COMMUNICATION FROM THE COMMISSION Consultation document: Towards a reinforced culture of consultation and dialogue - Proposal for general principles and minimum standards for consultation of interested parties by the Commission

Draft

Consultation document

Towards a reinforced culture of consultaton and dialogue - proposal for general principles and minimum standards for consultation of interested parties by the Commission

I. Introduction

Interaction between the European Institutions and society takes place in various forms:

- primarily through the European Parliament as the elected representation of the European citizens;

- through the institutionalised advisory bodies of the EU (Economic and Social Committee and the Committee of the Regions), based on their role according to the Treaties;

- and through less formalised direct contacts with interested parties.

In its White Paper on European Governance, the Commission committed itself to contribute to a reinforced culture of consultation and dialogue in the EU.

Through the present paper on consultation of interested parties the Commission follows up on its commitments. It is, at the same time, a direct contribution to the 'Action Plan for Better Regulation' and the new approach to impact assessment, both of which the Commission adopted simultaneously.

Wide consultation by the Commission is not a new phenomenon. In fact, the Commission has a long tradition of consulting outside interest parties in the formulation of its policies. The Commission incorporates external consultation into the development of almost all its policy areas.

The benefits of being open to outside input are, therefore, already recognised. However, the Commission has not had, until now, a Commission-wide approach to the way it undertakes consultations. Each of the departments has had its own mechanisms and methods for consulting its respective sectoral interest groups. Whilst this has undoubtedly created many examples of good relationships between the Commission and interest groups, there is a general view, shared by many within the Commission and those whom it consults, that the process should be more consistent. The reactions of interested parties to the White Paper on Governance have confirmed this assessment [1].

[1] These comments are displayed on the Commission's 'Governance' website at http://europa.eu.int/comm/governance/index_en.htm

Through the present document the Commission therefore puts forward a number of key principles, which should govern its relations with interested parties and proposes a set of minimum standards for the Commission's consultation processes.

The overall rationale of this document is to ensure that all relevant parties are consulted in an adequate way.

The principal aims of the proposed approach can be summarised as follows:

* To contribute to a better involvement of interested parties through a more transparent consultation process, which will foster the Commission's accountability.

* To provide general principles and standards for consultation that help the Commission rationalise its consultation procedures and to carry them out in a meaningful and systematic way.

* To build a framework for consultation that is coherent, yet flexible enough to take into account the specific requirements of the diversity of interests as well as the need to design appropriate consultation strategies for each policy proposal.

* To promote mutual learning and exchange of good practices within the Commission.

The present document will be published on the Internet for consultation. Details on how interested parties can participate in this consultation can be found in part V.

II. Overall rationale of the Commission's consultation processes

Consultation - A win-win option for all actors

Consultation mechanisms form part of the activities of all European Institutions throughout the legislative cycle, from the phase of policy-shaping prior to a Commission proposal to final adoption of a measure by the legislature and its implementation. Depending on the issues at stake, these consultations are aimed at providing opportunities for input in particular from representatives of regional and local authorities, civil society organisations, undertakings and associations of undertakings, individual citizens concerned, academics or technical experts, as well as interested parties in third countries.

In terms of institutionalised consultation mechanisms, the Commission, the Parliament and the Council are assisted by special institutionalised advisory bodies, i.e. the Economic and Social Committee (ESC) and the Committee of the Regions (CoR). The Commission attaches great importance to encouraging these bodies to take a more proactive role and has taken the necessary steps to achieve this (see chapter III).

However, the essential role of these advisory bodies does not exclude direct contacts between the Commission and interest groups. In fact, wide consultation corresponds to the Commission's duties according to the Treaties and contributes to putting forward sound proposals to the legislature. This is fully in line with the European Union's legal framework, which states that "the Commission should [...] consult widely before proposing legislation and, wherever appropriate, publish consultation documents". [2]

[2] Protocol (N° 7) on the application of the principles of subsidiarity and proportionality, annexed to the Amsterdam Treaty.

