Better EU Lawmaking?

The European Commission is trying fight the image it has (in some sections of Europe) of being an over-eager legislator that meddles in every aspect of European life. In a new Communication on the Regulatory Fitness and Performance Programme ("REFIT"), the Commission says it is withdrawing a number of legislative initiatives, repealing some laws that are already in force, and reviewing others.

A closer inspection reveals that in some cases the legislatative initiatives being "withdrawn" have anyway been blocked for years and may now be replaced by new initiatives; that other items are simply being postponed until the next Commission (coming in 2014) takes up work, and that some of the legislation to be repealed is also being replaced.

Nevertheless a certain degree of rationalisation, as well as simplification in the form of consolidation into fewer pieces of legislation, can be expected, particularly given the fact that much existing legislation remains to be evaluated for "fitness", meaning identifying excessive burdens, overlaps, gaps, inconsistencies, and obsolescences which may have appeared over time.

This all comes within the context of public concerns over EU regulatory burden. In fact, since 2010, the Commission has claimed to be embarked upon a more systematic approach to ensuring EU regulation meets the needs of business as well as simplifying the existing legislative framework at EU level. The Commission calls this "Smart Regulation".

The "Smart Regulation" agenda has led to the Commission introducing detailed consultations of the public and stakeholders when preparing legislative proposals, impact assessments before proposals are presented, and specific monitoring schemes in regards to the implementation of legislation once it has been legislated.

The Regulatory Fitness and Performance Programme (REFIT), set up at the end of 2012, is part of this "Smart Regulation" agenda. Under the REFIT, EU laws are being screened for burdens, gaps and inefficiencies in order to evaluate and if appropriate revise or repeal those laws

The REFIT Communication

The Communication and its Annex provide an overview of what the Commission considers it has achieved since 2005 to simply EU laws and reduce costs including:
• The quantitative reductions in EU legislation of 5590 legal acts being repealed since 2005.
• Changes to how the Commission prepares regulation through impact assessment and stakeholder consultation.
• An estimated reduction in administrative burdens for businesses of 26% equivalent to €32.3 billion per year over the period 2007-2012.

It provides examples of legislative initiatives that are being considered by the European Parliament and the Council that the Commission considers would help simplify and reduce regulatory burdens.
The Communication lists areas for further action for 2013-14 to simplify existing EU legislation through amendments and for consolidation of existing EU law
It provides examples those areas where the Commission is considering withdrawing pending proposals and repealing existing EU law.

Further, it outlines new horizontal actions to reduce the burden including:
• Encouraging best practice to be exchanged between Member States to improve national implementation of EU law
• Implementing the results of REFIT
Lastly, it annnounces the annual publication of a REFIT ‘scoreboard’ to track progress at European and national level on regulatory burdens with citizens, Member States, and business.

Our Analysis

We've analysed exactly what will be happening as set out in the Communication on REFIT, to the extent that it is currently known by the Commission (again, a number of things are identified as the subject of future "examination", studies, consultation, etc.)

In the following analysis, we present a detailed breakdown of what the Commission is currently projecting, in four sections:

1. Items being presented by the Commission as repeals, withdrawals or postponements;

2. Planned and on-going evaluations of existing legislation;

3. Future proposals in line with REFIT; and

4. Proposals already presented by the Commission that is considers to be in line with REFIT

1. Repeals, Withdrawals and Postponements

Existing legislation the Commission proposes to repeal (where laws are outdated), and proposals which the Commission will propose to withdraw and planned initiatives which it will not take forward;
Possible withdrawal of a proposal for a Soil Framework Directive COM(2006)232

This is the first time that the Commission has announced it was considering withdrawing the proposal. It has been blocked in the Council for 8 years and no progress has been made to reopen discussions.
The Commission states that it will examine carefully whether the objective of the proposal, to which it “remains committed”, is best served by maintaining the proposal or by withdrawing it, thus opening the way for an alternative initiative in the next mandate (target 2015). This will be judged on the feasibility of reaching adoption before the European Parliament elections.

Withdrawal of a proposal on access to justice in the area of environment COM(2003)624

The Commission states that it will consider alternative ways of meeting its obligations under the Aarhus Convention and is conducting an impact assessment while awaiting an ECJ judgement.
The Commission is carrying out a ‘fitness check’ of the entire corpus of health and safety legislation (see next section).
Additionally, during the current mandate, the Commission states that it will not propose legislation for hairdressers; muscular skeletal disorders and manual handling/screen displays; environmental tobacco smoke; and carcinogens and mutagens. These items are still on the table however for the following Commission.
Enterprise and Industry
Repeal of Directive 1999/45/EC on the classification, packaging and labelling of dangerous preparations
Health and Consumer Policy
Withdrawal of two proposals regarding information to the general public on medicinal products subject to medical prescription. COM(2012)48 and COM(2012)49

Repeal of Council directive on assistance to the Commission and cooperation by the Member States in the scientific examination of questions relating to food
Repeal of the Regulation on Steel Statistics

Withdrawal of a proposal for a Regulation on European statistics on safety from crime (COM(2011)335)
Home Affairs
Repeal of a Council Decision concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information
Internal Market and Services
Possible replacement of the proposal for a Council Regulation on the statute of a European private company, COM(2008)396, with a new proposal in this area.

