# C_2015291EN.01002901.xml

| 4.9.2015 | EN | Official Journal of the European Union | C 291/29 |
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4.9.2015

EN

Official Journal of the European Union

C 291/29

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Opinion of the European Economic and Social Committee on Self-regulation and co-regulation in the Community legislative framework

(own-initiative opinion)

(2015/C 291/05)

| Rapporteur working alone: | Jorge PEGADO LIZ |
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Rapporteur working alone:

Rapporteur working alone:

Jorge PEGADO LIZ

Jorge PEGADO LIZ

On 10 July 2014, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on

Self-regulation and co-regulation in the Community legislative framework (own-initiative opinion).

Self-regulation and co-regulation in the Community legislative framework

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 31 March 2015.

At its 507th plenary session, held on 22 and 23 April 2015 (meeting of 22 April), the European Economic and Social Committee adopted the following opinion by 117 votes to 46 with 9 abstentions.

1.   Conclusions and recommendations

Conclusions and recommendations

| 1.1. | Self-regulation and co-regulation are mechanisms for regulating economic and social relations or commercial practices among the various economic stakeholders; they may be decided spontaneously or be imposed. |
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1.1.

Self-regulation and co-regulation are mechanisms for regulating economic and social relations or commercial practices among the various economic stakeholders; they may be decided spontaneously or be imposed.

| 1.2. | They should be viewed as important instruments for complementing or supplementing hard law, but not as an alternative to it unless there are ‘fundamental rules’ providing a sufficient enabling basis. |
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1.2.

They should be viewed as important instruments for complementing or supplementing hard law, but not as an alternative to it unless there are ‘fundamental rules’ providing a sufficient enabling basis.

| 1.3. | Neither the EU treaties nor Member States’ constitutions provide any such enabling basis. |
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1.3.

Neither the EU treaties nor Member States’ constitutions provide any such enabling basis.

| 1.4. | In order for them to be a valid, recognised regulatory instrument in any legal system, their configuration and ambit must be defined by specific precepts that are legally binding and enforceable, whether at national or Community level, respecting at the same time the nature of these instruments, especially the voluntary agreement of the participants. |
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1.4.

In order for them to be a valid, recognised regulatory instrument in any legal system, their configuration and ambit must be defined by specific precepts that are legally binding and enforceable, whether at national or Community level, respecting at the same time the nature of these instruments, especially the voluntary agreement of the participants.

| 1.5. | The parameters for recognising these regulatory instruments must be quite clear, as must the principles governing them and their limits as an accessory regulatory instrument in the legal system concerned. |
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1.5.

The parameters for recognising these regulatory instruments must be quite clear, as must the principles governing them and their limits as an accessory regulatory instrument in the legal system concerned.

| 1.6. | Irrespective of the sectors involved, and without prejudice to the establishment of specific requirements in special cases, these general principles for both self-regulation and co-regulation should include the following:






  a) | Compliance with EU and international law, including international trade agreements |
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1.6.

Irrespective of the sectors involved, and without prejudice to the establishment of specific requirements in special cases, these general principles for both self-regulation and co-regulation should include the following:

a)

Compliance with EU and international law, including international trade agreements

| b) | Transparency and publicity |
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b)

Transparency and publicity

| c) | Representativeness of the parties concerned |
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c)

Representativeness of the parties concerned

| d) | Prior consultation of the parties directly concerned |
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d)

Prior consultation of the parties directly concerned

| e) | Added value for the general interest |
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e)

Added value for the general interest

| f) | Non-applicability






  — | when the definition of fundamental rights is at stake |
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f)

Non-applicability

—

when the definition of fundamental rights is at stake

| — | or in situations where the rules must be applied uniformly in all the Member States |
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—

or in situations where the rules must be applied uniformly in all the Member States

| g) | Being subject to control by Community and national judicial bodies |
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g)

Being subject to control by Community and national judicial bodies

| h) | Monitoring of the degree and success of their implementation, using objective criteria and reliable indicators defined in advance and specified according to sectors and objectives |
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h)

Monitoring of the degree and success of their implementation, using objective criteria and reliable indicators defined in advance and specified according to sectors and objectives

| i) | Checks and follow-up of their implementation by preventive measures or sanctions, in order to ensure their effectiveness |
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i)

Checks and follow-up of their implementation by preventive measures or sanctions, in order to ensure their effectiveness

| j) | Provision of a system of fines or other penalties, such as expulsion or loss of accreditation of participants |
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j)

Provision of a system of fines or other penalties, such as expulsion or loss of accreditation of participants

| k) | Possibility of periodic review in the light of changing situations, legislation and the aspirations of their signatories |
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k)

Possibility of periodic review in the light of changing situations, legislation and the aspirations of their signatories

| l) | Clear identification of financing sources. |
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l)

Clear identification of financing sources.

| 1.7. | The Interinstitutional Agreement (IIA) is an important step in defining the scope of self-regulation and co-regulation at Community level. |
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1.7.

The Interinstitutional Agreement (IIA) is an important step in defining the scope of self-regulation and co-regulation at Community level.

| 1.8. | A review of it should






  a) | identify a binding legal base; |
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1.8.

A review of it should

a)

identify a binding legal base;

| b) | structure the IIA as a specific instrument under the terms of Article 295 TFEU; |
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b)

structure the IIA as a specific instrument under the terms of Article 295 TFEU;

| c) | redefine basic concepts in line with the most recent guidance in the field, which distinguishes self-regulation and co-regulation and recognises intermediate forms such as those promoted by EU recommendations and communications; |
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c)

redefine basic concepts in line with the most recent guidance in the field, which distinguishes self-regulation and co-regulation and recognises intermediate forms such as those promoted by EU recommendations and communications;

| d) | stipulate clearly that it must be possible for any ensuing disputes to be dealt with by extra-judicial dispute settlement systems. |
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d)

stipulate clearly that it must be possible for any ensuing disputes to be dealt with by extra-judicial dispute settlement systems.

| 1.9. | The EESC also thinks that the agreement could usefully be supplemented by a recommendation to the Member States encouraging them to adopt the same principles and precepts at national level. |
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1.9.

The EESC also thinks that the agreement could usefully be supplemented by a recommendation to the Member States encouraging them to adopt the same principles and precepts at national level.

| 1.10. | The EESC calls on the Commission, the European Parliament, the Council and the Member States to give priority to revising the IIA as proposed in this opinion, and to refer the proposed revision to it for an opinion. |
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1.10.

The EESC calls on the Commission, the European Parliament, the Council and the Member States to give priority to revising the IIA as proposed in this opinion, and to refer the proposed revision to it for an opinion.

2.   Introduction: purpose

Introduction: purpose

| 2.1. | In various fields and in a number of national and international bodies, self-regulation and co-regulation have long been considered a vital supplement to regulation by other bodies, in order to ensure that a range of economic and social activities are properly regulated. |
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2.1.

