# EUR-Lex - 52012DC0746 - EN

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# 52012DC0746

**COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS EU Regulatory Fitness /* COM/2012/0746 final */**

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COMMUNICATION FROM THE COMMISSION TO
THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS

EU Regulatory Fitness

1.           Smart Regulation: Responding
to the Economic Imperative

EU legislation is essential to achieve the
objectives of the EU Treaty and to set the conditions for smart, sustainable
and inclusive growth, benefitting citizens, businesses and workers. Achieving these goals is a shared
responsibility between the Commission, the other European Institutions and the
Member States. The economic and financial crisis has revealed costs of
non-action, weak legislation and enforcement in some areas. It has prompted a call
for strengthened economic governance and financial regulation at EU level. At the
same time, the crisis has focused attention on the costs of EU legislation and the
challenges of implementing and enforcing the laws already on the statute books.
National administrations, already under strain, find it difficult to keep up
with the transposition and application of EU legislation. Businesses and
citizens raise concerns about the complexity and administrative load of laws.
The European Council has called for further efforts to reduce the overall
regulatory burden at EU and national level.

The Commission is responding to these concerns.
Since outlining new initiatives two years ago[1],
it has consolidated its impact assessment system. The 25% target set under the
Action Programme for Reducing Administrative Burdens has been met and exceeded.
Legislation has been simplified and codified. Significant simplification
proposals in several policy areas are being examined by the European Parliament
and Council.  For example, the Commission proposed an ambitious simplification
agenda covering  the next Multi-annual Financial Framework[2]. The Commission has been
applying a ‘Think Small First’ principle and is using the full set of
regulatory instruments (from enhanced consultations and impact assessment to
specific implementation monitoring) to adapt EU regulation to the needs of
micro-enterprises[3].
Pilot policy evaluations (‘fitness checks’) have been launched[4]. Many problems on the correct
application of EU legislation are being solved without having to resort to formal
infringement procedures. The public is being systematically consulted on policy
initiatives.

The Commission will continue these activities
and is determined to meet policy goals at minimum cost, achieving the benefits
that only EU legislation can bring and eliminating all unnecessary regulatory
burden. It will continue to strengthen its regulatory tools and to apply them systematically
across its regulatory activities. The Commission will also step up its
implementation and enforcement in close cooperation with the other European
institutions and the Member States. It will combine various initiatives now underway
into a Regulatory Fitness and Performance Programme (REFIT) aimed at eliminating
unnecessary regulatory costs (i.e. burden) and ensuring that the body of EU
legislation remains fit for purpose.

The Commission does not believe that setting
global targets and/or quantitative formulae for managing the stock of legislation
will produce the desired results. This requires a more tailored approach with an
assessment of actual benefits and costs — identifying whether they are directly
related to EU legislation or to the implementation choices made by the Member States.
Such an approach would make it possible to more accurately target cost
reduction and regulatory improvements and would be better suited to the
specificities of EU policy making.

In strengthening its approach to Smart
Regulation, the Commission has drawn upon inputs from the European Parliament[5], the Committee of the Regions[6], a public consultation[7], the Impact Assessment Board[8], the work of the High-Level
Groups of National Regulatory Experts and on Administrative Burdens, and the
2012 OECD ‘Recommendation on Regulatory Policy and Governance’[9].

2.           A Regulatory Fitness and Performance
Programme

The current economic situation demands that EU legislation
be even more effective and efficient in achieving its public policy objectives:
demonstrating clear added value, delivering full benefits at minimum cost and
respecting the principles of subsidiarity and proportionality. The final result
must be a simple, clear, stable and predictable regulatory framework for businesses,
workers and citizens.

To move further towards this goal, the
Commission will launch a Regulatory Fitness and Performance Programme (REFIT)
building on its experience in evaluating and reducing administrative burden. REFIT
will identify burdens, inconsistencies, gaps and ineffective measures.
Attention will be paid to possible regulatory burden related to how EU
legislation is implemented at the national and sub-national level[10]. Through REFIT, the Commission
will identify, assess, adopt, and monitor implementation of, initiatives which
will result in significant regulatory cost reduction or simplification.

