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Thursday, 26 October 2000 - Strasbourg OJ edition

6. Better lawmaking

  President. – The next item is the report (A5-0269/00) by Mr Wuermeling on behalf of the Committee on Legal Affairs and the Internal Market on two Commission reports to the European Council:

- Better Lawmaking – A Shared Responsibility (1998) [COM(1998) 715 – C5-0266/2000 – 1999/2197(COS)];

- Better Lawmaking 1999 [COM(1999) 562 – C5-0266/2000 – 1999/2197(COS)].


  Wuermeling (PPE-DE), rapporteur. – (DE) Mr President, ladies and gentlemen, first of all I should like to thank you for still being here to take part in this debate this Thursday afternoon. I should also like to thank my colleagues in the Committee on Legal Affairs and the Internal Market very much for the constructive and in-depth discussion we had on this subject. I am also most grateful for the supporting opinions of the other committees, and should like to express my thanks to Mr van den Berg of the Committee on Constitutional Affairs and Mr Candal of the Committee on Petitions.

Indeed, we had a very earnest and also very self-critical debate about the quality of European lawmaking and the application of the principle of subsidiarity. What conclusions did we draw? We established that the quality of lawmaking leaves much to be desired, particularly in the eyes of the public. There, frustration with, but also alienation from, European law becomes apparent from time to time, and we should like to urge Parliament, but also the other Community institutions, not to shy away from paying painstaking attention to detail here, to work with precision, and also to make the necessary time and staff available to do this.

But it is not only the quality of lawmaking which is crucial; we also need to be shrewd about the quantity of lawmaking, because not every problem in Europe is automatically a problem for the European Union. We expressly declare our support for the points made by the Commission in its strategic objectives for 2000 to 2005. It says that we need to concentrate on our core tasks. It can, nonetheless, be a painful process to give up dossiers on which one has been working. Unfortunately, examples from the very recent past show that the Commission, and also the European Parliament, do not always succeed.

You will remember the provisions recently presented to us on climbing ladders. I remember standards for ship survey organisations – I hope that I am not causing the interpreters problems – and I remember a proposal for a Directive on ambient noise which actually intends to produce noise cards for the whole of the European Union.

The Committee on Legal Affairs and the Internal Market explicitly calls on the Commission to resist the legislative pressure to which it has itself objected. This is no excuse for doing things which are actually superfluous. But of course, this request is also directed at ourselves to be sparing with European regulation.

We are helped here by the principle of subsidiarity which, in the view of the Committee on Legal Affairs and the Internal Market, should also be applied when deciding whether to make a particular matter the subject of internal market legislation. This principle should also be observed in full for green and white papers and for action programmes. The European Union cannot claim to have a monopoly on competence here. Here, too, specific authorisation is required, together with thorough verification of compliance with subsidiarity.

On this occasion, we have also discussed a tendency which we find worrying, which is for more and more decisions to be taken away from the institutions which actually have the democratic legitimacy to do this. The introductory comments in the Commission's White Paper on good governance set us thinking. If then a comprehensive set of networks is to be formed, if more soft law is enacted, if interpretative guidelines are adopted by the Commission and if many issues are resolved by agreement between the parties concerned, then this may well all be justified, but it cannot impinge on the responsibility of the legislator.

We ask the Commission here quite specifically to observe the clear demarcation of responsibilities both between the EU and the Member States and within the institutions. With this report we want to send out a signal to the public that we are taking their complaints about the deficient quality of lawmaking and the complaints about over-regionalisation and centralism seriously. I would ask you to help us to send out this signal, and to vote in favour of this report of the Committee on Legal Affairs and the Internal Market.


  Berger (PSE).(DE) Mr President, may I first, on behalf of my group, congratulate the rapporteur very warmly on his report, which certainly gives a very good, consistent and comprehensive picture of the situation as he sees it. Nevertheless, my group tabled a large number of amendments both in committee and in the plenary, and the fact that it did so is no reflection on the quality of the report, but because we are, after all – particularly on the issue of the scope of the principle of subsidiarity – of a different political opinion. We want a strong union which takes full responsibility for the tasks incumbent on it, which creates a well-functioning internal market and which actually makes it possible to strengthen social and regional cohesion.

