Memorandum by the European Commission
THE ORIGINS
OF COMMISSION
PROPOSALS
1. The right of initiative of the Commission
is one of the cornerstones of how the European Union works. From
the first, the founding fathers recognised the importance of having
a single, central point with the responsibility to identify the
general interest and encapsulate this in proposals for legislation.
The right of initiative therefore makes the
Commission ultimately responsible for the initiation of legislation[29]—though
there are of course defined cases where the Treaties state that
this responsibility is shared with the Member States (as well
as with other institutions and bodies in a number of other cases).
However, this does not mean that the political
origins of Commission proposals lie exclusively within the walls
of the Commission. On the contrary, a system has evolved where
legislation results from a complex interplay of different actors,
with the goal of ensuring that proposals made by the Commission
meet the objectives of the EU as set out in the Treaties in the
best way possible.
2. The rationale for legislation comes from
many sources. For example, legislation may be the automatic consequence
of commitments made in an international agreement. Community law
already in force often needs to be updated to reflect changing
realities, like scientific and technological change. Such factors
reflect the reality that legislation in force will never be static,
and will always need renewal.
The views of the other institutions are particularly
important. The formal rights of the European Parliament and the
Council of Ministers to invite the Commission to submit legislative
proposals are set out in Articles 192 and 208 of the Treaty. But
in practice, the informal political interplay of the different
institutions and political groups is the normal channel to make
the Commission aware of a demand for legislation. European Council
conclusions have become one way of inviting the Commission to
put forward proposals—often following a suggestion made
by the Commission, to help build early political momentum for
a proposal. Also important is the dialogue with forthcoming Presidencies
eager for the Commission to initiate a proposal during the Presidency—though
this might often impact more on the timing of proposals than on
whether or not proposals are made.
As for proposed new laws suggested by other
actors, economic operators have traditionally been an important
source of ideas—notably to reflect the desire of operators
to have common rules in the internal market. In such cases, care
is needed to ensure that such ideas are not motivated solely by
a desire for competitive advantage, but could further the objectives
of the Union. Other key actors are the social partners, NGOs and
civil society in general.
Various studies have been undertaken to try
to analyse the origins of different proposals. A study of proposals
in 1998 concluded that 35 per cent were motivated by the need
to update Community law to changing circumstances. Another 31
per cent was the result of international obligations. 17 per cent
flowed from express requests by the institutions, Member States
or economic operators.
A study of 2005 sought to use the same classification,
and saw updates of existing law at 31 per cent, international
obligations rising to 40 per cent, and only 8 per cent classified
as requests.
These statistics give a flavour of the importance
of different sources in volume terms. They should, however, be
treated with care. In the first place, there may be a number of
different sources inspiring the same initiative. In addition,
different measures have different degrees of political importance—in
2005, for example, there were 18 proposals appointing the Directors
of regulatory agencies, overshadowing in statistical terms the
14 Directives and Regulations adopted as priorities under the
Work Programme that year.
3. There are a variety of ways in which
the Commission makes it known that it is developing an initiative
in a particular area. This can come informally, through speeches
or press statements. It can come more formally, through planning
and programming documents such as the Annual Policy Strategy and
the Commission Legislative and Work Programme. The Annual Policy
Strategy sets in train a process of dialogue to feed in the views
of the other institutions, and the European Parliament passes
a resolution on the Work Programme—though it should not
be forgotten that, however useful these documents are as a tool
for dialogue, their primary purpose remains internal planning.
Consultations have grown to be particularly
important, with over 100 formal consultation exercises now launched
each year.[30]
The Commission has a clear interest in using consultations to
maximise the quality of its proposals, testing out ideas and listening
to views and experience from stakeholders. This interest has intensified
as enlargement has increased the diversity of the situations for
which the EU is seeking to legislate. The Commission also supplements
its general public consultations with targeted consultations—either
to specialists, through the use of expert groups and stakeholder
forums, or to those whose views carry particular weight, as in
the case of the arrangements set up in September 2006 for dedicated
consultation with national parliaments.
4. An example can help to illustrate the
reality of how a proposal is developed for adoption. In January
2008, the Commission put forward a complex and far-reaching package
of measures to address climate change and develop renewable energy.
This package has fundamental implications for European society
and the European economy, which will be felt by every EU citizen.
If the origins of the package are analysed, it can be seen that
they come from a wide variety of sources, including:
— Positions taken by the European Parliament,
the European Council, and the Council of Ministers.
