EUROPEAN COMMISSION Secretariat-General. The REFIT PLATFORM secretariat MINUTES OF THE ELEVENTH REFIT PLATFORM STAKEHOLDER GROUP MEETING 29 JUNE 2018

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1 EUROPEAN COMMISSION Secretariat-General The REFIT PLATFORM secretariat MINUTES OF THE ELEVENTH REFIT PLATFORM STAKEHOLDER GROUP MEETING 29 JUNE 2018 Attendance: Chair: Ms Anne Bucher Stakeholder group: Mr Alanko; Mr Clarke; Ms Hanula-Bobbitt; Mr Hedström; Mr Hüther; Ms Kavrakova; Mr Loosen; Mr Meynent; Mr Oravec; Ms Pachl; Ms Pols; Ms Ronne; Ms Ronzitti; Ms Santiago Cid; Ms Toubeau; Mr Wagemakers and Mr Bennett (replacing Ms Duden) Secretariat: Ms Cipollone; Ms Gerolymatou; Ms Gómez López Excused: Mr Christensen; Ms Duden (replaced); Mr Falcioni; Ms Pereira; Mr van Straalen (resigned member) Key Actions: The secretariat will transmit 5 Stakeholder group draft opinions (Ref. X.3.a, X.12.a, II.3.b, XXII.8.a and XVIII.17.a) (Annex 1) -and a 6 th one (Ref.XI.7.a) proposed for adoption by written procedure on 12 July (Annex II)- to the Government group on 13 July 2018 for them to be discussed at the meeting scheduled on 25 October. [Post meeting note: action completed on 9 July]. The Secretariat will request EC Services to update the Policy context of opinions adopted by Stakeholder group on 29 June before they are transmitted to the Government group [Post meeting note: action completed on 2 July]. The Secretariat will send to Reporters pre-filled opinions on remaining submissions [Post meeting note: action completed on 3 July]. By 14 September 2018, reporters are requested to send to the REFIT Platform secretariat, the draft opinions they would like to discuss at the next Stakeholder group meeting on 26 October (based on the list in Annex 3 attached). 1

2 1. Adoption of the Agenda The Chair introduced the agenda for the meeting. The Chair indicated that the meeting would be dedicated to discussing 8 draft Opinions with 2 draft Opinions in the area of Financial Services (UCITS and Regulation of listed companies), 1 draft Opinion in the area of Chemicals (CLP), 1 draft Opinion on Horizontal issues (Interconnection), 2 draft Opinions in the area of Health and Food Safety (Medicinal products for human use and Registration of Food business operators) and 2 draft opinions in the area of Taxation (one-stop-shop for VAT regarding cross-border bus trips and Simplified VAT invoices). She continued by saying that members would be invited to agree on which of the remaining submissions they select to prepare draft Opinions for the 8th batch of Opinions. The agenda was adopted unchanged. 2. Work planning, discussion on draft opinions The Chair introduced the objectives of this session namely to (1) discuss the 8 draft opinions prepared by the reporters to be transmitted to the Government group for adoption in October and (2) to agree on the number of draft opinions for the next Stakeholder group meeting. Representatives of the Committee of the Regions indicated that in the absence of an agreed political position and in view of the technical nature of these opinions for which they lack adequate technical expertise, they abstained from contributing to opinions X.3.a, X.12.a and II.3.b. 2.1 Financial Services Undertakings for the collective investment in transferable securities Directive (UCITS) Ref. X.3.a The reporter (Ms Hanula-Bobbitt) introduced this submission from the Federation of Finnish Financial Services that refers to issues related to the European Markets Infrastructure Regulation (EMIR) and how it affects the directive on Undertakings for the collective investment in transferable securities (UCITS). It also relates to the use made of Central Clearing Parties (CCPs) 1. According to the submitter, although CCPs are advised under EMIR, UCITS restrictions make their use de facto compulsory. In particular, the submitter requests that the UCITS Directive is amended so that justified diversification requirements do not apply to counterparty risks that target CCPs. 1 A Central Clearing Party is a financial institution that takes on counterparty credit risk between parties to a transaction and provides clearing and settlement services for trades in foreign exchange, securities, options, and derivative contracts. More info 2

