Inhoudsopgave van deze pagina:
Council of the European Union
Brussels, 26 October 2018 (OR. en)
From: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director
date of receipt: 24 October 2018
To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of the European Union
No. Cion doc.: COM(2018) 703 final
Subject: COMMUNICATION FROM THE COMMISSION
THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY: STRENGTHENING THEIR ROLE IN THE EU'S POLICYMAKING
Delegations will find attached document COM(2018) 703 final.
Encl.: COM(2018) 703 final
Strasbourg, 23.10.2018 COM(2018) 703 final
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN
ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE
The principles of subsidiarity and proportionality: Strengthening their role in the EU's policymaking
The principles of subsidiarity and proportionality: Strengthening their role in the EU’s policymaking
I want our Union to have a stronger focus on things that matter, building on the work this Commission has already undertaken. We should not meddle in the everyday lives of European citizens by regulating every aspect. We should be big on the big things. We should not march in with a stream of new initiatives or seek ever growing competences. We should give back competences to Member States where it makes sense.
President Jean-Claude Juncker’s State of the Union Address 2017
This Commission concentrates on the issues that matter. It has put evidence-based policymaking and better regulation at the heart of its actions. It has proposed lean work programmes focused on President Juncker’s ten priorities. This Commission has emphasised the need to be big on the big things and modest elsewhere.
Subsidiarity and proportionality are core elements of the Commission’s better regulation agenda which underpins how the Commission prepares its policy proposals. This Commission has invested heavily in better regulation and it is now becoming part of the Commission's DNA. The lessons learnt from past experience and the views of stakeholders and civil society have been firmly placed at the centre of the policy-shaping process before new legislation is proposed. The Commission’s efforts have been recognised recently by the OECD which now ranks the Commission as a top performer 1 in terms of good regulatory practice. We do not rest on our laurels however. The Commission is taking stock of the package of reforms covering the entire policy cycle it introduced in May 2015. The aim of the reforms was to boost openness and transparency in the EU decisionmaking process, improve the quality of new laws through better impact assessments for draft legislation and amendments, and to promote constant and consistent review of existing EU laws. The stocktaking exercise will focus on refining and further improving our better regulation policy, including as regards the treatment of subsidiarity and proportionality.
This stocktaking takes place alongside the reflection that has been given to the future of Europe, on which subject the Commission presented a White Paper in March 2017. This presented five scenarios to illustrate how the Union might look in 2025 and launched a process with over 2000 public events aimed at allowing Europeans to have a say on the future of their Union. Commenting on this discussion in his State of the Union speech in 2017, President Juncker presented his vision of a more democratic Union based on freedom, equality and the rule of law. To take this work forward, President Juncker set up a Subsidiarity and Proportionality Task Force to take a critical look at all policy areas to make sure the Union acts only where it adds value and in particular to look more deeply at Scenario 4 “Doing Less More Efficiently” 2 according to which the Union
1 OECD Regulatory Policy Outlook 2018: https://www.oecd.org/governance/oecd-regulatory-policy-outlook-2018- 9789264303072-en.htm
2 Scenario 4 of the White Paper is entitled “Doing Less More Efficiently: The EU27 focuses on delivering more and faster in selected policy areas, while doing less elsewhere”.; https://ec.europa.eu/commission/white-paper-future href="https://ec.europa.eu/commission/white-paper-future-europe_en">europe_en
would focus its limited resources on a smaller number of activities in order to tackle its priorities more efficiently.
The Commission has already made progress in finding ways to deliver the Union's policies more efficiently by doing less at Union level and more at national level. Today more than 97% of State aid measures are implemented directly at national, regional or local level, based on clearly defined criteria, without needing prior approval by the Commission. The empowerment of national competition authorities has also enabled them to take around 85% of antitrust enforcement decisions since 2004. The proposed simplification of the Common Agricultural Policy recognises the diversity of local conditions across the Union and gives back responsibility to national authorities to deliver effective and tailored solutions to support agriculture and the environment.
