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 — Completing the Better Regulation Agenda: Better solutions for better results

(COM(2017) 651 final)

(own-initiative opinion)

(2018/C 262/04)

Rapporteur: Bernd DITTMANN

Plenary Assembly decision 15.2.2018 Legal basis Rule 29(2) of the Rules of Procedure Section responsible Single Market, Production and Consumption Adopted in section 9.3.2018 Adopted at plenary 19.4.2018 Plenary session No 534 Outcome of vote (for/against/abstentions) 185/0/0

1. Conclusions and recommendations

1.1. The EESC is of the view that the Better Regulation Agenda should become a permanent programme in delivering high-quality Union legislation without undermining key policy objectives or creating deregulation pressure. It should be continued, further developed and improved by the new Commission after 2019.

1.2. The EESC calls on the Commission to provide a detailed roadmap of the forthcoming Better Regulation evaluation and clarify which form of involvement of the EESC and stakeholders is envisaged.

2. The Commission’s Communication on Better Regulation

2.1. Completing the Better Regulation Agenda: Better solutions for better results On 24 October 2017 the Commission issued the Communication ( 1 ) (hereafter ‘the Communication’).

2.2. In this Communication, the Commission takes stock of the implementation progress of the Better Regulation Agenda (hereafter ‘the Agenda’) since its adoption in May 2015.

2.3. In 2018, the Commission will evaluate the better regulation system en bloc . The present opinion serves as a response to the Communication as well as input to the preparations for this forthcoming evaluation.

3. General remarks

3.1. The EESC welcomes the Commission’s continued commitment to Better Regulation and its on-going efforts to implement the objectives set out in the Agenda in May 2015 as outlined in the Communication. Better Regulation is a process subject to constant improvement and requires commitment and contribution from all actors involved.

3.2. Better Regulation should help create accountable, participatory and transparent policymaking processes that deliver simple, clear, coherent, fit-for-purpose and easily implementable rules. This is an essential precondition to ensure public trust in the EU and its institutions. It should help create effective and consistent regulatory frameworks that enable innovation and sustainable growth and support the completion and proper functioning of the Single Market.

3.3. Better Regulation should not result in over-bureaucratisation of EU policymaking. Political decisions must not be replaced by technical procedures.

3.4. In a previous opinion ( 2 ) , the EESC emphasised that Better Regulation ‘is not intended to be about “more” or “less” regulation in the EU, or about deregulating specific policy areas or giving other areas greater priority and thus calling into question the values for which the EU stands: social protection, environmental conservation and fundamental rights ( 3 ) . Better Regulation is first and foremost a tool for ensuring that evidence-based political objectives can be achieved effectively, in the light of these values, without environmental or consumer rights or social standards being restricted or the shifting of responsibilities within the institutional structure by the establishment of new bodies. Better Regulation cannot and must not be substituted for political decisions’.

3.5. The EESC acknowledges the implementation progress of the Agenda to date. It welcomes in particular the more methodical use of impact assessments and ex post evaluations; the more systematic consultation of stakeholders; the revised Better Regulation guidelines and toolbox; the REFIT programme and REFIT Platform; and the appointment of the Regulatory Scrutiny Board (RSB).

3.6. ex post evaluations. It refers to its many opinions in this context The EESC is actively involved in Better Regulation, notably through its participation in the REFIT Platform and drafting ofevaluations. It refers to its many opinions in this context ( 4 ) . Nevertheless, the Committee is not accounted for in the Agenda or in the Communication. The Committee is not part of the Interinstitutional Agreement on Better Law-making either. This shows that the Commission and the legislators continue to take insufficient account of the role and function of the Committee as enshrined in the Treaties and of the knowledge and expertise of its members and the civil society they represent.

