22.2.2007 EN Official Journal of the European Union L 53/1 COUNCIL REGULATION (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of the European Economic and Social Committee (1), Having regard to the opinion of the Committee of the Regions, Whereas: (1) The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, which are common values to the Member States. (2) The Charter of Fundamental Rights of the European Union (2), bearing in mind its status and scope, and the accompanying explanations, reflects the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the social charters adopted by the Community and by the Council of Europe and the case law of the Court of Justice of the European Communities and of the European Court of Human Rights. (3) The Community and its Member States must respect fundamental rights when implementing Community law. (4) Greater knowledge of, and broader awareness of, fundamental rights issues in the Union are conducive to ensuring full respect of fundamental rights. It would contribute to the attainment of this objective to establish a Community agency whose tasks would be to provide information and data on fundamental rights matters. Moreover, developing effective institutions for the protection and promotion of human rights is a common value of the international and European societies, as expressed by Recommendation No R (97) 14 of the Committee of Ministers of the Council of Europe of 30 September 1997. (5) The Representatives of the Member States, meeting within the European Council on 13 December 2003, agreed to build upon the existing European Monitoring Centre on Racism and Xenophobia established by Regulation (EC) No 1035/97 (3) and to extend its mandate to make it a Human Rights Agency. They also decided on that occasion that the seat of the Agency should remain in Vienna. (6) The Commission agreed and indicated its intention of presenting a proposal to amend Regulation (EC) No 1035/97 in that respect. The Commission subsequently issued its Communication of 25 October 2004 on the Fundamental Rights Agency, on the basis of which a large public consultation was carried out. (7) A European Union Agency for Fundamental Rights should accordingly be established, building upon the existing European Monitoring Centre on Racism and Xenophobia, to provide the relevant institutions and authorities of the Community and its Member States when implementing Community law with information, assistance and expertise on fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights. (8) It is recognised that the Agency should act only within the scope of application of Community law. (9) The Agency should refer in its work to fundamental rights within the meaning of Article 6(2) of the Treaty on European Union, including the European Convention on Human Rights and Fundamental Freedoms, and as reflected in particular in the Charter of Fundamental Rights, bearing in mind its status and the accompanying explanations. The close connection to the Charter should be reflected in the name of the Agency. (10) As the Agency is to be built upon the existing European Monitoring Centre on Racism and Xenophobia, the work of the Agency should continue to cover the phenomena of racism, xenophobia and anti-Semitism, the protection of rights of persons belonging to minorities, as well as gender equality, as essential elements for the protection of fundamental rights. (11) The thematic areas of activity of the Agency should be laid down in the Multiannual Framework, thus defining the limits of the work of the Agency. Due to the political significance of the Multiannual Framework, it is important that the Council itself should adopt it, after consulting the European Parliament on the basis of a Commission proposal. (12) The Agency should collect objective, reliable and comparable information on the development of the situation of fundamental rights, analyse this information in terms of causes of disrespect, consequences and effects and examine examples of good practice in dealing with these matters. (13) The Agency should have the right to formulate opinions to the Union institutions and to the Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council or the Commission, without interference with the legislative and judicial procedures established in the Treaty. Nevertheless, the institutions should be able to request opinions on their legislative proposals or positions taken in the course of legislative procedures as far as their compatibility with fundamental rights are concerned. (14) The Agency should present an annual report on fundamental rights issues covered by the areas of the Agency's activity, also highlighting examples of good practice. Furthermore, the Agency should produce thematic reports on topics of particular importance to the Union's policies. (15) The Agency should take measures to raise the awareness of the general public about their fundamental rights, and about possibilities and different mechanisms for enforcing them in general, without, however, dealing itself with individual complaints. (16) The Agency should work as closely as possible with all relevant Union institutions as well as the bodies, offices and agencies of the Community and the Union in order to avoid duplication, in particular as regards the future European Institute for Gender Equality. (17) Since cooperation with the Member States is an essential element for the successful performance of the tasks of the Agency, it should cooperate closely with the Member States through its different bodies, for the purpose of which the Member States should nominate National Liaison Officers, as primary contact points for the Agency in the Member States. The Agency should, in particular, communicate with the National Liaison Officers as regards reports and other documents drawn up by the Agency. (18) The Agency should collaborate closely with the Council of Europe. Such cooperation should guarantee that any overlap between the activities of the Agency and those of the Council of Europe is avoided, in particular by elaborating mechanisms to ensure complementarity and added value, such as the conclusion of a bilateral cooperation agreement and the participation of an independent person appointed by the Council of Europe in the management structures of the Agency with appropriately defined voting rights. (19) Recognising the important role of civil society in the protection of fundamental rights, the Agency should promote dialogue with civil society and work closely with non-governmental organisations and with institutions of civil society active in the field of fundamental rights. It should set up a cooperation network called the ‘Fundamental Rights Platform’ with a view to creating a structured and fruitful dialogue and close cooperation with all relevant stakeholders. (20) Given the particular functions of the Agency, each Member State should appoint one independent expert to the Management Board. Having regard to the principles relating to the status and functioning of national institutions for the protection and promotion of human rights (the Paris Principles), the composition of that Board should ensure the Agency's independence from both Community institutions and Member State governments and assemble the broadest possible expertise in the field of fundamental rights. (21) In order to ensure the high scientific quality of the work of the Agency, the Agency should avail itself of a Scientific Committee in order to guide its work by means of scientific objectivity. (22) The authorities appointing members of the Management Board, the Executive Board and the Scientific Committee should aim to achieve a balanced participation between women and men on these bodies. Particular attention should also be given to the balanced representation of women and men on the staff of the Agency. (23) Considering the significant role played by the European Parliament in the defence, mainstreaming and promotion of fundamental rights, it should be involved in the activities of the Agency, including the adoption of the Multiannual Framework for the Agency, and, given the exceptional nature and task of the Agency, the selection of the candidates proposed for the post of the Director of the Agency without setting a precedent for other Agencies. (24) The Agency should apply the relevant Community legislation concerning public access to documents as set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (4), the protection of individuals with regard to the processing of personal data as set out in Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (5), and concerning languages as set out in Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (6) and Regulation (EC) No 2965/94 of 28 November 1994 setting up a Translation Centre for bodies of the European Union (7). (25) Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (8) should apply to the Agency, as well as Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Antifraud Office (OLAF) (9). (26) The Staff Regulations of officials of the European Communities, the Conditions of Employment of other servants of the European Communities and the rules adopted jointly by the European Community institutions for the purpose of applying these Staff Regulations and Conditions of Employment should apply to the staff and to the Director of the Agency, including their rules relating to the dismissal of the Director. (27) The Agency should have legal personality and succeed the European Monitoring Centre on Racism and Xenophobia as regards all legal obligations, financial commitments or liabilities carried out by the Centre or agreements made by the Centre as well as the employment contracts with the staff of the Centre. (28) The Agency should be open to the participation of candidate countries. Furthermore, the countries with which a Stabilisation and Association agreement has been concluded should be allowed to participate in the Agency, since this will enable the Union to support their efforts towards