The REFIT Programme builds upon a broader approach
to policy evaluation piloted through the ‘fitness checks’ launched since 2010[11]. Experience thus far demonstrates
the need for a common framework for conducting these assessments — to show how
they fit into the overall objective of ensuring smart regulation and eliminating
burdens, to involve all relevant levels of government and to facilitate wide
stakeholder participation.

The REFIT process will start with a mapping
exercise to identify the regulatory areas and pieces of legislation with the greatest
potential for simplifying rules and reducing regulatory cost for businesses and
citizens without compromising public policy objectives. Normally, the mapping
will point to areas where further evaluation, including of costs and benefits,
is needed. These evaluations will also assess whether quantitative targets for
burden reduction should be examined in the concerned field and in relation to
EU and Member States responsibilities respectively. Where the mapping provides sufficient
evidence that more immediate action is needed, an impact assessment process for
the proposals will be launched. Stakeholders will be informed throughout the
process and their views will be essential for the prioritisation of activities.

The REFIT programme will be implemented in a
transparent manner. In line with its "evaluate first" policy, in principle,
the Commission will not examine proposals in areas of existing legislation until
the regulatory mapping and appropriate subsequent evaluation work has been
conducted. Planning will be public. REFIT evaluations will be publicly flagged
in strengthened multiannual evaluation plans starting from 2014. A dedicated
annex in the Commission work programme will list all planned REFIT initiatives
starting from the 2014 work programme. A tracking system (scoreboard) will be
set up to assess the progress of proposals through the EU institutions and at
the implementation stage.

Possible areas for REFIT evaluation planning
will also come from activities which are already on-going or in the pipeline.
These include the results of the current EU-wide consultation of SMEs on what
they consider to be the Top Ten most burdensome EU regulations and the outcomes
of ongoing ‘fitness checks’ and other regulatory evaluation work[12]. The ongoing rolling
simplification programme and work on reducing regulatory burdens for smaller
businesses will also be immediately merged into the new programme. Further indications will be provided by the finalisation of assessments
of the information and consultation of workers in the social field,
type-approval of motor vehicles, internal aviation-market policy and food chain
legislation. Reviews of waste legislation, the retail sector, occupational
health and safety, petroleum refining, aluminium and other industrial products
are also already planned.

Finally, REFIT will include a follow-on to the Administrative
Burden Reduction Programme (ABR) — ABR Plus. The 2007 Programme aimed to reduce
burdens on business stemming from EU legislation by 25 % by 2012. It
covered around 80 % of the main sources of administrative burden. The
Commission has gone beyond the target by presenting proposals to cut the
administrative burden by over 30 %, while measures equalling 25 %
have been adopted by the co-legislators. The detailed results of the Action
Programme are presented in an accompanying Staff Working Document[13].

Benefits will not materialize until the ABR is
successfully implemented. ABR Plus will therefore focus on follow-up in the
Member States. Member States will be asked to report by 31 December 2013 on how
they implemented ABR measures. The High Level Group on Administrative Burden
will be tasked with assisting and advising on this follow-up, comparing estimated
results with the initial estimates and facilitating best practice exchange
between Member States. It will also follow up with business and Member States
on Member State implementation of EU measures reducing unnecessary administrative
burden particularly for smaller businesses. The High Level Group mandate is
therefore being extended till the end of the current Commission’s term of
office.

3.           Smart Regulation Tools: Sharpening
Performance

The Commission deploys a number of different
tools in its Smart Regulation policy. These are continually being improved.

3.1.        Impact assessment

The Commission’s impact assessment (IA) system
has been judged first class[14]
— transparently assessing legislative and non-legislative policy options by
comparing both potential benefits and costs in economic, social and
environmental terms. The system is comprehensive, transparent and subject to
independent scrutiny.[15]
IAs are performed for all proposals with significant direct impacts. Within the
past two years, operational guidance has been issued for analysing impacts on
fundamental rights[16],
competitiveness[17]
and micro-enterprises[18].
The independent scrutiny by the Impact Assessment Board (IAB)[19] enhances the reports’ quality
and a positive IAB opinion is needed in principle before a proposal can be
submitted to the Commission for a decision. The IAB’s scrutiny has been
strengthened through targeted changes in its mandate and rules of procedure[20]. Whether or not an IA will
be conducted is stated in roadmaps which are publicly available.[21] IAs as well as IAB opinions
are publicly available. Since the IAB’s establishment in 2006, more than 700
opinions have been issued. The creation of a new Directorate for Impact
Assessment in the European Parliament is adding a further external level of
scrutiny and quality control.

