Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of fundamental rights
Date: 2009-04-29
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, European Commission, drafting of EU law, fundamental rights, human rights

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.4.2009 
COM(2009) 205 final 

REPORT 

ON THE PRACTICAL OPERATION OF THE METHODOLOGY FOR A 
SYSTEMATIC AND RIGOROUS MONITORING OF COMPLIANCE WITH THE 
CHARTER OF FUNDAMENTAL RIGHTS 

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REPORT 

ON THE PRACTICAL OPERATION OF THE METHODOLOGY FOR A 
SYSTEMATIC AND RIGOROUS MONITORING OF COMPLIANCE WITH THE 
CHARTER OF FUNDAMENTAL RIGHTS 

1. 

INTRODUCTION 

In  presenting  the  2005  Communication  on  a  methodology  for  systematic  and  rigorous 
monitoring  of  compliance  with  the  Charter  of  Fundamental  Rights1,  the  President  of  the 
Commission  underlined  the  institution's  determination  to  "lock  in  a  culture  of  Fundamental 
Rights  in  EU  legislation".  The  methodology,  along  with  the  establishment  of  the  Group  of 
Commissioners  on  Fundamental  Rights,  Anti-discrimination  and  Equal  Opportunities  in 
December  2004,  was  one  of  the  flagships  of  this  Commission's  commitment  to  taking 
Fundamental  Rights  seriously.  By  setting  up  the  methodology,  designed  to  ensure  that 
Commission departments check systematically and thoroughly that all the fundamental rights 
concerned have been respected in all draft proposals2, the 2005 Communication enshrined the 
practical means by which intentions would be matched by concrete performance.  

The Commission undertook to prepare an appraisal of the internal monitoring in 2007. This is 
the purpose of the present report, the elaboration of which was delayed in order to take into 
account two new elements: the coming into being of the Fundamental Rights Agency and the 
2009 revision of the Commission's Impact Assessment Guidelines. 

2. 

FUNDAMENTAL RIGHTS PROOFING IN PRACTICE 

2.1. 

General Overview 

Experience over the years since the adoption of the 2005 Communication has demonstrated 
that  fundamental  rights  issues  can  arise  in  many  disparate  areas.  A  few  examples  can  be 
mentioned to show the diversity of topics. 

In  the  Reach  Regulation3,  an  obligation  of  data  sharing  among  registrants  raised  issues 
regarding  the  right  to  property.  The  obligation  was  considered  acceptable  in  that  it  was 
necessary for the protection of the environment and, in particular, designed to avoid repeated 
testing on animals. These considerations were recorded in the recitals of the regulation. 

In the area of agricultural policy, the question of imposing an obligation on Member States to 
publish  a  list  of  beneficiaries  of  rural  development  funding  was  examined.  This  raised  the 
issue  of  data  protection.  Examined  against  the  test  of  necessity,  it  was  concluded  that  any 

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COM(2005)172 final of 27.4.2005. 
The  2005  Communication  and  this  report  deal  with  compliance  with  the  Charter;  however,  the 
Commission  must  ensure  that  its  proposals  comply  not  only  with  the  Charter  and  the  European 
Convention  on  Human  Rights  but  also  with  United  Nations  human  rights  conventions  which  all  the 
Member States have ratified. 
Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH), 
establishing  a  European  Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing  Council 
Regulation  (EEC)  No  793/93  and  Commission  Regulation  (EC)  No  1488/94  as  well  as  Council 
Directive  76/769/EEC  and  Commission  Directives  91/155/EEC,  93/67/EEC,  93/105/EC  and 
2000/21/EC. 

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interference with data protection was justified by the need to improve the transparency of the 
Community's  action  in  the  area  of  rural  development,  to  enhance  the  sound  financial 
management  of  the  public  funds  involved  and  to  avoid  distortion  of  competition  between 
beneficiaries  of  rural  development  measures.  These  considerations  were  recorded  in  the 
recitals to the Commission act4. 

