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Lawmaking and human rights are linked to each other in different ways. Firstly, Member States have a positive obligation under the ECHR to adopt legislative measures to ensure effective protection of human rights [16]
ECtHR, 6 April 1979, The Sunday Times v. The United Kingdom,CE:ECHR:1979:0426JUD000653874, 6 April 1979, §§ 47 to 49.
. Secondly, the legislator must follow a particular approach in lawmaking. For instance, the European Court of Human Rights (ECtHR) requires the law to be formulated with sufficient precision to enable the addressees to envisage its effects [17]
See for example, ECtHR, 22 March 2001, Streletz, Kessler and Krenz v. Germany, CE:ECHR:2001:0322JUD003404496, § 50 and ECtHR, 16 June 2015, Delfi v. Estonia, CE:ECHR:2015:0616JUD006456909, §§ 120 to 122.
. The ECtHR further requires entire sets of laws to be coherent [18]
ECtHR, 16 December 1992, De Geouffre de la Pradelle v. France, CE:ECHR:1992:1216JUD001296487, §§ 27 to 35.
. Moreover, the principle of proportionality, which is also a general principle of EU law, must be respected when implementing measures through EU law. The CJEU maintained that these measures, ‘should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it’ [19]
Judgment of the Court of Justice of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C-491/01, ECLI:EU:C:2002:741, paragraph 122; Judgment of the Court of Justice of 7 March 2024, Fallimento Esperia and GSE, C-558/22, ECLI:EU:C:2024:209, paragraph 56.
. Furthermore, the proportionality assessment must try to reconcile and strike a fair balance between different fundamental rights [20]
Judgment of the Court of Justice of 19 December 2019, Deutsche Umwelthilfe, C-752/18, ECLI:EU:C:2019:1114, paragraph 50.
. Both the ECtHR and the CJEU require national legislators to lay down procedures to enable judicial control [21]
See, for example, ECtHR, 17 January 2012, Stanev v. Bulgaria, CE:ECHR:2012:0117JUD003676006, §§ 172 to 178 and ECtHR,23 June 2016, Baka v. Hungary, CE:ECHR:2016:0623JUD002026112, § 121. Judgment of the Court of Justice of 8 May 2024, Asociaţia ‘Forumul Judecătorilor din România’ (Associations of Judges), C-53/23, ECLI:EU:C:2024:388, paragraphs 35 to 37 and Judgment of the Court of Justice of 8 April 2014, Digital Rights Ireland and others, Joined Cases C-293/12 and C-594/12,ECLI:EU:C:2014:238, paragraphs 54 to 55.
. Both courts also require lawmakers to show on which evidence base they have balanced rights and interests [22]
Judgment of the Court of Justice of 9 November 2010, Volker und Markus Schecke and Eifert, Joined Cases C-92/09 and C-93/09,ECLI:EU:C:2010:662, paragraph 83; ECtHR, 14 February 2006, Lecarpentier and et autre c. France, CE:ECHR:2006:0214JUD006784701, §§ 47 to 48 and ECtHR, 22 March 2012, Konstantin Markin v. RussiaCE:ECHR:2012:0322JUD003007806, § 101.
. Against this background, scholars argued that there is a right to rational and evidence-based lawmaking [23]
Popelier, P., ‘A fundamental right to rational law making? An exploration of the European Court of Human Rights’ case law’, in: Rozenfelds, J. et al. (eds), The Quality of Legal Acts and its Importance in Contemporary Legal Space, University of Latvia Press, Rīga, 2012, pp. 27–34, p. 33.
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Lawmakers must ensure that adopted legislation does not unduly restrict any human right. This requires assessing potential impacts that a legislative proposal might have on human rights and to check any legislative proposal against human rights standards (legal scrutiny), as highlighted by several international organisations, such as the United Nations (UN) [24]
Human Rights Council, ‘Guiding principles on human rights impact assessments of trade and investment agreements’, A/HRC/19/59/Add.5, 19 December 2011; ‘Guiding principles on human rights impact assessments of economic reforms – Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights’, A/HRC/40/57, 19 December 2018.
