European Journal of Law Reform

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Issue 1, 2022 Expand all abstracts

In Search for ‘Good’ Evidence and Its Use for Better EU Legislation

Context, Insights and Prospects from Different Policy Domains

Authors Salvatore Fabio Nicolosi, Esther van Schagen and Jasper Sluijs
Author's information

Salvatore Fabio Nicolosi
Salvatore Fabio Nicolosi is Assistant Professor at Utrecht University and Researcher at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).

Esther van Schagen
Esther van Schagen is Assistant Professor at Utrecht University and Researcher at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).

Jasper Sluijs
Jasper Sluijs is Assistant Professor at Utrecht University and Researcher at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).

Access_open The Use of Scientific Evidence in Precautionary Decision-Making in EU Environmental Law

Keywords Science, evidence, precautionary principle, nature conservation, environmental law
Authors Rhoda Jennings
AbstractAuthor's information

    Precautionary decision-making forms a central element of European Union environmental law. The precautionary approach is premised on the use of scientific evidence. Through its interpretation of the principle, the Court of Justice of the European Union (CJEU) has read into nature conservation legislation, scientific evidentiary requirements. In its decisions on the Birds and Habitats Directives, the CJEU has placed great weight on the use of scientific data. It also emphasizes the role scientific evidence plays in ensuring the conservation objectives of the Directives are met. In an often opaque and complex approach to synthesizing scientific evidence at the pre-legislative stage, the CJEU is assuming a clarification and purposive role in its interpretation of legislation. The CJEU is indicating in clear terms the importance of scientific evidence. The decisions of the court are informing the application and interpretation of environmental law, and in particular, nature legislation.

Rhoda Jennings
Rhoda Jennings, EPA Irish Research Council Postgraduate Scholar, School of Law, University College Cork, Ireland. The research conducted in this publication was funded by the EPA and Irish Research Council. I am grateful to Professor Owen McIntyre for his valuable comments on earlier drafts of this paper. Any errors remain my own.

A Citizen-Centric Approach to Evidence-Based Decision-Making under the European Green Deal

Keywords Green Deal, impact assessment, social impacts, human rights, citizen-centric
Authors Asmaa Khadim and Hanneke van Eijken
AbstractAuthor's information

    The European Green Deal (EGD) is an ambitious plan that envisions a profound transformation of the EU economy in order to achieve climate and sustainability objectives, while recognizing the need for careful attention to the potential trade-offs between economic, environmental and social objectives. This raises important questions about how policymakers will strike the appropriate balance, and what evidence they must consider in the decision-making process to account for the social and human rights impacts of these sweeping new laws. This article takes a legal-doctrinal approach to assess the evidentiary basis of EGD decision-making and recommend that evidentiary requirements be re-framed and broadened to mandate comprehensive social impact assessment (SIA) and human rights impact assessment (HRIA). This is necessary to ensure that EU institutions properly assess and weigh the impacts of these sweeping changes upon public stakeholders when implementing the plan, which in turn is critical to achieving a ‘just transition’.

Asmaa Khadim
Asmaa Khadim is a postdoctoral researcher in Institutions for Conflict Resolution, Leiden University.

Hanneke van Eijken
Hanneke van Eijken is assistant professor in EU law, Utrecht University.

Cross-Border Impact Assessment for EU’s Border Regions

Keywords border regions, cross-border cooperation, impact assessment, evidence-based policy, territorial cohesion
Authors Martin Unfried, Pim Mertens, Nina Büttgen e.a.
AbstractAuthor's information

    Within the European Union (EU), border regions represent 40% of its territory, and they are home to a third of the EU’s population. The European Commission refers to border regions as ‘Living labs of European Integration’, where both the effects of free movement and remaining obstacles to integration are most visible. These are largely of legal or administrative nature, caused on both national and EU level. As acknowledged in the Commission’s report on Better Regulation, the Impact Assessment of EU policies has to be improved taking into account the perspective of, amongst others, cross-border areas. This article discusses the need and relevance of Cross-Border Impact Assessment to improve evidence-based policymaking, legislative procedure and implementation for (cross-)border regions through a multilevel governance approach. This special variation of the Territorial Impact Assessment may provide an opportunity for studying potential (cross-)border effects emanating from legislation systematically at the European level.

