EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

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Task Force on Subsidiarity, Proportionality and Doing Less More Efficiently

Discussion paper No. 4:

Re-delegation of policy responsibility and delivering policies more efficiently.

This paper supports the envisaged discussion at the fourth meeting of the Task Force on

Subsidiarity, Proportionality and Doing Less More Efficiently. This discussion will focus on

Task (b) of those identified by President Juncker i.e.

the identification of any policy area where

over time decision making and/or implementation could be re-delegated in whole or in part or

definitively returned to the Member States.

The discussion is the first of two envisaged on this

topic. The paper aims to stimulate a discussion about how to identify areas where the Union

might want to do less and how to improve the efficiency and effectiveness of what the Union

does.

Possible questions the Task Force may wish to address

(1)

(2)

Do Task Force members agree with the 4 main ways identified of doing less more

efficiently?

Does the Task Force have any concrete examples about the four ways of doing

less more efficiently that can be discussed further in subsequent meetings? Do

previous assessments undertaken about Union competences (in annex) provide

relevant information?

What processes or mechanisms could be envisaged to tackle the issue of doing

less more efficiently on an ongoing basis (c.f. the REFIT programme for tackling

unnecessary regulatory costs)?

How might legislation that is "too dense" be identified? And how might the

legislation be "lightened" thereby giving more flexibility and discretion to local

and regional authorities?

On what basis might individual policy instruments be identified for repeal?

On what basis, might Union competences be identified for removal from the

Treaty?

(3)

(4)

(5)

(6)

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

Background Information

NTRODUCTION

The Commission's

White Paper on the future of Europe

sets out possible paths for the future

of European Union of 27 Member States. The White paper offers five illustrative scenarios for

how the Union could evolve, depending on the choices made. Scenario 4 is about "Doing

Less

(and doing it) More Efficiently".

It assumes consensus that the EU 27 should focus its limited

resources on a smaller number of activities and to tackle these priorities more efficiently. The

scenario represents, therefore, a continuation of the Juncker Commission's focus on 10 key

policy priorities

and being big on the big things and small on the small things.

OUR ASPECTS OF DOING LESS MORE EFFICIENTLY

(1) Conferral of competences: Doing less through Treaty change

The Union can only act in a given area if it has been given competence to do so by the Treaties.

This means that competences not been given to the Union remain with the Member States

. The

Union must not overreach the competences it has in attaining the relevant Treaty-based

objectives

. The three main types of competence conferred on the Union are:

–

In areas of exclusive competence, only the Union may legislate. The Member States

may act only of empowered by the Union or for implementing Union acts. Exclusive

competence covers the customs union, common commercial policy, competition rules,

monetary policy for the euro area, the conservation of marine biological resources under

the Common fisheries policy and in the conclusion of international agreements

affecting the Union's internal rules and competences.

–

In areas of shared competence both the Member States and the Union may adopt legally

binding acts but the members can only act to the extent that the Union has not acted.

Where the Union's ceases to exercise its competence the Member States are again free

to exercise theirs

–

In some specific areas, the Union has competence to support, coordinate or the actions

of the Member States but without superseding their competence to act. These cover

protection and improvement of human health, industry, culture, tourism, education,

vocational training, youth and sport, civil protection and administrative cooperation

Article 48 TEU sets out the procedure to revise the Treaty in respect of increasing or reducing

the competences conferred on the Union. While a simple majority of members of the European

Council is required to initiate the process, the final amendments agreed by a Convention tasked

with preparing the Treaty change must be ratified by all Member States. A unanimous political

consensus is needed, therefore, to reduce formally the competences conferred on the Union.

https://ec.europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf

https://ec.europa.eu/commission/priorities_en

Article 4(1) Treaty on European Union.

Article 5(2) Treaty on European Union

Articles 2(1), 3(1) and 3(2) of the Treaty on the Functioning of the European Union.

Articles 2(2) and 4(2) Treaty on the Functioning of the European Union.

Articles 2(5) and 6 Treaty on the Functioning of the European Union.