3.7. Participation in the Better Regulation programme and its respective instruments and procedures requires financial and human resources that not all civil society organisations have at their disposal (e.g. the generation of data, participation in public consultations, etc.). The same holds true for small enterprises. The EESC calls upon the Commission to ensure that the Better Regulation programme remains open and accessible to all organisations and interests, irrespective of their size and their financial and human resources.

4. Specific remarks

4.1. The EESC is the institutional voice of organised European civil society and serves as intermediary between the EU legislators and civil society organisations and social partners. The EESC has gathered considerable experience with and expertise on all issues relating to Better Regulation. It wishes to remind the Commission here of some of its specific recommendations on aspects covered by the Communication as well as on other aspects which it deems necessary to stress.

4.2. The EESC believes that the Communication provides a good general overview of the implementation progress of the Agenda in the respective areas of Better Regulation. However, it remains too vague on the exact measures the Commission envisages to develop the better regulation programme further. Furthermore, the Communication fails to provide a reference to and outline of the forthcoming evaluation of the better regulation programme in 2018, its key focus areas, and which form of involvement of the EESC as well as stakeholders is planned.

4.3. Proportionality and subsidiarity

4.3.1. The EESC welcomes the Commission’s focus on key priorities and ‘being big on the big things’. It reiterates that the Union should only act where the principles of subsidiarity and proportionality are respected and where common action adds value for all.

4.3.2. As stated in its opinion ( 5 ) , the EESC is ‘in favour of clarifying the principles of subsidiarity and proportionality which are sometimes used as arguments by opponents of legislative initiatives, without sufficient substantiation of their underlying reasoning’.

4.3.3. Task Force on Subsidiarity and Proportionality The EESC takes note of the appointment of a ( 6 ) . It calls upon the Task Force to take due account of the Committee’s opinions and recommendations on this issue.

4.3.4. The EESC calls for improved monitoring of subsidiarity and proportionality and stronger involvement of Member States and their parliaments in ex post assessments.

4.3.5. The EESC calls upon the Commission to better promote tool No 5 of the Better Regulation Toolbox (‘legal basis, proportionality and subsidiarity’) across its services (horizontally and vertically) to increase compliance with this tool when drafting impact assessments.

4.4. Impact Assessments (IAs)

4.4.1. The EESC refers to the suggestions it made in its opinion ( 7 ) on how to improve the European impact assessment ecosystem.

4.4.2. IAs should be the standard procedure for any new legislative proposal including delegated and implementing acts. Where proposals are not put forward with an IA, the Commission needs to explain in detail the reasons and provide all data and evidence that led to and/or supports its proposal.

4.4.3. The Better Regulation Guidelines explicitly refer to the fact that impact assessments can and must be undertaken for legislative initiatives as well as delegated and implementing acts. We encourage the Commission therefore to evaluate in greater detail and with greater transparency towards stakeholders and the EESC the need to perform an IA on these acts. The fact of having performed an IA on the legislative text from which the delegated and implementing acts stem cannot suffice to justify the non-performance of an IA on the derived acts. Each individual act must be evaluated on its own merits, especially because delegated and implementing acts can have crucial repercussions on stakeholders and civil society overall.

4.4.4. Better Regulation Guidelines and Toolbox The ( 8 ) are the central handbook for Commission services when conducting IAs. However, the EESC points out that the guidelines and toolbox are developed primarily for the specific use of EU services and their specifications cannot offer stakeholders the possibility to understand how to properly use the tools necessary for impact analysis. Therefore, the EESC asks the Commission to make those tools accessible to the greater public with an operational version.

4.4.5. Regulatory Scrutiny Board (RSB) However, the EESC observes a lack of compliance with these guidelines resulting in deficient IAs. This is confirmed and substantiated by the 2016 annual report of the(RSB) ( 9 ) . The EESC thus encourages the Commission to more strongly promote the Better Regulation principles across its services, e.g. through mandatory regular staff training programmes.