Therefore, there is no contradiction between wide consultations and the concept of representative democracy. It is apparent that the decision-making process in the EU is first and foremost legitimised by the elected representatives of the European peoples. As the European Parliament put it in its Resolution on the White Paper on Governance [3]: "Consultation of interested parties [....] can only ever supplement and never replace the procedures and decisions of legislative bodies which possess democratic legitimacy; only the Council and Parliament, as co-legislators, can take responsible decisions on the context of legislative procedures [....]". The guiding principle for the Commission is therefore to give interested parties a voice but not a vote. On the other hand, the challenge of ensuring an adequate and equitable treatment of all relevant parties in consultation processes should not be underestimated. The Commission underlined, in particular, its intention to "reduce the risk of the policy-makers just listening to one side of the argument or of particular groups getting privileged access[...]." [4]

[3] A5-0399/2001

[4] White Paper on European Governance

The framework proposed in the present document will contribute to overcoming this risk.

By fulfilling its duty to consult, the Commission ensures that its proposals are technically viable, practically workable and based on a bottom-up approach. In other words, good consultation serves a double purpose by helping to improve the quality of the policy outcome and at the same time enhancing the involvement of interested parties and the public at large. Transparent and coherent consultation processes run by the Commission have another advantage. They not only allow the general public to be more involved, they also enhance the legislature's opportunities for scrutiny of the Commission's activities (e.g. by making available documents summarising the outcome of the consultation).

The specific role of civil society organisations

Although the target groups vary according to the circumstances, the Commission must always ensure in its consultation procedures that all relevant interests in society have an opportunity to express their views.

In this context, civil society organisations play an important role as facilitators of a broad policy dialogue. For this reason, the Commission, in its White Paper on European Governance, stressed the importance of involving these organisations into its consultation processes. The Commission particularly encourages a coherent approach to representation of civil society organisations at European level.

This specific role of civil society organisations in modern democracies is closely linked to the fundamental right of citizens to form associations in order to pursue a common purpose, as highlighted in Article 12 of the European Charter of Fundamental Rights. [5] Belonging to an association provides an opportunity for citizens to participate actively in addition to involvement in political parties or through elections.

[5] «Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters (...)».

White Paper on European Governance

"Civil society plays an important role in giving voice to the concerns of the citizens and delivering services that meet peoples needs. [...] Civil society increasingly sees Europe as offering a good platform to change policy orientations and society. [...] It is a real chance to get citizens more actively involved in achieving the Union's objectives and to offer them a structured channel for feedback, criticism and protest."

Some difficulties in this policy area can arise from the fact that there is no common or even legal definition of the term 'civil society organisation'. It can nevertheless be used as a shorthand to refer to a range of organisations which include: the labour-market players (i.e. trade unions and employers federations - the "social partners"); organisations representing social and economic players, which are not social partners in the strict sense of the term (for instance, consumer organisations); NGOs (non-governmental organisations) which bring people together in a common cause, such as environmental organisations, human rights organisations,, charitable organisations, educational and training organisations, etc.; CBOs (community-based organisations, i.e. organisations set up within society at grassroots level which pursue member-oriented objectives), e.g. youth organisations, family associations and all organisations through which citizens participate in local and municipal life; religious communities. [6]

[6] This description corresponds to the analysis developed by the Economic and Social Committee in its opinion 'The role and contribution of civil society organisations in the building of Europe' (OJ C 329, 17 November 1999, p. 30

It is evident that this description brings together the principal structures of society outside of government and public administration, including economic actors not generally considered to be "third sector" or NGOs. This has the benefit of being inclusive and demonstrates that the concept of civil society organisations is deeply rooted in the democratic traditions of the Member Sates of the Union.

III. Improving Commission consultation procedures - An ongoing process

The Commission is not starting from scratch when it comes to the involvement of interested parties. Over the last years, it has undertaken a series of measures to improve further the way in which consultations are carried out. Some examples are outlined in the following.

The Commission will continue this process in the future. For instance, in a field that is of major importance to European citizens, the Commission is committed to implement the UN/ECE "Aarhus" Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. [7]

[7] This might require additional implementing measures at the Community level, which are being considered.

A more proactive role for the institutionalised advisory bodies

As indicated in the introduction, the Economic and Social Committee (ESC) and the Committee of the Regions (CoR) have a key part in the consultation process, based on the Treaties. As institutionalised advisory bodies of the EU, they stand for a deep rooted tradition of consultation. The Commission is keen to draw upon their experience and encourages a more proactive role for these bodies.

