Working with the Commission's REFIT programme.

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The Juncker Commission published an extensive Better Regulation package in May 2015. The general political message of the Commission was that it continues on the path developed under the Barroso Commission and that it wants to further improve the quality of European legislation.

The Better Regulation package covers the activities of the Commission (1) as the initiator of policy discussions through Green Papers, White Papers and Policy Communications; (2) its role as the main EU institution that has the right to propose legislative proposals (the Council also has some powers to propose legislation in the policy area Common Foreign and Security Policy - CFSP); and (3) the Commission’s extensive responsibilities with regards to preparing Delegated and Implementing Acts. The Better Regulation package does not cover the activities of the Council or the European Parliament. A common agreement between the three EU institutions is currently discussed based on a Commission proposal for an InterInstitutional Agreement for Better Regulation.

The central theme that runs through the Commission’s Better Regulation package is that the Commission will invest heavily in policy analysis and that it wants to significantly expand consultation of interested stakeholders. The Commission distinguishes between two different types of policy analysis: (1) Impact Assessment, the process conducted to prepare proposals for policies and legislation; and (2) Evaluation, the analysis that aims to uncover the actual effects EU policies and legislation after they have been fully implemented and active for several years.

Impact Assessment

When the Commission prepares for policy discussions; develops a legislative proposal; or works on a Delegated or Implementing Act, the emphasis lies on Impact Assessment (IA). This topic is covered extensively in my book on the IA process and the possibilities that stakeholders have to work with it (Influencing the Preparation of EU Legislation: A Practical Guide to Working with Impact Assessments, John Harper Publishing, London, 2013). Highly summarised, IA is about analysing the problems that should be tackled; explaining why the EU is the right level to deal with the issue; assessing the right type of policy/legislative intervention; predicting the effects that such an intervention would bring about; consulting with stakeholders; and matching evidence with the political feasibility for EU action.

Evaluation

For policies and legislation that have already been implemented and that have been in place for at least a few years, the Commission used the Better Regulation package to further strengthen its approach to Policy and Legislative Evaluation. Such evaluation looks at whether the intended aims of policies and legislation have actually been achieved – and if not, why not; whether the effectiveness and/or efficiency can be improved and how. They also assess whether an intervention should be kept in place (or should be removed) and whether the EU is still the right level for the intervention (e.g. whether the responsibility for it could be shifted to Member States).

REFIT

The Commission runs a rolling programme for Evaluation. This means that it will, in due time, evaluate the entire EU Acquis. This process will naturally take some time given the number of EU Laws. To foster the evaluation and improvement of EU rules that matter most to EU Member States and stakeholders in general, the Commission further expanded its Regulatory Fitness and Performance Programme, better known as REFIT. 

The overall aim of REFIT, as expressed in political terms, is to make EU law simpler, to reduce costs that stem from regulation and to keep EU rules fit for the purpose that they were designed for. Within the decision-making process for policies and legislation in the EU, the practical role of REFIT is to prepare the basis for Commission proposals that would improve the EU’s regulatory framework. Only once these proposals would be adopted and implemented, would EU rules be easier to enforce and comply with.

The specific importance of REFIT lies in the political commitment to improve the efficiency, effectiveness and general performance of EU law. The fundamental aim of the programme is to ensure that – over the long run – European rules foster innovation, economic growth, employment and competitiveness.

Topics that become part of REFIT are usually referred to as REFIT-items. There are four main activities that are developed under the programme.

The first are referred to as Evaluations and cover a limited number of pieces of legislation (regularly just one).

The second type of activity is called Fitness Check. Such checks are evaluations of a larger number of EU Laws and constitute a broader analysis into the actual effects and interdependencies between different EU legal acts.

A third activity is to repeal laws that have become redundant.

Finally, the fourth type of activity is a so-called Cumulative Costs Assessment. Such an assessment aims to uncover the overall costs stemming from EU legislation for specific economic sectors.

Reasons for REFIT

The Commission’s aim is to make EU legislation fit for purpose. This opens the door to many reasons why EU law should be changed and updated.

The Commission has singled out two main goals that it aims to achieve through Better Regulation: (1) reducing overall costs of legislation for companies, individuals and administrations; and (2) fostering the competitiveness of the European economy in general (which should, amongst others, lead to more innovation, jobs and economic growth).

The Commission’s two specific preferences under REFIT are not limiting the ideas that could be inserted into the programme as such. It is certainly true that the Commission wants to reduce bureaucracy and costs stemming from EU legislation. Such activities can often be achieved without affecting the goal of legislation as such. There are also examples of reducing burdens while strengthening enforcement practices and improving overall compliance with legislation.

