Report from the Commission "Better lawmaking 2003" pursuant to Article 9 of the Protocol on the application of the principles of subsidiarity and proportionality (11th Report)
Date: 2003-12-12
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, 12.12.2003
COM(2003)770 final

REPORT FROM THE COMMISSION

“BETTER LAWMAKING 2003”

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

(11th REPORT)

EN

  EN

TABLE OF CONTENTS

1.

2.

2.1.

2.2.

2.3.

2.4.

3.

3.1.

3.2.

3.3.

4.

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

Better regulation ...........................................................................................................4

The general context.......................................................................................................4

Actions taken by the Commission ................................................................................5

Action at the level of Community institutions............................................................11

Actions taken by the Member States ..........................................................................13

Application of the principles of subsidiarity and proportionality...............................16

The legal and institutional framework ........................................................................16

Application of the principles by the Commission in 2003 .........................................18

Application of the principles in the legislative process ..............................................24

Conclusions.................................................................................................................28

Annex 1: Legislative activity in 2003.......................................................................................31

Annex 2: Public consultation in 2003.......................................................................................32

Annex 3: Impact Assessment....................................................................................................35

Annex 4: New guidelines on the collection and use of expertise .............................................37

Annex 5: Updating and simplifying the Community acquis ....................................................39

Annex 6: Quality of drafting.....................................................................................................41

2

 
1. 

INTRODUCTION

Improving legislative processes and output is a permanent challenge for the Union. It
calls  for  mutually  supporting  actions.  One  is  to  ensure  compliance  with  the
principles  of  subsidiarity  and  proportionality.  Another  is  to  work  on  the  quality
and accessibility of Union legislation.

Since December 1992, the Commission is required to report annually to the European
Council on the application of subsidiarity and proportionality, as defined in Article 5
of the EC Treaty1. More recently, the Union has been devoting increasing attention to
better  regulation  in  a  wider  sense,  in  particular  the  quality  and  accessibility  of  the
Union legislation.

The present eleventh report2 on “Better Lawmaking” reflects these developments and
puts special emphasis on the important “better regulation” efforts that have been made
in the Union in 20033.

The  report  is  divided  into  two  parts.  The  first  part  is  dedicated  to  the  general
framework  for  better  regulation.  It  reviews  the  implementation  in  2003  of  the
Commission’s Action Plan “simplifying and improving the regulatory environment”4.
It also reviews progress achieved by the institutions, in particular the adoption by the
European  Parliament,  the  Council  and  the  Commission  of  an  Inter-Institutional
Agreement (IIA) on Better Lawmaking.

The  second  part  of  the  report  focuses  on  the  application  of  the  principles  of
subsidiarity  and  proportionality.  It  offers  an  overview  of  the  legal  and  institutional
framework  and  provides  an  assessment  of  how  the  Commission  applies  these
principles in executing its right of initiative, and how the European Parliament and the
Council apply them when amending proposals.

This  presentation  in  two  separate  parts  does  not  mean  that  compliance  with  the
principles of subsidiarity and proportionality and implementation of better regulation
are unrelated. On the contrary, they are intimately linked as the measures introduced
to  improve  regulation  should  make  for  better  compliance  with  the  principles  of
subsidiarity  and  proportionality,  and  vice  versa.  This  structure  was  only  chosen
because it allows for a systematic review of the very substantial efforts now underway
in the Union to improve the quality and accessibility of legislation.

1

2

3

4

The  request  of  the  Edinburgh  European  Council  of  December  1992  was  subsequently
incorporated  into  the  inter-institutional  agreement  on  procedures  for  implementing  the
principle of subsidiarity of 1993 and into the Protocol on the application of the principles of
subsidiarity and proportionality annexed to the Treaty of Amsterdam (1997).
The references of the previous reports are listed in the footnote of Annex 1.
It should be noted that the report was finalised in time for presentation to the meeting of the
European Council to be held in December 2003. The report is therefore based on the evidence
available by early November 2003.
Hereafter referred to as the Action Plan. COM(2002)278 of 5 June 2002.

3

 
                                                
2. 

BETTER REGULATION

2.1. 

The general context

The  institutions  of  the  Union  have  repeatedly  acknowledged  the  importance  of
improving the regulatory environment5. It is to the benefit of EU citizens to live in a
more effective, efficient and transparent system. It also creates favourable conditions
for economic competitiveness, growth, employment and sustainable development.

The Commission’s 2002 Action Plan and the subsequent communications detailing it
constitute  the  most  comprehensive  and  ambitious  efforts  yet  in  pursuit  of  these
objectives.

However,  no  strategy  for  better  regulation  can  fully  succeed  without  the  strong  and
continued political commitment  of  all the  institutions  of  the  Union  and  the  Member
States.  The  Commission  has  a  special  responsibility  at  three  levels:  preparation,
follow-up  and  implementation  of  the  legislation.  The  European  Parliament  and  the
Council  have  an  equally  important  responsibility  when  deliberating,  amending  and
adopting proposals. Ideally, agreements on new legislation should not be achieved at
the cost of unduly complex solutions that lower the legislative quality. The Member
States have an important role to play insofar as they are responsible for applying and,
in the case of directives, transposing Community legislation at national level.

Improving  the  regulatory  environment  to  obtain  concrete  benefits  for  citizens  is
therefore  the  joint  responsibility  of  the  European  Parliament,  the  Council,  the
Commission and the Member States, regardless of whether the concrete actions can
be undertaken by each of these actors individually or need to be implemented jointly.

When  launching  its  Action  Plan,  the  Commission  therefore  not  only  outlined  action
that  it  intended  to  take  on  its  own  responsibility  but  also  called  on  the  other
institutions  and  the  Member  States  to  contribute  to  achieving  the  objectives,  either
individually  or  in  conjunction  with  the  Commission.  In  particular,  for  those  actions
that require co-ordinated or joint implementation by the institutions, the Commission
proposed establishing an inter-institutional agreement.6

The  following  sections  review  the  main  developments  in  2003.  The  presentation  is
structured  according  to  the  key  players  (Commission,  institutions,  Member  States).
The section covering the Commission’s activities is the longest. This reflects the fact
that,  at  this  point  in  time,  it  is  mainly  the  Commission  that  has  committed  itself  on
concrete  actions  and  objectives.  The  other  institutions  and  Member  States  are
progressively becoming involved in better regulation issues and developing their own
positions and policies, which will increasingly have to be juxtaposed with those of the
Commission.

5

6

Latest  by  the  Brussels  European  Council  of  October  2003  (Conclusions  of  the  presidency,
European Council of 16-17 October 2003, point 20 on Better regulation).
See section 2.3.

4

 
                                                
2.2. 

Actions taken by the Commission

Inspired by the reactions to the Commission’s White paper on European Governance7
and the resolution adopted by the European Parliament in the wake of the Kaufmann
report8,  while  bearing  in  mind  the  recommendations  of  the  intergovernmental
“Mandelkern  Group”9,  the  Commission  proposed  in  June  2002  a  comprehensive
framework for ‘better lawmaking’ and an action plan for ‘simplifying and improving
the regulatory environment’10.

During 2002 and in early 2003, the Commission developed this action plan through 8
targeted  Communications,  while  defining  in  parallel  with  the  European  Parliament
and the Council an overall strategy on better lawmaking. The formulation of detailed
Commission policies and the interinstitutional negotiation have now been successfully
completed.  Since  mid-2003,  the  Commission’s  focus  has  consequently  shifted  fully
towards implementing the new procedures and practices.

The  Commission’s  initiatives  fall  broadly  into  two  categories:  measures  aimed  at
better preparation of Community legislation and closer monitoring of the adoption of
Union legislative acts, on one hand, and measures aimed at better implementation of
Community policies, on the other.

The  key  measures  related  to  better  preparation  include  (1)  minimum  standards  of
consultation;  (2)  new  guidelines  on  the  collection  and  use  of  expertise;  (3)  impact
assessment; (4) more attention to the choice of instruments; (5) use of a review clause
in legislative acts; and (6) use of the possibility to withdraw proposals when they are
obsolete  or  when  amendments  introduced  by  the  Parliament  and/or  the  Council
denature the proposals.

Better implementation is mainly pursued through (1) improving the quality of policy
implementation  through  better  adapted  instruments;  (2)  up-dating  and  simplifying
existing  legislation;  and  (3)  stepping  up  checks  on  the  transposition  of  Community
law.

Given  the  scope  of  the  present  report,  only  the  key  actions  and  developments  are
reviewed  –  and  even  then  in  summary  form.  Accompanying  actions,  such  as  the
upgrade  of  the  explanatory  memorandum  that  accompanies  each  Commission
proposal11 or improved co-ordination mechanisms, are not covered.

a)

New standards for public consultation

In  2003,  the  Commission  produced  5  Green  Papers  and  142  Communications.  It
also  published  73  reports  and  organised  60  Internet  consultations  through  “Your

7

8

9

10

11

COM(2001)727, 25 July 2001.
Report on the Commission White Paper on European Governance, A5-0399/2001, adopted by
the European Parliament on 29 November 2001 (OJ C 153E, 27 June 2002, pp.314-322.
Adopted in November 2001. See http://ue.eu.int/pressData/en/misc/DOC.68853.pdf
COM(2002)275 of 5 June 2002 and COM(2002)278 of 5 June 2002.
The explanatory memorandum is the way the Commission presents and explains its proposal.
New  drafting  rules  have  been  prepared  in  the  light  of  the  new  undertakings  made  in  the
Commission’s Action Plan and in the Inter-institutional Agreement on better lawmaking. They
should be approved by the Commission before the end of 2003.

5

 
                                                
Voice  In  Europe”,  the  Commission’  single  access  point  for  consultation12.  These
figures show how serious the Commission is about  providing full  information  about
its activities and policy reflection and about consulting13.

To better identify the need for an action, expectations and types of action to be taken,
the  Commission  has  introduced  minimum  standards  for  its  public  consultation14.
Based  on  a  review  completed  by  3  November  2003,  the  Commission  observes  that
minimum  standards  regarding  publication  on  the  single  access  point,  time  limits  for
responses  and  report  on  the  results  have  been  properly  applied  in  almost  all  cases.
Special effort, however, still needs to be made to improve feedback to contributors. In
a limited number of cases,  delay in  the  adoption  of  a  proposal  was  attributed  to  the
application of the standards.

b)

The new impact assessment procedure

In  2002,  the  Commission  adopted  a  new  method  of  assessment  for  all  major
Commission initiatives, that takes into account not only the economic impact, but also
the  social  and  environmental  impact  of  the  proposal  concerned15.  It  consists  of  two
main steps: a Preliminary Impact Assessment and, for a selected number of significant
proposals, a more in-depth analysis called Extended Impact Assessment (Ex-IA).

Quantitatively speaking, the Commission’s estimate is that approximately 50 % of the
Ex-IA  initially  planned  will  be  completed  by  the  end  of  December  200316.  This
relatively  low  implementation  rate  seems  to  be  part  of  a  general  problem  linked  to
optimistic planning of the Commission Work Programme for 2003, lack of resources
and political difficulties. In a limited number of cases, however, Commission services
reported  that  Ex-IAs  contributed  to  delay  the  adoption  of  proposals.  An  extended
impact assessment is a demanding exercise and services have had to adapt to the new
procedure.

Qualitatively speaking, the direct and indirect consequences of the introduction of the
new  procedure  were  largely  positive:  it  facilitated  inter-service  co-ordination,
prompted the Commission and its services to “think outside the box” and contributed
significantly to identifying more balanced solutions.

On  the  basis  of  this  trial  year,  it  appears  that  the  Commission  needs  to  address  a
number  of  teething  problems.  First,  environmental  and  social  impacts  of  proposals
need to be fully developed. Second, Ex-IAs should include more thorough discussion
of  the  principles  of  subsidiarity  and  proportionality,  in  particular  of  the  respective
merits of different regulatory approaches. Third, analyses tend to focus on one policy
option.  Policy  alternatives  should  be  examined  more  thoroughly.  Fourth,  there  is  so
far limited quantification, let alone monetisation, of the impacts. This is obviously one
of the most difficult part of the exercise. Fifth, effort should be made to rendering Ex-
IAs more accessible to the general public.

12

13

14

15

16

See http://europa.eu.int/yourvoice/consultations/index_en.htm.
For a detailed assessment on public consultation in 2003 and the new consultation procedure,
see Annex 2.
COM(2002)704, 11 December 2002.
COM(2002)276, 5 June 2002.
For a detailed assessment on Ex-IA, see Annex 3.

6

 
                                                
In  order  to  address  these  quantitative  and  qualitative  shortcomings,  the  Secretariat
General  together  with  other  horizontal  Commission  Directorates-General  will  push
forward a range of new initiatives detailed in Annex 3.

c)

New guidelines on the collection and use of expertise

Following the commitment made in the White Paper on European Governance and the
Commission’s  Science  and  Society  Action  Plan,  the  Commission  adopted  in
December 2002 a Communication defining principles and guidelines that encapsulate
good  practices  regarding  expertise17.  Promoting  quality,  openness  and
effectiveness,  these  practices  apply  whenever  Commission  departments  collect  and
use advice from external experts.

