Letter of the President of the Court of Auditors - Hoofdinhoud

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COUNCIL OF THE EUROPEAN UNION

Brussels, 29 April 2010

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MI 121 COMPET 123 CMPT 15 INST 136

NOTE

from: to:

Presidency Delegations

Subject:              Letter of the President of the Court of Auditors

Delegations will find, in the Annex, a letter from the Court of Auditors to the Presidency.

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ANNEX

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EBPOITEHCKA CMETHA TIAJIATA TRIBUNAL DE CUENTAS EUROPEO

EVROPSKÝ ÜČETNf DVÜR

DEN EUROP^ISKE REVISIONSRET

EUROPÄISCHER RECHNUNGSHOF

EUROOPA KONTROLLIKODA

EYPMIAÏKO EAErKTIKO SYNEAPIO

EUROPEAN COURT OF AUDITORS

COUR DES COMPTES EUROPÉENNE

CÜIRT INIÜCHÓIRf NA HEORPA

CORTE DEI CONTI EUROPEA

EIROPAS REVlZIJAS PALĀTA

EUROPOS AUDITO RÜMAI

EURÓPAI SZÁMVEVÖSZÉK

IL-QORTI EWROPEA TAL-AWDITURI

EUROPESE REKENKAMER

EUROPEJSKI TRYBUNAŁ OBRACHUNKOWY

TRIBUNAL DE CONTAS EUROPEU

CURTEA DE CONTURI EUROPEANĂ

EURÓPSKY DVOR AUDÍTOROV

EVROPSKO RAČUNSKO SODIŠČE

EUROOPAN TILINTARKASTUSTUOMIOISTUIN

EUROPEISKA REVISIONSRÄTTEN

Preliminary observations (pursuant to Article 287(4), second subparagraph, TFEU)

mpact Assessments in the EU institutions: do they support decision making?

These preliminary observations were adopted by the Court of Auditors in Luxembourg at its meeting of 11 February 2010.

12, rue Alcide De Gasped                                                     Telephone (+352) 43 98 - 1

L - 1615 Luxembourg Telefax (+352) 43 93 42 Internet: HTTP://ECA.EUROPA.EU

E-mail: EURAUD@ECA.EUROPA.EU

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TABLE OF CONTENTS

Paragraph Glossary of terms and abbreviations

Executive Summary ...................................................................................................................... I - VI

Introduction .................................................................................................................................. 1 - 12

Audit scope and approach .......................................................................................................... 13 - 16

Observations ............................................................................................................................... 17 - 83

Use of impact assessments for decision-making

at the Commission, the European Parliament and the Council ......................................... 17 - 41

Impact assessment helps the Commission

to formulate its proposals .................................................................................................. 19 - 27

The Commission’s impact assessment reports are perceived

by users at the European Parliament and Council as relevant information in the

legislative decision-making process ................................................................................. 28 - 33

Amendments to the initial Commission proposal are not

subject to additional assessments of potential impacts ..................................................... 34 - 41

The Commission’s procedures for the preparation of impact

assessments ....................................................................................................................... 42 - 56

Lack of transparency in the selection procedure

and targeting of impact assessment work ......................................................................... 43 - 46

Consultation is widely used as input for impact assessments,

but interim results of impact assessment work are not

put out for information and comment ............................................................................... 47 - 50

Recent improvements in the Commission's quality review

of its impact assessment reports ........................................................................................ 51 - 56

Content and presentation of the Commission's

impact assessment reports ................................................................................................. 57 - 83

Problems to be addressed and policy objectives appropriately described, but the

intervention logic is not made explicit .............................................................................. 58 - 61

Impact assessment reports do not provide a sound basis

for the comparison of alternative policy options .............................................................. 62 - 72

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Information on implementation aspects, enforcement costs

and administrative burden is weak .................................................................................... 73 - 83

Conclusions and Recommendations ........................................................................................... 84 - 89

Annex I - Comparison of specific elements of the Commission's system with IA systems elsewhere

Annex II - Audit approach and evidence collection methods

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Glossary of terms and Abbreviations

Administrative burden: The administrative and information costs that businesses incur in order to comply with legal obligations.

Annual Policy Strategy (APS): The Commission's Annual Policy Strategy lays down, early in year n-1, political priorities and key initiatives for year n. At the same time, it allocates the corresponding financial and human resources to these priority initiatives. It serves as a basis for a political exchange of views on the Commission's programme with the European Parliament and the Council.

Co-decision: Under the co-decision procedure, the Council shares legislative power with the European Parliament. Both institutions can, however, only act on a proposal by the Commission (which has the sole right of initiative).

Comitology: Committee system which oversees the delegated acts implemented by the European Commission. The committees are composed of representatives of the Member States and have the mandate to regulate certain delegated aspects of the secondary legislation adopted by the Council and, where co-decision applies, the European Parliament. The Commission chairs these meetings and provides the secretariat.

Commission’s Legislative and Work Programme (CLWP): In this document, published in November of each year, the Commission presents its planned legislative and other initiatives for the following year. The CLWP does not contain all initiatives to be brought forward in a given year, but identifies policy initiatives of major importance. It thereby operationalises the political priorities and initiatives specified in the APS.

Council Working Party (WP): Working groups specialised in a given policy field at the Council of Ministers consisting of delegations of all Member States. They prepare the legal acts to be adopted by the relevant Council of Ministers.

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Directors and Experts for Better Regulation (DEBR): Expert group consisting of officials in charge of Better Regulation in the EU Member States and other European countries. DEBR meets twice per year and is chaired by the delegation of the incoming Council presidency. The mandate of this group is to exchange ideas and to further develop existing initiatives by the EU and its Member States to reduce bureaucracy and improve legislation.

High Level Group of Independent Stakeholders on Administrative Burdens (“Stoiber Group”): This group advises the Commission with regard to the Action Programme for Reducing Administrative Burden. Dr Edmund Stoiber, former Prime Minister of Bavaria, is chairman of this group. The other members represent important stakeholder organisations. Its mandate expires in 2010.

IA: Impact Assessment

Impact Assessment Board (IAB): A body attached to the Commission's Secretariat-General that assesses the quality of each impact assessment report and publishes its opinion thereon. The Board consists of four directors from different DGs and the deputy Secretary-General of the Commission.

Intervention logic: Intervention logic is the conceptual link between an intervention’s inputs and the production of its outputs and, subsequently, its impact in terms of results and outcomes.

Mandelkern Group: High-level advisory group that consisted of regulatory experts from the Member States and the European Commission. This group was established by the Public Administration Ministers of the Member States in November 2000 and chaired by the French Dieudonné Mandelkern, a former Member of the Conseil d'Etat. Among other proposals, the group recommended in 2001 that the Commission should develop a tool for assessing the social, economic and environmental impacts of proposed legislation.

MEP: Member of European Parliament

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Rapporteur: term used in the European Parliament to describe the MEP(s) who is (are) in charge of a given proposal or report. MEPs in charge of a proposal belonging to political groups different from the group of the official European Parliament rapporteur in charge of the same proposal are called shadow-rapporteurs.

Roadmap: A short document that gives an initial description of a planned Commission initiative, including an indication of the main areas to be assessed in the IA and the planning of IA work. These roadmaps have two functions: they provide an estimated timetable for the proposal and set out how the impact assessment will be taken forward. Roadmaps are published when the Commission Legislative and Work Programme (CLWP) is adopted.

Standard Cost Model (SCM): Method to assess costs incurred to meet information obligations created by legislation. Calculates cost on the basis of the average unit cost of the required administrative activity multiplied by the total number of activities performed per year.

Transposition: In European Union law, a process by which the Member States give force to an EU Directive in national law by adopting appropriate implementing legislation.

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Executive Summary

I.  Impact Assessment is one of the cornerstones of the Commission’s Better Regulation policy for the improvement and simplification of new and existing legislation. Its purpose is to contribute to the decision-making processes by systematically collecting and analysing information on planned interventions and estimating their likely impact. This should provide the bodies involved in legislative decision-making with a basis on which to decide on the most appropriate way to address the problem identified.

II. The audit analysed whether impact assessments supported decision-making in the EU institutions. In particular, it examined the extent to which

• - 

  impact assessments were prepared by the Commission when formulating its

proposals and the European Parliament and the Council consulted them during the legislative process;

• - 

  the Commission’s procedures for impact assessment appropriately supported the

Commission’s development of its initiatives; and

• - 

  the content of the Commission's impact assessment reports was appropriate and the

presentation of findings was conducive to being taken into account for decision-making.

III.  The period under examination was 2003-2008 and the audit involved inter alia an international comparison of impact assessment systems, an analysis of a sample of Commission impact assessments, interviews and surveys with people involved in performing, reviewing and using the Commission's impact assessments, both within and outside the Commission. The findings were examined against the relevant inter-institutional agreements, the Commission’s guidelines and a set of good practices observed in policy documents and established by the OECD. Throughout the audit, expert groups provided advice and supported the audit work.

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IV.  Better Regulation is a responsibility of all EU institutions involved in the legislative process. On balance, particularly in recent years, the audit has shown that impact assessment has been effective in supporting decision-making within the EU institutions. In particular, it was found that the Commission had put in place a comprehensive impact assessment system since 2002. Impact assessment has become an integral element of the Commission's policy development and has been used by the Commission to design its initiatives better. The Commission's impact assessments are systematically transmitted to the European Parliament and Council to support legislative decision-making and users in both institutions find them helpful when considering the Commission’s proposals. However, the Commission's impact assessments were not updated as the legislative procedure progressed and the European Parliament and Council rarely performed impact assessments on their own amendments.

V.  In addition, the audit identified a number of weaknesses related to the impact assessment procedures followed by the Commission and the content and presentation of impact assessment reports:

(i) The Commission did not publish a comprehensive overview of the legislative

initiatives selected to undergo an impact assessment or justify why certain initiatives rather than others were targeted. Results of the impact assessment work were only made public at the end of the Commission’s policy development process, together with the initiative itself. Consultation with stakeholders was used largely for initial input and not to obtain the views of interested parties before the Commission’s proposal is finalised. Recent improvements were noted regarding the Commission's internal quality control of impact assessment work, but the mandate of the Impact Assessment Board (IAB) was found to be too weak in some respects.

(ii) The Commission's impact assessment reports generally provided a sound

description of the problem at stake and specified the objectives pursued. These and other mandatory sections of impact assessment reports were found to comply with the Commission's guidelines. However, IA reports do not easily reveal their key messages to the reader and comparing the impacts of the various policy options presented in an IA report is often impossible. Also, due to a lack of appropriate data, the quantification and monetisation of the impacts of the different options assessed were weak and the analysis often did not provide an adequate basis for a

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comparison of policy options. In addition, comparing different options was made difficult because of the way in which they were presented in the impact assessment reports. Finally, implementation and enforcement arrangements and the potential administrative burden of proposed legislation were found to be insufficiently analysed.

VI. The Court considers that the Commission should give due consideration to the principles of clarity of objectives, simplification, realism, transparency and accountability when designing new interventions and revising existing ones.The European Parliament, the Council and the Commission may wish to consider the findings and recommendations set out in this report when revising their Inter-institutional agreements on "Better law-making" and a "Common approach to impact assessment".

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Introduction

'Better Regulation' in the EU context

• 1. 

  The Commission’s 'Better Regulation' policy aims at designing new legislation better and simplifying existing legislation¹. The 'Better Regulation' initiative was a response to the need expressed at the Gothenburg and the Laeken European Councils in 2001 to:
• - 

  simplify and improve the European Union’s regulatory environment; and
• - 

  consider the effects of proposals in their economic, social and environmental dimensions.
• 2. 

  Since then the European Commission has introduced several measures, including impact assessment (IA), to improve the way it designs interventions (see Box 1).

¹       European Commission, White Paper on European Governance, COM(2001) 428 final.

