# C_2018440EN.01002801.xml

| 6.12.2018 | EN | Official Journal of the European Union | C 440/28 |
| --- | --- | --- | --- |

6.12.2018

EN

Official Journal of the European Union

C 440/28

---

Opinion of the European Economic and Social Committee on ‘The impact of subsidiarity and gold plating on the economy and employment’

(exploratory opinion requested by the Austrian Presidency)

(2018/C 440/05)

Rapporteur:

Co-rapporteur:

| Referral | Austrian Presidency of the Council, 12.2.2018 |
| --- | --- |
| Legal basis | Article 304 of the Treaty on the Functioning of the European Union |
| Section responsible | Single Market, Production and Consumption |
| Adopted in section | 4.9.2018 |
| Adopted at plenary | 19.9.2018 |
| Plenary session No | 537 |
| Outcome of vote
  (for/against/abstentions) | 192/1/1 |

Referral

Austrian Presidency of the Council, 12.2.2018

Legal basis

Article 304 of the Treaty on the Functioning of the European Union

Section responsible

Single Market, Production and Consumption

Adopted in section

4.9.2018

Adopted at plenary

19.9.2018

Plenary session No

537

Outcome of vote

(for/against/abstentions)

192/1/1

1.   Conclusions and recommendations

| 1.1. | The EESC welcomes the request of the Austrian Presidency of the Council of the European Union for an exploratory opinion on ‘The impact of subsidiarity and gold-plating on the economy and employment’. It adds value and more aspects to the ongoing debate on Better Regulation to provide legal certainty, clear rules and ‘to ensure that regulatory burdens on businesses, citizens or public administrations are kept to a minimum’ (1). The existing level of protection of citizens, consumers, workers, investors and the environment in Member States must not be questioned when implementing the EU legislation. |
| --- | --- |

1.1.

| 1.2. | The EESC reiterates its demand that future-related issues including debates on competences and on the level of regulations must be addressed at national and European level with the full participation of social partners and other civil society organisations. This is a fundamental expression of multi-level participatory democracy and must therefore be strengthened in the EU and the Member States. |
| --- | --- |

1.2.

| 1.3. | The EESC underlines the paramount importance of the principles of subsidiarity and proportionality to provide comprehensive and sound European law-making. It underlines that the EU should focus on areas in which EU law brings a significant added value. The European Commission (EC) should therefore identify issues which really need to be dealt with at EU level in the most efficient way. Whenever the decisions require due account being taken of national, regional and local characteristics, the respective authorities should have room for manoeuvre to specify these, with the active involvement of relevant stakeholders, including social partners. |
| --- | --- |

1.3.

| 1.4. | There are diverse views within the EESC regarding the term ‘gold-plating’ that reflect differences in the point of views of the various actors. Although there is no clear-cut definition, ‘gold-plating’ generally refers to a situation in which Member States introduce requirements above the minimum set out in EU legislation (mainly directives) in the course of transposition into national law. The EC should set out guidance in order to help the Member State to correctly transpose the respective requirements of a legal act while respecting the proportionality and subsidiarity principles, as well as fair competitive conditions. |
| --- | --- |

1.4.

| 1.5. | The EESC notes that — particularly in the light of subsidiarity and proportionality and in line with EU law — it is the Member States’ sole competence to introduce additional measures other than those foreseen by the EU (minimum) requirements in order to reflect their specific characteristics. Such decisions should be made in a transparent way, after consultation with social partners and stakeholders, and should be in conformity with EU legislation. In this connection, the EESC does not question Member States’ sovereignty, freedom and responsibility in establishing national laws and practices. |
| --- | --- |

1.5.

| 1.6. | The EESC calls on the European institutions and the Member States to strengthen their efforts to reduce unreasonable administrative burdens in order to boost growth and sustainable job creation. |
| --- | --- |

1.6.

| 1.6.1. | In the framework of the preparation of the Multiannual Financial Framework (MFF) for the period 2021-2027, the EESC urges the EC to swiftly take measures to tackle unnecessary administrative burdens which heavily impede ESIF investments — state aid, procurement compliance, audit practices and delayed or even retroactive adoption of universal detailed guidance. |
| --- | --- |

1.6.1.

| 1.6.2. | The EESC underlines that unnecessary regulatory and administrative burden are obstacles to maximising benefits and minimising the regulatory costs to businesses, citizens and public authorities. It reiterates the necessity of simplified, consistent and better quality regulation that should be well understood and implemented, with the equally indispensable involvement of all four levels of governance — EU, national, regional and local. |
| --- | --- |

