From Impact Assessment to the Policy Cycle: Drawing Lessons from the EU’S Better-Regulation Agenda
AbstractThe European Union launched its first comprehensive better-regulation agenda in 2002 and has since then been constantly modifying and improving its toolkit aimed at guaranteeing the quality of its legislation. The first better-regulation agenda followed the pioneering experience of some of its member states and introduced a formal procedure of ex ante impact assessment (IA) as well as minimum criteria for stakeholder consultation.1 Different variables explain the rise of EU-level IA, such as reactions to the overuse of the precautionary principle in risk analysis and health policy (especially in chemicals and tobacco);2 pressure from finance ministers in countries such as the U.K. and the Netherlands to introduce evidence-based procedures in policy formulation, thus increasing accountability;3 and organizational developments within the European Commission, with an expansion to regulatory policy of tools originally crafted for sustainable development policies.4 The EU IA model was introduced together with a communication aimed at simplifying and improving the regulatory environment and promoting “a culture of dialogue and
participation” within the EU legislative process.5 As a result, the commission decided to integrate all forms of ex ante evaluation and various tests by building an integrated impact-assessment model, to enter into force on Jan. 1, 2003.6 This model was tasked with the heavy responsibility of ensuring that adequate account was taken, at an early stage of the regulatory process, of both the competitiveness and sustainable-development goals, which ranked among the top priorities on the EU agenda. Over the past 14 years, the better-regulation toolkit of the European Commission has been strengthened from a methodological standpoint, and expanded into a more comprehensive system that involves ex ante IAs, ex post evaluations, “fitness checks” focused on clusters of laws, and cumulative cost assessments that address specific industry sectors. At the same time, the system gradually involved other institutions, such as the European Parliament (especially from 2012) and, to a lesser degree, the Council. And in May 2015, the European Commission further re-launched the system with a much stronger emphasis on ex ante political validation of proposals, stakeholder consultation at all phases of the policy process, and comprehensive, well-structured retrospective reviews. The European Commission has completed more than 1,000 IAs since 2003 and this provides a solid basis for observing the main virtues and challenges of the system as it has evolved to date. This paper looks at the lessons that can be drawn from the EU experience and highlights the challenges that have been successfully addressed and the ones that still remain unsolved. In discussing challenges, reference will be made to other legal systems, such as those in the United States, Canada, Australia and the United Kingdom. The paper also discusses the main novelties introduced by the recently adopted new EU Better Regulation Package, as well as the content of the proposed new Inter-Institutional Agreement on Better Lawmaking, both presented by the European Commission on May 19, 2015. Section 1 of the paper analyzes the current role played by major EU institutions in better lawmaking and aspects of the current inter-institutional agreement that would be worth reconsidering. Key issues include the use of ex ante impact assessments in major EU institutions; the frequency, timing and relevance of stakeholder consultation throughout the policy process; problems related to the ex post evaluation, fitness checks and other forms of analyses of the stock of legislation (e.g., cumulative cost assessments). Section 2 focuses on methodology and discusses the taxonomy of costs and benefits that is now the basis for both ex ante impact assessments and ex post evaluations, including fitness checks and cumulative cost assessments. Section 3 briefly summarizes the main activities carried out in the realm of financial regulation and describes the recent consultation launched by the European Commission for a thorough revision of the whole stock of legislation in this domain. Section 4 concludes by briefly comparing the EU experience with the Canadian one.
The following is the copyright statement of SPPP.
Copyright © <Author name> <year>. This is an open-access paper distributed under the terms of the Creative Commons license CC BY-NC 4.0, which allows non-commercial sharing and redistribution so long as the original author and publisher are credited.
Publication Copyright and Licensing
The following guidelines and information, provided in six sections, are intended for authors (the “Author”) who are invited to write a paper (the “Work”) for The School of Public Policy Publications (the “Publisher”). The rights and responsibilities conveyed in the SPP Author Agreement will only apply once your paper is accepted for publication. At that point in the publication process, you will be asked to download the form and return a signed copy via e-mail to firstname.lastname@example.org. Please review the below information to ensure agreement with SPPP policies.
