Codifying Better Regulation: Constitutional Requirements and Reform Proposals

The EU Commission's Call for Evidence on its Communication on Better Regulation extends beyond a technical consultation on how the Commission prepares its legislative proposals. It indicates the Commission's intention to institutionalise the expedited methods used to prepare the 2025 omnibus packages, turning ad hoc departures from Better Regulation into standard practice. These packages combined substantial policy reforms across sustainability, environmental protection, food safety, and digital rights while bypassing standard procedural safeguards, such as public consultation and impact assessment, thus testing the constitutional limits of EU lawmaking. The European Ombudsman's November 2025 finding of maladministration, citing insufficient justification for claimed urgency, inadequate consultation, and failure to document necessary climate assessments, should encourage reflection rather than solidify these departures. The adoption of streamlined procedures exposes a fundamental tension at the core of contemporary EU governance. On the one hand, there is the need for responsive, efficient policymaking in the “volatile geopolitical environment” outlined in this Call for Evidence. On the other side is the commitment to evidence-based, participatory, and proportionate lawmaking, which forms the procedural element of the rule of law under Article 2 TEU. This submission rejects the idea that these imperatives are opposed. The procedural safeguards integrated into Better Regulation exist not as barriers to good governance but as essential conditions for it. Evidence-based assessments ensure that regulatory decisions are grounded in facts. Stakeholder consultation enriches the decision-making evidence base. Fundamental rights screening guarantees that constitutional values are preserved and not sacrificed to political expediency. Far from hindering effective governance, these procedures support it, making legislation more likely to meet its aims, less prone to unintended consequences, and more legitimate in the eyes of those affected. Legislation passed without sufficient evidentiary support risks being ineffective, illegitimate, and potentially invalid under EU law. These procedural standards mirror those the EU enforces externally under Article 7 TEU and the Conditionality Regulation, deriving from the same constitutional sources. The effectiveness and legitimacy of external rule-of-law enforcement depend on demonstrating that procedural requirements, adequate consultation, evidence-based decision-making, and transparent legislative processes operate as binding constitutional obligations for all EU actors. Codifying Better Regulation safeguards would serve dual constitutional purposes: ensuring EU institutional compliance with Treaty obligations and strengthening the normative framework for external rule-of-law conditionality. The solution is not to abandon procedural safeguards but to codify them. The Better Regulation framework should establish objective, legally binding criteria for when expedited procedures, such as limiting consultation or omitting impact assessments, are constitutionally permissible. The Interinstitutional Agreement already requires “objective justifications based on substantive link” for bundled delegated acts. Omnibus legislation requires analogous discipline: substantive connection between measures, heightened procedural safeguards, and disaggregation when technical simplifications are bundled with policy reversals. The constitutional imperative is clear: the Commission cannot enforce rule-of-law standards against Member States while bypassing the procedural safeguards that operationalise these principles in its own lawmaking.