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Germany

Participatory Creation of Regulatory Policy (DE0023)

Overview

At-a-Glance

Action Plan: Germany Action Plan 2019-2021

Action Plan Cycle: 2019

Status: Active

Institutions

Lead Institution: Federal Chancellery and relevant ministries

Support Institution(s): All federal ministries; the Federal Chancellery (Citizen-Centred Government and Digital State Divisions) Federal Government Commissioner for Culture and the Media, Federal Office of Justice (Promulgation Division)

Policy Areas

Democratizing Decision-Making, Public Participation, Regulatory Governance

IRM Review

IRM Report: Germany Transitional Results Report 2019-2021, Germany Design Report 2019-2021

Starred: Pending IRM Review

Early Results: Marginal

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information , Civic Participation

Potential Impact:

Implementation i

Completion:

Description

What is the public problem that the commitment will address?
To preserve the high quality of our law, we need to further develop it systematically and
cautiously, also with a view to future requirements. In some cases, provisions are not
perceived as feasible in practice. Law should be made simple, understandable and effective.

What is the commitment?
The Federal Government wants to listen from an earlier stage, work together more closely
with people affected by measures, and test out measures before adopting them. The
Federal Government’s steadfast aim must be to understand clearly what its new regulations
mean in terms of the effort they require from individuals, companies and authorities (e.g.
practicability and efficacy). It also wants to make regulations more comprehensible and
more accessible (e.g. the editorial staff for legal language should be involved at an earlier
stage).

How will the commitment contribute to solving the public problem?
Exchange with those affected by and involved in regulations is of vital importance for better
regulation.

Why is this commitment relevant to OGP values?
By strengthening early participation in and testing of regulatory initiatives, the Federal
Government will more effectively involve affected citizens in its decision-making processes.
Bolstering the editorial staff for legal language and introducing electronic promulgation of
laws will make law easier to understand and more accessible.

IRM Midterm Status Summary

8. Better regulation through participation and testing

Main Objective

“The Federal Government wants to listen from an earlier stage, work together more closely with people affected by measures, and test out measures before adopting them. The Federal Government’s steadfast aim must be to understand clearly what its new regulations mean in terms of the effort they require from individuals, companies and authorities (e.g. practicability and efficacy). It also wants to make regulations more comprehensible and more accessible (e.g. the editorial staff for legal language should be involved at an earlier stage).”

Milestones

8.1. Development of a strategy to strengthen early participation in policy initiatives and legislation on the basis of positive practical examples such as the establishment of central consulting hours to advise ministries on participation projects and an interministerial network on participation in legislation to facilitate experience sharing.

8.2. Practical testing of regulatory alternatives in suitable cases with affected individuals, companies and participating agencies or bodies responsible for self-administration tasks. At least five practical tests or pilot projects (e.g. to make laws comprehensible in cooperation with the legal editorial office of the Federal Ministry of Justice and Consumer Protection)

8.3. At least eight training courses for employees on early participation and testing (including on “Understanding, Developing, Testing” – Division 612, Citizen-Centred Government – and on early participation)

8.4. Evaluation of the results of the 3rd Life Situation Survey of the Federal Statistical Office on behalf of the Federal Government and derivation of suggestions for improvement together with experts, practitioners and affected people; publication of the results (online and offline)

8.5. Electronic promulgation of laws and free digital access to the Federal Law Gazette are in the process of implementation

8.6. Improvement of information about participation processes at federal level via an online presence and preparations for a Federal Government participation platform that serves the transparent participation of citizens and associations

Editorial Note: For the complete text of this commitment, please see Germany’s action plan at: https://www.opengovpartnership.org/wp-content/uploads/2019/09/Germany_Action-Plan_2019-2021_EN.pdf.

Commitment Analysis

This commitment consists of activities selected from the federal government’s 2018 Work Program on Better Regulation and Bureaucracy Reduction. [59] It seeks to improve the accessibility and user friendliness of laws, as well as the timeliness and inclusivity of public participation in the rule-making process. [60] Expanding public participation in rule making is directly relevant to the OGP value of civic participation. Moreover, making laws and regulations more comprehensible and freely available online is relevant to access to information.

Citizens and businesses in Germany report a relatively high level of satisfaction about the integrity, trustworthiness, and fairness of administrative services. However, they are rather critical about the understandability of laws, regulations, and administrative processes. [61] Additionally, national and international observers note that Germany can do more to involve stakeholders in the early stages of the rule-making process and work toward a more inclusive and participatory policy-formation process. [62] In comparative assessments of regulatory processes in 2018, referring to the state of play in 2017, the country scores above the OECD average on impact assessments and ex-post evaluations, but below the OECD average on stakeholder engagement in developing regulations. [63] The joint discussion with stakeholders of results from the 3rd Life Situation survey (Milestone 8.4) repeat an activity that was conducted between December 2017 and June 2018 when multistakeholder workshops discussed results of the 2nd Life Situation survey. Six concrete suggestions from the workshops were adopted by the government. [64]

As outlined above, the comprehensibility of rules and administrative processes is important for both citizens and business in Germany. Beyond streamlining administrative procedures, simplifying laws is a prerequisite for inclusive democracy. When laws and regulations are incomprehensible to all but specialized experts, trust in democracy can drop [65] and the practicality of their legislative outputs suffers. [66] Forty-percent of Germans report that they consult the texts of laws when they face a legal issue. [67] Developing a strategy for early participation in policy initiatives (Milestone 8.1), and training government officials on public participation (Milestone 8.3) could improve public involvement in policymaking.

