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Can We Better the European Union Better Regulation Agenda?

Published online by Cambridge University Press:  09 September 2021

Felice SIMONELLIOpen the ORCID record for Felice SIMONELLI[Opens in a new window] and
Nadina IACOB
Felice SIMONELLI
Affiliation:
Centre for European Policy Studies (CEPS), Brussels, Belgium; email: felice.simonelli@ceps.eu.
Nadina IACOB
Affiliation:
Centre for European Policy Studies (CEPS), Brussels, Belgium; email: nadina.iacob@ceps.eu.
Rights & Permissions [Opens in a new window]

Abstract

The European Commission published a new Communication on better regulation on 29 April 2021, with the aim of improving the European Union’s (EU) policymaking process. By updating the better regulation agenda to mainstream sustainable development goals and the digital and green transition and by ensuring more foresight-based policymaking, this Communication shows that the Commission is moving in the right direction. Several proposals also have great potential to simplify the better regulation process and make it more transparent. By contrast, the envisaged simplification of the public consultation process may jeopardise its effectiveness and should be carefully reconsidered. In addition, a more cautious, stepwise approach to introducing, testing and adjusting the new EU one-in, one-out system is certainly needed. This article aims to identify and assess the key changes proposed by the new Communication and to share ideas for the preparation of the new Better Regulation Guidelines and Toolbox, which are expected to translate the Communication into practice.

Information

Type
Reports
Information
European Journal of Risk Regulation , Volume 12 , Issue 4 , December 2021, pp. 849 - 860
Copyright
© The Author(s), 2021. Published by Cambridge University Press

I. Introduction

On 29 April 2021, the European Commission published a new Communication on better regulation,Footnote 1 aiming to improve the European Union’s (EU) policymaking process, whose quality already scored highly in a comparative analysis performed by the Organisation for Economic Co-operation and Development (OECD) in 2018.Footnote 2 This Communication will be followed by a revision of the Better Regulation GuidelinesFootnote 3 and Toolbox,Footnote 4 which are expected by September 2021 and will translate the Communication into practice. This article aims to identify and assess the key changes proposed by the recent Communication and to share ideas and suggestions for the preparation of the new Guidelines and Toolbox.

II. Interinstitutional agreement: the elephant in the room

Before listing the novelties of the Communication, let us start with an old elephant in the room. The new Communication places much emphasis on the limits of the Interinstitutional Agreement on Better Law-MakingFootnote 5 and on the urgent need for the Council and the European Parliament to perform impact assessments on their amendments to the Commission’s proposals. This is nothing new; rather, it is the reiteration of an age-old problem affecting the effectiveness and quality of the EU better regulation system.Footnote 6 The Commission is now stating the issue loud and clear,Footnote 7 to the point of explicitly urging the co-legislators to do more.

The 2016 Interinstitutional Agreement does not require the Council and Parliament to perform an impact assessment of their amendments to Commission proposals.Footnote 8 And, to the best of our knowledge, while the Parliament has made some (timid) efforts to assess the impacts of substantial amendments,Footnote 9 the Council de facto has not carried out any assessment so far.Footnote 10 Substantial amendments can, however, alter the expected impacts of EU law and generate unintended and unforeseen consequences for people and businesses that cannot be captured by the Commission’s impact assessments.

While there are merits to assessing the impacts of changes to the Commission’s proposals, there are also arguments in favour of continuing with the approach adopted so far by the Council and the Parliament.Footnote 11 First, better regulation is meant to inform rather than replace political decision-making. An obligation to perform impact assessments may limit the degree of political freedom of the two co-legislators representing the Member States and EU citizens.Footnote 12 Second, carrying out a serious impact assessment is a long and complex process, which could slow down if not freeze an already lengthy legislative process.Footnote 13

III. Foresight-based law-making and mainstreaming Sustainable Development Goals: good old news

The new Communication includes much old news, thus falling within what has become the standard for these types of documents, which are often ex post systematisations of what the Commission has already tried to do rather than attempts to break new ground. Two pieces of good old news are worth mentioning here: foresight-based law-making and mainstreaming the Sustainable Development Goals (SDGs) in the better regulation agenda.

1. Foresight-based law-making

Science-based and strategic foresight promises a more forward-looking approach to better regulation, making new and existing legislation fit for the future. In other words, the EU could be able to anticipate future developments and prepare accordingly. For instance, by relying on strategic foresight the EU could be able to detect strategic dependencies well before realising, for instance, that Europe is lacking the components to create vaccines or chips to build cars.Footnote 14 More foresight-based policymaking can certainly strengthen the ability of the Commission to identify existing risks and trends and take appropriate mitigating and strategic actions.Footnote 15 The real issue, however, is the “how” rather than the “what”.

