By Antonia-Evangelia Christopoulou
In April 2021, the European Commission launched its updated version of the Better Regulation Agenda with the view to ‘Joining forces to make better laws’. The Commission’s regulatory framework with the overarching aim of achieving better and simpler legislation which is based on evidence and created with the involvement of EU citizens and stakeholders has been amended in the aftermath of the COVID-19 pandemic and having taken into consideration the results of the Stocktaking exercise conducted in 2019. In this regard, the new Better Regulation Agenda specifically emphasizes on ensuring post-pandemic ‘recovery and resilience’ as well as addressing the shortcomings identified in the previous versions by introducing a set of amendments which aim at helping remove obstacles and red tape to new investments and minimize the costs introduced with new legislation, while ensuring sustainability and digital transformation.
The consultations held by the Commission before the adoption of its initiatives constitute an integral part of Better Regulation Agenda since its establishment in 2002 and a constitutional imperative according to the Article 11 para. 3 TEU, with the view to enabling citizens’ and stakeholders’ participation in the EU lawmaking, thus, enhancing evidence-based policymaking and democratic legitimacy. With regards to the new Better Regulation Agenda goals, the Public Consultations’ regime had to be amended so as to engage more citizens in the decision-making process, while at the same time not imposing ‘unnecessary burdens’. This is why the Commission officials launched the Call for Evidence as a ‘streamlined, inclusive and simple’ system for the provision of feedback and a number of other changes in order to address the previous critiques. The details for the implementation of these amendments are included in the new Better Regulation Guidelines and Toolbox which were published as of November 2021. In this post, an overview of the new Public Consultations’ regime will be provided (I) and a Preliminary Assessment of the New Regime will be made (II).
I. Overview of the New Public Consultations’ Regime
a. Call for Evidence
The Public Consultations’ regime, which was much modernized in the 2015 Better Regulation Agenda, aimed at enhancing the public engagement in the Commission’s decision-making procedure by providing to everyone the chance to express their views and share information. The setting was simple: everyone interested in a certain initiative could enter the Have your Say portal, register and write a comment in one of the EU official languages. It was provided that Public Consultations could be held throughout the policy cycle, namely at all four stages of the life of an initiative introduced by the Commission: roadmap, inception impact assessment, evaluation, fitness check. In the new Better Regulation Agenda, however, the primary goal seems to be the facilitation of the investments through the limitation of bureaucracy and, therefore, the configuration of a faster decision- making procedure. Therefore, as the Public Consultations’ regime has to align with the objectives of the new Agenda, it has to be amended accordingly, in order not to impede disproportionately the acceleration of the procedure. Hence, instead of consulting in every step of the way, the Commission plans to consult only once during the policy cycle of its initiative. But when would that be done?
In order to clarify at which point of the procedure it will consult and why, the Commission maintains the distinction between consultations and feedback, which is now gaining more importance. More precisely, the consultation is perceived as a formal process of collecting input and views from stakeholders that is done through responding to questionnaires (consultation stricto sensu); on the other hand, the feedback is perceived as a means to collect general views on a specific document in shorter deadlines. In this regard, the Commission perceives that a lengthy and detailed questionnaire is not necessary in all stages of the procedure and at some points it might as well overlap with the previous stages, but it wants to open up to the general public. Hence, it reduces the stages of the procedure where a consultation stricto sensu is required, maintaining it only for initiatives that are accompanied by Impact Assessments and for Evaluations of initiatives which are conducted alongside Impact Assessments (‘back-to-back’). In addition, a consultation stricto sensu is considered as recommended to Evaluations and fitness checks of broad public interest.
In case an initiative is not accompanied by an Impact Assessment, stakeholders can only participate by providing feedback based on the Call for Evidence document. (1) The Call for Evidence document is a short form that describes the prepared initiative and its main objectives, and illustrates the fulfillment of the Better Regulation requirements. The interested stakeholders are able to read it and provide some general comments on it- instead of answering to specific questions- for a period of 4 weeks. Additionally, the chance to provide feedback remains for the draft delegated and implementing acts and the legislative proposals adopted by the College of the Commissioners.
Consequently, it is evident that, in the spirit of facilitating new investments, the Commission seeks to accelerate the decision-making procedure and remove unnecessary burdens that lengthy and repetitive consultations might impose by consulting only once in the lifetime of each initiative and reducing the consultations stricto sensu only to certain initiatives that are perceived as more important or able to attract more public interest.
b. Addressing previous critiques
In the 2019 Stocktaking, the main problems of the Public Consultations’ regime were identified as the lack of knowledge on behalf of the EU citizens with regards to the participatory opportunities to the EU lawmaking and the lack of transparency in the way the Commission deals with the results of the consultations. Therefore, in its 2021 Better Regulation Communication, the Commission states its intention to correct some of the previous version’s shortcomings by facilitating contributions, reaching out further and responding to contributors.
With regards to facilitating the contributions, especially when it comes to the non-expert public, the Commission commits to employing more user-friendly language and to avoiding consultations on merely technical issues that did not attract much audience anyway. What is interesting, in this regard, is the language regime of the consultation documents and questionnaires: the Call for Evidence document is translated in all official EU languages and so are the questionnaires in initiatives of broad public interest, and in all other cases they are published at least in English, French and German.
Furthermore, responding to the criticism that the consultations’ regime is not reaching its full potential, attracting only the ‘usual suspects’(profit sector and some EU-funded NGOs), the Commission promises to reach out further by raising awareness through the appropriate means for every initiative (including social media) and trying to engage more with the scientific community.
