President European Commission

 

Dear President,

I have received a complaint brought by several civil society organisations[1] against the European Commission.

The complaint is about the Commission’s alleged failure to comply with its ‘Better Regulation Guidelines’ in preparing two proposals to strengthen EU legislation on preventing and fighting migrant smuggling. The two legislative proposals at issue are the Proposal for a Directive laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union[2] and the Proposal for a Regulation on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes[3].

The complainants argue that the Commission failed to follow the requirements of the Better Regulation Guidelines, in particular the requirement to carry out an impact assessment for the two proposals.

The Ombudsman has consistently held that EU institutions and bodies should apply the rules they have established for themselves. This ensures consistency, transparency and avoid any sense of arbitrariness in the way the EU administration works. These considerations are particularly important when the Commission prepares legislative proposals.

The Better Regulation Guidelines set out the principles that the Commission follows when preparing proposals and when managing and evaluating existing legislation. While some flexibility may be required in their application, any departure from the requirements set out in these Guidelines should always be justified. Otherwise, EU citizens may question the Commission’s commitment to a transparent, inclusive and evidence-based law-making process.

My Office has received three complaints in recent months concerning the Commission’s compliance with its Better Regulation Guidelines.[4] It is clear that the issues raised in these three complaints cover a number of important issues for the Ombudsman.

For these reasons, I have decided to open an inquiry into this complaint.

As a first step, I consider that it is necessary to receive a written reply from the Commission to the complaint and, in particular, to the specific questions set out in the annex to this letter.

I would be grateful to receive the Commission’s reply by 24 September 2025. Please note that I am likely to send the Commission’s reply and related enclosures to the complainant for comments^[5]. I may also decide to publish this reply.

In addition, I have decided that it is necessary to inspect any documentation related to the decision not to perform impact assessments for the two legislative proposals at issue in this case, including any relevant information entered in the Decide IT platform and any approval sought and granted from the Vice-President responsible for ‘better regulation’ or the Director responsible for ‘better regulation’ in the Secretariat-General[6].

I would be grateful if the above documents could be provided to my Office, preferably in electronic format through encrypted e-mail[7] by 15 July 2025.

Please note that the complainant raised additional concerns about the content of the analytical documents, which substituted the impact assessments in the cases at hand. I have decided that there are not sufficient grounds to open an inquiry into this matter.

Finally, please also note that the opening of an inquiry into this case took longer than usual, as I was waiting to analyse the Commission’s reply in the context of my inquiry into complaint 1379/2024/MIK, which also concerns the Commission’s compliance with the ‘Better Regulation Guidelines’.

The responsible inquiries officer is Mr Vieri Biondi.

Yours sincerely,

Teresa Anjinho
European Ombudsman

Strasbourg, 23/06/2025

 

ANNEX:

The Proposal for a Regulation on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes

In the explanatory memorandum to the Proposal, the Commission says that “[t]his legislative proposal is not supported by an Impact Assessment considering that the Commission had little or no choice available, notably due to the urgent operational needs to improve Europol’s support to Member States on countering migrant smuggling”. 

• Could the Commission please elaborate on the reasons for its decision not to carry out an impact assessment? In particular, could the Commission clarify the exact nature of the urgency and at what point in time it became aware of the circumstances that triggered this urgency?
• Could the Commission clarify why it considers that the need urgently to improve Europol’s support to the Member States implies that the Commission had little or no choice available in preparing the Proposal? While urgency could justify taking expedited actions in the preparation of a proposal, it is not immediately clear how it would limit the Commission’s discretion as to the actual content of the proposal.
• How and by whom was the decision taken not to carry out an impact assessment?
• Could the Commission describe the workflow for the preparation and finalisation of the Staff Working Document substituting the impact assessment for this Proposal? Why was the document not published within three months of the adoption of the Proposal, as set out in the Better Regulation Guidelines?[8] Please provide the Ombudsman with a detailed timeline of the Commission’s work on the Staff Working Document.

The Proposal for a Directive laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union

In the explanatory memorandum to the Proposal, the Commission says that “[t]he proposal is exceptionally presented without an accompanying impact assessment”. However, the Commission did not indicate the reasons for not carrying out an impact assessment in this case. The Ombudsman understands from the reply that the Commission provided to the complainant in the context of the Ombudsman’s inquiry in complaint 519/2024/VB, that the omission might be related to what the Commission considered an urgent need to prepare the two proposals to take swift action to tackle migrant smuggling.

• Could the Commission clarify why the proposal was presented without an impact assessment? If the reason was the urgency referred to above, could the Commission clarify the exact nature of the urgency and at what point in time it became aware of the circumstances that triggered this urgency? Could the Commission also clarify why this was not indicated in the relevant section of the explanatory memorandum to the Proposal?
• How and by whom was the decision taken not to carry out an impact assessment?
• Could the Commission please describe the workflow for the preparation and finalisation of the Staff Working Document substituting the impact assessment for this Proposal? Why was the document not published within three months of the adoption of the Proposal, as set out in the Better Regulation Guidelines? Please provide the Ombudsman with a detailed timeline of the Commission’s work on the Staff Working Document.

 

[1] The complaint was submitted by European Digital Rights and the Platform for International Cooperation on Undocumented Migrants on behalf of the ProtectNotSurveil coalition.

[2] COM(2023) 755 final.

[3] COM(2023) 754 final.

[4] Complaint 1379/2024/MIK and 983/2025/MAS.

[5] If you wish to submit documents or information that you consider to be confidential, and which should not be disclosed to the complainant, please mark them ‘Confidential’. Encrypted emails can be sent to our dedicated mailbox. Information and documents of this kind will be deleted from the European Ombudsman’s files shortly after the inquiry has ended.

[6] In line with the procedure outlined in the Better Regulation Toolbox, Tool 1, p.10.

[7] Encrypted emails can be sent to our dedicated mailbox.

[8] Better Regulation Guidelines, p. 30.