²       Commission Communication, General principles and minimum standards for consultation of interested parties by the Commission, COM(2002) 704 (hereinafter ‘minimum standards’).

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Impact assessment as a tool for Better Regulation Coverage of the Commission's impact assessment system

• 3. 

  IAs are carried out for legislative proposals and other Commission initiatives. All major legislative, budgetary and policy-defining initiatives with significant impact must undergo an IA. Major policy initiatives are defined as all those presented in the Annual Policy Strategy (APS) or, later, in the Commission's Legislative Work Programme (CLWP), with some clearly defined exceptions. In addition, other significant initiatives can be covered on a case by case basis.³
• 4. 

  The Commission’s IA system also applies to existing EU legislation when there is a revision or an update of the 'acquis communautaire', for example under the "Simplification Rolling Programme". Finally, in 2009, the scope of the Commission’s IA system was extended to implementing rules (or ‘comitology’ decisions). These implementing measures are a significant source of EU legislation, as around 250 comitology committees adopt around 2 600 such measures every year. Approximately 1 000 of them are based on legislation adopted under the co-decision procedure⁴.

³       European Commission, IA Guidelines, SEC(2005) 791, p. 6.

⁴       See European Commission, Report from the Commission on the working of Committees during 2006,COM(2007) 842; European Parliament, Working Party on Parliamentary Reform, Second Interim Report on Legislative Activities and Inter-Institutional Relations, 15 May 2008, PE 406.309/CPG/GT (Internal European Parliament document), Part B, Chapter 4, p. 41).

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Commission's impact assessment system coverage is wider than that of comparable national systems

• 5. 

  Fully operational IA systems are in place in only a few Member States⁵. Moreover, the Commission’s IA system has a different and, to some extent, wider scope than comparable systems in OECD countries (see Annex I):
• - 

  Firstly, other IA systems (such as in the USA) address only implementing rules (i.e.

regulatory measures which further specify legislation previously adopted by Congress; in the EU context, such measures are comparable to 'comitology decisions').

• - 

  Secondly, some European countries (such as the Netherlands and Germany) focus

their IAs of forthcoming regulation on the assessment of administrative burden. In the case of the Commission, this is only one of several aspects analysed within an IA.

Content of the Commission's impact assessment reports

• 6. 

  The reports resulting from these IAs are expected to identify and assess the problem at stake and the objectives pursued, develop the main options for achieving the policy objective, and analyse their likely economic, environmental and social impacts. They should also analyse potential administrative burdens resulting from the proposed options, assess possible implementation and enforcement problems and specify appropriate monitoring and evaluation arrangements for the intervention or programme proposed⁶.

⁵       Forthcoming: OECD, Indicators of Regulatory Management Systems, December 2009; Evaluating Integrated IAs (EVIA), Final report, March 2008.

⁶       European Commission, IA Guidelines, SEC(2005) 791.

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Organisational responsibility, procedural aspects and cost of the Commission's impact assessment system

• 7. 

  Within the Commission, each Directorate-General is responsible for preparing its IAs in line with the Commission's guidelines. Following the first version in 2002, this guidance material has been updated on three occasions, with the latest update taking place in January 2009⁷. IAs are carried out by the staff responsible for the policy initiative, supported by dedicated ‘IA support units’. Since 2007, an Impact Assessment Board (IAB) has provided centralised quality support and control for all IAs within the Commission⁸.
• 8. 

  A preliminary draft IA report must accompany the proposal when going through interdepartmental consultation. A final draft IA report will accompany the legislative proposal when it is sent to the College of Commissioners for its final adoption. The final IA report is also sent to the European Parliament and the Council along with the definite proposal and is made available on the 'Europa' website⁹.

Inter-institutional agreements between the European Parliament, the Council and the Commission

• 9. 

  In the Inter-institutional Agreement on better law-making in 2003, the European Parliament, the Council and the Commission agreed “... on the positive contribution of IAs in improving the quality of Community legislation, with particular regard to the scope and substance thereof."¹⁰. In 2005, a further Inter-institutional Agreement was signed between the European Parliament (EP), the Council and the Commission on a "Common approach to IA"¹¹.

European Commission, "Guidelines on IA", SEC(2005) 791, 15.5.2005, as amended on 15.3.2006; European Commission, " IA Guidelines ", SEC(2009) 92, 15.01.2009. Information note from the President to the Commission, Enhancing quality support and control for Commission IAs, The IA Board, 14 November 2006. http://ec.europa.eu/governance/impact/ia_carried_out/ia_carried_out_en.htm Inter-Institutional Agreement on better law-making (OJ C 321, 31.12.2009), Article 28. Inter-Institutional Agreement on a common approach to IA (14901/05 JUR, adopted on 29.11.2005).

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• 10. 

  In 2005 the European Parliament, the Council and the Commission had agreed that the Inter-institutional agreement was to be reconsidered by the end of 2007¹². This review is still outstanding. As a preparatory step, in 2008, the European Parliament, the Council and the Commission produced 'stock-taking reports' which set out their views on the "Common Approach to IA" since 2005¹³.
• 11. 

  On several occasions, the European Parliament has adopted resolutions on Better Regulation and the use of IA, which, in general, viewed IA as helpful in informing EU decision-making¹⁴. Similarly, the Council committed itself, in its recent conclusions on Better Regulation, towards continuing to use the Commission’s IA reports and the accompanying IAB opinions throughout the negotiating process¹⁵.

14

¹²      Inter-institutional common approach to IA (14901/05 JUR, adopted at 29.11.2005), point 19.

¹³      EP: The Conference of Committee Chairs, IA: The European Parliament’s Experience, A Stock-taking Report of The Common Approach to IA. Council: Note from the Director of the General Secretariat Directorate-general, Directorate I, “Review of the Inter-institutional Common Approach to IA – State of play of the handling of IA in the Council, Brussels, 3.11.2008. Commission: Review of the Inter-Institutional Common Approach to IA (IA) -Implementation of the Common Approach by the Commission. A working document of the Secretariat General SG.C.2 D(2008) 9524.

Resolution of 24 March 2004 on the assessment of the impact of Community legislation and the consultation procedures (2003/2079(INI)); Resolution of 10 July 2005 on Minimising administrative costs imposed by legislation (2005/2140(INI)); Resolution of 16 May 2006 on the implementation, consequences and impact of the internal market legislation in force (2004/2224(INI)); Resolution of 16 May 2006 on Better law-making 2004: application of the principle of subsidiarity - 12th annual report (2005/2055(INI)); Resolution of 4 September 2007 on Better law-making 2005: application of the principle of subsidiarity and proportionality - 13th annual report (2006/2279(INI)); Resolution of 4 September 2007 on the Single Market Review (2007/2024(INI)); Resolution of 4 September 2007 on Better Regulation in the European Union (2007/2095(INI)); Resolution of 21 October 2008 on Better law-making 2006: application of the principle of subsidiarity and proportionality - 14th annual report (2008/2045(INI)); European Parliament, Committee on Legal Affairs, "Report on Better Regulation in the EU" (2007/2095(INI)); A6-0273/2007 final, 2.7.2007: see explanatory statement and points 5 to 15, 21, 26, 30, 42 to 43.

Council of the European Union, Competitiveness Council conclusions on 'Better Regulation', 17076/09, 4.12.2009, point 6.

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• 12. 

  Figure 1 provides an overview of the role of impact assessment in developing and deciding on the Commission’s initiatives and legislative proposals.

Figure 1 -The role of impact assessment in developing and deciding on the Commission’s initiatives and legislative proposals

IA provides support for decision-making ...

... in European Parliament and Council

... in the Commission

Procedures for IA in the Commission

Content and presentation of Commission's IA reports

Legislative decision-making: Appreciation of IA reports, discussion of IA reports, impacts of amendments to Commission proposals are assessed

IA report

Commission ¹—I legislative proposal / initiative

Development of Commission proposal: Coverage of most relevant initiatives, IA part of policy development, IA as support for decision-making

Selection of initiatives to undergo IA

Consultation of interested parties for IA

Decription of policy problem, objectives and intervention logic

Quality control of IA

Comparison of policy options through assessment of impacts

Implementation, enforcement, monitoring and evaluation of initiative

Audit scope and approach

• 13. 

  The audit assessed whether IAs supported decision-making in the EU institutions. In

particular, it examined the extent to which:

• - 

  IAs were prepared by the Commission when formulating its proposals and the

European Parliament and the Council consulted them during the legislative process;

• - 

  the Commission’s procedures for IA appropriately supported the Commission’s

development of its initiatives; and

• - 

  the content of the Commission's IA reports was appropriate and the presentation of

findings was conducive to being taken into account for decision-making.

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• 14. 

  The period under review was 2003 to 2008. The audit involved inter alia:
• - 

  a comparison of specific elements of the Commission's system with IA systems

elsewhere;

• - 

  an analysis of IA production statistics and of a sample of IA reports (scorecard

analysis related to five DGs and corresponding to around a quarter of all IAs produced during the period audited); and

• - 

  enquiries and surveys with people involved in performing, reviewing and using the

Commission's IAs both within and outside the Commission.

Annex II contains a more detailed description of the methodology used for the audit.

• 15. 

  The findings were examined against the relevant inter-institutional agreements¹⁶, the Commission’s guidelines¹⁷ and a set of good practices observed in policy documents¹⁸ and established by the OECD¹⁹. Expert groups composed of practitioners in the field of IA and Better Regulation were invited by the Court to provide support and advice throughout the audit.
• 16. 

  The analysis of the quality of individual pieces of legislation or the process of law-making as such were not within the scope of the audit.

16

17

Inter-Institutional agreement on better law-making; Inter-Institutional Common Approach to IA (IA), 2005.

European Commission, Communication on 'IA', COM(2002) 276 final; European Commission, Communication on 'Towards a reinforced culture of consultation and dialogue -General principles and minimum standards for consultation of interested parties by the Commission', COM(2002) 704 final; Information note from the President to the Commission, Enhancing quality support and control for Commission IAs, The IA Board, 14 November 2006; European Commission, 2005/2006 IA Guidelines, SEC(2005) 791. Mandelkern Group on Better Regulation, Final Report, 13 November 2001. OECD, Regulatory Impact Analysis: Best Practice in OECD Countries, 1997; OECD, APEC-OECD Integrated Checklist on Regulatory Reform: Final Draft, 2005; OECD, Indicators of Regulatory Management Systems, 2009 (forthcoming).

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Observations

Use of impact assessments for decision-making at the Commission, the European Parliament and the Council

• 17. 

  IAs contribute to the decision-making processes by systematically collecting and analysing information on planned interventions and estimating their likely impact²⁰. The relevant inter-institutional agreements between the European Parliament, the Council and the Commission define that IAs should first of all help the Commission to develop its policy initiatives and legislative proposals. Subsequently, during the legislative procedure, IAs presented by the Commission and, where appropriate, those prepared by the European Parliament and the Council, should provide the information based on which the legislators can decide on the most appropriate way to address the problem identified.
• 18. 

  For this purpose, the audit examined
• - 

  the extent to which the Commission has carried out IAs for its legislative proposals and other initiatives and whether IAs were actively used in the Commission's policy development and its preparation of legislative proposals;
• - 

  whether the Commission's IAs were perceived by users at the European Parliament and the Council as contributing to the legislative decision-making process and whether IAs affected the way in which legislative proposals were discussed in the relevant committees and working parties;
• - 

  the extent to which the legislators carried out IAs of their own substantive amendments or requested the Commission to present updates of its IAs in the light of such amendments and whether national bodies provided additional information to inform legislative decision-making at the EU level.

²⁰ European Commission, "Communication from the Commission on IA", COM(2002) 276 final of 2.6.2002, paragraph 1.2.: IA is "... the process of [the] systematic analysis of the likely impacts of intervention by public authorities.