In 2001, the Commission, therefore, concluded Protocols on co-operation with the ESC and the CoR respectively. The rationale of these Protocols is to reinforce their function as intermediaries between organised civil society (ESC) and the regional level (CoR) respectively. As far as the ESC is concerned, this new approach corresponds particularly to the spirit of the Nice Treaty. The Treaty fostered the ESC's part in the Community framework by stipulating that it "shall consist of representatives of the various economic and social components of organised civil society".

Within the Commission, the Protocols will be implemented [8] on the basis of an internal vade-mecum for the Commission departments.

[8] The implementation of these Protocols will entail, in particular: Requests for exploratory opinions on cross-cutting issues in the framework of the strategic priorities of the Commission and a systematic consultation on Green and White Papers; an increase in ad hoc co-operation (hearings, joint conferences, other events) As far as the ESC is concerned, building upon its cross-cutting function to synthesise, other potential input aimed at enhancing its role as a facilitator of dialogue with civil society could also be considered.

According to the Protocols, these bodies will be asked, in the near future, to organise consultations on behalf of the Commission. It will then be necessary to discuss with them the way in which they can adhere to the framework laid down in this document.

Open consultation procedures

The Commission carries out broad public consultation processes on the basis of consultation documents, i.e. Green and White Papers and Communications. Within these open consultations all interested parties and individuals are able to provide the Commission with input, in line with the inclusive approach which the Commission follows.

However, this entails a number of practical constraints, which the Commission has started to address. Open consultation processes tend to lead to a large number of comments, which often can be difficult, even impossible to process. Through the Interactive Policy Making initiative the Commission has developed a special on-line tool, the use of which can contribute to overcome this problem.

Interactive Policy Making Initiative (IAPM)

On 3 April 2001 the European Commission adopted a Communication on Interactive Policy Making (C(2001) 1014), which aims to improve governance by using the Internet for collecting and analysing reactions in the marketplace for use in the European Union's policy making process. The IPM initiative is one of the tools that will help the Commission, as a modern administration, to respond more quickly and accurately to the demands of citizens, consumers and business.

The Interactive Policy Making Initiative involves the development of two Internet based mechanisms that will enhance the Commission's ability to assess the impact of EU policies (or absence of them) on the ground:

- A feedback mechanism, which helps collect spontaneous reactions in the marketplace. It uses existing networks and contact points as intermediaries in order to obtain continuous access to the opinions and experiences of economic operators and EU citizens.

- A consultation mechanism, which is designed to receive and store rapidly and in a structured way reactions to new initiatives. This includes the setting up of standing panels to gauge views, such as the Business Test Panel.

Focused consultation procedures

Good consultation requires the identification of the most appropriate consultation channels. This can include the need to define clearly the target group(s) of a consultation process.

Examples of such focused consultation mechanisms are formal consultation fora officially established by the Commission, or other structured consultation groupings, as well as ad hoc consultation exercises (e.g. hearings) with invited representatives of the relevant sectoral interests and of the public concerned. [9]

[9] In the field of financial services, the Commission has, on the basis of the Resolution on more effective regulation of securities markets adopted by the Stockholm European Council in March 2001, established an early, broad and systematic consultation process for the adoption of legislation and technical implementing measures.

By their very nature, these fora provide a kind of privileged access to the Commission's policy-shaping process. A minimum requirement of transparent Governance is therefore to shed more light on these existing consultation mechanisms. A database of these bodies is available on the Internet, including information about their remit, composition and working methods.

CONECCS

Data on formal and structured consultative bodies have been collected in a database [10] named CONECCS (Consultation, the European Commission and Civil Society). The objective is to provide information on the committees and other frameworks of the Commission through which the civil society organisations are consulted in a formal or structured way.

[10] http://europa.eu.int/comm/civil_society/coneccs/index.htm

Information on non-profit making civil society organisations organised at European level is also available to the public on the CONECCS website on the Europa server. This Directory of organisations is established on a voluntary basis and is intended only as a source of information, not a means of accreditation.

CONECCS is a dynamic tool, which is continually developing.

