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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

Public Participation, Regulatory Governance

IRM Review

IRM Report: Germany Design Report 2019-2021

Starred: Pending IRM Review

Early Results: Pending IRM Review

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information , Civic Participation

Potential Impact:

Implementation i

Completion: Pending IRM Review

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.

Commitments

  1. Participatory Development of Research and Innovation Policy

    DE0022, 2019, Local Commitments

  2. Participatory Creation of Regulatory Policy

    DE0023, 2019, Public Participation

  3. Digital Strategy Pilot for Rural Regions

    DE0024, 2019, Local Commitments

  4. Open Government in North Rhine-Westphalia

    DE0025, 2019, Access to Information

  5. Policy Co-Creation in North Rhine-Westphalia

    DE0026, 2019, Land Rights & Spatial Planning

  6. Data Sovereignty in North Rhine-Westphalia

    DE0027, 2019, Access to Information

  7. Open Government Portal in Saxony

    DE0028, 2019, E-Government

  8. Open-Source Software in Public Administrations in Schleswig-Holstein

    DE0029, 2019, Local Commitments

  9. Regional Open Government Labs

    DE0016, 2019, Local Commitments

  10. Civil Society Consulation on Foreign Policy

    DE0017, 2019, Public Participation

  11. Create Youth Strategy

    DE0018, 2019, Marginalized Communities

  12. Create Federal Agency for Digital Innovation

    DE0019, 2019, Public Participation

  13. Transparency and Participation in International Aid

    DE0020, 2019, Access to Information

  14. Strengthen and Socialize Open Data Policy

    DE0021, 2019, Access to Information

  15. Conditions for OGP Participation

    DE0001, 2017, Public Participation

  16. Open Data in Administrative Practice

    DE0002, 2017, Access to Information

  17. Open Data Environment

    DE0003, 2017, Access to Information

  18. Access to Spatial Data

    DE0004, 2017, Access to Information

  19. Financial Transparency - EITI Standard

    DE0005, 2017, Access to Information

  20. Transparency in Development Policy

    DE0006, 2017, Access to Information

  21. Starred commitment Open Data for Intelligent Mobility

    DE0007, 2017, Access to Information

  22. Citizen Participation in Environmental Policy and Urban Development

    DE0008, 2017, Capacity Building

  23. Electronic Procedures for Family Benefits

    DE0009, 2017, E-Government

  24. Knowledge Network for Lesbian, Gay, Bisexual, Transgender and Intersex People

    DE0010, 2017, E-Government

  25. Local Alliances for Family Initiative

    DE0011, 2017, Public Participation

  26. Share of Women and Men in Leadership Positions, Private and Private Sectors

    DE0012, 2017, E-Government

  27. Open Access to Academic Literature

    DE0013, 2017, E-Government

  28. Science Year 2018

    DE0014, 2017, Public Participation

  29. Federal Competition “Living Together Hand in Hand”

    DE0015, 2017, Citizenship & Immigration

Open Government Partnership