European impact assessment and the choice of alternative regulatory instruments

The Impact of Legislation: A Critical Analysis of Ex Ante Evaluation

Volumn , Issue , 2009, Pages 137-174

  Meuwese, Anne ^a   Senden, Linda ^a  

^a NONE

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EID: 84876426261     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004170209.i-280     Document Type: Chapter

References (57)

1. European Commission, Second strategic review of Better Regulation in the European Union, COM(2008) 32 fi nal, p. 2. At a Public Hearing of the European Economic and Social Committee on 'Th e Current State of European Self- and Co-Regulation' on 31 March 2008, this basic assumption was explicitly confi rmed by Mr. Italianer, Deputy Secretary General of the European Commission, in charge of Better Regulation.
2. Inter-Institutional Agreement on Better Lawmaking (2003) - European Commission, European Parliament and Council of Ministers, Inter-Institutional Agreement on Better Lawmaking, OJ 2003 C 321/01, point 16. To be further discussed in section III
3. European Commission, Impact Assessment Guidelines, SEC(2005) 791 (update of March 2006). Th e Guidelines can be downloaded at ec.europa.eu/governance/impact/docs/key_docs/sec_2005_0791_en.pdf, 8 September 2008.
4. Often simply referred to as the 'impact assessment' even if in fact the term 'impact assessment' covers the whole process and not just the report.
5. For an overview of the EU IAs carried out thus far, see ec.europa.eu/governance/impact/practice_en.htm, 22 August 2008. 6 Regulatory Impact Analysis: Best Practices in OECD Countries (OECD Publications, Paris 1997). More recently, Measuring Regulatory Quality, OECD Policy Brief, April 2008.
6. Claudio M. Radaelli and Anne C.M. Meuwese, 'Better Regulation in Europe: Between Public Management and Regulatory Reform' (2009 forthcoming) Public Adminstration.
7. Claudio M. Radaelli and Anne C.M. Meuwese, 'Better Regulation in the European Union. Th e political economy of impact assessment' in Klaus Jacob et al. (eds.), EVIA handbook (Springer, 2009 forthcoming).
8. Claudio M. Radaelli, De Nobis Fabula Narratur (Th e Story Was About Us): Th ree Better Regulation Tales, Dinner Speech delivered to the meeting on Strategic Policy Making and Regulatory Reform, 4 June 2007
9. Claudio M. Radaelli, Th e architecture of regulatory impact assessment, presentation held at the EVIA fi nal conference, 16 January 2008. Th e presentation is downloadable at www.centres.ex.ac.uk/ceg/research/riacp/documents/EVIAfinalconferenceArchitectureofRIARadaelliwithanimations.pdf, 8 September 2008.
10. Th is also connects to the concepts of input respectively output legitimacy. Fritz Scharpf, Governing in Europe: Eff ective and Democratic? (Oxford University Press, Oxford 1999).
11. Th e Member States that have programmes for the reduction of administrative burden in place at the national level, or are interested in initiating one, are united in the informal 'SCM network', see www.administrative-burdens.com, 22 August 2008.
12. Th e SCM measures administrative costs in terms of time spent by, originally, businesses (but in recent versions the model has been extended to citizens and public authorities) to comply with information obligations imposed by public regulation. Th e methodology boasts a high degree of precision (bottom-up measurement instead of top-down estimation), but has the drawback of only looking at information obligations. Th is limitation is often overlooked by proponents on the model and, besides, it is debatable whether burdens fl owing from information obligations are a suitable proxy for overall administrative burdens.
13. Anthony I. Ogus, Regulation: Legal Form and Economic Th eory (Hart Publishing, Oxford 2004).
14. Jacques Pelkmans et al., 'Better EU Regulatory Quality: Assessing Current Initiatives and New Proposals' in Giampolo Galli and Jacques Pelkmans (eds.), Regulatory Reform and Competitiveness in Europe - Volume I, Horizontal Issues (Edward Elgar, Cheltenham 2000), pp. 461-526.
15. Jonathan B. Wiener, 'Better Regulation in Europe' (2006) 59 Current Legal Problems, pp. 447-518.
16. Th e Mandelkern Group was composed of Member State experts on better regulation and chaired by Dieudonné Mandelkern, a French government offi cial. It was set up by Ministers of Public Administration, in November 2000 to provide recommendations for a strategy to improve the European regulatory environment. Th e Mandelkern report was presented to the Laeken European Council in November 2001.