However, the major critique the European Commission aims to address is the responsiveness to the contributions. One of the most important findings of the Stocktaking exercise was that contributors to the Public Consultations are not satisfied with the way the Commission reacts to their contributions. Specifically, it is not clear how the public feedback is used and echoed in the policymaking, which could be a demotivating factor for the stakeholders who dedicated time and resources to provide some valuable information to the Commission services. Accordingly, the Commission promises to increase its responsiveness by systematizing the manner in which it presents the consultation results to the public: it commits to publish a Factual Report within 8 weeks of the closure of the consultation, which shall contain the key issues raised and basic statistics on the participants that contributed, and a Synopsis Report (which can also be part of the Impact Assessment/Evaluation Report) at the end of all consultation activities. In this report, the input received will be summarized and analyzed and it will be explained whether and to what extent it has been taken into account by the policymakers.
II. Preliminary Assessment of the New Regime
Although the new Public Consultations’ regime has entered into force only a few weeks ago, some preliminary conclusions on the new features can already be drawn. To begin with, the improvements in comparison to the last version of Better Regulation Agenda can easily be identified with the most predominant ones being the effort to make consultations more accessible to the non-expert public and the attempt to enhance transparency and responsiveness towards the feedback submitted. The former will be achieved through the use of simpler questionnaires and user-friendly language as well as the avoidance of consultations on merely technical issues, while the latter will be illustrated by the clearer analysis of the results of the consultation procedure and better presentation to the public. Signs of the latter development can already be spotted in the last Impact Assessment Reports published at the end of the year: they provide a clear summary of the feedback received, distinguishing between the different stakeholders participating, and they explain what the preferred policy option is and how it was perceived by the contributors. Interestingly, the Impact Assessment Report accompanying a Proposal for a Regulation on Union guidelines for the development of the trans-European transport network includes an Annex with discarded policy measures, where the Commission explains why other policy alternatives where not preferred, answering the arguments of the different stakeholders.
Nevertheless, it is not yet clear whether the other major critique of the previous regime, namely the self- selection bias which leads to the monopolization of the procedure by the profit sector, will be effectively addressed. The idea is that contributing meaningfully to a consultation needs time and resources which are far more available to the profit sector than the non-profit one, let alone the individual citizens. The Commission seeks to bridge this gap by simplifying the procedure and the questionnaires and developing an early notification system in the Have your Say portal, so that anyone interested in certain policy areas knows the upcoming consultations and gets prepared accordingly. In addition, it is clarified in multiple occasions that the results of the consultations are not to be seen as statistically representative (there are alternative ways to achieve that, such as the European Barometer). However, it remains to be seen whether the changes to the regime will increase the interest and, thus, the participation of more non-profit sector contributors.
Furthermore, the absolute discretion of the Commission in the procedure is maintained, if not augmented. The consultation procedure remains a top-down one with the Commission officials deciding whether, when and how they desire to hold a consultation. In fact, now the chances to contribute are fewer, as the Commission intends to consult only once during the policy cycle, or twice in cases of broad public interest, even though it is not exactly clear how this distinction will be performed. (2) Moreover, it should be underlined that providing feedback opportunities does not have the same value as consultations stricto sensu, as in the feedback case the General principles and minimum standards for consultation do not apply.
All in all, even though the Commission commits to analyzing the feedback and responding to the contributors more efficiently, it is to be noted that while the questionnaires and Call for Evidence documents are published to at least three EU languages, the Synopsis Report is to be published only in English, which may facilitate the procedure but does so at the expense of the responsiveness the European institution wants to promote.
In light of the Articles 10 and 11 TEU, (3) the public should be able to communicate with the EU institutions and participate in the EU decision-making process. The European Commission declares its intention to empower the role of European citizens in the decision-making procedure. In order to do so, it has launched the major participatory project entitled Conference on the Future of Europe, and attempted to amend its own participatory regime aiming at implementing a more efficient and inclusive regulatory framework. Therefore, it has amended its Public Consultations’ regime, opting for small and useful adjustments to accelerate the procedure and correct previous oversights rather than adopting an ambitious change of the consultation setting as a whole (as proposed, for example, here or here).
Yet, it should be further observed whether the implementation of these changes will address the deficiencies that have long been identified as well as how they will fit in the general spirit of cooperation between EU institutions that is being promoted by the Commission. More specifically, one of the primary goals of the Commission in launching the new Better Regulation Agenda was to engage the European Parliament and the Council of the EU and other EU bodies such as the Economic and Social Committee and the Committee of Regions to the Better Regulation narrative. It is also worth remembering that after the original launch of the Better Regulation in 2002 and its major amendment in 2015, an Inter-institutional Agreement on Better Lawmaking by the three institutions has followed (in 2003 and 2016 respectively). For the time being, the conduct of consultations has been left to the sole discretion of the Commission, but it might need to be expanded at least in case of major amendments introduced by the co-legislators in order for the public involvement not to be discarded. It remains to be seen how ambitious the institutions will be in upholding public participation.
(1) A Call for Evidence document is also introduced when an initiative is accompanied by an Impact Assessment, in which case a Public Consultation runs in parallel for a period of 12 weeks. It might seem odd that, in case of consultations stricto sensu, a Call for Evidence is also launched, by it must be noted that the scope of each of the procedures differs: in the former the Commission intends to gather information from the various stakeholders and identify their views on different policy options, while in the latter it aims to explain its perception of the problem and its strategy to address it.
(2) In the 2021 Better Regulation Toolbox (p. 38), there is a guidance concerning the characterization of initiatives as ‘politically sensitive and/or important’, but it is not sure whether this corresponds to the differentiation that would be made by the Commission services when planning the consultation activities.
(3) Article 10 para. 3 TEU: “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”
Article 11 para. 1-3 TEU: “1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.”