Engaging with those concerned and affected by regulations is fundamental to improve the quality of regulations, to strengthen public trust in government and to enhance compliance with regulations. This chapter discusses the stakeholder engagement practices in each EU Member State and the European Union based on the results of the 2018 Indicators of Regulatory Policy and Governance. It assesses the use of stakeholder engagement in all EU Member States at various stages of policy development, on their own regulatory proposals as well as those of the European Commission. The chapter also addresses the communication tools currently used by EU countries when engaging with stakeholders and whether stakeholders receive feedback on how their comments were taken into account.
Better Regulation Practices across the European Union
Chapter 2. Stakeholder engagement across the European Union
Abstract
Note by Turkey: The information in this document with reference to “Cyprus” relates to the southern part of the Island. There is no single authority representing both Turkish and Greek Cypriot people on the Island. Turkey recognises the Turkish Republic of Northern Cyprus (TRNC). Until a lasting and equitable solution is found within the context of the United Nations, Turkey shall preserve its position concerning the “Cyprus issue”.
Note by all the European Union Member States of the OECD and the European Union: The Republic of Cyprus is recognised by all members of the United Nations with the exception of Turkey. The information in this document relates to the area under the effective control of the Government of the Republic of Cyprus.
Introduction
The central objective of regulatory policy is to ensure that regulations are of net benefit to society. A critical aspect of this objective is to communicate with those interested in and affected by regulations – the “stakeholders”. A process of communication, consultation and engagement which allows for public participation of stakeholders in the regulation‑making process as well as in the revision of regulations can help governments understand citizens’ and other stakeholders’ needs and improve trust in government (OECD, 2012[1]).
It is recognised that engaging with those concerned and affected by regulation is of fundamental importance to improve the design of regulations (and thereby decrease regulatory burdens on business, as well as decrease regulatory costs to government), enhance compliance with regulations and increase public trust in government. Amid contemporary challenges of representative democracies, such as the increased distrust of political parties and civic disaffection (Altman, 2013[2]; Dalton and Weldon, 2005[3]; Dogan, 2005[4]), OECD countries collectively only relatively recently acknowledged the importance of “pay[ing] more attention to the voice of users, who need to be part of the regulatory development process” (OECD, 2011[5]). As was noted in Chapter 1, the European Commission adopted general principles and minimum standards in 2002.
By engaging with stakeholders – who can contribute their own experiences, expertise, perspectives and ideas to the consideration of the regulation in progress – governments gain valuable information on which to base their policy decisions. Information from stakeholders can help to avert unintended effects and practical implementation problems of regulations. Tapping into the knowledge of stakeholders is also useful in connection with regulatory impact assessments to collect and check empirical information for analytical purposes; identify policy alternatives including non-regulatory options; and measure stakeholders’ expectations. Furthermore, stakeholders can provide a quality check on the regulators’ assessment of costs and benefits.
Meaningful stakeholder engagement in the development of regulations is expected to lead to higher compliance and acceptance of regulations, in particular when stakeholders feel that their views were considered, they received an explanation of what happened with their comments, and they feel treated with respect (Lind and Arndt, 2016[6]). Perfunctory consultation without any actual interest in the views of stakeholders because a decision has already been made, or failure to demonstrate that consultation comments have been considered may have the opposite effect. Furthermore, governments can incur additional costs to achieve compliance and effectively enforce regulations, thereby imposing unnecessary burdens on compliant businesses. At the same time, perfunctory consultation increases risks of both regulatory and market failures, potentially putting citizens’ lives at risk.
The OECD has formally recognised such risks, and the OECD 2012 Recommendation provides that member countries should “Adhere to principles of open government, including transparency and participation in the regulatory process to ensure that regulation serves the public interest and is informed by the legitimate needs of those interested in and affected by regulation. This includes providing meaningful opportunities (including online) for the public to contribute to the process of preparing draft regulatory proposals and to the quality of the supporting analysis. Governments should ensure that regulations are comprehensible and clear and that parties can easily understand their rights and obligations” (OECD, 2012[1]).
This chapter analyses EU Member States’ stakeholder engagement requirements and practices as reported in the iREG survey and its extension to all EU Member States. The construction of the surveys was explained in the reader’s guide and is covered in Annex B. The section below presents the key findings of the iREG survey as they relate to the European Union and other OECD member countries where appropriate. The second section presents an overview of the results based on the survey. The third section provides the central stakeholder engagement requirements across the EU. The section on stakeholder engagement in the different stages of the rule-making process discusses stakeholder engagement requirements and their implementation to the various stages of policy development across EU Member States. The section on communication tools addresses the tools currently utilised by Member States when engaging with stakeholders. The section on stakeholder engagement during the development and transposition of EU legislation discusses EU Member States’ consultation requirements on EU-made laws. The section on effectiveness of stakeholder engagement discusses the importance of evaluating consultation practices and provides some examples where Member States have undertaken reviews.
Key findings
Although all EU Member States have invested in consulting with stakeholders on regulatory proposals, there are substantive differences across countries in both their requirements and practices. All Member States have consultation requirements in place, and they generally provide the opportunity for input from the broader public. Consultation requirements tend to be less stringent for subordinate regulations than they are for primary laws. Similarly, the European Commission has invested significantly into improving its dialogue with stakeholders in recent years. In particular, it has a structured approach to inform the public on upcoming consultation activities and engage with affected members of the public throughout the policy development process (see section Stakeholder engagement during the development and transposition of EU legislation).
In order to maximise the value of stakeholder engagement it is important that policy makers are engaged at both the early stage and the late stage of the policy making process. Consultation requirements at an early stage of policy development – where a regulatory problem has been identified and feasible options are being considered – are far less developed than they are once a decision has been made to regulate, and a preferred regulatory option has been identified. This denies stakeholders the opportunity to provide input into the regulatory process at a stage where other options could be put forward by affected parties and assessed by policy makers. In turn, this may leave stakeholders feeling that their inputs are not valued, negatively affecting trust in the decisions made, and potentially causing additional costs to government at a later stage through additional compliance and enforcement outlays.
In the case of each developed regulation regardless of whether any other forms of engagement have taken place before, a notice and comment (or similar) procedure has to take place. Stakeholders should know that there are certain procedures which every regulatory project has to go through, where all stakeholders have an opportunity to get involved. Substantive investments have been undertaken by EU Member States to seek input on draft laws from affected parties, especially via electronic communication means. The general trend is that Member States have more complete requirements later in the policy development process.
Member States do not generally use annual plans, roadmaps or similar tools to inform stakeholders well in advance of possible future requests for their input in forthcoming consultations on regulatory proposals. This denies stakeholders the benefit of being able to better consider whether they can provide meaningful feedback on upcoming consultations, and also prevents policy makers from having these insights provided to them during the nascent stage of policy development.
