The Better Regulation Package

Restoring citizen and business confidence in the EU policy-making process and more effectively delivering on the Commission’s key objectives are the principal aims of the Better Regulation Agenda, adopted in May 2015.

The Commission says the Agenda will boost openness and transparency in the decision-making process; improve the quality of new laws through better impact assessments; and promote the constant review of existing EU laws.

These aims are set out in a series of Communications. Concrete pledges include the establishment of a web portal where initiatives can be tracked and new public consultations found. The Commission will also establish a permanent and inclusive platform for dialogue with stakeholders and Member States on how to improve EU laws in the context of REFIT, the Regulatory Fitness and Performance Programme, which assesses the existing stock of EU legislation to make it more effective and efficient.

Impact assessments will be conducted throughout the legislative process, not just when the Commission prepares its proposal, and the package includes a proposal for an Inter-institutional Agreement to foster a shared commitment to Better Regulation between the Commission, Council and European Parliament.

1. General Principles of Better Regulation

The Commission's Communication on Better Regulation outlines a set of reforms and changes to the decision-making process with a focus on transparency, better tools, evaluation and cooperation.

Openness and Transparency

The Commission wants policies to be prepared inclusively and transparently so that that everyone affected by EU legislation has the opportunity to be involved. All initiatives will be listed on a web portal to enable stakeholders to contribute their views on roadmaps and impact assessments. Stakeholders will also be consulted before the adoption of both Delegated and important Implementing Acts.

To enhance accountability, the Commission wants to improve the explanatory memorandum attached to each Commission proposal. These explain the reasons and purpose behind a proposal and the expected environmental, social and economic impacts.

Better Tools for Better Policies

From 19 May 2015 onwards, new integrated Guidelines on Better Regulation require the Commission to systematically consider economic, social and environmental impacts; to respect fundamental rights; to use the best evidence and science; to incorporate clear monitoring and implementation plans before adopting measures; and to keep the EU competitive and sustainable.

Both regulatory and non-regulatory means should be considered in the development of policy solutions. Implementation and enforcement of existing legislations should be improved.

The Commission is also focused on rules that affect SMEs. The Commission plans to apply the “Think Small First” principle when preparing initiatives and evaluating policies. A lighter regime should apply to SMEs and exemptions should be made for micro-business where possible.

Renewing Existing Legislation

The Commission argues that actively reviewing, assessing and managing existing legislation is just as important as new initiatives. Disappointing results and unintended consequences should be acknowledged as even well-designed legislation may become out of date.

More efficient approaches should be developed to lighten the burden wherever possible, but without reducing policy ambition. Here as well, open public consultations should play an important role in these evaluations.

Shared Commitment to Better Regulation

The Commission argues that, despite a 2003 Inter-institutional Agreement on better-law making by focussing on cooperation between the European Parliament, the Council and the Commission, good intentions have not been implemented consistently.

The Commission stresses it cannot deliver its Better Regulation agenda on its own and therefore calls upon the European Parliament and the Council, as well as the Member States, to share the Commission’s commitment.

2. A New Inter-institutional Agreement

 The key elements of the proposed Inter-institutional Agreement focus on changes for different stages of the legislative process.

Stage 0 - Programming and Planning

The Commission will engage with the European Parliament and the Council before adopting its Annual Work Programme to discuss key aspects. The Commission is prepared to listen to the requests of the European Parliament or the Council for legislative proposals and pledges to always inform both institutions and explain why, should it not submit a proposal.

A list of priority proposals should be agreed upon by the three institutions, based on the Commission Work Programme. The Commission wants the list to include proposals to update or simplify existing legislation and to reduce regulatory burden, especially for SMEs.

The Commission pledges to be transparent and provide details on the Work Programme and regular updates throughout the year on what it is planning. Concerning the implementation of the Work Programme, the Commission intends to report to the Conference of Presidents and the General Affairs Council.

The Political Guidelines of the President of the Commission should form the basis of longer-term planning. Here as well, the Commission wants the three Institutions to exchange views.

