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