Competitiveness is a concept that can mean less, more or different type of legislation. When EU companies face global competition, they could benefit from less costly rules. They could, however, in the long term also be better off with stricter environmental targets which triggers them to innovate and outperform their competitors from outside the EU.

The Commission’s own choice to use the phrase ‘fit for purpose’ opens the possibilities for a wide range of improvements that can be analysed under REFIT. Since the Commission will most often run an Evaluation or Fitness Check, it will look into many more aspects than costs and competitiveness.

Start of decision-making

Topics that are taken up into the REFIT programme will be subject to detailed analysis. The outcome of the analysis will decide whether the Commission will develop a specific legislative proposal to change the existing legislation. This means in practice that an Evaluation, Fitness Check or Cumulative Cost Assessment under REFIT will most often be followed up by a decision to develop an Impact Assessment and eventually draft a legislative proposal.

The fundamental aim of the REFIT programme distinguishes a REFIT item from any other evaluation that the Commission might conduct. When an Evaluation is part of REFIT, the findings of the Evaluation are very likely to be subject to deeper scrutiny by the Council and the EP. REFIT heightens the chances that the Commission will present an actual legislative proposal later on. After all, REFIT has to ensure that EU rules keep in line with political, societal, environmental and economic developments. The programme is the result of the political commitment on EU level to tackle inconsistencies, redundancies and other shortcomings of legislation that might have developed in EU laws over the past decades.

Length of the process

Policy analysis takes time. An Evaluation, Fitness Check or Cumulative Cost Assessment will easily take a year or two to complete. The more complex a topic is, the more time the Commission will need to reserve for analysing all the relevant aspects.

The Commission regards REFIT as a very important step towards developing legislative proposals. The result of an analysis under REFIT is therefore likely to be followed by a discussion by the EP and Council. The Commission will regularly develop an Impact Assessment for a legislative proposal that follows from the REFIT programme.

Several years will pass between the moment when a topic is officially a part of REFIT and the moment that an actual proposal to change EU legislation is presented. For example, an Evaluation could take 1,5 years; the discussion on the outcomes another half year; and the preparation of a legislative proposal with an Impact Assessment another year. In this example, the time between the start of the REFIT analysis and the proposal being presented is three years.

Consultation under REFIT

The Commission invests heavily in consultation for its REFIT activities. It seeks to gain input from EU Member States and stakeholders on the topics that should be part of REFIT; on the outcomes any analysis; and the potential next steps with regards to changing EU legislation and policies. Two platforms have been set up to ensure that this happens in a structured manner. The first platform consists of representatives from EU Member States. The second is made up of stakeholders in a wide sense: business representations, labour unions, NGOs, etc.

Next to these two institutionalised consultation platforms, the Commission seeks the input from stakeholders when it runs an Evaluation, Fitness Check or Cumulative Cost Assessment, especially under REFIT. There are four main moments during which stakeholders can make their voices heard and bring across their concerns, ideas and suggestions.

The first is the Roadmap that will be published for REFIT items. Such a Roadmap provides a general overview of what the Commission will analyse and what kind of analysis it aims to conduct.

The second moment is the public consultation that is held for most REFIT items. This is a consultation that the Commission publishes on its consultation platform ‘Your Voice in Europe’.

The third consultation opportunity lies in direct contact with the Commission while it is conducting the analysis. This can be in the form of conferences, presentations, position papers, meetings with Commission officials and more.

The fourth moment opens up when the Commission publishes the final outcome of an Evaluation, Fitness Check or Cumulative Cost Assessment. The analysis will probably be accompanied with suggestions as to why and where EU legislation can be changed and improved. The publication of a report under REFIT is the moment where stakeholders gain insight into the potential legislative activities that the Commission will develop in the near future.

An Impact Assessment that follows after an extensive analysis under REFIT can be completed within one year. For such an IA, the official public consultation through ‘Your Voice in Europe’ might be skipped. Consultation can be limited to specific stakeholder groups only. This means that stakeholders that have an interest in a policy field that falls under REFIT should use the possibilities to engage with the Commission as soon as they find out that a REFIT item matters to them.

REFIT workload

The work related to REFIT can be split into two main parts. The first is actively participating in one of the official stakeholder platform. The second part is working with REFIT as an interested stakeholder that is not directly part of one of these two platforms.