17. European Commission, Better Regulation for Growth and Jobs in the European Union, Communication from the Commission, COM(2005) 97, 16 March 2005 (Brussels 2005).
18. Th e Commission already issued internal guidelines in 2002, namely 'Impact Assessment in the Commission - Guidelines' and 'A Handbook for Impact Assessment in the Commission - How to do an Impact Assessment', but the uniform use of these guidance documents was not actively promoted and political endorsement of the content, as happened with the 2005 Guidelines, was lacking.
19. Th e Evaluation Partnership (TEP), Final Report, p. 90. Th e report can be downloaded from ec.europa.eu/governance/impact/key_en.htm, 8 September 2008.
20. EU-US High-Level Regulatory Cooperation Forum, Review of the Application of EU and US Regulatory Impact Assessment Guidelines on the Analysis of Impacts on International Trade and Investment, Final Report and Conclusions, prepared by the Offi ce of Management and Budget and the Secretariat General of the European Commission, Brussels/Washington DC, 13 May 2008, ec.europa.eu/governance/better_regulation/documents/eu_us_consult/joint_paper_sg_oira_050808.pdf, 22 August 2008.
21. European Commission, White Paper on Governance, COM(2001) 428 fi nal.
22. European Commission, Communication on Impact Assessment, COM(2002) 276 fi nal, p. 3.
23. Th e following defi nition of 'regulatory regime' is given by Hood et al.: 'the complex institutional geography, rules, practice and animating ideas associated with regulating particular aspects of social and economic life'. Christopher Hood et al., Th e government of risk: understanding risk regulation regimes (Oxford University Press, Oxford 2001), p. 9.
24. European Commission, Draft Impact Assessment Guidelines, May 2008 (Brussels). Th e Draft Commission Impact Assessment Guidelines can be downloaded at ec.europa.eu/governance/impact/consultation/ia_consultation_en.htm, 22 August 2008.
25. It is unclear whether this should be interpreted as a common methodology for measuring administrative burdens or for wider categories of costs as the Doorn report seems to equateadministrative burdens with regulatory burdens. European Parliament, Report on assessment of the impact of Community legislation and the consultation procedures, Committee on Legal Aff airs and the Internal Market (rapporteur Lambert Doorn), Brussels 2004, para 7.
26. Pursuant to the Protocol on the application of the principles of subsidiarity and proportionality, the Commission will take due account in its legislative proposals of their fi nancial or administrative implications, for the Union and the Member States in particular. Furthermore, each of the three Institutions will take into account the objective of ensuring that application in the Member States is appropriate and eff ective.
27. Th e three Institutions agree on the positive contribution of impact assessments in improving the quality of Community legislation, with particular regard to the scope and substance thereof.
28. Th e Commission will continue to implement the integrated advance impact-assessment process for major items of draft legislation, combining in one single evaluation the impact assessments relating inter alia to social, economic and environmental aspects. Th e results of the assessments will be made fully and freely available to the European Parliament, the Council and the general public. In the explanatory memorandum to its proposals, the Commission will indicate the manner in which the impact assessments have infl uenced them.
29. Where the co-decision procedure applies, the European Parliament and Council may, on the basis of jointly defi ned criteria and procedures, have impact assessments carried out prior to the adoption of any substantive amendment, either at fi rst reading or at the conciliation stage. As soon as possible after this Agreement is adopted, the three Institutions will carry out an assessment of their respective experiences and will consider the possibility of establishing a common methodology.
30. European Commission, European Parliament and Council of Ministers, Common Approach to Impact Assessment (2005), point 5. Th e Common Approach has not been published in the Offi cial Journal; it can be downloaded at ec.europa.eu/governance/impact/docs/key_docs/ii_common_approach_to_ia_en.pdf, 8 September 2008.
