Better Regulation Interinstitutional Agreement – we have concerns!

By EDRi · December 21, 2015

On 19 May 2015, European Commission First Vice-President Frans Timmermans presented the Better Regulation package, wherein the Commission committed to “deliver better rules for better results” and to design EU policies and laws that achieve their objectives at minimum cost. One of the central points of this package is the “Interinstitutional Agreement on Better Regulation”. After being proposed by the Commission, it has been negotiated between the European Parliament, the Council of the European Union and the Commission until 8 December 2015, when a provisional agreement was reached. The Council formally approved it on 15 December.

While the efficiency of regulation is a worthwhile objective and this agreement has positive elements with regard to transparency and cooperation between the three EU institutions, this text raises several issues of concern.

First, it does not contain safeguards vis-à-vis “voluntary” measures, unlike the 2003 “Interinstitutional Agreement on better law-making”:

The Commission will ensure that any use of co-regulation or self-regulation is always consistent with Community law and that it meets the criteria of transparency (in particular the publicising of agreements) and representativeness of the parties involved. It must also represent added value for the general interest. These mechanisms will not be applicable where fundamental rights or important political options are at stake or in situations where the rules must be applied in a uniform fashion in all Member States. They must ensure swift and flexible regulation which does not affect the principles of competition or the unity of the internal market.*

*(emphasis added)

The new Interinstitutional Agreement omits the aforementioned safeguard. It should, however, also be noted that this safeguard in the previous agreement was not respected by the EU institutions. This points to a serious inherent flaw of such instruments – namely that, although they are ostensibly “legally binding”, they can be wilfully ignored if the institutions so decide.

Second, the agreement is rather unambitious concerning moves to improve transparency with regard to the controversial “trilogue” process. It states that the “three institutions will ensure the transparency of legislative procedures (…) including an appropriate handling of trilateral negotiations” and improve “communication to the public”. In addition, the institutions committed to “facilitate traceability of the various steps in the legislative process”. Would this include the publication of trilogue documents? We don’t know. Would there be any way of ensuring the commitments would be respected, even if they were clear? We do know – no, there would not.

On 30 September 2015, EDRi and 18 co-signatories sent a letter to the European Parliament President Martin Schulz, Commission President Jean-Claude Juncker and Council Secretary-General Jeppe Tranholm-Mikkelsen, asking for an urgent reform of trilogues. In the Better Regulation Interinstitutional Agreement, the institutions agreed that the Council and Parliament will be treated equally as co-legislators. Would this be respected in the context of trilogues? We don’t know. What we know is that trilogues put the European Parliament, the only EU institution which is directly elected by citizens, in a far weaker position than its ostensible “co-legislator” role implies and, in practice, this process actively discriminates against citizens.

So far, the Parliament’s President is the only one who has answered. Mr. Schulz replied saying that an “undue” reform will have negative consequences. However, it acknowledged that the Parliament is in the process of changing its rules of procedure and thus transmitted our letter to the committee responsible, the Constitutional Affairs committee (AFCO). We are still waiting for the Commission and Council’s responses. In the meantime, the European Ombudsman has opened a public consultation on transparency in trilogues until 31 March 2016, which has been publicly undermined by President Schulz. Contrary to Mr. Schulz, we welcome this initiative to change this secret, non-transparent and undemocratic system.

If you want to read a more detailed analysis about the Better Regulation Package, please click here.