A taste of its own medicine: Assessing the impact of the EU Better Regulation Agenda

Author:Sacha Garben
DOI:http://doi.org/10.1111/eulj.12354
Publication Date:01 Mar 2020
KALEIDOSCOPE
A taste of its own medicine: Assessing the impact
of the EU Better Regulation Agenda
Sacha Garben
*
Abstract
This article performs an impact assessmentof the EU Better Regulation Agenda. It considers
whether there is a clear definition of the problems that the EU Better Regulation seeks to address,
the evidence base, whether Better Regulation more effectively responds to those problems than
alternative options, and what the costs, benefits and broader impacts of the the Agenda may be.
The analysis suggests that while the Better Regulation Agenda generally promotes an open yet
rational decision-making process based on sound problem definitions and aiming at targeted solu-
tions calibrated for optimum efficiency and effectiveness, some of its own problem assumptions
remain unproven, it possesses contradictory traits and risks being counter productive. Furthermore,
while EU Better Regulation may have benefits, it also entails significant costs that should not be
overlooked. This assessment reveals the complex and multifaceted nature of EU Better Regulation,
and the need to hold it to its own standards.
1|INTRODUCTION
The Better Regulation Agenda has been around for quite some time, although it has known various different mani-
festations.
1
Like many national governments around the world and supported by international organisations such as
the Organisation for Economic Co-operation and Development (OECD), over the past few decades, the EU has con-
sistently engaged in such regulatory review exercises, examining the quality and quantity of EU regulation, generally
with a view to increasing the former and decreasing the latter.
2
Better Regulation has been given a particular promi-
nence in the EU system compared to elsewhere. Perhaps this is because of an expectation that in the EU, the pres-
ence of a great number of players in the decision-making process will mean that regulatory burdens are accumulated
May Joana Mendes and Harm Schepel, the former Editors-in-Chief who accepted these manuscripts for publication, be thanked for their work and
contribution to the European Law Journal.
*Professor of EU Law, College of Europe, Bruges. The views expressed in this paper are entirely personal and do not represent those of the European
Commission. The paper builds on the ideas presented in S. Garben, An Impact Assessmentof EU Better Regulationin S. Garben and I. Govaere (eds.),
The EU Better Regulation Agenda: A Critical Assessment (Hart Publishing, 2018), 217.
1
See earlier initiatives such as the Commission Staff Working Document, Making Single Market Rules More Effective, Quality in Implementation and
Enforcement,SEC (1998) 903, 35; Better Law-Makingin the early 2000s: European Commission Communication, European Governance: Better Law-
Making,COM (2002) 275 final; and Smart Regulationin the late 2000s: European Commission Communication, Smart Regulation in the European Union,
COM (2010) 543 final.
2
C. Scott, Integrating Regulatory Governance and Better Regulation as Reflexive Governancein S. Garben and I. Govaere (eds.), The EU Better Regulation
Agenda: A Critical Assessment (Hart Publishing, 2018), 13.
Received: 2 May 2019 Revised: 24 July 2019 Accepted: 22 January 2020
DOI: 10.1111/eulj.12354
Eur Law J. 2020;26:83103. wileyonlinelibrary.com/journal/eulj © 2020 John Wiley & Sons Ltd. 83
unusually eagerly by way of political compromise.
3
Or perhaps it is because of a fear that the EU's greater distance
(compared to Member States) to the subjects of its rules make it prone to adopt inadequate regulation.
4
It may
instead, or furthermore, be a reaction to the sustained Eurosceptic myth creation in some Member States alleging a
rule sickness in the EU. Another explanation may simply be that the EU is, because of its regulatory mandate and its
core responsibility to create an internal market, the main locus for market regulation in Europe, thereby inevitably
inviting the scrutiny of those subject to these rules.
Whatever the reasons for its enduring prominence in EU policymaking, the EU Better Regulation Agenda is not
a passing fad, and much more than some inconspicuous soft law policy initiative, as also the recent Commission
Communication Better RegulationTaking Stock and Sustaining our Commitment
5
illustrates. In the words of Com-
mission Vice-President Frans Timmermans: [b]etter regulation is now embedded in the DNA of European decision
making.
