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This section presents how the Member States, observer countries and the EU conduct the impact assessment of legislative proposals on human rights, including legal scrutiny, before and after adoption of legislation. The report identifies drivers and hurdles for efficiently considering human and fundamental rights in the HRIA. Moreover, this section presents a set of promising practices.
All EU legislative proposals can have an impact on fundamental rights. This requires the inclusion of HRIA into the EU legislative process with transparent legal scrutiny and strong participatory elements. The overall picture of the EU system is generally positive with some negative aspects due to insufficient implementation of existing procedures.
At the EU level, both the European Parliament and the Council of the European Union (the Council) hold legislative powers. While they are co-legislators, the right of legislative initiative belongs exclusively to the Commission. The European Parliament may request the Commission to submit legislative proposals. Moreover, citizens have a limited option to influence EU policies through the ‘citizens’ initiative [68]
Article 11 of the TEU, Article 24 of the TFEU: Consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ C 202, 7.6.2016, p. 1.
. However, the thresholds for successfully registering and carrying out such initiatives are high, and once the initiative has been successfully carried out it is up to the Commission to decide on whether to act on it and table a legislative proposal or not.
The governments articulate their positions regarding the legislative proposals of the Commission at the ministerial Council of the European Union. National parliaments in most Member States scrutinise the acts and positions of their governments in the EU decision-making process. When the EU legislator identifies fundamental rights impacts for some proposals, the impacts are not automatically assessed at the national level when implementing EU law. For instance, in Croatia, the national parliament may request the government to prepare a regulatory impact assessment concerning the EU legislative proposal [69]
Council of Europe: Venice Commission, ‘European decision-making processes and national Parliaments – Replies to the questionnaire’, CDL-PI(2021)012, 7 July 2021, p. 21.
. In Estonia, the government must submit an impact assessment to the national parliament in this regard [70] See endnote 69, p. 40.
.
The Council, the Commission and the European Parliament concluded an Interinstitutional Agreement on Better Law-Making [71]
Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, OJ L 123, 12.5.2016, pp. 1–14.
in which the three institutions agree to observe general principles of EU law, such as democratic legitimacy, subsidiarity and proportionality and legal certainty. [72]
Commission, ‘Better regulation toolbox’, paragraph 2 and tool No 5.
While the agreement does not put fundamental rights at the centre of its attention, it does mention that ‘the principles of subsidiarity and proportionality should be fully respected, as should fundamental rights’ (paragraph 12). The agreement stresses that European Parliament and the Council will take full account of the impact assessments carried out by the Commission. Moreover, they will, when they consider it to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their substantial amendments of the Commission’s proposal (paragraphs 13 and 14). The aim is to improve the quality of EU legislation towards evidence-based policy choices which enjoy democratic legitimacy. Public and stakeholder consultation (paragraph 19) and feedback are important elements of the process, as is the ex post evaluation of existing legislation (paragraphs 20–24).
Following the Interinstitutional Agreement on Better Law-Making, each of the three institutions adopted guidelines in this respect. The European Commission developed the better regulation guidelines and toolbox [73]
Commission, ‘Better regulation: guidelines and toolbox’, Commission website.
, setting up the principles it follows when preparing new legislative initiatives and proposals and evaluating existing legislation. Tool No 29 of the toolbox specifically gives guidance on how to assess impacts on fundamental rights as contained in the Charter. The tool requires screening against two checklists: a fundamental rights checklist and a non-discrimination and equality checklist for every impact assessment report [74] See endnote 73, pp. 244–249 of the tool and pp. 33 and 35 of the better regulation guidelines.
. Fundamental rights impacts are dealt with at the same level as economic, social and environmental impacts, digital by default, sustainable development goals, small and medium-sized enterprises and competitiveness. All these impacts are to be reported systematically. Furthermore, the Commission previously adopted operational guidance on taking account of fundamental rights in Commission impact assessments [75]
Commission staff working paper ‘Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments’, SEC(2011) 567 final, Brussels, 6 May 2011.
. The guidance, addressed to its departments, presents how to assess impacts of the Commission’s legislative proposals on fundamental rights in practice.
While the Council does not appear to engage in complementing the regulatory impact assessments (RIAs) of the European Commission or in providing impact assessments concerning the amendments it proposes to the original legislative proposal as tabled by the European Commission, it adopted the guidelines Fundamental Rights Compatibility – Guidelines for Council preparatory bodies [76]
Council of the EU, ‘Fundamental rights compatibility, guidelines for Council preparatory bodies’, Luxembourg, 2015.
which include a ‘fundamental rights checklist’ (Annex V) to identify and address fundamental rights issues connected to proposals at the Council preparatory bodies.
The European Parliament adopted an Impact Assessment Handbook [77]
European Parliament, ‘Impact Assessment Handbook’, 12 September 2017.
in 2013 (revised in 2017), with guidelines for the Parliament’s committees on conducting impact assessments based on the Commission’s standard format for its own impact assessments. The Annex to the guidelines mentions that the impact assessment report must include an assessment on whether the objectives pursued by legislative proposals are consistent with the Charter (pp. 10 and 11).
While the EU certainly ‘leads by example’ in terms of awareness of the key importance of the Charter for the legislative process and the availability of respective procedures, the overall picture also shows weaknesses. The most concerning element is that it appears that impact assessments are not carried out on all initiatives that have significant impacts. Sometimes the assessments are very superficial and at times, even in cases where fundamental rights are very important to the legislative file, fundamental rights assessments are not carried out at all.
The European Parliamentary Research Service (EPRS) assessed the quality of the Commissions’ impact assessments accompanying legislative proposals between December 2019 and November 2024. It found that out of the 143 impact assessment reports analysed, 62 assessed impacts on fundamental rights, and 31 of those only partially assessed these impacts. The report stressed that ‘all impact assessment reports should systematically consider and report potential impacts on fundamental rights’ [78]
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, pp. 17 and 20.
.
At the time of writing, various procedures are pending before the European Ombudsman over the allegation of breaching the ‘better regulation guidelines’ by not carrying out an impact assessment when preparing legislative proposals. The complaints relate to the proposals for a directive on enhancing police cooperation on the prevention, detection and investigation of migrant smuggling [79]
Proposal for a Regulation of the European Parliament and of the Council on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes and amending Regulation (EU) 2016/794, COM/2023/754 final, 28 November 2023.
