ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency

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FUNDAMENTAL

RIGHTS REPORT –

2021

The year 2020 brought both progress and setbacks

Fundamental Rights Report 2021

reviews major

developments in the field, identifying both

achievements and remaining areas of concern. This

publication presents FRA’s opinions on the main

developments in the thematic areas covered, and

a synopsis of the evidence supporting these opinions.

In so doing, it provides a compact but informative

overview of the main fundamental rights challenges

confronting the EU and its Member States.

[FOCUS]

The Coronavirus pandemic

and fundamental rights:

a year in review

Racism, xenophobia and related

intolerance

FRA OPINIONS

in terms of fundamental rights protection. FRA’s

Information society, privacy

and data protection

Roma equality and inclusion

Developments

in the implementation

of the Convention on the Rights

of Persons with Disabilities

Rights of the Child

Implementation and use

of the Charter at national level

Asylum, visas, migration, borders

and integration

Access to justice

Equality and non‑discrimination

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Manuscript completed in April 2021.

Neither the European Union Agency for Fundamental Rights nor any person acting on behalf of the European

Union Agency for Fundamental Rights is responsible for the use that might be made of the following information.

Luxembourg: Publications Office of the European Union, 2021

PDF

ISBN 978-92-9461-292-2

ISBN 978-92-9461-258-8

ISSN 2467-2599

ISSN 2467-2823

doi:10.2811/523373

doi:10.2811/569090

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ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

[FOCUS]

THE CORONAVIRUS PANDEMIC AND

FUNDAMENTAL RIGHTS: A YEAR IN REVIEW

As the COVID-19 pandemic spread across the globe, authorities across the European Union

adopted myriad restrictive measures to protect people’s lives and health. These interfered

with a wide range of fundamental rights, such as to movement and assembly; to private

and family life, including personal data protection; and to education, work and social

security. The pandemic and the reactions it triggered exacerbated existing challenges

and inequalities in all areas of life, especially affecting vulnerable groups. It also sparked

an increase in racist incidents. A human rights-based approach to tackling the pandemic

requires balanced measures that are based on law, necessary, temporary and proportional.

It also requires addressing the pandemic’s socio-economic impact, protecting the

vulnerable and fighting racism.

The pandemic and the measures adopted to contain it

have seriously affected all aspects of our personal and

collective life, including the functioning of our democratic

institutions, as the evidence shows. The pandemic has

revealed new challenges to upholding the fundamental

values of the functioning of our states and the European

Union. It has implications for our fundamental rights.

Restrictions have an impact on our personal and social

interaction, and on the protection of our sensitive

personal data. At the same time, the social and economic

consequences of the pandemic will be lasting and will

significantly exacerbate already existing inequalities.

FRA OPINION

1.1

EU Member States should assess and balance the

requirements of different fundamental and hu-

man rights when adopting restrictive measures in

an emergency, such as the one presented by the

COVID-19 pandemic. To achieve this balance, they

should take into consideration international human

and fundamental rights standards, including relevant

case law and guidance by international human rights

bodies. They should also involve national statutory

human rights bodies when designing, implementing,

and monitoring restrictive measures. These mea-

sures should be necessary, temporary and strictly

proportionate.

EU Member States should ensure that restrictive

measures are based on law and that courts, par-

liaments, statutory human rights bodies and other

stakeholders, including civil society, can scrutinise

them.

EU institutions should continue to monitor emer-

gency measures in the light of the EU’s founding

values as laid down in Article 2 of the TEU, including

fundamental rights, rule of law and democracy. Po-

licy documents, such as the new annual European

Rule of Law Mechanism report, should reflect the

outcome of monitoring the emergency measures,

where relevant.

It is essential, as many have stressed at international,

EU and national levels, that emergency and restrictive

measures fully respect international human rights and

rule of law standards, as international instruments enshrine them and relevant case law shapes

them. A large number of documents from authoritative sources have identified these standards,

which provide guidance to duty‑bearers on how to better protect the rights of people to life

and health without negating all their other rights.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

1.2

EU Member States should improve the resilience

of their healthcare, social welfare and social as-

sistance systems to ensure that they provide

equitable services to everyone even during a cri-

sis. To achieve this in a coordinated way across

the EU, the European Commission’s proposal for

a strong European Health Union should be adopted

without delay. The proposal aims to seriously

improve the protection of health, but also social

and economic life across the EU.

As the European Parliament underlined, “even in a state of public

emergency, the fundamental principles of the rule of law, democracy

and respect for fundamental rights must prevail”. In this respect, the EU

Charter of Fundamental Rights is of major importance when it comes to

EU actions, and actions of Member States that fall within the scope of

EU law. FRA’s bulletins throughout 2020 highlighted with evidence the

implications on fundamental rights in the EU context.

At national level, restrictive measures have been under scrutiny by courts,

parliaments, human rights bodies, civil society and other stakeholders.

Although they recognised the need for emergency measures to contain the

pandemic, they objected to those that were not based on law, lasted for

a long time and were disproportionate. They also stressed the importance

of fighting COVID‑19‑related discrimination, hate speech and racism.

Modern science responded to this challenge in record time, making

vaccines available as early as the end of 2020. Still, the pandemic exposed

gaps and limitations in the capacity and preparedness of our healthcare,

education, employment and social protection systems to deal with such

a crisis, and deliver on the obligation to fulfil the rights of all to health,

education, work and social security and assistance. It also revealed

gaps in our capacity to protect the rights of those more vulnerable. The

pandemic is a litmus test of our readiness to respect the promise of the

global Agenda 2030 to “leave no one behind” in achieving a socially just

transition to sustainable development.

Despite the shortcomings, however, the EU and its Member States made

considerable efforts to support their healthcare, education and social

protection systems, and to assist individuals and businesses against the

economic downturn and the risk of unemployment.

FRA OPINION

1.3

EU Member States should enhance their efforts to

ensure the continuity of education for all children

under any circumstances, particularly in times of

crisis such as the one presented by the COVID-19

pandemic. In this respect, they should priori-

tise establishing a digital infrastructure across

all levels of education, and ensure appropriate

training to familiarise teachers with working in

a digital environment. In this regard attention

should be given to the Digital Education Action

Plan (2021–2027), which suggests this, and calls

for stronger cooperation at EU level to make edu-

cation and training systems fit for the digital age.

EU Member States should also ensure that this

digital infrastructure is inclusive. This means ca-

tering to the needs of those who are socially

excluded and vulnerable, such as children with

disabilities, children of Roma and Travellers, and

children of migrants and refugees.

FRA OPINION

1.4

The EU and its Member States should continue

to fight COVID-19-related discrimination, hate

speech and racism against ethnic minority groups,

migrants and refugees, or people with a migrant

background. This includes strengthening mea-

sures against disinformation that spreads hate

speech, and discriminatory and racist perceptions,

particularly online.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

The EU’s added value was once again of critical importance. It put in

place various instruments to help Member States finance their actions.

Looking forward, the EU institutions reached agreement on a recovery

package of € 1.8 trillion. It combines the EU budget for 2021–2027 and

NextGenerationEU, a temporary recovery instrument allowing the

European Commission to raise funds on the capital market to address

the immediate economic and social damage caused by the pandemic.

