Pierre Larouche, “Regulatory Space and 21st-Century Dynamics”, in Panos Delimatsis and Giorgio Monti, eds., EU Law and Regulatory Spaces - Essays in Honour of Leigh Hancher (Hart: 2026).
Résumé en anglais:
This contribution revisits Leigh Hancher and Michael Moran’s Regulatory Space in view of twenty-first-century dynamics. The main elements of the regulatory space – private and public stakeholders and the space itself – have come under pressure. As regards firms, the incentives to participate in the regulatory space are no longer as self-evident as they were in Regulatory Space: faced with regulatory spaces that may not be dimensioned appropriately, global firms have disengaged and taken a more passive stance. On the side of public authorities, the main change is the emergence of independent national regulatory authorities (NRAs), out of rule of law considerations, namely impartiality and non-discrimination. NRA separation from higher-level political powers – legislative and executive – does not imply that these powers withdraw from the regulatory space, nor should it; in any event, the NRA remains accountable towards these powers through mechanisms that do not impinge on its independence. However, the rationales underpinning NRA separation do not provide any clue as to how to organise the co-existence and interplay of these two sets of public stakeholders – NRAs and higher-level powers – in the regulatory space. In particular, the concept pair of ‘policy’ and ‘implementation’ is best seen as the two ends of a continuum rather than an operational distinction. In the end, therefore, tensions remain between the respective roles and positions of NRAs and higher-level powers. In the US, these tensions are leading to a roll-back of NRA separation (which was never as strong as in the EU to start with). In the EU, these tensions can be linked with the increased tendency of the EU institutions to resort to legislation as the preferred vehicle for participation in the regulatory space. As a consequence, EU legislation is extended into regulatory intricacies, leading to legislative hubris (overreach) in the worst cases. Finally, market dynamics – induced by innovation – have reduced the distance between commercial and regulatory spaces, if not fused them altogether. For firms, regulation is an integral part of strategic management. For public authorities, access to the market knowledge of private firms is essential to keep the regulatory space relevant. In the end, firms must be more engaged, higher-level political powers must embrace an ethos of self-restraint, and commercial and regulatory spaces must be considered together.