Soft Law in European Community Law (Modern Studies in European Law)

SOFT LAW IN EUROPEAN COMMUNITY LAW This book offers the first systematic investigation of the phenomenon of soft law within the framework of the EC (the first pillar of the EU), and its use by the European Commission and Council of Ministers. It focuses upon how soft law fits into the Community legal system, and how it is used and, in particular, how it relates to Community legislation. Differentiation of the Community instruments, including the instruments of soft law, is often thought to enhance the effectiveness, legitimacy and transparency of the Community. This book asks whether soft law indeed provides a satisfactory alternative to legislation from this perspective and, if so, in what cases and under what conditions. Furthermore, the author asks to what extent the use of soft law implies good governance, and throws fresh light on this very heterogenous phenomenon, by looking at frequently used instruments in many different areas of Community law, such as competition law, state aid, environment, social policy etc — in the process identifying their different characteristics, aims, functions and legal effects. What emerges is that the conditions under which soft law is used may be problematic in relation to increasing the legitimacy, effectiveness and transparency of Community action. This is a work which will interest legal practitioners confronted with the use of soft law in an increasing number of sectors and academics interested in the vexing question of how the increased use of soft law can be justified in a Community legal order built upon the rule of law. It is also critical of developments taking place within the framework of the European Convention and the proposed European Constitution, and goes beyond the immediate problems of soft law to touch upon issues such as competence, legal protection, division of powers between the EC and the Member States, institutional balance, lawmaking by the Community Courts, the scope of Community legal principles and the influence of soft law on the progressive development of both Community and national law. Volume 1 in the series, Modern Studies in European Law

Modern Studies in European Law

Volume 1: Soft Law in European Community Law

Soft Law in European Community Law

Linda Senden Department of European and International Public Law, University of Tilburg

OXFORD AND PORTLAND OREGON 2004

Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Linda Senden 2004 Linda Senden has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: [email protected] WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-432-5 (hardback) Typeset by Olympus Infotech Pvt Ltd, India Printed and bound in Great Britain by TJ International, Padstow, Cornwall

Acknowledgements This book is based on the doctoral research I conducted on soft law in European Community law and its relationship to legislation, defended at Tilburg University, the Netherlands in May 2003. It is a slightly adapted version of the thesis edition (published by Wolf Legal Publishers, May 2003). I have approached the issue of soft law from the angle of its use as an alternative to legislation. Such a use was proposed in the 1992 Edinburgh European Council Conclusions, based on the premise that this would contribute to enhancing the legitimacy, effectiveness and transparency of Community action, the biggest challenge faced by the European Union today. At the same time, I have also tried to provide more insight into the different manifestations of Community soft law and its legal effect. In performing this research, I am greatly indebted to many people. First and foremost, I wish to thank my supervisor, Sacha Prechal, for her excellent supervision and continuous encouragement and for giving me the necessary elbow-room to complete it. Without her I would never have ventured upon this challenging project. I am also very grateful to Professors P Kapteyn, L Hancher, EMH Hirsch Ballin, A de Moor-van Vugt and K Mortelmans, for being members of my thesis-examining committee and for their comments and suggestions. I also owe much gratitude to all the student-assistants of the Department of European and International Public Law who over the past years have helped me to gather and list all the material, which in the case of soft law Acts has not always proven to be an easy task. I mention in particular Christophe Paulussen, who has been of great assistance to me at highly critical moments by being very flexible as to time and place of work, even delivering papers to me at home. I also appreciate very much the help I have had from Janneke Kohlen and Marleen Janssens in preparing the manuscript for the sales edition of my book. I have been very fortunate to find myself at the Department of European and International Public Law among colleagues who have been very supportive and helpful during the whole research process and completion of this book. Over the years, many of them have become more than simply colleagues. I wish to mention in particular Elisabetta Manunza, who also has a particular talent for ensuring that working from home is a less solitary affair. But also thanks to Laura, Willem, Pierre, Conny, Helen, Saskia, Petra, Leigh, Mieke and all the others: the Department is an inspiring, warm and fun place to work.

Beyond the Department, I want to acknowledge, in particular, the work done by Janet Taylor, who had a very difficult job correcting my English. I have very much appreciated her ceaseless efforts to improve the manuscript. Needless to say, any remaining obscurities and mistakes are to be blamed on myself. I thank my family and friends for their supportive and understanding friendship. It seems that now this project has truly come to an end. I wish to dedicate this book to my parents, for their constant and generous support in all ways; to Marcel, without whose support and patience it would not have been possible for me to complete this book; and to Julia, for being such a welcome and pleasant distraction to my academic work and for putting everything in the right perspective. Linda Senden Tilburg, May 2004

Table of Contents Table of Cases Table of Soft Law Acts Abbreviations

xvii xxxi lv Part I

1.

2.

Lawmaking in EC Law

Setting the Scene 1.1 Introduction 1.2 The Context of EC Legislation 1.3 Core Characteristics of the EC Legislative Process 1.4 The Crisis in EC Legislation 1.4.1 National Developments 1.4.2 Excessive Quantity 1.4.3 Lack of Quality 1.5 The Challenge: Enhancing the Effectiveness, Legitimacy and Transparency of Community Action 1.6 Meeting the Challenge: A New Legislative Policy 1.6.1 EC Legislation: No Longer ‘Terra Incognita’ 1.6.2 Less and Better Legislation 1.6.3 More Modes of European Governance 1.7 Community Soft Law: An Alternative to Legislation? 1.7.1 The Use of Soft Law in EC Law 1.7.2 The Central Question and its Dual Purpose 1.7.3 Definition and Framework of the Analysis Sources of EC Law and EC Legislation 2.1 Introduction 2.2 Classification into Primary, Secondary and Tertiary Sources of Law 2.3 Primary Sources 2.3.1 The EC, ECSC, EAEC Treaties and Related Acts 2.3.2 Intermezzo: The Necessity of Additional Sources of Law 2.3.3 General Principles of Law 2.3.4 International Treaties Concluded by the EC

3 5 7 9 9 10 11

13 16 16 17 20 23 23 25 29

33 35 37 37 38 39 41

viii

Table of Contents 2.4

2.5 2.6

2.7 3.

Secondary Sources 2.4.1 Legislation 2.4.1.1 The Concept of Legislation in EC Law 2.4.1.2 The Purposes of Harmonisation and Unification 2.4.1.3 Regulations 2.4.1.4 Directives 2.4.2 ‘Individual’ Decisions 2.4.3 Sui Generis Decisions 2.4.4 Relations between the Secondary Sources Tertiary Sources ‘In-Between’ Sources 2.6.1 Agreements Concluded between the Member States 2.6.2 Case Law Conclusions

Guiding Principles for Legislation 3.1 Introduction 3.2 A Broad Conception of Legitimacy: Democracy and Rule of Law 3.3 Democratic Legitimacy Requirement 3.3.1 Formal Democratic Legitimation of the Decision-Making Process 3.3.2 Questions Arising in Relation to Soft Law 3.4 Rule of Law Requirement: The Principle of Conferred Powers 3.4.1 Principle of Legality and Instrumental Function of the Legal Basis Requirement 3.4.2 Principle of Legal Protection and Guarantee Function of the Legal Basis Requirement 3.4.3 External Division of Powers: Competence to Act in Abstracto 3.4.4 Internal Division of Powers: Institutional Balance and Loyal Cooperation 3.4.5 Principle of Democracy 3.4.6 Questions Arising in Relation to Soft Law 3.5 Rule of Law Requirement: The Principle of Subsidiarity 3.5.1 External Exercise of Powers: Competence to Act in Concreto 3.5.2 Criteria for Application 3.5.2.1 Non-Exclusive Competence 3.5.2.2 Effectiveness and Efficiency 3.5.2.3 Democratic Legitimacy

41 41 41 45 46 48 52 53 54 55 56 56 58 59

61 63 66 66 68 68 69 72 73 74 77 78 79 79 82 82 83 84

Table of Contents ix 3.6

3.7

Rule of Law Requirement: Good Governance 3.6.1 Principle of Proportionality 3.6.1.1 Proportionality as a Judicial and Legislative Doctrine 3.6.1.2 Form and Intensity of Community Action 3.6.1.3 Questions Arising in Relation to Soft Law 3.6.2 Principles of Effectiveness and Equality 3.6.2.1 Implications at Community and National Levels 3.6.2.2 Questions Arising in Relation to Soft Law 3.6.3 Principle of Transparency 3.6.3.1 Openness and Accessibility: Article 255 EC 3.6.3.2 Giving Reasons Requirement: Article 253 EC 3.6.3.3 Publication and Notification Requirement: Article 254 EC 3.6.3.4 Principle of Legal Certainty 3.6.3.5 Questions Arising in Relation to Soft Law Conclusions

Part II 4.

5.

86 86 86 89 92 93 93 96 96 97 99 100 101 102 103

Community Soft Law Instruments

Introduction to the Concept of Soft Law in EC Law 4.1 Introduction 4.2 Terminology 4.3 A Definition of Soft Law 4.4 Heterogeneity of the Phenomenon of Soft Law 4.4.1 Two Lines in Legal Writing 4.4.2 Problems Connected with this Heterogeneity 4.5 Prerequisites for Soft Law to Function as an Alternative to Legislation 4.6 A Functional Classification of Soft Law Instruments 4.6.1 Three Main Categories 4.6.2 Three Main Functions 4.7 Approach and Delimitation Categories and Functions of Soft Law 5.1 Introduction 5.2 Preparatory and Informative Instruments 5.2.1 Preparatory Instruments 5.2.1.1 Green Papers

107 109 111 113 113 115 117 118 118 119 121

123 123 124 124

x Table of Contents

5.3

5.4

5.5

5.6

5.2.1.2 White Papers 5.2.1.3 Action Programmes 5.2.2 Informative Instruments 5.2.2.1 Informative, Interpretative and Decisional Communications 5.2.2.2 Inter-Institutional Communications 5.2.2.3 Purely Informative Communications 5.2.2.4 Individual Communications Interpretative and Decisional Instruments 5.3.1 Administrative Rules in EC Law 5.3.2 Interpretative Communications and Notices 5.3.3 Decisional Notices and Communications 5.3.4 Decisional Guidelines, Codes and Frameworks Formal Steering Instruments 5.4.1 The Term and Concept of Steering Instruments 5.4.2 Points of Departure: Article 249 EC and Legal Writing 5.4.3 Commission Recommendations 5.4.3.1 The (Legal) Nature of the Rules 5.4.3.2 Purposes and Functions 5.4.3.3 Adoption, Legal Basis, Publication and Notification 5.4.4 Council Recommendations 5.4.4.1 The (Legal) Nature of the Rules 5.4.4.2 Purposes and Functions 5.4.4.3 Adoption, Legal Basis, Publication and Notification 5.4.5 Commission Opinions Non-Formal Steering Instruments 5.5.1 Introduction: Acts of the Member States in Different Capacities 5.5.2 Council Conclusions 5.5.3 Council Declarations and Member State Declarations 5.5.4 Joint Declarations and Inter-Institutional Agreements 5.5.5 Council Resolutions 5.5.6 Council and Commission Codes of Conduct or Practice 5.5.7 Mixed Conclusions, Declarations and Resolutions Conclusions 5.6.1 Do the Instruments Examined Indeed Constitute Soft Law?

126 128 132 132 133 135 136 138 138 143 148 153 155 155 158 162 162 165 171 173 173 176 183 186 189 189 193 197 200 203 211 216 219 219

Table of Contents xi 5.6.2 5.6.3

Alternatives to Legislation? Possible Contributions to the Effectiveness, Legitimacy and Transparency of Community Action

Part III 6.

221

224

Legal Issues of Community Soft Law

Legally Binding Force 6.1 Introduction 6.2 The Umbrella Concept of ‘Legal Effect’ 6.2.1 A Dual Concept of Legally Binding Force in the EC Treaty 6.2.2 Indirect Legal Effects Recognised in the Case Law 6.2.3 In Summary: An Umbrella Concept 6.2.4 Delimitation of De Facto Effect 6.2.5 A Question of Terminology 6.3 A General Precondition: No Derogation from Hard Law 6.4 ‘Inherent’ Legally Binding Force 6.4.1 A Formal Approach to Hard Law 6.4.2 The Conditions for ‘Inherent’ Legally Binding Force 6.4.3 Differences in Scope 6.5 ‘Incidental’ Legally Binding Force on the Basis of Substance (I) 6.5.1 A Substantive Approach to Soft Law 6.5.2 The Intention of Legally Binding Force 6.5.2.1 Wording and Terms 6.5.2.2 Context and Previous History 6.5.2.3 Other Possible Indicators 6.5.3 New or Existing Legal Effects? 6.5.4 Legal Basis and Exercise of Competence in Conformity Therewith 6.5.5 Some Obscurities 6.5.5.1 Is the Court’s ‘Test’ Complete? 6.5.5.2 Can Binding Measures Be Laid Down in Any Instrument Whatsoever? 6.5.6 The ‘Test’ Summarised 6.5.7 Scope and Implications 6.5.7.1 Implications of Lawful Hard Law in the Clothing of Soft Law: Scope of the Legally Binding Force

235 236 236 239 240 241 242 243 246 246 247 247 248 249 251 251 254 255 258 259 261 261

265 266 267

267

xii

Table of Contents 6.5.7.2

6.6

6.7

6.8 7.

8.

Implications of Unlawful Hard Law in the Clothing of Soft Law: Annulment or Non-Existence? ‘Incidental’ Legally Binding Force on the Basis of Agreement (II) 6.6.1 Introduction 6.6.2 Explicit Provision for ‘Agreed Acts’ in Primary or Secondary EC Law 6.6.3 Existence of a Specific Duty of Cooperation 6.6.4 Scope of the Legally Binding Force An Assessment of the Court’s Approach 6.7.1 Prospects for Legally Binding ‘Soft Law’ on the Basis of the Court’s Test (I) 6.7.2 Prospects for Legally Binding Agreements (II): The Case of Inter-Institutional Agreements 6.7.3 Pros and Cons of the Court’s Approach Conclusions

The Competence to Adopt Soft Law 7.1 Introduction 7.2 The Relevance of the Question of Competence 7.3 The Applicability of the Principle of Conferred Powers 7.3.1 Formal Steering Instruments 7.3.1.1 The Competence of the Commission 7.3.1.2 The Competence of the Council 7.3.2 Non-Formal Steering Instruments 7.3.2.1 The Competence of the Commission 7.3.2.2 The Competence of the Council 7.3.3 Preparatory and Informative Instruments 7.3.4 Interpretative and Decisional Instruments 7.4 Conclusions Indirect Legal Effects for the Legislature 8.1 Introduction 8.2 Implementation Issues of Community Soft Law for the Legislature 8.3 ‘Transposition’ of Soft Law by the Community Legislature 8.3.1 Possible Grounds for an Obligation of Transposition 8.3.2 An Obligation on the Basis of the Treaty or Secondary Legislation? 8.3.3 An Obligation on the Basis of General Principles of Law?

268 270 270 272 273 280 282 282 284 287 289

291 292 295 295 296 301 303 304 304 306 312 319

321 322 325 325 326 331

Table of Contents xiii 8.3.3.1 8.3.3.2

8.4

8.5

8.6

9.

Conflicting Principles An Example: The Re-Regulation of State Aid Law and Policy 8.3.3.3 The Principle of Institutional Balance 8.3.3.4 The Principles of Community Loyalty, Effectiveness and Equal Treatment 8.3.3.5 The Principles of Transparency and Legal Certainty Compliance with Soft Law by the Community Legislature 8.4.1 In Principle a Discretion: The NIFPO Case 8.4.2 An Obligation on the Basis of General Principles of Law? Transposition of and Compliance with Soft Law by the National Legislature 8.5.1 Introduction 8.5.2 In Principle a National Competence 8.5.3 What Obligation on the Basis of Article 10 EC? 8.5.3.1 Legal Writing 8.5.3.2 No General Obligation on the Basis of Article 10 EC 8.5.3.3 An Obligation on the Basis of a Specific Duty of Cooperation: The ‘Hague Fisheries Resolution Cases’ 8.5.4 Possible Restrictions to Transposition Conclusions

Indirect Legal Effects for the Judiciary 9.1 Introduction 9.2 The Power and Task of Interpretation of the European Court of Justice 9.3 Three Possible Roles for Soft Law 9.4 The Role of Soft Law in the Interpretation of Community Law by the Community Courts 9.4.1 The Role Assigned to Interpretative Commission Instruments 9.4.1.1 A Restrictive Approach of the European Court of Justice 9.4.1.2 A Dual Approach of the Court of First Instance 9.4.1.3 Actual ‘Covering’ of the Commission’s Interpretation 9.4.1.4 Conclusion

331 332 334 336 338 340 340 343 345 345 346 348 348 351

352 356 358

361 363 365 366 367 367 370 372 373

xiv Table of Contents 9.4.2

9.5

9.6 9.7

Intermezzo: The Role Assigned to Interpretative Declarations 9.4.2.1 A Favourable Approach to Interpretative Council Declarations 9.4.2.2 An Unfavourable Approach to Member State Declarations 9.4.2.3 Conclusion 9.4.3 The Role Assigned to Preparatory and Steering Instruments 9.4.3.1 A Favourable Approach 9.4.3.2 Conclusion The Role of Community Soft Law in National Courts: Interpretation Aid or Duty of Consistent Interpretation? 9.5.1 In Principle a National Competence 9.5.2 A Shift in the Case Law: The Grimaldi Case 9.5.3 The Scope of the ‘Grimaldi Obligation’ 9.5.3.1 Arguments for a Broad Reading 9.5.3.2 Arguments for a Restrictive Reading 9.5.3.3 Conclusion: A Mandatory Interpretation Aid 9.5.4 To What Law and Soft Law Instruments Does the Obligation Apply? General Implications of the Use of Soft Law as an Interpretation Aid Conclusions

10. Indirect Legal Effects for the Executive 10.1 Introduction 10.2 Questions of Implementation for the Executive 10.3 The Recognition of Self-Binding Effect of Self-Imposed Rules 10.3.1 Approaches in National Law 10.3.2 The Notion or Principles of Good Administration in EC Law 10.3.3 Effectiveness and Legitimacy: Conflicting Principles in This Respect? 10.4 Application and Enforcement of Soft Law by the Community Executive in the Area of Staff Cases 10.4.1 On the Basis of the Equality Principle: the Louwage Formula 10.4.2 On the Basis of the Principles of Patere Legem Quam Ipse Fecisti and Legitimate Expectations

374 374 377 378 380 380 383 384 384 386 387 387 389 391 392 393 397

401 402 404 404 407 410 411 411

415

Table of Contents xv 10.4.3 On the Basis of Essential Procedural Requirements 10.4.4 Limitations and Implications of Self-Binding Effect 10.5 Application and Enforcement of Soft Law by the Community Executive in Other Areas of Law 10.5.1 Preliminary Observations 10.5.2 On the Basis of the Equality Principle 10.5.3 On the Basis of the Principle of Legitimate Expectations 10.5.4 On the Basis of a Duty of Consistency? 10.5.5 Limitations and Implications of Self-Binding Effect 10.6 Application and Enforcement of Soft Law by the National Executive 10.6.1 Different Situations 10.6.2 On the Basis of the Principles of Legitimate Expectations, Equality and Effectiveness? 10.6.3 On the Basis of a Specific Duty of Cooperation 10.7 Conclusions Part IV

417 418 420 420 422 428 431 434 436 436 440 442 447

Summary, Conclusions and Recommendations

11. The Use of Community Soft Law Evaluated 11.1 Introduction 11.2 Soft Law Only a Limited Alternative to Legislation 11.2.1 A Hybrid System of Community Soft Law Instruments 11.2.2 Its Pre-, Post- and Para-Law Functions 11.3 The Legal Effect of Community Soft Law 11.3.1 ‘Inherent’ and ‘Incidental’ Legally Binding Force 11.3.2 Indirect Legal Effects of True Community Soft Law 11.3.2.1 The Legislative Level 11.3.2.2 The Judicial Level 11.3.2.3 The Executive Level 11.4 Implications of Soft Law for Democracy and the Rule of Law 11.4.1 The Legality of Community Soft Law: The Issue of Competence 11.4.2 Democratic Legitimacy 11.4.2.1 Democratic Influence on the Choice of Instrument

453 455 455 457 461 462 467 467 470 474 477 478 482 483

xvi

Table of Contents 11.4.2.2 Democratic Influence in the Adoption Process of Soft Law Acts 11.4.3 Internal Division of Powers 11.4.4 External Division of Powers 11.4.5 Uniformising or Differentiating Effects? 11.4.6 Obscuring or Contributing to Transparency? 11.5 Recommendations

Bibliography Index

486 488 491 494 495 498 503 523

Table of Cases European Court of Justice Case 8/55 Fédération charbonnière de Belgique v ECSC High Authority [1954–56] ECR 245 . . . . . . . . .71–72, 313 Case 8/55 Fédération charbonnière de Belgique v ECSC High Authority [1954–56] ECR 292 . . . . . . . . . . . . . . . . . . . . . . . . .86 Case 9/56 Meroni v ECSC High Authority [1958] ECR 133 . . . . . . . . . . . . .99 Joined cases 1 and 14/57 Usines à tubes de la Sarre v ECSC High Authority [1957] ECR 105 . . . . . . . . . . . .236, 249, 262 Joined cases 7/56 and 3–7/57 Algera & Others v Common Assembly [1957 and 1958] ECR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268 Joined cases 42 and 49/59 SNUPAT v ECSC High Authority [1961] ECR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 Joined cases 16–17/62 Confédération nationale des producteurs de fruits et légumes v Council EEC [1962] ECR 487 . . . . . . .46 Case 24/62 Germany v Commission EEC [1963] ECR 131 . . . . . . . . . .99, 100 Case 25/62 Plaumann v Commission [1963] ECR 95 . . . . . . . . . . . . . . . . . .52 Case 26/62 Van Gend en Loos v Administratie der Belastingen [1963] ECR 1 . . . . . . . . . . . . .26, 33, 110, 364 Joined cases 53 and 54/63 Lemmerz-Werke & Others v ECSC High Authority [1963] ECR 239 . . . . . . . . . . . . . . . . . . . . . . . . . . .269 Joined cases 90–91/63 Commission v Luxemburg and Belgium [1964] ECR . . . . . . . . . . . . . . . . . . . . . . . .243, 250 Jointed cases 90–91/63 Commission v Luxemburg and Belgium [1964] ECR 1217 . . . . . . . . . . . . . . . . . . . . . . . .256 Case 6/64 Costa v ENEL [1964] ECR 585 . . . . . . . . . . . . . . .74, 110, 243, 364 Joined cases 8–11/66 Noordwijks Cement Accoord v Commission [1967] ECR 75 . . . . . . . . . . . . . . . . . . . .238, 262, 264, 266, 329 Case 5/67 Beus GmbH v Hauptzollamt München [1968] ECR 83 . . . . . . . . . . . . . . . . . . . . . . . . . .100 Case 6/68 Zuckerfabrik Watenstedt GmbH v Council [1968] ECR 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Case 14/68 Walf Wilhelm [1969] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Case 5/69 Völk v Vervaecke [1969] ECR 295 . . . . . . . . . . . . . . . . . . . .148, 151 Case 29/69 Stauder v City of Ulm [1969] ECR 419 . . . . . . . . . . . . . . . . . . . .40 Case 38/69 Commission v Italy [1970] ECR 47 . . . . . . . . . . . . . . . . . . . . . .378 Case 74/69 Hauptzollamt Bremen Freihafen v Krohn [1970] ECR 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .338, 368

xviii Table of Cases Case 11/70 Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 86 Case 22/70 Commission v Council (ERTA) [1971] ECR 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56, 82, 236, 250, 262, 267, 270, 282, 353, 354 Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster [1970] ECR 1161 . . . . . . . . . . . . . . . . .10 Case 78/70 Deutsche Grammophon v Metro SB [1971] ECR 487 . . . . . . . .352 Case 1/71 Cadillon v Höss [1971] ECR 351 . . . . . . . . . . . . . . . . . . . . .367, 421 Case 22/71 Béguelin Import v GL Import Export [1971] ECR 949 . . . . . . . . . . . . . . . . . . . . . . . . . .367, 421 Case 46/71 Brandau v Council [1972] ECR 373 . . . . . . . . . . . . . . . . . . . . .411 Joined cases 21–24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219 . . . . . . . . . . . . . . .41 Case 43/72 Merkur-Aussenhandels GmbH v Commission [1973] ECR 1055 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .381, 394 Case 81/72 Commission v Council [1973] ECR 575 . . . . . . . . . . . . . . . . . . . . . . . . . .254, 344, 412, 415–16, 427 Case 4/73 Nold KG v Commission [1974] ECR 491 . . . . . . . . . . . . . . .40, 381 Case 5/73 Balkan-Import-Export GmbH v Hauptzollamt Berlin Packhof [1973] ECR 1091 . . . . . . . . . . . . . . . .266, 329 Case 8/73 Hauptzollamt Bremerhaven v Massey Ferguson [1973] ECR 897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .330 Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252, 271 Case 34/73 Fratelli Variola v Amministrazione delle finanze dello Stato [1973] ECR 981 . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Joined cases 40–48, 50, 54–56, 111, 113 and 114/73 Coöperatieve Vereniging ‘Suiker Unie’ UA v Commission (Sugar Cases) [1975] ECR 1663 . . . . . . . . . . . . . . . . . . . . . .429 Case 148/73 Louwage v Commission [1974] ECR 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .412, 415, 427 Case 149/73 Witt v Hauptzollamt Hamburg Ericus [1973] ECR 1587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245, 384 Case 169/73 Compagnie Continentale France v Council [1975] ECR 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .465 Case 188/73 Grassi v Council [1974] ECR 1099 . . . . . . . . . . . . . . . . .412, 415 Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837 . . . . . . . . . . . . . . . . . . . .11 Case 32/74 Haaga (1974) ECR 1201 . . . . . . . . . . . . . . . . . . . . . . . . . . .385, 388 Case 70/74 Commission v Council [1975] ECR 795 . . . . . . . . . . .412, 415–16 Case 43/75 Defrenne v Société Anonyme Belge de Navigation Aérienne (Defrenne II) [1976] ECR 455 . . . . . . . . . . .244, 245

Table of Cases xix Case 59/75 Pubblico Ministero v Flavia Manghera & Others [1976] ECR 91 . . . . . . . . . . . . . . . .244, 252, 394 Case 105/75 Giuffrida v Council [1976] ECR 1395 . . . . . . . . . . . . . . .325, 411 Case 111/75 Mazzalai v Ferrovia del Renon [1976] ECR 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386, 388 Case 113/75 Frecassetti v Amministrazione delle finanze dello Stato [1976] ECR 983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .385–86 Case 118/75 Watson and Belmann [1976] ECR 1185 . . . . . . . . . . . . . . . . . . .87 Case 11/76 Netherlands v Commission [1979] ECR 245 . . . . . . . . . . . . . . .377 Case 26/76 Metro v Commission [1977] ECR 1875 . . . . . . . . . . . . . . . . . . .252 Case 33/76 Rewe-Zentralfinanz [1976] ECR 1989 . . . . . . . . . . . . . . . . . . . . .94 Case 71/76 Thieffry v Conseil de l’Ordre des Avocats à la cour de Paris [1977] ECR 765 . . . . . . . . . . . . . . . . . . . . . . . . . . .381, 395 Case 90/76 Van Ameyde v UCI [1977] ECR 1091 . . . . . . . . . . . . . . . .245, 394 Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797 . . . . . . . . . . . . . . . . . . . . . . . . .46 Case 19/77 Miller International Schallplatten GmbH v Commission [1978] ECR 131 . . . . . . . . . . . . . . . .367–68, 421, 429 Case 38/77 Enka v Inspecteur der invoerrechten en accijnzen [1977] ECR 2203 . . . . . . . . . . . . . . . . . . . .50 Case 61/77 Commission v Ireland [1978] ECR 417 . . . . . . .353, 355, 443, 470 Case 120/78 Cassis de Dijon [1979] ECR 649 . . . . . . . . . . . . . . .144, 145, 493 Case 136/78 Ministère Public v Auer [1979] ECR 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374, 380–81 Case 141/78 France v UK [1979] ECR 2923 . . . . . . . . . . . . .353–54, 443, 470 Case 230/78 Eridania v Minister for Agriculture and Forestry [1979] ECR 2749 . . . . . . . . . . . . . . . . . . . . . . . .40 Joined cases 253/78 and 1–3/79 Procureur de la République v Giry and Guerlain [1980] ECR 2327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .385 Case 32/79 Commission v United Kingdom [1980] ECR 2403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190, 353–54, 470 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 381 Case 133/79 Sucrimex SA and Westzucker GmbH v Commission [1980] ECR 1299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252 Case 782/79 Geeraerd v Commission [1980] ECR 3651 . . . . . . . . . . . . . . . .417 Case 804/79 Commission v United Kingdom [1981] ECR 1045 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .353, 355, 470 Case 1252/79 Acciaierie e Ferriere Lucchini v Commission [1980] ECR 3753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .418 Case 31/80 L’Oréal v De Nieuwe AMCK [1980] ECR 3775 . . . . . . . . . . . .385 Joined cases 100–3/80 Musique Diffusion Française SA v Commission [1983] ECR 1825 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .423

xx

Table of Cases

Case 158/80 REWE [1981] ECR 1805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Case 169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931 . . . . . . . . . . . . . . . . . .101, 339 Case 182/80 Gauff v Commission [1982] ECR 799 . . . . . . . . . . . . . . . . . . . . . . . . . . .239, 264, 267 Case 211/80 Advernier & Others v Commission [1984] ECR 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 Case 262/80 Andersen & Others v Parliament [1984] ECR 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286, 343 Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49, 248 Case 60/81 International Business Machines Corporation v Commission [1981] ECR 2639 . . . . . . . . . . . . . . . . . . . . . . . . . .236, 238, 251 Joined cases 80–83/81 and 182–185/82 Adam v Commission [1984] ECR 3411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .412 Case 230/81 Luxemburg v European Parliament [1983] ECR 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Case 282/81 Ragusa v Commission [1983] ECR 1245 . . . . . . . . . . . . . . . . .417 Case 289/81 Mavridis v Parliament [1983] ECR 1731 . . . . . . . . . . . . . . . .428 Joined cases 292 and 293/81 Loiret and Haentjes [1982] ECR 3887 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Joined cases 129 and 274/82 Luxemburg v Court of Auditors [1984] ECR 4127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .412 Case 165/82 Commission v the United Kingdom (Male Midwives) [1983] ECR 3431 . . . . . . . . . . . . . . . .339 Case 188/82 Thyssen AG v Commission [1983] ECR 3721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .418–19 Case 190/82 Blomefield v Commission [1983] ECR 3981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .412–13, 418, 420 Case 231/82 Spijker v Commission [1983] ECR 2559 . . . . . . . . . . . . . . . . . .46 Joined cases 240–42, 261–62 and 268-69/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831 . . . . . . . . . . . . . . . .100 Joined cases 286/82 and 26/83 Luisi and Carbone v Ministero dello Tesoro [1984] ECR 377 . . . . . . . . . . . . . . . . . . . . . . . . . . .381 Joined cases 316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Case 324/82, Commission v Belgium [1984] ECR 1861 . . . . . . . . . . . . . . .375 Case 343/82 Michael v Commission [1983] ECR 4023 . . . . . . . . . . . . . . . . . . . . . . . . . . .413, 418–19 Case 13/83 European Parliament v Council [1985] ECR 1513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .326, 329 Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 . . . . . . . . . . . . . . .50, 386, 389

Table of Cases xxi Case 15/83 Denkavit Nederland BV v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171 . . . . . . . . . . . . . . . .87, 387–88 Case 25/83 Buick v Commission [1984] ECR 1773 . . . . . . . . . . . . . . . . . . .412 Case 70/83 Gerda Kloppenburg v Finanzamt Leer [1984] ECR 1075 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 101 Case 143/83 Commission v Denmark [1985] ECR 427 . . . . . . . . . . . .339, 378 Case 147/83 Binderer v Commission [1985] ECR 257 . . . . . . . . . . . . . . . . .247 Case 182/83 Fearon v Irish land Commission [1984] ECR 3677 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Case 263/83 Turner v Commission [1985] ECR 893 . . . . . . . . . . . . . . . . . .417 Case 293/83 Gravier v City of Liège [1985] ECR 593 . . . . . . . . . .395–96, 493 Case 294/83 Parti Ecologiste ‘Les Verts’ v European Parliament [1986] ECR 1339 . . . . . . . . . . . . . . . . .33–34, 237, 242 Case 29/84 Commission v Germany [1985] ECR 1661 . . . . . . . . . . . . . . . . .51 Case 44/84 Hurd v Jones [1986] ECR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Case 59/84 Tezi Textiel BV v Commission of the European Communities [1986] ECR 887 . . . . . . . . . . . . . . . . . . . . . . .101 Case 146/84 De Santis v Court of Auditors [1985] ECR 1723 . . . . . . . . . .314 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Marshall I) [1986] ECR 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Case 162/84 Vlachou v Court of Auditors [1986] ECR 481 . . . . . . . . . .418–19 Case 237/84 Commission v Belgium [1986] ECR 1247 . . . . . . . . . . . . . . . .378 Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .270, 425 Case 53/85 AKZO Chemie BV v Commission [1986] ECR 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 Case 186/85 Commission v Belgium [1987] ECR 2029 . . . . . . . . . . . . . . . .352 Case 239/85 Commission v Belgium [1986] ECR 3657 . . . . . . . . . . . . . . . . .51 Case 247/85 Commission v Belgium [1987] ECR 3060 . . . . . . . . . . . . . . . . .50 Joined cases 281, 283–85 and 287/85 Germany & Others v Commission (non-Community workers) [1987] ECR 3203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72, 307, 381, 396 Case 310/85 Deufil v Commission [1987] ECR 901 . . . . . . . . . . .244, 274, 434 Case 325/85 Ireland v Commission [1987] ECR 5041 . . . . . . . . . . . . . . . . .101 Case 344/85 Ferriere San Carlo v Commission [1987] ECR 4435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .427 Case 429/85 Commission v Italy [1988] ECR 849 . . . . . . . . . . . . . . . . . . . . .51 Case 34/86 Council v European Parliament (Budget) [1986] ECR 2155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286 Case 114/86 UK v Commission [1988] ECR 5289 . . . . . . . . . . . . . . . . . . . .252 Case 131/86 UK v Council [1988] ECR 905 . . . . . . . . . . . . . . . . . . . . . . . .381 Joined cases 181–84/86 Sergio del Plato & Others v Commission [1987] ECR 4991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .413, 427

xxii Table of Cases Case 204/86 Greece v Council [1988] ECR 5323 . . . . . . . . . . . . . . . . . . . . . .77 Case 222/86 UNECTEF v Heylens [1987] ECR 4097 . . . . . . . . . . . . . . . . .263 Case 229/86 Brother Industries v Commission [1987] ECR 3757 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .351, 443 Case 94/87 Commission v Germany [1989] ECR 175 . . . . . . . . . . . . . . . . .357 Case 165/87 Commission v Council [1988] ECR 5545 . . . . . . . . . . . . . . . . .71 Case 226/87 Commission v Greece [1988] ECR 3611 . . . . . . . . . . . . . . . . . .269 Case 242/87 Commission v Council (Erasmus) [1989] ECR 1425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130, 311, 326, 395 Case 301/87 France v Commission [1990] ECR 307 . . . . . . . . . . . . . . . . . .424 Case 2/88 Imm Zwartveld [1990] ECR 3365 . . . . . . . . . . . . . . . . . . . . . .34, 77 Case 70/88 European Parliament v Council of the European Communities [1990] ECR 2041 . . . . . . . . . . . . . . . . . . . . . . .67, 76 Case 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199 . . . . . . . . . . . . . . . . . . . . . . .97 Case 151/88 Italy v Commission [1989] ECR 1255 . . . . . . . . . . . . . . . . . . .252 Case 160/88 R Fédération européenne de la santé animale v Council [1988] ECR 4121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Case 303/88 Italy v Commission [1991] ECR 1433 . . . . . . . . . . . . . . . . . . .424 Case 322/88 Grimaldi (Salvatore) v Fonds des Maladies Professionnelles [1989] ECR 4407 . . . .169, 239–40, 248, 255–57, 268, 297, 347, 383, 386–92, 399, 439, 473 Case 331/88 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte FEDESA & Others [1990] ECR 4023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88–89 Case 361/88 Commission v Germany [1991] ECR 2567 . . . . . . . . . . . . . . . .50 Case 366/88 France v Commission [1990] ECR 3571 . . . . . . . . . . . . . . . . . . . . . . . . . .255, 257–58, 260, 287–88 Case 5/89 Commission v Germany (Bug-Alutechnik) [1990] ECR I–3437 . . . . . . . . . . . . . . . . . . . . . . . . . . . .431 Case 106/89 Marleasing v Comercial Internacional de Alimentación [1990] ECR I–4135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Case 288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I–4007 . . . . . . . . . . . . . . . . . .147 Case 292/89 The Queen v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I–745 . . . . . . . . . . . . . . . . . . .374, 375, 377 Case 298/89 Gibraltar v Council [1993] ECR I–3605 . . . . . . . . . . . .42, 51, 52 Case 300/89 Commission v Council [1991] ECR I–2867 . . . . . . . . . . . . . . . .73 Case 255/90 P Burban v Parliament [1992] ECR I–2253 . . . . . . . . . . . . . .409 Case 266/90 Soba v Hauptzollamt Augsburg [1992] ECR I–287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245, 368, 373 Case 269/90 Technische Universität München v Hauptzollamt München-Mitte [1991] ECR I–5469 . . . . . . . . . . . . . . . . .408

