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Workers' Group

Extraordinary Meeting24 | June | 2015

Better regulation

Documents1. SUMMARY NOTE

2. OPINION REFIT (MEYNENT – MORDANT)3. OPINION SELF-REGULATION AND CO-REGULATION (PEGADO LIZ)4. PRELIMINARY DRAFT OPINIÓN EVALUATION OF EUROPEAN COMMISSION STAKEHOLDER

CONSULTATIONS (LANNOO)5. LINKS

Extraordinary Meeting Workers' Group: Better regulation

INT 750REFIT programme

(Meynent – Mordant)

1. Conclusions and recommendations

1.1 The EESC takes note of the state of play in implementing the REFIT programme established by the Commission. It is pleased that the Commission is seeking to improve the process and the instruments. With respect to the principle, it draws attention to its previous opinions1.

1.2 The EESC is in favour of reducing the constraints on small, medium and micro-enterprises (the SME test) and the public when the objective and purpose for which regulations were put in place can be achieved more simply. However, it draws attention to the fact that, to ensure sound public governance, relevant and essential data and information for establishing, monitoring and assessing the policies must also be available.

1.3 The EESC notes that the Think Small First principle is not intended to exempt micro-enterprises and SMEs from the application of the legislation and cannot be used for this purpose. On the contrary, its aim is to ensure that when legislation is drawn up, the fact that it will also apply to small enterprises is taken into account, without affecting its intended objective.

1.3.1 The EESC emphasises that the application of this principle must not conflict with the general interest, which means in particular that the public, workers and consumers must be protected against any risks they might incur.

1.4 The Committee is extremely concerned by the findings on the shortcomings of social and environmental impact assessments and the follow-up to consultations. It calls on the Commission to be more transparent and to give fully documented reasons why a particular measure or proposal is or is not to be submitted for impact assessment and/or an ex-post analysis.

1.5 The EESC calls on the Commission to provide integrated, balanced analysis of the economic, social and environmental dimensions. Indeed, it believes that the Commission's intended goals will only be reached if all of these aspects, and the concerns of all stakeholders, are taken into consideration.

1.6 In the EESC's view, smart regulation gives no dispensation from the obligation to comply with the regulations on protecting the public, consumers and workers, or with gender equality and environmental standards and must not prevent improvements from being made to them.

1 OJ C 48, 15.2.2011, p. 107, OJ C 248, 25.8.2011, p. 87 and OJ C 327, 12.11.2013, p. 33.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:327:SOM:EN:HTML




1.7 The EESC considers that smart regulation must comply with the social dimension of the internal market as provided for by the Treaty, in particular as regards the transposition of the agreements negotiated within the European social dialogue.

1.8 The Committee urges the Commission to take better account of the points of view expressed during consultations and to justify the way in which it has, or has not, taken them into consideration. More generally, it proposes that the Commission put these consultations on a more structured institutional and representative foundation by taking advantage of the resources of the representative consultative bodies that already exist at the European, national and regional levels.

1.9 The EESC intends to respond positively to the general call for cooperation with the social partners and civil society launched by the Commission. The Committee is ready to play a more active role in the programme, without prejudicing the other forms of European social dialogue.

1.10 The EESC is willing to endorse the ex-post analyses the Commission is proposing, if they are conducted after a certain time period has elapsed. Otherwise, REFIT would become a source of permanent legal uncertainty for the public and businesses.

1.11 In the Committee's view, the Commission has acquired the necessary internal expertise to improve the process. It will only endorse the Commission's proposal to create a new High Level Group for work to be done in future if this represents real added value.

2. Gist of the Commission document – Regulatory Fitness and Performance Programme (REFIT): Results and Next Steps

2.1 In line with its previous REFIT Communications2 and in connection with its Communications on Better Regulation and Smart Regulation,3 the European Commission notes that EU regulation plays a key role in underpinning growth and jobs.

2.2 The Commission emphasises that this has raised considerable expectations both from companies (which need the EU to ensure a level playing field and facilitate competitiveness) and the public (which looks to the European level to protect their interests, particularly in regard to health and safety, the quality of the environment and the right to privacy).

2.3 The challenge is to keep this legislation simple – not to go beyond what is strictly necessary to achieve policy goals and to avoid overlapping layers of regulation.

2 On EU Regulatory Fitness, COM(2012) 746 final and on Regulatory Fitness and Performance Programme (REFIT): Results and Next Steps, COM(2013) 685 final.

3 Third strategic review of Better Regulation in the European Union, COM(2009) 15 final; Communication from the Commission on Smart Regulation in the European Union, COM(2010) 543 final; Communication from the Commission on Smart Regulation – Responding to the needs of small and medium-sized enterprises, COM(2013) 122 final.


3. General comments

3.1 The EESC supports the general objectives of the Commission's REFIT programme and draws attention to its opinions4 which cover the Better Regulation programme and Smart Regulation, including the responses to the needs of small and medium-sized enterprises.

3.2 The EESC supports cutting the red tape and constraints on small, medium-sized and micro-enterprises and the public. The Commission should focus on quality rather than quantity and prioritise reductions in red tape, which has been seen to translate into a cost on businesses, a brake on their competitiveness and an obstacle to innovation and job creation. It goes without saying that when such steps are taken, consideration must be given to the aim and purpose for which obligations were put in place.

3.3 Whilst it is important to avoid any duplication of requests for information, to ensure sound public governance relevant and essential data and information for establishing, monitoring and assessing the policies must also be available.

3.4 The EESC shares the Commission's view that the need for legal certainty and predictability argue against quick fixes. It considers that any changes to the legislation must be carefully thought through and situated in a long-term perspective in order to ensure predictability, legal certainty and transparency.

3.5 The EESC notes that smart regulation gives no dispensation from the obligation to comply with the regulations on protecting the public, consumers and workers ("[It] should neither undermine workers' rights nor reduce their basic level of protection, especially in terms of occupational health and safety"5) and with gender equality and environmental standards. Smart regulation must allow for change and improvements.

3.6 In this respect, the EESC is pleased that the Commission has reconfirmed that the REFIT programme does not question established policy objectives or come at the expense of the health and safety of citizens, consumers, workers or of the environment. However, the EESC emphasises that it is not solely a question of not damaging citizens' health. It also entails ensuring that action is in the general interest and provides appropriate protection to the public against the risks they incur, whether or not these are connected with their health. Similar concerns were expressed by the European Council of 26/27 June 2014 and by the European Parliament at its session on 4 February 20146.

4 OJ C 327, 12.11.2013, p. 33, OJ C 248, 25.8.2011, p. 87 and OJ C 48, 15.2.2011, p. 107.5 OJ C 327, 12.11.2013, p. 33.6 European Parliament resolution of 4 February 2014 on EU Regulatory Fitness and Subsidiarity and Proportionality – 19th

report on Better Lawmaking covering the year 2011, which, as well as emphasising that legislation should be simple, effective and efficient, easy to understand, accessible, and deliver benefits at minimum cost, stresses that "evaluating the impact of new regulations on SMEs or on large companies must neither result in discrimination between workers on the basis of the size of the companies that employ them nor erode workers' fundamental rights, including the right to information and consultation, or their working conditions, well-being at work and rights to social security, nor must it hinder improvements to these rights or their safeguarding at the workplace in the face of existing and new risks connected with work".






