Report from the Commission - "Better lawmaking 2002" pursuant to Article 9 of the Protocol on the application of the principles of subsidiarity and proportionality (10th Report)
Date: 2002-12-11
Institutions: European Commission
Subjects: activity report, application of EU law, operation of the Institutions, principle of proportionality, principle of subsidiarity

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.12.2002
COM(2002) 715 final

REPORT FROM THE COMMISSION

“BETTER LAWMAKING 2002”

pursuant to Article 9 of the Protocol
on the application of the principles of subsidiarity and proportionality

(10th REPORT)

TABLE OF CONTENTS

1.

2.

2.1.

2.2.

2.3.

2.4.

3.

3.1.

3.2.

3.3.

3.4.

3.5.

4.

Introduction.............................................................................................................. 3

How the principles of subsidiarity and proportionality are applied............................ 4

The legal and institutional framework ...................................................................... 4

Application of the principles by the Commission in 2002 ......................................... 6

Application of the principles in the Community process in 2002............................. 11

Conclusions............................................................................................................ 15

Better quality, simplified legislation ....................................................................... 15

Legislative activity in 2002..................................................................................... 15

Better preparation of legislative proposals .............................................................. 16

Improving the quality of legislation adopted........................................................... 19

Accessibility........................................................................................................... 20

Drafting quality ...................................................................................................... 21

Conclusions............................................................................................................ 22

2

1.

INTRODUCTION

For the tenth consecutive year, the Commission is presenting to the European Council
and the European Parliament
the report on the application of the principles of
subsidiarity and proportionality, as defined in Article 5 of the EC Treaty.

The report originated at the request of the Edinburgh European Council of December
19921. That
request was subsequently incorporated into the interinstitutional
agreement on procedures for implementing the principle of subsidiarity of 19932, then
finally into the Protocol on the application of the principles of subsidiarity and
proportionality annexed to the Treaty of Amsterdam in 1997.

Every year since the first report in 1993, the Commission has presented a report to the
European Council and the European Parliament on the application of the principles of
subsidiarity and proportionality3. Observation of these principles has guided the
Commission in exercising its right of initiative throughout this period.

It has been a decade in which the principles of subsidiarity and proportionality have
also been at the heart of institutional debate, both at Community level and in the
Member States. Important work relating to these principles is still going on within the
Convention on the future of the Union.

The report on "Better lawmaking" has itself undergone some changes during this
period, with the incorporation from 1995 onwards of the presentation of achievements
made in the field of legislative quality, the Institutions realising that application of the
principles of subsidiarity and proportionality is in fact closely linked to the quality of
legislation itself. Since then, the Commission has been constantly making proposals in
this area, such as the White Paper on European Governance and the Action Plan to
simplify and improve the regulatory environment, adopted in July 2001 and June
20024.

As in the previous reports, the report "Better lawmaking 2002" first of all gives an
account of how the principles of subsidiarity and proportionality have been
applied by the Commission this year, as well as the measures it has taken to
improve the quality and accessibility of legislation (consultation, codification,
recasting, consolidation, simplification and drafting quality).

The tenth report, which presents a rough assessment of the period, also focuses on two
new factors of a more political nature.

1

2

3

4

Conclusions of the Edinburgh European Council of 11 and 12 December 1992, pages 3 and 4.
the Council and the
Interinstitutional agreement between the European Parliament,
Commission of 29 October 1993; Bull. 3/EC 10-1993, p. 129.
COM(1993) 545 final of 24 November 1993; COM(1994) 533 final of 25 November 1994;
COM(1995) 580 final of 20 November 1995; ESC(1996) 7 final of 27 November 1996;
COM(1997) 626 final of 26 November 1997; COM(1998) 715 final of 1 December 1998;
COM (1999) 562 final of 3 November 1999; COM(2000) 772 final of 30 November 2000;
COM(2001) 728 final of 7 December 2001.
COM(2001) 428 final of 25 July 2001; COM(2002) 278 final of 5 June 2002.

3

–

–

Firstly, in line with the commitment set out in the White Paper on
European Governance, the Commission has focused the report on
"the main objectives of European Union policies"5, and no longer on
a few fields of activity chosen at random.

In addition,
the Commission wishes to place application of the
principles of subsidiarity and proportionality in its original
interinstitutional context6. By adopting this approach, which is more
in keeping with the spirit of
the
Commission wishes to emphasise that the principles of subsidiarity and
proportionality remain dynamic concepts and that
their effective
application depends on the joint responsibility of the Parliament,
the Council and the Commission, and on effective operation and
dialogue within the institutional triangle.

the Treaty and the Protocol,

2.

HOW THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY ARE
APPLIED

2.1.

The legal and institutional framework

a)

Article 5 of the EC Treaty and the Protocol to the Treaty of Amsterdam

Article 5 of the EC Treaty, introduced by the Treaty of Maastricht, lays down three
conditions for the application of the principle of subsidiarity. This principle is
applied:

–

–

–

within the context of the powers and objectives conferred upon the
Community by the Treaty, but does not concern the Community's
exclusive powers;

in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States. This therefore involves establishing
the potential insufficiency of action by the Member States;

if Community action is preferable by reason of the scale or effects of
the proposed action. Community action must therefore bring an added
value in terms of effectiveness.

5

6

"The annual report on the implementation of the Amsterdam Protocol on Subsidiarity and
Proportionality will be oriented towards the main objectives of European Union policies. It
will investigate the extent to which the Union has applied the proportionality and subsidiarity
principles in pursuing its main goals", in the White Paper on European Governance, adopted
on 25 July 2001.
In the previous reports, the Commission concentrated mainly on examining how it had
implemented the principles of subsidiarity and proportionality, except in the report "Better
lawmaking 1998 – a shared responsibility" in which it highlighted the responsibility of the
Parliament, the Council and the Member States (COM(1998) 715).

4

In order to assist the Institutions when examining the last two conditions, the Protocol
annexed to the Treaty of Amsterdam lays down the following guidelines7:
Community action is justified where transnational issues are involved, where action
by a Member State alone or lack of Community action would conflict with the
requirements of the Treaty; or where action at Community level would produce clear
benefits by reason of its scale or effects.