It is apparent that open and more focused consultation procedures are not necessarily mutually exclusive. Depending on the policy issue concerned, they are both often part of a mix of consultation procedures aimed at getting the best possible input from interested parties.

IV. General principles and minimum standards for consultations by the Commission

Further to the developments described in chapter III, the Commission now wishes to take a next operational step toward a reinforced culture of consultation by proposing a certain number of general principles and minimum standards for its consultation processes.

Nature and scope

It is proposed that the consultation relationship between the Commission and interested parties should be underpinned by certain fundamental principles. Such principles would define the environment within which they will both operate. They would also constitute the basis for any future developments in the area of consultation policy. The proposed principles draw primarily on the general principles guiding the conduct of the Commission's business. These key principles were highlighted in the Commission's White Paper on European Governance: Participation, openness, accountability, effectiveness and coherence.

For the consultation relationship to succeed, the commitment to these principles cannot be unilateral: both sides involved in the consultation process have a role in applying them effectively.

The proposal is that the Commission will be guided in the conduct of its open and/or focused consultations on major policy initiatives [11] by the general principles and the minimum standards set out in this document, without prejudice to more advanced practices applied by the Commission departments or any more specific rules to be developed for certain policy areas. Neither the general principles nor the minimum standards are legally binding.

[11] Major policy initiatives are, in particular, those that will require an extended impact assessment

For the purpose of this document 'consultations' means those processes through which the Commission wishes to trigger input from outside interested parties to its policy-shaping prior to a decision by the College of Commissioners. Consequently, the following fields are excluded from the scope of the general principles and minimum standards:

- Specific consultation frameworks foreseen in the Treaties (e.g. the roles of the institutionalised advisory bodies; the social dialogue according to articles 137 to 139 TEC) or provided for in other Community legislation

- Consultation requirements under international agreements

- The participation of Member States' representatives through the so-called 'comitology' procedure [12].

[12] According to Council decision 1999/468/EC

As flagged in the White Paper on European Governance, the general principles and minimum standards for consultation will be complemented, but not replaced, in the future by two other instruments that the Commission is developing at the moment:

- A set of guidelines on the use of expertise which will aim to encapsulate and spread good practice. In particular they should provide for the accountability, plurality and integrity of the expertise used. They will apply notably whenever the Commission is faced with a policy issues that hinges to some extent on a scientific assessment. The guidelines will be implemented in co-ordination with the minimum standards presented here, particularly since there is often a need in the policy process for an interaction between experts and interested parties.

- A framework for a more systematic dialogue with associations of regional and local government in the EU.

These instruments will respond to the specific needs of the policy areas concerned.

General principles

Participation "[The] quality of [...] EU policy depends on ensuring wide participation throughout the policy chain - from conception to implementation." [13] The Commission is committed to follow an inclusive approach when developing and implementing EU policies. Therefore, the Commission is committed to consult as widely as possible on major policy initiatives. This applies, in particular, in the context of legislative proposals.

[13] White Paper on European Governance

Openness and Accountability

"The[European] institutions should work in a more open manner [...] in order to improve the confidence in complex institutions." [14]

[14] idem

"Each of the EU institutions must explain and take responsibility for what it does in Europe". [15]

[15] idem

The Commission believes that the processes of administration and policy-making must be visible to the outside world if they are to be understood and have credibility. This is particularly true of the consultation process, which acts as the primary interface with interests in society.

Consultation processes run by the Commission must, therefore, also be transparent, both to those who are directly involved and to the general public. It must be clear:

* what issues are being developed

* what mechanisms are being used to consult

* who is being consulted and why

* what has influenced decisions in the formulation of policy.

It follows that interested parties must themselves operate in an environment that is transparent, so that the public is aware of the actors involved in the consultation processes and how they conduct themselves.

Openness and accountability are thus important principles for the conduct of organisations when they are seeking to contribute to EU policy development. It must be apparent:

* which interests they represent

* how inclusive that representation is

* how accurately they reflect those interests.

Interested parties that wish to submit comments on a policy proposal by the Commission must therefore be ready to provide the Commission and the public at large with the information described above. The CONECCS database should prove to be a useful tool in this context.

