1 * world. the in highest the among been time, for some already have, quality regulatory ensure to in Commission mechanisms the developed earlier, the concluded As –BR). regulation’ ‘better as especially here understood be (to governance of good standard the setting and to and policies, EUshaping laws to comes it when organisation leading arecognised is Commission European The in 2019Commission towardsContext: anew Regulation solidificationBetter of discussion: Towards a and summary Executive https://doi.org/10.1787/9789264303072-en Policy Outlook 2018 (2018), OECD Press. University Cambridge Cambridge: Processes Decision-making European and International in ‘Experts’ of Role The (eds.) Raulus &H. Hey E. Arts, K. M., Ambrus, in perspective’ management apublic making: policy international and national of crossroads website Clingendael the on found be can They Brief. Policy Clingendael Fact-based policy or politicised facts? (2018), D. Bevacqua A., Schout, and: Brief, Policy Clingendael Hague: The EU governance enhance to opportunity a missed (2018), A. Schout, are: papers These EU. the in making policy based evidence strengthen to efforts EU’s the of state the into insight give together, that, policy Regulation Better EU’s the and Value Added EU Schout, A. & Sleifer, J. (2014) ‘Expertise at the the at (2014) J. ‘Expertise &Sleifer, A. Schout, Agencies, EU on papers three of part is paper This evidence-based policymaking? evidence-based in the EU Commission –Towards Two decades of Better Regulation 2018 DECEMBER 1 By any standards, its ability to to ability its any standards, By EU agencies after 25 years: years: 25 after EU agencies , OECD Publishing, Paris, Paris, Publishing, , OECD . OECD Regulatory Regulatory OECD EU Added Value – Value EU Added The Hague: Hague: The . , to impact assessments is particularly particularly is assessments impact to comes it when standard world-leading this and political, fragmented highly was apparatus Commission the 1990s in the that Considering achievement. a remarkable is assessments policy integrated deliver 3 2 policy in day-to-day policymaking fact-based regards as have remained issues that also but far indeed come has policy Regulation Better Commission’s the that indicate EU policies. Value Added of European on and apaper analyses, policy fact-based independent offer would they that expectations the on have delivered EU agencies which to extent the on apaper by accompanied is paper This adaptations. possible discuss and to Juncker Commission political’) (‘very the under BR regards as of play state current the assess to relevant it makes This team. Juncker the will succeed a Commission new elections, Parliament European In 2019, the after cycle. policy the throughout of policies assessments sound and scientifically accessible independent, with decision-making political complement to Commission by the efforts continuous have seen decades past The policy. BR its improve to for ways looking constantly is Commission and the impressive Clingendael Brief. Policy Fact-based policy or politicised facts? Brief. Policy a missed opportunity Schout, A., D. Bevacqua (2018), (2018), D. Bevacqua A., Schout, (forthcoming) A. Schout, 3 Together, these documents Together, documents these , The Hague: Clingendael Clingendael Hague: , The years: years: 25 after EU agencies EU Added Value – Value EU Added * The Hague: Hague: The 2

Adriaan Schout & Christian Schwieter Policy Brief Clingendael Policy Brief

making. Given the enormous breadth of the 1) Better regulation is a complex objective. themes EU agencies, EU added value, and BR methodology assists, first of all, the regulatory quality of EU legislation, the the College of Commissioners in their findings can only be tentative and more decision-making by offering fact-based in-depth and sectoral research is required. evidence that supports their political Moreover, the Commission Juncker is still decisions on what the most effective and finalising its current strategic agenda.4 efficient ways are to address problems. The political objectives of the Union’s In essence, this paper on BR, and the action are multiple and vary across papers on EU agencies and EU Added policy areas and over time. Hence, the Value, point to a paradox that on the one BR framework needs to collect evidence hand the Commission is, and is regarded on a large array of impacts. At the as, a politicised body (also e.g. when it same time, BR processes, such as data comes to its independent macroeconomic analysis and consultations, serve a supervision of member states5) while on variety of overlapping purposes including the other hand, the Commission aims at creating transparency, facilitating evidence-based policy making (based on ex communication, and laying the basis for ante assessments and ex post evaluations). ex-post evaluations. The multifarious Trying to combine a political as well as an methodologies contribute to better independent role creates, as also appeared assessments of whether new policies in interviews with policy experts outside the and the existing stock of legislation are Commission and with politicians, a credibility fit for purpose. Yet, as underlined in the problem for the EU Commission. This, literature, the BR agenda has become a ultimately, leads to questions regarding the collection of varied goals, including policy available systems of checks and balances: simplification, prioritisation, consultation, if the Commission is partly political how rationalisation, communication and cost can we ensure the credibility of fact-based reduction, which has led to criticism of policymaking (e.g. in its claims of Added inconsistent objectives and of growing Value or in its supervisory tasks)? politicisation of BR. The multifarious nature of assessments and evaluations The point put forward here is that, if only underline the need to safeguard the for reasons of credibility, a decision has reputation of the BR framework. to be made about separating political 2) Implementation of BR procedures and and analytical tasks. This point is far from principles remains a challenge: new. However, with the growing role of a. The Commission has incorporated the Commission and following its further BR guidelines in its rules of politicisation (see below), the legitimacy procedures, including a new (semi-) of its checks and balances have grown in internal quality control mechanism importance. (the regulatory scrutiny board). However, the European Parliament General findings and discussion and in particular the Council are This scrutiny of the Commission slow in applying BR methodologies. communications and initiatives and of the As a result, the quality control focuses literature over the past two decades shows on Commission proposals, not on the following: the final policies that result from the negotiations. b. Major Commission initiatives are not accompanied by impact assessments and the literature points to major 4 https://ec.europa.eu/commission/sites/beta- questions regarding the quality of political/files/political-guidelines-short_en.pdf. impact assessments (including about 5 ‘EU Fiscal Board blames Commission of ineffective recommendations’, https://www.euractiv.com/ methodological issues). section/economic-governance/news/eu-fiscal- c. Costs of assessments are an obstacle board-blames-commission-of-ineffective- in a diversified EU of close to recommendations/. 30 member states.

