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Published online by Cambridge University Press: 27 October 2017
This chapter reviews the regulatory innovation process in the European Union, with a focus on the environmental sector. It examines the EU documents on regulation and, in particular, the ‘eight pillars of European governance’ listed by the European Commission in its follow-up to the 2001 White Paper on European Governance, as a useful means of categorising the practical consequences which the European Union attaches to the different implications of the governance debate in the EU. It goes on to summarise the initiatives on regulatory innovation as kick-started by the White Paper on Governance, and to map the current state of each of these initiatives. It concludes that no fundamental reform is required, but rather only a slim number of targeted remedies; the only real solution to the regulatory fog is acceptance and deregulation.
1 Weatherill, S, ‘The challenge of better regulation’ in Weatherill, S (ed), Better regulation (Oxford, Hart Publishing, 2007) 1, 1Google Scholar.
2 Compare Magnette, P, ‘The politics of regulation in the European Union’ in Geradin, D, Muñoz, R and Petit, N (eds), Regulation through Agencies in the EU (Cheltenham, Edward Elgar, 2005) 3, 4Google Scholar. In light of this article’s focus on environmental law, the externalities route to regulation is particularly attractive.
3 Ibid.
4 Golub, J (ed), New instruments for environmental policy in the EU (London, Routledge, 1998) 2 CrossRefGoogle Scholar.
5 Ibid, 3.
6 Weale, A (ed), Environmental Governance in Europe (Oxford, Oxford University Press, 2000) 61 Google Scholar.
7 Golub, above n 4, 4 ff.
8 Deketelaere, K and Orts, E (eds), Environmental contracts—Comparative approaches to regulatory innovation in the United States and Europe (London, Kluwer Law International, 2001) 201 ffGoogle Scholar.
9 C Coglianese, ‘Is Consensus an Appropriate Basis for Regulatory Policy?’, in Deketelaere and Orts, above n 8, 97.
10 Coglianese, C et al, Performance-based regulation, JF Kennedy School of Government, Harvard University, Regulatory policy program report No RPP-03 (2002) 3 Google Scholar.
11 Compare, for pollution-focused theories, with M Munasinghe, ‘Is environmental degradation an inevitable consequence of economic growth: tunnelling through the environmental Kuznets curve’ (1999) Ecological Economics 89.
12 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ 2004 L143/56.
13 Directive 2003/87/EC establishing a scheme for greenhouse gas emissions allowance trading, OJ 2003 L275/32.
14 Weatherill, above n 1, 1, 13, referring to Kelemen’s and Menon’s contribution in the same article.
15 Author’s presentation at New Haven CT, 31 March 2004, ‘Regulatory competition and environmental innovation in the EU’, Yale Association of Environmental Law, unpublished.
16 See C Hilson, ‘Risk and Human Rights before the ECHR: Towards a new approach’, ch 12 in this volume.
18 Lee, M, EU Environmental Law (Oxford, Hart Publishing, 2005) 183 Google Scholar.
19 See, similarly, ibid, 183 ff.
20 Ibid, 184.
21 Stewart, R, ‘Economic incentives for environmental protection: Opportunities and obstacles’ in Revesz, R, Sands, P and Stewart, R (eds), Environmental law, the economy and sustainable development (Cambridge, Cambridge University Press, 2000) 174 Google Scholar.
22 According to the European Commission, ‘an interested party is an individual or group that is concerned or stands to be affected—directly or indirectly—by the outcome of a policy process; or represents the general interest of groups concerned by such an outcome, within and outside the EU’: COM(2002) 713, Communication from the Commission on the collection and use of expertise by the Commission: Principles and Guidelines, n 4.
23 Communication from the European Commission on European Governance: Better lawmaking COM(2002) 275.
24 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1999) 38 International Legal Materials 517 Google Scholar. See also the discussion of this Convention by Hilson, ch 12 in this volume.
25 The policy purposes meant are addressing climate change internally and on an international scale, promoting environmental sustainability, reducing dependence on external resources and ensuring the competitiveness of European economies, halting loss of biodiversity, preserving natural resources that are under pressure and protecting public health: Green Paper on market-based instruments for environment and related policy purposes, COM(2007) 140, 2.