Looking ahead, the approach that has been developed over the course of this Commission should be further embedded in the Commission’s activity. It should become part of an ongoing process of reflection on the extent to which it is for the EU to regulate or not citizens’ daily lives. With this objective in mind, this Communication sets out how the role of the principles of subsidiarity and proportionality should be strengthened in the EU’s policymaking. In particular, it sets in motion the Commission’s follow-up to the recommendations of the Task Force, as well as the means of highlighting where others need to act. The Commission intends to fine-tune the details as part of the better regulation stocktaking exercise in the first half of 2019, having heard the views of all parties who have an interest in better regulation.
2.T HE IMPORTANCE OF SUBSIDIARITY AND PROPORTIONALITY
The principle of subsidiarity goes to the heart of what the Union does. Under the Treaties, the Member States have conferred certain competences to the Union and the subsidiarity principle governs how they are used. In areas not falling within its exclusive competence, the Union shall only act if the objectives being pursued cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but by reason of the scale or the effects of the envisaged action, rather be better achieved at Union level.
The check on compliance with the principle is essentially a political question entrusted to the EU’s political institutions and the national Parliaments. It was with this in mind that President Juncker underlined in his Political Guidelines 3 the importance of strengthening the interaction with national Parliaments as a way also of bringing the Union closer to its citizens. Protocols No.1 and No. 2 of the Treaties set out the role of national Parliaments in the Union and empower them to check subsidiarity 4 . In particular, a Commission proposal for a legislative act must be transmitted to national Parliaments, which then have a period of eight weeks in which to submit a reasoned opinion and each national Parliament is allotted two votes. If their combined votes exceed a certain threshold 5 the Commission must review its proposal and explain why it maintains, changes or withdraws it. Where a simple majority of national Parliaments’ votes exists for a proposal subject to the ordinary legislative procedure, the Commission must justify why it maintains its proposal (should it not withdraw or amend it) and the European Parliament and the Council must consider
3 Political Guidelines for the next European Commission, by Candidate for the President of the European Commission Jean-Claude Juncker, Strasbourg, 15 July 2014.
4 See Article 12 TEU, Protocols No. 1 and No. 2 to the Treaty on European Union and the Treaty on the Functioning of the European Union.
5 “Yellow- card” corresponds to one third of all votes or one quarter in the area of freedom, security and justice (Article 76 TFEU). An “orange card” corresponds to a simple majority of votes.
whether it is compatible with the subsidiarity principle. If a simple majority of members of the European Parliament, or 55% of Council members, finds that the proposal breaches the principle of subsidiarity, the proposal will not be considered further. The Court of Justice adjudicates on actions based on the infringement of subsidiarity brought by the Member States (or notified by them on behalf of their national Parliaments) or by the Committee of the Regions where it has a right to be consulted under the Treaty on the Functioning of the European Union.
In practice, subsidiarity is about identifying the best level of governance to make and implement policies. The Union should do so only where it is necessary and where it delivers clear benefits over and above measures taken at national, regional or local levels. The potential added value of EU action and the cost to the EU of not acting (often referred to as the “cost of non-Europe”) are closely related concepts 6 . The political assessment of whether a particular EU policy instrument can be considered as adding value may change over time, depending on the political priorities of the moment.
Subsidiarity is often characterised as a choice between EU action or no action at all. This is not correct. Subsidiarity means leaving room for the most appropriate level of governance to assume its responsibility to act. Member States are also free to act where the Union does not and action may be necessary at all governance levels for a given policy. Generally, the Commission’s assessments will explore the EU dimension of the problems and impacts of each new initiative.