Withdrawal of proposals in legislative procedure on the legal protection of designs and on the Community patent (patent proposal converted into enhanced cooperation). COM(2004)582
Withdrawal of the proposal for a Directive simplifying VAT obligations COM(2004)728
Mobility and Transport
Repeal of Directive 2007/38/EC on the retrofitting of mirrors to heavy goods vehicles;

Repeal of Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles;

Withdrawal of proposal in legislative procedure regarding driving licences which include the functionality of a driver card. COM(2011)710
Repeal of the Council decision on the setting of a Community target for a reduction in the consumption of primary sources of energy in the event of difficulties in the supply of crude oil and petroleum products and implementing legislation.
Development Cooperation
The Commission will not propose a new European Union Food Facility. This instrument will expire at the end of 2013.

2. Planned and On-going Evaluations of Legislation

This section lists "fitness checks" the Commission is preparing or has planned. A “fitness check” is defined by the Commission as a “comprehensive policy evaluation” these focus on identifying excessive regulatory, burdens, overlaps, gaps, inconsistencies and/or obsolete measures which may have appeared over time.
Fitness Checks and Evaluations planned:
• Fitness Check on Natura 2000
• Fitness Check on EU Eco-Label 
• Fitness Check on EMAS
• Streamlining of reporting requirements obligations in the environment sector applying the principles of Structured Implementation and Information Frameworks;
• Evaluations of the European Pollutant Release and Transfer Register (EPRTR), 
• Evaluation of legislation in relation to keeping wild animals in zoos
• Evaluation regarding the Aarhus Convention (pending a Court of Justice judgement).

Fitness Checks and Evaluations ongoing:
• Fitness Checks on Waste Policy
• Evaluations of legislation in relation to environmental noise
• Evaluations of legislation in relation to volatile organic compound emissions 
• Evaluations of legislation in relation to environmental liability and 
• Evaluations of legislation in relation to Infrastructure for Spatial Information.
Evaluations planned:
• Evaluations of legislation regarding information obligations for employers in relation to employment contracts.

Evaluations ongoing:
• Evaluation of legislation in the area of health and safety at work
• Directive 2008/104/EC99 on temporary agency work
• Directives 97/81/EC97 on part-time work and 99/70/EC98 on fixed-term work
Health and Consumer Policy
Fitness Checks and Evaluations planned:
• Fitness Check of the Regulation (EU) N° 178/2002 (the General Food Law Regulation).
Enterprise and Industry
Fitness Checks, Cumulative Cost Assessments and Evaluations planned:
• Fitness Checks on the most relevant chemicals legislation not covered by REACH as well as related aspects of legislation applied to downstream industries
• Evaluations of the machinery Directive and firearms legislation
• Cumulative cost assessments in the areas of chemical industry and forest-based industries (woodworking, furniture, pulp/paper and printing).

Fitness Checks and Evaluations ongoing:
• Evaluation of regulations regarding internal market for industrial products
• Fitness check on the type-approval system for motor vehicles and of the oil refining sector
• Cumulative cost assessment of the aluminium sector
Evaluations planned:
• Evaluation of the Directive on Renewable Energy
Home Affairs
Fitness Checks and Evaluations planned:
• Fitness Check of legislation on legal migration
• Evaluations of the Visa Information System
• Evaluation of FRONTEX (including Rapid Border Intervention Teams)
• Evaluations of legislation in relation to residence permits for victims of trafficking in human beings

Evaluations ongoing:
• Comprehensive evaluation report of Council Framework Decision on the fight against organised crime and on combating terrorism
Fitness Checks and Evaluations planned:
• Fitness Check with a view to the possible need for consolidation and merger of legal acts related to consumer rights and advertising
• Evaluation of legislation regarding equal treatment in social security²
• Evaluation of legislation on a European Enforcement Order for uncontested claims
Internal Market and Services
Evaluations planned:
• Regulation 1606/2002 on the application of international accounting standards (IAS)
• New Remedies Directive 2007/66/EC 
• Financial Services legislation
• Directive 86/653 on commercial agents
Taxation and Customs
Evaluations planned:
• Evaluations of the directive on the structure and rates of excise duty applied to manufactured tobacco and of general excise duty arrangements.
Evaluations planned:
• Comprehensive implementation report on the EU export controls Regulation, including review of the Dual Use Regulation 428/2009 (required under the basic act and export control policy). The planned report will present options for reform and simplification
• Evaluation of Council Regulation (EC) No 953/2003 of 26 May 2003 to avoid trade diversion into the European Union of certain key medicines
Mobility and Transport
Evaluations planned:
• Evaluation of Directive 2004/54/EC on tunnel safety
• Evaluation of the Combined Transport Directive
• Evaluation of Passenger Ships Safety Legislation
• Continuing work on the definition and implementation of aviation safety for the non-commercial sector.
Humanitarian Aid and Civil Protection
Evaluations ongoing:
 • Evaluation of the European Consensus on Humanitarian Aid – the policy framework for cooperation between the EU and Member States
Communications Networks, Content and Technology
 Evaluations planned:
• Evaluation of Privacy and Electronic Communications Directive
• Evaluation of Audio-visual Media Services Directive (AVMSD)
Evaluation planned:
• Evaluation of Merger Regulation: referral system and minority shareholdings

