Better Regulation through Experimental Legislation

Since the 2002 White Paper on Governance, European Union (EU) law and policymaking is aiming for a more evidence-based approach towards regulation. Until today, most Better Regulation (BR) tools, such as consultations, expert advice, and Impact Assessments (IAs), usually produce rather soft evidence, at least from a methodological perspective. A possibility to change this would be to rely more on experimental legislation and try out new laws and regulations first on a small scale and for a limited period before enacting more permanent laws. This may not only prevent negative (side) effects and filter out implementation and enforcement problems but is also a way to deal with situations of great uncertainty where major risks are involved. The question, however, is to what extent principles of equal treatment and legal certainty stand in the way of adopting experimental legislation in the EU's legislative policy. The experimental method will not solve all difficulties. It is, after all, only a subsidiary method. The course to be followed is to give experimentation its place as a means of obtaining data for deductions, not to base political action wholly upon experiment and nothing else, for this would be to make the conclusions derived from it merely empirical laws.