The principle of proportionality requires that the content and form of Union action must not exceed what is necessary to achieve the objectives being sought 7 . Protocol No. 2 sets out in more detail the proportionality requirements for draft legislation 8 . Any financial or administrative burdens which fall on the Union, national governments, local and regional authorities, and economic operators must be minimised and be commensurate with the objectives to be achieved. For the Commission, this means delivering our ambitious policies in the simplest, least costly way and avoiding unnecessary red-tape. It is about carefully matching the intensity of the proposed measure with what is to be achieved. Proportionality is a cornerstone of the Commission’s better regulation policy and its Regulatory Fitness programme. The Court of Justice is the ultimate arbiter of proportionality and may strike down acts it finds to have breached the principle.
Given the importance of the correct application of both principles 9 , and in view of the Commission’s close relationship with national Parliaments, the Commission publishes an annual report on both these matters. The 2017 annual report on relations between the European Commission and national Parliaments and the 2017 annual report on the application of the principles of subsidiarity and proportionality accompany this Communication.
3.S UBSIDIARITY & PROPORTIONALITY : K EY COMPONENTS OF BETTER REGULATION
Subsidiarity and proportionality are core elements of the Commission’s approach to better regulation which is built on the three fundamental processes of evaluation, impact assessment and stakeholder consultation. This Commission has invested significant resources to improve its
6 See for example "Mapping the cost of non-Europe 2014-2019"; http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2017)603239
7 Article 5 of the Treaty on European Union.
8 Article 5 of Protocol No. 2.
9 Article 9 of Protocol No. 2 requires the Commission to submit an annual report on the application of Article 5 of the Treaty on European Union.
approach. These changes have also had a marked improvement on the assessment of subsidiarity and proportionality:
– The Commission has increased the transparency, legitimacy and accountability of its work.
The “contribute to law-making” website allows stakeholders to participate fully in the
Commission’s work throughout the policy cycle 10 from providing feedback on initial ideas
to comments on the Commission’s adopted proposals and draft delegated and implementing
– Public consultations accompany major initiatives and the most important of these will be
available in all official languages.
– The Commission prepared the first ever integrated guidelines on better regulation in May
2015 and completed a major update of them in 2017. These guidelines and tools guide the
work of Commission staff across the entire policy cycle 11 and have revamped guidance on
how to assess subsidiarity and proportionality. They are published with the aim to facilitate
further engagement of the European Parliament, the Council and other interested parties in
the Union’s policymaking process.
– A new Regulatory Scrutiny Board 12 was established with three members recruited from
outside the European institutions. This independent Board checks the quality of impact
assessments and selected evaluations of existing legislation and makes public all its
opinions. In principle, a positive opinion of the Board on the impact assessment is needed.
Otherwise, the Commission needs to explain publicly why it has decided to proceed.
Weaknesses in the analysis of subsidiarity and proportionality are among the most frequent
causes of negative opinions 13 .
– The experts on the REFIT Platform 14 assist the Commission with providing solutions to
simplify existing legislation. The Platform has adopted over 80 opinions helped by a
representative from the Committee of the Regions.
– In April 2016, the European Parliament, the Council and the European Commission signed
a new Interinstitutional Agreement on Better Law-Making 15 . This covers all aspects of
better regulation including subsidiarity and proportionality, transparency of the legislative
procedure, the use of delegated acts and annual and multi-annual programming of political
10 “Contribute to law-making”: https://ec.europa.eu/info/law/contribute-law-making_en
13 See p.20 of the 2017 annual report of the Regulatory Scrutiny Board; https://ec.europa.eu/info/publications/regulatory-scrutiny-board-annual-report-2017_en
14 Set up in 2015, the Platform supports the simplification of EU law and reducing unnecessary regulatory burdens for the benefit of civil society, business and public authorities. It makes recommendations to the Commission taking into account suggestions from interested parties. https://ec.europa.eu/info/law/law-making-process/evaluating-and href="https://ec.europa.eu/info/law/law-making-process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/refit-platform_en">improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/refit-platform_en
The application of these better regulation tools has promoted more proportionate legislative proposals 16 . The effective application of EU law is also essential so that its intended benefits are delivered in practice. Impact assessment and evaluation help ensure effective implementation. They are complemented by a more strategic approach 17 to the implementation and enforcement of EU law, including through helping Member States to implement EU law correctly and by focusing infringement procedures on systemic problems where the Commission’s enforcement action can make a real difference.