, the Regulation to prevent and counter the facilitation of unauthorised entry, transit, and stay in the Union [80]
Proposal for a Directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM/2023/755 final, 28 November 2023; European Ombudsman, ‘The European Commission’s decision not to carry out an impact assessment on two legislative proposals to counter migrant smuggling’, case 2031/2024/VB, opened on 23 June 2025.
, a proposal to amend legislation related to the Common Agricultural Policy [81]
European Ombudsman, ‘How the European Commission prepared a proposal to amend legislation related to the Common Agriculture Policy’, case 1379/2024/MIK, opened on 16 September 2024.
and a legislative proposal on corporate sustainability reporting and due diligence [82]
European Ombudsman, ‘The European Commission's failure to comply with its 'Better Regulation Guidelines' in preparing a legislative proposal on corporate sustainability reporting and due diligence’, case 983/2025/MAS, opened on 21 May 2025.
.
The European Parliament [83]
European Parliament resolution of 30 May 2018 on the interpretation and implementation of the Interinstitutional Agreement on Better Law-Making, OJ C 76, 7.2.2023, p. 86, points 15, 17, 22 and 99; European Parliament resolution of 7 July 2022 on better regulation: Joining forces to make better laws, OJ C 47, 7.2.2023, p. 250, points 7, 21, 23, 43 and 45; European Parliament resolution of 23 November 2023 on European Union regulatory fitness and subsidiarity and proportionality – Report on better law-making covering 2020, 2021 and 2022 OJ C/2024/4228, 24.7.2024.
and the expert community [84]
For example, Butler, I., ‘Ensuring compliance with the Charter of Fundamental Rights in legislative drafting – The Practice of the European Commission’, in: European Law Review, Issue 4, Sweet & Maxwell, London, September 2012, pp. 379–418; Ravo, L., ‘How the European Commission Could Become a Leader on Fundamental Rights’, Civil Liberties Union for Europe website, 3 June 2020; Gambardella, I., Ghysels, T., Kappé, M., Lemmer, S-C., Lorans, Y. et al., ‘Enhancing Fundamental Rights Protection – Proposals for ex ante review of EU legislation (PEARL)’, Verfassungsblog website, 4 November 2024; Regional Office for Europe of the UN High Commissioner for Human Rights, The European Union and International Human Rights Law, Brussels, 2023, pp. 17 and 18.
have been calling to strengthen the fundamental rights review of EU legislative proposals. National parliaments and academia have also criticised the EU lawmaking process as ‘complex and unintelligible’, which poses risks for the implementation and enforcement of laws within the EU [85]
European Parliament:Policy Department for Justice, Civil Liberties and Institutional Affairs, Vanyskova, Z., ‘Critical Approach to EU law-making: French Senate’s report on EU legislation’, PE 772.719, April 2025, p. 9.
.
FRA’s research confirmed this. FRA examined 116 legislative proposals which were adopted at the EU level in the years 2019–2025, all of which, in the agency’s view, could have had potential impacts on fundamental rights [86]
EUR-Lex, ‘Legal acts – statistics’, Publications Office of the European Union.
. Although an impact assessment was conducted in 103 examples, in approximately one third of these the fundamental rights impact assessment was either very brief – half a page or less (23) [87]
Directive (EU) 2019/520 of the European Parliament and of the Council of 19 March 2019 on the interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay road fees in the Union (recast) (OJ L 91, 29.3.2019, p. 45, ELI: http://data.europa.eu/eli/dir/2019/520/oj); https://eur-lex.europa.eu/eli/reg/2019/493/oj/eng (OJ L 85I, 27.3.2019, p. 7, ELI: http://data.europa.eu/eli/reg/2019/493/oj); Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92, ELI: http://data.europa.eu/eli/dir/2019/790/oj); Council Directive (EU) 2019/997 of 18 June 2019 establishing an EU Emergency Travel Document and repealing Decision 96/409/CFSP (OJ L 163, 20.6.2019, p 1, ELI: http://data.europa.eu/eli/dir/2019/997/oj)Visa Code; Regulation (EU) 2019/1238 of the European Parliament and of the Council of 20 June 2019 on a pan-European Personal Pension Product (PEPP) (OJ L 198, 25.7.2019, p. 1, ELI: http://data.europa.eu/eli/reg/2019/1238/oj); Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ L 172, 26.6.2019, p. 18, ELI: http://data.europa.eu/eli/dir/2019/1023/oj); Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1, ELI: http://data.europa.eu/eli/dir/2020/1828/oj) Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability‐related disclosures in the financial services sector (OJ L 317, 9.12.2019, p. 1, ELI: http://data.europa.eu/eli/reg/2019/2088/oj); Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC, (OJ L 409, 4.12.2020, p. 1, ELI: http://data.europa.eu/eli/dir/2020/1828/oj); Regulation (EU) 2021/782 of the European Parliament and of the Council of 29 April 2021 on rail passengers’ rights and obligations (recast) (OJ L 172, 17.5.2021, p 1, ELI: http://data.europa.eu/eli/reg/2021/782/oj); Regulation (EU) 2022/1034 of the European Parliament and of the Council of 29 June 2022 amending Regulation (EU) 2021/953 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic (OJ L 173, 30.6.2022, p. 37, ELI: http://data.europa.eu/eli/reg/2022/1034/oj); Directive (EU) 2022/2555 of the European Parliament and of the Council of 14 December 2022 on measures for a high common level of cybersecurity across the Union, amending Regulation (EU) No 910/2014 and Directive (EU) 2018/1972, and repealing Directive (EU) 2016/1148 (NIS 2 Directive) (OJ L 333, 27.12.2022, p. 80, ELI: http://data.europa.eu/eli/dir/2022/2555/oj); Regulation (EU) 2023/955 of the European Parliament and of the Council of 10 May 2023 establishing a Social Climate Fund and amending Regulation (EU) 2021/1060 (OJ L 130, 16.5.2023, p. 1, ELI: http://data.europa.eu/eli/reg/2023/955/oj); Directive (EU) 2023/1544 of the European Parliament and of the Council of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings (OJ L 191, 28.7.2023, p. 181, ELI: http://data.europa.eu/eli/dir/2023/1544/oj); Directive (EU) 2023/2843 of the European Parliament and of the Council of 13 December 2023 amending Directives 2011/99/EU and 2014/41/EU of the European Parliament and of the Council, Council Directive 2003/8/EC and Council Framework Decisions 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, as regards digitalisation of judicial cooperation (OJ L, 2023/2843, 27.12.2023, ELI: http://data.europa.eu/eli/dir/2023/2843/oj); Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (OJ L, 2024/1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj); Directive (EU) 2024/1226 of the European Parliament and of the Council of 24 April 2024 on the definition of criminal offences and penalties for the violation of Union restrictive measures and amending Directive (EU) 2018/1673 (OJ L, 2024/1226, 29.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1226/oj); 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 (OJ L, 2024/1499, 29.5.2024, ELI: http://data.europa.eu/eli/dir/2024/1499/oj); 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 (OJ L, 2024/1500, 29.5.2024, ELI: http://data.europa.eu/eli/dir/2024/1500/oj); Regulation (EU) 2025/38 of the European Parliament and of the Council of 19 December 2024 laying down measures to strengthen solidarity and capacities in the Union to detect, prepare for and respond to cyber threats and incidents and amending Regulation (EU) 2021/694 (Cyber Solidarity Act) (OJ L, 2025/38, 15.1.2025, ELI: http://data.europa.eu/eli/reg/2025/38/oj); Regulation (EU) 2025/925 of the European Parliament and of the Council of 7 May 2025 on a Border Regions’ instrument for development and growth (BRIDGEforEU) (OJ L, 2025/925, 19.5.2025, ELI: http://data.europa.eu/eli/reg/2025/925/oj); Proposal for a Directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM(2023) 755 final of 28 November 2023. Proposal for a Regulation of the European Parliament and of the Council on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes and amending Regulation (EU) 2016/794, COM(2023) 754 final of 28 November 2023; Proposal for a directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM/2023/755 final of 28 November 2023.
