ElectronicjournalofcomparaTiveLaw,vol.9.1(january2005),<http://www.ejcl.org As regards the drafting aspect, numerous proposals have been made 8 and initiatives taken by the Community institutions in order to improve the quality of European legislation In 1997, Declaration no. 39 concerning the quality of the drafting of Community legislation was attached to the Treaty of Amsterdam, pursuant to which the Interinstitutional Agreement on common guidelines for the quality of drafting of Community legislation was adopted on 22 December 1998. 9 In legal writing, it has been considered that these guidelines are still rather limited, compared in particular with national guidelines. 20 More recently, however, it has also been concluded that the existing European guidelines are essentially the same as the national ones and that the eu shares more or less the drafting philosophy of the Member States. The question no longer is considered to be whether the eC drafting rules as such are sufficient, but rather whether they are sufficiently applied. 21 Without going into detail on this, it is clear that the efforts to improve the quality of European legislation continue to be made today. The aforementioned 2002 Commission Action plan "Simplifying and improving the regulatory environmentand the Interinstitutional Agreement on better law-making, published on 31 December 2003 already testify of this, as well as the 2003 Commission Communication" Updating and simplifying the Community acquis'. 23 The Commission considers the Interinstitutional Agreement to be the most ambitious effort undertaken up to now for realising better regulation, by uniting the three decision-making institutions in a joint global strategy to Apart from in the Molitor Report, the UNICE Regulatory Report 1995 and the Deregulation Now Report, these proposals can be found in the Report of the Werkgroep kwaliteit van EG-regeigeving Aandachtspunten en voorstellen(Koopmans Report)and the Rapport Public of the French Conseil d'Etat, Etudes et Documents. 44. 1993 oJ 1999.C73/1. See further inter alia the Council Resolution of 8 June 1993. which contains ten guidelines aga inst which new EC legislation has to be tested(oJ 1993, c 166/1)and the various reports and communications adopted by the Commission; e.g., Better law-making 1995: report of the Commission to the European Council on the application of the principles of subsidiarity and proportiona lity, on simplification and codification, CSE(95)580, Bull. EC 11-1995, point 1.9.2 and the subsequent Better law-making reports COM(1997)626;COM(1998)715;COM(1999)562;COM(2000)772;COM(2001)728;COM(2002)275.See also General guidelines for legislative policy: Communication of 9 January 1996 by the President of the Commission, SEC(95)2255/5; Legislate Less to Act Better: The Facts,, Bull. EU 5-1998, point Institutional Affairs, 1.8.3; Communication from the Commission to the EP and the Council Making single market rules more effective, COM(1998)296 final. For a fairly complete overview of the initiatives taken by the Community institutions to improve the quality of legislation, see H. Xanthaki, The Problem of Quality in El Legislation: What on Earth Is really Wrong?', CMLR 38 (2001)3, p. 615 A. Kellermann et al.(eds ) Improving the quality of Legislation in Europe(The Hague: Kluwer Law International, 1998) Xanthaki(2001), supra note 19, pp. 666-667 and 674 in particular 2003, c European Parliament, Council, Commission, Interinstitutional Agreement on better law-making OJ 321/01. This new Agreement not only completes the aforementioned 1998 Interinstitutional Agreement, but also the Interinstitutional Agreement of 20 December 1994 on an accelerated working method forofficial codification of legislative texts(oJ 1996, C 102/2)and the 200 1 Interinstitutional Agreement on a more structured use of the recasting technique for legal acts(OJ 2002, C77/1) COM(2003)71 final. See on the results of the implementation of this Action plan, COM(2003)623 and SEC(2003)1085 of 24 October 2003(period March-Septem ber 2003)
Electronic Journal of Comparative Law, vol. 9.1 (January 2005), <http://www.ejcl.org/> 6 As regards the drafting aspect, numerous proposals have been made18 and initiatives taken by the Community institutions in order to improve the quality of European legislation. In 1997, Declaration no. 39 concerning the quality of the drafting of Community legislation was attached to the Treaty of Amsterdam, pursuant to which the Interinstitutional Agreement on common guidelines for the quality of drafting of Community legislation was adopted on 22 December 1998.19 In legal writing, it has been considered that these guidelines are still rather limited, compared in particular with national guidelines.20 More recently, however, it has also been concluded that the existing European guidelines are essentially the same as the national ones and that the EU shares more or less the drafting philosophy of the