This chapter identifies the drivers of regulatory policy and assesses the communication with stakeholders on strategy and policies. It also looks at the policies, processes and institutions for evaluating the efficiency and effectiveness of programmes and policies aimed at improving the regulatory environment. It also briefly reviews the role of e‑government in support of regulatory policy and governance.
Regulatory Policy in Slovenia
Oversight Matters
OECD Reviews of Regulatory Reform
Chapter 2. The context for Better Regulation in Slovenia
Abstract
Regulatory policy and core principles
Regulation, along with monetary and fiscal policy, is one of the three key levers for governments to shape economic development and societal well-being. A well-developed regulatory policy – the process governments use to develop policies and if necessary regulation – is absolutely critical for a country to meet its policy goals.
The objective of regulatory policy is to ensure that regulations are made in the public interest. It addresses the permanent need to ensure that regulations and regulatory frameworks are justified, of good quality and “fit-for-purpose” (OECD, 2010).
Building on that idea, the OECD Secretariat with the OECD Regulatory Policy Committee produced the 2012 Recommendation of the Council on Regulatory Policy and Governance, which lays the foundation for better policy making (see Box 2.1).
Box 2.1. The 2012 Recommendation of the OECD Council on Regulatory Policy and Governance
The 2012 Recommendation of the OECD Council on Regulatory Policy and Governance provides governments with clear and timely guidance on the principles, mechanisms and institutions required to improve the design, enforcement and review of their regulatory framework to the highest standards; it advises governments on the effective use of regulation to achieve better social, environmental and economic outcomes; and it calls for a “whole-of-government” approach to regulatory reform, with emphasis on the importance of consultation, co-ordination, communication, and co-operation to address the challenges posed by the inter-connectedness of sectors and economies. The Recommendation advises governments to:
Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation to ensure that, if regulation is used, the economic, social and environmental benefits justify the costs, the distributional effects are considered and the net benefits are maximised.
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.
Establish mechanisms and institutions to actively provide oversight of regulatory policy, procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality.
Integrate Regulatory Impact Assessment (RIA) into the early stages of the policy process for the formulation of new regulatory proposals. Clearly identify policy goals, and evaluate if regulation is necessary and how it can be most effective and efficient in achieving those goals. Consider means other than regulation and identify the trade-offs of the different approaches analysed to identify the best approach.
Conduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost justified, cost effective and consistent, and deliver the intended policy objectives.
Regularly publish reports on the performance of regulatory policy and reform programmes and the public authorities applying the regulations. Such reports should also include information on how regulatory tools such as RIA, public consultation practices and reviews of existing regulations are functioning in practice.
Develop a consistent policy covering the role and functions of regulatory agencies in order to provide greater confidence that regulatory decisions are made on an objective, impartial and consistent basis, without conflict of interest, bias or improper influence.
Ensure the effectiveness of systems for the review of the legality and procedural fairness of regulations and of decisions made by bodies empowered to issue regulatory sanctions. Ensure that citizens and businesses have access to these systems of review at reasonable cost and receive decisions in a timely manner.
As appropriate apply risk assessment, risk management, and risk communication strategies to the design and implementation of regulations to ensure that regulation is targeted and effective. Regulators should assess how regulations will be given effect and should design responsive implementation and enforcement strategies.
Where appropriate promote regulatory coherence through co-ordination mechanisms between the supranational, the national and sub-national levels of government. Identify cross-cutting regulatory issues at all levels of government, to promote coherence between regulatory approaches and avoid duplication or conflict of regulations.
Foster the development of regulatory management capacity and performance at sub-national levels of government.
In developing regulatory measures, give consideration to all relevant international standards and frameworks for co-operation in the same field and, where appropriate, their likely effects on parties outside the jurisdiction.
Source: OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD Publishing, Paris, www.oecd.org/gov/regulatory-policy/2012-recommendation.htm.
History of Better Regulation in Slovenia
Slovenia has made great strides in developing its regulatory policy framework. In fact, the development of a whole-of-government policy along with a strong focus on administrative burden reduction has substantially benefited Slovenia. For example, Slovenia has already improved its ranking in the World Bank Ease of Doing Business indicator. Between 2010 and 2016, Slovenia’s Ease of Doing Business Index Ranking increased from 53rd to 30th. Based on the distance-to-frontier metric, the ease of doing business in Slovenia is now close to the OECD average (World Bank, 2017).
Figure 2.1. World Bank Ease of Doing Business Index for OECD Countries by Distance-to-Frontier Metric, 2017
Source: World Bank (2017), “Ease of Doing Business Index: Distance-to-frontier Score, 2017”.