European integration by facilitating a gradual alignment of their legislation with Community law as well as the transfer of know-how and good practice, particularly in those areas of the acquis that will serve as a central reference point for the reform process in the Western Balkans. (29) The Agency should initiate the necessary evaluations of its activities in due time, on the basis of which the Agency's scope, tasks and working methods could be reviewed. (30) Since the objectives of this Regulation, namely the provision of comparable and reliable information and data at European level in order to assist the Union institutions and the Member States in respecting fundamental rights, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the proposed action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (31) The contribution made by the Agency to ensuring full respect of fundamental rights in the framework of Community law is likely to help achieve the Community's objectives. With regard to the adoption of this Regulation, the Treaty does not provide for powers other than those set out in Article 308. (32) Nothing in this Regulation should be interpreted in such a way as to prejudice the question of whether the remit of the Agency may be extended to cover the areas of police cooperation and judicial cooperation in criminal matters. (33) As Regulation (EC) No 1035/97 would have to be substantially amended for the establishment of the Agency, it should be repealed in the interests of clarity, HAS ADOPTED THIS REGULATION: CHAPTER 1 SUBJECT MATTER, OBJECTIVE, SCOPE, TASKS AND AREAS OF ACTIVITY Article 1 Subject matter The European Union Agency for Fundamental Rights (the Agency) is hereby established. Article 2 Objective The objective of the Agency shall be to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights. Article 3 Scope 1. The Agency shall carry out its tasks for the purpose of meeting the objective set in Article 2 within the competencies of the Community as laid down in the Treaty establishing the European Community. 2. The Agency shall refer in carrying out its tasks to fundamental rights as defined in Article 6(2) of the Treaty on European Union. 3. The Agency shall deal with fundamental-rights issues in the European Union and in its Member States when implementing Community law. Article 4 Tasks 1. To meet the objective set in Article 2 and within its competences laid down in Article 3, the Agency shall: (a) collect, record, analyse and disseminate relevant, objective, reliable and comparable information and data, including results from research and monitoring communicated to it by Member States, Union institutions as well as bodies, offices and agencies of the Community and the Union, research centres, national bodies, non-governmental organisations, third countries and international organisations and in particular by the competent bodies of the Council of Europe; (b) develop methods and standards to improve the comparability, objectivity and reliability of data at European level, in cooperation with the Commission and the Member States; (c) carry out, cooperate with or encourage scientific research and surveys, preparatory studies and feasibility studies, including, where appropriate and compatible with its priorities and its annual work programme, at the request of the European Parliament, the Council or the Commission; (d) formulate and publish conclusions and opinions on specific thematic topics, for the Union institutions and the Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council or the Commission; (e) publish an annual report on fundamental-rights issues covered by the areas of the Agency's activity, also highlighting examples of good practice; (f) publish thematic reports based on its analysis, research and surveys; (g) publish an annual report on its activities; and (h) develop a communication strategy and promote dialogue with civil society, in order to raise public awareness of fundamental rights and actively disseminate information about its work. 2. The conclusions, opinions and reports referred to in paragraph 1 may concern proposals from the Commission under Article 250 of the Treaty or positions taken by the institutions in the course of legislative procedures only where a request by the respective institution has been made in accordance with paragraph 1(d). They shall not deal with the legality of acts within the meaning of Article 230 of the Treaty or with the question of whether a Member State has failed to fulfil an obligation under the Treaty within the meaning of Article 226 of the Treaty. Article 5 Areas of activity 1. The Council shall, acting on a proposal from the Commission and after consulting the European Parliament, adopt a Multiannual Framework for the Agency. When preparing its proposal, the Commission shall consult the Management Board. 2. The Framework shall: (a) cover five years; (b) determine the thematic areas of the Agency's activity, which must include the fight against racism, xenophobia and related intolerance; (c) be in line with the Union's priorities, taking due account of the orientations resulting from European Parliament resolutions and Council conclusions in the field of fundamental rights; (d) have due regard to the Agency's financial and human resources; and (e) include provisions with a view to ensuring complementarity with the remit of other Community and Union bodies, offices and agencies, as well as with the Council of Europe and other international organisations active in the field of fundamental rights. 3. The Agency shall carry out its tasks within the thematic areas determined by the Multiannual Framework. This shall be without prejudice to the responses of the Agency to requests from the European Parliament, the Council or the Commission under Article 4(1)(c) and (d) outside these thematic areas, provided its financial and human resources so permit. 4. The Agency shall carry out its tasks in the light of its Annual Work Programme and with due regard to the available financial and human resources. CHAPTER 2 WORKING METHODS AND COOPERATION Article 6 Working methods 1. In order to ensure the provision of objective, reliable and comparable information, the Agency shall, drawing on the expertise of a variety of organisations and bodies in each Member State and taking account of the need to involve national authorities in the collection of data: (a) set up and coordinate information networks and use existing networks; (b) organise meetings of external experts; and (c) whenever necessary, set up ad hoc working parties. 2. In pursuing its activities, the Agency shall, in order to achieve complementarity and guarantee the best possible use of resources, take account, where appropriate, of information collected and of activities undertaken, in particular by: (a) Union institutions and bodies, offices and agencies of the Community and the Union, and bodies, offices and agencies of the Member States; (b) the Council of Europe, by referring to the findings and activities of the Council of Europe's monitoring and control mechanisms and of the Council of Europe Commissioner for Human Rights; and (c) the Organisation for Security and Cooperation in Europe (OSCE), the United Nations and other international organisations. 3. The Agency may enter into contractual relations, in particular subcontracting arrangements, with other organisations, in order to accomplish any tasks which it may entrust to them. The Agency may also award grants to promote appropriate cooperation and joint ventures, in particular to national and international organisations as referred to in Articles 8 and 9. Article 7 Relations with relevant Community bodies, offices and agencies The Agency shall ensure appropriate coordination with relevant Community bodies, offices and agencies. The terms of cooperation shall be laid down in memoranda of understanding where appropriate. Article 8 Cooperation with organisations at Member State and international level 1. In order to ensure close cooperation with Member States, each Member State shall nominate a government official as a National Liaison Officer, who shall be the main contact point for the Agency in the Member State. The National Liaison Officers may, inter alia, submit opinions on the draft Annual Work Programme to the Director prior to its submission to the Management Board. The Agency shall communicate to the National Liaison Officers all documents drawn up in accordance with Article 4(1)(a), (b), (c), (d), (e), (f), (g) and (h). 2. To help it carry out its tasks, the Agency shall cooperate with: (a) governmental organisations and public bodies competent in the field of fundamental rights in the Member States, including national human rights institutions; and (b) the Organisation for Security and Cooperation in Europe (OSCE), especially the Office for Democratic Institutions and Human Rights (ODIHR), the United Nations and other international organisations. 3. The administrative arrangements for cooperation pursuant to paragraph 2 shall comply with Community law and shall be adopted by the Management Board on the basis of the draft submitted by the Director after the Commission has delivered an opinion. Where the Commission expresses its disagreement with these arrangements the Management Board shall re-examine and adopt them, with amendments where necessary, by a two-thirds majority of all members. Article 9 Cooperation with the Council of Europe In order to avoid duplication and in order to ensure complementarity and added value, the Agency shall coordinate its activities with those of the Council of Europe, particularly with regard to its Annual Work Programme pursuant to Article 12(6)(a) and cooperation with civil society in accordance with Article 10. To that end, the Community shall, in accordance with the procedure provided for in Article 300 of the Treaty, enter into an agreement with the Council of Europe for the purpose of establishing close cooperation between the latter and the Agency. This agreement shall include the appointment of an independent person by the Council of Europe, to sit on the Agency's Management Board and on its Executive Board, in accordance with Articles 12 and 13. Article 10 Cooperation with civil society; Fundamental Rights Platform 1. The Agency shall closely cooperate with non-governmental organisations and with institutions of civil society, active in the field of fundamental rights including the combating of racism and xenophobia at national, European or international level. To that end, the Agency shall establish a cooperation network (Fundamental Rights Platform), composed of non-governmental organisations dealing with human rights, trade unions and employer's organisations, relevant social and professional organisations, churches, religious, philosophical and non-confessional organisations, universities and other qualified experts of European and international bodies and organisations. 