Opinion of the European Economic and Social Committee on the ‘Monitoring the application of EU legislation’ (Landscape review of the European Court of Auditors) (own initiative opinion)
Date: 2017-10-18
Institutions: European Economic and Social Committee
Subjects: EU control, European Commission, application of EU law, powers of the institutions (EU), public relations, transparency in decision-making








C_2018081EN.01008101.xml










2.3.2018   


EN


Official Journal of the European Union


C 81/81





Opinion of the European Economic and Social Committee on the ‘Monitoring the application of EU legislation’
(Landscape review of the European Court of Auditors)
(own initiative opinion)
(2018/C 081/11)






Rapporteurs:



Bernd DITTMANN; Denis MEYNENT; Ronny LANNOO











Committee Bureau decision


30.5.2017




Legal basis


Rule 29(2) of the EESC Rules of Procedure




Adopted at plenary


18.10.2017




Plenary session No


529




Outcome of vote
(for/against/abstentions)


176/0/1




1.   Conclusions and recommendations









1.1.


The EESC highlights the importance of the following elements for devising suitable legislation which allows the goals of Article 3 of the Treaty on European Union (TEU) to be met: the principles of proper implementation within deadlines, subsidiarity and proportionality; the precautionary principle; predictability; ‘think small first’; the external dimension of competitiveness; and the internal market test.












1.2.


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. This is why the EESC deems it essential to monitor application on the ground. It is also in favour of legislation that can adapt. It notes that it is not only the content of legislation but the legislative process itself that must be adaptable, so as to meet the needs of businesses and citizens.












1.3.


The EESC therefore believes that the applicability of European Union law must be taken into account from the very beginning of the legislative cycle, when impact assessments are being carried out, and that the European impact assessment ecosystem must continue to evolve.












1.4.


The EESC stresses, however, that better regulation is not a substitute for political decisions and must on no account lead to deregulation or reduce the level of social, environmental or fundamental rights protection.












1.5.


Most difficulties in applying or implementing European Union law properly arise from failure to transpose directives. The EESC therefore generally advocates the use of regulations rather than directives.












1.6.


The EESC believes that improving the way the Commission consults stakeholders is crucial for drafting legislation which is easy for Member States and stakeholders to implement.












1.7.


The EESC can play a useful role here as intermediary between legislators and those who use EU legislation. It is, for its part, constantly adapting its working methods. Thus it recently decided to play an active part in an evaluation of the legislative cycle, carrying out its own ex-post evaluations of the EU acquis.




2.   Introduction









2.1.


On 21 December 2016, Mr Pietro Russo, Member of the European Court of Auditors (ECA), sent a letter to Mr Michael Smyth, EESC Vice-President, informing him that contacts would be established at administrative level concerning a landscape review launched by the ECA on the European Commission’s monitoring of the application of EU law, in line with its obligations. The review requested by the ECA is based on Article 17(1), of the Treaty on European Union, which states that ‘the Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union (…)’.












2.2.


On 3 May 2017, Mr Leo Brincat, Member of the ECA, submitted a document to the EESC Secretary-General, containing three sets of questions.












2.3.


Given the political importance of the file, the EESC Secretary-General informed the Bureau thereof, and the latter decided to set up an ad hoc group of three members, with a mandate to draft a response in the form of an own-initiative opinion based on Rule 29(2) of the Rules of Procedure. The ECA has to receive the EESC’s input in order to incorporate it into its own report, due in May 2018.












2.4.


In essence, the ECA wishes to hear the Committee’s views on whether the steps taken by the European Commission to enforce EU law have addressed Europeans’ concerns. The ECA would like to know which specific aspects of the monitoring of the application of legislation in particular have caught the EESC’s attention.




3.   The questions raised by the ECA









3.1.


The ECA asked three sets of questions, about the EESC’s stance on:






a.


The Commission’s key initiatives aimed at achieving better application of EU law (Better Regulation and EU Law: Better results through better application), in particular as regards their relevance, civil society reactions and any initial positive effects of the initiatives;










b.


