Expert Florentin Blanc: Regulation Should Be a Tool to Achieve Goals, Not a Barrier to Innovation

On 11-12 February, Vilnius University’s Central Palace hosted the international conference “Major Public Risks: Achieving Effective Regulatory Supervision”, where speakers from different countries shared best practices in developing dialogue between the private and public sectors, focusing on expertise and balancing regulation.

Experts from Taiwan, Singapore, Canada, the United Kingdom, the Netherlands, Switzerland, Italy, Belgium, France, Finland, Norway, Estonia, Latvia, Italy, Belgium, France, Finland, Norway, Estonia, Latvia, and Lithuania shared their knowledge at this event. The effectiveness of regulation and its oversight in managing threats in public security, health, environment, energy, and other areas was discussed.

Florentin Blanc, Director of the Institute for Regulatory Innovation, Delivery and Effectiveness of the European Public Law Organisation (EPLO-IRIDE), which is one of the organizers of this event, emphasizes the importance of updating regulations and risk management in a way it would comply with current needs and innovations. He thinks that firstly, we should have an objective, and legislation should enable it. We kindly invite to read an interview with F. Blanc.

After this two-day conference, what is your mind about the successful regulation recipe? What are the ingredients in it?

The key ingredient is to understand what you are trying to do and your objective and start with your objective. And you must think of the law as an instrument. Law is a very precious, powerful instrument. But it should not bring an end to itself. So, you use law; you write laws to reach an objective, and you use these laws to implement this. So it is always important to start with what you are going to reach; from the goal, it can be the safety of people in the building, food, it can be public health, and from there, say ok, if there is a problem, if something is wrong you can use a law to try maybe to make it right. The point is not to implement a law just because it exists.

What do you think? In what areas should regulations be updated? Speaking about the European Union.

Most importantly, a big problem nearly every European country has now, and countries outside as well, is low carbon energies. It is not just an environmental rule; there are many technical and planning rules. So, to explain what happens right now if you want to open a petrol station and tank cars with petrol, you need some permits. It is not impossible; it is relatively clear in the law what you should do; it is a system for it, the space for it in land use, in planning documents. If you try to build a hydrogen fuel station to fill cars with hydrogen instead of petrol, it is nearly impossible because it was never planned, it wasn’t in any of the laws. You are requesting something exceptional, for which people need to make a special decision and make a couple of years of study. And it is like this in a lot of things. It ends up being more difficult to build infrastructure for new energies than old ones. It doesn’t make sense, but it is because we created laws for what we used in the past and not for what we want to use now. So, that is the most critical change in regulations.

So we appear in a closed circle, which we can’t leave. And if we decide to leave, it will cost too much.

It is not costly. In fact, it is quite strange because people don‘t realize that this problem exists. Most people making energy policies have not looked at the legal framework or other regulatory problems. And for people dealing with regulations on planning land use or safety permitting, their job is to look at the rule, not the result. No, it is not written there, I can’t do it. They don‘t think – is it more dangerous than a previous one? No, it is not, so I can do it.
The problem is to understand that you have a problem and start working on legislation. Usually, you would say well, we have created legislation, and that will enable us to do things because we have created it. Here, we completely forgot, so we are in a situation where we started planning the money and all the big plans, and then actually, very little is happening in comparison because the laws are there.

Speaking about regulatory laws, how can we understand there is too much of them and that bureaucracy has grown too much? How can we understand that there are too many laws and regulations and bureaucracy?

It is always difficult to say what is too much and what is too little. It is normal that there are more rules than in the past. The big increase of technical rules in everything dates from the 1960s to the 1970s, and it is normal because industry developed, technology, science, economy, everything. So, there were many new things, risks, and expectations. People expect more safety, more protection, etc. And so, we created rules. The problem is when rules are interpreted in a way that is so rigid. It is not so often rules as an understanding of the rules and implementation of the rules. This is what our work is all about. It is what we call a delivery – how you take this rule and make something out of it. For instance, we have two problems; I mean, all problems are linked to understanding risks. One is – bureaucracies that look at one risk, like – I am responsible for compliance with respect to planning rules. Climate change, disaster – I don‘t care. My rules say You can’t put your thing there. Yes, but it will save the country from dependence on Russian energy, decrease pollution, and make people healthier. No, it is not planned. It is a bad bureaucracy. Why? Because it does not understand the context, the big picture, and the goal, and “it is not in my book.” I will take another example: it is when people are obsessed with the particle of safety or risk in their little thing. Nuclear power plants could be dangerous. Yeah, it could be, everything could be dangerous. Actually, the real probability of the accident is zero point and so many zeroes. But it could provide you an energy without pollution. But instead of looking for balance, we are looking by tunnel vision. So that is one big problem.