3 The reporter acknowledged that there could be certain inconsistencies resulting from different legal obligations under UCITS and EMIR but disagreed with the submitter and did not see merits in the proposal, especially taking into consideration the current ongoing work with the European Securities and Markets Authority (ESMA). The Commission explained that the European Securities and Markets Authority (ESMA) has been working since 2013 to analyse the impact of EMIR (i.e. the mandatory clearing obligation) on UCITS. On the basis of the various clearing arrangements offered by clearing members and CCPs, ESMA has been analysing the impact of default of one of these parties for the calculation of the UCITS counterparty risk limits (i.e. 10%/5%). In its opinion published in May, ESMA concludes that CCP risk is not similar to other bilateral counterparty risk. Thus, according to ESMA, the ideal solution to the problems identified is an amendment of the UCITS Directive at level 1 (similarly to the Federation of Finnish Financial Services' view). However, data and evidence are still missing; it is therefore advised to wait to the outcome of currently ongoing ESMA work. A partial UCITS review is foreseen to be launched in The Stakeholder group agreed to transmit this draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. Regulation of listed companies Ref. X.12.a The reporter (Ms Hanula-Bobbitt) introduced this submission made by the Finnish Chamber of Commerce that claims that listed companies are overregulated and requests the European Commission to initiate no further legislative work in this area without having undertaken robust impact and proportionality assessment. The reporter disagreed with the submitter and considered the submission is lacking quantitative evidence to support the claims. The Commission pointed out that the large majority of EU corporate governance rules applicable to listed companies in the European Union is a combination of legislation and soft law, including recommendations and corporate governance codes on a comply or explain basis; the focus of the EU corporate governance framework is on listed companies; with 5 Directives and a current proposal on gender balance for listed companies, they consider the regulation regarding listed companies is proportionate; the Commission is exploring ways to make SME Growth markets i.e. multilateral trading facilities, which are subject to a less stringent regulatory framework more attractive; as regards the reporting requirements, the Commission is carrying out a fitness check on public reporting obligations by companies. After slightly rewording its recommendation, the Stakeholder group agreed to transmit this draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. 3

4 2.2 Chemicals Classification, Labelling and Packaging (CLP) legislation (EC No 1272/2008) of massive metal mixtures Ref. II.3.b The reporter (Mr Alanko, in the absence of Mr Christensen) introduced this submission made by the Federation of Finnish Technology Industries that considers that metal alloys behave inherently in a different manner as their constituents would and their content criteria alone do not preempt hazards in the use of metal alloys. It proposes that CLP classification of massive metal alloys be accomplished using risk based criteria taking into account bioavailability and a new test method for alloys called bioelution (instead of that applied to simple mixtures) and requests a derogation of labelling under CLP for metal alloys mixtures. The reporter agreed with the submission and o Recommended the Commission to evaluate the main problems with the classification of metallic alloys and review the present rules either by changing current concentration limits to be based on real risk criteria or to extend the derogation of labelling to cover also classification; o Suggested that the Commission issues guidance on the interpretation of article in the context of the Circular Economy; o Encouraged the European Commission to support the efforts of the metal industry in developing the new bioelution test method. The Commission indicated that according to the CLP, manufacturers determine how to classify their substances and mixtures; currently the European metal industry federation (Eurometaux) is developing a new test method for alloys called bioelution. The Commission (DG ENV/DG GROW/JRC) is in favour of the application of the bioelution method and supports that these test methods are assessed by the European Union Reference Laboratory for Alternatives to Animal Testing (EURL-ECVAM) and if the assessment is positive, further developed at OECD level; an Experts group with industry, MS and EC follows up some MS are not in favour of the new test method; in parallel to the bioelution experts group, another EU group led by Eurometaux with the support of ECHA and the Commission has been set up to provide guidance on the interpretation of Article related to the labelling derogation of metals in massive form. The Commission agreed with The Federation of Finnish Technology Industries that the classification of metallic alloys should be based on true hazard. In the light of the discussion, it was agreed to slightly reword the recommendation in order to remove the specific reference to a bioelution test method (method with which the Economic and Social Economic Committee disagreed). The Stakeholder group agreed to transmit this modified draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. 2.3 Horizontal Interconnection Ref. XXII.8.a The reporter (Ms Pols) introduced this horizontal opinion which is meant to be a first opinion of a series of opinions on Interconnection. Others will follow with a different sectoral focus 4

