*** COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 01.12. 1998 COM(1998) 715 final BETTER LA WMAKING 1998 A SHARED RESPONSIBILITY COMMISSION REPORT TO TIIE EUROPEAN COUNCIL CONTENTS I. Introduction H. Applyin2 the principles of subsidiarity and proportionality 1) Clear and codified principles 2) Dynamic principles 3) Difficulties of application 4) Positive results in 1998 III. Other measures 1) Quality of drafting: new guidelines 2) Simplification 3) Formal and informal consolidation, recasting 4) Access to information IV. A shared responsibility 1) Greater discipline on all sides 2) Accurate information at every level V. Conclusion 1 0... " . ... I. iNTRODUCTION The annual report to the European Council on "Better Lawmaking details the measures taken by the Commission to improve Community legislation.! These measures include correctly applying the principles of subsidiarity and proportionality, improving the quality of drafting, employing practices such as simplification and formal and informal consolidation and opening up access to information. In 1998 As the 1998 report makes clear, this undertaking is now bearing fruit Better and attracting greater poIiticalinterest. lawmaking received... Measures that are bearing fruit ... The results are phiin to see: the Commission is targeting its initiatives, concentrating on constant attention from political priorities. Its proposals- have been the driving force behind .the the major developments in the recent history of the European Union, such Commission as the move towards the euro; the Commission endeavours to apply scrupulously the principles of . subsidiarity and proportionality even before the ratification of the protocol annexed to the Treaty of Amsterdam. It takes internal steps to check the grounds for legislative proposals more closely for compliance with the principles of subsidiarity and proportionality. It will formally adjust its guidelines for legislative policy before the Amsterdam Treaty enters into force; the overall number of proposals is falling despite an increase in the number of proposals for new legislation to implement Agenda 2000; the Commission is engaged in better consultation with the This report is a response to the requests made by the European Council of December 1992 and subsequent European Councils and to the Interinstitutional Agreement of 29/10/1993 on the application of the principle of subsidiarity (Bull. EC 10- 1993, p. 102). After the first two reports for 1993 (COM(93)545) and 1994 (COM(94)533), the Commission decided that the scope should be extended to include all action aimed at improving legislation in the broad sense ("Better lawmaking ). This approach was approved by the European Council. "Better lawmaking" reports have been presented every year since then: 1995 (CSE(95)580), 1996 (CSE(96)7) and 1997 (COM(97)626). In 1998 the Commission also presented a report to the Cardiff European Council: Legislate less to act better: the facts" (COM(l998)345). Bull. 1/2 1996, point 1.10. 11. 1 b ... parties concerned and is framing clearer, simpler, more accessible legislation; more generally, the Commission is restructuring its organisation in order to perform its role effectively in a Europe that is constantly changing. ... and attracting greater political interest: The Protocol on subsidiarity and proportionality and Declaration and greater interest from the No 39 on the quality of the drafting of Community legislation, both Heads olState annexed to the Treaty of Amsterdam, have put these subjects back on or Government the political agenda at the highest level: the Cardiff European Council in June welcomed the Commission s report "Legislate less to act better: the facts" and emphasised "the importance of subsidiarity and better regulation which was "a shared responsibility which requires the institutions and the Member States to work together the Cardiff European Council also convened an informal meeting of the Heads of State or Government under the Austrian presidency, which took place in Portsehach in October 1998 and was devoted to the future of the European Union. The implementation of the subsidiarity principle was one of the topics discussed here, in the wider context of bringing Europe closer to the people. u. APPLYING THE PRINCIPLES SUBSIDIARITY AND PROPORTIONALITY 1) Clear and codified principles There are now clear rules on subsidiarity and proportionality, which are to be found in the Protocol annexed to the Treaty of Amsterdam. This lays down as precisely as possible the conditions for applying these principles, expounded in Article 3b of the Treaty. Subsidiarity According to this Protocol, the principle of subsidiarity: What subsidiarity is not , " does not mean rewriting the Treaties or changing the powers which they confer on the Community (only an intergovernmental conference could do that); does not seek to shift the institutional balance, and in particular to limit the role of the Commission in earrying out the duties conferred on it by the Treaty; has nothing to do with a "democratic deficit" that has to be made good: it should not be confused with democratic control of . Community action. The important points to note in both the Protocol and Article 3b of the What subsidiarity is. Treaty are that: It applies to exercise of exclusive subsidiarity does not apply to the areas of shared Community powers; powers it operates instead in the area of shared powers. Community action cannot be justified merely by referring to the objectives of the Treaty and to secondary legislation; the proposal must demonstrate why such action is necessary. This calls for a case-by-case examination, while still maintaining the coherence of Community action. The protocol specifically states that the extent and impact of the proposed action must be examined in political, economic and budgetary terms. Proportionality Proportionality, which of course also applies in . areas of exclusive Proportionality applies to all powers, seeks to ensure that the impaet of Community law on national areas of law does not go beyond what is necessary to achieve the objectives of Community the Treaty. This principle should, in particular, help the institutions to activity eliminate excessive detail in regulations. It implies a strictly objective assessment of the issues. 2) Dynamic principles Subsidiarity and proportionality, now clearly codified, must remain Clear and codified evolutionary and dynamic principles, flexible to apply and pragmatic principles: including economic efficiency as a criterion for application. application must be This is particularly true of subsidiarity. This dynamic view of flexible and subsidiarity is in fact expressed by the Protocol annexed to the new evolutionary Article 3 of the Protocol states that The principle of subsidiarity does not call into question the powers conferred on the European Community by the Treaty, as interpreted by the Court of Justice. Treaty. It means that Community action may :be extended when circumstances require, subject of course to the limits of the objectives and powers provided for by the Treaty. Conversely, action that can no longer be justified may be terminated. There is a need for rapid adaptation to keep pace with the changes we are witnessing in technology, the economic climate, social problems and popular expectations. In other words, the sharing of responsibilities should evolve towards The questfor an "active" subsidiarity, based on clear objectives pursued in concerted active subsidiarity fashion at all levels. In this respect, granting rigid block powers does nothing to encourage the exercise of shared responsibility. On the contrary, it is likely to lead in practice, to a division of powers that is inimical to efficiency. The aim is not, therefore, to set immutable limits to the powers of the Union. On the contrary, new dynamism must be injected by taking or refraining from action on more clearly defined grounds and with more detailed information about the terms and extent of our involvement. 3) Difficulties of application The Commission acts within the international political and economic The origin of context; it takes account of the needs of the people and the interests of Commission proposals economic actors. It maintains its political responsibility in the exercise of its right of initiative, even when it is subject to a certain amount of legislative pressure arising from the interinstitutional context of the Community, the specific demands of the Member States and economic operators and the very nature of international affairs. These demands do not always correspond to the principles of subsidiarity and proportionality. A quick analysis of the origin of Commission proposals produces the following interesting results: some 35% of the Commission s legislative proposals are the 35% direct result of international agreements (either proposals for decisions proposals are the result of enshrining an undertaking between the Community and third countries international or proposals for internal acts to implement the Community agreements international commitments at internal level); a second major category of legislative acts proposed by the Between 25% and 30% of Commission concerns the amendment of existing Community law to proposals are update it to take account of new scientific Or . economic data and concern the technical progress. The economic and technological context of world amendment of society is changing more and more quickly (one has only to think of existing advances in biotechnology