EU Member States have invested in a broad range of methods to help ensure that all affected parties are notified about consultations. That said, this is far more likely in relation to consultations where a regulatory decision has already been made. Member States have invested heavily in improving their online communication tools. Most Member States now have online central consultation portals in place, in addition to individual ministry websites. In some countries these websites have become quite advanced, allowing stakeholders to comment ‘live’ on draft laws, and also allowing for a discussion between multiple stakeholders. While these investments should be acknowledged, it is still often unclear how (or if) these comments are taken into account by policy makers. More needs to be done to transparently demonstrate how consultations have helped to improve regulatory proposals.
Similarly to OECD countries, EU Member States have not tended to assess whether their stakeholder engagement practices are in fact yielding the expected results. It is therefore unknown whether, and to what extent, stakeholders have improved the design of regulatory proposals, and in turn how that has helped to improve societal welfare.
An overview of stakeholder engagement across the EU
There is a substantive amount of variation across the EU Member States’ requirements and implementation of stakeholder engagement in the development of primary laws (Figure 2.1) and subordinate regulations (Figure 2.2). The reader’s guide at the beginning of this report covered the construction of the composite indicators, including the disclaimers concerning conclusions that may be drawn given the inherent limitations of cross-country comparable composite indicators.
Relative to regulatory impact assessment and ex post evaluation however (see Chapters 3 and 4), the results for primary laws exhibit less variance. Stakeholder engagement requirements generally apply across various policy areas in EU Member States. There is at least some level of formal requirements to conduct stakeholder engagement across all EU Member States. In general, Member States exhibit more complete requirements during later stages of policy development, than they do at earlier stages. This is the case for 17 of the 28 Member States, including Croatia, Ireland, Latvia, Luxembourg, and Sweden.
EU Member States generally have stronger consultation methodologies in place once a regulatory decision to regulate has been made, compared with earlier stages of policy development. In practice, 21 out of 28 EU Member States always conduct consultation on draft primary laws; whereas only Belgium, Italy, and the United Kingdom uniformly require stakeholder engagement to be conducted so as to inform officials about the nature of the problem and to inform discussions on possible solutions. The forms of consultations such as the use of meetings and advisory groups are utilised more heavily at the later stages of policy development, compared with more nascent stages of policy development. This is especially the case for Austria, Cyprus, and Hungary.
Figure 2.1. Composite indicators: Stakeholder engagement in developing primary laws, 2018
Note: Data for 2015 is based on the 34 countries that were OECD members in 2014 and the European Union, which included 21 of the current 28 EU Member States. The OECD average is based on the 34 member countries at the time of the survey. Data for 2018 includes the remaining EU Member States of Bulgaria, Croatia, Cyprus, Malta and Romania. The more regulatory practices as advocated in the 2012 Recommendation a country has implemented, the higher its iREG score. * In the majority of EU Member States, most primary laws are initiated by the executive, except for Bulgaria, where a higher share of primary laws are initiated by the legislature.
Source: Indicators of Regulatory Policy and Governance Surveys 2014 and 2017, http://oe.cd/ireg.
There is room to improve EU Member States’ transparency of their stakeholder engagement. Only Croatia, Finland, Italy, and the Slovak Republic systematically inform members of the public in advance that a public consultation is planned to take place, for instance by publishing announcements via websites, roadmaps or annual regulatory plans. Furthermore, where consultations have been undertaken, around 60% of EU Member States formally require policy makers to consider consultation comments when developing final draft laws. Member States use a variety of approaches, with the majority of EU countries publishing individual comments received or a summary of the contributions on a dedicated consultation website.
Oversight and quality control is weak across EU Member States. Austria, Finland, and Hungary do not currently have any oversight for stakeholder engagement. In less than half of the Member States public evaluations of stakeholder engagement have been undertaken.
With regards to subordinate regulations, EU Member States’ consultation systems are generally less developed than they are for primary laws (Figure 2.2). Only in France, Malta, Portugal, and Spain are there more stringent consultation requirements for subordinate regulations than for primary laws; whilst Bulgaria, the Czech Republic, and Hungary have similar consultation requirements and practices for primary and subordinate laws. Stakeholders may be informed of regulatory proposals relating to primary laws via the general media for instance, but subordinate regulations are not always as highly visible. It is therefore important that stakeholders remain informed of regulatory proposals relating to subordinate regulations, especially since they often impose regulatory requirements on business. One such way to help ensure that stakeholders are informed in a sufficient manner could be via electronic means.
Figure 2.2. Composite indicators: Stakeholder engagement in developing subordinate regulations, 2018
Note: Data for 2015 is based on the 34 countries that were OECD members in 2014 and the European Union, which included 21 of the current 28 EU Member States. The OECD average is based on the 34 member countries at the time of the survey. Data for 2018 includes the remaining EU Member States of Bulgaria, Croatia, Cyprus, Malta and Romania. The more regulatory practices as advocated in the 2012 Recommendation a country has implemented, the higher its iREG score.
Source: Indicators of Regulatory Policy and Governance Surveys 2014 and 2017, http://oe.cd/ireg.
Across the EU Member States — and in parallel with primary laws — countries generally have formal requirements in place for engaging with stakeholders in the development of subordinate regulations. However, also similarly to primary laws, EU Member States tend to engage with stakeholders at a later stage of regulatory development, i.e. when a preferred regulatory option has been identified. That said, it should be noted that both Belgium and Italy require stakeholder engagement at an early stage of policy development for major subordinate regulations.
Following a similar trend, EU Member States overall have tended to develop more complete consultation methodologies at a later stage of policy development. This includes things such as minimum consultation periods, as well as facilitating feedback from the general public. Relatively stronger requirements at an early stage of policy development, coupled with public consultations at a later stage, are observed in Bulgaria, Croatia, Lithuania, Malta, Romania, the Slovak Republic, and the United Kingdom. It should also be noted that the European Commission’s requirements at this stage are similarly robust.
There is substantive scope to improve the transparency of stakeholder engagement in the development of subordinate regulations across EU Member States. Only Bulgaria, Croatia, the Slovak Republic, and the United Kingdom have requirements in place to consider and respond to stakeholder comments through an open and public process. The European Union has a similarly transparent system. Although all EU Member States (apart from Romania) have a public, up to date and complete online searchable database of current laws, the transparency of proposed laws is currently at a more much more nascent stage of development.