The key issues relating to better application of EU law, in particular the applicability and transparency of EU law and steps to raise public awareness thereof;










c.


The Commission’s key responsibilities in relation to better application of EU law, in particular how the EESC uses the information and reports produced by the Commission (1), and any points or suggestions the EESC might wish to make for improving the compilation of reports on the application of law.
















3.2.


The answers provided by the present opinion — which does not claim to be exhaustive — are based on positions expressed by the EESC in many of its opinions (2).




4.   General comments









4.1.


The objectives of the Union are stated in TEU Article 3, in particular: ‘It shall work for the sustainable development of Europe based on balanced economic growth (…), a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. (…) It shall promote economic, social and territorial cohesion, and solidarity among Member States’.












4.2.


Here, the EESC would recall the importance of the principles already established for devising appropriate legislation in line with the above-mentioned objectives. These include the principles of proper implementation within deadlines, subsidiarity and proportionality, the precautionary principle, predictability, ‘think small first’, the external dimension of competitiveness and the internal market test (3).




5.   Specific comments









5.1.


On the Commission’s key initiatives aimed at better application of EU law (Better Regulation
 (4) and EU Law: Better results through better application
 (5))












5.1.1.


The EESC has long been concerned about ‘Better regulation’, having produced a significant number of opinions and information reports (6) on this subject, as well as holding numerous debates, seminars, studies and hearings (7).












5.1.2.


As far as application of the Better regulation programme is concerned, the EESC believes that regulation is not in itself an obstacle; on the contrary, it deems it to be essential for achieving the objectives of the Treaty. The EESC therefore welcomes Commission Vice-President Timmermans’ repeated declaration that the REFIT programme must neither lead to deregulation nor reduce the level of social, environmental or fundamental rights protection (8).












5.1.3.


The EESC believes that better and, therefore smart, regulation is a joint task for all the European institutions and Member States, for the benefit of the general public, businesses, consumers and workers. The EESC stresses, however, that better regulation is not a substitute for political decisions.












5.1.4.


Thus, in its opinion on the communication entitled Better regulation, the EESC (9):






—


welcomed the fact that the better regulation measures will cover the entire life cycle of a legislative act and that both ex-ante and ex-post measures will thus be covered;










—


called for the EU’s consultative bodies to be included in the Interinstitutional Agreement on Better Regulation;










—


supported the comprehensive involvement of stakeholders by means of consultations throughout the lifecycle of a political initiative;










—


stressed the need to choose the appropriate stakeholders and called for independence, impartiality and transparency in the choice of experts for the various bodies;










—


called for more transparency as regards informal trilogues and for limited usage of this instrument;










—


called for a stronger Commission focus on shortcomings in the transposition and application of EU law by the Member States and, as a consequence, advocated the use of regulations rather than directives.
















5.1.5.


Moreover, by accepting the Commission’s invitation to take part in the REFIT platform, and by formulating proposals to improve the functioning of this platform (10), the EESC has demonstrated its commitment to an EU legal framework that enables businesses and citizens to benefit from the advantages of the internal market and to avoid unnecessary administrative burdens.












5.1.6.


As part of its involvement in the REFIT Platform Stakeholder Group, the EESC has actively contributed to the drafting of several REFIT Platform opinions, which have fed into the European Commission’s annual work programme and will continue to do so. The EESC’s priorities have been based on input from its sections and have included, inter alia, a simplification proposal concerning problems of overlapping and repetitive requirements stemming from various EU legal acts, and the need for clear and full European standards for construction products (Construction Products Regulation). The Committee has also helped develop a comprehensive list of suggestions as to how to improve the European Commission’s stakeholder consultation mechanisms, which will contribute to the on-going revision of the Better Regulation Guidelines and Toolbox.












5.2.



On the key issues relating to better application of EU law (applicability and transparency of EU law and steps to raise public awareness thereof)




5.2.1.   Applicability









5.2.1.1.