3.7 The EESC considers that smart regulation must comply with the social dimension of the internal market as provided for by the Treaty, in particular as regards the transposition of the agreements negotiated in the framework of the European social dialogue.

3.8 In the Committee's view, REFIT must, as the Commission wishes, be an objective that is shared at EU and national level and with the social partners and other stakeholders. Accordingly, it is essential to build trust and ensure that no misunderstandings persist over the programme's goals, particularly since some of the measures that have already been announced or implemented7 have aroused the mistrust of some stakeholders and citizens.

3.9 Indeed, the EESC believes that the Commission's intended goals will only be reached if the concerns of all stakeholders are taken into consideration.

4. Implementation of the programme

4.1 The EESC takes note of the state of play in implementing the REFIT programme. The Committee is particularly pleased that the Commission is seeking to improve the programme's instruments by holding a consultation on impact assessments and on the consultation process itself. Indeed, it is crucial that the methodology behind these horizontal elements of the programme should not be open to criticism.

4.2 Ex-post analyses and impact assessments must not be placed so closely together that democratically adopted rules cannot be properly applied. The EESC is willing to endorse the ex-post analyses the Commission is proposing, if they are conducted after a certain time period has elapsed. In effect, ex-post analysis is only meaningful if a certain number of years have elapsed between the deadline for the transposition of a regulation into national law and the ex-post analysis in question. Otherwise, REFIT would become a source of permanent legal uncertainty for the public and businesses.

4.3 The EESC welcomes the fact that the Commission has drawn attention more than once to the need to involve the social partners, civil society and SMEs. The Committee notes that, hitherto, this has been a statement of principle rather than a systematic practice aimed at taking account of the proposals put forward.

4.3.1 Similarly, the EESC considers that is vital to involve and consult the bodies that represent civil society, the trade unions and SMEs, using the most appropriate channels.

4.4 With regard to impact assessments

The European Council of 26 and 27 June 2014 stated: "The Commission, the other EU institutions and the Member States are invited to continue the implementation of the REFIT programme in an ambitious way, taking into account consumer and employees protection as well as health and environment concerns".

7 This relates specifically to Reach, the environment, the acquis on health and safety at work, the protection of pregnant workers and better access to parental leave, occupational safety and health for hairdressers, musculoskeletal disorders, carcinogens and mutagens, tachographs, working time, part-time work, temporary work, information and consultation and information about work contracts, the labelling of food or products linked with the environment, instructions for the use of medicinal products and obligations concerning information about the cost of financial services.


4.4.1 The Impact Assessment Board reports for 2012 and 20138 identify the shortcomings of the process and the steps that have been taken to improve it.

The key points include:

many impact assessments fail to properly integrate views and report them in an unbiased way;

further efforts are still needed, particularly with respect to consideration of genuinely alternative options (clearer description of the options, the justification and proportionality of alternatives) and the provision of sufficiently detailed information on the likely impact of all approaches (and not only the preferred one);

the fact that the quality of the analysis for (positive or negative) social impacts remains a concern, as do the scope and depth of analysis of environmental impacts;

the need for ex post evaluations of existing EU legislation and programmes; commitment to an integrated assessment of economic, social and environmental impacts.

4.4.2 In its 2013 report, the Impact Assessment Board draws attention to the significant reduction in the number of Board opinions regarding the analysis of impacts on SMEs and micro-enterprises. Its explanation is that this reflects the Commission's commitment to take these effects into account, including by applying the so-called reverse burden of proof for micro-enterprises. The Impact Assessment Board stresses that the number of analyses of competitiveness impacts increased considerably in 2013 (by 30%) compared with 2012. However, once again, concerns were raised about the lack of transparency surrounding the opinions presented and critical views expressed during consultations and about the need to explain how stakeholders' concerns had been taken into account.

4.4.3 The EESC is pleased that the Commission and the Impact Assessment Board are committed to improving the quality of the process. It notes that preventive impact assessments on SMEs and micro-enterprises appear to be given greater consideration than in the past, which is in line with its previous opinions on the Small Business Act, the Think Small First principle and the SME test. The EESC stresses that these efforts must be pursued. It notes that the Think Small First principle is not intended to exempt micro-enterprises and SMEs from the application of the legislation and cannot be used for this purpose. On the contrary, the aim is to ensure that when legislation is drawn up, the fact that it will also apply to small enterprises is taken into account, without affecting its intended objective. The Committee considers that the application of these principles cannot justify using the size of an enterprise as the sole factor in determining the scope of a regulation and must not conflict with the general interest, which means in particular that the public, workers and consumers must be protected against any risks they might incur.

8 IAB Report 2012, IAB Report 2013.

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/iab_report_2013_en.pdf

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/iab_report_2012_en_final.pdf


4.4.4 Furthermore, the EESC is extremely concerned by some of the findings referred to above. It notes that the Commission is proposing that a series of other dimensions be addressed alongside the economic, social and environmental impact assessments9, this despite the fact that the Impact Assessment Board considers the quality of social and environmental impact assessments to be wanting in some cases. The EESC would therefore like assurances that the Commission has the means to conduct all these assessments simultaneously and that they will not be detrimental to the quality, balance, objectives, measurement tools and parameters that have been announced.

4.4.5 Lastly, the reason why some projects and proposals are not submitted for impact assessments, in particular in the ECOFIN sector (two pack, six pack), is not clear and this feeds into the perception amongst some stakeholders that the process is skewed towards the economic (and competitiveness) aspects above the other two pillars. As the Commission itself has stressed, the goal of simplification must be carried forward and shared by all and be based on robust and credible analysis.

4.4.6 The EESC calls on the Commission:

- to be more transparent and to give fully documented reasons why a particular measure or proposal is to be submitted for impact assessment;

- to ensure that the general interest is taken into account;- to take steps to ensure that all three dimensions (economic, social and environmental) are

taken into account in a more balanced way and to ensure the quality of the assessments at this level;

- to take better account of the points of view expressed during consultations and to justify the way in which it has, or has not, taken them into consideration.

4.4.7 The EESC is disappointed that the European Commission's communication does not make explicit reference to its role as a civil society advisory body which issues opinions on key aspects of EU legislation. It intends to respond positively to the more general appeal for cooperation which the Commission has addressed to the social partners and civil society and is therefore prepared to cooperate more actively in the drive to improve the process, either through consultation or by contributing expertise.

4.5 With regard to the consultation process

4.5.1 Although the Commission stresses the key role of stakeholder consultations in the process, their outcomes are not always taken into account. Moreover, the quality of the process is being undermined by the cumulative impact of the response rates to the open consultations

9 Complete list of all the reference documents pertaining to impact assessment on the Commission's website (in English): Commission Impact Assessment Guidelines (January 2009) Guidelines; Annexes 1 – 13; Other reference documents from the DGs Operational Guidelines to Assess Impacts on Micro-Enterprises (Secretariat-General + DG Enterprise and Industry); Operational Guidance for Assessing Impacts on Sectoral Competitiveness within the Commission Impact Assessment System – A "Competitiveness Proofing" Toolkit for use in Impact Assessments; Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments; Assessing Social Impacts; Assessing Territorial Impacts: Operational guidance on how to assess regional and local impacts within the Commission Impact Assessment System.