The Protocol does not lay down rigid criteria, but also emphasises that: "The principle
of subsidiarity provides a guide as to how those powers are to be exercised at the
Community level. Subsidiarity is a dynamic concept and should be applied in the light
of the objectives set out in the Treaty"8.

With regard to the principle of proportionality, the Treaty and the Protocol give a
common definition: "Any action by the Community shall not go beyond what is
necessary to achieve the objectives of the Treaty" and "the Community shall legislate
only to the extent necessary"9. The Protocol also provides guidelines concerning the
choice of legislative instrument and the force of its contents: the form of Community
action must be as simple as satisfactory achievement of the objective permits; "other
things being equal, directives should be preferred to regulations and framework
directives to detailed measures"10; it is necessary to take into account the need for any
burden, whether financial or administrative, falling upon the Community, national
governments, local authorities, economic operators and citizens, "to be minimised and
proportionate to the objective to be achieved"11.

b)

The obligations of the Institutions

The principles of subsidiarity and proportionality having been defined for Community
action, the European Parliament, the Council and the Commission are under a legal
and political obligation to ensure that they are complied with: "In exercising the
the principle of
powers conferred on it, each institution shall ensure that
subsidiarity is complied with. It shall also ensure compliance with the principle of
proportionality (…)"12.

In addition, each Institution is responsible for ensuring compliance and monitoring in
the context of the normal Community process, in accordance with the rules laid
down in the Treaty13.

Also with regard to common obligations, the interinstitutional agreement on the
principle of subsidiarity and the Protocol also make provision for specific obligations
for each of the Institutions (cf. infra points 2.2 and 2.3).

the principles of subsidiarity and

7

8

9

10

11

12

13

the Protocol on the application of

Article 5 of
proportionality.
Article 3 of the Protocol.
Article 6 of the Protocol.
Idem.
Article 9 of the Protocol.
Article 1 of the Protocol.
Interinstitutional agreement between the European Parliament,
Commission of 29 October 1993; Bull. EC 10-1993, p. 129.

the Council and the

5

All these conditions, guidelines and obligations create a consistent legal framework
within which to apply the principles of subsidiarity and proportionality. However, as
stressed in the Protocol, the application of the principles by the Institutions must
remain a dynamic concept within this legal framework.

2.2.

Application of the principles by the Commission in 2002

When drawing up a proposal for a legislative act, the Commission, in addition to
taking into account the three conditions laid down in Article 5 of the EC Treaty, must
also respect the specific obligations provided for in the Protocol. It must consult
widely before proposing legislation; justify in the explanatory memorandum the
relevance of its proposals with regard to the principle of subsidiarity; explain the
financing of Community action; ensure that the financial burden on the Community,
Member States, local authorities, economic operators and citizens be minimised14.
The Commission must also ensure that the reasons for concluding that a Community
objective can be better achieved by the Community are "substantiated by qualitative
or, wherever possible, quantitative indicators"15. Finally, it must submit an annual
report to the European Council and the European Parliament on the application of
Article 5 of the EC Treaty. The report will also be sent to the European Economic and
Social Council and the Committee of the Regions16.

is impossible within the scope of this report alone to examine all
these conditions and obligations,

the
As it
the
Commission's proposals in the light of
Commission decided, in accordance with the commitment made in the White Paper on
European Governance, to focus this report on the European Union's main policy
objectives, in order to demonstrate the relevance of its choices and the quality of the
proposals made in these areas.

The Commission's Work Programme for 200217 highlights several policy priorities, of
which only security, sustainable development and development cooperation are
relevant for examining the legislative initiatives undertaken in 2002 in relation to the
application of the principles of subsidiarity and proportionality18.

a)

Immigration, criminality and security at external borders

The increase in illegal immigration, particularly in the form of networks of smugglers
trafficking in human beings, has been a source of concern to the Member States and
their citizens for several years. Faced with this situation, the Member States' response
seems neither appropriate nor sufficient, since only certain Member States have such
measures, and these differ from one Member State to the next.

The Commission has therefore been examining whether or not to make a proposal for
a Council Directive on a short-term residence permit, under the terms of Article

14

15

16

17

18

Article 9 of the Protocol.
Article 4 of the Protocol.
Article 9 of the Protocol.
COM(2001) 620 final adopted on 5 December 2001.
The same does not apply to the other priorities concerning the Mediterranean, European
Governance, the euro and enlargement.

6

63(1) of the EC Treaty, in order to step up the fight against persons committing such
offences and to protect their victims19.

A questionnaire sent to the Member States in 2000 and consultations held in the
European crime prevention forum of 30 October 2001 convinced the Commission that
it should propose measures in this field. As stated in the explanatory memorandum to
the Commission's final proposal20, the inadequacy of Member States' action against
this predominantly transnational problem, and the need to adopt common rules to
avoid competition for entry at the borders, justify the Commission's proposal with
regard to the principles of subsidiarity and proportionality. The proposal for a
directive therefore provides for the adoption of harmonised rules to introduce a
residence permit for victims of illegal immigration who cooperate with the competent
authorities.

The proposal also respects the principle of proportionality. It therefore sets out
common definitions and confines itself to defining the criteria for issuing the short-
term residence permit, laying down the terms of residence granted to the holders and
the grounds for non-renewal or withdrawal, leaving Member States free to enact more
favourable conditions. Consequently, the directive has been chosen as the appropriate
instrument for laying down these measures.

The control of external borders is a complementary, priority measure in a Union
preparing for enlargement. In this context, and given that the acquis communautaire
as regards the crossing of external borders still lacks proper operational coordination,
the Commission considers it necessary for the Community to be able to propose
working and cooperation mechanisms at European Union level.

The Commission wished to consult widely on the subject before making a proposal,
also in view of the fact that it is a new area of responsibility. This was the reason
behind the communication "Towards integrated management of the external
borders of the Member States of the European Union"21. This is a discussion paper
on whether or not to legislate at Community level. Action at European Union level
does in fact seem the most appropriate means of ensuring uniform management of
external borders which protect the Community, since Member States have removed
internal border controls. Depending on the outcome of
the
Commission will decide whether or not to make a legislative proposal, and if it
decides in favour, will determine the procedures involved.

this consultation,

b)

Safety of transport

Following the attacks which occurred on 11 September 2001 in the United States,
there was felt to be a need to further reinforce the safety of citizens, particularly in the
field of air transport. The Commission has identified a major risk in this area

19

20

21

The Commission made several other proposals in this field in 2002: proposal for a Council
directive on the conditions of entry and residence of third-country nationals for the purposes
of studies, vocational training or voluntary service (COM(2002) 548) adopted on 7 October
2002; proposal for a Council framework decision on attacks against information systems
COM(2002) 173 final adopted on 19 April 2002.
COM(2002) 71 final adopted on 11 February 2002.
COM(2002) 233 final adopted on 7 May 2002.

7

associated with deficiencies in Member States' procedures with regard to carriers from
third countries. Not all the Member States actually subject them to the same checks,
creating a risk to the safety of passengers and a distortion of competition, with certain
carriers being able to decide to use certain airports rather than others because of less
stringent regulations. After receiving the opinion of the High Level Group of aviation
safety experts,
the Commission proposed a European Parliament and
Council Directive on the safety of third countries' aircraft using Community
airports22 in order that on the ground inspections, in particular, be carried out by
some Member States on non-Community aircraft be extended to the whole of the
Community.

therefore,

In order to achieve the proposal's objective most effectively, the Commission had to
define the appropriate legislative instrument in the light of the recommendations made
in the Protocol23. The Commission proposal sets out general objectives and
procedures to guarantee harmonisation, but leaves the responsibility for transposing
monitoring principles and structures, based on detailed common standards, up to the
Member States. The choice of framework-directive was therefore ruled out in favour of
a directive24 and in the explanatory memorandum, the Commission explains why it is
impossible to use a framework-directive.

c)

Sustainable development and development cooperation

the polluter should pay,

liability25 applies the principle that

Sustainable development is a concept which cuts across several areas, including the
environment. The proposal for a European Parliament and Council Directive on
in
environmental
accordance with Article 174(2) of the EC Treaty. This proposal establishes a
framework for the prevention and remedying of environmental damage. It was felt
necessary to take action at Community level because of the existence of contaminated
sites, water pollution and damage to biodiversity, and because not all the Member
States have set up a liability system for environmental damage. The aim is to ensure
that in the future those who contaminate clean up the damage or bear the costs.
Failure to apply the polluter pays principle may perpetuate the reprehensible patterns
of behaviour that resulted in the present stock of contaminated sites. Furthermore, in
the absence of a common legislative framework, economic operators could exploit the
differences between the Member States to escape liability. The legislative proposal
serves this purpose but it is proportionate to requirements because it establishes a
framework of measures aimed at remedying substantial damage affecting biodiversity
as a minimum common basis which Member States may use as a reference in order to
implement the proposed regime effectively.

is also included in the Commission's
The concept of sustainable development
legislative initiatives in the field of transport and energy, in particular in the "oil and

22

23

24

25

COM(2002) 8 final, adopted on 14 January 2002, page 4.
Article 6 of the Protocol.
COM(2002) 8 final, page 5.
Proposal for a Directive of the European Parliament and of the Council on environmental
liability with regard to the prevention and remedying of environmental damage;
COM(2002) 17 final adopted on 23 January 2002.

8

inadequate harmonisation and coordination of national

gas stocks" package26, the main aim of which is to safeguard the security of energy
supply. The Commission decided to make legislative proposals in this field for several
reasons:
legislation at
Community level may lead to distortions on the internal market for petroleum
products; in addition, it is necessary to accompany the opening up of the internal
market for energy with measures which will guarantee the security of supplies and,
finally,
to define a new framework for energy programmes associated with a
European strategy for sustainable development.

Community action was felt to be necessary, given that the issues raised clearly have
transnational aspects and action taken by the Member States seems insufficient on the
basis of the present lack of coordination. Within the "oil and gas stocks package", the
two proposals for a Directive concerning measures to safeguard security of energy
supply meet this requirement and define a new Community framework. It will be
necessary among other things to monitor trends on international oil and gas markets
and assess their impact on the security and safety of supplies, and to monitor the level
of security stocks. This framework of Community rules, however, makes the Member
States responsible for establishing certain implementing rules. The choice of directive
as the legislative instrument is thus flexible and effective because it lays down a
minimum of rules to be applied by the Member States.

The Commission also relied on its policy priority in the field of sustainable
to back up its proposal for a mid-term review of the Common
development
Agricultural Policy27. It is interesting to note that within this policy the Commission
has taken into account
innovative aspects which are in the domain of shared
responsibilities (mainly environment, rural development). The Commission relied for
certain aspects of the text on quantitative elements and financial and budgetary impact
assessments of its proposals, as required by the Protocol annexed to the Treaty of
Amsterdam, and annexed these to the proposal28.

Another example, the proposal for a Directive of the European Parliament and of the
Council on temporary workers29, aims, among other things, to provide a framework
for this type of employment which is increasing sharply within the Union and has

26

27

28

29

Communication from the Commission to the European Parliament and the Council: The
internal market in energy: Co-ordinated measures on the security of energy supply; proposal
for a Directive of the European Parliament and on the Council concerning the alignment of
measures with regard to security of supply for petroleum products; proposal for a Directive of
the European Parliament and the Council concerning measures to safeguard security of natural
gas supply; proposal for a Council Directive repealing Council Directives 68/414/EEC and
98/93/EC imposing an obligation on Member States of the EEC to maintain minimum stocks
of crude oil and/or petroleum products, and also Council Directive 73/238/EEC on measures
to mitigate the effects of difficulties in the supply of crude oil and petroleum products;
proposal for a Council Decision repealing Council Decision 68/416/EEC on the conclusion
and implementation of individual agreements between governments relating to the obligation
of Member States to maintain minimum stocks of crude oil and/or petroleum products and
Council Decision 77/706/EEC on the setting of a Community target for a reduction in the
consumption of primary sources of energy in the event of difficulties in the supply of crude oil
and petroleum products; COM(2002) 488 final adopted on 11 September 2002.
COM(2002) 394 final adopted on 10 July 2002.
The evaluations concerning this proposal are available via:
http://europa.eu.int/comm/agriculture/eval/index_en.htm.
COM(2002) 149 final adopted on 20 March 2002, page 26.