It has to be possible for the Community to act wherever this makes it possible to achieve improved and increased European added value. It is particularly important for this strength of acting at Community level to be emphasised at this time. Firstly because, in view of the forthcoming enlargement, we are in especial need of a strong European Union if we want to help the future new Member States and their peoples, and also if we want to overcome the many crucial tests facing us in our Member States.

Secondly, we in the European Parliament, of all people, should be emphasising European togetherness and the Community aspect, particularly at a time when we are seeing that the commitment of the governments of many Member States to this is declining, and that short-sighted, egotistical nationalism and a desire to go it alone are gaining increasing ground. But it is precisely when we want the creative power of the Community to be at work in all the central and important European issues, and when this is also accepted and supported by the public, that it is certainly necessary for us to concentrate more than ever on the essential points and to delete a good many of the points from our present agenda.

I am also convinced, if we can agree on what is necessary and right, that it would be better to do this on a case-by-case basis and to remove anything superfluous from the agenda. It is certainly easier to make pragmatic decisions in individual cases than it is in general reports and debates of principle. This is particularly true of the principle of subsidiarity, but it also applies to the quality of legislation. Instead of having abstract arguments about general principles, we should consider the necessity of individual projects more often in this House and we should also invest more time and resources in legislative quality.


  Beysen (ELDR).(NL) Mr President, Commissioner, ladies and gentlemen, I would first and foremost like to thank the rapporteur, Mr Wuermeling for the work he has invested in his report. It is of course quite a significant topic, although this is not immediately evident from the small number of members present in this Chamber to continue with the debate.

This Parliament produces European legislation much like a conveyer belt. All too often, however, we are forced to conclude that this European legislation is packaged in a language which is too technical, too legal and too complex, so much so that this European legislation becomes unusable, as a result of which the intended goal, namely to make legislation in the European Union transparent and unambiguous, is not achieved. European legislation must be a flexible and practical instrument which also becomes accessible to the average citizen pursuant to the principle of subsidiarity and reasonableness. I was delighted to note that Amendments Nos 3, 4, 5 and 6, which I tabled myself, have been approved by the Committee on Legal Affairs and the Internal Market. Indeed, the objective of these amendments is to continually evaluate the subsidiarity reports, to check on a regular basis whether they are up-to-date and to investigate beforehand whether certain regulations and/or directives are indeed useful.

I am also in favour of making codified proposals with regard to amendments to existing EC legislation, so that the amendments can be integrated into the existing directives or regulations.

Finally, I am an advocate of setting up some kind of scoreboard for redundant legislation. It is beyond question that redundant legislation needs to be abolished, for it is indeed not sufficient to restrict the inflation of legislation; rules and regulations must also be drafted in clear language and the obligations pursuant to these must be easily understood.

I therefore hope that the report will be adopted without further amendment, by the Committee on Legal Affairs and the Internal Market, and that it will be a useful instrument to simplify European legislation and to render it transparent and effective.


  MacCormick (Verts/ALE). – Mr President, it is a great pleasure to have the opportunity of commenting on this report by Mr Wuermeling and on the fundamental underlying question of making our law in Europe good law and clear law. I congratulate Mr Wuermeling on his report.

Etienne Dumont and his great English master, Jeremy Bentham, were inclined to make the point that since laws are always in some measure coercive, they are always in some measure evil. They may be necessary evils where they control yet greater evil; but they should only do so proportionately to the evil to be met and dealt with. We can accept this point and this report reflects that spirit, in demanding clarity of law, simplicity of law and proportionality of the legal means to the public end sought.

In addition, and vitally, the report raises the issue of subsidiarity, which is in some measure controversial in this Chamber tonight. Subsidiarity, indeed, comes from the work of Pope Pius IX and therefore from an enemy of the Benthamite approach to law. But here two different traditions of thought come together. It is not a good thing to take decision-making away from the most local level at which it can be efficiently exercised, whether that be the level of the individual, the family, the village, the town or whatever.

