4. Ex post evaluation

The stock of laws and regulations has grown rapidly in most countries, even more so recently due to new rules being introduced to combat the COVID-19 pandemic. However not all regulations are rigorously assessed when they were originally made – and this is especially the case for those made in haste in response to emergency needs – and even where they have, not all effects can be known with certainty beforehand. Moreover, many external factors influence the attainment of regulatory objectives, demonstrating a need to periodically undertake checks to establish whether rules are working as intended.

The 2012 OECD Recommendation on Regulatory Policy and Governance calls on governments to “[c]onduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost justified, cost effective and consistent, and deliver the intended policy objectives.” (OECD, 2012[1]). In some circumstances, the formal processes of ex post impact analysis may be more effective than ex ante analysis at informing ongoing policy debate. This is likely to be the case for example, if regulations have been developed under pressure to implement a rapid response (OECD, 2018[2]). Ex post evaluations should have a level of symmetry with ex ante impact assessments: through verifying that stated objectives have actually been met, determining whether there have been any unforeseen or unintended consequences, and considering whether alternative approaches could have done better. Reviews that in addition also encompass proposals for change and revisit the original regulatory objective and its ongoing appropriateness or legitimacy are particularly useful to improve the stock of regulations (OECD, 2020[3]).

This chapter presents a systematic and up-to-date assessment of requirements and practices in place for conducting ex post evaluations for primary laws and subordinate regulation across all 27 EU Member States and the European Commission. The first section provides a snapshot of country’s systems based on the iREG composite indicator on ex post evaluation for primary laws and subordinate regulations. The second section discusses ex post evaluations across the EU Member States. It provides information on the types of evaluations commonly conducted, general approaches to regulatory stock management, regulatory oversight, and the engagement of stakeholders when undertaking evaluations. The final section presents results from new survey data on the use of ex post evaluations in the EU legislative process.

EU Member States have improved their ex post evaluation practices since 2017 for both primary laws (Figure 4.1) and subordinate regulations (Figure 4.2), with a more significant increase in the former. The largest improvements have been in oversight and quality control of ex post evaluations, since more oversight bodies now scrutinise ex post evaluations and assist officials in conducting them than in 2017. EU Member States have improved their ex post evaluation methodologies, especially for primary laws, as more countries are now assessing the costs, benefits and other impacts of existing regulations; are assessing whether regulations are achieving their intended goals; and have guidance available to officials on how to conduct these evaluations. There has been some improvement in the transparency of evaluations conducted.

EU Member States that have had substantive changes to their ex post evaluation systems since 2017 include Croatia, Greece, Italy, Latvia, Lithuania, the Netherlands, Portugal and the European Union.

  • Since 2018, Croatia requires ex post evaluations on primary laws two years after their enactment and policy makers are mandated to assess whether those laws are meeting their objectives. The Government Legislation Office is the oversight body in charge of reviewing the quality of the ex post evaluations and signing off on the evaluation reports. The Ministry of Economy and Sustainable Development reviews the quality of administrative burden reductions as part of the SME test processes for primary laws and subordinate regulations.

  • Greece introduced Law 4622 in 2019. Amongst other topics, it made periodic ex post evaluations mandatory for all primary laws and for major subordinate regulations, and it now requires all ex post evaluations to contain an assessment of costs and benefits. Evaluation techniques and oversight functions related to ex post evaluations were also strengthened.

  • In Italy, new non-binding guidance on ex post evaluation was issued in 2018. Initial steps have been taken to plan ex post evaluations when preparing RIAs for major legislation. Ministries publish a two-year plan of regulations to be evaluated.

  • As part of broader reforms in Latvia, ex post evaluations are now required for some subordinate regulations and an evaluation of all policy documents conforming to the SDGs was recently conducted.

  • Lithuania has introduced some general requirements to conduct monitoring and ex post reviews of existing primary laws and in 2020, it strengthened the regulatory oversight function and transparency of ex post evaluations.

