The "governance turn" in EU digital regulatory policy making

In my thesis I study the “institutional design choices” of EU regulatory governance in the field of digital policy making. The first part provides a theoretical framework, drawing on theories of “the new EU governance approach”, “throughput legitimacy” and “discursive institutionalism”. I presume that a proliferation of “new governance instruments” has taken place in EU’s regulatory policy – as well as at national level – which is specifically visible in the field of digital governance. This development hints towards a “governance turn” marked by an increasing focus on regulatory procedures and participatory governance, indicating the growing importance of the principle of “throughput legitimacy”. The main argument is that the substantive content of regulatory norms is best defined through particular modes of decision-making. Key initiatives that mark the ideal of gaining legitimacy through “proceduralisation” – throughput legitimacy– are better-regulation reforms, also called “meta-regulation”, intended to optimise institutional designs. Legal scholars critically point out that this focus on throughput legitimacy tends to disguise the fact that institutional design choices are value choices that have far-reaching (social) implications. I argue that institutional design choices can be categorized into three different regulatory regimes: “deregulatory regime”, “evidence-based technocratic regime” and “civic-republican regime”. Each regime consists of different “discursive spaces” (specific configurations of stakeholders involved in the policy making process, discursive interactions, and power configurations): “private spaces”, “epistemic spaces”, “functional-participatory spaces” and “deliberative spaces”. The study of the formation and shift of regulatory regimes in the field of digital policy is specifically interesting, as this is marked by a rapid growth of uncertainty, complexity, public salience, internationality, and strong polarizations between diverging interests. Moreover, the regulatory outputs in this policy field have an enormous influence on the private life of individuals, but also on the way of living together in a society. Therefore, it is of huge relevance to understand the reasons for the choice of a specific institutional design of a policy formulation process in digital regulatory governance and the impact this institutional design has on the policy outcome. In the second part, I apply my theoretical toolbox of regulator regimes and discursive spaces on EU regulatory governance. I draw mainly on a longitudinal analysis of the Commission strategies and legislation in the area of content and data. I suggest the regulatory regimes shifted from 1. a “deregulatory regime” (starting with the Digital Agenda, 2000); to 2. increasing efforts to balance market-liberalisation and social welfare goals (marked by the Digital Single Market Strategy 2015); to 3. increased focused on ethics, broad societal questions, digital sovereignty, EU fundamental values and common goods (the New Digital Agenda, 2020). It is of great interest to understand whether the second, and specifically the third phase of digital regulatory governance can be linked to the “evidence-based technocratic regime” or to the “civic-republican regime”. I argue that when it comes to regulations protecting common goods, defining societal harms and EU fundamental values the “civic-republican model” should prevail, but I assume that this is not the case, instead the “technocratic model” is predominant.