Part 1 on the Need to Reform EU Regulations

French version

2024 is a year of elections and likely a year of political change. Normally the focus in Brussels should be on the European Parliament elections in early June, but given the way the polls are shaping up, there will likely be an unworkable chaos handcuffing the next European Parliament. As demonstrated over the last five years, the European Commission has largely been able to ignore the Parliament and the Council (and the European public) to pursue their own agenda so our focus should be on who is pulling the strings in the Berlaymont.

After the European Parliament elections, a new European Commission President and Cabinet of Commissioners will be nominated. Member State Commissioner nominees had usually been more a matter of internal political opportunism, with DG director generals and the European Council being the ones providing competent leadership in Brussels.

But this last Commission cabinet has been dominated by several strong European personalities aiming to use their five-year term to further their own ambitions and legacies. As a consequence, a number of important events during the last term (two major wars, a pandemic, global trade tensions, several refugee influxes, economic and financial crises…) were downplayed in favour of the European Commission’s single-minded obsession with pursuing its Green Deal.

• On 27 February 2020, when COVID-19 was claiming hundreds of lives and northern Italy was locking cities down and requesting aid, Commission President, Ursula von der Leyen, gave a speech at an African Union meeting where she did not once mention the emerging coronavirus, preferring to emphasise the need to fight climate change.
• Following the Russian invasion of Ukraine, Commission Vice-President, Frans Timmermans, griped that agriculture lobbyists were using the food production crisis to try to overturn some of the Farm2Fork restrictions (he held firm and even called for a wider adoption of agroecology practices).
• The €2 trillion post-COVID Recovery Plan for Europe was linked to Green Deal, environment-related projects.

Throughout this Commission we have seen European obfuscation and stubborn avoidance of any issue that did not contribute to their green legacy objectives.

“Weak Leadership By Design”

With this uncompromising, obsessive climate policy focus, Europe lost a chance, in a global leadership vacuum, to lead in a world now in perpetual crisis. History will look at this as a significant failure in governance. In the late stages of this Commission mandate, Vice-President Frans Timmermans left his post managing the Green Deal for an attempt to become Dutch Prime Minister. Only then was the European Commission able to engage with other stakeholders and focus on economic issues while scaling back some of their stifling green dogma disguised as policy. It is expected that European voters, fed up with this lack of balanced, competent governance, will reject the left and green candidates in the upcoming elections.

How did this happen and how could the next European Commission avoid such a political failure from happening again?
Is there any way, in future, to prevent several Commissioners, focused on their own legacies, from hijacking EU policy on single-issue policy drives?

Since Jacques Delors’ combative relationship with Margaret Thatcher, an endearing virtue of Commission presidents has been their librarian-like weakness, attracting the nomination of consensus wonks into the top post rather than inspirational visionaries. This weak-leadership-by-design strategy allows European Member State leaders to more easily influence and manipulate the shadows running Brussels. Ursula von der Leyen was so weak, though, that she could also be easily dominated by her own Commissioners. Should she be re-elected? Of course not. Will she be? That’s highly likely.

So the next Commission will be built along the lines of a leadership vacuum at the top and increased pressure from ambitious Commissioners from below. With an expected extremist influence in the European Parliament, this is literally a nightmare scenario (as Hungary takes over the EU Council chair). Taking this as the baseline, what can we expect from the next European Commission? Europe is broken and rather than five more years of ineptitude, there needs to be some means to reform the process, to ensure effective governance and provide value and service to European citizens.

Here is my wish list for the next European Commission.

My European Commission Wish List

There is a need to have tools in place that better monitor and control European policies when it becomes obvious that the results will work against the interests of large parts of European populations, economic and food security and international trade and investment.

• Europe has a number of strong agencies capable of providing expert advice based on sound evidence. Pity their recommendations are often ignored in the policy process. There must be a means for policymakers to be scrutinised when they base decisions on political interests rather than evidence.
• The stakeholder dialogue process is dead. The European Commission has strict rules forbidding its staff from meeting industry representatives but not for meetings with actors from NGOs and other civil society organisations. This has created an imbalance in policy influence that must be addressed. European policy needs to fairly consider the interests of all stakeholders.
• NGOs are awash with cash from foundations, dark donor-advised funds, private billionaire donations and special interest groups. They no longer need to receive European taxpayer money and the excess funds are creating a situation where groups are using them to create pointless campaigns. Dedicated Commission NGO funding schemes within the Life or EU4Health programmes should be shut down.
• No one in Brussels seriously believes European decision-making structures (especially the qualified majority voting ritual) is in a state to support any enlargement that Brussels is starting to talk about. There needs to be another root and branch analysis of how Europe can be better governed (ie, another White Paper on Governance).
• It became clear during the pandemic that European policymakers, for years just ritually applying the precautionary principle to avoid hard decisions, had lost the capacity to manage risks. As governance pertains to a variety of risk management situations, this White Paper should extend its focus on the entire risk management process.