1.6.2.

| 1.6.3. | As in previous opinions (2), the EESC recommends carrying out a thorough SME-test in EC impact assessments. |
| --- | --- |

1.6.3.

| 1.7. | The EESC reiterates that European minimum standards, especially in the context of EU social, consumer, environmental policies, aim at an approximation of living and working conditions across the EU towards upward convergence. Minimum standards in EU directives should not be understood as a ‘maximum level’, never to be strengthened in the course of their transposition into national legal systems. In the EESC’s view, popular acceptance of the European integration process, however, should not be jeopardised by regulatory competition through levelling down standards. All decisions must be taken in a transparent way and in an open dialogue with social partners and civil society organisations. |
| --- | --- |

1.7.

2.   Introduction

| 2.1. | The Austrian Presidency of the Council of the EU requested an exploratory opinion from the EESC on ‘The impact of subsidiarity and gold plating on the economy and employment’. |
| --- | --- |

2.1.

| 2.2. | The EESC notes that the request addresses both the principle of subsidiarity and gold-plating and broadens the current debate on Better Regulation on which the EESC has expressed its views in various recently adopted opinions (3). |
| --- | --- |

2.2.

| 2.3. | The issue of subsidiarity has recently gained new relevance, not least with the White Paper on the Future of Europe. The Task Force on Subsidiarity and Proportionality, established by Commission President Juncker in November 2017, submitted a report with recommendations for improving the application of the principles of subsidiarity (4).
  The EESC finds the character of the report to be restricted in some ways and believes that this reflects the limited composition of the Task Force. It therefore, strongly suggests that in the follow–up events representatives of civil society be actively included. The Committee considers it urgent to address the proportionality of European action and, more importantly, the areas in which the EU should intensify, reduce or even freeze its action in line with the interests of citizens, the economy and other societal interests. |
| --- | --- |

2.3.

The EESC finds the character of the report to be restricted in some ways and believes that this reflects the limited composition of the Task Force. It therefore, strongly suggests that in the follow–up events representatives of civil society be actively included. The Committee considers it urgent to address the proportionality of European action and, more importantly, the areas in which the EU should intensify, reduce or even freeze its action in line with the interests of citizens, the economy and other societal interests.

| 2.4. | For the EESC, these future-related issues must be addressed at national and EU level with the participation of the social partners and other civil society organisations. Giving them as much room as the local and regional level in the preparation and implementation of national and EU policies would directly contribute to visibly practising horizontal subsidiarity. |
| --- | --- |

2.4.

| 2.5. | The EESC welcomes the Austrian Presidency’s acknowledgments of the value of including the broad expertise of social partners and civil society organisations in the design, implementation and evaluation of policy action at national and EU level. This is a fundamental expression of multi-level participatory democracy and must therefore be strengthened in the EU and the Member States. |
| --- | --- |

2.5.

| 2.6. | In this regard, the EESC calls upon the Task Force to take due account of its opinions on subsidiarity and proportionality, which are also the basis of the comments and recommendations in this opinion. |
| --- | --- |

2.6.

3.   The principle of subsidiarity

| 3.1. | The principle of subsidiarity set out in Article 5 TEU is intended to ensure that EU action does not go beyond what is necessary to achieve the Treaty objectives and that the EU acts only in those areas that do not fall under its exclusive competence if the objectives of a legislative measure can be achieved more effectively at EU level than at national, regional or local level. |
| --- | --- |

3.1.

| 3.2. | The EESC underlines the paramount importance of these principles in a supranational community such as the EU and expressly welcomes the instruments established by the Treaty of Lisbon for compliance with the principle of subsidiarity — from the subsidiarity review before the adoption of a legislative act to subsidiarity complaints by national legislative bodies. |
| --- | --- |

3.2.

| 3.3. | The EESC also stresses that all areas foreseen by the TFEU need a well-functioning Europe and that the principle of subsidiarity must not be used to counteract EU action, which has clear European added value, to give a priori precedence to national approaches or even to withdraw the EU from key policy areas in advance. Only rules with European added value should be adopted. The EESC believes that the challenges which the continent is currently facing do not call for renationalisation towards ‘less Europe’ but rather for bold steps towards a better and more citizen-friendly Europe that also promotes cohesion. |
| --- | --- |

3.3.