The Commission is currently taking stock of how this better regulation policy is working and is actively seeking the views of all interested parties 18 . The stocktaking exercise will aim to identify whether and how our better regulation tools can be used more effectively and efficiently, including strengthening the role of subsidiarity and proportionality in our policymaking.
The Report of the Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”
The Task Force comprised members from the Committee of the Regions and national Parliaments. It looked at the role of subsidiarity and proportionality in the work of the institutions, the role of local and regional authorities in the EU’s policymaking and whether responsibility for policy areas or competences could be left or returned to the Member States. In just over six months the Task Force compiled a comprehensive and focused response to these questions drawing on the contributions of many stakeholders in the process. 19
The Task Force’s report presents nine recommendations together with a number of actions to help implement them. They cover the Commission’s policy preparation processes, the role of national Parliaments in scrutinising Commission proposals and the legislative procedure.
The key findings are:
– A new way of working is needed to make better laws based on a common understanding of subsidiarity and proportionality across the policy cycle.
– More “active subsidiarity” 20 is needed which gives a stronger voice to the local and regional authorities and national Parliaments and which promotes ownership of what the Union does.
– The Union should use its resources more efficiently and prioritise its actions but there are no reasons to re-delegate Treaty competences or entire policy areas back to the Member States.
The Task Force’s recommendations are set out in the Annex to this Communication. Many of the recommendations touch upon the practical application of better regulation. The Commission
16 For example, see Box 1 of Communication COM(2017) 651 final; Completing the Better Regulation Agenda: Better solutions for better results; https://ec.europa.eu/info/sites/info/files/completing-the-better-regulation-agenda href="https://ec.europa.eu/info/sites/info/files/completing-the-better-regulation-agenda-better-solutions-for-better-results_en.pdf">better-solutions-for-better-results_en.pdf
19 https://ec.europa.eu/commission/priorities/democratic-change/better-regulation/task-force-subsidiarity href="https://ec.europa.eu/commission/priorities/democratic-change/better-regulation/task-force-subsidiarity-proportionality-and-doing-less-more-efficiently_en#report">proportionality-and-doing-less-more-efficiently_en#report
20 The term “active subsidiarity” was used by the Task Force to denote an improved engagement with all stakeholders and local and regional authorities throughout the entire policy cycle. See pages 8-9 of the Task Force's report.
supports the analysis put forward by the Task Force on the need to strengthen the application of the subsidiarity and proportionality principles in the EU’s policymaking as part of the wider better regulation agenda. It is essential that the 41 national Parliament chambers, 74 regional legislative assemblies, the 280 regions and the 80 000 local authorities, who are at the forefront of implementing EU laws, are more fully engaged in the policy process. Active subsidiarity and a new way of working with these entities will help deliver policies that work while strengthening the understanding and ownership of what the Union does.
4.A CTIONS TO STRENGTHEN THE ROLE OF SUBSIDIARITY AND PROPORTIONALITY
The Commission has considered carefully the Task Force’s report and highlights the areas below where action is necessary.
4.1. Promoting a common understanding of subsidiarity and proportionality
While all actors involved in the EU’s policymaking must respect the principles of subsidiarity and proportionality, there is no common definition to support each institution’s work. Protocol No. 2 of the Treaties on subsidiarity and proportionality no longer contains the illustrative criteria that once were a part of a similar protocol annexed to the Amsterdam Treaty.
The Commission published the first ever integrated guidance on how it would implement better regulation in May 2015. This guidance covers the entire policy cycle including the assessment of subsidiarity and proportionality 21 . This guidance already incorporates the criteria originally contained in the Amsterdam Treaty. The Task Force advocated a tool to make assessments of subsidiarity and proportionality and to present the results in a structured way (the “grid”) 22 . The tool is annexed to this Communication. The Commission does not currently present the results of its assessments in the form of the “grid” but, in the future, the Commission intends to integrate the grid into its better regulation guidance and to use it as part of the impact assessments, evaluations and explanatory memoranda that accompany its legislative proposals. These proposals are transmitted to the European Parliament, the Council, the national Parliaments and (where relevant) the consultative committees at the start of each legislative procedure.
