Governance and Better Regulation: Dealing with the Legitimacy Paradox

The European Commission adds a rationale of legitimacy to the Better Regulation (BR) programme, which is linked to a governance concept of democratic lawmaking in the context of multilevel government. Nevertheless, BR instruments have been criticized in literature for displaying legitimacy deficiencies. This paper will argue that under certain conditions, BR is a useful strategy to compensate for democratic deficit problems of traditional lawmaking. These conditions relate to quality control in the course of the decision-making process as well as judicial review ex post. The latter implies that the courts act as regulatory watchdogs over the legitimacy of regulatory instruments.