Select Committee on European Union Sixteenth Report


The key documents

29.  The Commission proposes to reinforce the present regime by bringing fundamental rights "into even sharper focus in two key documents":

30.  In future, impact assessments should include "as full and precise a picture as possible of the different impacts on individual rights". For certain legislative proposals, the explanatory memorandum should "contain a section on the legal basis for compliance with fundamental rights".[22]

Impact assessments

31.  The development of impact assessment has been a key element in the Commission's programme for delivering Better Regulation. A new method of impact assessment was introduced in 2002,[23] integrating and replacing previous single-sector type assessment. The procedure was reviewed in 2004[24] and in June 2005 the Commission issued revised internal Guidelines on Impact Assessments.[25] With effect from 2005, all items included on the Commission's Legislative Work Programme are to be subjected to an impact assessment. As a first step in the process all Work Programme items must be accompanied by a Roadmap[26] providing an estimate of the expected timetable for the proposal and detailed information about how the impact assessment is to be taken forward.

32.  The aim of an impact assessment is to identify and assess the problem at stake and the objectives pursued. It should also identify the main options for achieving the objective and analyse their likely impacts in the economic, environmental and social fields. The advantages and disadvantages of each option should be examined and possible synergies and trade-offs described.

What is Impact Assessment?

Doing an IA involves answering a number of basic analytical questions: What is the nature, magnitude and evolution of the problem? What should be the objectives pursued by the Union? What are the main policy options for reaching these objectives? What are the advantages and disadvantages of the main options? And, last but not least: How could future monitoring and evaluation be organised? An IA need not involve a long and detailed study in every case … but it should allow for an informed debate in all cases.
The IA should not be confused with the policy proposal or with the explanatory memorandum which precedes the proposal. It gathers and presents evidence that helps in determining possible policy options and their comparative (dis)advantages. The IA work should run in parallel with and feed into the development of the Commission's proposal. The College of Commissioners will take the IA findings into consideration in its deliberations. The IA will not, however, dictate the contents of its final decision. The adoption of a policy proposal is a political decision that belongs solely to the College, not to officials or technical experts.
Source: Impact Assessment Guidelines 15 June 2005 SEC(2005)791.

33.  The impact assessment accompanies the draft proposal submitted to Commissioners. If the proposal is adopted by the Commission the impact assessment will be annexed (usually with the designation and status of a Commission Staff Working Document) to the proposal sent to the Council and the Parliament. It will also be published on the Europa impact assessment website.

34.  New Impact Assessment Guidelines were introduced very soon after the Communication—the drafting of the revised Guidelines was conducted in parallel (Q 9). They draw attention to the fact that fundamental rights may place legal limits on the Union's right to take action in response to a problem.[27]

Scope of application

35.  The Communication does not extend the Commission's obligations to produce impact assessments. Impact assessments are required for all items on the Commission's Work Programme, though the Commission can always prepare an impact assessment for an item that is not listed on the Work Programme. The Guidelines merely refer to this being done "on a case-by-case basis".[28]

36.  Statewatch pointed out that only a small percentage of Commission proposals were at present subject to impact assessment. They also noted that some recent proposals had lacked a detailed explanatory memorandum. Statewatch gave as an example the proposals for the Schengen Information System II (SIS II).[29] These had been issued in May 2005 (a month after the present Communication), but were not subject to an impact assessment and did not have an explanation of the individual articles of the proposals (p 51).

37.  JUSTICE also regretted the fact that not every proposal carried an impact assessment (pp 25-26). Dr Metcalfe, for JUSTICE, said: "We find the Communication's justification for not requiring an impact assessment in every case to be unsatisfactory. While it may be correct that some problems only arise 'with detailed implementing provisions or with very specific elements of a legal instrument which an impact assessment could not forecast,' it does not seem to us to be an adequate reason for not carrying out the impact assessment in the first place" (Q 73). JUSTICE did not believe any particular subject area of legislation should be ruled out a priori as unsuited for impact assessment and called on the Commission to set out the criteria for deciding whether to subject specific legislative proposals to impact assessment (p 26).

38.  It would be helpful if, as JUSTICE suggested, the Commission could identify and publish the criteria, and any guidance given, for deciding to carry out an impact assessment of a proposal not appearing on the Work Programme. In principle all legislative proposals should be subject to impact assessment. Therefore, in any instance where no impact assessment has been carried out, and especially any proposal relating to freedom, security and justice issues, the Commission should set out the reasons for not doing so in the explanatory note accompanying the proposal.

Third Pillar proposals

39.  A major category of documents falling outside the requirement to have an impact assessment is Third Pillar measures (Police and judicial co-operation in criminal matters) introduced by Member States. Some such proposals, Statewatch contended, should clearly have been subjected to such an assessment (e.g. the proposed Framework Decision on data retention) (p 51). Baroness Ashton of Upholland explained: "There is no uniform method for Member States to explain the human rights compliance of their proposals, but it is the responsibility of each Member State to review the consistency of their proposals with human rights standards, and to ensure that their proposals are in line with the principles of subsidiarity and proportionality. Once a Member State proposal goes to a working group for negotiation, human rights compliance (and especially compliance with Article 6 TEU), is a key issue for discussion." (p 47)

40.  Both ILPA and JUSTICE considered that there was a lacuna that needed to be filled. Dr Metcalfe said: "Just as the Commission should be carrying out impact assessments in every case, there is no reason why impact assessments should not be carried out by Sweden or by the United Kingdom when they are proposing measures". But JUSTICE accepted that the Communication was unable to cover what the Member States should do when bringing forward proposals under the Third Pillar (Q 73).

41.  It is our experience that Third Pillar measures commonly raise issues relating to fundamental rights. We have no doubt that impact assessments are particularly important in respect of such proposals. Indeed the failure of Member States to provide background information and explanations for the measure being proposed makes our own scrutiny work that much more difficult and places a further burden on the Government faced with our requests for clarification.[30] We therefore recommend that Member States should carry out impact assessments before bringing forward any proposal under the Third Pillar. Any such proposal should also be supported by a full explanatory memorandum including a section dealing with fundamental rights.


42.  A separate issue relating to the scope of the requirement for impact assessments is that of comitology (the procedure by which subordinate legislation or decisions is made by the Commission subject to the supervision of committees made up of representatives of the Member States). The issue is touched upon briefly in the Communication. It is acknowledged that fundamental rights issues can arise in the Commission's exercise of implementing powers. The Communication states that the preparation of Commission regulations and decisions is subject to the interdepartmental consultation procedure. There would, however, be no requirement to produce an impact assessment or an explanatory memorandum.[31]

43.  Dr Ladenburger, for the Commission, emphasised that impact assessment was not itself the means of checking compliance with fundamental rights but was a tool for preparing the factual material upon which such legal verification can take place. Where an impact assessment was not conducted for a legislative proposal the Commission Services would nonetheless be required to evaluate the impacts on fundamental rights (Q 57).

44.  The Government did not believe that the Communication raised any particular problems for delegated or implementing legislation but accepted that it was necessary to see how the Communication worked out in practice. Its application to comitology was a matter to be kept under review (Q 115). We agree.

The checklists

45.  The "checklists" (Tables 1-3 in the Impact Assessment Guidelines) of the impact assessment address three main issues: economic, social and environmental impacts. There is no separate or new category to deal with fundamental rights. This is a deliberate decision on the part of the Commission. The approach taken by the Communication, and by the revised Guidelines, is to incorporate additional questions on fundamental rights within the existing three Tables. The Communication explains: "The reason for this approach is that the fundamental rights of the Charter are diverse and cut across all sectors. Thus, impacts on, say, rights of ownership, on the freedom to run a business, are an occupational freedom, are best detected and assessed within the section 'Economic Impacts'. By the same token, questions on social rights should be dealt with in the section on 'Social Impacts'".[32]

"Proposals must be prepared on the basis of an effective analysis of whether it is appropriate to intervene at EU level and whether regulatory intervention is needed. If so, the analysis must also assess the potential economic, social and environmental impact".