The oversight of EU Member States’ stakeholder engagement practices is weak overall. Only Croatia, the Netherlands, and the United Kingdom have formal oversight requirements in place where policy makers are held to account for the quality of their stakeholder engagement via third parties such as the judiciary and/or various review or standing bodies—as well as providing more comprehensive compliance statistics on consultations in practice. The European Commission’s system has similar features.
General stakeholder engagement requirements across the EU
Stakeholder engagement helps governments to collect more and better information, increase compliance, and reduce uninformed opposition. Affected stakeholders include citizens, businesses, consumers, and employees (including their representative organisations and associations), the public sector, non‑governmental organisations, international trading partners and other stakeholders. It is also important to remember that not all affected stakeholders have equal access and resources to devote to engaging with regulatory decision makers. In particular, stakeholders such as small businesses, and those experiencing various forms of social disadvantage often find it difficult to have their views heard. A proportionate and focussed approach to stakeholder engagement allows for better targeting of affected entities to be informed about upcoming consultations, who then, based on their individual circumstances, can determine whether to engage with the ministry responsible.
The European Union has long recognised the importance of consulting with affected stakeholders (see Chapter 1). The development of the EU better regulation agenda has resulted in an increased focus on ensuring that affected stakeholders are consulted with. Previous research by the OECD almost a decade ago found that consultation processes had improved across 15 EU Member States, which was a result of e-government investments and part of the better regulation agenda more broadly (OECD, 2009[7]). Some of these consultation systems have subsequently been reviewed (see section Effectiveness of stakeholder engagement), and have resulted in recent changes such as to the accessibility of information and engaging with stakeholders early in the policy development process.
General requirements for stakeholder engagement
A key element of the 2012 OECD Recommendation is that governments should establish a clear policy identifying how open and balanced public consultation on the development of rules will take place (OECD, 2012[1]). Such a policy does not have to be a standalone document on regulatory policy; it can be part of a more general policy on open government. To make such a policy work in practice, however, it should include a combination of mandatory factors and basic principles for stakeholder engagement, complemented by guidance on what kinds of tools are available and suitable for particular regulatory proposals.
All EU Member States have implemented requirements to conduct stakeholder engagement on both primary laws (Figure 2.3) and subordinate regulations (Figure 2.4). The survey results indicate that 20 EU Member States have a requirement to conduct stakeholder engagement to inform the development of all primary laws (Figure 2.3, left pane). While this indicates a strong commitment to consult, it also matters who is consulted with. Here, it is illustrated that consultation with the general public is always required in only around half of the EU Member States (Figure 2.3, right pane). This demonstrates that the commitment to conduct public consultation is not quite as strong as it is when involving selected stakeholders in developing primary laws. Austria, the Czech Republic, Finland, Germany and Ireland do not require conducting consultation with the general public for any primary laws. In all of these countries, however, public consultation takes place in practice to varying degrees.
Figure 2.3. Requirements to conduct stakeholder engagement for primary laws
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Similar to the development of primary laws, most EU Member States have a requirement in place to systematically involve stakeholders when developing subordinate regulations (Figure 2.4 left pane). It is interesting to note that more EU Member States seem to apply a proportionate approach towards stakeholder engagement compared to primary laws, focussing more frequently on those subordinate regulations with significant impacts. The survey results confirm that requirements to ensure that consultations are accessible to the general public are less widespread for subordinate regulations. Nearly 40% of EU Member States always require consultations on subordinate regulations to be conducted with the general public (Figure 2.4 right pane). This might relate to the fact that subordinate regulations can be more narrowly focused and of a more technical nature and therefore might require more specific feedback from stakeholders with a certain level of expertise in some cases. However, when deciding who to consult with when developing subordinate regulations, governments should also consider that the development of regulations are usually not subject to parliamentary oversight and hence to less public scrutiny than the processes for primary laws.
Figure 2.4. Requirements to conduct stakeholder engagement for subordinate regulations
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Around three quarters of EU Member States have guidance documents to assist regulators undertake stakeholder engagement during the development of regulations. EU countries usually have instructions available with regards to both primary laws and subordinate regulations. Spain is the sole EU country that currently provides policy makers with bespoke guidance applying to subordinate regulations and not to primary laws. Greece, Hungary, Lithuania, Luxembourg, the Netherlands and Portugal do not have any guidance documents for stakeholder engagement available, neither for primary laws nor for subordinate regulation. The fact that a number of EU countries do not have guidance documents available, however, raises concerns surrounding the robustness of consultation procedures. Regulators may need to be provided with direction on the forms of stakeholder engagement that are appropriate at different phases of the policy development process, and which are suitable for particular types of stakeholders. Providing such guidance might not only improve compliance, it might also help to avoid frustration and overburdening of both regulators and consulted stakeholders. Additionally, individual ministries may have historically consulted with narrow sections of the affected community and not considered to engage with the broader community. Without guidance, this practice may not be quick to change. This potentially means that policy makers do not avail themselves of pertinent information which may help to assess impacts and foresee risks that may not otherwise have been apparent.
The European Commission revised and strengthened its guidelines for stakeholder engagement with its 2015 Better Regulation Package. In accordance with the revised Better Regulation Guidelines, stakeholder engagement and public consultation are required for legislative initiatives and major subordinate regulations at multiple stages throughout the development of regulatory proposals (see Box 2.3).
Advanced notice and minimum consultation periods
To ensure that stakeholders are effectively involved, policy makers need to engage with stakeholders sufficiently early in the regulation making process. Clear timelines for stakeholder engagement activities can help to ensure that stakeholders have sufficient ability to submit their views (OECD, 2012[1]). EU Member States generally have provisions in place to set a minimum period for consultation with stakeholders. However, most Member States do not publish an annual regulatory plan, maintain a running list of possible future opportunities to provide input, or publish other early warning documents that could systematically inform the public in advance of planned consultation activities.
The survey results reveal that only a minority of EU Member States communicate planned consultations in advance to the public (Figure 2.5). Only Croatia, Finland, Italy and the Slovak Republic as well as the European Commission reported that they systematically inform the public before a consultation is initiated across policy areas. The European Commission for example indicates planned public consultations in roadmaps and inception impact assessments. These documents present an initial outline of ideas for planned regulations as well as plans for ex post evaluations and ‘fitness checks’. The Commission publishes roadmaps and inception impact assessments online for feedback at an early stage of the development of a proposal for four weeks. Interested parties can subscribe to a notification system, providing information on newly-published roadmaps. Moreover, the public can track upcoming opportunities to provide input for each initiative through a timeline indicated on the Commission’s consultation website (see Box 2.3). In other EU countries where consultations are announced in advance, it tends to be on an ad hoc basis and only in selected policy areas. For some stakeholders, it might therefore be difficult to get involved in public consultations, especially for more detailed or complex regulatory proposals where it takes time to gather information.