Effectiveness "Policies must be effective and timely, delivering what is needed. [16]"

[16] idem

Effective consultation requires consultation to start as early as possible. Interested parties should therefore be involved in the development of a policy at a stage where they can still have an impact on the formulation of the main aims, methods of delivery, performance indicators and, where appropriate, the initial outlines of that policy. Consultation at more than one stage may be required.

In addition, both the Commission and outside interested parties will benefit from understanding the perspective of the other. The Commission operates within a policy and political framework that is influenced by many factors. For example, it must take account of its obligations to the other European institutions under the Treaties, as well as of its international obligations to third countries and international organisations.

A prerequisite for effectiveness is the respect of the principle of proportionality. The method and extent of the consultation performed must therefore always be proportionate to the impact of the proposal subject to consultation and must take into account the specific constraints linked to the proposal.

A better understanding of such factors and of how the Commission works will help outside interested parties to have realistic expectations about what can be achieved.

Coherence

"Policies and action must be coherent [...]" [17]

[17] idem

The Commission will ensure that there is consistency and transparency in the way its departments operate in their consultation processes.

The Commission will include in its consultation processes mechanisms for feedback, evaluation and review.

However, it is not enough for the Commission alone to review its own performance within the consultation process. Interest groups must also have mechanisms for monitoring the process, so that they can see what they can learn from it and check that they are making an effective contribution to a transparent, open and accountable system.

The results of such monitoring can then be considered together with those of the Commission's own internal review processes to produce a better picture of how the arrangements are working, and how they can be refined or extended.

Minimum standards

A. Clear content of the consultation

All communication in relation to the consultation should be clear and concise, and should include all necessary information to facilitate responses.

The information to be provided in publicity and consultation documents should include:

* A summary of the context, scope and objectives of the consultation including a description of the specific issues which are open for discussion or questions with particular importance for the Commission.

* Details of any hearing, meeting or conference, where relevant

* Contact details and deadlines

* Explanation of the Commission's processes for dealing with the contributions, feed-back and of the next stages involved in the development of the policy

* If not enclosed, reference to related documentation (including, where applicable, supporting documents of the Commission's services).

B. Publication

The Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet the needs of all target audiences. Without excluding other communication tools, open public consultations should always be published on the Internet and announced on the "single access point".

For addressing the broader public, one single access point for consultation will be established where interested parties should find information and relevant documentation. For this purpose, the Commission could use the 'Your-Voice-in-Europe' webportal. [18]

[18] http://europa.eu.int/yourvoice

More traditional alternatives to the Internet (e.g. press releases, mailings) should, however, be maintained in parallel. Where appropriate and feasible, the Commission should provide consultation documents in alternative formats so as to make them more accessible to persons with disabilities.

C. Time limits For Participation

The Commission should always provide sufficient time for planning and responses to invitations and written contributions. The Commission presently considers that it should strive to provide no fewer than 6 weeks for reception of responses in written public consultations and 20 working days notice for meetings.

The main rule is to provide sufficient time for preparation and planning by those participating in Commission consultations.

Consultation periods should strike a reasonable balance between the need for adequate input and the need for swift decision-making. In urgent cases or where interested parties already had sufficient opportunities to express themselves, the period may be shortened. On the other hand a consultation period longer than six weeks might be required in order to take into accountcertain existing binding instruments (this applies, in particular, to notification requirements under the WTO agreement) or the specificity of a given proposal (e.g. because of the diversity of the interested parties or the complexity of the issue at stake).When the deadline for transmission of comments has expired, the Commission service will close the consultation and take the next steps in the administrative process (e.g. prepare for the decision by the College of Commissioners).

D. Acknowledgement and Feedback

Acknowledgement of receipt of contributions should be provided. Results of open public consultation should be displayed on websites linked to the single access point on the Internet.

Depending on the number of comments involved and the resources available, an acknowledgement could take the form of:

* An individual response (by e-mail or acknowledgement slip), or

* A collective response (by e-mail or on the Commission's single access point for consultation on the Internet. When comments are posted on the single access point within 15 working days, this will be considered as an acknowledgement of receipt.)

Contributions will be carefully analysed to see whether, and to what extent, the views expressed can be accommodated in the policy proposals. These contributions will be made public on the single access point.