2. The Fundamental Rights Platform shall constitute a mechanism for the exchange of information and pooling of knowledge. It shall ensure close cooperation between the Agency and relevant stakeholders. 3. The Fundamental Rights Platform shall be open to all interested and qualified stakeholders in accordance with paragraph 1. The Agency may address the members of the Fundamental Rights Platform in accordance with specific needs related to areas identified as a priority for the Agency's work. 4. The Agency shall call upon the Fundamental Rights Platform in particular, to: (a) make suggestions to the Management Board on the Annual Work Programme to be adopted pursuant to Article 12(6)(a); (b) give feedback and suggest follow-up to the Management Board on the annual report provided for in Article 4(1)(e); and (c) communicate outcomes and recommendations of conferences, seminars and meetings relevant to the work of the Agency to the Director and the Scientific Committee. 5. The Fundamental Rights Platform shall be coordinated under the authority of the Director. CHAPTER 3 ORGANISATION Article 11 Bodies of the Agency The Agency shall comprise: (a) a Management Board; (b) an Executive Board; (c) a Scientific Committee; and (d) a Director. Article 12 Management Board 1. The Management Board shall be composed of persons with appropriate experience in the management of public or private sector organisations and, in addition, knowledge in the field of fundamental rights, as follows: (a) one independent person appointed by each Member State, having high level responsibilities in an independent national human rights institution or other public or private sector organisation; (b) one independent person appointed by the Council of Europe; and (c) two representatives of the Commission. 2. Each member of the Management Board may be represented by an alternate member meeting the above requirements and appointed by the same procedure. The list of the members and alternate members of the Board shall be made public and shall be updated by the Agency on its web site. 3. The term of office of the members and alternate members of the Management Board shall be five years. It shall not be renewable. 4. Apart from normal replacement or death, the term of office of the member or the alternate member shall end only when he or she resigns. However, where a member or an alternate member no longer meets the criteria of independence, he or she shall forthwith inform the Commission and the Director of the Agency. The party concerned shall appoint a new member or a new alternate member for the remaining term of office. The party concerned shall also appoint a new member or a new alternate member for the remaining term of office, if the Management Board has established, based on a proposal of one third of its members or of the Commission, that the respective member or alternate member no longer meets the criteria of independence. Where the remaining term of office is less than two years, the mandate of the new member or alternate member may be extended for a full term of five years. 5. The Management Board shall elect its Chairperson and Vice-Chairperson and the other two members of the Executive Board referred to in Article 13(1) from its members appointed pursuant to paragraph 1(a) to serve for a two-and-a-half year term, which may be renewed once. 6. The Management Board shall ensure that the Agency performs the tasks entrusted to it. It shall be the Agency's planning and monitoring body. In particular, it shall: (a) adopt the Agency's Annual Work Programme in accordance with the Multiannual Framework, on the basis of the draft submitted by the Agency's Director after the Commission and the Scientific Committee have delivered an opinion. The Annual Work Programme shall be in accordance with the available financial and human resources and shall take into account the research and statistical work of the Community. The Annual Work Programme shall be transmitted to the European Parliament, the Council and the Commission; (b) adopt the annual reports referred to in Article 4(1)(e) and (g), comparing in the latter one, in particular, the results achieved with the objectives of the annual work programme; without prejudice to Article 14(5), the Scientific Committee shall be consulted before adoption of the report referred to in Article 4(1)(e); the reports shall be transmitted not later than 15 June to the European Parliament, the Council, the Commission, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions; (c) appoint and, if necessary, dismiss the Agency's Director; (d) adopt the Agency's annual draft and final budgets; (e) exercise the powers laid down in Article 24(2) in respect of the Director and disciplinary authority over the Director; (f) draw up an annual estimate of expenditure and revenue for the Agency and send it to the Commission, in accordance with Article 20(5); (g) adopt the Agency's rules of procedure on the basis of the draft submitted by the Director after the Commission, the Scientific Committee and the person mentioned in paragraph 1(b) have delivered an opinion; (h) adopt the financial rules applicable to the Agency on the basis of the draft submitted by the Director after the Commission has delivered an opinion, in accordance with Article 21(11); (i) adopt the necessary measures to implement the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, in accordance with Article 24(3); (j) adopt the arrangements on transparency and access to documents in accordance with Article 17(2); (k) appoint and revoke the members of the Scientific Committee in accordance with Article 14(1) and (3); and (l) establish that a member or an alternate member of the Management Board no longer meets the criteria of independence, in accordance with paragraph 4. 7. The Management Board may delegate its responsibilities to the Executive Board except for matters referred to in points (a), (b), (c), (d), (e), (g), (h), (k) and (l) of paragraph 6. 8. Decisions by the Management Board shall be taken by a simple majority of the votes cast, except as regards the decisions referred to in paragraph 5 and points (a), (b), (c), (d), (e), (g), (k) and (l) of paragraph 6, where a two-thirds majority of all members shall be required, and as regards the decisions referred to in Article 25(2), where the Management Board shall act by unanimity. Each member of the Management Board, or in his or her absence his or her alternate, shall have one vote. The Chairperson shall have the casting vote. The person appointed by the Council of Europe may vote on decisions referred to in points (a), (b) and (k) of paragraph 6. 9. The Chairperson shall convene the Board twice a year, without prejudice to extraordinary meetings. The Chairperson shall convene extraordinary meetings on his or her own initiative or at the request of at least one third of the members of the Management Board. 10. The Chairperson or Vice-Chairperson of the Scientific Committee and the Director of the European Institute for Gender Equality may attend meetings of the Management Board as observers. The Directors of other relevant Community agencies and Union bodies as well as of other international bodies mentioned in Articles 8 and 9 may also attend as observers when invited by the Executive Board. Article 13 Executive Board 1. The Management Board shall be assisted by an Executive Board. The Executive Board shall be made up of the Chairperson and the Vice-Chairperson of the Management Board, two other members of the Management Board elected by the Management Board in accordance with Article 12(5) and one of the representatives of the Commission in the Management Board. The person appointed by the Council of Europe in the Management Board may participate in the meetings of the Executive Board. 2. The Executive Board shall be convened by the Chairperson whenever necessary to prepare the decisions of the Management Board and to assist and advise the Director. It shall adopt its decisions by simple majority. 3. The Director shall take part in the meetings of the Executive Board, without voting rights. Article 14 Scientific Committee 1. The Scientific Committee shall be composed of eleven independent persons, highly qualified in the field of fundamental rights. The Management Board shall appoint the members following a transparent call for applications and selection procedure after having consulted the competent committee of the European Parliament. The Management Board shall ensure even geographical representation. The members of the Management Board shall not be members of the Scientific Committee. The rules of procedure referred to in Article 12(6)(g) shall lay down the detailed conditions governing the appointment of the Scientific Committee. 2. The term of office of the members of the Scientific Committee shall be five years. It shall not be renewable. 