1 Better Regulation
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; recommended for debate in European Committee C; further information required
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| Document details | (a) Commission Communication: Better regulation for better results — An EU agenda
(b) Commission Communication: Proposal for an Interinstitutional Agreement on Better Regulation
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| Legal base | (a) —
(b) Article 295 TFEU; QMV
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Departments
Document numbers
| (a) Business, Innovation and Skills
(b) Foreign and Commonwealth Office
(a) (36885), 9079/15 + ADDs 1-2, COM(15) 215
(b) (36888), 9121/15 + ADD 1, COM(15) 216
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Summary and Committee's conclusions
1.1 On 19 May 2015 the Commission published its package of measures
intended to refresh and take forward its work on better regulation.
It comprises:
· an overarching
Communication, document (a), the themes of which are increased
scrutiny of, and consultation on, EU legislative proposals. Details
are outlined below;
· an
accompanying Commission staff working paper Regulatory Fitness
and Performance Programme (REFIT): State of Play and Outlook.[ 1]
This is the second edition of the scoreboard which reviews
the 164 initiatives for simplification and regulatory burden reduction
identified by the Commission under its rolling REFIT programme;
· the
Commission's internal Better Regulation Guidelines, which
it has been applying since 19 May 2015, and is complemented by
a series of downloadable web-tools comprising the Better Regulation
"Toolbox". The Guidelines draw on public consultations
carried out in 2013 and 2014 on the previously separate guidelines
on impact assessment, stakeholder consultation and evaluation;
· a proposal
for an Interinstitutional Agreement on Better Regulation (IIA),
document (b). This would set out the commitments of the European
Parliament, the Council and Commission concerning better regulation,
interinstitutional relations and the legislative process as outlined
in more detail below; and
· a proposed
Common Understanding on Delegated Acts, annexed to the IIA, which
repeats the reassurance for Member States of early input into
the delegated legislation procedure found in a similar 2011 document,
and also sets out, for the first time, some guidelines for determining
when procedure for the Commission to adopt EU subordinate legislation
should be the delegated legislation procedure or the implementing
legislation procedure, as outlined in more detail below.
1.2 It is vitally important that the EU legislates
only when necessary; and that such legislation is high quality
and evidenced based. EU legislative practice must ensure that
this is the case. The statements of intent and commitments contained
in these documents are welcome, but only go so far. They need
to be put into practice rigorously. The fact that this new package
is so substantially based on existing programmes and agreements
indicates that this has not been the case in the past. We consider
that this package needs to be accompanied by a change in attitude
by all the EU institutions concerned.
1.3 Given the importance and wide ranging nature
of the package we recommend it for debate in European Committee
C. In the meantime these documents remain under scrutiny.
1.4 In advance of that debate we ask both Ministers
who have submitted an Explanatory Memorandum (Anna Soubry and
Mr David Lidington) the following general questions:
· How
they think the package could be strengthened?
· What
practical steps they envisage to ensure that it is rigorously
applied?
· The
extent to which the package represents, as has been asserted by
some commentators,[ 2]
a power grab by the Commission by limiting the autonomy of the
European Parliament and the Council in operating the legislative
process?
1.5 We welcome the creation of a Regulatory Scrutiny
Board which is stronger than its predecessor Impact Assessment
Board. However we note that the Communication envisages the Commission
being able to take action "in the absence of an adequate
supporting impact assessment" whereas the Guidelines require
a positive opinion of the Board before internal interservice consultation
in the Commission can proceed. We ask the Minister for Small Business,
Industry and Enterprise (Anna Soubry) to clarify the circumstances
in which the Commission can table a legislative proposal in the
absence of a positive opinion from the Board, and whether she
considers that this aspect of the package needs strengthening.
1.6 We welcome increased consultation and transparency
in the legislative process. We draw attention to three aspects
of this package which could affect scrutiny of EU legislation
by this Committee:
· "inception
impact assessments" could provide an evidential base on which
to start early consideration of compliance of a legislative proposal
with the principle of subsidiarity. We therefore ask the Minister
for Europe whether he will press for these to be drawn to the
attention of national parliaments. At present the proposed IIA
only envisages that the final results of Impact Assessments will
be made available to national parliaments;
· the
Commission's intention to include a more through explanation in
its explanatory memoranda as to how a legislative initiative meets
the twin tests of subsidiarity and proportionality responds to
a consistent call from our predecessor Committee in its reasoned
opinions, which itself was based on the grounds that this was
a Treaty obligation which the Commission had been failing to meet;[ 3]
and
· our
predecessor Committee drew the attention of the House to the difficulties
of scrutiny due to the prevalence of documents being classified
as Limité. This makes scrutiny of trilogue
negotiations involving the European Parliament, the Council and
the Commission particularly difficult. Increased transparency
during the legislative process would alleviate this difficulty,
but we note, with disappointment, that paragraph 28 of the proposed
IIA retains the equivocation of its 2003 predecessor as to the
obligation of the institutions to be transparent in respect of
trilogue negotiations. In this context we also draw the attention
of the House to the fact that the European Ombudsman has opened
an inquiry into the transparency of trilogues based on her concern
that they be conducted in a manner which can be reconciled with
the requirements as to the transparency of the legislative procedure,
set out in Article 15(2) and (3) TFEU.
