Communication from the Commission - European Governance: Better lawmaking.
Date: 2002-06-05
Institutions: European Commission
Subjects: EU law, EU policy, consultation procedure, evaluation method, sustainable development

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.6.2002
COM(2002) 275 final

COMMUNICATION FROM THE COMMISSION

European Governance:

Better lawmaking

.

..

Accountability, effectiveness, proportionality

In July 2001, the Commission presented its White Paper on European Governance. The basic
message was a simple one and is as topical now as it was then: we need to govern ourselves
better, together – European institutions and Member States. We can do this without changing
the Treaty, without necessarily waiting for
a new
intergovernmental conference. Better governance together means active cooperation between
the European Parliament, the Council, the Commission and the national governments so that
the people of Europe can see more clearly how they fit into major projects and into the EU's
day-to-day business.

successful outcome of

the

One thing we have to acknowledge is the richness of the Community method. Compared with
other systems of international relations, it produces rules which can be applied in any national
context and which have the backing of legal certainty. But this very success raises further
questions.

There are a lot of complex issues at stake now in enacting good European legislation which is
mindful of the principles of subsidiarity and proportionality. People nowadays take an interest
in the effectiveness of the rules handed down "from Brussels" and the way they are drawn up.
The advent of a democratic conscience is strengthening the need for accountability and
proportionality in the way powers vested in the European institutions are exercised. This need
is expressed more especially in transparency, clarity and the willingness to stand up to
scrutiny. What we have here, then, is a veritable ethical requirement.

The resolution adopted by the European Parliament in November 2001 in the wake of the
Kaufmann report strengthens this requirement still further. By clearly stressing the primacy of
political accountability behind legislative action, the resolution brings out the need for more
transparent, equitable and disputational consultation: it is the very quality of the legislation
which is under scrutiny.

Three communications for better lawmaking

Inspired by this resolution and by the initial reactions during the consultations on the White
Paper concerning the "better lawmaking" element, and bearing in mind the recommendations
by the high-level group chaired by Mr Mandelkern, the Commission has now decided that the
time has come to act in response to the strategy mapped out by the Lisbon European Council.
That is the point of the three communications set out below.

These three communications form a whole centred on the basic lawmaking framework of the
European Union, including the way EU law is transposed into national law. They are
designed to apply to all the EU's regulatory areas – not just the Community “pillar”, but also
the third “pillar” that relates to justice and home affairs, bearing in mind the institutional
framework and the decision-making arrangements proper to each "pillar". The Commission
believes that the communications could come into force from the beginning of 2003, keeping
in mind that some of the proposed provisions are a matter for an inter-institutional agreement.

"Simplifying and improving the regulatory environment" – an action plan

How can the various institutions and the Member States improve their lawmaking? This is the
question which the first communication addresses in the form of an action plan. It deals in
chronological sequence with the various stages of the legislative cycle. This makes it possible

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to analyse the respective responsibilities of the various European institutions and to clarify
what should be done under an interinstitutional agreement.

The Commission, first of all, is committed to be more transparent in the way it exercises its
right of initiative and take greater account of diversities. In particular, the Commission shows
how it sets out clearly the reasons why it takes a particular initiative, and how it sets out to
ensure that the substance of its legislative proposals are restricted to the bare essentials.
Parliament and the Council, which are responsible in the final analysis for the proportionality
of the legislative instruments and the simplicity of the legislation, are invited to firmly
commit themselves in the same direction: returning to the original concept of the directive as
provided for in the Treaty, laying down common criteria and providing for the involvement of
the legislator in co-regulation, qualified-majority voting, the way the codecision procedure is
conducted, and the use of impact assessments. Finally, the action plan suggests measures
under the direct responsibility of the Member States which could greatly improve the quality
of the European regulatory environment.