5 to identify any lack of alignment due to insufficient attention to the issue of interconnection in the EU policymaking process. Further to the discussion at the Stakeholder group meeting on 20 March at which a very first draft of this draft opinion was presented by reporter and co-reporter (Ms Ronzitti), this draft has been further elaborated: it has been reworded and references to literature and available studies have been added. The submission indicates that a number of adopted REFIT opinions across policy areas indicate a certain interconnection between different sets of EU legislation that in practical situations may lead to administrative burdens and other unintended consequences. These unintended consequences resulting from the interaction between different sets of EU legislation can among other things be traced back to sectoral policy-making. A script was tabled at the meeting to explain the nature of the problem and highlighted that the problem does not lie on the rules themselves but in their interconnection (please see attached) XXII.8.a_Annex_FPo ls pdf The reporter and co-reporter have introduced examples of opinions in their field of competence i.e. COMP and would appreciate examples from other areas. Stakeholder group members are therefore asked to get back to the reporter with concrete examples of opinions having been adopted in their areas of competence in which overlaps are noted. Ms. Santiago Cid provided an example in the field of standardisation and engaged to get back with reporter and co-reporter. The Chair pointed also to cases of interconnection in the fields of Agriculture and Environment. A representation of DG REGIO gave some insights as how interconnection has been tackled in the new European Structural and Investment Fund (ESIF). The Stakeholder group agreed to transmit this draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. 2.4 Health and Food Safety Registration of Food business operators Ref. XI.7.a The reporter (Mr Loosen on behalf of Mr Christensen) introduced this submission made by the Finnish Commerce Federation which requests that the registration requirements under the Feed Hygiene Regulation (FHR) for retailers placing products of animal origin in the market is removed. The reporter recognised the concerns but disagreed with the submission. In his view, the submitter's concerns have already been addressed by the European Commission and therefore no additional action in the form of a revision of the FHR Regulation is needed. Moreover he pointed out that EC and MS are discussing a proposal for a "Guidance document on the implementation of certain provisions of Regulation 183/2005 laying down requirements for feed hygiene". 5

6 The Commission pointed out that in 2016, a consultation of stakeholders undertaken in the margins of the EU Platform on Food Losses and Food Waste, identified different administrative burdens that could potentially hamper the use of food no longer intended for human consumption as feed; one such burden is the "double" registration of establishments as food and feed businesses. In order to address the issue, the Commission has adopted in April 2018 a Commission Notice laying down Guidelines for the feed use of food no longer intended for human consumption 2. The guidelines (Chapter in particular) clarify that food retailers supplying an operator which will transform the food no longer intended for human consumption into feed do not require to be registered in accordance with FHR 3, unless the food business in question is a retailer directly delivering to farms which are not registered as specialised processors of food into feed. Moreover, the Commission and the Member States are also discussing a proposal for a Guidance document on the implementation of certain provisions of Regulation (EC) No 183/2005 laying down requirements for feed hygiene which aims to give further orientation on the implementation of the feed hygiene requirements regarding the registration of feed establishments, which will seek to address more comprehensively the issue raised in this submission. The Commission considered there is currently no need to revise the FHR in this regard. The reporter indicated that these companies, already registered as Food operators, are entitled to pass leftovers directly B2B but not B2C; to be allowed for the latter, the grocery would have to register as Feed operator. The Commission added that the main objective of the guidelines is to protect the feed chain and ensure traceability and responsibility for the feed safety; apart from this, in the new Waste Framework Directive, these leftovers are no longer considered as waste. The reporter (Mr Loosen) agreed to get back with Mr Christensen and Mr Alanko on this recommendation. Provided the recommendation does not change and the draft opinion is actually adopted by written procedure on 12/7, the Stakeholder group agreed to transmit this draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. [Post meeting note: On 6 July Mr Alanko confirmed the submitter's agreement after having double-checked with them the draft Stakeholder group recommendation. The reporters got the clarification they needed from the submitter and agreed to keep the Stakeholder group recommendation unchanged. Written procedure therefore closed on 6 July. Draft Opinion XI.7.a will be transmitted to the Government group]. 2 COMMISSION NOTICE Guidelines for the feed use of food no longer intended for human consumption (2018/C 133/02) 3 General registration requirements that might be relevant in relation to other activities performed by the operators will of course continue to apply, in particular Art 6 of Regulation 852/2004 on food hygiene, and Art 10(2) of Regulation 625/2017 on official controls of the food chain (not yet applicable). 6

