Taking stock of the Commission's better regulation agenda.
Date: 2019-05-06
Institutions: Secretariat-General
Subjects: EU policy, European Commission, impact study, policymaking, principle of proportionality, principle of subsidiarity, public consultation, regulation (EU), simplification of legislation, transparency in decision-making, vice-president of an institution

Taking Stock of the Commission's  
Better Regulation 
Agenda

#EUHaveYourSay

 | 1

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COMMISSION STAFF WORKING DOCUMENT 

Taking Stock of 
the Commission’s 
Better Regulation 
Agenda

Accompanying the document
Communication from the Commission to the European 
Parliament, the Council, the European Economic and Social 
Committee and the Committee of the Regions

Better regulation: taking 
stock and sustaining our 
commitment

{COM(2019)178}

TABLE OF CONTENTS

SECTION I: BETTER REGULATION AND THE NEED TO TAKE STOCK 

1.   Introduction 

2.   The May 2015 Better Regulation Package 

SECTION II: WHAT HAVE WE LEARNED? 

3.   Opening up policymaking 

3.1.   Feedback opportunities 

3.2.   Consultation 

3.3.    Contributing to law-making (the ‘Have Your Say’ portal) 

3.4.   Overall assessment and key drivers 

4.   Better tools for better policies 

4.1.   Impact assessment 

4.2.   Evaluation 

4.3.   Regulatory Scrutiny Board  

4.4.   Subsidiarity and proportionality 

5.   Keeping the existing stock of legislation fit for purpose 

5.1.   The REFIT programme 

5.2.   REFIT Platform 

5.3.   Communicating REFIT activities 

5.4.   Considering alternative approaches to simplification and burden reduction 

5.5.   Results of simplification efforts 

6.   Better regulation as a shared agenda 

6.1.   Joint Declaration on the EUs legislative priorities 

6.2.   Delegated acts 

6.3.   Impact assessment 

6.4.   ‘Gold-plating’ of national transposing legislation 

6.5.   Other issues 

7.   Conclusions 

7

8

9

11

12

12

15

16

16

19

19

22

25

28

30

30

31

33

34

35

37

37

38

38

39

39

40

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ANNEX I: BETTER REGULATION IN THE EUROPEAN COMMISSION 

1. The origins of better regulation

2. The different elements of better regulation

ANNEX II: OVERVIEW OF CONSULTATION ACTIVITIES 

1. Overview of consultation activities

2. OECD regulatory Policy Outlook 2018

3. Literature Review

4. Public consultation

4.1.   General questions: The Commission and better regulation 

4.2.   Public consultations: Consulting the public and interested parties 

4.3.   Evaluations and REFIT: Evaluating existing EU laws 

4.4.   Impact assessments: Assessing new Commission proposals 

42

42

42

47

47

48

49

50

50

56

60

63

4.5.   Regulatory scrutiny: Scrutinising the quality of impact assessments and evaluations  64

4.6.   Final questions on past and future progress 

4.7.   Conclusions of the public consultation questionnaire 

4.8.   Position papers 

5. EU Institutions and consultative bodies

5.1.   The European Parliament

5.2.   The General Secretariat of the Council

5.3.   The Council Working Group on Competitiveness and Growth

5.4.   The Committee of the Regions

5.5.   The European Economic and Social Committee

6. European Commission Officials

6.1.   Impact assessment

6.2.   Evaluation

6.3.   Consultation

6.4.   The Regulatory Scrutiny Board

6.5.   The REFIT programme, Platform and Scoreboard

7. Other organisations and bodies

7.1.   REFIT Platform

7.2.   Task force on subsidiarity, proportionality and doing less more efficiently

7.3.   Regulatory Scrutiny Board

66

67

68

71

71

72

73

74

75

77

77

77

78

78

78

79

79

79

80

SECTION   I 

Better regulation and 
the need to take stock

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INTRODUCTION

1

The Juncker Commission came into office with a commitment 
to do different things and to do them differently 1. It wanted 
to focus on delivering the initiatives needed to support its 10 
political priorities and address the issues that really matter to 
people in the EU 2. Under its Union for democratic change, it 
put better regulation principles at the heart of its policymaking 
processes and made them a key part of the efforts to improve 
the legitimacy of EU action. The Commission modified its in-
ternal structure and created the post of First Vice President 
in charge of Better Regulation. It changed its internal working 
methods  and  transformed  its  planning  processes  to  deliver 
streamlined work programmes. Building on the origins of bet-
ter regulation in improving European governance 3, this Com-
mission  wanted  to  strengthen  the  better  regulation  tools  4 
it inherited to inform timely and sound policy decisions that 
would deliver better policies for better results. 

To this end, in 2015 5, the Commission adopted a wide-rang-
ing set of measures. Since then it has regularly reported the 
results it has achieved and the further improvements it has 
introduced  6.  The  Commission  has  now  taken  stock  of  how 
well  the  various  better  regulation  tools  and  processes  are 
functioning. Its aim is to highlight what is needed for possible 
further improvements and to support a public debate on the 
future of better regulation. 

The  stocktaking  exercise  has  focused  on  the  period  since 
May 2015 and relied upon a mixture of evidence. We have 
used  external  assessments  (from  the  OECD  7  and  the  Eu-
ropean  Court  of  Auditors  8),  reports  from  the  Regulatory 
Scrutiny Board and a broad range of consultation activities.  
These include:

•

•

•

•

•

interviews and meetings to consult Commission staff 
working in a range of different departments and func-
tions, including better regulation support staff, senior 
managers  and  members  of  Commissioners’  political 
teams,

a public consultation of all external stakeholders 9,

targeted  consultation  meetings  with  the  adminis-
trative  secretariats  of  the  European  Parliament,  the 
Council of the European Union, the Committee of the 
Regions and the European Economic and Social Com-
mittee,

an opinion from the REFIT Platform 10,

discussion in the Competitiveness and Growth Working 
Party of the Council (better regulation). 

This  staff  working  document  presents  the  findings  of  this 
exercise. It accompanies a Commission Communication dis-
cussing  key  results  and  mapping  out  avenues  for  possible 
future improvements. 

The  Joint  Research  Centre  has  also  published  a  review  of 
the  peer-reviewed  and  ‘grey’  literature  written  since  2015 
in support of the current stocktaking exercise 11. 

1 COM(2014)910 final of 16 December 2014: ‘Commission Work Programme 2015 – A New Start’. 
2 https://ec.europa.eu/commission/priorities_en 
3 COM(2001)428 of 27 July 2001: ‘European Governance – A White Paper’. 
4 See Annex I for an overview of better regulation in the Commission including its origins. 
5 COM(2015)215 final of 19 May 2015: ‘Better regulation for better results – An EU agenda’. 
6 The European Union’s efforts to simplify legislation 2018, annual burden survey https://ec.europa.eu/info/sites/info/files/2018-annu-
al-burden-survey_en.pdf COM(2017)651 final of 24 October 2017: ‘Completing the  better regulation agenda – better solutions for 
better results’; and COM(2016)615 final of 14 September 2016: ‘Delivering better results for a stronger Union’. 
7 http://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018-9789264303072-en.htm 
8 Special report 16/2018 Ex-post review of EU legislation: a well-established system, but incomplete https://www.eca.europa.eu/en/Pag-
es/DocItem.aspx?did=46063 
9 See Annex II, Overview of consultation activities.
10 REFIT Platform opinion XXII.10.a “REFIT Platform Survey – Future prospects”, adopted on 14 March 2019: https://ec.europa.eu/info/
files/refit-platform-recommendations-horizontal-issues-xxii10a-refit-platform-survey-future-prospects_en
11 Listorti G., Basyte Ferrari E., Acs S., Munda G., Rosenbaum E., Paruolo P., Smits P. (2019). The debate on the EU Better Regulation 
Agenda: a literature review, EUR, Publications Office of the European Union, Luxembourg, 2019, ISBN 978-92-76-00840-8, doi:10. 
2760/46617, JRC116035

8 | Taking Stock of the Commission’s Better Regulation Agenda

THE MAY 2015 BETTER 

REGULATION PACKAGE 2

In May 2015, the Commission published an extensive pack-
age of new measures to improve and strengthen its better 
regulation policy in four areas where progress was consid-
ered necessary:

(1)  Opening up policymaking. To make the EU more trans-
parent and accountable but also to ensure that policies are 
based  on  the  best  available  evidence  12,  the  Commission 
took measures to consult more, listen better and better ex-
plain what it does and why. These measures include:

•

•

•

•

creating  feedback  opportunities  over  the  entire  life-
cycle  of  a  policy  from  its  initiation  to  its  evaluation, 
including for the first time the possibility to give views 
on draft texts of delegated and implementing acts.

committing  to  systematic  12-week  public  consulta-
tions on new proposals and evaluations. This was later 
complemented  by  a  commitment  to  translate  public 
consultation questionnaires into all official languages 
for  priority  initiatives  in  Annex  I  of  the  Commission 
work programme and into English, French and German 
for all others.

introducing an improved template for the explanatory 
memorandum  accompanying  Commission  proposals. 
This  provides  improved  explanations  of  how  better 
regulation principles are applied in the preparation of 
an initiative, and if not, why they are not 13.

designing  a  new,  central  web-based  portal  in  sever-
al stages (‘Have Your Say’) to facilitate stakeholders’ 
participation in policymaking 14. 

•

•

(2) Utilising better tools for better policies. To inform po-
litical choices in a balanced and inclusive way, drawing les-
sons from the past and identifying the best and least costly

policy solution, the Commission took measures such as:

•

•

•

integrating and improving guidelines (and supporting 
tools) 15 on how to apply better regulation in practice. 
These guidelines address all aspects of the policy cy-
cle and the connections between them.

to substitute the Impact Assessment Board with a new 
body to scrutinise the quality of impact assessments 
like its predecessor and, for the first time, evaluations. 
To  safeguard  its  autonomy,  this  Regulatory  Scrutiny 
Board  (the  Board)  consists  of  seven  full-time  mem-
bers  who  are  independent  of  the  policymaking  pro-
cess, including three appointed from outside of the EU 
institutions 16.

committing  to  explain  publicly  the  reasons  why  the 
Commission  may  decide  to  take  action  even  if  the 
Board  does  not  give  a  positive  assessment  of  the 
quality of any accompanying impact assessment. 

(3) Keeping  the  existing  stock  of  legislation  fit  for  pur-
pose.  Even  well  designed  legislation  may  become  out  of
date,  turn  out  to  be  more  burdensome  and  less  effective
than originally thought or simply cease to achieve relevant
objectives. For these reasons, managing existing EU legisla-
tion is as important as responding to new policy challenges,
and the Commission therefore decided to:

commit to evaluate existing legislation before propos-
ing changes (‘evaluate first’ principle);

strengthen and eventually mainstream its REFIT pro-
gramme to verify the opportunities to deliver results
more  efficiently  whenever  existing  EU  legislation  is
revised;

12 This document focusses exclusively on the measures taken under Better Regulation policy. Other measures were also taken to im-
prove the availability of evidence for policy making including the establishment of the European Commission’s Group of Chief Scientific 
Advisors.
13 C(2015)3264: Standard explanatory memorandum: http://ec.europa.eu/transparency/regdoc/?fuseaction=list&coteId=3&year=2015&-
number=3264&version=ALL&language=en 
14 https://ec.europa.eu/info/law/better-regulation/have-your-say_en 
15 https://ec.europa.eu/info/better-regulation-guidelines-and-toolbox_en 
16 C(2015) 3263: Decision of the President of the Commission on the establishment of an independent Regulatory Scrutiny Board: 
https://ec.europa.eu/info/sites/info/files/decision-on-the-established-of-an-independent-regulatory-scrutiny-board_may2015_en.pdf

 | 9

•

establish  a  new  REFIT  Platform  17  through  which
stakeholders  can  point  the  Commission  to  existing
policies and legislation that could be simplified.

liament, the Council of the European Union and the European 
Commission  18.  Following  negotiations,  a  new  agreement  19 
was jointly approved in April 2016.

(4) Advancing  a  common  agenda  with  other  EU  institu-
tions and Member States. The Commission has a key role in
better regulation but cannot do it alone. The right to amend
legislative proposals lies with the European Parliament and
Council and the right to transpose and implement adopted
legislation lies with Member States. That is why the Com-
mission  put  forward  a  proposal  for  a  new  interinstitutional
agreement on better law-making between the European Par-

The next section takes stock of the evidence and examines the 
views of the concerned parties on the results of these meas-
ures. 

17 C(2015) 3261: Commission decision establishing the REFIT Platform: https://europa.eu/!fN39pK

18 COM(2015) 216: Proposal for an interinstitutional agreement on better regulation: https://europa.eu/!tu94tj
19 Interinstitutional agreement between the European Parliament, the Council of the European Union and the European Union and 
the  European  Commission  on  better  law  making  of  13  April  2016  https://europa.eu/!Hm69mP 

10 | Taking Stock of the Commission’s Better Regulation Agenda

SECTION  II

What have we learned?

Activities completed

The  Commission  has  applied  its  better  regulation  policy  to  its  policymaking  activities.  The  table 
below gives a general overview for 1 January 2015 to 31 December 2018:

Table 1 Better regulation activities 2015-2018. 

Numbers of:

Public consultations

2015

105

2016

120

2017

2018

112

80

Percentage of public consultations in all 
official languages

26%

21%

55%

71%

Impact assessments

Evaluations (*)

29

53

60

65

53

74

76

67

(*) Evaluations cover regulatory instruments, expenditure measures, and communication and coordination 
activities. The main overarching evaluations are included but not the underlying thematic or geographic 
evaluations.

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OPENING UP 
POLICYMAKING

3

Answers  to  the  public  consultation  identified  stakeholder 
consultations  and  transparency  as  the  two  areas  where 
most progress has been achieved since 2014 20. This is also 
reflected in an OECD comparative assessment of its mem-
ber  countries’  better  regulation  systems  which,  in  2018, 
ranked the Commission as first in the OECD for stakeholder 
engagement 21. At the same time, however, respondents to 
the public consultations flagged transparency and consul-
tation as the two areas most in need of improvements in 
the future 22. 

These general findings confirm the continued validity of the 
Commission’s choice to focus on opening up policymaking 
and are reassuring in terms of the success achieved. They 
do, however, indicate the need to reflect further on what the 
key shortcomings are and how they can be tackled in a pro-
portionate manner. The following analyses in greater detail 
outcomes and contributing factors, offering background ev-
idence for future policy decisions. 

3.1.

FEEDBACK OPPORTUNITIES

Opportunities to give feedback over the entire lifecycle of a 
policy from its initiation to its evaluation were gradually intro-
duced. Already in 2015, feedback on inception impact assess-
ments,  evaluation  roadmaps  and  other  types  of  roadmaps 
was made available. In 2016 for the first time it became pos-
sibile to provide views on draft texts of delegated and imple-
menting acts and in 2017 on Commission proposals.  

The  results  of  the  public  consultation  show  that  around  a 
fifth of respondents are not aware of the opportunities the 
Commission  offers  to  contribute  to  policymaking  23.  Since 
those answering the public consultation can be expected to 
be more knowledgeable about better regulation than the av-
erage  stakeholder  at  large,  this  indicates  a  clear  scope  to 
further improve the knowledge and reach of EU tools. 

Table 2 Roadmaps and inception impact 
assessments posted for feedback, 2015-2018. 

2015

2016

2017

2018

Numbers

Roadmaps

Inception impact assessments

Evaluation roadmaps

76

30

71

57

59

88

Commission proposals

- (*)

- (*)

77

65

33

78

51

21

63

154

(*) Commission proposals were made available for feedback as from 2017

The satisfaction of those aware of the various opportunities 
varied, with the majority of respondents always being either 
satisfied or neutral. Slightly over a fifth of the respondents, 
however, expressed dissatisfaction with all tools.  

Roadmaps and inception 
impact assessments 

At the start of each new initiative the Commission publishes 
an inception impact assessment or, when no impact assess-
ment  is  planned,  a  roadmap  24.  At  the  start  of  each  eval-
uation  the  Commission  publishes  an  evaluation  roadmap. 

20 Question 15 of the public questionnaire. 
21 http://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018-9789264303072-en.htm 
22 Question 16 of the public questionnaire. 
23 Questions 7 and 8 of the public consultation. 
24 In 2015 and 2016 roadmaps and inception impact assessments were posted to http://ec.europa.eu/smart-regulation/roadmaps/
index_en.htm . They were posted to the ‘Have Your Say’ web site for the first time in 2017. This allowed central collection of feedback 
and its statistical analysis. 

12 | Taking Stock of the Commission’s Better Regulation Agenda

•

These documents provide basic information about what the 
Commission intends to do, the analytical work it will under-
take, and the consultation activities it will launch and, in the 
case of roadmaps, the reasons why no impact assessment 
is planned. For a period of 4 weeks, the public can provide 
comments  on  these  documents,  including  the  need  for  an 
impact assessment. The lead Commission department takes 
into account these comments when preparing the initiative. 

 In the two-year period up until 31 December 2018, 96
evaluation roadmaps were posted to the web for stake-
holder feedback. These attracted 724 feedback contri-
butions  63 roadmaps received 0-5 contributions, and
none  more  than  100  contributions).  Business  groups
accounted for approximately 44%, NGOs for 20%, EU
citizens for 12% and public authorities for 7%. The most 
responses came from Belgium (33%), followed by Ger-
many (14%), France (7%) and Spain (6%).any (14%), ).

•

•

 In the two-year period up until 31 December 2018, 86
inception impact assessments were posted to the web
for stakeholder feedback. These attracted 1 253 feed-
back  contributions  (32  inception  impact  assessments
received  0-5  contributions,  with  2  inception  impact
assessments  receiving  more  than  100  contributions).
The highest number of responses were received for the
fight against illegal content online (146) and construc-
tion  products  (121).  Business  groups  25  accounted  for
approximately 59%, NGOs for 15%, EU citizens for 8%
and public authorities for 5%. The most responses came 
from Belgium (24%), followed by Germany (16%), the
UK (8%) and France (8%).

 In  the  two-year  period  up  until  31  December  2018,
128 roadmaps were posted to the web for stakeholder
feedback. These attracted 2 272 feedback contributions
79 roadmaps received 0-5 contributions, with 4 road-
maps receiving more than 100 contributions). Business
groups  accounted  for  approximately  20%,  NGOs  for
13%, EU citizens for 52% and public authorities for 3%.
The most responses came from Spain (25%), followed
by Belgium (15%), Italy (15%) and France (7%).

Table 3 Delegated acts and implementing 
acts posted for feedback, 2015-2018.  

Numbers

2015

2016

2017

2018

Delegated acts

Implementing acts

Acts following regulatory 
procedure with scrutiny

-

-

-

24

42

32

61

73

31

66

76

31

Responses  from  the  public  consultation  indicate  that  road-
maps  and  inception  impact  assessments  are  generally  con-
sidered  useful  to  prepare  participation  in  policymaking  and 
as tools to provide initial feedback  26. This is especially true 
among  professionals.  Professionals  are  also  the  group  that 
provided  most  of  the  feedback  to  inception  impact  assess-
ments and evaluation roadmaps. According to the REFIT Plat-
form, feedback may be limited due to a lack of time 27. In its 
responses to the stocktaking consultation, the business com-
munity  welcomed  the  opportunities  to  provide  feedback  on 
roadmaps and inception impact assessments. 

Delegated acts and implementing acts

In many acts of Union law, the European Parliament and the 
Council empower the Commission to introduce or replace tech-
nical and specific elements needed to implement legislation or 
to ensure a consistent implementation by all Member States. 
The Commission has greatly enhanced transparency around 
the  preparation  of  these  acts  of  general  application,  known 
as  delegated  and  implementing  acts,  allowing  the  public  to 
comment on the draft legal text for a period of 4 weeks  28. 
These comments are taken into account before the Commis-
sion adopts a delegated act and before it presents a draft im-
plementing act to the relevant committee for its opinion. 

Between 1 July 2016 and 31 December 2018 29, the Commis-
sion published 151 draft delegated acts, 191 draft implement-
ing acts and 94 draft acts, following the regulatory procedure 
with scrutiny 30. 

Between  2016  and  31  December  2018,  the  151  delegated 
acts  posted  to  the  web  for  stakeholder  feedback  attracted 
1  576  feedback  contributions  (100  delegated  acts  received 
0-5 contributions, with 2 acts receiving more than 100 contri-

25 ‘Business group’ covers company/business organisations and business associations. 
26 Questions 7 and 8 of the public consultation.
27 REFIT Platform Opinion on submissions XXII.4.a by the DIHK and XXII.4.b by a citizen on Stakeholder consultation mechanisms, 
07.06.2017, https://ec.europa.eu/info/sites/info/files/xxii4ab_on_stakeholder_consultation_mechanisms.pdf
28 Since the middle of 2016, these draft acts have been posted to the ‘Have Your Say’ portal. 
29 Not all draft acts are published, as certain well-defined exceptions apply. For example, acts of individual application, in cases of ur-
gency or where scientific advice is followed without any deviation, are not posted. See: Better regulation toolbox, tool #56 on delegated 
acts and implementing acts, point 4.4 https://ec.europa.eu/info/sites/info/files/file_import/better-regulation-toolbox-56_en_0.pdf 
30 A comitology procedure that pre-dates the entry into force of the Lisbon Treaty and which is now being replaced by empowerments 
according to Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU). 

 | 13

wo-year period ending 31 December 2018, 232 Commis-
sion proposals were posted to the web for stakeholder
feedback. These attracted 7 075 feedback contributions
(152 proposals received 0-5 contributions). The proposal
on a European defence fund alone attracted more than
half of these contributions (4 071). All other proposals
attracted on average 13 contributions. Of all the contri-
butions,  business  groups  accounted  for  approximately
42.9%, NGOs for 10.5%, EU citizens for 31.1% and public 
authorities for 2.7%. The most responses came from Bel-
gium (16.8%), followed by Italy (16.3%), France (12.1%),
and Germany (11.6%).

The  limited  feedback  reflects  the  limited  awareness  of
the  feedback  mechanism  as  well  as  possibly  a  limited
interest in its use. However, in the case of proposals of a
general public interest, such as marine litter  31, drinking
water 32 or the defence fund 33, reponse rates were sig-
nificantly higher.

The European Parliament has made clear that it would
prefer  the  Commission  to  limit  its  consultations  to  be-
fore it adopts as it considers that, during the legislative
process itself, it is for the Parliament and Member States
to carry out their own consultations, if they choose to. A
similar concern is also raised in the opinion of the REFIT
Platform on stakeholder consultation 34. The mechanism
also receives the relative highest share of negative re-
plies in terms of satisfaction from the participants to the
public consultation (nearly a third). This is probably due
to the reduced interest in offering feedback on items the
Commission  has  already  adopted.  Nevertheless,  practi-
cal experience shows that, at times, the mechanism can
generate a high number of replies, which could be of par-
ticular value in cases where no impact assessment and/
or no public consultation could be carried out for reasons
of urgency.

•

•

•

butions). Business groups accounted for approximately 54%, 
NGOs for 11%, EU citizens for 20% and public authorities for 
5%. The most responses came from Germany (20%), followed 
by Belgium (17.8%), the UK (11.8%) and France (9%).

In the same period, the 191 implementing acts posted to the 
web for stakeholder feedback 1 770 feedback contributions ( 
149 implementing acts received 0-5 contributions, with 4 acts 
receiving  more  than  100  contribution).  Business  groups  ac-
counted for approximately 54%, NGOs for 6%, EU citizens for 
26% and public authorities for 6%. The most responses came 
from  Belgium  (13.1%),  followed  by  the  UK  (13%),  France 
(12.8%) and Italy (9%).

In  the  same  period,  the  94  acts  following  regulatory  proce-
dure with scrutiny posted to the web for stakeholder feedback 
received  1005  feedback  contributions  (50  consultation  with 
0-5 contributions, with 2 acts receiving more than 100 con-
tributions). Business group accounted for approximately 59%, 
NGOs for 13%, EU citizen for 11% and public authorities for 
3%, The most responses came from Belgium 25%, followed 
by Germany 19%, the UK 8%, and France 8%.

The low response rate to implementing and delegated acts, in 
particular from EU citizens, is likely to reflect limited awareness 
of the feedback mechanism but also the technical nature of 
the acts. This mechanism is mainly used by business groups. 
Similar  to  roadmaps  and  inception  impact  assessments,  re-
sponses are generally low but may be more significant in a 
few cases of more general concern, such as the implementing 
act on drones or the one on the origin labelling on food. 

Proposals 

Prior to 2015, no formal transparent mechanism existed for 
the public to express its views about the legislative proposals 
presented  to  the  European  Parliament  and  the  Council.  The 
Commission  introduced  then  a  mechanism  for  stakeholders 
to comment on each proposal (and associated impact assess-
ment)  for  a  period  of  8  weeks  immediately  following  Com-
mission  adoption.  The  Commission  reports  this  feedback  to 
the European Parliament and the Council for them to consider 
during the legislative procedure.

31  Proposal for a Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on 
the environment, COM(2018)340, adopted 28.5.2018
32  Proposal for a Directive of the European Parliament and of the Council on the quality of water intended for human consumption 
(recast), COM(2017)753, adopted 1.2.2018
33  Proposal for a Regulationof the European Parliament and of the Council establishing the European Defence Fund, COM(2018)476, 
adopted on 13.6.2018
34  REFIT Platform opinion on submissions XXII.4.a by the DIHK and XXII.4.b by a citizen on stakeholder consultation mechanisms, adopt-
ed 7.6.2017, https://ec.europa.eu/info/sites/info/files/xxii4ab_on_stakeholder_consultation_mechanisms.pdf

14 | Taking Stock of the Commission’s Better Regulation Agenda

3.2. CONSULTATION

The  Commission  is  obliged  to  consult  widely  before  making 
legislative proposals. These consultations should consider local 
and regional dimensions, as appropriate 35. Consultation of the 
public and civil society is part of a wider agenda to improve the 
democratic legitimacy and ownership of what the Union does 
that dates back to the 2001 White Paper on European Govern-
ance 36. This was given a new boost under the Juncker Commis-
sion. In May 2015, the Commission introduced the requirement 
to conduct a 12-week public consultation to support all impact 
assessments  and  evaluations.  For  each  new  policy  initiative, 
the  Commission  develops  a  consultation  strategy  that  maps 
out  the  different  consultation  activities  that  the  Commission 
will undertake. These will generally include a public consultation 
and a range of activities targeting particular stakeholders and 
information. 