A last example comes from the customs area. In the framework of the revision of the Customs 
Code5, a question arose as to giving operators the right to be heard by the customs authorities 
in procedures relating to the application of customs legislation. It was considered that such a 
right  to  be  heard  was  an  obligation  flowing  from  the  Charter  and  it  is  now  to  be  found  in 
Article 16 of the Code. 

It  is,  however,  the  ever  growing  importance,  in  terms  of  legislative  activity,  of  the  area  of 
Justice,  Freedom  and  Security  which  has,  inevitably,  brought  into  sharp  focus  that  the 
Community  and  Union  are  increasingly  touching  on  areas  which,  very  directly,  raise 
fundamental  rights  issues.  In  this  area,  more  than  any  other,  the  Commission  is  required  to 
confront  delicate  and  controversial  issues  pertaining  to  the  necessity  and  proportionality  of 
possible limitations to fundamental rights. 

Given  the  types  of  matters  covered  by  the  area of Justice, Freedom and Security - the fight 
against criminality, in particular terrorism, immigration, asylum, border control, to name but a 
few - it is unsurprising that this policy occupies a pre-eminent place in terms of monitoring 
the respect for fundamental rights in the Commission's legislative proposals. Citing, only as 
an  example,  immigration  and  asylum  policy,  a  number  of  delicate  questions  of  respect  for 
fundamental rights can be identified as arising over and over again – the most common being 
the prohibition of torture and inhuman or degrading treatment or punishment (Article 4 of the 
Charter),  the  right  to  liberty  and  security  (Article  6  of  the  Charter),  the  right  to  respect  for 
family  life  (Article  7  of  the  Charter),  data  protection  (Article  8  of  the  Charter),  the  right  to 
asylum (Article 18 of the Charter), protection in the event of removal, expulsion or extradition 
(Article  19  of  the  Charter),  non  discrimination  (Article  21  of  the  Charter),  the  rights  of  the 
child (Article 24 of the Charter), the right to an effective remedy and to a fair trial (Article 47 
of the Charter). 

A case study – the Asylum Package 

2.2. 
Many  of  the  above  issues  were  reflected  in  the  "asylum  package6",  adopted  by  the 
Commission in December 2008. This package provides a particularly suitable "case-study" to 

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Recital 42 of Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed 
rules for the application of Council Regulation (EC) No 1698/2005 on support for rural development by 
the European Agricultural Fund for Rural Development (EAFRD). 
Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying 
down the Community Customs Code. 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  laying  down  minimum 
standards  for  the  reception  of  asylum  seekers  COM/2008/0815  final/2  ("Reception  Conditions 
Directive"). 
Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and 
mechanisms  for  determining  the  Member  State  responsible  for  examining  an  application  for 
international  protection  lodged  in  one of  the  Member  States  by  a  third-country  national  or  a  stateless 
person COM/2008/0820 final/2 – ("Dublin regulation") 
Proposal for a Regulation of the European Parliament and of the Council concerning the establishment 
of  'Eurodac'  for  the  comparison  of  fingerprints  for  the  effective  application  of  Regulation  (EC)  No 
[…/…]  [establishing  the  criteria  and  mechanisms  for  determining  the  Member  State  responsible  for 

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demonstrate  how  the  Commission's  internal  fundamental  rights  monitoring  is  applied  in 
practice. 

As  regards  the  proposal  amending  the  Reception  Conditions  Directive,  the  most  sensitive 
issues raised in terms of respect for fundamental rights were those of the detention of asylum 
seekers, the right to an effective remedy and the rights of the child. In examining these issues, 
it was sought to ensure compliance not only with the Charter of Fundamental Rights but also 
with  relevant  international  standards,  in  particular  the  European  Convention  on  Human 
Rights,  the  Geneva  Convention  and  the  United  Nations  Convention  on  the  Rights  of  the 
Child. 

