any legal force with rights that are enforceable in court, but, according to the accompanying Communication, it “should become a reference framework to screen the employment and social performance of participating Member States.” The Pillar is thus intended to “drive reforms at national level and, more specifically, to serve as a compass for renewed convergence within the euro area.”
The second component of the Pillar is a set of concrete legislative proposals, with the first one around Work-Life balance. This initiative, also covers a paid carer’s leave scheme, which is key for AGE since, about one in five older workers are caring at the same time for a family member in need for care and assistance. At the same time, many more have dropped out of employment because they were unable to reconcile work and care. In this context, the introduction of a care leave with remuneration, as proposed by the European Pillar of Social Rights, acknowledges the need to support informal carers and can enhance solidarity between generations inside families.
The Pillar does not only apply to the EU, but also to Member States. . It states that it is primarily relevant for the Eurozone, but invites non-Eurozone member states to join - in effect all Member States have given the mandate to sign the Proclamation.
Although the Social Pillar is a very good starting point to pay more attention to social rights sand drive policy changes within the Union, there are concerns about how far it will be integrated in the process of economic policy coordination, the European Semester. In this way, the EU could link social rights with the poverty and employment goals of the Europe 2020 Strategy and, at the same time, strengthen the social dimension of the European Semester, by using benchmarks on social policies. The initial proposal came with a draft ‘Social Scoreboard’ with a number of social indicators that go beyond purely economic ones. This scoreboard is under discussion between the Commission and the Member States and it is still not clear whether it will become a reality. Moreover, the Pillar needs strong mechanisms to support implementation, such as a structured action plan. The preamble clearly states that only the rights for which ‘implementing measures’ exist are to be put into effect.
An illustration of how such a right could be put into effect is the example of the proposal for a directive on work-life balance. The proposal was presented together with the Pillar to allow workers the right to five-day paid care leave and will enable workers to face emergency situations when a close relative suddenly needs their support and long-term care needs to be organised for them. Situations where carers provide care regularly are partly covered by the right to request flexible work. For both rights to really have an impact on the employment of older workers, it is necessary that there are enough available long-term care facilities to respond to all emerging care needs. This is why the proposal to make European funds available to set up long-term care services and to create indicators and benchmarks in member states on long-term care is essential to help member states cope with Europe's demographic ageing. Investment into quality long-term care is essential to support work-life balance and gender equality.
In sum, the Social Pillar can effectively promote social rights within the EU and across Member States, but to make a difference it needs to be complemented by further measures at national and European level.
AGE’s position on the Social Pillar
To learn more about AGE’s position on the Social Pillar, you are invited to take a look at the links provided here.
The EU in international organisations
Thanks to the Lisbon Treaty the EU is now able to cooperate directly with international organisations, such as the United Nations and to participate in their work (article 220 TFEU). This gives the EU the possibility to sit in meetings where human rights issues are discussed, but also to participate in the elaboration of resolutions and other documents from international organisations and their specialised agencies. For example, the EU has been an active contributor to the UN Open-Ended Working Group on Ageing (OEWG), the UN forum, which discusses ways to strengthen the protection of older people’s rights. The EU also works closely with the UN treaty bodies, special rapporteurs and other human rights mechanisms. The Union moreover has delegations in the UN headquarters in Geneva and New York but also in the seat of the Council of Europe in Strasbourg. Allowing the EU to speak with a single voice in these international organisations, doesn’t eliminate the importance of the Member States’ activities at the global level, but instead just gives another possibility for EU Member States to coordinate action, give more visibility to common positions and better influence various human rights topics.
4.3 EU Bodies
In this part we explore the main human rights responsibilities and activities of EU bodies. To help you understand the distinction between the European Commission, the European Parliament and the European Council have a look at the below image, which was developed in the frame of the EU-funded project Active Senior Citizens for Europe (ASCE).
Learn about EU action relevant for older citizens
The Active Senior Citizens for Europe project aimed at fostering a greater ownership of the EU among older citizens in 8 Member States by giving them the opportunity to learn more about the EU and to interact with EU policy makers in order to achieve a more age-friendly EU. Between 2013-2014 the project developed training material based on the brochure ‘Active Citizens for Europe: A guide to the EU that provides an overview of EU action relevant for older citizens and organised series of meetings at EU and national levels to share this knowledge and promote discussions on EU policies and initiatives between civil society organisations coming from different EU countries. It enabled wider groups of seniors to develop a greater sense of ownership to the EU and get involved in the preparation of the 2014 European Parliament elections.
If you want to have access to the training material developed by the ASCE project, please contact AGE Platform Europe: email@example.com
The European Commission (EC) is one of the main EU bodies and acts as the voice of the EU. It is responsible for proposing legislation, implementing decisions, upholding the EU treaties and managing the day-to-day business of the EU. The Commission operates as a cabinet government, with 28 members of the Commission (informally known as ‘Commissioners’). There is one Commissioner per Member State, who are bound by their oath of office to represent the general interest of the EU as a whole rather than their home state.
EU Commissioners with a fundamental rights portfolio
Frans Timmermans is currently serving as the First Vice-President of the European Commission for the better regulation, inter-institutional relations, the rule of law and the Charter of Fundamental Rights. One of his main responsibilities is to ensure that every Commission proposal and initiative complies with the Charter of Fundamental Rights. He is also expected to lead the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of the Council of Europe. Vice-President Timmermans also guides the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration Home Affairs and Citizenship.
