A new Interinstitutional Agreement to Improve the Quality of European Legislation

In May 2015, the European Commission presented a set of measures to deliver better rules for better results. This Better Regulation Agenda included the proposal for a new Interinstitutional Agreement on Better Law-Making to help the EU institutions work better together to promote the quality of Union legislation.

Between June and December 2015, the Commission, Parliament and Council negotiated an agreement which has been found in principle and endorsed on 15 December by the Commission and the Council. It must be approved by the European Parliament and the Council before it can enter into force in 2016.

The main changes under the new draft agreement include:

• Impact Assessment. The agreement reaffirms the commitment by all three institutions to impact assessment which should also address, whenever possible, the cost of non-Europe and the impact on competitiveness and the administrative burdens of the different options, having particular regard for SMEs (“Think Small First”), digital aspects and territorial impact. However, the co-legislators will perform impact assessment only on substantial amendments where it is necessary and appropriate for the legislative process. The definition of a ‘substantial’ amendment should be for the respective Institution to determine. Further, it has been removed from the text the faculty of each institution to call for an independent panel to carry out an assessment of regulatory quality following any substantial amendment to the Commission proposal.

• Ex Post Evaluation. In the context of the legislative cycle, evaluations of existing law and policy should provide the basis for impact assessment of options for further action. To support these processes, the European Parliament, the Council and the Commission agree, as appropriate, to establish monitoring, evaluation and reporting requirements in legislation. It has been specified that these requirements should avoid overregulation and administrative burdens, in particular on Member States.

• Public and Stakeholder Consultation. It is acknowledged as integral to well-informed decision-making and to improving the quality of law making. The Commission will in particular encourage the direct participation of SMEs and other end-users in the consultations. However, the eight week period following the adoption by the Commission of its proposal and the related impact assessment granted to public and stakeholder feedback by the proposal included in the Better Regulation package has been scrapped as well as the provision related to the accordance with minimum standards.

• Transparency of the Legislative Process. The three institutions will ensure the transparency of legislative procedures, on the basis of relevant legislation and case-law, including an appropriate handling of trilateral negotiations.

• Delegated acts. The agreement is accompanied by a common understanding under which the Commission will consult experts from Member States when preparing delegated acts. Access will be granted to EP and Council experts as observers. The three institutions will work jointly on criteria to distinguish between implementing acts and delegated acts after the agreement is concluded. Moreover, the three institutions commit to set up at the latest by the end of 2017 in close cooperation a joint functional register of delegated acts, providing information in a well-structured and user friendly way in order to enhance transparency, to facilitate planning and to enable traceability of all the different stages in the lifecycle of a delegated act.

• Goldplating. The agreement recognises the need to encourage Member States to be transparent about gold-plating (i.e. the practice of adding requirements when transposing an EU Directive), which may increase policy ambition but also introduce additional costs and red-tape.While the May proposal stated that before adopting additional substantial or procedural rules, Member States should commit to assess their impact, in particular as regards the administrative burden on businesses, administrations and citizens, and provide statement of reasons which specifically addresses those additional elements, the December text asks Member States only to make these elements identifiable.

• Simplification. The three institutions agree to cooperate continuously to update and simplify legislation and to reduce unnecessary regulatory burdens for business, administrations and citizens. They will take the Commission’s Regulatory Fitness and Performance (REFIT) Programme as a basis for this task. Addressing the request from most Member States to set targets for burden reduction, the Commission will also assess the feasibility of establishing in its regulatory fitness programme objectives for the reduction of burdens in specific sectors.

(Fabrizio Di Mascio)