Beating About the Bush in 'Better Regulation'

Bernard Steunenberg, Wim Voermans and Stefaan Van den Bogaert (eds.), Fit for the Future; Reflections from Leiden on the Functioning of the EU. Eleven international Publishing: The Hague, p. 69-88, 2016

22 Pages Posted: 28 Apr 2016

See all articles by Wim J. M. Voermans

Wim J. M. Voermans

Leiden University - Leiden Law School

Date Written: April 26, 2016

Abstract

With its insistence on still further improving the quality of EU legislation by ‘making it simpler and more workable’ and - as a result - reduce the administrative burden for businesses, citizens and governments, the Dutch agenda for the EU in 2016 ties in very well with the Timmermans-agenda on better regulation, which has made better regulation one of the top priorities of the present Juncker-Commission. EU-legislation is of course of the utmost importance for European integration: the EU is in fact cemented by law expressed in legislation. Legislation and regulation play a pivotal role in the European Union, because of the distinct characteristics of its institutions and the particular dynamics of the economic and political cooperation between the Member States. The EU is therefore duly labelled a ‘regulatory State’. Where ‘regular states’ predominantly govern by means of redistribution of resources levied from society and channelled through via political processes and the delivery of services, the EU is restricted in this respect: the direct delivery of public services is not done by EU institutions themselves, the EU lacks the financial capacities to rely on spending programs to a large extent, and the EU has to rely on its member states for implementation and enforcement.

In view of the vital role of legislation and regulation, it may come as no surprise then that the EU has put great emphasis on improving the quality of EU legislation and regulation over the last two decades. Much depends on the quality of legislation in the EU, not only the functioning of the markets but, in sum, the overall performance and legitimacy of the EU as well. This contribution takes stock of the different attempts, programmes and policies put in place to improve the quality and thereby the performance of EU legislation and regulation. We will try to answer two basic questions related to the current initiatives and policies. First of all, are the solutions well-targeted and dosed in view of the problem at hand, and secondly, do they actually work?

The effectiveness of the better regulation programmes is very hard to access in view of the overall quality of legislation/regulation. They have never been rigorously evaluated as such. The present initiatives of the EU can therefore be seen as again a new call to arms in an already long series. However, we feel the initiative does deserve appreciation, if only because of its clear mission, its realism and its comprehensiveness. The REFIT Platform and the Regulatory Scrutiny Board as well as the call for ‘evidence-based’ legislation and increasing transparency in the process do bear promise.

Nevertheless, we believe, the new initiatives fall short in some areas as well. First of all the initiative is in itself not really evidence-based. It does not rest on the insights of system evaluation of the EU better regulation programmes and policies as such - it is in a respect somewhat inward looking (quite procedural and Interinstitutional). We feel rigorous evaluation of the better regulation policies themselves is in order. A second flaw is that the initiative takes insufficient account of the different perspectives and contexts of regulatory complaints and so the response to these might be inadequate. The regulatory policies of the EU might suffer from myopia in this respect. We also feel that the initiative does not put enough effort in arriving at a truly reflective legislative process in which the monitoring and evaluation of how EU regulations are applied, leads to improvements in implementation practice and - in a learning loop - feeds back into the EU legislative process itself.

Another serious shortcoming, to our mind, is that the initiative leaves the relatively autonomously operating world of comitology virtually untouched. We also feel that more effort should be made to ensure that assessment methods for regulations are more objective, more elaborate (also including an estimate of the benefits) and that evidence base of EU regulation can be questioned before an independent institution or even a court.

Keywords: EU regulation, better regulation, regulatory state, EU legislation, Refit, Regulatoruy scrutiny board, impact assessment, comitology, EU, evaluation, regulatory policy

JEL Classification: K2, K23, K33, K40, O52

Suggested Citation

Voermans, Wim, Beating About the Bush in 'Better Regulation' (April 26, 2016). Bernard Steunenberg, Wim Voermans and Stefaan Van den Bogaert (eds.), Fit for the Future; Reflections from Leiden on the Functioning of the EU. Eleven international Publishing: The Hague, p. 69-88, 2016, Available at SSRN: https://ssrn.com/abstract=2770424

Wim Voermans (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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