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d. Within the Commission, adherence to Discussion and points of attention IAs has been variable. for the next EU Commission: As a result, the Commission has created Solidifying trust a world-class BR system6 but questions 1) One way to increase trust could be to remain as regards the application. create a truly independent quality control 3) Juncker’s priority to be ‘big on big and system by carrying out quality control small on small’ seems to have been on IAs and on ex-post evaluations of successful in focusing attention on policies independently of, and outside, the specific policy areas but it competes Commission. Moreover, tasks that require with demands for more legislative independent assessments and monitoring detail from member states, European should be separated from more political Parliament, industry sectors, international components of BR such as stakeholder regulatory standardisation organisations engagement. and from within the Commission. As regards control on impact Further assessment is required to see assessments, this implies placing the whether the level of detail in Juncker’s Regulatory Scrutiny Board outside legislative packages has indeed gone the Commission. In relation to ex post down. There is also a trade-off between evaluations of policies, the role of the full-cycle evidence-based policymaking European Court of Auditors could be and reducing the volume of legislation: elaborated. the former may require updating old This discussion about a truly independent legislation, which may conflict with the quality control is not new. The OECD Commission’s objective to reduce overall underlines the importance of keeping regulatory burden and its predefined quality control closely connected to political strategic agenda. policymaking. Also the Commission Moreover, what is ‘small’ is ultimately has insisted on keeping quality control a political assessment. Views on the within its own organisation – and for importance of, for example, EU legislation understandable reasons.8 However, to on parental leave differ between member ensure trust, we would emphasise the states. importance of independent and external 4) As concluded by Russel and Radaelli checks and balances. (2015), the EU’s Better Regulation A separate RSB, however, creates the Agenda is in danger of becoming another danger that it can be easily ignored. case of ‘[scaling] up in ambitions and Hence, its relevance needs to be assured [engaging] with grandiose narratives of by the quality and independence of its “governance”’7 rather than an exercise in staff, and its connection to the policy realistically determining what objectives process should be legally safeguarded. are achievable and how. ‘European Added One option would be to anchor it in the Value’ is an example of a notion that EU Treaty or to strengthen it in the rules suggests a factual foundation and it is of the procedures of the Commission, often used in Commission documents EP and Council. The RSB could monitor but that is hard to substantiate. Such proposals as well as the outcomes of the a notion, as well as major assessments negotiations. without assessments, risk creating the To ensure member states’ ownership of impression of unsystematic application of new proposals and the related impact evidence-based principles. assessments, it is advisable to sharpen the first discussion of a Commission proposal in the Council by stating in the rules of procedure of the Council of 6 OECD (2018), OECD Regulatory Policy Outlook 2018, OECD Publishing, Paris, https://doi. org/10.1787/9789264303072-en. 7 Dunlop, C. & C. Radaelli (2015), ‘Impact Assessment 8 Smulders, B. & J.-E. Paquet (2018), ‘The European in the European Union: Lessons from a Research Commission and its Better Regulation Agenda’ Project’, Symposium on Policy Evaluation in the EU, in S. Garben & I. Govaere (eds.) The EU Better European Journal of Risk Regulation, 5(1), p. 33. Regulation Agenda, Hart Publishing.

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Ministers that the Council adopts the depends on the abilities of member states proposal and recognises the quality of to ensure evidence-based assessment proposal and IA. themselves. Effective BR is more than an 2) Evidently, impact assessments and fact- EU policy; it should be part of a multilevel based policy cost money. A higher budget administrative culture. for BR to ensure evidence-based policy is required (also for the EU Court of Auditors). I. Introduction: From ‘doing less 3) This paper is about BR in its current but doing better’ to ‘big on format. BR is essentially about making ongoing EU policy evidence-based. big and small on small’ A more fundamental question is whether EU policy is needed in the Better Regulation (BR) principles have first place. What should be explored steadily grown in importance in the as a next step would be the inclusion working procedures of the EU over the of ‘policy competition’ as a specific BR past two decades. Attention for quality and objective of the next EU Commission. quantity of EU legislation and particularly Policy competition goes further than of Commission proposals was triggered by aiming for ‘small on small’, subsidiarity, Delors activism in ‘completing’ the internal or proportionality. Instead of making market. Industry complained about too many the case for EU measures and for complex, poorly developed, and inconsistent harmonisation, it is time to explore policies10 and criticism of EU legislation options for competition between member mounted, up to the point that a veritable states. Relatedly, there is a tendency to “legitimacy crisis” came to a head in 1999 work more with Regulations than with with the fall of the Commission Santer.11 Directives. The EU is more harmonised Moreover, already in 1996, Albert Breton than other federal blocks such as the US. argued that the EU was more harmonised The question that needs to be addressed than federal states such US and Canada at is how policy competition can be the expense of policy competition between sharpened also in terms of formal policy states.12 Among the early responses to these objective. As regards BR, this would criticisms were Delors’ introduction of the imply more attention for the ‘do nothing’ principle of subsidiarity,13 discussions in the alternative by explicitly considering the Netherlands about policy competition versus value of policy competition. harmonisation,14 and Santer’s ambition for 4) This paper is about BR at EU level. A successful BR policy, in the EU’s multilevel administrative system, should be complemented with comparable BR policies at the national level.9 BR at EU level will only be owned by the member states if they have comparably 10 Everson, M., G. Majone, L. Metcalfe and A. Schout objectives and systems. Moreover, it will (1999): ‘The Role of Specialised Agencies in be easier to deliver input in assessments Decentralising EU Governance: Report Presented and evaluations if countries can deliver to the Commission’, Florence. comparable data. Finally, given the 11 Majone, G. (2000), ‘The Credibility Crisis of continued relevance of national policies, Community Regulation’, Journal of Common Market the functioning of the internal market Studies, 38: 273-302. 12 Breton, A. (1996), Competitive Governments: An Economic Theory of Politics and Public Finance, Cambridge: Cambridge University Press, p. 276. 9 Schout, A., A. Mijs (2015) Expert contribution 13 Wilke, M. & H. Wallace (1990) Subsidiarity: ‘Better Regulation’, European Parliamentary Approaches to Power-sharing in the European hearing on better regulation initiatives at EU and Community, London: Royal Institute of International at national level: http://www.europarl.europa.eu/ Affairs. cmsdata/83495/STUDY_Pol%20Depart_PE%20 14 Geelhoed, A. (1997), ‘1997: een delta in Europa’, 519.222_en.pdf. ESB, 1-1-1997.