| 3.4. | The EESC acknowledges that the role of Member States in the implementation of EU legislation is especially crucial in the case of the transposition of directives, which are binding concerning the result to be achieved but leave to the national authorities the choice of implementing form and methods as well as to decide — in line with EU law — to improve standards if deemed useful. At the same time, transposition should not hinder fair competitive conditions between all Internal Market players, which is important to its correct functioning. |
| --- | --- |

3.4.

| 3.5. | While Member States are responsible for transposing directives accurately and on time, it is the European Commission’s role as Guardian of the Treaties to ensure proper implementation at national level. This ‘shared responsibility’ should be clearly visible from the very start of the legislative process: good implementation depends on a clear, transparent and comprehensive impact assessment as the basis of a new EU law, clear and simple language of the proposal and realistic implementation deadlines. |
| --- | --- |

3.5.

| 3.6. | The EESC warns that even when the above requirements are met, however, the implementation at national, regional and local levels can prove to be insufficient and/or ineffective. In this regard, it reiterates its call on the EC to systematically strengthen its efforts in line with its competences to pursue cases more quickly and rigorously where Member States incorrectly transpose EU legislation or fail to do so (5) after having explored all options of cooperation. |
| --- | --- |

3.6.

| 3.7. | The EESC notes that a number of legal and political commitments have been perceived as overstretching the competence of EU institutions and as interfering with Member States’ domains and choices (e.g. national industrial relations and trade union initiatives; pensions, health and other social security systems or professional regulations, e.g. qualification criteria in the health sector).
  Therefore, the EESC equally objects not only to such an overstretching of competences by EU institutions but also to the transfer of important regulatory areas of the TFEU such as, for example, consumer protection, environmental protection standards and European social policy to national level under the pretext of subsidiarity. |
| --- | --- |

3.7.

Therefore, the EESC equally objects not only to such an overstretching of competences by EU institutions but also to the transfer of important regulatory areas of the TFEU such as, for example, consumer protection, environmental protection standards and European social policy to national level under the pretext of subsidiarity.

4.   Avoiding unnecessary regulatory and administrative burden — ‘gold-plating’

4.1.   The ‘gold plating’ debate

| 4.1.1. | When transposing EU legislation, Member States sometimes introduce more stringent or advanced measures than those set out by requirements in EU legislation (mainly directives) or they do not use the options offered by the directive for possible simplification. This phenomenon in many documents is called ‘gold-plating’. In the first case it is considered as ‘active gold-plating’ in the second case as a ‘passive gold-plating’. |
| --- | --- |

4.1.1.

| 4.1.2. | The EESC has diverse views regarding ‘gold-plating’ that also reflect differences of views among the various actors. For some stakeholders it is seen as an excess of norms, guidelines and procedures accumulated at national, regional and local levels, which creates unnecessary administrative burden and interferes with the expected policy goals to be achieved by transposed regulation. However, other stakeholders are of the opinion that the use of the stigmatised term ‘gold-plating’ would risk questioning some advanced Member States’ standards adopted democratically and introduced to their legal systems, particularly in the fields of labour, consumer and environmental law, as well as regarding the free professions. |
| --- | --- |

4.1.2.

| 4.1.3. | The EESC calls for a pragmatic and balanced approach and for the purposes of this opinion will focus on neutral and more precise terminology — in line with the Interinstitutional Agreement on Better Regulation of May 2016. |
| --- | --- |

4.1.3.

4.2.   Definition of ‘gold-plating’

| 4.2.1. | The EESC suggests defining ‘gold-plating’ more precisely. For cases where Member States transpose the content of EU legislation in a more ambitious way (on substance or procedurally) or strives to be consistent with national legislation expressions like ‘more advanced provisions’, ‘more stringent provisions’ or ‘higher requirements’ might be used. The expression ‘gold-plating’ should be limited to cases of unreasonable and unnecessary add-ons to EU legislation in the course of its transposition into national law, which cannot be justified in light of one or more goals of the proposed measure or which bring additional unnecessary administrative burden. In any case the expression ‘gold-plating’ is very general, its translation into many national languages is misleading and should be replaced by much more concrete term. |
| --- | --- |

4.2.1.

| 4.2.2. | Independently of terminology (and even when the term ‘gold-plating’ may be used), the EESC reiterates that this concept should in particular not refer to:






  — | Restricting established standards in fields such as labour, social, consumer or environmental law when transposing and implementing EU legislation; |
| --- | --- | --- |

4.2.2.

