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How Much Better is Better Regulation?

Assessing the Impact of the Better Regulation Package on the European Union – A Research Agenda

Published online by Cambridge University Press:  20 January 2017

Alberto Alemanno
Alberto Alemanno*
Affiliation:
HEC Paris, NYU School of Law. Email: alemanno@hec.fr.
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Abstract

Emboldened by the Spitzenkandidaten process, the new European Commission emerges as the most political yet. The Commission asks EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. The Better Regulation Package translates this political commitment into an actionable approach assuring EU citizens that the Commission will remain ‘big on big things, small on small things’. To deliver on this promise, the Commission extends the Impact Assessment system, renews its consultation procedures and adds a few institutional mechanisms so as to enhance its ‘ability to deliver’ throughout the policy cycle. But in order to do so the Commission needs to bind – and somehow control – the European Parliament and the Council, on the one hand, and the Member States, on the other, in relation to their commitment to openness, participation and evidence-based policymaking. While legitimate, this attempt raises serious doubts about the compatibility of this reform with the principle of separation of powers and, in particular, that of institutional balance. A closer look at the Better Regulation Package reveals an entirely new understanding of the Commission's own prerogatives and the way it intends to exercise its legislative and regulatory powers. And this in spite of the apparent continuity between the new and old Better Regulation initiatives and the instruments it had chosen to attain the declared objectives. With a view to lay out a future research agenda on EU Better Regulation, this article identifies the most immediate questions raised by the publication of the Package and makes a first timid attempt at addressing some of them. It aims at determining how much better, if any, is the new Better Regulation Package. It does so by discussing, first, the major novelties enacted by the Commission within its own Better Regulation system and, second, those proposed in the framework of the IIA on Better Regulation.

Type
Special Issue on the Better Regulation Package
Information
European Journal of Risk Regulation , Volume 6 , Issue 3 , September 2015 , pp. 344 - 356
Copyright
Copyright © Cambridge University Press 2015

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References

1 The EU Better Regulation strategy originated as a centrepiece of the renewed ‘Lisbon Strategy', which aimed at turning Europe into the most competitive and dynamic knowledge–based economy in the world by 2010.

2 Spitzenkandidat literally means top candidate or party list leader. The German word entered the European Union lexicon in 2013 after the centre left Party of European Socialists committed itself to naming a Spitzenkandidat for the next EU parliamentary elections. The Spitzenkandidat would then become the party's choice for the EU's most high–profile job – European Commission president. The concept only gained momentum in December 2013 when the centre right European People's Party decided to do the same, despite the objections of some of its high profile leaders, including German Chancellor Angela Merkel. It is generally believed that picking a Spitzenkandidat would democratise the process of selecting the commission president. Source: Financial Times Glossary.

3 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2015) 215 final, p. 3.

4 Communication from the Commission, Better Regulation for Better Results, An EU Agenda, p. 3.

5 Commission Communication Better Regulation for Better Rules, COM(2015) 11O final, p. 4.

6 See, e.g., Communication from the Commission, Action Plan ‘Simplifying and improving the regulatory environment’, COM(2002) 278 final.

7 Main webpage of the Better Regulation initiative, see at http://ec.europa.eu/smart-regulation/index_en.htm

8 Brown, T., Change by Design: How Design Thinking Transforms Organizations and Inspires Innovation (Harper Business, 2009).Google Scholar

9 See, e.g. A. Alemanno, and Sibony, A.L., Nudge and the Law : A European Perspective (Oxford: Hart Publishing 2015).Google Scholar

10 See, e.g., C. Bason, Leading Public Sector Innovation, Co–creating for a Better Society, 2010.

11 See, e.g., Alemanno, A., “Stakeholder Engagement in Policymaking”, in OECD, Regulatory Outlook, 2015 Google Scholar.

12 See on this point the Symposium's contributions of K. Purnhagen and P.H. Feindt, “Making Behavioural Insights Work for the Commission's New Better Regulation Strategy”, and C. Radaelli and L. Schrefler, “Contribution to the Better Regulation Debate”.

13 Executive Order, Using Behavioural Science Insights to Better Serve the American People, September 15, 2015.

14 IIA on Better Lawmaking, 12175/03, 2003.

15 IIA on Better Lawmaking, 2003, para 26.

16 Communication, supra note 4, p. 8 reports that between 2007 and 2014 the Commission produced over 700 impact assessments, the Parliament assessed the impact of around 20 of its amendments while the Council none.