– or very general (11) [88]
Regulation (EU) 2019/881 of the European Parliament and of the Council of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act) (OJ L 151, 7.6.2019, p. 15, ELI: http://data.europa.eu/eli/reg/2019/881/oj); Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019, p. 105, ELI: http://data.europa.eu/eli/dir/2019/1152/oj); Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1, ELI: http://data.europa.eu/eli/reg/2019/1896/oj); Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ L 433I, 22.12.2020, p. 1, ELI: http://data.europa.eu/eli/reg/2020/2092/oj); Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) (OJ L 206, 11.6.2021, p. 1, ELI: http://data.europa.eu/eli/reg/2021/821/oj); Regulation (EU) 2021/1060 of the European Parliament and of the Council of 24 June 2021 laying down common provisions on the European Regional Development Fund, the European Social Fund Plus, the Cohesion Fund, the Just Transition Fund and the European Maritime, Fisheries and Aquaculture Fund and financial rules for those and for the Asylum, Migration and Integration Fund, the Internal Security Fund and the Instrument for Financial Support for Border Management and Visa Policy (OJ L 231, 30.6.2021, p. 159, ELI: http://data.europa.eu/eli/reg/2021/1060/oj); Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No 537/2014, Directive 2004/109/EC, Directive 2006/43/EC and Directive 2013/34/EU, as regards corporate sustainability reporting (OJ L 322, 16.12.2022, p. 15, ELI: http://data.europa.eu/eli/dir/2022/2464/oj); Regulation (EU) 2023/2418 of the European Parliament and of the Council of 18 October 2023 on establishing an instrument for the reinforcement of the European defence industry through common procurement (EDIRPA) (OJ L, 2023/2418, 26.10.2023, ELI: http://data.europa.eu/eli/reg/2023/2418/oj); Regulation (EU) 2024/3005 of the European Parliament and of the Council of 27 November 2024 on the transparency and integrity of Environmental, Social and Governance (ESG) rating activities, and amending Regulations (EU) 2019/2088 and (EU) 2023/2859 (OJ L, 2024/3005, 12.12.2024, ELI: http://data.europa.eu/eli/reg/2024/3005/oj).
. In 4 legislative proposals that clearly impact fundamental rights, no publicly documented fundamental rights check was carried out by the competent Commission’s service: Directive (EU) 2024/2841 on the European disability and parking cards [89]
Directive (EU) 2024/2841 of the European Parliament and of the Council of 23 October 2024 establishing the European Disability Card and the European Parking Card for persons with disabilities (Text with EEA relevance), PE/49/2024/REV/1, OJ L, 2024/2841, 14.11.2024.
, the proposals for a regulation [90]
Proposal for a Regulation of the European Parliament and of the Council on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes and amending Regulation (EU) 2016/794, COM/2023/754 final, 28 November 2023.
and a directive [91]
Proposal for a Directive of the European Parliament and of the Council laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA, COM/2023/755 final, 28 November 2023.
on migrant smuggling and a directive on certain corporate sustainability reporting and due diligence requirements [92]
Proposal for a Directive of the European Parliament and of the Council amending Directives 2006/43/EC, 2013/34/EU, (EU) 2022/2464 and (EU) 2024/1760 as regards certain corporate sustainability reporting and due diligence requirements, COM/2025/81 final, 26 February 2025.
.
The shortcomings in the Commission’s impact assessments were sometimes remedied by the European Parliament through complementary or substitute impact assessment reports [93]
European Parliament: Conference of Committee Chairs, ‘Impact Assessment Handbook – Impact assessment handbook’, p. 5.
, with a view to integrating more fundamental rights considerations and safeguards into the legislative file. A substitute impact assessment report (prepared when no impact assessment is presented by the European Commission) can sometimes be conducted, for example for the New Pact on Migration and Asylum [94]
EPRS, ‘The European Commission’s New Pact on Migration and Asylum. Horizontal substitute impact assessment, Study’, 12 August 2021.
. Therein, the EPRS noted that the proposed pact would have significant negative consequences for many stakeholders and for many areas, including for fundamental rights. Similar concerns were included in the Parliament’s impact assessments concerning the proposed Return Directive [95]
ERPS, ‘The proposed Return Directive (recast)-Substitute Impact Assessment, Study’, 12 February 2019.
, the proposal for a Regulation on police cooperation to counter migrant smuggling and human trafficking [96]
EPRS, ‘Proposal for a Regulation on police cooperation to counter migrant smuggling and human trafficking: Targeted substitute impact assessment, Study’, 5 February 2025.
, the proposal for a revised Facilitation Directive [97]
EPRS, ‘Commission proposal for a revised Facilitation Directive: Targeted substitute impact assessment, Study’, 5 March 2025.
, the proposal for a regulation addressing situations of instrumentalisation in the area of migration and asylum [98]
EPRS, ‘Substitute impact assessment: Proposal for a regulation addressing situations of instrumentalisation in the field of migration and asylum, Study’, 3 October2023.
and the European Commission package of ETIAS consequential amendments [99]
ERPS, ‘The European Commission package of ETIAS consequential amendments: Substitute impact assessment, Study’, 20 December 2019.
.