Věra Jourová serves as the European Commissioner for Justice, Consumers and Gender Equality. Her include fighting discrimination, promoting gender equality and pursuing negotiations on the proposed horizontal Anti-Discrimination Directive that would cover age discrimination in access to goods and services. She is also tasked with delivering agreements and legislation around privacy and data protection and modernising and simplifying consumer rules for online and digital purchases. In addition, Commissioner Jourová works on the matters of justice, such as, setting up an independent European Public Prosecutor's office and reinforcing judicial cooperation on criminal matters.
The Commission has adopted a strategy for the effective implementation of the Charter. The aim of this Strategy is to ensure that new legislation and policies, or revisions of existing laws take fundamental rights into consideration. The Strategy tasks the Commission with taking action to improve EU citizens' understanding of fundamental rights protection within the EU through providing them with concrete information on possible remedies and the role of the EU bodies in this field. In addition, based on this Strategy the Commission should monitor the progress of the implementation of the Charter through producing annual reports.
Do you know where to turn for assistance?
The Commission's e-Justice portal gives you all the necessary information about legal remedies in all EU countries.
The Commission’s annual report on fundamental rights monitors progress in the areas where the EU has powers to act, showing how the Charter has been taken into account in actual cases, notably when new EU legislation is proposed. The report is based on the actions of EU institutions and the analysis of letters from the general public, and on questions and petitions from the European Parliament. It also provides an opportunity for an annual exchange of views with the European Parliament and the Council of the EU. It is aimed at helping EU citizens determine where they need to turn to when they believe that their fundamental rights have been violated by an EU institution or by a national authority implementing EU law.
Although the Commission has been publishing annual reports on fundamental rights since 2010, the first time the accompanying document to this annual report included a specific mention to article 25 on the rights of the elderly was in 2014.
The Commission in your country!
The Commission representation offices act as the Commission’s voice and monitor public opinion in their host country. They provide information on the EU through events and the distribution of brochures, leaflets and other materials.
The list of EC offices is available here.
The European Commission has at its disposal various tools to ensure that the requirements of fundamental rights are integrated in its work. Firstly, impact assessments, which are an essential prerequisite to any new EU initiative, in addition to social, economic and environmental concerns take into account fundamental rights. To facilitate this process, the Commission adopted its Operational Guidance on taking account of fundamental rights in Commission Impact Assessments, which includes a "fundamental rights check list", that helps the Commission's services identify which fundamental rights could be affected by a proposal and examine systematically the impact on different policy options. In following steps of the legislative process, the Commission and other EU bodies undertake a final legal analysis of the draft initiative, verifying its compliance with the fundamental rights.
Impact assessments and legal assessments are therefore complementary. First, the Commission wants to understand the full range of impacts that the legislative proposal may entail and later it concludes whether certain rights have been indeed violated and whether such interferences are considered proportionate and legitimate.
The Commission moreover holds Member States accountable, making sure that when they implement EU law, they also respect fundamental rights. To do so the Commission can launch infringement proceedings against Member States when necessary.
Example of infringement procedure
The Commission may take legal action – an infringement procedure – against an EU country that fails to implement EU law. Possible infringements of EU law are identified on the basis of its own investigations or following complaints from citizens, businesses or other stakeholders.
The infringement procedure starts with a letter of formal notice, by which the Commission allows the Member State to present its views regarding the breach observed. If the Member fails to give a satisfactory answer, the Commission may refer the issue to the Court of Justice, which in certain cases, can impose financial penalties.
For example, the Commission decided to send a letter of formal notice to Hungary for its law on foreign-funded NGOs adopted in June 2017. According to this law, NGOs receiving annual foreign funding above a certain amount had to label themselves in all their publications, websites and press material as "organisations supported from abroad" and to provide detailed information regarding their donors and exact amounts of transactions which were then made public. This law indirectly discriminates and disproportionately restricts donations from abroad to civil society organisations. It moreover considerably restricts the work of NGOs, as it could prevent them from raising necessary funds and from carrying out their activities and it was considered as breaching EU law. The Commission noted that the law interfered with the fundamental rights enshrined in the EU Charter, in particular the right to freedom of association and the right to protection of private life and of personal data.
Hungary replied to the Commission's letter of formal notice but the European Commission concluded that its serious concerns had not been addressed and therefore initiated the second stage of the infringement procedure, by issuing a reasoned opinion. If Hungary fails to reply satisfactorily to the reasoned opinion, then the Commission may refer the case to the Court of Justice of the EU. For more information, see the full press release.
The Commission is organized around Directorate-Generals (DG), which are a branch of an administration dedicated to a specific field of expertise. Almost all of the Commission’s services have at least an indirect interest on ageing issues; some like the Directorate General (DG) for Justice, Consumers and Gender Equality have a focus on the rights of older persons. This DG is charged with monitoring the implementation of the Charter of fundamental rights and is responsible for matters of age discrimination. To learn more about other Commission services and their work to promote the rights of older people, have a look at the Active Senior Citizens for Europe publication.
