Annexes to COM(2018)703 - Principles of subsidiarity and proportionality: Strengthening their role in the EU's policymaking - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)703 - Principles of subsidiarity and proportionality: Strengthening their role in the EU's policymaking. |
|---|---|
| document | COM(2018)703  |
| date | October 23, 2018 |
The application of these better regulation tools has promoted more proportionate legislative proposals16. The effective application of EU law is also essential so that its intended benefits are delivered in practice. Impact assessment and evaluation help ensure effective implementation. They are complemented by a more strategic approach17 to the implementation and enforcement of EU law, including through helping Member States to implement EU law correctly and by focusing infringement procedures on systemic problems where the Commission’s enforcement action can make a real difference.
The Commission is currently taking stock of how this better regulation policy is working and is actively seeking the views of all interested parties18. The stocktaking exercise will aim to identify whether and how our better regulation tools can be used more effectively and efficiently, including strengthening the role of subsidiarity and proportionality in our policymaking.
The Report of the Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”
The Task Force comprised members from the Committee of the Regions and national Parliaments. It looked at the role of subsidiarity and proportionality in the work of the institutions, the role of local and regional authorities in the EU’s policymaking and whether responsibility for policy areas or competences could be left or returned to the Member States. In just over six months the Task Force compiled a comprehensive and focused response to these questions drawing on the contributions of many stakeholders in
the process.19
The Task Force’s report presents nine recommendations together with a number of actions to help implement them. They cover the Commission’s policy preparation processes, the role of national Parliaments in scrutinising Commission proposals and the legislative procedure.
The key findings are:
– A new way of working is needed to make better laws based on a common understanding of subsidiarity and proportionality across the policy cycle.
https://ec.europa.eu/info/law/law-making-process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/refit-platform en
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https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2016:123:TOC
For example, see Box 1 of Communication COM(2017) 651 final; Completing the Better Regulation Agenda: Better solutions for better results; https://ec.europa.eu/info/sites/info/files/completing-the-better-regulation-agenda-better-solutions-for-better-results_en.pdf
C(2016) 8600, EU Law: Better Results through Better Application; of 21.12.2016.
https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-2332204_en
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More “active subsidiarity”20 is needed which gives a stronger voice to the local and regional authorities and national Parliaments and which promotes ownership of what the Union does.
The Union should use its resources more efficiently and prioritise its actions but there are no reasons to re-delegate Treaty competences or entire policy areas
back to the
Member States.
The Task Force’s recommendations are set out in the Annex to this Communication. Many of the recommendations touch upon the practical application of better regulation. The Commission supports the analysis put forward by the Task Force on the need to strengthen the application of the subsidiarity and proportionality principles in the EU’s policymaking as part of the wider better regulation agenda. It is essential that the 41 national Parliament chambers, 74 regional legislative assemblies, the 280 regions and the 80 000 local authorities, who are at the forefront of implementing EU laws, are more fully engaged in the policy process. Active subsidiarity and a new way of working with these entities will help deliver policies that work while strengthening the understanding and ownership of what the Union does.
4. Actions to strengthen the role of subsidiarity and proportionality
The Commission has considered carefully the Task Force’s report and highlights the areas below where action is necessary.
4.1. Promoting
a common understanding of subsidiarity and proportionality
While all actors involved in the EU’s policymaking must respect the principles of subsidiarity and proportionality, there is no common definition to support each institution’s work. Protocol No. 2 of the Treaties on subsidiarity and proportionality no longer contains the illustrative criteria that once were a part of a similar protocol annexed to the Amsterdam Treaty.
The Commission published the first ever integrated guidance on how it would implement better regulation in May 2015. This guidance covers the entire policy cycle including the assessment of subsidiarity and proportionality21. This guidance already incorporates the criteria originally contained in the Amsterdam Treaty. The Task Force advocated a tool to make assessments of subsidiarity and proportionality and to present the results in a structured way (the “grid”)22. The tool is annexed to this Communication. The Commission does not currently present the results of its assessments in the form of the “grid” but, in the future, the Commission intends to integrate the grid into its better regulation guidance and to use it as part of the impact assessments, evaluations and explanatory memoranda that accompany its legislative proposals. These proposals are
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The term “active subsidiarity” was used by the Task Force to denote an improved engagement with all stakeholders and local and regional authorities throughout the entire policy cycle. See pages 8-9 of the Task Force's report.
See Tool #5 on Legal base, subsidiarity and proportionality: https://ec.europa.eu/info/files/better-regulation-toolbox-5_en
The “grid” contains a series of questions and issues to guide the analysis of subsidiarity and proportionality. It would be used by the Commission in a balanced way as part of the Commission's better regulation agenda building on the need to undertake analyses which are proportionate to the
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transmitted to the European Parliament, the Council, the national Parliaments and (where relevant) the consultative committees at the start of each legislative procedure.