9

temporary employment

agencies or user
truly transnational aspects. Some
undertakings operating in several countries make use of temporary workers. Not only
do national legislations differ from one country to another, but only nine Member
States have measures in this field. This situation is therefore likely to penalise
temporary workers and to restrict the development of this practice, which is, however,
necessary to maintain a dynamic European economy.

The proposal for a Directive thus lays down a common framework aiming at
improving the quality of work of temporary workers, in particular with regard to the
principle of non-discrimination between temporary workers and comparable workers
of user undertakings. When preparing the legislation, the Commission initially asked
the social partners to negotiate this agreement (between June 2000 and May 2001),
pursuant
to Articles 138 and 139 from the EC Treaty. As this negotiation was
unsuccessful, the Commission put forward a proposal for a Directive incorporating
the items on which the partners had reached agreement. The Commission also carried
out a detailed qualitative assessment of the impact30 of this proposal on enterprises,
i.e. the implications of the Directive on employment, investment and the competitive
position of business. That assessment is annexed to the proposal for a Directive.

The proposal also complies with the principle of proportionality, since it sets out a
flexible framework of legislation, giving the Member States the option of waiving the
principle of non-discrimination whenever temporary workers have a permanent
contract.

Lastly,
in the field of public health and research in the area of sustainable
development and development cooperation, the Commission for the first time applied
Article 169 of the EC Treaty. The Commission adopted a proposal for a Decision of
the European Parliament and of the Council to support a long-term partnership
between Europe and the developing countries to combat HIV/AIDS, malaria and
tuberculosis31. The aim of this initiative, which is original with regard to the
principles of subsidiarity and proportionality, is to enable the Community to act
alongside and complementary to the Member States in research programmes which
some of them are implementing. The Commission therefore considered that it was not
necessary for the Community to develop its own measures to replace Member States'
actions, but that it would be more effective and more in keeping with Article 5 of the
EC Treaty if it were to support their actions.

d)

Areas outside the political priorities

The Commission has adopted a legislative proposal to guarantee the fundamental
freedoms of the internal market. Thus, although the Member States are responsible for
the national rules governing professional qualifications (in accordance with Article
47(2) of the EC Treaty the Community plays only a coordinating role),
the
Commission considers that they must be harmonised so that they no longer obstruct
the freedom of movement for workers, freedom of establishment and the freedom to
provide services32. The proposal for a Directive of the European Parliament and of the

30

31

32

Article 9 of the Protocol.
COM(2002) 474 final, adopted on 28 August 2002.
Articles 39, 43 and 49 of the EC Treaty.

10

Council on the recognition of professional qualifications33 seeks to supplement and
simplify existing legislation, enabling Community nationals to have their professional
qualifications recognised in the other Member States for the purpose of exercising a
regulated profession. This involves, amongst other things, better management of the
rules and ensuring that the citizen is better informed, consolidating the sectoral
legislation already adopted and making application of the principles of recognition of
professional qualifications more reliable and flexible.

Taking another example, for its proposal for a recommendation on the application of
health and safety legislation to self-employed workers34, the Commission had to
take Article 308 of the EC Treaty as the basis for this proposal, since Article 137
relates only to employees. The choice of this legal basis involves justifying to an even
greater extent the need for action at Community level in an area not specifically
covered by the Treaty. This particular situation led the Commission's services to pay
particular attention to the Explanatory Memorandum throughout the preparation of
this initiative (cf. also the discussion within the Council – point 2.3).

2.3.

Application of the principles in the Community process in 2002

The Council and the European Parliament are also equally bound by the
principles of subsidiarity and proportionality in their role as co-legislators. Given
the delays involved in the Community legislative process, most of the legislative
proposals discussed by the European Parliament and the Council during 2002 date
back to previous years, except for the proposal on temporary workers.

Such an examination is particularly important because, in addition to having to take
into account Article 5 of the EC Treaty, the Council and Parliament have specific
obligations laid down in the Protocol and the interinstitutional agreement: "the
European Parliament and the Council shall, as an integral part of
the overall
examination of Commission proposals, consider their consistency with Article 5 of the
Treaty. This concerns the original Commission proposal as well as amendments
which the European Parliament and the Council envisage making to the proposal"35
and "any amendments to the Commission's text, whether made by the European
Parliament or the Council, which modify the scope for Community action, must be
accompanied by justification with regard to the principle of subsidiarity and Article
5"36.

This is the first time that the Commission has examined application of the principles
of subsidiarity and proportionality by the Parliament and the Council in this report. In
this first year, the report will concentrate on the most representative cases of the year
2002, in that they demonstrate very clearly that application of the principles of
subsidiarity and proportionality is part of an ongoing appraisal carried on
throughout the legislative process, in the context of the dialogue within and between
the three Institutions. In this respect, the report identifies several important stages:
examination and amendment of the legislative proposal by the Council, then by the

33

34

35

36

COM(2002) 119 final, adopted on 7 March 2002.
COM(2002) 166 final, adopted on 3 April 2002.
Article 11 of the Protocol.
Interinstitutional Agreement
the Commission of 29 October 1993; Bull. EC 10-1993, p. 129.

between

the European Parliament,

the Council

and

11

European Parliament, examination of the European Parliament's amendments by the
Commission, then, finally, under the codecision procedure, the possible conciliation
procedure stage.

a)

Examination and application of the principles by the Council

As the representative of the Member States and guarantor of their powers, the Council
the principles of subsidiarity and
takes particular care to ensure respect of
proportionality in the Commission's legislative proposals. The discussions within the
Council are evidence of this. Now and then they illustrate the diversity of appraisal
of these principles between the national delegations and between the delegations
these
and the Commission. Far from hampering the decision-making process,
discussions on the contrary more often than not help to establish a satisfactory balance
with regard to these principles, respecting the prerogatives of each of the institutions.