According to the responses to the public consultation, the best 
known and the most valued way to contribute to policymaking 

is through public consultations 37. The Commission carried out 
417  public  consultations  between  2015  and  2018,  of  which 
303 to support new policy initiatives and 114 to support eval-
uations. The number of responses varies markedly depending 
on the nature of the topic addressed. There was a very large 
number  of  responses  for  topics  of  high  popular  interest  for 
specific Member States or stakeholder groups. This was, for in-
stance, the case for the consultation on summertime arrange-
ments (38) which attracted some 4.6 million responses (of which 
70% from one Member State alone) and the consultation on 
the evaluation of the Birds and Habitat Directive 39 which trig-
gered more than half a million responses. The consultation on 
the future of the common agricultural policy  40 reached more 
than 300 000 replies in 2017 (compared to 5 700 in 2010 41). 
In contrast, zero or very limited responses were registered for 
some very technical cases like the code of conduct for com-
puterised reservation systems, or zinc oxide in cosmetics. Not 
taking into account the exceptional cases of the consultations 

461

2015

565

2016

1838

2091

2017

2018

35 Article 2 of Protocol No. 2 of the Treaty on European Union (TEU)/Treaty on the Functioning of the European Union (TFEU).
36 COM(2001) 248 final: European Governance — A white paper; https://europa.eu/!Ub93NU
37 Question 8 of the public consulation.
38 COM(2018) 639 of 12 September 2018: Proposal for a Directive of the European Parliament and of the Council discontinuing sea-

sonal changes of time and repealing Directive 2000/84/EC, 
39 COM(2016) 473 Commission Staff Working Document - Executive Summary of the Fitness Check of the EU Nature Legislation 
(Birds and Habitats Directives)
40 COM(2018) 392 of 1 June 2018 Proposal for a Regulation of the European Parliament and of the Council establishing rules on sup-
port for strategic plans to be drawn up by Member States under the Common agricultural policy (CAP Strategic Plans) and financed by 
the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing 
Regulation (EU) No 1305/2013 of the European Parliament and of the Council and Regulation (EU) No 1307/2013 of the European 
Parliament and of the Council
41 COM(2011) 625 of 18 October 2011 Proposal for a Council Regulation determining measures on fixing certain aids and refunds 

related to the common organisation of the markets in agricultural products

 | 15

Box 1. Average replies to public consultations (*)(*) excludes consultations that received significantly higher responses in a given year and considered as outliers: the 2015 consultation on the evaluation of the Birds and Habitat Directive (552 472), the 2017 consultation on the common agricultural policy  (322 912) and the2018 consultation on summertime arrangement (4 706 294). on the summertime arrangements, birds and habitats and the 
future common agricultural policy, the average number of re-
sponses to a public consultation between 2015 and 2018 was 
around 1 119. A sample analysis suggests that in the case of 
public  consultations  supporting  evaluations,  response  levels 
are  relatively  lower  (on  average  455  responses  for  evalua-
tions 42 vs on average 1 643 responses for new initiatives 43). 
For both types of consultations, the majority of contributions 
tend  to  come  from  Germany,  the  UK,  Spain  and  Italy.  Local 
and regional authorites account  for a small proportion of the 
answers.

The academic literature recognises that public consultation is a 
tool to promote participatory democracy 44. It promotes legiti-
macy, helps identify obstacles to effective implementation and 

avoids technocratic rulemaking. According to consultees, public 
consultation is the area where the Commission has made con-
siderable progress since 2015. The literature also recognises a 
clear increase in stakeholder involvement, with sufficient time 
to take into account contributions received from consultees 45. 
However, external stakeholders raised concerns about the high 
number of consultations launched by the Commission and the 
demands this puts on respondents and the fatigue it can cause. 
In addition, industrial stakeholders asked for more transparency 
when presenting consultation results. They would also like the 
views of representative organisations listed in the transparency 
register to be weighted more heavily.

3.3.

CONTRIBUTING TO LAW-MAKING (THE 
‘HAVE YOUR SAY’ PORTAL)

For easier and better interaction throughout the policy cycle 
with people and stakeholders, the Commission has progres-
sively put in place a dedicated digital solution on the Europa 
website. Through this new web portal – known as ‘Have your 
say’  -  the  public  can  participate  in  all  the  feedback  mecha-
nisms  and  public  consultations  analysed  above.  It  can  also 
provide comments and suggestions to the REFIT Platform on 

how  to  simplify  specific  legislation  and  reduce  unnecessary 
regulatory costs. In June 2018, the portal also began offering 
a timeline view for each ongoing or upcoming initiative. Since 
the portal’s launch in June 2016, the number of yearly vis-
its to ‘Have your say’ has steadily increased, reaching almost 
900 000 in 2018. A recent survey of 200 users also highlight-
ed its user friendliness. 

3.4.

OVERALL ASSESSMENT AND KEY DRIVERS

The analysis suggests there is widespread recognition of the 
efforts  the  Commission  has  made  to  open  up  policymaking 
and a fair degree of satisfaction with the existing set of tools. 
The key features of the overall system are considered world 

class by the OECD and there is no significant share of stake-
holders calling for a radical overhaul. At the same time, there 
is a widespread view that the system is not delivering up to 
its potential in terms of participation and evidence collection. 

42 Does not include birds and habitats
43 Does not include responses to summertime or common agricultural policy
44 Dawson, M. (2016). Better regulation and the future of EU regulatory law and politics. Common Market Law Review, 53(5), 1209–
1235. https://doi.org/10.1017/S0165070X00028436; Meads, R., & Allio, L. (2015). Paving the Way to an Improved, Modern Manage-
ment of Risk: The new European Commission’s Better Regulation Strategy. European Journal of Risk Regulation, 6(4), 649–651. https://
doi.org/10.1017/S1867299X00005213 
45 For example, Chase, P., & Schlosser, A. (2015). Better regulation - An ongoing journey. European Journal of Risk Regulation, 6(3), 378–
379; Delogu, B. (2016). Risk Analysis and Governance in EU Policy Making and Regulation. An Introductory Guide. Springer International 
Publishing Switzerland; Eliantonio, M., & Spendzharova, A. (2017). The European Union’s New “Better Regulation” Agenda: Between 
Procedures and Politics. European Journal of Law Reform, 19(1–2), 3–15; Parker, R. W., & Alemanno, A. (2015). A Comparative Overview 
of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment 
Partnership. Columbia Journal of European Law, 22(1), 61–99; Radaelli, C. M. (2018). Halfway Through the Better Regulation Strategy of 
the Juncker Commission: What Does the Evidence Say? JCMS: Journal of Common Market Studies, 56, 85–95; Stoffel, N.-C. (2015). Quo 
Vadis Impact Assessment? An Evaluation of the European Commission’s New Better Regulation Agenda (Master Working Paper).

16 | Taking Stock of the Commission’s Better Regulation Agenda

To highlight possible areas for future changes, the following 
analyses the underlying factors.  

Outreach

There  is  limited  awareness  among  stakeholders  about  the 
opportunities to participate in policymaking and consultation 
activities. This is reflected in the response levels to public con-
sultations  and  feedback  opportunities  and  was  repeatedly 
pointed out by Commission staff who were interviewed. 

In the spring of 2017, in a major move to reach out to a wid-
er  public,  the  Commission  introduced  a  new  requirement  to 
translate its questionnaires into all official languages 46 for its 
most important initiatives. Questionnaires for other initiatives 
would,  as  a  minimum,  be  presented  in  English,  French  and 
German. All public consultations were available in at least two 
languages in 2018 and 71% were translated into all official 
languages (except Irish).

Consultees  to  the  public  consultation  received  all  these  de-
velopments positively 47. Responses from NGOs, in particular, 
indicated  that  multilingual  questionnaires  were  necessary. 
Finally, while too early to determine, the growing volume of 
responses may be linked to this greater accessibility by hav-
ing consultations available in more languages. However, such 
developments  come  with  a  significant  cost  in  terms  of  the 
speed with which a policy initiative can be developed, since a 
questionnaires may take 2 to 3 weeks to translate. Data now 
becoming available following completion of phase three of the 
‘Have Your Say’ web portal will make it possible to analyse the 
geographical distribution of responses in greater detail.

and in the academic literature. The literature review also high-
lighted  a  potential  weakness,  in  that  consultations  currently 
seem to overly target those who already have access to the 
policymaking process 48.

Duration of public consultations

Stakeholders will answer only if they have sufficient time to 
do so. National authorities and local and regional authorities, 
in  particular,  have  stressed  the  importance  of  having  suffi-
cient time to prepare comprehensive responses. It is for this 
reason that, in 2015, the Commission committed in principle 
to 12 weeks for consultations and 4 weeks for feedback. The 
twelve-week duration is appreciated by many respondents to 
the public consultation 49, although the literature review not-
ed that this may be too short for replying to consultations on 
complex issues 50.  

There is a need to consider the impact of any longer consul-
tation period on the overall time it takes to prepare a policy 
proposal. Commission staff proved very sensitive to this issue 
and argued that public consultations (and the opportunity to 
provide feedback on roadmaps) may substantially delay the 
policymaking process within the Commission. Staff argued for 
a shorter response period of 8 to 10 weeks. 

While  in  2015  and  2016  over  90%  of  public  consultations 
abided by the twelve-week consultation period, in 2018 this 
dropped to below 75%. 

Consultation questionnaires

As for other possible ways of increasing awareness and out-
reach, Commission staff welcomed a greater involvement of 
local and national authorities, Member States, expert groups 
and  Council  working  parties  in  gathering  evidence  more  ef-
fectively about the different situations in the Member States 
and, where relevant, in the EU partner countries. Respondents 
suggested that awareness-raising campaigns should support 
individual consultations. This was echoed by Commission staff 

Although a relatively larger share of respondents to the pub-
lic consultation were satisfied with the clarity and neutrality 
of the Commission’s questionnaires, almost a third expressed 
some  dissatisfaction.  In  particular,  consultees  argued  that 
questionnaires should be shorter and drafted in a non-techni-
cal and non-biased manner. In its opinion, the REFIT Platform 
raised concerns about the format, clarity and content of con-
sultations 51. The literature review also noted that participants 

46 The translation of public consultations into Irish should be assessed on a case-by-case basis until the capacity to translate into Irish 
has been fully built up. 
47  Question 9 of the public consultation.
48  Alemanno, A. (2015). How Much Better is Better Regulation ? European Journal of Risk Regulation, (3), 1–24; Dawson, M. (2016). 
Better regulation and the future of EU regulatory law and politics. Common Market Law Review, 53(5), 1209–1235; Eliantonio, M., & 
Spendzharova, A. (2017). The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics. European Journal of 
Law Reform, 19(1–2), 3–15; Garben, S. (2018). An ‘Impact Assessment’ of EU Better Regulation. In S. Garben & I. Govaere (Eds.), The EU 
Better Regulation Agenda: A Critical Assessment. Bloomsbury Publishing; Pachl, U. (2015). Repercussions of the European Commission’s 
better regulation agenda on consumer interests and policy. European Journal of Risk Regulation, 6(3), 375–377; Sarpi, F. (2015). “Better 
Regulation”: Better for whom? European Journal of Risk Regulation, (April), 1–16.
49  Question 9 of the public consultation.
50  Chase, P., & Schlosser, A. (2015). Better regulation - An ongoing journey. European Journal of Risk Regulation, 6(3), 378–379; 
Delogu, B. (2016). Risk Analysis and Governance in EU Policy Making and Regulation. An Introductory Guide. Springer International Pub-
lishing Switzerland;
51  REFIT Platform opinion on submissions XXII.4.a by the DIHK and XXII.4.b by a citizen on stakeholder consultation mechanisms, adopt-
ed 7.6.2017, https://ec.europa.eu/info/sites/info/files/xxii4ab_on_stakeholder_consultation_mechanisms.pdf

 | 17

Staff Opinion 

The quality, use and reporting of various consultation tools are 
influenced by the resources available and the expertise provid-
ed to the staff that works on them.

This is reflected in the results of Commission staff interviews. 
A number of staff who were interviewed thought that public 
consultation has a more limited role in gathering useful evi-
dence, particularly for technically complex legislation. Targeted 
consultations were perceived to be much more useful. Some 
Commission staff expressed a desire for more flexibility par-
ticularly with the requirement to conduct public consultations 
for all evaluations and impact assessments. In their opinion, 
the necessity for public consultation should be assessed in the 
context of each new initiative. Similarly, a number of Commis-
sion staff found public consultations burdensome, time-con-
suming  and  resource-intensive  processes.  The  results  were 
often  considered  disappointing  in  terms  of  response  rates, 
overall coverage of stakeholdersand quality of responses. 

are  often  prevented  from  making  comments  outside  of  the 
multi-choice questions 52. Since 2017, it is always possible to 
upload  supporting  material.  A  number  of  Commission  staff 
indicated  that  they  did  not  have  the  necessary  expertise  to 
draft good, understandable and effective questionnaires. They 
wanted more training and guidance. 

Feedback to consultees

The impact assessment reports, the staff working documents 
accompanying evaluations or a self-standing synopsis report 
should present the results of all consultation activities under-
taken. These should also be summarised in the explanatory 
memorandum  accompanying  a  Commission  proposal.    The 
aim is to provide feedback on how the input from consultees 
has been used. 

Nearly  40%  of  the  respondents  to  the  public  consultation 
were (very) dissatisfied with the way the Commission reports 
on  the  result  of  its  public  consultations  and  feedback  and 
what is does with this information. NGOs responding  to the 
public consultation argued that it is often difficult to discern 
how the consultation process has affected policymaking.  This 
is also supported by the literature review  53. More generally, 
consultees to the public consultation argued that there is no 
clear commitment on how to use consultation results for poli-
cymaking. The REFIT Platform also asks in its opinion for more 
transparency in the feedback provided 54.

A wide range of consultees to the public consultation wanted 
systematic and timely reports presenting the results of con-
sultation activities. They also wanted contributors to receive 
better individual feedback.

52  Impact Assessment Institute. (2017). Final study A year and a half of the Better Regulation Agenda : what happened ?; Ranchordas, 
S. (2017). Consultations, Citizen Narratives and Evidence-Based Regulation: the Strange Case of the Consultation on the Collaborative
Economy, 1, 1–33.
53  For example, Bartlett, O. (2018). Reforming the Regulation on Spirit Drinks – an Example of Better Regulation? European Journal 
of Risk Regulation, 9(2), 310–315; Maśnicki, J. (2016). Good Governance thorough Better Regulation. Looking for the impact analysis 
approach to the proportionality principle; Ranchordas, S. (2017). Consultations, Citizen Narratives and Evidence-Based Regulation: the 
Strange Case of the Consultation on the Collaborative Economy, 1, 1–33; Willermain, F., & Cioriciu, A. (2015). The Better Regulation 
Package : Creating better regulations , but for what kind of EU politics? (39).
54  REFIT Platform opinion on submissions XXII.4.a by the DIHK and XXII.4.b by a citizen on stakeholder consultation mechanisms, adopt-
ed 7.6.2017, https://ec.europa.eu/info/sites/info/files/xxii4ab_on_stakeholder_consultation_mechanisms.pdf

18 | Taking Stock of the Commission’s Better Regulation Agenda

BETTER TOOLS  

FOR BETTER POLICIES 4

4.1.

IMPACT ASSESSMENT

Consultees  overwhelmingly  support  evidence-based  policy-
making. They also agree that the changes introduced in May 
2015 have helped to consolidate the standing and culture of 
the impact assessment. The better regulation guidelines and 
toolbox represent a particular achievement because they pro-
vide a common framework for the policy cycle. This is reflect-
ed in the recent OECD comparative assessment 55: the Com-
mission further refined and improved its impact assessment 
policy and maintained the third-placed ranking it had already 
achieved in 2014. Stakeholders’ concerns generally relate to 
the application of these guidance documents. 

The Regulatory Scrutiny Board observes that impact assess-
ments are carried out for a wide variety of policy fields. For 
example, different types of initiatives require looking at differ-
ent types of impacts, some more easily quantifiable than oth-
ers. In their opinion, the Commission guidelines are sufficiently 
flexible to accommodate for this variety. 

Against this overall positive assessment, the following analy-
ses key concerns and attempts to assess their magnitude. It 
also analyses underlying factors with a view to making possi-
ble future improvements.

Which legislative proposals should be 
supported by an impact assessment?

The Commission is committed to presenting impact assess-
ments for its initiatives that have significant impacts and par-

ticularly  for  those  presented  in  its  work  programme  56.  The 
European Parliament and the Council have also committed to 
examining the Commission’s impact assessment at the outset 
of the legislative procedure.

The Commission has clear guidance on when an impact as-
sessment should be prepared 57. Impact assessments are only 
prepared where they are useful for the decision to be taken 
by the Commission. An impact assessment will not usually be 
prepared if there is little choice over the content of the initia-
tive or if the impacts are not significant 58. 

There may be cases, however, where it is not possible or ap-
propriate to follow each mandatory better regulation require-
ment  (including  carrying  out  an  impact  assessment  where 
significant impacts can be expected)  59. There may be a po-
litical imperative to move ahead quickly, an emergency that 
requires a rapid response or a need to comply with specific 
deadlines in legislation which cannot be met on the basis of 
normal planning. 

Any resulting exception must be centrally agreed within the 
Commission and brought to the attention of external stake-
holders (via the roadmap, or the inception impact assessment 
and the explanatory memorandum). Alternative ways should 
observe as much as possible better regulation principles (like 
accompanying  the  proposal  in  question  with  astaff  working 
document presenting the available evidence). External organ-
isations such as the Impact Assessment Institute are continu-
ously checking whether this occurs in practice 60. 

55  http://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018-9789264303072-en.htm
56  Paragraph 13 of the interinstitutional agreement on better law-making.
57  See tool #9 of the better regulation toolbox on when an impact assessment is necessary: https://ec.europa.eu/info/files/better-regu-
lation-toolbox-9_en
58  For example, proposals to codify several legislative acts do not require an impact assessment because there are no substantive 
changes to the underlying legislation and therefore no impacts. In addition, it may be possible to proceed directly from an evaluation 
of existing legislation to a legal proposal without an impact assessment when the evaluation identifies specific/well-defined issues and 
there is little choice about how to address them. For financial programmes, an impact assessment is not required and a simpler ex ante 
evaluation can be prepared instead .
59 https://www.impactassessmentinstitute.org/news/jo5pj1k319/Absence-of-Impact-Assessment-often-not-justified-or-contrary-to-Bet-
ter-Regulation 
60 https://www.impactassessmentinstitute.org/news/jo5pj1k319/Absence-of-Impact-Assessment-often-not-justified-or-contrary-to-Bet-
ter-Regulation 

 | 19

The stocktaking has recorded a widespread concern by stake-
holders about what these rules imply in terms of number of 
legislative proposals without impact assessments. The Euro-
pean  Parliament  has  noted  that  approximately  30%  of  pri-
ority  initiatives  in  the  Joint  Declaration  signed  by  the  three 
institutions do not have an impact assessment. Similarly, an 
analysis of all proposals linked to the Commission work pro-
gramme AnnexI and II between 2015 and 2018 shows that 
28%  were  not  accompanied  by  an  impact  assessment.  For 
19.5%, no impact assessment was actually needed according 
to the Commission requirements. For the remaining 8.5%, ex-
ceptions were granted. The need to act urgently, thus limiting 
the time available to gather evidence and prepare an impact 
assessment report with the associated consultation activities, 
was the most common reason justifying such exceptions. Pro-
posals to address the migration crisis account for nearly half 
of all exceptions, but there were others to tackle the security 
and economic crises. Contrary to the Commission’s commit-
ment, for a limited number of proposals (7% of all cases), no 
reason was publicly communicated for the lack of an impact 
assessment (be it due to an exception or not). 

Stakeholders consult and appreciate the Commission’s impact 
assessments. They notice and complain about cases where no 
impact assessment was provided. The European Parliament and 
the  Council  have  been  particularly  critical  because  they  base 
their own analyses on the Commission impact assessments and 
have reported that the impact assessment makes finding politi-
cal agreement easier. Civil society, social partners and the busi-
ness  and  research  communities  consider  that  the  absence  of 
an impact assessment undermines transparency and credibility. 
Some Commission officials consider exceptions undermine the 
fair application of the better regulation system across depart-
ments (and thus are an impediment to buying into the system). 

Which impacts should be assessed?

Respondents to the public consultations were generally positive 
about the extent to which the Commission takes into account 
evidence  and  impacts  61.  More  than  two  thirds  of  those  who 
expressed an opinion thought the Commission takes into ac-
count at least partially the evidence, social and environmental 
impacts and subsidiarity and the role of different levels of pub-
lic authorities. 

There is, however, also a clear expectation that impacts could 
be better taken into account, although views differ on which 
impacts. Business organisations and many public authorities 
support  a  strong  focus  on  economic  considerations,  includ-
ing for small and medium enterprises (SMEs) and the digital 
dimension.  Individuals,  civil  society  and  academia  urge  the 
Commission  to  look  more  at  society  as  a  whole  and  not  to 
overemphasise  the  need  to  quantify  impacts.  Respondents 
to the public consultation also point to the impact that leg-
islation has on equality, health, poverty and the safeguarding 
of fundamental rights and the need to uphold environmental 
and consumer standards. Many consultees urge paying great-
er attention to the impacts on individuals, Member States or 
industrial sectors rather than providing aggregated estimates 
at EU level. Purnhagen & Feindt (2015) 62 point to the lack of 
a consolidated approach in this regard. Some NGOs and aca-
demics 63 propose systematically considering the Sustainable 
Development Goals in impact assessments or integrating the 
six mainstreaming objectives 64 set out by the EU treaties. Oth-
ers highlight the need to better assess impacts on developing 
countries as a key prerequisite to live up to the EU commit-
ment to policy coherence for development. 

The  Council’s  General  Secretariat  acknowledges  the  useful-
ness  of  impact  assessments  for  the  legislative  procedure. 
However, the Secretariat thinks that the impact assessment 
could provide even greater value if it anticipated the concerns 
of Member States and provided Member State-specific infor-
mation about the expected impacts of policy options. 

Union legislation may have particularly significant effects at 
local and regional levels and for public authorities (‘territorial 
impacts’). This is understandably a concern for the Committee 
of the Regions, the European Economic and Social Committee 
and national authorities. It was also raised by the ‘Task force 
on  subsidiarity  and  proportionality’  in  its  report  of  10  July 
2018  65.  The  Commission  has  developed  methodologies  for 
territorial impact assessments 66 that have been tested on a 
number of legislative proposals since 2016. The Commission’s 
approach is to assess these impacts when they are relevant 
for the decision-making process and it is proportionate to do 
so (for example, if there are large variations between regions). 
In its October 2018 Communication 67, the Commission indi-
cated that it intends to raise the importance of this issue in its 
guidance to staff. However, it is not always obvious that such 

61  Questions 3 to 5 of the public consultation.
62  Purnhagen, K. P., & Feindt, P. H. (2015). Better Regulatory Impact Assessment. European Journal of Risk Regulation, 361–368.
63  Renda, A. (2017a). How can Sustainable Development Goals be ‘mainstreamed’ in the EU’s Better Regulation Agenda? CEPS Policy 

Insights, 12(March), 1–17.
64  In their analysis, these objectives are gender equality; the horizontal social clause; non-discrimination on the basis of gender, racial 
or ethnic origin, religion or belief, disability, age or sexual orientation; environmental policy integration for sustainable development; 
consumer protection; securing fundamental rights (Smismans & Minto, 2017).
65  https://europa.eu/!Bg68tX
66  https://ec.europa.eu/info/files/better-regulation-toolbox-33_en
67  COM(2018) 703 final of 23 October 2018 Communication from the Commission to the European Parliament, the European Council, 

20 | Taking Stock of the Commission’s Better Regulation Agenda

effects are likely or that the raw data exist to allow a detailed 
assessment to be made. The more active involvement of local 
and  regional  authorities  in  consultation  processes  is  an  es-
sential  element  of  improving  the  quality  of  assessments  of 
territorial impacts.

Stakeholders’ demand for greater and more detailed analysis 
of impacts needs to be duly taken into account, but as Smis-
mans 68 cautions, the list of impacts the Commission is asked 
to address continues to grow.

The quality of analyses presented in impact assessments (and 
evaluations) is often limited by the availability of relevant in-
formation. Commission officials draw attention to the difficul-
ties they have in gathering reliable, comprehensive data and 
applying methodologies coherently and transparently across 
a wide variety of policy fields and across all Member States. 
This is part of a more general problem of knowing how legis-
lation is working. The fact that only a tiny fraction of co-leg-
islators’ amendments to the Commission’s are assessed each 
year places greater pressure on subsequent evaluations to es-
tablish whether the resultant legislation works effectively and 
efficiently. Mechanisms to ensure that relevant performance 
data are collected are also not systematically established.

The stocktaking exercise shows that, above and beyond stake-
holders’ legitimate individual preferences for specific types of 
impacts, there is a need to consider structural issues such as 
the great diversity of the Commission’s initiatives, the specific 
challenges of analysis at a supranational level and the existing 
constraints in terms of available resources, time and skills 69. 
While efficiency gains and marginal improvements to the cur-
rent system are surely achievable and should be sought, these 
factors inevitably limit the quality and breadth of the analysis 
and lead to differing views on its proportionality. The impor-
tance  of  preserving  the  balance  and  comprehensiveness  of 
the Commission approach to impact assessment should also 
be taken into account.  

One tool, too many objectives? 

Impact assessments serve several purposes. First and most 
importantly, they aim to inform the Commission’s political de-
cisions  on  new  political  initiatives.  However,  they  also  serve 
other goals. They promote public transparency and account-
ability by explaining the evidence base and the analysis the 
Commission  took  into  account  when  taking  its  decision.  In 
doing so, impact assessments are also a key document the 
Commission uses to report on the results of its consultations 
and their use. They also play an important role in following up 
and reporting on the assessment of subsidiarity and propor-
tionality and, whenever relevant, various cross-cutting policy 
commitments 70. Crucially, they also assist the European Par-
liament and the Council during the legislative procedure. Final-
ly, by explaining expected causation chains, setting objectives 
and estimating expected impacts, impact assessments should 
serve as a key reference point for any subsequent evaluation.  

Some Commission officials pointed out that the final impact 
assessment  report  has  to  satisfy  competing  demands  and 
therefore represents a compromise. Some of the groups con-
sulted wondered to what extent impact assessments inform 
policy development as opposed to merely justifying a pre-de-
termined/preferred policy option. The Impact Assessment In-
stitute (2017) 71 (among other stakeholders and authors) ar-
gues that impact assessments should always be neutral and 
make  a  genuine  attempt  to  assess  all  policy  options.  Other 
Commission  officials  questioned  whether  the  resources  re-
quired to prepare an impact assessment were proportionate 
to the benefits and the limited readership. Nonetheless, they 
find  that  the  process  of  writing  an  impact  assessment  pro-
vides  a  good,  systematic  preparation  for  later  negotiations 
and communication about the Commission’s proposals.