The Commission notes that the European Parliament and the Council both recognise the importance of subsidiarity in their rules of procedure and that both are committed to take full account of the Commission’s impact assessment during the legislative procedure 23 . The full benefit of the assessment grid can only be realised if it is used by all parties in the decision-making process. It is now for the European Parliament and the Council to decide whether additional, specific and systematic consideration should be given to the issues of subsidiarity and proportionality during the legislative procedure. In particular, the co-legislators often introduce substantial amendments to the Commission’s proposals, but the impacts of these amendments and concerns about subsidiarity and proportionality are infrequently assessed. The Commission calls on the co-legislators to implement
21 See Tool #5 on Legal base, subsidiarity and proportionality: https://ec.europa.eu/info/files/better-regulation href="https://ec.europa.eu/info/files/better-regulation-toolbox-5_en">toolbox-5_en
22 The “grid” contains a series of questions and issues to guide the analysis of subsidiarity and proportionality. It would be used by the Commission in a balanced way as part of the Commission's better regulation agenda building on the need to undertake analyses which are proportionate to the specific proposal in question.
23 §14 of the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making; OJ L 123, 16 April 2016, p.1-14. https://eur-lex.europa.eu/legal href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.123.01.0001.01.ENG">content/EN/TXT/?uri=uriserv:OJ.L_.2016.123.01.0001.01.ENG
more effectively their commitment to prepare impact assessments of their substantial amendments 24 . The Commission also considers that the national Parliaments should use the assessment grid presented above and adapted to their purposes if necessary. The Commission believes that this will give greater impact to their reasoned opinions but will not prevent them from expressing other concerns in their opinions not related to subsidiarity and proportionality.
It is the Commission’s view that there is scope in many cases for the views of national and regional Parliaments and those of local and regional authorities to be reflected better by each Member State during the legislative procedure. These administrative levels are closest to the actual implementation of legislation and have a wealth of experience to share. While it is for the colegislators to decide whether it is appropriate to involve representatives of local and regional authorities during the legislative procedure, the Commission considers that increased transparency of the legislative procedure would enable greater awareness and engagement of local and regional authorities and the public generally. The Commission supports the ongoing efforts to make the legislative procedure more transparent and accessible via improvements to EUR-Lex 25 and pursuant to the Interinstitutional Agreement on Better Law-Making (such as the joint legislative database). Follow-up of the recent case law of the Court of Justice 26 and the findings of the Ombudsman on the transparency of trilogues will improve transparency and help all interested parties to participate in the democratic decision-making process. The Commission stands ready to participate constructively in this work.
In any event, the Commission will continue to make the co-legislators aware of the feedback it receives about its proposals, including from local and regional authorities, in fulfilment of its commitment under the Interinstitutional Agreement on Better Law-Making.
The Commission intends to:
• Incorporate the grid for assessing subsidiarity and proportionality in its better regulation guidance and use the grid to present its findings in impact assessments, evaluations and explanatory memoranda.
• Use the grid as guidance in its communication with national Parliaments.
• Make more visible the feedback it receives about its proposals from local and regional authorities to the European Parliament and the Council in each legislative procedure.
4.2. Enabling national Parliaments to scrutinise more effectively
National Parliaments have the right to raise concerns related to subsidiarity during a period of eight weeks following receipt of the Commission’s proposal 27 . The Commission already excludes the
24 §15 of the in the Interinstitutional Agreement on Better Law-Making.
25 EUR-Lex is a website which offers easy access to EU law. Available in 24 languages, it includes treaties, legislation, international agreements, preparatory acts, legislative procedures, case law, parliamentary questions and many other types of documents; https://eur-lex.europa.eu/homepage.html .