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/cswd_ati_en.pdf

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/cswd_ati_en.pdf

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/guidance_for_assessing_social_impacts.pdf

http://ec.europa.eu/smart-regulation/impact/key_docs/docs/sec_2011_0567_en.pdf




http://ec.europa.eu/smart-regulation/impact/key_docs/docs/meg_guidelines.pdf

http://ec.europa.eu/smart-regulation/impact/commission_guidelines/commission_guidelines_en.htm

http://ec.europa.eu/smart-regulation/impact/commission_guidelines/commission_guidelines_en.htm


launched by the Commission, questions about the representativeness of the respondents and the unrepresentative findings that sometimes result. The EESC wonders whether the explanation for these findings might not lie in the increasing number of consultations and the time, staff and resources that need to be deployed in order to provide an informed response. Furthermore, the questions are sometimes framed in a leading way, which may give rise to doubts about the objectivity and impartiality of the process.

4.5.2 "Consultation" is the cornerstone of legislative proposals that are of good quality and based on robust evidence. Early and sufficient consultations with businesses, particularly SMEs, and their representatives would allow decisions to be taken on the basis of factual analysis and the expertise and views of the stakeholders to whom the legislation is addressed and who will be involved in its implementation. The same goes for the various organisations representing citizens (workers, welfare recipients, consumers, etc.).

4.5.3 The EESC calls for absolute priority to be given to the social partners and intermediary organisations concerned. Consulting SMEs and consumers directly and individually has proven to be ineffective, anecdotal and unrepresentative. In addition, the organisations concerned must be given a genuine opportunity to take part in preparing consultations and drawing up questionnaires.

4.5.4 The EESC therefore wonders whether it might not be preferable to put these consultations on a more structured institutional and representative foundation by taking advantage of the resources of the representative consultative bodies that already exist and creating others, should this be appropriate or necessary.

4.5.5 The EESC proposes that another departure point for consultations should be the representative bodies that exist at both EU and national level. It also notes that, failing this, there are other consultation arrangements that could serve the same purpose.

4.5.6 The Committee recommends that use be made of the expertise and potential of the European federations of employers, businesses, trade unions and NGOs and that they, rather than private consultants, also be entrusted with the task of conducting the necessary surveys and studies.

4.5.7 In any event, the EESC is ready to assume its responsibilities in this context, without prejudicing the other arrangements for the European social dialogue.

5. Specific comments

5.1 The EESC believes that the REFIT programme should be at once ambitious and simple, clear and transparent.

5.2 A certain degree of confusion has resulted from the proliferation of titles for the various agendas and programmes (Better Regulation, Smart Regulation, Think Small First, etc.).


The ranking of these programmes and projects and the relationship between them should be clarified, so that the public understands to whom they are addressed.

5.3 The transparency of the procedures is being undermined by the increase in the number of bodies involved in the process and the channels for consultation and dealing with the proposals.

5.4 With the same concern for efficiency and transparency and in view of the mechanisms that already exist, including those at the European Parliament level, the EESC will only endorse the Commission's proposal to create a new High Level Group for work to be done in future if it is proven that this represents real added value. In the Committee's view, the Commission has acquired the necessary internal expertise to improve the process.

5.5 The EESC notes that the Commission believes that impact assessments should be carried out at all stages of the legislative process, including on the amendments introduced by the co-legislators. In a system where there are two co-legislators and where seeking comprise is the rule, it does not seem appropriate that one of them should have the last word on impact assessment (with the risk this would entail of distorting the rules on decision-making established in the Treaty).

5.6 Furthermore, the EESC also notes that the objective of the REFIT programme also encompasses the application of law in the EU. The Commission's impact assessment guidelines also allow for consideration of whether, in some instances, effective application of the existing legislation might not resolve the problem in question.

5.7 The EESC welcomes the efforts the Commission has made to support and monitor effective transposition of directives in the Member States. It stresses the findings set out in the 30th Annual Report on Monitoring the Application of EU Law10, which mentions that the areas most subject to delays and infringements are the environment, transport and taxation. The EESC is concerned that, for 2012, the problems were concentrated, essentially and in descending order, in the transport, health, consumers, environment, internal market and services sectors.

5.8 The EESC believes that indiscriminate exemptions, in any sector, would allow Member States to legislate "à la carte" at the national level, thereby adding to legislative complexity and legal insecurity and uncertainty in the internal market. The EESC notes that in its previous opinions it urged that, where appropriate, more systematic use be made of regulations as an instrument which, as well as providing better legal certainty, would partially resolve this problem.

5.9 The EESC draws attention to its previous opinions on "gold-plating" and smart regulation, in which it called for the quality of the legal texts adopted to be improved. It believes that

10 http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_30/com_2013_726_en.pdf .

http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_30/com_2013_726_en.pdf


further efforts need to be made in this direction to ensure the effective implementation of the policy objectives pursued by the European Union.

5.10 The Committee also notes that, in some cases, self-regulation or co-regulation might prove to be an effective means of prevention or useful complement to legislation duly framed in a broad legislative framework that is clear, well-defined and rooted in the principles of transparency, independence, efficiency and accountability.

Brussels, 10 December 2014


INT/754Self-regulation and co-regulation

(Pegado Liz)

6. Conclusions and recommendations

6.1 Self-regulation and co-regulation are mechanisms for regulating economic and social relations or commercial practices among the various economic stakeholders; they may be decided spontaneously or be imposed.

6.2 They should be viewed as important instruments for complementing or supplementing hard law, but not as an alternative to it unless there are "fundamental rules" providing a sufficient enabling basis.

6.3 Neither the EU treaties nor Member States' constitutions provide any such enabling basis.

6.4 In order for them to be a valid, recognised regulatory instrument in any legal system, their configuration and ambit must be defined by specific precepts that are legally binding and enforceable, whether at national or Community level, respecting at the same time the nature of these instruments, especially the voluntary agreement of the participants.

6.5 The parameters for recognising these regulatory instruments must be quite clear, as must the principles governing them and their limits as an accessory regulatory instrument in the legal system concerned.

6.6 Irrespective of the sectors involved, and without prejudice to the establishment of specific requirements in special cases, these general principles for both self-regulation and co-regulation should include the following:

a) Compliance with EU and international law, including international trade agreementsb) Transparency and publicityc) Representativeness of the parties concernedd) Prior consultation of the parties directly concernede) Added value for the general interestf) Non-applicability

- when the definition of fundamental rights is at stake- or in situations where the rules must be applied uniformly in all the Member States

g) Being subject to control by Community and national judicial bodiesh) Monitoring of the degree and success of their implementation, using objective criteria and

reliable indicators defined in advance and specified according to sectors and objectives.i) Checks and follow-up of their implementation by preventive measures or sanctions, in

order to ensure their effectiveness


j) Provision of a system of fines or other penalties, such as expulsion or loss of accreditation of participants

k) Possibility of periodic review in the light of changing situations, legislation and the aspirations of their signatories

l) Clear identification of financing sources.

6.7 The Interinstitutional Agreement (IIA) is an important step in defining the scope of self-regulation and co-regulation at Community level.

6.8 A review of it should:

a) identify a binding legal base;b) structure the IIA as a specific instrument under the terms of Article 295 TFEU;c) redefine basic concepts in line with the most recent guidance in the field, which

distinguishes self-regulation and co-regulation and recognises intermediate forms such as those promoted by EU recommendations and communications;

d) stipulate clearly that it must be possible for any ensuing disputes to be dealt with by extra-judicial dispute settlement systems.