Martin Unfried
Martin Unfried, MSc is a senior researcher at the Institute for Transnational and Euregional cross-border cooperation and Mobility (ITEM) – Maastricht University.

Pim Mertens
Pim Mertens, MSc. LL.M is a scientific coordinator at the Institute for Transnational and Euregional cross-border cooperation and Mobility (ITEM) – Maastricht University.

Nina Büttgen
Dr. Nina Büttgen is a post-doctoral researcher at the Institute for Transnational and Euregional cross-border cooperation and Mobility (ITEM) – Maastricht University.

Hildegard Schneider
Em. Prof. Dr. Hildegard Schneider is a Professor Emeritus in European Migration Law at Maastricht University and ITEM.

Evidence-Based Policymaking in European Union Asylum Law

Potential and Pitfalls

Keywords asylum, migratory flows, risk assessment, user-friendly legislation, teleological effectiveness
Authors Salvatore Fabio Nicolosi
AbstractAuthor's information

    Evidence-based policymaking has become crucial in the area of asylum. In an attempt to offer a critical overview of the role and weight of ‘evidence’ in the current phase of reform of the Common European Asylum System (CEAS), this article illustrates how evidence-based policymaking in EU asylum law presents a number of pitfalls. Lack of a full impact assessment, instrumentalization of data and oversimplification of the available evidence, adversely impact the effectiveness of the CEAS. Conversely, the article aims to unfold the potential that the use of evidence may have in improving the quality of the EU legislation, by reflecting on its impact on migrants. The article will, therefore, propose that the use of evidence from a user’s perspective, namely from the point of view of those subjects that are mostly affected by the legislation, can contribute to the teleological effectiveness of the CEAS: ensuring adequate protection for third-country nationals in need for it.

Salvatore Fabio Nicolosi
Salvatore Fabio Nicolosi is Assistant Professor, Utrecht University and Research at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).

Evidence-Based Legislation in EU Competition Law

Reform of the Vertical Block Exemption Regulation as a Case Study

Keywords competition law, Better Regulation Agenda, vertical restraints, Vertical Block Exemption Regulation (VBER), More Economic Approach (MEA)
Authors Jasper P. Sluijs
AbstractAuthor's information

    Whereas the European Commission’s Better Regulation Agenda advances a broad standard for evidence in legislation, EU competition law more narrowly relies on economic evidence focused on welfare effects. This article explores this inherent tension by means of a case study of the 2018-2022 revision of the Vertical Block Exemption Regulation (VBER). It is found that economic evidence has been only one of many sources of evidence in the VBER revision process, which put particular attention on evidence through stakeholder consultation. This is understandable within the context of the Better Regulation Agenda, but nonetheless striking when considering EU competition law’s reliance on economic evidence over non-economic evidence under the Commission’s ‘More Economic Approach’. Moreover, it is unclear why economic evidence was gathered to evaluate some aspects of the VBER and not on others. Furthermore, the Commission has been strategic in drawing conclusions from economic research and, considering the limitations thereof, seemingly based on its predefined preference for specific policy options.

Jasper P. Sluijs
Jasper P. Sluijs is Assistant professor, Utrecht University School of Law, The Netherlands, j.sluijs@uu.nl. The author acknowledges Lisanne Hummel, Esther van Schagen and Baskaran Balasingham for valuable comments on early drafts. The author has nothing to disclose under the ASCOLA Transparency and Disclosure Declaration.

Designing Information Obligations in EU Consumer and Energy Law

Behavioural Research and Legal Design as ‘Best Available Evidence’

Keywords better regulation, impact assessment, information obligations, consumer law, energy policy, behavioural science, legal design, evidence-based law-making
Authors Esther van Schagen, Jaap Baaij and Isabelle Rueda
AbstractAuthor's information

    This article argues that behavioural and legal design insights should become of pivotal importance in the preparation of information obligations in European Union consumer law. Such insights should be considered as ‘relevant’ and ‘best available’ evidence in the sense of the Better Regulation Guidelines and Toolbox because these provide invaluable insights into how consumers process information. Even more than the amended Enforcement and Modernisation Directive, the current revision of the Energy Efficiency Directive illustrates that the inclusion of both behavioural and legal design insights lead to information obligations that are shorter, more accessible and thus potentially more effective.