4.4.6. The RSB 2016 annual report shows that Commission services only partly implement the Board’s recommendations after receiving an initial negative opinion. The EESC thus proposes that the RSB have a suspending veto in cases where it issues a double-negative opinion compelling the Commission service to revise its IA until the necessary quality requirements are met. The RSB should not have any veto on political decisions.

4.4.7. The EESC supports the ‘ think small first’ principle and encourages the Commission to strengthen the focus on SMEs, including micro and very small enterprises, in its impact assessments.

4.5. Transparency, legitimacy and accountability

4.5.1. On the Transparency Register , the EESC welcomes the 2016 Commission proposal for a legally-binding Interinstitutional Agreement for a mandatory Transparency Register which besides the Commission and Parliament would also cover the Council.

4.5.2. The EESC welcomes the fact that the public consultation for important initiatives will now be available in all official languages, with all others being held at least in French, German and English. The EESC reminds the Commission of the need to provide translations of impact assessment summaries in all official languages ( 10 )

4.5.3. On stakeholder engagement, the EESC refers to its opinion engagement, the EESC refers to its opinion ( 11 ) and to the REFIT Platform opinion ( 12 ) which the EESC representatives in the REFIT Platform helped draft. The EESC welcomes the efforts made by the Commission to improve its stakeholder consultation mechanisms but believes that additional efforts are necessary to increase participation, openness and accountability, and the effectiveness and coherence of such consultations. To this end, the EESC encourages the Commission to consider and fully implement the suggestions outlined in the two above-mentioned opinions.

4.5.4. Given its representative function, the EESC is well suited to help identify stakeholders most affected by a proposed policy measure and help gather experience with legislation already in place. The Commission should consult the EESC more closely when developing consultation strategies and identifying relevant target groups, both ex ante and ex post .

4.6. Simplifying legislation and tackling unnecessary costs

4.6.1. In its opinion ( 13 ) , the EESC states that ‘European legislation is an essential factor in integration, not a burden or cost to be reduced. On the contrary, when proportionate it is an important guarantee of protection, promotion and legal certainty for all European stakeholders and citizens’.

4.6.2. At the same time, the EESC states in its opinion ( 14 ) that it is ‘essential to avoid needless regulatory costs. Regulatory costs need to be proportionate to the benefits they create’.

4.6.3. evaluate first’ principle . As it stated in its opinion ex post evaluations of the Community acquis .’ The EESC firmly supports the ‘. As it stated in its opinion ( 15 ) , the EESC can ‘play a useful role as an intermediary between legislators and those using EU legislation. The EESC (…) continuously adapts its working methods to help assess the quality of the application of Community law. Thus it has recently decided to take an active part in the evaluation of the legislative cycle, carrying out its ownevaluations of the.’

4.6.4. qualitative approach which operates on an equal footing with quantitative analysis, taking into account research into the expected benefits of the legislation’. Besides regulatory costs, regulatory benefits , including net benefits, should also be quantified where appropriate and should be more systematically be taken into account in Commission impact assessments. As stated in its opinion ( 16 ) , the Committee ‘advocates awhich operates on an equal footing with quantitative analysis, taking into account research into the expected benefits of the legislation’. Besides regulatory costs, regulatory, including net benefits, should also be quantified where appropriate and should be more systematically be taken into account in Commission impact assessments.

4.6.5. The EESC is of the view that certain costs are indispensable to achieve policy objectives. Costs should only be reduced when it is proven that they are not necessary to achieve the policy objective. The EESC shares the Commission’s view that the reduction of unnecessary costs should be based on evidence from a ‘case-by-case’ assessment and not on simple numerical targets, so that the intended objectives of the legislation are fully maintained.

4.6.6. REFIT , the EESC refers to its relevant opinions REFIT Platform with three members from its three Groups who attend the Platform meetings on a rotating basis. The members work closely to identify political priorities for the EESC and prepare joint positions for the Platform meetings on the basis of agreed positions set out in past opinions. On, the EESC refers to its relevant opinions ( 17 ) . The EESC participates in REFIT through its membership in thewith three members from its three Groups who attend the Platform meetings on a rotating basis. The members work closely to identify political priorities for the EESC and prepare joint positions for the Platform meetings on the basis of agreed positions set out in past opinions.