6.9 The EESC also thinks that the agreement could usefully be supplemented by a recommendation to the Member States encouraging them to adopt the same principles and precepts at national level.

6.10 The EESC calls on the Commission, the European Parliament, the Council and the Member States to give priority to revising the IIA as proposed in this opinion, and to refer the proposed revision to it for an opinion.

7. Introduction: purpose

7.1 In various fields and in a number of national and international bodies, self-regulation and co-regulation have long been considered a vital supplement to regulation by other bodies, in order to ensure that a range of economic and social activities are properly regulated.

7.2 At EU level, it is the EESC - chiefly through its Single Market Observatory - which has been the most committed in defining and highlighting the role of self-regulation and co-regulation: it has referred to them in numerous opinions, especially those issued by the INT section11. To assist in its work, in March 2008 under the auspices of the SMO it set up a database on self-regulation and co-regulation which it has kept updated with the various national and EU experiences in this field.

7.3 The subject has in the meantime been dealt with in depth in academic circles, by eminent professors, especially in the field of contract law, corporate governance, social responsibility,

11 See: http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858 .

http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858


internet, e-commerce, product safety, professional services, the environment, advertising and the audio-visual sector in the single market.

7.4 However, what is still lacking is a political-legislative discussion to clearly define the legal framework that should govern the operation of these instruments at EU level. This should specify their legal nature, lay down conditions for their validity, define their areas of application, clarify links with hard law, and set down their limits in a consistent, coherent and harmonised framework.

8. Concepts and definitions

8.1 "Straight regulation" is generally understood as the body of rules created by states or governments, and produced by the traditional democratic systems of nation-states and their equivalents in supranational institutions based on democratic elections, such as acts passed by the US Congress or the regulations and directives of the European Union. It generally denotes legislation in the wide sense, laid down by the legislative authority or by the executive where so authorised; its provisions are accompanied by coercive means for enforcing them, if necessary by force, and by civil or penal measures to punish failure to comply with them ("hard law").

8.2 The concept of self-regulation has its origins in behavioural psychology. When applied to the economic sphere, it broadly denotes the adoption by economic operators of certain rules of conduct among themselves or in relation to third parties in the market and in society, adherence to which is agreed among themselves, without any external coercive mechanisms.

8.3 A range of types of self-regulation have developed, with a variety of more or less scientific classification criteria, more particularly:

a) Original or delegated self-regulation. Depending on the rules drawn up, this may simply entail a self-commitment on the part of the interested parties (also known as "private self-regulation"), or may instead involve a higher governing body (the state, regulatory and sectoral bodies, European Union) which sets certain binding parameters (also known as "public self-regulation");

b) Legal, customary or case-law-based self-regulation, whose source lies in law, particularly constitutional or supranational law (e.g. Community law), traditional "market practices and customs", today termed "good practice", or law reports;

c) National or transnational self-regulation (also known as "private transnational regulation"), depending on whether it only covers domestic matters or derives from agreements signed by private operators, businesses, NGOs or independent experts setting technical standards, interacting with international or intergovernmental organisations.


8.4 Lastly, co-regulation generally refers to a form of regulation of stakeholders that is promoted, guided or controlled by a third party which is either an official body or an independent regulatory authority, normally with oversight and monitoring powers and in some cases with the power to impose sanctions.

8.5 Although often considered to be synonymous, codes of ethics and codes of practice reflect two separate concepts which need to be kept distinct.

8.6 Both concepts involve a compilation of rules or standards deriving from self-regulation or co-regulation processes, and represent the most sophisticated method of translating the interested parties' agreement thereon; they aim to make the set of rules and the way they are applied transparent and accessible to all interested parties.

8.7 However, codes of ethics concern deontological standards for the exercise of certain professions whose practitioners are empowered to regulate themselves under national laws or international provisions governing the exercise of the free professions (doctors, lawyers, journalists and so on).

8.8 Codes of practice apply rather to the compilation of self-regulation or co-regulation provisions in the sense used in the present opinion.

9. The current EU legal framework for self-regulation and co-regulation

A) The concepts of "better lawmaking", "smart regulation" and "simplification"

9.1 At EU level, it was not until the March 2002 Lisbon European Council that the European Commission launched an initiative under the general heading of "Better regulation", based on the June 2002 Action Plan for Better Regulation12 and followed by the major interinstitutional agreement between the European Parliament, the Council and the Commission on better lawmaking13.

9.2 Better - and, if possible, less - lawmaking has been an abiding objective of single market policy14. It has been consistently supported by the EESC in various opinions15, with the aim of finding the best ways to make the legislative environment more user-friendly and understandable to business, workers, consumers and civil society organisations.

12 European Governance - A White Paper, COM(2001) 428 final, in OJ C 287, 12.10.2001, and the Communications on Better Lawmaking, COM(2002) 275, 276, 277 and 278 final of 5 June 2002.

13 On this question, it is useful to see the following articles by Linda A.J. Senden: Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet? (in Electronic Journal of Comparative Law, Vol. 9, 1 January 2005) and Soft law and its implications for institutional balance in the EC (in Utrecht Law Review, IGITUR, Vol 1, No 2, December 2005, p. 79).

14 See the SLIM project - Simpler Legislation for the Internal Market (COM(90) 559 final and COM(2000) 104 final). 15 See: http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858 .

http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858



9.3 The EESC has commented in detail on these issues, both in response to Commission proposals and also by putting forward its own innovative suggestions, such as The proactive law approach: a further step towards better regulation at EU level16.

B) The position of self-regulation and co-regulation in the current Community legal framework

9.4 Excepting the abovementioned Interinstitutional Agreement on better lawmaking, it must be acknowledged that the question of self-regulation and co-regulation was relatively absent from the Commission initiatives and concerns listed above17.

9.5 A number of important aspects of this text should be highlighted:

a) The reopening of the question of the interpretation of the principles of subsidiarity and proportionality now enshrined in Article 5 of the TEU and in its Protocol No 2, in the light of which the use of self- and co-regulation mechanisms should be approached.

b) Making these mechanisms part of the Better Regulation programme, with a view to "legislating less to legislate better".

c) The clear distinction between both of these mechanisms and the "open method of coordination" (OMC), the scope of which is specified in Article 6 TFEU.

d) Similarly, the clear distinction between these mechanisms with regard to what is usually known as soft law18, such as preparatory or information acts (e.g. white and green papers, action plans and programmes), interpretative acts such as the De Minimis Communication on competition law19, conclusions, declarations, resolutions and, lastly, recommendations and opinions, covered by Article 288 TFEU20.

9.6 However, by its nature, this "agreement" represents little more than an interinstitutional "undertaking" and does not in itself lay any legal obligation on third parties21. On the other hand, especially with regard to self-regulation, the Commission considers that the Community

16 OJ C 175, 28.7.2009, p. 26. 17 In particular the successive annual reports on monitoring the application of Community law, several reports on the strategy for

the simplification of the regulatory environment, and the frequent strategic reviews of the EU's Better Regulation programme. Noteworthy exceptions are the references made in the Commission working document - First progress report on the strategy for the simplification of the regulatory environment, Brussels, COM(2006) 690 final, 14.11.2006.