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his Commission to “do less but do it better” Following the final report of the “High in 1998.15 Level Group on Administrative Burdens” operating from 2007 until 201424, the Juncker BR steadily developed under successive Commission revamped BR in 2015 “to deliver Commission Presidents: after the better rules for better results”.25 The new adoption of the Lisbon Strategy in 2000 post of the First-Vice President responsible and the subsequent 2001 “Mandelkern for “Better Regulation, Interinstitutional Group Report on Better Regulation”,16 Relations, the Rule of Law and the Charter the Prodi Commission issued a variety of of Fundamental Rights”, as well as the communications on better law-making,17 creation of a Task Force “on Subsidiarity, impact assessments,18 and general principles Proportionality and ‘Doing Less More for stakeholder consultation.19 In 2005 Efficiently’” gave further impetus to the and 2010, the Commission renewed its adoption of BR principles across the EU commitment to better regulation under institutions. Barroso with its communications on ‘Better regulation for growth and jobs in the This paper discusses the trajectory of the European Union’20 and ‘Smart Regulation BR agenda by firstly reviewing the different in the European Union’.21 Up to this point, BR priorities of the Commission Presidents commentators had been highly positive since Prodi, followed by an assessment about the implementation of the BR agenda,22 of the implementation of the individual despite earlier expectations that a politicised components of BR under Juncker. It is based and fragmented organisation such as on a collection of evidence from academic the Commission could not implement the literature and official reports, also with needed reforms.23 a view to mapping the field. In addition, background interviews have been conducted with practitioners, politicians and experts to complement the desk research.

15 E.g. Santer, J. (1998) Speech European II. Better Regulation: Parliament, 21 October. Peterson, J. (2015) ‘The A multifaceted and Commission and the New Intergovernmentalism’ in Bickerton, C., D. Hodson & U. Puetter (eds.) flexible concept The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era, The Prodi Commission (1999-2004): Oxford: Oxford University Press, p. 188. good governance as an ethical 16 Mandelkern Group on Better Regulation, requirement Final Report. 13 November 2001. Available at Following the Lisbon European Council http://ec.europa.eu/smart-regulation/better_ meeting in 2000, the Mandelkern report regulation/documents/mandelkern_report.pdf. defined ‘better regulation’ as 17 COM(2001) 428. 18 COM(2002) 276. 19 COM(2002) 704. “[t]he policy of seeking to improve and 20 COM(2005) 0097. simplify the regulatory environment. 21 COM(2010) 543. Regulation should be used only when 22 Bauer, M.W., A. Jordan, C. Green-Pedersen and necessary and be appropriate and A. Héritier (eds.) (2012) Dismantling Public Policy, proportionate to the task. It should be Oxford: Oxford University Press. Schout, A. & transparent and accessible to all and as Sleifer, J. (2014) ‘Expertise at the crossroads of national and international policy making: a public management perspective’ in Ambrus, M., K. Arts, E. Hey & H. Raulus (eds.) The Role of ‘Experts’ 24 High Level Group on Administrative Burdens, in International and European Decision-making Cutting Red Tape in Europe: Final Report. 24 July Processes. Cambridge: Cambridge University Press. 2014. Available at: http://ec.europa.eu/smart- 23 Dinan, D. (2005), ‘Governance and Institutions: regulation/refit/admin_burden/docs/08-10web_ A New Constitution and a New Commission’, ce-brocuttingredtape_en.pdf. Journal of Common Market Studies, 43:37-54. 25 COM(2015) 215.

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simple as possible. It should be enforceable Beyond the technocratic rationale for BR and at European level should obey the as described by the Communication on principle of subsidiarity.” 26 impact assessments,30 the Prodi Commission considered BR (at the time referred to as The report emphasised the importance of Better Law-making) a “veritable ethical impact assessments, consultations and requirement” and a necessary response regulatory simplification and transparency to a growing “democratic conscience” by to improve the European regulatory ensuring that European institutions show environment. After the subsequent 2001 “the willingness to stand up to scrutiny”.31 White Paper on European Governance, Referring directly to worries expressed in the Prodi Commission tabled the first the EP Resolution of November 2001, the ‘Better Regulation’ package in June Commission acknowledged “the primacy 2002 to “[simplify] and [improve] the of political accountability behind legislative regulatory environment”, standardise action” and “the need for more transparent, impact assessments across Commission equitable and disputational consultation”. services and create a Commission internal The Prodi Commission appears to have network on ‘better law-making’. Some defined its BR agenda primarily in terms of commentators considered the package accountability and accessibility. BR was seen a marked, and controversial, departure as a way to improve the reputation of the from the precautionary principle which Commission in the eyes of both the public had guided the Commission’s regulatory and co-legislators.32 philosophy previously and which was still the modus operandi for many DGs.27 The Barroso Commission I-II Nevertheless, a greater emphasis on cost- (2004-2014): Evaluate first and benefit analyses was welcomed by many reduce red tape to promote international commentators, particularly in competitiveness the US, many of whom were worried about The first Barroso Commission further the supposed ‘over-regulatory’ tendencies developed BR into a more comprehensive resulting from the precautionary principle.28 regulatory strategy, defining BR as a It is noteworthy here that, following the means to better regulation toolbox of 2015 (updated in 2017), the precautionary principle may “better design regulation so as to increase still guide risk management measures if the benefits for citizens, and to reinforce supported by evidence on the costs and the respect and the effectiveness of the benefits of applying the principle in the rules, and to minimise economic costs. […] specific case.29 Better regulation is crucial for promoting competitiveness both at EU level and in the Member States.” 33

26 Mandelkern Group on Better Regulation, Final Barroso reinforced Prodi’s BR Report, p. 81. 27 Lofstedt, R. (2007) ‘The ‘Plateau-ing’ of the infrastructure by introducing impact 34 European Better Regulation Agenda: An Analysis of assessment guidelines, including a Activities Carried out by the Barroso Commission’, ‘common methodology for assessing Journal of Risk Research, 10(4): 423-447. 28 For a thorough review of the precautionary principle in US regulatory policy, see R. Percival (2006) ‘Who’s Afraid of the Precautionary 30 COM(2002) 276. Principle?’, Pace Environmental Law Review, 23(1). 31 COM(2002) 275. 29 “A proportionate IA should also be carried out for 32 Topan, A. (2002), ‘The resignation of the Santer- every decision invoking the precautionary principle Commission: the impact of ‘trust’ and ‘reputation’’, which should set out the elements necessary European Integration online Papers (EIoP), 6(14); for the exercise of the principle.” European Meuwese, A. (2008), ‘Informing the EU Legislator Commission (2017) Better regulation “Toolbox”, through IA’, in Impact Assessment in EU Lawmaking, Tool #12: Risk assessment and management, p. 73. Leiden: Leiden University, p. 30. We thank an anonymous reviewer for drawing our 33 COM(2005) 97, pp 2-3. attention to this. 34 SEC(2005) 791/3.