—

Restricting established standards in fields such as labour, social, consumer or environmental law when transposing and implementing EU legislation;

| — | National measures that have no (objective or temporal) connection to the transposition of EU-law; |
| --- | --- |

—

National measures that have no (objective or temporal) connection to the transposition of EU-law;

| — | Firming up the general provisions of EU law in the course of its transposition (e.g. establishing concrete legal sanctions in cases of infringement); |
| --- | --- |

—

Firming up the general provisions of EU law in the course of its transposition (e.g. establishing concrete legal sanctions in cases of infringement);

| — | Applying one out of several explicit options for the transposition of EU law; |
| --- | --- |

—

Applying one out of several explicit options for the transposition of EU law;

| — | Advanced national provisions going beyond minimum standards based on ‘non-regression clauses’ in EU law; |
| --- | --- |

—

Advanced national provisions going beyond minimum standards based on ‘non-regression clauses’ in EU law;

| — | Applying the content of a directive to similar cases so as to ensure coherence and consistency of national laws. |
| --- | --- |

—

Applying the content of a directive to similar cases so as to ensure coherence and consistency of national laws.

| 4.2.3. | The EESC reiterates that the principle of subsidiarity allows the Member States to introduce more stringent measures, exercising their right to ensure the achievement of different goals (e.g. economic, social or environmental) and to demonstrate their commitment to a high level of protection, to the specific character of legal instruments such as ‘directives’, as well as to certain limits of competences. The EESC underlines that such more stringent commitments should only be taken after a transparent and inclusive debate with the social partners and stakeholders and in a spirit of mutual understanding and a balanced decision-making process. |
| --- | --- |

4.2.3.

4.3.   ‘Gold-plating’ and Better Regulation

| 4.3.1. | In the context of the Better Regulation agenda, the EC recognises the right of Member States to go beyond the standards set out in EU legislation (‘gold-plating’), but it is concerned about the lack of transparency in this respect. The United Kingdom, the Netherlands, Belgium, Germany and Austria have established their systems to identify the cases of ‘gold-plating’. In the United Kingdom and in the Netherlands, ‘gold-plating’ is regulated by centralised official policies, aimed at fostering economic growth. |
| --- | --- |

4.3.1.

| 4.3.2. | The EESC in no way questions existing Treaty provisions, in particular EU or Member State competences, but reiterates the importance of respecting ‘the general principles of Union law, such as democratic legitimacy, subsidiarity and proportionality, and legal certainty’. This means, inter alia, respecting Member States’ democratic sovereignty, freedom and responsibility to design national laws and practices that take due account of the role of social partners in this respect. The EESC has always called for the promotion of simplicity, clarity and consistency in the drafting of Union legislation, as well as greater transparency in the legislative process. |
| --- | --- |

4.3.2.

| 4.3.3. | The EESC has repeatedly underlined that ‘European legislation is an essential factor in integration, not a burden or a cost to be reduced. On the contrary, when balanced, proportionate and non-discriminatory it is an important guarantee of protection, promotion and legal certainty for all European stakeholders and citizens’ (6). It reiterates its opinion that legislation is essential in order to achieve the objectives of the Treaty and to create the right environment for smart, sustainable and inclusive growth that benefits the public, business and citizens (7). In line with Article 3 TFEU, legislation also helps to improve well-being, protect the public interest and fundamental rights, promote a high level of social and environmental protection and ensure legal certainty and predictability. It should also prevent distortion of competition and social dumping (8). |
| --- | --- |

4.3.3.

| 4.3.4. | In the course of the transposition of directives, Member States sometimes add elements that bear no clear relation to the EU legislation concerned. The EESC thinks that these add-ons should be made evident either by transposing law or through documents related to them. The legitimacy of Member States to complement EU acts as the result of minimum harmonisation has generally to be recognised as long as it is transparent and respects the principles of non-discrimination and proportionality. There are many examples of non-minimalistic transposition of directives in the Member Statesthat can be seen in gold-plating. |
| --- | --- |

4.3.4.

| 4.3.5. | Where harmonisation is minimal, the EESC underlines that Member States are able to draft provisions that seek to achieve job creation, better living and working conditions, adequate social protection, a high and sustainable employment rate and the combating of exclusion (Article 151 TFEU), the promotion and development of SMEs and high standards of health and consumer protection (Articles 168 and 169 TFEU), as well as the protection in the environmental sphere (Article 191 TFEU) — without, however, erecting needless regulatory or administrative burden. |
| --- | --- |

4.3.5.

| 4.4. | The EESC believes that the following measures will help to avoid unnecessary regulatory and administrative burden:






  — | The EC should carry out integrated impact assessments (IAs) in the course of European legislation take due account of unnecessary burden and any other impact for any substantial regulatory text; |
| --- | --- | --- |

4.4.