Thus, the proposal for a Directive of the European Parliament and of the Council
relating to the compulsory use of safety belts37 was discussed several times within
the Council during the first half of 2002. During the discussions, some said that the
Directive was too prescriptive and did not respect the principle of subsidiarity and that
legislation on the subject should remain within the competence of the Member States,
and that the Community should restrict itself to adopting framework legislation laying
down general principles. This position on road safety, which was reaffirmed on
several occasions, was always challenged by the Commission. The Council finally
accepted the Commission's approach, recognising, as the Commission claimed, that
road safety had an indisputable transnational impact, given the very high mobility in
this sector, and that, furthermore, in order to guarantee a uniform level of protection,
than action by the Member States. This
Community action was more relevant
important, legitimate discussion within the Council did not prevent a unanimous
political agreement from being reached on this subject38 with a view to formal
adoption of the directive.

Another example under discussion: last April the Commission adopted a proposal for
a recommendation on the application of health and safety legislation to self-
employed workers39 on the basis of Article 308 of the Treaty, (cf. supra point 2.2).
The Council challenged the use of Article 308,
launching a discussion on the
application of the principle of subsidiarity. Two conditions are in fact necessary for
the use of this Article. Firstly, since the case involves a power which is not explicitly
incorporated into the Treaty, the decision can be taken only if there is a need for
Community action in this area; and, secondly, it is up to the Council finally to
determine the need for such action. As several delegations have drawn attention to a
problem of political judgment which leads them to consider that this Community
initiative is not justified, the dossier is still being discussed by the Council.

Finally, the Commission and the Council were confronted with an important political
debate on an ethical problem which is at the centre of subsidiarity and proportionality

37

38

39

COM(2000) 815 final – Proposal for a directive amending Council Directive 91/671/EEC on
the approximation of the laws of the Member States relating to compulsory use of safety belts
in vehicles of less than 3.5 tonnes.
Conclusions of the Transport/Telecommunications Council of 17 June 2002.
COM(2002) 166 final, adopted on 3 April 2002.

12

the Competitiveness Council adopted the specific
issues. On 30 September
programmes of the 6th Framework Programme for Research and Development. In
order to facilitate its adoption, the Commission presented points of compromise with
the Council Presidency covering the sensitive issues of the use of human embryos
and stem cells. These state in particular that the ethical acceptability of certain fields
of research falls within the context of diversity between Member States and remains
governed by national laws under the principle of subsidiarity40.

Examination and application of

b)
Parliament

the principles by the European

While the European Parliament also closely examines whether or not the principles of
subsidiarity and proportionality are respected in the Commission's proposals,
its
approach differs from that of the Council and is geared more towards preserving the
Community's powers. Furthermore, once it has adopted its amendments,
the
Commission must give an opinion on them. Here too, interinstitutional dialogue
makes it possible to find a balanced solution in most cases, which respects the
prerogatives of each of the institutions.

During these discussions, the Commission pays particular attention to amendments
modifying the scope or choice of instrument which might therefore affect the sound
application of the principles of subsidiarity and proportionality. Thus, on 5 February
2002, when examining under the consultation procedure the proposal for a Council
Directive relating to the conditions in which third-country nationals shall have the
freedom to travel in the territory of the Member States for periods not exceeding
three months41, the European Parliament adopted a provision aimed at changing the
proposal for a Directive into a proposal for a Regulation42. Parliament considered
that, for reasons relating to the principle of subsidiarity, this legislation must be
applied effectively throughout the Community in a uniform manner, and that any
to Member States would risk distorting its proper
specific provisions
implementation. The Commission accepted the relevance of this argument in plenary
session, and undertook to defend it before the Council, without, however, amending
its proposal at this stage. The Council will resume discussion of this matter shortly.

left

Another important example concerns the protection of pedestrians. The Commission
had obtained clear commitments from European automobile manufacturers that they
would modify vehicle bodywork and brake systems in order to make collisions with
pedestrians less dangerous. Judging these commitments sufficient to ensure better
protection for pedestrians, it felt that a legislative proposal was unnecessary, and
adopted a communication to the Council and the European Parliament incorporating
this approach in July 200143. On 13 June 2002,
the European Parliament
considered, firstly, that action at Community level was in fact necessary in this
field and, secondly, that with regard to the protection of citizens, the Community
could not abandon its legislative powers to third parties. Parliament concluded by

40

41

42

43

Conclusions of the Competitiveness Council of 30 September 2002.
COM(2001) 388 final, adopted on 10 July 2001.
Amendment No 1.
COM(2001) 389 final, adopted on 11 July 2001.

13

considering that a legislative framework was necessary44. The Commission,
recognising the merits of this argument, should shortly adopt a legislative proposal.

Under the Community legislative process, the Commission must express its opinion
few
on the amendments adopted by the European Parliament. On the whole,
amendments lead to further discussion of
the principles of subsidiarity and
proportionality, compared with the large number of amendments adopted by
Parliament. The Commission examines very carefully those which might result in new
powers for the Community or which seek to limit Member States' powers in
implementing the legal instruments, but also those aimed at making the proposal very
detailed, sometimes excessively so, and therefore not respecting the principle of
proportionality.

