JUNE 2015
WHAT DOES IT MEAN
FOR EU PUBLIC AFFAIRS?
The ‘Better Regulation’ package
and Inter-institutional Agreement
10 GRAPHS TO HELP YOU UNDERSTAND
Copyright PACT European Affairs
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1
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, Frans Timmermans unveiled a package of concrete measures aiming to make ‘Better Regulation’ a reality. The package
consists of five major initiatives, with only the first one requiring actual political negotiations with the European Parliament and the
Council of Ministers.
Proposal for an Inter-institutional
Agreement on Better Regulation, with
revised Common Understanding on
delegated acts
T O BE NEGOTIATED
BY THE THREE INSTITUTIONS
(ARTICLE 295 TFEU)
Communication on Better Regulation
BETTER REGULATION PACKAGE
Commission Communication and Decision
setting up a Regulatory Scrutiny Board
Commission Communication and Decision
setting up a REFIT Platform
Better Regulation Guidelines
(incl. on impact assessments) and Toolbox
(over 400 pages!)
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ADOPTED BY THE
COMMISSION
CHANGES AT FOUR STAGES IN THE EU DECISION–MAKING PROCESS
1. Drafting
Impact assessment by
Commission of proposals,
with an extended role for
the Regulatory Scrutiny
Board
2. Adoption
Ordinary legislative
procedure:
Impact assessments by
European Parliament and
Council & trilogues
Delegated and
implementing acts:
Possible impact
assessment, expert groups
confirmed and public
consultation
3. Implementation
Overall assessment of
effectiveness of legislation:
REFIT actions, the REFIT
Platform and the possible
involvement of the
Regulatory Scrutiny Board
4. Ex post
evaluation
The impact of the package on each of these four phases is illustrated in the following pages.
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3
COMMISSION REGULATORY SCRUTINY BOARD – ENHANCED ROLE FOR CIVIL SOCIETY
Replacing the “Impact Assessment Board”, 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.
The RSB, however, will not have the power to block Commission
proposals for which the impact assessment is found unsatisfactory.
In these cases, the Commission can move ahead with its proposal
but must publicly explain its decision.
The decision establishing the RSB will take effect from 1 July 2015.
COMMENTS
The involvement of external experts
No possibility for RSB to block Commission
proposals
Until now, they have been under-estimated and
under-used. Impact assessments should genuinely
be part of a Public Affairs toolbox.
Ò Quorum: 4 members
(incl. Chair)
Ò Simple majority vote if no
consensus, Chair has casting
vote in case of a tie
7 MEMBERS
Ò Fixed term of 3 years
• Chair (a Director General)
• 3 senior officials from
within the Commission
• 3 temporary agents
recruited from outside
the Commission
COMMISSION SECRETARIAT-GENERAL:
ADMINISTRATIVE SUPPORT
TIP :
• Map out members of inter-service steering groups
• Closely monitor the impact assessment process
and intervene where necessary
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INTER-SERVICE STEERING GROUP
A group comprising officials from Commission DGs
(other than the lead DG) allowing them to give input
into Commission initiatives such as impact assessments
THE EU LEGISLATIVE PROCESS – A PUSH TOWARDS MORE IMPACT ASSESSMENTS (IA)
Commission can offer assistance and share data on its
own initiative or on request from the EP or Council
COUNCIL IMPACT
ASSESSMENT
But nothing in place yet
EP IMPACT
ASSESSMENT
“Directorate for Impact
Assessment and
European Added Value”
COMMISSION
REGULATORY
SCRUTINY BOARD
INDEPENDENT PANEL
Can be convened by any of 3 Institutions
in case of conflict to assess substantial
amendments put forward during
legislative negotiations
1 member per Institution
COMMENTS
OR
• Imbalance between EP and Council
• Surely a blockage point
negotiations on the IIA
in
the
• The ‘onion effect’: layer after layer
after layer will not necessarily make the
decision-making process smoother and
more balanced
DRAFT
IA
PUBLICATION
OF LEGISLATIVE
PROPOSAL
BEFORE ADOPTING ANY
SUBSTANTIAL AMENDMENT TO
THE PROPOSAL
• What about timing? A surely lengthier
adoption process
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IMPACT ASSESSMENT STRUCTURE WITHIN THE EUROPEAN PARLIAMENT – SLOWING DOWN THE PROCESS
CURRENT TASKS OF THE
EP IMPACT ASSESSMENT
DIRECTORATE INCLUDE:
European Parliament
Directorate-General for Parliamentary
Research Services
• In-house appraisals of Commission Impact Assessments;
Directorate for Impact Assessment
and European Added Value
• 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 roadmaps under Commission’s
Annual Work Programme, to
identify proposals including
IAs.
