Good Governance and the European Union

3 downloads 4489 Views 1MB Size Report
Mar 1, 2017 - treaty articles and to both the Ius Commune Research School and the Wiarda Insti- ...... tal Principle, Defended European University Institute, Florence, September 2001 and R. ...... Florida Journal of International Law, 2000, p.
Good Governance and the European Union Reflections on Concepts, Institutions and Substance

Editors: D.M. Curtin R.A. Wessel

Good Governance and the European Union Reflections on Concepts, Institutions and Substance

INTERSENTIA

Ius Commune Europaeum

Editors: Deirdre M. Curtin Ramses A. Wessel

Good Governance and the European Union Reflections on Concepts, Institutions and Substance

Lay-out: Bureau JA Vormgevers, Tilburg © 2005 Intersentia Antwerp – Oxford – New York

ISBN 90-5095-381-6 D/2005/7849/11 NUR 823

No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

INTRODUCTION

This project started life in 2002 as an attempt to bring legal scholars together within the then emerging cluster of ‘public law’ in the Ius Commune Research School based in the Netherlands. The latter obtained funding in the Dutch/Flemish context as a specifically private law enterprise and only later and in a somewhat ad hoc and incremental fashion welcomed public lawyers from the participating universities (the Universities of Amsterdam, Leuven, Maastricht and Utrecht) to the point where now, in 2004, some few years later, this Research School has transmogrified, also formally, into its (largely) separate components of private and of public law, standing proudly, side-by side. The public lawyers in question were (and are) a motley bunch, drawn from the various disciplines of Dutch administrative and constitutional law as well as public international law and the institutional law of the European Union and other international organisations. This is both a weakness and as it turns out a source of strength. When casting around back in the spring of 2002 for a suitable and inspiring topic to bring this particular group of scholars together, our attention was caught by the efforts of the Commission to discuss and debate the topic of ‘governance’ within the European Union, with a White Paper on the topic having been issued a year before. The editors took the initiative of planning a workshop session in the summer of 2002, devoted to the subject of ‘governance’ and with the European Union at least as the back-drop if not always the focal point. ‘Governance’ then and even more so now risks being perceived as a hopelessly imprecise endeavour, as a vague umbrella notion, with fuzzy boundaries and even fuzzier implications for our systems of accountability and responsibility which have evolved, over the centuries, in the context of the democratic nation states. Indeed, despite much pretension and rhetoric at the time the Commission did (could) not define the term ‘governance’ nor attempt to render it operational in any concise fashion in the context of the European Union and its policies and practices. The way the concept is used in the White Paper in fact seems to be rather normative and comes close to what is often referred to as ‘good governance’. With this in mind one of the aims of our endeavours has been to see to what extent useful lessons can be learnt from practice in different contexts, especially those of the national and the international legal and political orders. At the same time we did not aim to produce a i

Introduction

perfectly ordered thematic book since we were dependent on the abilities and expertise of those scholars from the four Universities who participated in this project (the Universities of Leuven, of Maastricht, of Utrecht and of Twente) and the specific angle they chose to study. Basically the book can be divided into a number of different parts, which although separate are not hermeneutically so. The perspectives adopted can be summarized for the sake of brevity as: conceptual, lessons to be learnt from other jurisdictions, institutional considerations and certain substantive studies of particularly relevant areas. First a number of contributions look at how we can approach the notion of governance and its parameters within a legal discourse. What do we mean by the concept and is it appropriate to apply it in the current discussion on EU governance? What contribution is made in terms of deepening the discussion on each of the substantive criteria it enumerates? The book opens with a largely conceptual piece by Ige Dekker and Deirdre Curtin who adopt a rather particular framework of analysis, namely that of the institutional theory of law. Henk Addink also contributes conceptual reflections on good governance when considering the lessons that can be drawn from national administrative law. Our colleague from constitutional law, Luc Verhey, discusses some issues relating to European governance from a national (constitutional) perspective. Finally in terms of contributions which attempt to grapple with the issue of ‘lessons learnt’ from other national and international contexts, Jan Wouters and Cedric Ryngaert address the perspective of other international organizations and the way organizations such as the World Bank, IMF or the WTO seem to become more responsive to calls for good governance Next we look at the institutional translation of the criteria of (good) governance. Does the concept contribute to our thinking on issues such as the institutional balance and the horizontal and vertical delegation of powers as well as an (extra-) institutional role for civil society and for national actors? In other words: in what way could or should the notion of good governance help shape the future institutional configuration of the Union? Thus Ellen Vos argues that the use of the so-called committees is often viewed as being problematic both in terms of institutional balance and legitimacy as they are arguably obscure, highly complex and lack accountability. She analyses what role, if any, comitology may and/or should continue to play in European governance. Along the same lines, Ronald van Ooik poses the question of whether the proliferation of agencies should be seen as a shift in governance and maybe even a threat to the currently existing institutional balance. This section is closed by Amaryllis Verhoeven, who examines what the new constitutional text has to say about democracy in the European Union. What definition of, or approach to, democracy can be found in the European Union’s (future) founding text? And further does the Constitution’s approach to democracy form a good basis for ensuring the democratic legitimacy of the European order? In a third dimension, the concept may be analysed in relation to a number of substantive issues. Does the concept play a role in foreign, security and defence policy, in police and judicial cooperation or in economic or environmental law? And if so, how is it taken into account in these areas? Environmental law has a tradition of accepting influence of non-state actors. Michiel Heldeweg asks the question whether the concept of good governance is relevant to this area and, if so, in what sense and ii

Introduction

to what extent. This is followed by an analysis of a policy domain that is to a large extent the prerogative of states: the Union’s common foreign and security policy. Ramses Wessel applies the concept of good governance (as developed in the White Paper) to this area and investigates whether the Union practices what it preaches in relation to many third states. Finally, Steve Peers addresses governance in the context of the EU’s ‘third pillar’, the detailed rules providing for adoption of measures concerning policing and criminal law that are more and more relevant for citizens. He takes a closer look at the accountability of one particularly important organization in that field: Europol. We are grateful to the people and institutions who assisted us in getting this book in the shape it finally took: Marjo Mullers at the Ius Commune secretariat for her tireless sub-editing of contributions that were updated several times by the authors, Peter Morris for the language revising, Lavinia Baciu for helping us to update the treaty articles and to both the Ius Commune Research School and the Wiarda Instituut (Utrecht) for their financial support. We hope that the contents of this edited volume will make a modest contribution to the ongoing and salient debate on the contents and limits of the notion of good governance especially in the international and European context. The contributions were updated in October 2004 to take account of the final numbering and content of the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004. Utrecht/Enschede, Deirdre M. Curtin and Ramses A. Wessel

iii

TABLE OF CONTENTS

Introduction ........................................................................................................................... i Table of Contents ................................................................................................................. v I.

CONCEPTUAL, NATIONAL AND INTERNATIONAL LEGAL FRAMEWORKS

Deirdre Curtin and Ige Dekker Good Governance: The Concept and its Application by the European Union........ 3 1. 2. 2.1. 2.2. 3. 3.1. 3.2. 3.3. 4.

Introduction .............................................................................................................. 3 ‘Governance’ as an Institutional Concept of the Legal System of International Organizations .................................................................................... 6 Legal Institutions...................................................................................................... 6 ‘Governance’ as a Legal Institution........................................................................ 8 The Principles of ‘Governance’: Openness and Participation in the Legal System and Practices of the European Union..................................................... 10 The Meaning of ‘Governance’............................................................................... 10 The Principle of Openness .................................................................................... 12 The Principle of Participation ............................................................................... 16 Concluding Remarks ............................................................................................. 19

Henk Addink Principles of Good Governance: Lessons from Administrative Law ...................... 21 1. 2. 3. 4. 5. 6.

Introduction ............................................................................................................ 21 Some Remarks on the Terminology in this Chapter.......................................... 28 Principles of Good Governance: The Theoretical Perspective ......................... 30 The Origins of the Principles of Good Governance in the Netherlands ......... 36 The Developments of the Parameters of ‘Principles of Good Governance’ in Dutch Administrative Law............................................................................... 39 The Legal Dimension of Principles of Good Governance in Dutch Administrative Law ............................................................................................... 43 v

Table of Contents

7. 7.1. 7.2. 7.3. 7.4. 8.

The Principles of Good Governance Compared: in the Netherlands and in the EU .......................................................................................................... 45 Principles of Democratic Administration in the Netherlands and in the EU .......................................................................................................... 46 Principles of Transparent Administration in the Netherlands and in the EU .......................................................................................................... 46 Principles of Human Rights Administration in the Netherlands and in the EU .......................................................................................................... 47 Principles of Accountable and Effective Administration in the Netherlands and in the EU ............................................................................. 47 Suggestions for the Concept, the Contents and the Regulation of the Principles of Good Governance in the EU .......................................................... 47

Luc Verhey Good Governance: Lessons from Constitutional Law................................................ 49 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Introduction ............................................................................................................ 49 The EU as a Multilevel System ............................................................................. 50 EU and National Governments ............................................................................ 52 Good Governance: A Lack of Constitutionalism ............................................... 54 Improving Participation ........................................................................................ 55 Delegation of Legislation....................................................................................... 57 Improving the Quality of Legislation .................................................................. 59 The Role of the Commission ................................................................................. 61 Agencies................................................................................................................... 63 Concluding Remarks ............................................................................................. 66

Jan Wouters and Cedric Ryngaert Good Governance: Lessons from International Organizations................................ 69 1. 2. 2.1. 2.2. 2.3. 2.4. 3. 4. 4.1. 4.1.1 4.1.2 4.1.3 4.2. 4.2.1 4.2.2 vi

Introduction ............................................................................................................ 69 International Organizations Preaching Good Governance............................... 70 Some Quotations Concerning Good Governance .............................................. 70 Good Governance as a Borrowing Requirement ............................................... 71 A Survey of the Content of Good Governance for some International Organizations.......................................................................................................... 73 Good Governance: Empowerment, Ownership and Participation.................. 77 A Tentative List of Good Governance Requirements........................................ 78 Good Governance by International Financial Institutions and the WTO....... 80 Good Governance by the World Bank................................................................. 81 World Bank Department of Institutional Integrity ............................................ 82 World Bank Inspection Panel ............................................................................... 83 World Bank Information Disclosure Policy ........................................................ 86 Good Governance by the IMF .............................................................................. 87 IMF Information Disclosure.................................................................................. 87 Independent Evaluation Office of the IMF ......................................................... 91

Table of Contents

4.2.3 4.2.4 4.2.5 4.2.6

Integrity within the IMF ........................................................................................ 92 Selection of the Managing Director of the IMF .................................................. 92 Reforming the IMF Decision Making Process .................................................... 94 Political Oversight of the IMF: the International Monetary and Financial Committee ............................................................................................................... 96 4.3. The WTO ................................................................................................................. 97 4.3.1 The WTO’s Good Governance Acquis ................................................................ 97 4.3.2 Parliamentary and Civil Society Involvement in the Work of the WTO ........ 99 4.3.3 Enhancing the Transparency of WTO Dispute Settlement............................. 100 5. Concluding Remarks ........................................................................................... 102 II.

INSTITUTIONAL FRAMEWORKS

Ellen Vos The Role of Comitology in European Governance ................................................... 107 1. 2. 3. 4. 5. 5.1. 5.2. 5.3. 5.4. 6.

Introduction .......................................................................................................... 107 The Revival of the Community Method............................................................ 109 Comitology and the White Paper on European Governance ......................... 110 ‘In between’: the Commission’s Proposal for Reforming the Committee Procedures in Cases of Co-Decision .................................................................. 112 Comitology and the European Constitution .................................................... 114 The Commission’s View on the Future Role of Comitology .......................... 114 The Introduction of a Hierarchy of Norms ....................................................... 114 Delegation versus Implementation? .................................................................. 116 Reforming the Institutional Balance of Powers................................................ 118 The Future of Comitology ................................................................................... 121

Ronald van Ooik The Growing Importance of Agencies in the EU: Shifting Governance and the Institutional Balance ........................................................................................ 125 1. 2. 2.1. 2.2. 2.3. 2.4. 3. 3.1. 3.2. 3.3. 4. 4.1. 4.2. 5.

Introduction .......................................................................................................... 125 The Place of Agencies in the Union’s Legal Order .......................................... 128 Establishment and Legal Basis ........................................................................... 128 Legal Personality and Internal Structure .......................................................... 132 The Definition of an Agency in the Context of the European Union ............ 134 Language Regime................................................................................................. 137 Functions and Tasks of European Agencies ..................................................... 139 Information-Collecting Agencies ....................................................................... 139 Regulatory Agencies: Application of Community Rules in Specific Cases.. 142 Operational or Executive Agencies.................................................................... 144 Supervising the Acts and Measures of the Agencies....................................... 145 Non-Judicial Supervision .................................................................................... 145 Judicial Supervision by the European Court of Justice ................................... 146 EU Agencies and the Meroni Principle of Institutional Balance..................... 149 vii

Table of Contents

5.1. 5.2. 6.

The Court’s Task of Safeguarding the EC Institutional Equilibrium ............ 149 Linking Meroni to Present-Day ‘Agencification’ Processes ............................ 150 Final Remarks ....................................................................................................... 152

Amaryllis Verhoeven Democratic Life in the European Union, According to its Constitution............... 153 1. 2. 3. 3.1. 3.2. 3.3.

3.5. 4.

Introduction .......................................................................................................... 153 Democratic Legitimacy beyond the Nation State: Starting Points................. 155 What does the European Constitution say about Democracy?...................... 158 A New Title on ‘the Democratic Life of the Union’ ......................................... 159 The Council between Diplomacy, Technocracy and Democracy .................. 161 The Commission: a Non-representative ‘Guardian of the General Interest’? ................................................................................................................ 163 In Search of Legitimacy without Representation: ‘Governance’ as a Magic Formula? ................................................................................................. 167 The Principle of Participatory Democracy ........................................................ 168 Concluding Evaluation........................................................................................ 171

III.

SUBSTANTIVE FRAMEWORKS

3.4.

Michiel Heldeweg Good Environmental Governance in the EU: Lessons from Work in Progress? . 175 1. 1.1. 1.2. 1.3. 2. 2.1. 2.2. 2.3. 2.4. 2.5. 3. 3.1. 3.2. 3.3. 4. 4.1. 4.2. 4.3. 4.4. 4.5. 5. 5.1. viii

Introduction .......................................................................................................... 175 Relevance of the White Paper ............................................................................. 175 Focus on Legal Policies ........................................................................................ 176 Perspective ............................................................................................................ 177 Good Governance................................................................................................. 178 The Principles of Good Governance .................................................................. 178 The Concept of Good Governance ..................................................................... 178 The Theory of Good Governance ....................................................................... 179 Shifts? ..................................................................................................................... 180 Focus ...................................................................................................................... 181 Coherence .............................................................................................................. 181 Sustainability and Integration ............................................................................ 182 Coherence and IPPC ............................................................................................ 184 Summing Up ......................................................................................................... 185 Effectiveness.......................................................................................................... 186 Strategic EC Environmental Policy Perspective............................................... 186 Proportionality...................................................................................................... 188 Interplay and Implementation............................................................................ 189 Exemplars .............................................................................................................. 192 Summing Up ......................................................................................................... 194 Accountability....................................................................................................... 195 Principles ............................................................................................................... 195

Table of Contents

5.2. 5.3. 6. 6.1. 6.2. 6.3. 6.4. 6.5. 6.6. 7. 7.1. 7.2. 7.3. 7.4.

Procedures............................................................................................................. 197 Summing up.......................................................................................................... 199 Openness and Participation ................................................................................ 199 Impact Assessment............................................................................................... 200 Public Access to Environmental Information ................................................... 201 European Environment Agency......................................................................... 202 IPPC; Participation, Access to Justice and NGOs............................................. 202 The Member States Perspective.......................................................................... 204 Summing up.......................................................................................................... 205 A Governance Shift under the New Constitution? .......................................... 205 Following or Setting a Trend? ............................................................................ 206 Barriers to a Shift in Governance........................................................................ 206 Aspirations for a Shift in European Environmental Governance .................. 210 Summing up.......................................................................................................... 212

Ramses Wessel Good Governance and EU Foreign, Security and Defence Policy ......................... 215 1. 2. 2.1. 2.1.1 2.1.2 2.1.3 2.2. 3. 3.1. 3.2. 4. 4.1. 4.2. 4.3. 5. 5.1. 5.2. 5.3. 6.

Introduction .......................................................................................................... 215 Parliamentary Control of CFSP Decision Making ........................................... 217 The Competences of the European Parliament ................................................ 217 The Emergence of Parliamentary Scrutiny at the European Level................ 217 Current Competences of the European Parliament in CFSP .......................... 219 Budgetary Influence of the EP on CFSP: The ‘Power of the Purse’ ............... 224 The National Parliaments and CFSP.................................................................. 225 Transparency of Decision Making and Access to Information ...................... 228 Transparency of Decision Making by the Council........................................... 228 Access to Information on Foreign, Security and Defence Policy ................... 229 Judicial Scrutiny of CFSP Decisions and Procedures ...................................... 234 The European Court of Justice............................................................................ 234 The National Courts............................................................................................. 239 The International Court of Justice ...................................................................... 242 Good Governance as a Substantive Foreign Policy Objective........................ 244 Use of ‘Formal’ CFSP Legal Bases...................................................................... 244 Use of ‘Informal’ CFSP Legal Bases ................................................................... 246 Use of Community Competences....................................................................... 249 Conclusion............................................................................................................. 249

Steve Peers Governance and the Third Pillar: The Accountability of Europol......................... 253 1. 2. 3. 4. 5.

Introduction .......................................................................................................... 253 Overview of the Institutional Framework ........................................................ 254 The Legal Framework of Europol ...................................................................... 255 Legislative Accountability................................................................................... 257 Judicial Accountability ........................................................................................ 260 ix

Table of Contents

6. 7. 8. 8.1. 8.2. 9.

x

Operational Accountability................................................................................. 261 External Relations of Europol ............................................................................. 262 Reform of the Europol Framework .................................................................... 269 Amending the Europol Convention .................................................................. 269 The EU Constitutional Treaty ............................................................................. 273 Conclusions ........................................................................................................... 275

Conceptual, National and International Legal Frameworks

Deirdre Curtin Ige Dekker*

GOOD GOVERNANCE: THE CONCEPT AND ITS APPLICATION BY THE EUROPEAN UNION

1.

Introduction

Scholarly search for a governance system that works is as old as the idea of government itself. Despite considerable efforts through the ages at defining the terms ‘governance’ and ‘good’ they remain both elusive and contested. The past year has seen the launch at the level of the European Union of an extensive debate on the concept of ‘governance’ in the context of EU decision making. This process resulted in a White Paper on European Governance by the European Commission,1 published in July 2001. The White Paper quickly triggered extensive comments from a multifarious actor set: from (third-country) governments to parliaments and from nongovernmental organizations to scholars.2 In general terms, one could say, these comments welcome the White Paper as such but conclude by critically saying that it is not or even far from satisfactory in terms of the depth of the analysis.3 This is certainly also true for the comments from the scientific community that have in most ∗

1

2

3

Professor of European and International Governance, Utrecht School of Governance; Senior Lecturer, Law of International Organisations, Europa Institute, University of Utrecht. The authors wish to thank Lavinia Baciu for research assistance. European Governance, A White Paper, Brussels, 25 July 2001, COM(2001) 428 final (hereinafter: White Paper). The European Commission established a separate web-site on the issue of Governance in the European Union: . Public consultation on the White Paper closed on 31 March 2002. The Commission received the total of 232 contributions, from them 29 per cent were from political/public authorities, 22 per cent from organized civil society, 22 percent from socio-economic actors, 15 per cent from academics and 12 per cent from individuals. Six Member States, the European Parliament, the Economic and Social Committee and the Committee of the Regions also submitted responses, as did the United States. Source: European Commission: Newsletter 8: ‘European Governance: White Paper process gathers momentum’, May 2002, the same web-site. See in particular the critical set of papers in: C. Joerges, Y. Meny and J.H.H. Weiler (eds.), Mountain or Molehill? A Critical Appraisal of the Commission’s White Paper on Governance, Jean Monnet Working Paper No. 6/01, full version at .

3

Good Governance: The Concept and its Application by the European Union

cases been written by scholars in political science and public administration.4 The White Paper has, up until now, been much less the subject of discussion from a primarily legal point of view.5 The main reason for the absence of lawyers in the discussion is probably that it may be questioned whether ‘governance’ is a legal concept at all. It is almost certainly a concept that lawyers do not feel comfortable with. This vision is more or less affirmed by the White Paper in that it is almost silent on the legal dimension of ‘governance’, although the notion is defined in a primarily normative way, as meaning ‘rules, processes and behaviour that affect the way in which powers are exercised at European level, particular as regards openness, participation, accountability, effectiveness and coherence’. What is striking is the subjectivity of this definition whereby the Commission effectively incorporates its own agenda into the definition it chooses to use,6 without at any stage making any reference to the many other ways the term ‘governance’ is defined in existing literature7 nor with the practice of other international organizations.8 4

5

6 7

8

4

See, for example, the following papers in the publication cited in the previous footnote: F.W. Scharpf, ‘European Governance: Common Concerns vs. the Challenge of Diversity’; M. Telò, ‘Combiner les instruments politiques en vue d’une gestion dynamique des diversités nationals’; E.O. Eriksen, ‘Governance or Democracy? The White Paper on European Governance’; A. Héritier, ‘The White Paper on European Governance: A Response to Shifting Weights in Interinstitutional Decision-Making’; B. Kohler-Koch, ‘The Commission White Paper and the Improvement of European Governance’. See too: Statewatch, ‘Comments on the Commission’s White Paper on Governance’, 28 March 2002; European Policies Research Centre, University of Strathclyde, ‘Comments on the European Governance White Paper’, March 2002; Jean Monnet Centre, Department of Politics, University of Newcastle upon Tyne, ‘Response to the European Governance White Paper by the European Commission’, March 2002; M. Höreth, The European Commission’s White Paper on Governance: A tool-kit for closing down the legitimacy gap of EU-policy making?’, November 2001; The European Policy Centre, ‘Regulatory Impact Analysis: Improving the quality of EU regulatory activity’, September 2001. See also A.E. Kellermann, ‘The growing impact of the principles of good governance in strengthening the application of the rule of law in European context’, in W.P. Heere (ed.), From Government to Governance, The Growing Impact of Non-State Actors on the International and European Legal System, Proceedings of the Sixth Hague Joint Conference on Contemporary Issues of International Law, The Hague 2003, Asser Press, 2003, p. 83-93. G.P. Orsello, ‘Governance in the European Union’, 31 March 2002; RSC Harvard Law School, ‘Responses to the European Commission’s White Paper on Governance’, 31 March 2002; LSE Study Group on European Administrative Law, ‘Response to the Commission’s White Paper on Governance in the European Union’, 27 March 2002. See too, LSE Study Group on European Administrative Law, supra note 5. See for example, R.A.W. Rhodes, who lists at least six usages: ‘Governance and Public Administration’, in J. Pierre (ed.), Debating Governance, Oxford, Oxford University Press, 2000, chap. 4. See also J. Friedrichs, ‘The Neomedieval Renaissance: Global Governance and International Law in the New Middle Ages’, in I.F. Dekker and W.G. Werner (eds.), Governance and International Legal Theory, Leiden, Martinus Nijhoff, 2004, p. 3-36. OECD has adopted the following definition of good governance: ‘These principles are: respect for the rule of law; openness, transparency and accountability to democratic institutions; fairness and equity in dealings with citizens, including mechanisms for consultation and participation; efficient, effective services; clear, transparent and applicable laws and regulations; consistency and coherence in policy formation; and high standards of ethical behaviour’. See OECD Directorate on Public Administration and Management at . The World Æ

Deirdre M. Curtin

Ige F. Dekker

Given the unclear legal dimension of the notion of ‘governance’, our aim in this article is, first, to examine whether this notion has or can have any legal significance in the legal systems of international organizations, in particular in the legal framework of the European Union. In other words, can the concept of ‘governance’ be an autonomous element of such legal systems and, if so, in what kind of legal category or categories can it be placed? The answer to the last question cannot be other than of a very abstract and tentative nature, due to the fact that the content of the concept of ‘governance’ is not only rather indeterminable but strongly varies in different contexts as well. However, this feature might at the same time constitute the most promising aspect of a legal concept of ‘governance’ in that it can assume the character of a so-called ‘interpretive’ legal concept. According to Dworkin such a concept plays an important role in the legal discourse in a community by structuring different conceptions around a common fundamental value and thus contributing to the development of the legal system of that community.9 These different conceptions are, to a large extent, expressed in the principles connected with the ‘interpretive’ legal concept. The second angle adopted by the present contribution relates to the principles underlying the concept of ‘governance’. As already mentioned, the concept of ‘governance’ as presented by the European Commission, is defined in terms of a set of principles – regarding openness, participation, accountability, effectiveness and coherence – related to the exercise of powers by the institutions of the European Union. These principles (and powers) have, at least to some extent, a legal connotation within the legal system of the Union. The question is, however, whether these principles are the most relevant ones for the public administration of the European Union and – more importantly – whether the legal content of these principles, also in relation to each other, is implicitly covered by the White Paper. Already a general reading of the White Paper reveals that, on the basis of existing analyses of the European legal system and its legal practices, the aforementioned principles have or should have a different meaning and significance than that attributed to them by the European Commission. Moreover when looking at the notion of ‘governance’ more widely (in terms of its use for example by other international organizations), one is struck by the Commission’s rather limited definition of the principles which go to make it up. Within the limited space available, we will for the purposes of this contribution restrict our analysis to those principles most relevant for the legitimacy aspect of ‘governance’: the principles of openness and participation. In the last paragraph we will make some concluding observations as to the potential legal significance of the concept of ‘governance’ for the development of the

9

Bank defines governance as the traditions and institutions by which authority in a country is exercised for the common good. This includes (i) the process by which those in authority are selected, monitored and replaced, (ii) the capacity of the government to effectively manage its resources and implement sound policies, and (iii) the respect of citizens and the state for the institutions that govern economic and social interactions among them. See World Bank Institute on Governance & Anti-Corruption, at: . R. Dworkin, Law’s Empire, Oxford, Hart Publishing, 1998, p. 45-86.

5

Good Governance: The Concept and its Application by the European Union

legal systems of international organizations in general and the European Union in particular.

2.

‘Governance’ as an Institutional Concept of the Legal System of International Organizations

2.1.

Legal Institutions

In earlier publications the present authors analysed the legal system of the European Union on the basis of the conceptual apparatus of the so-called ‘institutional theory of law’.10 According to this theory the main building blocks of legal systems are ‘legal institutions’.11 ‘Legal institutions’ in this sense are not to be seen as a synonym to organizations of organs thereof but can be characterized as distinct legal systems governing specific forms of social conduct within an overall legal system of which they derive their validity. Ruiter defines a legal institution as ‘... a regime of legal norms purporting to effectuate a legal practice that can be interpreted as resulting from a common belief that the regime is an existent unity’.12 In other words, a legal institution does not refer to an existent entity, but to a presentation of a phenomenon that ought to be made true in the form of social practices. Thus, legal institutions have their counterparts in social reality, often referred to as ‘real’ institutions. As Ruiter puts it: ‘… a legal institution is in the first instance a fiction that is subsequently realised by people believing in it and acting upon this belief. It follows i) that human beings must be able to visualise legal institutions and ii) that the existence of legal institutions must be conceivable as inherent in human behaviour’.13

10

11

12 13

6

D.M. Curtin and I.F. Dekker, ‘The EU as a ‘Layered’ International Organisation: Institutional Unity in Disguise’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press, 1999, p. 83-136; D.M. Curtin and I.F. Dekker, ‘The Constitutional Structure of the European Union: Some Reflections on Vertical Unity-in-Diversity’, in P. Baumont, C. Lyons and N. Walker (eds.), Convergence and Divergence in European Public Law, Oxford, Hart Publishing, 2002, p. 59-78. See also: I.F. Dekker and R.A. Wessel, ‘The European Union and the Concept of Flexibility: Proliferation of Legal Systems Within International Organisations’, in N.M. Blokker and H.G. Schermers (eds.), Proliferation of International Organisations, The Hague, Kluwer, 2001, p. 381-414; I.F. Dekker and R.A. Wessel, ‘Governance by International Organizations: Rethinking the Normative Force of International Decisions’, in I.F. Dekker, W.G. Werner (eds.), Governance and International Legal Theory, Leiden, Martinus Nijhoff, 2004, p. 215-236. See N. MacCormick and O. Weinberger, An Institutional Theory of Law, New Approaches to Legal Positivism, Dordrecht, Kluwer, 1986; O. Weinberger, Law, Institution and Legal Practice. Fundamental Problems of Legal Theory and Social Philosophy, Dordrecht, Kluwer, 1991; D.W.P. Ruiter, Institutional Legal Facts, Legal Powers and Their Effects, Deventer, Kluwer, 1993; D.W.P. Ruiter, Legal Institutions, Deventer, Kluwer, 2002. D.W.P. Ruiter, Institutional Legal Facts, Legal Powers and Their Effects, supra note 11, p. 358. D.W.P. Ruiter, ‘A Basic Classification of Legal Institutions’, 10 Ratio Iuris, 1997, p. 363.

Deirdre M. Curtin

Ige F. Dekker

The existence of a legal institution is determined by a set of different so-called ‘institutional rules’.14 These rules relate to the creation and termination of a specific legal institution as well as to the legal consequences the encompassing legal systems attach to such a legal institution. The latter rules regulate which legal norms can or cannot be part of a valid legal institution. A distinction is thus made between the legal institution as a type – also referred to as the ‘institutional legal concept’ – and the instance or token of the concept.15 Legal institutions in the sense of institutional legal concepts – such as the concepts ‘treaty’ and ‘international organization’ – are prerequisites to the specific operationalisation thereof – such as, respectively, for example, the EEC Execution Treaty and the European Patent Organisation. The rules with regard to the establishment, termination and legal consequences of a specific treaty or international organization are part, respectively, of the international law of treaties and the international law of organizations. Apart from these institutional rules, a legal institution has its own legal system, sometimes also called its legal regime. The legal regime functions as the specific legal framework of a legal institution and is in itself in most cases a complex system of different legal rules (norms and principles). The concept ‘legal rules’ is used in the institutional theory of law in a wide sense, encompassing all normative acts which can obtain legal validity in a legal system, such as declarative rules, prescriptive rules, permissive rules, directive rules, assertory rules and expressive rules.16 Besides these legal rules, the legal regime of an institution includes legal competences, rules conferring legal powers on an organ of the institution to create legal rules. Through legal competences, a specific legal institution can develop its own institutional legal system with the purpose to regulate further its own practice. With regard to complex legal institutions the concept of legal unity, as used in the definition of a legal institution, becomes important. Its main purpose is to indicate that the institution can be dealt with as an autonomous element within the over-all legal system and that it can be distinguished from other legal institutions within that system. Secondly, the unity character of a legal institution implies that its legal regime has to be coherent. However, coherence in a legal sense is not an absolute standard. The required character and degree of coherence will vary from legal institution to legal institution. With regard to the unity aspect of legal institutions, the so-called ‘interpretive concepts’ form a special category of legal institutions. The main function of these types of legal institutions is to structure around a basic idea the different interpretations of that idea held by the members of a community. Ronald Dworkin describes such concepts – of which the concept of ‘law’ is a prime example – as a ‘treelike’ structure: the members of the community ‘agree about the most general and abstract propositions’ of the idea – the trunk of the tree – but ‘disagree about more concrete refinements or sub-interpretations of these abstract propositions’ – the

14 15 16

See N. MacCormick and O. Weinberger, supra note 11, p. 53. Ibidem, p. 54. See, D.W.P. Ruiter, Legal Institutions, supra note 11, p. 62-65.

7

Good Governance: The Concept and its Application by the European Union

branches of the tree.17 The two components of the so-called ‘interpretive attitude’ make clear, on the one hand, that the institution has a certain value independent from its requirements in terms of its rules (principles and norms) and, on the other hand, that the content of these rules has to be interpreted in the light of that value.18 The unity of interpretive institutional legal concepts is to a certain extent paradoxical in nature because the existence of the concept as such is based on the existence of different and competing conceptions of its meaning and content.19

2.2.

‘Governance’ as a Legal Institution

Legal institutions refer to entities – subjects and objects –, to properties of these entities – qualities and status, and to connections between entities. On the basis of these distinctions, Ruiter developed a classification of seven legal institutions.20 Two of them seem to be prima facie relevant in analysing the notion of ‘governance’ as an element of the legal system of international organizations. First, ‘governance’ can be seen as a ‘legal quality’, that is a kind of property of a legal person. Of course, not all properties of subjects are legal institutions; such properties have to be structured as legal regimes. It seems that the notion of ‘governance’ used by the European Commission, as far as it is conceived of as a normative concept, primarily falls within this category of legal institutions. It describes a number of basic characteristics of the functioning of the European Union (and its institutions and organs) by stating that the exercise of powers at the European level are governed by ‘rules, processes and behaviour’ relating to ‘openness, participation, accountability, effectiveness and coherence’. The central aim of the concept, it seems, is to provide a framework in which several distinctive principles in a useful way can be related to each other. In that, the definition used by the Commission reveals, at the same time, another form of a legal institution, namely an institution focussing on the decision making processes and relations within the European Union and the relations of the organization with third parties. This kind of legal institution is called a ‘personal legal relationship’, emphasizing the legal connection between the organs and other actors within the legal system of the Union. Both perspectives on ‘governance’ as a legal institution have their value. As a legal quality, ‘governance’ is primarily perceived of as an actual state of affairs, whereas through the perspective of ‘governance’ as a (complex) system of legal connections between subjects the continuity in legal regimes is emphasized. It is revealing that the European Commission seems to highlighten the 17 18 19

20

8

R. Dworkin, supra note 9, p. 70. See idem, p. 47-48. See for an interesting analysis of one of the basic notions in international law from this point of view: W.G. Werner, ‘State Sovereignty and International Legal Discourse’, in I.F. Dekker and W.G. Werner (eds.), Governance and International Legal Theory, Leiden, Martinus Nijhoff, 2004, p. 125-158. Legal persons (subjects), legal objects (‘goods’), legal qualities (property of subjects), legal status (property of objects), personal legal relationships (connection between subjects), legal configurations (connection between objects), and objective legal relationships (connection between subjects and objects). See D.W.P. Ruiter, Legal Institutions, supra note 11, p. 102-115.

Deirdre M. Curtin

Ige F. Dekker

first perspective of ‘governance’ and thereby placing itself in the centre of the European governance structure, whereas for the other actors on the European front the legal institution of ‘governance’ creates in the first place a system of prescriptive, permissive and directive rules and competences between them. The latter perspective is more clearly expressed in, for instance, the definition of ‘governance’ used by the United Nations Commission for Global Governance: ‘Governance is the sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interests’.21

Apart from the usefulness of such an almost all-inclusive definition, it directs the attention to essential characteristics of the legal regime of ‘governance’ as a legal institution, namely the fact that the subjects who are part of that regime not only have legal powers in relation to other subjects but are also accountable for the performance of such powers vis-vis each other. It may be concluded that ‘governance’ potentially can be seen as a legal concept – in at least two different forms – and therefore as a possible element in the legal system of international organizations in general, and that of the European Union in particular. However, the question is whether at this moment in time one can point to a legal rule constituting the legal concept of ‘governance’ for international and European organizations. Although the concept of ‘governance’ is widely used in reports and other policy documents produced within international organizations, these analyses have yet not resulted in substantial modifications of the constituting treaties of international organizations. Even in the Treaty establishing a Constitution for Europe, ‘governance’ as such is not mentioned as one of the fundamental values or objectives of the organization. However, it is certainly not excluded that a general legal concept of international and/or European ‘governance’ in due time will emerge. The fact that so many analyses and discussions within international political and economic organizations nowadays are centred on the notion of ‘governance’ may result in the coming into being of a constitutive rule of the legal concept of ‘governance’. Such a constitutive rule can be laid down in international treaties, but can also have an international customary character. The latter path is, to a certain extent, already discernible in the practices of several international organizations but the necessary articulation of the legal constitutive rule itself (in particu21

Commission for Global Governance, Our Global Neighbourhood, Oxford, Oxford University Press, 1995, p. 2. See also the report of the Secretary General of the United Nations on the work of the Organization in which he appears to consider ‘good governance’ as an overarching concept: ‘By good governance is meant creating well-functioning and accountable institutions – political, juridical and administrative – that citizens regard as legitimate, through which they participate in decisions that affect their lives, and by which they are empowered. Good governance also entails a respect for human rights and the rule of law generally’. UN Document A/53/1, para. 114.

9

Good Governance: The Concept and its Application by the European Union

lar the requirement of the opinio iuris) is up till now still lacking – as is, with respect to the European Union, clearly evidenced in the White Paper of the European Commission. If the concept of ‘governance’ were introduced in the legal system of international organizations, its most useful feature would be if the concept could function as an ‘interpretive concept’ in the Dworkian sense stated above. This development will only takes place on the condition, first, that the international and/or European community actually believes that the concept of ‘governance’ has an independent value or, in the words of Dworkin, ‘serves some interest or purpose or enforces some principle – in short, that it has some point – that it can be stated independently of just describing the rules that makes up the practice’.22 And secondly, the international community must be aware that the rules which are implied from the institution of ‘governance’ ‘are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point’.23 In other words, the concept of ‘governance’ must has its own legal value, must be more than the sum of the principles and rules regularly associated with it (such as the principles mentioned in the White Paper of the Commission).24 Whether this process of the development of an interpretive concept of ‘governance’ on the basis of different conceptions of the meaning and content of the concept is underway is difficult to say. It implies at the very least a thorough examination of the practices of international organizations with regard to the interpretation and application of rules underlying the concept of ‘governance’. As a first step, in the next paragraph we will go into – and limit ourselves – to an analysis of legal practices as to the principles directly connected with the decision making processes of the European Union: the principles of openness and participation.

3.

The Principles of ‘Governance’: Openness and Participation in the Legal System and Practices of the European Union

3.1.

The Meaning of ‘Governance’

During the run-up to the publication of the White Paper on European Governance in July 2001 the Commission consulted very widely with external experts and so-called satellite ‘new players in Europe’,25 maintaining on-line contact with the public via its – by its own standards- extensive – web-site, combing inter alia scientific litera22 23 24

25

10

R. Dworkin, supra note 9, p. 47. Idem. See for a different approach – starting from the concept of accountability with the principle of good governance as one of its elements – the Final Report of the Committee on Accountability of International Organizations of the International Law Association, accepted at the Berlin Conference, 2004: . The term used by the Governance Team in its ‘Report to the Commission: Consultations conducted for the preparation of the White Paper on Democratic European Governance’, June 2001 (SG/8533/01-EN).

Deirdre M. Curtin

Ige F. Dekker

ture for a ‘magic cure’26 as well as conducting exhaustive in-house discussions. The assumption for much of the process seemed to be that the Commission could find just that ‘magic’ formula – ‘governance’ – which would enable it to transform the future of democracy in the EU (the sub-text, both literally and figuratively from the beginning of the White Paper process). In the final analysis its focus however shifted in what could not be considered a very innovative fashion to that of rediscovering and re-invigorating its own role in the decision making process of the European Union in general. This focus has since been reaffirmed on several occasions since the publication of the White Paper27 and most particularly in the recently published communication, inter alia addressed to the Convention on the Future of Europe, A Project for the European Union.28 Although the European Commission seemed at first to be interested in and receptive to a substantive discussion on the different and competing conceptions of ‘governance’, this initial impression is belied by the actual text of the White Paper itself. It is clear from the outset of the White Paper that the Commission is seeking to cast its ‘principles’ of governance in the garb of renewing the traditional ‘Community method’.29 This certainly may be one of the possible conceptions of ‘governance’. But what is disappointing is that the choice for this option is not explicitly founded in terms of the concept or conceptions of ‘governance’, although the White Paper suggests – already by its title – that that would be the case. Now one is left with the scarcely interesting suggestion that the only reason for the choice by the Commission for the ‘Community method’ as its conception of ‘governance’ is to protect its own interests. Furthermore the Commission, despite the broad title of its White Paper (‘of the European Union’) pays no attention whatsoever to the newer areas of policy making in that context (security and defence policy and justice and home affairs) and the perhaps qualitatively different – or varied – nature of ‘governance’ taking place in these critically important policy areas. In terms of the manner in which the Commission analyses the principles of ‘governance’ and interprets the practice of such these principles, the content of the White Paper contributes very little to the development of a legally relevant concept of ‘governance’ as such. Towards the end of its White Paper, the Commission lets slip – almost inadvertently, one suspects – that it views these principles as ‘political’ principles rather than in any sense legal principles already embodied in the Treaties and in the legal order of the EU. This failure to discuss and build on the normative status quo even with regard to the (limited) number of principles it discusses is a 26 27

28

29

White Paper, p. 3 and 9. See: Speech by Romano Prodi, ‘The European Union and its citizens: a matter of Democracy’, European Parliament, Strasbourg, 4 September 2001 (SPEECH 01/365); Speech by Romano Prodi, Introduction to the debate on governance at the plenary sitting of the European Parliament, Strasbourg, 2 October 2001 (SPEECH 01/427); Communication on the future of the European Union – Renewing the Community Method, 5 December 2001, (COM(2001) 727 final); Communication from the Commission, ‘A Project for the European Union’ Brussels, 25 May 2002 (COM(2002) 247 final). Communication from the Commission, ‘A Project for the European Union’ Brussels, 25 May 2002 (COM(2002) 247 final). White Paper, p. 4.

11

Good Governance: The Concept and its Application by the European Union

striking aspect of the White Paper and one that invites further reflection. In so doing we have chosen to focus on two of the five principles in particular: the principles of openness and of participation.

3.2.

The Principle of Openness

The White Paper tries to address the (il-)legitimacy of EU decision making by emphasizing the principles of openness and of participation. It prioritizes these particular principles in the solutions it purportedly brings to bear but – extraordinarily – it does so largely ignoring the existing institutionalization of these principles. The loose rhetoric employed in the White Paper in working out some shape to these general principles are not embedded in sound legal and institutional frameworks. This is all the more surprising as they are formulated under the specific heading ‘proposals for change’. If one looks first at the principle of ‘openness’ the Commission short-changes the manner in which this principle has already been rendered operational. For example, it speaks of providing ‘up-to-date, on-line information on preparation of policy through all stages of decision making’ and in another place baldly states: ‘major progress has been made in 2001 with the adoption of new rules giving citizens greater access to Community documents’.30 This is in terms of more openness as such of all stages of the policy-making process. This approach almost beggars belief in terms of virtually ignoring the existing hard legal framework and extensive case law of the Court of Justice on the subject.31 Moreover to simply state that the new Regulation adopted in May 2001 constitutes ‘major progress’ ignores the fact that the regulation on the whole simply consolidates the existing legal situation. Moreover, even where change has arguably taken place, these changes have proved controversial with many commentators arguing that its provisions constitute a step ‘backwards’ not forwards in terms of the prior existing legal status quo.32 The provision of up-to-date on-line information as promised by the Commission is partially what it already does and partially what it is under a legal obligation to do upon entry into force of that part of the new regulation on access to docu-

30 31

32

12

White Paper, p. 11. To our knowledge at least two PH.D theses in law have been successfully defended on the subject: M. de Leeuw, Open Government on the European Union: A Legal Analysis of a Fundamental Principle, Defended European University Institute, Florence, September 2001 and R. Davis, Rights and Remedies for Public Access to Documents as an Aspect of Multidimensional Transparency within the EU’, Defended on 24 May 2002, University of Durham, as well as numerous articles in various legal (and other) journals. See, most recently, S. Peers, ‘The New Regulation on Access to Documents: A Critical Analysis’, Yearbook of European Law 2002; D.M. Curtin, ‘Citizen’s Fundamental Right of Access to EU Information: An Evolving Digital Passepartout’, Common Market Law Review, 2000, p. 37; I. Osterdahl, ‘Openness v. Secrecy: Public Access to Documents in Sweden and the European Union’, European Law Review, 1998, p. 23. See for example the extensive analysis made by S. Peers, supra note 31. See too, Statewatch at .

Deirdre M. Curtin

Ige F. Dekker

ments on the provision of registers on-line as and from 3 June.33 The Council – in contrast to the Commission – has been considerably more pro-active in this regard and its Register of its documents34 has proven enormously facilitative of opening up the process of Council decision-taking and rule-making. The real test for the Commission is whether its actions match its rhetoric. It certainly has made some progress in the provision of on-line information. For example, since January 2002 all official documents available in Eur-Lex data-base have been available for consultation free of charge.35 Another on-line service is the Citizens Signpost Service, where since 2002 its legal experts provide, free of charge, personalized reply on questions related to rights in the EU and in Internal Market.36 Two on-line services have been established to give information and advice about rights of the citizens and business in the Single Market, namely Dialogue with Citizens37 and Dialogue with Business.38 In addition a server, called Solvit,39 was designed provide assistance in solving problems by using a network of offices located in the Member States, ‘forcing’ them to co-operate and exchange information with regard to rules of Internal Market. However the fact remains that the approach adopted has been rather fragmentary and provision has not been made for the comprehensive provision of digital information on the various stages in the decision making process to be made available to the public in a pro-active and uniform fashion with co-ordination among the various actors involved?40 Further reflection could usefully have taken place on the need to have objective and independent supervision in a timely and cost efficient manner in the form of more extensive powers of enforcement for the Ombudsman or the creation of a new organ in the form of an Information Commissioner or Information Tribune as has been done in certain leading-edge jurisdictions (for example Australia)? Vague promises of more on-line information shorn of the legal context in which such ‘changes’ must operate and the need to ensure more inde-

33

34

35

36 37 38 39 40

Article 11 (3) of Regulation No. 1049/2001 of the European Parliament and of the Council regarding Public access to European Parliament, Council and Commission documents (30 May 2001), OJ L 145/43. See too the Commission web-site for its new Register, less user-friendly than that of the Council. Not all documents: see complaint by Statewatch to Ombudsman and referral by Ombudsman to European Parliament for recommendation concerning access by Statewatch to copies of the agendas of the ‘Senior Level Group’ and the ‘EU-US Task Force’. Initially, the US government has vetoed the Statewatch request to the Council. . Report from the Commission on European Governance, p. 13 In addition, the Commission Prelex database supplies, in all the languages, information on the progress of the legislative procedure concerning a particular act with hyperlinks to the related texts as well as to OEIL, the European Parliament’s legislative observatory. . . . . See further, D.M. Curtin, supra note 31, p. 37. See however, its subsequent communication on ICT COM(2002) 350 final/2, Communication form the Commission on information and communication strategy for the European Union.

13

Good Governance: The Concept and its Application by the European Union

pendent scrutiny of what is actually being placed on Internet and what is withheld and why does not advance the principle of ‘openness’ much further. The Commission in its White Paper simply ignored the fact that – as the Court of Justice has explicitly ruled – the principle of access to documents applies to all the documents of the EU irrespective of policy-area (the Commission refers to ‘Community’ documents).41 Moreover, even at that time it arguably applied wider than just to the three institutions mentioned in Article 255 EC Treaty (the Commission, the Council and the European Parliament).42 It would have been an area where the Commission in addressing the general problems of EU ‘governance’ could have made a significant effort to redress and clarify the existing situation where a legal obligation is formally placed on only three institutions and not on all the other institutions, organs and bodies operating within the framework of the EU. In its Report on the implementation of Regulation No 1049/2001,43 the analysis covers only the ‘practical experience of the relevant departments within the three bodies’.44 However, the Commission does in fact recognize the limitation of such approach and suggests that the Regulation should be ‘thoroughly revised and it should, at least, be adapted in order to be applicable to all the Union’s institutions, bodies and agencies’.45 This is especially so in the light of the provisions of the Charter on Fundamental Human Rights which are explicitly stated to apply to all the institutions and the organs of the EU and which are having some effect in both legislation and case law of the Court of Justice.46 In fact at the end of the day it might be said that the Commission reduces the problem of openness to one of ‘communication’ where it desires to put the real emphasis. In fact it is the communication policy of the Commission and of the other institutions that, in the words of the Commission, ‘will promote efforts to deliver information at national and local level, where possible making use of networks, grassroots organizations and national, regional and local authorities’. In other words the Commissions preoccupation is effective communication in the sense of information adapted to local needs and concerns. This should, in the Commissions view, be supported by the Member States who promote within their own jurisdictions public debate of European affairs. Whereas a more effective, focussed and inter-active communications policy by the various institutions and organs acting in a 41

42

43

44 45 46

14

See in particular cases T-14/98 Hautala v. Commission [1999] ECR II-2489; C-353/99 P Appeal against the Hautala judgement; T-174/95 Svenska Journalistforbundet v. Council [1998] ECR II2289; T-194/94 Carvel and Guardian Newspapers v. Council [1995] ECR II-2765. See further D.M. Curtin, supra note 31, p. 37. See too the Ombudsman’s own inquiry into public access to documents in the EU at . COM(2004) 45 final, Report form the Commission on the implementation of the principles in EC Regulations No 1049/2001 regarding public access to European Parliament, Council and Commission documents. COM(2004) 45 final, p. 2. COM(2004) 45 final, p. 44. See: Judgement of the ECJ of 6 December 2001 in the case C-353/99 P Appeal against the Hautala judgement [2001]; Opinion of Advocate General Léger in the same case C-353/99 of 10 July 2001; and Judgement of the CFI of 30 January 2002 in the case T-54/99 Max.mobil [2002].

Deirdre M. Curtin

Ige F. Dekker

co-ordinated fashion may indeed be very necessary to ‘generate a sense of belonging in Europe’, it ignores the fact of the changing relationship in general between public administration and the citizens, in particular in the light of advanced ICT. As a result of engaged, albeit non-traditional, political activity citizens not only have much greater motivation to themselves (or via an association or interest group to which they belong) seek out information as to the performance of the public administration, they are thus better placed than ever to scrutinize the manner in which public administration tasks are carried out. Moreover it follows that (large groups of) citizens no longer need or wish to have passive relations with the public authorities but rather wish to play a vigorous part in defining these contacts as they see fit.47 In other words, citizens are themselves developing their role, using the technology offered to them by ICT both in terms of acquiring information and maintaining virtual and horizontal relations with no traditional time and space constraints,48 and are more willing to actively engage on (specific) issues than in times where a more heroic view of politics prevailed. One should recognize the incipient effort of the Commission since the White Paper to contribute to interactive communication with regard to policies of the EU. ICT has become a tool used by the Commission in improving the relations between public administration and citizens, for example, by issuing the Interactive Policy Making (IPM) communication49 which aims to improve governance by using the Internet for collecting and analysing reactions in the marketplace for use in the European Union’s policy-making processes.50 The IMP instruments are available via a new web portal, Your Voice in Europe,51 which is the European Commission’s ‘single access point’ which offers citizens, consumers and business an opportunity to play an active role in the process of shaping Commission policy.52 In this context, the e-Europe 2005 Action Plan was launched with the aim of developing modern public service and a dynamic environment for e-business.53 The European Commission has in addition launched a so-called IDA programme, Portal of the EU Administration, a driving strategic initiative using advantages of ICT to support rapid electronic exchange of information between Member States administrations. Its objective is to improve Community decision making, facilitate operation of the internal market and accelerate policy implementation.54 The portal aims

47

48

49 50 51 52 53

54

ICT and Government Committee, Citizen and Government in the Information Society. The Need for Institutional Innovation, The Hague, September 2001; . Dutch Council for Scientific Advice to the Government, Governments Losing Ground. An Exploration of Administrative Consequences of ICT, The Hague, 1998. IPM-C(2001) 1014. IPM website, . . Report from the Commission on European Governance, p. 12. COM(2002) 263 final, Communication form the Commission, e-Europe 2005: An information society for all. IDA Mission Statement, .

15

Good Governance: The Concept and its Application by the European Union

to become a single access point for all available public on line information and services to assist Europe’s citizen and businesses to carry out cross-border activities.55 In conclusion it can be said that the Commission in its initial discussion on the pivotal principle of openness in its White Paper added little to the existing legal situation and could even be regarded as obfuscating the existing normative status and evolution of this principle. Moreover rather than developing the fact that there are many more organs, bodies and networks involved at various levels and in different policy areas in the processes of EU governance and in pushing out the parameters of the principle of openness in that regard, the Commission sought refuge in rhetoric on the need for more focussed and effective ‘communication’ with citizens so that they can properly ‘understand’ what is happening at the EU level. This smacks more of a patronizing attitude towards the citizens rather than that of an administration trying to understand the manner in which the relationship between public administration and citizen is changing and evolving and how it can best respond to that change. That said it must be acknowledged since the White Paper that a number of not insignificant measures have been taken by the Commission which show a public administration facing up to the need to provide more information in accessible digital form as well as increasing the possibility of greater inter-activity.

3.3.

The Principle of Participation

The decision by the Commission not to deal with the key issues of access to information and the linked question of the communication policies of the institutions pre-determined a fairly marginal role for ‘active’ civil society representatives in genuinely participating in the decision making processes of the EU. It is a rather futile exercise to attempt to pigeonhole as part of an exclusively vertical pyramid of accountability the role of the citizen and their civil society representatives in the manner, which the Commission attempts to do.56 In terms of giving shape and substance to the principle of participation in EU governance the contribution of the Commission only went in the direction of expanding the composition of an advisory and to date fringe–organ, namely the Economic and Social Committee, to include ‘representatives’ of civil society.57 A protocol was signed in which the Commission and the Committee put on record that in the context of establishing new forms of governance, the Committee was ideally suited to become a privileged intermediary between the Union’s institutions and organized civil society.58 In effect the Commission adopts shades of a corporatist approach already incorporated into the Community legal system for the social partners59 and insists

55 56 57 58 59

16

Report from the Commission on European Governance, p. 18. See, for example, White Paper, p. 14 et al. White Paper, p. 15. Report from the Commission on European Governance, p. 17. See the following articles in the publication mentioned in supra note 3: P. Magnette, ‘European Governance and Civic Participation: Can the European Union be politicised?’; D.M. Trubek and J. Mosher, ‘New Governance, EU Employment Policy, and the European Social Æ

Deirdre M. Curtin

Ige F. Dekker

rather monotonously on the need for civil society to be ‘representative’ and transparent or open. The Commission’s idea is to ‘improve the representativity of civil society organizations and structure their debate with the institutions’ by means of a code of conduct setting out minimum standards for such privileged organizations to comply with. The Commission has adopted General principles and minimum standards for consultation of interested parties,60 which applies as from 2003. The overall idea is that by applying these standards it will be possible to know exactly who must contact whom when a new policy is being drawn up, the aim being that all parties affected by the proposal can become more involved, and on a more equal footing, in the process.61 ‘Participation’ is in the words of the Commission ‘not about institutionalizing protest. It is about more effective policy shaping based on early consultation and past experience’.62 The Commission established a database, The European Commission and Civil Society (CONECCS).63 The Commission committed itself to further consultations in exchange for a commitment of ‘civil society’ to ‘tighten up their internal structures, furnish guarantees of openness and representativity and prove their capacity to relay information or lead debates in the Member States’. The White Paper entirely ignored the difficult problem of funding and financing which many NGO’s face. Many NGO’s need to rely on official sources of funding inter alia by the institutions of the EU thus causing problems for their independence and ability to take a truly critical stance on important issues.64 The point is arguably not only the risk that the Commission ‘selects’ according to certain criteria a limited number of Brussels-based NGO’s with sufficient capacity etc., giving it funds, buying its loyalty, but that a golden opportunity is lost to harness the energy, the interest and the engagement of a wide variety of civil society participants who are not necessarily looking for strict ‘participation’ rights as such but rather to engage in a vigorous and dynamic fashion in public debate, where different viewpoints can be heard, deliberated upon and ultimately be decided upon by the formal decision-makers. The Commission’s view of how to give shape to a principle of participation in EU governance is infused with a dogma of the righteousness of a purely top-down approach to ordering and ‘organizing’ civil society. Viewing participation through the spectacles of ordering existing consultation practices enabled the Commission to avoid considering the option of engaging in a greater dialogue with civil society through greater deliberation and opportunity for comment and public debate as the underlying goal, capable of being operationalized by procedural mechanisms of for

60

61 62 63 64

Model’; J. Shaw, ‘European Union governance and the question of gender: a critical comment’. COM(2002) 704 final, Communication form the Commission, Towards a reinforced culture of consultation and dialogue-General principles and minimum standards for consultation of interested parties by the Commission. Report from the Commission on European Governance, p. 15. White Paper, p. 15. . See, A. Warleigh, ‘Europeanizing ‘Civil Society’: NGO’s as Agents of Political Socialization’, 39 Journal of Common Market Studies, 2001, p. 619 and 623.

17

Good Governance: The Concept and its Application by the European Union

example ‘notice and comment’. The Commission did not even mention in its final report the various ideas of proceduralizing participation rights for civil society organizations and individuals as has been done for example with regard to the much more limited field of the environment via the United Nations Aarhus Convention (and recently implemented by the European Community)65 and by analogy with for example the American Administrative Procedures Act 1964.66 The latter incorporates a system of ‘notice and comment’ which has effectively been institutionalized in the provisions of both the Aarhus Convention and the American administrative law system.67 Furthermore such obligations apply widely to all arms and organs of the public administration including independent functional agencies and would have been particularly appropriate for consideration in the context of the developing institutional structures of the wider European Union. Moreover, the principle of participation is not just a matter for civil society but must also be seen in conjunction with wider institutional factors such as the role of parliaments (national and European) and the role of scientific experts etc. in the process of decision making. The Commission has adopted a Communication with regard to the collection and use of expertise.68 These principles and guidelines apply to the Commission departments at all stages of the Commission policy-making,69 in order to ‘help departments to implement the core principles of quality, openness and effectiveness’.70 The guidelines will also apply to consultation taking place through Commissions-established experts groups, but they are outside the formal decision making procedures set out in the Treaty or in secondary legislation.71 The Commissions preferred option is allegedly to drop ‘committees’ and to use more

65

66

67

68

69 70 71

18

The UN Economic Commission for Europe ‘Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’ was adopted on 25 June 1998 in Aarhus, Denmark. It entered into force on 30 October 2001. The European Union has thus far adopted only Regulation 1049/2001 on public access to Parliament, Council and Commission documents (OJ L 145 2001), which does not yet guarantee full application of the Convention to European institutions. In order to do so, the Commission has proposed over the last two years the following legislative proposals: Commission Proposal of 29 June 2000 for a Directive on Public Access to Environmental Information (OJ C 339/156 of 28 November 2001), Commission Proposal of 18 January 2001 for a Directive providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC (environmental impact assessment) and 96/61/EC (integrated pollution prevention and control) – OJ C 154 of 29.05.2001, p. 123. Both laws referred to initially and also in background report. See the report of the working group 2a on ‘Consultation and participation of civil society’ in preparation of the WP, at . See, for example, F. Bignami, ‘The Democratic Deficit in European Community Rulemaking: A Call for Notice and Comment in Comitology’, 40 Harvard International Law Journal, nr.2, 1999, p. 452. COM(2002) 713 final, Communication form the Commission on the Collection and use of expertise by the Commission: Principles and Guidelines. Report from the Commission on European Governance, p. 19. COM(2002) 713 final, p. 2. Report from the Commission on European Governance, p. 19.

Deirdre M. Curtin

Ige F. Dekker

(functional) (independent) Agencies instead.72 Would the Commissions principles of openness and participation apply to them too? Many of the aspects discussed by the Commission under the heading participation in its White Paper could also fall under the notion of ‘good administration’ except that this notion focuses attention on the behaviour of the institutions themselves rather than their interlocutors. Article 41 of the EU Charter on Fundamental Rights explicitly included reference to such a ‘right’, namely for a person to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions (and organs) of the EU. This brief statement is elaborated upon further by the Ombudsman in his Code of Good Administrative Behaviour.73 Despite the overlapping substance of the Commissions White Paper no mention is made either of the Charter or the Code and emphasizes the highly subjective approach taken by the Commission to the issues under consideration. In conclusion it may be said that once more with regard to the principle of participation the Commission eschews a normative approach based in the existing law and practice of the institutions and opts instead for the looser, softer approach of ‘minimum guidelines’. ‘Codes of practice’ and top-down criteria for admission to the Commission’s own web-site on ‘civil society’. Moreover it is extraordinary that given the fact that the Commission is under a legal obligation pursuant to its ratification of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters to implement in the environmental context far-reaching rights of participation fro NGO’s in that domain that no consideration is given to the question of imposing similar requirements more widely, nor indeed the inevitable discrimination that results if far-reaching requirements and opportunities are provided exclusively within the field of environmental decision making and no other in the context of the European Union as a whole. This smacks of a less than serious and whole-hearted and objective approach to the issue of how participation rights could potentially be made operational across the spectrum of EU activity (or not, as the case may be after due consideration).

4.

Concluding Remarks

International organizations, such as the European Union, effectively function as two – independent but related – realities, namely as a legal institution and as a social institution. When attributing certain properties to the functioning of international organizations, one cannot disregard one of the dimensions without running the risk of missing half the story. That is exactly what the Commission in our contention has done in the final version of its White Paper, by neglecting the legal dimension in its analysis of ‘European governance’ and the requirements that can potentially be derived from that concept. Moreover the Commission should have better embedded 72

73

The Commission subsequently adopted a framework for regulatory agencies COM(2002) 718 final, Communication from the Commission, The Operating framework for the European Agencies. Available in full on the Ombudsman’s homepage at .

19

Good Governance: The Concept and its Application by the European Union

its choice of the latter requirements or principles in existing thinking on the subject and in the pre-existing normative framework. Why no mention of the ‘rule of law’ for example? And what about the promotion of human rights? And why was the notion of ‘accountability’ not given a much more central place in its considerations? It is too early to draw a firm conclusion as to whether the concept of (international and/or European) ‘governance’ will indeed develop into a firmly based element of the legal system of international (global and/or regional) organizations. It cannot however at this stage in the debate be excluded that the notion of ‘governance’ in the sense it is currently being used will prove no more than a convenient ‘catch-phrase’ in vogue in a particular context whose days are numbered by zapping politicians (and bureaucrats) whose attention quickly turns to a newer, trendier, ‘sound-byte’ to catch their fluid ideas. If this Cassandra-like interpretation is proven wrong over the course of time then the concept of ‘governance’ has indeed as such the potential to become a fairly central concept in the legal system of international organizations (or the law of international public administration). But its potential lies, in our view, in its function as an ‘interpretative’ concept in the Dworkian sense, structuring (international) legal discourse on the fundamental principles of ‘democratic and accountable’ international organizations rather than the stricter sense of constituting a fixed and rigid standard for the functioning of such organizations.

20

Henk Addink*

PRINCIPLES OF GOOD GOVERNANCE: LESSONS FROM ADMINISTRATIVE LAW

1.

Introduction

In July 2001, the Commission’s White Paper on European Governance was published in which the principles of good governance were explained and in which the consequences were elaborated by concrete points of action.1 This was not however the start of the good governance discussion at the European level since various contributions on the subject had already been made several years earlier.2 For example, already in 1991, the EU Council of Ministers provided a brief description of the contents and the importance of good governance in a resolution on Human Rights, Democracy and Development:3 ‘The Council stresses the importance of good governance. While sovereign states have the freedom to institute their own administrative structures and establish their own constitutional arrangements, equitable development can only effectively and sustainably be achieved if a number of general principles of government are adhered to: sensible economic and social policies, democratic decision-making, adequate governmental transparency and financial accountability, creation of a market-friendly environment for development, measures to combat corruption, as well as respect for the Rule of Law, human rights and freedom of the press and expression’.



1 2

3

Associate Professor of Constitutional and Administrative law at Utrecht University and coordinator of the LLM Comparative Public Law and Good Governance. He would like to thank his colleagues Juliette van der Jagt, Kamiel Mortelmans, Kees Quist and Wouter Werner for their suggestions. . M.P. Chiti, ‘Are there Universal Principles of Good Governance?,’ 1 (2) European Public Law, 1995, p. 241–258; J. Schwarze, ‘Towards a Common European Public Law’, 1 (2) European Public Law, 1995, p. 227–239. Resolution of the European Council of Ministers on 28 November 1991, in W.J.M. Genugten and Th. R.G. van Banning (eds.), Human Rights Reference Handbook, The Hague, Ministry of Foreign Affairs, 1999, p. 97 and p. 196-198.

21

Principles of Good Governance: Lessons from Administrative Law

The year 1996 had already seen the publication of a book entitled ‘Principes Généraux du droit en droit communautaire. Origines et concrétisation’ in which the general principles of law within EU law were elaborated in different groups: explicit principles, implicit principles and silent principles.4 As part of the latter group attention was paid in a special chapter to ‘Le principe de bonne administration’.5 This chapter discussed some decisions of the Court of Justice in which this principle was mentioned. The conclusion was – and this is very crucial for the further development of the ideas on principles of good governance – that the principles of good administration could be used even in situations where there is an absence of written rules. Advocate General Van Gerven wrote in his conclusion to one of the cases: ‘l’absence de garanties écrites n’empêche pas la Commission d’élié, dans ses interventions, par les principes généraux du droit communautaire, dont le principe de bonne administration’.6

In 1998 and 1999 (but also later) judgements of the Court of Justice were published in which the term ‘principles of good administration’ was used by the Court.7 In 1997 the European Ombudsman provided a definition of maladministration in his annual reports, in 1999 he recommended a draft Code of Good Administrative Behaviour and in the period between September 6, 2001 and May 3, 2002 the European Ombudsman used the terms ‘Principles of Good Administration’ or ‘Good Administrative Behaviour’ in 25 reports.8 In August 1999 a conference was held in Malmö on ‘General Principles of European Community Law’. The fundamental purpose of this conference was to analyse the general principles, their scope in the EU legal order and their impact at the national level; a rather top-down European law approach. Reports on general aspects, human rights, institutional principles and some individual principles and legal systems were later published in the book entitled ‘General Principles of European Community Law’.9 During the conference attention was paid to ‘Securing the Principle of Good Administration within the Community Institutions’.10 One of the 4

5 6

7

8

9

10

22

R.-E. Papadopoulou, Principes Généraux du droit en droit communautaire. Origines et concrétisation, Athene/Brussels, Sakkoulas/Bruylant, 1996. Ibidem, Chapter IV, p. 127-132. Court of Justice February 12, 1992, C-48/90 and C-66/90, Netherlands et al. v. Commission, 1992, I, p. 627, conclusion by Van Gerven, p. 589. Case C-252/96, Parliament v. Gutierrez de Quijano y Llorens, 19-11-1998; Case C-119/97, UFEX et al. v. Commission; Case T-127/98, UPS Europe v. Commission, 09-09-1999. Also recently in the Case T-333/01, Meyer v. Commission, 13-02-2003 these terms were used; the Court also sometimes speaks of ‘Maladministration’, see C-472/00, Commission v. Fresh Marine Company, 10-07-2003. K. Fennel, ‘The European Ombudsman’s Code of Good Administrative Behaviour’, in Principles of Good Governance (reader course on Principles of Good Governance II, Utrecht, September 2003, p. 5.31–5.87), Utrecht, Utrecht University, 2003, p. 5.41. U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law, The Hague, Kluwer Law International, 2000. H. Ragnemalm (member of the European Court of Justice), ‘Leading by Example or Learning on Supremacy? Some reflections on the Union, the Individual and the Protection of FundaÆ

Henk Addink

conclusions of the conference was that the role of comparative law in the process of developing general principles should not be underestimated.11 In my opinion this should not only be the case in external relations between the European level and the national level, but an internal comparison between the European institutions should also be made.12 It is interesting to see that in the White Paper, the Commission has mentioned and developed five principles of good governance: openness, participation, accountability, effectiveness and coherence. But also earlier – in the White Paper on Administrative Reform that was adopted by the Commission on 1 March 200013 – key principles of a European public administration were stressed and these are service, independence, responsibility, accountability, efficiency and transparency; these elements were elaborated in a rather limited14 way in the Commission’s Code of Good Administrative Behaviour.15 So it is important to conclude that not only the European judiciary and the European Ombudsman, but also the European Administration (i.e. the European Commission and the Council of Ministers),16 make use of principles of good governance. The restrictive statement by the European Commission that the application of these principles reinforces the principles of proportionality and subsidiarity is

11

12

13

14

15

16

mental Rights, para. 2.1.3 Securing the Principle of Good Administration within the Community Institutions’, in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law, 2000, The Hague, Kluwer Law International, Kluwer Law, p. 54-57. J. Nergelius, ‘General Principles of Community Law in the Future: Some Remarks on their scope, Applicability and Legitimacy’, in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law, The Hague, Kluwer Law International, Kluwer Law International, 2000, 223-232; T. Koopmans, ‘General Principles of Law in European and National Systems of Law’ in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law, The Hague, Kluwer Law International, Kluwer Law International, 2000, 25-34. See the overview of the case law of the European Ombudsman in comparison with the European Code of Good Administrative Behaviour: K. Fennel, supra note 8, p. 5.31–5.87. For comparison see Principles of Good Governance in case law of the European Court of Justice/ Court of First Instance and European Ombudsman: M. Oldenziel, Principles of Good Governance in Community Law, thesis Utrecht University, Utrecht, Utrecht University, 2003, Utrecht. COM(2000)200, volume I and II; . See the critical remark by the European Ombudsman in his speech at the International Seminar entitled The Ombudsmen and the European Union Law, Bucharest, April 2001. Adopted by the Commission on 13 September 2000 and which contains norms in relation to General Principles of Good Administration (lawfulness, non-discrimination and equal treatment, proportionality and consistency), Guidelines for Good Administrative Behaviour (objectivity and impartiality, information on administrative procedures), Information on the rights of interested parties (listening to all parties with a direct interest, duty to justify decisions, duty to state arrangements for appeals), Dealing with enquiries (requests for documents, correspondence, telephone communication, electronic mail, requests from the media), Protection of personal data and confidential information and Complaints procedures (European Commission and European Ombudsman). Decision of the Secretary-General of the Council on a code of good administrative behaviour: Pb. C189/1, 5-7-2001.

23

Principles of Good Governance: Lessons from Administrative Law

remarkable; in my opinion there is a broader legal effect – as illustrated here – than the mere reinforcement of these two principles. After publication there was criticism in the literature concerning the notion of good governance as used in the White Paper because it was not defined.17 On the other hand, (good) governance could also be seen, as Curtin and Dekker argue in their contribution in this publication, as a Dworkian ‘interpretive’ legal concept, structuring different conceptions around a common fundamental value.18 This article provides an elaboration of the legal principles which are connected with good governance, expressing different conceptions of principles of good governance. However, there is more on the European level which, from a broader perspective, is relevant for the discussion on the concept of the principles of good governance in relation to ‘Good Governance and the European Union’. On September 6, 2001, the European Parliament adopted a resolution containing the ‘Code of Good Administrative Behaviour’ which European Union institutions and bodies, their administrations and their officials should respect in their relations with the public. This Code is based on the work of the European Ombudsman on maladministration.19 Maladministration occurs when a public body fails to act in accordance with a rule or principle that is binding upon it.20 The Code specifies principles such as the absence of discrimination (Art. 5), proportionality (Art. 6), absence of abuse of power (Art. 7), impartiality and independence (Art. 8), objectivity (Art. 9), legitimate expectations, consistency and advice (Art. 10), fairness (Art. 11), courtesy (Art. 12), right to be heard and to make statements (Art. 16), a reasonable time-limit for taking decisions (Art. 17) and the duty to state grounds for decisions (Art. 18). Compared with the Commission’s Code of Good Administrative Behaviour, the Ombudsman’s Code is clearer and contains more details and is therefore more developed. The Ombudsman’s Code contains, in essence, the classical basic substantive and procedural principles of administrative law (rights of the defence, grounds for decisions, non-discrimination, impartiality, possibility of appeal, etc.), as well as some rules of good administrative functioning (sending an acknowledgement of receipt, transferring a file to the competent service, and an indication of the responsible official). But both types of norms are, because of their legal status, part and parcel of the principles of good governance. The Code develops the fundamental rights of citizenship – including relations with the administration – in the ‘Charter of Fundamental Rights of the European

17

18

19

20

24

See, for example, LSE Study Group on European Administrative Law, Taking Governance Seriously, para. 1, March 2002, . D.M. Curtin and I.F. Dekker, ‘Good Governance: The Concept and its Application by the European Union’, elsewhere in this volume. The 1995 Annual Report of the European Ombudsman provided a non-exhaustive list of examples of maladministration; in November 1998 the Ombudsman, on his own initiative, launched an inquiry so that all Community institutions and bodies could adopt a Code of Good Administrative Behaviour. Definition in the 1997 Annual Report of the European Ombudsman.

Henk Addink

Union’ proclaimed at the Nice summit in December 2000.21 In February 2000 the European Ombudsman called for the Charter to include, alongside the so-called ‘classical’ fundamental rights, also the rights of citizens to an open, accountable and service-minded administration.22 In Chapter V (Citizen’s rights) of the Charter, Article 41 includes the ‘right to good administration’, which provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable period of time by the institutions and bodies of the Union. This right includes, in particular, the right of access to one’s own file, and the obligation of the administration to give reasons for its decisions: the right of everybody to good administration.23 Alongside the right to good administration, the Charter includes the right of access to documents (Art. 42), the right to complain to the European Ombudsman (Art. 43) and the right to petition the European Parliament (Art. 44). Contrary to what some may think and considering the debate as to the legally binding character of the Charter, one should note that the Charter has already started to inspire the Community institutions and bodies. This is the case for the Parliament and the Commission, which have both published communications in which they indicate that they will respect the Charter in their activities. Finally, the Court of Justice and the European Ombudsman have also started to refer to the Charter. For the moment it is the advocates general at the Court who, in their opinions, invoke the Charter. A detailed analysis of the database of the Court of Justice shows that 15 opinions have already referred to the Charter.24 The next step in the evolution of the Charter is its insertion in the Treaties.25 Article 41 of the Charter is simply a non-exhaustive enumeration of the basic principles of good administration. In order for the right to good administration to become effective for the citizen, it is clear that European administrative legislation with norms of good administration should be adopted. There is an additional reason for such an administrative regulation on good governance. The diversity in the Codes which have been adopted by the various Community institutions and bodies could give rise to confusion; we have already seen the clear difference between the Commission’s Code and that of the Ombudsman. In April 2000 the Ombudsman prepared a special report for the European Parliament in which it was recommended that, in order to have rules of good administrative behaviour equally applicable to all Community institutions and bod-

21

22

23 24

25

In the Treaty of Amsterdam in 1997 (Article 6.2 of the Treaty on European Union) the EU undertook to respect the fundamental rights as guaranteed by the ECHR as general principles of Community Law. Speech on 2 February 2000 to the Convention responsible for drafting the Charter, under the presidency of Roman Herzog. P. Millet, ‘The right to good administration in European law’, Public Law, 2002, p. 309–322. O. Verheecke, The role and activities of the European Ombudsman, lecture on 29 April 2002, Brussels. In the Treaty establishing a Constitution for Europe in Article I-9 it is laid down that the Union shall recognize the rights, freedoms and principles set out in the Charter of fundamental rights, which constitutes part II of the Constitution.

25

Principles of Good Governance: Lessons from Administrative Law

ies in their relations with the public, a European administrative law on good administration should be adopted.26 The European Ombudsman has strongly supported the insertion of the Charter of Fundamental Rights into the future Constitutional Treaty.27 It should be legally binding in EU law which is now foreseen in Article I-9 under 1 of the version of 29 November 2004. Article I-9 under 2 of the Treaty Establishing a Constitution for Europe also foresees that the EU can adhere to the European Convention on Human Rights because, to date, only national states can participate. However, rights without the means to safeguard those rights are not very useful. Therefore it is important to explicitly state the means of redress available when those rights are not respected. Article I-10, under 2, of the Treaty establishing a Constitutional Treaty now mentions the Ombudsman in Title II ‘Fundamental Rights and Citizenship of the Union’, together with the right to petition the European Parliament. But especially Article II-101, guaranteeing the right to good administration including a number of principles, is very relevant in this context. There is a direct link between this article and Article 398 which establishes a legal basis for principles of administrative procedure.28 I see this link with a broader group of principles: the principles of good governance. My opinion is based on the contents of the European Codes and the case law of the several institutions. Also relevant is Article 49 of Title VI ‘The Democratic life of the Union’, which says that an Ombudsman shall be appointed and that this Ombudsman shall receive complaints about maladministration. I understand, together with Ladenburger, that Article III-122 is controversial because it introduces a legal basis for legislation on principles and conditions for the operation of services of general interest.29 On the other hand, this article also underlines the importance of principles such as the principles of good governance. The discussion on the notion of good governance is not a uniquely European law discussion. In international law and national law we find a similar debate, although these discussions are not always recognized as good governance discussions as they do not necessarily use the same terms with the same meaning. There are comparable tendencies in the discussions on good governance in three fields of law: administrative law, European law and international law. For this reason it is very important to clarify the interrelationships between these discussions in the different legal groups. With regard to the international law debate I would like to reiterate the different definitions of good governance which are provided by international institutions

26

27

28

29

26

The European Parliament, in its capacity as the only European institution democratically representing all European citizens, could take the initiative to initiate a procedure leading to the adoption of such a law in the form of a Regulation. O. Verheecke, The role of the European Ombudsman in an enlarged Union, lecture on 23 May 2003, Brussels. C. Ladenburger, ‘Towards a post-national Constitution – Federal, Confederal or Genuinely Sui Generis?’, Spetses, 11/14-09-2003, p. 17. Ibidem.

Henk Addink

such as the UNDP,30 UNCHR,31 OECD,32 IMF33 and the World Bank;34 these institutions all work with the notion of ‘Good Governance’. This broad international ‘discussion’ on good governance started at the end of the 1980s and is still ongoing.35 At least in the beginning, it often had to do with development aid and the relations between more or less developed countries. The first function of the principles of good governance is an external field of normative reference. The character of the discussions often seems to be more political than legal; in my opinion we will have to concentrate the discussion on good governance and especially the legal norms for the activities of the administration and the link with the legal theory.36 These legal norms can be found in several places in legislation at several levels, but they can also be the outcome of a political discussion. So we must pay attention to the legal norms of good governance. But the resulting question is the following: what is the content of the legal norms for the administration from the perspective of the legislator, the administration and the judiciary and other controlling institutions? This is one of the central questions in administrative law. What can we find in the constitution and in the legislation thereon and which norms have been developed in the case law of the judiciary and other independent controlling institutions such as the Ombudsman and the Court of Auditors? Is there a need to codify that case law? But also the developments in international and European law and the consequences for the national level can make it necessary to redefine the content of the principles of good governance including proper administration.37 The main questions in this article are the following. 1. What are the parameters of good governance which are applicable to administrative law and how have they developed over the years? 2. What does the legal dimension of the principles of good governance refer to? 3. Are there any possible overlaps or conflicts (or striking differences) between the national legal orders and the EU legal order in the application of principles of good governance?

30 31 32

33 34

35

36

37

UNDP policy document entitled Governance for Sustainable Human Development, 1997. UNCHR Resolution 1998/72. OECD Development Assistance Committee, Part I and Part II, Paris 1997; OECD, Governance in the 21st Century, Paris 2001. The IMF and Good Governance, 2002. World Bank, Good Governance and fiscal transparency, 1994; World Bank, Corruption and Good Governance, 1997. F.N. Botchway, ‘Good Governance: The Old, the New, the Principle and the Elements’, 13 (1) Florida Journal of International Law, 2000, p. 159-210. Réne Foqué who used the terms ‘General Principles of Good Global Governance’: see R. Foqué, ‘Global governance and the rule of law. Human Rights and general principles of good global governance’, in K. Wellens (ed.), International law: theory and practice. Essays in Honour of Eric Suy, The Hague, Kluwer Law International, 1998, p. 39. In a forthcoming publication a conception of International and Comparative Administrative Law which revolves around these kinds of reciprocal legal developments will be presented: G.H. Addink, Internationaal en vergelijkend bestuursrecht (International and Comparative Administrative Law), publication foreseen in 2005.

27

Principles of Good Governance: Lessons from Administrative Law

4. Are there reasons to change the current situation, bearing in mind the Constitutional Treaty? The questions will be elaborated in the following way in this article, in which the discussion will focus on ‘principles of good governance’. Firstly, I will develop the theoretical perspective of principles of good governance. Secondly, the origins of these principles in Dutch administrative law will be developed in order to clarify the parameters of good governance. Thirdly, attention will be paid to the development of the principles in administrative law and the relationship with other legal aspects. Fourthly, I will explain the legal dimension of the principles which has been developed in administrative law over the last ten years. Fifthly, the content of the individual principles of good governance in administrative law will be compared with the contents of the principles at the European level. Finally, some conclusions will be drawn in relation to the central research questions and some suggestions will be made for the future. But, first of all, I have to make some remarks about the terminology.

2.

Some Remarks on the Terminology in this Chapter

The remarks on the central terms used in this article concern: a) ‘governance’ and ‘administration’; b) ‘good governance’ and ‘principles of good governance’; c) ‘principles of good governance’ and ‘principles of proper administration’. In view of the focus on the principles, no difference is made between the content of the term ‘governance’38 and that of the term ‘administration’.39 However, it is clear that the use of different definitions is possible; especially in political science different meanings of the word governance have been found.40 My impression is that most of these meanings are related to the political science approach. At the same time I agree in essence with the critics of the LSE Study Group on European Administrative Law41 who are of the opinion that in the White Paper it should be determined in detail and not only in an institutional and instrumental way but also 38

39

40

41

28

In dictionaries the following definitions have been provided for governance: exercise of authority; control; government; arrangement. Two other brief descriptions of governance are the following: 1) the act, process, or power of governing; 2) the state of being governed. Two additional descriptions: 1) the persons (institution) who make up a governing body and who administer something; 2) the act of governing, exercising authority. In dictionaries we find the following definitions of Administration in a governmental context: 1) the act or process of administering (management of a government); 2) the activity of a government in the exercise of its powers and duties; 3) the executive branch of a government; 4) office of an executive officer or body; 5) law management and disposal of a trust or estate; 6. dispensing, applying or tendering of something such as an oath. Robert Rhodes found at least six usages for the term governance: R. Rhodes, ‘The New Governance: Governing Without Government’, 1996, Political Studies, vol. 44, p. 652-667. This political scientist primarily makes reference to the methodology of government in the postmodern, minimal state (= good governance); the other sets of meanings are concerned with systems analysis, socio-cybernetic systems and self-organizing networks. LSE Study Group on European Administrative Law, supra note 17.

Henk Addink

normatively what – from the perspective of the Commission – the content of governance should be. In the case law of the Court of Justice and the European Ombudsman we mostly find the terms ‘maladministration’ or ‘principles of good administration’. Both terms, governance and administration, are used here in accordance with an administrative law perspective, namely that these terms imply activities promoting the general interest by the fulfilment of a public task. Therefore I could also have used the terms ‘public governance’ or ‘public administration’. These activities – the fulfilling of a public task – may not only be carried out by the traditional administration on a central or decentralized level, but also by independent administrative bodies and private institutions which carry out these activities in the general interest and which have no hierarchical relation to the other parts of the government. Also for these institutions the norms of good governance are relevant. I realize that I, and also other authors,42 use the term ‘governance’ more narrowly than is usual in the field of public administration. Moreover, in society comparable types of norms are subject to a developing process; we see these norms in industry: the principles of corporate governance. Governance in the public administration context has to do with what I call principles of good governance and which often has a connotation with the development of networks. Using principles of good governance in the process of developing networks can be seen as the second function of principles of good governance. My second remark is in relation to the character of the discussions which we should have: do we need to speak about the different types of activities of governance (good governance) or should the central point in the discussion be the different principles as the steering mechanisms for these activities, the principles of good governance? It seems to me, because the first central question concerns the parameters of good governance, that the central point in the discussion should therefore be the principles of good governance. Another point which has been referred to in the literature is that governance includes a reference to the methodology of government in the post-modern, minimal state, and covers the concept of ‘good governance’ and the efficiency targets of new public management.43 For me, the term governance has a non-normative content and I therefore prefer to use the term good governance in the normative legal discussion. In the discussion on good governance we refer to not only orders and decisions by the administration but also other activities such as private activities and factual acts. All these forms of governance behaviour are linked with principles of good governance and therefore the focus is on the broader perspective of governance. The last remark is that the literature sometimes speaks of ‘principles of good governance’ and ‘principles of proper administration’, but sometimes also of ‘prin42

43

See M.P. Chiti, ‘Are there Universal Principles of Good Governance?’, 1 (2) European Public Law, 1995, p. 241–258; H.P. Nehl, Principles of Administrative Procedure in EC Law, Oxford and Portland, Oregon, Hart Publishing, 1999, p. 17. LSE Study Group on European Administrative Law, supra note 17 and R. Rhodes, supra note 40.

