EN Official Journal of the European Union C 230/66

Opinion of the European Economic and Social Committee on the communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — Regulatory Fitness and Performance Programme (REFIT): State of Play and Outlook

(COM(2014) 368 final)

(2015/C 230/10)

Rapporteur: Denis MEYNENT

On 1 October 2014 the Commission decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the

‘Communication from the Commission to the European Parliament, the Council, the European Social and Economic Committee and the Committee of the Regions — Regulatory Fitness and Performance Programme (REFIT): State of Play and Outlook’

COM(2014) 368 final.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 19 November 2014.

At its 503rd plenary session, held on 10 and 11 December 2014 (meeting of 10 December 2014), the European Economic and Social Committee adopted the following opinion by 136 votes to 2, with 4 abstentions.

1. Conclusions and recommendations

1.1. The EESC takes note of the state of play in implementing the REFIT programme established by the Commission. It is pleased that the Commission is seeking to improve the process and the instruments. With respect to the principle, it draws attention to its previous opinions (1).

1.2. The EESC is in favour of reducing the constraints on small, medium and micro-enterprises (the SME test) and the public when the objective and purpose for which regulations were put in place can be achieved more simply. However, it draws attention to the fact that, to ensure sound public governance, relevant and essential data and information for establishing, monitoring and assessing the policies must also be available.

1.3. The EESC notes that the Think Small First principle is not intended to exempt micro-enterprises and SMEs from the application of the legislation and cannot be used for this purpose. On the contrary, its aim is to ensure that when legislation is drawn up, the fact that it will also apply to small enterprises is taken into account, without affecting its intended objective.

1.3.1. The EESC emphasises that the application of this principle must not conflict with the general interest, which means in particular that the public, workers and consumers must be protected against any risks they might incur.

1.4. The Committee is extremely concerned by the findings on the shortcomings of social and environmental impact assessments and the follow-up to consultations. It calls on the Commission to be more transparent and to give fully documented reasons why a particular measure or proposal is or is not to be submitted for impact assessment and/or an ex post analysis.

1.5. The EESC calls on the Commission to provide integrated, balanced analysis of the economic, social and environmental dimensions. Indeed, it believes that the Commission’s intended goals will only be reached if all of these aspects, and the concerns of all stakeholders, are taken into consideration.

1.6. In the EESC’s view, smart regulation gives no dispensation from the obligation to comply with the regulations on protecting the public, consumers and workers, or with gender equality and environmental standards and must not prevent improvements from being made to them.

1.7. The EESC considers that smart regulation must comply with the social dimension of the internal market as provided for by the Treaty, in particular as regards the transposition of the agreements negotiated within the European social dialogue.

1.8. The Committee urges the Commission to take better account of the points of view expressed during consultations and to justify the way in which it has, or has not, taken them into consideration. More generally, it proposes that the Commission put these consultations on a more structured institutional and representative foundation by taking advantage of the resources of the representative consultative bodies that already exist at the European, national and regional levels.

1.9. The EESC intends to respond positively to the general call for cooperation with the social partners and civil society launched by the Commission. The Committee is ready to play a more active role in the programme, without prejudicing the other forms of European social dialogue.

1.10. The EESC is willing to endorse the ex post analyses the Commission is proposing, if they are conducted after a certain time period has elapsed. Otherwise, REFIT would become a source of permanent legal uncertainty for the public and businesses.

1.11. In the Committee’s view, the Commission has acquired the necessary internal expertise to improve the process. It will only endorse the Commission’s proposal to create a new High Level Group for work to be done in future if this represents real added value.

2. Gist of the Commission document — Regulatory Fitness and Performance Programme (REFIT): Results and Next Steps

2.1. In line with its previous REFIT communications (2) and in connection with its communications on Better Regulation and Smart Regulation, (3) the European Commission notes that EU regulation plays a key role in underpinning growth and jobs.