Member States. The question no longer is considered to be whether the EC drafting rules as such are sufficient, but rather whether they are sufficiently applied.21 Without going into detail on this, it is clear that the efforts to improve the quality of European legislation continue to be made today. The aforementioned 2002 Commission Action plan ‘Simplifying and improving the regulatory environment’ and the Interinstitutional Agreement on better law-making, published on 31 December 2003,22 already testify of this, as well as the 2003 Commission Communication ‘Updating and simplifying the Community acquis’.23 The Commission considers the Interinstitutional Agreement to be the most ambitious effort undertaken up to now for realising better regulation, by uniting the three decision-making institutions in a joint global strategy to 18 Apart from in the Molitor Report, the UNICE Regulatory Report 1995 and the Deregulation Now Report, these proposals can be found in the Report of the Werkgroep kwaliteit van EG-regelgeving. Aandachtspunten en voorstellen (Koopmans Report) and the Rapport Public of the French Conseil d’Etat, Etudes et Documents, 44, 1993. 19 OJ 1999, C 73/1. See further inter alia the Council Resolution of 8 June 1993, which contains ten guidelines against which new EC legislation has to be tested (OJ 1993, C 166/1) and the various reports and communications adopted by the Commission; e.g., Better law-making 1995: report of the Commission to the European Council on the application of the principles of subsidiarity and proportionality, on simplification and codification, CSE(95) 580, Bull. EC 11-1995, point 1.9.2 and the subsequent Better law-making reports: COM(1997) 626; COM(1998) 715; COM(1999) 562; COM(2000) 772; COM(2001) 728; COM(2002) 275. See also General guidelines for legislative policy: Communication of 9 January 1996 by the President of the Commission, SEC(95) 2255/5; ‘Legislate Less to Act Better: The Facts’, Bull. EU 5-1998, point Institutional Affairs, 1.8.3; Communication from the Commission to the EP and the Council ‘Making single market rules more effective’, COM(1998) 296 final. For a fairly complete overview of the initiatives taken by the Community institutions to improve the quality of legislation, see H. Xanthaki, ‘The Problem of Quality in EU Legislation: What on Earth Is really Wrong?’, CMLR 38 (2001) 3, p. 615. 20 A. Kellermann et al. (eds.), Improving the Quality of Legislation in Europe (The Hague: Kluwer Law International, 1998). 21 Xanthaki (2001), supra note 19, pp. 666-667 and 674 in particular. 22 European Parliament, Council, Commission, Interinstitutional Agreement on better law-making, OJ 2003, C 321/01. This new Agreement not only completes the aforementioned 1998 Interinstitutional Agreement, but also the Interinstitutional Agreement of 20 December 1994 on an accelerated working method for official codification of legislative texts (OJ 1996, C 102/2) and the 2001 Interinstitutional Agreement on a more structured use of the recasting technique for legal acts (OJ 2002, C 77/1). 23 COM(2003) 71 final. See on the results of the implementation of this Action plan, COM(2003) 623 and SEC(2003) 1085 of 24 October 2003 (period March-September 2003)
ElectronicjournalofcomparatIveLaw,vol.9.1(january2005),<http://www.ejclorg/- ensure better European lawmaking, while respecting the responsibilities of each institution. 24 As will be seen below, this agreement is also highly important when it comes to the conditions under which self-regulation and co-regulation are considered to be appropriate alternatives to European legislation As regards the policy aspect, the striving for deregulation definitively acquired its place at the European level, because it explicitly aims at limiting legislative activity to what is necessary. This aim is given shape in various ways, as regards both existing legislation and new legislation. As regards the existing body of European legislation, an operation of up- dating the stock of existing legislation,and of reducing the volume of the communit acquis' has been set in motion, entailing not only the consolidation and codification of European legislation but also the removal of obsolete legislation. These initiatives contribute to reducing the complexity of the European body of legislation and to enhancing its accessibility. Consolidation is a semi-official ed itorial compilation of the various legal texts concerning a particular issue, which takes place outside the formal decision-making procedures. It has no legal consequences and leaves the legal force of the various texts intact Codification occurs when a formal legal act is adopted, such as a regulation or a directive, on the basis of the prescribed procedures, by which all earlier texts are repealed and replaced by one new text that, in principle at least, does not alter the original contents. 