As  regards  detention,  it  was  considered  essential  in  terms  of  respect  for  fundamental  rights 
that  the  proposal  reconfirmed  the  principle7  that  a  person  should  not  be  detained  solely 
because he/she is an applicant for international protection. Thereafter, the proposal sets clear 
parameters  for  the  use  of  detention  in  derogation  from  that  principle;  in  this  respect,  the 
proposal  takes,  as  its  standard,  guidelines  from  the  United  Nations  High  Commissioner  for 
Refugees  (UNHCR)  on  applicable  criteria  and  standards  relating  to  the  detention  of  asylum 
seekers and Recommendation (2003) 5 of the Council of Europe Committee of Ministers on 
measures  of  detention  of  asylum  seekers.  Based  on  these  texts,  the  proposal  provides  that 
detention  should  only  be  used  in  exceptional  cases  and  for  a  limited  number  of  reasons  as 
prescribed by the guidelines. Again, in line with the UNHCR guidelines and the Council of 
Europe  recommendation,  the  proposal  also  introduces  conditions  for  detention  in  order  to 
ensure respect for human dignity in the treatment of detained asylum seekers, and in particular 
of vulnerable persons. Principally, in this respect, the proposal provides that asylum seekers 
should not be kept in prison accommodation but in specialized detention facilities, which take 
into account gender considerations. 

In order to ensure compliance with the right to an effective remedy, the proposal introduces a 
number of procedural guarantees as regards detention. Thus, detention can only be ordered by 
judicial authorities; where in urgent cases, it is ordered by administrative authorities it must 
confirmed  by  judicial  authorities  within  72  hours.  Further,  detention  should  be  only  for  the 
shortest possible time and, in particular, no longer than is necessary to fulfill administrative 
procedures.  Continued  detention  has  to  be  reviewed  periodically  by  a  judge.  A  detained 
asylum seeker is also to be given access to legal assistance or representation which is to be 
free  where  the  person  cannot  afford  the  costs  involved.  These  provisions  are  essential  in 
ensuring an effective remedy in cases of detention. 

As regards the rights of the child, the concern was to ensure that the best interests of the child 
were an underlying principle. As regards the possible detention of minors, the proposal makes 
a  clear  link  with  the  elements  which  must  ground  an  assessment  of  the  best interests of the 
child  in  this  respect.  In  addition,  in  order  to  comply  with  Article  37  of  Convention  on  the 
Rights of the Child, the proposal provides that the detention of a minor should only be used as 
a measure of last resort and for the shortest appropriate period of time. Finally, it is forbidden 
to detain unaccompanied minors. 

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examining  an  application  for  international  protection  lodged  in  one  of  the  Member  States  by  a  third-
country national or a stateless person] COM/2008/0825 final ("Eurodac Regulation"). 
Already  laid  down  in  Council  Directive  2005/85/EC  of  1  December  2005  on  minimum  standards  on 
procedures in Member States for granting and withdrawing refugee status ("the Procedures Directive"). 

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The  proposal  to  amend  the  Dublin  Regulation  also  raised  issues  in  relation  to  detention, 
effective  remedy  and  the  rights  of  the  child.  Solutions  similar  to  those  in  the  Reception 
Conditions proposal were applied. As regards detention, an issue reflecting the specificities of 
the  Dublin  system  deserves  to  be  underlined,  namely,  the  detention  of  an  asylum-seeker 
before transfer to another Member State under the Dublin procedure. The proposal envisages 
that  detention  can  take  place  where  there  is  a  risk  of  the  person  absconding  and  after 
notification  of  transfer  decisions.  This  issue  required  an  assessment  of  necessity  and 
proportionality. Clear parameters have been provided as to when recourse to this possibility 
was  appropriate.  These  include  that  the  detention  decision  is  based  on  an  individual 
assessment of each case and that the possibility of alternative less coercive measures such as 
regular  reporting  to  the  authorities,  the  deposit  of  a  financial  guarantee  or  an  obligation  to 
reside at a designated place have to be examined. Further, as regards the decision to detain, 
procedural  safeguards  are  ensured  in  terms  of  a  reasoned  decision  and  effective  remedies 
before a judge. 