29

Principles of Good Governance: Lessons from Administrative Law

ciples of fair administration’. As said before, in my view there is no difference between ‘governance’ and ‘administration’ and therefore we can also speak ‘principles of good administration’; these principles are also used by the Ombudsman in order to check whether there is a case of maladministration.44 Later in this article I will clarify that ‘principles of good administration’ are broader than ‘principles of proper administration’; ‘principles of fair administration’ here have the same content as ‘principles of proper administration’, however. Thus, ‘principles of proper administration’ are minimum standards and ‘principles of good governance’ have a higher level of ambition. Another relevant question will then be the following: when an activity is not in accordance with these principles of good administration or principles of proper administration, is this activity then unlawful? That depends on the contents of the law; from my perspective these principles are so crucial that an activity contrary to the principles of proper administration is always so, while an activity contrary to the principles of good governance is often illegal. For me, such an activity is therefore ‘unlawful’, but it is essentially more than the traditional legal aspects because it also includes the legal aspects of accountability and effectiveness.45 These aspects are different form questions related to the civil and/or criminal responsibility of the administration as a part of the legal entity the State, however there are also some links.

3.

Principles of Good Governance: The Theoretical Perspective

This section contains a brief sketch of the theoretical perspective that forms the foundation of the approach presented here. As is clear from the foregoing, the distinctive mark of this approach is that it focuses on the principles of good governance. This focus on principles is derived from and embedded in an area of legal research designated by the new concept of ‘International and Comparative Administrative Law’. This field of legal study examines the way in which administrative law functions in the context of the global(izing) (international, European and national) legal order. This is done in a comparative way, on the one hand, and, on the other, from a systematic-dogmatic viewpoint in which the interaction between the bodies of administrative law on the different levels and in different countries forms the pivotal point of interest. The claim can be made that the concept of good governance can function as a central, organizing point of focus for this field and that the elaboration of the principles of good governance can be very useful for developing a normative framework for questions of governance in the changing environment of multilevel administration in a globalizing world.46 44 45

46

30

Art. 138e (1) EC Treaty. Two aspects are relevant, a formal and a substantive one. The formal aspect is that the law can prescribe that attention should be given to accountability and effectiveness. The substantive aspect is that, in relation to accountability and effectiveness, in practice it is more a process than an action; such a process can also be controlled by the judiciary. G.H. Addink, supra note 37.

Henk Addink

So the approach presented here with its emphasis on the principles of good governance is part of the broader concept of international and comparative administrative law. That is part of the reason why a section of this contribution concerns a comparison of the principles on the national – in this case the Netherlands – and the European level. But within this perspective two other strands of thought are integrated as well. These are a Dworkin-style view of the system of administrative law in the first place and, secondly, and more specifically, Curtin and Dekker’s interpretation of good governance as an interpretive concept47 in their contribution to this volume and also Werner’s48 application of the interpretive concept. Crucial in Dworkin’s approach is that the legally binding aspect of principles is possible because there is a discretion49 the principles make it clear that rules should be interpreted.50 So the link which is made in this publication between the principles of good governance and the interpretive concept is according to the ideas developed by Dworkin. I will further develop the Dworkin-style view of administrative law and some fundamental aspects concerning my concept of principles of good governance. In the Dworkin-style view of the system of administrative law several steps have to be taken. I also have to make a double extrapolation from Dworkin’s work: a) from the judiciary to the administrator and legislator,51 and b) from the national level to the regional and international levels.52 The first step is Dworkin’s position in his discussions with Hart; the second step is the more direct link between Dworkin and administrative law and the ongoing discussion here in the Netherlands. From there a direct link is made with the principles of good governance and the principles of proper administration. The last aspect is the double comparative approach as elaborated here: horizontal and vertical. Starting with Hart,53 he has criticized Austin for describing law solely in terms of ‘behavioural regularity’ and ‘obedience’, based on habits and a fear of sanctions.54 In Hart’s opinion, the true grounds of law lie in the acceptance by the community as a whole of a fundamental master rule (he called this a ‘rule of recognition’) that as47 48

49

50 51

52

53 54

D.M. Curtin and I.F. Dekker, supra note 18. W.G. Werner, State Sovereignty as an interpretive concept, Paper for the Round Table on Governance and International Legal Theory, Utrecht, July 2002. R. Dworkin, Taking Rights Seriously, Cambridge, Harvard University Press, 1977, p. 28 and p. 31. R. Dworkin, Law’s Empire, London, Duckworth, 1986, chapter 2. The study by Dworkin – taking the internal participants’ point of view (p. 14) – centres on judges but the same remarks can be made concerning legislators and other public officials: R. Dworkin, supra note 50, p. 12. Another argument for this choice can be found on p. 15. But the structure of judicial argument is typically more explicit, and judicial reasoning has an influence on other forms of legal discourse that are not fully reciprocal. Dworkin especially makes the horizontal comparison: see the Elmer Case (Dworkin, p. 15) and the McLoughlin Case (Dworkin, p. 23); the Snail Darter Case (Dworkin, p. 20) can be seen as an example of a vertical comparison. H.L.A. Hart, The Concept of Law, Oxford, Clarendon Press, 1961, p. 144. A. Soeteman, ‘R. Dworkin’, in P.B. Cliteur and M.A. Loth (eds.), Rechtsfilosofen van de twintigste eeuw, Arnhem, Gouda Quint, 1992, p. 159-183 and G. van Oenen, Conventie en rechtsintrige; een visie op de rechtstheorie van Ronald Dworkin, Zwolle, Tjeenk Willink, 1994.

31

Principles of Good Governance: Lessons from Administrative Law

signs to particular people or groups the authority to make law. Van Oenen succinctly described the crucial aspects of the discussion in his summary: ‘Hart improved Austin’s conception by introducing the concept of a ‘rule’, which incorporates both an (Austinian) aspect of ‘regularity’ or ‘measure’, and a normative or ‘internal aspect’. He described law as a system of (primary and secondary) rules with an internal aspect: legal subjects, or at least juridical officials, do not just ‘follow’ rules, they also view their rules as norms for their own and each other’s behaviour. In this way, Hart added a modest ‘hermeneutical’ dimension to the positivist theory of law; the description of law acquires an element of interpretation, evaluation or reflection. But the moral content of legal rules or norms plays no role in this theory, the reason being the empirical fact that concrete systems of law differ strongly on this count (except for the ‘minimum content of natural law’, of course). Therefore moral content cannot form part of the concept of law. Moral and legal rules are distinguished by means of secondary rules, procedural rules of recognition without a necessary moral content.[….] Legal positivism does not, and indeed need not deny that legal practice has, or at last can have, a moral ‘point’. What it does deny is that law cannot be described without reference to such a moral point or purpose. Dworkin however argues that the positivist framework, even when modified or ‘stretched’, is flawed because it cannot account for all moral principles that figure in legal practice and adjudication. The part some moral principles play in law can only be accounted for within the hermeneutical perspective that Hart’s theory lacks. Dworkin argues that Hart wrongly reduces the hermeneutical dimension of law to a sociological description of official behaviour. This does injustice to the self-image or self-conception of lawyers. Participants in a social practice, like law, always view their practice from an internal perspective. For Dworkin, reasoning about the correct solution always involves imposing a moral ‘point’ on law. This ‘point’ functions as the focus of a construction that tries to give as much coherence as possible to applicable and related legal norms. From this perspective, moral principles that play a role in the argument for the decision should be considered as part of the law itself’.55

In Hart’s rule-concept of law – in relation to the discretion of the judiciary – two types of principles can be found: principles that are part of positive law and principles accepted by the judiciary in a plausible interpretation of a series of cases.56 Dworkin sees a third group mentioned in the literature: principles, which are part of an implicit, ‘unconscious’ background of the system of legal rules. Dworkin sees even more categories: principles that are not generally accepted. From his perspective the model aims at a coherent construction of as great a part of the system of law as possible, based on justifying principles. The weighing of (competing) principles (almost) always leads to the conclusion that there is one right answer. Dworkin’s interpretive approach to social practices is built on the ideals of fairness, justice and integrity.

55 56

32

Ibidem, p. 259. H.L.A. Hart, The Concept of Law, Oxford, Clarendon Press, 1961, p. 144.

Henk Addink

In the administrative law literature57 a link has been made between the theory of Dworkin and the principles of proper administration, while the principles of fair administration are also mentioned (but as said before, no distinction is made in this paper), which function as a guideline for the central actors in administrative law: lawmaker (legislator), public administrator (administration), judge (judiciary) and citizen (society). In Dworkin’s work special attention is given to the differences between a) principles and rules and between b) principles and policies and the statement that the principles of fair administration are principles and not rules. Van der Heijden58 elaborates a method for finding answers to questions of administrative law and he checks all of the fifteen principles (consisting of six groups of principles) in a case in order to support the fairness and justice of the administrative action in the case. In the same case he shows how the application of the principles of fair administration is possible in combination with the criteria of effectiveness and efficiency. He concludes: ‘Characteristic for the found method for finding answers to questions of administrative law is that it is not only applicable in cases where judges have to rule. The method is also useful for policy analysis, ex ante and ex post, and in the situation of making and conducting policy. Especially in this last situation the principles of fair administration are instrumental, because they have direct influence on changes in the real world. This instrumental character of these principles has to fit in the system of administrative law that traditionally recognizes these principles as juridical guarantees instead of instruments. This is done by defining instrumentality as a function of giving guarantees, and judicial guarantees as instruments. That results in a system that in accordance with the ideas of Dworkin can lead to answers to questions of law that are acknowledged in the concerned community as the answers that give the best possible interpretation of politics and law in this community’.59

How can the concept of good governance function within an approach like the one sketched above? An answer to this question may be found in the contribution to this volume by Curtin and Dekker.60 In their article they suggest that the concept of

57

58 59 60

B.W.N. de Waard, Beginselen van behoorlijke rechtspleging (Principles of Administrative Procedural Law), Zwolle, Tjeenk Willink, 1987, sees a relationship between legal principles and procedural administrative law; P. Nicolai, Beginselen van behoorlijk bestuur (Principles of Proper Administration), Deventer, Kluwer, 1990, makes a link between legal principles and the process of the steps of decision making by the administration; G.H. Addink, Algemene beginselen van behoorlijk bestuur (General Principles of Proper Administration), Deventer, Kluwer, 1999, in chapter 2: Foundations of the Principles of Proper Administration); G.M.A. van der Heijden, Een Filosofie van Behoorlijk Bestuur (A Philosophy of Proper Administration), Deventer, Kluwer, 2001, develops a broader theory of legal philosophy with regard to proper administrations; P. Popelier, ‘Legal Certainty and Principles of Proper Law Making’, 2 (3) European Journal of Law Reform, 2000, p. 312-342, makes a link with the Principles of Proper Law Making. See also I.C. van der Vlies, Het Wetsbegrip en Beginselen van Behoorlijke Regelgeving, The Hague, 1984. G.M.A. van der Heijden, supra note 57, p. 273. G.M.A. van der Heijden, supra note 57, p. 275. D.M. Curtin and I.F. Dekker, supra note 18.

33

Principles of Good Governance: Lessons from Administrative Law

(good) governance61 can be conceived as an interpretive legal concept, a notion also originating from Dworkin’s thinking,62 like Werner who has proposed the same in relation to the concept of state sovereignty.63 The principles of good governance, which, as already stated, form the focus of the approach presented here, fit harmoniously within this scheme of thought. As Curtin and Dekker state, ‘[a]ccording to Dworkin [an ‘interpretive’ legal concept] plays an important role in the legal discourse in a community by structuring different conceptions around a common fundamental value and thus contributing to the development of the legal system of that community. These different conceptions are, to a large extent, expressed in the principles connected with the ‘interpretive’ legal concept’.64 In line with this, three levels can be discerned: different conceptions of good governance associated with this concept (1), which are expressed in different sets of principles of good governance (2), which in their turn form an interpretation of the relevant practices and legal materials (3). As stated at the beginning of this section, good governance can be seen as the central, organizing focal point of international and administrative law. This has a very important consequence. It means that, since international and comparative administrative law has the phenomenon of administrative law at the different levels and areas of the global legal order as its scope, the legal materials which are relevant here comprise different parts of this whole global legal order. As is clear from the introduction, in this way there is a confrontation with a wide range of different conceptions of good governance associated with those materials and/or expressed by the various institutions like the IMF and the European Commission etcetera. It is important to note, however, that besides this obvious divergence, upon closer inspection there are also important similarities and parallels to be found. To reveal this convergence is an important task of international and comparative administrative law. In line with the extrapolation of the Dworkin-style view of administrative law the approach presented here focuses on the principles of good governance. As Curtin and Dekker make clear, the different conceptions of good governance are, to a large extent, expressed in the principles connected with the concept. So we have different sets of principles corresponding to different conceptions of good governance. But also on this point the observation of (growing) convergence is relevant. Since the different conceptions of good governance revolve around a common point, it is probable that there will be considerable overlapping. Partly because of its legal-dogmatic dimension the principles-focused approach is especially sensitive to the legal force of those principles. Here two points are of particular importance. The first is that, as already stated, according to the 61

62 63

64

34

In their article and in this article, there is a difference in terminology: ‘Governance’ or ‘Good Governance’, but not in the method which is used. My impression is that they see these as organisational norms, however I see them as norms for governmental actions. A. Soeteman, supra note 54, p. 170 et seq. W.G. Werner, supra note 48. See the article by Curtin and Dekker and the one by Werner for a detailed exposition of this perspective. D.M. Curtin and I.F. Dekker, supra note 18.

Henk Addink

general Dworkin-style picture of law the principles that make up the best interpretation of the relevant legal materials form part of the law. This is of course an ideal description in reality one will probably see a gradual evolution of different principles from a soft law character to ‘harder’ law. The second is that these principles are related to the legal materials, which brings with it its own specific normative force. This second point will be elaborated in the last topic. In relation to this it is useful to recall the interesting observation made by Koopmans, regarding the general principles of law in European and national systems of law in general, that they ‘are, in a certain sense, commuters. Frequently, they travel from National legal systems to European Community law, as principles common to the legal systems of the Member States. Subsequently, after having been baptized as General Principles of Community law, they travel back to national systems as part of the influence of Community law on National law’.65

He also concludes that ‘general principles are not, or not any more, used to patch gaps left between legal provisions duly enacted by the framers of laws, constitutions or treaties. On the contrary, they are an integral part of the conceptual tools judges employ nowadays for settling conflicts’.66

This development corresponds, in Koopmans’ view, to a broader evolution, in which the growing reliance on general principles of law is part of the answer to the question of the increasing inadequacy of more traditional sources of law such as the usual codes, statutes and regulations in the light of the technological progress, rapid processes of social change and the internationalization of the economy. From the point of view of this article it can be added that the principles of good governance seem to provide an excellent tool for performing this function in relation to promoting good administration in a globalizing world. The principles of good governance (as expressed in the several conceptions) form an interpretation of the rules expressed in the legal materials (mainly different forms of legislation and case law). So, as Dworkin argues, they are related to these rules in two ways. On the one hand, they have, as does any interpretation, to be coherent, to fit, with the rules. On the other hand, the principles – as an expression of the point of good governance – exert an influence on these rules themselves, as Dworkin makes clear in relation to an imaginary example of the ‘rules of courtesy’, ‘that the requirements of courtesy – the behaviour it calls for or judgments it warrants – are not necessarily or exclusively what they have always been taken to be but are in-

65

66

T. Koopmans, ‘General Principles of Law in European and National Systems of Law: A Comparative View’, in U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law, The Hague, Kluwer Law International, 2000, p. 25. Ibidem, p. 34.

35

Principles of Good Governance: Lessons from Administrative Law

stead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point’.67

As a special case we can mention the situation where a principle that has implicitly been part of the law, is at a certain moment codified in a piece of legislation, as is the case with some general principles of proper administration in Dutch administrative law.68 In this section the principles of good governance have a third function: internal fundamental basics for the administration. This function will be developed in relation to the origins and developments of principles of good governance in the Netherlands, the comparison of these aspects with the EU and the suggestions for the concept, the contents and the regulation of principles of good governance at the EU level.

4.

The Origins of the Principles of Good Governance in the Netherlands

In the Netherlands there is the classic rule of law, which consists of four aspects: the principle of legality, the division of powers, the protection of fundamental rights and judicial control. In the development towards the democratic rule of law, the norm of democracy makes demands on the organization of the administration, the procedure of decision making and the contents of the decisions. The combination of the classic rule of law and the norm of democracy, the democratic rule of law, can be seen as the main source for creating the principles of good governance: principles of proper administration, principles of public participation in the administration (i.e. democratic administration), principles of transparent administration and principles of human rights administration. But there are also two new types of principles: principles of accountable administration and principles of effective administration69 Principles of accountable administration are linked with the process of ensuring that public service activities and, in particular, the exercise of decision making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner which is consistent with fairness and good administrative practice.70 Recently the Netherlands’ Court of Audit made clear that its work will be focused on principles of good governance, in particular the principles of accountable administration.71 I will elaborate these elements of the principles of good administration in relation to the above aspects. But, first, it has to be said that there are also some not 67 68

69

70

71

36

Cf. R. Dworkin, supra note 50, p. 47. Aspects of the Principles of Legal Certainty (GALA arts: 4:23 and 5:22), Confidence (GALA para. 4.2.6), Proportionality (GALA, art. 3:4-2), Carefulness (GALA, arts. 2:3, 3:2, para. 3.4, para. 3.5, para. 3.6, para. 4.1.2 and para. 4.1.3) and Reasoning (para. 3.7). See on the principles of effectivity: G.M.A. van der Heijden, supra note 57, p. 273; J.H. Jans et al., Inleiding tot het Europees bestuursrecht, Nijmegen, Ars Aequi, 2002, p. 74-77 and p. 84-85. See also M. Brophy, ‘Administrative Accountability in the Community: The Role of the Ombudsman’, in The European Ombudsman, Liaison Letter, no. 7, Strasbourg, The European Ombudsman, January 2002 p. 9. S. Stuiveling, The Role of the Court of Audit in Promoting Good Governance, The Hague, The Netherlands Court of Audit, June 2003.

Henk Addink

purely legal sources, such as morals, ethics and policy which can also be seen as sources of the principles of good governance (see section 3). There is a flowing line from these elements and the purely legal sources so that some (aspects of these) elements are in fact part of the law. The principle of legality implies that the activities of the administration can (in principle) only be based on a law. In these laws, besides the legal restrictions, also discretionary power in relation to orders or other activities has mostly been given to the administrative authorities. So these activities can only be carried out according to written and unwritten legal norms, the principles of proper administration, which can be seen – as stated before – as parts of the principles of good governance. The legislator laid down the written principles, but the judiciary developed the unwritten principles. The division of power concerns the three functions – legislative, executive and controlling power – which are fulfilled by different institutions. At the beginning quite separately by the legislator, the administration and the judiciary, but increasingly there is a combination and cooperation between the different institutions. This means that there are different positions in relation to the principles: the legislator (harmonizing and codifying), the administration (steering the use of instruments) and the judiciary (judicial review).72 The controlling function is traditionally fulfilled by parliament and the judiciary; parliament is charged with political control and the judiciary with purely legal control. But, increasingly, two really independent institutions are playing an important controlling role, the National Ombudsman and the General Chamber of Audit (Court of Audit): these institutions can be seen as the fourth power, separated from the legislative, the executive and the judicial power. Especially the Court of Audit concentrates on aspects related to the principles of effective administration and the principles of accountable administration. The controlling role is fulfilled based on criteria, which are laid down in the law, so they are legal criteria but the outcome of this activity can only be a recommendation. In their recommendations both institutions have developed principles of good governance. Only the judiciary or the parliament can enforce these recommendations. The fundamental classical rights (civil rights and political rights) have to be protected, but it also concerns the fundamental restrictive character of administrative power. In relation to social rights (socio-economic rights and cultural rights) there should be a positive influence on the work of the administration. Of course international conventions and declarations are important as sources and for the development of these rights; but also in the Netherlands different fundamental and social rights have been codified in the Constitution. Some examples are: Article 19 (It shall be the concern of the authorities to promote the provision of sufficient employment), Article 20 (It shall be the concern of the authorities to secure the means

72

G.H. Addink, supra note 57, chapter 3. Verschillende posities in de praktijk: de toetsende rechter, het instrumentele bestuur en de harmoniserende en codificerende wetgever, p. 33-43. In chapter 3 he elaborates three different positions in legal practice: the checking judiciary, instrumental administration and the harmonizing and codifying legislator.

37

Principles of Good Governance: Lessons from Administrative Law

of subsistence of the population and to achieve the distribution of wealth), Article 21 (It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment), Article 22 (The authorities shall take steps to promote the health of the population), and Article 23 (Education shall be the constant concern of the Government). In the Human Rights Reference Handbook73 we can read: ‘Good governance and human rights are closely related. They can mutually reinforce each other in important ways. They are both concerned with the rule of law and with equity in the outcomes of government policies. And they overlap in specific areas. Their central aims remain distinct, however. Good governance is about providing society with a framework for the effective and equitable generation and division of wealth. Human rights seek to protect the inherent dignity of each and every individual’.

On the other hand, in a situation where social rights become more important as well as the role of the administration in creating the optimal conditions for the real protection of fundamental rights, the central aims are – from an administrative law perspective – very closely related. That is clearly visible in relation to the work of the Ombudsman and there we find the general administrative law aspects of human rights: the principles of human rights administration. The legal protection by the judiciary is in this context mainly relevant in relation to administrative actions, but the role of the Ombudsman must also be mentioned here. The judiciary will provide an interpretation of the written norms in relation to the principles of good governance but will also develop these principles in case law. The criterion, which is used by the Ombudsman, is ‘maladministration’ and will therefore also be relevant in relation to the development of principles of good governance. With regard to the democracy principle the norms on the participation of citizens are relevant. These norms were first laid down in specific legislation like the Environmental Management Act and the Planning Act. Later, in 1994, these regulations were harmonized within the framework of the General Administrative Law Act (GALA). To make the participation fruitful also information from the administrative side is relevant. The transparency of the administration is about a) transparency of decisions and orders, b) transparency of meetings, c) transparency of information. Part a can be found in the GALA and part b in the organizational rules of the different institutions. On part c, transparency of information, there is a specific Act on public access to government information.74 In Article 2 we can read: ‘An administrative authority shall, in the exercise of its functions, disclose information in accordance with the present Act, without prejudice to provisions laid down in other statutes’.

73

74

38

Th. R.G. van Banning and W.J.M. van Genugten, Human Rights Reference Handbook, The Hague, Ministry of Foreign Affairs of the Netherlands, 1999, p. 97. The Government Information (Public Access) Act, 31 October 1991, in force since 1 May 1992.

Henk Addink

And in Article 8: ‘The administrative authority directly concerned shall provide, of its own accord, information on its policy and the preparation and implementation thereof, whenever the provision of such information is in the interest of effective, democratic governance’.

In Article 3 it is stated that anyone may apply to an administrative authority for information contained in documents concerning an administrative matter; an application for information shall be granted with due regard to the provisions of Articles 10 (exceptions) and 11 (restrictions). All these elements can be seen as aspects of the principles of transparent administration. So for real participation information and more generally the aspect of the transparency of the administration is crucial. Both can be seen as the formal side of the democracy principle, looking towards the substantive side the interests of individuals and groups should be given a place in the decision making process. These aspects of the democracy principle the principles of public participation administration, have direct consequences for and can be seen as part of the principles of good governance. This section has been about question 1a: What are the parameters of good governance that are applicable to administrative law? The principles of good governance are the parameters. The principles of good governance have their roots in the democratic rule of law. These principles not only have to do with the obligations for the administration, but also with human rights including citizens’ participation rights. The following six types of principles, parameters, of good administration can be distinguished in the Netherlands: a) principles of proper administration; b) principles of public participation administration; c) principles of transparent administration; d) principles of human rights administration; e) principles of accountable administration; and f) principles of effective administration. Furthermore, it can be concluded – which is relevant in relation to the institutional translation of the criteria of good governance as mentioned in the introductory article – that not only the administration in the traditional sense is concerned with the principles of good governance, but other institutions also play an important role: the legislator, the judiciary and other independent controlling institutions like the Ombudsman and the Court of Audit.

5.

The Developments of the Parameters of ‘Principles of Good Governance’ in Dutch Administrative Law

Speaking about the developments of the ‘principles of good governance’ there is a difference in the development of the six types of principles of good governance. First, there were – and they have the longest history – the principles of proper administration. The second step is the development of principles of public participation and of transparent administration. The third step is the development of the principles of human rights administration. The fourth step which has just started is the development of the principles of accountable administration and the principles of effective administration. 39

Principles of Good Governance: Lessons from Administrative Law

After the Second World War opinions changed concerning the role of the State in society, resulting in immediate consequences for the administration and the law. This meant more legislation with much more administrative power in the different fields of the administration. The consequence is also the growing role of the judiciary. With the growing power to influence society in several fields, there was also a need for more participation by the citizens especially in the policy fields in which many citizens have direct interests. So interested parties can easily be found. In specific administrative acts this was elaborated. The development of the notion of ‘Principles of Good Governance’ must be seen in this context (discretionary power and many interested persons) and it took place in different legal contexts by different institutions and instruments. There is a second remark which must be made. In many European countries such as Germany and France either a General Act on Administrative Law existed already for many years in which the basics of administrative law were laid down (general principles or rules of administrative law), including some principles of good governance, or such principles were to be found in the Constitution. In the Netherlands this act, the General Administrative Law Act, came very late, in 1994, and has a different function compared to the general administrative law act in most other countries. The function of the Dutch GALA is to harmonize legislation and to codify principles which had been developed in the case law. So there is an essential difference between the function and the legal development of the principles of good governance in the Netherlands and in several European countries. In most European countries they are laid down in a very general way in the Constitution (Germany) or in the general administrative law act (France), while in the Netherlands the principles are very specific in the GALA.75 Until the beginning of the 1990s the role of the principles of good governance in Dutch administrative law was rather restricted to the principles of proper administration, which had been especially developed by the judiciary. In the Netherlands there are different (administrative) judges and they did not develop the notion of principles of good governance in the same way. Essential in the development of the notion in the 1950s was the acceptance of the binding effect of unwritten norms of proper administration by the judiciary. In relation to this step some aspects must be mentioned. One of the parts of the administrative judiciary, the Centrale Raad van Beroep (the Central Appeals Tribunal for the public service and for social security matters), had accepted the role of principles of law during the 1930s; however, this was – apart from the prohibition of ‘détournement de pouvoir’ – not laid down in specific legislation. The way in which this judicial court accepted the principles then was through the channel of the general principles of law; through this channel the principles of equality, legal certainty, legitimate expectations, due care and justification (providing sufficient grounds for a decision) were introduced into case law. It can be said that this development makes a lot of sense seen from the 75

40

Ibidem, paragraph 4.2, Algemene beginselen van behoorlijk bestuur in Duitsland (Principles of Proper Administration in Germany); paragraph 4.3, Algemene beginselen van behoorlijk bestuur in Frankrijk (Principles of Proper Administration in France).

Henk Addink

perspective of a Dworkin-style view of the system of administrative law, as described in paragraph 3. In 1948 attention was paid in the literature to formal and substantive norms of proper administration. The term ‘principles of proper administration’ was used for the first time in 1950. Essential for the theoretical development of the principles of proper administration is the publication by Wiarda in 1952 in which the case law of the different courts was analysed in more detail and more general lines were developed. From 1954 onwards the principles of proper administration were laid down in different Acts as a specific ground for appeal. With the harmonization process in relation to the General Administrative Law Act this was laid down in Article 8:77. In the literature in the Netherlands three lines of thought in relation to the principles of proper administration can be described.76 In the first line (in the 1970s) attention was paid to the way in which the judiciary used these principles to test the administration and the consequence of annulling a decision of the administration because it is not in conformity with a certain principle. Essential in this discussion is the consequence of using a formal or a substantive principle. The idea is that after annulling a decision based on a formal principle, the administration can take substantially the same decision. After annulling a decision based on a substantive principle the consequence is that another decision must be taken. In the second line (in the 1990s) the activity of the judge is related to certain phases in the decision making by the administration. The idea is that every phase has its own principle. The phases, which are distinguished, are: the preparation, the decision making procedure, the decision making, determining the contents of the decision and the publication of the decision. The requirements of properness are related to these steps and then the judiciary developed the different principles. The consequence of this approach is that the principles will have rather formal contents. The third line (at the end of the 1990s) starts by describing the theoretical contents of each individual principle, starting with the substantive principles and then the formal principles. This is followed by looking at the consequence of each principle in both legislation and case law. With this the position of each principle in relation to the other principles became clearer; the outcome of the study is that there is not a direct line as regards all the principles (principles have different dimensions) and most of them have a more substantive character, while others have a more formal character. So there is no clear difference between the formal and the substantive principles. Relevant here is the fact that the principles of public participation are sometimes seen as a specific part of the principles of proper administration, especially the principle of due care. Here the approach has been chosen for a separate group of principles of public participation administration because the norms are more specific than the norms in relation to the principle of due care. The principles of public participation in the administration could be found in specific legislation like the environmental and planning legislation at the beginning of the 1980s in the Environmental Management Act and the Planning Act, but – since 1994 – these principles have been harmonized in the General Administrative 76

Ibidem, p. 11 et seq.

41

Principles of Good Governance: Lessons from Administrative Law

Law Act. The principles of transparent administration have been laid down since 1991 in the Government Information (Public Access) Act as stated in the former section; sometimes there is a specific regulation in a special policy field. They can also partly be found in the General Administrative Law Act; the idea is to incorporate the Government Information Act in the General Administrative Law Act. The Principles of Human Rights Administration can be found, in terms of classical due process rights, in the European Convention on Human Rights and in terms of social rights partly in the Netherlands Constitution and more specifically in the specific administrative law acts in the specific policy-fields. In relation to these specific administrative law acts, there is on the instrumental side in relation to the social and economic human rights, the growing role of the General Administrative Law Act in the Netherlands. The Dutch legislator has developed general aspects of human rights administration. After the development of the European Convention on Human Rights the most important role in relation to the legal protection side is nowadays played by the judiciary. Both institutions, the legislator and the judiciary, are developing the principles of human rights administration. The principles of accountable administration can be found in the constitutional law of the Netherlands but also in criminal and private law. The principles of effective administration are especially elaborated in the new Government Accounts Act 2001. The conclusions of this section are related to the central question 1b of this paper: How have these parameters of good governance developed over the years? The first conclusion is that in the Netherlands the principles of proper administration have been primarily developed by the judiciary and later – quite recently – by the legislative power. Attention was primarily focused on the effect of annulling a decision by the judiciary and especially on the difference between formal and substantive principles of good governance. The second conclusion relates to the meaning of the principles as norms for the administration in the several phases of the decision making process. Recently the principles themselves have become the object of study so that the contents of the individual principles and the relation of the principles to each other have become clearer. The principles of democratic administration were in the beginning codified as binding rules in the specific (environmental) legislation. Since 1994 the system, in essence remaining unchanged, has been laid down in the GALA.77 The system in the GALA is optional in the sense that the law or the administrative authority can take the decision to follow this procedure in certain situations. For environmental decision making the GALA system is obligatory. The principles of transparent administration have since 1991 been included in the Government Information (Public Access) Act78 and partly in the GALA; the integration of the whole Government In77

78

42

I have further developed the principle of democratic administration in the book ‘Algemene beginselen van behoorlijk bestuur’ as an aspect of the principle of due care (the sub-principle of careful hearing), G.H. Addink, supra note 57, p. 194-196, p. 207 and p. 220-224. Sometimes there is a specification in a special administrative act: see chapter 19 Environmental Management Act. Other examples are: the Intelligence and Security Services Act, the Continental Shelf Mining Act, the Public Records Act and the Council of State Act.

Henk Addink

formation Act is foreseen. Specific regulations on transparency have priority over the general regulation according to the adage lex specialis derogat legi generali. The principles of human rights administration can be found in the national legislation – GALA and specific legislation – in the regional and international legislation and in the national, regional and international case law. The principles of accountable administration and the principles of effective administration are rather new, however we can already find several aspects in the legislation as mentioned above.

6.

The Legal Dimension of Principles of Good Governance in Dutch Administrative Law

In a situation where the legislator, the administrator and the judge are involved with the principles of good governance, it is very important to clarify what the legal aspects of the principles of good governance are. That is not always a simple task because we have seen that six types of principles of good governance have been developed: a) principles of proper administration; b) principles of public participation in the administration; c) principles of transparent administration; d) principles of human rights administration; e) principles of accountable administration and f) principles of effective administration. It is possible that each set of principles has its own legal dimension. Also relevant is the fact that there are different institutions that are involved in the development of these types of principles and that the legal bases of the principles are different. From the perspective of legal certainty and equality it is also very useful to develop a more coherent system of principles of good governance at the national level. The best way of creating such a coherent system is by enacting a general regulation. This could be done by drafting policy rules on good governance or – as a next step – by creating general binding rules in legislation. An important step at the beginning of this process can also be the case law developed by the judiciary, but at a certain point in time this case law should be codified in a general act on administrative law. This process of harmonization and integration, including the codification of the case law at national level by means of legislation, has in essence already started with the development of the GALA since 1994. In order to assist the further development of the principles of good governance, it is essential to clarify what the content is of each individual principle of the four types of principles of good governance. To make this clear I will provide a brief overview of the principles and I will also mention the codification of that principle in the Dutch legislation in this and in the next section. Principles of proper administration include:79 - the prohibition of misuse of power; - the prohibition of arbitrariness; - the principle of legal certainty; - the principle of legitimate expectations; 79

G.H. Addink, supra note 57, part II, p. 73 and p. 272.

43

Principles of Good Governance: Lessons from Administrative Law

-

the principle of equality; the principle of proportionality; the principle of due care and the principle of justification (providing sufficient grounds for a decision).

Principles of public participation in the administration include: - the principle of public participation related to persons - the principle of public participation related to the moment and - the principle of public participation related to the object. Principles of transparent administration include: - the principle of transparency of decisions and orders; - the principle of transparency of meetings; and - the principle of transparency of information. Principles of human rights administration include: - principles of classical human rights; and - principles of social human rights. For the administration two types of human rights are relevant: a) classical rights, b) social rights. In relation to the classical rights the civil rights, and more, specifically the due process rights (right to a fair trial, equality before the courts, nulla poena sine lege) and the political rights (the right to participate in the government, equal access to public service) are relevant for the work of the administration. In relation to the social rights the socio-economic rights (rights to food, health, housing and education) and the cultural rights (the right to take part in cultural life) are important for the administration. However, there are other legal aspects of the principles of good governance which have to be discussed. Examples of relevant questions in that discussion are: which administrative authorities have to apply these principles, to which administrative activities must these principles be applied, what is the binding effect of these principles when they have been applied, and how can these principles be enforced? In such a system of principles of good governance an answer should be given to the following question: what is the legally binding character of the principles? First, it has to be noted that from the perspective of a Dworkin-style view of the system of administrative law those principles that are included in the body which gives the best interpretation of the available legal materials can be considered as forming part of the law. Since this is an ideal description, attention should be paid to concrete legal manifestations of the principles. It is clear that when we find a principle in a general binding rule, the principle is directly binding on all the addressees of that rule. When the principle is of a general nature, but not generally binding, then there is an indirect binding effect for the group to whom this order is addressed, by the principles of legal certainty and due care. An exception must be made for the situation where a principle forms part of the policy rule as mentioned

44

Henk Addink

in the GALA, because then Article 4:84 gives it a generally binding effect.80 The principle as a part of a decision has a binding effect only in the concrete case of the decision. Therefore it is better to distinguish between types of principles, which each have their own legal framework. From a good governance conceptual point of view there are no clear differences between these principles; it is for historical reasons that these principles have been legally developed in separate systems of legislation. These principles can be enforced within the process of judicial review. But it is not only the judiciary but also other independent institutions like the Court of Audit or the Ombudsman that can use these principles. And within the political process the control can be carried out by parliament. With this we have given an explanation of the different aspects of the legal dimension of the principles of good governance as mentioned in central question 2: the legal contents of the principles, their binding force and the possibilities to enforce them.

7.

The Principles of Good Governance Compared: in the Netherlands and in the EU

In the sections above I have already dealt with the principles of good governance in the Dutch context; in this section attention will be paid to the contents of these principles on the level of European law and a brief comparison will be made.81 The classification of the six types of principles of good governance can be done in different ways. Based on the substantial aspects we can distinguish three main groups: a) the fundamental principles (democracy, the rule of law, human rights), b) the macro level principles (transparency, public participation, accountability, effectiveness) and c) the micro level principles (good administration). I have opted for a more historical perspective on the different types of principles of good governance. The principle of equal treatment on the European and Netherlands level is in essence not conceptually different, although in concrete cases there can be some difference. The principle of proportionality on the Community level has a broader content: ‘controlling aims and means, weighing interests and rationalizing crime and punishment’ than in the Netherlands.82 In the GALA it is especially related to the aspect of weighing interests and – in criminal administrative sanctions – also its relation to criminal punishment. The principle of certainty on the national level is in general comparable to the contents of the principle on the European level. The prin80

81

82

The GALA has the following definition of a policy rule: an order, not being a generally binding regulation, which lays down a general rule for weighing interests, determining facts or interpreting statutory regulations in the exercise of a power of an administrative authority. G.H. Addink, supra note 57, p. 49-52; J.H. Jans, R. de Lange, S. Prechal and R.J.G.M. Widdershoven, Inleiding tot het Europees bestuursrecht, Nijmegen, Ars Aequi, 1999, p. 145-218. G.H. Addink, supra note 57, p. 49; J.B.J.M. ten Berge and A.J. Bok, The ‘principles of proportionality’, in G.H. Addink and A.J. Bok (eds.), Administrative Law in a Comparative perspective 2001/2002, Utrecht, Utrecht University, 2001, p. 4.43 en p. 4.51; J.H. Jans, R. de Lange, S. Prechal and R.J.G.M. Widdershoven, supra note 81, p. 171-191.

45

Principles of Good Governance: Lessons from Administrative Law

ciple of legitimate expectations has a broader content on the national level than on its European counterpart; this principle contra legem which is possible at the national level, is indeed impossible at the European level.83

7.1.

Principles of Democratic Administration in the Netherlands and in the EU

Principles of democratic administration are especially those principles which relate to public participation in the activities of the administration. There is no general regulation on public participation on the European level, in contrast to the Dutch GALA, in which we find a special paragraph.

7.2.

Principles of Transparent Administration in the Netherlands and in the EU

There are five values which are distinguished in the literature within the umbrella term transparency: access to documents, knowledge of who is the EU decision maker, comprehensibility and accessibility within decision making, consultation, and the duty to give adequate reasons. In the 1994 Code entitled ‘Openness in the Community’ the Commission and the Council provided that as a general principle the public will have the widest possible access to documents held by the Commission and the Council. Anyone may apply to the Council or to the Commission for access to documents for any reason. There is no real transparency concerning the preparation of the directives and regulations, only the final outcome is published.84 The decision to publish the decisions of the Council is taken by unanimity.85 In the EU Treaty there are no regulations concerning the transparency of EU meetings only standing orders. An amendment was inserted in Article 207 of the Treaty of Amsterdam; in paragraph 3 of Article 207 the Council has to make specific rules on access to documents as required by Article 255 EC. In 2001 a new Regulation was adopted on access to documents.86 This new Regulation provides a stronger legal basis for the policy on openness and it widens the scope of rules of access.87 In Article 255 of the EU Treaty the right of every citizen to transparency of documents is specifically laid down; a problem is that every EU institution can impose restrictions on transparency because there is no minimum standard guaranteed in the treaty.

83

84 85 86

87

46

G.H. Addink, supra note 57, p. 51-52; J.H. Jans, R. de Lange, S. Prechal and R.J.G.M. Widdershoven, supra note 81, p. 192-208. J.A. Hofman, Openbaarheid van bestuur, Nijmegen, Ars Aequi, 1998, p. 16. Article 18(3) Rules of Procedure. Regulation (EC) No. 1049/2001 of the European Parliament and the Council of 30 May 2001, regarding public access to European Parliament, Council and Commission documents. M. Maes, ‘The ‘New’ Regulation on Access to Documents’, in V. Deckmyn (ed.), Increasing Transparency in the European Union?, Maastricht, European Institute of Public Administration, 2002, p. 199.

Henk Addink

In the literature it is said that European administrative law has made a number of stunning advances since Maastricht, and has found valuable reinforcements not only in the Courts but also in the form of the European Ombudsman and the work of the Committee of Independent Experts. But for just as many years the EU had struggled to accept even the principle that its institutions should be transparent and open.88

7.3.

Principles of Human Rights Administration in the Netherlands and in the EU

On the European level nowadays the principles of human rights are placed under the category of general principles of law. It seems that the European Court of Justice finds its inspiration in the constitutional traditions of the member states and the international treaties on human rights. For this reason it seems that there are no important differences at this point in time.

7.4.

Principles of Accountable and Effective Administration in the Netherlands and in the EU

In the European law context principles of accountable administration and principles of effective administration are much more strongly developed than in the Netherlands. On the national level these principles are quite new but under the influence of the European law on the national administrative law my expectation is that these principles will be developed on the national level very quickly. Central question 3 was the following: are there any possible overlaps or conflicts (or striking differences) between the national legal orders and the EU legal order in the application of principles of good governance? The conclusion is that there are some striking differences as regards some principles of proper administration (proportionality and legitimate expectations), the principles of participative administration (no general regulation on participation on the European level) and the principle of transparent administration (not laid down in general regulations). There are no real problems in the field of the principles of human rights administration.

8.

Suggestions for the Concept, the Contents and the Regulation of the Principles of Good Governance in the EU

These days the words ‘principles of good governance’ can often be found in EU law. Three functions of these principles can be distinguished. In the first function the principles of good governance exist in the international law (especially in relation to development aid) functioning as an external field of normative reference. The second function of the principles of good governance we find in the field of public administration: principles of good governance used in the process of developing 88

A. Tomkins, ‘Transparency and the Emergence of a European Administrative Law’, Yearbook of European Law, Oxford, Oxford University Press, 1999-2000, p. 255.

47

Principles of Good Governance: Lessons from Administrative Law

networks. The third function of the principles of good governance based on administrative law has been elaborated in this article: principles of good governance forming the internal fundamental basics for the administration. At the moment six types of principles of good governance – each with its own contents and development – can be distinguished: principles of proper administration, principles of democratic administration, principles of transparent administration, principles of human rights administration, principles of accountable administration and principles of effective administration. These principles have had a different development at the national level where the judiciary has only played an important role in the development of principles of proper administration, but since 1994 many of these principles have been codified in the GALA. Also for the second category of principles the GALA has a special regulation, and for the third category of principles a draft chapter has been prepared in the GALA. This process of harmonization and integration in a General Administrative Act is very important for the legal significance of the principles, both now and in the future. These lessons can be learned from administrative law. The principles discussion is not really new in European law,89 but it is useful to commence a broader investigation of the principles of good governance at the European level and, more specifically, on the content given to the six types of principles by all the European Institutions including the controlling institutions such as the Court of Justice, the European Ombudsman and the Court of Auditors. This investigation should especially examine the contents of the principles and the legal form which these principles should take. The second part is a comparative investigation into the principles of good governance in the member states of the European Union which is also related to the work of the different institutions of administration and independent controlling institutions mentioned above. The final part is the development of a European Administrative Act on Good Governance based on both studies. Article III-398 and Article II-101 of the Treaty establishing a Constitution for Europe could be the legal basis for this Act.

89

48

T. Tridimas, The General Principles of EC Law, Oxford, Oxford University Press, 1999.

Luc Verhey*

GOOD GOVERNANCE: LESSONS FROM CONSTITUTIONAL LAW

1.

Introduction

In recent years ‘good governance’ has become a major subject of public debate within the European Union. This debate still continues. As a follow-up to the White Paper on European Governance1 the Commission has produced a steady stream of documents seeking to elaborate upon ‘good governance’ in the EU context. However, the Commission’s campaign has met severe criticism.2 Many commentators have strongly disapproved of its technocratic and centralistic approach. According to Scharpf the Commission has portrayed itself ‘as the lone hero of European policy making and implementation’. In his view, ‘this reflects not only an inflated image of the Commission’s capabilities but also a disturbing lack of understanding of the preconditions of successful multilevel governance in Europe’.3

It is only one example of the many critical comments which the Commission has received. What seems to be lacking in this debate is the national perspective. Which lessons could we learn from national law? After all, the debate about what ‘good governance’ is all about, is not new. Almost all topics that have been discussed under the broad umbrella of European governance are very well known at the national level. The existing deficiencies, as pointed out by the Commission in its White Pa∗

1 2

3

Professor of Constitutional and Administrative Law, University of Maastricht. Parts of this contribution are inspired by an earlier publication. See L. Verhey, ‘Good governance: towards a European ius commune?’, in M. Faure, J. Smits and H. Schneider (eds.), Towards a European Ius Commune in Legal Education and Research, Antwerp, Intersentia, 2002, p. 73-96. COM(2001) 428 final. Although there is also support. See European Governance: A White Paper Working Summary of the Public Response (document produced by the Commission) available at: . Fritz W. Scharpf, European Governance: Common Concerns vs. the Challenge of Diversity, New York, Jean Monnet Working Paper no. 6/00, 2001, p. 11.

49

Good Governance: Lessons from Constitutional Law

per, are often similar, at least to some extent, to the problems experienced in many EU Member States. It therefore seems obvious that the Commission and other contributors to the debate should pay close attention to developments in the Member States in order to learn from national experiences. Why reinvent the wheel if workable solutions can be found at the national level? However, the national perspective until now has almost been absent or at least has remained invisible. The Commission, it is true, promotes the better involvement of actors that are familiar with the national circumstances;4 it intends to stimulate a more systematic dialogue with national associations of regional and local government, it wants to create a more effective and transparent consultation with ‘civil society’, it is in favour of promoting the use of the ‘open method of co-ordination’ in which Member States play a dominant role etc. However, all these measures only seem to be focused on improving European governance as such. Neither in its White Paper nor in its follow-up does the Commission recognize in any way the possible relevance of national experiences at the EU level. This one-sided approach not only adds fresh fuel to the impression that the Commission strongly distrusts the Member States, but also runs the risk of isolating the EU from national traditions. European governance should not be the exclusive domain of the ‘Brussels circle’: it must have a firm basis in the long-established constitutional systems at the national level. In this contribution I will discuss some issues relating to European governance from a national perspective. As far as is relevant I will take the Treaty establishing a Constitution for Europe, as presented by the European Convention,5 into account. I must admit that my contribution is also rather one-sided, because my knowledge, as a national expert, concerns in particular Dutch constitutional law. Moreover, my remarks are of a provisional nature; many issues still need further research.

2.

The EU as a Multilevel System

Before approaching European governance from a national perspective a preliminary question has to be answered. To what extent can the EU be compared with traditional ‘nation-states’? Although many authors have already devoted considerable attention to this issue, I want to make some comments, approaching it from a more national perspective. The EU is frequently characterized as a multilevel governance system. In such a system there is a ‘polity-creating process in which authority and policy-making are shared across multiple levels of government – sub-national, national and supranational’.6 None of the actors in this process are considered to be dominant. Al4 5 6

50

White Paper, p. 11 et seq. CONV 820/1/03 REV 1. G. Marks, L. Hooghe and K. Blank, ‘European Integration from the 1980s: State-Centric v. Multiple-Level Governance’, Journal of Common Market Studies, 1996, p. 341 and 342. See also P. Craig, ‘The Nature of the Community: Integration, Democracy, and Legitimacy’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press, 1999, p. 16 et seq.

Luc Verhey

though national governments, as represented in the Council and numerous committees, are major players in EU policy making, they do not have a monopoly over control. Supranational institutions, the Commission and the European Parliament in particular, also exercise substantial influence. However, they do not have a dominant position either. The constant tension between intergovernmentalism and supranationalism renders the EU unique, but also complicates a proper understanding of the way in which the EU exercises public power compared to traditional constitutional models.7 For that reason the development of new, less state-oriented theories and concepts has been advocated.8 Traditional constitutional parameters are considered to be of limited use, sometimes even to be dangerous. The objections against the traditional constitutional approach can be illustrated by Weiler’s opinion on the delegation of competences to ‘new’ institutions, like Committees. He considers the constitutionalization of Committee procedures, inspired by the Meroni case law of the European Court,9 to be a ‘normative disaster’.10 In his view this case law is premised on the classical belief in the ability and necessity of assigning and maintaining legal powers to well-defined subjects only. It thus excludes discretionary powers of committees, de facto obscuring the autonomy of these committees as it exists in practice and, consequently, the constitutional value of accountability. Instead, the Court ‘would have to recognize the infranational11 character of the Comitology, which defies the normal constitutional categories laboriously constructed in the context of a supranational understanding of the Community’. In his opinion, an ‘infranational’ adjudication: ‘would reverse the current set of priorities and put values before structure. Equality of access, transparency, political accountability should trump considerations of, say, delegation and attribution’. 7

8

9 10

11

G. de Búrca, ‘The Institutional Development of the EU: A Constitutional Analysis’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press, 1999, p. 64. P. Craig, supra note 6, p. 19 et seq. See also R. Dehousse, ‘European governance in search of legitimacy: the need for a process-based approach’, in O. De Schutter, N. Lebessis and J. Paterson (eds.), Governance in the European Union, Luxembourg, Office for Official Publications of the European Communities, 2001, p. 169 et seq.; E.M.H. Hirsch Ballin, ‘Vervlochten constituties. Nederland in de Europese rechtsorde’, in A.K. Koekkoek (red.), Bijdragen aan een Europese grondwet, Publikaties van de staatsrechtkring, Staatsrechtconferenties nr. 5, Deventer, W.E.J. Tjeenk Willink, 2000, p. 11 et seq. Known as the Meroni doctrine. See ECJ Case 9/56 (1957-58), ECR 133. J.H.H. Weiler, ‘Epilogue: ‘Comitology’ as Revolution – Infranationalism, Constitutionalism and Democracy’, in Ch. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and Politics, Oxford–Portland, Hart Publishing, 1999, p. 346. Weiler’s theory is that there are three modes of governance within the EU: the international, the supranational and the infranational. In his view, infranational governance covers implementing and executive measures, standard setting and the like, of the kind which are the daily fare of Comitology. It is not the Community or the Member States which are the key players, but rather ‘both at Union and Member State levels, administrations, departments, private and public associations, and certain, mainly corporate, interest groups’. See J.H.H. Weiler, The constitution of Europe. ‘Do the new clothes have an emperor?’ and other essays on European integration, Cambridge, Cambridge University Press, 1999, p. 270 et seq., esp. p. 273.

51

Good Governance: Lessons from Constitutional Law

An approach such as Weiler’s runs the risk of shaping unjust contrasts between ‘new’ European and ‘classical’ national principles. In the first place, it must be recognized that, although the EU is perhaps not a ‘state’ in the traditional sense, this does not mean that traditional constitutional principles will not apply. As De Búrca stated: ‘it is not necessarily only the constitution of a state, but of any political entity exercising public power, which ought to guide and constrain its institutions by reference to observable rules of good government, such as that they should be accessible and reasonably accountable to those on whose behalf they act’.12

It is not plausible to assume that those rules would be substantially different from traditional constitutional values. Parallelism with national constitutional traditions seems to be confirmed by Article 6 TEU; it provides that the Union is founded on the principles of liberty, democracy, respect for human rights and the rule of law, ‘principles which are common to the Member States’.13 In order to achieve good governance the formulation of abstract values is not enough; values must be given shape in a well thought out constitutional framework. Therefore it is difficult to subscribe Weiler’s approach of ‘putting values before structure’. Values and structure are not opposites. On the contrary, it seems to be impossible to put principles of good governance, such as accountability14 and transparency, into practice without a clear and consistent constitutional structure that conforms to generally accepted principles of democracy and the rule of law.15 Giving priority to values over structures is therefore undesirable: they are intertwined and inseparable.

3.

EU and National Governments

However, as the mutual differences between the Member States clearly show, common constitutional principles can be complied with in very different constitutional structures. Therefore it could be argued that within the EU the principles of democracy and the rule of law must be realized in a way that is suitable to the unique character of the EU as a political entity sui generis. What should make the EU unique, at least in comparison with ‘nation states’, is the role of national governments. 12 13

14

15

52

G. de Búrca, supra note 7, p. 65. See also Article II-112, para. 4 of the European Constitution: Insofar as this Charter recognizes fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. See the comment by Kohler-Koch on the Commission’s White Paper: ‘It is not sufficient to have decision-makers simply ‘explain and take responsibility’ for what they do (WP 10). In a democratic system, accountability is synonymous with institutionalized mechanisms to sanction unwanted behaviour’. B. Kohler-Koch, The Commission White Paper and the Improvement of European Governance, Jean Monnet Working Paper no. 6/01, New York, 2001, p. 5, available at: . E.O. Eriksen, Governance of democracy?, The White Paper on European Governance, Jean Monnet Working Paper, no. 6/00, New York, 2000.

Luc Verhey

According to Kohler-Koch16 there is ‘an EU with nation states not just as a transitory but as a permanent type of polity’. In her view Member State governments are key players for three reasons: 1. Generally speaking, the majority of citizens trust their governments to be able to ‘deliver’ and, when they are frustrated, they have the choice to vote for the opposition; 2. National governments enjoy institutional legitimacy as they are part of an uncontested institutional system; 3. The nation state is still considered to be the only ‘truly’ legitimate place for hosting a society. I doubt whether national governments still have the major legitimacy which KohlerKoch suggests they have. The legitimacy of national public administrations, both electoral and institutional, seems increasingly to be called into question in almost all Member States. In this respect the differences between the EU and the Member States could be less than one perhaps might expect. Insofar there are still major differences, they could be of a temporary nature. Nation states like they exist today, did not come out of the blue either. In his comment on the Commission’s White Paper on European Governance MacCormick reminded us of the fact that ‘union states such as the United Kingdom, Spain, Germany, Italy and even (though this is easy to forget) France came into being by various processes through historical unions of previously independent and selfgoverning parts’.17 This also applies to the Netherlands (pluralism!). If one takes into account how much has been changed in Europe over the last few decades, it is, at least in the long term, difficult to exclude the emergence of a European political entity that has many similarities with some present ‘nation states’. For the time being national governments (and perhaps national parliaments in the near future) indeed play an important role in EU decision making. At this point in time the EU can therefore not simply be compared with a ‘nation state’. This does not mean that national experiences cannot be relevant for improving European governance. It only means that, while trying to draw lessons from national experiences, one has to consider the peculiarities of the EU legal order. The crucial issue will be the precise role these peculiarities have to play in practice. There seems to be a considerable risk that the way in which constitutional standards are being operationalized in the EU will be the end-product of unclear and ambiguous compromises between intergovernmentalism and supranationalism. Such compromises could not only cause serious practical problems, but could also prevent essential constitutional values from being sufficiently safeguarded. 16 17

B. Kohler-Koch, supra note 14, para. 3, p. 1-2. N. MacCormick, A Comment on the Governance Paper, Jean Monnet Working Paper no. 6/01, New York, 2001, p. 1.

53

Good Governance: Lessons from Constitutional Law

4.

Good Governance: A Lack of Constitutionalism

From the constitutional perspective as described above the European debate on good governance has, to date been quite puzzling. The Commission’s White Paper focused on identifying the main principles of ‘good governance’ and how these should be given effect under the present working methods of the Community rather than on bringing the constitutional structure and the competences of EU bodies into line with common constitutional standards. Of course the Commission was handicapped by the fact that, while putting forward its proposals, the outcome of the European Convention was not yet known. It is also true that the Commission, at least to a certain extent, has recognized the constitutional dimension of good governance in its White Paper (promoting ‘reinvigoration of the Community method’)18 and has also made several contributions to the work of the Convention from this perspective.19 However, this is not enough. Let me say, first, that the Commission, despite all the criticism, deserves credit for giving new impetus to the debate. One cannot blame the Commission for remaining silent on improving good governance. On the contrary, it takes the lead by taking initiatives and by putting forward proposals that in my view are often very useful. The Commission was also correct in not waiting for the outcome of the European Convention.20 Many governance issues can be usefully discussed in isolation from the European Constitution. However a constitutional approach demands more than taking the European Constitution into account. In the Member States, as in the EU itself, constitutional law is much more than the written constitution:21 it can be found in legislation, case law etc. What is completely lacking in the Commission’s White Paper is the constitutional dimension of ‘good governance’ in this broad sense. The Commission elaborates on ‘involving civil society’, ‘a reinforced culture of consultation and dialogue’, ‘partnership arrangements’, ‘connecting with networks’, ‘co-regulation’, ‘the open method of co-ordination’ and ‘target-based, tripartite contracts’ without seriously reflecting on constitutional conditions. What appears to be an almost absolute rejection of the constitutional law dimension can seriously undermine the legitimacy of European governance.22 This failure can be found in many documents recently produced by the Commission. However, it was already there from the start. The underlying principles of good governance as defined by the Commission in its White Paper (openness, par-

18 19 20

21 22

54

White Paper, p. 34. COM(2001) 727 final, COM(2002) 728 final/2. Weiler criticized the Commission for ‘the uneasy relationship between the White Paper and the IGC Agenda’: there could be no clear picture of how the Commission’s proposals would fit in with the broader constitutional agenda. See J.H.H. Weiler, The Commission as EuroSkeptic: A Task Oriented Commission for a Project-Based Union. A Comment on the First Version of the White Paper, Jean Monnet Working Paper, no. 6/01, New York, 2001, p. 6. If it exists. As is well known the United Kingdom has no written constitution. E.O. Eriksen, supra note 15, p. 15.

Luc Verhey

ticipation, accountability, effectiveness and coherence)23 are remarkably one-sided. The notion of the rule of law remains underexposed. Vital principles like lawfulness, legality, equal treatment, fairness, integrity, objectivity and impartiality, although perhaps self-evident, are not included. These principles should not be observed exclusively by the judiciary,24 but must also be addressed by governmental bodies. As a consequence, the rule of law and the principles derived there from must be regarded as an integral part of ‘good governance’. Remarkable as well is that the principles that have been mentioned in the White Paper remain without any explanation of the relevant legal context. Longstanding traditions in many Member States show that aspects of good governance, like openness and participation, have been strongly promoted through the development and elaboration of legal principles of administrative behaviour by the judiciary. This aspect is absent in the Commission’s approach. Even a clear reference to the relevant case law of the Court of Justice is lacking.

5.

Improving Participation

The basic deficiency of constitutional understanding affects many proposals which the Commission has put forward in the White Paper and subsequently. This can clearly be illustrated by the proposals aimed at improving the involvement of ‘civil society’ in EU decision making. What is needed, according to the Commission, is ‘a reinforced culture of consultation and dialogue’.25 Remarkable is its statement that ‘creating a culture of consultation cannot be achieved by legal rules which would create excessive rigidity and risk slowing the adoption of particular policies’. The Commission prefers ‘a code of conduct that sets minimum standards, focusing on what to consult on, when, whom and how to consult’.26 In addition to these minimum standards, the Commission intends to develop more extensive ‘partnership arrangements’. This entails additional consultations with civil society organizations which, analogous to public institutions, comply with principles of democracy and the rule of law (openness, representativeness). Finally, the Commission stresses the importance of the many European and international networks. It wishes to develop ‘a more systematic and pro-active approach to working with key networks to enable them to contribute to decision shaping and policy execution’.27

23 24

25

26

27

White Paper p. 10. See Conclusions Rule of Law Conference, Noordwijk 23-24 June 1997. In the introductory report of this conference: E.A. Alkema et al., The role and independence of the judiciary and the administration of justice in the perspective of the rule of law, Leiden, F.M. van Asbeck Centrum voor Mensenrechtenstudies, 1997. White Paper, p. 16. See also Article I-47, para. 3 of the European Constitution: The Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. White Paper, p. 17. See COM(2002) 704 final. This documents contains ‘general principles and minimum standards for consultation of interested parties by the Commission. Neither the general principles nor the minimum standards are legally binding (p. 15). White Paper, p. 18.

55

Good Governance: Lessons from Constitutional Law

As appears from the above, the Commission has a great reluctance to adopt legal rules. In the White Paper this reluctance is poorly justified. Generally speaking, it is a regrettable misconception that legal rules inevitably result in excessive rigidity and slow procedures, as the Commission seems to assume. The rigidity or flexibility of a legal rule depends on its structure and content, not on the instrument as such. It therefore remains unclear why a code of conduct should be preferred. Rather the opposite could be the case. Surely where the rights of citizens are at stake, one could argue that enforceable legal rules are preferable. This seems to be confirmed by Article 41 of the EU Charter of Fundamental Rights that provides for a general right to good administration.28 Moreover, a strong legal position for citizens vis-à-vis EU institutions and Member States could boost confidence in European governance. From this perspective legal rules should not weaken, but rather strengthen the objectives of the Commission. What can we learn from national law as far as consultation of civil society is concerned? National solutions do not seem to go in one clear direction. In Dutch law, roughly speaking, a distinction has been made between decisions on legislation and general policy measures on the one hand, and decisions that are not of a general nature on the other. Consultation processes with regard to legislation and general policy is in principle free of legal rules. It is up to the government to decide whom they want to consult, to what extent and how. A few years ago a bill was adopted as a consequence of which all legal obligations to consult advisory bodies and organizations of civil society were abolished.29 This operation was aimed at, as the Dutch government then pointed out, ‘restoring the primacy of politics’. Although the reasoning is fundamentally different, this seems to confirm the Commission’s view of not proposing binding rules for consultation processes. On the other hand, there are extensive legal rules for involving interested parties in administrative decisions of a non-general character. In the Dutch General Administrative Law Act30 (sometimes detailed) provisions have been laid down with regard to the gathering of information, the seeking of advice, the obligation to invite interested parties to give their view, the weighing of interests, the time during which decisions should be communicated, the underlying reasoning and the publication of administrative orders. This Act also includes the right to seek redress from the administrative authority which issued the order as well as the right to appeal to a court.

28

29

30

56

See also E.M.H. Hirsch Ballin, ‘Een grondrecht op behoorlijk bestuur’, 10 Nederlands Tijdschrift voor Bestuursrecht, 2000, p. 305 et seq. Wet van 10 juli 1995, Staatsblad, 1995, 355 (Wet afschaffing adviesverplichtingen). An important exception is the obligatory advice of the Council of State regarding Bills. Wet van 4 juni 1992, Staatsblad, 1992, 315 (Algemene wet bestuursrecht). Since then this act has been amended on many occasions. This Act also met substantial criticism, but in the context of this contribution there is not enough space to go into detail.

Luc Verhey

Are such rules desirable at the European level? Perhaps a European general administrative statute is a step too far at this stage for political and legal reasons.31 However, general rules, at least for certain areas of administrative decision making (including consultation) could surely be considered. In this respect it has to be borne in mind that, apart from the extensive case law of the European Court of Justice, a number of general principles have already found their way into the Code of good administrative behaviour.32 This code identifies ‘guidelines for good administrative behaviour’ with a view to the Commission’s performance, such as the duty to: – – –

act objectively and impartially; provide information on administrative procedures as required; ensure that an opportunity be given to interested parties to make their views known, where EC law provides that interested parties should be heard; – state the reasons on which its decisions are based and communicate them to the persons and parties concerned;33 – notify interested parties of the possibility to lodge an appeal and how this should be done. This code is a good start for further elaboration. It is thinkable that other and more detailed provisions should be added, perhaps inspired by national rules. It is remarkable that the Commission does not mention such options in a White Paper on good governance. This is once again an illustration of the fact that the Commission almost ignores the constitutional aspects. Also on other aspects a clear constitutional view is lacking. Is the EU empowered to set requirements on the internal structure of civil society organizations? What is exactly meant by ‘a more systematic and pro-active approach to working with key networks’? How will the functioning of these networks influence the powers of the Council, the European Parliament and other EU bodies?34 Questions on which the Commission has not yet shown a clear view.

6.

Delegation of Legislation

In the White Paper the Commission showed itself to be very critical concerning the quality of present EU legislation.35 According to the Commission, legislation often contains an undesirable level of detail. The Council and the European Parliament get the blame for this; they should have been reluctant to allow the Commission 31

32 33 34

35

J. Schwarze, European administrative law, London/Luxembourg, Sweet & Maxwell, 1992, p. 1446 et seq., J.H. Jans et al., Inleiding tot het Europees bestuursrecht, 2de druk, Nijmegen, Ars Aequi Libri, 1999, p. 370-372. OJ L 267, 20.10.2000. This code expressly provides that it is binding. See Article 253 EC. A general comment on the White Paper was that ‘consultation and involvement of civil society should not undercut representative systems’. See the Report from the Commission on European Governance, COM(2002) 705 final, p. 26. White Paper, p. 18-26.

57

Good Governance: Lessons from Constitutional Law

more room for policy execution. This should have resulted in a lack of flexibility and ineffectiveness. In its White Paper the Commission further points out that in some instances rules are poorly enforced. Much has occurred since then. The European Constitution will result in a radical change in EU legislation. By introducing the distinction between a European law, a European framework law, a European regulation and a European decision36 the Commission will probably be given much more room for manoeuvre. Article I36 creates the possibility to ‘delegate to the Commission the power to enact delegated regulations to supplement or amend certain non-essential elements of the European law or framework law’.37 To a certain extent this meets the Commission’s criticism.38 The problems which the EU is facing have been very well known in the Member States for several decades. The Commission correctly points out that, in national systems, the problem of too detailed and too complex legislation would be addressed through implementing rules which are monitored by national parliaments rather than through statutes adopted by the Parliaments themselves.39 In this respect the introduction of delegation as proposed by the Convention fits perfectly well with national developments. However, this is not the whole story. As national experiences have shown there is a risk of disturbing the institutional balance. Executive and legislative competences will be executed by one and the same organ. The executive (read: the Commission) becomes the ‘legislator in its own affairs’40 and therefore cannot be considered as impartial in its role as legislator. Several remedies can be thought of. In the first place, one has to try to identify what are the ‘essential’ elements which remain to be regulated by the legislator (the European Parliament and the Council) itself. On this point the Commission has remained rather vague by stating that a situation must be created in which ‘legislation defines the conditions and limits within which the Commission carries out its executive role’.41 This must become much more concrete. Core elements with regard to which delegation must be excluded are, for example, the rights and obligations of individuals, especially financial claims, the scope of the powers of the executive and the most essential conditions under which these powers can be exercised, rules governing liability and sanctions, the supervision of compliance with legal rules, as well as judicial remedies and rules of judicial procedure. Secondly the dominance of the executive has to be compensated by countervailing powers of other constitutional bodies. Of course one should think of

36 37

38

39 40

41

58

Article I-33 European Constitution. See also Article I-36. According to this provision the Commission will have more influence in the implementation of EU legislation. The Commission has put forward comparable proposals to the Convention. See COM(2002), 728 final/2, p. 7. White Paper, p. 18. In Dutch literature: M. Scheltema, ‘Is het bestuur wetgever in eigen zaak?’, in W.F. de Gaay Fortmann (ed.), Problemen van wetgeving, Deventer, Kluwer, 1982. White Paper, p. 31. Of course, this is in the first place, for the legislator to decide. See also COM(2002) 278 final.

Luc Verhey

strengthening the mechanisms of parliamentary control in the first place. This is consistent with the Commission’s argument ‘that the European Parliament should enhance its control on the execution of EU policies and the implementation of the budget’.42 In practice, however, this is difficult to realize. Although parliamentary control in many respects remains relevant, national experiences show that parliaments cannot fully compensate the dominance of governments. Perhaps this is different at the EU level because of the Council being the most powerful part of the legislator. In this respect Comitology can be seen as a useful (although still too complicated) mechanism. If, once again, national experiences should be taken into account there is an organization which proves to be far more effective in controlling the executive than the parliament: the judiciary. During the last century the importance of a judicial review of administrative acts spectacularly increased in probably all Member States. The role of judicial review in the debate on good governance seems to have been underestimated. In order to enforce good governance judicial review is essential. The possibilities for citizens to apply for a judicial review at European level must therefore be broadened. At present, these possibilities are limited and are therefore not always available in cases where citizens are directly affected by EU decisions.43

7.

Improving the Quality of Legislation

In order to improve EU legislation the Commission has published, as a follow-up to its White Paper, an Action plan entitled ‘Simplifying and improving the regulatory environment’.44 This plan contains many useful suggestions. Elements of this plan are, for example: – – – –

a procedure for assessing the impact of legislative initiatives;45 expanding the explanatory memoranda accompanying legislative proposals; including a review clause in legislative acts; setting up an internal network for ‘better lawmaking’ in the Commission (bringing all the Directorates-General together); – stimulating alternatives for legislation (self-regulation, co-regulation etc.); – a programme for simplifying and reducing EU legislation; and – introducing a period during which legislative proposals can be reread by lawyer-linguists before they are finally adopted.

42 43

44 45

White Paper, p. 30. See Article 47 of the EU Charter on Fundamental Rights. This article provides for a right to an effective remedy and the right to a fair trial. See also the proposals of the Commission for an operating framework for the European Regulatory agencies. In this document the Commission proposes to extend the judicial review of decisions of regulatory agencies: COM(2002) 718 final, p. 13. COM(2002) 278 final. COM(2002) 276 final.

59

Good Governance: Lessons from Constitutional Law

Similar initiatives have been taken in at least some Member States. In the Netherlands there has been a comprehensive programme on improving the quality of legislation since 1991.46 A core element of this programme is that every government department is obliged to present every legislative proposal to a special division of the Ministry of Justice for testing its quality. For this goal a specific set of criteria applying to legislation, has been developed by the government and approved by Parliament.47 These criteria are the following: a. Lawfulness and realization of principles of justice. Legislation must be in conformity with the law, especially international and EC law, the Constitution and general principles of justice, such as the principle of legal certainty. b. Effectiveness and efficiency. Effectiveness implies that the law, at least to a considerable degree, must lead to achieving the targets set by the legislator. Efficiency relates to the requirement that there must be a balance between the costs and benefits ensuing from the effect of the law. c. Subsidiarity and proportionality. Where possible, responsibility should be left or entrusted to local authorities and social organizations. Instead of intervening immediately and unilaterally, the government should establish a more indirect policy in interaction with society. d. Feasibility and enforceability. It must be possible to enforce compliance with the aid of legal responses to non-compliance and by taking specific measures. Extremely important factors are the capacity and expertise of the executive and judicial authorities. Too often these two factors have been considered as the tailend of the legislative process. e. Coordination. An unnecessary or unwelcome diversity of rules or practices concerning the same or related topics should be avoided. Moreover, there must be coherence between rules, which, although operating from different angles, are applicable to one and the same case. f. Simplicity, clarity and accessibility. High drafting standards must be set for the organization and design of the law and the formulation of legal provisions. These general criteria have been further elaborated. To a large extent, they are laid down in the ‘Legislative Drafting Rules’ (Aanwijzingen voor de regelgeving), as laid down by the Dutch Prime Minister.48 In its action plan for better lawmaking the Commission explicitly or implicitly pays attention to some of the above criteria. In terms of effectiveness and efficiency the introduction of the impact assessment procedure is essential, because the outcome can be decisive for the success or failure of legislation. The results of this procedure will be included in the explanatory memorandum. Generally speaking, expanding the explanatory memorandum is of vital importance for the quality of

46 47 48

60

Legislation in perspective (Zicht op wetgeving), Tweede Kamer, 1990-1991, 22 008, nos. 1-2. Tweede Kamer, 1990-1991, 20 008, nos. 1-2, p. 18 et seq. Regulation by the Prime Minister 18.11.1992 no. 92M008 337, Staatscourant 230. This regulation came into force on 1.1.1993 and was amended on several occasions.

Luc Verhey

legislation; it can make transparent which policy choices underlie the proposal, what will be the consequences of the proposal and how the various elements and provisions must be interpreted. At this moment in time the lack of adequate explanatory memoranda is a serious deficiency in EU legislation. From the perspective of subsidiarity and proportionality the promotion of tools other than legislation is an improvement as well, although the use of unclear mechanisms must be prevented. Especially ‘co-regulation’, strongly promoted by the Commission,49 raises serious doubts. It could undermine the legislative powers of the European Parliament, the Council and even the Commission, while until now it has remained unclear who at the end of the day can be held responsible for the outcome. The framework as proposed by the Commission does not give a very precise answer to this vital question. More important is that the Commission does not seem to have paid much attention to the institutional context in which the preparation of legislation takes place. Dutch experiences show that improving the quality of legislation is a stubborn issue. Formulating criteria and frameworks is not enough. In a political environment the quality of legislation has no priority in practice. Therefore additional mechanisms are needed. Checks and balances during the preparatory phase can lead to better results. In the first place, a particular Directorate-General within the Commission could be made responsible for testing legislative proposals from other Directorates-General. Setting up an ‘internal network for better lawmaking’, as proposed by the Commission,50 is not enough. In the second place, one could consider creating an external body, comparable to the Council of State existing in some Member States, whose special task is to provide a mandatory advice on the quality of every legislative proposal. Although this will slow the adoption of legislative proposals, experience has shown that such a body can make an important contribution to improving quality.

8.

The Role of the Commission

I have already paid some attention to institutional aspects above. Good governance cannot be realized in practice without a clear and consistent institutional framework. Therefore a ‘putting values above structure’ approach must be rejected. In this contribution it is not possible to go into all the relevant aspects of the renewed institutional architecture as proposed in the European Constitution.51 I will limit myself to some brief comments on the role of what can be considered to be the EU executive: the Commission. In the next section I will also pay attention to agencies. They are of growing importance in carrying out specific executive tasks. 49

50 51

COM(2002) 275 final, p. 12-13. Despite criticism of the European Parliament and others, the Commission remains convinced that co-regulation can be a useful method. See also the framework in which the Commission formulates a set of conditions for co-regulation. COM(2002) 275 final, p. 10. See further K. Lenaerts and A. Verhoeven, ‘Institutional balance as a guarantee for democracy in EU governance’, in C. Joerges and R. Dehousse (eds.), Good governance in Europe’s integrated market, Oxford, Oxford University Press, 2002, p. 35 et seq.

61

Good Governance: Lessons from Constitutional Law

In the good governance debate as well as in its communications to the Convention the Commission has strongly advocated a ‘reinvigoration of the Community method’.52 According to the Commission, this method provides a means to arbitrate between different interests by passing them through two successive filters: ‘general interest’ as guarded by the Commission; and ‘democratic representation’, both at European and national level, as guarded by the Union’s legislature, i.e. the Council and European Parliament.53 In the Commission’s view, it will continue to serve as an independent guardian of the Treaty.54 This role is reflected in the European Constitution. It says that the Commission shall promote ‘the general European interest and take appropriate initiatives to that end’ (Article I-26, para. 1) and that, in carrying out its responsibilities, it shall be ‘completely independent’ (Article I-26, para. 7). As seen from a national perspective these provisions are very surprising. In ‘nation states’ it would be unthinkable that public bodies should not be obliged to act in the general interest. Although the EU is not a ‘nation state’ one could wonder whether the claim of the Commission to have a monopoly in looking after the general interest is not completely out of date. Should the interest of the Community as a whole not be the concern of other EU institutions as well? Moreover, it could create the wrong impression that looking after the general interest is a politically neutral activity. As daily practice shows, different perceptions of ‘the general interest of the Community’ are possible. The choices that need to be made in the EU context are inevitably of a political nature. In this sense, the Commission cannot be considered to be an independent body: it is a political body in the first place. The political nature of the Commission’s work will be further increased if the Commission will be given more executive powers as the European Constitution seems to imply. Along these lines the Commission’s White Paper has rightly been criticized. As Weiler has pointed out ‘the Commission will not be able to continue with the fiction of ideological and political neutrality if it wishes to have all executive responsibility delegated to it’.55 Therefore the principle of ‘independence’ should be strictly limited to the obligation of the members of the Commission not to allow themselves to be influenced by national interests. In this sense the second sentence of Article I-26, paragraph 7 of the European Constitution must be understood as a limiting explanation of the term ‘completely independent’ in the first sentence: in discharging their duties the members of the Commission ‘shall neither seek nor take instructions from any government or other body’.56 52

53 54 55

56

62

White Paper, p. 34. See also COM(2001) 727 final (‘Renewing the Community method’) and COM(2002) 728 final/2, p. 16 et seq. White Paper, p. 8. See Article 213 EC. J.H.H. Weiler, The Commission as Euro-Skeptic: A Task Oriented Commission for a Project-Based Union. A Comment on the First Version of the White Paper, Jean Monnet Working Paper, no. 6/01, New York, 2001, p. 5. See also B. Kohler-Koch, The Commission White Paper and the Improvement of European Governance, Jean Monnet Working Paper, no. 6/01, New York, 2001, p. 3. It is sometimes called into question whether this is in fact reality. See C. Landfried, ‘Regulation of Biotechnology by Polycratic Governance’, in Ch. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and Politics, Oxford–Portland, Hart Publishing. 1999, p. 186.

Luc Verhey

It remains to be seen how the Commission’s position will develop. Especially the future relationship between the Commission and the Council is of vital importance. In 1999 the Committee of Independent Experts pointed out two extreme models to be distinguished: i) the Commission as a technocratic agency, with the Council as the body required to ratify the Commissions actions, and ii) the Commission as a kind of federal government, with a bicameral parliament and the Council performing the role of an upper chamber representing the interests of the Member States.57 In the long term, taking into account the enlargement of the EU, the Commission seems to have a great potential to grow into the ‘real’ European government. Different from the Council, the Commission can be considered as being capable of acting as a strong political unit and developing coherent views and policies at the European level. The debate on European governance supports this view. Despite all the criticism the Commission plays an important role in stimulating the debate while the role of the Council in this respect seems almost irrelevant. Should the Commission develop in this direction than the keyword will be ‘accountability’. How can the Commission be effectively held accountable for its acts in a way that meets the requirements of democracy and the rule of law? In this contribution I will not go into that aspect as it justifies a separate study.

9.

Agencies

Finally, I will make some comments on a relatively new phenomenon in EU governance: agencies.58 Until now they have been created to assist EU institutions, especially the Commission, in carrying out specific administrative tasks in a broad range of fields, such as the environment, training, and living and working conditions. Their powers differ substantially. A distinction can be made between agencies primarily providing assistance in the form of opinions and recommendations, those primarily providing assistance in the form of inspection reports, and finally, those empowered to adopt individual decisions which are legally binding on third parties.59 The role of agencies has been the subject of intense academic debate.60 Agencies are considered advantageous in the sense that they are able to reduce the workload of the Commission, making it possible for the Commission to concentrate on strategic policy. Moreover, it has been suggested that clearly identifiable agencies are more visible to the outside world than obscure Commission divisions or committees, and this contributes to greater transparency and accountability. Sometimes agencies are promoted because of their political independence, which places them in a better position to preserve policy continuity against the changeable preferences 57

58

59 60

Committee of Independent Experts, Second Report on Reform of the Commission, Brussels 10.9.1999, p. 134. E. Vos, ‘Reforming the European Commission: what role to play for EU agencies’, Common Market Law Review, 2000, p. 1113-1134. See also the contribution of R. van Ooik elsewhere in this volume. COM(2002) 718 final, p. 4. E. Vos, supra note 58, p. 1119.

63

Good Governance: Lessons from Constitutional Law

of variable parliamentary majorities.61 On the other hand, agencies have been strongly criticized, because they lack a constitutional basis and are not subject to constitutional guarantees. In particular, the transparency of and accountability for the activities of agencies have been called into question. The Commission has proposed the creation of additional autonomous EU regulatory agencies in clearly defined areas.62 As a follow-up to its White Paper the Commission published a document entitled ‘The operating framework for the European Regulatory Agencies’.63 It contains conditions concerning the legal basis, the powers, the scope, the internal structure and the financial and budgetary aspects of agencies. It moreover subjects agencies to control by the Commission as well as to administrative, political, financial and judicial supervision. On the details concerning these control mechanisms the framework is not very elaborate. In the context of European governance special attention must be paid to the relation between agencies and the Commission. On this crucial issue the framework is still rather vague. It states the following: ‘The agencies’ role and activities must form a coherent part of the Community’s institutional system. Their autonomy must be compatible with the unity and integrity of the executive function, to ensure that the Commission is able to assume its general overall responsibility’.64

With regard to this statement many questions still have to be answered. The first is how agencies will fit into the future Community’s institutional system. The European Constitution is not clear on this. Different from the European Central Bank, the Court of Auditors and the Union’s advisory bodies, agencies are not even mentioned as the Union’s institutions.65 It is also unclear whether the Commission intends to transform the proposed framework into a regulation or into another legally binding instrument.66 Therefore the constitutional basis of EU agencies shall remain an issue for further discussion. As the Commission has stated earlier, a variety of national regulatory agencies already exist across the Member States.67 The Commission’s intention to strengthen the role of agencies at the EU level runs, in effect, parallel to developments within 61

62 63 64 65

66

67

64

G. Majone and M. Everson, ‘Institutional reform: independent agencies, oversight coordination and procedural control’, in O. De Schutter, N. Lebessis and J. Paterson (eds.), Governance in the European Union, Luxembourg, Office for Official Publications of the European Communities, 2001, p. 129. White Paper, p. 24. COM(2002) 718 final. COM(2002) 718 final, p. 6. See Chapter II – The other institutions and advisory bodies (Articles 30-32) of the European Constitution. However Article II-111, para. 1 of the European Constitution states that the provisions on fundamental rights ‘are addressed to the institutions, bodies and agencies of the Union’. The Commission stated that ‘the framework conditions for the use of regulatory agencies will be defined …. via an appropriate legal instrument’. See COM(2002) 718 final, p. 6. For executive agencies a proposal for a framework regulation is still pending. See COM(2000) 788. White Paper, p. 23.

Luc Verhey

the Member States and is therefore a logical step, in any case from a national perspective. However, as a comparative study shows68 the role of national agencies and the conditions under which they operate within the national context differ substantially from one to the other. In many Member States there is a pandemonium of all sorts of quangos without any clear structure or ratio. This creates serious constitutional risks: lack of transparency, lack of political accountability, lack of financial supervision etc. Therefore the quality of the general framework at the EU level will be crucial for reducing these risks to an acceptable minimum. Which other lessons can be learned from national law? In the first place, one has to know precisely in every single case why one needs an agency. There are different reasons for creating an agency. In the Netherlands, for example, an agency can only be created if: a. there is a need for independent assessment based on specific expertise; b. it concerns the execution of legislation without discretionary powers and a large amount of individual decisions have to be made; or c. it concerns the carrying out of administrative tasks in which the participation of civil society is deemed to be necessary.69 Although these criteria are perhaps not always easy to apply in practice, they do provide at least some indication. I cannot see any such indication in the Commission’s framework. It only states that regulatory agencies: ‘may be given tasks which involve only assistance, such as drawing up opinions or studies so that the Commission can prepare legislative proposals or take specific decisions,70 carrying out or coordinating checks and inspections at certain operators so that the Commission can fulfil its role as the ‘guardian’ of Community law, and any other tasks to assist the institutions which may be necessary to carry forward various Community policies’.71

The risk of remaining that vague about when it is useful to create agencies is that in a relatively short period of time all kinds of different agencies could be created without a clear ratio. This will undoubtedly damage the consistency and the transparency of the institutional framework. In the second place, the national practice of at least some Member States shows that the political accountability of agencies is a sensitive issue. It appears to be very difficult to reconcile the intended autonomy of agencies on the one hand, and the maintenance of the overall responsibility of governments on the other. Assuming that political accountability must also be maintained at the European level72 the 68

69 70 71 72

T. Zwart and L.F.M. Verhey (eds.), Agencies in a comparative and European perspective, Antwerp, Intersentia, 2003. Article 124c ‘Legislative Drafting Rules’ (Aanwijzingen voor de regelgeving). What is the difference with an advisory body? COM(2002) 718 final, p. 7-8. Some authors, however, object to the further ‘parliamentarization’ of the Commission or at least advocate the delegation of policy-making powers to institutions other than the CommisÆ

65

Good Governance: Lessons from Constitutional Law

delegation of powers to EU agencies may in no way prevent the Commission from being held accountable and responsible by the European Parliament and the Council for the general policy and performance of such bodies. Appropriate legal powers to be able to control agencies effectively must be available to the Commission. In this respect it is not so obvious, as the Commission suggests,73 that the Commission should not be given any powers of legal supervision such as the power to issue general instructions. Political supervision in itself is not sufficient, however. As suggested above, the codification of general rules of administrative law at the EU level should be considered.74 These rules should also apply to decision making by regulatory agencies. The Commission does not want to go that far, but recognizes that agencies should be bound by ‘principles of sound administration’.75 Also positive is the fact that the Commission wants to extend judicial supervision.76 Taking note of national experiences the judicial review, by an independent tribunal, of individual decisions taken by agencies should indeed be seen as an indispensable guarantee.

10.