3. The members of the Scientific Committee shall be independent. They may be replaced only at their own request, or in the event of their being permanently prevented from fulfilling their duties. However, where a member no longer meets the criteria of independence, he or she shall forthwith inform the Commission and the Director of the Agency. Alternatively the Management Board may declare, on a proposal of one third of its members or of the Commission, a lack of independence and revoke the person concerned. The Management Board shall appoint a new member for the remaining term of office in accordance with the procedure for ordinary members. Where the remaining term of office is less than two years, the mandate of the new member may be extended for a full term of five years. The list of members of the Scientific Committee shall be made public and shall be updated by the Agency on its web site. 4. The Scientific Committee shall elect its Chairperson and Vice-Chairperson for a term of office of one year. 5. The Scientific Committee shall be the guarantor of the scientific quality of the Agency's work, guiding the work to that effect. For that purpose, the Director shall involve the Scientific Committee as early as appropriate in the preparation of all documents drawn up in accordance with Article 4(1) (a), (b), (c), (d), (e), (f), and (h). 6. The Scientific Committee shall pronounce itself by two thirds majority. It shall be convened by its Chairperson four times per year. If necessary, the Chairperson shall launch a written procedure or shall convene extraordinary meetings on his or her own initiative or at the request of at least four members of the Scientific Committee. Article 15 Director 1. The Agency shall be headed by a Director appointed by the Management Board in accordance with a cooperation (concertation) procedure provided for in paragraph 2. The Director shall be appointed on the basis of his or her personal merit, experience in the field of fundamental rights and administrative and management skills. 2. This cooperation procedure shall be as follows: (a) on the basis of a list drawn up by the Commission after a call for candidates and a transparent selection procedure, applicants will be asked before an appointment is made to address the Council and the competent European Parliament Committee and to reply to questions; (b) the European Parliament and the Council of the European Union will then give their opinions and state their orders of preference; (c) the Management Board will appoint the Director taking these opinions into account. 3. The Director's term of office shall be five years. In the course of the nine months preceding the end of this period, the Commission shall undertake an evaluation. In this evaluation, the Commission shall assess in particular: (a) the performance of the Director; and (b) the Agency's duties and requirements in the coming years. The Management Board, acting on a proposal from the Commission, taking account of the evaluation report, and only in those cases where it can be justified by the duties and the requirements of the Agency, may extend the term of office of the Director once for not more than three years. The Management Board shall inform the European Parliament and the Council about its intention to extend the Director's mandate. Within a delay of one month before the Management Board formally takes its decision to extend this mandate, the Director may be asked to make a declaration before the competent committee of the European Parliament and to answer questions from its members. If the term of office is not extended, the Director shall remain in office until the appointment of his/her successor. 4. The Director shall be responsible for: (a) performance of the tasks referred to in Article 4 and in particular the preparation and publication of the documents drawn up in accordance with Article 4(1) (a), (b), (c), (d), (e), (f), (g) and (h) in cooperation with the Scientific Committee; (b) preparation and implementation of the Agency's Annual Work Programme; (c) all staff matters, and in particular the exercise in respect of staff of the powers laid down in Article 24(2); (d) matters of day-to-day administration; (e) implementation of the Agency's budget, in accordance with Article 21; (f) implementation of effective monitoring and evaluation procedures relating to the performance of the Agency against its objectives according to professionally recognised standards. The Director shall report annually to the Management Board on the results of the monitoring system; (g) cooperation with National Liaison Officers; and (h) cooperation with civil society, including coordination of the Fundamental Rights Platform in accordance with Article 10. 5. The Director shall perform his/her tasks independently. He or she shall be accountable for the management of his/her activities to the Management Board and shall participate in its meetings without voting rights. 6. The Director may be called upon at any time by the European Parliament or by the Council to attend a hearing on any matter linked to the Agency's activities. 7. The Director may be dismissed by the Management Board before his or her term has expired, on the basis of a proposal of a third of its members or of the Commission. CHAPTER 4 OPERATION Article 16 Independence and public interests 1. The Agency shall fulfil its tasks in complete independence. 2. The members and alternate members of the Management Board, the members of the Scientific Committee and the Director shall undertake to act in the public interest. For this purpose, they shall make a statement of interests indicating either the absence of any interests which might be considered prejudicial to their independence or any direct or indirect interests which might be considered prejudicial to their independence. The statement shall be made in writing when taking office and shall be revised if changes occur with regard to the interests. It shall be published by the Agency on its website. Article 17 Transparency and access to documents 1. The Agency shall develop good administrative practices in order to ensure the highest possible level of transparency concerning its activities. Regulation (EC) No 1049/2001 shall apply to documents held by the Agency. 2. The Management Board shall, within six months of the commencement of the Agency's operation, adopt specific rules for the practical implementation of paragraph 1. These shall include, inter alia, rules on: (a) openness of meetings; (b) publication of the work of the agency, including the work of the Scientific Committee; and (c) arrangements to implement Regulation (EC) No 1049/2001. 3. Where the Agency takes decisions under Article 8 of Regulation (EC) No 1049/2001, a complaint may be lodged with the Ombudsman or an action may be brought in the Court of Justice of the European Communities, as provided by Articles 195 and 230 of the Treaty respectively. Article 18 Data protection Regulation (EC) No 45/2001 shall apply to the Agency. Article 19 Review by the Ombudsman The operations of the Agency shall be subject to the supervision of the Ombudsman in accordance with the provisions of Article 195 of the Treaty. CHAPTER 5 FINANCIAL PROVISIONS Article 20 Drawing up of the budget 1. Estimates of all the revenue and expenditure of the Agency shall be prepared for each financial year, corresponding to the calendar year, and shall be shown in the budget of the Agency. 2. The revenue and expenditure shown in the budget of the Agency shall be in balance. 3. The revenue of the Agency shall, without prejudice to other resources, comprise a subsidy from the Community, entered in the general budget of the European Union (Commission section). This revenue may be complemented by: (a) payments received for services rendered in the framework of the implementation of tasks listed in Article 4; and (b) financial contributions from the organisations or countries referred to in Articles 8, 9 and 28. 4. The expenditure of the Agency shall include staff remuneration, administrative and infrastructure costs and operating expenses. 5. Each year the Management Board, on the basis of a draft drawn up by the Director, shall produce an estimate of revenue and expenditure for the Agency for the following financial year. This estimate, which shall include a draft establishment plan, shall be transmitted by the Management Board to the Commission by 31 March at the latest. 6. The estimate shall be transmitted by the Commission to the European Parliament and the Council (hereinafter the budgetary authority) together with the preliminary draft budget of the European Union. 7. On the basis of the estimate, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it considers necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 272 of the Treaty. 8. The budgetary authority shall authorise the appropriations for the subsidy to the Agency. The budgetary authority shall adopt the Agency's establishment plan. 9. The Agency's budget shall be adopted by the Management Board. It shall become final following the adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly. 10. The Management Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of the Agency's budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof. Where a branch of the budgetary authority has notified its intention to deliver an opinion, it shall forward its opinion to the Management Board within six weeks from the date of notification of the project. Article 21 Implementation of the budget 1. The Director shall implement the Agency's budget. 2. By 1 March at the latest following each financial year, the Agency's accounting officer shall communicate the provisional accounts to the Commission's accounting officer, together with a report on the budgetary and financial management for that financial year. The Commission's accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 128 of Council Regulation (EC, Euratom) No 1605/2002 (10) (the Financial Regulation). 