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Meta-rules and constitutional law: 'co-regulating' legislative processes in Europe?

Final Report Summary - METARULES (Meta-rules and constitutional law: 'co-regulating' legislative processes in Europe?)

Are our regulators regulated? Traditionally most regulation took place in the context of the nation state with constitutional law as the main mechanism for controlling and legitimizing regulatory power. Nowadays the locus of regulation has shifted to transnational and/or private forum and traditional constitutional control solutions no longer suffice. This research project has investigated what has come in its place. The project has mapped the 'meta-rules' which emerge in regulatory reform dialogues and which are usually characterized by a gradual recognition of their need by actors who were never mandated to call into being legal - let alone constitutional - norms. Different actors are involved in shaping horizontal regulatory policy, often through transnational deliberations; these deliberations foster various - and not necessary legal - rationales and participants acquire a particular understanding of norms relating to lawmaking and their bindingness. One problem is that such shifts in horizontal regulatory policies are linked to constitutional structures and values, but they often take place without much legal awareness. The 'multi-level' nature of contemporary rule-making processes has paradoxically triggered horizontal cooperation between legislators and regulatory authorities, for instance through 'transnational regulatory networks'. The contribution that this project has made lies in an 'input-oriented' analysis of law, in a field where the majority of research is 'output-oriented'. Specifically, the project has clarified the workings of the grey and under-researched area that consists of seemingly technical rules that have been introduced to improve legislative processes, guidance on lawmaking and principles of good regulation. It is now clear that some of these norms effectively influence legislative processes. Meta-rules overlap with constitutional norms in terms of subject matter (e.g. 'who gets access to the legislative process'), but they do not follow the usual hierarchy of norms. In the European Union, a large part of these transnational deliberations on meta-rules is happening in the context of the so-called 'Better Regulation' programme. Mandatory impact assessment, systematic simplification, often aided by 'administrative burden reduction targets', and enhanced rules for consultation are just a few examples of the topics covered by networks such as the informal transnational body often referred to as 'Directors of Better Regulation' (DBR). The research indicates that many 'users' of meta-rules overestimate the extent to which they are mandatory and underestimate the extent to which they are contested from a legal point of view. In some cases a meta-rule is merely symbolic (e.g. 'self-regulation should be preferred to legislation'), but in other instances the 'strangeness' of the norm or standard at hand is no impediment to it exercising a kind of 'soft power' (e.g. the success of the administrative burden targets in most member states of the European Union). An example of a 'successful' meta-rule (in the sense that it has established itself against constitutional odds) is the pluralistic, open style of consultation that has now become fashionable in various quarters administrations across Europe. Yet, once a a consultation has been held, the administrations - most of them used to a more neo-corporatist structure - tend to struggle with the question of how to treat the results. An open legal question, that was put forward at the final workshop for the project, is to what extent can (informal) meta-rules trigger (legally relevant) legitimate expectations? The project has also found that cost-benefit analysis has not rooted as much among European lawmakers as some have predicted. The potential users of this norm are unwilling to draw the institutional consequences from 'real' cost-benefit analysis and focus on cost-only tests instead. Website: