Impact Assessments improve law making.
They are used for the important “Commission initiatives that are likely to have significant economic, environmental or social impacts”.
They are to be used for ‘legislative and non-legislative initiatives as well as delegated acts and implementing measures’.
All impact assessments and the related opinions of the Board are published online once the Commission has adopted the relevant proposal.
These documents are invaluable for legislators and the public. They point out the strengths and weaknesses behind the proposal. The opinions of the Regulatory Scrutiny Board (RSB) are good to review. They highlight fuzzy thinking and weak analysis.
A Basic Problem
The basic problem is the Commission only makes the Impact Assessment and Opinion of the RSB publish them online ‘once the Commission has adopted the relevant proposal’.
For Ordinary Legislative Proposal, the Impact Assessment and Opinion are released at the start of the legislative journey. They are published along with the legislative proposal sent to European Parliament and Council.
For secondary legislation, the impact assessment is made public at the end of the legislative journey, and only when the Commission adopts the draft measure.
This means the intellectual foundation, or the lack of, behind the Commission’s proposal is kept away from pubic scrutiny until it is too late. Any errors in the impact assessment can’t be raised at the right time.
As secondary legislation is around 97% of the Commission legislative output, you can understand why some officials may want to keep the public in the dark. If you can’t see the impact assessment until after it is sent to the EP and Council for ‘scrutiny’, your life is going to be a lot easier.
Any fuzzy thinking or weak analysis only faces getting past colleagues during inter-service consultation. Indeed, I am sure there are ways to run a public consultation that by-passes those whose opinion you may prefer to ignore.
As you can see below, the Commission release the key documents to support their case at very different times.
Secondary v Ordinary
Example 1: Eco-design requirement for air heating products – Secondary Procedure: RPS
June 2009: Commission launch preparatory study
20 September 2010 : Commission to Propose Eco-design Criteria for Central Heating
19 April 2011 : First Stakeholder meeting
27 September 2011: Second stakeholder meeting
5 March 2012: Draft Report of preparatory study
17 April 2012: Third stakeholder meeting
9 July 2012: Final Report of preparatory study
25 September 2013: Consultation Forum meets
19 February 2014: Impact Assessment Board Opinion (link)
13 August 2015: WTO Notification
15 September 2015: WTO Notification period ends
8 December 2015: Committee on the Ecodesign and Energy Labelling of Energy-using Products approve
23 April 2016: Scrutiny Deadline for EP and Council
30 November 2016: Commission adopt draft measure
30 November 2016: Impact Assessment published
20 December 2016: Commission Regulation published in Official Journal
Example 2: Electricity Market Design (Electricity Regulation) – procedure: ordinary
October 2015: Inception Impact Assessment launched
16 September 2016: RSB issue negative opinion
7 November 2016: RSB issue revised positive opinion
30 November 2016: Proposal on the Internal Market for electricity
30 November 2016: Impact Assessment published
18 January 2019: Council endorses compromise agreement
Case C 57/61 P – Client Earth v Commission
In case C 57/61 P, ClientEarth v. Commission, the European Court of Juctice’s Grand Chamber dealt with access to impact assessments. The Commission had rejected ClientEath’s application for the impact assessment. The Grand Chamber rejected the Commission’s secretive approach.
The judgement deserves reading in full.
I highlight three paragraphs:
- ‘… the exercise of those rights presupposes not only that those citizens have access to the information at issue so that they may understand the choices made by the EU institutions within the framework of the legislative process, but also that they may have access to that information in good time, at a point that enables them effectively to make their views known regarding those choices. (para 84)’
- ‘that not only acts adopted by the EU legislature, but also, more generally, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, fall to be described as ‘legislative documents’ (Para 85)’
impact assessment reports and the accompanying opinions of the Impact Assessment Board contain, in such a context, information constituting important elements of the EU legislative process, forming part of the basis for the legislative action of the European Union. (Para 91)
There is no reason for the European Commission to continue their practice of issuing impact assessments for ordinary and secondary legislation at different times. Based on the case above, the Commission should put on the line (link) when they provide their opinion.
The current Commission’s practice on releasing these vital documents for secondary legislation appears to be at odds with the (1) ideas behind Better Regulation and (2) the ruling of the European Court of Justice.