Examples of this for the year 2002 are certain amendments45 adopted during the April
plenary session on the proposal for a Directive on the protection of workers exposed
to asbestos, which were rejected by the Commission, by the Committee on
Employment and Social Affairs and by the European Parliament itself in a plenary
session. The fact was that these amendments sought to restrict Member States' choice
regarding implementation of the objectives of the Directive.

c)

The dialogue between the three Institutions

There were difficulties this year in applying the proposal for a Regulation on the
hygiene of foodstuffs46 to the local sale of products and in particular to markets. The
European Parliament wishes to exclude totally from the scope of the Regulation the
direct local sale of small quantities, while the Council wants the Regulation to state
that Member States would have the possibility of adopting alternative rules for this
sector. The Commission, however, considers that it is up to the Member States
specifically to legislate on this subject, since such sales are not transnational in nature
or in their impact. The discussion is set to continue.

the second reading, Parliament and the Council

Another important example in 2002 is the proposal for a Directive on public access
to environmental information, which has been under discussion for two years47.
initiated a conciliation
After
procedure in September in order to reach agreement, in particular on the scope of the
Directive and its detail,
thus bringing into play diverging interpretations of the
principles of subsidiarity and proportionality. The aim of the Commission and the
the Aarhus Convention48, while the
Council was to seek only to implement
Parliament, believing that Comunity action should extend beyond the Convention,
wanted to extend the areas covered by the Directive. The Commission and the
Council opposed some of the European Parliament's amendments, considering that
they place excessively heavy obligations on national administrations. Discussions

44

45

46

47

48

Resolution of the European Parliament, adopted on 13 June 2002.
Amendments Nos 30, 33, 35, 36 and 37.
COM(2000) 438 final adopted on 14 July 2000.
COM(2000) 402 final adopted on 29 June 2000.
COM(1998) 344 final: proposal for a Council Decision on the signature by the European
Community of the UN/ECE Convention on access to information, public participation and
access to justice in environmental matters (signed on 17 June 1998).

14

within the conciliation committee made it possible to reach agreement on these
various points, while respecting the principles of subsidiarity and proportionality.

2.4.

Conclusions

The examples quoted in the report for the year 2002 demonstrate that evaluation and
application of the principles of subsidiarity and proportionality remain dynamic
concepts in a clear legislative framework. In this respect, dialogue between the
Institutions within the legislative process is, as can be clearly seen, indispensable in
order to find a satisfactory balance from both a legal and political point of view, as
well as from the point of view of the Member States and the Community. The
Commission wishes to see such vigilance towards these principles maintained
constantly throughout
including when the European
the legislative process,
Parliament and the Council reach an agreement during the conciliation stage.

3.

BETTER QUALITY, SIMPLIFIED LEGISLATION

Since 1995, the Commission has included in the annual report a section on legislation
itself, mainly in terms of quality and statistical information. This has made it possible
for data to be collected over several years and for this first assessment of the period to
be made this year.

3.1.

Legislative activity in 2002

Number of Commission proposals 1990-2002
*situation at 27/11/2002 source: PreLex database
(From 1990/2001Eur-Lexdatabase)

1990

1992

1994

1996

1998

2000

2002

787

704
702

667

596

622

528

549

569

405

493
490

316

300
Number of proposals for regulations, directives, decisions and recomm endations

400

100

500

600

200

0

700

800

Calculation of the number of legislative proposals per year began in 1990. In 200249,
examination of the Commission's legislative activity shows that the annual number of
proposals has continued to decrease, reaching a new lower level. 316 legislative
proposals have thus been drawn up this year, at the date of compilation of the report,
as opposed to 787 in 1990. This trend, which has been observed since the completion
of the internal market, must not, however, create a misleading impression of

49

The figures for 2002 stop at 27 November.

15

Community action or of the dynamic role played by the Commission in the
Community process. The trend shows that the Community has reached a stage of
maturity with regard to the objectives of the Treaty and the existing acquis.

3.2.

Better preparation of legislative proposals

The virtually exclusive exercise of the right of initiative gives the Commission the
special responsibility of ensuring the quality of its legislative proposals. It has several
instruments with which to do this (consultations, forums, impact analyses, explanatory
memoranda, etc.), some of which are included in the Protocol on the application of the
principles of subsidiarity and proportionality. The Commission has been applying
these quality practices for several years and has recently taken measures to improve
them through the White Paper on European Governance and the Action Plan to
simplify and improve the regulatory environment.

a)

Consultations

This year also the Commission did a great deal of consulting, listening and examining
of opinions and experts' reports from civil society (in particular operators, associations
and NGOs). This is a vital instrument with which to define the need for an action, the
general and specific expectations and the types of action to be taken.

In 200250, the Commission produced 2 Green Papers51 and 95 communications of a
consultative nature. It also published 76 reports. It is evident that the need for
consultation is particularly great in areas in which the Community has new or shared
responsibilities (including justice and internal affairs, energy or consumer protection);
but also in sectoral policies in which the Community has a great deal of responsibility,
such as transport and the internal market.

The social dialogue also plays a major role in upstream monitoring of compliance
with the principles of subsidiarity and proportionality as a source of law (Article 138
and, in particular, Article 139 of the EC Treaty). In this context, the obligation
stemming from the EC Treaty (Article 138) for the Commission to consult the social
partners before submitting proposals in the area of social policy on one hand makes it
possible to legislate only where other measures have proved ineffective, and on the
other to properly tailor the proposals submitted to take due account of the opinions
expressed by the parties most closely concerned. Moreover, Article 139 also makes it
possible, by an act of the Council, to implement European level collective agreements.

Reviewing the situation over the past ten years, it is possible to calculate the large
volume of consultations undertaken by the Commission: 38 Green Papers, 19 White
Papers and over 1200 communications in all sectors combined. It also published
nearly 1500 reports on Community actions. Once again it was the sectors in which
there has been constant legislative activity – transport, energy and the internal market
– which required the largest number of consultations over this period.

50

51

Idem
COM(2002) 196 final – Green Paper on alternative dispute resolution in civil and commercial
law and COM(2002) 175 final – Green Paper on a Community return policy on illegal
residents. Two other Green Papers should be adopted before the end of the year.

16

Finally, when a new team of Commissioners enters into office, bringing with it new
initiatives, there is typically an increase in the number of consultations, and in
particular Green Papers (9 in 1995 and 11 in 2000-2001).