In various fields and in a number of national and international bodies, self-regulation and co-regulation have long been considered a vital supplement to regulation by other bodies, in order to ensure that a range of economic and social activities are properly regulated.

| 2.2. | At EU level, it is the EESC — chiefly through its Single Market Observatory — which has been the most committed in defining and highlighting the role of self-regulation and co-regulation: it has referred to them in numerous opinions, especially those issued by the INT section (1). To assist in its work, in March 2008 under the auspices of the SMO it set up a database on self-regulation and co-regulation which it has kept updated with the various national and EU experiences in this field. |
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2.2.

At EU level, it is the EESC — chiefly through its Single Market Observatory — which has been the most committed in defining and highlighting the role of self-regulation and co-regulation: it has referred to them in numerous opinions, especially those issued by the INT section (1). To assist in its work, in March 2008 under the auspices of the SMO it set up a database on self-regulation and co-regulation which it has kept updated with the various national and EU experiences in this field.

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| 2.3. | The subject has in the meantime been dealt with in depth in academic circles, by eminent professors, especially in the field of contract law, corporate governance, social responsibility, internet, e-commerce, product safety, professional services, the environment, advertising and the audiovisual sector in the single market. |
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2.3.

The subject has in the meantime been dealt with in depth in academic circles, by eminent professors, especially in the field of contract law, corporate governance, social responsibility, internet, e-commerce, product safety, professional services, the environment, advertising and the audiovisual sector in the single market.

| 2.4. | However, what is still lacking is a political-legislative discussion to clearly define the legal framework that should govern the operation of these instruments at EU level. This should specify their legal nature, lay down conditions for their validity, define their areas of application, clarify links with hard law, and set down their limits in a consistent, coherent and harmonised framework. |
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2.4.

However, what is still lacking is a political-legislative discussion to clearly define the legal framework that should govern the operation of these instruments at EU level. This should specify their legal nature, lay down conditions for their validity, define their areas of application, clarify links with hard law, and set down their limits in a consistent, coherent and harmonised framework.

3.   Concepts and definitions

Concepts and definitions

| 3.1. | ‘Straight regulation’ is generally understood as the body of rules created by states or governments, and produced by the traditional democratic systems of nation-states and their equivalents in supranational institutions based on democratic elections, such as acts passed by the US Congress or the regulations and directives of the European Union. It generally denotes legislation in the wide sense, laid down by the legislative authority or by the executive where so authorised; its provisions are accompanied by coercive means for enforcing them, if necessary by force, and by civil or penal measures to punish failure to comply with them (‘hard law’). |
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3.1.

‘Straight regulation’ is generally understood as the body of rules created by states or governments, and produced by the traditional democratic systems of nation-states and their equivalents in supranational institutions based on democratic elections, such as acts passed by the US Congress or the regulations and directives of the European Union. It generally denotes legislation in the wide sense, laid down by the legislative authority or by the executive where so authorised; its provisions are accompanied by coercive means for enforcing them, if necessary by force, and by civil or penal measures to punish failure to comply with them (‘hard law’).

| 3.2. | The concept of self-regulation has its origins in behavioural psychology. When applied to the economic sphere, it broadly denotes the adoption by economic operators of certain rules of conduct among themselves or in relation to third parties in the market and in society, adherence to which is agreed among themselves, without any external coercive mechanisms. |
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3.2.

The concept of self-regulation has its origins in behavioural psychology. When applied to the economic sphere, it broadly denotes the adoption by economic operators of certain rules of conduct among themselves or in relation to third parties in the market and in society, adherence to which is agreed among themselves, without any external coercive mechanisms.

| 3.3. | A range of types of self-regulation have developed, with a variety of more or less scientific classification criteria, more particularly:






  a) | Original or delegated self-regulation. Depending on the rules drawn up, this may simply entail a self-commitment on the part of the interested parties (also known as ‘private self-regulation’), or may instead involve a higher governing body (the state, regulatory and sectoral bodies, European Union) which sets certain binding parameters (also known as ‘public self-regulation’); |
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3.3.

A range of types of self-regulation have developed, with a variety of more or less scientific classification criteria, more particularly:

a)

Original or delegated self-regulation. Depending on the rules drawn up, this may simply entail a self-commitment on the part of the interested parties (also known as ‘private self-regulation’), or may instead involve a higher governing body (the state, regulatory and sectoral bodies, European Union) which sets certain binding parameters (also known as ‘public self-regulation’);

| b) | Legal, customary or case-law-based self-regulation, whose source lies in law, particularly constitutional or supranational law (e.g. Community law), traditional ‘market practices and customs’, today termed ‘good practice’, or law reports; |
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b)

Legal, customary or case-law-based self-regulation, whose source lies in law, particularly constitutional or supranational law (e.g. Community law), traditional ‘market practices and customs’, today termed ‘good practice’, or law reports;

| c) | National or transnational self-regulation (also known as ‘private transnational regulation’), depending on whether it only covers domestic matters or derives from agreements signed by private operators, businesses, NGOs or independent experts setting technical standards, interacting with international or intergovernmental organisations. |
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c)

National or transnational self-regulation (also known as ‘private transnational regulation’), depending on whether it only covers domestic matters or derives from agreements signed by private operators, businesses, NGOs or independent experts setting technical standards, interacting with international or intergovernmental organisations.

| 3.4. | Lastly, co-regulation generally refers to a form of regulation of stakeholders that is promoted, guided or controlled by a third party which is either an official body or an independent regulatory authority, normally with oversight and monitoring powers and in some cases with the power to impose sanctions. |
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3.4.

Lastly, co-regulation generally refers to a form of regulation of stakeholders that is promoted, guided or controlled by a third party which is either an official body or an independent regulatory authority, normally with oversight and monitoring powers and in some cases with the power to impose sanctions.

| 3.5. | Although often considered to be synonymous, codes of ethics and codes of practice reflect two separate concepts which need to be kept distinct. |
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3.5.

Although often considered to be synonymous, codes of ethics and codes of practice reflect two separate concepts which need to be kept distinct.

| 3.6. | Both concepts involve a compilation of rules or standards deriving from self-regulation or co-regulation processes, and represent the most sophisticated method of translating the interested parties’ agreement thereon; they aim to make the set of rules and the way they are applied transparent and accessible to all interested parties. |
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3.6.

Both concepts involve a compilation of rules or standards deriving from self-regulation or co-regulation processes, and represent the most sophisticated method of translating the interested parties’ agreement thereon; they aim to make the set of rules and the way they are applied transparent and accessible to all interested parties.

| 3.7. | However, codes of ethics concern deontological standards for the exercise of certain professions whose practitioners are empowered to regulate themselves under national laws or international provisions governing the exercise of the free professions (doctors, lawyers, journalists and so on). |
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3.7.

However, codes of ethics concern deontological standards for the exercise of certain professions whose practitioners are empowered to regulate themselves under national laws or international provisions governing the exercise of the free professions (doctors, lawyers, journalists and so on).

| 3.8. | Codes of practice apply rather to the compilation of self-regulation or co-regulation provisions in the sense used in the present opinion. |
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3.8.

Codes of practice apply rather to the compilation of self-regulation or co-regulation provisions in the sense used in the present opinion.