The new Communication explains that the analysis performed in impact assessments, fitness checks and evaluations will take account of major trends; that foresight-related questions could be included in public consultations; and that the Regulatory Scrutiny Board will examine strategic foresight in the Commission’s work. The plan, therefore, is to make foresight more salient in the entire policy cycle. This is no big news, as the Commission has been mandating the Board to pay more attention to foresight since the beginning of 2020,Footnote 16 and the need to embed foresight into EU policymaking was already discussed in the 2020 Strategic Foresight Report.Footnote 17 What will be important is how this will be translated into practice in the Better Regulation Guidelines by ensuring a forward-looking approach to law-making while keeping well away from speculation and risky bets on what the future might look like.

On a more general note, there are reasons to question the usefulness of including specific foresight exercises in every impact assessment, evaluation or consultation, as there is a real risk of moving in different directions, with limited consistency. A foresight exercise should inform EU policy priorities and contribute to defining medium- to long-term policy goals, thus ensuring a future-proof vision for the EU law-making process. This overarching exercise could then guide more specific initiatives, creating sufficient synergies across different policy areas.

2. Mainstreaming Sustainable Development Goals in the better regulation agenda

The Commission intends to link impact assessments and evaluations to SDGs, making sure that EU legislation contributes to the 2030 sustainable development agenda. As a matter of fact, the Commission made the same commitment back in 2016 in the Communication on the next steps for a sustainable European future.Footnote 18 And, in 2017, Renda explained that the current use of better regulation in the EU appears incapable of mainstreaming sustainable development in daily regulatory practice, and he drafted a clear plan to embed the SDGs into the better regulation agenda.Footnote 19 This plan could be a source of inspiration for those Commission officials in charge of amending the Better Regulation Guidelines and Toolbox.Footnote 20 Against this background, there is an evident need to embed the SDGs in the regulatory process, as the EU has already underachieved when it comes to the Europe 2020 Strategy,Footnote 21 and no EU country is on track to achieve all SDGs on time.Footnote 22 Furthermore, the enhanced focus on sustainability would also come at a crucial time of designing and implementing plans for recovery and resilience in the context of the COVID-19 pandemic. Ensuring that the SDGs become an integral component of the regulatory process in the EU could contribute to an inclusive and sustainable recovery in the years to come.Footnote 23

IV. Stakeholder consultation: when simplification can harm effectiveness

The Commission wants to make it easier for stakeholders to participate in consultation activities that feed into the better regulation process. This is a noble goal. The idea of concentrating all of the calls for evidence in one single portal (perhaps well connected to the brand-new “Joint Legislative Portal” – see below – and with a more intuitive system for automatic notifications) certainly goes in the right direction.Footnote 24 In the same vein, the option to skip public consultations on very technical dossiers of little interest for the general public is a smart solution to avoid wasting time and taxpayers’ money on huge, multilingual consultation exercises that collect very few answers.

Any change in the consultation process, however, should not reduce its effectiveness or the ability of interested parties to truly contribute to law-making. In fact, while improvements are still needed to make consultations equally accessible to all affected parties (especially citizens and civil society groups),Footnote 25 the current consultation process is quite well structured and can inform the entire policy cycle. According to the Better Regulation Guidelines, public consultations are requiredFootnote 26 when: (1) an inception impact assessment or evaluation roadmap is published (four weeks); (2) an impact assessment or evaluation is being performed (twelve weeks, usually accompanied by multiple targeted consultations in the form of surveys, interviews, focus groups and workshops); (3) a legislative proposal is adopted by the College (eight weeks on the proposal and accompanying impact assessment); and (4) draft delegated and implementing acts are published (four weeks). In the quest for simplification, the quality and usefulness of the feedback could take a hit.

First, the new Communication proposes to combine the four-week consultation on the roadmap/inception impact assessment and the twelve-week consultation supporting the preparation of an impact assessment or evaluation. This approach undermines the rationale of the process. The roadmap/inception impact assessment is produced at a very early stage in the policy cycle, when policy problems and options are still rough drafts and Commission officials may truly benefit from new ideas presented by consulted stakeholders to better design the full-blown impact assessment or evaluation study. If the new combined consultation starts when the roadmap/inception impact assessment is published, stakeholders will likely be consulted on a rather immature analysis of the problem and very preliminary solutions. This generates a high risk of wasting stakeholders’ time on providing irrelevant or uninfluential information. If, by contrast, the new combined consultation starts only when the Commission is already working on the impact assessment or evaluation study, then the risk is that the stakeholder feedback will arrive too late in the process, when it is virtually impossible to add more options or re-scope the ongoing collection of evidence. This is a clear case where simplification does indeed harm effectiveness. We would rather suggest that the Commission: (1) further improve the quality of inception impact assessments and evaluation roadmaps; and (2) rigorously avoid, as it sometimes happens,Footnote 27 that the four weeks devoted to the initial consultation on the roadmap/inception impact assessment overlap with the twelve-week public consultation feeding into the impact assessments and evaluations. This is the best approach for making the initial four-week consultation even more meaningful and ascertaining that all stakeholders can truly contribute to designing new policies and evaluation exercises.Footnote 28