These EU financial measures, together with policy instruments promoting

human and fundamental rights, such as the European Pillar of Social

Rights, form a comprehensive framework to support national efforts.

FRA OPINION

1.5

EU Member States should focus on the needs of

vulnerable groups that are most at risk of infec-

tion and/or severe disease. These groups include

older people, people in care homes, persons with

pre-existing health conditions, and those living in

limited and overcrowded spaces or poor living and

housing conditions. This last group includes many

Roma and Travellers, and people in reception or

detention facilities for migrants and refugees,

prisons, and shelters for homeless.

This also requires prioritising these groups for

vaccination and ensuring they enjoy equitable

access to health and social services as necessary.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

IMPLEMENTATION AND USE

OF THE CHARTER AT NATIONAL LEVEL

The year 2020 marked a special milestone for the

EU Charter of Fundamental Rights. On 7 December,

it was exactly 20 years since the EU proclaimed the

Charter in Nice. The European Commission used that

date to launch its new ‘Strategy to strengthen the

application of the Charter of Fundamental Rights in

the EU’. The strategy puts increased focus on the

Charter’s application in the Member States and on the

role of national actors in making the Charter effective

in people’s lives. It provides a blueprint for further collective efforts in the years to come.

The Commission also encouraged a more concerted implementation of the Charter at EU

level. Meanwhile, its use by national courts, parliaments, governments and other actors

continued to show mixed results. National courts paid growing attention to the Charter, but

government measures to promote its application remained sparse. Although the COVID-19

crisis strained fundamental rights protection, it also spurred more attention to the EU’s bill

of rights.

The Charter is of fundamental relevance for the EU, national and local levels of government,

binding them whenever they are acting within the scope of EU law. However, at national level,

engagement with the Charter remains rather limited, the evidence shows. This indicates a need

for further support by the EU and its Member States, as well as reinforced cooperation. The

following three opinions address the EU, national and local levels of government, respectively.

EU level

FRA OPINION

2.1

The EU institutions, when discussing the ap-

plication of the Charter as suggested in the

European Commission’s Charter strategy,

should make sure that evidence from re-

levant national actors is sufficiently taken

into account. In addition to FRA, attention

should also be dedicated to other EU agen-

cies that have the potential to contribute to

better implementation and promotion of the

rights in the Charter. Finally, the Committee

of the Regions could engage in an annual

exchange of promising practices and challen-

ges in the application and promotion of the

Charter provisions at local level. This could

provide additional evidence to feed into the

‘inter-institutional discussion’ at EU level, to

which the Charter strategy refers.

Whereas the new European Commission strategy to strengthen the application

of the Charter dedicates increased political attention to the national level, it also

announces additional EU guidance, stimulus and support, including through new

EU programmes. For instance, it announces that the European Commission will

strengthen its partnership with EU Member States in various contexts to better

help them implement the Charter.

In addition, the European Commission invites both the Council and the Parliament,

respectively, to enter into an ‘inter‑institutional discussion’ with the Commission.

Agencies are also of relevance in this regard. Whereas FRA and its work are

frequently referred to, the strategy does not in more general terms address

the role of EU agencies. EU agencies all can contribute to the application of

the Charter, although awareness of the Charter and obligations under it vary

between agencies, as does their readiness to increase their investment in raising

awareness, FRA has reported.

The Charter is important not only for the key EU institutions but for all EU actors,

such as, for instance, the Committee of the Regions. Especially its Commission

for Citizenship, Governance, Institutional and External Affairs (CIVEX) has an

obvious role to play in highlighting local practices and fostering an exchange amongst regional

and local actors on how best to apply and promote the Charter.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

National level

The data collected for this and earlier fundamental rights reports point to a lack

of national policies to promote the application of the Charter. Consequently, the

2020 Charter strategy puts a major focus on the role of EU Member States in

implementing the Charter. Given the number of concrete proposals for Member

States to take action, the strategy forms a blueprint for the years to come.

Application of the Charter could be strengthened by setting up Charter focal

points in the national administrations, adapting procedures concerning impact

assessments and legal scrutiny, ensuring that committees with sufficient

Charter expertise monitor the management of EU funds or, finally, establishing

and /or strengthening NHRIs.

Other measures that the strategy lays down require refreshed national policy

measures, for example in the area of training, awareness raising or promoting

a supportive and safe environment for CSOs and rights defenders. These

proposals will require a shift in the fundamental rights culture at national

level, which so far appears rather focused on national constitutional law and

the ECHR, thereby underusing the added value of the Charter.

FRA OPINION

2.2

EU Member States should consider establishing

dedicated Charter focal points, as invited to do

under the Charter strategy. This would allow

governments to coordinate national actions

with actions at EU, regional and local levels

to implement the new Charter strategy more

effectively. Ideally, the implementation of the

strategy would follow a structured process

based on concrete targets, milestones and

timelines. This could take the form of a dedi-

cated Charter action plan, or making specific

references to the Charter in existing action

plans or strategies. To allow for mutual learning

and synergetic exchange, adopting and im-

plementing these planning documents should

go hand in hand with coordination at EU level

– for instance, through targeted discussions

in FREMP.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Local level

FRA OPINION

2.3

EU Member States should promote the

new Charter strategy among local and re-

gional authorities, and explore how these

authorities could more regularly refer to

and promote fundamental rights in general

and the Charter’s added value in particular.

Local and regional authorities should en-

sure that relevant local and regional instru-

ments, procedures and policies refer to the

Charter. Existing Charter practices should be

communicated to the new national Char-

ter focal points to ensure that these can

share such practices and experiences with

other Member States – for instance, through

the European e-Justice Portal. Cities could

consider becoming human rights cities and

thereby stepping up fundamental rights

considerations in their work, programmes,

and activities.

Local administrations are not very aware of the Charter, according to

FRA’s

analysis of the data from the consultations

that the European Commission

carried out while preparing the strategy. At the same time, the Charter “applies to

regional or local bodies, and to public organisations, when they are implementing

Union law” (see Explanations, Article 51, Official Journal of the European Union

C 303/17 ‑ 14.12.2007).

The strategy uses the term ‘local’ 17 times. It not only calls for the sharing

of best Charter practices at local level and promoting a supportive and safe

environment for CSOs and rights defenders at local level, but also demands that

Member States provide sufficient guidance at local level so that local authorities

can comply with their Charter duties. The strategy also points to the potential

of local actors to raise awareness about people’s rights and about what people

can do if their rights are breached.

FRA is currently working on a concept for human rights cities in the EU. That

framework of commitment will integrate various Charter‑related components

and could help increase Charter engagement at local level.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

EQUALITY AND NON-DISCRIMINATION

The European Commission in 2020 adopted major strategies and

action plans to promote a Union of Equality, forging a comprehensive

framework for EU and national action. While the adoption of

the Equal Treatment Directive remained stalled, the Commission

highlighted the need to strengthen equality bodies and improve

equality data. Efforts to promote the rights of lesbian, gay, bisexual,

trans, non-binary, intersex and queer (LGBTIQ) people gained

momentum with the adoption of the first-ever EU strategy on LGBTIQ

equality. However, evidence also showed that, in some areas and

Member States, LGBTIQ people’s experiences of discrimination and

hate crime are increasing. Meanwhile, the COVID-19 pandemic and

the measures it prompted sometimes exacerbated social inequalities,

with older persons hit particularly hard.

