Abstract
This report presents a first mapping or inventory of the different approaches to self- and co- regulation (SCR) that can be found within the EU context, in a number of Member States (MS) and international organizations. The report consists of four sections. Whereas the first section provides an introduction to
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the study, Section 2 provides a detailed overview of the EU approaches to self- and co-regulation. It reflects on the extent to which the Commission considers the use of SCR as a suitable option to improve the quality of European legislation and policy- making, and contribute to achieving the goals of the Better Regulation and Smart Regulation policies. This section also explores the definitions given to SCR under these policies as well as the conditions that are set for their use. Where possible, conclusions are drawn as of whether these policies reflect a changing approach to the use of SCR. Following the review of the EU approach, the report provides a preliminary overview of the existing self and co-regulatory approaches in the global and national regulatory context. More specifically, Section 2.2. analyses the institutional viewpoint of six well-known international organisations on the definitions of self- and co-regulation, as well as the use of these mechanisms as a part of ‘good governance’ (i.e. the Organisation for Economic Co-operation and Development (OECD); World Bank; the Council of Europe; the International Monetary Fund (IMF); the International Chamber of Commerce (ICC) and the United Nations (UN)). It is interesting to note that whereas the OECD and the World Bank take an institutional approach and elaborate intensively on the role of self and co-regulatory mechanisms in a system of good governance; the IMF, ICC, UN and the Council of Europe have only briefly referred to these mechanisms while focusing in particular sectors only. For example, the IMF mainly refers to the role of self- and co-regulation in the financial sector, whilst the Council of Europe encourages the use of self-regulation in the regulation of illegal or harmful content on new communications and information services. In a similar vein, the analysis of the SCR approaches at the national level (Section 2.3) emphasize also that countries rely on these approaches to a different degree. A first exploration of existing approaches towards SCR in a limited number of MS shows that, whereas for instance in the UK and Netherlands, self-regulatory arrangements occupy a relatively exposed position within the national regulatory contexts, the regulatory traditions in other European legal cultures (such as Austria, France or Italy) show a significantly stronger reliance on the traditional command-and- control regulation. Nordic EU member states, on the other hand, such as Denmark and Sweden for example, seem to be relatively experienced in the use of alternative forms of regulation, such as SCR, especially in the field of consumer protection, media management and regulating good market behaviour. As far as permitted by the data, this Section also provides a short typology of SCR arrangements at national level. Section 3 of this report provides a more comprehensive overview as to what conceptualizations, definitions and typologies of SCR have been developed so far. These analyses derive from a broad review of the legal and regulatory theory. To establish whether theories in literature bear a close resemblance to each other, Section 3 provides a mapping (categorization) of various regulatory typologies, which include: no regulation, self-regulation (private regulation), co- regulation (private-public regulation) and public regulation. Building upon the theoretical review and categorization of regulatory typologies, it has been possible to chart a regulatory continuum between the fully private option on the one hand and the fully public/hard legislation option on 2 the other. This chart presents a visual impression as to where the identified typologies of SCR can actually be located on this continuum between private and public forms of intervention. Co- regulation (or public-private regulation) is found to encompass many hybrid forms of private- public regulation. To systemize the broad spectrum of private-public regulation, a typology has been introduced which is based on three distinct analytical factors, including: the stages within the regulatory process in which public involvement can be located, the nature of public involvement in the regulatory process and the intensity of public involvement in the regulatory process. Section 4 provides preliminary analysis of the various regulatory regimes (or initiatives) that exist in the database on self and co-regulation, which was established in 2008 by the Single Market Observatory of the European Economic and Social Committee (EESC). This Section reflects in particular in what policy areas and sectors these initiatives have occurred and what information is provided in this database with regards to various SCR regimes in EU. The EESC database involves over 130 self and co-regulatory initiatives in a variety of policy fields. These include, the areas of product safety and sustainability, food hygiene, professional services, e-commerce, internet and media services, intellectual property rights, financial markets, social policy and environmental protection. Given that the information in the EESC database is not complete and is currently being updated, no conclusive observations can be made as to where to locate the different regulatory initiatives on the regulatory continuum. However, after exploring the existing SCR initiatives in the EESC database, some recommendations are made as to how the database could be further improved. Section 5 concludes this study and highlights a number of issues that require further attention and could contribute to the good functioning of SCR. The report also contains a detailed annex, presenting a visual overview of the mapping of the regimes that currently exist in the EESC database.
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