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administrative costs’,35 and setting up the evaluations of individual policy instruments. ‘Impact Assessment Board’ as a quality More generally, the Barroso Commission control mechanism for Commission IAs. highlighted the need to ensure that the In addition, the Barroso Commission put principles of smart regulation are embedded a stronger emphasis on ex-post policy in the professionalisation of the working evaluation, responding to a suggestion culture41 of the entire Commission, and the by the Court of Auditors to include President took “direct responsibility” for “legislation and non-spending policies” in its implementation.42 As the October 2010 the systematic evaluation of Commission communication put it: activity.36 Another key element of Barroso’s BR agenda was the ‘action programme “Since it is the existing body of legislation, for reducing administrative burdens’37, however, that creates most benefits which introduced means to reach a 25% and costs, we must make an equivalent reduction in administrative burdens for effort to manage it more systematically. European businesses by 2012. Despite Smart regulation policy will therefore these initiatives, scholars at the time saw a attach greater importance than before to ‘plateau-ing’ of the BR agenda during the evaluating the functioning and effectiveness first years of the Barroso Commission, given of existing legislation.” 43 disagreements between Commissioners on the relationship between regulation and This ‘evaluate first’ culture was meant to be competitiveness.38 While Commissioner embedded throughout the Commission’s Verheugen of DG Enterprise was vocal in services by aligning evaluation planning his belief that ‘less red tape equals more timelines and creating an evaluation template growth and jobs’,39 Commissioner Dimas of so as to streamline the quality of ex-post DG Environment argued that ‘environmental evaluation activity across different DGs. standards drive innovation and contribute In summary, while the Barroso Commission to competitiveness’.40 explicitly built on the BR initiative of the Prodi Commission,44 Barroso’s definition At the start of the second Commission of BR shows a clear shift towards a more Barroso and in the immediate aftermath of comprehensive, ‘full-policy cycle’ approach, the economic crisis, better regulation was with a renewed aim to ‘be big on big things rebranded, in 2010, as ‘smart regulation’, and and smaller on smaller things’.45 BR was no greater emphasis was put on stakeholder longer presented as a political response to consultations, further reducing regulatory ‘democratic conscience’ but as technocratic, burden for businesses, and on proper evidence-based policymaking to promote policy implementation (as opposed to the legitimacy (credibility) of EU policy, the only focusing on policymaking). A key efficiency of EU laws and ultimately the introduction was the Regulatory Fitness and competitiveness of European businesses in Performance Programme (REFIT), which the global economy.46 would conduct fitness checks to evaluate the effectiveness of a range of policy actions in one policy area, supplementing DGs’

41 Connolly, S., H. Kassim & M.W. Bauer, ‘Managing without?’, EUSA Fifteenth Biennial Conference, 35 COM(2005) 518. Miami, May 4-6, 2017. 36 SEC(2007) 213. 42 COM(2010) 543. 37 COM(2007) 23. 43 COM(2010) 543, p. 3. 38 Lofstedt, R. (2007) ‘The ‘Plateau-ing’ of the 44 COM(2005) 97, p. 2. European Better Regulation Agenda’. 45 Barroso, J.M.D. (2013) State of the Union Address, 39 Verheugen, G. (2005a) Press conference on available at: http://europa.eu/rapid/press-release_ Better Regulation: ‘Less red tape = more growth’, SPEECH-13-684_en.htm. Brussels, 16 March. 46 Wiener, J.B. (2006) ‘Better Regulation in Europe’ 40 Dimas, S. (2005c) Growth jobs and the Duke Law School Working Paper Series, 65, environment. Speech given at the European available at: http://www.osservatorioair.it/ Environment Agency, Copenhagen, 7 October. wp-content/uploads/2009/08/wiener2006.pdf.

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That BR was more than an objective but Committee of the Regions, as well as rather an attempt to change the working business and civil society representatives. culture was also emphasised by the – The redesigned Regulatory Scrutiny organisational changes: obligatory integrated Board (formerly the Impact Assessment assessment and team work (integrated Board), which has been tasked to assess assessment teams), expansion of the the quality of impact assessments Secretariat General under the Commission, submitted as part of new policy proposals. with the Deputy Secretary General For improved functional independence, all (Alexander Italianer at the time) chairing members are recruited on a fixed three- the quality review board (IA Board), and in year, full-time contract and are divorced addition the departments in the Directorates from any policy responsibility through in the Secetariat General all referred to BR. their administrative attachment to the Secretariat-General. Half of the board is The Juncker Commission now also composed of members recruited (2014-2019): ‘big on big’, from outside the Commission. Since 2017, ‘doing less more efficiently’, EAV the board also conducts assessments of The Juncker Commission rephrased the ex-post evaluations. original ‘small but better’ mantra as ‘big on – The 2016 interinstitutional agreement big things and smaller on smaller things’ and on Better Law-Making and the common defined better regulation as: approach to impact assessments, allow the Commission to provide additional “designing EU policies and laws so that evidence at any stage of the legislative they achieve their objectives at minimum process if requested by the co-legislators. cost [and] a way of working to ensure The Impact Assessment Institute also that political decisions are prepared in an reaffirms the 2003 commitment by open, transparent manner, informed by both the European Parliament and the the best available evidence and backed European Council to carry out their by the comprehensive involvement of own IA if the original proposal has been stakeholders.” 47 substantially amended. The Commission can assist in this process, if requested. This entails three main objectives for the However, even though since 2003 the new BR agenda: more frequent stakeholder co-legislators have been committed consultations throughout the policy cycle, to impact-assessing their substantial more thorough impact assessments, and amendments, progress has been improved ex-post evaluation.48 To deliver on limited. The Council has only recently these goals, three changes to the institutional established the capacity to outsource system have been made: such assessments (and it is unclear at – The REFIT platform, chaired by the First this stage how it uses this capacity). Vice President, now gives stakeholders The European Parliament has started to a means of engaging directly in the perform assessments.49 policymaking process. Next to the online consultation platform for citizens, Following the 2017 White Paper on the Future there are two consultation groups: the of Europe, the Juncker Commission began government group, consisting of national supplementing the ‘big on big’ mantra with experts, and the stakeholder group, the maxim of ‘doing less more efficiently’, comprised of experts from the European which culminated in the creation of a Task Economic and Social Committee, the Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ headed by First-Vice President Timmermans in order to “take a very critical look at all policy areas 47 SWD(2017) 350, p. 4. 48 Alemanno, A. (2015) ‘How Much Better Is Better Regulation? Assessing the Impact of the Better Regulation Package on the European Union – A Research Agenda’, European Journal of Risk 49 For details see: http://www.europarl.europa.eu/ Regulation, 6(3):344-356. thinktank/en/search.html?policyAreas=EXIMAS.

