VNG-IPO Position. Concerning the consultation of the European Commission on the draft Impact Assessment Guidelines Better Regulation.

Transcription

1 VNG-IPO Position Concerning the consultation of the European Commission on the draft Impact Assessment Guidelines Better Regulation July 2008

2 Introduction On July 2 nd the European Commission published a consultation on the draft impact assessment guidelines. Municipalities and provinces are responsible for the application and enforcement of a lot of EU legislation. They are therefore often confronted with the practical consequences of EU policy. The knowledge and experience that we have gained in this field can prove a valuable contribution to draft guidelines that are both understandable and practical. In the Netherlands a project focusing on the reduction of local administrative burdens has yielded some interesting results that are mentioned below: Similar notions in different legislation have different legal definitions Rules with a different goal results in double and sometimes conflicting obligations Enforcement and implementation are an integral part of legislation. Enforcement and effectiveness are important The Vereniging van Nederlandse Gemeenten, the VNG (Association of Dutch Municipalities), represents 443 Dutch municipalities and the Interprovinciaal Overleg, IPO (Association of the Provinces of the Netherlands), represents the 12 Dutch provinces. The VNG and IPO appreciate the consultation of the Commission and want to seize the opportunity to present our response to the guidelines. We have read approvingly the guidelines on draft Commission impact assessments, as they concern a wide array of topics and their subsequent relation. We consider the impact assessment as a useful instrument for each legislator to mainstream and integrate its policies. Our practical observations in the national context can be applied to the guidelines of the European Commission. In this position paper we present our opinion. 1. Impact Assessment as part of a broader policy cycle of consultation and cooperation The guidelines still consider the impact assessment as a separate policy tool. In the description of the policy cycle the Commission clearly links the public consultation and the impact assessment. However, it is our opinion that nowadays the impact assessment is increasingly part of a continuous policy cycle that continues right through the cycle of negotiations, implementation, and eventually evaluation. Being a consultation the evaluation is itself often the start of a new policy cycle and a new impact assessment. Although good legislation requires constant maintenance, the involvement of the Commission does not seem to be adapted to this policy cycle. The timing of evaluation is not always in tune with the needs of stakeholders and revision of legislation is not always proposed at the right moment. An example is the directive 2002/91/EC on energy performance of buildings. Recently the Commission held a public consultation. The proposal of the revision of the directive is foreseen at the end of this year, while the implementation of the current directive into national law has only been finalised six months ago. The impact assessment is part of a broader policy cycle. The Commission s involvement in the policy process does not end when the proposal and impact assessment are published. The services of the Commission should be in permanent contact with the competent authorities in the member states at every level (national, regional and local). 1

3 2. The consultation process: results carry too little weight (Chapter 4) Consultation of stakeholders provides information about the practical application and enforcement of EU policy. These aspects will determine for a large part if the policy goal has been reached and therefore should play a central role any impact assessment. The exclusive right of initiative provides the Commission with the freedom to consult and subsequently use the results of its consultation to determine which policy options it deems necessary. However, it is our point of view that this freedom has its limits. According to chapter 4 of the guidelines consulting those who will be affected by a new policy or initiative and those who will implement it is a Treaty obligation (Protocol on the application of the principles of subsidiarity and proportionality). The annexes to the guidelines state that results of consultations should be taken into account when drafting an impact assessment. This requirement concerns mentioning the stakeholders that have been involved, what the results of the consultation were how these results have been used. We would like to ask the Commission to show us in the impact assessment how it has used the outcome of the consultation in its proposal. Municipalities and provinces are responsible for the application and enforcement of a lot of EU legislation and therefore important stakeholders when the legitimacy and the daily operation of the EU acquis are concerned. A practicability and enforceability test should be an obligatory part of every consultation and subsequent impact assessment. The practical experience of local and regional governments would be an integral part of the policy cycle and not the conclusion of the negotiations. Implementation, application and enforcement should play a key role in any impact assessment and subsequent proposal. A practicability and enforceability test should be included in each consultation and impact assessment. The European Commission should indicate how it has used the results of a consultation in drafting its proposal. 3. Consequences for national judicial systems / municipal and provincial autonomy One of the things that municipalities and provinces have to deal with is their role in the national constitutional make-up and municipal and provincial autonomy. Within the EU there is a wide variety of administrative, judicial and constitutional arrangements between national, regional land local governments. Too often legislation contains detailed requirements. The implementation of these requirements regularly infringes the above mentioned variety administrative and legal systems. Implementation needs a certain degree of discretionary power, which allows for a better connection with the national, regional and local situation. Chapter of the guidelines contains a general notion of the consequences of a proposal for national arrangements and legal systems. However, it lacks a specific obligation to take those arrangements and systems into account when drafting the impact assessment. We support the principle of proportionality as mentioned in chapter 3 (legal constraints). If clear uniform goals are needed on EU level (the purpose of a proposal), this does not mean that detailed EU procedures and other instrumental requirements are necessary as well (the application of the proposal). The recent proposal of the European Commission concerning renewable energy serves in this case as an example. 2