4.   The current EU legal framework for self-regulation and co-regulation

The current EU legal framework for self-regulation and co-regulation

A)   The concepts of ‘better lawmaking’, ‘smart regulation’ and ‘simplification’

The concepts of ‘better lawmaking’, ‘smart regulation’ and ‘simplification’

| 4.1. | At EU level, it was not until the March 2002 Lisbon European Council that the European Commission launched an initiative under the general heading of ‘Better regulation’, based on the June 2002 Action Plan for Better Regulation (2) and followed by the major interinstitutional agreement between the European Parliament, the Council and the Commission on better lawmaking (3). |
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4.1.

At EU level, it was not until the March 2002 Lisbon European Council that the European Commission launched an initiative under the general heading of ‘Better regulation’, based on the June 2002 Action Plan for Better Regulation (2) and followed by the major interinstitutional agreement between the European Parliament, the Council and the Commission on better lawmaking (3).

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| 4.2. | Better — and, if possible, less — lawmaking has been an abiding objective of single market policy (4). It has been consistently supported by the EESC in various opinions (5), with the aim of finding the best ways to make the legislative environment more user-friendly and understandable to business, workers, consumers and civil society organisations. |
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4.2.

Better — and, if possible, less — lawmaking has been an abiding objective of single market policy (4). It has been consistently supported by the EESC in various opinions (5), with the aim of finding the best ways to make the legislative environment more user-friendly and understandable to business, workers, consumers and civil society organisations.

4

5

| 4.3. | The EESC has commented in detail on these issues, both in response to Commission proposals and also by putting forward its own innovative suggestions, such as The proactive law approach: a further step towards better regulation at EU level
   (6). |
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4.3.

The EESC has commented in detail on these issues, both in response to Commission proposals and also by putting forward its own innovative suggestions, such as The proactive law approach: a further step towards better regulation at EU level
   (6).

The proactive law approach: a further step towards better regulation at EU level

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B)   The position of self-regulation and co-regulation in the current Community legal framework

The position of self-regulation and co-regulation in the current Community legal framework

| 4.4. | Excepting the abovementioned Interinstitutional Agreement on better lawmaking, it must be acknowledged that the question of self-regulation and co-regulation was relatively absent from the Commission initiatives and concerns listed above (7). |
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4.4.

Excepting the abovementioned Interinstitutional Agreement on better lawmaking, it must be acknowledged that the question of self-regulation and co-regulation was relatively absent from the Commission initiatives and concerns listed above (7).

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| 4.5. | A number of important aspects of this text should be highlighted:






  a) | The reopening of the question of the interpretation of the principles of subsidiarity and proportionality now enshrined in Article 5 of the TEU and in its Protocol No 2, in the light of which the use of self- and co-regulation mechanisms should be approached. |
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4.5.

A number of important aspects of this text should be highlighted:

a)

The reopening of the question of the interpretation of the principles of subsidiarity and proportionality now enshrined in Article 5 of the TEU and in its Protocol No 2, in the light of which the use of self- and co-regulation mechanisms should be approached.

| b) | Making these mechanisms part of the Better Regulation programme, with a view to ‘legislating less to legislate better’; |
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b)

Making these mechanisms part of the Better Regulation programme, with a view to ‘legislating less to legislate better’;

| c) | The clear distinction between both of these mechanisms and the ‘open method of coordination’ (OMC), the scope of which is specified in Article 6 TFEU. |
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c)

The clear distinction between both of these mechanisms and the ‘open method of coordination’ (OMC), the scope of which is specified in Article 6 TFEU.

| d) | Similarly, the clear distinction between these mechanisms with regard to what is usually known as soft law (8), such as preparatory or information acts (e.g. white and green papers, action plans and programmes), interpretative acts such as the De Minimis Communication on competition law (9), conclusions, declarations, resolutions and, lastly, recommendations and opinions, covered by Article 288 TFEU (10). |
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d)

Similarly, the clear distinction between these mechanisms with regard to what is usually known as soft law (8), such as preparatory or information acts (e.g. white and green papers, action plans and programmes), interpretative acts such as the De Minimis Communication on competition law (9), conclusions, declarations, resolutions and, lastly, recommendations and opinions, covered by Article 288 TFEU (10).

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De Minimis

9

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| 4.6. | However, by its nature, this ‘agreement’ represents little more than an interinstitutional ‘undertaking’ and does not in itself lay any legal obligation on third parties (11). On the other hand, especially with regard to self-regulation, the Commission considers that the Community institutions must abstain from such voluntary initiatives (12) and should simply verify whether the practices enshrined in it are in keeping with the provisions of the Treaty. |
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4.6.

However, by its nature, this ‘agreement’ represents little more than an interinstitutional ‘undertaking’ and does not in itself lay any legal obligation on third parties (11). On the other hand, especially with regard to self-regulation, the Commission considers that the Community institutions must abstain from such voluntary initiatives (12) and should simply verify whether the practices enshrined in it are in keeping with the provisions of the Treaty.

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| 4.7. | Regarding co-regulation, for which the IIA appears to express a clear preference, the institutions intend to promote agreements between stakeholders, defining the bounds of such agreements in legislative acts, verifying that they comply with fundamental legislative texts and with the rules governing their drafting, and monitoring their application. There are however no more than ten or so cases in which this intention has been borne out (13). |
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4.7.

Regarding co-regulation, for which the IIA appears to express a clear preference, the institutions intend to promote agreements between stakeholders, defining the bounds of such agreements in legislative acts, verifying that they comply with fundamental legislative texts and with the rules governing their drafting, and monitoring their application. There are however no more than ten or so cases in which this intention has been borne out (13).

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| 4.8. | In any event, the IIA does not effectively define a legal framework for the use by the EU of these mechanisms, except for:






  a) | the guarantee of their transparency, |
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4.8.

In any event, the IIA does not effectively define a legal framework for the use by the EU of these mechanisms, except for:

the IIA does not effectively define a legal framework for the use by the EU of these mechanisms

a)

the guarantee of their transparency,

| b) | their non-application when fundamental rights or major policy options are at stake, |
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b)

their non-application when fundamental rights or major policy options are at stake,

| c) | or in situations where the rules must be applied uniformly in all the Member States. |
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c)

or in situations where the rules must be applied uniformly in all the Member States.

| 4.9. | At the European Parliament, this question has been highlighted in a number of resolutions, as well as in the abovementioned report by the Committee on Constitutional Affairs on the Interinstitutional Agreement on better lawmaking between the European Parliament, the Council and the Commission (14). |
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4.9.

At the European Parliament, this question has been highlighted in a number of resolutions, as well as in the abovementioned report by the Committee on Constitutional Affairs on the Interinstitutional Agreement on better lawmaking between the European Parliament, the Council and the Commission (14).

At the European Parliament

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| 4.10. | A wide variety of EESC opinions have stressed the advantages, but also limitations and tightly and clearly circumscribed objectives, of the use of self-regulation and co-regulation (15). The EESC’s thinking on this subject may be summarised as follows:






  a) | Self-regulation must comply with the law and be supported by the law; it must be capable of implementation, verification and control; it must also be effective and provide clear channels for redress, particularly across borders. |
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4.10.