I receive letters from time to time, one only last week from one of my constituents living in a remote part of the West Highlands of Scotland. He said to me: "What are you people out there doing? For 2000 years or more people have been safely drinking the water from the burns (the little rivers), and now they are prohibited from doing so. Elaborate schemes of water purification are imposed upon them to no public good." I hear similar things from residents of the Island of Islay, where the proposal for the protection of the local seal colony by a grand international body is resented, because the people have looked after the seals better for the last 2000 years than we think a grander organisation is likely to do in the future. The point is made. Law should be made close to the people, and local knowledge, whenever it is the most relevant knowledge, should always be applied, rather than the grand over-arching scheme.

It is, however, also true that there are some public goods that can be pursued only at the most general level and there are, indeed, aspects of environment protection, aspects of species protection, for example, aspects also of single market law, aspects of law against protectionism, aspects of law to govern the Internet, which can only be approached at a level at least as general as the European level. The principle of subsidiarity, properly understood, points us in both directions: take decisions at the lowest level possible, but acknowledge that the lowest level possible may be indeed a very high level, when general goods are at stake that will be lost unless protected on the same terms everywhere. So that makes this stress upon subsidiarity very important.

I think my friend Mr Medina, and his colleagues, are wrong in saying that this is only a political principle. It is a constitutional principle and, like all constitutional principles, it has on the one side a political impact when we, the legislator, decide what law to make; but it has, on the other hand, a legal impact when it comes to the question of how the courts should interpret and apply the law.

May I finally commend to the House Amendment No 1 which asks that the Commission and the European Union take seriously the fact that we have, as well as the Union of the States, autonomous self-governing communities within. I represent Scotland in this House. Scotland and England formed the United Kingdom by Treaty in 1707 and have maintained it since then. For 290 years, however, Scots law, which remained a distinct body of law mid-way between the civil law of continental Europe and the common law of England and the Americas, retained a distinct system but was legislated only from Westminster.

We have created a Scottish Parliament in the last year. Scots private law has been sent back home; Scots criminal law has been sent back home. It would be an irony indeed if, at the very moment of achieving that, we were to transfer the whole of legislative power over private and criminal and commercial law to the Union. I do not think that is what is intended or will happen. But it is important to bear in mind the interests of subsidiarity at levels below the Member States, as well as between the Member States and the Union, and there is no reason at all why the constitutional principle that is at stake cannot be interpreted widely and generously at all levels of this great Union.




  Mathieu (EDD). (FR) Mr President, I think we should be very pleased with the quality of this report. Our fellow citizens often see subsidiarity as a vague concept, but they can certainly appreciate its proper application. Mr Wuermeling has made an excellent presentation of subsidiarity, guaranteeing decision-making at the most relevant level. We would actually like the Commission to give us more details on the proper application of this principle for each proposal, so that a real balance sheet can be drawn up at the time of the annual report. It would also be very worthwhile if the Commission could make an inventory of the existing body of law in the light of that principle, to make it simpler, more transparent, more effective and more relevant, and to repeal superfluous texts, as Paragraph 6 of this report invites it to do.

For example there is Directive 79/409, which has prompted the tabling of a written statement on the management of wild birds, already signed by a large number of Members. A text like that needs revision when it no longer responds to its initial objective and has become out of date and inappropriate, otherwise it will be a source of disputes as harmful as they are unpopular.

While I share the rapporteur’s concern about quality legislation, I am even more concerned than him about real complementarity between our Parliament and the national parliaments. They must be asked to participate fully in a better application of the principle of subsidiarity. Who better than they to assess what they are actually in a position to achieve at national level and what should be done jointly at European level? The Heads of State and Government, to whom this report is addressed, will have an excellent opportunity at the IGC to assess which measures should be taken at European level and which at national level.

In conclusion, I would say that while I find certain amendments very constructive, I wonder about the logic of certain others which seem to ignore the reality and importance of a principle enshrined in the Treaties.