—

The EC should carry out integrated impact assessments (IAs) in the course of European legislation take due account of unnecessary burden and any other impact for any substantial regulatory text;

| — | EU laws must be assessed on their own merits, on a case-by-case basis, in order to reach targeted harmonisation which allows, depending on the circumstances, a form of harmonisation that is advanced in some areas and less so in others. It is for the EC, through IAs, to suggest the most appropriate level of harmonisation, taking into account the need for a high level of protection; |
| --- | --- |

—

EU laws must be assessed on their own merits, on a case-by-case basis, in order to reach targeted harmonisation which allows, depending on the circumstances, a form of harmonisation that is advanced in some areas and less so in others. It is for the EC, through IAs, to suggest the most appropriate level of harmonisation, taking into account the need for a high level of protection;

| — | When transposing EU legislation, Member States at national and regional level should be fully transparent about any supplementary requirement that could negatively affect the Single Market, competitiveness and growth; |
| --- | --- |

—

When transposing EU legislation, Member States at national and regional level should be fully transparent about any supplementary requirement that could negatively affect the Single Market, competitiveness and growth;

| — | The fact that one Member State imposes less strict rules than another does not automatically mean that the latter’s rules are disproportionate and incompatible with EU law. It is for the Member State to assess on a case-by-case basis, taking into account the viewpoints of all stakeholders and the entirety of the regulatory context. Impact Assessment could be an important tool to that end; |
| --- | --- |

—

The fact that one Member State imposes less strict rules than another does not automatically mean that the latter’s rules are disproportionate and incompatible with EU law. It is for the Member State to assess on a case-by-case basis, taking into account the viewpoints of all stakeholders and the entirety of the regulatory context. Impact Assessment could be an important tool to that end;

| — | Any additional requirements during the transposition of directives should be accompanied by documents stating transparently specific reasons for these additions. |
| --- | --- |

—

Any additional requirements during the transposition of directives should be accompanied by documents stating transparently specific reasons for these additions.

| 4.5. | To avoid putting enterprises and other stakeholders at a competitive disadvantage vis-à-vis their counterparts in other Member States, the EC should set out guidance in order to help Member States to correctly transpose the requirements of a legal act while respecting the proportionality and subsidiarity principles and fair competitive conditions. In this respect, the EESC reiterates its demand for the highest possible involvement of social partners and other relevant interests in the transposition exercises as well as the strong involvement of Member States and national and regional parliaments in the respective ex-post assessments (9). |
| --- | --- |

4.5.

| 4.6. | EESC recommendations for efficient transposition: |
| --- | --- |

4.6.

| 4.6.1. | Member States should pay attention to the relevant implementation deadlines in order to allow sufficient time for consultations with all relevant stakeholders:






  — | When preparing the national framework positions for initial negotiations in the working bodies of the Member States, attention has to be paid to the transposition deadline; |
| --- | --- | --- |

4.6.1.

—

When preparing the national framework positions for initial negotiations in the working bodies of the Member States, attention has to be paid to the transposition deadline;

| — | They should check if EU directives provide for two deadlines, one for producing national implementing legislation and one concerning the date by which the legislation must take legal effect; |
| --- | --- |

—

They should check if EU directives provide for two deadlines, one for producing national implementing legislation and one concerning the date by which the legislation must take legal effect;

| — | The transposition deadline must be followed and monitored along the whole legislative process; |
| --- | --- |

—

The transposition deadline must be followed and monitored along the whole legislative process;

| — | The EC’s implementation plans provide support and assistance. |
| --- | --- |

—

The EC’s implementation plans provide support and assistance.

| 4.6.2. | Consultations:






  — | At EU level, EC assistance provided during the implementation process, such as recommendations and discussions in expert groups may be useful and contribute to a common understanding among Member States; |
| --- | --- | --- |

4.6.2.

