Opinion of the European Economic and Social Committee on ‘Future proof legislation’ (exploratory opinion)
Date: 2016-09-21
Institutions: European Economic and Social Committee
Subjects: drafting of EU law, innovation, principle of proportionality, principle of subsidiarity, simplification of legislation








C_2016487EN.01005101.xml










28.12.2016   


EN


Official Journal of the European Union


C 487/51





Opinion of the European Economic and Social Committee on ‘Future proof legislation’
(exploratory opinion)
(2016/C 487/07)






Rapporteur:



Christian MOOS





Co-rapporteur:



Denis MEYNENT











Referral


Slovak presidency, 14.3.2016




Legal basis


Article 304 of the Treaty on the Functioning of the European Union




Section responsible


Subcommittee on Future proof legislation




Adoption by the subcommittee


7.9.2016




Adopted at plenary


21.9.2016




Plenary session No


519




Outcome of vote
(for/against/abstentions)


213/2/5




1.   Conclusions and recommendations









1.1.


The Slovak presidency has asked the EESC to give its opinion on ‘future proof legislation’. This new concept comes in the wake of other specific requests addressed to the Commission and the co-legislators with the aim of ensuring that legislation is more in line, in particular, with EU competitiveness and takes account of the specific nature of SMEs and micro-enterprises, aspects that the EESC has commented on several times before.












1.2.


The EESC notes that efforts are being made to improve the quality of European legislation and that these efforts should be stepped up.












1.3.


The EESC believes that high-quality, simple, comprehensible and consistent legislation ‘is an essential factor in integration, not a burden or cost to be reduced’, as it is key to generating sustainable economic growth, boosting innovation, making companies — including SMEs — more competitive and creating more high-quality jobs.












1.4.


The ‘innovation principle’, as defined in chapter 2, is also in line with the thinking behind the REFIT programme. The EESC recalls the tenets of the ‘Better regulation’ programme, which have already been defined and applied, and stresses that this new principle must not take precedence over them; it must be applied intelligently and carefully, particularly with regard to social protection and the environment, health and consumer protection.












1.5.


The EESC suggests that the potential of the ‘innovation principle’ should continue to be studied by sharing best practices.












1.6.


Innovation is one of the conditions required for sustainable growth in Europe. A legislative framework favourable to innovation is needed, although there is no straightforward relationship between innovation and the regulatory framework; administrative measures, tax measures, an investment plan and other such initiatives are needed in addition to legislative measures in order to support and develop innovation.












1.7.


European legislation should always aim to create a legal framework that enables businesses and citizens to benefit from the advantages of the internal market and to avoid unnecessary administrative burdens. European legislation is future proof if it is proactive and forward-looking; the EESC is in favour of legislation that can adapt. It considers that future proof legislation must be based on the Community method.












1.8.


It is essential to avoid needless regulatory costs. Regulatory costs must be proportional to the benefits they generate.












1.9.


The EESC believes that all legislation must be the outcome of public political discussions. The role of civil society and of the social partners is very important here, and an appropriate framework for quality social and civic dialogue is needed, with due regard given to the views expressed.












1.10.


The EESC notes that it is not only the content of legislation but the legislative process itself that must be future proof, so as to meet the needs of businesses and citizens.












1.11.


Each piece of future proof legislation must remain true to its original objective — always in compliance with the objectives set out in the Treaties — and be able to be enacted flexibly in national legislation. It should not go into too much detail, instead limiting itself to providing a framework, which should be properly transposed at national level in a timely manner, after consulting the social partners and representative civil society organisations and giving due regard to their positions. The use of sunset clauses should be further analysed.












1.12.


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.












1.13.


Civil society should serve as a sounding board for future proof legislation. The EESC is well placed to act as intermediary between the legislator and civil society organisations and the social partners.












1.14.


The EESC stresses the importance at national and European levels of impact assessments, including the SME test, for all legislative or non-legislative measures, so that political decisions are informed and based on specific data. Impact assessments are there to help political decision-making: they cannot replace it.












1.15.


The EESC asks that it be consulted when the Commission, the Parliament and the Council come to an agreement on the withdrawal of legislative proposals as it is important to assess the material and immaterial consequences of such withdrawals.












1.16.


The EESC is of the view that the Council must become more transparent and that a future reform of the treaties should attempt to improve the consistency of the Council’s decisions. The rights of the Parliament must be strengthened.