Promoting a culture of dialogue and participation

Who is really consulted as part of the Community legislative process? Are the smallest voices
really and always heard? What is the subject matter of consultation? And to what extent are
people's opinions actually taken into account? This
the second
communication, which gives practical expression to the emerging culture of dialogue and
participation.

the subject of

is

Based on broad experience of mandatory or informal consultation exercises, five minimum
consultation standards are set out, to be applied by the Commission's departments. The
purpose is to enable the legislator to be sure of the quality, and particularly the equity, of
consultations leading up to major political proposals. The move is motivated by three
concerns:
to systematise and rationalise the wide range of consultation practices and
procedures, and to guarantee the feasibility and effectiveness of the operation; to ensure the
transparency of consultation from the point of view of the bodies or persons consulted and
from the legislator's point of view; and to demonstrate accountability vis-à-vis the bodies or
players consulted, by making public, as far as possible, the results of the consultation and the
lessons that have been learned.

Systematising impact assessment by the Commission

How can we take into account the "impact" of future legislation – in other words, what would
be the benefit and the cost of implementing it? That is the subject of the third communication,
which explains the systematic approach to assessing the impact of initiatives, essentially
legislative ones, which the Commission now intends to apply.

the
Practical and adapted to each instrument, the approach is a measured one,
legislative process should not get blocked pending an excessively long or over-costly
evaluation. It takes the form of a general-purpose impact analysis tool which can be applied
to all initiatives undertaken under the Commission's programme of work.

in that

Impact assessment is in the same line of thinking as the European sustainable development
strategy. The intention is that it should play a major role throughout the process of improving
the quality of European legislation, providing a decision-making aid but not taking the place
of political judgement. For one thing,
it will guide and justify the choice of the right
instrument at the appropriate level of intensity of European action. For another, it will provide

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the legislator with more accurate and better structured information on the positive and
negative impacts, having regard to economic, social and environmental aspects. Thirdly, it
will constitute a means of selecting, during the work programming phase, those initiatives
which are really necessary.

Political refocusing and the quality of policy execution: two sides of the same coin

The "better lawmaking" action plan and the two accompanying communications are based on
the same premise: to place the three institutions – Parliament, Council and the Commission –
in a situation to produce better laws; their joint effort along with the Member States will result
in a basic legislative framework which is simpler, more effective and better understood.

the White Paper on European governance did not stop there in terms of
However,
"refocusing". It pointed out that the arrangements for policy execution and the concrete
conditions for applying them on the ground formed, together with the basic legislative
framework, an indissociable whole in the public's perception. The facts and the quantified
trends back up the importance of the executive functions: while the number of legislative
texts, directives and regulations adopted by Parliament and the Council remains at around 200
per year, the number of executive acts adopted by the Commission has now reached several
thousand and the trend is rising. Technological advances and the increase in the number of
Member States go a long way towards explaining this dynamism.

Against the background of this proliferation of executive functions, there is the question of
what are the executive's "core tasks", how the legislator monitors the way these tasks are
carried out, and how we can ensure full participation by the administrative bodies on the
ground, national or local, in the way European rules are finally applied.

The governance response to these questions is decentralisation and increased accountability
on the part of the beneficiaries. It applies in four areas for which detailed proposals will be
made in the autumn of 2002. At this present juncture, a number of broad lines can be set out
for discussion.

Clarifying executive responsibilities

In the first place, the important thing is to clarify in general terms the way in which executive
responsibilities are exercised, i.e. what currently comes under the "committee procedures"
banner. The Commission's proposed approach is to start with a clearer definition of each
institution's remit: as the body to whom the executive function is delegated, the Commission
must take full responsibility for the corresponding decisions, with the help of expertise from
national administrations in the form of committees of a purely advisory nature. For its part,
the legislator must supervise the work of the executive. In so doing, the two branches of the
legislative authority must be placed on an equal footing, at least for matters dealt with under
the co-decision procedure. In that respect, the Commission announced in the White Paper on
Governance its intention to launch a reflexion on the modification of Treaty Article 202 with
a view to the next Inter-governmental Conference. Nevertheless, the Commission believes
that adaptations might be achieved without waiting for a change of the Treaty and will
propose already by next autumn an amendment to the Council Decision laying down the
202.
arrangements

applying

Article

for

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A framework for the creation of European agencies