The 40 or so pages of an impact assessment can prove insuf-
ficient in the case of complex legislative proposals with many 
dimensions. At the same time, the impact assessment report 
and the technical information in it can be overwhelming for 
the non-expert public and a complex read for policy-makers 
themselves 72. 

the European Economic and Social Committee and the Committee of the Regions: The principles of subsidiarity and proportionality: 
Strengthening their role in the EU’s policymaking
68  Smismans, S. (2015). Policy evaluation in the EU: The challenges of linking ex ante and ex post appraisal. European Journal of Risk 
Regulation, 6(1), 6–26. https://doi.org/10.1017/S1867299X00004244S1867299X00004244
69  Timing constraints in the evaluation and public consultation for the preparation of the impact assessements supporting the propos-
als for the next Medium Term Financial Framework provide an example.
70  SMEs test, innovation principle, competitiveness proofing, policy coherence etc
71  Impact Assessment Institute. (2017). Final study: A year and a half of the Better Regulation Agenda : what happened ?
72  The General Secretariat of the Councilstressed the importance of the executive summary in comparison to the lengthy impact 
assessment itself.

 | 21

Respondents to the public consultation also frequently point-
ed  out  that  the  Commission’s  impact  assessments  are  out-
dated the moment they are published, because amendments 
are rarely subject to impact assments during the negotiations 
between the co-legislators. The perceived partial implementa-
tion of the Interinstitutional Agreement in this regard is widely 
seen as problematic.

The quality and objectivity of an impact assessment report is 
ultimately vouched for by the Regulatory Scrutiny Board (see 
4.3.). Impact assessments are made public together with the 
Board opinion when the Commission proposal is adopted. The 
feedback mechanism on proposals allows the public to provide 
its views on its quality and objectivity. 

Resources and support for 
Commission staff

In the Commission, policy teams responsible for individual in-
itiatives  are  directly  tasked  with  carrying  out  any  accompa-
nying  impact  assessment.  Given  existing  safeguards  on  the 
objectivity of the analysis, this is considered a desirable fea-
ture that maximises the relevance of impact assessments for 
the  policy  process.  It  has,  however,  a  cost  as  the  quality  of 
impact assessments (and evaluations) reflects the diverging 
levels of expertise and experience of Commission staff who do 
not typically undertake impact assessments (and evaluations) 
on a continuous basis. Individual members of staff are unlike-
ly, therefore, to be experts in evaluation and impact assess-
ment  methodology.  Some  departments  have  support  teams 
that can provide assistance. During the consultation activities 

supporting the stocktaking, these support units indicated that 
while there were guidance documents, individual policy officers 
often pointed out they were under too much time pressure to 
familiarise themselves sufficiently with these documents and 
that there was too little learning from the experience built up 
within the institution. Staff indicated a desire for more face-
to-face meetings with experienced colleagues to learn from 
them, share best practice and nurture a common understand-
ing of better regulation. For example, they suggested:

• 

• 

• 

• 

a  very  early  kick-off  meeting  of  the  project  team  with 
the better regulation support units to discuss procedures, 
timelines, scope and methods; 

an earlier upstream meeting with the Regulatory Scrutiny 
Board to seek guidance and avoid problems later down 
the line; 

communities of practice to learn from the recent expe-
rience  of  colleagues  in  other  directorates-general  that 
have carried out similar projects and to share best prac-
tice between better regulation support units; 

facilitating a  more effective use of in-house analytical 
capacity such as that provided by JRC or Eurostat. 

Finally, the consultations showed that policy officers are of the 
opinion that they do not have the time to follow more than the 
basic training courses. Consequently, more specialised knowl-
edge (for example, about quantification and subsidiarity) is not 
systematically acquired.

4.2.

EVALUATION

The  various  consultation  activities  revealed  several  impor-
tant issues about the Commission’s practices on evaluation. 
The  results  of  these  consultations  were  complemented  by 
reports  from  the  European  Court  of  Auditors  and  the  ‘Task 
force  on  subsidiarity  and  proportionality’.  The  Court  found 
that  the  Commission  had  designed  a  system  which  is,  as  a 
whole, well-managed and quality-controlled 73. The OECD has 
recently reported that the use of evaluations has improved. 
The EU’s  evaluation system scores highly in the OECD’s 2018 
regulatory  policy  outlook  74  (4th  out  of  39  jurisdictions)  and 
has increased its rating since the previous rating in 2015.  The 

opinion of respondents to the public consultation 75 is mixed, 
being more or less equally spread between satisfied, neutral 
or dissatisfied. 

The  Commission,  the  other  EU  institutions  and  consultative 
bodies use evaluations to learn to what exent EU policies and 
speding programmes are working and to gain new insights. Re-
sults are used to decide whether legislation and programmes 
should be revised, but evaluations are really useful when they 
are well timed, designed to address the key questions and of 
sufficient  quality  to  provide  credible  and  pertinent  answers. 

73  Special report 16/2018 Ex-post review of EU legislation: a well-established system, but incomplete https://www.eca.europa.eu/en/
Pages/DocItem.aspx?did=46063
74  http://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018-9789264303072-en.htm
75  Question 11 of the public consultation.

22 | Taking Stock of the Commission’s Better Regulation Agenda

Stakeholders have raised issues for all of these factors as de-
scribed below.

Time the evaluation appropriately 

The  systematic  evaluation  of  legislation  and  programmes 
as part of an integrated policy cycle was one of the principal 
changes introduced in May 2015. Common sense requires that 
we should know how legislation works before making propos-
als to revise it. Commission officials had mixed views about the 
‘evaluate  first’  principle.  Some  argued  that  it  is  intuitive  and 
logical, as it closes the policy cycle. Others suggested deciding 
on the need for evaluations on a case-by-case basis. Europe-
an institutions, and in particular the Council and the European 
Economic and Social Committee, firmly supported the principle. 

Progress  is  also  being  made  in  applying  the  ‘evaluate  first’ 
principle.  78%  of  impact  assessments  for  amendments  of 
legislation in 2018 were also accompanied by an evaluation. 
This is up from 50% in 2016. 

Evaluating  before  taking  further  action  is  one  thing.  Evaluat-
ing when there are solid conclusions to draw is another matter. 
Many  respondents  thought  that  legislation  was  given  insuffi-
cient time to work before initiating evaluations. Evidence from 
the  literature  suggests  that  evaluations  carried  out  too  early 
may not lead to conclusive results and need to be complement-
ed at a later stage  76. They suggest that evaluations required 
by legislation should be carried out at a moment in the policy 
cycle when impacts have materialised and data are available 
to pursue a meaningful evaluation. Improvements can be made 
if there is a shared understanding between the European Par-
liament, the Council and the Commission on when to require 
an evaluation (as opposed to other implementation issues such 
as transposition reports). The European Court of Auditors also 
raised these issues in its 2018 audit on ex post reviews.

A  specific  challenge  in  this  regard  concerns  spending  pro-
grammes for which many respondents thought that the evalu-
ation could provide more insight and useful learning for subse-
quent programmes. A key concern is that end-of-programme 
evaluations come when the programmes of the next cycle of 
the multiannual financial framework have already been decid-

ed. Similar views have been expressed in the academic litera-
ture 77. Many respondents suggested reconsidering the timing 
of programme evaluations, but this is challenging given that, 
due to the need to have a seamless transition between budg-
etary periods, underlying projects funded by a given multian-
nual financial framework will not have been completed by the 
time the next framework has to be prepared. Mid-term evalu-
ations of an ongoing programme that are used for preparing 
a new generation of programmes would be more useful when 
building also on the results of the preceding programme.

Then evaluate well 

Several interest groups, the Regulatory Scrutiny Board 78 and 
the General Secretariat of the Council observed that the Com-
mission’s  evaluations  were  of  lower  quality  than  its  impact 
assessments. In the literature, it is acknowledged that a wide-
spread  practice  of  policy-related  evaluations  started  some-
what later than impact assessments and need more time to 
mature  further,  particularly  in  terms  of  design  and  method-
ologies 79. The Board frequently raised issues with design and 
methodology.  Commission  departments  grapple  with  several 
well-known practical evaluation challenges, including when to 
evaluate and how to best ensure ownership and independence.

Timing obviously plays a role in the final quality of an evalu-
ation,  but  data  availability  and  data  quality,  more  generally, 
are a strong concern for several interest groups. On quantifica-
tion, a number of Commission officials thought that the lack of 
appropriate data is the most important problem affecting the 
quality of evaluations. Comparable EU-wide data are often not 
available, which makes it difficult to quantify impacts. Some of 
the literature reviewed made a similar point 80. The European 
Parliament Research Service suggested applying clear quality 
criteria, in particular for non-governmental data, together with 
a clear prioritisation for data collection. The Committee of the 
Regions sees a role for the newly created Network of Region-
al Hubs for EU Policy Implementation Review (RegHub)  81  in 
gathering data on regional impacts to inform better the Com-
mission’s evaluations and impact assessments. 

Some Commission officials think that the evaluation process is 
too long and that systematic data collection via well-defined 

76  EPRS. (2017). Evaluation in the European Commission. Rolling Check-List and State of Play. (Vol. 12).
77  For example:  ‘Evaluation could come too late to inspire the next programme round’ (Smismans, 2015); ‘Emphasis on the timing 
of analysis is crucial for being able to inform the legislative process’ (Broughel, 2015); ‘Given the length of the policy cycle, evaluation 
cannot meaningfully start before a minimum of ten years from initial work on a proposal. This period exceeds two EC terms. ’ (Golberg, 
2018).
78  https://ec.europa.eu/info/publications/regulatory-scrutiny-board-annual-report-2017_en
79  Smismans, S. (2015). Policy evaluation in the EU: The challenges of linking ex ante and ex post appraisal. European Journal of Risk 

Regulation, 6(1), 6–26. https://doi.org/10.1017/S1867299X00004244
80  For example, Golberg, E. (2018). “Better Regulation”: European Union Style, (98); De Feo, A. (2017). Better Regulation: Scrutiny of 
EU Policies. In A. De Feo & B. Laffan (Eds.), Scrutiny of EU Policies (pp. 2–13). European University Institute, Robert Schuman Centre for 
Advanced Studies.
81  https://cor.europa.eu/en/our-work/Pages/network-of-regional-hubs.aspx

 | 23

monitoring (instead of ad hoc collection) would substantially 
shorten the evaluation process and improve the quality of the 
analysis. They noted that there is a trade-off between the pres-
sure to reduce the administrative burden of systematic moni-
toring in the original proposal and the availability of evidence 
when it comes to the evaluation. Solutions may emerge when 
paragraphs 22 and 23 of the Interinstitutional Agreement on 
Better Law-Making will be implemented in a more consistent 
manner. This calls on the three institutions to consider including 
monitoring and evaluation provisions in each basic act of Union 
law.  A  good  impact  assessment  forms  the  basis  for  a  good 
evaluation because the impact assessment sets out problems, 
objectives and indicators to monitor and appraise the success 
of the policy. Subesequently, to avoid excessive administrative 
burden, legislative proposals need to establish adequate moni-
toring requirements and data collection verifying that the data 
is not already being colleted under some different legislative 
framework.

The way in which evaluations are carried out and presented is 
another factor affecting their quality, but views on this appear 
to vary.

Whether the Commission should conduct evaluations internally 
or involve external contractors or other institutions met with 
mixed views. Commission officials shared the view that con-
ducting the evaluation internally allows in-house expertise to 
be built up and used more frequently. Some officials were also 
sceptical  about  the  quality  of  the  contractors’  work  and  the 
quality of service they provide. Similar views were expressed 
in the literature 82. In particular, various authors questioned the 
Commission’s  capacity  to  conduct  its  own  internal  consulta-
tions, while others thought that external evaluations were more 
objective, which was important for spending programmes but 
less so when evaluating legislation.  Some authors questioned 
the  ability  of  external  contractors  to  perform  policy  evalua-
tions.  A  number  of  Commission  officials  thought  that  it  was 
necessary to use external studies due to the limited capacity to 
cope with an increased workload and sometimes the need for 
specific (methodological) expertise. Some of the respondents 

to the public consultation argued that evaluations should be 
outsourced or conducted by the European Parliament and the 
Member States.

Some Commission officials and respondents to the public con-
sultation called for a flexible application of the rules and pro-
cedures to make evaluations more meaningful, given the wide 
variety  of  policy  areas  covered  by  evaluations.  Others  urged 
for  additional  codification,  standardisation,  formal  oversight 
and  requirements  to  ensure  that  the  scientific  evidence  and 
analyses are of the highest quality. Additionally, respondents to 
the public consultation and the European Economic and Social 
Committee wanted evaluations to address more comprehen-
sively the transposition of directives into national law and the 
manner in which they are implemented. 

Finally, evaluation lessons must be clearly communicated and 
brought to bear on policymaking. The requirement for an eval-
uation staff working document 83 introduced in 2015 aims to 
present the results of the evaluation process in a self-standing 
and uniform format. Commission officials generally saw it as 
helpful in logically structuring the assessment, but they consid-
ered it unsuitable for communicating with the public, and some 
thought it redundant when there is a good evaluation report 
that has been prepared by external contractors. 

Analysis of empirical evidence shows that the links between 
impact  assessments  and  evaluations  were  limited  in  the 
past  84. The European Court of Auditors reported that in leg-
islation adopted by Council and European Parliament between 
2014 and 2016 ex post reviews were not always used when 
preparing impact assessments  85. Several respondents to the 
public consultation also said that the evaluation results needed 
to be utilised better when performing impact assessments 86.

82  Eliantonio, M., & Spendzharova, A. (2017). The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics. 
European Journal of Law Reform, 19(1–2), 3–15. https://doi.org/10.5553/EJLR/138723702017019102001
Ruhl, G. (2017). ( Ex post ) Evaluation of Legislative Actions in the European Union : The Example of Private International Law.
Smismans, S. (2017). The Politicization of ex post Policy Evaluation in the EU. European Journal of Law Reform, 19(1–2), 74–96. https://
doi.org/10.5553/EJLR/138723702017019102005 
83  A staff working document is prepared by the Commission departments and is not a political document which is formally agreed or 
adopted by the College of Commissioners. It should provide onlyfactual information.
84  Van Golen, T., & van Voorst, S. (2016). Towards a regulatory cycle? The use of evaluative information in impact assessments and ex-
post evaluations in the European Union. European Journal of Risk Regulation, 7(2), 388–403.
85  ECA. (2018). Ex-post review of EU legislation: a well-established system, but incomplete. Special Report of the European Court of 
Auditors 6/2018, (16)
86  For matters of urgency, evaluations are sometimes carried out back-to-back with impact assessments (see toolbox tool #52 https://
ec.europa.eu/info/files/better-regulation-toolbox-52_en ). Commission officials had mixed views on impact assessments and evaluations 
carried out back-to-back. Some thought that in this case the evaluation results might be pre-judged and thus not useful to inform the 
impact assessment. Others found it a pragmatic and efficient way to comply with the ‘evaluate first’ principle. The European Court of 
Auditors has made some similar observations.

24 | Taking Stock of the Commission’s Better Regulation Agenda

4.3.

REGULATORY SCRUTINY BOARD 

Providing  the  best  possible  basis  for  timely  and  sound  poli-
cymaking requires the capacity to provide high quality, objec-
tive analyses of what works, what does not and why. Under 
Commission  policy,  a  Regulatory  Scrutiny  Board  (the  Board) 
scrutinises the quality of such analyses and supports their im-
provement. This is in line with OECD best practices 87 according 
to which regulatory oversight by a standing body close to the 
centre of government should play a key role in this context.  

The Board was set up by the President of the Commission as 
part of the overall May 2015 better regulation package. It has 
seven full-time members who do not have any policymaking 
responsibility.  Each  member  serves  for  a  period  of  3  years. 
Three members are also recruited from outside the EU’s in-
stitutions.  Together,  these  changes  represent  substantially 
stronger guarantees of the Board’s independence in exercising 
its scrutiny function compared to its predecessor, the Impact 
Assessment Board established in 2007. 

What does the Board do? 

The Board performs a quality check on impact assessments 
and evaluations to improve them and ultimately to improve 
the Commission’s proposals and the legislation adopted by the 
co-legislators.

The Board’s mandate is wider than that of its predecessor. The 
new Board looks at selected evaluations (and fitness checks) 
in addition to all impact assessments. It checks their quality 
before they are shared with the Commission’s departments in 
the interservice consultation and issues recommendations for 
their improvement. In 2017, the Board introduced positive and 
negative opinions 89 for evaluations. Additionally, in late 2016 
the Board began distinguishing between ‘positive opinions’ and 
‘positive opinions with reservations’ for impact assessments. It 
also overhauled its system of indicators to monitor the qual-
ity of the reports submitted. The new system consists of 10 
quality components for impact assessments  90 and 6 quality 
components for evaluations 91. These allow the Board to track 
changes in the quality of an impact assessment or evaluation. 

What has the Board done? 

After  replacing  the  Impact  Assessment  Board  in  May  2015, 
the Regulatory Scrutiny Board became fully staffed and op-
erational within the following year. Each year the Board pub-
lishes reports on its own work that also provide insight into the 
wider application of better regulation 92.

The following table and graphs present key statistics on the 
Board’s scrutiny activities since its creation. 

In  2015,  the  Board’s  recommendations  for  impact  assess-
ments focused primarily on defining the problems to be tack-
led,  considering  and  presenting  stakeholders’  views  and  de-
scribing  and  assessing  options.  In  2016,  the  Board’s  annual 
report flagged problem analysis and development of options 
as  ‘common  weaknesses’.  In  2017,  negative  opinions  were 
most  often  issued  when  the  rationale  for  policy  action  was 
not  convincing  or  the  analysis  of  the  baseline  and  options 
showed  shortcomings.  In  2018,  the  Board  highlighted  prob-

87  http://www.oecd.org/gov/regulatory-policy/governance-regulators.htm 
88  https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en#annual-reports
89  Negative opinions for fitness checks and evaluations do not imply that the report to the Board has to be submitted again, as they do 
for impact assessments.
90  Context and scope; Problem definition and use of evaluation, Subsidiarity and EU value added; Objectives and intervention logic; 
Baseline and options; Impacts; Comparison of options and proportionality; Future monitoring and evaluation; Consultation, information 
base and methodology; Presentation.
91  Design and methodology; Effectiveness and efficiency; Relevance and EU value added; Coherence; Validity of conclusions; Presenta-
tion.
92  https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en#annual-reports

 | 25

Box 2. The Board’s work in its own words‘The Board evaluates the quality of an impact assess-ment report based on the Commission’s Better Regulation Guidelines and verifies whether the minimum standards are met. However, in doing so, the Board also takes into account the context of each initiative and the proportional-ity of the analysis, meaning that the depth of the analysis should match the importance of the initiative. It considers how an individual initiative fits within the wider sectoral regulatory environment, to what extent it responds to po-litical orientations that have already been agreed by the relevant EU institutions, and whether there is a legal obli-gation to act. Timing constraints of the initiative are some-times a factor when judging the availability of evidence, of prior evaluations and of comprehensive stakeholder consultations.’ Table 4 Opinions issued by the Regulatory Scrutiny Board, 2015-2018 

RSB opinion

2015

2016

2017

2018

Positive

First 
submission

Positive with 
reservations

Negative

Positive

Second 
submission

Positive with 
reservations

15

0

14

10

0

First 
submission

Second 
submission

Negative

1 ***

Positive

Negative

Positive

Negative

-

-

-

-

22

13

25

16

0

1

7 *

-

12

18

23

7

16

2

10

7

4

0

22

33

21

9

9

1 **

8

3

1

0

Impact 
assessments

Evaluations

(*) In 2016, evaluations received opinions with comments, without ‘positive’ or ‘negative’. 
(**) a third submission received a positive opinion with reservation
(***) no proposal was presented following the negative opinion

lem  definition,  use  of  evaluation,  the  design  of  options  and 
their comparison as being initially the weakest part of impact 
assessments.

Comparable statistics for evaluations were available for the 
first time in 2017. Coherence, presentation, relevance and EU 
value added were the most common issues raised when the 
Board issued negative opinions. The Board observed that often 
the evaluation questions were not appropriate or could not be 
answered. Additionally, they pointed out that often either data 
were not available or were not compared against a baseline 
or definition of success. 

What has the Board achieved? 

The  Board  acted  as  the  Commission’s  quality  control  body 
for the analysis supporting its political decisions. In principle, 

when the Board issues a negative opinion on an impact as-
sessment, the policy process is put on hold until the quality 
of the underlying evidence  reaches a sufficient level. This has 
been  the  norm.  In  three  cases  93,  however,  the  Commission 
took the political decision to go forward with an initiative de-
spite the absence of a positive Board opinion vouching for the 
adequateness of the underlying impact assessment. In all of 
these cases, the Commission carried through on its commit-
ment  of  May  2015  to  explain  publicly  why.  Initiatives  were 
also typically adapted to address the weakenesses in the un-
derlying evidence base.  

The Board also managed to improve the quality of the draft 
impact assessments and evaluations submitted to it. Evidence 
of its success in doing so comes from several sources. First, 
the rate of negative opinions has been dropping for both im-
pact assessments and evaluations 95. Secondly, the monitoring 
system established by the Board shows that  the quality of 

93  Review of the appropriate prudential treatment for investment firms COM(2017)790
Renewable Energy  Directive COM/2016/767
Proposal for a regulation on a framework for the free flow of non-personal data in the European Union - COM(2017)495

94  https://europa.eu/!Qt73NN
95  For a more detailed explanation of the latter see https://europa.eu/!fB49UB

26 | Taking Stock of the Commission’s Better Regulation Agenda

First, despite stronger assurances of independence and a high 
rate  of  negative  opinions,  views  on  the  Board’s  impartiality 
and independence remain mixed. Proposals to increase inde-
pendence were most commonly voiced by stakeholders in the 
public consultation but also by the Council. The lattter wants 
the President of the Commission to establish a secretariat for 
the  Board  that  is  independent  from  the  Commission  and  to 
recruit all members externally. However, Meuwese 96 cautioned 
that true independence was most likely unattainable and per-
haps undesirable, given the need to retain the relevance of the 
impact assessment to the policymaking process. 

Secondly,  some  Commission  officials  expressed  concerns 
that  the  Board’s  demands  for  additional  analysis  and  infor-
mation  are  not  proportionate  to  the  specific  initiative.  Addi-
tionally, some Commission staff expressed concern that the 
Board does not apply its standards consistently to all impact 
assessments (such as its demands for quantified information). 
Few professionals responding to the public consultation and 
academics  97 find that external experts, such as economists 
and  social  scientists,  could  usefully  support  the  Board  on  a 
case-by-case basis.

Thirdly, the public is largely unaware of the Board’s activities. 
Among individuals responding to the public consultation, 320 
(74%) out of 433 said that they were not familiar with the 
Board or barely so, compared to 64 (39%) out of 163 pro-
fessionals. 

Finally,  there  are  contrasting  views  on  whether  the  Board 
should expand its activities.  The academic literature and var-
ious stakeholders have suggested widening the role and re-
sponsibilities of the Board so that it becomes a body ensuring 
compliance with many more aspects of better regulation; for 
example, checking the quality of roadmaps, scrutinising more 
evaluations, checking delegated acts and the final content of 
legal  proposals  (in  relation  to  the  impact  assessment)  and 
sanctioning  exceptions  from  better  regulation  requirements. 
Moreover, some academics  98 expect that the Board will de-
velop to ultimately serve the European Parliament, the Council 
and the Commission. Others  99 see the Board moving to an 
oversight role in a manner similar to the Court of Justice, Euro-
pean Court of Auditors or the Ombudsman. The Commission’s 
proposal for each institution to be able to call for an independ-
ent panel to assess the impacts of amendments to the legisla-
tive proposal was discarded during the negotiation of the 2016 
Interinstitutional Agreement on Better Law-Making.

the  draft  impact  assessments  and  evaluations  submitted  is 
improving  gradually.  The  quality  components  applied  by  the 
Board  also  show  an  improvement  in  quality  following  the 
Board’s  scrutiny.  The  weakest  impact  assessments  are  im-
proving  the  most.  However,  the  Commission’s  departments 
are less diligent in improving draft impact assessments that 
receive  a  positive  opinion  with  reservations.  Early  meetings 
between the Board and the team drafting the impact assess-
ment or evaluation significantly increased the quality of the 
submitted reports. 

Finally, consultation activities undertaken by the Board and by 
the Commission’s departments reveal that the Board is widely 
seen as adding value to the policymaking process and improv-
ing impact assessments and evaluations. Nearly 90% of the 
respondents to the public consultation who were familiar with 
the Board think it adds value to the regulatory process. Com-
mission officials view the regulatory scrutiny process (with a 
hearing  at  the  Board)  as  providing  excellent  preparation  for 
the negotiations with the European Parliament and the Council 
and as an opportunity to rehearse how to explain their propos-
al to non-experts. 

Evidence and the general views of stakeholders thus suggest 
the Board has been performing its tasks in a successful man-
ner. However, some areas of concern remain. 

96  Meuwese, A. C. M. (2015). Regulatory scrutiny in transition. European Journal of Risk Regulation, 6(3), 359–360. https://doi.
org/10.1017/S1867299X0000475X
97  Radaelli, C. M. (2018). Halfway Through the Better Regulation Strategy of the Juncker Commission: What Does the Evidence Say? 
JCMS: Journal of Common Market Studies, 56, 85–95. https://doi.org/10.1111/jcms.12768
98  Meuwese, A. C. M. (2015). Regulatory scrutiny in transition. European Journal of Risk Regulation, 6(3), 359–360. https://doi.
org/10.1017/S1867299X0000475X
99  Wiener, J. B., & Alemanno, A. (2017). Comparing regulatory oversight bodies: the US Office of Information and Regulatory Affairs and 
the EU Regulatory Scrutiny Board. In S. Rose-Ackerman, P. L. Lindseth, & B. Emerson (Eds.), Comparative Administrative Law (2nd ed., pp. 
333–351). Edward Elgar Publishing. https://doi.org/10.4337/9781782540854

 | 27

Box 3. An example of a proposal presented after a negative opinion by the Board• In the negative opinion on the impact assessment  on the proposal for a framework for the free flow of non-personal data in the European Union, the Reg-ulatory Scrutiny Board found that the report did not make the case for EU action and did not assess ap-propriately the proportionality of the options. The re-vised report received a second negative opinion from the Regulatory Scrutiny Board. The Board found that the report particularly failed to make the case for a new right for the portability of cloud services. The in-itiative was adopted by the College without the pro-visions establishing mandatory portability of cloud services, but with self-regulatory measures instead.4.4.

SUBSIDIARITY AND PROPORTIONALITY

The Union must respect the powers given to it by the Mem-
ber States. Protocols No.1 and No.2 of the Treaties create the 
mechanism  to  ensure  this  happens  and  they  give  national 
parliaments a key role in checking conformity with the sub-
sidiarity principle. The Commission presents an assessment of 
subsidiarity and proportionality of its proposals both in the im-
pact assessment report and in the explanatory memorandum 
accompanying the Commission’s legal proposal. The Commis-
sion does not translate the impact assessment into all official 
languages but does translate the explanatory memorandum. 
The Commission has established guidance on how to perform 
these assessments 100. 

However, most assessments of subsidiarity presented in im-
pact assessments tend to be rather general and qualitative in 
nature. They appear at the beginning of the impact assess-
ment  report  and  do  not  use  relevant  analyses  which  come 
later in the report as part of the assessment of policy options. 