—

At EU level, EC assistance provided during the implementation process, such as recommendations and discussions in expert groups may be useful and contribute to a common understanding among Member States;

| — | The European Commission should adjust the existing transposition methodology (guidelines) not only to ensure that the transposition of directives is not conflicting with European law but also to safeguard the effectiveness of the transposition; |
| --- | --- |

—

The European Commission should adjust the existing transposition methodology (guidelines) not only to ensure that the transposition of directives is not conflicting with European law but also to safeguard the effectiveness of the transposition;

| — | The provision by the EC of specialised web-based platforms (as the existing electronic notification interface) or an electronic database for concrete pieces of EU law to share best practices could be further developed. Multilevel governance should be fostered and include all relevant stakeholders. |
| --- | --- |

—

The provision by the EC of specialised web-based platforms (as the existing electronic notification interface) or an electronic database for concrete pieces of EU law to share best practices could be further developed. Multilevel governance should be fostered and include all relevant stakeholders.

| 4.6.3. | Terminology and delegated acts:






  — | Member States are encouraged to check precise and agreed language along the whole negotiation process in the Council; |
| --- | --- | --- |

4.6.3.

—

Member States are encouraged to check precise and agreed language along the whole negotiation process in the Council;

| — | Basic terms and definitions must be clearly defined as soon as possible in the early stage of negotiations; |
| --- | --- |

—

Basic terms and definitions must be clearly defined as soon as possible in the early stage of negotiations;

| — | Different meanings of terms and definitions in the Member States need to be taken into account by the EC; |
| --- | --- |

—

Different meanings of terms and definitions in the Member States need to be taken into account by the EC;

| — | Definitions in a specific piece of legislation should be consistent with those in other EU legislation; |
| --- | --- |

—

Definitions in a specific piece of legislation should be consistent with those in other EU legislation;

| — | Delegated acts should be subject to requirements as per Article 290 TFEU, providing clear and explicit definitions in the basic legislative text; |
| --- | --- |

—

Delegated acts should be subject to requirements as per Article 290 TFEU, providing clear and explicit definitions in the basic legislative text;

| — | Delegated acts should only be considered for non-essential elements of the legislative act and only these parts may be supplemented or amended (10). |
| --- | --- |

—

Delegated acts should only be considered for non-essential elements of the legislative act and only these parts may be supplemented or amended (10).

5.   Specific sensitive areas

5.1.   European Structural and Investment Funds (ESIF)

| 5.1.1. | The European cohesion policy, namely Structural Funds and the European Social Fund in particular, are implemented in a complex administrative, institutional and regulatory environment and are a specific field where unnecessary and burdensome transposition may have a negative effect on EU policies. In this context, national and/or regional rules often ‘add to’ rather than only ensure that minimum (European) requirements are addressed. Many of these rules lead to additional administrative burden. It should be noted that additional requirements often rest on the assumption that they are important, useful, necessary, and the result of a democratic process. |
| --- | --- |

5.1.1.

| 5.1.2. | In the framework of the preparation of the MFF for the period 2021-2027, the EESC urges the EC to take measures swiftly to tackle unnecessary administrative burden which heavily impedes ESIF investments — state aid, procurement compliance, audit practices and delayed or even retroactive adoption of universal detailed guidance. Reducing or avoiding unnecessary administrative burden is a joint responsibility of all players. |
| --- | --- |

5.1.2.

| 5.1.3. | Inappropriate practices could generate lack of trust across the overall ESIF implementation system. These include a risk-averse approach at all levels, lack of consistency in interpreting responses from different DGs of the EC, persisting gaps in the harmonisation of ESIF rules at national, local and regional level, fear of non-compliance with state aid rules, different public procurement policy approaches at EU (accent on transparency) and national (accent on value for money) level on and divergent national administrative cultures. |
| --- | --- |

5.1.3.

| 5.1.4. | Inappropriate practices could also adversely affect beneficiaries as well as programme bodies and increase administrative costs and burden of ESIF implementation, making it less attractive. Due to the lack of alternative dispute resolution systems, companies and particularly SMEs could be adversely affected by late payment, administrative overload, inappropriate control, refusal of projects, exclusion from collective actions, etc. For these reasons, the EESC calls for the creation of specialised dispute resolution systems. |
| --- | --- |

5.1.4.

| 5.1.5. | Recommendations for future action for the period 2021-2027: |
| --- | --- |

5.1.5.

| 5.1.5.1. | Reducing administrative burdens in the area of management and control:






  — | Swift action at EU and national level to identify and, if possible, eliminate redundant practices, processes and procedures and to suggest more effective solutions based on good practices; |
| --- | --- | --- |

5.1.5.1.