The Commission will encourage practices to provide adequate feedback to responding parties and to the public at large.

In particular, explanatory memoranda accompanying legislative proposals by the Commission will include the results of prior consultation processes as well as an explanation on how these have been carried out and how the results have been taken into account in the proposal. In addition, the results of consultations carried out in the Impact Assessment process will be summarised in the related reports.

E. Specific Elements for Focused Consultations

Where the Commission carries out focused consultation procedures, the Commission should ensure that relevant parties have an opportunity to express their opinions.

In order to ensure equitable treatment, the Commission should ensure an adequate coverage of the following parties in the focused consultation process :

* those affected by the policy

* those who will be involved in the implementation of the policy, or

* bodies that have stated objectives giving them a direct interest in the policy.

In determining the relevant parties for consultation, the Commission should as well take into account the following elements:

* The wider impact of the policy on other policy areas, for example, environmental interests [19]

[19] Article 6 of the Treaty establishing the European Community

* The need for specific experience, expertise or technical knowledge, where applicable

* The need to involve non-organised interests, if necessary

* The track record of participants in previous consultations

* The need for a proper balance, where relevant, between the representatives of:

- large and small organisations

- social and economic actors

- wider constituencies and specific target groups (for example, women, the elderly, the unemployed, or ethnic minorities)

- organisations in the European Union and those in non-member countries (e.g. in the candidate or developing countries or in countries that are major trade partners of the European Union).

Where appropriate, the Commission encourages contributions from interested parties organised at European level.

It should be noted that the Economic and Social Committee has produced a set of eligibility criteria for the so-called civil dialogue [20]. The Committee wishes to discuss these further with the European institutions and civil society organisations.

[20] «In order to be eligible, a European organisation must: exist permanently at Community level; provide direct access to its members' expertise and hence rapid and constructive consultation; represent general concerns that tally with the interest of European society; comprise bodies that are recognised at Member State level as representatives of particular interests; have member organisations in most of the EU Member States; provide for accountability to its members; have authority to represent and act at European level ; be independent and mandatory, not bound by instructions from outside bodies; be transparent especially financially and its decision-making structures.» (Opinion on 'European Governance - a White Paper' of 20 March 2002; CES 357/2002) .

Where a formal or structured consultation body already exists, the Commission should take steps to ensure that its composition properly reflects the sector it represents. If this is not the case, the Commission should consider how to ensure that all interests are being taken into account (e.g. through other forms of consultation).

Results of more restricted consultations should, as far as possible, be subject to public scrutiny on the designated single access point on the Internet.

V. Consultation on the proposed general principles and minimum standards

Following publication of its White Paper on European Governance, the Commission has received many comments [21], which strongly welcome its commitment to establish a coherent framework for the consultation of interested parties. Many contributions already contain operational proposals, which are directly relevant to the approach developed in this document. Several organisations stressed their interest in supplying the Commission with more detailed comments on the basis of an actual draft consultation framework proposal.

[21] These comments are displayed on the Commission's 'Governance' website

The Commission, therefore, wishes to encourage all interested parties to submit their comments on the proposed general principles and minimum standards by providing an opportunity for them to submit comments.

These reactions and the comments the Commission has already received will be carefully analysed to see whether, and to what extent, they can be incorporated into the final design of the general principles and minimum standards to be adopted by the Commission in the autumn 2002.

Reactions to the Commission's proposals may be sent to the Commission before 31 July 2002.

Contributions can be submitted either by e-mail to:

SG-Consultation-minimumstandards@cec.eu.int

Or by post to:

European Commission

Secretariat-General

Office: BREY 9/210

B-1049 Brussels

All contributions will be displayed on the 'Governance' website.

Interest groups submitting comments on behalf of their organisations will be asked to provide the Commission with basic information about their general objectives, structure and the way in which they have consulted their members on the Commission's proposals. Where these organisations are already part of the CONECCS database, they will be asked to ensure that the data related to their organisation are up to date. For organisations that do not wish to use this facility and those that do not fulfil the eligibility criteria a separate information sheet will be provided.

Comprehensive information about this consultation will be made available on the Commission's 'Governance' web site at:

http://europa.eu.int/comm/governance/index_en.htm.