The EESC is constantly adapting its working methods to help assess the quality of the application of EU law. Less than two years ago, it decided to play an active part in an evaluation of the legislative cycle, carrying out its own ex-post evaluations of the EU acquis.












5.2.1.2.


The EESC (11) believes that the applicability of EU law must be taken into account from the very beginning of the legislative cycle, when impact assessments are being carried out. Despite the progress achieved so far, the European impact assessment (IA) ecosystem must continue to evolve. The EESC proposes several areas of improvement in order to strengthen the quality of IAs, including transparent, accessible, and diverse specifications for studies relating to IAs, an enlargement of the European register of IAs, and a qualitative approach and converging methodological approach at the level of the research matrix of the different EU institutions. In the future, the Committee should also provide an analysis of some impact assessments (regarding subjects on which the Committee holds a strong position), review methodological issues and provide an opinion on whether economic, social, environmental and regional aspects are taken into account at the latter stages of the legislative cycle. This would also facilitate any EESC work on opinions requested of it on draft legislation to which these same impact assessments relate.












5.2.1.3.


The EESC believes (12) that 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. This is why the EESC deems monitoring of application on the ground to be essential. It is also in favour of legislation that can adapt.












5.2.1.4.


European 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 (13). Against this background, the EESC is in favour of clarification of the principles of subsidiarity and proportionality.












5.2.1.5.


The EESC notes, moreover, that it is not only the content of legislation but the legislative process itself that must be adaptable, so as to meet the needs of businesses and citizens (14). It is in this context that the EESC is calling for (15):






a.


stricter application of the Better regulation principles;










b.


greater transparency at all levels of drafting legislation;










c.


the development of a more systematic monitoring system for the transposal of directives at national level;










d.


account to be taken of the role and greater powers of national parliaments conferred by the Treaty of Lisbon;










e.


more regular use to be made by the Commission of its interpretative communications;










f.


greater efforts to streamline and codify legislation.
















5.2.1.6.


Most difficulties in applying or implementing EU law properly arise from failure to transpose directives. The EESC therefore generally advocates the use of regulations rather than directives (16).












5.2.1.7.


Likewise, under REFIT, the Commission had announced that consultations were to be carried out for evaluations, fitness checks and the drafting of delegated and implementing acts. In this connection, the Commission should take greater account of the opinion of its Regulatory Scrutiny Board (RSB) as well, which is now also responsible for ex post evaluations.












5.2.1.8.


The EESC believes that improving the way the Commission consults stakeholders is crucial for drafting legislation which is easy for Member States and stakeholders to implement. Here, the EESC has already made proposals for structurally enhancing and monitoring the consultation process (17).












5.2.1.9.


The EESC has had cause to lament the fact that the measures in the Better regulation package do not take enough account of the role, function and representative nature of the EESC, as enshrined in the Treaties, and thus fail to exploit the potential for making use of the expertise and knowledge of the Committee’s members or to do justice to the EESC’s function. Unfortunately, the fact that the EESC is involved in the REFIT platform (ex-post) does not adequately reflect the Committee’s tasks or its responsibility for strengthening the democratic legitimacy and effectiveness of the institutions (18).












5.2.1.10.


The EESC believes that application of the EU acquis often suffers from a lack of political will on the part of national authorities to comply and ensure compliance with rules which are seen as not ‘fitting in’ with the body of national law and national traditions, and from a persistent tendency to add new, unnecessary regulatory mechanisms to EU rules or to choose some, but not other, parts of these rules (19).












5.2.1.11.


Finally, the EESC believes that the EU Pilot system (informal dialogue between the Commission and Member States on non-compliance with EU law, held before a formal infringement procedure is launched) is another step in the right direction, but the way it operates still needs to be assessed. Moreover, this system should not be used to replace infringement proceedings.




5.2.2.   Transparency









5.2.2.1.


The EESC firmly believes (20) that all legislation must be the outcome of public political discussions. So that European policies can deliver better results, it 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. The EESC wishes to highlight the quality, legitimacy, transparency and inclusiveness of the legislation.












5.2.2.2.