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Impact assessment helps the Commission to formulate its proposals

Significant increase in the number of impact assessments carried out since 2003

• 19. 

  During the period audited IAs had strong institutional backing²¹ and were increasingly used to provide input to the Commission's development of policy initiatives and legislative proposals. Since 2003, the number of IAs carried out annually has increased to 121 reports in 2008 (see Figure 2). This represented 37 % of all legislative proposals made in that year. Overall, 404 IA reports were published by the Commission during the period audited.

Figure 2 - Number of impact assessments performed each year

121 93

140 120 100

80 60 40 20

total of 404 IA reports

72

30

21

67

2003

2004

2005

2006

2007

2008

Source: European Commission.

Commission's objective of CLWP coverage attained…

21

José Manuel Barroso - President of the European Commission: Response to UK Presidency Programme, European Parliament - Plenary Session, Brussels, 23June 2005; Uniting in peace: the role of Law in the European Union, Jean Monnet lecture, EUI Florence, 31 March 2006; Qualité de la législation européenne : le temps des résultats Parlement Européen, Strasbourg, 4 avril 2006; Presentation of the European Commission's 2007 Work Programme, European Parliament, Strasbourg, 14 November 2006; Alive and kicking: the renewed Lisbon strategy is starting to pay off; Brussels, 5 March 2007; "We are all new Europeans now", Lithuanian Parliament (Seimas), Vilnius, 29 March 2007. 165 Günther Verheugen, 'Better Regulation' Conference of the Slovenian Presidency; Lubljana,17. April 2008.

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• 20. 

  The selection of initiatives to undergo an IA is a significant decision, in terms of political implications and resources needed. During the period audited the main condition for selection was the inclusion of the initiative in the CLWP, which contains the Commission’s major policy initiatives as set out in the Annual Policy Strategy (APS; see Box 2).

Box 2 – Set of conditions for selecting initiatives that are to undergo IA

In 2003, the first year of the implementation of the IA system, the Commission decided to select a certain number of proposals that should undergo IA. The Commission based its selection on the importance of the proposals selected in relation to the political priorities, the feasibility for its departments to perform the assessments in the short-term, and the need to maintain a balance between different types of proposal and the involvement of a broad range of departments. 2004 was the first year in which the IA procedure was fully integrated into the programming cycle and the use of IAs was extended to cover a set of proposals listed in the CLWP which were considered to have significant impacts²². Since the 2005, IAs have been required for all initiatives set out in the CLWP²³, with some types of initiatives being exempted²⁴.

21 From 2003-08, IAs were carried out for 69 % of all CLWP initiatives. Since 2005, in accordance with the criteria specified by the Commission at the time, IAs were undertaken for all relevant items on its CLWP, i.e. those initiatives that were considered to have significant impact.

22

23

24

See APS 2005; COM (2004) 25.2.2004. CLWP 2004, COM (2003) 645 final, Annex 2: these initiatives included major policy-defining, pre-legislative and legislative proposals. European Commission, "Guidelines on IA", SEC(2005) 791, 15.5.2005, as amended on 15.3.2006, Procedural rules (II.1).

'Green Papers', proposals for consultation with “social partners”, periodic Commission decisions and reports, proposals following international obligations and COM measures deriving from it’s power to oversee the correct implementation of EC law and executive decisions are exempted.

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... and increasing trend to also carry out impact assessments for initiatives outside the CLWP

• 22. 

  In line with its rules and based on a case-by-case assessment, the Commission has also produced IAs for initiatives not included in the CLWP²⁵. In 2008, such IAs accounted for a majority of IAs carried out in that year (see Figure 3).

Figure 3 - Breakdown of impact assessments between 2005 and 2008 – CLWP vs non-CLWP

non-CLWP CLWP

67

55 %

45

45 %

2 005               2 006                2 007                2 008

Source: ECA analysis of Commission data.

²⁵ These initiatives (which are to have potentially significant impacts, address novel or sensitive issues or affect stakeholders particularly and for which an IA should therefore be carried out) are determined on a basis of a screening by the Secretariat-General, with the support of the Impact Assessment Board (IAB).

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Conducting impact assessments is becoming standard practice in the Commission’s policy development

• 23. 

  IA is increasingly becoming part of the policy development culture at the Commission. Over the past few years the Commission has provided extensive training in IA methodology. The way in which IAs are to be produced is set out in Commission IA guidelines issued by the Secretariat-General that are applicable in all departments and services. Since 2002, this material has been updated on three occasions, with the latest update taking place in January 2009²⁶.
• 24. 

  Since 2007, an Impact Assessment Board (IAB) has supported by the Commission's Secretariat-General reviews the quality of the IAs carried out by the Directorates-General. In addition, the IA guidelines have recently specified that Directors-General must assume responsibility for the methodological soundness of the IA documents by signing the draft IA report submitted for the IAB quality check.²⁷ The guidelines also prescribe the use of IA Steering Groups which aim to ensure consistency between policy areas in the IA exercise.

Impact assessments primarily help to shape Commission proposals

• 25. 

  The audit found that IAs were not used by the Commission to decide whether to go ahead with a proposal.Throughout the period audited, three cases were found where the Commission had undertaken IA work and published an IA report, but did not subsequently pursue the initiative concerned (less than 1% of total IAs carried out)²⁸. The decision whether to launch an initiative is generally taken before an impact assessment report is finalised. The Commission rather uses IA to gather and analyse evidence that, during the policy development process, is used to improve its proposed initiative (see Box 3 for an example).

26

27 28

European Commission, "Guidelines on IA", SEC(2005)791, 15.5.2005, as amended on 15.3.2006; European Commission, " IA Guidelines ", SEC(2009) 92, 15.1.2009. European Commission, 2009 IA Guidelines, SEC(2009) 92. European Commission: Directive on the cross-border transfer of registered office, SEC(2007)1707; Proportionality between Capital and Control in Listed Companies, SEC(2007)1705; Proposals aiming to modernise and reinforce the organisational framework for inland waterway transport in Europe, SEC(2008) 23.

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Box 3 – Impact assessment helps to improve the proposed initiative: "Roaming I"

In the "Roaming I" case²⁹, the decision to legislate by means of a Regulation³⁰, (rather than through a Directive or not to legislate at all) was upheld, but the legislative proposal was adjusted throughout the IA process. In its second phase consultation, the Commission had proposed a regulatory approach called the 'Home Pricing Principle' as a possible means to address the problems in the roaming market. In the IA, which followed the public consultation process, the Commission took on board the view of the majority of respondents, and ultimately proposed an alternative approach (i.e. the European Home Market approach) which provided a better solution to the problems in the roaming market.

• 26. 

  The audit also showed that, in particular for recent years, IA is becoming broader in terms of the number of alternative options analysed and that resources are targeted to the assessment of initiatives according to their importance:
• - 

  Analysis of an increasingly wide range of policy alternatives: Commission staff in charge of drafting legislative proposals and the related IAs reported that the IA process required them to consider more alternatives then previously when preparing a policy initiative. It was found that, throughout the period audited, the number of alternative options presented in the IA reports increased. In particular, for IAs produced in 2007 and 2008, the Court’s analysis showed that the Commission increasingly analysed several feasible regulatory alternatives during its IAs.
• - 

  Prioritisation of resources on legislative proposals and CLWP initiatives: The Commission considers that more resources should be devoted to the analysis of the most significant initiatives than to the less significant initiatives. In the Commission guidelines this is called the principle of proportionate analysis³¹. Based on estimates provided by the Commission, it can be shown that more time is devoted to those IAs which are undertaken for legislative proposals (as compared to non-legislative initiatives) and which are included in the CLWP (as compared to those which are not) (see Figure 4). This indicates that the Commission focuses its resources in accordance to the pre-defined priorities.

²⁹      COM(2006) 382.

³⁰      Commissioner Reding speech before the European Regulators Group on 8 February 2006.

³¹      European Commission, 2009 IA Guidelines, SEC(2009) 92, Chapter 3, p. 12-16.

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Figure 4 - Average staff resources used for the production of impact assessment reports

Legislative Non-Legislative

CLWP item Non-CLWP item

24                        68

Average staff resources per IA in person-months

10

Source:         ECA analysis of Commission data (2009).

Note:             52 IA reports.

Impact assessments are actively used for decision making at the level of the College of Commissioners

• 27. 

  At the Commission, initiatives are designed and impact assessments are prepared within the Directorates-General under the authority of the Commissioner in charge of a given policy field. Subsequently, Commission proposals are adopted by the College of Commissioners and these decisions are generally prepared at weekly meetings of their Private Office staff. According to Commission Private Office staff who were interviewed, IA reports provide a valuable source of information about proposals put forward by Commissioners other then their own. and IAs (and the related IAB opinions) are regularly discussed at the weekly preparatory meetings.

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The Commission’s impact assessment reports are perceived by users at the European Parliament and Council as relevant information in the legislative decision-making process

Commission impact assessment reports are transmitted to the European Parliament and Council together with the policy initiative

• 28. 

  IA reports should be made available to the European Parliament and the Council "fully and freely" so that the legislators can obtain a comprehensive view of the evidence base provided in the IA report³². During the period audited, all IA reports accompanying legislative proposals were forwarded to both institutions.

The Commission’s impact assessments rarely discussed at meetings of European Parliament committees and Council working parties

• 29. 

  In the European Parliament and Council, it is recommended practice to discuss the Commission's IA whenever a proposal is submitted³³. However, current practice observed in both the Parliament and Council falls significantly short of this recommended approach:
• - 

  At the European Parliament, the Commission's IA reports are not systematically presented and discussed at committee meetings. The audit found that the Commission was only invited to present its IAs in exceptional cases (see Box 4 for a "good practice" example). An analysis of over 12 000 public European Parliament Committee documents of the 2004-09 parliamentary term revealed that only one document made explicit reference to a Commission IA³⁴.

³² Inter-Institutional agreement on better law-making: in particular points 25 and 29; Inter-institutional agreement on a common approach to IA (14901/05 JUR, adopted at 29.11.2005): in particular points 5, 6 and 13.

EP Conference of Committee Chairmen, IA Handbook, 17 July 2008; Council of the European Union, General Secretariat, Handling IAs in Council: Indicative Guidance For Working Party Chairs, Luxembourg, 2007.

European Parliament, Committee on Industry, Research and Energy, ITRE(2008)0123_1; 23 January 2008, Meeting 17:00 - 18:30; Letter of Commissioner Piebalgs on the Commission's IA, Continuation of the exchange of views on the Energy Package Electricity and Gas.

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34

Box 4 – "Good practice" example of an impact assessment being presented and discussed in an European Parliamentary Committee working group

At the Internal Market and Consumer Protection Committee, a working group meeting was dedicated to the presentation and discussion of the IA on the Proposed Directive on Consumer Rights³⁵. After a short presentation of the IA by a representative of the Commission, several MEPs commented on the substance of the IA report and made suggestions as to what aspects would merit further attention by the Commission. This example demonstrates that IAs can play a role in informing legislators and discussing IA reports with MEPs can provide relevant feed-back to the Commission with regard to the legislative proposal.

• - 

  Internal Council guidance suggests discussion of the Commission’s IAs at Working Party (WP) level³⁶. According to interviews carried out with Council officials, a formal discussion of the IA and where appropriate a Commission presentation is decided on a case-by-case basis (see Box 5 for a "good practice" example). An analysis of the Council public register for the 2004-2009 period showed that only four documents made explicit reference to a Commission IA.

Box 5 – "Good practice" examples of impact assessments being discussed in Council WP

During the period audited, two IAs in the energy policy field were presented in the Council Working Party: the legislative package on the internal market for electricity and gas³⁷ and the package of implementation measures for the EU's objectives on climate change and renewable energy for 2020³⁸. In both cases the discussion took place at the Commission’s suggestion. It was not limited to one WP meeting but informed the debate at the Council throughout the legislative decision-making process.

