Enhancing Fundamental Rights Protection

The EU should ensure fundamental rights’ compatibility of EU legislation before its adoption. To that effect, we propose three distinct paths to improve the EU control mechanisms. At present, the EU is increasingly active in fundamental rights-sensitive matters. Its recent legislative efforts in regulating artificial intelligence or combating child sexual abuse are just two examples among many initiatives with strong fundamental rights implications. Against this backdrop, it has been noted in literature that current mechanisms to ensure compliance of EU legislation with fundamental rights prove insufficient. Ex post judicial remedies that allow EU acts to be challenged for their compliance with fundamental rights are not always satisfactory, given the limited interest of institutional players and the strict locus standi rules for private actors to launch an action for annulment under Article 263(4) TFEU. Moreover, the lack of resources and ineffective representation of private actors, especially amongst vulnerable groups, further reduces access to this action. Whilst mechanisms to ensure quality control in the process leading to the adoption of EU acts do exist within the EU’s institutional setting, primarily in the form of impact assessments, these mostly remain a merely formal exercise. In line with the resolution of the European Parliament, we therefore suggest strengthening the ex ante fundamental rights review of EU legislation. Below, we explore several options to that effect, each presenting varying degrees of feasibility and effectiveness.

Improving fundamental rights protection through (inter-)institutional practices

In order to mainstream fundamental rights protection from the early stages of preparation of legislative proposals, the European Commission and the Council have their own “fundamental rights check-list” which is now included in the 2023 “Better regulation” toolbox n. 29. However, this practice has been criticised as a sole “box-ticking” process. Moreover, the toolbox currently only provides general guidelines without offering right-specific instructions.

To address these shortcomings, we first suggest improving the qualitative requirements of the toolbox, by imposing an obligation to specify the degree of negative impact on fundamental rights. Another measure would involve the adoption of right-specific toolboxes, providing further details as to when each right is likely to be breached. We also invite the EU institutions to adopt a common fundamental rights-specific check-list, to be established and regularly updated in cooperation with the FRA. Furthermore, we propose to enhance the scrutiny of Commission initiatives concerning fundamental rights by improving impact assessments. Fundamental rights impact assessments are currently not systematic. According to the Better Regulation toolbox, they are only required for Commission initiatives “likely to have significant economic, environmental or social impacts or that entail significant spending, and where the Commission has a choice of policy options”.

We suggest making a fundamental rights impact assessment systematic, if necessary, by adding a mandatory separate fundamental rights section to the impact assessments. As it is rather common for EU institutions to outsource these impact assessments to external experts, another suggestion is to establish quality standards for this outsourcing, such as requirements for expertise, independence, and other key criteria.

Once the Commission’s impact assessment has been drafted, the Regulatory Scrutiny Board (RSB) is competent to review its quality. The RSB’s members are however not always specialised in fundamental rights protection. Furthermore, RSB reports do not consistently review whether the impact on fundamental rights has been assessed in a satisfactory manner. A valuable adjustment is to establish a Fundamental Rights Scrutiny Board, specifically in charge of reviewing the quality of fundamental rights impact assessments. Alternatively, one section within the RSB could be dedicated to scrutinising the quality of the fundamental rights impact assessments. Ultimately, the process of appointment of the RSB, or the FRSB, ought to be revised to ensure greater independence vis-à-vis the Commission.

In order to implement the previous proposals, adjustments to existing soft law instruments could be made. However, we suggest adopting a new interinstitutional agreement on “Better Fundamental Rights Compliant Regulation”, which would allow the centralization of good fundamental rights practices, shared by the European Commission, the European Parliament, and the Council. In our view, the proposals included in this first section would constitute a good – if not entirely novel – first step towards enhanced protection of fundamental rights in EU legislation, even though we recognize that this might signify an additional burden for the institutions’ legislative work.

Involving FRA as an independent body ensuring external ex ante fundamental rights review

There are several good reasons to involve the FRA in ex ante review mechanisms. Its independent nature according to Article 16 of the FRA Regulation ensures a more neutral and objective assessment of fundamental rights compliance of draft legislation. Moreover, the internal structure and composition of the FRA guarantee a high degree of knowledge and expertise in fundamental rights matters. Furthermore, there is a diversity and plurality of perspectives represented via the FRA’s composition (e.g. academic voices, national input, perspectives from the Council of Europe as well as representatives of the European Commission). This diverse composition gives the Agency legitimacy and authority, also vis-à-vis other actors in the legislative procedure. Finally, equipping FRA with new prerogatives could fill an institutional gap: whereas some Member States – such as the Netherlands, Belgium, or France – have independent institutions advising on the fundamental rights compatibility of draft legislation (i.e., the Conseil d’État/Raad van State), the EU does not yet have such an actor.