17 IIA on Better Lawmaking, 2003, para 30.

18 See, e.g., paras. 3-4.

19 Communication, supra note 4, p. 7.

20 Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final, paras. 1, 7-19.

21 Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final, paras. 30-31.

22 Not only Article 10 TEU would seem to exclude so but Article 11(3) TEU requires only the EU Commission to ‘carry out broad consultations with parties concerned’.

23 Moreover, its corollary is that the EU institutions are to practice mutually sincere cooperation. See Article 13(2) TEU.

24 Communication, supra note 4, p. 10.

25 Communication, supra note 4, p. 9.

26 Commission decision of 19.05.2015 establishing the REFIT Platform, COM(2015) 3261, recital (3) of the preamble and Article 2(a) and (b).

27 For a similar concern, see U. Pachl, “Repercussions of the EU Commission Better Regulation Agenda on Consumer Interests and Policy”, in this Symposium.

28 Communication, supra note 4, p. 11 (‘Lessons learned from these reviews will help shape the design of future legislative proposals’).

29 It gathers 63 organisations of European consumer, environmental, development, citizen and public health organisations, trade unions and organisations advancing social justice.

30 See Founding statement of the Better regulation Watchdog available at http://www.betterregwatch.eu/BRWN_Founding_Statement_and_Members.pdf

31 COM(2001) 428 final available at http://www.ab.gov.tr/files/ardb/evt/1_avrupa_birligi/1_6_raporlar/1_1_white_papers/com2001_white_paper_european_governance.pdf

32 Five principles combine to form the basis of good governance: openness: the European institutions should attach more importance to transparency and communication in their decisionmaking; participation: citizens must be more systematically involved in the drafting and implementation of policies; accountability: the role of each party in the decision-making process needs to be clarified. Each actor involved should then assume responsibility for the role given to him or her; effectiveness: decisions need to be taken at the appropriate level and time, and deliver what is needed; coherence: the EU conducts extremely diverse policies which need to be pursued coherently.

33 Communication from the Commission, Action Plan ‘Simplifying and improving the regulatory environnent’, COM(2002) 278 final, p. 3.

34 Communication, supra note 4, p 3.

35 See on this point, the Symposium's contribution of C. Radaelli and L. Schrefler, “Contribution to the Better Regulation Debate”.

36 Final report, 2001 available at http://ec.europa.eu/smart-regulation/better_regulation/documents/mandelkern_report.pdf

37 Communication, supra note 4, p. 5.

38 Communication, supra note 4, p. 4.

39 Communication, supra note 4, p. 9.

40 BR Guidelines, definition of Impact Assessment, p. 90.

41 In particular, the genesis and rationale for the introduction of such a consultation opportunity appear to derive from the US request in the framework of the TTIP negotiations to create an opportunity for stakeholders to comment upon a draft IA.

42 Before any vote by the Member States in the relevant committee.

43 Communication, supra note 4, p. 5.

44 Although the use of formal IA in the development of delegated and implementing acts remains rare in practice, its use was increasing even before promulgation of the Better Regulation Package. This is largely due to the significant number of legislative acts subjecting the exercise of delegation to the performance of an impact assessment by the EU Commission services on delegated acts. In the May 2015 Better Regulation Package, the EU Commission took the position that legislative and regulatory acts “that are likely to have significant economic, environmental or social impacts” should receive an Impact Assessment based on their significance, without regard to whether they are legislative or regulatory in nature. See Better Regulation Guidelines, p. 17.

45 See Article 3 of the EU Proposal for a chapter on Regulatory Cooperation, originally published on February 10, 2015 available at http://trade.ec.europa.eu/doclib/docs/2015/february/tradoc_153120.pdf as amended on May 4, 2015 and available at http://trade.ec.europa.eu/doclib/docs/2015/april/tradoc_153403.pdf

46 For an initial analysis, see Alemanno, A., “The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences”, 18 Journal of International Economic Law 3, 2015.CrossRefGoogle Scholar

47 See Alemanno, A. and Meuwese, A., “Impact Assessment of EU Non-Legislative Rulemaking: The Missing Link in ‘New’ Comitology”, 19 European Law J. 76 (2013).CrossRefGoogle Scholar The Better Regulation Package Guidelines still do not define precisely which Commission initiatives will be viewed as having significant economics, environmental and social impacts’, but they do seem to reflect a new commitment to requiring Impact Assessment based on significance, without regard to whether the action is legislative or regulatory. See Better Regulation Package supra note 4, at 7.