Table of Cases xxiii Case 303/90 France v Commission [1991] ECR I–5315 . . . . .239, 257, 260, 272, 283, 297–98, 351 Case 310/90 Nationale Raad van de Orde der Architecten v Egle [1992] ECR I–177 . . . . . . . . . . . . . . . . . . . . . . . . .375 Case 313/90 CIRFS & Others v Commission [1993] ECR I–1125 . . . . . . . . . . . . . . . . . . . . . . . . . . .154, 244, 274, 278, 281 Opinion 1/91 First EEA Case [1991] ECR I–6079 . . . . . . . . . . . . . . . . .34, 41 Joined cases 31–44/91 Lageder & Others v Amministrazione delle Finanze dello Stato [1993] ECR I–1761 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Case 165/91 Van Munster v Rijksdienst voor Pensioenen [1994] ECR I–4661 . . . . . . . . . . . . . . . . . . .388 Case 188/91 Deutsche Shell v Hauptzollamt Hamburg-Harburg [1993] ECR I–363 . . . . . . . . .239, 386, 388–92, 439, 473 Case 198/91 Cook v Commission [1993] ECR I–2487 . . . . . . . . . . . . . . . . .434 Joined cases 267/91 and 268/91 Keck and Mithouard [1993] ECR I–6097 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Case 325/91 France v Commission [1993] ECR I–3283 . . . . . . . . . . . . . . . .239, 257, 272–73, 279, 283, 338, 339 Case 327/91 France v Commission [1994] ECR I–3641 . . . . . . . . . . . . . . . .251 Joined cases 13–16/92 Driessen & Others v Minister van Verkeer en Waterstaat [1993] ECR I–4751 . . . . . . . . .102, 344 Case 91/92 Faccini Dori v Recreb [1994] ECR I–3325 . . . . . . . . . . . . . .50, 248 Case 137/92 P Commission v BASF & Others [1994] ECR I–2555 . . . . . . . . . . . . . . . . . . . . . . . . .265, 270 Case 188/92 Textilwerke Deggendorf v Bundesrepublik Deutschland [1994] ECR I–833 . . . . . . . . . . . . . . . . . . . .269 Case 200/92 P ICI v Commission [1999] ECR I–4399 . . . . . . . . . . . . . . . . .265 Case 359/92 Germany v Council [1994] ECR I–3681 . . . . . . . . . . . . . . . . . .88 Case 435/92 APAS v Préfet de Maine-et-Loire and Préfet de la Loire-Atlantique [1994] ECR I–67 . . . . . . . . . . . . . . . . . . . . . .51 Case 56/93 Belgium v Commission (Gasunie) [1996] ECR I–723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .424 Case 65/93 Parliament v Council [1995] ECR I–643 . . . . . . . . . . . . . . . . . . .77 Case 135/93 Spain v Commission [1995] ECR I–1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . .279, 281 Case 450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I–3051 . . . . . . . . . . . . . .144, 383, 399 Case 473/93 Commission v Luxemburg [1996] ECR I–3207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372 Case 25/94 Commission v Council [1996] ECR I–1469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284, 375 Case 58/94, Netherlands v Council [1996] ECR I–2169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253, 258, 285, 426

xxiv Table of Cases Case 61/94 Commission v Germany [1996] ECR I–3989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41, 389–90 Joined cases 68/94 and 30/95 France & Others v Commission [1998] ECR I–1375 . . . . . . . . . . . . . . . . . . . . . . . . . . . .238, 377 Case 84/94 UK v Council [1996] ECR I–5755 . . . . . . . . . . .73, 83, 88–89, 100 Case 122/94 Commission v Council [1996] ECR I–881 . . . . . . . . . . . . . . . .100 Case 173/94 Commission v Belgium [1996] ECR I–3265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372 Case 194/94 CIA Security International v Signalson and Securitel [1996] ECR I–2201 . . . . . . . . . . . . . . .145, 345, 372 Case 205/94 Binder v Hauptzollamt Stuttgart-West [1996] ECR I–2871 . . . . . . . . . . . . . . . . . .100 Case 226/94 Grand Garage Albigeois & Others v Garage Massol SARL [1996] ECR I–651 . . . . . . . . . . . . . . . . . .245 Case 233/94 Germany v EP and Council [1997] ECR I–2405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83, 88 Joined cases 283/94 and 291, 292/94 Denkavit International & Others v Bundesamt für Finanzen [1996] ECR I–5063 . . . . . . . . . . . . . . . . . . . . . .378 Case 290/94 Commission v Greece [1996] ECR I–3285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345, 372 Case 309/94 Nissan [1996] ECR I–677 . . . . . . . . . . . . . . . . . . . . . . . . . . . .368 Case 311/94 IJssel-Vliet Combinatie v Minister van Economische Zaken [1996] ECR I–5023 . . . . . . . . . . . . . . . . . . . . . . . . . . . .276, 279, 281, 314, 317, 466 Case 24/95 Land Rheinland-Pfalz v Alcan [1997] ECR I–1591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .431 Case 29/95 Pastoors and Trans-Cap v Belgische Staat [1997] ECR I–285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .394 Case 57/95 France v Commission [1997] ECR I–1627 . . . . . . . . . . . . .28, 132, 139, 142, 143–44, 253, 254–55, 259, 260, 262, 264, 463, 492 Case 120/95 Decker v Caisse de maladie des employés privés [1998] ECR I–1831 . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Case 130/95 Giloy v Hauptzollamt Frankfurt am Main-Ost [1997] ECR I–4291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377 Case 169/95 Spain v Commission [1997] ECR I–135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .314, 434 Case 236/95 Commission v Greece [1996] ECR I–4459 . . . . . . . . . . . . . . . .101 Case 284/95 Safety Hi-Tech v S & T [1998] ECR I–4301 . . . . . . . . . . . . . . .41 Case 292/95 Spain v Commission [1997] ECR I–1931 . . . . . . . . . . . . . . . .279 Case 329/95 VAG Sverige [1997] ECR I–2675 . . . . . . . . . . . . . . . . . . . . . . .375 Case 341/95 Bettati v Safety Hi-Tech Srl [1998] ECR I–4355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Table of Cases xxv Case 392/95 EP v Council [1997] ECR I–3213 . . . . . . . . . . . . . . . . . . . . . . .77 Case 409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I–6363 . . . . . . . . . . . . . . . .383, 471 Case 1/96 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming [1998] ECR I–1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122 Case 4/96 NIFPO and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland, [1998] ECR I–681 . . . . . . . . . . . . . . . .271, 322, 340, 343, 356, 361, 469, 501 Case 53/96 Hermès International v FHT Marketing Choice [1998] ECR I–3603 . . . . . . . . . . . . . . . . . . .388, 391 Case 104/96 Coöperatieve Rabobank “Vecht en Plassengebied” v Minderhout [1997] ECR I–7211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377–78 Case 106/96 UK v Commission [1998] ECR I–2729 . . . . . . . . . . . . . . . . . .308 Case 154/96 Wolfs v Office national des pensions [1998] ECR I–6173 . . . . . . . . . . . . . . . .383, 471 Case 158/96 Kohll v Union des caisses de maladie [1998] ECR I–1931 . . . . . . . . . . . . . . . . . . . . .6 Case 180/96 UK v Commission [1998] ECR I–2265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252 Case 203/96 Chemische Afvalstoffen Dusseldorp & Others v Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1998] ECR I–4075 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .381, 471 Joined cases 239/96 R and 240/96 R UK v Commission of the European Communities [1996] ECR I–4475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236, 253, 257 Case 321/96 Mecklenburg v Kreis Pinneberg [1998] ECR I–3809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .378 Case 368/96 Queen v Licensing Authority established by the Medicines Act 1968, ex parte Generics (UK) Ltd & Others [1998] ECR I–7967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .369, 376, 379 Case 75/97 Belgium v Commission [1999] ECR I–3671 . . . . . . . . . . . . . . . . . . . . . . . . . . . .315, 433 Case 76/97 Tögel v Niederösterreichische Gebietskrankenkasse [1998] ECR I–5357 . . . . . . . . . .361, 377, 382, 386, 399 Case 119/97 P SFEI & Others v Commission [1999] ECR I–1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .325 Case 158/97 Badeck & Others [2000] ECR I–1875 . . . . . . . . . . . . . . .383, 471 Case 404/97 Commission v Portugal [2000] ECR I–4897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .403

xxvi

Table of Cases

Case 443/97 Spain v Commission [2000] ECR I–2415 . . . . . . . . . . . . . . . . . . . .236, 259, 289, 315 Case 83/98 P France v Ladbroke Racing and Commission [2000] ECR I–3271 . . . . . . . . . . . . . . .369 Case 99/98 Austrian Republic v Commission [2001] ECR I–1101 . . . . . . . . . . . . . . . . . . . . . . . .333, 427, 430 Case 156/98 Germany v Commission, [2000] ECR I–6857 . . . . . . . . . . . . .435 Case 206/98 Commission v Belgium [2000] ECR I–3509 . . . . . . . . . . . . . .375 Case 275/98 Unitras Scandinavia [1999] ECR I–8291 . . . . . . . . . . . . . . . . .97 Case 367/98 Commission v Portugal [2002] ECR I–4731 . . . . . . . . . . . . . . . . . . . . . . . . . . .345, 370, 472 Case 376/98 Germany v Parliament and Council [2000] ECR I–8419 . . . . . . . . . . . . . . . . . . . . . . .294 Case 407/98 Abrahamsson and Anderson v Fogelqvist [2000] ECR I–5539 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .383, 471 Case 163/99 Portugal v Commission [2001] ECR I–2613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49, 53 Case 353/99 Council v Hautala [2001] ECR I–9565 . . . . . . . . . . . . . . . . . . .98 Case 382/99 The Netherlands v Commission [2002] ECR I–5163 . . . . . . . . . . . . .315, 431, 433, 435, 475–76 Case 400/99 Italy v Commission [2001] ECR I–7303 . . . . . . . . . . . . .240, 258 Case 483/99 Commission v France [2002] ECR I–4781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345, 370, 472 Case 503/99 Commission v Belgium [2002] ECR I–4809 . . . . . . . . . . . . . . . . . . . . . . . .345–46, 370, 472 Case 241/01 National Farmers’ Union v Secrétariat général du gouvernement [2002] ECR I–9079 . . . . . . . . . . . .269 Case 491/01 British American Tobacco Investments and Imperial Tobacco [2002] ECR I–11453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73 Case 345/02 Pearle & others v Hoofdbedrijfsschap Ambachten, OJ 2002, C 289/13 . . . . . . . . . . . . . . . . .139 Court of First Instance Case T–9/89 Hüls v Commission [1992] ECR II–499 . . . . . . . . . . . . . . . . .427 Case T–13/89 Imperial Chemical Industries v Commission [1992] ECR II–1021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .423 Joined cases T–18 and 24/89 Tagaras v Court of Justice [1991] ECR II–53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Case T–63/89 Latham v Commission [1991] ECR II–19 . . . . . . . . . . .415, 427 Joined cases T–79/89, T–84–86/89, T–89/89, T–91–92/89, T–94/89, T–96/89, T–98/89, T–102/89 and T–104/89 BASF & Others v Commission [1992] ECR II–315 . . . . . . . . . . . . .265, 269

Table of Cases xxvii Case T–113/89 Nefarma & Others v Commission [1990] ECR II–797 . . . . . . . . . . . . . . . . . . . . . . . .242, 297, 348 Case T–156/89 Valverde Mordt v Court of Justice [1991] ECR II–407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .270 Case T–2/90 Ferreira de Freitas v Commission [1991] ECR II–103 . . . . . . . . . . . . . . . . . . . . . . . . .314, 413–14 Case T–30/90 Zoder v European Parliament [1991] ECR II–207 . . . . . . . . . . . . . . . . . . . . . .418–20 Case T–23/91 Maurissen v Court of Auditors [1992] ECR II–2377 . . . . . . . . . . . . . . . . . . . . . . . . . . .413 Case T–33/91 Williams v Court of Auditors [1992] ECR II–2499 . . . . . . . . . . . . . . . . . . . . . . . . . . .418 Case T–9/92 Peugeot v Commission [1993] ECR II–493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245 Case T–5/93 Tremblay & Others v Commission [1995] ECR II–185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Case T–7/93 Langnese-Iglo v Commission [1995] ECR II–1533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .430 Case T–9/93 Schöller v Commission [1995] ECR II–1611 . . . . . . . . . . .55, 430 Case T–10/93, A v Commission, [1994] ECR II–179, IA–119, II–387 . . . . . . . . . . . . . .402, 413 Case T–549/93 D v Commission [1995] ECR FP–IA–13, II–43 . . . . . . . . . . . . . . . . . . . . . . . .414 Case T–115/94 Opel Austria v Council [1997] ECR II–2739 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101, 265 Case T–194/94 Carvel and Guardian Newspapers v Council [1995] ECR II–2765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Case T–229/94 Deutsche Bahn v Commission [1997] ECR II–1689 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .382 Case T–310/94 Gruber + Weber v Commission [1998] ECR II–1043 . . . . . . . . . . . . . . . . . . . . . . . . . . . .370–71 Case T–334/94 Sarrió v Commission [1998] ECR II–1439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .370 Case T–336/94 Efisol v Commission [1996] ECR II–1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .434 Case T–347/94 Mayr-Melnhof Kartongesellschaft v Commission [1998] ECR II–1751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .370 Case T–354/94 Stora Kopparbergs Bergslags AB v Commission [1998] ECR II–2111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .370 Joined cases T–374/94, T–375/94, T–384/94 and T–388/94 European Night Services & Others v Commission [1998] ECR II–3141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371, 430 Case T–380/94 AIUFASS and AKT v Commission [1996] ECR II–2169 . . . . . . . . . . . . . . . .317–18, 423, 425, 431

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Case T–73/95 Oliveira v Commission [1997] ECR II–381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .409 Case T–81/95 Interhotel v Commission [1997] ECR II–1265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Case T–105/95 WWF UK v Commission [1997] ECR II–313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98, 253 Case T–149/95 Ducros v Commission [1997] ECR II–2031 . . . . . . . . . . . . . . . . . . . . . . .155, 316, 431 Case T–174/95 Svenska Journalistförbundet v Council [1998] ECR II–2289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Case T–214/95 Vlaams Gewest v Commission [1998] ECR II–717 . . . . . . . . . . . . . . . . . . . .316, 343, 422, 428 Case T–16/96 Cityflyer Express v Commission [1998] ECR II–757 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .316 Case T–83/96 Van der Wal v Commission [1998] ECR II–545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Case T–124/96 Interporc Im- und Export v Commission [1998] ECR II–231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Joined cases T–126/96 and T–127/96 BFM and EFIM v Commission [1998] ECR II–3437 . . . . . . . . . . . . . . . . . . . . . . . . .435 Joined cases T–132/96 and T–143/96 Freistaat Sachsen & Others v Commission [1999] ECR II–3663 . . . . . . . . . . . . . . . . . . . .279–80, 317, 422 Case T–81/97 Region of Tuscany v Commission [1998] ECR II–2889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252 Case T–126/97 Sonasa v Commission [1999] ECR II–2793 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .408 Case T–188/97 Rothmans International v Commission [1999] ECR II–2463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Joined cases T–204/97 and T–270/97 EPAC v Commission [2000] ECR II–2267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .432 Case T–231/97 New Europe Consulting and Brown v Commission [1999] ECR II–2403 . . . . . . . . . . . . . . . . . . . . . . . .409 Case T–309/97 The Bavarian Lager Company Ltd v Commission [1999] ECR II–3217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Case T–14/98 Hautala v Council [1999] ECR II–2489 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Joined cases T–45/98 and T–47/98 Krupp Thyssen v Commission [2001] ECR II–3757 . . . . . . . . . . . . . . . . .432 Case T–136/98 Campogrande v Commission [2000] ECR FP–IA–267, II–1225 . . . . . . . . . . . . . . . . . . . . .414 Joined cases T–172, 175 and 177/98 Salamander & Others v EP and Council [2000] ECR II–2487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242

Table of Cases xxix Joined cases T–202/98, T–204/98 and T–207/98 Tate & Lyle & Others v Commission [2001] ECR II–2035 . . . . . . . . . . . . . . . . . . . . .432–33, 435–36

Table of Soft Law Acts1 Inconsistency in spelling (eg, standardisation/standardization) in titles of EU documents reflects the varying translation practices of the EU. Green Papers Green Paper on the development of the common market for telecommunications services and equipment: Towards a dynamic European economy, COM(87)290 final . . . . . . . . . . . . . . . . . . . . . . . . . . .126 Green Paper on the urban environment. Communication from the Commission to the Council and Parliament, COM(90)218 final . . .126 Green Paper on the development of European standardization: action for faster technological integration in Europe, COM(90)456 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126 Green Paper on a common approach in the field of satellite communications in the European Community: Towards Europe-wide systems and services, COM(90)490 final . . . . . . . . . . . . . . . . . . . . . . . . . .125 Green Paper on the development of a single market for postal services, COM(91)476 final . . . . . . . . . . . . . . . . . . . . . . .107, 456, 458 Green Paper on pluralism and media concentration in the internal market: An assessment of the need for Community action, COM(92)480 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125 Green Paper on European social policy. Options for the Union, COM(93)551 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125, 127 Green Paper on access to justice of consumers and the settlement of consumer disputes in the single market, COM(93)576 final . . . . . . .125 Green Paper on community energy policy, COM(94)659 final . . . . . . .125 Green Paper on vertical restraints in EC competition policy, COM(96)721 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125 Green Paper on partnership for a new organisation of work, COM(97)128 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126

1 This

Table of Soft Law Acts represents the main Acts on the basis of which the examination in Part II has been conducted.

xxxii Table of Soft Law Acts Green Paper on the convergence of telecommunications, COM(97)623 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125 White Papers White Paper on the completion of the internal market, COM(85)310 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 12, 46, 126, 493 White Paper on European social policy: A way forward for the Union, COM(94)333 final . . . . . . . . . . . . . . . . . . .10, 127–28 White Paper on education and training, COM(95)590 final . . . . . . . . . .127 White Paper on energy policy for the European Union, COM(95)682 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 White Paper on sectors and activities excluded from the working time directive, COM(97)334 final . . . . . . . . . . . . . . . . . .127–28 White Paper on energy for the future: Renewable sources of energy, COM(97)599 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128 White Paper on fair payment for infrastructure use: A phased approach to a common transport infrastructure charging framework in the EU, COM(98)466 final . . . . . . . . . . . . . . . . . . . . . . . . . .127 White Paper on European governance, COM(2001)428 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 15–16, 21–23, 66, 70, 82, 96, 127, 128, 320, 409, 453, 484 Action programmes General Programme for the abolition of restrictions on freedom to provide services, OJ 1962, 2/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128 General Programme for the abolition of restrictions on freedom of establishment, OJ 1962, 2/36 . . . . . . . . . . . . . . . . . . . . . . . . . . .128, 395 Programmes for the elimination of technical barriers to trade in industrial products, OJ 1969, C 76/1 and OJ 1973, C 117/1 . . . . . . . . . .8 First Environmental Action Programme, OJ 1973, C 112/1 . . . . . . . . . .128 Action Programme for the forestry sector, COM(88)255 . . . . . . . . . . . . .129 Medium-term Community Action Programme concerning the economic and social integration of the economically and socially less privileged groups in society, Council Decision 89/457/EEC of 18 July 1989, OJ 1989, L 224/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130

Table of Soft Law Acts xxxiii Action Programme relating to transport infrastructure and the completion of an integrated transport market and its successor, established respectively in Council Regulation 3359/90, OJ 1990, L 326/1 and Council Regulation 1738/93, OJ 1993, L 161/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129, 130 Medium-term Community Action Programme on equal opportunities for men and women (1996 to 2000, Fourth action programme), Council Decision 95/593/EC of 22 December 1995, OJ 1995, L 335/37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24, 131 Medium-term Social Action Programme, Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, COM(95)134 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129 Action Programme for customs in the Community (Customs 2000), Decision 210/97/EC of the EP and the Council of 19 December 1996, OJ 1997, L 33/24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130, 311 Communication from the Commission concerning a Community Action Programme on injury prevention in the context of the framework for action in the field of public health, COM(97)178 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129 Community Action Programme in the field of cultural heritage (Raphael Programme), Decision 2228/97/EC of the EP and the Council of 13 October 1997, OJ 1997, L 305/31 . . . . . . . . . . . . .130, 311 Community Action Programme promoting non-governmental organizations primarily active in the field of environmental protection, Council Decision 97/872/EC, OJ 1997, L 354/25 . . . . . . . . .130 Action Programme to promote milk consumption in the Community and expand the markets for milk and milk products, Communication from the Commission to the Council, COM (97)377 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129 Action Programme to improve the awareness of Community law within the legal professions, OJ 1998, L 196/24 . . . . . . . . . . . . . . . .129 Social Action Programme, COM(98)259 final . . . . . . . . . . . . . . . . . . . . . .129 Informative Communications Communication on giving notice of open competitions, OJ 1983, C 355/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138

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Communication on the decisions of the ECJ of 5 May 1982 and 21 May 1985 (the Gaston Schul cases) relating to the importation by an individual of used goods purchased in another Member State from an individual, OJ 1986, C 13/2 . . . . . . .133 Communication to the Council. A global approach to certification and testing quality measures for industrial products, COM(89)209 final and OJ 1989, C 267/3 . . . . . . . . . . . . . . . . .134 Communication concerning normalisation, COM(90)456 and OJ 1991, C 20/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Communication of the Commission on the Action Programme on equal opportunities for women and men, COM(90) 499 final . . . . . .24 Communication from the Commission on the follow-up to the Green Paper on standardization in the European economy, COM(91) 521 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .521 Communication from the Commission on the application of the subsidiarity principle, Bull EC, 10–1992, p 116–26 . . . .80, 82, 83, 90 Notice on the common position adopted by the Council in accordance with the cooperation procedure laid down in Article 149 (2) of the EEC treaty. Proposal for a council directive widening the scope of directives 65/65/EEC and 75/319/EEC on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products and laying down additional provisions on homeopathic medicinal products, OJ 1992, C 92/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Notice concerning the entry into force of the framework Agreement for cooperation between the European Economic Community and the Eastern Republic of Uruguay, OJ 1994, L 286/40 . . . . . . . . . . . .137 Notice of initiation of a review of Council Regulation 2271/94 imposing a definitive countervailing duty on imports of ball bearings with a greatest external diameter not exceeding 30 mm originating in Thailand but exported to the Community from another country, OJ 1994, C 348/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Communication concerning the implications of the information society for European Union policies. Preparing the next steps, COM(96)395 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Communication on the public consultation on the draft Notice on the application of the competition rules to the postal sector, COM(96)480 final . . . . . . . . . . . . . . . . . . . . . .108, 139, 148–49, 152, 228, 456

Table of Soft Law Acts xxxv Communication on the progress report on the Euromediterranean partnership, COM(97)68 final . . . . . . . . . . . . . . . . .134 Communication on a Community strategy to combat acidification, COM(97)88 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Communication on the EU action plan. Satellite communications in the information society, COM(97)91 final . . . . . . . .134 Communication regarding the consultation on the Green Paper on a numbering policy for telecommunications services in Europe, COM(97)203 final . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Communication on financial services: enhancing consumer confidence. Follow-up to the Green Paper on ‘Financial Services: Meeting Consumers’ Expectations’, COM(97)309 final . . . . .134 Communication on the evaluation of the trade electronic data interchange systems (Tedis) programme, COM(97)335 final . . . . . . . . .134 Communications on the impact of the introduction of the Euro on capital markets, COM(97)337 final . . . . . . . . . . . . . . . . . . . . . . .135 Communication on the practical aspects of the use of the Euro and the use of the Euro symbol, COM(97) 491 final and 418 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Communication on the impact of the changeover to the Euro on Community policies, institutions and legislation, COM(97)560 final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Notice inviting exporting producers to submit evidence warranting the initiation of an interim review of the anti-dumping measures applicable to imports of leather handbags originating in the People’s Republic of China, OJ 1997, C 278/4 . . . . . . . . . . . . . . . .134 Notice to importers in the European Community of controlled substances that deplete the ozone layer regarding Council Regulation 3093/94, OJ 1997, C 285/2 . . . . . . . . . . . . . . . . . . . .137 Notice to users in the European Community of controlled substances allowed for essential uses in the Community in 1998 pursuant to Council Regulation 3093/94 on substances that deplete the ozone layer, OJ 1997, C 285/7 . . . . . . . . . . . . . . . . . . . . . . . . .137 Communication from the Commission pursuant to Article 93(2) of the EC Treaty to the Member States and interested parties regarding aid to the Crédit Agricole, OJ 1998, C 144/6 . . . . . . . . . .137–38

xxxvi

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Commission Notice pursuant to Article 93(2) of the EC Treaty to other Member States and other parties concerning aid granted by the German Government to Brockhansen Holze GmbH, OJ 1998, C 144/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137–38 Notice of open competition, OJ 1998, C 146/19 . . . . . . . . . . . . . . . . . . . .138 Communication in accordance with article 3(1) of Commission Decision of 1 July 1994 concerning the setting up of a conciliation procedure in the context of the clearance of the accounts of the EAGGF, Guarantee Section, OJ 1998, C 150/2 . . . . . . . . . . . . . . . . . . . . .136 Notice of initiation of an anti-dumping proceeding concerning imports of certain stainless steel heavy plates originating in Slovenia and South Africa, OJ 1998, C 289/12 . . . . . . . . . . . . . . . . . . . . .137 Notice of initiation of a review of the anti-dumping measures applicable to imports of certain electronic weighing scales originating in Singapore, OJ 1998, C 324/4 . . . . . . . . . . . . . . . . . . . . . . . .137 Commission Notice concerning the alliance agreements between Air France and Continental Airlines and Air France and Delta Airlines, OJ 1998, C 325/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Notice of the expiry of certain anti-dumping measures, OJ 1998, C 326/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Communication from the Commission to the Council and the European Parliament on the Code of Conduct for business taxation and fiscal state aid, COM(1998)595 . . . . . . . . . . . . . . . . . . . . . . .213

Interpretative Communications and Notices Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on February 20, 1979, in Case 120/78 (Cassis de Dijon), OJ 1980, C 256/2 . . . . . . . . . . . . . . . . .142 Communication on the compatibility with Article 30 of the measures taken by Member States relating to price controls and reimbursement of medicinal products, OJ 1986, C 310/7 . . . . . . . . . . . .147 Commission communication concerning the non-respect of certain provisions of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (the ‘Securitel Communication’), OJ 1986, C 245/4 . . . . . . . . . . . . . . . . . . . . . . . . . .144–45

Table of Soft Law Acts xxxvii Communication concerning the free movement of workers and the access to the public service, OJ 1988, C 72/2 . . . . . . . . . . . . . . . . . . .144 Commission Interpretative Communication concerning the free movement of services across frontiers, OJ 1993, C 334/3 . . . . . . . . . . . .147 Communication on the internal market for pension funds, OJ 1994, C 360/8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .462 Communication from the Commission to the European Parliament and the Council on the interpretation of the judgment of the Court of Justice on 17 October 1995 in Case 450/93, Kalanke v Freie Hansestadt Bremen, COM(96)88 final . . . . . . . . . . . . . . . . . . . . . . . . .144 Interpretative Communication on the freedom to provide services and the concept of ‘general good’ in the second Banking Directive, SEC(97)1193 final, 26 June 1997 . . . . . . . . . . . . . . . . . . . . . . . .147 Commission Interpretative Communication concerning the application of the Single Market rules to the sectors of fairs and exhibitions, OJ 1998, C 143/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Decisional Communications and Notices Notice on exclusive dealing constructs with commercial agents, OJ 1962, 139/2921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Notice on patent licensing agreements, OJ 1962, 139/2922 . . . . . . . . . . . .4 Commission Notice of 27 May 1970 concerning agreements, decisions and concerted practices of minor importance which do not fall under Article 85(1) of the Treaty establishing the European Economic Community (De Minimis Notice), OJ 1970, C 64/1. The amendments which were adopted in respectively 1977, 1986 and 1997 were all published as notices: OJ 1977, C313/3; OJ 1986 C 231/2; OJ 1997, C 372/13 . . . . . . . . . . . . . . . . . . . . . .148, 150, 153 Commission Notice of 23 June 1971 on General Regional Aids Systems, OJ 1971, C 111/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Commission Notice concerning Commission Regulations (EEC) No 1983/83 and (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution and exclusive purchasing agreements, OJ 1984, C 101/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Commission Notice on the rules applicable to cumulation of aid for different purposes, OJ 1985, C 3/2 . . . . . . . . . . . . . . . . . . . . . . . .142

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Draft Notice for the guidelines for operational programmes, OJ 1990, C 324/129 and OJ 1991, C 19/607 . . . . . . . . . . . . . . . . . . . . . . . .150 Commission Communication to the Member States — Application of Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector, OJ 1991, C 273/2 . . . . . . . . . . . . . . . . . . . . .260 Commission Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EC Treaty, OJ 1993, C 39/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149, 444 Draft Notice on the application of the EC competition rules to cross-border transfer systems, COM(94)436 final . . . . . . . . . . . . . . . .151 Notice from the Commission to the Member States laying down guidelines for the operational programmes which Member States are invited to establish in the framework of a Community initiative concerning the outermost regions (REGIS II), OJ 1994, C 205/97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Commission Notice on cooperation between national courts and the Commission in the state aid field, OJ 1995, C 312/8 . . . . . . . . . . . . .444 Commission Notice on the non-imposition or reduction of fines in cartel cases, OJ 1996, C 207/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Draft Notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 85 or 86 of the EC Treaty, OJ 1996, C 262/7 . . . . .149 Commission Notice on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 85 or 86 of the EC Treaty, OJ 1997, C313/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .444–45 Notice on the definition of relevant market for the purposes of Community competition law, OJ 1997, C 372/5 . . . . . . . . . . . . . . . . . . .150 Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services, OJ 1998, C 39/2 . . . . . . .457–59 Notice on the notion of a concentration, OJ 1998, C 66/5 . . . . . . . . .150–51 Notice on the notion of undertakings concerned, OJ 1998, C 66/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150–51 Notice on the calculation of turnover, OJ 1998, C 66/25 . . . . . . . . . .150–51

Table of Soft Law Acts xxxix Notice concerning alignment of procedures for processing mergers under the ECSC and EC Treaties, OJ 1998, C 66/36 . . . . . .150–51 Decisional Guidelines, Frameworks and Codes Commission Guidelines for the examination of state aids in the fisheries and aquaculture sector, OJ 1992, C 152/2. See also OJ 1986, C 83/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .466 Community Framework for national aids for the advertising of agricultural products and certain products not listed in Annex II [now Annex I] to the EC Treaty, excluding fishery products, OJ 1987, C 302/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Guidelines on the application of EEC competition rules in the telecommunications sector, OJ 1991, C 233/2 . . . . . . . . . . . . . . . . . . . . . .155 Community Guidelines for state aid to small and medium-sized enterprises, OJ 1992, C 213/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153–55 Guidelines for the Community postal services, COM(93)247 final of 2 June 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107 Code on aid to the synthetic fibres industry, adopted on 30 March 1996, OJ 1996, C 94/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Community Guidelines on state aid for rescuing and restructuring firms in difficulties, OJ 1997, C 283/2 . . . . . . . . . . . . . . . .432 Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements, OJ 2001, C 3/2 . . . . . . . .143 Guidelines concerning Title III ‘Customs procedures with economic impact’ of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, OJ 2001, C 269/1 . . . . . .377 Recommendations Commission Recommendation to Member States concerning the adoption of a European List of occupational diseases, OJ 1962, L 80/2188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169 65/379/EEC: Commission Recommendation of 7 July 1965 to the Member States on the housing of workers and their families moving within the Community, OJ 1965, L 137/2293 . . . . . . .172

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67/125/EEC: Commission Recommendation of 31 January 1967 to the Member States on the protection of young workers, OJ 1967, 25/405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 68/41/CEE: Recommandation de la Commission, du 20 décembre 1967, adressée au Royaume des Pays-Bas au sujet du project d’un arrêté royal base sur l’article ler alinéas 1 et 3 du project de loi nº 9323, OJ 1968, L 018/12 [not available in English] . . . . . . . . . . . . . . . . . . . . .162 68/147/EEC: Council Recommendation of 9 March 1968 addressed to Member States on the subject of conjunctural policy for 1968, OJ 1968, L 63/5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176 68/335/EEC: Commission Recommendation of 31 July 1968 to the Member States on the structural improvement of the market in the carriage of goods by inland waterway, OJ 1968, L 218/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 69/14/CEE: Recommendation de la Commission, du 11 décembre 1968, en ce qui concerne le projet de loi viticole allemand, OJ 1969, L 18/3 [not found in English] . . . . . . . . . . . . . . . . . . . . . . . . . . .162 73/185/EEC: Commission Recommendation of 15 May 1973 relating to the implementation by the original Member States of the Council Directive of 24 April 1972 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and to the enforcement of the obligation to insure against such liability, OJ 1973, L 194/13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 74/184/EEC: Commission Recommendation of 7 March 1974 addressed to the French Government on measures taken by the latter to implement Council Regulation (EEC) Nos 516/72 and 517/72 of 28 February 1972 (Road passenger transport between Member States), OJ 1974, L 94/20 . . . . . . . . . . . . .162 75/436/Euratom, ECSC, EEC: Council Recommendation of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters, OJ 1975, L 194/1 . . . . . . . . . . . .176 76/493/EEC: Council Recommendation of 4 May 1976 on the rational use of energy in the heating systems of existing buildings, OJ 1976, L 140/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175 77/534/EEC: Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities, OJ 1977, L 212/37 . . . . . . .162, 163, 167, 171, 172

Table of Soft Law Acts xxxxi 82/472/EEC: Council Recommendation of 30 June 1982 concerning the registration of work involving recombinant deoxyribonucleic acid (DNA), OJ 1982, L 213/15 . . . . . . . . . . . . . . . . . .181 82/857/EEC: Council Recommendation of 10 December 1982 on the principles of a Community policy with regard to retirement age, OJ 1982, L 357/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176 83/571/EEC: Council Recommendation of 26 October 1983 concerning tests relating to the placing on the market of proprietary medicinal products, OJ 1983, L 332/11 . . . . . . . . . . . . . . . . .181 84/549/EEC: Council Recommendation of 12 November 1984 concerning the implementation of harmonization in the field of telecommunications, OJ 1984, L 298/49 . . . . . . . . . . . . . . . . . . . . . .177, 183 84/550/EEC: Council Recommendation of 12 November 1984 concerning the first phase of opening up access to public telecommunications contracts, OJ 1984, L 298/51 . . . . . . . . . . . . . .176–77 84/635/EEC: Council Recommendation of 13 December 1984 on the promotion of positive action for women, OJ 1984, L 331/34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .383, 471 84/646/EEC: Council Recommendation of 19 December 1984 on strengthening the cooperation of the national railway companies of the Member States in international passenger and goods transport, OJ 1984, L 333/63 . . . . . . . . . . . . . . . . . . . . . .177, 382 85/308/EEC: Council Recommendation of 13 June 1985 on social protection for volunteer development workers, OJ 1985, L 163/48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184 85/612/EEC: Council Recommendation of 20 December 1985 concerning the second subparagraph of Article 25(1) of Directive 85/611/EEC, OJ 1985, L 375/19 . . . . . . . . . . . . . . . . . . . . . . . . .181 86/379/EEC: Council Recommendation of 24 July 1986 on the employment of disabled people in the Community, OJ 1986, L 225/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175, 184 86/458/EEC: Council Recommendation of 15 September 1986 concerning nationals of the Grand Duchy of Luxembourg who hold a diploma in medicine conferred by a third State, OJ 1986, L 267/30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183 86/659/EEC: Council Recommendation of 22 December 1986 on the coordinated introduction of the integrated services digital network (ISDN) in the European Community, OJ 1986, L 382/36 . . . .174

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86/665/EEC: Council Recommendation of 22 December 1986 on standardized information in existing hotels, OJ 1986, L 384/54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175, 180, 181 86/666/EEC: Council Recommendation of 22 December 1986 on fire safety in existing hotels, OJ 1986, L 384/60 . . . . . . . . . . . . . . . . .181 87/62/EEC: Commission Recommendation of 22 December 1986 on monitoring and controlling large exposures of credit institutions, OJ 1987, L 33/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167, 168 87/63/EEC: Commission Recommendation of 22 December 1986 concerning the introduction of deposit-guarantee schemes in the Community, OJ 1987, L 33/16 . . . . . . . . . . . . . . . . . . . . . . . . .163, 164 87/176/EEC: Council Recommendation of 9 February 1987 concerning tests relating to the placing on the market of proprietary medicinal products, OJ 1987, L 73/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173 87/371/EEC: Council Recommendation of 25 June 1987 on the co-ordinated introduction of public pan-European cellular digital land-based mobile communications in the Community, OJ 1987, L 196/81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185 87/598/EEC: Commission Recommendation of 8 December 1987 on a European Code of Conduct relating to electronic payment (Relations between financial institutions, traders and service establishments, and consumers), OJ 1987, L 365/72 . . . . . . . . . . . . . . . .168 88/285/EEC: Commission Recommendation of 29 March 1988 on third party financing, OJ 1988, L 122/75 . . . . . . . . . . . . . . . . . . . . . . .170 88/590/EEC: Commission Recommendation of 17 November 1988 concerning payment systems, and in particular the relationship between cardholder and card issuer, OJ 1988, L 317/55 . . . . .165, 460, 462 90/109/EEC: Commission Recommendation of 14 February 1990 on the transparency of banking conditions relating to cross-border financial transactions, OJ 1990, L 67/39 . . . . . . . . . . .164, 168 90/246/EEC: Council Recommendation of 28 May 1990 relating to the implementation of a policy of administrative simplification in favour of small and medium-sized enterprises in the Member States, OJ 1990, L 141/55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176 90/543/EEC: Council Recommendation of 9 October 1990 on the coordinated introduction of pan-European land-based public radio paging in the Community, OJ 1990, L 310/23 . . . . . . . . . .175

Table of Soft Law Acts xliii 92/48/EEC: Commission Recommendation of 18 December 1991 on insurance intermediaries, OJ 1992, L 19/32 . . . . . . . . . . . . . . . . . . . . .163 92/131/EEC: Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, OJ 1992, L 49/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166, 361, 414 92/295/EEC: Commission Recommendation of 7 April 1992 on codes of practice for the protection of consumers in respect of contracts negotiated at a distance (distance selling), OJ 1992, L 156/21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 92/382/EEC: Council Recommendation of 5 June 1992 on the harmonized provision of a minimum set of packet-switched data services (PSDS) in accordance with open network provision (ONP) principles, OJ 1992, L 200/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 181 92/383/EEC: Council Recommendation of 5 June 1992 on the provision of harmonized integrated services digital network (ISDN) access arrangements and a minimum set of ISDN offerings in accordance with open network provision (ONP) principles, OJ 1992, L 200/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181 92/441/EEC: Council Recommendation of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems, OJ 1992, L 245/46 . . . . . . . . . . . .176 92/442/EEC: Council Recommendation of 27 July 1992 on the convergence of social protection objectives and policies, OJ 1992, L 245/49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173, 180 92/443/EEC: Council Recommendation of 27 July 1992 concerning the promotion of participation by employed persons in profits and enterprise results (including equity participation), OJ 1992, L 245/53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178 93/404/EEC: Council Recommendation of 30 June 1993 on access to continuing vocational training, OJ 1993, L 181/37 . . . . . . .177 94/284/EC: Commission Recommendation of 19 April 1994 concerning the legal treatment of the ecu and of contracts denominated in ecu in view of the introduction of the single European currency, OJ 1994, L 121/43 . . . . . . . . . . . . . . . . . . . . . . . . . .165 94/1069/EC: Commission Recommendation of 7 December 1994 on the transfer of small and medium-sized enterprises (Text with EEA relevance), OJ 1994, L 385/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

xliv Table of Soft Law Acts 95/144/EC: Council Recommendation of 7 April 1995 on common information technology security evaluation criteria, OJ 1995, L 93/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 181 95/198/EC: Commission Recommendation of 12 May 1995 on payment periods in commercial transactions, OJ 1995, L 127/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172 95/504/EC: Commission Decision of 23 November 1995 repealing Recommendation 88/285/EEC on third party financing, OJ 1995, L 290/9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 95/505/EC: Commission Decision repealing Recommendation 80/823/EEC on the rational use of energy in industrial enterprises, OJ 1995, L 290/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 96/280/EC: Commission Recommendation of 3 April 1996 concerning the definition of small and medium-sized enterprises (Text with EEA relevance), OJ 1996, L 107/4 . . . . . . . . . . . . . . . . . . . . . . . . . . .142 96/694/EC: Council Recommendation of 2 December 1996 on the balanced participation of women and men in the decision-making process, OJ 1996, L 319/11 . . . . . . . . . . .174, 178, 184 96/733/EC: Commission Recommendation of 9 December 1996 concerning Environmental Agreements implementing Community directives (Text with EEA relevance), OJ 1996, L 333/59 . . . . . . . . . . . .166 97/489/EC: Commission Recommendation of 30 July 1997 concerning transactions by electronic payment instruments and in particular the relationship between issuer and holder (Text with EEA relevance), OJ 1997, L 208/52 . . . . . . . . . . . . . . . . .165, 462 97/618/EC: Commission Recommendation of 29 July 1997 concerning the scientific aspects and the presentation of information necessary to support applications for the placing on the market of novel foods and novel food ingredients and the preparation of initial assessment reports under Regulation (EC) No 258/97 of the European Parliament and of the Council (Text with EEA relevance), OJ 1997, L 253/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 98/257/EC: Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (Text with EEA relevance), OJ 1998, L 115/31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163, 172 98/286/EC: Commission Recommendation of 23 April 1998 concerning banking charges for conversion to the euro, OJ 1998, L 130/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170,172

Table of Soft Law Acts xlv 98/287/EC: Commission Recommendation of 23 April 1998 concerning dual display of prices and other monetary amounts, OJ 1998, L 130/26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163, 165 98/288/EC: Commission Recommendation of 23 April 1998 on dialogue, monitoring and information to facilitate the transition to the euro, OJ 1998, L 130/29 . . . . . . . . . . . . . . . . . .163, 164, 172 98/318/EC: Council Recommendation of 3 May 1998 on the appointments of the President, the Vice-President and the other members of the Executive Board of the European Central Bank, OJ 1998, L 139/36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176 98/322/EC: Commission Recommendation of 8 April 1998 on interconnection in a liberalised telecommunications market (Part 2 — Accounting separation and cost accounting) (Text with EEA relevance), OJ 1998, L 141/6 . . . . . . . . . . . . . . . . . . .172, 269, 299 98/370/EC: Commission Recommendation of 27 May 1998 on the ratification of ILO Convention No 177 on home work of 20 June 1996 (notified under document number C (1998) 764), OJ 1998, L 165/32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 98/376/EC: Council Recommendation of 4 June 1998 on a parking card for people with disabilities, OJ 1998, L 167/25 . . . . . . . . . . . . . . . . . . . . .175, 180, 184, 185, 268, 283, 464 98/454/EC: Council Recommendation of 6 July 1998 on the broad guidelines of the economic policies of the Member States and of the Community, OJ 1998, L 200/34 . . . . . . . . . . . . . . . . . . .174 98/463/EC: Council Recommendation of 29 June 1998 on the suitability of blood and plasma donors and the screening of donated blood in the European Community, OJ 1998, L 203/14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .174, 177, 180, 181 98/480/EC: Commission Recommendation of 22 July 1998 concerning good environmental practice for household laundry detergents (notified under document number C (1998) 2163), OJ 1998, L 215/73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 98/485/EC: Commission Recommendation of 1 July 1998 on childcare articles and toys intended to be placed in the mouth by children of less than three years of age, made of soft PVC containing certain phthalates (notified under document number SEC (1998) 738), OJ 1998, L 217/35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172 98/560/EC: Council Recommendation of 24 September 1998 on the development of the competitiveness of the European

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audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity, OJ 1998, L 270/48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175, 177, 180, 470 98/561/EC: Council Recommendation of 24 September 1998 on European cooperation in quality assurance in higher education, OJ 1998, L 270/56 . . . . . . . . . . . . . . . . . . . .177, 182, 185, 460, 486 1999/26/EC: Commission Recommendation of 22 December 1998 concerning a coordinated programme for the official control of foodstuffs for 1999 (notified under number C (1998) 4501), OJ 1999, L 7/34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131, 171 1999/28/EC: Commission Recommendation of 14 December 1998 concerning the improvement of authorisation procedures for trans-European energy networks (notified under document number C (1998) 4063) (Text with EEA relevance), OJ 1999, L 8/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169, 460 1999/63/EC: Commission Recommendation of 13 January 1999 concerning collector coins, medals and tokens (notified under number SEC (1999) 24/2), OJ 1999, L 20/61 . . . . . . . . . . . . . . . . . . . . . . .163 Commission Recommendation of 10 January 2003 concerning a coordinated programme for the official control of foodstuffs for 2003 (Text with EEA relevance) (notified under document number C (2002) 5556), OJ 2003, L 7/76 . . . . . . . . . . . . . . . . . . . . . . . .131, 171 Opinions Draft Commission Opinion of 27 April 1995 on the planned A 20 motorway (Germany) which will intersect the Trebel and Recknitz Valley pursuant to Article 6(4) of Directive 92/43/ EEC on the conservation of natural habitats and of wild fauna and flora, OJ 1995, C 178/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Opinion of the Commission of 1 December 1997 concerning the plan for the disposal of radioactive waste in the final repository for low and intermediate level radioactive waste at Loviisa, Finland, in accordance with Article 37 of the Euratom Treaty, OJ 1997, C 385/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Commission Opinion on Slovenia’s application for Membership of the European Union, COM/97/2010 final . . . . . . . . . .187 Commission Opinion on the Czech Republic’s application for Membership of the European Union, COM/97/2009 final . . . . . . . . . .187

Table of Soft Law Acts xlvii Commission Opinion on Bulgaria’s application for Membership of the European Union, COM/97/2008 final . . . . . . . . . .187 Opinion of the Commission pursuant to Article 189 b (2) (d) of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a European Parliament and Council Decision on a series of guidelines, including the identification of projects of common interest, for trans-European networks for the electronic Interchange of Data between Administrations (IDA), COM/99/0216 final – COD 97/0340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187 Opinion of the Commission pursuant to Article 251(2) (c) of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a European Parliament and Council Regulation (EC) on the European Regional Development Fund, COM/99/0241 final – COD 98/0114 . . . . . . . . . . .187 Commission Opinion of 10 October 2002 concerning the plan for the disposal of radioactive waste arising from the dismantling of the Hunterston. A power station located in the United Kingdom, in accordance with Article 37 of the Euratom Treaty, OJ 2002, C 249/21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Council Conclusions Council Conclusions of 26 May 1987 on protective legislation for women in the Member States of the European Community, OJ 1987, C 178/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197 Conclusions of the Council and of the Ministers responsible for Cultural Affairs meeting within the Council of 27 May 1988 concerning future priority actions in the cultural field, OJ 1988, C 197/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195 Conclusions of the Ministers of Culture meeting within the Council of 12 November 1992 on guidelines for Community cultural action, OJ 1992, C 336/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195 Conclusions of the Council and of the Ministers of Education meeting within the Council of 27 November 1992 on Community/United States cooperation in the field of education and training, OJ 1992, C 336/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191 Council Conclusions of 21 December 1992 on the effective implementation and enforcement of Community legislation in the area of social affairs, OJ 1993, C 49/6 . . . . . . . . . . . . . . . . . . . . . . .195

xlviii Table of Soft Law Acts Council Conclusions of 13 December 1993 on self-sufficiency in blood in the European Community, OJ 1994, C 15/6 . . . . . . . . . . . . .194 Council Conclusions of 17 June 1994 on drawing up a Community Action Plan in the field of cultural heritage, OJ 1994, C 235/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130 Council Conclusions of 20 December 1996 on a strategy for lifelong learning, OJ 1997, C 7/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194–95 Council Conclusions of 20 December 1996 on school effectiveness: Principles and strategies to promote success at school, OJ 1997, C 7/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194 Council Conclusions of 20 December 1996 on a framework of areas for further development, OJ 1997, C 7/7 . . . . . . . . . . . . . . . . . . . . .195 Council Conclusions of 17 February 1997 on local community development through education and training, OJ 1997, C 70/3 . . . . . . . . . . . . .195 Council Conclusions of 27 May 1997 concerning the practical implementation of the Dublin Convention, OJ 1997, C 191/27 . . . . . . .195 Council Conclusions of 22 September 1997 on the communication concerning the White Paper ‘Teaching and learning towards the learning society’, OJ 1997, C 303/8 . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Conclusions of the ECOFIN Council Meeting on 1 December 1997 concerning taxation policy: Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 December 1997 on a code of conduct for business taxation — Taxation of saving, OJ 1998, C 2/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Council Conclusions of 16 December 1997 on the evaluation of quality in school education, OJ 1998, C 1/4 . . . . . . . . . . . . . . . . . . . . .195 Council Conclusions of 9 March 1998 concerning the establishment of the Code of Conduct Group (business taxation), OJ 1998, C 99/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195 Council Conclusions of 26 November 1998 on the future framework for Community action in the field of public health, OJ 1998, C 390/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .460 Joint Declarations, Inter-Institutional Agreements, Codes of Conduct/Practice Joint Declaration by the European Parliament, the Council, the representatives of the Member States, meeting within the Council,

Table of Soft Law Acts xlix and the Commission against racism and xenophobia, of June 1986, OJ 1986, C 158/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .202 Inter-institutional Agreement of 29 June 1988 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure, OJ 1988, L 185/33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201 Declaration by the Council and the Ministers for Health of the Member States, meeting within the Council of 4 June 1991 on action to combat the use of drugs, including the abuse of medicinal products, in sport, OJ 1991, C 170/1 . . . . . . . . . . . .217 Council Declaration of 19 December 1991 on the implementation of the Commission recommendation on the protection of the dignity of women and men at work, including the code of practice to combat sexual harassment, OJ 1992, L 49/1 . . . . . . . . . . . . . . . . . . . . . . .198 Code of Conduct on access to documents adopted by the Commission and the Council in 1993, OJ 1993, L 340/41 . . . . . . . . . . . . . . . . . . . . . . . .98 Declaration of principles of the Council of the European Union and the Ministers for Social Affairs, meeting within the Council of 6 December 1993 to mark the end of the European Year of the elderly and of solidarity between generations (1993), OJ 1993, C 343/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 Council Declaration on the legislative programme, OJ 1994, C 60/25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197 Communication from the Commission of 17 July 1996 ‘A code of practice on the implementation of equal pay for work of equal value for women and men’, COM (96) 336 . . . . . . . . . . . . . . . . . . . . . . . .460 Declaration by the Council and the Representatives of the Governments of the Member States, meeting within the Council of 24 November 1997 on the fight against racism, xenophobia and anti-semitism in the youth field, OJ 1997, C 368/1 . . . . . . . . . . . . .217 Council Declaration made pursuant to Article 2 of the Protocol on the interpretation, OJ 1998, L 351/3 . . . . . . . . . . . . . . . . . . . . . . . . . . .198 Declaration by the Council (Ecofin) and the Ministers meeting in that Council issued on 1 May 1998, OJ 1998, L 139/28 . . . . . . . . . . . . . .217 Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction

l Table of Soft Law Acts and the Recognition and Enforcement of Judgments in Matrimonial Matters, OJ 1998, C 221/02 . . . . . . . . . . . . . . . . . . . . . .199–200 Inter-institutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community Legislation, OJ 1999, C 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227 Joint Declaration of 4 May 1999 on practical arrangements for the new co-decision procedure (Article 251 of the Treaty establishing the European Community), OJ 1999, C 148/1 . . . . . . . . . .201 Resolutions Résolution du Conseil, (produits laitiers), OJ 1962/30 [not published in English] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203 Résolution 64/128 du Conseil sur les principes de base de l’organisation commune des marchés dans le secteur des matières grasses, OJ 1964/34 [not published in English] . . . . . . . . . . . . . . . . . . . . . . . . . . .203 Council Resolution of 20 October 1971 on General Regional Aids Systems, OJ 1971, C 111/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Resolution of the Council and of the Representatives of the Government of the Member States, meeting within the Council, of 13 December 1976 concerning measures to be taken to improve the preparation of young people for work and to facilitate their transition from education to working life, OJ 1976, C 308/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .396 Council Resolution of 15 December 1975 on the Convention for the European Patent for the Common Market, OJ 1976, L 17/43 . . . . . . . . .211 Council Resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with the effect from 1 January 1977, OJ 1981, C 105/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209 Council Resolution of 23 November 1976 concerning measures to simplify agricultural legislation, OJ 1976, C 287/1 . . . . . . . . . . . . . . .204 Council Resolution of 21 December 1976 concerning access to Community public supply contracts for products originating in non-member countries, OJ 1977, C 11/1 . . . . . . . . . . . . . . . . . . . . . . . .203 Council Resolution of 21 December 1976 concerning the review of Directive 77/62/EEC coordinating procedures for the award of public supply contracts, OJ 1977, C 11/3 . . . . . . . . . . . . . . . . . . . . . . .203–4

Table of Soft Law Acts li Council Resolution of 26 June 1978 setting up an action programme of the European Communities on the control and reduction of pollution caused by hydrocarbons discharged at sea, OJ 1978, C 162/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .206 Council Resolution of 6 February 1979 concerning the guidelines for Community regional policy, OJ 1979, C 36/10 . . . . . . . . . . . . . . . . . .204 Council Resolution of 2 April 1979 concerning Directive 79/409/ EEC on the conservation of wild birds, OJ 1979, C 103/6 . . . . . . . . . . .209 Council Resolution of 18 December 1979 on the adaptation of working time, OJ 1980, C 2/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 9 June 1980 concerning Community energy policy objectives for 1990, OJ 1980, C 149/3 . . . . . . . . . . . . . . . . . . . . . . .204 Resolution of the Ministers responsible for Cultural Affairs, meeting within the Council, of 13 June 1985 concerning the annual event ‘European City of Culture’, OJ 1985, C 153/2 . . . . . . . . . . . . . . . .192 Resolution on the EEC Code of Conduct for Community companies operating in South Africa, OJ 1986, C 68/131 . . . . . . . . . . . . . . . . . . .215–16 Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work, OJ 1990, C 157/3 . . . . . . . . . . . . . .361 Resolution of the Council and of the representatives of the Governments of the Member States, meeting within the Council, of 3 December 1990 concerning an action programme on nutrition and health, OJ 1990, C 329/1 . . . . . . . . . . . . . . . . . . . . . . .204, 206 Council Resolution of 21 May 1991 on the third medium-term Community action programme on equal opportunities for women and men (1991–1995), OJ 1991, C 142/1 . . . . . . . . . . . . . . . .130 Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council, of 16 December 1991 concerning a Community action Programme on the accessibility of transport to persons with reduced mobility, OJ 1992, C 18/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131 Council Resolution of 18 June 1992 on the role of European standardization in the European economy, OJ 1992, C 173/1 . . . . . . . .203 Council Resolution of 3 December 1992 on administrative simplification for enterprises, especially small and medium-sized enterprise, OJ 1992, C 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204

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Council Resolution of 8 June 1993 on the quality of drafting of Community legislation, OJ 1993, C 166/1 . . . . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 7 February 1994 on universal service principles in the telecommunications sector, OJ 1994, C 48/1 . . . . . . . . . . . . . . . . .204 Council Resolution of 7 February 1994 on the development of Community postal services, OJ 1994, C 48/3 . . . . . . . . . . . . . . . . . . . . . .203 Council Resolution of 4 April 1995 concerning cooperation with the associated countries of Central and Eastern Europe in the cultural domain, OJ 1995, C 247/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 27 March 1995 on the transposition and application of Community social legislation, OJ 1995, C 168/1 . . . . . .203 Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market, OJ 1995, C 188/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209 Council Resolution of 5 October 1995 on cooperation with third countries in the youth field, OJ 1995, C 296/11 . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 25 June 1996 on industrial cooperation with other regions and third countries, inter alia in the Mediterranean, OJ 1996, C 203/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210 Council Resolutions of 8 July 1996 on cooperation between administrations for the enforcement of legislation on the internal market and on legislative and administrative simplification in the field of the internal market, OJ 1996, C 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 17 Council Resolution of 25 October 1996 on the simplification and rationalization of the Community’s customs regulations and procedures, OJ 1996, C 332/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 12 November 1996 on the integration of health protection requirements into Community policies, OJ 1996, C 374/3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .205 Council Resolution of 2 December 1996 on mainstreaming equal opportunities into European Structural Funds . . . . . . . . . . . . . . . . . . . .205 Resolution of the European Parliament of 12 December 1996, OJ 1997, C 20/159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 Council Resolution of 20 January 1997 on the integration of cultural aspects into Community action, OJ 1997, C 36/4 . . . . . . . . . . . . . . . . . . .204

Table of Soft Law Acts liii Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council of 17 February 1997 on illegal and harmful content on the Internet, OJ 1997, C 70/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218 Council Resolution of 24 February 1997 on a Community strategy for waste management, OJ 1997, C 76/1 . . . . . . . . . . . . . . . . . . . . . . . . . .209 Council Resolution of 9 June 1997 on the exchange of DNA analysis results, OJ 1997, C 193/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 9 June 1997 concerning a handbook for joint customs surveillance operations, OJ 1997, C 193/4 . . . . . . . . . . .206–7, 460 Resolution of the European Council of 7 July 1997 on the legal framework for the introduction of the euro, OJ 1997, C 236/7 . . . . . . .193 Council Resolution of 7 October 1997 on the drafting, implementation and enforcement of Community environmental law, OJ 1997, C 321/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209 Council Resolution of 7 October 1997 on environmental agreements, OJ 1997, C 321/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209 Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 December 1997 on a code of conduct for business taxation, OJ 1998, C 2/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190 Council Resolution of 15 December 1997 on the 1998 Employment Guidelines, OJ 1998, C 30/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .205, 209 Council Resolution of 16 December 1997 on the early teaching of European Union languages, OJ 1998, C 1/2 . . . . . . . . . . . . . . . . . . . . . . .209 Council Resolution of 15 December 1998 on a forestry strategy for the European Union, OJ 1999, C 56/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204 Resolution of the European Parliament on a code of conduct for arms exports, OJ 1998, C 167/226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215 Council Resolution of 17 December 1998 on operating instructions for technical consumer goods, OJ 1998, C 411/1 . . . . . . . . . . . . . . . . . . . . . .204 Council Resolution of 19 January 1999 on the Consumer Dimension of the Information Society, OJ 1999, C 23/1 . . . . . . . . . . . . . . . . . . .204, 206 Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 22 April 1999

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on a Code of Conduct for improved cooperation between authorities of the Member States concerning the combating of transnational social security benefit and contribution fraud and undeclared work, and concerning the transnational hiring-out of workers, OJ 1999, C 125/1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212, 214

Abbreviations AA AAL A-G AJDA Bull EC CDE CEN CENELEC CFI CLJ CMLRev COR DVBl EAEC EC ECJ ECLR ECSC E(E)C EELR ELJ ELRev EMI EMU EP ESC EU EuR EuZW FIDE ICLQ IGC IJCLIR IntSpec JCMS JöR LIEI MEP

Ars Aequi Ars Aequi Libri Advocate-General Actualités juridiques. Droit administratif Bulletin of the European Communities Cahiers de droit européen European Committee for Standardisation European Committee for Technical Standardisation Court of First Instance Cambridge Law Journal Common Market Law Review Committee of the Regions Deutsches Verwaltungsblatt European Atomic Energy Community (Euratom) European Community (Treaty) European Court of Justice European Competition Law Review European Coal and Steel Community European (Economic) Community European Environmental Law Review European Law Journal European Law Review European Monetary Institute Economic and Monetary Union European Parliament Economic and Social Committee European Union Europarecht Europäische Zeitschrift für Wirtschaftsrecht Fédération Internationale pour le Droit Européen International and Comparative Law Quarterly Intergovernmental Conference International Journal of Comparative Labour Law and Industrial Relations Internationale Spectator Journal of Common Market Studies Jahrbuch des öffentlichen Rechts der Gegenwart Legal Issues of European Integration/Legal Issues of Economic Integration Member of European Parliament

lvi

Abbreviations

MJ MLR NGO NJB NJW NTB NTER TRIPS NYIL OJ RAE RIW RGM RTDE SEA SEW TEU ToA U Chi Legal F YBEL ZaöRV ZHR

Maastricht Journal of European and Comparative Law Modern Law Review Non-governmental organisation Nederlands Juristenblad Neue juristische Wochenschrift Nederlands Tijdschrift voor Bestuursrecht Nederlands Tijdschrift voor Europees Recht Agreement on trade-related aspects of intellectual property rights Netherlands Yearbook of International Law Official Journal of the European Communities Revue des affaires européennes Recht der Internationalen Wirtschaft Representatives of the Governments of the Member States Revue trimestrielle de droit européen Single European Act Sociaal-Economische Wetgeving: Tijdschrift voor Europees en economisch recht Treaty on European Union (Maastricht Treaty) Treaty of Amsterdam The University of Chicago Legal Forum Yearbook of European Law Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für das gesammte Handels - und Wirtschaftsrecht

Part I

Lawmaking in EC Law

1 Setting the Scene 1.1

INTRODUCTION

HE USE OF soft law in EC law is both fashionable and problematic.1 Fashionable in view of the increasing flow of Community soft law acts, such as recommendations, communications, notices, guidelines, codes of conduct, declarations. Problematic in that it is un droit au statut incertain, as the European Parliament has observed,2 which raises the question to what extent one can consider these acts to form part of EC law at all. Some authors clearly adhere to a limited concept of law, equating sources of law to those that have been attributed legally binding force in some way. In their conception, the use of the term soft law is a contradictio in terminis; soft law without legal effect is not law and soft law with legal effect is hard law. Others have adopted a far broader view, considering as sources of law all rules, norms and principles that can be invoked in court as standards for review, either as independent standards or as standards for interpretation.3 Taking this latter viewpoint and taking into consideration the role and effect that instruments such as those aforementioned may prove to have in both the Community and the national legal orders — as will be demonstrated in this study—there are no serious objections in my view to the use of the term soft law to denote in particular:

T

rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed at and may produce practical effects.4

In so defining soft law, the emphasis is clearly put on the issue of legal effect and many instruments used in the framework of the EC could possibly 1 Senden

and Prechal (2001), pp 181–99, on which this introduction draws to a large extent. I refer to the EC because the present study is limited to the EC or Community context (first pillar). Where appropriate, I will speak of the EU. 2 Agence Europe, 14 May 1997, no 6973, p 12 and Agence Europe, 21–22 December 1998, no 7369, p 13. 3 See further Section 2.2 on this. 4 See Section 4.3 for a detailed discussion of this definition.

4

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be brought within its scope. Therefore, in addition to this definition, a further classification of soft law instruments is called for, which does justice to the different characteristics and functions of these instruments and the different purposes they fulfil in the Community legal order.5 In this regard, one can start by observing that Community soft law is certainly not a new phenomenon. Its use dates back to the early years of the E(E)C, as the so-called ‘Christmas Communications’ clearly illustrate.6 Moreover, Article 249 (ex 189) EC has always explicitly provided for the instruments of the recommendation and the opinion. What is new, however, is the encouragement of its use and the actual frequency with which the Community institutions are having recourse to soft law instruments.7 In fact, it appears that soft law is being proposed as a means to differentiate the legislative instruments of the EC, ie that in certain cases it is to be adopted instead of legislation. Obviously, this differentiation and in particular the use of soft law as an alternative to legislation is not an end in itself; it is considered to contribute to the effectiveness, legitimacy and transparency of Community action. This follows from the scope that was given to the principles of subsidiarity and proportionality at the European Council Summit in Edinburgh in 1992.8 The Edinburgh Conclusions were confirmed in the Protocol on the application of the principles of subsidiarity and proportionality attached to the Treaty of Amsterdam. More recently, this use of soft law has attracted attention within the framework of the discussion concerning the promotion of new forms and modes of European governance.9 The Convention on the Future of Europe, convened on the basis of the Declaration of the European Council of Laeken10 and assigned the task of drawing up a draft Treaty establishing a Constitution for Europe, also touched upon the issue in the framework of the simplification and redefinition of the Community legal instruments.11 The foregoing raises the question as to how Community soft law instruments and their use fit into the Community legal system and, in

5 See chapter 5 for a detailed discussion. 6 Notice on exclusive dealing constructs

with commercial agents, OJ 1962, 139/2921 and Notice on patent licensing agreements, OJ 1962, 139/2922. 7 Eg the Commission Work Programme of 2000 provided for the adoption of 130 communications, 11 recommendations and 7 Green and White Papers. In comparison, 33 regulations were proposed (of which 18 providing for the amendment, recasting or replacement of existing ones) and 26 directives (of which 15 providing for the amendment, consolidation or replacement of existing ones), COM(2000)155 final. 8 Conclusions of the European Council of Edinburgh, Bull EC 12–1992, p 15. 9 Commission Work Programme 2001, COM(2001)28 final; White Paper on European Governance, COM(2001)428. 10 Laeken Declaration, The Future of European Union, adopted on 15 December 2001, Bull EU 12–2001. 11 See further Subsections 1.6.3 and 2.4.1.

Setting the Scene 5 particular, relate to Community legislation. This is the central question of this study. Several different factors have played a role in the process of (re)discovering the possible usefulness of soft law, and a discussion of these seems to me essential with a view to establishing the framework for the central question and purpose of this book. These factors concern firstly the specific context of EC legislation and a number of core characteristics of the EC legislative process, also revealing the most important limitations of this process (Sections 1.2 and 1.3). Secondly, this context and process have evidently led to shortcomings in terms of output; EC legislation has given rise to a great deal of criticism, as regards both its quantity and quality (Section 1.4). Partly as a result of this, the Community has been faced with a new challenge, namely to make Community action more effective, legitimate and transparent (Section 1.5). With a view to countering the criticism and meeting this challenge, more modes of European governance, including the use of Community soft law instead of legislation, have been put forward as part of a new legislative policy. In this regard, the question is also raised how the use of soft law relates to the increasingly popular open method of coordination (Section 1.6). However, given the many obscurities left by the EC Treaty as to the phenomenon of soft law in EC law, and the ensuing uncertain legal status thereof, one might ask in what cases and under what conditions are soft law instruments indeed capable of functioning as a satisfactory alternative to legislation and contributing to the effectiveness, legitimacy and transparency of Community action? In a nutshell, the main purpose of this book is to formulate an answer to this question (Section 1.7).

1.2

THE CONTEXT OF EC LEGISLATION

La particularité des problèmes que pose la combinaison des droits nationaux et du droit communautaire vient de ce qu’il s’agit, non seulement d’ordres juridiques distincts avec des fondements différents mais, en outre, de droits nationaux différents qui tous doivent être, en même temps combinés de façon suffisamment différenciée pour respecter les sphères d’autonomie des Etats membres mais de façon suffisamment coordonnée voire uniformisée pour assurer le degré d’application uniforme nécessaire à la réalisation des objectifs de l’intégration européenne.12

This quotation from José Mertens de Wilmars, former President of the European Court of Justice, expresses perfectly the complicated context of the issue and process of EC legislation and decision-making.13 The EC

12 Mertens de Wilmars (1991), p 391. 13 Of course the issue and process are

framework of the EU.

even more complex when considered in the broader

6

Lawmaking in EC Law

being an international — supranational — organisation founded only some 45 years ago, the Community legal order is in fact only a new-born or an infant in comparison with the long history of the legal orders of the Member States. Its structure, concepts and system are still in a continuous and dynamic process of development.14 The different national legal systems and legislative traditions not only leave their mark on the way in which these are given shape — the ‘pick and choose’ approach as Timmermans put it15 — but also complicate the legislative process. The steady enlargement of the playing field of the EU from 6 to 15 Member States has only reinforced this, adding moreover a considerable language problem. The Community’s playing field has also changed in another important respect. Its substantive scope has become much larger, as it is no longer restricted to the initial goal of establishing a European common market. The ramifications of the EC Treaty, the heart of the entire body of Community law, are today extending in ever more directions, occasioned both by deliberate Treaty amendment operations and by developments in (legal) practice.16 More sensitive policy areas have thus come within the scope of Community law, such as social policy and the environment. The new designation of the EEC Treaty as the EC Treaty17 also indicates that its objectives have gone beyond the creation of solely an economic Community. A contributory factor here was the wish of the Member States in the post-war years to establish the so-called welfare state, entailing an everincreasing role of the government. This resulted in a considerable increase in socio-economic regulation, including areas such as social security, the environment and consumer protection.18 Since legislative circuits are becoming increasingly interwoven,19 this process at national level also had consequences for legislating at Community level. Although usually aiming at the legitimate protection of general interests, many of the national rules ran counter to the realisation of the internal market by creating new barriers to free trade. Consequently, in order to reconcile the national interests and the aim of European integration, more Community competences and legislation were necessary.20 The developments do not stop there. Enlargement in both breadth and depth is still high on the Community agenda. Suffice it to mention here the establishment of the EMU, the entry into the EU of 10 countries 14 Timmermans 15 Timmermans 16 Inter alia as a

(1997), pp 1231–32. (1997), p 1232. result of interpretation of EC law by the Community courts. See for instance Case C–120/95 Decker [1998] ECR I–1831 and Case C–158/96 Kohll [1998] ECR I–1931. 17 As established by the TEU. See Article 1 EC. 18 Cf Majone (1994), p 328. 19 Hirsch Ballin (1992), p 23. 20 Cf Dehousse (1992) (c), p 5.

Setting the Scene 7 in 2004, the insertion of the Schengen acquis into the EC Treaty and the development of a European asylum and immigration policy. These developments are not without consequences for Community decision-making, as regards both the process of establishing EC legislation, and the resulting body of legislation.

1.3

CORE CHARACTERISTICS OF THE EC LEGISLATIVE PROCESS

First of all, the nature of the EC Treaty itself and the legislative approach laid down therein account for a number of more or less inherent features of the Community legislative process. As the EC Treaty constitutes a traité-cadre and not a traité-loi, it is a fact that legislation is needed to achieve the Community objectives. Moreover, the Treaty contains numerous foundations and obligations for the adoption of legislation. Obviously, in the process of adopting this legislation, the reconciliation of the different legal systems represented in the EC and of the different national interests is a difficult exercise, which in practice necessarily leads to legislation of a high-compromise character. The designation of Community law as ‘droit diplomatique’ is justified from this perspective alone.21 This compromise aspect of EC legislation has been further reinforced by the fact that for a long time legislation in most of the areas covered by the Treaty could only come about through unanimity. The most important general harmonisation clauses, Article 94 EC and Article 308 EC,22 provided for this.23 Consensus was often difficult to achieve owing to the lack of political will and, when it was eventually attained, the final act was not infrequently a weak abstract of the initial proposal. In more general terms, the fact remains that the EC Treaty still provides or allows for a strong influence or even dominance of the Community legislative process of the Member States in the form of the Council of Ministers or otherwise. Thus, at the legislative level, it is clear that the unanimity rule was injurious to the Commission’s right of initiative, as it made deviation from the Commission’s proposal quite easy. And although the influence of the European Parliament in the decision-making process has gradually increased as a result of the various Treaty amendments, and especially the introduction of the co-decision procedure, this influence is still limited, particularly compared with that of national parliaments on the national decision-making processes. For instance, the co-decision procedure does not apply to all areas covered by the Treaty, and the role of the European Parliament in the Treaty amendment process is virtually 21 Timmermans (1997), p 1232. 22 Ex Articles 100 and 235 EC. 23 Until the adoption of Article

100a (now 95) by the Single European Act in 1986.

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non-existent. Also at the level of implementation, even though the Commission is in principle charged with the implementation of EC legislation24 and vested with the necessary delegated decision-making power in this respect,25 the Member States largely control the exercise thereof through the comitology procedure.26 Secondly, the EC legislative process in daily practice ‘voluntarily’ gained a number of characteristics that contributed to the problems we are facing today. Thus, the Luxemburg Agreement led to the situation where decision-making by consensus became in a sense institutionalised, even where the Treaty allowed for decision-making by qualified majority.27 Moreover, for a long time there was a preference for total harmonisation.28 This technique consists of regulating or prescribing in a directive all relevant aspects concerning a certain matter from which the Member States may not derogate, except in so far as allowed by the directive itself.29 The Community rules thus replace de facto the national ones. For a long time, the idea was held that this harmonisation technique best ensured the uniformity of Community law. Besides, the more politically sensitive a certain matter is, the more the Council will want to negotiate down to the details, which normally would be done at the implementation level by the Commission. Finally, the EC legislative process can be characterised as a step-by-step process, as many of the issues are dealt with only piecemeal. This has been the case for some time, and it is due to the degree of (technical) detail involved in the total harmonisation technique, or to the political feasibility in combination with the unanimity requirement. That is to say, a compromise can more easily be reached if one does not propose to regulate too much at one time.30 The resulting body of Community legislation has often been typified as command and control legislation.31 Although, in 24 But the Council may also directly exercise 25 Article 211 EC. 26 In the framework of which national civil

implementing powers. See Article 202 EC.

servants ensure that the Commission does not overstep the boundaries of its delegated power in the implementing measures that it adopts. At the enforcement level as well, by providing for a decentralised rather than centralised administration system, the EC Treaty leaves the application and enforcement of the adopted legislation (mainly) to the Member States. A major exception is the area of competition law, the Commission (still) being involved in its direct enforcement, but decentralisation of this task too is now coming about. 27 Bruha and Kindermann (1986), p 301. 28 This preference was laid down in the Council Resolution of 28 May 1969 drawing up a programme for the elimination of technical barriers to trade in industrial products which result from disparities between the provisions laid down by Law, Regulation or Administrative Action in Member States, OJ 1969, C 76/1. 29 See Slot (1996), pp 382–83. 30 Just some examples in this respect are the numerous directives concerning the recognition of diplomas for specific professions, the directives on equal treatment of men and women, the directives on cross-border pollution and the protection of workers directives. 31 Dehousse (1992) (c), p 8. Cf also de Ru (1992), p 34.

Setting the Scene 9 theory at least, this kind of legislation does ensure that the same rules apply throughout the Community and as such does enhance European integration, it has also given cause for a great deal of criticism.

1.4

1.4.1

THE CRISIS IN EC LEGISLATION

National Developments

In some Member States, the extent of national government interference began to be called into question as early as the 1970s. During the 1980s, the drawbacks of this comprehensive interference emerged ever more clearly and the resulting body of legislation was increasingly criticised, in terms of both quantity and quality. In particular, the instrumental function of legislation and its perceived ability to steer and change society came increasingly under fire. The extent to which society can be moulded by means of law was more and more questioned. This further reinforced the call for deregulation and self-regulation in several Member States.32 Not surprisingly, in particular in view of the interwovenness of the European and national legislative circuits, the Community approach to lawmaking was at odds with such national deregulatory trends: less government and legislative interference at national level is difficult, if not impossible, to achieve without a parallel development or strategy at Community level.33 As pointedly formulated by Mrs. Thatcher in her notorious Bruges speech: We have not successfully rolled back the frontiers of the state in Britain only to see them re-imposed at a European level, with a European super-state exercising a new dominance from Brussels.34

Thus, the criticism had a spill-over effect at the Community level; the body of Community legislation too became the subject of criticism from the mid-80s, because of its perceived excessive quantity and lack of quality. Complaints of this kind were made not only by authorities of the Member States, but also by companies, individuals and non-governmental organisations.35 National authorities pointed in particular to the problems posed by Community legislation in terms of its transposition, application, compliance and enforcement at the national level, also in view of the differing legal, administrative and enforcement practices in the Member States.

32 Molitor (1995), pp 875–77. 33 Cf Molitor (1995), pp 880–81. 34 As quoted by Dehousse (1992) (c), p 1. 35 Several studies have been conducted in

this respect, eg Bracke (1996), Kellermann (1998).

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Lawmaking in EC Law

On the part of industry, it was felt in particular that Community legislation too greatly hampered the operation of free market forces, that it imposed too high a financial and administrative burden with detrimental effects on its competitiveness, and that it created legal uncertainty for the economic operator.36

1.4.2

Excessive Quantity

The particular features of the EC legislative process have indeed resulted in the production of a huge body of legislation. Moreover, this deluge of legislation has been aggravated by the fact that Community legislation is often amended,37 a tendency which has been reinforced by the total harmonisation technique, as the establishment of very precise and detailed technical rules requires their frequent adaptation or refinement. A further complicating factor has been the stacking of amendment upon amendment, which means that usually only the amendments of a regulation or directive are published and that the old text remains in force in so far as it has not been amended. The result of this is multi-layered legislation. The quantity problem has been further exacerbated by the fact that the EC Treaty contains only a very limited catalogue of sources in its Article 249 EC. In particular, it makes no distinction between legislative and implementing instruments.38 Consequently, the same instruments have to be used for the adoption of these two different kinds of acts. As a result, the nature of a directive or a regulation can be that of a basic legislative act, but it can also be that of an act implementing such a basic act. Yet, not in all cases would the adoption of such a formal act be necessary. The agricultural sector clearly illustrates this. Market and price policy are almost exclusively cast in regulations, whereas at the national level they would be cast in internal directives and circulars.39 Some have considered the White Paper on the Internal Market, adopted by the Commission in 1985,40 to be an early ‘exercise in deregulation’.41

36 See eg Sutherland Report (SEC(92)2044), the Report of the group of independent experts on legislative and administrative simplification of 21 May 1995 (Molitor Report; COM(95)288), Deregulation Now Report, UNICE Regulatory Report 1995, ‘Releasing Europe’s Potential through Targeted Regulatory Reform’. See also Barents (1994), p 102. 37 In the area of common (agricultural) policy for instance this is logical, as prices, supply and demand change very rapidly and the effectiveness of legislation can only be guaranteed by continuous and rapid adaptation to these changing economic circumstances. See Barents (1994). 38 In case law such a distinction has been made eg in Case 25/70 Köster [1970] ECR 1161. 39 See Barents (1994), p 108. 40 COM(85)310 final. 41 Cf Pelkmans (1988), p 364.

Setting the Scene 11 This in particular because the New Approach Strategy42 and the mutual recognition rule43 which it laid down were intended to entail less (detailed) legislation. However, initially at least, these new harmonisation methods simply added to the quantity problem, as the White Paper was primarily a passing manoeuvre to finally establish the internal market. For the time-consuming total harmonisation technique had resulted in serious delays in decision-making and consequently in the establishment of the internal market. By facilitating legislative harmonisation, these methods thus led to an increase in legislation.44 The partial replacement of the unanimity requirement by the qualified majority rule had the same effect. At the same time, these adaptations of the legislative process had only limited results. In those cases where the mutual recognition rule and the New Approach could not be applied or their application was simply unsatisfactory, legislation continued to be rather detailed. This reinforced the criticism of Community legislation towards the end of the 1980s, when the call for more liberal operation of market forces was growing louder and louder.

1.4.3

Lack of Quality

In the main, the criticism voiced on the quality of EC legislation concerns three aspects: its form, substance and democratic quality.45 In particular, EC legislation is perceived to be far from transparent and accessible, leading to legal uncertainty. Without pretending to be exhaustive here, it is largely the fragmented and high-compromise nature, the detailedness and the lack of internal consistency of EC legislation that account for this. These flaws will be briefly considered. The fragmented nature of Community legislation, resulting from the step-by-step approach of the EC legislative process, makes necessary an analysis of several different acts in order to obtain a picture of the applicable law in a certain field. The aforementioned layered nature of EC legislation also contributes to this. Modifications of legislation may even not come about by formal amendment, but result as a matter of fact from the 42 As

a result of which only basic requirements or rules are to be laid down in directives and the specified, technical harmonisation is to be left to European normalisation institutes. 43 Making harmonisation of national rules even superfluous to a certain extent. See also Case 8/74 Dassonville [1974] ECR 837. 44 A total of 350 legislative measures were presented. In the longer run, however, the realisation of the internal market as a result of the adoption of these measures can indeed be said to involve deregulation. 45 Cf Barents (1994), Hirsch Ballin (1992), Bracke (1996). However, the emphasis placed on these aspects may of course differ.

12

Lawmaking in EC Law

adoption of another legislative act. Only when these pieces of legislation are put together, does the jigsaw become (more or less) complete. The high-compromise nature of EC legislation manifests itself, on the one hand, in the adoption of special clauses, temporary derogations and transitional provisions and, on the other, in vague and unclear wording. Specific terms may be ill-defined or even not defined or described at all.46 The diversity of the legal cultures represented in the EC adds to this the risk that such terms might be interpreted differently, as they may have a particular national meaning or may even not exist at all in the national legal order. Not to mention the risks that are involved in the translation of this legislation into all the official languages of the EC. Since the discussions within the Council usually take place behind closed doors and EC decisions47 lack an explanatory statement, the correct implementation and interpretation of Community law poses considerable problems for national authorities.48 With respect to the detailed nature of Community (agricultural) legislation, Advocate-General VerLoren van Themaat observed in his opinion in the Loiret and Haentjes Case that ‘very soon the lawyer will get the impression of having descended into a labyrinth’.49 The detailedness of EC legislation has been criticised for a variety of reasons, the following in particular. To begin with, it has encroached upon the freedom of the Member States to choose form and methods to achieve the result prescribed by EC directives, as Article 249 provides for. Secondly, it has contributed to a blurring of the distinction between regulations and directives. Thirdly, it has induced the literal transposition of Community rules into national law, also causing terminological problems and tie-up problems with the national applicable law. Fourthly, some critics point to the problem of enforcing compliance with the mass of detailed Community rules.50 Fifthly, detailed norms are often deemed a threat to innovation, as they complicate the flexible and rapid adjustment to technical progress. Sixthly, they are also considered to entail (higher) costs, and as such to be detrimental to competition. 46 Bronkhorst

(1993), p 31, speaks in this respect of the false compromise and apparent agreement; if no agreement can be reached, vague formulas are adopted that can be interpreted in different ways. 47 Even this term can cause confusion, as it can be used as an umbrella term for all kinds of Community acts but also for designating an (individual) decision in the sense of Article 249 EC. See also Subsection 2.4.2 on this. 48 The preamble of directives and regulations cannot be deemed sufficient in this respect and besides, because of the numerous amendments, such an initial statement may in the end deviate from the actual contents of a certain decision. 49 As quoted by Barents (1994), p 104. Joined cases 292 and 293/81 Loiret and Haentjes [1982] ECR 3887. 50 Cf Hirsch Ballin and de Moor-van Vugt (1996), pp 141–42. This does not alter the fact that sometimes detailed norms are necessary or even inevitable in order to ensure the effectiveness of EC policy, eg in the area of agriculture. This has also been acknowledged in the case law of the ECJ. Cf Barents (1994), pp 106–7 and Bronkhorst (1993), pp 31–34.

