Communication from the Commission - Compliance with the Charter of Fundamental Rights in Commission legislative proposals - Methodology for systematic and rigorous monitoring
Date: 2005-04-27
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, European Commission, drafting of EU law, fundamental rights, human rights

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.4.2005 
COM(2005) 172 final 

COMMUNICATION FROM THE COMMISSION 

Compliance with the Charter of Fundamental Rights in Commission legislative 
proposals 

Methodology for systematic and rigorous monitoring 

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COMMUNICATION FROM THE COMMISSION 

Compliance with the Charter of Fundamental Rights in Commission legislative 
proposals 

Methodology for systematic and rigorous monitoring 

Introduction 

On  13  March  2001  the  Commission  decided1  that  any  proposal  for  legislation  and 
any draft instrument to be adopted by it would, as part of the normal decision-making 
procedures,  first  be  scrutinised  for  compatibility  with  the  Charter  of  Fundamental 
Rights  of  the  European  Union2.  It  also  decided  that  legislative  proposals  and  draft 
instruments having a specific link to fundamental rights would incorporate a recital 
as a formal statement of compatibility. The legislature now automatically inserts this 
recital3. 

It has since become current practice to refer to the fundamental rights secured by the 
Charter  in  interdepartmental  consultations.  The  Commission  has  in  certain  cases 
referred  to  compatibility  with  the  Charter  in  the  explanatory  memoranda  to  its 
legislative proposals (notably in the area of freedom, security and justice). In many 
other  cases,  however,  the  recital  has  been  the  only  evidence  of  respect  for 
fundamental rights. 

instruments,  notably 

The  Commission  has  meanwhile  equipped  itself  with  new  horizontal  policy 
impact  assessment  form.  All  major 
programming 
Commission initiatives, especially legislative initiatives, must be accompanied by an 
integrated  assessment  of  their  probable  impact.  The  Commission  has  decided  that, 
with effect from 2005, all legislative and major policy-defining proposals contained 
in its annual Legislative and Work Programme will be subject to impact assessment4. 

the 

Lastly,  the  Charter  was  incorporated  into  the  Treaty  establishing  a  Constitution  for 
Europe, signed on 29 October 2004. 

On  the  basis  of  the  foregoing  factors,  this  document  sets  out  a  methodology  for 
ensuring  the  Charter  is  properly  implemented  in  Commission  proposals.  The 
methodology has a threefold objective:  

SEC(2001) 380/3. 
The Charter was solemnly proclaimed by the Presidents of the European Parliament, the Council and 
the  Commission  on  7  December  2000  (OJ  C  364,  18.12.2000,  p. 1).  It  was  incorporated  with  minor 
changes  as  Part  II  of  the  Treaty  establishing  a  Constitution  for  Europe,  signed  on  29  October  2004 
(OJ C 310, 16.12.2004, p. 1). Although it is not, therefore, legally binding, it contains the fundamental 
principles which have been held to be binding in case-law as general principles of Community law. 
The  recital  is  worded  as  follows  (SEC(2001)  380/3):  “This  [act]  respects  the  fundamental  rights  and 
observes the principles recognised in particular by the Charter of Fundamental Rights of the European 
Union”. In appropriate cases 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).” 
See the Commission work programme for 2005 - COM(2005) 15 final. 

I. 

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4. 

5. 

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– 

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to allow Commission departments to check systematically and thoroughly that 
all the fundamental rights concerned have been respected in all draft proposals; 

to  enable  Members  of  the  Commission,  and  the  Group  of  Commissioners  on 
Fundamental Rights, Anti-discrimination and Equal Opportunities in particular, 
to  follow  the  results  of  the  scrutiny  and  to  promote  a  “fundamental  rights 
culture”; 

to  make  the  results  of  the  Commission’s  monitoring  of  fundamental  rights 
more  visible  to  other  institutions  and  to  the  general  public.  The  Commission 
should  be  seen  to  set  an  example,  which  will  also  give  it  credibility  and 
authority  in  monitoring  respect  for  fundamental  rights  in  the  activities  of  the 
two branches of the legislature. 

Systematic  departmental  monitoring  of  respect  for  fundamental  rights  at  the 
preparatory and interdepartmental consultation stages 

The  main  aim  of  the  methodology  is  to  allow  Commission  services  to  check  all 
Commission  legislative  proposals  systematically  and  rigorously  to  ensure  they 
respect all the fundamental rights concerned in the course of normal decision-making 
procedures. 

These checks are already carried out when the lead department (service chef de file) 
draws up the draft and, in particular, during the interdepartmental consultation where 
the  Legal  Service  checks  for  compliance  as  an  integral  part  of  its  verification  of 
legality.  This  matches  the  approach  taken  in  the  Commission’s  decision  of 
13 March 2001,  whereby  Commission  proposals  for  legislation  must  be  scrutinised 
for  compatibility  with  the  Charter  in  the  course  of  normal  decision-making 
procedures. 

