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OCTOBER 2016

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WHAT DOES IT MEAN FOR EU PUBLIC AFFAIRS?

The ‘Better Regulation’ package

10 GRAPHS TO HELP YOU UNDERSTANDand Inter-institutional Agreement

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THE FIVE MAJOR INITIATIVES OF THE ‘BETTER REGULATION’ PACKAGE

President Jean-Claude Juncker has made ‘Better Regulation’ a flagship initiative of his Commission, emphasising this priority by granting the portfolio to his First Vice-President Frans Timmermans. The objective: guarantee that EU action is effective, transparent and inclusive across all stages of the policy cycle – from early conception to implementation and review – and ensure that EU law does not impose unnecessary administrative burden and red tape on stakeholders.On 19 May 2015, Frans Timmermans unveiled a package of concrete measures aiming to make ‘Better Regulation’ a reality. The package consisted of five major initiatives, including a proposal for an Inter-institutional Agreement which, following negotiations between the Commission, European Parliament and Council, was signed in April 2016.

Inter-institutional Agreement on Better Law-making

Commission Communication and Decision setting up a Regulatory Scrutiny BoardBETTER REGULATION PACKAGE

Communication on Better Regulation

Commission Communication and Decision setting up a REFIT Platform

Better Regulation Guidelines (incl. on impact assessments) and Toolbox

(over 400 pages!)

SIGNED AND ENTERED INTO FORCE ON 13 APRIL 2016

ADOPTED BY THE COMMISSION

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CHANGES AT FOUR STAGES IN THE EU DECISION–MAKING PROCESS

The impact of the package on each of these four phases is illustrated in the following pages.

1. Drafting

Impact assessment by Commission of proposals, with an extended role for the Regulatory Scrutiny

Board

Ordinary legislative procedure:

An appropriate degree of transparency in trilogues

Delegated and implementing acts:

Possible impact assessment, expert groups

confirmed and public consultation Overall assessment of

effectiveness of legislation: REFIT actions, the REFIT

Platform and the possible involvement of the

Regulatory Scrutiny Board

2. Adoption

3. Implementation

4. Ex post evaluation

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COMMISSION REGULATORY SCRUTINY BOARD – ENHANCED ROLE FOR CIVIL SOCIETY

In operation since 1 July 2015, the RSB’s role is to scrutinise the quality of and issue opinions on all impact assessments, major evaluations and fitness-checks carried out by the Commission.

In principle, the Commission services are obliged to re-submit their impact assessments if the RSB delivers a negative opinion. However, the Commission can, as a political institution, decide to move ahead without making changes, although it must publicly explain its decision.

In 2016, the RSB has so far issued opinions on 34 initiatives.

COMMENTS

The involvement of external experts

Commission can disregard RSB opinion in certain circumstances

Until now, they have been under-estimated and under-used. Impact assessments should genuinely be part of a Public Affairs toolbox. TIP :• Map out members of inter-service steering groups

• Closely monitor the impact assessment process and intervene where necessary

7 MEMBERS

COMMISSION SECRETARIAT GENERAL:ADMINISTRATIVE SUPPORT

• Chair: Anne Bucher• Didier Herbert (COM)• Vassili Lelakis (COM)• Bernard Naudts (COM)• Nils Bjoerksten (External)• Isabelle Schömann (External)• Third external member TBD

INTER-SERVICE STEERING GROUPA group comprising officials from the lead Commission DG

and other DGs, allowing the latter to give input into Commission initiatives such as impact assessments

Ò Quorum: 4 members (incl. Chair)

Ò Simple majority vote if no consensus, Chair has casting vote in case of a tie

Ò Fixed term of 3 years

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A PUSH TOWARDS MORE IMPACT ASSESSMENTS (IA)

COMMENTS

• Imbalance between EP and Council

• The ‘onion effect’: layer after layer after layer will not necessarily make the decision-making process smoother and more balanced

• What about timing? A surely lengthier adoption process.

COMMISSION REGULATORY

SCRUTINY BOARD

DRAFT IA

PUBLICATION OF LEGISLATIVE

PROPOSALADOPTION OF

LEGISLATIVE ACTIMPLEMENTATION

OF LEGISLATIVE ACT

COUNCIL IMPACT ASSESSMENT

No IA unit in place yet

Inter-institutional Agreement (IIA) on Better Law-making gives EP and Council the right to

carry out IAs on substantial amendments…

…but this is not an obligation!