In  addition,  the  right  of  family  unity  has  been  strengthened.  Thus,  the  proposal  obliges  the 
reunification of dependent relatives and extends the definition of "family members" as far as 
minors are concerned, in order to ensure better protection of the "best interests of the child". 
In  addition,  asylum  seekers  will  be  reunited  with  family  members  who  have  been  granted 
subsidiary protection. 

The main concerns, in terms of compliance with fundamental rights, raised by the proposal to 
amend the Eurodac Regulation, focussed on data protection. In this respect, the proposal aims 
to  ensure  better  management  of  the  deletion  of  data  from  the  system  and  more  effective 
monitoring by the Commission and the European Data Protection Supervisor of access to data 
in EURODAC by national authorities. 

The  experience  of  the  asylum  package  demonstrates  that  the  methodology  to  monitor  the 
respect  of  fundamental  rights  implies  not  only  a  procedural  element  but  also  a  substantive 
element. The methodology is not an end in itself. Respect for fundamental rights is not simply 
a  mechanism  or  a  procedural  obligation;  it  is  a  substantive  obligation.  In  underlining  its 
respect for fundamental rights, the Commission has undertaken a substantive adherence. This 
implies as far as fundamental rights are concerned that the Union must be irreproachable in its 
legislative  activity.  In  the  asylum  package,  the  Commission  has  sought  to  deliver  on 
substantive obligations; it has sought to ensure that the starting point is the affirmation of the 
relevant fundamental right and that, thereafter, any eventual limitation is subject not only to 
the  tests  of  necessity  and  proportionality  but  is  also  surrounded  by  safeguards  in  terms, 
particularly, of procedures and judicial review. 

2.3. 

A stock-taking 

Experience over the years since the adoption of the 2005 Communication has demonstrated 
that the Commission has had to make difficult judgments of necessity and proportionality and 
that  the  methodology  has  had  to  confront  delicate  questions  as  to  whether  the  solutions 
arrived at meet the required standards, as set by the case law of the European Court of Human 
Rights  Court  ("the  Strasbourg  Court")  and  by  the  Court  of  Justice  of  the  European 
Communities  ("the  Court  of  Justice").  The  Commission  believes  that  the  standards  of 
necessity and proportionality have been met in its proposals; its commitment to a culture of 
fundamental rights respect is real and of substance.  

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Finally, it should be noted, in relation to both the quantitative and qualitative analysis of the 
monitoring  of  the  respect  for  fundamental  rights,  that  often  the  positive  results  of  such 
monitoring  remain  unknown  to  the  outside  audience,  precisely  because  the  monitoring 
exercise has eliminated any problem in this regard. An example can be cited from the asylum 
area. In the Procedures Directive, a legal base was provided for the establishment of a list of 
third  countries  considered  as  safe  for  the  purposes  of  the  examination  of  an  asylum 
application. Following an application  of  the  methodology,  it  was  considered  that  such  a  list 
would raise serious concerns judged against the “non-refoulement” principle under both the 
Geneva  Convention  and  Article  3  of  the  European  Convention  of  Human  Rights.  The 
Commission considered it, thus, inappropriate to table a proposal in this sense.8 

3. 

IMPROVING THE MONITORING MECHANISM 

3.1. 

Impact Assessment 

The  Commission's  Impact  Assessment  Guidelines  have  recently  undergone  a  revision 
process9  which  involved  a  public  consultation.  One  matter  which  came  up  in  several  of  the 
contributions to that consultation and, indeed, had been an issue included in the Voggenhuber 
report10  was  the  greater  visibility  for  fundamental  rights  within  the  Impact  Assessment 
process. As a response to this, the revised version of the Impact Assessment Guidelines has 
sought to reinforce more clearly than the 2005 version, on the one hand, that ensuring respect 
for  fundamental  rights,  as  defined  in  the  Charter,  is  an  overarching  objective  of  the  Union 
and, on the other hand, that fundamental rights place limitations on the activity of the Union. 
Further,  the  guidelines  specifically  recall  that  certain  fundamental  rights  are  absolute  and 
cannot  be  limited  and  that  the  others  can  only  be  limited  subject  to  a  demonstration  of 
necessity and proportionality. This serves as a clear statement of the constraints in this respect 
in  terms  of  policy options. Lastly, the guidelines contain a list of all the fundamental  rights 
enshrined  in  the  Charter.  This  will  allow  a  direct  correlation  between  the  Charter  and  the 
questions  under  the  three  categories  of  impacts,  economic,  social  and  environmental.  This 
correlation  will  serve  to  underline  that  the  questions  have  real  substance  and  are  linked  to 
concrete rights. 