3. Not later than 31 March following each financial year, the Commission's accounting officer shall transmit the Agency's provisional accounts to the Court of Auditors, together with a report on the budgetary and financial management for that financial year. The report on the budgetary and financial management for that financial year shall also be transmitted to the European Parliament and the Council. 4. On receipt of the Court of Auditors' observations on the Agency's provisional accounts, pursuant to Article 129 of the Financial Regulation, the Director shall draw up the Agency's final accounts under his own responsibility and forward them to the Management Board for an opinion. 5. The Management Board shall deliver an opinion on the Agency's final accounts. 6. The Director shall, not later than 1 July following each financial year, transmit the final accounts to the European Parliament, the Council, the Commission and the Court of Auditors, together with the Management Board's opinion. 7. The final accounts shall be published. 8. The Director shall send the Court of Auditors a reply to its observations not later than 30 September. He/she shall also send this reply to the Management Board. 9. The Director shall submit to the European Parliament, at the latter's request, any information required for the smooth application of the discharge procedure for the financial year in question, as laid down in Article 146(3) of the Financial Regulation. 10. The European Parliament, on a recommendation from the Council acting by a qualified majority, shall, before 30 April of year N + 2, give a discharge to the Director in respect of the implementation of the budget for year N. 11. The financial rules applicable to the Agency shall be adopted by the Management Board after the Commission has been consulted. They may not depart from Regulation (EC, Euratom) No 2343/2002, unless specifically required for the Agency's operation and with the Commission's prior consent. Article 22 Combating fraud 1. In order to combat fraud, corruption and other unlawful activities, the provisions of Regulation (EC) No 1073/1999 shall apply without restrictions to the Agency. 2. The Agency shall accede to the Inter-institutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF) (11) and shall issue, without delay, the appropriate provisions applicable to its entire staff. 3. The decisions concerning funding and the implementing agreements and instruments resulting from them shall explicitly stipulate that the Court of Auditors and OLAF may carry out, if necessary, on-the-spot checks on the recipients of the Agency's funding and the staff responsible for allocating it. CHAPTER 6 GENERAL PROVISIONS Article 23 Legal status and location 1. The Agency shall have legal personality. 2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. In particular it may acquire and dispose of movable and immovable property and may be a party to legal proceedings. 3. The Agency shall be represented by its Director. 4. The Agency shall legally succeed the European Monitoring Centre on Racism and Xenophobia. It shall assume all the legal rights and obligations, financial commitments or liabilities of the Centre. Employment contracts concluded by the Centre before the adoption of this Regulation shall be honoured. 5. The seat of the Agency shall be Vienna. Article 24 Staff 1. The Staff Regulations of officials of the European Communities, the Conditions of Employment of other servants of the European Communities and the rules adopted jointly by the European Community institutions for the purpose of applying these Staff Regulations and Conditions of Employment shall apply to the staff of the Agency and its Director. 2. In respect of its staff, the Agency shall exercise the powers conferred on the appointing authority by the Staff Regulations of officials of the European Communities and on the authority entitled to conclude contracts by the Conditions of Employment of other servants of the European Communities. 3. The Management Board shall, in agreement with the Commission, adopt the necessary implementing measures, in accordance with arrangements provided for in Article 110 of the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities. 4. The Management Board may adopt provisions to allow national experts from Member States to be employed on secondment at the Agency. Article 25 Language arrangements 1. The provisions of Regulation No 1 of 15 April 1958 shall apply to the Agency. 2. The Management Board shall decide on the internal language arrangements for the Agency. 3. The translation services required for the functioning of the Agency shall be provided by the Translation Centre for the Bodies of the European Union. Article 26 Privileges and immunities The Protocol on the Privileges and Immunities of the European Communities shall apply to the Agency. Article 27 Jurisdiction of the Court of Justice 1. The contractual liability of the Agency shall be governed by the law applicable to the contract in question. The Court of Justice shall have jurisdiction pursuant to an arbitration clause contained in a contract concluded by the Agency. 2. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by the Agency or its servants in the performance of their duties. The Court of Justice shall have jurisdiction in disputes relating to compensation for any such damage. 3. The Court of Justice shall have jurisdiction in actions brought against the Agency under the conditions provided for in Articles 230 and 232 of the Treaty. Article 28 Participation and scope in respect of candidate countries and countries with which a Stabilisation and Association Agreement has been concluded 1. The Agency shall be open to the participation of candidate countries as observers. 2. The participation and the respective modalities shall be determined by a decision of the relevant Association Council, taking into account the specific status of each country. The decision shall indicate in particular the nature, extent and manner in which these countries will participate in the Agency's work, within the framework set in Articles 4 and 5, including provisions relating to participation in initiatives undertaken by the Agency, to the financial contribution and to staff. The decision shall be in line with this Regulation and with the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities. The decision shall provide that the participating country may appoint an independent person fulfilling the qualifications for persons referred to in Article 12(1)(a) as observer to the Management Board without right to vote. Upon the decision of the Association Council the Agency may deal with fundamental rights issues within the scope of Article 3(1) in the respective country, to the extent necessary for the gradual alignment to Community law of the country concerned. 3. The Council, acting unanimously on a proposal by the Commission, may decide to invite a country with which a Stabilisation and Association Agreement has been concluded by the European Community to participate in the Agency as an observer. In that case, paragraph 2 shall apply accordingly. CHAPTER 7 FINAL PROVISIONS Article 29 Transitional arrangements 1. The term of office of the members of the Management Board of the European Monitoring Centre on Racism and Xenophobia (the Centre) shall terminate on 28 February 2007. 2. With regard to the appointment of the Management Board: (a) the Commission shall take the necessary measures without delay after the entry into force of this Regulation to ensure that the Management Board established in accordance with Article 12 starts its work in due course; (b) within four months from the date of entry into force of this Regulation the Member States shall notify the Commission of the names of the persons whom they have appointed as member and alternate member of the Management Board, in accordance with Article 12(1) and (2). After the expiry of this period, the Commission shall convene the Management Board, provided that at least 17 members have been appointed. In such a case and by way of derogation from Article 12(8), the decisions of the Management Board shall be taken by a two thirds majority of the votes of the appointed members. Once 23 members of the Management Board have been appointed, Article 12(8) shall apply; (c) in the first meeting of the Management Board, after all appointments have been completed, the Commission shall choose by lot 15 members of the Management Board, whose duties are to end, by way of derogation from Article 12(4), upon expiry of the first three years of their term of office. 3. The parties concerned shall start the procedure for appointing a Director of the Agency as provided for in Article 15(1) without delay after the entry into force of this Regulation. 4. Pending the establishment of the Management Board in accordance with paragraph 2(b) and Article 12(1) and (2), the Commission shall convene an interim Management Board consisting of the persons, currently appointed by the Member States, the Council of Europe and the Commission to the Management Board of the Centre on the basis of Article 8 of Regulation (EC) No 1035/97. The interim Management Board shall have the mandate to: (a) issue an opinion on a proposal from the Commission concerning the text of the call for candidates for the post of Director in accordance with Article 15(1) in order to start the selection procedure; (b) appoint, acting on a proposal from the Commission, an interim Director or extend the current term of the Director of the Centre for the shortest possible period, during the appointment procedure referred to in paragraph 3; (c) adopt the Agency's budget for the year 2007 in accordance with Article 20(9) and a draft budget for year 2008 in accordance with Article 20(5); and (d) adopt the annual report on the Centre's own activities for 2006, in accordance with Article 12(6)(b). 5. Until the first Multiannual Framework for the Agency has been adopted in accordance with Article 5(1), the Agency shall carry out its tasks in the thematic areas of the fight against racism, xenophobia and related intolerance referred to in Article 5(2)(b), without prejudice to the second sentence of Article 5(3). Article 30 Evaluations 1. The Agency shall regularly carry out ex ante and ex post evaluations of its activities when these necessitate significant expenditure. The Director shall notify the Management Board of the results of these evaluations. 