It is important to test public comprehension of draft rules and simplify legal language (Milestone 8.2) as well as use public feedback to improve the user-friendliness of administrative procedures (Milestone 8.4). However, any improvements will depend on the scale of the planned activities. The stipulation of a minimum of eight training programmes are unlikely to affect large-scale change.

Currently, the full text of enacted laws and regulations are available online at a number of different official and unofficial websites, but related cross-links and amendments can be difficult to trace. Free electronic access to the Federal Law Gazette is an important step toward improving accessibility to a comprehensive source of the official laws of Germany, provided the focus of implementation is on user-friendliness (Milestone 8.5).

Taken together, these activities could improve participation in rule-making as well as in access to and usability of legal information. It could also strengthen the institutional capacity to adopt public comprehension as a tenet for forming rules and regulations and thus build on the recent trend to subject a growing set of draft rules and regulations to a readability check. [68] While most of the commitment’s activities are pilots, they could lay the foundation for expansive improvements in the future. Also, if the participation platform not only facilitates participation but does so in a way that enables public consultations earlier and in a more inclusive manner, the possible changes from the commitment could be significant.

During implementation, the Federal Chancellery could encourage ministries to add explanatory notes to legal texts and develop user-friendly guides on the scope of laws. It could also encourage ministries to develop their own guides on how to participate in the early stages of planning new laws, particularly during the pre-drafting time.

[60] For the online presentation of the overall work program, see: https://www.bundesregierung.de/breg-de/themen/wirksam-regieren.
[61] Destatis, “Lebenslagenbefragung 2019: 83 % der Bürgerinnen und Bürger sowie Unternehmen mit Behörden zufrieden” [Life situation survey 2019: 83% of citizens and companies satisfied with authorities] (2020), https://www.destatis.de/DE/Presse/Pressemitteilungen/2019/12/PD19_461_p001.html.
[62] OECD, Regulatory Policy Outlook 2018 “Germany” (2018), http://www.oecd.org/gov/regulatory-policy/germany-country-note-regulatory-policy-2018.pdf; Nationaler Normenkontrollrat and McKinsey & Company, Erst der Inhalt, dann die Paragrafen. Gesetze wirksam und praxistauglich gestalten [First the content, then the paragraphs. Make laws effective and practical] (Oct. 2019); see also Section II of this report; see also Dieter Zinnbauer, Independent Reporting Mechanism (IRM): Germany Implementation Report 2017–2019 (OGP, 27 Jul. 2020), 23−24, https://www.opengovpartnership.org/documents/germany-implementation-report-2017-2019/.
[64] Bundesregierung, Bessere Werkzeuge für besseres Recht [Better tools for better right] (Jun. 2019), 16−17, https://www.bundesregierung.de/resource/blob/997532/1638896/2c78a8f4b56441947308ac354339315e/2019-0619-bericht-buerokratieabbau-data.pdf?download=1.
[65] B. Lutz, “Plain language: an important basis of e-democracy and open government” in Conference for E-Democracy and Open Government (May 2016), 165.
[66] Ruth Sullivan, “The promise of plain language drafting,” McGill Law Journal 47, no. 1 (Nov. 2001): 47, 97.
[67] Bundeskanzleramt, “Recht verständlich machen Untersuchung zur Verständlichkeit von Rechtstexten Zwischenergebnisse – Bevölkerungsrepräsentative Befragung” [Make it understandable Examination of the comprehensibility of legal texts Interim results - population representative survey] (2017), https://www.bundesregierung.de/resource/blob/975272/317254/03239f11929ea4f421f76f599a439362/de-verstaendlich-download-bericht-online-data.pdf?download=1.

IRM End of Term Status Summary

Commitment 8. Better regulation through participation and testing

Substantial:

Aim of the commitment

This commitment aimed to improve the accessibility and user friendliness of laws, as well as the timeliness and inclusivity of public participation in the rule-making process.

Did it open government?

