Make it Work and the EU law-making process Martin Nesbit, Institute for European Environmental Policy Make it Work Conference Regulatory Insights, Experiences and Enlightenment - making regulation work for our Environment Edinburgh, December 2015

What does the EU legislative process mean for better regulation? EU legislation is made through a unique and complex process of negotiation; The proposers of legislation (the Commission) do not have full control over its final form – and may have to accept new implemenation detail, with limited prior analysis of implications; So making progress on principles of better regulation means we need to secure endorsement – and active use – by legislators.

What happens to legislative proposals? Process of negotiation within EP and within Council; No stable majorities – agreeing a text in either EP or Council can mean adding new detail, and new requirements to convince waverers. Commission can withdraw proposals, but is reluctant to do so; In some cases, process of modification can help clarify implementation requirements; But in many cases, it adds detail and complexity.

What sort of complexity can be added? Conditional exemptions Complex and conflicting compliance assurance rules Review clauses Different options for implementation, leading to a lack of standardisation

How can the legislative process improve legislation? The legislative process is a necessary mechanism to ensure legislation is fit for purpose across the EU. In particular: It can reflect specific regional circumstances; It can address issues which emerge too late to be addressed in Commission proposals; And, of course, it ensures democratic legitimacy. But the legislative process rarely, if ever, simplifies implementation!

What can be done to avoid these problems? (1) Improvements in Commission process, including on impact assessment, have helped ensure some issues are addressed before tabling of proposals; Timmermans package of proposals, including a new Inter- Institutional Agreement on better regulation, which covers (inter alia): –Legislative coordination –Impact assessment –A focus on implementation –Simplification, including Refit. Could the better regulation IIA include agreement of principles on standard drafting of key elements?

What can be done to avoid these problems? (2) Joint Practical Guide* for drafters of legislation contains some useful pointers on the need for clarity; but does not offer detail on e.g. approaches to implementation; There is scope for securing broad agreement on key principles, and thereby reduce the scope for complexity being introduced through the legislative process; The key requirement is for a broad-based political endorsement of guidelines and other approaches to avoiding unnecessary complexity * see (see:

What are the lessons for Make it Work project? A technical process, but will need political endorsement to ensure effectiveness; Needs to understand the drivers for complexity in the EU’s democratic process; Need to find better approaches to responding to those drivers; Where agreement has been reached on legislative drafting, make use of the standard text, and get others use to the idea of the standard text. Guidance/guidelines on better regulatory approaches will only work if the legislator is guided by them!

Thank you for your attention!