0 A major achievement in this respect is the realisation of the Community Customs Code. 27 Already in 1994, an interinstitutional agreement was adopted to speed up the process of cod ification. 28 This process involves also repealing those parts of the legislation that have become obsolete or invalid. A first initiative in this respect concerns the SLIM project: Simpler Legislation for the Internal Market. The outcome of this pilot project led the Commission to conclude that the project should be extended to other areas of European law as well, and that European legislation should be screened in a more structural way. y Given the rather sloy progress that was achieved in this respect, 30 the Commission set itself a very clear target in 2001 of reducing the volume of the acquis by 25 per cent by the end of 2004, a reduction Document de travail des services de la Commission, Rapport sur la Gouvernance Europeenne(2003 2004), Bruxelles, 22 Septem ber 2004, SEC(2004)1153, p. 11. Not available in English Confirmed most recently in the Communication from the Commission, The implementation of the framework action"Updating and simplify ing the Community acquis, Brussels, 16 June 2004, COM(2004)432 final, p 2 26 See in this sense the Conclusions of the Edinburgh European Council, Bull. EC 12-1992, p. 15 Esta blished in Council Regulation 2913/92.0J 1992.L 302/ Interinstitutional Agreement of 20 December 1994 on accelerated work ing method for official codification of legislative texts, OJ 1996, C 102/2. The annual work programmes of the European Commission and reports on the implementation thereof, published annually since 1993, provide further information on the state of affairs of the cod ification and consolidation activ ities nission to the Council and the et SLIM: Simpler Legislation for the Internal Market, COM(96)559 final and COM(2000)104 See, e.g., Resolution A5-035 1/2000 of the European Parliament on the 2000 report of the Commission on the SLIM project, mentioned in the previous footnote
Electronic Journal of Comparative Law, vol. 9.1 (January 2005), <http://www.ejcl.org/> 7 ensure better European lawmaking, while respecting the responsibilities of each institution.24 As will be seen below, this Agreement is also highly important when it comes to the conditions under which self-regulation and co-regulation are considered to be appropriate alternatives to European legislation. As regards the policy aspect, the striving for deregulation definitively acquired its place at the European level, because it explicitly aims at limiting legislative activity to what is necessary. This aim is given shape in various ways, as regards both existing legislation and new legislation. As regards the existing body of European legislation, an operation of ‘updating the stock of existing legislation’ and of ‘reducing the volume of the Community acquis’ has been set in motion,25 entailing not only the consolidation and codification of European legislation but also the removal of obsolete legislation. These initiatives contribute to reducing the complexity of the European body of legislation and to enhancing its accessibility. Consolidation is a semi-official editorial compilation of the various legal texts concerning a particular issue, which takes place outside the formal decision-making procedures. It has no legal consequences and leaves the legal force of the various texts intact. Codification occurs when a formal legal act is adopted, such as a regulation or a directive, on the basis of the prescribed procedures, by which all earlier texts are repealed and replaced by one new text that, in principle at least, does not alter the original contents.26 A major achievement in this respect is the realisation of the Community Customs Code.27 Already in 1994, an interinstitutional agreement was adopted to speed up the process of codification.28 This process involves also repealing those parts of the legislation that have become obsolete or invalid. A first initiative in this respect concerns the SLIM project: Simpler Legislation for the Internal Market. The outcome of this pilot project led the Commission to conclude that the project should be extended to other areas of European law as well, and that European legislation should be screened in a more structural way. 29 Given the rather slow progress that was achieved in this respect,30 the Commission set itself a very clear target in 2001 of reducing the volume of the acquis by 25 per cent by the end of 2004, a reduction 24 Document de travail des services de la Commission, Rapport sur la Gouvernance Européenne (2003 - 2004), Bruxelles, 22 September 2004, SEC(2004) 1153, p. 11. Not available in English. 25 Confirmed most recently in the Communication from the Commission, The implementation of the framework action ‘Updating and simplifying the Community acquis’, Brussels, 16 June 2004, COM(2004) 432 final, p. 2. 26 See in this sense the Conclusions of the Edinburgh European Council, Bull. EC 12 -1992, p. 15. 