4 It contains detailed requirements to stimulate the use of renewable energy in buildings. These requirements prove to be contradictory to existing local and regional rules. This can all lead to problems in application and enforcement, while these local and regional serve the same purpose as the proposal of the Commission: stimulating the use of renewable energy in buildings. A better use of information from the member states en cooperation with all the administrative levels involved could identify and prevent problems with application of EU legislation in an early stage. At the moment these problems with the application of EU legislation have to be addressed during the negotiation phase in the Council and the European Parliament or even in the implementation phase. 4. Administrative burdens for public authorities VNG en IPO welcome the attention the Commission devotes administrative burdens for businesses, citizens and public authorities. Especially the administrative burdens for businesses are in the EU on top of the agenda. However, next to businesses local and regional public authorities experience administrative burdens in the implementation, application and enforcement of EU legislation. The Commission counts the costs that are incurred by public authorities among the economic consequences of a proposal. Chapters and acknowledge the costs of implementation, application, and enforcement of EU policy. The guidelines pose the proper questions and state also that timely consultation and involvement of stakeholders can raise public support and prevent problems. The consultation of public authorities involved and obligatory use of its results can reinforce the part of the impact assessment that deals with administrative burdens and costs for these authorities. 5. Reporting obligations Reporting obligations often result in considerable administrative burdens for regional and local authorities. The need for the Commission to gain knowledge of the practical effects of its rules and plans is understandable. Therefore many directives and regulations contain obligations for member states to provide the Commission with data about its application. In reality there is not always a clear link between the reporting obligations and the daily practice of application and enforcement. Reporting obligations can result in administrative burdens for authorities as well as for citizens and businesses. Apart from being burdensome and expensive they affect the acceptance of the rules involved. We therefore would like to stress the need for the Commission services to indicate what it will use the data for. The guidelines address the topic of reporting obligations on the very last pages and pose the proper questions. Nevertheless it is our opinion that some important aspects are omitted. The guidelines do not provide for solutions to keep the reporting obligations to an absolute minimum. At the same time there is no quantification of the costs of the reporting obligations. 3

5 In order to minimize the administrative burdens VNG and IPO would like to insert in the impact assessment an obligation to both qualify and quantify any reporting obligations that are part of a proposal. Furthermore an obligatory evaluation and publication of the reporting obligations should be part of the impact assessment and the subsequent proposal. A sunset clause in the proposal would provide for an automatic removal of reporting obligations that over the course of time have proven inadequate or obsolete. Finally current EU legislation does not stimulate proper enforcement and best practices. We would like to include incentives in EU legislation whereby excellent application and enforcement of EU legislation is rewarded with reduced reporting obligations. Reporting obligations often result in administrative burdens The European Commission should provide a better motivation and feedback on the reports used before inserting reporting obligations in its proposals. To minimise reporting obligations the impact assessment would have to both qualify and quantify the costs and administrative burdens involved. A sunset clause in the proposal would provide for an automatic removal of reporting obligations that over the course of time have proven inadequate or obsolete. We would like to include incentives in EU legislation whereby excellent application and enforcement of EU legislation is rewarded with reduced reporting obligations. 4

6 VNG and IPO The Association of Netherlands Municipalities (VNG) is the umbrella organisation of the Dutch municipalities. VNG represents and supports the local politicians and all persons employed by the Dutch municipalities. Together with its members, VNG stands for empowerment and quality of local government. VNG has a front office in the European House of Cities, Municipalities and Regions in Brussels and cooperates with many other organisations. It is a member of the Council of European Municipalities and Regions (CEMR, the European umbrella organisation of local and regional authorities) and of the worldwide organisation United Cities and Local Governments (UCLG). Association of Netherlands Municipalities PO box NL-2500 GK The Hague Tel. +31 (0) The Interprovinciaal Overleg, IPO (Association of Provinces in the Netherlands), is the umbrella organisation of the 12 Dutch provinces. It has an official outpost in Brussels: the House of the Dutch Provinces (HNP). The House of the Dutch Provinces promotes both the individual and the combined interests of the provinces at European institutions in Brussels. Association of Provinces in the Netherlands PO box NL-2500 BC The Hague Tel: +31 (0) Contacts: Caspar Sluiter Association of Netherlands Municipalities Caspar.Sluiter@vng.nl Gonnie Verbruggen Association of Provinces in the Netherlands GVerbruggen@ipo.nl