The Commission notes that the European Parliament and the Council both recognise the importance of subsidiarity in their rules of procedure and that both are committed to take full account of the Commission’s impact assessment during the legislative procedure23. The full benefit of the assessment grid can only be realised if it is used by all parties in the decision-making process. It is now for the European Parliament and the Council to decide whether additional, specific and systematic consideration should be given to the issues of subsidiarity and proportionality during the legislative procedure. In particular, the co-legislators often introduce substantial amendments to the Commission’s proposals, but the impacts of these amendments and concerns about subsidiarity and proportionality are infrequently assessed. The Commission calls on the co-legislators to implement more effectively their commitment to prepare impact assessments of their substantial amendments24. The Commission also considers that the national Parliaments should use the assessment grid presented above and adapted to their purposes if necessary. The Commission believes that this will give greater impact to their reasoned opinions but will not prevent them from expressing other concerns in their opinions not related to subsidiarity and proportionality.
It is the Commission’s view that there is scope in many cases for the views of national and regional Parliaments and those of local and regional authorities to be reflected better by each Member State during the legislative procedure. These administrative levels are closest to the actual implementation of legislation and have a wealth of experience to share. While it is for the co-legislators to decide whether it is appropriate to involve representatives of local and regional authorities during the legislative procedure, the Commission considers that increased transparency of the legislative procedure would enable greater awareness and engagement of local and regional authorities and the public generally. The Commission supports the ongoing efforts to make the legislative procedure more transparent and accessible via improvements to EUR-Lex25 and pursuant to the Interinstitutional Agreement on Better Law-Making (such as the joint legislative database). Follow-up of the recent case law of the Court of Justice26 and the findings of the Ombudsman on the transparency of trilogues will improve transparency and help all interested parties to participate in the democratic decision-making process. The Commission stands ready to participate constructively in this work.
In any event, the Commission will continue to make the co-legislators aware of the feedback it receives about its proposals, including from local and regional authorities, in fulfilment of its commitment under the Interinstitutional Agreement on Better Law-Making.
§14 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making; OJ L 123, 16 April 2016, p.1-14. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.123.01.0001.01.ENG
§15 of the in the Interinstitutional Agreement on Better Law-Making.
EUR-Lex is a website which offers easy access to EU law. Available in 24 languages, it includes treaties, legislation, international agreements, preparatory acts, legislative procedures, case law, parliamentary questions and many other types of documents; https://eur-lex.europa.eu/homepage.html.
T-540/15 De Capitani v Parliament; http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30ddfb6ef4af4df246c6a5689c
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The Commission intends to:
• Incorporate the grid for assessing subsidiarity and proportionality in its better regulation guidance and use the grid to present its findings in impact assessments, evaluations and explanatory memoranda.
• Use the grid as guidance in its com munication with national Parliaments.
• Make more visible the feedback it receives about its proposals from local and regional authorities to the European Parliament and the Council in each legislative procedure.
4.2. Enabling national Parliaments to scrutinise
more effectively
National Parliaments have the right to raise concerns related to subsidiarity during a period of eight weeks following receipt of the Commission’s proposal27. The Commission already excludes the month of August when determining the eight-week deadline. The Commission believes that the period over Christmas and the New Year should also be excluded but cannot decide this unilaterally as any extension also affects the work of the European Parliament and the Council. The Commission invites the views of the co-legislators on this with a view to accommodate the wish of national Parliaments in a pragmatic way that does not affect relevant Treaty provisions.
In its annual report on subsidiarity and proportionality, the Commission presents those legislative proposals which have received the greatest number of reasoned opinions. However, the Commission agrees with the Task Force that it should give greater visibility to the views of national Parliaments. The Commission intends to prepare an aggregated response where a significant number of national Parliaments have raised similar concerns even where the threshold for a “yellow card” is not attained. The opinions of regional Parliaments with legislative powers sent directly to the Commission could also be reflected without affecting the primary role of national Parliaments in the operation of the subsidiarity control mechanism. The aggregated response would set out the Commission’s position on the issues raised and be transmitted to the European Parliament and the Council as rapidly as possible given the desire not to delay the legislative procedure.
The Commission encourages national Parliaments to consult regional Parliaments and to cooperate on EU matters. This may help give greater visibility to the concerns of regional Parliaments and to improve the assessment of subsidiarity-related issues, but the Commission recognises that such cooperation remains wholly a matter for the Parliaments in question.
The Commission intends to:
• Continue to discount the month of August when determining the 8-week period for national Parliaments to submit reasoned opinions.
