EN Official Journal of the European Union C 303/45

Opinion of the European Economic and Social Committee on REFIT

(exploratory opinion)

(2016/C 303/06)

Rapporteur: Denis MEYNENT

On 13 January 2016, 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:

REFIT

(exploratory opinion).

The REFIT subcommittee, set up under Rule 19 of the Rules of Procedure, which was responsible for preparing the Committee’s work on the subject, unanimously adopted its draft opinion on 19 April 2016.

At its 517th plenary session, held on 25 and 26 May 2016 (meeting of 26 May 2016), the European Economic and Social Committee adopted the following opinion by 185 votes to 4, with 8 abstentions.

1. Conclusions and recommendations

1.1 The Committee notes that the REFIT (1) programme’s prime aim is to better the quality and efficacy of EU legislation and to draft simple, understandable and coherent rules, without calling into question established strategic objectives or being detrimental to the protection of citizens, consumers, workers, social dialogue or the environment.

1.2 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.

1.3 Impact assessments of any legislative proposals must be integrated and accord due importance to the economic, social and environmental dimensions, including for SMEs. The Committee calls for the Parliament, the Council and the European Commission to agree on a common methodology on impact assessments, which could also serve as a prompt for the Committee and the Committee of the Regions (CoR).

1.4 Both the public consultation process and the consultation of experts and stakeholders should be as open as possible, but cannot be a substitute for the consultation of social partners and the Committee.

1.5 The Committee calls on the Commission to include in its scoreboard an annual assessment — both quantitative and qualitative — of the main costs and benefits of REFIT programme measures, including the level and quality of employment, and social, environmental and consumer protection.

1.6 The decision-making process should remain as smooth and relevant as possible. The bodies and filters set up to check the legitimacy of the process must not undermine political decision-making, which must remain sovereign. There is a need here to stand up to bureaucratisation of the decision-making process.

1.7 The Committee duly notes the introduction of the REFIT platform, which has been given a mandate to work towards more effective legislation and simpler administrative rules. It stresses that it should be restricted to carrying out a limited review of a number of topics and cannot replace the co-legislators or the mandatory consultation of the Committee — since its work is of a different nature — and the social partners, as provided for by the Treaties. It calls on the Commission to make public the criteria for shortlisting the suggestions addressed to the platform, to ensure these are balanced and to make clear the follow-up to the platform’s recommendations so that influences can be traced.

1.8 As regards the representativeness of the REFIT platform, the Committee thinks that if it were granted two additional seats, this would allow it to fully respect the nature of its mandate and reflect the civil society that it is charged with representing. The Committee also notes the absence of pan-European representation of micro, small and medium-sized enterprises in the platform’s ‘stakeholder group’ and calls for this to be remedied as soon as possible.

1.9 The Committee, with the advantages of its direct links with the grassroots level, a huge network of national organisations and the expertise of its members, is well-placed to make a major contribution to impact assessments carried out at a European level. It intends to give priority to ex post and qualitative assessments, in order to be able to determine the impact of legislative action or of a European policy and to pass on the experience of European economic and social partners.

1.10 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 annual report on the implementation of EU legislation by Member States by homing in on the additions made by the Member States when transposing.

1.11 The Committee calls for the REFIT programme exercise to be a two-way street — in other words, one that does not conclude in advance what course regulation should take: validating, extending, complementing, amending or repealing legislation.

1.12 The Committee could not agree to be a part of any exercise that sought to quantitatively diminish the EU acquis without measuring in advance all the consequences on social, environmental and consumer protection.

1.13 The Committee supports a more rigorous ex post assessment of the effects of regulation in the EU policy cycle, with particular reference to the expected impact on growth and employment set out in the impact assessment that accompanies the original legislative proposal. Ex post evaluations should be conducted in a pluralistic way following a reasonable period of time after the deadline for transposition into national law.

2. General comments

2.1 The Committee notes that legislation is essential in order to achieve the aims of the Treaty and to create the right environment for smart, sustainable and inclusive growth that benefits the public, businesses and workers (2). Regulation also helps to improve well-being, protect the public interest and fundamental rights, promote a high level of social and environmental protection and ensure legal certainty and predictability. It should prevent the distortion of competition and social dumping.

2.2 The Committee therefore welcomes Vice-President Timmermans’ repeated assertion that the REFIT programme will not lead to deregulation of the EU acquis or reduce the standard of social and environmental protection and fundamental rights (3).

2.3 While the Committee believes that regulation generates costs and administrative burdens — which could turn out to be onerous or unnecessary — it also generates substantial benefits for the public, businesses and public authorities. The Committee points out that smart regulation must always seek to achieve real added value. Wherever possible, EU rules must do away with burdens, not create new ones.