Second, the new Communication proposes to consult, where possible, stakeholders only once when revising existing legislation and evaluating spending programmes, instead of having two separate consultations for the evaluation and the ensuing impact assessment. Merging the public consultation for the evaluation with the one for the impact assessment of new legislation may, however, reduce the effectiveness of the consultation process. In this respect, one of the most controversial tools of the current better regulation toolbox is the so-called back-to-back approach (ie when an evaluation and impact assessment are performed in parallel).Footnote 29 This approach, which aims to accelerate the process, puts Commission officials in the suboptimal position of starting to devise a new piece of legislation with no or limited knowledge of the impacts of the piece of legislation to be replaced, thus de facto violating the “evaluation first” principle.Footnote 30 Better planning, rather than shortcuts, is the best approach for speeding up the process while keeping it meaningful.

V. One-in, one-out: a challenging road to implementation

The proposal to introduce the one-in, one-out (OIOO) principle in the EU law-making process is, undoubtedly, the most controversial component of the new Communication. The OIOO principle, in its simplest form, requires repealing one existing piece of legislation for every new piece of legislation. In addition to keeping regulatory costs under control, OIOO usually also means that that costs generated by the new legislation should not be higher than those linked to the repealed legislation.Footnote 31 The OIOO approach was adopted, in different forms, by several countries around the world.Footnote 32 Some countries went even further by introducing one-in, two-out (eg FranceFootnote 33 and the USAFootnote 34) or even one-in, three-out (the UK, for a short period)Footnote 35 approaches.

There are several reasons to be sceptical about the OIOO approach to better law-making. For instance, there is limited empirical evidence to show that the application of OIOO has so far generated the expected results.Footnote 36 The OIOO approach will also add another layer of complexity to the EU law-making process and may even slow it down.Footnote 37 In addition, OIOO places too much emphasis on costs and may promote deregulation by simply overlooking the fact that new legislation can be justified whenever expected benefits are higher than costs.Footnote 38 Focus on regulatory costs is understandably less of a priority at a historical moment when EU institutions are aiming to deliver welfare by introducing net benefit-orientated policies.Footnote 39 While one can debate whether or not to go for such a quantitative approach at the EU level, “the die has been cast” with this Communication and the EU OIOO approach will soon be in place. This article thus limits itself to scrutinising the planned implementation of the EU OIOO approach, leaving aside the discussion on the effectiveness of the approach itself.

The idea of introducing the OIOO principle in the EU Better Regulation Guidelines was already mentioned by Ursula von der Leyen when presenting the working methods of the Commission in December 2019.Footnote 40 In this context, the new Communication on better regulation presents the main elements of the future EU OIOO system, which will apply to all EU legislation.

First, the system will not aim to repeal one piece of legislation when enacting a new one, nor will it offset the overall costs generated by new legislation. It will rather aim to remove existing administrative burdens when introducing new burdens in the same policy area.Footnote 41 Administrative burdens (ie costs borne by businesses, citizens and other stakeholders as a result of administrative activities performed to comply with the information obligations included in legal rules) usually represent a small portion of the overall regulatory costs.Footnote 42 This is a limitation that may water down the cost-cutting nature of the OIOO principle.

Second, the Commission will look at the cumulative costs of existing and new EU legislation in each policy area and make sure to compensate the new administrative burdens placed on people and businesses in a given legislative proposal with savings in the same policy area. Nevertheless, several exceptions will be possible: (1) if an “out” cannot be identified in the same year, then it will be reported in the next year (ie costs can increase under the promise to reduce them in the future); (2) if an “out” cannot be identified in the same policy area, then it can be taken from a different policy area (eg a given directorate can increase regulatory costs as long as another directorate will cut costs); and (3) if an “out” cannot be identified in the same area, then the “political will” of the Commission could also decide to exempt the new piece of legislation from the system. The proposed exceptions may further dilute the ability of the EU OIOO system to keep regulatory costs under control.

Third, what is even more concerning is the overly ambitious (to the point of unrealistic) timeline proposed in the Communication, which could affect the quality and effectiveness of the EU OIOO system itself (especially if one considers the intricacy of dealing with regulatory costs that largely depend on the co-legislators’ amendments and national implementation of EU legislation). The Commission committed to pilot the EU OIOO system in the second half of 2021 and to implement it in the 2022 Commission Working Programme (which is already under preparation). We identify three factors that make the timeline unrealistic:

  • First, designing an OIOO system that applies to all pieces of legislation with options for “banking” and “trading” costs across years and between directorates and with transparent rules to grant exemptions (without compromising the functioning of the system itself) is not an easy task. This may actually take much more time and effort than expected.