6
Indeed, over the past decades, it has become a semi-permanent feature of the EU legal and political land-
scape. It has become increasingly institutionalised, by means of the creation of independent bodies such as the Regu-
latory Scrutiny Board and inter-institutional agreements. The EU legislative process is increasingly conditioned by it,
through Better Regulation's requirements of ex ante and ex post evaluation, the way it structures and informs the
Commission's exercise of its monopoly on legislative initiative, and in its application to the Parliament and Council in
their capacity as the European Legislator. It has become an important instrument in the CJEU's judicial review of EU
legislation, and even if the Court has confirmed that the EU institutions are not always obliged to carry out an impact
assessment, it has also stated that they are a step in the legislative process that, as a rule, must take place if a legisla-
tive initiative is liable to have significant economic, environmental or social implications.
7
This means that it has a
profound constitutional impact. As such, it is curious that in terms of general EU legal scholarship, Better Regulation
is still somewhat overlooked
8
and seems to remain largely the purview of scholars of regulation. This is regrettable,
because without an understanding of Better Regulation's intricacies, one cannot fully understand the contemporary
EU legislative process, and without an analysis of its position in (and impact on) the EU legal and political order, one
cannot fully understand the merits and risks of Better Regulation.
This article considers that one particularly useful analytical tool to unpack some of those legal and political intri-
cacies is to subject the Better Regulation Agenda to its own central methodology of impact assessment. Indeed, it is
not entirely clear whether this important measure itself passes the test that it imposes on other EU (legislative)
action. Furthermore, as the Better Regulation Agenda itself would contend, such a structured analytical assessment
is particularly useful to reveal the conceptual shortcomings, slippages and contradictions in a complex policy file,
such as Better Regulation. It should be clarified from the outset that a full, empirical and pluri-disciplinary impact
assessment lies beyond the scope of this single legal paper. Instead, therefore, we will seek to apply the core analyti-
cal model that can be distilled from Better Regulation's methodology, to tease out the various legal and political nar-
ratives that inform the Agenda and to understand how they interact. As such, this article will analyse (i) whether
there is a clear definition of the problems that the EU Better Regulation seeks to address as well as the evidence
base for the existence and extent of these problems, (ii) whether Better Regulation more effectively responds to
those problems than any alternative options, and (iii) what the costs, benefits and broader impacts of the (current
implementation of) the Agenda may be. This analysis is facilitated by the recent stocktaking exercise undertaken by
3
This is a main concern with cooperativefederal systems such as the EU, see: M. Greve, Against Cooperative Federalism(2002) 70 Mississippi Law
Journal, 557. On the EU's cooperative federalist nature, see R. Schütze, From Dual to Cooperative FederalismThe Changing Structure of European Law
(Oxford University Press, 2009).
4
As Halberstam notes, smaller jurisdictions can be more effective because local decision makers have a better grasp of the relevant local facts than would
actors at the central level of governance.D. Halberstam, Federalism: A Critical Guide(2011) University of Michigan Public Law Working Paper No. 251, 15.
5
Commission Communication, Better RegulationTaking Stock and Sustaining our Commitment,COM (2019) 178.
6
European Commission, Better Regulation Principles: At the Heart of the EU's Decision-making Process,IP/19/2117, Press Release of 15 April 2019.
7
Case C-482/17, Czech Republic v. European Parliament and Council of the EU, ECLI:EU:C:2019:1035, paras. 8384.
8
There are, of course, notable exceptions, such as (non-exhaustively) M. Dawson, Better Regulation and the Future of EU Regulatory Law and Politics
(2016) 53 Common Market Law Review, 12091236; the various contributions in the special issue on Better Regulation of European Public Law (2011) 17;
S. Weatherill, Better Regulation (Hart Publishing, 2007); and the various contributions in S. Garben and I. Govaere (eds.), The EU Better Regulation Agenda: A
Critical Assessment (Hart Publishing, 2018).
84 GARBEN

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