, the Council of Europe Venice Commission [25]
Council of Europe: Venice Commission, ‘Rule of Law Checklist’, CDL-AD(2016)007-e, 11–12 March 2016.
, the Organisation for Security and Co-operation in Europe (OSCE) [26]
OSCE/ODIHR, Guidelines on Democratic Lawmaking for Better Laws, Warsaw, 16 January 2024; Making laws work for women and men: A practical guide to gender-sensitive legislation, Warsaw, 4 July 2017.
and others [27]
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, pp. xii and xiii; Sheinin, M. and Molbaek-Steensig, H., ‘Pandemics and Human Rights: Three perspectives on human rights assessment of strategies against Covid-19’, EUI Department of Law Research Paper No 1, 25 March 2021, pp. 3–4.
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A HRIA focuses on human rights standards, which offer a specific basis for assessing actions in light of a State’s international obligations [28]
Human Rights Council, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’, A/HRC/25/50/Add.1, paragraph 36, 27 March 2014.
. HRIAs go beyond what traditional social impact assessments require. In HRIAs, there is a strong legal and consequential accountability element arising from States’ obligation to respect, protect and fulfil human rights [29]
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. 7.
. There is a focus on prevention, mitigation and redress measures [30]
Human Rights Council, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Cephas Lumina’, A/HRC/37/54, 20 December 2017, paragraph 41.
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Member States and candidate countries participating as observers in the agency’s work are parties to several international human rights treaties. The EU is also a party to the Convention on the Rights of Persons with Disabilities (CRPD) [31]
United Nations (UN), Convention on the Rights of Persons with Disabilities, 12 December 2006.
, and the Council of Europe’s Istanbul Convention [32]
Council of Europe, Convention on preventing and combating violence against women and domestic violence, 11 May 2011.
. Under those international human rights treaties, the parties have the obligation to protect, respect and fulfil human rights. The EU and its Member States are also parties to the Aarhus Convention [33]
United Nations Economic Commission for Europe (UNECE), Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998.
which links environmental rights to human rights.
The EU and its Member States must comply with the Charter, which contains 50 rights and principles. The Charter is part of EU primary law (Article 6(1) of the Treaty on European Union (TEU)) which puts it above regulations, directives and national law. Certain Charter provisions have direct effect and so they can be invoked directly by individuals against the state [34]
Judgment of the Court of Justice of 22 December 2010, DEB, C-279/09, ECLI:EU:C:2010:811.
or against other private parties [35]
Judgment of the Court of Justice of 19 January 2010, Kücükdeveci, C-555/07, ECLI:EU:C:2010:21.
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The Charter is always binding upon EU institutions, bodies and agencies and upon the Member States when they are implementing EU law (Article 51(1) of the Charter). Member States implement EU law when they act within its scope [36]
Judgment of the Court of Justice of 26 February 2013, Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105, paragraph 21.
. Figures concerning the proportion of national laws based on EU laws vary widely throughout the Member States (ranging from less than 10 % to over 80 %, depending on a variety of factors, including federal structure, legal culture, length of EU membership and so forth) [37]
Miller, V., ‘How much legislation comes from Europe?’, Research paper 10/62, UK Parliament: House of Commons Library, 13 October 2010, p. 5.
. There is however a common understanding that a considerable share of national lawmaking does fall within the scope of EU law and therefore must fully respect the Charter.
Failing to fulfil an obligation under EU law may lead the Commission to initiate infringement proceedings against a Member State before the CJEU (Article 258 of the Treaty on the Functioning of the EU (TFEU)). Furthermore, Member States may be liable for damages before national courts following a breach of EU law [38]
Judgment of the Court of Justice of 19 November 1991, Francovich and others, Joined Cases C-6/90 and C-9/90, ECLI:EU:C:1991:428, paragraph 45.
. It is therefore key that national lawmakers not only check proposals falling within the scope of EU law against international human rights law and their constitutional rights catalogues, but also against the Charter, as to a certain degree the Charter goes beyond national and international human rights law, including the ECHR. In their national level impact assessments, national legislators should reassess the fundamental rights impacts identified by EU legislators.