Setting the Scene 13 The fragmented, high-compromise and detailed nature of EC legislation is also at the root of the criticism that EC legislation is often internally inconsistent.51 Clearly, this nature increases the risk of defective, in particular inconsistent and incoherent, legislation. Not only conflicts between legislative and implementing acts may occur, but, more importantly, also conflicts between acts of the same hierarchy. Jans has mentioned in this respect the consultation obligation which is contained in four environmental directives concerning cross-border pollution, but which has been formulated differently in all of them. The question is then whether this has been done deliberately, implying consequently different legal obligations, or whether it is just a matter of different or wrong translation.52 The internal consistency of whole areas of law can also be considered to leave much to be desired. To stay with the example of Community environmental law: this has been considered weak because of the use of different terms and concepts to denote the same phenomenon, the different ways of setting rules and the lack of clarity concerning the relation and hierarchy between the different directives.53

1.5 THE CHALLENGE: ENHANCING THE EFFECTIVENESS, LEGITIMACY AND TRANSPARENCY OF COMMUNITY ACTION

It goes without saying that EC legislation as described above has had an impact, in terms of both process and output, on the effectiveness of Community legislation and as such has had detrimental effects on the achievement of the aims of European integration. At the same time, it is also clear that this legislation has affected the already weak (democratic) legitimacy and transparency of the EC. Unlike national governments and industry, which for a long time urged the EC to adopt the secondary legislation prescribed by the EC Treaty with a view to achieving the internal market,54 European citizens appear not to have been easily convinced of the necessity and advantages of the European common market. The perceived ‘over-regulation’ contributed to the Euro-scepticism emerging towards the end of the nineteen eighties. The fact that the EC concerns itself with detailed and (at least apparently) trivial legislation, relating for instance to the maximum size and curvature of bananas,55 has equally not helped to create a favourable view of the EC. 51 Cf Barents (1994), p 105. 52 See Jans (1990), p 510. 53 Jans (1990), p 508. 54 Cf Rabe (1993), pp 1–5 and Bruha and Kindermann (1986), pp 303–4. 55 Commission Regulation (EC) 2257/94 of 16 September 1994 laying down quality standards

for bananas, OJ 1994, L 245/6.

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The citizens’ doubts about a united Europe have been painfully evident in the negative outcomes of the referenda held in Denmark and France with a view to the ratification of the Treaty on European Union (hereafter: TEU), of the Danish referendum on participation in the EMU and of the Irish referendum on the Nice Treaty. The citizens’ limited concern with Europe is also expressed in the low turnouts at the elections for the European Parliament. As a result, the EU has also been confronted with the difficult task of making the EU more acceptable to its citizens. In this respect the EU is often said to be facing a crisis of legitimacy. At stake, then, are more fundamental challenges that need to be met in order to deal successfully in the long run with the challenges posed by ongoing developments such as enlargement. That is to say, the Community has to find ways to enhance its effectiveness, legitimacy and transparency. This need, which had already become apparent in the mid-eighties, was recognised more or less implicitly by the EC itself in documents such as the White Paper on the Internal Market and in the discussions concerning the introduction of the subsidiarity principle.56 With the adoption of the TEU, this recognition became highly visible. Thus, the preamble of the TEU expressed the desire to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out within a single institutional framework, the tasks entrusted to them.

Subsequently, this was expressed in the Conclusions of the European Council of Edinburgh57 and later in the reports of the Community institutions on the functioning of the TEU and on the proposed review of the EC Treaty, formulated in the run-up to the Intergovernmental Conference of 1996.58 Particularly illustrative in this respect is the Commission Report for the Reflection Group, drawn up in 1995, in which the Commission explicitly

56 Cf

also the Resolution of the EP on the constitutional basis of European Union, point I, OJ 1991, C 19/65. 57 Bull. EC 12–1992, p 15. 58 Cf the Communication of the Commission ‘Follow-up to the Sutherland Report: legislative consolidation to enhance the transparency of Community law in the area of the internal market’, COM(93)361 final; the Bourlanges Report of the EP on the functioning of the TEU with a view to the Intergovernmental Conference of 1996, 12 May 1995, notably its pp 2–6, and the subsequent Resolution of the EP, A4–0102/95/Part I.A. Communication on Subsidiarity, p127; the Commission Report to the European Council on Better law-making — Report on the application of subsidiarity and proportionality principles, on simplification and codification (CSE(96)7); the Resolution of the Council of 8 July 1996 on legislative and administrative simplification in the field of the internal market, OJ 1996, C 224/5. Cf also the aforementioned Molitor Report and the UNICE Regulatory Report 1995, ibid note 36. As regards legal writing, see Snyder (1993), pp 19–54 and Piris (1994), pp 449–87.

Setting the Scene 15 formulated ‘A twofold objective: democracy and effectiveness’ with a view to preparing Europe for the 21st century. In this Report, the Commission identified as guiding principles for the work of the then forthcoming IGC that ‘the Union must act democratically, transparently and in a way people can understand’ and that ‘the Union must act effectively, consistently and in solidarity’ not only in its internal workings but also in its external dealings. According to the Commission, ‘Democracy comprises the very essence of the Union, while effectiveness is the precondition for its future’.59 Since then, these aims have also been expressed in the Commission’s annual work programmes and, more recently, in its Communication to the EP, Council, ESC and COR ‘Strategic Objectives 2000–2005 “Shaping the New Europe” ’,60 in its Work Programme ‘Enhancing democracy in the European Union’ for the establishment of the White Paper on European Governance61 and in the White Paper on European Governance itself.62 In this White Paper, the Commission identified five principles with a view to ensuring good governance: effectiveness, participation, coherence, openness and accountability. In the same spirit, the governments of Belgium, the Netherlands and Luxembourg expressed, in the Benelux Memorandum on the Future of Europe, the need for citizens to identify more closely with the Union, the need to ensure greater transparency with a view to this, to build the Union on shared values such as the rule of law and democracy and to develop a more balanced, more democratic and more efficient and transparent institutional system.63 So, the challenge is clearly to ensure good governance, by enhancing the effectiveness, legitimacy and transparency of Community action. The question then is how the EC has taken up this challenge. It would be rather pointless to review here the whole range of ideas, proposals and initiatives that have been put forward, also by (national) governmental and non-governmental bodies, to meet this challenge. Suffice it here to observe that many of them have related to the institutional structure and the simplification of the decision-making procedures. More important with respect to the central question of this book is that part of the response has been the development of a new Community legislative policy, in the framework of which the legal instruments and means to achieve European integration have also attracted attention.

59 Intergovernmental

Conference 1996, Commission Report for the Reflection Group, Office for the Official Publications of the European Communities, Luxembourg, 1995, at pp 5–6. 60 COM(2000)154 final, pp 3–4. 61 Commission staff working document, SEC(2000)1547/7 final. 62 COM(2001)428. See also Subsection 1.6.3 below. 63 http://www.euobserver.com, 27 June 2001; http://www.eu2001.be.

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1.6.1

MEETING THE CHALLENGE: A NEW LEGISLATIVE POLICY

EC Legislation: No Longer ‘Terra Incognita’

In an article published in 1986, Bruha and Kindermann concluded that EC legislation was still Terra incognita der Gesetzgebungslehre. According to them, a specific Community theory of legislation or legislative policy had not even started to develop.64 However, the mid-80s can be seen as a turning point with regard to the way of thinking on EC legislation. That is to say, the stagnation of the internal market, the national deregulatory tendencies and the criticism of the body of EC legislation formed a catalyst for the EC to reconsider its legislative task, taking as its starting point the aforementioned White Paper on the Internal Market of 1985 and the Single European Act of 1986. Further reflections on the existing body of EC legislation and new legislation to be adopted have led to deregulatory and self-regulatory tendencies also at the EC level. The European Commission speaks in this respect of a ‘new legislative culture’.65 This culture is very much inspired by the notions of flexibility and differentiation. The concept of flexibility has been introduced into the EC Treaty and the TEU in the form of provisions enabling closer cooperation between only a number of Member States. This entails that not all the Member States have to agree in order to move forward in respect of a certain matter.66 More interesting for our purposes, however, is that there is a striving for flexibility and differentiation not only from a substantive but also from an institutional or instrumental point of view. That is, when it comes to the modes or instruments by which European integration is to be given shape. Particularly since the early 1990s, it is clear that the new legislative policy rests on two main foundations. The first aims at less recourse to the instrument of legislation, and reduction and simplification of the existing body of Community legislation. Improvement of the quality of Community legislation is also a point of concern here. The second aims at more recourse to other modes of governance or regulation, of a less compelling or non-governmental nature. In a sense, these foundations can be seen as each other’s logical counterparts. In short, the new legislative policy thus aims, on the one hand, at less and better legislation and, on the other, at increased use of other types of regulation or, in other words, at more diversified modes of European governance. 64 Bruha and Kindermann 1986, p 293. 65 See the Report on Implementation

of the Commission’s Work Programme for 1996, European Commission, Brussels, 16 October 1996, p 10. 66 See Article 11 EC and Title VII of the TEU. The EC Treaty also contains direct applications of this concept, in particular concerning the new visa and asylum policy and the EMU provisions, which allow for non- or later participation of some Member States.

Setting the Scene 17 1.6.2

Less and Better Legislation

‘Do less in order to do better’ has become the device, and simplification and deregulation are the key words in this respect.67 This was underlined in the Molitor Report,68 according to which simplification must be taken to mean: that it is essential to ensure that regulation imposes the least constraint on competitiveness and employment whilst maximizing the benefits of direct government intervention.

Deregulation is taken to mean: in some instances, an unavoidable extension of simplification will be the reduction or removal of government regulations, where such regulations are no longer necessary, or where their objectives can be achieved more effectively through alternative mechanisms.

As set out in the Edinburgh Conclusions and the Declaration on subsidiarity attached thereto, in respect of new legislation the aims of simplification and deregulation bring with them the objectives of improving the quality of legislation and of limiting EC legislation to the required minimum (whatever that might be).69 So, there are in fact two sides to this issue: a drafting aspect and a policy aspect. As regards the first — drafting — aspect, numerous proposals have indeed been made70 and initiatives taken by the Community institutions in order to improve the quality of EC legislation. It is impossible (and unnecessary) to discuss all these in detail here.71 Suffice it to mention that various rules and guidelines have been adopted for the drafting of legislation, such as the Council Resolution of 8 June 1993, which contains 10 guidelines against which new EC legislation has to be tested.72 Furthermore, the

67 See Commission Opinion ‘Reinforcing political union and preparing for enlargement’, Office for Official Publications of the European Communities, 1996, p 13. See also the Council Resolution of 8 July 1996 on legislative and administrative simplification in the field of the internal market, OJ 1996, C 224/5. 68 COM(95)288. 69 Bull. EC 12–1992, p 15. 70 Apart from in the aforementioned Molitor Report, the UNICE Regulatory Report 1995 and the Deregulation Now Report, these proposals can be found in the Report of the Werkgroep kwaliteit van EG-regelgeving. Aandachtspunten en voorstellen (Koopmans Report) and the Rapport Public of the French Conseil d’Etat, Etudes et Documents, 44, 1993. See van Marissing (1996) for a summary of the proposals contained in these reports. 71 For a fairly recent and complete overview of the initiatives taken by the Community institutions to improve the quality of legislation, see Xanthaki (2001). 72 OJ 1993, C 166/1.

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Commission has adopted various reports and communications.73 In 1997 a Declaration (No 39) was attached to the Treaty of Amsterdam concerning the quality of the drafting of Community legislation. In view of this, an Inter-institutional Agreement on common guidelines for the quality of drafting of Community legislation was adopted on 22 December 1998.74 In legal writing, it has been considered that these guidelines are still rather limited, compared in particular with national guidelines.75 More recently, however, it has also been concluded that the existing EC guidelines are essentially the same as the national ones and that the EU shares more or less the drafting philosophy of the Member States.76 The question is no longer considered to be whether the EC drafting rules as such are sufficient, but rather whether these are sufficiently applied.77 In order to enhance the accessibility and transparency of EC legislation, a plea has also been made for the consolidation and codification of legislation, less decision-making behind closed doors, explanatory statements accompanying legislation, more and better access to information and a better and earlier view of the proposals for legislation which are in the pipeline.78 Some of these propositions have materialised, as the following shows. With respect to the second — policy — aspect, the striving for deregulation can be said to have definitively acquired its place at the EC level,79 for it is explicitly aimed at limiting legislative activity to what is necessary. This striving is given shape in various ways, as regards both existing legislation and new legislation. 73 Eg Better Lawmaking 1995: Report of the Commission to the European Council on the application of the principles of subsidiarity and proportionality, on simplification and codification, CSE(95)580, Bull EC 11–1995, point 1.9.2 and the subsequent Better Lawmaking Reports: COM(1997)626; COM(1998)715; COM(1999)562; COM(2000)772; COM(2001)728; COM(2002)275. See also General Guidelines for legislative policy: Communication of 9 January 1996 by the President of the Commission, SEC(95)2255/5; ‘Legislate Less to Act Better: The Facts’, Bull EU 5–1998, point Institutional Affairs, 1.8.3; Communication from the Commission to the EP and the Council ‘Making Single Market Rules More Effective’, COM(1998)296 final. More recently, Communication of the Commission, Action Plan ‘“Simplification and improvement of legislation’”, COM(2002)278 final; and Communication from the Commission ‘“Updating and simplifying the acquis’”, COM(2003)71 final. 74 OJ 1999, C 73/1. 75 Kellermann (1998), Bracke (1996). 76 Xanthaki (2001), p 666. 77 Xanthaki (2001), pp 667 and 674 in particular. The reports mentioned in note 70 above all contained proposals for monitoring the application of these guidelines, varying from the appointment of a special European commissioner or testing body, to a legislation coordination unit at the Commission or the creation of an advisory body on legislation, ie a kind of European Council of State. 78 See also the Declaration attached to the Maastricht Treaty on access to information and Curtin (1996). 79 Although steps in that direction had already been made earlier, as for instance the Council Resolution of 3 November 1986 concerning the action programme for small and mediumsized enterprises (SMEs) makes clear, OJ 1986, C 287/1. Cf Mortelmans and van Rijn (1991), p 284, and van den Oosterkamp (1988).

Setting the Scene 19 As regards the existing body of EC legislation, the aims of simplification and deregulation have set in motion a re-regulation and rationalisation operation.80 Re-regulation can be said to concern in particular the consolidation and codification of EC legislation, by which the complexity of the EC body of legislation can be reduced and its accessibility enhanced. Consolidation is a semi-official editorial compilation of the different legal texts concerning a particular issue, which takes place outside the formal decision-making procedures. It has no legal consequences and leaves the legal force of the different texts unimpeded.81 It is in fact a way of counteracting the defects of the step-by-step approach. Consolidated versions of legislation are now regularly published in the Official Journal. Codification occurs when a formal legal act is adopted, on the basis of the prescribed procedures, by which all earlier texts are repealed and replaced by one new text that does not alter the original contents.82 This codification enhances legal certainty. A major achievement in this respect is the realisation of the Customs Code. Since, in principle at least, codification should not affect the acquis communautaire, an Inter-institutional Agreement was adopted in December 1994 to speed up the process of codification.83 This does not alter the fact that this process will involve repealing those parts of the legislation that have become superfluous or invalid. Rationalisation of EC legislation actually goes a step further than consolidation and codification, as it aims in fact not only at the elimination of legislation that has become superfluous or invalid, but also at the improvement and adaptation of existing legislation. In view of this, a pilot project was conducted, in four specific areas of EC law, in which this legislation was screened with regard to its validity, necessity and appropriateness. This was the SLIM project: Simpler Legislation for the Internal Market.84 The outcome of this pilot project led the Commission to conclude that the project should be extended to other areas of Community law as well, and now EC legislation is screened in a more structural way.85 80 This was already laid down in the Conclusions of the Edinburgh European Council, Bull EC 12–1992, p 15. 81 Ibid. 82 Ibid and the Inter-institutional Agreement of 20 December 1994 ‘Accelerated working method for official codification of legislative texts’, OJ 1996, C 102/2. 83 The annual work programmes of the European Commission and reports on the implementation thereof, published annually since 1993, provide further information as to the state of affairs of the codification and consolidation activities. 84 This rationalisation project can be seen as a follow-up to the Edinburgh Conclusions, in which the Commission made mention of rationalising the foodstuffs legislation; in particular the replacement of a number of detailed directives on foodstuffs by some New Approach directives. See its Annex 2. 85 Cf the Communication from the Commission to the Council and the European Parliament, ‘Review of SLIM: Simpler Legislation for the Internal Market’, COM(96)559 final and COM(2000)104. Yet, its functioning still leaves much to be desired, as expressed by the EP in its resolution on the Commission report of 2000, A5–0351/2000.

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1.6.3

More Modes of European Governance

As regards new legislation, the striving for deregulation entails a search for other possible modes of governance or alternative means of regulation besides legislation: the second foundation of the new legislative policy. As already observed in Section 1.1, the European Council of Edinburgh laid the basis for this policy in December 1992. Its Conclusions make clear that the foundations of the new legislative policy are rooted in the principles of conferred powers, subsidiarity and proportionality, laid down in Article 5 EC. These principles determine not only the competence of the Community to act, but also the intensity of its actions. As such, they are guiding principles for the conduct of its institutions, in particular for their choice of instruments. Every new legislative proposal is thus to be preceded by a review in terms of competence, subsidiarity and proportionality.86 The application of the principles of subsidiarity and proportionality may further require the preference for other ways of regulation over legislation. More particularly, those Conclusions stated that, whenever possible, action has to be taken at the national level, be it by other ways of cooperation between the Member States, the use of voluntary codes or self-regulation. If Community measures are deemed necessary, then non-binding measures such as recommendations should be used, if possible. If legislation is considered necessary, resort should preferably be taken to (framework) directives and not to regulations.87 Since then, this point of view has been confirmed on various occasions, and most importantly in the Protocol on subsidiarity and proportionality attached to the Treaty of Amsterdam.88 This Protocol explicitly confirms the guidelines laid down in the Edinburgh Conclusions, emphasising also that, consistent with the achievement of the objective, ‘the form of Community action shall be as simple as possible’, that ‘the Community shall legislate only to the extent necessary’ and that ‘Community measures should leave as much scope for national decision as possible’. Meanwhile, this policy has manifested itself not only in an increased use of soft law instruments, but also in various other ways. Some of these alternative modes of governance or means of regulation have been given

86 Cf also the Declaration on estimated costs under Commission proposals, attached to the TEU. In particular the impact of direct regulation on competitiveness and employment should be explicitly considered in the design and review of legislation. Cf the Molitor Report and the UNICE Regulatory Report 1995, p 57. 87 Although the issue of the EC legal instruments was on the 1996 IGC agenda, because of the Declaration on the hierarchy of norms attached to the TEU, the IGC and the subsequent Treaty of Amsterdam did not bring about any changes in this respect, nor in respect to the existing instruments. On the contrary, in fact, the position of the directive was reinforced. 88 Such protocols form an integral part of the EC Treaty, as is expressed in Article 311 EC.

Setting the Scene 21 a legal basis in primary or secondary Community law. A first example is the conclusion of European collective agreements by management and labour. This possibility and the applicable procedure are provided for in the EC Treaty in Articles 138–39. Likewise, in the environmental field, the conclusion of Community environmental agreements is being encouraged, and the creation of a legal basis for the use thereof is now envisaged in the form of a Community regulation.89 Self-regulation in the form of internal codes of conduct adopted by companies etc. has been encouraged as well.90 Further, the possibility of regulation by European agencies has been created on the basis of secondary Council legislation and this has now led to the establishment of 12 such agencies.91 As from the mid1990s, but in particular since the European Council of Lisbon in 2000, the use of the open method of coordination (OMC) has also been put forward as a new means of intervention. This method is actually also contained in the EC Treaty, in particular in its Articles 99 and 128 EC, providing for a specific cooperation procedure regarding economic and employment policy, respectively. The policy line begun with the Edinburgh Conclusions gained new impetus, as the Commission started a more fundamental debate on better EU governance.92 In July 2001, the debate culminated in the adoption of a White Paper on European Governance. The way in which the Commission conducts (or rather creates the conditions for) the debate in this White Paper confirms the premise that differentiation of the modes of governance or (legal) instruments is considered to contribute to enhancing the effectiveness, legitimacy and transparency of Community action.93 In essence, this debate centres on the extent to which the traditional — supranational and top-down — Community method94 is still the right way to proceed, and what new forms of European governance — intergovernmental and non-governmental — should be explored and promoted with

89 See the Commission’s work programme 2000, COM(2000)155 final, Annex 1, proposal 084.

Yet, up to now only a communication has been adopted: the Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 17 July 2002 on Environmental Agreements at Community Level within the Framework of the Action Plan on the ‘Simplification and Improvement of the Regulatory Environment’, COM(2002)412 final. See Bailey (1999) for an assessment of their utility as an alternative instrument. 90 An example of this is the code of conduct signed by management and labour in the textile and apparel industry in Brussels on 10 July 1997. Another is the code of conduct agreed upon by the travel agencies (ECTAA) and hotels (HOTREC). As regards the latter, see Agence Europe, 11 January 1996, no. 6642. 91 See Everson et al (1999) and Yataganas (2001). 92 This debate was very much inspired by the institutional crisis witnessed by the European Commission in 1998. 93 See also the Commission’s work programme for the White Paper on European Governance, SEC(2000)1547/7 def, p 4. 94 Whereby the Council and the EP decide upon a proposal of the Commission.

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a view to ensuring good governance. In this respect, the Commission mentions in particular benchmarking, peer pressure, networks, the open method of coordination and the use of soft law instruments.95 The Commission holds explicitly that legislation is often only part of a broader solution combining formal rules with other non-binding tools such as recommendations [and] guidelines.96

With regard to the open method of coordination, it considers that the use of this method may reinforce or complement Community action and that it is a way of ‘encouraging co-operation, the exchange of best practice and agreeing common targets and guidelines for Member States […]’. In the European Convention this method has also attracted attention in the framework of the discussions on simplification of the Community’s legal instruments and on economic governance. In particular, thought has been given as to whether the open method of coordination should be assigned a constitutional status. Yet, the concrete proposals in the draft Constitutional Treaty, entailing a new, hierarchical classification of the Community’s legal instruments — introducing in particular a distinction between legislative and non-legislative acts, delegated and implementing acts97 — do not include any reference to the open method of coordination at all, nor do they entail any changes in the definition of non-binding Community instruments. It is quite surprising that the Commission White Paper, nor the proceedings of the working groups of the European Convention nor the final proposals made in the draft Constitutional Treaty, give proof of a link between the use of the open method of coordination and the use of certain soft law instruments in the Community law context. Such a link can, however, certainly be established. As will be seen in more detail in Sections 5.4 and 5.5, establishing (open) coordination in a legally non-binding way is in certain situations clearly preferred over establishing common policy or harmonisation of national laws through the use of legislation, for being a less intensive or coercive form of Community intervention in the national legal orders. Soft law instruments, in particular certain recommendations and guidelines, are thus used as tools for shaping this coordination and in fact in applying the open method of coordination.98 95Certain

soft law acts can be said to be based eg on the idea of peer pressure; Cf the Conclusions of the ECOFIN Council Meeting on 1 December 1997 concerning taxation policy. Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 1 December 1997 on a code of conduct for business taxation, OJ 1998, C 2/1. 96 White Paper on European Governance, COM(2001)428, pp 4 and 20–22 in particular. See also Subsection 3.6.1. 97 See Articles I–32 to I–36 of the draft Constitutional Treaty, to be found in CONV 850/03. I will consider and evaluate these proposals in Subsection 2.4.1 and Chapter 11. 98 Cf also eg Hodson and Maher (2001) and Régent (2003).

Setting the Scene 23 1.7 COMMUNITY SOFT LAW: AN ALTERNATIVE TO LEGISLATION?

1.7.1

The Use of Soft Law in EC Law

This book focuses on Community soft law as one of these other modes of European governance. Although up to now I have only spoken of ‘soft law’ in a rather general way, it is important to note immediately that it is a far from homogeneous phenomenon. The designation as soft law of instruments such as recommendations, notices, resolutions, conclusions, guidelines, declarations, programmes, codes of practice etc is induced by the fact that they can all be typified as Community legal instruments that have not been attributed legally binding force.99 With regard to recommendations and opinions, Article 249 EC provides this in so many words. As noted, the use of such instruments is not at all new in EC law; however, their proposed use as an alternative to legislation is new. Although in contrast to the Edinburgh Conclusions, the Protocol on subsidiarity and proportionality does not mention explicitly a preference for recommendations and similar instruments over legislation whenever possible, in my view this preference must be considered implied in the quotations from this Protocol given in the foregoing section. The Commission White Paper on European Governance can be seen as support for this reading, or at least as indicating that this preference has not meanwhile been renounced. Everyday Community practice also suggests more a confirmation than a renunciation of this preference for soft law. Firstly, there has been a decrease in the number of legislative acts adopted annually over the last decade,100 although one may consider the number still high.101 At the same time, there has been an increase in the number of soft law acts.102 99 See

chapter 4 for a detailed discussion and definition of the concept of Community soft law and chapter 5 for a classification of soft law instruments. 100 Although, to a certain extent at least, the downward shift can be explained by the completion of the internal market programme, it must at the same time be recalled that as a result of the TEU and the Treaty of Amsterdam the competences of the EC and legal bases for Community legislation have accrued. 101 The Commission Work Programme 2001 contained the proposed adoption of 51 regulations and 51 directives, of which respectively 19 and 16 were amending acts of some kind. This higher number, in particular also when compared with earlier work programmes (cf note 7), clearly has to do with the entry into force of the Treaty of Amsterdam and eg the insertion of the new title on visa, asylum and immigration into the EC Treaty, as 11 directive proposals relate to this title. 102 See note 7 above. Eg in 1997 the Commission adopted about 100 communications and 13 recommendations. Interestingly, the Commission’s annual legislative and work programmes now contain a list of not only legislative proposals but also non-legislative acts. The Commission’s Work Programme 2001 thus contained the proposal of 97 communications, 4 recommendations and 9 Green and White Papers. See also chapter 5 for more figures on adopted soft law acts.

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Secondly, the — proposed — increased use of soft law is also evident from action programmes and like documents, setting out policy aims in various areas of Community law. An illustrative example in this respect is the Communication from the Commission to the Council, the EP and the ESC ‘Tax Policy in the European Union — Priorities for the years ahead’.103 In this communication, the Commission considered that in view of the difficulty of reaching unanimous agreement on legislative proposals in this area, which will only be compounded by enlargement of the EU, the Community has to consider the use of alternative instruments such as soft law as a basis for its initiatives in this area.104 In particular it considered that ‘the use of non-legislative approaches or “soft legislation” may be an additional means of making progress in the tax field’.105 The adoption of instruments such as communications, recommendations, guidelines and interpretative notices is considered to contribute to providing guidance on the application of the Treaty, helping to remove obstacles to the internal market, pointing to potential legal problems and possible solutions so as to avoid legal conflicts or litigation, and to the development of new tax rules.106 The new legislative policy and the consequent increasing use of soft law instruments in everyday practice have not (yet) had the effect of adapting the EC Treaty to this new reality. Apart from the very limited observation in Article 249 EC that recommendations and opinions have no binding force, it is silent on the nature, function and status of other soft law instruments occurring in Community practice.107 Although in the past, and indeed on several occasions, proposals have been made to change Article 249, these have never materialised or covered other soft law instruments than the recommendation and the opinion. Clearly, this lack of regulation of soft law makes it quite obscure how soft law is to be anchored in the Community legal system. At least it complicates the determination of the — legal — nature and function of the various soft law instruments that can be identified.108 Yet, the increasing use of soft 103 COM(2001)260

final. The IGC of Nice failed as regards simplifying the decision-making process in the tax law area, which thus forces the Commission in a sense to have recourse to other tools. Agence Europe, 24 January 2001, no 7887, p 9. 104 Ibid, pp 10 and 23–24. 105 Ibid, pp 22–23. Insufficient political will and the unanimity requirement are considered to be the main obstacles to realising progress by means of legislation in this area. 106 Ibid, p 23. Another example is the Fourth Action Programme on equal opportunities of men and women 1996–2000, laid down in Council Decision 95/593/EC, OJ 1995, L 335/37, which shows a clear decrease in legislative proposals and an increase in proposals for nonbinding acts. Chapter 5 will provide numerous examples of the use of soft law also in other areas, such as consumer law. 107 Although a number of Treaty provisions do provide for the adoption of some, such as guidelines and (action) programmes. See further on this Chapter 5. 108 Cf also the note of the European Convention on ‘The legal instruments: present system’, CONV 162/02, Brussels, 13 June 2002.

Setting the Scene 25 law appears to have already had an effect in terms of more case law of the Court throwing light on the nature and legal status of (certain) soft law instruments in EC law. In particular, it has become clear that ‘no legally binding force’ is not to be equated to ‘no legal effect at all’. This determination is further complicated by the fact that, despite their long-standing tradition in Community law, Community soft law instruments have attracted only scant and rather scattered attention in legal writing,109 and this has certainly not kept pace with the increasing importance of soft law in (legal) practice as a result of the new legislative policy and the ensuing case law. Only too often, the focus is merely on the contents of a soft law act, and for the rest, there is no more than the observation that it lacks legally binding force. As a result, the body of knowledge on the phenomenon of Community soft law as such is still rather poor. It is this state of affairs that has motivated the present study.

1.7.2.

The Central Question and its Dual Purpose

Against the background of the preceding sections, I have come to the following overall central question of this study: How do Community soft law instruments and their use fit into the Community legal system and, in particular, relate to Community legislation?

This central question is inspired by the premise identified above, that differentiation of the Community instruments — and hence also the use of soft law — contributes to enhancing the effectiveness, legitimacy and transparency of the Community. This immediately raises the question as to how far this premise holds true; can the use of soft law indeed provide a satisfactory alternative to legislation and as such be a panacea for the effectiveness and legitimacy crisis of the EC and, if so, in what cases and under what conditions? Or, in other words, to what extent does this differentiation of the Community instruments indeed imply good governance?110 The main purpose of this study is to formulate an answer to this. Why put the premise to the test? The reason is that one can put forward several arguments that raise questions as to the validity of the premise, cast doubt on it, or even point in the direction that the use of soft law actually

109 See Chapter 4 for references to the most important literature. 110 Commission work programme White Paper on European

Governance ‘Enhancing democracy in the European Union’, SEC(2000)1547/7 fin, p 3; the Commission here clearly links transparency, accountability and effectiveness to the notion of good governance as preconditions.

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endangers the effectiveness, legitimacy and transparency of Community action. Naturally, the proper assessment of these arguments requires a further definition and interpretation of the notions of effectiveness, legitimacy and transparency, which will be provided in Chapter 3. In advance of this discussion, one can take as a starting point here that the Community legal system constitutes a legal order in its own right, yet is based on the principle of democracy and the rule of law, just as the national legal systems represented in it.111 This entails, on the one hand, democratic legitimacy in the sense of parliamentary influence on and control of the legislative process and, on the other, compliance with the principles of legality, division of powers and good governance, such as legal certainty, equality and legitimate expectations. In several respects, the notions of effectiveness and transparency are related to democracy and the rule of law; ineffective and non-transparent Community action cannot be considered to enhance these. Effectiveness can be taken to refer to the capability of Community rules at least to realise their goals at all levels; that is to say in their adoption, implementation, application and enforcement. Transparency is often equated to (formal) access to information, but it can also be taken to refer to transparency of Community rules from a substantive point of view and to legal certainty. In short, one can say that not only the existence and division of Community power must be acceptable to the citizen but also the exercise thereof. Legislation too clearly satisfies a guarantee function, in the sense that it has to fulfil democratic and rule of law requirements. Consideration has not yet been given to how far this also applies for soft law. From the point of view of effectiveness, it can further be argued that on the one hand soft law allows for more rapid adoption and adaptation of rules or measures and hence also for more flexibility. As such, this indeed helps in overcoming some of the drawbacks of the Community legislative process described earlier. On the other hand, however, one might wonder how far soft law instruments are an adequate and sufficient means to realise the sometimes ambitious and far-reaching goals laid down in them, or European integration as such. Given their lack of (inherent) legally binding force,112 do soft law instruments put enough pressure on the Member States and other possible addressees to implement and enforce them?113 Admittedly, this effectiveness does not depend only on

111 Cf Case 26/62 Van Gend en Loos [1963] ECR 3 and Article 6 TEU. 112 See Subsection 6.2.1 and Section 6.4 on this term. 113 Some are very optimistic in this respect. Cf Benschop (2000), p

188 who has taken the view that the new methods or means are soft only in the formal sense, and not in the substantive sense.

Setting the Scene 27 the existence of legally binding force, but those concerned must also be at least willing to give effect to them. In particular in those cases where recourse is had to a soft law instrument for the reason of lack of political will to adopt legally binding rules, as is clearly the case for instance in the tax policy area, how can the rules laid down in such an instrument be effective? This also raises the question of the implications of the use of soft law for the uniform application of Community law; are we not confronted here with a pick-and-choose policy of the Member States, a policy moreover that is to be changed whenever one sees fit? In other words, does the increased differentiation of the legal instruments, also manifested in the use of soft law, not presuppose to a certain extent an increased differentiation in the application of Community law and in fact the acceptance thereof? Again, where there is recourse to soft law due to lack of political will and as a way of circumventing the unanimity requirement, it is hard to imagine that this use will have a uniform effect in the Member States. The fact that soft law instruments lack ‘inherent’ legally binding force does not mean that they can never have legal effect.114 As such, this legal effect could be considered to contribute to the possible effectiveness of soft law, in terms of its enforceability. At the same time, however, it also makes clear that the aims of effectiveness and legitimacy may be at odds with each other; for instance, gains in terms of effectiveness may have a price in terms of democratic legitimacy or vice versa.115 The democratic legitimacy of soft law does not appear to be very strong, at least as regards parliamentary influence or control over its adoption.116 Recognising that soft law has (indirect) legal effects — and hence the possibility that it contributes to imposing certain obligations — may add to its effectiveness, but seems to worsen its already weak democratic legitimacy in terms of acceptability. The (democratic) legitimacy of Community action can obviously also be endangered by the abuse or at least suspicious use of soft law. Whether or not under the flag of subsidiarity and proportionality, it may thus be argued that there is no need for legislation and that the adoption of soft law suffices, whereas in reality it represents an attempt to impose obligations by the backdoor. Sometimes this occurs when the Council (and possibly the EP) cannot reach agreement on the Commission’s proposal. An interesting illustration is provided by the adoption of the Commission Recommendation of 17 January 2001 on the maximum permitted blood

114 See Part III on this. 115 This tension is rather

generally acknowledged. See eg Kapteyn (1993), p 48, van Gerven (1992), pp 1242–43. See also Subsection 3.5.2.3. 116 As will be seen in Chapter 5. An exception will turn out to be Council recommendations, discussed in Subsection 5.4.4.

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alcohol content (BAC) for drivers of motorised vehicles.117 The Council failed to adopt the Commission’s proposal on this, which had been in the pipeline since 1988, and in 2001 the Commission decided to adopt it as a recommendation in a virtually unmodified form. Sometimes it also occurs that the Commission does not put forward a proposal at all. The area of free movement of capital provides a good example of this. In a recent resolution, the EP asked the Commission to replace its 1997 Communication on Golden Share with a directive proposal, but the Commission does not deem this to be necessary. The EP considers that the matter at issue (internal EU investments) is too important to be unilaterally decided by the Commission.118 These examples show that it is not fanciful to suggest that questionable motives might actually underlie the choice of soft law, and we will see that the ECJ punishes such use.119 Logically, using soft law in such a way as to circumvent the influence of the other institutions in the decision-making process also affects or even upsets the rule of law requirement of institutional balance, that is the internal division of powers between the institutions. Another issue that is raised in relation to the rule of law concerns the applicability of the principle of legality to the adoption of soft law instruments. In particular in view of the fact that soft law can have ‘incidental’ legally binding force and indirect legal effects,120 one might wonder whether or to what extent it is necessary to establish a competence for the adoption of soft law instruments, and indeed where such a competence is to be found. Following on from this, the question also arises as to the requirements that the principles of good governance impose in this respect. On the one hand, it seems that for instance the principle of legal certainty pulls in the direction of denying all legal effect of soft law, since legal obligations should be clear and foreseeable; establishing the existence of a legal obligation on the basis of a soft law act seems difficult to reconcile with this. On the other hand, this principle in conjunction with the principle of legitimate expectations seems to pull in the direction of a self-binding effect on the part of the institution that has adopted a soft law act and committed itself to a certain behaviour, in cases where one could derive certain rights from this. Furthermore, depending on the national follow-up given to soft law acts, rights and obligations ensuing therefrom may vary from one Member State to another. This is problematic from the viewpoint not only of effectiveness, in particular uniform application, but also of equality. 117 OJ 2001, L 43/31. Cf Sevinga (2001), pp 155–58. 118 Agence Europe, 6 April 2001, no 7940, p 10. 119 See eg Case C–57/95 France v Commission [1997]

Section 6.5. Section 6.2 on this terminology.

120 See

ECR I–1627, discussed in extenso in

Setting the Scene 29 Closely connected with the rule of law requirements and with effectiveness is the question of transparency. In this respect, one might wonder in particular whether the increasing differentiation of Community legal instruments, and of soft law instruments as such, does not in fact obscure matters. Enhancing the effectiveness, legitimacy and transparency of Community action by having recourse to soft law instruments seems difficult to realise if the nature, function and legal status of these instruments — in particular the rights and obligations they may actually entail — are far from clear. The foregoing is not to say in advance that the use of soft law cannot contribute to enhancing the effectiveness, legitimacy and/or transparency of Community action. It is only to make clear that there are plenty of arguments that raise questions concerning the validity of the premise, and that it therefore needs further investigation. In particular, it is necessary to establish the circumstances and the conditions under which the premise can indeed be upheld. A second purpose of the study is to create a better understanding of the many different manifestations of the phenomenon of soft law in the context of EC law. That is also the reason this study is not limited to the use of soft law instruments in a particular area of Community law, say competition law, but takes a cross-section of their use in many different areas of Community law, with a view to establishing in general their different characteristics, functions and legal effect under Community law.