The proposal for a horizontal non – discrimination directive
This is legislative proposal tabled by past President of the European Commission, Jose-Manuel Barroso in 2008, upon pressure by civil society (including AGE), which advocated that the EU should provide to everyone equal protection from discrimination. For the time being EU legislation on age, disability, religion and belief and sexual orientation only covers discrimination in employment and occupational training whereas protection against racism and gender-based discrimination is higher than that available to other grounds.
State of discussions
In 2014 President Juncker has reiterated the Commission’s commitment to work towards the adoption of the so-called ‘horizontal directive’ which is supposed to be on the top of the EU agenda, with hopes that it would be passed within a year. However almost 10 years after the initial proposal, the directive is still stuck in negotiations, due to strong resistance from a few Member States (for example some are reluctant to extent equal rights to gay and lesbian people, others were worried how the directive might affect their social protection systems which treat people differently based on their age and disability, several were afraid about the costs but also the deadline for transposing the directive, whereas some felt that they already offered better protection under national legislation). Several of these issues were raised and at least partially solved during the lengthy negotiations. NGOs have addressed some of the excuses used by Member States to delay the adoption of the directive in a joint statement in 2015.
Lately some Member States are arguing that there is no need for an equal treatment directive because the EU is adopting technical legislation in related areas, such as the accessibility of public websites and the so-called ‘European Accessibility Act’ that would improve protection in particular for people with disabilities. The long awaited Accessibility Act (AA) was launched in December 2015, but it does not adequately cover against discrimination for all groups and in all areas of life.
How is age addressed in the draft directive?
With regard to age discrimination the directive already includes an exception about financial services, for which age can be used as a proxy when it is determining factor for the product or service in question. In addition there is a general clause allowing public and private actors to apply measures which discriminate on the ground of age as long as they can be justified by a legitimate aim. This allows for a broad range of measures to be objectively justified as non-discriminatory. Such measures include situations where differential treatment is needed, as for example, toilet/changing facilities reserved for children and young people or buggy parking areas on public transport which take priority over other passengers. However, lacking an (indicative) list of what constitutes a legitimate aim this clause is open to abuse.
The Latvian EU Presidency has included a new exemption for preferential pricing in respect of specific age groups in the draft directive. The proposed new text by the Latvian Presidency allows any type of preferential charges, fees or rates in respect of persons in a specific age group not to constitute discrimination. This clause creates open-ended opportunities for commercial actors to apply different prices for specific age groups without any justification. In practice, providers are free to apply any rate or fee even if it is detrimental for a specific age group, regardless if they pursue only economic profit and no matter whether they end up excluding a group of persons in the market. In our point of view this basically nullifies the principle of age equality and excludes older people from the scope of the directive.
NGOs have a very important role to play to ensure that the proposed horizontal directive remains in the EU’s agenda. They should lobby their governments to support this proposal in the Council meetings, which take place at least every semester. They should also gather examples of age discrimination to explain the detrimental effect the lack of regulation has on older people’s rights, but also on the market, as older people are not able to access services, such as travel insurance and car rental due to age limits. Last, NGOs should explain the shortcomings of the proposed wording to national decision-makers and call for a strong text that gives equal protection from age discrimination to other grounds.
The European Parliament (EP) is the EU institution which represents the citizens. Its 751 members are elected every 5 years by universal direct suffrage in the 28 Member States. Jointly with the Council in many policy areas, the EP has the power to approve, reject or amend legislation proposed by the European Commission. The Parliament also has the power to approve or reject the nomination of Commissioners, and it has the right to censure the Commission as a whole. In addition it can influence EU spending by adopting or rejecting EU’s budgets. In these capacities, Members of the European Parliament (MEPs) are involved in lawmaking, democratic supervision and financial decisions that impact the daily lives of the people of Europe.
Human rights are among the main priorities of the Parliament. It is involved in election observation missions to support free and fair elections in countries outside the EU. The European Parliament also provides assistance to parliaments of third countries with a view to strengthening their institutional capacity. Moreover, each year the European Parliament awards the Sakharov Prize for Freedom of Thought to individuals or organisations who fight for human rights and fundamental freedoms. Monitoring the situation of human rights in the world, the Parliament has been influential in halting human rights breaches in certain countries.
Re-establishment of the Intergroup on Ageing and Solidarity between Generations
Unlike Committees, intergroups are not official bodies of the European Parliament. Although they not do represent its official view, intergroups bring together MEPs from different political groups to discuss subjects ranging from human rights to economic and social issues.
The European Parliament's Intergroup on Active Ageing, Intergenerational Solidarity and Family policies is based on the previous Intergroup on Ageing and Intergenerational Solidarity and the Family Intergroup, founded in 1982. The new Intergroup brings together MEPs interested in discussing ageing- and family- related issues; it works in two sub-groups, one on active ageing and the other one on family, while the issue of intergenerational solidarity is mainstreamed in all of the Intergroup's activities.
More information about the intergroup and its activities can be found on the AGE website.
The Subcommittee on Human Rights (DROI) has a special focus on the defense of human rights across the world. DROI provides important expert advice and a forum for essential debate where NGOs, human rights defenders, members of the European Commission or the European Council can present their views. One of the Subcommittee’s objectives is to raise awareness of human rights violations and to invite them to speak about and support actions in favour of human rights.
