Abstrakt

§ 1. Adjusting expectations? At first sight, regulatory impact assessments (RIAs) seem particularly well-suited to ensure that EU law is developed in accordance with subsidiarity. Problem analysis in RIAs, and the question whether harmonisation is both justified and likely to be more efficient in enhancing the internal market than Member States’ initiatives, should help to verify whether EU private law is developed in accordance with subsidiarity1. However, the continuous shortcomings in RIAs give rise to the question whether the expectations of RIAs should be lowered. Despite some general cautions against overinflated expectations of RIAs (para. 1 point I), the potential of RIAs to reinforce EU legislative discourse, as well as academic debate, is considerable (para. 1 point II), and while RIAs are non-binding, there are sufficient mechanisms and political support that should help to apply pressure for more thorough EU RIAs (para. 1 point III). I. What RIAs cannot do: prove the need for harmonisation and prevent further harmonisation Before determining what should be expected from RIAs in EU private law, some general cautions should be considered. Firstly, EU RIAs may not necessarily be successful in gathering sufficient, reliable data. The reliability of data may not only be compromised by the formulation of questions in surveys, but also by the willingness of people to respond to surveys, and the cognitive limitations of respondents. That is not to say that responses are necessarily unreliable, but it does mean that, for example, the outcome of surveys should be considered with caution. For European private law, that means that EU RIAs have to contend with a more general problem of empirical research: the difficulty in acquiring sufficient data. While drafters of RIAs may commission further research, the aims of EU measures adopted under Art. 114 TFEU – to achieve growth that is not achieved because of an unclear factor of a very general problem – entail that absolute proof is virtually impossible to deliver2. Therefore, despite the suitability of EU RIAs to empirically strengthen the need for harmonisation, they are not likely to deliver absolute answers. Secondly, RIAs are not binding measures, but should help rather than replace decision-making3. As a soft instrument, EU RIAs are based on the idea that providing decision-makers with scientific support will benefit both the decision-making process and the outcome of that process. In other words, RIAs do not, and should not, dictate the outcome of that process, but rather should help to ensure the quality of the decision-making process. Although the Commission has recognised the obligation to conduct RIAs for all major proposals, even this obligation does not entail an obligation to provide conclusive information. Especially in light of the generality of the aims of the acquis that make it difficult to prove absolutely that EU measures will achieve their aims, as well as the corresponding absence of “hard” scientific advice4, the EU legislator does not need to provide absolute proof that harmonisation is an efficient way to further the internal market. Thirdly, even if RIAs indicate that harmonisation will not increase cross-border trade, or if RIAs cannot pinpoint the effect of the harmonisation of private law on the internal market, they cannot force the EU legislator to abandon the harmonisation of private law5, if the EU legislator is nevertheless convinced that harmonisation is necessary, especially considering the long-standing disagreement on the harmonisation of private law6. This has also been confirmed 95by the CJEU7, ruling that the EU legislator ‘remains free to adopt measures other than those that were the subject of that impact assessment’. In this case, the EU legislator could still choose to harmonise private laws. Conversely, convincing empirical findings that clearly show the beneficial effect of harmonisation on, for example, consumer protection, can justify, but not compel the EU legislator to harmonise private law. However, RIAs indicating that harmonisation will hinder rather than help the EU legislator will not help the EU legislator to gain sufficient political support for further harmonisation. While the EU legislator may strictly still be competent, it seems difficult to imagine harmonisation if there is hard evidence that harmonisation will be detrimental. Fourthly, RIAs are not designed to address criticism on the lack of discussion on social justice considerations in the development of EU law in general8, and EU private law in particular9. The current use of RIAs entails some assumptions that should be outlined and compensated more thoroughly in EU private law debate. The emphasis on the economic effect of harmonisation in RIAs draws attention to a more general weakness inherent in RIAs: their tendency to emphasise the quantifiable arguments for or against a proposal10. As a result, the desirability of EU measures in terms of costs and benefits for the internal market is underlined, at the expense of benefits and detriments that are not easily quantifiable, in terms of, for example, environmental welfare or consumer protection11. Meuwese12 points out that RIAs have also been criticised for instrumentalising legislation. The focus on policy aims and how to best achieve those aims does not acknowledge that legislation, especially in private law, need not necessarily pursue a policy aim. Thereby, the focus on RIAs may mean that national perspectives on the systemic coherence of national private laws or the national legal views on justice that underpin national private laws13 being overlooked. The emphasis on RIAs on the costs and benefits of harmonisation should not mean that the development of the acquis is based on loosely defined economic concerns, contrary to fundamental national objections14. If the use of RIAs is improved, this should not mean that arguments with regard to the internal market should dominate the debate15. In conclusion, carrying out RIAs does not mean that drafters will succeed in acquiring reliable, sufficient or conclusive data to strengthen their RIA....