Section 1: Author’s Grant of Rights
In consideration of the Publisher’s agreeing to publish the Work in The School of Public Policy Publications, the Author hereby grants to the Publisher the following:
1.1 The irrevocable, royalty-free right to publish, reproduce, publicly display, publicly perform and distribute the Work in perpetuity throughout the world in all means of expression by any method or media now known or hereafter developed, including electronic format;
1.2 The irrevocable, royalty-free right to use the Author’s name and likeness in association with the Work in published form and in advertising and promotional materials related to the Work; and
1.3 The irrevocable, royalty-free right to license others to do any or all of the above.
Section 2: Prior Publication & Publication by Others
2.1 The Author agrees not to publish the Work, or authorize any third party to publish the Work, either in print or electronically, prior to publication of the Work by the Publisher.
2.2 The Author agrees not to publish the Work in any publication outlet which is substantially similar to The School of Public Policy Publications for a period of six (6) months after publication of the Work in The School of Public Policy Publications. Substantially similar is defined as a non-subscription, open-access publication outlet with a similar mandate/vision and intended audience.
2.3 Should the Author publish or distribute the Work elsewhere at any time or in any alternate format, the Author agrees to contact The School of Public Policy Publications to inform them of the subsequent publication.
2.4 Should the Author publish or distribute the Work elsewhere at any time or in any alternate format, the Author agrees to make reasonable efforts to ensure that any such additional publication cites the publication in The School of Public Policy Publications by author, title, and publisher, through a tagline, author bibliography, or similar means. A sample acknowledgement would be:
“Reprinted with permission from the author. Originally published in the The School of Public Policy Publications, http://www.policyschool.ca/publications/.”
Section 3: Editing and Formatting
The Author authorizes the Publisher to edit the Work and to make such modifications as are technically necessary or desirable to exercise the rights in Section 1 in differing media and formats. The Publisher will make no material modification to the content of the Work without the Author’s consent.
Section 4: Author’s Ownership of Copyright and Reservation of Rights
4.1 Nothing in this agreement constitutes a transfer of the copyright by the Author, and the copyright in the Work is subject to the rights granted by this agreement.
4.2 The Author retains the following rights, including but not limited to, the right:
4.2.1 To reproduce and distribute the Work, and to authorize others to reproduce and distribute the Work, in any format;
4.2.2 To post a version of the Work in an institutional repository or the Author’s personal or departmental web page so long as The School of Public Policy Publications is cited as the source of first publication of the Work (see sample acknowledgement above).
4.2.3 To include the Work, in whole or in part, in another work, subject to Section 2 above and provided that The School of Public Policy Publications is cited as the source of first publication of the Work (see sample acknowledgement above).
4.3 The Editors and Editorial Board of The School of Public Policy Publications requires authors to publish the Work under a Creative Commons Attribution-NonCommercial 4.0 International licence (CC BY-NC 4.0). This license allows others to distribute, remix, tweak, and build upon the Work for noncommercial purposes, and ensures the Author is credited for the original creation. This onward licensing is subject to section 2.4 of this agreement, which further ensures that the original publisher is credited.
Section 5: Author’s Warranties and Undertakings
The Author warrants that:
5.1 The Author is the sole author of the Work, or if a joint author, the Author has identified within the Work the other authors, and holds the copyright, either solely or jointly, and has the power to convey the rights granted in this agreement.
5.2 The Work has not previously been published, in whole or in part, except as follows:
5.3 Any textual, graphic or multimedia material included in the Work that is the property or work of another is either explicitly identified by source and cited in the Work or is otherwise identified as follows:
5.4 To the best of the Author’s knowledge, the Work does not contain matter that is obscene, libelous, or defamatory; it does not violate another’s civil right, right of privacy, right of publicity, or other legal right; and it is otherwise not unlawful.
5.5 To the best of the Author’s knowledge, the Work does not infringe the copyright or other intellectual property or literary rights of another.
5.6 The Author will indemnify and hold Publisher harmless against loss, damages, expenses, awards, and judgments arising from breach of any such warranties.
Section 6: The Reuse of Third-Party Works
The Publisher requires that the Author determine, prior to publication, whether it is necessary to obtain permissions from any third party who holds rights with respect to any photographs, illustrations, drawings, text, or any other material (“third-party work”) to be published with or in connection with your Work. Copyright permission will not be necessary if the use is determined to be fair dealing, if the work is in the public domain, or if the rights-holder has granted a Creative Commons or other licence. If either the Author or Publisher determines for any reason that permission is required to include any thirdparty work, the Author will obtain written permission from the rightsholder.