Marginal

To achieve Milestone 1, the Federal Chancellery designed a strategy to strengthen participation through a mix of support by the Federal Government and the Chancellery, as well as decentralized initiatives by ministries. This strategy was based on a survey on existing participatory practices across ministries. [23] In 2019, the Chancellery put in place a team within the division 613 “better legislation; reduction of bureaucracy” (Referat 613 “Bessere Rechtssetzung, Geschäftsstelle für Bürokratieabbau”) to offer strategic advice for ministries and facilitate the exchange of best practices among them. The Chancellery published an internal checklist for employees in ministries, listing success factors of early participation in the rule-making process. [24]

To accomplish Milestone 2, division 612 “Citizen-Centered-Government” (Referat 612 wirksam regieren) [25] in the Chancellery organized focus groups, surveys, in-depth interviews, and user tests for different policy areas. Together with citizens and ministries, division 612 worked on projects to foster the use of flexible pensions, [26] to improve knowledge of how to secure online accounts, [27] to reduce the complexity of the digital application process for parental allowance, [28] as well as improvements for a simplified tax form for retired people. [29] According to a representative in the Chancellery, the flexible pension project has shown that knowledge about flexible pension schemes is relatively low in the target group and that many people have reservations to apply for flexible pensions because they consider the resulting deductions from their pension payments to be too high. Other projects resulted in a proposal of a set of tools to help people use more secure passwords, a simplified digital application process for parental allowance, [30] and proposals to further simplify tax forms for retired people. [31] In a project with the Federal Ministry of Justice, division 612 ran a survey to understand common problems citizens have with the understandability of the law. [32]

As a result of the flexible pension project in 2021 various online formats for better information about flexible pension schemes were designed and tested with citizens. In 2022 there has been an ongoing trial to test the efficacy of different tools to help people use secure online accounts. The simplified application process for parental allowances was launched in August 2020, and local tax administrations reported that the simplified tax form for retired people reduced information requests. The application process is further refined as part of the Online Accessibility Law (Onlinezugangsgesetz).

For Milestone 3, divisions 612 and 613 developed trainings and seven online courses on early involvement in legislation and citizen-centered regulation. 300 employees from various ministries took part in the first training course of division 612, organized to inform the employees of the ministries about methods to foster a citizen-centered government approach. Due to COVID-19, the second course cycle was postponed. These courses will continue in order to expand the scope and usage of current methods for citizen-centered regulations. [33]

As part of Milestone 4, the Federal Statistical Office Germany conducted the third Life Situation Survey. It found that citizen satisfaction with the understandability of German laws has declined compared to 2019. [34] In response to the survey, the Chancellery collaborated with ministries to identify topics to analyze further, including how to improve job postings at the employment agency and corporate tax returns. The coalition agreement of Germany’s newly formed government stated that the government will improve the understandability of the law and will improve the transparency of the law-making process. [35] The goal of Milestone 4, the implementation of an electronic Federal Law Gazette, is expected to be finished by 2023. So far, a draft law was published to establish the legal basis for its implementation. [36]

For Milestone 5, the Chancellery has published two webpages [37] listing opportunities for public participation in law-making and linking to existing legislative texts, as well as current opportunities for participation in legislative processes at the federal level, the EU, and the OECD. [38] Both pages link to external websites and are mostly informative and static. Though not a milestone of this commitment, a stand-alone participation portal is planned for 2022, according to the self-assessment report.

The implementation of this commitment suggests continued interest in citizen-centered regulation among leadership and staff within the Chancellery and ministries. However, several key milestones, such as the electronic Federal Law Gazette, have not yet been implemented. Also, while four out of the five planned tests were accomplished in Milestone 2, they did not include regulatory trials to improve understandability. Therefore, the implemented measures reflect incremental improvements and a marginal, but visible uptake of participation formats in regulation.

[23] The strategy is not publicly accessible. The IRM researcher based the assessment of the strategy on statements by a representative of division 613 of the Federal Chancellery as well as the following chapter thematizing the strategy: “Die Bundesregierung stärkt die frühe Beteiligung Betroffener bei der Gesetzgebung und politischen Initiativen”, https://www.bipar.de/kursbuch-buergerbeteiligung-4/
[24] The representative of the Federal Chancellery provided this checklist to the IRM researcher internally. 
[25] This department exists within the Chancellery since 2015, for more information, https://www.bundesregierung.de/breg-de/themen/wirksam-regieren/arbeitsweise
[30] The updated application form has been available since August 2020, https://www.elterngeld-digital.de/ams/Elterngeld 
[31] According to the representative at the Chancellery, the project was continued as part of the online advisory tool “Steuerlotse Rente”, https://www.steuerlotse-rente.de/ where tax forms are currently further improved.
[33] Information for Milestone 3 is based on an interview with a representative of the Federal Chancellery.
[34] The survey highlights this point as part of its 10 key insights, 2021, https://www.amtlich-einfach.de/DE/Ergebnisse/Buerger2021/Ueberblick_node.html
[35] See the coalition agreement “Mehr Fortschritt Wagen. Bündnis für Freiheit, Gerechtigkeit, und Nachhaltigkeit”, p. 9-10.

Commitments

Open Government Partnership