REGULATION IN THE INFRASTRUCTURE SECTOR

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1 REGULATION IN THE INFRASTRUCTURE SECTOR Stephane Jacobzone Counsellor OECD Public Governance and Territorial Development The views are the author s responsibility

2 The evolution of regulatory frameworks Impact of regulatory reform to foster efficient markets & Good governance Synergistic effects amplify gains in individual sectors (Telecommunications, Transport, Energy) Benefits to consumers quality, choice, cost and price Establishing markets for the private sector to provide services previously supplied directly by the state; Strengthening product market competition, and easing the adoption of innovative technologies;

3 Implications for economic efficiency and accountability The assessment has to take into account the impact of three different policies : New regulatory frameworks fostering competition Privatisation: transfer of property rights to the private sector Public Private Partnerships Reforms have many potential pitfalls New regulatory frameworks can be inefficient: monopolistic aspects, regulatory capture, lack of a regulator Privatisation may not be optimally managed from the public purse Public Private Partnership need to be well managed to avoid inefficient transfer of risks All this requires strong governance and accountability, where performance assessment and Supreme Audit Institutions can play a useful role

4 Relations to OECD work Analytical national studies on regulation and governance Country reviews (e.g. Brazil, Mexico, Italy), (24 reviews in total) Analysis of the role of the regulators (regulatory authorities), including in Brazil Analytical work on Public Private Partnerships : Public Private Partnerships in pursuit of risk sharing and value for money Comparative benchmarks and standards Principles for Regulatory Quality and Governance Reference standards for private sector investment in infrastructure, and possibly PPPs (Senior Budget Officials) Comparative data: government at a glance Inputs from Supreme Audit Institutions is a very useful tool for OECD analysis (e;g. Sweden, Norway, Switzerland, Brazil, etc ) (performance audit vs. control).

5 The Brazil Review in the context of the OECD Country Reviews of Regulatory Reform Independent assessment Multidisciplinary approach : Competition Chapter, High Quality Regulation Regulatory Authorities in four core sectors, including 3 in infrastructure: Supplemental Health Insurance Telecommunications Electricity Land Transport Extensive consultation government officials and parliamentarians business and union representatives, consumer groups, and academic experts Standardised report

6 Role and interventions of the SAI in infrastructure regulation 1. Assessing the use of public funds for infrastructure and/or the conditions of privatisation 2. Assessing the regulators 3. Intervention when there is no clear regulator, for example in case of concessions, PPPs (e.g. highways, local public service utilities, water) 4. Assessing regulatory reform more broadly (NAO, GAO)

7 1. Assessing the use of public funds for infrastructure Expenditure on Road and transport infrastructure (e.g. US GAO s assessment of the Recovery Act, efficient use of public funds, reports by the French CC (Cours des Comptes) on transport investment, Costs of nuclear energy (French CC working group) Australian National Audit Office assessment of the Broad band network (cf OECD review of Australia) European court of Audit assessment of EU Rail infrastructure (2010)

8 2. The challenges of understanding and assessing regulators Need to take into account new institutional framework Majone s approach, delegation of regulatory powers in Europe, democratic deficit Need to invent some new paradigm for assessment

9 The choice CONTEXT Self-regulation and competition framework Direct Ministerial Oversight Independent Regulators The rationale Delegating power to a regulator at arms' length from the political system Improving the protection of consumer interest in case of marke failures or other failures Improving transparency and stability High quality staff and technical expertise

10 Assessing quality and the performance of regulators Seminal work by the economist JJ. Laffont and lawer Frison roche for the French Cour des Comptes Three dimensions: legal, judicial review accounting/auditing overall economic assessment: Self assessment Official audits Academic work

11 Regulators as part of the "Regulatory State" Clarifying the functions of the State Public Ownership General rule making (general rules) Enforcing regulation (applying the rules) Consumer protection (quality/market) (and moving away from naïve notions of the General Interest). A challenge to the executive and parliamentary powers A regulator entrusted with regulatory powers, including sanctions, licences, and even some rule making A Government in Miniature? Establishing the legitimacy of a "non majoritarian" institution