Concluding Remarks

Many issues are discussed under the broad umbrella of ‘good governance’. This contribution of course does not pretend to deal with all the relevant aspects. The central goal has been to illustrate that national experiences may be of great importance for achieving ‘good governance’ at the EU level. The existing deficiencies in European governance, as pointed out by the Commission, are often similar, at least to some extent, to the problems experienced in the Member States. Although the EU cannot be regarded as a ‘state’ in the traditional sense, lessons can be drawn from such experience. Unfortunately until now this national perspective has almost been absent or has at least remained invisible in the European debate on good governance. Neither in its White Paper nor in its follow-up does the Commission explicitly recognize in any way the possible relevance of national experiences at the EU level. National law seems only to be seen as an instrument to achieve EU goals, not as a source of inspi-

73

74 75

76

66

sion (agencies) ‘to preserve policy continuity against the changing preferences of variable parliamentary majorities’. See G. Majone and M. Everson, ‘Institutional reform: independent agencies, oversight coordination and procedural control’, in O. De Schutter, N. Lebessis and J. Paterson (eds.), Governance in the European Union, Luxembourg, Office for Official Publications of the European Communities, 2001, p. 129. I find it difficult to agree with these authors because, in my view, as yet there does not seem to exist a constitutionally fully-grown alternative to political accountability. COM(2002) 718 final, p. 12. It also depends on the reasons for creating the agency. If the agency has been created in order to guarantee independent assessment by experts, the power to issue instructions should not be given. In other cases, however, it is far less obvious. See section 5. COM(2002) 718 final, p. 11. The Commission mentions, for example, the right of interested parties to be heard and to present counter-arguments prior to the adoption of any decisions detrimental to their interests. COM(2002) 718 final, p. 13. See also Article 47 EU Charter on Fundamental Rights.

Luc Verhey

ration for EU solutions. This one-sided approach does run the risk of isolating the EU from national constitutional traditions. European governance should not be the exclusive domain of the ‘Brussels circle’: it must have a firm basis in the longestablished constitutional systems at the national level. Such a basis could strengthen the indispensable public support for the necessary improvements to European governance.

67

Jan Wouters Cedric Ryngaert*

GOOD GOVERNANCE: LESSONS FROM INTERNATIONAL ORGANIZATIONS

1.

Introduction

Since the beginning of the 1990s international organizations, particularly those active in the areas of development assistance and finance, have embraced a new creed: ‘good governance’ (Section 2.1). Good governance requirements for borrowing have been introduced to make sure that financial assistance is properly directed (Section 2.2). The content of ‘good governance’, however, differs among international organizations. Financial institutions have emphasized macro-economic reforms, whereas more political organizations favour a governance approach based on human rights and the rule of law (Section 2.3). Nevertheless, a consensus on what good governance implies seems to be taking shape: transparency, accountability and participation are considered to be among its core principles (Section 2.4 and Section 3). The application of the concept of good governance to international organizations themselves and not exclusively to national or regional polities is a more recent phenomenon. The broadening of its field of application is attributable to the fact that the good governance discourse has moved beyond its strictly macro-economic core. Principles of good management, accountability and participatory governance are now thought to apply to international organizations which, under increased pressure from public opinion in the aftermath of widely publicized scandals, could no longer defend the sui generis character of their system of governance. Especially since the second half of the 1990s, a number of international organizations have carried out major governance reforms, assuming that their calls for governments to heed higher standards of good governance will be all the more credible provided that they develop a good governance standard for themselves. Indeed, the requirements of good governance are a matter of the age-old adage of patere legem quem ipse *

Jan Wouters is Professor of International Law and the Law of International Organizations, Leuven University; Of Counsel, Linklaters De Bandt, Brussels. Cedric Ryngaert is Researcher, Flanders Fund for Scientific Research (FWO-Vlaanderen), Institute for International Law, Leuven University.

69

Good Governance: Lessons from International Organizations

fecisti, i.e. comply yourself with the laws you made (for others). In Section 4, good governance initiatives by three international organizations whose actions thoroughly affect their Members, citizens and businesses are scrutinized: the World Bank, the International Monetary Fund (‘IMF’) and the World Trade Organization (‘WTO’). The beginning of the 21st century could mark a turning point. If the debate over development policy has a tradition of redefining its intellectual coordinates in the first years of each decade and good governance by national governments has been the magic phrase of the 1990s,1 the time may well have come for good governance by international organizations.

2.

International Organizations Preaching Good Governance

2.1.

Some Quotations Concerning Good Governance

Nowadays, a host of international organizations are putting forward requirements of good governance as regards their Members or Member States, to the point that it has become a veritable mantra. A random selection from a number of recent documents of European and international organizations may serve to illustrate this. Michel Camdessus, ‘Good Governance. The IMF’s Role’, with attached document ‘The Role of the IMF in Governance Issues: Guidance Note’, approved by the Executive Board of the IMF on 25 July 1997:2 ‘[P]romoting good governance in all its aspects, including ensuring the rule of law, improving the efficiency and accountability of the public sector, and tackling corruption… [is] an essential element of a framework within which economies can prosper’.

Article 8(4) of the Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou, 23 June 20003 (‘Cotonou Agreement’): ‘The [political] dialogue shall also encompass a regular assessment of the development concerning the respect for human rights, democratic principles, the rule of law and good governance’.

1

2 3

70

See T. Fuster, ‘The World Bank’s Fear of the Word ‘Politics: Walking a Fine Line in the Call for Good Governance’, Neue Zürcher Zeitung, 18/19 and 28 September 1999. See . OJ L 317/3, 2000.

Jan Wouters

Cedric Ryngaert

Kofi Annan, UN Secretary-General, ‘Africa’s “New Spirit of Democratic Empowerment”, Continent’s Sobering Challenges’, an address at the Kennedy School of Government, Harvard University, on 24 April 2002:4 ‘What is encouraging about recent developments in Africa is that the pressure for good governance is no longer coming from one side or the other, but from peoples and leaders alike. The spirit of democratic empowerment is challenging all leaders to live up to the ideals of independence, and to deliver the freedoms, the rights and the opportunities that their peoples deserve’.

Statement by G8 Leaders, ‘Delivering on the Promise of the Enhanced Heavily Indebted Poor Countries Initiative’, Kananaskis, on 27 June 2002:5 ‘Debt relief alone, no matter how generous, cannot guarantee fiscal solvency, long-term economic growth, and social development. Good governance, prudent new borrowing, and sound debt management by heavily indebted poor countries, as well as responsible financing by creditors, are also essential elements of the policy framework needed to achieve these goals’.

Agreement between Ministers of the Organization for Economic Co-operation and Development (‘OECD’) and Ministers from Algeria, Egypt, Nigeria, Senegal, and South Africa on the New Partnership for Africa’s Development (‘NEPAD’), Annual Meeting of the Ministerial Council of the OECD, Paris, on 16 May 2002:6 ‘The dialogue between NEPAD and OECD will consider the scope for OECD-NEPAD co-operation building on existing OECD programmes, including among other things: consulting in a spirit of mutual trust and partnership on best development practices, and effectiveness and on development benefits of trade, investment, good governance and approaches to sustainable development’.

Address by Ambassador Jan Kubis, Secretary-General of the Organization for Security and Cooperation in Europe (‘OSCE’), ‘Confronting Common Challenges in Today’s Environment’, Istanbul, on 12-13 February 2002: ‘The standards for democracy, human rights and fundamental freedoms, rule of law and good governance should be reinforced, not lowered or limited under the pretext of combating terrorism and extremism and under the imperative of gaining allies for that’.

2.2.

Good Governance as a Borrowing Requirement

The good governance debate was initiated by the Bretton Woods institutions after the Cold War, when imperatives of security policy had to yield to concerns about 4 5 6

Press Release SG/SM/8209 AFR/404. See . See .

71

Good Governance: Lessons from International Organizations

inefficient or corrupt administrative structures. The World Bank and the IMF retraced what had occurred in the 1980s and concluded that their structural adjustment programmes in developing countries had failed because of institutional weakness, especially in Africa.7 In a 2000 publication the World Bank states: ‘Poorly functioning public sector institutions and weak governments are major constraints to growth and equitable development in many developing countries’.8 The introduction of good governance requirements as borrowing conditions had to surmount some major legal difficulties. The competences of economic institutions such as the World Bank are delineated in their Articles of Agreement. The purposes of the International Bank for Reconstruction and Development (‘IBRD’, also ‘World Bank’), which is a part of the World Bank Group, are according to Article I of its Articles of Agreement purely economic,9 whereas good governance is a rather political notion. Hence, the World Bank’s chief legal adviser, Ibrahim Shihata, had to define governance in an exclusively economic way, as the good order that is necessary for a positive investment climate and the efficient allocation of resources. The World Bank should not allow itself to be influenced by a particular political ideology, governmental form or party constellation.10 However, the macro-economic policies of the World Bank itself have always been ideologically biased, the structural adjustment programmes in the 1980s being driven by ideas of free market liberalization. It is difficult to imagine neutral policies, since policies always require a choice resulting from complicated political trade-offs. Heavily influenced by Anglo-American movements such as New Public Management and Reinventing Government, the essence of the World Bank’s ideology has been identified as an attempt at removing government from the economy in order to obtain credit, by pushing a programme of reform that would cut across the whole economy or a whole sector of the economy.11 Clearly, no economic policy can be separated from the political environment in which it takes shape. One can find in Shihata’s thesis the roots of the current reluctance of international economic organizations such as the World Bank, the IMF and the WTO to es7

8

9

10

11

72

See World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth. A Long-Term Perspective Study, The World Bank, Washington, 1989. See World Bank, Reforming Public Institutions and Strengthening Governments: A World Bank Strategy, The World Bank, Washington, 2000, p. xi. Article I of the IBRD Articles of Agreement connects the purposes of the IBRD with the means it has at its disposal to pursue its purposes. These means are mainly ‘facilitating the investment of capital for productive purposes’, ‘the encouragement of the development of productive facilities and resources in less developed countries’, ‘guarantees or participations in loans and other investments made by private investors’, ‘encouraging international investment for the development of the productive resources of members, thereby assisting in raising productivity, the standard of living and conditions of labor in their territories’. See I. Shihata, Issues of Governance in Borrowing Members: the Extent of their Relevance under the Bank’s Articles of Agreement, Memorandum by the Vice-President and General Counsel, Washington, 1990. See W. Bello, Prospects for Good Global Governance: The View From the South, Report prepared for the Bundestag, Federal Republic of Germany, Focus on the Global South, CUSRI, Chulalongkorn University, Bangkok, 2001, p. 6, available at .

Jan Wouters

Cedric Ryngaert

pouse good governance claims as to their own functioning. If good governance had only a macro-economic connotation, it would be impossible to apply it to the organizational structures of international institutions. Indeed, measures to reduce trade barriers such as cutting tariffs and subventions, privatizing state-owned companies and deregulating and liberalizing the economy are imposed on national governments and have no bearing on international organizations. The major donor countries did not applaud the World Bank’s minimalistic economic approach to good governance. Meeting in the Development Aid Committee (‘DAC’) of the OECD, they gave good governance a more substantive content so that politically sensitive issues encroached upon the World Bank’s development agenda.12 In any case, Shihata’s interpretation was only a fine legal attempt to reconcile the World Bank’s far-reaching good governance plans with the Bank’s Articles of Agreement. In reality, the World Bank did not see the Statute as an impediment to its action and demanded accountability, the rule of law, transparency, anticorruption and even respect for human rights from its borrowing Members.13 These principles became the core content of good governance and were taken up by other international organizations in their dealings with Member States.

2.3.

A Survey of the Content of Good Governance for some International Organizations

The World Bank Institute defines governance as the traditions and institutions by which authority in a country is exercised for the common good. Governance would include the process by which those in authority are selected, monitored and replaced, the capacity of the government to effectively manage its resources and implement sound policies, and the respect of citizens and the State for the institutions that govern economic and social interactions among them.14 Good governance is, logically, appropriate governance. In this section we would like to transcend the vagueness of this sociological concept and try to bring it into the legal realm by means of the identification of a core set of principles guiding good governance. Obviously, every institution puts its own emphasis on the interpretation of the concept of good governance on the basis of its statutory specialism. A survey of the different interpretations should enable us to uncover the core content of good governance. As has previously been stated, the Bretton Woods institutions demand primarily good macro-economic governance or more generally the creation of a framework within which the economy can thrive.15 For the World Bank, this requirement is com12 13

14 15

See T. Fuster, supra note 1. See for the evolution of the World Bank’s focus during the 1990s: World Bank, Governance and Development, The World Bank, Washington, 1992; World Bank, Governance. The World Bank’s Experience, The World Bank, Washington, 1994; World Bank, Helping Countries Combat Corruption. The Role of the World Bank, The World Bank, Washington, 1997; World Bank, Development and Human Rights. The Role of the World Bank, The World Bank, Washington, 1998. See . Since the meeting of the IMF Interim Committee of 29 September 1996 it has been permanent IMF policy that ‘promoting good governance in all its aspects, including ensuring the rule of law, Æ

73

Good Governance: Lessons from International Organizations

posed of both merely macro-economic issues and politically charged topics, such as fighting corruption, socio-economic rights, and even individual political rights if human rights violations are the direct cause of economic effects.16 The IMF emphasizes that its involvement in governance should be limited to its economic aspects17 and, in its traditional purview and expertise, it might indeed have a less politically sensitive area of concentration.18 The European Union used the term good governance for the first time in a Resolution of the Council and of the Member States meeting in the Council on human rights, democracy and development on 28 November 1991.19 This Resolution stated that ‘human rights and democracy form part of a larger set of requirements in order to achieve balanced and sustainable development’, and that, ‘[i]n this context, account should be taken of the issue of good governance’.20 Ever since, the EU has closely linked good governance with human rights and the rule of law in its development assistance programmes.21 Good governance requirements came clearly to

16

17

18

19

20 21

74

improving the efficiency and accountability of the public sector, and tackling corruption … [is] an essential element of a framework within which economies can prosper’. See M. Camdessus, Good Governance. The IMF’s Role, with attached The Role of the IMF in Governance Issues: Guidance Note, approved by the IMF Board of Governors on 25 July 1997, . See for a critical approach to the IMF’s and World Bank’s actions as to democracy: C. Thomas, ‘Does the ‘Good Governance Policy’ of the International Financial Institutions Privilege Markets at the Expense of Democracy?’, 14 Connecticut Journal of International Law, 1999, p. 551-562; as to the follow-up J. Ziegler, ‘Portrait de groupe à la Banque mondiale’, Le Monde Diplomatique, October 2002, p. 32-33. See World Bank, Development and Human Rights. The Role of the World Bank, The World Bank, Washington, 1998. See IMF Executive Board, Good Governance. The IMF’s Role. Guidance Note, Washington, IMF, August 1997, p. v-vi. Ibidem, at 4: ‘The IMF should be concerned with issues such as institutional reforms of the treasury, budget preparation and approval procedures, tax administration, accounting, and audit mechanisms, central bank operations, and the official statistics functions. Similarly, reforms of market mechanisms would focus primarily on the exchange, trade, and price systems, and aspects of the financial system. In the regulatory and legal areas, IMF advice would focus on taxation, banking sector laws and regulations, and the establishment of free and fair market entry. In other areas, however, where the IMF does not have a comparative advantage (e.g., public enterprise reform, civil service reform, property rights, contract enforcement, and procurement practices), the IMF would continue to rely on the expertise of other institutions, especially the World Bank’. See . In the Declaration on Human Rights adopted at the Luxembourg European Council on 28 and 29 June 1991, the term ‘good governance’ was not mentioned. See . Resolution of 28 November 1991, para. 2. The general objective of the European Union’s Development Policy is to contribute to the development and consolidation of democracy and the rule of law, and the respect of human rights and fundamental freedoms (Article 177, § 2 ECT). The EU’s technical, financial and economic assistance should also contribute to the general objective of the consolidation of democracy and the rule of law, as well as human rights (Article 181bis ECT). The Commission has issued a series of communications since 1995 on human rights and democratization to the Council and the Parliament, the latest in 2001, available at .

Jan Wouters

Cedric Ryngaert

the fore in the 2000 Cotonou Agreement.22 In its relations with African, Caribbean and Pacific countries under the Cotonou Agreement, the European Union engages in a political dialogue, which encompasses good governance issues. For the EU, good governance belongs to the same political category as human rights, democratic principles and the rule of law.23 Transparent and accountable governance is an integral part of sustainable development,24 but has apparently no specific macroeconomic content. The United Nations’ Millennium Declaration25 contains a section on ‘human rights, democracy and good governance’ without stating exactly what the latter means. In an introductory article the Declaration links it implicitly with the rule of law.26 But in the ensuing paragraphs the Declaration only mentions respect for human rights, fundamental freedoms and democratic values.27 This bears testimony to the entwining of good governance with the issues of an appropriate legal framework, democracy and human rights principles. The OSCE, which is a pan-European security organization, also takes a special interest in good governance. In the European Security Charter of the OSCE that was adopted during the Istanbul Summit of November 1999, the OSCE Member States promise solemnly ‘to promote a positive framework for good government practices and public integrity’.28 They see good governance basically as an emanation of the rule of law. The OSCE identifies corruption ‘as a great threat to the OSCE’s shared values’ in that it ‘generates instability and reaches into many aspects of the security, economic and human dimensions’. It is worth noting that the Charter distinguishes what it calls ‘the human dimension’ (which encompasses human rights and democratization) from the rule of law annex the fight against corruption (the chapter in which the concept of good governance is mentioned). However, one should not be misled by these conceptual distinctions. After all, the OSCE reaffirms ‘that respect for human rights and fundamental freedoms, democracy and the rule of law is at the core of the OSCE’s comprehensive concept of security’.29 Back in 1991, the OSCE had established an Office for Democratic Institutions and Human Rights (‘ODIHR’) which is today the lead agency in Europe in the field of election observation and is a 22 23 24

25 26

27

28 29

OJ L 317/3, 2000. Article 8 (4) Cotonou Agreement. Article 9 (1) Cotonou Agreement. Compare K. Ginther, E. Denters and P.J.I.M. de Waart (eds.), Sustainable Development and Good Governance, Dordrecht, Martinus Nijhoff, 1995, xxi + 483 p. Adopted by the General Assembly of the United Nations on 8 September 2000. Para. 24 of the Millennium Declaration: ‘We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development’. According to para. 25 of the Millennium Declaration, the General Assembly resolves to fully respect and uphold the Universal Declaration of Human Rights, to strive for the full protection and promotion of human rights, to strengthen the capacity to implement democracy and respect for human rights, to combat discrimination against women, to protect migrant workers, to include all citizens in political processes and to ensure freedom of the media. See , no. 33. Ibidem., no. 19.

75

Good Governance: Lessons from International Organizations

highly respected partner in the field of democratization.30 It is in any case difficult to imagine that violations of human rights and fundamental freedoms could advance good governance. In spite of the link which it makes between good governance and corruption, the OSCE does not focus primarily on corruption but furthers good governance through post-conflict institution-building with a strong emphasis on democratic governance with full respect for political rights. On the other hand, the OECD has been specifically mobilized to fight corruption. It has established a directorate that focuses exclusively on corruption. For the OECD fighting corruption is of the utmost importance, since ‘corruption respects no borders, knows no economic distinctions and infects all forms of government’. In the long run, no country could afford ‘the social, political and economic costs that corruption entails’.31 The organization has addressed corruption through various legal instruments. It addressed the offering of bribes by disciplining its own companies in their dealings with foreign governments in the 1997 Convention on Combating Bribery of Foreign Public Officials in International Transactions.32 The AntiBribery Convention entered into force in 1999. The OECD dealt with the demand side of the bribery problem through the adoption of the 1998 Recommendation on Improving Ethical Conduct in the Public Service. In December 2000 the OECD issued an Action Statement on Bribery and Officially Supported Export Credits. In 2003, a Recommendation on Guidelines for Managing Conflict of Interest in the Public Service was issued to complement the 1998 Recommendation.33 Besides, the OECD assists non-member countries in improving their governance and antibribery standards through a number of outreach activities in the Anti-Corruption Division and the Public Management Service as well as the work of the OECD Development Centre.34 More generally, the OECD has been among the most active organizations encouraging both Member and non-Member countries to implement good governance in all its aspects. Through its ‘Public Governance and Management Directorate’ it furthers – as well as anti-corruption and corporate governance – good public governance in e-government, regulatory reform, public sector budgeting and management, sustainable development and citizen participation in policy-making against 30

31 32

33

34

76

See Annual Report OSCE, 2001, . See . This Convention makes it a crime to offer, promise or give a bribe to a foreign public official in order to obtain or retain international business deals. A related text effectively puts an end to the practice of granting tax deductibility to bribe payments made to foreign officials. The Convention commits the 35 signatory countries to adopt common rules to punish companies and individuals engaging in bribery transactions. So far 28 countries have been subjected to close monitoring to determine the adequacy of their implementing legislation. For each country reviewed, the Working Group on Bribery has adopted a report and an evaluation, which are available on the OECD website . See . See .

Jan Wouters

Cedric Ryngaert

the background of a specific set of principles. These principles of good governance would, in the words of the OECD, transform not only the relationship between governments, citizens and parliaments, but also the effective functioning of government itself.35 It is worth listing these principles, since the OECD’s expertise and guidelines are generally acknowledged as being objective, reliable and useful by Member and non-Member countries alike. They might be regarded as the yardstick for good governance: respect for the rule of law; openness, transparency and accountability to democratic institutions; fairness and equity in dealings with citizens, including mechanisms for consultation and participation; efficient, effective services; clear, transparent and applicable laws and regulations; consistency and coherence in policy formation; high standards of ethical behaviour.

2.4.

Good Governance: Empowerment, Ownership and Participation

International organizations like to stress that they do not impose good governance conditions on their Member States, particularly developing countries.36 Instead, they favour the use of the word ‘empowerment’ and might – in the context of borrowing conditions – point out that the responsibility for governance issues should lie first and foremost with the national authorities.37 The staff of the organizations could then build on the national authorities’ willingness. In using UN Secretary-General Kofi Annan’s beloved term ‘democratic empowerment’ international organizations might equally well refer to the participative involvement of the people in the decision making process as it is the people, rather than the government itself, that provide the impetus for good governance.38 Em35 36

37

38

See . See K. Annan, ‘Help by rewarding good governance’, International Herald Tribune, 20 March 2002: ‘Aid can be much more effective today than it was 20 years ago if it is focused on building the capacity of recipient countries to run their own economies, not on tying them to the business or geopolitical interests of the donor countries. Aid today must aim at developing human resources so that growth can be sustained. It must be directed not at securing loyalty but at rewarding sound governance that will last’. See for example IMF Executive Board, Good Governance. The IMF’s Role. Guidance Note, Washington, IMF, 1997, p. 3, no. 4. See for example: K. Annan, speech at the United Nations Association of Canada, Toronto, 3 December 1997: ‘By good governance is meant creating well-functioning and accountable institutions – political, judicial and administrative – that citizens regard as legitimate, through which they participate in decisions that affect their lives, and by which they are empowered’: ; K. Annan, address at Harvard’s Kennedy School of Government, 24 April 2002, Africa’s New Spirit of Democratic Empowerment. Continent’s Sobering Challenges: ‘What is encouraging about recent developments in Africa is that the pressure for good governance is no longer coming from one side or the other, but from peoples and leaders alike. The spirit of democratic empowerment is challenging all leaders to live up to the ideals of independence, and to deliver the freedoms, the rights and the opportunities that their peoples deserve’.

77

Good Governance: Lessons from International Organizations

powerment in this sense focuses on the good governance principles of democracy: the right to take part in the government through free and regular elections, to hold elected leaders accountable and to demand efficiency and transparency from the government, institutional checks and balances, an independent judiciary, viable political parties, a free press, freedom of expression, protection of minorities and the encouragement of political pluralism,39 all of these issues embedded in the overarching requirement of the rule of law. The World Bank has climbed on to the bandwagon by defining ‘empowerment’ as: ‘enhancing the capacity of poor people to influence the state institutions that affect their lives, by strengthening their participation in political processes and local decision making’.40 Linked with the concept of empowerment is the idea of ‘ownership’. Ownership means that the locus of initiative for development strategies must be in the government, even in the context of assistance or borrowing conditions. The World Bank equates ownership with leadership, which is evidenced inter alia by public support from the top political leadership and broad-based stakeholder participation.41 Ownership does not give the government a blank cheque. On the contrary, real leadership implies setting up structures of participatory governance. Similarly, the ACP-EC Cotonou cooperation takes place on the basis of ownership: ‘for the purposes of implementing the objectives of the partnership, the ACP States shall determine the development strategies for their economies and societies in all sovereignty […]; the partnership shall encourage ownership of the development strategies by the countries and populations concerned’.42

However, the cooperation is also based on the principle of participation: ‘apart from central government as the main partner, the partnership shall be open to different kinds of other actors in order to encourage the integration of all sectors of society, including the private sector and civil society organizations, into the mainstream of political, economic and social life’.43

3.

A Tentative List of Good Governance Requirements

Conducting a survey of 123 countries at the end of the 1990s, Ciulla Kamarck found striking similarities with regard to public administration reform,44 which govern39 40

41

42 43 44

78

Ibidem. See World Bank, Development Report, 2000/01, ‘Attacking Poverty’, at 39, available at . See World Bank Group, Comprehensive Development Framework, Country Ownership, available at . Article 2, first indent, Cotonou Agreement. Article 2 Cotonou Agreement. See E. Ciulla Kamarck, ‘Globalization and Public Administration Reform’, in J.S. Nye and J.D. Danahue (eds.), Governance in a Globalizing World, Washington, D.C., Brookings Institution Press, 2000, p. 229-252.

Jan Wouters

Cedric Ryngaert

ance programmes of international organizations are likely to have contributed to. Ciulla Kamarck distinguishes measures such as devolution or decentralization of central government powers and authorities, privatization of state-owned companies, downsizing the public sector, civil service reform efforts, emphasis on service delivery, performance-based budgeting, regulatory reform initiatives to oversee newly privatized sectors of the economy, injecting competition into government and making use of information technology. These characteristics form the macroeconomic and management core of good governance and point to the origins of good governance as a concept of political economics. Apart from being grounded exclusively upon considerations of economic efficiency, good governance has gradually been defined more broadly as ‘the organization of collective action through institutions defining means, aims and rules’.45 This conception finds its roots in the failure of economic reform programmes during the 1990s, for which the absence of strong and accountable institutions and an adequate regulatory framework were blamed. This prong of good governance, reinforced by the advent of democracy in large parts of the former communist bloc and the developing world, puts emphasis on incremental institution-building. Even though it calls for a greater regulating role for the state, it also allocates civil and political rights to non-state actors, thereby providing the impetus for civil society institutions steering development.46 Considering this prong, Okoth-Ogendo has defined good governance as ‘a processual framework within which legitimate politics in society lies’. In his view, it implies ‘creative interaction designed at liberating human potential, accountability by the state to civic activism, active state-society and societysociety relations, and ultimately, the existence of a constitutional order built on those values’.47 The second good governance prong, which the UN and the EU are particularly supportive of,48 is aimed at establishing a legal order in which societal development can thrive. It accentuates human rights, the rule of law and the trias politica with the possibility of judicial review, and has, accordingly, brought the good governance discourse into the legal realm. The granting of rights to citizens has in turn led to a third prong of good governance, so-called corporate governance. It is based on the observation that not only the government but also citizens and large corporations govern, in that their deci45

46

47

48

See E.C. Murphy, ‘Good Governance: ein universal anwendbares Konzept?’, 57 (8) Internationale Politik, 2002, p. 1. Murphy considers this to be the realization of Max Weber’s legal-rational political culture which is necessary for capitalist development. See E.C. Murphy, supra note 45, p. 6. See H.W.O. Okoth-Ogendo, ‘Governance and sustainable development in Africa’, in K. Ginther, E. Denters and P.J.I.M. de Waart (eds.), Sustainable Development and Good Governance, Dordrecht, Martinus Nijhoff, 1995, p. 107-108. Compare with the eight characteristics of good governance that the Human Settlements directorate of the United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP) has identified: participation, rule of law, transparency, responsiveness, consensus-oriented, equity and inclusiveness, effectiveness and efficiency, and accountability. See UN ESCAP, ‘What is good governance?’, . See B. Boutros-Ghali, An Agenda for Peace, New York, United Nations, 1992, para.1. For the EU: see supra.

79

Good Governance: Lessons from International Organizations

sions may deeply affect stakeholders and even society at large in a globalized world. As rights confer duties, the private sector is invited to regulate itself. When autoregulation proves insufficient, as recent U.S. corporate scandals such as Enron and WorldCom have illustrated, the government may intervene by imposing and monitoring good governance standards. Global governance or good governance by international organizations does not necessarily differ from national or local good governance. Governance principles such as transparency, accountability, efficiency and participatory governance, stripped of their strictly macro-economic connotation, reflect universal values and could apply to any polity or organization. Only recently, however, have good governance requirements been considered to be relevant for international institutions as well. As their decisions sometimes have far-reaching consequences for countries, individuals and enterprises, proper accountable governance by international organizations is in the interests of all. In May 1996, the International Law Association (‘ILA’) established a Committee on the Accountability of International Organizations. At the New Delhi Conference in 2002, the ILA Committee issued its third report in which it discusses extensively the principle of good governance or good administration in international organizations.49 Its recommendations are largely similar to the aforementioned good governance requirements. The ILA Committee puts forward the following elements of good governance: transparency in both the decision-making process and the implementation of institutional and operational decisions; democracy in the decision-making process or participatory governance; access to information open to all potentially concerned and/or affected by the decisions at stake; well-functioning of the international civil service; sound financial management; reporting and evaluation mechanisms.

The ILA Committee’s recommendations will form the point of reference for our assessment of good governance in international organizations, in particular in the World Bank, the IMF and the WTO.

4.

Good Governance by International Financial Institutions and the WTO

In 2000 the Meltzer Commission in the U.S., conducting a review of the international financial institutions (‘IFIs’) for Congress, found that a lack of transparency and accountability were among the main problems of these institutions.50 In the Commission’s view, good governance at the IMF and World Bank could only be 49

50

80

International Law Association, New Delhi Conference, Committee on Accountability of International Organizations, Third Report, Consolidated, revised and enlarged version of recommended rules and practices, 2002, available at . See IFI Advisory Commission of the U.S. Congress, Report, at 19.

Jan Wouters

Cedric Ryngaert

achieved by downsizing their activities. The IMF should stop making loans for the purpose of development or poverty alleviation and only provide short-term liquidity assistance. The World Bank, for its part, should lend only to countries that are unable to borrow from private markets and should aim to convert itself into a grantmaking anti-poverty agency that turns over as much responsibility for development lending as possible to the Inter-American Development Bank, the Asian Development Bank and the African Development Bank. The International Finance Corporation (‘IFC’) and the Multilateral Investment Guarantee Agency (‘MIGA’), two institutions of the World Bank Group, should be abolished altogether. Only such sweeping changes, it was claimed, would enhance effective and accountable governance by the IFIs. The Meltzer Commission dealt with changes in the areas of operation of the IFIs, but it failed to address institutional good governance issues such as transparency and participation in the decision making process in the existing areas of operation. It hardly took into account the efforts which the IFIs had made since the 1990s to increase good governance in this field. In what follows, a survey of good governance undertakings of the World Bank, the IMF and the WTO is presented, along with practical and modest reform proposals to further increase their accountability, without touching on the division of labour between them.51

4.1.

Good Governance by the World Bank

The World Bank was the first international organization to address the issue of good governance when it attributed the African development crisis to a crisis of governance in a 1989 report.52 In the 1990s it swapped its Structural Adjustment Programmes (‘SAPs’) for Poverty Reduction Strategy Papers (‘PRSPs’), with an emphasis on good governance in the borrowing countries. In spite of massive criticism of its perceived lack of accountability, the World Bank also pioneered the introduction of good governance standards in IFIs. It established a Department of Institutional Integrity to investigate allegations of corruption, and an audit committee.53 It created an Inspection Panel settling claims from

51

52

53

See also on the accountability of IFIs: R. Falk and A. Strauss, ‘Toward Global Parliament’, 80 Foreign Affairs, January/February, 2001; J.S. Nye, jr., ‘Globalization’s Democratic Deficit: How to Make International Institutions more Accountable’, 80 Foreign Affairs, July/August, 2001; J.M. Coicaud and V. Heiskanen, The Legitimacy of International Organisations, Tokyo, United Nations University Press, 2001, viii + 578 p.; J.E. Stiglitz, Globalization and Its Discontents, New York, W.W. Norton & Company, 2002, 304 p. See World Bank (ed.), Sub-Saharan Africa: From Crisis to Sustainable Growth, Washington, DC, World Bank, 1989, p. 60-61. The audit committee provides an oversight of financial statement audits and internal control. This committee can nominate an external auditor. In June 2003, the U.S. General Accounting Office (GAO) found that important steps had been taken on internal control, but that additional assessments should be made. See United States General Accounting Office, Report to Congressional Committees on the World Bank Group, GAO-03-366, June 2003, available at .

81

Good Governance: Lessons from International Organizations

individuals affected by violations of World Bank policies and procedures, and it adopted an elaborate Disclosure Policy.

4.1.1 World Bank Department of Institutional Integrity54 The World Bank Department of Institutional Integrity (‘INT’) is an internal World Bank Group unit investigating allegations of fraud and corruption in Bank operations and allegations of staff misconduct. It also assists in preventive efforts to protect Bank funds. When an allegation is submitted (via the free hotline or by direct contact), INT conducts a preliminary inquiry, which might lead to a decision to mount a full investigation. If fraud, corruption or misconduct has been established, loans can be withheld or cancelled. Countries may have to repay affected loans. The involvement of Bank staff can result in the termination of their contract or legal action. Furthermore, INT has compiled a blacklist of firms and individuals involved in malversations. Debarment decisions are made by the World Bank’s Sanction Committee. In its activities, INT is guided by the World Bank Anticorruption Strategy.55

54

55

82

See ; ; . See . The Corporate Committee on Fraud and Corruption Policy is responsible for ensuring that the Bank develops anti-corruption policies and implementation strategies. It is chaired by a Bank Managing Director and includes representatives of the various departments that have a role in anti-corruption initiatives. It consists of various committees and departments, such as the Department of Institutional Integrity and the Poverty Reduction and Economic Management Department (‘PREM’), the latter analysing and conceptualizing good governance.

Jan Wouters

Cedric Ryngaert

4.1.2 World Bank Inspection Panel56 In 1993, the World Bank established the World Bank Inspection Panel, an independent body that would hear and settle claims from individuals affected by violations of World Bank policies and procedures. By doing so, the World Bank contributed greatly to the development of international law in that it created the first settlement mechanism for disputes between individuals and international organizations. The Inspection Panel is not a genuine judicial body, as its decisions are not binding or enforceable. Yet its establishment represents a major step towards greater accountability of international organizations. The World Bank Inspection Panel was established by a World Bank Executive Board Resolution in 1993 under pressure from the United States in the wake of reports revealing systematic violations of World Bank policies and procedures.57 It only has jurisdiction over projects financed by the IBRD and the IDA, and not over projects financed by the International Finance Corporation (‘IFC’) or guaranteed by the MIGA. Since 1998, the latter agencies have a Compliance Advisor/Ombudsman 56

57

See G. Alfredsson and R. Ring (eds.), The Inspection Panel of the World Bank: a Different Complaints Procedure, The Hague, Nijhoff, 2001, viii + 282 p.; R.E. Bissell, ‘Recent Practice of the Inspection Panel of the World Bank’, 91 American Journal of International Law, 1997, p. 741-744; L. Boisson de Chazournes, ‘Public Participation in Decision-Making: the World Bank Inspection Panel’, in E. Brown, A. Rigo Sureda and L. Boisson de Chazournes (eds.), The World Bank, International Financial Institutions and the Development of International Law, Washington, D.C., American Society of International Law, 1999, p. 84-94; D.D. Bradlow, ‘The World Bank’s Independent Inspection Panel’, 33 Indian Journal of International Law, 1993, p. 59-71; D.D. Bradlow, ‘International Organisations and Private Complaints: the Case of the World Bank Inspection Panel’, 34 Virginia Journal of International Law, 1994, p. 553-613; D.D. Bradlow, ‘Lessons From the NGO Campaign Against the Second Review of the World Bank Inspection Panel: a Participant’s Perspective’, 7 ILSA Journal of International & Comparative Law, 2001, p. 247-257; A. Gowlland Gualtieri, ‘The Environmental Accountability of the World Bank to Non-State Actors: Insights From the Inspection Panel’, 72 British Yearbook of International Law, 2002, p. 213-253; K.V.S.K. Nathan, ‘The World Bank Inspection Panel: Court or Quango?’, 12 Journal of International Arbitration, 1995, p. 135-148; A. Rigo Sureda, ‘Process Integrity and Institutional Independence in International Organisations: the Inspection Panel and the Sanctions Committee of the World Bank’, in L. Boisson de Chazournes, C.P.R. Romano and R. Mackenzie (eds.), International Organisations and International Dispute Settlement, 2002, p. 165193; S.R. Roos, ‘The World Bank Inspection Panel in its Seventh Year: an Analysis of its Process, Mandate and the Desirability with Special Reference to the China (Tibet) Case’, 5 Max Planck Yearbook of United Nations Law, 2001, p. 473-521; S. Schlemmer-Schulte, ‘The World Bank’s Experience with its Inspection Panel’, 58 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1998, p. 353-388; S. Schlemmer-Schulte, ‘The World Bank Inspection Panel: Its Creation, Functioning, Case Record and its Two Reviews’, 1 Zeitschrift für Europarechtliche Studien, 1998, p. 347-370; S. Schlemmer-Schulte, ‘The World Bank Inspection Panel: A Record of the First International Accountability Mechanism and its Role for Human Rights’, Washington, College of Law, American University, 2000, available at ; I.F.I. Shihata, The World Bank Inspection Panel, Oxford, Oxford University Press, 1994, xiv + 408 p. See International Bank for Reconstruction and Development, International Development Association, Resolution No. IBRD 91-10, Resolution No. IDA 93-6, September 22, 1993, 34 International Legal Materials, 1995, p. 520-523.

83

Good Governance: Lessons from International Organizations

(‘CAO’) who receives complaints by individuals, performs compliance audits and advises and assists the agencies.58 The World Bank Inspection Panel receives requests for inspection presented to it by an affected party in the territory of the borrower which is not a single individual. Mostly local NGOs file requests for inspection. They must demonstrate that their rights or interests have been or are likely to be directly affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures.59 Exhaustion of local remedies is not required, but the parties must exhaust internal Bank remedies. Upon receiving a request for inspection, the Panel informs the Board of Executive Directors.60 Within 21 days, the Bank Management responds to the Panel61 and within another 21 days, the Panel determines whether the request meets the eligibility criteria, thereby making a recommendation to the Board as to whether the matter should be investigated.62 The Board bears final responsibility as to whether or not to investigate a case. The final responsibility of the Board touches a sore spot in the Inspection Panel procedure. In principle, if the Panel so recommends, the Board authorizes an investigation without making a judgment on the merits of the claimant’s request, and without discussion except with respect to technical eligibility criteria.63 Since the Panel has initially the same competence, it is unclear whether the Resolution vests the Board with more than an appeals function. In practice, the Board has been haunted by indecision due to tensions between directors from developed and developing countries,64 delays65 and political pressure, especially from the Bank Management.66 Therefore, academics and NGOs have pushed for greater Panel independence through empowering the Panel itself to determine which claims to investigate.67 58

59 60 61 62 63 64

65

66

67

84

See IFC, Operational Guidelines for the Office of the IFC/MIGA Compliance Advisor Ombudsman, 2000. IBRD/IDA, Resolution (1993), para. 12. Ibidem, para. 17. Ibidem, para. 18. Ibidem, para. 19. See IBRD/IDA, Conclusions of the Board’s Second Review of the Inspection Panel, 20 April, 1999. See for example Yacureta Hydro Argentina and Paraguay, 30 September 1996, in which the Panel recommended an investigation. The Board did not approve the investigation, but permitted limited ‘review and assessment’ of the Management Action Plan. See for example Rondonia Natural Resources Brazil, 16 June, 1995, in which the Board, considering the case for five months instead of the usual two or three weeks, did not approve the recommended investigation as a World Bank Action Plan had already been undertaken in the meantime. To remedy this, the 1999 Conclusions reaffirmed the importance of the Panel’s independence and stated that the Management will not communicate with the Board on matters associated with the request for inspection, except as provided for in the Resolution. See L. Udall, ‘World Bank Inspection Panel’, contributing paper to the World Commission on Dams, p. 9, available at ; A. Gowlland Gualtieri, supra note 56, p. 253. Interestingly, since 1999, the Board has approved every investigation recommended by the Panel. See Lake Victoria, Environmental Management Project, Kenya, 27 September, 1999, PRODEMNICA, Ecuador, 17 December, 1999, ChadÆ

Jan Wouters

Cedric Ryngaert

Another controversy concerns the applicable law in Inspection Panel procedures. According to the 1993 Resolution, the Panel reviews World Bank projects in the light of their compatibility with World Bank operational policies and procedures, i.e. the Bank’s Operational Policies, Bank Procedures and Operational Directives. It does not include advisory Guidelines, Best Practices and other documents. As the latter are not mandatory, the operational policies and procedures are increasingly converted into advisory instruments, thereby eroding the Panel’s jurisdiction.68 A further important limitation on the Panel’s jurisdiction is the apparent absence of general international law from the Resolution’s standard of review. Arguably, norms of international environmental and labour law would not apply to projects financed by the World Bank. As World Bank law is deemed to be a selfcontained regime, the Bank would be able to modify its policies and procedures at will, without due regard to international law. Recently, in February 2003, the Bank’s new water resources strategy did not follow the November 2000 guidelines of the World Commission on Dams, which could well reflect principles of international law regarding the building of large dams. The Economist quoted a vice-president of the Bank, stating that ‘NGOs say there is no such thing as a good dam or forestry project’.69 The new strategy may reflect the World Bank’s growing unease with the Inspection Panel procedure, which entitles indigenous communities to file claims against huge dam projects financed by the World Bank. Indeed, through civil society pressure, the World Bank’s lending for dam-building has declined from $ 1 billion a year just before the establishment of the Inspection Panel to a mere $ 100 million in 2002, a trend the Bank is bent on reversing.70 Despite its limited powers and the limited number of cases before it (26 as of 1 March 2004), the World Bank Inspection Panel can be considered a success. The adoption of its mechanism by the Inter-American Development Bank (‘IADB’) and the Asian Development Bank (‘ADB’) is testimony to this.71 Although the Panel has no enforcement powers, its reports and recommendations – which are made public – have had a considerable impact on the operations of the World Bank. It has closely monitored the proper implementation of the Bank’s policies and procedures by the Bank’s Management, which often has responded with action plans and mitigations plans. In all cases where the Inspection Panel recommended an investigation, the

68

69 70

71

Cameroon Pipeline, Chad and Cameroon, 22 March, 2001; Coal Sector Project, India, 21 June, 2001; Bujagali Hydropower, Uganda, 27 July, 2001. Various NGOs point to the conversion of the Involuntary Resettlement, Environmental Assessment, Energy and Integrated Pest Management policies. See L. Udall, supra note 67, p. 14. ‘A Survey of Water’, The Economist, July 19th 2003, p. 10. According to Gowlland Gualtieri, since the Bank has stated that it aims to conduct its operations in accordance with multilaterally-agreed environmental standards, internal policies and procedures must be understood as aiming to uphold international law standards found in customary international law and treaty law, general principles of international environmental law and certain non-binding instruments. Accordingly, the Inspection Panel should take them into account. See A. Gowlland Gualtieri, supra note 56, p. 245-246. See IADB, The IADB Independent Investigation Mechanism, Washington, D.C., IADB, 1994; ADB, The ADB’s Inspection Policy. A Guidebook, Manila, ADB, 1995.

85

Good Governance: Lessons from International Organizations

Management has changed the implementation of the Bank’s policies and procedures and, especially since 1999, the Board has followed the Panel’s recommendations as to whether or not to investigate a claim. The Panel has also played a role in promoting transparency and openness.72 Nevertheless, demands for the further judicialization and independence of the Panel have been submitted. Caution is required however, to avoid polarizing Panel, Board and Management. A cooperative spirit between these organs is required to duly modify the implementation policies concerned. Moreover, increased powers for the Panel may deter borrowing countries from applying for loans for investment projects. Some larger countries such as China, India, Turkey and Brazil have indeed already decided to build dams on their own. As The Economist notes, ‘[w]hen countries are left to their own devices, it is a racing certainty that their dams will involve more kickbacks and corruption – and that they will ignore the World Commission on Dams guidelines altogether’.73 The eventual completion of the Western Poverty Reduction Project by China, without World Bank financing after the Panel found significant violations of World Bank policies and procedures in 1999, is a clear reminder of that danger.

4.1.3 World Bank Information Disclosure Policy74 In the aftermath of the scandals that gave birth to the World Bank Inspection Panel, the World Bank started disclosing information in 1993, at about the same time as the IMF. Influenced by the Bank’s President, James D. Wolfensohn, who has since his appointment championed inclusive decision making processes, the 2001 World Bank Information Disclosure Policy states that the ‘timely dissemination of information to local groups affected by the projects and programs supported by the Bank, including NGOs, is essential for the effective implementation and sustainability of projects’.75 The Policy sets forth a mass of detailed provisions about all possible World Bank documents. It contains a presumption in favour of disclosure, although most sensitive documents, such as Structural Adjustment Documents, are subject to optional release.76 72

73 74

75 76

86

See for example World Bank Inspection Panel, Bujagali Hydropower Dam, Uganda, June 2002: ‘It seems evident that full disclosure of the Power Purchase Agreement [which outlines financial arrangements between the government of Uganda and the private corporation that will own and operate the dam] is vital if the intent is to place the public in a position to analyze, understand and participate in informed discussion about the viability of the Project and its impact on the economy and well-being of Ugandans’. The Bank, however, refused to release the Power Purchase Agreement. ‘A Survey of Water’, The Economist, 19 July 2003, p. 10. See See World Bank Disclosure Policy, June 2002, available at . Ibidem, p. 2. A Bank Information Center (‘BIC’) report reviewing the World Bank’s Disclosure Policy argued that the Bank actually operates on a presumption against disclosure, rather than one for disclosure as its policy states. It found that the Bank was not meeting its commitment to disclose certain documents and urged it to release papers not specifically mentioned by the disclosure policy. See Bank Information Center, ‘Implementation of the World Bank’s Disclosure Æ

Jan Wouters

Cedric Ryngaert

In recent years, the World Bank has made an unprecedented information disclosure effort. It established a Disclosure Help Desk for anyone interested in World Bank documents. It also disseminates information proactively via its public information centres (‘PIC’). The most important PIC, the InfoShop, is situated in Washington D.C., yet most other country offices have PICs as well. At the urge of some NGOs, the Bank created the Translation Framework in 2003. Pursuant to this initiative, World Bank documents would be translated into local languages. However, civil society observers still deplore the absence of a harm test or public interest test, the absence of a right of appeal when applications for information disclosure are turned down and the lack of protection for whistleblowers. Furthermore, the World Bank is denounced for only publishing ex post facto information instead of releasing working drafts early in the deliberative process, thereby shunning genuine participatory governance.77

4.2.

Good Governance by the IMF

4.2.1 IMF Information Disclosure78 Traditionally, the IMF has been wary of openness, arguing that it was a technical institution merely accountable to its Members and not to civil society. Before the 1990s, nearly all IMF documents were considered to be confidential. However, calls for enhanced transparency gradually led the IMF to embark on a process of opening up to the public at large.79 After cautious steps in the early 1980s with the establishment of the External Relations Department and the increase in the number of IMF publications, the selection of Michel Camdessus as Managing Director ushered

77

78

79

Policy: an External Review’, January 2002-June 2003, available at . See . Article 19 is an organization lobbying for universal freedom of information, based upon Article 19 of the Universal Declaration of Human Rights: ‘Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. See ; ; W.E. Holder, ‘Publication Policies of the Fund’, IMF Legal Department and IMF Institute, Seminar on Current Developments in Monetary and Financial Law, 7 May 2002, 17 p., available at ; L. van Houtven, Governance of the IMF, Washington, IMF, p. 58-61. See for a summary of the IMF’s publication policies . See for The Fund’s Transparency Policy – Progress Report on Publication of Country Documents, 4 April 2003 . See on information disclosure by the Asian Development Bank and the Inter-American Development Bank ; . According to Holder, increased openness not only resulted from civil society pressure, but also from the increased transparency in the IMF Members, the interest of historical researchers and academic observers and its contribution to better financial markets, especially in the wake of the 1997-1998 Asian crisis. See W.E. Holder, supra note 78, p. 1.

87

Good Governance: Lessons from International Organizations

in a true era of openness, which was boosted by the introduction of the IMF website in the 1990s, receiving 5 million hits a month now. Nevertheless, the IMF has always struggled to strike the right balance between openness as a requirement of good governance and confidentiality as a requirement of international banking. Information disclosure by the IMF started in 1994 with the systematic release of Reports on Recent Economic Developments, which are background studies to Article IV Consultations,80 and Policy Framework Papers. This release was subject to the right of the Member concerned, within 30 days of the Board’s consideration of the document, to object to the document’s release, or to identify confidential data to be deleted prior to its release. A few years later, Article IV Staff Reports were added to the release list. Furthermore, in the light of well-established international and national practice, a new policy was introduced, providing for public access to IMF archives after 30 years. In September 2002, the Board decided to publish the Board minutes after 10 years. In June 2003, it discussed the question of publishing Board minutes after 5 years. Since 1997, Public Information Notices (‘PINs’) have been issued, in the words of the IMF ‘to strengthen IMF surveillance over the economic policies of member countries by increasing the transparency of the IMF’s assessment of these policies, and to increase the transparency of the IMF’s activities’.81 PINs are statements for the public containing a factual background section on the Member’s economy and the Fund’s assessment of the Member’s prospects and policies. They reflect the Chairman’s summing up of the Executive Board discussion and are normally released within five to ten days after the discussion. Their disclosure is subject to the consent of the Member concerned, which is also entitled to delete market-sensitive information. In September 2002, the deletions policy was extended. In 2000, the IMF issued a PIN regarding information disclosure,82 formalized by the 2001 Publication Decision.83 It provides for the publication of all IMF Staff Reports and Article IV Consultations, subject to the consent of the Member concerned.84 Some 60 per cent of Staff Reports and 75 per cent of Article IV Consultations are currently published. For documents stating a Member’s policy intentions, the principle of voluntary release applies. Consent to publication is presumed: the Member must otherwise notify the Fund and provide an explanation to the Executive Board.85 In practice, almost all these documents are published. The Board is now considering a similar regime for Staff Reports and Article IV Consultations. The Publication Decision stated furthermore that the Member concerned can oppose 80

81 82 83 84 85

88

By virtue of Article IV of the IMF’s Articles of Agreement, the Fund must exercise firm surveillance over the exchange rate policies of Members, and must adopt specific principles for the guidance of all Members with respect to those policies. Each Member must provide the Fund with the information necessary for such surveillance, and, when requested by the Fund, must consult with it on the Member’s exchange rate policies. Today, the surveillance extends to monitoring economic development on a global scale. See . PIN, No. 00/81, 20 September 2000. Executive Board Decision No. 12405 (01/02), Selected Decisions 25, 2000, at 503. Ibidem, para. 1. Ibidem, para. 2.

Jan Wouters

Cedric Ryngaert

publication of a PRSP.86 In practical terms, disclosure has become mandatory, as the Board does not approve a PRSP without publication.87 Finally, the Publication Decision also contains a uniform deletions policy prior to the publication of staff reports, country documents and country intention documents. Deletions should be limited to highly market-sensitive information, mainly exchange rate and interest rate matters. Exclusion would not be justified for information in the public domain or politically-sensitive information that is not highly market-sensitive. In cases of serious disagreement between staff and the authorities on a proposed modification to a document, the matter could be brought to the Board for consideration.88 The Board is now considering allowing the deletion of document sections containing highly politically-sensitive information and the publication of draft Letters of Intent before a Board decision. Expanding information disclosure, however, has to overcome several legal hurdles. In July 2003, the IMF asked its staff to study whether there are legal impediments to requiring countries to disclose certain documents. In 2002, the IMF Legal Department and the IMF Institute had already identified some major legal impediments.89 Executive Directors, who may obtain Fund documents distributed in the Executive Board, may communicate these documents to their national authorities, but they have an obligation to protect confidentiality. Documents of the IMF are considered not to be for public use. They should only be distributed to the executive branch and the central bank, and not to the legislative branch. The Executive Board could impose even more restrictive conditions. In order not to breach their obligations to the Fund, Members must therefore prevent any voluntary or forced disclosure, including disclosure under national freedom of information acts. This proved to be no idle warning, as in 2003, Argentinian groups submitted a freedom of information request to their government seeking the side letter90 that their government signed with the IMF earlier that year.91 Under Article VIII, Section 5(a) and Article V, Section 3 of the Articles of Agreement, the IMF has the right to request information necessary for its activities. Information which is deemed confidential by Members could therefore only be distributed when necessary to the Managing Director and the Executive Board. No further publication or communication is allowed.

86 87 88 89 90

91

Ibidem, para. 3. See . Publication Decision, para. 8. See W.E. Holder, supra note 78. A side letter is a confidential communication from a Member to the Managing Director, containing highly sensitive information that cannot be disclosed in the Letters of Intent, which usually contain all policy intentions. The 1999 Board Decision on Side Letters (Executive Board Decision No. 12067 (99/108), Selected Decisions 25, 2000, at 131) urged Members to use side letters sparingly (para. 4) and to restrict them to situations where the publication of the understandings between the Member and the IMF ‘would directly undermine the authorities’ ability to implement the program or render implementation more costly’ (para. 5). See .

89

Good Governance: Lessons from International Organizations

Under Article XII, Section 8 of the Articles of Agreement, the Fund has the right to communicate its views informally to any Member on any matter arising under the Agreement. When monetary or economic conditions and developments directly tend to produce a serious disequilibrium in the international balance of payments of Members, the Fund may publish a report communicating its views to a member, by a decision taken by a special majority of 70 per cent of the total voting power. In other circumstances, the IMF cannot disclose its reports, although it does so with regard to Article IV Staff Reports. A deepening of information disclosure policies will require a thorough review of the IMF’s legal framework as this encroaches upon confidentiality provisions enshrined in the IMF’s Articles of Agreement. These legal objections could be cleared, but it is not certain whether Members have the necessary political will to go ahead. Mandatory information disclosure may hamper the negotiating power of the borrowing countries and lay bare murky deals within the Executive Board.92 Besides, observers such as Van Houtven have expressed reservations at pushing information disclosure too far lest the IMF becomes a rating agency.93 If the IMF succeeds in bringing about information disclosure reforms, it cannot fail to draw inspiration from EC Regulation No. 1049/2001 regarding public access to European Parliament, Council and Commission documents.94 This regulation is a fine example of how good governance works in practice. It gives any citizen of the EU, and any natural or legal person residing or having its registered office in an EU Member State, a right of access to documents of the EU’s political institutions, i.e. the European Parliament, the Council and the Commission.95 Access can be refused where disclosure would undermine the protection of the public interest, the privacy and integrity of the individual, commercial interests, court proceedings and legal advice, and the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.96 Applications for access to a document can be made in any written form, without the applicant being obliged to state the reasons for the application.97 The Regulation urges the institution concerned to handle an application promptly. Within 15 working days from the registration of the application, the institution must either grant access to the document requested, or state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application asking the institution to reconsider its position.98 Where such application is refused or where the institution fails to reply within the time-limit of 15 working days, the applicant is entitled to institute court proceedings 92

93 94

95 96 97 98

90

Ibidem. See also A. Florini, The Coming Democracy. New Rules for Running a New World, Washington, Island Press, 2003, 272 p.; UK Treasury Committee, The IMF: A Blueprint for Parliamentary Accountability, London, 2001, available at . See L. van Houtven, supra note 78, p. 61. See Regulation (EC) No. 1049/2001 of the European Parliament and of the Council, OJ L 145/43, 30 May 2001. Ibidem, Article 2. Ibidem, Article 3. Ibidem, Article 6. Ibidem, Article 7.

Jan Wouters

Cedric Ryngaert

against the institution and/or make a complaint to the Ombudsman.99 Lessons the IMF could draw from the EC include a clear summing up of possible exceptions to information disclosure, the imposition of time-limits and the establishment of review mechanisms, such as a dispute settlement panel or an ombudsman. Apart from considering these modifications, the IMF ought to address the proliferation of informal meetings, of which no official records are kept, and enable stakeholders to take part in public consultations on new policy proposals. These comments hold true for the World Bank as well.

4.2.2 Independent Evaluation Office of the IMF100 The IMF’s Executive Board established an Independent Evaluation Office (‘IEO’) in July 2001. The IEO should provide objective and independent evaluation on issues related to the IMF. In theory, it operates independently of the IMF management and at arm’s length from the IMF’s Executive Board. It enhances the learning culture of the Fund, promotes understanding of the Fund’s work, and supports the IMF’s Executive Board in its governance and oversight. The IEO’s work programme is made public. There is a strong presumption that the IEO reports will be published promptly after consideration by the Executive Board (within the constraints of market sensitivity), unless if, in exceptional circumstances, the Executive Board were to decide otherwise. Feedback and input from external stakeholders and from interested groups will be sought on the IEO’s work programme and on the terms of reference of each evaluation by the IEO. The IEO regularly issues evaluations of IMF activities. It is obliged to report to the management.101 NGOs generally support the sort of participatory governance the IEO engages in. However, they still demand broader involvement of institutional and civil society stakeholders, who could possibly appoint external evaluators of IMF activities. The Bretton Woods Project – an NGO closely scrutinizing the activities of the World Bank and the IMF – has expressed particular concern as to the role of the IEO. Drawing inspiration from the World Bank, it favours an assessment of the effects of IMF operations on people and the environment, not only on a borrowing country’s reserves or willingness to implement reforms.102 To that end, the imbalance between economists, on the one hand, and other social scientists and persons with different backgrounds, on the other, should be addressed. Over time, the IEO could become the equivalent of the World Bank Inspection Panel. Currently it has no competence to receive citizens’ complaints about the actions of the IMF. However, on 22 January 2003, Argentine consumer associations and a human rights organization filed a complaint with the IEO, denouncing the pressure exerted by IMF representatives in negotiations with the Argentine gov-

99 100 101

102

Ibidem, Article 8. See . The IEO’s work programme for the fiscal year 2005 is available at . See .

91

Good Governance: Lessons from International Organizations

ernment.103 It remains to be seen how the IEO will deal with this complaint. In any event, proper handling requires an adjusted procedural mechanism which, for the time being, is entirely lacking.

4.2.3 Integrity within the IMF Since April 2003, the IMF has incorporated in its ‘Factsheet on the IMF and Good Governance’ a heading ‘Ensuring the integrity of the IMF’s own organization’, thereby responding to claims concerning its own governance.104 Unfortunately, the IMF does not espouse a broad interpretation of good governance. It confines good governance to uprooting improper internal conduct by staff and executive directors without addressing issues such as information disclosure, the IMF’s decision making process and the impact of the IMF’s activities on local communities. Since 1998, a Code of Conduct for Staff ensures ethical conduct and prevents corruption among the IMF staff.105 This code is based on the principles of integrity, impartiality and discretion. It requires the staff to be loyal to the IMF, show courtesy and respect, respect diversity, be accountable for delegated tasks, and use IMF property, facilities and supplies properly. Managers are responsible for resolving conflicts. The staff have a responsibility to protect the security of any confidential information and to avoid conflicts of interest. Since 2000, a Code of Conduct for Members of the Executive Board sets forth similar requirements.106 To consider matters relating to this code, the Executive Board has established an Ethics Committee, comprising five Executive Directors. It considers any alleged misconduct by an Executive Director and can make recommendations to the Committee of the Whole of the Executive Board. This committee can take appropriate actions. In 2000, the IMF established the function of Ethics Officer.107 The Ethics Officer is an impartial person who could inquire into alleged violations of the IMF’s rules and regulations and Code of Conduct. The Ethics Officer provides assistance in resolving such matters in a manner that contributes to the good governance of the IMF and helps to maintain its reputation for probity, integrity and impartiality.

4.2.4 Selection of the Managing Director of the IMF The Managing Director of the IMF is a very influential personality in international finance, combining political responsibilities as the IMF’s main interlocutor with Members and other international organizations with responsibilities as the Chairman of the Board of Executive Directors and head of staff. However, the procedure for selecting the Managing Director has been very opaque in the absence of clear guidelines and is therefore hardly reconcilable with requirements of good govern103 104 105 106 107

92

See . See . See . See . See .

Jan Wouters

Cedric Ryngaert

ance. After the vaudeville surrounding the selection of Horst Köhler as successor to Michel Camdessus, the IMF Executive Board established a working group on procedural guidelines for the selection of the Managing Director, the World Bank Executive Board following suit. The joint report of the working groups recommended, inter alia, the creation of an advisory group assessing potential candidates, the establishment of an initial and a final short list, the removal of the age limit and a term restriction.108 Further improvements to the selection procedure could still be made. According to the Bretton Woods Project, the IMF should: (1) open the selection system to all qualified candidates regardless of nationality, (2) establish clear criteria and timetables for selection; (3) separate the selection of heads of international financial institutions from bargaining over other positions; (4) require short-listed candidates to state publicly their views on priorities for the institution.109 In short, a meritbased selection procedure should be established, replacing the current political appointments and the unwritten convention that the IMF Managing Director is a Western European and the World Bank President an American. The election of the Director-General of the World Health Organization may provide useful guidance: on 19 January 2003, the eight short-listed candidates held a two-hour public question and answer session linked across the world via video and teleconferencing. Eventually, the South Korean Lee Jong-wook was selected, ahead of the Belgian Peter Piot. The selection of the IMF’s new Managing Director after the resignation of Horst Köhler on 4 March 2004 could have been a test-case.110 However, in spite of a call by the G-11 IMF Executive Directors representing emerging and developing countries on 19 March 2004 to attract a plurality of candidates representing the diversity of Members across regions,111 the European Ministers agreed in April 2004 in the EU’s ECOFIN Council to support the former Spanish finance minister Rodrigo Rato for the appointment. Although the G-24 Group of developing countries came out in favour of this candidate, they again criticized the selection process for the IMF’s Managing Director, holding that it ‘continues to fall far short of the standards of good governance, transparency, and inclusiveness widely advocated by the IMF and the World Bank in their relations with member countries’.112

108

109 110 111 112

The Bank Working Group to Review the Process for Selection of the President, and the Fund Working Group to Review the Process for Selection of the Managing Director, Draft Joint Report, 25 April 2001, available at . See also M. Kahler, Leadership Selection in the Major Multilaterals, Washington D.C., Institute for International Economics, 2001, p. 19-49, also available at . See . See . See . See the G-24’s communiqué of 24 April 2004 (DC2004-0008), para. 11, to which the communiqué adds: ‘This is inimical to the legitimacy, accountability, and credibility of the institutions’. The communiqué endorsed the call laid down in the 2001 joint report referred to supra note 107. See .

93

Good Governance: Lessons from International Organizations

4.2.5 Reforming the IMF Decision Making Process Debate about the IMF’s quotas and voting system has haunted the IMF since its inception. In spite of the recent good governance calls for greater equity and democracy in the decision making process, it has not moved beyond the deadlock. The formal decision making power in the IMF’s Board of Executive Directors follows the pattern of a normal commercial bank. Each Member’s quota, determining the voting power, is based on the size of the capital subscriptions of the Members. The five major ‘shareholders’ of the IMF (the United States, Japan, Germany, France and the United Kingdom) each have a permanent executive director. The other shareholders, divided into mostly regional groupings, elect the remaining 19 directors. The result of this system is that the 5 permanent Members have an aggregate voting power of 39.28 per cent, whereas the two African groups, consisting of 44 Members, account for a mere 4.39 per cent of the total votes. The IMF’s Articles of Agreement provide for a flexible mechanism for quota adjustment. The Board of Governors can, at intervals of no more than five years, conduct a general review and, if it deems it appropriate, propose an adjustment. At any other time, it may consider the adjustment of any particular quota at the request of an individual Member.113 Since the 1980s, the variables in the quota formula have included GNP, official reserves, current external payments and receipts, the variability of current receipts, and the ratio of current receipts to GNP. In theory, it could be possible to reform the quotas and shift the balance in favour of developing countries by attaching greater weight to any of the existing variables. However, the Quota Formula Review Group, a group of external experts established in 1999 and delivering its report in 2000, found that any modification would not significantly enhance the voting power of the developing countries, but rather the contrary. The Group further held: ‘The inclusion of additional variables in the quota formula can be accomplished only by assigning specific coefficients or weights to them. That requirement in turn raises the question of what criteria should be used to assign the weights. Economic criteria for assigning weights to the factors that have been mentioned […] are not at all obvious and would require either arbitrary assignments of weights or strong input of political considerations in the solution of weights’.114

Observers have proposed non-macro-economic variables such as population and a poverty index, which would be beneficial for developing countries. Broad support has failed to materialize around this idea, however. The Western European Members in particular are not inclined to support a radical overhaul of quota allocation, as the current system is highly advantageous to them. A review would alter the bal-

113 114

94

Article 3, Section 2 IMF Articles of Agreement. See Quota Formula Review Group, Report to the IMF Executive Board, 28 April 2000, at p. 111, available at .

Jan Wouters

Cedric Ryngaert

ance not only with the developing countries but also with other industrialized countries such as the United States and Japan.115 The current quota system has been denounced particularly because it gives the United States veto power over the most important decisions.116 Yet critics easily forget that the inherent minority protection emanating from the widespread use of special majorities within the IMF has at times also served the interests of European countries and developing countries. Special majorities of 70 per cent enable both European Members and groups of developing countries to block decisions, a privilege the United States does not have. On the basis of a special majority, the developing countries were able to discard a proposal that would have given the IMF jurisdiction to pursue freedom of capital movements.117 There must be a way forward maintaining adequate minority protection and greater equity, especially in view of the striking underrepresentation of African countries, which are the main borrowing countries. Their quota share of 4.3 per cent mutes their voice and creates the risk of borrowing conditions being imposed, especially since in the IMF the industrialized countries are the main lenders and the developing countries and countries in transition the main borrowers. The industrialized countries have pointed out that the IMF’s financing needs counsel against giving the developing countries a greater voting share. However, the Bretton Woods Project has noted that repayments of existing loans constitute a significant proportion of the IMF’s income, which would make the IMF less reliant on rich country contributions.118 Hence, if the IMF’s financial system is partly self-supporting, the case for greater decision making power for developing countries is strong.119 The international community realizes that participation of developing countries must be improved. The 2002 Monterrey summit report, for example, states:

115

116

117 118 119

In 2002, the Member States of the European Union held 29.9% of the total voting power, the United States and Japan lagging behind with 17.2% and 6.2% respectively whereas GDP amounted to $ 8.5 trillion, $ 9.3 trillion and $ 4.5 trillion respectively. If the recommendations of the Quota Formula Review Group are followed – attaching greater weight to GDP instead of reserves and foreign trade – the balance could well shift in favour of the United States. See L. van Houtven, supra note 78, p. 9. An 85% voting majority applies for the admission of new members (Article II, Section 2 Articles of Agreement), increases in quotas (Article III, Section 2 (c)), allocation of Special Drawing Rights (Article XV, Section 2) and amendments to the Articles of Agreement (Article XXVIII, (a)). The 2nd Amendment to the Articles of Agreement sets forth over 50 decisions for which special majorities apply. See L. van Houtven, supra note 78, p. 12. See . In para. 10 of its communiqué of 24 April 2004, referred to supra note 111, the G-24 Ministers reiterated that ‘in order to enhance the legitimacy of the IMF and the World Bank, the underrepresentation of developing countries in the decision-making processes of these institutions should be seriously and promptly addressed, as agreed in the Monterrey Consensus. Ministers consider that strengthening the representation of developing countries requires a new quota formula’. In addition, the communiqué states that ‘basic votes should be substantially increased to restore their original role in relation to total voting power’.

95

Good Governance: Lessons from International Organizations

‘We stress the need to broaden and strengthen the participation of developing countries in international economic decision-making and norm-setting. […] We encourage the following actions: International Monetary Fund and World Bank: to continue to enhance participation of all developing countries and countries with economies in transition in their decision-making’.120

In April 2003, the Development Committee, a forum of the World Bank and the International Monetary Fund that facilitates intergovernmental consensus-building on development issues, issued a communiqué elaborating the Monterrey goals.121 Considering this communiqué, the World Bank issued a paper in June 2003 that proposes to raise the voting shares of developing countries, potentially to a combined total of 44.3 per cent of World Bank votes, and to add an additional Executive Director for African countries.122 The note did not address IMF governance, but it is unlikely that its content could not be extrapolated to the IMF. As things stand now, however, the United States is only willing to create a fund for extra research capacity for developing country Executive Directors. It opposes far-reaching structural reforms and chooses to await further research.123

4.2.6 Political Oversight of the IMF: the International Monetary and Financial Committee124 After 1974, an Interim Committee of the Board of Governors on the International Monetary System (‘Interim Committee’) existed within the IMF. It had the responsibility of advising and reporting to, the Board of Governors. In 1999, this Interim 120

121

122

123 124

96

United Nations Financing for Development summit, Monterrey, Mexico, March 2002, Final Consensus, para. 62 and 63, available at . Development Committee Communiqué, April 2003, available at : ‘Enhancing the voice and effective participation of developing and transition countries in the work and decision-making of the Bretton Woods Institutions can contribute importantly to strengthening the international dialogue and the effectiveness of these institutions. We welcomed the recent capacityenhancing decisions by the Executive Boards of the Bank and the Fund and we urge them to consider additional steps that might be taken. These decisions will help to ensure that a more effective capacity exists to articulate the views and concerns of all Members. We encourage potential donors to actively pursue the idea of creating a financing mechanism that could support independent research and advice in key policy areas. Broader and more far-reaching ideas have also been advanced to help achieve enhanced participation in the institutions. We note that a status report by the Fund Executive Board to the IMFC on the adequacy of IMF resources, the distribution of quotas and the strengthening of Fund governance is to be prepared for its next meeting. We requested the Boards of the Bank and Fund to consider and elaborate upon options with a potential for broad support, taking account of shareholder and institutional implications. On this basis, we will pursue our discussions of these matters and requested a progress report for our next meeting’. World Bank, ‘Enhancing the Voice of Developing and Transition Countries at the World Bank’, 9 June 2003, available at . See . See ; L. van Houtven, supra note 78, p. 35-37.

Jan Wouters

Cedric Ryngaert

Committee was replaced by the International Monetary and Financial Committee (‘IMFC’). The IMFC has the same responsibilities – in spite of a proposal of Managing Director Michel Camdessus to turn it into a decision making body as a counterweight to the G7/G8 – but its change of name should signify a strengthening of its role vis-à-vis the Board of Governors. An important feature of the IMFC is that it is composed of government ministers, meeting periodically. As such, it does not form part of the IMF bureaucracy and could provide political oversight and leadership for the IMF system. Its efficiency has been enhanced through the creation of a Group of Deputies, which undertakes preparatory work for the IMFC.125 The political composition of the IMFC is aimed at strengthening the effective support of Members for the IMF’s activities, especially in the wake of the Asian and Russian financial crises in 1998. The IMFC has, however, been weakened by opposition from some developing countries. Assuming responsibilities in the IMFC, they could hardly denounce the IMF activities. Furthermore, at the behest of the G7/G8, parallel forums with overlapping mandates have been established outside the IMF. One of these is the G20, composed of the major development countries, emerging market economies, industrialized countries and the heads of the Bretton Woods Institutions, which advises both the IMF and the World Bank. Another forum is the Financial Stability Forum, which mainly includes regulatory agencies and which oversees global financial stability. The trend of creating forums outside the IMF is vehemently denounced by Van Houtven, who considers this not be in line with requirements of good governance and has called on the G7/G8 leaders to reconsider their cooperation with the IMF.126

4.3.

The WTO

4.3.1 The WTO’s Good Governance Acquis The WTO has been in the line of fire of world civil society. It stands accused of Western imperialism, lack of transparency and lack of parliamentary and civil society participation. Although the criticism is sometimes formulated in a grotesque manner, there is indeed room for much improvement. It should be admitted, though, that the WTO has stepped up efforts to remedy a number of good governance deficits. About 30 per cent of all WTO documents circulate as restricted in order not to harm negotiating positions. Obviously, document restriction hampers transparency and public information. In May 2002, the General Council of the WTO therefore agreed on far-reaching document de-restriction.127 All official WTO documents that 125

126 127

This may erode the tasks of the Executive Board, however. See L. van Houtven, supra note 78, p. 36. See L. van Houtven, supra note 78, p. 38-39. ‘The new de-restriction procedures represent a compromise between developed country Members such as the US, the EC and Canada, on the one hand, and some developing countries, including India and Malaysia, on the other. Industrialized countries had been pushing for automatic derestriction of all Æ

97

Good Governance: Lessons from International Organizations

are not restricted are now made available via the WTO website once they are translated into all three official WTO languages (English, French and Spanish).128 In terms of information availability, this constituted a major breakthrough. Another breakthrough was the establishment of the WTO Dispute Settlement Mechanism (‘DSM’) in 1995. It heralded a new era of the rule of law in international economic organizations by providing for a quasi-judicial recourse against WTO Members unwilling to uphold WTO rules and – more importantly – for genuine enforcement of the decisions taken by the Dispute Settlement Body. The DSM drafters took the view that the compulsory jurisdiction of the WTO’s dispute settlement organs would serve the interests of the economically weaker WTO Members, as they have less access to informal, diplomatic means to enforce their interests. The rule of law would replace power politics in international trade disputes. However, the drafters realized that the system was inherently biased against the developing countries in that they do not have sufficient human and technical resources to take full advantage of the rights that the Dispute Settlement Understanding (‘DSU’) confers on them. That is why the DSU takes into account the needs of developing countries in a number of its provisions.129 Furthermore, the WTO Secretariat puts a qualified lawyer at their disposal with a view to giving extra legal advice and assistance in the settlement of disputes.130 In addition, a number of WTO Members have set up an Advisory Center on WTO Law as an independent international organization to advise developing countries.131

128

129

130 131

98

documents, and one developed country source said that the EC was ‘less than enthusiastic’ with the final decision, as it had been significantly watered down from previous proposals. These Members tend to post their own submitted documents on publicly-accessibly government websites. Some developing countries were less comfortable with releasing documents related to negotiating processes, saying they preferred to maintain the right to give their capitals time to review papers before circulation’. See . See WTO document WT/GC/W/464/Rev.1. Where a delegation specifically requests that a document produced by the Secretariat be restricted, the waiting time for de-restriction has been reduced from eight months to 6-8 weeks. Under the new provisions, documents produced by the Secretariat can be restricted by the issuing body and will be de-restricted 60 days after the date of circulation. Members retain the right to restrict their own submitted documents, though they must renew their restriction requests monthly after an initial period of 60 days or until first consideration by the relevant body. See inter alia Article 4, para. 10, Article 8, para. 10, Article 12, para. 10, Article 12, para. 11, Article 21, para. 2, Article 21, para. 7 and Article 24 DSU. See on this, and more generally on the position of developing countries in the WTO, inter alia T. Bérangère, L’OMC et les pays en développement, Paris, Montchrestien, 1998, xvi + 179 p.; B.M. Carl, Trade and the Developing World in the 21st Century Ardsley, Transnational Publishers, 2001, xx + 550 p.; P. Gallangher, Guide to the WTO and Developing Countries, The Hague, Kluwer, 2000, 343 p.; B. Hoekman, A. Mattoo and Ph. English (eds.), Development, Trade and the WTO: A Handbook, Washington, World Bank, 2002, xxx + 641 p.; A. Narlikar, International Trade and Developing Countries: Bargaining Coalitions in the GATT and WTO, London, Routledge, 2003, xviii + 238 p.; T.N. Srinivasan, Developing Countries and the Multilateral Trading System: From the GATT to the Uruguay System and the Future, Boulder, Westview, 1998, x + 140 p. Article 27 (2) DSU. See the website of the Center: .

Jan Wouters

Cedric Ryngaert

4.3.2 Parliamentary and Civil Society Involvement in the Work of the WTO As is the case in most global132 international organizations, the WTO has no parliamentary assembly to exert certain checks and balances on its decision making bodies. The DSU puts forward a quasi-judicial procedure, but its organs only review the legality – i.e. the conformity with WTO agreements – of the acts of the Members and not of the WTO organs themselves. In other words, there is no organic trias politica in the sense of a check on the decisions of its different councils by the judiciary. Since the failed Ministerial Conference in Seattle (1999) there have been repeated calls for some sort of parliamentary representation or role in the WTO. Although it was announced that a WTO Parliamentary Assembly was created at Seattle,133 it was never composed, let alone functioned. Only a ‘Parliamentary Conference on the WTO’ has meanwhile convened on a number of occasions at the joint initiative of the Inter-Parliamentary Union and the European Parliament.134 In the near future, the WTO will probably have to provide for more parliamentary involvement in its work. Mike Moore, former Director-General of the WTO, admits that parliamentarians have an essential role to play with regard to the ratification of the results of negotiations concluded in the WTO.135 Some could read into these words a rather minimalistic vision, in that an ex post review by parliaments of the result of WTO negotiations gives little voice to parliamentarians, as at that time the deals are done, the agreements are nearly inalterable and the political pressure to give (rapid) consent is very high. However, Mike Moore also emphasized the importance for the WTO ‘of maintaining a dialogue with parliamentarians who are, as elected by the people, the accountable representatives of civil society’.136 It remains very much open in which manner a closer involvement of parliaments in the WTO will take shape: an annual meeting of the aforementioned Parliamentary Conference and the inclusion of members of parliament in official delegations to Ministerial Conferences may be a starting point,137 but this falls far short of a full-fledged parliamentary dimension.

132

133

134

135

136 137

Unlike most ‘European’ international organizations: see, with references to the relevant parliamentary bodies, J. Wouters, ‘De Trias Politica in internationaal en Europees perspectief’, in A. Alen and L.J. Wintgens (eds.), De Trias Politica ruimer bekeken, Brussels, Larcier, 2000, p. 5195. See ‘WTO Parliamentary Assembly is created in Seattle’, Bulletin Quotidien Europe, 4 December 1999. E.g. there has been such a Parliamentary Conference meeting in parallel with the WTO’s Fifth Ministerial Conference in Cancún in September 2003. Reportedly, more than 320 delegates from 70 countries and 5 regional parliamentary assemblies took part. See . See ‘The WTO: The Role of Parliamentarians’, Public Symposium: The Doha Development Agenda and Beyond, Summary Report, 6 May 2002, . Ibidem. See paras 1 and 13 of the Declaration adopted on 12 September 2003 at the Cancún session of the Parliamentary Conference on the WTO, supra note 133.

99

Good Governance: Lessons from International Organizations

Apart from the parliamentary track, the WTO could also follow the civil society track. Indeed, NGOs can bring added value both in terms of expertise and in giving a voice to particular concerns of people, which parliamentarians who are stretched by other duties and/or bound by allegiance to their governments may not always be able to provide. The Marrakesh Agreement calls upon the General Council to ‘make appropriate arrangements for consultation and cooperation with nongovernmental organizations concerned with matters related to those of the WTO’.138 In accordance with this mandate, the WTO Secretariat was given the task by the General Council in the 1996 Guidelines for Arrangements on Relations with NonGovernmental Organizations of playing ‘a more active role in its direct contacts with NGOs … [T]his interaction … should be developed through various means such as inter alia the organization on an ad hoc basis of symposia on specific WTO-related issues, informal arrangements to receive the information NGOs may wish to make available for consultation by interested delegations and the continuation of past practice of responding to requests for general information and briefings about the WTO’.139

In pursuit of the objectives set out in the 1996 Guidelines, the Secretariat has been giving consideration to activities that might be carried out with NGOs. The basic objective of this programme of activities is to facilitate and encourage substantive and responsible discussion with NGOs on issues falling within the WTO’s mandate.140 The Secretariat has allowed NGOs to participate in technical seminars and has organized stand-alone workshops. It remains to be seen how NGOs can be institutionally represented in the WTO. A more developed consultative role for matters within their sphere of action is one obvious way but this presupposes a system for judging their representativeness, legitimacy, democratic functioning and accountability and expertise.

4.3.3 Enhancing the Transparency of WTO Dispute Settlement Although the establishment of the DSM constituted a major step towards good governance in that it enables WTO Members to file complaints with a quasi-judicial body, the WTO proceedings are largely confidential, unlike legal proceedings domestically and in other international dispute settlement forums and tribunals. Expected reform of the DSM failed at the 1999 Seattle Conference and is ever since on the WTO agenda. The United States has been particularly active in calling on WTO Members to enhance transparency in the dispute settlement process. They argue that civil society and Members not party to a dispute have a legitimate interest in the dispute settlement proceedings, given the sometimes wide-ranging impact of the DSB’s 138 139

140

100

Article V.2 of the Marrakesh Agreement establishing the WTO. Guidelines for Arrangements on Relations with Non-Governmental Organizations adopted on 18 July 1996, para. 4 (WT/L/162, 23 July 1996). See .

Jan Wouters

Cedric Ryngaert

recommendations and rulings. In August 2002, the United States issued a paper discussing the improvement of the DSU related to transparency.141 It proposes open meetings of all substantive panel, Appellate Body and arbitration meetings with the parties except those portions dealing with confidential information. The parties’ submissions and written versions of oral statements in the proceedings should be public, again except those portions dealing with confidential information. A final panel report should be made available to WTO Members and the public. Finally, the United States proposes guideline procedures for handling amicus curiae submissions, which are allowed since October 1998 but lack an appropriate legal framework. Through those improvements, the United States aims at facilitating the implementation of DSB recommendations and rulings. The legislative branch, which may be involved in the implementation but is barely involved in the proceedings themselves (supra), could more readily go ahead with reforms when it has ‘confidence that the recommendations and rulings are the result of a fair and adequate process’. Opening up the dispute settlement process would also provide a check on the executive branch as it enables the legislature to control the positions taken by the government. This ought to lead to a confluence of governmental and societal interests, which is a basic feature of good governance. The American proposals have met with strong resistance from other WTO Members. Developing countries argue that the proposals, particularly the proposed guideline procedures for amicus curiae briefs, run counter to the intergovernmental nature of the organization. Apparently they fear that well-equipped organizations from industrialized countries could unduly interfere in the dispute settlement process, thereby sidelining the parties themselves. Other objections include the possibility of trials by media and the risk of making the proceedings more burdensome. Mexico even accused the United States of ‘multilateralizing’ an issue which fell outside the negotiating agenda and would best be handled at the domestic level.142 The African Group submitted its own communication in September 2002.143 The Group did not focus on transparency issues, but denounced the structural impediments to DSM access for developing countries. As far as transparency is concerned, it confined itself to demanding technical and financial assistance for amicus curiae briefs. It rejected opening up the DSM to the public at this point in time.144

141

142

143

144

Contribution of the United States to the Improvement of the Dispute Settlement Understanding of the WTO Related to Transparency, 9 August 2002, available at . See also . Daily Report for Executives, No. 177, pp. A-5 – A-6 (12 September, 2002), The Bureau of National Affairs, Inc., reproduced at . Negotiations on the Dispute Settlement Understanding, Proposal by the African Group, 9 September 2002, TN/DS/W/15, available at . Ibidem, para. 12.

101

Good Governance: Lessons from International Organizations

5.