Consultation documents and reports 1993-2002

Situationat18/10/2002-source:Eur-lexdatabase

164

131 135

155

154

166

175

123

122

133

132

120

93

148

133

103

139

157

76

95

3

1

2

1

9

3

1

2

6

2

2

1

1993 1994

1995 1996 1997

2

2

4

3

7

4

2

1

1998

1999 2000

2001

2002

Reports

Communications

GreenPapers

White Papers

180

160

140

120

100
80
60
40
20
0

In accordance with the commitments made in the White Paper on European
Governance, the Commission has decided to improve recourse to consultation by
defining minimum standards, in association with civil society. In June 2002 it thus
adopted a consultative document proposing standards and should make public the
final standards before the end of the year in a new communication.52 The main
elements will be the definition of a minimum consultation period and the
establishment of a single access point.

Over the years there has also been an increase in the methods of consultation used;
these are now often less formal than Green Papers or communications and more
flexible and user-friendly. It is in this respect interesting to note the increasingly
frequent organisation of forums or specific conferences or consultations on the
Internet. Examples for 2002 are the European Energy and Transport Forum, created
this year, and the introduction of Interactive Policy Making (IPM)53, which has
already made possible 12 on-line consultations, including one on data protection
which received 10 000 replies in eleven weeks.

52

53

COM(2002) 276 final adopted on 5 June 2002.
Available via http://www.ipmmarkt.homestead.com

17

b)

Impact assessments

Pursuant to the Protocol on the application of the principles of subsidiarity and
proportionality, the Commission carries out impact assessments of these measures to
justify its proposals on the basis of qualitative and quantitative indicators, and also
indicates the cost of its proposals to the Community budget.

As stated above (cf. part 2.2.), the Commission has carried out several important
assessments this year, in particular for the proposal for a mid-term review of the
Common Agricultural Policy.
instrument alongside formal
consultations in order to better assess the need and relevance of action at Community
It has thus launched
level,
assessments concerning consumer credit and combating piracy and counterfeiting
with a view to making possible legislative proposals.

in accordance with the principles of subsidiarity.

It also uses

this

is necessary to
Being convinced that further development of such an instrument
improve the quality of legislation, the Commission has defined a single method of
impact assessment, assessing not only the economic impact, but also the social and
environmental impact of its main policy and legislative proposals54. The Commission
is of the opinion that this instrument, which will be introduced gradually by the
Commission's services from 2003, will provide it, the European Parliament and the
Council, with a solid, objective basis for legislative discussions.

c)

Other initiatives taken in 2002

With regard to proposals made this year, the Commission is also placing more
importance on the explanatory memorandum of these proposals in order to take into
account their preparation more effectively (consultations and assessments carried out)
and to improve justification of conformity with the principles of subsidiarity and
proportionality. As laid down in the Action Plan to simplify and improve the
the Commission will draw up internally a standard
regulatory environment,
explanatory memorandum as a guide for its services.

In the same vein, the Commission is setting up an internal network on "Better
lawmaking", responsible for ensuring the quality of legislative proposals and
implementing new initiatives in this area, in coordination with the existing network
which deals with strategic planning and activity-based management. The "Better
lawmaking" network will also have to identify at the earliest stage possible questions
which might be raised with regard to the principles of subsidiarity and proportionality
during preparation of the proposals.

The Commission has made several other proposals to the European Parliament and
the Council
in order to improve the quality of legislation. These include the
establishment of an interinstitutional network to deal specifically with such issues, but
also the more frequent use of more flexible legislative or non-legislative instruments,
such as framework directives (in accordance with the Protocol), co-regulation and
self-regulation. The Seville European Council, meeting last June, endorsed the
approach proposed by the Commission and called upon the three Institutions to

54

COM(2002) 277 final adopted on 5 June 2002.

18

conclude an interinstitutional agreement on the subject before the end of 2002.
Discussions are currently in progress.

Mention can also be made of the introduction in 2002 of practices decided in the
context of the White Paper on internal administrative reform, particularly action 94
concerning better 'fraud-proofing' of contract legislation and management. This action
has given rise to the adoption of a Commission communication55 which provides inter
alia for specific consultation of the European anti-fraud office (OLAF), prior to inter-
service consultation, on legislative projects concerning sensitive sectors. This
procedure will
take effect as from the preparatory cycle for the Commission's
legislative work programme for 2003, which was adopted on 30 October 200256

3.3.

Improving the quality of legislation adopted

The year 2002 is particularly important from this point of view because it marks
simultaneously the impending completion of the acquis consolidation exercise, but
also the start of
the
interinstitutional agreement on recasting, and finally the preparation of the future
acquis simplification programme.

the codification programme and of

implementation of

a)

Consolidation

The Community's Official Publications Office, in association with the Commission's
Legal Service, is carrying out this consolidation effort57 which provides material for
codification and recasting. Consolidation of all existing legislation must be completed
in July 2003. There was therefore naturally a greater volume of this work in the year
2002, giving an overall result since 1999 of some 1600 families of consolidated acts,
(315 in 1999, 831 in 2000 and 1097 in 2001).

b)

Codification

Codification58 has already proved how useful it is because from 1994 onwards, with
the adoption of an interinstitutional agreement on official codification59, 33 new legal
acts have been adopted, thus making it possible to repeal 347 pre-existing acts.

In order to extend this practice the Commission adopted a specific codification
programme60 in November 2001. The Commission's services have now identified the
acts which should be codified. For example, the Directives concerning certain aspects
of the organisation of working time (which will be replaced by two acts).

55

56

57

58

59

60

SEC(2001) 2029 final.
COM(2002) 590 final.
Consolidation means grouping together in a single informal text the current provisions of a
given regulatory instrument which are spread among the first legal act and subsequent
amending acts.
Codification means the adoption of a new legal instrument which brings together, in a single
text, but without changing the substance, a previous instrument and its successive
amendments, with the new instrument replacing the old one and repealing it.
Interinstitutional agreement of 20 December 1994 on an accelerated working method for
official codification of legislative texts; OJEC C 102, 04.04.1996, pp. 2-3.
COM(2001) 645 final adopted on 21 November 2001.