Ex Ante
Impact
Assessment
Unit
Ex Post
Impact
Assessment
Unit
Policy
Performance
Appraisal
Unit
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.
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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.
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 proposal for an inter-institutional agreement addresses this issue with the following
passage: “The three institutions will ensure an appropriate degree of transparency of
the legislative process, including of trilateral negotiations between the three institutions.”
European Parliament
Council of Ministers
COMMENTS
• The phrase “appropriate degree of
transparency” 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 wellknown slide towards ‘‘legislation
lite’’, which in turn leads to more
and more secondary legislation.
European Commission
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PREPARATION OF DELEGATED ACTS (DA) – MORE TRANSPARENCY DOES NOT MEAN LESS COMPLEXITY
Legislative
act
adopted
Expert group
(Member State
experts) consulted
on draft
Impact
assessment
(if ‘significant
impact’)
Expert group given
chance to react
if changes made by
stakeholders
Delegated act
sent to EP
and Council
for scrutiny
• 4-week public consultation: late
in the process and illogically takes
place after expert group discussion
NEW
Drafted by
Commission
Unit
4-week
stakeholder
consultation
• Exceptions to consultation are
open to interpretation
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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• Roadmap & impact assessment
only when DA has a ‘significant
impact’ = rare
• Generalised use of expert groups:
what about the Parliament’s role?
NEW
Roadmap & Agenda
Planning 12 months
before adoption
(if ‘significant impact’)
COMMENTS
• Slowing down of the process
• Consultation = ticks the box but
insufficient; direct lobbying will
still be required
The revised Common
Understanding on delegated acts
also introduces objective criteria
for helping the Institutions
distinguish between delegated
and implementing acts. Although
this is good, each Institution will
likely continue to hold its own legal
interpretation.
PREPARATION OF IMPLEMENTING ACTS (IA) – UNDERMINING THE FAST-TRACK PROCEDURE?
Legislative
act
adopted
Impact
assessment
(if significant)
Possible initial discussion
of draft by comitology
committee
Comitology committee
votes on draft
implementing act
COMMENTS
• Numerous exceptions to
the need for consultation;
will this be a dead letter?
• Slowing down what is
supposed to be a fast-track
process.
• More consultations = more
transparency, but this does
not mean less complexity.
NEW
Roadmap & Agenda
Planning 12 months
before adoption
(if significant)
Drafted by
Commission
Unit
4-week stakeholder
consultation for “important”
implementing acts
Implementing act
adopted
by Commission
• Consultation = ticks the box
but insufficient as such;
direct lobbying will still be
required.
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
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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:
REPEALS
REFIT
ACTIONS
e.g. Directive on retrofitting of
mirrors in heavy goods vehicles
SIMPLIFICATIONS
e.g. Directive on
misleading advertising
CODIFICATIONS
AND RECASTS
CUMULATIVE
COST
ASSESSMENTS
EVALUATIONS
Part of normal process
of review after EU
legislation enters into
force e.g. Renewable
Energy Directive
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Assessing effects of
all EU legislation on
profit margins and
competitiveness in the
internal market
e.g. chemicals and
construction sectors.
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FITNESS
CHECKS
Assessing relevance,
coherence,
effectiveness and
EU added value of
legislation. Identify
opportunities for
simplification and
reduction burden
e.g. General Food Law
Regulation
Incorporating
successive
amendments into one
single act,
e.g. trade legislation
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?
REFIT PLATFORM: A PERMANENT DIALOGUE FORUM, BUT WILL IT DELIVER RESULTS?
The REFIT Platform is a new initiative, intended to establish a permanent forum for on-going dialogue between the Commission,
Member States and stakeholders on how to improve EU legislation in the context of REFIT.
The Platform will collect concerns or suggestions from stakeholders (e.g. on cutting red tape) and forward 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.
COMMENTS
PLATFORM CHAIR
Ad hoc
experts
may be
invited
First Vice-President of the Commission Frans Timmermans
Deputy: Chairperson
the Regulatory
Scrutiny Board (RSB)
Ad hocofexperts
may be invited
GOVERNMENT GROUP
STAKEHOLDER GROUP
Chair: RSB Chairperson
Chair: RSB Chairperson
28 experts from national
authorities appointed
by Member States
(rank: deputy Director-General
from national ministry).
WORKING
PARTIES
1 annual
joint
meeting
Up to 20 experts from
business/SMEs, social
partners, civil society, 1 EESC
expert, 1 CoR expert.
Appointed by Commission
President after a call for
applications.