Most recently, reform efforts have focused on administrative burden reduction programs. In 2015, the Ministry of Public Administration (MPA) with two external consultants completed an evaluation of the effects of the administrative burden reduction programs from 2009 to 2015. They estimated that Slovenian businesses saved a total of EUR 365 million across 146 measures (see Chapter 6 for more on ex post evaluation).
Development of a whole-of government regulatory policy in Slovenia
The National Assembly of Slovenia has made a political commitment to a whole-of-government regulatory policy. The two most important documents with respect to Slovenia’s whole-of-government approach are the Resolution on Legislative Regulation and Rules of Procedure of the Government of the Republic of Slovenia.
The first substantial amendments of the Rules of Procedure of the Government of the Republic of Slovenia were adopted in 2006. The changes concerned the information and documents that the proposer of the regulation should provide to the government, in order to ensure quality of decision-making. From then, regulatory proposals had to contain a statement that consultation with the public at large and that interdepartmental consultation, in particular with the ministry responsible for finance and the government service responsible for legislation, had been carried out. An impact assessment also became mandatory, but it was restricted to impacts in a few key areas: public finance, compliance with the acquis of the European Union, administrative burden, economy, environment and social areas, which involves taking into account the effects on the legal and welfare state. Furthermore, the adopted provisions did not require a check on the quality, only that regulators had completed the procedures.
Additionally, in 2006 the General Secretariat of the Government adopted instructions for the preparation of the work programme of the Government of the Republic of Slovenia. The instructions are still in use when planning the regulatory work of the government.
On 19 November 2009, the National Assembly made an official political commitment to respect the principles of better regulation. The Resolution on Legislative Regulation represents a starting point and basic orientation of legislative work. It sets principles for regulation drafting, guidelines for conducting the impact assessment and co-operation with experts and other interested public.
By preparing and adopting the rules, the government should pursue the following objectives while collaborating with the expert and other interested public:
strengthening the rule of law
ensuring legal certainty
protecting human rights and fundamental freedoms
respecting the principle of separation of powers at the national level, in relation to the local self-government and the European Union
fully respecting the hierarchy of legal acts
ensuring clarity, transparency, quality, and legal certainty of the regulations
exercising civic participation
performing an impact assessment of the regulations, and
taking into consideration the efforts of the European Union and the Organisation for Economic Co-operation and Development in order to prepare better regulations.
Given that the resolution is not binding and represents primarily a political commitment, the Government of the Republic of Slovenia changed the Rules of Procedure of the Government of the Republic of Slovenia, through amendments the government implemented specific rules and procedures for impact assessments, stakeholder consultations as well as inter-ministerial co-ordination.
Even in 2006 ministries drafting regulation were responsible for co-ordinating regulatory development documents with the Ministry of Finance and the Government Office of Legislation. In 2010 Article 10 was amended so that material regarding development and planning documents must also first be harmonised with the ministry responsible for development. In accordance with the law regulating foreign affairs, material concerning the conclusion of international treaties and international acts other than treaties must be first co-ordinated with the ministry responsible for foreign affairs.
The General Administrative Procedures Act
Although the General Administrative Procedures Act is not a core element of regulatory policy in Slovenia, it still has an important role in certain aspects of its governance. The law, based on the constitutionally guaranteed right to equal procedural protection (Article 22 of the Constitution), regulates the procedural rights and obligations of participants in administrative procedures.
It regulates administrative procedures of administrative and other state bodies, local self‑governing local communities and holders of public authority must act when deciding on administrative matters.
From the perspective of better regulation it is important since the authorities are obliged to exchange data from official records, which means that it is not necessary for parties in administrative procedures to provide evidence of data already in official records.
According to Kovac, the purpose of administrative procedural law in general in the word is:
to protect the rights of the parties before the state or authority; and
to pursue public interest through the most effective administrative procedure.
Kovac also noted that the trend in amendments to the GAPA since 2001 has been “focused on promoting efficiency of administrative decision-making” i.e. introducing rationality in the pursuit of greater competitiveness, rather than protecting the rights.
Nearly in parallel to the GAPA, the Slovenian government also introduced the Rules of Procedure of the Government of Slovenia in 2001, which elaborates on the specific procedures that should be undertaken when developing new regulations.
Box 2.2. Guiding Principles of Slovenian Regulation
As part of the 2009 Resolution on legislative Regulation, The National Assembly embedded a series of principles into the development of regulation. These principles include:
The principle of the necessity of legal regulation requires the regulating authority to conduct an in-depth analysis of the policy (which is initiated or amended and supplemented). This analysis must include the problems that need to be regulated, causes of problems, precise objectives, and methods of regulation. In doing so, regulating should be limited to only those issues that do not have an alternative solution.