2.2. The Commission emphasises that this has raised considerable expectations both from companies (which need the EU to ensure a level playing field and facilitate competitiveness) and the public (which looks to the European level to protect their interests, particularly in regard to health and safety, the quality of the environment and the right to privacy).

2.3. The challenge is to keep this legislation simple — not to go beyond what is strictly necessary to achieve policy goals and to avoid overlapping layers of regulation.

3. General comments

3.1. The EESC supports the general objectives of the Commission’s REFIT programme and draws attention to its opinions (4) which cover the Better Regulation programme and Smart Regulation, including the responses to the needs of small and medium-sized enterprises.

3.2. The EESC supports cutting the red tape and constraints on small, medium-sized and micro-enterprises and the public. The Commission should focus on quality rather than quantity and prioritise reductions in red tape, which has been seen to translate into a cost on businesses, a brake on their competitiveness and an obstacle to innovation and job creation. It goes without saying that when such steps are taken, consideration must be given to the aim and purpose for which obligations were put in place.

3.3. Whilst it is important to avoid any duplication of requests for information, to ensure sound public governance relevant and essential data and information for establishing, monitoring and assessing the policies must also be available.

3.4. The EESC shares the Commission’s view that the need for legal certainty and predictability argue against quick fixes. It considers that any changes to the legislation must be carefully thought through and situated in a long-term perspective in order to ensure predictability, legal certainty and transparency.

3.5. The EESC notes that smart regulation gives no dispensation from the obligation to comply with the regulations on protecting the public, consumers and workers (‘[It] should neither undermine workers’ rights nor reduce their basic level of protection, especially in terms of occupational health and safety’ (5)) and with gender equality and environmental standards. Smart regulation must allow for change and improvements.

3.6. In this respect, the EESC is pleased that the Commission has reconfirmed that the REFIT programme does not question established policy objectives or come at the expense of the health and safety of citizens, consumers, workers or of the environment. However, the EESC emphasises that it is not solely a question of not damaging citizens’ health. It also entails ensuring that action is in the general interest and provides appropriate protection to the public against the risks they incur, whether or not these are connected with their health. Similar concerns were expressed by the European Council of 26/27 June 2014 and by the European Parliament at its session on 4 February 2014 (6).

3.7. The EESC considers that smart regulation must comply with the social dimension of the internal market as provided for by the Treaty, in particular as regards the transposition of the agreements negotiated in the framework of the European social dialogue.

3.8. In the Committee’s view, REFIT must, as the Commission wishes, be an objective that is shared at EU and national level and with the social partners and other stakeholders. Accordingly, it is essential to build trust and ensure that no misunderstandings persist over the programme’s goals, particularly since some of the measures that have already been announced or implemented (7) have aroused the mistrust of some stakeholders and citizens.

3.9. Indeed, the EESC believes that the Commission’s intended goals will only be reached if the concerns of all stakeholders are taken into consideration.

4. Implementation of the programme

4.1. The EESC takes note of the state of play in implementing the REFIT programme. The Committee is particularly pleased that the Commission is seeking to improve the programme’s instruments by holding a consultation on impact assessments and on the consultation process itself. Indeed, it is crucial that the methodology behind these horizontal elements of the programme should not be open to criticism.

4.2. Ex post analyses and impact assessments must not be placed so closely together that democratically adopted rules cannot be properly applied. The EESC is willing to endorse the ex post analyses the Commission is proposing, if they are conducted after a certain time period has elapsed. In effect, ex post analysis is only meaningful if a certain number of years have elapsed between the deadline for the transposition of a regulation into national law and the ex post analysis in question. Otherwise, REFIT would become a source of permanent legal uncertainty for the public and businesses.

4.3. The EESC welcomes the fact that the Commission has drawn attention more than once to the need to involve the social partners, civil society and SMEs. The Committee notes that, hitherto, this has been a statement of principle rather than a systematic practice aimed at taking account of the proposals put forward.

