On 3rd November 2021, the European Commission published the Better Regulation guidelines.
As well known, the Better Regulation guidelines set out the principles that the European Commission recommends to be followed in the preparation of new initiatives and proposals and the management and evaluation of existing policies. These guidelines apply to all stages of the policymaking cycle.
They are based on the key aspects presented in the Communication “Better Regulation - Joining forces to make better laws” and are intended as internal instructions for Commission staff to increase the quality of regulation. In the same document, it is made clear that they cannot be interpreted as legally binding but should be read and applied by all Commission officials involved in regulatory activities and by managers responsible for quality control and resource allocation.
In particular, the document, following a brief introduction, analyses the key concepts and principles of Better Regulation (Ch.1), the issue of stakeholder consultation (Ch.2), evaluation - including suitability checks (Ch.3), impact assessment (Ch.4) and implementation, transposition and enforcement of EU law (Ch.5).
In the first chapter, the document focuses on how the guidelines should be applied and highlights the scope of setting out requirements for the key steps in the policy cycle. Moreover, it is stated that these should be used proportionally. It may not be possible or appropriate to follow each step presented in the guidelines in particular cases, as an emergency requires a rapid response. Better Regulation requires key concepts and principles, such as a comprehensive approach, coherent approach, a proportionate approach, a participative approach, an evidence-based approach, transparency, and learning from experience. In the same chapter, as “Better Regulation in practice”, the document focuses on an overview of implementing guidelines for “one in, one out” and on the quantification of impacts, including costs and benefits (p. 7). Besides, it also represents an analysis that covers the main instruments of Better Regulation in the policy cycle. For each phase, there are relevant principles, objectives, tools and procedures for EU evidence-informed policies: a) forward planning and political validation; b) stakeholder consultation; c) evaluation and fitness checks; c) impact assessment; d) quality control; compliance support and implementation.
The second chapter highlights the relevance of stakeholder consultation. Indeed, it is stated as consulting stakeholders, taking account of their views, practical experience and data will improve the understanding of issues at stake and lead to better quality and credibility of the initiatives. The document presents general principles and minimum standards for consultation, such as participation, openness and accountability, effectiveness, coherence, clarity, targeting, outreach, sufficient time for participation and publication of contributions and results (p. 14). Besides, the guidelines highlight that stakeholders should be consulted or feedback requested when preparing an initiative accompanied by an impact assessment and public consultation are highly recommended to evaluate policies and programmes of broad public interest and for fitness checks (p. 15). A relevant point expressed in the document is the need to map stakeholders, by “consulting broadly consult broadly and transparently among stakeholders, who might be concerned by the initiative, seeking a whole spectrum of views in order to avoid bias or skewed conclusions promoted by specific constituencies (‘regulatory capture’)”, both through public and targeted consultations.
The third chapter focuses on evaluation as an evidence-based assessment of the extent to which an intervention is effective, efficient, relevant, coherent and has EU added value. Moreover, an evaluation must go beyond "what" happened, also focusing on the “why” it happened, and "how much" has changed. The documents also focus on how sufficient time needs to be allocated to ensure that the evaluations follow the guidelines and on fitness check as “comprehensive evaluation of two or more interventions usually in the same policy area related in some way” … “thus justifying a jont analysis”.
The fourth chapter centres on the impact assessment topic. The guidelines highlight that IA concerns gathering and analysing evidence to support policymaking and “it involves verifying the existence of a problem, identifying its underlying causes, assessing whether EU action is needed, and analysing the advantages and disadvantages of available solutions”. The document states that an IA is mandatory for initiatives that might have significant economic, environmental or social impacts and in which the Commission can choose among various policy options. The IA report should be published on the “Register of Commission Documents” and the “Have Your Say” web portal. More relevant, the document highlights a series of fundamental principles and questions that an impact assessment should answer (pp. 31-34) and the importance of the explanatory memorandum (p. 36).
The last chapter focuses on the need to anticipate implementation problems by setting up an implementation strategy. It should contain all the steps that the Commission shall take when monitoring compliance. The documents also highlight the importance of compliance promotion tools to prevent or correct breaches of EU law (p. 38) and key questions that a monitoring system must address (p. 40). The latter should assess potential difficulties affecting implementation and application by the Member States, National courts or other local or regional authorities or enforcement strategies.
The Better Regulation guidelines are fundamental since they provide valuable insights into the EU policymaking process from the perspective of Commission officials.
Following the publication of the guidelines, the toolbox should soon be updated as well. The latter will provide operational and detailed guidance.
Luca Megale
is a PhD Student at LUMSA University of Rome
and tutor of the European Master in Law and Economics - EMLE (Rome term).