35 36

COM(2008) 614.

Council of the EU, General Secretariat, Handling IAs in Council. Indicative guidance for

working party chairs, 2007.

COM(2007) 528, COM(2007) 529, COM(2007) 530, COM(2007) 531 and COM(2007) 532.

COM(2008) 16, COM(2008) 17 and COM(2008) 19

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Commission impact assessments provide relevant and informative documentation supporting the proposal to the European Parliament and Council

• 30. 

  Although the Commission’s IAs are in almost all cases not formally referenced in European Parliament and Council official documents, users of the Commission's IA reports at both institutions stated that the reports are perceived as providing relevant additional information in support of the Commission’s proposal (see Figure 5).

Figure 5 - Council WP survey: The Commission’s impact assessment role in informing decision-making within the Council

The Commission's IA plays an important role in informing the decision-making within the Council.

IA has informed decisions or positions taken by the delegation

Delegations comment on the substance of the IA during the WP meetings.

Delegations ask the Commission for further details on its assessment.

50 %

38 %

35 %

42 %

55 %

57 %

%

7 %

%

Source: ECA Council WP Survey (2009).

Users believe that impact assessments had a positive effect on the quality of EU legislation

• 31. 

  During the audit, users interviewed at the European Parliament and the Council generally indicated their support for IA. A large majority of respondents to the Council WP survey (68 %) felt that the IA reports they had reviewed had a positive effect on the quality of the final legal act. This positive view of the Commission's IA system was also corroborated by national experts on Better Regulation surveyed at the DEBR meeting in June 2009. More than 8 out of 10 respondents (85 %) saw IA as a contribution towards the EU policy objective of Better Regulation (see Figure 6).

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Figure 6 - Surveys: Contribution of impact assessment to 'Better Regulation'

100%

75%

50%

25%

Directors and Experts for ‘Better Regulation’ surveyed:

Delegates in Council WP surveyed:

Is the Commission’s IA system For those IA reports I have personally analysed,

effectively leading to ‘Better Regulation’?

85 %

15 %

I consider that they have positively contributed to the quality of the final legislative act.

68 %

20 %

12 %

Source: ECA Council WP Survey/ Directors and Experts for ‘Better Regulation’ Survey (2009). Note: 26 / 90 responses.

Interest groups and civil society organisations take impact assessments into account when contributing to the discussion of legislative proposals

• 32. 

  Public scrutiny of legislative proposals is of the utmost importance in relation to the policy objective of Better Regulation. The Commission's final IA reports are public documents available online to all interested parties once the related policy initiative has been proposed. This is international good practice (see Annex I).

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• 33. 

  Interviews with stakeholder organisations representing interest groups and civil society³⁹ showed that their representatives systematically took IAs into account. However, they often indicated that they saw the IA reports as a policy justification of the Commission’s proposal rather than an independent assessment of its possible impacts (see paragraphs 47 to 50). This criticism was more pronounced with regard to IAs undertaken in the early years of the system's operation and has since become less of a concern.

Amendments to the initial Commission proposal are not subject to additional assessments of potential impacts

The Parliament and Council carried out eight impact assessments of amendments to the Commission proposal.

• 34. 

  The institutional set-up of the European Union means that legislative decision-making differs from that in most Member States. According to the Treaty, while the European Parliament and the Council act as legislators, the Commission has the sole right of initiative. Under the Lisbon Treaty co-decision has been extended to more policy areas⁴⁰.
• 35. 

  In practice, nearly all Commission proposals are modified (sometimes to a significant extent) by the legislator during the legislative procedure. Therefore, the European Parliament and the Council have agreed that, where the co-decision procedure applies, they may, “… on the basis of jointly defined criteria and procedures, have IAs carried out prior to the adoption of any substantive amendment, either at first reading or at the conciliation stage”⁴¹. This commitment was reaffirmed in the 2005 Inter-institutional agreement on a ‘Common approach to IA’⁴².

40

³⁹ Business Europe, Eurochambers, European Consumers’ Organisation, European

Environmental Bureau, European Federations for Transport and Environment, European Trade Union Federation, Social Forum, World Wide Fund for Nature (WWF). Since its introduction under the 'Maastricht Treaty' in 1993, the scope of application of co-decision is constantly expanding. Under the 'Lisbon Treaty' co-decision has been renamed the 'ordinary legislative procedure', and its field of application has nearly doubled from 44 to around 90 policy areas.

Inter-Institutional Agreement on better law-making (2003/C 321/01, Article 30). Inter-Institutional Agreement on a common approach to IA (14901/05 JUR, adopted at 29.11.2005).

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• 36. 

  However, this aspect of the Inter-institutional agreement has only been partially implemented by the European Parliament and the Council. Between 2005 and 2008, the European Parliament adopted 377 acts of secondary legislation and the Council 1946⁴³. The audit found that during this period:
• - 

  the European Parliament had carried out IAs for amendments on seven proposals⁴⁴,

and

• - 

  the Council had carried out one IA⁴⁵.
• 37. 

  The European Parliament⁴⁶ and Council⁴⁷ have recently reconfirmed their commitment

to carrying out IAs on their own substantive amendments. However, whereas the

European Parliament has created the conditions for producing its own IA studies by putting

a framework contract for the related procedures in place, this is not yet the case at the Council⁴⁸.

The Commission’s impact assessments are not updated during the legislative procedure

45

46

⁴³      see http://eur-lex.europa.eu/RECH_menu.do?ihmlang=en last viewed on 15 June 2009.

⁴⁴      IA: The European Parliament’s Experience – A Stock-Taking Report of the Common Approach to IA, The Conference of Committee Chairs, December 2008 (IAs on amendments: 1) priority substances in water (February 2008); 2) certain aspects of the Working Time Directive (July 2007); 3) The "Interoperability of the Community railway system II" (April 2007); 4) Proposed Air Quality Directive (September 2006); 5) Nominal Quantities for Prepacked Products (November 2005); 6) IA of recycling targets in the waste framework directive (May 2008); 7) Directive 2006/66/EC on Batteries and Accumulators and Waste Batteries and Accumulators and repealing 91/157/EEC (November 2005). Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC (OJ L 266, 26.9.2006, p. 1).

European Parliament, Committee on Legal Affairs, Rapporteur Katalin Lévai, Report on Better Regulation in the EU (2007/2095(INI)); A6-0280/2007 final, 2.7.2007: in particular, see explanatory statement and paragraphs 5-15, 21, 26, 30, 42 to 43; European Parliament, Working Party on Parliamentary Reform, Second Interim Report on Legislative Activities and Inter-Institutional Relations, 21 May 2008, PE 406.309/CPG/GT (Internal European Parliament document), Part A, paragraph 1.3, p. 13-14).

Council, General Secretariat, Competitiveness Council conclusions on 'Better Regulation', 9663/09 COMPET 264, 13.5.2009; paragraph 13.

Note from the director of General Secretariat, Directorate-General C, Directorate I, Review of the Inter-institutional Common Approach to IA – State of play of the handling of IA in the Council, Brussels, 3.11.2008.

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• 38. 

  In addition to IAs carried out by the European Parliament or the Council, the inter-institutional agreements provide that the legislators can invite the Commission to update its initial IA in light of the amendments adopted by the European Parliament or the Council⁴⁹.
• 39. 

  Updating the Commission's IA report or carrying out IAs on substantive amendments by the European Parliament and the Council would be most relevant for significant pieces of legislation or in those cases where significant changes to the initial Commission proposal (for instance with regard to the intervention logic or instruments used) had been proposed for adoption⁵⁰.
• 40. 

  However, no case was found during the audit where such an update had been carried out by the Commission and had subsequently resulted in a revised IA report. This was not even the case for the "Services Directive", which was substantially altered during the legislative procedure (see Box 6).

Box 6 – Example of the Commission's proposals for a "Directive on services in the internal market"

With its legislative proposal, the Commission aimed at reducing barriers to cross-border trade in services within the EU. The initial Commission proposal was presented in March 2004⁵¹, and the related IA report in January 2004⁵². On 22 March 2005, the European Council considered that the Commission needed to carry out a far reaching revision of its initial proposal to better preserve the European social model. On 5 April 2006 the Commission presented a modified proposal to the Council, including most of the modifications voted by the European Parliament, in accordance to the co-decision procedure in the first reading. On 29 May 2006 the Council approved the amended text⁵³. However, no revised IA was presented to reflect the impacts of the changes made to the initial proposal. The revised proposal finally adopted on 12 December 2006 by the European Parliament and Council, as the Directive 2006/123/EC.

49

Inter-institutional agreement on a common approach to IA (14901/05 JUR, adopted at

29.11.2005), point 12.

Inter-Institutional agreement on better law-making (2003/C 321/01): in particular point 30.

European Commission, Proposal for a Directive of the European Parliament and of the

Council on services in the internal market, COM(2004) 2 final/3, 5.3.2004.

SEC(2004) 21.

Opinion of the European Parliament of 16 February 2006, Council Common Position of 24

July 2006 (OJ C 270 E, 7.11.2006, p. 1) and Position of the European Parliament of 15

November 2006. Council Decision of 11 December 2006.

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50 51

52 53

Use of national impact assessments by Member States during the legislative procedure: UK "good practice"

• 41. 

  In addition, IAs of Commission proposals could also be performed by national administrations to build their government’s negotiating position at the Council. The audit found, however, that in practice only the UK seeks systematically to use its national IA system for this purpose (see Box 7).

Box 7 - National impact assessments on Commission proposals - international "good practice"

The UK carries out national IAs on significant Commission initiatives to support the negotiating position of its Permanent Representation⁵⁴. It carries out its own IA, generally using data related to the UK, and thereby challenges the analysis provided in the Commission's IA. In Germany, the Bundestag has introduced a requirement to assess the implications of proposed EU legislation, but in actual fact this has not yet been implemented⁵⁵. In Poland, the authorities also have the mandate to prepare a national IA in the event of a significant legislative proposal, but this has not yet resulted in a formal IA.

The Commission’s procedures for the preparation of impact assessments

• 42. 

  The Commission’s procedures for IA determine the way in which IAs provide support for the Commission’s internal decision-making. For this purpose, the audit examined whether the Commission's approach ensured
• - 

  selection of those initiatives to undergo IA which have the most significant impact or

are politically the most sensitive;

• - 

  consultation with stakeholders for the most important stages of the IA process; and
• - 

  quality review of its IA work.

⁵⁴      UK Better Regulation Executive, IA guidance, http://www.berr.gov.uk/files/file44544.pdf

⁵⁵      Agreement between the German Bundestag and the Federal government on cooperation in matters concerning the EU in implementation of section 6 of the Act on Cooperation between the Federal government and the German Bundestag in matters concerning the EU (Vereinbarung zwischen dem Deutschen Bundestag und der Bundesregierung über die Zusammenarbeit in Angelegenheiten der Europäischen Union in Ausführung des § 6 des Gesetzes über die Zusammenarbeit von Bundesregierung und Deutschem Bundestag in Angelegenheiten der Europäischen Union); Paragraph I.5.; Bundesgesetzblatt 2006 Part I No. 44 Bonn, 30. September 2006.

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Lack of transparency in the selection procedure and targeting of impact assessment work

• 43. 

  IAs should be targeted at those initiatives that have the most significant impacts on citizens, businesses and administrations or that are politically sensitive. In its guidance material, the Commission specifies the criteria according to which its departments (together with the Secretariat General) determine the initiatives that require an IA.

The Commission's selection of initiatives for which impact assessments are undertaken depends on judgement rather than quantifiable indicators

• 44. 

  The Commission does not use quantifiable indicators (such as estimated monetised impact) to establish thresholds above which IAs need to be carried out. This stands in contrast to the approach followed in some OECD countries (see Annex I). In addition, the Commission does not motivate its choice of not carrying out IAs for legislative proposals outside the CLWP.