This approach will be retained in principle. The conformity of Commission actions 
with  fundamental  rights  is  a  primary  aspect  of  their  constitutional  legality;  it  must 
remain an integral part of the verification of legality. It seems neither necessary nor 
appropriate  to  create  new  specific  administrative  structures  or  procedures  for  this 
aspect of verification of legality. 

However, to further reinforce and systematise the practical aspects of scrutiny at the 
interdepartmental  consultation  stage,  fundamental  rights  will  be  brought  into  even 
sharper  focus  in  two  key  documents  submitted  together  with  the  draft  legislative 
proposal: 

– 

– 

the  impact  assessment,  which  should  include  as  full  and  precise  a  picture  as 
possible of the different impacts on individual rights (see Section III below); 

the  explanatory  memorandum,  which  for  certain  legislative  proposals  should 
contain a section on the legal basis for compliance with fundamental rights (see 
Section IV below). 

The two documents are mutually complementary in this methodology. 

The impact assessment provides the Commission, right from the start of the drafting 
process, with a complete picture of the various impacts which the process can have 

II. 

6. 

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12. 

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on  the  individuals  and  groups  whose  rights  may  be  involved,  depending  on  the 
different options envisaged.  

On the other hand, an impact assessment cannot be used to contain the legal scrutiny, 
i.e. the legal definition of the impacts identified in the light of the provisions of the 
Charter and the European Convention on Human Rights, and the case-law. The legal 
scrutiny calls for specific expertise and should concern an advanced draft proposal. It 
should  as  far  as  possible  be  initiated  within  the  lead  department  itself  and  then 
continued  during  the  interdepartmental  consultation  procedure  through  the  formal 
involvement  of  the  Legal  Service;  it  should  if  necessary  be  summarised  in  the 
explanatory memorandum, in the manner described below in Section IV, and thus be 
made publicly visible. 

The impact assessment will in this way become an essential tool in preparing for the 
definitive legal verification of compliance with the Charter, as it provides the basic 
information without thereby taking the place of verification5. If serious questions are 
raised in the conclusions following the legal verification, those conclusions should be 
included in the explanatory memorandum. 

This approach is all the more justified as impact assessments will not be carried out 
for  all  legislative  proposals6,  and  because  fundamental  rights  problems  sometimes 
arise only with the detailed implementing provisions or with very specific elements 
of a legal instrument which an impact assessment could not forecast. 

The  lead  department  will  also  ensure  that  the  Directorate-General  for  Justice, 
Freedom  and  Security  is  involved  in  the  interdepartmental  consultation  when  a 
proposal is liable to raise issues relating to fundamental rights, notably in the light of 
the  impact  assessment.  Likewise  it  will  ensure  that  the  relevant  external  relations 
Directorate-General  is  associated  where  a  proposal  might  affect  the  fundamental 
rights of third-country nationals outside the Union. 

The legislative  provisions or  decisions which the  Commission itself adopts directly 
under the Treaty or by virtue of its implementing powers and in accordance with a 
committee  procedure  can  also  be  sensitive  as  regards  fundamental  rights.  The 
preparation of these instruments is also subject to the interdepartmental consultation 
procedure,  which  enables  them  to  be  checked  for  compliance  with  the  Charter  in 
accordance  with  the  principles  set  out  above.  Unlike  legislative  proposals, 
Commission  regulations  or  decisions  are  not,  however,  accompanied  by  an 
explanatory  memorandum  or  by  an  impact  assessment.  By  way  of  exception, 
however,  an  assessment  may  be  conducted  when  the  lead  department  considers  it 
justified  by  the  scale  of  the  foreseeable  impact  of  a  regulation  and  the  legal 
framework allows it. 

5 

6 

The Commission has already pointed out that impact assessment is only a tool to aid decision-making 
and  is  not  a  substitute  for  political  judgment  (see  COM(2002)  276  final,  5.6.2002,  p. 3).  Similarly,  it 
should be regarded as an essential aid to the legal analysis carried out by Commission departments, in 
particular at the interdepartmental consultation stage. 
Even legislative initiatives which are not included in the Commission’s legislative and work programme 
may, however, be included among the initiatives for which an impact assessment is required. 

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III. 

Taking fundamental rights into account in impact assessments 

17. 

18. 

19. 