2. The Agency shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures. 3. Not later than 31 December 2011, the Agency shall commission an independent external evaluation of its achievements during the first five years of operations on the basis of terms of reference issued by the Management Board in agreement with the Commission. This evaluation shall: (a) take into account the tasks of the Agency, the working practices and impact of the Agency on the protection and promotion of fundamental rights; (b) assess the possible need to modify the Agency's tasks, scope, areas of activity or structure; (c) include an analysis of the synergy effects and the financial implications of any modification of the tasks; and (d) take into account the views of the stakeholders at both Community and national levels. 4. The Management Board, in agreement with the Commission, shall determine the timing and scope of subsequent external evaluations, which shall be carried out periodically. Article 31 Review 1. The Management Board shall examine the conclusions of the evaluations referred to in Article 30(3) and (4) and issue to the Commission such recommendations as may be necessary regarding changes in the Agency, its working practices and the scope of its mission. The Commission shall transmit the evaluation reports and recommendations to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions and make them public. 2. After having assessed the evaluation report and recommendations, the Commission may submit any proposals for amendments to this Regulation which it considers necessary. Article 32 Commencement of the Agency’s operation The Agency shall become operational by 1 March 2007. Article 33 Repeal 1. Regulation (EC) No 1035/97 is hereby repealed with effect from 1 March 2007. 2. References to the repealed Regulation shall be construed as references to this Regulation. Article 34 Entry into force and application This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. It shall apply with effect from 1 March 2007. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 February 2007. For the Council The President W. SCHÄUBLE (1) OJ C 88, 11.4.2006, p. 37. (2) OJ C 364, 18.12.2000, p. 1. (3) OJ L 151, 10.6.1997, p. 1. Regulation as amended by Regulation (EC) No 1652/2003 (OJ L 245, 29.9.2003, p. 33). (4) OJ L 145, 31.5.2001, p. 43. (5) OJ L 8, 12.1.2001, p. 1. (6) OJ 17, 6.10.1958, p. 385/58. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1). (7) OJ L 314, 7.12.1994, p. 1. Regulation as last amended by Regulation (EC) No 1645/2003 (OJ L 245, 29.9.2003, p. 13). (8) OJ L 357, 31.12.2002, p. 72. (9) OJ L 136, 31.5.1999, p. 1. (10) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1). (11) OJ L 136, 31.5.1999, p. 15.

Summary: EU Agency for Fundamental Rights (FRA) EU Agency for Fundamental Rights (FRA) SUMMARY OF: Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights WHAT IS THE AIM OF THE REGULATION? It creates the EU Agency for Fundamental Rights (FRA), a dedicated, EU-level body which provides assistance and expertise relating to fundamental rights in the EU, and lays down its main tasks and objectives, functioning and internal governance. KEY POINTS The regulation defines FRA’s tasks as the following: supplying relevant, objective, reliable and comparable information and data to EU institutions and EU Member States on fundamental rights; developing methods and standards to improve the comparability, objectivity and reliability of data at EU level; carrying out, cooperating on or encouraging scientific research and surveys; formulating conclusions and opinions on specific thematic topics; issuing publications on specific fundamental rights topics; publishing an annual report on the issues covered by its remit, highlighting examples of best practice; designing a communication strategy and promoting dialogue with civil society to raise public awareness of fundamental rights and disseminate information about its work. FRA is not a standard-setting body and does not deal with individual complaints. 5-year activity plan FRA’s activities are based on a multiannual framework which identifies the specific issues on which it will work over a 5-year period, in line with the EU’s overall priorities. The current framework runs from 2018 to 2022. The thematic areas identified in the framework are: victims of crime and their access to justice; equality and discrimination based on any grounds, 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, or on the grounds of nationality; information society and, in particular, respect for private life and protection of personal data; judicial cooperation, except in criminal matters; migration, borders, asylum and the integration of refugees and migrants; racism, xenophobia and related intolerance; children’s rights; the integration and social inclusion of the Roma. Cooperation with other bodies FRA must maintain close links with: the EU institutions, Member States’ governments and civil society groups, such as the Fundamental Rights Platform, equality bodies (e.g. the EU Institute for Gender Equality or the UN coordinating committee for national human rights institutions), international organisations (Council of Europe, United Nations, Organisation for Security and Cooperation in Europe, candidate countries to the EU. FROM WHEN DOES THIS REGULATION APPLY? It has applied since 23 February 2007. BACKGROUND FRA replaced its predecessor body — the European Monitoring Centre on Racism and Xenophobia — in Vienna, taking over its work. For more information see: The European Fundamental Rights Agency’s Strategic Plan 2018–2022 (FRA) European Union Agency for Fundamental Rights (Europa). MAIN DOCUMENT Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ L 53, 22.2.2007, pp. 1–14). RELATED DOCUMENTS Council Decision (EU) 2017/2269 of 7 December 2017 establishing a Multiannual Framework for the European Union Agency for Fundamental Rights for 2018–2022 (OJ L 326, 9.12.2017, pp. 1–4). last update 05.10.2021


21.12.2004 EN Official Journal of the European Union L 373/37 COUNCIL DIRECTIVE 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community and in particular Article 13(1) thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament (1), Having regard to the Opinion of the European Economic and Social Committee (2), Having regard to the opinion of the Committee of the Regions (3), Whereas: (1) In accordance with Article 6 of the Treaty on European Union, the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States, and respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community law. (2) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. (3) While prohibiting discrimination, it is important to respect other fundamental rights and freedoms, including the protection of private and family life and transactions carried out in that context and the freedom of religion. (4) Equality between men and women is a fundamental principle of the European Union. Articles 21 and 23 of the Charter of Fundamental Rights of the European Union prohibit any discrimination on grounds of sex and require equality between men and women to be ensured in all areas. (5) Article 2 of the Treaty establishing the European Community provides that promoting such equality is one of the Community's essential tasks. Similarly, Article 3(2) of the Treaty requires the Community to aim to eliminate inequalities and to promote equality between men and women in all its activities. (6) The Commission announced its intention of proposing a directive on sex discrimination outside of the labour market in its Communication on the Social Policy Agenda. Such a proposal is fully consistent with Council Decision 2001/51/EC of 20 December 2000 establishing a Programme relating to the Community framework strategy on gender equality (2001-2005) (4) covering all Community policies and aimed at promoting equality for men and women by adjusting these policies and implementing practical measures to improve the situation of men and women in society. (7) At its meeting in Nice of 7 and 9 December 2000, the European Council called on the Commission to reinforce equality-related rights by adopting a proposal for a directive on promoting gender equality in areas other than employment and professional life. (8) The Community has adopted a range of legal instruments to prevent and combat sex discrimination in the labour market. These instruments have demonstrated the value of legislation in the fight against discrimination. (9) Discrimination based on sex, including harassment and sexual harassment, also takes place in areas outside of the labour market. Such discrimination can be equally damaging, acting as a barrier to the full and successful integration of men and women into economic and social life. (10) Problems are particularly apparent in the area of the access to and supply of goods and services. Discrimination based on sex, should therefore be prevented and eliminated in this area. As in the case of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin (5), this objective can be better achieved by means of Community legislation. (11) Such legislation should prohibit discrimination based on sex in the access to and supply of goods and services. Goods should be taken to be those within the meaning of the provisions of the Treaty establishing the European Community relating to the free movement of goods. Services should be taken to be those within the meaning of Article 50 of that Treaty. (12) To prevent discrimination based on sex, this Directive should apply to both direct discrimination and indirect discrimination. Direct discrimination occurs only when one person is treated less favourably, on grounds of sex, than another person in a comparable