1. Hard questions and equally hard solutions
Hard questions and equally hard solutions? Proceduralization through impact assessment in the European Union
Claudio Radaelli, University of Exeter
Anne Meuwese, University of Antwerp
ECPR Conference Utrecht 5-7 June 2008

2. ECPR Conference Utrecht 5-7 June 2008
Better regulation
Old or new?
Reflexive phase of the regulatory state in Europe - Metaregulation
Target is the life-cycle of regulations
Based on procedures (rules and standards to be used in the formulation and implementation of regulation)
Pivotal role played by impact assessment (IA)
ECPR Conference Utrecht 5-7 June 2008

3. ECPR Conference Utrecht 5-7 June 2008
The rise of BR in Europe
Debates on the quality of law-making and competitiveness in Europe
The textbook case for IA
The official presentation of BR= win-win solution
BR action plan (2002) and inter-institutional agreement between COM, EP, Council (2003)
IA guidelines (2002, 2005, 2008)
2007 European Council decision on burdens
ECPR Conference Utrecht 5-7 June 2008

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Theorising IA
The political issue at stake in the EU better regulation saga is the control of the Commission
Control of the bureaucracy is exactly the explanation of IA given by delegation theory
We adopt positive political economy as our starting point, but as the paper progresses we end up in more “Lindblom-partisan mutual adjustment – learning” territory
This is because we add to the static theory of delegation the consideration of how the agent interacts with the principal once delegation has taken place and IA has been adopted
ECPR Conference Utrecht 5-7 June 2008

5. Theoretical contribution
Explaining the rise of procedures and regulation within government amidst calls for the “smart”, “lean”, “simplified” regulatory state
Introducing evolutionary aspects in principal-agent models: institutional choice is the beginning of the game, not the end
ECPR Conference Utrecht 5-7 June 2008

6. Controlling the bureaucracy: what this means to different institutions
The MS perspective
The preferences of the EP
Entering pressure groups
How the Commission refracts the politics of IA. Agenda-setting power = Commission writes guidelines
ECPR Conference Utrecht 5-7 June 2008

7. The hard questions behind BR
Institutional power: who is in charge of the EU law-making process?
Inter-organizational control
How to promote competitiveness in a EU without having shared economic policy paradigms
ECPR Conference Utrecht 5-7 June 2008

8. Research questions in our paper
Why have the EU institutions adopted IA?
What are the consequences of IA adoption?
ECPR Conference Utrecht 5-7 June 2008

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Core argument
Since the hard questions are too hot to handle, EU actors continue to disagree by agreeing on procedural solutions
Dehousse on OMC: if there is disagreement on substantive questions, EU actors go for procedures
Proceduralisation creates a new opportunity structure, and we look at how actors react to the new set of opportunities
We end up with the presentation of different scenarios
ECPR Conference Utrecht 5-7 June 2008

10. ECPR Conference Utrecht 5-7 June 2008
The choice for IA
Increases proceduralisation in the EU
Opens up the possibility to talk about “whether IA should reflect one model of governance of another”, “design of the IA procedure and its interplay with the treaty right to initiative legislation” and “official decisions on guidelines for IA”
ECPR Conference Utrecht 5-7 June 2008

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What happens next?
The hard questions do not disappear
Questions re-surface, and harden the IA solution
IA thus becomes the new opportunity structure on which EU actors face yet again the three hard questions
The new structure is based on procedures that affect the formulation of new legislative and non-legislative proposals made by the Commission. As such it has potential for constitutional change
Hard questions are re-elaborated by actors under new conditions. The outcome can be different from the past
ECPR Conference Utrecht 5-7 June 2008

12. Evolution: three possible outcomes
Loss of IA legitimacy due to open conflict. No-one believes in the “numbers” and the economics behind IA
Degeneration of IA into tick-the-box routines
Un-intended learning: actors find that the new procedure-based rules of the games enable them to explore new ways to cope with the hard questions
ECPR Conference Utrecht 5-7 June 2008

13. Exploring un-intended learning
Capacity for policy formulation is increasing
Synoptic overview of proposals: the natural tendency of each DG to take apart and dissect what the other DGs propose can generate useful partisan mutual adjustment
More analytical control on policy formulation via Sec Gen and IAB
ECPR Conference Utrecht 5-7 June 2008

14. Normative analysis - Scope conditions for un-intended learning
Avoid the illusion of ‘plug and play’ IA. By contrast, the long-term purpose of IA has to be addressed, including its constitutional implications
Creating incentives (new professionals for example) and new capacity for analysis (but stay clear of paralysis by analysis)
Abandon rational-synoptic theories in IA guidelines
ECPR Conference Utrecht 5-7 June 2008

15. ECPR Conference Utrecht 5-7 June 2008
Conclusions
Due to its rationalistic appeal, IA creates incentives for head in the sand responses to the hard questions
Procedures do not solve hard questions, but present a new opportunity structure in which hard questions are re-processed
Learning can be achieved but only at the cost of hardening the IA solution
More research on samples of IAs is needed, and more comparison between the IA-type of proceduralization and others (OMC for example)
ECPR Conference Utrecht 5-7 June 2008

16. ECPR Conference Utrecht 5-7 June 2008
Thanks
Looking forward to your comments today
Comments to
C. Radaelli acknowledges the support of the Economic and Social Research Council, grant on ‘Regulatory impact assessment in comparative perspective’
ECPR Conference Utrecht 5-7 June 2008