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Current regulatory approaches are ill-equipped to address the challenges of governing through periods of disruptive technological change. This article hones in on the use of assessment regimes at the level of the European Union, particularly in the work of the Commission, to argue for a missing middle between technology assessment and impact assessment. Technology assessment focuses on the upstream governance of science and technology, while impact assessment focuses on the downstream governance of the impacts of specific policy options. What is missing is a form of midstream governance, which I label innovation assessment, to steer polities through periods of disruptive technological change, during which innovations have taken concrete forms and are beginning to diffuse, but still exhibit much scope for rapid, unexpected change and alternative trajectories of development. By juxtaposing these three forms of assessment regimes, I define the main dimensions along which they vary.

The European Commission has recognised the importance of a more innovationoriented EU acquis, gradually exploring the ways in which EU rules can support innovation. The ‘innovation principle’ was introduced to ensure that whenever policy is developed, the impact on innovation is fully assessed. However, as further discussed in this Study, the exact contours of the innovation principle have been shaped very gradually within the context of the EU better regulation agenda: originally advocated by industry in the context of the precautionary principle, the innovation principle has gradually been given a more articulate and consistent role, which aims at complementing the precautionary principle by increasing the salience of impacts on innovation during all phases of the policy cycle. This Study presents an evaluation of the current implementation of the innovation principle, limited to two of its three components, i.e. the Research and Innovation Tool included in the Better Regulation Toolbox, and the innovation deals. As a preliminary caveat, it is important to recall that the implementation of the innovation principle is still in its infancy, and thus the Study only represents a very early assessment of the extent to which the innovation principle is being correctly implemented, and whether changes would be required to make the principle more effective and useful in the context of the EU better regulation agenda. The main finding is that the innovation principle has the potential to contribute to the quality and future-proof nature of EU policy, but that significant changes and effort will be needed for this potential to fully materialise. The most evident areas for improvement are related to the lack of a clear legal basis, the lack of a widely acknowledged definition, the lack of awareness among EU officials and stakeholders, and the lack of adequate skills among those that are called to implement the innovation principle. As a result of these problems, the impact of the innovation principle on the innovation-friendliness of the EU acquis has been limited so far. The Commission should clarify in official documents that the Innovation principle does not entail a deregulatory approach, and is not incompatible with the precautionary principle: this would also help to have the principle fully recognised and endorsed by all EU institutions, as well as by civil society, often concerned with the possible anti-regulatory narrative around the innovation principle in stakeholder discussions. Apart from clarifications, and further dissemination and training, major improvements are possible in the near future, especially if the innovation principle is brought fully in line with the evolving data-driven nature of digital innovation and provides more guidance to the Commission on how to design experimental regulation, including inter alia so-called ‘regulatory sandboxes’. Finally, the Commission should ensure that the innovation principle is given prominence with the transition to the Horizon Europe programme, in particular due to the anticipated launch of ‘missions’ in key domains.

In recent years competent authorities in the EU have adopted various initiatives to facilitate financial innovation. These initiatives include the establishment of ‘innovation facilitators’. Innovation facilitators typically take the form of ‘innovation hubs’ and ‘regulatory sandboxes’. Innovation hubs provide a dedicated point of contact for firms to raise enquiries with competent authorities on FinTech-related issues and to seek non-binding guidance on regulatory and supervisory expectations, including licensing requirements. Regulatory sandboxes, on the other hand, are schemes to enable firms to test, pursuant to a specific testing plan agreed and monitored by a dedicated function of the competent authority, innovative financial products, financial services or business models. In this report the European Supervisory Authorities (the ESAs) set out a comparative analysis of the innovation facilitators established to date in the EU, further to the mandate specified in the European Commission’s March 2018 FinTech Action Plan.The ESAs also set out ‘best practices’ regarding the design and operation of innovation facilitators, informed by the results of the comparative analysis and the experiences of the national competent authorities in running the facilitators. The best practices are intended to provide indicative support for competent authorities when considering the establishment of, or reviewing the operation of innovation facilitators. Accordingly, the best practices are intended to promote convergence in the design and operation of innovation facilitators and thereby protect the level playing field. The ESAs also set out options, to be considered in the context of future EU-level work on innovation facilitators, including in conjunction with the European Commission’s future work, to promote coordination and cooperation between innovation facilitators and support the scaling-up of FinTech across the EU. These options comprise: • the development of Joint ESA own-initiative guidance on cooperation and coordination between innovation facilitators; • the creation of an EU network to bridge innovation facilitators established at the Member State level. The ESAs will continue to monitor national developments regarding innovation facilitators and take such steps as are appropriate to promote an accommodative and common approach towards FinTech in the EU.