A wide variety of EESC opinions have stressed the advantages, but also limitations and tightly and clearly circumscribed objectives, of the use of self-regulation and co-regulation (15). The EESC’s thinking on this subject may be summarised as follows:

EESC

15

a)

Self-regulation must comply with the law and be supported by the law; it must be capable of implementation, verification and control; it must also be effective and provide clear channels for redress, particularly across borders.

| b) | Co-regulation combines the elements of legislation, more especially in its predictable and binding nature, with the more flexible regime of self-regulation. The challenge for co-regulation is to define, maintain and preserve policy goals while allowing for greater flexibility in the regulatory framework. |
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b)

Co-regulation combines the elements of legislation, more especially in its predictable and binding nature, with the more flexible regime of self-regulation. The challenge for co-regulation is to define, maintain and preserve policy goals while allowing for greater flexibility in the regulatory framework.

| c) | In a democratic political framework, private regulation must generally represent a development or application of public regulation, possibly replacing it in specific areas. This would include unwritten rules originating in customary practice or internal rules that the legislator and the public authorities intend, explicitly or implicitly, to enforce: codes of conduct for certain professions, for example. |
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c)

In a democratic political framework, private regulation must generally represent a development or application of public regulation, possibly replacing it in specific areas. This would include unwritten rules originating in customary practice or internal rules that the legislator and the public authorities intend, explicitly or implicitly, to enforce: codes of conduct for certain professions, for example.

| d) | The success of co-regulation and self-regulation depends on several factors: the account they take of the general interest, the transparency of the system, the representativeness and skill of those involved, the existence of assessment and supervision mechanisms and the effectiveness of the monitoring — including sanctions if necessary — and a mutual spirit of partnership between the parties concerned and the public authorities and society in general. |
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d)

The success of co-regulation and self-regulation depends on several factors: the account they take of the general interest, the transparency of the system, the representativeness and skill of those involved, the existence of assessment and supervision mechanisms and the effectiveness of the monitoring — including sanctions if necessary — and a mutual spirit of partnership between the parties concerned and the public authorities and society in general.

| e) | Co-regulation and self-regulation offer many advantages: they remove barriers to the single market, they simplify rules, they can be implemented flexibly and quickly, they free up legislative capacity and ensure the co-responsibility of the stakeholders involved. |
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e)

Co-regulation and self-regulation offer many advantages: they remove barriers to the single market, they simplify rules, they can be implemented flexibly and quickly, they free up legislative capacity and ensure the co-responsibility of the stakeholders involved.

| f) | They also have their limits, which depend primarily on effective monitoring and sanctions, certainty as to whether the parties subscribe to the codes of conduct agreed and total compatibility with all existing legal rules and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest. |
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f)

They also have their limits, which depend primarily on effective monitoring and sanctions, certainty as to whether the parties subscribe to the codes of conduct agreed and total compatibility with all existing legal rules and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest.

5.   The role of regulation, self-regulation and co-regulation: definition and legal basis

The role of regulation, self-regulation and co-regulation: definition and legal basis

a)   The need for a legal basis

The need for a legal basis

| 5.1. | The European Union’s founding text defines it as a community of law, reflecting the well-known concept of the rule of law. In a community of law, the validity of any rule depends on an enabling provision which must first be present in the founding text and subsequently in the various legislative acts that make up the regulatory pyramid. |
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5.1.

The European Union’s founding text defines it as a community of law, reflecting the well-known concept of the rule of law. In a community of law, the validity of any rule depends on an enabling provision which must first be present in the founding text and subsequently in the various legislative acts that make up the regulatory pyramid.

| 5.2. | The EU’s founding text is now composed of the TEU and TFEU treaties, with equal legal value (Article 1, para 3 TEU) and the European Charter of Fundamental Rights, which is now an intrinsic part of it and also has the same legal value (Article 6 TEU). Any EU legal act must have its foundation or legal basis in a precept of this founding text, whether this concerns direct competence to legislate, or a delegation of that competence (delegated acts and implementing acts governed by Articles 290 and 291 TFEU). |
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5.2.

The EU’s founding text is now composed of the TEU and TFEU treaties, with equal legal value (Article 1, para 3 TEU) and the European Charter of Fundamental Rights, which is now an intrinsic part of it and also has the same legal value (Article 6 TEU). Any EU legal act must have its foundation or legal basis in a precept of this founding text, whether this concerns direct competence to legislate, or a delegation of that competence (delegated acts and implementing acts governed by Articles 290 and 291 TFEU).

| 5.3. | The only competences accorded to the EU in the Treaty are those conferred on it by the Member States under the principle of conferral (Articles 4(1) and 5(2) TEU); these competences may be exclusive or shared (Article 2(1) and (2) TFEU), and their interpretation and application are limited by the principles of subsidiarity and proportionality (Article 5(3) and (4) TEU). |
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5.3.

The only competences accorded to the EU in the Treaty are those conferred on it by the Member States under the principle of conferral (Articles 4(1) and 5(2) TEU); these competences may be exclusive or shared (Article 2(1) and (2) TFEU), and their interpretation and application are limited by the principles of subsidiarity and proportionality (Article 5(3) and (4) TEU).

| 5.4. | The EU may only delegate the exercise of its legislative competence when specifically authorised to do so, and may only delegate the powers conferred on it (Article 13(2) TEU). |
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5.4.

The EU may only delegate the exercise of its legislative competence when specifically authorised to do so, and may only delegate the powers conferred on it (Article 13(2) TEU).

| 5.5. | The recognition by the EU institutions (Council, Parliament and Commission) of an ‘alternative’ area to their legislative competence can only be understood as a ‘delegation’ of the powers conferred. Accordingly, in order for this to be valid as ‘Community law’, it is vital that this possibility of delegation be clearly provided for in the founding texts, although the relevant implementing arrangements and requirements can be left to secondary legislation. |
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5.5.

The recognition by the EU institutions (Council, Parliament and Commission) of an ‘alternative’ area to their legislative competence can only be understood as a ‘delegation’ of the powers conferred. Accordingly, in order for this to be valid as ‘Community law’, it is vital that this possibility of delegation be clearly provided for in the founding texts, although the relevant implementing arrangements and requirements can be left to secondary legislation.

| 5.6. | In fact, no such legal basis can be found, either explicitly or implicitly, in the founding texts, including the European Charter of Fundamental Rights, not even with a very broad interpretation of Article 11 TEU. |
| --- | --- |

5.6.

In fact, no such legal basis can be found, either explicitly or implicitly, in the founding texts, including the European Charter of Fundamental Rights, not even with a very broad interpretation of Article 11 TEU.

| 5.7. | Lastly, the IIA does not, of itself, constitute a source of Community law; nor does it authorise, with binding effect on third parties, any delegation of powers resulting from the IIA definition of the use of alternative regulation mechanisms ‘in suitable cases or where the Treaty does not specifically require the use of a legal instrument’ (point 16). |
| --- | --- |

5.7.