• Explore with the European Parliament and the Council whether the Christmas/New Year period could also be discounted as requested repeatedly by national Parliaments.
• Give greater visibility to the views of national Parliaments reasoned opinions by providing aggregated responses, where relevant, and targeting their concerns and identifying proposals raising most comments in its annual reports on subsidiarity and
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proportionality.
4.3. More
active involvement of local and regional authorities
This Commission has opened up its policymaking processes to outside involvement in addition to its proactive engagement with socio-economic partners on developing and implementing legislation in the social and regional policy fields. The Commission is already actively consulting social partners including the Treaty-based two stage consultation in the social policy field. Roadmaps are published at the outset of each new initiative that explain what the Commission intends to do. These invite feedback and allow all interested parties to prepare for the various consultation activities that follow. Public consultations now accompany each major initiative and the questionnaires are translated into all official languages for those in the annual work programme. Draft delegated acts and implementing acts are also published online before they are finalised. The Commission also transmits to the co-legislators the feedback it receives from all stakeholders (including local and regional authorities) on its proposals at the start of the legislative process28.
Despite these advances, the important voice of local and regional authorities is often unheard in the early phases of policymaking. Local and regional authorities and regional assemblies are different to other stakeholders because they are at the forefront of implementing Union law. As such, greater efforts are needed by all to ensure that their experience and views are captured better in the policymaking process. In the context of the ongoing better regulation stocktaking exercise, the Commission will examine how to revise its questionnaires so that space can be dedicated to the issues of concern to local and regional authorities. The Commission will also improve how it reports on the views of local and regional authorities in its impact assessments, evaluations and explanatory memoranda. For its part, the Commission encourages local and regional authorities to sign-up to the Commission’s web portal29 where all interested parties can contribute to policymaking. It will also publicise important initiatives on social media but organisations representing local and regional authorities should consider how they can promote the engagement of local and regional authorities.
The Commission intends to:
• Amend its better regulation guidance to highlight the importance of capturing the views and experience of local and regional authorities.
• Revise its public consultation questionnaires to include questions about issues relevant for local and regional authorities including regional assemblies.
4.4. Improving assessment and
presentation of relevant impacts
Union legislation may have particularly significant effects at local and regional levels and for public authorities. The Commission has developed methodologies for territorial impact assessments30 which have been tested on a number of legislative proposals since
28 Pursuant to §33 of the Interinstitutional Agreement on Better Law-Making.
29 https://ec.europa.eu/info/law/contribute-law-making_en
2016. The Commission’s approach is to assess these impacts when they are relevant for the decision-making process and it is proportionate to do so (for example, if there are large variations between regions). The Commission intends to raise the importance of this issue in its guidance to its staff and, as indicated earlier, will present more clearly its assessments of subsidiarity (including EU added value) and proportionality in its impact assessments, evaluations and explanatory memoranda. However, it is not always obvious that such effects are likely or that the raw data exists to allow a detailed assessment to be made. The more active engagement of local and regional authorities in consultation processes is an essential element of improving the quality of assessments of territorial impacts.
The Commission intends to:
• Amend its better regulation guidance to highlight the importance of screening and assessi ng terr itor ia l impacts.
• Present more clearly its assessments of subsidiarity, proportionality and information about who is affected (and how) in its impact assessments, evaluations and explanatory memoranda.
4.5. Evaluating existing
legislation from the perspective of subsidiarity
The mission of the Commission’s Regulatory Fitness Programme (REFIT) is to keep Union legislation fit for purpose and to simplify it wherever possible without weakening its intended objectives31. The REFIT Platform assists the Commission in this task. The Commission maintains a five-year rolling plan of all evaluations of existing legislation and each of these should assess the ongoing relevance, economic efficiency, potential to simplify and the EU added value of the legislation. The most important evaluations are also annexed to the Commission’s annual work programme.
The Platform’s work will continue until the end of this Commission. We will listen to the views of the Platform members and assess carefully the results of stakeholder consultation we launched on better regulation. However, we believe that there is already a convincing case to reshape the Platform to address in a more focused way the issues raised by the Task Force. For example, widening the focus of the Platform to address subsidiarity, proportionality, legislative density32 and the role of local and regional authorities in implementing EU law in addition to its usual focus on simplification. We think that the composition will also need to change to include a greater presence from local and regional authorities by for example, replacing the experts from the Member States. Stronger links to the work and networks of the Committee of the Regions could also be considered. The establishment of a new Platform will, however, be for the next Commission to decide. In the meantime, the Commission welcomes the intention of the
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COM(2017) 651 final; Completing the Better Regulation Agenda: Better solutions for better results; https://ec.europa.eu/info/sites/info/files/completing-the-better-regulation-agenda-better-solutions-for-better-results_en.pdf
In respect of legislation, “density” relates to the detailed technical prescriptions agreed by the Legislator on how the objectives are to be attained which may influence the degree of discretion for national, regional and local authorities when implementing the legislation (see the paper from Professor Dougan presented to the Task Force meeting of 15 March 2018):
https://ec.europa.eu/commission/sites/beta-political/files/dougan-notes-for-task-force-march-
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Committee of the Regions to establish a network of regional hubs to channel information from local and regional authorities into the policymaking process and looks forward to the results of the pilot project involving twenty regions.