Most respondents to the stakeholder
consultation support the Commission’s integrated approach. The most frequent
suggestions for achieving even higher quality more consistently include: a
greater effort to quantify impacts, a clearer presentation of headline results,
consultation on draft impact assessments, external IAB members and a binding
requirement for positive IAB opinions.

The evidence and existing studies show that the
current set up is delivering results efficiently. According to a study by the
European Parliament[22],
‘the EU system is comparatively well-developed with both internal and external
checks and balances’ and ‘there is general consensus that the IAB contributes
to improved quality of IAs. According to a CEPS/University of Exeter analysis[23], quantification of costs and
benefits is as frequent, or more frequent, than in other systems. In no system
is the opinion of independent scrutiny bodies binding on political decision-makers.
The Commission therefore considers that neither external IAB members nor
binding IAB opinions are necessary and that they would not be compatible with its
own right of initiative, the institutional roles of the European Parliament and
Council and accountability to the public at large.

Regarding the calls for consultation on draft
IA reports, it should be noted that the Commission already requires
stakeholders to be consulted on all key aspects of an impact assessment and
further improvements to consultation are planned. Consultation normally takes
place early in the impact assessment process to allow stakeholders to influence
the framing of the problems and the choice of options early in the process. If
consultation were to take place only once on draft IAs, the options would
already have been identified, reducing the scope for meaningful stakeholder
inputs. If two consultations were to be held, the policy cycle would be even
lengthier. Furthermore, IA reports accompanying Commission proposals are public.
This means that stakeholders can also provide their views in the course of the
legislative process.

There remains, nevertheless, scope to further
improve the quality and clarity of IA reports and better exploit IA processes for
REFIT. The Commission will further improve the ex ante assessment of costs and
benefits. It will also include a standardised two-page summary sheet in its IA reports
to facilitate quick identification of key results of the impact assessment,
including estimated benefits and costs. It will review and update its IA guidelines
in 2014, following a public consultation.

3.2.        Evaluation

Evaluation is an integral part of the Commission’s
effort to maximise the benefits and minimise the costs of EU policies, as
already highlighted in the 2010 Smart Regulation communication. The
strengthening of the evaluation of EU regulatory measures goes hand-in-hand
with increased attention to the evaluation of financial programmes. Article 318 of the Treaty on the functioning of the EU (TFEU) introduced
a new requirement for the Commission to submit to the European Parliament and
the Council an evaluation report on the Union’s finances based on the results
achieved.

The Commission is strengthening its evaluation
system and applying its ‘evaluate first’ principle. The share of significant
proposals in the Commission Work Programme supported by available or ongoing
evaluations rose from 32 % to 44 % between 2011 and 2012.

Various issues have come to the fore in the
effort to strengthen evaluation and in the public consultation responses.
Evaluations have traditionally examined individual funding programmes or pieces
of legislation, with less attention being paid to evaluation of broad areas of legislation
and cross-cutting issues. There is also a timing issue with impacts of both
programmes and policies being measurable only many years after their inception.

With a view to improving the political
relevance and ownership of evaluation results, the Commission is reviewing its
evaluation system and will set out a revised framework for policy and programme
evaluation in 2013. The new approach will examine how evaluation results could
be better anchored in the policy development cycle. The evaluation process could be designed alongside the policy itself
with better monitoring and reporting. There is room for increased transparency
in planning and greater stakeholder involvement. An end-of-Commission review
based on evaluation results could be considered.

The evaluation guidelines, including guidance
on the evaluations under REFIT, will be revised following a public
consultation. Finally, given the importance of implementation for regulatory
effectiveness and efficiency, the new approach will also launch on a pilot
basis joint evaluations with interested Member States. The High Level Group of
National Regulatory Experts will be encouraged to advise on these pilots and on
the means of Member State involvement. The Group's mandate
is being extended till the end of the current Commission’s term of office in
order to provide advice and exchange of best practice on Smart Regulation
activities.