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to make sure we are only acting where the III. How successful is Better EU adds value”.50 In May 2015, the Juncker Regulation? Commission published Guidelines and a Toolbox (updated in 2017) on how civil servants in the DGs ought to implement Historically, the – conflicting58 – goals of the BR principles as regards planning, impact Better Regulation agenda of the Commission assessments, implementation, monitoring, have been: a) to improve the quality and evaluations and stakeholder consultations. ex-ante impact assessments and ex-post Notably, the principle of ‘EU added value’ evaluations (evidence-based policymaking), is referred to as a key determinant for what b) to ensure greater stakeholder input in constitutes better regulation.51 the policymaking process,59 c) to reduce unnecessary regulatory burden, and d) to Judging from these changing BR maxims, ‘focus’ on political priorities (big on big there appears to be a significant effort by and small on small). How has the Juncker the Juncker Commission to broaden the Commission delivered on these promises BR agenda by marrying Prodi’s demos- so far? Each of these aspects deserves orientated political rationale of BR with the elaborate treatment. Here, we particularly business-orientated efficiency argument of focus on evidence-based policymaking, given Barroso.52 Nevertheless, there are indications the traditional objective of better regulation that the ‘political’ Juncker Commission53 is to rationalise the policymaking process. shifting towards emphasising the democratic legitimacy argument over the technocratic a) Evidence-based policymaking argument. In response to the criticism of UNI Europa that the BR agenda is a way to Frequency of reports ‘de-democratise the legislative process in As regards impact assessments, the BR favour of technocratic decisions (influenced guidelines require an IA “for Commission by business lobbies)’, Smulders54 and Jean- initiatives that are likely to have significant Eric Paquet55 underline that ‘[the] aim is economic, environmental or social impacts” precisely the opposite’.56 and state that “impact assessments should be carried out for both legislative and non- These different rationales and justifications legislative initiatives as well as delegated acts have led to the adoption of multiple and implementing measures”.60 Considering communications on, and changes to, the the aim to be ‘big on big things’, one may BR framework, the coherence of which has expect that most legislative proposals seek to however been criticised.57 have a significant economic, environmental or social impact, therefore warranting an IA for most proposals. According to the Impact 50 Juncker, J.-C. (2017) State of the Union Address. Assessment Institute: Available at: http://europa.eu/rapid/press-release_ – in 2015 less than every third proposal was 61 SPEECH-17-3165_en.htm. accompanied by an IA; 51 For an elaborate critique of EAV and its relationship – in 2016, half of all 2016 proposals were to BR see Schout, A., D. Bevacqua (2018), accompanied by an IA.62 ‘EU Added Value – Fact-based policy or politicised facts?’ The Hague: Clingendael Policy Brief. 52 “[A]n ethical necessity for evidence-based policy- making [was] at the root of Better Regulation in 2002 which is still relevant in today’s world – 58 Eliantonio, M. & A. Spendzharova (2017) ‘The arguably even more so.” – Smulders and Paquet European Union’s New “Better Regulation” Agenda: (2018), p. 81. Between Procedures and Politics’, European Journal 53 Peterson, J. (2017) ‘Juncker’s political European of Law Reform, 19(1-2): 14. Commission and an EU in crisis’, Journal of 59 SWD(2017) 350, p. 5. Common Market Studies, 55(2): 349–367. 60 SWD(2017) 350, p. 15. 54 Head of the Cabinet of the Commission’s First 61 Impact Assessment Institute, A year and a half of Vice President. the Better Regulation Agenda: what happened?, 55 Deputy Secretary-General of the Commission. 30 January 2017, p 34, available at http://www. 56 Smulders, B. & J.-E. Paquet (2018), p. 81. impactassessmentinstitute.org/br-18-months. 57 E.g. Alemanno, A. (2015), pp 355-6. 62 Ibid.