12 Recent Trends Independent Regulatory Authorities in OECD Countries Financial Regulators Telecommunication Regulators Energy Regulators

13 A heterogeneous institutional status

14 Analytical framework for OECD reviews Independence and accountability (cf governance audit by TCU) Horizontal architecture Coordination with Competition Authorities Coordination among regulatory authorities Coordination across levels of government Powers Performance assessment Self assessment International organisation NGOs (consumer groups) SAIs

15 Performance assessment is a condition for accountability n A condition of success "non majoritarian" institutions (Majone) Political credibility of the regulator No explicit mechanism for reporting and establishing legitimacy Procedural and political aspects Often demanded by the independent regulators themselves (cf dialogue with Parliament)

16 Ensuring Accountability: How? Systems of checks and balances Transparency and procedural requirements Administrative procedure laws Substantial judicial/legal review: n Appeal mechanisms depend on the legal system : Common Law courts Roman or German law administrative courts, special courts BUT Economic effectiveness of the legal system??

17 Ensuring Accountability n n n Dialogue with citizens and Parliament Annual report, dialogue with Parliament (expertise) Links with consumers' associations High quality regulation Clear Regulatory Impact Assessment, Transparency Predictability Key for industry and for credibility (and implications for the risk governance premium )

18 Mandatory Release of Periodic Assessment Reports on Achievement of Objectives Financial Yes, in annual reports only Telecommunications Yes, other No Energy % 20% 40% 60% 80% 100% Percentage n.a.

19 Lessons from the Brazil study on regulators Economic impact reduction of regulatory risk (energy) Cleaning the market (health insurance) Telecommunications Regulatory framework benefits from healthier macro Impact in relation to objectives Which objectives Trade offs Governance impact Gaps still to be covered Role of ouvidors (disputed)

20 SAIs Interventions in other cases Sectors activities with no clear regulator, Case of concessions, PPPs (e.g. highways, local public service utilities, water, rail) Local public services (utilities) High exposure Highly technical topics vs. high political impact Significant impact for public finances of accounting rules and amortisation Ex Ante versus Ex Post intervention : unique role of TCU

21 PPP Work : 2008 publication Some analytical chapters Italy study on local public services Chapter on land transport in Brazil OECD s Contributions Reference guidelines (new guidelines in preparation for PPPs, Senior Budget Officials) Area under watch (debt debate) Economics of PPPs Initial assessment Budget sccoring and accounting treatment Governance framework: PPP unit, procedural tools, managing the risk of corruption, transparency

22 Need to have an integrated approach Long term contracts: Require long term view and monitoring The beginning isn t everything Opportunity cost of delays impact cost of infrastructure, compounded by legal system (e.g. Italy) Capacity in government PPP units Local government issues Filling the gaps Cost of water, Highway tariffs

23 Example: Roads in Brazil One of the largest networks in the world (1.6 mi.km) Involvement of private capital in road construction: concessions (comparisons with selected OECD and latin american countries) Full deregulation of road freight: drop in prices but issues of safety with smaller companies Quality of the roads: case fatalities Two waves of concessions: Improvements on private roads Bus services: stagnating activity

24 Challenges ahead Pre olympic issues Need for long term transport planning (GEIPOT, PNLT) Lessons from other olympic ventures Model of EPE for transport? Need to rethink articulation: integrated approach to transport, vs fragmented institutions (across sectors, and levels of government)

25 4. Overall assessment of regulatory reform NAO, GAO, ECA, Sweden Assessment of regulators Assessment of government regulatory policy: evaluation of impact assessments US UK, European assessment of RIA Cost versus expenses in burden reduction initiatives and their outcomes Broader economic debate than just infrastructure

26 Conclusions Daily bread of SAI and core area of business Designing independent and effective regulators : The need for high quality regulation in a broad sense Analysis need to respect national institutional settings while adopting international standards In the developed economies, the new fiscal situation of public finances will require closer scrutiny In the emerging economies, rapid growth is creating opportunities which should not be wasted Political momentum of the fight against corruption

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