Impact Assessment in the European Union
Impact Assessment in the European Union
The European Union is confronted with great challenges. On the one hand, the citizens of Europe expect solutions at European level to the global problems of the age, such as mass unemployment, global environmental issues, breakdown of social security systems, food safety, etc., and on the other hand there is a great deal of scepticism about the EU, which is often perceived as being distant from its citizens, bureaucratic and ineffective. Because of this, the European Commission decided in early 2001 to reform European governance. In the field of lawmaking in Europe, improvements in the quality and efficiency of regulatory measures were demanded in, among other places, the European Governance White Paper as well as the requirement to make these measures simple and understandable. The acceptance of European legislation depends among other things on “good” European laws. Better policy needs better rules to get better results.
Against this background, and on the basis of the Mandelkern Report, the Commission has published an Action plan “simplifying and improving the regulatory environment” and a Communication on Impact Assessment.
If legislation is really to have better results, then it is necessary to establish and assess its possible impact in advance. Legislation that does not have the intended effect cannot lead to better results. This view brings the effectiveness of legislation and thus the assessment of possible impacts more sharply into focus alongside its lawfulness.
The European Commission therefore began in 2003 to introduce an integrated Impact Assessment (IA) procedure, which, unlike national impact assessment relates in the European Union not only to legislation but also to policy programmes such a white papers, action plans and finance programmes. It is intended using this procedure to assess systematically the economic, social and environmental impact of new EU legislation. Since 2005, the IA has been the standard procedure. You can find a list of previous Impact Assessments by the Commission here. This procedure replaces the impact assessments that were formerly used in isolation for undertakings, etc. with regard to environmental impact, trading policy measures and also gender and gender equality.
To simplify implementation, the Commission published “Impact Assessment Guidelines” in June 2005. Equality of treatment and opportunities and non-discrimination are covered there under the heading Social Impacts. Under “Step 1: Identify environmental, economic and social impacts of a policy, why they occur and who is affected”, the text reads:
“Impacts on existing inequalities. You should for instance compare regional, gender and ethnic impacts of the proposed action to see if the latter is likely to leave existing inequalities unchanged, aggravate them, or help to reduce them. This is not a simple matter: for example, differences between male and female lifestyles may mean that a proposal which is apparently neutral as regards gender equality will in practice have different impacts on men and women.”
The “key questions” relating to “social impacts” include the following dealing expressly with gender and gender equality:
“Does the option affect gender equality?
Does the option entail any different treatment of groups or individuals directly on grounds of e.g. gender, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation? Or could it lead to indirect discrimination?”
Previously, the European Commission had been using “A Guide to Gender Impact Assessment” for determining impacts on gender relations. This can still be used as a supplement, as it provides for example more exhaustive information and tips for the assessment of gender-related impacts than the integrated Guidelines mentioned above.
The European Commission has requested the Member States to carry out Impact Assessments themselves in cases where they have the right of initiation in legislation, e.g. in the court system and domestic affairs. A systematic Impact Assessment analysis should also be submitted for draft national legislation about which the Member States inform the Commission.
The Commission has a strong interest in developing and applying standards for Impact Assessment jointly with the Member States, for European law must as a matter of course be harmonized into national law. If the national law is not a good law, i.e. in this connection lacking awareness of impacts, this means that the European Directive has not been properly harmonized and will probably not have the desired effect. The effectiveness of European legislation, then, depends on harmonization into national law by the Member States. If it is only the Commission that undertakes to carry out systematic impact assessments or if it does so according to quite different criteria from those of the Member States, then the effectiveness of IA as a method will remain severely limited. If, for example, the EU Commission, when drafting a Directive, shapes it in such a way that it is oriented to gender equality with the aid of an impact assessment regarding gender relations, then these findings should also be used within the framework of national legislation by means of a gender impact assessment building on them.
Even if the institutionalization of the method of Impact Assessment has only just begun and, like any change, is having and will continue to have its fair share of problems, it is possible to say even now with a fair degree of certainty that Impact Assessment has become as international standard against which legislative processes, whether in the EU or in Germany, must be measured. Systematic Impact Assessment is a means of securing quality in legislative processes which is here to stay.
Against this background, and on the basis of the Mandelkern Report, the Commission has published an Action plan “simplifying and improving the regulatory environment” and a Communication on Impact Assessment.
If legislation is really to have better results, then it is necessary to establish and assess its possible impact in advance. Legislation that does not have the intended effect cannot lead to better results. This view brings the effectiveness of legislation and thus the assessment of possible impacts more sharply into focus alongside its lawfulness.
