Emboldened by the Spitzenkandidaten process, the new European Commission emerges as the most political yet. The Commission asks EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. The Better Regulation Package translates this political commitment into an actionable approach assuring EU citizens that the Commission will remain ‘big on big things, small on small things’. To deliver on this promise, the Commission extends the Impact Assessment system, renews its consultation procedures and adds a few institutional mechanisms so as to enhance its ‘ability to deliver’ throughout the policy cycle. But in order to do so the Commission needs to bind – and somehow control – the European Parliament and the Council, on the one hand, and the Member States, on the other, in relation to their commitment to openness, participation and evidence-based policymaking. While legitimate, this attempt raises serious doubts about the compatibility of this reform with the principle of separation of powers and, in particular, that of institutional balance. A closer look at the Better Regulation Package reveals an entirely new understanding of the Commission's own prerogatives and the way it intends to exercise its legislative and regulatory powers. And this in spite of the apparent continuity between the new and old Better Regulation initiatives and the instruments it had chosen to attain the declared objectives. With a view to lay out a future research agenda on EU Better Regulation, this article identifies the most immediate questions raised by the publication of the Package and makes a first timid attempt at addressing some of them. It aims at determining how much better, if any, is the new Better Regulation Package. It does so by discussing, first, the major novelties enacted by the Commission within its own Better Regulation system and, second, those proposed in the framework of the IIA on Better Regulation.

Two inter–related themes provide the architecture of this better regulation package: the political tone of the initiative and the responsibility/blame game. The tone is in part the consequence of the political context surrounding regulatory policy in the EU. Whilst in the past regulatory quality standards interested only a few top civil servants and elected politicians, today there is much more political interest – and contestation, as shown by the new better regulation watchdog created by non-governmental organizations and their response to the package. The very fact that in May 2015 there was media interest in the leaked version of the chapeau communication is a novelty. Why so much attention? Among others, the rhetoric of the past few years on making the EU acquis fit for purpose and less burdensome, coupled with a growing recognition by stakeholders that impact assessment and policy evaluation are “here to stay” have turned better regulation into an additional window of opportunity for those wishing to influence EU policy–making.

So none of the wild rumours came true in the end. Those expecting representatives of Parliament and Council on the Regulatory Scrutiny Board, or seats for ‘main stakeholders’ were likely either disappointed or relieved when the European Commission's reinforced Better Regulation package was published on 19 May 2015. As it turns out the transformation of the Impact Assessment Board, which had been in the air for a while is a partial one only, for the moment at least. Indeed, the former Impact Assessment Board got a stronger mandate and a broader reach, apart from a new name, yet it retains very much the character of an ‘in–house’ body. The long-awaited ‘external members’ of the Regulatory Scrutiny Board will be recruited as temporary agents, turning ‘independence’ to some extent into an issue of labour law.

The European Commission's (Commission) Better Regulation Strategy (BRS) is the major guideline for the Commission to assess legislation. It draws on regulatory impact assessment (RIA) via cost–benefit analysis (CBA), expert advice, and simplification in EU law–making. Yet, the practice of RIA by the Commission as well as in EU member states, while unavoidably incomplete, has shown avoidable shortcomings. The Commission's New Better Regulation Strategy of 2015 (NBRS) contains language that appears to address these shortcomings. If pursued consequentially, it would require an approach that resembles what has been called responsive behavioural regulation. At the same time, global initiatives from inter alia the World Bank emerge to include behavioural insights into policy analysis in the form of responsive regulation. This piece assesses potential models of RIA that can help to articulate the behavioural assumptions which are implied by NBRS as enshrined in the policy document “Better regulation for better results”. The methodological implications of the NBRS require a significant departure from the reliance on classical CBA, which is characteristic for the previous “Better Regulation” documents submitted by the Commission and which we term Old Better Regulation Strategy (OBRS).

How can one not applaud the renewed better regulation agenda launched by the First Vice President Timmermans? Finally this fuzzy reform field is in the hands of a strong executive politician with the authority to make substantial progress on an agenda that always appeared good on paper, but somehow did not deliver against the expectations it defined for itself. ‘Better regulation for better results’ not only promises tangible results, but it combines this with the ambition of ‘changing how we work at the European level’. This ambition should provide us – as citizens, stakeholders and scholars – with an opportunity to essentially present a scorecard concerning these results in the near future. And, indeed, experts and other stakeholders in the better regulation game do welcome the initiative.

My view on this agenda is that the promise of ‘better results’ will be hard to deliver, whereas the ambition of ‘changing how we work’ is more likely to materialize in one way or another.