  • Second, training policymakers to assimilate the OIOO philosophy and implement the new system, running a pilot and adjusting the system based on the pilot results, may require more than six months.

  • Third, and most importantly, the EU OIOO approach sketched in the proposal requires measuring, in each policy area, the cumulative costs of EU legislation for individuals and businesses. The Commission has already performed this type of exercise on several industrial sectorsFootnote 43 by relying on the cumulative cost assessment (CCA) methodology.Footnote 44 Performing a CCA is a very complex and time-consuming exercise,Footnote 45 which can by no means be completed, in any policy area, by the end of 2021.

We would suggest, therefore, taking a more cautious approach based on a multi-year plan to gradually introduce, test and adjust the EU OIOO system, thereby limiting side effects (including administrative and enforcement costs stemming from the implementation of the OIOO system itself). In this regard, in 2019, the Centre for European Policy Studies (CEPS) drafted a possible implementation plan, which could serve as a source of inspiration to add an OIOO chapter to the Better Regulation Guidelines.Footnote 46

VI. Other noteworthy changes

Three additional novelties are worth mentioning, as they have great potential to improve the EU better regulation agenda.

  • A single digital gateway to EU law. The Commission aims to create an interinstitutional database – the so-called Joint Legislative Portal – where all official documents, studies, datasets and other evidence concerning a certain policy initiative will be gathered and made accessible to the public. This is a welcome step, as searching files across the web portals of the three institutions is not an easy task for researchers and consultants who are expert in EU policy, let alone for the wider public. The three institutions should work on this initiative as soon as possible and make sure to provide the most intuitive layout and user-friendly experience possible in order to avoid information overload. A starting point could be the so-called “legislative train” created by the European Parliament.Footnote 47

  • Evaluate first, but not too early. The Commission acknowledges that some review clauses included in EU legislation set unrealistic deadlines for carrying out evaluation exercises. For most EU legislation, the first review is due between one and three years from the year of application (or transposition deadline).Footnote 48 This rarely allows for enough evidence to be collected, even on the shortest-term effects of EU legislation, let alone on the mid- to long-term impacts. The Commission is, therefore, asking the co-legislators to draw a clear line between implementation reports (focusing on the way legislation is implemented and applied) and evaluations (assessing interim and ex post impacts of legislation and identifying room for improvements) and to ensure that evaluations are only performed when sufficient data are available/can be collected. This call was already included in the 2016 Interinstitutional Agreement,Footnote 49 and it represents another case where the outcome of the better regulation process largely depends on decisions taken by the Council and Parliament.

  • Mainstreaming the digital and green transition. Besides mainstreaming SDGs into the EU better regulation system, special emphasis should be placed on supporting the twin transition. This approach is translated into three commitments: (1) where relevant, stakeholder consultations will have to cover the environmental and digital dimensions; (2) the analysis of the “preferred option” in impact assessments will also consider the “do no significant harm” and “digital by default” principles; and (3) all evaluations will search for scope to minimise environmental impacts and favour the digital transformation. This seems to be a good plan, to be carefully implemented in the new Better Regulation Guidelines. Most likely the Commission will have to add a new tool in the Better Regulation Toolbox to capture the “do no significant harm” dimension, and it will have to thoroughly revise the “digital check” tool, which already exists but is very rarely applied.Footnote 50

VII. Concluding remarks

The EU better regulation system is one of the most advanced in the world. The EU approach to stakeholder engagement, impact assessment and ex post evaluation scores quite highly, especially when it comes to methodology, transparency and oversight and quality control.Footnote 51 With the new Communication, the Commission is taking further steps in the right direction, in many respects. There is, however, still room for improvement.

Ensuring more foresight-based policymaking and updating the better regulation agenda to mainstream SDGs and the digital and green transition are certainly two major improvements. In addition, several proposed changes have great potential to simplify the better regulation process and make it more transparent, including: (1) the upcoming “Joint Legislative Portal” collecting all documents and evidence on policy initiatives; (2) the idea of concentrating all calls for evidence in the stakeholder consultation process in one single portal; (3) the option to skip public consultations on very technical dossiers; and (4) the commitment to set review clauses so as to ensure that evaluations are only performed when sufficient data are available.

By contrast, the effectiveness of the stakeholder engagement process will be harmed if the Commission combines the four-week consultation on the roadmap/inception impact assessment with the twelve-week consultation supporting the preparation of an impact assessment or evaluation and/or merges the public consultations for the evaluation and impact assessment of a given piece of legislation to be revised. This proposed simplification of the consultation process should be reconsidered. In addition, a more cautious, stepwise approach to introducing, testing and adjusting the EU OIOO system is certainly needed.