The principle of self-restraint requires the legislator to make a responsible decision when regulating social relations by provision. Legislators may interfere with the rights and freedoms only to the extent strictly necessary to attain the policy’s objectives.
The proportionality principle requires an assessment that the proposed regulation is necessary, appropriate and proportional when prescribing obligations (duties). Regulating social relations and interfering with rights and freedoms in order to attain objectives should only be done if they cannot be attained by other, less restrictive interventions.
The principle of the responsibility of the legislator presumes that the authorities shall act in accordance with the code of conduct of the profession when assuming political responsibility for the correctness of the adopted policies and the achievement of the objectives set, respect for the hierarchy of norms, legal system and nomotechnics.
The principle of definiteness requires authorities to prepare clear and commonly intelligible provisions securing legal certainty, clear expectations and equality before the law. The purpose of which is to limit various interpretations or implementations in practice.
The principle of accessibility requires authorities to ensure broad communication of new regulations within reasonable periods, which are only exceptionally shorter than the periods laid down by the constitution, and to enable access to provisions, as well as to updated and registers of applicable legislation.
The principle of simplification requires simple procedures with the possibility of the use of modern instruments and without undue burdens, transparency of regulations with a reasonable structure, correct and uniform terminology, codification of individual areas, and preparation of consolidated texts. It also prevents from modifying one regulation with provisions of the other regulation and delaying the application of a regulation already in force when there are no duly justified reasons therefore.
The principle of transparency presumes the presentation of the policy of regulation of a definite field to as broad a public as possible, especially to target groups to which it relates; announcement, preparation, and adoption of regulations under the ordinary legislative procedure that enable a high-quality communication, as well as the response and influence of the public concerned.
Source: Responses to the Slovenia Regulatory Policy Review Questionnaire.
Transparency, e-government and Better Regulation
Under the Access to Public Information Act (APIA), public sector bodies are legally required to proactively publish certain information online. The aim of the APIA is to ensure that the work of official bodies is public and open (transparency) and to enable natural and legal entities to exercise their rights to acquire public information from any public authority that holds such information that falls within the scope of its public tasks. To achieve the aim of the APIA, public authorities must endeavour to inform the public about their work to the greatest extent possible.
In 2008, the Manual for Planning, Managing and Evaluating of Public Participation Processes was prepared. The manual fully explains and presents various options for public participation in the regulation process.
In 2009, the web portal predlagam.vladi.si (“my.suggestion.gov.si”) was established. It enables involvement of citizens in the decision-making process with the help of ICT tools. The primary purpose of the channel is to encourage citizens to express their opinions, suggestions and proposals for the regulation of certain substantive issues.
Since 2010 the government has given special attention to public participation, publication of material online and inter-ministerial co-ordination. From then on, the general public could participate in consultation on draft proposals for between 30 and 60 days. Consultation, however, is generally only online and often much shorter than the prescribed minimum. The proposer of a regulation was also required to reply to opinions and considerations from expert circles and the public within 15 days of the adoption of the regulation or the submission of the proposed regulation.
Slovenia has established an eDemocracy portal, which enables citizens to co-operate and participate in the decision making process. The system, implemented in April 2010, allows stakeholders to remain informed and submit comments about regulatory proposals.
In October 2011, the government opened the Minus 25 portal in accordance with the Action Programme for the Reducing Administrative Burdens by 25% by 2012. The purpose of the portal was to provide the public with all current information regarding the implementation of the Programme for reducing administrative burdens or realisation of the “Minus 25%” Programme. The portal was especially intended to publish best practices (at both national and EU levels), reports on administrative burdens in an individual regulation measured in the programme, and to convey additional proposals by users for simplification. The Minus 25 portal was redesigned in 2013 and renamed to Stop the Bureaucracy portal (www.stopbirokraciji.si).
In May 2015 new Manual for planning and implementation of consultative processes and Guidelines for stakeholder involvement in the preparation of regulations were prepared within the project Strengthening capacity to implement regulatory impact assessment and public involvement in preparation and implementation of public policies (see Chapter 4 for more on stakeholder engagement).