The Commission is furthermore examining how to
redesign and improve the Article 318 TFEU report. A reliable method of annual
reporting on results achieved is needed drawing from the assessment frameworks
under the current and future Multi-annual Financial Frameworks and from the monitoring
data from the Commission’s annual reporting instruments[24].

3.3.        Consulting citizens and
stakeholders

Listening to citizens and stakeholders is
fundamental for smart regulation at all stages of the policy cycle. The
Commission has a variety of means set out in the Treaties and policy documents
to interact with stakeholders[25].
A wide set of tools — from roadmaps to open and targeted public consultations —
are available for the Commission to dialogue with interested parties at various
stages.

Since the beginning of 2012, the Commission has
strengthened the voice of stakeholders by extending the minimum period for
public consultation from eight to twelve weeks[26].
Also, SMEs and micro companies have directly voiced their problems and concerns
in dedicated conferences organised in Member States. A review of consultation
policy has been finalised and its results are detailed in an accompanying Staff
Working Document[27].

The Commission consults widely, respecting
principles of openness and transparency and following minimum standards which
are generally acknowledged as appropriate, respond to international best
practice and are usually respected. Over the last three years, stakeholders
views were sought through more than 300 open consultations published on the ‘Your
Voice in Europe’ website. All impact assessment reports completed over the same
period relied on extensive open or targeted consultations. In nine open
consultations out of ten, the minimum period was respected.

The review confirmed the validity of the
Commission’s consultation policy and tools, as well as the progress in
implementation achieved over the years. Nevertheless, the review and
stakeholders’ views pointed to areas where further improvements in
implementation could be made. Consultations do not always ask the right questions
at the right time and sometimes fail to reach those directly affected who cannot
always be addressed in their native languages. The accompanying Staff Working
Document details the measures planned to address these issues.

The Commission will extend the reach of
consultations by publishing a rolling calendar of planned consultations on the ‘Your
Voice in Europe’ website, by better mobilising Member States’ communication
channels, by exploring the use of innovative consultation tools, by improving
the quality of feedback and by examining if consultation documents and
summaries could be more widely translated within existing budgetary limits. It
will also update and clarify the minimum standards by including clearer
operational criteria. Finally, to foster improved quality, internal control and
support mechanisms (such as guidelines and best-practice libraries) will be
strengthened. Together, these measures will allow public consultations to
better support all phases of the evaluation, impact assessment and decision-making
processes.

4.           Smart Regulation Governance:
Improving Implementation

EU legislation cannot serve its purpose if it
is not effectively implemented and enforced. An implementation perspective is
essential at all points in the policy cycle. Moreover progress in
implementation will be a key factor in the assessment of regulatory fitness.

4.1.        Supporting the
implementation of EU legislation

Member States bear the primary responsibility
for the implementation of EU legislation. The Commission supports them through
a variety of measures: implementation plans that identify the main implementation
challenges and suggest support measures, problem-solving mechanisms such as EU
Pilot[28]
and best-practice exchanges (e.g. the Best Practice Report of the High Level
Group on Administrative Burden[29]).
Inter-institutional dialogue and transparency have also been enhanced[30].

The Commission will continue to monitor
progress in the implementation of key areas of EU legislation, focussing on identified
single-market priority areas[31].
It will take a more systematic and risk-based approach to conformity assessment
which will strengthen compliance verification and provide valuable input for ex
post evaluation. The Commission will also prepare implementation plans for Directives
on a more systematic basis and apply the use of common commencement dates for EU
regulations and decisions affecting business more widely. Finally, the
Commission will do its utmost to ensure that appropriate time is provided
between adoption and transposition date.