Finally, the call for more impact assessments of the Council’s and Parliament’s amendments to the Commission’s proposals may remain unanswered. Furthermore, the implications of such a call for the speed of the legislative process, the degree of political freedom of co-legislators and institutional balance should be further assessed.

Footnotes

The authors would like to thank Alberto Alemanno, Andrea Renda and the anonymous reviewers for taking the time and effort necessary to review the article and for providing valuable comments and suggestions. The views expressed in this article are, however, those of the authors only. The authors declare no competing interests.

1 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation: Joining forces to make better laws, COM/2021/219 final <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0219> (last accessed 25 June 2021).

2 OECD, “OECD Regulatory Policy Outlook 2018” (2018) <https://www.oecd-ilibrary.org/governance/oecd-regulatory-policy-outlook-2018_9789264303072-en> (last accessed 25 June 2021).

3 European Commission, “Commission Staff Working Document. Better Regulation Guidelines”, SWD(2017) 350 <https://ec.europa.eu/info/sites/default/files/better-regulation-guidelines.pdf> (last accessed 25 June 2021).

4 European Commission, “Better regulation Toolbox” (2017), Document complementing the Better Regulation Guidelines (supra, note 3) <https://ec.europa.eu/info/sites/default/files/better-regulation-toolbox_2.pdf> (last accessed 25 June 2021).

5 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, OJ L 123/1.

6 For instance, already in the 2015 Communication on better regulation the Commission was asking the European Parliament and the Council to carry out an impact assessment on any substantial amendment proposed during the legislative process. See: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results – an EU agenda, COM(2015) 215 final <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015DC0215&from=EN> (last accessed 25 June 2021).

7 In the 2019 Communication on better regulation, the Commission stated that: “The [Interinstitutional] Agreement is still quite new, but has delivered some notable successes”. See: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation: taking stock and sustaining our commitment, COM(2019) 178 final, p 12 <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2019:178:FIN> (last accessed 25 June 2021).

8 “The European Parliament and the Council will, when they consider this to be appropriate and necessary for the legislative process, carry out impact assessments in relation to their substantial amendments to the Commission’s proposal”. Art 15 of the Interinstitutional Agreement, supra, note 5.

9 W Hiller, “European Parliament work in the fields of Impact Assessment and European Added Value. Activity Report for July 2019 to December 2020” (2021) European Parliamentary Research Service <https://www.europarl.europa.eu/RegData/etudes/STUD/2021/662616/EPRS_STU(2021)662616_EN.pdf> (last accessed 25 June 2021).

10 The Council did not carry out impact assessments, in spite of an attempt to create a capacity to carry out this analytical work by launching a tender for a framework contract (with a quite limited budget). See: Note from the General Secretariat of the Council to the Permanent Representatives Committee, Follow-up to the IIA on Better-Law Making – Impact assessment within the Council (3 April 2017) 7582/17 <https://data.consilium.europa.eu/doc/document/ST-7582-2017-INIT/en/pdf> (last accessed 25 June 2021).

11 Please note that it is not by chance that the US Regulatory Impact Analysis system applies only to federal regulation (ie secondary legislation, mostly of a technical nature). A Renda et al, “Assessing the costs and benefits of regulation” (2013) <https://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/131210_cba_study_sg_final.pdf> (last accessed 25 June 2021).

12 Indeed, the interplay between policy and political discussion is a key consideration when analysing the Interinstitutional Agreement. See CM Radaelli, “Halfway through the better regulation strategy of the Juncker commission: what does the evidence say?” (2018) 56(S1) Journal of Common Market Studies 85–95, pp 91–92 <https://onlinelibrary.wiley.com/doi/abs/10.1111/jcms.12768> (last accessed 25 June 2021). Furthermore, it is not only the impact on the degree of political freedom that is important to consider, but also broader potential implications on institutional balance. See, for instance, the discussion based on the 2015 proposal for the Interinstitutional Agreement, subsequently adopted in 2016: A Alemanno, “How much better is better regulation? Assessing the impact of the Better Regulation Package on the European Union – a research agenda” (2015) 6(3) European Journal of Risk Regulation 344–56 <https://multimediafluids.uam.elogim.com/core/journals/european-journal-of-risk-regulation/article/abs/how-much-better-is-better-regulation/863E24306B94D7299FD2150087A5A9CA> (last accessed 25 June 2021).

13 Radaelli explains that evidence-based activities may be “grains of sand that can slow down or make it more difficult to talk ‘politically’, especially in trilogues” (Radaelli, supra, note 12, pp 91–92).

14 European Commission, “Commission Staff Working Document. Strategic dependencies and capacities”, SWD(2021) 352 final <https://ec.europa.eu/info/sites/default/files/swd-strategic-dependencies-capacities_en.pdf> (last accessed 25 June 2021).

