Help us make the FRA website better for you!

Take part in a one-to-one session and help us improve the FRA website. It will take about 30 minutes of your time.

YES, I AM INTERESTED NO, I AM NOT INTERESTED

Sebra / Adobe Stock

Better legislation – Human rights impact assessments in lawmaking

This report examines how human rights impact assessments (HRIAs) are built into lawmaking across the EU and its Member States. It highlights that, although progress has been made, the use of HRIAs remains uneven and often superficial. In many EU countries, the EU Charter of Fundamental Rights is frequently overlooked. The report identifies insufficient consultation with external experts, limited stakeholder participation and a lack of evaluation once laws are in force. To address these gaps, it offers practical recommendations for more systematic, inclusive and evidence-based HRIAs that strengthen human rights protection and ensure better, more accountable legislation throughout the EU.

Hundreds of laws are adopted every year across the European Union (EU): in 2024, the EU alone adopted 146 regulations and directives [1]
 EUR-Lex, ‘Legal acts – statistics’, EUR-Lex website.
in the ordinary legislative procedure. By nature, every legislative project carries its risks. Whereas low-quality laws risk weakening high-quality laws [2]
 See already Charles-Louis De Secondat Montesquieu, The Spirit of the Laws, 1748.
, laws that negatively impact human rights come with an even more serious risk, namely, to further reduce trust in public institutions and weaken society and the state at large. This is why legislators need to assess the possible impact of laws before adopting them. But, as this report shows, ambition and practice diverge. The report examines the impact assessment of legislation from a human and fundamental rights perspective (on the terminology used, see Box Legal corner: Terminology below). It shows why and how legislators both at the EU and the national level must systematically ensure that legislation complies with human and fundamental rights standards and avoid negative impacts on these rights. Human and fundamental rights impact assessments (HRIAs), ex ante and ex post, are a very useful tool to minimise the risk of adopting legislation that violates human and fundamental rights law.

The report deals with three different areas, namely ex ante impact assessments, legal scrutiny and ex post evaluations. Regulatory impact assessments (RIAs) accompany legislative initiatives which typically analyse the economic, social or environmental impacts of the proposed solutions. RIAs can contribute to lowering the frequency of the modifications of the law and may to some extent bring stability in a volatile political environment [3]
 Brenner, D. and Fazekas, M., ‘Legislative effects of regulatory impact assessment: A comparative event history analysis of modifications of law in France, Italy, Hungary and the UK’, Working Paper Series: GTI-WP/2020:03, 2 June 2020.
. Whereas RIAs examine the costs and benefits as well as the risks and likely consequences of legislative proposals, legal scrutiny is a process more legal in nature, focused on legal compliance. Ex post evaluation of adopted legislation includes information about the human rights risks and the impacts that have materialised, the affected rights holders and the measures taken to mitigate the negative effect on human rights. Ex post evaluation should feed back into the legislative cycle, triggering amendments where needed and contributing to the ongoing HRIA process [4]
 OSCE/ODIHR, Guidelines on Democratic Lawmaking for Better Laws, Warsaw, 16 January 2024, p. 16. See also The World Bank Group, Human Rights Impact Assessments: A review of the literature, differences with other forms of assessments and relevance for development, Washington, February 2013, p. 30.
.

At the EU level, the current trend aims to simplify existing legislation across different policy areas, which can have benefits such as reducing burdens on economic operators and may also stimulate growth, innovation and competitiveness. However, as the European Ombudsman also underlined, such political priorities and other urgencies should not compromise the ‘essential elements of the Union’s rule making process, that is carrying out public consultations and impact assessments’ [5]
 Teresa Anjinho, ‘Upholding good governance in challenging times – The role of the ombudsman’, speech delivered on 15 October 2025.
.

HRIAs require time, knowledge and resources and can be particularly challenging in cases of political urgency, especially in cases of emergency. However, lawmakers are under a legal obligation to ensure that the adopted legislation respects, protects and fulfils human and fundamental rights, including national constitutions and international or European human rights treaties and, when transposing EU legislation, the Charter. A well-developed and evidence-based HRIA is very likely to identify any piece of draft legislation that unduly interferes with human and fundamental rights or has other adverse consequences on those rights. The legislator must balance various human rights and justify a limitation thereto. Where the legislator overlooks potential human rights impacts or does not justify interferences with those rights, there is a risk that the legislation may be annulled by the courts for violating human rights. In the landmark cases of Tele2 Sverige and Watson and Others [6]
 Judgment of the Court (Grand Chamber) of 21 December 2016, Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others, Joined Cases C-203/15 and C-698/15, ECLI identifier: ECLI:EU:C:2016:970.
, SpaceNet and Telekom Deutschland [7]
 Judgment of the Court (Grand Chamber) of 20 September 2022, Bundesrepublik Deutschland v SpaceNet AG and Telekom Deutschland GmbH, Joined Cases C-793/19 and C-794/19, ECLI identifier: ECLI:EU:C:2022:702.
and Ligue des droits humains [8]
 Judgment of the Court (Grand Chamber) of 21 June 2022, Ligue des droits humains ASBL v Conseil des ministres, C-817/19, ECLI identifier: ECLI:EU:C:2022:491.
, the Court of Justice of the European Union (CJEU) held that German, Swedish and Belgian legislation that imposed general and indiscriminate data retention in national law were incompatible with EU law, entailing serious interferences in the right to privacy and data protection under the Charter.