The UN Human Rights Council has stressed the importance for States Parties to conduct HRIAs, avoid negative consequences for rights holders and ensure consistency and coherence between different laws [39]
Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter – Guiding principles for human rights impact assessments of trade and investment agreements’, A/HRC/19/59/Add.5, 19 December 2011, paragraph 1.1; ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’, A/HRC/34/57, 27 December 2016, paragraphs 58–59.
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Evaluation of legislation is key to measuring the real-life impact of legislation. Ex post assessment should guide the amendments of laws, which should not be made based on assumptions but on evidence. The European Commission’s better regulation toolbox [40]
Commission, ‘Better regulation toolbox’, Commission website.
presents information on how to collect, use and analyse evidence which will inform policymaking (Tool no 4), for example. Furthermore, the human rights indicator model of the Office of the High Commissioner for Human Rights [41]
UN, ‘Human rights indicators’, UN website.
includes structure, process and outcome indicators that could also be used in policymaking. These indicators correspond to a country’s commitments, efforts and results, measuring the acceptance, intent or commitment of a country to meet the human rights obligations derived from an international treaty to which it is a party.
HRIA is especially important when passing legislation related to crises, when countries are inclined to restrict human rights more and use urgent or accelerated legislative procedures to do so [42]
Human Rights Council, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’, A/HRC/34/57, 27 December 2016.
. It is also critical when passing wide-range reforms, such as constitutional reforms, and legislation introducing major changes to the functioning of the democratic institutions. In such cases, impact assessment and public consultation, critical elements of the legislative process, are often bypassed. For example, the agency found evidence of Member States’ legislation or measures which represented disproportionate or unjustified restrictions of fundamental rights during the COVID-19 pandemic [43]
FRA, Coronavirus pandemic in the EU – Fundamental rights implications – Bulletin #4 – 1 June–30 June 2020, Publications Office of the European Union, Luxembourg, July 2020, paragraphs 12, 16 and 17 and Coronavirus pandemic in the EU – Fundamental Rights Implications: Focus on social rights – Bulletin #6 – 1 September–31 October 2020, Publications Office of the European Union, Luxembourg, October 2020, paragraph 16.
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Lawmaking procedures must not only respect human rights but must also comply with democratic principles and the rule of law. The lawmaking process as an extension of the democratic process must include public participation, which is inclusive, informed and transparent [44]
Council of Europe: Venice Commission, ‘Annual Report of Activities 2022’, CDL-AD(2023)014-e, 14 March 2023, p. 15.
. This requires effective and meaningful consultation with a wide range of stakeholders, including human rights experts, national human rights institutions, civil society and stakeholders who might be impacted by the legislation, especially groups at risk of discrimination [45]
Human Rights Council, ‘Guiding principles on human rights impact assessment of economic reform: Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights’, A/HRC/40/57, 19 December 2018, paragraph 7.3; ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter – Guiding principles for human rights impact assessments of trade and investment agreements’, 19 December 2011, A/HRC/19/59/Add.5, paragraphs 4.5 and 5.
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The right to participate in public affairs is guaranteed by several international human rights instruments. Article 25 of the International Covenant on Civil and Political Rights [46]
UN, International Covenant on Civil and Political Rights, 16 December 1966.
is phrased in rather general terms: ‘take part in the conduct of public affairs, directly or through freely chosen representatives’, and it does not mention the policy/legislative process. Other conventions refer more specifically to the right to ‘participate in the formulation of government policy and the implementation thereof’ (e.g. Article 7(b) of the Convention on the Elimination of All Forms of Discrimination Against Women [47]
UN, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979.
, Article 5 of the International Convention on Elimination of All Forms of Racial Discrimination [48]
UN, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965.
, Article 12 of the Convention on the Rights of the Child [49]
UN, Convention on the Rights of the Child, 20 November 1989.