Commission's reporting on legislative activity does not indicate planned impact assessment work

• 45. 

  An overview of all legislative proposals under development within the Commission (forward planning report) is submitted each month to the European Parliament and the Council and is made public on the Europa website. However, this report does not indicate for which initiatives an IA is to be undertaken. This situation differs from the US system, where such initiatives are clearly flagged in the overall catalogue of forthcoming regulatory activity⁵⁶. Similarly, in the UK, government departments are required to publish a list of all planned regulatory proposals for the next three years which are to be accompanied by an IA (see Annex I).

⁵⁶ Planning and monitoring regulatory activity in the USA: Every six months, the Office for Information and Regulatory Affairs (OIRA) at the President’s Office for Management and Budget (OMB) prepares a ‘Regulatory agenda and plan’; compiling information on forthcoming regulatory activity from all federal agencies and its anticipated gross impact in terms of costs and/or benefits. This plan identifies for which implementing rules proposed by agencies IAs are to be carried out. The plan is made public.

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• 46. 

  In the audited period, the roadmaps attached to the CLWP were the only documents that provided an indication for which initiatives IAs are to be carried out. The CLWP itself did not, however, flag those initiatives. As a result, outside the Commission, IAs that were not related to initiatives included in the CLWP (i.e. the majority of IAs in 2008) were not visible beforehand.

Consultation is widely used as input for impact assessments, but interim results of impact assessment work are not put out for information and comment

• 47. 

  The IA process should be transparent and draw on the expertise and views of others. Public scrutiny is as an effective verification mechanism to ensure that IAs address the most relevant issues, include all feasible policy options and provide a balanced view. Consultations enable the Commission to gather the opinions of interested parties and to take into account various points of view. These consultations should be carried out in accordance with the Commission's own standards in this matter⁵⁷.
• 48. 

  Consultations with stakeholders are widely used by the Commission, and the contributions submitted are increasingly made public on the 'Europa' website. The audit found that the minimum consultation periods were generally respected.
• 49. 

  However, the Court’s analysis also indicated that the Commission never consulted on interim IA results. Whereas consultations were sometimes used to identify possible policy options early in the process (21 % of cases of IAs reviewed), they virtually never concerned the Commission's preliminary assessment of alternative policy options. In the survey with Council WPs, 72 % of respondents said that an interim draft report should be made available some time before the Commission proposal was published (see Figure 7). This could be of particular help in improving the completeness, consistency and accuracy of the analysis. It would also provide a basis for better identifying and quantifying potential costs and benefits, administrative burdens and problems with implementation and enforcement.

⁵⁷ European Commission, Communication on 'Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission', COM(2002) 704 final

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Figure 7 - Council WP Survey: An interim impact assessment report should be made available some time before the proposal.

‘Don’t know’ 16 %

‘Disagree’ or ‘strongly disagree’

11 %

Strongly agree’ 26 %

‘Agree’ 47 %

Source:         ECA Council WP Survey (2009).

Note:             91 responses.

• 50. 

  This aspect of the Commission procedure stands in contrast to the approach in OECD countries like Australia⁵⁸, the USA⁵⁹ and the UK⁶⁰ where draft IA reports are systematically published for information and comment or where draft versions of a proposed legal act are discussed with stakeholder organisations (see Annex I).

58

59

60

Council of Australian Governments: Best Practice Regulation. A Guide for Ministerial Councils and National Standards Setting Bodies. October 2007.

O´Connor Close, C.; Mancini D.J.: Comparison of US and European Commission guidelines on Regulatory IA/Analysis. Industrial Policy and Economic Reforms Papers No. 3. April 2007. Info also on www.regulations.gov

UK Cabinet Office, Better Regulation Executive, IA Guidance, London, May 2007.

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Recent improvements in the Commission's quality review of its impact assessment reports

Impact Assessment Board reviews quality of impact assessments within the Commission 51. Since 2007, the Impact Assessment Board (IAB) has provided a centralised internal quality review. This approach differs from that taken in some Member States⁶¹ (see Box 8 and Annex I). In 2007, the European Parliament’s Committee on Legal Affairs proposed that an independent panel of experts should be set up to monitor the quality of opinions delivered by the IAB and that representatives of interested parties should also be allowed to assist in conducting them⁶².

Box 8 - External quality review arrangements for impact assessment work – examples of the Netherlands, Germany and Sweden

In some Member States, the body which carries out the quality review of IAs with regard to aspects related to administrative burden is external to the government. This is the case in the Netherlands (ACTAL), in Germany (Normenkontrollrat) and, since 2009, in Sweden (the Regelrådet). Externalising the quality control for the Commission's IA system, along the lines of the German or Dutch models, has also been discussed in recent studies⁶³.

62

⁶¹ Letter by the Secretary General of the Commission to the Chairmen of Adviescollege Toetsing Administratieve Lasten of The Netherlands, Nationaler Normenkontrollrat of Germany, Regelrådet of Sweden and Regulatory Policy Committee of United Kingdom in response to a Position paper on Achieving a sustainable reduction of administrative burdens in the European Union.

European Parliament, Committee on Legal Affairs, Rapporteur Katalin Lévai, Report on Better Regulation in the EU (2007/2095(INI)); A6-0280/2007 final, 2.7.2007: This request was reiterated in 2008 by the EP's Working Party on Parliamentary Reform, which stressed the importance of checking the Commission’s IA reports and monitoring the IAB’s activities (see European Parliament, Working Party on Parliamentary Reform, Second Interim Report on Legislative Activities and Inter-Institutional Relations, 21 May 2008, PE 406.309/CPG/GT (Internal European Parliament document), Part A, point 1.1 and 1.4, p. 13 -14). The Evaluation Partnership, Evaluation of the Commission’s IA System, Contract SG-02/2006 on behalf of the European Commission, April 2007, p. 137; Centre for European Policy Studies (CEPS), “Policy-making in the EU – past achievements and proposals for reform”, Final Report, 2009, p. 31.

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63

• 52. 

  Since 2008, the IAB has reviewed practically all draft IA reports. Its quality control covers all aspects dealt with in an IA and all stages of the process, starting with a preliminary review of the roadmap. In cases where the IAB considers the IA report to be of insufficient quality, it can request resubmission. In 2008, this happened in 43 out of 135 cases. Four of these 43 resubmitted reports even had to be revised and resubmitted a third time.
• 53. 

  According to the Commission staff interviewed in connection with the in-depth case studies, the creation of the IAB as an internal quality review body has put pressure on the DGs to present good quality draft reports. It has also added transparency to the system since all IAB opinions are published on the Europa web-site.

Effectiveness of quality review subject to timely availability of IAB opinion

• 54. 

  Considering that the Commission initiative has to go through inter-departmental consultation, decision-making by the Members of the Commission and translation, the IAB opinion can only have a substantive effect on the final version of the underlying initiative if the IAB review takes place early enough in the process. IAB recommendations are in many cases substantial and, if followed, would imply significant additional IA work and potential changes to the initiative. This in 2007 and 2008 represented a challenge, since in one third of the cases analysed the time between the final IAB opinion and the adoption of the proposal was less than 6 weeks (see Box 9 for an example). The analysis also indicated that the final IAB opinion was not always sufficiently clear as to whether IA reports, without taking into account the final set of recommendations issued by the board, were considered to be of insufficient quality.

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Box 9 – Example of a Commission proposal not taking the final IAB opinion into account

The example of the IAB opinion on the Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation⁶⁴ demonstrates how challenging the timing can become: there were only twelve days between the IAB opinion (which contained a number of significant recommendations) and the publication of the initiative. None of the recommendations in the final board opinion were addressed in the IA report or the Commission proposal.

Weaknesses of review process with regard to IAB mandate

• 55. 

  With regard to the role of the IAB in identifying initiatives that should undergo IA⁶⁵, the audit showed that the board's mandate was not yet sufficiently robust. In 2008, the IAB initially saw a need for 55 additional IAs. After consulting with the DGs, the IAB still considered it necessary to conduct an IA in 26 cases. Of these, in five cases the DG did not agree to produce an IA. Unlike the Office of Information and Regulatory Affairs which plays a similar role in the US system, the IAB has no formal mandate to oblige DGs to initiate IA work⁶⁶ (see Annex I).
• 56. 

  Moreover, the IAB has no right of veto which would put the IA report (and the related legislative proposal) on hold: instead, the Secretariat-General may intervene at the interdepartmental consultation stage in relation to either document. However, no intervention specifically addressing the final IA report had been observed in the audited period.

64 65

66

COM(2008) 426.

Information note from the President to the Commission, Enhancing quality support and

control for Commission IAs, The Impact Assessment Board, 14 November 2006.

In the USA, the Office for Information and Regulatory Affairs (OIRA) reviews significant

proposed and final rules prior to publication in the Federal Register. It has a de-facto veto

right concerning IAs, which effectively prevents regulatory measures from becoming law (so

called "return letters") and a right of initiative which forces agencies to carry out IAs (so

called "prompt letters").

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Content and presentation of the Commission's impact assessment reports

• 57. 

  The results of the IA process are summarised in IA reports which should provide information based on which the legislators can decide on the most appropriate way to address the problem identified. Therefore, the Commission's IA reports are expected to provide a comprehensive and comparative assessment of the different feasible policy options. The audit examined whether
• - 

  the IA reports provided a description of the issue to be addressed and explained how

the benefits of a planned intervention would be attained;

• - 

  the information provided in the IA reports was presented in a user-friendly way and

allowed to compare the alternative options analysed;

• - 

  IAs provided the content that is most relevant to policy makers (such as information on

potential implementation problems, enforcement issues and administrative burdens).

In this context the Court recognises that any analysis of potential future impacts is necessarily uncertain, incomplete and simplified.

Problems to be addressed and policy objectives are appropriately described, but the intervention logic is not made explicit

• 58. 

  IA reports should provide a description of the problem at stake, specify relevant policy objectives and set out a range of appropriate options to address the problem identified. Further, they should illustrate how the intended outcomes and results can be achieved with the proposed delivery mechanism. According to the Commission's guidelines, this should be done by describing the intervention logic⁶⁷.

⁶⁷ European Commission, 2005/2006 IA Guidelines, SEC(2005) 791, p. 20.

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Impact assessment reports provide a sound description of the problem and specify policy objectives

• 59. 

  Since 2003, the Commission’s guidelines have required IAs to identify the problem to be addressed and establish policy objectives corresponding to the problem and its causes. All IA reports reviewed in the Court’s analysis contained sections on problem identification and policy objectives. As far as the in-depth cases are concerned, these sections provided an adequate overview of the problem and specified a set of reasonable policy objectives.
• 60. 

  This was corroborated by the enquiries with users of IA reports in the other institutions, Members States and stakeholder organisations. They reported that these sections of the IA reports often enabled them to understand better the Commission’s reasons for initiating a proposal. According to the interviewees, these sections were the most read parts of the IA reports. Also, 84 % of respondents to the Council WP survey “agreed” or “strongly agreed” that the problem description enabled them to have a better understanding of the reasoning behind the proposal.

Intervention logic not used to illustrate how expected benefits are to be attained

• 61. 

  In none of the cases reviewed in the Court’s analysis did the IA provide an explicit description of the intervention logic underlying the initiative, despite the requirement to do so⁶⁸. As a consequence, the IA reports do not provide a convincing basis for assessing whether the objectives and expected outcomes of the proposed intervention can be achieved with the intended delivery mechanisms and, with regard to expenditure programmes, the estimated budget.⁶⁹

⁶⁸      European Commission, IA Guidelines, SEC(2005) 791, p. 20.