OR

EP IMPACT ASSESSMENT “Directorate for

Impact Assessment and European Added Value”

POSSIBLE IA ON “SUBSTANTIAL

AMENDMENTS”

IIA on Better Law-making calls

on COM to do IA on delegated and implementing acts

with “significant economic, environmental or social

impacts”

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IMPACT ASSESSMENT STRUCTURE WITHIN THE EUROPEAN PARLIAMENT – SLOWING DOWN THE PROCESS

CURRENT TASKS OF THE EP IMPACT ASSESSMENT DIRECTORATE INCLUDE:

• In-house appraisals of Com-mission Impact Assessments;

• Substitute or complementary Impact Assessments (where there is no Commission IA or the IA is not comprehensive);

• Outsourcing IAs on substantive amendments being considered by an EP Committee;

• Routine screening of the road-maps under Commission’s Annual Work Programme, to identify proposals including IAs.

COMMENTS

• Many MEPs insist that given their democratically elected role as EU legislator, they cannot agree to a reduction of their legislative role and be forced into doing IAs.

• Joe Dunne, Head of the EP’s Directorate for Impact Assessment, believes IAs do not slow down the legislative process too much, and time can usually be found during committee deliberations. Regarding cost, outsourcing an IA can range from €20,000-€40,000.

• There is currently great uncertainty about how and when IA will be performed by the European Parliament.

WHAT WILL THE COUNCIL DO?

At this point, there is no unit in the Council devoted to impact assessment. A third of Member States are reportedly in favour of setting up such a unit but so far the initiative has been resisted.

Ex Ante Impact

Assessment Unit

Policy Performance

Appraisal Unit

Ex Post Impact

Assessment Unit

Directorate for Impact Assessment and European Added Value

European Parliament Directorate-General for Parliamentary

Research Services

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INFORMAL TRILOGUES – TOWARDS MORE TRANSPARENCY?

It is now a systematic practice for the European Parliament, Council of Ministers and European Commission to hold informal three-way negotiations (known as “trilogues”), with the aim of reaching agreements on legislative acts at the first reading stage. These informal trilogues are always held behind closed doors, the role of stakeholders is limited and information about the meetings is very rarely made public.

The IIA on Better Law-making addresses this issue as follows: “The three Institutions will ensure the transparency of legislative procedures, on the basis of the relevant legislation and case law, including an appropriate handling of trilateral negotiations.”

COMMENTS

• The phrase “appropriate handling” is vague and gives little indication of what it actually means.

• Will four-column documents be made public systematically? The answer is probably ‘no’.

• The Commission is promoting an even earlier coordination of activity between the three Institutions. While certainly efficient this is again far from transparent and democratic.

• The EU decision-making system has the potential to become transparent, but so far the trend has been towards a more closed, opaque system with a now well-known slide towards ‘‘legislation lite’’, which in turn leads to more and more secondary legislation.

European Parliament Council of Ministers

European Commission

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PREPARATION OF DELEGATED ACTS (DA) – MORE TRANSPARENCY DOES NOT MEAN LESS COMPLEXITY

COMMENTS

• Roadmap & impact assessment only when DA has a ‘significant impact’ = rare

• Increased transparency in Expert Groups: drafts shared with members, EP & Council can attend as observers

• 4-week public consultation: late in the process and illogically takes place after expert group discussion

• Exceptions to consultation are open to interpretation

• Slowing down of the process• Consultation = ticks the box but

insufficient; direct lobbying will still be required

Roadmap & Agenda Planning 12 months

before adoption (if ‘significant impact’)

The new IIA on Better Law-making calls on the Institutions to negotiate objective criteria to help delineate delegated acts from implementing acts. However, the talks may not bear much fruit as each Institution will likely maintain its own legal interpretation.

Impact assessment

(if ‘significant impact’)

4-week stakeholder consultation

Expert group given chance to react

if changes made by stakeholders

NEW

NEW

Drafted by Commission

Unit

Expert group (Member State

experts) consulted on draft

Delegated act sent to EP

and Council for scrutiny

Legislative act

adopted

Delegated act adopted via Commission internal

process

No consultation carried out when:→ No discretion over content

→ Already drafted and submitted for consultation by another body

→ Urgency procedure

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PREPARATION OF IMPLEMENTING ACTS (IA) – UNDERMINING THE FAST-TRACK PROCEDURE?

