DRAFT WORKING DOCUMENT ON THE CATEGORIES OF LEGAL ACT OF THE EUROPEAN UNION AND THE RELATIONSHIPS BETWEEN THEM

Rapporteur: Mr Willi ROTHLEY (PSE, D)

SUMMARY: The basic idea behind the call for a hierarchy of Community legal acts is to draw a clear distinction between genuinely legislative measures, which need to be debated fully by Parliament, and other normative acts, which may be adopted by the political executive, answerable to the political authority.

According to M. Rothley, the categories of acts and their relationships should be developed along the general guideline of replacing regulations and directives by law and framework laws, in coherence with the Bourlanges report, adopted b the EP in 1993. (EP, Brussels, 16 december 1994)

According to Declaration No. 16 annexed to the Treaty on European Union, the Intergovernmental Conference will (...) review the classification of Community acts with a view to establishing an appropriate hierarchy between the different categories of act. The aim is not to create yet another pointless bureaucratic hierarchy but to safeguard the democratic legitimacy of fundamental legislative decisions.

Regardless of how the future reform process affects the individual legislative procedures, the democratic legitimacy of the Union's legislation will be guaranteed jointly by the European Parliament and the parliaments of the Member States, the latter exercising democratic control over the acts of the governments meeting as the Council.

There can be no democratic legitimacy unless it is parliamentary deliberations which form the political will underlying the legislative decision. This is not a mere formality; it is a substantive requirement, which will not be met if, when a vote is taken, only a handful of specialists from the various groups have a clear understanding of the scope and implications of the decision adopted.

The Union's institutions currently adopt several thousand acts per annum; every year the European Parliament considers an average of between 300 and 400 legislative procedures of widely varying political significance.

The basic idea behind the call for a hierarchy of Community legal acts is to draw a clear distinction between genuinely legislative measures, which need to be debated fully by Parliament, and other normative acts, which may be adopted by the politically competent executive.

There are no generally applicable criteria for distinguishing between fundamental, general legislative acts and other executive acts of a specific or technical nature. Past discussions of the Committee on Institutional Affairs confirm this. Although such a distinction is made in the French legal system, it is not transferable to Community legislation. The following example shows why: in the area of the common environmental policy, the adoption of certain emission limits is the concrete expression of fundamental political decisions. Although such acts are specific or technical in form, they require full parliamentary legitimacy. The European Parliament has therefore taken the line that it is for the legislature to delegate certain legislative powers to the executive by means of express provisions defining the aims, scope and limits of the powers delegated. With that proviso, the detailed structure of the hierarchy of acts depends on the institutional principles of the Union.

A clear and workable distinction between the legislation made by the legislature and that made by the executive would, in principle, also solve the comitologyproblem. As the implementing powers currently laid down in Articles 145 and 155 of the EC Treaty also include individual decisions, the latter have to be incorporated in the hierarchy of acts for there to be a comprehensive solution.

Accordingly, the categories of act and the relationships between them might be developed along the following lines in the course of the 1996 institutional reform:

1. Law and framework law or regulation and directive?

On the question of the hierarchy of acts, the European Parliament has so far consistently called for the Union's legislature to adopt 'laws' and 'framework laws' instead of the 'regulations' and 'directives' provided for in Article 189 of the EC Treaty. This change of terminology would make it possible clearly to distinguish legislative acts delegated to the Union's executive, which would continue to be called '(implementing) regulations' or 'decisions', as the case may be.

It could, of course, be argued that the terminology of Article 189 of the EC Treaty should not be changed because the legislative powers of the Union are delegated powers for achieving given objectives of limited import and scope, to which the terms used in Article 189 are better suited.

A change of terminology might have seemed appropriate in the context of the European Parliament's draft constitution. From the point of view of the forthcoming 1996 reform, it is neither necessary nor politically feasible. However, this is no obstacle to redefining the relationship between Community legal acts.

2. The material content of a hierarchy of acts

Under this heading, the following questions must be answered:

(a) Are there provisions of Community law with which every action of the Union's legislature must comply, and who can adopt them?

(b) Are there provisions of secondary Community legislation which stand out because they concern particular subject-matter or have to be adopted in accordance with a special procedure, and how do they relate to other provisions?

(c) In secondary Community legislation, do the categories of provision vary in their regulatory force? What is the relationship between them?

(d) What are the principles governing the transfer to the executive of powers to legislate and adopt individual decisions?

With regard to (a), where such provisions exist in the legal systems of the Member States of the Union, they make up constitutional law. In Union law, such provision are contained in the founding treaties supplemented by the legal principles and fundamental rights recognized by the European Court of Justice.

Some of the provisions of the Treaties take precedence throughout the field of application of the relevant treaty (e.g. Article 5,the last sentence of Article 130r(2), and the third indent of Article145 of the EC Treaty); in addition, the third indent of Article 145 of the EC Treaty delegates precedence to an act of secondary legislation. The effects of most provisions of the Treaties are of limited and definable scope; as provisions of primary law even they have the status of constitutional law. They are part of a basic consensus reached between the contracting Member States and are beyond the reach of the Community's legislative organs.