COMMISSION SECRETARIAT-GENERAL:
ADMINISTRATIVE SUPPORT
WORKING
PARTIES
Ad hoc
experts
may be
invited
Provides stakeholders
with an additional
means of involvement
Heavy structure that
needs to demonstrate
whether it is actually
operational and can
deliver results
More stakeholders
means more interests
and a more difficult
arbitration
Ultimately, what is the
use of this platform for
stakeholders?
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11
BETTER REGULATION: MORE POWER FOR BUREAUCRATS THAN POLITICIANS?
• 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.
• The negotiations on the inter-institutional agreement will be time-consuming and potentially turbulent. The package is
an opportunity to improve EU decision-making but this will require strong interest and involvement from civil society
in the debate.
Founders of PACT European Affairs
Lobbyists and lecturers
#15, April 2015
Published in 20 languages and
Support tool for vocational training
Contents
more than 100,000
copies, the
Draft inter-institutional agreement:
EP hearing: secondary legislation linked to accountability
disappointing, but could it Practi
be better?
cal Guide is THE
and riskreference
of corruption
2
work for understanding
the
EUpower of withdrawal
Court of Justice
clarifies
3
at Campus Brussels
Successive delays in the publication of the draft inter-institutional
Publication date of draft IIA pushed back again
4
processes.
agreement (IIA) have inevitably led to decision-making
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.
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
The new Practical
Guide helps you master
Visually speaking, the text is complicated by the fact that there
is not one, but several documents: athe
numberins
of Commission
and outs
ofit isstructures,
powers
and
Council. But
also conscious of protecting
as much as possible
communications on Better Regulation, the proposal for a future the prerogatives it obtained under the Treaty of Lisbon. Given how
IIA with many sections (stakeholder consultations, criteria for urgent and acute the problems are, this is a low-risk approach,
procedures
the European Union, clearly and
distinguishing delegated and implementing
acts, transparency, of
lacking in ambition and vision.
etc.) as well as annexes on a ‘Regulatory Scrutiny Board’ and a new
Could diagrams,
it be otherwise? In all examples
honesty, no. The Commission
‘REFIT Platform’.
concisely, with
andisQR codes.
not capable of remedying defects that are undermining the EU
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 GUÉGUEN
are the proposals to consult
stakeholders and draw up indicative lists of delegated acts planned
The Member States have signed up
to be adopted in the future.
to an infernal system
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.
Daniel Guéguen
On the Brussels lobbying scene for 40 years, he knows all the ins and outs of the complex
EU machine. His many books have been widely published throughout Europe. He teaches
at Georgetown, Harvard, Monash, ULB, EDHEC, Collège d’Europe, HEC, London Metropolitan,
George Washington University... Daniel is a federalist and a supporter of a Europe of citizens.
“It’s like a detective story, an Agatha Christie, ...”
“An enormous eye-opener”
“Bureaucracy working for itself”
Jiri Havel, MEP
Peter Kramer, European Business Review
Dan Alexe, New Europe
comitology - hijacking european power ?
EUROPEAN
Daniel
Guéguen
daniel guéguen
DANIEL
Another20 PAGES
on-going
source of blockage is the excessive number of
ON THE
ORPHACOL CASE
Commissioners,
diluting the Commission’s political power and
strengthening its bureaucratic character. With such a College,
COMITOLOGY
regardless of the ability of its members, can we expect anything
It is better than nothing, but at the end of the day the systemHIJACKING
EUROPEAN
POWER?
more
than
a lumbering beast, based on the lowest common
L O B Bopacity
Y I Nand
G case-by- denominator and ineffective governance?
will remain the same, with its complexity,
case management. The Regulatory Scrutiny Board (replacing the
Commission’s internal Impact Assessment Board) and the creation The EU legislative agenda is empty
of a REFIT Platform (a forum of Member States and stakeholders
that will assess the regulatory fitness of PRICE:
EU €12legislation) equally On 22 April, the news agency Euractiv reported that a number of
important health files (e.g. alcohol labelling, endocrine disruptors,
represent good intentions.
fatty acids) have been delayed due to the multiplication of decisionBut ultimately they will make the process even more burdensome makers at the highest level of the Commission, leading to de facto
and less operational. The Commission is constantly adding extra paralysis. This has been going on for six months now.
layers to a cake that is already very thick. The proposed changes to
impact assessments are notable: every Institution would have its Some interest groups might be delighted the Commission has
own framework of impact assessment, overseen by a co-ordinating forgotten about them, but this legislative void, mixed with growing
delays and inefficiency, gives me a deep feeling of anxiety.
inter-institutional body!
With technical support from
Vicky Marissen
00 cover UK.indd 1
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
03/09/14 11:21
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DANIEL
Good intentions, but avoiding the real issues
Daniel
Guéguen
Vicky
Marissen
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