15 A Renda and F Simonelli, “Study supporting the interim evaluation of the innovation principles” (2019) <https://www.ceps.eu/wp-content/uploads/2019/11/KI0219819ENN.en_.pdf> (last accessed 25 June 2021).

16 European Commission, “Annual Report 2020 – Regulatory Scrutiny Board” (2021) <https://ec.europa.eu/info/sites/default/files/rsb_report_2020_en_0.pdf> (last accessed 25 June 2021).

17 Communication from the Commission to the European Parliament and the Council, 2020 Strategic Foresight Report, Strategic Foresight – Charting the Course Towards a More Resilient Europe, COM(2020)493 final <https://ec.europa.eu/transparency/documents-register/detail?ref=COM(2020)493&lang=en> (last accessed 25 June 2021).

18 “The use of the Commission’s better regulation tools is another way to ensure further mainstreaming of sustainable development in European policies”. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Next steps for a sustainable European future, European action for sustainability, COM(2016) 739 final, p 15 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016DC0739&from=EN> (last accessed 25 June 2021).

19 A Renda, “How can Sustainable Development Goals be ‘mainstreamed’ in the EU’s Better Regulation Agenda?” (2017) 2017/12 CEPS Policy Paper <https://www.ceps.eu/ceps-publications/how-can-sustainable-development-goals-be-mainstreamed-eus-better-regulation-agenda/> (last accessed 25 June 2021).

20 Radaelli also emphasises the need for amending the Better Regulation Guidelines and tools to integrate the perspective of sustainability and the SDGs. In particular, Radaelli proposes the Commission adopt the principle of “do no significant harm” for the SDGs when carrying out impact assessments of proposals. See: CM Radaelli, “The state of play with the Better Regulation Strategy of the European Commission” (2021) 2021/6 STG Policy Papers, p 5 <https://cadmus.eui.eu/bitstream/handle/1814/70901/PB_Radaelli_2021_06.pdf?sequence=1&isAllowed=y> (last accessed 25 June 2021).

21 W Becker et al, “Wrapping up the Europe 2020 strategy: a multidimensional indicator analysis” (2020) 8(100075) Environmental and Sustainability Indicators <https://www.sciencedirect.com/science/article/pii/S2665972720300593> (last accessed 25 June 2021).

22 M Hametner and M Kostetckaia, “Frontrunners and laggards: how fast are the EU member states progressing towards the sustainable development goals?” (2020) 177(106775) Ecological Economics <https://doi.org/10.1016/j.ecolecon.2020.106775> (last accessed 25 June 2021); SDSN and IEEP, “The 2020 Europe Sustainable Development Report: meeting the Sustainable Development Goals in the face of the COVID-19 pandemic” (2020) Sustainable Development Solutions Network and Institute for European Environmental Policy, Paris and Brussels <https://eu-dashboards.sdgindex.org/chapters/part-1-performance-of-european-countries-against-the-sdgs> (last accessed 25 June 2021).

23 C Fetting, “Impacts of the Covid-19 pandemic on sustainable development and the SDGs in Europe” (2020) ESDN Report, July 2020, ESDN Office, Vienna <https://www.esdn.eu/fileadmin/ESDN_Reports/ESDN_Report_July_2020.pdf> (last accessed 25 June 2021).

24 Such an initiative would facilitate the access to consultation activities by streamlining existing channels to contribute feedback to Commission initiatives. To stimulate citizen engagement further, Alemanno (forthcoming) argues, for instance, for a “one-stop shop to the EU participatory infrastructure” that would bring together public input from all of the participatory channels, including, for instance, petitions and European citizens’ initiatives beyond input sought as part of the Better Regulation process. See: A Alemanno, Strengthening the Role and Impact of Petitions as an Instrument of Participatory Democracy. Lessons Learnt from a Citizens’ Perspective 10 Years after the Entry into Force of the Lisbon Treaty (European Union forthcoming).

25 For further details, see: A Alemanno, “Levelling the EU participatory playing field: a legal and policy analysis of the Commission’s public consultations in light of the principle of political equality” (2020) 26(1–2) European Law Journal 114–35 <https://onlinelibrary.wiley.com/doi/10.1111/eulj.12371> (last accessed 25 June 2021).

26 The obligation to consult is embedded in the Treaty on the European Union. According to Art 11(3), the “European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent”. In addition, Protocol No. 2 to the Treaty on the Functioning of the European Union further specifies that “before proposing legislative acts, the Commission shall consult widely” (Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2012] 2012/C 326/01). It is worth mentioning, however, that a legal framework for EU public participation, which can be legally enforced before courts, is still missing (Alemanno, supra, note 25).

