The Commission has recently adopted a Communication setting out a new mechanism to ensure that its legislative proposals are systematically and rigorously checked for compatibility with the EU Charter of Fundamental Rights.
The Communication is as much concerned with raising awareness, both within and outside the Commission, of the need to check that draft legislation is compatible with fundamental rights, as it is with changing processes within the Commission.
Improvements are, however, to be made in relation to the preparation and content of impact assessments, which precede, and explanatory memoranda, which accompany, Commission legislative proposals. These changes are most welcome.
But attention also needs to be paid to continuing to check compliance as and when legislative proposals undergo amendment during the course of negotiation in the Council and the Parliament. Recitals and supporting explanatory memoranda should be updated as necessary so as to explain how the details of the measure in question respect the Charter.
Examination of the Communication reveals the absence of (i) any form of independent check on the Commission's fundamental rights analysis and conclusions, and (ii) any compliance mechanisms in the legislative procedures of the Council and the Parliament. The report makes a number of recommendations for dealing with these shortcomings. The European Parliament and national parliaments may have a part to play. The role of the proposed Fundamental Rights Agency as scrutineer also needs to be considered.
The Communication also aims at raising awareness of the fundamental rights implications of EU legislation and encouraging citizens and civil society to assert their fundamental rights when the Commission is consulting on a proposal. But the Communication contains no practical suggestions to help outsiders make such an input and the Report recommends that there should be clearer mechanisms to assist the citizen and NGOs to assert fundamental rights.
The Report concludes that the Communication is nonetheless a positive step that should increase awareness of the Commission's procedures and encourage interested parties to raise fundamental rights concerns when the Commission is developing policy and legislative proposals.