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

A brief description of other assessments of the Union's competences is provided in the attached

appendix.

(2) Doing less more efficiently without Treaty change: Repeal of existing Union acts/policies

In the area of shared competence, the Union can give back competence to the Member States

by ceasing to act at Union level. This would not require Treaty change but would require

identifying specific policy instruments and making proposals to the legislator to repeal them.

Identifying existing legislation for repeal could be undertaken on the basis of the evidence

generated by applying the Commission's better regulation policy

. The existing stock of

legislation and policies is manged actively by the Commission. Evaluations are undertaken

periodically and near systematically before making proposals to revise existing legislation.

Each evaluation looks at the continued relevance of the legislation and assesses its EU added

value. They also engage actively with civil society via public and targeted consultations. These

assessments provide, therefore, a solid evidential basis upon which the Commission could

decide to propose a repeal of specific legislation. Clearly, it would also be within the

Commission's discretion to propose repeal of Union acts without having undertaken an

evaluation. This is part of the Commission's powers under the Treaty and could be done as part

of the political programme of a new incoming President.

(3) Doing less more efficiently: No new proposals & focusing on implementation

The Commission could refrain from exercising certain powers. By choosing not to exercise

powers at European level or confining European legislation to minimum standards, the EU

would already ‘do less’ or leave the Member States discretion to act to the extent that the Union

hasn't acted. This is particularly relevant for those policy areas where a comprehensive body of

legislation already exists. The Commission could decide not to pursue new legislation in these

policy areas but to concentrate its efforts on better implementation and enforcement. This is

part of the Commission's discretion to prioritise what it does and reflects, for example, the

programme of the current Commission of President Juncker and his ten priorities. This approach

would be open to change under successive Commissions.

(4) Doing less more efficiently: tackling the density of Union legislation

An important observation of the Task Force meeting of 15 March was the similarity of content

and form of directives and regulations. An important reason is the lack of trust between Member

States and the institutions which results in a heightened level of detail and prescription in Union

legislation (directives) and less reliance on the principle of

“mutual recognition” as a means to

lessen the “density” of legislation.

Overly prescriptive legislation not only deprives local and

regional authorities of flexibility in how they implement legislation but may also lead to

unnecessary costs for those having to apply the legislation.

The choice of policy instrument (hard law/soft law, directives versus regulations, etc. ) and

designing legislation to be innovation friendly and capture the benefits of ICT are all aspects

covered by the Commission's guidance

9,10

on how to apply its better regulation policy. If applied

properly, it should help in the framing of more efficient and effective legislation.

See

Task

Force

Background

Paper

No.

Better

https://ec.europa.eu/commission/publications/background-paper-no-2-better-regulation_en

Regulation:

https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-

how/better-regulation-guidelines-and-toolbox_en

https://ec.europa.eu/info/better-regulation-toolbox_en

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

There has been a trend to delegate significant responsibility for implementing Union legislation

to agencies who work closely with national competent authorities. This can be effective in

building capacity in particular Member States, strengthening collaboration and adherence to

legislative requirements. A few examples illustrate the principle:

–

Historically, the Union's rules on anti-competitive behavior were applied solely by the

Commission. However, since 2003 there has been shared enforcement with national

competition authorities using the European Competition Network that facilitates the

sharing of information and expertise. As a result, approximately 85% of cases are now

dealt with at national level.

–

The Agency for the Coordination of Energy Regulators provides another example of

the role and importance of good coordination. ACER complements and coordinates the

work of national energy regulators at EU level. It plays a central role in the development

of EU-wide network and market rules with a view to enhancing competition. The

Agency coordinates regional and cross-regional initiatives which favour market

integration.

–

The European Chemicals Agency works closely with the Member States and the

European Economic Area (EEA). Member State representatives are members of

ECHA's Management Board, the Agency's Committees, the Forum and several

networks. ECHA cooperates closely with the competent authorities in many of its

processes, exchanging information, providing support and training to the Member

States. The European Aviation Safety Agency

follows a similar approach in

developing agency rules including guidance on acceptable means of compliance on all

aspects of air worthiness.

