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HRIAs require time, knowledge and resources. In certain situations, such as in cases of emergency, it might be very challenging to carry out a substantial HRIA. However, this report highlights the benefits of conducting effective HRIAs, both ex ante and ex post, of legislation as they help to prevent or minimise negative impacts on human rights and thereby contribute to the quality, sustainability and efficiency of lawmaking. They contribute to ensuring compliance with human rights law and can help promote their application, including – in the EU context – the application the Charter. At the same time, the report shows that there is a rather inconsistent landscape of legal provisions and practice on legal scrutiny, HRIAs and evaluations across the Member States. Currently human rights impacts are not systematically and efficiently considered in the lawmaking process. Moreover, the Charter is frequently overlooked in national HRIAs, thereby unnecessarily increasing the risk that Member States might violate EU fundamental rights when legislating within the scope of EU law. The situation is very different at the EU level, where the Charter plays a very visible role. EU legislators consider fundamental rights as part of better lawmaking, and the Commission adopted guidelines to ensure that the Charter plays a key role when assessing fundamental rights impacts when proposing EU legislation. Nevertheless, there is also potential for improvement at the EU level: it is concerning that HRIAs are often too superficial and sometimes even entirely absent in the context of important legislative proposals, as examples from EU migration law show. With this context in mind, the report concludes below with ways forward for legislators both at the EU and national levels.
- The Commission should continue implementing the measures foreseen in the strategy to strengthen the application of the Charter in the EU. These measures should ensure that fundamental rights impact assessments are conducted systematically and thoroughly for every legislative proposal, unless it can be safely presumed from the outset that the legislative proposal has no links to and potential impacts on fundamental rights. For this purpose, the Commission should strengthen in-house fundamental rights expertise across services, including amongst the members of the Regulatory Scrutiny Board.
- The Commission should consider revising the better regulation toolbox so that any absence of an impact assessment comes with a reasoned justification. The better regulation toolbox should also ensure that key revisions of EU legislation relevant to fundamental rights can be substantially based on the results of an evaluation of the human rights impacts of the current legislation.
- To expand the evidence base of its impact assessments, the Commission should ensure that its public consultations with citizens and CSOs are as inclusive and accessible as possible, for example by translating key documents into the EU’s official languages and making them easy to read for people with disabilities. Moreover, the better regulation guidelines and toolbox should require mandatory and timely consultations with fundamental rights expert bodies and institutions whenever a legislative proposal is likely to have serious impacts on EU fundamental rights. These consultations should include the European networks of national human rights institutions, ombuds institutions and equality bodies, along with international and regional human rights organisations. Moreover, the Commission should strive to fully implement the better regulation rules and show in the impact assessment how it has considered the views of citizens and civil society in the selection of the preferred regulatory option.
- The European Parliament, the Council and the Commission are invited to consult the EU Agency for Fundamental Rights when assessing fundamental rights impacts or when considering the compatibility of certain provisions with fundamental rights standards and to use its data, research and expertise in that regard. They are further encouraged – especially once a legislative proposal has been tabled – to use the procedure under Article4(2) of the agency’s Founding Regulation and request opinions during the legislative procedures in accordance with Article4(1)(d) of this regulation.
- When amending the Interinstitutional Agreement on Better Law-Making, the EU institutions should envisage the consultation of independent expertise, including that of the agency and the ENNHRI, in a consistent manner.
- The Council could organise an exchange of experiences on fundamental rights impact assessments, procedures of legal scrutiny and the evaluation of laws amongst all Member States. The European Parliament could organise similar exchanges with national parliaments to allow for mutual exchanges and to foster a culture of parliamentary HRIAs. These exchanges could be supported by FRA.
- To support national reforms in the process of legal scrutiny, ex ante and ex post HRIAs (see below), the EU should ensure that relevant tools such as country-specific recommendations in the context of the Recovery and Resilience Facility or national and regional partnership plans effectively contribute to such steps. The EU should also ensure that such national reforms can be co-financed with relevant EU funds.