  • The Netherlands saw an improvement in oversight and quality control for periodic ex post evaluation of the effectiveness and efficiency of regulations. The Budget Inspectorate is now responsible for reviewing the quality of ex post evaluations and it has developed a toolbox with guidance for officials conducting these evaluations.

  • Portugal’s main regulatory oversight body was created in 2017 and has taken the role of co-ordinating ex post evaluations of subordinate regulations across the public administration and assisting officials in conducting them. Following the COVID-19 pandemic, Portugal introduced sunsetting clauses for some regulations.

  • The European Union’s ex post evaluation system now combines systematic evaluations of individual regulations with comprehensive “fitness checks” of policy sectors, inviting comment on evaluation Calls for evidence. The EU’s regulatory oversight body also now provides summary ratings on evaluations that are made publicly available along with compliance statistics.

EU Member States’ ex post evaluations should be used as a tool of continuous improvement in the regulatory environment. Some examples highlighting the range of benefits that ex post evaluations have provided are summarised in Box 4.1. Ex post evaluations conducted by EU Member States can potentially improve both their own domestic and the EU regulatory frameworks. The Outlook illustrated that although ex post evaluations are generally published, little is done in terms of forcing governments to respond to evaluation findings (OECD, 2021[4]).

For EU Member States with a strong administrative burden focus, ex post evaluations could, at a minimum, be used to improve the ex ante estimation of those costs in future regulatory proposals. However the extent to which Member States utilise the results of evaluations to feedback into improved ex ante assessments of administrative burdens remains unclear.

Where EU Member States undertake fuller reviews that not only look at reducing unnecessary burdens, but also assess whether the regulation remains in the public interest, there is increased scope for learning and improving future ex ante assessments. A review, for example, may demonstrate that a particular regulatory approach did not change market participants’ behaviours as anticipated, and this information could be used to help guide future policy options. Similarly, a review may note that compliance levels varied widely from what was originally intended when the rule was made. Such information can help to ensure that regulators are armed with a full suite of tools – starting with educational ones – to help achieve sought after compliance levels in the future.

The main type of ex post evaluation undertaken by EU Member States is principle-based reviews. The most common guiding principle is on administrative burdens followed by competition. Since 2017, both Estonia and Sweden undertook in-depth reviews, into the competitiveness of the business environment and environmental assessment system, respectively (Box 4.2).

It is perhaps somewhat surprising that countries with similar values and laws have not taken a more active approach in conducting reviews that compare regulations or regulatory outcomes across jurisdictions. It remains likely that there are opportunities to improve the regulatory environment in various EU Member States based on others’ experiences. One explanation could be that training to conduct ex post evaluations for officials is limited. Only Austria, France, Greece, and Italy report having formal training programs (Box 4.3).

Results from the iREG survey indicate that 16 EU Member States and the European Union require policy makers to identify a process to achieve a regulation’s goals at the time when the regulation is first created (Table 4.1). However, when it comes to reviewing regulations via ex post evaluations, only 13 EU Member States assess whether the underlying policy goals were in fact achieved or not. Only Austria, the Czech Republic, Germany, Italy, and the EU reported doing so systematically. Ex ante requirements exist in Finland, Ireland, Latvia, Lithuania, Malta, Slovak Republic, Slovenia, and Spain without any ex post practices, and conversely Bulgaria, Croatia, Denmark, and Sweden conduct ex post evaluations but have no requirement to identify a process ex ante. These results further highlight the current disconnect between regulation making and review.

Similar to ex ante impact assessments, a threshold with objective criteria to identify when and how to conduct ex post evaluation can help to channel resources effectively to the most significant regulations and improve transparency of decision making about which rules get reviewed and why.

Less than a quarter of EU Member States have a threshold in place to determine whether an ex post evaluation of primary laws should take place – namely, Austria, Estonia, Germany, Italy, Slovenia and Spain. More information on the Estonian threshold test is in Box 4.4. Only Austria, Germany and Spain reported having comprehensive tests that cover both costs and benefits relating to social, economic and environmental impacts (Figure 4.4).