Concluding Remarks

International organizations are often denounced for their lack of transparency and democracy. However, in the last few years a number of them have pushed through impressive reforms aimed at enhancing good governance standards within their own organizations, especially in the light of their long-standing secrecy. It is not unlikely that the continuous civil society dialogue in which international organizations have engaged lies, ironically, at the roots of the continued criticism. Indeed, the setting up of a dialogue forum has enabled observers to vent their opinions freely visà-vis an organization’s management. Furthermore, gradual information disclosure has flooded the internet with a mass of documents concerning the organization’s activities. The availability of this information increases public scrutiny and renders the organization more vulnerable to often justified civil society demands. A fair observer should not turn a blind eye to the efforts towards participatory and transparent governance, especially by the International Financial Institutions. The World Bank has established a Department of Institutional Integrity to investigate allegations of fraud and corruption in Bank operations and allegations of staff misconduct. It has also created an Inspection Panel, an independent body that may investigate claims from individuals affected by violations of World Bank policies and procedures. Recently, the IMF has established an Independent Evaluation Office, which could over time draw inspiration from the World Bank’s Inspection Panel in hearing individual claims. It has adopted Codes of Conduct for staff and board members and installed an Ethics Officer. Both the World Bank and the IMF have engaged in a gradual process of information disclosure, walking a fine line between confidentiality and the right to information. The WTO, for its part, is now making headway in document de-restriction. Pervasive corruption and chronic mismanagement, reflected by widely publicized scandals, is often at the basis of thorough good governance reforms. A good example is UNESCO, which was forced by its Members to redirect itself towards its central areas of concern, after Members withdrew and scathing audit reports denounced its proliferation of programme activities and staff politicization.145 Good 145

102

UNESCO was burdened by a top-heavy management structure, with no less than 150 directors, many of whom were catapulted out of the Members, particularly France (the headquarters are based in Paris). Over the years, UNESCO has seen such a proliferation of programmes and initiatives beyond the core mandate of the organization, that it now has no system at all for setting priorities. UNESCO had also opened numerous national offices. All this had led to the loss of UNESCO’s leading role within the UN system in the field of education. In June 1999, a Task Force on UNESCO in the 21st Century was set up by UNESCO’s Executive Board as a key component of a comprehensive reform of UNESCO to meet the organization’s longterm challenges and opportunities in its areas of competence – education, science, culture and communication. In October 2000, the Task Force released its Final Report which contains a number of good governance recommendations (Executive Board Document 160/EX/48, available at ). At about the same time, Canadian government auditors who have conducted external evaluations of UNESCO since 1994 and have won the evaluation contract until 2006, revealed nepotism and inefficiency, exemplified by overspending in the agency’s field offices, travel budget overspending, disregard of hiring and promoÆ

Jan Wouters

Cedric Ryngaert

governance reforms do not prevent instances of bad governance from surfacing, though. Yet they prevent them from spreading and gangrening the entire governance structure of the organization. The Eurostat scandal, for example, which was made public in July 2003, could only be uncovered through the evaluation and audit mechanisms that the EU had established in 1999 in the wake of a previous scandal that led to the resignation of the entire European Commission. The European Antifraud Office (‘OLAF’) was able to track the systematic fraud in the Union’s statistical office only by means of the wide-ranging investigative powers and independence which the EU has conferred on it.146 The autonomy and effectiveness of OLAF may invite other international organizations to follow suit. As a matter of fact, even though evaluation units theoretically function at arm’s length from the management of the organization, they are often politically influenced in their inquiries, as experience with the World Bank’s Inspection Panel has shown. International organizations have already gone quite some way in the areas of good management and opening up to the public. However, as far as participatory governance is concerned, much remains to be done. Information to possible stakeholders is often rarely distributed before a decision is made. Even where information is made available in good time, participation, even advisory, is not far-reaching. This is a remnant of the traditional conception of international organizations, which

146

tion rules by the management and manipulation of the project budget (See ). The appointment of a new Director-General, the Japanese Matsuuru, ought to usher in a new era of transparency, uprooting the overkill of overlapping visions and programme ideas without concrete follow-up. A reform strategy paper by UNESCO’s Bureau of Strategic Planning set out sweeping management reforms (see ), which were supported by the re-entry of the United States in 2003, which withdrew from UNESCO in 1984 in protest at its mismanagement. OLAF discovered that some Eurostat officials proposed fake sums of money to be used for contracts and then spent the leftover money as they pleased – this practice was used only with certain ‘trustworthy’ contractors. See . OLAF protects the interest of the European Union, fighting fraud, corruption and any other irregular activity, including misconduct within the European Institutions. OLAF can carry out administrative investigations inside the institutions and has a whole series of powers, such as access to information and the buildings of the Community institutions, with the possibility of checking accounts and obtaining extracts of any documents. In addition, the Office can request information that it judges useful for its investigations from any person concerned. It can carry out on-the-spot inspections of the economic operators concerned, in order to have access to information concerning possible irregularities. See Council Decision of 25 May 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, OJ L 149, 16 June 1999; Commission Decision of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests (notified under document number SEC(1999) 802), OJ L 149, 16 June 1999; Council Regulation No. 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities, OJ L 292, 15 November 1996, .

103

Good Governance: Lessons from International Organizations

renders them merely answerable to their Members. If, however, international organizations intend to retain their legitimacy, they will have to devise a legal framework on the basis of which affected stakeholders can voice their opinion. Furthermore, introducing or strengthening the judicial review of decisions of international organizations and of Members violating internationally agreed standards should not be neglected. There is definitely a long way to go, but developments such as the establishment of the WTO’s Dispute Settlement Mechanism and the World Bank Inspection Panel are hopeful signs. Giving (quasi-) jurisdictional bodies the necessary enforcement powers is possibly one of the greatest accountability challenges. Such ‘teeth’ represent the jewels in the crown of the rule of law, and are essential for upholding good governance.

104

Institutional Frameworks

Ellen Vos*

THE ROLE OF COMITOLOGY IN EUROPEAN GOVERNANCE

1.

Introduction

The flaws in the governance of the European Union have been a concern for many years. Soon after the introduction of the new internal market programme in 1985,1 re-regulatory operations at the Community level were deemed necessary for internal market policy.2 This increasingly led the EU to enter into new policy areas and to gradually erode both territorial – nation-state centred – political governance and nation-state constitutionalism. These developments have put the legitimacy of European governance into question and have urged institutional reform.3 The legitimacy of European governance was particularly debated during the crisis surrounding charges of fraud, nepotism and mismanagement levelled against the Santer Commission,4 the perceived democratic deficit, the problems relating to the forthcoming enlargement as well as the food crises surrounding BSE and dioxins. Soon after the fall of the Santer Commission, the new President of the Commission, Romani Prodi introduced his plans for a thorough reform of the internal operation of the Commission. He was of the opinion that it was equally necessary ‘to radically rethink the way we do Europe; to reshape Europe; to devise a completely new form of governance for the world of tomorrow’.5 To this end, new forms of governance for the EU needed to be promoted. After an elaborate preparation ∗

1 2 3

4

5

Professor of European Union Law, Co-director of Studies, Magister Iuris Communis (LL.M.) programme, Law Faculty, University of Maastricht. I am very grateful to Jorrit Rijpma for his research assistance. COM(85) 310 final. G. Majone (ed.), Regulating Europe, London, Routledge, 1996. See inter alia C. Joerges, ‘The Law’s Problems with the Governance of the European Market’, in C. Joerges and R. Dehousse (eds.), Good Governance in Europe’s Integrated Market, Oxford, Oxford University Press, 2002, p. 3-31. See Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission of 15 March 1999, available at: . R. Prodi, President of the European Commission, 2000-2005: Shaping the New Europe, European Parliament Strasbourg, 15 February 2000, SPEECH/00/41.

107

The Role of Comitology in European Governance

during which the Commission, acting as ‘a rather imperious wizard, albeit posturing in New Age clothing’,6 held both intensive in-house discussions and investigations and discussions with external experts and interested parties,7 the Commission presented a White Paper on European Governance in July 2001.8 In this Paper, the Commission envisages a set of recommendations on how to improve the legitimacy of EU policies and its institutions. It explains the dissatisfaction with EU policies and the functioning of the institutions by, inter alia, the perceived inability of the EU to act effectively in situations of, for example, food scares, a lack of clear communication by the Member States concerning the activities that the EU undertakes, and by the Member States blaming the EU for unpopular decisions, which have been taken by the EU in agreement with or even at the request of the Member States.9 European governance should therefore, according to the Commission, be reformed i) to improve the openness of and participation in EU policymaking, ii) to restore the institutional balance, iii) to improve the quality of its policies, to redesign rules and to promote greater use of different policy tools, in order to enhance efficiency in policy formulation and implementation, and iv) to apply the principles of good governance to its global responsibilities. In this vein, five principles are affirmed as principles of good governance: openness, participation, accountability, effectiveness and coherence.10 Guided by these principles, the Commission considers that the Community method should be revitalized and that more use should be made of novel forms of governance. It is in this context that the comitology mechanism as a specific governance structure has come under fire. The White Paper proposes to abolish the comitology system, or at least, to severely reduce its importance. This proposal addresses a long-standing institutional dispute between the Council, the Commission and the European Parliament concerning the role of committees composed of national representatives created to assist the Commission in the exercise of its implementing powers. Such committees are viewed as being problematic both in terms of institutional balance and legitimacy as they are arguably obscure, highly complex and lack accountability. The European Convention has developed this issue in the context of its desire to simplify the legal instruments of the European Union and to introduce a simplification of ‘Union instruments’, whilst strongly limiting the role of committees that assist the Commission in the implementation of EU legislation. Will this lead to the fall of the committee system? This contribution will analyse what role, if any, comitology may and/or should continue to play in European governance.

6

7 8 9 10

108

D. Curtin, The Commission as Sorcerer’s Apprentice? Reflections on EU Public Administration and the Role of Information Technology in Holding Bureaucracy Accountable, Jean Monnet Working Paper 6/01, New York, 2001), p. 1, available at: . See . COM(2001) 428 final, European Governance – A White Paper. Ibidem, p. 7. Ibidem, p. 10.

Ellen Vos

2.

The Revival of the Community Method

According to the White Paper, the reform of European governance is aimed at opening up policy-making and making it more inclusive and accountable. The EU should therefore make better use of its powers in order to connect the EU more closely to its citizens and to achieve more effective policies. This should be achieved by ‘refocusing the institutions’. The EU should, in the Commission’s view, reinvigorate the Community method, as this would improve the quality of European governance. This should not only optimize the efficiency and coordinative capacity of the institutions but also increase transparency and accountability. This means that all institutions should concentrate on the core tasks assigned to them by the Treaty: the Commission initiates and executes policy; the Council and the European Parliament decide on legislation and budgets; the European Parliament controls the execution of the budget and the Union’s policies; whilst the European Council exerts political guidance.11 The European Court of Justice guarantees respect for the rule of law.12 This method would guarantee both the diversity and effectiveness of the EU and ensure the fair treatment of all Member States from the largest to the smallest.13 At the same time, however, the White Paper recognizes that there is a need to renew the Community method ‘by following a less top-down approach and complementing EU’s policy tools more effectively with non-legislative instruments’.14 The White Paper recognizes that ‘new governance’ forms should be used, such as ‘target-based contracts’, partnership arrangements, co-regulation and the open method of co-ordination.15 Yet, in doing so, the White Paper is quite cautious. The open method of co-ordination, for example, should not, according to the White Paper, dilute the achievement of common objectives in the Treaty. The White Paper is somewhat more lenient towards another form of new governance: agencies. It only allows, however, for the creation of agencies that adopt individual decisions, particularly in areas where a single public interest predominates and the tasks require specific technical expertise. And, it does not approve of agencies being given decision making powers in fields where they would have to arbitrate between conflicting public interests, exercise political discretion or carry out complex economic assessments.16 Moreover, such agencies should not adopt general regulatory measures.

11 12 13

14 15

16

Ibidem, p. 29. Ibidem, p. 8. Ibidem. In this vein it would provide for ‘a means to arbitrate between different interests by passing them through two successive filters: the general interest at the level of the Commission; and democratic representation, European and national, at the level of the Council and European Parliament, together with the Union’s legislature’. Ibidem, p. 4. See more in general concerning novel governance mechanisms, J. Scott and D.M. Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’, 8 (1) European Law Journal, 2002, p. 1-18. COM(2001) 428 final, supra note 8, p. 24.

109

The Role of Comitology in European Governance

Closer reading of the White Paper reveals nevertheless that it does not really embrace new forms of governance but remains primarily faithful to the ‘classic’ Community method. Great emphasis is hereby put on the expansion of the Commission’s own powers in the EU’s policy formulation and foremost implementation, at the expense of the role of the Member States. It is therefore not surprising that the White Paper has been criticized for being ‘over-ambitious in defining the Commission’s role’.17 It is ‘the institutional self-interest of the Commission and its opposition to Member States’18 which underlies the White Paper’s desire to reinvigorate the Community method.

3.

Comitology and the White Paper on European Governance

The White Paper emphasises the need to clarify that, within the EU system, the Commission bears the main responsibility for executing policy and legislation by adopting implementing regulations and decisions. Following this reasoning, the White Paper proposes to restrict the role of the European Parliament and the Council to define (wherever possible with a qualified majority)19 the essential elements,20 leaving the Commission the task of defining the technical details via secondary legislation. ‘A simple legal mechanism’ should hereby be installed which allows the Council and the European Parliament to control and monitor the actions of the Commission.21 This will, in the eyes of the Commission, put the need for maintaining the existing comitology system into question. The Commission concludes that it is necessary to review the existing committees and to assess their continued existence.22 The Commission now seemingly wants to get rid of, albeit phrasing it in more cautious wording, committee-based decision making, praised by Christian Joerges as ‘deliberative supra-nationalism’23 and criticized by Joseph Weiler as ‘a normative disaster’.24 The White Paper makes plain that the Commission no longer wants to be controlled by the Member States’ representatives sitting on the commit17

18

19

20

21 22 23

24

110

B. Kohler-Koch, The Commission White Paper and the Improvement of European Governance, Jean Monnet Working Paper 6/01, New York, 2001, p. 4, available at: . F.W. Scharpf, European Governance: Common Concerns vs. The Challenges of Diversity, New York, Jean Monnet Working Paper 6/01, 2001, p. 1, available at: . COM(2001) 428 final, supra note 8, p. 22: ‘When legally possible, the Council should vote as soon as a qualified majority seems possible rather than pursuing discussions in the search for unanimity’. See for a criticism of resorting more to majority voting, F.W. Scharpf, supra note 18, p. 4. This was already established in the Köster case; Case 25/70, Einfuhr-und Vorratstelle für Getreide und Futtermittel v. Köster, Berodt & Co., [1970] ECR 1161. COM(2001) 428 final, supra note 8, p. 31. Ibidem. C. Joerges, ‘Deliberative Supranationalism’ – Two Defences’, 8 (1) European Law Journal, 2002, p. 133-151. J.H.H. Weiler, ‘Epilogue: ‘Comitology’ as Revolution – Infranationalism, Constitutionalism and Democracy’, in C. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and Politics, Oxford, Hart Publishing, 1999, p. 339-350.

Ellen Vos

tees: the implementing powers should be vested in the Commission alone. In this view, the Commission’s actions should be controlled by means of a ‘simple legal mechanism’, although it fails to explain what such a monitoring system should entail.25 These proposals do not come as a surprise. Although currently, general Council and Parliament decisions may be implemented by the Council itself (in ‘specific cases’),26 or by the Member States, in many fields of the internal market policy it has become common practice that implementing powers are delegated to the Commission in combination with a committee procedure on the basis of Article 202 EC. This comitology system – developed as a variant of the Community method27 – has been the subject of much controversy, already since its ‘invention’ in the early 1960s.28 Comitology, in particular the regulatory committee procedure, has been argued to distort the institutional balance, as it would detract from the Commission’s independent right of decision and thus from Parliament’s right of control. Moreover, it has been accused of being a very complex, inaccessible and opaque system.29 And although the 1999 Comitology Decision30 simplified the procedures, improved their transparency and enhanced the involvement of the European Parliament, also under this new Decision, the rule remains under the management and regulatory committee procedures that, in case of disagreement between the Commission and the committees, the draft decisions proposed by the Commission may or, in the case of the regulatory committees, must be referred to the Council.31 The 1999 Comitology Decision therefore did by no means extinguish the debate on comitology entirely. Committee procedures are still argued to be too complex, the rules governing the choice of the procedure too vague,32 whilst their transparency still leaves much to be desired.33 More importantly, as the White Paper on European Governance 25

26 27

28 29

30

31

32

33

This is taken up by the ‘Amato Report’ (Final Report of Working Group IX on simplification – CONV 424/02) and the Treaty establishing a Constitution for Europe, see below. In accordance with Article 202 EC. Scott and Trubek label these forms ‘new, old governance (NOG)’: J. Scott and D.M. Trubek, supra note 15, p. 2. See inter alia E. Vos, ‘The Rise of Committees’, 3 (3) European Law Journal, 1997, p. 210-229. See inter alia C. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and Politics, Oxford, Hart Publishing, 1999. Council Decision 99/468/EC, Procedure for the exercise of implementing powers conferred on the Commission (1999) OJ L 184/23. See for a discussion of this decision, K. Lenaerts and A. Verhoeven, ‘Towards a legal Framework for Executive Rule-making in the EU? The Contribution of the New Comitology Decision’, Common Market Law Review, 2000, p. 645-686. For reasons of consistency and predictability, the 1999 Decision also specifies criteria to be applied to the choice of the committee procedure. These criteria are not binding in nature. Yet, as the ECJ recently ruled, the Community legislature is nevertheless required to state reasons when it departs from these criteria, see Case C-378/00, Commission v. Parliament and Council (‘LIFE’), [2003] ECR I-00937. This has improved though. See, for instance, COM(2002) 733 final, Report from the Commission on the working of Committees during 2001. Moreover, the agendas of various committees are published on the internet; see e.g. . See also EIPA, Governance by Committee, the Role of CommitÆ

111

The Role of Comitology in European Governance

demonstrates, comitology touches upon the very heart of the exercise of implementing powers at the Community level and herewith the Community’s institutional architecture. It is hence not surprising that with that the questions posed by the Laeken European Council on the future architecture of the European Union, its institutions and their democratic (both ‘input’ and ‘output’) legitimacy,34 and the subsequent creation of the European Convention early in 2002 rekindled the comitology debate.35

4.

‘In between’: the Commission’s Proposal for Reforming the Committee Procedures in Cases of Co-Decision

Without awaiting the outcome of the European Convention, however, the Commission first presented, soon after the White Paper, a set of four proposals to amend the provisions regarding the former committee procedures, based on the 1987 Comitology decision.36 These so-called alignment proposals concern a rather technical exercise that brings the relevant provisions in conformity with the new and simplified committee procedures laid down in the 1999 decision. Second, in line with its Communication ‘Better Lawmaking’ of 5 June 2002,37 the Commission presented in December 2002, in addition to its contribution to the Convention as regards the wider issue of institutional reform,38 a proposal for a new Council Decision amending Decision 1999/468/EC.39 The last proposal envisages the revision of committee procedures under co-decision. It however pointed out that this proposal is to be completely reviewed if the European Convention would reform Article 251 EC. The Commission proposes to eliminate the management procedure, to modify the scope of application of the other two procedures, and to reform the regulatory procedure. According to the Commission the regulatory procedure should be divided into two phases. In the first (‘executive’) phase, the Commission will submit a draft measure to the committee. If this committee op-

34 35

36

37 38

39

112

tees in European Policy-Making and Policy Implementation – Draft Final Report, Maastricht, EIPA, 2002, p. xxi. See . See L. Allio, ‘The Case for Comitology Reform: Efficieny, Transparency, Accountability’, in L. Allio and G. Durand (eds.), From Legislation to Implementation: the Future of EU Decisionmaking, Brussels, European Policy Centre Working Paper/02, 2003, p. 32-72. COM(2001) 789 final, Proposal for a Council Regulation adapting the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted under the assent procedure. COM(2001) 789-1 final, adopted Regulation (EC) No. 1105/2003 (2003) OJ L 158/3; COM(2001) 789-2 final, adopted Regulation (EC) No. 1882/2003 (2003), OJ L 284/1; COM(2001) 789-3 final, adopted Regulation (EC) No. 806/2003 (2003) OJ L 122/1; COM(2001) 789-4 final, adopted Regulation (EC) No. 807/2003 (2003) OJ L 122/36. COM(2002) 275 final, European Governance: Better Lawmaking, p. 4. COM(2002) 728 final/2. For the European Union: Peace, Freedom, Solidarity – Communication of the Commission on the institutional architecture. COM(2002) 719 final, Proposal for a Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission.

Ellen Vos

poses, with a qualified majority, the Commission’s proposal or fails to adopt an opinion, the Commission will have an additional month to find a solution. It is clear that the Commission will be ultimately responsible for the substance of the final draft. In the second (‘supervisory’ or ‘control’) phase, the draft measure shall be submitted to the Parliament or the Council which may, within one month (extended by another month), express opposition to the Commission’s draft – by an absolute majority of Members of Parliament and a qualified majority in the Council. In such a case, the Commission may either submit a legislative proposal (under the codecision procedure), or proceed to adopt the implementing measure, possibly amended in the light of the objections expressed. If no objections are raised within the set deadline, the Commission adopts the act as initially drafted. With this proposal the Commission therefore aims to ‘place the two arms of the legislature’40 on an equal footing. Not surprisingly, the timing of the proposal has been strongly criticized. Not only because the 1999 Decision was just being reviewed by Parliament,41 but first and foremost because it was presented before the conclusion of the European Convention which intended to revise the system of delegation of powers.42 The Commission itself admits that the proposal should be considered as a temporary measure, pending a new system for delegating powers in the new constitutional Treaty.43 It nevertheless explains that the proposal implements the reform announced in the White Paper and that the entry into force of the new Treaty will probably have to be long awaited. Any provisional reform of comitology is, however, likely to meet strong opposition within the Council.44 This, however, has not tempered the enthusiasm of the European Parliament that has nonetheless welcomed the proposal and suggested various amendments so that it will ‘provide a lasting solution to the long standing controversy on the Commission’s implementing powers and the possibility for Parliament to supervise them’.45 According to rapporteur R. Corbett the proposal is even ‘a golden opportunity, not to be wasted, to clarify the respective powers of the legislature and the executive’, whilst it would have a very positive spin-off in the ongoing negotiations on better law-making and the work of the Convention.46

40 41 42 43 44 45

46

Ibidem, p. 5. COM(2001) 789 final, supra note 36. L. Allio, supra note 35, p. 41-42. COM(2002) 719 final, supra note 39, p. 2. L. Allio, supra note 35, p. 42. A5-0266/2003, Second Report on the proposal for a Council decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, Committee on Constitutional Affairs, Rapporteur R. Corbett, p. 13-14. R. Corbett, Comitology: Towards a definitive solution?, 2003, p. 4, available at: .

113

The Role of Comitology in European Governance

5.

Comitology and the European Constitution

5.1.

The Commission’s View on the Future Role of Comitology

The Commission’s proposal not only seems untimely, but also loses credibility when considering the Commission’s vision on the future institutional architecture of the EU and the role to be played therein by committees. In its second contribution to the European Convention (also submitted in December 2002),47 the Commission repeats that in so far as action is necessary at the EU level, the implementation of European legislation should be reserved for the Commission only. It herewith rejects the current possibility for the Council to reserve the right in specific and exceptional cases to exercise its powers of implementation directly (as laid down in Article 202 EC).48 This would clarify the Commission’s responsibility for Europeanlevel implementation of decisions. As regards the exercise of this task, the Commission observes that it receives ‘the opinion and expertise of the national administrations (which are often called upon to implement European legislation in the field) within committees’.49 Although it believes that these committees should continue to exist, it emphasizes that they should only act as advisory committees.

5.2.

The Introduction of a Hierarchy of Norms

The Treaty establishing a Constitution for Europe50 (hereinafter: Constitution) introduces a simplification of EU legislation, including a clearer hierarchy of norms.51 The classification of acts is largely in line with the recommendations made by Working Group IX of the European Convention on Simplification, chaired by G. Amato (the Amato Report).52 Articles I 33-37 of the Constitution thus distinguish between two types of acts: legislative acts (European laws and European frameworks laws) that are adopted by the European Parliament and the Council jointly (on the basis of a revised co-decision procedure),53 and non-legislative acts (delegated regulations and European implementing regulations and European implementing decisions) that are adopted by the Commission. Legislation is to be understood in this context in a formal sense referring to a specific level within a hierarchy of acts.54 It is in particular the category of ‘non-legislative’ acts that touches upon comitology.

47 48 49 50 51

52 53 54

114

COM(2002) 728 final/2, supra note 38. Ibidem, p. 8. Ibidem, p. 13. CIG 87/1/04, REV 2, text of 29 October 2004. See e.g. R. Barents, Een Grondwet voor Europa – achtergronden en commentaar, Kluwer, forthcoming. See already G. Winter (ed.), Sources and Categories of European Union Law: A comparative and reform Perspective, Baden-Baden, Nomos Verlagsgesellschaft, 1996. CONV 424/02, supra note 25. Article III-396, supra note 50. As was explained by Amato, during the debate on 17-18 March 2003, see B.J.J. Crum, Reports on the plenary sessions of the Convention on the Future of Europe, 17 and 18 March 2003, p. 3, available at: .

Ellen Vos

With the ‘delegated regulations’ a new category of acts is introduced. The Amato Report explains this from the need for more efficiency and to get rid of the excessive detail in Community legislation.55 It is the opinion that, at present, there is no mechanism that enables the legislator to delegate the technical aspects or details of legislation whilst retaining control over such legislation. It underlines that under the current regime, the legislator is obliged either to minutely regulate the provisions itself or to entrust to the Commission the more technical or detailed aspects, subject to control by the Member States. To remedy this situation, the Amato Report tells us, a delegated regulation is introduced which would ‘encourage the legislator to look solely to the essential elements of an act and to delegate the more technical aspects to the executive’.56 According to G. Amato, delegated acts ‘are less than laws but still more than mere administrative acts’.57 Interesting is the manner by means of which the report, and hence the draft Treaty, unravels the dual mechanism embedded within comitology, viz., the control mechanisms of both the Community legislator and the Member States. First, Article 36 of the Constitution stipulates that both European laws and framework laws ‘may delegate to the Commission the power to adopt delegated European regulations to supplement or amend certain non-essential elements of the law or framework law’. It adds that a delegation may not cover the essential elements of an area, as that is a matter reserved for the law or framework law.58 Furthermore, European laws and framework laws shall explicitly determine the conditions of application to which the delegation is subject with the possibility to empower the European Parliament or the Council to revoke the delegation or to stipulate that the delegated regulation only may enter into force if no objection has been expressed by the European Parliament or the Council within a period set by these laws (tacit approval). In this the Council will act by qualified majority and the European Parliament by majority. This means that the legislature can directly intervene, without being dependent on the outcome of discussions within a committee composed of national representatives. Second, delegated acts are distinguished from implementing acts. Article 37 of the Constitution determines that the Member States are obliged (‘shall’) to adopt measures of necessary law to implement the legally binding EU acts. Yet, ‘where uniform conditions for implementing legally binding Union acts are needed’, Article 37 (2) requires that those acts must confer implementing powers on the Commission, or in specific cases which are ‘duly justified’ and for CFSP decisions, on the Council. Implementing acts are ‘acts implementing legislative acts, delegated acts or acts provided for by the Treaty itself’.59 According to Article 37 (4), they take the form of European implementing regulations or European implementing decisions. Article 37 (3) furthermore stipulates that European laws lay down, in advance, rules and principles for the mechanisms for control by the Member States of the Commis55 56 57 58 59

CONV 424/02, supra note 25, p. 8. Ibidem, p. 9. B.J.J. Crum, supra note 54, p. 6. Article 36(1), supra note 25. CONV 424/02, supra note 25, p. 9.

115

The Role of Comitology in European Governance

sion’s exercise of implementing powers. This article hereby refines and revises the wording of Article 202 third indent EC. The mechanism for control by the Member States evidently refers to the committee procedures.60 It is noteworthy that the Member States are explicitly required to implement Community law and that committees are a means of control for the Member States, and not for the Council.61

5.3.

Delegation versus Implementation?

The distinction between delegated and implementing acts is not convincing.62 For is it not true that also delegated regulations are acts that implement legislative acts and hence should be considered as implementing acts?63 This view was endorsed by K. Lenaerts in his evidence before the Working Group on the Simplification of Union Instruments. He proposed to distinguish between legislative and executive acts, the latter being subdivided into ‘delegated legislation’ and ‘executive acts proper’.64 In its early case law, the Court was already faced with the question concerning the possibility to delegate powers to bodies other than the Community institutions. By virtue of its judgments in the famous Meroni Cases of 1958, it seems that the Court distinguishes between a ‘true’ delegation of the powers conferred upon the delegating authority, and a situation where the authority grants the powers to a delegate, the performance of which remains subject to oversight by the authority which assumes full responsibility for the decisions of the delegate.65 According to the Court, in the latter situation no ‘true’ delegation takes place. Delegation of powers may accordingly be defined as the transfer of powers from one organ to another, which the latter exercises under its own responsibility. The possibility that powers may be delegated is moreover implicitly alluded to in Article 202, third indent EC and Article 211, fourth indent EC.66 These articles stipulate that the Commission ex60 61

62

63

64

65

66

116

Ibidem. It is noted that the Presidium’s first text for Article 37 merely required that the control mechanisms were consistent with the principles and rules laid down in advance by the European Parliament and the Council. See Article 28(3) of the text in CONV 571/03. Neither is the distinction between legislative and non-legislative acts; see the criticism by the House of Lords’ Select Committee on the EU, The Future of Europe: Constitutional Treaty – Draft Articles 24-33, 12th Report, Session 2002-03, HL Paper 71, p. 11-12, available at: . See Einem (Austrian, NMP) during a debate on the draft texts of these articles in March 2003: see B.J.J. Crum, supra note 54, p. 3. Moreover, delegated acts would simply not be understandable, but might instead be subsumed under the broader category of implementing acts, see Tunne Kelam, speaking on behalf of the majority of the Estonian parliament, ibidem, p. 6. CONV 363/02, p. 4. See also K. Lenaerts and M. Desomer, ‘Simplification of the Union’s Instruments, in B. de Witte (ed.)’, Ten Reflections on the Constitutional Treaty for Europe, Florence, European University Institute, 2003, p. 116 ff, available at: . Case 9-56, Meroni & Co., Industrie Metallurgiche, SpA v. High Authority of the ECSC [1957] ECR 11, at 147-149 and Case 9-56, Meroni & Co., Industrie Metallurgiche, SpA v. High Authority of the ECSC [1958] ECR 53, at 169-171. See already H.H Maas, ‘Delegatie van bevoegdheden in de Europese Gemeenschappen’, 15 SEW, 1967, p. 2-18 and J.V. Louis, ‘Delegatie van bevoegdheden in de Europese GemeenÆ

Ellen Vos

ercises the powers conferred upon it by the Council for the implementation of the rules laid down by the latter.67 A systemic interpretation of Article 211’s positioning within the Treaty (together with certain practical requirements) has led the ECJ consistently to hold that ‘implementation by the Commission’ is to be interpreted widely.68 This determines that whilst the legislative organs must regulate all essential elements, the powers to adopt all measures necessary for the implementation of the rules established, may be left to the Commission.69 These detailed implementation rules70 also include the imposition of sanctions.71 In Case 16/88, Commission v. Council (Fisheries) the ECJ confirmed the broad interpretation of implementation.72 In this Case, the ECJ held that the concept of implementation in the sense of Article 202, third indent, encompasses both the drawing up of implementing rules, and the application of rules to specific cases by means of acts of individual application.73 The ECJ thereby referred in particular to the fact that the Treaty itself did not indicate that acts of individual application were to be excluded.74 Implementation currently also includes the control of the application of Community law and its enforcement. This may be derived from the general tenor of Article 10 EC. As the Court ruled, this article places a general duty upon the Member States, the exact details of which depend in each case upon the Treaty provisions at issue, or on rules derived from the overall scheme of the Treaty.75 By virtue of this article, Member States are required to take all appropriate measures which are necessary to ensure the application of Community law and its supervision and effectiveness.76 This means that Member States must implement Community legislation with the same rigour as national legislation. It is interesting to observe that the Constitution has consolidated bits and pieces of this case law. Hence it confirms the distinction between essential and non-

67

68

69

70

71 72 73 74 75 76

schappen’, 26 SEW, 1978, p. 802-814. See, in this context, in particular Case 16/88, Commission v. Council [1989] ECR 3457. See more recently T. Hartley, Foundations of European Community Law, fifth edition, Oxford, Oxford University Press, 2003, p. 118-124. See, inter alia, Case 23/75, Rey Soda v. Cassa Conguaglio Zucchero [1975] ECR 1279, at 1300; joined Cases 279, 280, 285 and 286/84, Rau v. Commission (Christmas butter) [1987] ECR 1069, at 1120; Case 22/88, Vreugdenhil [1989] ECR 2049, at 2079-2080. See, inter alia, Case 25/70, Köster, supra note 20; Case C-345/88, Butter-Absatz v. Germany [1990] ECR I-159; Case C-357/88, Hopermann v. Bundesanstalt für Landwirtschaftliche Marktordnung [1990] ECR I-1669. It follows from the case law that the notion of detailed rules must likewise be widely interpreted. See Case 57/72, Westzucker v. Einfuhr- und Vorratstelle für Zucker [1973] ECR 321, at 338. See Case C-240/90, Germany v. Commission [1992] ECR I-5383, paras. 38-40. Case 16/88, Commission v. Council [1989] ECR 3457. Ibidem, at 3485 (para. 11). Ibidem. See Case 78/70, Deutsche Grammophon v. Metro [1971] ECR 487. See, for instance, Case 30/70, Otto Scheer v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1197, at 1206, joined Cases 205-215/82, Deutsche Milchkontor GmbH v. Germany [1983] ECR 2633, at 2665-2666 and Case 68/88, Commission v. Greece (Alfonsina) [1989] ECR 2965, at 2984.

117

The Role of Comitology in European Governance

essential elements made by the ECJ (yet, how is this to be established?),77 the latter of which may be delegated to the Commission as well as the obligation for Member States to implement Community legislation. The Constitution intends to divide the concept of implementation into the drawing up of implementing rules (indicating this as delegated regulations), and the application of rules to specific cases by means of acts of individual application (indicating this as implementing acts). Whereas the explicit mention of the concept of delegation in the Constitution may be applauded in terms of transparency, it appears from the ECJ’s case law on the concepts of delegation and implementation that the use of the terminology ‘delegated and implementing acts’ might rather create more confusion than clarification or simplification. The differentiation between delegated and implementing acts should therefore be rejected. Instead the concept of implementation and implementing or executive acts should be adhered to, subdivided into ‘delegated legislation’ and ‘genuine executive acts’ as K. Lenaerts has proposed.

5.4.

Reforming the Institutional Balance of Powers

More importantly, however, the introduction of the concept of delegated regulations implies a radical reform of the institutional balance of powers, between the legislative and executive powers carried out by the institutions and, more broadly, between the Commission and the Member States. The recommendations in the Amato Report, closely followed in the Constitution, therefore do not have a mere technical character, as the name of the Working Group ‘Simplification of Union Instruments’ would suggest, but are of high political value. Articles 36-37 of the Constitution thus give more powers to the Commission to implement the legislative acts of the European Parliament and the Council, and confirm its role as being almost the sole executive. The exercise of the delegated powers would, under the current regime, be carried out under a committee procedure and hence with the possible influence of the Member States. In line with this logic, it is not surprising that the Amato Report was of the opinion that ‘[…] if it were decided to create the new category of delegated acts, it might be possible to simplify certain committee procedures’ for the implementing acts.78 It added that, in particular, it would need to be examined whether the regulatory committee procedure should be amended or abolished.79 The need to simplify the comitology system has also been underlined by the Franco-German contribution to the European Convention, although without any further indication as to how this should be achieved.80 In its contribution to the European Convention the Commis77

78 79 80

118

What is essential is a very subjective and imprecise concept. The same applies to what is technical; see the House of Lords’ Select Committee on the EU, supra note 62, p. 11-12. See CONV 424/02, supra note 25, p. 12. Ibidem. CONV 489/03, contribution by the President of the French Republic, Mr Jacques Chirac, and the Chancellor of the Federal Republic of Germany, Mr Gerhard Schröder, entitled: FrancoGerman contribution to the European Convention concerning the Union’s institutional architecture, p. 3.

Ellen Vos

sion it remains faithful to the Community method. Coherent with this seems to be the reinforcement of the powers of the Commission, getting rid of the committee procedures in the exercise of the powers delegated to it. Whilst acknowledging the merit of committees by means of which it receives opinions and expertise from national administrations, they should, with regard to the implementing acts, according to the Commission, ‘continue to exist but only as advisory committees’.81 The text laid down in Articles 36-37 of the Constitution (seemingly supported by many Convention members without much ado) demonstrates that comitology has mainly been an inter-institutional conflict, emphasizing only one of the dual functions of comitology: control by the Council and/or Parliament, and that has been largely disregarded by the Member States. The elimination of committees with regard to delegated regulation is replaced by the ‘simple control mechanism’ giving Parliament and Council the right to revoke the delegation or to veto the proposed Commission measures (tacit approval). A few observations must here be made. First, it should be noted that the distinction between delegated and implementing acts must be determined on a case by case basis, depending on the degree of political discretion they involve. Apart from the fact that the terminology used is regrettable (see section 5.3.), it should be recognized that at times it will be difficult to establish in advance whether a measure is of a mere technical nature or involves more political issues, as we have learned from the cases involving comitology. In addition, it may be wondered if and how the ‘simple’ mechanism of control by the Parliament or the Council will work in practice. How will the Council be able to identify that a Commission draft delegated act exceeds the delegation provided for or touches upon major political sensitivities? Here it is useful to recall the function of comitology as a safety net (‘filet’) or alarm mechanism signalling that a topic was possibly to be considered as politically sensitive. Since the Plumb/Delors agreement of 1988 which gave Parliament the right to be informed, Parliament has struggled to set up a coherent system for controlling of committee-based decision making by the Commission. Today, 15 years later, this system seems to work quite well. Abolishing the committee system and conferring a right to recall on the Council would mean that also the Council has to set up an accurate internal system to follow the Commission in the exercise of its delegated powers. Such a mechanism would therefore have to carried out by either the Council’s working groups or COREPER.82 In view of the fact that members of COREPER are often also involved in comitology,83 and in view of the fact that these issues will 81

82

83

COM(2002) 728 final. 13. See also Article 80 of Penelope, available at: . See for an analysis of the operation of the Council working groups, E. Fouilleux, J. De Maillard and A Smith, ‘Council Working Groups: Their Role in the Production of European Problems and Policies’, in EIPA (ed.), Governance by Committee, the Role of Committees in European Policy-Making and Policy Implementation – Draft Final Report, Maastricht, EIPA, 2002, p. 58-87. Often, Member State representatives in the former Standing Committee on Foodstuffs, for example, appeared to have already participated in the preparation of directives under the umbrella of the COREPER. See E. Vos, Institutional Frameworks of Community Health & Safety Regulation, Oxford, Hart Publishing, 1999, p. 110-189. According to a general study on committee practices, compositional changes in committees occurred relatively infrequently: InstiÆ

119

The Role of Comitology in European Governance

in principle be of a political nature,84 it will be most likely that COREPER itself will fulfil this role.85 More fundamental, however, is the disregard of the valuable input that Member State representatives/bureaucrats might have in implementing legislative measures at the Community level. The ease with which comitology has been eliminated in the exercise of delegated powers is quite remarkable.86 Have Member States been fully been aware of the impact of these proposals? Certainly, decision making by the Commission alone for delegated regulations will in most cases be more efficient, as far as time is concerned, than under comitology. But, will it also be more effective? A recent comprehensive study of committees, co-ordinated by the European Institute of Public Administration,87 confirms the many positive elements of comitology. It concludes: ‘Our evidence suggests that comitology committees are very effective in reaching consensus in difficult questions of implementation and in managing routine applications of EC law. More important is their contribution to the efficient and effective implementation and application of EC policy in and through the Member States. Abolishing them altogether or reducing the frequency of their meetings would seriously endanger efficient policy application and implementation. Abolishing the management and/or regulatory procedure could negatively affect the delicate balance between Commission and Council in policy execution’.88

Over the years decision making involving comitology has therefore led to a more consensual and problem-solving approach to decision making between the Commission and the committees. Being composed of both bureaucrats and national representatives at the same time, committees act as co-ordinating bodies between supranational and national, and governmental and social actors and may (but not always do) voice national viewpoints. The participation of committees in the executive action of the Commission may therefore be argued to create a framework for cooperative and deliberative multilevel policy-making,89 and makes the action of the Commission more democratic and ‘closer to the citizen’,90 whilst producing good and effective decision making. Committees may, moreover, contribute to a

84 85

86

87 88 89

90

120

tut für Europäische Politik, Study on Comitology – Characteristics, Performance and Options, Preliminary Final Report, Bonn, Institut für Europäische Politik, 1989. Which is the decisive criterion to determine whether matters involve delegated regulations. See G. Durand, ‘Montesquieu wakes up: Separation of Powers in the Council of Ministers’, in L. Allio and G. Durand, From Legislation to Implementation: the Future of EU Decision-making, Brussels, European Policy Centre Working Paper/02, 2003, p. 19. Some convention members, however, proposed amendments to delete the article on delegated regulations: amendment Nos.: 107 Kirkhope, 108 Kelam and others, 109 Stockton and 110 Heathcoat-Amory. See Reactions to draft Articles 24 to 33 of the Constitutional Treaty – Analysis, CONV 609/1/03 REV1, p. 13. EIPA, supra note 33. Ibidem, p. xxiii. See for an elaborate discussion on the role of committees, inter alia C. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and Politics, Oxford, Hart Publishing, 1999. Also K. Lenaerts and A. Verhoeven, supra note 31, p. 664.

Ellen Vos

less top-down approach in the sense of less ‘Brussels’ (i.e. the Commission) – and more ‘Member State’ participation, and therefore, citizen participation. Moreover, committees may complement the limited staff resources in the Commission.91 Certainly, in terms of efficiency and transparency, the comitology practice has left much to be desired. Although these drawbacks have to some extent been addressed by the 1999 Comitology Decision, they still beg for improvement. Practice, moreover, demonstrates that it may be extremely important that national positions are also taken into account in the implementing phase for reasons of proper enforcement and compliance with Community decisions. When disregarding national positions, for example, the Commission may be faced with unpleasant situations in which Member States refuse to apply and enforce Commission decisions that were adopted without their consent.92 The role of the Member States in this phase corresponds to the need to involve in the decision making process those that are most directly affected by it, viz. those who must implement the decisions at the national level.93 Effective decision making and better policies, as the Commission proclaims to strive for, therefore require that Member States are consulted in the implementing phase and thus also with regard to what the Constitution terms, ‘delegated regulations’. The question then remains whether this should occur within the framework of comitology or within another looser mechanism or network.

6.

The Future of Comitology

What role may comitology continue to play in European governance? It is time to recall some recent figures on comitology. In December 2002 the Commission reported that the number of committees amounted to 247 in 2001.94 A relative majority of the committees (106 out of 247) consisted of committees working exclusively under the regulatory procedure, followed by a considerably smaller number of committees working exclusively under the management procedure (76). These committees met on a total of occasions during 2001, of which Agriculture, not surprisingly, leads the field with 365 meetings, followed by Taxation and customs union (116) and Health and consumer protection (122). These meetings took 1654 days in total. Furthermore, a key indicator of the intensity of activities is the number of consultations which the Commission places on a committee’s agenda. These can be all sorts of items: formal opinions, preparatory exchanges of views in the run up to a formal opinion, simple communications from the Chair (or national delegation). In 91 92 93

94

See L. Allio, supra note 35, p. 39. As occurred, for example, with regard to certain GM products. See K. Lenaerts and A. Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’, in C. Joerges and R. Dehousse (eds.), Good Governance in Europe’s integrated Market, Oxford, Oxford University Press, 2002, p. 76. COM(2002) 733 final, supra note 33, p. 8. It is not clear how the Commission arrives at this low number. In its report it states that the number of comitology committees has been calculated by the sector of activity on the basis of the list of committees published in the Official Journal in 2000, updated as of 31 December 2001.

121

The Role of Comitology in European Governance

2001 there were 5,613 such consultations.95 According to the Commission the large number of consultations in certain policy sectors (Agriculture: 1984, Health and Consumer Protection: 1,138, and Taxation and Customs Union: 562) again reflects the intensity of the work that was delegated to the Commission via the comitology procedures in these areas. These figures show a very intense and shared working pattern between the Commission and the committee members implementing the legislative acts enacted by the Council and often the Parliament, and hence seem to endorse the framework for co-operative and deliberative multilevel policy-making, depicted above. The Commission indeed reports that the small percentage of referrals (less than 1%) to the Council compared with the total number of instruments adopted by the Commission (under the management or regulatory procedure) moreover shows that the work of the committees achieves a high degree of consensus and that the proposals by Commission representatives are normally approved by the committees.96 Removing the involvement of comitology in the adoption of delegated regulations would certainly mean that the number of meetings will be reduced, and probably the number of committees too, which would save time and money. Yet, at the same time, more work is likely to be transmitted to the Council and hence the COREPER and/or its working groups that have to monitor the Commission in the exercise of its delegated powers. This, in turn, might trigger negotiations between several national positions within the COREPER or working groups, which might not, in view of the fact that they form part of the legislative function, be very appropriate. In addition, in view of the ‘thin lines’ with their own governments, to whom they are directly responsible,97 the accountability of the members of these bodies may even be more problematic than that of comitology members. The need for Member State involvement also with regard to delegated regulation was recognized by the European Convention members G. de Vries and T. de Bruijn who proposed in this context the setting up of a national consultation and control mechanism.98 With this option the risk is incurred that new and perhaps complex procedures will be installed. In its conclusions, the Amato report rejected the option of introducing the right of recall for the Parliament and the Council in the existing Article 202 EC on implementing powers instead of inserting a new article on delegated regulations. It was argued that implementing acts in principle fall within the competence of the Member States and are only exceptionally adopted by the Commission (or in certain cases by the Council), and that when they are adopted by the Commission they are subject to monitoring by committees made up of representatives of the Member States, whilst these acts would consequently not be matters which concern the legis-

95 96 97 98

122

Ibidem, p. 11. Ibidem, p. 5. EIPA, supra note 33, p. xv. Amendment No. 18 to the Draft Constitution. See CONV 779/03, Reactions to the draft articles of the revised text of Part One (Volume I), p. 15.

Ellen Vos

lator.99 This reasoning is however very static and not convincing as it sticks to the current situation whilst it neglects the preconditions of successful multilevel governance in Europe and denies the need for transnational partnership between the authorities of the various levels of governance. Importantly it does not acknowledge that any reform and simplification of legislative instruments and procedures should address the indissoluble intertwining of delegation of powers and comitology. It is indeed not questioned that in view of the current shortcomings of comitology as regards its transparency and efficiency and the enlargement (that has increased the number of committee members considerably), comitology needs to be reformed. One should however be prepared also to rethink comitology at this stage and to lay down its governing principles in the Constitution, whilst leaving its practical implementation to secondary legislation. True simplification and rationalization of Union instruments and functions would hence, in my opinion, require a revision of Articles 36 and 37 of the Constitution on delegated regulations and implementing acts. Both articles should be replaced by one article, that will make the Commission in the same manner responsible for all executive (or non-legislative) acts: hence merging both delegated (Article 36 Constitution) and implementing acts (Article 37 Constitution), whilst retaining the conceptual difference. In order to encourage the legislator to delegate more powers whilst retaining control, one could more simply give both arms of the legislator (both European Parliament and Council) a right of recall over delegated acts,100 if one believes that this will really bring about more delegation.101 For the same reason, instead of giving the legislator an option to delegate as is now envisaged (‘European laws and European framework laws may delegate’), one could think of introducing a quasi-obligation to delegate powers to the Commission: ‘shall in principle delegate’. Whilst it must be clear that it is the Commission that bears the responsibility for all the executive acts, account must also be taken of the successful practice of management and regulatory committees, forcing the Commission to consider national situations and problems and to take objections advanced by committee members more seriously than would be the case with merely advisory committees. It would therefore enhance the effectiveness of Union measures. This could be achieved by giving committees as a matter of principle in certain cases (to be established in advance by the legislator) the possibility to request that a topic be referred to the legislator (by qualified majority). Such a mechanism (laid down in the Consti99

100

101

In that context and on such premises the Group recommended resolving the problem by introducing a new category of acts (to be found in various guises in the Constitutions of a number of Member States), CONV/571/03, supra note 61, p. 17. This solution was indeed suggested by some Convention members, ibidem. Amendment No. 143 by Kelam and others allowed for the possibility of recall by the legislator for implementing acts (in line with his Amendment No. 108, which proposed to delete delegated acts), see CONV 609/03, Reactions to draft Articles 24 to 33 of the Constitutional Treaty – Analysis, p. 13. When retaining comitology and introducing the possibility for committees to have the matter sent back to the legislator, there would seem to be no need for the Council to set up an internal monitoring system.

123

The Role of Comitology in European Governance

tution) would then truly simplify and could even replace the existing management and regulatory committee procedures. On a more practical level and to enhance transparency and visibility, one could furthermore envisage reducing the number of committees by gathering several committees touching upon similar topics under one umbrella committee, as has already been done with respect to the committees operating in food safety, now constituting the Standing Committee on the Food Chain and Animal Health.102 In order to reduce the costs involved and to counter problems relating to the increasing number of committee members, one could think of an increased use of the novel communication tools such as intranet and a greater use of working groups, whilst strictly limiting the access to the meetings of committees to committee members (one per Member State with one alternate). Furthermore, in combination with the use of a closed communication circuit, more use could be made of written consultations.103 Taken together, these rules could prove to be a progressive step towards a true simplification and rationalization of EU instruments and could refocus its Union’s institutional balance of powers. In this manner, comitology still has an important role to play in European governance.

102

103

124

Article 58, European Parliament and Council Regulation 178/2002 laying down the general principles and requirements on Food Law, establishing the European Food Safety Authority and laying down procedures for food safety (2002) OJ L 031/1. One could here learn from the written committee procedure followed for the authorization of high-tech or biotech medicinal products (see Article 3 of Commission Regulation 1662/95, (1995) OJ L 158/4). This practice has been formalized as a standard procedure by the new regulation on the authorization of medical products. See Article 10 of European Parliament Council Regulation 726/2004 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (2004) OJ L 136/1. This means that in the authorization of medicinal products, the opinion of the Standing Committee on Medicinal Products for Human Use will be given in writing and each Member State will be allowed 22 days to forward written observations on the draft decision to the Commission (this may be shorter in cases of urgency), whilst each Member State will be allowed to require in writing that the draft decision of the Commission is discussed by a plenary meeting of the Standing Committee.

Ronald van Ooik*

THE GROWING IMPORTANCE OF AGENCIES IN THE EU: SHIFTING GOVERNANCE AND THE INSTITUTIONAL BALANCE

1.

Introduction

In the United States of America important parts of the state’s executive functions have been delegated from the general executive to a number of specialized independent agencies. Most of them perform important functions and exercise genuine powers of decision making in specific fields such as food safety (Food and Drug Administration, FDA) and air safety (Federal Aviation Administration, FAA). This division of executive powers and responsibilities between the federal government and the specialized agencies originates from the period of the so-called New Deal: in return for a significant expansion of federal executive powers, the US Congress (and the US Supreme Court) demanded from President Roosevelt a ‘farming out’ of a number of technical, specialized tasks to independent bodies, thus putting a significant part of US administrative tasks at a safe distance from the general executive.1 In the European Union such an intensive ‘agencification’ of executive functions has, up until now, not taken place. A large number of independent agencies exist which function within the Union’s constitutional set-up, such as monitoring centres on drugs or racism, an agency for translating EU documents, independent bodies in the social sphere, et cetera2 However, upon closer consideration, it appears that their tasks and responsibilities are rather modest. Often the mandate of European agencies does not extend beyond the gathering of (technical) information, processing data, producing annual reports, organizing conferences, et cetera. *

1

2

Senior lecturer and researcher in EU law at the Europa Institute, University of Amsterdam and the Europa Institute, Utrecht University; Senior researcher at the Amsterdam University Center for International Law (ACIL). See, e.g., the interesting work by G. Majone, ‘The Agency model: the growth of regulation and regulatory institutions in the European Union’, Eipascope, 1997, p. 9-14. See also X.A. Yataganas, Delegation of Regulatory Authority in the European Union. The relevance of the American model of independent agencies, Harvard Jean Monnet Working Paper 03/01, 2001. Discussed in more detail in section 3, infra.

125

The Growing Importance of Agencies in the EU

Therefore the basic rule in the EU is still very much that the European Commission performs the really important executive functions, not independent agencies. For example, it is the Commission that applies the general rules on competition policy to individual cases, not some independent ‘European Cartel Agency’;3 and it is the Commission that decides on the amount of money to be granted in individual cases from the various structural funds. The role of Agencies in this consists of assisting the Commission in performing its executive functions. The Commission adopts implementing decisions in the field of agricultural policy, including those on food safety; it can however ask for the opinion of the food specialists from the European Food and Safety Authority (EFSA).4 And in setting the most appropriate standards for emission, in the framework of EU environmental policy, the European Commission can, if necessary, use the help of the environmental specialists from Copenhagen.5 In recent years, however, we can clearly see a strong tendency towards equipping EU agencies with more ‘impressive’ powers. The Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) may be considered as the first of this ‘new generation’ of European agencies, since it has been given the power to determine, in a legally binding manner, whether or not applications for trademarks will be registered.6 A similar power to decide in individual cases has been given to the more recently established European Aviation Safety Agency (EASA) which is responsible, inter alia, for granting certain type certificates.7 These new types of European agencies are often referred to as the regulatory agencies, as opposed to the more ‘traditional’ information-collecting agencies.8 In the Commission’s White Paper on European Governance (from 2001)9 the importance of agencies, especially the regulatory agencies, is emphasized as well. Due to capacity problems within the Commission, in the future technical functions 3

4

5

6

7

8 9

126

Although, as from 1 May 2004, the national competition authorities (NCAs) and the national courts will have to play a much more important role, given the wish/need to decentralize the application of the competition rules. See Council Regulation 1/2003/EC of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1/1). See also C.D. Ehlermann, ‘Reflections on a European Cartel Office’, Common Market Law Review, 1995, p. 471-486. See Articles 22 and 23 of Regulation 178/2002/EC of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority (EFSA) and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1, amended by Regulation 1642/2003, OJ 2003 L 245/4). Where the European Environment Agency has its seat. See Council Regulation 1210/90/EEC of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network (OJ 1990 L 120/1). See Title III, section 1 of Regulation 40/94/EC on the Community Trade Mark (OJ 1994 L 11/1). On the OHIM, see also sections 3.2, 4.2 and 5.2. Regulation 1592/2002/EC of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1). See also section 3.2. In section 3.3 a third type of agency (the operational/executive agency) will be discerned. ‘European Governance – A White Paper’, COM(2001) 428 final (OJ 2001, C 287/1).

Ronald van Ooik

should be more often delegated to independent bodies. In the Commission’s view, the creation of autonomous EU regulatory agencies in clearly defined areas will improve the way in which rules are applied and enforced across the Union. Such agencies should be granted the power to take individual decisions in the application of regulatory measures.10 They should operate with a degree of independence and within a clear framework established by the legislature.11 The regulation creating each agency should set out the limits of their activities and powers, their responsibilities and requirements for openness. The main advantages of agencies are, in the Commission’s view, their ability to draw on highly technical, sectoral know-how, the increased visibility they give for the sectors concerned (and sometimes the public) and the cost savings that they offer to business. The creation of agencies is also a useful way of ensuring that the Commission focuses its resources on core tasks.12 More recently, after the Commission submitted its White Paper, one could even get the impression that for each and every new threat that the European Union is faced with (fraud; bio terrorism; unsafe food; planes falling from the sky; chemical attacks; unsafe trains; diseases; illegal fishing; violations of human rights; etc.) the first reaction is to set up yet another Agency.13 It is not the purpose of this contribution to describe the major features of all present and future European agencies separately (their aims, tasks, institutional setup, etc.).14 Rather the focus is on some – what might be called – horizontal legal issues of the ‘agencification’ process now going on in the European Union. First, how and where can we situate the many European agencies within the broader context of the institutional set-up of the European Union? (section 2). Next, their functions and purposes are analysed in order to categorize the European agencies. A distinction is made between information-gathering, regulatory and operative agencies (section 3). Do judicial and/or non-judicial means for supervising the acts and actions of European agencies exist? In other words, how independent is an ‘independent’ or ‘autonomous’ agency after all? (section 4). These analyses will allow one of the core issues to be addressed: do agencies constitute a serious threat to the principle of institutional balance? Agencies are not mentioned at all in the Treaties, 10 11

12 13

14

See also section 3.2. On the ‘degree of independence’ of agencies, see further section 4 (dealing with administrative and judicial supervision). White Paper on European Governance, OJ 2001 C 287/1, at p. 19-20 See, e.g., Decision of 13 December 2003 on the location of the seats of some new offices and agencies of the European Union (OJ 2004 L 29/15). It already determines the seat of the following new agencies: European Railway Agency (Lille-Valenciennes); European Network and Information Security Agency, ENISA (Greek town); European Centre for Disease Prevention and Control (Swedish town); and the European Chemicals Agency (Helsinki). A Community Fisheries Control Agency (CFCA) would have its seat in Vigo, Spain; and the Human Rights Agency (HRA) would settle in Vienna. On fighting fraud through ‘agencification’, see J. Vervaele, ‘Towards an Independent European Agency to Fight Fraud and Corruption in the EU?’, European Journal of Crime, Criminal Law and Criminal Studies, 1999, p. 331-346. For such a more detailed overview of their tasks and functions, see, e.g., E. Chiti, ‘The Emergence of a Community Administration: The Case of European Agencies’, Common Market Law Review, 2000, p. 309-343.

127

The Growing Importance of Agencies in the EU

so that delegating too many powers to them may have a negative effect on the way in which the main political institutions (Commission, EP, Council of Ministers) are able to perform their duties and undertake their responsibilities. This issue of institutional balance was already raised before the European Court of Justice (ECJ) in the 1958 Meroni cases (section 5).

2.

The Place of Agencies in the Union’s Legal Order

First the way in which agencies are established will be discussed and, closely related to this aspect, the issue of how to select the correct legal basis for decisions setting up European agencies (section 2.1). Next, we will take a look at the internal structure of agencies; most of them have been given a similar three-organ structure (section 2.2). After that, it is possible to try and give a more precise definition of an independent agency, functioning within the context of the European Union (section 2.3). Finally, some attention is given to the sensitive issue of Agencies’ language regimes (section 2.4).

2.1.

Establishment and Legal Basis

The independent agencies discussed in this article are by definition established on the basis of an act (very often a Regulation) of the EC institutions. The birth, life and (unlikely) death of European agencies are therefore a matter of secondary Community law; from the text of the EC/EU Treaties, one cannot infer their existence, their tasks, nor their competences/responsibilities.15 This is the reason why almost all (older) agencies were set up under the general legal basis of Article 308 (ex 235) of the EC Treaty. This provision gives the Council the power to act if it proves ‘necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers’.16 It was thus assumed that nowhere else in

15 16

128

See also infra, section 2.3 (the third characteristic feature of EU agencies). In general on this legal basis, see in particular the German literature, M. Bungenberg, Art. 235 EGV nach Maastricht. Die Auswirkungen der Einheitlichen Europäischen Akte und des Vertrages über die Europäische Union auf die Handlungsbefugnis des Art. 235 EGV (Art. 308 EGV n.F.), Baden-Baden, Nomos, 1999, 315 p.; D. Dorn, Art. 235 EWGV – Prinzipien der Auslegung. Die Generalermaechtigung zur Rechtsetzung im Verfassungssystem der Gemeinschaften, Kehl, Engel, 1986, 186 p.; U. Häde and A. Puttler, ‘Zur Abgrenzung der Art. 235 EGV von der Vertragsänderung’, Europäische Zeitschrift für Wissenschaftsrecht, 1997, p. 13; G. Henckel von Donnersmarck, Planimmanente Krisensteuerung in der Europäischen Wirtschaftsgemeinschaft. Funktion und Beeutung des Art. 235 EWG-Vertrag, Frankfurt/M., Metzner, 1971, 113 p. See also I.E. Schwartz, ‘Article 235 and the law-making powers in the European Community’, International and Comparative Law Quarterly, 1978, p. 614; P. Ferraiuolo, Le pouvoir normatif de la Communauté européenne en vertu de l'article 235: possibilités et limites, Aix-en-Provence, Université d’AixMarseille, 1999, 854 p. In the Constitution, Article 308 EC returns as the ‘flexibility clause’ of Article I-18: ‘If action by the Union should prove necessary within the framework of the policies defined in Part III to attain one of the objectives set by the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on Æ

Ronald van Ooik

the EC Treaty could more specific competences – provisions explicitly empowering the institutions to set up auxiliary bodies or organs –be found.17 The (alleged) absence of a lex specialis provision does not mean that Article 308 EC can be used automatically. The Court in its ECHR opinion, concerning the competence of the Community to accede to the Human Rights Convention, made this clear.18 This general legal basis should itself confer the requisite powers on the Council to create independent bodies, having legal personality, and a life of their own. This question has not been discussed very thoroughly in the legal literature.19 Usually it is simply assumed that Article 308 EC may be used because a more specific Treaty basis does not exist, and the primary purpose of the agency in question is, one way or the other, related to one or more of the objectives/activities of the Community, these days listed in Articles 2 and 3 of the EC Treaty. This is in line with the idea that Article 308 EC can be used for all ‘unforeseen cases’, despite the Court’s ‘warnings’ in Opinion 2/94. Sometimes, in addition to Article 308 EC, other legal bases are also used for setting up independent agencies. Article 284 EC deals with the collection of information, and it is cited in the Regulation establishing the European Monitoring Centre for Racism and Xenophobia (in Vienna). The preamble justifies the use of this dual legal basis as follows: ‘Whereas the powers provided for in Article 213 of the Treaty (now art. 284 EC) to collect and analyse information on several of the Community’s areas of activity do not permit such information to be collected through a specialized, autonomous body with its own legal personality. Whereas Article 235 (now art. 308 EC) must therefore also be used as the legal basis for the establishment of such a body’.20

Quite remarkably, the Monitoring Centre for Drugs (Lisbon) was established on the basis of Article 308 alone.21 Until recently, only few exceptions existed to the practice of using Article 308 EC as a legal basis for establishing independent agencies, alone or together with other Treaty bases. But already in 1990 the European Environment Agency (EEA, seated in Copenhagen) was set up on the basis of, solely, the Treaty provisions on

17

18 19

20

21

a proposal from the Commission and after obtaining the consent of the European Parliament, shall take the appropriate measures’. See however infra, on the establishment of the European Environment Agency, which was set up on the basis of Article 130 S of the EEC Treaty. Opinion 2/94 [1996] ECR I-1759, in particular at points 34-36. See, however, the pioneer work by R.H. Lauwaars, ‘Auxiliary Organs and Agencies in the EEC’, Common Market Law Review, 1979, p. 365 and R.H. Lauwaars, ‘Art. 235 EEG als grondslag voor de schepping van een Europees merkenrecht’, Sociaal-Economische Wetgeving, 1981, p. 533-548. See the 26th consideration in the preamble to Council Regulation 1035/97/EC of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia (OJ L 151/1). Council Regulation 302/93/EEC on the establishment of a European Monitoring Centre for Drugs and Drug Addiction (OJ 1993 L 36/1, Regulation last amended by Regulation 1651/2003, OJ 2003 L 245/30).

129

The Growing Importance of Agencies in the EU

environmental protection (Art. 130 S of the EEC Treaty, now Art. 175 EC).22 The importance of the choice of this legal basis is, of course, that the lex specialis of (now) Article 175 EC provides for a different decision making procedure (co-decision and hence, in principle, qualified majority voting in the Council) than the one that applies under Article 308 EC (Commission proposal, unanimous voting in the Council and EP consultation). And the procedure followed may in turn have an important influence on the final content of the act establishing the Agency in question.23 This early example of the EEA illustrates that, apparently, it is not that clear that more specific EC Treaty bases (than Art. 308) are lacking. In the European Parliament the issue was raised as well. It was asked whether the Regulation on the European Agency for the Evaluation of Medicinal Products (EMEA) could be amended on the basis of Article 95 EC (internal market) instead of Article 308 EC.24 And the Commission, within the framework of the IGC 2000 on institutional reforms, came up with a note on inserting specific legal bases into the EC Treaty for establishing ‘decentralized agencies forming a separate legal entity’, thus implying that before Treaty amendment only the lex generalis of Article 308 EC conferred the requisite powers on the Council.25 More recently, however, there is clearly less hesitation in using only specific legal bases. With regard to the European Aviation Safety Agency (EASA), the Commission stated that ‘the legal basis of the proposed Regulation is Article 80 paragraph 2 (transport), which is consistent with the objective of the proposal and all the legislation adopted so far in the field of aviation, particularly where safety and environmental protection are concerned’.26 Subsequently, the Council adopted the EASA Regulation on the basis of the provisions on transport only (Article 80 EC), without using Article 308 EC as an additional legal basis. Both the Council and the

22

23

24

25

26

130

Council Regulation 1210/90/EEC of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network (OJ 1990 L 120/1). In general on this Agency, see P. Davis, ‘The European Environment Agency’, Yearbook of European Law, 1994, p. 313-349. See, e.g., Case 165/87 Commission v. Council [1988] ECR 5545. Using a large number of legal bases at the same time for setting up agencies, however, brings the risk of encountering socalled Titanium Dioxide problems: in the ECJ’s view, co-decision cannot be combined with unanimous voting in the Council. See Case C-300/89 Commission v. Council [1991] ECR I-2867 and, more recently, Joined Cases C-164/97 and C-165/97, EP v. Council [1999] ECR I-1153 (‘Protection of Forests’), at paragraph 14. In the case of the EFSA Regulation such problems of procedural incompatibility did not arise since all the legal bases used (mentioned in the text infra) provide for qualified majority voting. See the MEP question in OJ 1998 C 310/91. The EMEA was set up by Council Regulation 2309/93/EEC of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214/ 1). See the ‘Note on Article 309 EC’ (Brussels, 22 February 2000, Confer 4711/00). In the Treaty of Nice, however, such a legal basis for setting up ‘decentralized agencies’ cannot be found. See the Explanatory Memorandum to the Commission’s proposal for a Regulation on establishing common rules in the field of civil aviation and creating a European Aviation Safety Agency (OJ 2001 C 154 E/1).

Ronald van Ooik

European Parliament thus established the EASA, in accordance with the co-decision procedure.27 The same choice of legal basis was made in respect of other agencies in the field of transport policy, namely the European Maritime Safety Agency (EMSA) and the European Railway Agency (ERA).28 The Regulation establishing the European Food Safety Authority (EFSA) refers to the provisions on agricultural policy (Article 37 EC), the internal market (Article 95 EC), common commercial policy (Article 133 EC) and public health (Article 152(4)(b) EC), but not to Article 308 EC, so that the EFSA Regulation was adopted in accordance with the co-decision procedure as well.29 Who is right and who is wrong in this legal basis discussion? The answer depends on whether one emphasizes the fact that a new institutional entity was established within the context of the EU or, on the other hand, whether the primary objectives and tasks of the agency in question are taken as the main criterion. A ‘centre of gravity’ theory which emphasizes the importance of creating a new, independent legal person for which the EC Treaty does not contain specific powers, will easily lead to Article 308 EC. If one takes the (substantive) objectives and tasks of the European agency as the main criterion (for choosing the legal basis of the founding measure), then this will often lead to a lex specialis (legal basis for transport, the internal market, etc.), and so often to the co-decision procedure. For example, under the ‘institutional’ approach the regulation on the European Agency for Safety and Health at Work (seated in Bilbao)30 was correctly based on Article 308 (ex 235) EC, since nowhere else in the EC Treaty is it said that the Council may create an independent agency with executive tasks in the sphere of social policy/the working environment. The ‘objectives and tasks’ theory would however lead to the lex specialis of Article 137 (ex 118 A) EC, because the primary objectives and tasks of this agency lie in the sphere of social policy/working environment, aspects of European social policy that are mentioned in Article 137 EC.31 27

28

29

30

31

See the Preamble to Regulation 1592/2002/EC of the European Parliament and of the Council establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1; last amended by Commission Regulation 1701/2003/EC, OJ 2003 L 243/5). See, respectively, Regulation 1406/2002/EC of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ 2002 L 208/1; amended by Regulation 1644/2003, OJ 2003 L 245, p. 10) and Regulation 881/2004/EC of the European Parliament and of the Council establishing a European Railway Agency (OJ 2004 L 164/1). See the preamble to Regulation 178/2002/EC laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). Article 152(4)(b) EC was inserted by the Amsterdam Treaty and confers on the Council/EP the power to adopt measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health. Council Regulation 2062/94/EC of 18 July 1994 establishing a European Agency for Safety and Health at Work (OJ 1994 L 216/1, amended by Council Regulation 1643/95/EC of 29 June 1995, OJ L156/1). See Article 2 of Regulation 2062/94/EC: ‘In order to encourage improvements, especially in the working environment, as regards the protection of the safety and health of workers as provided for in the Treaty and successive action programmes concerning health and safety at Æ

131

The Growing Importance of Agencies in the EU

Given this lack of clarity regarding the legal basis for acts establishing EU agencies, several proposals for improvements have been presented. For example, the Dutch Scientific Council for Government Policy, in a report on the enlargement of the EU, proposed to insert a general provision on the establishment of agencies into the EC/EU Treaties. This would create greater legal certainty as to the choice of legal basis, and hence the decision making procedure that must be followed.32

2.2.

Legal Personality and Internal Structure

Almost all EU agencies have explicitly been given ‘legal personality’. In their constituent acts, an additional provision concerning legal personality within the sphere of national law is often added. The trade mark office OHIM, for example, ‘is a body of the Community, and it has legal personality. In each of the Member States, this Office shall enjoy the most extensive legal capacity accorded to legal persons under their laws’. The OHIM may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.33 The Agency for Safety and Health at Work ‘shall have legal personality’ and ‘it shall enjoy in all the Member States the most extensive legal capacity accorded to legal persons under their laws’.34 The emphasis is thus clearly on the legal capacity of agencies to act on the national plane, more specifically, under national civil law. But because a more general provision exists (‘the agency shall have legal personality’, without further specification) it must, probably, be assumed that they are meant to be able to act in the international public sphere as well.35 Regarding the internal structure of agencies, it turns out that almost all of them have been given a similar structure. Usually three main organs can be distinguished: (1) a plenary body which is the policy-making organ and, therefore, the highest organ within the agency (usually called the Management Board, or Administrative Board, or Governing Board); (2) an executive body of limited composition

32

33

34

35

132

the workplace, the aim of the Agency shall be to provide the Community bodies, the Member States and those involved in the field with the technical, scientific and economic information of use in the field of safety and health at work’. Naar een Europabrede Unie, WRR, report no. 59, 2001, p. 272-273. The ECJ is now explicitly asked to rule on the issue, see Case C-217/04, UK v. EP and Council, case pending (OJ 2004 C 201/8). The UK argues that the Regulation establishing the European Network and Information Security Agency (ENISA) falls outside the scope of Article 95 EC and the only appropriate legal basis for such a measure could be Article 308 EC. See Article 111 (1) and (2) of Regulation 40/94/EC on the Community trade mark (OJ 1994 L 11/1). Article 7 of Council Regulation 2062/94/EC of 18 July 1994 establishing a European Agency for Safety and Health at Work (OJ 1994 L 216/1). See, e.g., also Article 3 of Regulation 2667/2000/EC (European Agency for Reconstruction). The Dublin-based Foundation for Living and Working Conditions has, exceptionally, only been given legal personality in the national sphere. See Article 4 of Regulation 1365/75/EEC of the Council of 26 May 1975 on the creation of a European Foundation for the improvement of living and working conditions (OJ 1975 L 139/1).

Ronald van Ooik

which is responsible for day-to-day management (the Director, the Executive Director); (3) an organ which is composed of technical experts in the area in which the agency is working (the Scientific Committee, the Experts, the Advisory Forum). The plenary organ is composed of persons who are appointed by the governments of the Member States and by the EU institutions (the Council and/or European Commission). The central organ of agencies is therefore of a dual nature, partly ‘intergovernmental’/partly ‘supranational’, but it is usually chaired by a Commission representative.36 All members have one vote and a majority, usually a two-thirds majority, adopts the decisions.37 In the ‘social’ agencies, a certain number of the members of the plenary organ are appointed by organizations of employers and employees’ trade unions.38 The executive body (Director, Executive Director) is responsible for daily business, the Director represents the agency externally, he or she is responsible for the proper preparation and execution of the decisions adopted by the plenary organ, the Director prepares and publishes the agency’s yearly report, et cetera. The Director is accountable to the plenary body (Administrative Board) for his/her activities.39 Finally, the specialized organ brings together the real experts, the scientists, who are ultimately responsible for the technical quality of the agency’s opinions and reports. Within the EFSA, for example, a Scientific Committee and permanent Scientific Panels are responsible for providing the scientific opinions of the Food Authority. They have the possibility, where necessary, of organizing public hearings. The Scientific Committee is composed of the Chairs of the Scientific Panels and six independent scientific experts who do not belong to any of the Scientific Panels.40 The European Training Foundation has an advisory forum appointed by the governing board. The members of the forum are selected from experts among training and other circles concerned in the work of the Foundation, taking into account the need to ensure the presence of representatives of the social partners, of those in-

36

37

38

39

40

See, e.g., Article 4 of the Regulation on the European Agency for Reconstruction (OJ 2000 L 306/7). See, e.g., Article 4(7) of Regulation 2667/2000/EC (regarding decisions of the Governing Board of the European Agency for Reconstruction) and Article 14 of Regulation 1406/2002/ EC (which stipulates that the Administrative Board of EMSA takes its decisions by a twothirds majority). The Management Board of EFSA/the Food Authority decides by a simple majority, see Article 25(5) of Regulation 178/2002/EC. See Article 4 of the CEDEFOP Regulation (OJ 1975 L 39/1), and Article 8 of the Regulation on the European Agency for Safety and Health at Work (OJ 1994 L 216/1). See, e.g., Article 11 of Regulation 2062/94/EC on the European Agency for Safety and Health at Work (OJ 1994 L 216/1) and Article 55 of the EMEA Regulation (OJ 1993 L 214/1). See Article 28 of Regulation 178/2002/EC. On this, see L. Buonanno, S. Zablotney and R. Keefer, ‘Politics versus Science in the Making of a New Regulatory Regime for Food in Europe’, 5 (12) European Integration online Papers, 2001 ().

133

The Growing Importance of Agencies in the EU

ternational organizations active in the provision of training assistance, and of the eligible countries.41

2.3.

The Definition of an Agency in the Context of the European Union

According to the US Administrative Procedures Act, an ‘agency’ means ‘each authority of the Government of the United States, whether or not it is within or subject to review by another agency’. It is however added that a number of specified bodies, such as the US Congress, the courts of the United States and courts martial and military commissions, do not fall under this concept of (American) agency.42 Within the EU context, such a general definition does not exist. As a result, there exists some confusion as to what exactly makes a certain organizational entity an ‘agency’ and not a ‘body’, ‘organ’, ‘office’ or ‘committee’ of the EC/EU. Still, for several reasons the exact institutional qualification of the many bodies/organs/ agencies in the European Union is of great practical importance. For example, some provisions of the EU Charter on Fundamental Rights offer protection against acts of ‘institutions’ only, others apply to acts of ‘bodies’ and/or ‘agencies’ as well.43 Taking into account what has been said in the previous sections, the following elements should, in my view, be considered as the main characteristics of agencies. 1. The body/organ must enjoy a certain degree of independence from the main EU Institutions, in particular from the European Commission. This (more or less) autonomous position is proclaimed to the outside world by explicitly stating that the body in question has legal personality.44 The independent status of the Agency is the main difference between it and ‘ordinary’ committees – they are not (sufficiently) independent but simply assist the Commission in conducting its various executive/delegated tasks. The Committee on Excise Duties, for example, forms part and parcel of the Commission’s internal organization. As the Court of First Instance pointed out: ‘It must be emphasized that the deliberations of the Committee on Excise Duties, and the documents of that committee, are to be regarded as being the deliberations and documents of the Commission. The main task of the committee, which was constituted in pursuance of a Community act, is to assist the Commission, which presides over it and provides its secretariat. The Commission thus draws up the minutes which the committee adopts. In addition, it appears that this committee does not have its own administration, budget, archives or premises, still less an address of its own. Consequently, the committee is not a natural or legal person, nor a Member State or any other na-

41 42 43

44

134

See Article 6 of Regulation 1360/90 on the European Training Foundation (OJ 1990 L 131/1). See § 551 of the US Administrative Procedures Act. See, for example, the Charter provision on good administration, in the future to be found in Article II-101 of the EU Constitution: paragraph 1 applies to ‘the Institutions, bodies and agencies of the Union’, whereas paragraph 4 applies to the Institutions of the Union only. See also D.M. Curtin and R.H. van Ooik, ‘The Sting is Always in the Tail. The Personal Scope of Application of the EU Charter of Fundamental Rights’, Maastricht Journal of European and Comparative Law, 2001, p. 102 and p. 106-108. See supra, section 2.2.

Ronald van Ooik

tional or international body, and cannot be regarded as ‘another Community institution or body’ within the meaning of the code of conduct’.45

Absolute independence is however not a precondition for being an EU agency. As will be discussed infra, apart from judicial review, agencies’ acts are often subject to review by the European Commission.46 This does not detract from the fact that supervision will only be exercised exceptionally and that to a large extent agencies, in their daily functioning, remain independent from Commission interference. Of course, this still leaves quite some room for doubt: how much independence is actually needed in order for a body to be qualified as a (sufficiently independent/ autonomous) agency? A body such as Eurostat, for example, cannot, in my view, be qualified as such an independent agency. In its basic act it is explicitly stated that Eurostat forms an integral part of the European Commission’s organization.47 Agencies therefore lie somewhere in between the ‘ordinary’ committees (with hardly any independent status) and the official Institutions of the Communities/Union under Article 7 EC and Article 5 EU. 2. A rather sophisticated (new) organizational structure must be created, in which several organs/persons work together. As we have noticed above, most agencies have three organs within their outside shell – the plenary body, the executive organ, and the experts committee. Where the internal organization is too simplistic, we cannot speak of an ‘agency’. The European Data Protection Supervisor, for example, turns out to be just one independent (natural) person, and therefore cannot be seen as an EU Agency, even though he is independent from the other institutions.48 3. The agency was established on the basis of an act (Regulation) of the EC institutions. This third element emphasizes that a formal link between the EC and the body/entity in question should exist and, at the same time, that this link was created at the secondary level (not in the EC/EU Treaty itself). Only if the EC/EU institutions have set up the agency, acting under one or more legal bases of the EC Treaty, it should be considered as a Community agency. In a number of founding acts it is explicitly stated that the agency concerned is a ‘Community body’, for ex-

45

46 47

48

Case Case T-111/00, British American Tobacco v. Commission [2001] ECR II-2997, at para. 37. See also Case T-188/97 Rothmans v. Commission [1999] ECR II-2463 (paras. 58 and 59). See section 4.1. See Regulation 322/97/EC of the Council on the Community Statistics (OJ 1997 L 52/22): ‘”Community authority” shall mean the Commission department responsible for carrying out the tasks devolving on the Commission as regards the production of Community statistics (Eurostat)’. See the Commission proposal for a Decision of the European Parliament, of the Council and of the Commission on the regulations and general conditions for the performance of the duties of the European Data Protection Supervisor (OJ 2001 C 304 E, p. 178). According to the preamble this Supervisor is the ‘independent supervisory body entrusted with monitoring the application to the Community institutions and bodies of the Community instruments relating to the protection of natural persons as regards the processing of personal data and the free movement of such data’.

135

The Growing Importance of Agencies in the EU

ample the Community Plant Variety Office (CPVO).49 If this requirement has not been met, as in the case of the European Patent Office (see further below), the body in question does not belong to the Community legal order. If the entity was formally set up at secondary level but under the legal bases of the second pillar (CFSP) or the third pillar (PJCC), the body can be qualified as a body of the Union. However, such bodies are usually not considered to be ‘agencies’ (of the Union). Instead, they are called ‘organization’, ‘institute’, ‘centre’, ‘unit’, et cetera. Examples in the sphere of foreign policy are the EU Satellite Centre (Torrejón de Ardoz, Spain)50 and the EU Institute for Security Studies.51 In the field of criminal law/third pillar one can think of Eurojust52 and the European Police College.53 These are all organs/bodies of the European Union, but the term ‘agency’ (of the EU) is carefully avoided.54 The existing bodies, which are officially called ‘agencies’, were thus all set up under EC Treaty provisions, and hence they perform certain tasks in the sphere of Community policies, not in the sphere of the second and third pillar. They should in my view be regarded as Community organs; they can be qualified as Union organs as well, at least if one understands the Communities to be a kind of ‘sub-legal order’ of the broader Union’s legal order. They therefore belong to the Union’s constitutional polity in a broader sense as well.55

49

50

51

52

53

54

55

136

See Article 30 of Council Regulation 2100/94/EC of 27 July 1994 on Community plant variety rights (OJ 1994 L 227/1): the CPVO ‘shall be a body of the Community’. Council Joint Action 2001/555/CFSP on the establishment of a European Union Satellite Centre (OJ 2001 L 200/5). Its ‘mission’ is to provide material resulting from the analysis of satellite imagery and collateral data, including aerial imagery (see Art. 2(1) of this Joint Action). Council Joint Action 2001/554/CFSP on the establishment of a European Union Institute for Security Studies (OJ 2001 L 200/1). The Institute is to conduct academic research, produce research papers, arrange seminars, ‘enrich the transatlantic dialogue’ by organizing activities similar to those of the WEU Transatlantic Forum and maintain a network of exchanges with other research institutes and think-tanks both inside and outside the European Union (Article 2 of the Joint Action). Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ 2002 L 63/1, amended by Decision 2003/659/JHA, OJ L 2003 L 245/44). Eurojust was thus established on the basis of secondary PJC law, even before the entry into force of the Treaty of Nice (which for the first time explicitly mentioned this body, see Artt. 29 and 31 EU). Council Decision 2000/820/JHA of 22 December 2000 establishing a European Police College (CEPOL), OJ 2000 L 336/1. See, e.g. the fourth recital in the preamble to the Eurojust Decision (2002/187/JHA), where it is said that ‘this Eurojust unit is set up by this Decision as a body of the European Union with legal personality’. CEPOL, on the other hand, does not even seem to qualify as a body/organ, since the Collège européen de Police was set up as a network, by bringing together the national training institutes for senior police officers in the Member States (Article 1(2) of the CEPOL decision). The recently established ‘European Defence Agency’ constitutes the exception; in July 2004, it was set up on the basis of Article 14 EU (see OJ 2004 L 245/17). After the entry into force of the Constitution this will, of course, change and we will have to speak of ‘Agencies of the Union’ because the three-pillar structure and the EC will no longer exist.

Ronald van Ooik

If a certain agency/body was not established on the basis of the EC Treaty, and therefore was not created by the Council (and the EP), this entity cannot be qualified as an agency of the European Community (nor: of the European Union). For this reason the European Patent Office (EPO), for example, cannot be qualified as an EC (or EU) agency. It was established under a conventional Treaty, namely the European Patent Convention.56 Membership of this organization is also not identical to that of the EU: the European Patent Organisation, for which the EPO acts as the executive arm, has twenty members.57 For the same reason, the European Bank for Reconstruction and Development (EBRD) cannot be regarded as a body/organ/agency of the Communities (or Union). It was established on the basis of a conventional treaty and the European Community is just one of the forty parties to the founding Treaty.58

2.4.

Language Regime

Most agencies only use a few of the (after enlargement) twenty official EU languages as their daily working language.59 The OHIM, for example, has five working languages: English, French, Spanish, German and Italian.60 In its proposal for establishing a European Railway Agency, the Commission indicates that three internal working languages are sufficient (English, French, German).61 And in an explanation for its proposal regarding the European Air Safety Agency, the Commission wrote that ‘the language regime should allow the Agency to work in an efficient and swift manner. Hence, all acceptable means of compliance and guidance material adopted by the Agency will be available only in English as it is the language commonly, if not exclusively, used for all technical documentation in the aeronautical industry’.62 The Council and the European Parliament, however, ruled that at 56

57 58

59

60 61

62

On the EPO’s official website, this is explicitly confirmed: ‘The EPO is not an EU institution. It is completely self-financing and has a large degree of administrative autonomy’. All the EU countries plus Cyprus, Liechtenstein, Monaco, Switzerland and Turkey. See Council Decision 90/674/EEC of 19 November 1990 on the conclusion of the Agreement establishing the European Bank for Reconstruction and Development (OJ 1990 L 372/1). Its status as a non-EU body also clearly emerges from the preamble to this act of approval: ‘Whereas 40 countries, together with the European Economic Community and the European Investment Bank, have signified their intention of becoming members of a European Bank for Reconstruction and Development which is European in its basic character and broadly international in its membership’. As from May 1, 2004, the official EU languages are: Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish, Swedish, Czech, Estonian, Latvian, Lithuanian, Hungarian, Maltese, Polish, Slovak and Slovenian. Irish is not an official language. See also Article IV-448 Constitution. See Article 115 of Regulation 40/94/EC on the Community trade mark (OJ 1994 L 11, p. 1). See Article 35 of the Commission Proposal for a Regulation of the European Parliament and of the Council establishing a European Railway Agency (OJ 2002 C 126E, p. 323). In the final version (Article 35 of Regulation 881/2004) it is however merely stated that ‘the Administrative Board shall decide on the linguistic arrangements for the Agency’. See the Explanatory Memorandum to the Proposal for a Regulation of the European Parliament and of the Council on establishing common rules in the field of civil aviation and creatÆ

137

The Growing Importance of Agencies in the EU

least the most important EASA documents (annual safety review; opinions addressed to the Commission; annual general report; programme of work) should be available in all the official languages.63 It goes without saying that these language regimes are controversial, to say the least, especially when the Agency has the power to take individual decisions vis-àvis private parties (the regulatory agencies).64 And so it occurred that a brave Dutch national, Ms Kik, forcefully contested the language regime of the OHIM. Initially the Court of First Instance could circumvent the thorny issue by declaring her action for annulment to be inadmissible: the rules regarding working languages were laid down in the Trade Mark Regulation.65 Later, however, she managed to obtain an answer on the substance of the matter, using the plea of illegality as the procedural tool: does the OHIM’s language regime breach ‘the principle of Community law of non-discrimination between the official languages of the European Communities’?66 In the CFI’s view, such a fundamental principle does not exist at all, so that it also cannot be breached. The idea that all EC languages are equal cannot be found in the Treaty itself; the relevant Treaty basis (Article 290 EC) is completely neutral in this regard: ‘The rules governing the languages of the institutions of the Community shall […] be determined by the Council, acting unanimously’. The nondiscrimination principle is only to be found in Regulation No. 1, but the CFI underlined that this is merely an act of secondary law: ‘To claim that Regulation No. 1 sets out a specific Community law principle of equality between languages, which may not be derogated from even by a subsequent regulation of the Council, is tantamount to disregarding its character as secondary law’. Moreover, Article 290 EC merely relates to the language regimes of ‘the institutions’ of the Community, not to that of the other organs/bodies. The rules governing languages laid down by Regulation No. 1 therefore cannot be deemed to amount to a general principle of Community law.67 On appeal, the ECJ confirmed this finding of the Court of First Instance. The Treaty contains several references to the use of languages in the European Union. Nonetheless, according to the ECJ, those references cannot be regarded as evidencing a general principle of Community law that confers a right on every citizen to

63 64

65

66

67

138

ing a European Aviation Safety Agency (OJ 2001 C 154 E/1). In the final version see also Article 23 of this draft Regulation. Article 23 of Regulation 1592/2002/EC (OJ 2002 L 240/1). On the language regime of agencies, see also E. Vos, ‘Reforming the European Commission: What Role to Play for EU Agencies?’, Common Market Law Review, 2000, p. 1113 and p. 11281130 and the Commission’s answer to a MEP question in OJ 1999 C 182/39. Case T-107/94, Kik v. Council and Commission [1995] ECR II-1717 (‘Kik I’). Judgment confirmed by the ECJ in Case C-270/95 P [1996] ECR I-1987. Case T-120/99, Kik v. OHIM [2001] ECR II-2235 (‘Kik II’). This case illustrates the great practical importance of the plea of illegality (Article 241 EC) for the judicial protection of private individuals. Cf. D. Sinaniotis, ‘The Plea of Illegality in EC Law’, European Public Law, 2001, p. 103-125. Kik II, at paras. 57 and 58.