Article 19 of the Treaty on the Functioning of the European

Union (TFEU) provides the basis for EU legislation to combat

discrimination based on sex, racial or ethnic origin, religion or

belief, disability, age or sexual orientation. The Council of the

EU has adopted comprehensive legislation protecting against

discrimination on grounds of gender or racial or ethnic origin in

key areas of life. These include employment and occupation;

education, though this is not covered by the gender equality

directives; social protection; and access to and supply of goods

and services that are available to the public, including housing.

In contrast, EU legislation protects against discrimination

on grounds of religion or belief, disability, age and sexual

orientation only in the area of employment and occupation.

FRA OPINION

3.1

Learning from the lessons of the COVID-19

pandemic, the EU legislator should continue to

explore all possible avenues to adopt the Equal

Treatment Directive without further delay. This

would ensure that EU legislation offers com-

prehensive protection against discrimination

on grounds of religion or belief, disability, age

and sexual orientation in key areas of life,

such as education; social protection, including

social security and healthcare; and access to

and supply of goods and services available to

the public, including housing.

As a result, some of the protected characteristics set out in

Article 19 of the TFEU (sex and racial or ethnic origin) enjoy

wider protection than others (religion or belief, age, disability

and sexual orientation), resulting in an artificial hierarchy of protected grounds. The European

Commission proposed an Equal Treatment Directive in 2008. Its adoption would close this gap

by extending protection against discrimination on grounds of religion or belief, age, disability

and sexual orientation to the areas of education, social protection, and access to, and supply

of, goods and services available to the public. No progress on adoption of the Commission’s

proposal was achieved at EU Council level in 2020.

The European Parliament reiterated its call to adopt the proposal, while the European Commission

continued to encourage Member States to swiftly reach an agreement on the text. Meanwhile,

the COVID‑19 pandemic underscored the increased risk of discrimination that people may face in

times of health crises on various grounds beyond sex and racial or ethnic origin, in particular age.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

3.2

EU institutions and Member States should

adopt and mainstream a rights-based ap-

proach towards ageing and older persons,

including in their pandemic exit strategies.

This approach should be reflected in all re-

levant initiatives and policies, including in

actions to implement the European Pillar of

Social Rights and promote social inclusion

policies. This means:

—

combating ageist perceptions that lead

to age discrimination, which are barriers

to the equal treatment of older persons

and the full enjoyment of their funda-

mental rights;

—

promoting the participation of older per-

sons in all aspects of social life, including

in the design and monitoring of the imple-

mentation of measures that affect them;

—

focusing on those who are more vulne-

rable and delivering on particular needs

they may have by using all available

means, including accessible new tech-

nologies and digital tools, while also

maintaining non-digital services;

—

collecting and analysing robust data and

evidence about the rights and well-being

of older persons.

Evidence suggests that older people were among the hardest hit by and during

the COVID‑19 pandemic. Older persons had a greater health risk than younger

age groups because of their higher incidence of underlying health conditions.

The pandemic also had broader implications, affecting older persons’ well‑

being and rights. Ageist stereotypes and discriminatory discourse; restrictive

measures based on age; difficulties in accessing goods and services, including

because of the digital divide between generations; and feelings of isolation

and stress undermined their right to lead a life of dignity, independence and

participation, enshrined in the EU Charter of Fundamental Rights. These factors

also undermined their right to equal treatment and opportunities, as set out in

the Charter and the European Pillar of Social Rights.

On the other hand, various actors took measures to alleviate the pandemic’s

impact on older persons, and to protect and help implement their rights, including

through using new technologies and digital tools. Moreover, the broader discussion

on the rights of older persons and their well‑being gained momentum in 2020.

The Council of the EU adopted conclusions calling on EU institutions and Member

States to use a rights‑based approach to ageing, including in their pandemic exit

strategies. It further highlighted the need to take advantage of digitalisation

opportunities to promote older persons’ well‑being.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Certain Member States have introduced legal and policy measures that

jeopardise the fundamental right to equal treatment regardless of sexual

orientation. FRA’s second LGBTI survey and surveys conducted in several

Member States showed high levels of discrimination and harassment towards

LGBTI+ persons across the EU, and a notable decrease in social acceptance.

Hate speech against LGBTI+ persons in public discourse is a particularly

worrying phenomenon, as it further incites discrimination.

Measures to contain the pandemic particularly affected LGBTI+ persons,

especially young people living at home who faced familial violence because

of their sexual orientation and/or gender identity. In this regard, safeguarding

their rights became even more difficult.

To address and improve the situation of LGBTIQ persons, the European

Commission adopted its LGBTIQ equality strategy 2020–2025. This sets out

a series of targeted actions around four main pillars focused on tackling

discrimination, ensuring safety, building inclusive societies and leading the

call for LGBTIQ equality around the world.

FRA OPINION

3.3

EU Member States are encouraged to avoid

any actions that jeopardise the fundamental

right to equal treatment regardless of sexual

orientation and gender identity and to continue

adopting action plans in line with the Com-

mission’s LGBTIQ equality strategy. They are

encouraged to adopt and implement legal and

policy measures to ensure that lesbian, gay,

bisexual, trans and intersex persons can fully

enjoy their fundamental rights under EU and

national law.

EU Member States should consider the avai-

lable evidence on discrimination, including data

from FRA’s second LGBTI survey, to identify

and adequately address protection gaps. They

should also take into account the guidance

provided by the LGBTIQ equality strategy. In

particular, measures should be taken to effec-

tively combat hate speech and hate crime and

to address the harmful impacts of homophobic

and transphobic statements made by public

authorities and officials.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

RACISM, XENOPHOBIA

AND RELATED INTOLERANCE

The year 2020 was a challenging one.

The COVID-19 pandemic brought to the surface

existing racism, xenophobia and related

intolerance and exacerbated them. The health

crisis was increasingly used as a pretext to attack

minorities – including migrants, people with

immigrant backgrounds and Roma – who were

already subject to racial and ethnic discrimination,

hate speech and hate crime. The Black Lives

Matter movement mobilised societies across

the globe to address racism and discrimination

by law enforcement authorities. The European

Commission adopted its first ever anti-racism

action plan, setting out concrete measures for

tackling racism and ethnic discrimination in the EU. A number of EU Member States

took steps to develop national anti-racism action plans and other measures to address

extremism, hate crime and hate speech.

FRA OPINION

4.1

EU Member States should fully and correctly

transpose and apply the Framework Deci-

sion on Racism and Xenophobia to crimi-

nalise racist hate crime and hate speech.

Accordingly, Member States shall take the

necessary measures to ensure that a ra-

cist or xenophobic motive is considered an

aggravating circumstance or, alternatively,

that the courts may take such a motive into

consideration in determining the penalties.

In addition to fully transposing and enfor-

cing EU legislation on fighting hate crime,

Member States should put measures in place

that encourage victims and witnesses to

come forward and report hate crime. They

should also strengthen the ability of natio-

nal law enforcement systems to correctly

identify and record hate crime.

