Outsourcing to External Contractors by the European Commission – the Janus Face of EU’s Better Regulation Agenda?

The regulatory reforms introduced by the Juncker Commission in 2015, known as the Better Regulation (BR) Agenda, produced a systematization of consultation practices in the European Union (EU), but also a multiplication of consultation opportunities across the policy cycle. In particular, Online Public Consultations (OPCs) were required both in policy initiation (to assess the scope, priorities and added-value of EU action for new initiatives), as well as in policy evaluation (to assess how the policy worked on the ground). Their use has been extensive – during its term in office the Juncker Commission has closed 440 public online consultations. The paper reviews all these OPCs launched and closed by the Juncker Commission (the precise timespan of the conducted research is 1 November 2014 to 1 August 2019) using the online database "Your Voice in Europe" (currently "Have Your Say"). We zoom in particular on the 18% of the published consultation reports, which were produced by a third party (typically external contractors such as consultancy companies). Starting from this finding, the paper investigates the phenomenon of outsourcing the execution and analysis of OPCs to external actors/contractors. Consultants (or contractors) operate largely outside of the public’s scrutiny, in the periphery of formal procedures, and their accountability is at best unclear. In addition, their long-term involvement in regulatory policy-making "infantilizes" public authorities (Mazzucato and Collington, 2023). From a practical perspective, resorting to consultants’ services seems like a reasonable measure to alleviate increased burden for Commission officials (Chalmers 2014). From a normative perspective, however, internal capacity shortages seem like an insufficient justification, because via outsourcing a third party is inserted into what is otherwise supposed to be a close and direct line between the public and the EU decision-makers. An internal Commission review has estimated that external contractors provide services amounting to between EUR 10 million and EUR 37 million annually in the framework of the Better Regulation Agenda (Commission 2019) - practices heavily criticized by the European Court of Auditors (2022). The paper asks how the European Commission justifies the use of external consultants in OPCs, and what implications this has for the way it constructs the legitimacy of OPCs more generally. By exploring the criteria on which consultants are selected, the nature and the scope of the outsourced tasks, the expectations surrounding consultants’ work and output, and, most importantly, how their use is justified by the Commission, this paper offers insight into a more general question, namely what the European Commission values when it comes to OPCs in its internal policy formulation processes.