TCS Daily


Dance of the Seven Veils

By Matthew Elliott - March 26, 2003 12:00 AM

The final stage of the European Convention drafting a 'Constitution for Europe' is rather like a dance of the seven veils. At the fortnightly plenary sessions, the Praesidium unveils another section of the Constitution, which Conventioneers amend and then discuss at the following session. The introductory set of articles (discussed in my previous convention commentary) was extremely revealing: defining the objectives of the European Union, describing the fundamental rights of European citizens and identifying the Union's competences. The second set is, to say the very least, less sexy because it discusses the technical issue of the 'legal instruments' of the Union: how European law is agreed and implemented by the Member States.

Last year, the Convention's 'simplification' working group concluded that the number of legal instruments should be radically reduced to make the European legislative process more understandable and thus accountable. The amendments to Articles 24 to 33 and the interventions at the last plenary session suggest that Praesidium members failed to achieve this aim in their draft. Their so-called 'simplification' proposed six different legal instruments: European laws, European framework laws, European regulations, European decisions, European recommendations and European opinions. Confused? Imagine a tortoise.

One of the novelties of the Convention is Giscard's lucky mascot: a pale green and gold, dragon-like tortoise that Giscard places on his desk at the beginning of each plenary session to bring him luck. To understand the difference between these legal instruments, imagine what would happen if the European Union agreed that each member state should produce 'Giscard mascots' to display in town halls as a symbol of European unity.

Legislative Acts

If the mascot had been proposed by the European Commission (the executive of the Union) and approved by the European Parliament and Council (the joint-legislature of the Union), the appropriate legislative act would either be a European law or a European framework law (Article 25). The key difference is that whereas a European law is 'directly applicable' (i.e. additional national legislation is not required for the law to have binding force within the member states) a European framework law is 'binding, as to the result to be achieved' leaving member states 'entirely free to choose the form and means of achieving that result' (Article 24.1).

If the hypothetical decision for each town hall to have a Giscard mascot were implemented as a European law, each member state would have to fund the project in a certain way, produce the tortoises according to specified rules and display the tortoise in an approved position. If, on the other hand, the decision were implemented as a European framework law, individual national parliaments would draft separate national laws executing the decision.

Non-legislative acts

Once a legislative act is approved, the Commission or the Council can adopt additional non-legislative acts to facilitate implementation (Article 26). For this reason they are usually highly specific and, in effect, administrative rather than legislative acts. Both European regulations and European decisions are directly applicable and binding in entirety. Where they differ is that it is not necessary for a decision to indicate those to whom it is addressed. (The aim of this broader definition is to make European decisions the legal instrument of the Common Foreign and Security Policy, instead of the current 'common positions'-or uncommon positions as is the case with Iraq).

Returning to the Giscard mascot metaphor, the Commission may issue a European regulation specifying the type of tortoise to be produced. They may specify, for example, a precise aqua green (#7fffd4) pigmenting a particular paint (thixotropic silthane) alongside a certain gold paint (Welsh 18 carat) on a tortoise with a defined minimum dimension (202mm by 367mm). This is why regulations are often seen as being more administrative than legislative.

Non-binding Acts

Non-binding acts are often used to float ideas or to encourage harmonisation. If, for example, the Commission felt there was not currently sufficient support for the mascot proposal, they might propose a non-binding act as a preliminary step towards that goal. European recommendations and European opinions have no binding force (and are therefore not technically European laws) but they are occasionally referred to by the Court of Justice and are frequently used to start the legislative process.

So there you have it: the six ways in which the Giscard mascot proposal could be implemented. But why is the means through which European law is implemented in the member states so relevant to public policy? For two reasons: gold plating and accountability.

Gold plating

If a piece of European legislation is directly applicable, the same law binds each member state. But if the legislation is 'binding, as to the result to be achieved', member states implement the framework law in a variety of different ways, creating an uneven playing field. 'Gold plating' refers not to the gold paint on Giscard's tortoise, but to the over-implementation of European law-a speciality of the British civil service.

In one clear instance of gold plating the now Department for Environment, Food and Rural Affairs turned a 12-page EU document on arable land into a 68-page document of impenetrable jargon. In another, British farmers wishing to apply for one EU subsidy have to wade through 22 complex pages when the equivalent document in Ireland is just 2 pages. And finally, the abattoirs directive left the Commission as a 12-page document, was reduced by the French to a manageable 7 pages and expanded by the British to an unreadable 95 pages.

Accountability

Whilst regulatory competition between separate countries is good-creating an incentive to reduce regulation and encourage enterprise-in the European legislative context it creates a lack of accountability and fuels the infamous 'democratic deficit'. If it is unclear whether a particular regulation originated in the European Union or from a national government, voters are unable to hold politicians accountable for their actions. For this reason, a number of Conventioneers are advocating a complete simplification of the legal instruments: for all European laws to be either non-binding opinions or directly applicable laws. Perhaps, like the victorious tortoise in the Fables de la Fontaine, this genuine simplification will win in the end.

Matthew Elliott is a columnist for TCS Europe.
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