In  the  Voggenhuber  report,  the  Commission  has  been  asked  to  provide,  within  the  Impact 
Assessment  guidelines,  a  separate  section  on  fundamental  rights  impacts  in  addition  to  the 
three existing categories. In the 2005 Communication, the Commission explained its position 
on  the  maintenance  of  the  three  categories.  As  stressed  in  paragraphs  12  to  15  of  the 
Communication, the underlying reason pleading for a certain caution as to how fundamental 
rights issues are treated within the Impact Assessment process is that the Impact Assessment 
does  not,  and  cannot,  operate  as  the  fundamental  rights  check.  It  cannot  be  a  substitute  for 
legal control. In the end result, fundamental rights proofing can only be performed via a legal 
assessment based on a crystallised draft legislative text. However, while not being, in itself, 
the  legal  control  for  fundamental  rights  compliance,  the  Commission  recognises  that  the 
Impact  Assessment  can  do  some  of  the  groundwork  to  prepare  for  the  fundamental  rights 
proofing of legislative proposals. It should serve to identify what rights in terms of the Charter 

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The  Court  of  Justice  subsequently  found  the  legal  base  provided  in  the  Directive  to  be  incompatible 
with the Treaty, see judgment of 6 May 2008 in case C-133/06 Parliament v Council. 
The  new  Guidelines  were 
adopted  on  28 
(http://ec.europa.eu/governance/impact/docs_en.htm). 
Voggenhuber  Report  of  the  European  Parliament  of  12.2.2007  on  compliance  with  the  Charter  of 
Fundamental Rights in the Commission's legislative proposals. 

January  2009 

available  on 

and 

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are  potentially  concerned  or  affected  by  the  relevant  initiative;  thereafter,  in  identifying  the 
options for action, the Impact Assessment must describe the degree of interference with the 
right11 and the necessity of such interference in terms of the options for action and the policy 
objectives sought to be attained. In this way, the Impact Assessment will provide analysis for 
the later legal control and it is that legal control of a concrete text which will examine whether 
the interference can be permissible in terms of necessity and proportionality, the standards set 
in  the  case  law  of  the  Strasbourg  Court  and  of  the  Court  of  Justice  when  examining  the 
legality of limitations to fundamental rights. 

While  not  creating,  as  favoured  by  the  Voggenhuber  report,  a  separate  category  within  the 
Impact Assessment Guidelines on fundamental rights impacts, the Commission has ensured, 
in  the  revised  guidelines,  a  greater  visibility  for  issues  of  fundamental  rights  and  impacts 
thereon.  This  greater  visibility  will  better  trigger  and,  thereafter,  reinforce,  the  fundamental 
rights reflex at an early stage of Commission policy making. 

Another  matter  singled  out  for  attention  in  the  Voggenhuber  report  was  that  of  measures 
adopted  in  comitology.  As  paragraph  16  of  the  2005  Communication  demonstrated,  the 
Commission was aware that the acts which it adopts in comitology could also have impacts 
on  fundamental  rights  and,  indeed,  one  of  the  examples  cited  above  of  fundamental  rights 
proofing in practice concerned a comitology act12. However, the Commission is, also, mindful 
that  this  is  an  area  where  the  fundamental  rights  reflex  needs  to  be  better  attuned.  In  the 
revised  guidelines,  unlike  the  previous  version,  comitology  acts  are  specifically  mentioned 
and the need for thorough assessment of impacts is underlined. This will help to ensure that 
comitology  measures,  which  have  significant  impacts,  including  impacts  on  fundamental 
rights,  are,  from  now  on,  subject  to  scrutiny  at  an  early  stage  and,  thus,  do  not  escape 
monitoring under the methodology. 

