Better Regulatory Impact Assessment: Making Behavioural Insights Work for the Commission’s New Better Regulation Strategy

Abstract

The Commission’s New Better Regulation Strategy of 2015 (NBRS) seeks to address shortcomings of Old Better Regulation by promoting an approach resembling what elsewhere has been called responsive behavioural regulation. By discussing the weaknesses of Old Better Regulation, we argue that limited validity of its preferred methodology, CBA, poses core issues. Differentiating between internal (legal and scientific) and external (social) validity, we find that legal evaluation and behavioural insights need to be included in a structured manner into RIA to provide a robust methodology which matches state of the art standards in science and societal dialogue. First, NBR has to acknowledge that it operates in a legal environment of EU law, where some decisions are already predetermined. Generic EU law hence already contains certain requirements at normative level, which need to be taken into account when developing NBR strategies. Second, the methods applied for IA have to ensure a degree of internal and external validity that is acceptable for regulatory purposes. In order to meet the value commitments embedded in EU law on the assessment of impacts of EU legislation and to provide internal and external validity in a structured manner we propose to use the “homo oeconomicus institutionalis” model as a guidance for methodological design of RIA.

Keywords: Regulation, EU law, Impact Assessment, Better Regulation, Smart Regulation, Behavioural Regulation, Behavioural Law and Economics