In a 2016 interview, Daniel Hannan, an MP in the European Parliament, offered the following criticism of the UK’s continued membership in the European Union:
The economic price is not just the £19bn gross (£10bn net) that we hand to Brussels every year—enough to build and equip a state-of-the-art NHS hospital every week. It also takes the form of the regulatory burden that falls on our businesses, especially smaller firms…for we pay both a democratic price and an economic price. The democratic price is that laws are handed down by institutions that no one elects… European commissioners are immune to public opinion, invulnerable to the ballot box.
His attack against over-regulation by Brussels as both an economic drag and a violation of representative democracy neatly echoes conservative and libertarian lamentations over the administrative state on this side of the pond. Far from a Madisonian republic in which the legislative branch “necessarily predominates”, the U.S. Congress has delegated sweeping grants of authority to the executive branch, thereby derogating its constitutional role as the creator of law (with apologies to Randy Barnett and his natural law fellow-travelers). Far from the canard of three “co-equal” branches, the original constitutional ambition was to establish a legislative branch and two derivative branches to respectively execute and exposit the former’s output.
Libertarians argue that excessive regulation is not only violative of democratic principles, it is economically costly to boot. Yet this is only cause for alarm, in Hannan’s case, if the EU is in fact over-regulating. Let’s look at the numbers.
The online EUR-Lex database contains comprehensive measures of EU legal output since 1990. The three principle lawmaking bodies of the EU are the Parliament, the Council, and the Commission. The first two are popularly elected, whereas the Commission is the unelected executive arm, currently headed by Jean-Claude Juncker. EUR-Lex categorizes all legal output from the Parliament and the Council as “legislative” in nature, whereas Commission output constitutes “non-legislative acts”. Each of the three entities may generate three types of output: regulations, directives, and decisions.
Every year, each of these three entities promulgates X number of new regulations, directives, and decisions, and every year Y number of regulations, directives and decisions are either repealed or expire after a sunset period. This means that it’s possible to tabulate the net number of regulations, directives and decisions emanating from each of the three legal bodies each year since 1990, and to then generate a yearly cumulative count of all extant legal acts. And that’s precisely what I’ve done:
First, some limitations on the data. I present only raw numbers, without a measure or word length or number of restrictive words. Thus, it is difficult to translate these trends into the regulatory burden they impose on the private sector. Moreover, because the data begin in 1990, any negative cumulative numbers indicate a net drop from the unknown 1990 baseline, and not the metaphysical absurdity of a negative number of laws!
Caveats duly heeded, the patterns that do emerge are worth commenting on. As we can see, the EU Parliament is the least active of the three bodies. Perhaps these infrequent legislative acts are massive in size, providing the statutory basis for the explosion of executive activity being pursued by the Commission. Whatever the explanation, the trendlines unambiguously demonstrate that the unelected “non-legislative” EU Commission is an order of magnitude more active than its “legislative” peer branches.