Commission White Paper on European Governance, 2001, COM(2001) 428

46.  Dr Ladenburger, for the Commission, said: "We have, in fact, tried to include new questions under all three of these headings and particularly under economic and social". The questions touch on a variety of matters including equal opportunities, discrimination, personal data and property rights (QQ 12-13). The Communication states: "This should ensure that fundamental rights impacts are identified comprehensively and that a proportionality analysis is carried out in relation to their scope and extent".[33]

47.  ILPA were "somewhat disappointed that the question of fundamental rights still does not rate a separate category alongside these other three impact categories, nor even a clearly separate particular sub-heading within the broader category of social impacts (where it is largely located now)" (p 23). JUSTICE considered the lack of a fourth category to be "quite unfortunate" (p 26). Dr Metcalfe said: "we consider the categories which have been relied upon by the Communication, that is to say economic, social and environmental impacts, to be profoundly unsatisfactory. We do not think it is possible to capture the full range of possible impacts on fundamental rights" (Q 73).

48.  Statewatch pointed out that many EU measures, particularly in the field of justice and home affairs, touch on civil rights (civil liberties). Statewatch doubted whether these rights could be clearly measured within the heads of "economic" or "social" impact and suggested that a case specific category of analysis within impact assessments should be developed for this purpose (p 51). The Law Society said: "It is important that Commission officials consider the Charter as a whole irrespective of the specific questions in the impact assessment guidelines, as not all rights in the Charter are referred to in the questions and not all fit easily into economic, environmental and social impacts" (p 50). JUSTICE argued similarly (p 26).

49.  The Government, on the other hand, believed that the approach adopted in the Communication was a good place to start (Q 112). Baroness Ashton of Upholland said: "I think we will begin to see perhaps greater openness which will be to the good, but we will have to wait and see how this works out to be completely sure of the effect" (Q 111). Much would depend on how effective the "checklists" were in practice in identifying fundamental rights issues (Q 112).

50.  We share the doubts as to whether the current categories of economic and social rights issues will be sufficient to provide for the analysis of all relevant fundamental rights. We regret that the Commission has not taken the opportunity to include a separate (fourth) section for fundamental rights in impact assessments. We are not persuaded by the argument that a separate section would result in "needless repetition".[34] The form of the impact assessment has been developed from that initially devised for environmental cases and there is already crossover between the current threefold (economic, social and environmental) division. We believe that it would be more helpful if all fundamental rights issues were addressed in a separate section. This would help to avoid the risk of rights being overlooked in some cases.

51.  A further concern expressed by ILPA was that the impact assessment might be used to justify a decision to go ahead rather than simply inform the decision-taking. Dr Toner said: "From looking at the literature of environmental impact assessments there is some concern that in some contexts this operates in such a way as to simply permit a developer to justify what they wish to do in practice. It is not always effective in preventing or allowing concerns to be raised about potentially environmentally damaging development and sometimes simply allows the developer to justify what it wishes to do … We hope that this will not be the case here transferred into the context of fundamental rights assessments, that this will just permit political decisions essentially that have already been made or political preferences that are there within the Commission or within other institutions to be justified without adequate and proper scrutiny" (Q 80).

52.  It is a matter of concern that the impact assessment might be misused in such a way. The purpose of the impact assessment, it will be recalled, is to inform a decision whether to go ahead rather than merely justify a decision to go ahead. This is something on which we will need to keep an eye.

Justifying exceptions

53.  ILPA expressed concern that the relationship of fundamental rights and exceptions to them seemed to be in a process of change and that the balance between them was being recast giving a weight to the exceptions and rights which elevated the exceptions to the same position as the rights (p 24). ILPA considered this to be a "worrying and negative development" (p 24).

54.  This is certainly a matter over which a careful watch will also need to be kept. As mentioned above, we believe that it would be helpful if all fundamental rights issues were addressed in a separate prominent section of the impact assessment. This might go some way in countering the perceived shift in the balance between rule and exception.

Relationship with Better Regulation

55.  ILPA drew attention to the tension between human-rights proofing and competitiveness. ILPA said: "Reading the documentation on Impact Assessments, it comes across quite clearly that this integrated impact assessment initiative is intended to further better regulation, competitiveness, and sustainability. There is bound to be some scepticism about the extent to which strategies developed with these aims in mind can be expected to translate comfortably to the rather different context of fundamental rights protection" (p 23).

56.  The Government did not believe that there was necessarily a tension between economic policies and fundamental rights. The Commission, when formulating a proposal, would need to consider both very carefully (Q 114). We agree. Having a separate category for fundamental rights in impact assessments would greatly assist in such consideration by the Commission.

