Conference on Nudging in Europe: What can EU Law learn from Behavioural Sciences? Liège 12 and 13 December 2013

Last week I had the pleasure of attending a two-day conference in Liège entitled  ‘Nudging in Europe’, together with fellow M-EPLI fellows Catalina Goanta and Mark Kawakami as well as M-EPLI Director Jan Smits, who was chairing both the first and the last of the constituent panels. The conference was organised by Alberto Alemanno and Anne-Lise Sibony, Professors of EU Law at HEC Paris and Liège University respectively, and attended by both academics and public officials from various institutions, including the European Commission and EU Ombudsman Office.

For those unfamiliar with the term, ‘nudging’ is a concept of behavioural science according to which the decision-making of individuals can be directed through ‘indirect interventions’ (just) as well as more direct legislative and enforcement measures. In other words, as Richard Thaler (the Professor usually credited with developing nudge theory) puts it, a nudge “is any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives” (Nudge, 2008). An oft-cited example of such an intervention (reference to which was made during the conference) is that of the piano stairway installed in a Stockholm subway station in order to encourage commuters to take the stairs rather than the escalator (and thereby to exercise more).

The potential importance of nudging was stressed in the introduction to the conference as part of the explanation of its overall aim, which was to debate the uses of and issues raised by behavioural insights for the law, and specifically for law-making within the European Union. Hence the conference was of an interdisciplinary nature, providing a platform to discuss how behavioural sciences may be integrated both into EU law-making in general and certain sub-fields of EU law in particular. After the introduction by the conference organisers, the first day began with a panel focusing on normative and legal issues raised by the incorporation of behavioural teachings into the law, which was chaired by Jan Smits, followed by a second panel exploring the question of debiasing through EU law. The day concluded with the start of the sector-specific panel of the conference, which considered the implications arising from the previous panels for various EU policy areas, beginning with that of data protection, including online privacy and web-track technologies. The discussion of the roles behavioural sciences play in different fields of EU law then continued on the second day, first with consumer protection law (including consumer contracts and unfair commercial practices), followed by financial and energy law, and finally competition law.  The conference concluded with a fourth and final panel dedicated to a critical reflection on the difficulties and challenges implicit in ‘behavioural informed regulation’. This was again chaired by M-EPLI Director Professor Smits, who also acted as discussant for Peter Cserne’s paper regarding the limits to EU law’s learning from behavioural sciences.

In terms of the results of the conference, as Professor Alemanno pointed in his summing up, the main outcome was that of raising awareness of how nudging already influences the behaviour of individuals like consumers (for example in the context of fast food), and the potential influence it could have in future in other areas.