Limited Politicisation: Strengthening, Not Undermining, Economic Regulation in the EU

The article revisits the idea that non-majoritarian institutions, broadly understood as governance arrangements that delegate the pursuit of constitutionally pre-set goals to bodies insulated from politics, are apolitical and technocratic. To do so, it draws on scholarship exploring the links between delegation and politicisation, as well as scholarship emphasising the experimentalist features of policymaking by independent regulators. The paper argues that limited politicisation of the regulatory process can strengthen independent economic regulation in the EU. Limited politicisation is enabled via substantive concepts and doctrines that allow for a plurality of interests, goals, and perspectives to permeate the enforcement of rules that are apparently narrowly directed to a single objective, as well as procedural arrangements that allow for stakeholder participation or periodic revision of regulatory solutions. These doctrines and mechanisms have become pervasive in EU economic regulation, as illustrated by examples from EU competition law. While they politicise the regulatory process, thus strengthening the democratic credentials of economic regulation, said arrangements need not undermine the non-majoritarian character of the institutions deploying them and the effectiveness of their regulatory action. As such, limited politicisation may allow regulators to resist pressures from elected officials, proving useful at times of backlash against NMI’s independence and growing authoritarianism. This article is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.