1.17.


The EESC considers it necessary to make more use of enhanced cooperation while not allowing this to weaken the institutions.












1.18.


The EESC stresses the importance of its participation in the consultative processes that need to accompany the deepening of the EMU. The European Parliament, as well as the consultative bodies, need to be better integrated into the European Semester cycle.












1.19.


The EESC supports a trilogue fast-track legislative procedure in emergencies only.




2.   General comments









2.1.


The Slovak presidency has asked the EESC to give its opinion on future proof legislation and to consider how the EU can improve legislation so that it is better tailored to the needs of the economy and society at this time of rapid change. The presidency asked how regulatory costs for businesses could be kept at a reasonable level without neglecting the objectives of the treaties.












2.2.


European legislation is future proof if it is proactive and forward-looking and provides the maximum legal clarity and certainty. The EESC is therefore in favour of legislation that can adapt and that is also able to look ahead.












2.3.


Regulations are also necessary if the political objectives of the treaties are to be met. The European Union is a social market economy and some rules therefore entail costs for businesses, such as in the field of health and safety at work. Social peace in Europe is safeguarded by striking a balance between economic and social objectives. Future proof legislation must respect this balance and promote economic, social and territorial cohesion, as well as solidarity among Member States.












2.4.


The EESC supports and emphasises the need to strengthen the legitimacy of European legislation through better regulation, but it stresses that understanding what is future proof must not lead to a depoliticisation of the legislative process. It believes that all legislation must be the outcome of political discussions. In this regard, the major role of civil society and the social partners within the social dialogue must be taken into account.












2.5.


European legislation is future proof if citizens see it as legitimate. It must be founded in representation, consensus and participation and be able to bring outcomes or solutions to collective problems.












2.6.


So that European policies can deliver better results, the EESC believes that the European legislative process should be reviewed within the framework of the Treaty of Lisbon and, if necessary, as part of a new treaty. It is indeed precisely this aspect of future proof legislation that the EESC wishes to highlight, namely its quality, legitimacy, transparency and inclusiveness.












2.7.


The EESC notes that it is not only the content of legislation but the legislative process itself that must be future proof, so as to meet the needs of businesses and citizens. In other words, it boils down to the question of democracy at European level.












2.8.


The political will of elected representatives and the choices they make are therefore crucial. Each piece of legislation can be analysed in the light of its capacity to translate this political will into reality and can be judged on its democratic integrity. The EESC therefore suggests studying not only the content of legislation but also the legislative process.












2.9.


This new concept of ‘future proof legislation’ is linked to other initiatives that aim to improve legislation. The EESC has expressed its views on the ‘Better regulation’ programme and the REFIT programme (1) in several opinions (2). It wishes to mention once again its opinion on a proactive approach to legislation (3).












2.10.


The implementation of the ‘Better regulation’ and REFIT programmes — REFIT having been launched by the European Commission in 2012 in order to measure the administrative burden of regulatory provisions in force and, where applicable, to eliminate them — are key priorities of the presidency trio (the Netherlands, Slovakia and Malta) from January 2016 to June 2017. Obviously the idea of future proof legislation falls naturally within the scope of these programmes.












2.11.


The EESC notes that efforts are being made to improve the quality of European legislation and emphasises the need for these efforts to be stepped up. The EESC has noted the Commission’s communication of 19 May 2015 (4) and the Interinstitutional Agreement on Better Law-Making of 13 April 2016 (5), while observing that it was not involved with the latter.












2.12.


The EESC believes that high quality, simple, comprehensible and consistent legislation, guaranteed by the Commission, Parliament and the Council, is a vital precondition for generating sustainable economic growth and stimulating innovation, the competitiveness of businesses — including SMEs and microenterprises — and the creation of good quality jobs. It is also important to fully implement the Small Business Act in all areas.












2.13.


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’ (6).












2.14.


The EESC recalls the importance of the principles that have already been established in order to ensure appropriate legislation. These include the principles of correct implementation within deadlines, subsidiarity and proportionality, the precautionary principle, predictability, ‘think small first’, the external dimension of competitiveness and the internal market test.












2.15.


Currently, a new aspect of legislation — the innovation principle — seems to be becoming a priority for the Council. This principle, which entails taking into account the impact on research and innovation in the process of developing and reviewing regulation, is one of the many criteria for evaluating Commission legislative proposals in technical, technological and scientific domains. It should however be applied intelligently and carefully, particularly in the areas of social and environmental protection, health and consumer protection.