27 Established in Council Regulation 2913/92, OJ 1992, L 302/1. 28 Interinstitutional Agreement of 20 December 1994 on accelerated working method for official codification of legislative texts, OJ 1996, C 102/2. The annual work programmes of the European Commission and reports on the implementation thereof, published annually since 1993, provide further information on the state of affairs of the codification and consolidation activities. 29 Cf. the Communication from the Commission to the Council and the European Parliament, ‘Review o f SLIM: Simpler Legislation for the Internal Market’, COM(96) 559 final and COM(2000) 104. 30 See, e.g., Resolution A5-0351/2000 of the European Parliament on the 2000 report of the Commission on the SLIM project, mentioned in the previous footnote
ElectronicjournalofcomparatIveLaw,vol.9.1(january2005),<http://www.ejclorg/- which corresponds to about 22,500 pages in the Official Journal. In particular as a result of the enlargement process and the translation efforts this entailed for the acquis communautaire, it has recently become clear that this goal is not likely to be reached. Yet, the Commission deems it feasible to realise this within a reasonable period thereafter, 3I 2.3 The second pillar: Diversification of modes of governance As regards new legislation, the striving for deregulation entails a search for other possible modes of governance or alternative means of regulation besides legislation the second foundation of the Union's legislative policy. The European Council of Edinburgh laid the basis for this policy in December 1992, making clear that the foundations of the new legislative policy are rooted in the principles of conferred powers, subsid iarity and proportionality, laid down in Article 5 EC. These principles determine not only the competence of the EC to act, but also the intensity of its actions. As such, they are guid ing principles for the conduct of its institutions, in particular for their choice of instruments Every new legislative proposal is thus to be preceded by a review in terms of competence subsid arity and proportionality. 32 The application of the principles of subsid arity and proportionality may further require the preference for other ways of regulation over legislation. More in particular, the Ed inburgh European Council Conclusions stated that, whenever possible, action has to be taken at the national level, be it by other ways of cooperation between the Member States, the use of voluntary codes or self-regulation. If European measures are deemed neces non-binding measures such as recommendations should be used, if possible. If legislation is considered necessary, resort should preferably be taken to -framework -directives, not to regulations Since the European Council of Edinburgh, this point of view has been confirmed on various occasions, and most importantly in the Protocol on subsid arity and proportionality attached to the Treaty of Amsterdam. 34 This Protocol explicitly confirms the guidelines laid down in the Edinburgh Conclusions, emphasising also that, consistent with the achievement of the objective, the form of Community action shall be as simple as possible, that the Community shall legislate only to the extent necessaryand that Community measure should leave as much scope for national decision as possible. The Treaty establishing a Constitution for Europe also contains such a Protocol(Protocol no. 2), in which it is stated that decisions are to be taken as closely as possible to the citizens. Furthermore, as was observed in the Introduction to this article, in the 2001 White Paper on European Governance, See Communication from the Commission, The implementation of the framework action Updating and simplify ing the Community acquis, COM(2004)432 final, p. 4. See also on this press release IP-03-214, 11 February2003,http:/europa.e Cf. also the Declaration on estimated costs under Commission proposals, attached to the tEU, and the Communication from the Commission on impact assessment, COM(2002)276 final. Although the issue of the EC legal instruments was on the 1996IGC agenda, because of the Declaration on the hierarchy of norms attached to the teu, the IGC and the subsequent Treaty of Amsterdam did not bring a bout any changes in this respect, nor in respect to the exist ing instruments Such protocols form an integral part of the EC Treaty, as is expressed in Article 311 EC 8