- To ensure that fundamental rights expertise and practical experiences from the ground effectively and timely inform the fundamental rights impact assessment processes, the Commission could use its annual report on the application of the Charter or its rule of law reporting cycle highlighting the extent to which the Member States involve fundamental rights experts and bodies (human rights/ombuds institutions, equality bodies) and CSOs (which also include academia and representative organisations of people or groups) in these processes.
- Member States should ensure that throughout the legislative process fundamental and human rights are respected, protected and fulfilled. When conducting HRIAs, it is important not to single out certain rights or to focus only on potential impacts on certain groups of people so that the potential relevance of the full spectrum of fundamental rights is considered. Member States could draw inspiration from existing tools and guidelines on human and fundamental rights impact assessment, such as those from the Commission, the Council of Europe or the OSCE. Whenever a legislative proposal falls within the scope of EU law, special attention needs to be given to the Charter, which should be explicitly referred to in the respective rules and guidelines so as to avoid overlooking the Charter and excluding its potential added value.
- The fact that a legislative proposal originates from the national parliament and not the government should not lead to a situation where HRIAs are not carried out. Where the legislator considers that no HRIA is needed, it should provide sufficient reasons as to why it considers that no relevant impacts are to be expected.
- Where the national legislator works on legislation transposing EU law, the starting point of the national impact assessment should be the impact assessment already carried out at the EU level. While the EU-level HRIA will provide useful hints regarding potential concerns and problematic elements, the national HRIA will in addition have to consider dimensions linked to the specific national context, including possible side-effects of ‘gold-plating’ (cases where the national legislator goes beyond the requirements laid down in the EU legislation).
- The consideration of human rights across the legislative procedure can be ensured with the early involvement in policy planning of a focal point for human rights, an interministerial network and advisory and consultative bodies including CSOs. It can also be ensured with the advice of independent national human rights and ombuds institutions or equality bodies participating in the process of their own accord. Moreover, the human rights capacity of the legislator could be strengthened by providing training on human rights (including the Charter) to ministries and parliamentary officials and by increasing interinstitutional cooperation.
- Cooperation with independent fundamental rights expert bodies can be especially useful to ensure that fundamental rights considerations are not overlooked in the legislative process. In this regard inspiration can be drawn from the area of equality where Member States are obliged under EU law to set up procedures ‘to ensure that the government and relevant public authorities consult equality bodies on legislation, policy, procedure and programmes’ related to equality and non-discrimination (Articles15 of Directive (EU) 2024/1499 of 7May 2024 and Directive (EU) 2024/1500 of 14May 2024 on standards for equality bodies). Member States should ensure that, for every legislative proposal, national human rights and ombuds institutions and equality bodies are informed in a timely manner and given adequate time and resources to provide feedback where they deem it is necessary.
- To ensure a sufficient evidence base for any impact assessment exercise, Member States should ensure that in the legislative process relevant CSOs, including self-advocacy organisations representing people with disabilities, are informed in a timely manner, involved in the legislative process and provided with enough time to comment on laws and regulations. The impact assessment or the text accompanying the legislative proposal should show how the results of the consultation of independent fundamental rights expert bodies and civil society were considered.
- National governments, parliaments or other institutions or bodies in charge of evaluations of adopted legislation, should strive to conduct evaluations for all laws that have considerable impacts on human rights. The decision not to conduct evaluations should be evidence-based. An evaluation should be conducted especially when an accelerated procedure was used to adopt the law without a HRIA. Evaluations of adopted legislation should include the expert views of national human rights and ombuds institutions and equality bodies. Finally, evaluations of legislation should use human rights indicators to measure the effectiveness of the adopted legislation. FRA could support the Member States in establishing mechanisms for the evaluation of legislation, by making available its human rights indicators, survey data and its methodologies for data collection.