The Policymaker’s Perspective on Administrative and Regulatory Reform in Europe

4 Colum. J. Eur. L. 613 (1998)

J. David Enriquez. Juris Doctor candidate, Columbia Law School; Special Issue Editor, The Columbia Journal of European Law. Before law school he was an Administrator at the Organisation for Economic Cooperation and Development from 1994 to 1996, where he was responsible for a project on administrative costs on businesses.

Any distinction between “administrative reform” and “regulatory reform” is usually blurred or vague. “Regulatory reform” has often been broadly defined to encompass both substantive and procedural reform. Indeed, the Organization for Economic Cooperation and Development has defined “regulation” as “the instruments by which governments place requirements on enterprises, citizens, and government itself, including laws, orders and other rules issued by all levels of government and by bodies to which governments have delegated regulatory powers.” The United Kingdom’s Better Regulation Task Force defines regulation widely as any government measure or intervention which controls the behavior of individuals or groups. On a substantive level, regulatory reform efforts aimed at simplifying tax systems, opening telecommunications markets to competition and reducing trade and investment barriers represent some of the recent issues facing Europe. Yet, at the same time, a different type of reform taking place at the procedural level may be more aptly described as “administrative reform.” In this respect, it is possible to distinguish regulatory and administrative reform efforts as, respectively, those aimed at changes in substantive standards versus those aimed at altering procedural norms.Administrative reform in Europe has taken on an increased level of importance because “[riegulations large and small, highly visible or invisible are one of the main ways in which citizens, businesses and other groups come into contact with their Government.”‘3 The private business sector has long recognized that regulations directly affect a company’s cost levels, flexibility, capital expenditure and use of management time as well as the business climate and entrepreneurial activity in a given economy. Indeed, in 1995 when the issues of legislative simplification had become a growing priority for the European Commission, the Union of Industrial and Employers’ Confederations in Europe (UNICE), representing many of Europe’s large businesses, issued a report that recommended: (1) a targeted reform of the existing framework; (2) a change in the process by which governments intervene in the activities of companies; and (3) a change in the attitudes of society and government in the use of regulation. From the private citizens’ perspective, legislative simplification is also valuable. On an individual level, citizens would benefit from less complicated government forms and a more responsive public administration. More generally, society as a whole would benefit from a system that subjects proposed legislation to cost-benefit and environmental impact analyses.

In contrast to many substantive regulatory reforms such as tax reform or economic liberalization, which often reallocate social wealth and create clear winners and losers, the administrative and legislative reforms discussed in the following three articles have been less controversial and have generally received wide support across the political spectrum. This should not be surprising since it is difficult to imagine a constituency that would advocate poorly drafted legislation and a less responsive public administration. The following articles discuss administrative reform efforts and challenges at the European Union level, as well as in the Member States of Finland and Germany.

Giuseppe Ciavarini Azzi, Director in the European Commission’s Secretariat General, provides insight into the current status of administrative and legislative reform in his article “Better Lawmaking: The Experience and the View of the European Commission.” Noting that current simplification efforts are deeply rooted in the Community’s principles of subsidiarity and proportionality, Azzi presents the Commission’s methods of simplification including “formal consolidation,” “informal consolidation” and “recasting.” Given the number of initiatives and programs in recent years, Azzi concludes that better lawmaking will be among the current Commission’s key legacies. He does, however, warn that the Council, the European Parliament and the Member States have an indispensable role to play in improving the European legislative process.

The challenge to Member States has been addressed in Finland, according to that country’s Jyrki Tala of the National Research Institute of Legal Policy, Juhani Korhonen of the Ministry of Finance and Kaijus Ervasti of the National Research Institute of Legal Policy. In their contribution, “Improving the Quality of Law Drafting in Finland,” these authors present an in-depth discussion of the Finnish Government’s current efforts to improve the legislative drafting process. After presenting a “holistic perspective” on the legislative drafting process, the authors evaluate the government’s implementation of economic and environmental impact assessments for proposed legislation. They conclude with a prediction that future Finnish efforts will focus on support for the realization and implementation of regulations and post hoc assessment of their effects. Although the goal of establishing a high-standard legislative drafting culture in Finland has not yet been achieved, the efforts discussed in this paper indicate that significant steps in that direction have been taken.

Another Member State perspective is provided by Germany’s Emanuel Metz, Head of the Federal Ministry of Interior’s Working Group on Simplifying the Law and Modernizing the Administrative Apparatus. In his article, “Simplification of the Public Administration: The ‘Lean State’ as a Long-Term Task,” Metz presents a seven-point program to reduce superfluous bureaucracy. The author explains that the “lean state” must become tangible for the individual citizen and business enterprise and for public administrations. Furthermore, while the European Commission has warned that the Member State governments must do their share of work to improve the legislative process, Metz warns that the thinking and conduct of civil servants and individual citizens must also change to achieve the “lean state.”

Although the starting point of reform in these articles is at the procedural level, changes in procedure will inevitably impact the substance of legislation and policy. Procedural reforms such as consultation with businesses and other interest groups before proposing legislation, environmental impact analysis and the privatization of government functions will have the effect of blurring the line between “regulatory” and “administrative” reform. As European Union institutions and Member States continue down the path of administrative reform there is good reason to welcome these efforts. In addition to reinforcing already- achieved reforms, administrative reform may lead to further substantive reforms as the legislative processes become more open and proposals–as well as current policies-are subjected to more systematic scrutiny.