situation. Accordingly, for example, differences between men and women in the provision of healthcare services, which result from the physical differences between men and women, do not relate to comparable situations and therefore, do not constitute discrimination. (13) The prohibition of discrimination should apply to persons providing goods and services, which are available to the public and which are offered outside the area of private and family life and the transactions carried out in this context. It should not apply to the content of media or advertising nor to public or private education. (14) All individuals enjoy the freedom to contract, including the freedom to choose a contractual partner for a transaction. An individual who provides goods or services may have a number of subjective reasons for his or her choice of contractual partner. As long as the choice of partner is not based on that person's sex, this Directive should not prejudice the individual's freedom to choose a contractual partner. (15) There are already a number of existing legal instruments for the implementation of the principle of equal treatment between men and women in matters of employment and occupation. Therefore, this Directive should not apply in this field. The same reasoning applies to matters of self-employment insofar as they are covered by existing legal instruments. The Directive should apply only to insurance and pensions which are private, voluntary and separate from the employment relationship. (16) Differences in treatment may be accepted only if they are justified by a legitimate aim. A legitimate aim may, for example, be the protection of victims of sex-related violence (in cases such as the establishment of single-sex shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person's home), the promotion of gender equality or of the interests of men or women (for example single-sex voluntary bodies), the freedom of association (in cases of membership of single-sex private clubs), and the organisation of sporting activities (for example single-sex sports events). Any limitation should nevertheless be appropriate and necessary in accordance with the criteria derived from case law of the Court of Justice of the European Communities. (17) The principle of equal treatment in the access to goods and services does not require that facilities should always be provided to men and women on a shared basis, as long as they are not provided more favourably to members of one sex. (18) The use of actuarial factors related to sex is widespread in the provision of insurance and other related financial services. In order to ensure equal treatment between men and women, the use of sex as an actuarial factor should not result in differences in individuals' premiums and benefits. To avoid a sudden readjustment of the market, the implementation of this rule should apply only to new contracts concluded after the date of transposition of this Directive. (19) Certain categories of risks may vary between the sexes. In some cases, sex is one but not necessarily the only determining factor in the assessment of risks insured. For contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits, as long as they can ensure that underlying actuarial and statistical data on which the calculations are based, are reliable, regularly up-dated and available to the public. Exemptions are allowed only where national legislation has not already applied the unisex rule. Five years after transposition of this Directive, Member States should re-examine the justification for these exemptions, taking into account the most recent actuarial and statistical data and a report by the Commission three years after the date of transposition of this Directive. (20) Less favourable treatment of women for reasons of pregnancy and maternity should be considered a form of direct discrimination based on sex and therefore prohibited in insurance and related financial services. Costs related to risks of pregnancy and maternity should therefore not be attributed to the members of one sex only. (21) Persons who have been subject to discrimination based on sex should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations and other legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts. (22) The rules on the burden of proof should be adapted when there is a prima facie case of discrimination and for the principle of equal treatment to be applied effectively, the burden of proof should shift back to the defendant when evidence of such discrimination is brought. (23) The effective implementation of the principle of equal treatment requires adequate judicial protection against victimisation. (24) With a view to promoting the principle of equal treatment, Member States should encourage dialogue with relevant stakeholders, which have, in accordance with national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of sex in the area of access to and supply of goods and services. (25) Protection against discrimination based on sex should itself be strengthened by the existence of a body or bodies in each Member State, with competence to analyse the problems involved, to study possible solutions and to provide concrete assistance for the victims. The body or bodies may be the same as those with responsibility at national level for the defence of human rights or the safeguarding of individuals' rights, or the implementation of the principle of equal treatment. (26) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation, which already prevails in each Member State. (27) Member States should provide for effective, proportionate and dissuasive penalties in cases of breaches of the obligations under this Directive. (28) Since the objectives of this Directive, namely to ensure a common high level of protection against discrimination in all the Member States, cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (29) In accordance with paragraph 34 of the interinstitutional agreement on better law-making (6), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between the Directive and the transposition measures and to make them public, HAS ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Purpose The purpose of this Directive is to lay down a framework for combating discrimination based on sex in access to and supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women. Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (a) direct discrimination: where one person is treated less favourably, on grounds of sex, than another is, has been or would be treated in a comparable situation; (b) indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary; (c) harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment; (d) sexual harassment: where any form of unwanted physical, verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment. Article 3 Scope 1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons who provide goods and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context. 2. This Directive does not prejudice the individual's freedom to choose a contractual partner as long as an individual's choice of contractual partner is not based on that person's sex. 3. This Directive shall not apply to the content of media and advertising nor to education. 4. This Directive shall not apply to matters of employment and occupation. This Directive shall not apply to matters of self-employment, insofar as these matters are covered by other Community legislative acts. Article 4 Principle of equal treatment 1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that (a) there shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity; (b) there shall be no indirect discrimination based on sex. 2. This Directive shall be without prejudice to more favourable provisions concerning the protection of women as regards pregnancy and maternity. 3. Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. A person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person. 4. Instruction to direct or indirect discrimination on the grounds of sex shall be deemed to be discrimination within the meaning of this Directive. 5. This Directive shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Article 5 Actuarial factors 1. Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals' premiums and benefits. 2. Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission. 3. In any event, costs related to pregnancy and maternity shall not result in differences in individuals' premiums and benefits. Member States may defer implementation of the measures necessary to comply with this paragraph until two years after 21 December 2007 at the latest. In that case the Member States concerned shall immediately inform the Commission. Article 6 Positive action With a view to ensuring full equality in practice between men and women, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to sex. Article 7 Minimum requirements 1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment between men and women than those laid down in this Directive. 2. The implementation of this Directive shall in no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive. CHAPTER II REMEDIES AND ENFORCEMENT Article 8 Defence of rights 1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of the obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended. 2. Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States so determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered. The fixing of a prior upper limit shall not restrict such compensation or reparation. 3. Member States shall ensure that associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. 4. Paragraphs 1 and 3 shall be without prejudice to national rules on time limits for bringing actions relating to the principle of equal treatment. Article 9 Burden of proof 1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence, which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. 4. Paragraphs 1, 2 and 3 shall also apply to any proceedings brought in accordance with Article 8(3). 