Ronald van Ooik

have a version of anything that might affect his own interests drawn up in his language in all circumstances.68

3.

Functions and Tasks of European Agencies

The purpose of this section is to analyse the tasks, purposes and activities of the many EU agencies, in order to be able to divide them into different categories. In doing so, we can get an impression of what these relatively unknown bodies, located in far-away places like Thessalonica, Alicante or Angers, are actually doing with the European taxpayers’ money. Having regard to the primary objectives and tasks, mentioned in the constituent acts, it appears that, grosso modo, they can be divided, in my view, into three different groups. First, the agencies whose main or exclusive task is to collect and produce technical information in a certain field of human/political activity. These will be called the information-collecting agencies (section 3.1). Secondly, the agencies whose primary task is to apply rules of general application to specific cases in certain fields of EC policy, including the application of EC law to private individuals in a legally binding manner. These are the regulatory agencies (section 3.2). And, thirdly, the agencies that are responsible for carrying out specific EU programmes, thereby assisting the European Commission in an operational manner. They will be called the operational or executive agencies (section 3.3). It goes without saying that the dividing lines are not very sharp and that different classifications may be made.69

3.1.

Information-Collecting Agencies

Up until now, the primary task of the majority of the independent agencies consists of gathering and processing information with respect to the subject-matter for which the agency was created. The main ‘output’ of this type of agency consists of reports, statistical data, et cetera, with mainly technical information. Essentially, the biologists, the veterinarians, and the food safety specialists are in charge. Ancillary activities may include things like organizing conferences and offering training courses. The Community institutions and/or the Member States can use the technical information thus produced as a reliable, objective résumé of the (technical) facts. This is indispensable for subsequent policy-making in many areas, in particular in technical fields such as food safety, environmental protection and public health policy. The function of providing objective and reliable technical information as a basis 68 69

Case C-361/01P, Kik v. OHIM, judgment of 9 September 2003 (especially paras. 81-87). See, e.g., the report by M. Everson, G. Majone, L. Metcalfe and A. Schoutatanag, The Role of Specialised Agencies in Decentralising EU Governance, 2001. They make a distinction between Regulatory Agencies, Independent Information Collection Agencies, Adjudicational Agencies, and Agencies charged with the pursuit of distinct ‘Constitutional-Type’ Normative Goals. See also J. Shaw, Law of the European Union, 3rd ed., Hampshire, Palgrave, 2000, p. 147148.

139

The Growing Importance of Agencies in the EU

for (subsequent) policy making is clearly expressed in, for example, the regulation on the Lisbon Drug Centre. Its prime objective is to provide the Community institutions and its Member States with objective, reliable and comparable information at the European level concerning drugs and drug addiction and their consequences. The statistical, documentary and technical information processed or produced is intended to help provide the Community and the Member States with an overall view of the drug and drug addiction situation when they take measures or decide on action. It is emphasized that the Drug Centre may not take any measure, ‘which in any way goes beyond the sphere of information and the processing thereof’.70 The task of the Monitoring Centre on Racism (Vienna) is similar, namely to provide the Community and its Member States with objective, reliable and comparable data at the European level on the phenomena of racism, xenophobia and anti-Semitism in order to help them when they take measures or formulate courses of action within their respective spheres of competence.71 Adding to these the other agencies with similar information-gathering tasks – but without more far-reaching powers – I come to the following list of InformationCollecting Agencies: -

European Monitoring Centre for Drugs and Drug Addiction (Lisbon); European Monitoring Centre on Racism and Xenophobia (Vienna); European Centre for Development of Vocational Training, or CEDEFOP (Thessalonica);72 European Foundation for the Improvement of Living and Working Conditions (Dublin);73 European Agency for Health and Safety at Work (Bilbao);74 European Environment Agency (Copenhagen);75

70

71

72

73

74

75

140

See Article 1 of Council Regulation 302/93/EEC of 8 February 1993 on the establishment of a European Monitoring Centre for Drugs and Drug Addiction (OJ 1993 L 36/1). See Article 2(1) of Regulation 1035/97/EC of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia (OJ 1997 L 151/1). For the determination of its seat (Vienna), see the Decision of the representatives of the governments of the Member States of 2 June 1997 determining the seat of the European Monitoring Centre on Racism and Xenophobia (OJ 1997 C 194/4). Regulation 337/75/EEC of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training (OJ 1975 L 39/1, amended several times). The abbreviation CEDEFOP stands for Centre Européen pour le Développement de la Formation Professionnelle. Due to the Edinburgh Decision, this Agency moved its seat from Berlin to Thessalonica (see Regulation 1131/94/EC, OJ 1994 L 127/1). Regulation 1365/75/EEC of the Council of 26 May 1975 on the creation of a European Foundation for the improvement of living and working conditions (OJ 1975 L 139/1, amended by Regulation 1947/93, OJ 1993 L 181/26). Council Regulation 2062/94/EC of 18 July 1994 establishing a European Agency for Safety and Health at Work (OJ 1994 L 216/1, amended by Council Regulation 1643/95/EC of 29 June 1995, OJ L 156/1). Council Regulation 1210/90/EEC of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network (OJ 1990 L 120/1, amended by Council Regulation 933/1999/EC, OJ 1999 L 117/1).

Ronald van Ooik

-

European Food Safety Authority (Parma);76 European Maritime Safety Agency (Lisbon);77 European Network and Information Security Agency (Greece);78 European Centre for Disease Prevention and Control (Stockholm);79 European Railway Agency (Lille-Valenciennes, France).80

At first glance it may seem controversial to mention the Food Authority among the ‘traditional’ information-gathering agencies, given its important and politically sensitive task of making sure that our food is safe. However, if one categorizes on the basis of the tasks and responsibilities, mentioned in the constituent document, then it cannot be said that the EFSA’s tasks go far beyond the traditional gathering of information: ‘The Authority shall provide scientific advice and scientific and technical support for the Community's legislation and policies in all fields which have a direct or indirect impact on food and feed safety. It shall provide independent information on all matters within these fields and communicate on risks’.81 Another recently established agency, the European Maritime Safety Agency (EMSA), should, in my view, be mentioned here as well. Its main objective is to ensure a high, uniform and effective level of maritime safety and the prevention of pollution by ships within the Community; EMSA shall provide the Member States and the Commission with the technical and scientific assistance needed and with a high level of expertise, in order to help them to apply Community legislation properly in the field of maritime safety, to monitor its implementation and to evaluate the effectiveness of the measures in place. In order to achieve these objectives, EMSA has however not been given powers of decision making which clearly go beyond information-gathering, processing data, organizing training activities, et cetera82 The outcome (reports, opinions, conferences) may, and sometimes will, serve as an important and influential basis for policy-making by the EU institutions, in particular by the European Commission. The more technical and complicated the matter becomes (standards for emission of carbon dioxide, a causal link between 76

77

78

79

80

81 82

Regulation 178/2002/EC of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1, amended by Regulation 1642/2003, OJ 2003 L 245/4). Regulation 1406/2002/EC of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ 2002 L 208/1; amended by Regulation 1644/2003, OJ 2003 L 245, p. 10). Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ 2004 L 77/1). Regulation (EC) No 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for disease prevention and control (OJ 2004 L 142/1). Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (OJ 2004 L 164/1). Article 22(2) of the EFSA Regulation. See in particular Articles 1 and 2 of Regulation 1406/2002/EC. According to Article 3 of this Regulation, EMSA may carry out ‘visits’ (not: inspections) to the Member States, which does not alter my classification.

141

The Growing Importance of Agencies in the EU

BSE and Creuzfeldt-Jacobs decease?), the less politicians and lawyers will dare to contest the Agency’s opinion. One could therefore speak of a ‘sourcing out’ of one of the basic tasks on any public administration, namely the gathering of sound, and scientifically reliable information as an indispensable precondition for proper administration and ‘good governance’. The annual reports produced by the Lisbon Drug Centre, for example, serve as a useful informational guide on the drug issue, and reference to them is sometimes made in Community and Member States’ acts and policies.83 And the EFSA Regulation expressly stipulates that the Authority’s opinions and information have to serve as the scientific basis for the drafting and adoption of Community measures in the field of foodstuffs. The tasks of the Authority include providing the Community institutions and the Member States with the best possible scientific opinions in all cases provided for by Community legislation and on any question within its mission.84 In conclusion, depending on the circumstances, and in particular on the quality of their work, Agencies of type I may de facto have a strong influence on the Institutions and/or the Member States, despite their limited ‘official ’ competences.

3.2.

Regulatory Agencies: Application of Community Rules in Specific Cases

More interesting, at least from this legal point of view, are the agencies which have been given more intense powers of decision making. They do more than just collecting and spreading (technical) information. If an agency has been given the power to adopt certain legally binding decisions, it is often referred to as a regulatory agency.85 The use of this term is not problematic, as long as it is realized that the decision making powers of this type of agency are limited to applying general rules to individual cases, without, moreover, possessing really discretionary powers. Being a ‘regulatory’ agency therefore does not automatically mean to have the power to adopt (legally binding) rules of general application or to have the power to enforce Community rules within its area of activity. In its White Paper on European Governance, the Commission confirms this by stating that regulatory agencies ‘should be granted the power to take individual decisions in application of regulatory measures’ In its view, at present three such regulatory agencies exist at the EU level. The Office for Harmonisation in the Internal Market (OHIM) and the Community Plant Variety Office (CPVO) are regulatory agencies because they take individual decisions on the granting of European trademarks and plant variety rights. The European Agency for the Evaluation of Medicinal Products (EMEA) also belongs to the category of regulatory agencies because it

83

84 85

142

For these ‘Annual Reports on the state of the drugs problem in the European Union’, see the Centre’s website: . See Article 22(5) and 22(6) of the EFSA Regulation. For example in the Commission’s own White Paper on European Governance, see supra, section 1.

Ronald van Ooik

undertakes a technical assessment of applications for the approval of new medicines prior to a Commission decision.86 The OHIM certainly belongs to the category of regulatory agencies, given its power to adopt legally binding acts vis-à-vis private companies for the implementation of the regime established by the Trade Mark Regulation.87 The CPVO is no problem, since ‘if the Office is of the opinion that the findings of the examination are sufficient to decide on the application and there are no impediments pursuant to Articles 59 and 61, it shall grant the Community plant variety right. The decision shall include an official description of the variety’.88 The European Agency for the Evaluation of Medicinal Products (EMEA, with its seat in London) raises some more doubts. This agency has important tasks regarding applications for the registration of medical products, with a view to releasing them into the entire Union/Community, but this agency does not have the power to take decisions regarding the authorization of medical products. This power rests with the European Commission.89 Despite these doubts, the following agencies could, in my view, be regarded as belonging to the second category of regulatory agencies: -

86 87

88

89

90

91

92

93

Office for Harmonisation in the Internal Market, Trade Marks and Designs (Alicante);90 Community Plant Variety Office (Angers, France);91 European Agency for the Evaluation of Medicinal Products (London);92 European Aviation Safety Agency (Cologne).93

White Paper on European Governance, p. 21. See Regulation 40/94/EC of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). See Article 62 of Council Regulation 2100/94/EC of 27 July 1994 on Community plant variety rights (OJ 1994 L 227/1). On this specific agency, see T. Millet, ‘The Community system of plant variety rights’, European Law Review, 1999, p. 231. See, in particular, Articles 4 and 51 of Council Regulation 2309/93/EEC of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214/ 1). From these provisions it follows that in order to obtain the authorization for release, the company responsible for placing a medicinal product on the market must submit an application to the EMEA. It is then for the Commission to issue and supervise marketing authorizations for medicinal products for human and veterinary use. Regulation 40/94/EC of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). Council Regulation 2100/94/EC of 27 July 1994 on Community plant variety rights (OJ 1994 L 227/1). Council Regulation 2309/93/EEC of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214/1). Regulation 1592/2002/EC of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1).

143

The Growing Importance of Agencies in the EU

The EASA should be mentioned here because its tasks clearly go beyond the collection of technical information.94 The Agency may take binding individual decisions by granting type certificates, and it may conduct inspections and investigations. In order to exercise its core function, namely the granting of type approval for products and appliances, the agency is authorized to issue, modify, suspend or revoke type certificates.95

3.3.

Operational or Executive Agencies

This type of agency is created, essentially, to assist the European Commission in implementing specific EU programmes and policies. Operational/executive agencies do so by carrying out political decisions in an operative manner. The agency ‘stands in the mud’, so to speak, as its servants go out on to the streets. Examples of operational activities are the organization of training courses for officials in the Central and Eastern European Countries (by the European Training Foundation, ETF), the carrying out (on the spot) of the EU reconstruction programme for Kosovo (by the European Agency for Reconstruction, EAR), and also, in my view, providing translation services for a large number of EU institutions and organs/bodies (Translation Centre). The list of operational/executive agencies is as follows: -

European Training Foundation (Turin);96 European Agency for Reconstruction (Thessalonica);97 Translation Centre for Bodies of the European Union.98

It must be added that at the end of 2002 the Council adopted, on the basis of Article 308 EC, a Regulation on executive agencies that are responsible for managing one or more Community programmes.99 This Regulation contains rules on the internal structure, supervision, relation to the Commission, et cetera for all (future) agencies responsible for managing Community programmes. It is therefore, remarkably enough, the Commission alone which may decide, at a tertiary level, to set up these kinds of executive agencies, and it can also determine the lifetime of the executive agency. A restriction, however, is that the Commission may not entrust the execu94

95 96

97

98

99

144

As opposed to the tasks of the European Maritime Safety Agency, which was classified as a Category I Agency, see supra, section 3.1. See Articles 12, 13, 15, 45 and 46 of the EASA Regulation. Council Regulation 1360/90/EEC of 7 May 1990 establishing a European Training Foundation (OJ 1990, L 131/1), amended by Regulation 2063/94/EC (OJ 1994 L 216/9) and Regulation 1572/98/EC (OJ 1998 L 206/1). Council Regulation 2667/2000/EC of 5 December 2000 on the European Agency for Reconstruction (OJ 2000 L 306/7). Council Regulation 2965/94/EC of 28 November 1994 setting up a Translation Centre for bodies of the European Union (OJ 1994 L 314/1). Council Regulation 58/2003/EC of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11/1).

Ronald van Ooik

tive agency with tasks ‘requiring discretionary powers in translating political choices into action’.100 Recent examples of these types of agencies are the ‘Intelligent Energy Executive Agency’ and the ‘Education and Culture Executive Agency’.

4.

Supervising the Acts and Measures of the Agencies

In the Treaty texts on judicial protection/supervision not one of the European agencies is explicitly mentioned. This does not however imply that their acts and measures are immune from any ‘external’ control; in fact both the Commission (section 4.1) and the Court of Justice (section 4.2) perform important supervisory tasks. The power to do so is created at secondary level: in almost all measures establishing agencies certain heads of jurisdiction have been conferred upon the Courts, in addition to the – more politically-orientated – powers conferred on the European Commission.

4.1.

Non-Judicial Supervision

Most founding acts expressly stipulate that the agency concerned will be completely independent from the makers of law and politics. The Agency’s output may and should not be influenced by political considerations. It may be queried, however, whether such bold statements are really correct, since very often the European Commission has been given the power to review the legality of an Agency’s act and decisions, without indicating on what grounds, for what reasons, the Commission can annul that Agency’s act. The Regulation on the European Centre for Development of Vocational Training (CEDEFOP), for example, stipulates that Member States, members of the management board of this centre and third parties ‘directly and personally involved’ may refer to the Commission any act of the centre for the Commission to examine the legality of that act.101 A similar power of review has been given to the Commission in relation to acts of the European Agency for Cooperation, an auxiliary body operating in the field of development cooperation.102 The reasons for the Commission to annul these acts are not mentioned at all, and so it seems that the Commission enjoys a very wide discretion when deciding whether or not to annul an Agency’s act. The Regulation on executive agencies which are responsible for managing Community programmes, already mentioned earlier, contains a set of rather detailed rules on supervision by the Commission, which are applicable to all (future) executive agencies. Any act of an executive agency which injures a third party may be referred to the Commission by any person directly or individually concerned or 100 101

102

Article 6 of Regulation 58/2003/EC. See also section 5 on the Meroni principle. See Article 18 of Regulation 337/75/EEC of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training (OJ L 39/1, amended several times). See Article 19 of Council Regulation 3245/81/EEC of 26 October 1981 setting up a European Agency for Cooperation (OJ 1981 L328/1).

145

The Growing Importance of Agencies in the EU

by a Member State for a review of its legality. Administrative proceedings shall be referred to the Commission within one month of the day on which the interested party or Member State concerned learnt of the act challenged. On its own initiative the Commission may review any act of an executive agency. It must decide within two months of the day on which that review was completed, after having heard the arguments adduced by the agency. The Commission may also suspend the implementation of the act at issue or prescribe interim measures. In its final decision the Commission may uphold the executive agency’s act or decide that the agency must modify that act either in whole or in part.103 Thus, in addition to judicial review (to be discussed below) the European Commission may exercise a form of administrative supervision in relation to all the acts and decisions of the various European agencies. The existence of this possibility of non-judicial review, in addition to judicial review, makes it difficult to assess whether the Commission can be held responsible for damage to individuals as a result of acts and actions of an agency. The reason would be that the Commission may not have exercised its power to ‘monitor’ the agency properly. But, in my view, only agencies themselves can be held responsible in such a case of inaction on the part of the Commission. They have been set up, not by the Commission, but by the Council (and the EP).104 And, moreover, private individuals negatively affected by Agencies’ actions often have the possibility to bring an action for damages at the CFI against the Agency itself.

4.2.

Judicial Supervision by the European Court of Justice

The precise powers/jurisdiction of the Court with regard to legal actions by, or against, agencies depends on the specific rules laid down in the various constituent acts; as was pointed out above, the text of the EC/EU Treaty itself does not mention these possibilities at all. The acts establishing agencies must therefore be read in a ‘horizontal’ manner to be able to draw general conclusions as to the Court’s jurisdiction in relation to EU agencies.105 Very often the ECJ/CFI has been given the power to decide on the contractual liability of the agency in question. The Court has jurisdiction to render a judgment pursuant to any arbitration clause contained in contracts concluded by the agency and third parties. The law applicable to the contract thus governs contractual liability. If the agency does not pay for the pencils it has ordered, the pencil-selling company may sue it before the CFI.106 103 104 105

106

146

See Article 22 of Regulation 58/2003/EC. See supra, section 2.1. One may, by the way, question whether it is legally acceptable to increase the Court’s jurisdiction through secondary measures, especially where at primary level (the EC/EU Treaty) no relevant indications can be found. Cf. E. Vos, ‘Agencies and the European Union’, in T. Zwart and L. Verhey (eds.), Agencies in European and Comparative Law, Antwerpen, Intersentia, 2003, p. 140-141. See, e.g., Article 16 of Regulation 302/93/EEC (on the Lisbon Drug Centre) and Article 18(1) of Regulation 2965/94 (EU Translation Centre).

Ronald van Ooik

More importantly, most founding acts contain rules on the non-contractual liability of the agency in question. The wording of such provisions is very similar to the wording of Articles 235/288 of the EC Treaty, dealing with the non-contractual liability of the Community as a whole (represented by the European Commission and/or the Council of the EU).107 In the Regulation on the European Plant Variety Office, for example, it is said that in the case of non-contractual liability, this agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its servants in the performance of their duties. The Court of First Instance and the Court of Justice shall have jurisdiction in these disputes relating to compensation for damages.108 Where the agency is equipped with more important tasks and powers, in particular the power to adopt decisions which can bind private individuals, we often encounter the possibility to bring an action for annulment before the CFI against the Agency’s (binding) decisions. The rules on such annulment actions often very much resemble those of the action for the annulment of acts of the main EC institutions, laid down in Article 230 of the EC Treaty. An important example for business circles is the provision in the Regulation on the Community Trade Mark (Article 63) which gives private individuals – in practice mostly large American and European companies – the right to lodge an action for annulment against acts of the Board of Appeal of the OHIM at the Court of First Instance. The action for annulment may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of the Regulation or of any rule of law relating to their application or misuse of power. In practice, very often the action is brought on the ground that the trademark is not ‘devoid of any distinctive character’ (Article 7 of the Regulation), whereas the OHIM previously ruled that it is.109 The action must be brought before the CFI within two months, and the OHIM shall be required to take the necessary measures to comply with the judgment of the Court. Thus, it is clear that the procedural rules governing this specific judicial action are almost identical to those of the ‘ordinary’ action for the annulment of Article 230 EC.

107

108

109

See on this much better known regime, e.g. F. Capelli and A. Nehls, ‘Die außervertragliche Haftung der Europäischen Gemeinschaft und Rechtsbehelfe zur Erlangung von Schadensersatz gemäß Art 215 EGV – Wertung, Kritik und Reformvorschlag’, Europarecht, 1997, p. 132; T. Heukels and A. McDonnell (eds.), The Action for Damages in Community Law, The Hague/ Boston, Kluwer Law International, 1997, 451 p.; S. Detterbeck, ‘Haftung der Europäischen Gemeinschaft und gemeinschaftsrechtlicher Haftungsanspruch’, Archiv des Öffentlichen Rechts, 2000, p. 202. See Article 33(3) and (4) of Regulation 2100/94/EC on Community plant variety rights (OJ 1994 L 227/1). See, e.g., Case T-163/98, The Procter & Gamble Company v. OHIM [1999] ECR II-2383 (‘Baby Dry’). The ECJ annulled this CFI judgment as in its view the term ‘Baby Dry’ was not devoid of any distinctive character. See Case C-383/99 P, Procter & Gamble Company [2001] ECR I6251. See also the New Born Baby Case, T-140/00, Zapf Creation AG v. OHIM, [2001] ECR II2927 and Case T-122/99, The Procter & Gamble Company v. OHIM [2000] ECR II-265 (regarding a figurative 3D-shaped piece of soap).

147

The Growing Importance of Agencies in the EU

Similar rules on legality review can be found in the Regulation on the European Aviation Safety Agency (EASA). This agency has been given far-reaching powers of decision making in the field of air safety, albeit of a very technical nature.110 Individuals who are negatively affected by measures of the EASA have the right to appeal, at first instance, to a Board of Appeal within the EASA.111 Subsequently, an action for annulment is available against the negative decision of the Board of Appeal on the terms and conditions laid down in Article 230 EC. Member States and the Community institutions may also lodge a direct appeal before the Court of Justice against decisions of the Agency.112 Where the Agency’s functions are more technical in nature, a right to bring actions for annulment often cannot be found in the founding act. The regulation on the EU Translation Centre, for example, merely empowers the Court to rule on the contractual and non-contractual liability of this Centre but it does not contain rules on the right to bring annulment actions against the Centre’s decisions.113 In the EFSA Regulation as well only the ‘ordinary’ legal remedies can be found (contractual liability, non-contractual labiality, personal liability of servants),114 which confirms that the Food Authority should be classified as a category I, a traditional, entity. The Regulation on the Drugs Monitoring Centre, however, stipulates that the Court of Justice shall have jurisdiction in actions brought against the Centre under the conditions provided for in Article 230 EC, even though this Agency must be qualified as a traditional, information-collecting agency.115 Finally, the Community courts are competent to rule on disputes between an Agency and its staff. Most CFI cases (and those of the ECJ) deal with these dissatisfied civil servants who have missed promotion or who have been dismissed.116 From the foregoing it follows that the nature and scope of supervision by the Court in relation to acts of Agencies is dealt with in a rather ad hoc fashion. One has to read each constituent act separately to know exactly what the ECJ (and the Commission) can and cannot do subsequently. A completely logical system cannot be discerned; only to a certain extent the Court’s powers correspond to the nature and intensity of the powers conferred upon the various agencies. In this respect the US system of judicial review against agencies is more developed:

110 111

112 113

114 115

116

148

Cf. section 3.2. See Article 35 of the Regulation which, however, restricts the right of appeal to the Board of Appeal to EASA decisions regarding airworthiness and environmental certification (art. 15), investigation of undertakings (art. 46) and levying fees and charges (art. 53). See Articles 41 and 42 of Regulation 1592/2002. See Article 18 of Council Regulation 2965/94/EC of 28 November 1994 setting up a Translation Centre for bodies of the European Union (OJ L 314/1). See Article 47 of Regulation 178/2002/EC (OJ 2002 L 31/1). See Article 17 of Regulation 302/93. See also section 3.1 where the primary objective of this body was cited. See, e.g., Articles 43 and 44 Regulation 1859/76/EEC, OJ 1976 L 214 and Case T-39/91, Herrmann v. CEDEFOP [1992] ECR II-233 as well as Case C-184/01 P. Hirschveldt v. European Environment Agency [2002] ECR I-0000.

Ronald van Ooik

‘A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under colour of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party’.117

The Constitution however contains a more structured, horizontal approach to the issue of judicial review of EU Agencies’ acts. It quite boldly adds the possibility of bringing an action for annulment against ‘acts of (all) bodies and agencies of the Union intended to produce legal effects vis-à-vis third parties’.118 This is still not a compete ‘horizontal’ solution since acts setting up bodies and agencies may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against any acts of these bodies or agencies intended to produce legal effects. Agencies have, however, not been given the power to bring an action for annulment in order to protect their own prerogatives.119

5.

EU Agencies and the Meroni Principle of Institutional Balance

The fact of EU Agencies not being mentioned in the text of the EC Treaties not only raises the legal basis/competence issue,120 but also the important question to what extent decision making power may be transferred (or: delegated) to these independent bodies.

5.1.

The Court’s Task of Safeguarding the EC Institutional Equilibrium

Regarding the setting up of independent agencies and, in particular, the exercise of genuine decision making powers by them, the Meroni case of the Court of Justice may (still) cause some serious legal problems.121 In this case, from 1958, the Court ruled that it is not possible to delegate discretionary powers, implying a wide margin of discretion, to bodies other than those which the Treaty has established. Otherwise the ‘balance of powers which is characteristic of the institutional structure of the Community’ would be negatively affected. In contrast, the delegation of ‘clearly defined executive powers’ to such bodies/agencies is acceptable, since a delegation of this kind would not render the guarantee of institutional balance ineffective.122

117 118 119

120 121 122

See § 702 of the US Administrative Procedures Act. Article III-365 Constitution. Perhaps the Court will some day opt for a Les Verts/Chernobyl type of solution. See Case 294/83, Les Verts v. European Parliament [1986] ECR 1339 and Case C-70/88 European Parliament v. Council [1002] ECR I-4566. See supra, section 2.1. Case 9/56 Meroni v. High Authority [1957-1958] ECR 133. Case 9/56, at p. 151-152. See also K. Lenaerts, ‘Regulating the Regulatory Process: Delegation of Powers in the European Community’, European Law Review, 1993, p. 23-49.

149

The Growing Importance of Agencies in the EU

Although by now this case from 1958 seems rather prehistoric and, moreover, the institutional principle laid down in Meroni has never been reiterated by the Court in its more recent case law (at least not explicitly), it nevertheless seems that the underlying rationale of Meroni is still relevant today. And that is the idea that the balance of powers between the EC/EU institutions, as it emerges from the text of the Treaties, may not be altered by the institutions (the Commission, EP, Council) as a result of their decision to delegate genuine powers of decision making to independent bodies, which the Treaties themselves have never heard of. Seen from this vantage point, the Meroni case still constitutes a serious obstacle to any ‘genuine agencification’ on the basis of secondary Community law. In EU decision making circles, as well as among political and social scientists, this case is indeed often cited as placing serious restraints on the possibility of delegating too much power to independent agencies.123 In its White Paper on European Governance, the Commission argues that the Treaties allow some responsibilities to be granted directly to agencies. This should be done in a way that respects the balance of powers between the institutions and does not impinge on their respective roles and powers. This implies, in the Commission’s view, that the following conditions have been fulfilled: -

-

-

-

agencies can be granted the power to take individual decisions in specific areas but cannot adopt general regulatory measures. In particular, they can be granted decision making power in areas where a single public interest predominates and the tasks to be carried out require particular technical expertise (for example, air safety); agencies cannot be given responsibilities for which the Treaty has conferred a direct power of decision on the Commission (for example, in the area of competition policy); agencies cannot be granted decision making powers in areas in which they would have to arbitrate between conflicting public interests, exercise political discretion or carry out complex economic assessments; Agencies must be subject to an effective system of supervision and control.124

In this way the Commission gives its own, modern interpretation to the Meroni principle – without however mentioning the judgement of the ECJ in this case explicitly.

5.2.

Linking Meroni to Present-Day ‘Agencification’ Processes

How can one escape from Meroni if it is considered necessary to delegate certain executive powers from the Commission to an independent agency? It seems that there 123

124

150

See, e.g., M. Everson, ‘Independent Agencies: Hierarchy Beaters?’ European Law Review, 1995, p. 180-204; G. Majone, ‘The Agency model: the growth of regulation and regulatory institutions in the European Union’, Eipascope, 1997, p. 9-14. For the Commission’s view, set out in its 2001 White Paper on European Governance, see the end of section 5.2. White Paper on European Governance, OJ 2001 C 287/1, at p. 20.

Ronald van Ooik

are several possibilities to ‘source out’ European executive tasks without violating the Court’s Meroni principle of institutional balance. These options would therefore be acceptable from the legal point of view.125 First, the creation of agencies with a strict mandate does seem possible under the Court’s Meroni criteria. As was mentioned above, the Court made a clear distinction between the (unacceptable) delegation of discretionary powers, implying a wide margin of discretion, on the one hand, and the (acceptable) delegation of ‘clearly defined executive powers’ on the other. On the basis of this distinction, the powers of the OHIM could, presumably, be ‘explained’. This Agency undoubtedly exercises genuine executive functions and powers, vis-à-vis private companies.126 But it could be argued that the founding act (the Trade Mark Regulation) very precisely and strictly lays down the OHIM’s powers and the conditions for exercising these powers. In the Court’s wording in the Meroni case: the powers of the OHIM are ‘clearly defined’ in nature. In the preamble to the Trade Mark Regulation, the trained eye will discover a Meroni struggle as well: ‘It is essential, while retaining the Community’s existing institutional structure and balance of powers, to establish an Office for Harmonization in the Internal Market (trade marks and designs) which is independent in relation to technical matters and has legal, administrative and financial autonomy’.127 A second way to avoid any possible ‘Meroni objections’ of the Court is to establish bodies without any real power of decision making but whose primary purpose is essentially the gathering and processing of (technical) information. The powers of an agency such as the Monitoring Centre on Racism (in Vienna) or the Monitoring Centre on Drugs (Lisbon) do not therefore seem to fall under the type of powers which the Court had in mind in its Meroni judgment.128 Thirdly, it clearly appears from this case that the Court was concerned with safeguarding the institutional balance as it emerged from the E(E)C Treaty itself. The EU institutions (the Commission, Council, EP) should not disturb the balance introduced by the Treaty legislator by giving up powers through secondary measures. The Treaty legislator itself, however, may change the institutional balance if it so decides, by giving an explicit and clear Treaty basis to a certain body. The institutional balance principles of Meroni therefore do not seem relevant to bodies such as Europol or the European Central Bank, since these entities function on the basis of clear and explicit Treaty provisions.129 Their decision making powers have been ‘authorized’ by the Treaty legislator, and therefore the Court of Justice will (probably) not object to a shifting of institutional balance brought about by the ‘highest’ Union power itself. 125

126 127 128 129

See also D.M. Curtin and R.H. van Ooik, Revamping the European Union’s Enforcement Systems with a View to Eastern Enlargement, WRR Working Documents no. W 110, The Hague, October 2000, in particular p. 57-58 and p. 61-62. See supra, section 3.2. See the 11th consideration in the preamble to Regulation 40/94/EC. On the tasks of these two agencies, see above, section 3.1. For the ECB, see in particular Articles 112-113 EC; regarding Europol, see Articles 29 and 30 EU (and old Art. K.3. EU).

151

The Growing Importance of Agencies in the EU

Finally, an effective system of supervision and control may mitigate objections against a far-reaching delegation of powers to independent agencies. As we have seen, the possibilities of non-judicial supervision (Commission) and judicial supervision (CFI/ECJ) were indeed created in the Regulations establishing agencies.

6.

Final Remarks

To an outsider it seems that European agencies live a quiet life somewhere far away from busy Brussels, in exotic places like Thessalonica, Lisbon, Angers, Turin or Dublin.130 Adjudicated on the basis of formal competences, their role in the Union’s constitutional set-up and functioning is indeed still very modest. The basic rule in the European Communities is that, at the European level, the European Commission exercises executive powers and functions; legislation is in the hands of the Council and the European Parliament; and above, at the summit, stands the European Council which guides us all by proclaiming ‘general political directions and priorities’. In other words, in my view, we should not exaggerate the importance of Agencies in the European Union as it functions today, nor their threat to the institutional balance as laid down in the Treaties. Their most positive contribution to European administration consists of conducting technical/scientific research; their information of high technical quality can provide an important basis for both EU and national policy making, in particular in technical fields like food safety, the drawing up of environmental standards, or where policy decisions need to be based on sound factual information (concerning phenomena like racism, drug addiction, etc.). A more intense delegation of responsibilities and powers to Agencies, it is true, may pose a threat to the Meroni principles of institutional balance and democratic accountability. But, for the time being, I think that it would be better to keep watching them, and to wait and see.

130

152

For the seats of most of the older agencies/bodies, see the so-called Edinburgh Decision: Decision taken by common Agreement between the Representatives of the Governments of the Member States, meeting at Head of State and Government level, on the location of the seats of certain bodies and departments of the European Communities and of Europol (OJ C 323/1). For the seat of nine newer agencies and offices – some of which still have to be established – see the Decision taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union (OJ 2004 L 29, p. 15).

Amaryllis Verhoeven*

DEMOCRATIC LIFE IN THE EUROPEAN UNION, ACCORDING TO ITS CONSTITUTION

1.

Introduction

After half a decade of factual constitutional growth, a European Constitution has now been signed.1 It was prepared in large part by a Convention,2 and it was written – at least, according to its preamble – on behalf of the citizens and states of the European Union. The initial impetus and the assignment to draw up this Constitution were given during the Belgian presidency, on the occasion of the European summit at Laeken on 14 and 15 December 2001.3 At this summit, the European heads of state and government decided that, in the light of the approaching enlargement with over ten countries, the function, rules and role of the European Union needed to be revised once again. In contrast to earlier revision rounds, this time a completely new method was chosen. A ‘European Convention’, made up of the main participants in the debate concerning the future of the Union, was to prepare the renewal of the Union, while the closing document of the Convention would form the starting point for later discussions in an Intergovernmental Conference which would officially instigate the procedure of amending the Treaty. The European Convention was composed of representatives of the Member States,4 the



1

2

3

4

The author has a Ph.D in law from KU Leuven, Institute for European Law, and is a civil servant at the European Commission. The views expressed in this contribution only bind the author, not the institutions to which she belongs. Draft Treaty establishing a Constitution for Europe, adopted by the European Council on 17 and 18 June 2004 at the close of the IGC process and signed in Rome on 29 October 2004. Draft treaty for the establishment of a Constitution for Europe, adopted by the consensus of the European Convention on 13 June and 10 July 2003 and submitted to the Chairman of the European Council in Rome on 18 July 2003. See the Laeken Declaration on the future of Europe as annexed to the Presidency Conclusions, 14-15 December 2001, SN 300/1/01 REV 1. The Laeken Declaration provided that the candidate Member States could take part in the discussions and consultations on the Convention, but could not prevent any consensus that would emerge among the Member States. The Convention itself went one step further and Æ

153

Democratic Life in the European Union, According to its Constitution

national parliaments, the European Parliament and the Commission.5 Finally, the European summit at Laeken presented the European Convention with a list of questions which served as the starting point for the discussions. A first important series of questions revolved around the issue of ‘how to increase the democratic legitimacy and the transparency of the institutions’. Another question concerned a possible simplification or reshuffle of the four Treaties on which the Union is currently based, which could possibly and in time lead to ‘the adoption in the Union of a constitutional text’. It was finally out in the open. The Convention could work on what could in time become a constitutional text. Right from the start, the Convention’s efforts were directed at drawing up a draft Constitution.6 This Constitution was to replace the existing Treaties and, among other things, support and strengthen the democratic legitimacy of Europe. Eighteen months after the Laeken Declaration a draft European Constitution was published.7 ‘Un résultat imparfait mais inespéré’, according to the Convention’s chairman, and according to the Member States it formed ‘a good basis’ for the intergovernmental conference which was to start later in 2003.8 After protracted discussions running over eight months, the IGC took largely on board the Convention’s proposals, thus proving the solidity of the Convention method.9 It is tempting to wonder whether the Constitution, assuming that it will enter into force, will increase the democratic legitimacy of the European Union.10 This question is far too complex to answer within the scope of this contribution. Whether a political system enjoys democratic legitimacy cannot be easily measured, nor do the concepts of democracy and legitimacy have a fixed meaning. Moreover, the

5

6

7 8

9

10

154

invited a representative elected by the candidate Member States to participate in all the discussions of the Convention’s presidium. The Convention method has been tested before in the drafting of a Charter of Fundamental Rights for the European Union (which would now be attached as a second part to the European Constitution). It contrasts with the ordinary intergovernmental procedure for amendment of the Treaty whereby national governments negotiate behind closed doors. Since the ‘Convention’ itself lacks constitutional status, the text of the Constitution must still be adopted by means of the usual intergovernmental procedure for the amendment of the Treaty (i.e. unanimous adoption by the countries, followed by ratification by their national parliaments or by means of a referendum). On the added constitutional value of the Convention method, see, among others, B. de Witte, ‘The closest thing to a constitutional conversation in Europe: the semi-permanent Treaty revision process’, in P. Beaumont, C. Lyons and N. Walker (eds.), Convergence and Divergence in European Public Law, Oxford, Hart Publishing, 2002, p. 39-57. The course of the Convention and the content of the discussions can be followed through a special website, . Cf. supra. See the Presidency Conclusions concerning the European Council meeting in Thessaloniki on 19 and 20 June 2003. Under the new Constitution, the use of a Convention as a method for future revisions of the Constitution will become standard institutional practice. The text of the Constitution must be ratified by all Member States before it can enter into force. Given the fact that ratification is subject, in several Member States, to a referendum process, when and whether the Constitution will enter into force is difficult to predict.

Amaryllis Verhoeven

proof of the pudding will be in the eating: democratic legitimacy cannot be guaranteed by legal texts alone (not even when these are of a great constitutional calibre), but depends on weathered practice at all levels of society.11 The purpose of this contribution is less ambitious and indeed rather different. It is to examine what the new constitutional text has to say about democracy in the European Union. What definition of, or approach to, democracy can be found in the European Union’s (future) founding text? And further, is this approach convincing, i.e., does the Constitution’s approach to democracy form a good basis for ensuring the democratic legitimacy of the European order? Before turning to these questions, the notion of democratic legitimacy and the ubiquitous claim that the European Union is suffering from a ‘democratic deficit’ will briefly be discussed.

2.

Democratic Legitimacy beyond the Nation State: Starting Points

In our current political understanding the question of the legitimacy of the political order is almost invariably interpreted as a question of democratic legitimacy. A political order is legitimate, and the power of its administrators and the force of its legal rules are accepted, if they are democratic. This equation of democracy with legitimacy follows from our self-image. Entirely in keeping with the Greek-Christian tradition, modern man sees itself as a free being, equal to others and concerned with society. Where man sees itself thus, political authority and power are only acceptable if they can be explained as an expression of self-governance, of individual and collective autonomy.12 After Habermas, (democratic) legitimacy can also be described as Anerkennungswürdigkeit, i.e. as the capacity of a political system to claim recognition from its citizens.13 Recognition implies both ‘identification’ and ‘acceptance’ and as a result legitimacy always has both a formal and a social aspect. We speak of formal legitimacy when the decision making process can be formally/procedurally recognized as an expression of self-governance. A political system enjoys substantive legitimacy when it can boast wide social acceptance, i.e. the loyalty of its citizens. However, the problem of legitimacy is often approached from just one single aspect. While lawyers tend to favour the purely formal side of legitimacy, social scientists are too unilaterally focused on social acceptance.14 This reductionist approach runs like a thread through the entire democracy question of the European

11

12 13

14

A. Verhoeven, The European Union in Search of a Democratic and Constitutional Theory, The Hague, Kluwer Law International, 2002, p. 3-14. Ibidem. J. Habermas, ’Legitimationsprobleme im modernen Staat’, in P. Graf Kielmansegg (ed.), Legitimationsprobleme politischer Systeme, Sonderheft der Politischen Vierteljahresschrift, Opladen, Westdeutscher Verlag, 1976, p. 39-61; see also J. Habermas, ’Wie is Legitimität durch Legalität möglich?’, Kritische Justiz, 1987, p. 1 et seq. P. Craig, ‘The nature of the Community; integration, democracy and legitimacy’, in P. Craig and G. de Burca (eds.), The Evolution of European Law, Oxford, Oxford University Press, 1999, p. 5 et seq.

155

Democratic Life in the European Union, According to its Constitution

Union and has contributed greatly to the perpetual confirmation of the so-called democratic deficit.15 From a formal legal perspective, the ratification of the establishing treaties and the treaties of accession by the national parliaments guarantees the democratic character of the European Community and the European Union.16 However, soon after the start of the European integration project, ratification began to be considered as a rather flimsy basis for legitimacy, given the unprecedented wide transfer of competences to the European institutions and, especially, the binding force of European law and its priority over national law.17 Since European rules increasingly interfered with the national legislative process and determined its direction, the conviction grew that the European decision making process should itself follow a democratic model.18 Entirely in keeping with what is traditionally perceived as best guaranteeing democracy, steps were taken to strengthen parliamentary representation at the European level (cf., the introduction of direct elections for and the steady extension of the competences of the European Parliament,19 the introduction of the codecision procedure, where the Council and the Parliament almost act as in a federal two-chamber system, and the establishment of the Committee of the Regions).20 On the other hand, and especially from the perspective of political science, the legitimacy of the European institutions was sought and expressed in substantive terms, in particular where the European Commission was concerned. The functionalist body of thought that took root at the starting phase of European integration mainly legitimized this process from the point of view of the actual, substantive objectives it managed to realize (prosperity, peace); achievements in which the High Authority (and its successor, the Commission) as a group of independent experts played an important role. It was commonly believed that the achieved objectives would in time inspire the necessary feelings of loyalty in the citizens of Europe.21 These things, however, did not lead to the desired results. Despite the proliferation of representative institutions and decision making processes and the undeniable economic prosperity of the united Europe, the European citizen was unable to warm to the integration project. The difficulties surrounding the ratification of the Maastricht Treaty that created the European Union (think of the Danish ‘nej’) for 15 16

17

18

19 20

21

156

A. Verhoeven, supra note 11, p. 57-72. As the Court of Justice emphasized in the early years in, among others, Case 6/60, Humblet, Jur., 1960, 559. The priority of European law over national law follows from the case-law of the Court of Justice, more especially from the judgment in Case 35/76, Simmenthal, Jur., 1976, 1871. Article I- 6 of the Constitution now aims to lay down this rule of priority in a constitutional text. C. Carter and A. Scott, ‘Legitimacy and governance beyond the European nation state: conceptualizing governance in the European Union’, European Law Journal, 1998, p. 429-445; see also J. Weiler, ‘The transformation of Europe’, Yale Law Journal, 1991, p. 2403-2483. Since 1979. Realization of the Maastricht Treaty establishing the European Union, adopted in 1991 and entered into force in 1993. See further W. Devroe and J. Wouters, De Europese Unie, Leuven, Peeters, 1996. W. Wallace and J. Smith, ‘Democracy or technocracy? European integration and the problem of popular consent’, West European Politics, 1995, p. 137 et seq.

Amaryllis Verhoeven

the first time made this crystal clear. Through trial and error the awareness has gradually emerged that the defective legitimacy of the Union is mainly the result of a lack of effective involvement of the citizens in Europe. The establishment of formally ‘representative’ institutions makes no difference when the citizens cannot identify them as effective instruments of public involvement in matters of public concern. This is the essence of the message of, among others, the infamous Maastricht Urteil of the German Federal Constitutional Court of 12 October 1993.22 And technocratic administration alone is unable to inspire loyalty, even when it is economically successful, if it does not offer room for public involvement or address the actual needs of the citizens.23 In short, without demos there can be no democracy. This does not mean that democratic government action presupposes the existence of some organic sense of nationhood. It does mean, however, that the public exercise of authority is only experienced as legitimate when it can be recognized from a theoretical point of view, and subjectively-historically identified, as a valid form of self-rule, of individual and collective self-expression. Legitimacy, therefore, does not depend on merely formal factors, like the creation of representative decision making institutions at the European level, nor on purely substantive factors (attractive results), but lies mostly in the recognizability and identifiability of a political system as inherently and naturally bound up with its citizens. Such democratic recognition and identification depends on a system of three elements, which mutually influence and reinforce each other.24 -

Formal recognition and identification: a political system must be formally recognizable to the citizen as a legitimate form of self-expression. This means that the constitutional foundations on which a system rests must be understandable and clearly recognizable as channels of civil involvement, as an expression of the ‘will of the people’.

-

Participation: recognition and identification also require an active citizenship, the active participation of the citizen in the political debate in general, and decision making in particular, at all levels.

-

Substantive acceptance: the political policy must be able to offer an adequate response to the needs of all citizens, without excluding any group.

In short, paraphrasing the famous words of the American president Lincoln, it can be said that democracy presupposes a government of the people (formal recognition), for the people (substantive recognition) and by the people (participation).

22 23

24

Brunner decision, 2 BvR 2134/92 and 2159/92. For a critical analysis see A. Peijpers, De mythe van het democratisch tekort, The Hague, Instituut Clingendael, 1999. A. Verhoeven, supra note 11, p. 10-11.

157

Democratic Life in the European Union, According to its Constitution

The legitimacy of a democratic order thus depends on more than elements of participation alone. In the concrete elaboration of the rules of the democratic order a number of basic principles will also have to be observed, if democracy is to reinforce itself rather than abolish itself. Democracy and constitutionalism – the recognition that fundamental rules must be respected – consequently go together as the two sides of the same coin.25

3.

What does the European Constitution say about Democracy?

As mentioned, the objective of drafting a European Constitution, a text which is to replace the current amalgam of Treaties, was among other things to provide support for the democratic legitimacy of the Union. One could have expected, then, that the question of what democratic legitimacy means, or should mean, in the context of the European Union, was discussed in some depth by the authors of the Constitution. However, very little is to be found in the preparatory documents of the Convention (which have been published unabridged on a special website)26 on the notion of democratic legitimacy as such. The Convention’s presidency established 11 different working groups which discussed various themes such as subsidiarity, the legal personality of the Union, the role of the national parliaments and economic policy. The demand for more democratic legitimacy did run like a thread through these subjects and meetings, but was never made a theme in its own right in wider circles within the Convention. This is a missed opportunity. The result is that, although scattered proposals have been formulated to ‘increase democracy’, these proposals do not always show a clear underlying vision guaranteeing the cohesion and strength of the matter as a whole. The danger in this is that one good instrument may neutralize, or worse, pervert the other, as may happen when mixing medication to combat a range of symptoms without first and effectively examining the underlying cause. A sign of the lack of agreement concerning the meaning of democracy in the context of the Union is, for instance, the fact that a minority group within the Convention refused to support the draft Constitution, precisely because it did not offer any guarantees for a democratically functioning Union. By contrast, the minority group proposed a ‘Europe of the democracies’, based on the idea that the Member States are the only real locus of democratic action, and thus aiming at strengthening the hold of the Member States and the national parliaments on European decision making.27 While the Convention therefore promoted the draft Constitution for its added value for democracy, a minority rejected it, also based on arguments concerning democracy. In addition, any democracy needs a wide and ongoing debate on what exactly democracy is. Democracy is not a fixed institutional tool that can simply be inserted 25 26 27

158

J. Habermas, Between Facts and Norms, New York, Polity Press, 1997. Supra note 6. See Annex III of the report transmitted by the Presidency of the Convention to the European Council on 18 June 2003 (CONV 851/03).

Amaryllis Verhoeven

into a political system, but is rather given shape through a debate on democracy taking place within the context of that system.28 Such fundamental debate cannot be replaced by a discussion on various kinds of prescriptions of which it is thought or hoped that they will have a ‘democracy-increasing’ effect. Having said this, the Constitution includes much valuable material inviting further debate and research on what democratic legitimacy should mean within the European Union. A good starting point, in this context, is the Constitution’s new Title on ‘democratic life in the Union’.

3.1.

A New Title on ‘the Democratic Life of the Union’

Title VI of the first Part of the Constitution addresses ‘the democratic life of the Union.’ This Title contains provisions on equality (Article I-45 of the Constitution), representative democracy (Article I-46), participatory democracy (Article I-47), social dialogue (Article I-48), the European ombudsman (Article I-49), transparency (Article I-50), protection of personal data (Article I-51) and the status of churches and non-confessional organizations (Article I-52). The fact that a separate Title is explicitly devoted to the Union’s ‘democratic life’, is certainly to be welcomed. But the content of Title VI is not exactly breathtaking. In addition to some very general wording, Title VI mostly contains some residual provisions bearing on democracy issues, that were difficult to include elsewhere in the Treaty. Title VI is some kind of fourre tout, bringing together a number of separate provisions that must be read in conjunction with other provisions of the new Constitution, such as its provisions on citizenship or on Fundamental Rights. Still, a reading of Title VI contains some interesting novelties and, further, teaches us something about how the Constitution understands democracy in the European Union As will be further elaborated below, Title VI portrays a democratic order in the making that starts from a distinctly federal ideal – building a community in diversity – but builds upon it in a way which is uniquely its own.29 Title VI starts with the provision that the Union must respect the equality of its citizens, who must receive equal attention from the Union’s institutions, bodies, offices and agencies. This provision should not be read as a general non-discrimination clause. That the citizens of the Union enjoy a fundamental right to equal treatment already follows from other provisions in the Constitution.30 By contrast, equality of the citizens refers here to the fundamental basis, the very starting point 28

29

30

C. Lefort, Essais sur le politique, Paris, Seuil, 1986, p. 52-53. Lefort describes democracy as ‘un régime fondé sur la légitimité d’un débat sur le légitime et l’illégitime – debat nécessairement sans garant et sans terme’. On the concept of federalism in the context of the European Union, see K. Lenaerts, ‘Federalism: Essential Concepts in Evolution – The Case of the European Union’, Fordham International Law Journal, 1998, p. 746-798. In Part I of the Constitution, see among others Articles 2 and 3 (gender equality), Article 4 (prohibition of discrimination on grounds of nationality); in Part II, dealing with fundamental rights, Articles 20 (equality before the law), 21 (prohibition of discrimination) and 22 (gender equality); in Part III, Articles 1 (gender equality) and 1a (prohibition of discrimination on grounds of sex, race or ethnic origin, religion or belief, disability, age or sexual orientation).

159

Democratic Life in the European Union, According to its Constitution

of European democratic life. Equality is understood here in a political sense, as a right to equal participation and equal concern (i.e., receiving equal attention from policy makers).31 European democracy hereby presents itself as a democracy of and for equal citizens, as opposed to international organizations, which have the sovereign equality of the participating states as their starting point,32 and also as opposed to what is traditionally laid down in 19th-century Constitutions, which allow all state power to emanate from the Nation, as if it were a collective person. This does not mean, however, that only the relationship between the individual citizens – i.e., not welded together as a people – and the Union would be relevant in European democratic life. European citizenship after all harbours a multiple identity; in particular, European citizenship is based on national identity. It is only possible to become a citizen of the Union, when one acquires the citizenship of one of the Member States beforehand, and national identity is a factor which the Union must respect. European citizenship does not replace the national identity, but complements it.33 In addition to the European citizens, the Member States remain prominently present as the building blocks of European democratic life. This emerges, among others,34 from Article I-46, which establishes that the working of the European Union is founded on the principle of representative democracy, whereby citizens are directly represented at Union level in the European Parliament, and Member States are represented in the European Council or the Council of Ministers by their governments, themselves accountable to their national parliaments or citizens. By this provision, the Union at first glance seems to model itself after the organization of federal states, where citizens are both directly and indirectly represented in the federal legislative chambers. And, indeed, the Constitution confirms the legislative function of the Council and the Parliament: for the first time, the rules promulgated by these two institutions are actually called ‘laws’.35 The Commission on its part is more pronouncedly pushed to the fore as a European ‘government’, with clear executive competences. The control of the legislative institutions (Council and Parliament) over the Commission is furthermore strengthened. According to the Constitution, the Member States and the European Parliament are jointly to elect 31

32

33

34

35

160

Political equality is not merely a matter of the right to vote. It is also the right to ‘equal concern’. The principle of equality is thus also a principle of inclusion, and is connected with a rich understanding of citizenship, as can be found in the works of, among others, Dworkin (see inter alia R. Dworkin, Law’s Empire, Cambridge (MA), Harvard University Press, 1986, Chapter 6). See Article 2(1) of the Charter of the United Nations, which provides that the organization is founded on the sovereign equality of the participating states. Article 17 of the current EC Treaty. See A. Verhoeven, supra note 11, p. 159-189. In the Constitution, these provisions are repeated in Article I-10 ff. The new Constitution also explicitly recognizes the particular contribution of national parliaments to the democratic life of the Union, in particular by creating an ‘early warning’ system regarding the monitoring of the principle of subsidiarity (see the protocols on the role of national parliaments in the Union and on the application of the principles of subsidiarity and proportionality, annexed to the Constitution). Article I-33 et seq. of the Constitution; see also infra.

Amaryllis Verhoeven

the President of the Commission, who in turn selects the other members of the Commission based on the national lists (with three candidates each).36 While the Member States retain the upper hand in the appointment procedure, the Parliament plays an ever increasing role as a supervising institution;37 moreover it can force the Commission to resign by means of a motion of censure carried by a two-thirds majority.38 Having said this, one should not, however, expect to find a translation of the federal state model at the European level, complete with a system of division of powers, as it is classically understood. As will be discussed below, both the Council and the Commission will continue to perform characteristic functions which are not a translation of a federal state model, but rather of an international (or diplomatic) model, which has found a new, more democratic fervour in what is known as ‘governance thinking’. The provisions of Title VI of Part I of the Constitution concerning ‘participatory democracy’ also fit in with this new thinking.

3.2.

The Council between Diplomacy, Technocracy and Democracy

As mentioned, the Constitution reaffirms the role of the Council of Ministers as a legislative chamber Under the ‘ordinary legislative procedure’, the Council adopts, together with the Parliament and on an equal footing with the latter, ‘laws’ and ‘frame-work laws’. This terminology will replace the current ‘regulations’ and ‘directives’: directly applicable rules will be called ‘laws’, while rules that are only binding in respect of their intended result, but leave the competence concerning form and means to the national authorities, will be called ‘framework laws’.39 This change in terminology is of a great symbolical importance. The choice of the term ‘laws’ implies that the Union produces more than purely technical measures in the economic field. To recognize that the Union makes ‘laws’, is to imply that the Union has become a fully-fledged political player in addition to the Member States, and that it can set aside the internal, political choices of the Member States in its field of competence. Yet the recognition that rules produced by the Council can be of a legislative calibre also creates a new obligation for the Council: according to Articles I24 and I-50(2) of the Constitution, the Council, when adopting a legislative proposal, has to convene in public.40 The Convention had also proposed to establish a 36

37

38 39 40

See Articles I-26 to I-28 of the Constitution. An exception to this rule is the newly created ‘Minister of Foreign Affairs’, who is appointed by the European Council, but is at the same time Vice-President of the European Commission. It will be recalled that current law offers the European Parliament the right to approve, or reject, the Commission as a whole. The Parliament has recently used these powers to block the instauration of the Barroso Commission. Article III-336 of the Constitution, which, on this point, confirms the law as it stands. Article I-33 of the Constitution. The current Treaties already provide for a limited right of ‘access to documents’ of the Council, but do not include the right to be present at Council meetings (see Article 207(3) EC). The Council’s rules of procedure do provide the possibility to hold certain meetings in public, but only in cases where the Council itself decides to do this (see the Council Decision of 5 June 2000, OJ 2000 L 149/21). See for the traditional positions of the Council concerning transparÆ

161

Democratic Life in the European Union, According to its Constitution

separate Legislative Council. The IGC abandoned this idea, confirming the current practice of specialized Council meetings. However, the Constitution requires each meeting to be divided in two parts: a legislative part, that is open to the public, and a non-legislative part, where deliberations take place behind closed doors. This evolution is without a doubt significant. If they show up at all for meetings of the Council, the press up to now have waited outside. Any information that is supplied is therefore necessarily filtered, and this is reinforced by the fact that the press habitually addresses the competent national minister where European issues are concerned. What the Council decides is therefore reported by the national minister in his version of events, while the latter is not the most neutral of persons given the frequent need to make compromises within the Council. It then becomes tempting to blame ‘Europe’ for unpopular measures which have to be implemented at the national level. The fact that Europe is hardly known among citizens, and if it is, only in a negative sense, is mainly because of this. Public Council meetings could thus result in improved and more neutral press coverage of European affairs. Still, the issue of public access to Council meetings remains highly controversial. Opponents go so far as to claim that this could end European progress. It should indeed not be forgotten that Europe has been built by a permanent ‘transfer of sovereignty’, achieved through hard-won compromise, from national Member States to the European forum.41 Within the Council, national ministers are often called to question national customs and autonomy, in an open debate with others, and this does not always guarantee popularity with the national rank and file. In the short term it therefore seems unlikely that European politics will become truly ‘popular’ politics. But in the longer term, a sense of Europeanness can only be created if European politics truly comes forward, revealing itself in public. Public access to Council meetings is a daring leap forward which may be risky in the short term, but will hopefully bear fruit in the longer term. In some cases the Council retains the possibility to adopt laws or framework laws alone with very little participation by the European Parliament. Such ‘laws of the Council’ include organic (i.e. quasi-constitutional) laws as well as rules in areas where the Member States are still unwilling to relinquish their national sovereignty, such as taxation and social security;42 in these areas, the Council still decides unanimously. It is therefore surprising that the rule of public access also applies to these areas, as this is surely at odds with the more ‘diplomatic’, sovereignty-related reasons which lie at the root of Council hegemony in these areas. Moreover, in the framework of the common foreign and security policy, the European Council and Council of Ministers will continue to play a key role, al-

41

42

162

ency, H. Brunmayr, ‘The Council’s policy on transparency’, in V. Deckmyn and I. Thomson (eds.), Openness and Transparency in the European Union, Maastricht, EIPA, 1998, p. 69. In the Carvel case, the Council defended itself against any form of public access (including access to documents) based on the reasoning mentioned above, namely the need to be able to achieve compromises behind closed doors (see Case T-194/94, John Carvel and Guardian Newspaper v. Raad, ECR, 1995, III-2765, p. II-2785, ground 52). See Articles III-171 and III-210 of the Constitution.

Amaryllis Verhoeven

though the European Parliament will be more systematically consulted.43 There is no sign here of ‘laws’ adopted publicly. Finally, according to the Constitution, the Council retains a role in the field of implementation, despite the fact that implementing action is in principle delegated to the Commission.44 In this way the Council can acquire executive competences by delegation (i.e. the right to adopt measures for the implementation of legally binding acts of the Union) ‘in specific cases duly justified’45 which are not further defined. One could mainly think of rather technical subjects, where uniform rules may be needed at the European level, but which would not lend themselves to an actual legislative procedure. For as opposed to the European Parliament, which has a fixed composition of elected politicians, the composition of the Council is determined on the basis of subject matter, and for technical matters experts, often from the civil service, will gather round the Council tables (or in its working groups) as representatives from the Member States.46 In addition to its democratic role as a legislative chamber, the Council thus retains a diplomatic role (as the single legislator in sensitive issues and as almost the solo player in the field of foreign affairs and security, acting with unanimity), as well as a technocratic role (in the field of implementation). In evaluating the role of the Council, it should be kept in mind that the European Council has the task of providing the necessary impetus in all policy areas of the Union (not just in the field of foreign affairs and security) for the establishment of general political guidelines and priorities. In other words, ranking above the European legislator there is also a political institution of a diplomatic nature (public access to meetings is not required, for instance) which determines the fundamental political objectives of the Union.

3.3.

The Commission: a Non-Representative ‘Guardian of the General Interest’?

As mentioned before, the Commission is not a truly representative institution; nor is it an emanation of an elected parliament. As the Commission is unable to invoke a ‘bond with the voters’, it will come as no surprise that its position is often criticized.47 It could therefore be expected that in the new constitutional organization the Commission’s importance would be reduced, in favour of more representative institutions. However, nothing turned out to be further from the truth. Under the 43 44 45 46

47

Artt. III-294 et seq. of the Constitution. See infra. Article I-37 of the Constitution. For a criticism of this system, which allegedly encourages technocracy, see M.P.C.M. van Schendelen, ‘The Council decides: does the Council decide?’, Journal of Common Market Studies, 1996, p. 531-548. See, inter alia, the strong criticism by G. Berthu, ‘Quel rôle pour la Commission dans la future Europe?’, Collegium, no. 26, 2003, p. 47-59. More neutral analyses can be found in, inter alia, R. Gosalbo Bono, ‘The Commission after Amsterdam; its future in an enlarged Union’, in T. Heukels, N. Blokker and M. Brus (eds.), The European Union after Amsterdam, The Hague, Kluwer Law International, 1998, p. 69-116.

163

Democratic Life in the European Union, According to its Constitution

Constitution, the Commission’s crucial role as the designated guardian of the European general interest is left intact. The Commission’s particular role is to guarantee the coherence, efficacy and effective implementation of European policy and, in the preparation of policy, to act as a mediator between diverging interests. Concretely, the Commission has an important task in the field of implementation, legislation and enforcement. This triple task is retained, and even reinforced, in the Constitution. First, a brief word concerning law enforcement. The Commission may initiate infringement proceedings against Member States (and, where the competition provisions are concerned, against undertakings) which breach EC law. This usually involves the sending of a formal notice, followed by a reasoned opinion.48 Contrary to what the term ‘opinion’ suggests, this latter document contains the Commission’s final position on the matter; if a Member State fails to comply, legal action can be started against it before the Court. The law enforcement competence of the Commission does not only aim at offering a better legal protection for citizens, in addition to the measures that are available nationally. Law enforcement can also be used by the Commission as a policy instrument, or rather as an instrument to facilitate the acceptance of European law where barriers are often still in place at the national level. This is the reason why the Court has invariably underlined the Commission’s discretion, i.e. the right to decide whether or not to start proceedings.49 Next, the implementing function. For many years, discussions took place concerning which Union institution, the Council or the Commission, should be given the power of the executive. The Single European Act formulated a compromise solution (cf., Article 202 of the EC Treaty), that has broadly been maintained. Under this system, it falls on the Member States to implement legally binding European acts on their territories. However, where uniform conditions for implementing acts are required, the Commission has in principle, the power to take the necessary implementing measures, although it can only act within a supervisory mechanism labelled ‘comitology’. This means that when taking implementing measures in certain sectors, the Commission must be assisted by a special committee of national representatives set up for that sector (at the moment, there are over 300 such committees). Depending on the nature of the implementing measure to be taken, the committee (and, as the case may be, the Council, to which the matter can be referred) plays a more or less decisive role in the decision making as regards implementation.50 The comitology system has been the subject of severe criticism for some time.51 Comitology would contribute to the lack of transparency, as for a long time the functioning of the committees took place entirely behind closed doors; even the existence of some committees was nearly or completely unknown. Moreover, the 48 49 50

51

164

Article 226 of the current EC Treaty. See, among others, Case C-212/98, Commission v. Ireland, ECR, 1999, I-8571. See K. Lenaerts and A. Verhoeven, ‘Comitologie en scheiding der machten: enige kanttekeningen bij het Raadsbesluit van 28 juni 1999’, Sociaal-Economische Wetgeving, 1999, p. 394-413. See, inter alia, K. Bradley, ‘Comitology and the law: through a glass, darkly’, Common Market Law Review, 1992, p. 693-721; C. Demmke, ‘The secret life of comitology or the role of public officials in EC environmental policy’, EIPA scope, 1999, p. 14-23.

Amaryllis Verhoeven

comitology system strengthened the position of the Council at the expense of the European Parliament. Since EC law does not clearly define ‘implementation’, the danger was that Member States in the implementation process would, by means of their influence in the committees, reverse or at least neutralize concessions made to the European Parliament during the legislative procedure. For, in practice, it is often the same national representatives (per specialized area) who may be found in both the Council’s working groups and the comitology committees. For these reasons, the comitology system was fundamentally reformed in 1999.52 Committee documents were in principle made accessible to the public. In addition, the possibilities for control by the European Parliament were strengthened, especially in respect of the ‘legislative committees’ which are charged with supplementing and/or amending legislative provisions of a non-essential (technical) nature.53 Nevertheless, institutional peace was not achieved. The Constitution now tries to put things right by making a further distinction between different types of non-legislative action. In particular, a distinction is made between what are called ‘delegated regulations’, i.e. rules which supplement or change non-essential elements of legislative acts, and ‘implementing acts’, which, as the term suggests, are purely executive in nature.54 In other words, a new category will be placed in between laws and implementing acts: the category of the regulation. These involve standard-setting acts in the margin of laws. While laws must define the fundamental policy choices, the further elaboration of detailed technical measures is transferred to the field of the regulation. In principle, the Commission is competent both in the field of regulation and of implementation, but must for each field it acts in a different context. The Commission can adopt a regulatory instrument upon a delegation by the European legislator. In the delegating act, the legislator (the European Parliament and the Council) may reserve the right to reclaim the matter (‘call back’) or to issue a declaration of no objection in respect of the proposed regulation. Delegation by the legislator is also required for implementing acts in the Community field (as the normal ‘implementers’ are the Member States themselves). For implementing acts, the system of comitology remains in place under the Constitution, but the Parliament will have the power, together with the Council, to organize the comitology system. The Parliament will therefore play an important role in the field of comitology.55 It remains to be seen whether the material distinction between regulation and implementation will be easy to draw in practice. In any case, the Constitution does not really clarify the distinction, since the term ‘implementation’ is nowhere defined. It may be tempting, then, for the Member States to disguise regulatory meas52

53 54 55

Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999, L 184/23. K. Lenaerts and A. Verhoeven, supra note 50. Article I-36 of the Constitution. Article I-37 of the Constitution. Up to now, the Council has decided alone on how to organize of comitology, which has obviously offered it the opportunity to elaborate rules in its own favour (see Article 202(3) of the current EC Treaty).

165

Democratic Life in the European Union, According to its Constitution

ures adopted as ‘implementing measures, and to have them adopted in accordance with the procedures for implementation. For, even under the Constitution, the Council maintains the ascendancy in the field of implementation; it can even still assign certain implementing tasks to itself.56 Much will therefore depend on the political definition of the terms ‘implementation’ and ‘regulation’ by the legislator. Given the diverging interests of the Council and the European Parliament in this field, it may be feared that this definition will become the source of a political struggle between the co-legislators for every legislative act. Also in the legislative field the Commission continues to play a key role, which may well surprise those who are more familiar with the way in which the trias politica functions at the national level. In particular, the Commission retains the monopoly on initiative,57 which means that no European laws can be laid down unless the Commission submits a proposal. That same Commission can amend or even withdraw such a proposal as it sees fit at any time during the legislative procedure.58 It is true that the Council59 and the European Parliament60 can request the Commission to submit a proposal, but the Commission may dismiss the request, provided that it adduces (proper) reasons for its decision, and this arrangement also remains in the Constitution. A new and striking feature in the Constitution is that a request for a legislative proposal may also be submitted on the initiative of not less than one million citizens coming from a significant number of Member States. This provision is mainly relevant for transnational interest groups such as non-governmental organizations. Again, the Commission will remain free to accept or not this request.61 That the Commission as a non-representative institution has the monopoly of legislative initiative may seem odd from a democratic point of view. However, in practice this monopoly may successfully ensure effective, coherent and even ‘democratic’ decision making, in particular where the Commission seeks to mediate between different and often unrepresented or underrepresented interests.62 This is therefore the basis of the legitimacy of the Commission’s monopoly on initiative: the Commission does not so much ‘represent’ an abstractly determined European general interest, but instead must attempt to find a solution based on bringing together different interests as actively as possible. This means that the legitimacy of the Commission’s actions does not so much depend on its organic structure and how it relates to other, particularly legislative, 56 57

58

59 60 61

62

166

Cf. supra. There are a few exceptions to this principle, especially in the field of foreign and security policy, and in the field of justice and home affairs. Generally speaking, however, the Constitution further restricts these exceptions. Except in the (optional) final stage of mediation between the Council and the Parliament in the codecision procedure. Article 208 of the current EC Treaty. Article 192 of the current EC Treaty. Article I-47 of the Constitution. The specific procedures and conditions required for such a citizens’ initiative are to be further determined by a ‘law’ adopted by the European Parliament and Council. A. Verhoeven, supra note 11, p. 233-234.

Amaryllis Verhoeven

institutions, but rather on the way in which the Commission exercises its powers. In other words, democracy in the sense of ‘representation’ must be supplemented here with democracy as (principled) ‘governance’.

3.4.

In Search of Legitimacy without Representation: ‘Governance’ as a Magic Formula?

On 25 July 2001, the European Commission published a White Paper on European governance.63 The aim of the White Paper was, in the first place, to subject the Commission’s functioning to a thorough legitimacy test. At the same time, the White Paper let it be understood that governance thinking can also provide legitimacy outside the context of the Commission or even the Union. Governance – gouvernance in French – according to the White Paper ‘means rules, processes and behaviour that affect the way in which powers are exercised at European level.’ Of course, the Commission did not invent the concept of governance. The origin of the concept reaches back to the Middle Ages, where it was understood to mean something along the lines of ‘the art of governing’.64 Closer to home, the term governance has caught on since the 1990s, mainly among Englishspeaking economists and political scientists. ‘Governance’ is used here in contrast to the term ‘government’ and expresses the view that democratic policy-making is not merely the result of the acts of official, centralized institutions of authority (the ‘government’), but also of a cooperative and principled interaction between a wide range of public and private parties.65 ‘Good governance’ requires more than the mere establishment of formal democratic channels for the exercise of policy, and in particular depends on the broader democratization of the public sphere underpinning a given political order. The governance approach therefore does not so much focus on formal institutions and powers, but rather on the way in which the parties involved use the powers they have been granted. Accordingly, the question in the White Paper is not, or not in the first place, which formal powers the European Commission should possess, or how the Commission should formally relate to the other European institutions and Member States. The White Paper rather focuses on how the Commission can use its competences and position in such a way that democracy in the Union is enhanced. More in particular, according to the White Paper, policy shaping must rely on five principles: openness, participation, accountability, effectiveness and coherence. The White Paper sets out a number of proposals that should help put these 63

64

65

COM(2001) 428. The White Paper gave rise to quite a number of academic reactions; see inter alia, C. Joerges, Y. Meny and J. Weiler, Mountain or molehill? A critical appraisal of the Commission’s white paper on governance (). One may recall Machiavelli’s famous precepts on governance in Il Principe, a book dedicated to Lorenzo di Medici. S. Andersen and T. Burns, ‘The European Union and the erosion of parliamentary democracy: a study of post-parliamentary governance’, in S. Andersen and K. Eliassen (eds.), The European Union: how democratic is it?, London, Sage, 1996, p. 243. See also C. Harlow, Accountability in the European Union, Oxford, University Press, 2002.

167

Democratic Life in the European Union, According to its Constitution

principles in practice. More importantly, the White Paper has received an important follow-up within the Commission. A special governance unit, set up within the Commission’s Secretariat-General, shapes and coordinates actions concerning better law making, minimum standards for consultation, impact assessment of European legislation, infringement policy, etc.66 The aim of these actions is to establish guidelines which are to bring the everyday practice of Commission activity closer to the governance ideal. At a more theoretical level, the governance approach offers an opportunity to let go of traditional assumptions concerning legitimacy, and in particular of the idea that only institutions which are representative in nature can be legitimate. This is why the governance approach also offers an escape from traditional patterns of thought on democratic legitimacy, which invariably take one specific organizational framework, i.e., the familiar framework of the nation state, as their starting point for reflection. The governance approach proposes a number of principles that can be applied ‘at all levels of administration: global, European, national, regional and local’.67 It takes no heed of the traditional (but seriously inflated) contrast between the national and international legal orders, but instead shows the continuity, the interaction and the mutual influence between all these legal orders. The governance approach thereby breaks the traditional conceptual isolation of the statal legal order, and makes the survival of democracy a concern and responsibility of all involved. As mentioned, the key words of governance thinking are openness, participation, accountability, effectiveness and coherence. The first three concepts concern the way in which decisions should be made; the final two relate to the contents of the policy. In my opinion, the key words in this list of five are accountability and participation. Some brief observations are made below concerning participation. I will conclude my article with a few thoughts on the concept of accountability.

3.5.

The Principle of Participatory Democracy

After discussing the principle of representative democracy, Title VI of the Constitution goes on to dedicate some provisions to ‘the principle of participatory democracy’. These provisions have a number of implications, especially for the Commission. The aforementioned White Paper on European governance already stressed the need for ‘wide participation throughout the policy chain, from conception to implementation.’68 It announced a series of measures which could improve participation in decision making, especially by reinforcing contacts between the Commission and representatives of civil society (interest groups, NGOs). The White Paper also stressed the specific roles of the Committee of the Regions and of ECOSOC, which represent, respectively, regional and local identities within Europe and organized civil society. In particular, the White Paper urged these institutions to take 66 67 68

168

See . See the White Paper on European governance, p. 11. Ibidem.

Amaryllis Verhoeven

a more proactive stance, by preparing more own-initiative reports concerning matters of general interest, also before or even independent from a legislative initiative of the Commission.69 ECOSOC itself had already launched a debate on its role and contribution as a ‘functionally representative institution’ in a democratic Europe.70 Article I-47 of the Constitution now seeks to ensure participation in political decision making by means of the following measures. First of all, the institutions of the Union must, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action (Article I-47, paragraph 1). This implies that the European institutions have to provide the necessary information and infrastructure so as to enable the creation of a European ‘public area’, i.e., an area where the formation of a European public opinion can take place through an exchange of ideas. In practice, one could think of improving access to information and creating interactive websites that function as a virtual forum for discussion. It is not clear whether ‘means’ also includes ‘financial means’ – Article I-47 does not immediately appear to be the basis for a specific subsidization policy. More generally, the improvement of communication with and between the citizens in our media sensitive society is one of the major challenges facing the Union. Further, all institutions of the Union must maintain an ‘open, transparent and regular dialogue’ with ‘representative associations and civil society’ (Article I-47, paragraph 2). How this will be put into practice remains to be seen, especially where institutions such as the Council are concerned (where transparency is not always guaranteed, cf. supra). It should be added that, according to Article I-52, paragraph 3, the Union must also maintain an open, transparent and regular dialogue with churches and non-confessional organizations. As regards the Commission, the Constitution specifies that the Commission, ‘in order to ensure that the Union’s actions are coherent and transparent’, must carry out ‘broad consultations with parties concerned’ (Article I-47, paragraph 3). As mentioned before, the Commission itself already reached this conclusion in the White Paper on European governance. The Commission has meanwhile published minimum requirements which such consultations have to fulfil.71 One method of consultation, which has existed for quite a while and is still very successful, is the practice of publishing Green and White Papers which prepare Commission policy in a particular area and invite broad consultations. As mentioned before, a major innovation in the Constitution is the rights of citizen’s initiative (Article I-47, paragraph 4). Private citizens can submit a proposal for a legislative initiative to the Commission, on the condition that one million signatures are gathered in a number of Member States. While the Commission remains 69

70

71

The EC Treaty for certain policy areas imposes the obligation to consult ECOSOC or the Committee of the Regions in the framework of a legislative procedure; however, the Committees in question can also adopt own-initiative opinions. See inter alia the opinion of the Economic and Social Committee ‘on the role and contribution of civil society organisations in the building of Europe’ of 23 September 1999, OJ 1999, C 329, 8.1. See COM(2002) 704 final of 11 December 2002.

169

Democratic Life in the European Union, According to its Constitution

free to take up the proposal or not, the right of a citizen’s initiative gives citizen’s an important means of making directly their voices heard at the European political level. Article I-48 of the Constitution also mentions the ‘social dialogue’, which is further elaborated in the provisions concerning social policy.72 The social partners have already been involved in the preparation of legislative acts for some time. Social policy agreements concluded between social partners can also be declared compulsorily applicable by the Council on the proposal of the Commission. In these cases, the social partners actually engage in lawmaking, bypassing the standard channels of decision making, and especially the intervention of the European Parliament. As the guarantees that surround the normal legislative procedure are lacking here, one would normally expect that such ‘lawmaking’ by social partners, with the help of the Commission and Council, would be subject to clear procedural rules ensuring that requirements of democracy are respected. Up to now, such rules have, however, been lacking. The Court of First Instance has attempted to fill this void in proceedings for the annulment of a social agreement brought by UAEPME, an organization representing the interests of employers in small and medium-sized enterprises. In this case, the Court held that agreements between social partners may only be declared compulsorily applicable by the Council (on the proposal of the Commission), if they are truly ‘representative’; in other words, if they express a sufficient number of votes and a sufficient diversity of interests.73 It is a great pity that the Convention and IGC have failed to seize the opportunity of providing a better institutional framework for the social dialogue within the context of the Constitution. More generally, while more citizen participation in EU decision making is certainly to be welcomed, forms of ‘civil’ and ‘social’ dialogue should not be allowed to ‘hijack’ formal channels of decision making. ‘Functional representation’ (i.e., representation of certain interests) cannot replace ‘political representation’ at the decision making level74 Civil society has an important role to play in shaping political opinion. Such a moulding of political opinion can however only contribute to democracy if the basic rules of the democratic dialogue are respected and provided a certain dividing line is kept in place between the informal public area and the formal authority structures of the state. Direct participation in the decision making of functional interests entails a double risk. First of all, a democratic order requires that the state (i.e., the structures of public authority) maintains a critical distance and sufficient independence from (organized) society. Interest groups primarily represent themselves or certain, not yet formally recognized interests and this is precisely 72

73 74

170

Articles III-104 to III-106. These provisions for the most part repeat current EC law, see Article 138 et seq. of the EC Treaty. Case T-135/96, UAEPME, ECR 1998, II-2335. See inter alia D. Obradovic, ‘Accountability of interest groups in the Union lawmaking process’, in P. Craig and C. Harlow (eds.), Lawmaking in the European Union, The Hague, Kluwer Law International, 1998, p. 354-385; D. Gadbin, ‘L’association des partenaires économiques et sociaux organisés aux procédures de décision en droit communautaire’, Revue trimestrielle de droit européen, 2000, p. 1-46.

Amaryllis Verhoeven

what gives them their added democratic value. However, only truly ‘representative’ interests can be admitted to formal decision making, as otherwise state authority threatens de facto to come under the control of private interests. The paradoxical result is that, where civil society becomes increasingly involved with formal decision making, its authenticity and added value risk to decrease. This is probably the reason why the White Paper argues, on the one hand, in favour of a more ‘principled’ approach to the dialogue with interests groups, but on the other hand opposes the full formalization of this dialogue (by drawing up, for instance, fixed lists of ‘representative organizations’ and guaranteeing them certain participation rights). Secondly, functional interests, especially where they are given the opportunity to participate directly in formal decision making, also have to abide by the constitutional rules that govern such decision making (representativity, internal democracy, accountability, transparency, etc.). As observed above, the institutional framework of the social dialogue still leaves much to be desired in this respect.

4.

Concluding Evaluation

Above, the self-image of democracy which emerges from the Constitution for a new Union has been briefly analysed. The Constitution defines democracy within a federal context, whereby citizens are represented in several ways and on several levels. The Union is however not a federal state, nor does it organize ‘democracy’ in the federal-statal manner sense, whereby the ‘people’ participate in decision making through representative institutions. Some parts and methods of decision making within the Union continue to be based on a diplomatic model. Other parts still show a strong technocratic influence; this is certainly true for the Commission which was originally established as a free and independent committee of ‘wise persons’ who had to formulate the (technical) ‘general interest’ in the transnational field. The Commission is trying to step out of the context of (purely) technocratic legitimacy by means of a renewed ‘governance’ thinking. In this thinking, the focus is first on the way in which decisions are made, not on who the decision-makers are or how they relate, institutionally, to the people. Taken to extremes, a system of democratic legitimacy based on ideals of governance could even become a system without elections or without any element of political representation: a system, thus, of governance without government.75 Much depends here on how the concept of accountability – one of the five pillars of governance thinking as promoted in the White Paper – is defined. The White Paper does not say much about this. Under the heading of ‘accountability’ the White Paper merely states that ‘each of the EU institutions must explain and take responsibility for what it does in Europe.’ More concrete proposals concerning the aspect of accountability are sought in vain. The White Paper rather creates the impression that accountability mainly boils down to the achievement of good results, which then have to be properly communicated to the public. Good results are, how75

Arguments in favour of such a system are to be found in, inter alia, M. Everson, ‘Administering Europe’, Journal of Common Market Studies, 1998, p. 465-496.

171

Democratic Life in the European Union, According to its Constitution

ever, not sufficient. The questions who determines the contents of policy and how, remain important. The answer to these questions cannot simply be ‘participation’. As observed above, interests groups can and must be included in the preparation of policy, although they must not be allowed to take over the policy-shaping function. In a purely governance-oriented approach, it may be feared that the contents of the policy are eventually drawn up by a handful of technocrats, or, worse even, by a blind force like the laws of market (or other counter-forces), helped, as the case may be, by interest groups. In this conception, the primacy of politics will disappear to make way for the different powers of interests and interest groups and for technocrats and enlightened rulers who manage to achieve good ‘results’. The question is, however, whether in the end such governance-system can still be considered democratic.76 This does not mean that a governance approach is incapable of bearing democratic fruit, especially in the context of the European Commission. Although the Commission irrefutably engages in policy making, it does not have the final responsibility for drawing the larger political outline. This is done by the Council and the Parliament – both representative institutions – and above them are the European Treaties (and soon perhaps a European Constitution), which are themselves already full of ‘policy declarations’. After all, the Treaties not only stipulate how decisions are to be made, but also concerning which topics and, more importantly, which objectives have to be taken into consideration in these decisions.77 These objectives are further interpreted and given shape through the European Council meetings which give political impulses and every now and then issue actual policy declarations. In short, a governance approach in the context of the Commission is beneficial and useful. One should avoid, however, considering ‘governance’ as a valid alternative for European democracy itself. If the Union truly wishes to blossom into a perpetuator of the democratic tradition – and it owes it to its roots to do so – then a fundamental reflection on the ‘primacy of politics’ is in order. This can be achieved through a good mixture of ‘representative’ and ‘participatory’ forms of democracy. To this extent, the inclusion and discussion of both concepts in a separate Title on democracy in the new Constitution, is certainly to be welcomed.

