Article Published June 24th, 2015
Removing regulatory burdens to make the EU more user-friendly
By Richard Seebohm, former Representative in Brussels of the Quaker Council for European Affairs
As Samuel Johnson once said, patriotism is the last refuge of a scoundrel. I wonder if the term sovereignty is not tarred with the same brush. The debate on EU membership is conducted at times on the broad concept that it is wrong for us to let foreigners tell us what to do. What could or should matter rather more to us ‘hard working people’ is the outcome rather than the power – exactly what the foreigners are telling us to do.
I am therefore fascinated by the European Commission’s REFIT programme. This used to be called Better Regulation and has been going since about 2004. REFIT stands for Regulatory Fitness and Performance Programme, and in essence it amounts to finding regulatory Directives (in the acquis communautaire) to abolish, abandon or amend. The suggestions come from the Commission and are then put to the ‘legislator’ (a portmanteau word for the Parliament and the Council, the collective of member state ministers).
The Commission publishes a ‘Scorecard’ which reports progress in processing its proposals. In fact the Commission is abandoning directives in its pipeline before even putting them to the legislator. Until now, the member states have blocked many of the suggestions. This may be because they prefer to blame the EU for regulations that they see as necessary but unpopular. (Of course some member states lag far behind in implementing the original Directives.)
There is of course a polarised debate on regulation, in that the business lobby wants restrictions removed, whilst the trade union lobby (to be simplistic in both cases) wants safeguards such as the working time directive retained. There is also an environmental lobby (to be simplistic again) worried about the loss of safeguards relating to food, chemicals and animals. There is now a consortium, Better Regulation Watch, of concerned organisations. The case by case results, as the directives are scrutinised, will depend on the political spectrum of the elected governments in the now numerous member states, and the possibly capricious outcomes of the European Parliamentary process (which is not yet fully under way). In many cases, removing a restrictive directive will not automatically strike down national legislation implementing it. Member states would then be free to make up their own minds. The programme also includes measures defined as Regulations rather than Directives, which apply directly without being reinterpreted into national law. Replacing one of these might require fresh national legislation.
Regulation is thus an open door for debate, and the Commission itself is inviting comments on what else should be considered for scrutiny. This is in contrast to the Treaty, where negotiated agreement on possible changes will take time (that the present UK Government does not have), with further delay for enactment even if the 28 member states can clear domestic hurdles, and yet more for practical application.
The Treaty of course prescribes the ‘competences’. Some are policy areas that only the EU can exercise – such as trade treaties and running the eurozone; shared competences – where the EU can set the rules by means of directives but does not have to do so; and matters left to member states but where they can ask for EU coordination. The second set are clearly for REFIT, but the last area includes Treaty provisions where national policies in general such as health and education are independent but overlap with REFIT items such as rules for procurement.
What this implies for the British government is that the directives it dislikes must first be identified. The Commission can then be encouraged to include them in REFIT. As a start, each of the Whitehall departments (in a 2014 exercise) has already reported in detail how the EU and national competences affect their responsibilities. This included wide consultation with the private sector. Once a directive is targeted and included in REFIT, it is the member states one by one that should be sounded out, perhaps at official level. This has to be a matter of painstaking detail, not of grandstanding. It’s what the civil service is for!
 See http://ec.europa.eu/smart-regulation/docs/refit_brochure_en.pdf for brochure, with http://ec.europa.eu/smart-regulation/refit/consultation to add comments.