The overall concept of smart regulation is defined by the European Commission in a Stakeholder Consultation on Smart Regulation, issued in April 2010 as follows: ‘Smart regulation is not about more or less legislation, it is about delivering results in the least burdensome way’. It may be argued that smart regulation finds some of its origins in the principle of proportionality as enshrined in Article 5(4) TEU: ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’.
In its October 2010 Communication on Smart Regulation in the European Union, which followed on from the April 2010 consultation, the Commission defined smart regulation further as having three main characteristics:
- it concerns the whole policy cycle - from the design of a piece of legislation, to implementation, enforcement, evaluation and revision;
- it must be a shared responsibility of the European institutions and of Member States; and
- the views of those most affected by regulation have a key role to play in smart regulation.
The Commission’s October 2010 Communication states further that the aim of smart regulation is to design and deliver regulation that respects the principles of subsidiarity and proportionality and is of the highest quality possible, and this must be done throughout the policy cycle, from when a piece of legislation is designed to when it is revised.
A key part of ensuring that EU regulation is smart regulation is reducing the administrative burden and simplifying existing regulation. The Commission is implementing this through a simplification programme that has brought substantial benefits to citizens and businesses. Further, the Commission’s action programme for reducing administrative burdens is, according to the Commission, likely to exceed its target of cutting red tape by 25% by 2012. The Commission is also extending the mandate of the High Level Group of Independent Stakeholders until the end of 2012 in order to enable it to give advice on issues relating to reducing the administrative burden for business and simplifying legislation.
The Commission is also evaluating the costs and benefits of existing legislation, by means such as ex post evaluations and more comprehensive policy evaluations and ‘fitness checks’. A total of four such fitness checks were launched in 2010, including in areas of employment and social policy (e.g. information and consultation of workers). Other key policy quality areas include checking that new legislation is the best possible, improving the implementation of existing legislation, and making legislation clearer and more accessible.
In terms of sharing responsibility, the Commission states that the European Parliament and Council have a key role to play in delivering smart regulation, for example, in undertaking impact assessments on substantive amendments they make to Commission proposals. However, the implementation of smart regulation objectives also requires the input of the Member States, particularly in the implementation of legislation. The Commission notes that there is ‘no one size fits all’ approach to smart regulation, and encourages Member States to define priorities on the basis of available human and institutional capacities.
Finally, the Commission notes that consulting citizens and other stakeholders both when developing policies and when evaluating whether they have done what they set out to do is an essential element of smart regulation. It proposes to increase the public consultation period on proposed legislation from eight to 12 weeks from 2012, and to work to improve the quality of the public consultation process.