The European Parliament considered the Commission’s impact assessment on the proposal for a Regulation laying down rules to prevent and combat child sexual abuse [100]
ERPS, ‘Proposal for a regulation laying down rules to prevent and combat child sexual abuse, Study’, 26 April 2023.
as insufficient and requested a complementary impact assessment report. The European Parliament considered that the potential interferences with the right to privacy and data protection of the proposed EU legislation had been excessive. The EPRS analysis highlighted the need to better protect fundamental rights on the internet (concerns that were also echoed by civil society organisations (CSOs) and Member States) [101]
European Parliament: Wolfgang H., ‘Impact assessment and European added value work during the ninth legislative term, 2019 – 2024’, Briefing, 17 July 2024, p. 3; Council of the European Union: General Secretariat of the Council, ‘Handling of impact assessments within the Council – Annual report covering the period January–December 2023 – Endorsement’, 9394/24, Brussels, 29 April 2024.
. Similar examples of complementary impact assessments or initial appraisals include the proposed revision of the Victims’ Rights Directive [102]
EPRS, ‘Revision of the Victims' Rights Directive, Briefing’, 24 November 2023.
, the proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence [103]
EPRS, ‘Proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence: Complementary impact assessment, Study’, 19 September 2024.
, the recast of the Child Sexual Abuse Directive [104]
EPRS, ‘Preventing and combating child sexual abuse, Briefing’, 30 November 2022.
and the proposal establishing an EU talent pool [105]
ERPS, ‘Establishing an EU talent pool, Briefing’, 2 February 2024.
.
The Commission’s Regulatory Scrutiny Board (RSB) is mandated to independently assess the quality of all draft impact assessments of the Commission [106]
Decision of the President of the European Commission on the establishment of an independent Regulatory Scrutiny Board, C(2015) 3263 final of 19 May 2015, Articles 1 and 2. Decision of the President of the Commission amending Decision P(2020)2 as regards the composition of the Regulatory Scrutiny Board, the quorum for its decisions and the focus of its tasks, P(2022) 1 of 11 December 2022.
. However, this assessment appears to primarily be focused on economic impacts [107]
Pircher, B., The EU’s Commission Regulatory Scrutiny Board: Better regulation or biased influence on legislation?, Vienna, March 2023, pp. 19-20.
. The European Ombudsman noted that the RSB should ensure the sufficient knowledgebase of its members to evaluate the correctness of other impacts, not just economic [108]
European Ombudsman, Decision of 13 September 2024 on the composition of the European Commission's Regulatory Scrutiny Board and how it interacts with interest representatives, Case 439/2023/KR.
. In 2023, 35 % of its impact assessments and/or opinions and 38 % of its evaluations and/or opinions assessed fundamental rights impacts [109]
European Commission: Regulatory Scrutiny Board, Annual Report 2023, Publications Office of the European Union, Luxembourg, 2024, pp. 55–56; European Commission: Regulatory Scrutiny Board, Annual report 2024, Publications Office of the European Union, Luxembourg, 2025, p. 23.
.
After the entry into force of the Lisbon Treaty [110]
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306, 17.12.2007, pp. 1–271.
, the European Parliament amended its rules of procedure to allow the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs to check the fundamental rights’ compliance of a legislative proposal, if consulted [111]
European Parliament, Rules of Procedure 2024–2029, July 2024, Rule 40 and point XVII in Annex VI.
. Although this procedure is hardly used in practice, the committee in the past years has requested many impact assessments from the EPRS, showing its concerns about the compliance of Commission proposals with fundamental rights.
Legal scrutiny of possible fundamental rights interferences at the law drafting stage is done by the Commission’s Legal Service and Directorate General for Justice and Consumers in the interservice group [112]
Rules of Procedure of the Commission [C(2000) 3614] (OJ L 308, 8 December 2000, Articles 12 and 21, ELI: https://eur-lex.europa.eu/eli/proc_rules/2000/3614/oj/eng); European Commission, ‘‘Better regulation’ toolbox – July 2023 edition’, 20 July 2023, p. 245.
. There is no obligation to involve external and independent fundamental rights exert bodies with the exception of the area of data protection where the European Commission has to consult the European Data Protection Supervisor when adopting proposals for legislative acts and when preparing delegated acts or implementing acts [113]
See Article 42 of Regulation (EU) 2018/1725 on the protection of natural persons with regard to the processing of personal data: Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39, ELI: https://eur-lex.europa.eu/eli/reg/2018/1725/oj).
. FRA can only issue opinions on pending legislative proposals when explicitly requested to do so by the Commission, the European Parliament or the Council of the European Union [114]
See on the role of FRA opinions in the legislative process the study by Olivier de Schutter carried out for the European Parliament. European Parliament: Policy Department for Citizens’ Rights and Constitutional Affairs, de Schutter, O., Strengthening the Fundamental Rights Agency – The revision of the Fundamental Rights Agency Regulation, Brussels, May 2020 at pages 24-32. For the agency’s own views see FRA, ‘Recommendations regarding changes in the agency, its working practices and the scope of its mission’, Management Board decision 2017/05, 599/18 Add. 1, 14 December 2017, pp. 15–17.
. Against this background, in 2019 the European Parliament suggested that the EU institutions ‘should provide for enhanced forms of consultation, impact assessment and legal scrutiny, including by requesting advice from appropriate independent expert bodies such as the FRA, whenever a legislative file potentially promotes or negatively affects fundamental rights’ and furthermore suggested ‘in this regard that more regular consultation of the FRA could be provided for in a revised version of the Interinstitutional Agreement on Better Law-Making’ [115]
European Parliament resolution of 16 January 2019 on the situation of fundamental rights in the European Union in 2017, OJ C 411, 27.11.2020, p. 94, paragraph 47. FRA has also called on the EU legislator to change its founding regulation so that the Agency would be able to provide its assistance and expertise where and when it is needed and not only when it is formally requested.
. Besides the lack of systematically involving independent external fundamental rights expertise, the internal legal assessment within the EU institutions is not open to the public. The CJEU noted that greater transparency of this process would contribute to the lawfulness and legitimacy of the EU decision-making process in the eyes of EU citizens [116]
Judgment of the Court of Justice of 1 July 2008, Sweden and Turco v Council, Joined Cases C-39/05 P and C‑52/05 P, ECLI:EU:C:2008:374, paragraph 59.
. The European Ombudsman recently noted that the Commission and the Council had been ‘failing to give full effect to the principle of legislative transparency, as set out in the EU Treaties, Regulation 1049/2001 [117]
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, OJ L 145, 31.5.2001, pp. 43–48.