57.  It is clear that the preparation of impact assessments has substantial resource implications for the Commission.[35] The need to identify and examine the fundamental rights implications of proposals during that process will increase that burden. But it is a cost which we believe is necessary if better regulation is to be achieved. We return below to the need for extra guidance for Commission officials.

Explanatory memoranda

58.  Section IV of the Communication is entitled "Taking fundamental rights into account in the explanatory memorandum". It points out that there is presently no systematic practice applicable to proposals raising fundamental rights questions.

59.  There is a link between the explanatory memorandum and the use of the Charter recital (the statement in the preamble to an instrument that it is compatible with the Charter. See below). The Communication proposes that, in future, whenever a legislative proposal contains the standard Charter recital the explanatory memorandum must include a section briefly summarising the reasons pointing to the conclusion that fundamental rights have been respected. Such a rule is aimed at providing a public account of the Commission's legal scrutiny of respect for the rights secured by the Charter and at enhancing the effectiveness of internal scrutiny.[36]

60.  We welcome the inclusion in the explanatory memorandum of a special section summarising the reasons for concluding that fundamental rights have been respected. The Commission is to be commended. Its strategy is not, however, without risk: disclosing its position in the explanatory memorandum may increase the Commission's exposure to criticism and challenge.

Consequence of amendments

61.  We queried what would happen if the proposal was amended during the legislative process in a way which further impinged on fundamental rights. Would the explanatory memorandum be amended?

62.  The Commission acknowledged the point. Dr Ladenburger said: "The legislator itself, as you know, does not accompany the final act by an explanatory memorandum, of course. There the recitals are the motivation of adopted legislation" (Q 34). Formal amendments made by the Commission during the legislative process would be accompanied by an explanatory memorandum. Dr Ladenburger said: "It is a matter for reflection for the Commission how the explanatory memoranda may be more easily made accessible to the public, although they are, of course, published on our websites, but perhaps there is scope for improvement as to a coherent presentation of adopted legislation together with its legislative history" (Q 37).

63.  Baroness Ashton of Upholland did not think it appropriate to comment on how the explanatory memorandum might be kept up to date as a legislative proposal proceeded on its course through the Council and the Parliament. But the Minister acknowledged that the memorandum would not be much use to anybody if it was out of date because the Council or Parliament had amended the original proposal (QQ 119-20).

64.  The 2003 Inter-Institutional Agreement on Better Regulation already contemplates impact assessments being prepared for amendments during co-decision.[37] This only partly addresses the problem. Serious thought needs to be given to how explanatory memoranda and other supporting documentation are kept up to date as proposals proceed through the legislative machine. It would be desirable, where changes are adopted, for the institution or institutions concerned to provide a supplementary memorandum explaining the change and how compliance with fundamental rights is assured. We can think of cases (such as the European Arrest Warrant and the proposed Directive on Asylum Procedures) where this would be especially helpful and time-saving.

Extra guidance for Commission officials

65.  The Communication recognises that scrutinising legislation to ensure compatibility with the provisions of the Charter and the ECHR requires "specific expertise". It is envisaged that that scrutiny will commence within the lead department itself and then be continued, during the interdepartmental consultation procedure, principally by the Legal Service. The lead department also has to ensure that the Directorate-General for Justice, Freedom and Security is involved in the interdepartmental consultation whenever a proposal is liable to raise issues relating to fundamental rights (in this respect the Communication consolidates current practice—Q 56). The External Relations Directorate-General should also be involved where a proposal might affect the fundamental rights of third country nationals outside the Union.[38]

66.  In practice the Legal Service of the Commission has and seems likely to continue to have a key role to play in scrutinising Commission proposal to ensure their legality. But clearly lead departments within the Commission must have some awareness and knowledge of fundamental rights if the methodology prescribed by the Communication is to be successful in raising standards of compliance.

67.  Dr Ladenburger, for the Commission, explained that the Legal Service had developed internal training of all its 130 lawyers on fundamental rights and on the Charter and was currently envisaging offering the same training sessions to lawyers in the legal affairs units within directorates-general. In addition, references to the Communication and guidance would be included in the Commission's internal manual of procedures and manual on legislative drafting. There would also be a reminder in the Commission's IT template for legislative drafting (Q 22).