⁶⁹      see also European Court of Auditors: Special Report No 9/2007, Evaluating the EU Research and Technological Development (RTD) framework programmes — could the Commission’s approach be improved?; Special Report No 7/2008, Intelligent Energy 2003-2006; Special Report No 2/2009, The European Union's Public Health Programme (2003-07): An effective way to improve health?

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Impact assessment reports do not provide a sound basis for the comparison of alternative policy options

• 62. 

  IAs must be easily accessible and understandable to non-expert readers in order to be used in policy making. They should help to identify the policy option and delivery mechanisms which best address the problem, by providing a comparative analysis of the options. This can be best achieved by providing information in quantitative and monetary terms. IAs should therefore specify the costs and benefits of proposals, how they occur and who is affected. According to the Commission's guidelines, all impacts should be quantified and monetised where possible and appropriate, based on robust methods and reliable data⁷⁰.

Presentation of impact assessment reports does not reveal key messages to the reader

• 63. 

  Although the presentation of IA reports follows a common structure set out in the IA guidelines, users often have difficulty in rapidly gathering their main results and messages. This is mainly explained by their length and technical nature and the complexity of the language used (see Figure 8) and by the other weaknesses described below.

Figure 8 - Council WP Survey: Main obstacles to an effective use of Commission impact assessments

Lack of summary

Language availibility

33%

35%

Use of technical language

Length of the document

37%

48%

Source: ECA Council WP Survey (2009). Note: 93 responses.

70

European Commission, 2005/2006 IA Guidelines, SEC(2005) 791.

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Analysing all economic, social and environmental impacts is a challenge

• 64. 

  The Commission's self-imposed requirement to assess all significant economic, social and environmental impacts (the “three pillars”) is ambitious. The international comparison identified no other system where a similarly comprehensive approach was followed (see Annex I).
• 65. 

  The Court’s analysis showed that, in practice, the Commission's IA work was asymmetric between the three pillars and between costs and benefits (see Figure 9). However, according to the survey of the Council WPs, a majority of respondents thought that there was an appropriate balance between the economic, environmental and social impacts of the different policy options (see Figure 10).

Figure 9 - What impacts were assessed - economic, environmental or social (selected DGs; period 2003-08)?

100 % 80 % 60 % 40 % 20 %

86 % 84 %              45 % 63 %            62 % 84 %

II lil

Cost Benefit

Economic

Environmental

Social

Type of impacts

Source: ECA ‘Scorecard analysis’ (2003-2008).

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Figure 10 - Council WP Survey: In the Commission's impact assessment reports there is an appropriate balance between economic, social and environmental impacts

58 %

• 66. 

  The Court’s analysis showed that IA reports generally did not present the alternative options analysed in a way which allows for a straightforward comparison. This was due to three reasons: a lack of quantified impact analysis, insufficient use of methods to compare and present qualitative evidence and an asymmetry in the depth of analysis between different options.
• 67. 

  Firstly, impacts are not sufficiently quantified and monetised to provide a robust basis for aggregation and for a comparison of options (see Figure 11). This is also what respondents to the survey reported: nearly half (48 %) “disagreed” or “strongly disagreed” that an appropriate quantification and monetisation of the costs and benefits of the impacts of the different policy options had been achieved (see Figure 12). Some OECD countries

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have a stricter requirement to quantify costs and benefits (see Annex I), but quantification is not always achieved (such as for example in the UK⁷¹).

Figure 11 - What impacts were quantified or monetised (selected DGs; period 2003-2008)?

100% 80% 60% 40% -20%

53% 41%

12% 22%

12% 23%

Cost Benefit

Economic          Environmental            Social

Type of impacts

Source:         ECA ‘Scorecard analysis’ (2003-2008)

Figure 12 - Council WP Survey: In the Commission's impact assessment reports there is an appropriate quantification and monetisation of costs and benefits

60 % -, 50 %

40 % h 30 % 20 % 10 %

42 %

38 %

0 %

14 %

6 %

O

Source: ECA Council WP Survey (2009). Note: 71 responses.

71

National Audit Office, Delivering High Quality IAs, 30.1.2009, p. 14.

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• 68. 

  In those cases where quantification and monetisation is difficult, a robust analysis of qualitative aspects can help to compare alternative options. But non-quantitative methods are also not widely used, and in particular not for comparing options: the Court’s analysis showed that ‘multi-criteria analysis’ was used in 44 % of IA reports, ‘sensitivity analysis’ in 12 % and ‘risk analysis’ in 11 %. All these three methods feature in the IA guidelines as methods for comparing impacts⁷². In addition, the Court’s analysis found that only in 35 % of the IA reports the options were easily comparable.
• 69. 

  Finally, the Court’s analysis revealed that the depth of analysis for the different options was not balanced and that significantly more information was presented for a subgroup of the options and often only for the option that was later retained for the Commission proposal. This was the case in approximately half of the cases reviewed (51 %). Without a consistent depth of analysis, comparisons between options are difficult to make for the reader.

Availability of data for impact assessments remains a problem

• 70. 

  Many of the challenges with the analysis of impacts can be traced back to the problem of data availability. According to interviews with Commission staff the timely collection of standardised and comparable data poses a particular problem. Differences in the availability and reliability of data between Member States compound this issue, as illustrated in the example below (see Box 10).

Box 10 – Example of problems with data quality and availability

In the case of the "Equal Opportunities" IA⁷³, reliable and comparable data was not available at Member State level in respect of certain groups that were likely to be subject to discrimination. The Commission therefore used opinion surveys on people’s perception of discrimination and data provided by the European Business Test Panel. In this data set, however, several large Member States were not covered whereas other, mostly smaller EU countries were over-represented. As a result, there is no evidence that the data is representative of the Union as a whole. In addition, the Commission provided no data on the Member States' experiences with existing anti-discrimination Directives and their implementation in its IA report.

⁷²      Annexes to IA guidelines (SEC(2005) 791), p. 58-59.

⁷³      European Commission, IA for the Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, SEC(2008)2180, p. 11.

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• 71. 

  During the period audited, increasing use was made of external studies to gather data and this is further encouraged in the 2009 revision of the Commission guidelines⁷⁴. On the other hand, the audit found that internal sources such as the Commission's Joint Research Centre (JRC) or EUROSTAT (the Commission's statistics department) are not actively used to determine the availability of Member State specific data for IA purposes and to provide such data (for example in cooperation with national statistics offices). The network of bodies like the Committee of Regions, the Economic and Social Committee or the High Level Group for Better Regulation are also not used to that end.

72 In its recent conclusions on Better Regulation, the Competitiveness Council invited the Commission to cooperate with Member States at an early stage when gathering data for the preparation of IAs in order to take into account Member State specificities to be reflected in its subsequent preparatory work⁷⁵.

Information on implementation aspects, enforcement costs and administrative burden is weak

• 73. 

  The effectiveness of an intervention and its costs are influenced by the way in which it is implemented and enforced by the Commission, and ultimately by the Member States. Missing information on implementation problems encountered with existing legislation with is problematic since knowledge of such aspects is relevant to prevent similar problems after a review. This is why implementation aspects should be analysed in an IA, and information on the transposition and implementation of existing regulatory measures need to be collected. This information can be provided inter alia through the ex-post evaluation of existing policies and programmes.

⁷⁴      European Commission, 2009 IA Guidelines, SEC(2009) 92, p. 17.

⁷⁵      Council, General Secretariat, Competitiveness Council conclusions on 'Better Regulation', 9663/09 COMPET 264, 13.5.2009; point 18.

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Implementation aspects are not sufficiently covered by impact assessments

Plan to address potential implementation problems only presented for a minority of impact assessments

74 The audit found that the Commission does not give sufficient weight in its IAs to implementation arrangements. The Court’s analysis indicates that an explicit discussion and a plan to address potential implementation problems were provided in only 37 % of all reports reviewed. Several cases were found where important implementation aspects had not been adequately analysed in the IA reports.

• 75. 

  Enquiries with users of IA reports outside the Commission (MEPs, Member State representatives and officials of the European Parliament and Council) indicated that the implications of transposition and implementation were of great relevance during the legislative decision-making process. This is also corroborated by the work of national audit bodies in Member States⁷⁶. The example in Box 11 illustrates possible consequences of an inadequate analysis of implementation aspects during the legislative decision-making process.

Box 11 – Assessment of implementation aspects: Impact assessments on "Consumer rights"

The IA on "Consumer rights"⁷⁷ did not contain a robust analysis of the European harmonisation effect that would ensue in the different Member States from the proposed Directive⁷⁸. In particular, the IA lacked an analysis of the differences between the existing national legislation and the new proposed harmonised rules on consumer rights legislation. This was also noted by the "Consumer Protection Working Group" composed of MEPs from the European Parliament's "Committee on the Internal Market"⁷⁹. As a consequence, the initial Commission proposal is expected to be significantly modified during the legislative procedure to better take the specific situation of Member States into account.

⁷⁶      see Algemene Rekenkamer, "European legislation: The implementation of European directives and the enforcement of European regulations in the Netherlands", 17 June 2008.

⁷⁷      European Commission, IA on "Consumer rights", SEC(2008) 2544.

⁷⁸      European Commission, Proposal for a Directive on Consumer Rights, COM(2008) 614.

⁷⁹      The presentation of the Commission’s IA and the subsequent discussion during the "Consumer Protection Working Group" meeting on 4 February 2009 was observed as part of the audit evidence collection procedures.

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• 76. 

  Commission staff in charge of IAs indicated their difficulties in assessing such specific aspects for a European Union in which legislation is incorporated into 27 legal systems and implemented and enforced by an even higher number of national and regional bodies. They also pointed to the absence of national IAs for EU initiatives, which could provide a valuable source of information on potential obstacles to effective implementation resulting from specific national contexts and reliable estimates for the potential enforcement costs of a legislative proposal (see paragraph 41).

Ex-post evaluations do not provide information on implementation problems of existing policies and programmes

• 77. 

  Finally a public intervention (and its actual impact) should be assessed through ongoing monitoring and ex-post evaluation to improve further development of interventions. To enable learning and feedback for future initiatives, ex-post evaluations would need to collect relevant information on compliance with legislation and the effectiveness of the rules as compared with the envisaged results initially set out in the IA⁸⁰.
• 78. 

  The audit showed, however, that during the period audited the focus of the Commission's ex-post evaluations differed significantly from that of IA. The analysis of the Commission's overview of its 2007 evaluations⁸¹ shows that 24 % of ex-post evaluations addressed issues related to the review of existing (sectoral or cross-cutting) legislation. In comparison, a large majority of IAs are carried out in support of draft legislation (62 %), as illustrated by the Court’s analysis.

80

81

European Commission, 2005/2006 IA Guidelines, SEC(2005) 791, p. 45 and European Commission, 2009 IA Guidelines, SEC(2009) 92, p. 48-49.

European Commission, Evaluation in the Commission - Reporting on Results: Annual Evaluation Review 2007 - Conclusions and findings from evaluations in the Commission, SEC(2008) 300, May 2008; Annex I and II.

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• 79. 

  Moreover, very few of the Commission's evaluations reviewed the transposition and implementation of EU legislation in Member States⁸². They also did not assess whether the initial objectives of the regulatory measure had been achieved, and if not, for what reason as is the case in some OECD countries (see Annex I). This limits the use that can be made of the results of such evaluations by IAs that accompany Commission proposals to review such legislation.

Enforcement costs and administrative burdens not sufficiently assessed Enforcement costs

• 80. 

  Drafting enforcement-friendly legislation is the most effective way to prevent excessive enforcement costs.⁸³ The Court’s analysis indicates however that only 11 % of the IA reports contained estimates of enforcement costs. For EU expenditure programmes, such costs are either incurred at the Commission itself (in the case of direct management) or jointly with the Member States (in the case of shared or decentralised management). The in-depth review of the IAs related to two major EU expenditure programmes (i.e. the IAs on Cohesion and the 7^th RTD Framework Programme (FP7)⁸⁴) showed that in these cases enforcement costs had not been analysed in detail.

