EN Official Journal of the European Union C 325/3

Opinion of the European Economic and Social Committee on EU and national administration practices and linkages

(2006/C 325/03)

On 19 January 2006, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on EU and national administration practices and linkages

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 14 November 2006. The rapporteur was Mr van Iersel.

At its 431st plenary session held on 13 and 14 December 2006 (meeting of 14 December 2006), the European Economic and Social Committee adopted the following opinion by 102 votes to 5 with 48 abstentions.

1. Executive summary

1.1 The Council of Ministers is decisive in the decision-making process in the EU. However, national coordination and policy-making has never been deeply discussed at EU level. The EU is unique in sharing sovereignty. As a consequence the EU requires a transparent multilevel governance in a broad field of areas. The EESC is of the opinion that well-defined and effective national political and administrative procedures in Member States are, together with better lawmaking and implementation and enforcement, an integral part of EU good governance. They will also enhance transparency and clarify the impact of EU law and policies towards society at large. The analysis of national practices reflect substantial differences among Member States regarding political and administrative management of EU matters. Such analysis should stimulate a discussion on governmental — political and administrative — procedures dealing with the EU. The most interesting and best practices may be highlighted. An open debate across Europe about how to deal best with European affairs at national level will also benefit the debate on better lawmaking and implementation and enforcement. The EESC advocates a continuous study on national administrative practices and procedures.

2. Introduction

2.1 In 2005 the EESC adopted an opinion on Better lawmaking together with an opinion on Implementation and enforcement. Both opinions were based on the principle that under the rule of law a good law is an enforceable and enforced law (1). EU-law has to come into being in a transparent, democratic and accessible process which underpins the legitimacy of the EU. Internal practices of governments are also part of that process.

2.2 It is noticeable and regrettable that after many years of European integration EU law and policy are not yet sufficiently integrated in a number of Member States as a political and administrative layer in domestic policy-making in those areas in which they have committed themselves to common policies and to carry out the results of common decision-making.

2.3 In the process of lawmaking, transposition and implementation the Member States are key. This means that the way these processes are managed by the Member States is also crucial: the better the organisation, the better the final outcome for the EU, in the self-interest of the Member States and for society at large.

2.4 An effective and transparent approach of EU matters at national level is indispensable as 25 Member States, each with their own administrative culture and traditions as well as process management, have to respect the same acquis, which includes similar requirements regarding lawmaking, transposition, implementation and enforcement of EU law.

2.5 National coordination and policy-making has never been deeply discussed at EU level, partly because of subsidiarity, partly because of a lack of genuine interest among the decision making bodies in Brussels and in the capitals. Remarkably, the academic world has so far, except a few exceptions, not paid much attention to these aspects either. But it is clear that the way national coordination and policy-making are organised and functioning may well have substantial effects on decision-making in Brussels and subsequently on transposition and implementation of EU law. Consequently, in discussing better lawmaking and implementation, the organisation of national coordination and policy-making has also to be taken into consideration.

2.6 This is far from a purely technical matter. It is political because of the desirable discussion on the improvement of the organisation and internal procedures in the Member States and on a possible redefinition of the mutual responsibilities between Member States and Commission. Parallel to this, transparency and accessibility of these processes in the Member States are also needed in order to improve communication between the EU and society and to dispel confusion and suspicion among citizens.

2.7 For obvious reasons the Commission has been very reluctant to discuss national procedures. Nonetheless the Commission rightly stated in 2001 (2): ‘It is time to recognise that the Union has moved from a diplomatic to a democratic process, with policies that reach deep into national societies and daily life. There is a need for the Council to develop its capacity to coordinate all aspects of EU policy both in the Council and at home.’

2.8 As for ‘transposition’ of EU law a Commission Recommendation in 2004 makes practical proposals which address directly the Member States in order to promote correct implementation and enforcement of adopted EU law (3). Several of these proposals can also be very helpful to improve the national mechanisms regarding coordination and policy-making in preparation of EU law and carrying out agreed policy objectives.