Lastly, the IIA does not, of itself, constitute a source of Community law; nor does it authorise, with binding effect on third parties, any delegation of powers resulting from the IIA definition of the use of alternative regulation mechanisms ‘in suitable cases or where the Treaty does not specifically require the use of a legal instrument’ (point 16).

alternative

| 5.8. | Irrespective of the ‘legitimation’ sought in various secondary law instruments and the more or less detailed definition of the principles and conditions that such mechanisms must respect in order to be recognised at EU level by the institutions with legislative power, what is lacking is an enabling provision authorising these institutions to delegate their legislative power to such mechanisms, as a legitimate alternative to the Community regulatory instruments defined in the Treaties. |
| --- | --- |

5.8.

Irrespective of the ‘legitimation’ sought in various secondary law instruments and the more or less detailed definition of the principles and conditions that such mechanisms must respect in order to be recognised at EU level by the institutions with legislative power, what is lacking is an enabling provision authorising these institutions to delegate their legislative power to such mechanisms, as a legitimate alternative to the Community regulatory instruments defined in the Treaties.

what is lacking is an enabling provision authorising these institutions to delegate their legislative power to such mechanisms, as a legitimate alternative to the Community regulatory instruments defined in the Treaties

b)   Specific instrument for defining self-regulation and co-regulation

Specific instrument for defining self-regulation and co-regulation

| 5.9. | A separate issue is whether, rather than treating such mechanisms as an alternative to EU legislative competence, they should be used as a means of completing or supplementing that legislation, within a legal framework established and defined in advance with total transparency. |
| --- | --- |

5.9.

A separate issue is whether, rather than treating such mechanisms as an alternative to EU legislative competence, they should be used as a means of completing or supplementing that legislation, within a legal framework established and defined in advance with total transparency.

completing or supplementing that legislation, within a legal framework established and defined in advance with total transparency

| 5.10. | The EESC considers that this framework must be defined as a general rule on the basis of the Treaties and the Charter of Fundamental Rights, and not left to discretion on a case-by-case basis for each secondary or subordinate legislative act. |
| --- | --- |

5.10.

The EESC considers that this framework must be defined as a general rule on the basis of the Treaties and the Charter of Fundamental Rights, and not left to discretion on a case-by-case basis for each secondary or subordinate legislative act.

| 5.11. | This definition should be contained in a specific, binding interinstitutional agreement under Article 295 TFEU, with its application subject to possible scrutiny by the Court of Justice. |
| --- | --- |

5.11.

This definition should be contained in a specific, binding interinstitutional agreement under Article 295 TFEU, with its application subject to possible scrutiny by the Court of Justice.

specific, binding interinstitutional agreement under Article 295 TFEU

| 5.12. | Additionally, and as it is up to the EU to ‘advise’ Member States to follow the model established at EU level in their national legal systems for forms of self-regulation and co-regulation at national, regional or local level, the EESC considers that the appropriate instrument would be a recommendation setting out the principles and requirements laid down in the new IIA and advising Member States to adopt and implement them at those levels in their domestic legal system. |
| --- | --- |

5.12.

Additionally, and as it is up to the EU to ‘advise’ Member States to follow the model established at EU level in their national legal systems for forms of self-regulation and co-regulation at national, regional or local level, the EESC considers that the appropriate instrument would be a recommendation setting out the principles and requirements laid down in the new IIA and advising Member States to adopt and implement them at those levels in their domestic legal system.

recommendation

| 5.13. | Lastly, the EESC considers that as the representative body of organised civil society (Article 304 TFEU), it should be consulted on the terms of this new agreement. |
| --- | --- |

5.13.

Lastly, the EESC considers that as the representative body of organised civil society (Article 304 TFEU), it should be consulted on the terms of this new agreement.

c)   Redefining basic concepts

Redefining basic concepts

| 5.14. | The new IIA should redefine the concepts, types and methods of self-regulation and co-regulation so that they more accurately reflect the actual situation. |
| --- | --- |

5.14.

The new IIA should redefine the concepts, types and methods of self-regulation and co-regulation so that they more accurately reflect the actual situation.

| 5.15. | In fact, the concepts of co-regulation and self-regulation found in the current IIA do not tally with any recognised legal concepts, and do not properly distinguish the two types of arrangement in the light of differences in the legal systems they come under. |
| --- | --- |

5.15.

In fact, the concepts of co-regulation and self-regulation found in the current IIA do not tally with any recognised legal concepts, and do not properly distinguish the two types of arrangement in the light of differences in the legal systems they come under.

| 5.16. | Moreover, the two types defined in the IIA do not provide a full picture. For example, they do not cover certain arrangements which are the result of a combination of soft law (e.g. recommendations) or private agreements (e.g. round tables), or private transnational regulatory agreements. |
| --- | --- |

5.16.

Moreover, the two types defined in the IIA do not provide a full picture. For example, they do not cover certain arrangements which are the result of a combination of soft law (e.g. recommendations) or private agreements (e.g. round tables), or private transnational regulatory agreements.

| 5.17. | Lastly, the IIA omits the role that Community regulatory bodies should have as an independent ‘third party’ not involved in the framing and negotiation of co-regulation agreements, as occurs with various regulators at national level in a number of sectors. |
| --- | --- |

5.17.

Lastly, the IIA omits the role that Community regulatory bodies should have as an independent ‘third party’ not involved in the framing and negotiation of co-regulation agreements, as occurs with various regulators at national level in a number of sectors.

d)   Basic principles and essential requirements

Basic principles and essential requirements

| 5.18. | The future IIA should devote more attention to the clear and precise definition of a general set of basic principles and essential requirements which self-regulation and co-regulation mechanisms must meet in order to be recognised and/or recommended by the EU. |
| --- | --- |

5.18.

The future IIA should devote more attention to the clear and precise definition of a general set of basic principles and essential requirements which self-regulation and co-regulation mechanisms must meet in order to be recognised and/or recommended by the EU.

| 5.19. | It should be noted that forms of self-regulation could be created at EU level outside the IIA framework, based on freedom of bargaining and of association, which are totally legitimate if they comply with the general principles of EU law but can only be recognised in the IIA framework if they meet the requirements laid down therein. |
| --- | --- |

5.19.

It should be noted that forms of self-regulation could be created at EU level outside the IIA framework, based on freedom of bargaining and of association, which are totally legitimate if they comply with the general principles of EU law but can only be recognised in the IIA framework if they meet the requirements laid down therein.

| 5.20. | The current IIA already identifies some of these (as mentioned above) which should be kept; however, they could perhaps be better defined, especially as regards the cases identified as non-applicable when fundamental rights are at stake, in relation to major policy options, or in situations where the rules must be applied uniformly in all Member States. |
| --- | --- |

5.20.

The current IIA already identifies some of these (as mentioned above) which should be kept; however, they could perhaps be better defined, especially as regards the cases identified as non-applicable when fundamental rights are at stake, in relation to major policy options, or in situations where the rules must be applied uniformly in all Member States.

| 5.21. | However, theoreticians and the experience of various economic players have identified a whole series of other principles and requirements, which may be summarised as follows:






  a) | Self-regulation and co-regulation must be grounded in a general interest approach and must not simply be for the benefit of regulatory bodies. |
| --- | --- | --- |

5.21.