Impact  assessment  is  an  instrument  which  the  Commission  has  been  using  since 
20027.  The  basic  idea  is  to  replace  the  existing  practice  of  conducting  impact 
assessments for individual sectors by integrating the impact assessments into a single 
comprehensive instrument applying to all sectors and covering economic, social and 
environmental  impacts.  In  October  2004,  the  Commission  adopted  a  report8 
assessing the initial findings and outlining the steps for further improvement of this 
instrument.  On  the  basis  of  this  report,  Revised  Impact  Assessment  Guidelines  are 
being  prepared  and  will  be  applied  in  the  near  future.  These  guidelines  contain  a 
revised detailed checklist of the impacts to be considered in Impact Assessment9. 

In  order  to  take  the  fundamental  rights  dimension  more  fully  into  consideration,  a 
number  of  additional  questions  specifically  on  fundamental  rights  have  been 
introduced  into  the  impacts  checklist  contained  in  the  Revised  Impact  Assessment 
Guidelines.  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. 

The  checklist  will  continue  to  be  divided  into  three  categories,  namely  economic, 
social  and  environmental  impacts.  Rather  than  creating  a  fourth,  separate  category 
for  fundamental  rights,  or  a  sub-heading  within  the  section  on  social  impacts,  the 
additional  questions  on  fundamental  rights  have  been  incorporated  within  the 
existing three headings according to their links to the items already listed there. 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, or on 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”.  Introducing  a  new  fourth  heading 
“fundamental  rights”  could  lead  to  needless  repetition  by  the  assessing  services 
instead of sharpening their focus on the practical impacts which might be relevant to 
those rights. The creation of a sub-heading in the chapter on “social impacts” would 
not adequately reflect the variety of, and balance between, the social, economic and 
political rights in the Charter. 

IV. 

Taking fundamental rights into account in the explanatory memorandum 

20. 

Some recent Commission proposals already contain a relatively detailed scrutiny of 
respect for fundamental rights in their explanatory memoranda. This is not, however, 
a systematic practice applicable to all proposals that have raised questions connected 
with  fundamental  rights  dealt  with  by  the  Commission  in  the  standard  Charter 
compliance recital provided for in the Commission’s decision of 13 March 2001. At 
the same time, guidelines seem to be needed to answer the question which legislative 
proposals should contain the Charter recital.  

21. 

The Commission’s decision of 13 March 2001 provided for the insertion of a recital 
in  “legislative  proposals  or  draft  instruments  which  have  a  specific  link  with 

7 
8 
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Commission Communication on impact assessment - COM(2002) 276 final, 5.6.2002. 
SEC(2004) 1377. 
This checklist will expand on the list contained in Annex II to document SEC(2004) 1377. 

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fundamental  rights”.  Unlike  the  recital  on  the  principle  of  subsidiarity  it  was  thus 
rightly decided not to apply it systematically. It does not seem possible or desirable 
to  give  detailed  instructions  in  this  respect.  The  departments  have  to  find  a  proper 
balance  between  the  risk  of  trivialising  the  recital  by  using  it  extensively  and  the 
vigilance  needed  to  ensure  that  all  serious  questions  concerning  respect  for  a 
fundamental right are dealt with.  

22. 

It  is,  however,  possible  to  apply  two  mutually  compatible  criteria  to  guide  current 
practice. The Charter recital will accordingly be used where: 

– 

– 

it is clear that, particularly in the light of information provided by the impact 
assessment, a legislative proposal includes a limitation of a fundamental right 
which must be justified under Article 52 of the Charter10; or where there is a 
direct or indirect difference in treatment that must be justified in relation to the 
general principles of equality before the law and non-discrimination; 

a  legislative  proposal  is  aimed  at  implementing  or  promoting  a  particular 
fundamental right. 

23. 

It  is  also  desirable  to  introduce  the  rule  that,  in  future,  whenever  a  legislative 
proposal  contains  this  standard  Charter  recital,  the  explanatory  memorandum  must 
include  a  section  briefly  summarising  the  reasons  pointing  to  the  conclusion  that 
fundamental rights have been respected. 

24. 

This rule has a twofold purpose: 

– 

– 

on  the  one  hand  the  Commission  will  thus  be  giving  a  public  account  of  its 
legal  scrutiny  of  respect  for  the  fundamental  rights  secured  by  the  Charter  in 
relation  to  any  proposal  for  legislation  raising  serious  fundamental  rights 
questions. It would thereby avoid the criticism sometimes made in the past that 
it  merely  affirms  conformity  with  the  Charter  by  incorporating  the  standard 
recital without giving any reasons for its conclusions; 

on  the  other  hand,  this  rule  is  aimed,  as  is  the  incorporation  of  fundamental 
rights in the impact assessment, at enhancing the effectiveness of the internal 
scrutiny. The requirement that lead departments include a summary on respect 
for  fundamental  rights  in  their  draft  explanatory  memorandum  will  make  the 
departments  more  aware  of  these  matters  and  provide  a  better  basis  for  the 
formal  legal  review  during  the  interdepartmental  consultation.  The  Legal 
Service  will  have  to  pay  particular  attention  to  this  part  of  the  explanatory 
memorandum and provide all the assistance needed for the final version.  

