Initial Report of the
Mandelkern Group on Better Regulation
1. Context: Implementing the conclusions of
the Lisbon European Council.1.1 A series of European
initiatives on regulatory quality
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Concern on
simplifying legislation was first expressed on a European level in
1985, when it was one of the conditions for the formation of the
single market. However, investigations into better regulatory
quality did not become more structured until the middle of the
1990s, in particular after the adoption of a protocol attached to
the Treaty of Amsterdam (1995), which set out the principles of good
regulations to be adhered to at European Community level. |
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At the same
time, the Commission undertook two initiatives designed to improve
regulatory quality in the areas within the single market (SLIM), and
to improve the administrative environment for small and medium sized
companies
(BEST). |
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It gradually
became clear that the best way of improving the "regulatory chain",
from the design of the regulation to its final application, was
co-ordinated action at both community and national level. The
conclusions of the Lisbon European Council "requested that the
Commission, the Council and the member states define a strategy by
2001 that would simplify the regulatory environment through
co-ordinated
action". | 1.2 The mandate of the High
Level Consultative Group is part of the vision of the Lisbon
conclusions
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In
Strasbourg, on the 7th November 2000, the Ministers in charge of
public administration decided to set up a High Level Consultative
Group on Better Regulation. This decision was completely in line
with the conclusions of the Lisbon European Council. |
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The
Consultative Group was given the mandate to "develop a coherent
approach and to make proposals" and to produce "an initial report"
within four
months. |
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In this
initial report the Consultative Group has started "to identify the
areas or actions open to co-ordinated action as regards regulatory
quality, by prioritising areas of immediate interest to citizens and
businesses". The principles and recommendations that follow
represent a summary of the main results of this work to date. |
2. Principles to be considered
Based on the experience of the
member states and an analysis of regulatory procedures at national and
European level, the High Level Review Consultative Group worked to
identify some general principles and to prepare, in priority areas,
concrete recommendations to give substance to these principles. It will
produce its final report on these and other areas these by the end of
2001.
2.1 The objective: To aim for
quality whilst helping comprehension and application of the
regulation
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Regulation is
essential to protect the interests of the vulnerable such as
workers, consumers and the environment. Better regulation does not
mean the unthinking removal of regulation in a given sector; rather
it is a question of achieving more effective regulation through a
combination of tools such as simplification, codification and impact
assessment. |
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The
principles of transparency, accountability and proportionality must
be applied to the formulation, implementation and monitoring of
policy options
chosen. |
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The
effectiveness of a regulation as a means of implementing public
policies does not only depend on clarity, consistency and approval
for the application of the regulation. It depends to a great extent
on whether citizens, businesses and administrations and other
relevant stakeholders can access the regulations, understand and
apply them without excessive burdens. |
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To obtain
better compliance, the regulatory quality objective requires
continuous efforts in terms of user consultation, ease of access to
the texts and appropriate reduction of the burden of procedures
imposed on citizens, businesses and the administrative services
themselves. | 2.2 The scope: To consider existing
regulations as well as new legislation
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"Regulation"
should be understood to include all rules emanating from the
legislative powers, as well as implementation rules for which the
responsibility lies with the executive
power. |
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New
regulations must meet the required levels of quality, but it is not
enough to meet the overall objective. Consideration must be given to
the number and consistency of existing regulations, which should be
tackled in order to reduce cumbersome processes, obsolescence or
contradictions |
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The objective
of better regulation therefore requires that existing regulations be
revised and that consistent sets of legislation be codified or
consolidated according to the principles of the relevant legal
system. | 2.3 The method: To introduce more
expert opinions and more consultation upstream of the regulatory
process
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To ensure
that the creation of regulations does not become an objective in
itself, aimed at underlining the intention to act on the part of the
administrations and Governments, effective methods must be drawn up
to assess the necessity and impact of the regulations, and also
their acceptance by the users involved. |
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These methods
have two main functions. |
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An expertise
function: designed to measure, as objectively as possible, the
impact and costs of the regulation, and also its appropriateness in
comparison with other types of action capable of achieving the
objectives set (for instance a contract) |
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A dialogue
function: to assess whether the regulation meets the needs of the
parties concerned and can be applied easily by the bodies
involved. | 2.4 The structures: to ensure the
effectiveness of the regulatory quality procedures
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Quality of
regulation is an important part of public welfare. As well as
numerous reasons of utility, it is a democratic virtue in itself and
needs to be the responsibility of particular bodies and/or
structures that are devoted to better regulation. |
3.
Recommendations
To give substance to the
principles outlined, the Consultative Group recommends that the
Commission, Parliament, Council and Member States as appropriate should
consider the following recommendations.
3.1 In the area of
simplification
Simplification should become a
general policy in the behaviour of Member State and EU
Institutions.