Figure 2.5. Members of the public are systematically informed in advance that a public consultation is planned to take place
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Once consultations on regulatory proposals have commenced, governments should make sure that those who are usually least represented in the rule‑making process are able to provide their views. For example, where affected entities’ views are not adequately represented through other means such as various associations etc., additional outreach may be required. Simply publishing information on the internet without reaching out to stakeholders is not always sufficient to ensure equal access to public consultations for affected parties.
Stakeholder engagement programmes generally should be flexible enough to be applied in different circumstances, and cope with different information needs. A framework of minimum standards must nevertheless provide consistency of stakeholder activities across government and ensure that there is always the opportunity for every stakeholder to express their opinions and provide inputs. For instance, NGOs, business associations or trade unions might have to co-ordinate a common position with their members or collect various types of information before participating in a consultation, which makes the process time consuming. A regulatory policy should also provide for regulators to extend the consultation process before it starts based on justified requests of stakeholders, if circumstances permit. A majority of EU Member States have provisions in place to ensure a minimum period of consultation. They range from 7 working days in Lithuania, and 10 days in Hungary and Romania, up to 12 weeks for certain procedures in Sweden. The European Commission also conducts a 12 week public consultation for most major policy proposals. The majority of those Member States with formal requirements in place provide for a mandatory minimum period of between 4 to 5 weeks (Table 2.1).
Table 2.1. Minimum periods for consultations in EU Member States
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Some EU Member States have set flexible minimum periods depending on the stage in the policy process, the type of regulatory proposals, or the stakeholders consulted with. In Lithuania for instance, the minimum period can be extended to 12 days for complex legal drafts above 10 pages. Poland distinguishes between primary laws and subordinate regulation; whereas for the former, a minimum requirement of 21 days applies, the latter only has a minimum period of 10 days. Additionally, the minimum period on draft primary laws can be extended to 30 days when consulting with unions. In the Slovak Republic, the minimum period of 4 weeks applies to early consultation with businesses and can be shortened in the case of agreement between the regulator and the consulted parties.
Dealing with comments received
It is necessary that administrations explain how stakeholder input has been assessed, considered and reflected in the decisions reached. Consultation strategies should be designed to prevent ‘consultation fatigue’ among stakeholders, which can occur where stakeholders are asked repeatedly or too frequently for their views on the same matter; or where there is no visible impact of engagement activities on the final regulatory proposal. It should be acknowledged that most EU Member States make the submissions they receive during consultations available to the public. The survey results indicate that 23 EU Member States for primary laws and 20 for subordinate regulations publish submissions made during consultations. Member States use a variety of approaches to do so, with the majority of EU countries publishing individual comments received or a summary of the contributions on a dedicated consultation website. However, not many Member States show a clear commitment to demonstrate how consultation comments have improved regulatory proposals. Perhaps more importantly, there does not appear to have been much of an improvement in this aspect over the past decade as this was identified as a substantive issue as part of OECD research into 15 EU Member States’ better regulation practices (OECD, 2009[7]). Countries which do not currently make the views of the participants public neither for primary laws nor for subordinate regulation are the Czech Republic, Hungary, Portugal, Romania, and Spain.
Governments need to transparently provide information on how they made use of submissions in order to ensure an effective consultation process as well as to demonstrate the impact of comments received on final regulatory proposals to both citizens as well as decision‑makers. In the majority of EU Member States, policy makers acknowledge inputs received by integrating them into regulatory impact assessments or passing them on to policy makers, e.g. by including them in explanatory memoranda (Figure 2.6). Nevertheless, it is of concern that in about a third of EU Member States, regulators are not formally obliged to actually take the results of consultation activities into account when developing regulations. Additionally, policy makers in EU countries are often not required to provide feedback to stakeholders on the comments received throughout consultations, for instance by providing individual answers to each author of consultation comments or a summary responding to the most significant comments. This raises doubts whether stakeholder engagement in EU Member States is currently delivering on its potential to improve regulatory quality, as well as civic engagement and trust in government accountability.
Figure 2.6. Obligations to consider consultation comments
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
The governments that indicated that they respond to comments received usually do so by providing a summary report on the most significant comments, as is the case in Lithuania, the Netherlands and Malta for example. The European Commission currently publishes synopsis reports, including a summary of the outcomes from consultations and an explanation about how feedback has been taken into account into the further development of proposals. A few countries also make use of interactive online tools to individually address the comments of participants in a consultation. In Croatia for instance, stakeholders are able to post comments on individual clauses of major draft regulations to its central consultation website. The responsible ministry is required to publicly address all comments received during a consultation. Similarly, the Greek central consultation portal allows members of the public and policy makers to react to comments proposed by stakeholders (see Table 2.3).
Stakeholder engagement in the different stages of the rule-making process
Engaging with stakeholders should start sufficiently early in the policy development process. When developing regulations, stakeholders’ input should be used to assist in defining the problem and the goals for proposed regulations, particularly in cases where there is a lack of data and uncertainty. In particular, a decision to regulate should not yet have been made at this point in the policy process. This is referred to as early stage consultation. Consultation documents at this stage should explicitly identify both the underlying policy objective and the widest possible range of alternatives. It should also make clear that an objective of the process is to uncover additional policy options that may not have been apparent to policy makers.
Late stage consultation refers to the point in the regulation making process where a preferred regulatory solution has been identified and/or a draft law has been published. Consultation documents would be expected to include how initial stakeholder engagement helped to eliminate and/or increase the number of options considered. At this stage it would be expected that the impacts of alternative options had been assessed, leaving a preferred option. Consultations would then focus on the robustness of the impact assessment, as well as any potential issues surrounding the implementation of the preferred regulatory option. Engagement should also be sought on how the preferred regulatory option can be complied with, how it will be enforced, and how it will be reviewed to so as to ensure that it remains fit for purpose over time.
Stakeholder engagement at the various stages of the rule-making process
Despite the benefits of involving stakeholders as early as possible in the policy process, systematically engaging with stakeholders before a preferred regulatory option has been identified is an uncommon practice across EU Member States (Figure 2.7). EU Member States usually do not systematically conduct stakeholder engagement before the development of a regulation. Only Belgium and the United Kingdom (for primary laws) systematically seek stakeholder input on policy problems and possible solutions during the development of all regulations with expected significant impacts. Since its recent reforms, Italy is also expected to require a greater focus on early stage consultation. The European Commission currently has requirements that place a strong emphasis on stakeholder engagement throughout the policy development process, including at an early stage (see Box 2.3). Most other EU countries do so on an ad hoc basis or only for selected policy areas.