2.9 Undeniably, the need for streamlining national political and administrative procedures in the Member States has become more urgent since: — the introduction of Scoreboards on implementation of EU-law, — the involvement of the EU in an increasing number of areas, — the negotiations on the Constitutional Treaty, and — the enlargement of the Union and forthcoming new memberships. But a lot of work has still to be done.

3. General context

3.1 The EU is not a State nor is it on its way to becoming a State. The Commission is a centre with the right of initiative in well-defined areas. The Council is master in decision-making on legislation and budget, with often an influential interference of the EP as co-legislator and the Court of Justice as guardian of EU-law. There is no decisive leadership. The EU is rather a very complex reality of mutual dependencies among many actors. It is unique in having created a grid of national and federal responsibilities.

3.2 The EU is unique in sharing sovereignty. As a consequence the EU requires a transparent multilevel governance in a broad field of areas, but the implications of this for the management and administration of its constituent parts, the Member States, are far from clear (4). This is the case in matters of shared responsibility between the Members States and ‘Brussels’, but also when independent responsibilities of the Member States themselves are concerned, such as in implementing the Lisbon Strategy.

3.3 During the last decades the EU has got involved in an increasing number of areas. It is a dynamic process in which national capitals, and increasingly regional entities, social and economic actors and civil society are involved. Recently, ‘Third Pillar’ issues, i.e. Justice and Home Affairs are beginning to be implemented. So far, however, in these areas no infringement procedures can be brought by the Commission against Member States to remedy deficiencies in national implementation (5).

3.4 Notwithstanding the often direct consequences of EU-law and EU decision-making for individual citizens, companies and organisations, the EU is in many Member States still primarily perceived as an international body outside the national State organisation, in some Member States even as pure foreign policy. This tends to create confusion and a counterproductive distance. Problems that the EU is meeting in the political and administrative setting in Member States are largely due to this state of mind.

3.4.1 In the political setting the position and role of the national Parliaments are of paramount importance. There is often still a gap between the extent to which they are informed and committed, and the process of decision-making at EU-level. This increases also the distance between the EU and society.

3.4.2 A second element in this context is the difference of perceptions and commitments of politicians, national administrations and involved private actors.

3.4.3 Thirdly, when transparency in policy making is lacking, ambiguity may arise about the way and the decisive moment at which national points of view are defined and negotiated, domestically as well as at EU level. Illustrative is the existence of European sections in various ministries, which, although they are dealing with substantive issues and not just with coordination, are more or less separated from the sections responsible for domestic policies. This may negatively affect the sensitivity and attention of the latter for European aspects. Comparable problems of coordination exist between the standing committees in the national Parliaments.

3.4.4 Fourthly, decision making at national level regarding ‘Europe’ is too often separated from executive directorates or agencies, and far too aloof from regional and local entities.

3.5 There is evidence that Member States are quite reluctant to adapt administrative and political procedures. Should they not be adjusted to the increasing complexity and significance of the EU, this might lead to continuous frictions at different levels of decision-making.

3.6 Specific political interests, traditions and rhetoric — national as well as party political — are usually on the agenda. These tend to create an artificial gap between Brussels-based decisions and perceived national interests and procedures.

3.7 This development is the main source of the peculiar paradox that on the one hand governments agree in the EU — ‘Brussels’ — upon policy objectives and legislation but on the other often rebuff them as soon as they are discussed in the national political setting.

3.8 This gap can turn out to be very confusing for interested parties and the public at large. It is certainly adding to the serious legitimacy crisis of the EU, as there exists a direct relationship between the quality and reliability of management of EU policy objectives at national level, and public opinion and expectations.

3.8.1 The EESC points out in this connection that a possible crisis in the legitimacy of the EU should not be attributed first and foremost to communication problems. The first step in winning back the confidence of citizens in the EU must continue to be finding a solution to the urgent problems of the Union.

3.9 In this context it is fair to say that a number of organisations of social partners and civil society at large are reflecting more or less a similar pattern of dichotomy between handling ‘Brussels’ and national affairs.

3.10 The reputation of the EU can be undermined as national critics are mostly targeting ‘Brussels’ and the Commission, and rarely the Member States themselves, who are the main actors in the integration process.