This Agency model of implementation may also help overcome the lack of trust between

Member States and help reduce the legislative density of Unions acts. An additional important

factor relating to the lack of trust between Member States comes from the perceived or real lack

of appropriate governance in the Member States. The debate on re-delegation of policies or

implementation has to be seen, therefore, against the need to improve governance in all Member

States as a means to promote the mutual trust necessary for the Union to function properly. The

importance of the Commission's and national implementation plans was also recognised in the

Task Force's meetings of 23 February. Again better implementation and coordination of the

implementation process can lead to better implementation and better results.

https://www.easa.europa.eu/the-agency/the-agency

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

DENTIFYING

INEFFICIENT

LEGISLATION

Challenge to ensure effective and efficient policies and legislation

The Commission reports annually on the application of Union law in the Member states and as

a function of the main policy areas

. These reports present the infringement actions

pursued

by the Commission for non-compliance with Union law as well as complaints from

individuals

. There are also complaints handled informally by SOLVIT network

in the field

of the internal market. These all illustrate the gap between what should be delivered by the

Union's policies and legislation and what individuals actually experience. These difficulties also

restrict the Union's ability to deliver effectively on a smaller number of priorities (the "big

things") that it might set for itself. In line with the priority actions announced in 2016, the

Commission presented its new enforcement policy in the Communication "EU law: Better

results through better application"

. The Communication sets out a more strategic approach to

the Commission's infringement policy, focusing on systemic problems, where Commission's

enforcement action can make a real difference.

Better regulation: simplification and tackling unnecessary costs

Better regulation underpins all the Commission's work to ensure the EU does what is needed

and does it well. Better regulation means designing legislation that delivers its societal

objectives in the most efficient way. The Commission has emphasised that actively managing

existing EU legislation is as important as preparing new initiatives. It is essential to ensure that

legislation remains fit for purpose and delivers the results that EU law-makers intended. At the

heart of its efforts to deliver simpler legislation, the Commission focuses on tackling

unnecessary costs and eliminating administrative burdens without compromising policy

objectives. Making legislation simpler and less burdensome also improves implementation and

enforcement, and ultimately delivers better results.

The Commission's better regulation processes allow all stakeholders to provide comments and

suggestions about how to simplify specific legislation

. These suggestions are then taken up

by the REFIT Platform

who may adopt opinions and recommendations to the Commission.

Clearly the focus of the current REFIT programme is on regulatory simplification but issues

linked to reducing the legislative density and the role local and regional authorities could also

be envisaged in REFIT or its successors.

https://ec.europa.eu/info/publications/annual-reports-monitoring-application-eu-law_en

For example, 986 new infringement procedures launched in 2016. See also the fact sheet:

https://ec.europa.eu/commission/sites/beta-political/files/better-regulation-factsheet_en.pdf

3783 in 2016, 3450 in 2015, 3715 in 2014.

Problems encountered in relation to the functioning of the internal market: 2414 cases handled in 2016, 2228

2015

and

2368

2014.

See

the

internal

market

scoreboard:

http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/solvit/index_en.htm

C(2016) 8600, OJ C 18, 19 January 2017.

https://eur-lex.europa.eu/legal-

content/EN/TXT/?toc=OJ%3AC%3A2017%3A018%3ATOC&uri=uriserv%3AOJ.C_.2017.018.01.0010.01

.ENG

https://ec.europa.eu/info/law/contribute-law-making_en

https://ec.europa.eu/info/law/law-making-process/evaluating-and-improving-existing-laws/refit-making-eu-

law-simpler-and-less-costly/refit-platform_en

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

Legislation where problems have been raised previously

The reasoned opinions of the national Parliaments from 2010 have been reviewed to see

whether they provide any insight about problematic EU legislative action. Opinions cover a

wide range of policy areas and individual policies. No clear patterns emerge. Among the 163

Commission proposals for which reasoned opinions were received, the largest share concerned

proposals in the internal market/financial services area (27 initiatives), followed by policies in

the justice and consumer protection area (21), health and food safety (17), transport (16) and

taxation (15). A similar picture emerges when considering the overall number of reasoned

opinions.