Figure 2.7. Stakeholder engagement at the different stages of the rule-making process
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Almost all EU Member States engage with stakeholders on a systematic basis once a decision to regulate has been taken. Seeking feedback from stakeholders once a regulation has been drafted is the most common timing for stakeholder engagement among EU countries. Almost all consult on the basis of the draft of the primary laws or subordinate regulation this stage.
Forms of stakeholder engagement
A wide spectrum of consultation tools should be used to engage a broad diversity of stakeholders. Modes of consultation need to reflect the fact that different legitimate interests do not have the same access to the resources and opportunities to express their views to government, and that a diversity of channels for the communication of these views should be created and maintained (OECD, 2012[1]).
When EU Member States consult during the early stage of the rule-making process, stakeholder engagement remains mostly limited to selected policy areas and selected stakeholder or advisory groups, such as social partners or advisory committees (Figure 2.8). It is rare that EU Member States seek input on policy problems from the wider public. Results are broadly comparable to that for primary laws, with the distinction that all forms of stakeholder engagement are generally used less frequently when conducting consultation for subordinate regulations.
Figure 2.8. Forms of stakeholder engagement on primary laws used in the early stage of the rule-making process
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Once a preferred solution has been identified and a regulation has been drafted, EU Member States use a wide range of forms of stakeholder engagement (Figure 2.9). Both public consultation, as well as non-public forms of stakeholder engagement including formal and informal consultation, are widely used across EU Member States – although only in a minority of cases on a systematic basis. This reflects a common trend in stakeholder engagement practices across EU Member States throughout the last decade, specifically in countries with a strong corporatist tradition: many Member States have developed forms of consultation with the wider public via ICT tools, without simultaneously abolishing more traditional forms and formal arrangements of consulting social partners and organised interest groups on draft regulations (OECD, 2009[7]).
Figure 2.9. Forms of stakeholder engagement on primary laws used in the late stage of the rule-making process
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Documents used to conduct stakeholder engagement
As noted above, EU Member States have invested heavily in stakeholder engagement, and utilise a range of documents to engage with affected parties. The most common types of documents consulted on at an early stage of policy development are documents of legislative intent and consultation documents describing the problem and soliciting public input on possible solutions. The most utilised documents at a later stage are the draft text of a regulation and consultation documents describing the problem and suggested solutions.
It is important that policy makers receive stakeholder input throughout the regulatory design process. In practice this means that countries can benefit from the use of early stage regulatory impact statements where the regulatory problem is clearly identified, along with feasible regulatory and non-regulatory options. This is in addition to the more traditional regulatory impact statement which is expected to have conducted proportionate impact analysis, and may also have highlighted a preferred regulatory option.
Regulatory impact assessment is covered in detail in Chapter 3, but RIA is an important document upon which to conduct stakeholder engagement. This has been recognised by the OECD as an important aspect of both early and late stage consultation. General consultation processes should be closely linked with impact assessment processes for the development of new regulations through for example roadmaps, and giving early notice of possible regulatory initiatives and related consultation. The results of the consultations, together with individual contributions, should as far as possible, be made publicly available (including online where appropriate) in order to ensure a high level of transparency and reduce the risks of regulatory capture (OECD, 2012[1]).
Most EU Member States do not systematically link consultation and impact assessment processes at the early stage of regulatory development (Table 2.2). This represents a missed opportunity to seek input from stakeholders to assess the magnitude of the regulatory problem as well as consider various options — including ones not considered by policy makers. Generally, RIA is systematically used as a consultation document together with the draft regulations, which is obviously after a preferred solution has already been identified, and thereby potentially leaving little opportunity for stakeholders to effectively engage with the proposed regulation.
In 2015 the European Commission introduced consultations during the early stages of policy making. The Commission consults on major aspects of impact assessments and evaluations, and allows stakeholders to comment on draft legislative proposals and the accompanying final impact assessments after the approval by the College of Commissioners (see Box 2.3).
Table 2.2. RIA made available for stakeholder engagement
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Communication tools
In order to maximise the quality of information received from stakeholders, governments need to choose suitable consultation tools, cognisant of the types of stakeholders and the phase of the policy process, but based firmly on a framework of minimum standards. As was discussed in Chapter 1 and noted above, EU Member States have invested heavily in communication tools so as to better engage with affected entities. OECD countries have maintained a strong affinity with traditional offline communication tools such as official government publications or “gazettes”, press announcements and traditional media channels such as newspaper, radio or TV, whilst also more recently investing in online tools (OECD, 2018[8]). Enabling access to information electronically can be an efficient way to actively engage all relevant stakeholders during the regulation‑making process and as the digital gap continues to reduce over time, it is likely that online communication tools will remain an important medium for stakeholder engagement.
Online forms of communication
EU Member States have demonstrated a strong level of commitment to engaging stakeholders through electronic means. In particular, dedicated online portals to provide stakeholders with the opportunity to comment on draft regulations are notable. Survey results show that the most common means of publication are through central portals and/or ministry websites. The vast majority of EU Member States display ongoing consultations either on a central consultation website, or on websites of individual government departments or agencies (Figure 2.10). Nearly 80% of all EU Member States have a central website on which at least some ongoing consultations on primary laws are available. That said, the levels of transparency are substantively lower for subordinate regulations across Member States.
Figure 2.10. Use of consultation portals
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
EU Member States have used different approaches to integrate consultation portals into their institutional framework and regulatory processes (Table 2.3). Most EU countries have websites in place for ongoing consultations for both primary laws and subordinate regulations. Austria and Portugal only publish ongoing consultations for primary laws. Cyprus and Luxembourg are currently the only EU countries without a central consultation portal or separate websites on ministries for ongoing consultations for either primary laws or subordinate regulations.
Table 2.3. Selected consultation portals in EU Member States
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017,http://oe.cd/ireg; OECD Pilot database on stakeholder engagement practices in regulatory policy. http://www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm
Publishing consultations on a central portal does not mean that individual ministries and agencies cannot keep their specialised portals to communicate with the relevant policy community. However, central consultation portals can be an effective way to enable access to all ongoing consultation projects in one place and to make all documents supporting the consultation process easily accessible (e.g. see Box 2.1). The European Commission for example established a new central consultation website listing all consultations and feedback opportunities (see Box 2.3). Additionally, some of the Commission’s services separately provide reference to consultations in the relevant policy area on their own websites.
Box 2.1. The Slovak Republic’s government consultation portal
Public consultations are required for every legislative proposal submitted to the Slovak government. All legislative drafts and their accompanying impact assessments are automatically published on the government portal www.slov-lex.sk at the same time as they enter the inter-ministerial comment procedure. The portal provides a single access point to comment on legislative proposals and non-legislative drafts (e.g. concept notes, green or white papers). It seeks to ensure easier orientation and search in legislative materials to facilitate the evaluation of the interministerial consultation process, and to support compliance with legislative rules and time limits.
