The Swing of the Regulatory Pendulum in Europe: From Precautionary Principle to (Regulatory) Impact Analysis

Regulation in Europe is currently driven by three distinct, yet not entirely unrelated factors. These are competitiveness, sustainable development and governance. Increasingly these factors influence both the need for, and concepts of, what the European Commission (the Commission) refers to as “better regulation.” To ensure better regulation, two regulatory philosophies have been put forward, namely the precautionary principle and impact assessment.^1,2 In this paper, I first briefly describe the current drivers of better regulation. Then I examine the use of these two regulatory philosophies in helping to achieve better regulation. In the final section I offer some speculations on the future development of European Union (EU) regulation. Will elements of the Commission and the EU member states operate in an even more precautionary environment, or will the implementation of the precautionary principle be seen as too costly, forcing regulators to resort to an even greater use of impact analysis?