Communication from the Commission - Simplifying and improving the regulatory environment.
Date: 2001-12-05
Institutions: European Commission
Subjects: EU law, drafting of EU law, simplification of legislation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.12.2001
COM (2001) 726 final

COMMUNICATION FROM THE COMMISSION

Simplifying and improving the regulatory environment

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COMMUNICATION FROM THE COMMISSION

Simplifying and improving the regulatory environment

INTRODUCTION

A concern of
some antiquity

1.
The Edinburgh European Council of December 1992 made the task of
simplifying and improving the regulatory environment one of the Community’s main
priorities.

Nine years on, it has to be said that the results still fall short of the objectives,
due to the complexity of the task and the lack of real political support. As a result,
most of the work still remains to be done. This view is shared by the two arms of
the legislative authority, a point which has been stressed in any number of debates
in the European Parliament over the past two years.

The need to
act

So regulatory improvement and simplification remain an absolute necessity for the
future of the European Union. The reasons were set out in the White Paper on
European Governance, which the Commission adopted on 25 July 2001:

• The need to strengthen the democratic legitimacy of the European project means
that the EU has to work towards legislation which is better, simpler, more
responsive to the real problems, and more accessible. This is a sine qua non if EU
action is to be better understood, better applied and more readily accepted by the
people of Europe.

• The EU’s economic and social development requires, in accordance with the
strategy formulated at
the Lisbon European Council, a clear and effective
regulatory framework to protect the interests of the people and of business
competitiveness by enhancing legal certainty and cutting the cost of poor
regulatory work1.

• With enlargement looming large, there is a need for regulatory arrangements to
be made simpler and better if the acquis is to be fully applied in an enlarged
Europe which still has the requisite freedom of action.

Recent
moves

2.
The need for the European institutions and the Member States to get
moving has been expressed on various occasions over the past two years at the
highest level:

• The conclusions of the Lisbon European Council, subsequently confirmed and
extended by the European Councils of Stockholm and Göteborg, call for the

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According to research done by EOS/Gallup, European firms say that they are excessively shackled by
the poor quality of regulation. They put the cost of regulation at 4% of Community GDP. 15% of this
cost, or 0.6% of Community GDP, could be avoided by better regulation, bringing a saving of some
EUR 50 billion.

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formulation “by the end of 2001” of a “strategy for further coordinated action
to simplify the regulatory environment”2.

• European Parliament debates in 1999 and 2000 on the evaluation of the SLIM and
BEST programmes brought out the need to allocate, at all levels, the requisite
resources to generate good, simple and comprehensible legislation.

• The High-level advisory group, set up by the Ministers for the national civil
services in November 2000, has delivered important and high-quality input on all
aspects of this problem. The report of the Group, chaired by Mr Mandelkern,
contains an in-depth analysis of good practices for ensuring quality regulation
across the whole of the legislative cycle. It also contains a highly significant
number of specific recommendations for improving the quality of legislative
instruments (at both national and Community level), though the responsibility of
the Member States is not sufficiently emphasised. The quality of national and
Community legislation would be improved if the Member States and the
Community institutions — each acting within its own sphere — were to
implement the report’s recommendations. The Commission feels, however, that
implementation of these recommendations should take account of the specific
features of the decision-making process within the Community, and of the specific
competences of each institution3.

The Commission is convinced that no progress can be made without changes to the
way all the players go about their tasks, whether they be European institutions or
national authorities. Effecting a reform of this nature would not require any further
amendments to the treaties. However,
that an
interinstitutional discussion on simplifying and improving the regulatory
environment is necessary and should serve to formulate the political framework for
a common strategy.