The Committee on Civil Liberties, Justice and Home Affairs (LIBE) is responsible for the protection of fundamental rights and citizens’ freedoms within the territory of the Union. It handles issues of protection of personal data, migration and asylum rules, the integrated management of common borders as well as police and judicial cooperation in criminal matters. However, its scope does not include gender-based discrimination, which is overseen by the Committee on Women's Rights and Gender Equality, and employment discrimination and social rights, which are covered by the Committee on Employment and Social Affairs.
The European Parliament adopts reports on the situation of fundamental rights and human rights on an annual basis. As reflected in their titles, one of these reports has a focus on the EU and the other on external affairs. This annual monitoring exercise is important as it raises awareness of challenges to the equal enjoyment of human rights and prompts the EU institutions, Member States and third countries to take action to prevent human rights violations.
EP resolutions on the rights of older persons
The European Parliament is paying increasing attention to older persons and adopted in December 2016 two important resolutions calling the European Union and its Member States to strengthen their international commitment to the human rights of older people. One resolution called on “the EU and its Member States to be actively involved in the UN Open-Ended Working Group on Ageing and to step up their efforts to protect and promote the rights of older people, including by considering the elaboration of a new legal instrument.” Another noted the high prevalence of age discrimination and the risk of social isolation for older men and women. The Parliament stressed the need to adopt a a human rights-based approach to ageing and encouraged Member States to support older people and to participate in the review of the Madrid International Action Plan on Ageing (MIPAA). For more information about these resolutions, see here.
Council of the European Union
The Council of the European Union is the EU institution representing the Member States and is composed of one representative of each national government at ministerial level. The Council is the EU’s main decision-making body and jointly with the Parliament, it has legislative power towards laws proposed by the European Commission. Each Member State has a fixed number of votes, related to the population of their country.
In addition to ensuring that fundamental rights are taken into account when developing EU legislation and action, the Council is also very active in the promotion of human rights in its relations with non-EU countries and international institutions, as well as in the negotiation of international agreements.
EU Action Plan on Human Rights and Democracy
In 2015 the Council adopted the EU Action Plan on Human Rights and Democracy 2015-2019. This framework outlines EU's work priorities to promote human rights in its external action.
One of the new challenges recognised for the first time in the new Action Plan that binds the EU's external action on human rights, is the promotion of the rights of older persons. Although the Action Plan does not foresee a specific activity or measure, the inclusion of the rights of older persons in this plan is an important development as it recognises for the first time the role of the EU to increase awareness of the human rights and specific needs of older persons paying particular attention to age-based discrimination.
The Council also maintains close cooperation with the EU Agency for Fundamental Rights (FRA), one of EU’s decentralized agencies, which - as will be explained later in the handbook – provides EU institutions with assistance and expertise relating to fundamental rights. This includes adopting FRA’s multi-annual framework, which lays down the thematic areas of the agency’s activities over a period of five years. The Council also adopts conclusions on the Commission’s annual report on the application of the Charter of Fundamental Rights. In 2017, these conclusions focused on several issues, including asylum and migration, rights of the child, racism and xenophobia, and violence against women.
The Working Party of the Council on Fundamental Rights, Citizens' Rights and Free Movement of Persons (FREMP), deals with issues related to the Charter of Fundamental Rights of the European Union, and with negotiations in respect to EU’s accession to the European Convention on Human Rights (ECHR). It has also helped to draw up a series of guidelines on checking fundamental rights compatibility. Every year the Fundamental Rights Agency presents its Annual Report to the FREMP.
The Working Party on Human Rights (COHOM) deals with human rights aspects of the external relations of the EU and supports the Council's decision-making process in this area. The working group also coordinates the positions of EU Member States on thematic and geographic issues in multilateral human rights fora, such as the UN General Assembly (Third Committee), the UN Human Rights Council, but also the UN Open-Ended Working Group on Ageing, which discusses ways to strengthen the protection of the human rights of older persons.
The important role of Presidencies of the Council of the EU
The presidency of the Council rotates among EU Member States every 6 months. During this 6-month period, the presidency is responsible for driving forward the Council's work on EU legislation, ensuring orderly legislative processes and cooperation among Member States. In this capacity EU presidencies play an important role in pushing human rights in the EU agenda. For example, Council Presidencies often hold high level conferences on issues such as violence against women, or non-discrimination. They may also request the FRA to issue opinions or do research on certain topics of fundamental rights. Furthermore, presidencies chair meetings, where key legislative proposals, such as the draft horizontal non-discrimination directive, are discussed. This is why it is crucial for NGOs to build close links with the Member State that holds the EU Presidency, to monitor their activities and participate in their work.
The Council also draws up and adopts thematic guidelines, which support EU external action and provide EU officials with practical information on how to promote specific rights in their relations with third countries. These guidelines are not legally binding, but because they have been adopted at ministerial level, they showcase a strong commitment by EU leaders and recognize certain topics as priorities for the Union. Although to date the EU has not adopted guidelines about the rights of older persons, they have issued guidelines about the rights of the child, lesbian, gay, bisexual, transgender and intersex (LGBTI) and about combating violence against women and girls.
Finally, just like the European Parliament, the Council adopts once a year a report on human rights and democracy, which details all the EU's work and achievements in the advancement of human rights through its external action.
European External Action Service
The European External Action Service (EEAS) is the EU’s diplomatic service. Its role is to make sure the voice of the European Union and its people are heard in the world. EEAS works in cooperation with diplomatic services of the EU Member States. It comprises officials and agents from the EU, as well as personnel seconded from national diplomatic services.
