Preventing incoherence between new EU legislation and EU development policy
03 December 2009
About two decades ago the EU began to seriously improve the legislative quality which developed into the “Better lawmaking” initiative covering all action aimed at improving the quality of EU legislation. One of the measures under this initiative has been the establishment of detailed guidance on how to carry out so-called “impact assessment”.
Impact assessment is a procedure for preparing evidence for political decision-makers on the advantages and disadvantages of possible policy options by assessing their potential impacts. Thus, when a proposal for a new legislative measure is prepared in the Commission, the service in charge of this preparation will generally be required to follow a number of specific steps in order to produce an impact assessment report. Among the questions that must be answered in this report are (a) what are the main policy options for reaching the objective of the policy proposal, (b) what are the likely economic, social and environmental impacts of those options and (c) how do the main options compare in terms of effectiveness, efficiency and coherence in solving the problems.
The impact assessment report is considered a key element in the development of Commission proposals, and the College of Commissioners takes the report into account when making its decisions.
What impacts are considered?
It is the Commission’s lead service for the policy proposal that is responsible for preparing the impact assessment. The lead service is also the primary responsible for identifying the likely impacts to assess. Whilst, formally speaking, no type of impact is more important than the other, in practice some impacts are considered to be of particular importance. To some extent this is reflected in the Commission’s “Impact Assessment Guidelines 2009” that identifies the following areas:
- Fundamental rights
- Environment
- Social matters – including gender equality
- The functioning of the internal market
- EU businesses (in particular impacts on small and medium-sized enterprises)
- Consumer matters
Where relevant, impacts on developing countries must also be considered. It appears, however, that this kind of impacts is only assessed in those situations where it appears rather obvious to the lead service that the policy proposal may affect developing countries. This is problematic since it regularly happens that a number of policy proposal have appreciable consequences for (some) developing countries although this is not apparent to the lead service.
The case for strengthening impact assessment vis-à-vis development policy
Deciding on what impacts must be assessed is a delicate task and a lead service carrying out an impact assessment may easily overlook areas which in hindsight ought to have been considered. Even though it is not only the EU’s development policy that may be overlooked, there are particularly good reasons to give special attention to the development policy.
Firstly, most policy proposals are clearly aimed at regulation ‘within the EU’. The Commission services involved will therefore focus on the likely impacts inside the EU whereas impacts in the developing countries are much less likely to be taken into account. The idea that the policy proposal may produce important consequences in the developing countries is simply not likely to occur to those persons working on the proposal.
Secondly, according to Article 208(1) of the Treaty on the Functioning of the European Union (TFEU) the EU is obligated to take account of the objectives of development cooperation in all other policies that it implements which are likely to affect developing countries.
In order to duly comply with the coherence requirement laid down in Article 208(1) TFEU the EU must be able to identify those policy proposals which may affect developing countries. Under the present scheme, where it is first of all for the lead service to identify what impacts to subject to closer scrutiny, it is difficult for the EU to fully comply with this Treaty obligation.
Suggestion for improvement
From the above it follows that there is a need to strengthen the present impact assessment scheme in order to ensure that new policy proposals are better vetted so as to prevent that the Article 208(1) coherence obligation is overlooked. It is therefore suggested that a procedure is established so that all new policy proposals undergo a screening procedure in the Commission’s Directorate General for Development (DG DEV) before the impact assessment procedure is set in motion. Essentially this means that the examination of whether an assessment must be carried out regarding an impact on developing countries is made by DG DEV rather than by the lead service. In practice this may mean the creation of a new desk in DG DEV to handle the screening exercise.
If this proposal is followed, the likely consequence is that impacts on developing countries will be assessed much more frequently. Where it is found that a policy proposal will have an adverse impact on developing countries this may prompt the Commission to consider alternative options of achieving the objective without negatively affecting the developing countries.