EJRR 1/2015



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Issue 1/2015

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Alberto Alemanno

Editorial
European Journal of Risk Regulation 1/2015: pp. 1-2
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The EJRR hosts in its first issue of 2015 a timely symposium devoted to one of the most relevant – yet one of the least studied – fixtures of European policymaking: policy evaluation. The EU's turn towards evidence-based policymaking has been accompanied by an attempt to instill an “evaluation culture” into both its institutionalmachinery and public civil servants. Yet, as highlighted by this Special Issue, the study of this emerging phenomenon has remained largely concealed by the gap existing between the ex ante evaluation literature and the ex post evaluation scholarship in the EU.

Stijn Smismans

Opening Editorial
European Journal of Risk Regulation 1/2015: pp. 3-5
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Evaluation may seem a technical topic of interest to only a small academic research community, while exercised by a larger, practitioners’ community of consultancies specialising in financial auditing or in project and programme evaluations. However, as evaluation has risen centre-stage on the European Commission’s Smart Regulation agenda, it has become a key topic of regulatory policy, raising important governance and institutional questions beyond the field of expenditure programmes.

Stijn Smismans

Policy Evaluation in the EU: The Challenges of Linking Ex Ante and Ex Post Appraisal
European Journal of Risk Regulation 1/2015: pp. 6-26 [Article]
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The EU’s new approach to policy evaluation is characterised by a focus on closing the policy cycle (linking ex ante and ex post appraisal) and by applying evaluation to all types of policy intervention, whether expenditure or regulatory policy. This article analyses the main features and challenges of this new approach. It first studies the conceptual and interdisciplinary challenge of such an encompassing approach to evaluation. It then assesses the new approach in the light of four key objectives of ex ante and ex post appraisal; ensuring evidence and learning; accountability, transparency and participation; policy coherence; and reducing the regulatory burden.

Claire A. Dunlop and Claudio M. Radaelli

Impact Assessment in the European Union: Lessons from a Research Project
European Journal of Risk Regulation 1/2015: pp. 27-34 [Article]
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In this article, we present some major lessons drawn from a recently completed research project. Our research dealt with ex ante evaluation, mainly impact assessment (IA).We shed new light on research questions about the control of bureaucracy, the role of IA in decisionmaking, economics and policy learning, and the narrative dimension of appraisal.We identify how our findings stand in relation to conventional arguments about these issues, and reflect on their normative implications. We finally reason on the possible extensions of our arguments to the wider field of policy evaluation, connecting IA and ex post evaluation.

Steven Højlund

Evaluation in the European Commission
European Journal of Risk Regulation 1/2015: pp. 35-46 [Article]
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For Accountability or Learning?

The article accounts for the development of the European Commission's evaluation system. The article shows how internal and external developments shape an evaluation system aiming for both accountability and policy learning. In 58 interviews, several justifications for the evaluation system emerge, including four types of accountability as well as an evaluation system constructed to facilitate learning from past experience. In the system's commencement, financial and legal accountability overshadow the focus on policy learning that was perceived to be in contradiction with the two former. However, the article also demonstrates that accountability and policy learning are not necessarily opposed to each other.

Lut Mergaert and Rachel Minto

Ex Ante and Ex Post Evaluations: Two Sides of the Same Coin?
European Journal of Risk Regulation 1/2015: pp. 47-56 [Article]
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The Case of Gender Mainstreaming in EU Research Policy

This article engages with two themes of contemporary EU governance: the role of evaluations within an effective and coherent policy-making process and the EU’s constitutionalised commitment to promoting gender equality in all its activities (Article 8 TFEU). It focuses on the interface between ex ante and ex post evaluation and the contribution of evaluations to policy learning, with particular attention to the promotion of gender equality. A case study approach is followed, with EU research policy as the object of analysis.