3.11 National lobbies tend to act correspondingly when it comes to transposition and implementation. Sometimes, their attitude results from opportunities offered by critical compromises in the Council which give room for national discretionary power. On other occasions lobbies make simply use of unjustified opportunities created by the national legislators, which lead to gold-plating and cherry-picking.

3.12 A national based orientation in EU affairs may also be fostered by the tendency to use softer instruments instead of strict legal instruments, such as the open coordination method: the more room is provided for national interpretation, the larger the differences per country.

4. Coordination at national level

4.1 It looks as if until recently in many Member States the question of streamlining processes and procedures on national level has primarily been addressed by spontaneous developments within and between ministries without looking for a well-structured approach. All Member States are developing a more or less structured coordination procedure (and corresponding organs), but in many cases these cover only the final stage of national decision making. The preceding stages tend to be organised in a less orderly fashion.

4.2 Such a picture reflects a complex model of intergovernmental cooperation instead of the more dynamic process of EU lawmaking with its complicated political bargaining. In reality, the European integration has created very broad and intensive contacts with innumerable linkages between all those in the public and private sector who are involved in lawmaking and administrative negotiations and procedures in Europe. There are many interlinkages in the preparation of European legislation, including consultations with experts and stakeholders, in negotiating new legislation, in transposing, implementing and enforcing approved legislation, in maintaining European law by national judicial authorities and the European Court of Justice, and finally, in discussing national experiences with European law with the European legislator. These processes also require a high degree of professionalism in the overall organisation of the national administrations.

4.3 Both the need for adequate management and coordination at national level and effective international networking increases as EU policy objectives and decision making are intimately connected and intertwined with national policy objectives. The Lisbon strategy provides an illustrative example: it was defined at EU level but, in practice, EU decision making concerns only a limited part of the strategy. The responsibility for the main aspects remains with the Member States. But the final result is dubious when, because of the lack of compelling interactive procedures between the EU and national policies, Member States do not carry out agreed objectives, or only partially.

4.4 The intensification of European integration, endorsed at successive EU-summits as well as in numerous Council meetings in close cooperation with the European Commission, should be reflected in the political and administrative organisation in the Member States. But in this respect, there are substantial differences between the individual Member States (6). As a result of historic developments in each country differences concern nearly all aspects of political and governmental life.

4.5 Among others, these concern procedures and basic concepts of government, hierarchy between ministries, quality of ministries and centralised vs. decentralised systems.

4.6 More particularly, in relation to the EU there are sensible political differences between the Member States concerning: — the position and power of the Prime Minister or the Head of Government, — the role and function of inner-cabinet ministers, — the relationship between the Prime Minister and the minister of Foreign Affairs and/or the ‘junior’ minister for Europe, — coalition governments or majority governments, and their priorities, — the relationship between government and Parliament and the role of the national Parliament in the European integration process, — the extent to which better EU lawmaking and implementation are taken seriously.

4.7 Comparable differences exist regarding the authority and working methods between and within ministries: — the organisation of the Office of the Prime Minister/Head of Government and its institutional position, — the extent to which ‘Chinese Walls’ exist or not between the ‘European’ and other sections in ministries, — the moment at which genuine interest in a particular proposal in the ministries starts, — the degree and level of coordination as regards ‘Brussels’, — the moment coordination starts as regards a particular proposal, — the role of the ministry of Foreign Affairs and, correspondingly, the degree of independence of other ministries, — the (ongoing) training of civil servants, — the way stakeholders in society are consulted during negotiations and in the implementation phase, — the way directives are usually implemented, either via formal national legislation or via governmental regulations with a lighter touch.

4.8 Division of labour between national ministries can also have serious consequences for the Council. To mention one example: in the Competitiveness Council sometimes four or five ministries per country are involved. This impedes a long-term strategy, it blocks leadership, and it contributes to policy fragmentation.

4.9 Situations are becoming still more complicated when there exists also a division of competences between national and regional level, such as in federal systems. Complexity and sometimes lack of transparency in relationships between national and regional levels can easily create further confusion.

4.10 Inappropriate practices on the part of the Commission and the Council secretariat are also prohibiting efficient decision-making procedures in the Member States. For example, the circulation of final drafts of documents by the Council at a very late stage before the meeting at which they are to be examined thwarts even the most efficient national decision-making procedures.