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Based on our own calculations, in 2017 concerning the costliest single policy area 84 proposals were made and 53 IAs were of the EU, the Common Agricultural Policy,69 published, indicating that over 60% of which in itself is evidence of a major gap in proposals were accompanied by an IA.63 the ex-post evaluation of EU activity. Although there is a positive development towards a greater share of proposals Quality of IAs and ex-post evaluation with an IA, the European Parliament in reports 2018 deplored the fact that “a significant Starting with ex-post evaluations, the number of Commission proposals were not majority of evaluation reports conducted accompanied by impact assessments”.64 until 2012 demonstrated a lack of clear This lack of IAs is of particular concern in methodology, making it difficult to assess key policy areas such as the EMU: the recent the robustness of the evaluation results.70 policy package adopted by the Commission Similar methodological problems, albeit in December 2017, including proposals for to a lesser extent, were found regarding a European Monetary Fund,65 a revamped IAs prior to 2012.71 However, in recent Structural Reform Support Programme66 years, the Commission has appeared to and the adoption of the Treaty on Stability, be making progress in this regard. The BR Coordination and Governance in the guidelines now state that “[g]ood evaluations Economic and Monetary Union (TSCG) into should make strong efforts to go beyond a the EU acquis,67 are notably not accompanied qualitative description of the different costs by IAs, despite their potential for significant and benefits of the EU intervention and seek socio-economic impacts.68 to quantify them.”72 Similarly, for Impact Assessments, “[a]ll relevant impacts should It is difficult to draw decisive conclusions be assessed qualitatively and quantitatively about the frequency of ex-post evaluation whenever possible”.73 reports, not least because the Juncker Commission has not published a list From 2016 to 2017: of evaluations finalised since 2016. – The share of IAs and evaluations that Nevertheless, there has not been a quantified benefits increased from 69% comprehensive ex-post evaluation to 80%; – The share of IAs that quantified regulatory costs rose from 69% to 89%; – IAs and evaluations that quantified 63 See Figure 1 & 5. in the Annex. Note that the aggregate costs (including administrative, number of legislative proposals and IAs as reported compliance and enforcement costs) by the Impact Assessment Institute slightly differs increased by almost one third. from the numbers as reported by Haege (2011), Rozenberg et al. (2018) and the Regulatory Scrutiny Board, which were used for the figures in the Annex. The trend was nevertheless also observed in both datasets. 64 European Parliament, Resolution on the interpretation and implementation of the 69 Darvas, Z. & G.B. Wolff (2018) ‘Rethinking the Interinstitutional Agreement on Better Law-Making European Union’s post-Brexit budget priorities’, (2016/2018(INI)), 30 May 2018, paragraph 22. Bruegel, March 2018, p 3; Schout, A., D. Bevaqua 65 COM(2017) 0827. (2018). 66 COM(2017) 0825. 70 Mastenbroek, E., S. van Voorst & A. Meuwese 67 COM(2017) 0824. (2015), ‘Closing the regulatory cycle? A meta 68 It is important to note that not all proposals evaluation of ex-post legislative evaluations by the have significant expected impacts, as some European Commission’, Journal of European Public may be proposals to codify legislation or amend Policy, p. 14. pre-existing legislation through very specific 71 For an elaborate discussion, see Luchetta, G. (2012) adjustments. Additionally, in the area of financial ‘Impact Assessment and the Policy Cycle in the EU’, programmes, the legislator has given the European Journal of Regulatory Reform, 3(4): 561- Commission the choice (possibility?), under the 575. Financial Regulation, to present ex-ante financial 72 SWD(2017) 350, p. 61. statements rather than impact assessments. 73 SWD(2017) 350, p. 26.

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Still, in 2017, a significant share of reports official prior to the first draft IA usually lead contained no quantification of costs. to an IA of significantly higher quality.79 – No quantification of administrative costs in 42% of IAs; While problematic, the Commission’s – No quantification of compliance costs in internal report on quantification in IAs and 29% of IAs and evaluations; evaluations shows that the Commission is – No quantification of enforcement costs in aware of the issue and is seeking ways to 55% of all IAs and evaluations. raise standards. However, the ‘boundaries of the possible’80 in this endeavour must be The significant share of reports that acknowledged.81 Quantification of benefits lack quantification indicates that actual and costs is often difficult and resource- compliance with the Commission’s BR intensive, particularly when the data has standards remains patchy. This is further to be gathered from all over the EU from substantiated by the Report of the Impact member states that differ in terms of many Assessment Institute on the Commission significant variables, such as climatic BR agenda. Four out of seven IAs studied conditions, socio-economic contexts and in depth74 showed major issues in terms soil composition, as well as their capacity of the rhetoric used, which appeared to collect information on these variables.82 to “prejudge the results and generate The frequent references to ‘European starting assumptions not based on Added Value’ in this regard may be potent evidence”.75 More worryingly, the majority rhetorically, but given the lack of a clear of IAs demonstrated major shortcomings working definition across Commission DGs, in terms of analysis, methodological rigour only further exacerbates the issue of impact and transparency, as well as subsidiarity quantification.83 and proportionality arguments.76 This lacklustre compliance with subsidiarity Role of reports in the policymaking and proportionality checks and lack of process robust methodologies in IAs and ex-post While both the quality and frequency of evaluations is visible in one of the EU’s key ex-ante and ex-post evaluations leave room policies, the Common Agricultural Policy.77 for improvement, there are indications that, This criticism, again, is in line with a recent even in cases where IAs or evaluation reports EP resolution, which notes that “committees have been conducted, their role in the wider have expressed concern that the quality policymaking process remains limited. and level of detail of impact assessments – Out of seven IAs conducted between varies from the comprehensive to the rather 2014 and 2016 and analysed by the IAI, superficial”.78 However, it is important to two were accompanied by a legislative note that the Regulatory Scrutiny Board, in proposal. These two legislative its annual reports, regularly stresses that there is usually a significant improvement in the quality of IAs after the first review by the 79 See e.g. Regulatory Scrutiny Board (2017), Annual RSB, and that upstream meetings between Report 2017. Available at https://ec.europa.eu/info/ the board and the relevant Commission sites/info/files/rsb-report-2017_en.pdf. 80 Majone, G. (1989) Evidence, Argument and Persuasion in the Policy Process (London: Yale University Press). 81 ‘To a great extent domestic factors continue to 74 IAs published between 2014 and 2016. frame the ‘boundaries of the possible’, and to 75 Impact Assessment Institute, A year and a half of mediate the impact of any new interventions from the Better Regulation Agenda: what happened?, the EU level’ – Cram, L. (2001), Governance ‘to Go’: p. 14. Domestic Actors, Institutions and the Boundaries 76 Ibid., p. 21. of the Possible. Journal of Common Market Studies, 77 Schout, A., D. Bevacqua (2018). 39: 613. 78 European Parliament, Resolution on the 82 Dunlop, C. & C. Radaelli (2015): p. 29. interpretation and implementation of the 83 Schout, A. & D. Bevacqua (2018, forthcoming) Interinstitutional Agreement on Better Law-Making ‘Is European Added Value fact-based policy?’ (2016/2018(INI)), 30 May 2018, Paragraph 22. Clingendael Policy Brief.