Ex post evaluation requirements in Germany are determined by threshold tests that include whether the annual compliance costs generated by the regulation are in excess of EUR 1 million for citizens and businesses, as well as political relevance and the level of risk of the regulation. All ex post evaluations in Germany are required to contain an assessment of costs (but not benefits) and are required to be quantified. Ex post evaluations regarding major primary and subordinate laws also include a comparison of the actual vs predicted impacts of the regulation being reviewed. In November 2019, the German government introduced additional requirements for independent quality control of ex post evaluations which the National Regulatory Control Council (NKR) is performing.

In Denmark there are no formalised threshold or other factors used to identify regulations that require an ex post evaluation. Instead, it is at the discretion of Danish Business Regulation Forum (DBRF) to decide which regulations will be assessed ex post. However, the DBRF’s decision is based on the regulatory burdens perceived by Danish businesses. Ministerial officials also have the discretion to choose whether to undertake an ex post evaluation and this decision is reportedly based on the political significance of a legislation. In practice when conducting evaluations, some contain an assessment of the costs and benefits and some compare the actual vs predicted impacts of the original rule against observed outcomes. The DBRF has an ongoing monitoring role to ensure that regulations are and remain proportionate after their implementation. Where that is no longer the case it is corrected, but it has to be ensured that relief for businesses is not made at the expense of consumers.

Left unchecked, the stock of regulations builds up over time creating cumulative burdens on business and citizens. Common forms of regulatory stock management are embedding review clauses and regulatory offset arrangements such as one-in-one-out. The OECD has recently published research on both forms of stock management (OECD, 2020[3]) (Trnka, D. Thuerer, Y, 2019[8]) Finland, France, Germany, Italy, Lithuania the Netherlands, and Spain currently have formalised stock management arrangements in place and more recently both the Slovak Republic and the European Union introduced one-in-one-out rules.

Embedded review clauses can be ad hoc or systematic. The former are usually reserved for policies with substantive economy-wide impacts that are highly uncertain at the time of implementation and therefore warrant ex post evaluation to better understand whether the assumptions at the time the rule was made remain valid. The latter usually take the form of either sunset or automatic evaluation clauses. Sunset clauses provide that a regulation will cease to have effect at a specified future date, unless it is either amended or remade. Automatic evaluation clauses provide a specified date by which either a review of the regulation needs to have commenced or concluded by.

Sunsetting arrangements are more commonplace than automatic evaluation clauses across the European Union (Table 4.2). That said, no EU Member State uses them systematically. Austria, Germany, Hungary, and the European Union itself have systematic automatic review provisions in place. Bulgaria, Croatia, Cyprus, Latvia, Malta, Romania, the Slovak Republic, and Slovenia do not utilise either sunset or automatic evaluation clauses.

Regulatory oversight remains underdeveloped across both the European Union and the OECD more generally (see chapter 1 and (OECD, 2021[4])). Despite the fact that 85% of EU Member States reported having conducted ex post evaluations in the past five years, oversight remains scarce (Figure 4.5). Croatia, Lithuania, and Poland all reported having instituted an oversight body responsible for quality controlling ex post evaluations since 2017. These join Austria, Italy, and the Netherlands as the only EU Member States with an entity responsible for oversight of ex post evaluations. Ex post evaluations conducted by the European Commission are subject to quality control mechanisms of the Regulatory Scrutiny Board, which publishes its opinions on evaluation quality.

EU Member States involve stakeholders through a variety of mechanisms when reviewing existing rules. Stakeholder engagement can be particularly useful in ex post evaluation to provide input into how regulations are actually working and can be a channel for regulators to prompt feedback from those parties affected by a regulation. Stakeholders can be involved both in the actual reviews and in more ongoing processes of identifying areas that may require reform.