The Task Force raised concerns about the use of delegated and implementing acts where the Commission is empowered by the European Parliament and the Council to adopt specific rules to implement EU law in a timely manner. While these acts are not scrutinised by national Parliaments as part of the operation of Protocol No. 2 of the Treaties, this Commission has significantly improved the transparency around delegated acts and implementing acts33. The draft legal text is placed online for four weeks before finalisation. All interested parties now have an opportunity to engage meaningfully with the Commission on the content of each draft act. When evaluating existing legislative acts, the Commission will in the future ensure that the REFIT programme looks more closely at the related delegated and implementing acts.
The Commission intends to:
• Ensure that when evaluating the existing stock of legislation, evaluations look more closely at subsidiarity, proportionality, legislative density and the role of local and regional authorities.
• Set out the changes in scope and composition of the REFIT Platform in order to reshape it and to address these issues in the stockta king of better regulation.
• Ensure that relevant delegated and implementing acts are addressed syste matically as part of evaluations.
5. Conclusions and next Steps: the conference in bregenz
This Commission has delivered a focused and prioritised programme of political initiatives. It has acted where necessary on the issues that really matter. It welcomes the Task Force’s important conclusion that the Union adds value in all areas where it acts. At some point, however, we – the institutions and the Member States – will have to confront the fact that we cannot continue to do more to tackle the growing challenges we face with the resources we currently have available. The Commission agrees, therefore, with the Task Force that activities will have to be prioritised and resources used more efficiently. One aspect is the early adoption of the Commission’s proposals for the next Multiannual Financial Framework that is essential to equip the Union with the resources it needs.
The Task Force has also proposed a new way of working based on active subsidiarity and a more dynamic engagement of all stakeholders and all government levels throughout the policy cycle. This would mark an important change in the European Union’s policy process bringing greater quality and legitimacy to the laws it adopts. The Commission has set out the changes it intends to make in response to the Task Force and now invites the European Parliament, the European Council, the Council, national Parliaments, national governments and local and regional authorities to consider how they will respond.
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The Austrian Presidency will host a conference on 15-16 November in Bregenz, Austria entitled “Subsidiarity as a building principle of the European Union”. This conference will provide an opportunity for a meaningful dialogue on strengthening the role of the principles of subsidiarity and proportionality in the EU’s policymaking34. It could also provide a valuable input to the Leaders’ summit in Sibiu next year.
Issues for the conference in Bregenz
• All relevant institutions and bodies should clarify whether they will use the common assessment grid adapted to their needs to examine the subsidiarity and proportionality dimensions of Commission proposals.
• The Committee of the Regions representing local and regional authorities should consider how they can raise awareness amongst their members about the many
opportunities to contribute directly to the EU’s policymaking. Other organisations
representing local and regional authorities could also intensify their awareness-raising activities.
• The Committee of the Regions should establish the “regional hubs” to channel the experience of local and regional authorities more effectively into the EU’s
policy making.
• The European Parliament and the Council should examine the impacts and subsidiarity and proportionality dimensions of their substantial amendments.
• As requested repeatedly by national Parliaments, the European Parliament and the Council should agree to discount the C hr ist mas/Ne w Yea r period from the 8-weeks allotted to national Parliaments to submit their reasoned opinions.
• The European Parliament and the Council should followup on the recommendations of the Ombudsman and recent case law in order to improve the transparency of their proceedings and consider involving local and regional authorities during the legislative procedure.
• The European Parliament and the Council should step up efforts with the Commission to create a joint interinstitutional database to improve the traceability of the legislative procedure.
• National authorities should examine how to involve local and regional authorities more effectively during the legislative procedure.
Following the upcoming European elections and the appointment of the next Commission, the European Parliament, Council and the Commission will exchange views and conclude on policy objectives and priorities35. The Commission looks forward to discussing the modalities for this exchange of views in due course as part of the three institutions’ implementation of the Interinstitutional Agreement on Better Law-Making.
https://www.eu2018.at/calendar-events/political-events/BKA-2018-11-16-Subsidiarity-Conf..html.
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