Ex post evaluation of regulatory policy
Information on the performance of regulatory policy and regulatory reform programmes is necessary to identify if regulatory policy is being implemented effectively and if reforms are having the desired impact. They can also provide a benchmark for improving compliance by ministries and agencies with the requirements of regulatory policy such as reporting on the effective use of impact assessment, consultation, simplification measures and other practices (OECD, 2012a). Evaluations can furthermore help to target scarce resources to those reforms that result in the greatest improvements, and to generate the political support needed to implement regulatory policy reforms (OECD, 2015b). The European Commission for example undertook a comprehensive evaluation of its consultation system to inform the reform of the system (see Box 2.3)
Slovenia does not systemically monitor the impact of regulation policies, despite the fact that the Resolution on Legislative Regulation contains a provision that the National Assembly and the Government monitor the implementation of this resolution, with the exception of administrative burdens. The resolution also stipulates that the National Assembly will discuss the report on the implementation of the resolution. The opinion of the report will be considered by the working body of the National Assembly and the Government's at the end of the first year and at the beginning of the last year of the mandate. The National Assembly should adopt positions on the Resolution’s implementation and if necessary make amendments and supplements.
The Court of Audit and Ministry of Public Administration have intermittently evaluated the implementation of good regulatory policy practices in RIA and stakeholder engagement. Most recently, in July and August 2016 the Ministry of Public Administration conducted a comprehensive analysis of government submissions of proposed regulations in the years 2011, 2013 and 2015.
Like many better regulation units in OECD countries, the MPA in Slovenia has also tracked the total impact measures to reduce administrative burden. Most recently, the MPA with two external consultants estimated that a total of EUR 365 million were saved over 146 measures (see Chapter 6 for more information on Slovenia’s regulatory cost and administrative reduction burden programmes).
Drawing on a comprehensive analysis of government materials related to proposed regulations in the years 2011, 2013 and 2015, preliminary findings indicate that the regular procedure for preparing regulations was used more frequently in 2015 (66%) than in 2011 (47%) compared to a “shortened procedure” ignoring some of the better regulation tools. Publication of draft regulation on the e-democracy portal has increased from 76% to 82 %. Adherence to the minimum period for publishing draft is still low – about half of draft regulations are published for more than 30 days and quantification of impacts is mostly missing. The report on the final results is currently under preparation by the MPA, but it is not planned to be published publically.
Box 2.3. 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.
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 9 March 2016); OECD Pilot database on stakeholder engagement practices in regulatory policy, www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm.
The Court of Audit of the Republic of Slovenia has also undertaken evaluations of the implementation of regulatory impact analysis in Slovenia with a first report published in 2007, followed by another report in 2012. The publically available reports provide rich information on the number of regulations accompanied by impact assessments, the types of impact assessed and whether RIA is undertaken only as an administrative obligation. The 2012 report found for example that 71.7% of draft laws did not indicate the results of ex post evaluation and in 78.3% monitoring of the proposed regulation was not defined. The reports also provided concrete recommendations for improvement with the aim of focusing on these recommendations in the following audit report to monitor whether these have been implemented. Recommendations from both reports have been partially implemented. For example, regulations are no longer prepared by external experts, except for very rare circumstances.
Perception surveys of those involved in the regulatory process including officials, business and citizens can also provide valuable information on the actual implementation of regulatory policy, its outcomes and reasons for implementation gaps. (OECD, 2012b; OECD, 2014) (see Box 2.4). Positive perceptions can influence investment decisions and promote respect for and compliance with regulation. And sometimes irritation from experiences with regulation and frontline service counts more than burdens measured according to “objective” data. At the same time perceptions are complex and qualitative analysis is necessary to understand the factors driving the perceptions (OECD, 2012b). In the United Kingdom the National Audit Office has undertaken comprehensive evaluations of the administrative burden reduction programmes, drawing on perception surveys of businesses and interviews with officials involved in the programme in addition to quantified data on burden reduction (UK National audit office, 2008). The study helped inform the redesign of the UK’s government programmes to reduce burdens.
Box 2.4. Perception surveys on the quality of law and the administration in Germany
The Federal Statistical Office was commissioned by the Federal Government in 2015 to conduct surveys of individuals and companies on their subjective perception of public authorities and the body of law in specific life events. The survey exercise aims to identify measures for a more noticeable bureaucracy reduction and will be repeated every two years.
The approach identified typical life events in which citizens and companies interact with public authorities. Twenty two life events for individuals were selected ranging from the birth of a child to marriage, unemployment and need for long-term care. Similarly, 10 events for companies based on a company’s life cycle were selected, including business start-up, the appointment of employees, and business discontinuation. For every life event, an interactive customer-journey map was constructed displaying the typical and most important offices citizens or businesses have to contact and the procedures they have to complete to obtain the respective service.