Informing stakeholders in advance about forthcoming ex post evaluations is rare across EU Member States (Figure 4.6). Providing advanced notice to stakeholders enables them to gather data on actual impacts and experiences to assist policy makers to determine whether rules have worked as originally intended. Only Lithuania always informs stakeholders in advance, although it should be noted that this requirement is newly introduced and, in practice, has not been extensively used. Italy requires stakeholders to be systematically informed, and Denmark, Latvia, the Netherlands and Spain do so for some ex post evaluations.

Estonia and Sweden and the European Union report to systematically engage stakeholders in ex post evaluations. Two-thirds of EU Member States engage stakeholders in some ex post evaluations. Since 2017, Croatia and Latvia now involve stakeholders in evaluations of some regulations.

Most commonly, stakeholders are provided ongoing opportunities to submit comments, participate in interviews and meetings. Their input helps to identify areas for improvement and is often included in the scope of any evaluation. Stakeholder involvement is used in this manner in the following countries, including Croatia, Lithuania, the Netherlands, Poland, Portugal, and the Slovak Republic. For example, in Italy, stakeholders are consulted twice: first, early in the planning stage and then during the evaluation process. As for reviews of a large number of regulations, stakeholders are also involved in defining the priorities to simplify administrative and regulatory burdens and monitoring the implementation of the simplification measures. In Sweden, experts from business organisations and other interest groups can be appointed as experts in a committee of inquiry established by the responsible ministry to carry out ex post evaluation of a regulation. Referral bodies and stakeholders are also invited to provide comments on the final report, which are then dealt with by the responsible ministry in the continuous work within the Government Offices.

Four EU Member States report to systematically reference parts of the initial RIA in the ex post evaluations: Austria, Germany, Greece and Poland. In addition, seven EU Member States reference the ex ante RIA in some evaluations. Compared to 2017, Estonia and Greece have this requirement in place now. In Estonia, objectives and problems identified in the initial RIA are reflected most commonly in ex post evaluations. In Greece, all parts of the initial RIA should be referenced in ex post evaluations. When conducting evaluations, the European Union notes the ex ante RIA in all ex post evaluations, in particular it refers to the problem definition, policy objectives, regulatory impacts, data collection, enforcement, compliance and monitoring mechanisms in its evaluations.

Only a handful of EU Member States have standing committees to whom the public can provide feedback or make recommendations to modify specific regulations. The four countries with standing committees are: Denmark, Germany, Ireland, and Malta. The European Union has its own standing committee. Germany has a Committee for petitions which serves as a central point of contact at the Bundestag for citizens, through which they can express concerns and propose regulatory suggestions to the Parliament. The Parliamentary Committee on Public Petitions in Ireland has an online portal through which the public can provide comments on existing regulations.

EU legislative processes can be improved by utilising the results from ex post evaluations to improve policy making. Given that the vast majority of EU Member States have undertaken some evaluations, coupled with the evaluations of the European Commission, there is an available evidence base that can be help to improve the rules of both Member States and the European Union more generally.

The opportunity to learn from evaluations is not limited to the policy ministry conducting the review. Results can be widely applicable. Part of the learning process is to integrate results into future policy making and more precisely in any subsequent RIAs. Yet, currently sharing results beyond an individual jurisdiction is rare (Figure 4.7). Despite the fact that around 85% of EU Member States undertook at least one ex post evaluation in the past five years, less than 15% shared their results with the European Commission where the evaluation involved areas of EU legislative competencies. As a transparency measure reviews should generally be published and shared with relevant parties.

EU Member States that do not feed the results of their ex post evaluations of EU directives/regulations with the European Commission, in most cases, do not do so because they do not have EU directive review mechanisms, or because evaluations are rare. However, in Poland, despite not having a requirement in place to share the results of domestic ex post evaluations with the European Commission, the minister responsible for the field concerned might share the findings of EU-law revisions with the European Commission.