  Harbour (PPE-DE). – Mr President, Mr Wuermeling has done a first-class job on this report. In presenting a report calling for simpler and clearer lawmaking he certainly had to match his expectations of that with the quality of the work he produced himself. The report is a model of concise and clear drafting and I hope colleagues will take that very seriously indeed.

I want to reinforce the points that have been made about subsidiarity but I want to put them in the broader frame of the reform of the European Commission. It is quite clear from all the communications we have seen, and particularly the importance that the Commission is rightly attaching to matching competences with resources, that the Commission itself realises that it has to produce less legislation and that it has to think about putting more resources into enforcing what it has already done.

Arguably we have too much law in place now that is improperly enforced. If we have law in place that is not being properly enforced, it is not effective at all. We need to look at that as part of the review that is called for here. I attach considerable importance to this point and I particularly welcome the emphasis that Mr Wuermeling has given to aspects of scrutiny by national parliaments.

One major problem in the European Union, and this particularly impacts on this committee from the internal market viewpoint, is what has now become widely called the gold-plating of European Union legislation.

It is not enough for the Commission simply to look at transpositions into national law. It has to look at what national parliaments have done with that legislation. There are many examples where we see that a comparatively simple piece of simple market legislation – a common standard, a single principle – has become over-complex, over-enforced at national level and has caused considerable difficulties. I would ask the Commission to have a serious look at this problem of gold-plating. Let us take, shall we say, six clear examples and look at how they have been transposed in detail, how they operate within the countries, how they are being enforced and make a really clear and transparent assessment of the effectiveness of the legislation, because if legislation is not effective, then we have all wasted our time.


  Medina Ortega (PSE).(ES) Mr President, I should first like to recall the kind reference Mr MacCormick made to my intervention in the Committee on Legal Affairs and the Internal Market. Mr MacCormick stated – it is, in fact, true – that I had said that the principle of subsidiarity was not a legal principle but rather a political principle. Having studied the report with great care, I have come to the conclusion that it is not even a political principle: it is a theological principle. Mr MacCormick, himself, has just pointed out that the principle was expressed by a pope, and it is clear that it is impregnated with theological considerations.

I should like to recall that in the seventeenth century a great Dutch lawyer, Hugo Groot, better known as Grotius, one of the founders of international law, warned theologians to stay out of legal matters with that famous phrase, ‘Silete, theologi, in munere alieno.’ At these moments I should like to express my sympathy, my admiration and my pity for the Commission for having to live with this kind of principle.

The second paragraph of Article 5 of the Treaty establishing the European Economic Community is utterly unintelligible. This definition is a circular definition, not a legal definition. It states that ‘In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.’ Nobody can understand that. Neither can anybody understand the Protocol annexed to the Treaty of Amsterdam to define subsidiarity, nor Declaration No 30. The poor Commission has made a very commendable effort with the documents ‘Better Lawmaking 1998’ and ‘Better Lawmaking 1999’, in which it tries to be tolerant with this nonsense approved by the governments in the Treaty on European Union and the added Protocol.

The report by the Committee on Legal Affairs and the Internal Market did not gain much enthusiasm from its Members. The proof is that, of the 17 Members on the Committee, 8 voted in favour and 9 abstained. In other words there were more abstentions than votes in favour. The reason why there was so much abstention is that we Socialist Members on the Committee – and some other Members – were expressing our scepticism regarding the overvaluing of the subsidiarity concept in the report.

The subsidiarity concept as put forward in the report by the Committee on Legal Affairs and the Internal Market is a concept which has been exalted to heavenly heights, and therefore as a theological principle it lies beyond the scope of the Community.

We have submitted 12 amendments to the report by the Committee on Legal Affairs. We also support Amendment No 13 by the Group of the European Liberal, Democrat and Reform Party. We hope the House can accept our amendments, and if so we shall vote in favour. Otherwise we shall be obliged to vote against.