In telephone surveys, more than 5 500 individuals and ca. 1 500 companies indicated their satisfaction with public agencies. The interviews inquired about the level of satisfaction of the interviewees with the services provided and the subjective importance they attach to different factors of their experience (e.g. the comprehensibility of the law, access to relevant information, non-discrimination, trustworthiness and opening hours).
Results show that on average, both citizens and businesses are largely satisfied with government services. On an ordinal scale from +2 (very satisfied) to –2 (very unsatisfied), the aggregate rating was +1.06 for citizens and +0.94 for companies. Both citizens and businesses consider trustworthiness of the public authority, non-discrimination, incorruptibility and professional expertise of public authorities’ staff the most important factors for their level of satisfaction. Respondents of both surveys were less satisfied with the comprehensibility of the law in general and of the forms in particular, as well as with information provided on the steps in the administrative process. While 61% of the businesses surveyed consider e-government as an important factor, only 30% of the citizens did.
In response to the survey results, the 2016 Work Programme on Better Regulation of the German government outlines several measures to further improve legislative procedures and reinforce a citizen and business-friendly administration/e-government. They include initiatives to increase the comprehensibility, transparency and accessibility of legislation, a training programme for legislators, and the examination of how innovative approaches can be used to ensure that legislation is geared towards the needs of citizens and businesses.
Source: OECD Pilot database on stakeholder engagement practices in regulatory policy. www.oecd.org/gov/regulatory-policy/pilot-database-on-stakeholder-engagement-practices.htm.
Assessment and recommendations
Since 2006, Slovenia has put in place a broad set of regulatory reforms that have already supported an improved business environment. The current better regulation agenda includes a whole-of-government political commitment as well as guiding documents to help regulators implement practices found in the 2012 Recommendation on Regulatory Policy and Governance. The Government of Slovenia should go beyond current reforms to further implement better regulation and support the development of “fit-for-purpose” regulation that improves the safety, health and well-being of citizens.
While Slovenia has the elements of good regulatory policy, implementation remains a major challenge. As the Court of Audit and MPA analysis shows, the recommendations and guidelines for RIA and stakeholder engagement are often not followed. Regulatory policy tools are often completed as more of a check-box exercise rather than used as an integral part of the decision-making process. A lack of oversight over the quality of the process continues to hamper the better regulation agenda.
Turning the political commitment into action will require a high-level strategy that aligns the goals of decision-makers and politicians and a systematic process to tracking how well regulatory policy management tools are used in practice.
The Government of Slovenia should relaunch Better Regulation to bring evidence-based policy back into focus in Slovenia. Evidence-based quality requires not just the commitment for the government to perform evaluation and stakeholder engagement, but also that the public and businesses are engaged in the process and provide the information and opinions that the government needs to truly improve policy.
The Government of Slovenia should create a high-level strategic plan to prioritise the implementation of regulatory policy. A high level strategic-plan would lay out the specific responsibilities for different actors in the regulatory process and also ensure co‑ordination between the various institutions such as the General Secretariat of Government, Government Office of Legislation, and National Assembly. The strategy would set forth roles for the scrutiny of RIA and stakeholder engagement as well as give them the authority to comment on the quality of the RIA and stakeholder engagement. The strategy could also include a renewed political commitment from the centre of government e.g. Cabinet and have a clear communication strategy to help engage the public in the scrutiny of the regulatory process.
The Government of Slovenia should continue to regularly monitor the state of regulatory policy in Slovenia. The Court of Audit and the Ministry of Public Administration have undertaken ad hoc reviews of the implementation of regulatory policy for RIA and stakeholder engagement. In addition, they could conduct reviews of ex post evaluation when they become a more common practice. However, regularly reviewing ministries’ progress in implementing regulatory policy tools could act as a catalyst for them to continue to improve procedures for RIA, stakeholder engagement, and ex post evaluation. A high-level co-ordination body or the Court of Audit could regularly undertake reviews and report on the results.
The reports could also include information on ex post evaluations conducted by ministries passed by emergency procedures (as highlighted in Chapter 6) and be discussed in parliament and with stakeholders to draw lessons from the findings.
The Better Regulation agenda should move beyond administrative burden reduction. The strong focus on administrative burden has so far yielded dividends for Slovenia as its place in the Doing Business rankings has steadily improved. However, like in many OECD countries, regulators should focus more on the benefits of regulations as well as the costs to create a fuller picture of regulatory impacts. Additionally, regulatory burden reduction programs should move from simple looking at administrative costs to businesses to also looking at how to improve competition, compliance costs, and the business environment more broadly.
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