, and related case-law’ when handling requests for public access to legislative documents [118]
European Ombudsman, Decision of 3 December 2024 on how the European Parliament, the Council of the European Union and the European Commission handle requests for public access to legislative documents, Case OI/4/2023/MIK.
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… it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated.
Judgment of the CJEU of 1 July 2008, Turco, Joined Cases C‑39/05 P and C‑52/05 P, paragraph 59.
The most efficient review of the legality of legislative acts remains the one done by the CJEU through actions for annulment. However, the procedure before the CJEU can only be initiated after the publication of the relevant EU legislative act and therefore has no pre-emptive ex ante dimension [119]
Articles 263 and 264 of the TFEU, and Article 51 of the Statue of the Court of Justice of the European Union: Consolidated version of the Treaty on the Functioning of the European Union – Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJ C 202, 7.6.2016, p. 210, ELI: http://data.europa.eu/eli/treaty/tfeu_2016/pro_3/oj). Statute of the CJEU.
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The EPRS concluded that the vast majority of Commission’s impact assessments included monitoring and evaluation provisions during the 2019–2024 term [120]
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, p. 29.
. The EPRS noted that the Commission has ensured high transparency and accessibility of the evaluation process [121]
European Parliament: Directorate-General for Parliamentary Research Services, Anglmayer, I., Evaluation in the European Commission – Rolling check-list and state of play,-Brussels, 16 October 2023, p. II.
. However, the EPRS also noted issues with the traceability of the evaluations carried out ‘back-to-back’, of the RSB’s opinions and of the supporting evidence used in the evaluations [122] See endnote 121, p. III.
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Back-to-back procedures are provided for in the better regulation guidelines allowing the Commission to exceptionally conduct impact assessments and evaluations at the same time where necessary [123]
Commission staff working document – Better regulation guidelines, SWD(2021) 305 final of 3 November 2021, p. 25; ‘‘Better regulation’ toolbox – July 2023 edition’, Tool #50, p. 439.
. A back-to-back approach like this means the Commission conducts evaluations and impact assessments in parallel rather than consecutively which saves time but carries the risk that the impact assessments do not (sufficiently) take the findings of the evaluations into account. In the sample the EPRS examined, 29 out of the 143 impact assessments were carried out back-to-back, representing 20 % (or 30 % if only initiatives for revision are considered) of legislative initiatives between 2019 and 2024 [124]
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,EPRS, ‘Quality analysis of European Commission impact assessments, Developments during the 2019-2024 term’, Brussels, February 2025, pp. 8–9.
. The European Court of Auditors highlighted the risk that the independence of the two processes is not sufficiently guaranteed [125]
European Court of Auditors, Ex-post review of EU legislation: a well-established system, but incomplete – Special report 16/2018, Publications Office of the European Union, Luxembourg, 2018, pp. 31 and 37.
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The European Parliament plays an increasingly important role in ex post evaluation. Evaluation at the committee level takes the form of an implementation report. The EPRS assists parliamentary committees with studies (European implementation assessments) providing evidence to feed into the implementation report. The political function of the implementation report is two-fold: first, to hold the Commission to account, and second, to give impetus to the review (or revision) process of the EU policy or legislation at stake [126]
European Parliament: Directorate-General for Parliamentary Research Services, Anglmayer, I., Better regulation practices in national parliaments, Brussels, June 2020, p. 11.
. A notable example is the EPRS’ implementation assessment on the Return Directive 2008/115/EC [127]
EPRS, ‘The Return Directive 2008/115/EC, European Implementation Assessment’, June 2020.
, prepared in support of the Parliament’s implementation report on the Return Directive [128]
European Parliament resolution of 17 December 2020 on the implementation of the Return Directive (2019/2208(INI)), Brussels, 17 December 2020.
, which identified ‘protection gaps and shortcomings’ in the issuance and enforcement of return decisions, entry bans and detentions.
This section explores the extent to which the EU Member States and FRA’s three observer countries, Albania, North Macedonia and Serbia, assess the impacts of legislative proposals on human rights, including legal scrutiny, before the adoption of legislation, and in evaluations of existing legislation.
The Organisation for Economic Co-operation and Development (OECD) Better Regulation Practices across the European Union 2025 report notes that all Member States have better regulation strategies in place and impact assessments form a prominent part of these. However, the report criticises the fact that this is an area that has experienced slow progress recently and that regulatory impact assessments often come too late so that they justify, rather than inform, legislative decisions [129]
OECD, Better Regulation Practices across the European Union 2025, OECD Publishing, Paris, 29 September 2025, pp. 21, 35 and 39.
. With regard to the assessment of social impacts, the OECD report notes that since 2017, the number of states that systematically assess impacts on specific social groups and gender inequality has continued to grow. Nevertheless, the role of social impacts in RIAs appears limited, as only around half of the Member States systematically look into the impacts on human health, age groups (e.g. young or elderly people) or regional areas [130] See endnote 129, p. 66.
. It appears that references to human rights in RIAs is far from frequent and prominent across the EU.
The agency looked specifically at human rights impact assessments and confirmed this impression: the research shows that human rights impact assessments are not conducted systematically. The lack of legally binding rules, time, resources, expertise and interministerial cooperation, and the lack of political will, play a significant role in whether impacts on human rights are identified and addressed in the legislative process (both ex ante and ex post).
Impact assessments in most countries have a specific human rights focus provided in binding law (e.g. rules of procedure) or soft law (guidelines, checklists etc.) [131] Information provided by the relevant NLOs.
. However, the extent of the analysis of impacts on human rights varies across the countries and policy areas. Reference to human rights in impact assessments tends to be centred on specific areas and does not encompass the whole spectrum of human rights, for example, gender equality and rights of the child in Germany [132]
Germany, ‘Der Jugend-Check’, Kompetenzzentrum Jugend-Check website.
, data protection in Germany and Slovenia [133] German and Slovenian NLO feedback.
, ECtHR case-law in Romania [134]
Romania, Law no 24 of 27 March 2000, Lege nr. 24 din 27 martie 2000 privind normele de tehnică legislativă pentru elaborarea actelor normative, Official Journal no. 260, 21 April 2010, Articles 6, 13, 21 and 22.
, equality, non-discrimination and accessibility for people with disabilities in Spain [135]
Spain, Royal Decree 931/2017 of 27 October on the Regulatory Impact Analysis Report Real Decreto 931/2017, de 27 de octubre, por el que se regula la Memoria del Análisis de Impacto Normativo, ‘BOE’ no 276, 14 November 2017.
and gender equality in North Macedonia [136] Information provided by the NLO of North Macedonia.
