Let us wait and see first how the law does not work? ‘Better Regulation’ can do it better!

Abstract

EU law presents a paradox: we create EU law aiming at ensuring (legal) certainty and guide our behaviour but the enforcement of EU law creates instead (legal) uncertainty. This is because if the law is not complied with or is applied differently, you do not achieve (legal) certainty, do you? Given the rise of knowledge on reasons for non-compliance and suboptimal enforcement, the paper has challenged the somewhat traditional logic of (EU) democratic law-making – ‘let us wait and see first how the law does not work’. It has argued that considering enforcement should become an obligatory part of (pre)legislative stages in the EU to pass effective laws. Based on multidisciplinary research, it has tentatively proposed five clusters of reasons behind non-compliance and sub-optimal enforcement: the extent of (dis)agreement at the law-making stage, complex (legal) context, multiplicity of decision-making actors and points, language ambiguity, and value pluralism. These clusters help establishing a list of questions that could help the existing ‘better regulation’ agenda and the legislative stage. This paper’s academic ambition is to bring together landmark insights from three literature streams (EU law (enforcement), compliance and policy implementation studies) to show their common goals and to invite further coordination and collaboration.