68.  Both JUSTICE and ILPA were clear that further and better guidance would be needed to give effect to the Communication (Q 75). Dr Toner, for ILPA, said: "We understand that a document has been prepared about how to do impact assessments on fundamental rights and how to deal with these issues within the impact assessment framework" (Q 81).

69.  We do not underestimate the importance of Commission staff being adequately trained and supported. Public confidence will be increased if that process is visible and open to comment and review. In particular, any guidance issued by the Commission should be made publicly accessible. This would go a long way to meet some of the concerns expressed by witnesses.

No independent check on Commission

70.  Statewatch described the Commission's procedure as being "self-regulating" (the Commission monitoring itself) without proper external scrutiny (p 52). The absence of independence in the methodology set out in the Communication was linked by ILPA with their criticism that it lacked democratic legitimacy because of the absence of Parliamentary involvement or control (Q 62).

71.  Dr Ladenburger, for the Commission, emphasised that the aim of the Communication was to provide an explanation of what was happening inside the Commission. The Communication did not exclude the Commission from drawing on external expertise, such as the present Network of independent experts or, in the future, the Fundamental Rights Agency (Q 17). Dr Ladenburger also drew attention to the special position of the Legal Service: "It is not a political service, it is an independent service and it is its task … to function as an independent reviser of fundamental rights questions" (Q 24).

72.  Statewatch proposed two ways to overcome the lack of external scrutiny: ensuring, first, that all the documentation leading to compliance (including interdepartmental consultation on legal opinions) were publicly available for inspection, and, secondly, that national and European parliaments created committees empowered to scrutinise implementation and practice and make proposals for amendment (p 52).

73.  We note the criticism from some witnesses that the Communication involves only internal monitoring by the Commission and therefore there is no independent control or supervision, even though the Legal Service is closely involved. As we explain in the next Chapter, the European Parliament could have a greater involvement. There is also a continuing role for national parliaments.

Recitals/compliance statements

74.  The 2001 Decision set out a standard form one sentence recital to be used in all cases where the instrument affected fundamental rights and added that, in appropriate cases, a second sentence might be included which would identify the rights of particular relevance and concern in the instant case.
2001 Decision—standard form Charter recital

Legislative proposals or draft instruments which have a specific link with fundamental rights will incorporate the following recital as a formal statement of compatibility:
"This act respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union."
When certain rights and/or individual principles of the Charter are specifically involved, a second sentence may be added:
"In particular, this [act] seeks to ensure full respect for [right XX] and/or to promote the application of [principle YY] / [Article XX and/or Article YY of the Charter of Fundamental Rights of the European Union]."

75.  Dr Ladenburger explained that in past practice the second sentence has been used more in cases where a legislative measure served to promote or implement a particular fundamental right and less so when there was simply one fundamental right particularly affected by the measure being proposed. Dr Ladenburger confirmed that the Commission intended to continue to use the first sentence as a standard recital. He thought that greater use might be made of a second sentence to identify a particular right or rights affected (Q 31).

76.  The Law Society considered that the Communication did "little more than provide new guidelines for deciding which legislative proposals should contain the Charter recital. These will not necessarily increase the instances in which the recital is inserted, but simply 'guide current practice'" (p 50). JUSTICE, however, were more positive about this development but considered that the criteria put forward to guide current practice when the Charter recital should be used needed to be explained in more detail (Q 76, p 26).

77.  As mentioned above, witnesses generally welcomed the statement in Part IV of the Communication that whenever a legislative proposal contains the Charter recital, the explanatory memorandum should include a section briefly summarising the reasons pointing to the conclusion that fundamental rights have been respected.[39] Two questions arise.


78.  As already mentioned, the changes to the explanatory memorandum are most welcome but the information may need to be added to or qualified if changes are made to the text during the legislative process. We raised the question whether it might be preferable to employ a more detailed recital, tailored to the specific legislation in question.

79.  Dr Ladenburger, for the Commission, did not exclude the possibility. The issue was how succinct the recital should and could be. In his view, there might be problems "because recitals are to be quite short and it is perhaps doubtful whether a convincing argument can be included in a recital". That was why the Commission thought that the more appropriate place would be its explanatory memorandum. Depending on how successful the new procedure was in succinctly demonstrating fundamental rights compliance, then it would be for the legislators to consider whether it would be possible and advantageous to translate that into short language in the recitals
(QQ 34, 41).