19

The Council and the European Parliament have also speeded up their work and have
adopted 5 proposals for codification61, which will replace 59 pre-existing acts.

c)

Recasting

The European Parliament, the Council and the Commission, all aware of the benefits
of recasting62, concluded an interinstitutional agreement in November 200163,
which entered into force in March 2002. On the basis of this agreement, the
Commission's services are currently preparing several proposals for recasting. At this
stage the Commission has been able to adopt only one proposal on the coordination of
the provisions relating to access to the activity of insurance other than life insurance
(which will replace 7 pre-existing acts)64.

The European Parliament and the Council also adopted a pending proposal for
recasting on undesirable substances in animal feed65.

d)

Simplification

The Commission continued its sectoral efforts in this field, in particular through
implementation of the SLIM66 initiative, which has just come to the end of its fifth
phase. Since the initiative was launched in 1996, 17 legislative sectors have been
concerned by simplification, specifically targeting public procurement, life insurance,
vocational qualifications and company law.

The Commission is also taking great care to define the acquis communautaire
simplification programme provided for in the Action Plan to simplify and improve the
acquis communautaire. The three Institutions must reach an agreement on the
working procedures for this programme. At this stage, the Commission is identifying
areas of the acquis in which simplification would be desirable. It will publish a
communication on this subject at the beginning of next year.

3.4.

Accessibility

Better lawmaking also means allowing better access to Community legislation. This
year, as well as improving its existing tools, e.g. the PreLex67 database on inter-
institutional procedures or the regular sample and other surveys conducted by the
Commission among the people of Europe,
the Commission has developed new
initiatives using several types of media in various fields. Sector-specific examples are

61

62

63

64

65

66

67

Directives 2002/53/EC; 2002/54/EC; 2002/55/EC; 2002/56/EC and 2002/57/EC adopted on
13 June; OJEC L 193, 20.7.02.
Recasting makes it possible to adopt a single legislative instrument which makes the required
substantive changes, codifies them with provisions remaining unchanged from the previous
act, and repeals the previous act.
Interinstitutional agreement on a more structured use of the recasting technique for legal acts;
OJEC C 077, 28.03.02, pp. 1-3.
Directive 73/239/EC.
Directive 2002/32/EC; OJEC L, 30.05.02. p. 10.
‘’Simpler Legislation for the Internal Market’’.
Available via: http://europa.eu.int/prelex/apcnet.cfm

20

the production of brochures on competition policy68, the publication of the consumer
policy strategy for 2002-200669 and the opening of the European culture portal70,
the first thematic portal of this kind, giving direct access to Community legislation,
but also to measures and financing in this area, which is part of the Commission's
strategy to develop several thematic portals.

With regard to the placing of information online, without going into excessive detail,
it is worth pointing out that the Commission decided to place online the minutes of its
meetings as from 1 January. That date also marked the beginning of free online access
to documents available on Eur-Lex. Finally, last September the Commission placed
online all the acquis communautaire in the field of justice and internal affairs, which
is a new Community responsibility directly concerning citizens71. The Commission
had already done this in other fields.

Likewise, the Commission has decided to publish in the Official Journal decisions on
Single Programming Documents and Community Support Frameworks taken by the
Commission, since they concern the lives of citizens at local level.

The Commission has introduced a new planning system in order to reliably plan the
initiatives which it intends to adopt during the next three months. The three-month
programme is updated each month and sent to each of the Union's Institutions to
enable them to organise their own activities. For the sake of transparency it is now
accessible to the public via the server Europa.

Finally, last July the Commission set up the SOLVIT network to solve the problems
of citizens and businesses which run into difficulties when Community law is
incorrectly applied. This groups together specific centres in each Member State.

3.5.

Drafting quality

The Commission has this year continued the implementation of the 1998 inter-
institutional agreement on drafting quality in accordance with Declaration 39 on the
drafting quality of Community legislation, attached to the Amsterdam Treaty.

The inter-institutional practical guide for services has been overhauled and is shortly
to be widely published and placed online. The training of reviser-linguists, who play
an essential role in ensuring the quality of legislation, has been stepped up this year,
and particular emphasis has been placed on the practical guide and the specific
the
features of
In addition,
this work (multi-lingualism, working rules, etc).
LegisWrite informatics tool, which allows common presentation throughout
the
institutions, has been further developed, particularly with a view to codification and
recasting.

68

69

70

71

"The competition rules for supply and distribution agreements" and "Glossary of terms used in
EU competition policy" are available via:
http://europa.eu.int/comm/competition/publications/rules_en.pdf
Available via http://europa.eu.int/comm/dgs/health_consumer/library/pub/pub09_en.pdf
Available via http://europa.eu.int/comm/culture/index_en.htm
Available via http://europa.eu.int/comm/justice_home/index_en.htm

21

Lastly, a first seminar has been organised on the problems of ensuring drafting quality
between the Commission and the Member States.

4.

CONCLUSIONS

The year 2002 is the tenth year of application by the European Parliament, the
Council and the Commission of the principles of subsidiarity and proportionality, as
laid down in the Treaty of Maastricht. The first assessment which can be made of this
period, which was confirmed yet again in 2002, is favourable. The Institutions have
on the whole satisfactorily observed Article 5 of the EC Treaty and the annexed
Protocol. This positive assessment by the Commission is moreover shared by the
European Council in its conclusions and by the European Parliament in its biannual
report, and by the low number of appeals to the Court of Justice on grounds of
subsidiarity or proportionality.

Furthermore, the Convention on the Future of the Union acknowledged that there
were very few cases in which the Institutions failed to respect the principle of
subsidiarity. Nevertheless, with a view to involving national Parliaments
in
monitoring Community legislation, one of the Convention's working groups has
proposed to establish an early warning mechanism for Commission proposals and
provision for referral to the Court of Justice, particularly by national Parliaments and
the Committee of the Regions.

With regard to the quality of legislation either in the process of adoption or already
adopted, the Commission has this year taken numerous initiatives which it intends to
implement in order to consolidate the work which has been achieved over several
years. It hopes to have the political support and substantial involvement of the
European Parliament and the Council in this area.

22