Changes affecting the hierarchical position of the Union's primary treaty law can be made only on the basis of a constitutional document overarching or replacing the Union's Treaty structure. However, in view of the decisions reached beforehand, there is unlikely to be discussion of any constitutional document at the 1996 Intergovernmental Conference.

With regard to (b), Article 189 of the EC Treaty draws a distinction between a directive and a regulation on the basis of their regulatory force; the former is binding only on Member States and only as to the result to be achieved and does not prescribe the choice of form and methods; the latter is binding in its entirety and is directly applicable in all Member States. The Treaties establishing the European Communities do not distinguish between acts on the basis of their subject-matter. Subject-matter does of course determine the procedure for adopting legal measures, but this does not establish any hierarchy between acts adopted under the various procedures:

- unanimity in the Council and ratification by the Member States

(Article 201 of the EC Treaty, own-resources; Article 138(3) of the EC Treaty, uniform election procedure);

- unanimity in the Council (e.g. Article 100 of the EC Treaty, tax harmonization);

- (qualified or simple) majority voting in the Council (the general rule).

There are also differences in the way in which Parliament and the Commission participate under these procedures; the need for reform in this area will be considered in the working documents on the legislative and budgetary procedure.

These are the arguments for a reform of the classification of Community legal acts and the relationships between them:

The distinction between acts which only set common objectives but leave to the individual Member States the choice of form and method, on the one hand, and those which are of general application and directly applicable in all Member States, on the other, is a distinction which has proven its worth and should, on principle, be retained. Although detailed rules are often included in directives, thereby infringing those principles, this shortcoming can be rectified by greater self-discipline on the part of the legislative institutions as well as by judicial review. However, the following aspects of the Treaty could be amended:

- Article 189 of the EC Treaty expressly provides that regulations and directives must cover an indeterminate number of cases;

- the Treaty provides that the adoption of a regulation may be contemplated only if the objectives of the relevant measure cannot be adequately attained by means of a directive.

With regard to (c), the implementation of the Treaty on European Union has given rise to considerable problems in an area referred to in the Treaties as 'implementing powers' (Articles 145 and 155 of the EC Treaty). The issue of 'comitology' has long been a bone of contention among the institutions. In order to free the legislature from the burden of deliberating on politically irrelevant technical details, a workable and democratically legitimate demarcation procedure must be developed. At present, the application of Articles 145 and 155 of the EC Treaty leads to:

- confusion between the delegation of legislative powers and the power to adopt individual decisions in implementation of an act;

- attempts once again to restrict Parliament's legislative powers by delegating legislative responsabilities.

The problem could be solved once and for all if the 1996 reform introduced a classification of acts including an overhaul of implementing measures. The underlying principle of this measure should be to keep the legislative institutions (Council and Parliament) to the basics and to strengthen the politically answerable executive branch. The reclassification could, for example, take the following form:

(ca) individual decisions

- implementation of Community law would essentially be a matter for the administrations of the Member States;

except where

- in an act, the Union legislature expressly conferred on the Commission the power to adopt individual decisions to implement the act, where appropriate after consulting an advisory committee;

- in special cases, which would have to be justified by the exceptional importance of the individual decision for the economic and social development of a Member State, in which it could be stipulated that the Commission must take an individual decision in consultation with the competent administrative committee;

- the Council's power to adopt individual decisions fall within the field of application of the Community Treaties.

(cb) Delegated legislative powers

- it would essentially be for the Community legislature to adopt acts regulating an indeterminate majority of cases in accordance with the procedure laid down in the relevant legal basis;

- the legislature would be empowered to delegate to the Commission the adoption of rules laying down politically uncontroversial technical details in the form of 'implementing regulations'. Whenever that option is chosen, the act must adequately define the content, purpose and extent of the delegation;

- the legislature could stipulate that the Commission was to be assisted by an advisory committee in the exercise of its delegated powers. In regulating matters which could have considerable effects on the economic and social development of a Member State, the legislature could stipulate that the Commission could not adopt an implementing regulation at variance with the vote of the advisory committee. If the Commission intended to disregard the vote of the advisory committee, it could submit the measure it favoured in the form of a legislative proposal under the usual procedure.

This arrangement would:

- strengthen the Commission's executive power without restricting the Member States' administrative powers;

- take proper account, in 'sensitive' administrative decisions, of the arguments of the administrations of the Member States;

- preserve Parliament's rights in the event of disputes where 'sensitive' legislation is to be delegated;

- provide an additional safeguard, in so far as the Court of Justice could determine, using precise criteria, whether an implementing regulation remained within the scope of the delegated power;

- make the Union legislature politically responsible for deciding, after taking every factor into consideration, what powers it wanted to delegate and how far it wanted to delegate them.

Diagram of the hierarchy of the acts of Union law

* Primary law (material constitutional law)

generally applicable - Art. 5, EC Treaty

Treaty provisions O

special legal bases - Art. 75, EC Treaty

in the Treaty O

* Community legislation

(a) directive(taking

- precedence) O

(b) regulation(subsidiary) O

* Community executive

(a) delegation of general legislative

powers defined by purpose and scope in

the form of implementing regulations O

(b) delegation of (adequately implementing

powers defined) in specific cases O

* Member States

(a) implementing law/regulation adopted

by the Member States O

(b) implementation in specific cases

by the Member States O