The assessment of subsidiarity is also separate from the as-
sessment of the proportionality of the various policy options. 
This is confirmed by responses to the consultation that stated 
that current assessments are overly legalistic and formalistic 
and that assessments should be based on evidence. Profes-
sionals  noted  that  harmonisation  and  cross-border  activity 
were too often used to justify EU action. In this context, it was 
stated that 20 or more different national approaches do not 
necessarily imply a need for harmonisation, but could also be 
evidence  that  the  Member  States  have  successfully  tackled 
the problem.

Therefore, the ‘Task force on subsidiarity, proportionality and 
doing less more efficiently’ set up by President Juncker on 14 
November  2017  included  recommendations  meant  to  im-
prove the assessment of subsidiarity and proportionality in its 
final report 101.

100 See tool #5 on Legal basis, subsidiarity and proportionality: https://ec.europa.eu/info/files/better-regulation-toolbox-5_en
101 https://europa.eu/!Bg68tX

28 | Taking Stock of the Commission’s Better Regulation Agenda

Box 4: Task force’s key recommendations on impact assessmentsRecommendation 1A common method (“assessment grid”) should be used by the Union’s institutions and bodies and by national and regional parliaments to assess issues linked to the principles of subsidiarity (including EU added value), proportionality and the legal basis of new and existing legislation. This assessment method should capture the criteria contained in the Protocol on subsidiarity and proportionality originally attached to the Amsterdam Treaty and relevant jurisprudence of the European Court of Justice. [A proposed model assess-ment grid is annexed to this report] During the legislative process, the European Parliament and the Council should systematically review the subsidiarity and proportionality of draft legislation and the amendments they make using the common method. They should take full account of the Commission’s assessment presented in its proposals as well as the (reasoned) opinions of national Parliaments and the European Committee of the Regions.Recommendation 5The Commission should ensure that its impact assessments and evaluations systematically consider territorial impacts and assess them where they are significant for local and regional authorities. Local and regional authorities should help to identify such potential impacts in their consultation responses and feedback on roadmaps.The Commission should revise its better regulation guidelines and toolbox accordingly and address issues linked to the implementation and EU added value of legislation, and to ensure greater visibility of the Commission’s assessments of subsidiarity, proportionality and relevant territorial impacts in its proposals and accompanying explanatory memoranda.On 23 October 2018, the Commission already set out in broad 
terms how it would respond to the task force 102. In particular, 
it committed to incorporate the ‘grid’ for assessing subsidiar-
ity  and  proportionality  in  its  better  regulation  guidance  and 
to use the grid to present its findings in impact assessments, 
evaluations and explanatory memoranda 103. To avoid a piece-
meal approach, this should be done concomitantly with any 
revision / update of better regulation guidelines and tools the 
next Commission may opt for. It will then need to be decided 
whether the assessment grid should be annexed to the impact 
assessment report or attached to the explanatory memoran-
dum  accompanying  the  Commission’s  proposal  (whether  or 
not there is an impact assessment). Since the memorandum 
is translated in all languages, it would offer a wider coverage 
and reach but would imply additional translation costs.

102 COM(2018) 703: Communication entitled: ‘The principles of subsidiarity and proportionality: Strengthening their role in the EU’s 
policymaking’.
103 The Commission also committed to target the views of local and regional authorities better in its consultation activities and to look 
more carefully at existing legislation (including delegated and implementing acts) from the viewpoint of subsidiarity, proportionality, 
legislative density, simplification and the role for local and regional authorities. These issues are dealt with in other sections of this 
document.

 | 29

5

KEEPING THE EXISTING 
STOCK OF LEGISLATION 
FIT FOR PURPOSE

Legislation should remain fit for purpose and deliver the 
results that EU lawmakers intended and people expected. 
The Commission focuses on tackling unnecessary costs and 
eliminating administrative burdens without compromising 
policy objectives. Making legislation simpler and less 
burdensome also improves implementation and enforcement, 
and ultimately delivers better results.

To pursue these objectives, the Juncker Commission progres-
sively mainstreamed the REFIT programme, supported it with 
the establishment of the REFIT Platform, and communicated 
more extensively on its results. 

5.1.

THE REFIT PROGRAMME

REFIT is the programme for the Commission’s actions to en-
sure existing legislation is simple,efficient and fit for purpose. 
Strengthened  in  the  May  2015  better  regulation  package, 
the  REFIT  programme  was  mainstreamed  in  2017  104.  The 
Commission now seeks to achieve REFIT goals whenever any 
existing law is due to be reviewed. The exact operational im-
plications of this were explained in an appropriately revised 
version of the better regulation tool  105. In addition, all eval-
uations now seek to identify elements for simplification and 
burden reduction.

al  authorities  in  the  stocktaking  consultation  supported  the 
Commission’s  efforts  to  review  and  simplify  legislation.  The 
European Parliament suggested that the Commission’s work 
programme should identify REFIT evaluations/initiatives that 
could be agreed in the political declaration on priority initia-
tives  pursuant  to  the  Interinstitutional  Agreement  on  Better 
Law-Making. The Committee of the Regions considers that RE-
FIT provides an essential focus to assess whether implemen-
tation is practical and feasible. The Committee also suggested 
involving the REFIT Platform more closely in evaluations.

While the Commission has repeatedly stressed that REFIT is 
not deregulatory and does not undermine existing policy ob-
jectives by removing unnecessary costs, responses from some 
NGOs and individuals to the stocktaking exercise continue to 
criticise the Commission’s approach for putting at risk social, 
environmental, consumer and employment objectives. Nation-

Commission  officials  recognised  that  the  REFIT  programme 
is  important  for  communication  purposes  to  emphasise  the 
European Union’s focus on tackling unnecessary costs and to 
stress the value the Union places on engaging with its people. 
The challenges of quantifying regulatory burdens is an aspect 
of REFIT that several officials underlined.. 

104 SWD(2017)675 Overview of the Union’s efforts to simplify and reduce regulatory burdens: https://europa.eu/!vf39MV
105 See tool #2 on the Regulatory Fitness programme and the REFIT Platform:  https://europa.eu/!FH74GM

30 | Taking Stock of the Commission’s Better Regulation Agenda

5.2.

REFIT PLATFORM 

The Commission established the REFIT Platform in May 2015. 
The key purpose of this expert group chaired by the Commis-
sion’s First Vice President is to provide the REFIT process with 
bottom-up  input  by  collecting  and  considering  stakeholders’ 
views on possible improvements to legislation. The Platform 
issues recommendations to the Commission, which commit-
ted itself to explain systematically how it intended to follow 
up on these.  The Platform comprises two groups. The first is 
made up of experts from different parts of civil society, while 
the second group has an expert from each Member State gov-
ernment. It met for the first time in January 2016, following 
the formal process to appoint its members. By 31 December 
2018 the Platform had received 684 submissions from var-
ious  parts  of  civil  society.  The  Platform  responded  to  all  of 
these submissions and adopted 89 opinions covering 129 of 
the submissions 106.

Table 5 REFIT Platform-related activities. 

Numbers

2015

2016

2017

2018

Feedback  on  the  ‘Lighten  the 
Load’  website  and  ‘Have  Your 
Say’ portal

294 (*)

212

64

112

Platform opinions

-

24

45

20

(*) Includes 34 submissions sent to the Commission in 2014 before the Platform 
existed.

Business  associations  and  EU  citizens  accounted  for  almost 
three quarters of all 684 submissions. Public authorities (in-
cluding local and regional authorities) accounted for approx-
imately 5% of submissions. The 268 submissions from indi-
viduals resulted in only five opinions of the Platform. This is 
because  they  were  largely  covering  other  aspects  or  issues 
than those in the remit of the REFIT platform. Individual sub-
missions covered many policy areas but the area most cov-
ered was agriculture (30) followed by financial services (13), 
education (13) and the internal market (12).

The consultation activities revealed mixed opinions from ex-
ternal stakeholders and Commission staff. Stakeholders want 
a  wider  mandate  and  better  reporting  on  the  follow-up  to 
opinions. A number of Commission officials find the Platform 
provides little added value to what they already know but re-
quires  relatively  disproportionate  resources.  However,  some 
Commission  officials  recognised  that  better  ways  to  gather 
evidence from regional and local levels (perhaps via the Com-
mittee of the Regions) and from closer links with stakeholders 
through dedicated conferences would be beneficial. 

Industrial organisations pointed to the need to raise aware-
ness  about  the  Platform  to  increase  submissions  on  poten-
tially  problematic  legislation.  The  Commission  is  also  urged 
to  publish  information  on  measures  that  are  implemented 
following each Platform opinion. There should also be better 
guidelines on how to create a good submission to the Platform 
and more focus on reducing costs and burdens for SMEs.

The stakeholder group of the Platform has generally taken a 
more proactive role in setting priorities and leading the work 
on individual opinions 107. Experts from the national adminis-
trations have preferred not to specify priorities in the absence 
of clear instructions from their governments 108. The Platform’s 
government group has also set clear limits on the number of 
opinions it is willing to address at any one time (between 5 
and 15) and to ensure a clear demarcation between the work 
of the Council and that of the Platform.

Government  responses  to  the  consultation  activities  clearly 
support extending the mandate of the Platform into the next 
Commission and raising the awareness of its work. This is per-
haps illustrated by the fact that 40% of the individuals who 
responded to the consultation did not know whether the REFIT 
Platform  was  effective  in  identifying  legislation  that  can  be 
simplified. They indicated that information is not readily avail-
able and is not advertised. The process followed is also difficult 
to understand. 

The European Economic and Social Committee indicated that 
it would like a stronger representation in the Platform to re-
flect the interests of its constituents. It would also like the Plat-
form  to  address  cross-cutting  topics  to  improve  the  quality 
of  legislation  in  addition  to  tackling  unnecessary  costs,  and 
this may include identifying the need for new legislation. The 

106 Several submissions from stakeholders simply included requests for information or addressed subjects beyond the mandate of the 

REFIT Platform.
107 Working methods of the REFIT Platform government group (minutes of the government group meeting of 23 November 2016). 
https://europa.eu/!pB66vQ
108 See Section 5.3 of the REFIT Platform joint group minutes of 20 September 2016. https://europa.eu/!pB66vQ 

 | 31

Adopted submissions (129) out of the 
received submissions (684) per year

350

300

250

200

150

100

50

0

8
34

2014

64

260

32

212

6

112

19
64

2015

2016

2017

2018

received submissions

adopted submissions

2
2019

literature review also highlighted the Platform’s narrow focus 
on reducing unnecessary regulatory costs 109.

Stakeholders  want  the  Platform  to  be  more  productive,  to 
gather more ideas for simplification and for concrete changes 
to flow more quickly from those ideas.

A dedicated stocktaking exercise undertaken by the REFIT Plat-
form has resulted in an opinion on Future prospects 110. It indi-
cates that the Platform itself is satisfied with its contribution 
to the REFIT agenda and proposes to continue in its current 
form, with a Stakeholder group and a Government group. The 
Stakeholder  group  and  the  Government  group  suggest  im-
provements, which are detailed in the opinion.The Committee 
of the Regions annexed its views to the opinion. It considers 
that to better achieve its goals, the REFIT Platform should be 
adapted in terms of approach and structure to review existing 
legislation  also  from  the  perspective  of  subsidiarity,  propor-
tionality, legislative density and the role of local and regional 
authorities. 111

The  Task  force  on  subsidiarity  and  proportionality  recom-
mended that the Commission’s REFIT Platform be adapted to 
review legislation from the perspective of subsidiarity, propor-
tionality, legislative density and the role of local and regional 
authorities. The Task force noted that the composition of the 
Platform might also need to change to include a greater pres-
ence from local and regional authorities. Stronger links to the 
work  and  networks  of  the  Committee  of  the  Regions  could 
also be considered. The Commission echoed these views in its 
Communication on the principles of subsidiarity and propor-
tionality published on 23 October 2018. 

109 Alemanno, A. (2015). How Much Better is Better Regulation? European Journal of Risk Regulation, (3), 1–24; Smismans, S. (2017). 
The Politicization of ex post Policy Evaluation in the EU. European Journal of Law Reform, 19(1–2), 74–96.
110 REFIT Platform opinion XXII.10.a “REFIT Platform Survey – Future prospects”, adopted on 14 March 2019: https://ec.europa.eu/info/
files/refit-platform-recommendations-horizontal-issues-xxii10a-refit-platform-survey-future-prospects_en
111 REFIT Platform opinion XXII.10.a “REFIT Platform Survey – Future prospects”, adopted on 14 March 2019: https://ec.europa.eu/info/
files/refit-platform-recommendations-horizontal-issues-xxii10a-refit-platform-survey-future-prospects_en

32 | Taking Stock of the Commission’s Better Regulation Agenda

Box 5. Organisations making submissions to the REFIT PlatformNumber of submissions (129) covered by the adopted opinions (89) 
per year

Employment  (1)
Horizontal  (1)
Consumer policy (1)
Health and Food Safety (1)
Mari�me aﬀairs and Fisheries (1)
Chemicals (2)
Sta�s�cs (2)
Taxa�on (3)
Energy  (3)
Compe��on  (4)
Communica�on networks  (4)
Migra�on and Asylum (4)
Environment (6)
Regional policy (8)
Mobility (10)
Jus�ce (10)
Internal Market (12)
Educa�on (13)
Financial services (13)
Agriculture (30)

2018

2017

2016

0

5

10

15

20

25

30

5.3.

COMMUNICATING REFIT ACTIVITIES

The Commission’s work programmes flag its key REFIT initia-
tives. The Commission has also begun to report annually on its 
efforts to simplify legislation 112,113  and every year publishes 
online a REFIT Scoreboard 114 that monitors simplification ini-
tiatives throughout their life cycle. The Scoreboard provides a 
comprehensive overview of the REFIT results achieved under 
each of the Juncker Commission’s political priorities. The Com-
mission’s follow-up to the REFIT Platform opinion is explained 
in the Commission’s annual work programme and in the follow 
–up report. To improve transparency, since July 2017 impact
assessments have also included an annex detailing quantified
estimates of costs and benefits.

Consultations have, however, raised various issues about the 
usefulness, and awareness of the REFIT Scoreboard in its cur-
rent version. National authorities thought that the Scoreboard 
could not yet be considered truly user-friendly. They also asked 
for  clear  quantitative  measurement  of  reductions  in  unnec-
essary costs and suggested that the REFIT Scoreboard could 
help monitor, visualise and communicate progress better than 
today. Following the European Court of Auditors recommenda-
tion for clarification of the REFIT concept 115 the Commission 
has clarified in its annual burden survey the scope of REFIT 
and  improved  its  internal  and  external  communication  to 
stakeholders. 

112 The European Union’s efforts to simplify legislation - 2018 Annual Burden Survey: https://europa.eu/!fJ36Hp
113 SWD(2017)675 Overview of the Union’s efforts to simplify and reduce regulatory burdens: https://europa.eu/!vf39MV
114 https://europa.eu/!qt48pp
115 Special report 16/2018 Ex-post review of EU legislation: a well-established system, but incomplete https://europa.eu/!Hn47dc

 | 33

Box 6. Policy areas covered by the submissions to the REFIT PlatformMany  Commission  staff  were  of  the  opinion  that  the  REFIT 
Scoreboard was burdensome because it requires constant up-
dating. Officials who were interviewed suggested using more 

qualitative examples or case studies to illustrate impacts of 
legislation. 

5.4.

CONSIDERING ALTERNATIVE APPROACHES 
TO SIMPLIFICATION AND BURDEN REDUCTION

The (Competitiveness) Council has asked the Commission on 
several occasions to introduce a system of targets to tackle 
the perceived excessive burden of regulatory costs 116 associ-
ated with European Union legislation. Paragraph 48 of the In-
terinstitutional Agreement on Better Law-Making 117 also calls 
on  the  Commission  to  look  at  the  feasibility  of  establishing 
objectives for burden reduction.

The Commission has thus considered alternative approaches 
and explained its own approach in its Communication of Oc-
tober 2017 118.

The  Commission  looks  to  simplify  legislation  on  a  case-by-
case basis, using evidence gathered from evaluations and im-
pact assessments and including consultation of stakeholders. 
To avoid adversely affecting underlying policy objectives and 
to ensure democratic accountability and transparency, it is es-
sential that a political decision on which costs are legitimate to 
achieve policy goals and which instead should be eliminated 
is  based  on  evidence  from  a  case-to-case  assessment  that 
responds  to  the  concerns  of  stakeholders  and  people.  Up-
front  targets  would  not  offer  such  fundamental  guarantees 
and would present formidable methodological challenges at 
the European level. When revising legislation, the Commission 
thus  investigates  whether  it  can  be  simplified  and  any  un-
necessary costs removed. To provide a transparent measure 
of  the  impact  of  the  proposed  measures  and  a  more  easi-
ly verifiable objective, the Commission tries to quantify  the 
reduction  in  regulatory  costs  implied  by  any  such  measure. 
However, ths is not always possible due to data and methodo-
logical challenges. In addition, to preserve the meaningfulness 
of any quantitative objective to reduce burdens in proposed 
legislation, quantitative estimates need to be modified when-
ever needed due to co-legislators amendments and Member 
States transposition and implementation choices.

116 Regulatory costs include all possible costs that are imposed on businesses, public authorities and individuals and which are linked 
to specific EU legislation (e.g. compliance costs for businesses, administrative costs linked to obligations to generate, collect and report 
information as well as enforcement costs for public authorities. See tool #58 of the Commission’s better regulation toolbox for more 
information: https://ec.europa.eu/info/sites/info/files/file_import/better-regulation-toolbox-58_en_0.pdf).
117 Interinstitutional agreement between the European Parliament, the Council of the European Union and the European Commission on 
Better Law-Making; L 123, 12 May 2016, p.1.
118 COM(2017) 651: Completing the Better Regulation Agenda: Better solutions for better results. https://ec.europa.eu/info/sites/info/
files/completing-the-better-regulation-agenda-better-solutions-for-better-results_en.pdf

34 | Taking Stock of the Commission’s Better Regulation Agenda

Box 7. Council’s request for targets to reduce regulatory costs•Council conclusions of December 2014 (Doc16000/14): ‘…call on the Commission to developand put in place - on the basis of input from Mem-ber States and stakeholders - reduction targetsin particularly burdensome areas, especially forSMEs, within the REFIT Programme, which wouldnot require baseline measurement and shouldconsider at the same time the costs and benefitsof regulation.’•Council conclusions of 26 May 2016 on better reg-ulation to strengthen competitiveness which ‘urgethe Commission to rapidly proceed on [..] the intro-duction of reduction targets in 2017, whilst alwaystaking into account a high level of protection ofconsumers, health, the environment and employ-ees and the importance of a fully functioning Sin-gle Market.’•Council conclusions of 12 November 2018 ((Doc.14137/18) on the European Court of Auditors’Special Report No 16/2018 “Ex-post review ofEU legislation: a well-established system, but in-complete”. ‘…RECALLS the Council Conclusions ofMarch 2018, which underline the importance ofconcrete targets for the reduction of unnecessaryregulatory burdens, whilst respecting existing pro-tection standards and without undermining the un-derlying objectives of the legislation.’5.5.

RESULTS OF SIMPLIFICATION EFFORTS

The current Commission has presented more than 150 new 
initiatives focused on simplifying legislation. As there is a di-
verse range of costs varying between the different initatives, 
these  quantification  estimates  cannot  be  added  together  to 
provide  a  single  figure.  In  addition,  the  extent  to  which  the 
Commission’s simplification proposals actually  deliver tangi-
ble benefits for regulated entities depends on the subsequent 
decisions of the European Parliament and the Council when 
legislating and Member States when transposing and imple-
menting. 

The Commission has reported annually on the results it has 
achieved. The following box extracts from these reports some 
illustrative examples. 

Nearly  a  third  of  all  respondents  to  the  public  consultation 
indicated  their  satisfaction  with  the  Commission’s  efforts  to 
simplify existing EU laws and reduce costs where possible 123. 
However,  some  40%  were  not  satisfied.  Combined  with  the 
evidence presented above, this suggests that while the Com-
mission’s efforts to simplify and reduce unnecessary burdens 

119 COM(2016) 757 Proposal for a COUNCIL DIRECTIVE amending Directive 2006/112/EC and Directive 2009/132/EC as regards 
certain value added tax obligations for supplies of services and distance sales of goods https://eur-lex.europa.eu/legal-content/EN/TX-
T/?uri=COM:2016:0757:FIN
120 COM(2017) 256 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on establishing a single digital 
gateway to provide information, procedures, assistance and problem solving services and amending Regulation (EU) No 1024/2012 
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1554366292445&uri=CELEX:52017PC0256 
121 COM(2016) 283 Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on cooperation between 
national authorities responsible for the enforcement of consumer protection laws (Text with EEA relevance) https://eur-lex.europa.eu/
legal-content/EN/TXT/?qid=1554366445313&uri=CELEX:52016PC0283 
122 COM (2016) 605 Proposal for a Regulation of the European Parliament and of the Council on the financial rules applicable to 
the general budget of the Union and amending Regulation (EC) No 2012/2002, Regulations (EU) No 1296/2013, (EU) 1301/2013, 
(EU) No 1303/2013, EU No 1304/2013, (EU) No 1305/2013, (EU) No 1306/2013, (EU) No 1307/2013, (EU) No 1308/2013, (EU) No 
1309/2013, (EU) No 1316/2013, (EU) No 223/2014,(EU) No 283/2014, (EU) No 652/2014 of the European Parliament and of the 
Council and Decision No 541/2014/EU of the European Parliament and of the Council https://eur-lex.europa.eu/legal-content/EN/
TXT/?qid=1554366622511&uri=CELEX:52016PC0605(01), The work of the High Level Group of Independent Experts on Monitoring 
Simplification for Beneficiaries of the European Structural and Investment Funds, set up by the Commission in July 2015, identified 
opportunities to strip cohesion policy rules of unnecessary complexity. 
123 Question 6 of the public consultation.

 | 35

Box 8. Examples of regulatory simplification entered into force in 2018.Value added tax (VAT) for cross-border business to consumer e-commerce (119). In 2017 the Commission introduced a one-stop shop by which traders that sell goods online to their customers can deal with their VAT obligations through one easy-to-use online portal. The online traders will no longer have to register for VAT in each of the Member States in which they sell goods. The Commission estimated that the one-stop shop will generate an overall saving of €2.3 billion for businesses and €7 billion increase in VAT revenues for Member States. A single digital gateway to provide information, procedures, assistance and problem-solving services (120).  In 2017 the Commission proposed a single digital gateway to ensure centralised access to EU citizens and businesses to information they need to exercise their EU rights. The gateway will integrate several networks and services from national and EU level. It will provide a user-friendly interface in all official EU languages. The single digital gateway could reduce by 60 % the 1.5 million hours that people currently spend researching online before going abroad and businesses could save between EUR 11 and EUR 55 billion annually. Consumer protection cooperation (121): In 2016 the Commission proposed to modernise cooperation mechanisms to reduce the harm caused to consumers by cross-border infringements. The regulation will ensure a swifter protection of consumers, saving time and resourc-es for Member States and businesses. Thanks to additional cooperation powers, the authorities can act faster and save costs to jointly stop widespread online infringements. Businesses operating in all or a large majority of Member States will have the possibility to negotiate commitments at EU-level, which will make it simpler, faster and cheaper to resolve consumer issues. European Structural and Investment Funds (122). The Commission proposed in 2016 a regulation with concrete simplification provisions to make the use of the Funds simpler for beneficiaries and authorities and financial rules more flexible. Overall, this means reducing the implementation costs of EU rules as well the number of errors contributing to optimise the impact of the Multi-annual Financial Framework 2014-2020.have delivered results, these are neither well communicated 
nor generally regarded as sufficient. The changes introduced 
under  this  Commission  have  gone  in  the  right  direction  but 
there is scope to do better. 

It is worth considering how to speed up the adoption of sim-
plification  measures  and  increase  their  visibility.    Improving 
quantification of costs and benefits in evaluations would also 
help. In principle, each evaluation should assess the extent to 
which policy objectives have been met and assess the eco-
nomic efficiency of the policy . However, according to the liter-
ature 124, many evaluations do not generate sufficiently con-
vincing evidence that policies are being delivered in the most 
effective  and  efficient  manner.  Assessing  this  in  quantified 
terms is not always methodologically possible.

Finally, and perhaps more importantly, while regulatory costs 
are often justified for each individual piece of legislation, their 
combined impact can have undesired effects that deserve to 
be better addressed. The report of the ‘Task force on subsidi-
arity and proportionality’ pointed to the combined effects of 
legislation (including delegated acts and implementing acts) 
which may not be impact assessed or evaluated well enough. 
The task force recommends that the Commission’s REFIT pro-
gramme be adapted to review legislation from the perspec-
tive of subsidiarity, proportionality, legislative density and the 
role of local and regional authorities. Consideration on how to 
do this could also encompass an enhanced role for the REFIT 
Platform. 

124 For example, Golberg, E. (2018). “Better Regulation”: European Union Style, (98); Delogu, B. (2016). Risk Analysis and Governance in 
EU Policy Making and Regulation. An Introductory Guide. Springer International Publishing Switzerland. https://doi.org/10.1007/978-3-
319-30822-7

36 | Taking Stock of the Commission’s Better Regulation Agenda

BETTER REGULATION AS  

A SHARED EFFORT 6

In  May  2015,  the  Commission  presented  a  comprehensive 
better  regulation  package,  including  a  proposal  for  a  new 
interinstitutional  agreement  on  better  regulation.  The  previ-
ous  agreement  on  better  law-making  dated  back  to  2003, 
and  was  considered  in  need  of  revision,  given  the  develop-
ments in the better regulation agenda. A new interinstitutional 
agreement also reflects recognition of the need for a renewed 
commitment on the part of all three institutions involved in 
the legislative process (the European Parliament, Council and 
Commission)  in  order  for  better  law-making  efforts  to  suc-
ceed. Following negotiations, the three institutions came to an 
agreement  on  the  substance  of  the  interinstitutional  agree-
ment on 8 December 2015. The new Interinstitutional Agree-
ment on Better Law-Making was signed on 13 April 2016 and 
entered into force the same day. 

The  Interinstitutional  Agreement  stipulates  that  a  political 
meeting  is  to  be  held  annually  to  take  stock  of  progress  in 
implementing the Agreement 125. The first meeting took place 
in Strasbourg in December 2017 in the margins of the Euro-
pean Parliament’s plenary session. Since then the three insti-
tutions have held regular discussions at technical level in the 
Interinstitutional Coordination Group chaired by the European 
Parliament. The Secretariat of the European Parliament pre-
pared an overview on the implementation of the Agreement 
for the Parliament’s Conference of Presidents in June 2017 126. 
The European Parliament adopted an own-initiative report on 
the interpretation and implementation of the Agreement  127. 
The Council has presented regular reports on the work it has 
undertaken to implement the Agreement  128. The Agreement 
contains a number of commitments and follow-up activities. 
Progress on each of these varies.

6.1.