, Article 29 of the CRPD and Article 8 of the Aarhus Convention). The term ‘public affairs’ used in Article 25 of the International Covenant on Civil and Political Rights is a broad concept, covering ‘all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels’ [50]
UN Human Rights Committee, ‘General comment adopted by the Human Rights Committee under article 40, paragraph 4, of the International Covenant on Civil and Political Rights’, CPR/C/21/Rev.1/Add.7, 27 August 1996, paragraphs 1 and 5.
. However, the exercise of the right under Article 25 should be expressed by the States Parties in their national law [51] See endnote 50.
. In this context, the Parliamentary Assembly of the Council of Europe has been calling on the Member States of the Council of Europe to adopt measures on participatory and deliberative democracy processes [52]
Council of Europe, ‘Participatory democracy: newsroom – PACE calls for strengthening democracy through participatory and deliberative processes’, Council of Europe website, June 2024, paragraph 9.
. In Finland and Latvia, the constitution has been interpreted to include a right to participate in public affairs [53]
Hämäläinen, H.. and Salminen, J., ‘Inclusive participation in law-making: good governance or a constitutional obligation?’, in: The Theory and Practice of Legislation, Vol. 13 Issue 2, Taylor & Francis Online, 2 June 2025, pp. 213–235.
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Transparency, public participation and consultation are also key at the EU level. Article 10(3) of the TEU states that ‘every citizen shall have the right to participate in the democratic life of the Union’ and that ‘decisions shall be taken as openly and as closely as possible to the citizen’. Furthermore, Article 11 of the TEU requires EU institutions to listen to citizens and their representative organisations in all areas of EU action, and to keep an open, transparent and regular dialogue with representative associations and civil society.
Consultation of the relevant stakeholders allows public authorities to grasp the situation on the ground, identify gaps and provide sustainable legislative solutions after balancing the different interests at stake.
National human rights institutions (NHRIs), ombuds institutions and equality bodies provide independent human rights expertise to national authorities [54]
UN General Assembly, ‘Principles relating to the Status of National Institutions (The Paris Principles)’, 20 December 1993; FRA, Strong and effective national human rights institutions – Challenges, promising practices and opportunities, Publications Office of the European Union, Luxembourg, 3 September 2020, p. 91; FRA, EU funds – Ensuring compliance with fundamental rights, Publications Office of the European Union, Luxembourg, 19 December 2023; FRA, NHRI Accreditation Status and Mandates – 2025 update, Publications Office of the European Union, Luxembourg, 29 April 2025.
, for example, on specific issues related to equality, gender and disability [55] Interviews with representatives of the Netherlands Institute for Human Rights and the NHRI in Germany.
. Under the Paris Principles, these bodies should be mandated to ‘promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments to which the state is a party, and their effective implementation’ [56]
UN General Assembly, ‘Principles relating to the Status of National Institutions (The Paris Principles)’, 20 December 1993, paragraph 3(b).
. For this purpose, NHRIs may submit to the legislator either at request or on their own initiative, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights.
Under EU law, the involvement of equality bodies is legally prescribed for legislation and policy related to the rights and obligations derived from EU equality law [57]
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ L 6, 10.1.1979, p. 24, ELI: http://data.europa.eu/eli/dir/1979/7/oj); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2.12.2000, p. 16, ELI: http://data.europa.eu/eli/dir/2000/78/oj); Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ L 204, 26.7.2006, p. 23, ELI: http://data.europa.eu/eli/dir/2006/54/oj); Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ L 180, 15.7.2010, p. 1, ELI: http://data.europa.eu/eli/dir/2010/41/oj) Directive 2010/41/EU on equal treatment between men and women engaged in an activity in a self-employed capacity. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22, ELI: http://data.europa.eu/eli/dir/2000/43/oj); Directive 2004/113/EC on equal treatment between men and women in the access to and supply of goods and services; 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 (OJ L 373, 21.12.2004, p. 37, ELI: http://data.europa.eu/eli/dir/2004/113/oj).
