In 2012, the European Commission launched the REFIT (“REgulatory FITness” and Performance) programme. In its Communication, the Commission noted that the economic crisis (aka the “current economic situation”) demands “that EU legislation be even more effective and efficient in achieving its public policy objectives”; it must deliver “full benefits at minimum cost”, aiming at a “simple, clear, stable and predictable regulatory framework for businesses, workers and citizens.” Special attention was devoted to SME’s, and “what they consider to be the Top Ten most burdensome EU regulations”. REFIT does not ignore implementation, but the latter will focus “on identified single-market priority areas” (i.e., services, including financial ones, transport and digital economy). Hence, environment and social policy are not implementation priorities: still, they will face the scrutiny of so-called “fitness checks” – evidence-based “comprehensive policy evaluations assessing whether the regulatory framework for a policy sector is fit for purpose”.
Where does REFIT fit in?
REFIT did not happen in a void: the economic crisis serves as the pretext for pressures on environment and the associated policies and legislation, both at the national and the EU level. As reported by WWF’s CrisisWatch since 2012, Europe is experiencing a going through a massive rollback in environmental laws and policies: only recently, the Commission decided to kill important new legislation on circular economy and air quality, thus stirring public outcry and going against the opinion of the European Parliament and environment ministers.
Key to the REFIT programme is the notion of “regulatory fitness”, a neologism with unclear meaning, for which all selected legislation will be checked.
“Evidence-based”, but without evidence
What do REFIT checks involve exactly? REFIT is not a comprehensive tool for evaluating regulation – like, say, the one proposed by OECD, which considers “economic, social and environmental benefits”. According to the Commission, legislation will be scrutinised only for effectiveness, efficiency, coherence and relevance. None of these terms is defined or clarified, and their use invites a host of philosophical questions, that have not been answered. Suppose that in country X a certain human right – say, the right of every child to adequate education – is “ineffective”: does it really follow that country X must repeal it? Efficiency is supposedly a cost/benefit analysis, related to the 2005 adoption of Standard Cost Model for assessing “administrative costs imposed by legislation”: this model has never been critically assessed, is flawed for environmental and social policy and neatly ignores relevant EC-sponsored initiatives, such as TEEB (The Economics of Ecosystems & Biodiversity). It is hard to decipher what “coherence” is all about, but it seems to be about conflict of laws – an issue addressed not by policy-makers, but often by the text of legislation, and resolved traditionally by judges and legal practitioners by time-honored, well-established methods.
A more general problem with REFIT is that although simplification is touted, the overlap with a range of evaluatory activities – e.g., ex post evaluation under the Financial Regulation, ECA audits, monitoring under specific directives, and so forth - is both wide-ranging and ill-defined. Assessments proliferate: for example, there is guidance “on taking account of Fundamental Rights in Commission Impact Assessments”, but this does not seem to concern REFIT.
Relevance, however, is crucial to REFIT, which involves the repeal of “unnecessary and irrelevant laws”. Counter-intuitively, age is irrelevant: brand new proposals, like the ones on tourism quality principles or the dissemination of Earth observation satellite data have also been scrapped. We are told that SMEs opinion matters: however, SMEs have no qualms about the Habitats Directive, yet its “regulatory fitness” is questioned. On the other, the understandable uneasiness of SMEs with Directive 2008/9 (on VAT refund to persons established outside a member state - nr. 2 in their list) is ignored in Commission’s 2015 work program. Thus, “unnecessary” laws include the registration of radioactive material carriers (“no foreseeable agreement”), the reduction of atmospheric pollutants (“to be modified”), and a fund for compensation from oil damage (“analysis out of date”). In 2014, the access to justice (“no effective progress”) and soil directives (“the Commission remains committed”) were also deemed irrelevant and axed, despite comprehensive EC-commissioned studies and assessments, in line with REFIT requirements. Withdrawals have not been costed, and where no solution can be found, more delays are proposed as a solution to delays, while any modicum of “evidence-based analysis” is still lacking. REFIT does not seem able to live up to its principles.
More fundamentally, does the importance of the EU’s nature conservation legislation need to be analysed? No: the Habitats and Birds Directives have already been hailed as “some of the best nature legislation in the world”, with significant economic and non-economic benefits. What Europe needs is stronger implementation and not "a smokescreen for deregulation under the pretence of ‘reducing bureaucracy’”.