JOINT DECLARATION ON THE EUS 
LEGISLATIVE PRIORITIES

In  line  with  the  Interinstitutional  Agreement,  in  2016  and 
2017, the European Parliament, the Council and the Europe-
an Commission agreed on two Joint Declarations on the EU’s 
legislative priorities. They highlighted 89 initiatives for which 
priority treatment in the legislative process was needed. This 
represents a common commitment by the three institutions 

to ensure substantial progress and, where possible, delivery 
before  the  European  elections  in  May  2019.  The  European 
Commission has adopted all the proposals announced in the 
Joint Declarations. Of these 69 have been agreed or formally 
adopted. 20 initiatives remain pending 129.

125 Paragraph 50.
126 Monitoring report on the  Implementation of the Interinstitutional Agreement on Better Law-Making (IIA-BLM) Pursuant to the Deci-

sion of the Conference of Presidents  of 9 June 2016;  PE 605.832/CPG, 12 June 2017.
127 Report A8-0170/2018 of 15 May 2018: https://europa.eu/!Pm74bR
128 ST 14846 2018 INIT (30-11-2018); ST9895 2018 INIT (15-6-2018); ST 15084 2017 INIT (1-12-2017); ST 10006 2017 
(12-6-2017); ST 15141 2016 COR 1 (8-12-2016).
129 They include the proposals on the multi annual financial framework which is one item in the Joint Declaration but comprises 37 

sectoral programmes as well as the general framework.

 | 37

6.2.

DELEGATED ACTS

“Omnibus” alignment proposal

Many Union legislative acts still allow the Commission to use 
the regulatory procedure with scrutiny to introduce measures 
to implement Union law. Under paragraph 27 of the Interin-
stitutional Agreement on Better Law-Making, the Commission 
presented  a  proposal  on  14  December  2016  to  align  these 
provisions with the requirements of the Lisbon Treaty  130 on 
delegated acts and implementing acts. Discussions advanced 
slowly because of the technical nature of the proposal and di-
verging views of the European Parliament and the Council. The 
co-legislators managed to find agreement on the alignment 
of the empowerments in over 60 legislative acts, and the re-
maining acts will be revisited in the new parliamentary term.

to establish non-binding criteria to improve the application 
of Articles 290 and 291 TFEU and to distinguish between the 
use of delegated acts and implementing acts. The European 
Parliament, Council and Commission reached agreement on 
the new criteria, and these are currently being endorsed in 
each institution. In practice, the choice of empowerment in 
legislative negotiations remains difficult because of political 
disagreements  between  the  European  Parliament  and  the 
Council.  These  difficulties  may  be  eased  with  the  growing 
awareness  of  the  delineation  criteria  and  other  aspects  of 
the Agreement.

Interinstitutional register 
for delegated acts

Delineation criteria (to distinguish 
delegated acts from implementing acts)

In September 2017, the three institutions entered into negoti-
ations under paragraph 28 of the Interinstitutional Agreement 

Under paragraph 29 of the Agreement, the three institutions 
established a joint register on delegated acts 131 on 12 De-
cember  2017.  It  is  a  real  success  and  has  proved  to  be  a 
useful tool to share information on delegated acts between 
the three institutions and the public.

6.3.

IMPACT ASSESSMENT

The Commission has committed to carry out impact assess-
ments to support its legislative and non-legislative initiatives 
that  have  significant  economic,  environmental  or  social  im-
pacts 132. This includes initiatives in the Commission work pro-
gramme or in the joint declaration on annual interinstitutional 
programming. Not all legislative proposals require an impact 
assessment, because political discretion is limited or because 
the impacts are not significant (e.g. proposals to codify legis-
lation) 133. When the Commission does not present an impact 
assessment, it explains why in the explanatory memorandum 
accompanying the proposal. See Section 2.1 for further details.

The European Parliament and the Council are committed to tak-
ing full account of the Commission’s impact assessments  134. 
The co-legislators have also committed to assess the impacts 
of their substantial amendments where this is appropriate in a 
given legislative procedure. Each year the Council prepares a 
report on impact assessments and how the Council uses them 
in its work 135. It has also established guidance for working par-
ty chairs on how to handle examination of the Commission’s 
impact  assessments.  The  General  Secretariat  of  the  Council 
indicates  that  the  use  of  impact  assessments  is  increasingly 
widespread in the Council and that in many areas they facilitate 
discussions and make it easier to reach political agreement. The 
impact  assessment  and  the  explanatory  memorandum  also 

130 COM(2016) 798 and COM(2016) 799.
131 https://webgate.ec.europa.eu/regdel/#/home
132 Paragraph 13.
133 See tool #9 of the better regulation toolbox on When an impact assessment is necessary: https://europa.eu/!cW44Kp 
134 Paragraph 14.
135 See for example, Impact Assessment within the Council – 2018 annual report: https://europa.eu/!gU34pg

38 | Taking Stock of the Commission’s Better Regulation Agenda

provide basic information to assess conformity with the princi-
ples of subsidiarity and proportionality if challenges are made 
before the Court.

The  Council  has  made  less  progress  in  conducting  its  own 
assessments of the impacts linked to its substantial amend-
ments. In January 2018, it established a pilot programme to 
outsource  such  assessments  to  external  consultants  but  no 
assessment has yet been made. Moreover, the Council prefers 
to ask the Commission first before considering undertaking its 
own assessment. There is also a natural tendency of the ro-
tating presidency to avoid any risk of delay on a legislative file 
during its six-month tenure. 

In contrast, the European Parliament has invested more heav-
ily in creating its own expertise and capacity to assess sub-
stantial  amendments.  Since  2003,  when  the  co-legislators 
first  committed  to  make  such  assessments,  the  Parliament 
has  made  some  68  assessments.  At  the  start  of  each  leg-
islative  procedure,  the  European  Parliament  also  routinely 
appraises  the  Commission’s  impact  assessment  against  the 
requirements of the Commission’s better regulation guidelines 
and the opinions of the Regulatory Scrutiny Board. The Par-
liament is also performing more retrospective evaluations of 
legislation  that  help  inform  its  position  on  new  Commission 
proposals.

6.4.

‘GOLD-PLATING’ OF NATIONAL 
TRANSPOSING LEGISLATION

The  Agreement  136  calls  on  Member  States  to  identify  as-
pects of national law that are ‘gold-plated’ 137 and to inform 
the  public.  To  facilitate  transparency,  the  Commission  has 
adapted its IT platforms to enable Member States to provide 
information about “gold-plating”. Up until the end of 2018, 

there have been only three notifications from two Member 
States (add footnote with reference).

At  the  political  stocktaking  meeting  in  December  2017,  the 
three institutions agreed to remind the Member States about 
the gold-plating provisions. 

6.5.

OTHER ISSUES

There has been little or no tripartite discussion between the 
three institutions about the implementation of paragraphs 22 
and 23 of the Agreement, which concern review clauses and 
the inclusion of monitoring and evaluation provisions in basic 
acts of Union law. The Commission has presented two annual 

burden surveys pursuant to paragraph 48 of the Agreement, 
and these are discussed in the chapter 5 above on the Union’s 
efforts to simplify legislation..

136 Paragraph 43.
137 National governments ‘gold-plate” when they add new or more stringent obligations in national measures that transpose acts of 
Union law. Member States are free to do so (unless prohibited by the underlying legal basis in the Treaties), but those affected criticise 
the EU for this when it is a purely national decision.

 | 39

7

CONCLUSIONS

The costs of better regulation

Utilising better tools for better policies

The benefits of better regulation are clear. We wish to deliv-
er  high  quality  effective  legislation  through  informed  deci-
sion-making. However, there are also significant financial and 
human resource costs associated with operating an effective 
better regulation policy. There are clearly trade-offs of making 
further improvements in a world of limited resources. It is not 
possible  to  estimate  the  costs  associated  with  the  changes 
introduced in 2015, but one can estimate the absolute costs 
and resources involved in preparing impact assessments and 
evaluations in a typical year. We estimate that between 150 
and 280 full-time equivalent staff are deployed on better reg-
ulation-related activities and supported by external contrac-
tors providing services amounting to between EUR 10 million 
to EUR 37 million annually 138.

Opening up policymaking 

The progress made in consultation and in increasing transpar-
ency was widely acknowledged by stakeholders and the liter-
ature. Wider awareness and a wider range of opportunities to 
be involved, combined with better consultation documents and 
more satisfactory responses to stakeholders contributions, are 
the key avenues to further  improve the Commission’s pub-
lic consultation mechanisms. However, any such effort would 
need to ensure sufficient resources are made available, includ-
ing by better prioritising activities.

Impact assessment and evaluation

Solid  reasons  for  granting  exceptions  will  always  exist,  and 
unnecessary impact assessments should be avoided. There is, 
however,  a  clear  demand  for  improved  communication  sur-
rounding the reasons why an impact assessment may not be 
carried out. Improvements in the timely availability and public 
awareness of roadmaps would also make it easier to issue an 
early warning that an impact assessment is not to be carried 
out and enable stakeholders react. There is also scope to re-
flect on how must usefully communicate available evidence 
and  analysis  to  stakeholders  in  cases  where  an  impact  as-
sessment is not possible.   

While  individual  stakeholders  voiced  a  preference  for  more 
in-depth assessment of individual impacts, this has to be bal-
anced against the overall breadth of the analysis and its pro-
portionality in terms of resources. Measures to increase the 
readability of impact assessments would be welcomed. There 
is scope for procedural efficiency gains in the impact assess-
ment process, more training and a more effective mobilisa-
tion of existing expertise.  This confirms the need for well-re-
sourced better regulation functions. 

Over the last few years, the Commission has made progress in 
improving evaluation. There is, however, scope and a need for 
further progress. To drive this, there has to be a greater use for 
evaluations by policy-makers and more favourable conditions 
for carrying out high-quality evaluations. Evaluations and im-
pact assessments should be linked better so that the findings 
from one are used more effectively by the other. Evaluations 
could be used more in the decision-making processes in the 
Commission and by the co-legislators. The quality of evalu-
ations  depends  heavily  on  whether  information  is  available 
about how the legislation works.

138 See Annex I for details

40 | Taking Stock of the Commission’s Better Regulation Agenda

Regulatory Scrutiny Board

The Regulatory Scrutiny Board is widely recognised as helping 
to  improve  the  quality  of  impact  assessments  and  evalua-
tions. Its work could be better known by the public. Using the 
Board’s expertise in early meetings on the design and meth-
odology of evaluations and impact assessment is promising.

Keeping the existing stock of legislation fit for 
purpose

Stakeholders have mixed views on the Commission’s efforts 
to simplify existing EU laws and reduce costs where possible. 
While  the  Commission’s  efforts  to  simplify  and  reduce  un-
necessary  burdens  have  delivered  results,  these  are  neither 
well communicated nor generally regarded as sufficient. The 
changes introduced under this Commission have gone in the 
right direction but there is scope to do better. It will be impor-
tant to reflect on the  reasons why simplification has proven 
to be so complicated and burden reduction so burdensome.

Enhanced  quantification,  while  welcome,  would  not  directly 
lead to greater success, only easier communication. No fun-
damental reasons to change the Commission’s views on the 
appropriateness of targets were identified by the stocktaking. 

Advancing a common agenda 
with other EU institutions 
and Member States

The new Interistitutional Agreement is still young. It has shown 
its usefulness and achieved some clear successes, notably for 
delegated acts. However, there is still much unexploited po-
tential to improve the application of better regulation by the 
three institutions, particularly for monitoring and evaluation, 
assessing the impacts of more substantial amendments and 
transparency on ‘gold-plating’.

 | 41

BETTER REGULATION IN THE 
EUROPEAN COMMISSION

E
N
N
A

XI

1.

THE ORIGINS OF BETTER REGULATION

The  White  Paper  on  European  Governance  from  2001  139 
addressed how the Union uses the powers given to it by its 
citizens. It promoted greater openness, accountability and re-
sponsibility of all those involved in policymaking. The aim was 
to bring the Union closer to its citizens in order to make more 
effective and relevant policies. Those aspirations are just as 
relevant today as they were in 2001.

Following the consultation launched by the White Paper, the 
Commission  published  three  Communications  to  promote 
better law-making. The first launched the impact assessment 
tool to improve the quality and coherence of the policymaking 
process  140. The second established principles and standards 
to promote a culture of dialogue and stakeholder participa-
tion 141. The third presented an action plan to simplify and im-
prove the regulatory environment 142. These actions came into 
force in 2003 and together they form the basis of the better 
regulation policy in place today. 

2.

THE DIFFERENT ELEMENTS OF BETTER 
REGULATION

Better  regulation  is  a  framework  to  deliver  evidence-based 
policymaking.  It  promotes  transparency,  accountability  and 
informed decision-making. It is a key tool to deliver better Eu-
ropean governance and to make sustainable development a 

mainstream part of the Union’s policymaking under commit-
ments made at the Göteborg European Council in 2001 143. 

The  Commission’s  approach  incorporates  the  different  steps 

139 COM(2001) 428 final of 27 July 2001; “European Governance – A White Paper”.
140 COM(2002) 266 final of 5 June 2002; ‘Impact Assessment’.
141 COM(2002) 704 final of 11 December 2002: ‘Towards a reinforced culture of consultation and dialogue – general principles and 
minimum standards for consultation of interested parties’ (published in draft form in June 2002 in COM(2002) 277 final).
142 COM(2002) 278 final of 5 June 2002; ‘Action plan simplifying and improving the regulatory environment’.
143 Presidency Conclusions from the European Council, Göteborg 15-16 June 2001: http://ec.europa.eu/smart-regulation/impact/back-
ground/docs/goteborg_concl_en.pdf

42 | Taking Stock of the Commission’s Better Regulation Agenda

Box 1: Excerpt from Commission Communication COM(2002) 275 on Better Law-MakingThere are a lot of complex issues at stake now in enacting good European legislation which is mindful of the princi-ples of subsidiarity and proportionality. People nowadays take an interest in the effectiveness of the rules handed down “from Brussels” and the way they are drawn up.  The advent of a democratic conscience is strengthening the need for accountability and proportionality in the way powers vested in the European institutions are exercised. This need is expressed more especially in transparency, clarity and the willingness to stand up to scrutiny. What we have here, then, is a veritable ethical requirement.of the policy lifecycle from inception and preparation to im-
plementation, evaluation and subsequent modification. Better 
regulation is built on three complementary and closely related 
pillars:  the  impact  assessment,  evaluation  and  stakeholder 
consultation. There are also a number of other elements de-
scribed below.

Stakeholder consultation

Consultation allows stakeholders, including individuals, to ex-
press their views and for the Commission to gather evidence 
to help prepare its new initiatives 144 or evaluate existing poli-
cies. A consultation strategy accompanies each initiative. This 
identifies the information that the Commission would like to 
obtain,  and  the  activities  and  methods  the  Commission  will 
deploy to obtain that information.

The  initial  description  of  the  initiative  and  the  consultation 
strategy are usually published in a roadmap or inception im-
pact assessment. This allows all stakeholders to comment at 
an early stage and to prepare themselves for the more de-
tailed consultation activities that follow. 

The  evaluation  and  impact  assessment  depend  on  a  good 
quality stakeholder consultation. A web-based public consulta-
tion lasting 12 weeks generally accompanies each impact as-
sessment and evaluation. For major initiatives in the Commis-
sion’s work programme, the Commission aims to consult in all 
official languages and at least in English, French and German 
in other cases. Additionally, Commission staff will carry out tar-
geted consultations using interviews, workshops, conferences, 
focus groups, etc. as described in the consultation strategy.

The impact assessment 

The  impact  assessment  looks  at  a  range  of  policy  solutions 
that  could  address  an  identified  problem  and  its  underlying 
causes. It helps to ensure observance of the Treaty principles 
of  subsidiarity,  proportionality  and  sustainable  development 
and ensure that the most relevant and important impacts are 
identified  and  assessed.  An  impact  assessment  should  also 
provide information about the views of different stakeholders. 
Lastly, an impact assessment should make the link to a future 
evaluation  by  identifying  the  benchmarks  and  procedure  for 
monitoring the practical implementation of the legislation, pol-
icy or programme.

144 Article 2 of Protocol No. 2 TEU/TFEU obliges the Commission to consult widely before proposing legislative acts and these consulta-
tions should take into account the local and regional dimensions of the envisaged action where appropriate.

 | 43

Box 2: The better regulation policy cycleEvaluation 

The REFIT Platform

Evaluations look back to see how the policy has worked  145. 
When  available,  they  use  the  earlier  impact  assessment  to 
compare the actual and expected outcomes. Evaluation pro-
vides  important  information  about  potential  problems  that 
occur in policy implementation. A future impact assessment 
might  address  these  in  connection  with  a  subsequent  revi-
sion of the policy. In some cases, an evaluation may conclude 
that  the  legislation  is  no  longer  needed  or  that  no  changes 
are required. Good evaluations need timely information about 
how a policy performs. Therefore, an appropriate monitoring 
framework is essential, but this is not always available. This 
can occur, for example, when no arrangements have been put 
in place to collect the necessary information or when the Com-
mission  is  legally  obliged  to  evaluate  the  legislation  before 
sufficient practical experience has been accumulated.

The Commission’s better regulation agenda is based on the 
‘evaluate first’ principle. Before introducing new legislation, the 
Commission has committed to evaluate what already exists, 
providing robust and objective evidence to feed decisions as 
to  whether  EU  action  should  continue  as  is,  be  changed  or 
even  stop.  These  evaluations  can  be  of  individual  pieces  of 
legislation  or  of  several  acts  covering  a  particular  sector  or 
issue (‘fitness checks’).  In 2016, evaluations were carried out 
for about half of the impact assessments. In 2017 this figure 
rose to over 70% and in 2018 reached 78%.

REFIT

The concept of regulatory fitness (‘REFIT’) is at the heart of 
better regulation. It focuses on ensuring that new and existing 
legislation achieves its objectives in the most efficient man-
ner and that existing legislation delivers as expected, does not 
impose unnecessary regulatory costs and is as simple as pos-
sible. Evaluations help ensure that Union legislation remains 
fit for purpose.

The REFIT Platform was set up by the May 2015 Better Regu-
lation Communication 146 to advise the Commission on how to 
make EU regulation more efficient and effective while reducing 
unnecessary costs (without undermining policy objectives).

The Platform consists of two groups:

•

•

A  stakeholder  group,  with  18  members  representing
business (including SMEs), civil society organisations and
social partners with direct experience in applying Union
legislation. The group also includes two representatives
from the European Economic and Social Committee and
the Committee of the Regions.

A  government  group,  with  one  high-level  expert  from
each of the Member States. t group, with one high-level

Platform members consider suggestions by various parts of 
civil society. (either online via ‘Lighten the Load’ web site or 
through other means), on the potential to reduce regulatory 
and administrative burden. On this basis, the REFIT Platform 
adopts  opinions  recommending  practical  follow-up  to  the 
Commission. 

The Commission is committed to respond to all opinions, in-
dicating whether action is necessary or appropriate, the type 
of action envisaged and its timing. The Commission presents 
information  on  the  follow-up  to  the  Platform  opinions  in  its 
work programmes 147 and in the REFIT Scoreboard 148.

Better regulation guidelines 
and toolbox

The Commission has developed and published guidelines that 
direct  Commission  staff  on  how  to  apply  better  regulation  in 
their work. These capture all phases of the policy cycle, includ-
ing planning, impact assessment, preparing proposals, imple-
mentation and transposition, monitoring, evaluation and stake-
holder consultation. They also address how the Commission will 
assist Member States in their national implementation of Union 
legislation. The toolbox contains 65 separate tools. They each 
provide  detailed  assistance  on  how  to  tackle  specific  issues 
such as subsidiarity and proportionality 149.

145 The Commission uses five standard criteria: (1) Effectiveness (the extent to which policy objectives are met); (2) Efficiency (the costs 
of delivering the intended benefits); (3) Coherence (within the policy instrument and with other policies); (4) Relevance (ongoing need for 

the legislation); (5) EU added value (beyond what might have been expected without EU intervention).
146 COM(2015)215: Better regulation for better results - An EU agenda: https://europa.eu/!TM38ru
147 https://ec.europa.eu/info/publications/european-commission-work-programme_en
148 http://publications.europa.eu/webpub/com/refit-scoreboard/en/index.html
149 https://ec.europa.eu/info/files/better-regulation-toolbox-5_en

44 | Taking Stock of the Commission’s Better Regulation Agenda

Stakeholder participation: 
‘Have Your Say’ web site (the 
Better Regulation Portal) 150

The  Commission  launched  a  web-based  portal  (‘Have  Your 
Say’) in 2016, and its functionality has improved progressively. 
Stakeholders are able to provide feedback on policy prepara-
tion and implementation throughout the policy cycle. Via the 
‘Have Your Say’ website, stakeholders are able to:

•

•

•

•

•

provide comments on Commission roadmaps and incep-
tion impact assessments which are published at the very
outset of a new initiative (during a period of 4 weeks);

participate  in  public  consultations  for  new  initiatives  or
evaluations  of  existing  legislation  or  policies  (generally
during a 12-week period);

provide  comments  on  proposals  adopted  by  the  Com-
mission (during a period of 8 weeks following adoption).
These will be compiled by the Commission and forward-
ed to the European Parliament and the Council;

provide  comments  on  the  legal  texts  of  draft  delegat-
ed acts and implementing acts before finalisation by the
Commission (during a period of 4 weeks); and

provide comments and suggestions about how to simpli-
fy specific legislation and reduce unnecessary regulatory
costs. These suggestions are then taken up by the REFIT
Platform, which may adopt opinions and recommenda-
tions to the Commission.e comments and suggestions

All stakeholders are able to participate in such activities and 
can request automatic notification when new documents are 
uploaded to the portal website. Stakeholders can also submit 
views and other evidence to the Commission outside of the 
formal consultation and feedback processes. In particular, the 
European Citizens’ Initiative 151  complements the participation 
opportunities mentioned above. 

Regulatory Scrutiny Board

The President of the Commission established a new Regula-
tory Scrutiny Board 152 in May 2015. The Board is comprised 
of a chairperson and six members. They all work full-time for 
the Board and do not have any responsibility for policymaking. 
All serve for a period of 3 years. Three of the members were 

recruited from outside of the European institutions, while the 
remaining  four  come  from  within  the  Commission  services. 
The Board checks the quality of all impact assessments and 
selected  evaluations  against  the  requirements  of  the  Com-
mission’s better regulation guidelines. It issues opinions and 
recommendations  for  improvement.  Initiatives  accompanied 
by  an  impact  assessment  will  generally  require  a  positive 
opinion from the Board for the file to proceed to the College of 
Commissioners for decision.

These represent significant changes compared to the previous 
Impact Assessment Board where a pool of senior managers 
worked part-time for the Board but retained their policy re-
sponsibilities. The previous Impact Assessment Board did not 
scrutinise evaluations.

Interinstitutional agreement 
on better law-making

Following the Commission’s proposal in 2015, an interinstitu-
tional agreement on better law-making entered into force in 
April 2016 153. It sets out the commitments of the European 
Parliament, the Council and the Commission on many aspects 
regarding the preparation and implementation of Union leg-
islation. These include the performance of an impact assess-
ment of proposals and substantial amendments, monitoring 
and evaluation, the preparation of delegated acts and regula-
tory simplification. The 2016 Agreement replaces the previous 
agreement concluded in 2003 and the institutions’ 2005 com-
mon accord on impact assessment 154.

Better regulation training courses

In 2016-2017, the Commission overhauled its training cours-
es on better regulation. The objective was to promote aware-
ness of the better regulation tools and principles across the 
Commission  and  ensure  that  officials  who  carry  out  impact 
assessments  and  evaluations  are  sufficiently  well  equipped 
and  knowledgeable  to  enable  them  to  produce  high-quality, 
evidence-based reports. Better regulation training courses are 
now available in the interinstitutional catalogue on EU Learn, 
meaning that any Commission official can easily find and reg-
ister for any of the courses. Additionally, the courses are open 
to officials from the European Parliament and the Council. 

The revised approach to training on better regulation depicted 
below has three tiers (see figure below): 

150 https://ec.europa.eu/info/law/contribute-law-making_en
151 http://ec.europa.eu/citizens-initiative/public/welcome?lg=en
152 https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en
153 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2016:123:TOC
154 http://ec.europa.eu/smart-regulation/impact/key_docs/docs/ii_common_approach_to_ia_en.pdf

 | 45

an introductory course composed of an e-learning and a
class-based module;

Cost of operating a better 
regulation policy

one  course  for  each  of  the  better  regulation  ‘pillars’
(planning  &  validation,  evaluation,  impact  assessment
and stakeholder consultation);

It is estimated that between 150 and 280 full-time equivalent 
staff are deployed on better regulation-related activities and 
supported by external contractors providing services amount-
ing to between EUR 10 million to EUR 37 million annually.

•

•

•

advanced courses on specific issues noted as recurring
weaknesses  in  the  opinions  of  the  Regulatory  Scrutiny
Board (e.g. on quantification methods, intervention logic,
problem  definition  in  impact  assessments  and  subsidi-
arity).

Additionally, the Secretariat-General organises regular meet-
ings  and  exchanges  of  good  practices  with  the  networks  of 
desk officers responsible for impact assessments, evaluations, 
stakeholder consultation and REFIT in the directorates-general.

Other activities with other 
institutions and bodies

In the period covered by the stocktaking, the Secretariat-Gener-
al represented the Commission in 21 meetings of the Council’s 
Working Party on Competitiveness and Growth (better regula-
tion). Each rotating presidency also tends to organise a meet-
ing of representatives from the national ministries responsible 
for better regulation which the Commission also attends (Di-
rectors for better regulation). In addition, the Secretariat-Gen-
eral also represents the Commission at the Regulatory Policy 
Committee meetings of the OECD (typically twice a year).

There are also staff costs associated with operating the Reg-
ulatory Scrutiny Board with its seven full-time senior officials. 
A full-time secretariat serves the Board and consists of ap-
proximately 10 to 15 full-time (equivalent) members of staff. 
A further 3 full-time staff provide a secretariat to the REFIT 
Platform,  and  the  Commission  meets  the  expenses  of  the 
Platform meetings and the participants’ expenses. 

The ‘Have Your Say’ web portal cost approximately EUR 3 mil-
lion to create between 2015 and 2018.

Impact assessments 
and evaluations  
each year (*)

Full-time 
equivalent 
staff per year 
per file

Total 
full-time 
equivalent 
staff

60 impact assessments

1.0 – 2.0

60 - 120

70 evaluations 

1.0 – 2.0

70 - 140

(*) These estimates include officials working on the specific file 
and in their better regulation support units in the lead Commis-
sion department and officials participating in interservice groups 
and the Secretariat-General. An impact assessment or evaluation 
typically takes between 0.5 to 1.5 years to complete. 

Impact  assessments  and  evaluations 
each year

Fraction with 
supporting 
study

Cost of supporting study

Total cost

60 impact assessments

50% 

EUR 150 000 – 300 000

EUR 4.5 m – 9.0 m

70 evaluations (*)

80%

EUR 100 000 – 500 000

EUR 5.6 m – 28 m

(*) Studies supporting the evaluation of regulatory measures are typically in the range of EUR 100 000 to EUR 500 000. This excludes 
cross cutting studies supporting the evaluation of major expenditures like Horizon 2020, which are undertaken at a 4 year interval.