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We are lacking human rights and disability mainstreaming within the ministries and more generally within society.
Expert from the NHRI in Germany.
Economic and social rights are still a neglected topic.
Expert from the Netherlands Institute for Human Rights.
HRIAs and processes of legal scrutiny primarily consider national constitutional rights, the ECHR and other international human rights standards, whereas EU fundamental rights, including the Charter are less extensively addressed [137] Information provided by the national liaison officers. Interviews with experts from a CSO in Denmark, from the parliaments of Greece, France and North Macedonia, from the academia in Cyprus, from the NRHI and from the governments of the Netherlands and Slovenia.
. This lack of engagement with the Charter is already visible in the relevant rules. Explicit reference to the Charter is present in the procedural rules (of the government or parliament) of only six Member States (Cyprus, Denmark, Finland, Germany, Greece and Netherlands [138]
Interview with an expert from the Cypriot national parliament. Finnish Government, Guidelines for Impact Assessment in Law Drafting, Helsinki, 8 May 2023, Section 2.3.1, pp. 68–74. Federal Ministry of Justice and Consumer Protection of Germany, ‘Manual for Drafting Legislation’, 2008, paragraphs 266 and 284. Presidency of the Government of Greece: General Secretariat for Legal and Parliamentary Affairs, ‘Regulatory Impact Analysis Template’, Athens, 2022. Netherlands, Government, ‘Aanwijzingen voor de regelgeving’, [Regulatory guidance], 1 July 2024.
. This appears to have repercussions on the practical relevance of the Charter in HRIAs. Experts from the majority of the countries covered by field research noted the limited use of the Charter in the procedures of HRIAs [139] Interviews with experts from the Ombuds Institution of Croatia, from academia in Cyprus and a member from the parliament of Cyprus, a representative from a CSO in Denmark, an expert of the NHRI in Germany, an expert from the parliament of Estonia, an expert from the parliament of France, an academic from Greece, a representative from the Netherlands Institute for Human Rights, an expert from the government of Slovenia and an expert from the Ombuds institution of Slovenia.
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The importance and impact of the EU Charter was not widely understood. I feel more pressured when I must comply with ECtHR judgments or our obligations under the ECHR than with the EU Charter.
Expert from the Government of Cyprus.
Between 2019 and 2023 the agency collected more than 200 examples of HRIAs and legal scrutiny documents referring to the Charter, from all Member States (except Hungary, Malta and Spain where no relevant examples were identified). Most of these examples pertain to the policy areas of data protection, health, criminal matters, non-discrimination, migration and asylum, competition, rights of the child, social affairs and employment, along with access to information. The most frequently cited Charter articles were Article 7 (respect for private and family life), Article 8 (protection of personal data), Article 21 (non-discrimination) and Article 47 (right to an effective remedy and to a fair trial). Only one example [140]
The Parliament of the Brussels-Capital Region, ‘Projet d’Ordonnance portant application des exceptions prévues à l’article 23 du règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 relatif à la protection des personnes physiques à l’égard du traitement des données à caractère personnel et à la libre circulation de ces données, et abrogeant la directive 95/46/CE (règlement général sur la protection des données)’, A-193-1 – 2019/2020, 8 June 2020.
derives from the regional level which might indicate that HRIAs are rarely carried out at the sub-national level.
In a quarter of the 200 examples, the references to the Charter are brief and superficial, and in more than half of the 200 HRIA cases analysed by FRA, the Charter did not have major relevance.
Around a third of the countries use impact assessment guidelines for legislative drafting, including questionnaires or templates that accompany reports on legislative proposals (Austria, Croatia, Cyprus, Denmark, Estonia, Finland, Germany, Greece, Netherlands, North Macedonia and Slovenia) [141] Interviews with experts from the NHRI in Germany, from the governments of Croatia, Cyprus, Denmark, Finland, Netherlands, Slovenia and North Macedonia. Information provided by the NLOs of Estonia and Greece.
. In many of these documents fundamental or human rights are not even explicitly mentioned. In Denmark, Estonia, Finland, Germany, Greece and Netherlands these documents specifically refer to the Charter.
When interviewing experts in selected countries, in seven countries (Cyprus, Denmark, France, Germany, Greece, North Macedonia and Slovenia) interviewees criticised the questionnaires or the HRIA in general, seeing it as a box-ticking exercise that does not systematically deal with or deeply analyse possible interferences with human rights [142] Interviews with experts from the governments of Cyprus, Germany and Slovenia, from a CSO in Denmark, from the NHRI in France, from the NHRI in Germany and from the NHRI in Greece and with an academic from North Macedonia.
. Similarly, according to the European Network of National Human Rights Institutions (ENNHRI), NHRIs in three Member States (France, Latvia, Sweden) stressed the lack of proper human rights impact assessments [143]
ENNHRI, The state of the rule of law in the European Union – Reports from national human rights institutions – 2024, Brussels, April 2024, pages pp. 5, 37 and 38. Information also provided by the NLO in Latvia.
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Every official who drafts a proposal is required to perform this assessment ... you cannot simply tick a box to say that it has no impact on human rights.
Expert from the government of Slovenia.
My own assessment is that the process followed is the ‘ticking of boxes’. I am not even sure if the persons completing the form are familiar with the concepts of ‘necessity’ and ‘proportionality’ …
Expert from the government of Cyprus.
Experts from four countries covered by the fieldwork noted the limited use and availability of empirical data or studies on human rights impacts of legislative proposals in HRIAs (Cyprus, Finland, North Macedonia, Slovenia [144] Interview with an expert from the governments of Cyprus, Finland and Slovenia, and with an academic from North Macedonia.
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… if we do not have adequate data … if we do not collect it, if it is not disaggregated in such a way that it allows us to monitor the potential impact on individual groups who are more often at risk of being discriminated against, then their rights are in some way threatened, we cannot even detect potential negative effects.
Expert from the government of Croatia.
indicators … do not summarise the truth. But they are a tool. In my view, they concretize the conversation, they bring to light the problems. Especially information gaps.
Expert from the government of Finland.
Time constraints in preparing HRIAs were highlighted by the experts interviewed in various countries (Denmark, Germany, Estonia, Finland, Netherlands, North Macedonia and Slovenia [145] Interviews with a representative of a CSO in Denmark, with experts from the governments of Estonia, Finland, Germany, Netherlands, Slovenia and North Macedonia.
