European Union
Mandelkern Group on Better Regulation [2001]



At the Lisbon European Council, the EU set itself the goal of becoming the most competitive and dynamic knowledge-based economy in the world.
Regulation is essential to achieve the aims of public policy in many areas, and better regulation is not about unthinking removal of such regulation. Rather, it is about ensuring that regulation is only used when appropriate, and about ensuring that the regulation that is used is high quality. Improving the quality of regulation is a public good in itself, enhancing the credibility of the governance process and contributing to the welfare of citizens, business and other stakeholders alike. High quality regulation prevents the imposition of the unnecessary burdens on businesses, citizens and public administrations that cost them time and money.
Implementation of such regulation is also less problematic for public administrations and compliance is easier for citizens.
This Report proposes an Action Plan with deadlines, the implementation of which would contribute significantly to achieving the required improvements. It describes a comprehensive overall approach with a set of seven core principles: necessity, proportionality, subsidiarity, transparency, accountability, accessibility and simplicity. It recommends practices in topics applicable to both national governments and the European Commission. It also makes recommendations to the Institutions of the EU in those areas and in the area of implementation of European law.

The seven key areas that result are:

Policy implementation options. EU and national policymakers should always consider the full range of possible options for solving public policy issues and choose the most appropriate for the circumstances: though regulation is often the most appropriate option it should not be automatically the only choice in all circumstances.

Impact assessment. Regulatory impact assessment (RIA) is an effective tool for modern, evidence-based policy making, providing a structured framework for handling policy problems. RIA should be an integral part of the policy making process at EU and national levels and not a bureaucratic add-on. It does not replace the political decision: rather it allows that decision to be taken with clear knowledge of the evidence.

Consultation. Consultation is a means of open governance, and as such early and effective consultation of interested parties by EU and national policymakers is an important requirement. This does not usurp the role of civil servants, Ministers or Parliamentarians in the policymaking process but supplements the information they have to hand. Correctly done, consultation can avoid delays in policy development due to late-breaking controversy and need not unduly hinder progress.

Simplification. There is a constant need to update and simplify existing regulations. But simplification does not mean deregulation. It is aimed at preserving the existence of rules while making them more effective, less burdensome, and easier to understand and to comply with. This entails a systematic, preferably rolling and targeted programme of simplification, covering the regulation that impacts on citizens, business and the public bodies that have to implement it. Such programmes need to be established at both EU and national levels.

Access to regulation. Those affected by European or national regulation have the right to be able to access it and understand it. This means the coherence and clarity of regulations must be enhanced through consolidation (including codification and recasting) and access improved by better practical arrangements (especially using ICT). The former should be achieved through EU and national level programmes of consolidation and the latter through provision within each Member State and at European Union level of a public access service (either free or for a small fee).

Structures. Better regulation needs the appropriate supporting structures charged with its promotion to be successful. The best arrangement at EU or national level will depend on the relevant circumstances and charging a single unit at or near the centre with this should certainly be considered, but an effective solution must be found for each.

Implementation of European regulation. High quality regulation forms a chain from the earliest stages of its preparation through to its implementation. More attention should be paid at European level to implementation concerns to ensure that the full consequences are understood and considered. Member States should accord implementation of European regulation higher priority.

3 Common Principles

3.1 Necessity

This principle demands that, before putting a new policy into effect, the public authorities assess whether or not it is necessary to introduce new regulations in order to do this. This would for example involve comparing the relative effectiveness and legitimacy of several instruments of public action (regulation, but also the provision of information for users, financial incentives and contracts between public authorities and economic and social partners) in the light of the aims they wish to achieve.

3.2 Proportionality

Any regulation must strike a balance between the advantages that it provides and the constraints it imposes. The various instruments of regulation (primary and secondary regulation, framework Directives, co-regulation etc.) enable the public authorities to take action in different ways, depending on the aims they wish to achieve. It is the responsibility of the Member States and the Commission, when selecting from the regulatory instruments available to them, to identify those which are most proportionate to the aims they wish to achieve.

3.3 Subsidiarity

In the context of the EU and of its Treaties, the principle of subsidiarity is intended to ensure that decisions are taken at a level as close as possible to the citizen, whilst checking that any action to be undertaken at European level is justified compared with the options available at national level. That is, in concrete terms, checking that the objectives of the proposed action cannot be sufficiently achieved by Member States’ action in the framework of their national constitutional system and that they can therefore be better achieved by action on the part of the European Union.

3.4 Transparency

In order to improve the quality of regulation by being more effective in identifying unforeseen effects and taking the points of view of the parties directly concerned into consideration, the drafting of legislation should not be confined within the narrow bounds of the public administration bodies. Participation by and consultation with all parties who are interested or involved prior to the drafting stage is the first requirement of the principle of transparency. This participation should itself satisfy the transparency criteria. It should be organised in such a way as to facilitate broadly based and equitable access to the consultations, the constituent elements of which should be made public.

3.5 Accountability

The authorities responsible for regulation should give consideration to the question of its applicability. All parties involved should be able to clearly identify the authorities that originated the policies and the regulation applying to them. Where appropriate, they should be able to inform them of difficulties with the implementation of policies or regulation, so that they can be amended.

3.6 Accessibility

Consistent, comprehensible regulation, which is accessible to those to whom it is addressed, is essential if it is to be implemented properly. Consideration should be given to accessibility with every piece of regulation, but this should also be done as a general principle so that users are provided with a consistent body of regulations. The principle of accessibility may demand a particular effort of communication on the part of the public authorities involved, for example targeted at those persons who, because of their situation, have difficulty in asserting their rights.

3.7 Simplicity

The aim should be to make any regulation simple to use and to understand, as this is an essential prerequisite if citizens are to make effective use of the rights granted to them – regulation should be as detailed as necessary and as simple as possible. Simplicity in regulation is also a major source of savings both for enterprises and the intermediary agencies to which it applies and for the public administrations themselves. The principle of simplicity demands active efforts to combat excessive detail from the very start of the regulation drafting process and when existing texts are revised.