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The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics Introduction to the Special Issue

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This special issue 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
  EDITORIAL The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics Introduction to the Special Issue *  Mariolina Eliantonio & Aneta Spendzharova **  AIntroduction In May 2015, the European Commission unveiled its new “Better Regulation”program, 1  designed to ensure that European Union (EU) laws and policies are pre ‐ pared, implemented and reviewed in an open and transparent manner, informedby evidence and supported by business and citizens. It demonstrates persistentattention to transparency in the preparation of laws, responsiveness to stake ‐ holders and the public and reliance on evidence-based policy-making. It alsoshows 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 *The special issue editors are grateful to the Centre for European Research in Maastricht (CERiM),the Stichting Universiteitsfonds Limburg (SWOL) and the Research Stimulation Fund of theFaculty of Arts and Social Sciences at Maastricht University for their financial support toconvene a research workshop on “The ‘Better Regulation’ Agenda: Achievements and Challenges Ahead,” held on 3-4 December 2015 in the Brussels Campus of Maastricht University. We wouldlike to thank the workshop participants for their excellent and insightful contributions. Wethank Christine Neuhold and Sophie Vanhoonacker for their valuable comments on the projectand encouragement.**Mariolina Eliantonio is Associate Professor of European Administrative Law at MaastrichtUniversity. Aneta Spendzharova is Assistant Professor of Political Science at MaastrichtUniversity.1The rationale, aims and supporting documents of the “Better Regulation” package are availableat: <https:// ec. europa. eu/ info/ law/ law -making -process/ better -regulation -why -and -how_ en#need>.2Government of the Netherlands, ‘European where necessary, national where possible’, 21 June2013, 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 competen ‐ ces 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>. European Journal of Law Reform 2017 (19) 1-2doi: 10.5553/EJLR/1387237020170191020013  Mariolina Eliantonio & Aneta Spendzharova “Better Regulation” has been extensively studied before, both at the Euro ‐ pean and national levels. 3  Specifically regarding the EU legal system, Radaellidescribed the initial “Better Regulation” package as a new type of meta-regula ‐ tion, which enabled policy-makers to combine diverse policy objectives in differ ‐ ent areas. 4  Furthermore, during the Barroso Commission, the Open Method of Coordination (OMC) received particular attention in the “Better Regulation”framework as a more flexible approach to policy-making in order to reach the Lis ‐ bon agenda priorities of “jobs and growth.” 5  Moreover, a growing body of EU gov ‐ ernance literature explored whether non-hierarchical governance modes such asexperimentalist governance 6  and reflexive governance 7  supported by the “BetterRegulation” package were better suited to organizing collective action than hier ‐ archical state-centered governance modes.Following up on the White Paper on Governance (2000), 8  and the Interinsti ‐ tutional Agreement on Better Law-Making (2003), 9  the renewed “Better Regula ‐ tion” agenda (2015) 10  aims to diminish the negative unintended consequences of political bargaining in the Council and the EU legislative triangle and to deliverbetter policies in the EU legal order, ultimately reinforcing the trust of Europeancitizens in the EU political processes and counteracting the perceived legitimacy crisis 11  for European integration. In order to achieve these overarching aims, the“Better Regulation” agenda shows a renewed attention towards evidence-based 3 See , for example, C. Radaelli, ‘Whither Better Regulation for the Lisbon Agenda’, Journal of Euro ‐  pean Public Policy , Vol. 14, No. 2, 2007, pp. 190-207; M. Kaeding, ‘In Search of Better Quality of EU Regulations for Prompt Transposition: The Brussels