Publications

The Recommendation aims at further strengthening regulatory governance by helping to update and enhance relevant instruments, processes, and institutions. More precisely, it seeks to provide a conceptual framework and relevant guidance for using and adapting regulatory policy and governance in the face of the regulatory challenges and opportunities arising from innovation.

It is human to make mistakes. It is indisputably human to make mistakes while filling in tax returns, benefit applications, and other government forms which are often tainted with complex language, requirements, and short deadlines. However, the unique human feature of forgiving these mistakes is disappearing with the digitization of government services and the automation of government decision-making. While the role of empathy has long been controversial in law, empathic measures have helped public authorities balance administrative values with citizens’ needs and deliver fair and legitimate decisions. The empathy of public servants has been particularly important for vulnerable citizens (e.g., disabled individuals, seniors, underrepresented minorities, low income). When empathy is threatened in the digital administrative state, vulnerable citizens are at risk of not being able to exercise their rights because they cannot engage with digital bureaucracy.

This Article argues that empathy, the ability to relate to others and understand a legal situation from multiple perspectives, is a key value of administrative law which should be safeguarded in the digital administrative state. Empathy can contribute to the advancement of procedural due process, equal treatment, and the legitimacy of automation. The concept of administrative empathy does not aim to create arrays of exceptions, imbue law with emotions and individualized justice. Instead, this concept suggests avenues for humanizing digital government and automated decision-making through the complete understanding of citizens’ needs.

This Article explores the role of empathy in the digital administrative state at two levels: First, it argues that empathy can be a partial response to some of the shortcomings of digital bureaucracy. At this level, administrative empathy acknowledges that citizens have different skills and needs, and this requires the redesign of pre-filled application forms, government platforms, algorithms, as well as assistance. Second, empathy should also operate ex post as a humanizing measure which can help ensure that administrative decision-making remains human. Drawing on comparative examples of empathic measures employed in the United States, the Netherlands, Estonia, and France, the academic contribution of this Article is twofold: first, it offers an interdisciplinary reflection on the role of empathy in administrative law and public administration for the digital age that seeks to advance the position of vulnerable citizens; second, it operationalizes the concept of administrative empathy.

Artificial Intelligence (AI) is a peculiar case of General Purpose Technology that differs from other examples in history because it embeds specific uncertainties or ambiguous character that may lead to a number of risks when used to support transformative solutions in the public sector. AI has extremely powerful and, in many cases, disruptive effects on the internal management, decision-making and service provision processes of public administration. Over the past few years, the European Union and its Member States have designed regulatory policies and initiatives to mitigate the AI risks and make its opportunities a reality for national, regional and local government institutions. ‘AI Watch’ is one of these initiatives which has, among its goals, the monitoring of European Union’s industrial, technological, and research capacity in AI and the development of an analytical framework of the impact potential of AI in the public sector. This report, in particular, follows a previous landscaping study and collection of European cases, which was delivered in 2020. This document first introduces the concept of AI appropriation in government, seen as a sequence of two logically distinct phases, respectively named adoption and implementation of related technologies in public services and processes. Then, it analyses the situation of AI governance in the US and China and contrasts it to an emerging, truly European model, rooted in a systemic vision and with an emphasis on the revitalised role of the member states in the EU integration process, Next, it points out some critical challenges to AI implementation in the EU public sector, including: the generation of a critical mass of public investments, the availability of widely shared and suitable datasets, the improvement of AI literacy and skills in the involved staff, and the threats associated with the legitimacy of decisions taken by AI algorithms alone. Finally, it draws a set of common actions for EU decision-makers willing to undertake the systemic approach to AI governance through a more advanced equilibrium between AI promotion and regulation. The three main recommendations of this work include a more robust integration of AI with data policies, facing the issue of so-called “explainability of AI” (XAI), and broadening the current perspectives of both Pre-Commercial Procurement (PCP) and Public Procurement of Innovation (PPI) at the service of smart AI purchasing by the EU public administration. These recommendations will represent the baseline for a generic implementation roadmap for enhancing the use and impact of AI in the European public sector.

This paper considers briefly theoretical foundations of the links between regulation, “regulatory delivery” and compliance, and then a case study of construction safety regulation in Britain, and comparative data on occupational safety inspections and outcomes in Britain, Germany and France (European Union member states with generally comparable OSH regulations but very different regulatory delivery). It studies the use of behavioral approaches by the Health and Safety Executive (HSE) in Great Britain, where engagement with regulated entities, managers, workers and other stakeholders to improve OSH is central. It provides a brief analysis of how approaches to regulatory delivery based on behavioral insights can result in greater efficiency, increased compliance and more positive public outcomes. These approaches differ from a traditional “deterrence-based” conception of regulatory enforcement limited to finding and punishing violations. Evidence suggests that such behavior-focused regulatory delivery can be both more efficient and more effective.

Digital platforms have strengthened their power more and more by collecting and exploiting data processed through algorithms. Economic and social interactions are increasingly shaped by the technology and software. Such a reliance on digital technologies has brought about the tendency of private subjects (but also of public institutions) to replace traditional norms and rules with regulations based on the code (code is law). From this perspective digital giants are no longer market participants. Rather they are market makers and exert regulatory control over the terms which define the positions of commercial and final users. Moreover they aspire to displace more governmental and public roles over time, performing functions and tasks normally vested in public authorities such as judicial bodies and courts. This shift in power towards private actors has led to an expanding privatization in the field of individuals’ rights as well. Algorithms are replacing the traditional functions of law embedding private values and interests in the technology. They represent the key of digital platforms’ power. Therefore regulators should ‘capture’ the algorithm to steer its effects and thanks to the technology be able to introduce regulatory principles into the design of the digital code.

