Opinion of the Committee of the Regions on the "Commission report to the European Council Better lawmaking 1999"
Date: 2000-04-13
Institutions: European Committee of the Regions
Subjects: access to information, citizens' Europe, drafting of EU law, principle of subsidiarity

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Official Journal of the European Communities

8.8.2000

Opinion of the Committee of the Regions on the‘ Commission report to the European Council
“Better lawmaking 1999”’

(2000/C 226/16)

THE COMMITTEE OF THE REGIONS,

having regard to the Treaty establishing the European Community, and in particular Article 5 thereof;

having regard to the Amsterdam Treaty, and in particular Protocol No. 7 on the implementation of the
principles of subsidiarity and proportionality and Declaration No. 39 on the quality of the drafting of
Community legislation;

having regard to the presidency conclusions of 11 December 1999 (Helsinki) which state: ‘The European
Council welcomes the Commission’s report entitled “Better lawmaking” which confirms the priority
attached to the principles of subsidiarity and proportionality and to full application of the relevant Treaty
Protocol;’

having regard to the Commission’s report to the European Council ‘Better lawmaking 1999’ (COM(1999)
562 final);

having regard to the European Parliament resolution on the Commission’s report to the Council ‘Better
lawmaking 1997’, adopted on 18 December 1998;

having regard to its opinion of 11 March 1999 on the principle of subsidiarity ‘Developing a new culture
of subsidiarity. An appeal by the Committee of the Regions’ (CdR 302/98 final); (1)

having regard to its opinion of 15 September 1999 on the Commission report to the European Council
‘Better lawmaking 1998 — a shared responsibility’ (CdR 50/99 fin); (2)

having regard to the decision of its Bureau of 17 November 1999, in accordance with Article 265(5) of
the Treaty establishing the European Community, to issue an opinion on this matter and to instruct the
Commission for Institutional Affairs to draw up this opinion;

having regard to the opinion of the Commission for Institutional Affairs of 8 March 2000 (rapporteur:
Mr Stoiber, D-PPE) (CdR 18/2000 rev. 1);

whereas the principle of subsidiarity, introduced into the current Article 5 of the Treaty establishing the
European Community by the 1992 Maastricht Treaty, is a legal principle which must continue to be
developed and which is designed to ensure that decisions in the Union are taken close to citizens;

whereas under Article 5(1) of the Treaty establishing the European Community, the principle of
subsidiarity, as outlined in the Treaties and in Protocol No. 7 to the Amsterdam Treaty, relates to areas
which do not fall within the exclusive competence of the Community and offers guidance on how such
areas should be dealt with at Community level, while upholding the existing corpus of Community law
and keeping an institutional balance;

whereas in a Europe with an increasing number of fields in which the EU is endeavouring to find
Community solutions, strict adherence to the subsidiarity principle is now particularly important in order
to ensure that adequate account is taken of regional and local interests,

(1) OJ C 198, 14.7.1999, p. 73.
(2) OJ C 374, 23.12.1999, p. 11.

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adopted the following opinion at its 33rd plenary session of 12 and 13 April 2000 (meeting of
13 April).

1. The Committee of the Regions’ position on the Com-

mission report

1.1.
In its report ‘Better lawmaking 1999’ the Commission
describes the principles of subsidiarity and proportionality as
a ‘changing background’ that must be further developed.

(Art. 5, para. 1, EC Treaty); the existing rules are task- and
goal-oriented.
In this context the Committee has already
proposed on several occasions that a debate should begin
forthwith on the distribution of powers, so that the regions
and local authorities of the Member States have an opportunity
to extend their scope for action.

1.2.
However, it also points out that increasingly there are
important spheres in which even more Community legislation
is necessary. It refers here (a) to the new provisions of the
Amsterdam Treaty, public health and the decision of the
Tampere European Council to create an area of freedom,
security and justice, and (b) to the sphere of foodstuffs.

The Committee agrees with the Commission that new
1.3.
Community legislation must be possible on the basis of the
Treaty provisions. But we must ask whether the desired
objectives could also be achieved through measures taken by
the Member States and/or by the regions. The answer to this
question, also in the areas mentioned by the Commission,
depends entirely on circumstances and requirements.