Il presente articolo illustra le sinergie che potrebbero essere ottenute dall’utilizzo di alcuni indicatori del Benessere equo e sostenibile (Bes) all’interno dei processi di Analisi d’impatto della regolazione (Air) e di Valutazione d’impatto della regolazione (Vir). Uno dei limiti spesso attribuiti alle Air e alle poche Vir realizzate nel nostro paese, infatti, è quello di valutare (nella migliore delle ipotesi) le opzioni prendendo in considerazione soltanto stime qualitative dei loro impatti, tralasciando di effettuare stime quantitative. I motivi di tale limite sono diversi, non ultimo la scarsa dimestichezza della nostra classe dirigente con strumenti di analisi valutazione delle politiche pubbliche. La crisi economica e lo stato dei conti pubblici, che, soprattutto in tempi recenti, hanno ridotto le possibilità di scelta dei decisori pubblici, chiamandoli ad una maggiore responsabilità nella scelta di dove destinare le sempre più scarse risorse pubbliche, impongono tuttavia di far ricorso a strumenti di better regulation che consentono di aumentare la qualità delle politiche pubbliche. Il ricorso ad alcuni indicatori del Bes, nonché la possibilità di elaborarne alcuni nuovi e ad hoc, potrebbero permettere, almeno nel breve periodo, di effettuare Air e Vir basate sulla stima quantitativa degli effetti delle regolazioni e, perciò, più efficaci e precise.

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Recently both the Bank of England and the Financial Conduct Authority have carried out experiments using new digital technology for regulatory purposes. The idea is to replace rules written in natural legal language with computer code and to use artificial intelligence for regulatory purposes. This new way of designing public law is in line with the government’s vision for the UK to become a global leader in digital technology. It is also reflected in the FCA’s business plan. The article reviews the technology and the advantages and disadvantages of combining the technology with regulatory law. It then informs the discussion from a broader public law perspective. It analyses regulatory technology through criteria developed in the mainstream regulatory discourse. It contributes to that discourse by anticipating problems that will arise as the technology evolves. In addition, the hope is to assist the government in avoiding mistakes that have occurred in the past and creating a better system from the start.

Innovations in networked digital communications technologies, including the rise of ‘Big Data’, ubiquitous computing and cloud storage systems, may be giving rise to a new system of social ordering known as algorithmic regulation. Algorithmic regulation refers to decision-making systems that regulate a domain of activity in order to manage risk or alter behaviour through continual computational generation of knowledge by systematically collecting data (in real time on a continuous basis) emitted directly from numerous dynamic components pertaining to the regulated environment in order to identify and, if necessary, automatically refine (or prompt refinement of) the system’s operations to attain a pre-specified goal. It provides a descriptive analysis of algorithmic regulation, classifying these decision-making systems as either reactive or pre-emptive, and offers a taxonomy that identifies 8 different forms of algorithmic regulation based on their configuration at each of the three stages of the cybernetic process: notably, at the level of standard setting (adaptive vs. fixed behavioural standards); information-gathering and monitoring (historic data vs. predictions based on inferred data) and at the level of sanction and behavioural change (automatic execution vs. recommender systems). It maps the contours of several emerging debates surrounding algorithmic regulation, drawing upon insights from regulatory governance studies, legal critiques, surveillance studies and critical data studies to highlight various concerns about the legitimacy of algorithmic regulation.

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