The following policy sectors raised most concern: Financial Markets and banking supervision

(reasoned opinions for 11 proposals), information obligations for businesses (5), public

procurement rules (3); justice cooperation and judicial proceedings (6), gender balance (3) and

data protection (3); animal health and welfare (4), food safety (4) and medical products

regulation (4); rail transport (6), air traffic and airports (4) and road safety (3); common bases

for taxation and the financial transaction tax (6). Of the 6 Commission proposals originating in

the environment field which received reasoned opinions, 4 concerned legislation on waste.

After the three yellow card cases to date

, the individual proposals that triggered the most

reasoned opinions concerned the internal market for electricity (11 reasoned opinions), a

framework for maritime spatial planning and integrated coastal management (9), the proposals

of 2011 and 2016 for the Common consolidated corporate tax base (9 each), the criteria and

mechanisms for determining the Member State responsible for examining an application for

international protection lodged in one of the Member States by a third-country national or a

stateless person (8), common rules on the temporary reintroduction of border control at internal

borders (7), market access to port services and financial transparency of ports (7), and the

manufacture, presentation and sale of tobacco and related products (7).

In the most criticised proposals

, national Parliaments not only criticise action at EU level as

being not sufficiently justified (subsidiarity) but often cite a disproportionate interference in

existing national legislation (proportionality) or that the Commission is given too wide (control)

powers through delegated and implementing acts.

Posting of workers, European Public Prosecutors Office, Monti II proposal on services)

See also the examples included each year in the Commission's Annual report on subsidiarity and

proportionality:

http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/subsidiarity_reports_en.htm

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

Appendix

Summary of selected assessments of the Union's competences

Subsidiarity and proportionality report from the Netherlands (2013)

This assessment was undertaken by all Dutch ministries and was complemented by a targeted

consultation of stakeholders. It assessed both subsidiarity and proportionality and presented

thirty or so action points on specific files together with some general recommendations. The

overarching conclusion was “Europe where necessary national where possible”. General

recommendations included not using soft-law instruments, drafting goals-based legislation

rather than prescriptive rules, not using uncertain or indirect legal bases and ensuring the

involvement of Member States in policy preparation.

Many specific files were criticised because there was no transnational dimension (EU

programme for school milk, environmental noise directive, common consolidated corporate tax

base, etc.) or concerned only a few Member States (e.g. tunnel safety directive), or related to

very disparate circumstances in the Member States (e.g. insurance of natural or man-made

disasters). Other areas such as criminal law and forestry were circumscribed as areas which

should be left to the Member States.

UK Balance of Competences

An extensive review of the balance of competences between the Union and the Member States

was completed by the UK in December 2014. It produced 32 separate reports based on 2300

written pieces of evidence. The review cost between £4.5

–

5 million

One of the sectoral reports focuses specifically on subsidiarity and proportionality which draws

on the other 31 reports

. The report focused primary on institutional and procedural aspects to

protect subsidiarity and not identifying individual policy areas where the principle of

subsidiarity was not respected. Examples and issues were raised in the other reports.

Some respondents to the UK's review cited cases where, the balance of competences was

appropriate, they felt EU proposals or laws would have been better at the national or

devolved/local level (subsidiarity) or which had disproportionate costs to the expected benefits

(proportionality).

For example, evidence to the Environment and Climate Change report highlighted the

considerable debate on how far environment and climate change competence should extend and

whether the EU always acted in accordance with the principles of subsidiarity in a way which

is compatible with the principle of localism. In addition, evidence was received about the

disproportionate nature of the proposal to ban the use of reusable olive oil jugs in restaurants

and regarding the non-conformity with subsidiarity of a draft directive on occupational pension

schemes because no evidence was given of an EU-wide problem.