18 See the definition in Linda Senden, Soft law and its implications for institutional balance in the EC in Utrecht Law Review, IGITUR, Vol 1, No 2, December 2005, p. 79).

19 Doc. C(2014) 4136 final, 25.6.2014.20 The Commission is referring to instruments of this type, rather than self-regulation or co-regulation, in for example its

Communication on Tax policy in the European Union - Priorities for the years ahead (COM(2001) 260 final, in OJ C 284, 10.10.2001, p. 6), point 4.3 in particular.





institutions must abstain from such voluntary initiatives22and should simply verify whether the practices enshrined in it are in keeping with the provisions of the Treaty.

9.7 Regarding co-regulation, for which the IIA appears to express a clear preference, the institutions intend to promote agreements between stakeholders, defining the bounds of such agreements in legislative acts, verifying that they comply with fundamental legislative texts and with the rules governing their drafting, and monitoring their application. There are however no more than ten or so cases in which this intention has been borne out23.

9.8 In any event, the IIA does not effectively define a legal framework for the use by the EU of these mechanisms, except for:

a) the guarantee of their transparency,b) their non-application when fundamental rights or major policy options are at stake,c) or in situations where the rules must be applied uniformly in all the Member States.

9.9 At the European Parliament, this question has been highlighted in a number of resolutions, as well as in the abovementioned report by the Committee on Constitutional Affairs on the Interinstitutional Agreement on better lawmaking between the European Parliament, the Council and the Commission24.

21 As Linda Senden explains in Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet?, quoted above: "As regards the Interinstitutional Agreement on better law-making, its having at least binding force inter partes can be defended on the basis of two arguments. Firstly, it contains a number of rather compelling terms (‘agree’, ‘will’), which can be said to express the intention of the institutions to enter into a binding commitment. A confirmation of this intention can also be seen in its points 37 and 38 on the implementation and monitoring of the Agreement, providing, inter alia: ‘the three institutions will take the necessary steps to ensure that their staff have the means and resources required for the proper implementation of the provisions of this Agreement’ (point 38). Secondly, where ‘agreed acts’ are specifically intended to reinforce interinstitutional cooperation such as the Interinstitutional Agreement at issue here, it can be argued that there is a specific duty of cooperation which in conjunction with the duty of sincere cooperation laid down in Article 10 EC may actually lead to the conclusion that such an agreed act must be considered binding upon the concluding parties".

22 As clearly set out in the Commission's 2002 Action plan, "unlike co-regulation, self-regulation does not involve a legislative act" (COM(2002) 278 final, p. 11).

23 Including the following:

a) The Resolution of the Council and the Representatives of the Governments of the Member States meeting within the Council of 1 December 1997 on a Code of Conduct for business taxation.

b) Regulation (EC) No 80/2009 on a Code of Conduct for computerised reservation systems, OJ L 35, 4.2.2009, p. 47. For further examples, see: http://www.eesc.europa.eu/?i=portal.en.soc-opinions.32859 .

24 Rapporteur: Monica Frassoni (A5-0313/2003 of 25 September 2003).

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:035:SOM:EN:HTML


9.10 A wide variety of EESC opinions have stressed the advantages, but also limitations and tightly and clearly circumscribed objectives, of the use of self-regulation and co-regulation 25. The EESC's thinking on this subject may be summarised as follows:

a) Self-regulation must comply with the law and be supported by the law; it must be capable of implementation, verification and control; it must also be effective and provide clear channels for redress, particularly across borders.

b) Co-regulation combines the elements of legislation, more especially in its predictable and binding nature, with the more flexible regime of self-regulation. The challenge for co-regulation is to define, maintain and preserve policy goals while allowing for greater flexibility in the regulatory framework.

c) In a democratic political framework, private regulation must generally represent a development or application of public regulation, possibly replacing it in specific areas. This would include unwritten rules originating in customary practice or internal rules that the legislator and the public authorities intend, explicitly or implicitly, to enforce: codes of conduct for certain professions, for example.

d) The success of co-regulation and self-regulation depends on several factors: the account they take of the general interest, the transparency of the system, the representativeness and skill of those involved, the existence of assessment and supervision mechanisms and the effectiveness of the monitoring - including sanctions if necessary - and a mutual spirit of partnership between the parties concerned and the public authorities and society in general.

e) Co-regulation and self-regulation offer many advantages: they remove barriers to the single market, they simplify rules, they can be implemented flexibly and quickly, they free up legislative capacity and ensure the co-responsibility of the stakeholders involved.

f) They also have their limits, which depend primarily on effective monitoring and sanctions, certainty as to whether the parties subscribe to the codes of conduct agreed and total compatibility with all existing legal rules and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest.

25 Particular reference should be made to the positions held by the EESC in the following opinions:

- Simplifying rules in the single market (SMO), rapporteur: Bruno Vever (OJ C 14, 16.1.2001, p. 1)- Simplification (additional opinion), rapporteur: Kenneth Walker (OJ C 48, 21.2.2002, p. 130);- OJ C 112, 30.4.2004, p. 4 (rapporteur: Daniel Retureau)- Priorities of the Single Market 2005-2010, rapporteur: Brian Cassidy (OJ C 255, 14.10.2005, p. 22)- How to improve the implementation and enforcement of EU legislation, rapporteur: Joost van Iersel (OJ C 24, 31.1.2006, p.

52)and in particular the Information Report of 24 January 2005 for which Bruno Vever was rapporteur.








10. The role of regulation, self-regulation and co-regulation: definition and legal basis

a) The need for a legal basis

10.1 The European Union's founding text defines it as a community of law, reflecting the well-known concept of the rule of law. In a community of law, the validity of any rule depends on an enabling provision which must first be present in the founding text and subsequently in the various legislative acts that make up the regulatory pyramid.

10.2 The EU's founding text is now composed of the TEU and TFEU treaties, with equal legal value (Article 1(3) TEU) and the European Charter of Fundamental Rights, which is now an intrinsic part of it and also has the same legal value (Article 6 TEU). Any EU legal act must have its foundation or legal basis in a precept of this founding text, whether this concerns direct competence to legislate, or a delegation of that competence (delegated acts and implementing acts governed by Articles 290 and 291 TFEU).

10.3 The only competences accorded to the EU in the Treaty are those conferred on it by the Member States under the principle of conferral (Articles 4(1) and 5(2) TEU); these competences may be exclusive or shared (Article 2(1) and (2) TFEU), and their interpretation and application are limited by the principles of subsidiarity and proportionality (Article 5(3) and (4) TEU).

10.4 The EU may only delegate the exercise of its legislative competence when specifically authorised to do so, and may only delegate the powers conferred on it (Article 13(2) TEU).

10.5 The recognition by the EU institutions (Council, Parliament and Commission) of an "alternative" area to their legislative competence can only be understood as a "delegation" of the powers conferred. Accordingly, in order for this to be valid as "Community law", it is vital that this possibility of delegation be clearly provided for in the founding texts, although the relevant implementing arrangements and requirements can be left to secondary legislation.

10.6 In fact, no such legal basis can be found, either explicitly or implicitly, in the founding texts, including the European Charter of Fundamental Rights, not even with a very broad interpretation of Article 11 TEU.

10.7 Lastly, the IIA does not, of itself, constitute a source of Community law; nor does it authorise, with binding effect on third parties, any delegation of powers resulting from the IIA definition of the use of alternative regulation mechanisms "in suitable cases or where the Treaty does not specifically require the use of a legal instrument" (point 16).