4.11 The various divisions of labour between ministers and departments in the Member States often impede effective international networking or long-term personal relationships of responsible civil servants across Europe.

4.12 It still is daily experience that a substantial part of the legal world in general and of the national judges who are supposed to take European law into full consideration are often lacking sufficient knowledge. This does not encourage national administrations to accept spontaneously the EU as a political and administrative layer in domestic policy-making.

5. Current developments

5.1 A continuous number of infringement procedures, a key function of the Commission to remedy deficiencies in national implementation of EU legislation, and the extension of successful EU-Scoreboards regarding the transposition of EU law in national law have raised awareness, that national procedures must be adjusted to EU requirements.

5.2 The process of introduction of the acquis communautaire in ten new Member States by 2003 brought about similar attention for the same theme.

5.3 The proposed Constitutional Treaty aimed inter alia at connecting national political procedures with the preparation of EU law, among others by integrating national Parliaments at an early stage into EU procedures.

5.4 In spite of occasional improvements in coordination procedures it must be acknowledged that most national administrations are hesitant to change internal bureaucratic procedures, and certainly to discuss their practices among each other or at EU level. Subsidiarity is the name of the game.

5.5 Besides subsidiarity, it is a fact of life, and often a complicating factor in the relationship between the EU and the Member States, that EU decision making has usually a different cycle from that of national policy making.

5.6 Although adjustments in coordination procedures are discussed in Member States (7), differences in approach and practices between Member States persist.

5.6.1 In Denmark, for instance, the Parliament is involved in the preparation of EU law and EU policies at an early stage, which adds to a systematic visibility of what is going on in the EU and to transparency. At the same time effective adjustments in administrative procedures and interrelationships in handling national and EU law have been put in place in Denmark for quite a long time.

5.6.2 In the UK administrative procedures have been adopted to bring EU affairs closer to domestic policy-making, among others by an effective coordination mechanism among the ministries and by giving an extensive mandate to the Cabinet Office regarding EU law. The House of Commons has an opportunity to scrutinise EU legislation and the House of Lords is actively involved in commenting EU law and EU policies.

5.6.3 By contrast, in France and Spain, Parliament gets usually involved at a late stage. This influences the place of the EU in the public debate. EU law and EU policies are primarily a matter of concern within the national administration and of the political leadership. It is noteworthy that the main body of the École nationale d'administration (ENA) has been moved from Paris to Strasbourg as a sign of the increasing impact of the EU in France.

5.6.4 In the Netherlands some unfortunate experiences in implementing EU law have raised increasing interest about management and procedures regarding EU matters. Reorganisation of internal procedures in the ministries, connecting the ‘national’ and ‘European’ areas of interest, is on its way, which in practice proves to be a difficult process. The same goes for attempts to get Parliaments involved more effectively and in a more timely way in EU affairs. In Luxemburg procedures in Parliament have been adjusted successfully.

5.6.5 In the ‘new’ Member States procedures that have been introduced or adjusted in the run-up to EU membership, when the acquis had to be integrated in national law, bear fruit, where they have remained intact. An extensive twinning project between experts of ‘old’ and ‘new’ Member States adds to the capacity of the new Member States to adopt best practices in carrying out EU law which may as well encourage efforts to integrate EU matters at an earlier stage of decision-making.

5.6.6 In federal systems, such as in Germany and Spain, it is certainly not easy to bridge the gap between the regions — Länder and Provinces — and ‘Europe’. Especially in those cases where the regions are exclusively responsible for carrying out EU law — which is the case in Germany anyway — sometimes serious problems arise. All Länder have a representation in Brussels in order to be more directly involved in EU affaires which are relevant to them.

5.7 The introduction and wide use of the system of ‘national experts’ as an ongoing process of interaction between national administrations and the Commission may help to increase a fruitful interaction between the national level and ‘Brussels’.

5.8 The European Commission provides support to a number of successful co-operation networks between Member States' administrations and between the European Commission and national administrations (e.g. SOLVIT, consumer networks etc.). The Commission is also in the process of setting up the Internal Market Information (IMI) system which aims to help Member States' administrations to easily apply Internal Market rules.

