Commission of the European Communities
General Guidelines for Legislative Policy, January
1996
INTRODUCTION
The Commission endeavours to be the melting pot for European
interests and to be at the service of the people at large. Since
the outset it has been open to outside influences, anxious to
ensure consistency between Community policies and mindful of the
consequences of the measures which it proposes.
The completion of the single market prompted an unprecedented
legislative simplification effort. The Commission is now directing
its legislative policy in that field towards the management and
adjustment of the common rules. At the same time this change of
direction should provide an incentive towards competitiveness,
the constant concern of business, whose contribution to employment
is all important.
Better law-making. That is the key slogan of this policy.
The task is to lay down guidelines on the basis of a few solid
principles, to reaffirm those existing rules which point in the
right direction, and to review the guidelines whenever this proves
necessary.
The aim is to ensure that legislative texts are of the proper
quality and consistency, that the drafting process is open, planned
and co-ordinated and that monitoring and evaluation are more thorough.
These guidelines reflect the Commission's response to the
challenges now facing the Community's decision-making mechanisms.
They will not be fully effective unless the other institutions
and the Member States give their unreserved support to the campaign
for quality, consistency and transparency.
I - CURRENT ISSUES
Various instruments on legislative procedures are available
to Commission staff:
- the Commission's Rules of Procedure
and the provisions for implementing these Rules;
- the Secretariat-General's Institutional
Vademecum, Part III of which lays down various guidelines on legislative
policy;
- "Legislative Drafting",
a manual for Commission departments, issued at regular intervals
by the Legal Service;
- "The principle of subsidiarity",
the Commission's communication to the Council of 27 October
1992 (SEC(92) 1990 final), together with subsequent instructions;
- "Better law-making", Commission
report to the Madrid European Council (CSE(95) 580);
- "Information, communication,
openness", a compendium of documents approved by the Commission
in 1993 and 1994 (Publications Office, 1994).
In addition the Commission has adopted various operational
decisions, particularly as regards environmental and small business
impact assessments. These decisions have been followed by the
issue of instructions to staff.
The Manual of Operational Procedures, which is regularly
updated by the Secretariat-General, sets out the rules to be observed
and the guidelines to be followed. It is, therefore, the reference
work for staff use.
II - BETTER USE OF THE EXISTING TOOLS
Clear guidelines have been laid down, but steps must be taken
to ensure that they are properly applied.
Consistency
Consistency between the Commission's various policies and
commitments requires that the institutions' activities be concentrated
on the priorities fixed at political level and that there be synergy
between the measures taken. The priorities are listed in the annual
work programme. There can be no synergy unless the various departments
concerned, acting on the authority of the responsible Member of
the Commission and in conjunction with the Secretariat-General,
co-ordinate their activities from the earliest stage in the preparation
of initiatives. The rules on inter-service co-ordination are quite
clear on the subject. Special attention is paid to these principles
in the annual work programme.
Action 1
The Commission reminds staff of the importance and desirability of strict observance of the existing rules on the co-ordination and planning of its work so that legislative activities can be efficiently managed and appropriate information strategies drawn up. Inter-service co-ordination must take place at the earliest possible stage in the drafting process.
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Rationalisation and modernisation of assessments
The Commission has gradually come to attach a variety of
assessments to its legislative initiatives, notably by means of
the small-business impact form and of the environmental impact
study. The assessment of the impact of any proposal must be made
with particular care. In the future, action is needed on two fronts:
- rationalisation: an overall approach
must be taken. The duplication of work must be avoided. Analyses
should make for consistency rather than diversity. Assessments
must be proportionate ie suited to their purpose. The information
provided by assessments must be specific and accompanied by figures,
where possible;
- modernisation: new methods of assessment
may be necessary in various areas.
To put it simply, the approach must be one of the spirit-to
assess the common interest. The Explanatory Memorandum is therefore
the best place for setting out the results of such assessment.
Action 2
(a) The assessment of the impact of a proposal is important and must be made with particular care;
(b) By the end of 1996, departments are asked to examine, together with the Secretariat-General, the need for the rationalisation and modernisation of assessments and the ways in which they can be made.
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Systematic monitoring of legislation
Assessment should not come to an end with the adoption of
a proposal. It should continue throughout the external consultations,
the legislative process and thereafter. The effectiveness of current
legislation and its possible secondary effects must be verified
and brought under control. Appropriate corrective measures must
be taken. The guidelines laid down by the Commission for the improvement
of financial management must be reflected in the legislative field.