10.8 Irrespective of the "legitimation" sought in various secondary law instruments and the more or less detailed definition of the principles and conditions that such mechanisms must respect in order to be recognised at EU level by the institutions with legislative power, what is


lacking is an enabling provision authorising these institutions to delegate their legislative power to such mechanisms, as a legitimate alternative to the Community regulatory instruments defined in the Treaties.

b) Specific instrument for defining self-regulation and co-regulation

10.9 A separate issue is whether, rather than treating such mechanisms as an alternative to EU legislative competence, they should be used as a means of completing or supplementing that legislation, within a legal framework established and defined in advance with total transparency.

10.10 The EESC considers that this framework must be defined as a general rule on the basis of the Treaties and the Charter of Fundamental Rights, and not left to discretion on a case-by-case basis for each secondary or subordinate legislative act.

10.11 This definition should be contained in a specific, binding interinstitutional agreement under Article 295 TFEU, with its application subject to possible scrutiny by the Court of Justice.

10.12 Additionally, and as it is up to the EU to "advise" Member States to follow the model established at EU level in their national legal systems for forms of self-regulation and co-regulation at national, regional or local level, the EESC considers that the appropriate instrument would be a recommendation setting out the principles and requirements laid down in the new IIA and advising Member States to adopt and implement them at those levels in their domestic legal system.

10.13 Lastly, the EESC considers that as the representative body of organised civil society (Article 304 TFEU), it should be consulted on the terms of this new agreement.

c) Redefining basic concepts

10.14 The new IIA should redefine the concepts, types and methods of self-regulation and co-regulation so that they more accurately reflect the actual situation.

10.15 In fact, the concepts of co-regulation and self-regulation found in the current IIA do not tally with any recognised legal concepts, and do not properly distinguish the two types of arrangement in the light of differences in the legal systems they come under.

10.16 Moreover, the two types defined in the IIA do not provide a full picture. For example, they do not cover certain arrangements which are the result of a combination of soft law (e.g. recommendations) or private agreements (e.g. round tables), or private transnational regulatory agreements.


10.17 Lastly, the IIA omits the role that Community regulatory bodies should have as an independent 'third party' not involved in the framing and negotiation of co-regulation agreements, as occurs with various regulators at national level in a number of sectors.

d) Basic principles and essential requirements

10.18 The future IIA should devote more attention to the clear and precise definition of a general set of basic principles and essential requirements which self-regulation and co-regulation mechanisms must meet in order to be recognised and/or recommended by the EU.

10.19 It should be noted that forms of self-regulation could be created at EU level outside the IIA framework, based on freedom of bargaining and of association, which are totally legitimate if they comply with the general principles of EU law but can only be recognised in the IIA framework if they meet the requirements laid down therein.

10.20 The current IIA already identifies some of these (as mentioned above) which should be kept; however, they could perhaps be better defined, especially as regards the cases identified as non-applicable when fundamental rights are at stake, in relation to major policy options, or in situations where the rules must be applied uniformly in all Member States.

10.21 However, theoreticians and the experience of various economic players have identified a whole series of other principles and requirements, which may be summarised as follows:

a) Self-regulation and co-regulation must be grounded in a general interest approach and must not simply be for the benefit of regulatory bodies.

b) They must always respect all existing legal and judicial requirements in Europe, starting with the objectives and provisions of the EU Treaty, the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights. They must also be compatible with international law and international trade agreements, especially the provisions laid down by the WTO.

c) They must be subject to judicial review by EU and national courts.d) They must be transparent, providing practical information that is accessible to all, without

difficulty or prohibitive costs, and their objectives should be stated clearly and unequivocally.

e) Their achievement should be measurable using objective criteria and reliable indicators defined in advance by the Commission by means of ex ante or ex post impact studies; these could either be carried out directly or entrusted to duly certified public or private independent assessors.

f) The representative nature of the partners should ensure that the rules agreed on are properly enforced and that the provisions are credible and effective. Their representativeness should be proportionate to the sector concerned, at inter-trade or sectoral level, as well as to the scope of the provisions adopted; if necessary, these can be assessed both quantitatively (number and proportion of members in the organisation) and,


above all, in terms of quality (the ability to act on the ground, to legitimise and then ensure compliance with the provisions adopted).

g) Prior consultation of the parties directly affected is also key to demonstrating the value and quality of the requirements, as well as their effectiveness.

h) Supervision, evaluation and follow-up of self-regulation and co-regulation mechanisms should involve preventive measures or sanctions, in order to ensure their effectiveness. This means:1. Mechanisms for self-monitoring and internal disciplinary measures, including ex ante

impact assessments26 2. Databases to ensure more effective monitoring27 3. Adoption of a certification label or quality mark28 4. Conclusion of national codes implementing the EU code of conduct29 5. Establishment of technical specifications in parallel with standards30 6. Drawing up practical guides on implementation31 7. Provision of a system of financial (fines) or other penalties, such as loss of

accreditation or expulsioni) Lastly, self-regulation and co-regulation mechanisms should be periodically reviewed and

adapted in the light of changing situations, legislation and the aspirations of their signatories.

10.22 In order to strike the requisite balance between legal certainty and flexibility, the Commission will also need to decide whether these structural elements of the mechanisms should be set

26 Here we should mention:

- a self-monitoring mechanism established by the EFCA to ensure implementation of the 1992 Code of Conduct for engineering firms and consultancies;

- the binding provisions of a code of ethics for EU lawyers, adopted in 1988 by the European Bar Association;- a disciplinary committee established by a code of conduct for asset managers to ensure its implementation and, if

appropriate, decide on sanctions such as warnings, reprimands or proposals to disbar; - the European Advertising Standards Alliance (EASA), set up in 1992 to coordinate and promote self-regulation in the

advertising industry;- monitoring by the BDI (Bundesverband der Deutschen Industrie) of the proper implementation of the agreement concluded

in 1995 in Berlin between government and businesses on the conditions and monitoring of the reduction of CO2 emissions in Germany, in accordance with the Kyoto Agreement.

27 One such database for engineering training establishments was set up in 1987 by the European Federation of National Engineering Associations (FEANI), in application of a European code of ethics which ensures the mutual recognition of training and qualifications; it has 30 000 members.

28 For example: the mark created by members of the European Insurance Committee to certify application of a European code of good practice for the internet; and security marks for e-commerce, following on from the code of conduct on distance selling.

29 As occurred with the implementation of a European code of conduct adopted in 1995 and amended in 2004, by the Federation of European Direct Selling Associations.

30 For example, the quantified requirements to reduce the energy consumption of washing machines, agreed on in 1999 by the European Committee of Domestic Equipment Manufacturers (CECED) in conjunction with the European Commission.

31 Examples are:

- the training standards established, by means of a guide, pursuant to a code of professional rules for European conservators/restorers;

- the user's guide for internet service providers drawn up in 2001 by the Milan Chamber of Commerce to promote good practice in this field.


out in the IIA itself or in an appendix, which would have the same legal value but could be easier to update, subject to a guarantee that all stakeholders would be consulted.