4.3.1. Similarly, the EESC considers that is vital to involve and consult the bodies that represent civil society, the trade unions and SMEs, using the most appropriate channels.

4.4. With regard to impact assessments

4.4.1. The Impact Assessment Board reports for 2012 and 2013 (8) identify the shortcomings of the process and the steps that have been taken to improve it. The key points include: — many impact assessments fail to properly integrate views and report them in an unbiased way, — further efforts are still needed, particularly with respect to consideration of genuinely alternative options (clearer description of the options, the justification and proportionality of alternatives) and the provision of sufficiently detailed information on the likely impact of all approaches (and not only the preferred one), — the fact that the quality of the analysis for (positive or negative) social impacts remains a concern, as do the scope and depth of analysis of environmental impacts, — the need for ex post evaluations of existing EU legislation and programmes, — commitment to an integrated assessment of economic, social and environmental impacts.

4.4.2. In its 2013 report, the Impact Assessment Board draws attention to the significant reduction in the number of Board opinions regarding the analysis of impacts on SMEs and micro-enterprises. Its explanation is that this reflects the Commission’s commitment to take these effects into account, including by applying the so-called reverse burden of proof for micro-enterprises. The Impact Assessment Board stresses that the number of analyses of competitiveness impacts increased considerably in 2013 (by 30 %) compared with 2012. However, once again, concerns were raised about the lack of transparency surrounding the opinions presented and critical views expressed during consultations and about the need to explain how stakeholders’ concerns had been taken into account.

4.4.3. The EESC is pleased that the Commission and the Impact Assessment Board are committed to improving the quality of the process. It notes that preventive impact assessments on SMEs and micro-enterprises appear to be given greater consideration than in the past, which is in line with its previous opinions on the Small Business Act, the Think Small First principle and the SME test. The EESC stresses that these efforts must be pursued. It notes that the Think Small First principle is not intended to exempt micro-enterprises and SMEs from the application of the legislation and cannot be used for this purpose. On the contrary, the aim is to ensure that when legislation is drawn up, the fact that it will also apply to small enterprises is taken into account, without affecting its intended objective. The Committee considers that the application of these principles cannot justify using the size of an enterprise as the sole factor in determining the scope of a regulation and must not conflict with the general interest, which means in particular that the public, workers and consumers must be protected against any risks they might incur.

4.4.4. Furthermore, the EESC is extremely concerned by some of the findings referred to above. It notes that the Commission is proposing that a series of other dimensions be addressed alongside the economic, social and environmental impact assessments (9), this despite the fact that the Impact Assessment Board considers the quality of social and environmental impact assessments to be wanting in some cases. The EESC would therefore like assurances that the Commission has the means to conduct all these assessments simultaneously and that they will not be detrimental to the quality, balance, objectives, measurement tools and parameters that have been announced.

4.4.5. Lastly, the reason why some projects and proposals are not submitted for impact assessments, in particular in the Ecofin sector (two pack, six pack), is not clear and this feeds into the perception amongst some stakeholders that the process is skewed towards the economic (and competitiveness) aspects above the other two pillars. As the Commission itself has stressed, the goal of simplification must be carried forward and shared by all and be based on robust and credible analysis.

4.4.6. The EESC calls on the Commission: — to be more transparent and to give fully documented reasons why a particular measure or proposal is to be submitted for impact assessment, — to ensure that the general interest is taken into account, — to take steps to ensure that all three dimensions (economic, social and environmental) are taken into account in a more balanced way and to ensure the quality of the assessments at this level, — to take better account of the points of view expressed during consultations and to justify the way in which it has, or has not, taken them into consideration.

4.4.7. The EESC is disappointed that the European Commission’s communication does not make explicit reference to its role as a civil society advisory body which issues opinions on key aspects of EU legislation. It intends to respond positively to the more general appeal for cooperation which the Commission has addressed to the social partners and civil society and is therefore prepared to cooperate more actively in the drive to improve the process, either through consultation or by contributing expertise.