46 | Taking Stock of the Commission’s Better Regulation Agenda

OVERVIEW OF  
CONSULTATION  

ACTIVITIES IIA

X
E
N
N

1.

OVERVIEW OF CONSULTATION ACTIVITIES

The aim of the consultation was to assess how well the var-
ious  better  regulation  procedures  and  bodies  used  by  the 
Commission are working in practice and to what extent they 
contribute to achieving its better regulation policy objectives. 
The focus of the exercise was on the changes made by the 
Commission since May 2015.  

suggestions, 596 contributions remained. Of those, 433 (63%) 
came from individuals in their private capacity and 163 (27%) 
from professionals (businesses, NGOs, think tanks, research, 
academia, consultants, public and regional authorities) reply-
ing on behalf of an organisation. Respondents to the public 
consultation came from 15 Member States.  

Public consultation

On 17 July 2018, the European Commission launched an on-
line  public  consultation  entitled  Stocktaking  of  the  Commis-
sion’s  ‘better  regulation’  approach.  The  public  consultation 
was available in 23 EU languages and closed on 23 October 
2018. The Commission undertook communication campaigns, 
including via social media, in all EU languages to raise aware-
ness of the consultation. 

The public consultation was structured around the following 
themes: 

(1)  General questions: The Commission and better regulation

(2)

 Stakeholder consultation: Consulting the public and inter-
ested parties

(3) Evaluation and REFIT: Evaluating existing EU laws

(4)

Impact assessments: Assessing new Commission proposals

(5)

 Regulatory scrutiny: Scrutinising the quality of impact as-
sessments and evaluations

(6) Final questions on progress in the past and future.

Stakeholders submitted 42 position papers during the public 
consultation. Of these, 16 were not considered because they 
(a) duplicated another position paper in a different language;
(b) promoted a commercial product or service; (c) duplicated
a submission to the Taskforce on Subsidiarity; or (d) did not
relate to the Commission’s better regulation agenda.

Targeted consultation

In addition, there was a targeted consultation of the officials 
of the European Parliament, the Council, the Committee of the 
Regions (CoR), the European Economic and Social Committee 
(EESC). Member States were consulted via the Council Working 
Party on Competitiveness and Growth (COMPCRO). Additionally, 
5 Member States (Estonia, Germany, Ireland, Poland and Spain) 
sent in contributions after a discussion in the Council’s Work-
ing Group on Competitiveness and Growth (COMPCRO). Some 
Member States also contributed to the public consultation. 

There were 244 Commission officials who were interviewed.  
These interviews targeted officials who had written an evalu-
ation and/or impact assessment. Officials responsible for bet-
ter regulation in the Commission discussed the results of all 
consultation activities at a dedicated workshop on 18 January 
2019 with approximately 80 participants.  

The Commission received 626 responses to the public consul-
tation. After applying the rules for moderating feedback and 

In parallel, the REFIT Platform launched its own survey of its 
members on whether the Platform had served its purpose and 
had contributed to the Commission’s better regulation agenda. 

 | 47

The  Platform  circulated  the  survey  on  2  July  2018  and  re-
ceived 34 contributions (20 from members of the government 
group and 14 from the stakeholders’ group). It delivered its 
opinion on 14 March 2019  155.

Feedback on the roadmap

The Commission published the roadmap 156 for the stocktak-
ing exercise on the ‘Have Your Say’ web portal for stakeholder 
engagement. During the four-week feedback period, 6 replies 
were received through the portal and 1 by email. These con-
tributions are published on the web alongside the roadmap. 

Two anonymous individuals  asked questions and made sug-
gestions about the stocktaking process. For example, one in-
dividual suggested extending the scope of the exercise to the 
co-legislators and proposed involving independent experts to 
make the results more credible. The other individual wondered 
whether it was the right time to take stock. According to this 
person, it would be desirable to study the effects on the quality 
of legislation but it might be too early to see any at this stage. 

The  submissions  from  associations  (Association  of  German 
Chambers of Industry and Commerce, the European Crop Pro-
tection Association and the German Confederation of Skilled 
Crafts and from the Maltese national authorities offered a pre-
view of the contributions they sent in response to the public 
consultation and which are described in detail below. Overall, 
they welcomed the visible progress made with the Commis-
sion’s better regulation policy and offered suggestions on how 
to improve it further. 

2.

OECD REGULATORY POLICY OUTLOOK 2018

Every 3 years, the OECD publishes a comparative assessment 
of member countries’ better regulation systems. The purpose 
of the OECD report is to track and measure the progress of 
OECD countries (and the progress of the European Commis-
sion) in their regulatory practices and their implementation of 
the OECD’s 2012 recommendations for regulatory policy  157. 
The 2018 outlook reflects the situation at the end of 2017 158. 

The OECD’s assessment focuses on three dimensions of reg-
ulatory policy practices, namely stakeholder engagement, the 
impact assessment and ex post evaluations. For each of these 
dimensions,  the  study  assigns  scores  for  the  methodology, 
oversight and quality control, the systematic use and trans-
parency. The report applies a methodology of composite in-
dicators constructed using self-reported data, which is quality 
checked by the OECD.  

With the 2018 outlook, it is possible to measure the improve-
ments made under the Juncker Commission that include the 
May  2015  reforms  and  subsequent  adjustments  made  in 
the summer of 2017. Already before these reforms, back in 
2014, the EU (European Commission) was performing well in 
the three dimensions analysed: stakeholder engagement, the 
impact assessment and ex post evaluations. The Commission 

was a strong performer for the impact assessment and eval-
uations, but still had the potential to improve on stakeholder 
consultation. 

The 2018 report shows that the Commission’s 2015 reforms 
have  brought  significant  improvements.  The  Commission  is 
now ranked first in the OECD for stakeholder engagement, a 
reflection of the Commission’s introduction of feedback mech-
anisms for roadmaps, inception impact assessments, adopted 
proposals,  draft  delegated  acts  and  implementing  acts  and 
public consultations accompanying impact assessments and 
evaluations. 

On impact assessments, the Commission further refined and 
improved  its  policy  and  kept  the  third-placed  ranking  it  had 
already  achieved  in  2014.  The  Commission  has  further  im-
proved its approach on evaluations and has improved its rank-
ing to third place.

Overall, the Commission’s regulatory policy now ranks among 
the very best in the OECD with no other country or associated 
country scoring higher across the three dimensions of better 
regulation. 

155 REFIT Platform opinion XXII.10.a “REFIT Platform Survey – Future prospects”, adopted on 14 March 2019: https://ec.europa.eu/info/
files/refit-platform-recommendations-horizontal-issues-xxii10a-refit-platform-survey-future-prospects_en
156 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-2332204_en
157 http://www.oecd.org/gov/regulatory-policy/2012-recommendation.htm
158 http://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018-9789264303072-en.htm

48 | Taking Stock of the Commission’s Better Regulation Agenda

3.

LITERATURE REVIEW

The  Directorate-General  Joint  Research  Centre  undertook 
a  review  of  the  academic  literature  to  support  the  current 
stocktaking exercise and has published the results 159. Looking 
at better regulation generally and at the specific tools used 
by  the  Commission,  the  Joint  Research  Centre  focused  on 
peer-reviewed and grey literature published since 2015. The 
results have been incorporated in the preceding sections and a 
short summary of the main findings is presented below.

The literature review looked at more than 100 papers. These 
covered  many  different  issues,  given  the  different  interpre-
tations of better regulation. It is difficult to draw overarching 
conclusions because relatively little time has elapsed since the 
Commission introduced major changes in 2015. 

Generally, the literature welcomes the Commission’s stronger 
commitment  to  evidence-based  policymaking  and  the  guid-
ance  it  has  provided  in  the  better  regulation  guidelines  and 
toolbox.  The  literature  highlights  the  all-encompassing  ap-
proach taken by the Commission in covering the whole policy 
cycle. However, the review notes that this guidance still leaves 
room for discretion on how to carry out analyses (especially 
the quantification of impacts) that adversely affect objectiv-
ity. More (standardised) guidance and support as well as im-
proved in-house expertise and external peer review have been 
suggested to increase the quality and objectiveness of impact 
assessments and evaluations. In this respect, the review also 
highlights  the  value  of  the  ‘evaluate  first’  principle  and  the 
need for impact assessments to build better upon each other, 
particularly in terms of planning/scheduling.

and studies as well as draft reports. Additionally, there were 
concerns  about  how  the  EU’s  overarching  objectives,  as  en-
shrined in the treaties, are taken into account in the assess-
ments. 

Regarding  public  consultations,  the  literature  welcomes  the 
significantly increased opportunities for participating in EU pol-
icymaking.  However, some authors questioned whether the 
quality  of  the  feedback  received  justified  the  high  workload 
for participants and the Commission. There is a perceived lack 
of transparency on how the Commission uses consultation re-
sponses. Moreover, authors questioned whether the question-
naires succeed in collecting evidence from people who would 
otherwise not be involved. 

The review noted that the REFIT Platform was seen as focus-
ing too narrowly on cost reduction rather than cost-efficiency 
(cost per unit benefit). Furthermore, there were concerns that 
the Platform does not exclude political considerations and that 
it may support a deregulation agenda. 

On  the  Regulatory  Scrutiny  Board,  the  review  recorded  pro-
posals to expand its scope and activities: first, intervene ear-
lier in the preparatory processes; second, become more inde-
pendent; third, consolidate its expertise in a variety of policy 
fields. Some contributions regretted that the Board is only an 
in-house body, also meaning that the public and stakeholders 
cannot hold the Commission (judicially) accountable to its bet-
ter regulation principles. 

The review highlights several criticisms. Evidence-based policy-
making is undermined when proposals are not supported by an 
impact assessment. Impact assessments often seem to justi-
fy a predetermined policy option. In this context, authors also 
called  for  more  transparency  by  publishing  underlying  data 

Some  authors  saw  the  Interinstitutional  Agreement  on  Bet-
ter Law-Making as an essential part of better regulation but 
regretted that it remains only partially implemented. Others 
viewed it as an attempt by the Commission to wield greater 
influence  over  policymaking  and/or  to  share  the  blame  with 
the co-legislators for poor quality legislation. 

159 Listorti G., Basyte Ferrari E., Acs S., Munda G., Rosenbaum E., Paruolo P., Smits P. (2019). The debate on the EU Better Regulation 
Agenda: a literature review, EUR, Publications Office of the European Union, Luxembourg, 2019, ISBN 978-92-76-00840-8, doi:10. 
2760/46617, JRC116035

 | 49

4.

PUBLIC CONSULTATION

This section presents the overall results per question, as well 
as a breakdown of replies according to the type of respondent 

(i.e. individuals, professionals) in order to make the views of 
the different stakeholder groups more visible.

4.1.

GENERAL QUESTIONS: THE COMMISSION 
AND BETTER REGULATION

Q1. Are you informed about the Commission’s plans early enough to be able to take part in the policy-
making process?

Out of 596 respondents, 184 (31%) agree that that they are 
fully or mostly informed early enough to take part in the Com-
mission’s policymaking process; whereas 147 (25%) of the 596 
respondents argue that this is sometimes the case, and 253 
respondents (42.4%) said they were not informed early enough. 

Public  authorities  and  businesses  said  most  frequently  that 
they are fully or mostly informed early enough in the process 
(41  out  of  74  and  17  out  of  23;  55.4%  and  73.9%  respec-
tively). In contrast, the majority of the individuals (238 out of 
433, 55.0%) responded that they are not usually or not at all 
informed early enough. 

Are you informed about the Commission’s plans early enough to be 
able to take part in the policy-making process?

148

147

130

120

123

118

All  (596)

as an individual in your
personal capacity  (433)

in your professional
capacity or on behalf of an
organisa�on  (163)

80

68

93

54

36

27

9

10

5

12

7

5

Yes, fully

Yes, mostly

Some�mes

No, not usually

No, not at all

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

50 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
Breakdown of answers given in a professional capacity:

Are you informed about the Commission’s plans early enough to 
be able to take part in the policy-making process?

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

50

45

40

35

30

25

20

15

10

5

0

38

15

12

8

7

3

2

2

1

1

Public authori�es  (23)

Businesses  (74)

Non-governmental organisa�on,
pla�orm or network  (26)
Consultancies and academia  (19)

Other  (21)

25

13

6

6

4

7

2

1

0

0

4

1

0

0

0

2

1

1

1

0

Yes, fully

Yes, mostly

Some�mes

No, not usually

No, not at all

Don't know

Q2. Are you satisfied with how the Commission involves members of the public, businesses, 
non-governmental organisations and other interest groups?

Approximately  half  of  the  individual  respondents  (53%)  are 
dissatisfied or very dissatisfied with the way that the Commis-
sion involves members of the public, businesses, non-govern-

mental organisations and other interest groups. Out of 163 
professionals, 64 (39%) are of the same view. Hence, individu-
als have a more negative opinion than professionals. 

Are you sa�sﬁed with how the Commission involves members of 
the public, businesses, non-governmental organisa�ons and other 
interest groups?

All  (596)

178

121

116

109

as an individual in your
personal capacity  (433)

in your professional
capacity or on behalf of an
organisa�on  (163)

133

120

82

88

38

45

57

20

16

4

29

17

12

7

Yes, very sa�sﬁed

Yes, sa�sﬁed

Neither sa�sﬁed
nor dissa�sﬁed

No, dissa�sﬁed

No, very
dissa�sﬁed

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

 | 51

 
 
 
 
Q3. Does the Commission provide enough evidence (e.g. evaluations, impact assessments) to back up 
its proposals?

The opinions whether the Commission proposals are backed 
by enough evidence are divided. 147 respondents (24.7%) in-
dicated that there was enough evidence, while 164 (27.5%) 

said that there was not. The largest group, 225 respondents 
(37.8%), found that the proposals were partially well backed 
by evidence. 

Does the Commission provide enough evidence (e.g. evalua�ons, 
impact assessments) to back up its proposals?

225

All  (596)

as an individual in your
personal capacity  (433)

in your professional 
capacity or on behalf of 
an organisa�on (163)

130

100

127

98

105

83

17

15

2

30

22

59

54

60

54

5

6

Yes, always

Yes, mostly

Par�ally

No, not usually

No, not at all

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

230

180

130

80

30

-20

52 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
Q4. Does the Commission take environmental and social impacts sufficiently into account when putting 
forward policy proposals (in addition to economic impacts)?

Respondents agreed almost equally that the Commission did 
or  did  not  consider  environmental  and  social  impacts  suffi-
ciently. Out of 596 respondents, 171 (28.7%) thought those 
impacts  received  sufficient  attention,  while  170  (28.5%)  did 
not. The largest group of respondents (188 out of 596, 31.5%) 
thought that the Commission considers environmental and so-
cial impacts partially.

Among professionals, non-governmental organisations tended 
to think that social and environmental impacts are not suffi-
ciently considered, while businesses tended to be of the oppo-
site view. Public authorities hold the middle. 

Does the Commission take environmental and social impacts 
suﬃciently into account when pu�ng forward policy proposals (in 
addi�on to economic impacts)?

188

141

100

41

128

60

116

85

30

24

6

All  (596)

as an individual in your
personal capacity  (433)

in your professional capacity
or on behalf of an
organisa�on  (163)

54

49

31

5

67

47

20

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

Yes, always

Yes, mostly

Par�ally

No, not usually

No, not at all

Don't know

Breakdown of answers given in a professional capacity:

Does the Commission take environmental and social impacts 
suﬃciently into account when pu�ng forward policy proposals (in 
addi�on to economic impacts)?

Public authori�es  (23)

Businesses  (74)

Non-governmental organisa�on,
pla�orm or network  (26)
Consultancies and academia  (19)

Other  (21)

26

25

3

0

0

2

1

5

6

3

1

12

9

9

5

12

10

5

3

1

10

5

2

2

1

3

1

1

0

0

Yes, always

Yes, mostly

Par�ally

No, not usually

No, not at all

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

50

45

40

35

30

25

20

15

10

5

0

 | 53

 
 
 
 
Q5. Does the Commission take subsidiarity and the role of national, regional, and local authorities suffi-
ciently into account when putting forward policy proposals?

More respondents agreed (192 out of 596, 32.2%) than dis-
agreed (161, 27.0%) that the Commission takes subsidiarity 
and the role of national, regional, and local authorities suffi-

ciently into account. A group of approximately the same size 
as the previous two (179, 30.3%) thought that the Commis-
sion only does so partially.

Does the Commission take subsidiarity and the role of na�onal, 
regional, and local authori�es suﬃciently into account when 
pu�ng forward policy proposals?

179

All  (596)

159

106

115

as an individual in your
personal capacity  (433)

in your professional capacity
or on behalf of an
organisa�on  (163)

88

69

64

73

71

53

64

46

33

26

7

19

18

2

Yes, always

Yes, mostly

Par�ally

No, not usually

No, not at all

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

54 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
Q6. Are you satisfied with the Commission’s efforts to simplify existing EU laws and to reduce costs 
where possible (REFIT)?

Out  of  538  respondents,  151  (28%)  were  satisfied  or  very 
satisfied with the Commission’s efforts to simplify existing EU 
laws and reduce costs where possible, while 220 (40%) were 

not. The remaining 167 respondents (28%) were partially sat-
isfied with the Commission’s efforts. 

Are you sa�sﬁed with the Commission’s eﬀorts to simplify exis�ng 
EU laws and to reduce costs where possible (REFIT)?

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

120

95

132

167

104

63

31

28

3

25

All  (596)

as an individual in your
personal capacity  (433)

in your professional capacity
or on behalf of an
organisa�on  (163)

86

88

79

46

58

41

9

17

Yes, very sa�sﬁed

Yes, sa�sﬁed

Neither sa�sﬁed
nor dissa�sﬁed

No, dissa�sﬁed

No, very
dissa�sﬁed

Don't know

 | 55

 
 
4.2.

PUBLIC CONSULTATIONS: CONSULTING 
THE PUBLIC AND INTERESTED PARTIES

Q7.  Are roadmaps and inception impact assessments useful to help you prepare your participation in 
the policymaking process?

Approximately 20% (102 of 556) of all respondents are not 
familiar with roadmaps and inception impact assessments. Of 
those who said they were familiar with them, approximately 
half  (226  out  of  494,  45.7%)  find  roadmaps  and  inception 
impact  assessments  entirely  or  mostly  useful  for  preparing 
their participation in the policymaking process. 

More than half the professionals thought that the roadmaps 
and inception impact assessments were (very) helpful, while 
another quarter deemed them partially helpful. Individual re-
spondents were less positive.

Are roadmaps and incep�on impact assessments useful to help you 
prepare your par�cipa�on in the policy-making process?

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

56

40

16

All  (596)

as an individual in your
personal capacity  (433)

in your professional
capacity or on behalf of an
organisa�on  (163)

102

89

170

100

70

138

94

87

67

44

43

43

20

13

0

Yes, fully

Yes, mostly

Par�ally

No, mostly not

No, not at all

Don’t know

56 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
Q8. Are you satisfied with the following opportunities to contribute to the policymaking process? 

With the exception of public consultations, a significant num-
ber  of  respondents  (from  18.8%  to  25%  depending  on  the 
opportunity)  was  not  aware  of  the  various  opportunities  to 
contribute to policymaking.

The proportion of respondents who are satisfied with the op-
portunities to give feedback to inception impact assessments 
and roadmaps and take part in public consultations  (31.7% 
and 40.0% respectively) is higher than the proportion of those 
who are dissatisfied (21.1% and 27.5% respectively). Howev-
er, slightly more participants were dissatisfied than satisfied 
with the opportunities to comment on draft implementing and 
delegating  acts  (27.0%  versus  25.2%)  and  legislative  pro-
posals adopted by the College (29.2% versus 28.0%) as well 
as  the  opportunity  to  flag  legislation  needing  improvement 
(27.2% versus 24.8%). Across the five questions on participa-
tion opportunities, between 17.4% and 23.3% of respondents 
were neither satisfied nor dissatisfied. 

Respondents (mainly individuals) to the open questions made 
a strong call to the European Commission to reach out more 
to increase awareness of its efforts under the better regula-
tion agenda. Respondents stressed that the outreach efforts 
on regulatory developments in the EU have to find their way 
into the mainstream media, because most people do not fol-
low EU social media accounts. According to respondents, the 
communication is also not tailored to Member States and the 
members of the public there. National and regional public au-
thorities should play a more prominent role in informing the 
public. 

In response to the open questions, several professionals point-
ed out that local and regional and local public authorities as 
well as small and medium enterprises (SMEs) should be con-
sulted better.

Are you satisfied with the following opportunities to contribute to the policy-making process?

Opportunity to comment on roadmaps and inception impact
assessments

Public consultations

Opportunity to comment on draft delegated and implementing
acts

Opportunity to comment on Commission legislative proposals

Opportunity to suggest ways to improve existing laws (Lighten
the Load)

47

47

70

70

44

44

41

41

46

46

0

50

142

142

139

139

79

79

47

30

47

30

112

112

166

166

111

111

101

101

63

63

23

23

62

62

106

106

126

126

102

102

100

128

128

113

113

95

95

101

101

66

66

39

39

73

73

29

29

118

118

113

113

104

104

200

150

80

80

82

82

33

33

149

149

250

300

350

400

450

500

550

600

650

Values

Yes, very satisfied
I am not aware of this tool / opportunity

Yes, satisfied

Neither satisfied nor dissatisfied

No, dissatisfied

No, very dissatisfied

Don't know

Highcharts.com

 | 57

Q9. Are you satisfied with the following aspects of the Commission’s public consultations?

Respondents had rather positive opinions on various charac-
teristics  of  public  consultations.  The  availability  of  different 
language versions, the length of the consultation period, and 
the opportunity to make relevant comments and provide sup-
porting  material  were  the  aspects  with  which  respondents 
were most satisfied (54.2%, 47.8% and 44.3% (very) satisfied 
respectively). 

Between  40.8%  and  36.1%  of  the  respondents  were  (very) 
satisfied with the length, clarity and neutrality of the question-
naires. While the percentage of respondents who were (very) 
dissatisfied with these six aspects of public consultations was 
smaller, it is still sizeable (9.7% to 17.35%). Several individ-
uals  and  organisations/professionals  responded  in  the  open 
text questions that questionnaires should be shorter, clearer, 
more neutral, less biased and less geared towards the desired 
option. 

Are you satisfied with the following aspects of the Commission's public consultations?

Clarity of questionnaires

Length of questionnaires

Neutrality of questionnaires

Opportunity to make relevant comments or provide supporting
material

Availability of different language versions

Length of consultation period (12 weeks)

50

50

39

39

60

60

74

74

75

75

123

123

193

193

184

184

155

155

122

122

170

170

86

86

45

38

45

38

73

73

25

43

25

43

125

125

91

91

55

55

48

48

190

190

211

211

200

200

138

138

60

60

35

37

35

37

75

75

138

138

49

32

49

32

55

55

52

23

35

52

23

35

62

62

62

62

62

62

62

62

62

62

62

62

0

50

100

150

200

250

300

350

400

450

500

550

600

650

Values

Yes, very satisfied

Yes, satisfied

Neither satisfied nor dissatisfied

No, dissatisfied

No, very dissatisfied

Don't know

No Answer

Highcharts.com

58 | Taking Stock of the Commission’s Better Regulation Agenda

Q10. Are you satisfied with how the Commission reports on the results of its public consultations and 
the other opportunities to comment?

Out of 596 respondents, 225 (37.8%) were (very) dissatisfied 
with the way the Commission reports on the results of its public 
consultations and feedback mechanisms.  Another large share 
was neither satisfied nor dissatisfied (169 respondents, 28.4%). 
Public authorities who responded tended to be more satisfied 
than businesses and non-governmental organisations. 

Answering the open questions, respondents (both individuals 
and organisations/professionals) asked that reports on the re-
sults of consultation activities be systematically published (in 
timely fashion).

Are you sa�sﬁed with how the Commission reports on the results 
of its public consulta�ons and the other opportuni�es to 
comment?

169

113

146

90

All  (596)

as an individual in your
personal capacity  (433)

in your professional
capacity or on behalf of an
organisa�on  (163)

56

56

79

71

70

58

8

12

105

76

29

27

25

2

Yes, very sa�sﬁed

Yes, sa�sﬁed

Neither sa�sﬁed
nor dissa�sﬁed

No, dissa�sﬁed

No, very
dissa�sﬁed

Don't know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

200

180

160

140

120

100

80

60

40

20

0

 | 59

 
 
Breakdown of answers given in a professional capacity:

Are you sa�sﬁed with how the Commission reports on the results of 
its public consulta�ons and the other opportuni�es to comment?

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

40

35

30

25

20

15

10

5

0

Public authori�es  (23)

Businesses  (74)

25

29

Non-governmental organisa�on,
pla�orm or network  (26)
Consultancies and academia  (19)

Other  (21)

14

8

4

2

1

8

8

9

6

5

12

10

4

2

2

0

0

0

1

0

0

1

0

Yes, very sa�sﬁed

Yes, sa�sﬁed

Neither sa�sﬁed
nor dissa�sﬁed

No, dissa�sﬁed

No, very
dissa�sﬁed

6

2

2

1

1

Don't know

4.3.

EVALUATIONS AND REFIT: EVALUATING 
EXISTING EU LAWS

Q11. Are you satisfied with the following aspects of the Commission’s evaluations? 

The opinions on the various elements of the evaluations carried 
out by the Commission were mixed. Again, professionals tended 
to be a bit more positive than individuals. Additionally, a sizea-
ble group of 95 and 118 respondents (15.9% - 19.8%) did not 
feel they were capable of judging the quality of the evaluations. 

Respondents suggested that legislation should be given time to 
be implemented and take effect before initiating evaluations. 
Evaluations often require assumptions to be made to quantify 
costs and benefits, which have not yet materialised.

Most of the replies from respondents are more or less equally 
divided between satisfied, neither satisfied nor dissatisfied and 
dissatisfied. Only a small number said they were very satisfied 
(3.7% - 5.5%), while 10.2% to 15.4% were very dissatisfied.

Additionally,  respondents  called  for  more  transparency  in  the 
transposition of directives into national law and in the manner 
in which they are implemented. The evaluations should be more 
sensitive to divergences in the implementation of legislation in 
Member States. 

In  response  to  the  open  questions,  several  respondents  said 
that the evaluation results needed to be utilised better when 
performing  impact  assessments.  Some  industry  representa-
tives asked for stricter adherence to the ‘evaluate first’ principle. 

Some respondents argued that evaluations should be done by 
the European Parliament and the Member States, i.e. that the 
Commission  should  not  have  this  responsibility.  Others  sug-
gested relying less on external contractors to do evaluations. 

60 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
Are you satisfied with the following aspects of the Commission's evaluations?

