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Départements : Droit et fiscalité, GREGHEC (CNRS)

the purpose of this article is to shed some light on the emerging, yet largely undefined, principle of openness in EU law. After addressing the semantic confusion existing between openness and transparency, it attempts – through a textual and systemic interpretation of their respective legal basis – to identify the normative content of the EU turn to openness. It then moves to explore the principle’s potential for attaining its declared Treaty-sanctioned objectives: promoting good governance and ensuring the participation of civil society in the democratic life of the Union. It illustrates that, although openness largely maintains an instrumental rationale – aimed at enhancing the quality of the regulatory outcome rather than at promoting a more inclusive process –, the institutional, substantive and societal landscapes surrounding its operation have changed in recent times. It demonstrates that these alterations may help to shift the understanding of openness in the EU away from a specific, unidirectional, bottom-up right of access to information to a much broader, proactive and top-down duty of the EU administration to genuinely open its vault of information to the public and create new avenues of participation for civil societies and other organised interests. The changing nature of the openness rights accompanied by the growing demand for more active participation inherent to our times is set to reinvigorate civic life and, more importantly, to ensure political legitimacy grounded in democratic values.

Mots clés : Open government, Transparency, Participation, Civic empowerment, Legitimacy, Accountability, Civil society, European Union, Good governance

Département Droit et Fiscalité

At a time when policy makers want to change the behaviour of citizens to tackle a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach has appeared that seems capable of escaping the liberal reservations typically associated with all forms of regulatory action. The approach, which stems from the increasingly ubiquitous findings of behavioural research, is generally captured under the evocative concept of ‘nudge.’ Inspired by ‘libertarian paternalism,’ it suggests that the goal of public policies should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. As governments are taking considerable interest in the use of ‘nudging,’ this collection of essays provides a pioneering analysis of this innovative policy approach as it is currently experimented in the United Kingdom and the United States. In particular, it aims at critically examining the application of nudging approaches to the current efforts of regulating lifestyle choices, such as tobacco use, excessive use of alcohol, unhealthy diets and lack of physical exercise. In his opening essay, Nudging Healthy Lifestyles, Adam Burgess provides a critical assessment of the introduction of behavioural, nudging approaches to correct lifestyle behaviours in the UK. His thought-provoking analysis triggered a lively debate that has been framed along the subsequent essays signed by On Amir and Orly Lobel, Evan Selinger and Kyle Powys White, Alberto Alemanno and Luc Bovens. Each of these essays critically reflects upon the effectiveness as well as legitimacy of ‘nudging’ approaches.

Département Droit et Fiscalité

In recent decades, governments across the world actively cooperated to harmonize and coordinate policies “behind the borders” through a variety of harmonization efforts at multilateral, as well as regional and bilateral, levels. These efforts have been dictated by the trade liberalization agenda, which perceives domestic regulatory action as a factor impeding international trade. While the WTO has been successful in removing barriers to trade at the border, it is proving less effective in the fight against non-tariff barriers (NTBs), today’s most prominent obstacles to trade exchanges. Given the current inability of the WTO to effectively address such concerns, some countries seem willing to go beyond traditional international treaty making and to explore new avenues of cooperation. The emerging phenomenon of “horizontal regulatory cooperation,” i.e., cooperation on crosscutting issues such as risk assessment, impact assessment, and cost-benefit analysis, seems to offer a promising venue for overcoming regulatory divergence. It relies on the assumption that substantive regulatory convergence can be facilitated by convergence of the general way in which regulators approach standard setting. At a time of growing international interest and policy diffusion of cost-benefit analysis, this chapter explores whether cost-benefit analysis could be used to promote rationality in regulatory decisionmaking beyond the nation-state. In so doing, it draws on the recent experience of international regulatory cooperation of some industrialized countries and examines the extent to which developing nations may be willing and able to participate in this cooperation exercise.

Département Droit et Fiscalité

Although few citizens outside of the livestock industry have heard about this veterinary drug, ractopamine is set to become not only the source of public concern but also the trigger of another endless transatlantic trade dispute. After years of scientific and political deadlock, the Codex Alimentarius Commission (CAC) narrowly voted, on July 5, 2012 to adopt the first-ever maximum residue levels for ractopamine hydrochloride, a controversial veterinary drug used in animal feed that boosts growth and promotes leanness in pigs and cattle. The high polarization on the political acceptability of the substance as well as the politicization of its underlying science that have accompanied the discussions within Codex are likely to weaken the legitimacy and overall effectiveness of the adopted standard on the multilateral global food safety governance. In particular, this decision, by making it easier for the U.S. and others to challenge countries like China, the European Union and Taiwan for having zero tolerance policies for ractopamine residues in meat products, is likely to lead the World Trade Organization to judge against those countries that ban the use of ractopamine. Yet this likely outcome begs the question of whether the weight of an international standard adopted with a one vote difference could realistically be considered tantamount to one adopted under consensus. Under these circumstances, ractopamine is set to become the source of another endless transatlantic trade dispute and a test case for the embryonic and fragmented global food governance system.