the Commission does feel

The Commission has already presented an interim report

to the
3.
Stockholm European Council4, taking stock of the situation and suggesting certain
guiding principles and possible courses of action. In addition, the White Paper on
European Governance5, which the Commission adopted on 25 July 2001, proposes
guidelines; with the opportunity for wide-ranging consultation up to March 2002.
the European Parliament’s first
The Commission also notes with great

interest

Commission
initiatives

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3

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Conclusions of the Lisbon European Council of 23 and 24 March 2000: “set out, by 2001, a strategy for
further coordinated action to simplify the regulatory environment, including the performance of public
administration, at both national and Community level”. Conclusions of the Stockholm European
Council of 23 and 24 March 2001: "The Commission, in cooperation with all relevant bodies, will
present a strategy for regulatory simplification and quality before the end of 2001." Conclusions of the
Göteborg European Council of 15 and 16 June 2001: "... the Commission will include in its action plan
for better regulation to be presented to the Laeken European Council mechanisms to ensure that all
major policy proposals include a sustainability impact assessment covering their potential economic,
social and environmental consequences."
To take an example: some of the recommendations made by the Mandelkern Group might sit uneasily
with certain practices used by the Community legislator. In many cases, a regulatory instrument has to
be adopted on the express condition that a new instrument be proposed to cover other aspects.
COM (2001) 130.
COM (2001) 428.

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Elements of a
coordinated
strategy

opinion on the White Paper6. The important thing is that these elements should form
part of a coordinated and operational strategy, a strategy which would mean:

Four
priority
measures

• Having a common definition of objectives: as far as the Commission is
concerned, this would mean improving the practices and current provisions of
regulatory activity,
the legislative cycle, and simplifying existing
legislation, in both qualitative and quantitative terms. The aim is not to deregulate
or to interfere with the executive’s or the legislator’s prerogatives, and certainly
not to restrict the Community’s freedom of action.

throughout

• Getting strong and real political support from the Member States and the
institutions, reflected in human and budgetary resources, new working methods
and a new working culture.

• Pinpointing specific, realistic and inspirational measures which can give a

clear political signal to the people of Europe.

It follows that the way in which the principles and content of this strategy are applied
should be a matter for interinstitutional dialogue between the Commission,
the
European Parliament and the Council.

4.
The point of the Commission’s communication, then, is to consult the other
institutions and the Member States on this strategy and on what the Commission
sees as the most pressing concerns:

(1)

(2)

(3)

(4)

simplifying and improving the acquis communautaire;

well prepared and more appropriate legislation;

a new culture within the institutions;

better transposition and application of Community law7.

On the strength of reactions from the Council and the European Parliament to this
communication, and bearing in mind the consultation process initiated by the White
Paper on Governance, which runs until March 2002, the Commission will propose
a detailed plan of action for simplifying and improving the regulatory
environment in June 2002.

1.

SIMPLIFYING AND IMPROVING THE ACQUIS COMMUNAUTAIRE

The first thing is to divest ourselves of the current political contradiction: the acquis
communautaire is highly regarded for its basic raft of rights and integrating
provisions and, at
its complexity of access,
comprehension and application.

the same time, denigrated for

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Resolution of the European Parliament, contained in Mrs Kaufmann’s report, adopted on 28 November
2001.
The Commission would point out that it also proposed other measures in its interim report to the
Stockholm European Council.

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Simplifying the
acquis
communautaire

A reduction of at
east 25% by
January 2005

As it currently stands, the acquis communautaire extends to more than 80 000 pages,
making it clearly cumbersome for economic operators and the man in the street alike.
Any difficulties are bound to increase with the arrival of new Member States which
will have to digest this corpus of rules and regulations. Simplifying and reducing
the volume of texts is clearly essential, as is the need for a quantified objective
and a clear political deadline.

There are various ways8 of doing this, and a number of one-off measures have been
taken over recent years (e.g. the SLIM initiative). It has to be said, though, that
results remain extremely limited. The institutions and the Member States must draw
the necessary conclusions and set up a campaign to simplify legislation and make it
coherent, effective and coordinated.

The Commission proposes that the institutions together formulate an integrated
programme for simplifying the acquis communautaire. This aim could be
achieved by reducing the number of acts, either using the codification method or
recasting a set of succeeding regulations, and by reducing the total number of pages,
using the same methods and by simplifying the substance of the regulatory
instrument9. This programme, which would supplement the codification programme
already adopted by the Commission, could have the effect of considerably reducing
the volume of existing texts, if possible by at least 25%, by the end of the present
Commission’s term of office in January 2005. On conclusion of this first stage in the
process, the institutions would decide on the arrangements for the second phase in
the light of their experience in the first.

