Synthesis: “From better enforcement to better lawmaking?”

On Friday 17 March RENFORCE organized a symposium with the title: From better enforcement to better lawmaking. Speakers included Prof. Gert Jan Veerman (Maastricht University), Dr. Mira Scholten (Utrecht University),  Mr. Rob van de Westelaken (European Parliament), and ms. Anne-Jel Hoelen (Netherlands Authority for Consumers and Markets). The symposium sought to bridge not only lawmaking and enforcement but equally the EU and national levels; academia and practice as well as the political/technocratic divide.

On the lawmaking side, standards to measure the quality of legislation are usually vague, such as “justice” or “effectiveness”. Compliance with these standards is difficult to measure. Enforceability of legislation is a recurring standard, but there are many difficulties involved in ensuring enforceability. Not only do policymakers – at either the national or European level – have to decide which sanctions should be imposed, but they should also think about the group targeted by the legislation, possible incentives for noncompliance and organizational difficulties.

Although policymakers should take relevant information into account, because of the political character of legislation, they are resistant to learning from previous experiences. Legislation is the result of a compromise and should be a solution to a problem. This is inherent in the democratic process. Accordingly, impact assessments and evaluations are instruments – through key instruments for EU institutions – that produce rather “soft knowledge”. Notably, impact assessments are not scientific works but aim specifically to support policymaking, which finds its origin in political decision-making. Further, knowledge collected for impact assessments might provide insight into regulatory problems, but that does not equal a solution to those problems. It is the difference between causality and finality.  

Since the development of standards for legislation, a lot of experience and knowledge has been gathered, and science aims to continue to add to that body of knowledge.

Experiences in enforcement may provide valuable insights for policymakers. These may be relevant insights, especially if “successful” enforcement is linked to the policy aims underlying legislation – which can be very diverse, and the emphasis on particular aspects of policy aims – both in consumer and migration law – may shift over time. In addition, successful enforcement need not necessarily take place via sanctions, but may also take place informally. Depending on the area of law, enforceability, and suitable enforcement mechanisms, may also meet different challenges. The openness of drafters to enforcement experiences may also differ depending on the area – in highly political areas, this openness may be limited, and the emphasis may be on reaching a political agreement rather than informed decision-making. In contrast, if it concerns technocratic, non-political issues, there is more room to learn from experiences in enforcement. This does however leave the question of which areas are in the middle – not very political, but not non-political either. And, thinking of the Commission’s commitment to better regulation, what does this mean for evidence-informed lawmaking? Ideally, evidence-informed lawmaking should comprise both political and non-political measures, in the interest of the legislation’s problem-solving capacity. The European Commission does aim to collect some knowledge upfront, through impact assessments. The difficulty with legislation is, that one can only see ex-post, after enactment, whether it is enforceable, or more vaguely, generally, of good quality. Some hints for enforceable legislation are technologically neutral legislation, a preference for principle-based legislation and minimum enforcement powers for enforcement authorities.

Enforcement authorities seem well-placed to detect societal trends that may signal, in turn, regulatory problems. Reasons for non-compliance are diverse and should feed into the legislative process, for example via impact assessments. Currently, the understanding of enforcement at the EU level seems more limited – focusing on ensuring compliance rather than enforcement authorities’ potential to help address and solve regulatory problems. There is also limited room for analysis in impact assessment and drafters are likely to have to make choices on focusing on the problem analysis, policy options, or enforcement difficulties. But the EU level seems the appropriate level for such assessments, and complications may arise if national legislators implement EU legislation without an execution and enforceability assessment.

All in all, it has been an extremely fruitful afternoon, with many avenues for future RENFORCE research suggested.

Esther van Schagen
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Author: Esther van Schagen

Esther van Schagen is assistant professor in Private Law at the Utrecht Molengraaff Institute and a researcher within RENFORCE. In her research, Esther analyses consumer law and the development of consumer law from the EU better regulation perspective. She examines the collection of evidence by the European Commission in the drafting of proposals and the use of evidence throughout the EU legislative process.

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