Emanuela Bozzini and Jo Hunt

Bringing Evaluation into the Policy Cycle
European Journal of Risk Regulation 1/2015: pp. 57-67 [Article]
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CAP Cross Compliance and the Defining and Re-defining of Objectives and Indicators

This contribution seeks to overcome the isolation of evaluation studies fromthe broader field of public policy analysis. Using as a case study the hybrid regulatory tool of cross compliance under the Common Agricultural Policy, the article charts the ongoing incorporation of ex ante and ex post evaluation processes over a ten year period, during which three major legislative reforms were undertaken. Anchoring its approach in the public policy work of Kingdon, the article emphasises the significance of the plurality of actors involved in the evaluation processes, the importance of timing, as well as the challenge to models of policy processes based on assumptions of rational linearity. In particular, the article demonstrates how the dis-ordering which may be observed in the stages of the policy process may equally be seen in the stages of policy appraisal. A particular focus is placed on the way in which objectives and indicators are defined and re-defined over time. The case study demonstrates that through policy appraisal, policy makers may learn what is, and what is not capable of being measured, which feeds back into the re-setting of objectives.

Lorna Schrefler, Giacomo Luchetta and Felice Simonelli

A New Tool in the Box?
European Journal of Risk Regulation 1/2015: pp. 68-78 [Article]
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The Cumulated Cost Assessment

The year 2013 has witnessed a new entry in the EU “better regulation” toolbox: the Cumulated Cost Assessment (CCA). The CCA is set to answer an apparently simple question: what is the cumulative cost imposed by a selection of EU rules and policies on a given economic sector? In this contribution we present the CCAmethodology and its building blocks, as well as the results of the first two empirical applications of this tool. More importantly, we elaborate on two key features that make the CCA a valuable addition to the better regulation toolbox: it creates a methodological bridge between the policy and competitiveness assessment instruments, and it clarifies empirically how a wide array of policies interact with one another when and after they are actually implemented, an element that is often a weak link in policy-appraisal. We conclude with some remarks on how the CCA opens the avenue for a set of challenging and interesting methodological and policy considerations.

Paul Stephenson

Reconciling Audit and Evaluation?
European Journal of Risk Regulation 1/2015: pp. 79-89 [Article]
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The Shift to Performance and Effectiveness at the European Court of Auditors

In the last twenty years, the European Court of Auditors has placed increasing importance on the production of “special reports” examining the economy, efficiency and effectiveness of EU spending (the three “E”s). This institutional focus on performance audit, alongside traditional financial and compliance audit, has occurred at a time when the European Union is increasingly evaluating its own policies and programmes, under political pressure to demonstrate their added value. With performance audit, the EU’s external auditors make value judgements on what was achieved through the EU budget, arguably bringing a greater political dimension to the Court as it works to deliver conclusions and recommendations meant to assist the legislature (European Parliament) in carrying out its scrutiny role and the executive (European Commission) in shaping better future policy. This raises questions about how financial accountability is interpreted, and whether it depends on the quality of audit reports or on the forums to which they are delivered, and subsequently, how they act upon them. This article analyses the factors that explain the increased use of special reports by the Court, questioning if they resemble evaluation studies. It examines their focus and impact, as well as the institutional challenges implicit in performance audit. I. Introduction As the external auditor of the EU, in theory the Court works in cooperation with other multi-level institutions, committees and individual experts, including national audit offices at member state level (“supreme audit institutions”). As the “financial conscience” of the EU, the Court contributes to “delivering” accountability in the EU. The Court claims to “add

Melanie Smith

Evaluation and the Salience of Infringement Data
European Journal of Risk Regulation 1/2015: pp. 90-100 [Article]
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The infringement process contained in Article 258 TFEU requires the Commission, as guardian of the treaties, to monitor the performance of member states in relation to the implementation and application of EU norms. As the Commission carries out this duty it amasses enormous amounts of data on the realisation of policy objectives through its discovery of (non) implementation of EU norms and the administrative operation of its ‘compliance promoting tools’. This article explores the Commission’s duty as guardian of the treaties through the lens of smart regulation and examines the potential for infringement data, and the infringement process more widely, to play a contributory role in executing meaningful evaluation in the policy cycle. The article will explore the extent to which the Commission has included infringement data as part of its policy cycle and in particular the evaluation process. It considers the multiple dimensions of accountability and institutional learning associated with evaluations and how these might be supported by the infringement mechanism. It argues that the infringement process and evaluations can be considered symbiotic with each process contributing to the accountability and institutional learning of the other.