26 Ibid.
27 Ibid, 14.
28 Ibid, 5.
29 Ibid, 4.
30 Communication on European Governance, above n 23.
31 Meuwese, ACM, Impact assessment in EU lawmaking (Alphen a/d Rijn, Kluwer, 2008) 19 Google Scholar, quoting Armstrong, KA, Regulation, deregulation, re-regulation (London, Kogan Page, 2000)Google Scholar.
32 Of which one could, I suspect, call the current chapter a product.
33 http://ec.europa.eu/governance/governance_eu/index_en.htm, archived since 31 July 2007.
34 Table based on the European Commission’s webpage on European Governance, available at: http://ec.europa.eu/governance/governance_eu/index_en.htm.
35 Lawrence, TE, Seven Pillars of Wisdom: A Triumph (London, Jonathan Cape, 1937)Google Scholar.
36 See, eg, Piris, J-C, ‘The quality of Community legislation: The viewpoint of the Council legal service’ in Kellermann, AE et al (eds), Improving the quality of legislation in Europe (The Hague, Kluwer, 1998) 25 ffGoogle Scholar.
37 A case in point is the REACH Regulation, the cornerstone of the EU’s new chemicals policy (Regulation 1907/2006, OJ 2006 L396/1, with a corrected (and much slimmer version) in OJ 2007 L136/3). It started out as a well-rounded proposal, from a legalistic point of view, but frankly ended up as a muddle, after the repeated interventions by Council and Parliament (which may well have been for good policy reasons—an issue beside the point for our purposes here).
38 Report of Working Group on Broadening and enriching the public debate on European matters, June 2001, no official COM or other reference, available via: http://ec.europa.eu/governance/areas/group1/report_en.pdf, 5.
39 Please note that the analysis here relates to the regulatory aspect of citizens’ involvement only: citizens’ involvement in Europe as a political project is largely a different debate.
40 See n 24 above.
41 Sec, S, ‘“Aarhus environmental rights” in Eastern Europe’ in Etty, TFM and Somsen, H (eds), (2005) 5 Yearbook of European Environmental Law 21 Google Scholar.
43 Although even business has complained of not having enough input into the regulatory process, in a 2006 Clifford Chance sample survey on (UK) Business and EU regulation, reproduced in S Weatherill (ed), above n 1, 405 ff.
44 For example, unlike in the United States, almost all EU Member States lack a tradition of philanthropy, leaving most non-governmental organisations with limited financial resources to monitor and influence EU decision-making. Both at the EU level and in quite a few Member States, this either gives NGOs limited funds and hence typically a local impact only, and/or creates dependency upon government and EU funds (the perceived dependency often leads NGOs to refusing official funds).
45 White Paper on European Governance, COM(2001) 428.
47 See, for example, John Cridland CBE, Deputy Director-General of the Confederation of British Industry (CBI), quoted by Meuwese, above n 31, 186.
48 As agencies in the EU prima facie have less direct regulatory power than those in, for example, the United States, developments such as the use of IA are less of an issue than one might expect.
49 For more details, see inter alia, Meuwese, above n 31, in particular 251 ff.
50 Bear in mind Benjamin Disraeli’s warning that ‘[t]here are three kinds of lies: lies, damned lies, and statistics’ (attributed to Disraeli by Mark Twain: see Twain, M (Neider, C (ed)), The Autobiography of Mark Twain (New York, Harper Perennial Classics, 2000))Google Scholar.
51 Baldwin, R, ‘Tensions aboard the enterprise’ in Weatherill, S (ed), Better Regulation (Oxford, Hart Publishing, 2007) 27 ffGoogle Scholar.
52 For more on risk analysis at the EU level, see Calster, G van, ‘Risk regulation, EU law and emerging technologies: Smother or smooth?’ (2008) 2 NanoEthics 61 CrossRefGoogle Scholar.