76

77

172

P. Allott, ‘European governance and the re-branding of democracy’, European Law Review, 2002, p. 60-71. See, inter alia, K. Lenaerts, ‘De Europese Unie: doel of middel?’, Rechtskundig Weekblad, 1999, p. 689-710.

Substantive Frameworks

Michiel A. Heldeweg*

GOOD ENVIRONMENTAL GOVERNANCE IN THE EU: LESSONS FROM WORK IN PROGRESS?

‘Whereas previous environmental measures tended to be prescriptive in character with an emphasis on the ‘thou shalt not’ approach, the new strategy leans more towards a ‘let’s work together’ approach.’ (Fifth Environmental Action Programme, 1993)

1.

Introduction

The leading objective of this book is to ascertain whether the notion of ‘European good governance’ offers operational parameters for policy practice and for institutional relations within the European Union (EU), between the EU and its member states, and between European governments and European civil societies. This contribution is especially concerned with the question of whether the concept of good governance is relevant to European Environmental Law and, if so, in what sense and to what extent.

1.1.

Relevance of the White Paper

The White Paper on Governance calls for a renewal of the ‘Community method’ by advocating less of a ‘top-down approach and an expansion of its policy tools with non-legislative instruments’.1 This approach could well have a bearing on environmental policies as we find that new instruments such as subsidies, taxation and

*

1

Associate Professor of Constitutional and Administrative Law at the School of Business, Public Administration & Technology and the Institute of Governance Studies, University of Twente; researcher at the Netherlands Institute of Government, and a member of the Ius Commune Center for Environmental Law (ICCEL). White Paper, p. 4 (see also p. 8).

175

Good Environmental Governance in the EU

tradable pollution rights, as well as gentlemen’s agreements, benchmarking and auditing are being introduced within this sector.2 The White Paper presents five underlying principles of good governance: openness; participation; accountability; effectiveness; and coherence. Again, one can well imagine that these principles are relevant to environmental policies. Openness and participation, for instance, relate to the Directives on public access to information on the environment,3 on environmental impact assessment (EIA)4 and on integrated pollution prevention control (IPPC)5 and the regulation on the European Environment Agency.6 Likewise, the principle of Coherence has a bearing on Article 6 EC, which states that ‘Environmental protection requirements must be integrated into the definition and implementation of the Community policies (…)’.

1.2.

Focus on Legal Policies

In this contribution the analysis will focus on the choice of legal policies in environmental law. That is to say on the specific choice of and the (possible) guidelines in the use of (binding) legal instruments. This objective requires research to be conducted into the (possible) match between the Commission’s ‘principles of good governance’, on the one hand, and the legal cornerstones of and existing legal policy practices in environmental law in Europe, on the other. With regard to ‘legal cornerstones’ we will focus on relevant primary European Community (EC) law, such as the provisions of Article 2 (‘… a high level of protection and improvement of the quality of the environment’), Article 3 (‘A policy in the sphere of the environment’), Article 6 (the aforementioned integration principle), Article 174 (objectives, aims, principles, relevant data and international agreements with regard to Community environmental policies), Articles 175 and 176 (concerning voting procedures and the right to retain or introduce unilateral measures), as well as the notion of sustainable development (Art. 2 EC and Art. 2 of the EU Treaty: ‘… and to achieve balanced and sustainable development,…’). One can imagine that these primary ‘cornerstones’ of EU environmental law offer a basis for a specified range of ‘appropriate environmental policy-practices’, in which certain legal instruments may or may not play a part (or only under certain premises or conditions). Research into the relationship between the Commission’s principles of good governance and the environmental legal policies that are being pursued or are presently in preparation, requires a closer look at the main environmental measures (such as directives) and programmes (mainly the EAPs) that have been put forward by the EC. Both horizontal or non-sectoral legislation and key vertical or sectoral legislation offer an interesting perspective as instances of legal policy making – espe2

3 4 5 6

176

Note the Fifth Environmental Action Programme (EAP), which will be discussed later in this contribution. Directive 2003/4, (2003) OJ L 41. Directive 85/337, (1997) OJ L 73/5 (amended). Directive 96/61, (1996) OJ L 257/26 (amended). (1999) OJ L 117/1.

Michiel A. Heldeweg

cially with a view to what types of legislation are being used, such as framework directives, directives that leave room for implementation by co-regulation, resolutions, and white and green papers. With these (above) approaches there is a focus on the EU level. Clearly the White Paper also includes the level of global, national, regional and local authorities.7 It will not be possible to address all of these levels in this contribution, however. Because the success of legal policies primarily rests with implementation on the national level, a concise analysis will be presented of some trends in member states’ environmental law in conjunction with legal policy choices on the Community level.8

1.3.

Perspective

This contribution aims to present a broad view rather than an in-depth analysis of good governance and environmental law in Europe. The function of the contributions on substantive issues in this book is to determine whether the notion of good governance strikes a chord in these areas. This contribution is therefore not primarily meant to serve environmental law experts, but rather those members of the general legal public who are interested in matters of governance and law.9 The subtitle ‘work in progress’ might be taken to suggest that the principles and initiatives in the White Paper are still far removed from today’s environmental policy making. It can also be taken to imply that environmental legal policy making has been a ‘front runner’ in opening up the perspective of good governance, albeit that the goals have not yet been achieved. Thus an analysis of environmental legal policy making could be interesting in the sense that it offers a view on how the principles of good governance function in practice and will hopefully serve to show which of the two interpretations holds true. Firstly, however, we will look at how we must understand the notion of governance and indeed the notion of good governance, in order to fine-tune this article’s contribution (see § 2). Then we will analyse the environmental legal cornerstones and legal policy practice (in § 3 to § 6) against the backdrop of the five main principles of good governance. In view of these findings a conclusion will be drawn (in § 7) as to whether we are witnessing a shift in European environmental governance and how the results of the analysis relate to the (possible) future framework of the EU constitution.

7 8

9

White Paper, p. 10. The observations in this regard are mainly been derived from R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), Public Environmental Law in the European Union and the United States, A Comparative Analysis, Deventer, Kluwer Law International 2002, especially the chapter on comparative remarks. For this reason this contribution relies more heavily on the corpus of existing law (‘that which is already there’).

177

Good Environmental Governance in the EU

2.

Good Governance

The aim of first addressing the notion of good governance in a more general way is to obtain a clearer picture of what we should be looking for when comparing the Commission’s approach with the cornerstones and practices of environmental law in Europe.

2.1.

The Principles of Good Governance

The White Paper lists five principles underlying the notion of good governance (on the basis of democracy and the rule of law) at all levels of government:10 1) openness, which primarily means active communication by the institutions and making governmental decisions more accessible and better understandable; 2) participation, mainly by ensuring wide involvement throughout the whole policy chain; 3) accountability, which entails that institutions and member states explain their actions and take the necessary responsibility for such actions; 4) effectiveness, requiring that policies are effective and timely, with clear objectives, an evaluation of their future and past impact, and are pursued at the proper level and implemented in a proportionate way; 5) coherence, necessitating that policies and actions cross the boundaries of sectoral policies, are performed with a clear view as to overall consistency and are more easily understood. Furthermore, the White Paper suggests a number of proposals for change: 1) better involvement in shaping and implementing EU policies; 2) improving the quality and enforcement of EU policies; 3) a stronger link between European governance and the rest of the world; 4) refocusing the role of the institutions.11

2.2.

The Concept of Good Governance

The White Paper offers little clarity concerning the concept of governance: ‘“Governance” means rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence’.12

The core element in governance seems to be the (closer) relationship between government and civil society. It takes a ‘joint venture’ between government and society to set and to implement policy targets. In this respect, according to the White Paper, ‘…, people have disappointed expectations but expectations nevertheless’. Therefore, ‘A better use of powers should connect the EU more closely to its citizens and lead to more effective policies’. This reflects the current view of many democratic welfare states that the relationship between government and society has shifted from a top-down (vertical) relationship to a reciprocal (or more horizontal) one. In 10 11 12

178

Ibidem. White Paper, p. 11. White Paper, p. 8, n. 1.

Michiel A. Heldeweg

legal terms the primacy of collective decision making may still rest with governments, but the choice of policies, with regard to both the targets and the means of achieving such targets and their implementation, require a ‘closer harmony’ with those members of society that are mainly involved. Organizations representing civil society13 mobilize people and support. Moreover, they can serve as an early warning system for political debate. The EU wants to encourage the development of civil society and expects organizations representing civil society to follow the principles of good governance.14

2.3.

The Theory of Good Governance

If the White Paper aims to renew of the Community method then we need to reflect somewhat more closely on the types of governance and the shifts therein as presented in the academic literature. In a strategic study commissioned by the Netherlands Organisation for Scientific Research (NWO), entitled: ‘Shifts in governance: Problems of Legitimacy and Accountability’, Van Kersbergen and Van Waarden presented an overview of the various strands in the academic governance discourse.15 The authors discuss changes in governance concerning the fact that traditional ways of governing society, politics and the economy are changing. These changes take place in various forms in location, in capabilities and in styles of governance. It is interesting to note the different meanings given to the concept of governance in the literature, with a view to questions of legitimacy and accountability:16 firstly, governance as in good governance, secondly, governance as in Governing without Government, and thirdly, governance in Neo-Institutional Economics. Good governance in the ‘World Bank view’ refers to a sound and sustainable economic development, efficient government, effective civil society and a successful private sector, based on a participatory and liberal democratic tradition, equity, equality and the rule of law. In both the private and the public sector, we find strands of this good governance concept.17 Governing without government is often used with reference to global governance, considering the non-hierarchical relations between interdependent states. In networks theory we find this concept in relation to the idea of governance taking place in pluricentric networks, in contrast to multicentric (market) and unicentric

13 14 15

16

17

See for a definition, White Paper, p. 14, n. 9. White Paper, p. 15. K. van Kersbergen and F. van Waarden, Shifts in Governance: Problems of Legitimacy and Accountability, Paper on the theme ‘Shifts in Governance’ as part of the NWO Strategic Plan 2002-2005, July 2001, p. 4-77. Ibidem, p. 15. Note that I have taken the liberty of regrouping their presentation in three main clusters. Under the heading of corporate governance and new public management.

179

Good Environmental Governance in the EU

(hierarchical/state) forms of governance, and also in multi-level governance (both in intrastate and/or international relations).18 Neo-institutional economics emphasizes that markets are not spontaneous social orders but are created and maintained by institutions laying down and enforcing the basic rules of the game and structuring incentives. Economic transactions are not only governed by governments but by all kinds of governance structures, whose mechanisms are subject to renewed study.

2.4.

Shifts?

Unfortunately the White Paper does not explicitly link its definition of governance to any of the above strands of academic literature. In my view, however, the ‘World Bank view’ seems closest to the Commission’s objectives, especially with regard to the stronger involvement of citizens and civil society in EU policy making and policy implementation. This view also holds true, if we compare the White Paper proposals with some of the so-called ‘shifts in governance’, that is to say changes in types or styles, models or modes of governance, also presented in Van Kersbergen and Van Waarden’s article.19 Clearly, although the right to a judicial review is a baseline for the White Paper,20 the ‘shift from governmental to court governance’ is not an objective of the White Paper. The same applies to the ‘shift from governance through public to governance through semi-public organizations’ – although the White Paper does propose an increase in the number of regulatory agencies. However, this is limited to areas where one single public interest is predominant and the choices available have little or no political content.21 Furthermore, the White Paper highlights the need to reinforce the ‘culture of consultation and dialogue’22 and the Commission advocates that civil society must itself follow the principles of good governance,23 if only to offer a basis for coregulation.24 A ‘shift from governance by public to governance by private organizations’, however, is not the objective of the White Paper, but, at its best, it aims to renew the Community method by ‘[…] the refocusing of the Institutions [...]’.25 For that same reason one could argue that a ‘shift from government to network governance’ does not seem to feature in the White Paper’s plans. Clearly the Commission’s objective of ‘renewal’ is not a project leading up to shared legal powers with civil society actors. Even co-regulation is proposed under the firm condi18

19 20 21 22 23 24 25

180

Governing without governments is also a key issue with reference to the ability of civil society, especially of local societies, to self-organize and self-manage their common pool resources and prevent their depletion. Ibidem, p. 29–50. If only because it follows on from the (explicitly adhered to) rule of law. The present EEA (European Environmental Agency) does not belong to this category. Ibidem, p. 16. Ibidem, p. 15. Ibidem, p. 21. Ibidem, p. 33.

Michiel A. Heldeweg

tion that ‘[...] a framework of overall objectives, basic rights, enforcement and appeal mechanisms, and conditions for monitoring compliance is set in the legislation’.26 Still, the White Paper does indeed propose a closer linkage between EU institutions (and member states’ governments), on the one hand, and civil society, on the other. Such a closer link can only be achieved through, amongst other things, more openness and more room for participation. It requires opening up towards society and considering it to be a more trustworthy partner in collective decision making. This would amount to pluricentrism only in the more moderate sense of agreeing that ‘governments in Europe’ need to interact and indeed co-operate in social networks and should promote the existence of such networks.

2.5.

Focus

The White Paper does not propose a revolutionary shift. That, however, is not to say that its main objective of a closer relationship between governments in Europe and Europe’s civil societies, embedded in a notion of good government that is similar to the World Bank’s perspective, should not be taken seriously. In the following analysis this ‘closer relationship’ offers an important viewpoint as regards environmental law in Europe. An attempt will be made to determine if the good governance approach reaches beyond the scope of ‘more interaction’ and extends to neo-institutional governance which involves the introduction of innovative legal policies in the shape of new environmental policy instruments. Is there a move towards ‘market-based instruments’ that appeal to a ‘shared responsibility’ (such as ‘economic’ or indirect and ‘suasive’ or self-regulatory instruments), away from or in addition to command and control (or direct/top-down) regulation?27 The outcome of this analysis will – hopefully – add to a better understanding of the White Paper’s principles of good governance and offer a position for a (critical) appraisal of the EU Constitutional Treaty. For the reason of more easily introducing ‘Environmental Law in Europe’ to ‘non-specialists’, the analysis will commence with the good governance principles of coherence and effectiveness, to be followed by accountability and will conclude with a combined analysis of openness and participation.

3.

Coherence

The principle of coherence stresses the need for overall consistency across the boundaries of sectoral policies. Thus, not only can it serve the overall effectiveness of policies, but it can also make policies easier to understand, thus creating a baseline for

26 27

Ibidem, p. 21. See, for instance: A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, ‘European Governance and the Transfer of ‘New’ Environmental Policy Instruments (NEPI’s) in the European Union’, 81 (3) Public Administration, 2003, p. 555-574 and B. Rittberger and J. Richardson, ‘Old wine in new bottles? The Commission and the use of environmental policy instruments’, 81 (3) Public Administration, 2003, p. 575-606.

181

Good Environmental Governance in the EU

civil society’s involvement. From the point of view of environmental law a few aspects are clearly related to this principle and addressed below.

3.1.

Sustainability and Integration

Article 2 EC lays down the Community task of (among other things) promoting a: ‘[…] harmonious, balanced and sustainable development of economic activities, […] sustainable […] growth, […] a high level of protection and improvement of the quality of the environment […]’. Article 2 of the EU Treaty lists the objective: ‘[…] to achieve balanced and sustainable development […]’. Sustainable development is defined in the 5th Environmental Action Programme (EAP) as: ‘continued economic and social development without detriment to the environment and the natural resources on the quality of which continued human activity and further development depend’.28 It is generally assumed that the introduction of the concept of sustainability (and the reference in Art. 2 EC to ‘a high level of protection’) does make it clear that there is no (longer a) hierarchy between the economic and the ecological objectives of the EU/EC.29 Furthermore, sustainability requires a closer and more ‘positive’ relationship between environmental policies and other policy areas. This also follows from the integration principle of Article 6 EC. Due to this article, ‘Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development’. The wording ‘must be’ means that the external integration of environmental objectives, amongst which are the requirements of Article 174 EC (see below), is achieved in other policy sectors.30 The integration principle does not mean that the environment has priority over other policy areas; it primarily serves to underline the emancipation of environmental policies. If, however, within another policy area an objective can be attained in a number of ways and without prejudice, Article 6 EC would require that the best environmental option is chosen. We must keep in mind, though, that the EC/EU institutions have a broad discretion when it comes to defining environmental policy – a discretion that will be marginally tested by the courts.31

28

29

30

31

182

OC(1993) C 138/1, p. 12. See also Article 2(4) of regulation (3062/95) on Tropical Forests, (1995) OJ L 327/9, and, with reference to the 1987 Brundtland Report, the definition in P. Sands, Principles of International Environmental Law, part I, Manchester, Manchester University Press, 1994, p. 198, a development that meets the needs of the present without compromising the ability of future generations to meet their own needs. G. van Calster, ‘Public Environmental Law in the European Union’, in R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), Public Environmental Law in the European Union and the United States, A Comparative Analysis, The Hague, London, New York, Kluwer Law International, 2002, p. 465–515, at p. 474. J.H. Jans, European Environmental Law, Deventer, Europa Law Publishing, 2000, p. 9. J.H. Jans, supra note 29, p. 18. Note: ‘must be’ does not detract from the fact that Article 174(3) EC includes merely as ‘taking account of’ certain aspects of environmental policy making. Ibidem, p. 21-22; G. van Calster, supra note 29, p. 477.

Michiel A. Heldeweg

Several strategic EC initiatives underpin the importance of integration and sustainability.32 Already in 1983, in the 3rd EAP, the notion of integrating environmental policy making into other policy areas was launched.33 Subsequently the 4th EAP, which appeared after the Single European Act, strengthened the call for integrated policy making.34 The most explicit call to escape from ‘the environmental ghetto’ was made by the introduction of the new policy of ‘sustainability’,35 in the 5th EAP. Policy concerns were addressed in target sectors, such as energy, agriculture, industry and tourism, by a better application of the ‘polluter pays principle’ (through the internalization of external costs) and by promoting participation and the notion of ‘shared responsibility’.36 In 1998 at the Cardiff summit the Council accepted the Commission’s ‘Partnership for Integration’ report,37 in which environmental integration was presented as a ‘chief concern’ in the EU and it was stipulated that the dialogue between sectoral and environmental policy makers (on all levels) should be facilitated. In 2001, at the Gothenburg European Council, the Commission responded to the Council’s request at the Helsinki summit of 1999 that a proposal should be prepared for a long-term strategy dovetailing policies for economically, socially and ecologically sustainable development. The final document, A Sustainable Europe for a better world: A European Union Strategy for sustainable development,38 offered a promising perspective. This was met by further support in the 6th EAP,39 which called for support for environmental integration ‘by effective environmental assessment of new policy proposals’. The Gothenburg conclusions called upon the Commission to present mechanisms to ensure sustainability impact assessments on all major policy proposals, covering economic, social and environmental consequences. Although this presentation of mechanisms was expected at the Laeken summit of 2001 it was not until the 2002 Barcelona summit that the Commission – merely – underlined the need to assess ‘the overall impact and coherence of policies (…) against overall long term objectives’, adding that ‘The Commission is currently developing mechanisms for assessing the sustainability impact’.40 Meanwhile in 2001 the Directive on strategic environmental assessment, relevant to strategic policy proposals, was adopted.41

32

33 34 35

36 37 38

39 40

41

For a summary, see: J. Scott, ‘Law and Environmental Governance in the EU’, International and Comparative Law Quarterly, 2002, p. 996-1005. (1983) OJ C 46/1. See also B. Rittberger and J. Richardson, supra note27, p. 576-577. (1987) OJ C 328/1. B. Rittberger and J. Richardson, supra note 27, p. 577 (following D.A. Schön and M. Rein, Frame reflection. Toward the resolution of intractable policy controversies, New York, Basic Books, p. 4). Ibidem. COM(1998) 333 final. COM(2001) 264. See also: Presidency Conclusions, Gothenburg European Council, 15-16 June 2001, especially. 4-8. Further discussed below, under § 4.1. Presidency Conclusions, Barcelona European Council, 15-16 March 2002, especially 15 and furthermore 27-39. Directive 2001/42, (2001) OJ L 197/30.

183

Good Environmental Governance in the EU

Through Article 6 EC the environmental principles of Article 174 EC (like the precautionary principle – see also § 5) can become interpretative guidelines for setting environmental standards both within and outside the environmental policy area. Together with the concept of sustainability (in Art. 2 EC and Art. 2 of the EU Treaty) this should benefit the overall consistency in environmentally relevant decision making in the EC. It should be remembered, though, that the integration principle only binds the Community institutions and, strictly speaking, not the member states.42 In the course of secondary legislation and its implementation, however, member states will be increasingly bound by external integration – for instance, on the basis of the Directive on strategic environmental assessment. Work is currently being done to formulate further guidelines for translating the integration principle into other policy areas.43

3.2.

Coherence and IPPC

When discussing integrated policy making, we should also consider the Directive on Integrated Pollution Prevention and Control (IPPC).44 This Directive is primarily concerned with a more integrated, ‘horizontal’ approach to environmental problems. Instead of separately controlling emissions into the air, water and soil – thereby running the risk that pollution is transferred from one medium to the other– this Directive offers a framework for an integrated approach. The focus of integration lies in the granting of permits (Arts. 4-9). Member states are under an obligation to ensure that the conditions of and the procedure for issuing a permit are fully co-ordinated if more than one public authority is competent (Art. 7). The authorities concerned should orientate towards an effective integrated approach to the proposed activity. The Directive also lays down a number of generally applicable substantive criteria (Art. 3). The permit itself is to include specific requirements for air, water and soil protection, and for pollutants that are likely to be emitted from the installation in question. The permit should also include emission limit values (based on the best available techniques – BAT) (Art. 9). Although the introduction of general environmental law codes had already began in the member states before the IPPC Directive was introduced, this Directive has clearly given a new impetus to this trend, if only by the requirement that when issuing permits there is to be co-ordination between different environmental sectors. In some cases – as in Denmark, Ireland and the Netherlands – member states have gone beyond co-ordination and have (fully) integrated permits.45 Because the IPPC Directive also requires BAT standards, one can expect that many general environmental law codes will also be(come) framework legislation, laying down competences for setting quality standards and emission limit values.

42 43 44 45

184

See case C-379/92 Peralta 1994 [ECR] I-3453. . See n. 5. R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 573, as well as p. 97 and p. 103 (Denmark), p. 257 (Ireland) and p. 358 (the Netherlands).

Michiel A. Heldeweg

3.3.

Summing Up

Amongst environmental law specialists it is a well-known statement that external integration begins with internal integration. For this the IPPC Directive is relevant because it obliges member states to integrate environmental care internally. This internal integration is increasingly matched by general environmental law codes in the various member states. Furthermore, in several directives, such as the Nitrate, the Post-Seveso II, the Wild birds and the Habitats Directives,46 one can find examples of linking environmental care to spatial planning, so as to ensure external integration.47 The Nitrate Directive, for example, requires that the member states designate vulnerable zones containing areas of land that drain into waters identified by the same member state as being affected by nitrate pollution (on the basis of community standards). For these zones action programmes are to be set up, also entailing mandatory measures, such as limit values. In the Post-Seveso II Directive on hazardous accidents, member states are obliged to ensure that town and country planning takes account of higher risks in areas surrounding hazardous activities. The Directives on wild birds and on habitats48 include obligations for town and country planning to establish, for instance, special conservation areas. In a similar sense the Directive on Environmental Impact Assessment49 improves external integration. Furthermore, the Directive on strategic environmental assessment shows that the concept of sustainability offers a platform for external integration on the level of strategic planning or programming in different policy areas. Meanwhile on the member state level we find that in some cases, such as in Austria, Denmark, France and the Netherlands, attempts are being made to link plans more closely in the areas of the environment, urban planning and nature conservation.50 On a more general note, one can also conclude that the notion of sustainability (as included in Art. 2 EC and taken from the Rio Convention) is on the increase in member states’ policy statements and general legislation and certainly also in planning documents.51 From the point of view of coherence, also in the sense of making environmental law more understandable, the question remains whether the introduction of a general environmental law code in a number of member states should be followed at the Community level. Such a comprehensive general framework directive could also give guidelines for policy co-ordination. More importantly, however, integration and sustainability clearly strike a chord with the notions of shared responsibility amongst all the social actors in46

47

48 49

50

51

Directive 91/676, (1991) OJ L 375/1; Directive 96/82, (1997) OJ L 10/13; Directive 79/409, (1979) OJ L 103/1 (amended); Directive 92/34, (1992) OJ L 206/7. The difficulties relating to the different procedures following from Article 175(2) EC will be discussed in § 5.2 (accountability; procedures). See n. 46. Directive 85/337, (1985) OJ L 175/40, with a major amendment by Directive 97/11, (1997) OJ L 73/14. R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8: Austria, p. 14; Denmark, p. 102-103; France, p. 183-184; the Netherlands, p. 355-357 and, generally, p. 57. Ibidem, p. 572.

185

Good Environmental Governance in the EU

volved and a more bottom-up (as against top-down) approach may be seen in the choice of instruments. Nevertheless taking the step from the ‘declaratory level’ to the ‘operational level’52 still poses serious problems. This will be commented upon in the next section (especially under § 4.1).

4.

Effectiveness

The principle of effectiveness is especially interesting with regard to the introduction of new environmental instruments, signifying a turn towards a market-based approach embedded in the notion of shared responsibility between government and civil society. For the purpose of discovering whether such a shift away from ‘command and control’ legislation has taken or is taking place, a number of relevant aspects have been selected.

4.1.

Strategic EC Environmental Policy Perspective

According to Article 175, paragraph 3 EC the Community is to adopt general action programmes, setting priority objectives, on the basis of which the Council is to take the necessary initiatives (by introducing measures) whereby these objectives can be attained. Earlier, in § 3.1 of this contribution, some of these EAPs were already mentioned. Even before Article 175 EC was introduced the Community had adopted its first EAPs, setting priorities for a time scale of 4 to 5 years. Plans were presented in 1973, 1977, 1983, 1987 and 1993.53 Each of these plans had its own focus. The first two EAPs were mainly concerned with setting the objectives and principles and pointing out the most essential remedial actions. The third EAP was primarily concerned with the preventive approach and integrating the environment in a socioeconomic context. Promoting a high level of protection by the use of strict environmental standards was the main element in the fourth EAP. For this contribution the Fifth EAP is especially interesting, as it was the first EAP with a truly strategic content. Its title, ‘Towards Sustainability’, indicated that environmental policies were to entail a change in patterns of behaviour in society as a whole, especially through the much stronger involvement of all social actors. The aforementioned notion of ‘shared responsibility’ is presented as a prerequisite for sustainable development and is understood to entail ‘partnerships’ with and participation of social and economic actors in setting and implementing environmental policies, through applying a much broader range of instruments: more bottom-up (as in self-regulation, by labelling and auditing), more market-based (e.g. taxes and fiscal measures) and more ‘horizontal’ or ‘suasive’ actions (support by means of public information and education).

52 53

186

B. Rittberger and J. Richardson, supra note 27, p. 575. (1973) OJ C 112/1; (1977) OJ C 139/1; (1983) OJ C 46/1; (1987) OJ C 328/1 and (1993) OJ C 138/1.

Michiel A. Heldeweg

In 1998 a review of this Fifth EAP was presented,54 stressing, amongst other things, the need for: 1) a more consistent approach to the integration principle; 2) the use of a broader range of instruments; 3) investing in better communication, diffusion of information, training and education so as to increase awareness concerning the need for greater sustainability and to promote the required behavioural changes. Finally, in 2002, the sixth EAP, ‘Environment 2010: Our Future, Our Choice’, was launched.55 To achieve improvements in priority areas, such as climate change and nature and biodiversity, five approaches are set out. According to this EAP, these approaches: ‘emphasize the need for more effective implementation and more innovative solutions. The Commission recognizes that a wider constituency must be addressed, including businesses that can only gain from a successful environmental policy. The Programme seeks new and innovative instruments for meeting complex environmental challenges. Legislation is not abandoned, but a more effective use of legislation is sought together with a more participatory approach to policy making. The five key approaches are to: 1) Ensure the implementation of existing environmental legislation; 2) Integrate environmental concerns into all relevant policy areas (applying the Integration principle – MAH); 3) Work closely with business and consumers to identify solutions; 4) Ensure better and more accessible information on the environment for citizens; 5) Develop a more environmentally conscious attitude towards land use. The new Programme provides the environmental component of the Community’s forthcoming strategy for sustainable development. It continues to pursue some of the targets from the Fifth Environment Action Programme, which came to an end in 2000. But the new Sixth Environment Action Programme (…) goes further, adopting a more strategic approach. It calls for the active involvement and accountability of all sections of society in the search for innovative, workable and sustainable solutions to the environmental problems we face’.56

It is worth noticing, explicitly in the above quote, that ‘legislation is not abandoned’ and that the implementation of existing environmental legislation must be ensured. Perhaps the 6th EAP is an attempt to promote new instruments based on the view that conventional instruments should be retained. Or, in other words, a proposal aimed at a ‘flexible response’ to existing and forthcoming environmental problems, which will more frequently lead to the use of a mix of instruments in order to tackle one and the same environmental problem. Furthermore, the 6th EAP is the first EAP to be adopted under the co-decision procedure (as agreed upon in the Maastricht Treaty) and can be considered to have an even greater legal significance; maybe it is even legally binding, as Rittberger and Richardson proclaim.57 Certainly this could add some weight to the question of whether the present EAP is yet another instance in a series of merely ‘declaratory’ strategy documents or whether it presents a do-

54 55 56 57

Decision 2179/98, (1998) OJ L 275/1. Decision of 22.07.2002, (1998) OJ L 242. . B. Rittberger and J. Richardson, supra note 27, p. 582.

187

Good Environmental Governance in the EU

cument that by virtue of its legal stature requires that its (key) elements and proposals are made operational. In the following we will look at this operational level, along the lines of the institutional framework for introducing new environmental instruments. Firstly, we will look at a leading Community principle, that of proportionality, and, secondly, the interplay between the Community and its member states, mainly with a view to the implementation of EC legislation. In conclusion a few examples of the attempts to introduce new environmental instruments will be presented.

4.2.

Proportionality

According to the guidelines included in the Protocol to the Treaty of Amsterdam on the interpretation of the principle of proportionality, listed under Article 5 EC (‘Any action by the Community shall not go beyond what is necessary to achieve the objectives of this treaty’.),58 the Community should aim for measures that respect national legal provisions to the greatest extent and (that) leave the highest degree of discretion to the member states. Directives are preferred above regulations and framework directives are preferred above detailed legislation. The use of minimum standards (such as for emissions) is generally preferred, because it leaves room for member states to decide whether or not to apply stricter standards. Furthermore, non-binding measures, such as recommendations and voluntary codes of conduct, should be used where possible.59 Clearly in environmental law the Directive is the main operational regulatory device, with an increasing preference for using minimum standards. Framework directives are now in operation in the areas of water,60 air61 and waste.62 They allow for further regulations through ‘daughter directives’ in which we find emission limit values and/or quality standards or objectives (possibly linked to a standstill requirement).63 Establishing these daughter directives can be mandatory on the basis of a list of substances or other pollutants or of products or other recipients which are susceptible to environmental harm.64 Further regulation on the member state level is accommodated by explicitly allowing competence to maintain or introduce more stringent standards.65 58

59

60 61 62 63

64 65

188

Considered to be of great importance to the principles of good governance: White Paper, p. 10-11. See Council resolution on the drafting, implementation and enforcement of Community environmental law, (1997) OJ C 321/1. See Directive 2000/60, (2000) OJ L 327/1. Directive 96/62 on ambient air quality assessment and management, (1996) OJ L 296/55. Directive 91/156, (1991) OJ L 78/32. Primarily saying that if the factual quality is better than what the directive requires, the factual quality becomes the standard (see for instance Art. 11, § 6 of the Water framework directive). See Article 4 of the ‘Air framework directive’. See Articles 10(3) and 11(4) of the ‘Water framework directive’, and also Case C-138/98, Fornasar, in relation to Article 18 of the ‘Waste framework directive’. Furthermore, the ‘Waste framework-directive’ offers general rules on (categories of) waste but goes on (see Arts. 3-5) Æ

Michiel A. Heldeweg

Minimum harmonization, even when it is exhaustive, leaves room for member states to introduce more stringent standards and is therefore more readily used where the internal market is less affected, as in the case of (minimum standards for) the quality of water and air, as well as for flora and fauna.66 A directive that offers minimum rather than total harmonization67 is often recognized by the so-called ‘minimum harmonization clause’. This clause, however, is increasingly less used as member states can always have recourse to Article 176 EC and unilaterally introduce or maintain more stringent protective measures (if they are otherwise compatible with the Treaty) – although this matter is still subject to some debate.68 Often, regulatory discretion is given to member states on the basis of their obligation to adopt environmental (implementation) plans and programmes (possibly linked to certain priority pollutants or other types of priorities), setting out specific policy lines and further measures – as in the framework directives on waste (Art. 7), water (Art. 11) and air pollution.69 Meanwhile, plans and programmes also appear outside framework directives, as in the Habitats Directive (the so-called management plans for special conservation areas in Art. 6). These instruments also include room for participation either by the general public or interested parties, which also strengthens the communicative element in environmental policy making.

4.3.

Interplay and Implementation

In their analysis of new environmental policy instruments (nepis), Jordan et al. refer to five role models for European interplay, which are particularly relevant to policy transfer, especially transfer to ‘nepis’.70 Within the role model of the passive arena (1) innovation takes place without the involvement of Community institutions, but simply by the diffusion of information and knowledge between member states with similar environmental problems and similar environmental law systems. The emulation of the German Eco-labelling system is mentioned as a typical example of this type of transfer. In the facilitating arena (2) we find a transfer between member states and between member states and the Community institutions, but now the diffusion is enhanced by the EC as a network of policy actors and processes. The sharing of ideas through the EC channels, such as when Dutch officials showcased their environmental planning views in the wake of the 5th EAP, is an important driving-force for innovation. In the harmonization arena (3) the objective of a Single European mar-

66 67

68 69

70

to require member states to introduce (additional) measures on prevention, reduction and recovery of waste (and, although not strictly within a framework directive, Art. 14 of the Wild birds directive). J.H. Jans, supra note 29, p. 112. This is a type of harmonization that is only used if there is a strong link with the free movement of goods, so especially when product standards are involved (as with the amount of exhaust fumes and the amount of noise produced by cars). See J.H. Jans, supra note 29, p. 118. Article 7(3) of the ‘Air framework directive’, for instance, stipulates that member states are to take the necessary steps to ensure compliance with limit values and also to establish action plans to abate the risks of exceeding thresholds. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 556-558.

189

Good Environmental Governance in the EU

ket (SEM) is the determining factor behind innovative policy transfer. The effects of member states’ regulations on the SEM, as in the case of the German Packaging Waste Ordinance, can be an important motive to introduce new and Communitarian instruments and thus avoid (further) distortions. EC regulation represents a governance structure as a competitive arena (4) in which member states ‘compete for economic advantage and try to limit their regulatory adjustments costs’. Member states may want to remain ahead of EC regulation and influence both the EC environmental agenda and other member states in favour of adopting legislation which is similar to their own. The EMAS Directive (discussed below) offers the example of Great Britain and other member states promoting the adaptation of the ‘British scheme’ that was already in place in their jurisdictions. Finally, then, in the role model of the independent actor (5) we find the Community institutions, mainly the Commission, that adopt an entrepreneurial attitude in employing new initiatives either through the official decision making procedures, as in emissions trading and energy taxation, or entering into voluntary agreements, as is the case with industry concerning fuel economy. It is particularly interesting to focus on the harmonization arena and to ask what room is left within that context for member states that whish to use new policy instruments as a means of implementing Community legislation. Considering the approach suggested in the previous section (§ 4.2), directives, especially framework directives, can explicitly provide room for member states’ regulatory initiatives. Within the boundaries of implementing EC environmental law, however, the option of co- or even self-regulation seems to be excluded by the requirements of Article 249 EC. In other words, the type of ‘horizontal’ legislation that the White Paper proposes is not an option for member states, unless either the EC so obliges, or a member state has recourse to Article 176 EC. A first possibility would have been to implement a directive by referring to technical standards that are being produced by or in conjunction with the industry itself – like the ISO and CEN standards. Thus the ‘target groups’ themselves could be more strongly committed to the regulatory process. The problem here is that these types of technical standards are not in themselves binding and often are proposed merely as guidelines for ‘good environmental practice’; so it is up to whoever so wishes to apply them. From the case law of the Court of Justice we may conclude that this mode of implementation is only acceptable if the use of these standards is explicitly prescribed in legislation that is binding, because only then can citizens exert their rights.71 Similarly the idea of implementation by environmental agreements would more closely involve major stakeholders. However, these types of agreements are arrived at voluntarily, between certain parties (most often administrative branches of government and sectors of industry), entailing that certain objectives should be met (or more often – only – aspired for) in relation to a certain activity, product or substance. These characteristics do not (sufficiently) match the transposition re71

190

See for instance Case 361/88, 1991, I-2567 and C-59/89, 1991, I-2607 (TA-Luft). J.H. Jans, supra note 29, p. 144-145.

Michiel A. Heldeweg

quirements of being legally binding (also on third parties) and of full implementation (derived from Art. 249 EC). Only if such an agreement would be referred to in binding legislation as being generally binding, could one imagine that this mode of transposition would be acceptable.72 Again, if the directive itself were to propagate this method of implementation it would be legally acceptable.73 Meanwhile in 1996 the Commission issued a recommendation concerning environmental agreements implementing Community directives – which was matched in 1997 by a Council Resolution on the same subject.74 The bottom line is that both institutions wish to promote the use of these agreements and, to match that aspiration, have laid down guidelines for the implementation of Community environmental directives by agreement. These guidelines consist of two sets of rules, one set of rules that should be complied with in all cases and one set of rules that should be complied with if appropriate. In the first – compulsory – list we find provisions on the enforcement, clarity and timeliness of objectives, publication, monitoring and reporting (to authorities and the general public), as well as openness (of the agreement to other possible parties). In the second list – on ‘appropriateness’ – we find clauses on ascertaining whether the aspired results are being reached, on the access of third parties to (in-company) information on the implementation of the agreement, and finally on sanctions. Together with Jans we may conclude that if these requirements are met, there is indeed little difference between transposition through environmental agreements or through legally binding (unilateral) legislation. In his view, Article 249 EC leaves little room for a more lenient approach to this matter – although, so far, we have no case law on the application of these guidelines.75 Meanwhile, jumping ahead to the independent actor profile, we find that the Commission itself has also taken up initiatives on voluntary agreements at the Community level. In this it has ‘rallied’ support in the 5th EAP and in some of the member states’ criticism of the EC’s interventionalist instruments.76 By late 2001, however, only some 12 voluntary agreements had been adopted, such as on fuel economy with European and – later – with Japanese and Korean car manufacturers. Questions have been raised as to aspects of legitimacy, legality and transparency; especially considering that the Council and the European Parliament are kept outside the negotiations and that there is no specific legal basis for entering into these types of agreements in the EC Treaty. From the Commission’s standpoint however, voluntary agreements offer an interesting means to pursue its own objectives be-

72 73

74

75 76

Case 215/83, 1985 1055; J.H. Jans, supra note 29, p. 146-147. Directive 93/76 (1993) OJ L 237/28. To limit carbon dioxide emissions by improving energy efficiency (SAVE), Article 1: ‘Programmes can include laws, regulations, economic and administrative instruments, information, education and voluntary agreements whose impact can be objectively assessed’. See also Case C-255/93 I-4949. Commission recommendation 96/733 (1996), OJ L 333/69 and Council Resolution of 7 October 1997, (1997) OJ C 321/6. The Commission also mentions European-wide agreements but is sceptic on that issue. J.H. Jans supra note 29, p. 148; Jans proposes even further requirements. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 566.

191

Good Environmental Governance in the EU

yond the reach of (increased) parliamentary powers.77 Recently, however, the Commission has issued a Communication containing a new framework proposal on Community-level voluntary agreements as a means of co-regulation and selfregulatory arrangement within legislative targets set by the EC.78 Finally, returning to the member states’ level, the harmonization arena has taken its toll on some voluntary agreements by simply replacing them by Community legislation. Examples are the End-of-life Vehicles Directive (effectively rendering Austrian and German schemes void)79 and the Packaging and Packaging Waste Directive (replacing an existing voluntary agreement in the Netherlands – although the directive itself has again been implemented through voluntary agreements!).80

4.4.

Exemplars

Meanwhile, against the backdrop of these limitations, we do indeed witness the introduction of less top-down regulations. A few examples are listed below.81 The Community regulations on Eco-labelling82 and Eco-management and auditing (EMAS)83 present a communicative type of regulation, in which, although these schemes are moulded in a directly binding format, participation takes place on a voluntary basis. The Eco-label award Regulation is based on the German example. The Commission, in an entrepreneurial role, deemed it necessary to protect the SEM against a proliferation of similar schemes.84 The regulation is aimed at promoting, for consumers, the option of purchasing products which are less harmful to the environment. By labelling, the consumer has more insight concerning the environmental benefits of that product. The label is attached to a product only if the environmental impact of a product is reduced in the course of its entire life cycle. A company can apply for the award of an eco-label to one (or more) of its products (Arts. 6-7) – again, this is a completely voluntary decision. Each member state has a national authority which is competent to judge whether or not a label can be awarded (Arts. 7 and 14). In deciding this authority is to apply the guidelines contained in the Regulation.85 Awarding an eco-label entails that this authority enters into an agreement with the applicant on matters concerning the use of the label (Art. 9).86 For the ecolabel scheme to become successful stakeholder support will be essential. The revi-

77 78

79 80 81

82 83 84 85 86

192

Ibidem. Environmental agreements at the Community level within the framework of the action plan on the simplification and improvement of the regulatory environment, COM(2002) 412 final. Directive 2000/53, (2000) OJ L 269/34. Directive 94/62, (1994) OJ L 365/10. As voluntary agreements have already been discussed in above, they are not included within these examples. Regulation 880/1992, (1992) OJ L 099 (amended). Regulation 761/2001, (2001) OJ L 114/1. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 569. In part delegated to the Commission. The Commission has issued a standard agreement: Decision 2000/729, (2000) OJ L 293/20.

Michiel A. Heldeweg

sion of the scheme in 200087 seems to have led to a somewhat greater acceptance (since 2001 the number of applications has risen by 150 percent).88 The EMAS regulation is concerned with the voluntary participation of industrial companies in an eco-management and audit scheme, designed to monitor and improve the environmental performance of a company and to offer information on the performance to the general public (Art. 1). A company’s application will only be granted when it adopts an environmental eco-management system that incorporates (continuously updated) standards included in or set on the basis of the regulation (Art. 3). If all the criteria are voluntarily met, a competent national authority will register the company. Being registered (Arts. 6-8) can be advantageous to companies mainly by virtue of a more favourable public image. Similarly, features of less top-down regulation can be found in sectoral (or vertical) legislation. In stimulating the use of agreements and economic incentives the Nitrate Directive,89 for instance, requires member states to establish a ‘code of good agricultural practice’ which can serve as a basis for entering into (voluntary) agreements with farmers. Directive 70/220 on air pollution caused by vehicles90 offers an interesting possibility of financial incentives for buying clean cars. Furthermore, Directive 99/94 on consumer information on fuel economy and CO2 emissions sets out to improve information to the public on car performances.91 A somewhat different innovative strand of regulations has been introduced in the field of tradable allowances.92 Regulation 2037/2000 on substances that deplete the ozone layer,93 implementing the Vienna Convention and Montreal protocol,94 contains a system of trade through licences to import or export controlled substances from other countries (which may or may not be parties to the Montreal protocol). More important, and certainly more innovative, is the Directive establishing a scheme for greenhouse gas emission allowance trading within the Community.95 This scheme precedes the obligations under the first commitment period of the Kyoto protocol (2008-2012) and aims to prepare the Community for allowances trading. The possibility of allowances trading has two important advantages: 1) emission reduction will take place where it is most cost-efficient to do so. This in itself does not reduce the total emissions, but it does improve collective efficiency, to the benefit of all the permit holders; 2) the use of a trading system will minimize distortions in competition. Furthermore, one may argue that trading systems will be a stimulus to developing less pollutant production techniques.96 87 88 89 90 91 92

93 94 95 96

Regulation 1980/2000, (2000) OJ L 237. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 570. Especially Article 4 of Directive 91/676, (1991) OJ L 375/1. (1970) OJ L l76/1, amended by Directive 94/12, (1994) OJ L 100. (2000) OJ L 12/16. See J. Scott, supra note 32 and E. Woerdman, Implementing the Kyoto Mechanisms: Political Barriers and Path Dependence, Ph.D. thesis at the University of Groningen (the Netherlands), Groningen, University Library Groningen, 2002. (2000) OJ L 244/1. (1988) OJ L 297/10 (Vienna Convention) and (1988) OJ L 299/21 (Montreal Protocol). Directive 2003/87 (2003) OJ L 275. See also J. Scott, supra note 32, p. 1002.

193

Good Environmental Governance in the EU

To these examples we can add the carbon-energy tax. The Commission took up the initiative to introduce such a tax scheme in response to the studies on and the use of environmental taxes in member states such as Denmark and the Netherlands and also because of fears, from other member states, of (distortions in the SEM and) competitive impacts caused by national tax schemes.97 Although there was a positive momentum for an EC initiative, member states’ sovereign(ty) interests in conjunction with the unanimity requirement within the Council, made it very difficult to arrive at an agreement. A 1997 proposal proved unconvincing, but finally, in 2003, a framework directive was adopted.98 Clearly, instruments of indirect and self-regulation are taken up at the member state level.99 In many countries we can find examples of new instruments, such as taxation,100 subsidies,101 tradable emission rights,102 gentlemen’s agreements103 and schemes for labelling, audits and management.104 Regardless of these examples, the previous enthusiasm over these types of arrangements has somewhat died down. Maybe initially the expectations were too optimistic. As was said concerning the 6th EAP, at this point in time the idea of completely moving away from direct regulation and replacing the top-down model by strictly horizontal instruments is no longer considered viable or desirable. A more eclectic approach has seen the light of day, in which with each problem an optimal mix of instruments is sought.105

4.5.

Summing Up

The objectives of sustainability and a high level of protection (Art. 2 EU Treaty, Arts. 2 and 174(1) EC Treaty) are ambitious yet operationally underdetermined. Much is to be gained but very little is ensured. What can effectively be achieved lies in the wake of the willingness of all concerned to consider environmental policy making as a joint venture. An important question is how the effectiveness of environmental legal policies can be improved in the context of the EC framework. How 97 98 99 100

101

102

103

104

105

194

A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 565-566. Directive 2003/96, (2003) OJ L 283/51. R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 570. See ECO, Product, Fuel and Green taxes in Austria, Denmark, Germany, Italy and the Netherlands; R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 17, p. 109, p. 219, p. 293 and p. 367. See the income tax system in Flanders (Belgium) and the German subsidies (in connection with agreements on reduction-targets); R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 54-55 and p. 220. These are difficult to find on a member state level. There certainly are (or have been) discussions on this matter, but no implementation – apart from tradable rights in the agricultural area. Like in Flanders (on waste policy), in Denmark (with a general legal basis in the Environmental Protection Act!) and in Germany (both on a private and public law basis), R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 52, 108 and 222. For instance in Flanders, Denmark, Ireland, Italy and Spain; R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 52-53, p. 103, p. 260-261, p. 293 and p. 428. See also B. Rittberger and J. Richardson, supra note 27, p. 603.

Michiel A. Heldeweg

much room can and indeed should be given to the implementation of Community legislation by private guidelines, environmental agreements and environmental management systems? Or, for that matter, what room should be left for autonomous legislation by member states? Given the focus of this contribution, the principle of effectiveness is especially relevant to the attempts to make more use of horizontal instruments (instead of topdown or vertical ones). On that note clearly the IPPC Directive (discussed under § 3.2) offers something of a disappointment. The main instruments in this Directive are permits and general emission standards. Although the Directive is geared towards creating more integration, it nevertheless does not satisfy the promises included in the preceding 5th EAP Programme. Possibly the more ‘balanced approach’ of the 6th EAP found its predecessor in the IPPC Directive. Having said this, we find that there are also many regulatory initiatives that do seem to fit with the EAP’s call for ‘partnerships’. The aforementioned EMAS and Eco-labelling regulations clearly signify this. Furthermore, we have seen that the concepts of framework directives (such as for water, air and waste), (interactive) planning and programming, using minimum instead of total harmonization, are clearly present. When we look at the initiatives on the member state level, we also find that there are many examples of regulatory initiatives within the realm of indirect and self-regulation, especially taxation, subsidies, environmental agreements (sometimes even on a statutory basis), environmental management schemes and voluntary codes of conduct (good practice).

5.

Accountability

Taking responsibility and explaining actions are the key elements of the principle of accountability. In the context of Environmental Law comments will be limited to two issues, mainly in view of what is still to be discussed under § 6 on openness and participation. The first issue to be commented upon (under § 5.1) is environmental principles, taking the viewpoint that it takes a substantive ‘benchmark’ before transgressors can be truly held to be accountable. The second issue for comment (under § 5.2) is internal EC decision making procedures in environmental law.

5.1.

Principles

The second paragraph of Article 174 EC presents a number of principles of European environmental policy: 1) a high level of protection; 2) the precautionary principle; 3) the prevention principle; 4) the source principle; 5) the polluter pays principle; 6) the safeguard clause. One could well argue that these principles offer standards for accountability, but one should be aware of two important aspects. First of all, these principles meet a general characteristic of principles in that they are intrinsically vague. This means that it takes case law and, possibly, further guidelines to determine their more precise content and to be able to truly apply them as benchmarks. Secondly, the question remains whether and, if so, to what extent courts are willing to use these principles as legal criteria. As such we should distinguish between direct

195

Good Environmental Governance in the EU

use, such as rules of conduct, and indirect use, such as guidelines for the interpretation of other substantive or procedural regulations (take, for instance, the relationship between the burden of proof and the precautionary principle). When applied directly we should consider that when discretionary competences lie at the heart of the legal dispute, this may give rise to a more marginal test as to whether certain principles have been adhered to. The principles of ‘a high level of protection’, ‘precaution’ and ‘prevention’, offer interesting examples of the above. The principle of attaining a high level of protection is typically a principle that entails so much discretion that it is questionable whether it could indeed be considered a legal principle – or rather a political objective. Apart from the fact that the section includes the words ‘seek to achieve a high level…’, a ‘high level of protection’ is not to say ‘the highest level of protection’; there is still room for weighing interests, amongst which are possibly the diversity of situations in the various regions of the Community. Amongst the institutions of the EC, however, the principle offers an argumentative basis in the political debate.106 Secondly, the precautionary principle is relevant as it requires proper account to be taken of available scientific and technical data (as required by Art. 174, § 3 EC) and it also determines that even indicative or tentative scientific data may suffice as a basis for taking protective measures.107 Absolute scientific certainty (even if it were to exist) is not a prerequisite for introducing restrictive measures: ‘in dubio pro natura’. The precautionary principle also applies to the IPPC Directive in determining the ‘best available techniques’, when considering the possible risks involved.108 We also find the precautionary principle being applied in examples of secondary legislation, especially in aiding the interpretation of relevant provisions.109 Thirdly, the prevention principle was an important subject in the 3rd EAP.110 It was stressed in this programme that the improvement of information and knowledge, as well as the diffusion thereof amongst decision-makers, interested parties and the public as a whole(!) is of the utmost importance. All relevant information should be considered in the earliest possible stage in the decision making process. The Directive on the freedom of access to information on the environment,111 which will be discussed below, is an important outcome of this line of reasoning. The same can be said of the Directive on Environmental Impact Assessment (EIA – also to be discussed below).112 The preventive principle contributed to the understanding that, alongside to direct measures to further the environmental cause, Article 174 EC also underpins indirect measures, such as freedom of access to information, the shaping of the environmental decision making process (as in the EIA and IPPC Directives),

106 107 108 109 110 111 112

196

J.H. Jans, supra note 29, p. 32. See J.H. Jans, supra note 29, p. 33-34. See Annex IV of Directive 96/61, (1996) OJ L 257/26. For instance, case C-180/96, United Kingdom v. Commission [1998] ECR I-2265. (1983) OJ C 46/1. Directive 90/313, (1990) OJ L 158/56. Directive 85/337, (1985) OJ L 175/40 (amended).

Michiel A. Heldeweg

and EMAS and Eco-labelling regulations. As I will go on to show below (in § 6) this acknowledgement is an important step towards good environmental governance. It should be well understood that the environmental principles are only directly binding on Community institutions and that these often involve considerable discretion.113 Again, though, the courts may use these principles as guidelines in interpreting secondary Community legislation and, sometimes, in judging specific member states’ autonomous measures.114 Especially in member states with General Environmental Law Codes (such as in Denmark, Finland, Ireland and the Netherlands), or drafts to that end (such as in Germany and Italy), we find environmental principles being codified (or proposals to do so). In Spain a reference to such principles is even included in the Constitution, with an explicit link to the principles of Article 174 EC. In most cases there is a strong similarity between the EC principles and the ‘state principles’. Generally speaking, these state principles are considered to be mere guidelines for policy making, rather than legal principles of a kind similar to principles of natural justice. It is expected, though, that these principles will have an indirect legal effect such, as for instance, through the process of interpreting existing regulations.115 Whether or not environmental principles should or should not extend to a right to a clean or healthy environment is a matter taken up in § 7.

5.2.

Procedures

From a legal point of view procedures represent the fabric of the competences and responsibilities of the institutions involved. Let us then turn to these procedures first. In the Treaty of Maastricht (1993) it was decided that decisions under the Title (then VII) on the Environment116 could be taken by a qualified majority. An exception – still – applies to a number of specific policy areas as mentioned under the second paragraph of Article 175 EC, amongst which are fiscal provisions, town and country planning measures and the management of water resources, as well as measures affecting the member state’s choice between energy sources. In those cases the Council can only decide unanimously, unless it is unanimously decided by the Council that on a certain matter within the scope of these exempted areas a decision will be taken with a qualified majority. Given the close relationship between environmental protection and improvement, on the one hand, and town and country planning, on the other, this can be considered as a barrier to integrated and comprehensive policy making.117 Apart 113 114

115 116 117

J.H. Jans, supra note 29, p. 21-22; G. van Calster, supra note 29, p. 477. On the binding effect for member states, see G. Winter, ‘Environmental Principles and Community Law’, in J.H. Jans (ed.), The European Convention and the Future of European Environmental Law, Proceedings of the Avosetta Group of European Environmental Lawyers, Groningen, Europa Law Publishing, 2003, p. 3-25. Compare as an example also the Walloon Waste case, Case C-2/90 Commission v. Belgium [1992] ECR I-4431. R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 567-568. At that moment Article 130R-T EC. As dealt with under Coherence; § 3.

197

Good Environmental Governance in the EU

from the question whether the Community has the power to pursue a solitary town and country planning policy, it will be clear that in many cases environmental policies will have a certain effect in this type of planning, such as in protecting flora and fauna, or in the use of zoning for reasons of air pollution or the hazard of major accidents.118 This also applies to environmental impact assessment, where some decisions for which an assessment is to be made concern town or country planning.119 In practice, however, in the latter two cases the majority-rule procedure was indeed applied.120 As for introducing environmental taxes, as stated under § 4.4, the unanimity rule and sovereign(ty) considerations clearly pose an obstacle for the introduction of new, economic environmental instruments of this type. In the 1999 Treaty of Amsterdam it was decided that (almost) all of the EC environmental legislation is to be prepared in accordance with the co-decision procedure (of Art. 251 EC), thus ensuring a veto for the European Parliament (EP).121 This procedure also applies to the setting of EAPs, as Article 175(3) EC stipulates. We have to consider that co-decision does not necessarily lead to more stringent environmental policies, but it will certainly strengthen the legitimacy of these policies. The position of the EP will strengthen and with that the parliament will also be held more accountable by civil society. According to some, the applicability of Article 175(3) EC on adopting EAPs makes these (future) EAPs legally binding.122 On the issue of accountability, however, we should be well aware that many environmental standards are set in what is called the ‘comitology procedure’. This applies especially to technical standards for which the regulatory procedure is ‘delegated’. The legal basis for this practice can be found in Article 202, third indent EC Treaty. The Council has imposed certain requirements in the exercise of this competence. It has done so in a separate Comitology Decision,123 laying out the basic rules and principles for this procedure (or in fact procedures – as there are four types). The Council can set more specific requirements in the specific case where powers to implement are conferred on the Commission.124 Presently the general rules on decision making in the Comitology procedure(s) are under revision.125 The comitology procedure is ‘activated’ through a clause in a specific directive. On the basis of that clause a representative of the Commission submits a draft proposal on certain technical standards to a committee. The committee subsequently offers an 118 119

120 121 122 123

124 125

198

Seveso-II Directive 96/82, (1997) OJ L 10/13. See annex II (under 10) to directive 85/337 as amended by Directive 97/11, (1997) OJ L 073/5. Also (Art. 3 under 2a of) Directive 01/42, (2001) OJ L 197/30. J.H. Jans, supra note 29, p. 46-47. G. van Calster, supra note 29, p. 9; J.H. Jans, supra note 29, p. 9. See the considerations under § 4.1. Second Comitology Decision 1999/468, (1999) OJ L 184/23 (repealing the First Comitology Decision 1987/373, (1987) OJ L 197. See also Case C-378/00 Commission v. Council and EP. See, amongst other sources: Report from the Commission, on the working of committees in 2002, COM(2003) 530 final. See also J.H. Jans, ‘EU Environmental Policy and the Civil Society’, in J.H. Jans (ed.), The European Convention and the Future of European Environmental Law, Proceedings of the Avosetta Group of European Environmental Lawyers, Groningen, Europa Law Publishing, 2003, p. 55-66, especially p. 61-62.

Michiel A. Heldeweg

opinion. If the final proposal is in accordance with the committee’s opinion then the Commission can adopt the standards; if there is discrepancy the Commission sends the proposal to the Council which can take a final decision on the basis of majority voting, within a certain time-limit (if this limit is exceeded the Commission decides). An example of this comitology procedure can be found in the framework directive on waste.126

5.3.

Summing Up

Environmental principles can be regarded as ‘benchmarks’ for accountability in environmental policy making. Mainly through the role of the Courts, even though the legal test will often be a marginal one, this type of benchmarking will play an increasingly more important role. Gradually, environmental principles are also being introduced on the member state level, by and large consistent with EC principles. It still remains to be seen whether these ‘stately principles’ will become relevant to legal accountability, but the first step seems to have been taken. Voting by qualified majority and applying the co-decision procedure are important tools for increased accountability – especially in view of the role of the EP.127 Accountability can, however, be in question when ‘comitology’ creeps in. In part this will be unavoidable (especially with technical standards for products), but it does increase the possibility of bureaucratic policy making (and shutting out civil society). The alternative of leaving further regulation to lower public authorities or to voluntary schemes should be taken firmly into consideration. One should also consider that in leaving (more) room for member states to maintain and introduce more stringent measures and to apply instruments of a more ‘horizontal and coregulatory’ nature their involvement can be strengthened and thus their accountability (in the sense of legitimacy). This would also match the fact that the 6th EAP clearly stipulates that accountability is a principle which is relevant to all sections of the Community, that is to say, both on a supranational and on the member state level. Accountability also implies taking responsibility – making use of the possibilities to enter into more horizontal forms of regulation.

6.

Openness and Participation

As stated above, in the light of the prevention principle (under 5a), the objectives as listed in the first paragraph of Article 174 EC not only allow for direct measures to further the environmental cause, but also for indirect measures such as the freedom of access to information,128 the shaping of the environmental decision making-

126

127

128

See Article 1(a) and Article 18 of Directive 91/156, (1991) OJ L 78/32 (amendment of 75/442, (1975) OJ L 194/47). To say that this will enhance the legitimacy of the outcome is still somewhat optimistic in my view, but this procedure is far preferable to other existing ones. Supra, n. 3.

199

Good Environmental Governance in the EU

process, as in the case of the EIA and IPPC Directives,129 as well as in the case of the regulation on Eco-audits and on EEA.130 Both in the area of openness and participation, clearly the importance of ensuring proper decision making (especially concerning fact-finding and assessment) as well as the general availability of environmental information, and also public participation throughout the policy chain, has been recognized as a major legal cornerstone of environmental law in Europe. Not only as a means to further the legitimacy of vertical legislation (by ensuring better involvement),131 but also as a means of making citizens and civil institutions more sensitive to environmental processes. Thus the internalization of environmental effects in behavioural patterns has a better opportunity, especially as the diffusion of information is supported by the new types of environmental instruments (as discussed above).132 The Arhus Convention133 is an important UN document, to which the Community is a signatory that underpins three basic legal requirements in the area of openness and participation: a) access to environmental information; b) public participation; c) access to judicial review in environmental cases. Each of these requirements, also referred to as the three ‘Arhus pillars’, has given rise to legislation or proposals thereon. The main examples of these are listed below.

6.1.

Impact Assessment

Historically, one of the first initiatives to further access to environmental information is the Directive on Environmental Impact Assessment. The first EIA Directive was implemented in 1985 and since then several amendments have followed.134 The EIA Directive requires the member states to introduce a procedure in their national legal system so that projects that are likely to have a significant effect on the environment are subjected to an assessment of these effects before consent is given for the project. The impact assessment is to include at least the following: a description of the project and of measures envisaged to avoid, reduce and remedy environmental effects; data required to identify and assess the main effects; an outline of the main alternatives to the project and a non-technical summary for the public. Openness and participation are cornerstones of the EIA Directives. Not only on an intramember state level but, in the light of the Espoo Convention on transboundary environmental effects,135 also for authorities and the general public in other member 129 130 131 132

133

134

135

200

Supra, n. 4 and n. 5. (1993) OJ L 168/1 and (1990) OJ L 120/1. J. Scott, supra note 32, p. 999. See also D.J. Fiorino, ‘Rethinking environmental regulation: perspectives on law and governance’, 23 Harvard Environmental Law Review, 1999, p. 441-469, especially p. 465-466. Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, signed by the EC on the 25th of June 1998; COM(1998) 344 final. Directive 85/337, (1985) OJ L 175/40, with a major amendment by Directive 97/11, (1997) OJ L 73/14. A more recent amendment was made in view of improving access to justice: Directive 2003/35, (2003) OJ L 156. Bulletin EC 1/2-1991 (26 February 1991).

Michiel A. Heldeweg

states; they have an equal right to be informed and to (have a sufficient opportunity to) participate. Earlier, reference was made to the Directive on strategic environmental assessment (SEA) which requires an impact assessment of plans or programmes likely to have significant effects on the environment (Arts. 2-4). This assessment is to take place during the preparation of these plans or programmes and should result in a report which studies the environmental effects of these proposals and ‘reasonable alternatives’ thereto (Art. 5). The Directive also provides for continued monitoring of the implementation of these plans or programmes in order to, if necessary, undertake remedial action (Arts. 10 and 12).

6.2.

Public Access to Environmental Information

Openness was also the key element in the 1990 Directive on freedom to access information on the environment.136 It set out to ensure the freedom of access for any natural or legal person, even without having to prove an interest, to information on the environment held by any public authority, also in a transboundary respect – given the non-discrimination principle of Article 12 EC and the fact that the Directive aimed to guarantee free access to any person ‘throughout the Community’.137 In 2003 this Directive was repealed and replaced by a new directive on Public access to environmental information.138 This replacement was considered necessary in order to clarify and expand the definitions of ‘environmental information’ and ‘public authorities’ (which, in view of Art. 6 EC, does not only include authorities with explicit environmental competences), and also to emphasize that the directive purports to establish a right to information and that a refusal to disclose information only exists in specific and clearly defined cases. Article 2 of this Directive offers a broad description of what may be considered to be ‘information relating to the environment’: information on the state of the elements of the environment; factors (possibly) affecting these elements, measures (possibly) affecting these elements; an analysis of these measures; reports on the implementation of environmental legislation; the state of human health and safety, the conditions of human life; cultural sites and built structures in as much they are or may be affected by these elements or these factors or measures. Only in a limited number of cases can access be denied (Art. 4), such as in the case of information that affects national defence or public security (§ 2b), which are matters sub judice (§ 2c) and information which is confidential for (overriding) commercial or industrial reasons (§ 2d). From the wording of Article 4(1): the ‘member states may provide for a request to be refused if [….]’ it follows that member states may decide to pursue a more restrictive policy on the non-disclosure of environmental information. With respect to enforcing the Directive, its Article 6 states that any applicant (that is to say any natural or legal person) whose request to access certain information has 136 137 138

Directive 90/313, (1990) OJ L 158/56 (repealed!). J.H. Jans, supra note 29, p. 333. See n. 3.

201

Good Environmental Governance in the EU

been refused, has a right to judicial or administrative review by an independent and impartial authority under the national legal system. Furthermore, one should note that the Directive also has stipulations, in Article 7, concerning the duty to actively provide information to the general public, by means such as a periodic publication of ‘the state of the environment’. Apart from this general – horizontal – Directive on the right of access to information, there are many other Directives (like on packaging and packaging waste, on major accidents and on habitats)139 and also regulations (like on eco-labelling and on the import and export of dangerous chemicals)140 that contain information requirements.

6.3.

European Environment Agency

Taking the requirements from first pillar of the Aarhus Convention one step further, the Regulation on the establishment of the European Environment Agency (EEA) tasks the EEA with providing the Community and its member states with environmental information which provides a basis for further environmental policy making. The information emanating from the EEA can also be brought to the attention of the general public. The information is not limited to the present ‘state of the environment’ but also concerns scientific research into the foreseeable future. The EEA is to give priority to environmental matters of a transboundary, pluri-national and global character. The agency has no competence to pursue its own inspections in the member states nor does it have any regulatory capacities.

6.4.

IPPC; Participation, Access to Justice and NGOs

Bridging openness, participation and judicial review, the Directive on Integrated Pollution Prevention and Control (IPPC) contains provisions on each of these aspects – especially after the adoption of the (amendments by the) Directive on Public Participation etc.141 Articles 15 to 17 (now) contain provisions on (improved) access to information and public participation, as well as (newly introduced) provisions on access to justice. The Directive on Public Participation also purports to enhance participation in a more general sense, at least in the context of plans and programmes relating to the environment (following up on Art. 6 of the Aarhus Convention). Private persons, but also associations, organizations and groups, in particular NGOs promoting environmental protection, have the right to an early and effective opportunity to participate in a decision making procedure on the preparation, modification or review 139

140

141

202

Packaging, Article 6, section 4, see n. 68; Major Accidents, Article 13 of Directive 96/82, (1997) OJ L 010/13; habitats, Article 17 of Directive 92/43, (1992) OJ L 206/7. Labelling, Articles 5, 8 and 10, and annex IV of Regulation 1980/2000, (2000) OJ L 237/1; Import/export, Articles 4 and 9 of Regulation 2455/92, (1992) OJ L 251/13 (amended). Directive 2003/35 on Public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice directives 85/337 and 96/61; (2003) OJ L 156.

Michiel A. Heldeweg

of certain plans and programmes (listed in a separate Annex) and the public is entitled to express comments and opinions, when all options are still open before decisions on the plans and programmes are made – Article 2(3). The Directive also (in Art. 3) amends the EIA Directive in view of the provisions on access to information, participation, but also on judicial review. The aspect of access to justice is the main subject of a Commission proposal for a directive on access to justice in environmental matters, aimed at implementing the third pillar of the Aarhus Convention.142 Although this proposal is based on Article 175 EC the avoidance of disparities is also an important motive: enforcement of Environmental Law depends on many factors; lack of enforcement is too frequently due to the limitations in the legal standing of persons directly affected as well as of representative associations seeking to protect the environment.143 The proposal focuses on the legal acts of public authorities under or obliged by Environmental Law.144 According to Article 6 natural or legal persons145 can apply for an internal review by a public authority to reconsider such an act (or the omission thereof). If this authority fails to meet the time-limits for deciding upon such a request or the applicant considers the decision taken not to be in compliance with environmental law, he or she is entitled to institute ‘environmental proceedings’ (Art. 7). These can take the form of administrative or judicial review procedures, both on procedural and substantive issues, before an independent and impartial body established by law, in order to challenge these acts or omissions on the ground of a breach of environmental law. As for legal standing, Article 4 points to the need for a ‘sufficient interest’, or impairment of a right, where the administrative procedural law (of the member state involved) requires this as a precondition. Especially interesting are the provisions for so-called ‘qualified entities’. In Article 2(1-c) these are defined as associations, organizations and groups which have the objective of protecting the environment and are recognized as such. Article 8 lists the criteria for the recognition of international, national, regional or local associations, organizations or groups. Such an entity: a) must be independent, nonprofit-making legal persons with a statutory objective to protect the environment; b) must have an organizational structure which enables it to ensure the adequate pursuit of its statutory objective; c) must be legally constituted and must have worked actively for environmental protection in conformity with its statute for a period set by the member state in question (not in excess of 3 years); d) must have its annual statement of accounts certified by a registered auditor. Finally, Article 9 obliges member states to establish a procedure for recognition, either on a ‘case to case basis’ or a ‘recognition in advance’ procedure. A qualified entity has legal standing in environmental proceedings without having to meet the requirements of Article 4,

142 143 144

145

COM(2003) 624 final. Ibidem, General considerations, § 1.1. A term defined in Article 2(1-g). The possibility of judicial action taken against private persons is also addressed; see Article 3 – connecting the proposal to Article 9(3) of the Aarhus Convention. Article 2(1-b).

203

Good Environmental Governance in the EU

when the matter is covered by the statutory activities and the review falls within the geographical area of the activities of the entity.146 Ensuring legal standing for NGOs can be regarded as an ‘ultimate safeguard’. Ultimate in the sense that it is the general view, also shared by the Commission,147 that participation in the decision making process by these types of organizations is of the utmost importance to civil society and the democratic process.148 For that reason the Commission is involved in funding Environmental NGOs (also known as ENGOs) for environmental purposes.149 A special website lists each year’s contributions for which ENGOs have applied.150 Meanwhile the eight largest ENGOs in the EU, also known as the ‘Green G8’, have become important players in European environmental policy making.151

6.5.

The Member States Perspective

Under § 4.2 we observed that under the framework directives such as on waste, water and air pollution the regulatory discretion of member states is included in their obligation to establish environmental (implementation) plans and programmes. Similar plans and programmes appear outside framework directives, such as in the Habitats Directive (for special conservation areas). These plans and programmes often include room for participation either by the general public or particular interested parties. Thus they can add to the element of a more communicative basis for environmental policy making. Public participation is most clearly present in the environmental permit systems of the member states. This coincides with the objectives of the IPPC Directive, but also with the Aarhus Convention, which is already being implemented in the member states. Some member states have gone as far as to allow each member of the public to participate, regardless of his or her own private interest (the actio popularis), even though this is not required under the Aarhus Convention.152 In some countries public participation extends to other instruments, such as the plans and programmes mentioned earlier,153 but also to procedures in which an EIA is to be 146 147

148 149

150 151

152 153

204

See Article 5(1). COM(2000) 11 final, Discussion paper: The Commission and Non-Governmental Organizations: Building a stronger partnership. See also J.H. Jans, supra note 114, p. 55. See J. Scott, supra note 32, p. 1000. See also: (dd. 24/02/2003); on the basis of Decision No. 466/2002/EC of the European Parliament and of the Council of 1 March 2002 laying down a Community action programme promoting non-governmental organizations primarily active in the field of environmental protection. See . See J. Scott, supra note 32, p. 999. See also and for active participation: . R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 573. See, for instance, Austria, in R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 16.

Michiel A. Heldeweg

made. The EIA has clearly become an important policy instrument in the member states.154 As far as the implementation of the provisions on judicial review in the Aarhus Convention is concerned, one can conclude that most member states have administrative courts that deal with administrative decisions and in some member states appeals against these types of decisions must be brought before the ordinary courts (like in Ireland, the UK and Denmark).155 By and large review takes place in conformity with Article 6 ECHR. It is also important to notice that, increasingly, opportunities for NGOs to appeal in a court of law are being enlarged, especially with regard to the general environmental interest.156

6.6.

Summing Up

Considering the Directives on Environmental Impact Assessment (EIA), on Strategic Environmental Assessment (SEA), on Integrated Pollution Prevention and Control (IPPC), on Public access to environmental information, on Public participation, the proposal on Access to justice in environmental matters, as well as the regulations on the EEA, on Eco-labelling and on Eco-management (EMAS), we can conclude that the good governance principles of openness and participation have clearly been brought to the foreground of environmental policy making. This observation is supported by many examples of clauses and provisions on openness and participation in sectoral (or vertical) directives and regulations (such as on habitats and on packaging, to name just two examples). Both principles are also clearly present in the environmental law systems of member states. Although there are many practical differences – for instance as to who has sufficient standing to actually participate in a procedure; nevertheless the basic notions from the Aarhus Convention are generally adhered to in national environmental law. Finally, according to the 5th EAP, openness and participation underpin the notion of environmental protection as a ‘shared responsibility’. Furthermore, the 6th EAP states that to ‘Work closely with business and consumers to identify solutions’ and to ‘Ensure better and more accessible information on the environment for citizens’ remain the focal points in the strategic view on environmental policy making.

7.

A Governance Shift under the New Constitution?

The White Paper’s principles of good governance, as viewed in the ‘World Bank’ perspective on governance, match both the cornerstones of environmental legal policy making and the present-day legal policy practice in environmental law in Euro-

154 155

156

Clearly also by virtue of the EC EIA directive (discussed above). R.J.G.H. Seerden, M.A. Heldeweg and K. Deketelaere (eds.), supra note 8, p. 577 and: Germany, p. 238; the Netherlands, p. 379; the UK, p. 462-463. Ibidem, p. 581 and: France, p. 192; Italy, p. 309; the Netherlands, 387-388; Spain, 435; the UK, p. 462-463. J. Scott, supra note 32, p. 1001.

205

Good Environmental Governance in the EU

pe. The conviction that environmental protection is a shared responsibility and that environmental policies require a ‘joint venture’ between government and civil society is sufficiently rooted in the basic legal notions of environmental law to allow for a fruitful, reciprocal relationship.

7.1.

Following or Setting a Trend?

So, looking back at the last ten years of environmental policy making (from the 5th EAP onwards), we find principles of good governance implicitly present in environmental legal policy making in some form or another, even before the White Paper was presented. Rather than following a trend it seems that environmental legal policy making has, probably amongst other sectors, been a trend-setter; both in general strategies and in actual legal policy implementation. That is not to say that the presentation of principles of good governance by the Commission in the White Paper is just ‘old news’ as far as the environmental sector is concerned. The White Paper lists the principles with respect to its objective of a closer relationship between civil society and public authorities on all levels of and within the Community. Surely this confirms and indeed underpins the present strategic view on environmental legal policy making. Thus the White Paper can serve to strengthen the attempts at a greater use of ‘horizontal instruments’, that is of closer co-operation with civil society and of instruments that call for a greater internalization of the environmental dimensions for all kinds of decisions, both within the public and the private realm. Having said this, we may ask ourselves whether the notion of good environmental governance, as it stands today, offers a true shift in governance. When the Commission states that it aims to ‘refocus the institutions’, this is to be understood as a ‘Better use of powers [...]’, which is to ‘connect the EU more closely to its citizens and lead to more effective policies’.157 This agenda can be pursued without any fundamental institutional changes, especially when we merely look at openness and participation. On the other hand, when we focus on the element of ‘more effective policies’, the White Paper can support the sectoral pressure for new environmental policy instruments, and indeed for a true governance shift.

7.2.

Barriers to a Shift in Governance

Such a shift, however, is hampered by a number of factors, especially by the institutional demands of a Single European Market (SEM) and respect for member state sovereignty. As to the sovereignty issue, especially when financial instruments are involved, this can be a sensitive point. In the earlier mentioned example of environmental taxation (in § 4.4) this is illustrated as Article 175(2) EC requires a unanimous decision in the Council in a number of issues, amongst which is taxation. For this type of economic instrument to be used more frequently, the decision making

157

206

White Paper, p. 33 and p. 8.

Michiel A. Heldeweg

process is an important barrier.158 Naturally this would not be the case if member states would more readily agree to use majority rule. So far that does not seem to be the case, as is also illustrated by the fact that under the draft proposal for a European Constitution the same unanimity rule applies – much to the regret of, for instance, the Green G8.159 Rittberger and Richardson160 also show how, especially – but not only – when the unanimity rule applies, the Commission is forced to apply a strategy in which much less ambitious proposals are brought forward than the Commission itself would probably like (considering what the Commission has presented on new environmental policy instruments in the 5th and 6th EAPs). Interestingly enough the issue of sovereignty can also operate as an incentive to harmonization in environmental law. The Carbon energy tax, mentioned under § 4.4, is also an example of this, as the Commission’s initiative was (also) motivated by fears from some member states of competitive disadvantages caused by national tax schemes.161 Again, though, to take the initiative is one thing, but to reach agreement was – by the same token of sovereignty – quite another. The question which remains is whether in the final analysis the unified tax system offers as much environmental promise as national schemes did or would have done. The same question arises in view of voluntary agreements. In Germany (EMAS) and in the Netherlands (packaging) voluntary schemes were in operation but were pushed aside by harmonization motivated (mainly) by competitive fears.162 Finally, as we saw, member states’ sovereignty offers little opportunity to introduce new environmental policy instruments as a means of implementing of directives, unless the directive allows for such discretion.163 On the issue of the SEM, again we find major barriers to introducing new environmental policy instruments. Prior to the 1987 Single European Act, though, striving for an SEM was indeed an important drive for environmental legislation. Clearly the use of command and control legislation prevailed, however, as this was best suited to economic harmonization.164 Around 1992 the economic recession that hit Europe together with the battle for greater European legitimacy (in the aftermath of the Maastricht Treaty) urged the Commission to seek new instruments, especially in the environmental policy area, that could improve policy efficiency, implementation and greater cost-effectiveness.165 The general belief seemed to be that in order to cope with the needs of greater economic growth (in an SEM), the old environmental policy instruments would not suffice166 and only through shared responsibility,

158 159

160 161 162 163 164 165 166

A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 565-566 and p. 571. See proposal no. 3 in their Statement on the Future of Europe (on the 29th of April 2002) . B. Rittberger and J. Richardson, supra note 27, p. 597-601. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 565-566 and p. 671-572. Ibidem, p. 568 and p. 571. See § 4.3. A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 560, p. 562 and p. 563-564. Ibidem, p. 564. B. Rittberger and J. Richardson, supra note 27, p. 577-578.

207

Good Environmental Governance in the EU

with greater stakeholder involvement, could economic and environmental needs be united. Having said this, the negative reflex action to the SEM ideal accentuates the fear of economic distortions when competitive advantages cause disparities between member states. The prior illustrations of member states’ taxation schemes, Eco-labels and voluntary agreements with target groups present clear examples of where the Commission took on an entrepreneurial role to protect the SEM.167 The introduction of the IPPC Directive presents an interesting case in view of the SEM argument. According to this Directive both quality and emission standards are to be set on the Community level, in order to be applied on the member state level, mainly by the process of permitting member states to set certain standards. However, in the explanatory memorandum to the original Commission proposal for the IPPC Directive, the leading concept was that, on the one hand, there would be harmonized quality standards (on the Community level) and, on the other, there would be differentiated emission limit values (within the member states). In a later stage of the preparations this proposition was abandoned and the directive now contains the following provision in Article 18: ‘Acting on a proposal from the Commission, the Council will set emission limit values, in accordance with the procedures laid down in the Treaty, for [...] categories of installations listed in Annex I […] and the polluting substances referred to in Annex III, for which the need for Community action has been identified’. Although the possibility of setting limit values by member states has not been entirely ruled out, clearly the directive sets a different tune from that advocated in the memorandum. This centralized allocation of regulatory power seems to be the result of a fear of distorting the internal market through the introduction of differentiated emission values.168 With Faure and Lefevere169 one may wonder why the IPPC framework has not capitalized on the notion of a higher allocative efficiency through leaving the competences for emission limit values to the member states. Leaving room for differentiated emission limit values offers an opportunity for a clustering of preferences and thus for competition between regulatory systems (and their legislative authorities).170 If combined with the strict enforcement of quality standards set on the Community level, this approach can create efficiency without there being a fear of a

167

168

169 170

208

A. Jordan, R. Wurzel, A.R. Zito and L. Brückner, supra note 27, p. 572, conclude that the protection of the SEM continues to play a very important role in today’s environmental legislation. Compare the analysis as presented by: M.G. Faure and J.G.J. Lefevere, ‘Integrated Pollution Prevention and Control: an Economic Appraisal’, in Ch. Backes and G. Betlem (eds.), Integrated Pollution Prevention and Control, The EC Directive from a Comparative Legal and Economic Perspective, The Hague, London, Boston, Kluwer Law International, 1998, p. 93-120. Ibidem. R. van den Bergh, ‘The subsidiarity Principle in European Community Law: Some Insights from Law and Economics’, Maastricht Journal of European and Comparative Law, 1994, p. 337366. Also C. Tiebout, ‘A pure Theory of Local Expenditures’, Journal of Political Economy, 1956, p. 416.

Michiel A. Heldeweg

‘race to the bottom’.171 Clearly this approach places the ideal of ‘a Europe for citizens’, guaranteeing a similar environmental quality for all Europeans, before the objective of creating equal market conditions for all. In the proposed alternative these market conditions can differ due to regional differences in the costs that the emission values bring about. Some of these limit values will be higher (and thus more costly) because the regional circumstances require more stringent limits to comply with the harmonized quality standards. In other cases the emission values will be higher (and more costly) because the member state concerned has, by its own choice (!), decided to aim for an even higher quality standard (than the harmonized minimum).172 Such a practice, however, is only acceptable if our definition of a SEM is less absolute. Finally, in terms of barriers to new environmental policy instruments, the rapid ‘change of mind’ in the IPPC case raises questions as to the ‘level playing field’ with regard to participation on the Community level. In their study Faure and Lefevere wonder if this change has been brought about by pressure from industry, wanting emission standards to be set on the Community level. Of course the involvement of industry in itself fits perfectly with the White Paper’s viewpoint on promoting participation and also with notions of co-regulation. On the other hand, if we consider this matter from the angle of public choice theory, could it not be that the private interest perspective of industry has motivated the idea of pushing for standard-setting on the Community level, rather than on the level of member states? On the central EC level ENGOs still seem to have less influence than on the (sub)national level; furthermore, the standard-setting procedure on the EC level is often more depoliticized because the comitology procedure is applied.173 From this point of view the very least that should be considered is to ensure that stakeholders in environmental policies have an equal say in the relevant decision making procedures – on all levels. This is all the more relevant as environmental policies are concerned with technical expertise, and thus public authorities carry the risk of becoming dependent on know-how and information from industry and are, in a sense, ‘captured’ by industry.174 Openness and especially procedural transparency can possibly remedy such an occurrence.175 All in all this paints a picture in which pressure for the centralized setting of emission limit values should be critically looked at – and with that a critical appraisal of the White Paper’s approach to participation and openness seems to be in place.

171 172

173

174

175

Through the same mechanisms that determine the ‘prisoner’s dilemma’. Research shows that emission values only play a marginal role in (re)location decisions in industry! See also: R van den Bergh, M. Faure and J.G.J. Lefevere, ‘The Subsidiarity Principle in European Environmental Law: An Economic Analysis’, in E. Eide and R. van den Bergh (eds.), Law and Economics of the Environment, Oslo, Juridisk Forlag, 1995, p. 122-166. With grandfathering (or ‘rent seeking’) as a possible consequence. See M. Maloney and R. McCormick, ‘A Positive Theory of Environmental Quality Regulation’, Journal of Law and Economics, 1982, p. 99-123. J.H. Jans, supra note 114, p. 60-64 and p. 66.

209

Good Environmental Governance in the EU

7.3.

Aspirations for a Shift in European Environmental Governance

It will be clear that the aspects of openness and participation and especially the emancipation of ENGOs is of great importance in order to create the type of ‘level playing field’ which is required. Scott, Jans and their fellow members in the Avosetta Group (of lawyers in European environmental law) point to the need to change Article 230(4) EC.176 Currently access to procedures to object against EC Directives and regulations requires legal standing on the basis of ‘direct and individual concern’ a general concern for the protection of the environment is considered an insufficient ground for legal standing. A change of criteria in the European Constitution could do a great deal of good in emancipating the role of ENGOs on the EC level. Secondly, one may wonder how a change in the relationship between the SEM and the ideal of ‘a Europe for citizens’, guaranteeing a similar environmental quality for all Europeans, can best be brought about. One of the key elements to a shift could well lie in the substantive underpinning of environmental law in Europe. Earlier (in § 5.1) we looked at the role that environmental principles play as benchmarks for environmental policy making. According to Winter, a reformulation of these principles, so as to enhance their legal character, is unnecessary.177 Courts and legal doctrine have sufficient possibilities to either promote a more restrictive or extensive interpretation of the existing principles.178 A more provocative option would be to introduce a right to a clean environment. Ermacora, together with the other members of the Avosetta Group, have formulated a proposal to that extent.179 The main advantages of such a basic right would be: firstly, to enhance the clarity of the concept itself (thereby providing legal certainty); furthermore, to enhance respect for such a right by individuals (which would amount to individuals taking EC environmental law more seriously and taking legal (court) action to defend their environmental basic right); finally, this right could establish the equal ranking of the environmental interest with rights such as the freedom to conduct a business or the right to property – the emancipatory motive. The Avosetta Group proposed the following formulation:

176

177 178

179

210

J. Scott, supra note 32, p. 1001-1002. J.H. Jans, supra note 114, p. 64-66 (also for some relevant case law). Avosetta Group, ‘Resolution’, in J.H. Jans (ed.), The European Convention and the Future of European Environmental Law, Proceedings of the Avosetta Group of European Environmental Lawyers, Groningen, Europa Law Publishing, 2003, p. 121, no. 8. G. Winter, supra note 114, p. 3-25, especially p. 13. A more ‘active’ role on the part of the courts could, in a moderate way, bring about something of a shift to Court Governance; see the discussion under § 2d. F. Ermacora, ‘The Right to a Clean Environment in the Constitution of the European Union’, in J.H. Jans (ed.), The European Convention and the Future of European Environmental Law, Proceedings of the Avosetta Group of European Environmental Lawyers, Groningen, Europa Law Publishing, 2003, p. 29-42. For the resolution of the whole Alvosetta Group on this issue see ibidem p. 119-120.