. The need for sufficient human resources in the relevant public administration was also stressed (Croatia and Netherlands) [146] Interviews with an experts from the NHRI in Croatia, and from the government of Netherlands.
. Experts further highlighted the need for human rights training in the public administration (Croatia, Cyprus, Estonia, Finland, Germany, North Macedonia and Slovenia) [147] Interviews with experts from the governments of Cyprus, Croatia, Estonia, Finland, Germany and Slovenia, from the NHRIs in Germany and France, from academia in North Macedonia.
. The need for training on human rights was also stressed for national parliaments and expert bodies involved in the legal scrutiny of legislative initiatives (France) [148] FRA, Minutes of expert meeting of 20 June 2025.
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Every person that is drafting law should be trained in human rights. They should at least be aware that every law could affect human rights.
Expert from the NHRI in Germany.
We often rush to prepare law amendments because we’ve been tasked with doing so within a short timeframe to align with EU legislation. As a result, we don’t dedicate enough time to preparing these reports.
Expert from the government of North Macedonia.
Given that RIAs are regularly carried out at the EU level, one would expect that national lawmakers would make use of these when transposing the respective directives. However, the recent OECD report on better regulation came to the conclusion that in the absence of specific evidence-sharing mechanisms for transposition, this potential remains untapped as only around half of Member States use the Commission’s impact assessment. Most of them only do so ‘sometimes’ and less than a quarter of Member States use impact assessments conducted by other Member States to inform their transposition process [149]
OECD, Better Regulation Practices across the European Union 2025, OECD Publishing, Paris, 29 September 2025, p. 99.
. What also seems illogical is the fact that it appears not to be the standard practice of national lawmakers to complement EU-level RIAs with national RIAs to inform the position of their government when negotiating the respective EU legislation in the Council. The OECD notes in this regard that less than half of Member States have systematic requirements to conduct RIAs to inform the national negotiation position for new EU regulations and directives [150] See endnote 149, p. 75.
. The need for national RIAs complementing EU level RIAs is especially obvious when national lawmakers intend to go beyond the scope of the EU legislation, thereby doing more than what is required ‘by Brussels’ (so called ‘gold-plating’). According to the OECD report, only a handful of Members States systematically assess the impacts of gold-plating [151] See endnote 150, p. 100.
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Legal scrutiny might be carried out separately or in combination with impact assessments. Given that legal scrutiny as such is a legal exercise where impact assessment is a wider activity, legal scrutiny is usually centralised and often concentrated in the national ministry of justice, as the example of Germany shows (see below for the other actors involved), whereas the responsibility for human rights impact assessments varies and is spread over many ministries. A horizontal responsibility for human rights usually lies with the ministry of justice, for example in Denmark and Slovenia, or with the Ministry of the Interior and Kingdom Relations in the Netherlands. These ministries can provide non-binding advice across other ministries. Experts from NHRIs in France and Slovenia highlighted the lack of a dedicated interministerial interlocutor for human rights who could have a broader vision. Furthermore, experts from Slovenia and North Macedonia noted limited collaboration among different ministries on human rights issues [152] Interviews with experts from the NHRI in Slovenia and from the government of North Macedonia.
. In Finland, there is an independent impact assessment body, the Finnish Council of Regulatory Impact Analysis [153]
Finnish Government website, ‘Finnish Council of Regulatory Impact Analysis’.
, which consists of experts, and which undertakes reviews of key legislative proposals on its own initiative. Their statements have often emphasised the need to strengthen HRIAs in the individual proposals and more generally.
In addition to the legal scrutiny carried out within the legal services of the governments, there are also other bodies which carry out legal scrutiny and which are independent from the government (e.g. the Council of State in the Netherlands and France, the Legal Service of the Parliament of Denmark, the Chancellor of Justice in Estonia, the Constitutional Law Committee of the Parliament of Finland, the Constitutional Court of Germany). A specific feature of the ex ante review by the Constitutional Law Committee in Finland is the consultation of prominent experts in constitutional and human rights law in the form of both hearings and written statements.
However, these different legal scrutiny procedures are not always binding on legislators, as is the case for the advisory opinions of the Council of State in the Netherlands and France, and that of the Ministry of Justice in Slovenia.
Legal scrutiny coming from bodies independent from the government adds considerable value as they offer an alternative perspective that might differ from the view of legislators. However, legal scrutiny procedures should not be conducted as a substitute to HRIAs. For instance, in the Netherlands, the government and the House of Representatives must seek the advice of the Council of State on every legislative proposal. Although the advice is not binding, a reply must be provided. When a problematic provision is put forward, the Council of State holds a consultation with the competent minister [154] Interview with an expert from the Council of State of the Netherlands.
. However, there are instances where their mandate may be limited or is circumvented in practice. For instance, the Chancellor of Justice of Estonia reported the problem of policy decisions being made by way of general administrative orders which fall outside the Chancellor of Justice’s oversight [155] Interview with an expert from the Chancellor of Justice of Estonia.
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Legal scrutiny procedures consider the Charter more frequently than human rights impact assessment procedures. Out of the mentioned 200 human rights impact assessment documents collected between 2019–2023, 50 concerned legal scrutiny activities in the Member States (except in Hungary, Malta and Spain where no examples were reported). In 85 % of those documents, the Charter was used, along with other human rights standards, to check the legality of the interference of the proposals into fundamental rights. In the remaining instances, the Charter was either referred to as a standard to interpret the proposed national law or to interpret EU law. In about a third of cases, the Charter bore modest relevance.
Experts from France and Slovenia expressed the view that human rights checks of legislative proposals by the relevant legal scrutiny bodies were fairly limited. Experts also criticised the legal scrutiny by the Council of State of France, the Legislative Service of the Government of Slovenia and the Legal Service of the Republic of Cyprus as limited to a formal and abstract control without identifying human rights-related issues [156] Interviews with experts from the parliament and NHRI of France, and from the governments of Cyprus and Slovenia.
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When it comes to the involvement of parliaments with impact assessments of legislative proposals and evaluation of adopted legislation, the picture is diverse. More than a third of the parliaments engage in both activities (Austria, Bulgaria, France, Ireland, Italy, Lithuania, Latvia, Poland, Portugal, Spain, Sweden) [157]
European Parliament: Directorate-General for Parliamentary Research Services, Anglmayer, I., Better regulation practices in national parliaments, Brussels, June 2020, p. 62.