2.4 The Committee thinks that ‘Better law-making’ must adopt the approach best suited to taking forward completion of the EU single market: targeted harmonisation, application of the mutual recognition principle in non-harmonised areas where appropriate, co-regulation, self-regulation and standardisation. The Committee points out in this connection that targeted and smart harmonisation of laws helps to remove obstacles to the smooth running of the internal market. The harmonisation of 28 different bodies of national law does a great deal to simplify and trim the regulatory and administrative burden for the EU’s business and citizens.

2.5 The Committee notes that the REFIT programme’s prime aim is to better the quality and efficacy of EU legislation and to draft simple, understandable and coherent rules, without calling into question established strategic objectives or being detrimental to the protection of citizens, consumers, workers, social dialogue or the environment.

2.6 In this connection the Committee points out its commitment to ensuring that the legislation at issue and the associated burden are necessary, that the final benefits they provide exceed the costs they generate, and that the legislation is proportionate and guarantees sufficient legal certainty.

2.7 Impact assessment

2.7.1 The Committee duly notes the signing of the interinstitutional agreement on better law-making by the three institutions on 13 April 2016.

2.7.2 The Committee particularly welcomes their recognition that the impact assessment system is an instrument intended to help them reach well-informed decisions and is not a substitute for political decisions (4).

2.7.3 The Committee is pleased that the Commission has included, within the ambit of integrated, balanced and pluralistic impact assessments, alternative approaches that address the cost of non-Europe and the impact of the different options on competitiveness, the effect of the proposals on SMEs and microenterprises, and the digital and territorial dimension (5).

2.7.4 The Committee welcomes the Commission’s ability to conduct its impact assessment either on its own initiative or at the request of the European Parliament or the Council, but regrets that each institution makes its own decision on how to actually go about the assessment. The Committee calls for the three institutions to agree on a common methodology on impact assessments, which could also serve as a prompt for the EESC and the CoR in drafting their own amendments.

2.7.5 The Committee’s position is that impact assessments must be carried out within the EU institutions themselves. However, if it is intended for particular reasons to use private consultants, the Committee is adamant that: — the specifications be drawn up impartially on the basis of clear and transparent criteria and be made public in advance, — candidates be selected under conditions of utter transparency on the basis of a broad and pluralistic invitation to tender that enables consultants to be rotated and their competences to be verified, — the award of the contract be made public.

2.8 Stakeholder consultation

2.8.1 The Committee believes that the consultation of stakeholders and experts must not replace that of the social partners, the Committee and the Committee of the Regions, which play their role at well-defined points in the legislative cycle and within the limits set out by the TFEU, nor must it replace existing consultations at national level, which must be based on strengthened participation of social partners. It points out that accurate stakeholder mapping is essential to make sure those taking part are truly representative and that the consultation process is sound. It calls on the Commission to use the transparency register to achieve this.

2.8.2 The Committee calls for consultation to be performed without prejudice to the structured civil dialogue (Article 11(2) TEU) and consultations carried out within specific frameworks, such as consultation of the social partners as part of social dialogue (employers’ organisations and trade unions) (Article 154 TFEU) or of advisory bodies, such as the European Economic and Social Committee (Article 304 TFEU).

2.8.3 The Committee stresses that the ‘stakeholder mapping’ must ensure a good geographical breakdown by target group, with special attention to under-represented groups. A substantiated weighting system should be applied when analysing responses to consultations (6).

2.9 The REFIT programme

2.9.1 The Committee duly notes the general aims of the Commission’s REFIT programme and draws attention to its opinions (7) covering the ‘Better regulation’ programme and ‘smart regulation’. In the Committee’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. It must also 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.

2.9.2 The Committee notes that the Commission is seeking to improve the process and quality of the instruments intended to ensure the best possible scrutiny of implementation.

2.9.3 The Committee calls on the Commission to include in its scoreboard an annual assessment — both quantitative and qualitative — of the main costs and benefits of REFIT programme measures, including the level and quality of employment, and social, environmental and consumer protection.

2.9.4 The Committee wants to make it clear that better regulation cannot — and should not — be a substitute for political decisions.

2.10 REFIT platform

2.10.1 The Committee duly notes the creation of the REFIT platform, in which it is involved and which is intended to analyse the proposals to reduce the unnecessary administrative and regulatory burden and facilitate the application of EU legislation in the Member States. It notes that the areas relating to social dialogue and the competence of the social partners have been removed from the platform’s remit.

2.10.2 The Committee notes, however, that the platform must: — remain an advisory forum for pooling ideas which cannot alter how the institutions — and especially the co-legislators — operate, — respect the consultation of the Committee and other mandatory consultations provided for in the Treaties, in particular Article 154 TFEU relating to the social partners, — be restricted to carrying out a review of a limited number of topics.