4.2.        Making legislation clearer
and more accessible

Managing the quality of the legislation also
means making sure it is as clear, accessible and easy to comply with as
possible. Ongoing efforts to this
end will continue. These include the simplification, codification, recast and
consolidation of legal texts as well as reducing the volume of legislation by
repealing obsolete provisions. Since 2005, the Commission approved 640
initiatives aimed at simplification, codification or recasting. More than 4 450
legal acts have been repealed, of which 1750 as a result of codification and
recasting. All amended regulations and directives as well as a selection of
decisions have been consolidated in all languages originally translated and are
available via the EUR-Lex website.  Electronic access to the full body of EU
legislation is also being improved: the new e-Justice Portal was launched in
2011 and the new EUR-Lex Common Portal will become operational on-line in 2013.
In 2011, the Commission proposed to give legal effect to the electronic
publication of the Official Journal[32].
Finally, the Commission will continue its efforts to improve the quality of
drafting to ensure more concise and readable texts. These measures will support
the integrated evaluation of policy areas, facilitate public consultation and help
national administrations in transposition and implementation.

5.           Smart regulation: a
shared mission

5.1.        The European Parliament,
Council and advisory bodies

In its 2010 Communication, the Commission
called on the European Parliament and Council to make better use of impact
assessments in their decision-making processes and to analyse impacts when
discussing any substantive amendments in line with their commitments under the
inter-institutional agreement on better lawmaking.

The Commission notes that only limited progress
has so far has been achieved with regard to the analysis of impacts of
substantive amendments.

However, the Commission welcomes the
establishment of a new directorate for Impact Assessment in the European
Parliament. The Commission supports the good practice of some Committees which
make the Commission's  impact assessment  the starting point for further
analytical work by the European Parliament. This should ensure comparability
with the Commission’s own impact assessment approach and avoid any duplication
of effort.

The Council has not established an impact
assessment capability. The Commission considers that it could make greater use
of impact assessments in its decision-making processes, for example by taking
into full account the Commission’s impact assessments when starting work on the
accompanying proposals.

The Commission will continue to respond
constructively to requests to expand on aspects of its impact assessments
and/or to share its data and methodology on a case by case basis. It invites
both Institutions to focus on delivery, so that a more significant proportion
of the amendments they make have directly benefited from evidence-based impact
analysis.

The Commission also welcomes the support and
endorsement of the Institutions for its work to reduce and minimise
administrative and regulatory burden and invites them to support the
simplification proposals under discussion and to endorse and support the REFIT programme.

Finally, the Commission welcomes the support of
the Economic and Social Committee and of the Committee of the Regions. Their platforms
and networks can be an important source of information for preparing evaluations
and impact assessments.

5.2.        Member States

Cooperation between the Commission and Member
States is crucial if EU legislation is to deliver its full benefits at minimum
cost to citizens, workers and enterprises. The strength of national administrative
capacity and national regulatory quality have a direct impact on whether EU public
policy aims can be achieved on the ground. Inputs from Member States’
administrations and institutions are of critical importance for the design and
evaluation of EU legislation. In transposing and implementing EU legislation, including
the rules governing activities funded by the EU budget, Member States are
responsible for ensuring that their regulatory framework is clear and
accessible. National Parliaments play a key role in checking that the
subsidiarity principle is correctly applied.

The Commission encourages Member State
authorities to participate more actively in its public consultations and
evaluations, including by mobilising their national dedicated networks, so as
to improve the evidence basis for policy-making. It stresses that, in this
context, early feedback from Member States is fundamental for robust
subsidiarity analysis.

The Commission also underlines that national
impact assessment can be of use to help discussions in Council on changes to its
proposal and to help Member States with transposition and enforcement issues.

The Commission invites Member States to ensure
effective delivery at national level of the ongoing initiatives to reduce the
administrative burden, and to take due account of the recommendations of the February
2012 report on best practices, to implement EU legislation in the least
burdensome way and to participate actively in the exchange of information on
efficient methods of implementing EU regulation[33]. It also invites them to take
full advantage of the simplification possibilities offered by EU legislation and
to ensure the clarity and accessibility of national rules transposing EU
legislation.

Finally, the Commission emphasises the
importance of efficient public administration for the timely transposition,
implementation and enforcement of EU legislation.

