Committee on Budgetary Control WORKING DOCUMENT

Transcription

1 European Parliament Committee on Budgetary Control WORKING DOCUMT on ECA Special report 16/2018 (Discharge 2017): Ex-post review of EU legislation: a well-established system, but incomplete Committee on Budgetary Control Rapporteur: Brian Hayes DT\ docx PE v01-00 United in diversity

2 Summary The ex-post review of legislation is a key part of the Commission s Better Regulation policy. It is aimed at facilitating the achievement of public policy objectives at minimum cost and improving the benefit of EU interventions. In 2015, the Commission strengthened its better regulation policy by launching the Better Regulation Agenda. The ex-post review is a policy tool resulting in a document or set of documents presenting retrospective stocktaking of one or all aspects of an EU regulatory intervention, with or without evaluative elements. It condenses the following ex-post documents produced by the Commission: evaluation, review, fitness check and report of other kinds (transposition, implementation, application reports, etc.). In this context, the Commission launched in 2012 the Regulatory Fitness and Performance [REFIT] programme with the aim of ensuring that EU law is fit for purpose. This means that the benefits of EU law should be reached at least cost for stakeholders, citizens and public administrations and that regulatory costs should be reduced, whenever possible, without affecting the policy objectives pursued by the initiative in question. The aim of this audit is to provide relevant and impartial information on the current EU system of ex-post review of legislation. In the audit, the Court of Auditors assessed whether the EU system of ex-post review of legislation had been properly planned, implemented, managed and quality-controlled, thereby contributing effectively to the Better Regulation cycle. The audit covered ex-post reviews of legislation carried out between 2013 and 2016 by four directorates-general of the Commission (DG V, DG GROW, DG HOME and DG SANTE) as well as all legislation and ex-ante impact assessments within the remit of those directorates-general adopted between 2014 and The Court observed with regard to the evaluations that the Commission has designed a system, which is, as a whole, well managed and quality-controlled, thereby contributing effectively to the Better Regulation cycle. However, when it comes to reviews other than evaluations, the Court identified weaknesses. Both reviews and monitoring clauses are widespread used but lack common guidelines. It was only in 2017 that the Commission introduced the Better Regulation toolbox providing practical guidance on what to include in both monitoring and review clauses in draft legislation. Review clauses are widely used but frequently unclear on what the Commission should be looking into and what kind of product it would produce. In addition, the expected deliverables from the review clause are not always clear. It is essential to monitor the implementation and application of legislation in order to ensure that sufficient reliable and comparable data is available in order to carry out an evidencebased ex-post review of legislation. The Court observed in many cases the need to improve data collection by introducing or improving monitoring arrangements and the non-systematic inclusion of monitoring clauses in legislation. PE v /5 DT\ docx

3 The Court also observed an uneven execution and quality control of ex-post reviews. The Commission rarely explained to the co-legislators why ex-post reviews were delayed. There was no homogenous treatment of methodology and, although data limitations were recognised and corrective measures were taken, results are not yielded. The Court observed that evaluations and fitness checks are subject to systematic quality control, but other ex-post reviews are not. The Regulatory Scrutiny Board (RSB) was created as an oversight body but ex-post reviews were not within the scope of its competence. Overall, ex-post reviews are publicly available and accessible and the vast majority of them provide a clear conclusion and indicate next steps to be taken. However, the co-legislators seldom react to the Commission directly. Also, the ex-post reviews are not always used by the Commission when preparing ex-ante impact assessments. The inter-institutional agreement between European Parliament, Council and Commission on better law-making, which provides guidance on the review of existing laws, is not binding. Finally, the Court found that the rationale of the REFIT programme is unclear, as are the criteria by which individual initiatives have been labelled as REFIT. Based on these findings and conclusions, the Court recommends: 1. Enhancing the inter-institutional agreement on better law-making a) In the context of the existing inter-institutional agreement, the Commission, in cooperation with the European Parliament and the Council, should develop an interinstitutional vade-mecum on review and monitoring clauses containing: - a taxonomy of possible outcomes/ex-post reviews that can be requested; - guidance on indicative timing for each type of ex-post review; - guidance on drafting monitoring clauses both for EU institutions or bodies and Member States. b) The Commission should propose that the European Parliament and the Council decide, in line with article 295 of the TFEU, on the legal form and means that will enhance the binding nature of a future inter-institutional agreement on better law making in order to maximise its practical effects. Target implementation date: December Better ensuring the quality of ex-post reviews by defining minimum quality standards for all ex-post reviews a) The Commission should define a set of minimum quality standards for ex-post reviews other than evaluations with a view to ensuring their quality across Commission services. b) The Commission should grant the Regulatory Scrutiny Board, as an independent reviewer, the right to scrutinise ex-post reviews other than evaluations. c) The Commission should incorporate in its minimum quality standards applicable to expost reviews with an evaluative element the requirement to include a detailed outline of the methodology used, a justification of its choice, and the limitations. DT\ docx 3/5 PE v01-00

4 Target implementation date: December Conducting a gap analysis of data collection and management capabilities The Commission should conduct, at the appropriate level, gap analyses of its ability to generate, collect and (re)use the data required for sound evidence-based ex-post reviews, and implement the corresponding actions best suited to each action. Target implementation date: June Ensuring respect for the Evaluate first principle a) The Commission should ensure that the evaluate first principle is systematically respected when revising existing legislation. Therefore, it should not validate a proposal the impact assessment of which is not based on previous evaluation work. b) The Regulatory Scrutiny Board should pay due attention to effective application of this principle. It should publish annually a list of those impact assessments which do not respect the evaluate first principle. Target implementation date: December Mainstreaming REFIT into the Better Regulation cycle The Commission should clarify the REFIT concept and mainstream its presentation and use to avoid the perception that REFIT is in some way separate from the standard Better Regulation cycle. Target implementation date: December 2018 The Commission accepts only part of the Court s recommendations. The recommendation 1b) is not accepted by the Commission, as under article 295 TFEU, there is not obligation for an inter-institutional agreement to be binding. The Commission partially accepts recommendation 2b), recommendation 3, recommendation 4a) and recommendation 5. The RSB accepts the Court s recommendation 4b). Recommendations by the rapporteur The European Parliament: 1. Welcomes the Court's report, and endorses its remarks and recommendations; 2. Notes that the Inter-institutional Agreement on Better Law Making (IIA-BLM) will start its 2018 monitoring exercise very soon and the High Level inter-institutional meeting will take place at the end of the year; 3. Notes that Court presented a very thorough and comprehensive piece of research (e.g. good sample size), and could be an example for future analysis in other areas of the IIA- BLM; also notes that the development of additional performance indicators to monitor the implementation of the IIA-BLM should be considered; PE v /5 DT\ docx

5 4. Is of the opinion that the active involvement and participation of the Court will benefit the IIA-BLM by enhancing its monitoring exercise; believes that greater use of Court s briefing papers may also contribute to achieving that objective; 5. Notes that the establishment of a joint-interinstitutional vademecum on monitoring and review clauses with guidelines and drafting clauses could be an improvement in the legislative scrutiny, as long as it would not undermine the co-legislators freedom of political choice; 6. Notes that common guidelines for ex post reviews could be considered in a future review of the IIA-BLM; 7. Notes the importance of setting a framework under which information on the transposition of EU law into national law should be made available to the Commission by the Member States. DT\ docx 5/5 PE v01-00