Esther van Schagen
Esther van Schagen is Assistant Professor at Utrecht University and researcher at the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).

Jaap Baaij
Jaap Baaij is Associate Professor at Utrecht University and researcher at the at the Montaigne Centre for Rule of Law and Administration of Justice.

Isabelle Rueda
Isabelle Rueda is Senior Lecturer at the University of Exeter and researcher at the Centre for European Legal Studies (CELS).

Of Hypothesis and Facts

The Curious Origins of the EU’s Regulation of High-Risk AI

Keywords AI Act, artificial intelligence, evidence, regulation, risk, risk-based approach
Authors Ljupcho Grozdanovski and Jérôme De Cooman
AbstractAuthor's information

    In the spirit of the European Commission’s (EC) risk-based approach to artificial intelligence (AI), the AI Act (COM(2021) 206 final) contains a four-level taxonomy of AI-related risks, ranging from non-high to unacceptable. For so-called high-risk AI, it sets out a priori technical standards, the observance of which is meant to prevent the occurrence of various types of harm. However, based on a quantitative/qualitative analysis of the results from two public consultations conducted by the EC, this study shows that the views gathered by the EC are not reflected in the AI Act’s provisions. Although in ‘standard’ EU risk regulation, the objective of attaining a desired level of protection can justify a regulatory address, evidence remains required, for the purpose of avoiding risk misrepresentations. Bearing in mind the requirement for evidence-based policy, expressed in the 2015 Better Regulation Agenda, this study argues that the AI Act, as it currently stands, is not based on the evidence gathered and analysed by the EC, but that a pre-existing policy strategy on AI seems to primarily – if not, exclusively – constitute the grounds on which the EC based the regulatory framework which took shape in the AI Act.

Ljupcho Grozdanovski
Ljupcho Grozdanovski is Maître de conférences (UNantes/ULiège).

Jérôme De Cooman
Jérôme De Cooman is a Ph.D. Student and Research Assistant, University of Liege (ULiege) – Junior Researcher, Liege Competition and Innovation Institute (LCII).

Assessing the Adequacy of Existing Multilateral Rules Regulating E-commerce

Lessons from EU Law

Keywords e-commerce, WTO, EU, digitalization, development
Authors Martin Luther Munu
AbstractAuthor's information

    This article assesses the multilateral rules regulating e-commerce to identify their adequacies to provide the issues the European Union (EU) needs to consider as a player in World Trade Organization (WTO) e-commerce negotiations. The analysis uses six factors: facilitating imports and export, addressing tariffs as a form of government revenue, attracting investment, preserving policy space for digital industrialization, providing development assistance, and providing for different rights and obligations according to development levels. While existing multilateral rules have relevant provisions for regulating e-commerce, there are several limitations. The existing multilateral rules were designed to regulate broader issues, which ignore the new issues brought by digitalization. The EU Single Market, proposals for the digital services tax and the New Deal for Consumers provide important lessons that can help in shaping e-commerce rules at the WTO.

Martin Luther Munu
Martin Luther Munu is a PhD Candidate, Institute for Globalisation and International Regulation (IGIR); Faculty of Law, Maastricht University. Email: m.munu@maastrichtuniversity.nl; munumartinl@yahoo.com.

The Use of Evidence in Evidence-Based Legislation

A Reflection

Keywords European Union, evidence, legislation, policy-making
Authors Sebastiaan Princen
AbstractAuthor's information

    This article reflects on the contributions to the Special Issue on evidence-based legislation. It argues that both normative questions about how evidence should be used and factual questions about how evidence actually is used in legislation require a reflection on the nature of ‘evidence’ and its role in the crafting and application of legislation. Based on the understanding that the answers to these questions are intimately linked with the ideas, values and interests that underpin legislation, the article explores three specific issues: the burden of evidence in legislation and lawmaking (who needs to produce evidence about what), the criteria for determining what counts as ‘good’ evidence, and the various purposes for which evidence is used in legislation and legislative processes. Reflecting on these issues may help to reach a more balanced and nuanced view on the role of evidence in evidence-based legislation and the ways in which the law and legal analysis can facilitate the fruitful use of evidence.

Sebastiaan Princen
Sebastiaan Princen, Associate Professor, Faculty of Law, Economics and Governance, School of Governance, Utrecht University, Utrecht, The Netherlands.