Opinion of the European Economic and Social Committee on the ‘communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Updating and simplifying the Community acquis’ (COM(2003) 71 final)
Date: 2004-03-31
Institutions: European Economic and Social Committee
Subjects: Community acquis, EU action, administrative formalities, codification of EU law, consolidation of EU law, self-regulation, simplification of legislation

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407TH PLENARY SESSION, 31 MARCH AND 1 APRIL 2004

Opinion of the European Economic and Social Committee on the ‘communication from the
the European Economic and Social
Commission to the Council,

the European Parliament,

Committee and the Committee of the Regions: Updating and simplifying the Community acquis’

(COM(2003) 71 final)

(2004/C 112/02)

On 11 February 2003, the European Commission decided to consult the European Economic and Social
the Treaty establishing the European Community, on the above-
Committee, under Article 262 of
mentioned communication.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on this subject, adopted its opinion on 10 March 2004. The rapporteur was Mr
Retureau.

At its 407th plenary session of 31 March and 1 April 2004 (meeting of 31 March), the European Economic
and Social Committee adopted the following opinion by 88 votes to one, with one abstention.

1. Communication and six-monthly report by the

Commission and Parliament Report

legislative process as those texts which have been incorpo-
rated;

1.1
At its meeting of 13 November 2003 the SMO heard
the Parliament rapporteur, Mr Medina Ortega (1), and Commis-
sion representatives on the Communication on the framework
action ‘Updating and simplifying the Community acquis’ (2), on
which the Commission presented its first six-monthly interim
report this year [COM(2003) 623 final].

1.2
According to this report, the key actions aimed at redu-
cing the volume of legislation and making it simpler, more
accessible and more meaningful are well underway. Measures
undertaken or planned account for 4 % of the current volume
of the acquis.

The Communication and the framework action aim to

1.3
simplify and update the acquis in the following ways:

— consolidation, i.e. incorporating the original instrument and
all subsequent amendments in a single text, with a view to
making it easy to read and up to date; consolidation will
thereafter be systematic whenever new regulations or legis-
lative texts are adopted; consolidation does not create a
new legal instrument, but is a technical task to be carried
out by the Office for Official Publications of the European
Communities (OPOCE);

— re-writing legal texts to enhance consistency and compre-

hensibility without altering the legal situation;

— codification, i.e. uniting scattered texts in a single text and
updating them; codification does create a new legal instru-
ment, replacing previous texts, and must follow the same

(1) FINAL report A5-0443/2002 of 6/12/2002, and second FINAL
report A5-0235/2003 of 17/6/2003 of the EP Committee for Legal
Affairs and the Internal Market on the Commission Communica-
tions on simplifying and improving Community legislation. These
reports clarify in particular the Parliament's requests for Constitu-
tion-building on legislative and enforcement powers and monitoring
powers.

(2) SEC(2003) 165 and attached working document: methodology,
procedures and priorities, and detailed information on definitions
and scheduled work.

— removal of obsolete legislation;

— a more reliable and user-friendly organisation and presenta-

tion of Community law;

— in the long term, simplifying legislation and policies to
replace them with more appropriate and proportionate
instruments;

— possible use of alternative methods of regulation.

The rate at which work is progressing varies according
1.4
to the area of simplification concerned and not all of the
Commission's directorates have been involved as yet. Substan-
tial problems in terms of methodology, personnel and budget
(February –
have delayed the implementation of Phase I
September 2003). The Commission hopes
that Phase II
(October 2003 – March 2004) will advance more quickly and
help make up for lost time, so that the programme as a whole
will be on schedule by the start of Phase III (April 2004 –
December 2004).

2. Comments: Simplification?

If only it were

that

simple …

2.1

A distinction must be made between:

— legislative and regulatory simplification; updating;

— the simplification of administrative documents and proce-

dures and their alignment within the single market.

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This framework action is not concerned only with simplifying
the Community acquis. The simplification of procedures and
documents is, however, just as important for economic players.

The Committee refers
subject (1).

to its previous opinions on this

3. Legislative and regulatory simplification, updating legal

texts

3.1
The Committee welcomes the inter-institutional agree-
ment (IIA) (2) between the Parliament, the Council and the
Commission with regard to simplification procedures that
respect their specific powers and responsibilities; it is probable
that changes will be made to the co-decision procedure in a
future treaty, which should expand the Parliament's role in
drawing up Community legislation and monitoring its imple-
mentation.