Meetings of Council configurations working on the basis of qualified majority voting should be public out of concern for greater transparency and democracy. The EESC considers that the trilogue fast-track legislative procedure should only be used in emergencies, which is, moreover, in keeping with the terms of the Treaty (21).












5.2.2.3.


Unlike European Parliament committees, trilogue meetings are neither transparent nor accessible. Restricting the legislative procedure to a single reading means restricting civil society’s participation (22).












5.2.2.4.


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 (23).












5.2.2.5.


With regard to delegated acts, the European Commission should make its decision-making process more transparent (see TFEU Article 290), as the Committee has called for repeatedly (24).












5.2.2.6.


Moreover, a certain degree of confusion has resulted from the proliferation of titles for the various agendas and programmes (Better Regulation, Smart Regulation, Think Small First, etc.). The ranking of these programmes and projects and the relationship between them should be clarified, so that the public understands to whom they are addressed (25).












5.2.2.7.


In addition, in the interests of transparency and legitimacy, the Committee has urged (26) the Commission to hold consultations without prejudice to structured civil dialogue (TEU Article 11(2)) or to consultations carried out within specific frameworks, such as consultation of the social partners as part of social dialogue (TFEU Article 154), or of advisory bodies such as the EESC (TFEU Article 304).




5.2.3.   Public awareness









5.2.3.1.


There is a need to foster and improve communication to the public. Communication breeds interest, which breeds understanding. The ‘New Narrative for Europe’ should start with a communication strategy shared by the Commission and the Member States. In this context, it would seem useful to reiterate a point which the EESC stressed in its opinion on the Single Market Act: political parties, the media, educational institutions and all stakeholders have a historical responsibility in relation to the EU being able to successfully cope with the challenges of the global world based on the values that so far have characterised our social market economies (27).












5.2.3.2.


There is not yet enough awareness of the support networks set up by the Commission; this is especially true of the SOLVIT network, which aims to help individuals and businesses when their rights are infringed by public authorities in another Member State. The EESC welcomes the Commission’s initiative to do better in promoting this network.












5.2.3.3.


One option (28) would be for the Commission to place more emphasis on public information about infringements, as ultimately it is the Member States’ governments which are transposing legislation incorrectly, late or not at all. It was they who adopted this self-same legislation in the Council. They are responsible for the widespread poor application of the EU acquis, which is confirmed anew every year in the reports on the application of EU law. The Commission should also examine systematically what measures are essential for effecting a radical change in the current situation and should take account of earlier EESC proposals (29) on this matter.












5.3.



On the key responsibilities of the Commission relating to better application of EU law (monitoring the application of EU law (30) and compliance with EU law by Member States)












5.3.1.


The EESC is clearly concerned about monitoring the application of EU law and has issued a number of specific opinions on this (31). It has also dealt with the issue in a number of opinions on other topics (Smart regulation, Better regulation and REFIT, etc.) and in hearings and seminars on the matter (mainly organised by its Single Market Observatory).












5.3.2.


In this context, the EESC has often urged the Commission to request its opinion on the Annual Report, so as to register the views of organised civil society on, and thus strengthen, the application of legislation in the EU (32).












5.3.3.


The EESC does in fact believe that it can play a useful role as intermediary between legislators and those who use EU legislation. It can, for example, 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 Member States when transposing (33) legislation.












5.3.4.


The EESC (34) has, moreover, proposed a number of measures for improving the transposition of directives, inter alia:






—


deciding on a regulatory transposition instrument early on in the process;










—


speeding up the transposition process once the directive has been published in the Official Journal, by entrusting domestic coordination to a national contact point which would have a database established for this purpose;










—


encouraging transposition by copying, where specific, explicit provisions or definitions are concerned;










—


allowing transposition by means of specific reference to prescriptive/explicit provisions in the directive concerned, such as lists; tables detailing the products, substances or items covered by the directive; specimen forms; and certificates annexed to the directive;










—


gearing national transposition procedures to the scope of the directive by using fast-track procedures, without neglecting the mandatory domestic consultations prescribed for adoption of regulatory texts.
