We envisage two options to involve the FRA more prominently in ex ante control of EU legislation, both requiring amending the FRA Regulation.

Our preferred recommendation for reinforcing the FRA’s role is to grant it the right to issue public opinions on fundamental rights compliance of draft legislation on its own initiative. According to the current version of Article 4(2) of the FRA Regulation, FRA may issue an opinion on positions taken by the institutions in the course of legislative procedures only where such a request has been made by the respective institution. By granting it the possibility of giving advisory opinions spontaneously during the legislative process instead, the ex ante review becomes more comprehensive. Such rights of issuing spontaneous opinions already exist in the EU legal order. For instance, the European Economic and Social Committee may issue an opinion to the Commission, the Council, and the Parliament if it deems it appropriate, according to Article 304 (1) TFEU. The necessary modification of Article 4(2) FRA Regulation – which would require unanimity in the Council following Article 352(1) TFEU – could thus be modelled on this wording.

Our second suggestion goes one step further. Consulting FRA would become mandatory – instead of discretionary – for the Commission upon finalising legislative proposals. One could achieve this through a modification of Article 4(1) of the FRA Regulation, by adding such consultation to the list of FRA’s tasks. Again, such a duty to ask for an external organ’s opinion on draft legislation in matters of fundamental rights would not be novel, as illustrated by the Commission’s existing duty to consult the European Data Protection Supervisor when a legislative proposal impacts the protection of individuals’ personal data. This option, however, entails a risk of excessive lengthening of the legislative procedure. An answer to this problem could be to establish a one-stop-shop mechanism inside the agency which would be in charge of running a quick (limited) preliminary check in order to decide whether issuing an in-depth opinion is necessary, or whether the procedure can continue before the European Parliament and the Council. This solution would require additional resources for the FRA to properly execute this task without hindering its other functions.

Even though such advisory opinions of the FRA would not be binding, they would probably lead to a strengthening of fundamental rights compliance, especially as the Court of Justice of the EU (CJEU) may take it into account in its reasoning when ruling on annulment actions.

Introducing an ex ante fundamental rights judicial review

A final option to enhance the protection of fundamental rights would entail establishing a procedure of ex ante judicial review of EU legislation by the CJEU. This option of a “pre-emptive review of norms at the CJEU” has been considered by the Parliament in its proposals for the amendment of the Treaties. It also exists in some national legal systems, such as France and Poland. At the EU level, the introduction of such abstract pre-emptive review of draft legislation would require a major treaty reform.

In the framework of a pre-emptive fundamental rights review, the CJEU could give a binding opinion on the compatibility of an envisaged legislative act with fundamental rights at the very end of the legislative procedure. Such a mechanism could be modelled after the existing mechanism for reviewing the compatibility of envisaged international agreements with EU primary law provided for in Article 218(11) TFEU.

Nonetheless, this might entail several risks. Setting up an ex ante judicial review mechanism presents an evident threat of extending excessively the duration of the legislative process, generating abuses in the use of such procedure and overburdening the CJEU. For this reason, the use of the pre-emptive control procedure would need to be subject to strict admissibility conditions. Furthermore, introducing this procedure should be preceded by a thorough reflection on its interactions and overlaps with the annulment action provided for in Article 263 TFEU. The scopes of the two mechanisms could be separated, for instance, by limiting the grounds of ex ante review to fundamental rights-related matters.

Conclusion

The constantly growing body of EU secondary legislation in fundamental rights-sensitive fields calls for a serious debate on the potential refinement of ex ante review of EU legislative acts. Whereas the establishment of fully-fledged control mechanisms – similar to those existing in several Member States – of EU legislation would imply a major overhaul of the current institutional setting, significant adjustments may be realised via the improvement of already practiced solutions. A number of the aforementioned refinements such as those concerning the “Better regulation” toolbox or the way impact assessments are conducted constitute changes that could be introduced through the spreading of good practices. Their effective implementation, potentially coupled with an enhanced involvement of FRA in the legislative process would increase the credibility of the EU in its role as a key player in the field of fundamental rights protection.

This publication is the outcome of a workshop (KU Leuven, 13-14.6.2024) hosted by the RESHUFFLE project under the direction of Prof. Muir. The latter project explores the constitutional implications of the growing influence of the EU on the protection of fundamental rights in Europe; it is funded by the European Research Council under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement n. 851621).