26 T-540/15 De Capitani v Parliament; http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30ddfb6ef4af4df246c6a5689c7889c65e8f.e 34KaxiLc3qMb40Rch0SaxyNchb0?text=&docid=200551&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first &part=1&cid=100299
27 Protocol No. 2 of the Treaties; https://eur-lex.europa.eu/legal href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E%2FPRO%2F02">content/EN/TXT/?uri=CELEX%3A12008E%2FPRO%2F02
month of August when determining the eight-week deadline. The Commission believes that the period over Christmas and the New Year should also be excluded but cannot decide this unilaterally as any extension also affects the work of the European Parliament and the Council. The Commission invites the views of the co-legislators on this with a view to accommodate the wish of national Parliaments in a pragmatic way that does not affect relevant Treaty provisions.
In its annual report on subsidiarity and proportionality, the Commission presents those legislative proposals which have received the greatest number of reasoned opinions. However, the Commission agrees with the Task Force that it should give greater visibility to the views of national Parliaments. The Commission intends to prepare an aggregated response where a significant number of national Parliaments have raised similar concerns even where the threshold for a “yellow card” is not attained. The opinions of regional Parliaments with legislative powers sent directly to the Commission could also be reflected without affecting the primary role of national Parliaments in the operation of the subsidiarity control mechanism. The aggregated response would set out the Commission’s position on the issues raised and be transmitted to the European Parliament and the Council as rapidly as possible given the desire not to delay the legislative procedure.
The Commission encourages national Parliaments to consult regional Parliaments and to cooperate on EU matters. This may help give greater visibility to the concerns of regional Parliaments and to improve the assessment of subsidiarity-related issues, but the Commission recognises that such cooperation remains wholly a matter for the Parliaments in question.
The Commission intends to:
• Continue to discount the month of August when determining the 8-week period for national Parliaments to submit reasoned opinions.
• Explore with the European Parliament and the Council whether the Christmas/New
Year period could also be discounted as requested repeatedly by national Parliaments.
• Give greater visibility to the views of national Parliaments reasoned opinions by providing aggregated responses, where relevant, and targeting their concerns and identifying proposals raising most comments in its annual reports on subsidiarity and proportionality.
4.3. More active involvement of local and regional authorities
This Commission has opened up its policymaking processes to outside involvement in addition to its proactive engagement with socio-economic partners on developing and implementing legislation in the social and regional policy fields. The Commission is already actively consulting social partners including the Treaty-based two stage consultation in the social policy field. Roadmaps are published at the outset of each new initiative that explain what the Commission intends to do. These invite feedback and allow all interested parties to prepare for the various consultation activities that follow. Public consultations now accompany each major initiative and the questionnaires are translated into all official languages for those in the annual work programme. Draft delegated acts and implementing acts are also published online before they are finalised. The Commission also transmits to the co-legislators the feedback it receives from all stakeholders (including local and regional authorities) on its proposals at the start of the legislative process 28 .
28 Pursuant to §33 of the Interinstitutional Agreement on Better Law-Making.
Despite these advances, the important voice of local and regional authorities is often unheard in the early phases of policymaking. Local and regional authorities and regional assemblies are different to other stakeholders because they are at the forefront of implementing Union law. As such, greater efforts are needed by all to ensure that their experience and views are captured better in the policymaking process. In the context of the ongoing better regulation stocktaking exercise, the Commission will examine how to revise its questionnaires so that space can be dedicated to the issues of concern to local and regional authorities. The Commission will also improve how it reports on the views of local and regional authorities in its impact assessments, evaluations and explanatory memoranda. For its part, the Commission encourages local and regional authorities to sign-up to the Commission’s web portal 29 where all interested parties can contribute to policymaking. It will also publicise important initiatives on social media but organisations representing local and regional authorities should consider how they can promote the engagement of local and regional authorities.
The Commission intends to:
• Amend its better regulation guidance to highlight the importance of capturing the views and experience of local and regional authorities.