Follow-up by the Group of Commissioners of the internal monitoring of respect 
for fundamental rights 

Although  internal  monitoring  of  compliance  with  the  Charter  must  essentially  be 
carried  out  by  the  departments,  it  is  nonetheless  important  that  Members  of  the 
Commission, 
the  Group  on  Fundamental  Rights, 
Anti-discrimination  and  Equal  Opportunities,  keep  a  close  eye  on  its  operation  and 

especially 

those 

in 

V. 

25. 

10 

= Article II-112 of the Constitution. 

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the main results. The Legal Service will keep the Group of Commissioners regularly 
informed of significant cases where fundamental rights have been subject to internal 
monitoring. In very special cases where proposals require a careful balance between 
several opposing fundamental rights, the Group may also produce policy guidelines, 
within the margins for political discretion afforded by the provisions of the Charter. 

26. 

Lastly, a general appraisal of internal monitoring, prepared by the Legal Service in 
agreement  with  the  Justice,  Freedom  and  Security  DG  and  the  Secretariat-General, 
will be submitted to the Group in 2007 − accompanied, if necessary, by proposals to 
amend or supplement this methodology in the light of experience. In addition, when 
the  Fundamental  Rights  Agency  becomes  operational,  which  is  scheduled  for 
January  2007,  its  activities  and  work,  being  an  extension  of  the  work  done  by  the 
Vienna-based  European  Monitoring  Centre  on  Racism  and  Xenophobia,  should  be 
used as input for the methodology. 

VI. 

Monitoring respect for fundamental rights in the work of the legislature 

27. 

28. 

29. 

The  Commission’s  responsibility  as  guardian  of  the  Treaties  and  hence  of 
fundamental rights does not end when it presents a proposal to the legislature. 

The Commission, and especially the Group of Commissioners, will also monitor the 
work  of  the  two  branches  of  the  legislative  authority  in  order  to  determine 
compliance  with  fundamental  rights,  in  particular  in  very  sensitive  cases  involving 
such  rights  or  where  fundamental  rights  arguments  are  raised  in  the  legislative 
process. The Commission will defend the standards for the protection of fundamental 
rights laid down in its proposals for legislation and will warn against any unjustified 
violation of them by the legislature. 

As a last resort, the Commission will reserve the right, on the basis of a case-by-case 
political scrutiny, to initiate annulment proceedings in the event of an infringement 
of  fundamental  rights  where  it  considers  a  breach  has  occurred  but  there  is  no 
possibility  of  interpreting  the  act  adopted  as  being  compatible  with  fundamental 
rights. 

VII. 

Publicising internal monitoring of fundamental rights 

30. 

Internal  monitoring  of  respect  for  fundamental  rights  in  the  Commission’s  own 
legislative  proposals  should  form  the  subject  of  an  appropriate  communication 
targeted at European citizens. 

31. 

The purpose of increasing publicity in this way will be threefold: 

– 

– 

– 

the  Commission  will  demonstrate  its  own  efforts  to  secure  compliance  with 
fundamental rights, which will reinforce the credibility of its initiatives; 

the publicity will also promote the image of the Charter as an essential vehicle 
of a European civic identity based on common values; 

lastly, public awareness will encourage citizens and civil society to assert their 
fundamental rights in the consultations held by the Commission, which will in 
turn  help  fundamental  rights  to  be  taken  more  fully  into  account  and  better 
promoted in EU policies. 

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32. 

The public will be informed about this Commission programme at three levels: 

– 

– 

– 

first, this communication will inform the other institutions and the public of the 
principles  guiding 
internal  scrutiny  of  Commission  proposals  for 
compliance with fundamental rights; 

the 

second,  publicising  the  impact  assessments  and  the  section  on  fundamental 
rights  in  explanatory  memorandums  will  allow  the  other  institutions  and  the 
public  to  follow  individual  legislative  initiatives  being  scrutinised  under  the 
Charter; 

lastly,  whenever  the  Commission  consults  the  parties  concerned,  civil  society 
and the general public when preparing its initiatives, especially as regards the 
impact assessment, it will draw attention to the rights set out in the Charter and 
its  own  internal  monitoring  of  respect  for  those  rights  by  inviting  the  parties 
consulted to assert their fundamental rights. This is a crucial step in ensuring 
that  impact  assessments  are  complete  and  balanced  and,  more  generally,  in 
promoting a real “fundamental rights culture” within the European Union. 

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