5.9 The system of ‘national regulators’ in various fields, such as competition, telecommunication, energy and others, contributes to convergence in carrying out agreed EU policies in Member States.

5.10 More generally, differences of approach remain between countries which elaborate new structures to improve the interaction between the EU and national management of EU affairs and those which abstain hitherto from rethinking organisation and procedures. These processes are depending primarily on political will.

6. Conclusions and recommendations

6.1 Conclusions

6.1.1 The way national administrations are organised is the result of the historic development in each country. Consequently, differences between countries concern nearly all aspects of political and public life. To a large extent, this will remain so in the future. But these differences should not necessarily stand in the way of adjustment, or even convergence of procedures and working methods regarding the preparation and implementation of EU law and agreed EU policies.

6.1.2 The EESC is of the opinion that well-defined and effective national political and administrative procedures are, together with better lawmaking and implementation and enforcement, an integral part of EU good governance.

6.1.3 Consequently, it would be highly desirable that adjustment and improvement of national procedures be assessed in relationship with European-level procedures and the EU priorities of better lawmaking and implementation and enforcement of EU-law, as these objectives depend to a large extent on a satisfactory national approach in all Member States.

6.1.4 The organisation of EU matters in the Member States is their own affair. However, it would be a big step forward, if political forces and national administrations would consider EU affairs as an integral part of domestic policy-making, and would acknowledge publicly that they themselves are the EU and would act accordingly. Political will in this direction is decisive.

6.1.5 Such a step would be fully in line with the special characteristics of the relationship between EU and national policies and their consequences which are intertwined and ever more mutually dependent. The acknowledgement of the EU as a political and administrative layer in domestic policy-making would also be supportive to better EU lawmaking.

6.1.6 In some Member States, notably in Denmark, and recently Luxemburg, proposals of the Commission are put on the political agenda at an early stage. This includes a systematic involvement of the Danish Parliament. In other Member States similar adjustments are being proposed. However, it is fair to say that most national Parliaments do not feel at ease in getting harmoniously committed to EU policies.

6.1.7 The proposed ‘Constitutional Treaty’ also aimed at integrating national Parliaments into EU procedures at an early stage. Recently Parliaments received in line with this thinking proposals for EU policies and legislation directly from the Commission (8). These procedural changes are bound to foster national discussions on European policies and legislation and its implications in most Member States at an earlier stage than so far.

6.1.8 More emphasis on a political discussion and consultation within the national context at an early stage can foster commitments of governments in negotiations on concrete issues.

6.1.9 Society at large demands transparency which may foster trust and legitimacy. Consequently, it would be desirable that administrative and political procedures in Member States regarding EU affairs should be brought into line with this claim. Efficient and transparent procedures would not only foster the rule of law, but they would also add to better communication between the EU and business circles, social partners and civil society, creating better understanding, and eventually, participation and commitment (9).

6.1.10 Consequently, transparency and communication are also of paramount importance for existing or newly established consultations of interested private parties in the Member States, which are sometimes underestimated.

6.1.11 Improvement of the regulatory environment is a priority shared by all Institutions. So is the coherence of the Single Market and, since 2000, the realisation of the Lisbon strategy. All these objectives will be better served when national and EU decision-making processes are effectively interconnected.

6.1.12 Although subsidiarity is a principle anchored in EU thinking and practices, it must be always kept in mind that management and implementation of EU law and obligations in Member States often have an effect on other countries and societies in the Union. This means that public and private partners have an interest in the way each individual country manages its own relationship to the EU. In other words, the organisation and working methods of national administrations are part of the management of the EU as a whole.

6.1.13 Adequate procedures and monitoring of EU affairs in the Member States would also greatly help the Commission and would benefit the quality of its work.

6.2 Recommendations

6.2.1 In addition to suggestions made in its Opinion Better Implementation of EU legislation (10) the EESC recommends that penetrating analyses of national and regional procedures and practices regarding EU affairs, both political and administrative, are made among the 25 in order to get a full picture.

