On 13 April 2016 the European Commission announced the new Interinstitutional Agreement on Better Law-Making, concluded between the European Parliament, the Council of the European Union and the European Commission. Chapter III sets out the three main instruments for better law-making: impact assessment, public consultation and ex-post evaluation of existing legislation.
Impact assessment
The three institutions agree on the important contribution that impact assessments make to improving the quality of Union legislation. Impact assessments are a tool to help the three institutions reach well-informed decisions and not a substitute for those decisions within the democratic decision-making process. Impact assessments must not give rise to undue delays in the law-making process or prejudice the co-legislators’ capacity to propose amendments. Impact assessments should cover the existence, scale and consequences of the problems identified and the question of whether or not Union action is needed. They should map out alternative solutions and, where possible, potential short- and long-term costs and benefits, assessing the economic, environmental and social impacts in an integrated and balanced way and using both qualitative and quantitative analyses.
The principles of subsidiarity and proportionality should be fully respected, as should fundamental rights. Impact assessments should also, wherever possible, address the “cost of non-Europe”[1], as well as the impact on competitiveness and the administrative burden of the different options, paying particular attention to SMEs (and the “Think Small First” principle), digital aspects and territorial impact. Impact assessments should be based on accurate, objective and complete information and should be proportionate as regards their scope and focus.
The Commission
The Commission will carry out impact assessments of its legislative and non-legislative initiatives, delegated acts and implementing measures which are expected to have significant economic, environmental or social impacts. The initiatives included in the Commission Work Programme will, as a general rule, be accompanied by an impact assessment. In its own impact assessment process, the Commission will consult as widely as possible.
The Regulatory Scrutiny Board
The Commission’s Regulatory Scrutiny Board will carry out an objective quality check of its impact assessments. The final results of the impact assessments will be made available to the European Parliament, the Council and national parliaments and will be made public along with the opinions of the Regulatory Scrutiny Board at the time of adoption of the Commission initiative.
The European Parliament and the Council
The European Parliament and the Council, upon considering Commission legislative proposals, will take full account of the Commission’s impact assessments. To that end, impact assessments should be presented in such a way as to facilitate the consideration by the European Parliament and the Council of the choices made by the Commission.
The European Parliament and the Council will, when they consider this to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their substantial amendments to the Commission’s proposals. The European Parliament and the Council will, as a general rule, take the Commission’s impact assessment as the starting point for their further work. The definition of a “substantial” amendment should be determined by the respective institution, which proposes this amendment.
The European Parliament, the Council and the Commission
The Commission may, on its own initiative or upon invitation by the European Parliament or the Council, complement its own impact assessment or undertake other analytical work it considers necessary. In doing so, the Commission should take into account all available information, the stage reached in the legislative process and the need to avoid undue delays in that process. In this context, the co-legislators should take full account of any additional elements provided by the Commission.
Each of the three institutions is responsible for determining how to organise its impact assessment work, including internal organisational resources and quality control. They will cooperate on a regular basis by exchanging information on best practices and methodologies relating to impact assessments, enabling each institution to further improve its own methodology and procedures and the coherence of overall impact assessment work.
The Commission’s initial impact assessment and any additional impact assessment work carried out by the institutions during the legislative process will be made public by the end of the legislative process and may, taken together, be used as a basis for the evaluation.
Public consultation, stakeholder consultation and feedback
Public and stakeholder consultation is integral to well-informed decision-making and to improving the quality of law-making. Without prejudice to the special arrangements applicable to Commission proposals under Article 155(2) of the Treaty on the Functioning of the European Union, the Commission will, prior to the adoption of initiatives, conduct public consultations in an open and transparent way, ensuring that the modalities and time limits of those public consultations allow for the widest possible participation. The Commission will, in particular, encourage the direct participation of SMEs and directly affected parties in consultations. This will include public online consultations. The results of public and stakeholder consultation will be communicated without delay to the co-legislators and made public.
Ex-post evaluation of existing legislation
The three institutions confirm the importance of the greatest possible consistency and coherence in the organisation of their work for evaluating the effects of existing Union legislation, including related public and stakeholder consultations. The Commission undertakes to inform the European Parliament and the Council of its multiannual planning of evaluations of existing legislation and will, to the extent possible, incorporate in that planning their requests for in-depth evaluations of specific policy areas or legislative acts. When planning its evaluations, the Commission will respect the time limits for reporting and review laid down in Union legislation.
In the context of the legislative cycle, evaluations of existing legislation and policy, based on efficiency, effectiveness, relevance, coherence and value added, should provide the basis for impact assessments of options for further action. In order to support those processes, the three institutions agree, where appropriate, to establish common reporting, monitoring and evaluation requirements for legislation, while avoiding overregulation and administrative burdens, in particular on Member – States. Where appropriate, such requirements can include measurable indicators as a basis for collecting evidence of the effects of legislation on the ground.
The three institutions agree to consider systematically the use of review clauses in legislation and to take account of the time needed for implementation and for gathering evidence on results and impacts. The three institutions also agree to consider whether the application of certain laws should be limited to a certain period of time (by including so-called “sunset clauses”).
The three institutions undertake to inform each other in good time before adopting or amending their own guidelines and instruments on better law-making (public and stakeholder consultations, impact assessments and ex-post evaluations).
[1] The “Cost of non-Europe” reports aim to examine the possibilities for economic gains and for achieving a „public good“ through common action at EU level. They seek to identify policy areas that could benefit from deeper EU integration, where the added value of action at EU level is potentially significant.