27 Indeed, a 2019 report of the European Court of Auditors noted that not all roadmaps or inception impact assessments were published at least four weeks before the twelve-week public consultation was launched, as required. European Court of Auditors, “Special Report: ‘Have your say!’: Commission’s public consultations engage citizens, but fall short of outreach activities” (2019) pp 22–23 <https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=50895> (last accessed 7 July 2021). Recent examples of overlaps between the roadmap feedback period and the public consultation include the following initiatives: “Tax avoidance – fighting the use of shell entities and arrangements for tax purposes” <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12999-Tax-avoidance-fighting-the-use-of-shell-entities-and-arrangements-for-tax-purposes_en> (last accessed 25 June 2021); and “Data Act & amended rules on the legal protection of databases” <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13045-Data-Act-&-amended-rules-on-the-legal-protection-of-databases_en> (last accessed 25 June 2021).

28 Looking at examples of consultations finalised in 2020, stakeholders did contribute to the different stages of the consultation process. In some cases where the feedback period on the roadmap/inception impact assessment did not overlap with the twelve-week public consultation, the contributions received on the roadmap/inception impact assessment were of a relatively important size, amounting to around a third of the contributions received on the public consultation. In this regard, it is important to consider that the twelve-week public consultation may be relatively easier to complete for a wide range of stakeholders not only because it lasts for more weeks, but also because it is based on an online questionnaire, mostly including closed-ended answers. By contrast, the consultation on the roadmap/inception impact assessment, which requires the submittal of open-text comments or a position paper on the topic, may attract lower numbers of contributions, but ones that are richer in ideas and positions of stakeholders. Examples include the following initiatives: “European vehicle emissions standards – Euro 7 for cars, vans, lorries and buses” <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12313-European-vehicle-emissions-standards-Euro-7-for-cars-vans-lorries-and-buses_en> (last accessed 7 July 2021); and “Fluorinated greenhouse gases – review of EU rules (2015–20)” <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12479-Fluorinated-greenhouse-gases-review-of-EU-rules-2015-20-_en> (last accessed 7 July 2021).

29 European Commission, “Better Regulation Toolbox, Tool #52” (2017) <https://ec.europa.eu/info/sites/default/files/better-regulation-toolbox_2.pdf> (last accessed 25 June 2021).

30 The back-to-back approach to evaluations and impact assessments may have some potential merits, especially when the two exercises are still performed in sequence but in the context of the same service contract. In fact, having the same team of Commission officials and consultants working on both exercises can maximise synergies, increase consistency and reduce overlaps between the evaluation and the impact assessment.

31 D Trnka and Y Thuerer, “One-in, x-out: regulatory offsetting in selected OECD countries” (2019) OECD Regulatory Policy Working Papers, No. 11, OECD Publishing, Paris <https://doi.org/10.1787/67d71764-en> (last accessed 25 June 2021).

32 A Renda et al, “Feasibility study: introducing the ‘one-in-one-out’ in the European Commission” (2019) <https://www.ceps.eu/wp-content/uploads/2019/12/Feasibility-Study.pdf> (last accessed 25 June 2021).

33 Circulaire du 26 juillet 2017 relative à la maîtrise du flux des textes réglementaires et de leur impact, JORF n°0175 du 28 juillet 2017 <https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000035297602/> (last accessed 25 June 2021).

34 Donald Trump introduced the one-in, two-out approach with Executive Order 13771 on “Reducing Regulation and Controlling Regulatory Costs”. More specifically, Trump’s approach was a one-in, two-out in terms of pieces of legislation and a OIOO in terms of costs, as it required that the new legislation would not generate higher costs than the combined costs of the two repealed pieces of legislation. Executive Order 13771 was, however, revoked by Joe Biden during the very first day of his presidential mandate. See: E.O. 13771 of 30 January 2017 <https://www.federalregister.gov/documents/2017/02/03/2017-02451/reducing-regulation-and-controlling-regulatory-costs> (last accessed 25 June 2021).

35 Reportedly, the application of the OIOO approach in the UK has been suspended. See: M Stanley, “Regulatory budgets, one in/three out, etc.” (Understanding regulation) <https://www.regulation.org.uk/deregulation-regulatory_budgets.html> (last accessed 25 June 2021).

36 Hahn and Renda explain that most of the countries where the OIOO approach was applied so far failed to demonstrate improvements in the economic efficiency of regulation. R Hahn and A Renda, “Understanding regulatory innovation: the political economy of removing old regulations before adding new ones” (2017) Comparative Political Economy: Regulation eJournal <https://www.semanticscholar.org/paper/Understanding-Regulatory-Innovation%3A-The-Political-Hahn-Renda/2912383d672ea1318ee3e09769c2be0038ef41bb> (last accessed 25 June 2021). Also the UK National Audit Office confirmed that there is no evidence of effective regulatory cost reduction in the UK: National Audit Office, “The Business Impact Target: cutting the cost of regulation” (2016) <https://www.nao.org.uk/report/the-business-impact-target-cutting-the-cost-of-regulation/> (last accessed 25 June 2021).