The Council Framework Decision on Racism and Xenophobia (2008/913/JHA) sets

out a common criminal law approach to certain forms of racism and xenophobia

that amount to hate speech and hate crime. The European Commission initiated

infringement procedures against two Member States that had not fully and

correctly incorporated the Framework Decision into national law.

International monitoring bodies similarly revealed legal gaps in the criminal codes

of a number of Member States as regards hate speech or the criminalisation of

racial or xenophobic motivation as aggravating circumstance. Meanwhile, the

European Court of Human Rights (ECtHR) and national high courts set limits on

relying on freedom of speech to justify hate speech and incitement to hatred.

Racism and extreme right‑wing sentiments continued to pose serious challenges

across the EU in 2020. Several people were murdered in hate and extremist

crimes, following a trend seen in previous years. International and national

human rights bodies raised concerns about the growing rate of hate speech

online, often perpetrated by media or political figures, and targeting migrants

and ethnic minorities.

Ethnic minorities, including migrants, increasingly experience discrimination across

different areas of life, and discriminatory perceptions and stereotypes persist

among the general public, survey findings revealed. These trends intensified

with the outbreak of the COVID‑19 pandemic, as FRA and others reported.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Article 21 of the EU Charter of Fundamental Rights prohibits any discrimination

on the grounds of ethnic origin and race. Similarly, the Racial Equality

Directive (2000/43/EC) prohibits any discrimination on grounds of ethnic or

racial origin in access to education; employment; services, including housing;

and social protection, including healthcare. A number of EU Member States still

do not implement the directive’s provisions correctly, reports of the European

Commission and of international human rights monitoring bodies show.

The Commission continued infringement procedures against Member States

that discriminated against Roma children in education. Meanwhile, international

human rights bodies raised concerns about the independence of the equality

bodies established by the Racial Equality Directive.

FRA OPINION

4.2

EU Member States should significantly im-

prove the effectiveness of their measures and

institutional arrangements for applying fully

and correctly the Racial Equality Directive. In

particular, Member States should enhance the

independence of equality bodies. They should

ensure that such bodies are appropriately man-

dated and resourced to fulfil effectively the

tasks assigned to them in the EU’s non-dis-

crimination legislation.

Whereas some forms of ethnic profiling can be legal, discriminatory profiling

contradicts the principles of the International Convention on the Elimination of

All Forms of Racial Discrimination (ICERD) and other international standards,

including those embodied in the European Convention of Human Rights

(ECHR) and related jurisprudence of the ECtHR, as well as the EU Charter

of Fundamental Rights. Article 11 (3) of the Police Directive (2016/680) on

automated individual decision‑making prohibits “[p]rofiling that results in

discrimination against natural persons on the basis of special categories of

personal data”. These include data revealing racial or ethnic origin and religious

beliefs, and genetic and biometric data.

Discriminatory profiling based on ethnicity persists in the EU, as previous

fundamental rights reports noted, and surveys and international monitoring

bodies’ reports attest. Some countries reported disproportionate enforcement

of COVID‑19‑related restrictions with respect to ethnic minority groups.

Discussions of preventing and countering police racism, spurred by cases across

the EU and by the Black Lives Matter movement, triggered developments at

both EU and national levels.

FRA OPINION

4.3

EU Member States should adopt the necessary

measures to prevent and eradicate discrimi-

natory attitudes among police officers. This

can be done by assessing existing safeguards

against institutional forms of discrimination,

including clear mission statements, robust

systems of performance review with regard

to preventing institutional discrimination, and

inclusive and effective independent complaint

mechanisms.

Specific, practical and ready-to-use guidance

against discriminatory ethnic profiling by police

officers exercising their duties should be issued

by law enforcement authorities, included in

standard operating procedures and codes of

conduct, and systematically communicated to

frontline officers.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

4.4

EU Member States are encouraged to deve-

lop dedicated national action plans to fight

racism, racial discrimination, antisemitism,

xenophobia and related intolerance. Im-

plementing such plans would provide EU

Member States with an effective framework

towards meeting their obligations under the

Racial Equality Directive and the Framework

Decision on Combating Racism and Xeno-

phobia.

In line with the EU anti-racism action plan, EU

Member States should consider developing

national plans in a participatory manner, in-

volving regional and local authorities, equa-

lity bodies and civil society. Moreover, the

impact and effectiveness of actions taken

should be regularly and transparently as-

sessed, pursuant to clear goals and time-

lines, informed by evidence and by using

performance indicators.

In 2020, the EU stepped up its efforts to act against racism. The European

Commission adopted its first EU anti‑racism action plan, for 2020–2025. It also

addressed racism, bias‑motivated harassment and violence, and protection

and support for victims of hate crime in a number of other policy instruments,

including the EU’s strategy on victims’ rights 2020–2025 and the new EU Roma

strategic framework.

Almost 20 years after the UN World Conference against racism called on countries

to develop and elaborate national action plans against racism, the European

Commission encouraged all EU Member States to develop and adopt national

action plans against racism and racial discrimination by the end of 2022. In 2020,

a number of Member States took steps towards developing national action plans

to fight racism, xenophobia and related intolerance.

International monitoring bodies, however, raised concerns about weaknesses

in the design of such national action plans, noting that these could negatively

affect their implementation, impact and monitoring. Some fail to address racism

comprehensively; many lack precision in defining concrete steps; and there is

a shortage of means to meet the objectives, of benchmarks and of indicators

to measure progress.

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ROMA EQUALITY AND INCLUSION

The first EU Framework on National Roma Integration Strategies

ended in 2020, and the new 10-year strategic framework started in

the midst of the COVID-19 pandemic. The first framework brought

little overall progress. Evaluations show some gains in education and

poverty reduction, but none, or even deterioration, in crucial areas

such as employment, healthcare and housing. The new EU Roma

Strategic Framework for equality, inclusion and participation sets

ambitious targets in seven key areas: non-discrimination, inclusion,

participation, education, employment, health and housing. It sets

out a stronger monitoring framework, with a range of quantifiable

and measurable targets to track progress. Meanwhile, the pandemic

affected Roma and Traveller communities disproportionately by

amplifying inequalities and, in some countries, fuelling antigypsyism

and anti-Roma prejudice.

Article 21 of the EU Charter of Fundamental Rights prohibits

discrimination based on ethnic or social origin or membership

of a national minority. For the past 20 years, the Racial Equality

Directive (2000/43/EC) has promoted equal treatment and

prohibited direct and indirect discrimination, including

harassment, based on racial or ethnic origin, in areas such as

employment, education, social protection and advantages,

healthcare, or accessing goods and services, including housing.

However, antigypsyism, a significant barrier for progress in

Roma inclusion, is deeply rooted. Almost half of EU citizens

(46 %) would be uncomfortable having Roma or Travellers

as neighbours, FRA’s Fundamental Rights Survey 2019, which

addressed the general population, shows. The COVID‑19

pandemic, which affected Roma and Traveller communities

disproportionately, amplified inequalities and, in some countries,

fuelled further antigypsyism and anti‑Roma prejudice.