1.7 It is disappointing that the IIA does no more
than "reiterate the role and responsibility of national Parliaments
as laid down in the Treaties". We understand this is also
an active concern of the Dutch Parliament. We welcome the Minister
for Europe's statement that "The Government believes that
there is much that can be improved in engagement between the EU
institutions and national parliaments and will continue to underline
the importance of this issue for the UK during the IIA negotiations
and elsewhere". We ask the Minister for Europe what
specific amendments to the proposed IIA he will seek with a view
to enhancing the role of national parliaments.
1.8 We welcome, in principle, guidance clarifying
the divide between the delegated legislation procedure and the
implementing legislation procedure in the proposed Common Understanding.
Up to now the Government has favoured the implementing legislation
process over the delegated legislation process because the former
affords more effective Member State input into the formulation
of the proposal for EU subordinate legislation. We ask the Minister
for Europe for his view whether the ongoing commitment to making
better use of national experts meets this concern and, if not,
what changes he will be seeking to the proposed Common Understanding.
1.9 We note the Minister for Europe's view that
the "Member States should also preserve full autonomy over
plans for implementation". We ask him how this should be
reflected in the proposed IIA.
Full details of
the documents: (a) Commission Communication:
Better regulation for better results — An EU agenda:
(36885), 9079/15, COM(15) 215, + ADDs 1-2; (b) Commission Communication:
Proposal for an Interinstitutional Agreement on Better Regulation:
(36888), 9121/15, COM(15) 216, + ADD 1.
The Communication
1.10 The significant new components of the better
regulation agenda envisaged by the Commission in this Communication
are:
· "Roadmaps"
and "inception impact assessments" intended to give
stakeholders the chance to provide feedback and prompt them for
relevant information, right from the very start of work on a new
initiative;
· twelve-week
public consultations when preparing new proposals and when the
Commission evaluates and carries out "fitness checks"
of existing legislation;
· an invitation
from the Commission to citizens and stakeholders to provide feedback
during the eight week period national parliaments have for delivering
subsidiarity reasoned opinions;
· an indicative
list of proposed delegated acts to be published online with draft
texts open to the public at large on the Commission's website
for four weeks in parallel to the consultation of experts in the
Member States. The same will apply to proposals for important
Commission implementing legislation;
· a new
"Lighten the Load - Have Your Say" feature on the Commission's
Better Regulation website to give the public a chance to air their
views and make comments on existing EU laws and initiatives in
addition to the formal consultations the Commission undertakes;
· an improved
explanatory memorandum accompanying each Commission proposal for
legislation[ 4] addressing
how better regulation principles have been applied, its impact
(particularly on SMEs), the views of stakeholders, and a more
through subsidiarity and proportionality explanation;
· the
replacement of the existing Impact Assessment Board of the Commission
by a Regulatory Scrutiny Board with more personnel resources,
some independent members and a remit extended to the checking
of major evaluations and "fitness checks". Should the
Commission wish to proceed in the absence of an approved impact
assessment it will publicly explain why; and
· the
REFIT programme to be refreshed by focussing on serious sources
of inefficiency and regulatory burden, providing quantitative
estimates of benefits, embedding it in the annual Work Programme
and creating a "REFIT Platform" to provide a basis for
inclusive work on a common agenda. It will involve high level
experts from business, social partners, and civil society appointed
through an open and transparent process as well as experts from
all 28 Member States, the European Economic and Social Committee
and the Committee of the Regions.
1.11 The Commission uses the Communication to call
upon the European Parliament and the Council to commit to better
regulation, including by prioritising legislation emerging from
the REFIT programme, carrying out impact assessments on any substantial
amendment which they propose, and to include systematically in
every new act provisions for monitoring and future evaluation.
It also calls upon Member States to avoid "gold plating".
