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Revealing research about the EU body that has great power over legislation – but that few know about

The Regulatory Scrutiny Board was established by the European Commission in 2015 as an independent body to contribute to better EU legislation. The problem, however, is that the board has gained great power, is exposed to the influence of various stakeholders and lacks transparency, shows new research by Brigitte Pircher at Linnaeus University.

The EU decision-making process is undisputedly complex. In most cases, EU law is adopted by the European Parliament and the European Council together, based on proposals by the European Commission.

However, few are aware that there exists a group of non-elected representatives within the Commission who can exert a significant influence on the legislative process. These experts form the so-called Regulatory Scrutiny Board (RSB).

“In practice, the RSB has a veto position which gives non-elected experts within the Commission a too strong role in the EU legislative process. Besides that, lobbyists may try to influence the Board during the work. This becomes particularly problematic as the Board's work is not transparent”, says Brigitte Pircher, associate professor in political science at Linnaeus University and specialist in EU decision-making.

Regulatory Scrutiny Board (RSB)

The RSB was established by the European Commission in 2015 to assess the quality of draft impact assessments, fitness checks, and major evaluations. All legislative proposals are accompanied by such draft impact assessments and the RSB first needs to clear these reports for the Commission to propose the legislation. Yet, if the RSB issues two second negative opinions, only the college in the Commission can pursue with the legislative act.

Risk of bias

The RSB caught Pircher’s interest since the board is rather unknown, even in Brussels. Also, societal actors have claimed that the Board is biased in favour of large industries. Therefore, she has investigated the RSB's work and position in a new study.

An obvious example of the problem is the EU’s Corporate Sustainability Due Diligence Directive.

“My study reveals that the RSB had contacts with lobbyists before the legislative proposal was even proposed or transmitted to the legislators. Large industries, including Swedish and Danish ones, tried to lobby the RSB who issued two times negative opinions and was against strong measures. In the end, the legislation was heavily watered down and nowadays applies only to 0.2 % of all European companies. In the decision-making, the RSB contributed to the politicisation and polarisation of this law.”

It is, of course, difficult to assess the exact impacts, says Pircher, but the structure and role of the RSB make it prone to lobbyists and there is no public accountability or transparency.

“The RSB’s opinions are only published at the end of a finalized proposed law. This means that there is no transparency in the RSB’s work and the evolvement of its opinions – not even to the legislators. For example, members of the European Parliament are not allowed access to these documents. I therefore argue that the RSB in its current form increases the politicisation of EU policymaking behind closed doors. This seems – as outlined in the study – especially problematic since the RSB lacks public accountability.”

Reduce the power

The most important steps to deal with the problems that Brigitte Pircher has seen is to reduce the Board’s power and to make the process more transparent.

“The legislative process should be up to the European Parliament and the European Council. The RSB should be reduced to an expert board without any veto position. Moreover, the RSB should act entirely transparent and ensure access to its documents in all the decision-making steps.”

More information

More examples

Other examples shown in Brigitte Pircher’s study are the RSB’s argumentation against the draft report on the initiative on equal pay between men and women, and on the initiative on preventing gender-based violence. In these cases, as well, the RSB issued two times negative opinions, arguing with economic criteria such as cost-benefit analyses. This led to severe delays in the legislation and “also reflects bad on the RSB, since mainly men currently sit in the board”, stresses Pircher. “The strong focus on economic criteria undermines sustainable legislation important for societies and risks the realisation of high ambitions such as the European Green Deal and the European Pillar of Social Rights.”

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