February 16, 2018
Three cases show the lack of analysis of contributions to consultations and make the distrust in the system grow
Progress on Better Regulation without a doubt,…
Since the adoption of the Better Regulation package in 2015 and the adoption of the Inter-institutional Agreement on Better Law-making in 2016, progress has been made in terms of transparency, inclusiveness and reduction of administrative burden.
Concerning secondary legislation, the Commission already launched mid-2016 the new webpage opening up to 4-week public consultation draft delegated and implementing acts as well as measures subject to the Regulatory Procedure with Scrutiny. To date, over 250 texts have been published on this webpage and thousands of comments have been submitted. The development of this consultation tool is undoubtedly a step forward.
…, but 3 cases show there is an absolute need to do more
But as much as this reform may be applauded, some fundamental issues remain which deserve attention and require adjustments in order for the consultation process to be made more efficient and fit-for-purpose.
There seems to be a worrying trend of closing the 4-week consultation and almost literally a day later adopting or holding a vote on the measure without taking the necessary time to analyse the stakeholder input into the consultation and assess whether amendments to the draft measure are required.
Only in recent weeks, we can cite three files in which the consultation was seemingly turned into a box-ticking exercise, something that surely cannot be in the true spirit of Better Regulation.
- The case of formaldehyde is particularly striking. The formal non-authorisation of the substance for use as a feed additive in skimmed milk for piglets came after a lengthy period of discussion and disagreement, and there was an understandable desire finally to take a decision on it. Nevertheless, it was remarkable to see that barely one day after the 4-week consultation had closed on 19 December 2017, the European Commission (DG SANTE) on 20 December 2017 put this proposal to a vote in the relevant section of the Standing Committee on Plants, Animals, Food and Feed, where it was endorsed by a qualified majority of Member States. How is it possible that the input into the consultation (98 comments in total) could be thoroughly evaluated in such a short space of time?
- In the context of the implementation of the Medical Devices legislation, another file appears to have met a similar fate. On 27 September 2017, DG GROW uploaded to the consultation portal a draft implementing act setting designation codes for notified bodies, which received 13 comments from the public. The day immediately after the end of the 4-week window, the competent unit sent the draft to the Committee on Medical Devices for adoption via written procedure.
Unfortunately this symptom seems to feature not only in the consultation processes for delegated and implementing acts, but also in more upstream consultations with a view to potentially revising primary EU legislation.
- The public consultation launched by DG GROW on the possible reform of Supplementary Protection Certificates (SPCs) opened on 12 October 2017 and closed on 4 January 2018. Over 100 submissions from various stakeholders were submitted, many of which provided substantial evidence and input that required analysis before a policy decision could be taken. Nevertheless, relatively soon after the closure of the 12-week consultation, DG GROW made it clear it wished to proceed with a legislative adaptation. Again, in such a short period of time, questions can be raised about how a thorough analysis of the consultation feedback could possibly have taken place. It creates the impression that, even with legislative amendments, the input into consultations is irrelevant as a policy choice has already been made.
Respecting the letter and the spirit of Better Regulation is the only means to create and maintain trust in the EU decision-making system
Of course, the European Commission is not obliged to take all contributions into account, nor can it be expected to comment on each individual contribution. However, citizens and stakeholders do expect Commission services to look into and analyse the input thoroughly and provide feedback on how it assesses that input.
For all these cases, one could of course find arguments providing a so-called ‘justification’ for why this approach was acceptable. But fundamentally it goes against not only the spirit of Better Regulation but also the commitments set down for the services in the Commission’s own Better Regulation Guidelines: consultation needs to be followed by a thorough analysis of the feedback received. The latter is an integral part of a consultation process.
Not respecting this basic principle will in the long term – and possibly even in the short term – undermine the trust that citizens and stakeholders place in the process. It increases the global feeling of the ‘case-by-case approach’ and uncertainty in understanding why certain options are discarded and others followed through.