37 For an overview of the reasons why the OIOO approach should not be applied to the EU better regulation system please see: E Golberg, “The jury is still out on one-in-one-out” (The Regulatory Review, 3 February 2020) <https://www.theregreview.org/2020/02/03/golberg-jury-still-out-one-in-out/> (last accessed 25 June 2021).

38 Renda warned about the potential negative consequences of the one-in, two-out approach on the quality of regulation and social welfare in the USA. See: A Renda, “One step forward, two steps back? The new U.S. regulatory budgeting rules in light of the international experience” (2017) 8(3) Journal of Benefit–Cost Analysis 291–304 <https://doi.org/10.1017/bca.2017.18> (last accessed 25 June 2021).

39 Radaelli, supra, note 20.

40 European Commission, “The working methods of the von der Leyen Commission: striving for more at home and in the world” (4 December 2019) <https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6657> (last accessed 25 June 2021).

41 Please note that Section 5.1 of the new Communication on better regulation always refers to “burdens”; Box 2 of the Communication explains that only “administrative costs” will be offset. Supra, note 1.

42 Regulatory costs include both the direct and indirect costs of regulation. Direct costs include compliance costs (charges, substantive compliance costs and administrative burdens) and hassle costs. Renda et al, supra, note 11. By way of example, on average, administrative burdens represent less than 7% of the overall regulatory costs imposed by EU legislation on the glass sector and about 11% of the EU regulatory costs borne by the ceramics sector. CEPS, Cumulative Cost Assessment of the EU Ceramics Industry (2017) 339 <https://www.ceps.eu/wp-content/uploads/2017/08/CCA%20CERAMICS_FinalReport.pdf> (last accessed 8 July 2021); CEPS, Cumulative Cost Assessment of the EU Glass Industry (2017) 283 <https://www.ceps.eu/wp-content/uploads/2017/08/CCA%20GLASS_Final%20Report.pdf> (last accessed 8 July 2021).

43 CCAs were performed on the following industries: aluminium, ceramics, chemicals, forest-based, glass and steel. CEPS, Assessment of Cumulative Cost Impact for the Steel and the Aluminium Sectors, Final Report for Aluminium (2013) 239 <https://www.ceps.eu/wp-content/uploads/2015/04/final-report-aluminium_en.pdf>; CEPS, Cumulative Cost Assessment of the EU Ceramics Industry, supra, note 42; Technopolis, Cumulative Cost Assessment for the EU Chemical Industry (2016) 171 <https://op.europa.eu/en/publication-detail/-/publication/8eb1b47a-ee94-11e6-ad7c-01aa75ed71a1/language-en>; Technopolis, An Assessment of the Cumulative Cost Impact of Specified EU Legislation and Policies on the EU Forest-based Industries (2016) 271 <https://www.technopolis-group.com/wp-content/uploads/2020/02/An-assessment-of-the-cumulative-cost-impact-of-specified-EU-legislation-and-policies-on-the-EU-forest-based-industries.pdf>; CEPS, Cumulative Cost Assessment of the EU Glass Industry, supra, note 42; CEPS, Assessment of Cumulative Cost Impact for the Steel Industry (2013) 259 <https://www.ceps.eu/wp-content/uploads/2015/04/steel-cum-cost-imp_en.pdf>. All references in this footnote last accessed on 8 July 2021.

44 L Schrefler et al, “A new tool in the box? The cumulated cost assessment” (2015) 6(1) European Journal of Risk Regulation 68–78 <https://doi.org/10.1017/S1867299X00004293> (last accessed 25 June 2021).

45 By way of example, the CCAs on ceramics and glass lasted more than eighteen months. CEPS, Cumulative Cost Assessment of the EU Ceramics Industry, supra note 42; CEPS, Cumulative Cost Assessment of the EU Glass Industry, supra, note 42.

46 Renda et al, supra, note 32.

47 European Parliament, “Legislative Train Schedule” <https://www.europarl.europa.eu/legislative-train/> (last accessed 25 June 2021).

48 I Kiendl Krišto with V Poutouroudi, “Review clauses in EU legislation. A rolling check-list” (2018) European Parliament Research Service <https://www.europarl.europa.eu/RegData/etudes/STUD/2018/621821/EPRS_STU(2018)621821_EN.pdf> (last accessed 25 June 2021).

49 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, OJ L 123, 12.5.2016.

50 European Commission, “Better Regulation Toolbox. Tool #27” (2017) <https://ec.europa.eu/info/sites/default/files/better-regulation-toolbox_2.pdf> (last accessed 25 June 2021).

51 OECD, supra, note 2.