At first sight, the new “better regulation package” probably appears as one of the most ambitious and comprehensive set of measures on the quality of EU regulation developed in recent years. It introduces relevant innovations as far as both better regulation tools(impact assessment-IA, ex post evaluation, consultation) and governance (the Regulatory Scrutiny Board-RSB, the REFIT Platform and the proposal on the new Inter-institutional agreement on Better Lawmaking-IIA)are concerned. Moreover, the package is a clear demonstration of the Commission's political commitment towards the relaunch of the smart regulation agenda, already proved by its inclusion within the scope of the mandate of the First Vice President, Mr. Timmermans.

Nonetheless, ambition and wideness are not the only relevant criteria to judge the package. It could indeed be assessed also from a different perspective, i.e. by analysing the possible effects it could produce and the incentives it could provide for some key players: EU institutions, Member States (MS) and stakeholders.

On the face of it, ‘better regulation’ sounds like a concept that no one could object to. But in contrast to past attempts to cut red tape for business and thus reduce unnecessary bureaucracy, the objective of the Juncker Commission's Better Regulation Agenda is to reduce “regulatory burden”.

The package, adopted on May 9th 2015, foresees the establishment of an impressive apparatus and toolbox for implementing the Agenda. Existing structures and procedures, such as the Regulatory Scrutiny Board and the Impact Assessment Guidelines, are being modified, and new elements such as the two REFIT Platforms, one for stakeholders and one for Member States, and the new Interinstitutional Agreement on better law-making, will be introduced.

The Agenda raises many questions and concerns From the perspective of a public interest organisation such as The European Consumer Organisation (BEUC). Several aspects of this new institutional and procedural architecture suggest that it is not designed to provide society–wide benefits by generating better regulation for all. Rhetoric about the need to reduce costs is the dominant theme throughout the entire package, framed by the ‘jobs and growth’ narrative.

The Commission's new Better Regulation package represents a step forward in the European Union’s decade–long journey to bringing coherence and rationality to its legislative and regulatory process. But as the Communication on the package itself suggests, the journey is far from over.

The Communication consistently emphasizes the key aspects of good regulation: quality over quantity; taking time to get proposals right; evidence–based decision making; open and continuous consultation to gather evidence from all stakeholders; rigorous impact assessments and cost–benefit analysis; applying these tools to regulatory measures as well as legislation; and implementing a robust ex–post evaluation program. It is important as well that the Secretariat General published unified and detailed guidance for Commission officials on how each step of the regulatory process should work, with a “tool–box” to elaborate further on these steps.

All of this is good. Yet in some areas, the Commission misses opportunities to go farther down the good governance road, and in others the guidance needs to be made much more explicit.

In May of 2015, the European Commission released a package outlining the vision for its Better Regulation initiative, a program aimed at improving outcomes of European Union (EU) regulation. The move represents a step forward for regulatory reform in the EU, and signals a potential shift in world leadership roles among countries promoting evidence-based policy. The United States (US), once at the forefront of regulatory science and analysis, may now be lagging behind. If Better Regulation is implemented as its ambitious designers envision, this could signal a new role for the EU in advancing 21st century policymaking.

Better Regulation seeks to improve the EU regulatory process in several ways. The initiative allows for more meaningful citizen and stakeholder participation at all stages of the policymaking process; it seeks to institutionalize the use of economic analysis throughout the lifecycle of a policy; and it sets up a process for reviewing the existing stock of regulations to ensure old rules do not become excessively burdensome or obsolete. All this is done in a manner intended to inform legislators as they periodically review funding levels for new and existing programs.

The EC-Seal Products case raises a number of interesting issues for scholars researching in the broad area of risk regulation. This symposium addresses a selection of them through innovative, analytical contributions whose goals are to test central assumptions and question the logic of the findings and to bring fresh solutions to problems faced by the Appellate Body and the panel. In keeping with this analytical focus, this introduction to the symposium will not just present a summary of the key legal findings. Instead, it attempts to draw some further conclusions from the different contributions, to place the contributions in their broader legal context and to make connections between aspects (not) decided in Seals and scholarship on risk regulation, more generally.

In EC–Seal Products, the WTO Appellate Body (AB) issued a(nother) controversial report. This paper argues that the analysis followed by the AB is wrong. To prove this point, we ask two questions. Would the AB have concluded the same way if it had constructed the EU measure as two separate measures and not one? Did the AB adequately control for the regulatory intent of the EU, indeed the quintessential element for deciding whether the EU was indeed pursuing a societal preference of no commercial character? We responded in the negative to both questions.