The EEAS is headed by the EU’s High Representative for Foreign Affairs and Security Policy, which is currently Federica Mogherini. This institutional position was strengthened thanks to the Lisbon Treaty. The High Representative, who is appointed by the Council, chairs the Council of the EU foreign affairs and is also a Vice-President of the European Commission. The combination of these roles enhances the consistency and coherence of EU activities in the world and ensures they do not conflict or overlap.
The High Representative, who is supported by the EEAS, carries out EU’s foreign policy. In this capacity both the High Representative and the EEAS promote human rights in political dialogues with third countries, in EU’s development policy and humanitarian aid, and through its participation in multilateral forums, such as the United Nations. Internationally the EU has been involved in peace talks around the world to facilitate solutions in conflicts worldwide such as crisis response, humanitarian aid, advocating for climate change and in contributing to global security.
EEAS is currently working on the development of an anti-discrimination toolkit, which is aimed at helping EU officials and delegations around the world take into account aspects of discrimination. AGE was consulted about this toolkit that will be used in EU’s external collaboration.
EU Special Representative for Human Rights
The Union’s external action is supported by Special Representatives, who promote the EU's policies and interests in other regions and play an active role in efforts to consolidate peace, stability and the rule of law. Most of EU’s Special Representatives cover certain troubled geographical areas, but after the adoption of the EU's Strategic Framework and Action Plan on Human Rights and Democracy, the Union decide to appoint in 2012 the first Special Representative for Human Rights.
Stavros Lambrinidis, who holds this position is tasked with increasing the effectiveness and visibility of EU’s human rights policies and is responsible for contributing to the implementation of the EU’s action plan on human rights and democracy.
EU representative for human rights speaks at conference on rights of older persons
On 11th and 12th April 2016 the Ministry of Foreign Affairs of Slovenia held a two-day international conference titled Ageing: Rights for Empowerment, gathering representatives of States, civil society, EU and UN stakeholders. The conference on the rights of older people also marked the beginning of EU campaign #EU4HUMANRIGHTS. The Special Representative for Human Rights Stavros Lambrinidis spoke via a video message to address the participants of the conference. In this message he highlighted the importance of wider human rights advocacy from the EU and its member states. He also pointed out Slovenia’s leading role with respect to rights for older persons.
European Union Agency for Fundamental Rights
The Fundamental Rights Agency (FRA) is the Union’s independent centre of expertise on fundamental rights. Through its work the FRA aims to make fundamental rights a reality for everyone living in the EU. Its main tasks include information gathering and analysis, provision of advice to EU institutions and Member States and awareness-raising around fundamental rights. The FRA has the right to formulate opinions to the EU institutions and to Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council of the European Union, the European Commission or an EU Member State. It does not have the mandate to examine individual complaints nor does it have regulatory decision-making powers.
How the FRA works
The Fundamental Rights Agency undertakes surveys and projects and publishes reports around several topics of fundamental rights. This research is very important as it gives an idea of the state of protection of fundamental rights across the EU. The approach of their studies is socio-legal. This means that they look both at how rights are enshrined in law and also at how they are enjoyed in practice.
For example, the agency did research on the experience of multiple discrimination in healthcare. It looked at how multiple discrimination is legally addressed and examined relevant case law. It also explored patients’ and professionals’ views and experiences on how people of different gender, age, disability and ethnic origin experience discrimination accessing the health system. To do so they examined statistical evidence of inequalities in health care, they did desk-based bibliographical research, but also carried out interviews with service users and health care professionals. Among the groups that experienced unequal or unfair treatment in relation to access to and quality of healthcare, FRA identified older people with an ethnic or minority background as facing particular barriers. Based on their findings, the FRA gave evidence-based recommendations on how to best tackle multiple discrimination in accessing healthcare in the European Union. The research also contributed to discussions on the adoption of the proposed EU ‘horizontal directive’, as well as on how multiple discrimination is addressed in policy making and through complaints procedures.
To learn more about this project, see here.
The FRA also disseminates material and publishes information about the use of the Charter of Fundamental Rights. In addition, they develop training tools, such as the Handbook on European non-discrimination law, which targets legal practitioners. The Agency moreover collects promising practices that allow Member States learn from each other. The FRA has also established the Fundamental Rights Platform as a structured forum with civil society and human rights organisations of which AGE is a member.
Every year the FRA publishes an annual report on fundamental rights, which is a very important milestone for fundamental rights monitoring. Through this annual exercise, the FRA reviews major developments in the field, identifying both achievements and remaining areas of concern. This report is very interesting because it looks both at efforts made by the EU institutions and by EU Member States. For example, in 2017 the FRA noted with concern that EU Member States once again did not reach agreement on the proposed horizontal Equal Treatment Directive, although several continued to extend protection against discrimination to different grounds and areas of life in domestic law and policy.