However, there was also recognition in evidence received that some issues, such as cross-border

environmental problems or the Single Market, justified EU level action, and examples were

given of measures considered to be proportionate.

https://www.government.nl/latest/news/2013/06/21/european-where-necessary-national-where-possible

https://www.gov.uk/guidance/review-of-the-balance-of-competences

https://publications.parliament.uk/pa/ld201415/ldselect/ldeucom/140/14003.htm

;

https://www.gov.uk/government/consultations/subsidiarity-and-proportionality-review-of-the-balance-of-

competences

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

Centre for European Policy Studies: “Britain’s Future in Europe”, M. Emerson et al,

2015

Taking the UK’s 32 sectoral reviews from its balance of competences exercise, CEPS undertook

a detailed assessment including identifying conclusions that the UK government refused to do.

The prime purpose of the balance of competence review was to screen for those existing

competences of the EU that should better be returned to the Member States. CEPs concluded

that in not one of the 32 reviews is evidence presented by predominant or even majority views

to suggest that any existing competence should be deleted from the Treaty. On the contrary, the

predominant finding is that the competences of the

EU are ‘about right’, and that they have

often found a sensible balance, notably in the sphere of the shared competences between EU

and national levels.

Bertelsmann Stiftung: How Europe can deliver: Optimising the division of competences

among the EU and its member states (2017)

The study aims to provide guidance for a better-performing EU through an improved allocation

of competences between the European Union and its Member States. The study analyses eight

specific policies.

Common Agricultural Policy (CAP) direct payments to farmers.

The current EU scheme was

compared with a national counterfactual in which income support is the responsibility of the

national welfare system. The results pointed to significant free riding under the current

European arrangement and massively excessive costs resulting from ill-targeted income

support. According to the study's results, income protection through the CAP exceeds the level

defined by national minimum income support in 21 Member States. Overall, the study

concluded that having national responsibility is preferable to the current EU approach.

For asylum and refugee policy.

The status quo entails a mixed division of responsibilities but

Member States largely decide their own policies. The analysis concludes that European

responsibility would be superior, as it would reduce massive free riding on the reception efforts

of other Member States. In addition, annual cost savings of between €5 billion and €12 billion

(given refugee numbers like those experienced in 2015) appear realistic as a result of economies

of scale.

Corporate taxation.

The comparison used a harmonised corporate tax base definition and an

apportionment of corporate profits among Member States. The competence of tax-rate setting

remained at the national level. Taken together, the study indicates that there are disadvantages

to having this remain a national prerogative. In addition to reducing inefficiencies in tax base

competition, there would be substantial cost savings in tax compliance.

Defence policy,

the study lends support to current political initiatives for more Europe in

defence. The counterfactual is a fully integrated European army with unified decision-making

and a centralised provision of military equipment financed from the EU budget. The analysis

finds a large number of indications that the current fragmentation results in significant

diseconomies of scale.

Development policies

are currently a shared responsibility. The study contrasts this situation

with a far-reaching European counterfactual in which development aid is fully financed and

managed by the EU. Development aid financed from the EU budget would reduce free riding

https://www.ceps.eu/system/files/Britain’s%20Future%20in%20Europe_0.pdf

https://www.bertelsmann-stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikationen/EZ_Kompetenzstudie_2017_ENG.pdf

EUU, Alm.del - 2017-18 - Bilag 643: Debatoplæg til Junckers taskforce om tilbageførsel af kompetencer fra EU

on the efforts of other Member States. Substantive economies of scale can be achieved by

cutting back high administrative costs and reducing other inefficiencies associated with the

current aid fragmentation.

Higher education.

The results of the study indicate that it would be more advantageous to have

responsibility for higher education remain at the national level. There is no evidence of

European economies of scale. Free riding would increase compared to the status quo, under

which national costs and benefits are largely aligned. Overall, the current approach of having

the EU concentrate on mutual recognition of qualifications and fostering student mobility

appears to be appropriate.

Results

for railway freight transport

are indeterminate.

A European unemployment insurance scheme.

The study considers a new European scheme

that complements existing national unemployment protection in the euro area countries. The

study indicates that current protection may cause free riding by other countries, which also

benefit from the general stabilisation effects of such national insurances. The results confirm

that this problem could be resolved within a European scheme.