Publications

Over the last decade the Open Government Data movement has successfully highlighted the value of data and encouraged governments to open up information for reuse both inside, and outside the public sector. This Working Paper argues that governments now need to go further and put the role and value of data at the core of thinking about the digital transformation of government. A data-driven public sector (DDPS) recognises that data are an asset, integral to policy making, service delivery, organisational management and innovation. The strategic approach governments take to building a DDPS can have a positive impact on the results they deliver by promoting evidence-led policy making and data-backed service design as well as embedding good governance values of integrity, openness and fairness in the policy cycle.

Radical innovations and break-through technologies are desperately needed in solving to-day’s difficult societal challenges, such as those created by climate change or ageing demographics. However, addressing complex societal challenges requires elaborate systemic planning, determined investments and often also, visionary and brave decisions by the legislators and regulators. While radical innovation may bring much needed economic benefits and solutions to pressing societal challenges, they can also generate new risks and ethical dilemmas. Hence, today’s legislators are faced with difficult questions in trying to foresee an optimal legal framework, which would sufficiently leave space for and encourage new solutions, but at the same time would ensure safe conditions and fair benefits to everyone. In light of the above, increased attention is paid to developing innovation-friendly regulatory approaches and practices. The introduction of European Commission’s Innovation Principle, as well as several national initiatives (such as regulatory sandboxes and regulation roadmaps), are good examples of such development. So far, there has not been a common definition, nor a comprehensive framework to grasp the different aspects of innovation-friendly regulation approaches and practices. Developing such framework has been one of the main objectives in Finnish government commissioned study on “Impacts of regulation on innovation and new markets”. This Policy Brief presents some first findings and introduces a draft framework for innovation-friendly regulation.

The European Commission has recognised the importance of a more innovation-oriented EU acquis, gradually exploring the ways in which EU rules can support innovation. The ‘innovation principle’ was introduced to ensure that whenever policy is developed, the impact on innovation is fully assessed. However, as further discussed in this Study, the exact contours of the innovation principle have been shaped very gradually within the context of the EU better regulation agenda: originally advocated by industry in the context of the precautionary principle, the innovation principle has gradually been given a more articulate and consistent role, which aims at complementing the precautionary principle by increasing the salience of impacts on innovation during all phases of the policy cycle. This Study presents an evaluation of the current implementation of the innovation principle, limited to two of its three components, i.e. the Research and Innovation Tool included in the Better Regulation Toolbox, and the innovation deals. As a preliminary caveat, it is important to recall that the implementation of the innovation principle is still in its infancy, and thus the Study only represents a very early assessment of the extent to which the innovation principle is being correctly implemented, and whether changes would be required to make the principle more effective and useful in the context of the EU better regulation agenda. The main finding is that the innovation principle has the potential to contribute to the quality and future-proof nature of EU policy, but that significant changes and effort will be needed for this potential to fully materialise. The most evident areas for improvement are related to the lack of a clear legal basis, the lack of a widely acknowledged definition, the lack of awareness among EU officials and stakeholders, and the lack of adequate skills among those that are called to implement the innovation principle. As a result of these problems, the impact of the innovation principle on the innovation-friendliness of the EU acquis has been limited so far. The Commission should clarify in official documents that the Innovation principle does not entail a de-regulatory approach, and is not incompatible with the precautionary principle: this would also help to have the principle fully recognised and endorsed by all EU institutions, as well as by civil society, often concerned with the possible anti-regulatory narrative around the innovation principle in stakeholder discussions. Apart from clarifications, and further dissemination and training, major improvements are possible in the near future, especially if the innovation principle is brought fully in line with the evolving data-driven nature of digital innovation and provides more guidance to the Commission on how to design experimental regulation, including inter alia so-called ‘regulatory sandboxes’. Finally, the Commission should ensure that the innovation principle is given prominence with the transition to the Horizon Europe programme, in particular due to the anticipated launch of ‘missions’ in key domains.

Cross-sectorial networks of regulators are starting to be adopted as a horizontal coordination mechanism. UKRN is one of the first horizontal regulators’ platform, starting its activity in 2014, and now focusing on extending sectorial disclosure-regulation by developing cross-sectorial performance scorecard aimed to compare and assess the customer experience of companies in different sectors (Antonio Manganelli, Rassegna Osservatorio Air n. 4/2019).

AGCOM, AGCM and the Italian Data Protection Authority jointly adopted policy recommendations to contain the power deriving from the use of big data in digital markets. The document, which is the result of a wide survey, not only proposes concrete solutions to counter the “power of data” of the great digital operators, but also outlines a stronger and more active role of the public sector in the regulation and free circulation of data (Matteo Falcone, Rassegna Osservatorio AIR n. 4/2019).

About ex-post review of legislation and better regulation I. The ex-post review of legislation is a key part of the Commission’s Better Regulation policy. It is aimed at facilitating the achievement of public policy objectives at minimum cost and improving the added value of EU interventions. In 2015, the Commission strengthened its better regulation policy by launching the Better Regulation Agenda. How we conducted our audit II. In our audit, we assessed whether the EU system of ex-post review of legislation had been properly planned, implemented, managed and quality-controlled, thereby contributing effectively to the Better Regulation cycle. III. The audit covered ex-post reviews of legislation carried out between 2013 and 2016 by four directorates-general of the Commission as well as all legislation and ex-ante impact assessments within the remit of those directorates-general adopted between 2014 and 2016. What we found IV. Overall, we concluded that the Commission’s current ex-post review system compares well to the situation in the majority of Member States. Regarding more specifically the evaluations, the Commission has designed a system which is, as a whole, well-managed and quality-controlled, thereby contributing effectively to the Better Regulation cycle. However, when it comes to reviews other than evaluations, we identified weaknesses. V. We found that review clauses and, to a lesser extent, monitoring clauses are widely used in EU legislation. However in the absence of common inter-institutional definitions and drafting guidelines, their content and therefore their expected outputs are not always clear. VI. While evaluations are generally carried out in line with legal requirements and good practices, this is less the case for the other reviews, to which the Better Regulation guidelines did not apply until 2017. We also identified shortcomings in the presentation of the methodology used and in the recognition of data limitations when applicable. 7 VII. We also found that ex-post reviews are publicly available and accessible and that the vast majority of them provide a clear conclusion and indicate next steps to be taken. The Commission systematically forwarded its reports on the ex-post reviews to the co-legislators (European Parliament and Council); the latter, however, seldom react to the Commission directly. Also, the ex-post reviews are not always used by the Commission when preparing ex-ante impact assessments. The inter-institutional agreement between the European Parliament, the Council and the Commission on better law-making, which provides provision on the review of existing laws, is not binding. VIII. Finally, we found that the rationale of the REFIT programme is unclear, as are the criteria by which individual initiatives have been labelled as REFIT. At the same time, the guidelines present REFIT as a specific programme. This raises questions as to its current nature and added value. What we recommend IX. On the basis of these observations, we make several recommendations to the Commission and one to the Regulatory Scrutiny Board.