We turn to the Smart Regulation Communication from the Commission, available on the Better regulation pages (but not on Eur-Lex):
Smart Regulation in the European Union; Brussels, 8.10.2010 COM(2010) 543 final (11 pages)
The Communication is available in German “Intelligente Regulierung” and in French “Une réglementation intelligente”.
The introduction discusses the lack of regulation as a cause for the financial, economic and sovereign debt crises, newish policy objectives, such as financial stability and climate change, as well as the costs of a fragmented single market. On the other hand, it duly remembers the importance of businesses, especially small and medium-sized enterprises (SMEs) for the smart, sustainable and inclusive growth envisioned by the Europe 2020 strategy, so the regulatory burden has to be limited to what is strictly necessary.
No wonder that Commission president José Manuel Barroso has taken upon himself to lead the European Union from the Egypt of better regulation to the Promised Land of smart regulation.
The key messages are (page 3):
First, smart regulation is about the whole policy cycle - from the design of a piece of legislation, to implementation, enforcement, evaluation and revision. We must build on the strengths of the impact assessment system for new legislation. But we must match this investment with similar efforts to manage and implement the body of existing legislation to ensure that it delivers the intended benefits. This requires a greater awareness by all actors of the fact that implementing existing legislation properly and amending it in the light of experience is as important as the new legislation we put on the table.
Second, smart regulation must remain a shared responsibility of the European institutions and of Member States. These actors have made varied progress, and the Commission will continue to work with them to ensure that the agenda is actively pursued by all. This must be accompanied by a greater recognition that smart regulation is not an end in itself. It must be an integral part of our collective efforts in all policy areas.
Third, the views of those most affected by regulation have a key role to play in smart regulation. The Commission has made great strides in opening its policy making to stakeholders. This can also be taken a step further and the Commission will lengthen the period for its consultations, and carry out a review of its consultation processes to see how to strengthen the voice of citizens and stakeholders further. This will help to put into practice the provisions of the Lisbon Treaty on participatory democracy.
Here are some remarks on the first key message, which concerns mainly EU level action.
Evaluating existing legislation
One of the points in the first key message was the emphasis on evaluating the costs and benefits of existing EU legislation. Initial steps have been taken with regard to public procurement, professional qualifications and working conditions, but this approach has to become an integral part of smart regulation. Especially the member states have untapped opportunities to simplify legislation and to reduce regulatory burdens (page 4).
The Commission promises more comprehensive evaluations of whole policy areas, so called fitness checks, as opposed to individual legal acts (page 4-5).
“Fitness checks” have been launched in 2010 for areas in environment, transport, employment/social policy and industrial policy. This will be extended to other policy areas in 2011 on the basis of these experiences (page 5).
The Commission underlines the importance of impact assessments and the work done by the Impact Assessment Board (IAB), and it refers to the evaluation made by the European Court of Auditors (ECA).
The Commission rejects an outside body to control impact assessments as an infringement of its prerogatives, but it promises to improve consultation processes.
After guidance on social impacts, the Commission intends to improve the assessment of impacts on fundamental rights.
The Commission admits that impact assessments should quantify costs and benefits, but it refers to the difficulties in quantifying national implementation measures (pages 6-7).
The sections on shared responsibilities between EU institutions and the opportunities for national authorities are worth reading. The Commission is going to extend the consultation period for proposals to twelve weeks, in order to give stakeholders and citizens more time to react. A progress report on the smart regulation agenda is promised during the second half of 2012.
Marketplace of ideas
My impression is that the ‘smart regulation’ agenda builds on good experiences, and it envisions sensible improvements.
However, there still seems to be too little quality discussion in public between the EU and national levels and various stakeholders, both business and wider societal interests. The Commission’s promise to improve consultations is a step in the right direction, but the other players need to open up as well and be less reliant on quiet lobbying.
In part they already communicate actively online, but mainly unidirectionally on their own websites. Perhaps the interest groups (stakeholders) should become more engaged in the public marketplace of ideas, participating in online discussions through social media.
It is increasingly hard to find European enterprises, public authorities or interest groups outside the public marketplace of ideas, without an active social media presence. Few of them are untouched by politics and policies at European Union level.
Politics, policies, economics and law at EU level are becoming more important in a globalising world, at least if Europeans still want to weigh in, instead of member states being picked off like clay pigeons.
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