Electronic Journal of Comparative Law, vol. 9.1 (January 2005), <http://www.ejcl.org/> 8 which corresponds to about 22,500 pages in the Official Journal. In particular as a result of the enlargement process and the translation efforts this entailed for the acquis communautaire, it has recently become clear that this goal is not likely to be reached. Yet, the Commission deems it feasible to realise this ‘within a reasonable period thereafter’.31 2.3 The second pillar: Diversification of modes of governance As regards new legislation, the striving for deregulation entails a search for other possible modes of governance or alternative means of regulation besides legislation: the second foundation of the Union’s legislative policy. The European Council of Edinburgh laid the basis for this policy in December 1992, making clear that the foundations of the new legislative policy are rooted in the principles of conferred powers, subsidiarity and proportionality, laid down in Article 5 EC. These principles determine not only the competence of the EC to act, but also the intensity of its actions. As such, they are guiding principles for the conduct of its institutions, in particular for their choice of instruments. Every new legislative proposal is thus to be preceded by a review in terms of competence, subsidiarity and proportionality.32 The application of the principles of subsidiarity and proportionality may further require the preference for other ways of regulation over legislation. More in particular, the Edinburgh European Council Conclusions stated that, whenever possible, action has to be taken at the national level, be it by other ways of cooperation between the Member States, the use of voluntary codes or self-regulation. If European measures are deemed necessary, then non-binding measures such as recommendations should be used, if possible. If legislation is considered necessary, resort should preferably be taken to - framework - directives, not to regulations.33 Since the European Council of Edinburgh, this point of view has been confirmed on various occasions, and most importantly in the Protocol on subsidiarity and proportionality attached to the Treaty of Amsterdam.34 This Protocol explicitly confirms the guidelines laid down in the Edinburgh Conclusions, emphasising also that, consistent with the achievement of the objective, ‘the form of Community action shall be as simple as possible’, that ‘the Community shall legislate only to the extent necessary’ and that ‘Community measures should leave as much scope for national decision as possible’. The Treaty establishing a Constitution for Europe also contains such a Protocol (Protocol no. 2), in which it is stated that decisions are to be taken as closely as possible to the citizens. Furthermore, as was observed in the Introduction to this article, in the 2001 White Paper on European Governance, 31 See Communication from the Commission, The implementation of the framework action ‘Updating and simplifying the Community acquis’, COM(2004) 432 final, p. 4. See also on this press release IP-03-214, 11 February 2003, http://europa.eu.int/rapid/searchAction.do. 32 Cf. also the Declaration on estimated costs under Commission proposals, attached to the TEU, and the Communication from the Commission on impact assessment, COM(2002) 276 final. 33 Although the issue of the EC legal instruments was on the 1996 IGC agenda, because of the Declaration on the hierarchy of norms attached to the TEU, the IGC and the subsequent Treaty of Amsterdam did not bring about any changes in this respect, nor in respect to the existing instruments. 34 Such protocols form an integral part of the EC Treaty, as is expressed in Article 311 EC
ElectronicjournalofcomparaTiveLaw,vol.9.1(january2005),<http://www.ejcl.org/> the 2002 Commission Action plan and the 2003 Interinstitutional agreement on better law- making the determination to resort, where possible, to self-regulation, co-regulation and soft law instruments and mechanisms has been confirmed 2. 4 The underlying aim of enhancing the Union's legitimacy Application of the notions of flexibility and differentiation and of the principles of subsid iarity and proportionality is not an end in itself; this is considered to contribute to enhancing the effectiveness, legitimacy and transparency of Union action. The White Paper on European Governance makes this explicitly clear in respect of differentiation of the Union's modes of governance and legal instruments. 35 It is thus understood that this enables rulemaking closer to the citizen and realisation of the aims of the Lisbon strategy respectively contributing to the legitimacy and the effectiveness of EU action. Focusing here on the aim of enhancing the Union's legitimacy, we should first establish what is actually meant by legitimacy before we can consider what effects the use of self-regulation, co regulation and soft law may have on this The notions of democracy'and"rule of law are of crucial importance in this respect Even if the European legal system constitutes a legal order in its own right 36 it is clear that it is based on these notions, just like the national legal systems represented in it. 7This means that not only the existence and division of European power must be acceptable to the citizen but also the exercise thereof. 