Implementation of the new guidelines has started at various levels. First, the need for
maximum openness has been taken into account in the definition of the new “standard
explanatory memorandum” and the framework for “extended impact assessment”. In
addition, initiatives aimed at widening and systematising the collection of expertise in
specific domains have been taken. In particular, the Commission has made significant
progress regarding “Scientific Support for Policies”, one of the priorities of the sixth
Framework  Programme  for  R&D  (2002-6).  The  SINAPSE  e-network  (Scientific
INformAtion  for  Policy  Support  in  Europe)  has  been  developed  and  the  pilot  phase
will be launched early 200418.

d)

Updating and simplifying the Community acquis

With the framework action “Updating and simplifying the Community acquis”19
adopted  in  February  2003,  the  Commission  launched  an  ambitious  programme  to
ensure  that  Community  legislation  is  clear,  understandable,  up-to-date  and  user-
friendly.

The results of the first phase of implementation of the framework action are mixed but
not  unsatisfactory20.  Completion  of  the  consolidation  programme  is  a  major  service
for  the  ultimate  benefit  of  citizens  and  operators.  Another  key  achievement  is  the
progressive involvement of different services in efforts to simplify legislation because
it demonstrates  that  a  change  of  regulatory  culture  is  taking  place.  The  weak  points
mainly  concern  the  short  and  medium-term  actions  to  reduce  the  volume  of
Community  legislation  (codification  and  elimination  of  outdated  legislation).
However,  the  Commission  is  satisfied  that  the  process  launched  in  February  2003
appears  to  be  taking  a  firm  foothold  and  should  continue  to  produce  benefits  for
citizens and other users of Community legislation.

e)

Choice of instruments

In its 2002 Action Plan, the Commission stressed the need to pay more attention to the
choice of instruments to pursue Treaty objectives and implement Community policies.

17

18

19

20

COM(2002)713, 11 December 2002.
For a detailed assessment on collection and use of expertise in 2003, see Annex 4.
COM(2003)71, 11 February 2003.
For  a  detailed  assessment  on  updating  and  simplifying,  see  COM(2003)623  and  SEC
(2003)1085, 24 October 2003, as well as Annex 5.

7

 
                                                
First, the Commission proposed reverting to the original definition of a directive21 by
limiting  directives  to  the  essential  aspects  of  establishing  a  legal  framework  and
objectives  to  be  met  while  leaving  the  attainment  of  these  objectives  more  to  the
Community executive and Member States.

Secondly,  the  Commission  suggested  that,  besides  ‘classical’  instruments  such  as
regulations  and  directives,  the  Union  could  consider  using  other  instruments  which
may be more flexible and efficient under certain circumstances. As these instruments
are  not  defined  in  the  Treaty,  the  Commission  proposed  referring  to  them  as
“alternative  instruments”.  On  several  recent  occasions,  the  European  Parliament
and/or  the  Council  have  questioned  or  even  opposed  Commission  proposals  using
such alternative instruments22. In other cases, one or both branches of the legislative
have  invited  the  Commission  to  abandon  the  idea  of  a  directive  in  favour  of  “soft-
law” solutions such as recommendations. With the IIA on better lawmaking, the three
institutions  have  for  the  first  time  established  common  definitions  and  agreed  on
conditions and procedures for use of co-regulation and self-regulation.

Thirdly,  the  Commission  argued  in  its  White  Paper  on  European  Governance  in
favour  of  Community  agencies  under  appropriate  circumstances.  In  order  to
safeguard fundamental institutional and  functional aspects  and  to  facilitate  decision-
making  on  the  creation  of  specific  agencies,  the  Commission  invited  the  other
institutions to  assist  in  the  development  of  a  framework  for  the  so-called  regulatory
agencies, i.e. those with a direct and formal role in Community regulation23. While the
inter-institutional  discussions  on  the  Commission’s  proposed  framework  have
advanced  only  slowly,  the  number  and  importance  of  agency  proposals  under
discussion  has  confirmed  the  underlying  trend.  Thus,  during  2003,  the  Commission
launched  proposals  for  the  creation  of  four  new  regulatory  agencies24  while  the
European railway agency was still under inter-institutional negotiation.

Finally,  the  Commission  has  proposed  target-based  tripartite  contracts  and
agreements between the Community, the States and regional or local authorities as a
flexible way of taking  account  of  specific contexts when framing  and  implementing
Community  policies25.  The  basic  idea  is  to  empower  sub-national  authorities  to
implement  specific  actions  aimed  at  achieving  objectives  defined  in  the  Union
legislation. The experimental phase was launched in 2003. The Commission decided
to go ahead with three pilot projects put forward by local authorities and enjoying the
support of the respective Member States26. The results will feed the reflection of the
Commission on the use of this instrument.

21

22

23

24

25

26

Article  249  TEC  “A  directive  shall  be  binding,  as  to  the  result  to  be  achieved,  upon  each
Member State to which it is addressed, but shall leave to the national authorities the choice of
form and methods.”
See section 3.3.b).
COM(2002)718, 11 December 2002.
European Agency  for the Management of Operational  Co-operation at the External Borders;
European  Centre  for  Disease  Prevention  and  Control;  European  Network  and  Information
Security Agency ; European Chemicals Agency.
See the White paper on European governance and COM(2002)709, 11 December 2002.
Birmingham (UK) on urban  mobility,  Lille (France) on the management of urban  greenfield
areas, and Pescara (Italy) on urban mobility and air quality

8

 
                                                
f)

Better monitoring of the application of Community law

It is the Commission’s responsibility to verify that Community legislation is properly
implemented  and  ensure,  in  close  cooperation  with  Member  States,  that  the
legislation’s  impact is in line  with its objectives.  Having  codified  the  administrative
measures  concerning  the  processing  of  complaints27,  the  Commission  adopted  in
December 2002 a Communication setting out a series of actions aimed at improving
the monitoring of the application of Community law28.

Several  specific  measures  are  currently  being  introduced  in  the  Commission’s
monitoring system. The Commission now systematically includes a provision in draft
directives,  requiring  Member  States  to  notify  the  Commission  of  structured  and
detailed  information  on  how  Community  law  has  been  transposed  into  national  law
(so-called  transposition  concordance  tables).  This  information  is  essential  for  the
Commission’s monitoring of timely and correct transposition.

Moreover,  an  on-line  site  called  “calendar  for  transposition  of  directives”29  now
allows  Member  States  and  citizens  to  consult  on  a  regular  basis  the  deadlines
applicable for transposition of Community directives.  This  instrument  also  make  for
better programming of transposition by the national authorities and should contribute
significantly  to  avoiding  infringements  procedures  for  failure  to  comply  with
Community law.

The new electronic standard form for notification of national transposition measures is
currently  being  implemented  by  the  Commission’s  services.  A  new  interface
integrated  in  the  Commission’s  ASMODEE  II  database  (management  of  Member
States’  transpositions)  will  allow  national  administrations  to  connect  directly  to  the
non-confidential part of the Commission’s internal data30.

The Commission’s annual report on the monitoring of the application of Community
law goes into these and related items in greater detail. It will be a complete source of
information  on  transposition  and  Commission’s  management  of  the  infringement
procedures in 2003.

27

28

29

30

COM(2002)141, 20 March 2002.
COM(2002)725, 11 December 2002.
See http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#echeancier
The Secretariat General of the Commission also provides bimonthly information on Member
States  notifications of national  measures  of  implementation  (europa.eu.int/comm/secretariat_
to  EU
general/sgb/droit_com/index_fr.htm#transpositions).  Besides, 
enlargement,  the  Commission’s  services  have  allowed  new  Member  States  access  to  a  new
database on pre-notification which gives information on the parts of the “Community acquis”
that have been already transposed.

run  up 

the 

in 

9

 
                                                
g)

Other actions

Quality of drafting

In  December  1998,  the  three  institutions  involved  in  the  legislative  process  adopted
the Inter-institutional Agreement on common guidelines for the quality of drafting of
Community legislation31.

Over the last five years, the following measures have been taken in pursuance of that
agreement.  The  Parliament,  the  Council  and  the  Commission  have  drawn  up  and
published  a Joint Practical  Guide  for  persons  involved  in  the  drafting  of  legislation.
The  Commission’s  internal  procedures  have  been  organised  to  permit  the  Legal
Service to make drafting suggestions at an early stage in the process. Training in legal
drafting has been organised. Besides the departments responsible for ensuring drafting
quality in the European Parliament, the Council and the Commission expanded their
collaboration.  Cooperation  with  the  Member  States  was  also  enhanced  through
seminars on legislative quality32.

Review and revision clauses

In its June 2002 Action Plan, the Commission stated that, without prejudice to its right
of  initiative,  it  will  take  steps  to  add,  where  appropriate,  a  review  clause,  or  even  a
revision  clause,  to  its  legislative  proposals,  particularly  those  which  are  subject  to
rapid technological change, so that legislation can be updated and adjusted regularly.

In  policy  areas  or  sectors  including  environment33,  energy34,  automobile35  and
chemicals36,  clauses  referring  to  future  adaptation  to  technical  progress  were  added
almost  systematically.  Revision  clauses  were  also  included  in  the  Commission’s
proposals regarding intellectual property and immigration37.

31

32

33

34

35

36

37

instance, 

the  proposal  on 

OJ C 73, 17 March 1999, p.1.
For a detailed assessment on quality of drafting, see Annex 6.
Monitoring  Mechanism  Decision  COM(2003)51,  5  February  2003;  Fluorinated  greenhouse
gases regulation COM(2003)492, 11 August 2003; Registration, evaluation, authorisation and
restriction of chemicals (REACH) COM(2003)644, 29 October 2003.
Proposal on Eco-design requirements for Energy-Using Products COM(2003)453 of 1 August
2003.
For 
trailers
(COM(2003)418,  14  July  2003)  provides  that,  no  later  than  31  March  2007,  the  Member
States will have to inform the Commission on the application of the type-approval system and,
where  appropriate,  the  Commission  shall  propose  the  amendments  deemed  necessary  to
improve the type-approval process.
For  instance,  the  proposed  Regulation  concerning  cadmium  in  fertilizers,  (2003/ENTR/40)
contains a revision clause  allowing  account  to  be  taken  of  developments  in  the  treatment  of
phosphate in view of minimising the rate of cadmium.
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ
L  251,  3  October  2003,  p.12)  and  Council  Directive  concerning  the  status  of  third  country
nationals  who are  long-term  residents  (COM(2001)127, 13  March  2001;  political  agreement
reached in Council on 5 June 2003).

the  approval  of  motor  vehicles  and 

their 

10

 
                                                
Withdrawal of pending proposals

The  Commission  remains  committed  to  make  greater  use  of  the  possibility  of
withdrawing proposals whenever they have become non-topical. For that purpose, the
Commission  periodically  withdraws  series  of  pending  proposals  and  plans  to  repeat
the exercise in 200438.

In  its  Action  Plan,  the  Commission  announced  that,  besides  ‘routine’  withdrawal,  it
will consider resorting to more political withdrawal. It intends exercising its right of
initiative  through  withdrawal  of  individual  proposals  whenever  the  amendments
introduced  by  the  Council  and  the  European  Parliament  change  the  nature  of  the
proposal  or  introduce  complexity  which  is  incompatible  with  the  provisions  of  the
Treaty. No such case has been reported in 2003.

2.3. 

Action at the level of Community institutions

Improving  the  quality  of  Community  legislation  requires  close  collaboration  among
all  institutions  involved  in  the  legislative  process,  starting  with  the  European
Parliament and the Council.

Following the invitation made by the European Council of Seville in June 2002, the
European  Parliament,  the  Council  and  the  Commission  agreed  on  an  Inter-
institutional  Agreement  on  better  lawmaking.  This  agreement  should  be  adopted
and enter into force before the end of 2003. The main objectives of the agreement are
to  improve  the  quality  of  Community  legislation  and  its  transposition  into  national
law.  The  agreement  entrenches  best  practices  and  sets  out  new  objectives  and
commitments. The main elements of the agreement include:

(cid:1)  Improvement  of  inter-institutional  co-ordination  and  transparency.  The  three
institutions  will  reinforce  their  coordination  through  their  respective  annual
legislative  timetables  with  a  view  to  reaching  agreement  on  joint  annual
programming.  Besides,  the  Commission  and  the  Council  undertake  to  increase
their presence and participation in  discussions  at  European  Parliament  committee
meetings and plenary sittings.

(cid:1)  Stable framework for ‘soft law’ instruments that should facilitate their future use.
The three institutions have for the first time established a common definition of co-
regulation and self-regulation39. They also agreed on general limits and conditions
to the use of those methods, defining the role of each institution in the process and
ensuring  that  the  prerogatives  of  the  legislative  authorities  are  respected.  In
particular,  co-regulation  and  self-regulation  “will  not  be  applicable  where

38

39

The last exercise led to the withdrawal of more than 100 proposals.
The Inter-institutional Agreement on better lawmaking provides the following definitions: Co-
regulation: “… the mechanism whereby a Community legislative act entrusts the attainment of
the objectives defined by the legislative authority to parties which are recognised in the field
(such as economic operators, the social partners, NGOs or associations)”; Self-regulation: “the
possibility for economic operators, the social partners, NGOs or associations to adopt amongst
themselves  and  for  themselves  common  guidelines  at  European  level  (particularly  codes  of
practices  or  sectoral  agreements)”.  The  rules  on  the  functioning  of  the  social  dialogue
(Articles  138  and  139  TEC)  and  standardisation  according  to  the  “New  Approach”  are  not
affected by this agreement.

