27th Sep 2023


The secretive EU body that likes to say 'no'

  • Even EU insiders are often unaware of the workings of the Regulatory Scrutiny Board (Photo: Kristina Flour)
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Not every scandal results in a public outcry. Some scandals remain in the dark. Without public pressure for positive change, problematic cases persist — for too long.

The European Commission's Regulatory Scrutiny Board (RSB) is such a case. Although the RSB, and the wider so-called 'Better Regulation' agenda of which it is part, have been heavily criticised by NGOs from the outset, the general public has barely noticed their problematic influence on EU legislation. Even EU insiders are often unaware of the workings of the board. But take a closer look at the RSB and alarm bells start ringing.

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The main task of the RSB is simple: it assesses draft impact assessments of upcoming EU legislative proposals as prepared by the commission. If the RSB's opinion on the impact assessment is negative, the legislative proposal cannot move forward.

The assessment must then be substantially revised and resubmitted for a review. If the RSB's second opinion is negative too, it get's tough. Only the vice-president for interinstitutional relations and foresight can then submit the legislative initiative to the College of Commissioners to decide whether or not to proceed with the proposal.

This de facto veto power is only one aspect that gives the RSB the leverage to effectively delay or even water-down legislation. And it mostly hits legislation tackling the climate crisis, protecting the environment, or other rules aimed at protecting Europe's 448 million citizens.

The unelected RSB undermines the work of EU Parliament and the Council: it lacks democratic legitimacy. Moreover the RSB has a very early say on the likely direction, scope, and depth of proposed new EU rules before the parliament sees the final proposal from the commission.

Lack of transparency

With the significant influence it can have on EU legislation, it is disturbing that the RSB is allowed to operate largely in secret. EU citizens and even MEPs have no insight into how the RSB reaches its decisions, because the RSB's opinions are only disclosed once the final legislative proposal is published.

It is especially the negative opinions are of interest to legislators. Yet the European Parliament was recently denied access to the documents on the RSB's negative opinion on the right-to-repair initiative.

In order for journalists and citizens to be able to follow the work of the RSB, we need full transparency and accountability. This includes the real-time publication of the RSB's decisions, access to minutes of its internal meetings, full information on the RSB's lobbying contacts and a publication of the declarations of interests of the members of the RSB. The refusal to release these is currently being investigated by the Ombudsman.

Evaluation criteria favours business interests

The root of the problem is the so-called 'better regulation agenda'. Its job is to ensure that new EU rules are as narrow as possible and don't hurt business profits too hard.

Although the evaluation toolbox includes criteria for social and environmental impacts , the RSB's opinions often emphasise economic impacts and costs, as a new study by political scientist Brigitte Pircher and commissioned by LobbyControl and the Chamber of Labour, Vienna confirms. This is a bias within the 'better regulation' agenda, but it also reflects the lack of social and environmental expertise on the RSB — which the European Ombudsman is currently also investigating.

What difference does it make? One example is the Due Diligence Directive for Sustainable Business. The aim of the directive is to oblige companies to take responsibility for environmental or human rights violations throughout their value chain.

The RSB issued two negative opinions on this initiative and delayed it significantly. Also, after several contacts with Danish/Swedish industry, both the number of companies covered by the draft legislation were reduced and the scope in terms of the value chain was limited.

The EU needs to provide answers to the climate crisis, social inequality and corporate power — and for that, EU legislation, and thus the RSB, must take greater account of long-term impacts on society, workers and the environment,

That's why the EU Commission should abolish the RSB's veto power, introduce widespread transparency and scrap the commission's anti-regulation agenda. What we need is a legislative process that truly serves the interests of citizens — not corporations.

Author bio

Felix Duffy is a campaigner at LobbyControl in Germany. Frank Ey works at the Chamber of Labour in Vienna.


The views expressed in this opinion piece are the author's, not those of EUobserver.

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