3. Future Proposals in line with REFIT

New initiatives planned by the Commission to simplify and consolidate legislation mainly through codification, with a view to reducing regulatory costs.
Consolidation of three Directives in the area of information and consultation of workers subject to the results of a consultation of social partners.
Health and Consumer Policy
Revision of the Food Hygiene legislation to consolidate the hygiene provisions, simplify procedures and reinforce a flexible approach for SMEs.

Consolidation of zootechnical legislation.

Simplification of the veterinary medicines legislation
Framework Regulations for Integrating Business Statistics (FRIBS) and social statistics

Reform of the Farm Survey System.
Home Affairs
Simplification and streamlining of the Visa Code.

Codification of the Schengen Borders Code.
Consolidation and merger of legislation regarding consumer rights and advertising subject to the results of a Fitness Check.

Revision of legislation on a European Small Claims Procedure.

Directive 2006/114/EC concerning misleading and comparative advertising.
Internal Market and Services
Revision of UCITS.

Codification of eight Directives in company law.
Taxation and Customs
Introduction of a standard EU VAT declaration in all Member States.
Simplification of State Aid rules in the agricultural sector.

 Review and simplification of the legal framework for organic farming.
Codification of twenty-six Council Regulations following the adoption of two enabling regulations bringing trade legislation in line with the TFEU.

Export for Recovery of non-hazardous waste.
Mobility and Transport
Simplification of cabotage rules in road transport.
Competition Policy
Revision of Commission Regulation implementing Council Regulation No 139/200433 to introduce a simplified procedure for Merger Control.
Fisheries and Maritime Affairs
Fishing Authorisation Regulation.

Technical measures for the protection of marine organisms.

(4) Current Proposals in line with REFIT

These are proposals for that have been presented by the Commission and awaiting adoption by the European Parliament and Council that the Commission considers simplify existing rules or reduce regulatory burden.
Health and Consumer Policy
• Proposal for a Regulation on Consumer Product Safety COM(2013)78 
• Regulation on Market Surveillance COM(2013)74
• Proposal for revision of the Clinical Trials Directive COM(2012)369
• Proposal for a new animal health law COM(2013) 260, 
• Proposal for new plant health Regulation COM(2013) 267
• Proposal for a new plant reproductive material law COM(2013)262
• Proposal for a new Regulation on official controls along the agri-food chain COM(2013) 265
• Proposal for a Directive on the assessment of the effects of certain public and private projects on the environment COM(2012)628
• Proposal for a Regulation on shipment of waste COM(2013) 516
Internal Market and Services
• Commission proposal on the review of the Professional Qualifications Directive 2005/36/EC COM(2011)883
• Commission proposal to amend the Public Procurement Directives Directive 2004/18/EC and Directive 2004/17/EC COM(2011)896 and COM(2011)895
• Commission proposal on European Long-term Investment Funds COM(2013) 462
• Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) COM(2012)11
• Proposal for a Directive of the European Parliament and of the Council on package travel and assisted travel arrangements, amending Regulation (EC) No 2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/EEC COM(2013)512
Home Affairs
• Commission proposal for a recast Directive for the entry and stay in the EU for third country national students, researchers and other groups such as school pupils, trainees, volunteers and au pairs COM(2013)151
Maritime Affairs and Fisheries
• Commission proposal for a reform of the Common Fisheries Policy COM(2011)425
• Commission proposal on Common Market Organisation in fishery and aquaculture products COM (2011)416
• Community system for registration of carriers of radioactive materials replacing national reporting and authorization procedures by a unique registration system to simplify procedures while ensuring high radiation protection levels COM(2011)518
• Consolidation on basic safety standards in field of radioprotection and associated Directives COM(2012)242
• Proposal of the Commission for a new own resource based on VAT COM(2011)737, 739 and 740.
Taxation and Customs
• Common Consolidated Corporate Tax base (CCCTB) COM(2011)121
• Commission Proposal for a Regulation amending the basic anti-dumping and antisubsidy Regulations. (COM(2013) 192)
Mobility and Transport
• Proposal amending Regulation 3821/85 on recording equipment in road transport (tachograph). COM(2011) 451

Next Steps

The Commission is expected to include the proposals for codification and the proposals to repeal existing legislation in its work programme for 2013-2014. The Commission will also decide which current proposals should be withdrawn.

The Commission will also start implementing the new horizontal actions in REFIT as well as continuing with its ‘Fitness Check’ evaluations. Finally the Commission is expected to present the first REFIT scoreboard in 2014.