11

 
                                                
fundamental rights or important political options are at stake or in situations where
the  rules  must  be  applied  in  a  uniform  fashion  in  all  Member  States”.  Under  co-
regulation,  following  notification  of  a  draft  agreement  prepared  by  interested
parties, the Parliament and the Council will have the right to suggest amendments
to the agreement, object to its entry into force and, possibly, ask the Commission to
submit a proposal for a legislative act. As for self-regulation, the Commission will
keep the Legislators informed by reporting on the practices it regards as effective
and satisfactory in terms of representativeness.

(cid:1)  Increased  use  of  impact  assessment  in  Community  decision-making.  Where  the
codecision  procedure  applies,  the  Parliament  and  the  Council  may  have  impact
assessments  carried out  prior to the adoption of  any  substantive  amendment.  The
three  institutions  will  also  examine  the  possibility  of  establishing  a  common
methodology on the basis of experience gained.

(cid:1)  Commitment to set a binding time limit for the transposition of the directives into
national  law.  Each  directive  should  indicate  that  time  limit  which  should  be  as
short as possible and generally not exceed two years.

The Commission welcomes this agreement as broadly coherent with the initiatives set
out in its June 2002 Action Plan. It marks the most ambitious effort yet undertaken to
improve regulation by associating the three institutions in an overall strategy for better
lawmaking at EU level, while respecting the responsibilities of each institution.

In  its  June  2002  Action  Plan,  the  Commission  also  proposed  the  creation  of  a
legislative  network  between  the  Community  institutions  to  ensure  the  quality  of
legislation.  The  Commission  notes  with  satisfaction  that  the  existing  High-Level
Technical  Group  on  Inter-institutional  Cooperation  will  be  responsible  for
implementing and monitoring the agreement.

The IIA on better lawmaking only entered into force in December 2003. It is therefore
too  early  to  make  a  detailed  assessment  of  its  impact.  In  the  course  of  its
implementation, the Commission intends in particular to pay special attention to:

(cid:1)  procedures  for  adoption  of  simplification  proposals.  The  IIA  acknowledges  the
importance  of  simplifying  Community  secondary  legislation,  in  line  with  the
approach proposed  by the Commission. Although  it was not possible  to agree  on
concrete procedural rules for inclusion in the IIA, it provides that within 6 months
of its entry into force the European Parliament  and  the Council will  modify  their
working  methods  by  introducing  for  instance  ad  hoc  structures  with  the  specific
task of simplifying legislation.

(cid:1)  the  possibility  of  establishing  a  common  methodology  concerning  impact
assessment, after a review of the respective experiences of the three institutions in
this domain.

The IAA complements three other inter-institutional agreements of importance to
better regulation. The first is the Inter-institutional Agreement of 22 December 1998
on  common  guidelines  for  the  quality  of  drafting  of  Community  legislation  (see
above Section 2.2.g).

12

 
The  second  is  the  Inter-institutional  Agreement  of  20  December  1994  on  an
accelerated  working  method  for  official  codification  of  legislative  texts40.  The
Agreement  provides  a  framework  for  the  codification  of  Community  law,  but  the
results have been disappointing. This is largely due to the fact that, despite it being a
purely technical exercise, the normal legislative process applies in full. Several years
can  therefore  pass  between  the  preparation  of  the  Commission's  proposal  for  a
codified  act  and  its  adoption.  Although  the  Agreement  refers  to  an  accelerated
procedure,  only  the  committee  procedures  within  the  European  Parliament  and  the
Council  have  been  streamlined.  The  time  has  perhaps  come,  nine  years  after  the
Agreement's  adoption,  for  the  institutions  to  examine  ways  of  establishing  a  truly
accelerated procedure for this type of non-controversial legislation.

The  third  existing  Inter-institutional  Agreement  on  a  more  structured  use  of  the
recasting technique for legal acts41 entered into force in March 2002. The Agreement
provides  for  techniques  to  clearly  identify  the  substantially  new  elements  of  draft
legislation from those parts of legislation that are only proposed for codification. The
Commission's  informatics  tool  conceived  specially  for  recast  acts  (Legiswrite
Codification/Refonte)  has  been  further  improved  and  is  in  the  process  of  being
approved  by  the  Council.  The  Commission  has  already  adopted  several  major
legislative initiatives pursuant to this Agreement, and these proposals are now being
examined  by  the  legislative  authority.  A  correct  and  efficient  application  of  the
Agreement in these pioneering cases should encourage further use of recasting.

Finally, the Commission also envisages to develop a common approach with the other
institutions on the collection and use of expertise. The ambition of the Commission
is that, over time, its guidelines could form the basis for a common approach for all
Institutions  and  Member  States42.  Considering  that  the  guidelines  are  progressively
being put into use by Commission departments, it is too early to identify  and codify
good practices that could possibly be applied by the other institutions.

2.4. 

Actions taken by the Member States

Member States have an important role to play in better lawmaking insofar as they are
responsible  for  applying  and,  in  the  case  of  directives,  transposing  Community
legislation at national level. The Lisbon European Council of March 2000 underlined
the importance of their contribution in the perspective of establishing a complete and
fully operational internal market43.

Subsequently,  Member  States  launched  an  inter-governmental  exercise  to  develop
guidelines for collaboration among themselves. In November 2001, the “Mandelkern
Group” presented its recommendations which were endorsed by the Laeken European
Council of December 2001.  In  May  2002  in  La  Rioja,  the  Ministers  responsible  for

40

41

42

43

OJ C 102, 04 April 1996, pp. 2-3
OJ C 077, 28 March 2002, pp. 1-3.
Objective stated in the White paper on European Governance and in the Science and Society
Action Plan of December 2001.
The  Member  States  have  been  asked  to  set  out  at  national  level  “a  strategy  for  further
coordinated  action  to  simplify  the  regulatory  environment,  including  the  performance  of
public  administration”  and  to  rationalize  the  transposition  of  Community  legislation
(Presidency conclusions, Lisbon European Council of 24 March 2000, point 17).

13

 
                                                
public  administration  adopted  a  specific  mid-term  programme  partially  dealing  with
better regulation.

Concurrently  the  Commission  has  called  on  Member  States  to  assume  their
responsibility  when  it  comes  to  simplifying  and  improving  European  regulatory
environment.  This  concerns  primarily  transposition  of  Community  legislation  (as
discussed under section 2.2.f) but also covers 44:

(cid:1)  Impact  assessments  and  public  consultations.  Following  the  recommendations  of
the  Mandelkern  Group,  the  Commission  has  encouraged  Member  States  to  carry
out impact assessments of draft national legislation notified to it45. In line with the
strategy  defined  at  the  Lisbon  European  Council,  Member  States  should  also
ensure  that  Community  acts  are  transposed  in  their  national  legislation  correctly
and  within  the  set  deadline.  For  that  purpose  it  has  been  recommended  that
Member  States  consult  on  and  evaluate  the  merits  of  the  various  approaches  for
reaching  the  objectives  set  by  a  directive.  Clear  standards  of  consultation  and
impact  assessment  were  also  seen  as  indispensable.  By  analogy  with  what  is
required  from  EU  institutions,  the  Commission  has  particularly  stressed  the  need
for  Member  States  to  hold  consultations  and  make  impacts  assessments  before
submitting EU legislative proposals, in order to ensure appropriate quality46.

(cid:1)  Contribution to the Commission’s actions in favour of better regulation, including

on simplification and transposition of Community legislation.

(cid:1)  Development  of  good  co-ordination  between  the  Commission  and  the  Member

States.

The  available  evidence  concerning  Member  State  efforts  towards  better  regulation
does not allow a detailed comparison or assessment of progress across Member States.
The  first  attempt  to  provide  a  coherent  and  comparable  analysis  of  Member  States’
work was made in June 2003 by the Greek Presidency47.The picture is as follows:

(cid:1)  The majority of the Member States have introduced  and implemented horizontal

policies on better regulation.

(cid:1)  As  far  as  the  transposition  of  the  European  legislation  is  concerned,  methods

and allocation of responsibilities48 remain quite different.

44

45

46

47

48

Section 3 of the Action Plan, COM(2002)278.
Notifications under Directive 98/34//EC of the European Parliament and of the Council of 22
June 1998 laying down a procedure for the provision of information in the field of technical
standards and regulations and of rules on information society services, OJ L 204 of 21 July 98
(modified  by  Directive  98/48/EC  of  the  European  Parliament  and  of  the  Council  of  20  July
1998, OJ L 217 of 5 August 1998).
Member States have a right of initiative concerning police and judicial cooperation in criminal
matters (title VI TEU).
Report to the Ministers responsible for Public Administration in the EU Member States on the
progress of the implementation of the Mandelkern Report’s Action Plan on Better Regulation,
ad hoc Group of Directors and Experts on Better Regulation (DEBR), Athens, May 2003.
In  some  cases  the  line  Ministries  are  responsible,  while  in  others,  the  Ministries  of  Foreign
Affairs are supervising the process.

14

 
                                                
(cid:1)  The  majority  of  Member  States  have  developed  standard  procedures  for  impact
assessment.  In  some  cases,  impact  assessment  is  compulsory  for  new  legislative
initiative. But there are still questions about quality and systematic use.

(cid:1)  As  for  public  consultation,  Member  States  are  generally  introducing  more
systematic  procedures.  However,  practices  still  vary  considerably  at  different
levels: consultation is not always compulsory; the time given to respondents ranges
from 3 to 12 weeks; publication and use of results also vary. Not all Member States
use the Internet for public consultation but it seems that its use is expanding.

(cid:1)  Over  the  past  few  years  significant  efforts  to  simplify  existing  legislation  have
been  introduced  in  many  Member  States.  Most  now  have  simplification
programmes  (often  meant  to  help  SMEs),  if  not  comprehensive  simplification
policies.  Member  States  acknowledged  that  their  widely  differing  approaches
should be seen as a challenge for exchange of know-how and best practices.

(DEBR), 

reporting 

(cid:1)  Various  measures  have  been  suggested  for  improving  exchange  of  information
and  co-ordination.  The  informal  group  of  Directors  and  Experts  on  Better
for  Public
Regulation 
Administration, is currently the main forum for discussion and initiatives on better
regulation between Member States. A mid-term programme has been launched to
develop  and  exchange  best  practices  concerning  regulatory  impact  assessment.
There  is  as  yet  no  general  forum  for  collaboration  between  the  Community  and
national authorities on better lawmaking, although the option of creating an ad hoc
working group of the Council on better regulation has been proposed49.

the  Ministers  Responsible 

to 

Overall,  practices  and  performances  across  the  Member  States  remain  very  diverse
and in the absence of common methodology, it is difficult to present definitive data on
their performance. The direction taken is nevertheless encouraging.  At their meeting
in  Rhodes  in  June  2003,  the  Ministers  responsible  for  public  administration
unanimously  reiterated  their  backing  to  reform  and  welcomed  new  Community
initiatives. The co-operation between the Commission and the Member States as well
as  among  Member  States  is  progressively  going  beyond  an  exchange  of  ideas  and
experiences, moving towards the development of common actions and instruments.

49

Both the Council of Ministers (Competitiveness - 30 September 2002) and Ministers of Public
Administrations (Resolution of 6 June 2003) have called for the establishment of a dedicated
working  group  on  better  regulation  within  the  Council  structures.  The  Commission  has
recognised  the  valuable  contribution  that  such  a  Group  could  make  (Communication  on  the
Internal Market Strategy 2003-2006).

15

 
                                                
3. 

APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY

3.1. 

The legal and institutional framework

a)

The definition given by the Treaties

Subsidiarity  and  proportionality  are  among  the  main  organising  principles  of  the
Union. The Treaty on the European Union stipulates indeed that any action taken by
the  Union  to  achieve  its  objectives  must  be  in  accordance  with  the  principle  of
subsidiarity50.  Article  5  of  the  Treaty  establishing  the  European  Community  (TEC)
gives a  general  definition  of  subsidiarity  and  proportionality,  indicating  respectively
when  and  how  the  Community  should  act.  A  protocol  annexed  to  the  Treaty  of
Amsterdam sets precise criteria for applying these principles51.

Subsidiarity is a  guiding  principle  for  defining  the boundary  between  Member  State
and  EU  responsibilities  (Who  should  intervene?).  If  the  area  concerned  is  under  the
exclusive competence of the Community, there is of course no doubt as to who should
intervene.  If  competence  is shared  between  the  Community  and  the  Member  States,
the  principle  clearly  establishes  a  presumption  in  favour  of  decentralisation.  The
Treaty indeed states that Community action is justified only whether:

(cid:1)  there are transnational aspects which cannot be satisfactorily regulated by national

measures (necessity test I);

(cid:1)  national  measures  alone  or  lack  of  Community  action  would  conflict  with  the
requirements of the  EC  Treaty  or  would  otherwise  significantly  damage  Member
States’ interests (necessity test II); and

(cid:1)  action  at  Community  level  would  provide  clear  benefits  compared  to  national

measures (added value test).