Perspective’, European Law Journal , Vol.14, No. 5, 2008, pp. 583-603; C. Radaelli & A. Meuwese, ‘Better Regulation in Europe: BetweenPublic Management and Regulatory Reform’, Public Administration , Vol. 87, No. 3, 2009, pp.639-654; C. Dunlop et al ., ‘The many uses of regulatory impact assessment: A meta-analysis of EU and UK cases’, Regulation and Governance , Vol. 6, 2012, pp. 23-45; A. Alemanno, ‘How MuchBetter Is Better Regulation? Assessing the Impact of the Better Regulation Package on the Euro ‐ pean Union – A Research Agenda’, European Journal of Risk Regulation , Vol. 6, No. 3, 2015, pp.344-356; S. Tombs, ‘Making Better Regulation, Making Regulation Better?’, Policy Studies , Vol.37, 2016, pp. 332-349.4Radaelli, 2007; see also  C. Radaelli & F. de Francesco, Regulatory Quality in Europe: Concepts, Meas ‐ ures and Policy Processes , Manchester, Manchester University Press, 2007.5S. Borrás & C. Radaelli, ‘The Politics of Governance Architectures: Creation, Change and Effectsof the EU Lisbon Strategy’, Journal of European Public Policy , Vol. 18, No. 4, 2011, pp. 463-484.6C. Sabel & J. Zeitlin, Experimentalist Governance in the European Union – Towards a new Architec ‐ ture , Oxford, Oxford University Press, 2010.7O. De Schutter & J. Lenoble, Reflexive Governance – Redefining the Public Interest in a PluralisticWorld  , Hart Publishing, 2010.8Commission Communication of 25 July 2001, COM(2001) 428 final (European governance −  A white paper).9Interinstitutional agreement on better law-making [2003] OJ C 321, 31.12.2003, pp. 1-5.10Commission Communication of 19 May 2015, COM(2015) 215 final (Better regulation for betterresults −  An EU Agenda).11K. Featherstone, ‘Jean Monnet and the “Democratic Deficit” in the European Union’, Journal of Common Market Studies , Vol. 32, 1994, pp. 149-170; A. Follesdal, ‘Survey Article: The Legitimacy Deficits of the European Union’, The Journal of Political Philosophy , Vol. 14, No. 4, 2006, pp.441-468; A. Follesdal & S. Hix, ‘Why There Is a Democratic Deficit in the EU: A Response toMajone and Moravcsik’, Journal of Common Market Studies , Vol. 44, No. 3, 2006, pp. 533-562. 4European Journal of Law Reform 2017 (19) 1-2doi: 10.5553/EJLR/138723702017019102001  The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics policy-making across the policy cycle. At the same time, the new “Better Regula ‐ tion” agenda maintains the economic focus of the preceding package in terms of rigorous cost-benefit evaluation of the expected policy outcomes through impactassessment (IA), openness to market solutions and an emphasis on ‘cutting redtape’ for businesses. 12  Alemanno has found a large degree of continuity, compared to the preceding“Better Regulation” package, in terms of intensive use of stakeholder consultationsystems, IAs and regulatory review, especially through boosting the REFIT evalua ‐ tion system. 13  The overall aim of the new package seems to be to optimize the useof existing systems and add a few new instruments. The question, however,remains whether, despite its lack of innovativeness vis-à-vis the previous pack ‐ age, the new “Better Regulation” agenda is able to function as the legitimacy-enhancing tool it aims to be. The “Better Regulation” agenda is also presented as apolitically neutral initiative, aimed at optimizing policy-making procedures. Yet,concerns have been raised that “Better Regulation” might hide “fundamentalpolitical and regulatory choices behind a language of ‘common sense’” and that“political preferences will be wrapped in the language of ‘evidence-based’ policy-making.” 14 The literature on the preceding “Better Regulation” package has raised impor ‐ tant questions that are still relevant for the new framework. For example, is itstill the case that “Better Regulation discourse is much more popular than BetterRegulation activities?” 15  According to Torriti’s analysis of 60 IAs across differentpolicy sectors, IAs are frequently used to strategically justify a regulatory inter ‐ vention to stakeholders and citizens. 16  Lofstedt has also found a strategic use of IAs as “lobbying tools” by different business and NGO interests, such as in thecase of the REACH directive. 