Transparent assessment of what works and what doesnʼt

Usefulness of evaluations for policy-making

Transparent information about all relevant impacts (benefits and
costs) of existing legislation

Focus on simplification and cutting unnecessary costs (ʻREFIT
programmeʼ)

22

22

24

24

24

24

33

33

133

133

148

148

109

109

126

126

130

130

148

148

128

128

128

128

136

136

108

108

148

148

104

104

75

75

61

61

92

92

87

87

100

100

107

107

95

95

118

118

0

50

100

150

200

250

300

350

400

450

500

550

600

650

Values

Yes, very satisfied

Yes, satisfied

Neither satisfied nor dissatisfied

No, dissatisfied

No, very dissatisfied

Don't know

Highcharts.com

Q12. Is the REFIT Platform effective in identifying areas where legislation can be simplified and unnec-
essary costs cut while preserving policy objectives?

Many  of  the  respondents  were  not  sufficiently  aware  of  the 
REFIT Platform. Out of 163 professionals, 45 (28%) did not feel 
they  were  able  to  assess  the  REFIT  Platform’s  effectiveness. 
The same was true for  177 (40%) of the 433 individuals who 

replied.  Of  the  19  respondents  from  consultancies  and  aca-
demia, 10 (53%) could not provide a response to this question 
nor could 9 (approximately 40%) of the 23 public authorities.

Is the REFIT pla�orm eﬀec�ve in iden�fying areas where legisla�on 
can be simpliﬁed and unnecessary costs cut while preserving policy 
objec�ves?

222

177

Public authori�es  (23)

as an individual in your
personal capacity  (433)

in your professional
capacity or on behalf of an
organisa�on  (163)

153

96

57

62

46

52

38

45

16

14

92

64

28

15

12

3

Yes, fully

Yes, mostly

Par�ally

No, not usually

No, not at all

Don’t know

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

250

200

150

100

50

0

 | 61

 
 
Of the 274 who did answer the question, 260 (70%) agreed that 
the  Platform  is  at  least  partially  effective  in  identifying  areas 
where legislation can be simplified and unnecessary costs cut. 

opinions and more transparency on how recommendations are 
implemented. 

Responding  to  the  relevant  open  question,  respondents  indi-
cated that they would like easier access to REFIT reports and 

Regional  or  local  authorities  provided  strong  support  for  the 
continuation of the REFIT Platform.

Breakdown of answers given in a professional capacity:

Is the REFIT pla�orm eﬀec�ve in iden�fying areas where 
legisla�on can be simpliﬁed and unnecessary costs cut while 
preserving policy objec�ves? 

s
t
n
e
d
n
o
p
s
e
r

f
o
r
e
b
m
u
N

40

35

30

25

20

15

10

5

0

36

Public authori�es  (23)

Businesses  (74)

Non-governmental organisa�on,
pla�orm or network  (26)
Consultancies and academia  (19)

Other  (21)

15

7

2

1

0

0

0

4

2

0

8

7

3

3

8

4

0

3

1

7

5

1

1

0

12

9

10

8

6

Yes, fully

Yes, mostly

Par�ally

No, not usually

No, not at all

Don’t know

62 | Taking Stock of the Commission’s Better Regulation Agenda

 
 
4.4.

IMPACT ASSESSMENTS: ASSESSING NEW 
COMMISSION PROPOSALS

Q13. Are you satisfied with the following aspects of the Commission’s impact assessments?

A large percentage of the respondents (14.9% to 20.1%) did 
not  know  whether  they  were  or  were  not  satisfied  with  the 
Commission’s  impact  assessments.  Of  those  who  did  feel 
they could answer the question, the largest group (24.2% to 
27.9%) said they were neither satisfied nor dissatisfied. With 
223 respondents (very) dissatisfied (37.4%), there was most 
dissatisfaction  with  the  transparency  on  policy  alternatives 
and  their  impacts.  Around  170  participants  (28.5%)  were 
(very)  dissatisfied  with  each  of  the  other  three  characteris-
tics. While only a few respondents were very satisfied (4.7% 
to 5.7%) with the impact assessments’ various characteristics, 
18.0% to 21.8% were satisfied. Respondents saw the impact 
assessments’  usefulness  for  decision-making  slightly  more 

positively than the quality of the assessments. 

Professionals were on average neither satisfied nor dissatis-
fied with the impact assessments, except for transparent in-
formation on all relevant impacts (75 out of 168, 44.6%). In 
addition, businesses were not satisfied with the assessment of 
the potential for simplifying legislation (29 out of 74, 39.2%).

Professionals  responding  to  the  open  questions  very  often 
flagged that too many pieces of legislation came without an 
impact  assessment.  Respondents  said  that  it  is  not  always 
transparent  why  some  proposals  are  subject  to  impact  as-
sessments while others are not.

 | 63

Some respondents indicated that the Interinstitutional Agree-
ment  on  Better  Law-Making  is  not  fully  observed.  They  ex-
pressed  disappointment  that  the  European  Parliament  and 
Council seem to make little use of impact assessments and 
do not assess their amendments. 

social dialogue, minorities) was often voiced. 

Professionals  very  often  criticise  the  varying  analytical  and 
methodological  quality  across  impact  assessments  and  the 
low quality of the underlying data. 

Respondents felt that best practices on transparency were not 
consistently followed, so that, for example, the analysis pre-
sented, including the choice of options, was not transparent 
and comprehensible. The criticism was diverse, covering the 
whole range: there was the feeling that political considerations 
outweighed all other input, consultation questions were found 
to be biased or too limited, not all information was published, 
etc. Professionals added that the use and presentation of nu-
merical models often was detrimental to transparency. 

Regarding  subsidiarity,  some  respondents  find  the  current 
assessment overly legalistic and formalistic. They claim that 
the added value of action at EU level needs to be analysed 
based on evidence. Professionals said that harmonisation and 
cross-border activity should not be overused as arguments for 
justification. In this context, the remark was made that more 
than 20 different approaches do not necessarily imply a need 
for harmonisation; rather it could be evidence that the Mem-
ber States have successfully tackled the problem.

Individuals and professionals replying to the open questions 
are of the opinion that the scope of the impacts assessed is 
too limited, focusing too much on economic issues, big indus-
try and other large stakeholders, in particular. The wish to look 
rather at society as a whole (e.g. on environmental impacts, 
effects on SMEs/micro-businesses, impacts on individuals/con-
sumers,  health,  fundamental/basic  rights,  inequality/poverty/

Respondents  Respondents  proposed  various  suggestions  on 
how to be better involved. Moreover, local and regional lev-
els of government should better be taken into account. They 
said  that  a  territorial  and  urban  impact  assessment  should 
be done, EU-level action should be better justified, and there 
should  be  a  closer  examination  of  what  measures  Member 
States have taken. 

4.5.

REGULATORY SCRUTINY: SCRUTINISING 
THE QUALITY OF IMPACT ASSESSMENTS 
AND EVALUATIONS

Q14. Please indicate the level of your agreement with each of the following statements regarding regu-
latory scrutiny 

Among individuals, 320 (74%) out of 433 said that they were 
not familiar with the Regulatory Scrutiny Board (the Board) or 
barely so, whereas 64 (39%) out of 163 professionals stated 
the same. Hence, awareness of the Board is very low. 

Of  those  who  did  know  about  regulatory  scrutiny,  an  over-
whelming majority thought that the Board added value to the 
regulatory process (89 out of 103, 86.4%). Additionally, more 
respondents had a positive opinion of the Board’s character-
istics than a negative opinion. On the two questions whether 
there was sufficient regulatory scrutiny and whether the Board 
was impartial, respondents were evenly split. Moreover, pro-
fessionals are more likely to have positive opinions about the 
Board than individuals are in their private capacity. 

It emerges from the answers to the open questions that re-
spondents clearly do not see the Board as a body exercising 
purely internal quality control. Given the absence of a similar 
body elsewhere in the legislation process, for example at the 
level of co-legislators, the Board is expected to have a much 
larger role in the policymaking process. Several respondents 
proposed giving it more independence by establishing a sec-
retariat  for  the  Board  independent  from  the  Commission  or 
by recruiting all members externally. Additionally, respondents 
suggested strengthening the mandate to allow the Board to 
assess inception impact assessments and roadmaps as well 
as more evaluations.

64 | Taking Stock of the Commission’s Better Regulation Agenda

Please indicate the level of your agreement with each of the following statements:

I am familiar with the Regulatory Scrutiny Board.

There is sufficient regulatory scrutiny of EU impact assessments
and evaluations.

Regulatory scrutiny adds value to the overall regulatory process.

The Regulatory Scrutiny Board is impartial.

The Regulatory Scrutiny Board opinions are informative.

The Regulatory Scrutiny Board opinions promote evidence-based
policies.

The Regulatory Scrutiny Board increases the quality of
Commission proposals.

The Regulatory Scrutiny Board increases transparency of
Commission policy-making.

The Regulatory Scrutiny Board increases accountability of
Commission policy-making.

4

4

7

7

7

7

10

10

9

9

10

10

10

10

42

42

47

47

36

36

35

35

53

53

30

30

63

63

48

48

54

54

53

53

53

53

57

57

44

44

18

18

11

11

24

24

6

6

11

11

3

3

48

48

42

42

13

13

20

20

6

6

26

26

22

22

4

4

3

3

30

30

6

6

24

24

6

6

65

65

50

50

58

58

57

57

47

47

51

51

11

11

14

14

18

18

13

13

17

17

17

17

18

18

17

17

19

19

0

20

40

60

80

100

120

140

160

180

Values

I strongly agree

I tend to agree

I tend to disagree

I strongly disagree

Don't know

No Answer

Highcharts.com

 | 65

4.6.

FINAL QUESTIONS ON PAST AND FUTURE 
PROGRESS 

Q15. Please select up to three areas where the Commission has made (relatively more) progress since 
2014.

The three areas of better regulation where respondents saw the 
most progress since 2015 are mainly public consultation, trans-
parency of the policymaking process and impact assessments. 

Businesses observed, in particular, progress in the scrutiny of 
legislative proposals.  

Please select up to three areas where the Commission has made (relatively more) progress since 2014, if any.

Consultation

41.44%

41.44%

Transparency of the policy-making process

No Answer

Impact assessment

Scrutiny of regulatory proposals

How the different ʻbetter regulationʼ tools work together

Evaluation

Other

7.05%

7.05%

29.19%

29.19%

28.69%

28.69%

21.64%

21.64%

17.95%

17.95%

16.11%

16.11%

15.77%

15.77%

0

50

100

150

200

250

300

350

400

450

500

550

600

Total Respondents

66 | Taking Stock of the Commission’s Better Regulation Agenda

Q16. Please select up to three areas where the Commission should make improvements in the future.

The opinions of private and professional respondents diverge 
on  future  improvements.  While  individuals  saw  further  im-
provement necessary in areas where most progress has been 
made  —  i.e.  consultation,  transparency  and  impact  assess-
ments — professionals would like to see also more progress 
on evaluations. 

Please select up to three areas where the Commission should make improvements in the future.

Transparency of the policy-making process

54.03%

54.03%

Consultation

Impact assessment

How the different ʻbetter regulationʼ tools work together

Evaluation

Scrutiny of regulatory proposals

40.60%

40.60%

38.26%

38.26%

32.38%

32.38%

29.19%

29.19%

28.19%

28.19%

Other

No Answer

9.73%

9.73%

7.55%

7.55%

0

50

100

150

200

250

300

350

400

450

500

550

600

Total Respondents

4.7.

CONCLUSIONS OF THE PUBLIC 
CONSULTATION QUESTIONNAIRE

Professionals tended to be more positive about the Commis-
sion’s better regulation efforts than individuals responding in 
a private capacity. 

were overlooked by the analyses. Like civil society organisa-
tions, they argued that the economic focus is too strong and 
neglects issues such as (public) health, inequality and the cli-
mate. 

Individual  respondents  often  indicated  that  they  found  the 
decision-making  process  with  its  better  regulation  elements 
confusing, did not find it transparent or were simply unaware 
of its elements, especially REFIT and impact assessments. 

The new web portal Have Your Say was welcomed by several 
respondents,  but  consultation  and  transparency  remain  the 
top items that respondents would like to see further improved. 
Additionally,  many  individuals  had  the  impression  that  they 

Professionals  considered  themselves  better  informed  about 
the better regulation agenda and the opportunities to partic-
ipate  than  individual  respondents  did.  They  made  proposals 
to  strengthen  several  elements  of  better  regulation  and  to 
increase the opportunities for them to participate, and urged 
the Commission, the European Parliament and the European 
Council to assess the impacts of every proposal and amend-
ment. 

 | 67

4.8.

POSITION PAPERS

Overall, stakeholders welcomed the progress that the Com-
mission  has  made  on  better  regulation  since  2015.  They 
especially  appreciated  the  increased  possibilities  for  partici-
pation. In their position papers, they call for continued efforts 
and make many suggestions to further improve and elaborate 
the better regulation system. To be able to advocate better 
their interests, stakeholders proposed further improving par-
ticipation, increasing transparency and de-politicising the bet-
ter regulation system. Additionally, NGOs and social partners 
called for an overhaul to put the public interest rather than the 
economy into the focus. National and regional governments 
as well as businesses supported the economic orientation and 
renewed their call to pay close attention to the regulatory bur-
den placed on each of them. At the same time, two members 
of  the  business  community  worried  about  better  regulation 
leading  to  deregulation.  Finally,  members  of  the  research 
community offered their specific expertise. 

For more detail, see the web page where all position papers 
have been published 160.

Public authorities

In alphabetical order, the national governments of Denmark, 
Finland and the United Kingdom as well as the organisation 
representing the interests of Danish local governments (LGDK) 
submitted relevant position papers. In a separate document, 
the national government of Malta provided extended answers 
to the open questions in the public consultation online. 

These public authorities univocally welcome the improvements 
brought by the better regulation agenda. They propose various 
ways to further strengthen the elements of the better regula-
tion system and to continue the REFIT programme. They also 
support an economic orientation, referring to competitiveness, 
economic  growth,  employment  and  innovation  as  important 
issues to be considered. Additionally, public authorities ask for 
continued efforts on quantification and burden reduction. 

For the Danish, Finnish, Maltese and British public authorities, 
especially the Danish local governments, implementation was 
a key issue. In this context, they considered more granularity in 
the analyses as essential. The Danish local governments gave 

as an example “that an impact assessment shows that 40% 
of workers will get better terms for a given action at EU level. 
It would be desirable to investigate which workers this applies 
to and from which Member States.” 

Additionally,  these  public  authorities  also  asked  the  Com-
mission to pay attention to the density and complexity of its 
legislation,  which is  especially caused by implementing  acts 
and delegated acts. According to them, these acts often weigh 
heavily  on  local  governments  and  small  and  medium-sized 
businesses who have to understand and apply those rules. 

In  terms  of  proposed  changes,  those  proposed  to  improve 
stakeholder  consultations  and  participation  in  the  REFIT 
Platform  played  the  most  prominent  role  in  these  public 
authorities’  position  papers.  They  urged  the  Commission:  to 
make sure that all stakeholder groups are included; to drive 
up the number and diversity of contributions; to have more 
open-ended questionnaires; to follow up on stakeholders’ con-
tributions systematically and consistently; and to improve the 
inclusion  of  (detailed)  stakeholder  contributions  in  analyses. 
Another  suggestion  made  by  several  public  authorities  is  to 
increase the Regulatory Scrutiny Board’s independence. Many 
detailed suggestions regarding the Commission’s better regu-
lation system can be found in the position papers themselves. 

Civil society (NGOs)

In  alphabetical  order,  BirdLife  Europe,  CONCORD  (European 
NGO confederation for relief and development), the European 
Environmental Bureau, NABU and WWF submitted position pa-
pers, with those of BirdLife and NABU being almost identical. 

The  following  statement  of  the  WWF  reflects  these  NGOs’ 
concerns  succinctly:  “Currently  the  Better  Regulation  guide-
lines mainly aim to support economic growth by ensuring that 
its proposals meet policy goals at minimum cost, while main-
taining social and environmental sustainability considered as 
a secondary objective.” Therefore, the position papers call for a 
reform or even an overhaul of the Commission’s current better 
regulation system. 

These NGOs urge the Commission to put public interest rather 

160 https://ec.europa.eu/info/consultations/public-consultation-stocktaking-commissions-better-regulation-approach_en

68 | Taking Stock of the Commission’s Better Regulation Agenda

than the private interest of the business community at the cen-
tre of the better regulation agenda. A related criticism is that 
the environmental impacts do not receive the same attention 
as economic impacts. These NGOs see an overemphasis on 
quantification, especially in monetary terms, as a root cause. 
According to them, the current quantifying practices also sys-
tematically disadvantage future generations and non-linearly 
behaving environmental systems. CONCORD commented pos-
itively on the sustainability impact assessments and human 
rights impact assessments carried out by DG TRADE for trade 
negotiation proposals. 

These NGOs look to the better regulation system to track the 
European  Union’s  performance  in  meeting  (internationally) 
agreed objectives and goals, such as the Sustainable Devel-
opment Goals and climate targets. For example, they find that 
setting  indicators  and  monitoring  the  achievement  of  policy 
goals  against  those  indicators  increases  the  EU’s  accounta-
bility.  The  environmental  NGOs  proposed  that  sustainability 
principles become mainstream by including them in the better 
regulation toolbox and having the Regulatory Scrutiny Board 
oversee their application. CONCORD added the concept of pol-
icy coherence for development to this request. 

Additionally, these NGOs emphasise the importance of achiev-
ing policy objectives effectively and efficiently, rather than fo-
cusing  on  cost  cutting  and  simplification,  which  is  what  the 
current  REFIT  programme  does  in  their  view.  In  this  regard, 
NGOs ask that better attention be paid to policy coherence, 
implementation in the Member States and enforcement. 

Finally,  these  NGOs  would  like  to  see  stakeholder  consulta-
tions improved. It is important to them to be consulted also on 
strategic policy considerations rather than only on a narrow 
set  of  pre-determined  policy  choices.  Moreover,  they  stress 
the importance of making sure that all stakeholders, includ-
ing small ones, are reached. NGOs also ask the Commission 
to make questionnaires more understandable, to balance the 
stakeholders’ input fairly in the analyses and to provide feed-
back to those who participated. 

Europe,  Näringslivets  Regelnämnd,  Specialised  Nutrition  Eu-
rope, Verband der chemischen Industrie, Zentralverband des 
deutschen  Handwerks.  There  is  much  consensus  on  what 
would need to be improved. Many of the papers feature long 
lists  of  detailed  suggestions  for  improvement.  It  should  be 
noted that 4 of the 11 position papers from the business com-
munity came from Germany. 

For  the  business  community,  the  consultations  are  of  great 
importance.  The  one-page  position  paper  by  Accountancy 
Europe represents the variety of suggestions made. Besides 
improving the questionnaire, as also proposed by the public 
authorities (see above), they pointed out that the current for-
mat of the questionnaire and the lengths of response periods 
often make it difficult for them to consult their constituents. 
The members of the business community would also like to 
see  their  contributions  to  consultations  fairly  weighted  and 
more visible in the analyses. 

Additionally, many of the position papers stressed that every 
legislative proposal, including implementing acts and delegat-
ed acts, should come with an analysis of the underlying evi-
dence. They also called for the co-legislators to increase their 
efforts to assess the impact of their amendments during the 
negotiations.  Furthermore,  several  papers  drew  attention  to 
the correct application of the subsidiarity and proportionality 
principles. 

A frequently mentioned issue was policy fragmentation, be-
cause  impact  assessments  do  not  sufficiently  consider  im-
pacts on other policy areas. Furthermore, the business com-
munity perceived impact assessments often to have a bias. 
They flagged that initial preferences for certain policy options 
should not lead to selective data selection and that the collect-
ed data needs to be of high quality. 

The  position  papers  stressed  the  importance  of  the  ‘evalu-
ate first’ principle, because it makes the European authorities 
more  accountable.  At  the  same  time,  they  pointed  out  that 
evaluations are not informative if they are done too early. A 
few organisations noted that the quality of evaluations was 
still trailing behind the quality of impact assessments. 

Business community

In  alphabetical  order,  the  following  organisations  from  the 
business community submitted relevant position papers: Ac-
countancy Europe, Advertising Information Group, Bundesver-
band  der  deutschen  Industrie,  BusinessEurope,  Deutsche  In-
dustrie-  und  Handelskammertag,  EuroChambers,  Insurance 

Another frequently mentioned topic was the transposition by 
Member States, including gold-plating. Several papers asked 
for more transparency and suggested developing a common 
definition  of  over-implementation.  The  business  community 
would also like to see efforts to further increase transparency. 
In particular, they would like to see the Commission publish 

 | 69

draft impact assessments, so that stakeholders can already 
have a look at the underlying data and analysis. Additionally, 
almost every position paper mentioned that trilogues lacked 
transparency. 

The Beamtenbund und Tarifunion (DBB; German association 
of government officials) drew attention to the importance of 
social protection, including health, equal chances and workers’ 
rights. They perceived better regulation as overly focusing on 
reducing the burden for businesses.

The several respondents from the business community were 
of the opinion that the Regulatory Scrutiny Board should en-
joy  greater  independence.  They  also  regretted  the  fact  that 
the Board’s opinions were too often not sufficiently followed 
up on. Finally, businesses welcomed the REFIT Platform and 
cautioned the Commission not to politicise it, i.e. make policy 
through it. They would like the Platform’s scope to be broad-
ened  to  cross-cutting  issues  and  they  called  for  better  fol-
low-up of the Platform’s opinions. 

The position paper from Special Nutrition Europe (SNE) pro-
vided a different angle than the others. SNE was worried that 
deregulation,  particularly  in  food  labelling,  would  jeopardise 
the recognition of their specialised productions. 

For  further  reference,  the  published  position  papers  provide 
many detailed suggestions regarding the Commission’s better 
regulation system.

Trade unions

Two  trade  unions  submitted  position  papers.  The  European 
Trade Union was highly critical of the Commission’s better reg-
ulation agenda. Quoting from their paper: “the ‘Better Regula-
tion’ package puts the supposed needs of business above all 
others;  turns  minimum  standards  into  maximum  standards; 
puts a value on impact assessments that they do not have; 
brings a longer, costlier and more bureaucratic procedure that 
will risk delaying social progress; makes it more difficult for 
elected EU institutions to change European Commission pro-
posals and could undermine the principle that EU law applies 
equally to all. In short, it adds red tape, slows down progres-
sive change and de-democratises Europe.” 

Research community (think tanks, academia and consultants) 

The  European  Risk  Forum,  Quadrant  Conseil  and  RegWatch 
Europe submitted position papers that all take up a different 
angle  to  better  regulation.  Nonetheless,  they  all  call  on  the 
Commission to further consolidate its better regulation efforts. 

The main message of RegWatch Europe’s paper is to not ag-
gregate analyses at EU level. In their opinion, it is more inform-
ative to read what the impact on individuals and businesses 
would be. As a consultant carrying out evaluations, Quadrant 
Conseil implores the Commission to move beyond procedure 
and rules to create a genuine evaluation culture among its of-
ficials. Paraphrasing Quadrant Conseil’s words, an evaluation 
should not be a report, but an internal process. To this end, the 
consultant proposes, for example, establishing a body of eval-
uators and increasing the mutual link between impact assess-
ments and evaluations. It also calls for a flexible application 
of the rules and procedures in order to make evaluations truly 
useful, given the wide variety of policy areas. The European 
Risk Forum takes an approach opposite to the one calling for 
flexibility  advocated  by  Quadrant  Conseil.  The  Forum  urges 
additional codification, standardisation, formal oversight and 
requirements to ensure that the scientific evidence and anal-
yses are of the highest quality. For example, it is concerned 
about bias, the distinctions between fact and opinion and be-
tween measured evidence and theoretical extrapolation, and 
applying state-of-the-art quantification methods. Additional-
ly,  improving  risk  management  legislation  and  sophisticated 
risk analysis is close to their heart. Their long list of detailed 
suggestions  includes  ideas  to  improve  the  tools  on  sectoral 
competitiveness (tool #20) and research and innovation (tool 
#21) in the better regulation toolbox.

70 | Taking Stock of the Commission’s Better Regulation Agenda

5.

EU INSTITUTIONS AND CONSULTATIVE 
BODIES 

5.1.

THE EUROPEAN PARLIAMENT

In its briefings and studies in the fields of ex-ante impact as-
sessment and ex-post impact evaluation, the European Par-
liamentary research service (EPRS) seeks to use the European 
Commission’s  own  impact  assessments  and  evaluations  as 
the starting-point for the analysis which it provides to parlia-
mentary committees. For this and other reasons, it attaches 
great importance on the latter being of high quality and based 
on reliable data. It sees a general rise in the quality of Com-
mission impact assessments over time, but expresses a wider 
concern in the European Parliament that too many significant 
proposals from the Commission have recently not been ac-
companied by impact assessments.

Impact assessments and 
regulatory scrutiny

The EPRS critically analyses every major Commission impact 
assessment: its specialist ex-ante impact assessment unit has 
undertaken  over  250  ‘initial  appraisals’  of  such  texts  since 
2012. Its overall assessment of the quality and coherence of 
Commission impact assessments - reflected in annual reports 
161 on the subject to the parliamentary committees - is that 
whilst a rising curve of quality is generally observable in the 
Commission’s impact assessment work, with a more consist-
ent use of evidence and better balance between qualitative 
and quantitative methodologies over time, there a still some 
shortcomings to be addressed. The Parliament’s services have 
also undertaken 68 impact assessments for committees on 
amendments put forward to Commission legislative proposals 
since  2007  -  seeking  to  work  on  the  basis  of  the  Commis-
sion’s impact assessments, wherever possible - as well as a 
number of substitute or supplementary impact assessments 
for committees.

As  foreseen  in  the  Inter-Institutional  Agreement  on  Better 
Law-Making and requested by the Parliament in various res-
olutions, the Parliament would like at least all legislative initi-
atives included in the Commission’s annual work programme 

and/or in the joint declaration (between the Parliament, Coun-
cil and the Commission) to be accompanied by an impact as-
sessment, wherever possible, and to be warned early on if this 
is not going to be the case. This is important both for consid-
eration of proposals in committee and for negotiations in tri-
logues. Therefore, it is considered problematic that about one 
third of recent Commission proposals in such categories have 
come  without  an  impact  assessment,  for  whatever  reason, 
with a desire for a clearer explanation of why impact assess-
ments are not conducted and ideally an early warning system 
in such cases.

The EPRS explained that parliamentary committees have ex-
pressed concern that Commission impact assessments do not 
always fully cover the various aspects foreseen in the incep-
tion impact assessment in a balanced way. They note that, in 
some cases, the quality of Commission impact assessments 
could  be  improved  by  balancing  the  potential  economic  im-
pacts of an initiative with a more systematic consideration of 
environmental, social and other impacts, and by better identi-
fying potential implications for citizens. In some cases, the dif-
ferent policy options and their potential effects could also be 
presented more clearly, whilst some impact assessments are 
considered to be too long and insufficiently concise as texts. 
When necessary, impact assessments could be updated after 
having passed the Regulatory Scrutiny Board to fully reflect 
the  Commission’s  final  legislative  proposal,  and  underlying 
studies and the Board opinions could be published at the same 
time as the impact assessment.