The proposed Interinstitutional Agreement
1.12 This proposal is intended to replace an existing
2003 Interinstitutional Agreement on better lawmaking and the
2005 Interinstitutional Common Approach to Impact Assessment;
and to supplement continuing Agreements on codification (1994),
the quality of drafting (1999), the use of the recasting technique
for legal acts (2001);[ 5]
plus Declarations on practical arrangements for the co-decision
procedure (2007)[ 6] and
on explanatory documents (2011).[ 7]
1.13 The significant elements of it are:
· it
would re-iterate the importance of the ""Community method",
transparency of the legislative process, democratic legitimacy,
subsidiarity, proportionality, legal certainty and simplicity,
clarity and consistency in the drafting of legislation";
· it would
seek to re-enforcement the EU's "annual and multiannual programming",
including by the Commission and the European Parliament exchanging
views on the "the main elements guiding the preparation of
the Commission Work Programme" on the basis of a letter from
the Commission President;
· the
three institutions would agree to identify proposals from the
Commission's Work programme that will receive priority treatment,
and there would be regular in-year updates;
· the
Commission's impact assessment process would commence with consultation
of stakeholders, to address whether EU action is needed and to
map out alternative solutions using quantitative and qualitative
analysis. European Parliament and Council consideration of legislative
proposal would start by consideration of the Commission's Impact
Assessment and any substantial proposed amendments to the Commission's
proposal would be subject to an impact assessment. The final results
of the impact assessment process would be made available, including
to national parliaments;
· any
of the three institutions would be able call for an independent
panel to assess whether a substantial proposed amendment to a
Commission proposal meets the requirements to "be comprehensible
and clear; allow parties to easily understand their rights and
obligations; include appropriate reporting, monitoring and evaluation
requirements; avoid disproportionate costs; and be practical to
implement";
· an eight
week consultation with stakeholders would follow the publication
of a proposal and its impact assessment, in parallel to the period
for subsidiarity consideration by national parliaments;
· a provision
that "The three institutions agree that proposals for significant
amendments or development of Union legislation should be rooted
in robust prior evaluation of the efficiency, effectiveness, relevance,
coherence and value added of existing law and policy" would
be supported by monitoring, evaluation and reporting requirements
in existing legislation;
· the
Commission would reiterate that it will include in its explanatory
memoranda explanations of the choice of legal instrument and how
the proposed measure is justified in the light of the principles
of subsidiarity and proportionality and are compatible with fundamental
rights;
· the
institutions would be a co-ordinate of the legislative process
and transparency by making public "their preparatory and
legislative work … in an appropriate fashion" and by
ensuring "an appropriate degree of transparency of the legislative
process, including of trilateral negotiations between the three
institutions"; and
· Member
States would be asked for better and more transparent implementation,
making clear any addition national gold plating.
The proposed Common Understanding on Delegated
Acts
1.14 The proposed Common Understanding would clarify
when the delegated legislation procedure[ 8]
should be prescribed for subordinate legislation in parent legislation,
and when the implementing legislative procedure.[ 9]
The following should be adopted by the delegated legislative procedure:
(a) any amendment of the parent legislative act, including annexes,
(b) the addition of further substantive rules and criteria, (c)
establishing procedures (i.e. a way of performing or giving effect
to something) that involves a further policy choice, (d) determining
the type of information which must be provided or supplementing
the obligation to provide information. The following should be
adopted by the implementing legislative procedure: (a) authorisations,
(b) establishing details of procedures to ensure uniform conditions,
(c) the format of information to be provided, and (d) work programmes
and implementing financial instruments.
1.15 It would also reinforce prior consultation in
respect of proposals for delegated acts by envisaging consultation
with outside experts and experts designated by the European Parliament,
in addition to the current commitment to consult experts designated
by Member States; and require the Commission to summarise the
results of consultation in the explanatory memoranda for proposed
delegated acts.
The Explanatory Memoranda
1.16 In her Explanatory Memorandum of 4 June the
Minister for Small Business, Industry and Enterprise summarises
the Communication, the guidelines and the State of Play and outlook
on REFIT. She recalls that many of the commitments in the Communication
respond to recommendations called for in the COMPETE principles
advocated in the October 2013 report of the Prime Minister's Business
Taskforce report ("Cut EU Red Tape"). She generally
welcomes the Communication and the commitments it contains, and
more specifically:
· welcomes
the call for the burden of Council or European Parliament amendments
to proposed legislation to be assessed, as a step towards the
compilation of an annual statement of the cost of new EU regulation
recommend by the Taskforce;
· welcomes
the wide range of evaluation activity planned as part of the REFIT
programme; and
· indicates
that the Guidelines implement the UK's top priorities.
1.17 In his Explanatory Memorandum of 25 June the
Minister for Europe summarises the IIA under the headings of better
regulation, inter-institutional relations and the legislative
process. He generally welcomes the IIA but makes the specific
observations:
· the
Government will engage constructively with the institutions to
ensure that new legislative proposals address sufficiently the
needs of Small and Medium-sized Enterprises (SMEs) and micro-enterprises;
to strengthen quality control of Impact Assessments: and to encourage
EU burden reduction efforts, ideally through a burden reduction
target;
· the
implementation of EU legislation by Member States should provide
sufficient flexibility to address individual national characteristics.
Member States should also preserve full autonomy over plans for
implementation; and
· the
Government believes that there is much that can be improved in
engagement between the EU institutions and national parliaments
and will continue to underline the importance of this issue for
the UK during the IIA negotiations and elsewhere.
Previous Committee Reports
None.
1 "REFIT" stands for the Commission's Regulatory
Fitness and Performance Programme first proposed in December
2012. Back
2 As reported by Euractiv. Back
3 Article 5 of Protocol 2 On the Application of the Principles
of Subsidiarity and Proportionality. Back
4 Except implementing legislation. Back
5 To prevent the need to refer to multiple amending instruments. Back
6 Design to encourage early agreement to legislative proposals. Back
7 Concerning information to be provided by member States of their
transposition of EU directives. Back
8 Article 290 TFEU. Back
9 Article 291. Back
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