FRA OPINION

5.1

Drawing on lessons learned during the

COVID-19 pandemic, EU Member States should

ensure that the fight against discrimination

and antigypsyism is mainstreamed in all policy

areas of their national Roma strategies. The

strategies should include targeted measures

to tackle antigypsyism and discrimination af-

fecting Roma and Travellers.

Such measures should be designed and im-

plemented together with Roma communities

and their representatives to promote positive

narratives about Roma and Travellers, raising

awareness of their history of discrimination,

segregation and persecution.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

5.2

EU Member States should implement coor-

dinated measures to ensure that socially

excluded and marginalised Roma and Travel-

ler children have access to distance learning

tools. Any measures in education should

include targeted actions tailored to specific

needs of the diverse Roma and Traveller

groups, drawing in particular from positive

experience with Roma teaching assistants

and mediators. Member States should consi-

der encouraging the recruitment, training

and deployment of more Roma mediators

and teachers with a Roma background. They

should also ensure that targeted measures

are sustainable and well-funded, making

use of EU funds as well as other funding

opportunities for measures targeting Roma

as well as for structural reforms for inclusive

education.

Article 14 of the EU Charter of Fundamental Rights enshrines the right to education.

The European Pillar of Social Rights emphasises that everyone has the right

to high‑quality and inclusive education (Chapter 1, principle 1). Across the EU,

including in western Member States, the majority of young Roma and Travellers

drop out of education or training early, the most recent data show. Despite

a little progress in the past decade, the educational gap between Roma and

the general population remains significant.

Moreover, Roma and Travellers living in segregated and marginalised settings

often lack the necessary IT equipment and/or internet access, FRA’s and other

research findings show. Persistent inequality and the lack of successful policies

to provide basic infrastructure and services widen the gap between Roma

and Travellers and the general population. They also affect the opportunities

of Roma children to access education equally. The COVID‑19 pandemic made

these realities very visible. FRA’s research also shows that some mainstream

measures have failed to reach Roma and Travellers.

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The new EU Roma strategic framework for equality, inclusion and participation

is part of the EU’s overall political guidelines for building a Union of equality. It

will contribute to the EU anti‑racism action plan 2020–2025 and to implementing

the principles of the European Pillar of Social Rights and the UN Sustainable

Development Goals.

The previous EU framework for national Roma integration strategies, which

aimed to close the gap between Roma and the general population, did not

reach its ambitious goals for education, employment, healthcare and housing

by 2020. Member States made only little progress in certain areas of education

and poverty reduction, and no progress – or conditions even deteriorated – in

employment, housing and health, FRA data show.

Based on an evaluation of the previous framework, the European Commission

recognised the urgent need to renew and step up the commitment to Roma

equality, inclusion and participation at both European and national levels. The

new strategic framework sets seven objectives and related targets to achieve

by 2030, with a focus on fighting antigypsyism and discrimination and on

promoting the full participation and inclusion of Roma, through a combination

of mainstream and targeted policies.

FRA OPINION

5.3

EU Member States should prioritise the im-

plementation of the new EU Roma strategic

framework. Their national plans should define

ambitious objectives and targets, which take

into account lessons learned from the previous

EU framework and evaluations of national

strategies as well as the COVID-19 pandemic.

Effective monitoring systems should assess

progress, measuring the impact of both mains-

tream and targeted measures for the social

inclusion of Roma and Travellers, as well as

the effective use of national and EU funds.

National Roma strategies should include spe-

cific reference to the meaningful participation

of Roma and Travellers in designing, assessing

and monitoring implementation measures and

actions.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

ASYLUM, VISAS, MIGRATION,

BORDERS AND INTEGRATION

Respect for fundamental rights at borders

remained one of the top human rights challenges

in the EU. Deaths at sea, delays in assigning

a safe port to rescued migrants and threats

against humanitarian rescue boats continued.

So did allegations of pushbacks and violence.

The European Commission presented a new

Pact on Migration and Asylum, a package of

hard law proposals and soft law documents that

puts a stronger focus on border procedures and

proposes new forms of solidarity. Meanwhile,

asylum procedures were adapted to cope with

COVID-19-related restrictions. The EU made

progress in establishing its large-scale information

technology (IT) systems and started exploring the

use of artificial intelligence for border control and

migration management. Following Brexit, citizens of the United Kingdom became subject

to new rules.

FRA OPINION

6.1

EU Member States should promptly and

effectively investigate all allegations of

pushbacks and ill-treatment at borders, and

increase transparency on measures taken.

Member States should set up effective and

independent monitoring mechanisms at

borders. To guarantee more complete fun-

damental rights compliance, these mecha-

nisms should also cover the monitoring of

border-surveillance activities and not only, as

the Pact on Migration and Asylum proposes,

the pre-entry screening procedure itself.

In 2020, widely recognised human rights bodies reported allegations of individuals

being unlawfully turned back at land and sea borders, at times with police

violence. Article 78 (1) of the TFEU and Articles 18 and 19 of the EU Charter of

Fundamental Rights prohibit

refoulement

– meaning the return of an individual

to a risk of persecution or serious harm – and collective expulsions. Article 7

of Regulation (EU) 2019/1896 on the European Border and Coast Guard and

Article 4 of the Schengen Borders Code require border management to comply

with fundamental rights. In its Pact on Migration and Asylum, the European

Commission proposed new EU rules to monitor fundamental rights at borders.

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Migrants apprehended in connection with their irregular crossing of an

internal EU border are not systematically heard before they are passed back

to a neighbouring EU Member State. They are also not systematically notified

of the decision to pass them back to another EU Member State.

As a general principle of EU law, any decision affecting a person must be

taken on an individual basis, and persons have the right to be heard. These

principles are important safeguards to enable individuals to raise issues that

could bar the passing back, and to exercise their right to an effective remedy

under Article 47 of the Charter.

FRA OPINION

6.2

EU Member States should put in place and ap-

ply procedures guaranteeing that persons are

heard before being passed back to a neighbou-

ring EU Member State, and formally notify

them of the decision taken.

The legislative proposals under the Pact on Migration and Asylum put a stronger

focus on border procedures, while proposing new solidarity mechanisms.

Border procedures may result in asylum applicants being confined to facilities

at or near the border, often at remote locations where it may be difficult to

meet reception standards or apply safeguards to prevent arbitrary deprivation

of liberty, as the Reception Conditions Directive (2013/33/EU) and the Return

Directive (2008/115/EC) require. This could result in treatment that may not

comply with the right to human dignity, as guaranteed by Article 1 of the

Charter.

FRA OPINION

6.3

When implementing the objectives of the

Pact on Migration and Asylum, EU Member

States should ensure that conditions of stay

in first-reception facilities at borders are ade-

quate, and fully respect the right to liberty

and other fundamental rights set out in the EU

Charter of Fundamental Rights. There should

be regular oversight and preventive measures

to avoid protracted stays.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

6.4

EU institutions, agencies and EU Member

States should comprehensively assess the

impact on fundamental rights of any AI use

in the area of home affairs, including asylum,

visa, immigration and borders. Stringent,

effective and independent oversight mecha-

nisms should accompany the use of AI.