The second is that, gradually, we are progressing in how regulators and professionals understand laws and regulations, let‘s say people who are dealing with the environment, food, etc. and people who are in this conference. However, we lack a change in the broader legal professional understanding. And that is why it is interesting to connect it to law in particular. And it is not only in Lithuania, it is elsewhere as well. Lawyers tend to be mostly educated without much learning about food or environmental law. They come at it with an absolutist vision they have learned in all fields. I have seen it in Lithuania and Italy; prosecutors would take a few of every violation of environmental law; food law is the same violation as criminal law if you kill someone. Then they are aggravating circumstances, if you kill a person like this, it is even worse. But it is always basically one rule – you should not kill people. It is really easy to remember. Points of control of safety in a food factory, there are hundreds of them, thousands of places in your factory where potentially at any moment something could be a little bit wrong because someone didn‘t do a cleaning yet, a person is late, or a fridge stopped working correctly or thermometer stopped working correctly, and you have not replaced it yet, because you didn‘t yet check it or you may be in the process of checking your factory, but you haven‘t done it yet. I have seen different prosecutors and judges who would be like, meh, I don‘t care; it was regarded that you were not competent at the moment, it is a violation, and we will prosecute you. This is dumb because you didn‘t have an intention to violate it, you didn‘t have an impact. Yes, you did a violation. But it was a technical failure at some point. So it is very important to understand that some parts of law are relatively simple, and lawyers, of course, will tell you that they are not simple. But they do not have thousands of points that you have to be checking in every time. To be driving safely, you have to combine rules: you have not be drunk, your car has to pass the technical inspection, and you need to respect the speed limit, wear a safety belt, and have a driver’s license. To be in compliance with all food safety rules in a food factory, you have thousands of control points, thousands of control points for the environment, and hundreds of control points for occupational safety. You don‘t check all of them all the time. You check the system, you check things regularly. Sometimes, some things in an industrial process will be slightly off, but this is actually normal. So what good regulators and inspectors need to do is to check in general if you are doing well: are you taking care of maintenance, are you taking care of correcting problems, and if sometimes something is a bit off, it is not a big problem. But a lot of prosecutors and judges don‘t understand it. So, we need more education for lawyers to understand the right regulation model.

Previously, you mentioned nuclear power and that countries are afraid of it because of its danger, even if the possibility of an accident is not very high. Mainly, does it often happen that fear stops us from innovations and simpler decisions?

In general, yes. I think you have a lot of areas where it happens. Some are linked to safety. As I mentioned, it is very frequent in energy. We have this with nuclear energy and hydrogen. People even are afraid of windmills.

We also have this strange fear of corruption. People create incredibly complicated systems of rules for public procurement, spending, etc. All public institutions have to go through so many rules that, in the end, you generally pay more for everything than the normal buyer, you get worse service, and it takes 5 years instead of 5 months. All of this is to try to prevent corruption. It is not the way because corrupt people don‘t respect rules, they don‘t care, and they will find a solution. Actually, more bureaucratic countries have more corruption, and they try to fight it with more bureaucracy. We often need to accept that clearly accepted flexibility is not corruption. You can audit it and check if you spent it right etc. Instead, we have thoughts that very rigid systems will protect us, and it is not true.

Organisers of the event: European Public Law Organisation – IRIDE, Law Faculty of Vilnius University, Environmental Protection Department of Lithuania (AAD), State Food and Veterinary Service of Lithuania (VMVT), Association of Supervisory Institutions of Lithuania (PIA).

Partners of the event – Law Firm COBALT and Nordic Council of Ministers Office in Lithuania.