The Commission prepares a wide range of assessment reports,
either of its own motion or by virtue of duties imposed by the
legislation. To maximise the benefits of assessment, the administrative
and financial resources allocated for this purpose should not
be dissipated on the preparation of unnecessary reports.
Action 3
On the basis of regular assessments by departments, the proper initiatives must be taken regarding legislation which would be reviewed or repealed.
At the same time efforts devoted to such assessments must be concentrated to maximise their impact and usefulness.
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III - WIDER EXTERNAL CONSULTATIONS
There are various instruments and arrangements to allow the
views of outsiders to be taken into account:
- the Commission's annual work programme
is published in the Official Journal and as a supplement to the
Bulletin, and it is debated in the European Parliament. This programme
lists the Commission's political priorities and specifies the
ares in which the Commission plans to hold wider consultations;
- the Commission organises hearings
or information seminars;
- advice is received from the advisory
committees or groups of independent or national experts set up
by the Commission;
- the social partners are consulted;
- notice of initiatives is given in
the Official Journal, summarising the planned measure and providing
practical information on how to obtain the relevant documents,
together with details of the department responsible and the time
limits applicable;
- communications, white papers and
multi-annual action plans are published on the initiatives or
guidelines which the Commission is planning to adopt in this or
that area;
- green papers are published in order
to sound out the views of the public and interest groups on the
various options;
- documents of public interest are
published whenever possible and made available in as many different
forms as possible.
This diversity of instruments reflects the flexibility of
the approach adopted by the Commission. The methods used to obtain
outside opinions must meet the requirements of each sector, depending
on the nature of the instrument. Openness must not, however, create
such an administrative burden that it is doomed to end in failure.
Lastly, the Commission's powers of initiative must be safeguarded.
Action 4
The policy adopted in 1992, whereby the widest possible external consultation should be held on all new Commission initiatives, is re-affirmed.
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IV - SPECIFICATIONS FOR LEGISLATIVE TEXTS
Legislative texts must:
- specify the objective pursued;
- have a clearly-identified legal basis,
of which there must be only one wherever possible and which must
be consistent with the recitals and the actual articles;
- comply with the principles of subsidiarity
and proportionality;
- aim at legislative and administrative
simplification, both at Community and at national level;
- be simple, concise and clearly worded;
- be consistent with the Commission's
priorities and actions;
- be based on rationalised and modernised
assessments which provide a genuine evaluation of the common interest;
- be subject to assessment throughout
the decision-making process and the period of implementation;
- be the result of broader external
consultations.
Action 5
Departments are asked to refer to the legislative checklist annexed hereto. The Secretariat-General will periodically update this checklist, particularly following any review of assessments.
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V - CONCLUSION
It is recommended that the Commission:
- approve the guidelines set forth
in this memorandum, and in particular the five actions specified;
- instruct the Secretariat-General
to monitor the implementation and development of these guidelines.
ANNEX
Legislative Checklist
The Explanatory Memorandum must satisfy the following requirements:
1. JUSTIFICATION AND OBJECTIVE: reference to the Commission's
work programme.
2. LEGAL BASIS
3. THE TEXT MUST BE READER-FRIENDLY AND USER-FRIENDLY: It
must be clearly worded, simple in presentation and content, and
concise. It should not stretch to more than twenty pages.
4. SUBSIDIARITY AND PROPORTIONALITY
- What are the objectives of the planned
measure in relation to the Community's obligations?
- Does the measure fall within the
Community's exclusive competence or is competence shared with
the Member States?
- Where competence is shared, apply
the subsidiarity test:
- What is the Community dimension of
the problem?
- Necessity test: can the objectives
not be adequately achieved by the Member States?
- Effectiveness test: what is
the most effective solution, that achieved by the Community means
or that achieved by national means? What specific added value
is contributed by the planned Community measure and what would
be the cost of taking no action?
- Proportionality test: are
the means of Community action proportionate to the objectives?
- What is the most suitable instrument
for achieving the objectives? (Recommendation, financial support,
mutual recognition, legislation etc)
- In the case of legislation, is the
scope, duration or intensity greater than necessary?
5. SIMPLIFICATION: (legislative and administrative) any advantages
or constraints resulting from the proposed measure, both for the
Community and for the Member States, should be explained in detail.
6. CONSISTENCY WITH OTHER COMMUNITY BODIES
7. EXTERNAL CONSULTATIONS: an account must be given of the
procedures and outcome of such consultations.
8. ASSESSMENT: every instrument must be subject to assessment,
procedures and techniques should be specified.
9. ASSESSMENT OF FRAUD RISKS
10. FINANCIAL STATEMENT: (a separate document showing the
budgetary implications and the human and administrative resources
required).
