The European Commission’s recommitment to better regulation is yet to be proven

In the face of increased pressure from European Union countries and business interests to reduce the complexity and volume of EU law, the European Commission has published a plan for ‘A Simpler, Clearer and Better Enforced EU Rulebook’. The plan, issued on 28 April, responds to a European Ombudsman finding of “procedural shortcomings” in how draft EU legislation is drawn up and reasserts the Commission’s commitment to good regulatory practice and improving the application of EU law.

The fact that there is a plan is positive. However, it falls short in three ways: it presents longstanding measures as new solutions to regulatory overload and complexity without looking at whether they have worked in the past; the new initiatives are ill-defined; and the new measures in the plan may not be sufficient to improve the policy preparation and implementation process to ensure that EU law delivers intended results.

The plan reaffirms the Commission’s commitment to high international standards of regulatory policy and governance and to established principles and practices agreed between the European institutions. For example, the Commission commits to working with EU countries to limit regulatory creep and to prioritise implementation and enforcement of existing laws.

This is necessary if EU law is to bring benefits to citizens at minimum cost. However, these already form part of the regulatory policy framework and echo commitments made in previous policy documents. There is no attempt to analyse why they have not so far been able to respond to criticisms of the ever-increasing number, complexity, cost and administrative burden of EU laws. 

Second, the plan is opaque about the new concepts introduced to bring about improved policy preparation. For example, a distinction is made between major initiatives and so-called targeted initiatives (those which do not alter the policy objectives of existing legislation). It seems that only major initiatives will be subject to full impact assessment and consultation requirements. Targeted initiatives would seemingly escape these requirements, with assessments focusing only on costs and benefits rather than a broader examination of impacts and options. The Regulatory Scrutiny Board’s recommendations would not be binding for targeted impact assessments – a diminution of its oversight role. 

The plan calls for a “regulatory deep cleaning” of the body of EU law, but there is no explanation of what this will entail. 

The plan commendably calls for restricting the use of delegated and implementing acts (supplementary details on how to implement a basic law). These have mushroomed in recent years, often being introduced by the European Parliament or the Council when negotiating over a Commission proposal. It is unclear how the Commission will reduce their use without some sort of agreement with the other institutions. There is no indication that these acts, which can be a source of regulatory burden, will be impact-assessed. 

The third shortcoming of the Commission’s plan is its lack of ambition. The European Parliament and the Council have not conducted impact assessments of amendments to Commission proposals, showing disrespect for evidence-based policymaking and potentially increasing complexity and costs in adopted legislation. The Commission intends to work with the other institutions to identify what constitutes a major amendment. This is a small step forward but hardly sufficient. The Commission could have committed to assessing the impact of amendments using the same methodology as that employed for the original proposal. 

The plan does specify that a derogation from the impact assessment requirement may be invoked in urgent situations with the criterion of “political context creating a need for urgent action”, though this mirrors previous justifications that were strongly criticised by the Ombudsman. A more demanding standard would have focused on the notion of urgency arising from circumstances beyond the Commission’s control. 

Finally, the Commission does not take the opportunity to streamline the Better Regulation requirements, such as regulatory budgeting, competitiveness evaluation and strategic foresight analysis, which have ballooned in number and risk turning Better Regulation into a box-ticking exercise. There is also no mention of measures needed to strengthen the system, such as improving the Commission’s analytical capacity and strengthening evaluation and oversight.

The Commission is justifiably concerned about the complexity and cost of the body of EU law and has good reason to pursue a simplification or even a deregulation agenda. This is a political choice. But it should not escape sound analysis and consultation, the foundations of evidence-based policy development. The latest plan does not generate confidence that the Commission will comply with its own Better Regulation guidelines or take steps to strengthen good policy making. Rather, despite the rhetoric, it leaves the impression that the trend of diluting of good regulatory practice may become the norm.