• Revise its public consultation questionnaires to include questions about issues relevant for local and regional authorities including regional assemblies.
4.4. Improving assessment and presentation of relevant impacts
Union legislation may have particularly significant effects at local and regional levels and for public authorities. The Commission has developed methodologies for territorial impact assessments 30 which have been tested on a number of legislative proposals since 2016. The Commission’s approach is to assess these impacts when they are relevant for the decision-making process and it is proportionate to do so (for example, if there are large variations between regions). The Commission intends to raise the importance of this issue in its guidance to its staff and, as indicated earlier, will present more clearly its assessments of subsidiarity (including EU added value) and proportionality in its impact assessments, evaluations and explanatory memoranda. However, it is not always obvious that such effects are likely or that the raw data exists to allow a detailed assessment to be made. The more active engagement of local and regional authorities in consultation processes is an essential element of improving the quality of assessments of territorial impacts.
The Commission intends to:
• Amend its better regulation guidance to highlight the importance of screening and assessing territorial impacts.
• Present more clearly its assessments of subsidiarity, proportionality and information about who is affected (and how) in its impact assessments, evaluations and explanatory memoranda.
4.5. Evaluating existing legislation from the perspective of subsidiarity
The mission of the Commission’s Regulatory Fitness Programme (REFIT) is to keep Union legislation fit for purpose and to simplify it wherever possible without weakening its intended objectives 31 . The REFIT Platform assists the Commission in this task. The Commission maintains a five-year rolling plan of all evaluations of existing legislation and each of these should assess the ongoing relevance, economic efficiency, potential to simplify and the EU added value of the legislation. The most important evaluations are also annexed to the Commission’s annual work programme.
The Platform’s work will continue until the end of this Commission. We will listen to the views of the Platform members and assess carefully the results of stakeholder consultation we launched on better regulation. However, we believe that there is already a convincing case to reshape the Platform to address in a more focused way the issues raised by the Task Force. For example, widening the focus of the Platform to address subsidiarity, proportionality, legislative density 32 and the role of local and regional authorities in implementing EU law in addition to its usual focus on simplification. We think that the composition will also need to change to include a greater presence from local and regional authorities by for example, replacing the experts from the Member States. Stronger links to the work and networks of the Committee of the Regions could also be considered. The establishment of a new Platform will, however, be for the next Commission to decide. In the meantime, the Commission welcomes the intention of the Committee of the Regions to establish a network of regional hubs to channel information from local and regional authorities into the policymaking process and looks forward to the results of the pilot project involving twenty regions.
The Task Force raised concerns about the use of delegated and implementing acts where the Commission is empowered by the European Parliament and the Council to adopt specific rules to implement EU law in a timely manner. While these acts are not scrutinised by national Parliaments as part of the operation of Protocol No. 2 of the Treaties, this Commission has significantly improved the transparency around delegated acts and implementing acts 33 . The draft legal text is placed online for four weeks before finalisation. All interested parties now have an opportunity to engage meaningfully with the Commission on the content of each draft act. When evaluating existing legislative acts, the Commission will in the future ensure that the REFIT programme looks more closely at the related delegated and implementing acts.
The Commission intends to:
• Ensure that when evaluating the existing stock of legislation, evaluations look more closely at subsidiarity, proportionality, legislative density and the role of local and regional authorities.
• Set out the changes in scope and composition of the REFIT Platform in order to
31 COM(2017) 651 final; Completing the Better Regulation Agenda: Better solutions for better results; https://ec.europa.eu/info/sites/info/files/completing-the-better-regulation-agenda-better-solutions-for-better
32 In respect of legislation, “density” relates to the detailed technical prescriptions agreed by the Legislator on how the objectives are to be attained which may influence the degree of discretion for national, regional and local authorities when implementing the legislation (see the paper from Professor Dougan presented to the Task Force meeting of 15 March 2018): https://ec.europa.eu/commission/sites/beta-political/files/dougan-notes-for-task-force href="https://ec.europa.eu/commission/sites/beta-political/files/dougan-notes-for-task-force-march-2018_en.pdf">march-2018_en.pdf
33 Register for delegated acts: https://webgate.ec.europa.eu/regdel/#/home ; Contribute to law-making web site: https://ec.europa.eu/info/law/contribute-law-making_en
reshape it and to address these issues in the stocktaking of better regulation.