All concerned need to be aware that a plan of this scale must have the requisite
resources and lead to the formulation of new working methods10.

Withdraw a
hundred or so
regulatory
proposals pre-
dating 1999

At the same time, it is essential to rid the legislative system of proposals which are
no longer of any topical interest. To give a strong political signal, the Commission
intends to withdraw a hundred or so pending proposals dating from before 1999
and which are no longer of topical interest.

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Consolidation means grouping together in a single non-binding text, for reasons purely of information,
the current provisions of a given regulatory instrument which are spread among the first legal act and
subsequent amending acts. Codification means the adoption of a new legal instrument which brings
together, in a single text, but without changing the substance, a previous instrument and its successive
amendments, with the new instrument replacing the old one and repealing it. An interinstitutional
agreement setting up a fast-track method of work with a view to the official codification of legislative
texts was concluded on 20 December 1994. Recasting means adopting a single legal act which makes
the required substantive changes, codifies them with provisions remaining unchanged from the previous
act, and repeals the previous act. The inter-institutional agreement for a more structured use of the
recasting technique for legal acts was recently finalised and will make it easier to apply this method.
Simplification means seeking, with the benefit of hindsight, to make the substance of a piece of
regulation simpler and more appropriate to the users' requirements (the SLIM method is the best
example of this).
In accordance with the principles laid down in the inter-institutional agreement on recasting adopted by
the institutions in 2001.
Cf. Part 3 of this document.

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2.

LEGISLATION WHICH IS BETTER PREPARED AND MORE APPROPRIATE

Community law is often criticised for the alleged inappropriateness of solutions
proposed by the Commission and subsequently adopted by the European Parliament
and the Council.

Improve the
quality of
Community law

The Commission feels that it has a responsibility to make sure that the quality of
Community law is steadily improving11. This is a basic element
in terms of
strengthening the Community’s democratic structures.

Against this background, and without wishing to prejudice the outcome of this
consultation, the Commission is proposing two priority measures.

Strengthen the
preparation of
egislative
proposals…

… by more in-
depth
consultations.

A – Strengthening consultation and prior impact analysis

Each proposal for a legal act constitutes a commitment on the part of the
Commission. Having regard to the wider Community interest, the Commission first
of all conducts a prior evaluation of the problem to assess the expediency of action
at Community level. It then conducts consultations with the parties concerned and
does impact analyses with a view to assessing which is the most effective way of
meeting the desired objectives, which is the most appropriate instrument and,
where appropriate, what would be the cost and benefits. It might be that, at this
stage, Community action is not necessary.

To give the people of Europe more effective and more transparent legislation, in
accordance with the Protocol on the application of the principles of subsidiarity and
proportionality12, the Commission intends to improve these practices.

1) Consultations

The Commission already has access to appropriate instruments (Green Papers, White
Papers, consultations of the social partners, forums and, increasingly, interactive
Internet-based consultation processes, etc.) and a wide range of bodies (e.g. groups
of experts and advisory committees) for consultation purposes. It is also committed
to publishing a full list as soon as possible in the interests of transparency. The
Commission also takes into account, wherever possible,
the opinions of the
Economic and Social Committee and the Committee of the Regions. This is a
unique and invaluable resource for the Commission, and any improvement in
the way it works will provide additional guarantees for the public at large.

We have to go further along this path. The Commission now intends to intensify
these consultations,
targeting representatives of civil society and using the
Economic and Social Committee and the Committee of the Regions, and
developing access for the general public to databases so as to encourage online
consultation (via Eur-Lex et Pre-Lex)13.

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12

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In accordance with the 1999 inter-institutional agreement on common guidelines for the drafting of
Community legislation, published in OJ C73 of 17.03.1999.
Cf. point 9 of the Protocol, appended to the Amsterdam Treaty.
Eur-Lex is the interinstitutional database which contains current legislation. Pre-Lex is a special website
containing part of legislation currently in preparation. It might be worth considering making Eur-Lex

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2) Impact analysis

The Commission already undertakes pre-assessments of its draft proposals, so as to
decide whether or not to take action at EU level.

