Brussels in the shadow of “Better Regulation” – Dr Rachel Minto

The UK is firmly in the grips of debate over its future in the EU.  Meanwhile, in Brussels…

Now the political dust has settled following the General Election, the British focus is upon the forthcoming renegotiations and EU referendum.  However, whilst the UK is currently consumed with more or less informed speculation around Cameron’s wish list for Brussels, the President of the European Commission, Jean-Claude Juncker, and his “right hand man”, Vice-President Frans Timmermans, have been advancing an agenda of their own. With the launch of last month’s Communication (COM(2015) 215 final), and the accompanying Guidelines (SWD(2015) 111 final) and “Toolbox”, it seems that the EU has firmly entered the era of “Better Regulation”, with far-reaching implications.

In the words of the Commission, “Better Regulation is about designing EU policies and laws so that they achieve their objectives at minimum cost. It ensures that policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders.”[1]  In many circles, “Better Regulation” has become synonymous with “cutting red tape” and reducing administrative and/or regulatory burden.  Whilst the new Communication states that this is not about “more or less legislation” or “about deregulating or deprioritising certain policy areas or compromising the values that we hold dear” (p.4), many have asserted otherwise.[2]  This blogpost reflects on the status quo that is being solidified in Brussels, considering first the “new regime” of which this re-launched iteration of Better Regulation is part.  It then looks briefly at two specific elements of Better Regulation: the first is the Regulatory Fitness Exercise, known as “REFIT”, which identifies areas in need of a “Fitness Check”; the second is a reinforced emphasis upon the use of impact assessments and evaluation as part of a coherent and efficient policy cycle.  This blogpost shines a light on the shifting political currents and institutional infrastructure, highlighting questions that demand further attention from citizens as well as academics.

“Better Regulation” itself is not new; it has been part of European decision-making since the early 2000s, and has been developed since then.  However, the strengthening of particular elements of this agenda and its centrality to the activity, even ethos, of the new Commission, render it an important agenda that we cannot evade.  The new Commission took office on 1 November 2014 under the presidency of Jean-Claude Juncker.  As the European People’s Party spitzenkandidat, Juncker’s appointment in function of the European Parliamentary elections opened the door to the (further) politicisation of this role as head of the European executive.  He is clearly making his mark.  Of particular significance are the changes to the institutional architecture of the European Commission itself.  Firstly, Juncker has created the position of First Vice-President who has specific responsibility for Better Regulation.  Frans Timmermans was appointed to this role, as Juncker’s deputy and “right hand man”.  The influence of Timmermans is considerable, particularly given the newly established hierarchal order within the College.  Where there was once a level playing field, now, the five Vice-Presidents (which sit below Timmermans) each oversee a number of Commissioners, and are responsible for early-stage filtering of policy proposals.  As part of this arrangement, the Commissioners are on a tight rein and must ensure that all proposals respect the principle of “Better Regulation”, if they are to have any chance of success.

This newly established top-down approach characterised the development of the Juncker Commission’s first Work Programme, whereas previous Work Programmes had been based on proposals put forward by the policy departments (Directorate Generals) themselves.  Launched in December 2014, the 2015 Work Programme provided an outline of the activity to be undertaken by the Commission over the coming year.  Its content came as something of a surprise.  Notably, the number of prospective proposals was a modest 23 (compared to an average of 130 over the past five years), creating a rather thin (or focused) programme of EU action.  It also included a list of 80 pending pieces of legislation that were to be withdrawn and a list of REFIT actions.