7 Medicinal products for human uses Ref. XI. 9.a The reporter (Mr Loosen) presented this Draft opinion that covers a submission from the Finnish Government Stakeholder survey on EU legislation which proposes that Directive 2001/83 relating to Medicinal products for human use is turned into a Regulation in order to, among others, reduce administrative burden and enhance harmonisation. The reporter agreed with the submitter and called upon the European Commission to evaluate the Directive and explore the potential of re-issuing it as a Regulation with a view at reducing the administrative burden, lowering costs, harmonising legislation and improving the operation of the Internal market. The Commission pointed out that Directive 2001/83 has been subject to regular changes since its adoption in order to ensure that it remains fir for purpose by adapting it to scientific developments and new regulatory concepts. It is part of a broader EU acquis for human medicinal products that includes various pieces of legislation closely interlinked: some of these provisions are rather new and not yet applicable while others are going to be evaluated. Although implementation in some Member States is slightly delayed, this has led to no infringement procedure and the overall functioning of this legislation is good and no amendment is foreseen for now. The Commission underlined also the fact that changing the form of a legal instrument (moving from Directive to Regulation) should not be the sole driver for legislative changes. This draft opinion was already treated at the Stakeholder group meeting on 20 March and its adoption postponed as several members of the Stakeholder group agreed that the submission lacked substance. The reporter agreed to get back to the submitter to clarify these issues. Some members continued not to see the submission sufficiently substantiated. The reporter agreed to contact again the submitter and reword the recommendation. The Stakeholder group decided to postpone this draft Opinion to the next meeting. 2.5 Taxation VAT legislation in different EU Member States One stop shop for VAT issues regarding cross border bus trips Ref. XVIII.5.b The reporter (Mr Hedström) introduced this submission made by the Board of Swedish Industry and Commerce (NNR) which requests that a "One-Stop-Shop" for all VAT issues regarding cross border bus trips is put in place. This would alleviate the administrative burden bus companies offering a combined route over different countries face to fulfil all travelled through country specific VAT rules. 7

8 The reporter recognised the concerns and considered that the passenger transportation service industry would benefit from a simpler treatment of VAT. He suggested EC to propose a One- Stop-Shop that simplifies rules on VAT by letting the registration process take place in one Member State. The Commission pointed out that the VAT Directive 2006/112/EC has been amended in December 2017 (Dir 2017/455) in order to extend the scope of the One-Stop-Shop. As of 1 January 2021, any kind of service supplied to a non-taxable person in another Member State than the one in which the supplier is established can be declared and paid for in the One-Stop- Shop; this implies also that the bus company does only register in the MS in which it has established its business. Since this amendment has already been adopted, no further action is needed; when the service is rendered to a taxable person, the proposal for the definitive VAT system which was adopted by EC on 25/05/2018 deals also with the issue of a One-Stop- Shop and provides that a taxable person established in the EU but not in the MS in which this taxable person is liable for VAT, can make use of the OSS system. The Commission considered the suggestion to be useful but already dealt with through the recent Commission proposal for Business to Consumer (B2C) (already adopted) and Business to Business (B2B) supplies of services included in the adopted proposal on 25/5. DG TAXUD confirmed also that Dir 2017/455 and the current One-Stop-Shop adopted proposal avoid that the supplier registers in all countries through which the bus service is offered. For the reasons above, the Stakeholder group agreed that this submission is subject to Exclusion (issues being currently examined by co-legislators) and decided to issue no opinion. Simplified VAT invoices Ref. XVIII.17.a The reporter (Mr Hedström) introduced this submission made by the Board of Swedish Industry and Commerce (NNR) which requests that the limit of simplified invoices in Article 238 1a of VAT should be increased up to 1000 EUR. To support the concern, the reporter tabled an explanatory document (please see attached) XVIII.17.a - Simplified VAT invoices The reporter agreed with the submitter and called upon the European Commission to explore the potential of considering the limit of the simplified invoice is brought up to 1000 EUR. According to the reporter, not only suppliers of goods and services would benefit but also customers and SMEs in general. The Commission pointed out that o Article 238 has been the result of an amendment proposed by the European Commission aiming at reducing the burden of SMEs. This article allows 8