However, the Commission's executive responsibilities do not mean (indeed, the opposite
applies) that it must retain all the executive functions, including those which are sometimes of
a highly detailed nature, which the Commission is required at present to bear in principle. The
decentralisation of some of these tasks to European regulatory agencies, within limits which
have to be laid down precisely in advance, does not detract from the Commission's effective
responsibility. The White Paper on governance announced that "the Commission will define
in 2002 the criteria for the creation of new regulatory agencies and the framework within
which they should operate". In more specific terms, the Commission will be submitting to
Parliament and the Council the terms of an interinstitutional agreement setting out the
conditions for the creation of such agencies, based on the principles of a clear separation of
responsibilities.

Taking account of the regional, urban and local contexts

A first stage in the experimental implementation of tripartite contracts will be presented. The
plan is to conclude a limited number of pilot contracts between the Commission, certain
Member States and regional or local authorities with a view to achieving the Community's
sustainable development objectives, like sustainable coastal management or urban mobility, in
full respect of existing constitutional provisions in each Member State. These contracts will
be of a voluntary nature and will involve no binding legal commitments. The results of the
pilot experiment will issue in a second stage, which might lead to the amendment of certain
legislative texts with a view to simplifying the executive arrangements and taking more
account of the local contexts.

A new approach to vetting the application of the law

In the same spirit of decentralisation, the Commission will lay down the framework for a new
approach to the way it exercises its responsibility for checking on the application of
Community law. This approach will be based on the premise that the Commission's resources
are inevitably limited, and will be even more limited in a Community with something like 470
million people. More attention will have to be given to the at times unacceptable delays in
implementing national application measures.

The Community method: a basis for building the Union

Changing what is amenable to change, without necessarily awaiting a reform of the Treaties;
and in doing so, safeguarding the conditions for legal certainty; clarifying ways in which the
Treaties can be deepened, and thus facilitating reform of the Treaties: this is the basic element
which has emerged from the concept of European governance.

The first thing is that this approach can underpin the way the three institutions operate –
Parliament, the Council and the Commission – and improve the way they work together. The
Commission, with its internal reform supplemented by the White Paper on governance; the
European Parliament, with the Corbett report which affects all its rules of procedure; and the
Council of Ministers, with the proposals put forward by its Secretary General, have all
committed themselves to this approach. The point now is to pursue and deepen these reforms.

The real significance of this approach, though, lies in the remit of the European Convention
itself, which is to lay down the constitutional foundations of the European Union, in line with
the message which the Commission spelt out in its "project for the European Union".

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Viewed as a quiet revolution in terms of the way we act, European governance illustrates the
potential and flexibility of the Community method, the very basis of the European Union. As
the cornerstone of this method, the Commission's right of initiative is the indispensable
counterpart to majority voting in the Council, in as much as the Commission's right of
initiative guarantees vital minority interests when it comes to defining the general interest. In
tomorrow's world, this balanced view of the general interest will be even more important with
a view to ensuring its autonomy, and that is the very point of the action plan for better
lawmaking.

Similarly, the complementarity between the institutions, which is at the very heart of the
unique Community system, will mean having to consolidate this refocusing effort, as
prompted by the governance reforms, and for reasons of accountability, proportionality,
transparency and legal certainty. And finally, with the move towards more rationalised
consultations, the systematic and a priori consideration of the impacts the proposed legislation
will have, we are touching on the vital question of the intensity of Community action, lying at
the very heart of the balance between effectiveness and the preservation of diversities which
should, according to the Laeken declaration, help to clarify the way powers are exercised
between the EU and its Member States.

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