Subsidiarity,  by  essence,  is  a  dynamic  or  contingent  concept.  For  instance,  the
capacity of national authorities to control transnational issues varies over time. Their
control capacity has decreased over the last decades and has become insufficient on a
number of issues. Vice versa, some Community measures introduced in the context of
the  1960s  do  not  necessarily  have  the  same  added  value  in  2003.  As  the  Protocol
stresses, subsidiarity allows Community action “to be expanded where circumstances
so  require,  and  conversely,  to  be  restricted  or  discontinued  where  it  is  no  longer
justified.” Major changes in the Union and beyond may therefore require a reappraisal
of the rules derived from this principle.

Proportionality is a guiding principle for defining how the Union should exercise its
competence, once it has been established that it should take action (what should be the
form,  nature  and  extent  of  EU  action?).  In  order  to  establish  whether  a  measure
complies with the principle of proportionality, it must be ascertained whether:

50

51

Article  2  of  the  Treaty  on  European  Union  states  that  “the  objectives  of  the  Union  shall  be
achieved as provided in this Treaty … while respecting the principle of subsidiarity”
Protocol  on  the  application  of  the  principles  of  subsidiarity  and  proportionality  (see
http://europa.eu.int/eur-lex/en/treaties/dat/amsterdam.html#0173010078).

16

 
                                                
(cid:1)  the  means  employed  are  suitable  for  the  purpose  of  achieving  the  objectives

(effectiveness test);

(cid:1)  these  means  do  not  go  beyond  what  is  necessary  to  achieve  the  objectives

(efficiency test).

A  priori,  proportionality  leaves  considerable  discretion  to  the  Union’s  legislature52.
Assessing  effectiveness  and  efficiency  is  often  quite  complex.  In  most  cases,  there
will be a range of options that comply with the proportionality principle. Rightly so,
institutions  involved  in  the  legislative  process  will  always  have  to  take  a  political
decision in favour of one specific policy option.

This being said, the clarifications offered by the Protocol regarding proportionality set
specific limits. Firstly, “the form of Community action shall be as simple as possible”
and,  whenever  legislating  appears  necessary,  “directives  should  be  preferred  to
regulations”  (minimal  –  legal  –  constraint  test).  Secondly,  the  need  to  minimise  the
financial  or  administrative  burden  for  all  levels  of  government,  economic  operators
and citizens should be taken into account (minimal cost test). The third clarification –
Community  action  should  “leave  as  much  scope  for  national  decision  as  possible”
(minimal  scope  test)  –  is  basically  redundant  with  the  conditions  already  set  by  the
subsidiarity principle. It does however specify that “while respecting Community law,
care should be taken to respect well established national arrangements”.

b)

The obligations of the Institutions

Application  of  the  principles  of  subsidiarity  and  proportionality  is  a  responsibility
shared  by  all  institutions  of  the  Union53.  The  Protocol  on  the  application  of  these
principles also sets specific institutional obligations for the Commission, the Council
and the European Parliament.

Among  other  things,  the  Commission  is  required  –  without  prejudice  to  its  right  of
initiative  –  to  consult  widely  before  proposing  legislation;  to  justify  explicitly  the
relevance  of  its  proposals54  in  the  accompanying  explanatory  memorandum;  and  to
take into account the burden falling upon the Community, national governments, local
authorities, economic operators and citizens.

The  European  Parliament  and  the  Council  have  to  verify  that  the  Commission
proposals  and  the  amendments  they  envisage  making  are  consistent  with  the

52

53

54

See European Court of Justice, Case C-84/94 United Kingdom versus Council of the European
Union – action for annulment of Council Directive 93/104/EC concerning certain aspects of
the organization of working time, judgment of 12 November 1996.
“In  exercising  the  powers  conferred  on  it,  each  institution  shall  ensure  that  the  principle  of
subsidiarity  is  complied  with.  It  shall  also  ensure  compliance  with  the  principle  of
proportionality (…)” Article 1 of the Protocol.
Reasons for concluding that an objective can be better achieved by the Community “must be
substantiated  by  qualitative  or,  wherever  possible,  quantitative  indicators”  (Article  4  of  the
Protocol).  Such  reasons  may  be  the  divergent  evolution  of  the  Member  States’  national
legislation or the failure of a previous Union measure to produce results (see for instance the
proposed directive on consumer credit).

17

 
                                                
principles of subsidiarity and proportionality55. In other words, the current system puts
the burden of the proof on the institutions involved in the Union’s legislative process
(Who does the defining?).

c)

The constitutional debate on subsidiarity and proportionality

In July 2003, the European Convention proposed a revised framework for subsidiarity
and proportionality. This part of the draft constitutional treaty appears to enjoy wide
consensus. Provided that the IGC confirms this approach and the result is ratified by
all Member States, the system designed by the European Convention could be in place
by 2006.

The main innovation of this framework is the obligation for the Legislator to review a
proposal  whenever  a  sufficient  number  of  National  Parliaments  consider  that  the
proposal does not comply with subsidiarity. Under Article 9 of the draft treaty, while
“the  Union  institutions  shall  apply  the  principle  of  subsidiarity”,  “National
Parliaments  shall  ensure  compliance  with  that  principle”  through  a  new  monitoring
system.  For  that  purpose  the  following  obligations  and  procedures  would  be
introduced in a revised protocol on the application of subsidiarity and proportionality:
National  Parliaments  would  be  systematically  informed  of  all  legislative  proposals,
amended proposals and legislative resolutions upon adoption; they could then decide
to activate an early warning system56. In addition they would have the possibility, via
the  Member  States,  to  refer  suspected  violations  of  the  principles  to  the  European
Court of Justice.

The proposed system offers a reasonable balance. On one hand, it involves National
Parliaments  without  slowing  down  dramatically  the  decision-making  mechanism  of
the Union. On the other, it fully preserves the Commission’s right of initiative and the
prerogatives of EU legislature.

3.2. 

Application of the principles by the Commission in 2003

As it is impossible here to review all the  Commission's proposals in the light of the
conditions and obligations summarised in section 3.1.b), the report presents a number
of  representative  cases  showing  how  the  Commission  has  applied  the  principles  of
subsidiarity and proportionality when drafting, revising or withdrawing a proposal.

In line with the commitment set out in the White Paper on European Governance, the
report focuses on the actions corresponding to the political priorities identified in the
Commission’s  Legislative  and  Working  Programme  for  200357.  A  couple  of  other

55

56

57

When  the  co-decision  procedure  does  not  apply,  the  Council  has  in  addition  to  inform  the
European  Parliament  of  its  position  on  the  application  of  TEC  Article  5  (Article  12  of  the
Protocol).
National Parliaments would have six weeks for sending a reasoned opinion on the proposal or
resolution.  Where  opinions  issued  represent  at  least  one  third  of  all  the  votes  allocated  to
National  Parliaments,  the  Commission  has  to  review  its  proposal.  After  such  review,  the
Commission may decide to maintain, amend or withdraw its proposal, but shall give reasons
for its decision.
The  2003  Programme  identifies  three  political  priorities:  an  enlarged  Europe;  stability  and
security; and a sustainable and inclusive economy (COM(2002)590, 30 October 2002).

18

 
                                                
actions are nevertheless reviewed in order to give a global impression of the Union’s
activities.

a)

When subsidiarity calls for Community action to be expanded

Road safety illustrates most clearly when and why the Union considers that absence of
action at EU level can no longer be justified in the light of subsidiarity58. The serious
transnational consequences of a number of major accidents have stressed the need for
uniform, constant and high level of protection in tunnels on the Trans-European Road
Network.  The  nature  of  these  accidents  and  the  problems  they  posed  to  national
authorities also indicated that action by Member States  was  clearly insufficient. The
Commission therefore reckoned that minimum safety requirements for tunnels had
to be set at Community level59.

On  the  basis  of  an  in-depth  impact  assessment,  the  Commission  came  to  the
conclusion that a directive was needed for the most sensitive tunnels (i.e. those over
500  metres  long)  in  order  to  prevent  critical  events  that  endanger  human  life,  the
environment  and  tunnel  installations,  as  well  as  to  guarantee  a  minimum  level  of
safety in the event of accidents60.

Although  the  European  Parliament  and  the  Council  asked  for  a  number  of
amendments  regarding  the  nature  of  the  organisational  and  technical  requirements
proposed, there was unanimity on the fact that Community action was plainly justified
on the basis of the subsidiarity principle.

Not  all  cases  however  are  as  clear-cut  as  tunnel  safety,  as  the  debate  on  public
services  has  shown.  In  March  2002,  the  Barcelona  European  Council  asked  the
Commission  to  examine  the  usefulness  of  adopting  a  framework  directive  on  the
“services of general economic interest”. The Commission answered in May 2003 with
the presentation of a Green Paper aiming in particular at defining the role of the Union
in the promotion of high quality public services61.

For the Commission, it is a moot point what might be the proper scope of action and
instrument in these matters. The Commission therefore thought it necessary to widen
the  debate  to  “services  of  general  interest”62  and  expand  the  range  of  possible
approaches assessed. The first step of the analysis was to organise public consultation

58

59

60

61

62

Among other exemplary cases, see Proposal for a Directive on the enforcement of intellectual
property  rights,  COM(2003)46  of  30  January  2003,  Proposal  on  enhancing  ship  and  port
facility  security  COM(2003)229  of  2  May  2003  and  Proposal  for  the  amendment  of  the
Community  guidelines  for  the  development  of  the  trans-European  transport  network
COM(2003)564, 1 October 2003.
This initiative is part of the Road Safety Action Programme launched by the Commission in
2003,  which  encompasses  three  areas:  the  behaviour  of  road  users,  vehicle  safety  and  road
infrastructures.
COM(2002)769 of 30 December 2002.
Green Paper on services of general interest (COM(2003)270, 21 May 2003).
The  Green  Paper  clarifies  the  concept  of  general  interest  services,  distinguishing  between
services  of  general  economic  interest  provided  by  large  network  industries  (progressively
liberalised  and  subject  to  internal  market  rules);  other  services  of  general  economic  interest
such as waste collection and broadcasting (under sectoral rules that are partially harmonised);
and non-economic services and services without effect on trade (under national rules).

19

 
                                                
which  ended  on  15  September  2003.  The  questionnaire  submitted  to  the  public
indicated how difficult the application of the principle of subsidiarity can be when it
touches on very different political and administrative cultures63.

b)

When subsidiarity calls for Community action to be stopped

If  subsidiarity  allows  Community  action  to  be  expanded  where  circumstances  so
require,  it  also  demands  action  to  be  restricted  or  discontinued  when  it  is  no  longer
justified. The Commission reckoned that such ‘contraction’ should occur with regard
to pre-packaging rules.

In  the  1970s,  the  Community  set  mandatory  or  optional  pre-packaging  sizes  for  a
number  of  products,  in  order  to  enhance  consumer  protection  and  market
transparency, as well as  eliminating trade barriers.  As  part  of  the  SLIM-IV  exercise
(Simpler  Legislation for the Internal Market), the Commission undertook  a  series  of
analyses, studies and public consultations with stakeholders designed to evaluate the
existing  system  and  desirability  of  deregulation  in  this  domain.  Different  policy
alternatives  (free  sizes  or  fixed  sizes)  have  been  assessed.  Overall,  free  sizes  and
voluntary  standardisation  appear  to  score  better  than  fixed  sizes,  except  for  certain
sectors for which the impacts are still subject of assessment64.

In general, the objectives of the current pre-packaging legislation are already covered
by existing directives (consumers are  protected  by  unit  pricing  and  the  environment
by the Pre-packaging Waste directive). Should the ongoing impact assessments justify
legislation on fixed sizes in certain sectors, the Commission will take this into account
in its proposal on pre-packaging, which is scheduled for 200465.

c)

When proportionality calls for broader association of the Member States

According to the proportionality principle, the Union must use suitable means that do
not  go  beyond  what  is  necessary.  It  led  the  Commission  to  propose  a  number  of
changes  aimed  at  decentralising  responsibilities,  including  in  areas  under  the
exclusive  competence  of  the  Union.  This  is  illustrated  by  recent  reforms  in
competition policy.

Regulation  No1/200366  concerns  the  implementation  of  two  fundamental  rules
the  prohibition  of  agreements  between
underlying  EU  competition  policy: 

63

64

65

66

Among  other  questions,  the  Commission  asked:  Should  the  development  of  high-quality
services  of  general  interest  be  included  in  the  objectives  of  the  Community?  Should  the
Community be given additional legal powers in the area of services of general economic and
non-economic interest? Is there a need for clarifying how responsibilities are shared between
the Community level and administrations in the Member States? Are there services (other than
the  large  network  industries)  for  which  a  Community  regulatory  framework  should  be
established?  Is  a  general  Community  framework  for  services  of  general  interest  desirable?
What would be its added value compared to existing sectoral legislation? Which sectors and
which issues and rights should be covered? Which instrument should be used (e.g. directive,
regulation, recommendation, communication, guidelines, inter-institutional agreement)? What
has been the impact of sector-specific regulation so far? Has it led to any incoherence?
Wine, spirits, coffee, sugar, salt, flour, metal cans and aerosols.
Review of Directive 75/106/EEC Annex 3 and Directive 80/232/EEC.
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules
on competition laid down in Articles 81 and 82 of the Treaty – OJ L 1, 4 January 2003, p.1.