The European Commission therefore began in 2003 to introduce an integrated Impact Assessment (IA) procedure, which, unlike national impact assessment relates in the European Union not only to legislation but also to policy programmes such a white papers, action plans and finance programmes. It is intended using this procedure to assess systematically the economic, social and environmental impact of new EU legislation. Since 2005, the IA has been the standard procedure. You can find a list of previous Impact Assessments by the Commission here. This procedure replaces the impact assessments that were formerly used in isolation for undertakings, etc. with regard to environmental impact, trading policy measures and also gender and gender equality.
To simplify implementation, the Commission published “Impact Assessment Guidelines” in June 2005. Equality of treatment and opportunities and non-discrimination are covered there under the heading Social Impacts. Under “Step 1: Identify environmental, economic and social impacts of a policy, why they occur and who is affected”, the text reads:
“Impacts on existing inequalities. You should for instance compare regional, gender and ethnic impacts of the proposed action to see if the latter is likely to leave existing inequalities unchanged, aggravate them, or help to reduce them. This is not a simple matter: for example, differences between male and female lifestyles may mean that a proposal which is apparently neutral as regards gender equality will in practice have different impacts on men and women.”
The “key questions” relating to “social impacts” include the following dealing expressly with gender and gender equality:
“Does the option affect gender equality?
Does the option entail any different treatment of groups or individuals directly on grounds of e.g. gender, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation? Or could it lead to indirect discrimination?”
Previously, the European Commission had been using “A Guide to Gender Impact Assessment” for determining impacts on gender relations. This can still be used as a supplement, as it provides for example more exhaustive information and tips for the assessment of gender-related impacts than the integrated Guidelines mentioned above.
The European Commission has requested the Member States to carry out Impact Assessments themselves in cases where they have the right of initiation in legislation, e.g. in the court system and domestic affairs. A systematic Impact Assessment analysis should also be submitted for draft national legislation about which the Member States inform the Commission.
The Commission has a strong interest in developing and applying standards for Impact Assessment jointly with the Member States, for European law must as a matter of course be harmonized into national law. If the national law is not a good law, i.e. in this connection lacking awareness of impacts, this means that the European Directive has not been properly harmonized and will probably not have the desired effect. The effectiveness of European legislation, then, depends on harmonization into national law by the Member States. If it is only the Commission that undertakes to carry out systematic impact assessments or if it does so according to quite different criteria from those of the Member States, then the effectiveness of IA as a method will remain severely limited. If, for example, the EU Commission, when drafting a Directive, shapes it in such a way that it is oriented to gender equality with the aid of an impact assessment regarding gender relations, then these findings should also be used within the framework of national legislation by means of a gender impact assessment building on them.
Even if the institutionalization of the method of Impact Assessment has only just begun and, like any change, is having and will continue to have its fair share of problems, it is possible to say even now with a fair degree of certainty that Impact Assessment has become as international standard against which legislative processes, whether in the EU or in Germany, must be measured. Systematic Impact Assessment is a means of securing quality in legislative processes which is here to stay.
Further literature
- Karpen, Ulrich: Gesetzesfolgenabschätzung in der Europäischen Union, in: Archiv des öffentlichen Rechts, Bd.124, 1999, S. 400 - 422.
- Lange, Christian: Gesetzesfolgenabschätzung auf der Ebene der Europäischen Union, in: Zeitschrift für Gesetzgebung (ZG) 2001, S. 269 - 278.
- Leitfaden zur Bewertung geschlechterspezifischer Auswirkungen, 1998.
- Smeddinck, Ulrich: Optimale Gesetzgebung im Zeitalter des Mandelkern-Berichts, Deutsche Verwaltungsblätter (DVBl.) 2003, S.641 – 646.
- Gemeinsames Eckpunktepapier der Bundesregierung der Bundesrepublik Deutschland: Folgenabschätzung bei der Rechtsetzung der Europäischen Union, vom 17.12. 2004.
- European Governance, a White Paper, Brussels, July 25, 2001, COM(2001)428 final
- European Governance, Better Lawmaking, Brussels, June 6, 2002, COM(2002)275 final/2
- Action plan “simplifying and improving the regulatory environment”, Brussels, June 5, 2002, COM(2002)278 final
- Impact Assessment, Brussels, June 5, 2002, COM(2002)276 final
- European Commission: Impact Assessment Guidelines, June 15, 2005, SEC(2005) 791
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