3.2. 

Explanatory Memorandum and Recitals 

The  package  on  asylum  presents  an  example  of  the  better  targeting  of  recitals  in  terms  of 
specifically addressing the rights which are directly concerned by the proposal. This example 
will  become  the  norm13;  the  drafting  of  recitals  must  be  better  targeted  to  indicate  exactly 
what rights are impacted by the relevant proposal and how the solutions found in the proposal 
serve  to  respect  fundamental  rights  obligations.  A  more  specific  motivation  in  this  sense 
would better serve to demonstrate compliance with fundamental rights. In practical terms, this 
will imply that the Commission will be more selective in including recitals on the Charter in 
its  legislative  proposals.  Such  recitals  will  be  included  where  a  proposal  has  serious 
fundamental rights implications. In such cases, not only would there be the "standard" recital 
which confirms compliance with the Charter but also individualised and specific recitals on 
particular rights. 

The  Explanatory  Memoranda  of  the  proposals  in  the  asylum  package  also  present  specific 
explanations  as  to  the  fundamental  rights  implications  of  the  proposals  and  thereby 
demonstrate how respect for fundamental rights has been achieved. The 2005 Communication 
had, indeed, foreseen that, whenever a legislative proposal contained the Charter recital, the 
Explanatory Memorandum would include a section corresponding to that recital which would 

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It  being  understood  that  certain  rights,  such  as  the  interdiction  of  torture,  are  absolute  and  cannot  be 
limited. 
Commission Regulation (EC) No 1974/2006 of 15 December 2006 cited earlier at footnote 3. 
This was also a matter raised specifically by the Voggenhuber Report. 

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summarize  the  reasons  for  concluding  that  the  proposal  was  compatible  with  fundamental 
rights.  The  treatment  of  fundamental  rights  compatibility  as  a  separate  heading  within  the 
Explanatory Memorandum has not, perhaps, been as consistent as had been envisaged by the 
2005  Communication14.  However,  it  will  now  become  the  norm  that  where  the  legislative 
proposal does, indeed, have an impact on fundamental rights, as witnessed by its recitals, the 
Explanatory  Memorandum  must  include  a  section  justifying  succinctly  how  fundamental 
rights obligations have been respected. 

3.3. 

The Fundamental Rights Agency 

On  1  March  2007,  the  Agency  for  Fundamental  Rights  officially  commenced  its  activities. 
The  Commission  is  determined  to  harness  the  expertise  of  the  Agency  in  order  to  support, 
and, indeed, reinforce, the methodology. This could be achieved in a number of ways. 

The  reports  and  surveys  of  the  Agency  could  be  used  as  input  in  the  preparation  of 
Commission  initiatives  and  actions.  This  is  already  the  case.  Currently,  for  example,  the 
Agency is working on a study on the impact on the ground of the Race Equality Directive15 
which will be a contribution to the Commission’s report on the application of this directive. In 
2009,  a  study  on  the  promotion  of  the  rights  of  irregular  immigrants  in  voluntary  and 
involuntary  return  procedures  will  be  a  contribution  for  the  smooth  implementation  of  the 
Return  Directive16.  The  Agency  should  also  be  invited  to  participate  in  the  consultation 
process  which 
initiatives  (Green  papers, 
launched  for  new  possible 
communications, questionnaires, etc.). For example, recently, the Agency has been consulted 
on  the  future  priorities  in  the  area  of  Freedom,  Security  and  Justice  in  the  context  of  the 
preparation of the next multi-annual programme in this area. 

is  normally 

The  Commission17  can  request  the  Agency  to  carry  out  research,  exploratory  studies  or  to 
formulate opinions on specific thematic topics. Already, the Commission has taken advantage 
of this to request from the Agency a study on indicators for the implementation of the rights 
of  the  child.  This  will  be  used  as  input  to  the  strategy  on  the  rights  of  the  child,  which  the 
Commission has scheduled for presentation in 2010. 