 Evaluation and REFIT

The European Parliament considers it a positive development 
that the Regulatory Scrutiny Board now scrutinises both im-
pact assessments and evaluations, not least because the in-
stitution has attached increasing importance to the evaluation 
of existing legislation and policy in recent years. In April 2016, 
the Parliament approved new internal provisions for carrying 

161 https://epthinktank.eu/category/publications/

 | 71

out Implementation Reports, and during this legislative term 
(2014-19), 65 such Implementation Reports have been adopt-
ed - almost two and a half times as many as during the previ-
ous 2009-14 term. To facilitate this work, the EPRS publishes 
(since 2014) ‘rolling check-lists’ that keep track of reporting 
requirements in EU legislation, of on-going and planned eval-
uations by the Commission, and of EP policy requests to the 
Commission. It also drafts short ‘Implementation Appraisals’, 
analysing the state of implementation of selected legislation, 
and  longer  ‘European  Implementation  Assessments’  (EIAs), 
which provide an analytical base for the Implementation Re-
ports  produced  by  parliamentary  committees.  This  material 
not only looks at general issues arising in implementation, but 
explores how far the Parliament’s own objectives have been 
met and any other issues reflecting its Members’ concerns. 

Such texts usually take full account of Commission evaluations 
and of data provided by the Commission, although questions 
of data availability and quality are sometimes of concern. The 
EPRS  suggests  applying  clearer  quality  criteria,  in  particular 
for non-governmental data, together with a greater prioritisa-
tion of data collection methods used by the Commission. More 
widely, the Parliament and its committees have called on the 
Commission to give the institution greater access to data it 
may hold - such as information relating to pre-infringement 
procedures  and  on  Member  States’  transposition  measures 
and  explanatory  documents  -  and  also  requested  it  to  indi-
cate more clearly when Member States introduce additional 
administrative  requirements  or  other  elements  unrelated  to 

EU legislation, or set higher standards that go beyond EU-wide 
minimum standards.

On REFIT, the Parliament would like the Commission’s annual 
work programme to seek to identify REFIT evaluations and in-
itiatives that could be agreed in the joint declaration (between 
the Parliament, Council and the Commission) each year. The 
scoreboard  published  by  the  Commission  in  respect  of  the 
REFIT element of the Commission’s programme is considered 
useful, although the schedule foreseen is not always followed 
and proposals are often delayed. There is also thought to be 
scope for improvement in the quantification of the reduction in 
regulatory burdens and potential savings.

Consultation

The  European  Parliament  has  strengthened  its  attempts  to 
consult  with  national  parliaments  on  legislative  issues,  al-
though  it  has  so  far  received  only  limited  feedback  on  the 
practical  experience  of  applying  EU  legislation  in  the  Mem-
ber  States.  It  has  welcomed  the  commitment  made  by  the 
Commission, before adopting a proposal, to consult widely - in 
particular with SMEs, civil society and other end-users - but 
considers that the Commission should focus on consultation 
before  the  adoption  of  a  proposal,  and  not  to  continue  any 
public consultation during the legislative process itself, since 
during this phase, it is for the Parliament and Member States 
to carry out their own consultations, if they choose to. 

5.2.

THE GENERAL SECRETARIAT OF THE 
COUNCIL

On 11 January 2019, a delegation from the General Secretari-
at of the Council (referred to as ‘the General Secretariat of the 
Council’ or ‘GSC’) visited the Commission’s Secretariat-General 
to informally exchange views in the context of the better reg-
ulation  stocktaking  exercise.  The  officials  from  the  GSC  had 
consulted some of the sectoral departments of the General 
Secretariat for an overview of the strengths and weaknesses 
of the current better regulation system. (The views expressed 
here do not commit the Council as such in any way)

Impact assessments and 
regulatory scrutiny

by increasing  their readability and working on the executive 
summaries. Additionally, they remarked that the Commission 
could pay more attention and focus on the effects of certain 
legislative proposals at Member State level. 

The GSC found that the impact assessments provided a lot of 
relevant information that facilitated agreement and increased 
the  efficiency  of  the  legislative  process.  They  acknowledged 
that  the  use  of  impact  assessments  across  working  parties 
and presidencies varied. This depended among others on the 
policy area and the political sensitivity of the file. The GSC also 
clarified  that  the  working  parties  were  free  to  choose  their 
approach to impact assessments, but that the working party 
chairpersons usually read them closely. 

As the GSC only has limited capacity to carry out its own im-
pact assessments, it would encourage the Commission to fur-
ther strengthen the quality of its impact assessments, notably 

The  GSC  found  the  impact  assessments  generally  thorough 
and of high quality, but also flagged that they were lengthy. 

72 | Taking Stock of the Commission’s Better Regulation Agenda

Hence,  the  executive  summary  was  of  utmost  importance. 
Furthermore, they would like to see better justifications of the 
options and, in some cases, more analysis at Member State 
level, as mentioned before. The GSC also pointed out that the 
legislative proposals were not always consistent with the im-
pact  assessments.  Additionally,  the  GSC  preferred  the  pres-
entation of the available underlying evidence even if it was not 
possible to present it as an impact assessment. 

The GSC reported that they had built up capacity to carry out im-
pact assessments on their own. This capacity is very small and 
meant as a last resort. Preferably, the Member States should 
carry out the impact assessments for the major amendments 
they propose. Any analytical work to be carried out by the Coun-
cil would be heavily based on the preceding work done by the 
Commission and the European Parliament. So far, the GSC’s ca-
pacity remains untested, because it has not yet received either 
an eligible request for an impact assessment or there was no 
simple majority support for an impact assessment in the Council. 

Evaluations

The  GSC  stressed  the  importance  of  obeying  the  ‘evaluate 
first’ principle and pointed out that timing is very important 
for evaluations. The GSC regretted that it is difficult to gather 
information from national and regional authorities, which re-
sults in interest groups having disproportionately loud voices. 
The GSC suggested there should be more awareness raising 
about  opportunities  for  participation  and  such  participation 
should be made less resource-intensive. 

The GSC observed that the quality of evaluations was inferi-
or to that of impact assessments. Especially, it found the re-
search design poor and would like to see the structure of eval-
uations improved. Additionally, the GSC was of the view that 
based on experience, the Regulatory Scrutiny Board helped to 
increase  the  quality  of  evaluations.  The  GSC  therefore  sup-
ported the idea of  seeing  the Board’s involvement expanded. 

Subsidiarity and proportionality

The GSC has observed an increase in the request for subsidi-
arity and proportionality in legal assessments since the Lisbon 
Treaty.  In  the  GSC’s  view  (  based  on  feedback  from  its  ser-
vices), the high quality of the Commission’s analyses in this 
respect was of great importance to the GSC’s services. How-
ever, presently, as far as subsidiarity and proportionality are 
concerned, it is only possible to find a very short assessment 
on those aspects in the Commission’s Memoranda of Under-
standing. In particular, it would be essential for the Commis-
sion’s analysis to cover all viable policy options. Additionally, 
the  GSC  suggested  doing  a  more  in-depth  analysis  on  sub-
sidiarity issues for politically sensitive files (especially in poli-
cy areas where, within the Council, unanimity is still required 
for decision-making on issues such as taxation, for example.). 
Finally, the GSC thought that the Commission should refrain 
from using standard sentences in the subsidiarity and propor-
tionality analysis, especially in the executive summary, as this 
did not bring any added value.

5.3.

THE COUNCIL WORKING GROUP ON 
COMPETITIVENESS AND GROWTH

In  response  to  the  consultation  with  the  Council’s  Working 
Group  on  Competitiveness  and  Growth  (COMPRCO),  Estonia, 
Germany, Ireland, Poland and Spain submitted written contri-
butions.  They  appreciated  impact  assessments  considerably, 
because they help them understand the Commission’s thinking 
and help them communicate with national stakeholders. Addi-
tionally, several Member States valued the impact assessments 
as a basis for their own analyses. Hence, most of them stat-
ed  that  it  is  of  great  importance  for  all  legislative  proposals 
to come with impact assessments and for amendments to be 
assessed as well. They also stressed the need to better assess 
the impact on individual Member States, which according to one 
Member State would facilitate negotiations. Regarding impact 
assessments  and  evaluations,  Estonia,  Germany,  Ireland,  Po-
land and Spain acknowledged their increasing quality but asked 

for shorter, more readable documents, a more consistent appli-
cation of methodologies and an analysis of (macroeconomic) 
impacts (GDP, export, jobs) rather than output (patents, papers). 

These  Member  States  suggested  that  consultations  should  be 
more  representative,  that  national,  regional  and  local  govern-
ments should be consulted more (for example, through the Com-
mittee  of  the  Regions),  and  that  individuals  who  do  not  speak 
English or do not have internet access should be included. Estonia 
proposed an automated analysis of responses to online consulta-
tions that would be available online directly. Poland also proposed 
giving more attention to non-governmental organisations. 

Finally, two Member States called for a reduction of targets or 
a one-in/one-out mechanism to reduce bureaucracy.

 | 73

5.4.

THE COMMITTEE OF THE REGIONS

The European Committee of the Regions (CoR) expressed its 
views on better regulation in several opinions 162. In addition, 
views were exchanged with the officials of the CoR. Their main 
concern is to increase the participation of regional and local 
authorities  in  policy  development  and  in  the  assessment  of 
legislation’s impact on the regions, including the administra-
tive burden placed on their authorities. End of 2018, the CoR 
launched its network of regional hubs, as an additional source 
of feedback, to assess EU policy implementation at local and 
regional level. 

Impact assessments and scrutiny

In its opinions, the CoR made proposals to improve impact as-
sessments. In particular, impact assessments should explore 
the territorial dimension of major policy options and the ef-
fects of legislation on the administrative burden for local and 
regional  authorities.  Good  examples  of  successful  territorial 
impact assessments undertaken by the CoR, as pointed out by 
the officials of the CoR, include the UK’s withdrawal from the 
EU, the European Regional Development Fund after 2020 and 
the Urban Agenda.

The CoR uses the information provided in impact assessments 
as a technical basis for background notes and political fiches 
to inform the political level. 

Based on the Commission’s roadmap, the CoR identifies five 
priority areas per year, for which which they conduct territorial 
impact assessments. In the last 2 years some of these were 
conducted with the Commission’s Directorate-General for Re-
gional and Urban Policy, with the CoR providing the Commis-
sion with input for impact assessments. Nonetheless, in most 
cases the Commission does not involve the CoR at an early 
stage of the impact assessment process. The officials of the 
CoR underlined they would prefer to be involved at an earlier 
stage of the process, as made possible by the CoR-Commis-
sion cooperation agreement, in order to flag territorial dimen-
sion aspects. The officials of the CoR also pointed to the lack 
of regional data, which limits a clear assessment of territorial 
impacts in some areas.

The  officials  of  the  CoR  welcomed  the  Regulatory  Scrutiny 
Board’s independent scrutiny and acknowledged that impact 
assessments  were  scrutinised  for  including  an  analysis  of 
the territorial impact. However, they asked for more regional 
competence within the Board and more effort on scrutinising 
territorial impact assessments.

Evaluation and REFIT

In its opinions, the CoR welcomed the stronger role of evalu-
ations and the introduction of REFIT to support simplification 
and  regulatory  cost  reductions  without  compromising  poli-
cy objectives. Their officials find that REFIT sets an essential 
focus by assessing whether implementation is practical and 
feasible. In the CoR’s view, the REFIT Platform should focus on 
specific issues within EU legislation and take a more ambitious 
approach,  i.e.  aiming  for  structural  improvements  to  the  EU 
regulatory framework in the medium-term. The officials of the 
CoR found that the highly technical level of submissions to the 
REFIT Platform made it difficult for the CoR to contribute with-
in the short timeframes. Additionally, broader themes would 
facilitate input from local and regional government. The offi-
cials suggested that the REFIT Platform be involved in REFIT 
evaluations and agreed with the proposals put forward in the 
‘Commission Communication on the principles of subsidiarity 
and proportionality’ 163 to give local and regional authorities a 
greater presence within the Platform and to widen its focus 
to address subsidiarity, proportionality, legislative density and 
the role of local and regional authorities in implementing EU 
law.

The officials of the CoR recognised that the Commission had 
come a long way in its evaluation of legislation, which is more 
systematically covered, although not to the same degree in 
all areas. However, they were of the opinion that the timing 
needed improvement, as evaluations come too late, notably 
evaluations  of  spending  programmes  whose  purpose  is  es-
sentially to inform decisions for the next cycle of multiannual 
frameworks. 

162 COM(2018) 703 final of 23 October 2018 Communication from the Commission to the European Parliament, the European Council, 
the European Economic and Social Committee and the Committee of the Regions: The principles of subsidiarity and proportionality: 
Strengthening their role in the EU’s policymaking
163 COM(2018) 703 final of 23 October 2018 Communication from the Commission to the European Parliament, the European Council, 
the European Economic and Social Committee and the Committee of the Regions: The principles of subsidiarity and proportionality: 
Strengthening their role in the EU’s policymaking

74 | Taking Stock of the Commission’s Better Regulation Agenda

The CoR has initiated a network of regional hubs in response 
to  the  ‘Task  force  on  subsidiarity,  proportionality  and  do-
ing  less  more  efficiently’  which  presented  its  conclusions  in 
2018 164. During a two-year pilot phase, 20 core regions and 
an  additional  number  of  associate  regions  will  provide  sys-
tematic information and feedback on the implementation of 
EU legislation at local and regional level, which is shared with 
EU institutions.

According  to  the  CoR  officials,  an  inherent  self-selection  of 
respondents  in  the  public  consultation  results  in  sets  of  re-
sponses with high degrees of bias. The timing of consultations 
can be challenging, such as the quick consultation on the pro-
posals  for  the  multiannual  financial  framework,  making  the 
response  by  regions  and  other  stakeholders  difficult.  Hence, 
they did not find public consultations a good source of data 
and evidence.

Consultation

In  its  opinions  the  CoR  supported  the  actions  introduced  in 
2015 to improve stakeholder consultations. The CoR insisted 
in its opinions that the Commission and the other institutions 
should  involve  regions  and  local  authorities  more  actively 
when  designing  legislation.  Their  experience  in  applying  EU 
rules is valuable for assessing the impact of legislation or de-
vising ways to implement policies. Specifically, the CoR asked 
for a specific set of consultations of regional and local legisla-
tive assemblies during the Commission’s policy development. 
The CoR would like to be involved in their role as consultative 
body and not as stakeholder. Therefore, they do not participate 
in public consultations as a rule. 

The number of respondents should not be the only benchmark 
for the success of consultations. There is a strong legitimacy 
between input and output. This means that providing the tar-
get group most affected by new EU legislation (e.g. regions) 
with meaningful input in the consultation also increases the 
motivation of these players to comply with the regulation once 
adopted or once revised. 

According to the CoR, the regional hubs pilot scheme with 20 
regions  and  an  additional  number  of  associate  regions  will 
help increase the input from regional authorities and their re-
gional stakeholders. Participating regions have committed to 
reply systematically and several times per year to question-
naire consultations on the implementation of EU legislation at 
local and regional level.

5.5.

THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE

The European Economic and Social Committee (EESC) has ex-
pressed its views on better regulation in several opinions 165. 
In  addition,  an  exchange  of  views  took  place  between  offi-
cials of the Secretariat-General of the Commission and three 
members of the European Economic and Social Committee on 
15 January 2019.

Overall,  the  EESC  welcomed  the  better  regulation  agenda, 
which in their view should become a permanent programme 

in delivering high-quality Union legislation without undermin-
ing key policy objectives or creating deregulation pressure. Ac-
cording to the EESC, it should be continued, further developed 
and improved by the new Commission after 2019. The EESC 
stressed  the  importance  of  covering  the  whole  life  cycle  of 
legislation and in particular its applicability, which needed to 
be ensured from the start and monitored at the implemen-
tation stage.

164 https://europa.eu/!Bg68tX
165 Opinion of the European Economic and Social Committee on the Communication from the Commission to the European Parliament, 
the Council, the European Economic and Social Committee and the Committee of the Regions − Completing the Better Regulation Agenda: 
Better solutions for better results (2018/C 262/04) OJ C 262, 25.7.2018, p.22
Opinion of the European Economic and Social Committee on ‘Analysis of transparency, methodology and resources of impact assessments 
and evaluations that the European Commission is launching to improve the quality of European legislation’(2017/C 434/02) OJ C 434, 
15.12.2017, p. 11
Opinion of the European Economic and Social Committee on the ‘Evaluation of European Commission stakeholder consultations’ 
(2015/C 383/09) OJ C 383, 17.11.2015, p. 57
Opinion of the European Economic and Social Committee on REFIT (exploratory opinion) (2016/C 303/06) OJ C 303, 19.8.2016, p. 45

 | 75

Impact assessments and scrutiny

The EESC considered impact assessments useful, but the focus on 
assessing cost must not come at the expense of the assessment 
of possible benefits that are not as easy to quantify. The EESC 
encouraged a broader view of the Commission’s impact assess-
ments, i.e. they should consider a wider set of options in detail.

The EESC considered it important that the European Council 
and the European Parliament shared the responsibility of en-
suring better regulation, especially when it comes to assessing 
the impacts of amendments, not least also in keeping with the 
recommendations from the European Court of Auditors. They 
suggested  that  the  three  institutions  should  have  a  shared 
methodology for impact assessments and an agreed scope. 

The better regulation agenda including the Regulatory Scrutiny 
Board was highly appreciated. The Board has a crucial role, in 
the EESC’s view. Because of its neutrality and know-how, it adds 
considerably to the credibility of the Commission’s proposals.

The EESC regretted that the Board is not well known outside 
the  European  institutions  and  bodies  in  Brussels.  According 
to them, a Regulatory Scrutiny Board that is more visible in 
European  capitals  could  help  increase  the  credibility  of  the 
Commission’s legislative proposals and impact assessments. 
Additionally,  the  EESC  would  like  to  discuss  methodological 
issues with the Regulatory Scrutiny Board.

Evaluation and REFIT

The EESC firmly supports the ‘evaluate first’ principle and is ac-
tively involved in better regulation, notably through its partici-
pation in the drafting of ex post evaluations. The EESC deemed 
monitoring  of  application  on  the  ground  to  be  essential  in 
order  to  create  a  legal  framework  that  enabled  businesses 
and individuals to benefit from the advantages of the internal 
market and to avoid unnecessary administrative burdens.

The EESC subscribed to a REFIT programme that in their view 
must  lead  to  neither  deregulation  nor  reducing  the  level  of 
protection  of  social,  environmental  or  fundamental  rights. 
European legislation is an essential factor in integration, and, 
when proportionate, it is an important guarantee of protection, 
promotion  and  legal  certainty  for  all  European  stakeholders 
and citizens. But it is essential to avoid needless regulatory 
costs.

The EESC is participating in the REFIT Platform. While recog-
nising the progress made by the REFIT Platform in simplify-
ing existing legislation, the EESC proposed that the Platform’s 
mandate could be extended to not only look at burden reduc-
tion but also at improving the legislation, which may include 
the need for new legislation. Finally, the EESC found that the 
REFIT  Platform  did  not  adequately  reflect  in  its  composition 
the weight that the EESC actually carries by representing civil 
society.

Consultation

The EESC supported the comprehensive involvement of stake-
holders by performing consultations throughout the lifecycle 
of a political initiative, because it is crucial to consider already 
at the drafting stage that legislation is easy for Member States 
and  stakeholders  to  implement.  It  recognised  the  progress 
made on consultation under the better regulation agenda.

Nonetheless, the EESC would like to see more and better in-
teraction  with  stakeholders  and  the  general  public  who  are 
affected by proposed legislation. To this effect, the EESC would 
like  to  contribute  more  to  identifying  relevant  stakeholders 
and disseminating information about consultations to relevant 
organisations and groups. This would help to ensure that rele-
vant players are aware of the consultation and the possibility 
to contribute.

76 | Taking Stock of the Commission’s Better Regulation Agenda

6.

EUROPEAN COMMISSION OFFICIALS 

6.1.

IMPACT ASSESSMENT

Commission  officials  strongly  supported  the  concept  of  evi-
dence-based policymaking.  Overall, they found that the pro-
cess of writing an impact assessment provides a good, sys-
tematic preparation for later negotiations and communication 
about the Commission’s proposals. Some Commission officials 
were of the opinion that the impact assessment report has to 
satisfy  competing  demands  of  efficient  communication  and 
providing evidence on often complex topics. Others were con-
cerned whether the resources required to prepare an impact 
assessment were proportionate to the benefits and the often 
limited use in the co-legislative process. 

Commission  officials  were  of  the  opinion  that  the  absence 
of impact assessments needs to be justified much better, for 
example in the explanatory memorandum or even in a press 
release, but they preferred not having an impact assessment 
over having one of low quality.

The quality of analyses presented in impact assessments is 
often limited by the availability of relevant information. Com-
mission officials drew attention to the difficulties they have in 
gathering reliable, comprehensive data and in applying meth-
odologies coherently and transparently across a wide variety 
of policy fields and across all Member States.

6.2.

EVALUATION

Commission officials acknowledged that evaluations are use-
ful for learning about the functioning of EU interventions and 
can  help  gain  new  insights  when  well  timed,  for  example, 
when the policy has been implemented for a while, and its re-
sults and impacts can be meaningfully assessed. Commission 
officials had mixed views about the ‘evaluate first’ principle. 
Some  argued  that  it  is  intuitive  and  logical  as  it  closes  the 
policy cycle. Others suggested deciding on the need for evalu-
ations on a case-by-case basis.

Some Commission officials called for a flexible application of 
the rules and procedures to make evaluations more meaning-
ful, given the wide variety of policy areas that evaluations cover.

There  were  mixed  views  about  whether  the  Commission 
should conduct evaluations internally or involve external con-

tractors or other institutions. Commission officials shared the 
view that conducting the evaluation internally allows in-house 
expertise to be built up and used more. Some officials were 
sceptical about the quality of the work and services provided 
by contractors. The issue of limited resources for conducting 
the evaluation internally was also a concern. 

On quantification, a number of Commission officials thought 
that the lack of appropriate data is the most important prob-
lem affecting the quality of evaluations. Comparable EU-wide 
data  are  often  not  available  and  this  makes  it  difficult  to 
quantify impacts. Commission officials noted that there is a 
trade-off between the pressure to reduce the administrative 
burden of systematic monitoring in the original proposal and 
the availability of evidence when it comes to the evaluation. 

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6.3.

CONSULTATION

Commission  officials  considered  stakeholder  consultation  as 
being essential for transparency and accountability purposes. 
Nonetheless, they shared the view that public consultation can 
in some cases, particularly in evaluations, be a time-consum-

ing  and  resource-intensive  process  with  limited  value  when 
it comes to the quality and quantity of evidence provided by 
participants.  

6.4.

THE REGULATORY SCRUTINY BOARD

The interviews showed that Commission officials think highly 
of the Board’s work. Several officials saw the Board hearing 
as a rehearsal for the negotiations with co-legislators and as 
practice to explain their proposal to non-experts.

Some  Commission  officials  expressed  concerns  that  the 
Board’s  demands  for  additional  analysis  and  information 

are  not  proportionate  to  the  specific  initiative.  Additionally, 
Commission staff worried that the Board does not apply its 
standards consistently (such as its demands for quantified in-
formation). Some officials were of the opinion that too many 
published impact assessments and evaluations remain of un-
satisfactory quality.

6.5.

THE REFIT PROGRAMME, PLATFORM AND 
SCOREBOARD

Commission  officials  recognised  that  the  REFIT  programme 
and  Platform  are  important  for  communication  purposes. 
However,  they  thought  that  a  separate  process  such  as  the 
REFIT Platform is not needed, because the REFIT approach is 
now a mainstream part of the policy cycle and evaluations are 

improving.  On  the  REFIT  Scoreboard,  the  officials  who  were 
interviewed  suggested  using  more  qualitative  examples  or 
case studies to illustrate impacts of legislation. Moreover, they 
suggested being more open about which burdens and benefits 
can and cannot be quantified.

78 | Taking Stock of the Commission’s Better Regulation Agenda

7.

OTHER ORGANISATIONS AND BODIES 

7.1.

REFIT PLATFORM

The  REFIT  Platform  decided  that  it  would  contribute  to  the 
Commission’s better regulation stocktaking exercise. The Plat-
form’s Secretariat prepared a dedicated survey to collect the 
views  of  the  Platform’s  members  on  how  the  Platform  has 
fulfilled its purpose and contributed to the Commission’s bet-
ter  regulation  agenda.  The  survey  was  circulated  on  2  July. 
Members had 12 weeks to send in their contributions (until 20 
September 2018). Of the Platform’s 47 members (28 in the 
government group and 19 in the stakeholder group), 34 sent 
contributions (20 from the government group and 14 from the 
stakeholder group).

The Secretariat compiled the contributions, presenting aggre-
gated  findings  from  the  survey  and  including  a  synthesis  of 

proposals  for  future  improvements.    The  stakeholder  group 
agreed in its meeting on 29 June to set up a working group 
to consider the findings. The working group prepared a recom-
mendation to identify the consensual or more complex issues. 
The Platform as a whole agreed this recommendation at its 
meeting on 14 March.

In the opinion the REFIT Platform members recognize that the 
Platform  has  provided  a  valuable  contribution  to  the  REFIT 
agenda and recommends its continuation with the Stakeholder 
group and the Government group. The Stakeholders and the 
Government group proposed detailed suggestions on possible 
improvements.  The  Committee  of  the  Regions  also  annexed 
its opinion 166. 

7.2.

TASK FORCE ON SUBSIDIARITY, 
PROPORTIONALITY AND DOING LESS 
MORE EFFICIENTLY

The ‘Task force on subsidiarity, proportionality and doing less 
more efficiently’ submitted its report to President Juncker on 
10 July 2018 167. The report contains nine recommendations 
to bring about a new way of working to achieve ‘active subsidi-
arity’ and greater involvement of local and regional authorities 

in  the  Union’s  policymaking.  Several  of  the  task  force’s  rec-
ommendations  have  an  impact  on  the  Commission’s  better 
regulation policy and have been considered in the stocktaking 
exercise.  On  23  October  2018,  the  Commission  already  set 
out in broad terms how it would respond to the task force 168.

166 REFIT Platform opinion XXII.10.a “REFIT Platform Survey – Future prospects”, adopted on 14 March 2019: https://ec.europa.eu/info/
files/refit-platform-recommendations-horizontal-issues-xxii10a-refit-platform-survey-future-prospects_en
167 https://ec.europa.eu/commission/files/report-task-force-subsidiarity-proportionality-and-doing-less-more-efficiently_en
168 COM(2018) 703: Communication entitled: ‘The principles of subsidiarity and proportionality: Strengthening their role in the EU’s 
policymaking’.

 | 79

 
 
7.3.

REGULATORY SCRUTINY BOARD

The annual reports of the Regulatory Scrutiny Board were considered in this stocktaking exercise 169.

169 https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en

80 | Taking Stock of the Commission’s Better Regulation Agenda

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