unusually eagerly by way of political compromise.
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.
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 Regulation—Taking Stock and Sustaining our Commitment’
illustrates. In the words of Com-
mission Vice-President Frans Timmermans: ‘[b]etter regulation is now embedded in the DNA of European decision
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’.
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
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
This is a main concern with ‘cooperative’federal 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 Federalism—The Changing Structure of European Law
(Oxford University Press, 2009).
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.
Commission Communication, ‘Better Regulation—Taking Stock and Sustaining our Commitment’,COM (2019) 178.
European Commission, ‘Better Regulation Principles: At the Heart of the EU's Decision-making Process’,IP/19/2117, Press Release of 15 April 2019.
Case C-482/17, Czech Republic v. European Parliament and Council of the EU, ECLI:EU:C:2019:1035, paras. 83–84.
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, 1209–1236; 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).