Research note by Mariolina Eliantonio and Aneta Spendzharova.
In May 2015, the European Commission unveiled its new ‘Better Regulation’ programme,[1] designed to ensure that European Union (EU) laws and policies are prepared, implemented and reviewed in an open and transparent manner, informed by evidence and supported by business and citizens. It demonstrates sustained attention for transparency in the preparation of laws, responsiveness to stakeholders and the public, and reliance on evidence-based policy-making. It also shows consideration for subsidiarity concerns in the context of the subsidiarity and proportionality reviews in the Netherlands in 2013 and the United Kingdom (UK) in 2014, and the impending withdrawal of the UK from the EU.[2]
Following up on the White Paper on Governance (2000),[3] and the Interinstitutional Agreement on Better Law-Making (2003),[4] the renewed ‘Better Regulation’ agenda (2015)[5] aims to diminish the negative unintended consequences of political bargaining in the Council and the EU legislative triangle and to deliver better policies in the EU legal order, ultimately reinforcing the trust of European citizens in the EU political processes and counteracting the perceived legitimacy crisis for European integration. In order to achieve these overarching aims, the ‘Better Regulation’ agenda shows a renewed attention towards evidence-based policy-making across the policy cycle. At the same time, the new ‘Better Regulation’ agenda maintains the economic focus of the preceding package in terms of rigorous cost-benefit evaluation of the expected policy outcomes through impact assessment (IA), openness to market solutions, and emphasis on ‘cutting red tape’ for businesses.
The special issue of the European Journal of Law Reform on this topic takes an interdisciplinary approach, bringing together legal and political science perspectives. Taking stock of the literature on ‘Better Regulation’ and the latest policy developments, the collection examines the consequences of the new ‘Better Regulation’ agenda for law and policy-making in the European Union, with the aim of answering one overarching research question: is there evidence of enduring politicisation despite the emphasis on neutral evidence-based policy-making? In addition, the papers analyse the causes and consequences of such politicisation. Furthermore, the contributions identify how politicisation and contestation limit the potential of the new ‘Better Regulation’ package to live up to its five core principles: effectiveness, coherence, participation, openness, and accountability.
The contributions to the special issue have investigated four central themes in the “Better Regulation” package, following the policy cycle:
- regulatory streamlining and cleaning-up of EU legislation;
- stakeholder consultations and impact assessment;
- policy evaluation and regulatory fitness and performance checks;
- alternative forms of regulation, implementation and enforcement.
With the new ‘Better Regulation’ agenda, the Commission has developed robust procedures to consult a broader set of stakeholders when preparing legislation, engage in systematic IAs in all policy areas and link policy evaluation to subsequent policy formulation. As the articles in this special issue have shown, however, politics frequently trumps procedures. To begin with, there are contradictions among some of the priorities of the ‘Better Regulation’ package, particularly, between the aims to streamline, prioritise, and rationalise policy-making and the ambition to ensure meaningful civil society consultation. Furthermore, greater responsiveness to stakeholders, optimised evidence collection and analysis do not eliminate the need to make difficult political choices about the policy goals that the EU wants to achieve. ‘Better Regulation’ has, therefore, implications for winners and losers when policy changes. All in all, we have observed enduring politicisation of policy-making despite the enhanced procedures for evidence-based policy making, with tools and procedures having the potential to be used according to political logics. In conclusion, it can be stated that despite its neutral evidence-based and seemingly a-political policy-making goals, the ‘Better Regulation’ agenda does not eliminate the enduring relevance of making political choices across the policy cycle. At a time of political turmoil in the EU, it remains a significant challenge to reconcile business-friendly policy objectives such as cutting red tape with making policy more responsive to the wishes of citizens and civil society and at the same time subject to a strict cost-benefit analysis.
[1] The rationale, aims and supporting documents of the “Better Regulation” package are available at: <https://ec.europa.eu/info/law/law-making-process/better-regulation-why-and-how_en#need>.
[2] Government of the Netherlands, ‘European where necessary, national where possible. Testing European legislation for subsidiarity and proportionality’, 21 June 2013, available at: <https://www.government.nl/latest/news/2013/06/21/european-where-necessary-national-where-possible>; Government of the UK, ‘Review of the balance of competences between the United Kingdom and the European Union – subsidiarity and proportionality report’, 27 March 2014, available at: <https://www.gov.uk/government/consultations/subsidiarity-and-proportionality-review-of-the-balance-of-competences>.
[3] Communication from the Commission of 25 July 2001 ‘European governance – A white paper’, COM(2001) 428 final – Official Journal C 287 of 12.10.2001.
[4] Interinstitutional agreement on better law-making OJ C 321 31.12.2003, pp. 1–5.
[5] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results – An EU agenda, COM(2015) 215 final.
Mariolina Eliantonio is an Associate Professor in European Administrative Law at the Maastricht Center of European Law at Maastricht University. She holds a PhD in European Administrative Law from Maastricht University. Her research is focused on the enforcement of European law before national and EU courts. She does research specifically on the theme of access to court before national and European courts (with a special focus on environmental matters), on the Europeanisation process of national procedural administrative law and on the judicial review of the new modes of governance.
Aneta Spendzharova is an Assistant Professor at Political Science Department at Maastricht University since September 2008. She holds a Ph.D. in Political Science from the University of North Carolina – Chapel Hill, USA. Before coming to Maastricht, Aneta was post-doctoral researcher at the Institute for Advanced Studies – Vienna. Her research interests are in the areas of Regulatory Governance in the European Union and Central and Eastern Europe, and Research Methodology.