20

 
                                                
undertakings  which  “have  as  their  object  or  effect  the  prevention,  restriction  or
distortion  of  competition  within  the  common  market”  (Article  81  TEC)  and  the
prohibition  of  abuse  of  dominant  positions  (Article  82  TEC).  It  has  increased
substantially responsibilities given to national authorities

The previous authorisation system, established by a Regulation adopted in 1962, was
highly  centralised  for  all  restrictive  agreements  requiring  exemption.  While  the
Commission, national courts and national competition authorities could all apply the
prohibition  rule  of  Article  81,  the  power  to  apply  exemptions,  based  on  the  prior
notification  of  restrictive  agreements  and  practices,  was  granted  exclusively  to  the
Commission.  Within  the  changed  circumstances  of  a  much  larger  Union,  where  the
competition  culture  has  much  evolved  during  the  past  40  years  and  where,  in
particular,  national  competition  laws  have  been  enacted  and  national  competition
authorities set up, there was an urgent need to modernise the existing rules in line with
the dynamic application of the subsidiarity principle.

Following  its  1999  White  Paper67,  the  Commission  proposed  in  2000  a  new
decentralised system allowing for implementation of the competition rules by both the
Commission  and  the  competition  authorities  and  courts  of  the  Member  State,  while
preserving  the  Commission's  specific  implementing  role68.  In  an  attempt  to  make
better use of the Commission resources, it is no longer necessary to notify agreements
between  undertakings  to  benefit  from  the  application  of  Article  81(3)  TEC.  This
means  that  agreements  fulfilling  the  conditions  mentioned  in  that  article  are
considered  to  be  lawful.  The  system  also  reinforces  the  capacity  of  Member  States’
authorities  to  apply  Community  law  effectively  at  national  level.  Horizontal
cooperation  mechanisms  indeed  empower  national  competition  authorities  to
exchange  confidential  information  and  assist  each  other  as  regards  fact-finding.
Insofar  as  the  Commission  remains  the  only  authority  that  can  act  throughout  the
European Union, it continues to play a central role in the development of Community
competition law and policy, ensuring that it is applied consistently and preventing any
renationalisation of Community competition law.

d)

The simplest form of intervention possible

According  to  the  Protocol  on  subsidiarity  and  proportionality,  “the  form  of
Community  action  shall  be  as  simple  as  possible”.  The  proposals  on  road  safety,
unfair commercial practices and chemicals illustrate the Commission’s reasoning for
selecting the appropriate level of constraint69.

Improving the safety of the movement of passengers and goods is one of the European
Union's key tasks. In its White Paper on European Transport Policy, the Commission

67

68

69

White Paper on Modernisation of the rules implementing Articles 85 and 86 of the EC Treaty,
COM(1999)101, 28 April 1999; Commission Programme No 99/027.
COM(2000)582 of 27 September 2000.
Among  other  exemplary  cases,  see  Proposal  for  a  Directive  implementing  the  principle  of
equal treatment between women and men in the access to and supply of goods and services,
COM(2003)657, 5 November 2003; Proposal for a Directive on Eco-design requirements for
Energy-Using Products, COM(2003)453 of 1 August 2003.

21

 
                                                
proposed  in  2001  that  the  European  Union  should  set  itself  the  ambitious  target  of
halving the number of road deaths by 201070.

As  studies  had  demonstrated  that  speeding,  drink-driving  and  non-use  of  seat  belts
were  the  main  causes  of  accidents  in  all  the  Member  States,  on  one  hand,  and  that
progress  could  be  achieved  simply  by  complying  with  existing  rules,  on  the  other
hand, the Commission focused on ways of improving proper enforcement of national
laws. In line with the conclusions of the EU Road Safety Action Programme of June
2003,  it  proposed  the  definition  of  national  enforcement  plans  embodying  best
enforcement  practices  (compliance  checks,  appropriate  sanctions  for  violations  and
publicity  campaigns)  and  the  establishment  of  a  mechanism  for  cross-border
enforcement  organising  efficient  transfer  of  information  on  violations  between  the
authorities entitled to impose sanctions.

The  Commission  proposed  listing  these  measures  in  a  simple  recommendation71.
Should the data from Member States show that measures taken prove insufficient to
achieve  the  objective  set  in  the  White  Paper,  the  recommendation  stipulates  that
measures of a more binding nature would then be proposed.

The  issue  of  unfair  commercial  practices  by  businesses  against  consumers
exemplifies the possible use of alternative methods of regulatory instruments. Unfair
practices pose a problem for the proper functioning of the internal market (distortion
of  competition)  arising  from  fragmented  regulation  and  a  lack  of  consumer
confidence.

In  its  Extended  Impact  Assessment,  the  Commission  looked  at  a  range  of  possible
approaches and the trade-offs involved72. On that basis, it concluded that a framework
directive73, allowing a mix of traditional legislation and co-regulation, would suffice
to reach the objectives of the Union regarding consumers and the internal market. Its
proposal  for  a  framework  directive  recognises  the  possibility  for  groups  or
associations to establish voluntary codes of conduct in pursuit of the objectives of the
directive.  .  A  breach  of  a  code  commitment  will  nevertheless  only  be  considered
unfair under very precise conditions (for instance, the misleading representation of a
product  would  have  to  be  such  that  it  materially  distorted  the  consumer’s  decision
about the product).

The  proposal  on  chemicals  (REACH)  put  forward  on  29  October  2003  is  a  case
where,  in  the  view  of  the  Commission,  there  is  no  other  option  but  to  go  for  a
regulation  or,  in  other  words,  where  the  objective  could  not  be  achieved  efficiently
through any lighter instrument.

The need for major reform in the area of chemicals arose from widespread consensus
that  existing  legislation  was  no  longer  suitable  for  responding  efficiently  and
adequately to public concern about the potential impact of chemicals on health and the
environment.  Particular  problems  include  insufficient  information  on  chemicals  first

70

71

72

73

White  Paper  on  European  transport  policy  for  2010:  time  to  decide  (COM(2001)370  of  12
September 2001.
C(2003)3861 of 21 October 2003.
SEC(2003)724, 18 June 2003.
COM(2003)356 of 18 June 2003.

22

 
                                                
marketed  before  1981  (properties,  uses,  risks,  and  risk  reduction  measures);  heavy
burden put on public authorities; as well as the slow and onerous delivering of final
risk  assessments.  To  find  an  appropriate  response  to  the  justified  concerns  of  all
interested stakeholders, the Commission weighed up very carefully the pros and cons
of  various  instruments,  notably  in  terms  of  costs  to  industry  and  administrative
burden74.

The Commission eventually concluded that registration, evaluation, authorisation and
restriction  of  chemicals  should  be  organised  by  one  regulation  (REACH)  and
managed by a European Chemicals Agency75. The choice of the strongest option on
the Union’s legal palette was justified on several grounds. A regulation is the best way
to  prevent  distortion  of  competition,  which  is  crucial  because  of  the  economic
implications of the action envisaged. Moreover, its legislative follow-up by Member
States and its monitoring by the Commission are relatively simple compared to what a
directive would require, particularly since the Union will soon comprise 25 Member
States.  Finally,  the  use  of  legislation  in  this  area  is  justified  by  the  technical
complexity  –  all  the  more  so  when  potentially  hazardous  products  are  concerned.
There was therefore no room here for alternative, more flexible, instruments such as
co-regulation or self-regulation.

e)

Respecting well established national arrangements

Compliance with the subsidiarity principle requires that “while respecting Community
law,  care  should  be  taken  to  respect  well  established  national  arrangements”.  The
proposal on the sensitive issue of human embryonic stem cell research shows how
the Commission applies that requirement76.

The  6th  Framework  Programme  for  R&D,  adopted  by  the  Council  of  Ministers  and
the  European  Parliament  in  2002,  allows  for  the  funding  of  human  embryonic  stem
cell research in relation to the fight against major diseases. The need for Community
action was clearly established at the time. The proposal of the Commission aims to set
strict  ethical  rules  for  funding  research  projects  involving  the  procurement  of  stem
cells from human supernumerary embryos77. With this proposal the Union can make a
responsible contribution to advancing this science for the benefit of patients across the
world, while at the same time ensuring  that such  research takes place  within a clear
ethical framework.  Collaborative research at Community level  avoids  duplication  of
research  and  thus  helps  to  reduce  the  use  of  human  supernumerary  embryos  for  the
derivation  of  stem  cell  lines.  In  addition,  Community  funds  stimulate  exchanges  of
results and expertise among research teams from different Member States.

74

75

76

77

The  starting  point  of  the  discussion  was  the  White  Paper  on  the  Strategy  for  a  Future
Chemicals  Policy  (COM(2001)88),  published  by  the  Commission  in  February  2001.
Subsequently  the  proposed  measures  were  subjected  to  extensive  consultation  with
stakeholders in the industry, civil society and NGOs, Member States and Institutions, as well
as to an Ex-IA.
COM(2003)644 of 29 October 2003.
Other exemplary cases include the proposal on the establishment of a regime of local border
traffic  at  the  external  land  borders  of  the  Member  States  (COM(2003)502,  14  September
2003).
COM(2003)390 of 9 July 2003.

23

 
                                                
This  being  said,  the  Union  also  had  to  take  into  account  the  great  diversity  among
Member States concerning the ethical acceptability of such research, some forbidding
it  altogether.  The  proposal  of  the  Commission  therefore  stipulates  that  no  research
involving the use of human embryos or human embryonic stem cells, of any type, will
be supported by Community funding to a legal entity established in a country where
such research is forbidden. Participants in research projects must conform to current
legislation, regulations and ethical rules in countries where the research will be carried
out.

3.3. 

Application of the principles in the legislative process

On  the  whole,  the  European  Parliament  and  the  Council  introduced  relatively  few
amendments  referring  to  subsidiarity  and  proportionality.  When  the  views  of  the
Parliament  and  the  Commission  diverge,  the  majority  of  Parliament’s  amendments
were calling for broader and more intensive action on behalf of the Union (cf. merger
regulation). The Parliament also found on several occasions that the Union needed to
opt for more constraining instruments (cf. the case of pedestrian protection). In other
cases however the Parliament asked the scope of the action envisaged to be narrowed
down and/or called for the adoption of a lighter form of intervention (cf. oil and gas
package).

As the representative of the Member States and guarantor of their powers, the Council
takes particular care to ensure that the legislation of the Union strictly complies with
the principles  of  subsidiarity and proportionality. Mostly  its interpretation  was  more
restrictive  than  the  Commission’s  interpretation  (cf.  criminal  justice).  Occasionally
the Council found however that the Union could and should act more stringently.

More  often  than  not,  the  inter-institutional  dialogue  helped  to  come  to  a  balanced
interpretation of the principles, either because the Commission recognised the validity
of a number  of  arguments  presented  by  the  Legislator  or  because  the  Legislator  did
not insist on all its amendments.

a)

Limiting the scope and intensity of proposed action

The proposal for safeguarding security of natural gas supply offers a good example
of a debate where the Parliament found that the proposed action was too intrusive and
where  the  Commission  stuck  to  its  reasoning  on  many  points,  claiming  that  the
proposed action was necessary to meet the objectives of the Treaty .

In  2002  the  Commission  proposed  an  “oil  and  gas  stocks”  package,  made  of  four
directives and aimed at ensuring security of supply with a view to the completion of
the  internal  market  in  energy78.  The  proposal  on  the  security  of  gas  supply,  among
other things, provides for minimum security supply standards, the clarification of the
role of the different market players and a solidarity mechanism in the event of major
supply problems.

In its opinion delivered on first reading on 23 September 2003, the Parliament tabled
six  amendments  referring  to  subsidiarity,  which  were  partially  rejected  by  the

78

COM(2002)488 of 11 September 2002.

24

 
                                                
Commission79.  The  institutions  disagreed  on  the  precise  scope  of  the  action
(subsidiarity).  For  the  Commission,  the  question  should  be  viewed  in  the  wider
context  of  market  liberalisation  and  competition  (the  directive  aims  at  ensuring  the
proper  functioning  of  the  EU  internal  market  for  gas  by  safeguarding  security  of
supply).  Security  measures  have  to  be  compatible  with  the  requirements  of  a
competitive single market. Standards have therefore to be set. For the Parliament this
approach creates a confusion between different subjects and leads to an unacceptable
“hard and  fast EU catalogue of objectives”  for standards for security of supply. The
Commission rejected this argument.

Agreement  was  however  found  regarding  the  specific  targets  to  be  written  into  the
directive. Article 4 of the proposed directive defines specifically the number of supply
days Member States  shall  ensure  to  “non-interruptible customers”, with reference  to
average  weather  conditions,  extremely  cold  temperatures  or  cold  winters  occurring
statistically every fifty years. The Parliament suggested replacing all specifications by
the obligation of Member States to ensure that security of supply can be maintained to
“vulnerable customers in the light of their national circumstances”. The Commission
recognised the validity of the argument and declared itself ready to revise its proposal
accordingly.

Not  surprisingly  perhaps,  the  most  restrictive  interpretation  of  subsidiarity  and
proportionality  was  to  be  found  in  relation  to  new  areas  of  competence  close  to  the
hard  core  of  national  sovereignty.  Criminal  Justice  is  among  those80.  One  of  the
major objectives of the Union is to create an Area of Freedom, Security and Justice. In
that perspective, full application of the principle of mutual recognition in the domain
of  criminal  justice  and  in  particular  with  regard  to  the  final  decisions  in  criminal
matters is particularly important (owing to the number of transnational cases).