3.1.1
The IIA is intended to improve the coordination of the
legislative process between the Parliament and the Council, on
the basis of an indicative timetable for the various stages
leading to the final adoption of each legislative proposal; the
Commission and the Council should participate regularly, at
the highest level, in the discussions of the relevant parliamen-
tary committees.

3.1.2 During discussion on a substantive amendment, the
agreement considers the possibility of carrying out an impact
study before the amendment is adopted (although this could
cause procedural complications and delays).

3.1.3 With regard to alternative methods of regulation, that
is, co-regulation between private partners or private self-regu-
lation, the agreement stipulates that these mechanisms will not
be applicable where ‘fundamental rights or important political
options are at stake or in situations where the rules must be
applied in a uniform fashion in all Member States.’ The
mechanisms must also ‘ensure swift and flexible regulation
which does not affect the principles of competition or the
unity of the internal market.’ The alternative regulation is there-
fore subject to a number of restrictions.

3.1.4
It should be noted that the rules agreed between Euro-
pean social partners (Articles 138 and 139 of the EC Treaty)
should not come into the general category of co-regulation;
this category covers voluntary initiatives between private part-
ners, not implying that the Institutions have adopted any par-
ticular stance. Collective European negotiation is a specific
method of regulation governed by the original law.

(1) OJ C 14 of 16.01.2001. Simplification I, rapporteur Mr Vever.

OJ C 48 of 21.02.2002. Simplification II, rapporteur Mr Walker.
OJ C 125 of 27.05.2002. Simplification III, rapporteur Mr Walker.
OJ C 133 of 06.06.2003. Simplification IV, rapporteur Mr Simpson.
(2) Inter-institutional agreement ‘Better Lawmaking’ between the Parlia-
ment, the Council and the Commission, OJ C 321 of 31/12/2003;
improving the quality of drafting in legislation was examined in the
Inter-institutional agreement of 22/12/1998.

3.1.4.1
The Commission will examine the voluntary regu-
lation initiatives to ensure that they comply with the Treaty
and will notify the Parliament of this and of the representative-
ness of the parties concerned. This seems slightly contradictory,
and it is difficult to see what the consequences might be if the
Parliament considered that the information received was not
satisfactory. The Parliament's only possible step would be to
ask the Commission to take a legislative initiative replacing the
self-regulation. In future, the Parliament would like a formal
call back procedure to be enshrined in the new Constitutional
Treaty,
for Community legislation to replace self-regulation
initiatives.

3.1.5
Finally, the IIA covers the serious problem of trans-
posing Community directives into national law; the institutions
have undertaken to allow a time limit for transposition that is
as short as possible and that does not exceed two years (the
Treaty does not mention transposition periods). The Committee
welcomes this undertaking, but questions its practical
imple-
mentation (to be carried out by the Council) if the Treaty does
not lay down that the transposition time limit stipulated in a
directive must be respected, and that failure to do so will auto-
matically result in an infringement procedure when the dead-
line has been passed.

3.1.6
The Committee would have liked to have had the
opportunity to give its opinion while the interinstitutional
agreement was still being drafted, in so far as it was concerned
and had in the past given opinions on these issues; it could
have brought to the discussion the suggestions of organised
civil society, to which the acquis is principally addressed and
which is directly concerned by simplification, transposition and
alternative methods of regulation.

it must be pointed out

3.2 With regard to the number and nature of texts listed in
that
the Commission's scoreboard,
delays accumulated during Phase I will overflow into Phase II; it
may therefore be optimistic to think that the objective can be
met by 2005. Moreover, a large majority of the texts listed
were produced by the Commission under the committee proce-
dure (3), exercising delegated regulatory powers (although this
concept is not included in the current text of the EU Treaty,
which refers to powers of implementation delegated by the
Council).

