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(b) To reduce regulatory pressure

Sunset clauses emerged in the past decades in the political debate in Germany and in the Netherlands regarding the need to tackle bureaucracy and reduce regulatory pressure.[1]

In the Netherlands, sunset clauses emerged in the 1990s as an instrument at the service of deregulation and improvement of the quality of legislation and regulation. By the 1980s, the Dutch government had become aware of the need to introduce ‘better regulation’ strategies.[2] The Dutch government initiated a regulatory reform aimed at reducing and avoiding the enactment of excessive and deficient legislation.[3] Comprehensive regulation seemed to become rapidly obsolete since the legislator was not able to meet the expectations of a progressively more complex society characterized by rapid technological developments and globalization.[4] This perception led to an effort to proceed to substantial deregulation which, however, was not translated into a broad enactment of sunset clauses.[5]

It was only in the 1990s that a first connection between deregulation and temporary legislation emerged with a statute aiming to promote ‘social renovation’ (‘sociale vernieuwing’) in the context of the economic crisis.[6] This Act included a sunset clause and was presented as a flexible and simple instrument in the context of deregulation. The

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sunset clause conferred the necessary flexibility to keep pace with the constant changes over time of policies. More recently, this instrument was employed in a framework designed to tackle overregulation and regulatory pressure;[7] to stimulate the enactment of effective laws and the periodic evaluation of legislative acts;[8] and to reduce the annual amount of laws[9] and the complexity of the lawmaking process. In the Netherlands, it has been discussed whether sunset clauses can contribute to a reduction of regulatory burdens. Periodic evaluations and termination of Acts would lead to the extinction of unnecessary burdens. Sunset clauses can be useful but they are not a panacea for regulatory pressure. Moreover, considering the US experience with sunsets in the 1980s, one can fear that the excessive enactment of sunset clauses can generate more bureaucracy than it eliminates.

In Germany, there has also been for several decades a growing awareness of the excessive number of laws and regulations.[10] New approaches and instruments have been sought to concretize the desired Burokratieabbaus. It has been argued that sunset clauses can tackle excessive bureaucracy since they put an end to unnecessary policies. Policy termination is, according to the literature, an exception in Germany, which is used to tackle the issue of obsolescence of laws and regulations. The same can be verified in the United States[11] and in the Netherlands, where there appears to be a political attachment to enacted policies even when they are not producing the expected results (see Chapter 7). Although a broader use of sunset clauses has been suggested in the literature in this context, according to the OECD, Germany has not ‘particularly encouraged sunset clauses or other devices that would trigger review of individual regulations’.[12] However, according to the same institution, sunset clauses could be used ‘when a new approach is being tested, or it is important to check what [happens] in practice’.[13] Despite this debate, up until now, there is no solid evidence indicating that a broader implementation of sunset clauses will necessarily result in a reduction of regulatory pressure.

  • [1] Bertelsmann Stiftung, ‘Gutachten: Wirksamkeit von Sunset Legislationund Evaluationsklauseln’ n. 79 above.
  • [2] OECD, Better Regulation in Europe: The Netherlands (OECD, 2010) 15;OECD, Regulatory Reform in the Netherlands (OECD, 1999).
  • [3] J.H. Van Kreveld, ‘The Main Elements of a General Policy on LegislativeQuality: Dutch Experiences’ in Alfred E. Kellermann, Giuseppe Ciavarini Azziand Rex Deighton-Smith (eds), Improving the Quality of Legislation in Europe(Kluwer Law International, 1998) 91.
  • [4] G.W. van der Voet, De kwaliteit van de WMCZ als medezeggenschapswet(Erasmus Universiteit Rotterdam, 2005) 152-3, available at http://repub.eur.nl/res/pub/6920/.
  • [5] See, as an example, the deregulation programme on environmental andurbanistic affairs of the Van der Grinten Committee, DereguleringsprogrammaRuimtelijke Ordening en Milieubeheer (also ‘DROM-rapport’), Kamerstukken II,1982-1983, 17 931, no. 4. See the Geelhoed Committee report, Deregulering vanoverheidsregelingen also referred as Eindbericht van de Commissie verminderingen vereenvoudiging van overheidsregelingen, Kamerstukken II, 1983-1984, 17931, no. 9.
  • [6] Tijdelijke bepalingen ter stimulering en bekostiging van sociale vernieuwing, Kamerstukken II, Vergaderjaar 1992-1993, 23 052, no. 3.
  • [7] Commissie Regeldruk Bedrijven, report available at www.rijksoverheid.nl/documenten-en-publicaties/brieven/2011/04/22/advies-toezicht-20-van-de-commissie-regeldruk-bedrijven.html.
  • [8] ZENC, Horizonwetgeving Dichterbij, n. 38 above.
  • [9] Ibid.
  • [10] See Jorg Steinhaus, Gesetze mit Verfallsdatum: Ein Instrument desBurokratieabbaus? (Books on Demand, 2008).
  • [11] Peter deLeon, ‘Afterward: The Once and Future State of Policy Termination’ (2012) 20(12) International Journal of Public Administration 2195.
  • [12] OECD, Better Regulation in Europe: Germany (OECD 2010) 108.
  • [13] Ibid. 114-15.
 
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