2.16.


As can be seen in the EU Competitiveness Council conclusions (7), ‘the “Innovation Principle” should be applied, which entails taking into account the impact on research and innovation in the process of developing and reviewing regulation in all policy domains’. This is also reflected in the Slovak presidency’s request, as well as in a recent CEPS study (8), which suggests that overly strict rules are likely to hold up investment and slow down innovation. This interpretation is also in line with the thinking behind the REFIT programme.












2.17.


The EESC believes that use of this new principle must be carefully defined in advance.












2.18.


In the EESC’s opinion, the ‘innovation principle’ should have the same weight as the other criteria mentioned in point 2.14 and used by the Commission to analyse the impact of a legislative proposal. A balance should therefore be struck between the innovation principle and the other criteria and care should be taken to ensure that it does not take precedence over them.












2.19.


The EESC suggests to the Slovakian presidency that the potential of the innovation principle should continue to be studied by sharing best practices. The EESC calls on the Commission to use this as a basis to draw conclusions regarding the opportunities and impact of this new approach.












2.20.


European legislation should always aim to create a legal framework that enables businesses and citizens to benefit from the advantages and freedoms of the internal market — i.e. to promote Europe’s innovative drive. This means avoiding unnecessary administrative burdens; meanwhile, poorly designed, obsolete or burdensome rules should be revised or abolished.












2.21.


The EESC believes that regulatory costs should be proportional to the benefits they generate. Needless administrative costs and burdens must be avoided for the sake of the businesses, individuals and administrations responsible for applying regulation. What matters is that a regulation’s net benefit and added value outweigh its costs for businesses and society as a whole.




3.   Forward-looking proposals for future proof legislation









3.1.


The EESC stresses that the concept of ‘future proof legislation’ needs to be better defined. It needs to be respectful of the values and objectives of the European Union in accordance with Articles 1 and 2 of the Lisbon Treaty. Thus the innovation principle, which is one of the priorities of the Slovak presidency (9) and therefore closely linked to the new concept of future proof legislation, needs to take on this responsibility.












3.2.


Innovation is one of the conditions required for sustainable growth in Europe. Whether at European or national level, all legislation should protect companies from unnecessary burdens, particularly SMEs, which have fewer resources. Innovation and competitiveness are the basis for the success of the European social market economy. Innovation needs a high-quality regulatory framework. Legislation and innovation interact in a complex way. This interaction must not be viewed in purely quantitative terms of more or fewer legislative provisions (10).












3.3.


The EESC is of the view that the use of sunset clauses in European legislation should be further analysed so as to avoid future bureaucratic hurdles.












3.4.


Each piece of future proof legislation must remain true to its original purpose, always be consistent with the objectives of the treaties and be able to be flexibly enacted in national legislation, in compliance with the principles mentioned above. It should not go into too much detail, instead limiting itself to providing a framework that can be supplemented, if necessary, either by non-legislative instruments or by national regulators, the social partners and self-regulatory schemes (the latter always under the control of the legislator at the appropriate level).












3.5.


The EESC is in favour of a clarification of the principles of subsidiarity and proportionality. Compliance with subsidiarity, or rather with the division of competences, is of paramount importance for the smooth functioning of the EU as a common legal area. These two principles are, however, sometimes used as arguments by opponents of legislative initiatives, without sufficient substantiation of their underlying reasoning. The criteria that determine the application of the principles of subsidiarity and proportionality need to be clarified. The European Union legal area must be unified and indivisible.












3.6.


The EESC considers that the legislative process at European level must be examined first in order to improve the quality of legislation. There are many initiatives that aim to improve the legislative process, but the stakeholders in this process do not agree on how this should be done. The EESC refers to the Commission guidelines in its ‘Better Law-making’ programme (19 May 2015) and the Interinstitutional Agreement (December 2015/16, April 2016), the Brok-Bresso report (February 2016), the Hübner report (March 2016), the Giegold report (end May 2016) and in particular to the Small Business Act (February 2011). It also draws attention to the proposals of Member States’ governments and parliaments, to initiatives such as European Movement International (EMI) and the Union of European Federalists (UEF), as well as to the contributions of research institutes and think tanks.












3.7.