It is generally agreed that digital markets have peculiar characteristics that are difficult to capture using traditional market analysis tools. For some, antitrust and regulatory authorities should intervene as little as possible and not hinder the flow of innovation taking place in these markets. However, the prevailing orientation, both in USA and in Europe, recognizes the need for policies to contrast the excessive power of the “web giants”. In this context, special antitrust rules and new conceptual tools are deemed necessary, starting with overcoming the traditional concept of the relevant market. The author believes that a similar result could also be achieved through an evolutionary interpretation of current antitrust rules.

This report looks at how data analysis techniques and information management tools can help make regulatory inspections more efficient through better risk analysis, targeting and co-ordination. It is based mainly on work conducted by the OECD in Italy (funded by EC DG REFORM) to pilot the use of machine learning techniques and data-driven analysis for risk assessment and to improve information systems integration. The pilots, undertaken in the regions of Campania, Lombardy and Trentino,, cover several regulatory domains – food safety, occupational safety, and environment. They show how better use and management of data can improve inspection systems even within a relatively short timeframe. The approach is based on improving the identification and rating of risk factors, so as to focus regulatory efforts on those businesses or establishments with the highest risks.
This report was approved by the Regulatory Policy Committee at its 24th Session on 21st April 2021 and prepared for publication by the OECD Secretariat.

The 2021 edition includes input indicators on public finance and employment; process indicators include data on institutions, budgeting practices, human resources management, regulatory governance, public procurement, governance of infrastructure, public sector integrity, open government and digital government. Outcome indicators cover core government results (e.g. trust, political efficacy, inequality reduction) and indicators on access, responsiveness, quality and satisfaction for the education, health and justice sectors. Governance indicators are useful for monitoring and benchmarking governments’ progress in their public sector reforms.

Artificial Intelligence has great potential in all areas of our lives, but it also presents risks for fundamental rights and the rule of law. The European Union is trying to create a balanced regulatory framework between the pros and cons of AI. On 21 April 2021 EU published a comprehensive proposal for an AI regulation, which should protect and promote European rights and values, without impeding the technological, industrial, and commercial development of AI. This article aims to give a first analysis of the proposal, focusing on its main positive and negative aspects.

Established domestic regulatory frameworks are reaching their limits to cope with today’s increasing cross-boundary policy challenges. Only united action can effectively navigate the rapid growth of economic integration and interdependencies, particularly driven by innovative technologies. Yet, contemporary regulatory frameworks tend to build on national jurisdictional boundaries constraining common solutions to meet the growing transboundary nature of policy challenges. In the aftermaths of global crises, such as the 2008 financial crisis or the COVID-19 pandemic, which exposed the vulnerabilities of global health, economic and governance systems, it is time for a true paradigm shift towards more systematic consideration of the international environment in domestic regulatory frameworks. The OECD Best Practice Principles on International Regulatory Co-operation provide practical guidance supporting policymakers and civil servants in adapting regulatory frameworks to the interconnected reality. They outline key elements in defining a dedicated whole-of-government strategy and governance structure, embedding international considerations throughout the domestic regulatory design, development and delivery, and leveraging bilateral, regional and multilateral international cooperation on regulatory matters to support national policy objectives. Compiling various ways of international regulatory cooperation and experiences from countries, the OECD Best Practice Principles on International Regulatory Co-operation provide the impetus for policymakers and civil servants in a variety of legal and administrative environments on how to promote quality and resilience of regulatory frameworks in times of an increasingly interconnected world.

Over the past three decades, cyberspace has gradually become an engine of unsustainable outcomes from an economic, social and environmental perspective. The European Commission has launched several new initiatives, in the attempt to restore public control over cyberspace, remedy the distributional imbalances generated by the rise of large-scale digital platforms, and promote Europe's digital sovereignty. The paper argues that only by embedding rules and values in “code” and preserving openness towards the rest of the world will the EU manage to achieve its desired goals. Current initiatives such as the data strategy, the AI regulation, the Digital Services Act and the European Cloud Federation appear still too sparse and uncoordinated to really deliver on Europe's ambition to lead the world in the sustainable use of technology.

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory schemes, and even undermine the rule of law. In this paper, we conduct the first systematic empirical investigation of the hidden world of unrules. Using a computational linguistic approach to identify unrules across the Federal Register, the Code of Federal Regulations, and the United States Code, we show that unrules are an integral and substantial feature of the federal regulatory system. Our analysis shows that, by several conservative measures, there exists one obligation-alleviating word for approximately every five to six obligation-imposing words in federal law. We also show that unrules are surprisingly unrestrained by administrative law. In stark contrast to administrative law’s treatment of obligation-imposing rules, regulators wield substantially more discretion in deploying unrules to alleviate regulatory obligations. As a result, a major form of agency power remains hidden from view and relatively unencumbered by law. Recognizing the central role that unrules play in our regulatory system reveals the need to reorient administrative law and incorporate unrules more explicitly into its assumptions, doctrines, and procedures.