Who Bears the Burden of Complexity? Implications of policy complexity for who is targeted and how rules are mediated

Legislative complexity in the European Union is on the rise, increasing both in terms of the accumulation of laws and their substantial complexity. Recent studies illuminate how this complexity gives way for implementation challenges at the member state levels. Less is known however, on the differentiated impact of such complexity on the different actors of EU legislation and who among them bears the burden of increasing legislative complexity. This contribution empirically investigates the consequences of legislative complexity, scrutinizing which actors are targeted by complex rules and which intermediaries are assigned to interpret and enforce these rules in the policy areas of health and migration. Doing so it unpacks a three-way relationship between complexity, targets, and regulatory intermediaries in EU legislation. Complexity affects actors differently and has distributional consequences. Target groups with greater need for rule clarity and weaker negotiating roles—notably private actors—might be more severely affected than public targets such as member states. Complex laws increase challenges related to monitoring compliance, leading to greater demands for regulatory intermediaries and affecting the number and types of intermediaries. Through textual analysis and rule-based extraction from an exhaustive dataset of legislative documents published throughout the last several decades we observe the complexity, targets, and regulatory intermediaries active in EU law. The cases of health and migration policy are selected as they have both seen increasing EU competences in recent decades in spite of reluctance against supranational intervention on the side of member states. Yet they are likely to vary with regard to the target groups: While health policy frequently targets private enterprises and end users, migration policy typically targets member states. We ask two central questions. First, do complex laws target private actors more heavily than public actors? While private actors are increasingly subject to highly detailed provisions, laws directed at member states can be more sweeping and general in nature. Private actors furthermore lack the negotiating power of member states, placing them in a weaker position to oppose highly complex legislation with high application costs. Second, what is the interplay between legislative complexity, varying target groups, and the use of regulatory intermediaries? The amount and type of regulatory intermediaries present in EU legislation—be they private bodies, national authorities, or supranational institutions—are likely to depend on the type of actors targeted by EU law, while the function of regulatory intermediaries in itself might be warranted by legislative complexity. Unpacking these relationships contributes to understanding how the nature of EU policy changes over time, the role of the actors taking part in its enforcement, and the differentiated impact of legal complexity on the actors targeted by EU legislation.