Only Denmark, Finland, Germany, and Italy provide the European Commission with the results of their own domestic ex post evaluations of EU directives/regulations. Finland noted that it is not very common to conduct ex post evaluations of EU directives/regulations. However, if an ex post evaluation on EU directives is carried out (e.g., for a politically important EU directive for Finland), the results can be delivered to the Commission as part of the efforts to influence any future EU legislation. The Finnish approach is more generally linked to the appropriate insertion of review clauses into national legal acts. Sometimes they reflect the existence of a review clause in the relevant EU act, but do not necessarily have to do so. A more frequent use of national review clauses is often debated as a part of possible measures to improve ex post evaluation in Finland. In Germany, the analysis and processing of evaluation reports by the European Commission regarding certain dossiers is done by the relevant ministry’s desk officers. The desk officers receive the information from their co-ordination units in the ministries and process and distribute the information to all persons and entities concerned. However, there is no special instrument or regime where this is written down. This is naturally part of the ongoing processing of EU dossiers in the federal government.

The European Commission has an institutionalised approach to conducting ex post evaluations (Box 4.5). Under the “evaluate first principle”, the European Commission utilises evaluations to improve the existing regulatory environment and inform impact assessments. The European Commission also in some cases utilises evaluations ‘back-to-back’ with its impact assessment as part of the same process when it proposes legislative changes. Such an approach provides information and evidence about the existing regulatory environment, the extent to which what has occurred was originally expected, and if not (or if the originally envisaged are not currently being attained), allows the Commission to put forward new regulatory directions in the form of a new impact assessment. The feedback loop from evaluation to new proposals should, over time, help to improve the regulatory environment, including aspects of burden reduction and simplification, which the European Commission addresses through its regulatory fitness and performance programme (REFIT). Considering that there are many external factors and developments that may impact on the attainment of regulatory objectives, periodic reviews remain necessary, even if not connected with a policy revision.

There are 11 Member States that report using the results of European Commission’s ex post evaluations to inform their national negotiating position for the development of new or redesigned EU directives/regulations (Figure 4.8). Slovenia is the only country that engages in this practice systematically. For example, the Netherlands incorporates the results of the Commission’s ex post evaluations in the BNC-fiches that are sent to the parliament to inform the Dutch starting point for negotiations. Latvia uses the information gained from the European Commission’s ex post evaluations in adopting the national positions to explain the aims and shortcomings of the new/redesigned EU legal acts.

Nine EU Member States reported using the results of the European Commission’s evaluations to inform the transposition of new or redesigned EU directives (Figure 4.9). The relatively low uptake may be partially explained in situations where the European Commission undertook a “back-to-back” review and any resultant new European Commission proposals and supporting material were made directly available to EU Member States through such avenues. Slovenia is the only country that systematically utilises the findings of the European Commission’s ex post evaluations to inform its transposition of major EU directives/regulations. During the transposition of EU directives into national law, Italy uses the same requirements and processes described as for other types of regulations originating domestically. Each Administration with prevailing competence is responsible for drafting the legislative text and has continuous contact with the European Commission. The Department for European Policies co-ordinates with the Administrations and verifies the compatibility of the proposed regulations with European law.

In addition to using the Commission’s ex post evaluation results to inform the negotiating position and transposition of EU directives/regulations into national law, Denmark uses the findings of the Commission’s ex post evaluations for its own domestic evaluations. For instance, the results of the “Study on the accounting regime of limited liability micro companies” were used for the revision of the Danish Financial Statements Act (Årsregnskabsloven).

It stands to reason that EU Member States utilise the European Commission’s evaluations more at the negotiation stage than at the transposition stage. During negotiation, with the Commission having identified problems or difficulties with the operation of the law, have then suggested modifications in the form of either an amendment or a new proposed rule. EU Member States may then rely on the European Commission’s identified issues and stated future direction to inform their own negotiating position. Since the focus of the transposition stage is more centered on implementation, the original rationale as identified in the evaluation may be of less direct relevance to individual EU Member States. Moreover, Member States are likely to focus on any national additional provisions included as part of the transposition process. The focus on such provisions (to the extent that they are included) helps to ensure that all relevant impacts are included in any ensuing analysis by Member States.


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