17  This raises a concern about the extent to whichbusiness actors are still able to significantly shape EU legislation despite theintroduction of the new “Better Regulation” guidelines and tools. Additionally,Radaelli and Meuwese have identified deliberate opposition from member statesto protect domestic interests and avoid costly domestic adjustments during the 12C. Cecot et al ., ‘An Evaluation of the Quality of Impact Assessment in the European Union withLessons for the US and the EU’, Regulation & Governance , Vol. 2, No. 4, 2008, pp. 405-424.13Alemanno, 2015.14K. Wegrich, ‘Which Results? Better Regulation and Institutional Politics’, European Journal of RiskRegulation , Vol. 6, No. 3, 2015, p. 371.15C. Radaelli, ‘Diffusion Without Convergence: How Political Context Shapes the Adoption of Reg ‐ ulatory Impact Assessment’, Journal of European Public Policy , Vol. 12, No. 5, 2007, p. 940.16J. Torriti, ‘Impact Assessment in the EU: A Tool for Better Regulation, Less Regulation or LessBad Regulation?’, Journal of Risk Research , Vol. 10, No. 2, 2007, pp. 239-276; See also  Dunlop etal ., 2012.17R.E. Lofstedt, ‘The ‘Plateau-ing’ of the European Better Regulation Agenda: An Analysis of Activi ‐ ties Carried out by the Barroso Commission’, Journal of Risk Research , Vol. 10, No. 4, 2007, pp.423-447. European Journal of Law Reform 2017 (19) 1-2doi: 10.5553/EJLR/1387237020170191020015  Mariolina Eliantonio & Aneta Spendzharova implementation of EU legislation. 18  Are member states still able to strategically oppose and undermine the implementation of EU legislation?Highlighting another important trend, Radaelli has pointed out the growingpoliticization of the technocratic nature of the EU since the ratification of theTreaty of Maastricht, given the proliferation of working groups, standardizationbodies and committees of experts in EU policy-making. 19  On the one hand, politi ‐ cization is a sign that the output of EU policy-making is more visible for citizens 20 and, therefore, the EU is becoming more similar to national political systems. Onthe other hand, “the problem of controlling regulatory bureaucracies and policy experts will not be solved automatically as time goes by” 21  and regulatory bodiesshould take into account the presence of politicization in the policy process.Radaelli has stressed that “the conclusion is not that technocracy has disappearedin the EU, nor that depoliticization is feasible and desirable, but that expertise isoperating in an increasingly politicized environment.” 22  Dawson takes the argu ‐ ment even further by suggesting that politicization may undermine the attemptsto introduce more regulatory rationalization and vice versa. 23  The articles in thiscollection examine the relevance of these insights in the new EU “Better Regula ‐ tion” package.This special issue takes an interdisciplinary approach, bringing together legaland political science perspectives. Taking stock of the literature on “Better Regu ‐ lation” and the latest policy developments, the collection examines the conse ‐ quences of the new “Better Regulation” agenda for law and policy-making in theEuropean Union, with the aim of answering one overarching research question: isthere evidence of enduring politicization despite the emphasis on neutral evi ‐ dence-based policy-making? Additionally, the papers analyze the causes and con ‐ sequences of such politicization. Furthermore, the contributions identify howpoliticization and contestation limit the potential of the new “Better Regulation”package to live up to its five core principles: effectiveness, coherence, participa ‐ tion, openness and accountability.In the following sections, the main findings of the articles contained in thisspecial issue will be summarized in order to answer the overarching researchquestion concerning the enduring politicization of the new “Better Regulation”package. The contributions investigate four central themes in the “Better Regula ‐ tion” package, following the policy cycle: 18Radaelli & Meuwese, 2009; C. Radaelli, ‘Measuring Regulatory Quality? No Thanks (but Why Not?)’, European Journal of Risk Regulation , Vol. 