80.  JUSTICE said that "the standard recital would be acceptable so long as the explanatory memoranda set out in detail the reasons" (Q 85).

81.  Further consideration needs to be given to the possibility of incorporating more specific and detailed recitals addressing any fundamental rights issues of legislation. But a recital, even if substantially expanded beyond the standard Charter form, may be no substitute for the more coherent approach proposed for explanatory memoranda provided that they are readily accessible. It is for consideration, we believe, whether explanatory memoranda, though forming no part of legislation, should be attached, as a matter of course, to the legislation. This could be done perhaps by a suitable footnote reference against the Charter or other recital in the preamble.


82.  ILPA said: "Our concern, however, is that any compatibility assessments/statements/certificates and the like must not create a prima facie legal presumption that the legislative act is in fact fundamental rights compliant. The aggrieved individual who claims that his or her fundamental rights have not been respected must not be faced with a further legal hurdle to overcome in the quest for redress on account of the existence of a rights impact assessment or a fundamental rights certificate" (p 22). ILPA expressed concern that such statements could be used later as a "buffer" and act as an obstacle in subsequent judicial scrutiny (p 24). Dr Toner said: "these processes should not add spurious legitimacy that is not really deserved by the reality of what has gone on" (Q 79).

83.  Much will depend on the approach and attitude of the courts. What seems clear is that to date formal statements in recitals have not, as ILPA said, stopped overt condemnation of measures, particularly those in the area of immigration and asylum law, and their challenge, or threat of challenge, in the Court of Justice on grounds of incompatibility with fundamental rights.[40]

21   There may, however, have been an earlier "working draft" used by the lead department in its public consultations. Back

22   Communication, at para 9. Back

23   See Communication from the Commission on Impact Assessment. COM(2002) 276 final, which was part of the Better Regulation Action Plan (COM(2002) 278 final). Back

24   Commission report on Impact Assessment: Next steps-In support of competitiveness and sustainable development. SEC(2004) 1377 of 21 October 2004.  Back

25   Impact Assessment Guidelines. 15 June 2005. SEC(2005) 791. Back

26   SEC(2004) 1175. Back

27   Impact Assessment Guidelines. 15 June 2005. SEC(2005) 791, Part III, at para 1.3 (Does the Union have the right to act?). Back

28   Impact Assessment Guidelines. SEC(205) 791, at para II.1. Back

29   The SIS is a computerised database of information relating to immigration and law enforcement. The United Kingdom has opted into only parts of the Schengen acquis dealing with law enforcement. The draft Council Decision and Regulations concerning the establishment, operation and use of the second generation Schengen Information System (SIS II) (docs. COM(2005) 230 final and COM(2005) 236 final) are under scrutiny in Sub-Committee F (Home Affairs). Back

30   A recent example is the Draft Council Framework Decision on the European Enforcement Order and the transfer of sentenced persons between Member States of the EU (Doc 5597/05). This is an initiative of Austria, Finland and Sweden. The proposal is currently held under scrutiny while the Committee seeks to ascertain the practical problems which the proposal seeks to address, in particular as they may relate to the European Arrest Warrant. Correspondence with Ministers on this proposal can be found on the Committee's website. Back

31   Communication, at para 16. Back

32   Communication, at para 19. Back

33   Communication, at para 18. Back

34   Communication, at para 19. Back

35   See evidence of Commissioner Verheugen to the Select Committee during its inquiry into Better Regulation (Q 88). See footnote 6. Back

36   Communication, at paras 23-4.  Back

37   The Inter-Institutional Agreement on Better Lawmaking was signed by the European Commission, the European Parliament and the Council in December 2003. The Agreement provides a framework for simplifying and reducing the volume of Union legislation. Under the Agreement the three institutions are committed to improve legislative planning, transparency and co­ordination and to take forward parts of the Better Regulation Action Plan which require co-operation between the Community institutions. Back

38   Communication, at paras 12 and 15. Back

39   Communication, at para 23. Back

40   ILPA referred to the Family Reunification Directive and the Asylum Procedures Directive. Back

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