Stage 1 - Draft of Proposal

In addition to formal twelve-week public consultations, the Commission wants to give everyone the chance to provide feedback on any aspect of EU policy at any time. This will be made possible by the “Lighten the Load – Have Your Say” feature on the Commission’s Better Regulation website.

A new independent Regulatory Scrutiny Board (RSB) will check the quality of Commission Impact Assessments. According to the Better Regulation Communication, the Regulatory Scrutiny Board will take the place of the existing Impact Assessment Board (IAB), which was established in 2006.

Like the Existing IAB, the new RSB will assess the quality of impact assessments which inform political decision-making. However, the RSB will also assess major evaluations and carry out “fitness checks” of legislation already in place.

Stage 2 – Adoption of the Proposal

The results of the Impact Assessments, together with the opinion of the RSB, will be made public at the time of adoption of the Commission proposal.

The Commission wants stakeholders to voice their opinions during an eight week period following the adoption by the Commission of its proposal and the impact assessment in parallel with the opportunity of national parliaments to submit their opinions on subsidiarity, subject to urgency exceptions and without prejudice to art 155 (2) TFEU.

The opinions of stakeholders and national parliaments should then be sent to the co-legislators, at the start of the legislative process proper.

The Commission urges the European Parliament and the Council to always start their consideration of a Commission proposal by examining the impact assessment.

Both the European Parliament and Council should also conduct impact assessments of their amendments, before adopting them, based on the initial Commission impact assessment.

The Commission would be allowed to assist the European Parliament and Council in these assessments, on its own initiative or by request of the other two Institutions, by explaining their assessment, sharing used data, or even complementing the original impact assessment.

In case a substantial amendment is made to a Commission proposal, each institution would be allowed to call for an independent panel to carry out an assessment which should check whether the core principles for a Better Regulation are respected.

Stage 3 - Delegated and Implementing Acts

The Commission argues that Delegated and Implementing Acts are essential tools of Better Regulation, as they enable the updating of legislation with efficient and swift implementation.

The Commission stipulates in the Inter-institutional Agreement proposal that it is committed to gathering all necessary expertise, through the consultation of experts from Member States and through public consultation, before adopting Delegated Acts. In the Annexes to the proposal, the Commission states that it intends to make indicative lists of planned Delegated Acts. Consultations with experts designated by each Member State will take place via existing expert groups, or via ad hoc meetings with Member State experts, with invitations sent via the Permanent Representations.

According to the Better Regulation Communication, Delegated Acts will be open to the public on the Commission’s website for four weeks, in parallel to the expert consultation in Member States. Should the material content of draft Delegated Acts change after stakeholder consultations, Member States experts will be given the chance to react to the amended version of the draft delegated act.

A Commission Non-Paper, which was not released with the package, stipulates three scenarios where the public consultation requirement for Delegated Acts would not apply to:

(1) Cases where the Commission has no margin of discretion relating to the content of the delegated act; (2) Cases where the drafts have been prepared by an EU agency or body and have been subject to full public consultation before being submitted to the Commission, who does not have the intention to significantly modify them and; (3) Cases where the delegated act is adopted under the urgency procedure.

For Implementing Acts the proposal for a new Inter-institutional Agreement only briefly mentions changes to the process of preparing such measures. Whenever broader expertise is needed in the early preparation of draft Implementing Acts, the Commission intends to make use of expert groups, consult targeted stakeholders and carry out public consultations, as appropriate.

The Better Regulation Communication clearly states that Implementing Acts subjected to Committee opinion will also be open to the public for four weeks. This should enable stakeholders to provide feedback before Member States would cast their vote in the relevant Committee.

A Commission Non-Paper stipulates five scenarios where the public consultations would not be carried out, when:

(1) The draft implementing acts concern financial management (such as grants and annual work programmes); (2) The draft implementing acts are based on scientific opinions from an agency or scientific committee on which a public consultation has already taken place and where the Commission follows the scientific recommendations; (3) The draft implementing acts have been prepared by an EU agency or body and have been subject to full public consultation before being submitted to the Commission, who does not have the intention to significantly modify them; (4) The Commission has no margin of discretion or; (5) The consultation is not appropriate for other justified reasons such as cases that involve business secrets or security threats and cases that influence markets.