3, No. 1, 2012, pp. 108-112; A. Meuwese, ‘Regula ‐ tory Scrutiny in Transition’, European Journal of Risk Regulation , Vol. 6, No. 3, 2015, pp. 359-360.19C. Radaelli, ‘The Public Policy of the European Union: Whither Politics of Expertise?’, Journal of European Public Policy , Vol. 6, No. 5, 1999, p. 760.20A. Renda, ‘Too good to be true? A quick assessment of the European Commission’s new BetterRegulation Package’, CEPS Special Report No. 108/2015 , 2015, available at: <https:// www. ceps. eu/system/ files/ SR108AR_ BetterRegulation. pdf>.21Radaelli, 1999, p. 771.22  Ibid  .23M. Dawson, ‘Better Regulation and the Future of EU Regulatory Law and Politics’, Common Mar  ‐ ket Law Review , Vol. 53, No. 5, 2016, p. 1213. 6European Journal of Law Reform 2017 (19) 1-2doi: 10.5553/EJLR/138723702017019102001  The European Union’s New “Better Regulation” Agenda: Between Procedures and Politics 1regulatory streamlining and cleaning-up of EU legislation;2stakeholder consultations and impact assessment;3policy evaluation and regulatory fitness and performance checks;4alternative forms of regulation, implementation and enforcement. BTheme 1: Regulatory Streamlining and Cleaning-Up of EU Legislation The new “Better Regulation” agenda gives a prominent role to a series of simplifi ‐ cation initiatives in order to improve and streamline EU legislation. Most meas ‐ ures fall within the scope of changes to existing law, ranging from codificationand recasting to repeal, review/sunset clauses and revision. The Commission hasemphasized that pending legislation or legislative proposals will be withdrawn if found to be obsolete or if they are no longer in line with the EU policy objectives. As a result, there has been a visible decrease in the number of legislative acts pre ‐ pared for adoption by the European Parliament and the Council under the ordi ‐ nary legislative procedure. The total number declined from 159 in 2011 to 48 in2015. 24  Furthermore, the Annual Work Programs of the Juncker Commissionhave become more streamlined: there were 100 new priority initiatives and pack ‐ ages in 2014 and only 23 new initiatives in both 2015 and 2016. 25 The Commission has introduced a new Regulatory Scrutiny Board (RSB),which replaced the Impact Assessment Board. According to the Commission, thecomposition of the Board, including external members, will allow it to deliverimpartial opinions on the basis of rigorous analysis. The new Board will have astrengthened role in the European policy process and a broader mandate to assessthe quality of the IAs that inform decision-making. In 2016, the RSB issued opin ‐ ions on 60 IAs and about two in five were negative the first time around. 26  Shouldthe Commission decide to take action in the absence of an adequate supportingIA, it will have to explain why publically. In contrast to the common practice inthe past, the Board will also check major policy evaluations and ‘fitness checks’ of existing legislation. In 2016, the Board formally considered 7 evaluations andread 15 more that were annexed to IAs, but it did not issue positive or negativesummary ratings on evaluations. 27 The current focus on streamlining and eliminating redundancies rests on theassumption that rational policy design is feasible and realistic. It is assumed thatregulatory IAs will be helpful in identifying the most desirable policy optionsbefore the adoption of legislation. This conjecture, however, is challenged by recent work on polycentric governance systems which shows that when multipleactors are in charge of designing and implementing policy, there is, inevitably,some degree of incoherence, overlap and redundancy. For example, insights fromthe literature on policy design in financial sector regulation suggest that complex 24Commission Communication of 14 September 2016, COM(2016) 615 final, pp. 3-4.25  Ibid  .26European Commission, ‘Annual Report of the Regulatory Scrutiny Board 2016’, available at:<https:// ec. europa. eu/ info/ sites/ info/ files/ 2016 -rsb -report_ en. pdf>, p. 7.27  Ibid  . European Journal of Law Reform 2017 (19) 1-2doi: 10.5553/EJLR/1387237020170191020017
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