Civil society organisations are of great importance in the development of European public opinion. Europe needs a less fragmented public opinion to serve as a sounding board for future proof European legislation. As the representative body of civil society organisations in Europe, the EESC is well placed to facilitate a consensus between various civil society stakeholders at all levels, and also in the Member States. More specifically, it is an important intermediary between the legislator and civil society organisations and the social partners.












3.8.


The EESC is aware of the importance of impact assessments, especially for SMEs. They must be taken into account in the legislative process but cannot however replace the political process.












3.9.


Simplifying laws that are difficult to understand and sometimes even to enforce, and abolishing regulations that have become redundant, can benefit citizens and economic players, thereby contributing to an environment that encourages growth and the creation of more good quality jobs (an ‘enabling environment’). Nevertheless, the EESC asks that it be consulted when the Commission, the Parliament and the Council come to an agreement on the withdrawal of legislative proposals. In this context, it is important to evaluate the material and immaterial consequences of such withdrawals and to inform the EESC of them.












3.10.


The Treaty of Lisbon aims to strengthen the role of the European Parliament as well as the Community method. In the aftermath of the crisis, the European Council became the cornerstone of the European institutional system and the EESC considers that this slide needs to be rectified. Future proof European legislation must be based on the Community method.












3.11.


Meetings of Council configurations working on the basis of qualified majority voting should be public for the sake of greater transparency and democracy. Qualified majority voting for Council decisions should be the rule. The EESC also believes that a future reform of the treaties should try to improve the consistency of Council decisions, as its configurations currently pursue partly contradictory policies, with obvious effects on the quality of legislation.












3.12.


The extension of the European Parliament’s rights as provided for in the treaties, but not yet introduced, should be implemented as soon as possible. For example, the restricted right of initiative introduced by the Treaty of Lisbon (Article 225 TFEU) should be used more extensively pursuant to the terms of this Treaty. Rejection by the Commission should only be possible on formal grounds, in particular where the basis of competences is insufficient.












3.13.


Differences in the pace of integration have long been a reality for the EU and these differences are inevitable going forward in view of the number of Member States. In this context, the EESC considers it necessary to make more use of enhanced cooperation. At the same time, EU institutions must not be weakened by the variable geometry of projects for European integration. Enhanced cooperation should function on the basis of qualified majority voting.












3.14.


The EESC supports the European Parliament’s call to transform the Economic and Monetary Union (EMU) into an ‘effective and democratic economic government’ and again stresses the importance of its participation in the consultative processes that need to accompany such a deepening of the EMU if civil society is to be involved.












3.15.


The EESC considers that the trilogue fast-track legislative procedure should only be used in emergencies, which is in keeping with the terms of the Treaty. Unlike European Parliament committees, trilogue meetings are neither transparent nor accessible. Restricting the legislative procedure to a single reading means restricting the participation of civil society.












3.16.


The EESC considers that the instruments and procedures introduced in the aftermath of the financial crisis and the euro crisis need to be better integrated within the European legislative framework. The European Parliament and bodies such as the European Committee of the Regions (CoR) and the EESC need to be better integrated into the European semester cycle. The European Stability Mechanism must be linked up to the EU legislative framework.












3.17.


With regard to delegated acts, the European Commission should make its decision-making process more transparent (see Article 290 TFEU), as the Committee has repeatedly urged.





Brussels, 21 September 2016.


The President of the European Economic and Social Committee

Georges DASSIS




(1)  OJ C 230, 14.7.2015, p. 66 and OJ C 303, 19.8.2016, p. 45.

(2)  List of EESC opinions and information reports.

(3)  OJ C 175, 28.7.2009, p. 26.

(4)  Better regulation for better results — An EU agenda — COM(2015) 215 final.

(5)  Better Law-Making (OJ L 123, 12.5.2016, p. 1).

(6)  OJ C 303, 19.8.2016, p. 45.

(7)  Conclusions of the Competitiveness Council of 26 May 2016 (point (2)), http://www.consilium.europa.eu/register/en/content/out/?&typ=ENTRY&i=ADV&DOC_ID=ST-9580-2016-INIT

(8)  The Centre for European Policy Studies (CEPS) is a Brussels-based think tank.

(9)  http://www.eu2016.sk/data/documents/presidency-programme-eng-final5.pdf

(10)  Better regulations for innovation-driven investment at EU level, Commission Staff Working Document: https://ec.europa.eu/research/innovation-union/pdf/innovrefit_staff_working_document.pdf