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proposals demonstrated a lack of were unlikely to be proposed.88 This continuity between evidence-gathering highlights an uneasiness within the BR and legislation, as the conclusions of agenda: evidence-based policymaking the IAs were not considered in their may sometimes require additional, entirety in the final legislative proposal.84 time-intensive legislative action. Yet Although there is no evidence that this the Commission remains committed is a systematic issue, and while the to reducing the regulatory burden and Commission is of course free to make a speeding up the legislative process.89 political decision when it comes to the final proposal and ignore the IA findings, b) Stakeholder input it does show that the mere existence Increased stakeholder input and public of an IA does not guarantee that the consultation platforms are key BR instruments proposal is necessarily ‘evidence-based’. for the Juncker Commission to improve the transparency of the decision-making However, it is also important to note that IAs process of the Commission. However, some have a further function in the policymaking commentators argue that, through its extended process in the sense that they have a collection of stakeholder opinions even after narrative role for the Commission. legislation has already been proposed, the – Rather than being a decisional tool, Commission is harming the institutional IAs can often serve to strengthen the balance between the co-legislators and is case of a political choice that was made exceeding its mandate in the co-decision prior to the conclusion of the IA, finding procedure.90 Similarly, there is criticism that empirical evidence for the intrinsically the Commission overemphasises the opinions political preference for a certain policy.85 of organised interest groups and industry As Dunlop and Radaelli put it, “[e]x ante over those of individuals most affected by evaluation is not necessarily used to the proposed legislation.91 Aside from these ‘speak the truth to power’”,86 as often political concerns, generally speaking, claimed. stakeholder consultations under Juncker are frequent and are deemed of high quality As regards ex-post evaluations, qualitative by the OECD.92 Moreover, other scholarship scholarship has shown that the Commission has shown that the Commission is the EU has considerable political leeway when it institution most responsive to stakeholder comes to implementing recommendations of input,93 and that the variety of stakeholders the evaluation report. consulted has improved in recent years.94 – In the case of cohesion policy, ex-post Stakeholder consultations under Juncker can evaluations were not completed in time therefore be presented as a success. to inform the proposal for the new Multi- Annual Financial Framework (MFF) or its respective IA. Instead, only a broad mid-term evaluation of the entire MFF 88 Van Voorst, S. & P. Zwaan (2018), ‘The (non-)use was produced, with little relevance for the of ex post legislative evaluations by the European cohesion policy.87 Commission’, Journal of European Public Policy. – In the area of health and food safety, if 89 Van Voorst, S. & P. Zwaan (2018), p. 18. the evaluated legislation did not explicitly 90 Pachl, U. (2015), ‘Repercussions of the European fall within one of the Commission’s Commission’s Better Regulation Agenda on policy priorities, amendments, even if Consumer Interests and Policy’, European Journal recommended by the ex-post evaluation, of Risk Regulation, 6(3): 376. 91 Alemanno, A. (2015), p. 349. 92 E.g. Schout and Sleifer, ibid. 93 Judge, A. & R. Thompson (2018), ‘The responsive­ness 84 Impact Assessment Institute, A year and a half of legislative actors to stakeholders’ demands in the of the Better Regulation Agenda: what happened?, European Union’, Journal of European Public Policy, p. 21. p. 15. 85 Dunlop, C. & C. Radaelli (2015), p. 30. 94 Lindgren, K.-O. & T. Persson (2018) ‘Participatory 86 Ibid. governance in the European Union’ in H. Heinelt (ed.) 87 Schout, A. & D. Bevacqua (2018 forthcoming) Handbook on Participatory Governance, Cheltenham: ‘Is European Added Value fact-based policy?’. Edward Elgar Publishing, p. 236.

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A point of concern is however that – 3 acts (6%) were replaced by stakeholder consultations may conflate follow-up acts prior to being listed in evidence-based policymaking: in its BR the annual work programme. toolbox, the Commission defines evidence as “quantitative and qualitative information These findings are broadly consistent with as well as stakeholder opinions” [emphasis other scholarship99 and show that the added].95 Evidently, it is highly important the Commission is behind schedule in terms of Commission’s puts a lot of effort to discuss repealing acts and that suggested reductions the feasibility of policies with stakeholders. are already no longer in force. Yet, caution is required as stakeholder opinions may conflict with cost-benefit 2. While Juncker set up a Task Force for the analyses and ex-post evaluations.96 explicit purpose of taking “a very critical look at all policy areas to make sure c) Reducing red tape we are only acting where the EU adds Overall, there has been a steady reduction value”100, the Task Force concluded in its of legislative proposals by the Commission.97 final report that “there is EU value added This is likely due to the increasingly in all existing areas of activity and did not, centralised decision-making structure within therefore, identify any competences or the Commission, which allows the President, policy areas that should be re-delegated the Secretariat-General and the First Vice- definitively, in whole or in part, to the President to exert control over the overall Member States.”101 policy agenda and reduce the volume of – Interestingly, while there is a list of legislation proposed by the different DGs.98 legislation and proposals submitted by However, there are a variety of indicators that a variety of stakeholders for the Task suggest that the impetus as regards red tape Force to be reviewed, the minutes of reduction during the Barroso era may be the Task Force reveal that the Task running out of steam under Juncker. Force did not consider this list, due 1. In terms of repealing dated legislation, the to the politically ‘sensitive’ nature of Commission proposed to repeal a total of the stakeholder suggestions.102 One 51 acts in the annual work programmes may question how successful the for 2015 (10 acts), 2016 (23), 2017 (15) ‘reduction of red tape’ will be if the and 2018 (3). Of these acts, as of October Task Force specifically set up for the 2018, purpose of ‘taking a very critical look’ – 24 acts (47%) are still in force; at existing EU legislation does not dare – 18 acts (35%) were actively repealed to touch the list of suggested changes or made obsolete; in EU legislation. – 6 acts (12%) are no longer in force due to pre-existing sunset clauses;

99 Zbíral, R. (2018) ‘The Better Regulation Agenda and the Deactivation of EU Competences: Limits and Opportunities’ in S. Garben & I. Govaere (eds.) 95 European Commission (2017) Better Regulation The EU Better Regulation Agenda, Modern Studies “Toolbox”, p. 7. Available at https://ec.europa.eu/ in European Law, Hart Publishing, p. 72. info/sites/info/files/better-regulation-toolbox_2. 100 Juncker, J.-C. (2017) State of the Union Address. pdf. Available at: http://europa.eu/rapid/press-release_ 96 E.g. Radaelli (2018) ibid. SPEECH-17-3165_en.htm. 97 Rozenberg, O., S. Novak, S. Bendjaballah & 101 Task Force on Subsidiarity, Proportionality and R. Dehousse (2018) ‘Avoiding conflict? The EU “Doing Less More Efficiently”,Active Subsidiarity, legislative process in times of tension’, Working A New Way of Working, July 2018. p. 7. Paper 01/2018, Les Cahiers européens de Sciences 102 Task Force on Subsidiarity, Proportionality and Po, June 2018, p. 16. “Doing Less More Efficiently”, Minutes of the 6th 98 Kassim, H., S. Connolly, R. Dehousse, O. Rozenberg meeting of the Task Force: Brussels, 21 June 2018, & S. Bendjaballah (2016) ‘Managing the house: the 10.00-12.30. p. 2, available at https://ec.europa. Presidency, agenda control and policy activism in eu/commission/sites/beta-political/files/meeting- the European Commission’, Journal of European minutes-6th-meeting-task-force-subsidiarity- Public Policy, pp 17-8. 21june.pdf.