10.23 This general definition should still make it possible (as should be explicitly stated in the IIA) for each legislative instrument that provides for the use of these mechanisms to lay down specific conditions and requirements for the sector concerned, as is already the case in various regulations and directives referring to them.

e) Main priority fields of application

10.24 The EESC does not consider, in principle, that whole sectors should be excluded.

10.25 However, it recognises that there are some sectors which, for cyclical reasons, have to be treated more cautiously or made subject to more precise terms and conditions for the use of self-regulation and co-regulation. This applies in particular to financial services, public services and services of general interest, and certain areas which, although not directly referring to fundamental rights, involve the way these rights are exercised, e.g. consumer rights as mentioned in various EESC opinions.

10.26 The preferred areas mainly concern corporate governance and social responsibility and economic relations.

10.27 The EESC thus welcomes recent Commission initiatives such as the CoP platform (Pilot Community of Practice for better self- and co-regulation), based on the Commission communication on corporate social responsibility32, or the support for the agreement among major web companies for a safer internet, as well as those resulting from the e-commerce Directive33 and those indicated in various Community instruments.

f) Pros and cons

10.28 Previous EESC opinions have pointed out the benefits of self-regulation and co-regulation mechanisms. The main benefits noted in these are: removing obstacles to the single market, simplifying laws, flexible and speedy application, freeing up legislative circuits, and shared responsibility of participants.

10.29 However, they also have their limits, which depend primarily on effective monitoring and sanctions and total compatibility with all existing legal rules, and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest, as mentioned in these opinions34.

32 COM(2011) 681 final.33 Directive 2000/31/EC (OJ L 178, 17.7.2000, p. 1).34 Information report INT/204 of 24.1.2005 on the State of co-regulation and self-regulation in the Single Market, Rapporteur:

Bruno Vever.



g) Alternative dispute resolution

10.30 After a long and difficult gestation, extra-judicial dispute settlement systems are now regulated at Community level under the ODR Regulation and ADR Directive35, pending implementation in the various Member States.

10.31 Whilst theoretically not essential for the establishment of self-regulation and co-regulation mechanisms, the EESC recommends that the future IIA should stipulate as a conformity requirement that these mechanisms should always include provision for possible out-of-court alternative dispute resolution in accordance with the abovementioned Community instruments.

h) Role of the Community institutions, the Member States and civil society

10.32 All parties in the legislative process have specific responsibilities to assume for implementing these instruments.

10.33 Firstly, the Commission must take the initiative to open negotiations with the European Parliament and the Council on reviewing the current IIA along the lines set out here.

10.34 Civil society, and in particular the EESC, should be consulted on the terms of this negotiation, and the final text of the agreement should be referred to the EESC prior to its official adoption.

10.35 Member States should also express their views, through their parliaments and using the powers conferred by the Treaties for scrutiny of subsidiarity and proportionality, and national governments should undertake to apply the same principles in their domestic legal systems.

10.36 Lastly, the Court of Justice and national courts must be given the requisite powers and means for checking the legality of the measures adopted.

Brussels, 22 April 2015.

35 Regulation (EU) 524/2013 and Directive 2013/11/EU in OJ L 165, 18.6.2013, p. 1 and p. 63.



SC/040 Preliminary draft opinionEvaluation of European Commission stakeholder consultations

(Lannoo)

Preliminary remarks

The aim of this own-initiative opinion is to assess the existing methods of stakeholder consultation in order to provide realistic and constructive proposals (in consultation with the Commission), with a view to enhancing and monitoring the consultation process in the interest of all parties.

11. Recommendations

12. State of play: stakeholder consultation

12.1 Treaty provisions

12.1.1 The European Commission is required by the Treaty on European Union to carry out broad consultations with stakeholders in order to ensure that the EU's actions are coherent and transparent36.

Such consultations are very important for establishing public and socio-economic acceptance, for effective European legislation and for the active involvement of the public, companies and organisations in the European project.

12.1.2 "Stakeholder consultations" should be distinguished from the "citizens' initiative"37 and consultations carried out within specific frameworks, such as consultation of the social partners38 or of advisory bodies, such as the European Economic and Social Committee39.

12.1.3 In addition to their involvement in consultations in the area of social policy, the social partners also participate in consultations in the fields of consumer law, environmental law, etc. Through their active involvement in society, they have built up expertise in very diverse areas.

36 Article 24 of the Treaty on the Functioning of the European Union.37 Article 24 of the Treaty on the Functioning of the European Union.38 Article 154 of the Treaty on the Functioning of the European Union.39 Article 304 of the Treaty on the Functioning of the European Union.


12.1.4 The European Economic and Social Committee has been assigned a specific advisory role by the Treaties. When it comes to stakeholder consultation, the European Commission currently makes rather limited use of the activities and network of the Committee.

12.2 Guidelines for stakeholder consultations

12.2.1 The European Commission has established minimum quality standards40 for stakeholder consultations. These apply on a mandatory basis to consultations on Green Papers and on new initiatives subject to impact assessment. Under REFIT, the Commission has also announced that consultations are to be carried out for evaluations, fitness checks and the drafting of implementing measures and delegated acts41.

12.2.2 The European Commission has drawn up internal guidelines for the DGs on carrying out (online) consultations and publishing the results. The guidelines provide for, inter alia, publication of the explanatory memorandum on the topic in question, its content and the purpose of the consultation. Afterwards, the number of responses, the nature of the respondents and a summary of the findings should be published.

12.2.3 The guidelines with minimum standards for stakeholder consultation lay down 10 steps in the consultation process, divided into 3 phases: Define strategy

1. Define the objectives of the consultation2. Stakeholder mapping3. Select methods and tools4. Define the timing of the consultation and its duration

Run consultation5. Prepare consultation webpage6. Advertise consultation7. Acknowledge receipt of contributions

Analyse results8. Analyse the responses9. Report on the results and provide feedback10. Evaluate the consultation exercise.

12.2.4 The European Commission has at present 12 different methods for its policy-preparation consultations depending on the objectives and the target group. The 12 methods are as follows:1. Open on-line public consultation: to reach a large number of stakeholders, such

consultations are mandatory for impact assessments and Green Papers; 2. Studies: to gather figures, facts and opinions;3. Eurobarometer: to gather opinions directly from European citizens;

40 COM(2002) 704 as supplemented and amended by COM(2012) 746 and SWD(2012) 422.41 COM(2014) 368.


4. Conferences, public hearings, meetings with stakeholders: to consult the target group in an interactive and targeted manner;

5. Meetings, workshops, seminars with those directly involved: to gather specific interactive contributions from a particular target group;

6. Focus groups: for consulting a group of people with the same background on a specific topic;

7. Personal interviews: to collect information through direct consultations;8. European Commission expert groups: to gather specific contributions from experts;9. SME panels: to obtain direct feedback from SMEs; 10. Consultation of local or regional authorities;11. Questionnaires: in order to gather structured contributions;12. Online discussion forums: to receive feedback from a large number of respondents.

12.3 Implementation of the guidelines

12.3.1 Despite these guidelines and the large number of tools available, many stakeholders question the effectiveness of the current consultation system. Specific obstacles include awareness of consultations (information being easy to find on the relevant EU sites and publicising the consultations), the language and terminology, information on the results and, finally, the follow-up.

12.3.2 In addition, the quality and the approach of consultations vary significantly depending on the DG concerned and they lack coordination and an overall quality-assured approach and strategy.