4.5. With regard to the consultation process

4.5.1. Although the Commission stresses the key role of stakeholder consultations in the process, their outcomes are not always taken into account. Moreover, the quality of the process is being undermined by the cumulative impact of the response rates to the open consultations launched by the Commission, questions about the representativeness of the respondents and the unrepresentative findings that sometimes result. The EESC wonders whether the explanation for these findings might not lie in the increasing number of consultations and the time, staff and resources that need to be deployed in order to provide an informed response. Furthermore, the questions are sometimes framed in a leading way, which may give rise to doubts about the objectivity and impartiality of the process.

4.5.2. ‘Consultation’ is the cornerstone of legislative proposals that are of good quality and based on robust evidence. Early and sufficient consultations with businesses, particularly SMEs, and their representatives would allow decisions to be taken on the basis of factual analysis and the expertise and views of the stakeholders to whom the legislation is addressed and who will be involved in its implementation. The same goes for the various organisations representing citizens (workers, welfare recipients, consumers, etc.).

4.5.3. The EESC calls for absolute priority to be given to the social partners and intermediary organisations concerned. Consulting SMEs and consumers directly and individually has proven to be ineffective, anecdotal and unrepresentative. In addition, the organisations concerned must be given a genuine opportunity to take part in preparing consultations and drawing up questionnaires.

4.5.4. The EESC therefore wonders whether it might not be preferable to put these consultations on a more structured institutional and representative foundation by taking advantage of the resources of the representative consultative bodies that already exist and creating others, should this be appropriate or necessary.

4.5.5. The EESC proposes that another departure point for consultations should be the representative bodies that exist at both EU and national level. It also notes that, failing this, there are other consultation arrangements that could serve the same purpose.

4.5.6. The Committee recommends that use be made of the expertise and potential of the European federations of employers, businesses, trade unions and NGOs and that they, rather than private consultants, also be entrusted with the task of conducting the necessary surveys and studies.

4.5.7. In any event, the EESC is ready to assume its responsibilities in this context, without prejudicing the other arrangements for the European social dialogue.

5. Specific comments

5.1. The EESC believes that the REFIT programme should be at once ambitious and simple, clear and transparent.

5.2. A certain degree of confusion has resulted from the proliferation of titles for the various agendas and programmes (Better Regulation, Smart Regulation, Think Small First, etc.).

The ranking of these programmes and projects and the relationship between them should be clarified, so that the public understands to whom they are addressed.

5.3. The transparency of the procedures is being undermined by the increase in the number of bodies involved in the process and the channels for consultation and dealing with the proposals.

5.4. With the same concern for efficiency and transparency and in view of the mechanisms that already exist, including those at the European Parliament level, the EESC will only endorse the Commission’s proposal to create a new High Level Group for work to be done in future if it is proven that this represents real added value. In the Committee’s view, the Commission has acquired the necessary internal expertise to improve the process.

5.5. The EESC notes that the Commission believes that impact assessments should be carried out at all stages of the legislative process, including on the amendments introduced by the co-legislators. In a system where there are two co-legislators and where seeking comprise is the rule, it does not seem appropriate that one of them should have the last word on impact assessment (with the risk this would entail of distorting the rules on decision-making established in the Treaty).

5.6. Furthermore, the EESC also notes that the objective of the REFIT programme also encompasses the application of law in the EU. The Commission’s impact assessment guidelines also allow for consideration of whether, in some instances, effective application of the existing legislation might not resolve the problem in question.

5.7. The EESC welcomes the efforts the Commission has made to support and monitor effective transposition of directives in the Member States. It stresses the findings set out in the 30th Annual Report on Monitoring the Application of EU Law (10), which mentions that the areas most subject to delays and infringements are the environment, transport and taxation. The EESC is concerned that, for 2012, the problems were concentrated, essentially and in descending order, in the transport, health, consumers, environment, internal market and services sectors.

