Lobbying in practice – Better Regulation

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Better Regulation – A Guidebook

 

A core reference text is the Better Regulation Guidelines and Toolbox. It is a handy set of guidelines that cover the entire policy cycle. Including:  Planning and political validation of initiatives, Impact assessment, Stakeholder consultation, Monitoring and evaluation, Legal drafting and Implementation plans

Further granularity is provided in Toolbox. This contains 59 separate short tools covering the entire policy cycle. It is the operational “hands-on” guidance on the how/what/why. It is updated. You should have a well-thumbed and cross-indexed copy.

It is not new to the Commission. It started in President Barroso’s 2nd term, was mainstreamed under President Juncker, and is set to continue.

In the Commission’s words, Better Regulation aims to “Support evidence-based policymaking and political decisions of the Commission and the European Parliament and the Council.”

This provides a good visualization of the process:

 

 

What is Better Regulation

  1. Evidence-based policy making
  2. Process to deliver better quality legislation and policy
  3. A system to consider second and third and order impacts from the very beginning
  4. A system to minimize duplication & unnecessary costs
  5. Involve stakeholders at an early stage

 

What it is not

  1. Deregulation
  2. Block, although a restraint, on proposals being developed
  3. Restraint, but not a block, political intervention
  4. A restraint, not a block, on animal spirits leading to new proposals being tabled.

The Guidelines and Toolbox chunk down every step in the preparation, adoption, implementation and application of EU policies and law. It is a key road map.

 

 

The key steps – box

 

The first step – Political validation

  1. 1stVice President provides “political validation” before any Directorate-General (DG)l starts work on a “major new initiative”.
  2. DG writes a roadmap or inception impact assessment (in this case an Impact Assessment is needed)
  3. Sec-Gen publishes plain English text online (here).
  4. Stakeholders have 4 weeks to reply.
  5. You need an impact assessment when the measure is expected to have (1) “significant impacts” and (2) where the Commission has a ‘political choice’ to make.

 

The second step – Impact Assessment

  1. The ISG (Inter-Service Group) prepares the Impact Assessment
  2. Considers all policy options
  3. Consider the practical feasibility of implementing the options & spell out impacts on innovation
  4. Quantity (to the extent possible) social, economic and environmental for the policy options
  5. Not a show trial where a DG or Commissioner works to make the facts support their preferred outcome.

 

Step 3 – the Regulatory Scrutiny Board

  1. Do not lobby the Regulatory Scrutiny Board. Submit a first-class case and evidence during the Public Consultation.  Evidence-based policy making is what the label says it is.
  2. The lead Directorate General sends the draft Impact Assessment ( + executive summary and minutes) to RSB
  3. Documents sent at least 4 weeks before the meeting of RSB
  4. RSB review draft Impact Assessment against Better Regulation guidelines
  5. Not a block on a proposal’s adoption. Even if 2 negative opinions the proposal can go forward for political adoption.

 

Step 4 – Inter-Service Consultation

  1. Check that feedback of the RSB incorporated into draft Impact Assessment and proposal
  2. Ensure that the Explanatory Memorandum spells out how the subsidiarity and proportionality tests were passed
  3. If no Impact Assessment, the Explanatory Memorandum will explain why
  4. Explain in the staff working document an implementation plan that explains how complex legislation will be implemented
  5. Take into account relevant REFIT reports

 

Step 5 – Public Consultation

  1. All feedback needs to be considered. A summary of feedback is prepared.
  2. Too many people think “consider” is the same as “agree with”. If your case is weak and evidence not strong, it will be “considered” and discarded
  3. Stakeholders have 4 weeks (sometimes shorter and sometimes longer) to give feedback on roads maps and inception impact assessment
  4. Stakeholders have 12 weeks to give feedback on impact assessments
  5. Evidence rich submissions are needed, but too often not provided

 

 

 

 

 

An Overview for a major initiative

Box: An overview of Better Regulation

  1. Planning

Political Validation

All Commission policy initiatives must receive political validation from the College. This is done through the internal IT system, Decide. Services must enter the major (legislative) and non-major (delegated and implementing acts) initiatives in Decide.  Work cannot start until validation is given by the responsible Commissioner(s).

Timeline: 12 months before the adoption of a major initiative; 3 months before the adoption of a non-major initiative.

Roadmaps & Inceptions Impact Assessments

Major initiatives are started with the publication of a roadmap or inception impact assessment. They give a description of the problem and steps for consultation. An inception impact assessment will contain an initial look at the policy options.

Timeline: 4 weeks for the public to comment on the roadmap/inception impact assessment

 

Consultations

The Commission needs to carry out on-line public consultations for initiatives that have no impact assessment (e.g. legislative proposals) evaluations, and fitness check, and Green Papers. They can also carry out targeted consultations.

Timeline: 12 weeks for Public consultations

 

Impact Assessment

If the legislative proposal is expected to have significant economic, environmental or social impacts the Commission needs to carry out an impact assessment.  The Impact Assessment is prepared by the Inter-Service Group (lead Directorate-General (DG) and other DGs). This requires a 12-week public consultation and it is subject to quality review by the Regulatory Scrutiny Board (RSB).  A positive opinion is needed before a proposal can go ahead, although the rules allow for exceptions to be made.

Timeline: An Impact Assessment takes on average 12 months.

 

  1. Adoption

Consultation after the publication of the proposal

After the Commission has published a legislative proposal and submitted it to the European Parliament (EP) and Council, the public can comment on the proposal and impact assessment.  After the 8 weeks, the Commission summarizes the feedback and present it to the EP and Council

Timeline: 8 weeks

 

EP/Council Impact Assessment

The EP and Council committed in the 2016 Inter-Institutional Agreement on Better lawmaking to carry out impact assessments on substantial amendments. They determine when their amendments are substantial.

Timeline: Varies.

 

Trilogues

The trilateral negotiations between the EP, Council and Commission to reach political agreement on legislative texts is left untouched by Better Regulation in practice. The four-column document is not public, although widely leaked.

TimeLine: Varies.

 

 

  1. Implementation

Implementation

Major legislative proposals are accompanied by an implementation plan.

Secondary legislation

The EU adopts delegated acts, implementing acts and Regulatory Procedure with Scrutiny (RPS) measures.

They can all benefit from an impact assessment if they are expected to have a significant economic, environmental or social consequences. If they are politically sensitive, they need to be flagged to the College via Decide.

Draft delegated acts need to be circulated to Member State officials in Expert Groups. EP and Council experts have the right to attend the Expert Group meetings.

Timeline: 4 weeks of public feedback on draft secondary legislation

 

Soft law guidance 

Non-binding documents like guidelines and FAQs prepared to help the Member States or stakeholders apply and implement EU law must get the endorsement of the College of Commissioners.

 

  1. Review

REFIT Programme

The Commission’s Regulatory Fitness and Performance Programme (REFIT) aims to make EU law simpler, more efficient, and less burdensome.

Evaluations & Fitness Checks

All evaluations and fitness checks include a 12-week public consultation. Al major ones are assessed by the RSB.

Timeline: 12-18 months.

REFIT Platform

Member States and stakeholders can bring their own proposals to make EU legislation ‘fit for purpose’.

Timeline: 6-9 months for the Platform to adopt an Opinion.