1.4.
The Committee agrees with the Commission that the
subsidiarity and proportionality principles will become even
more pivotal in the context of enlargement. The basic question
arises: what impact will enlargement have on Community
policies. The closer we move towards enlargement, the more
pressing will become the need to specify which tasks must
really be dealt with at European level and how to implement
effectively new forms of partnership between the different
levels of governance.

The Intergovernmental Conference must address the question
of subsidiarity and proportionality and come forward with
proposals for each policy area. Where possible, the need for,
and scope of, EU action must be reduced by decentralization
or alternatives to legislation. Self-regulation and voluntary
agreements produce far better results than legislation; in other
areas more EU action may be required.

1.6.
Under the EC Treaty, the subsidiarity principle does
not apply to legislation which falls within areas of EU
exclusive competence. Despite this qualification, the European
Commission has interpreted exclusive Community com-
petence in Article 5(1) of the EC Treaty very broadly in the
past and there is thus cause for concern that this practice will
It would
curtail
therefore be useful to specify in the Treaty or in a Treaty
Protocol what the areas of exclusive Community competence
are.

the impact of the subsidiarity principle.

1.7.
Although the general provision in Article 308 may
have been justified at the beginning of the integration process,
in order to cover any unintended competence loopholes and
to ensure that integration was achieved quickly, this article is
obsolete and should be removed from the Treaty. The regions
and local authorities are calling for a simplified Treaty revision
procedure calculated to achieve the necessary redefining of
powers democratically and in accordance with the rule of law.

1.5.
Despite the progress and all the ongoing efforts of the
Commission, it is becoming ever clearer — particularly in view
of the new powers being granted to the Commission by the
heads of government and the planned eastward enlargement
of the European Union — that the subsidiarity and pro-
portionality principles alone will not be enough to guarantee
that European legislative activity focuses on what is essential.

1.8.
Improved delineation of EU responsibilities would not
just make existing political powers more transparent for
people, regions, Member States and the EU bodies themselves.
Clearly defined powers would also increase the chances of
moving to more majority voting and so improving the
efficiency of the EU overall.

In future the principles of subsidiarity and proportionality
must therefore be reinforced by structuring powers to take
account of the scope for action of, and cooperation between,
the various spheres of government, with provision for a
review, if necessary, depending on the quality of the results
obtained. The Treaty lays down the principle that each
institution should act within the powers conferred upon it

1.9.
The Committee feels that strengthening subsidiarity
and proportionality would also promote the right of the
Committee and of regions with legislative powers to appeal to
the Court of Justice. This right would help to enhance the
status of the COR, ensure full respect for its rights and make it
possible to appeal in cases where the subsidiarity principle is

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violated. It would help to protect the legislative powers of the
regions against illegal interference. Granting the Committee of
the Regions the status of an institution, under the terms of
Article 7 of the EC Treaty, would resolve this matter without
having to alter the article concerned.

thorough consideration and discussion of these two complex
issues, which are very different in nature, but of crucial
importance in bringing the European Union closer to ordinary
people.

EU democracy cannot function properly unless the
1.10.
Treaties and the decision-making procedures become more
transparent and intelligible to citizens. A rationalization and
simplification is called for. The COR therefore endorses
proposals to unify the Treaties in a text consisting of two
sections:

a) a ‘constitutional’ or basic section containing the preamble,
fundamental rights and
the objectives of
the provisions concerning the institutions and individual
conferred powers. This section can only be amended by an
IGC.

the Union,

The Committee also welcomes the efforts of

the
2.2.
European Commission in this subsidiarity and proportionality
report to observe the subsidiarity and proportionality prin-
ciples in the exercise of its legislative and regulatory powers by
helping to repeal many legislative instruments through a large
number of formal consolidation proposals. This has also ruled
out intervention in areas that are a matter for regional or local
authorities or that are clearly better dealt with by tiers of
government that are closer to grassroots level. Moreover, each
proposal made by the Commission should be evaluated in
terms of its financial consequences, which will be borne by the
Member States — and in particular the local authorities — in
those areas where they are competent.

b) a section dealing in particular with technical, procedural
and institutional matters, in so far as these can also be
dealt with under secondary law. This section can be
amended under the lighter Community procedure not
involving an IGC. In any case, the transfer of Member
States’ powers to the European Union requires the agree-
ment of Member States’ parliaments.