The EU and its Member States are exploring the use of artificial intelligence

(AI) to enhance decision making in home affairs, including asylum, borders and

immigration. AI‑driven tools may affect different fundamental rights. This is due

to, for instance, bias in the design of the algorithm; or a lack of transparency in

regards to the data used, which makes it difficult for the person concerned to

rebut the results produced by such tools.

FRA OPINION

6.5

EU institutions, agencies and EU Member

States should continue to raise awareness

of the fundamental rights safeguards in the

large-scale EU IT systems and their intero-

perability. Data protection authorities should

be adequately resourced to support people

who wish to exercise their right to access,

correction and deletion of their data.

The EU has set up six large‑scale information technology (IT) systems to support

Member States to manage migration, asylum and borders, enhance judicial

cooperation, and strengthen internal security. Three systems are operational:

the European Asylum Dactyloscopy (Eurodac), the Visa Information System (VIS),

and the Schengen Information System (SIS). The other three are in development:

the Entry/Exit System (EES), the European Travel Information and Authorisation

System (ETIAS), and the European Criminal Records Information System for

Third‑Country Nationals (ECRIS‑TCN).

The legal instruments setting up such IT systems and their interoperability contain

several safeguards to protect fundamental rights that the Charter enshrines, such

as the protection of personal data (Article 8), non‑discrimination (Article 21) and

the rights of the child (Article 24). However, these safeguards remain little known.

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INFORMATION SOCIETY, PRIVACY

AND DATA PROTECTION

In 2020, the COVID-19 pandemic spurred the development and uptake

of innovative technologies, including artificial intelligence (AI), to

counter its spread. In parallel, the ongoing use of AI technologies

brought concerns over the rights to data protection and privacy

(alongside other rights, such as non-discrimination). EU and

international bodies swiftly responded by emphasising applicable

data protection standards. At the same time, the EU continued its

work on regulating the use of AI. It published a white paper and

accompanying report that recognised the role of fundamental rights

– alongside ethical frameworks – in ensuring rights-compliant use of

AI. The EU institutions and EU Member States also further developed policies and laws that

affect privacy and data protection, in areas ranging from data retention and surveillance to

the fight against child sexual abuse material.

The COVID‑19 pandemic prompted people to use digital data

and new technologies to curb the spread of the virus and

alleviate its negative impacts on society. From contact‑tracing

and proximity applications, to teleconferencing software or the

use of algorithms in education, the intensive collection and

treatment of personal data brought risks to the fundamental

rights to data protection and respect for private life.

The year’s developments underscored that, in times of crisis,

it is crucial to conduct effective and appropriate balancing

exercises to ensure that health‑protecting measures do not

unnecessarily or disproportionately affect fundamental rights.

FRA OPINION

7.1

EU Member States should make sure that any

measures, policies or legal initiatives taken

in a time of crisis, such as a pandemic, do not

interfere disproportionately with the rights

to data protection and respect for private life.

Specifically, EU Member States should ensure

that Article 8 of the EU Charter of Fundamental

Rights, as well as the principles of fairness,

data minimisation, and purpose limitation,

which Article 5 of the GDPR highlights, are

applied.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

7.2

EU Member States should ensure that na-

tional data protection supervisory autho-

rities have sufficient human, technical and

financial resources to allow them to carry

out their mandates effectively. To assess

the adequacy of resources, Member States

should support independent and objective

reviews of the national data protection su-

pervisory authorities’ workload.

Continuing the trend that FRA identified in its

Fundamental Rights Report 2020,

the workload of data protection supervisory authorities remained extremely

demanding. The large numbers of investigations and complaints persisted in

most Member States. In parallel, the incomplete harmonisation of procedures

and key concepts, on which the cooperation procedure on cross‑border disputes

rests, prevented swift resolution of these disputes.

There were signs of progress in 2020 at both national level (with regard to the

increase of financial and human resources) and international level (with regard

to the harmonisation of gaps). However, there is still room for improvement.

The EU’s strong legal framework for data protection will work effectively only

when all actors are sufficiently equipped to respond promptly and effectively

to all requests.

FRA OPINION

7.3

EU institutions and EU Member States should

ensure that all regulatory efforts to fight

against criminal activities contain the ne-

cessary safeguards to guarantee compliance

with the principles of legality, necessity and

proportionality. They should also provide for

effective oversight and access to remedial

mechanisms. In this context, EU institutions

and EU Member States should fully take into

account the relevant case law of the Court

of Justice of the European Union.

With terrorist threats and criminal activities persisting throughout 2020, EU

institutions and Member States called for the prompt adoption of measures

allowing the use of available data and technologies to fight crime. The use of

data‑mining technologies was variously invoked to fight against online child

sexual abuse material, to support criminal investigations, to increase surveillance,

and to fight against illegal online content.

However, institutional bodies and civil society often questioned the necessity

and proportionality of such measures at both national and EU levels. Although

security measures have legitimate objectives, they should not be used as

a pretext to lower fundamental rights standards.

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The pandemic did not stop work on strategies, legal initiatives and policies

aimed at fostering or regulating the use of AI. To the contrary – the crisis

pushed bodies to adopt swift measures that support the use of AI, which

was also promoted as a tool for fighting the pandemic. Both the EU and

Member States very actively developed various AI strategies and new legal

instruments throughout 2020.

However, as FRA already flagged in its

Fundamental Rights Report 2019

and

Fundamental Rights Report 2020,

many AI strategies favour a reference to

‘ethics’, and only mention the need to protect fundamental rights, without

outlining a detailed rights‑based approach. Yet, as FRA’s report on AI and

fundamental rights highlighted, the use of AI can have a far‑reaching effect

on people’s fundamental rights. Therefore, fundamental rights must be firmly

embedded in any future legislation.

FRA OPINION

7.4

EU institutions and EU Member States should

ensure that any future EU or national AI-related

legal and political instruments are grounded in

respect for fundamental rights. To achieve this,

they should include strong legal safeguards,

promote fundamental rights impact assess-

ments, and ensure independent oversight and

access to effective remedies.

EU Member States should make sure that ex-

traordinary circumstances, such as the pan-

demic, do not lower the level of fundamen-

tal rights protection in the use of AI-related

technologies.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

RIGHTS OF THE CHILD

The COVID-19 pandemic put unprecedented strain on children and families across the

EU in 2020, especially those who were already economically or socially disadvantaged.

Despite Member States’ efforts, distance education was a challenge for children who lack

computers or internet access, or live in overcrowded households. The threat of abuse at

home also loomed large. Children continued to submit fewer asylum applications, but

their reception conditions remained inadequate in several Member States. Ten Member

States welcomed 573 unaccompanied children and 771 children in families who were

relocated from the Greek ‘hotspots’. Most Member States incorporated into national law

the Procedural Safeguards Directive for children who are suspects or accused persons in

criminal procedures. However, infringement procedures against seven Member States

remain open. The European Commission undertook extensive consultations on the EU

strategy on the rights of the child, which it plans to adopt in 2021.

FRA OPINION

8.1

The European Commission should consider

the impact of COVID-19 when preparing to

launch initiatives under the EU Child Gua-

rantee. The guarantee should define targeted

initiatives and allocate sufficient funding to

protect the most vulnerable children, es-

pecially in the areas of education, housing,

health and social welfare.