6.2.2 All aspects related to the way in which national political and administrative decision-makers are involved as mentioned in Chapter 4 ‘Coordination at national level’ deserve specific attention. In addition to its increasing activities regarding better lawmaking and implementation and enforcement of EU law, the Commission can play an initiating and supportive role in this field.

6.2.3 The analyses will be a fruitful starting point for a discussion on the effectiveness of governmental — political and administrative — procedures dealing with the EU. The overall picture should be to highlight desirable and best practices. It has to create a sound basis for an open debate across Europe about how to deal best with European affairs at national level. This will also benefit the debate on better lawmaking and implementation and enforcement.

6.2.4 An overall analysis and manageable conclusions to be drawn from it is a very complicated subject. National and regional authorities also increasingly express the need of an exchange of views and knowledge in view of an appropriate management of EU affairs. The EESC advocates a continuous study of national practices and procedures.. Bilateral exchanges of view between national authorities can also be encouraged, on the model, for example, of the IMPEL (11) knowledge centre and the SOLVIT network.

6.2.5 Comments of business, social partners and civil society should also systematically be taken into account. All these parties have a keen interest in the process of better lawmaking and implementation and enforcement which requires also transparency and effective consultations at national level right from the beginning.

6.2.6 The Internal Market Information (IMI) system for the facilitation of information exchange between Member States' administrations which aims at better application of Internal Market rules should be further developed and implemented.

6.2.7 An EU Vademecum regarding national procedures and practices would be useful. Such a Vademecum which takes into account the results of the knowledge centre could serve as a guidance for the process of well functioning national procedures, better lawmaking and implementation and enforcement in its entirety.

Brussels, 14 December 2006. The President of the European Economic and Social Committee Dimitris DIMITRIADIS

(1) OJ C 24, 31.1.2006.

(2) White paper on European Governance, COM(2001) 428 final.

(3) Commission Recommendation of 12 July 2004 on the transposition into national law of Directives affecting the internal market, (2005/309/EC).

(4) Coordinating European Union Affairs: How do different actors manage multilevel complexity?, Adriaan Schout and Andrew Jordan, 29 May 2006. The study analyses practices of coordination within the Commission, Germany, the United Kingdom and the Netherlands. It reveals a wide range literature on sectoral aspects of this general theme, which shows at the same time that an overall analysis of practices in 25 Member States is still lacking.

(5) See the Informal Justice and Home Affairs Ministerial Meeting, Tampere 20-22 September 2006 on the issue of ‘Improvement of decision-making in justice and home-affairs’.

(6) ‘De Omzetting van Europese richtlijnen: Instrumenten, technieken en processen in zes lidstaten vergeleken’ (the transposition of European directives: a comparative study of instruments, techniques and processes in six Member States), Prof. Dr. B. Steunenberg and Prof. Dr. W. Voermans, University of Leyden, the Netherlands, 2006. Besides an in-depth analysis and recommendations regarding the Dutch situation the comparative study discusses Denmark, France, Germany, Italy, Spain and the United Kingdom.

(7) See Steunenberg en Voermans, Leyden, 2006.

(8) See conclusions European Council, June 2006.

(9) It is noteworthy that the initial reaction of public opinion in Denmark regarding the Constitutional Treaty was rather positive, just because more democratic and transparent procedures were foreseen in the Treaty. By contrast, the Comité de dialogue, a platform of the government and the social partners in France to discuss European affairs, has no longer practical significance.

(10) OJ C 24 of 31.01.2006. In this Opinion the EESC argues that, although Member States ‘should continue to enjoy discretion in determining their own implementation and procedures’, the next step ‘in the cooperation between EU Institutions and national authorities is strengthening or streamlining of national administrative capacity for policy application’, par. 4.2.1 and 4.2.4. In chapter 4 proposals are made to that end.

(11) The ‘Network for the Implementation and Enforcement of Environmental Law’ (IMPEL), established in 1992, is an informal network of European regulators concerned with the implementation and enforcement of environmental legislation. 30 countries — all Member States of the European Union, the two acceding countries Bulgaria and Romania, the two candidate countries Croatia and Turkey as well as Norway — and the European Commission now participate in the network.