Implementation and Application

The Commission wants Member States to clearly communicate to their public on the measures they take to transpose or implement EU legislation or EU budget. Member States should also make clear distinctions between measures that are a necessary consequence of EU legislation, and additional substantial or procedural elements.

The impact of such additional measures (gold-plating) should be assessed by Member States, before the adoption. Member States should also explain why additional measures are taken. The Commission also wants Member States to be cooperative in supplying information and data needed to monitor and evaluate the implementation of EU law.

Stage 4 – Ex-Post Evaluation

The Commission intends to inform both the European Parliament and Council of its multi-annual planning of evaluations of existing legislation.

The Commission wants all significant amendments or changes in EU legislation to be preceded by an evaluation of the efficiency, effectiveness, relevance, coherence and added value of existing law and policy.

The Commission also argues that all EU spending and non-spending activities should be evaluated in a proportionate way. Therefore, the Commission proposes a systematic consideration of review clauses, or sunset clauses should legislation only apply for a fixed period of time.

The Commission plans to identify where simplification or burden reduction is needed through the Regulatory Fitness and Performance (REFIT) Programme. Any proposals to repeal obsolete acts or recast or replace acts where necessary would be included in the Commission’s Work Programme.

3. The Regulatory and Performance Programme (REFIT)

In the Better Regulation Communication, the Commission also provides more details on the REFIT Programme, launched in 2012, which is used to ensure that EU legislation remains “fit for purpose:

The Refit Programme

The Commission wants REFIT to be used to identify new policy challenges by:
• Focusing on the most important sources of inefficiency and unnecessary burden; 
• Estimating the potential benefits and cost savings to proposals and updating estimates after legislation is adopted;
• Acting as a source of suggestions to improve EU legislation;
• Featuring in the Commission’s yearly work programme and in its political dialogue with other EU institutions.

The Use of REFIT

The Commission argues that the reviews by REFIT could help design future legislative proposals and develop alternative approaches should regulatory costs be found to be too high. The initial focus is on reducing burdens notably with regards to public procurement, business statistics and chemicals Legislation. The Commission plans to announce new initiatives later in 2015.

Secondly, outdated legislation should be repealed. REFIT has already identified twenty-three candidates for repeal. The Commission plans to extend annual exercises to identify outdated legislation, which is currently only being carried out in agriculture and fisheries.

Thirdly, reviews and comprehensive evaluations should prepare for future action in a wider range of policy areas and legislation.

Finally, implementation must be improved, for example through including launching a review of reporting requirements to see how burdens can be alleviated; Cooperation to identify ways to enhance efficient application of EU law at national and local level; Ensuring EU rules are properly transposed and implemented in all Member States.

Finally, the management of EU funding should be simplified. This simplification process will be monitored through an Administrative Simplification Scoreboard.

The REFIT Platform

The Platform will consist of two standing groups, one for Member State experts (government group) and one for representatives of business, social partners and civil society (stakeholder group).

The former will consist of 28 high-level experts (one from each Member State) and the latter of up to 20 business people (including from SMEs), representatives of social partners, NGOs and the European Economic and Social Committee and the Committee of the Regions. Both groups will meet annually. The First Vice-President of the Commission will chair the Platform. Separate meetings of the two groups will be chaired by the RSB Chair.

All stakeholders will have access to the Platform to express their views on the impact of EU legislation. They will even be able to give suggestions on how legislation can be improved. The Platform will consider those suggestions, focussing on specific themes and make suggestions to the Commission.

The Commission will then respond to all suggestions of the Platform and explain what it plans to do. If suggestions relate to national transposition or implementation issues, the Commission plans to ask Member States to do the same.

Next Steps

The Communication on Better Regulation has been sent to the Council and the European Parliament. In the meantime, the Commission will continue to carry out negotiations with the Parliament and Council on the proposed Inter-institutional Agreement, with the aim of completing negotiations by the end of 2015.

The Inter-institutional Agreement would replace the 2003 Inter-institutional Agreement on better law-making and the 2005 Inter-institutional Common Approach to impact assessment.