Administrative burden of existing legislation: reduction action programme

• 81. 

  In March 2007, under the EU Better Regulation initiative, the Commission and the Heads of State and Government of all the Member States agreed to reduce the administrative burden resulting from existing EU law by 25 % by 2012. The Commission subsequently initiated a systematic measurement of information costs for businesses resulting from EU legislation⁸⁵ (see Box 12). In August 2007, a "High Level Group of Independent Stakeholders on Administrative Burdens" was set up to provide advice to the Commission in this area.

82

83

84

85

Bruegel, "Europe’s economic priorities 2010-2015: Memos to the new Commission", Edited

by André Sapir, 2009, p.17.

European Commission, A Europe of Results – Applying Community Law; COM(2007) 502,

• p. 

  6.

SEC(2005) 430 and SEC(2004) 924 respectively.

European Commission: Communication from the Commission to the Council, the EP, the

EESC and the CoR: Action programme for reducing administrative burdens in the EU,

COM(2007) 23 final, 24.1. 2007.

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Box 12 – Commission's Action Programme aimed at cutting red tape

In October 2009, the Commission finalised its measurement of the administrative burdens⁸⁶ that businesses incur in meeting EU legal obligations to provide information on their products or activities, either to public authorities or to private parties⁸⁷. This study estimated the costs imposed by the 72 acts covered by the Action Programme and its 13 priority areas at 123,8 billion euro in 2005⁸⁸. The Commission has identified a total of 486 EU information obligations, and more than 10 000 national obligations which transpose or implement these EU obligations (of which more than 700 go beyond EU legal requirements). Based on this analysis, and in addition to measures that are under its own responsibility, the Commission has initiated a number of legislative proposals to remove or reduce administrative burdens: so far, the European Parliament and the Council have adopted 33 acts (with an estimated reduction of 5.7 billion euro) proposed by the Commission. A further 18 measures that could bring an estimated reduction of 30,7 billion euro are still pending.

Potential administrative burdens of new legislation: only sporadic use of SCM

• 82. 

  In 2006, the Commission adopted the 'Standard Cost Model' (SCM) as a tool to quantify and calculate administrative burden in the context of an IA for new legislation⁸⁹. Since the SCM represents a relatively simple and standardised methodology that is applied in many countries (see Annex I), the assessment of such costs is less complex than determining all economic, social and environmental impacts.

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⁸⁶ European Commission: Communication from the Commission to the Council and the EP: Action programme for reducing administrative burdens in the EU - Sectoral reduction plans and 2009 actions, COM(2009) 544 final, 22.10. 2009.

Information costs include labelling, reporting, registration, monitoring and assessment needed to provide the information. In some cases, the information has to be transferred to public authorities or private parties. In others, it only has to be available for inspection or supply on request.

Agriculture and agricultural subsidies, annual accounts and company law, cohesion policy, environment, financial services, fisheries, food safety, pharmaceutical legislation, public procurement, statistics, taxation and customs, transport, working environment and employment relations. European Commission, 2005/2006 IA Guidelines, SEC(2005) 791, Annex 20.

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• 83. 

  The Commission provides an assessment of administrative burdens resulting from forthcoming legislation in nearly all cases where this is appropriate (35 out of 39 IA reports in 2008). However, despite an explicit requirement to do so, the Commission does not consistently use the SCM to quantify and monetise administrative burden. The Court’s analysis found that the SCM was only used in three cases (5 % of all relevant 2007/2008 IA reports).

Conclusions and Recommendations

Use of impact assessments for decision-making at the Commission, the European Parliament and the Council

• 84. 

  Since 2002 the Commission has put in place a comprehensive impact assessment system, which, for several of the aspects reviewed by the Court, can be considered as good practice within the EU. The Court also noted improvements in the Commission's impact assessments during the period audited. Particularly in recent years impact assessments have helped to improve the Commission’s ability to formulate its proposals. The audit found evidence that the IA procedures have become an integral element of the policy development process and that IA reports are actively used by decision-makers within the Commission.
• 85. 

  Regulatory quality is the responsibility of all three EU institutions involved in the legislative process. The Commission's IAs are systematically forwarded to the European Parliament and Council and users within both institutions consider them helpful when considering the Commission’s legislative proposals. However, IAs are not updated during the legislative procedure as amendments are proposed. Once the initial Commission proposal is amended, neither the Commission, nor the European Parliament or the Council systematically analyse the impact of those amendments. Therefore, the estimated impacts of the final legislative act are not known.

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The Commission’s procedures for the preparation of impact assessments

• 86. 

  Transparency lends credibility, and the Commission's approach to impact assessment is strongest where it provides such transparency. Examples are the publication of the CLWP, roadmaps, full version of the final IA report and, since 2007, the IAB opinions. However, this report identifies the following weaknesses with regard to the Commission’s procedures for selecting initiatives to undergo IA, for consultation with interested parties and for the quality review of draft IA reports:
• - 

  the Commission did not indicate which initiatives are to undergo an IA in advance and also did not motivate why for certain proposals no IA is carried out;
• - 

  consultations with stakeholders were not carried out on interim results of the Commission's IA work (i.e. roadmaps or interim draft IA reports). As a result, the potential benefits of public scrutiny before the proposal is finalised (i.e. gathering the views of all parties concerned at an early stage and the increased acceptance of the resulting legislative proposal) have not fully materialised;
• - 

  the IAB was found to contribute to the quality of IAs. However, in some cases, quality review took place too late in the process and the final IAB opinion was not always clear as to whether IA reports are considered to be of insufficient quality. In addition, the IAB’s mandate is not sufficiently strong when it comes to requesting that DGs undertake IAs.

Recommendation 1: The Commission should enhance the impact assessment process by:

providing an overview of all legislative initiatives (including the review of existing legislation) for which it intends to undertake an IA. A reasoned justification should be provided when an IA is not performed;

publishing, for information and comment, interim documents (such as roadmaps and a draft version of the IA report);

strengthening the IAB's mandate with regard to the identification of initiatives for IA and its early involvement in the quality review of IA work.

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Content and presentation of the Commission's impact assessment reports

• 87. 

  The Commission has adopted an ambitious approach to IA by aiming to analyse all significant economic, social and environmental impacts in one single assessment. IA reports should contain a description of the problem at stake, analyse all feasible policy options in terms of costs and benefits and provide an assessment of implementation and enforcement issues and an estimate of the administrative burden resulting from proposed legislation. It also sets out a framework for future monitoring and evaluation. This comprehensive assessment compares favourably to other IA systems.
• 88. 

  Overall, the IA reports were found to have complied with the requirements specified in the Commission's guidelines. However, the audit identified a number of weaknesses with regard to content and presentation of IA reports:
• - 

  IA reports do not easily reveal their key messages to the reader and comparing the impacts of the various policy options presented in an IA report is often impossible. This is the case for quantitative information but also for impacts assessed in a qualitative manner. The intervention logic of the proposals, which would describe how an intervention is expected to attain its objectives, is generally not made explicit.
• - 

  difficulties in quantifying and monetising impacts can be traced back to the availability of data. This is an area in which the Commission does not yet fully exploit either internal capacities or those of Member States.
• - 

  the assessment of implementation aspects is weak. Ex-post evaluations are not yet designed so as to provide relevant information on existing policies and programmes that could be used in the context of an IA (such as how EU legislation is transposed and implemented by Member States or whether the initial objectives have been achieved).
• - 

  enforcement costs ensuing from European legislation are only rarely quantified and the SCM is not used to assess potential administrative burdens, despite an explicit requirement to do so and in contrast with current practice in other IA systems in Member States. These aspects are, however, very relevant for decision makers at the European Parliament and the Council, in the Member States and among the wider public.

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Recommendation 2: The Commission should enhance the presentation of impact assessment reports and its content by:

• - 

  preparing IA reports in a way that allows a comparison of alternative options in terms of their estimated impacts by improving the quantification and monetisation of impacts and the presentation of qualitative analysis;
• - 

  developing a strategy to improve the quality of data available for IA, taking into account the specific situations in individual Member States;
• - 

  putting more emphasis on aspects related to the implementation and shifting the focus of its ex-post evaluations on the review of the transposition and implementation of EU legislation and the assessment of the achievement of the initial objectives;
• - 

  better analysing the enforcement costs of its legislative proposals and consistently using the 'Standard Cost Model' to quantify administrative burdens.

Impact assessment in the EU institutions: an effective support for decision-making

• 89. 

  The Court considers that the Commission should give due consideration to the principles of clarity of objectives, simplification, realism, transparency and accountability when designing new and revising existing interventions⁹⁰. On balance, the audit has shown that, particularly in recent years, IA has been effective in supporting decision-making within the EU institutions. The European Parliament, the Council and the Commission may wish to consider the findings and recommendations set out in this report when revising their Inter-institutional agreements on "Better Regulation" and a "Common approach to IA. This will also provide an opportunity to take account of the changes resulting from the Lisbon Treaty (in terms of the generalised right of initiative for a group of Member States and the role of national parliaments in EU decision making) that came into force on 1 December 2009.

⁹⁰ see Court’s response to the Commission’s Communication “Reforming the Budget, changing

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ANNEX I

COMPARISON OF SPECIFIC ELEMENTS OF THE COMMISSION'S SYSTEM WITH IA SYSTEMS ELSEWHERE

Sources: * : OECD, "Indicators of Regulatory Management Systems", December 2009 (forthcoming); additional ECA country analysis.

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ANNEX II AUDIT APPROACH AND EVIDENCE COLLECTION METHODS

Identifying the audit subject and planning the audit fieldwork

• 1. 

  The European Court of Auditors identified in November 2007, in its annual work programme for 2008, the "Better Regulation" programme and impact assessments as a relevant audit subject¹. In May and June 2008 a preliminary study was conducted which determined the scope of this audit. The audit fieldwork was carried out between October 2008 and July 2009, based on a specific audit planning memorandum and evidence collection plan.

Overview of evidence collection methods utilised during the audit

• 2. 

  First, the audit team reviewed relevant policy decisions, applicable guidelines of the European institutions (Commission, EP, Council), the OECD, the Member States and countries outside the EU (USA, Australia), previous evaluations of the Commission's IA system², studies and academic literature in the fields of 'Better Regulation' and regulatory impact analysis³ and participated in conferences related to the subject⁴.
• 3. 

  Moreover, the audit work comprised the following five work packages:
• - 

  a comparison of the Commission's IA system with similar systems elsewhere (WP 1);
• - 

  a quantitative analysis of the extent to which Commission initiatives during the period audited had been subject to IA, and how these IAs had been used by the European Parliament and the Council during the legislative procedure (WP 2);
• - 

  a 'scorecard' analysis of a sample of IA reports to verify whether the Commission had carried out its assessments in accordance with its own internal procedures and methodological guidance, together with an 'in-depth' review of a sample of IA reports (WP 3);
• - 

  enquiries with people involved in performing, reviewing and using the Commission's IAs both within and outside the Commission (WP 4); and

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• - 

  surveys among members of Council Working Parties and the Directors and Experts of Better Regulation (WP 5).
• 4. 

  Detailed information on the content of the five work packages is provided below.

WP 1:

International

comparison

WP 2:

Quantitative

analysis

Specific aspects of the Commission's IA system were compared to approaches followed elsewhere on the basis of publicly available documentation (such as OECD documentation⁵, academic literature and comparative studies by bodies responsible for 'better regulation' in the Member States⁶ or co-funded by the European Commission⁷.

Corroborative evidence was gained through country visits to the USA and seven EU Member States (Belgium, Germany, France, the Netherlands, Portugal, Sweden and the United Kingdom).

An analysis of the coverage of the Commission's IA system as a whole to verify to what extent impact assessments were applied to Commission initiatives published during the period audited and the items contained in the CLWPs. For this purpose, a database of almost 5 000 Commission initiatives was established and analysed.