In  these  various  ways,  the  Commission  can,  indeed,  harness  the  expertise  of  the  Agency, 
while  at  the  same  time  respecting  the  parameters  of  the  relationship  between  it  and  the 
Commission. In this sense, it is to be recalled that the scrutiny of conformity of proposals with 
fundamental rights is not within the mandate of the Agency. 

3.4.  Monitoring during the Legislative Process 

The  2005  Communication  stressed  the  Commission's  responsibility  to  defend,  during  the 
legislative procedure, the fundamental rights standards laid down in its proposal. To this end, 
the  Communication  stated  that,  as  a  last  resort,  the  Commission  would  reserve  the  right  to 
bring  annulment  proceedings  against  an  act  which  it  considered  incompatible  with 
fundamental  rights.  The  Voggenhuber  report  strongly  supported  the  bringing  of  annulment 

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Paragraph 23. 
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between 
persons irrespective of racial or ethnic origin. 
Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16 December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals. 
And also the Parliament and the Council. 

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proceedings  for  fundamental  rights  violations;  in  addition,  it  underlined  the  Commission's 
right  to  withdraw  its  proposal  if  changes  are  made,  during  the  legislative  procedure,  which 
violate a fundamental right. 

The Commission recognises its responsibilities in this  respect but it must also underline the 
concomitant  obligations  of  the  co-legislators.  They  are  equally  bound  by  the  obligation  to 
respect fundamental rights.  

During the legislative process, the Commission will robustly defend its position as regards the 
fundamental  rights  standards  of  its  proposal  and  will  equally  robustly  signal  to  the  co-
legislators  its  opposition  where  they  would  seek  to  fall  below  such  standards.  The 
Commission will use all means at its disposal to this effect, including requiring the act to be 
adopted at unanimity. 

As a last resort, as it already indicated in the 2005 Communication, the Commission is ready 
to contemplate an annulment action: strategically, the best utilisation of the annulment action 
would be where the legislator has made specific amendments to the Commission's proposal, 
which  the  Commission  considers  clearly  violate  fundamental  rights.  In  the  case  of  such 
specific  amendments,  where  they  can  be  separated  from  the  rest  of  the  instrument,  an 
annulment  action  is  the  better  course.  The  offending  provisions  can  be  singled  out,  while 
preserving  from  attack  the  other  provisions  of  the  legislative  act  which  might  represent 
valuable progress that the Commission would not wish to sacrifice. 

Where,  on  the  other  hand,  the  legislator  has  departed  significantly  from  the  Commission 
proposal in terms of fundamental rights protection so that the centre of gravity of the proposal 
as far as that protection is concerned has shifted, the withdrawal of the proposal could be the 
preferred  option.  The  long  standing  position  of  the  Commission  has  been  that  its  right  of 
initiative also implies the right to withdraw its proposal and, this, in cases where amendments 
made by the legislator to the Commission's proposal lead either to a manifest illegality or to a 
serious distortion of the Commission proposal. 

4. 

CONCLUSION 

Experience  since  2005  has  shown  that  the  methodology  is  well  conceived  as  regards  the 
objective  sought  but  that  its  practical  application  needs  to  be  reinforced.  The  elements 
outlined in this report, the revision of the Impact Assessment Guidelines, the better targeting 
of  recitals  and  the  harnessing  of  the  Agency,  all  have  their  role  to  play  in  the  better 
application of the methodology. However, perhaps the most important element which needs to 
be worked upon is the human element. The fundamental rights reflex has to be promoted in 
the  services  of  the  Commission  where  proposals  and  initiatives  are  created  and  a 
"fundamental  rights  culture"  fostered  from  the  earliest  stages  of  the  conception  of  a 
Commission proposal. 

Lastly, the commitment to the respect for fundamental rights must be a common goal of all 
the Institutions involved in the legislative process. 

EN 

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   EN