My wish list is essentially based on the need to reform the regulatory process – what used to be called “better regulation”. But whatever happened to better regulation?

Is Better Regulation Dead?

Ten years ago, better regulation was launched as the “grand project” for the Juncker Commission. But the job was only half done and poorly implemented. It is hard to find anybody in Brussels who still has much faith in the process today. In his latest book, European Lobbyists, Daniel Guéguen provided an important analysis of the shortcomings in his chapter entitled: The “Better Regulation” package, so badly named… (See the full chapter here, reprinted with permission.) Guéguen examines the shortcomings of the original attempt to reform the governance process and serves as a good starting point for this analysis.

Guéguen defines the purpose of better regulation as:

… to ensure that EU action is effective, transparent and integrated at all stages of the policy cycle – from conception to implementation and possible revision – and to ensure that EU law does not impose unnecessary red tape and formalities on stakeholders.

The reforms were expected to improve contact between the EU institutions, with impact assessments relying on best evidence, open stakeholder consultations, the gathering of the best expertise, transparency in the trilateral negotiations and the simplification and burden reduction of regulations. But Guéguen argues that these reforms failed to be effective in practice: the Regulatory Scrutiny Board was not independent, negotiations were not transparent, expert groups had no power and the simplification approach, via REFIT, became overly ‘complexified’.

Worse, against the spirit of reform, the Commission’s calls for evidence, consultations and preliminary impact assessments have become largely predetermined, with the independent consultancies charged with the assessments having their objectives framed in advance by the Commission with no need to integrate any stakeholder contributions during the process.

So while the European Commission held firm to its claims of implementing better regulation reforms, in practice they had left much to be desired. For example, there were no impact assessments for many of the Green Deal strategies (Farm2Fork, Fit for 55, phaseout of ICE vehicles…) as they were redefined as a package rather than regulations. And when the European Commission’s own JRC performed an assessment criticising the Farm2Fork strategy, the Commissioners simply ignored it. When impact assessments are submitted to the Regulatory Scrutiny Board (RSB), there is a high rate of rejection (ie, requiring revisions), but this is all done prior to publication and without public (expert) consultation.

I agree with Guéguen that impact assessments should be published apart from draft legislations and well in advance for expert dialogue. They should be subject to legitimate, open consultation and debate rather than being micromanaged in a non-transparent manner. This should then be fed back into the draft legislation. At the moment, there is little trust in the process and a general feeling that any engagement in the assessment process is futile.

Guéguen feels that the European Commission should internalise the impact assessment process rather than engaging external consultants who inevitably work with NGO activists. Bodies like the Joint Research Centre (JRC) have a depth of expertise and could guarantee a rigorous methodology. Whoever performs the assessments, I feel there needs to be a more serious stakeholder consultation (not an open questionnaire process with guided questions where the results are easily considered as divided and hence ignored), perhaps with a board of experts from different interest groups whose inputs can also be considered by the RSB. (NB: Daniel and I have had this collegial disagreement before on the quality and trust of scientific advice internal to the European institutions.)

Guéguen shows very well how the reform of the European governance process itself needs to be reformed. Clearly it would be impossible to get all Member States to unanimously vote through any changes at the treaty level, but there needs to be a reassessment at the implementation stage. First, there needs to be a White Paper to establish a proper guidance document for assuring competent regulatory processes.

But the term: “Better Regulation” has been denigrated and abused by opportunists within the Commission (as seen with this Commission’s ill-fated Green Deal farce). As the key responsibility of policymakers is to serve as risk managers, the most important governance reform objective for the upcoming European Commission should be to develop a White Paper on Risk Management.

It is to an outline of this proposal that Part 2 of this analysis now turns.

Postscript: Some wishes can come true

An observant reader recently wrote me to share how the word “precaution” has not been used lately in any European Commission communications. He was suggesting that this is a conscious effort on their part to avoid a term that has become rather contentious and, well, disparaged.

While I’d like to think this was merely a case of common sense coming back through the front door (as characters like Frans Timmermans fled via a side window), it is worth watching to see if we are entering into a post-precaution Brussels. Has the European Commission started to mature and are they ready to return to responsible governance principles?

This is one further reason to focus on establishing clear guidelines for risk management and within that, codify the correct use of the precautionary principle.