38 Democratic organisation and exercise of power is usually considered to be the basis for this acceptability and hence for the democratic legitimacy of the Union. So, enhancing legitimacy is primarily understood as an effort to increase the influence, control and participation of the European Parliament and, more generally, of the citizen in the European decision-making process Yet, acceptability of-the exercise of -state power requires more than that, and in particular reliance on the rule of law. The essence of a state, or any other ent ity vested with the exercise of government power based on the rule of law, is that government action is bound by the law. This can be said to require, on the one hand, governing sub lege and, on the other, governing per lege. 39 Governing sub lege does not only mean governing on the basis of the law, i.e. that there is a competence-conferring legal basis(the principle of legality), it also means governing within the boundaries of the law, that is in conformity with certain principles on which a constitutional state is based and which indicate the limits to the powers to be exercised, with a view to ensuring the freedom and liberty of citizens Governing per lege means that power should be exercised through the adoption of laws, inter See also the Commission's work programme for the White Paper on European Govemance, SEC(2000) 15477def,p.4 36 Case 26/62 Van Gend en Loos[1963]ECR 3 Cf. Article 6 TEU P Pescatore, Les exigences de la democratie et la legit im ite de la Communaute Europeenne, Cahiers Dr Euro10(1974),505-506 H. Gribnau, ' Legaliteit en legitim iteit. Fiscale rechtsvorming in de democratische rechtsstaat,, Ned. Tijdschrift voor Bestuursrecht(2001)1, 16
Electronic Journal of Comparative Law, vol. 9.1 (January 2005), <http://www.ejcl.org/> 9 the 2002 Commission Action plan and the 2003 Interinstitutional Agreement on better lawmaking the determination to resort, where possible, to self-regulation, co-regulation and softlaw instruments and mechanisms has been confirmed. 2.4 The underlying aim of enhancing the Union’s legitimacy Application of the notions of flexibility and differentiation and of the principles of subsidiarity and proportionality is not an end in itself; this is considered to contribute to enhancing the effectiveness, legitimacy and transparency of Union action. The White Paper on European Governance makes this explicitly clear in respect of differentiation of the Union’s modes of governance and legal instruments.35 It is thus understood that this enables rulemaking closer to the citizen and realisation of the aims of the Lisbon strategy, respectively contributing to the legitimacy and the effectiveness of EU action. Focusing here on the aim of enhancing the Union’s legitimacy, we should first establish what is actually meant by legitimacy before we can consider what effects the use of self-regulation, coregulation and soft law may have on this. The notions of ‘democracy’ and ‘rule of law’ are of crucial importance in this respect. Even if the European legal system constitutes a legal order in its own right,36 it is clear that it is based on these notions, just like the national legal systems represented in it.37 This means that not only the existence and division of European power must be acceptable to the citizen but also the exercise thereof.38 Democratic organisation and exercise of power is usually considered to be the basis for this acceptability and hence for the democratic legitimacy of the Union. So, enhancing legitimacy is primarily understood as an effort to increase the influence, control and participation of the European Parliament and, more generally, of the citizen in the European decision-making process. Yet, acceptability of - the exercise of - state power requires more than that, and in particular reliance on the rule of law. The essence of a state, or any other entity vested with the exercise of government power based on the rule of law, is that government action is bound by the law. This can be said to require, on the one hand, governing sub lege and, on the other, governing per lege. 39 Governing sub lege does not only mean governing on the basis of the law, i.e. that there is a competence-conferring legal basis (the principle of legality), it also means governing within the boundaries of the law, that is in conformity with certain principles on which a constitutional state is based and which indicate the limits to the powers to be exercised, with a view to ensuring the freedom and liberty of citizens. Governing per lege means that power should be exercised through the adoption of laws, inter 35 See also the Commission’s work programme for the White Paper on European Governance, SEC(2000) 1547/7 def, p. 4. 36 Case 26/62 Van Gend en Loos [1963] ECR 3. 37 Cf. Article 6 TEU. 38 P. Pescatore, ‘Les exigences de la démocratie et la légitimité de la Communauté Européenne’, Cahiers Dr Euro 10 (1974), 505-506. 39 H. Gribnau, ‘Legaliteit en legitimiteit. Fiscale rechtsvorming in de democratische rechtsstaat’, Ned. Tijdschrift voor Bestuursrecht (2001) 1, 16