Both public authorities as well as members of the general public can provide comments on the legislative drafts and the accompanying material. All comments submitted are visible on the website. The deadline for comments is usually 15 working days. The general public can also access all final legislation through the government portal. Written comments can be submitted by members of the general public either as individual comments or as “collective comments”, to which individuals or organisations can signal their support. Whenever a comment receives support from 500 individuals or organisations, ministries are obliged to provide written feedback on the comment, either taking the comment into consideration for the legislative proposal or explaining why the comment has not been taken into account. The feedback provided is then part of the dossier submitted to the government for discussion.
Virtually all legislative proposals are adjusted following the consultation process. The number of comments received varies significantly for different legislative proposals. Accompanying impact assessments to the legislative proposal are also updated on the basis of comments received. Following the consultation process, a summary of comments received together with the reasoning for their consideration or non-consideration is published on the portal for all consultations.
The 2015 OECD Public Governance Review of the Slovak Republic finds that the number of comments received through the portal varies and that the portal is not used to the optimal extent by external stakeholders due to low user-friendliness and a lack of awareness of the possibility to comment through the portal. The latest version of the portal launched in April 2016 comprises a range of new features to increase user-friendliness, including the possibility to access and search through the portal all existing legislation that is part of the Official Gazette.
Source: OECD Pilot database on stakeholder engagement practices in regulatory policy. www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm.
Use of interactive websites
When used well, interactive websites can allow for a deeper level of engagement as they facilitate a ‘conversation’ between policy makers and affected stakeholders. Moreover though, they also allow for a dialogue between policy makers and multiple stakeholders, virtually simultaneously. Similar to OECD countries, EU Member States are primarily using interactive websites to consult on draft regulatory proposals, rather than engaging in a discussion with stakeholders in the early development of a proposal (OECD, 2018[8]).
Interactive websites allow for the possibility of stakeholders to refer to each other’s comments; to test the veracity of new ideas; provide impact analysis; and an assessment of alternative solutions. From the policy makers’ perspective, this can help to better group stakeholders’ views on certain aspects of regulatory proposals. From the stakeholders’ perspective, interactive websites allow for different experiences to be shared in a central place. For instance, many businesses may have struggled to comply with a particular regulation — and where one stakeholder highlights the difficulties they had, others can express similar views or highlight nuances if their experiences differed. This helps to save time and resources of policy makers and stakeholders. Regulatory proposals can, for instance, be easily grouped via online threads that make it easier for stakeholders to locate pertinent aspects which may affect them, whilst also providing valuable information to policy makers. As a result of the use of interactive websites, policy makers may be able to better target further additional consultations with affected parties, with more detailed questions if further information is sought; or with more detailed proposals where stakeholders raised a number of queries or concerns with particular aspects of a regulatory proposal.
The majority of EU Member States go beyond merely displaying consultations of draft regulations online, and allow members of the public to discuss draft proposals on an interactive website (Figure 2.11). However, EU countries make less frequent use of interactive websites to discuss ideas, complaints or impact analyses before a regulatory decision has been made. Out of all 28 EU Member States, 13 use interactive online tools to discuss plans to change existing regulation, while 11 consult on plans to regulate. This is consistent with earlier findings (see section Stakeholder engagement in the different stages of the rule-making process) that EU Member States consult less systematically at the early stage of the policy making process. However, as discussed above, it is at that stage that interactive online tools can have particular added value to gather views and discuss ideas with stakeholders, when designed in a user-friendly way (Box 2.2).
Figure 2.11. Use of interactive websites to consult on…
Note: Data is based on 28 EU Member States
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Most EU Member States that use interactive websites have developed their own tools operated by their respective government. Employing existing social media tools such as Facebook, LinkedIn or Twitter to consult stakeholders is relatively scarce among EU countries. That said, many Member States use social media to make the public aware of ongoing consultation activities or to link to their dedicated consultation websites.
Box 2.2. Finland’s online stakeholder engagement platform otakantaa.fi: “Have your say”
The eParticipation platform otakantaa.fi was launched in order to enable better interaction with the broader public during the early phase of policy-making. Otakantaa.fi aims to enable, enhance and promote the dialogue between citizens and the public administration to increase the quality of legal drafting, gather information on the different views, impacts and opportunities related to the practical implementation of the issues under consideration, and improving the trust in regulation and in democratic decision-making.
The website allows both public officials and members of the general public to start discussions on various topics, including the drafting of new laws to mapping needs and ideas for new policies. Stakeholder engagement is possible through two different tools: discussion forums and web surveys. Projects and initiatives are categorised on the platform by geography and by keywords, which can be chosen by the initiators of projects. The government structures and moderates the discussions, e.g. by providing guiding questions or supporting material. More than 90% of consultation projects are started by the government (national or local), and only 10 % are started by civil society and individuals. Business organisations (consulting firms) may start discussions when they support government organisations to arrange consultations.
Inputs received from stakeholders vary between long and detailed comments with some idea or evidence and short opinions or votes signalling participants’ agreement or disagreement. Inputs gathered can be used by public officials to inform further policy making, e.g. the authorities’ decision-making, law drafting, development of action plans or the identification of reform requirements. Usually, the initiator provides a summary of the discussions or the results of the survey as a follow-up to the consultation process, which is attached to other drafting material used in the government’s decision-making process.
A research project was launched in 2015 to evaluate consultation practices in the regulatory process, including otakantaa.fi, by a research group of the University of Helsinki. According to the results, attention should be focused on the scope, transparency and timing of hearing. The results also indicate that online consultation has yet to make a significant breakthrough in Finland although it has been used successfully in several law drafting cases.
Source: OECD Pilot database on stakeholder engagement practices in regulatory policy, www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm (accessed September 2018).
Stakeholder engagement during the development and transposition of EU legislation
A number of EU Member States have requirements to systematically inform stakeholders about regulatory proposals of the European Commission at the EU level. The process of creating EU-made laws was described in detail in Chapter 1. EU Member States’ requirements in relation to conducting impact assessment on EU directives and EU regulations are considered in Chapter 3.
Stakeholders may be notified about EC consultations in much the same way as if the proposal originated from the Member State, such as via consultation portals. A minority of Member States require consultations with domestic stakeholders during the negotiation phase of EU draft legislative acts. By contrast, the vast majority of EU Member States have requirements in place to undertake stakeholder consultation when transposing EU directives into national laws, generally as part of the usual domestic stakeholder engagement process.
