Evaluations and fitness checks

The affected EU-Regulation

The EU Commission has integrated an "evaluate first" principle into the EU Commission's Better regulation toolbox. The toolbox is 608 pages long and contains several proposals on how the legislative process can be guided by better regulatory principles.

The toolbox offers guidance for the Commission's services in relation to the preparatory legislative work (for example, when preparing legislative proposals, hearings, and impact assessments etc.).
 

The affected Danish regulation

All Danish legislation that implements adopted EU legislation in the period 2024-2029.
 

Affected businesses

All companies and relevant stakeholders affected by EU regulation.
 

Reasoning behind the recommendation

Evaluations:
Evaluations of legal acts are based on several criteria originating from the "evaluate first" principle. These criteria determine that legislation must be effective, coherent, relevant and add value to the EU.

While the Danish Business Regulation Forum supports the "evaluate first" principle, the Forum believes there is a need to look more closely at how the principle works in practice.

In its 2021 annual report (the most recent available), The Regulatory Scrutiny Board^[2] (RSB) points out that while the general level of evaluations has improved to ‘a close to acceptable average level’ there were fewer evaluations planned overall in 2021 compared to the 2017-2020 period^[3]. It also noted that while there was an improving trend in the ‘evaluate first’ principle from 2016-2020 up to 81% in 2020, this trend reversed in 2021 with only 72% of impact assessments respecting the ‘evaluate first’ principle. 
 

Fitness checks:
Fitness checks have been carried out in several areas such as chemicals regulations, social affairs, and consumer affairs. These comprehensive evaluations have offered the Commission the opportunity to assess the accumulated costs and burdens of various pieces of EU legislation. The evaluations therefore create added value in complex EU regulatory areas. In addition, fitness checks involve regular stakeholder meetings over a longer period, which creates trust between the various stakeholder groups.

However, an appropriate selection of the legal areas that are included in fitness checks is not always made. In addition, public consultations and questionnaires in several cases contain subjective questions that steer the answers towards certain results. Finally, some fitness checks take a long time to complete (in some cases over five years).
 

Expected consequences for industry and commerce

Evaluations and fitness checks lead to better legal quality, including less administrative burdens and simpler rules and ensure a better connection between legislation and the desired outcome.
 

Economic consequences

As the recommendation concerns all future proposals by the Commission in the period 2024-2029, it has considerable financial consequences, in addition to socio-economic, state financial, environmental, and other consequences.
 

Current Danish efforts

The forum is not aware of any Danish efforts at EU level.

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^{[2] The RSB is an independent body under the Commission that conducts quality control and provides support in connection to the Commission's impact assessments and evaluations of EU legislation. The committee reviews and delivers opinions and makes recommendations on all the Commission's draft impact analyses, comprehensive evaluations and quality checks of current legislation.}

^{[3] RSB annual report 2021, page 23-24.}

The Danish Business Regulation Forum recommends that the new EU-Commission commit to the following:

• The principle of "evaluate first" should be respected and the preparation of evaluations should be improved, in particular in terms of timing, design and methods.
   
• The Commission should consider evaluations and their conclusions when revising existing or preparing new regulation.
   
• Questionnaires in the public consultations used for evaluations and fitness checks, must be neutral and should offer opportunities to elaborate on answers in a dedicated comment box or with an uploaded position paper (see also the forum's recommendation on public consultations – recommendation no. 3).
   
• It should be specified when there is a need for an evaluation from RSB.
   
• In relation to fitness checks, road maps should contain a reasoned explanation of the choice of the laws included in the fitness check.
   
• Roadmaps should ensure increased transparency and thereby clearly indicate the various consultation channels that are being initiated and highlight if external consultants are involved.
   
• The EU Commission should aim to carry out evaluations within a maximum time frame of 2-3 years after implementation.

Regeringen tiltræder anbefalingen. Det er vigtigt for regeringen, at Kommissionen evaluerer, om regulering virker som tilsigtet og opnår formålet med færrest mulige byrder for erhvervslivet. Regeringen vil derfor arbejde for øget gennemsigtighed i evalueringsindsatsen for at sikre indsigt i udvælgelsesprocessen samt kvalitet, og vil arbejde for, at Kommissionen evaluerer lovgivning tidligere, end det er tilfældet i dag. Regeringen vil dertil arbejde for, at Kommissionen i udvælgelsesprocessen også overvejer, på hvilke områder det vil være relevant at evaluere regelkomplekser frem for enkeltstående retsakter.