  Mauro (PPE-DE).(IT) Mr President, I will use this brief intervention to support the amendment tabled by Mr McCormick, which I believe has the merit, in this case, of having pinpointed the fact that the principle of subsidiarity, besides being a legal principle and, perhaps, besides being a theological principle, is certainly a principle of great existential importance, which is to say that it can immediately be related to the daily lives of our citizens. What in fact is the state, or in any case a governmental body, if not the fruit of a pact for freedom between the citizens? In this sense, if there has been a pact for freedom, the state is the guarantor of any attempts that its citizens make to meet their own needs, it is not the master of them.

If it is a guarantor and not a master, it immediately follows that in the structure created by Mr Wuermeling, under which powers would be devolved to the Member States in accordance with the principle of subsidiarity, what should subsequently be guaranteed is that an identical process must also be followed by these same Member States. Observance of the principle of subsidiarity should therefore be guaranteed right down to the smallest communities, to autonomous units, to intermediate groups, social groups, families and citizens who are the only true sovereign power when it comes to legislative and administrative action. It is for this reason that I would like to state my support for Amendment No 1 to Paragraph 11a, tabled by Mr McCormick, which would seem to reproduce and propose in a sound and upright manner an interpretation of the principle of subsidiarity that is not theological but constitutional, as it should be.


  Berenguer Fuster (PSE).(ES) Mr President, the truth is that with this report and a few opinions something has occurred that reveals how complicated it can be to legislate or even just deal with reports in this Parliament. I drew up an opinion within the Committee on Economic and Monetary Affairs which in principle was linked to this report, but it ended up referring to a different report on the SLIM project. Regardless of the reasons that may have caused this mistake, it is certain that it is motivated by the constant initiatives, originating in the Commission, that are carried out with regard to legislation. The Commission is aware of the inadequacies of Community legislation and so continually issues documents saying that we have to legislate better or we have to simplify the legislation. I referred to this in the report on the SLIM project, because Community legislation – and Mr Medina has just proved it by reading out one of the articles of the Treaty – is difficult to understand, even for the experts.

Mr President, any of the observations I made about the SLIM report could equally apply here. And I say this from within the Committee on Economic and Monetary Affairs, which is the one most concerned about the proliferation of legislation and the lack of clarity in these texts.

Yet the little confidence we may have in the improvement of legislation does not lead us to the same interpretation of the principle of subsidiarity that the People’s Party on the right of this House has reached. If we took this line of reasoning to the extreme, we could ask the Community not to do whatever the Member State can do. Coming down from this, we have just heard Mr Mauro support the idea that the family should do everything, that the municipalities should do everything, and any kind of administration should disappear. This would be anarchy, an idea that we, of course, do not share.



  Palacio Vallelersundi (PPE-DE).(ES) Mr President, first of all I apologise to you, the Commission and all my colleagues for being late, but I have come from another meeting and could not get here any earlier.

Several accomplished speakers from the European People’s Party have already taken the floor to express the views of the group. Let me, then, give an overall view.

First of all, I think, of course, that the Commission’s work is laudable and often extremely difficult. In this document entitled ‘Better Lawmaking’ there are barely two paragraphs on subsidiarity. This is evidently related to the difficulty of this principle, which we have even described as theological. Nevertheless I believe we have to insist that as it is in the Treaty it is a principle that can stand before the Court of Justice. It is true that we do not yet have a case based on a breach of the principle of subsidiarity, but it is there and we cannot ignore that.

In other words, Mr President, the principle of subsidiarity is probably the principle that fuses, brings together and sums up what the building of Europe is all about, because ultimately it is nothing but the political will that is included in the Treaty. An understanding of the principle of subsidiarity depends greatly on what the political will is at any moment.

I am therefore not very enthusiastic about certain aspects of the report, because I would have liked the report to have been more ‘communitising’ as regards the internal market, and on this point, especially, these are clearly not the prevailing winds in the report. As regards the rest, Mr President, the report deals with other issues that are not on the same level. Codification and simplification are important and laudable issues, but only a matter of good legal technique.

I would therefore ask the Commission to provide us next year with a report on the implementation of the principle of subsidiarity with all its consequences, and another report on the implementation of good administrative and legislative techniques.