— Stakeholder consultations and meetings.
— The international context, given
the knowledge that the arrangements of the Kyoto Protocol would
need renegotiation by 2012.
— A wider public and media debate which
proved very influential in creating political momentum behind
an ambitious approach.
In this case, the Commission decided to complement
these different steps with an extra stage of consultation. It
organised in depth face-to-face meetings with Member States, explaining
the rationale of the proposals and hearing Member States' own
experiences and concerns. This allowed the Commission to test
out the architecture developed for the package and to refine its
proposals in detail.
The most important single contribution to the
Commission's ability to make a detailed and ambitious proposal
was the agreement of the March 2007 European Council to precise
and binding targets, Member State by Member State. But the targets
had been proposed by the Commission in January 2007 in the form
of policy communications—texts which were in turn the fruit
of discussion and interplay between the Commission, the other
institutions, and other stakeholders.
5. So the Commission's right of initiative
should not be seen as implying that the Commission has a monopoly
on ideas. On the contrary, the Commission's role is rather to
sift through the ideas, to make a judgement between competing
interests, and to apply the test of the common European interest.
Then it takes its responsibility to make the final choice on whether
to make a legislative initiative, and if so at what point and
with what content.
2. QUALITY CONTROL
1. The process of developing the ideas needed
to initiate legislation is closely tied to the process of quality
control and Better Regulation.
This Commission adopted its Better Regulation
Agenda in 2005. It aims to ensure that all new initiatives are
of high quality, as well as to modernise and simplify the existing
stock of legislation. By improving the regulatory environment
in this way, the Commission also aims to help to stimulate entrepreneurship
and innovation, to realise the full potential of the single market,
and in turn promote growth and job creation.
2. Initiating major legislation therefore
means going through a process of impact assessment. The impact
assessment system is a tool for helping the EU institutions design
better policies and laws. It facilitates better-informed decision
making whilst the Commission is considering whether and how to
make a proposal, but also at later stages of the legislative process.
It requires proposals to have been tested against the principles
of subsidiarity and proportionality. It is also a way for the
Commission to ensure coherence amongst a wide range of proposals
with knock-on effects in different policy sectors. Finally, it
helps the Commission to communicate better about its proposals.
The quality of these assessments is overseen
by an independent Impact Assessment Board. This functions under
the authority of the President, and is composed of high-level
Commission officials who operate independently of the "home"
departments they come from. It provides advice and control on
methodology and quality, and draws on external expertise when
necessary. The Board's opinions are used when the Commission is
making its final decision, and are made public once the initiative
has been adopted.
In 2008 the Commission will carry out approximately
200 impact assessments, up from 130 in 2007. These assessments
are public, as are the opinions of the Impact Assessment Board,
and since 2007 a summary is made available in all official languages.
Impact assessment is now embedded in the working
practices and decision making of the Commission. It has changed
how policy is shaped and proposals are initiated. Proposals have
to be based on transparent evidence, stakeholder input and thorough
analysis of options. Impact assessments are conducted early in
the policy development process, so that alternative courses of
action can be thoroughly examined before a proposal is tabled.
This process is having a real impact on the
initiation of legislation. In 2007, the Commission stopped work
on three areas after concluding that EU action would not add sufficient
value added, in the areas of capital rights in listed companies,
cross-border transfer of registered offices, and the protection
of witnesses. In other cases, such as road safety, the scope of
action was reduced.
3. There is also a particular category of
new legislation worthy of mention: legislation introduced to simplify
or codify the existing stock of law and cut its administrative
burden. For example, over 100 of the initiatives put forward by
the Commission since 2005 have been part of a simplification programme.
This shows how it is important to look carefully at the origins
of "new" legislation, and not assume that this necessarily
represents a fresh direction in EU policy or aims at EU action
in a new area.
In 2005, there were 106 internet-based consultations
launched on this website, with 129 in 2006 and 112 in 2007. In
2005, there were 14 Green Papers adopted and 2 White Papers. The
figures for 2006 were 10 and 2 respectively, with 11 and 4 in
2007.
29 See the contribution by Commissioner Barnier and
Commissioner Vitorino to the European Convention on "The
Commission's right of initiative", CONV 230/02 of 3 September
2002. Back
30
All ongoing consultations are gathered together on a single website,
"Your Voice in Europe" (http://ec.europa.eulyourvoice/). Back
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