—

Swift action at EU and national level to identify and, if possible, eliminate redundant practices, processes and procedures and to suggest more effective solutions based on good practices;

| — | ‘Shared management’ is a substantial cause for the complexity of ESIF. The ‘integrated approach’ where the administration and control of ESIF is carried out on the basis of national standards (‘devolved management’), should be applied; |
| --- | --- |

—

‘Shared management’ is a substantial cause for the complexity of ESIF. The ‘integrated approach’ where the administration and control of ESIF is carried out on the basis of national standards (‘devolved management’), should be applied;

| — | Member States to carry out self-reviews of their audit, management and control systems with a view to detecting and eliminating excessive and overlapping rules, while at the same time safeguarding the correct use of EU funds; |
| --- | --- |

—

Member States to carry out self-reviews of their audit, management and control systems with a view to detecting and eliminating excessive and overlapping rules, while at the same time safeguarding the correct use of EU funds;

| — | The EC to take better account of the intensity of the aid and the specifics of the different implementation models and mechanisms (i.e. grants, financial instruments, simplified costs, etc.) when developing relevant rules and procedures. |
| --- | --- |

—

The EC to take better account of the intensity of the aid and the specifics of the different implementation models and mechanisms (i.e. grants, financial instruments, simplified costs, etc.) when developing relevant rules and procedures.

| 5.1.5.2. | The EESC calls for simplifying and streamlining state aid rules, including by removing all sources of uncertainty in their application. Possible amendments should be considered, including to the applicable rules where necessary, so that similar ESIF projects are treated in the same way as those funded from EFSI and programmes directly managed by the EC, such as Horizon 2020. At the same time, the EESC warns that interpretation and guidance notes and questions-and-answer-based documents must be limited, so that they do not become another layer of de facto legislation. It recommends replacing them with a wide dissemination of good practices, and avoiding retro-active application. It calls on the EC to refrain from preparing guidelines which are valid for all Member States on the basis of a request or problems in one or a few Member States. |
| --- | --- |

5.1.5.2.

| 5.1.5.3. | In order to address the different approaches when dealing with public procurement rules, the EESC suggests creating a joint group task force consisting of relevant DGs and Funds representatives consistently interpreting the rules when necessary and providing consistent advice and a uniform approach of financial corrections. |
| --- | --- |

5.1.5.3.

| 5.1.5.4. | The EESC is of the view that subsidiarity should be better applied in the implementation of ESIF, leaving it to national authorities to verify the respect of national rules. It invites the Member States to make full use of the simplification options provided in the new programming period and to refrain from gold-plating, which relates here to all norms, guidelines and implementing procedures which can be deemed unnecessary with respect to the policy objectives set by the Managing Authorities, and to eliminate unnecessary administrative burden. |
| --- | --- |

5.1.5.4.

5.2.   Towards Better Regulation

| 5.2.1. | The EESC underlines that unnecessary regulatory and administrative burden are obstacles to for businesses, citizens and public authorities. It reiterates the need for simplified, consistent and better-quality regulation that should be well understood and implemented in a transparent way, with the equally indispensable involvement of all four levels of governance — EU, national, local and regional. |
| --- | --- |

5.2.1.

| 5.2.2. | Some Member Stateshave National Committees to which governments have to justify more stringent regulation than minimum levels laid down in EU legislation (‘gold plating’). In Member States where such bodies do not exist it is not necessary to create new administrative bodies, but nevertheless the process of adopting any requirements above EU standards in these countries should be transparent. |
| --- | --- |

5.2.2.

| 5.2.3. | As in previous opinions (11), the EESC recommends carrying out SME tests in the impact assessments on proposals for new European legislative acts more efficiently. It calls on the Member States to take advantage of options to grant exemptions to micro companies on certain rules in line with EU law. The EESC reiterates its view that regulatory burden reduction targets should be based on a comprehensive evaluation including civil society and stakeholder dialogue. The existing level of protection of citizens, consumers, workers, investors and the environment in Member State must not be questioned when implementing the EU legislation (12). |
| --- | --- |

5.2.3.

| 5.2.4. | The EESC reiterates the parity and homogeneity of the different goals of EU-policies according to the Treaty, underlining in particular a highly competitive socially responsible market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. |
| --- | --- |

5.2.4.

| 5.2.5. | The EESC invites the EC, whenever reasonable and justified to take into consideration the use of incentive-based models and international standards and guidelines. |
| --- | --- |

5.2.5.

