Is the medicine right?

Author:Gabriella Meloni
DOI:http://doi.org/10.1111/eulj.12368
Publication Date:01 Mar 2020
KALEIDOSCOPE
Is the medicine right?
Gabriella Meloni
*
Abstract
Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any
regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thor-
ough definition of the costs and the benefits deriving from its application or is it enough to provide
a few key insights to perform it? Is the BRA really so ideological, deriving from a liberal analytical
framework that considers no regulation/state interventionas the preferred option? Is regulatory
quality an issue that cannot realistically be solved? Does the principle of subsidiarity as a policy
objective need some revision? Several questions come to mind when reading a very thought-
provoking article that is very critical of the BRA but that in the end recognises some of its main
qualities.
The Better Regulation Agenda (BRA) has played a major role in shaping the EU policy process in recent years,
prompting regular regulatory review exercises that have contributed to the definition of the Union's legislative
framework as it is today.
1
Regulatory experts have debated about its costs and benefits at length but none has sub-
mitted the BRA to its own method, as does the article published here: A Taste of Its Own Medicine: Assessing the
Impact of the EU Better Regulation Agenda(hereafter the article).
2
This is a thought-provoking exercise that high-
lights some of the main features of a system of regulatory management that has long been accepted as mainstream
orthodoxy and whose criticism has aimed at improving it, but has hardly shaken its foundations.
The article here published seems to support a more radical view of the BRA, most of all when it argues that it
implicitly adheres to an economically liberal analytical framework
3
and indicates that the agenda might be counter-
productive when tackling some of the main problems it addresses. Following the analytical method promoted by the
BRA itself,it tries, first of all, to understandif there is a clear definitionof the problems the agendawants to address, as
well as evidence fortheir existence. The agenda is thuschallenged on its own territory and asked to answer the same
preconditionsit requires for any regulatoryaction. This is certainly an intriguing method to teaseout the various legal
and politicalnarratives that inform the agenda.
4
However is thisanalytical framework fitfor purpose? It seems to over-
look the distinction betweenmethods and means. If the adoptionof a regulatory action is themeans for the solution of
a problem, theBRA sets out the method that the regulator has to followto devise his intervention.
*
Consultant, formerly Policy Analyst at the Regulatory Reform Division of the OECD's Directorate for Public Governance and Territorial Development.
1
Commission Communication Better Regulation Taking stock and sustaining our commitment,COM (2019)178 and European Commission, Better
Regulation principles at the heart of the EU's decision-making process,IP/19/2117, Press release of 15 April 2019.
2
The article rightly underlines, however, that, if regulation specialists have extensively studied the BRA, the general EUlegal scholarship has overlooked it
with only some notable exceptions. See: A taste of its own medicine note(2020), note 8, at 2.
3
See ibid. (2020), at 5.
4
See ibid. (2020), at 2.
DOI: 10.1111/eulj.12368
104 © 2020 John Wiley & Sons Ltd. Eur Law J. 2020;26:104107.wileyonlinelibrary.com/journal/eulj

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