EU Member States should continue their ef-

forts to ensure that all children, especially

the most vulnerable, have access to school

on equal terms, and to protect children from

violence. Member States should make sure

that economic measures to support families

with children produce a sustainable benefit

and are accessible to the most vulnerable

families, such as Roma and migrant families.

For example, Member States could assess

the need to review the threshold for acces-

sing regular social payments for low-income

families.

To develop evidence-based policies, Member

States and the European Commission should

collect data assessing children’s own ex-

periences of, and views on, the impact of

the pandemic on their physical and mental

well-being.

The COVID‑19 pandemic had a strong impact on the well‑being

of children in Europe. Loss of family income, closure of schools,

and increased violence at home and online raised concerns

about rights under Article 3, 14 and 24 of the EU Charter of

Fundamental Rights. Member States have provided families

with a number of economic support packages to compensate

for the loss of income. However, the limited amount and length

of the support raise questions about the long‑term usefulness

and sustainability of such financial packages.

The transition to home schooling

was not the same for all families.

Some children were not fully able

to participate in school routines, as

they lacked access to an internet

device or to a quiet space to learn.

Others lost the entitlement to free

school lunches. During school closure

and quarantines, the longer periods

spent at home resulted in an increase

in reported cases of violence against

children, and of cases of children being

sexually exploited via the internet.

Preparations for an EU Child Guarantee continued. A scheme

requested by the European Parliament, it aims to provide

all children with equal access to basic services, focusing on

healthcare, education, early childhood education and care,

decent housing and adequate nutrition. The EU Child Guarantee

is expected to be adopted in 2021.

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Children arriving in Europe are entitled to protection under Article 24 of the

EU Charter of Fundamental Rights, and to adequate reception conditions in

accordance with the Reception Conditions Directive. The directive requires

Member States to assess the reception needs of children and provide access

to education and to an adequate standard of living, among others. However,

in daily practice, reception conditions raise serious concerns in some Member

States, with overcrowded centres, inadequate hygiene, or a lack of child‑

appropriate reception centres.

Children with families and unaccompanied children continue to face detention.

Although EU law does not prohibit the administrative detention of children

in a migration context, undocumented children, and children applying for

asylum or in a return procedure, should not be deprived of liberty. Detention

of children is to be understood only as an exceptional measure of last resort.

The European Commission launched the Pact on Migration and Asylum, which

proposes a set of solidarity mechanisms for moments of pressure, including

relocation. The joint efforts of the European Commisssion, Greek authorities

and 10 Member States allowed the relocation of 573 unaccompanied children,

and 771 children in families, from the Greek hotspots.

Meanwhile, there are still around 1,000 children in insecure accomodation in

Greece. Around 100 of them live in hotspots.

FRA OPINION

8.2

The European Commission and EU Member

States should strengthen efforts to relocate

unaccompanied and other vulnerable children

currently living in Member States where they

encounter inadequate reception conditions.

Member States should consider existing good

practice in the relocation of children to ensure

the best interests of the child throughout the

procedure.

Member States should make every effort to

ensure the protection of children, making sure

reception conditions respect minimum stan-

dards for a dignified standard of living and

child-appropriate facilities, which the Recep-

tion Conditions Directive sets out.

Member States should develop credible and

effective systems that will make it unneces-

sary to detain children for asylum or return

purposes.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

8.3

EU Member States should strengthen efforts

to implement the Procedural Safeguards Di-

rective (2016/800/EU) in the daily practice

of professionals. They could do so by pro-

viding training and professional guidance

to all practitioners, including police officers,

judges, lawyers and prosecutors.

The European Commission could further

support EU Member States – for example,

by providing guidance for the transposition

and implementation of the directive and by

facilitating the exchange of practical expe-

riences among Member States.

Article 49 of the EU Charter of Fundamental Rights guarantees important

safeguards for the presumption of innocence and right of defence. Article 24

makes the best interests of the child a primary consideration. The Procedural

Safeguards Directive for children who are suspects or accused persons in criminal

proceedings (2016/800/EU) defines and expands on those points. It requires

Member States to promptly inform children and their parents of their rights

when children are suspects or accused persons, ensure a lawyer assists the

child, and assess the individual situation of each child.

By the end of 2020, most Member States had amended their national laws to

incorporate the directive. The deadline to do so was 11 June 2019. However,

the infringement procedures that began against seven Member States in 2019

remained open at the end of 2020.

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ACCESS TO JUSTICE

At EU level, 2020 brought significant innovations in the political and institutional

framework on victims’ rights. The European Commission established a victims’ rights

coordinator, adopted its first victims’ rights strategy, for 2020–2025, and set up a victims’

rights platform. At national level, the COVID-19 pandemic largely dictated developments. It

drew attention to domestic violence and to difficulties in ensuring access to justice during

times of severely restricted mobility and public life. Meanwhile, challenges to judicial

independence persisted in several Member States. The Commission published its first ever

rule of law report in 2020, and the European Council adopted the Regulation on a general

regime of conditionality for the protection of the Union budget.

Victims of crimes against the person have rights to recognition

and justice as provided for in Article 47 of the EU Charter of

Fundamental Rights. In 2020, the European Commission created

a framework to further develop these rights and draw closer

to the objective of fully acknowledging them and giving them

effect. Building on the Victims’ Rights Directive, it appointed

a Victims’ Rights Coordinator, adopted the first EU victims’

rights strategy, and established the Victims’ Rights Platform.

However, to a considerable extent, the strategy’s success will

depend on Member States’ commitment to implementing it.

FRA OPINION

9.1

EU Member States need to follow up on their

commitment to ensuring full and correct im-

plementation of the Victims’ Rights Directive.

They should also further develop the rights of

crime victims in line with the European Com-

mission’s victims’ rights strategy.

Member States should take effective measures

to help implement the right of all victims to

comprehensive support services, including

information, advice and support relevant to

the rights of victims and to their appropriate

role in criminal proceedings.

The strategy identifies key priorities, including supporting

victims in reporting crimes, improving support and protection of

vulnerable victims, facilitating victims’ access to compensation,

and strengthening cooperation and coordination among all

relevant stakeholders. In all these respects, victim support

organisations perform a crucial role. Therefore, to make the

strategy work, Member States’ readiness to assess and, where necessary, improve and strengthen

existing support structures is essential.

In 2020, several EU Member States (including Bulgaria, Estonia and Lithuania), as well as Serbia,

established or reinforced the structures of victim support organisations. However, challenges

remain. These include, for example, challenges to providing victims information about their rights;

to providing practical advice and support to victims in making use of their rights; and to victim

support services informing victims about their role

in criminal proceedings and providing relevant

support, in accordance with Article 9 (1) (a) of the

Victims’ Rights Directive.

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FRA OPINION

9.2

The EU Member States that have not yet

ratified the Council of Europe Convention on

preventing and combating violence against

women and domestic violence (Istanbul

Convention) are encouraged to do so.

FRA encourages Member States to address

gaps in national legislation concerning the

protection of women who are victims of

violence, including by guiding the police on

their task of intervening in cases of partner

violence, and to adopt measures that en-

sure the immediate and robust protection

of women against repeat victimisation and

retaliation.