Some  action  was  obviously  needed  to  reach  that  objective.  Distrust  among  judicial
authorities  is  indeed  relatively  high  due  to  discrepancies  in  the  level  of  procedural
safeguards  provided  in  the  Member  States81.  Because  of  the  high  sensitivity  of
criminal  justice,  the  Commission  paid  particular  attention  to  subsidiarity  and
proportionality  when  preparing  its  proposal  for  action  (intensive  consultation,
publication of a green paper82 and an extended impact assessment).

Different policy options with regard to the introduction of common safeguards were
analysed: no policy change; a wide-ranging proposal; and a proposal limited to ‘basic’
safeguards in the first instance, with a commitment to cover the other areas later on.
The  last  option  emerged  as  the  best  approach.  Various  instruments  were  then
reviewed:  common  position, convention  and framework  decision  foreseen  in  Article

79

80

81

82

Commission’s Communication of 17 October 2003 SP(2003)3410/2.
For another exemplary case on divergent  views  held  by  the  Commission  and  some  Member
States, see Proposal for a Regulation on  persistent  organic  pollutants,  COM(2003)333  of  12
June 2003.
The main problems include: access to legal  assistance  and  representation  both  before  and  at
trial; access to interpreting and translation;  notifying suspects and defendants of their rights;
proper  protection  for  especially  vulnerable  groups;  and  consular  assistance  to  foreign
detainees.
Green  Paper  from  the  Commission,  Procedural  Safeguards  for  Suspects  and  Defendants  in
Criminal Proceedings throughout the European Union, COM(2003)75 of 19.02.2003.

25

 
                                                
34  TEU.  A  framework  decision  appeared  to  be  the  most  adequate  instrument  for
achieving a concrete result in the shortest possible time, while being consistent with
the Tampere Conclusions. Among other advantages were the possible recourse to the
European  Court  of  Justice,  the  relatively  simple  implementation  procedure  and  the
possibility  for  the  Commission  to  retain  a  role  in  supervising  and  monitoring
implementation in national legislation.

On the basis of those findings, the Commission concluded that a framework decision
setting  minimal  standards  of  procedural  safeguards  for  suspects  and  defendants  in
criminal proceedings throughout the EU was a precondition to mutual recognition.

While  the  European  Parliament  reacted  positively  to  the  proposal83,  some  Member
States  took  the  opposite  stance,  challenging  the  need  for  such  a  measure.  They
consider  that  the  organisation  of  the  criminal  justice  system  remains  a  matter  of
national sovereignty and that the European Convention on Human Rights is sufficient
as  far  as  “common  minimum  standards”  are  concerned.  It  was  also  suggested  that
setting  common  minimum  standards  at  EU  level  might  lead  to  a  lowering  in
standards, as some countries might take this opportunity to downgrade their national
legislation.

b)

Asking for broader and more intensive actions

Union  intervention  in  favour  of  pedestrian  protection  exemplifies  situations  where
the  Parliament  argued  in  favour  of  stronger  means  of  action84.  Owing  to  the  large
number of pedestrian and cyclist victims of road accidents, the Commission decided
in 2001 to take steps to improve their protection through the gradual introduction of
safer designs in frontal structures of passenger  cars. The Commission obtained clear
commitments  from  European,  Japanese  and  Korean  automobile  manufacturers  that
they would modify vehicle front parts in order to limit injuries to pedestrians in case
of  collision.  In  July  2001,  the  Commission  presented  these  commitments  to  the
Council and  the Parliament  and deferred to them  the  decision  whether  to  accept  the
commitments or to propose legislation based on the latter’s contents85.

On  13  June  2002,  the  European  Parliament  took  the  view  that  the  Union  could  not
abandon its legislative powers to third parties when the protection of citizens was at
stake. The voluntary agreement signed by the car industry was also considered to be
inappropriate for other  reasons.  Since  the industry commitments mainly concern  the
construction of  passenger cars which  are  covered  by  EC  type-approval  system,  they
had to become part of this system. Moreover harmonised rules are  necessary  in  this
area  not  only  to  ensure  the  free  movement  of  goods  but  also  to  guarantee  fair
competition  between  manufacturers,  by  preventing  the  marketing  of  sub-standard
vehicles. Consequently the European Parliament  asked the  Commission to  introduce

83

84

85

On  21  October  2003,  its  Committee  on  Citizens'  Freedoms  and  Rights,  Justice  and  Home
Affairs  fully  supported  the  idea  of  a  framework  decision.  MEPs  made  a  number  of
recommendations  aimed  at  fleshing  out  the  Commission's  proposal,  some  of  which  the
Commission  considered  in  contravention  with  the  subsidiarity  principle  (for  example  the
recommendation relating to conditions of prisons).
Among other exemplary cases, see Proposal for Regulation of the European Parliament and of
the Council on official feed and food controls, COM(2003)52, 5 February 2003.
COM(2001)389, 11 July 2001.

26

 
                                                
legislative  measures  with  regard  to  the  tests  for  frontal  parts  of  cars86.  The
Commission  proposed  a  framework  directive,  due  to  be  supplemented  with  a
Commission  directive  setting  out  the  detailed  test  requirements87.  The  Directive  has
been adopted on 4 November 2003.

The proposal for amending the Merger regulation offers a good example of a debate
where the  Parliament found that the proposed action was  giving  too  much  power  to
the  national  level  and  where  the  Commission  stuck  to  its  reasoning  on  most  points
because  the  Parliament’s  amendments  would  create  an  imbalance  in  favour  of  the
Union.

Since 1990, merger transactions are monitored through  a ‘one-stop shop’ system for
the entire European Union. The Merger Regulation88 removes the need for companies
to seek clearance from several national authorities for mergers having a “Community
dimension” and ensures that all such mergers receive equal treatment.

Based  on  the  experience  gained  over  the  last  12  years,  the  Commission  decided  to
recast the Merger Regulation and presented at the end of 2002 a Proposal89 aimed at
optimising  the  allocation  of  merger  cases  between  the  Commission  and  national
competition  authorities.  In  line  with  the  principle  of  subsidiarity,  the  Commission
considered  that  this  objective  could  be  achieved  most  efficiently  through  a
streamlined  system  of  referrals,  without  modifying  the  current  turnover  thresholds
criteria for allocation of merger cases. The new system therefore is to be based on an
enhanced  recourse  to  the  Merger  Regulation's  referral  mechanisms,  including  their
improvement  and  use  at  a  pre-notification  stage.  Given  their  superior  knowledge  of
the  circumstances  of  the  case,  the  notifying  parties  would  get  an  exclusive  right  of
initiative at this stage of the procedure. In other words, before notifying the merger at
national  levels,  undertakings  wishing  to  merge  would  have  the  possibility  of
requesting a referral of the case to the European Commission.

The European Parliament, in the opinion it delivered on 9 October 2003, suggested a
number  of  amendments  mainly  designed  to  set  stricter  requirements  for  referrals  of
Community dimension mergers to Member States, while at the same time simplifying
the  mechanism  of  referrals  of  national  mergers  having  cross-border  effects  to  the
Commission.

The  Commission  has  rejected  these  amendments  because  the  overall  system  of  re-
allocation  of  cases  between  the  Community  and  the  Member  States  proposed  by
Parliament would have been too unbalanced in favour of referrals to the Commission,
and thus appeared to be detrimental to the subsidiarity principle. The Council’s final
decision is scheduled for the end of 2003.

86

87

88

89

See Council’s conclusion at the 2389th meeting of 26 November 2001, European Parliament’s
Resolution of 13 June 2002.
COM(2003)67 of 19 February 2003.
Council Regulation (EEC) 4064/89 of 21 December 1989, OJ L 395, 30 December 1989.
Proposal  for  a  Council  Regulation  on  the  control  of  concentrations  between  undertakings
COM(2002)711 of 11 December 2002.

27

 
                                                
4. 

CONCLUSIONS

Better lawmaking in 2003

Much  has  been  done  in  the  Union  to  improve  the  quality  and  accessibility  of
legislation.  In  late  2002  and  early  2003,  the  Commission’s  efforts  were  mainly
devoted  to  detailing  its  Action  Plan  “Simplifying  and  improving  the  regulatory
environment”,  while  defining  in  parallel  with  the  European  Parliament  and  the
Council an inter-institutional agreement laying the foundations of an overall strategy
for better  lawmaking.  Both  processes  have  been  successfully  completed.  The  Union
now has a global policy for ensuring a clear, up-to-date and effective body of law for
the ultimate benefit of citizens and operators.

However, 2003 and 2004 are transitional years in the implementation of most actions
and the present report can therefore only take stock of first experiences. Globally, this
initial phase of implementation  has not revealed any  need  for  a major  review of the
Commission’s approach, and this view appears to be shared by the other institutions,
Member States and stakeholders.

(cid:1)  The  key  Commission  initiatives  on  impact  assessment,  collection  and  use  of
expertise  and  public  consultation  have  shown  satisfactory  progress.  The
Commission welcomes the quality of  impact assessments  carried  out  in  2003  but
also  notes  the  difficulties  encountered  in  ensuring  reliable  programming  and
execution of impact assessments. Standards regarding publication of consultations
on a single access point, time limits for responses and acknowledgement of results
have  been  properly  applied  in  almost  all  cases.  Despite  the  additional  work
demanded  by  these  new  obligations,  the  number  of  consultations  increased.
However, the Commission has identified certain weaknesses in the implementation
of these actions that will require corrective action.

(cid:1)  Regarding  the  choice  of  instruments  to  pursue  Treaty  objectives  and  implement
Community  policies,  the  Commission  is  satisfied  that  the  Inter-institutional
Agreement on Better Lawmaking sets a clear framework for co-regulation and self-
regulation. It hopes that this will facilitate their future use. Besides the Commission
looks forward to rapid progress on the development of a framework for regulatory
agencies and development of tri-partite contracts.

(cid:1)  Strict  monitoring  of  the  ambitious  framework  action  “updating  and  simplifying
the  Community  acquis”  has  revealed  mixed  but  not  unsatisfactory  results.
Completion  of  the  consolidation  programme  and  the  progressive  change  of
regulatory  culture  in  the  Commission  and  beyond  are  major  achievements.
Significant improvements in accessibility to Community legislation are underway,
but weak points have been detected in implementing the actions aimed at reducing
the  volume  of  Community  legislation  (codification  and  elimination  of  outdated
legislation).

(cid:1)  As far  as  reinforcing checks  on the transposition of Community legislation is
concerned,  the  Commission  has  implemented  several  of  the  planned  actions  to

28

 
improve  transposition.  It  is  preparing  new  procedures  aimed  at  speeding  up  the
review of complaints.

(cid:1)  For  many  better  regulation  initiatives,  the  Commission  also  notes  significant
resource  and  time  implications  –  in  particular  for  impact  assessments  and  the
new standards for public consultations and use of expertise.

(cid:1)  The  Commission  welcomes  that  the  other  institutions  acknowledge  better
lawmaking as a shared responsibility and that an inter-institutional agreement has
been concluded on actions requiring coordinated or joint action. Focus should now
turn  to  implementation  of  this  agreement.  The  Commission  also  welcomes  the
efforts  deployed  by  Member  States  in  response  to  the  recommendations  of  the
Commission and of the Mandelkern Group, although the progress is variable.

(cid:1)  Finally,  the  Commission  acknowledges  the  need  to  develop  indicators  and  other
means  to  ensure  that  sufficient  evidence  is  available  to  ensure  continued
monitoring.

Application of subsidiarity and proportionality in 2003

On the whole, the application of the principles of subsidiarity and proportionality has
been  satisfactory  in  2003.  The  small  number  of  legal  actions  before  the  Court  of
Justice  invoking  the  violation  of  these  principles  and  the  absence  of  judgments
condemning the Union on that ground tend to confirm this assessment. The fact that,
even though the Union’s obligations have considerably increased, there were less than
400 legislative  proposals  launched in 2003 (half  the  1990  figure)  is  another  indirect
indication of strict application  of  the principles. The review of  the  contents of  these
proposals also supports this appraisal: regulations and detailed measures were by far
the  exception;  strong  arguments  in  favour  of  such  options  were  systematically
advanced.

The quality of the inter-institutional dialogue in 2003 was good. This dialogue helped
to find a balanced solution in most cases. The Commission has often recognised the
merits of the arguments put forward by the European Parliament and the Council, and
amended its proposals accordingly. However, on several occasions, the  Commission
felt that the amendments suggested by the Legislator were increasing the complexity
and  did  not  therefore  take  the  principles  of  subsidiarity  and  proportionality
sufficiently into account. The Commission intends to remain vigilant throughout the
legislative process, including when the European Parliament and the Council reach an
agreement during the conciliation stage.

Subsidiarity,  in  essence,  is  a  dynamic  concept.  It  allows  Community  action  to  be
expanded  where  circumstances  so  require,  and  conversely,  to  be  restricted  or
discontinued where it is no longer justified. This year provided examples of expansion
and  contraction.  But  as  the  Commission  stated  in  its  1997  Work  Programme,
“subsidiarity and proportionality must not be used as pretexts to call into question all
that  the  Community  has  already  achieved  or  to  return  to  the  intergovernmental
method”. Democracy and efficiency would both lose.

Vigilance is needed on all sides. The adoption of the framework for subsidiarity and
proportionality  designed  by  the  European  Convention  would  have  the  advantage  of

29

 
increasing  that  vigilance  by  involving  National  Parliaments,  but  without  slowing
down dramatically the decision-making mechanism of the Union.