1.11.
In its opinion on the 1998 subsidiarity report, the
Committee already noted that subsidiarity is also a guiding
principle of the relationship between the European Union, the
Member States and local and regional authorities, and that the
definition contained in Article 5 of the EC Treaty should
therefore apply to relations between the Community, the
Member States and the regions and local authorities, without
prejudice to the fact that the relations between regional and
local authorities and the Member States are governed by
individual national constitutions.

The Committee would stress again that the Treaty
1.12.
provides for decisions to be taken at the level that is closest to
the general public, which is not always the level of central
government. The principle of subsidiarity should thus be
understood as the basis for responsiveness to the general
public and for efficiency.

2.3.
The Committee welcomes the fact that the Commission
is making a greater effort, in accordance with the Amsterdam
protocol, to choose the simplest possible form for its measures,
and to always keep in mind that measures should be
implemented and applied according to the same principle.

2.4.
In a Europe that is supposed to be transparent and
responsive to public concerns it is essential to frame Com-
munity legislation in such a way that it is understood by those
for whom it is intended. The Committee therefore endorses
the Commission’s efforts to make texts clearer, more coherent
and unambiguous, in order to ensure uniform application in
all the Member States. This requirement is all the more urgent
as the texts which are adopted finally often are the subject of
compromises which cannot always be transposed easily into
national laws.

2.5.
The Committee regards the interinstitutional agree-
ment adopted in December 1998 on quality of drafting of
Community legislation as a step in the right direction.

2. Committee of the Regions’ recommendations for the

Commission report

2.6.
The Committee feels that the Commission should
continue with its efforts to simplify legislative provisions as far
as possible. It should also help to ensure that its proposals are
not blocked during discussion by other institutions.

The Committee regrets that its suggestion in response
2.1.
to the Commission’s subsidiarity report ‘Better lawmaking
1998 — a shared responsibility’
the
principles of subsidiarity and proportionality and the question
of quality of texts should be dealt with in separate documents
has not yet been taken up. The Committee repeats that dealing
with these matters in a single document is not conducive to

that application of

2.7.
The Committee is interested to note from the Com-
mission’s report that its proposals on simplifying legislation
have not been implemented by the Council and Parliament to
the extent or at the pace proposed by the Commission. It
therefore calls on the Council and on Parliament to cooperate
with the Commission’s efforts to simplify legislative texts.

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2.8.
The Committee considers the SLIM initiative (simpler
legislation for the internal market) to be a good instrument for
It also endorses the assessment
promoting simplification.
programme developed by the Commission in cooperation
with the Member States.

2.9.
The Committee is pleased to see that the Commission
is continuing its efforts to update (consolidate) instruments for
information purposes, which are intended to meet the needs
of all users of Community law. Information on the Eur-Lex
and Celex sites, where in the past year some 500 consolidated
legal instruments have been made available, is a considerable
benefit. Moreover, although the recent overhaul of the Celex
site has increased the number of formats available, there are
serious shortcomings in terms of user-friendliness, especially

as regards printing the selected documents. Appendices in
table form are an example, as these are often essential to the
interpretation and implementation of legislation.

2.10.
The aim of making the European Union more
transparent and comprehensible, and thus closer to the general
public, requires first and foremost that people have access to
information on Community law. New technology provides
effective tools to supplement
information
brochures and handbooks. The Commission is called upon to
make more use of these possibilities. The Commission’s Europa
server provides an example of people’s growing interest in
Europe. However, there is a need for the various pages to be
made more user-friendly and more accessible, by enabling the
server to cope with simultaneous hits.

the traditional

Brussels, 13 April 2000.

The President

of the Committee of the Regions

Jos CHABERT