9 MS to increase the threshold from 100 up to 400 EUR or the equivalent in national currency, upon consultation of the VAT Committee; o the increase of this limit would need an amendment of Dir 2006/112/EC; o an evaluation of the VAT invoicing rules is currently taking place and is due to finish by the end of The issue of simplified invoices is also analysed; o an Open Public Consultation of the Evaluation has been launched on 13 June 2018 (it will be available for 14 weeks and 1 day, i.e. until 20 September 2018). NNR is invited to participate. The Stakeholder group agreed to transmit this draft Opinion to the Government Group for adoption at the meeting of the Joint group in October. 3. Work planning Preparation of the 8 th batch of Opinions The Chair informed members that 22 submissions remain to be treated, falling under the policy areas where the most remains to be done are (in decreasing order): Environment (10 submissions); Health and Food Safety (5 submissions); Agriculture (3 submissions); Competition (3 Submissions), Taxation (1 submission) and Horizontal topics (1 Submission). [Post meeting note: Reporters agreed on 5 July on the Exclusion of XVIII.18.a please see Annex 3 for more details]. These 22 submissions may result in 16 opinions. The next batch of Opinions to be prepared by the Stakeholder group will be discussed during the Stakeholder group meeting on 26 October and final draft opinions should be transmitted to the secretariat on 14 September. Some members indicated some submissions on which they would work (Annex 3). 4. Any Other Business and closing remarks Further elaborating on the information provided by FVP on the Better Regulation Stocktaking exercise, the Chair informed the members that the dedicated survey on the REFIT Platform (RP Survey) prepared by the Secretariat would be circulated shortly. [Post meeting note: RP Survey sent to REFIT Platform members on 3 July 2018]. The Chair invited members to share their views about the exercise by 20 Sept After that, the secretariat would compute the overall results and make them available by the end of September A Working group could present a summary of them to the platform at the end of October. The Chair asked members whether they would support this idea and would volunteer to join this Working Group. Mr Hedström, Prof Hüther, Mr Loosen, Ms Kavrakova, Ms Santiago Cid and Ms Pachl agreed to participate in the Working group. 9

10 As a next step, the platform could decide on this basis how to further proceed and explore the possibility of issuing an opinion to be presented by the Stakeholder group in Jan 2019 with a view at its adoption in March The opinion would be the contribution of the REFIT Platform to the Better Regulation Stocktaking exercise and also formalise its legacy. The Chair closed the meeting by thanking members for their commitment to the work of the Platform. 10

11 Annex 1: 5 Opinions adopted by Stakeholder group to be transmitted to the Government group Financial Services 1. Undertakings for the collective investment in transferable securities directive (UCITS) (submission X.3.a) ADOPTED 2. - Regulation of listed companies (submission X.12.a) ADOPTED Chemicals 3. Classification, Labelling and Packaging (CLP) legislation (EC) No 1272/2008 of massive metal mixtures (Submission II.3.b) ADOPTED Horizontal 4. Interconnection (submission XXII.8.a) ADOPTED Health and Food Safety - Registration of Food business operators (XI.7.a) WRITTEN PROCEDURE (12/07) Taxation - Medicinal products for human uses (submission XI.9.a) POSTPONED - VAT legislation in different EU member states One Stop Shop (submission XVIII.5.b) EXCLUSION 5. Simplified VAT invoices (submission XVIII.17.a) ADOPTED 11