30

 
Annex 1: Legislative activity in 2003

Aggregated figures for 2003 confirm the  trend observed  since the completion  of the
internal market: the volume of annual legislative activity has significantly decreased,
staying for the second year in a row clearly below 400 proposals90.

Sector-wise,  one  third  of  the  legislative  activity  in  2003  was  geared  towards  the
external  relations  of  the  Union  (mainly  its  common  commercial  policy)  and  its
enlargement.  Next  to  these  sectors,  the  most  active  areas  were  in  descending  order:
agriculture and fisheries, health, industry, transport and energy, and environment. The
output at these levels is in line with previous years’ records91.

Number of Commission proposals 1990-2003
*situation at 03/11/03 (source for 1990/2001: Eur- Lex; for 2002/03: Pre-Lex)

2002

2000

1998

1996

1994

1992

1990

371

316

405

490
493

569

549

528

622

596

667

702
704

787

0

100

200

300

400

500

600

700

800

900

Number of proposals for regulations, directives, decisions and recommendations

90

91

The figure for 2003 covers proposals adopted between 1 January and 3 November.
For  an  evolution  of  that  pattern,  see  the  previous  annual  reports:  COM(1993)  545  of  24
November 1993; COM(1994) 533 of 25 November 1994; COM(1995) 580  of  20  November
1995;  ESC(1996)  7  of  27  November  1996;  COM(1997)  626  of  26  November  1997;
COM(1998) 715 of 1 December 1998; COM (1999) 562  of  3  November  1999;  COM(2000)
772 of 30 November 2000; COM(2001) 728 of 7 December 2001; and COM(2002) 715 of 11
December 2002.

31

 
                                                
Annex 2: Public consultation in 2003

Public  consultation  is  an  indispensable  tool  for  improving  the  quality  of  policy
proposals  and  policy  implementation  (the  risk  of  misunderstanding  and  hostile
reaction  –  i.e.  poor  policy  landing  –  decreases  with  early  involvement  of  interested
parties).  It  allows  better  identification  of  the  need  for  an  action,  of  the  expectations
and of the types of action to be taken. All this is particularly important for policy areas
where  the  Commission  has  large  powers,  which  are  still  in  a  development  phase  or
which require constant legislative action.

The  Commission  has  a  long  tradition  of  extensive  consultation92  through  various
channels:  Green  Papers,  White  Papers,  communications,  forums  (such  as  the
European  Energy  and  Transport  Forum),  workshops  and  consultations  on  the
Internet93.  The  Commission  is  also  engaged  in  various  forms  of  institutionalised
dialogue  with  interested  parties  in  specific  domains,  the  most  developed  being  the
social dialogue.

In  2003,  the  Commission  produced  5  Green  Papers  and  142  Communications.  It
also  published  73  reports  and  organised  60  Internet  consultations  through  “Your
Voice In Europe”, the Commission’ single access point for consultation94. In addition,
the Commission is working towards the creation of a  European Business Test Panel
(EBTP)  which  will  be  used  to  sound  out  business  opinion  on  new  legislative
initiatives
current 
of 
proposals, 
(http://europa.eu.int/yourvoice/ebtp).

application 

policy 

rules 

and 

the 

These figures show how serious the Commission is about providing full information
about its activities and policy reflection and about consulting.  The number of  Green
Papers and Communications in particular has increased significantly95. Figures for the
last 10 years are equally eloquent: all sectors combined, the Commission released 43
Green  Papers,  19  White  Papers,  more  than  1350  communications  and  nearly  1500
reports on Community actions.

92

93

94

95

‘Consultation’ refers to the processes used by the Commission during policy shaping phase in
order to trigger input from outside interested parties before taking a decision.
See in particular the Interactive Policy Making initiative (http://europa.eu.int/yourvoice/ipm).
The IMP consists of two Internet-based instruments collecting spontaneous information from
citizens,  consumers  and  businesses  about  their  daily  problems  relating  to  different  EU
policies.  In  February  2003,  the  Commission-wide  Feedback  Mechanism  was  launched.
Thousands  of  cases  are  collected  annually  and  several  Directorate  Generals  have  already
started to use it as an input for policy making.
See http://europa.eu.int/yourvoice/consultations/index_en.htm.
Communications adopted between 1 January – 3 November: 142 in 2003; 96 in 2002; 125 in
2001; 112 in 2000; and 77 in 1999.

32

 
                                                
Consultation documents and reports 1993-2003

Situation at 3/11/03 (Source: 1990/2001: Eur- Lex; 2002/2003: Pre-Lex)

0
0

2003

2001

1999

1997

1995

1993

5
2

7
4
2
2
6
1
9

2
3

4
3
2
1
2
2
3
1
1

0

50

73

81

102

103

93

100

142

139

157

175

133

132

133

120

122
123

135

131

148

166

154
155

164

Reports
Communications
Green papers
White papers

150

200

The sectoral pattern of consultation for 2003 is globally in line with previous years’
patterns.  The  largest  number  of  consultations  concerned,  in  descending  order,
agriculture,  employment  and  social  policy,  external  relations,  industry,  justice  and
home  affairs,  transport  and  energy,  environment,  economic  policy  and  information
society.

By  contrast,  the  Commission’s  implementation  of  public  consultations  changed
substantially  at  the  procedural  level  in  2003.  In  accordance  with  the  commitments
made  in  the  White  Paper  on  European  Governance,  the  Commission  has  introduced
minimum  standards  for  its  public  consultation  which  apply  to  major  policy
initiatives96.  As  a  first  step,  these  standards  were  applied  to  all  proposals  requiring
extended impact assessment.

The  main  innovations  are:  the  definition  of  a  minimum  consultation  period97,  the
obligation  to  report  on  the  results,  the  obligation  to  give  appropriate  feedback  to
comments  received  and  the  establishment  of  a  single  access  point  for  public
consultations.

Based  on  a  review  of  the  extended  impact  assessments  completed  by  3  November
2003, the Commission observes that minimum standards regarding publication on the
single  access  point,  time  limits  for  responses  and  report  on  the  results  have  been
properly applied in almost all cases. The time given to respondents was often above
minimum standard. The choice of targeted  groups  was  only  challenged  on  very  few
occasions.  Special  efforts  however  still  need  to  be  made  to  improve  feedback  to
contributors.  In  most  cases,  too  little  was  said  on  how  comments  were  taken  into
account  in  the  proposal  or  why  they  were  discarded.  Responses  from  services  also
indicate that the new standards were applied beyond consultations linked to Ex-IA. In

96

97

Communication  from  the  Commission  ‘Towards  a  reinforced  culture  of  consultation  and
dialogue – General principles and minimum standards for consultation of interested parties by
the  Commission’  COM(2002)704,  11  December  2002.  These  new  standards  were  adopted
after  wide  consultation  during  which  the  Commission  applied  by  anticipation  the  best
practices  it  was  proposing.  Before  adopting  this  Communication,  the  Commission  indeed
sought 
(see
COM(2002)277, 5 June 2002); reported on the results and gave a feedback on the comments
received.
At least 8 weeks for reception of responses to written consultation or 20 working days’ notice
for meetings.

interest  groups,  associations  and  operators 

the  opinion  of  citizens, 

33

 
                                                
a limited  number  of  cases,  delay in  the  adoption  of  a  proposal  was  attributed  to  the
application  of  the  standards.  Causal  links  between  the  introduction  of  the  new
standards and the number of contributions received or their representativeness  could
not be established98.

98

The  quantity  of  contributions  varied  widely.  From  30  for  consultation  on  highly  technical
topics to more than 6400 for proposals on environmental and human health issues such as the
regulation  concerning  the  Registration,  Evaluation,  Authorisation  and  Restrictions  of
Chemicals (REACH).

34

 
                                                
Annex 3: Impact Assessment

In  2002,  the  Commission  adopted  a  new  method  of  assessment  for  all  major
Commission initiatives, that takes into account not only the economic impact, but also
the  social  and  environmental  impact  of  the  proposal  concerned99.  It  consists  of  two
main steps: a Preliminary Impact Assessment and, for a selected number of significant
proposals,  a  more  in-depth  analysis  called  Extended  Impact  Assessment  (Ex-IA).
Used  alongside  formal  consultations,  it  provides  the  European  Parliament  and  the
Council with a solid basis for legislative discussions. Ultimately it should increase the
quality and coherence of EU policies.

The approach chosen was to introduce this new procedure gradually, starting in 2003.
For  the  first  year,  the  Commission  planned  to  apply  the  procedure  to  17%  of  its
priority proposals (cf. List 1 of the Commission’s Work and Legislative Programme
for 2004). In 2004, approximately half of the Commission’s major initiatives will be
drafted on the basis of an Ex-IA100.

Quantitatively speaking, the Commission’s estimate is that approximately 50 % of the
Ex-IAs  initially  planned  will  be  completed  by  the  end  of  December  2003101.  This
relatively  low  implementation  rate  seems  to  be  part  of  a  general  problem  linked  to
optimistic planning, lack of resources and political difficulties102. In a limited number
of cases however, Commission services reported that Ex-IA were partly to blame for
delay  in  the  adoption  of  proposals.  An  extended  impact  assessment  is  a  demanding
exercise and services have had to adapt to the new procedure.

Qualitatively speaking, the direct and indirect consequences of the introduction of the
new  procedure  were  largely  positive.  First  of  all,  the  new  procedure  was  rigorously
applied. Directorates-General have adopted a constructive approach, devoting existing
human and  financial  resources  to  this  exercise  as  well  as  co-operating  actively  with
other  Commission  services.  Impact  Assessment  has  in  many  cases  considerably
facilitated  inter-service  co-ordination,  a  fact  acknowledged  for  instance  on  the
chemical  legislation  recently  proposed.  On  the  whole,  Ex-IAs  have  prompted  the
Commission and its services to “think outside the box” and contributed significantly
to identifying more balanced solutions103.

99

100

101

102

103

COM(2002)276, 5 June 2002.
In absolute terms, the difference is less significant (43 Ex-IA planned for 2003 against 46 for
2004). This is linked to the fact that the Commission decided to keep its list of 2004 priorities
limited to 72 proposals.
The  most  important  proposals  based  on  Ex-IA  include:  Legislation  on  the  Kyoto  flexible
instruments, Review of the Sugar regime, Review of the Tobacco regime, Guidelines on the
Trans-European Networks and Legislation on Chemicals (REACH).
By mid-November 2003, the implementation rate of the Commission’s Work plan was indeed
roughly  the  same  for  proposals  based  on  Ex-IA  and  for  proposals  that  did  not  require  full
impact assessment. It should also be noted that many Ex-IA have been postponed only a few
months for adoption at the beginning of 2004.
The formulation of the following proposals, for instance, has been directly influenced by Ex-
IA. In the case of the Legislation on the Kyoto Flexibility mechanism, the impact assessment

35

 
                                                
On  the  basis  of  this  trial  year,  it  appears  that  the  Commission  needs  to  address  a
number of teething problems. First, the capacity of services to evaluate impact beyond
their  policy  field  is  naturally  often  limited.  As  a  consequence,  while  most  Ex-IAs
nominally address all dimensions of sustainable development, detailed analysis tends
to  be  limited  to  one  aspect  only.  Environmental  and  social  levels  are  especially
underdeveloped.  Secondly,  Ex-IAs  should  include  more  thorough  discussion  of  the
principles of subsidiarity and proportionality, in particular of the respective merits of
different  regulatory  approaches.  Third,  analyses  tend  to  focus  on  one  policy  option.
Policy  alternatives  should  be  examined  more  thoroughly..  Fourth,  there  is  so  far
limited  quantification,  let  alone  monetisation  of  the  impacts.  This  affects  the
credibility of some impact assessments. Fifth, effort should be made to rendering Ex-
IAs more accessible to the general public.

In  order  to  address  the  quantitative  and  qualitative  shortcomings,  the  Commission’s
Secretariat-General  with  other  horizontal  services  will  push  forward  a  range  of  new
initiatives.  They  will  continue  to  offer  advice  and  guidance  to  operational  services
responsible  for  undertaking  Ex-IAs,  as  well  as  encourage  services  to  pool  their
assessment  capacity  to  a  larger  extent.  They  will  carry  out  quality  control  of  the
impact  assessments  (ensuring  in  particular  that  they  cover  all  dimensions  in  a
balanced  manner  and  evaluate  systematically  all  viable  policy  options,  in  order  to
prepare  the  ground  for  informed  political  decisions).  Training  on  impact  assessment
will  be  offered  to  up  to  400  Commission  officials.  Furthermore,  officials  will  be
equipped with the “Indicators and Quantitative tool” currently under development by
external contractors working for the Commission. .

helped to find a solution that balanced economic and environmental considerations. In the case
of the Directive on unfair (trading) practices, a new option with fewer costs for business was
introduced after the impact assessment. Also, the REACH proposal on Chemicals was based
on  an  impact  assessment  which  took  account  of  the  costs  to  business  as  balanced  against
environmental and human health objectives.