Informing stakeholders of the European Commission’s consultation processes
The European Commission has a multi-stage process for ensuring that stakeholders are consulted throughout the development of regulatory proposals (Box 2.3).
Informing Member States’ stakeholders of European Commission consultations is important for at least two reasons. Firstly, it allows for the EC itself to engage with affected entities, thereby offering the potential to engage on alternative options and other matters such as implementation, enforcement, and review of the laws. Secondly, from a Member State’s perspective, it helps to identify particular local issues that may not be identified or otherwise considered at the EU level. Despite the Commission’s processes however, only around half of EU Member States directly inform their domestic stakeholders about the Commission’s consultations on draft EU directives and regulations (Figure 2.12).
Figure 2.12. Do Member State governments inform domestic stakeholders about European Commission consultation processes?
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Both Malta and Romania for instance have specific agencies in place to inform their domestic stakeholders about the European Commission’s consultation processes. The Malta-EU Steering Action Committee (MEUSAC) provides information on Malta’s positions during EU decision-making process and to steer a structured consultation process. The Core Group brings together representatives of Government, the national parliament, constituted bodies, three civil society representatives and EU-related entities (Malta-EU Steering Action Committee (MEUSAC), n.d.[9]). Through the Ministry of Labor and Social Justice in Romania, the EU-Consultation platform aims to provide information on current European Commission public consultations on a regular basis so to better involve civil society in the EU-law-making process, particularly in drafting and transposition (Ministry of Labor and Social Justice (Romania), n.d.[10]). In Italy, the Department for European Policies of the Presidency of the Council of Ministers has a dedicated website informing the general public about the online consultations of the European Commission. The website provides a general reference to the online consultation portal of the Commission as well as more specific information selected according to the policy priorities of the Government (Department for European Policies of the Presidency of the Council of Ministers (Italy), n.d.[11]).
Box 2.3. Stakeholder engagement throughout the policy cycle at the European Commission
Following the adoption of the 2015 Better Regulation Guidelines, the European Commission has extended its range of consultation methods to enable stakeholders to express their views on the entire lifecycle of a policy. It uses a range of different tools to engage with stakeholders at different points in the policy process. Timelines make it easy to track an initiative and to anticipate upcoming opportunities to provide input. Feedback and consultation input is taken into account by the Commission when further developing the legislative proposal or delegated/implementing act, and when evaluating existing regulation. At the initial stage of policy development, the public has the possibility to provide feedback on the Commission’s policy plans through roadmaps and inception impact assessments (IIA), including data and information they may possess on all aspects of the intended initiative and impact assessment. Feedback is taken into account by the Commission services when further developing the policy proposal. The feedback period for roadmaps and IIAs is four weeks.
As a second step, a consultation strategy is prepared setting out consultation objectives, targeted stakeholders and the consultation activities for each initiative. For most major policy initiatives, a 12 week public consultation is conducted through the multilingual “Have your say” portal and may be accompanied by other consultation methods. The consultation activities allow stakeholders to express their views on key aspects of the proposal and main elements of the impact assessment under preparation.
Stakeholders can provide feedback to the Commission on its proposals and their accompanying final impact assessments once they are adopted by the College. Stakeholder feedback is presented to the European Parliament and Council and aims to feed into the further legislative process. The consultation period for adopted proposals is 8 weeks. Draft delegated acts and important implementing acts are also published for stakeholder feedback on the European Commission’s website for a period of 4 weeks. At the end of the consultation work, an overall synopsis report should be drawn up covering the results of the different consultation activities that took place.
Finally, the Commission also consults stakeholders as part of the ex post evaluation of existing EU regulation. This includes feedback on evaluation roadmaps for the review of existing initiatives, and public consultations on evaluations of individual regulations and “fitness checks” (i.e. “comprehensive policy evaluations assessing whether the regulatory framework for a policy sector is fit for purpose”). In addition, stakeholders can provide their views on existing EU regulation at any time on the website “Lighten the load – Have your say”.
Source: OECD Pilot database on stakeholder engagement practices in regulatory policy. www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm.
Stakeholder engagement at the negotiation stage
Conducting stakeholder engagement early in the policy development process is necessary to identify specific domestic issues and sensitivities to EC regulatory proposals. In turn, this may help to more appropriately account for these issues during the development of regulatory proposals at the European Union level, and thus lessen or avoid potential delays in the transposition of EU directives later in the regulatory process. Much like stakeholder engagement more generally, it is important to provide the opportunity to the community to help shape regulatory proposals. It is recognised that making decisions without stakeholder engagement may lead to confrontation, dispute, disruption, boycott, distrust and public dissatisfaction (Rowe and Frewer, 2005[12]).
The majority of individual Member States do not inform domestic stakeholders about the EC’s regulatory proposals so as to help them form a negotiating position (Figure 2.13). Currently, the 11 EU Member States that require stakeholder engagement to be conducted at the negotiation stage are: Cyprus, Denmark, Estonia, Finland, France, Hungary, Italy, Latvia, Poland, the Slovak Republic, and Slovenia. In Poland for example, stakeholder engagement is thorough within the government but does not include the general public (Box 2.4).
Box 2.4. Polish consultation within government at the negotiation stage of EU-made laws
The consultation mechanism on draft legislative acts was created in the Ministry of Economy and was run as a pilot under the Better Regulations 2015 program. Explicit guidance details how national stakeholders are involved in the construction of the Polish negotiating position:
After the official presentation of a draft EU law by the European Commission, a specifically appointed leading expert forwards the text to internal and external stakeholders for comments to form the basis of Poland’s negotiating position.
An assessment of the legal impact of the draft EU law on Polish law should be made.
During further legislative stages, the leading expert transfers documents (e.g. Council agendas) to the stakeholders. Contact between the leading expert and stakeholders is maintained through regular information exchanges in order to update Poland’s position and to inform them about the next steps of the EU legislative process (e.g. trialogues).
The leading expert must consider changes in Poland’s position in the case of changes in the draft EU law, for example due to amendments made by either the Council or the European Parliament.
There is no wider consultation with the general public to shape Poland’s negotiation position.
Source: OECD, Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg; Government Legislation Centre (Poland) (n.d.), How to use the consultation mechanism and work on EU draft legislative acts?, https://www.rcl.gov.pl/book/255-jak-stosowa%C4%87-mechanizm-konsultacji-i-prowadzenia-prac-nad-projektami-akt%C3%B3w-legislacyjnych (accessed October 2018).
Cyprus, Denmark, France and Latvia indicated that they undertake stakeholder engagement to define a negotiating position, but do not undertake RIA at that stage. What is perhaps more stark however, is that in only Denmark, Estonia, Finland, Italy, the Slovak Republic, and Slovenia is consultation at this stage undertaken with the general public.