5.8. The EESC believes that indiscriminate exemptions, in any sector, would allow Member States to legislate ‘à la carte’ at the national level, thereby adding to legislative complexity and legal insecurity and uncertainty in the internal market. The EESC notes that in its previous opinions it urged that, where appropriate, more systematic use be made of regulations as an instrument which, as well as providing better legal certainty, would partially resolve this problem.

5.9. The EESC draws attention to its previous opinions on ‘gold-plating’ and smart regulation, in which it called for the quality of the legal texts adopted to be improved. It believes that further efforts need to be made in this direction to ensure the effective implementation of the policy objectives pursued by the European Union.

5.10. The Committee also notes that, in some cases, self-regulation or co-regulation might prove to be an effective means of prevention or useful complement to legislation duly framed in a broad legislative framework that is clear, well-defined and rooted in the principles of transparency, independence, efficiency and accountability.

Brussels, 10 December 2014 The President of the European Economic and Social Committee Henri MALOSSE

(1) OJ C 48, 15.2.2011, p. 107, OJ C 248, 25.8.2011, p. 87 and OJ C 327, 12.11.2013, p. 33.

(2) On EU Regulatory Fitness, COM(2012) 746 final and on Regulatory Fitness and Performance Programme (REFIT): Results and Next Steps, COM(2013) 685 final.

(3) Third strategic review of Better Regulation in the European Union, COM(2009) 15 final; communication from the Commission on Smart Regulation in the European Union, COM(2010) 543 final; communication from the Commission on Smart Regulation — Responding to the needs of small and medium-sized enterprises, COM(2013) 122 final.

(4) OJ C 327, 12.11.2013, p. 33, OJ C 248, 25.8.2011, p. 87 and OJ C 48, 15.2.2011, p. 107.

(5) OJ C 327, 12.11.2013, p. 33.

(6) European Parliament resolution of 4 February 2014 on EU Regulatory Fitness and Subsidiarity and Proportionality — 19th report on Better Lawmaking covering the year 2011, which, as well as emphasising that legislation should be simple, effective and efficient, easy to understand, accessible, and deliver benefits at minimum cost, stresses that ‘evaluating the impact of new regulations on SMEs or on large companies must neither result in discrimination between workers on the basis of the size of the companies that employ them nor erode workers’ fundamental rights, including the right to information and consultation, or their working conditions, well-being at work and rights to social security, nor must it hinder improvements to these rights or their safeguarding at the workplace in the face of existing and new risks connected with work’.

The European Council of 26 and 27 June 2014 stated: ‘The Commission, the other EU institutions and the Member States are invited to continue the implementation of the REFIT programme in an ambitious way, taking into account consumer and employees protection as well as health and environment concerns’.

(7) This relates specifically to REACH, the environment, the acquis on health and safety at work, the protection of pregnant workers and better access to parental leave, occupational safety and health for hairdressers, musculoskeletal disorders, carcinogens and mutagens, tachographs, working time, part-time work, temporary work, information and consultation and information about work contracts, the labelling of food or products linked with the environment, instructions for the use of medicinal products and obligations concerning information about the cost of financial services.

(8) IAB Report 2012, IAB Report 2013.

(9) Complete list of all the reference documents pertaining to impact assessment on the Commission’s website (in English): Commission Impact Assessment Guidelines (January 2009) Guidelines; Annexes 1 — 13; Other reference documents from the DGs Operational Guidelines to Assess Impacts on Micro-Enterprises (Secretariat-General + DG Enterprise and Industry); Operational Guidance for Assessing Impacts on Sectoral Competitiveness within the Commission Impact Assessment System — A ‘Competitiveness Proofing’ Toolkit for use in Impact Assessments; Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments; Assessing Social Impacts; Assessing Territorial Impacts: Operational guidance on how to assess regional and local impacts within the Commission Impact Assessment System.

(10) http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_30/com_2013_726_en.pdf