1.7.3

Definition and Framework of the Analysis

The establishment of the relation between Community soft law and Community legislation or ‘hard’ law, in the light of the main purpose identified above, presupposes an examination of the following two subquestions. Firstly, which soft law instruments are actually capable of being used as an alternative to legislation? Secondly, to what extent and under what conditions can the instruments thus identified be said to function as a satisfactory alternative to legislation, from the point of view of effectiveness, legitimacy and transparency? Undoubtedly, this examination could be approached from a more (legal) philosophical or theoretical perspective. My approach will, however, be a rather straightforward, positivist one, focusing on how the phenomenon of Community soft law manifests itself in the context and everyday practice of the Community. I think this approach is justified by the fact that still very little systematic research on Community soft law has been done up to now. Without denying the need for a more philosophical or theoretical approach, I am of the opinion that this is only useful if one first knows more about the phenomenon itself. That is, about its

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nature, functions and other characteristics, as well as about the legal effect or scope that has been given to it. Only on the basis of that discussion do I consider it possible to draw conclusions as to the possible benefits and shortcomings of the present use of Community soft law and to identify conditions for its proper use. This approach is very much reflected in the structure of the book and in the materials used for this study. These comprise in particular a wide variety of Community soft law acts and other (Community) documents, judgments of the ECJ and the CFI, opinions of Advocates-General and legal literature. At this point, it is also important to explain what I understand for the purposes of this study by the term ‘Community’. This term implies two fundamental restrictions in the sense that it refers principally to the instruments used by the European Commission and the Council of Ministers (hereafter: the Council), and this only within the scope of the first pillar of the EU, in particular the EC Treaty. These restrictions are induced not only by the practical concern that the study have an acceptable scope, but also by considerations as regards content. Consequently, even though the use of certain instruments within the framework of the second and third pillars of the EU poses intriguing questions as well, I deem that the — intergovernmental — framework within which these arise is fundamentally different. Further, Commission and Council soft law instruments can be considered to be of more practical and legal relevance than the instruments adopted by the other Community institutions.121 The term ‘Community’ also alludes to the fact that I have focused on the Community law dimension of soft law as such, and that I have not taken a national or international comparative law perspective. Undoubtedly, interesting parallels could be drawn between the use of Community soft law instruments and the use of soft law at the national and international law level,122 but comparison is difficult if many aspects of Community soft law remain as yet unexplored. Moreover, although national and international law insights on this matter can be inspiring and may have some spill-over effects, one should beware of abruptly extrapolating these to the Community level, given that the Community legal order constitutes a legal order in its own right and also given its particular lawmaking context. Against this background, the framework of the analysis will be as follows. To map out the use of soft law in relation to that of legislation, the

121 As

such, soft law acts adopted by the European Council also fall outside the scope of this study, although I do not deny their possible importance. See further Section 4.7 on this delimitation and Subsection 5.5.1. 122 See Borchardt and Wellens (1987) and (1989) for an (international) comparative law approach in this respect.

Setting the Scene 31 remainder of Part I will concentrate first on the main characteristics and functions of Community legislation and legislative instruments as such. It is important to note here that this concerns the establishment of government rules of conduct that have external, general effect and legally binding force. The Community legislative instruments will be considered in the broader framework of Community law sources and instruments (Chapter 2). Next, I will discuss the main principles that play a role in the choice and adoption of legislative instruments. These guiding principles for legislation comprise the principles of democratic legitimacy, effectiveness, transparency and the rule of law, and the various requirements they impose (Chapter 3). These guiding principles will serve as touchstones for the subsequent study. On that basis, it will then be possible to establish in Part II how soft law instruments relate to Community legislation in terms of the nature of the rules laid down in them and the functions they fulfil in the Community legal system. This establishment requires an examination of the kind of rules that are being laid down in Commission and Council soft law instruments, and in particular of whether they aim at laying down external and general rules of conduct. Only in the latter case can Community soft law function as an alternative to legislation. This examination will thus enable a classification of soft law instruments and also an assessment of whether they intend to prepare, complement or indeed take the place of legislation, ie fulfil respectively a pre-law, post-law or para-law function. This classification will permit a first conclusion as to which soft law instruments are actually capable of functioning as an alternative to legislation. Within the framework of that discussion, further insight will also be gained into the reasons that may underlie the choice of instrument for shaping EC law and policy; in particular, as to whether or not these reasons relate to the guiding principles. In this respect, the question draws attention to whether soft law instruments do not in fact aim at the same results as legislation, without being subjected to the same conditions in terms of democratic control and legal protection of those concerned. In view of this, it is necessary also to examine how soft law instruments are being adopted; what is for instance the involvement of the European Parliament or other concerned parties in the adoption process, is a legal basis identified and is the act published or notified? This examination in itself will allow for an evaluation as to the contribution that soft law instruments can make to the aims of effectiveness, legitimacy and transparency. Exploring the relationship between soft law and hard law also entails an examination of the extent to which legal effect is indeed a distinguishing feature. To what extent can soft law be considered to ‘interfere’ less than hard law? Or, in other words, what legal rights and obligations can or do soft law instruments entail for those concerned — in particular at

32

Lawmaking in EC Law

the legislative, judicial and implementation levels — and what are the implications thereof for the aims of effectiveness, legitimacy and transparency? For instance, the ‘bigger’ this legal effect, the ‘bigger’ the effectiveness is in terms of enforceability. Yet, what would this imply in terms of legitimacy and transparency, for instance the legal certainty of those concerned? Further, as already observed above, the aspect of legal effect also draws particular attention to the question of what the rule of law requires in terms of competence; does it require a legal foundation for the adoption of soft law, by means of identification of a legal basis in the Treaty or in secondary legislation? Furthermore, from the viewpoint of enhancing democracy in Europe and bringing Europe closer to its citizens, does it not entail that the use of soft law must be democratically legitimised in some way?123 In this respect, attention will also be given to other possible ways to ensure or establish this democratic legitimation, for instance by means of the participation of those concerned in the adoption process.124 The issues of legal effect and competence will be the focus of Part III. In Part IV, consideration will be given to how the use of soft law should be evaluated. Conclusions will be drawn as to the extent to which soft law instruments may constitute a — satisfactory — alternative to Community legislation and under what conditions. Furthermore, an evaluation will be made of how these instruments but also other soft law instruments, not functioning as an alternative to legislation, affect the effectiveness, legitimacy and transparency of Community action. On the basis of the outcome thereof, a number of recommendations will be made, relating inter alia to the changes in the EC Treaty that are required in this respect, such as amendment of Article 249 EC.

123 The

contention of eg Benschop (2000), p 188, that deepening of integration is now taking place without the conferral of competences, that discussions on competence are avoiding the issue, and that state structures and issues are no longer central therefore seems to me somewhat premature. 124 That the questions of effectiveness and legitimacy are also linked to each other in this respect is made clear by the observation in the aforementioned Commission Communication on Tax Policy in the EU, that the use of non-legislative or soft law approaches could be particularly effective in cases where they have a firm legal foundation, based on the Treaty and the case law of the Court of Justice. See COM(2001)260 final, p 22.

2 Sources of EC Law and EC Legislation 2.1

INTRODUCTION

A

S EARLY AS the landmark Van Gend and Loos Case, the Court established that the E(E)C constitutes a legal system in its own right.1 That is not to say, however, that the Community legal order is not governed by the rule of law, upon which the national legal systems are themselves based. As Mackenzie Stuart has put it, the European Communities do rest upon a system which has its own characteristic — a system which is founded on the principles that those who administer the Communities are themselves subject to limitations imposed by law and that those who are administered have rights in law which must be protected.2

In short, securing the rule of law in the Community context means that the EC institutions are bound by the law. The commitment to the rule of law is in fact expressed in Article 220 of the EC Treaty itself, which provides that the Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed (emphasis added).

Furthermore, this commitment is also contained in Article 230 EC, providing for the possibility of the Court of Justice to review the legality of certain Community acts. If the institutions adopt acts that do not comply with the requirements the law imposes, these acts are, subject to certain conditions, liable to annulment. In the Les Verts Case, concerning in particular the question whether an act of the EP could be challenged in Article 230 proceedings, the Court made the commitment to the rule of law very explicit, by holding that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures 1 Case 26/62 Van Gend en Loos [1963] 2 Mackenzie Stuart (1977), p 3.

ECR 1.

34

Lawmaking in EC Law adopted by them are in conformity with the basic constitutional charter, the [EEC] Treaty.3

This was later expressly confirmed in the TEU, in particular in its Article 6, which reads: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.4

In the framework of this study, the fact that the EC is subject to the rule of law entails two principal questions. One question concerns the substance of the rule of law: what requirements does it actually impose as regards EC lawmaking and what are the contents and scope of these requirements? This question will be examined more closely in Chapter 3. The other question is of a formal nature, and will be considered in this chapter: what actually constitute ‘sources of (the rule of) law’ in EC law? In Chapter 1, I discussed many problems concerning Community legislation, without addressing as such the key elements of the notion of EC legislation and the place occupied by legislative instruments in the Community system of sources of law. These issues will now be addressed in this chapter. A general picture of the main sources of EC law will be sketched, with a view to assessing in particular the features and functions of legislation in the Community legal system and to providing a first orientation on soft law sources vis-a-vis the other sources of EC law, and in particular legislation. Undoubtedly, the notion of ‘source of law’ in EC law could give rise to many legal philosophical or theoretical reflections. Without taking such an approach, it will be seen that this notion can be understood in a rather broad sense and that a classification into primary, secondary and tertiary sources can be made in terms of their legally binding force and hierarchical relation vis-a-vis one another. Some sources appear difficult to locate within this classification and are consequently somewhere ‘in-between’ (Section 2.2). In separate sections, the primary, secondary, tertiary and ‘inbetween’ sources of EC law will be reviewed (Sections 2.3 to 2.6). In view of the above aim, the emphasis will lie on the secondary EC sources, in particular on the characteristics, legal effects and functions

3 Case 294/83 Les Verts [1986] ECR 1339, para 23. Cf Crosby (1991), p 451 and Piris (1998), p 25. That the Community constitutes a Communauté de droit has been repeatedly confirmed by the ECJ; cf Case C–2/88 Zwartveld [1990] ECR I–3365 and Opinion 1/91 First EEA Case [1991] ECR I–6079. 4 A similar commitment is contained in the third paragraph of the preamble of the TEU.

Sources of EC Law and EC Legislation

35

of the EC legislative instruments within the Community legal system. In Section 2.7 some conclusions will be drawn.

2.2

CLASSIFICATION INTO PRIMARY, SECONDARY AND TERTIARY SOURCES OF LAW

The notion of source of law is here understood in the sense of ‘where the law can be found’, and not in terms of what its foundation is and from where it derives its validity.5 Some authors have clearly linked the question of what constitutes a source of law in this former sense to the question of legally binding force; when an instrument lacks (inherent) legally binding force, it has been denied the nature of legal instrument and thereby in fact of being a source of law.6 Others have adopted a broader view. Thus, according to Ossenbühl, one should consider as sources of law all instructions and standards that prescribe how to act or behave, that establish goals and means of administrative action and that determine the judicial outcome of conflicts, regardless of their outward appearance. 7 Lasok and Bridge consider that sources of law are the authorities which may be cited in court and which are thus judicially cognisable;8 or, sources of law can be understood as those rules, norms or principles that can be invoked in court as standards for review. The latter can also be interpreted widely, in the sense that it is immaterial whether they are independent standards or standards for interpretation.9 Neither Article 220 EC nor Article 230 EC gives any indication as to what are the sources of ‘the law’ that the Court of Justice should respect. These provisions merely make clear that the Treaty itself forms part of this law. Article 249 EC is often said to constitute a source catalogue, as it provides in its first paragraph that: In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions (emphasis added).

Reading this rather clear-cut provision, one might be tempted to think that this is an exhaustive catalogue; that all Community lawmaking has 5 Cf Monjal (2000), pp 10–11, for different conceptions of this notion. 6 Here I will simply refer the reader to the views of Pescatore and

Houben expressed in Subsection 6.2.3. For the meaning of ‘inherent’ legally binding force, see Section 6.4. 7 Ossenbühl (1998), p 130. Cf also Hartley (1998), pp 87–89. 8 Lasok and Bridge (1991), at p 112. 9 Cf in the latter sense as regards general principles of law, de Witte (2000)(a), p 143.

36

Lawmaking in EC Law

to take one of these forms. However, things are somewhat more complex than Article 249 suggests. Or, as Koopmans has observed, the simplicity of this provision is slightly misleading.10 Only to a limited extent, then, does the system of sources of EC law consist of sources that the EC Treaty has consciously brought into being. This is the case because firstly the EC Treaty itself establishes more covertly the existence of other lawmaking instruments and recognises the existence of (unwritten) sources of law. In various Treaty provisions one comes across other Community instruments, such as programmes and international agreements, and also the commitment to (unwritten) general principles of law.11 Secondly, the system as established by the Treaty soon proved to be insufficient in practice. It has therefore been supplemented by means of the inventiveness not only of the EC institutions involved in the lawmaking process, but also of the Court of Justice. The former have taken recourse to a whole range of instruments not provided for by the Treaty, such as resolutions, communications, guidelines etc. The latter has made its contribution notably by considering general principles of law and fundamental rights to be also a source of EC law, and by concretising them. So, the EC Treaty does not contain any exhaustive provision listing all the sources of Community law, let alone define a conclusive hierarchy among them or in any way clarify the relationship inter se. This raises the question as to how these other sources fit into the — only apparently — ‘neat and tidy system’12 of instruments as provided for in Article 249 EC. The broad conception of the notion of source of law in this respect allows for a classification into primary, secondary and tertiary sources. More particularly, a hierarchical distinction can be made between the various sources of law on the basis of firstly whether or not legally binding force has been attributed to them. This is the case as regards primary and secondary sources of Community law, whereas tertiary sources are characterised by the fact that they lack such attributed legally binding force.13 Secondly, this distinction is based on the precedence one source takes over another. Obviously, primary sources are at the top of the hierarchy and the lawfulness of secondary Community law depends on its compatibility with this primary law.14 The same goes for tertiary Community law in relation to primary and secondary Community law.15 10 Koopmans (1995), p 692. 11 As regards (framework)

programmes, see eg Article 166 EC; international agreements, Article 300 EC; and general principles of law, Article 288 EC. 12 Hartley (1998), p 100. 13 Which is not to say that they can never have such binding force or legal effects. See Part III on this. 14 Cf Lasok and Bridge (1991), p 113, and Lenaerts and van Nuffel (1999), p 640. 15 See in more detail Section 6.3.

Sources of EC Law and EC Legislation

37

It will be seen that not every possible source of Community law fits in smoothly with this classification. Certain sources can be said to be ‘inbetween’, because it is not clear or is at least disputed whether they constitute a source of EC law at all. Apart from non legally binding Community acts, this has been argued with respect to supplementary conventions concluded between Member States, the acts of representatives of the governments of the Member States meeting in the Council and the body of case law of the ECJ. Moreover, some sources may also be located somewhere ‘in-between’ in the sense that some of their rules are of a primary nature and others of a secondary nature.

2.3

2.3.1

PRIMARY SOURCES

The EC, ECSC, EAEC Treaties and Related Acts

The EC Treaty is at the heart of the Community legal order and as such provides the basis for Community legislation. It is often perceived as the — or a kind of — constitution of the EC.16 The case law of the ECJ, and in particular its ruling in the Les Verts Case, quoted in Section 2.1, has prompted this perception: that constitutional rules have priority over derived, secondary rules of law is a matter of course not only in national legal systems. In the Community legal system, the primary nature and precedence of the EC Treaty can be inferred from several Treaty provisions. Article 5 first paragraph and Article 7 EC make clear that the Treaty is at the top of the hierarchy, by stipulating that the Community and its institutions have to act within the limits of the powers conferred upon them by the Treaty. The wording of Article 249 EC confirms this, where it provides that the instruments mentioned therein can only be adopted ‘in accordance with the provisions of this Treaty’. Adopting an act without taking this requirement into account makes it liable to annulment under the procedure of Article 230 on the ground of infringement of the Treaty, or to a finding of invalidity in an Article 234 procedure. The wording of Article 234 itself confirms the constitutional status of the EC Treaty, as it makes clear that Treaty provisions are not susceptible to a finding of invalidity by the Court. Also the fact that amendments of the EC Treaty can only come about by agreement of the Member States themselves, and not by means of an act of the EC institutions,17 can be seen as further confirmation of its higher, constitutional nature. 16 Cf for instance, Bernhardt (1983), pp 69–70; Beutler et al (1987), p 44; Lasok and Bridge (1991), p 113; Hirsch Ballin (1992), pp 16–19 and Lenaerts and van Nuffel (1999), p 514. 17 Article 48 TEU.

38

Lawmaking in EC Law

It is also beyond doubt that the numerous protocols annexed to the EC Treaty on the occasion of the various Treaty amendments constitute primary Community law, since Article 311 EC explicitly declares these to be an ‘integral part’ of the EC Treaty. This is not the case for the declarations attached to the EC Treaty, which are considered to be non legally binding statements, adopted unilaterally or by all Member States in the framework of intergovernmental conferences.18 The Treaty establishing the European Coal and Steel Community (which expired in 2002), the Treaty establishing the European Atomic Energy Community, the Treaties amending and completing the EC Treaty 19 and the various Accession Treaties also constitute primary law.20 Furthermore, the Council of Ministers has adopted some specific acts that can also be considered to belong thereto, because their entry into force is equally made dependent on adoption by the Member States in accordance with their respective constitutional requirements. These are notably the Act concerning direct elections of the European Parliament (1976), adopted on the basis of (ex) Article 138(3) of the EC Treaty, and the Budgetary treaties concluded on the basis of its (ex) Article 201(2).21

2.3.2

Intermezzo: The Necessity of Additional Sources of Law

That the EC Treaty thus constitutes a very important, primary source of Community law, if not the most important, is beyond dispute. Yet, because the EC Treaty is a traité-cadre, containing quite a number of ‘open’ norms, it has been necessary to establish a considerable body of secondary Community law as well, specifying further and putting into effect the aims and objectives contained in the Treaty. From Articles 2 to 4 EC, listing the main objectives of the EC and the ways in which these are to be realised, two methods of integration can in fact be deduced: negative and positive integration.22

18 See Lenaerts and van Nuffel (1999), p 643. 19 Notably the Convention on Certain Institutions

Common to the European Communities (1957), the Merger Treaty (1965), the Single European Act (1986), the Treaty on European Union (1992), the Amsterdam Treaty (1997) and the Nice Treaty (2001). However, one should not forget that some parts of in particular the TEU do not form part of EC law at all (Titles I, V and VI). 20 First Treaty of Accession and its Annexes (1972); Second Treaty of Accession and its Annexes (1979); Third Treaty of Accession and its Annexes (1985), see its Article 6; Fourth Treaty of Accession and its Annexes (1994), see its Article 7. 21 See Lenaerts and van Nuffel (1999), p 644. 22 The terms of negative and positive integration were introduced by Tinbergen. See Kapteyn and VerLoren van Themaat (1995), p 73.

Sources of EC Law and EC Legislation

39

Negative integration refers to the elimination of barriers or obstacles to the internal market, and hence to European integration, by means of provisions prohibiting or prescribing certain behaviour. The application of these provisions should lead to integration of the national markets.23 Yet, specific Community rules must also be established in order to remove all obstacles to the internal market and to guarantee workable competition. As tensions may exist between the realisation of the internal market and (legitimate) objectives underlying national measures constituting an obstacle to free movement, there is a need for Community measures attuning national law and policy to each other or aiming at the integration of national policies. This is referred to as positive integration.24 So, positive integration is often complementary to negative integration. Or to put it another way, the realisation of market integration requires not only prohibitive or prescriptive measures, but also policy integration measures. The EC Treaty can thus be said to constitute the framework of the European house, which has to be finished off and furnished by secondary legislation, on the basis of these Treaty provisions. In quite a few of its provisions, the EC Treaty imposes the adoption of such legislation. One question arising in this regard, and to be addressed below, is whether the instruments for which the Treaty provides are adequate and sufficient in this respect. Furthermore, the fact that the EC Treaty constitutes a traitécadre and not a traité-loi and does not contain a catalogue of general principles of law25 also accounts for why it must be possible to have recourse to — unwritten — general principles of law in order to complete and interpret (written) EC law.26

2.3.3

General Principles of Law

Initially it was not clear whether and, if so, how the EC was bound to observe general principles of law, including fundamental rights, since the EC Treaty was rather silent on this, providing for neither a general commitment to such principles and rights nor a catalogue thereof. Only Article 288 EC, concerning the non-contractual liability of the EC, has always contained an explicit reference to ‘the general principles common to the laws of the Member States’, yet without specifying these further.

23 Kapteyn

and VerLoren van Themaat (1995), p 541. Important Treaty provisions containing such obligations are Articles 25, 28, 39, 43, 49 and 141 EC. 24 Kapteyn and VerLoren van Themaat (1995), pp 541–542. 25 Note however the adoption of the Charter of Fundamental Rights, OJ 2000, C 364/1. 26 Cf Commentaire Mégret (1993), p 155.

40

Lawmaking in EC Law

The Court has meanwhile recognised and developed a number of general principles of Community law, for instance the principles of legal certainty, legitimate expectations, equality and proportionality.27 The EC institutions are obliged to respect these principles in the exercise of their functions and in the decision-making process.28 That general principles of law form part of ‘the law’ to be observed under (now) Article 220 EC already became clear in the Internationale Handelsgesellschaft Case, where the Court held that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.29

General principles of law encompass not only fundamental rights, but also requirements for the lawfulness of the administrative and legislative practice.30 Consequently, general principles form a standard for review of Community acts, which may be subject to annulment or to a finding of invalidity for conflicting with them. This does not, however, apply for all general principles of law, as some are of a more constitutional nature (such as the fundamental rights) than others. So in fact not all general principles of law are of a primary nature.31 Some principles could in fact already be identified in the original EEC Treaty, for instance the principles of non-discrimination on the ground of nationality (now Article 12 EC) and Community loyalty (now Article 10 EC).32 In many cases, however, the Court has been called upon to develop such principles itself, taking inspiration from international treaties for the protection of human rights and the constitutional traditions common to the Member States.33 This also shows that, indirectly, the national and international legal systems are another source of Community law, at least in so far as the ECJ draws (or better: has to draw) on these systems in order to fill lacunae in the European legal system.

27 Cf Commentaire Mégret (1993), at pp 157–58. 28 Isaac (1998), p 159. Cf Lenaerts and van Nuffel

(1999), pp 645–47. That the general principles of Community law are binding on all authorities entrusted with the implementation of Community law provisions, already follows from Case 230/78 Eridania [1979] ECR 2749 and Joined cases C–31/91 to C–44/91 SpA Alois Lageder [1993] ECR I–1761, para 33. 29 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para 4. See also Case 29/69 Stauder [1969] ECR 419 and Case 44/79 Hauer [1979] ECR 3727. 30 Koopmans (1991), p 929. Cf also van Gerven (1983), Tridimas (1999), pp 4–6, and Jans et al 2002, pp 156–57. 31 See Schermers and Waelbroeck (1992), pp 27–29; Lenaerts and van Nuffel (1999), p 641. 32 See eg Lauwaars and Timmermans (1999), pp 38–42. 33 Case 4/73 Nold II [1974] ECR 491, para 13 and Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para 4. This case law has now in fact been codified in Article 6(1) and (2) TEU.

Sources of EC Law and EC Legislation 2.3.4

41

International Treaties Concluded by the EC

Article 300 EC provides the possibility for the EC to conclude international treaties with international organisations and third countries. That these form a source of Community law is beyond doubt, the more so as its paragraph 7 declares agreements concluded within the framework of Article 300 to be binding on the institutions of the Community and the Member States.34 These treaties form a substantial volume of law and individual rights may be derived therefrom. Their primary nature is evinced by the fact that, in the framework of an Article 230 or 234(b) EC procedure, secondary acts such as directives are subject to a finding of annulment or invalidity for incompatibility with such an international treaty provision.35 Moreover, later case law has indicated that derived Community legislation must be interpreted as much as possible in conformity with these treaties.36

2.4

2.4.1

SECONDARY SOURCES

Legislation

2.4.1.1

The Concept of Legislation in EC Law

It is only since the Treaty of Amsterdam entered into force that the EC Treaty has referred to the ‘legislative’ activity of the institutions. This is done in Article 207(3) EC, which states that the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases …

Furthermore, the Protocol concerning the role of the national parliaments in the European Union attached to the Treaty of Amsterdam makes reference to proposals of the Commission for legislation and the legislative activity of the Union. The Treaty drafters have never as such established

34 Joined

cases 21–24/72 International Fruit Company [1972] ECR 1219, para 18. See also Opinion 1/91 First EEA Case [1991] ECR I–6079, para 37. 35 Joined cases 21–24/72 International Fruit Company [1972] ECR 1219, paras 7 and 8 and the dictum. See also Lenaerts and van Nuffel (1999), p 665. 36 See eg Case C–61/94 Commission v Germany [1996]ECR I–3989, para 52; Case C–284/95 Safety High Tech v S&T [1998] ECR I–4301, para 22 and Case C–341/95 Bettati v Safety Hi-Tech [1998] ECR 4355, para 20.

42

Lawmaking in EC Law

a concept of legislation or of legislative instruments in the EC Treaty. ‘Laws’ are unknown in the Community legal system. Yet, on the basis of Article 249 EC, read in conjunction with the Rules of Procedure of the Council, the case law of the ECJ and the various proposals made to introduce ‘laws’, it is in fact possible to construe such a concept. Of the five instruments provided for by Article 249 EC, the regulation, directive and decision are the ones that are attributed legally binding force. Furthermore, as will be seen in more detail below, regulations and directives both have a general scope. This general nature, together with their binding force, has been the inducement for the ECJ to refer to these instruments as legislation, although one does not find this terminology in Article 249 nor elsewhere in the Treaty. The Court did this, for instance, in the Kloppenburg and Fedesa Cases.37 Elucidating also are the Council’s Rules of Procedure, which provide in their Article 7 for ‘Cases where the Council acts in its legislative capacity’. This is the only place where a definition of a ‘legislative act’ can be found in a formal Community source, but this definition was established particularly to facilitate public access to the documents involved.38 According to this provision: The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning interinstitutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).39

The various proposals to introduce a concept of ‘law’ or ‘legislative act’ in the EC Treaty have so far all failed to be adopted. As early as 1984, the European Parliament pleaded for a new source catalogue, and especially for the introduction of ‘laws’. 40 In 1990 a similar idea was proposed in its Resolution on the constitutional basis of European Union, which distinguished amongst laws of a constitutional nature, laws of a legislative nature and implementing and management regulations. The directive had disappeared as a legislative instrument in this 37 Case 70/83 Kloppenburg [1984] ECR 1075, para 11 and Case 160/88 R Fedesa [1988] ECR 4121, para 8. See also Case C–298/89 Gibraltar v Council [1993] ECR I–3605, para 17. 38 See also van Meerten (2001), pp 166–169. 39 Council Decision of 5 June 2000 adopting the Council’s Rules of Procedure, OJ 2000, L 149/21. 40 See the proposal of a Draft Treaty Establishing the European Union and notably its Articles 34 to 36, PE 88/842/Def. and the commentary by Nickel and Corbett (1985). Cf also Kortmann (1996), p 119.

Sources of EC Law and EC Legislation

43

draft Constitution. 41 In the resolution adopted on 17 May 1995, the EP pleaded rather carefully for the introduction of ‘a certain hierarchy of acts’, which could be achieved by the introduction of a new category of implementing acts.42 Very recently, the EP drew up a new report ‘on the typology of acts and the hierarchy of legislation in the European Union’ and adopted a resolution on this.43 The European Commission too has put forward the introduction of laws and implementing regulations in the Community legal system and the elimination of the directive.44 So, these proposals seem to have been prompted on the one hand by the problematic implementation and enforcement of EC legislation and especially of directives in the Member States and, on the other, by the fact that no distinction is made between framework or constitutional legislation and administrative or implementing acts. In the light of the Intergovernmental Conference of 2000 and the adoption of the Nice Treaty, a proposal was made by the Portuguese Presidency to introduce the concept of legislative act in Article 249.45 This proposal aimed at clarifying the notion of legislative act as opposed to implementing or administrative act, with a view to decreasing the administrative burden imposed on the EP and the Council as a result of the ever-increasing number of co-decision procedures. Without eliminating the other instruments provided for by Article 249, it proposed the adoption of legislative acts by the European Parliament acting jointly with the Council under the co-decision procedure of Article 251 EC. The proposal specified that: A legislative act shall have general application. It shall, as far as possible, having due regard for the nature of the subject matter, define the general principles, the objectives to be achieved and the essential elements of the measures to be taken to implement them. A legislative act may include provisions which are: — binding and directly applicable in the Member States; — binding upon each Member State as to the result to be achieved, but which leave to the national authorities the choice of form and methods. 41 Resolution 42 Resolution

of 12 December 1990, OJ 1991, C 19/65, points 45 and 46. following the Report on the functioning of the Treaty on European Union with a view to the 1996 Intergovernmental Conference – implementation and development of the Union (the Bourlanges Report), A4–0102/95. 43 A5–0425/2002 (the Bourlanges Report), adopted on 3 December 2002. 44 In the run-up to the IGC leading to the TEU. See also the Koopmans Report, pp 15–19 on these proposals of the EP and the Commission and the pros and cons of the directive as a Community legislative instrument. 45 Conference of the Representatives of the Governments of the Member States, Presidency note, CONFER 4740/00, Brussels, 10 May 2000. See also discussion paper for the Working Party of Representatives of the Governments of the Member States, drawn up subsequently to this proposal, SN 3068/00, Brussels, 30 May 2000.

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Lawmaking in EC Law

More recently, the European Convention has resulted in new proposals regarding the reclassification and redefinition of the Community legal instruments, aimed at reducing the number of instruments and also at using the same instruments in all three pillars of the EU.46 Six types of legal acts are thus identified in Article I–32 of the draft Constitutional Treaty. In particular, it introduces a distinction between legislative and non-legislative acts, the latter of which comprise delegated and implementing acts. The two types of legislative acts identified therein are the ‘European law’ and the ‘European framework law’, which will replace respectively the present ‘regulation’ and ‘directive’: A European law shall be a legislative act of general application. It shall be binding in its entirety and directly applicable in all Member States. A European framework law shall be a legislative act binding, as to the result to be achieved, on the Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result.

The delegated and implementing acts will be cast in the form of regulations and decisions: A European regulation shall be a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitution. It may either be binding in its entirety and directly applicable in all Member States, or be binding, as regards the result to be achieved, on all Member States to which it is addressed, but leaving the national authorities entirely free to choose the form and means of achieving that result. A European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

Finally, the recommendation and the opinion are to remain Community legal instruments, and their description remains virtually unchanged: Recommendations and opinions adopted by the Institutions shall have no binding force.47

Although the various aforementioned proposals and Article 7 of the Council’s Rules of Procedure were inspired by different considerations — hierarchy of acts and transparency/simplification respectively — a

46 CONV 850/03, adopted on 18 July 2003. 47 Surprisingly, in the French version the wording

has changed from ‘ne lient pas’ to ‘n’ont pas d’effet contraignant’. See on this Monjal (2003), p 2181.

Sources of EC Law and EC Legislation

45

number of general features of EC legislation may be seen in them, albeit some only implicitly.48 Legislative acts can be said to be acts that: — have legally binding force — lay down rules (of conduct) of general application49 — have external effect; that is, in and/or for the Member States and other addressees — are adopted unilaterally by the Community institution(s) according to a specific procedure — have a legal basis in the Treaty. Only two of the present Article 249 EC instruments — regulations and directives — will be found to fulfil all these requirements of the concept of legislation, although there are differences between them, in particular as regards the scope of their binding force and the functions they fulfil in (the development of) Community law. Before looking at these instruments in more detail, the two main functions of legislation in the Community legal system as such should be considered. 2.4.1.2

The Purposes of Harmonisation and Unification

The shaping of positive or policy integration through EC legislation primarily concerns Integrationsrechtsetzung.50 That is to say, although the social dimension of European integration is certainly gaining increasing attention, it is no exaggeration to say that EC legislation is still largely dominated by economic motives, in particular the overall wish of removing barriers to trade.51 The intensity of this Integrationsrechtsetzung may vary, however, and the prevailing view seems to be that only a distinction between harmonisation and unification needs to be made in this respect.52 The notion of harmonisation can be said to refer to integration processes that do not lead to the creation of uniform law, but rather to the creation of common frameworks or legal rules establishing a common goal, which leave room for divergent national specification.53 Although several authors have 48 Cf also Morand (1968), on some of these features. 49 Interestingly, the Council’s Rules of Procedure do

not mention this feature and appear to consider ‘individual’ decisions as legislation as well, which probably has something to do with the ‘transparency background’ of this definition. 50 Bruha and Kindermann (1986), p 294. 51 Cf Dehousse et al (1992) (b), pp 2–3. 52 Different views have been expressed on the differences and similarities between unification, harmonisation and coordination. Cf Lauwaars and Maarleveld (1987) for an interesting overview and examination of this. See also Vignes (1990), p 361. 53 Lauwaars and Maarleveld (1987), pp 8–10. For the different forms of harmonisation, see Slot (1996), p 379.

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argued that coordination differs from harmonisation, harmonisation is also often referred to as approximation or coordination of national law and policy, in legal writing as well as in the EC Treaty itself.54 Article 3(1) under point h thus stipulates that the laws of the Member States are to be approximated to the extent required for the functioning of the internal market. Unification is of a higher intensity, as it aims at the establishment of common, uniform EC rules replacing national ones, with the aim of making a certain legal relation subject to the same rules.55 Only in a limited number of areas does the EC Treaty provide for such common policy, in particular commercial policy (Article 3(1)b), agricultural and fisheries policy (Article 3(1)e) and transport policy (Article 3(1)f). So, in most areas EC legislation concerns the approximation, harmonisation or coordination of national law.56 2.4.1.3

Regulations

According to Article 249 EC: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

A first key element of this definition is that the regulation is of ‘general application’. According to the case law of the Court, this must be taken to mean that it is of a general, normative nature, giving rules for objectively determined situations, and that it has legal consequences for abstract and open categories of persons.57 As the Court explained in the early Watenstedt Case, this is not to say that a measure loses its character as a regulation simply because the group of persons concerned can be determined by its characteristics or by its number at a given moment of time, as long as it applies as the result of an objective situation of law or of fact.58 The decisive element is thus that the measure does not relate to one 54 In

Subsections 5.4.3.2 and 5.4.4.2, I will consider in more detail whether a distinction between harmonisation and coordination may be called for in relation to steering soft law instruments, in particular as regards certain recommendations and guidelines. This also in connection with the use of the open method of coordination. 55 Lauwaars and Maarleveld (1987), pp 8 and 49–50. 56 Cf point 61 of the Commission’s White Paper on the Internal Market, COM(85)310 final, in which the harmonisation approach is said to be the cornerstone of Community action. Cf also Dehousse et al (1992) (b), p 2. 57 The Court already considered so in Joined cases 16–17/62 Confédération nationale des producteurs de fruits et légumes, [1962] ECR 487 and Case 101/76 Koninklijke Scholten Honig [1977] 797. See also Lauwaars (1970), p 8. 58 Case 6/68 Watenstedt [1968] ECR 409. Even the fact that, at some point, only one person or company is concerned by a certain regulation, does not detract from this conclusion. See for instance Case 231/82 Spijker [1983] ECR 2559.

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concrete, individual case, but that during its period of validity other persons can also be concerned by it. The ‘objective situation’ itself to which a regulation refers may well be very specific.59 The second element of the above definition concerns the legally binding force of the regulation, which has two aspects. Firstly, the fact that the regulation is declared binding ‘in its entirety’ means that the regulation is binding not only as to the result to be achieved, but also as regards the ways and means it prescribes. Member States are thus left no discretion (at least in theory) as to the ways in which the objectives of the regulation are to be achieved. It is the desire for uniform application of the rules laid down in regulations that underlies this aspect.60 This desire also becomes clear from the second aspect of binding force of regulations, which is their direct applicability. Regulations enter into force and are applicable in the Member States without first having to be transposed into national law. They automatically become part of the national legal systems and directly entail consequences for the parties concerned. Logically, then, national law that conflicts with a regulation must be abrogated. Their transposition into national law is even forbidden, as this would endanger the simultaneous and uniform application of Community law by hiding the origin of a certain measure.61 That is not to say that regulations may never require implementing measures, in particular where they contain merely instruction norms.62 For instance, an agricultural regulation contains an entitlement of farmers to a certain subsidy, but leaves it to the Member States to establish the procedure by which the subsidy can be obtained. The fact that regulations are declared directly applicable ‘in all Member States’ in itself indicates that they concern not only the Member States but also individuals. Direct applicability thus necessarily entails the possibility for the parties concerned to make effective the rights and obligations contained in them. In particular, they can rely on them before the national court, irrespective of whether the defendant is a state authority or another individual, and the court will have to set aside conflicting national law. In other words, regulations have both vertical and horizontal direct effect. The foregoing confirms that a regulation is indeed essentially a legislative instrument, not directed towards a particular party and laying down 59 See eg Council Regulation 2905/94 of 23 November 1994 establishing detailed rules for the application of the trade monitoring system for certain fishery products coming from Norway, OJ 1994, L 307/1. See also Lauwaars (1970), pp 10–11. 60 Cf Capotorti (1988), p 152. 61 The Court already made this very clear in Case 34/73 Variola [1973] ECR 981, paras 10–11. See also Craig and de Búrca (1998), pp 106–7, on the implications of this case law and Bonnes (1994), p 39 ff. 62 See also Capotorti (1988), p 153.

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general rules of conduct, binding immediately both at the Community and the national level. Given this general and direct applicability of the regulation, and in particular its vertical as well as horizontal direct effect and the prohibition of transposition, it is also the instrument of secondary Community law that has the most direct impact in the national legal order. In view of those characteristics, it is ‘common to think of regulations as akin to either primary or secondary legislation made by Member States’.63 Indeed, they are often compared to the national instrument that is known as loi or law in most Member States.64 This also shows that the regulation is particularly apt for the establishment of common policy throughout the EC. Treaty articles providing for the establishment of uniform Community policies, and the actual use of instruments in the areas concerned, provide confirmation of this.65 Yet, it is important to point out that many regulations, for example in the area of agriculture, are in fact of more an administrative or implementing nature than a legislative nature, because of the failure in the Community system of sources to provide for specific administrative or implementing instruments. 2.4.1.4

Directives

According to Article 249 EC: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of forms and methods.

The directive as an instrument to shape Community law and policy is quite specific to the Community legal system, and does not have as such an equivalent in national law.66 Its particular nature simplifies decisionmaking by a multiplicity of actors, but its use has given rise to numerous problems, notably as regards its application in national courts: hence the above proposals for changing the Community legal instruments and in particular the replacement of directives. To begin with, Article 249 refrains from indicating that the directive is of general application and therefore establishes general rules of conduct

63 As Craig and de Búrca (1998) observed, at p 106. 64 Cf for instance Lauwaars (1970), p 23, wetten in

formele zin; Capotorti (1988), p 153, ‘real Community legislation’; Gaja et al (1986), p 124, ‘the most integrated form of Community secondary legislation’. 65 Cf the development of the common agriculture policy on the basis of inter alia Article 37; although this also provides for the use of other instruments, an enormous number of regulations have been adopted. 66 The most comprehensive work on directives is Prechal (1995).

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applicable to in principle an unlimited and open group of persons. However, as the following will make clear, this is in fact implied in its features.67 Unlike the meaning of directives in common parlance, the above definition puts it beyond doubt that the EC directive is not a mere guideline but an instrument which has been attributed legally binding force. At the same time, its wording also makes it immediately clear that the scope of this binding force differs from that of regulations. Directives are only declared binding as to the result they prescribe, and this only for the Member States to which they are addressed. Consequently, they are not binding in their entirety and not directed towards everybody who may be concerned by them. The foregoing implies that the directive entails a binding instruction for the Member States to adapt their national law in such a way as to establish the result prescribed in the directive. Member States must take the necessary measures to transpose the directive into national law and thus bring their national law into conformity with the contents of the directive, within the time limit prescribed by the directive. With a view to ensuring the simultaneous and uniform application of Community law, these obligations are strict ones.68 As in the case of regulations, there is an obligation on the Member States to maintain the result prescribed by these instruments in practice. Effective application and enforcement therefore form part of the binding force.69 So, an individual is normally not concerned by the directive itself, but by the national implementation measures. Consequently, obligations and rights that a directive entails for an individual will in the first instance result from this national legislation. Initially at least, this was also considered to imply that directives lack direct applicability, and in particular because Article 249 EC does not attribute this to directives. However, the Court of Justice has established that directives can have vertical direct effect and can thus be invoked before the national judge by individuals vis-a-vis the state or state authorities.70 Member States often fail to transpose directives in time or to do so correctly, and recognising that directives have direct effect means that Member States can no longer hide behind their own failure to act.71 To a certain extent, this rationale behind 67 Cf also Case C–163/99 Portugal v Commission [2001] ECR I–2613, discussed below in Subsection 2.4.2. 68 Prechal (1995), p 107. 69 Prechal (1995), p 58. 70 Case 8/81 Becker [1982] ECR 53. Interestingly, in the framework of the third pillar of the TEU, the Member States have been careful not to create this possibility as regards framework decisions, which otherwise greatly resemble directives. See Article 34(2)b TEU. 71 See for an extensive discussion of the relevance of this ‘estoppel principle’, Prechal (1995), pp 251–60.