2.10.3 The Committee also expects that: — the platform should not duplicate the consultation processes implemented elsewhere and should not constitute an unnecessary layer of bureaucracy, — the platform should not interfere in the decision-making process on the grounds that the platform has been consulted, has discussed a particular issue or suggested a particular way to proceed.

2.10.4 The Committee highlights the fact that the large number of participants in the platform, the very varied nature of the stakeholders (Member States, social partners, NGOs and civil society), the extremely broad range of topics on the agenda, as well as the limited frequency of meetings, are unlikely to generate in-depth discussions on the suggestions considered by the platform.

2.11 Representativeness of the REFIT platform

2.11.1 The Committee points out in this connection that, despite being an institution established by the Treaties and representative of the diversity of the EU, it only has a single seat and its three groups take turns in participating in the platform’s work.

2.11.2 The Committee thinks, therefore, that if it were granted two additional seats, this would respect the tripartite nature of the institution and its mandate, and so reflect the civil society that it is charged with representing.

2.11.3 The Committee notes the absence of pan-European representation of micro, small and medium-sized enterprises in the platform’s ‘stakeholder group’ and calls for this to be remedied as soon as possible.

2.12 Workings of the platform

2.12.1 The Committee calls on the Commission: — to clarify the methods and criteria for the selection of parties represented in the platform, — to ensure that all stakeholder representatives have the material resources to enable them to prepare for meetings and to contribute effectively at them, — to make public the number of suggestions received by the Commission and forwarded to the platform and the criteria for shortlisting them, — to make sure that the suggestions are truly representative (Member States, social partners, civil society), — to provide comprehensive, timely and effective preparatory documents for the members, to allow them to prepare for the meeting in an optimum manner with the aim of contributing effectively to the whole experience, — to follow up on the recommendations so that the influences can be traced, — to publish the results obtained as part of the work of the platform.

3. Ancillary comments

3.1 Assessment of EU policies

3.1.1 The Committee points out that it must be considered an institutional partner in its own right and not merely a subcategory of stakeholders with many, varied and conflicting interests.

3.1.2 The Committee points out that it is well placed — with the advantages of its direct links with the grassroots level, a huge network of national organisations and the expertise of its members — to make a major contribution to this impact assessment.

3.1.3 The Committee stresses that the assessment process will strengthen its relations with the various civil society organisations and enable it to further expand this role as a bridge between the institutions and civil society representatives.

3.1.4 Specifically, the EESC points out that its assessment will take the form of recommendations on policy and that these will highlight the main impacts of the policy in question on civil society, while also suggesting the best way forward.

3.1.5 The Committee stresses that it must give priority to ex post and qualitative assessments, in order to be able to determine the impact of legislative action or of a European policy and to pass on the experience of European economic and social partners.

3.1.6 The Committee thinks that the ex post assessments by the Commission and the Parliament, to which it will contribute, should serve as the basis for a legislative amendment or new legislation on which it will be consulted.

3.1.7 The Committee is delighted that it will thus be able to be fully involved in the legislative cycle and have many more opportunities to help with the drafting of future EU policy strategies.

3.2 Transposition of directives

3.2.1 When directives are being transposed into domestic law, the Member States sometimes add elements that bear no relation whatsoever to the EU legislation concerned. The Committee thinks, therefore, that these add-ons should be made evident either by the transposing law or laws themselves or by documents relating to them (8). In this connection, the Committee deprecates the use of the term ‘gold-plating’ (meaning ‘overregulation’), since it stigmatises certain national practices and precludes a discriminating and flexible approach.

3.2.2 Where harmonisation is minimal, the Committee thinks that the Member States must retain the option of drafting provisions in their domestic law that seek to achieve: greater employment, better living and working conditions, adequate social protection, a high and sustainable employment rate and combating exclusion (9), the promotion and development of SMEs and high standards of health and consumer protection (10), as well as protection in the environmental sphere (11) — without, however, erecting needless regulatory or administrative barriers. The EESC thinks it important, therefore, to favour regulations rather than directives wherever possible.

3.2.3 The Committee notes that the efforts invested in achieving maximum harmonisation in legislative proposals quite often lead to a plethora of derogations and exclusions, the result of which is to create and legitimise further barriers to the internal market.

3.2.4 The Committee can, it believes, play a useful role as an intermediary between legislators and those using EU legislation. It can provide its own distinct input into the European Parliament’s own-initiative report on the annual report on the implementation of EU legislation by Member States by homing in on the additions made by the Member States when transposing. It thinks the study drafted by its Single Market Observatory on ‘The workings of the Services Directive in the construction sector’ (12), as well as the study by its Labour Market Observatory on ‘The implementation of EU policies for youth unemployment’ (13) — to give just two examples — could be useful in terms of methodology.