12 Annex 2: Opinion (to be) adopted (DDL 12 July) by Stakeholder group by written procedure to be transmitted to the Government group Food and Health Safety 1. Registration of Food business operators (XI.7.a) WRITTEN PROCEDURE (12/7) [Post meeting note: On 6 July Mr Alanko confirmed the submitter's agreement after having double-checked with them the draft Stakeholder group recommendation. The reporters got the clarification they needed from the submitter and agreed to keep the Stakeholder group recommendation unchanged. Written procedure therefore closed on 6 July. Draft Opinion XI.7.a will be transmitted to the Government group]. 12

13 Annex 3: Potential draft Opinions for October (DDL 14 September 2018) List of submissions on which work has to be pursued or has not yet started. The Stakeholder group is invited to select some of these submissions and to prepare draft Opinions for the Stakeholder group meeting of 26 October 2018 (Deadline 14 Sept 2018) Total number of remaining submissions (22) leading to possible number of opinions (16) Agriculture (3) REPORTERS: Mr CLARKE 1. Animal related support (submission I.13.b) NEW 2. Compensation for late EU payment (submission I.17.a) NEW 3. Investment aid unit costs (submission I.18.a) NEW 29/6 Mr Clarke indicated he would liaise with Mr Falcioni and get back with Secretariat. Competition (3) REPORTERS: Ms POLS, MS RONZITTI and Prof. HÜTHER 4. State aid and Land Sale (submission V.6.a) 29/6 Mr Hüther indicated he would prepare a draft recommendation for October State aid and ESIF (submission V.8.a) 29/6 Ms Pols indicated she would prepare a draft recommendation for October Regional investment aid (submission V.9.a) 29/6 Ms Ronzitti indicated she would prepare a draft recommendation for October 2018 Environment (10) REPORTERS: Mr CLARKE & MR FALCIONI 7. WEEE (submissions IX.13.b-e) NEW 29/6 Ms Santiago indicated she would be willing to contribute 8. Environmental Liability Directive (ELD) (submissions IX.16.a-d) NEW 9. EU noise Directive (submission IX.17.a) NEW 29/6 Ms Santiago indicated she would be willing to contribute 10. Water Framework Directive (submission IX.18.a) NEW 29/6 Mr Clarke indicated he would liaise with Mr Falcioni and get back with Secretariat. Health and Food Safety (5) REPORTERS: Mr LOOSEN 11. Medicinal products for human uses (submission XI.9.a) postponed at 20/3 and 29/6 meetings 12. Revision of Directive 2001/83/EC, art. 10(5) on the Community code relating to medicinal products for human use (Submission XI.9.b) 13. The Hygiene Package (submission XI.16.a) 14. Plant protection products (submission XI.22.a) 15. Directive 2009/54 on Natural Mineral Waters (submission XI.25.a) NEW 29/6 Mr Loosen has already a draft recommendation for XI.25.a and indicated he would in principle be willing to work on the rest Taxation (1) REPORTERS: Mr HEDSTROM & Mr CHRISTENSEN Clear definition regarding Intermediaries (submission XVIII.18.a) 13

14 DG TAXUD has provided the policy context. In the light of the adoption by the Commission on 5 December 2017 of a proposal for an Implementing Regulation to the VAT E-Commerce package, where the definition of a marketplace intervening in the B2C supplies of goods is further elaborated, Exclusion would in principle apply. 29/6 Mr Hedström indicated he would be willing to work on this 5/7 Reporters agree on Exclusion due to ongoing work. In fact, an Implementing Regulation to the VAT E-Commerce package was adopted by the Commission on 5 December 2017; in it, the definition of a marketplace intervening in the B2C supplies of goods is further elaborated. Hence, since this is a case of legislation under preparation, that falls within the exclusion criteria of the REFIT exercise Horizontal (1) REPORTERS: 16. Implementation (submission XXII.9.a) Ms Ronzitti 29/6 Ms Ronzitti indicated she would try to prepare a draft recommendation for October 2018 Next steps In order to allow for enough consultation time: - 14/9 Deadline for Reporters to provide a first draft opinion; - 21/9 draft opinions are redistributed with updated Policy Context; - 3/10 Deadline for Reporters to provide a final draft opinion; - 5/10 Consolidated document with all draft opinions is circulated to the Stakeholder group 14