Michiel A. Heldeweg

‘Everyone has the right to a clean natural environment. This right is subject to reasons of overriding public interest. It includes the right to participation in decision making, the right of access to the courts and the right to information in environmental matters. A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.

The group referred to the fact that such a right has been recognized by the ECHR on various occasions and for different legal grounds and also, in some form or another, by many European constitutions. This Avosetta initiative coincided with a proposal from the ‘Green G8’: the inclusion of environmental rights in the Charter of Fundamental Rights (to the Treaty).180 Naturally it remains to be seen whether such a basic environmental right would bring about a shift in environmental governance. It would still be questionable whether it would give rise to the notion of ‘a Europe for citizens’, guaranteeing a similar environmental quality for all Europeans and if it would even leave room for different ways of attaining that level of protection (through emission standards) in shared responsibility and possibly in a system that allows for regulatory competition. The final text of the Treaty establishing a Constitution for Europe contains few new initiatives for environmental policy making. According to Article I-3 of the Constitution, a high level of protection and improvement of the quality of the environment is still one of the main Union objectives. This is reflected in Article II-97, which stipulates that this objective is to be integrated into the policies of the Union and is to be ensured in accordance with the principle of sustainable development. Subsequently, Articles III 233-234 offer the operational normative foundations (such as more specified objectives, principles, instruments and procedures – very much like the present Arts. 174-176 EC-Treaty) for the Union’s environmental policy undertakings. Finally, Article I-14 refers to the ‘Environment’ as one of the principle areas of shared competence between the Union and its Member States. So the Constitution offers no explicit initiatives for new environmental policy instruments. Maybe we should take this as confirmation of the leading notion in the 6th EAP, and the preceding environmental policy practice. In their 2003 article Rittberger and Richardson wanted to discover, ‘[…] whether the alleged shift in the Commission’s environmental ‘policy style’, from a traditional regulatory style towards a new style based on less impositional, more market based a co-operative instruments has actually occurred in practice’.181 On the ‘declaratory level’ they analysed what the Commission had announced in the field of legal environmental policy making. In comparing the 4th and 5th EAP on three key issues (external integration, participation and new instruments), through a statistically aided analysis (on key words per issue), they found a change towards innovation through new style instruments (although the analysis also showed that, even in the 5th EAP, the 180

181

See the 5th ‘issue for consideration in: . B. Rittberger and J. Richardson, supra note 27, p. 575.

211

Good Environmental Governance in the EU

Commission was never willing to ‘throw out the baby with the bathwater’).182 In their analysis of the ‘operational level’ they focussed on three areas: water policy, waste policy and atmospheric pollution. In all areas they found that in at least 50 percent of all Commission proposals for legislation in the period between 1994 and 2000, command and control instruments were advocated.183 Still, in all of these instances there are also examples of supplementary ‘new style’ legislation, albeit only limited. In their final analysis Rittberger and Richardson assume that the Commission is acting ‘strategically’, looking for a balance between the existing rules, the main policy trends (including possible changes in rules) and stakeholders’ interests. Alternatively they reason that the Commission operates on the basis of a ‘risk avoidance strategy’. Convinced as the Commission may be of the need for new policy instruments, it is also fully aware of the need to retain the key elements of the old style instruments.184 Along this strand the nature of each separate environmental problem also plays an important role: ‘different problems might require different tools’.185 Clearly problems involving serious risks to human health will still warrant a command and control response (if only for political reasons). Again in this view the 6th EAP is more balanced than the 5th EAP and the old style instruments are still very much alive.

7.4.

Summing Up

According to Fiorino186 governance literature suggests that there are common stages through which nations progress as they learn to cope with environmental problems. Most countries initially apply an approach which relies on direct regulation for pollution sources and gradually progress to more complex strategies, with a broader range of instruments and more reliance on cooperative relationships between stakeholders: ‘this progression may be seen as one from substantive to reflexive law; from hierarchical-adversarial to social-political governance; and from more technical to conceptual and social learning’. The evolutionary lesson to be learned in Environmental Legal Policies is that ‘as the world changes, patterns of law and governance must change with it’.187 Clearly the White Paper and environmental law in Europe are in tune with this statement and join in the Commission’s attempt to bring about these necessary changes. On the one hand, at the declaratory level, the relevant policy documents almost seem to overstretch the operational, political and institutional possibilities. Then again, on the other hand, both the White Paper and the strategic environment documents (such as the EAPs) do not aim for a revolutionary shift in governance, but merely for a turn to good governance: aiming for closer relations between gov182 183 184 185 186 187

212

Ibidem, p. 581-587. Ibidem, p. 591 (water); p. 593 (waste) and p. 594-597 (atmospheric/air). Ibidem, p. 598. Ibidem, p. 601-602. D.J. Fiorino, supra note 132, p. 467. Ibidem.

Michiel A. Heldeweg

ernments in Europe and civil society, or likewise, for shared responsibility in environmental protection. Given these ambitions, surely environmental law in Europe is already a case of ‘work in progress’. Environmental policy instruments will continually have to be adjusted to changes, both in relation to technical and to socio-political developments. Still, however, the question remains whether effective and efficient environmental policies require a genuine adjustment of existing institutional structures – indeed a shift in European governance. On a number of issues there seems to be a (academic) push for such a change. -

-

-

Firstly, the issue of introducing a basic right to a clean environment; to truly involve private citizens’ interest in European environmental law. This could be supplemented with a policy to further the use of provisions with direct effect, thus enabling citizens to directly appeal for their enforcement.188 Secondly, the issue of strengthening the legal position of ENGOs, especially on the EC level, alongside improved transparency in decision making (again especially on the EC level). Thirdly, the issue of placing a ‘Europe of citizens’, in terms of guaranteed minimum environmental quality, before the protection of the SEM, in terms of equal conditions for competition.

Clearly the last-mentioned issue not only appeals to ‘idealist’ convictions for emancipating the environmental interest, but it also appeals to our willingness and readiness for genuine institutional change. A change that may not require a legal reform of institutions, but that will most certainly require a change in legal policies with regard to relations between the EC level and the member states. In allowing (moderate) regime competition,189 such an approach could pave the way to expanding the possibilities for the use of more horizontal instruments (such as environmental agreements). Furthermore, participation by civil society would stand to gain as more decision making processes would take place ‘closer to home’. Finally, putting a ‘Europe of and for citizens’ before other considerations could contribute to bridging the facilitative and the harmonization arenas so as to advance political transfer.190 The assignment underlying some of the contributions to this book is to look for ‘lessons from national law’ with regard to good governance in the EU/EC. A first lesson on the basis of the prior analysis of environmental law in Europe could be that as good governance reflects primarily the principles of openness and participation, a critical appraisal of decision making is warranted on the basis of public choice theory and on the need for balancing institutional powers by basic citizens’ 188

189

190

Minimum quality standards could be formulated. It depends on the type of pollution whether the causal chain of events leading to an excess of pollution will constrain citizens from actually pursuing their rights. Surely, minimum quality standards at the EC level would not need to be set at the lowest acceptable level. See § 4.3.

213

Good Environmental Governance in the EU

rights (both substantive and procedural, including legal standing for groups, associations and organizations) – on all levels.191 A second lesson could be to evaluate governance by putting more trust in what is to be gained by the diversity that Europe represents and acting in a less protective way in view of both the SEM and member states’ sovereignty (as a concept to shield against competition). Thus arrangements concerning co-regulation and self-regulation could proliferate across various levels of government, resulting in a closer and more widespread involvement of citizens (both individually and in groups), associations and organizations, throughout European civil societies. Much is still to be gained by working more closely through pluri-formity.

191

214

Most of the debate on good governance is concerned with these – important – questions. See: .

Ramses A. Wessel*

GOOD GOVERNANCE AND EU FOREIGN, SECURITY AND DEFENCE POLICY

‘The Union’s first step must be to reform governance successfully at home in order to enhance the case for change at an international level’. (Commission’s White Paper on European Governance, July 2002)

1.

Introduction

The European Commission’s White Paper on European Governance, issued in July 2002, boosted the discussion on the reform of European governance.1 In this document, the Commission lists five principles that underpin good governance: openness, participation, accountability, effectiveness and coherence. These principles are believed to form the basis for democracy and the rule of law in the member states, but in fact apply to all levels of government – local, regional, national, European and global. Although ‘good governance’ has been on the agenda of many international organizations for fifty years – as a result of expectations regarding their increasing role in the structuring of international society – the notion originally had to do with the equal participation of states or stimulating national democracy rather than with bringing international organizations closer to the citizens.2 Nevertheless, some of the principles, which featured in that debate (democratic representation, accountability, transparency) are similar to the ones which we now encounter in the discussion on the European Union and public administration. As said, the Commission’s White Paper serves as a reference framework for the current debate. While the European Community seems to be the main focus of *

1 2

Associate Professor of International and European Law, Centre for European Studies and Department of Legal Studies, University of Twente, The Netherlands. COM(2001) 428 final, Brussels, 27 July 2001. See N. Woods, ‘Good Governance in International Organizations’, Global Governance, 1999, p. 39-61; Th. M. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, 1992, p. 46-91.

215

Good Governance and EU Foreign, Security and Defence Policy

the White Paper, the numerous references to the European Union allow for the application of the various ideas and plans to the Common Foreign and Security Policy (CFSP) and the newly established European Security and Defence Policy (ESDP) as well.3 In fact, the above quotation from the White Paper reveals the steps foreseen by the Commission: an internal application of the principles of good governance, followed by the promotion of these principles on a global level. The present contribution aims to follow the same path. First of all the concept of good governance will be applied to the CFSP arrangements as laid down in the Treaty on European Union. The concept itself will not be challenged; I will simply depart from the principles that are thought to underpin good governance in the White Paper as well as in surrounding literature. Secondly, at the end this chapter attempts to consider good governance as a substantive element of EU policy vis-àvis third states. To what extent has the Union indeed been given competences to make ‘a contribution to global governance’ as heralded by the White Paper. Lawyers are not yet fully accustomed – and maybe not even fully qualified – to play a part in the governance debate. They lean heavily on insights offered by scholars in sociology, political science and public administration. In fact, as one observer held, the ‘governance project’ of the Commission could be viewed as ‘a package of innovation launched strategically into a legally undefined space that is located somewhere between administrative and constitutional reform’.4 At the same time a distinctive role for legal science in this debate must imply an original point of view, in which the principles underlying good governance are translated into more ‘down to earth’ legal terms. This has, for instance, been done with regard to the principle of coherence, which received abundant attention in the post-Maastricht literature.5 In the present article an attempt is made to find out to what extent the Union lives up to some of the other principles mentioned by the Commission by highlighting the competences of the Union and the legal arrangements governing the democratic and judicial accountability and transparency of decision making in the area of CFSP. This focus on legal rules and competences obviously does not reveal the practice of the involvement of civil society in CFSP (if it’s at all present). Neither does it supply answers as to the effectiveness of the existing arrangements in terms of actual (political) influence on CFSP, or to the functioning of CFSP in terms of legitimacy. On the other hand, it does reveal the legal framework which sets the boundaries – and at the same time offers the opportunities – for applying the principles of good governance in this area. Section two will focus on the parliamentary control of CFSP, both by the European Parliament and by the national parliaments. The reason for this is that the 3

4

5

216

The arrangements concerning these policies are not laid down in the EC Treaty, but in Title V of the Treaty on European Union. Parts of the present paper are based on R.A. Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective, The Hague, Kluwer Law International, 1999. Chr. Joerges, ‘Guest Editorial: The Commission’s White Paper on Governance in the EU – A Symptom of Crisis?’, Common Market Law Review, 2002, p. 441-445. See for references R.A. Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’, Common Market Law Review, 2000, p. 1135-1171.

Ramses A. Wessel

Treaty lays down a system in which citizen involvement is embedded in a system of democratic representation on two ‘constitutional’ levels.6 More direct possibilities for civil society, however, depend on their knowledge of what is going on in CFSP. Section 3 will investigate the legal arrangements concerning the transparency of decision making and access to information. This will be followed by a survey of the possibilities for judicial scrutiny of the CFSP decisions and procedures, at the European level, but also at the national and international levels (section 4). Finally, section 5 will look into good governance as a substantive foreign policy objective and the possibilities of the Union to contribute to ‘global governance’. As most of the rules originate in the formative years of CFSP (the 1990s), occasional reference will be made to this period.

2.

Parliamentary Control of CFSP Decision making

2.1.

The Competences of the European Parliament

2.1.1 The Emergence of Parliamentary Scrutiny at the European Level In discussing the competences of the European Parliament (EP), one enters one of the most criticized areas of European integration. Many regard the ‘democratic deficit’ as one of the principal shortcomings of the European Union.7 Regarding cooperation also in the area of foreign policy, the influence of the EP on decision making as well as its supervision has traditionally been marginal. Whereas the proposal for a European Political Union drafted by the French Government in 1960 already envisaged a democratically elected body to exert control over a European foreign policy,8 the EP has found itself fighting for its ‘rights’ ever since the creation of European Political Cooperation (EPC) at the beginning of the 1970s.9 The 1970 Davigon Report provided for a yearly ‘progress report’ to the EP by the Presidency (‘the 6

7

8

9

See for the constitutional approach of European foreign policy in these terms my article entitled ‘The Multi-Level Constitution of European Foreign Relations’, in D. Curtin et al., The Emerging Constitution of the European Union, Oxford, Oxford University Press, 2005 (forthcoming). An extensive analysis as well as a survey of views is provided in D.M Curtin, ‘Betwixt and Between: Democracy and Transparency in the Governance of the European Union’, in J. Winter, et al. (eds.), Reforming the Treaty on European Union – The Legal Debate, The Hague, Kluwer Law International, 1996, p. 95-121; or D.M Curtin, Postnational Democracy: The European Union in Search of a Political Philosophy, The Hague, Kluwer Law International, 1997. See also E.-U. Petersmann, ‘The Moral Foundations of the European Union’s Foreign Policy Constitution: Defining ‘European Identity’ and ‘Community Interests’ for the Benefit of EU Citizens’, Aussenwirtschaft, issue II, 1996, p. 151-176 and M. Hilf and F. Schorkopf, ‘Das Europäische Parlement in den Außenbeziehungen der Europäischen Union’, Europarecht, issue 2, 1999, p. 185202. See for the text of this proposal for instance J.C. Masclet, L’Union politique de l’Europe, Paris, Presses Universitaires de France, 1973, p. 45. See in particular: G. Gaja, ‘European Parliament and Foreign Affairs: (1) Political Cooperation among the Nine’, in A. Cassese (ed.), Parliamentary Control over Foreign Policy: Legal Essays, Alphen aan den Rijn, Sijthoff & Noordhoff, 1980, p. 191-205.

217

Good Governance and EU Foreign, Security and Defence Policy

president-in-office of the Ministers for Foreign Affairs’) and for ‘six-monthly meetings’ between the Ministers for Foreign Affairs and the EP’s Political Affairs Committee. The 1973 Copenhagen Report doubled the frequency of these meetings as the yearly meetings of the foreign ministers increased from two to four. In fact, these provisions triggered an increase in the interest of the EP in questions of foreign policy, which had been very limited before 1973.10 On the other hand, possibilities for the EP to develop a policy were limited as well, as the EPC provisions did not confer any powers on the EP to influence or control European foreign policy. In the EP’s opinion, the foreign ministers’ meetings should be ‘immediately followed by a colloquy between the ministers and the Political Affairs Committee’,11 but practice showed that the Committee’s meetings were, at best, attended by the Presidency only. An annual debate between the EP and the Presidency on the basis of the ‘progress report’ was introduced in 1974, but did not increase the possibilities for control, since here too the EP depended on the information provided by the Presidency and was bound to deliver ex post facto opinions only. The same holds true for the competence of the EP, introduced in the same year, to address ‘questions on political cooperation’ to the Presidency. Regardless of this competence, until May 1976 the ministers refused to recognize that such questions could be addressed during question time. The ordinary procedure often involved considerable delays, which significantly reduced the value of posing questions.12 In 1978 the EP expressed: ‘its concern at the lack of substantive and up-to-date information given to the European Parliament by the foreign ministers of the Nine concerning measures of joint foreign policy’.13

With the further codification of the European Political Cooperation in the Single European Act in 1986, the position of the EP did not improve, as its influence was still described as vaguely as possible: ‘The High Contracting Parties shall ensure that the European Parliament is closely associated with European Political Cooperation. To that end the Presidency shall regularly inform the European Parliament of the foreign policy issues which are being examined within the framework of Political Cooperation and shall ensure that the views of the European Parliament are duly taken into consideration’.14

It proved that terms like ‘closely associated’, ‘regularly inform’, and ‘taken into consideration’ provided enough possibilities for the ministers to limit parliamentary control to a partial right to information.15 In general, parliamentary control over for10 11 12 13 14 15

218

Ibidem, p. 193. See Resolution of 6 April 1973, OJ C 26, 1973, p. 26. See G. Gaja, supra note 9, p. 195. Resolution of 19 January 1978, OJ C 36, 1978, p. 33. Article 30, para. 4 SEA. Cf. S. Stavridis, ‘The Democratic Control of CFSP’, in M. Holland (ed.), Common Foreign and Security Policy: the Record and Reforms, London, Pinter, 1997, p. 136-147, at p. 137.

Ramses A. Wessel

eign policy is limited on a national level as well,16 and ministers were reluctant to introduce powers in the 1986 Treaty that would constrain their traditional freedom to act according to specific circumstances in European affairs. The Treaty on European Union still reflects this idea and the competences of the EP that have developed since 1970 have found their way into the current Article 21.

2.1.2 Current Competences of the European Parliament in CFSP Article 21 TEU reads: ‘The Presidency shall consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament shall be kept regularly informed by the Presidency and the Commission of the development of the Union’s foreign and security policy. The European Parliament may ask questions of the Council or make recommendations to it. It shall hold an annual debate on progress in implementing the common foreign and security policy’.17

The imperative nature of the norms laid down in this provision makes it clear that the Presidency is obliged to consult the EP and take its views into consideration. Furthermore, the EP’s right to be kept informed results in obligations for the Presidency and the Commission. Therefore, the problem – if one wants – lays not so much in the choice of norms, but in the contents of the obligation laid down in these norms. The terms ‘main aspects’ and ‘basic choices’ were not defined by the Treaty, which seems to leave their interpretation to the discretion of the Presidency. The same holds true for ‘takes into consideration’ and ‘regularly’. Moreover, it is striking that the two main decision making organs – the Council of Ministers and the European Council – are not accountable to the EP. The relationship of the EP with the Council is limited to its power to ask questions and to make recommendations.18 The latter possibility has only been used modestly.19 No 16

17

18

19

See A. Cassese, supra note 9. Cf. also Th. Grunert, ‘The Association of the European Parliament: No Longer the Underdog in EPC?’, in E. Regelsberger et al. (eds.), Foreign Policy of the European Union: From EPC to CFSP and Beyond, Boulder, Lynne Rienner, 1997, p. 109-132, at p. 112: ‘In the individual states, foreign and security policy is traditionally the exclusive competence of governments. Parliaments can monitor government action through questions, motions of non confidence, the adoption or rejection of international treaties, and by means of ratification procedures’. Regarding PJCC, a similar regime may be found in Article 39, paras. 2 and 3. However, on the basis of paragraph 1, the Council shall consult the EP before adopting any PJCC decision other than a Common Position. Parliament’s right to make recommendations on CFSP issues is confirmed in its Rules of Procedure of February 2003, Rule 104. In urgent cases, the power to issue recommendations on foreign policy is transferred to the Presidency. Early examples of Recommendations of the EP concerned regions in crisis failing a strong policy by the Council (for instance Chechnya in 1995 and Kosovo in 1996). See EP Document PE 216.369/def of 30 May 1996 (Fernández-Albor Report) and Document 220.788/def of 28 May 1997 (Spencer Report).

219

Good Governance and EU Foreign, Security and Defence Policy

direct link exists between the EP and the European Council, despite the fact that the latter institution is responsible for the definition of the principles of and general guidelines for the common foreign and security policy and for Common Strategies (Art. 13, paragraphs 1 and 2). It has been observed that the European Council has a de facto right of initiative which is not open to censure. Thus, Parliament’s active participation in shaping the substance of CFSP rests with the entire discretion of the member states.20 From the outset Parliament itself pointed to a need to have a mandatory right to be consulted on the formulation of general guidelines and Common Strategies.21 The Presidency was given the task of consulting the EP and of ensuring that its views are taken into consideration.22 In practice, however, the consultation procedure has proved to be inadequate. In October 1993, just prior to the entry into force of the Treaty on European Union, the Council drew up a number of guidelines to establish close relations with the EP in the area of CFSP;23 nevertheless practice has not revealed any real possibilities for supervision by the EP. It is true that the EP is informed by the Council and the Commission concerning the main developments in CFSP, but the information often arrives too late for Parliament to share its views with the Council. The annual debate on the developments in foreign policy is by its very nature bound to be limited to an exchange of statements on and control over the activities of the European Council on the basis of the reports produced by this institution – after each meeting and yearly on the progress achieved by the Union (Art. 4 TEU) – and can only take place ex post facto.24 In its 1995 Report on the implementation of CFSP, the EP complained that it had never been consulted on the main aspects and the basic choices of the CFSP, let alone being consulted on concrete proposals for joint actions.25 In the beginning the EP did not even receive cop20

21

22

23

24

25

220

A. Maurer, ‘Democratic Governance in the European Union: The Institutional Terrain after Amsterdam’, in J. Monar and W. Wessels (eds.), The European Union after the Treaty of Amsterdam, London/New York, Continuum, 2001, p. 96-124, at p. 116. Opinion of the Committee on Foreign Affairs, Security and Defence Policy for the Committee on Institutional Affairs on the Operation of the Treaty on European Union with a View to the Intergovernmental Conference in 1996 (PE 211.022/fin), 21 February 1995; and Committee on Institutional Affairs, Working Document on the CFSP Process (PE 211.310), 1995. Rule 103 of the EP’s Rules of Procedure affirms the right to be consulted and informed on CFSP matters. The Committee on Foreign Affairs, Security, and Defence Policy is responsible for ensuring that Parliament is consulted in this area and that its opinions are taken into account. This task is carried out when Council and Commission representatives appear at the meetings of the Committee; via oral questions in plenary meetings and via the Committee’s dialogue with the High Representative. The guidelines were adopted in the Council Decision of 26 October 1993. These guidelines were further elaborated by COREPER in July 1994; see Doc. SN 3258/94, partie A, Relations entre le Parlement européen et le Conseil, adopted by COREPER, 8 July 1994. The rule that the European Council shall submit to Parliament a report after each of its meetings and an annual written report on the progress achieved by the Union amounts to a consolidation of established EPC practice. See also point 2.1.4 of the Solemn Declaration of Stuttgart, 19 June 1983, Bull. EC 6/1983. Report of the Committee on Foreign Affairs, Security and Defence Policy (Rapporteur Matutes), 20 April 1995 (A4-0083/95), p. 17. Cf. also Th. Grunert, supra note 16, p. 113, who asÆ

Ramses A. Wessel

ies of the Declarations adopted by the Council.26 In 1999 Parliament again noted that: ‘while the treaty obligations of Article 21 to keep Parliament fully informed on the development of the Union’s foreign and security policy have been fulfilled more or less satisfactorily by the Commission, the same cannot be said about the Council and the Presidency which did not make any recognisable effort to build up a fruitful relationship with Parliament on a continuous basis’.27

The introduction of the High Representative on CFSP during the same year resulted in some improvement. The HR is invited to make statements in Parliament and practice reveals a constructive willingness on the part of the HR to respond to these invitations and to have discussions with the MEPs on foreign policy issues.28 Irrespective of its marginal role in CFSP issues, the Commission’s activities are of interest to the MEPs as well. Controlling the Commission may formally take place by making use of existing Community procedures. In this respect, it should be noted that regarding the necessary approval by the EP of the five-year appointment of the Commission (Art. 214 EC), the EP may also take into account the position and functioning of the Commission in the area of CFSP. Likewise, the EP may make use of its right to request the Commission to submit proposals on certain CFSP positions or actions (Art. 192 EC) and the Commission is obliged to reply to questions put to it by the EP or by its members (Art. 197 EC).29 Some authors have even hinted at the possibility that the EP may adopt a motion of censure, since Article 201 EC does not explicitly restrict the use of this instrument to the Community policies of the Commission.30 However, unlike the other articles mentioned, Article 201 EC is not re-

26

27

28 29

30

serted that Parliament at that time had never been consulted beforehand and regularly on foreign policy decisions. See the analysis of the former President of the EP and of the Committee on Foreign Affairs and Security, E. Barón Crespo, ‘CFSP: The View of the European Parliament’, in S.A. Pappas and S. Vanhoonacker (eds.), The European Union’s Common Foreign and Security Policy: The Challenges of the Future, Maastricht, EIPA, 1996, p. 37-44 at p. 38. However, the abovementioned COREPER decision of July 1994 explicitly provides: ‘les déclarations que la Présidence ou le Conseil adoptent seront transmisses sans délai au Parlement par tous moyens appropriés’. According to the same decision, other Council decisions are transmitted to the EP ‘dans les meilleurs délais’; whereas responses to written questions are transmitted ‘dans un délai raisonnable’. Resolution on the role of the Union in the world: Implementation of the common foreign and security policy for 1998, No. A4-0242/1999. See also Rule 101 of the Rules of Procedure of the EP of February 2003. Cf. T. Heukels and J. de Zwaan, ‘The Configuration of the European Union: Community Dimensions of Institutional Interaction’, in D.M. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, vol. II, Dordrecht, Martinus Nijhoff Publishers, 1994, p. 195-228, at p. 218. This option seems to be included by T. Heukels and J. de Zwaan, supra note 29, when they refer to (ex) Article 144 in relation to (ex) Article 138b EC, at p. 218, footnote 107. A similar hint is made by N. Neuwahl, ‘Foreign and Security Policy and the Implementation of the Requirement of “Consistency” under the Treaty on European Union’, in D. O’Keeffe and Æ

221

Good Governance and EU Foreign, Security and Defence Policy

ferred to in Article 28 TEU, which a contrario would exclude this possibility. But, more importantly, apart from the fact that these instruments are both very indirect and in most cases not proportional, the limited influence of the Commission on CFSP decision making has a direct effect on the Parliament’s possibilities of controlling this policy through the Commission. However, the EU’s foreign policy is primarily, but not at all exclusively, to be dealt with under the CFSP provisions. A number of policy areas are included in the EC Treaty, allowing the EP to make use of the Community procedures in its supervision as well – as is the case with the Commission. First of all, Parliament can decide on general foreign policy guidelines for development cooperation, to which the co-decision procedure applies (Art. 179, paragraph 1 EC). Secondly, the assent of the EP is required for association agreements with third countries and international organizations on the basis of Article 300 EC (and for the accession of new member states on the basis of Art. 49 TEU). Finally, the EP has a direct influence once CFSP expenditure is charged to the budget of the European Communities (infra). On the other hand, the provision on sanctions, Article 301 EC, allows for the Council to decide to interrupt in part or completely economic relations with a third country without having to consult the EP. It is clear that the formal competences of the EP with regard to the supervision of CFSP are limited. Parliament itself is of course very well aware of this situation and has constantly pressed for more powers in this regard.31 It may be true that the launching of CFSP was one of the reasons for the EP’s approval of the Treaty on European Union,32 but Parliament only accepted the outcome as it regards the current situation as a transition phase, ‘eventually leading to a comprehensive democratization of the process of planning and implementing CFSP’.33 Overall, as one observer put it:

31

32 33

222

P. Twomey (eds.), Legal Issues of the Maastricht Treaty, London, Wiley Chancery Law, 1994, p. 227-246 at p. 243. See in particular Resolution A3-0189/92, adopted on 20 January 1993, OJ C 42, 15.2.93, at 129 (the Hänsch Report); Resolution A3-0322/92, adopted on 18 December 1992, OJ C 21, 25.1.93, at 503 (the Verde Report); Resolution on the European Council Report Towards European Union, adopted on 11 March 1993, OJ C 115, 26 April 1993, at 175; Resolution A3-0041/94, adopted on 24 February 1994 (the De Gucht Report); Resolution A4-0083/95 of 20 April 1995 (the Matutes Report); and Resolution A4-0102/95, of 4 May 1995, adopted on 17 May 1995 (the Bourlanges/Martin Report). See on the contributions of the EP to the 1990/91 IGC also S. Vanhoonacker, ‘The European Parliament’, in F. Laursen and S. Vanhoonacker (eds.), The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community, Maastricht, EIPA, 1992, p. 215-228. In fact, the EP had wanted to approve the ‘important interests in common’ that would be defined by the European Council. See the Resolution of 10 October 1991 on the IGC on Political Union, OJ 1991 C 280, p. 148. See E. Barón Crespo, supra note 26, p. 38. See the Resolution of the European Parliament of 18 December 1992, Doc. A3-0322/92. A ‘comprehensive democratization’ would, however, also call for a different attitude of the EP’s standing committees. Parliament’s internal procedures for scrutinizing CFSP are often affected by rivalries between these committees. Thus, the REX Committee and the Budgets Æ

Ramses A. Wessel

‘the current situation confirms the old prejudice surrounding governments’ exclusive role in foreign policy, to be exercised in total secrecy and away from the ‘intrusions’ of representative organs and the public eye. EU ministers exercise their foreign policymaking independently from the European Parliament, especially in the field of CFSP which is still a broad framework rather than an inclusive system’.34

However, in the meantime, the EP found some ways to supervise CFSP regardless of its limited Treaty competences. This is above all reflected in the regular dialogue with the Council, which is used by Parliament to question the passivity of CFSP in relation to certain issues (like for instance the Russian military actions by Chechnya or democratization in the Mediterranean). The EP’s Annual Reports usually strongly criticize the (absence of) actions by the Council under CFSP, beside suggesting alternative approaches, and in some cases Parliamentary pressure has indeed led to a modification of Joint Actions (for instance concerning Mostar).35 In addition, the Committee on Foreign Affairs, Human Rights, and Common Security and Defence Policy as well as the President of Parliament frequently meet with Foreign Ministers and Presidents of third states, allowing the EP to contribute to the foreign policy debate.36 This more positive dimension formed a reason for Bieber to conclude: ‘The European Parliament’s activities in the sphere of general international politics provide the most striking example of a parliament’s modern role in this field. Without any powers to compel the member states’ governments – let aside powers to impose its views on third countries – the European Parliament has developed a strong international consciousness. The responsibility of European people in world affairs and the need to voice diverging views on common values found a unique forum in the European Parliament. No national parliament so frequently debates events of other parts of the world, denounces violations of human rights, peace and freedom. Correspondingly statesmen from all over the world seek the opportunity to address via the European deputies, the European peoples’.37

Moreover, and most effectively, Parliament found a way to use its budgetary competences to supervise at least part of the CFSP actions of the Council.

34

35

36

37

Committee both tend to interfere occasionally with matters which the Foreign Affairs Committee considers to be of its own domain. D.M. Viola, European Foreign Policy and the European Parliament in the 1990s: An Investigation into the Role and Voting Behaviour of the European Parliament’s Political Groups, Aldershot, etc., Ashgate, 2000, p. 43. See for instance the Reports of 20 April 1994, 30 May 1996 and 28 May 1997. Cf. also S. Keukeleire, Het buitenlands beleid van de Europese Unie, Deventer, Kluwer, 1998, p. 271 and p. 314. See the Parliament’s assessment of its own role in the Report on the Role of the Union in the World: Implementation of the Common Foreign and Security Policy for 1997 (Spencer Report), 30 April 1998, A4-1069/98, p. 12. R. Bieber, ‘Democratic Control of International Relations of the European Union’, in E. Cannizzaro (ed.), The European Union as an Actor in International Relations, The Hague, Kluwer Law International, 2002, p. 105-116 at p. 110.

223

Good Governance and EU Foreign, Security and Defence Policy

2.1.3 Budgetary Influence of the EP on CFSP: The ‘Power of the Purse’ At first sight, the provision in the 1992 Article J.11 that administrative CFSP expenditure was to be charged to the EC budget, and that the Council could also decide to charge operational expenditure to that budget, did not give rise to increased possibilities for supervision by the European Parliament. Nevertheless, the provision that in that event ‘the budgetary procedure laid down in the Treaty establishing the European Community shall be applicable’ should have warned the drafters of the TEU. Over the years the EP has made full use of this provision to influence and supervise CFSP developments.38 In the EPC period the administrative expenditure for organizing meetings and distributing documents fell under the responsibility of the Presidency. Each foreign ministry paid the travel costs of its representatives, and the small EPC Secretariat costs were kept to a minimum thanks to effective arrangements with the General Secretariat of the EC Council.39 In the 1990/91 IGC it was clear from the outset that the more ambitious CFSP would need new financial arrangements, but a consensus on a new procedure was difficult to reach. Here as well the diverging views came out of a preference for either a more ‘communitarized’ or a strictly intergovernmental CFSP. The compromise in Article J.11, paragraph 2, reflected both views as it allowed for administrative expenditure to be charged to the EC budget and for operational expenditure to either be charged to that budget (after a unanimous decision to that end) or to the national budgets of the member states (in accordance with a scale to be decided). The very first Joint Action of 8 November 1993 (one week after the entry into force of the TEU) already highlighted the need for member states to make use of the EC budget. It proved to be extremely difficult to finance the support for the convoying of humanitarian aid to Bosnia-Herzegovina out of the national budgets. The procedure was far from efficient, and it was a reason for the Council in some cases to refer to the administrative costs only when operational expenditure was obviously also involved.40 The reason was that complex national budgetary mechanisms or the hesitance of some member states to fulfil their financial obligations would at least not be able to prevent the joint action from taking place. However, sparing national budgets in this way resulted in an increase in the influence of the European Parliament. The first action of the EP in this respect took 38

39 40

224

See in particular the studies by J. Monar, ‘The Financial Dimension of the CFSP’, in M. Holland (ed.), Common Foreign and Security Policy: the Record and Reforms, London, Pinter, 1997, p. 34-51 and The Finances of the Union’s Intergovernmental Pillars: Tortuous Experiments with the Community Budget, 1 Journal of Common Market Studies, p. 57-78. See also B.-C. Ryba, ‘La politique étrangère et de sécurité commune (PESC): Mode d’emploi et bilan d’une année d’application (fin 1993/1994)’, 384 Revue du marché commun et de l’Union européenne, 1995, p. 14-35, that were very helpful in drafting this section. According to Ryba (p. 20) the negotiators had not foreseen the extensive influence of the EP through the budgetary regulations. J. Monar, supra note 38, p. 34. See for instance the Joint Action on the dispatch of a team of observers for the Parliamentary elections in the Russian Federation (93/604/CFSP of 9 November 1993) or the Joint Action on the inaugural conference on the Stability Pact (93/728/CFSP, 20 December 1993).

Ramses A. Wessel

place on 28 October 1993, when it amended the draft budget by inserting one million ECU into the Commission’s operational reserves for possible transfer to the operational costs of only.41 This move by the EP was meant to secure its influence on CFSP expenditure, since transfers between non-compulsory expenditure chapters proposed by the Commission can be approved or rejected by Parliament after consultation with the Council.42 Thus, any transfer of these finances to the regular CFSP chapter would need the approval of the EP. As we have seen, however, the Council continuously tried to limit the influence of the EP, either by using national budgets or by broad interpretations of ‘administrative costs’. This practice and the Council’s refusal to adopt an Interinstitutional Agreement led the EP to adopt a resolution on the guidelines for the 1995 budget, in which it insisted that the Council would have to state clearly how it was going to use funds for Joint Actions before Parliament would approve appropriations for this purpose.43 Council Decisions in 1995 indeed reflect an acceptance of EC funding, and thus of Parliamentary influence, but it remained clear that member states were still reluctant to accept more Parliamentary supervision over CFSP operations. However, since 1995 the situation has somewhat stabilized, and member states at least have to accept the budgetary influence of the EP on CFSP expenditure. In 1997 Parliament finally achieved an Interinstitutional Agreement on the financing of CFSP (replaced by the Agreement on budgetary discipline of 6 May 1999). These developments made it possible for the Amsterdam Treaty to do away the difference between administrative and operational expenditure in the TEU. Article 28 of the current Treaty stipulates that administrative as well as operational CFSP expenditure shall be charged to the budget of the European Communities. The only exceptions made concern operational expenditure arising from operations having military or defence implications (which in the view of certain member states do not allow for too much Community involvement) and cases where the Council unanimously decides that the operational expenditure is to be charged to the member states.

2.2.

The National Parliaments and CFSP

The fact that CFSP decisions are taken by an institution of the Union – the Council of Ministers – does not contradict the fact that this institution is composed of ministers who are accountable for their international actions to their own parliaments as well. In fact, through the national political parties, the EP political groups can attempt to counterbalance the absence of their formal power in foreign affairs.44 Nevertheless, the traditional prerogatives of the Executive in most member states in the field of foreign policy account for limited supervisory functions of the national par-

41 42

43 44

OJ C 315, 22 November 1993, p. 459. Cf. also J. Monar, supra note 38, p. 40. See the Financial Regulation of 21 December 1997, Article 21. OJ L 356, 31 December 1977, p. 9. Published in OJ C 25, April 1994, p. 33. D.M. Viola, supra note 34, p. 44.

225

Good Governance and EU Foreign, Security and Defence Policy

liaments.45 In none of the member states – except for Denmark46 – has CFSP decision making been subjected to prior parliamentary approval, which restricts the influence of parliament to discussing both the agenda of forthcoming Council meetings and the outcome. Thus, the Dutch Parliament accepted that they discuss CFSP issues with the Government on the basis of ‘annotated Council agendas and Reports of Council meetings’.47 The cooperation between the Minister for Foreign Affairs and Parliament’s Standing Committee on Foreign Affairs is indeed ‘as good as it can get’ on the basis of these procedures. It remains clear, however, that supervision by national parliaments is limited to one aspect only: the ex post facto control on the basis of decisions that were taken (or not taken) by the Council of Ministers. Hence, even the ultimate repercussion of a motion of no-confidence will not improve the supervisory possibilities of the national parliament, albeit that this control may have a preventive effect. Nevertheless, the national representatives at the Maastricht IGC adopted two declarations aiming at an increased involvement of national parliaments. Declaration No. 13 reads: ‘The Conference considers that it is important to encourage greater involvement of national Parliaments in the activities of the European Union. To this end, the exchange of information between the national Parliaments and the European Parliament should be stepped up. In this context, the governments of the Member States will ensure, inter alia, that national Parliaments receive Commission proposals for legislation in good time for information or possible examination. Similarly, the Conference considers that it is important for contacts between the national Parliaments and the European Parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of Parliament interested in the same issues’.

Furthermore, Declaration No. 14 adds that the European Parliament and the national parliaments may meet, as necessary, as a Conference of the Parliaments (or ‘Assises’) to be consulted on the main features of the European Union on the basis of reports by the Presidency and the Commission. The added value of these initiatives lies essentially in the increased possibilities for national parliaments to obtain information. It is doubtful, however, whether an increase in possibilities for supervision will result from the inter-parliamentary contacts. In the Netherlands, at least, this situation has resulted in an ongoing discussion on the need for parliamentary approval for decisions of international organizations, which by virtue of the Constitution (Art. 94) prevail over national

45

46

47

226

See on this issue for instance L. Henkin, Constitutionalism, Democracy and Foreign Affairs, New York, Columbia University Press, 1990; and L. Henkin, Parlement en buitenlands beleid, Publikaties van de Staatsrechtkring, No. 5, Zwolle, Tjeenk Willink, 1993. The Danish Minister can only vote in the Council on the basis of an explicit mandate given by the Danish Folketing. See the Documents of the Second Chamber, ‘Goedkeuring Maastricht’, Memorie van Antwoord, Kamerstukken II 1992-1993, 22 647 (R 1437), No. 13, p. 147.

Ramses A. Wessel

legislation whenever they have a generally binding character.48 Despite the available instruments to make use of this possibility in relation to decisions within the framework of the (former) Schengen Agreement, PJCC, and Title IV EC, no initiatives have been developed to extend this possibility to decision making in the area of CFSP.49 With regard to information to be provided to national parliaments, the Amsterdam IGC adopted a Protocol ‘on the role of national parliaments in the EU’. The Protocol focuses on improving the access of national parliaments to timely information, with a view to influencing their national governments under whatever national constitutional arrangements apply.50 In line with current practice, the Protocol calls for legislative proposals to be forwarded to national parliaments. The significance can be found in the fact that documents are henceforth no longer forwarded indirectly via national governments but directly to the national parliaments. Moreover, Commission proposals must be made available in good time (a minimum time-limit of six weeks), so that national parliaments can actually have the possibility of receiving them in time to discuss their content, before their government participates in the decision making procedure. However, CFSP decisions are almost never based on Commission proposals, but are prepared by the working groups and the Political Committee upon an initiative of the Presidency or any other member state. Therefore, in the current situation this improvement is of limited value and relates only to ‘foreign policy’ proposals of the Commission that find their basis in Community law. The conclusion that the Protocol excludes all CFSP documents seems to be justified.51 A second innovation in the Amsterdam Protocol concerns the right of the Conference of European Affairs Committees (COSAC) to make any contribution it deems appropriate for the attention of the institutions of the European Union, in particular on draft legal texts which representatives of governments of the member states may decide by common accord to forward to it, in view of the nature of their subject matter. Again, however, the Protocol does not seem to have the intention of including CFSP, as COSAC may only examine ‘any legislative proposal or initiative in relation to the establishment of an area of freedom, security and justice’, ‘legislative activities of the Union, notably in relation to the application of the principle of subsidiarity’, and ‘questions regarding fundamental rights’. This has led one ob-

48

49

50

51

See for instance: B.P. Vermeulen, ‘Slikken of stikken? De invloed van het parlement op het buitenlands beleid’, Staatscourant, 120, 29 June 1993. As for instance suggested by L. Besselink, ‘Tussen supranationaliteit en soevereiniteit: over het niet-communautaire recht van de Europese Unie’, in L.F.M. Besselink et al. (eds.), Europese Unie en nationale soevereiniteit, Publicaties van de Staatsrechtkring, Deventer, Tjeenk Willink, 1997, p. 125-150 at p. 150. Cf. D.M. Curtin, ‘The Fundamental Principle of Open Decision-Making and EU (Political) Citizenship’, in D. O’Keeffe and P. Twomey (eds.), Legal Issues of the Amsterdam Treaty, Oxford, Hart Publishers, 1999, p. 69-91. Cf. A. Maurer, supra note 20, p. 116.

227

Good Governance and EU Foreign, Security and Defence Policy

server to conclude that ‘democratic control of action in this field is completely excluded’.52

3.

Transparency of Decision Making and Access to Information

3.1.

Transparency of Decision Making by the Council

Effective supervision by the parliaments, or more directly by civil society, is hindered by the confidential and thus not too transparent nature of CFSP decision making in the Council. As Curtin stated: ‘[t]he term ‘transparency’ evokes the image of a clear pane of glass through which light can shine in an unrestrained fashion’. She continued that: ‘[t]transparency refers not only to access to government-held information by individuals and legislative assemblies (both the European Parliament and the national parliaments), but also, more widely, to open government as such (the question of opening up meetings, rule-making proceedings and governmental deliberations to the public)’.53

This idea does seem to be reflected in Article 1 of the new TEU that ‘decisions are taken as openly as possible’. It seems that this new rule should be used in interpreting the Council’s Rules of Procedure, which in Article 5 provide that: ‘Meetings of the Council shall not be public except in the cases referred to in Article 8’.54 According to Article 8, Council deliberations on acts to be adopted in accordance with the co-decision procedure are open to the public by way of transmission of the Council meeting by audiovisual means. In addition, the Council shall ‘as far as possible’ inform the public in advance of the dates and approximate time on which such audiovisual transmissions will take place. Paragraphs 2 and 3 of Article 8 furthermore provide that the General Affairs and External Relations Council holds a public policy debate every year and that the Council shall hold at least one public debate on important new legislative proposals. All in all, the situation seems to be improving, at least where legislative decisions are concerned. It should be kept in mind, however, that CFSP decisions are regularly considered not to have a legislative nature. Moreover, it is obvious that CFSP decisions are never adopted through the co-decision procedure of Article 251 EC. This means that the regime is only relevant in relation to the Community part of external policy decisions. In addition, the results of votes on CFSP decisions are made public only in case of a unanimous Council or COREPER decision taken at the request of one of its members.55 This provision reflects that, irrespective of Article 1 of the EU Treaty, the transparency of decision making is not the rule in CFSP.

52 53 54

55

228

Ibidem, p. 117. D.M. Curtin, supra note 50, p. 66. Council Decision of 22 March 2004 adopting the Council’s Rules of Procedure (2004/338/EC, Euratom), OJ L 106, 15.04.2004. Article 9, para 2 of the Council’s Rules of Procedure.

Ramses A. Wessel

3.2.

Access to Information on Foreign, Security and Defence Policy

Apart from this procedural secrecy where decision making is concerned, the access to documents and information from the very beginning of CFSP also depends on the Council’s willingness to submit information on the existence of documents. Article 18, paragraph 3, of the 1992 Rules of Procedure provided that the decision to publish the CFSP decisions in the Official Journal was in each case to be taken by the Council acting unanimously when the said instruments were adopted. This of course implied that any single member state can object to the publication of CFSP decisions and prevent it. Irrespective of the discussion on openness of information since then, this regime has not been modified. The 2004 Rules of Procedure still allow the Council and COREPER to decide unanimously, on a case by case basis, whether CFSP decisions should be published in the Official Journal (Art. 17, paras. 3 and 4). When they are not published, Common Strategies, Joint Actions and Common Positions are to be notified to their addressees (Art. 18, para. 2). However, in this way many sui generis CFSP decisions as well as Resolutions run the risk of becoming invisible to the public. The Amsterdam Treaty modified the EC Treaty in which Article 255, paragraph 1, now provides: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraph 2 and 3’.

Indeed paragraphs 2 and 3 reveal that there is still no unrestrained access to information, since limits on grounds of public or private interest are to be determined by the Council and the European Parliament (co-decision) within two years of the entry into force of the Amsterdam Treaty (paragraph 2) and each institution shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents (paragraph 3).56 Nevertheless, it is held that the fact that this obligation is now laid down in the text of the Treaty itself was a step forward with regard to the previous status quo, where the rather reluctant practice of several institutions was based upon an interinstitutional Code of Conduct, implemented separately by the three institutions in question.57 For the purpose of the present contribution, however, it is striking that while Article 1 TEU refers to decisions that are taken as openly as possible and as closely as possible to the citizen, the right of access to documents is only implemented in the EC Treaty and not in the Union Treaty. According to Curtin this seems to be an attempt to deny the fundamental status of the individual’s right to information.58 On 56 57

58

The Council has done so in Annex II of its Rules of Procedure. D.M. Curtin, supra note 50, p. 68. A reason for Curtin to note this as an improvement is the ‘non-binding’ nature of the Code of Conduct. In Curtin’s interpretation the choice for Article 255 EC does not limit the greatest possible level of openness aimed at by Article 1 TEU. The fact that only three institutions are menÆ

229

Good Governance and EU Foreign, Security and Defence Policy

the other hand, it seems clear that placing this right in the EC Treaty does not prevent its Union-wide application. Article 1 TEU, as the overarching general principle, explicitly refers to the new stage in the process of creating an ever closer Union among the peoples of Europe and is obviously meant to cover the whole Union. Moreover, Article 255 EC is explicitly referred to in Article 28 EU as one of the EC provisions that shall apply to CFSP and it is presented in the EC Treaty as one of the ‘Provisions common to several institutions’.59 As the Court of First Instance confirmed in the Svenska Journalistförbundet case in 1998,60 the fact that documents deal with matters that fall under Title V of the Treaty (CFSP) does not affect the jurisdiction of the Court. In that case Decision 93/731/EC on public access to Council documents was said to apply to all Council documents, irrespective of their content. This was confirmed in the Hautala case, a year later, in which the confidentiality of a CFSP document was questioned.61 On 14 November 1996, the Finnish Member of the European Parliament, Ms. Heidi Hautala, asked a written question to the Council in order to seek clarification on the criteria which have been adopted at EU level for the export of conventional arms. The Council answered that the member states had agreed on common criteria with regard to arms exports in 1991 and 1992 and that the decision as to whether an authorization can be granted for exports and the procedures in that context, is governed by the national legislation of the member states. The Council also referred to a report from the Political Committee on Conventional Arms Exports, adopted on 14-15 November 1996. A request from Ms. Haulata to obtain access to this report was denied by the Council because the report would contain ‘highly sensitive information, disclosure of which would undermine the protection of the public interests, as regards public security’. In response to a confirmatory application by Ms. Hautala the Council added that ‘disclosure of the report in question could be harmful for the EU’s relations with third countries’. Other arguments used by the Council included the fact that the document was exchanged via the COREU network and was therefore of a confidential nature, and the fact that the report was drafted for internal use and not intended to be made public. The Court of First Instance held that the Council has a certain discretion which is connected with the political responsibilities conferred on it by Title V of the Treaty and that it must determine the possible consequences which the disclosure of documents may have for the international relations of the Union. In those circum-

59 60 61

230

tioned does not rule out that other institutions, agencies and organs with rule-making activities are subject to the general principles laid down in Article 1 TEU. In addition, limiting the right of access to ‘documents’ does not exclude information contained in electronic form. Finally, the term ‘documents’ in Article 255 is not to be interpreted as referring to ‘documents originating from the institutions’, but rather to all incoming documents. In short, as a matter of general principle all the institutions and agencies and other EU bodies should be covered by the general obligation to provide extensive access to all documents in their possession (cf. also Case C-58/94, The Netherlands v. Council, and the Ombudsman’s Annual Report for 1996). Regarding PJCC a similar reference can be found in Article 41 TEU. Case T-174/95 Svenska Journalistförbundet v. Council [1998] ECR II-2289, paras. 81-82. Case T-14/98, Heidi Hautala MEP v. Council of the European Union [1999] ECR II-2489.

Ramses A. Wessel

stances, any review by the CFI must be limited ‘to verifying whether the procedural rules have been complied with, the contested decision is properly reasoned, and the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers’ (para. 72). The discretion of the Council is, however, not unrestricted. Both in the Svenska Journalistförbundet and the Hautala cases, the Court referred to the objective of the Decision of access to documents to give effect to the principle of the largest possible access for citizens to information with a view to strengthening the democratic character of the institutions and the trust of the public in the administration. Exceptions, therefore, should be construed and applied strictly, in a manner which does not defeat the application of the general rule. The Council is even obliged to examine whether partial access should be granted to the information not covered by the exceptions. ‘In that connection, the principle of proportionality would allow the Council, in particular cases where the volume of the document or the passages to be removed would give rise to an unreasonable amount of administrative work, to balance the interest in public access to those fragmentary parts against the burden of work so caused. The Council could thus, in those particular cases, safeguard the interests of good administration’ (para. 86).

More recent cases confirm the view that possible damage to the relations between the EU and third states may not automatically form a reason for the Council to deny public access to documents. In the case Kuijer I, the applicant – a university lecturer and researcher in asylum and immigration matters – requested access to certain documents containing information concerning the situation in third countries or regions from which many asylum seekers originate or in which they reside.62 The Council had denied access, claiming that the reports contain very sensitive information about the political, economic and social situation in the countries. According to the Council the disclosure of this information might damage the relations between the EU and these countries. The Court (of First Instance) held that the decision of the Council did not satisfy the requirements governing the statement of reasons under Article 190 EC as it did not explain the reasons for denying access to the individual documents that were requested. Thus, the Council produced a new decision, in which it explained that the reports had certain features in common which made it necessary to treat them in the same way. In addition, the Council repeated that disclosure of the information was potentially damaging to the Union’s relations with the countries in question. For Kuijer this decision formed a reason to commence a procedure for annulment once again. In this second case (Kuijer II), the Court for the first time considered the contents of the documents at issue.63 Kuijer II is important for the future possibilities of citizens to obtain access to CFSP documents. In the most crucial paragraphs (60-64) the Court held: 62 63

Case T-188/98, Aldo Kuijer v. Council of the European Union, [2000] ECR II-1959. Case T-211/00, Aldo Kuijer v. Council of the European Union, [2002] ECR II-485. This time it was easier for the Court as – on the basis of the amended Rules of Procedure of 28 November 2002 – it could itself actually ask for a disclosure of the documents in order to study them.

231

Good Governance and EU Foreign, Security and Defence Policy

‘[…] the mere fact that certain documents contain information or negative statements about a political situation, or the protection of human rights, in a third country does not necessarily mean that access to them may be denied on the basis that there is a risk that the public interest may be undermined. […] As regards their contents, the reports at issue do not concern directly or primarily the relations of the European Union with the countries concerned. […] The information frequently relates to facts which have already been made public, for example how the political, economic or social situation has developed in a country concerned’.

Nevertheless, these cases have not prevented the Council from adopting a rather restrictive set of security regulations on 19 March 2001 (the judgement in Kuijer I was on 6 April 2000). On 26 July 2000 COREPER already adopted a decision drafted by the General Secretary of the Council, Mr. Solana, to amend the 1993 Decision of access to documents. This ‘Solana Decision’ was formally approved by the Council (through a written procedure) on 14 August 2000 and excluded documents related to European Security and Defence Policy when classified as TRÈS SECRET/TOP SECRET, SECRET or CONFIDENTIAL, from the general rules on public access to documents.64 Top secret documents were documents whose disclosure ‘could cause extremely serious prejudice to the essential interests of the Union’. The strict security arrangements were thought to form a necessary element of the Interim Security Arrangements agreed on between the Secretaries General of NATO and the EU on 26 July 2000 to, inter alia, protect and safeguard information and material from NATO present at the EU’s Council Secretariat.65 A major problem concerning transparency was caused by the fact that the classified documents would not be referred to in the public register and that requests for access would no longer be considered by the Information Working Party, but by special security-vetted personnel. The Solana Decision was severely criticized by the European Parliament (partly because of the ‘secret’ adoption procedure during the time that Parliament was not in session) and by some member states. The EP and the Netherlands even started (separate) proceedings before the CFI against the Decision. In 2001, however, the Council agreed on new regulations, which led the Netherlands and the EP to withdraw their cases. On 19 March 2001, the Council replaced the Solana Decision by adopting a new set of security regulations which brought the classification rules into line with NATO standards.66 In fact this decision anticipated the adoption of the new general Regulation regarding public access to European Parliament, Council and Commission documents, which was adopted two months later.67 It is particularly in Article 9 of the new Regulation in which the current regime on access

64 65

66 67

232

Decision 2000/527/EC, OJ L 212/9, 23.08.2000. See the exchange of letters between Solana and Robertson of 26.7.00, published by Statewatch (). Council Decision 2001/264/EC of 19 March 2001, OJ L 101/1, 11.4.2001. Regulation (EC) No. 1049/2001 of 30 May 2001, OJ L 145/43, 31.5.2001. See on this Regulation H.R. Kranenborg, ‘De Eurowob in de hand, de EU transparent?’, Tijdschrift voor Europees en Economisch recht, 2002, p. 447-456.

Ramses A. Wessel

to CFSP documents can be found. This provision – entitled ‘Treatment of sensitive documents’ – still echoes the Solana Decision as it introduces a special treatment for: ‘documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIAL’ in accordance with the rules of the institutions concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters’.

Article 4(1)(a) provides that the institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards: public security; defence and military matters; international relations; and the financial, monetary or economic policy of the Community or a member state. The current regime thus reflects a not too transparent system, in which sensitive documents are exempted from the regular rules on access to documents. They are to be handled by special (‘vetted’) personnel only (Art. 9(2)), and are recorded in the register or released only with the consent of the originator (para. 3). When a document is to be classified is decided by the institutions themselves on the basis of their own definition of ‘sensitivity’. The conditions for and limitations on public access cannot be found in the Regulation itself (as seems to be required by Article 255 TEU), but in the various special arrangements adopted by the Institutions (like the Council Decision of 19 March 2001). The Regulation even goes beyond the Solana Decision as it is not restricted to foreign, security and defence documents, but covers international relations in general and even the financial, monetary or economic policy of the Community or a member state. The Council’s security decision makes clear that the regulations not only concern the Institutions, but even the member states. Article 2(2) of this Decision obligates the member states to take the appropriate measures to ensure that, when EU-classified information is handled, the regulations are respected. The legality of this provision in a decision which is based on Article 207(3) EC (allowing the Council to adopt its internal Rules of Procedure) has been questioned.68 Nevertheless, to oblige member states to consult with the institutions concerned whenever they receive a request for a document in their possession, returns in Article 5 of the Regulation. All in all, the conclusion seems justified that the ambitions of the Union in the area of security and defence policy – for the fulfilment of which close cooperation with NATO is needed – have resulted in a stricter regime when access to sensitive documents is concerned. In March 2003 this new regime was laid down in an Agreement on the Security of Information between the EU and NATO.69 In itself, this is something we are used to when access to the documents of national Ministries for Foreign Affairs or Defence are concerned, and in that respect it is a logical 68

69

See in general on this issue: M. de Leeuw, Open Government in the EU: A Legal Analysis of a Fundamental Principle, dissertation European University Institute Florence, 2003. NATO Press Release (2003)022, 14 March 2003; and EU Council Decision 2003/211/CFSP of 24 February 2003, OJ L 80, 27.3.2003, which contains the text of the Agreement.

233

Good Governance and EU Foreign, Security and Defence Policy

consequence of the development of the Union towards a security organization. On the other hand, it is clear that the current regime is not too transparent concerning the reasons to classify the documents and it even entails a potential to broaden the scope of secrecy now that vague terms such as ‘public security’ and even the financial, monetary and economic policy of the Community or a member state are explicit reasons to deny access to documents.

4.

Judicial Scrutiny of CFSP Decisions and Procedures

4.1.

The European Court of Justice

Limited parliamentary control may to some extent be compensated by judicial control. With respect to CFSP (Title V), however, the powers of the Court of Justice are excluded by Article 46 TEU. This was in line with the preference of most member states at the time of the Maastricht IGC because of possible integrative actions by the Court in this sensitive area. Even the Commission’s opinion reflected a clear reservation as it pointed to highly political and sensitive dimensions ‘des actions mises en œuvre au cours de l’exercice de la politique étrangère ou de sécurité commune, qui ne sont pas soumises, en règle générale, au contrôle judiciaire’.70

Or, as Everling put at the time: ‘L’exclusion de la compétence de la Cour, prévue à l’article L [now 46; RAW] du traité sur l’Union, pour le contrôle des activités de l’Union en dehors des domaines des Communautés, est l’expression d’un déclin de confiance du public envers la jurisprudence de la Cour. Quelques formulations pour le moins étonnantes du récent arrêt de la Cour constitutionnelle allemand concernant le traité de Maastricht confirment cette impression’.71

On the other hand, the first Dutch Draft Treaty at the time allowed the Court to ‘review [...] the legality of the application of the procedures for deciding upon the joint action referred to in this Title of the Treaty’, but this provision lacked the necessary consensus and it did not make it to the final Draft.72

70

71

72

234

Working Document of the Commission SEC (91) 500, 15 May 1991, p. 41, quoted by L. Pliakos, ‘La nauture juridique de l’Union européenne’, 2 Revue trimestrielle de droit européen, 1993, p. 208-213, at p. 199, note 56. U. Everling, ‘L’avenir de l’organisation jurisdictionelle de l’Union européenne’, in G. Versanden (ed.), La Réforme du Système Jurisdictionel Communautaire, Bruxelles, Éditions de l’Université de Brussels, 1994, p. 19. See for the Draft Treaties: F. Laursen and S. Vanhoonacker, F. Laursen and S. Vanhoonacker (eds.), The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community, Maastricht, EIPA, 1992.

Ramses A. Wessel

This is not to say that the CFSP provisions are not at all relevant for the European Court of Justice.73 According to Article 47 TEU, nothing in the Treaty shall affect the Community Treaties or the subsequent Treaties and Acts modifying or supplementing them. On the basis of Article 46, this provision falls under the competence of the Court. This implies that the Court has been given the competence to guard the preservation of the acquis communautaire.74 One may argue that on this basis the Court is competent to take into account CFSP decisions that are related to Community policies, and that it may even annul (parts of) CFSP decisions that would harm the acquis communautaire.75 It has even been argued that the adjudication of such cases might entail an incidental review of the guidelines of the European Council on their compatibility with EC law, thus subjecting the European Council to the indirect scrutiny of the Court of Justice,76 but the Court’s case law as reflected in, for instance, the Roujansky and Bonnamy cases seems to exclude this possibility.77 A role of the Court seems to be permitted, or indeed required, whenever member states evade Community procedures by dealing with certain issues under CFSP and when, in particular, these decisions would conflict with the loyalty obligation as laid down in Article 10 of the EC Treaty. In those cases the Court would be obliged to intervene – perhaps upon a request from the Commission. The loyalty obligation in Article 10 EC extends to the external relations of the Community, including the actions that are explicitly linked to CFSP operations. This would mean that Article 10 EC prohibits actions outside the Community framework that could harm the Community’s development, even when these actions are taken within the broader framework of the European Union. Related problems may occur when the implementation of CFSP obligations by national authorities gives rise to a problem 73

74

75

76

77

Cf. already the Court’s opinion on this matter in its Report on the implementation of the Treaty on European Union, 1995; and the Report of the EP’s Commission on Institutional Affairs (Rothley Report) on the Role of the European Court of Justice, A3-0228/93, 6 July 1993. This is a reason why Edward stated that ‘Article L [now 46; RAW] constitutes the rule of recognition of the Community legal order’, since ‘from a legal point of view, Article L can be seen as defining the line of demarcation between the aspects of Maastricht that are ‘supra-state’ and legally binding, on the one hand, and those that are ‘intergovernmental’ and purely diplomatic, on the other’. D.A.O. Edward, ‘Is Art. L of the Maastricht Treaty workable?’, Europarecht, supplement 2, 1995, p. 23-25, at p. 23. This rather simplistic statement is obviously in contrast to the findings in the present contribution. Cf. also M.R Eaton, ‘Common Foreign and Security Policy’, in D. O’Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty, London, Wiley Chancery Law, 1994, p. 215-226, at p. 221 and S. Peers, ‘National Security and European Law’, Yearbook of European Law, 1996/1997, p. 363-404, at p. 398-399. U. Everling, ‘Reflections on the Structure of the European Union’, Common Market Law Review, 1992, p. 1053-1077, at p. 1063; P.J.G. Kapteyn, ‘Inleidende beschouwingen over het Verdrag betreffende de Europese Unie’, Tijdschrift voor Europees en Economisch recht, 1992, p. 667673, at p. 671 and T. Heukels and J. de Zwaan, supra note 29, p. 224. Cases C-253/94p and C-264/94p respectively. The Court in these cases ruled that decisions of the European Council cannot be challenged by a request for annulment. See also D.M. Curtin and R.H. van Ooik, ‘Een Hof van Justitie van de Europese Unie?’, SEW, Tijdschrift voor Europees en Economisch recht, 1999, p. 24-38, at p. 27.

235

Good Governance and EU Foreign, Security and Defence Policy

of Community law.78 Finally, with regard to the budgetary competences of the European Parliament, one could even envisage this institution bringing a case before the Court concerning the misuse of certain EC funds for CFSP purposes when a CFSP decision is prima facie incompatible with Community budgetary regulations. These observations underline that the Court of Justice is the ultimate arbiter in deciding where the line of demarcation between the Union’s issue-areas lies. Examples of cases in which the Court of Justice has declared its own competence in relation to foreign policy issues can in particular be found in the judgements on the Community’s sanctions legislation. Since 1995 a number of cases have been referred to the Court by national courts in relation to the Yugoslav sanctions and some plaintiffs have initiated legal proceedings against the Council of Ministers for damage which they suffered pursuant to the sanctions against Iraq. Many of these cases challenged the national implementation of Community legislation (Bosphorus, Centro-com and Ebony Maritime), while the validity of Community legislation withdrawing preferences from Yugoslavia in 1991 has also been challenged (Racke).79 The Centro-com judgement in particular clarified a number of long-disputed issues concerning the relationship between sanctions and the EC’s common commercial policy and the question of whether sanctions were commercial policy, or at least affected commercial policy. Despite the recognition by the Court that member states retained national competence over foreign and security policy, it pointed out that sanctions are a part of Community commercial policy and that national competences in the field of foreign policy still had to be exercised in accordance with Community law whenever they concern the imposition of economic sanctions. In addition, we have seen that the Court made clear that wherever access to information is concerned no distinction is made on the basis of the content of the requested document (the Svenska Journalistförbundet case).80 Despite the fact that the case concerned access to a document related to Cooperation in Justice and Home Affairs (CJHA), the language used in the judgement enabled it to be applied to CFSP as well. The Court (of First Instance) based its argument on the abovementioned Decision 93/731/EC on public access to Council documents and continued: ‘The fact that the Court has, by virtue of Article L [now Article 46; RAW] of the EU Treaty, no jurisdiction to review the legality of measures adopted under Title VI does not curtail its jurisdiction in the matter of public access to those measures. The assess78

79

80

236

See also H.G. Krenzler and H.C. Schneider, ‘Die Gemeinsame Außen- und Sicherheitspolitik der Europäischen Union – Zur Frage der Kohärenz’, 2 Europarecht, 1994, p. 144-161, at p. 157159; M. Pechstein, ‘Das Kohärenzgebot als entscheidende Integrationsdimension der Europäischen Union’, 3 Europarecht, 1995, p. 247-258, at p. 258 and P. Gilsdorf, ’Les réserves de sécurité du Traité CEE, à la lumière du Traté sur l’Union Européenne’, 374 Revue du Marché commun et de l’Union européenne, 1994, p. 17-25. Cases C-84/95, Bosphorus; Case C-124/95, Centro-com; C-177/95, Ebony Maritime; and C162/96, Racke. See for an analysis of these cases: S. Peers, ‘Common Foreign and Security Policy 1995-6’, Yearbook of European Law, 1996/1997, p. 611-644. More implicitly this was already accepted by the Court in Case T-194/94, Carvel. Cf. D.M. Curtin and R.H. van Ooik, supra note 77, p. 25.

Ramses A. Wessel

ment of the legality of the contested decision is based upon its jurisdiction to review the legality of decisions of the Council taken under Decision 93/731, on the basis of Article 173 [now Article 230; RAW] of the EC Treaty, and does not in any way bear upon the intergovernmental cooperation in the spheres of Justice and Home Affairs as such’.81

This implies that CFSP documents would be treated in the same way as Community documents. Another example of the Court’s willingness to review the legality of a Council act adopted under a non-Community provision can be found in the Airport transit visas case.82 In this case the Court declared an annulment action under Article 173 EC (now Art. 230) to be admissible for the purposes of reviewing the content of a CJHA Joint Action in the light of ex Article 100c EC but subsequently dismissed the action as a matter of substance. In the final analysis, however, the Court did not shy away from the possibility that it would actually annul an act adopted in the context of the non-Community areas pursuant to Article 173 EC. The Court made clear that it is prepared to police the activity of the Council within the European Union as a whole. This implies that even CFSP Decisions are not ‘untouchable’ when it is claimed that a Community legal basis should have been used. The Court’s competence in this regard is based on Article 47 TEU, which makes no distinction between CFSP and Police and Judicial Cooperation in Criminal Matters (PJCC), but instead provides that nothing in the TEU shall affect the Community treaties.83 Nevertheless, challenging CFSP decisions as such before the Court (of First Instance) remains to be excluded. While recent case law (the Segi case) seems to confirm the willingness of the Court to indeed judge the legal basis of a decision, legal protection remains absent where, for instance, individuals challenge their presence on a list of terrorists annexed to a CFSP Common Position.84 Finally, it has been argued, following the Foto-Frost line of reasoning, that this role of the Court implies that a national court must refer a question on the validity of a measure adopted in the context of CFSP and PJCC under the Article 234 EC mechanism.85 Indeed the possible use of Article 234 EC is not a priori excluded in cases where the legal basis of a CFSP Decision that has been implemented on the national level is questioned by individuals before a national court.86 While recent case law thus indicates that the Court of Justice is increasingly seen as the Court of the European Union,87 it remains clear that the current regime 81 82 83 84

85

86 87

Para. 85. Case C-170/96, Commission v. Council. Cf. D.M. Curtin and R.H. van Ooik, supra note 77. Case T-338/02, Segi a.o. Similar cases are currently pending before the Court of First Instance: T-318/01, Olthman; T-315.01, Kadi; T-306/01, Aden a.o; T-228/02, Organisation des Modjahedines du people d’Iran; T-47/03, T-110/03, T-150/03 and T-405/03, Sison. Case 314/85, Foto-Frost. See D.M. Curtin and I.F. Dekker, ‘The European Union as a ‘Layered’ International Organization: Institutional Unity in Disguise’, in P. Craig and G. De Búrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press,1999, p. 83-136, at p. 47. Along the same lines D.M. Curtin and R.H. van Ooik, supra note 77, p. 27. Ibidem; and D.M. Curtin and I.F. Dekker, supra note 85, p. 27

237

Good Governance and EU Foreign, Security and Defence Policy

regarding legal protection reveals a number of shortcomings. The most obvious lack of judicial control is apparent when competences and decision making procedures within the CFSP legal order are at stake. In that case, there are no possibilities for the Court to scrutinize either the decision making procedures or the legal basis chosen for a CFSP decision. This means, for instance, that neither the Commission, nor the European Parliament can commence a procedure before the Court in cases where the Council has ignored their rights and competences in CFSP decision making procedures. As far as the legal basis for decisions is concerned, there are no possibilities for the institutions or the member states to request the opinion of the Court. It is important to note that this brings about a situation in which the interpretation and implementation of the CFSP provisions (including the procedures to be followed) is left entirely to the Council. Keeping in mind their preference for ‘intergovernmental’ cooperation where CFSP is concerned, it may be understandable that member states at the time of the negotiations had the strong desire to prevent a body of ‘Union law’ coming into being by way of judicial activism on the part of the European Court of Justice,88 but it is less understandable that they were also reluctant to allow for judicial control of the procedural arrangements they explicitly agreed upon (although it is acknowledged that it may be difficult to unlink procedures and content). Furthermore, the non-justiciability of the consistency requirement in Article 3 TEU results in a situation in which this requirement is reduced (as far as judicial control is concerned) to the extent that it is covered by Article 47 (preservation of the acquis communautaire). This means, first of all, that the CFSP decisions cannot be adjudicated as to their conformity with the overall consistency of the Union’s external policy (that is in relation to other CFSP decisions or PJCC decisions);89 and, secondly, that the Court is not allowed to view Community decisions in relation to the prerogatives or obligations of the member states in the areas of the Union.90 This leads us to conclude that the Court of Justice is left with a limited set of possibilities. First of all, the Court is allowed to review the required compatibility of CFSP measures of the Council with Community law, including the choice of legal basis (EC or CFSP) and the consistency of foreign policy measures (‘policing the boundaries’). This includes the Court’s use of the non-judiciable CFSP provisions as aids of interpretation.91 Secondly, it seems clear that the Court has jurisdiction whenever the Council makes use of ‘hybrid’ acts, covering both matters governed by CFSP as well as matters governed by the Community Treaties.92 Examples could be found in the area of economic sanctions, development policy or trade policy. And, finally, it is obvious that whenever issues fall under the Community’s competence, Article 46 TEU cannot be interpreted so as to affect the existing powers of the Court related to external policy issues. This means that the Court’s competences for instance extend to international agreements concluded by the Community (Art. 300 88 89 90 91 92

238

Cf. N. Neuwahl, supra note 30, p. 244. See also M. Pechstein, supra note 78, p. 258. See more extensively R.A. Wessel, supra note 5. Cf. Case C-473/93, Commission v. Luxembourg, on Article F, para. 1 TEU (now Art. 6). See also N. Neuwahl, supra note 30, p. 246.

Ramses A. Wessel

EC, including mixed agreements), to trade policy (Art. 133 EC), visas, asylum and immigration policy (Title IV EC), the human rights principles in Article 6, paragraph 2 TEU as general principles of Community law,93 or development policy (Title XX EC) – regardless of possible relations of measures in these areas with CFSP issues. In fact, because of the close connection between some CFSP and EC decisions one comes across references to CFSP decisions in judgments of the Court (of first instance) more often. The judgements concerning sanctions against the former Yugoslavia and against individuals on the basis of anti-terrorism measures form a case in point. After all, in these situations the Community measures found a direct source in CFSP common positions.94

4.2.

The National Courts

Already in Van Gend & Loos, the Court of Justice made clear that ‘the object of the EEC is to establish a common market the operation of which directly affects the subjects of the Community’. The national courts in particular are entrusted with ensuring the legal protection of citizens, a role for the courts which in the view of the Court of Justice follows from the cooperation principle of Article 10 EC95 and from the task assigned to the Court under Article 234 EC (the preliminary rulings), ‘the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, [and which] confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals’.96

This resulted in the rule that: ‘every national court must, in a case within its jurisdiction, apply Community law in its entirety [...] and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule’.97

It would be interesting to know the Court’s views on the possibility of CFSP provisions being invoked before national courts. Although the issue is not agreed upon in the Treaty, it is generally held that CFSP decisions are not ‘self-executing’, in the sense that they may be relied upon by national courts.98 It is indeed difficult to find provisions in the CFSP decisions containing rights and/or obligations for individuals. This is not to say that individuals cannot be affected at all by CFSP decisions. Despite the fact that practice has not yet called for conclusive statements in this respect, there are no reasons to exclude the direct effect of CFSP decisions in general. 93 94

95 96 97 98

Cf. in this line also the Opinion of Advocate General Jacobs in the Bosphorus case (C-84/95). See in particular Cases T-306/01 R, Aden; T-47/03 R, Sison; and C-317/00 P(R), ‘Invest’ Import and Export. Case 33/76, Rewe Zentralfinanz et al. v. Landwirtschaftskammer für das Saarland. Case 26/62, Van Gend & Loos, p. 12. Case 106/77, Simmenthal, p. 644. See for instance D.M. Curtin and R.H. van Ooik, supra note 77, p. 30-31.

239

Good Governance and EU Foreign, Security and Defence Policy

In general, rules in the legal order of either the member states or an international organization may provide for international norms to be applied in relation to certain legal subjects only (e.g. EC Directives) or only after a transformation into national law. The notion of direct effect may be distinguished from this applicability in that it only becomes relevant when norms do not have the effect they purport to have and citizens wish to invoke a norm before a national judge. Even if a norm is directly applicable – in the sense that it has a function between the legal subjects within a national legal order – there may be reasons not to allow individuals to invoke it in a court of law. This means that in order to establish the status of CFSP norms in national legal orders, we have to look for clues in either the international order, the national legal orders, or the EU legal order indicating the direct applicability, the direct effect and the hierarchical status of CFSP norms. General international law, obviously, is silent about this issue and doctrine generally reflects the principle that states are free to decide on how they want to give effect to international law in their national legal orders.99 The constitutions of the fifteen EU member states indeed differ in this respect. But, as became clear from the development of the European Community, this issue can authoritatively be settled by norms in the supranational order of an international organization. The principles of direct applicability, direct effect and supremacy were recognized by the European Court of Justice (ECJ) as forming part of the ‘new legal order’ regulating the relationship between the EC and its member states, as well as with the legal subjects within the states (natural and legal persons). Unlike the EC, we have seen that the non-Community parts of the Union largely fall outside the reach of the ECJ. This means that, for the time being, we cannot rely on authoritative interpretations of the Court regarding the status of CFSP norms in the national legal orders. However, the Treaty itself is not completely silent in this respect. In a recent study, Curtin and Dekker claim that, in principle, Union law is directly applicable in the national legal orders of the member states.100 They base this conclusion on the fact that with regard to the new types of EU decisions introduced by the Amsterdam Treaty, the ‘framework decisions’ and ‘decisions’, the Treaty explicitly provides that they ‘shall not entail direct effect’ (Art. 35 TEU). This provision would only make sense when these types of decision could in principle have direct effect. Irrespective of the inherent danger in using a contrario arguments, its acceptance would provide an argument in favour of the direct applicability of EU norms in general, since the exclusion of direct effect only becomes relevant in the case of direct applicability. Although this example is drawn from the provision of police and judicial cooperation and not from the provisions of foreign and security policy, there is no compelling reason to differentiate between the two substantive Union areas in this respect. The direct applicability of CFSP norms would then result in the possibility – 99

100

240

See for instance A. Cassese, International Law, Oxford, Oxford University Press, 2001, chapter 8. D.M. Curtin and I.F. Dekker, ‘The Constitutional Structure of the European Union: Some Reflections on Vertical Unity-in-Diversity’, in P. Baumont, C. Lyons and N. Walker (eds.), Convergence and Divergence in European Public Law, Oxford, Hart Publishing, 2002, p. 59-78.

Ramses A. Wessel

and even the necessity – of using these norms in the relationships between all legal subjects within the national legal order. Administrative as well as judicial organs could invoke them, but the same holds true for citizens and companies in their mutual relations. This is not to say that all norms by definition could be invoked in national court proceedings. Just as with Community norms, this would depend on the nature of the norm (sufficiently clear and precise), which in this case would ultimately be decided by the national courts. Curtin and Dekker claim that Union norms, at least, could have an ‘indirect effect’, meaning that ‘all national authorities have the obligation to interpret national legislation and other measures as much as possible in the light of the wording and purpose of valid Union law’.101 This, however, implies an acceptance of the supremacy of Union law over national law. After all, ‘indirect effect’ only becomes relevant in the case of a (possible) conflict between an EU and a national norm. Curtin and Dekker, more or less implicitly, base this supremacy on the principle of loyalty, as laid down in Article 10 EC as one of the leading principles in the constitution of the Union entailing an obligation for national authorities to interpret national law as far as possible in conformity with these decisions (only limited by the restrictions imposed by the ECJ regarding the application of the principle of indirect effect).102 It is probably too early to come up with definite statements like these regarding the effect of CFSP norms in the national legal orders. Nevertheless, direct applicability in the more limited definition presented earlier (using the norms in the relationships between all legal subjects within the national legal order) seems to follow from all of the above assumptions. However, it is generally held that CFSP decisions are not directly effective, in the sense that they may be relied upon by national courts.103 Regardless of the undetermined status of CFSP provisions in the Treaty on European Union, national constitutional systems may nevertheless offer national courts the opportunity to allow individuals to invoke directly effective provisions in cases brought before them. Thus, the Dutch Constitution, for instance, provides in Article 93 that provisions in treaties or in decisions of international organizations have binding force in the Dutch legal order when they are directly effective. The latter question is decided upon by the courts. Examples of potentially directly effective provisions may be found in the sanction decisions, although the actual obligations in these cases are mostly laid down in Community Regulations (which may be invoked by individuals on the basis of the EC rules on direct effect). Some CFSP decisions imposing sanctions, however, do not require a follow-up in the form of an EC Regulation, such as the decisions to impose an arms embargo on Afghanistan, Burma/Myanmar, Nigeria or Sudan.104 In 101

102

103 104

Ibidem. See on the principle of indirect effect for instance G. Betlem, ‘The Principle of Indirect Effect of Community Law’, European Public Law, 1995, p. 1. In particular the principle of non-retroactivity in criminal liability. See for instance P. Craig and G. De Búrca, EU Law: Text, Cases and Materials, Oxford, Oxford University Press, 2003, p. 211-220. See for instance D.M. Curtin and R.H. van Ooik, supra note 77, p. 30-31. Common Positions 96/746/CFSP, 96/635/CFSP, 95/515/CFSP, and 94/165/CFSP respectively.

241

Good Governance and EU Foreign, Security and Defence Policy

these cases it would be the CFSP decision itself that would need to be invoked before a national court. The same holds true regarding CFSP decisions establishing criteria or exceptions with respect to sanctions imposed on third countries. Common Position 95/544/CFSP, for instance, provided inter alia for an interruption of all contacts with Nigeria in the field of sports through the denial of visas to official delegations and national teams. Unlike other provisions in this Common Provision – which obligate member states to take ‘in accordance with national law such measures as are appropriate’ – this provision does not seem to be in need of national implementation measures. Another example is Council Decision 97/820/CFSP, allowing for member states to make exceptions to the sanctions imposed on Nigeria. On the basis of this decision and subject to certain conditions, member states may derogate from these rules. A final situation in which national courts could become involved in CFSP issues, would arise in cases of an (alleged) liability of member states being brought up. In cases where neither the Communities nor the European Union could be held liable for decisions taken by the Council in the area of CFSP, third states or individuals will have to turn to the national courts of the member states to seek justice. Situations in this respect could for instance arise whenever member states cause damage in the course of an EU action (such as in the case of the military missions of the Union in Macedonia or Congo) or when member states are held liable for breaches of an agreement concluded by the Union on the basis of Article 24 TEU. The main problem, however, is that all decisions imposing sanctions – EC as well as CFSP – are normally transposed into national legislation. Nevertheless, the original CFSP decision could play a role in a proceeding whenever its indirect effect would be accepted. Furthermore, we would need a citizen or a company from that third state to challenge the trade or travel restrictions, in which case the company in the EU member state could point to his obligations on the basis of the CFSP decision. Direct applicability only refers to this rightful reference to valid norms and the case is thus not completely incomprehensible. It is not even unthinkable that a national court would also allow this decision to have direct effect, in the sense that it may play a role in a national court proceeding. The problem, however, seems to be that in cases like this one cannot escape from dealing with the question of the supremacy of the CFSP norms over previously established (or maybe even future) national law. The principle of loyalty may prove to be a valuable candidate as a basis for the general supremacy of EU law, but at least in the area of foreign policy this issue has not yet fully blossomed.

4.3.

The International Court of Justice

On the basis of Article 292 EC member states are not to submit a dispute concerning Community law to any method of settlement other than those provided for in the EC Treaty. A similar provision has not been included in the Treaty on European Union. In fact, Title V TEU creates obligations which are binding in international law but not (or to a minor extent only) in Community law, and these obligations have in general been excluded from interference by the EC Court. The fact that CFSP provisions are not subject to the rule in Article 292 EC, nor to a similar provision in the 242

Ramses A. Wessel

TEU, raises the question whether these provisions are justiciable before the International Court of Justice. All EU member states are members of the United Nations, which makes them ipso facto parties to the Statute of the International Court of Justice (Art. 93, United Nations Charter). Whenever states have accepted the jurisdiction of the Court,105 it may decide on cases referred to it with regard to a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; or d) the nature or extent of the reparation to be made for the breach of an international obligation (Art. 36 of the Court’s Statute). Hence, there are no reasons a priori to exclude the jurisdiction of the International Court of Justice concerning the CFSP provisions in the TEU and the Council decisions that are based upon them.106 It is difficult, however, to imagine concrete cases that would be suitable for being brought to the Court’s attention. Possibilities to sue another member state for maintaining a national policy where CFSP provisions would call for a common policy are limited. The provisions on systematic cooperation provide sufficient safeguards against member states still maintaining conflicting national policy. Moreover, there is not much sense in challenging a decision that was adopted unanimously. Only in a case decided upon by qualified majority voting (and where a member state was outvoted) would there be any reason to question, for instance, the legal basis of the decision. In addition, one could imagine the non-implementation of CFSP measures by a member state (and, in the absence thereof, a Council decision because of the requirement of an unanimous vote) being brought before the International Court. More importantly, however, it is very unlikely that member states will bring legal CFSP issues before the International Court of Justice. In their view, any action before this Court would probably harm not only the further development of CFSP (which to a large extent depends on the development of mutual trust and cooperation), but also the member state’s image as a serious player in the field. Nevertheless, it is equally clear that the International Court of Justice may play a role whenever relations with third states are concerned. In that respect, however, it is important to make a distinction between acts of the member states and acts of the European Union, since Article 34, paragraph 1, of the Court’s Statute provides that only states may be parties in cases before the Court.