The Council of Europe’s Istanbul Convention not only defines standards but,

through the work of its monitoring body (GREVIO), also drives and guides the

development of women’s rights to protection against gender‑based violence

and to recognition and justice if they become victims. However, by the end of

2020, Bulgaria, Czechia, Hungary, Latvia, Lithuania and Slovakia had still not

ratified the Convention.

In addition, the EU’s accession to the Convention is still pending. At the request

of the European Parliament, the CJEU worked on an opinion assessing if signing

and adopting the Convention is compatible with the EU treaties. Its opinion is

expected in the second quarter of 2021.

FRA OPINION

9.3

The EU and its Member States are encou-

raged to further strengthen their efforts and

collaboration to maintain and reinforce the

independence of the judiciary as an essential

component of the rule of law.

In addition, the Member States concerned

should take prompt action to fully comply

with the relevant judgments of the Court of

Justice of the European Union (CJEU). Member

States are also encouraged to act prompt-

ly on recommendations, such as those the

European Commission issues in its rule of

law procedure.

An independent judiciary is the cornerstone of the rule of law and of access to

justice (Article 19 of the TEU, Article 67 (4) of the TFEU, and Article 47 of the

EU Charter of Fundamental Rights). Challenges in the area of justice persisted

in several EU Member States, particularly regarding judicial independence. The

European Commission issued its first annual Rule of Law Report in 2020. The

issue of justice systems and their independence was one of the four focus areas

covered by the report.

The year also saw the adoption of the Regulation on a general regime of

conditionality for the protection of the Union budget. It explicitly mentions

corruption and compromising the independence of the judiciary among the

indicators of a breach of the rule of law.

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DEVELOPMENTS IN THE IMPLEMENTATION

OF THE CONVENTION ON THE RIGHTS

OF PERSONS WITH DISABILITIES

The European Commission started to develop a new disability strategy in 2020, initiating

a consultation process that continued throughout the year. It will launch a new strategy

in the first quarter of 2021. The European Parliament and Council reached a political

agreement on a new Common Provisions Regulation governing EU funds, which covers

the rights of persons with disabilities. Meanwhile, the COVID-19 pandemic put to the test

the duty of the EU and its Member States to comply with the Convention on the Rights

of Persons with Disabilities (CRPD). Member States introduced a wide range of measures

that significantly affected the rights of persons with disabilities. Persons with disabilities

and their representative organisations, as well as the structures set up under the CRPD

to protect them, took action to ensure that these measures comply with the Convention.

Overall, the pandemic underlined the importance of involving persons with disabilities and

their representative organisations in situations of risk, and the value of strong national

CRPD structures.

Governments took a broad range of measures to curb the spread of the coronavirus. Some of

these measures did not fully take into account the rights of persons with disabilities under the

CRPD, in particular Article 4 (duty to ensure and promote the rights of persons with disabilities)

and Article 11 (situations of risk and humanitarian emergencies), or the EU Charter of Fundamental

Rights, in particular Article 21 (non‑discrimination) and Article 26 (integration of persons with

disabilities). Some bans on visits were excessive, persons with disabilities could not attend

schools, or they had too few exemptions from rules on wearing masks or social distancing.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

10.1

In line with the CRPD, EU Member States

should, as part of their checks on legislative

and executive measures dealing with situa-

tions of risk (such as the COVID-19 pande-

mic), consider the impact of such measures

on the rights of persons with disabilities and

take steps to avoid any negative impact.

Measures to address situations of risk that

may directly or indirectly affect the rights of

persons with disabilities should be provided

by law, non-discriminatory and proportionate

to the legitimate aim pursued. In line with

the CRPD and the EU Charter of Fundamental

Rights, Member States should fully involve

persons with disabilities and their represen-

tative organisations, as well as the national

monitoring bodies set up under Article 33 of

the CRPD, in planning and monitoring such

measures.

The EU institutions and EU Member States

could support these checks by facilitating the

exchange of promising practices, particularly

between national parliaments.

Lockdown measures also caused problems, including in the distribution of food

and medical and cleaning supplies to persons with disabilities. Triage guidelines

did not conform to CRPD standards, and could lead to the denial of life‑saving

intensive care to persons with disabilities who had similar chances of survival to

persons without disabilities. In addition, the lockdowns often had a more negative

impact on the mental and physical well‑being of persons with disabilities. Their

specific needs were frequently overlooked.

There was a lack of appropriate communication with persons with disabilities and

of information for them about measures taken to address the pandemic, especially

in its early stages, and they seldom took part in planning such measures. Some

EU Member States have worked to ensure greater involvement of persons with

disabilities in planning and monitoring such measures in the future. That could

help reduce the risk that future measures will violate the CRPD.

FRA OPINION

10.2

EU Member States should communicate their

emergency responses in a fully accessible

way. They should fully implement relevant

EU directives, such as the revised Audiovi-

sual Media Services Directive and the Web

Accessibility Directive. Member States should

provide information using appropriate means

and formats – for example, subtitles, sign

interpretation, and easy-read language.

The pandemic has shown that crisis communications strategies of Member States

seldom make fully accessible all information about emergencies. Information

during the pandemic was not always presented by means and in formats that

allowed persons with disabilities to access it, even though this is required by

EU law, including the revised Audiovisual Media Services Directive (2018/1808)

and the Web Accessibility Directive (2016/2102).

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

The pandemic has underlined the urgent need for de‑institutionalisation. It

has shown not only that persons with disabilities are at greater physical risk

in this particular pandemic, but also that their mental well‑being is at greater

risk when they are in institutionalised settings, because of the resultant

isolation and lack of social contact.

Article 19 of the CRPD requires de‑institutionalisation, and the new European

disability strategy is likely to include it. The entry into force of the new Common

Provisions Regulation and the roll‑out of the disability strategy will increase

the pressure to complete the process of de‑institutionalisation.

FRA OPINION

10.3

In line with Article 19 of the CRPD and as part

of the new European disability strategy, the

EU and its Member States should urgently ac-

celerate their efforts to achieve de-institutio-

nalisation, including through the appropriate

use of EU funds to ensure that persons with

disabilities can live independently and be in-

cluded in the community.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

The year 2020 brought both progress and setbacks in terms of

fundamental rights protection. FRA’s

Fundamental Rights Report 2021

reviews major developments in the EU between January and

December 2020, and outlines FRA’s opinions thereon. Noting both

achievements and remaining areas of concern, it provides insights

into the main issues shaping fundamental rights debates across

the EU.

This year’s focus looks at the Coronavirus pandemic and its impact on

fundamental rights. The remaining chapters discuss the EU Charter

of Fundamental Rights; equality and non-discrimination; racism,

xenophobia and related intolerance; Roma integration; asylum and

migration; information society, privacy and data protection; rights of

the child; access to justice; and developments in the implementation

of the Convention on the Rights of Persons with Disabilities.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

PROMOTING AND PROTECTING

YOUR FUNDAMENTAL RIGHTS

ACROSS THE EU

—

For the full FRA

Fundamental Rights Report 2021

– see

https://fra.europa.eu/en/publication/2021/fundamental-

rights-report-2021