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or other competent authority to investigate the facts of the case. Article 10 Victimisation Member States shall introduce into their national legal systems such measures as are necessary to protect persons from any adverse treatment or adverse consequence as a reaction to a complaint or to legal proceedings aimed at enforcing compliance with the principle of equal treatment. Article 11 Dialogue with relevant stakeholders With a view to promoting the principle of equal treatment, Member States shall encourage dialogue with relevant stakeholders which have, in accordance with national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of sex in the area of access to and supply of goods and services. CHAPTER III BODIES FOR THE PROMOTION OF EQUAL TREATMENT Article 12 1. Member States shall designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds of sex. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights, or the implementation of the principle of equal treatment. 2. Member States shall ensure that the competencies of the bodies referred to in paragraph 1 include: (a) without prejudice to the rights of victims and of associations, organisations or other legal entities referred to in Article 8(3), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination; (b) conducting independent surveys concerning discrimination; (c) publishing independent reports and making recommendations on any issue relating to such discrimination. CHAPTER IV FINAL PROVISIONS Article 13 Compliance Member States shall take the necessary measures to ensure that the principle of equal treatment is respected in relation to the access to and supply of goods and services within the scope of this Directive, and in particular that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; (b) any contractual provisions, internal rules of undertakings, and rules governing profit-making or non-profit-making associations contrary to the principle of equal treatment are, or may be, declared null and void or are amended. Article 14 Penalties Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The penalties, which may comprise the payment of compensation to the victim, shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 21 December 2007 at the latest and shall notify it without delay of any subsequent amendment affecting them. Article 15 Dissemination of information Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of the persons concerned by all appropriate means throughout their territory. Article 16 Reports 1. Member States shall communicate all available information concerning the application of this Directive to the Commission, by 21 December 2009. and every five years thereafter. The Commission shall draw up a summary report, which shall include a review of the current practices of Member States in relation to Article 5 with regard to the use of sex as a factor in the calculation of premiums and benefits. It shall submit this report to the European Parliament and to the Council no later 21 December 2010. Where appropriate, the Commission shall accompany its report with proposals to modify the Directive. 2. The Commission's report shall take into account the viewpoints of relevant stakeholders. Article 17 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 21 December 2007 at the latest. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such publication of reference shall be laid down by the Member States. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 18 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Union. Article 19 Addressees This Directive is addressed to the Member States. Done at Brussels, 13 December 2004. For the Council The President B. R. BOT (1) Opinion delivered on 30 March 2004 (not yet published in the Official Journal). (2) OJ C 241, 28.9.2004, p. 44. (3) OJ C 121, 30.4.2004, p. 27. (4) OJ L 17, 19.1.2001, p. 22. (5) OJ L 180, 19.7.2000, p. 22. (6) OJ C 321, 31.12.2003, p. 1.

Summary: Principle of equal treatment of men and women outside the employment market Principle of equal treatment of men and women outside the employment market The directive aims to implement equal treatment of men and women with a view to extending the principle of equal treatment beyond the sphere of the employment market and professional life to other areas of everyday life. ACT Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services. SUMMARY WHAT IS THE AIM OF THIS DIRECTIVE? The directive establishes a framework for combatting all gender discrimination in access and supply of goods and services, in both the public and private sectors. The directive applies to goods and services offered to the public, regardless of the persons concerned (that is to say, whatever the personal circumstances of the service recipient) and which are offered outside of the private and family spheres. The term ‘services’ indicates services provided in exchange for remuneration. The directive does not apply to either the content of media or advertising, or education. KEY ASPECTS Ban on discrimination in the field of goods and services: in principle, the directive prohibits: any less favourable treatment of men or women by reason of their gender; any less favourable treatment of women due to pregnancy or maternity; harassment, sexual harassment or any incitement to discriminate with regard to the offer or supply of goods or services. Differential treatment can only be accepted if it is justified by a legitimate objective such as, for example protection of victims of sexual abuse (in the case of creating women’s refuges), freedom of association (in the context of membership of unisex private clubs) or organisation of unisex sporting activities. Any limitation must be appropriate and necessary. The principle of equal treatment does not preclude taking affirmative action to prevent or compensate for gender inequalities in the area of goods and services. The directive establishes only minimal requirements to allow EU countries to be able to maintain higher or more extensive levels of protection. Application to the field of insurance: the directive prohibits taking gender into consideration when calculating insurance premiums and benefits in insurance agreements signed after 21 December 2007. Nonetheless, the directive provided for the option for EU countries not to apply this prohibition in cases where gender was a determining factor in risk assessment and based on relevant actuarial and statistical data. However, the Court of Justice of the European Union, in its ruling on the Test-Achats case (C-236/09) declared invalid the derogation from the principle of equal treatment which allowed EU countries to differentiate between men and women with regard to insurance premiums and benefits, with effect from 21 December 2012. Henceforth, for all new agreements signed since this date, the principle of a unisex tariff applies to the insurance sector. In order to facilitate implementation of the Court’s ruling, the Commission adopted Guidelines on the application of the directive to the insurance sector. In any case, the costs associated with pregnancy and maternity must not lead to differences in terms of premiums and benefits. Bodies promoting equal treatment: each EU country charges one or several bodies with promoting and monitoring equal treatment of men and women at national level. These bodies are responsible for (i) offering victims independent assistance, (ii) carrying out independent studies, (iii) publishing independent reports and making recommendations. Defending victims’rights: the directive obligates EU countries to ensure that victims have access to a judicial and/or administrative procedure to safeguard their rights, and that victims can obtain the appropriate reparation or compensation. Associations, organisations and other legal persons with a legitimate interest are also able to engage in a judicial and/or administrative procedure to allow victims to safeguard their rights and to obtain reparation or compensation. When facts presented before a tribunal support the presumption of the existence of discrimination, it falls to the defendant to prove that there has been no infringement of the principle of equal treatment (rebuttal of the charge). Furthermore, EU countries must put in place sanctions in case of infringement of the principle of equal treatment. FROM WHEN DOES THE DIRECTIVE APPLY? The directive came into force on 21 December 2004 and it should have been transposed into EU country law by 21 December 2007 at the latest. CONTEXT Equality between men and women is a fundamental principle of the European Union, laid down in Articles 2 and 3 of the Treaty on European Union. Gender discrimination may constitute an obstacle to full and successful integration of men and women into economic and social life. KEY TERMINOLOGY Direct discrimination: circumstances in which a person is treated less favourably, by reason of their gender, than another person who, in a similar situation, is not, has not been or would not be. Indirect discrimination: circumstances in which an apparently neutral provision, criterion or practice is likely to lead to a specific disadvantage for persons of the opposite sex, unless this provision, criterion or practice is objectively justified by a legitimate objective and the means of realising this objective are appropriate and necessary. Harassment: circumstances in which unwanted conduct related to a person’s gender takes place, with the aim or effect of attacking the person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment: circumstances in which unwanted sexual conduct, expressed physically, verbally or non-verbally, takes place, with the aim or effect of attacking the person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. REFERENCES Act Entry into force Transposition in the Member States Official Journal Directive 2004/113/EC 21.12.2004 21.12.2007 OJ L 373, 21.12.2004, pp.37-43 last update 26.02.2015