However, theoreticians and the experience of various economic players have identified a whole series of other principles and requirements, which may be summarised as follows:

a)

Self-regulation and co-regulation must be grounded in a general interest approach and must not simply be for the benefit of regulatory bodies.

| b) | They must always respect all existing legal and judicial requirements in Europe, starting with the objectives and provisions of the EU Treaty, the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights. They must also be compatible with international law and international trade agreements, especially the provisions laid down by the WTO. |
| --- | --- |

b)

They must always respect all existing legal and judicial requirements in Europe, starting with the objectives and provisions of the EU Treaty, the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights. They must also be compatible with international law and international trade agreements, especially the provisions laid down by the WTO.

| c) | They must be subject to judicial review by EU and national courts. |
| --- | --- |

c)

They must be subject to judicial review by EU and national courts.

| d) | They must be transparent, providing practical information that is accessible to all, without difficulty or prohibitive costs, and their objectives should be stated clearly and unequivocally. |
| --- | --- |

d)

They must be transparent, providing practical information that is accessible to all, without difficulty or prohibitive costs, and their objectives should be stated clearly and unequivocally.

| e) | Their achievement should be measurable using objective criteria and reliable indicators defined in advance by the Commission by means of ex ante or ex post impact studies; these could either be carried out directly or entrusted to duly certified public or private independent assessors. |
| --- | --- |

e)

Their achievement should be measurable using objective criteria and reliable indicators defined in advance by the Commission by means of ex ante or ex post impact studies; these could either be carried out directly or entrusted to duly certified public or private independent assessors.

ex ante

ex post

| f) | The representative nature of the partners should ensure that the rules agreed on are properly enforced and that the provisions are credible and effective. Their representativeness should be proportionate to the sector concerned, at inter-trade or sectoral level, as well as to the scope of the provisions adopted; if necessary, these can be assessed both quantitatively (number and proportion of members in the organisation) and, above all, in terms of quality (the ability to act on the ground, to legitimise and then ensure compliance with the provisions adopted). |
| --- | --- |

f)

The representative nature of the partners should ensure that the rules agreed on are properly enforced and that the provisions are credible and effective. Their representativeness should be proportionate to the sector concerned, at inter-trade or sectoral level, as well as to the scope of the provisions adopted; if necessary, these can be assessed both quantitatively (number and proportion of members in the organisation) and, above all, in terms of quality (the ability to act on the ground, to legitimise and then ensure compliance with the provisions adopted).

| g) | Prior consultation of the parties directly affected is also key to demonstrating the value and quality of the requirements, as well as their effectiveness. |
| --- | --- |

g)

Prior consultation of the parties directly affected is also key to demonstrating the value and quality of the requirements, as well as their effectiveness.

| h) | Supervision, evaluation and follow-up of self-regulation and co-regulation mechanisms should involve preventive measures or sanctions, in order to ensure their effectiveness. This means:






  1. | Mechanisms for self-monitoring and internal disciplinary measures, including ex ante impact assessments (16) |
| --- | --- | --- |

h)

Supervision, evaluation and follow-up of self-regulation and co-regulation mechanisms should involve preventive measures or sanctions, in order to ensure their effectiveness. This means:

1.

Mechanisms for self-monitoring and internal disciplinary measures, including ex ante impact assessments (16)

ex ante

16

| 2. | Databases to ensure more effective monitoring (17) |
| --- | --- |

2.

Databases to ensure more effective monitoring (17)

17

| 3. | Adoption of a certification label or quality mark (18) |
| --- | --- |

3.

Adoption of a certification label or quality mark (18)

18

| 4. | Conclusion of national codes implementing the EU code of conduct (19) |
| --- | --- |

4.

Conclusion of national codes implementing the EU code of conduct (19)

19

| 5. | Establishment of technical specifications in parallel with standards (20) |
| --- | --- |

5.

Establishment of technical specifications in parallel with standards (20)

20

| 6. | Drawing up practical guides on implementation (21) |
| --- | --- |

6.

Drawing up practical guides on implementation (21)

21

| 7. | Provision of a system of financial (fines) or other penalties, such as loss of accreditation or expulsion |
| --- | --- |

7.

Provision of a system of financial (fines) or other penalties, such as loss of accreditation or expulsion

| i) | Lastly, self-regulation and co-regulation mechanisms should be periodically reviewed and adapted in the light of changing situations, legislation and the aspirations of their signatories. |
| --- | --- |

i)

Lastly, self-regulation and co-regulation mechanisms should be periodically reviewed and adapted in the light of changing situations, legislation and the aspirations of their signatories.

| 5.22. | In order to strike the requisite balance between legal certainty and flexibility, the Commission will also need to decide whether these structural elements of the mechanisms should be set out in the IIA itself or in an appendix, which would have the same legal value but could be easier to update, subject to a guarantee that all stakeholders would be consulted. |
| --- | --- |

5.22.

In order to strike the requisite balance between legal certainty and flexibility, the Commission will also need to decide whether these structural elements of the mechanisms should be set out in the IIA itself or in an appendix, which would have the same legal value but could be easier to update, subject to a guarantee that all stakeholders would be consulted.

| 5.23. | This general definition should still make it possible (as should be explicitly stated in the IIA) for each legislative instrument that provides for the use of these mechanisms to lay down specific conditions and requirements for the sector concerned, as is already the case in various regulations and directives referring to them. |
| --- | --- |

5.23.

This general definition should still make it possible (as should be explicitly stated in the IIA) for each legislative instrument that provides for the use of these mechanisms to lay down specific conditions and requirements for the sector concerned, as is already the case in various regulations and directives referring to them.

e)   Main priority fields of application

Main priority fields of application

| 5.24. | The EESC does not consider, in principle, that whole sectors should be excluded. |
| --- | --- |

5.24.

The EESC does not consider, in principle, that whole sectors should be excluded.

| 5.25. | However, it recognises that there are some sectors which, for cyclical reasons, have to be treated more cautiously or made subject to more precise terms and conditions for the use of self-regulation and co-regulation. This applies in particular to financial services, public services and services of general interest, and certain areas which, although not directly referring to fundamental rights, involve the way these rights are exercised, e.g. consumer rights as mentioned in various EESC opinions. |
| --- | --- |

5.25.

However, it recognises that there are some sectors which, for cyclical reasons, have to be treated more cautiously or made subject to more precise terms and conditions for the use of self-regulation and co-regulation. This applies in particular to financial services, public services and services of general interest, and certain areas which, although not directly referring to fundamental rights, involve the way these rights are exercised, e.g. consumer rights as mentioned in various EESC opinions.

| 5.26. | The preferred areas mainly concern corporate governance and social responsibility and economic relations. |
| --- | --- |

5.26.

The preferred areas mainly concern corporate governance and social responsibility and economic relations.

| 5.27. | The EESC thus welcomes recent Commission initiatives such as the CoP platform (Pilot Community of Practice for better self- and co-regulation), based on the Commission communication on corporate social responsibility (22), or the support for the agreement among major web companies for a safer internet, as well as those resulting from the e-commerce Directive (23) and those indicated in various Community instruments. |
| --- | --- |

5.27.