12.3.3 Based on a sample, the EESC has carried out a check of the application of these guidelines in the first 25 consultations held in 2014. Participation in the consultations varies hugely. In only 13 consultations out of 25 is

the number of participants stated, the number of respondents ranging from 14 to 1 114. Half of them had fewer than 100 responses. In that case, representativeness is de facto poor, both geographically and in terms of the type of respondents. A higher number of answers ensures better geographical representativeness. However, a clear trend emerges towards a predominance of large Member States. The replies from organisations based in Brussels are classified as input from Belgium, while in many cases they are European federations or lobbying organisations that have no link to Belgium as a Member State.

As regards transparency and feedback of the results in only 6 of the sample of 25 consultations was a summary of the results published, which is less than a quarter. In less than half of the consultations were the responses also published. There was no further information provided on the follow-up to the issue.


13. New Commission – new working methods: prospects

13.1 In the political guidelines of the new European Commission, a more democratic European Union is one of the 10 priorities. The creation of a mandatory register of all organisations and individuals that lobby the European Commission, the European Parliament and/or the Council is a priority.

13.2 The new Commission has announced for the end of April a package of legislative measures aimed at better regulation. The measures are structured around 4 strands: better planning and programming, impact assessment, stakeholder consultation and evaluation.

13.3 As part of this, revised guidelines for stakeholder consultations will also be proposed. The consultation42 on the "Stakeholder consultation guidelines" was organised in this framework, to gather input from the ground.

14. Making consultations more effective: recommendations

The Committee considers that effective consultation and discussion procedures are crucial to better policies and better legislation and sees them as one of the key means of bridging the gap with the European citizen by more closely involving the public and civil society again in the European project.

The Committee has already made specific proposals here, inter alia in its opinions on consultation under Article 11 TEU, REFIT, etc.

14.1 Key elements of consultation

14.1.1 The Committee asks the European Commission to impose the existing internal guidelines as binding on DGs and to penalise non-compliance, just as the quality of impact assessment is subject to sanctions by the Impact Assessment Board.

14.1.2 The Committee thus calls for a coordinating unit under the direct management of the relevant Commission vice-president. This unit would also provide support to all DGs as regards the overall approach and strategy of consultations, the drawing up of quality requirements and procedures, quality guidance, information and follow-up.

14.1.3 The coordination unit would be assisted by an expert group, supplemented by representatives of the target groups at which the consultation is aimed.

14.1.4 A more systematic approach to consultations, with clear timetables and advance notice, should make it easier for stakeholders to prepare for their participation.

42 Consultation on the Commission's stakeholder consultation guidelines from 30.6.2014 to 30.9.2014: http://ec.europa.eu/smart-regulation/impact/planned_ia/consultation_2014/index_en.htm.

http://ec.europa.eu/smart-regulation/impact/planned_ia/consultation_2014/index_en.htm

http://ec.europa.eu/smart-regulation/impact/planned_ia/consultation_2014/index_en.htm


14.1.5 The Committee advises the Commission to draw up an inventory of best practices in the Member States, such as in France and the United Kingdom, as a source of inspiration.

14.1.6 The EESC recommends that the Commission publish an annual evaluation of its approach to consultations and the results thereof.

14.1.7 With the cooperation of the Commission, the Committee will monitor and assess the consultations in an appropriate observatory, and draw up an annual opinion on this matter, combined with a hearing, if necessary.

14.2 Stakeholder mapping

14.2.1 Properly determining the target group of a consultation is essential to obtaining the necessary information. The Committee is prepared to play a supportive role here in terms of identifying representative organisations within certain target groups. In this way, the Committee can also contribute to an EU-wide database of stakeholders.

14.2.2 A good geographical and target-group distribution should systematically be a particular focus.

It must also be ensured that particular attention is given to under-represented groups in "stakeholder mapping".

14.2.3 The Committee also recommends giving priority to those directly concerned in the weighting.

14.2.4 With a view to increasing the participation of stakeholders in consultations, the content of feedback after consultations is very important. Stakeholders should see results from their input and thus feel that they have had a real influence on the policy proposals, or receive an explanation as to why certain elements were not taken into account.

14.3 Methods and tools

14.3.1 The 12 consultation tools cited in the guidelines raise the question as to whether these could not be rationalised and reduced to essentially two instruments, in particular the written consultation and the interactive meeting.

14.3.2 The EESC could act as a "network of networks" in order to disseminate the written (online) consultation to the various stakeholders (just as the Committee of the Regions does as regards local authorities). With regard to interactive meetings, the EESC could act as organiser.

14.3.3 The questionnaire for the (online) consultation should be drafted in cooperation with civil society organisations of the target group(s) concerned and in the language of the target audience. Furthermore, the questionnaire should be tested in advance by a sample group of stakeholders.


14.4 Establishing the timing of the consultation and its duration

14.4.1 Under the guidelines, a time limit of at least 12 weeks should be set for responses to online consultations, and for interactive meetings 20 working days' notice should be given. The Committee recommends also taking into account the starting date of the consultation – not during holiday periods – and the availability of the consultation documents.

14.4.2 To give stakeholders an opportunity to prepare for their participation in consultations, the EESC deems it appropriate to provide them with sufficient information on the entire preparation process and the schedule of the (various) consultations.

14.5 Publicising the consultation

14.5.1 The EESC calls on the Commission to put in place an effective and sustained information campaign to publicise the consultations and encourage stakeholders to participate. The Committee could definitely also play a role here, and ask its members to disseminate information within their own networks.

14.5.2 Each consultation should be announced in a clear, appropriate and timely manner in the media of the Commission, the Member States and the relevant civil society organisations. The representatives of the Commission in the Member States should also be involved in this overall approach.

14.6 Analysing the results

14.6.1 When processing the results, organised civil society and the social partners should proportionately be given the greatest weighting in the target group.

14.7 Reporting on the results and providing feedback

14.7.1 The Committee proposes making publication of a summary report mandatory, accompanied by an overview of all the responses received. This will foster transparency.

14.7.2 In addition, the EESC advocates providing information – not least to the respondents – on the follow-up to the issue, such as amendments to the proposal, the next steps in the decision-making process, and so on.


15. The role of the European Economic and Social Committee

15.1 In the consultation process

15.1.1 With the cooperation of the Commission, the Committee will monitor and assess the consultations in an appropriate observatory, and draw up an annual opinion on this matter, combined with a hearing, if necessary.

15.1.2 The Committee can contribute to an EU-wide database of stakeholders, by identifying representative organisations within certain target groups.

15.1.3 The EESC could act as a "network of networks" in order to disseminate the written (online) consultation to the various stakeholders (just as the Committee of the Regions does as regards local authorities). With regard to interactive meetings, the EESC could act as organiser.

15.1.4 As part of an effective and sustained information campaign, the Committee could definitely play a role and ask its members to disseminate information within their own networks.

15.2 Under the cooperation agreement between the European Commission and the EESC

15.2.1 At different stages in the preparation, implementation and follow-up of a consultation, the EESC could act as an information channel between the European Commission and organised civil society.

15.2.2 For certain activities, such as interactive meetings, joint initiatives of the Commission and the Committee could be organised.

15.3 Under the inter-institutional agreement

15.3.1 In order to ensure that stakeholders are consulted when amendments arise during the legislative process, the institutions could call on the EESC to obtain feedback from the stakeholders concerned on substantive amendments to legislative proposals.

Brussels, ... 2015