Better Regulation or Better Representation: The Missing Normative Theory of Regulatory Impact Assessments

There is a vast amount of literature on the ‘Better regulation’ agenda of the EU as well as on regulatory impact assessments (IA) in general and myriad of studies assessing the latter in terms of their quality, transparency, independence etc. Yet in most of these cases the normative criteria are accepted as a matter of course, intuitively assumed rather reflectively questioned. The proposed paper attempt to fill this gap. The point of departure is the concept of discursive representation, originally proposed by John Dryzek and Simon Niemeyer as a normative framework for transnational and global governance. On this account, for their decisions to be democratically legitimate, the regulatory authorities must actively seek and take into consideration all relevant positions on the given regulatory problem, with the relevant information and associated arguments. Instead of accounting for the stakeholders/people behind certain position, the regulatory process is representative to the extent that it reconstructs all societal concerns (even if few participants are actually able to stand up and speak for these concerns themselves). Thus, the proposed paper considers the legitimacy of the process of drafting and adoption of EU secondary law from such perspective. It conceives the IA as virtual fora where justificatory discourses meet.