The audit team also assessed the extent to which the EP and the Council used the Commission's IAs, on the basis of the publicly available documentation of the two Institutions (such as meeting agendas, minutes, references in resolutions, etc.)

Moreover, the audit comprised a comparative analysis of the scope and number of IAs and retrospective evaluations undertaken in 2008.

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WP 3: 'Scorecard' analysis and 'in-depth' review

The 'scorecard analysis' was carried out for all IA reports produced by five Directorates-General: Energy and Transport (DG TREN); Regional Policy (DG REGIO); Employment, Social Affaires and Equal Opportunities (DG EMPL); Research; (DG RTD) Information Society and Media (DG INFSO). This corresponds to 115 (out of a total of 404) IA reports published between 2003 and 2008.

The scorecard was established on the basis of the Commission's IA guidelines, and took account of the requirements applicable at the date of publication of the IA report⁸. The checklists used by the UK NAO in a similar exercise related to the UK impact assessment system⁹ and those used by a previous evaluation of the Commission's IA system¹⁰ were taken into consideration for the preparation of the scorecard. Further questions such as certain aspects related to the Impact Assessment Board’s quality control were added.

In addition, an in-depth review was carried out to observe the complete life-cycle from the legislative proposal to the monitoring and evaluation of policies and programmes. The sample included not only recent cases (in particular to assess the IAB's role), but also reports dating back two years or more. It included both reports for proposals with and without budgetary implications and IAs related to directly applicable legislative proposals (Decisions and Regulations) and those requiring transposition and implementation in the Member States (Directives)¹¹.

Some additional cases from outside the remit of the five DGs in the sample were included in this review to obtain a corroborative view on the situation across the Commission as a whole

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International experts in the field of "Better Regulation" provided support throughout the audit

Advisory panel

• 5. 

  An advisory panel of experts in the field of 'Better Regulation' and impact assessment in November 2008 and March 2009 was set up to provide support throughout the audit¹². The experts’ main input was to contribute to the Court’s methodology and analysis and endorse the overall structure for presenting the audit observations, conclusions and recommendations set out in this report.
• 6. 

  In particular, the experts provided their input to the specification of robust audit standards against which the observations in this report are made. These standards were developed on the basis of a meta-analysis of documents issued by the "Mandelkern group"¹³, the OECD¹⁴ and the Commission¹⁵ and of agreements between the latter and the European Parliament and the Council¹⁶ to specify a set of conditions (or 'good practices') which illustrate what should be expected from an effective impact assessment system¹⁷.

Focus Group

• 7. 

  An important step in this audit was the review of the preliminary audit findings during a series of facilitated focus groups on 8 - 10 July 2009 in Luxembourg with international experts in the field of "Better Regulation" and IA. These focus groups constituted an integral part of the audit process and were designed to provide a forum for the critical review of the Court’s preliminary conclusions and possible recommendations. Experts included representatives of the OECD, the World Bank, agencies in charge of IA work (or quality control) in the USA and several EU Member States, national audit bodies, but also academics, evaluators of IA systems and representatives of the 'High Level Expert Group on Administrative Burdens'. Representatives of the Commission participated as observers. More information on the purpose of focus groups is provided below.

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What is a focus group?

Focus groups bring together a group of individuals with a common interest in the form of a collective interview or a structured discussion in which open-ended, but focused, questions are asked so as to trigger a debate amongst the participants. They are particularly well-suited for obtaining a number of views on the same subject. The use of focus groups is common in marketing and, increasingly, in politics and opinion polling in order to elicit responses and reveal new perspectives from a group of people held to be representative of consumers or target groups. The participants need to have an interest in the subject and ideally there should be a mixture of backgrounds. During a focus group session it can be expected that the discussion will stimulate views that, at first, are diverse and even divergent. One key role of the facilitator is therefore to manage the discussion in such a way that common ground can be found and views begin to converge, although full consensus of views is not the aim of a focus group discussion.

• 8. 

  The experts were asked by external facilitators to scrutinise the audit work: the standards that were applied, the facts and findings reported, the conclusions drawn from this and finally, whether the recommendations would help to mitigate the challenges observed by the audit. Their review significantly contributed to the quality, relevance and legitimacy of the overall outcome of the audit process. A report summarising the proceedings and the outcome of the discussions by the external facilitators was submitted to all participants, and the Commission, in August 2009¹⁸.

More questions?

• 9. 

  More information on the audit approach and methods used for evidence collection can be requested from the Court's audit team. Please address your specific question to ImpactAssessmentAudit@eca.europa.eu.

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ECA, 2008 Annual Work Programme, p. 3; ECA, Annual Activity Report, p. 35. The Evaluation Partnership, Evaluation of the Commission’s Impact Assessment System, Contract SG-02/2006 on behalf of the European Commission, April 2007. Radaelli, C., What does regulatory impact assessment mean in Europe?, AEI-Brookings Joint Center for Regulatory Studies, USA, January 2005; Rowe, G.C., Tools for the control of political and administrative agents: impact assessment and administrative governance in the European Union in Hoffman, H.C.H and Turk, A.H. (eds), EU administrative Governance, Edward Elgar Publishing, p. 452, 2006; Renda, A., Impact assessment in the EU: The state of the art and the art of the state, CEPS Paperbacks, 2006; Mather, G. and Vibert, F., Evaluating Better Regulation: Building the system, City research series, European Policy Forum, London, 2006; Wiener, JB, Better regulation in Europe in Current Legal Problems, 2006, vol. 56; Kirkpatrick, C., Parker, D. et al, Regulatory impact assessment. Towards better regulation? The CRC Series on Competition, Regulation and Development. Edward Elgar Publishing, Inc. Massachusetts, USA, 2007; Meuwese, A.C.M., Impact assessment in EU lawmaking, Kluwer Law International BV, The Netherlands, 2008; Open Europe, Out of Control? Measuring a decade of EU regulation, 2009; Hertin, J., et al., The production and use of knowledge in regulatory impact assessment – An empirical analysis in Forest Policy and Economics, 2009; Centre for European Policy Studies (CEPS); Policy-making in the EU – past achievements and proposals for reform; 2009.

International Regulatory Reform Conference, Berlin, November 2008; Zwischenbilanz Nationaler Normenkontrollrat (NKR), Berlin, May 2009.

OECD, Regulatory Impact Analysis (RIA) Inventory, April 2004; OECD, Regulatory Impact Analysis: Best Practice in OECD Countries, 1997; OECD, APEC-OECD Integrated Checklist on Regulatory Reform: Final Draft, 2005; OECD, Indicators of Regulatory Management Systems, December 2009 (forthcoming).

DEBR, Report to the Ministers responsible for Public Administration in the EU Member States on the progress of the implementation of the Mandelkern Report's Action Plan on Better Regulation, Athens, 2003; EU Directors of Better Regulation Group, A Comparative Analysis of Regulatory Impact Assessment in Ten EU Countries, May 2004. European Network for Better Regulation (ENBR) (see http://www.enbr.org/home.php); Evaluating Integrated Impact Assessments (EVIA) (see http://web.fu-berlin.de/ffu/evia/contact.htm). The EVIA project was funded by the Commission under FP6. It was coordinated by the Freie Universität Berlin and the research partners were the Centre for European Economic Research (ZEW), the Institute for European Environmental Policy (IEEP), AVANZI, the Institute for Prospective Technological Studies (JRC-IPTS), the Centre for Regulatory Governance at the University of Exeter and the Institute for Environmental Studies at the Vrije Universiteit Amsterdam.

European Commission, Communication on 'Impact assessment' - 2002 IA Guidelines, COM(2002) 276 final; European Commission, 2005/2006 IA Guidelines, SEC(2005)791 (Unless otherwise stated); European Commission, 2009 IA Guidelines SEC(2009) 92. National Audit Office (NAO), Delivering High Quality Impact Assessments, 30.01.2009, p. 22-23.

Evaluation Partnership Ltd (TEP), Evaluation of the Commission’s Impact Assessment System, April 2007.

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1

2

3

4

5

6

7

8

9

11

12

13 14

15

16

17

18

Council Regulation laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund (SEC(2004) 924); Decision of the European Parliament and of the Council concerning the seventh framework programme of the European Community for research, technological development and demonstration activities (2007-2013) (SEC(2005) 430); Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system (SEC(2005) 1514); Regulation on 'roaming' (SEC(2006) 925); Decision on effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020 (SEC(2008) 85/3); Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (SEC(2008) 2180 and SEC(2008) 2181/2).

The members of the Advisory panel were Erwin de Pue (Director-General of Dienst voor de Administratieve Vereenvoudiging), Gisela Färber (Member of the German 'Normenkontrollrat' and Professor at DHV Speyer); Klaus Jacob (EVIA Project Coordinator at FU Berlin); Claudio Radaelli (University of Exeter); Alberto Alemanno (Law clerk at the European Court of Justice and Professor at HEC Paris) and Jeroen Nijland (Director-General of the Regulatory Reform Group).

Mandelkern Group on Better Regulation, Final Report, 13 November 2001. OECD (1997) Regulatory Impact Analysis: Best Practice in OECD Countries, Paris; OECD (2005) APEC-OECD Integrated Checklist on Regulatory Reform: Final Draft, OECD, Paris. European Commission, Communication on 'Impact assessment', COM(2002) 276 final; European Commission, Communication on 'Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission', COM(2002) 704 final; Information note from the President to the Commission, Enhancing quality support and control for Commission Impact Assessments, The Impact Assessment Board, 14 November 2006; European Commission, 2005/2006 IA Guidelines, SEC(2005) 791; European Commission, 2009 IA Guidelines SEC(2009) 92. Inter-Institutional agreement on better law-making (2003/C 321/01); Inter-Institutional Common Approach to Impact Assessment (IA), 2005.

These 'good practices' were first discussed at the second meeting of the 'Expert Advisory Panel' on 27 March 2009 and subsequently reviewed by the participants of the 'Focus Group' meeting on 8 to 10 July 2009.

CM International, Meirion Thomas, Report on the Focus Groups held in support of Audit task 08TR2203, August 2009.

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• 22 okt '09
  COM(2009)544 - Actieprogramma ter vermindering van de administratieve lasten in de EU - Sectorale plannen ter vermindering van de lasten en acties in 2009
  
  
  
• 8 okt '08
  COM(2008)614 - Consumentenrechten
  
  
  
• 2 jul '08
  COM(2008)426 - Toepassing van het beginsel van gelijke behandeling van personen ongeacht godsdienst of overtuiging, handicap, leeftijd of seksuele geaardheid
  
  
  
• 23 jan '08
  COM(2008)17 - Inspanningen van de lidstaten om hun broeikasgasemissies terug te dringen om aan de verbintenissen van de EG op het gebied van het terugdringen van broeikasgassen tot 2020 te voldoen
  
  
  
• 23 jan '08
  COM(2008)19 - Bevordering van het gebruik van energie uit hernieuwbare bronnen
  
  
  
• 23 jan '08
  COM(2008)16 - Wijziging van richtlijn 2003/87/EG teneinde de regeling voor de handel in broeikasgasemissierechten van de EG te verbeteren en uit te breiden
  
  
  
• 20 dec '07
  COM(2007)842 - Werking van de comités in 2006
  
  
  
• 19 sep '07
  COM(2007)529 - Wijziging van richtlijn 2003/55/EG betreffende gemeenschappelijke regels voor de interne markt voor aardgas
  
  
  
• 19 sep '07
  COM(2007)530 - Agentschap voor de samenwerking tussen energieregelgevers
  
  
  
• 19 sep '07
  COM(2007)531 - Wijziging van Verordening (EG) nr. 1228/2003 betreffende de voorwaarden voor toegang tot het net voor grensoverschrijdende handel in elektriciteit