4.6.7. The EESC reiterates that the focus of the work of the REFIT Platform is ex post . The Platform is tasked to examine suggestions made via the Lighten the Load website and develop suggestions on how to simplify already existing EU legislation. The Platform should not be used to propose new legislation.

4.6.8. The EESC notes that the specific interests of SMEs are not explicitly represented in the REFIT Platform. The Committee therefore calls upon the Commission to invite an appropriate representative to take part in the REFIT Platform Stakeholder Group.

4.7. Assessment of alternative approaches for simplification and reducing costs

4.7.1. On setting regulatory burden reduction targets in the area of better regulation, the EESC is of the view that regulatory burden reduction targets should be set ex post in the context of the REFIT programme and based on comprehensive evaluation including civil society and stakeholder dialogue.

4.7.2. Considering the difficulty in obtaining the necessary data to establish scientifically sound baseline calculations for setting ex ante regulatory burden reduction targets, the EESC is not in favour of setting such targets, either for individual sectors or for the economy as a whole. The same holds true for politically set numerical targets such as the one-in, one-out principle.

4.8. Implementation and enforcement of Union law

4.8.1. On implementation and enforcement of Union law, the EESC refers to its numerous opinions ( 18 )

4.8.2. The applicability of Union legislation needs to be considered early in the policymaking process as part of the impact assessment. The EESC urges the Commission services to adhere strictly to the impact assessment guidelines outlined in chapter IV of the Better Regulation Toolbox (‘implementation, transposition and preparing proposals’). Special attention should be given to the specificities of the different national political and legal systems, and the different resources and capacities Member States have available to transpose and apply European law.

4.8.3. Regulatory burden is generated mostly at national level because of the transposition and application of Union law by Member States’ authorities (overregulation). In its opinions ( 19 ) , the EESC states that most failures to apply or implement Union law properly arise from failure to transpose directives. The EESC therefore advocates having recourse to regulations rather than directives to avoid inconsistent regulatory frameworks across the EU ( 20 ) . The existing level of protection of citizens, consumers, workers and the environment must however not be decreased in any Member State.

4.8.4. joint and coordinated effort by the principal actors, i.e. the Commission, the European Parliament, the Council and the Member States, involving to the utmost extent possible the regional and local level as well as civil society and stakeholders. The EESC considers the Commission to be the leading actor in coordinating this effort and, as stated in its opinion The EESC believes that proper implementation of Union legislation is aby the principal actors, i.e. the Commission, the European Parliament, the Council and the Member States, involving to the utmost extent possible the regional and local level as well as civil society and stakeholders. The EESC considers the Commission to be the leading actor in coordinating this effort and, as stated in its opinion ( 21 ) , in ‘promoting confidence between enforcement authorities in supporting networks of public authorities, the systematic assessment of their performance and the identification and spread of best practices’.

4.8.5. In its Communication the Commission proposes several measures to improve the implementation of Union legislation. These include establishing a more systematic approach to monitoring and evaluating the performance of legislation in the context of the Interinstitutional Agreement on Better Law-making; supporting Member States with implementation plans; and developing country reports mapping national strengths and weaknesses regarding implementation. The EESC welcomes the Commission’s special attention to this issue and the proposed measures but finds it regrettable that none of them appear to envisage including the EESC.

4.8.6. As called for in its opinion ( 22 ) , ‘when particular directives are being transposed, the Committee would like to provide its own distinct input into the European Parliament’s own-initiative report on the implementation of EU legislation by Member States by homing in on the additions made by the Member States when transposing’.