The rule of nemo censitur (ignorance of the law is no
3.3
defence) has become a real
legal fiction owing to the huge
number and complexity of directives and regulations, and this
despite welcome codification initiatives that allow for a more
consistent approach in certain areas of European law. Nonethe-
less, diversity in transposing directives at national level can lead
to annoying discrepancies and different procedures. Member
legislators therefore have the important
States and national
responsibility of transposing Community directives logically,
accessibly and clearly, respecting both the letter and the aims
of the legislation: convergence and harmonisation of national
law.

(3) The committee procedure is based on Article 202 of the EU Treaty;
the Parliament demands that it be completely revised, to prevent the
executive going astray

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3.4
Legislation produced under the committee procedure
often seems to be pernickety and lacking transparency. The
Parliament hopes that in future the committee procedure will
focus on implementing and adapting legislation (strict powers
of enforcement) rather than on existing law per se; it feels that
substantive changes to regulations should follow normal legisla-
tive procedure. The EESC would then be consulted on such
changes.

3.5
The Committee has always backed initiatives to simplify,
a posteriori, the Community acquis. However, it also believes
that legislation should be simple and clear from the very begin-
ning and in particular that, before producing a legislative or
regulatory proposal, the Commission should consult all the
interested parties - through questionnaires, ad hoc meetings or
other methods – and the EESC itself, to ensure that all the
issues are given due consideration from the start.

3.5.1
These consultations may also help produce assessments
which are as realistic as possible of the impact and conse-
quences,
It may,
financial and otherwise, of a proposal.
although not solely, be a question of consultation on green
papers or on other preparatory working documents of the
Commission accompanied by a questionnaire. The Committee
is prepared to contribute to the consultative process as repre-
sentative of the social and economic interests of the whole of
civil society and to organise hearings with the organisations
representing all these interests to make its own contribution to
the continuous improvement and simplification of legislation.

3.5.2
The Committee is in favour of cost-benefit analyses as
well as evaluating legislative projects from the point of view of
proportionality and subsidiarity.

3.5.3 However, as regards health-safety or the environment,
analysing the cost-benefit
implications in purely monetary
terms is a rather complex and difficult exercise which in some
cases could prove incomplete, when the legislation's aim is to
prevent disease or protect human lives.

3.5.4
The impact in terms of cost for those to whom the
legislation is addressed, particularly businesses, must also be
evaluated. There is no doubt that Community legislation or
transposing a directive into domestic law can be expensive for
businesses or individuals, especially if it lacks legal precision, or
if the presentation of the draft does not provide a clear and
precise explanation of the exact scope and the aims of the
proposal (1). If the courts are needed to interpret the legislation
or regulation, the end result will be disproportionate expense
for those to whom the law is addressed.

3.5.5
Therefore, the preliminary phase of consultation must
be primarily directed at those bodies which are truly represen-
tative of the interests of those to whom the law is principally
addressed, including professionals and qualified experts; but it
must
and Social
Committee or the Committee of the Regions.

the European Economic

also consult

3.6
The EESC also very much hopes to be regularly involved
in ex post impact assessments of Community legislation, and in
the review of the periodic reports required by the legislation, so
that it may express the views of those who use and practise the
law on the effectiveness of these rules;
the law is
weakened if it is not useful, effective and correctly applied or if
it must be interpreted by the courts before being applied.

indeed,

3.7
Follow-up, which can be difficult, consists of assessing
the real impact of legislation - whether direct (regulations) or
indirect (transposition of directives) - at national, regional and
local level.

3.8
The EESC has suggested setting up an independent Euro-
pean body to follow-up and promote regulatory and adminis-
trative simplification, and a provision of this nature should be
considered as soon as possible. At all events, simplification
should be extended as far as possible to all areas of the acquis,
and this is far from being achieved. This is all the more urgent
because simplification will support and accelerate the effective
implementation of the acquis in the new Member States, and
should spur on those who are lagging behind to clear their
backlog.

3.8.1
Environmental and safety legislation in relation to busi-
ness activities might be a particularly promising area for simpli-
fication. In the long run, the issue could be recast more consis-
tently and accessibly in a European Environment code. The
Committee notes that some private publishers periodically
produce unofficial European codes which bring together and
gives glosses on certain subjects, such as a European social
code or a business code, illustrated and explained by case-law
and legal commentators. These initiatives prove the usefulness
of codifying or reformulating the acquis for users and profes-
sionals in Community law.

