This paper connects and disentangles three interrelated concepts: citizens’ participation; erulemaking (in a deliberative environment) and effective policymaking at the EU level. We critically evaluate public participation under the revamped 2015 ‘Better Regulation Agenda’ by focusing on the public consultations tool; examining it through the lens of deliberative democratic legitimacy; and assessing its potential to be more deliberative following the legitimacy evaluation framework of Schmidt (2013). The paper employs an innovative theoretical approach, which blends deliberative democracy, e-rulemaking with EU studies insights. Furthermore, it introduces a new legitimacy criterion we call ‘functional legitimacy’ which refers to an overarching principle and evaluative framework that should govern erulemaking initiatives from their design through implementation and evaluation. We examine the preconditions for e-rulemaking at the EU level on the principles of transparency, inclusiveness and evidence-based policy making.