6.           Conclusions

To guarantee EU regulatory quality, EU
legislation and the national rules that implement it, must be managed in a
manner that ensures it continues to efficiently achieve its public policy
objectives. Regulatory frameworks must be fit for purpose and remain so as
problems evolve, new solutions emerge and political priorities change. To this
end, the Commission will make the identification of unnecessary costs and areas
for performance improvement an integral and permanent part of its policy-making
and programming across all EU legislation.

[1]               COM(2010)
543 ‘Smart Regulation in the EU’.

[2]               See COM(2011)500 ‘A budget for Europe 2020’,
Regulation (EU, Euratom) No 966/2012 and  COM(2012) 42 ‘Simplification Agenda
for the MFF 2014-2020’.

[3]               COM(2011)
803 ‘ Minimising regulatory burden for SMEs’ - In early 2013, the Commission
will present a first progress report and scoreboard focusing in particular on
the priorities identified by small businesses in the conferences held in Member
States and in the EU-wide consultations running up to late 2012.

[4]               http://ec.europa.eu/dgs/secretariat_general/evaluation/docs/fitness_check_en.pdf.

[5]               Report
on the 18th report on better legislation and report on the 28th
annual report on monitoring the implementation of EU legislation.

[6]               Opinion
of the Committee of the Regions on ‘Smart Regulation’ 2012/C 9/04.

[7]               http://ec.europa.eu/governance/better_regulation/smart_regulation/consultation_2012/docs/consultation_en.pdf.

[8]               SEC(2012)
101 ‘Impact Assessment Board Report for 2011’.

[9]               http://www.oecd.org/gov/regulatorypolicy/49990817.pdf.

[10]             The
administrative burden added during implementation of EU legislation at the
national level is estimated to be roughly a third of the total.

[11]             On
EU freshwater policy in the environment area, on information and consultation
of workers in the social field, on type-approval of motor vehicles, on food
chain legislation  and on internal aviation-market policy.

[12]             Notably
the already available results for construction, business and tourist services.

[13]             SWD(2012)
422 ‘Review of the Commission Consultation Policy’.

[14]             OECD
2011 ‘Sustainability in Impact Assessments — A review of Impact Assessment
Systems in selected OECD Countries and the European Commission’, European
Parliament 2011, ‘Comparative study on the purpose, scope and procedures of
impact assessments carried out in the Member States of the EU’, CEPS/University
of Exeter 2012, ‘Regulatory Quality in the European Commission and the UK: Old
questions and new findings’.

[15]             European Court of Auditors Special report N° 3/2010
‘Impact Assessments in the EU institutions: do they support decision making?’.

[16]             http://ec.europa.eu/governance/impact/key_docs/docs/sec_2011_0567_en.pdf.

[17]             http://ec.europa.eu/governance/impact/key_docs/docs/sec_2012_0091_en.pdf.

[18]             http://ec.europa.eu/governance/impact/key_docs/docs/meg_guidelines.pdf.

[19]             http://ec.europa.eu/governance/impact/iab/iab_en.htm.

[20]             http://ec.europa.eu/governance/impact/iab/members_en.htm.

[21]             http://ec.europa.eu/governance/impact/planned_ia/planned_ia_en.htm.

[22]             See
footnote 14.

[23]             See
CEPS/University of Exeter 2012 in footnote 14.

[24]             That
is: the Commission’s Strategic Planning and Programming Cycle — the Annual
Activity Reports, Annual Budget Statements, etc.

[25]             See
SWD(2012) 422..

[26]             http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/1&format=HTML&aged=0&language=EN&guiLanguage=en
.

[27]             SWD(2012)
423 ‘Action Programme for Reducing Administrative Burdens in the EU – Final
Report’.

[28]             http://ec.europa.eu/eu_law/infringements/application_monitoring_en.htm.

[29]             http://ec.europa.eu/dgs/secretariat_general/admin_burden/best_practice_report/docs/bp_report_signature_en.pdf.

[30]             See
OJ L304/47 and OJ C369/14.

[31]             See
COM(2012) 259 ‘Better governance for the single market’.

[32]             COM(2011) 162 ‘Proposal for a Council Regulation on
electronic publication of the Official Journal of the European Union’.

[33]             http://ec.europa.eu/dgs/secretariat_general/admin_burden/best_practice_report/best_practice_report_en.htm