Independent fiscal boards: a case study for new challenges for comparative law

Independent authorities are well documented in a range of economic sectors (energy, water, railways, telecommunications, competition etc and later in the data protection field) following the privatisation agenda of the 1980s and thereafter. According to Rosanvallon, these independent authorities contribute to a legitimacy of impartiality needed in a democracy. Less well documented are more recent independent authorities created in the realm of national public finances such as the Belgian Federal Planning Bureau (one of the very oldest such authorities dating back from the post WWII period), the Belgian High Council of Finance, the French High Council of Public Finances, the German Independent Advisory Board to the Stability Council, the CPB Netherlands Bureau for Economic Policy Analysis or the UK Office for Budget Responsibility, or the USA Financial Stability Oversight Council for instance. The factors behind the proliferation of these independent fiscal authorities are multiple: economic theories favour independent expertise for managing public funds; market investors seek independent information on the risks they take when lending money to states; international organisations such as the IMF and the OECD have adopted recommendations about the independence of fiscal authorities; the EU also encourages their use especially with the adoption of the new economic governance in 2024 strengthening preexisting independence requirements (Regulation 2015/759). Despite the international and European instruments, national independent fiscal authorities exhibit a high degree of differentiation in their tasks and the guarantees protecting their independence. This paper will seek to map how these differences can be explained by testing a double hypothesis. The first hypothesis is independence is not a universally understood feature but one that takes its meaning from its (social, economic and political) context. The second hypothesis is that independent fiscal authorities are not yet mature, so that changes (legal or otherwise) are likely to keep them evolving. With this case study analysing five independent fiscal authorities (the Belgian High Council of Finance, the French High Council of Public Finances, the CPB Netherlands Bureau for Economic Policy Analysis, the UK Office for Budget Responsibility, and the USA Financial Stability Oversight Council), the paper aims to contribute to discussions about independence in state organs and to identifying if and how legal fields such as the one of public law finances are developing and changing mostly as a response to functional (social, economic and political) needs, international trends and exchanges of good practices with case law contributing only at the very extreme margins (at least until now). It will also seek to map some of the main (methodological) challenges comparative law may have to address when we leave the more well-trodden legal fields of contract 8 law or constitutional law to explore legal fields in the making at the crossroads of economics and politics.