. Some parliaments actively conduct their own impact assessments (Bulgaria, Estonia, Finland, Hungary, Ireland, Poland, Sweden), while many parliaments limit themselves to considering the government’s assessment (Belgium, Croatia, Czechia, Cyprus, Denmark, Greece, Luxembourg, Malta, Netherlands, Romania, Slovakia, Slovenia) [158] See endnote 157, pp. 13 and 15.
. Where proposals coming from the parliament do not in principle undergo an impact assessment, there is a risk that this legislative route could be used to circumvent the obligation to carry out a HRIA by the government. Draft laws that are expected to have significant fundamental rights impacts can in that case be tabled as parliamentary proposals. Against this background, the ODIHR guidelines on democratic lawmaking for better laws suggest that parliamentary draft laws and draft amendments should also undergo an impact assessment when not required by law, especially where they have a significant impact on the fundamental rights [159]
OSCE/ODIHR, Guidelines on Democratic Lawmaking for Better Laws, Warsaw, 16 January 2024, p. 36.
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I am working on a text on the fight against drug trafficking now, which is a text on the initiative of senators, so a proposal for which I do not have an impact study, which poses a lot of problems.
Expert from the parliament of France.
More awareness is needed, especially at the level of the Parliament, which has the responsibility of adopting legislation. Perhaps a department needs to be set up in Parliament to specifically scrutinise proposed legislation for compatibility with the Charter and to do so drastically rather than superficially.
Expert from the government of Cyprus.
The decision whether an evaluation of human rights impacts of existing legislation will be carried out sometimes also depends on the available resources and time [160] Interviews with an expert of the parliament of France.
. The fieldwork results indicate that ex post human rights evaluations of existing legislation are rare and very much depend on the political context and a decision of the relevant ministry (for example, in Croatia, Denmark, Greece, Slovenia) [161] Interviews with experts from the governments of Croatia, Greece and Slovenia, from a CSO in Denmark.
or parliament (for example in France) [162] Interview with an expert from the parliament of France.
. In some countries, they are carried out when the respective law explicitly requires an evaluation [163] Interviews with experts from the governments of Croatia and Germany, and with an academic from North Macedonia.
. In the Netherlands and Slovenia, evaluations are usually done for laws which have far-reaching consequences, e.g. in case of major legislative reforms [164] Interviews with the experts from the Council of State of the Netherlands, from the Government of Slovenia.
. However, even an obligatory evaluation is not a guarantee that human rights are duly considered, as found in the countries of the field research [165] Interviews with experts from the NHRI in Croatia, from the parliament of France, and from the Governments of Germany and Slovenia.
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Specifically, in my work on drafting legislative texts proposed by MPs, having access to these evaluations would make the process much easier. For example, in areas such as human rights protection, if I had that data, I could suggest better legislative solutions. We could further refine their initiative with additional information available to ensure the proposal is as strong as possible.
Expert from the parliament of North Macedonia.
In various countries where interviews were conducted, human rights indicators are not used or are rarely used systematically and effectively in the evaluations of laws (Cyprus, Denmark, Estonia, Finland, France) [166] Interviews with an academic from Cyprus, with experts from the governments of Denmark, Estonia and Finland, from the NHRI in Greece and with the member and an expert of the parliament of France.
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The OECD has found similar issues, noting that only about half of Member States have procedures in place for evaluating adopted laws and even fewer Member States use indicators or methodologies to measure the achievement of the goals pursued by the relevant legislation. The same report also finds that most Member States do not systematically consider implementation issues when they develop new rules, nor do they systematically compare actual versus predicted impacts [167]
OECD, Better Regulation Practices across the European Union 2025, OECD Publishing, Paris, 29 September 2025, pp. 86, 87 and 115.
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Furthermore, data from the Venice Commission confirms that national parliaments’ activities on ex post evaluations vary depending on the country. In more than half of the Member States, national parliaments do not go beyond traditional parliamentary scrutiny [168]
Council of Europe: Venice Commission, ‘European decision-making processes and national Parliaments – Replies to the questionnaire’, CDL-PI(2021)012, 7 July 2021.
. According to the Venice Commission, parliaments in eight Member States carry out their own evaluations (Belgium, Bulgaria, France, Italy, Latvia, Netherlands, Poland, Sweden) [169] See endnote 115.
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The European Commission used the Recovery and Resilience Facility (RRF) [170]
European Commission, ‘Recovery and Resilience Facility’, European Commission website.
to push amendments of the relevant lawmaking procedural rules in the Member States concerning impact assessments. The RRF allows the Commission not to disburse funds if country-specific recommendations were not followed (Articles 19(3) and 20 of the RRF). These country-specific recommendations may also address reforms related to the rule of law and the Charter. For example, Bulgaria and Poland introduced rules of procedure for their national parliaments ensuring that legislative proposals from all Members of Parliament are reasoned and are accompanied by an ex ante impact assessments [171]
European Commission: Secretariat-General, ‘Positive preliminary assessment of the satisfactory fulfilment of milestones and targets related to the first payment request submitted by Bulgaria on 31 August 2022, transmitted to the Economic and Financial Committee by the European Commission’, 6 December 2022,p. 47; Commission Implementing Decision on the authorisation of the disbursement of the second and third instalments of the nonrepayable support and the second and third instalments of the loan support for Poland, C(2024) 8890 final of 11 December 2024, p. 10.
. The same milestone is also envisaged for Hungary [172]
Annex to the proposal for a Council implementing decision amending Implementing Decision (EU) (ST 15447/22 INIT; ST 15447/22 ADD 1) of 15 December 2022 on the approval of the assessment of the recovery and resilience plan for Hungary, COM(2023) 748 final of 31 November 2023, pp. 113–115.
, but has not yet been achieved [173]
Hungarian Helsinki Committee, ‘Deficiencies of the Law-Making Process in Hungary’, mapping paper, August 2025, p. 7.
. Croatia amended the rules on impact assessments, simplifying ex post impact assessments and including methodology and procedures [174]
Annex to the Proposal for a Council implementing decision amending Implementing Decision (EU) (ST 10687/21 INIT; ST 10687/21 ADD 1) of 28 July 2021 on the approval of the assessment of the recovery and resilience plan for Croatia, COM(2025) 275 final of 27 May 2025.
. In Greece, specific actions included setting up an online platform to conduct impact assessments and training the competent civil servants [175]
Annex to the Proposal for a Council implementing decision amending Implementing Decision (EU) (ST 10152/21 INIT; ST 10152/21 ADD 1) of 13 July 2021 on the approval of the assessment of the recovery and resilience plan for Greece, Brussels, COM(2025) 367 final of 30 June 2025.
.