3.9
Simplification is directly linked to the principle of good
governance (2); it brings to the fore the issues of proportionality
and subsidiarity which have to be resolved first. Depending on
texts in question, a procedure for assessing each
the legal
specific stage (conception, drafting, adoption and publication)
and for monitoring implementation should be introduced. This
procedure can only enhance the legal certainty of those to
whom the law is addressed and their respect for it.

(1) For example, the presentation of the draft directive on computer-
implemented inventions gave rise to total confusion as to the exact
nature, scope and objectives of the draft submitted by the Commis-
sion.

(2) See the 2001 white paper on governance, and the better legislation
action plan drawn up by a Council working group (Mandelkern
Group on better legislation).

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3.10
It is clear that the users of Community law, which
today accounts for a significant proportion if not most of the
legal texts applicable in the Member States, are calling for
wording that is less complex, devoid of ambiguity and easier to
transpose and implement. The proliferation of legislation has
an adverse effect on businesses, in particular smaller enterprises
that lack their own legal services, and consumers, who seek
certainty regarding their rights and the remedies open to them.

3.13.3
The Committee suggests to the Commission that a
review should be carried out of how those to whom legislation
is addressed and Community law professionals are best
informed in practice, so as to determine whether the current
means of conveying information are used effectively and
whether or not they are sufficient, with a view to developing a
better strategy for communication and training on Community
law.

Single market regulation must be able to adapt

to
3.11
change while at the same time offering social and economic
players sufficient legal certainty and security. Such regulation
must be warranted and appropriate, and must not create unne-
cessary difficulties or obstacles. However, simplification must
not be confused with deregulation (1). Codification is a form of
simplification that concerns the consistency and comprehensi-
bility of applicable law, but does not make substantive changes.
Simplification and periodic evaluation of the effectiveness of
the acquis could also, where appropriate, lead to a reformula-
tion of the law, through amendments or a draft replacement if
necessary.

4. Administrative procedures and documents

4.1
It should be emphasised that many regulations lay down
the procedures to follow and provide specimens of the docu-
ments to be used. The Committee encourages this method
which simplifies administrative formalities in the single market
and reduces transaction costs.

3.12
EU harmonisation and Community texts have already
simplified the single market, preventing a proliferation of
national texts and thereby making it easier for all European
players to know the law.

4.2
As regards administrative documents and procedures
currently in use, harmonisation is becoming a serious problem
for operators, when each country has different requirements.
There is much scope for harmonisation here. This will genu-
inely simplify trade and must be exploited to the full.

3.13
Information and its channels are important in acquiring
knowledge about applicable law and changes to it, and should
therefore be targeted (limitations of simply publishing in offi-
cial journals, the importance of possible conduits or alternative
means). The websites of the Community institutions provide
information for
from the preliminary stages
onwards, and the legislation pages of the Parliament's website
give clear information about how dossiers are progressing.
Finally, Community brochures for the general public also play
a useful role, as do press releases, which are generally well
written, although sometimes badly explained to readers by
journalists.

the public

3.13.1
(e.g. national Bars) publish relevant
tions
members, as well as explanations and advice.

A number of professional organisations and associa-
their

texts

for

4.3 However, if the role of the committee procedure is also
to implement legislation, it should contribute towards simpli-
fying and harmonising administrative documents and proce-
dures, by taking into consideration the opinions of legal profes-
sionals and users.

4.4
The use of information and communication technologies
(ICT) in e-administration is also an instrument for good govern-
ance which must be rapidly promoted. Its application in the
area of customs, as envisaged by the Commission, would be a
good way of simplifying procedures and documents (e.g. one-
stop-shop, standard documents to avoid delays at Community
borders). This clearly calls for consultations with the interested
parties, industries, customs personnel and carriers in order to
avoid pointless formalities, ensure the legal security of opera-
tions and carry out proper checks. Such checks must not
hinder freedom of movement and must respect business confi-
dentiality, providing there is no evidence of fraud or strong
suspicions of fraud.

Information is also often distributed by Member
3.13.2
States or teachers. University textbooks,
legal commentators
and student exchanges all contribute to the training of lawyers
and future European legislators.

(1) This was argued clearly in the above mentioned Committee

opinions.