Where action proves necessary, the pre-assessment will also help to decide which
proposals have to be subjected to detailed impact analysis. This decision is one
for the Commission when it adopts its programme of work.

Against this background, and in accordance with the mandate handed down by the
Göteborg European Council, the Commission intends to establish, by the end of
2002, a coherent method for impact analysis to ensure that all major proposals
in a form which is proportional and adapted to their content, a
contain,
sustainability
and
environmental consequences. It intends to present a Communication on this subject
as soon as possible. The system will be based on an evaluation of the costs and
benefits, stressing the economic, social and environmental impacts. The impact
assessment will define the problem which needs to be addressed, and will analyse the
available options, their respective impact, and how the policy will be implemented.

assessment

economic,

covering

impact

social

their

Harmonised
sustainability
impact analyses

Pursuant to the recommendations made by the Mandelkern group, the Commission
expects the Member States to ensure that, whenever a national regulatory impact
assessment
the results of that assessment are notified to the
Commission and to the other Member States along with the details of the regulatory
measures themselves.

is carried out,

Setting up these practices is a difficult but necessary business, but must not make
the legislative cycle excessively protracted; nor must it constitute an obstacle to
the European Union’s freedom of action14. The Commission’s view is that a
regulatory instrument which is better prepared and which is based on sound
consultations and impact analyses will lead to the measure being adopted more
readily and rapidly by the European Parliament and the Council.

B – Making better use of the available regulatory instruments

Make better use
of existing
legislative
instruments

In the White Paper on European Governance, which was adopted in July 2001,
the Commission said it wanted to focus joint discussion on ways of adapting the
Community’s legislative instruments and other means of action.

It is clear that the range of instruments has to be clarified if we want to achieve
greater effectiveness. The Commission will conform to the Treaty provisions on the
choice of instrument where this is clearly laid down.

The available range of instruments is already wide: regulations, directives, decisions,
framework decisions, agreements and recommendations. The open method of

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into an access portal for all legislative sites. In addition, Eur-Lex already contains Celex and details of
national transposition measures.
Clearly, these detailed impact analyses will not relate to urgent proposals, or to minor or ongoing
management proposals, or where the intention is simply to amend the text or bring it up to date, or to
acts required by the Treaty itself.

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coordination and agreements between the social partners are complementary
possibilities.

The distinction between regulations and directives has to be more clearly
understood: a regulation must be used only for action which requires uniformity of
application in the Member States, while directives must revert, in all other cases, to
being an instrument which lays down a legal framework and sets out the objectives,
in accordance with the Treaty and the Protocol on the application of the principles of
subsidiarity and proportionality15.

With a view to making more use of less detailed directives, the Commission should,
in appropriate cases, be given more executive powers. At the same time, there
should be a review of the existing comitology procedures and of the arrangements
whereby the legislator vets executive instruments.

In addition, all the possibilities offered by existing types of action should be used to
the Treaty’s objectives: regulatory action, coordination, financial support,
meet
binding or non-binding measures. To meet certain new requirements in specific
sectors, some leeway should sometimes be given to the interested parties themselves
(e.g. economic operators, social partners, other players) so as to give them the
responsibility and avoid having excessively cumbersome legislation, in accordance
with the above-mentioned principles and with the dictates of transparency and
defence of the general interest.

Co-regulation: a
Community
framework
fleshed out by the
interested parties

Co-regulation is a way of achieving flexibility and greater effectiveness. It creates
a link between binding legislative or regulatory measures (forming the principal legal
and policy framework), on the one hand, and action taken by the parties most
interested in applying the particular measure, on the other. It should also be vested
with Community sanctions as a guarantee of continuity of the law and consistency of
the legislation.

Co-regulation is not an attempt to by-pass the legislator’s prerogatives, nor to
duck out of regulation. It will always be up to the legislator to decide to what extent
recourse should be had to co-regulation. The practical arrangements for this will
emerge from the interinstitutional dialogue. There is provision under the Treaty for
agreements between social partners at European level, which can be implemented
either by a binding Council act or by dint of procedures and practices proper to the
social partners and the Member States (see Article 138 and 139 of the Treaty).
Creating Community norms by way of such agreements pays more heed to the
principles of proportionality and subsidiarity.

the Commission will,

in appropriate cases, use these various
It follows that
instruments and methods in proposing a solution which is geared precisely — and
better — to a given situation. The Commission notes that self-regulation, subject to
clearly defined conditions, may also be a way of achieving the Treaty’s objectives
and avoiding excessive regulation. The White Paper on European Governance
proposed collective discussion of a general framework for such arrangements. On
this point, the Commission awaits the reaction of the other institutions and of the
Member States.