36

 
                                                                                                                                           
Annex 4: New guidelines on the collection and use of expertise

Proper  collection  and  use  of  expertise  are  both  crucial  and  delicate.  Clearly,  it  is
crucial that policy choices are based and updated on the best available knowledge. But
on  occasions,  the  questions  to  be  addressed,  the  evidence  considered  and  the
interpretations  may  be  highly  controversial.  In  order  to  ensure  credibility,  it  is  then
particularly important, on one hand, to demonstrate that the  expertise  collected  is of
appropriate  quality  and,  on  the  other  hand,  to  be  transparent  on  how  experts  are
identified  and  chosen,  as  well  as  how  results  are  used.  The  collection  and  use  of
expertise  must  not  only  be  credible,  it  must  above  all  be  effective.  Given  that
resources are limited, arrangements have to be in proportion to the task in hand.

Following the commitment made in the White Paper on European Governance and the
Commission’s  Science  and  Society  Action  Plan,  the  Commission  adopted  in
December 2002 a Communication defining principles and guidelines that encapsulate
good practices regarding expertise104. Promoting quality, openness and effectiveness,
these practices apply whenever Commission departments collect and use advice from
external experts.

Implementation of the new guidelines has started at various levels. First, the need for
maximum openness has been taken into account in the definition of the new “standard
explanatory  memorandum”  and  the  framework  for  “extended  impact  assessment”.
Where  the  Commission  has  relied  on  external  expertise  for  the  preparation  of  a
proposal,  the  memorandum  attached  to  the  proposal  must  include  a  short  summary
describing  the  methodology  used,  the  list  of  experts  consulted,  the  advice  received,
how the advice was taken into account and, where appropriate, indicate how to access
the  report(s)  of  the  expert(s).  As  for  extended  impact  assessments,  they  too  must
include precise information on the collection and use of expertise105.

In addition initiatives aimed at widening and systematising the collection of expertise
in specific domains have been taken106. Twelve “advisory groups” have been set up to

104

105

106

Communication  from  the  Commission  on  the  collection  and  use  of  expertise  by  the
Commission, COM(2002)713, 11 December 2002.
See for instance, Tobacco regime (pp. 50-54); Reforming the European Union’s sugar policy
(pp.37-40);  Proposal  amending  Decision  N°  169/96/EC  on  the  trans-European  transport
network  (p.51);  Directive  of  the  EP  and  of  the  Council  amending  Directive  establishing  a
scheme for greenhouse  gas emission allowance trading  within  the  Community,  in  respect  of
the  Kyoto  Protocol’s  project-based  mechanisms  (p.  31);  Communication  on  immigration,
integration and employment (p. 16).
In  2003,  the  European  Food  Safety  Authority  issued  over  100  scientific  opinions  on  animal
health,  animal  welfare  and  plant  health,  task  previously  performed  by  various  scientific
committees of the Commission. A programme has also been launched for improving scientific
and  technical  advice  for  Community  fisheries  management,  among  other  things,  by
strengthening 
institutions
(COM(2003)625, 27 February 2003). Other initiatives having required special use of external
expertise include the “Clean technologies Action Plan” to be presented by DG environment in
December  2003  and  the  proposal  to  recast  the  Council  Regulation  on  the  European
Monitoring Centre on Racism and Xenophobia, COM(2003)483, 5 August 2003.

the  Member  States  and  scientific 

its  cooperation  with 

37

 
                                                
advice the Commission on the various themes of the sixth Framework Programme for
R&D.  Their  work  in  2003  focused  on  the  revision  and  updates  of  the  work
programmes in the run-up to the launch of the next set of calls for proposals. The new
guidelines  have  also  been  applied  in  preparing  the  so-called  “3%  Action  Plan”
launched by the Barcelona European Council in March 2002107. Last but not least, the
Commission  has  made  significant  progress  regarding  “Scientific  Support  for
Policies”,  one  of  the  priorities  of  the  Framework  Programme.  The  SINAPSE  e-
network  (Scientific  INformAtion  for  Policy  Support  in  Europe)  has  been  developed
and  the  pilot  phase  will  be  launched  early  2004.  Open  to  all  scientists,  scientific
organisations and anyone  with  an interest in  science,  this  electronic  network  mainly
pursues  a  triple  ambition:  increasing  dissemination  and  use  of  scientific  advice  by
developing  an electronic library of available scientific opinions and advice issued in
Europe  and  elsewhere;  enabling  the  Commission  to  conduct  informal  scientific
consultation;  and  giving  the  scientific  community  and  other  stakeholders  the
possibility to send early warning  signals to public authorities  Europe-wide and raise
their awareness of scientific issues.

Finally,  insofar  as  implementation  of  the  principles  and  guidelines  is  seen  by  the
Commission  as  an  evolutionary  process,  a  system  for  monitoring  and  review  has
progressively  been  put  in  place.  Directorates-General  have  reported  on  their
experience  in  implementing  the  guidelines  and  inter-departmental  collaboration  has
been established in order to pool experience on the collection and use of expertise.

107

The  aim  of  the  action  plan  is  to  increase  investment  in  research  and  technological
development to 3% of the Union’s GDP by 2010.

38

 
                                                
Annex 5: Updating and simplifying the Community acquis

With the framework action “Updating and simplifying the Community acquis”108
adopted  in  February  2003,  the  Commission  launched  an  ambitious  programme  to
ensure  that  Community  legislation  is  clear,  understandable,  up-to-date  and  user-
friendly. Conceived as the beginning of a long-term process, the programme foresees
an intensive start-up period of 2 years divided into 3 phases: Phase I from February to
September  2003;  Phase  II  from  October  2003  to  March  2004;  and  Phase  III  from
April to December 2004. The Commission presented a first progress report in October
2003109.

The objectives of the programme are to simplify the contents of the acquis, to up-date
it  and  to  reduce  its  volume  (through  consolidation,  codification  and  removal  of
obsolete  legislation)110,  and  to  provide  more  reliable  and  user-friendly  organisation
and presentation of the acquis. The finality of this exercise is not to deregulate but to
replace  past  policy  approaches  with  better-adapted  and  proportionate  regulatory
instruments.

Simplifying  the  acquis  is  clearly  the  biggest  challenge.  Having  defined  priority
indicators111  to  help  identify  opportunities  and  needs  for  simplification,  the
Commission  is  currently  screening  nearly  20  policy  sectors  for  simplification
potential.  Around  170  directives  and  regulations  have  already  been  identified  as
confirmed  or  potential  candidates  for  simplification  and  are  currently  under  active
examination  by  the  Commission112.  By  the  end  of  Phase  I,  the  Commission  had
adopted  18  proposals  for  simplification.  During  Phase  II  (October  2003  to  March
2004),  the  Commission  is  planning  to  adopt  23  additional  proposals  with
simplification implications.

With  regard  to  the  reduction  of  the  volume  of  the  acquis,  June  2003  saw  the
completion of the programme of consolidation113 launched in 1996. More than 2200
families  of  legislative  acts114  have  been  consolidated  and  are  available  on-line  via

108

109

110

111

112

113

114

COM(2003)71, 11 February 2003.
The  first  interim  report  outlines  achievements  during  Phase  I  and  the  work  programme  for
Phase II, see COM(2003)623 and SEC (2003)1085, 24 October 2003.
This  objective  is  in  line  with  the  target  set  in  2001  by  the  President  of  the  Commission  to
reduce the volume of the acquis by 25% before the end of his term in office.
Pursuant  to  the  multiannual  programme  for  enterprise  and  entrepreneurship  adopted  by  the
Council  on  20  December  2000  (OJ  L  333,  29  December  2000,  p.84),  the  Commission  is
planning to conduct a further study to improve the consistency and quality of these indicators.
The Commission has invited Member States and stakeholders in general to screen Community
legislation  and  indicate  where  there  is  a  need  for  simplification.  The  task  force  for  better
regulation, an independent body set up by the British government, has announced its intention
to present proposals in 2004 on areas of European legislation requiring simplification.
Consolidation  consists  of  editorial  assembling,  outside  any  legislative  procedure,  of  the
scattered parts of legislation on a specific issue (in other words, bringing into a single text the
original  act  and  subsequent  amendments).  This  clarification  exercise  does  not  entail  the
adoption of a new instrument and the resulting text therefore has no formal legal effect.
A family is an ensemble of original and related amended legal texts.

39

 
                                                
EUR-Lex. It should be noted that this exercise has been conducted on a multilingual
basis and that, with enlargement, the number of official languages has increased from
11 to 20.

The even more demanding codification115 programme launched in November 2001 is
now at cruising speed and is set, despite significant obstacles, to be completed by the
end  of  2005  as  planned.  During  Phase  I  the  Commission  adopted  7  codified
Commission  acts  and  15  proposals  for  codified  acts  to  be  adopted  by  the  European
Parliament  and  the  Council.  During  Phase  II  the  Commission  plans  to  adopt  or
propose some 150 codifications.

As for updating the acquis, reinforced efforts to remove obsolete legislation through
formal  repeal  or  by  an  additional  instrument  of  “declaration  of  obsolescence”  are
beginning  to  give  concrete  results,  although  delays  have  occurred.  Phase  I  efforts
should result  in the  elimination of 30  obsolete legal acts.  Some  600  more  are  under
consideration and could in part be eliminated during Phase II.

Improvement  of  the  organisation  and  presentation  of  the  acquis  has  been  taken
forward.  Measures  to  offer  more  user-friendly  access  to  Community  law  will  be
enacted  before  the  end  of  2003.  Subsequent  measures  include  presentation  more
focused  on  the  secondary  legislation  actually  in  force  and  generally  applicable  (via
CELEX and EUR-Lex).

In  line  with  its  commitment  to  a  transparent  process,  the  Commission  is  presenting
progress  reports  after  completion  of  each  of  the  above  3  phases,  including  a
scoreboard on progress made with regard to codification, repeals and declarations of
obsolescence.

The results of the first phase of implementation of the framework action are mixed but
not unsatisfactory. Completion of the consolidation programme is a major service for
the  ultimate  benefit  of  citizens  and  operators.  Another  key  achievement  is  the
progressive involvement of different services in efforts to simplify legislation because
it demonstrates  that  a  change  of  regulatory  culture  is  taking  place.  The  weak  points
mainly  concern  the  short  and  medium-term  actions  to  reduce  the  volume  of
Community  legislation  (codification  and  elimination  of  outdated  legislation).
However,  the  Commission  is  satisfied  that  the  process  launched  in  February  2003
appears  to  be  taking  a  firm  foothold  and  should  continue  to  produce  benefits  for
citizens and other users of Community legislation.

115

Codification involves the adoption of a new legal instrument which incorporates and repeals
the  instruments  being  consolidated  (basic  instrument  +  amending  instrument(s))  without
altering their substance. It could also be defined as formal or official consolidation.

40

 
                                                
Annex 6: Quality of drafting

The  1997  Intergovernmental  Conference  annexed  a  declaration  to  the  Amsterdam
Treaty inviting the European Parliament, the Council and the Commission to establish
–  by  common  accord  –  guidelines  for  improving  the  quality  of  the  drafting  of
Community legislation.

On  22  December  1998,  the  three  institutions  involved  in  the  legislative  process
adopted  the  Inter-institutional  Agreement  on  common  guidelines  for  the  quality  of
drafting  of  Community  legislation116.  They  committed  themselves  to  taking  the
following  measures  to  ensure  that  the  guidelines  are  applied:  drawing  up  of  a  Joint
Practical  Guide  for  persons  involved  in  the  drafting  of  legislation;  organisation  of
internal procedures; creation of drafting units; provision of training in legal drafting;
development of information technology tools to assist drafting; collaboration between
the departments responsible for ensuring drafting quality in the European Parliament,
the Council and the Commission; and cooperation with the Member States.

Drawn  up  in  2000,  the  Joint  Practical  Guide  was  edited  for  publication  in  2002.  It
will shortly be made available to the general public on EUR-Lex (the legislative page
of  the  EUROPA  internet  site).  As  for  the  organisation  of  internal  procedures,  the
inter-service  consultation  offers  the  possibility  of  improving  drafting  quality  when
texts are still in early draft form. The legal revisers now make drafting suggestions at
this  stage  which  are  incorporated  in  the  opinion  of  the  Legal  Service  (1100  drafts
covered in 2002 and 1750 in the first 11 months of 2003). The commitment regarding
drafting units have also been met. Commission services with major legislative activity
now have their own legal units that centralise expertise in drafting. All Directorates-
General have legislative co-ordinators whose functions include monitoring the quality
of  the  legislative  proposals  and  draft  legislation  they  produce.  Legal  revisers  have
been  giving  training  in  legal  drafting  since  2001  to  Commission’s  Directorates-
General which are most often involved in the legislative process. The plan for the next
stage is to offer more advanced courses focusing on the actual texts produced by the
departments. Finally the Commission has developed an information technology tool to
harmonise  and  improve  the  basic  presentation  of  legislative  acts  called  LegisWrite.
The tool is being further developed and its use extended.

Besides, collaboration between the Legal Revisers of the three institutions involved in
the  legislative  process  has  been  strengthened.  Further  impetus  to  such  contacts  is
being  given  by  the  need  to  finalise  the  Community  acquis  in  the  languages  of  the
candidate  countries.  Closer  links  are  also  being  established  with  the  relevant
departments of other actors such as the European Central Bank and OPOCE.

Finally  cooperation  with  the  Member  States  has  been  enhanced  by  a  series  of
seminars on legislative quality for Commission and Member States officials involved
in the legislative process.

116

OJ C 73, 17 March 1999, p.1.

41