• Ensure that relevant delegated and implementing acts are addressed systematically as part of evaluations.
5.C ONCLUSIONS AND NEXT S TEPS : THE CONFERENCE IN BREGENZ
This Commission has delivered a focused and prioritised programme of political initiatives. It has acted where necessary on the issues that really matter. It welcomes the Task Force’s important conclusion that the Union adds value in all areas where it acts. At some point, however, we – the institutions and the Member States – will have to confront the fact that we cannot continue to do more to tackle the growing challenges we face with the resources we currently have available. The Commission agrees, therefore, with the Task Force that activities will have to be prioritised and resources used more efficiently. One aspect is the early adoption of the Commission’s proposals for the next Multiannual Financial Framework that is essential to equip the Union with the resources it needs.
The Task Force has also proposed a new way of working based on active subsidiarity and a more dynamic engagement of all stakeholders and all government levels throughout the policy cycle. This would mark an important change in the European Union’s policy process bringing greater quality and legitimacy to the laws it adopts. The Commission has set out the changes it intends to make in response to the Task Force and now invites the European Parliament, the European Council, the Council, national Parliaments, national governments and local and regional authorities to consider how they will respond.
The Austrian Presidency will host a conference on 15-16 November in Bregenz, Austria entitled “Subsidiarity as a building principle of the European Union”. This conference will provide an opportunity for a meaningful dialogue on strengthening the role of the principles of subsidiarity and proportionality in the EU’s policymaking 34 . It could also provide a valuable input to the Leaders’ summit in Sibiu next year.
Issues for the conference in Bregenz
• All relevant institutions and bodies should clarify whether they will use the common assessment grid adapted to their needs to examine the subsidiarity and proportionality dimensions of Commission proposals.
• The Committee of the Regions representing local and regional authorities should consider how they can raise awareness amongst their members about the many opportunities to contribute directly to the EU’s policymaking. Other organisations representing local and regional authorities could also intensify their awarenessraising activities.
• The Committee of the Regions should establish the “regional hubs” to channel the experience of local and regional authorities more effectively into the EU’s policymaking.
• The European Parliament and the Council should examine the impacts and subsidiarity and proportionality dimensions of their substantial amendments.
• As requested repeatedly by national Parliaments, the European Parliament and the
Council should agree to discount the Christmas/New Year period from the 8-weeks allotted to national Parliaments to submit their reasoned opinions.
• The European Parliament and the Council should follow-up on the recommendations of the Ombudsman and recent case law in order to improve the
transparency of their proceedings and consider involving local and regional authorities during the legislative procedure.
• The European Parliament and the Council should step up efforts with the
Commission to create a joint interinstitutional database to improve the traceability of the legislative procedure.
• National authorities should examine how to involve local and regional authorities more effectively during the legislative procedure.
Following the upcoming European elections and the appointment of the next Commission, the European Parliament, Council and the Commission will exchange views and conclude on policy objectives and priorities 35 . The Commission looks forward to discussing the modalities for this exchange of views in due course as part of the three institutions’ implementation of the Interinstitutional Agreement on Better Law-Making.
35 Initiated by the Commission pursuant to §5 of the Interinstitutional Agreement on Better Law-Making.
|ANNEXES to the COMMUNICATION FROM THE COMMISSION THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY: STRENGTHENING THEIR ROLE IN THE EU'S POLICYMAKING
|Secretary-General of the European Commission
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|COM(2018)703 - Grotere rol voor de beginselen van subsidiariteit en evenredigheid bij de beleidsvorming van de EU