One important issue arising from EC–Seal Products is what constitutes a technical regulation in the TBT Agreement. This article argues that the Appellate Body's analytical approach to this issue has led to an arbitrary conclusion in EC–Seal Products. The article further examines to what extent PPMs, especially Non–product–related PPMs, are covered by the TBT Agreement. The article concludes that an important question to be answered is what special characteristics of a technical regulation distinguish it from other regulations and make it subject to more detailed obligations in the TBT Agreement.

GATT Article III:4 aims at equal treatment in respect of competitive opportunities of imports and competing domestic products by preventing protectionism. A key question is whether regulations with heavier burdens on imported products than on domestic products and a valid regulatory purpose are consistent with Article III:4. Inquiry into regulatory purpose under Article III:4 would allow by-passing Article XX whose list of regulatory objectives is a closed one and which puts the burden of proof on the defending WTO member. In EC-Seal Products, the Appellate Body has rejected any role for the regulatory purpose inquiry under Article III:4. This article shows why a purely empirical definition of likeness and less favourable treatment as disparate impact cannot logically lead to a finding of a violation of Article III:4. It then argues that regulatory purpose continues to play a role under Article III:4 because of the centrality of the notion of competition. It proposes to frame that competition as perfect competition. It shows that the adoption of perfect competition as the evaluative benchmark for all of Article III:4 makes better legal sense than starting from imperfect competition for the likeness analysis and perfect competition for the less favourable treatment standard, as is proposed in the literature. It also shows that even in case where imperfect competition is used as the sole benchmark for both parts of Article III:4, an assessment of how regulation interacts with competition continues to play some role.

The Appellate Body report in EC-Seal Products is a landmark decision in several respects: for its recognition that animal welfare is a matter of public morality that may justify a trade ban in response to cruelty; for the AB's new–found clarity with respect to the irrelevance of regulatory purpose in the determination of “treatment no less favourable” under the National Treatment and MFN provisions of the GATT; for its suggestion that trade measures not defined by product–related distinctions but other criteria are not covered by the TBT Agreement; and for its partial acknowledgement that a Member may maintain a measure consistent with Article XX even if the measure represents a complex trade–off between a main purpose and other purposes that may limit the extent the main purpose can be furthered. But the decision arguably raises as many questions as it answers, and some have already complained about the rather sphinx–like quality of the judgment.

This section aims to update readers on decisions related to marketing products of modern biotechnology (e.g., GMOs, animal clones) at EU level and on national measures concerning their production. Special attention is devoted to problems of competence between Member States and the EU in regulating biotechnology issues; the institutional dynamics of decision making regarding products derived frommodern biotechnology; the relationship between the EFSA and the EU institutions on green biotech-related issues; the evolution of EU regulatory framework and of national attitudes towards the risks and benefits of biotechnology derived products and their production. This section will also delve into the interaction between the EU legislation and WTO law regarding advances in the application of biotechnology within the agri–food value chain.

The current application of the hazardous substances provisions of Article 16 of the EU Water Framework Directive are in fundamental conflict with a number of other Directives and Regulations controlling the use of those hazardous substances that are currently essential to the wellbeing of the Community and its citizens. There is a simple solution to this conflict although reaching political agreement in such a polarised area may prove to be impossible.

This section aims at updating readers on the latest developments of risk-related aspects of food law at the EU level, giving information on legislation and case law on various matters, such as food safety, new diseases, animal health and welfare and food labelling.

On 26 February 2014, the German Federal Court of Justice (Bundesgerichtshof, hereinafter, BGH) held, in the case Hipp v. Milupa, that trademarks can be health claims under Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (hereinafter the Nutrition and Health Claims Regulation, NHCR). The BGH, therefore, confirmed the broad interpretation of the term ‘health claim’ and remanded the case back to the Frankfurt/Main Higher Regional Court (hereinafter, OLG Frankfurt). Products bearing trademarks that existed before 1 January 2005 and that do not comply with the NHCR may continue to be marketed until 19 January 2022. On 15 January 2015, the OLG Frankfurt handed down a new judgment in the proceedings between Hipp and Milupa, relating to the question as to whether a trademark had to be used with the identical and unchanged food product before January 2005 to fall under the transitional rule, or whether changes to the product were permissible.

This section is devoted to giving readers an inside view of the crossing point between intellectual property (IP) law and risk regulation. In addition to updating readers on the latest developments in IP law and policies in technological fields (including chemicals, pharmaceuticals, biotechnology, agriculture and foodstuffs), the section aims at verifying whether such laws and policies really stimulate scientific and technical progress and are capable of minimising the risks posed by on-going industrial developments to individuals’ health and safety, inter alia.