3.3 Outlook

3.3.1 The Committee calls for the REFIT programme exercise to be a two-way street — in other words, one that does not conclude in advance what course regulation should take: extending, complementing, amending or repealing legislation.

3.3.2 The Committee agrees that the Commission should carry out a permanent screening and re-evaluation of the EU acquis, reviewing in particular the relevance and added value of EU legislative and non-legislative acts.

3.3.3 In the Committee’s view, the integrated and comprehensive nature of impact assessments is crucial and the Commission must not concentrate solely on competitiveness. It is important to take proper account of the added value of EU action and the cost-benefit analysis should embrace all aspects, including the costs of failure to act.

3.3.4 Impact assessment

3.3.4.1 The Committee does not believe that increasing the impact assessment criteria can cause the Commission not to act or to reject an initiative on the grounds that one or more criteria are not met; nor does it think that the large number of criteria can lead to the bureaucratisation of the decision-making process or to a reluctance to legislate.

3.3.4.2 The Committee is particularly attentive to the ‘Think small first’ principle and the SME Test, especially in its opinion on the Small Business Act (14), but thinks it does not make sense to grant blanket exemptions for microenterprises, whereas it does make sense — because we are dealing with legislative proposals — to take a case-by-case approach based on a scrupulous impact assessment.

3.3.4.3 The Committee agrees that the Commission proposals are accompanied by a rigorous, evidence-based impact assessment, but stresses that it is for the EU legislator to exercise its discretion — by ensuring a balance between, on the one hand, the protection of health, the environment and consumers, and, on the other hand, the economic interests of traders — when pursuing the objective assigned to it by the Treaty of ensuring a high level of health and environmental protection (15).

3.3.4.4 The Committee points out that this exercise could also cover quantification of the regulatory and administrative burden, provided that it: — examines the issue of cost and burdens of regulation not just in terms of its impact on enterprises and competitiveness in general, but also in relation to the benefits of the existing rules for social, environmental, consumer rights, public health and employment matters, — does not reduce or dilute the EU’s policy objectives; — verifies the ‘holes’ in the regulation and initiatives relating to doing business, so that EU has smart, very high-quality standards.

3.3.4.5 The Committee could not agree to be a part of any exercise that sought to quantitatively diminish the EU acquis without measuring in advance all the consequences on social, environmental and consumer protection.

3.3.4.6 As regards the cumulative cost assessment (CCA), the Committee points out that, when the Commission assesses the ex ante or ex post impact of a piece of European legislation, it will have to take on board the fact that these new costs are additional to existing compliance and implementation costs. The Committee accepts that CCAs seek to calculate the financial costs that encumber legislation in this or that sector, but points out that this assessment cannot be such as to partially or totally exempt a sector.

3.3.5 Ex ante assessment

3.3.5.1 The Committee is concerned that the discussion is shifting increasingly upstream of the process, before the co-legislators and the social partners are involved, which risks leaving them in the dark about the terms of a debate that will have already taken place without them.

3.3.6 Ex post assessment

3.3.6.1 The Committee thinks that ex post assessments are at least as important as ex ante assessments. It therefore calls on the Commission to put forward a methodological guide to dealing with sustainable development criteria.

3.3.6.2 The Committee supports a more rigorous ex post assessment of the effects of regulation in the EU policy cycle, with particular reference to the expected impact on growth and employment set out in the impact assessment that accompanies the original legislative proposal.

3.3.6.3 The Committee believes that ex post evaluations should be conducted in a pluralistic way following a reasonable period of time after the deadline for transposition into national law.

3.3.6.4 The Committee considers that ex post assessments are important tools for analysis and that their findings can feed directly into potential impact assessments relating to revision of legislation.

Brussels, 26 May 2016. The President of the European Economic and Social Committee Georges DASSIS

(1) The abbreviation stands for the ‘Regulatory fitness and performance’ programme.

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

(3) COM(2015) 215 final.

(4) Interinstitutional Agreement (IIA) of 15 December 2015, point 7 (http://ec.europa.eu/smart-regulation/better_regulation/documents/iia_blm_final_en.pdf).

(5) Ibid.

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

(7) 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.

(8) Point 31 of the Interinstitutional Agreement.

(9) Article 151 TFEU.

(10) Articles 168 and 169 TFEU.

(11) Article 191 TFEU.

(12) http://www.eesc.europa.eu/resources/docs/eesc-2014-02466-00-01-tcd-tra-en.pdf

(13) http://www.eesc.europa.eu/?i=portal.en.lmo-observatory-impact-study-youth

(14) OJ C 376, 22.12.2011, p. 51.

(15) Judgment of the Court of 8 July 2010, Afton Chemical, C-343/09, ECLI:EU:C:2010:419, paragraph 56.