. Article 15 of the two directives on standards for equality bodies (Directive (EU) 2024/1499 [58]
Council Directive (EU) 2024/1499 of 7 May 2024 on standards for equality bodies in the field of equal treatment between persons irrespective of their racial or ethnic origin, equal treatment in matters of employment and occupation between persons irrespective of their religion or belief, disability, age or sexual orientation, equal treatment between women and men in matters of social security and in the access to and supply of goods and services, and amending Directives 2000/43/EC and 2004/113/EC, ST/10788/2023/REV/1, OJ L, 2024/1499, 29.5.2024, ELI: http://data.europa.eu/eli/dir/2024/1499/oj.
and Directive (EU) 2024/1500 [59]
Directive (EU) 2024/1500 of the European Parliament and of the Council of 14 May 2024 on standards for equality bodies in the field of equal treatment and equal opportunities between women and men in matters of employment and occupation, and amending Directives 2006/54/EC and 2010/41/EU, PE/92/2023/REV/1, OJ L, 2024/1500, 29.5.2024, ELI: http://data.europa.eu/eli/dir/2024/1500/oj.
obliges the Member States to ‘put in place procedures to ensure that the government and relevant public authorities consult equality bodies’ on the relevant EU equality legislation and policy. Article 15(2) further states that ‘Member States shall ensure that equality bodies have the right to make recommendations on those matters, to publish the recommendations and to request follow-up regarding such recommendations’.
Along with independent expert institutions such as NHRIs, civil society also plays a vital role in voicing issues connected to human rights [60]
Human Rights Council, ‘Draft guidelines for States on the effective implementation of the right to participate in public affairs’, A/HRC/39/28, 20 July 2018, paragraphs 1, 2 and 19.
. An open and inclusive approach to lawmaking allowing citizens/residents to express their concerns and wishes and experts to provide evidence and know-how is not just an expression of good governance, but is also a tool to avoid legislation that results in any violation of human rights [61] See endnote 60. See also FRA, Civic Space Report, forthcoming.
. Including all segments of society in the decision-making process creates a more inclusive, equitable society and has an ‘empowering effect’ on marginalised groups [62]
UN Special Rapporteur on extreme poverty and human rights and ATD Fourth World, ‘Capturing and combatting the hidden dimensions of poverty through the IDEEP (inclusive and deliberative elaboration & evaluation of policies) tool’, February 2024, pp. 7 and 10.
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To guarantee legitimacy, consultations should not be a mere formality but be meaningful, focused and used to come up with the best proposal that fits societal needs. The consultation should be driven by the risks identified in the impact assessment, and consultation should also contribute to the identification of significant impacts [63] FRA, minutes of the expert meeting of 20 June 2025.
. The results of the consultations should be reflected in the documents related to the specific draft law, such as the explanatory memorandum, and be reported in a transparent and detailed manner, including dissenting views [64]
European Parliament: Anglemayer, I., Capdevila Penalva, J., Efthymiadou, A., Frizberg, D., Kramer, E. et al., ‘Quality analysis of European Commission impact assessments – Developments during the 2019–2024 term’, Brussels, February 2025, European Parliament resolution of 7 July 2022 on Better regulation: Joining forces to make better laws, paragraph 4.
. Not considering the opinions of people and civil society may result in opaque and ineffective legislative action which is not connected to the realities of society [65]
OECD, OECD Regulatory Policy Outlook 2025, OECD Publishing, Paris, 9 April 2025, pp. 34 and 36. FRA, minutes of expert meeting of 20 June 2025.
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The OSCE/ODIHR Guidelines on Democratic Lawmaking for Better Laws encourage legislators to ‘diversify the structures, methods, mechanisms, tools and types of public participation, ensuring that they are accessible, user-friendly and include new technologies, but are not limited to the sole use of online tools’ [66]
OSCE/ODIHR, Guidelines on Democratic Lawmaking for Better Laws, p. 12.
(p. 12). In fact, participation plays a key role in many stages of HRIAs such as evidence-gathering, analysis, the preparation of conclusions or recommendations, monitoring and evaluation [67]
See, for example, 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, pp. xii and xiii; OSCE/ODIHR, Making Laws Work for Women and Men: A practical guide to gender-sensitive legislation, Warsaw, 2017, p. 49.
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