48 Alemanno, A., “Unpacking the Principle of Openness: Transparency, Participation and Democracy”, European Law Review, 2014 Google Scholar: http://ssrn.com/abstract=2303644.

49 On this notion, see Cynthia R. Farina and Mary J. Newhart, Rulemaking 2.0: Understanding and Getting Better Public Participation, IBM Center for the Business of Government, p. 11.and Alemanno, A., “Stakeholder Engagement in Policymaking”, in OECD, Regulatory Outlook, 2015.Google Scholar

50 Better Regulation Toolbox, p. 310-311.

51 Better Regulation Toolbox, p. 310-311. 52 Communication, supra note 4, p. 4. See on this point the contributions to this Symposium of F. Sarpi, “Better for Whom?”, and U. Pachl, “Repercussions of the EU Commission Better Regulation Agenda on Consumer Interests and Policy”.

53 Better Regulation Guidelines, p. 17.

54 Ibid.

55 Better Regulation Guidelines, pp. 7, 17 and 90-91.

56 Communication from the Commission, Action Plan ‘Simplifying and improving the regulatory environment’, COM(2002) 278 final, p. 8.

57 Communication, supra note 4, p. 9.

58 One must observe however that the Communication from the Commission, Strengthening the foundations of Smart Regulation – improving evaluation, COM(2010) 543 final introduced the ‘evaluate first principle’ already introduced in 2010.

59 Communication, supra note 4, p. 10.

60 Commission decision of 19.05.2015 establishing the REFIT Platform, COM(2015) 3261, recital (3) of the preamble and Article 2(a) and (b).

61 See, e.g., J. Crisp, “Commission's better regulation panel mooted for watchdog role”, Euractiv, 18 December 2014, available at http://www.euractiv.com/sections/eu-priorities-2020/commissions-better-regulation-panel-mooted-watchdog-role-310956

62 Article 3 of Decision of the President of the European Commission on the establishment of an independent Regulatory Scrutiny Board, C(2015) 3263 final. EJRR

63 Article 5 of Decision of the President of the European Commission on the establishment of an independent Regulatory Scrutiny Board, C(2015) 3263 final.

64 Article 3, Footnote 4, of Decision of the President of the European Commission on the establishment of an independent Regulatory Scrutiny Board, C(2015) 3263 final.

65 Article 2 of Decision of the President of the European Commission on the establishment of an independent Regulatory Scrutiny Board, C(2015) 3263 final.

66 See the analysis this Symposium's contribution of Anne Meuwese, “Regulatory Scrutiny in Transition”.

67 Article 3 of Commission Decision establishing REFIT Platform, c(2015) 3261 final.

68 It has been preceded by Business Test Panels as well as sectoral Fitness Checks.

69 Commission decision of 19.05.2015 establishing the REFIT Platform, COM(2015) 3261, recital (3) of the preamble and Article 2(a) and (b).

70 Communication, supra note 4, p. 11.

71 Communication, supra note 4, p. 11 (‘Lessons learned from these reviews will help shape the design of future legislative proposals’).

72 Better Regulation Toolbox, pp. 140-1.

73 IIA on Better Lawmaking, 2003.

74 IIA, para. 14.

75 Communication, supra note 4, p. 5.

76 See Chase, P. and Schlosser, A., “Better Regulation – An Ongoing Journey”, in this Symposium.Google Scholar

77 Ibid.

78 Proposal for an IIA Agreement on Better Regulation, para 15.

79 Proposal for an Interininstitutional Agreement on Better Regulation, COM(2015) 216 final, para. 10.

80 IIA on Better Lawmaking, 2003, para. 26. See also Inter–Institutional Common Approach to Impact Assessment (IA), 2005.

81 The 2003 IIA refers to ‘substantive’ rather than ‘substantial’ amendments when introducing such a duty. The 2005 Inter–Institutional Common Approach to Impact Assessment states that ‘the definition of what constitutes a ‘substantive’ amendment should be for the respective Institution to determine. This decision, however, should reflect the shared and balanced commitment to impact assessment and to Better Lawmaking in general’.

82 Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final, para. 10.

83 This seems to go beyond what is foreseen by the Inter–Institutional Common Approach to Impact Assessment (IA), 2005, paras16-17.

