Internet regulation in the European Union

Abstract

"Member States also adopt different institutional arrangements for conducting RIA s depending on the degree of centralisation, inter-departmental bargaining power and networking arrangements. At the end of the day however, despite the many differences, a common goal of RIA s emerges which is to change the culture of the regulators themselves so that, in one way or another, they are forced to pay much more attention to evaluating their own activities and to justifying their own actions both to those regulated and to the broader public. It is this culture change which the Commission itself is beginning to undertake. With respect to the EU, the initial focus was on the legal base for any proposed measure. This narrowly legal perspective began to broaden in response to the debate initiated in Edinburgh in 1992 about the practical implementation of the subsidiarity clause introduced into the EU s treaty base at Maastricht. This treaty provision requires the EU to justify why it, rather than the member states, should be taking a measure. Nevertheless the subsidiarity justification and the RIAs seen as part of it were until recently often regarded as formulaic paper exercises by each of the Brussels institutions. It is the concern about the EU s international competitiveness (or lack thereof) which has given a new spur to more thorough-going RIAs. This new concern culminated in the Mandelkern report presented to the European Council at the end of 2001, a Commission communication on simplifying and improving the regulatory environment and a new detailed action plan from the Commission in June 2002" "the OECDisation of the EU" "Thirdly, there is a related debate about whether the objective of reforms is to achieve more efficient delegation of existing authority (by member states to the centre or by the Commission to the member states) or a change in the locus of authority (the decentralisation of authority away from the Commission to the member states or conversely the centralisation of authority from the member states to the EU). In the case of competition the networking arrangements are those for the delegation of powers held by the Commission. By contrast in the case of financial regulation and possibly in the case of telecommunications regulation the picture is less clear. Some might argue that there is a shift in authority away from the Commission to national regulators and departments while others point to new constraints being imposed on previously independent national regulators. There are similar questions involved in the creation of executive agencies. Both Commission and Member states are reluctant to see agencies so powerful that they take on policy-making powers — but, if their terms of reference are too circumscribed then they do not offer potentially different and less politicised ways of doing things." "However, the more fundamental issue is about where regulatory harmonisation under superior EU law is needed and where it is better to allow for flexibility and concurrent legal systems. In theory the techniques of evidence-based regulation should themselves illuminate the choice of remedy and legal instrument. In practice a political determination has often run ahead of RIAs and other evaluation processes and contributed to making RIAs appear an empty formality."