Better regulation: speed should not become a substitute for transparency

On February 4, the European Commission concluded its consultation with the European public on the Better Regulation framework, asking for input on how the framework could be improved. 

Among the 286 responses, a large majority of respondents, representing different sectors (industry, consumer and public sector representatives, as well as self-declared transparency advocates) asked that the existing consultative mechanisms and impact assessments not be weakened. This is an important message from the European public, since one of the political goals of updating the Better Regulation framework is to ensure that decisions can be adopted more speedily.

The respondents’ suggestions on how to approach the problems differed: while some proposed concrete solutions to ensure active and focused stakeholder engagement, others used the consultation as an opportunity to criticise the Commission for its Omnibus approach.

How many exemptions have been requested since 2021? 

In our mother organisation’s, Consumer Choice Center Europe (CCCE), response, we suggested that the Commission take bold action to ensure that the option to request an exemption from the Better Regulation framework is not overused in the future, by disclosing the number of exemptions requested from Better Regulation steps since 2021, since nothing motivates Europeans more than fact-based evidence. 

Currently, the Better Regulation guidelines list a dedicated mailbox that can be used to request an exemption from guidelines due to “a political imperative to move ahead quickly", emergencies, "a need to meet specific deadlines", or due to security-related reasons.

Security and confidentiality arguments aside, citing political imperatives or approaching deadlines as justifications for not following the Better Regulation principles and guidelines has fostered a culture of loophole-seeking, since almost any initiative could be framed as a political force majeure.

A “level-playing field” in public consultations methodology? 

Another issue that has been criticised before is the negative practice of structuring public consultations’ questions in a largely one-sided way, giving respondents unequal opportunities to explain their thinking about incoming legislation. 

As an example, a public consultation on the Digital Fairness Act provided many questions and answer possibilities for those who had agreed that new rules are needed, whereas those who were against it were left with minimal options to explain themselves. 

To change that, the European Commission should apply more rigorous standards to the methodological design of public consultations, making sure that all sides have a chance to provide detailed responses reflecting their positions. 

Critics would say that the public consultations are already built on previous fitness checks and consultations (therefore, critics’ opinions are not as important in the final steps). However, these fitness checks and related consultations are also often structured in a way that sometimes imitates the dialogue, instead of being exercises that pool different ideas and reflect them afterwards in a just way. 

Statistical feedback without having to wait for 2 months 

We have also suggested that the statistical summaries on the "Have Your Say" portal should be expanded to include not only basic statistics such as respondents’ country of origin, type of organisation, but also general information on whether respondents are in favor, against, or neutral toward the Commission’s proposals. 

In the age of AI, this is a relatively simple tool to apply, which can later be filtered down to specific organisations and their proposals. This way, both policy makers and stakeholders can be aware of the general sentiment without having to wait 2 months for the Commission’s summaries, which can also be framed in a subjective way. 

Shorter synopses with clear, readable breakdowns of the most common arguments

Section 5.3.1 of the Better Regulation Guidelines (“Synopsis of consultation results”) states that stakeholders should be informed about how, and to what extent, their input has been taken into account, and why certain suggestions have not been considered. 

In our view, it’s high time that the European Commission ensured that every participant in both public consultations and Calls for Evidence receives the synopsis report by email, linked to their Commission portal account. 

It’s true that it is impossible for the Commission to comment on every proposal, because some proposals tend to be largely off-topic, however, at least a general synopsis - with a breakdown of the most common arguments and the Commission’s clear responses - should be delivered seamlessly. Ideally, the Commission should also work on making these synopses more readable and shorter.

More transparency for all consultation activities

Lastly, to ensure full transparency, the Commission should not only publish factual summaries of consultations that take place on the “Have Your Say” portal, but also publish factual summaries of every consultation activity that goes beyond that (minutes of stakeholder meetings, summaries of targeted consultations, and more). 

Currently, the Better Regulation guidelines state that a factual summary must be published within eight weeks of the public consultation, and further note that “it is also a good practice to publish on the consultation website a short factual summary of the key issues raised in each of the targeted consultation activities envisaged in the consultation strategy (e.g. an informal report, minutes of a stakeholder meeting, and/or a list or table of contributions)”. 

In our view, this should become a basic, imperative principle, not a “good practice”, otherwise, the decisions can be made behind closed doors, with little to no access to the general public, further fueling distrust in the EU and EU's institutions.