Anne Meuwese, Michiel Scheltema and Lynn van der Velden

The OECD Framework for Regulatory Policy Evaluation: An Initial Assessment
European Journal of Risk Regulation 1/2015: pp. 101-110 [Article]
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Designing a framework for evaluating laws, rules and policies within any given legal system is a daunting task.Comprehensive schemes risk ending up asmere paper realities because of the demands they place on evaluators aswell as on the addressees of evaluations. More realistic evaluation frameworks on the other hand may not yield many results.

Christoph Klika

Risk and the Precautionary Principle in the Implementation of REACH
European Journal of Risk Regulation 1/2015: pp. 111-120 [Article]
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The Inclusion of Substances of Very High Concern in the Candidate List

The adoption of the REACH regulation, setting out to reformchemicals policy of the European Union (EU), was accompanied by intense controversy over the role of the precautionary principle. Analysing decision making on so called Substances of Very High Concern (SVHCs), this article demonstrates that despite legal underpinning, precaution plays a limited role in the implementation of the REACH authorisation procedure. Due to ambiguous legislative provisions, the controversiesof the legislativeprocessare carriedover tothe implementationprocess.

Nicola Lucchi

Internet-Based Communication: Rights, Risks and Opportunities
European Journal of Risk Regulation 1/2015: pp. 121-128 [Article]
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The aim of this paper is to recognize and discuss the inherent risks associated with Internet regulation and control over digital content. The key point of this analysis is that Internet regulation can present human rights risks. In particular, the paper examines how restrictions over Internet content are posing regulatory issues directly related to the growing importance of an equitable access to digital information. It also considers the relevance and impact of computer-mediated communication, its potential on democratization of freedom of expression and the problem of conflicting rights. Drawing upon comparative and case study material, the paper finally discusses and investigates the potential risks and vulnerabilities related to communication technologies focusing on legislative reforms in the area of digital communications and their implications for fundamental freedoms. I. Introduction The Internet has become an essential tool for various life-related purposes and it is an instrument necessary for the proper enjoyment of a series of rights, including the right to access knowledge and information and the right to communicate. This new paradigm also implies that all people should have access to the Internet at affordable conditions and any restrictions should be strictly limited and proportionate. As a consequence, any regulatory and policymeasures which affect the Internet and the content that flows over it should be consistent with basic rights and liberties of human beings. Considering this scenario, the paper intends to explore the role of Internet access in enabling individual’s rights and freedoms. In particular, it examines how Internet content governance is posing provocative and fascinating regulatory issues directly related with the growing possibilities offered by the computer- mediated communication. The possible answers to these issues are at the center of the ongoing debate concerning

Ignacio Carreño and Anna Gladshtein

Food: Ukraine Adopts New Food Safety Legislation in Order to Align its Legal Framework with that of the EU
European Journal of Risk Regulation 1/2015: pp. 129-133 [Report]
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As Ukraine’s development and economy continue to grow, theGovernment ofUkraine has recognised that one important issue that it should prioritise is food safety. On 15 September 2014, Ukraine’s President Petro Poroshenko signed LawNo. 1602 VII on Amendments to Certain Legislative Acts of Ukraine related to Food Products (hereinafter, Law No. 1602 VII),1 which had previously been adopted by the Rada (i.e., Ukraine’s Parliament).

Emanuela Gambini

Intellectual Property: No Patents on Seeds Files an Opposition against Monsanto’s Patent EP 2 134 870 B1 Covering the Selection of Soybean Plants and Seeds
European Journal of Risk Regulation 1/2015: pp. 134-140 [Report]
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On 25th November, 2014, the coalition “No Patents on Seeds” filed an opposition against the European patent EP 2 134 870 B1, held by the U.S. Company Monsanto Technology. The patent, granted on 26th February, 2014, by the European Patent Office, covers “utility of SNP [single nucleotide polimorfism] markers associated with major soybean plant maturity and growth habit genomic regions” and includes “methods for screening plants and seeds from the genus Glycine withmarkers associated with genomic regions that are related to the plant maturity and growth habit of Glycine plants”.