5.3.5.


The EESC likewise believes that adequate monitoring of EU affairs in the Member States would also greatly help the Commission and would benefit the quality of its work (35).





Brussels, 18 October 2017.


The President of the European Economic and Social Committee

Georges DASSIS




(1)  See the Commission Report on Monitoring the application of European Union law — 2015 Annual Report [COM(2016) 463 final].

(2)  OJ C 132, 3.5.2011, p 47; OJ C 18, 19.1.2011, p. 100; OJ C 277, 17.11.2009, p.6; OJ C 248, 25.8.2011, p.87; OJ C 24, 31.1.2006, p. 52; OJ C 325, 30.12.2006, p. 3; OJ C 43, 15.2.2012, p.14; OJ C 230, 14.7.2015, p. 66; OJ C 383, 17.11.2015, p. 57; OJ C 13, 15.1.2016, p. 192; OJ C 303, 19.8.2016, p. 45; OJ C 487, 28.12.2016, p. 51.

(3)  OJ C 487, 28.12.2016, p. 51 (point 2.14).

(4)  COM(2016) 615 final.

(5)  OJ C 18, 19.1.2017, p. 10.

(6)  See, in particular, the following opinions: Better regulation for better results (rapporteur: Mr Dittmann (OJ C 13, 15.1.2016, p. 192)); Evaluation of European Commission stakeholder consultations (rapporteur: Mr Lannoo, OJ C 383, 17.11.2015, p. 57); REFIT (rapporteur: Mr Meynent (OJ C 303, 19.8.2016, p. 45)); and Better regulation: implementing acts and delegated acts (information report not published in the OJ, rapporteur: Mr Pegado Liz).

(7)  Examples include the 2016 European Consumer Day on Better regulation for consumers?; a debate with Commission Vice-President Frans Timmermans, at the 18 March 2017 EESC Plenary Session; the Study on Implementation of better legislation — Effect of the Stoiber Report; and the 2015 Civil Society Day on Civil dialogue: a tool for better legislation in the general interest.

(8)  OJ C 303, 19.8.2016, p. 45 (point 2.2).

(9)  OJ C 13, 15.1.2016, p. 192.

(10)  OJ C 303, 19.8.2016, p. 45 (point 2.12.1).

(11)  OJ C 434, 15.12.2017, p. 11 point 4.6.1.

(12)  OJ C 487, 28.12.2016, p. 51 (point 1.7).

(13)  Idem (point 1.11).

(14)  Idem (point 2.7).

(15)  OJ C 248, 25.8.2011, p. 87 (point 3.6).

(16)  OJ C 204, 9.8.2008, p. 9 (point 2.1).

(17)  OJ C 383, 17.11.2015, p. 57.

(18)  OJ C 13, 15.1.2016, p. 192 (point 2.6).

(19)  OJ C 18, 19.1.2011, p. 100 (point 3.5).

(20)  OJ C 487, 28.12.2016, p. 51 (points 1.9 and 2.6).

(21)  Idem, (point 3.11).

(22)  Idem (point 3.15).

(23)  Idem (point 3.16).

(24)  Idem (point 3.17).

(25)  OJ C 230, 14.7.2015, p. 66 (point 5.2).

(26)  OJ C 383, 17.11.2015, p. 57 (point 2.1.2).

(27)  OJ C 132, 3.5.2011, p. 47 (point 1.7).

(28)  OJ C 13, 15.1.2016, p. 192 (point 4.4.9).

(29)  OJ C 230, 14.7.2015, p. 66.

(30)  COM(2016) 463 final.

(31)  OJ C 204, 9.8.2008, p. 9 and OJ C 347, 18.12.2010, p. 62.

(32)  OJ C 347, 18.12.2010, p. 62 (point 1.10).

(33)  OJ C 303, 19.8.2016, p. 45 (point 3.2.4).

(34)  OJ C 204, 9.8.2008, p. 9 (point 5).

(35)  OJ C 325, 30.12.2006, p. 3 (point 6.1.13).