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Cf. point 6 of the Protocol on the application of the principles of subsidiarity and proportionality.

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3.

A NEW CULTURE WITHIN THE INSTITUTIONS

An internal
legislative
network within
the Commission

It has become clear since 1992 that regulatory simplification is not something that
can be simply decreed. It requires not just the requisite human and budgetary
resources, but also changes to the existing structures, with a view to establishing
a new administrative and political culture16.

Any such change will require a collective effort from the Commission, the other
institutions and the Member States.

The Commission intends to set an example by creating an internal legislative
network to promote good practice and apply the principles of legislative quality
which will emerge from the interinstitutional dialogue.

The network should make it possible to detect at an earlier stage in the process any
initiative which does not accord with the principles of
subsidiarity and
proportionality. It will be up to the Secretariat General to run and coordinate this
network and to alert the Commission to any proposals which might run counter to the
principles of subsidiarity and proportionality. The Commission reserves the right to
withdraw its proposals should the compromises envisaged by the Council or the
European Parliament
legislative complexity which the
Commission feels is not compatible with these principles.

introduce a level of

Interinstitutional
networking
essential

Since Community law is a matter for the European Parliament and the Council as
well as the Commission, it would be necessary to set up a parallel interinstitutional
network, under the aegis of the Commission, responsible for monitoring the
legislative quality of texts.

A new culture means new working methods. For instance, it would not be right to
make the work of codification, recasting or simplification a task simply for the
experts who helped adopt the acts in the first place. For that reason, it would
certainly be a good idea to set up a special ad hoc group within the Council.
Similarly, the Council and the European Parliament should use fast-track procedures
to adopt simplified texts.

4.

IMPROVED TRANSPOSITION AND APPLICATION OF COMMUNITY LAW

In the main, a
responsibility of
the Member
States

More faithful
transposition

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The Member States, which are responsible for applying 90% of European law,
also have a political responsibility in terms of the quality of the regulatory
environment, in that they have to apply and/or transpose the Community’s legal
instruments. This is an essential task, and it needs strengthening.

The Commission, for its part, checks on whether the law is being properly transposed
and also has to check, alongside the Member States, what concrete effects the
legislation is having.

The Commission would therefore like to see the Member States commit
themselves to ensuring that Community acts are transposed into their national

The Commission reserves the right to state in the 2003 APS what resources it needs to do the work
described in the plan.

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legislation correctly and within the set deadlines, with a view to achieving the
objectives set down by the Lisbon European Council. Procedures for notifying
these transposing measures to the Commission will also have to be modernised and
speeded up.

Correspondents in
the Member States

By the same token, each Member State should appoint transposition/application
correspondents to ensure that information passes correctly between the Commission
and the national administrations. This structure should also generate better
cooperation and produce more feedback for assessing the usefulness and
effectiveness of a particular item of legislation.

Finally, without prejudice to its role as guardian of the Treaties, the Commission
should, along with the Member States, look into the possibility of a common
approach to the monitoring and practical application of Community legislation.
This would require a set of objectives, principles and common criteria, arrangements
for administrative cooperation, exchanges of information, mutual assistance and
coordinated surveillance of the sector concerned.

Conclusion

For an
interinstitutional
strategy in 2002

Simplifying and improving the regulatory environment will require concerted action
on the part of the institutions and the Member States. So far, very little has been
achieved. The Commission would urge all interested parties to do their utmost
to formulate a common strategy which will serve Community lawmaking, and
ultimately the people of Europe.

Depending on reactions to this document, the Commission proposes launching joint
discussions as quickly as possible with the European Parliament and the Council
with a view to defining the principles and content of this strategy, the aim being to
have an action plan by June 2002, and possibly an inter-institutional agreement.

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