The members of the two REFIT stakeholder platforms can expect an impressive workload lying ahead of them. The number of reports that the Commission will present over the course of the next few years will be both numerous and extensive. Sources close to the College, especially President Juncker and First Vice-President Timmermans, have indicated that they would like to see a large number of legislative proposals rolling out of the REFIT programme.

My advice to members of the REFIT stakeholder platforms is to ensure that they can rely on sufficient backup for the work ahead. EU Member States do have the resources to put together a team of specialists (around eight would be a good start) that work with REFIT in a fulltime capacity. Individual stakeholders might not be able to dedicate so many resources to a member of a REFIT platform. They should consider the possibilities to establish a network of organisations that work closely together in order to share the workload and be able to get the most out of REFIT.

There are two main reasons why I advice to invest heavily into working with the REFIT programme. The possibilities of REFIT are vast and those provide the real reasons to invest in REFIT.

The first reason is that any type of policy analysis that the Commission conducts under REFIT will cover very different aspects. These can range from competitiveness to administrative burdens and social impacts to fundamental rights. One person will not be able to understand all these different aspects in detail. REFIT will place a considerable coordination demand on the members of the stakeholder platforms and organisations that decide to be involved in REFIT.

The second reason is a very straightforward one. The Commission regards REFIT as the potential source of a considerable amount of legislative proposals that will be presented in 2017 and the years after that. Working actively with REFIT is equal to co-shaping the legislative agenda of the European Union in the near future.

Stakeholders that are not directly involved in one of the stakeholder platforms have multiple ways of getting involved.

First of all, they can be reactive and see whether topics that are relevant for them become part of REFIT. Once this has become clear, they can directly participate in an Evaluation, Fitness Check or Cumulative Cost Assessment.

Secondly, they can be proactive and aim at integrating topics into the REFIT programme; suggest legislation that should be evaluated; provide ideas for Fitness Checks; and so on. This means directly interacting with the Commission and the members of the stakeholder platforms.

What is needed to work with REFIT?

Anyone that works with REFIT, either through one of the two stakeholder platforms or as an organisation that wants to encourage certain topics to be analysed, should look into the methods for conducting Evaluation and Impact Assessment. These two methods provide the basis of the Commission’s work under REFIT. Linking any issues with the logic behind and the scope of these methodologies used by the Commission will increase the chances that an issue is taken up and made part of REFIT.

Stakeholders also should have a clear reason why a specific topic should be part of REFIT. This implies that stakeholders need to have a clear picture of the regulatory landscape, understand where EU rules can be improved and how these improvements can be placed in the wider European political context.

Since the time between the selection of a REFIT item and an actual legislative proposal can be two or three years, stakeholders should reserve the necessary human and financial resources to deal professionally with the process. This means ensuring that there is sufficient capacity to engage with the Commission, to provide input where necessary and to participate in the consultation possibilities that the Commission provides. This engagement under REFIT will prove to be very useful in the subsequent stages for the Impact Assessment and the political decision-making for legislative proposals by the EP and Council. 

REFIT as DEREGULATION?

REFIT is, in my view, not equal to deregulation since its aim is not to slash EU rules regardless of the reason why they have been put in place. It is a programme that aims at modernising EU laws so that they are more effective and efficient. Societies change, technology advances, economies develop. It is only natural that a regulatory framework follows these changes.

REFIT is also characterised by multiple checks and balances. The composition of the stakeholder platforms means that there is no single focus under REFIT, but that the programme balances different interests. The platform comprising of EU Member States is, in effect, a type of mini-Council. Interests of different countries will be reflected in it.

The platform comprising of stakeholders represents interests that can be widely diverging, from business to labour, from social and consumer to environmental. Depending on the topic, there will be coalitions between some of these interests and there will surely also be disagreement between them. Stakeholders in the REFIT platforms will be able to gather momentum early on when they are vehemently opposed to specific ideas. This makes working with REFIT all the more worthwhile and more demanding at the same time. The REFIT platforms can provide an important impetus for any legislative changes. They are, however, also important focus groups as to what kind of changes to EU legislation would not be welcomed at all.

REFIT, as stated before, is the start of future legislative action. The Commission has the right to propose changes to EU laws, but it cannot adopt these. The Council and the EP have the final say on whether they approve any proposed changes or not. This is the strongest safeguard for anyone concerned about the motives behind REFIT. Legislative proposals that result from REFIT will have to be adopted by the co-legislators before they can become actual law. This provides the guarantee that the REFIT programme will result in legislative changes that carry wide political support in the European Parliament and the Council.