COMMENTS

• Numerous exceptions to the need for consultation.

• Slowing down what is supposed to be a fast-track process.

• More consultations = more transparency, but this does not mean less complexity.

• Consultation = ticks the box but insufficient as such; direct lobbying will still be required.

Roadmap & Agenda Planning 12 months

before adoption (if significant)

Impact assessment

(if significant)

4-week stakeholder consultation for “important”

implementing acts

NEW

Drafted by Commission

Unit

Possible initial discussion of draft by comitology

committee

Comitology committee votes on draft

implementing act

Legislative act

adopted

Implementing act adopted

by Commission

No consultation carried out when:→ Concerns financial management

→ No discretion over content

→ Already drafted and submitted for consultation by another body

→ Urgency procedure

→ Individual measures

The 4-week consultation tool demonstrated its value in September 2016 when the Commission was pressured into withdrawing a draft implementing act on roaming. After just 4 days of consultation, 140 negative comments from the public were received.

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REGULATORY FITNESS AND PERFORMANCE (REFIT) FOR EX-POST EVALUATION

The Regulatory Fitness and Performance Programme (REFIT) is nothing new and has already been an objective of the Commission for some years. The goal of the ‘Better Regulation’ package is to strengthen REFIT and make it, in the Commission’s words, “more targeted, quantitative, inclusive and politically prioritised.” The aim of REFIT is to make sure existing EU legislation is “fit for purpose”, guaranteeing its effectiveness and efficiency while removing red tape and administrative costs where possible. Concretely, REFIT manifests itself via a number of possible ex post actions:

e.g. Directive on retrofitting of mirrors in heavy goods vehicles

e.g. Directive on misleading advertising

Incorporating successive amendments into one single act, e.g. trade legislationAssessing relevance,

coherence, effectiveness and EU added value of legislation. Identify opportunities for simplification and reduction burden e.g. General Food Law Regulation

Assessing effects of all EU legislation on profit margins and competitiveness in the internal market e.g. chemicals and construction sectors.

Part of normal process of review after EU legislation enters into force e.g. Renewable Energy Directive

COMMENTS

• REFIT covers a lot of actions which are – even for Commission officials – not always easy to understand and distinguish.

• The goal is honorable but the concrete execution may be overly complicated. Will it succeed?

REPEALS

SIMPLIFICATIONS

CODIFICATIONS AND RECASTS

FITNESS CHECKS

CUMULATIVE COST

ASSESSMENTSEVALUATIONS

REFIT ACTIONS

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REFIT PLATFORM: A PERMANENT DIALOGUE FORUM, BUT WILL IT DELIVER RESULTS?

The REFIT Platform was set up in 2015 to provide a permanent forum for dialogue between the Commission, Member States and stakeholders on how to improve EU legislation in the context of REFIT. The Platform collects concerns or suggestions from stakeholders (e.g. on cutting red tape) and forwards them to the Commission or Member State concerned, who will reply explaining what action (if any) they will take to address the concern. The Commission can also request the REFIT Platform to give information and comments on any planned or current REFIT initiative.

Ad hoc experts may be invited

PLATFORM CHAIRFirst Vice-President of the Commission Frans Timmermans

Deputy: Anne Bucher, Chair of the Regulatory Scrutiny Board (RSB)

GOVERNMENT GROUPChair: Anne Bucher

28 experts from national authorities appointed by Member States (rank: deputy Director-General from national ministry).Full list of members available here

WORKING PARTIES

STAKEHOLDER GROUPChair: Anne Bucher

Up to 20 experts from business/SMEs, social partners, civil society, 1 EESC expert, 1 CoR expert. Full list of members available here

WORKING PARTIES

COMMENTS

Provides stakeholders with an additional means of involvement

Heavy structure which needs to demonstrate whether it can deliver tangible results

Track record so far: the full REFIT Platform has met twice, while the Government group and Stakeholder group have each met three times.

Overall, it has considered over 100 contributions submitted to it, producing 17 opinions with concrete suggestions on various policy issues.