Not only national law but also EU legislation itself has been increasingly challenged before the CJEU for violating EU fundamental rights. The Family Reunification Directive, the Framework Decision on a European Arrest Warrant, the Audiovisual Media Services Directive, the Directive on Driving Licenses or the Biometric Passports Regulation are some examples in that regard [9]
 Judgment of the Court of Justice of 27 June 2006, Parliament v Council, C-540/03, ECLI:EU:C:2006:429; Judgment of the Court of Justice of 28 January 2021, Spetsializirana prokuratura (Letter of Rights), C-649/19, ECLI:EU:C:2021:75; Judgment of the Court of Justice of 22 January 2013, Sky Österreich, C283/11, ECLI:EU:C:2013:28; Judgment of the Court of Justice of 22 May 2014, Glatzel, C356/12,ECLI:EU:C:2014:350; Judgment of the Court of Justice of 21 March 2024, Landeshauptstadt Wiesbaden, C61/22, ECLI:EU:C:2024:251.
. In some cases, the CJEU declared EU legislation null and void as it had been in violation of the Charter. High-quality legislation that withstands political and legal scrutiny from the perspective of human rights must therefore comply with EU law. This is especially relevant in the context of the EU’s upcoming accession to the European Convention on Human Rights (ECHR), which will submit the EU and its legislation to further external judicial scrutiny by the European Court of Human Rights (ECtHR).

Systematically conducted legal scrutiny and HRIAs are thus a tool to avoid the political consequences, major financial costs and any other knock-on effects that may arise if European or national courts find legislation to be in violation of human rights. Rather than delegating in practice their responsibility for checking the human rights compatibility of legislative proposals to independent courts, lawmakers must abide by their fundamental rights obligations in all their activities.

HRIA should begin at the earliest policy development stage, not just once a draft exists. Starting HRIA during policy formation allows decision-makers to integrate rights considerations before key choices are locked in, ensuring more effective prevention of violations and higher quality laws [10]
 OSCE/ODHIR, Guidelines on Democratic Lawmaking for Better Laws, Warsaw, 16 January 2024, principle 3.
.

The Commission has put the assessment of fundamental rights impacts of legislative proposals on its agenda for more than a decade. When adopting the first strategy on the application of the Charter in 2010 [11]
 European Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010) 573 final, Brussels, 19 October 2010.
, the Commission presented its ‘clear objective’ as ‘the Union must set an example to ensure that the fundamental rights provided for in the Charter become reality’ also ‘by strengthening the assessment of the impact of its proposals on fundamental rights’. In the 2020 revision of the Charter strategy [12]
 European Commission, Strategy to strengthen the application of the Charter of Fundamental Rights in the EU, COM/2020/711 final, Brussels, 2 December 2020.
the Commission reaffirmed that ‘Charter compliance will remain a central concern for the Commission throughout the decision-making process’. One of the key strands of the 2020 strategy focuses on fostering the use of the Charter as a ‘compass for EU institutions’. In this context, the European Commission has been providing training to its staff; it has been developing a guide on fundamental rights impact assessment and online training for EU and national civil servants. Moreover, the European Commission will make additional training tools and guidance available at the beginning of 2026 [13] Information provided by the European Commission.
.

In addition, the Commission calls on the Member States to equally carry out fundamental rights impact assessments and legal scrutiny procedures to ensure that initiatives implementing EU law comply with the Charter. From its side, the Council of the European Union encouraged the Member States to ‘reflect on the obligation to ensure consistency with the Charter in their national rules on legal scrutiny and impact assessments of legislation that fall within the scope of Union law’ [14]
 Council of the European Union: General Secretariat of the Council, ‘Council conclusions on strengthening the application of the Charter of Fundamental Rights in the European Union’, 6795/21 JAI 233 FREMP 38, 8 March 2021, paragraph 11.
. The European Parliament has also recently encouraged national governments and parliaments to publish (publicly accessible) impact assessments and consultation findings for every major legislative proposal and to refrain from excessively using accelerated procedures that bypass stakeholder and civil society consultation [15]
 European Parliament: Resolution of 18 June 2025 on the Commission’s 2024 Rule of Law Report (2024/2078(INI)), paragraphs 81 and 82.
.

This report deals with Member States and the agency’s three observer countries (Albania, North Macedonia and Serbia) which must under the accession process align their national legislation with EU law, including the Charter. The report addresses policymakers, civil servants, government officials, parliaments, national human rights institutions, equality bodies, ombuds institutions and other national authorities potentially involved in impact assessments or legal scrutiny of legislative proposals that may unduly impact the exercise of human rights, both prior and after adoption.

While the report does not seek to provide a comparative overview of the overall situation in the EU, it covers both the EU and the national level, and is based on a multiplicity of sources, including desk research, consultations with the European Parliamentary Research Service (EPRS), the Commission, the Venice Commission, the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (ODIHR), the agency’s national liaison officers, national human rights institutions, equality bodies and ombuds institutions. The agency further organised an expert meeting and conducted fieldwork research in 10 Member States (Croatia, Cyprus, Denmark, Germany, Greece, Estonia, Finland, France, Netherlands and Slovenia) and one candidate country participating as an observer in FRA’s work (North Macedonia). These countries were selected based on the information received from the national liaison officers on the promising practices of impact assessments and evaluation procedures in their countries.

The report is a first step towards examining the issues connected to human and fundamental rights considerations in the impacts of upcoming and adopted legislation and presents relevant promising practices. The aim of this report is to open the discussion with the competent national authorities, EU institutions and other stakeholders involved in the legislative process to exchange experiences and identify the best drivers and safeguards for more human-rights-compliant laws. It starts by presenting the relevance of assessing legislation in terms of its impact on human rights, before highlighting the relevance of expert input to ensure better lawmaking, and then outlining promising practices and issues related to ex ante and ex post human rights impact assessments and the legal scrutiny of legislation at the EU and national levels. Finally, the report proposes ways forward both for the EU and the Member States to better respect and protect human rights in the legislative process.