The EESC thus welcomes recent Commission initiatives such as the CoP platform (Pilot Community of Practice for better self- and co-regulation), based on the Commission communication on corporate social responsibility (22), or the support for the agreement among major web companies for a safer internet, as well as those resulting from the e-commerce Directive (23) and those indicated in various Community instruments.

22

23

f)   Pros and cons

Pros and cons

| 5.28. | Previous EESC opinions have pointed out the benefits of self-regulation and co-regulation mechanisms. The main benefits noted in these are: removing obstacles to the single market, simplifying laws, flexible and speedy application, freeing up legislative circuits, and shared responsibility of participants. |
| --- | --- |

5.28.

Previous EESC opinions have pointed out the benefits of self-regulation and co-regulation mechanisms. The main benefits noted in these are: removing obstacles to the single market, simplifying laws, flexible and speedy application, freeing up legislative circuits, and shared responsibility of participants.

| 5.29. | However, they also have their limits, which depend primarily on effective monitoring and sanctions and total compatibility with all existing legal rules, and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest, as mentioned in these opinions (24). |
| --- | --- |

5.29.

However, they also have their limits, which depend primarily on effective monitoring and sanctions and total compatibility with all existing legal rules, and on the need for an adequate legislative framework in areas affecting health, safety and services of general interest, as mentioned in these opinions (24).

24

g)   Alternative dispute resolution

Alternative dispute resolution

| 5.30. | After a long and difficult gestation, extra-judicial dispute settlement systems are now regulated at Community level under the ODR Regulation and ADR Directive (25), pending implementation in the various Member States. |
| --- | --- |

5.30.

After a long and difficult gestation, extra-judicial dispute settlement systems are now regulated at Community level under the ODR Regulation and ADR Directive (25), pending implementation in the various Member States.

25

| 5.31. | Whilst theoretically not essential for the establishment of self-regulation and co-regulation mechanisms, the EESC recommends that the future IIA should stipulate as a conformity requirement that these mechanisms should always include provision for possible out-of-court alternative dispute resolution in accordance with the abovementioned Community instruments. |
| --- | --- |

5.31.

Whilst theoretically not essential for the establishment of self-regulation and co-regulation mechanisms, the EESC recommends that the future IIA should stipulate as a conformity requirement that these mechanisms should always include provision for possible out-of-court alternative dispute resolution in accordance with the abovementioned Community instruments.

h)   Role of the Community institutions, the Member States and civil society

Role of the Community institutions, the Member States and civil society

| 5.32. | All parties in the legislative process have specific responsibilities to assume for implementing these instruments. |
| --- | --- |

5.32.

All parties in the legislative process have specific responsibilities to assume for implementing these instruments.

| 5.33. | Firstly, the Commission must take the initiative to open negotiations with the European Parliament and the Council on reviewing the current IIA along the lines set out here. |
| --- | --- |

5.33.

Firstly, the Commission must take the initiative to open negotiations with the European Parliament and the Council on reviewing the current IIA along the lines set out here.

| 5.34. | Civil society, and in particular the EESC, should be consulted on the terms of this negotiation, and the final text of the agreement should be referred to the EESC prior to its official adoption. |
| --- | --- |

5.34.

Civil society, and in particular the EESC, should be consulted on the terms of this negotiation, and the final text of the agreement should be referred to the EESC prior to its official adoption.

| 5.35. | Member States should also express their views, through their parliaments and using the powers conferred by the Treaties for scrutiny of subsidiarity and proportionality, and national governments should undertake to apply the same principles in their domestic legal systems. |
| --- | --- |

5.35.

Member States should also express their views, through their parliaments and using the powers conferred by the Treaties for scrutiny of subsidiarity and proportionality, and national governments should undertake to apply the same principles in their domestic legal systems.

| 5.36. | Lastly, the Court of Justice and national courts must be given the requisite powers and means for checking the legality of the measures adopted. |
| --- | --- |

5.36.

Lastly, the Court of Justice and national courts must be given the requisite powers and means for checking the legality of the measures adopted.

Brussels, 22 April 2015.

The President of the European Economic and Social Committee

Henri MALOSSE

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(1)  http://www.eesc.europa.eu/?i=portal.en.int-opinions&itemCode=32858

1

(2)  European Governance — A White Paper, COM(2001) 428 final, in OJ C 287, 12.10.2001, and the Communications on Better Lawmaking, COM(2002) 275, 276, 277 and 278 final of 5 June 2002.

2

(3)  On this question, it is useful to see the following articles by Linda A.J. Senden: Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet? (in Electronic Journal of Comparative Law, Vol. 9, 1 January 2005) and Soft law and its implications for institutional balance in the EC (in Utrecht Law Review, IGITUR, Vol 1, No 2, December 2005, p. 79).

3

Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet?

(4)  See the SLIM project — Simpler Legislation for the Internal Market (COM(90) 559 final and COM(2000) 104 final).

4

impler Legislation for the Internal Market

(5)  http://www.eesc.europa.eu/?i=portal.en.int-opinions&itemCode=32858

5

(6)  OJ C 175, 28.7.2009, p. 26.

6

(7)  In particular the successive annual reports on monitoring the application of Community law, several reports on the strategy for the simplification of the regulatory environment, and the frequent strategic reviews of the EU’s Better Regulation programme. Noteworthy exceptions are the references made in the Commission working document — First progress report on the strategy for the simplification of the regulatory environment, Brussels, COM(2006) 690 final, 14.11.2006.

7

(8)  See the definition in Linda Senden, Soft law and its implications for institutional balance in the EC in Utrecht Law Review, IGITUR, Vol 1, No 2, December 2005, p. 79).

8

(9)  Doc. C(2014) 4136 final, 25.6.2014.

9

(10)  The Commission is referring to instruments of this type, rather than self-regulation or co-regulation, in for example its Communication on Tax policy in the European Union — Priorities for the years ahead (COM(2001) 260 final, OJ C 284, 10.10.2001, p. 6), point 4.3 in particular.

10

(11)  As Linda Senden explains in Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet?, quoted above: ‘As regards the Interinstitutional Agreement on better law-making, its having at least binding force inter partes can be defended on the basis of two arguments. Firstly, it contains a number of rather compelling terms (“agree”, “will”), which can be said to express the intention of the institutions to enter into a binding commitment. A confirmation of this intention can also be seen in its points 37 and 38 on the implementation and monitoring of the Agreement, providing, inter alia: “the three institutions will take the necessary steps to ensure that their staff have the means and resources required for the proper implementation of the provisions of this Agreement” (point (38). Secondly, where “agreed acts” are specifically intended to reinforce interinstitutional cooperation such as the Interinstitutional Agreement at issue here, it can be argued that there is a specific duty of cooperation which in conjunction with the duty of sincere cooperation laid down in Article 10 EC may actually lead to the conclusion that such an agreed act must be considered binding upon the concluding parties’.

