Evidence-Informed Lawmaking and the Use of Evidence by the European Parliament:The Case of Harmful Content in the Digital Services Act

EU evidence-informed lawmaking is criticised as European Parliament and the Council frequently introduce substantial amendments without conducting impact assessments. This criticism overlooks that there is little research on evidence actually used by the European Parliament. An analysis of Parliament’s amendments to the provisions on content moderation and recommender systems in the DSA shows that Parliament makes much more use of sources on fundamental rights than the European Commission, and generally lives up to its commitment to evidence-informed lawmaking. Its amendments to Article 14 and 27 DSA may compensate for some of the shortcomings of the Commission impact assessment to the DSA – a superficial human rights impact assessment, lack of attention for the role of private actors and focus on terms and conditions. More generally, the amendments to the DSA demonstrate the difficulty to conduct additional impact assessments for substantial amendments, in line with the Interinstitutional Agreement on Better Lawmaking, and showcase that evidence-informed lawmaking does not take away the need to make political choices. Instead, the drafting process suggests that the use of relevant, authoritative evidence does not necessarily mean that amendments will be adopted, nor has it consistently resulted in amendments that are of high legislative quality. The article concludes with five suggestions for the upcoming reform of better regulation.