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the recognition of vertical direct effect of directives also explains why the Court has so far denied their horizontal direct effect. The Court has emphasised in this respect that the binding effect of directives pursuant to Article 249 only exists as regards Member States, and therefore directives cannot directly impose obligations on individuals.72 The Member States are left a margin of discretion, not as regards the contents of the directive,73 but as regards the choice of forms and methods or the kinds of instruments or measures by which the directive is to be implemented. Yet, the Member States’ freedom is in fact curtailed in a number of ways.74 Firstly, as observed in Chapter 1, directives are in fact quite often of a precise and detailed nature, and the distinction from regulations has become rather blurred. With a view to the result that is aimed at, however, precise and detailed directives, ensuring the ‘absolute identity’ of certain national provisions, may in fact be necessary. The Court did indeed consider this in the Enka Case, with respect to the harmonisation of national customs provisions in order to bring about the uniform application of the common customs tariff.75 Directives sometimes entail that completely new legislation must be adopted or existing legislation fundamentally revised.76 Directives are sometimes adopted concerning matters that are not yet governed by national legislation, for instance the protection of software and the like.77 Secondly, the Court of Justice has formulated a number of requirements which transposition measures must meet. The Member States must take ‘all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues’.78 This does not mean that directive provisions have to be enacted in precisely the same words in a specific express legal provision of national law; a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner.79

This illustrates that proper implementation of a directive does not automatically mean legislative action. Under certain conditions, the existence 72 Case 152/84 73 Although in

Marshall I [1986] ECR 723 and Case C–91/92 Faccini Dori [1994] ECR I–3325. the case of a minimum harmonisation directive, the Member State may also be left a considerable degree of discretion as to the substance of the rules to be established. 74 Cf Prechal (1995). 75 Case 38/77 Enka [1977] ECR 2203, paras 11–12. 76 For instance, the introduction of the ‘BV’ in the Netherlands pursuant to the first EC directive, as noted by Barents and Brinkhorst (2001), p 170. 77 Barents and Brinkhorst (2001), p 169. 78 Case 14/83 Von Colson and Kamann [1984] ECR 1891, para 15. 79 Case 247/85 Commission v Belgium [1987] ECR 3060, para 9. Cf also Case C–361/88 Commission v Germany [1991] ECR I–2567.

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of general principles of administrative or constitutional law may render implementation measures superfluous.80 The decisive point, in the end, is that the directive is transposed into national law in a legally binding way and that legal certainty is guaranteed. It is consistent case law that transposition by means of circulars81 or administrative practice82 cannot be considered proper implementation, as these are subject to change at will by the administration. Implementation of this kind could also affect the Sperrwirkung or blocking effect of directives, which means that Member States are not allowed to change national law that has been adopted in order to implement a directive.83 Furthermore, such measures are not very accessible and ascertainable for individuals, which conflicts with the requirement of legal certainty. Yet, transposition by lower national authorities, by way of delegation, is possible, as long as the effective implementation of the directive is ensured.84 The same goes for implementation by means of collective agreements of management and labour. Directives now sometimes even provide explicitly for this possibility.85 It is, however, the Member State that remains responsible for the timely and correct implementation of directives.86 In view of the above observations, it is not surprising that in legal writing directives are sometimes characterised as ‘indirect’ Community legislation or ‘two-stage’ legislation.87 In fact, the Court too has referred to the directive as ‘normally a form of indirect regulatory or legislative measure’.88 The directive has also been characterised as an instrument of ‘limited intervention’.89 This shows that the directive can be considered the most appropriate instrument for bringing about the harmonisation or coordination of national rules, as far as necessary for attaining the

80 Case

29/84 Commission v Germany [1985] ECR 1661, para 23. The general principles must guarantee the full application of the directive and, when the directive intends to create rights for individuals, the legal position must be clear and precise, the persons concerned must be aware of their rights, and the possibility of relying on these rights before the national court must be ensured. The origin of the directive must be clear as well. 81 See for instance Case 239/85 Commission v Belgium [1986] ECR 3657, para 7. 82 See for instance Case 429/85 Commission v Italy [1988] ECR 849, para 12. 83 Prechal (1995), pp 24–25. 84 Case C–435/92 APAS [1994] ECR I–67. 85 For instance, Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ 1992, L 348/1. 86 And will possibly face an Article 226 EC procedure for failing to fulfil its Community law obligations. Furthermore, in a sense the discretion of the Member States can also be said to have become more limited as a result of the strengthened control mechanisms on the implementation of directives; ie as a result of the recognition of vertical direct effect, consistent interpretation and State liability, and the more general requirement of effective legal protection. 87 See Capotorti (1988), p 154. 88 Case C–298/89 Gibraltar v Council [1993] ECR I–3605, para 16. 89 Prechal (1995), p 4.

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objectives of the Treaty.90 This is also expressed by Article 94 EC, as it designates directives as the instrument by which the approximation of national rules affecting the establishment or functioning of the common market should be carried out.91 As such, it is quite a flexible instrument for developing Community policy and one that does leave room for a fairly smooth nesting of Community law within the national legal order, in contrast to the regulation, which is ‘parachuted’ into the national legal systems.92 It forms an alternative to the use of regulations in all those cases where a uniform European policy is not necessary or aimed at, or is simply not feasible. Yet, as in the case of regulations, it should also be understood that directives can be of an implementing nature, rather than a legislative nature. 2.4.2

‘Individual’ Decisions

According to Article 249 EC: A decision shall be binding in its entirety upon those to whom it is addressed.

Obviously, a decision is a legally binding instrument, and is this ‘in its entirety’, like the regulation, without requiring any further implementation measures. A clear difference from both regulations and directives is, however, that the decision is only binding upon its addressee(s), to be defined by the decision itself; that is, it is binding upon only a limited number of identifiable persons or group(s).93 Thus, in the Gibraltar v Council Case the Court held that the criterion for distinguishing between a measure of a legislative nature and a decision within the meaning of (now) Article 249 EC must be sought in the general application of the measure in question.94 So, in general the Article 249 decision does not fulfil the condition of laying down general rules of conduct to be applied to an open group of addressees, which would allow it to be characterised as legislation. In view of this, the characterisation of the decision as legislation in the Council’s Rules of Procedure is largely a misrepresentation.95 There is 90 See also Lauwaars (1970), p 24. 91 (Ex) Article 100a (now 95) EC equally

provides a basis for harmonisation, but refers to the adoption of ‘measures’ and not specifically directives. The Member States did however express a preference for the use of directives in this respect in the Declaration on Article 100a of the EC Treaty, annexed to the SEA. See also Prechal (1995), p 5. 92 This description is taken from Craig and de Búrca (1998), p 108. 93 Cf the early Case 25/62 Plaumann [1963] ECR 95. 94 Case 298/89 Gibraltar v Council [1993] ECR I–3605, para 15. 95 But see note 49 above for a likely explanation for this.

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only one situation in which this may be otherwise, and that is when the decision is addressed to all Member States and its contents are of a more general nature. Usually, however, the decision aims only at applying general rules of Community law to a concrete, individual case and at giving a binding statement in this respect.96 This was also emphasised recently by the Court of Justice in the Portugal v Commission Case, where it was called upon to rule on the possible infringement of the principle of proportionality as laid down in Article 5 EC. At issue in particular was the choice offered by Article 90(3) EC between the adoption of a directive and a decision. According to the Court: The choice depends on whether the Commission’s objective is to specify in general terms the obligations arising under the Treaty, or to assess a specific situation in one or more Member States in the light of Community law and determine the consequences arising for the Member States or Member State concerned (emphasis added).97

The foregoing also shows that the function of decisions in the EC lawmaking process, compared with that of regulations and directives, is a fundamentally different and also a more modest one. This is the more so, given that the EC institutions are called upon only to a limited extent to apply general Community law to individual situations, and then mainly in the areas of competition law and state aids.98 In general, it is the national authorities and in particular the national courts that have to apply Community law in concrete cases. 2.4.3

Sui Generis Decisions

The source catalogue of Article 249 EC is deficient not only in failing to provide for distinct legislative and implementing legal instruments. Besides administrative or implementing acts, the EC institutions have to adopt yet other kinds of rules or measures for which the Article 249 instruments are not suitable. These are in particular measures that are not directed towards the Member States or their citizens, but are of a more internal nature or concern matters of internal organisation. At issue are, for instance, the decisions relating to the internal household of the EC, such as those establishing the rules of procedure of the institutions.99 Other examples are Article 195 EC, according to which the EP lays down 96 Cf Lauwaars (1970), p 32. 97 Case C–163/99 Portugal v Commission [2001] ECR I–2613, para 28. See also para 27. 98 Cf Barents and Brinkhorst (2001), p 160. But see also Section 10.6. 99 Article 199 (EP), Article 207(3) (Council), Article 218(2) (Commission), Article 225(4)

and Article 245 EC (Court of Justice).

(CFI)

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the regulations and general conditions governing the performance of the duties of the Ombudsman, and Articles 210 and 247 EC, providing for the determination by the Council of salaries and related issues of members of the Commission, Court of Justice and Court of Auditors. Decisions by which committees provided for by the EC Treaty are set up and rules governing the functioning of these committees also fall within this category.100 Often, these types of decisions are denoted as decisions sui generis.101 An intention of (at any rate internal) binding force seems to underlie these decisions.102 To some extent at least, inter-institutional agreements can also be said to fall within this category, as they too are primarily of an internal nature. They concern in particular arrangements as to how the institutions will act with respect to each other in certain situations, or how they will approach a certain matter.103 Yet, their ultimate classification (as secondary or tertiary source) and binding force will depend both on the form in which the particular agreement is cast — a (sui generis or Article 249) decision, code of conduct or otherwise — and on the intention of its authors.104 Given the primarily internal nature of sui generis decisions, they cannot be designated as legislation.105 Yet, this does not necessarily mean that they are devoid of all external effect and do not affect third parties.

2.4.4

Relations between the Secondary Sources

According to some, the differences particularly in the intensity of the binding force of these instruments suggest a hierarchy, with regulations at the top, EC decisions coming next and directives coming last.106 Although one might like to see things this way, the foregoing has already demonstrated that Article 249 EC does not in fact establish a hierarchy among the secondary instruments listed therein. To put it simply, a directive cannot be considered invalid for conflicting with a regulation, nor vice versa. Yet, it is clear that rules of a framework, legislative nature have priority over rules implementing them, although both can be laid down in regulations or directives.107

100 See Article 209 EC. 101 Cf Kapteyn and VerLoren van Themaat (1995), p 199. 102 See also Hartley (1998), p 101, who speaks of decisions sui generis as a residual category of

legally binding Community acts.

103 Cf Lenaerts and van Nuffel (1999), pp 552–553 and Barents and Brinkhorst (2001), 104 Inter-institutional agreements are discussed in more detail in Subsection 5.5.4. 105 Cf also above on Article 7 of the Council’s Rules of Procedure. 106 Hartley (1998), p 100. 107 Cf Lenaerts and van Nuffel (1999), p 641.

p 185.

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Various efforts and proposals to introduce a hierarchy of norms have been made since the mid-1980s, and the need for the introduction thereof has also been discussed in legal writing.108 The question of hierarchy of Community acts was also on the agenda of the Intergovernmental Conference of Maastricht, which led to a declaration that the matter would be considered at the next Intergovernmental Conference. Yet, at the IGC of Amsterdam in 1996 and that of Nice in 2000, no progress or amendments came about in this respect. It is to be expected, however, that the ongoing IGC will lead to changes of the Community legal instruments, as a result of the concrete proposals made in the draft Constitutional Treaty, drawn up by the European Convention. However, in view of the general nature of secondary acts, it does appear possible to locate regulations and directives at a higher level than Article 249 decisions. The case law indicates that the latter must be in conformity with regulations and directives, ie acts of a general nature. Decisions are by their very nature acts that have regard to an individual situation and boil down to the application of a general rule to a particular case. The Court of First Instance has held that a decision cannot restrict or limit the legal effect of a legislative act, unless the latter allows for that.109 As regards the sui generis decisions and inter-institutional agreements, it seems rather self-evident that the institutions have to respect not only primary but also secondary legislation on the basis of the obligation of Community loyalty contained in Article 10 EC. 2.5

TERTIARY SOURCES

The term ‘tertiary’ in relation to the sources of EC law appears to have more than one meaning. Some authors have used the term ‘tertiary sources’ to refer to implementing regulations and directives, in order to distinguish these from the framework, legislative regulations and directives. 110 Others have used it to denote instruments of a soft law nature.111 I use the term in the latter sense. What distinguishes tertiary sources from the above primary and secondary sources is thus the fact that they have not been attributed binding force, ie that they lack ‘inherent’ legally binding force, and that they are generally perceived to lack binding force.112 Furthermore, the ‘tertiary’ nature of soft law is also clear 108 Tizzano

(1996), Curtin (1995), p 3, Bieber and Salomé (1996), Magiera (1995), pp 197–208 and Monjal (2000).

109 Case T–9/93 Schöller v Commission [1995] ECR II–1611, quoted by Tizzano (1996), p 210. 110 Schermers and Waelbroeck (1992), pp 10–11. 111 Baldwin (1995), pp 248–52. Yet, it also occurs that soft law instruments are treated as part

of secondary Community law. Cf Constantinesco (1977), pp 578–79. Chapter 6 for more detail on ‘inherent’ and ‘incidental’ legally binding force. On the concept of soft law, see Chapter 4. 112 See

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from the fact that soft law cannot derogate from primary and secondary Community law.113 Article 249 explicitly provides that recommendations and opinions ‘shall have no binding force’. Nothing is said about the particular functions these instruments fulfil in Community law, although various Treaty provisions prescribe their adoption. Apart from these instruments, the Community institutions now frequently have recourse to other instruments that can be denoted as tertiary sources. These include notably the communications, notices, codes of practice or codes of conduct, Green Papers and White Papers, action programmes, resolutions, declarations, conclusions and guidelines. The functions, characteristics and legal nature of these instruments will be examined in detail in Parts II and III, but the following remark is in place at this point. Some authors have considered that these instruments cannot be considered a source of EC law at all, in the sense of forming part of the law that has to be protected under Article 220 EC.114 Although these instruments are denoted as tertiary sources because of their lack of inherent legally binding force, that is not to say that these instruments are not capable of having ‘incidental’ legally binding force or certain legal effects.115 In view of this and what was said in Section 2.2 on the notion of source of law, I consider that they should be treated as a source of EC law, even if only providing a standard for interpretation. In this respect, one can also point to the fact that to some extent the EC Treaty provides for or at least leaves room for these instruments, as it now contains in many provisions very general terms as to the way in which the EC institutions should act; they may adopt ‘provisions’, ‘guidelines’, ‘measures’, ‘rules’ or ‘programmes’, with no specification of the instrument in which these have to be laid down. To a certain extent at least, recourse is had to these tertiary sources because of the defects of the Article 249 instruments, or because these instruments are not suitable for the purpose aimed at.

2.6

2.6.1

‘IN-BETWEEN’ SOURCES

Agreements Concluded between the Member States

Lasok and Bridge have observed that a cautious approach should be adopted to the problem of conventions between Member States as a source of Community law, since the position is somewhat uncertain.116 113 See Section 6.3 on this. 114 Commentaire Mégret (1993), p 153. 115 A case in point is the early Case 22/70 ERTA [1971] ECR 263. 116 Lasok and Bridge (1994), p 110. Cf in the same sense also Vandersanden

pp 194–95.

and Barav (1977),

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The question of whether agreements concluded between the Member States form a source of EC law is indeed a complex one. Different types of agreements can be distinguished. Most recently, de Witte has made a functional distinction between executive agreements, complementary agreements and autonomous agreements, concluded between all the Member States.117 In his view, executive agreements are concluded in order to implement a provision of the EC or EU Treaty or a secondary law provision. For instance, Articles 214(2) and 223 EC oblige the Member States to take a decision concerning the appointment respectively of the members of the Commission and the Court of Justice. Complementary agreements are concluded whenever the EC and EU Treaties empower the Member States to adopt such agreements, but do not force them to do so. Article 152(2) EC for example urges the Member States to coordinate their public health policies and Article 155(2) EC does the same as regards the development of trans-European networks. According to Article 293 EC the Member States may enter into negotiations and agree upon conventions between each other in respect of a number of issues. The EEX Convention is probably the most important convention that has been adopted on this basis. 118 Autonomous agreements are concluded without the EC or EU Treaty giving cause for this, but are somehow connected to the membership of the EU. An example is the Dublin Convention concerning requests for asylum.119 It is a long-standing feature of Community law that agreements of the Member States are regularly established as an act ‘of the Representatives of the Governments of the Member States, meeting in Council’ (hereafter: RGM acts). Sometimes these are adopted jointly with the Council, in which case they may be referred to as mixed acts.120 According to some authors, the agreements between Member States do indeed constitute a source of EC law, whether they are Article 293 conventions or RGM acts, at least in so far as they cover areas which are within Community competence or which aim at completing the Treaty.121 Others, such as in

117 De Witte (2001), pp 91–92. 118 One agreement was originally

proposed as a Convention on Know-How, but in the end enacted in the form of a regulation: Council Regulation 556/89, OJ 1989, L 61/7. Interestingly, the EEX Convention is now also cast in a regulation: Council Regulation 44/2001, OJ 2001, L 12/1. See de Witte (2001), p 100. 119 De Witte (2001), p 102. Apart from these types of agreements, he also distinguishes partial agreements, when not all Member States are involved. 120 As RGM acts and mixed acts are now often adopted in the form of resolutions, declarations, conclusions and codes of conduct, they will be considered in more detail in Subsection 5.5.1, in particular as regards whether they constitute Community (soft) law instruments or rather international (soft) law agreements. 121 See for instance Barents and Brinkhorst (2001), pp 185–86, who make a distinction between Community kaderbesluiten (RGM acts) and non-Community kaderbesluiten, depending on the scope of the decision in question.

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Commentaire Mégret, consider that even the conventions explicitly provided for by the EC Treaty do not constitute a source of EC law. The fact that the Member States do not proceed to adopt a Treaty amendment or a Council act is said to be an indication that the Member States do not want such agreements to be part of Community law. Moreover, it is considered dangerous to treat them as EC law, as the Community institutions have not participated in the decision-making process.122 De Witte also concludes in respect of the three types of agreements that they constitute international law agreements.123 Lenaerts and van Nuffel are also of the opinion that these conventions do not constitute EC law but rather are international agreements, which do however belong to the acquis communautaire in so far as they are within the scope of the Treaty.124 As regards their legally binding force, much will depend on the circumstances of the case and the actual contents of an agreement or convention.125 In any case, they may not detract from Community law.126

2.6.2

Case Law

The case law of the Court is not always considered a separate source of EC law either. Thus it is argued that solely acting in violation of the case law of the ECJ does not entail any consequences (except when a judgment is not complied with by the parties involved in the case). From a formal point of view, one may indeed say that the Court’s role is limited to the application and interpretation of written and unwritten law and that therefore its case law cannot in itself constitute a source of law; the case law depends on other sources of law, such as the EC Treaty and acts adopted by the institutions.127 Yet, others have in fact considered it to be a separate source of law,128 and from a substantive point of view this can indeed be defended. For in the performance of its task, the Court makes a major contribution to the development of Community law itself by developing new principles or rules of law, which as such may not be found in so many words in written EC law. Moreover, the precedence effects of the Court’s judgments seem to be increasing, as it has become rather consistent practice that the Court refers to previous judgments to support its views. As such, the Court’s case law is at least an important source of law

122 Commentaire Mégret (1993), p 153. 123 De Witte (2001), pp 93–96 and 104. 124 Lenaerts and van Nuffel (1999), p 720. 125 Cf also Bernhardt (1983), p 79. 126 Kapteyn and VerLoren van Themaat (1995), p 212. 127 Cf Lenaerts and van Nuffel (1999), p 640. 128 Eg Schermers and Waelbroeck (1992), pp 94–97.

Sources of EC Law and EC Legislation

59

in the sense of ‘where the law can be found’, which is not to say that the Court may never reverse a previous judgment.129

2.7

CONCLUSIONS

In this chapter the most important sources of EC law have been reviewed, and classified into primary, secondary and tertiary sources on the basis of their legally binding force and precedence of one source over the other. Firstly, this has enabled an initial orientation on soft law instruments in relation to Community hard law, legislation in particular. Because of their lack of (inherent) legally binding force, it is clear that soft law instruments are in principle at the bottom of the hierarchy. Secondly, this review has shown how the concept of legislation is approached and understood in the Community context, what its main characteristics and legislative instruments are (regulations and directives), and what different functions these instruments fulfil in the Community legal system. Thereby, part of the frame of reference has been established for the examination to be conducted in Parts II and III of the extent to which Community soft law instruments can actually function as an alternative to legislation. Thirdly, it has emerged that the system of sources as established in Article 249 EC is incomplete and has certain defects. It does not provide for a specific administrative or implementing instrument (as opposed to framework, legislative instruments), nor for an ‘internal’ legal instrument. Moreover, various Treaty provisions refer to instruments — eg programmes, guidelines — which are also not provided for in Article 249. This situation in itself explains to some extent the necessity and emergence of other instruments, including tertiary ones. At the same time, it raises the question of what changes to Article 249 EC might be desirable to overcome these defects. This question will be kept in mind in the following chapters and I will come back to it in the final conclusions.

129 Edward

and Lane (1995), p 54. Cf for instance Joined cases C–267/91 and 268/91 Keck and Mithouard [1993] ECR I–6097 as regards the interpretation of (now) Article 28 EC.

3 Guiding Principles for Legislation 3.1

INTRODUCTION

H

AVING LOOKED AT the different sources and legislative instruments of EC law and the problems occurring in respect of EC legislation, I will now look in more detail at the other question identified in Section 2.1: what principles or requirements have to be complied with in the adoption of Community legislation? This question is of a dual nature. Firstly, what principles determine when the Community may act and, secondly, what principles determine how the Community may act? Article 5 EC, as it reads since the entry into force of the TEU, forms an important starting point for this discussion. The principles of conferred powers and subsidiarity, contained respectively in the first and second paragraphs of this provision, provide the answer to the ‘when’ question. In particular, the principle of conferred powers determines whether there exists a competence for the EC to act in abstracto, while the principle of subsidiarity determines whether the EC may make use of its powers in concreto. The principle of proportionality, contained in the third paragraph, provides a first important answer to the ‘how’ question. When it has been established that the EC is competent and may indeed exercise its power in a given instance,1 this principle provides a guideline for the form and intensity of the exercise of this power. As such, it can be characterised as a principle of good governance. There are yet other good governance principles that must also be complied with in the exercise of Community competence. These are principles such as legal certainty, equality and the requirement of effectiveness, and also more procedural ones, such as the principles of giving reasons, publication, notification and accessibility. The principle of legal certainty

1 Although

one could make a distinction between ‘powers’ and ‘competence’, the latter notion containing an aspect of transferral or regulation of powers through law, I will use these notions interchangeably. Cf Lenaerts and van Ypersele (1994), pp 7–8 and Pescatore (1972), p 32.

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and the more procedural principles can be brought together under the heading of transparency.2 In this chapter, consideration will be given in particular to what requirements the aforementioned principles actually impose as regards the adoption and use of Community legislation. The application of these principles does not constitute an end in itself. What is at issue is in fact the implications of the commitment of the EU, including the EC, to democracy and the rule of law; these principles are supposed to contribute to its democratic nature and ensure compliance with the rule of law. They will be discussed from this angle and linked with the aim of enhancing the legitimacy, effectiveness and transparency of Community action. In fact, the introduction of the subsidiarity principle and the proportionality principle in the EC Treaty can be seen in the light of this aim.3 Many principles can be brought under the heading of legitimacy. Legitimacy is often understood solely in the sense of democratic legitimacy, referring then in particular to the influence of representatives of the people on the decision-making process, but it seems appropriate to give it a broader meaning so as to also encompass rule of law requirements (Section 3.2). The principles that guide Community legislation as a result of the EC being based on democracy and the rule of law will be considered next, starting with the democratic legitimacy requirement (Section 3.3). Then, as constituting rule of law requirements, the principles of conferred powers (Section 3.4), subsidiarity (Section 3.5) and good governance (Section 3.6) will be discussed. Finally, in Section 3.7 some conclusions will be drawn. The main question arising in the framework of this study, then, is whether or to what extent these principles also guide or should guide the adoption and use of soft law. Or, what possible threats or contributions does the use of soft law entail for democracy and the rule of law in the Community law context? The specific questions arising from the use of Community soft law in relation to the guiding principles will be identified where appropriate. As such, this chapter will then provide the background against which Parts II and III of the study will be enacted. More particularly, the guiding principles for legislation as identified in this chapter will provide the standards for the assessment or appraisal of the soft law instruments proposed by the EC institutions as alternatives to legislation.

2 To

a certain extent, these good governance principles can also be said to be quality requirements for legislation. Cf Bracke (1996) on this. 3 Cf also Kapteyn (1993), p 48.

Guiding Principles for Legislation 63 3.2

A BROAD CONCEPTION OF LEGITIMACY: DEMOCRACY AND RULE OF LAW

What does it mean that the EC wants to enhance the legitimacy of its actions?4 In general, it can be held that the existence and exercise of power must be acceptable to citizens in order to be legitimate. This acceptance entails that citizens have the belief that this (exercise of) power is fair,5 and not induced by for instance fear. From many Community documents it appears in this respect that democratic organisation and exercise of power is considered to be the basis for this acceptability and hence for the legitimacy of the EC.6 So, to begin with, legitimacy is understood in the sense of democratic legitimacy or rather of democratic legitimation of the Community decision-making process, which is often said to be weak because of the democratic deficit. That is, the citizen has only limited influence and control on the Community decision-making process, because of the (still) limited powers of the EP. Enhancing legitimacy is therefore primarily understood as an effort to increase the citizen’s influence, control and participation in this process and, more generally, to bring the Union closer to the citizen. Such an understanding of the legitimacy of Community action has not been obvious and has evolved only gradually. Although the founding fathers of the E(E)C Treaty did provide for a parliamentary body in the institutional structure of the E(E)C, they awarded it only consultative powers. Yet, the Court’s early establishment of the supranational nature of the E(E)C, involving the transferral of national sovereignty to the E(E)C, and the recognition of the precedence of Community law over national law, made it in fact unavoidable to build more democratic guarantees into the decision-making process.7 Naturally, when the national legal orders represented in the EC are democratic systems in which the national parliaments have an important role to play, parliamentary powers at the EC level should also be considerable, in order for the Community legal system to be acceptable to the European citizen. Although democratic organisation of power certainly facilitates the acceptance of power and the exercise thereof, such a narrow and formal conception of legitimacy, as it has been described by some,8 is not sufficient. As Weiler has put it,

4 As this study is limited to the EC, I will not refer to the EU as a whole, although some but not all of the observations in this chapter will also apply to the EU. 5 Pescatore (1974), pp 505–6. Cf also Burkens et al (2001), p 9 and Gribnau (2001), p 15. 6 See the discussion in Section 1.5 and the documents mentioned there. 7 Cf also Pescatore (1974), pp 501–2. 8 Cf Pescatore (1974), p 507, Weiler (1991), Fernández Esteban (1999).

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Lawmaking in EC Law whilst the existence of democratic structures surely influences the legitimacy of governance structure they do not guarantee it.9

In western societies, and hence in the legal orders of the Member States, acceptability of state power and the exercise thereof relies on the rule of law as well.10 General principles of law forming part of the rule of law can to some extent be seen as a bridge to or legal counterpart of the norms and values of society.11 So, secondly, legitimacy of EC action further requires that it be based on the rule of law. That the EC is a Rechtsgemeinschaft and committed to the rule of law is expressed in Article 220 EC, which makes clear that the Court of Justice has to ensure that in the interpretation and application of the EC Treaty ‘the law is observed’. The essence of a state being based on the rule of law is that government action is bound by the law. This can be said to require on the one hand governing sub lege and, on the other, governing per lege.12 Governing sub lege does not only mean governing on the basis of the law, ie that there is a competence conferring legal basis (principle of legality). It also means governing within the boundaries of the law, that is in conformity with certain principles on which a constitutional state is based and which indicate the limits to the powers to be exercised, with a view to ensuring freedom and liberty of citizens. Governing per lege means that power should be exercised through the adoption of laws, in particular with a view to ensuring legal certainty and equality. The principle of conferred powers, long established in EC law, will turn out to be of major importance as regards the governing of the EC sub lege, as it functions in particular as the Community principles of legality, of internal and external division of powers and of legal protection. As such, this principle reflects the classical, rather formal and procedural, conception of the rule of law, emphasising the limitation and control of state power through the operation of the principles of legality, division of powers and judicial control. In this conception, legitimacy of government action is put on a par with the legality thereof. The instrumental function of the legal basis requirement going along with the Community principle of legality will also be found to reflect to a certain extent the governing per lege in the Community context, where the legal basis prescribes the adoption of for instance a regulation or directive. In the national legal contexts, there has been a shift from the classical (liberal) conception of the rule of law to a more democratic and social

9 Weiler (1991), p 415. 10 Burkens et al (2001), p 9. 11 See Gribnau (2001), pp 15–16, 12 Gribnau (2001), p 16.

for this comparison.

Guiding Principles for Legislation 65 conception, in which the (active) realisation and protection of general principles of law and fundamental rights have increasingly gained attention. Clearly, this shift has also had repercussions for the European legal context and in this respect various authors have spoken of ensuring social legitimacy,13 of legitimacy granted by the rule of law14 and substantive legitimacy.15 Thus, Pescatore asserts that true legitimacy, that is substantive legitimacy, ensues from an adequate performance of the functions of government; legitimate power is understood to be the power that responds best to the expectations and needs of the public and that is capable of resolving the problems affecting it; in short, that is best for the general interest. I also understand legitimacy in this broad way. It is the supranational nature of the EC and the precedence of EC law that have exerted most pressure for the recognition of general principles of law at the EC level. As was noted in Chapter 2, it has mostly been the Court that has established general principles of law, including the protection of fundamental rights, as being part of ‘the law’ that it has to take into account.16 Article 6 TEU, read in conjunction with Article 1 TEU, also in fact reflects this development and in particular the shift to a more democratic and social conception of the rule of law. Or, these provisions make clear that for Community action to be legitimate, it must not only come about in a democratic way but should also comply with general principles of law, in particular ensuring respect for and realisation of fundamental rights and freedoms of citizens. The fairly recent Charter of Fundamental Rights of the European Union, although (as yet) not legally binding, can be seen as a confirmation of this shift.17 Principles of good administration are among the general principles of law which are to be protected and complied with in the Community legal order18 and in the aforementioned Charter are considered to be a fundamental right.19 That is, its Article 41 explicitly establishes a right of good administration which, according to the explanatory text that accompanies it, is derived from the Court’s case law.20 I myself, however, prefer to

13 Weiler (1991), pp 415–416. 14 Fernández Esteban (1999), pp 180–81. 15 Pescatore (1974), p 507. 16 This commitment was also recognised

in the Joint Declaration by the European Parliament, the Council and the Commission concerning the protection of fundamental rights and the ECHR, OJ 1977, C 103/1 and the Declaration on democracy of the European Council of Copenhagen, Bull EC 3–1978, p 5. 17 Cf also paragraph 5 of the Declaration on the Future of the Union, attached to the Treaty of Nice, which places the status of this Charter on the agenda (Declaration 23). 18 Cf Barents and Brinkhorst (2001), p 65. See further on these principles Section 3.6 and Subsection 10.3.2. 19 Hirsch Ballin (2000), pp 305–8. 20 Cf Hirsch Ballin (2000), pp 307–8.

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speak of principles of good governance in this regard.21 This then refers not only to principles that the administration should respect in exercising its powers but also to the principles with which the legislature should comply in its exercise of powers,22 which is not to say that the scope of these principles is the same for the administration and the legislature.

3.3

3.3.1

DEMOCRATIC LEGITIMACY REQUIREMENT

Formal Democratic Legitimation of the Decision-Making Process

The narrow conception of legitimacy, ie that of democratic legitimation of the decision-making process, presupposes that legislation is adopted in conformity with democratic procedures, involving the citizens in the decision-making process. Western democracies can be said to share the convictions that this entails at least eligibility and the right to vote for representative institutions, that these institutions have an influence on the decision-making process through power of (co-)decision and/or retrospective monitoring of this process, and that there is openness of the decision-making process and of the decisions taken. These can be seen as minimum requirements for the democratic legitimacy of power and the exercise thereof.23 Initially these requirements were not met by the E(E)C, as the European Parliament had only been endowed with powers of consultation and very limited monitoring powers. Furthermore, it consisted of representatives of the national parliaments and not of directly elected members of the European Parliament (MEPs). In response to the increasing criticism of this democratic deficit of the E(E)C, the formal democratic representation in and through the EP has gradually been strengthened and improved. Firstly, the direct election of MEPs was established by decision of 20 September 1976.24 Secondly, the EP was given powers of cooperation

21 Cf

also van Gerven (1983), who speaks of ‘beginselen van behoorlijk handelen’(principles of good action — my translation). Cf in a similar sense Jans et al (1999), p 149. also the Commission’s definition of governance in its White Paper on European Governance, which makes no distinction regarding the branch of government: ‘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. COM(2001)428, p 8. 23 Burkens et al (2001), p 196. 24 Decision of the representatives of the Member States meeting in the Council relating to the Act concerning the election of the representatives of the Assembly by direct universal 22 Cf

Guiding Principles for Legislation 67 (by the SEA) and co-decision (by the TEU) in the decision-making process, depending on the area at issue. The co-decision procedure entails veto rights that enable the EP to block the adoption of legislation. This procedure has been declared applicable in an increasing number of areas. Thirdly, monitoring powers of the EP have improved inter alia as a result of its assent being required as regards the appointment of the new Commission, its power to appoint an Ombudsman (Article 195 EC) and its right of inquiry (Article 193 EC). Finally, the Court has contributed to the democratic nature of the EC by strengthening the legal position of the EP, for instance by establishing its locus standi under (now) Article 230 EC.25 A certain degree of democratic legitimacy is also realised in a more indirect formal way, through the national parliaments’ control of their governments (represented in the Council) and through their ratification of EC Treaty amendment treaties.26 Other (limited) forms of participation of European citizens in the EC decision-making process occur as well, for instance through the consultation powers of the Economic and Social Committee and the Committee of the Regions. As regards the openness of the decision-making process, it is also clear that positive changes have taken place and that transparency of this process and of decisions has been put on the Community agenda, and that access to information has improved.27 This issue is dealt with separately in Subsection 3.6.3.1. Although the EP’s decision-making powers are not yet of the same order as those of most national parliaments,28 although the European citizen still feels very alienated from the Union, and although the openness of decision-making and decisions may not yet be sufficient, it is thus clear that over the years the democratic legitimacy of the EC decision-making process has improved and provides at least for certain democratic guarantees.

suffrage, OJ 1976, L 278/1. Cf also the Declaration on democracy of the European Council of Copenhagen, stressing the importance of direct universal suffrage for representative democracy, Bull EC 3–1978. 25 Case C–70/88 EP v Council (Chernobyl) [1990] ECR I–2041. Cf Hartley (1998) on this case, pp 79, 349, 382–83. See also below Subsections 3.4.4. 26 Cf also paragraph 5 of the Declaration on the Future of the Union, attached to the Treaty of Nice, in which the role of the national parliaments in the European constellation was placed on the agenda (Declaration 23). 27 Cf also Piris (1998), pp 31–34. 28 For instance because it lacks the power of initiative (by virtue of Article 192 EC it can only request the Commission to submit a proposal); it cannot bring about the adoption of a legislative act against the will of the Council even in the case of co-decision; and in certain cases its power is still limited to consultation or cooperation.

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3.3.2

Questions Arising in Relation to Soft Law

The question that then arises in the context of this study, is to what extent the use of soft law is detrimental to or in fact contributes to democratic legitimacy, that is to the influence of — representatives of — the citizens on the decision-making process. In particular, one might wonder whether consultation, cooperation or co-decision of the EP could also be called for when soft law acts are adopted by the Council or the Commission. This question arises in particular in cases where the EC Treaty provides for the adoption of a Commission or Council recommendation or leaves open the choice of the instrument, and at the same time prescribes a particular decision-making procedure.29 Illustrative of this question is the following quotation from the EP Resolution relating to the Commission Communication on certain legal aspects concerning intra-EU investment (Golden Share): the content of the above-mentioned communication cannot be seen as binding, since the Commission clearly overstretched its powers by not discussing this important item of ‘soft law’ with the Council and the European Parliament.30

Another question that might be asked in this respect is to what extent democratic legitimation of the decision-making process can come about through increased participation of the citizen in the process of policy preparation and (executive) lawmaking or through the provision of more legal, procedural guarantees in this process.31 Or, to what extent can democratic legitimation of the decision-making process also come about in an informal way, through the use of soft law instruments?

3.4

RULE OF LAW REQUIREMENT: THE PRINCIPLE OF CONFERRED POWERS

Starting from the broad conception of legitimacy, encompassing not only democratic legitimation of the decision-making process but also substantive legitimacy, I will now turn to the concrete rule of law requirements imposed by this conception. This discussion will begin with the principle

29 Eg

Article 175(3) EC prescribes the adoption of general action programmes according to the co-decision procedure of Article 251 EC. As will be seen in Subsection 5.2.1.3, action programmes are not always laid down in a legally binding instrument. 30 European Parliament resolution on the updating of certain legal aspects concerning intraEU investment, minutes of 05/04/2001–Provisional Edition. See on the Golden Share Communication also Subsection 5.3.2 and Section 9.4. 31 Burkens et al (2001), p 253.

Guiding Principles for Legislation 69 of conferred powers, which is a crucial principle of Community law for determining when the EC is competent to act. As such, the principle of conferred powers fulfils different functions, which will be addressed in turn: legality, legal protection, external and internal division of powers and democracy.32 3.4.1

Principle of Legality and Instrumental Function of the Legal Basis Requirement

Articles 2 and 3 EC, listing the wide and ambitious Community objectives and the means to achieve these, might tempt one to think that the EC is entitled to take any measure whatsoever in order to realise its objectives. That this is not the case is made clear by Article 5 EC first paragraph: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein (emphasis added).

Clearly, the EC’s competence to act is not a general one but is rather restricted to specific purposes; it may only act with a view to realising the EC objectives, if and in so far as powers have been conferred upon it by Treaty provisions. This is consequently known as the principle of conferred or attributed powers. That this principle applies in EC law was already a widely accepted view before its insertion in Article 5 by the TEU;33 it could be deduced from Article 3 EC, which states, ‘the activities of the Community shall include, as provided in this Treaty […]’. Similar terms were (and still are) contained in Article 189 (now 249) EC, which states that ‘In order to carry out their task and in accordance with the provisions of this Treaty, [ … ]’ regulations, directives, decisions, recommendations and opinions may be adopted. This Article thus provides a catalogue of Community instruments, but not for a general competence to adopt them. The principle of conferred powers has also been read into (now) Article 7 EC, which provides that: Each institution shall act within the limits of the powers conferred upon it by this Treaty (emphasis added).

From the foregoing, it can be deduced firstly that the principle of conferred powers functions as the principle of legality, meaning that

32 Krausser (1991), Triantafyllou 33 Cf Pescatore (1972), pp 32–33.

(1997), pp 40–58.