105

106

The EU member states that have accepted the Court’s compulsory jurisdiction on the basis of Article 36, para. 2, of the Court’s Statute are: Belgium, Denmark, Finland, Greece, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. The same holds true for the following candidate countries: Bulgaria, Cyprus, Estonia, Hungary, Malta and Poland. See also M.R. Eaton, supra note 75, p. 222. Cf. Ph. Willaert and C. Marqués-Ruiz, ‘Vers une politique étrangère et de sécurité commune: état des lieux’, 3 Revue du Marché Unique Européen, 1995, p. 35-95, at p. 55: ‘D’un point de vue juridique, les règles de droit international sont applicables en cas de différend entre Etats membres [...]’.

243

Good Governance and EU Foreign, Security and Defence Policy

5.

Good Governance as a Substantive Foreign Policy Objective

5.1.

Use of ‘Formal’ CFSP Legal Bases

Apart from reforming governance in the European Union, the Commission’s White Paper also looks into the EU’s contribution to global governance. ‘The objectives of peace, growth, employment and social justice pursued within the Union must also be promoted outside for them to be effectively attained at both European and global level’ (p. 26).

Indeed, according to Article 11 TEU one of the objectives of the Union’s foreign and security policy is ‘to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’. In order to be able to pursue this objective, the Union can make use of the general means, described in Article 12 TEU: Common Strategies, Joint Actions and Common Positions. Many Joint Actions entail concrete support activities in third countries. These may vary from support of the Union for the democratic development of a country to a contribution to the solution of a serious crisis. Decisions on Joint Actions that somehow concern the support of development in third countries reveal the Union’s concern with a variety of issues. Joint Actions may set out a general policy to support the democratic development in a particular third country (e.g. support for the Government of Montenegro, for Republica Srpska or for Zaire),107 but they may also focus on a more specific situation (e.g. assistance for mine-clearance in Croatia, a contribution to the re-establishment of a viable police force in Albania or support for the Palestinian Authority in its efforts to counter terrorist activities).108 Supporting democratic developments is often pursued through the sending of observers to elections (e.g. in Bosnia and Herzegovina, the Democratic Republic of Congo or Nigeria).109 And, finally, Joint Actions often form the basis for the nomination of a Special Envoy (e.g. for the Middle-East peace process, the city of Mostar, the African Great Lakes region, the Federal Republic of Yugoslavia or Kosovo).110 Common Positions are used for two different functions in relation to the promotion of global governance. A substantial number of Decisions relate to the impo-

107

108

109

110

244

See Joint Actions 98/301/CFSP of 30 April 1998, 98/117/CFSP of 2 February 1998 and 96/656/CFSP of 11 November 1996 respectively. See Joint Actions 98/627/CFSP of 9 November 1998, 1999/189/CFSP of 9 March 1999 and 97/289/CFSP of 29 April 1997 respectively. See Joint Actions 96/406/CFSP and 98/302/CFSP of 10 June 1996 and 30 April 1998 (Bosnia and Herzegovina); and 97/875/CFSP of 19 December 1997 and 98/735/CFSP of 22 December 1998 respectively. See Joint Actions 96/676/CFSP of 25 November 1996, 96/442/CFSP of 15 July 1996, 96/250/CFSP of 10 June 1996, 98/375/CFSP of 8 June 1998 and 1999/239/CFSP of 30 March 1999 respectively.

Ramses A. Wessel

sition of arms embargoes or the reduction of economic and financial relations.111 Most Decisions on economic sanctions reiterate a resolution of the United Nations Security Council on the same topic. In most cases additional Community measures are required on the basis of Articles 301 EC and 60 EC,112 which results in subsequent EC or ECSC decisions.113 The fact that binding United Nations Security Council (UNSC) resolutions are repeated in specific CFSP decisions may appear odd at first sight. An eventual absence of a CFSP decision would of course not affect the obligatory force of the Security Council Resolution. The reason for adopting CFSP decisions is nevertheless – apart from securing the direct effect of the SC Resolution – to be found in the system of the TEU, in which, according to Article 301 EC, economic sanctions by the Community require a prior political CFSP decision. Since the individual Security Council resolutions need to be implemented in Community legislation as well, the adoption of Community Regulations on the basis of Article 301 EC (or Art. 60 EC) is a necessary course to be followed. Apart from decisions implementing Security Council resolutions, ‘independent’ CFSP decisions on economic sanctions are also possible. An example can be found in a Common Position on the imposition of an oil embargo against the Federal Republic of Yugoslavia which does not find a basis in a Security Council resolution. These independent EU sanctions are of an equally unconditional nature. They may impose a general arms embargo (like in the case of Sudan) or introduce a diversity of measures such as visa restrictions (Yugoslavia and Belarus) or the suspension of development cooperation (as was the case regarding Nigeria).114 111

112

113

114

Other types of sanctions are not excluded, but rarely occur. An example of an unfriendly (but probably not illegal act) concerns the decision on the non-admission to the EU of government officials of Belarus in reaction to certain measures, by the Government of Belarus affecting the residences of ambassadors from several EU member states. As a first reaction the EU member states had already recalled their ambassadors from Minsk for consultations. See Common Position 98/448/CFSP of 9 July 1998 (repealed by Council Decision 1999/156/CFSP of 22 February 1999). Cf. also Common Position 98/725/CFSP of 14 December 1998 on restrictive measures against persons in the Federal Republic of Yugoslavia. Clear exceptions include the decisions on the imposition of an arms embargo. Examples include Council Decision 94/165/CFSP of 15 March 1994 concerning the imposition of an embargo on arms, munitions and military equipment on Sudan; Common Position 96/184/ CFSP of 26 February 1996 concerning arms exports to the former Yugoslavia; Common Position 96/746/CFSP of 17 December 1996 concerning the imposition of an embargo on arms, munitions and military equipment on Afghanistan; Common Position 98/409/CFSP of 29 June 1998 concerning Sierra Leone; and Common Position 1999/206/CFSP of 15 March 1999 on the imposition of an embargo on the export of arms, munitions and military equipment on Ethiopia and Eritrea. Because of the absence of an Article 301 EC counterpart in the ECSC Treaty, the ECSC decisions on economic sanctions were taken as a ‘Decision of the Representatives of the Governments of the Member States, meeting within the Council’. See Council Decision 94/165/CFSP of 15 March 1994 concerning the imposition of an arms embargo on Sudan; Common Position 98/725/CFSP of 14 December 1998 on restrictive measures against persons in the Federal Republic of Yugoslavia; and Common Position 98/448/CFSP of 9 July 1998 (repealed by Council Decision 1999/156/CFSP of 22 February 1999) on Belarus. The Common Position on Nigeria of 20 November 1995 (95/515/CFSP) introduces and reaffirms a number of economic and political sanctions against that country.

245

Good Governance and EU Foreign, Security and Defence Policy

A second category concerns more positive policies of the Union vis-à-vis third states. However, Regardless of what one might have expected on the basis of the Treaty text,115 Common Positions are used less frequently to define the policy of the Union vis-à-vis a particular third state. It has proven to be difficult to fix the policy of the Union in an actual decision. Nevertheless, the instrument has been used by the Union to express its attitude concerning particular events in the third country in question. Thus the Union for instance ‘condemns the human rights abuses’ (Nigeria), or ‘is concerned at the absence of progress towards democratization’ (Burma/Myanmar).116 More importantly, however, Common Positions concerning the policy of the Union vis-à-vis a third state in general contain the objectives of the Union, together with the measures to achieve these objectives. Examples of objectives are ‘to improve the situation in East Timor regarding respect for human rights’,117 ‘to support the dialogue’ or ‘to support the coordinated efforts of the international Community’ (Angola),118 ‘to assist the Burundi Government in organizing a national debate [...]’,119 ‘to support democratic development in Ukraine’ or ‘to continue to provide assistance for the process of nuclear disarmament’ (Ukraine).120 Generally, the objectives of Common Positions have a wide scope and are rather ambitious. Objectives such as ‘to bring a sustainable peace in Afghanistan’ or ‘to encourage, stimulate and support the process of recovery from genocide, promotion of national reconciliation […] and protection and promotion of human rights […]’ (Rwanda) are not exceptional.121

5.2.

Use of ‘Informal’ CFSP Legal Bases

However, apart from these formal instruments, the systematic cooperation which on the basis of Article 13(3) TEU is to take place between the member states, may result in some additional outcomes. The purpose of the systematic cooperation between the member states is ‘to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action’ (the last part of Art. 16). The outcome of the systematic cooperation in this respect may be rather invisible to outsiders, since in many cases the agreement on concerted and convergent action is not laid down in one of the formal CFSP instruments. Decisions to that end are therefore to be discovered in Presidential Declarations, or in ‘Declarations’, ‘Conclusions’, ‘Decisions’ or ‘Action Plans’ of the Council that are not based on specific legal bases and are not always made public. Even oral agreements between 115

116

117 118 119 120 121

246

According to Article 15 Common Positions shall also be used to define the approach of the Union to a particular matter of a geographical nature. Common Position 95/515/CFSP of 20 November 1995 and Common Position 96/635/CFSP of 28 October 1996 respectively. Common Position 96/407/CFSP of 25 June 1996. Common Position 95/413/CFSP of 2 October 1995. Common Position 95/91/CFSP of 24 March 1995. Common Position 94/779/CFSP of 28 November 1994. See Common Positions 98/108/CFSP of 26 January 1998 and 1999/73/CFSP of 25 January 1999 (Afghanistan) and Common Position 98/252/CFSP of 30 March 1998 (Rwanda).

Ramses A. Wessel

member states or statements made by the Presidency and tacitly accepted by the member states may serve as a source for concerted action.122 The systematic cooperation can subsequently be implemented by either the member states individually (for instance through similar diplomatic démarches by their representatives in third states), by a combination of national initiatives and Union initiatives (for instance when national démarches are supported by a Presidential declaration or démarches by the Troika), or by autonomous actions of the Union (when member states decide to leave a particular issue to be dealt with by the Presidency or the Troika, in which case a third state is believed to be confronted with a single, but strong actor).123 Practice has shown a divergent picture of actions and reactions, but the systematic cooperation is nevertheless considered to be one of the most important elements of CFSP by the policy-makers involved.124 The ‘informal’ decisions of the Council are not by definition less influential than Common Positions or Joint Actions.125 Thus, a concerted action towards the human rights situation in Turkey, because of its structural nature, is of extreme importance not only for the future relationship between the EU and Turkey, but also for the relationship between the EU and Iran, Russia and the CIS republics in the region. And, the failure to reach consensus on a declaration on the human rights situation in China in 1997 had all to do with the position of the EU vis-à-vis China and with the battle between Japan and the US concerning access to the Chinese market (and even more concretely with the planned visit of the French President to China, the question whether China would buy Boeing or Airbus aircraft, employment in Airbus-producing EU member states, the competition between American and European industries, and the survival of a European high-tech industrial cooperation project).126 An outstanding example of a decision which may partly be based on Article 13, paragraph 3, is the ‘Declaration’. Most opinions of the European Union concerning CFSP issues are not presented in one of the formal decision types mentioned in Article 12; instead they are expressed as ‘Declarations’. It is striking that, now that the Treaty explicitly mentions the types of decisions in which the opinions of the Union are to be expressed, the instrument of ‘Declaration’ has not lost the popularity it gained in the period of European Political Cooperation (EPC). In fact, each year shows a larger number of CFSP Declarations leading up to the current average of one Declaration almost every three days.127 In practice, CFSP systematic cooperation as well as concerted and convergent action has also proved important with regard to the so-called ‘political dialogues’ with third countries. Political dialogues as such cannot be found in the Treaty on European Union, but are established on the basis of general association treaties, de122 123 124 125 126 127

S. Keukeleire, supra note 35, at 186. Ibidem, p. 185. Ibidem, p. 230. Ph. Willaert and C. Marques-Ruiz, supra note 106, p. 70. Taken from S. Keukeleire, supra note 35, at 230. Joint Actions and Common Positions are together adopted on average 27 times yearly, which means one CFSP Decision every two weeks.

247

Good Governance and EU Foreign, Security and Defence Policy

cisions, declarations, or simply on the basis of an exchange of letters.128 Since the entry into force of the TEU, political dialogues take place in the framework of CFSP. They are seen as a means of attaining the objectives in Article 11 and may cover: – –

an exchange of views and information on political questions of mutual interest; the identification of areas suitable for an enlarged cooperation on the basis of a greater confidence between the different actors on the international scene; – the adoption of joint positions and actions in relation to existing international problems.129 Dialogue meetings can take place at different levels. The highest level is that of the Presidency (together with the President of the Commission). Lower levels are the ministerial level, the level of political directors, the senior official or expert level and the parliamentary level. Due to agenda difficulties there is a growing tendency to send lower deputies to dialogue meetings. Thus the ministers often send junior ministers, and political directors increasingly send deputy political directors or even more junior officials.130 Another trend is a preference for dialogue with regional groupings, for instance with the countries of Central and Eastern Europe (CEEC). Despite the fact that these states all have their own ‘Europe Agreement’ with the European Community, political dialogues are often combined for reasons of efficiency. Since in the Europe Agreements political dialogues are meant to facilitate the associated country’s full integration into the Community, the group meetings are very much against the will of the individual CEEC, who generally does not like its cooperation with the Union to be dependent on relations with other states.131 In the case of the CEEC, political dialogues are institutionalized in the Association Council – the ministerial body to supervise the association agreements – which sometimes fuses with ordinary General Affairs Councils. Agenda problems are also the reason behind the fact that more and more meetings take place along the margins of other international gatherings, such as OSCE summits or the opening of the United Nations General Assembly.

128

129

130 131

248

See on the political dialogue for instance J. Monar, ‘Political Dialogue with Third Countries and Regional Political Groupings: The Fifteen as an Attractive Interlocutor’, in E. Regelsberger et al. (eds.), Foreign Policy of the European Union: From EPC to CFSP and Beyond, Boulder, Lynne Rienner, 1997, p. 263-274. Many political dialogues were already established in the EPC period. Draft conclusions of the Council, adopted by the Political Committee on 7 June 1996, Doc. 8255/96. J. Monar, supra note 128, p. 271. Ibidem, p. 270 and in general on the relations and political dialogue with the CEEC: B. Lippert, ‘Relations with Central and Eastern European Countries: The Anchor Role of the European Union’, in E. Regelsberger et al. (eds.), Foreign Policy of the European Union: From EPC to CFSP and Beyond, Boulder, Lynne Rienner, 1997, p. 197-218.

Ramses A. Wessel

5.3.

Use of Community Competences

In practice, however, these CFSP competences have not changed the fact that the larger part of the EU’s democracy and human rights policies are based on Community legal bases. The most notable competences of the Union in this respect can be found in the use of economic and financial sanctions on the basis of Articles 301 and 60 EC, and in the ‘essential element clause’ which forms part of treaties concluded between the Community and third states. While the political decision to impose a sanction on a third state is based on a CFSP provision, the economic or financial implications can be found in an EC Regulation. Although one may question the idea of enforcing good governance in third countries through punitive action, this instrument is often used. In particular subSaharan Africa has been substantially subjected to this type of instrument, often in response to coups.132 In many cases, however, the sanctions are combined with the use of conditionality clauses in treaties with the respective states. Since 1995 a uniform clause included in almost all treaties concluded between the EC and third states. This essential element clause reads: ‘Respect for the democratic principles and human rights […] inspires the domestic and external policies of the Community and of [the third country concerned] and constitute an essential element of this agreement’.133 However, democratic conditionality has not been systematic and indeed is often a reaction to a negative development in a country, rather than a reason to establish a structural and more positive policy towards building democracy.134 This is not to say that there has not been any positive democracy assistance. On the basis of a study by Young it can be concluded that European political aid even increased threefold during the 1990s. Furthermore, funding has moved away from election monitoring towards support for NGOs. ‘Good governance initiatives’ these days incorporate democracy-related components. The stated aim has been to pursue governance work in a way that facilitates broader democratic enhancement mostly without such efforts being labelled overtly as democracy-focused. Public administration reform programmes have sought to link the strengthening of policymaking capability to issues of access and accountability. Central to the EU’s approach has been a new holistic reasoning, linking together economic reform, social change, strategic diplomacy and democratization.135

6.

Conclusion

The purpose of the present contribution has been to investigate whether and to what extent the European Union meets the challenge set by the Commission in its 132

133

134 135

See R. Youngs, ‘European Union Democracy Promotion Policies: Ten Years On’, European Foreign Affairs Review, 2001, p. 355-373, at p. 356. See more extensively on the use and function of this clause: M. Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality?, Antwerp, etc., Intersentia/Hart Publishing, 2001. R. Youngs, supra note 132. Ibidem.

249

Good Governance and EU Foreign, Security and Defence Policy

White Paper on European governance in the area of foreign, security and defence policy. Regarding the principle of participation, in the Union’s legal system a clear choice has been made in favour of democratic representation of the citizens of the Union through the European Parliament. However, the competences of the EP are extremely limited. One of the major shortcomings follows from the lack of possibilities for Parliament to hold the two main decision making organs in CFSP – the Council and the European Council – accountable. While the subsequent treaty modifications do reflect a somewhat increased interference by the EP regarding CFSP, possibilities in this respect remain limited to indirect interventions only, by making use of budgetary powers or through an influence on the Community dimensions of CFSP decisions. National parliaments only marginally compensate these shortcomings as the traditional prerogatives of the executive in most member states limit the parliamentary competences to an ex post facto scrutiny. Moreover, in the initiatives to stimulate the involvement of national parliaments in EU decision making – exchange of information between national parliaments and the EP, improving access to timely information or cooperation between national European Affairs Committees – CFSP is a largely neglected area. The lack of democratic accountability can be said to form part of a more general ‘accountability deficit’ when judicial competences are taken into account. The European Court of Justice may only be called in when there is a threat to the acquis communautaire; internal CFSP arrangements and decisions are explicitly excluded from the competences of the Court. In addition, the direct applicability of CFSP decisions is far from commonly accepted, although it seems possible for a national court to accept the (in)direct effect of a CFSP provision whenever its national legal system allows it to do so. Finally, the theoretical competence which the International Court of Justice may have in certain cases lacks a practical value. European polls reveal that a European Union that is more active in the world meets the wishes of the EU citizen,136 but the ambitions of the Union in the area of security and defence have had a negative impact on public access to documents in that area and on the transparency of decision making. On a positive note, the Court made clear that no distinction is to be made between EC and other Union documents when access to documents is concerned. However, the new regime on access to documents that has been developed during the last few years and which finally resulted in a new Regulation in 2001 makes a clear exception for ‘sensitive documents’, thus allowing the Institutions (and even obliging the member states) to refuse access to a document where disclosure would undermine the protection of public interests as regards public security, defence and military measures. In itself this is a logical consequence of the establishment of a European Security and Defence Policy in which close cooperation with NATO (the source of the strict regime on sensitive documents) is thought to be essential. Ironically, the EU citizen pays a price for lifting the ambitions of the Union to a higher level. 136

250

In the spring of 2003 the Eurobarometer showed 67% support for a common foreign policy and 77% for a common security and defence policy. Average figures are quite stable around 70%.

Ramses A. Wessel

This brings us to the question of the competences of the Union to meet another objective listed in the Commission’s White Paper: to make a contribution to global governance. The Treaty indeed lists a number of instruments to be used by the Union to meet this objective. However, in most cases the instruments are not used to their full extent. They have a strong declaratory nature and their implementation relies on financial economic Community measures. Thus, instruments to contribute to ‘global governance’ certainly form part of CFSP, but the overall picture remains one of a Union relying on its economic potential (‘wallet diplomacy’), in which the CFSP procedures function as a means to establish a political consensus to make financial donations out of the Community budget possible. So far, the implementation of the principles of good governance as phrased in the Commission’s White Paper in the area of foreign, security and defence policy seems to be hampered by the distinction that is still being made between the Community and the other areas of the Union. While it seems fair that member states should not be forced to allow more openness and scrutiny at the European level than they are used to at home with regard to these issues, the special arrangements regarding parliamentary and judicial scrutiny as well as the special status of sensitive CFSP and ESDP documents does not take the unity of the Union’s legal order into full account. In that respect the reorganization and unification of the treaties – as a result of the new Treaty establishing a Constitution for Europe – does not seem to change much with respect to CFSP. In fact, the noted problems related to good governance in the CFSP area are here to stay, as neither the involvement of the European Parliament, nor the competence of the Court has been subject to improvement. Not being qualified as legislative acts, the CFSP decisions will not be adopted through the default procedure, which includes co-decision by the EP (Art. I-40, par. 6 and 8) and public deliberations of the Council (Arts. I-24 and I-50). By the same token, the jurisdiction of the Court will remain to be excluded (Art. III-376), although the possibility for persons to challenge restrictive measures against them as well as the role of the Court in the preservation of CFSP (Art. III-308) may be seen as improvements.137 However, keeping in mind the statement in the Commission’s White Paper that the first step should be to reform governance successfully at home in order to enhance the case for change at an international level, we have no choice but to maintain a critical attitude towards action of the Union in this field.

137

See for a survey of the changes foreseen by the draft Constitutional Treaty of 2003: M. Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’, Common Market Law Review, 2003, p. 1347-1366. Cf. also R.A. Wessel, ‘Fragmentation in the Governance of EU External Relations: Legal Institutional Dilemmas and the New Constitution for Europe’, in J.W. de Zwaan, et al. (eds.), The European Union – An Ongoing Process of Integration, Liber Amicorum Alfred E. Kellermann, The Hague: T.M.C. Asser Press, 2004, pp. 123-140.

251

Steve Peers*

GOVERNANCE AND THE THIRD PILLAR: THE ACCOUNTABILITY OF EUROPOL

1.

Introduction

The issue of governance inevitably has to be addressed differently in the context of the EU’s ‘third pillar’, the detailed rules providing for adoption of measures concerning policing and criminal law.1 The question of governance is particularly relevant to the operations of Europol, the EU’s police intelligence and analysis agency which has been operational since 1999. An examination of the functioning of Europol is relevant to the issue of governance, as it is the third pillar body which has the greatest operational powers and as such, is a large part of the ‘executive’ or ‘administrative’ side of the third pillar. Furthermore, because of the nature of policing work, one of the themes addressed by the Commission in its White Paper on Governance is particularly relevant. Put simply, is Europol accountable? In particular, is there adequate parliamentary, judicial and operational accountability of Europol, including its external relations with non-EU states and non-state bodies? To what extent have recent amendments to Europol’s legal framework taken the opportunity to enhance such accountability? What impact would the EU Constitutional Treaty have, if ratified? As we shall see, this examination of accountability also raises certain questions of openness. The following chapter begins by examining the current institutional framework of Europol, then examining the issues of parliamentary, judicial and operational accountability in turn. Then it examines the recent changes to Europol’s legal framework and the EU constitution. It will be seen that Europol’s legal framework suffers from fundamental accountability problems that recent proposed reforms do not go far enough to address. However, the Constitutional Treaty offers significantly more progress in this area.

* 1

Professor of Law, University of Essex. Articles 29-42 EU.

253

Governance and the Third Pillar: The Accountability of Europol

2.

Overview of the Institutional Framework

The institutional framework of the EU’s ‘third pillar’ has undergone several changes, and would undergo a further change if the EU’s Constitution ever enters into force.2 Initially, the issues of criminal law and policing were addressed in an ‘informal intergovernmental’ framework, in which Member States’ representatives met in a network of secretive committees and agreed on several Conventions, as well as non-binding soft law. With the entry into force of the Treaty on European Union, the EU Member States established a ‘formal intergovernmental’ framework for discussions on these issues (along with civil law, immigration and asylum law).3 This revised framework allowed for the adoption of (as before) Conventions, which were drawn up by the Council and recommended to Member States for ratification in accordance with their national procedures. It also allowed for the adoption of ‘Joint Actions’, ‘Common Positions’ and ‘Joint Positions’, which were not clearly defined, but which did not entail ratification by national procedures to come into effect. Due to the uncertain effect of these measures and the enhanced national parliamentary control over the ratification of Conventions, the latter were used for all important matters, including the creation of Europol. All measures were agreed unanimously in the Council on the basis of proposals from Member States; the Commission lacked even a shared power of initiative over criminal law and policing issues. For its part, the European Parliament had the right only to be ‘regularly inform[ed]’ of discussions and ‘consult[ed]’ by the Member State holding the rotating Council Presidency on the ‘principal aspects’ of discussions. As for the Court of Justice, the Member States could decide on a case-by-case basis whether to give it jurisdiction to interpret or settle disputes concerning Conventions. Subsequently, the Treaty of Amsterdam revised the procedures for adopting Conventions. Article 34(2)(d) TEU now provides that ‘Member States shall begin the procedures’ for adopting Conventions ‘within a time limit to be set by the Council’. Furthermore, Conventions will enter into force once half of the Member States have ratified them, with respect to the ratifying Member States, ‘unless they provide otherwise’. Notwithstanding these amendments, in practice, the use of Conventions has effectively been phased out since the Treaty of Amsterdam entered into force. Only one new Convention has been agreed, shortly after the Amsterdam provisions took effect,4 and it was likely agreed in the form of a Convention only because the Council had been considering the text in that form since 1995, well before the Treaty of Amsterdam entered into force. Only two further Conventions have been proposed, and they have attracted little interest in the Council.5 Several new Protocols to Conventions have been agreed, but such measures inevitably had to take this 2

3 4 5

254

See generally S. Peers, EU Justice and Home Affairs Law, 1st edition, Harlow, Longman, 2000, chapters 2 and 3, and 2nd edition (OUP, 2005, forthcoming), chapter 2. Former Articles K to K 9 EU. Convention on mutual assistance on criminal matters (OJ 2000 C 197/1). These are a Spanish initiative for a Convention on illicit trafficking of drugs on the high seas (OJ 2002 C 45/8) and a German initiative for an Agreement on enforcement of fines for road traffic offences (Council doc. 9884/01, 27 June 2001).

Steve Peers

form in the absence of any provision for amending Conventions by any other means. In particular, this entailed the adoption of three Protocols to the Europol Convention.6 The Commission gained an enhanced role with the entry into force of the Treaty of Amsterdam, as it was permitted a shared right of initiative with Member States in policing and criminal law matters. For its part, the European Parliament gained the right to be consulted on all measures mentioned in Article 34(2)(b) to (d) TEU, including measures implementing Conventions. Finally, the Court of Justice was awarded an extension of its jurisdiction in Article 35 TEU. This gave the Court jurisdiction to rule on references from national courts (subject to an opt-in by each Member State), disputes between Member States regarding third pillar measures (or between the Member States and Commission regarding third pillar Conventions) and annulment actions brought by the Commission or Member States. But these rules were not retroactive; Conventions signed prior to the entry into force of the Treaty of Amsterdam continued to contain distinct rules on the Court’s jurisdiction.7

3.

The Legal Framework of Europol

The legal framework for Europol is unique. It is the only EU body which has been formally established by an international Convention ratified by EU Member States,8 as distinct from secondary EC or EU measures.9 The Convention establishing Europol was signed in July 1995 in accordance with the pre-Amsterdam rules for agreeing EU Conventions, and entered into force in October 1998.10 While the speed of ratification of the Convention may appear slow, it was still quicker than that of any other third pillar Convention.11 The new Member States joining the EU in May 2004 are obliged to ratify the Europol Convention;12 they will become parties to it and participate fully in Europol operations shortly after they have ratified it.13 Europol began operations on 1 July 1999 after all relevant implementing measures had en6

7

8

9

10 11

12 13

OJ 2000 C 358/1, OJ 2002 C 312/1 and OJ 2004 C 2/1. See also the Protocol to the EU Mutual Assistance Convention (OJ 2001 C 326/1) and the Protocol to the Customs Information System (CIS) Convention, regarding customs files (OJ 2003 C 139/1). On this issue generally, see S. Peers, ‘Who’s Judging the Watchmen?: The Judicial System of the Area of Freedom Security and Justice’,18 Yearbook of European Law, 2000, p. 337. Before the Europol Convention entered into force and Europol began formal operations, there was a provisional ‘Europol Drugs Unit’ established by a ministerial decision and then a Council Joint Action. See S. Peers, supra note 2, p. 210. On the creation of EU bodies by secondary measures, see R.A. Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’, elsewhere in this volume (concerning CFSP bodies) and the Decision creating Eurojust (OJ 2002 L 63/1). OJ 1995 C 316/1. For example, the Convention on Protection of the EC’s financial interests, signed at the same time (OJ 1995 C 316/48), only entered into force in October 2002, and an extradition Convention signed earlier in 1995 was still not in force by 1 November 2004 (OJ 1995 C 78/1). See Article 3(4) of the 2003 Act of Accession (OJ 2003 L 236/33). See Article 46, Europol Convention. By 1 November 2004, all the new Member States except Estonia were parties.

255

Governance and the Third Pillar: The Accountability of Europol

tered into force.14 The initial tasks of Europol were essentially concerned with the collection and analysis of police intelligence. Amendments to the Convention have to be ratified by the Member States in the same way as the original Convention,15 but the Council has power, acting unanimously, to modify the definitions of crime in the Annex to the Convention.16 The Council also had the power, acting unanimously, to extend Europol’s competence to deal with terrorism cases earlier than originally planned and to extend Europol’s competence further to deal with all the types of crime listed in the Annex to the Convention, along with the forms of crime that Europol was initially competent to deal with.17 Both these powers have been spent.18 The Council also has the power, acting unanimously, to adopt implementing rules relating to analysis files, the transmission of information to and receipt of information from third States or other bodies, the communication of personal data to third states and bodies, staff regulations, confidentiality, the financial regulation and relations with third states/bodies outside the EU.19 By the same voting rule, the Council must approve the Joint Supervisory Body’s rules of procedure, appoint the Director and Deputy Directors of Europol, adopt the annual budget and agree a Protocol on privileges and immunities.20 In contrast, the Council can dismiss the Europol Director and deputy Directors by a 2/3 vote.21 For its part, Europol’s management board, acting unanimously, can decide on the number of liaison officers to be sent to Europol, the rights and obligations of liaison officers,22 costs rules relating to liaison officers, the design of the index system for analysis files, the adoption of its rules of procedure, the adoption of reports to the Council, Europol’s five-year financing plan, the approval of a headquarters agreement, and rules on relations with third states/bodies inside the EU. The Board also approves the opening of an analysis file by a two-thirds majority,23 and decides on the detailed provisions on the drawing up of reports.24 It can also settle any dispute over liability by 2/3 majority.25 The powers of the Council and Management Board have been used to adopt implementing measures relating to Europol in a number of areas.26 Furthermore, the legal framework of Europol has been supplemented by three further Protocols to 14 15 16 17 18

19 20 21 22 23 24 25 26

256

See Article 45(4) of the Convention and OJ 1999 C 185/1. Articles 43(1) and (2) of the Convention. Article 43(3) of the Convention. Article 2(2) of the Convention. OJ 1999 C 26/21 (extension to terrorism); OJ 1999 C 149/16 (extension to counterfeiting currency and means of payment); OJ 2001 C 362/1 (extension to all crimes in Annex). Articles 10(1), 10(4), 18(2), 30(7), 31(1), 35(9) and 42(2) of the Convention. Articles 24(7), 29(1), 29(2), 35(5) and 41 of the Convention. Article 29(6) of the Convention. Articles 5(1), 5(7), 5(9), 11(3), 28(7), 28(10), 35(4), 37 and 42(1) of the Convention. Article 12(1) of the Convention; see further Article 28(1)(7) of the Convention. Article 16 of the Convention. Article 38(3) of the Convention. For the measures adopted up to summer 1999, see S. Peers, supra note 2, p. 211; for the later measures, see section 4 infra.

Steve Peers

the Convention adopted in 2000, 2002 and 2003, although none of these Protocols is in force yet.27 The 2000 Protocol will lift restrictions on Europol’s competence as regards money laundering, and the later two Protocols are considered further below in section 7.1. Furthermore, in 2000, the Council adopted two Recommendations purporting to expand Europol’s tasks to include sending requests to national police forces to begin operations and to participate in joint investigative teams with Member States’ national forces.28 These recommendations clearly appear to extend Europol’s powers as set out in the Europol Convention without the necessary amendments being made to the Convention, usurping in particular the important requirement that national parliaments have to ratify any amendment to the Convention.29 To the extent that Europol purports to exercise such powers before ratification and entry into force of the 2002 Protocol to the Europol Convention that would create a legal base for them, it is strongly arguable that it is acting illegally.

4.

Legislative Accountability

Initially, the legislative accountability of Europol was focused on national parliaments, who approved the initial Convention and have the right to control any changes to the Convention that are made by means of Protocols. However, the EP was not consulted on the initial Europol Convention or its Protocols before their adoption; nor was it consulted upon a series of important measures implementing the Convention adopted before the Treaty of Amsterdam entered into force. For that matter, national parliaments do not have any rights to control the decision-making of the Council or the Management Board as regards implementing measures; nor is there even a right for them to be informed of implementing measures or reports produced pursuant to the Convention. The legislative accountability of Europol as regards the European Parliament (EP) was enhanced by the Treaty of Amsterdam, which gave the EP the right to be consulted on Conventions (including presumably Protocols to existing Conventions) and all measures implementing Conventions.30 This meant that numerous references in the Europol Convention to the Council acting to adopt implementing measures ‘in accordance with’ Title VI of the EU Treaty now entailed an obligation to consult the EP before those measures were adopted. Furthermore, the Europol Convention expressly provides that the EP has to be consulted if the Convention is amended ‘in any way’, and requires the Council Presidency to send a special annual 27

28 29 30

Each Protocol needs to be ratified by all of the ‘old’ Member States to enter into force. See OJ 2000 C 358/1, ratified by seven old Member States (Germany, Spain, France, Greece, Portugal, Sweden and the UK); OJ 2002 C 312/1, ratified by three old Member States (Germany, Austria and Spain); and OJ 2004 C 2/1, not yet ratified by any old Member State. Each Protocol has been ratified by all of the new Member States, except for Estonia. The foregoing information is taken from the Council’s website, and is accurate as of 9 November 2004. OJ 2000 C 289/8 and OJ 2000 C 357/7. See Statewatch Bulletin, vol. 10, no. 5. See Article 39 EU.

257

Governance and the Third Pillar: The Accountability of Europol

report to the EP every year on the work of Europol.31 In practice, the EP has been consulted on twelve of the seventeen measures implementing the Europol Convention adopted since the Treaty of Amsterdam entered into force, comprising five Decisions concerning Europol staff salaries,32 four Decisions amending the Europol staff regulations,33 the 2001 Decision extending Europol’s competence to all forms of crime listed in the Annex to the Europol Convention,34 the amendment to the Act concerning the transmission of data by Europol to third parties35 and the 2003 Decision amending the Europol confidentiality rules.36 The Decisions which the EP was not consulted upon were the 2000 Decision listing which third states and non-EU bodies Europol should negotiate with and the 2001, 2002 and 2004 amendments to that Decision.37 Also, the EP has been consulted on all three Protocols to the Europol Convention adopted since the Treaty of Amsterdam entered into force.38 It is still not consulted on financial decisions, Europol treaties with EU or non-EU bodies or States or the appointment or dismissal of the Europol Director and deputy Directors. Nor is it sent the reports of the Joint Supervisory Body or audit board. It is only sent a special annual report on Europol. During the 1994-1999 Parliament, the EP objected to the failure to consult it on the Europol Convention or implementing measures, but appeared to take the view that national parliaments should take the lead role regarding Europol and that due to the limits to Europol’s tasks, there were no fundamental accountability deficits regarding the Convention.39 However, the 1999-2004 Parliament took a rather more vigorous approach, arguing that there were fundamental defects in Europol’s ac31 32

33

34

35

36

37

38 39

258

Article 34 of the Convention. One of these Decisions was adopted in 1999 (OJ 1999 C 364/3, EP vote of 5 October 1999); two were adopted in 2001 (OJ 2001 C 112/7; proposal in OJ 2001 C 18/7 and EP vote of 14 January 2001, OJ 2001 C 276/117; OJ 2001 C 165/1, approved by EP in May 2001, OJ 2002 C 34 E/207); one was adopted in 2002 (OJ 2002 C 150/2; proposal in OJ 2001 C 374/70 and rejected by EP on 14 May 2002 in OJ 2003 C 187 E/147); and one was adopted in 2003 (OJ 2003 C 152/7, proposed in OJ 2003 C 52/17 and rejected in EP vote of 10 April 2003, not yet published). One of these Decisions was adopted in 1999 (OJ 1999 C 364/1 staff salaries; EP vote 6 October 1999); one dates from 2001 (OJ 2001 C 112/1; proposal in OJ 2001 C 18/1 and EP vote of 14 January 2001, OJ 2001 C 276/117); and two date from 2003 (OJ 2003 C 24/1, proposed in OJ 2002 C 161/16 and vote of EP on 21 October 2002, OJ 2003 C 300 E/112 and OJ 2003 C 152/2, proposed in OJ 2002 C 286/20 and rejected in EP vote of 10 Apr. 2003, not yet published). OJ 2001 C 362/1; proposed in OJ 2001 C 176/26 and approved by EP in the week of 12 November 2001 (OJ 2002 C 140 E/133). OJ 2002 C 58/12 (see also OJ 2002 C 76/1); proposed in OJ 2001 C 163/13 and approved by EP in the week of 12 November 2001 (OJ 2002 C 140 E/135). OJ 2003 C 152/1; proposed in OJ 2002 C 286/19 and rejected in an EP vote on 10 April 2003 (not yet published). (OJ 2000 C 106; OJ 2001 C 358/1; OJ 2002 C 150/1; and Council doc. 12371/1/04, 29 Sep. 2004, not yet published in the OJ, adopted by the JHA Council, 25-26 Oct. 2004). On these Decisions, see further section 6 infra. Supra note 27. See particularly the Nassauer report (A4-0064/1999), containing also a formal Recommendation to the Council on Europol, supported by the EP plenary on 13 April 1999 (OJ 1999 C 129). Also, see the earlier Nassauer report following signature of the Convention (A4-0061/1996), supported by the EP plenary on 29 February 1996 (OJ 1996 C 96).

Steve Peers

countability. By a large majority on each occasion, the EP has adopted a number of reports and recommendations calling for the replacement of the Europol Convention by a third pillar Decision (thus entailing a qualified majority vote in the Council to adopt implementing measures, and the normal post-Amsterdam rules on ECJ jurisdiction), the appointment of EP and Commission representatives to the Europol Management Board, the funding of Europol in part from the EC budget (thus entailing further EP control), consultation of the EP on financial decisions and appointments and appearances by the Director of Europol before EP committees.40 As we shall see in section 7.1 below, the EP has enjoyed only limited success in achieving these goals. Therefore, it has in recent years repeatedly rejected all proposals for implementing measures or Protocols to the Europol Convention.41 These rejections are of course non-binding, but the EP is using the only means available to make its political point. The view of the EP can best be gauged by excerpts from one of these reports: ‘In all likelihood, given what we already know, the Council will not take a blind bit of notice of any amendments by Parliament… It is in no way in the interests of Parliament, as a democratic institution representing Europe’s citizens, to go along with what is basically a mug’s game’.42

It can clearly be seen that despite the enhancements made by the Treaty of Amsterdam, the EP is in a very weak position as regards the scrutiny of Europol activity. It has no financial powers or power to block or insist on amendments to the Convention or planned implementing measures. As regards Europol’s operational accountability to the EP, the latter only receives a sanitized version of the annual report of Europol, although it has not yet taken the opportunity to analyse these annual reports in detail. National parliaments have the essentially negative power to block any amendments to the Europol Convention, but their ability to influence or control the development of implementing measures or to play a role in scrutinizing operational accountability depends on each Member State’s national decision whether or not to give information, consultation or control powers to its national parliament in this area. 40

41

42

See Karamanou report on the 2000 Protocol (A5-0312/2000), vote of 14 November 2000 (OJ 2001 C 223/89); Turco report on the Decisions on Europol’s competence and transmission data (A5-0370/2001), vote of 22 October 2001 (OJ 2002 C 140 E/133); Deprez report on the 2002 Protocol (A5-0173/2002), vote of 30 May 2002, including a Recommendation to the Council (OJ 2003 C 187 E/143); Deprez report on amendments to the staff regulations (A50345/2002), vote of 22 October 2002 (OJ 2003 C 300 E/112); von Botticher report on 2003 Protocol (A5-0106/2003), vote of 9 April 2003; von Botticher report on a Recommendation to the Council (A5-0116/2003), vote of 7 April 2003; Turco report on amendments to Europol confidentiality rules, Europol staff regulations and Europol staff salaries (A5-0107/2003), vote of 10 April 2003; Turco report on proposed Decisions amending Europol staff regulations, correcting Europol staff salaries and updating Europol staff salaries (A5-0108/2004), EP plenary vote due 9 March 2004. See all reports concerning Protocols and implementing measures referred to ibidem, except the Karamanou report on the 2000 Protocol. Deprez report (A5-0345/2002), supra note 40.

259

Governance and the Third Pillar: The Accountability of Europol

5.

Judicial Accountability

Article 40(1) of the Europol Convention provides that disputes between Member States on the ‘interpretation or application’ of the Convention first have to be discussed in the Council, ‘with the aim of finding a settlement’. After six months, the Member States which are party to such a dispute, if they have not been able to end the dispute, are to agree among themselves how to settle it.43 Fourteen of the first fifteen Member States signed a Declaration asserting that they would ‘systematically’ send such disputes to the Court of Justice.44 In the event, no such disputes have been referred to the Council or the Court since the Convention entered into force. However, the Europol Convention also provides obliquely that staff disputes against Europol are subject to the jurisdiction of the EU Courts in the same way as disputes of other EU staff with their employers.45 At present this means that such disputes go to the Court of First Instance with a possible appeal to the Court of Justice. Pursuant to the amendments to the judicial provisions of the EC Treaty made by the Treaty of Nice, a ‘judicial panel’ specializing in disputes between the staff of EU/EC institutions was established in November 2004; it will likely begin operations in 2005.46 At that time, this panel will take over jurisdiction for disputes between Europol and its staff. In the meantime, there have been a number of disputes before the Court of First Instance concerning Europol staff.47 A large number of Member States were anxious to ensure that national courts would be able to send references for a preliminary ruling to the Court of Justice on the Europol Convention. Member States were divided on this issue, but a compromise was ultimately agreed in the form of a Protocol to the Europol Convention,48 permitting Member States to decide for themselves whether to permit such jurisdiction and if so, whether to restrict the power to refer to final courts only.49 A number of Member States also declared that they reserved the possibility to oblige final courts to send references. The Protocol entered into force on 29 December 1998, and 43 44 45 46

47

48 49

260

Article 40(2) of the Convention. OJ 1995 C 316/32. Article 40(3) of the Convention. The text of the Council Decision establishing the EU Civil Service Tribunal, adopted 2 Nov. 2004, has not yet appeared in the OJ; see Council doc. 12394/04, 28 Sep. 2004. Appeals from this tribunal’s decisions can be brought before the Court of First Instance, with an exceptional possibility of further appeal to the ECJ (see Arts. 225 and 225a EC as amended by the Treaty of Nice and Arts. 9-13 of Annex I to the Statute of the Court of Justice concerning the Staff Tribunal (idem)). Several cases against Europol were brought before the EC courts starting in 2002, although according to information available as of late 2004, several had been withdrawn and none had yet resulted in a judgment (source: CFI list of cases, last accessed 9 November 2004: ). See Cases T-12/02 Dekker, T-208/02 Beier, T-245/02 De Jong, T-127/03 Pascucci, T-355/03 Mausolf, T-423/03 Smit and T-89/04 Bieger, all withdrawn; T-209/02 Mausolf, T-143/03 Smit, T-258/03 Mausolf, T-210/04 Mausolf and T244/04 Smit, all pending. OJ 1996 C 299/1. Article 2 of the Protocol.

Steve Peers

new Member States were obliged to ratify the Protocol when they ratified the main Europol Convention,50 although they were still able to choose among the options offered by the Protocol. Fourteen of the first fifteen Member States decided to give the Court jurisdiction,51 and eleven of these permitted all courts or tribunals to send questions to the Court of Justice;52 eight of these eleven States also reserved the possibility to require final courts to send questions to the Court of Justice.53 Five of the new Member States have given jurisdiction to the Court (Hungary, Lithuania, Czech Republic and Slovenia allow all courts and tribunals to refer; Latvia allows final courts to refer). However, despite this wide scope of potential jurisdiction over references, at time of writing, no national court had yet sent any question concerning the Convention to the Court. Moreover, it should be kept in mind that the Protocol on Privileges and Immunities of Europol staff does not have any provisions for jurisdiction of the Court of Justice.54 The legal framework applicable to the Court does not guarantee that disputes about Europol involving the Member States will be sent to the Court of Justice (or any other dispute settlement mechanism), thereby creating the possibility of deadlock in the absence of agreement among all parties to the dispute on the method of settling it. Moreover, the restrictions on the jurisdiction of the Court over preliminary rulings limit the prospect of uniform interpretation of the Convention and fail to provide for any prospect of challenges to the validity of measures implementing the Convention in the national courts.

6.

Operational Accountability

The Protocol on privileges and immunities simply gives Europol and its staff full immunity in all cases.55 This entails ‘immunity from legal process … in respect of unauthorized or incorrect data processing’; immunity from ‘search, seizure, requisition, confiscation and any other type of interference’ with Europol ‘property, funds and assets’; inviolability of Europol archives ‘wherever located on the territories of the Member States and by whomsoever held’;56 exemption from ‘all direct taxes’ and (under certain conditions) from ‘indirect taxes’; and for ‘members of the organs of Europol and staff members of Europol … immunity from legal process of any kind in respect of words spoken or written, and of acts performed by them, in the 50

51

52 53 54 55 56

Article 6 of the Protocol. All new Member States except Estonia had therefore ratified the Protocol by 1 November 2004 (supra note 13). The only exception was the UK. The information on the status of the Court is taken from the Declarations made by Member States at the time the Protocol was signed (OJ 1996 C 299/14), the later Swedish declaration (OJ 1997 C 100) and information on the Council’s website, ‘agreements’ sub-section: . New Member States will make decisions on whether to accept the ECJ’s jurisdiction when they sign or ratify the Protocol after EU enlargement. The exceptions were France, Ireland and Spain. The exceptions were Denmark, Finland and Sweden. OJ 1997 C 221/1, in force 1 July 1999. On the Protocol, see further section 6 infra. Ibidem. See respectively Articles 2(1), 2(2), 3, 4 and 8(1) of the Protocol.

261

Governance and the Third Pillar: The Accountability of Europol

exercise of their official functions’, even after their employment with Europol, along with ‘inviolability of all their official papers and documents and other official materials’. There is an obligation on the Director of Europol to waive the immunities ‘in cases where the immunity would impede the course of justice and can be waived without prejudice to the interests of Europol’.57 If there is a continuing dispute between the Director and a national body about the decision to waive immunity, there is a requirement for the two sides to consult.58 Failing that, the Protocol contains a provision on dispute settlement, but this Article merely provides for disputes to be discussed in the Council with a view to settlement. If no settlement is reached, the Council shall unanimously agree on the modalities of dispute settlement.59 It might be tempting to compare the Protocol with that applicable to the staff and officials of the EC, which contains comparable immunities. However, the core immunities set out in the Protocol on EC privileges and immunities are subject to the jurisdiction of the ECJ and to the general rules of the Treaties and the EC staff regulations.60 So is the obligation to waive immunity,61 as indeed is the entire Protocol. In contrast, the Protocol on Europol staff leaves open the possibility of a deadlock in case of a dispute that potentially could not be settled by any national or EU court or other form of dispute settlement, in case of a refusal to waive immunity and a failure to agree unanimously in the Council on the means of settling the dispute.

7.

External Relations of Europol62

Compared to Community agencies, Europol’s leeway to develop relations with third countries or bodies is remarkable. It is particularly striking that Europol can negotiate and sign agreements with non-EU countries or bodies in its own right. No Community agencies can do this. The legislation establishing the sixteen EC agencies agreed before February 2004 either gives those agencies no powers to enter into any form of treaty relations with non-EU countries or restricts such treaty relationships to cases where the Council has concluded either a general or specific treaty relating to the relevant subject-matter of the agency’s activities. More precisely, eight agencies have no powers to enter into any form of treaty relations: the vocational training agency;63 the Balkan reconstruction agency;64 the translation centre;65 the

57 58 59 60 61 62

63 64 65

262

Article 12(2) of the Protocol. Article 12(5) of the Protocol. Article 13 of the Protocol. See Article 12(a) of the Protocol on EC privileges and immunities. See Article 18 of the Protocol on EC privileges and immunities. For an overview of the framework for Europol external relations, see C. Rijken, ‘Legal and Technical Aspects of Cooperation Between Europol, Third States and Interpol’, in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony?, Asser, 2001, p. 577. Reg. 337/75 (OJ 1975 L 39/1). Reg. 2454/1999, OJ 1999 L 299/1; see later Reg. 2667/2000, OJ 2000 L 306/7. Reg. 2965/94, OJ 1994 L 314/1.

Steve Peers

medicines evaluation agency;66 the EC’s trademark and design rights office;67 the plant variety office;68 the workplace health and safety agency;69 and the European foundation for improvement of living and working conditions.70 Furthermore, there are no general rules on treaty-making in the Regulation permitting the creation of executive agencies.71 On the other hand, the EU drugs agency is open to the participation of those non-Community countries which share the Community’s interests and those of its Member States in the Centre’s objectives and work, on the basis of agreements entered into between them and the Community on the basis of Article [308] of the Treaty.72 Several other agencies are open to countries which have signed agreements with the Community ‘whereby they have adopted and are applying Community law’ in the relevant field; these agreements could presumably be either general agreements such as association agreements or agreements on certain specific issues, wholly or partly concerning the subject-matter of the agency’s activities. Such provisions apply to the European Maritime Safety Agency,73 the European Aircraft Safety Agency,74 the Food Safety Agency75 and the network and information security agency.76 Similar provisions apply to the European training foundation, where the foundation ‘is open to the participation of [non-EC] countries … which share the commitment of the Community and the Member States to the provision of aid to Central and Eastern Europe in the training field’, subject to treaties agreed with the Community.77 For its part, the European Environment Agency is open to non-EU countries ‘which share the concern of the Communities and the Member States for the objectives of the Agency’ following agreements concluded with the Community.78 Particular rules apply to the Monitoring Centre for racism and xenophobia, which is obliged to ‘cooperate with organizations in the Member States or international, governmental or non-governmental organizations competent in the field of racist and xenophobic phenomena’.79 While ‘administrative arrangements’ for this cooperation are subject only ‘to the approval of the Management Board’,80 the Centre is also obliged to ‘coordinate its activities with those of the Council of Europe’, following a treaty which the Regulation obliged the Community to ‘enter into … on 66

67 68 69 70 71 72 73 74 75 76 77 78 79 80

Reg. 2309/93, OJ 1993 L 214/1. The same is true following amendments to the legislation establishing the agency in 2004 (Reg. 726/2004, OJ 2004 L 136/1). Reg. 40/94, OJ 1994 L 11/1, extended to design rights following Reg. 6/2002, OJ 2002 L 6/1. Reg. 2100/94, OJ 1994 L 227/1. Reg. 2062/94, OJ 1994 L 216/1. Reg. 1635/75, OJ 1975 L 139/1. Reg. 58/2003, OJ 2003 L 11/1. Article 13(1) of Reg. 302/93, OJ 1993 L 36/1. Article 17 of Reg. 1406/2002, OJ 2002 L 208/1. Article 55 of Reg. 1592/2002, OJ 2002 L 240/1. Article 49 of Reg. 178/2002, OJ 2002 L 31/1. Article 24 of Reg. 460/2004, OJ 2004 L 77/1. Article 16 of Reg. 1360/90, OJ 1990 L 131/1. Article 19 of Reg. 1210/90, OJ 1990 L 120/1. Article 7(1) of Reg. 1035/97, OJ 1997 L 151/1. Article 7(2) of Reg., ibidem.

263

Governance and the Third Pillar: The Accountability of Europol

behalf of the Centre, with the Council of Europe for the purpose of establishing close cooperation between the latter and the Centre’. Any ‘agreements with other international organizations or with third countries’ which ‘prove necessary for the Centre to carry out its tasks efficiently’ would also be ‘enter[ed] into’ by the Community ‘on behalf of the Centre’, and ‘following the same procedure’ for the conclusion of international agreements by the EC.81 As for agencies established since February 2004, the Railway Agency and the Centre for Disease Prevention and Control follow the model established in the transport, food and computer safety fields.82 The Regulation establishing the external borders agency is apparently a special case. It does not provide for fully-fledged agreements concerning third countries’ participation, but rather a suggestion that the agency should be able to facilitate operational cooperation with Europol, international organizations and third countries, ‘in the framework of working arrangements concluded … in accordance with the relevant provisions of the Treaty’.83 It is not clear whether ‘working arrangements’ would be a different form of legal relationship than agreements pursuant to Article 300 EC. It appears that the borders agency is the only EC agency which would have anything like the wide autonomous external relations powers granted to Europol. Surely it cannot be a coincidence that the borders agency will also operate in the field of Justice and Home Affairs law. Finally, in the case of proposed agencies, there are more limited provisions in the proposal to establish a chemicals agency, which would only be able to invite representatives of third states to participate in its activities, subject to conditions to be determined beforehand by the Commission; and there are no provisions in the proposal to establish the Fisheries Control Agency.84 In practice, the Council and Management Board adopted four sets of relevant rules as provided for in the Europol Convention.85 It also adopted a Decision authorizing the Director of Europol to enter into negotiations with non-EU states and organizations in March 2000.86 This Decision requires that the agreements to be negotiated, if they permit exchange of personal data, must contain provisions concerning receipt of data by Europol, the type of data to be transmitted and the purpose of the transmission or use of the data, and must further comply with all relevant provisions of the Convention and its implementing Regulations.87 If confidential information is to be transmitted, the agreements must contain confidentiality provisions

81

82

83

84

85 86 87

264

Article 7(3) of Reg., ibidem. For the agreement with the Council of Europe, see OJ 1999 L 44/34. On the former, see Article 36(1) of Reg. 881/2004, OJ L 164/1. On the latter, see Article 30 of Reg. 851/2004, OJ 2004 L 142/1. Articles 13 and 14 of Regulation, adopted by JHA Council, 25/26 Oct. 2004, not yet published in the OJ (Council doc. 10827/04, 21 Oct. 2004). On the former, see Article 103 of proposed Regulation (COM(2003) 644, 29 October 2003). On the latter, see COM (2004) 289, 28 April 2004. See OJ 1999 C 26/17; 1999 C 26/19; OJ 1999 C 26/89; and OJ 1999 C 88/1. OJ 2000 C 106/1. Article 1(2) of Decision.

Steve Peers

in accordance with Article 18(6) of the Convention;88 the agreements could also contain provisions on posting of liaison officers to and from Europol and the other contracting party.89 The Council also has further control over Europol’s ability to negotiate treaties involving transmission of personal data, as the Decision provides that Europol could only start negotiations on such treaties if the Council agreed unanimously beforehand that no obstacles existed to the start of negotiations, following, inter alia, consultation of Europol’s Joint Supervisory Board by its Management Board.90 A Declaration to the Council Decision states that this advance appraisal by the Council shall take account of data protection rules in the State or body that Europol wishes to negotiate with.91 The March 2000 Council Decision on Europol negotiations also set out a list of ‘target’ states and organizations which Europol was authorized to negotiate with.92 The initial list comprised Norway, Iceland and Switzerland, the twelve countries then negotiating to join the European Union, Turkey, Russia, the USA, Canada, Morocco, Bolivia, Peru and Colombia, along with Interpol, the World Customs Organisation and the UN Drugs Control Programme. While it is for the Europol Management Board to set priorities within this list,93 the Council adopted a Declaration stating its ‘understanding’ that the Management Board should give priority to applicant countries, Schengen partners (Iceland and Norway), Switzerland and Interpol.94 Subsequently, the list in the March 2000 Council Decision was amended in 2001 to add Monaco and to change the name of the UN drugs agency.95 A further amendment in 2002 added the five States of the Western Balkans (Albania; the Federal Republic of Yugoslavia as it was then; Bosnia-Herzegovina; Croatia; and the former Yugoslav Republic of Macedonia), and a final amendment in 2004 added Ukraine and Moldova.96 The most obvious way to ensure public knowledge of, and access to, treaties subsequently concluded by Europol would be to publish such treaties in the EU’s Official Journal, with the result that the treaties could be easily located in paper form in European documentation centres, and online in the archive of Official Journal back issues, in the archive of EU legislation in force and via the EU’s Celex searchable database. However, only one treaty concluded by Europol has ever been published in the Official Journal.97 So, in order to establish which treaties were negotiated by Europol and to discover their content and their date of entry into force, it is necessary to (metaphorically) dig deeply into quite obscure corners of various websites.

88 89 90 91 92 93 94 95 96 97

Article 1(3) of Decision. Article 1(2) of Decision. Article 1(5) of Decision. OJ 2000 C 106/3. Article 2(1) of Decision. Article 2(2) of Decision. OJ 2000 C 106/4. OJ 2001 C 358/1. OJ 2002 C 150/1 and Council doc. 12371/1/04, 29 Sep. 2004. The treaty with the European Central Bank: see OJ 2002 C 23/9.

265

Governance and the Third Pillar: The Accountability of Europol

The Europol website’s press releases section contains information about a number of agreements which Europol has negotiated.98 The Council’s list of JHA measures, available on the JHA portion of the Council’s website,99 adopted indicates when the Council agreed that Europol could conclude various treaties, although to glean this information it is necessary to read through several years’ listings of all JHA measures adopted. The texts of most treaties concluded by Europol are fully available online in the Council’s register of documents, with certain exceptions. In some cases, the Council’s JHA site also (or alternatively) contains a copy of the relevant treaty texts, which can most easily be found by searching for ‘Europol’ using the search function on the JHA site. In contrast, Europol’s treaties are not listed on the ‘agreements’ section of Council website, which offers extensive details concerning the ratification and entry into force of treaties. None of these websites offer any form of chronology of Europol’s negotiations or even a complete list of the treaties in force. However, we can piece the various fragments of information together in order to construct a chronology and list. First of all, in 2001 Europol concluded treaties with the EU’s two Schengen partners, four of the first five countries to open negotiations for EU membership, one non-European country, one important international organization and one EU body. More precisely, treaties were signed in June 2001 with Iceland and Norway;100 in October 2001 with Estonia;101 in late 2001 with Slovenia, Hungary and Poland;102 in November 2001 with Interpol;103 in November 2001 with the EU’s drugs agency;104 and in December 2001 with the USA.105 Next, Europol’s treaty-making activity in 2002 was more limited; it signed a treaty with the Czech Republic in March,106 98

99 100

101

102

103

104

105

106

266

, last accessed 27 February 2004. . See Press Release of 6 July 2001 on Europol website. These treaties are online in the Council’s JHA site (Council docs. 8801/01 add 1 and 8802/01 add 1, 16 May. 2001). The Transport and Telecoms Council approved the treaties in June 2001: see points 49 and 50 of the list of Council acts adopted in 2001. See Press Release of 10 October 2001 on Europol website. The Culture Council approved the treaty in November 2001: see point 67of the list of Council acts adopted in 2001. The text of the treaty is not available online. The Culture Council approved the treaties in November 2001: see point 67 of the list of Council acts adopted in 2001. There is no press release on these treaties on the Europol website, but a later Europol press release of 17 June 2003 refers to these treaties as ‘completed’. Only the text of the treaty with Hungary is available online (Council doc. 10807/01, 25 July 2001). The Transport and Telecoms Council approved the treaty in June 2001: see point 48 of the list of Council acts adopted in 2001. See also the Press Release of 5 November 2001 on Europol website, which also refers to the Council’s approval. For the text, see Council doc. 8803/01 add 1, 16 May 2001. See Press Release of 19 November 2001 on Europol website. The text does not seem to be available online. See Press Release of 11 Dec. 2001 on Europol website. The JHA Council approved the treaty in December 2001: see point 77 of the list of Council acts adopted in 2001. For the text, see Council doc. 13359/01, 31 October 2001. See Press Release of 5 March 2002 on Europol website. The treaty is online in the Council’s JHA site. The JHA Council approved the treaty in February 2002: see point 13 of the list of Æ

Steve Peers

with the World Customs Organisation apparently in the summer,107 and with the United States (permitting exchange of personal data) in December.108 In 2003 Europol was very busy, signing treaties with a further six candidate Member States, another more distant country, and two EU bodies. More particularly, treaties were signed in January 2003 with the European Central Bank;109 in February 2003 with the Commission (covering relations with OLAF, the Commission’s crime-fighting arm);110 in June 2003 with the Slovak Republic;111 in June 2003 with Bulgaria;112 in July 2003 with Cyprus;113 in October 2003 with Latvia and Lithuania;114 in November 2003 with Russia;115 and in November 2003 with Romania.116 Finally, a number of further treaties were ratified in 2004. In February 2004, Europol signed a treaty with Colombia, restricted to the exchange of strategic and technical information.117 The February 2004 JHA Council then approved draft trea-

107

108

109

110

111

112

113

114

115

116

117

Council acts adopted in 2002 and the Europol press release. For the text, see Council doc. 15267/01, 13 December 2001. The JHA Council approved the treaty in June 2002: see point 37 of the list of Council acts adopted in 2002. A Europol press release of 17 June 2003 confirms that the treaty is ‘in existence’. For the text, see Council doc. 7543/02, 27 March 2002. See Press Release of 20 December 2002 on Europol website. The JHA Council approved the treaty in Dec. 2002: see point 122 of the list of Council acts adopted in 2002. For the text, see Council doc. 15231/02, 5 December 2002. See Press Release of 23 January 2003 on Europol website. The text is published in OJ 2002 C 23/9. See Press Release of 18 February 2003 on Europol website. The text does not appear to be available online. See Press Release of 13 June 2003 on Europol website. The treaty is online in the Council’s JHA site (Council doc. 7679/03, 20 March 2003). The JHA Council approved the treaty in June 2003: see point 47 of the list of Council acts adopted in 2003. See Press Release of 17 June 2003 on Europol website. The treaty is online in the Council’s JHA site (Council doc. 7465/03, 17 March 2003). On the application of this agreement, see also Europol press release of 23 January 2004, idem. The JHA Council approved the treaty in June 2003: see point 46 of the list of Council acts adopted in 2003. See Press Release of 4 July 2003 on Europol website. The treaty is online in the Council’s JHA site (Council doc. 6409/03, 17 February 2003). The JHA Council approved the treaty in June 2003, as noted in the Europol press release: see point 45 of the list of Council acts adopted in 2003. See Press Release of 29 October 2003 on Europol website. The JHA Council approved the treaties in October 2003: see points 85 and 86 of the list of Council acts adopted in 2003. For the texts, see Council docs. 11038/03 and 11039/03, 11 June 2003. See Press Release of 6 November 2003 on Europol website. The employment Council approved the treaty in October 2003, as noted in the Europol press release: see point 88 of the list of Council acts adopted in 2003. For the text, see Council doc. 12583/03, 16 Sep. 2003. See Press Release of 25 November 2003 on Europol website. The JHA Council approved the treaty in November 2003, although the Europol press release gives a different date: see point 91 of the list of Council acts adopted in 2003. For the text, see Council doc. 12622/1/03, 30 September 2003. See Press Release of 9 February 2004 on Europol website. The JHA Council approved the treaty in November 2003: see point 104 of the list of Council acts adopted in 2003. For the text, see Council doc. 12825/01, 25 September 2003.

267

Governance and the Third Pillar: The Accountability of Europol

ties with Turkey and with the UN office of drugs control;118 the March 2004 JHA Council approved a treaty with Malta;119 and the April 2004 JHA Council approved a treaty between Europol and Eurojust.120 Finally, a treaty between Europol and Albania was also apparently under negotiation at time of writing.121 So Europol had agreed treaties with all potential ‘targets’ except Western Balkan countries, Canada, Monaco, Bolivia, Peru and Morocco by November 2004, leaving aside the very new targets of Ukraine and Moldova. However, some of these treaties (particularly the treaties with Russia, Turkey, Colombia and several non-EU bodies) provided only for the exchange of strategic information, not personal data. A particular curiosity is a draft treaty with Switzerland. This was drawn up during 2001 and approved by the Europol Joint Supervisory Body,122 but until mid2004 there was no record of its approval by the Council and no references to it on the Europol website. Eventually Europol announced that the agreement was signed in September 2004, and it appears that the signature was held up due to the EU’s attempt to gain ‘leverage’ over Switzerland in separate negotiations on other treaties, which were agreed in spring 2004.123 Before that point, it was unclear whether or not the treaty with Switzerland had ever entered into force at all, and if not, why not? It can be seen that it is difficult to compile a complete list of the relevant treaties to clarify whether they have entered into force and when, and to find the text of all of them. Even the detailed analysis above entailed extensive research on three different websites which a non-specialist would find it hard to undertake. It would be simple for the Council and/or Europol website to provide a simple list of the treaties with ratification details, linked to the full text of each one. The current situation is so unclear and confusing for any individual who wishes to appraise himself of the practice applicable to Europol’s external relations that one can seriously doubt whether the exchange of personal data under the relevant agreements is in fact ‘prescribed by law’ within the meaning of the jurisprudence of the European Court of Human Rights, which requires a minimum level of foreseeability and clarity in the relevant law before any measures which interfere with the private life of individuals can be justified. Furthermore, taking into account the lack of national or European parliamentary control over the conclusion of such treaties, there is a serious accountability deficit in Europol’s external relations. This is a quite a separate question from the substance of the general rules governing the external relations of Europol with third bodies or the substance of particular agreements, which have

118

119

120

121 122 123

268

For the agreements, see Council docs. 15045/03 and 15046/03, 27 and 21 November 2003. See Press Releases of 16 March and 18 May 2004 on Europol website. See Press Release of 6 April 2004 on Europol website. For the agreement, see Council doc. 16263/03, 9 January 2004. See the Press Release of 9 June 2004 on Europol website and the treaty in Council doc. 15829/03, 9 Dec. 2003. See Press Release of 13 February 2004 on Europol website. Council doc. 15266/01, 13 December 2001. Press Release of 24 September 2004 on Europol website; on the link to other negotiations, see Council doc. 7153/04, 8 March 2004.

Steve Peers

frequently been criticized.124 Finally, it is not clear whether the ECJ has any jurisdiction over these treaties.

8.

Reform of the Europol Framework

8.1.

Amending the Europol Convention

Most recently, the Council had the opportunity to consider far-reaching amendments to Europol’s legal framework when it negotiated a first Protocol extending Europol’s tasks to include participation in joint investigation teams and the issuing of requests to Member States and a second Protocol containing comprehensive amendments to the Convention. An initial discussion paper on these issues (and the linked question of extension of Europol competence to all forms of crime listed in the Annex to the Europol Convention) was prepared by the Swedish Council Presidency as far back as January 2001.125 The Swedish Presidency duly drew up a draft Protocol to extend Europol’s tasks to include the two new issues, and to extend Europol’s competence to all forms of crime in the Convention Annex in the meantime. The latter draft included detailed definitions of the forms of crime in the Annex.126 However, the Europol working party soon agreed that such definitions were not necessary.127 Before long, the Presidency also drew up a further discussion paper on democratic control of Europol,128 although the discussion paper was strictly limited to discussing the role of the European Parliament. This paper began by setting out the status quo, referring to the provisions of the Convention which refer to the Council acting in accordance with ‘the procedures laid down in Title VI’ of the EU Treaty and observing that, following the entry into force of the Treaty of Amsterdam, this now entailed consultation of the EP on each measure in accordance with Article 39 TEU. However, the Presidency argued that this did not entail consultation of the EP on the budget or financial regulation of Europol, since Europol was financed by national contributions and Article 41 TEU on third pillar financing was lex specialis compared to Article 39 TEU. Moreover, several of these references in the Convention to Title VI procedures did not entail decision-making by the Council, so therefore could not entail consultation of the EP; this distinction concerned the Conven124

125

126 127

128

For detailed criticism of the general rules, see Statewatch Bulletin, vol. 8, no. 2, March-April 1998 and 29th report of the House of Lords EU Committee (1997-1998). For detailed criticism of the 2000 Decision, see a Statewatch News Online article with further references, online at: . For criticism of the agreements with the US, see V. Mitsilegas, ‘The New EU-USA Cooperation on Extradition, Mutual Legal Assistance and the Exchange of Police Data’, 8 European Foreign Affairs Review, 2003, p. 515. See Council docs. 5134/01, 9 Jan. 2001 and 5555/01, 22 Jan. 2001, limited to the first Protocol issues, the extension of competence to crimes in the Annex and the further extension of competence to all serious international crime. Council doc. 6876/01, 8 March 2001. See the outcome of proceedings of the meeting on 21 March 2001 (Council doc. 7490/01, 30 March 2001). Council doc. 8677/01, 14 May 2001.

269

Governance and the Third Pillar: The Accountability of Europol

tion clauses dealing with reports of the Management Board, Joint Supervisory Board and the audit committee, and dispute settlement within the Council. Furthermore, there were two references to Council decision-making that did not entail references to the decision-making procedures of Title VI, so did not require consultation of the EP (the budget discharge and approval of the Rules of the supervisory body). The Presidency made no mention of whether to improve the information or consultation rights of the EP in relation to decisions of the Management Board. The Presidency also noted that the EU Ombudsman had jurisdiction to consider complaints against Europol, and listed a number of possible changes to the current practice. These changes comprised the introduction of the co-decision procedure; consultation on budget issues, the appointment and dismissal of the Director and Deputy Directors, the start of negotiations between Europol and third parties, and approval of the Joint Supervisory Board rules of procedure; the transmission of that Board’s activity reports, the Management Board’s reports and the audit report; the oral presentation of reports to the EP; observer status for the EP on the Management Board; and the appearance of the Europol Director before the EP. Of these possible changes, all could be applied de facto by the Council without legal changes to the Convention, except for the application of the co-decision procedure and the inclusion of EP observers on the Management Board. Subsequently, a proposal to extend the competence of Europol to all forms of crime listed in the Convention Annex was taken forward separately, and the Swedish Presidency drew up an initial ‘shopping list’ of possible amendments to the Convention.129 At this point, it was suggested for the first time that the ‘first phase’ amendments concerning only the two agreed extensions of Europol’s tasks should be agreed separately from the sundry ‘second phase’ amendments that could be agreed. The initial shopping list included in particular the adoption of rules on access to documents, replacing the ad hoc rules applied by the Management Board following an investigation by the EU Ombudsman,130 but no suggestions on further democratic control yet. Following suggestions by Member States’ delegations, a longer ‘shopping list’ was drawn up by the Belgian Presidency; the list now included the submission of Management Board reports to the EP and a procedure for simplified amendments to the Convention.131 Initial responses to this list included Commission hostility to the prospect of sending Management Board reports to the EP.132 For its part, the German government requested that the position of the ECJ and the immunities of Europol staff be addressed.133 In late September 2001, the JHA Council set priorities concerning amendment of the Convention, including parliamentary, judicial and control of Europol and

129 130

131 132 133

270

Council doc. 9723/01, 11 June 2001. See the Ombudsman’s Decision on his own-initiative enquiry OI/1/99/IJH, online at: . Council doc. 10979/01, 18 July 2001; and see further Council doc. 11282/01, 31 July 2001. Council doc. 11282/01 add 1, 5 September 2001. Council doc. 11282/1/01 add 1, 20 September 2001.

Steve Peers

simplification of the amendment procedure.134 The Presidency then submitted an informal draft of a first Protocol amending the Convention, including the two new tasks and the proposed extension of competence to all international crime.135 It soon made a further proposal to amend Article 43 of the Convention to provide that any provision of the Convention could be amended by a unanimous decision of the Council, without national parliamentary amendment.136 A later text of a proposed Protocol also included proposed substantial amendments to the ECJ Protocol, which would give the Court power to receive references on the Protocol on privileges and immunities and Council measures implementing the Europol Convention, along with the power to rule on disputes between all Member States on any Europolrelated measures and to rule on the validity of acts implementing the Europol Convention at the behest of the Commission or a Member State. These amendments would have brought the Europol Convention fully into alignment with the judicial regime established by Article 35 TEU, except for the exclusion of the Commission from dispute settlement proceedings.137 The official proposal for a Protocol soon followed, and included a proposal to drop the immunity of Europol staff when they participated in joint investigation teams.138 The amendments to the tasks of Europol were agreed immediately in the Article 36 Committee (a committee of senior officials which assists the Council’s third pillar work), but the issue of amending the Convention was considered separately. The Spanish Presidency asked whether Member States could accept a simplified amendment procedure and, if so, whether such a procedure should simply replace the Convention by a decision, or provide for simplified amendments to some or all of its provisions.139 A Council debate confirmed that the Council wanted to simplify the procedure, but there was no majority support for any of the three options.140 So the Presidency fleshed out these options. Replacement of the Convention by a Council decision raised several issues, in particular whether a Protocol had to abrogate the Europol Convention first (the Council legal service had advised that it did, and most Member States agreed), along with the extent of control by national parliaments (the Presidency pointed out that Member States could require national parliaments to control their delegations’ vote on this issue in the Council if they wished) and the requirement to use qualified majority voting for all measures implementing the Decision (as required by Art. 34 TEU).141 In the meantime, the discussions on the extension of Europol’s tasks continued; by this point any extensions of the ECJ’s jurisdiction had been dropped, although immunity of Europol officers

134

135

136 137 138 139 140 141

Press release of the JHA Council, 27 September 2001. See earlier Presidency note to Coreper/Council, Council doc. 11840/01, 13 September 2001. Council doc. 12491/01, 9 October 2001. See explanatory memorandum in Council doc. 12496/01, 8 October 2001. Council doc. 13284/01, 26 October 2001. Council doc. 14546/01, 27 November 2001. Council doc. 5455/01, 28 January 2002, published in OJ 2002 C 42/8. Council doc. 6579/02, 22 February 2002. JHA Council press release, 28 February 2002. Council doc. 6792/02, 6 March 2002.

271

Governance and the Third Pillar: The Accountability of Europol

participating in joint investigation teams would still have to be waived.142 The Danish government tried to argue that there should be an ‘opt-out’ on this issue,143 but ultimately the final agreed Protocol requires immunity to be waived.144 On the issue of the procedure for amending the Convention, it soon became clear that there was insufficient support for the idea of amending all provisions of the Convention by a Decision, that Member States could only accept amendment of a small number of Convention Articles by means of a Decision, and that Member States were lukewarm about the idea of replacing the entire Convention by a Decision.145 The Article 36 Committee agreed to reject the first option, but could not reach a conclusion about the other two options.146 In any event, the Presidency drew up the entire text of a draft Decision replacing the Convention.147 The Article 36 Committee was still deadlocked, with no movement toward agreeing to further provisions that could be amended by a simplified procedure.148 Ultimately, the Spanish Presidency’s time ran out. Instead, the incoming Danish Presidency immediately made a formal proposal for a further Protocol to the Convention dealing with sundry issues, but not with the issue of simplified amendment.149 The issue of simplified amendment was however raised several more times before the Article 36 Committee, but then allowed to die out.150 The focus was now on the proposed new Protocol, which made no proposals concerning the ECJ, but which included an extension of Europol’s competence to all serious international crime, a requirement to forward Joint Supervisory Body and Management Board reports and the Management Board’s five-year financing plan to the EP, the application of the EC institutions’ access to documents rules to Europol and the possible creation of a joint committee of the EP and national parliaments relating to Europol. The Europol Director could appear before either the EP or this Joint Committee; the Management Board was to draw up rules, acting unanimously, on the Director’s appearances. In its explanatory memorandum, Denmark explained that it was intending to implement all of the points raised in a Commission Communication on democratic control of Europol, which had been released early in 2002.151 This Com142 143 144 145 146 147

148 149

150

151

272

Council doc. 6791/02, 6 March 2002. See Council doc. 6791/2/02, 16 April 2002. See final text of Protocol, supra note 6. Council doc. 7789/02, 10 April 2002. Council doc. 8451/02, 30 April 2002. Council doc. 8452/02, 30 April 2002. Note that Article 45 of this draft Decision assumed that a separate Protocol was needed to abrogate the Convention. See also the explanatory memorandum to this proposal in Council doc. 8452/02 add 1, 16 May 2002. Council doc. 8909/02, 16 May 2002. Council doc. 10307/02, 3 July 2002; OJ 2002 C 172/15. For a critical analysis of the proposed Protocol, see the 5th report of the House of Lords EU Committee (2002-2003). Council doc. 12063/02, 18 September 2002. See later Council doc. 12521/02, 30 September 2002 (outcome of proceedings of the Art. 36 Committee on 19/20 September 2002): the option of replacing the entire Convention by a Decision was dropped at this point. The Presidency was going to return to the issue of simplified amendment for certain provisions, but apparently never did so. Council doc. 10810/02, 10 July 2002. For the Communication, see COM(2002) 95, 26 February 2002.

Steve Peers

munication had not addressed budgetary issues or the ECJ’s jurisdiction, and argued that due to Europol’s limited tasks and the tradition of limited parliamentary control over the police, only a limited number of reforms (as taken up by the Presidency’s proposals) could be envisaged for now. The Member States were soon able to agree on the relevant provisions of the proposed new Protocol, but the reference to the creation of a joint committee of the EP and national parliaments was dropped and the Management Board was given greater discretion to adopt rules on access to documents which differed from those applicable to the EC institutions. Moreover, the Director of Europol could only appear before the EP to discuss ‘general’ questions, and only in order to assist the Council Presidency; also, the prospect of the Management Board adopting rules to govern the Director’s appearances was dropped.152 So the final Protocol makes no changes to the role of the ECJ and essentially confirms the existing position regarding consultation of the EP. The prospect of a useful system of cooperation between the EP and national parliaments was dropped, and there are no additional financial controls for either the EP or national parliaments. The only expansion of EP or national control over operations is the prospect of the Director of Europol appearing before the EP, and then only to assist the Council Presidency. As for external relations, it is possible to interpret the final revised text of Article 34 of the Convention to mean that there has to be consultation before conclusion of treaties. The EP was highly unimpressed by the agreed text: in its view, after the Protocol, ‘the EP will keep its current role with regard to Europol: discussing without anybody listening and making reports without anybody implementing’.153 The Commission’s argument that parliamentary control of police agencies is traditionally limited was rejected by the EP by reference to a number of examples of parliamentary control over appointment and dismissal, budgets, agenda-setting, hearing of management, access to documents and on-the-spot controls and searches.154 At least, with the prospect of simplified amendment or full replacement of the Europol Convention dropped, national parliaments retain their control over any changes to it.

8.2.

The EU Constitutional Treaty155

The EU constitutional Treaty, if ratified, would entail a number of changes regarding the decision-making process and judicial control over JHA matters. The majority of legislation concerning criminal law and policing would be subject to qualified majority voting in the Council with co-decision of the EP, including all aspects of legislation concerning Europol. The Commission would have the dominant role in proposing criminal and policing legislation, sharing its power to propose only 152 153 154 155

See Council doc. 13254/02, 21 October 2002. Turco report (A5-0107/2003), supra note 40. See in detail ibidem. See OJ 2003 C 169 for the text of the Constitution as agreed by the EU’s Constitutional Convention. For the final text signed on 29 Oct. 2004, see Council doc. CIG 87/2/04 rev 2, 29 Oct. 2004.

273

Governance and the Third Pillar: The Accountability of Europol

where by a quarter of Member States make a proposal, rather than any one Member State, as at present. Also, criminal and policing legislation would take the form of ‘normal’ EU laws (Regulations and Directives, to be renamed laws and framework laws) with their normal legal effect, rather than framework decisions, decisions and Conventions as at present. According to the ‘Hague Programme’ (the multi-annual work programme for Justice and Home Affairs) adopted by the European Council in November 2004, the Europol Convention would be replaced by a ‘European law’ by 1 January 2008, shortly after the Constitution entered into force on 1 November 2006, although it is not clear whether the existing Convention would have to be rescinded by a Protocol first under the new legal framework. Judicial control would be expanded by applying the normal rules on the Court of Justice’s jurisdiction (including the possibility for all national courts or tribunals to send questions to the Court of Justice) to all JHA matters in all Member States, with the exception of the validity and proportionality of Member States’ policing actions and the exercise of Member States’ responsibilities as regards the maintenance of law and order and the safeguarding of internal security.156 The EU’s powers over national police cooperation would be broadly unchanged, but the powers and remit of Europol would be expanded to cover all serious crimes with a cross-border element and to permit Europol to coordinate, organize and implement investigations and operations in conjunction with national forces. However, any ‘coercive action’ would have to be carried out by national forces. The new Chapter also contains general articles applicable to all areas of JHA including in particular a standing committee to ensure operational cooperation in internal security (Arts. III-260 and III-261), which would coordinate activities of EU and national bodies dealing with JHA matters (police, customs, border police and possibly even intelligence agencies). National parliaments would have the right to receive information about the standing committee (Art. III-259), and in areas of police and criminal law it would be slightly easier for a group of them to invoke the (non-binding) system to be set up to ask the Commission to rethink its proposals on grounds of subsidiarity (the principle that EU activity should ‘add value’ as compared to Member State activity). Would the proposed new rules cure Europol’s accountability deficit, if adopted in the form proposed? The moves toward qualified majority voting in the Council will likely mean quicker adoption of legislation, and furthermore adoption of legislation that would not have had any chance of success otherwise. This will particularly be the case where the Council currently uses Conventions (most importantly the Europol Convention), where any change in the rules also requires ratification by all national parliaments and so therefore any changes to the basic framework could take years to enter into force. Also, national scrutiny reserves which have been used to delay adoption of JHA legislation due to national parliamentary scrutiny will not mean much when the Council can override such Member States’ reserves by QMV. Clearly the powers for national parliaments foreseen in the pro156

274

Article III-377 of Constitution.

Steve Peers

posed rules are very weak compared to those parliaments’ current position. The power to receive information about the operations of the standing committee would not entail any power of parliamentary control over this committee or a requirement for the chair of standing committee to be accountable before European or national parliaments. Who will the committee be accountable to, and who will be liable if something goes wrong? The planned rules on access to documents (Art. I-50) will apply more fully in the case of legislative activity (Art. III-399) so there is a big risk, based on present practice, that the Council will not disclose to the public what is going on in this standing committee. On the other hand, the EP will have co-decision powers over legislation. This will leave it with the power to insist upon further controls over Europol’s activities; indeed the Constitution states expressly that ‘European laws shall also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with Member States’ national parliaments’. The EP could also insist upon abolition of or limitations upon the immunities of Europol staff. Moreover, there is nothing in the Constitution addressing budgetary issues for the third pillar, so it would apparently be open to argue that Europol could be funded through the EU budget, or even would have to be funded through the EU budget. Finally, the remaining limitation on the ECJ’s jurisdiction over policing matters would arguably not apply to Europol, since, as an EU agency, it is not one of the law enforcement services of a Member State, and its operations do not form part of Member States’ exercise of their responsibilities as regards law, order or security. Taken as a whole, the Constitution would create a system where legislation concerning Europol would be subject to joint control by the European Parliament and full judicial control would be exercised by the EU courts. However, the powers of national parliaments would be dramatically weakened and the extended powers for EU bodies and/or Member States collectively to engage in joint operations would not be subject to sufficient accountability.

9.

Conclusions

Despite some modest welcome changes in the most recent Protocol to the Europol Convention, there are still some fundamental defects with the accountability of Europol. Indeed, as detailed above, the Council passed up the chance to adopt a number of important reforms proposed at various points concerning, inter alia the jurisdiction of the ECJ and the joint role of national parliaments and the ECJ. The modesty of these reforms compares unfavourably with the considerable expansion in Europol tasks, the greater availability of its data, the exchange of information with dozens of third countries and agencies, and the extensive widening of Europol competences. While national parliaments’ ability to control amendments to the Convention have been preserved, this comes at the cost of potential considerable delays in effecting changes to the Convention, including changes which could enhance Europol’s accountability. It is unfortunate that there has never been detailed consideration of a ‘nihil obstat’ procedure for the Europol Convention, which would permit amendments to the Convention enter into force after a certain period if there were no objections from national parliaments. Such an approach would 275

Governance and the Third Pillar: The Accountability of Europol

have maintained national parliamentary control over amendments to the Convention without imposing an unduly lengthy delay upon the process. Under the Constitution, there would be a dramatic increase in Europol’s potential accountability to the EP, but an apparent decrease in the level of control by national parliaments. It is unfortunate that the JHA specialists in the Convention did not take greater care to ensure that national parliaments, many of which have extensive experience in exercising effective scrutiny of policing activities, can play a continuing extensive role beyond the receipt of information on the standing committee and the enhanced subsidiarity threshold. Moreover, the likely increase in operational activities by EU bodies and at EU level by Member States if the Constitution is approved will likely need further mechanisms for control above and beyond those foreseen in the Constitution. Of course, given the uncertainties at time of writing about the prospects of ratification of the Constitutional Treaty, it remained to be seen whether the considerable progress that would be introduced by the Constitution has any chance of ever becoming a reality.

276