“No Patents on Seeds” claims that the patent should be completely revoked, as it falls within the exclusion of essentially biological processes for the production of plants from patentability under art. 53(b) of the European Patent Convention (EPC2000) and is not a patentable invention according to art. 52(2)(a) EPC. This case note gives an overview of the opposition and discusses its implications.

Jack Bobo and Sweta Chakraborty

Risk Communication: Pink Slime, Raw Milk and the Tweetification of Risk Jack
European Journal of Risk Regulation 1/2015: pp. 141-144 [Report]
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In a hot, flat, hyper-connected world, public perception of risk may determine if agriculture will save the planet by 2050 or destroy it. Science and technology options may hold the key to solving the situation, but, if media experience with “pink slime” and raw milk are any indication, society may be in for a bumpy ride. This article will examine global trends in food and agriculture, the interplay between food safety and public perceptions of risk, and the role of risk communication in addressing public perceptions.

Katharina Ó Cathaoir

On Obesity as a Disability
European Journal of Risk Regulation 1/2015: pp. 145-150 [Case Note]
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Case C-354/13, Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) [2014] (not yet reported)

There is no general principle under European Union law prohibiting discrimination on the basis of obesity in regard to employment and occupation. Obesity alone is not a disability but can constitute a disability where it is accompanied by a limitation resulting from long term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the individual in professional life on an equal basis with other workers (official headnote). In December 2014, the Court of Justice of the European Union (CJEU) issued a preliminary ruling addressing, firstly, whether obesity is a protected ground of non-discrimination, and, secondly, whether obesity can amount to a disability. This piece begins with an introduction to the topic of obesity, followed by the facts of the case, the CJEU’s judgment and a comment on the decision.

Walther Michl

Mere Retailers May be Penalised for Salmonella Contaminations in Fresh Poultry
European Journal of Risk Regulation 1/2015: pp. 151-154 [Case Note]
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Case C-443/13, Ute Reindl v Bezirkshauptmannschaft Innsbruck, ECLI:EU:2014:2370

1. Fresh poultry must be free from salmonella contaminations at all the stages of distribution including the retail stage. 2. National law may impose a penalty on a food business operator which is active only at the distribution stage for placing salmonella-contaminated foodstuff on the market. It is for the national courts to determine whether such a penalty observes the principle of proportionality as laid down in Article 17 para. 2 of Regulation No 178/2002.

Lucas Bergkamp and Nicolas Herbatschek

The “Once an Article, Always an Article” Approach
European Journal of Risk Regulation 1/2015: pp. 155-164 [Case Note]
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Reflections on the Advocate General’s Opinion on the Concept of “Articles” Under REACH

OPINIONOF ADVOCATEGENERALKOKOTT delivered on 12 February 2015 in Case C-106/14, Fédération des entreprises du commerce et de la distribution (FCD) and Fédération des magasins de bricolage et de l’aménagement de la maison (FMB) v Ministre de l’écologie, du développement durable et de lʼénergie.

Anna Gergely and Blandine Gayral

The European Union REACH Regulation for Chemicals – Law and Practice, by Lucas Bergkamp (ed.), OUP
European Journal of Risk Regulation 1/2015: pp. 165-166 [Book Review]
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As highlighted by Günter Verheugen in its foreword to the book, REACH is an extremely ambitious piece of legislation,which attempted to overcome the perceived inherent conflict between the protection of the environment as well as economic and public interests.

Andrew Webster

Vulnerability in Technological Cultures: New Directions in Research and Governance, by Anique Hommels, Jessica Mesman and Wiebe E Bijker (eds.), MIT Press
European Journal of Risk Regulation 1/2015: pp. 166-168 [Book Review]
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At a time when the Ebola epidemic has seen the deaths of thousands living in poor communities in West Africa, and when a rash of political and economic instabilities in the Middle East have brought a different form of death to thousands of others, social and personal risks and vulnerabilities loomlarge

Thomas Wilhelmsson

Towards a European Legal Culture, by Geneviève Helleringer and Kai Purnhagen (eds.), C.H. Beck and Hart
European Journal of Risk Regulation 1/2015: pp. 168-170 [Book Review]
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‘Legal culture’ has been a highly topical issue in European legal discourse during the last decade(s). Numerous books and articles have been published offering the interested a web of perspectives on the past, present and future of European legal culture.


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