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Community action requires a legal foundation in the Treaty and in particular that no legally binding rights and obligations are created and imposed without there being such a foundation. Or, the principle of conferred powers entails that at least all legally binding action of the EC institutions has to have a legal basis in the Treaty, either directly or indirectly in the case of delegation.34 Since there is neither a general Community competence to act nor a general list of EC competences,35 Community competences have to be inferred from individual Treaty provisions, providing as such a legal basis for the EC’s competence to act in a particular case. A provision indicating the competence that has been conferred, in particular the objective, nature and scope of the action to be taken by a specified institution, must necessarily be present in the Treaty and identified in the act. So, the legal basis indicates, to a greater or lesser extent, (the limits of) the competences conferred upon the EC. The principle of legality thus goes hand in hand with the legal basis requirement,36 and this in its instrumental function. That is to say, the legal basis enables the identification of the required establishment of the Community competence. 37 Two main categories of legal basis provisions can be identified: provisions constituting a specific legal basis and provisions constituting a general legal basis.38 The first category of provisions relate to a particular area of economic and social life, such as the freedom of movement of persons, agriculture, the environment or social policy. Sometimes they are quite highly defined as regards the nature and scope of the conferred powers. According to Article 137 EC, for instance, the EC may adopt minimum requirements regarding the protection of the health and safety of workers. This kind of legal basis has grown substantially as a result of the various Treaty amendments.39 However, the specific legal basis may also be less defined as to the limits of the conferred powers. This is the case in particular in those areas in which a common EC policy is envisaged, such as agriculture, commercial policy and transport, where the conferred powers are established more in terms of objectives. Article 34 second

34 See also Subsection 6.5.4. 35 Debate on the necessity or

desirability of such a list occurs with some regularity, most recently in the context of the Commission’s White Paper on European Governance, the European Council of Laeken and the European Convention. See also the Report of the European Parliament on the division of competences between the European Union and the Member States (Report Lamassoure), A5–0133/2002, adopted on 24 April 2002. 36 Cf also Jans et al (1999), p 103. 37 Barents and Brinkhorst (2001), p 129, Barents (1993), p 88. 38 Cf Dashwood (1996), p 120. 39 Cf Articles 149(4) on education, 150(4) on vocational training and 151(5) EC on culture, which explicitly exclude harmonisation. See also Dehousse (1992) (a), p 200. This has gone to the extent of almost turning the Treaty into a traité-loi, according to Geelhoed (2001), p 367.

Guiding Principles for Legislation 71 paragraph EC thus provides that the establishment of common market organisations has to take place in accordance with the objectives of the common agricultural policy as laid down in Article 33 EC. The second category of provisions, providing a general legal basis for the EC to act, consists in particular of Articles 94 (ex 100), 95 (ex 100a) and 308 (ex 235) EC. The scope of these provisions is much broader, as they may constitute a legal basis for measures aiming at the establishment of the common market. Yet, their nature and scope differ in terms of applicable decision-making procedure (consultation versus co-decision, unanimity versus qualified majority), instrument (directives versus measures) and the way in which the internal market is affected (directly or not). Article 308 functions as a legal basis of last resort: if no specific or general legal basis confers the necessary powers upon the EC, or where these prove to be insufficient, then this provision may serve as a legal basis. Its purpose, however, has never been to provide for a general Community competence but only to fill in possible lacunae of the EC Treaty resulting from the impossibility to foresee all the necessary measures (and legal bases) required to realise the objectives of the Treaty.40 The European legislature has made ample use — and sometimes in a rather creative way, according to some41 — of the specific and general legal bases of the EC Treaty. Legislation concerning the equal treatment of men and women, the environment, regional and social policy, R&D and monetary policy, for instance, was adopted on the basis of (now) Articles 94, 95 and 308 EC before specific legal bases regarding those areas were introduced into the Treaty or into the Social Protocol annexed thereto.42 The ECJ has also played a fundamental role in defining, and in fact stretching, the limits of the powers of the EC. It has done so firstly by developing the doctrine of implied powers, according to which a Treaty provision explicitly conferring a certain power on the Community also encompasses the tacit, implied power without which the explicit competence cannot be fully exercised. According to the narrow interpretation of this doctrine, the existence of a power also implies the existence of any other power reasonably necessary for the exercise thereof.43 According to the broad interpretation, it is the existence of a given objective or function that implies the existence of any power reasonably necessary to attain it.44 Whether the Court has also accepted the broad interpretation is not undisputed.45 40 See Lauwaars and Timmermans (1999), pp 71–72. 41 Cf Dashwood (1996), p 123. 42 The Member States actually pleaded for a wide interpretation

of (now) Article 308 at the First Paris Summit in October 1972. 43 Adopted by the Court as early as Case 8/55 Fédéchar [1956] ECR 245. Cf also Case 165/87 Commission v Council [1988] ECR 5545, para 8. 44 Hartley (1998), pp 102–3. 45 According to Kapteyn and VerLoren van Themaat (1995), p 151, and Lauwaars and Timmermans (1999), p 72, Article 308 excludes the broad interpretation, and according to

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Besides the doctrine of implied powers, the notion of effet utile or effectiveness, also developed by the Court of Justice, has played an important role in this respect, as it entails an interpretation of the competence conferring provisions of the EC Treaty such that these have the biggest possible effect.46 Or, the powers conferred upon the EC must be given full effect to realise the objectives of the EC Treaty, even if this means extending them to matters for which no specific competence exists.47 As such, the concept of implied powers and the broad use and interpretation of the conferred competences by both the European legislature and the Court could in fact be seen as expressions of the notion of effet utile.48

3.4.2

Principle of Legal Protection and Guarantee Function of the Legal Basis Requirement

A second function of the principle of conferred powers, which actually flows from the preceding subsection, is that of legal protection. 49 As observed, the legal basis upon which an EC legislative act is based indicates to a large extent the boundaries within which the Community may exercise its competence. In particular, it indicates the subject that may be regulated and the scope thereof, the decision-making procedure (consultation, cooperation or co-decision), the nature, form and intensity of Community action (regulation, directive or otherwise, binding or non-binding, harmonisation or common policy) and the competent institution. So, identification of the legal basis serves not only the goal of establishing the existence of a competence, but also that of enabling the assessment of whether this competence has been exercised in conformity with the powers actually conferred upon the EC. This has been referred to as the guarantee function of the legal basis requirement, as it enables this assessment by the Court and thus provides for legal protection against unlawful exercise of competence by the EC and its institutions.50 For instance, in the event that the requirement of consultation of the EP, such as provided Dashwood (1996), p 124, the broad interpretation is incompatible with the principle of conferred powers. Referring to the judgment in Joined cases 281, 283–85, 287/85 Germany & Others v Commission [1987] ECR 3203, both Hartley (1998), p 103, and Craig and de Búrca (1998), pp 111–12, argue that the Court is willing to embrace the broad interpretation. 46 Cf the aforementioned early Case 8/55 Fédéchar [1956] ECR 245 and eg Case 14/68 Walt Wilhelm [1969] ECR 1. Further also van Gerven (1992), p 1242, and Brinkhorst (1992), p 7. 47 See Koopmans (1994) (b), p 48. 48 Cf in this sense also Kapteyn and VerLoren van Themaat (1995), p 151. 49 See also Subsections 3.4.3 and 3.4.4 below. 50 Barents and Brinkhorst (2001), p 128, and Mackenzie Stuart (1977). Cf also Crosby (1991), p 451, and Piris (1998), p 25.

Guiding Principles for Legislation 73 for by Article 67 EC concerning visa, asylum and immigration measures, is not complied with, measures adopted on this basis are liable to annulment under Article 230 EC for infringement of the Treaty. During the last decade, the guarantee function of the legal basis requirement has come increasingly to the fore, as since the introduction of the cooperation and co-decision procedures the choice of the legal basis has become a knotty affair. Quite logically, the institutions are often inclined to plead for adoption of an act on the legal basis that gives them most influence in the decision-making process.51 More decision-making by qualified majority has also contributed to these legal basis fights, as Member States which have been overruled in the Council have also argued before the Court that the wrong legal basis was chosen.52 At the same time, the choice of the correct legal basis has become increasingly difficult because more (specific) competences have been conferred upon the EC in areas which hitherto were excluded from the scope of the Treaty or which were dealt with only on the basis of one of the general legal bases. Hence, the demarcation of the different legal bases is not always obvious.53 The correct choice of legal basis is a precondition for the lawfulness of an act and an incorrect choice may also give cause for annulment under the Article 230 procedure. It is standard case law that the choice of legal basis ‘must be based on objective factors which are amenable to judicial review’.54 These factors are notably the aim and the contents of the measure, but the subjective views of the institutions on these are irrelevant.

3.4.3

External Division of Powers: Competence to Act in Abstracto

A third important function of the principle of conferred powers lies in the demarcation of Community competences from those of the Member States. This can be considered already implied in the Court’s judgment in the Costa v ENEL Case, in which it held that the powers of the Community stem from ‘a limitation of sovereignty or transfer of powers from the

51 See

on the political dimension of the choice of legal basis also Barents and Brinkhorst (2001), pp 129–31. 52 See eg Case C–84/94 UK v Council [1996 ] ECR I–5755 and Ellis (1997) on this case. Individuals now also seem to have discovered the possibility of arguing in proceedings before the national court that a Community act is invalid for being founded on the wrong legal basis, as a result of which preliminary questions are put to the ECJ. Cf Case C–491/01 British American Tobacco Investments and Imperial Tobacco [2002] ECR I-11453. 53 See Case 300/89 Commission v Council (Titanium Dioxide) [1991] ECR I–2867, where the conflict concerned the choice between Article 100a (now 95) EC and Article 130S (now 175) EC. See also Barents (1993), p 94 ff. 54 Case 300/89 Commission v Council (Titanium Dioxide) [1991] ECR I–2867, para 10.

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States to the Community’ whereby the Member States ‘have limited their sovereign rights albeit within limited fields’.55 Obviously, the Member States did not wish to give carte blanche to the Community, but only transferred those powers that can be established on the basis of the EC Treaty. So, the principle of conferred powers also provides an answer to the question of ‘when the Community is competent to act’ vis-a-vis the Member States. This function of the principle of conferred powers is also now more explicit in the EC Treaty itself, in the first paragraph of Article 5. The Member States evidently deemed it necessary to insert a new clause in the Treaty alongside Article 7, which suggests that the principle fulfils a different function in the context of Article 5 than in the context of Article 7. By referring in the first paragraph to ‘The Community’ as a whole, the emphasis is placed on when the EC as such is allowed to act. That this must be considered to relate in particular to the external or vertical division of competences56 between the EC and the Member States can also be derived from the fact that it precedes the subsidiarity principle, which is laid down in the next paragraph of Article 5. Obviously, these principles are closely connected, but they are not identical.57 The principle of conferred powers thus marks the first step, in the sense of determining the competence of the EC to act in abstracto; if no powers have been conferred upon the EC, the competences remain with the Member States. The principle of subsidiarity marks the second step, as it determines whether, if there is indeed a Community competence, this competence may be exercised in concreto, ie in a given instance, or whether the appropriate level remains the national one. This principle will be further discussed in Section 3.5.

3.4.4

Internal Division of Powers: Institutional Balance and Loyal Cooperation

The aforementioned Article 7 first paragraph expresses in fact a fourth function of the principle of conferred powers; by referring to ‘Each institution’ and not to ‘The Community’, this provision underlines more the

55 Case 6/64 Costa v ENEL [1964] ECR 614. 56 Triantafyllou (1997), pp 40–52, speaks of

vertical and horizontal separation of powers in this respect. In the present context, however, I prefer to speak of external and internal division of powers, to emphasise that what is at issue is respectively when the Community may act vis-a-vis the Member States and when the Community institutions may act vis-a-vis each other. 57 In the Edinburgh Conclusions Article 3B (now 5) EC was said to cover three distinct legal concepts which have historical antecedents in the existing Community Treaties or in the case law of the Court of Justice, Bull EC 12–1992, p 13. Cf also Dehousse (1995), p 36.

Guiding Principles for Legislation 75 inter-institutional relations and in particular the existence and the respect of the internal division of powers between the EC institutions.58 Like the national legal systems represented in the EC, the Community legal system is also based on the trias-politica or separation of powers doctrine and is divided into the legislative, executive and judicial functions, with a view to preventing too great a concentration of power in the hands of one institution. Yet, these powers are divided in a different way than in the national legal systems and the dividing lines between for instance the legislature and the executive are not very clear-cut. As such, the Community structure has been characterised as a quadripartite structure,59 meaning that the three functions are in fact divided over four institutions: the Council of Ministers, the European Parliament, the European Commission and the Community courts (ECJ and CFI). This structure can be explained by the fact that although the EC can to a large extent be characterised as a supranational organisation, it still has intergovernmental features. The Council of Ministers thus represents the interests of the Member States, whereas the European Commission has to act independently of the Member States and in the general interest of the EC.60 In the EC Treaty a certain balance has been struck between the tasks and competences of the institutions. In the decision-making process the Commission has thus been given the right of initiating legislation and also delegated decision-making powers; the EP has consultation, cooperation or co-decision power, depending on the applicable decision-making procedure; the Council has been attributed the power of decision; and obviously the Community courts perform the role of judiciary and as such monitor the lawfulness of the decisions taken. Any changes in this internal division of powers will have consequences for the institutional balance. According to the case law of the Court, the notion of institutional balance refers to the system of distribution of powers among the Community institutions, as this has been set up by the Treaty, assigning to each of them its own powers and role in the institutional structure of the Community and the accomplishment of the tasks entrusted to it.61 Observance of the institutional balance entails that each institution exercises its powers with due regard for the powers of the other institutions

58 Prechal

(1998), pp 276–77, links the notion of institutional balance also to (ex) Article 4. Cf also Gormley (1998), p 29. 59 Barents and Brinkhorst (2001), p 110. 60 See respectively Articles 203 and 213 EC second paragraph. 61 The notion of institutional balance can be considered already implied in (now) Article 7(1) EC and thus it should be considered more a guiding principle for interpretation than a selfstanding principle, as Prechal (1998), pp 275–278, also argues. Cf also de Witte (2000) (b), p 34, who considers in more general terms that in most cases the institutional principles have been attributed (only) an interpretative or supplementing role.

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and that breaches of this rule can be penalised.62 That each Community institution thus has its own, defined competences in the decision-making process, which have to be respected by the other institutions, does not mean that these are invariable. Institutional balance is a dynamic notion that may change over time, to be decided upon by Treaty amendment. For instance, as a result of the introduction of the co-decision procedure by the TEU, the position of the EP can be considered to have been reinforced to the detriment of the Commission’s right of legislative initiative.63 The foregoing has already made clear that the role of the EP in the decision-making process is not a general or fixed one, but depends on the decision-making procedure declared applicable in the legal basis upon which the Commission puts forward a proposal. The legal basis and procedure also determine the way in which the Council makes decisions, by unanimity or qualified majority, and under what conditions deviation from the Commission proposal is possible. So, the Commission’s position too is affected by the choice of legal basis. In short, the legal basis determines the actual role of the different EC institutions in the Community legislative process. As such, the principle of conferred powers functions as an internal division of powers principle — presupposing institutional balance — that has been concretised in the separate Treaty provisions. The notion of institutional balance can also be linked to the principle of Community loyalty or Gemeinschaftstreue in Article 10 EC, as this is being interpreted today. On the basis of its very wording, this provision originally seemed confined to establishing this principle as regards the Member States in their behaviour towards the Community and its institutions. It reads: Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Commission’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.

This principle has, however, witnessed a very interesting evolution in the case law of the Court, as a result of which its personal scope64 has become

62 Connected

with the latter aspect is that the Court must be able to maintain and monitor the application of the Treaty provisions concerning the institutional balance. These criteria can be inferred in particular from Case C–70/88 EP v Council (Chernobyl) [1990] ECR I–2041, paras 21–25. 63 Since under that procedure deviation from the Commission’s proposal is quite easy in the case of agreement of the Council and the EP, as the Council then decides by qualified majority. 64 As regards its substantive interpretation, see Subsection 3.6.2 below.

Guiding Principles for Legislation 77 very broad.65 Not only does the principle apply to all State functions and every level of government (legislative, executive and judicial), but it now also entails a mutual duty of loyal cooperation between the Member States and the Community institutions,66 between the Member States and their institutions, and between the Community institutions inter se.67 It has thus become clear that cooperation between the Community institutions and inter-institutional dialogue, as contained inter alia in the consultation procedure,68 are subject to the same mutual duties of sincere cooperation as relations between the Member States and the Community institutions.69 A declaration attached to the Nice Treaty explicitly confirmed that the duty of sincere cooperation ‘also governs relations between the Community institutions themselves’.70 As Van Gerven has observed, the application of this duty cannot change the institutional balance, but on the contrary entails that all EU actors must exercise their powers by taking into account the legal powers and legitimate interests of the other, Community and national, actors.71 So, the principle of Community loyalty in fact reinforces the duty to maintain the institutional balance.

3.4.5

Principle of Democracy

Finally, the principle of conferred powers can also be said to fulfil to some extent a function of democracy. This is the case firstly because, according to Article 313 EC, the Treaty and its amendments must be ratified ‘by the High Contracting Parties in accordance with their respective constitutional requirements’, which in fact means that they have to be ratified by the national parliaments before they can enter into force. With a view to this, in some Member States referenda have been held with (initially at least) negative outcomes. So, in fact this means that citizens,

65 Due

(1992), pp 355–66; van Gerven and Gilliams (1990), pp 1158–73; Temple Lang (1990), pp 645–81. 66 Cf Case 44/84 Hurd [1986] ECR 29, para 38 and Case C–2/88 Zwartveld [1990] ECR I–3365. See also Jans et al (2002), pp 70–71. 67 Cf Case C–65/93 EP v Council [1995] ECR I–643. 68 Cf also Case C–392/95 EP v Council [1997] ECR I–3213, para 14, in which the Court made clear that effective participation of the EP in the legislative process in accordance with the procedures laid down by the Treaty, ‘represents an essential factor in the institutional balance intended by the Treaty’. 69 See Case 230/81 Luxembourg v EP [1983] ECR 255; Case 204/86 Greece v Council [1988] ECR 5323; Case C–65/93 EP v Council [1995] ECR I–643, para 23. Cf also the Conclusions of the FIDE Conference (2000). 70 See also Subsections 6.7.2 and 7.3.2 on this Declaration on Article 10 of the Treaty establishing the European Community. 71 Van Gerven (2000).

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through parliamentary or direct participation, have to approve any transferral of powers to the EC.72 However, this approval sometimes seems to be rather formal and it is not always discussed in depth in national parliaments.73 Furthermore, it can be emphasised here that the foregoing subsections have made clear that the legal basis provisions of the Treaty indicate on each occasion the powers of the EP. As such, they too provide for the democratic contribution to the decision-making process.

3.4.6

Questions Arising in Relation to Soft Law

The principle of conferred powers in its function of principle of legality ensures that the adoption of legislation occurs on the basis of the law, ie on the basis of a legal foundation in the EC Treaty, and occurs within the limits of this legal foundation. As such, it ensures compliance with the internal and external division of powers. The legal basis requirement thus fulfils not only an instrumental function but also a guarantee function, providing as it does for the possibility of monitoring whether the exercise of the powers has remained within the boundaries of the powers actually conferred. The question that is then raised by the principle of conferred powers in the context of this study is to what extent this principle also applies to the adoption of soft law, if not in its function of principle of legality then possibly in one of its other functions. So, the question raised in particular by the principle of legality function of the principle of conferred powers is whether it also applies to government action in the form of soft law;74 or in other words, is it a rule of law requirement that Community soft law acts also require a specific or general legal basis in the Treaty or in delegated legislation? Also interesting in this respect is whether the relevance of the doctrine of implied powers is restricted to the sphere of the external competences of the EC, or applies to its internal competences as well. According to some, the latter are either so clearly defined and circumscribed that there is no room for implied powers or so broadly defined that there is no need for implied powers.75 This will be considered in more depth in Chapter 7.

72 See also Triantafyllou (1997), pp 52–54. 73 As was the case in the Netherlands as regards the ratification of the Nice Treaty. 74 According to Jans et al (1999), pp 101–103, this requirement applies to eg subsidy decisions. 75 See in this sense Lauwaars and Timmermans (1999), pp 69–70. The difference between

Article 308 and the doctrine of implied powers is that the latter ties in with the powers that have been explicitly laid down in a Treaty provision, whereas Article 308 ties in with the objectives of the EC and applies in precisely those cases where such a provision is lacking.

Guiding Principles for Legislation 79 Another question is how the use of soft law may affect the external division of powers; to what extent is soft law being used as a means to enter into spheres that are still within national competence, and with a view to progressively bringing these within Community competence? And to what extent does this use possibly encroach upon national competence, such as that of the national legislature; is it for instance obliged to take account of Community soft law in the adoption of national legislation, and on what possible ground? The question can also be posed as to how the use of soft law affects the internal division of powers; does it distort the institutional balance, being used as a means to circumvent the influence of other institutions in the ‘regular’ decision-making process (cf also the question raised in Subsection 3.3.2)? Or does soft law possibly contribute to preserving the institutional balance and loyal cooperation between the institutions?

3.5

3.5.1

RULE OF LAW REQUIREMENT: THE PRINCIPLE OF SUBSIDIARITY

External Exercise of Powers: Competence to Act in Concreto

The fact that competences have increasingly been conferred upon the EC and that they have been stretched far by both the European legislature and the Court,76 has led some authors to ask whether the principle of conferred powers (in particular in its function of external division of competences) still applies at all.77 However this may be, the conclusion is justified that the increased Community powers, the rather difficult delimitation thereof from the remaining national powers and the increasing amount of Community legislation paved the way to the introduction of the subsidiarity principle into EC law. The origins of the principle of subsidiarity are most often ascribed to Pope Pius XI, who referred to it in his Encyclical Letter Quadragesimo Anno of 1931 as a principle of social organisation, concerning the relationship between the state and society. Its aim was to ensure that the private sphere was protected from undue interference of the state.78 Views differ as to 76 Although

the conferral of new powers upon the EC has sometimes meant more an encroachment upon than an extension of its powers, inserting specific limited legal bases precluding the use of the general legal bases in certain areas. Cf for instance the Treaty provisions mentioned in note 39 above. 77 Cf Barents and Brinkhorst (2001), p 132; Steindorff (1990), p 1, and the references mentioned there. Dehousse (1994) and Crosby (1991) for instance have been critical of the stretching of EC competences. Others, such as Dashwood (1996) deem this quite exaggerated. 78 Dehousse (1992) (a), p 203; Emiliou (1992), p 385; and van Gerven (1992), p 1241. Even earlier, to Aristotle and Thomas Aquinas, as argued by Constantinesco (1991) (a), pp 442–43. Cf also Mackenzie Stuart (1991), pp 37–38.

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how far such a principle has been recognised in the national legal orders of the Member States in later years, in particular in Germany as regards the division of competence between the Bund and its Länder.79 Controversies also exist with regard to when and how the principle made its entry on the Community scene. Some, including the Commission, have argued that it has always been, more or less implicitly, present or applied in EC law,80 whereas others, such as Toth and Koopmans, have vigorously opposed this view.81 The fact is that as early as the 1970s the spirit of subsidiarity was about, as a number of policy documents reveal,82 and it was given a place in the Draft Treaty on European Union, drawn up by the European Parliament in 1984.83 The amendment of the EC Treaty by the SEA shortly thereafter included a first, implicit, expression of the subsidiarity principle in (ex) Article 130R fourth paragraph EC on the environment.84 The TEU repealed this provision, but at the same time the subsidiarity principle was introduced as a general principle of EC law in Article 5 second paragraph EC, which reads: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Although it is a quite commonly accepted view that Germany played an important part in encouraging this introduction,85 other Member States and the EC institutions also pleaded for it, albeit giving their own specific meaning to the principle. This also explains why the terms that were finally agreed upon allow for a reading to please many, making a conclusive and overall accepted view on the meaning of the principle of subsidiarity in EC law quite impossible. Not surprisingly, it has been referred to as a chameleon principle because of its capacity ‘to mean all 79 See

Emiliou (1992), pp 388–91; and Kapteyn (1993), p 43. More in general, see national FIDE reports (1994) and the Communication on subsidiarity, Bull EC 10–1992, p 118. Others, such as Geelhoed (1991), pp 427–429, and Koopmans (1994) (b), pp 43–44, have disputed that such a principle plays a role in the German legal order. 80 For instance Steiner (1994), pp 50–51. Cf also Kapteyn (1991), at pp 38–39. 81 Toth (1992), p 1079; Koopmans (1994) (b), p 50. 82 Cf the Commission Report on European Union (Tindemans Report)(1975), Bull EC, suppl 1/76, the McDougall Report, Luxemburg, (1977). 83 In its Article 12, OJ 1984, C 77/33. 84 ‘The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 can be attained better at Community level than at the level of the individual Member States.’ 85 As it was afraid that Community action would interfere too much with the powers of the Länder. See on this Constantinesco (1991) (b), p 562.

Guiding Principles for Legislation 81 things to all men’86 and having ‘a definition to suit any vision’.87 Its discussion here will focus on the demarcation between the three principles contained in Article 5 EC and the questions it evokes in relation to the use of soft law. What is clear is that in the EC law context, the subsidiarity principle concerns the relationship between the Community and the Member States, that is to say between two levels of government. As observed above, a first condition is that the EC may only adopt legislation if this is in conformity with the principle of conferred powers. The subsidiarity principle entails a subsequent condition; once the existence of a Community competence to act has been established in respect of a certain issue or area, it must be established whether this competence may be exercised in a given instance. So, contrary to what is sometimes argued,88 the subsidiarity principle does not concern the division of powers between the EC and the Member States as such, but rather provides a rule for choosing the appropriate level for exercising a power in a given instance, the level of the Member States or that of the EC.89 Or in other words, the fact that there is a Community competence in abstracto, does not mean that it may be exercised in concreto. The foregoing is not to say that considerations of subsidiarity do not play a — more or less visible — role in the Treaty amendment discussions. Expressions of the subsidiarity principle can thus be traced in the formulation of new competences conferred upon the EC by the TEU and the Treaty of Amsterdam. As regards for instance Articles 149 to 154 and 164 EC, one could say that the choice of the appropriate level has already been made to a large extent, in defining quite clearly what powers are actually conferred on the EC.90 However, as was confirmed in the Protocol on subsidiarity and proportionality attached to the EC Treaty as a result of the Treaty of Amsterdam, the principle of subsidiarity cannot call into question the powers conferred on the European Community by the Treaty as interpreted by the Court.91

So, the subsidiarity principle cannot be used to deny competences, once they have been conferred upon the EC. 86 By Steiner (1994), p 51. Cf also Emiliou (1992), at p 383. 87 Peterson (1994), p 116. 88 Cf Peterson (1994), p 121, who argues that (now) Article 5 second paragraph could be used

to justify new EC powers over foreign policy, defence and immigration. 89 See in the same sense Dehousse (1992) (a), p 207. 90 See for a similar observation, the Conclusions of the European Council of Edinburgh, Bull EC 12–1992, p 14, Kapteyn (1993), at p 45, and van Gerven (1992), p 1242. 91 Point 3 thereof. Cf also the Edinburgh Conclusions, Bull EC 12–1992, p 13.

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3.5.2

Criteria for Application

Whether or not the Community competence may be exercised in a given instance depends on three criteria, according to Article 5 second paragraph. These can be characterised as the criteria of non-exclusive competence, of effectiveness and efficiency, and of legitimacy. These will be discussed in turn, with the emphasis on the latter two as being most important for our purposes. 3.5.2.1

Non-Exclusive Competence

Article 5 second paragraph stipulates that the subsidiarity principle does not apply to the areas that fall within the exclusive competence of the EC, which is in fact quite logical as in those areas the EC is the only authority competent to act. So, the choice of the appropriate level of action has then already been made. Yet neither this provision nor any other EC provision gives any clue as to what is to be understood by exclusive competence, nor does it provide for a list of exclusive competences or for the criteria on the basis of which these can be identified. It was the Court that introduced this concept into Community law, and it has been developed very much on a case-by-case basis, notably in relation to the external competences of the EC.92 Suffice it to observe here that in legal writing, views differ considerably as to what areas fall within exclusive competence. Toth for instance has argued that all conferred powers are in fact exclusive because of the primacy of EC law.93 Less radical views are that the EC is exclusively competent in the areas of commercial policy, agriculture and fisheries.94 Opposed views have been expressed on whether the internal market, transport policy and competition law fall within the exclusive competence of the Community.95 The Protocol on subsidiarity and proportionality brought no conclusive clarification of this issue, but that it is a recurring issue is illustrated by the White Paper on European Governance, the Declaration on the Future of the Union, attached to the Treaty of Nice, and the debate within the framework of the European Convention.96

92 Cf Case 22/70 ERTA [1971] ECR 263. 93 Toth (1992), at p 1080 and, in more detail, pp 1087–97. 94 At least as regards price regulations and market regulations. 95 According to the Commission in its Communication on subsidiarity,

Bull EC 10–1992, p 121, all of these fall within exclusive competence. Cf also Hartley (1993), p 215. 96 See in particular Article I–11 of the draft Constitutional Treaty drawn up by the European Convention, which distinguishes different categories of competence. Conv 850/03.

Guiding Principles for Legislation 83 3.5.2.2

Effectiveness and Efficiency

Only when it is clear that one can speak of non-exclusive competence and that therefore both the EC and the Member States are competent to act, need consideration be given to whether the national or the Community level is the appropriate level for exercising the competence. Article 5 second paragraph contains two criteria for making this choice; first, the objectives of the proposed action cannot be sufficiently realised by the Member States and, second, they can be better realised by the Community by reason of the scale or effects of the proposed action. A lot of discretion is left as to what is ‘sufficient’ and ‘better’, and the principle thus leaves room for the balancing of interests of the Member States and the EC. Consequently, it has been alleged repeatedly that what is at issue is a political principle, which is not justiciable.97 Meanwhile, however, the case law of the ECJ has revealed that judicial review of the application of the subsidiarity principle is in fact possible, albeit only marginally. That is, the Court confines itself to examining whether the EC institutions have taken the subsidiarity principle into consideration when proposing and adopting new legislation, and refrains from performing a full review.98 Much will therefore depend on how the EC institutions apply the principle in practice, and in that sense the subsidiarity principle can indeed be regarded as a rather political principle. Many views have been put forward regarding the specific test that the aforementioned criteria entail. Despite the terminological confusion in this respect, the ‘not sufficiently’ criterion can be said to entail an effectiveness test, meaning that if action at national level (including financial resources, legal instruments, potential and existing measures) is capable of producing the desired result, this level should be preferred.99 The ‘better ’ criterion can be said to entail an efficiency test, which requires a comparative evaluation of the costs and benefits of action at Community and national level.100 Designating the two criteria in terms

97 For instance by Dehousse (1992) (a), pp 209–216. Hartley (1993), p 216, speaks in this respect of limited legal effectiveness and of political effectiveness. 98 Case 84/94 UK v Council [1996] ECR I–5755 and Case C–233/94 Germany v EP and Council [1997] ECR I–2405. Van Nuffel (1997), pp 273–297, and Steyger (1997), pp 183–85. 99 Cf Dehousse (1992) (a), p 207, Steiner (1994), p 60 and Commentaire Mégret (1992), p 433. Cf also the early Report on the EU of 1975, ibid note 82 and the draft Treaty on the establishment of the EU (Spinelli Report), 14 February 1984. 100 Dehousse (1992) (a), p 207. Cf in the same sense van Nuffel (1997), p 282. Brinkhorst (1992), pp 7–8, has defined the first criterion as a test of necessity and the second as a test of effectiveness. Toth (1994), p 43, has referred to the first criterion as a test of effectiveness or efficiency and to the second as a test of scale. In its Communication on subsidiarity, the Commission has distinguished between a comparative efficiency test and a value-added test. Bull EC 10–1992, p 122.

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of ‘effectiveness’ and ‘efficiency’ also corresponds very much to their usual meaning.101 In the Edinburgh Conclusions, the European Council already concretised these criteria and formulated three guidelines for Community action, which have now been formally confirmed in the Protocol on subsidiarity and proportionality. Firstly, the issue must have transnational aspects which cannot be satisfactorily regulated by action of the Member States. Secondly, actions by the Member States alone or lack of Community action would conflict with the requirements of the Treaty (eg the need to correct distortion of competition or avoid disguised restrictions on trade). Thirdly, the Council must be satisfied that action at Community level would produce clear benefits by reason of its scale or effects compared with action at the national level. The necessity of Community action has to be substantiated by qualitative or, wherever possible, quantitative factors. The Protocol thus also establishes that the application of the subsidiarity principle entails a cumulative application of both criteria, which has been disputed in legal writing.102 The way in which the subsidiarity principle has thus been formulated in Article 5 and the above criteria for its application allow it in fact to be used as a ‘double-edged sword’, as Dehousse has put it.103 That is to say, the subsidiarity principle could be used both to justify and to combat Community action.104 The Protocol on subsidiarity and proportionality confirms this dynamic aspect of the principle, as according to its point 3 it has to be applied in the light of the objectives set out in the Treaty and allows Community action within the limits of its powers to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified. 3.5.2.3

Democratic Legitimacy

Yet, there is another, more democratic, aspect to the Community subsidiarity principle which has not been explicitly included in Article 5 EC: decision-making should take place as close as possible to the citizen. Or, the higher — Community — level should not do what could also be done or could be done even better by the lower — national — level.

101 According to the Collins English Dictionary, ‘effectiveness’ means that something is ‘productive of or capable of producing a result’, whereas ‘efficiency’ goes further in the sense of functioning or producing effectively ‘with the least waste of effort’. 102 See its points 4 to 6. Not a cumulative test, see Dehousse (1992) (a), p 208; van Nuffel (1997), pp 273–97; Toth (1992), p 1097; and Winter (1996) (b), pp 265–69. Cumulative test, see Brinkhorst (1992), p 8. 103 Dehousse (1992) (a), p 206. 104 Cf also Constantinesco (1991) (a), p 441. This may also explain why agreement on its insertion in the EC Treaty was reached at all.

Guiding Principles for Legislation 85 This is expressed in the preamble of the TEU, where the Member States underline their resolve to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity.

Article 1 second paragraph TEU states that: This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

Since Article 1 TEU also states that the Union shall be founded on the European Communities, this aspect must be considered implied in Article 5 EC. Moreover, the institutions themselves have repeatedly linked the aspects of effectiveness and legitimacy; both the Edinburgh Conclusions and the Communication on subsidiarity stated that the criteria for application of (then) Article 3B must also ensure that decisions are taken as closely as possible to the citizen. More recently, the different aspects of subsidiarity were linked to one another in the preamble of the Protocol. It could also be argued that this second aspect of subsidiarity is inherent to the proportionality principle, set out in the third paragraph of Article 5.105 So, the subsidiarity principle proves in fact to be of a dual nature or ambiguous.106 The practical application of the subsidiarity principle thus needs to reconcile the aim of effectiveness and efficiency on the one hand, with the aim of democratic legitimacy on the other.107 This is not an easy task. As Kapteyn has observed, considerations of effectiveness will often pull towards centralisation (ie the Community level), whereas considerations of democracy and legitimacy will pull towards decentralisation (ie the national level).108 According to Van Gerven, the notion of effet utile is in fact at odds with the subsidiarity principle, as the latter forces a restrictive interpretation of the competences of the EC. In saying this, he in fact places the emphasis on the legitimacy aspect of the subsidiarity principle.109 Brinkhorst, on the other hand, has argued that there is no conflict between this notion and the subsidiarity principle, as the effectiveness criterion offers the opportunity to define the subsidiarity principle as an obligation

105 Steiner (1994), p 50. 106 Cf Peterson (1994), p 120. 107 Cf Commentaire Mégret (1992), p 428. 108 Kapteyn (1993), p 48. See in the same sense 109 Van Gerven (1992), pp 1242–43.

also Steiner (1994), p 50.

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or condition to act in certain circumstances.110 Thus, a lot seems to depend on which aspect of subsidiarity — effectiveness/efficiency or democratic legitimacy — is emphasised. The questions arising from the principle of subsidiarity in relation to the use of soft law are identified in Subsection 3.6.1.3 below.

3.6

RULE OF LAW REQUIREMENT: GOOD GOVERNANCE

Once it has been established that there is a Community competence and that the Community level is the appropriate level of exercising competence, the next question is: what requirements are posed by the rule of law as to the exercise of this competence? These requirements will be discussed here under the heading of good governance, beginning with the principle of proportionality, and followed by the principles of effectiveness, equality and transparency.

3.6.1 3.6.1.1

Principle of Proportionality Proportionality as a Judicial and Legislative Doctrine111

The principle of proportionality for a long time had no explicit Treaty basis, but it made an early entry in the Court’s case law as an unwritten general principle of law.112 Later, in the Internationale Handelsgesellschaft Case, the Court examined whether the measure in question was necessary and appropriate to achieve its objective.113 In general terms, the proportionality principle is perceived as a basic concept of fairness,114 entailing a proper relationship or balance between means and ends.115 Or, why use ‘a steam hammer to crack a nut, if a nutcracker would do’.116 As to what the Court has actually taken to be the legal foundation of the Community proportionality principle, varying emphasis is laid on the national law of the Member States,117 the Community general principles of law, specific Treaty provisions and the rule of law.118

110 Brinkhorst (1992), pp 7–8. 111 Emiliou (1996) uses these terms, p 1. 112 Cf the early Case 8/55 Fédéchar [1954-1956] ECR 292. 113 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paras 12–18. 114 See Emiliou (1996), p 1. 115 Craig and de Búrca (1998), p 350. 116 See R v Goldschmidt [1983] 1 WLR 151, p 155 per Diplock, as cited by Emiliou (1996), p 2. 117 In particular on the German Verhaltnismässigkeitsprinzip and the French principe de propor-

tionnalité. See on these, Emiliou (1996) and de Moor-van Vugt (1995). 118 See more in depth, Emiliou (1996), pp 134–38, and Schwarze (1992), pp 710–17.

Guiding Principles for Legislation 87 The context in which the proportionality principle thus arose was that of an assessment ex post of the behaviour of both Community and national authorities. The Court frequently gives preliminary rulings on the interpretation of the free movement provisions, which enable the national courts to assess whether national measures are lawful under those provisions. The proportionality principle plays an important role in this assessment, and national measures often fail the proportionality test. Moreover, in particular in the framework of the Article 230 EC procedure, the Court is also asked to consider whether acts of the Community institutions are proportionate. So, the proportionality principle constitutes a means to protect individuals from excessive interference of the Member States and the EC.119 The establishment of the proportionality principle in Article 5 third paragraph EC by the TEU120 has added another context in which this principle plays a role; it provides for an assessment ex ante of the proportionality of Community action, at the stage of its initiation. Or, proportionality is not only a judicial doctrine for the court to apply in reviewing the legality of Community action. It is also a legislative doctrine for the political institutions to observe in the exercise of their decisionmaking functions.121

According to Article 5 third paragraph: Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

This provision fits in with the logic of Article 5 as a whole, as it flows naturally from the application of the principles of conferred powers and subsidiarity; because once it has been established that the Community is competent to act and that in a given instance the EC is the appropriate level to exercise competence, the next question is how this competence should be exercised. The proportionality principle as established in Article 5 is concerned with this next step, clearly separated from the subsidiarity principle,122 as confirmed also by (point 1 of) the Protocol on 119 See for instance Case 118/75 State v Watson and Belmann [1976] ECR 1185 and Case 15/83 Denkavit [1984] ECR 2171. 120 Although not explicitly referred to as the proportionality principle. Cf however the Protocol on subsidiarity and proportionality and point 1 thereof. 121 Emiliou (1996), p 142. 122 Cf also the Edinburgh Conclusions and in the same sense Koopmans (1995), p 695; Kapteyn and VerLoren van Themaat (1995), pp 89–97; Emiliou (1992), p 401; and Toth (1992), p 1083. The Commission caused some confusion by treating the proportionality principle as part of the subsidiarity principle; see point IV of its Communication on subsidiarity, Bull EC 10–1992, pp 123–24.