31. Anne C.M. Meuwese, 'Inter-institutionalising EU Impact Assessment' in Stephen Weatherill (ed.), Better Regulation (Hart Publishing, Oxford 2007), pp. 287-309.
32. Andrea Renda, Impact Assessment in the EU. State of the Art and Art of the State (Centre for European Policy Studies, Brussels 2005).
33. European Commission, A strategic review of Better Regulation in the European Union, COM(2006) 689.
34. This composition is entrenched in the current mandate of the IAB, see ec.europa.eu/governance/impact/docs/key_docs/iab_mandate_annex_sec_2006_1457_3.pdf, 22 August 2008.
35. European Commission, Better Regulation website, ec.europa.eu/governance/better_regulation/impact_en.htm_quality, 22 August 2008.
36. European Commission, Better Regulation website, Impact Assessment page, ec.europa.eu/governance/impact/index_en.htm, 22 August 2008.
37. Impact Assessment Board, Annual Report for the year 2007, Brussels 2008, to be downloaded at ec.europa.eu/governance/impact/key_en.htm, 22 August 2008.
38. Anne C.M. Meuwese, Impact Assessment in EU Lawmaking (Kluwer Law International, Th e Hague 2008), p. 152.
39. European Economic and Social Committee, Exploratory opinion on the request of the UK Presidency on Better lawmaking (rapporteur Retureau) OJ C 24 (Brussels 2005), para. 8.1.
40. Giandomenico Majone, Regulating Europe (Routledge, London 1996), p. 23.
41. Zayenne D. Van Heesen-Laclé and Anne C.M. Meuwese, 'Th e Legal Framework for Self-Regulation in the Netherlands' (2007) 3:2 Utrecht Law Review, pp. 116-139.
42. Philip Eijlander, 'Possibilities and Constraints in the Use of Self-Regulation and Co-Regulation in Legislative Policy, Experiences in the Netherlands - Lessons to be learned from the EU' (2005) 9:1 Electronic Journal of Comparative Law, p. 7.
43. European Parliament press release, Better regulation in the EU - MEPs adopt four reports, 4 September 2007, www.europarl.europa.eu/news/expert/infopress_page/008-9997-246-09-36-901-20070823IPR09760-03-09-2007-2007-false/default_sv.htm
44. European Commission, A Europe of results. Applying Community law, COM(2007) 502 fi nal.
45. European Commission, Better Regulation for Growth and Jobs in the European Union, COM(2005) 97, 16 March 2005 (Brussels 2005). Footnote 5 on p. 4 of this communication mistakenly claims that "'soft law' instruments refers to co-regulation and self-regulation".
46. Ernst M.H. Hirsch Ballin and Linda A.J. Senden, Co-actorship in the Development of European Law-making. Th e Quality of European Legislation and its Implementation and Application in the National Legal Order (TMC Asser Press, Th e Hague 2005), p. 31.
47. Manfred Zuleeg, 'Die Kompetenzen der Europäischen Gemeinschaften gegenüber den Mitgliedstaaten' in Gerhard Leibholz (ed.), JöR, Band 20, JCB Mohr (Paul Siebeck, Tübingen 1971), p. 7.
48. Gerda Falkner et al., Complying with Europe: EU Harmonisation and Soft Law in the Member States (Cambridge University Press, Cambridge 2005).
49. In the framework of Articles 138-139 EC regarding the European social dialogue, representativeness of the social partners even remains a problematic issue until today.
50. For instance, IA should not go against Article 174 TEC which stipulates that lawmaking in the environmental fi eld 'shall be based on the precautionary principle'.
51. Th ese elements have also been underlined at a recent public hearing about 'Th e Current State of European Self- and Co-Regulation', organised by the European Economic and Social Committee on 31 March 2008 in Brussels.
52. Caroline Cecot et al., An Evaluation of the Quality of Impact Assessment in the European Union with Lessons for the US and the EU, AEI-Brookings Joint Center Working Paper No. 07-09, December 2007.
53. Sebastian Kurpas et al., Th e European Commission after Enlargement: Does More Add Up to Less? (CEPS Special Report, February 2008
54. Impact Assessment Board, Annual Report 2007 (Brussels 2008), pp. 14-15.
55. Impact Assessment Board, Opinion on the impact assessment on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange, SEC(2007) 745, p. 3.
56. European Commission, Report on the impact assessment of proposals aiming to modernise and reinforce the organisational framework for inland waterway transport in Europe, SEC(2008) 23, 10 January 2008 (Brussels 2008).
57. Robert Baldwin, 'Is Better Regulation Smarter Regulation?' (2005) Public Law, pp. 485- 511.