Figure 2.13. Requirements for Member States to conduct stakeholder engagement to define a negotiating position
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
These results are somewhat surprising. As noted in Chapter 1, once the negotiation stage has been reached, the European Commission has made a decision to regulate and has put a regulatory proposal to the Council and Parliament. In that regards, consultation at this stage takes place at a very late stage of policy development. The results are surprising given the near universality of late stage consultation requirements in EU Member States for their own domestic regulatory proposals (see section above). While it is important to stress that the negotiation phase of EU directives and regulations is not analogous to late stage consultation (see Chapter 1), they would both take place at a similar phase in the policy development cycle.
Stakeholder engagement at the transposition stage
Over 80% of EU Member States indicate that they conduct stakeholder engagement when transposing EU directives into national laws (Figure 2.14, left pane). These results are closer to those of individual Member States in relation to the consultation practices on the development of their own laws (see section Stakeholder engagement in the different stages of the rule-making process).
The four EU Member States that do not have specific requirements to conduct stakeholder engagement when transposing EU directives are: France, Ireland, the Netherlands, and Portugal. In France, stakeholder engagement is required to help define a negotiating position for the development of EU directives and regulations, and not when transposing EU directives. For the latter three Member States, this represents the fact that they each have no requirement to conduct stakeholder engagement at any stage in relation to European Commission regulatory proposals.
Figure 2.14. Requirements to conduct stakeholder engagement when transposing EU directives
Note: Data is based on 28 EU Member States.
Source: Indicators of Regulatory Policy and Governance Survey 2017, http://oe.cd/ireg.
Generally speaking, the requirements to conduct stakeholder engagement when transposing EU directives are the same as they are for Member State’s individual regulatory proposals (Figure 2.14, middle pane). Only in Denmark and Estonia are there explicit differences in requirements when it comes to the transposition of EU directives vis-à-vis their own consultation requirements on domestic-made laws. The Danish stakeholder engagement approach, notably the participation of stakeholders through the EU Implementation Council, relates to both the negotiation and transposition stages and was discussed in Chapter 1.
Despite the large number of Member States which conduct stakeholder engagement on the transposition of EU directives, consultation is only open to the general public in around two-thirds of those (Figure 2.14, right pane). It may well be completely appropriate that consultation on transposition focuses centrally on the legal accuracy of the EU directive being transposed. However it is also true that broader consultation can help to identify potential issues. For instance, issues associated with implementation; ensuring compliance; and creating an evidence base from which enforcement actions can be launched; and appropriate review over time — are all matters that can be identified and assessed by consulting more widely. Recent findings suggest that regulators are often not sufficiently consulted in the development of regulatory proposals, despite being ‘closer to the ground’ and potentially having a wealth of information on regulated entities (OECD, 2018[13]). Identifying these and related issues earlier in the policy development process can help to lessen and avoid transposition delays and thereby eschew infringement procedures and eventual financial penalties from the European Commission.
Effectiveness of stakeholder engagement
Information should be collected on the impact of regulation on the public, including their perception of regulation (Chapter 1). This helps governments to better structure their policies to address perceived issues and better prioritise reforms to focus on areas that may warrant regulation, or where regulation is unnecessarily burdensome. While there is unlikely to be any single best practice of engagement in regulatory policy, a robust evaluation system may facilitate learning that leads to adoption of improvements over time.
Among OECD countries, reports on stakeholder engagement practices are far less frequently conducted compared to reports on the performance of RIA. While the number of reports has increased since 2014, less than one third of OECD countries are currently reporting on their stakeholder engagement practices (OECD, 2018[8]). The survey results indicate that EU Member States rarely review the performance of their consultation systems and how they work in practice (see Chapter 1). However, where evaluations have been undertaken, they have demonstrated that they can be a powerful tool; providing insights to improve the effectiveness and ultimately also the acceptance of consultation channels amongst stakeholders. In 2017, the Netherlands reviewed the extent to which its internet consultation system was valued by citizens, companies, and departmental staff, as well as whether the objectives of the legislative process were being achieved. The results indicated that internet consultation is systematically used by government officials, whilst at the same time pointed to a number of weaknesses. For instance, the evaluation report concluded the need for more methodological instructions for government officials as well as a lack of visibility for citizens and businesses how consultation comments are taken into account (PLATO BV/ Ockham IPS, 2016[14]). The European Commission also reviewed its consultation practices prior to the revision of its consultation system in 2015 (Box 2.5).
Box 2.5. European Commission evaluation of its consultation practices
The 2012 review of the EU Commission’s consultation policy is a comprehensive report describing and reviewing current consultation practices. It addresses issues such as the openness and reach of consultation and the use of input received during consultation.
The review draws upon different sources. First, it contains an analysis of international standards, among them the 2012 OECD Recommendation of the Council on Regulatory Policy and Governance. Second, an open consultation of external stakeholders was used to gather a wide range of opinions. Third, input from different Commission services was sought, including data on consultations and impact assessments carried out between January 2010 and August 2012.
The report provides indicators concerning the Commission’s consultation practices, for example on the type of consultation, consultation tools, languages and length, as well as the availability of consultation outputs, and percentage of consultations with external parties in which the minimum consultation period was respected. The report also identifies measures that could be taken to enhance the quality of consultation, for example:
Adjusting the minimum standards;
Improving planning, for example by publishing a rolling calendar of planned consultations online;
Improving follow-up and feedback, for example through developing alert systems to notify respondents at key stages throughout the policy-making cycle.
The European Commission’s consultation practices were further refined in the Better Regulation guidelines and accompanying Better Regulation “Toolbox”, which were adopted by the European Commission in May 2015 as part of a “Better Regulation Package”. Reforms include new opportunities for the general public to participate in consultations on inception impact assessments for new regulatory initiatives with major impacts, on regulatory proposals after adoption by the European Commission, and on draft texts of delegated acts before adoption by the Commission. In addition, new methods of engaging stakeholders in the ex post evaluation of regulations were also introduced, including public consultations on roadmaps for evaluations and fitness checks, and a website collecting the public’s views on existing EU legislation and suggestions for burden reduction and regulatory improvements.
In 2018, the European Commission started to take stock of its 2015 Better Regulation Package. This review, which also includes stakeholder consultation, will be finalised in 2019.
Source : OECD (2014a), OECD Framework for Regulatory Policy Evaluation, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264214453-en; European Commission (2015), “Better regulation for better results – An EU agenda”, retrieved from http://ec.europa.eu/smart-regulation/better_regulation/documents/com_2015_215_en.pdf (accessed September 2018); OECD (2016), Pilot database on stakeholder engagement practices in regulatory policy. First set of practice examples.
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