Stakeholder Engagement and Regulatory Responsiveness: Pretty on Paper, but What Happens on the Ground?

The rise of EU agencies has been accompanied by a scholarly interest in their role in the European Union. The newer agencies engage in regulatory activities, occasionally with the power to adopt binding decisions, but more commonly providing draft documents for the Commission to review and adopt into law. With regulatory governance under increasing pressure, a solution to improve legitimacy and effectiveness of regulation has been to bring organized interests onboard, and be transparent in how stakeholder input is taken into account. Today, stakeholder engagement is a major part of how these EU agencies develop their regulatory deliverables. Previous research has found that EU agencies have formal arrangements in place for engaging with stakeholders not only to collect information, but also due to legal requirements as well as voluntary out of reputational considerations (Arras & Braun 2017, Perez-Duran 2017). An important venue for contact between agencies and stakeholders is public consultations, in which EU agencies receive written input from various interest groups, firms, citizens etc. Several EU agencies respond to the comments that they receive via public consultations. This may come in the form of an evaluation paper that responds to issues generally raised by stakeholders (evaluation of responses), or the agency may directly respond to comments received from specific stakeholders. Evaluation papers as an instrument is designed to ensure the responsiveness of a public agency. While it does not force the agency to take onboard received input, it should at least make the agency consider the comments it receives. Moreover, publication of evaluation papers may serve to secure transparency in how input has been taken into account. While pretty on paper, how does this arrangement look like on the ground? This paper analyses all public consultations carried out by ACER 2011-2017. Based on interviews and public records, the paper first analyses the nature of the conversation that the agency opens up for with stakeholders (e.g. broad/narrow) and the agency-internal process of writing up evaluation papers (e.g. when during the process and by whom). Second, ACER evaluation papers are examined to see whether it is generally responsive to received input, and how it communicates disagreement (e.g. use of reasoning). Finally, the paper discussed how the evaluation papers were received by stakeholders. Among the EU’s regulatory agencies, the Agency for the Cooperation of Energy Regulators (ACER) had the least diverse interest group participation in its public consultations (Arras 2017). As a young and contested agency, ACER has high need for legitimacy, but must avoid capture and be vary of excessive responsiveness towards what is a highly concentrated group of stakeholders. Isolation would moreover be detrimental to regulatory effectiveness, as ACER relies on stakeholders not only to obtain relevant information, but also in the implementation of regulation. As such, ACER faces conflicting demands and must balance different considerations. This paper analyses how ACER deals with multiple pressures in practice when engaging with stakeholders.