53 See: http://ec.europa.eu/governance/areas/group2/report_en.pdf, May 2001.
54 Communication from the Commission on the collection and use of expertise by the Commission: Principles and Guidelines, COM(2002) 713.
55 Risk management is the part of the risk analysis chain where one decides what the appropriate response ought to be to the scientific findings of the risk assessment stage. This may range from no action at all, via mitigating measures (such as restrictions of use), to a complete prohibition of a given substance or activity.
56 See also van Calster, n 52 above.
57 See n 45 above.
58 XA Yataganas, ‘Delegation of Regulatory Authority in the European Union: the Relevance of the American Model of Independent Agencies’ NYU Jean Monnet Papers Series, 2001/1. The list reproduced in the text here is indicative and not exhaustive.
59 Majone, G, ‘The credibility crisis of Community regulation’ (2000) 44 Journal of Common Market Studies 273, 290CrossRefGoogle Scholar.
60 Communication of 11 December 2002 on the operating framework for the European regulatory agencies, COM(2002) 718, 4.
61 Geradin, D, ‘The development of European regulatory agencies: What the EU should learn from American experience’ (2005) 12 The Columbia Journal of European Law 1 Google Scholar.
62 Communication from the Commission on the operating framework for the European regulatory agencies, COM(2002) 718, 4.
63 Ibid, 2–3.
64 The Meroni doctrine of the European Court of Justice: Joined Cases 9 and 10/56, Meroni e Co, Industrie Metallurgiche, SpA v High Authority [1958] ECR 11.
65 These two paragraphs quote from: http://ec.europa.eu/governance/governance_eu/nat_ policies_en.htm.
66 Report of working group on national policy convergence, June 2001 at: http://ec.europa.eu/governance/areas/group8/report_en.pdf, at 33–4.
67 See these and other arguments in C Sabel and J Zeitlin, ‘Active welfare, Experimental governance, and pragmatic constitutionalism: The new transformation of Europe’ (2003), unpublished paper presented at the International Conference of the Hellenic Presidency of the European Union, ‘The Modernization of the European Social Model and EU Policies and Instruments’, Ioannina, Greece, 21–22 May 2003, cited inter alia by Chalmers, D, et al, European Union Law (Cambridge, Cambridge University Press, 2006) 139 Google Scholar, and Bohman, J, ‘Constitution Making and Democratic Innovation: The European Union and Transnational Governance’ (2004) 3 European Journal of Political Theory 315 CrossRefGoogle Scholar.
68 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ 2007 C306/1.
69 For eg, Case C-304/02 Commission v France, judgment of 9 December 2008, on the common fisheries policy.
70 See, eg, Commission Secretary General, Rapport sur l’application du droit communautaire par les États membres et sur le contrôle de celle-ci par la Commission, contenant des recommandations en vue de les améliorer du point de vue de la gouvernance démocratique européenne, July 2001, available at: http://ec.europa.eu/governance/areas/studies/applicreport_fr.pdf.
71 And indeed the relevant website archived.
72 Commission Communication of 28 February 2000 on SLIM: Simplified Legislation for the Internal Market, COM(2000) 104, continued since.
73 Third Strategic Review of Better Regulation in the European Union, COM (2009) 15.
74 See also Börzel, T, States and Regions in the European Union (Cambridge, Cambridge University Press, 2002) 73 ffGoogle Scholar; Chalmers et al, above n 67, 129; McCarthy, R, ‘The Committee of the Regions: An advisory body’s tortuous path to influence’ (1997) 4 Journal of European Public Policy 439 CrossRefGoogle Scholar.
75 Report of working group, ‘Networking people for a good governance in Europe’, May 2001, available at: http://ec.europa.eu/governance/areas/group9/report_en.pdf.
76 Ibid, 3.
77 T Weil and F Durieux, ‘La gestion de l’innovation en réseau’, Rapport to ANRT, 2000, cited in Report of working group, ‘Networking people for a good governance in Europe’, above n 75.