Older persons in FRA’s work
AGE Platform Europe has stressed on several occasions that although the FRA has a mandate to work on age discrimination and the rights of older persons, it has paid only limited attention to these issues in their work. Nevertheless, the Agency – to the extent possible- tries to include older persons in their studies. For example, a recent project on the rights of persons with disabilities to independent living paid particular attention to the situation of older persons, consulted AGE and looked into specific living arrangements for older people in need of care. However, this approach only gives a limited view of the experiences of older age. This is why the Agency has included in their future work plan a project focusing specifically on the rights of older persons. Importantly, even before the FRA secures adequate funding for this project, their 2018 annual report will have a special focus on human rights in older age. This initiative is very important as it will shed a light on the types of human rights breaches faced by older persons and the adequacy of EU and national efforts to tackle them. It will also contribute to the UN discussions around the added value of a new UN convention.
The FRA is not the only agency that helps the EU institutions implement policies and take decisions. Several other decentralized agencies are spread around the EU. Among these, some work on issues related to fundamental rights. For instance, the European Institute for Gender Equality (EIGE) monitors, improves knowledge and raises visibility of equality between men and women. In addition the European Data Protection Supervisor provides independent advice about data protection and personal privacy. To better understand the role and functioning of EU agencies you can watch the following video.
The Court of Justice of the European Union
The role of the Court of Justice of the European Union (CJEU) is to ensure that EU law is interpreted and applied in the same way in every EU Member State and that countries and institutions abide by EU law. It settles legal disputes between national governments and EU institutions and can also, in certain circumstances, be used by individuals, companies or organisations to take action against a body of the EU, if they feel that it has somehow infringed their rights. National courts can also refer a case to the Court of Justice seeking its opinion on the interpretation or validity of European law. The reference for a preliminary ruling therefore offers a means to guarantee legal certainty and uniform application of EU law.
Since the Lisbon Treaty came into force, the CJEU now consistently refers to the Charter of Fundamental Rights to decide whether EU initiatives comply with fundamental rights. For example, in March 2011 the CJEU delivered a landmark ruling (known as Test-Achats case) concerning sex discrimination in insurance premiums. The EU’s highest Court ruled that different insurance premiums for women and men are not compatible with the EU Charter of Fundamental Rights. The possibility given under an EU directive to Member States to derogate from the principle of equality between women and men in their national legislation (‘opt out clause’) was thus considered illegal. Thanks to this decision no further differentiations in insurance premiums and benefits for women and men are permitted in the EU. This case marks a very positive positive development for older women as it prevents them from being financially penalised in access to complementary health care insurance, protects them from being discriminated against by employers for reasons of higher employment insurance costs and can also provide better conditions in private pension and savings schemes.
The Court has also dealt with several cases that have to do with discrimination on the basis of age and in a very important ruling (Mangold case), it affirmed that the principle of non-discrimination on the ground of age is a general principle of EU law. This case raised the profile of the prohibition of age discrimination in the EU’s legal order. Other cases have dealt with the conditions that justify age limits and compulsory retirement ages. The Court has moreover stated that depriving a worker of a severance allowance on the ground that he may draw old age pension is age discrimination.
These examples illustrate that the CJEU is an effective guardian of fundamental rights across the EU. To learn more about CJEU cases that deal with fundamental rights, you can have a look at the database of the Fundamental Rights Agency.
The European Ombudsman
The European Ombudsman is tasked with the investigation of complaints about maladministration in the institutions and bodies of the EU. Citizens, businesses, associations or other individuals or bodies who are residing or have a registered office in the Union may make a complaint to the ombudsman if they believe they have been treated unfairly by one of the EU institutions.
The right to good administration is a citizen’s right enshrined in article 41 of the Charter of Fundamental Rights. Article 42 also proclaims the fundamental right of access to documents. But in addition to these rights, complaints brought to the Ombudsman may also concern other fundamental rights. For example, the Ombudsman has dealt with unjustified dismissal, fair, and just working conditions, the prohibition of discrimination, the right to health and the right to the protection of personal data. The Ombudsman has also made recommendations to Frontex, the EU borders agency, on how to ensure respect for the fundamental rights of migrants. Another inquiry brought before the Ombudsman concerned the compliance with fundamental rights in the context of the distribution of EU funds. In this case the Ombudsman insisted that the Commission, although it may not be primarily responsible for any human rights violations, should do all it possibly can to ensure that the EU does not finance activities that violate human rights. The Ombudsman’s recommendations are not binding but the vast majority are accepted by EU bodies who take action to remedy the situation.
Complaints to the European Ombudsman
Did you know that it’s not necessary in order to file a complaint to the European Ombudsman to be directly affected by the alleged act of maladministration? Many complaints come from civil society groups and NGOs. For example an NGO may claim that a funding programme does not comply with human rights obligations, or that the Commission has not dealt with an infringement case appropriately, or that an expert group advising EU bodies does not include representatives of civil society and is therefore unbalanced.
4.4 How can I get involved?
The treaty of Lisbon, under Article 11, recognises the rights of all citizens and civil society to be involved in the decision making process of the EU. This right can be fulfilled in a number of different ways, which include engaging with EU bodies, taking action at national level but also contributing to AGE’s work.
Take action for the European Elections
EU citizens can elect their representatives to the European Parliament every 5 years. The next European Parliament elections will be held in 2019. Given the enhanced role and influence of the European Parliament introduced by the Lisbon Treaty, it is all the more important for older citizens to get actively involved in these elections to ensure that the next Parliament will be aware of their needs, and will propose EU action to respond to their concerns.
Ahead of the next elections, the European political groups prepare manifestos which outline the views of their group members on the major challenges facing the EU and what action should be taken by the EU to address them. National political parties also prepare manifestos for the European Parliament elections which present the programmes of their country’s candidate Members of the European Parliament (MEPs).