There was considerable disquiet as the Work Programme was being put together, as civil society organisations scrambled to secure the future of social and environmental protection measures.  To little avail.  In substantive terms, the programme was focused in its attention to economic concerns, with limited attention to social and environmental issues, and asserted the notions of simplification and reduction of administrative burden, specifically through the REFIT actions.  Its launch was met with strong criticism, particularly from social and environmental actors as well as many MEPs (who were unable to agree on a Parliamentary Resolution in response).  This criticism has persisted against what it sees as a retrenchment of EU commitments to employment rights, social equality and environmental protection.  In particular, objections were raised about the proposed scrapping of directives if agreement was not reached within six months, including the “Maternity Leave Directive” that was adopted by Parliament in 2010 but remained stuck in the Council ever since.  Also, there have been specific concerns raised in relation to REFIT.  EU Nature Legislation (Birds and Habitats Directives) is one of the most recent areas to fall under the Fitness Check spotlight, to the concern of environmentalists who fear that this will result in a lowering of the current protective standards in place.

Another element of the Better Regulation agenda highlighted here is the strengthening the impact assessment (ex ante) and evaluation (ex post) exercises as part of a coherent and efficient policy-making cycle.  Whilst this is a laudable aim in and of itself, there are outstanding questions about how this will be effectively achieved and to what end.  Indeed, recent research undertaken at the Centre for European Law and Governance (CELAG) at Cardiff University has highlighted the particular challenges of linking ex post and ex ante evaluations, with some agendas at particular risk of being lost in the gap between evaluation exercises.[3]  Also, in other CELAG research, [4] we have highlighted the relatively poor track record of the Commission in ensuring the systematic consideration of its “market correcting” goals in the impact assessment process, in contrast to more market orientated goals.  As such, the resulting policy-making infrastructure has been more hospitable to the consideration and perpetuation of certain policy objectives, whilst others have been more systematically marginalised.  This double-weakness reflected (in part) the institutional architecture for conducting impact assessments (ex ante) and evaluations (ex post), namely the Guidelines for officials.  CELAG-based research on the previous impact assessment Guidelines presented a mixed picture in terms of the attention to more social, “market correcting “ objectives; [5] whereas there is clear consideration for counter objectives associated with economic impacts and the reduction of regulatory burden.  The new Better Regulation Guidelines provide a revised set of instructions for these practices, through the Better Regulation “tool box”.  Our analysis of this tool box is in the early stages; however, what is already notable is that the guidance is relevant to both the practices of impact assessments and evaluation.  This opens the door to a more coherent link between these two phases of the policy cycle; however, there remains uncertainty around how this will actually play out in practice.

In terms of what this all means for the future shape of the European Union, much remains to be seen.  At this stage, certain politicians and business leaders look on favourably, whilst some others point towards the risk “Better Regulation” poses in undermining the social and environmental protections afforded by the EU.  Reflecting on this in the light of ongoing discussions about the UK’s relationship with the EU illuminates something of an absurdity: transformations taking place at an EU-level are aligning it further with the “slimmed down” model desired by some more vocal EU-critics in the UK; however, these EU-level changes are not reflected in the UK-level debates.  In the context of limited public knowledge about the EU, the sharp edge to this absurdity is the restricted scope for and depth of public debate around the EU’s ever stronger “Better Regulation” agenda.  Indeed, UK-based discussion is firmly fixed on renegotiation.  Meanwhile, in Brussels…

[1] European Commission website (2015): http://ec.europa.eu/smart-regulation/index_en.htm

[2] For example, the ETUI has provided particularly vocal critique of “Better Regulation”.  See here: http://www.etui.org/

[3] This 2015 Special Issue of the European Journal of Risk Regulation was the result of a Jean Monnet Centre Workshop on Policy Evaluation in the EU, held at Cardiff University in June 2014.  Some contributors are members of CELAG.  Please see here: http://www.lexxion.de/en/zeitschriften/fachzeitschriften-englisch/ejrr/current-issue.html

[4] For more details about this research, please contact Prof. Stijn Smismans (SmismansS@cardiff.ac.uk) or Dr Rachel Minto (MintoR@cardiff.ac.uk).

[5] For more details about this research, please contact Prof. Stijn Smismans (SmismansS@cardiff.ac.uk) or Dr Rachel Minto (MintoR@cardiff.ac.uk).