78 Report of working group, ‘Networking people for a good governance in Europe’, above n 75, 3–4.
79 Ibid, 6 ff.
80 European Commission Green Paper, ‘Promoting a European framework for Corporate Social Responsibility’, COM(2001) 366, 6.
81 Report of the World Commission on Environment and Development, General Assembly Resolution 42/187, 11 December 1987 (United Nations 1987): see http://www.un.org/documents/ga/res/42/ares42-.
82 Sands, P, Principles of international environmental law, 1st edn (Manchester, Manchester University Press, 1995) vol 1, 198 ffGoogle Scholar.
83 Art 3 EC lists the activities which the EC shall develop in order to reach the Community’s overall objectives, which are included in Art 2 EC.
84 See thorough analysis in, eg, Dhondt, N, Integration of environmental protection into other EC policies (Groningen, Europa Law Publishing, 2003)Google Scholar and Vedder, H, Competition law and environmental protection in Europe—Towards Sustainability? (Groningen, Europa Law Publishing, 2003)Google Scholar.
85 Called 20 years after the 1992 Rio de Janeiro conference, which can rightly be seen as the cradle of a large part of current international environmental agreements.
86 See Report of the World Summit on Sustainable Development, Johannesburg, South Africa, A/CONF.199/20, available at: http://daccessdds.un.org/doc/UNDOC/GEN/N02/636/93/PDF/N0263693.pdf?OpenElement.
87 A phrase often attributed to Elkington, John: see his ‘Towards the sustainable corporation: Win-win-win business strategies for sustainable development’ (1994) 36 California Management Review 90 CrossRefGoogle Scholar.
88 The Commission has defined the triple bottom line as ‘the idea that the overall performance of a company should be measured based on its combined contribution to economic prosperity, environmental quality and social capital’: European Commission Green Paper on corporate social responsibility, above n 80, 26.
89 Initially coined by/for Shell oil.
90 See, eg, European Commission Green Paper on corporate social responsibility, above n 80, 7.
91 Akin to the ‘no regrets doctrine’ at State level: in the United States, the ‘no regrets doctrine’ was developed by the Bush (Sr) Administration—and taken up by the subsequent Clinton administration—in response to early European action to combat climate change. Bush Sr argued that, in the face of uncertainty, rather than taking precautionary action which implies an often high degree of uncertainty, the US should only advocate taking measures which it would never come to regret. This would include, for instance, energy savings measures which, if climate change were proven a fad (or uninfluenced by human behaviour) would have had the certain, cost-effective benefit of saving energy and which, if climate change were proven true and man-influenced, would have been at least a partial response to the phenomenon.
92 A Smith, An enquiry into the nature and causes of the wealth of nations (first published 1776) Book 4, ch 2.
93 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ 2007 C306/1.
95 Westlake, M, The Council of the European Union (London, Cartermill, 1995) 338 Google Scholar.
96 See, eg, Hamann, A and Fabri, H Ruiz, ‘Transnational networks and constitutionalism’ (2008) 6 International Journal of Constitutional Law (ICON) 481, 503CrossRefGoogle Scholar.
97 By which the European Parliament, as the term implies, co-decides legislation together with the Council, and hence was promoted to become a true part of the legislative branch of the European Community.
98 See n 96 above.
99 Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 2006 L200/11.
100 Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999 L184/23.
101 The regulatory procedure with scrutiny allows the legislator to oppose the adoption of draft measures where it indicates that the draft exceeds the implementing powers provided for in the basic instrument, or that the draft is incompatible with the aim or the content of that instrument or fails to respect the principles of subsidiarity or proportionality. See, eg, Schusterschitz, G and Kotz, S, ‘The comitology reform of 2006: increasing the powers of the European Parliament without changing the treaties’ (2007) 3(1) European Community Law Review 68 Google Scholar.
102 Jacobs, FG, ‘The quality of Community legislation—What is to be done?’ in Kellermann, AE et al (eds), Improving the quality of legislation in Europe (The Hague, Kluwer, 1998) 13, 14Google Scholar.
103 Ibid.
104 See Commission Memo 05/10, of 13 January 2005, available via RAPID.
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