  Wuermeling (PPE-DE), rapporteur.(DE) Mr President, thank you for allowing me, as rapporteur for this report, to make one additional comment on Amendment No 8 which was tabled by the Group of the Party of European Socialists. Much has been said about subsidiarity being a theological principle. I should like to recall a speech by John Paul II of four weeks ago in which he explicitly welcomed the fact that the principle of subsidiarity was being applied politically. I should like to recommend to all colleagues that they follow this wise piece of advice.


  President. – That was not a procedural motion but I think you are entitled, as rapporteur, to make that point clear.

I give the floor to the Commissioner.


  Liikanen, Commission. – Mr President, I would like to begin by thanking the rapporteur, Mr Wuermeling, and the Committee on Legal Affairs and the Internal Market for their work on better lawmaking. We are dealing with an extremely important issue. We must always ask ourselves whether we need legislation to solve a problem. The second question is, if we need legislation, should it be at European level or national level? Thirdly, if we decide to legislate at European level, how can we guarantee that the legislation is simple, clear and can be transposed? Fourthly, is there any way other than legislation of meeting the same objective at European level, such as soft law, a code of conduct or co-regulation?

I also agree with the report and views expressed in the discussion here that enlargement will present a major challenge vis-à-vis the quality of legislation, owing to the economic, social and legal problems which the new Member States will bring with them. This must be respected and taken into consideration by EU legislators. Subsidiarity, proportionality, better quality legislation, simple regulation, increased codification: all must become major political issues on which we will focus. Actually, this screening of the existing acquis communautaire is often a very useful exercise in showing that it is not always necessary to legislate at Community level or whether a law is too detailed for legislation at the Community level.

I do not want to go into a deep discussion about the theological or political history of subsidiarity. What is important for the EU institutions is that we have a strong commitment to improving the quality of legislation, especially with regard to subsidiarity. The Commission is making both political and internal efforts to incorporate subsidiarity into legislative proposals. The initiative to prepare a White Paper on governance, for example, is an attempt to promote the principle of subsidiarity at all levels. The rapporteur mentioned the question of soft law recommendations or other agreements. I think they are extremely important issues to discuss. I see here some colleagues of yours who played a considerable part in the regulation on the information society and the Internet. Is it possible to regulate the issues when technology moves extremely fast? Is there a risk that we will put brakes on development if we legislate? Is there a risk that technology will move so fast that the problem will have changed before legislation is ready?

That is the area where we must look at issues with a very open mind. I will take a very personal position by saying that there can be new types of governance here, where regulation and self-regulation can be complementary and not alternatives. But what is important for voluntary agreements or self-regulation is that they must be implemented, we must know that they are enforced, we must know how we can monitor that what has been agreed has happened. Then it is important to see what the European Parliament's role should be in discussions: there can perhaps be open discussions, debates, dialogue, which guarantee that the European Parliament is part of the debate. However, the more we go into the details of information technology, the rapid changes on the Internet, the more convinced I am personally that detailed regulation is not the solution to this problem or, if it is a solution to something, it is not the problem which is faced by information technology.

There are also other areas of the internal market regulations which are very complicated. I will just mention so-called pedestrian-friendly cars, which the Commission will discuss in a few weeks time. This directive could be 64 pages long, extremely detailed, mathematical, and involve a lot of engineering expertise. Is that an area where we should go for detailed regulation, with guarantees that will be implemented everywhere or should we consider whether a voluntary agreement, provided that it can be enforced and controlled, as an alternative?

These are the kind of debates that we need to go through in the next few years. I hope that this report, which we Commissioners were given last year, will in future include subsidiarity, better regulation and assessment of alternatives, while respecting the legislative authority of the Council and Parliament.

Finally, I want to take into account the criticism which we have seen in Parliament's report. It is concise and clear. I will transmit the message to my colleagues in the Commission and the Commission will do its best to react positively to these in the preparation of the next report. I hope that we can continue this debate so that it is not only a routine matter on Thursday afternoon but part of the central debate on Community legislation as a whole.


  President. – Thank you, Commissioner.

The debate is closed.

The vote will take place at 6 p.m.

(The sitting was suspended at 5.27 p.m. and resumed at 6 p.m.)



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