The judicial enforcement of the better regulation requirements in the EU

According to the European Commission’s Better Regulation Guidelines: “Better regulation is […] a way of working to ensure that political decisions are prepared in an open, transparent manner, informed by the best available evidence and backed by the comprehensive involvement of stakeholders.” In other words, better regulation as a process has two essential aspects: a participatory and a rationality aspect.
This paper aims to examine the enforceability of the requirements stemming from the Better Regulation Agenda. Firstly, the study will focus on the identification of legally enforceable standards. Secondly, it will analyze in what way and who can actually enforce these standards in practice by discussing issues related to judicial competence, justiciability and standing. The following two important components of the Better Regulation Agenda will constitute the core of the analysis: impact assessments and public consultations.

The role of experts in political decision-making: enabling, constraining, accountable?

Expertise provides a key input to political decision-making. Its role is all the more relevant as legislation and regulation increasingly extend to areas characterised by high technical complexity. The interaction between technical and democratic sources of legitimacy is however not always uncontroversial, e.g. in cases of scientific uncertainty.
Starting from a comparative analysis of institutional arrangements in place at European and national level, the paper seeks to clarify three main points: what counts as regulatory expertise (i.e. what credentials should experts have to count as such in a given institutional context); what functions does it perform with regard to political decision-making; how can it be held to account, in ways that reflect its peculiarities. It argues that expertise can both enable and constrain the exercise of political discretion, resulting in a mixed epistemic and political authority, and explores possible avenues for legal and political accountability.

The future of lawmaking: Representative democracy in danger?

In an ever more complex world, lawmaking increasingly depends on expert information. At the same time, more citizen participation in the lawmaking process (e.g. through crowd-sourcing) is discussed. More participation and more expert information can strengthen representative democracy. Yet they can also be a challenge to the publicity of the parliamentary process. I will focus on public participation. Forms of participation in the law-making process in Austria illustrate the publicity problem. Against this background, I will take up the field of legislation on the environment more generally and discuss, whether the participation the Aarhus Convention calls for with regard to plans, programs and administrative regulations, should be extended to the lawmaking arena and which challenges might arise out of such a transfer.

Ex-post evaluation, knowledge, and participation in new and backsliding democracies

The literature in legisprudence and several reports studying national legislative and regulatory environments have expressed the need to link ex-ante assessment to ex-post evaluation of legislation. It is a technique that not only ensures that the legislative cycle is indeed viewed as a cycle, but it guarantees more quality in the legislative process. It provides for inclusiveness and a wide pool of information on the effectiveness and efficiency of and compliance with a particular piece of legislation. Judicial review is also required to ensure that lawmakers have both substantial and procedural quality in mind while they draft, discuss, or modify a law.
This paper asks the question if these above considerations, which have mostly been based on more advanced countries, meet the reality in some new and backsliding democracies in Central Eastern Europe and the Balkan region. The answer is most probably negative; the paper intends to discuss the reasons.