6.   Impact on employment, consumer and environmental standards

| 6.1. | In recent decades, a number of EU-wide minimum standards have been established in consumer, environmental and worker protection which aim to bring about upward convergence of living and working conditions in the Union, i.e. more social convergence as per Article 151 TFEU. |
| --- | --- |

6.1.

| 6.2. | The EU legislator has deliberately left room for minimum standards to be implemented by Member States in line with EU treaty principles, especially while respecting proportionality. As a result, directives provide that Member States can take their higher standards into account in their implementation process. The EESC underlines that, whenever Member States decide to go for more ambitious protection standards, Better Regulation principles could, among other considerations, be taken into account. |
| --- | --- |

6.2.

| 6.3. | These national standards are the result of democratic negotiation processes involving to a considerable extent European and national social partners and are of benefit to employees, consumers and companies. In line with the objectives of the EU Treaty, setting such minimum standards should aim to ensure the better functioning of the single market and while at the same time not adversely affect higher levels of protection at national level. Minimum standards in EU law often even explicitly include ‘non-regression clauses’ stating that the implementation of the directive may not be used as justification for lowering eventual higher national standards to the European standard. This does not mean, however, that national standards are set in stone and can never be changed. |
| --- | --- |

6.3.

| 6.4. | In the course of national transposition of EU law, impact assessments could be used by Member States to check social, economic and other effects. |
| --- | --- |

6.4.

| 6.5. | In social policy as in consumer and environmental protection, EU legislation made sure that higher standards in Member States are not be undermined and should be safeguarded, while including all stakeholders in IAs. In this respect, the EESC has repeatedly expressed the view that the Better Regulation Agenda should deliver high-quality EU laws without undermining key policy objectives or creating deregulation pressure on social and environmental protection standards as well as on fundamental rights (13). |
| --- | --- |

6.5.

| 6.6. | The EESC reiterates that European minimum standards, especially in the context of EU social policy, aim at an approximation of living and working conditions across the EU towards upward social convergence. Minimum standards in EU directives should not be understood as a ‘maximum level’ not to be exceeded in the course of their transposition into national legal systems. |
| --- | --- |

6.6.

| 6.7. | The EESC supports the Better Regulation process and recognises its value added. At the same time, it warns that it by no means should be used as an excuse for downgrading requirements, especially in such areas as consumer, environmental and labour law, promoting prosperity growth and sustainable job creation. The EESC warns that this would fuel growing EU scepticism among broad sections of the population. In the EESC’s view, popular acceptance of the European unification process should not be jeopardised by regulatory competition through levelling down standards. |
| --- | --- |

6.7.

Brussels, 19 September 2018.

The President of the European Economic and Social Committee

Luca JAHIER

---

(1)  https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how_en#need.

1

(2)  OJ C 197, 8.6.2018, p. 1.

2

(3)  OJ C 434, 15.12.2017, p.11; OJ C 13, 15.1.2016, p. 192; OJ C 303, 19.8.2016, p. 45; OJ C 487, 28.12.2016, p. 51; OJ C 262, 25.7.2018, p. 22.

3

(4)  https://ec.europa.eu/commission/sites/beta-political/files/report-task-force-subsidiarity-proportionality-doing-less-more-efficiently_1.pdf

4

(5)  OJ C 262, 25.7.2018, p. 22; OJ C 18, 19.1.2017, p. 10.

5

(6)  See, inter alia, point 1.2. of the EESC opinion on REFIT (OJ C 303, 19.8.2016, p. 45).

6

(7)  COM(2012) 746 final, p. 2.

7

(8)  OJ C 303, 19.8.2016, p. 45, pt 2.1.

8

(9)  OJ C 262, 25.7.2018, p. 22, pt. 1.2.

9

(10)  CES248-2013 (Information Report) (OJ C 13, 15.1.2016, p. 145).

10

(11)  OJ C 197, 8.6.2018, p.1.

11

(12)  OJ C 262, 25.7.2018, p. 22, pt. 4.7.1 and 4.8.3.

12

(13)  OJ C 262, 25.7.2018, p. 22 (pt. 1.1 and 3.4.); OJ C 303, 19.8.2016, p. 45 (pt. 2.1-2.2, 2.5); OJ C 13, 15.1.2016, p. 192 (pt. 2.4).

13

---