4.8.7. infringement policy in its Communication ‘ EU law: Better results through better application ’ more quickly and rigorously pursue cases where Member States incorrectly transpose EU legislation or fail to do so at all. Lastly, the EESC welcomes the strategic approach the Commission has set out to itsin its Communication ‘ ( 23 ) . It encourages the Commission topursue cases where Member States incorrectly transpose EU legislation or fail to do so at all.

4.9. Working with the other institutions

4.9.1. The EESC represents the organised end-users of Union law and as such should be seen by the Council, the European Parliament and the Commission as a partner and resource to assess the practicability of legislative projects from a hands-on and empirical perspective.

4.9.2. Considering the active role the EESC plays in Better Regulation and law-making as outlined above, the Committee strongly urges the Commission, European Parliament and Council to include the Committee formally into the Interinstitutional Agreement on Better Law-making.

Brussels, 19 April 2018. The President of the European Economic and Social Committee Luca JAHIER

(1) COM(2017) 651 final.

(2) OJ C 13, 15.1.2016, p. 192.

(3) COM(2015) 215 final.

(4) Cf. inter alia: Ad hoc group on Monitoring the application of EU legislation; OJ C 487, 28.12.2016, p. 51; OJ C 303, 19.8.2016, p. 45; OJ C 13, 15.1.2016, p. 192; OJ C 345, 13.10.2017, p. 67; OJ C 13, 15.1.2016, p. 145; OJ C 434, 15.12.2017, p. 11; OJ C 291, 4.9.2015, p. 29; OJ C 230, 14.7.2015, p. 66; OJ C 43, 15.2.2012, p. 14; OJ C 248, 25.8.2011, p. 87; OJ C 18, 19.1.2011, p. 95; OJ C 128, 18.5.2010, p. 103; OJ C 277, 17.11.2009, p. 6; OJ C 100, 30.4.2009, p. 28; OJ C 204, 9.8.2008, p. 9.

(5) OJ C 487, 28.12.2016, p. 51.

(6) C(2017) 7810.

(7) OJ C 434, 15.12.2017, p. 11.

(8) SWD (2017) 350 and https://ec.europa.eu/info/better-regulation-toolbox_en

(9) Regulatory Scrutiny Board, Annual Report 2016, https://ec.europa.eu/info/sites/info/files/2016-rsb-report_en.pdf Cf. especially p. 13 and p. 15.

(10) OJ C 434, 15.12.2017, p. 11 (point 4.3.1).

(11) OJ C 383, 17.11.2015, p. 57.

(12) REFIT Platform Opinion on submissions XXII.4.a by the DIHK and XXII.4.b by a citizen on Stakeholder consultation mechanisms. Date of Adoption: 7.6.2017.

(13) OJ C 303, 19.8.2016, p. 45.

(14) OJ C 487, 28.12.2016, p. 51.

(15) AHG ECA Putting EU law into practice landscape review. Ad hoc Group on ‘Monitoring the application of EU legislation’, OJ C 81, 2.3.2018, p. 81.

(16) OJ C 434, 15.12.2017, p. 11.

(17) OJ C 230, 14.7.2015, p. 66; OJ C 303, 19.8.2016, p. 45.

(18) Ad hoc group; OJ C 303, 19.8.2016, p. 45; OJ C 291, 4.9.2015, p. 29; OJ C 18, 19.1.2011, p. 95; OJ C 175, 28.7.2009, p. 26; OJ C 204, 9.8.2008, p. 9; OJ C 325, 30.12.2006, p. 3; OJ C 24, 31.1.2006, p. 52; OJ C 24, 31.1.2006, p. 39.

(19) Ad hoc group; OJ C 13, 15.1.2016, p. 192.

(20) OJ C 18, 19.1.2011, p. 95.

(21) OJ C 24, 31.1.2006, p. 52.

(22) OJ C 303, 19.8.2016, p. 45.

(23) C(2016) 8600 (OJ C 18, 19.1.2017, p. 10).