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3. While the number of proposals has d) Big on big and small on small steadily declined from Prodi through Being ‘big on big and small on smaller things’ Barroso to Juncker, the number of has been the mantra of BR since the very words per proposal has steadily beginning and the Commission Juncker increased.103 Whether this implies seems to have indeed succeeded in doing growing complexity of EU legislation, less. Juncker has been focusing on clearly increasing use of legal exemptions, or identifiable major European challenges, improved evidence-based policymaking such as, among others, sustainable demands further qualitative analysis of development, deepening the EMU, and the the individual proposals. However, the digital economy. The Juncker Commission case once more illustrates the inherent also shows why being ‘small on smaller tension between the different goals things’ is persistently more difficult to grouped within the BR agenda: it is realise. As background interviews indicate, no easy task to simplify and reduce the volume of legislation has indeed gone legislation while at the same time down.104 Yet, the implementation of ‘small on trying to rationalise and streamline the small’ in practice appears to be limited by policymaking process. a variety of factors, including the difficulty to overrule political impetus coming from Reducing red tape is progressing mostly the Commission President and his staff (e.g. as a result of the Commission’s multi- Secretary General) seeking to offer tangible annual strategic agenda. The expected advantages to citizens through a variety of effects on the reduction of red tape visible initiatives (such as Interrail Youth should not be too strong. For the internal Passes, Solidarity Corps, regulating paternity market at large, red tape depends on the and paternal leave, stopping summertime, ways in which member states organise etc.). Moreover, pressure to add details their rules and regulations. As a corollary, originates from, among others, international better regulation – generally – should be standardisation bodies, the European as high on the national agendas as on Parliament, and member states that resist the EU agenda. changing existing legislation and distrust each other regarding the extent to which Finally, reduction of EU legislation is not main policy objectives will be implemented only a matter of evidence-based policy; without detailed legislation. Although it seems it also demands a new policy objective: the case, whether the strategic packages of policy competition. The EU is now more the Juncker Commission indeed involve less harmonised than e.g. the US. detailed legislation requires a separate study.

103 Rozenberg, O., S. Novak, S. Bendjaballah & R. Dehousse (2018). 104 See also Figure 1. in the Annex.

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Annex

Figure 1 Legislative proposals and Impact Assessments published between 2000 – July 2018*

i l

Prool irecie eciio relio ol roce

* For the years 2017 and 2018, the following search criteria were used in EUR-Lex (where YEAR was replaced with 2017 or 2018 respectively):

Subdomain: Preparatory acts, Form: Proposal for a framework decision, Proposal for a directive, Recommendation for a directive, Recommendation for a decision, Proposal for a decision, Proposal for a regulation, Draft decision, Recommendation for a regulation, Draft regulation, Draft directive, Proposal for a decision without addressee, CELEX number: 5YEARPC*, Choose multiple collections: EU Preparatory acts, Exclude corrigenda: True, Date: Date of document, From: 01/01/YEAR, To: 31/12/YEAR, Search language: English, Exclude consolidated versions: True

Source: Proposals: Haege 2011, Rozenberg et al. 2018, EUR-Lex. Impact Assessments: Regulatory Scrutiny Board (Annual Reports), http://ec.europa.eu/transparency/regdoc/?fuseaction=ia&year=2018&.

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Figure 2 Legislative proposals and evaluation reports finalised between 2007 – 2016 (no information for 2017-2018)

Prool irecie eciio relio lio reor filie

Source: Proposals: Haege 2011, Rozenberg et al. 2018, EUR-Lex. Evaluation reports: http://ec.europa.eu/smart-regulation/evaluation/search/search.do.

Figure 3 Legislative proposals and public consultations concluded between 2000 – July 2018

il

Prool irecie eciio relio Plic colio e yor y

Source: Proposals: Haege 2011, Rozenberg et al. 2018, EUR-Lex. Public consultations: https://ec.europa.eu/info/consultations_en and https://web.archive.org/web/*/http://ec.europa.eu/smart-regulation/stakeholder-consultation/index_en.htm.

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Figure 4 IAs accepted by RSB vs IAs rejected by RSB (draft IAs, first submission) between 2007 – 2017

reece y B ccee y B

Source: Regulatory Scrutiny Board or Impact Assessment Board (Annual Reports)

Figure 5 Legislative proposals with IA vs legislative proposals without IA* between 2000 – July 2018

i l

Prool io Prool i

* Number of proposals with IA estimated by subtracting annual number of IAs published from annual number of legislative proposals, not including inception IAs

Sources: see previous graphs.

17 About the Clingendael Institute Clingendael – the Netherlands Institute of International Relations – is a leading think tank and academy on international affairs. Through our analyses, training and public debate we aim to inspire and equip governments, businesses, and civil society in order to contribute to a secure, sustainable and just world. www.clingendael.org  @clingendaelorg [email protected]  The Clingendael Institute +31 70 324 53 84  The Clingendael Institute

About the authors

Adriaan Schout is is Senior Research Fellow and Coordinator Europe at the Clingendael Institute. He combines research and consultancy on European governance questions for national and European institutions. He has worked on projects addressing issues of the EU presidency, EU integration and Improving EU regulation, amongst others.

Christian Schwieter is a former Research Assistant at Clingendael’s Europe and the EU Research Unit.

Disclaimer: This paper was commissioned by the Netherlands’ ministries of Foreign Affairs and Defence within the PROGRESS framework agreement, lot 3, 2018. Responsibility for the contents and for the opinions expressed rests solely with the authors. Publication does not constitute an endorsement by the Netherlands’ ministries of Foreign Affairs and Defence.