- Establishment of a rolling and targeted
"SimpReg" (SR) programme of simplification of existing European
regulation, with measurable results, extended to regulation beyond the
Internal Market and to regulation that impacts on citizens and on
public bodies that have to implement it as well as on business,
therefore covering the entire field of European regulation. The SR
program should be articulated into annual steps setting out clear
priorities and targets.
- At the EU level, further work needs to be
done to ensure that the process for adopting non-contentious proposals
for simplification is effective and carried out in a timely fashion
where appropriate, whilst protecting the institutional balance and the
democratic process at the national level. This should include the role
of the Member States to the extent of their executive
responsibilities.
Furthermore informal
coordination among the "sectoral" Councils should be considered for the
sake of simplification. 3.2 In the area of consolidation and
codification
- Consolidation or codification should be
undertaken both at EU and Member State level according to the
principles of the relevant legal system. Such work should be informed
by, and benefit from, continuing exchange and discussion of best
practice, which might work towards identification of a certain number
of common principles and methods.
3.3 In the area of
consultation
- A strengthened dialogue at an early stage
between the Commission and the interested parties and Member States
and consultation on a specific but preliminary text are important to
ensure that all the relevant consequences of a legal instrument are
established before the proposal is formally considered by the
legislative bodies. This dialogue and consultation should also include
the existing European consultative bodies.
- The proposal should whenever possible be
accompanied by extensive explanatory remarks, including the regulatory
impact assessment performed and the comments made during
consultation.
- In addition to the ordinary consultation,
the proposed regulatory act, the regulatory impact assessment and
other relevant documents should be made accessible on the Internet,
thus enabling interested parties, including vulnerable constituencies
such as SMEs and consumers, to make contributions.
3.4 In the
area of the extent of the impact of the regulation
- Regulatory impact assessment is an
ongoing, evolutionary process that informs the political choice and is
not simply the production of a one-off document. A regulatory impact
assessment should follow OECD guidance.
- A range of options, including alternatives
to pure regulation, should be considered for all policy proposals.
This consideration should include the views of stakeholders and the
principles of subsidiarity and proportionality.
- The Commission should continue to move
rapidly towards undertaking a regulatory impact assessment for all its
policy proposals with possible regulatory effects and this assessment
should be taken into account by the Parliament, Council and Member
States in the development of the proposal.
3.5 In the
area of structures
- Implementing the best regulatory methods
requires the involvement of bodies and/or structures that have an
appropriate level of autonomy, as well as objectiveness with regards
to the authorities that generate the regulations.
- These bodies and/or structures must also,
by virtue of their specific position in the administration, their
recognised authority and their expertise in managing regulatory
quality tools, be able to ensure adherence to the processes that
contribute towards improving regulatory quality.
- A balanced mix of decentralised and
centralised review is recommended within the executive. As a rule, the
basic regulatory review should be carried out by the Ministry (the
Directorate-General), specifically by the working unit that is mainly
responsible for drafting the bill in question. Generally, they have
the best know-how and expertise.
- Qualified and specialised staff is
required for regulatory review. Appropriate training needs to be made
available to secure the necessary cultural change and development of
expertise.
- Parliaments should be invited to take an
interest in the process of better regulation.
4. Subjects to be examined in the
future4.1 Linking European and national
procedures
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The
examination of national practices in terms of regulatory quality
shows that the member states and also to a certain extent the
European Union, in particular the Commission, have undertaken many –
often converging – initiatives in this area. We might collect these
examples in the final report. |
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The Group
must carry out an additional exercise to determine under what
conditions the methods for ensuring the quality of the regulatory
processes should be part of a coherent approach and in what ways
co-operation will be required from the structures implemented at
national and community levels. | 4.2 Defining a common method to
evaluate regulatory quality
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On the basis
of existing initiatives and examples, as well as its own
discussions, this Group has the mandate to develop a coherent
approach and to make proposals, in particular on specifying a common
method for evaluating the quality of regulation. It is capable of
creating greater mutual trust in the implementation of the
"regulatory chain" (including the different levels of
responsibility, both national and EU) and therefore fewer
requirements for the precision, and thus less complexity, of
community
regulation. |
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In accordance
with its mandate, and liasing with the group of Directors of Better
Regulation, the High Level Consultative Group will formulate
proposals on this subject. | 4.3 Preparation of the final
report
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The
Consultative Group will continue to work up the proposals for the
areas of better regulation it has identified, with a view to
agreeing a fleshed-out report on these five key themes. |
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Taking into
account discussions at the Stockholm European Council, the Group
will make every effort to submit in its final report, before the end
of 2001, a consistent set of proposals suitable for short-term
implementation in close co-operation with the Commission. |
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