84 See the on–going reform of the Court of Justice, A. Alemanno, and L. Pech, “Where do we stand on the reform of the EU's Court System? On a reform as short–sighted as the attempts to force through its adoption”, VerfBlog, 2015/9/23, http://www.verfassungsblog.de/en/where-do-we-stand-on-the-reform-of-the-eus-court-system-on-a-reform-as-short-sighted-as-the-attempts-to-force-through-its-adoption/

85 On the scope of the right of initiative, see Opinion of Advocate General Jaaskinen delivered on 18 December 2014 in C-409/13, Council of the European Union v European Commission, paras. 37-86, nyr.

86 See, inter alia, Case C-120/99 Italy v Council [2001] ECR I-7997, para. 44, and Case C-310/04 Spain v Council [2006] ECR I-7285, para. 121.

87 C-343/09 Afton Chemical Limited v Secretary of State for Transport [2010] ECR I-07027.

88 Opinion by Advocate General Kokott in Case C-343/09 Afton Chemical Limited v Secretary of State for Transport [2010] ECR I-07027, para. 86.

89 C-343/09 Afton Chemical Limited v Secretary of State for Transport [2010] ECR I-07027, para. 30.

90 Proposal for an Interininstitutional Agreement on Better Regulation, COM(2015) 216 final, para. 12.

91 In order to successfully address the challenge of subjecting to IA also the Council and Parliament amendments, it has been advanced the so–called Doorn motion (from the name of its Rapporteur). This motion calls for the establishment of a common procedure in which three parallel audits are set up for the joint implementation of a new IA model involving the three institutions. See the European Parliament Resolution on the comprehensive monitoring report, Resolution 2004/A5-0221, 24 March 2004. Other models that have circulated over the last decade include the Bureau of European Policy Advisors attached to the Presidency (BUPA) (today renamed European Political Strategy Centre); a new Presidential office; or a shared group of DGs, the Legal Service or an Interinstitutional body linking several units such as DG Enterprise, DG EcoFin, DG Environment, DG SANTE. For other options for the creation of a central regulatory oversight authority, see J. Wiener, Better Regulation in Europe, Current Legal Problems, 56, pp. 447-518 and A. Alemanno, “Quis Custotet Custodes dans le cadre de l'initiative Mieux Légiférer? Une analyse des mécanismes de surveillance de la qualité réglementaire au sein de la Commission européenne et le Comité d’évaluation des analyses d’impact” Revue du Droit de l'Union Européenne, 1/2008.

92 Article 293 TFEU.

93 Opinion of Advocate General Jaaskinen delivered on 18 December 2014 in C-409/13, Council of the European Union v European Commission, para. 34, nyr. Alemanno, A. and Wiener, J., “Comparing Regulatory Oversight Bodies Across the Atlantic: The Office of Information and Regulatory Affairs in the US and the Impact Assessment Board in the EU”, in S. Rose–Ackerman and P. Lindseth (eds), Comparative Administrative Law (Cheltenham: Edward Elgar 2011)Google Scholar. Contra J. Broughel, “What the United States Can Learn from the European Commission's Better Regulation Initiative”, in this Symposium.

95 An informal tripartite meeting attended by representatives of the European Parliament, the Council of the European Union, and the European Commission.

96 See Stie, Anne Elizabeth, Democratic Decision–Making in the EU: Technocracy in Disguise (London: Routledge, 2013).Google Scholar

97 Largely as a result of informal facilitating arrangements such as trilogues, the EU has been quite successful in enacting needed legislation: 72% of legislative acts are adopted at first reading, 23% at second reading and only 5% require conciliation and a third reading. See at http://www.europarl.europa.eu/code/information/guide_en.pdf.

98 A similar effort can already be identified in the Communication from the Commission, Action Plan ‘Simplifying and improving the regulatory environment’, COM(2002) 278 final.

99 Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final, para. 31.

100 One should notice, however, that it might be difficult to specify what precisely should be avoided when there are different understandings of which measures the concept ‘gold–plating’ includes.

101 The European Commission's description of what gold–plating involves thus covers only those implementation measures that add something to the requirements in a Directive. See Better Regulation Glossary.

102 Communication from the Commission, Better Regulation for Better Results, An EU Agenda.

103 Better Regulation Toolbox.

104 See, e.g., Commission decision of 19.05.2015 establishing the REFIT Platform, COM(2015) 3261.

105 The latter still belongs to the Better Regulation's old narrative, while the former already includes a more encompassing approach, which moves beyond red tape and perceives regulation as an engine for competitiveness and innovation. I owe this comment to Lorenzo Allio.

106 European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union (2012/2024(INL).

107 HCH. Hofmann, J-P. Schneider and J. Ziller, ReNEUAL Model Rules on EU Administrative Procedure (2014).