11

Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet?,

‘As regards the Interinstitutional Agreement on better law-making, its having at least binding force inter partes can be defended on the basis of two arguments. Firstly, it contains a number of rather compelling terms (“agree”, “will”), which can be said to express the intention of the institutions to enter into a binding commitment. A confirmation of this intention can also be seen in its points 37 and 38 on the implementation and monitoring of the Agreement, providing,

“the three institutions will take the necessary steps to ensure that their staff have the means and resources required for the proper implementation of the provisions of this Agreement” (point (38). Secondly, where “agreed acts” are specifically intended to reinforce interinstitutional cooperation such as the Interinstitutional Agreement at issue here, it can be argued that there is a specific duty of cooperation which in conjunction with the duty of sincere cooperation laid down in Article 10 EC may actually lead to the conclusion that such an agreed act must be considered binding upon the concluding parties’.

(12)  As clearly set out in the Commission’s 2002 Action plan, ‘unlike co-regulation, self-regulation does not involve a legislative act’ (COM(2002) 278 final, p. 11).

12

‘unlike co-regulation, self-regulation does not involve a legislative act’

(13)  Including the following:

13

| a) | The Resolution of the Council and the Representatives of the Governments of the Member States meeting within the Council of 1 December 1997 on a code of conduct for business taxation. |
| --- | --- |

a)

The Resolution of the Council and the Representatives of the Governments of the Member States meeting within the Council of 1 December 1997 on a code of conduct for business taxation.

| b) | Regulation (EC) No 80/2009 on a Code of Conduct for computerised reservation systems, OJ L 35, 4.2.2009, p. 47. For further examples, see: http://www.eesc.europa.eu/?i=portal.en.int-opinions&itemCode=32859 |
| --- | --- |

b)

Regulation (EC) No 80/2009 on a Code of Conduct for computerised reservation systems, OJ L 35, 4.2.2009, p. 47. For further examples, see: http://www.eesc.europa.eu/?i=portal.en.int-opinions&itemCode=32859

(14)  Rapporteur: Monica Frassoni (A5-0313/2003 of 25 September 2003).

14

(15)  Particular reference should be made to the positions held by the EESC in the following opinions:

15

| — | OJ C 14, 16.1.2001, p. 1, on Simplifying rules in the single market (SMO); |
| --- | --- |

—

OJ C 14, 16.1.2001, p. 1, on Simplifying rules in the single market (SMO);

Simplifying rules in the single market (SMO)

| — | OJ C 48, 21.2.2002, p. 130, on Simplification (additional opinion); |
| --- | --- |

—

OJ C 48, 21.2.2002, p. 130, on Simplification (additional opinion);

Simplification

| — | OJ C 112, 30.4.2004, p. 4; |
| --- | --- |

—

OJ C 112, 30.4.2004, p. 4;

| — | OJ C 255, 14.10.2005, p. 22, on Priorities of the Single Market 2005-2010; |
| --- | --- |

—

OJ C 255, 14.10.2005, p. 22, on Priorities of the Single Market 2005-2010;

Priorities of the Single Market 2005-2010

| — | OJ C 24, 31.1.2006, p. 52, on How to improve the implementation and enforcement of EU legislation; |
| --- | --- |

—

OJ C 24, 31.1.2006, p. 52, on How to improve the implementation and enforcement of EU legislation;

How to improve the implementation and enforcement of EU legislation

and in particular the information report of 24 January 2005.

(16)  Here we should mention:

16

a self-monitoring mechanism established by the EFCA to ensure implementation of the 1992 Code of Conduct for engineering firms and consultancies;

the binding provisions of a code of ethics for EU lawyers, adopted in 1988 by the European Bar Association;

a disciplinary committee established by a code of conduct for asset managers to ensure its implementation and, if appropriate, decide on sanctions such as warnings, reprimands or proposals to disbar;

the European Advertising Standards Alliance (EASA), set up in 1992 to coordinate and promote self-regulation in the advertising industry;

monitoring by the BDI (Bundesverband der Deutschen Industrie) of the proper implementation of the agreement concluded in 1995 in Berlin between government and businesses on the conditions and monitoring of the reduction of CO2 emissions in Germany, in accordance with the Kyoto Agreement.

Bundesverband der Deutschen Industrie

2

(17)  One such database for engineering training establishments was set up in 1987 by the European Federation of National Engineering Associations (FEANI), in application of a European code of ethics which ensures the mutual recognition of training and qualifications; it has 30  000 members.

17

(18)  For example: the mark created by members of the European Insurance Committee to certify application of a European code of good practice for the internet; and security marks for e-commerce, following on from the code of conduct on distance selling.

18

(19)  As occurred with the implementation of a European code of conduct adopted in 1995 and amended in 2004, by the Federation of European Direct Selling Associations.

19

(20)  For example, the quantified requirements to reduce the energy consumption of washing machines, agreed on in 1999 by the European Committee of Domestic Equipment Manufacturers (CECED) in conjunction with the European Commission.

20

(21)  Examples are:

21

| — | the training standards established, by means of a guide, pursuant to a code of professional rules for European conservators/restorers; |
| --- | --- |

—

the training standards established, by means of a guide, pursuant to a code of professional rules for European conservators/restorers;

| — | the user’s guide for internet service providers drawn up in 2001 by the Milan Chamber of Commerce to promote good practice in this field. |
| --- | --- |

—

the user’s guide for internet service providers drawn up in 2001 by the Milan Chamber of Commerce to promote good practice in this field.

(22)  COM(2011) 681 final.

22

(23)  Directive 2000/31/EC (OJ L 178, 17.7.2000, p. 1).

23

(24)  Information report INT/204 of 24.1.2005 on the State of co-regulation and self-regulation in the Single Market.

24

(25)  Regulation (EU) No 524/2013 and Directive 2013/11/EU in OJ L 165, 18.6.2013, p. 1 and p. 63.

25

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APPENDIX

to the Opinion of the European Economic and Social Committee

The following point of the section opinion, which was replaced by an amendment adopted by the Assembly, received at least one-quarter of the votes cast (Article 54(4) of the Rules of Procedure):

Point 5.21 h)

Monitoring and follow-up of self-regulation and co-regulation mechanisms should involve preventive measures or sanctions, in order to ensure their effectiveness. This means:

| 1. | Mechanisms for self-monitoring and internal disciplinary measures, including ex ante impact assessments; |
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1.

Mechanisms for self-monitoring and internal disciplinary measures, including ex ante impact assessments;

| 2. | Databases to ensure more effective monitoring; |
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2.

Databases to ensure more effective monitoring;

| 3. | Adoption of a certification label or quality mark; |
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3.

Adoption of a certification label or quality mark;

| 4. | Conclusion of national codes implementing the EU code of conduct; |
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4.

Conclusion of national codes implementing the EU code of conduct;

| 5. | Establishment of technical specifications in parallel with standards; |
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5.

Establishment of technical specifications in parallel with standards;

| 6. | Drawing up practical guides on implementation; |
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6.

Drawing up practical guides on implementation;

| 7. | Provision of a system of financial (fines) or other penalties, such as loss of accreditation or expulsion. |
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7.

Provision of a system of financial (fines) or other penalties, such as loss of accreditation or expulsion.

Voting result

| For: | 91 |
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| Against: | 41 |
| Abstentions: | 28 |

For:

91

Against:

41

Abstentions:

28

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