Towards Smarter EU Tech Rules – Step 2: How to Improve Legislative Scrutiny?
Best practices
- Increase overall transparency of the European Union’s legislative process
- Preserve consistent objectives and principles across different EU laws
- Respect core ‘better regulation’ principles and horizontal goals
Unfortunately, changes made by the European Parliament and the Council of the EU (that is, representatives of the 27 Member States) to proposals for new tech and digital rules initially put forward by the European Commission are still the least scrutinised step of the EU legislative process.
Improving scrutiny of this important phase would drastically improve the overall quality and longevity of EU tech regulation. In this second article of my three-part series on creating more effective EU tech regulation (the first one looked at the drafting), I explore why increasing legislative review is so crucial to crafting robust rules. More checks and balances are clearly needed, so let’s look at best practices to make that happen.
1. Increase overall transparency of the EU legislative process
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Open up all key documents relevant to the various stages of negotiations to full public scrutiny | ❌ Letting the imbalance of information (sharing) between EU institutions and stakeholders lead to an unbalanced outcome |
| ✅ Rely on the knowledge of (external) experts to help solve deadlocks and find realistic solutions | ❌ Proposing solutions that have not been tested in practice |
| ✅ Mandate reviews of new concepts and proposals that depart from the Commission’s original initiative | ❌ Allowing last-minute changes to key parts of new laws |
Right now, the EU legislative process still lacks transparency at key stages, which unfortunately at times also diminishes the quality of legislation. Once an initiative is in the hands of Members of the European Parliament (MEPs) and Member State attachés, very few updates are published, while substantial and fundamental changes are made at this stage.
MEPs’ compromise amendments are never made public, for example, while the Council does not publish any documents. And final negotiations between the EU institutions are even less transparent. Increasingly, during these trilogues, completely new compromises emerge that have never been discussed before.
That is why new concepts should always be subjected to another impact assessment, also when introduced by MEPs, the Council, or last minute during trilogues. If the Commission’s original proposal needs to be based on evidence, so do changes introduced at a later stage.
During the AI Act negotiations, for instance, the Parliament’s EPP Group held meetings with civil society, industry, and academia to seek feedback. When the Act got to the trilogue stage, however, entirely new concepts – such as the two-tiered approach to regulating general-purpose AI – were suddenly introduced at the last moment, without scrutiny.
2. Preserve consistent objectives and principles across different laws
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Listen to advice and consider evidence of stakeholders across the board (i.e. experts, academia, regulators, industry) | ❌ Leaving crucial elements of legislation to be solved during its implementation |
| ✅ Conduct an additional impact assessment when substantial changes are made to a proposal | ❌ Trying to change markets solely to advance a political agenda instead of consumer interests |
| ✅ Carry out a proportionality test of proposed amendments | ❌ Losing sight of the fact that everyone’s end goal is to achieve sound legislation |
The Parliament and Council’s ‘right to amend’ legislation initially proposed by the Commission is a cornerstone of the EU democratic process. Yet, it can be further improved by maximising consistency across different pieces of (related) legislation. That should also include assessing the feasibility of certain measures and the ability of regulators to actually enforce these rules in practice – as already is the case in many EU Member States.
Indeed, the Digital Services Act (DSA) was supposed to have cemented the key principle that online marketplaces should not be treated like their brick-and-mortar equivalents, as they do not handle the actual products sold online. After the DSA’s adoption, however, this decision was challenged through amendments made by MEPs to the General Product Safety Regulation, the revision of the Product Liability Directive, and the Toy Safety Regulation.
And even in the Parliament’s new mandate, which began just last year, proposals continue to emerge that challenge this horizontal principle established by the DSA.
3. Respect core ‘better regulation’ principles and horizontal goals
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Respect the principles that govern horizontal regulation (e.g. the DSA’s ban on general monitoring) to avoid introducing contradictory rules as part of sector-specific legislation | ❌ Reviving concepts rejected in previous negotiations |
| ❌ Duplicating legislation with slight changes | |
| ❌ Creating legislation to help companies or countries |
Several principles are crucial to ensuring that new EU digital regulation is not counterproductive to Europe’s aim of stimulating innovation and digital competitiveness.
First of all, it’s important to design general rules that apply to an entire sector, rather than targeting individual companies. Asymmetric regulation should be avoided, as it only excludes companies in scope from the Single Market, and creates a regulatory glass ceiling that disincentivises growth and success among European start-ups.
No entire category of market players should be exempt from rules; regulations must be designed to apply without discrimination. Most important, at all times the priority should be to respect overarching key principles established by landmark horizontal regulation.
For example, the introduction of a media exemption (i.e. exempting media outlets from online content moderation rules) was already discussed – and subsequently outright rejected – during the DSA negotiations back in 2021. Naturally, one would expect this horizontal regulation to be respected going forward. Fast forward to 2023 and the media exemption was nevertheless adopted as part of the European Media Freedom Act.
The importance of implementation and enforcement
While improving legislative scrutiny is vital, the journey doesn’t end there. The final critical step of improving the EU policy cycle lies in ensuring that new laws are effectively implemented and enforced. Without this, even the smartest legislation can fall short of its potential. Stay tuned for my final piece in this series, where I’ll dive deeper into how we can bridge this crucial gap and make tech EU laws work in practice.