Older people’s organisations can get involved in the preparation of these manifestos to try to ensure that their elected MEPs will respond to their needs and expectations and will propose EU action to promote older people’s rights. Citizens’ groups can contact their candidates either separately or through the organisation of workshops where candidates from different parties can present their programme and answer questions raised by older citizens.
MEPs are elected by their citizens to voice their concerns at the European level. By meeting with their MEPs older people are able to share their concerns and suggest ways in which the EU can effectively protect and promote their rights.
Follow AGE work for the preparation of the European Parliament elections
AGE will be active in the preparation of the next European elections, highlighting EU dossiers that are relevant for older people, raising awareness of their rights and monitoring the programmatic declarations of political parties and individual candidates. Follow AGE work to find out how you can lobby your national MEPs in advance of the next EP elections. You can also help us draft our Manifesto for the European elections, by letting us know the issues of concern for older people in your country.
Reply to EU consultations
The European Commission regularly launches public consultations to gather the views and opinions of citizens and other stakeholders, like businesses or civil society organisations on various EU questions. Replying to EU consultations is a very good way to influence the European agenda. For example, a consultation may take place before the revision of an EU law or policy in order to understand some of the practical issues in the implementation of initiatives taken at EU-level. Consultations also help EU institutions prioritize and decide what their future action in a certain area should focus on. They may also be an opportunity to evaluate the impact of EU law at national level.
Consultations often take the form of online questionnaires. Even if you do not have an opinion about all aspects of a consultation, you can still reply to the most relevant questions from your own experience. AGE publishes the most relevant consultations for older people’s rights on our website as well as in our monthly newsletter, CoverAGE. In addition, you can find the full list of open EU consultations, following this link.
AGE response to consultation about the Social Pillar
In December 2016 AGE replied to the consultation on the European Pillar of Social Rights. In our response we highlighted the key role social rights play in empowering older persons as equal citizens.
Submit a petition to the European Parliament
Any EU citizen or resident in a Member State, alone or with others, has the right to submit a petition to the European Parliament. Any company, organisation or association with its headquarters in the European Union may also exercise this right of petition, which is guaranteed by the EU Treaties.
A petition may take the form of a complaint or a request for action on issues of private or public interest that relate to EU’s activities. For example, a citizen can complain about the infringement of EU law or even draw the attention of the European Parliament of a specific matter. The right to petition ensures that EU institutions respond to the concern of EU citizens. The Petitions Committee of the European Parliament responds to every petition and may even offer a non-judicial remedy to issues raised in the complaints.
To submit a petition you need to fill in an online form, which is available here.
The European Citizens Initiative
One of the innovations contained in the Lisbon Treaty in order to strengthen participatory democracy and citizens’ involvement in the EU decision-making process is the European Citizenship Initiative (ECI). This new instrument allows at least one million citizens from one quarter of EU Member States to invite the European Commission to bring forward legislative proposals in areas where the Commission has the power to do so, including for instance the environment, agriculture, consumer protection, transport or public health. The ECI is a major step for participatory democracy as it enables European citizens and civil society organisations to directly influence the political agenda of the EU.
Once the signatures have been collected and verified by the Member States, the citizens' initiative has to be submitted to the Commission. From that moment, the Commission will have three months to examine the request made by the citizens. Meanwhile, the organisers will be received at the Commission and they will also have the opportunity to present their initiative at a public hearing organised at the European Parliament. The Commission will then set out in a public document its conclusions on the initiative and the action, if any, it intends to take and will explain its reasoning.
A website is dedicated to the ECI including step-by-step instructions on the procedure, the policy areas on which an ECI can be submitted and other practical information.
Participate in EU projects
The EU provides various funding opportunities in a wide variety of areas. AGE Platform Europe is actively involved in more than a dozen EU-funded projects. Thanks to EU grants we have developed a European Charter on the rights and responsibilities of the rights of older persons in need of care and assistance, which is a key reference document for reforms and awareness on older persons rights across EU Member States. We have also established a large-scale collaboration between national, local and regional authorities, researchers and industry to create an age-friendly European Union and launched the EU Covenant on Demographic Change. We have also been involved in projects where we highlight the ethical issues and other concerns in the development of technologies targeting the older population. Other projects promote innovative solutions that help support the rights of older persons in long-term and palliative care, prevent disease or improve the accessibility of living environments. Calls for project proposals are also targeting national organisations but you need to collaborate with organisations, institutions, universities or business from other countries to be eligible for funding. EU projects are a great way to include the views and experiences of older people and to implement change at grassroots level. If you want to find out about funding opportunities check AGE’s website. Alternatively, AGE is constantly looking for older persons who may be interested in being engaged in our ongoing projects. If you are interested to learn more about such opportunities, you can contact AGE research project manager, Ilenia Gheno at firstname.lastname@example.org.
Mobility Scouts is an EU funded project, which aims to empower older persons to contribute to the creation of age-friendly environments and services as co-producers involved in decision-making processes. As “experts” in their own lives, older people know best how services and public spaces should be designed and organised to meet their needs. They want their voices to be heard, their experiences to be acknowledged and their skills to be actively used and valued. The core idea of Mobility Scouts it to train older women and men to initiate co-production processes and cooperate together with local authorities and service providers in the development of age-friendly environments and services in their own community, village or city. Both AGE Platform Europe and out Dutch member organisation Oudere Vrouwennetwerk (OVL-NL) are partners in this project.
Join the Fundamental Rights Platform
The Fundamental Rights Agency works closely with civil society organisations. To facilitate cooperation and exchange of information and knowledge it has created a list of active NGOs and other key players in the promotion of human rights, including universities, trade unions, employers’ organisations, religious organisations and other civil society actors. The Fundamental Rights Platform (FRP) is not an organisation with official membership, but rather a network allowing more effective collaboration. Joining the Fundamental Rights Platform organisations have preferential access to information about FRA activities, and events but also other important initiatives about human rights in the EU. They can influence FRA’s work programme, contribute the agency’s projects and capacity building. They can also elect representatives for the Advisory Panel, which advises the FRA director and assists in the coordination of the FRP. AGE is already a member of the Fundamental Rights Platform. If you want to join as well, you can find information and register online.
Contribute to AGE’s work
AGE work is informed by the views and experiences of its members. There are many ways in which you can contribute to AGE’s work at EU level. Your involvement starts with following the situation of older people in your country and discussing the political, legal and economic context and how it impacts their human rights. Raising your concerns through concrete examples helps AGE communicate effectively to the EU institutions the issues that concern older people the most and provide evidence of problematic areas, but also examples of good practices. For example, AGE members’ mobilization to gather examples of age limits in access to insurance and banking products helped us make the case for a new directive covering age discrimination in access to goods and services. Thanks to information about policies and practices for older persons in need of care in various EU countries, we were able to increase attention to the differential treatment of individuals who acquire disabilities in older age. Our members’ input have also been instrumental in assessing the actual impact of law, such as the Employment Framework Directive but also soft initiatives, like the Madrid International Plan of Action on Ageing (MIPAA). Their experience is essential also for ongoing policy processes, such as the proposal for a carers’ leave directive. Bearing in mind the real changes faced by older people who are caregivers, we are able to call for solutions that respond to their needs.
To contribute to our work, you are welcome to reply to consultations and requests sent by AGE staff on specific issues. These are communicated through targeted emails but also in our online newsletter and on our website. In addition, you may want to join one of AGE taskforces. Taskforces are working groups which provide policy expertise as well as exchange of experiences and information in order to inform AGE’s work i.e. to make proposals and policy recommendations. Task Forces are meant tobetter reflect the situation and concerns of older people across the EU.
You can become a member of an AGE taskforce at any time but you need to be nominated by one of AGE member associations. To find out about AGE’s Taskforces click here.
What have we learned?
THE EU AND HUMAN RIGHTS
- The European Union (EU) is a political and economic union built up of 28 member states.
- The EU aims to ensure the free movement of people, goods, service and capital within its internal market, but also to ensure the human rights of people who live in the EU.
- The EU is bound to respect and promote human rights both through its laws and policies but also in its relations with non-EU countries.
- The Charter of Fundamental Rights is a document that brings together the rights protected in the EU. The Charter acts as fence for EU bodies and Member States, which must not breach these rights when they take action in the scope of EU law.
- The Charter of Fundamental Rights includes an article on the rights of the elderly.
- The EU can adopt legislation as a means to protect human rights and fight discrimination.
- Another way in which the EU promotes human rights is by providing financial support and capacity building for civil society organisations in the EU and in other countries of the world.
- The European Commission acts as the main voice of the EU and holds the responsibility responsible for proposing legislation, implementing decisions, upholding the EU treaties and managing the day-to-day business of the EU.
- The European Parliament is the EU institution, which represents the citizens of the European Union. The 751 Members of the European Parliament (MEPs) are elected every five years by EU citizens.
- The Council of the European Union is composed of one representative of each national government at ministerial level and is the EU institution representing the Member States. The Council is the EU’s main decision-making body.
- The EU has a kind of diplomatic service, known as ‘External Action Service’, which represents the interests of the Union in dialogues and agreements with third countries.
- The EU Agency for Fundamental Rights (FRA) acts as the EU’s the Union’s independent centre of expertise on fundamental rights, undertakes research and can consult EU institutions on related matters.
- The Court of Justice of the EU ensures the uniform application of EU legislation and makes sure that Member States comply with EU law.
- The European Ombudsman deals with complaints about the violation of human rights and maladministration by EU bodies.
HOW TO GET INVOLVED
- Every EU citizen and civil society organisation has the right to be involved in the decision making process of the EU.
- This can be done through voting in the European elections, lobbying your MEPs and making sure that they take into account therights of older people in their programmatic declarations.
- You can also reply to consultations, sharing your opinions and views on a number of EU-related topics.
- In case you feel that your rights are violated or are not taken into account by the EU, you can submit a petition to the EU or filea complaint to the European Ombudsman.
- If you join European Citizens Initiative, you have the opportunity to directly influence EU’s agenda by proposing a new piece oflegislation.
- The EU also offers funding opportunities for activities at national, EU and international level.
- The Fundamental Rights Platform is a network of organisations that wish to be actively involved in the activities of theFundamental Rights Agency.
- You can also contribute to AGE’s work by monitoring what is happening in your country and raising your concerns in AGE’s Taskforcesand other communication and consultation mechanisms.