Ad hoc experts may be invited

Ad hoc experts may be invited

1 annual joint

meeting

COMMISSION SECRETARIAT-GENERAL: ADMINISTRATIVE SUPPORT

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• The ‘Better Regulation’ package is an ‘oeuvre’ of more than 700 pages. The motivation for delivering on this objective is unquestionably noble. However, we must ask whether this package is merely a symbol of simplification and better regulation: very large, lacking precision, and creating additional bodies in an already complex decision-making process.

• The goal of more stakeholder involvement and transparency seems to be at least partially achieved (e.g. consultation on delegated acts). However, from a public affairs point of view, this will by no means generate a simpler system. As always, public affairs practitioners wishing to remain effective will need to integrate these changes into their day-to-day work and use the opportunities presented.

• One year on, we may say that the package has made improvements to the EU decision-making process, but more needs to be done.

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Successive delays in the publication of the draft inter-institutional agreement (IIA) have inevitably led to leaks. With inter-service consultation underway, the text is being commented on and validated before its expected submission to the Commission College on 19 May. Thus, over recent weeks, we have gotten a flavour of the draft that will be submitted to the European Parliament (EP) and Council, with final adoption predicted by Christmas 2015.

Visually speaking, the text is complicated by the fact that there is not one, but several documents: a number of Commission communications on Better Regulation, the proposal for a future IIA with many sections (stakeholder consultations, criteria for distinguishing delegated and implementing acts, transparency, etc.) as well as annexes on a ‘Regulatory Scrutiny Board’ and a new ‘REFIT Platform’.

Good intentions, but avoiding the real issues

This package does have some good intentions. Clarifying the distinction between delegated acts and implementing acts is positive, as is the goal of making the role of Expert Groups systematic in consultations on draft delegated acts, as well as involving the EP more. Also interesting are the proposals to consult stakeholders and draw up indicative lists of delegated acts planned to be adopted in the future.

It is better than nothing, but at the end of the day the system will remain the same, with its complexity, opacity and case-by-case management. The Regulatory Scrutiny Board (replacing the Commission’s internal Impact Assessment Board) and the creation of a REFIT Platform (a forum of Member States and stakeholders that will assess the regulatory fitness of EU legislation) equally represent good intentions.

But ultimately they will make the process even more burdensome and less operational. The Commission is constantly adding extra layers to a cake that is already very thick. The proposed changes to impact assessments are notable: every Institution would have its own framework of impact assessment, overseen by a co-ordinating inter-institutional body!

Could we have hoped for better?

The Commission is playing things safe, not taking any risks and avoiding provoking a full-on confrontation with the EP and/or the

Council. But it is also conscious of protecting as much as possible the prerogatives it obtained under the Treaty of Lisbon. Given how urgent and acute the problems are, this is a low-risk approach, lacking in ambition and vision.

Could it be otherwise? In all honesty, no. The Commission is not capable of remedying defects that are undermining the EU from within. In particular, successive Treaty reforms have never addressed the key questions: defining the goal of the EU (federal system or free trade area?), its boundary (expanding how far?) and how to simplify it. On these three crucial issues, the result has been fiasco.

Another on-going source of blockage is the excessive number of Commissioners, diluting the Commission’s political power and strengthening its bureaucratic character. With such a College, regardless of the ability of its members, can we expect anything more than a lumbering beast, based on the lowest common denominator and ineffective governance?

The EU legislative agenda is empty

On 22 April, the news agency Euractiv reported that a number of important health files (e.g. alcohol labelling, endocrine disruptors, fatty acids) have been delayed due to the multiplication of decision-makers at the highest level of the Commission, leading to de facto paralysis. This has been going on for six months now.

Some interest groups might be delighted the Commission has forgotten about them, but this legislative void, mixed with growing delays and inefficiency, gives me a deep feeling of anxiety.

DG

EDITORIAL

Draft inter-institutional agreement: disappointing, but could it be better?

ContentsEP hearing: secondary legislation linked to accountability and risk of corruption 2

Court of Justice clarifies power of withdrawal 3

Publication date of draft IIA pushed back again 4

New Anti-Money Laundering rules 5

Academic article on information flows in comitology 6

Ecodesign Directive: state of play 7

Report on pharma delegations / Events 8

#15, April 2015www.comitology.eu

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