4.5 While the Committee is very much in favour of devel-
oping e-administration, providing it is accompanied by proce-
dural and administrative simplification,
it wishes to reiterate
the fundamental principles that govern how it works. Strict
rules governing confidentiality, the length of time that authori-
ties can keep certain documents, and the anonymisation of data
for statistical or communication purposes must be respected.

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5. Co-regulation and self-regulation (1)

Until now,

5.1
the possibilities have not been properly
explored for less detailed and less finicky regulation, offering
scope for co-regulation and self-regulation. The role of those to
whom legislation is addressed must be developed, as this will
make for easier and more widespread implementation. The
EESC's data base PRISM (Progress Report on Initiatives in the
Single Market) provides specific examples of what could be
called ‘contractual regulation’ and ‘unilateral regulation’ respec-
tively, which also require appropriate monitoring and assess-
ment procedures (e.g. labels, certificates, private or public inde-
pendent checks). Mutual recognition, consumer relations, etc.
open the way for effective private regulation.

5.2 With regard to Community social and labour law, collec-
tive bargaining on working and employment conditions and
social dialogue allow European employers' and employees'
organisations to have a say in labour relations and Community
social law.

5.2.1 Negotiated texts must, however, be the subject of a
Commission initiative and Council decision if
they are to
become legislation. The Parliament is not really consulted in
this procedure, since any amendments it might make are not
taken into consideration.

5.2.2 However, if the methods of self-regulation did not give
acceptable or adequate results, or if necessary, the legislator
could always, under existing procedures or new procedures
from the new Treaty, such as the call back procedure, trans-
form self-regulation or co-regulation into legislation. The
Committee feels however that prudence should be exercised in
this matter, particularly as regards collective contracts between
European social partners, whose wishes and provisions should
in principle be respected.

5.3
Therefore, while public regulation (legislation) may
replace private regulation (contractual and unilateral regulation,
non-governmental monitoring bodies, out-of-court dispute
settlement …), such legislative intervention must respond to
solid political reasons or clear public requirements. In a demo-
cratic political framework, private regulation must generally
further develop or apply public regulation, even replacing it in
some areas, including unwritten rules originating in common
law or rules of procedure which the legislator and public

Brussels, 31 March 2004.

authority wish, explicitly or implicitly, to ensure are respected,
e.g. the ethical codes of certain professions.

5.4 When quasi-judicial provisions are laid down in private
rules, an appeal against a duly motivated decision by the
private body (e.g. disciplinary board, admission board for a
professional body) must always be admissible before a public
court or, if necessary, an arbitration body agreed by the parties.

6. Final considerations

The EESC will

follow the Commission's six-monthly
6.1
It supports the
interim reports with considerable attention.
initiative and the framework action to simplify the Community
acquis, and hopes that this simplification will spread rapidly to
other areas of the acquis to facilitate and promote its practical
application, both in existing and new member countries.

6.2
Through its consultative opinions, the EESC wishes to
have a greater role in drawing up Community law, which
presupposes that it plays a part in proceedings at a much
earlier stage than is usually the case at the moment. It also
wishes to participate actively in impact and follow-up assess-
ments and in actions to promote simplification,
in order to
contribute to the greater accessibility and effectiveness of Com-
munity law in the enlarged Europe. These requests of course
follow the principles of democracy and good governance, as
well as those of bringing citizens closer to the institutions and
legislation of the European Union.

6.3
Finally, the Committee welcomes the inter-institutional
agreement on Better Lawmaking, adopted by the European
Parliament, the Council and the Commission on 16 December
2003, which lays out the conditions for better simplification of
Community legislation and in particular defines and frames,
while encouraging, use of self-regulation and co-regulation by
socio-occupational players. This agreement corresponds to the
Committee's wishes in this area expressed in September 2000,
when it adopted its own code of conduct and invited the insti-
tutions to follow its example. The Committee will contribute to
the correct functioning of the agreement and will continue to
promote the use of self-regulation and co-regulation, which are
the subject of an information report being prepared by the
Committee.

The President

of the European Economic and Social Committee

Roger BRIESCH

(1) This section deliberately does not go into detail, because Mr Vever

is preparing a specific opinion on this topic.