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the application of the subsidiarity and proportionality principles and the Court’s case law.123 In legal writing, it has also been argued that the proportionality principle is tested less marginally than the subsidiarity principle.124 Moreover, unlike the subsidiarity principle, the proportionality principle also applies to areas in which the EC is exclusively competent. Although it is proportionality as a legislative doctrine that is of particular relevance for our purposes, it is useful first to look more closely at the three-stage test that proportionality as a judicial doctrine actually involves, according to the Court.125 Firstly, the exercise of competence has to be appropriate or suitable, ie it must be reasonably effective as to achieving the aim for which the competence has been given. Secondly, the exercise of competence has to be necessary and indispensable, which is not the case if there are equally effective, alternative means to achieve the objective in question, less detrimental to other interests that deserve protection. Thirdly, this exercise of competence has to be proportionate in the strict sense; the adverse effect on other interests must be weighed against the positive effect that the exercised competence entails for the objective pursued by it.126 According to Van Gerven, the Court investigates whether there has been a reasonable exercise of competence, which he considers an assessment that belongs to the heart of the judicial task, as it involves the comparison of concrete forms of exercise of competence and a balancing of the concrete advantages and disadvantages thereof.127 Yet, the case law of the Court shows that this three-stage test is being applied with varying rigour and intensity, depending in particular on whether the Court is asked to adjudicate on political or legal issues.128 The latter kind of cases are those in which legally protected rights and interests are at stake, and where it is alleged that Community administrative or legal action is excessively restrictive upon these. There is no doubt that assessments of such a nature do indeed fall within the competence of the Court. Cases concerning political issues, however, entail a more controversial role for the Court, as it is then called upon to assess the policy choices made by the administration in the exercise of its discretionary power. From the Fedesa judgment it appears in this respect that

123 Case 84/94 UK v Council [1996] ECR I–5755. Cf also the opinion of Advocate-General Léger in this respect. Case C–233/94 Germany v EP and Council [1997] ECR I–2405 and Case C–359/92 Germany v Council [1994] ECR I–3681. 124 Cf Kapteyn (1993), p 49, and Kapteyn and VerLoren van Themaat (1995), p 94. 125 Case C–331/88 Fedesa [1990] ECR 4023. 126 See on these requirements van Gerven (1992), pp 1244–45; de Búrca (1993), p 117; and Jans (2000) (b), pp 240 ff. 127 Van Gerven (1992), pp 1244–45. 128 See de Búrca (1993), pp 105–7. Cf also Emiliou (1996), pp 174–75.

Guiding Principles for Legislation 89 in an area where the Community legislature enjoys a discretionary power, the lawfulness of the Community measure could only be affected if it were to be established that the measure was ‘manifestly inappropriate’ having regard to the objective pursued.129 This shows that the Court is not willing to substitute its judgment for that of the administration, even if it thinks that another way of acting would actually have been better, unless it is clearly or manifestly disproportionate. In short, the Court is more reluctant to scrutinise intensively if the affected interest is a general, public interest, than in the case of an indivual right being affected.130 Some authors take the view that the proportionality test should especially be more rigorous in cases where broad discretionary powers exist than in cases where the competences of the EC are already more limited or circumscribed.131 Indeed, a strict examination of the conduct of the EC institutions does seem justified, especially since the Council and the Commission are not elected bodies and are subject to weaker democratic control than national government.132 Others consider the marginal review to be justified, notably in cases where assessments of the social and economic policy choices are at stake,133 sometimes arguing that the reason for the more marginal review is that this Community action has been taken specifically to further the aims of the Treaty. This might also explain the more rigorous test the Court applies in the case of Member States’ action that has a detrimental impact on the Community’s interests.134 3.6.1.2

Form and Intensity of Community Action

As regards the application of the proportionality principle as a legislative doctrine, the stipulation in Article 5 that Community action shall not go beyond what is necessary to achieve the Treaty objectives concerns firstly the form or way of action, that is the means and instruments and their (legal) nature. Secondly, it concerns the intensity of the Community action, which relates to the actual contents thereof.135 As such, the

129 Case

C–331/ 88 Fedesa [1990] ECR 4023, paras 13–14. Cf also the judgment in Case 84/94 UK v Council [1996] ECR I–5755, in which the Court did actually deem the provision on rest on Sunday contained in the Directive at issue to be contrary to the proportionality principle, in being unsuitable to the pursued end. 130 Cf de Búrca (1993), p 123, who observes that it also matters how pressing the Community’s concern is and how severe the impact on the applicant’s interest. 131 Cf Ellis (1997), at p 1059 in relation to Case C–84/94 UK v Council [1996] ECR I–5755. 132 Cf de Búrca (1993), at p 116. 133 Eg van Nuffel (1997), p 278. 134 De Búrca (1993), pp 125–26. 135 Cf Commentaire Mégret (1992), at p 429.

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principle entails that every exercise of competence by the Community has to be performed with reservation,136 implying that whenever equally effective options are available, the EC must choose the forms of action and measures which leave the Member States, individuals and businesses the greatest degree of freedom. Financial and administrative burdens imposed upon them should be minimised and proportionate to the objective pursued.137 More concretely this means that consideration must be given to whether legislative action is required or whether other types of action, possibly of a non-binding nature, may suffice. Where possible, preference has to be given to non-binding measures such as recommendations or voluntary codes of conduct.138 Although the Protocol on subsidiarity and proportionality does not explicitly refer to the use of non-binding measures, and thus to soft law, this preference must be considered implied therein, as it emphasises that the Edinburgh Conclusions remain the guidelines for the implementation of the subsidiarity and proportionality principles.139 Furthermore, practice shows an increasing use of such nonbinding measures. Other types of action to be preferred over legislation are the encouragement of cooperation between the Member States through programmes or international agreements, (open) coordination or support of national action and benchmarking.140 The Commission has also mentioned in this respect agreements between management and labour and the coordination of private or public initiatives, considering that these alternatives are based on partnership with bodies ‘which are closer to the individual than the Community institutions’.141 So, legislation should only be resorted to when necessary and indispensable and when there are no other equally effective but less burdensome or interfering means available. If Community legislation does prove to be inevitable, then it should be limited to providing the framework within which national action must be fitted,142 such that an ‘overdose of rules’ is avoided. This also concerns the intensity of the action, as preference should be given to framework measures, to the setting of minimum norms and to the mutual recognition of norms rather than to detailed harmonisation measures. Wherever possible, the Community measures

136 Cf van 137 Cf the

Gerven (1992), pp 1244–45. Commission Communication on subsidiarity, Bull EC 10–1992, p 122 and the Conclusions of the Edinburgh European Council, Bull EC 12–1992, p 15. 138 Ibid. The Communication on subsidiarity, p 123, states that the main choice is between binding and non-binding measures. 139 Cf Prechal (1998), pp 290–91. 140 See also the Nice European Council, 7–9 December 2000, Annex 1, para 28. 141 The Communication on subsidiarity, Bull EC 10–1992, p 123. See also Subsection 1.6.3 on these alternative methods or instruments. 142 Ibid.

Guiding Principles for Legislation 91 should also provide the Member States with alternatives for realising the objectives of the Community measures, as long as these constitute an effective means for their implementation and application. In view of the characteristics of the directive, preference is given to the use of this legal instrument over the regulation.143 The latter should only be used when uniform rules are indispensable. Yet, the choice of instrument may already be limited as a result of the Treaty provision(s) upon which a particular act is to be based, as this may also prescribe the form and possibly the intensity of Community action. In legal writing, the prevailing view now seems to be that the institutions are left quite a lot of discretion in this regard and that the Treaty leaves open the choice of instrument in most instances.144 In the early 1980s the prevailing view was more to the contrary,145 which suggests that the various Treaty amendments have brought with them greater flexibility in the prescription of instrument. A confirmation of this view can be found in the general legal bases which the Treaty offers for harmonisation measures with regard to the establishment and functioning of the common market. Before the SEA, there was only Article 100 (now 94) EC, prescribing that such measures be taken in the form of directives. Since the SEA, Article 100a (now 95) EC also provides a legal basis for harmonisation measures, but leaves open the choice of instrument by speaking only of ‘measures’. Furthermore, the very general terms which are used in quite a number of Treaty provisions are striking; provision is made for ‘rules’, ‘provisions’, ‘measures’ and ‘guidelines’ with no specification of the instrument in which these are to be laid down.146 The envisaged scope thereof — binding or non-binding — is not always very clear. The scope of ‘measures’, for instance, appears to be very context-related. Thus, Article 14 EC provides that ‘The Community shall adopt measures with the aim of progressively establishing the internal market [ … ]’. According to Article 95 EC: The Council shall … adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. 143 See Subsection 2.4.1 on this. 144 Cf Craig and de Búrca (2002), p 112, and van Ooik (1999), p 264. 145 Eg Grabitz (1983), p 88. 146 Comparison of the wording of the Treaty provisions after each of

its amendment operations reveals in particular that new provisions that have been added to the existing ones often contain an open wording, in that they speak of ‘measures’, etc. This occurred notably after the ratification of the TEU. Where the EC Treaty prescribed a (binding) instrument or already used an open formulation, few changes were actually made. Furthermore, the Amsterdam and Nice Treaties left the EC provisions in this respect virtually unchanged.

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Far more restrictively, Article 150(4) EC provides that: The Council … shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.147

To conclude, it appears that the proportionality principle is a more effective ‘weapon’ against too much interference on the part of theCommunity than the subsidiarity principle, as it provides in fact a more effective guarantee against that, also from the point of view of justiciability.148 Focusing on the actual exercise of these competences could make the actions of the Community more controllable.149 More in particular, the application of the proportionality principle pulls in the direction of soft law. As will be seen in Subsection 8.3.3, however, this application must be balanced against other principles, in particular those of effectiveness, including uniform application, and of equality and legal certainty. 3.6.1.3

Questions Arising in Relation to Soft Law

It seems likely that, on the one hand, increased use of soft law resulting from the application of in particular the proportionality principle by the Community institutions contributes to the legitimacy of Community action, in the sense that it involves decision-making closer to the citizen and is less interfering and burdensome than legislation. On the other hand, the way in which the principles of subsidiarity and proportionality are being used in practice raises the question as to how far they are being used in a rather improper way. That is to say, in exercising its right of legislative initiative the Commission now has to take the subsidiarity and proportionality principles into account, which has in fact provided it with a ‘tool’ to influence the institutional balance in its favour; that is to say, considerations or arguments of subsidiarity and proportionality may function as a cover for not resorting to a proposal for legislation, whereas there may actually be a need or desire for that. This enables the Commission to circumvent the involvement of other Community institutions in the decision-making process.150

147 Whether

the absence of prescription of the instrument implies also the freedom to establish legally binding rules in instruments which are usually presumed to be soft law ones, will be considered more closely in Subsection 6.5.5.2 and Section 8.2. 148 Kapteyn and VerLoren van Themaat (1995), pp 96–97. 149 See also in this respect Commentaire Mégret (1992), p 433, and Dehousse (1992) (a), p 211. 150 In some flagrant instances where it was established that soft law had aimed at having legally binding force without fulfilling the conditions for this, the Court has punished this use. See in particular Section 6.5 on this.

Guiding Principles for Legislation 93 Another question is to what extent proportionality is used as a means to cover up an inability to achieve agreement in the Council, and thereby in fact detract from the effectiveness of Community action? The choice between legislation or other means depends on the outcome of the appropriateness and necessity tests. A further important question is to what extent the Treaty actually curtails the freedom of the institutions to choose the appropriate instrument and in particular prescribes the use of legislation. When that is the case, the proportionality principle has in fact already been applied by the Treaty drafters. Equally, one must consider the limits actually set to the use of soft law by other principles, such as uniform application, legal certainty and equal treatment; on the one hand, least interfering means are considered to contribute to legitimacy of Community actions, while on the other these may not be reconcilable with legal certainty, uniform application and effectiveness more in general. How should the balance be struck? 151

3.6.2 3.6.2.1

Principles of Effectiveness and Equality Implications at Community and National Levels

According to Article 2 TEU, the Union sets itself inter alia the objectives of maintaining the acquis communautaire and building on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring effectiveness of the mechanisms and institutions of the Community.

In general, one can say that not only must the ‘input’ ensure the legitimacy of the Community decision-making process, but also its ‘output’ in terms of effectiveness of the adopted decisions. As observed in Subsection 3.5.2.2, effectiveness can be said to refer to the fact that something is productive of or capable of producing an intended result. In the present context, it can further be said to concern the instrumental function of Community legislation, ie the extent to which society can be moulded through law, or in other words the realisation of the internal market and the Community objectives through the adoption of legislation.152 As such, the requirement of effectiveness is imposed not only at the EC level but also at the national level. 151 Subsections 8.3.2 and 8.3.3 152 Cf Snyder (1993), p 19 ff.

deal with the latter questions.

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As regards the EC level, it has already become clear in the preceding sections that the effectiveness requirement plays a significant role with respect to the existence and exercise of Community competences. Thus, the notion of effet utile entails that a wide interpretation be given to the competences conferred upon the EC by the provisions of the EC Treaty, in order to ensure the greatest possible effect of these competences and provisions.153 According to the subsidiarity principle, however, such a competence may only be exercised when Community action is more effective and efficient than action by the Member States.154 When the Community competence is being exercised, the focus turns to the effectiveness of EC legislation as such. This means that legislative action of the Community must be capable of or at least contribute to achieving the objectives of the EC, as spelt out in the EC Treaty. The Community institutions and mechanisms must be shaped and used in such a way as to realise this, enabling the proposal and adoption of legislation where necessary, without any undue delay. Furthermore, this legislation must meet a sufficient degree of acceptability, in particular there must be agreement on the effectiveness, efficiency (added-value) and proportionality of EC action. Thus, not only the pros and cons of Community action as such have to be weighed, but also the pros and cons of EC legislation and of any other possible form of action. This also involves the assessment of whether the decisions can indeed be implemented and applied. In this respect it is important to make sure not only that the contents of the measure in question are realisable and eliminate the possibility of fraud or misuse, but also that it is drafted in a clear, understandable and not too complex way. Once the measure has been adopted, the requirement of effectiveness also entails the necessity of assessments ex post; whether legislation is still necessary or might in fact be abrogated. Finally, effectiveness also concerns the correct and uniform application of Community law. At the national level, the requirement of effectiveness of EC legislation plays a role at various stages. Firstly, it must be possible to effectively transpose EC legislation into national law, whenever this is required (notably in the case of directives). Next, the transposed measures and the directly applicable EC law have to be effectively applied and complied with in practice by those to whom they are addressed. Finally, the national authorities have to ensure that whenever a conflict arises in this respect, EC law is effectively enforced.155 The Community institutions (ie the

153 See Subsection 3.4.1 above. 154 See Subsection 3.5.2.2 above. 155 See Case 33/76 Rewe–Zentralfinanz

pp 72–81.

[1976] ECR 1989 and in more detail Jans et al (2002),

Guiding Principles for Legislation 95 Commission and the ECJ/CFI) also have to effectively monitor this implementation and enforcement process.156 The principle of Community loyalty or sincere cooperation, contained in Article 10 EC, also in fact expresses the principles of effet utile and uniform application.157 It is generally understood that the principle of Article 10 EC imposes both ‘positive’ or ‘active’ obligations upon the Member States (first paragraph) and ‘negative’ or ‘passive’ ones (second paragraph). These obligations have also been interpreted broadly. The positive obligations encompass the duty to take all the measures necessary to ensure the effective application of Community law, the duty to ensure the protection of the rights ensuing from primary and secondary Community law and the duty to act in order to realise the objectives of the Treaty, in particular in the case of default of the competent Community institution. The negative obligations comprise the duty not to take any measures that could detract from the effet utile of Community law, hamper the internal functioning of the Community institutions or hinder the development of the Community integration process.158 As Temple Lang remarked in the FIDE 2000 conclusions, the view seems to be correct and undisputed that Article 10 also entails that all national authorities have duties to act in such a way that the Community legal system works effectively in the way that it was objectively intended to work.

He refers to this as the broad principle of effectiveness,159 meaning that Member States must take all possible measures to promote the interests of the Community and refrain from measures jeopardising these interests. This cannot be considered different for the Community institutions themselves; they too have to ensure the development and progress of Community law as the Treaty envisages and proposes, and refrain from measures going against this. So, Article 10 EC forces the institutions to respect the limits set by the Treaty not only out of a concern to respect each other’s powers, but also with a view to protecting and promoting the Community interests as such. In the present context, the principle of equality can be said to go hand in hand with the principle of effectiveness, and in particular the correct

156 Cf

the possibility of starting infringement proceedings on the basis of Article 226 EC and the Communication from the Commission on better monitoring of the application of Community law, COM(2002)725 final/2. 157 See Bleckmann (1976), p 486 for an early connection between the duty of Article 5(1) now 10(1) EC and the necessity to ensure the unity and effectiveness of Community law. 158 Kapteyn and VerLoren van Themaat (1995), pp 97–102. Cf also Due (1992) and van Gerven (2000). 159 Temple Lang (2000).

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and uniform application of Community law. It can be understood as the other side of the coin; when the correct and uniform application of Community law is ensured, it not only contributes to the general effectiveness thereof, but at the same time protects the interests of the individual by providing (better) protection against unequal treatment, since the same rules have to be applied to similar or comparable situations throughout the EC. 3.6.2.2

Questions Arising in Relation to Soft Law

As already seen in Chapter 1, both at the EC and the national level there has been a crisis of effectiveness, which has created doubts as to the instrumental function of legislation. To some extent this also explains the change in course, ie less legislation and more diversity in the Community’s forms of action and instruments to achieve the objectives of the Treaty. A first question that can be asked in this respect is to what extent soft law actually fulfils an instrumental function or fulfils other possible functions. Or, given the functions Community soft law fulfils, to what extent does it contribute to the effectiveness of Community action? Following on from this, how far can soft law acts be effective at all, being non legally binding acts in principle?160 Another question is what (indirect) legal effects Community soft law may have which would contribute to its effectiveness. Can for instance the duty of Community loyalty, the need of uniform application of Community law or the notion of effet utile entail an obligation for both the Community and the national legislature, executive and judiciary to take account of soft law? In line with these questions, one can also ask here to what extent the use of soft law jeopardises or in fact contributes to the equal treatment of those concerned by it.

3.6.3

Principle of Transparency

Transparency is often considered to be an important element of legitimacy itself as well as of good governance.161 However, it is only since the beginning of the 1990s that it has gained attention in the EC context and has become a rather fashionable issue. The meaning and scope of

160 See

on the concept of Community soft law Chapter 4, and on its possible legally binding force Chapter 6. 161 Cf most recently the Commission White Paper on European Governance, COM(2001)428 final and also Curtin (1996), p 98, and de Moor-van Vugt (1993), p 83, on some Community principles of good governance.

Guiding Principles for Legislation 97 this principle have not yet fully crystallised out, but it seems to include more elements than often thought and one can argue that it is now evolving into a general principle of Community law in itself. Usually it is merely connected with the issue of openness and access to documents, 162 but the principle of transparency is not confined to this. 163 In particular, the very place in the Treaty where the issue of openness and accessibility is regulated — Article 255 EC — indicates its clear link with two other aspects of transparency, of a procedural nature: the requirement of giving reasons in Article 253 EC, and the publication and notification requirement in Article 254 EC. From a substantive point of view, it appears that the principle of transparency also plays an important — at least supporting — role in the context of the application of other principles of law such as equality164 and legal certainty. 3.6.3.1

Openness and Accessibility: Article 255 EC

The importance of transparency from the viewpoint of democracy was recognised at the time of conclusion of the TEU, in the non-binding declaration concerning the issue of access to information which was attached to it. Subsequently, the matter was dealt with at the European Councils of Birmingham165 and Edinburgh, which resulted in the adoption of guidelines on transparency concerning access to the work of and information on the role of the Council, and on simplification of and easier access to Community legislation.166 It appears in particular from these guidelines that ‘access’ or ‘accessibility’ and ‘openness’ have both a substantive and a procedural meaning. As regards the substantive aspect, EC legislation has to be accessible or open in the sense of ensuring that new legislation is clear, simple and understandable, and coherent and consistent as a body of law. Existing legislation must therefore be consolidated and codified. In short, legislation must be of good quality.167 Suffice it here to refer to the initiatives that have already been discussed in Subsection 1.6.2.168 162 Eg Craig and de Búrca (1998), pp 368–71. 163 See also Vesterdorf (1999), p 902. 164 Cf Case 109/88 Danfoss [1989] ECR I–3199, in which the Court held that the application of

the principle of equality between men and women requires transparent pay structures. In Case C–275/98 Unitron Scandinavia [1999] ECR I–8291, the Court concluded that the application of the principle of non-discrimination on the ground of nationality requires transparency because otherwise the contracting service cannot see whether it is being upheld. See on the latter case Manunza (2001), p 147. 165 Conclusions of the Birmingham European Council, Bull EC 10–1992, p 9. 166 Bull EC 12–1992, pp 18–20. 167 Cf also the Resolution of the EP on the transparency of Community legislation and the need for it to be consolidated, A3–0266/94, OJ 1994, C 205/514. 168 See Westlake (1995), pp 144–63, for a discussion of the Council’s follow-up to the Edinburgh guidelines and more recently, Xanthaki (2001).

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Accessibility and openness are procedural notions in the sense that they concern a right of access to documents and as such more open government. The procedural aspect had follow-up through the adoption, on 6 December 1993, of a Code of Conduct on public access to Commission and Council documents, with the aim of making the decision-making process more transparent and strengthening the confidence of the public in the administration.169 This Code was formally confirmed in the internal rules of procedure of the Council and the Commission, by Council Decision 93/731 on public access to Council documents of 20 December 1993 170 and by Commission Decision 94/90 on public access to Commission documents of 8 February 1994.171 However, while setting as a general principle that the public will have the widest possible access to documents, the Code also provided for a considerable number of grounds on which access can be denied. From the case law relating to the Code and the aforementioned Decisions it appears that the requirement of open government does not (as yet) constitute a general principle of Community law,172 but the Community courts can be said to have generally given a broad reading to the right of access to information and a narrow reading to the exceptions.173 As a result of the Treaty of Amsterdam, Article 1 second paragraph TEU now also emphasises that decisions are to be taken ‘as openly as possible’. More importantly, the right of access to European Parliament, Council and Commission documents has been given a formal legal basis in Article 255 EC by the Amsterdam Treaty, although made subject to the general principles and limits on grounds of public or private interest to be determined by the Council, and the specific provisions to be elaborated by each of these institutions in its own rules of procedure. 174 The legislation thus required has meanwhile

169 OJ 1993, L 340/41, preceded by the Communication of the Commission on Openness in the Community, OJ 1993, C–166/4 and its Communication on Public Access to the Institutions’ Documents, OJ 1993, C–156/5. 170 OJ 1993, L 340/43. 171 OJ 1994, L 46/58. 172 Yet the case law of the CFI appears to be important as regards the development of a Community regime of openness. See inter alia Cases T–194/94 Carvel and Guardian Newspapers v Council [1995] ECR II–2765; T–105/95 WWF UK v Commission [1997] ECR II–313; T–174/95 Svenska Journalisförbundet v Council [1998] ECR II–2289; T–83/96 Van der Wal v Commission [1998] ECR II–545; T–124/96 Interporc v Commission [1998] ECR II–231; T–188/97 Rothmans International v Commission [1999] ECR II–2463; T–309/97 The Bavarian Lager Company Ltd v Commission [1999] ECR II–3217; T–14/98 Hautala v Council [1999] ECR II–2489. In Case C–353/99P Council v Hautala [2001] ECR I–9565, para 31, the ECJ did not consider it necessary to rule on whether EC law establishes a general ‘principle of the right to information’. 173 Craig and de Búrca (2002), pp 392–94. 174 Article 207(3) EC also specifies that in the cases in which the Council acts in its legislative capacity more openness will be given and greater access allowed to documents.

Guiding Principles for Legislation 99 been adopted in the form of Regulation 1049/2001.175 Quite logically, access to information and documents of the EC is a prerequisite for understanding the policy that is being conducted and, more in particular, the background of certain — legislative — measures. The next requirement follows naturally from this. 3.6.3.2

Giving Reasons Requirement: Article 253 EC

According to Article 253 EC: Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.

The requirement of giving reasons thus established is important from different perspectives and for different parties, as became clear from the Court’s judgment in the early Germany v Commission Case.176 The Court held in that case that the obligation contained in (ex) Article 190 EC seeks to give an opportunity to the parties to defend their rights, to the Court to exercise its supervisory functions and to Member States and interested nationals to ascertain the circumstances under which in the specific case the Commission has applied the Treaty. So, concerned parties and the Member States have a better understanding of the motives behind the decisions of EC institutions, which increases their chances of influencing or fighting them. At the same time the institutions are forced to consider carefully the purpose and lawfulness of their measures ex ante and the Court is put in a better position to review their lawfulness ex post.177 The transparency of the decision-making process and the decisions is further enhanced by the fact that the requirement applies not only to acts of an implementing nature but also to acts of a legislative nature, which does not seem to be the case in most Member States.178 This may also be delegated legislation, in which case the obligation applies in the same way to the delegate as it applied to the delegating authority.179 Hartley thus concludes that the duty to give reasons ‘applies to almost all acts having legal effects’.180 175 OJ 2001, L 145/43. 176 Case 24/62 Germany

v Commission (Brennwein) [1963] ECR 131. See also Case 158/80 REWE [1981] ECR 1805, para 25. 177 See Craig and de Búrca (1998), at pp 119–20. 178 Hartley (1998), p 122. 179 Case 9/56 Meroni [1958] ECR 133. See also Hartley (1998), p 124. 180 Hartley (1998), p 124.

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As appeared from the Court’s judgment in the Beus Case, the scope of the giving reasons requirement varies with the nature of the act or instrument at issue.181 In particular, it could already be seen from this judgment that as regards legislative measures — in this case a regulation, but possibly also directives addressed to all the Member States — , it will suffice to show their essential objectives without explaining each technical choice that has been made or every detail of fact and law.182 In the case of individualised decisions — Article 249 EC decisions, but possibly also directives addressed to one or only some Member States — , the institutions may be required to provide a more ample statement of reasons.183 Following on from this, the question arises whether the giving reasons requirement brings with it the obligation for the institutions to respond to all the arguments that have been put forward by the concerned parties during the preparation of a certain act. This has been referred to as the dialogue dimension of the giving reasons requirement, alongside its transparency dimension. 184 The Court does not seem inclined to accept such an obligation, which would in fact create a kind of participation right.185 Nonetheless, some deem that participation in government, possibly through dialogue, is a precondition for full transparency.186 3.6.3.3

Publication and Notification Requirement: Article 254 EC

Until the TEU came into force, (ex) Article 191 EC only prescribed the publication of regulations, whereas directives and decisions had merely to be notified to those to whom they were addressed. Since the entry into force of the TEU, the new Article 254 EC requires that regulations, directives and decisions adopted under the Article 251 EC co-decision procedure be published in the Official Journal of the Community. Regulations of the Council and of the Commission, and directives adopted by those institutions if addressed to all Member States, must also be published in the Official Journal. They enter into force on the date specified in them or, in the absence thereof, on the 20th day following their publication.

181 Case

5/67 Beus [1968] ECR 83, at p 95. Confirmed in Case C–84/94 UK v Council [1996] ECR I–5755, paras 74–79. Cf also Case C–122/94 Commission v Council [1996] ECR I–881, para 29 and Case C–205/94 Binder [1996] ECR I–2871. 182 Craig and de Búrca (1998), pp 120–21. 183 Cf Case 24/62 Germany v Commission (Brennwein) [1963] ECR 131. More recently, Case T–5/93 Tremblay v Commission [1995] ECR II–185. Craig and de Búrca (1998), p 121. 184 Shapiro (1992), as quoted in Craig and de Búrca (1998), p 122. 185 Joined cases 240–42, 261–62, 268–69/82 Sigarettenindustrie v Commission [1985] ECR 3831. 186 Shapiro (1992), as quoted in Craig and de Búrca (1998), p 122.

Guiding Principles for Legislation 101 Other directives, and decisions, must be notified to their addressees and take effect upon notification. Notification involves a formal communication from the institution that has adopted the act in question to the person(s) addressed by it. This does not necessarily have to be in writing, unless secondary legislation so requires.187 However, informal information does not suffice.188 Publication and notification are not deemed to be constitutive requirements, so belated publication or notification does not affect the validity of an act.189 Although Article 254 does not distinguish between the L-series and C-series of the Official Journal, it is common knowledge that adopted legislation is published in the L-series and proposed legislation in the C-series.190 3.6.3.4

Principle of Legal Certainty

The re-regulation of certain aspects of state aid law and policy illustrates the link that exists between transparency and legal certainty.191 It is established case law that the principle of legal certainty requires that Community legislation and every measure of the administration having legal effects be predictable or foreseeable. Rules imposed on individuals must be clear and precise and must be brought to the attention of those concerned in such a way that they may know without ambiguity what rights and obligations ensue from them, and from what date.192 This is the more necessary where they impose financial consequences193 and with respect to ensuring legal remedies.194 The principle of legal certainty also concerns the protection of vested rights. Another principle which logically ensues from the requirement of legal certainty,195 and which is of particular importance in the context of this study, is the protection of legitimate expectations. This entails in particular that justified hopes and reasonable expectations arising out

187 Joined cases 316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641. See Usher (1998),

pp 142–143. 188 Case 59/84 Tezi Textiel v Commission [1986] ECR 887. 189 Cf Hartley (1998), pp 128–29. 190 ’L’ refers to Legislatio and ‘C’ to Communicatio. 191 See in more detail Subsection 8.3.3.2 and further Subsection 10.5.3 below. 192 Cf Case 169/80 Gondrand [1981] ECR 1931, para 17 and Case 70/83 Kloppenburg [1984] ECR 1075. 193 Case 169/80 Gondrand [1981] ECR 1931, Case 325/85 Ireland v Commission [1987] ECR 5041, para 18, Case 70/83 Kloppenburg [1984] ECR 1075 and more recently, Case C–236/95 Commission v Greece [1996] ECR I–4459, para 13 and Case T–115/94 Opel Austria v Council [1997] ECR II–2739, para 124. 194 Joined cases T–18/89 and T–24/89 Tagaras v Court of Justice [1991] ECR II–53, para 40. Cf also Case T–81/95 Interhotel v Commission [1997] ECR II–1265. 195 Jans et al (2002), p 215.

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of an existing legal situation, previous legislation or conduct of the Community institutions, are protected. In adopting legislative measures, the Community must thus respect any (individual) legitimate expectations that may exist on the part of those concerned unless an overriding (general) Community interest takes priority.196 Legal certainty thus forms a (procedural and substantive) standard of good administration, requiring an adequate balancing of general and individual interests, and providing protection of expectations regarding continuity of the law and protection against over-abrupt changes of the law.197 3.6.3.5

Questions Arising in Relation to Soft Law

A first question is how far the effort to improve the accessibility of EC legislation, in particular in its meaning of substantive quality, is not perhaps being undermined by the increased use of soft law. Or, how far does this effort also concern soft law? Next, to what extent does the requirement of giving reasons also apply to soft law acts? Should this requirement be understood as also recognising participation rights, possibly as a result of consultation through soft law arrangements? More in particularly, where recourse is had to soft law acts specifically with a view to increasing the democratic legitimacy of Community action, would this not mean that this requirement has to be interpreted as entailing an obligation to take these acts into account? Does a requirement of publication or notification also apply to soft law?198 Or, is publication/notification required before it can have any legal effect whatsoever? The legal certainty requirement entails the requirement that Community action be foreseeable and predictable; is the use of soft law consistent with this requirement, in particular where it creates a wrong or at least uncertain impression as to the legal rights and obligations under Community law? A question connected to this is to what extent legal certainty, in particular in its meaning of legitimate expectations or vested rights, may create legal effects of soft law. In more general terms, the question raised by the principle of transparency is whether the use of soft law does not in fact obscure the decision-making process and the decisions taken by the EC, in particular because of the untransparent system of Community legal instruments, whose legal status is not always clear. 196 Cf for instance the opinion of A-G Jacobs in Joined cases C–13 to 16/92 Driessen [1993] ECR I–4751, point 32. 197 Prechal and Heukels (1986), pp 295–96. 198 Cf eg Curtin (1996), p 107.

Guiding Principles for Legislation 103 3.7

CONCLUSIONS

In this chapter I have discussed the principles that determine whether the EC is competent to act, and in particular to adopt legislation; and, if so, how this competence should be exercised. These principles apply with a view to ensuring the legitimacy of Community action, to be understood in the broad sense of encompassing both democratic legitimacy and rule of law requirements. As observed, the adoption of legislation has first to be in conformity with the principle of conferred powers; the power to adopt legislation must have been transferred to the EC by the Member States, and this must (ultimately) be established on the basis of one or more provisions of the EC Treaty. If such Treaty provision(s) can be identified, the principle of subsidiarity next entails that in the case of a non-exclusive Community competence consideration must be given to whether the Community level is actually the appropriate level to exercise the competence. This depends on the effectiveness and efficiency of the action envisaged; if the national level is capable of producing the desired result, and this with less effort and cost than the Community level, then the national level should be preferred. This principle also entails that decision-making should take place as close as possible to the citizens. Furthermore, the rule of law to which the EC is committed brings with it that the actual exercise of competence must comply with principles of good governance. That is to say, exercise of competence by means of the adoption of legislation must entail a number of guarantees. To begin with, the exercise of competence must be proportionate. In this case this means that legislation may only be adopted if it is appropriate and necessary to achieve the objectives aimed at. Next, legislation must be effective, at the level of both its initiation (EC level) and its implementation (national level). This also entails the necessity of correct and uniform application of Community law throughout the EC, which at the individual level must ensure equal treatment. The requirement of transparency has both procedural and substantive aspects. Firstly, it entails that Community action be open and accessible. On the one hand this concerns access to documents and open government. On the other, it relates to the acccessibility in terms of understandability, clarity etc. of Community action, which also concerns the quality of legislation. Secondly, transparency entails the possibility of knowing the reasons behind the adoption of a certain piece of legislation, ie the giving reasons requirement, and the possibility of taking notice of Community legislation at all, ie the publication and notification requirement. Thirdly, it entails that Community action be foreseeable and predictable, as ensured by the principle of legal certainty. The principles guiding the adoption of Community legislation as a result of the EC’s commitment to democratic legitimacy and the rule of

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law have been discussed to enable more concrete identification of the questions arising from the adoption of Community soft law in view of this commitment. These have been identified in separate subsections in this chapter, to which I refer the reader. Suffice it here to say that, in general, the question is to what extent the guiding principles also apply to soft law, and what the implications of these principles are for the use of soft law. For instance, does the principle of conferred powers also apply to soft law, and how does the use of soft law affect the external and internal division of powers, functions which are also fulfilled by the principle of conferred powers? Does the principle of legal certainty entail that the use of soft law is not always permitted, and that steps must be taken to adopt legislation? In Parts II and III of this study an answer will be sought to these and the other questions identified in this chapter. In Part II, this will be done by looking at how the Council and the Commission go about their adoption and use of soft law instruments, and what functions these instruments actually fulfil in the Community legal system. In Part III, it will be done by looking into the legal issues that the use of soft law raises. In Part IV, final conclusions will be drawn.

Part II

Community Soft Law Instruments

4 Introduction to the Concept of Soft Law in EC Law 4.1

INTRODUCTION

In Commentaire Mégret the proportionality principle is described as un principe de comportement qui requiert essentiellement un ‘état d’esprit’. …Ce principe de comportement devrait aussi exiger une certaine imagination dans les modalités de mise en oeuvre de l’action ou dans la solution à apporter au probleme posé.1

The EC Treaty itself potentially restricts this imagination, by providing only a limited catalogue of instruments in its Article 249. As regards soft law instruments, it provides only for recommendations and opinions. At the same time, however, numerous Treaty provisions do leave scope for such imaginative use, as they do not specify the form in which Community measures have to be cast and refer only to the adoption of incentive measures, measures, provisions, (general) rules, actions, arrangements, guidelines and implementing decisions. Other provisions state that general orientations will be formulated, the necessary decisions taken or that it will be decided. Meanwhile, Community practice provides evidence of such imaginative use, also in cases not concerning any of these Treaty provisions, as the following example relating to the development of the single market for postal services illustrates. In June 1992, the Commission submitted a Green Paper on the development of the single market for postal services. The subsequent extensive consultation process resulted in the adoption of Guidelines for the Community postal services, issued in June 1993. In a Resolution of 7 February 1994 the Council invited the Commission to put forward proposals for the harmonisation and gradual liberalisation of the postal sector. In July 1995, this led to the adoption of a package of measures, which consisted of a proposal for an EP and Council Directive on common rules for

1 Commentaire

Mégret (1992), pp 430–31.

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the development of Community postal services and the improvement of quality of service and a draft Commission Notice on the application of the competition rules to the postal sector and, in particular, on the assessment of certain state measures relating to postal services. This summary of the Community action relating to the liberalisation of the postal sector was given in the Communication from the Commission to the Council, the EP, the ESC and the COR on the public consultation on the aforementioned draft Notice. The Green Paper, Commission Guidelines, Council Resolution, Commission Notice and Commission Communication successively adopted can be brought under the heading of soft law. An obvious question arising from this example is how these acts relate to the proposed directive. The focus of Part II of this study will be to gain insight into and a clear understanding of the phenomenon of soft law as found in Community practice, with the emphasis on how the different soft law instruments relate to legislation. This chapter contains a number of introductory remarks on the concept of soft law in EC law and will as such provide the basis for the discussion of the various instruments in the next chapter. With a view to this, some consideration will first be given to the use of the term soft law (Section 4.2). Next, the concept of soft law in EC law will be defined (Section 4.3). Then, the heterogeneity of the phenomenon of Community soft law will be addressed, by first looking briefly at the two lines in legal writing that can be distinguished in this respect and identifying some problems connected with this heterogeneous nature of soft law (Section 4.4). The discussion will then turn to the prerequisites that soft law instruments must fulfil in order to be able to function as an alternative to legislation at all (Section 4.5). This discussion will also elucidate the classification of the various soft law instruments that is made next, based on the objective they aim at and the functions they can be said to fulfil. Furthermore, it will be possible to identify more specifically the functions these instruments fulfil in relation to legislation (Section 4.6). This functional classification will then be used as a basis in the following chapter, allowing some conclusions to be drawn there regarding the instruments’ potentiality to function as an alternative to legislation. Whether they may function as a satisfactory alternative to legislation, from the point of view of the requirements imposed by democratic legitimacy and the rule of law,2 depends on a number of other features of the soft law instruments thus identified, such as their way of adoption, publication, addressees etc. This analysis will also elucidate the approach and examination actually conducted in the next chapter (Section 4.7).

2 See

the questions identified in Chapter 3.

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109

TERMINOLOGY

In Chapter 2 it was seen that EC law has its origins in a wide variety of sources and is laid down in many different instruments. A distinction was already drawn there between primary, secondary and tertiary sources. The distinction between secondary and tertiary sources was made on the basis of the criterion of legally binding force. In fact, the distinction between binding and non-binding acts follows from the wording of Article 249 EC, in which recommendations and opinions are explicitly held to have no binding force, contrary to regulations, directives and decisions. In view of this, it is not really surprising that in the vocabulary of the EC and its institutions, the distinction between binding and non-binding has become the most common, as can be seen for instance in the Conclusions of the European Council of Edinburgh.3 A distinction between typical and a-typical acts has also sometimes been made in this context.4 In legal writing, however, the term soft law has been increasingly used to denote these non-binding or (certain) atypical acts. The concept of soft law developed initially in the context of international law,5 but was also found in the EC law context in the early 1980s.6 Yet, the use of the term soft law is not undisputed. Objections that have been put forward appear to have been inspired by considerations arising from both a national and an international law point of view. Starting from the national law point of view, one can understand the argument that the term soft law constitutes a contradictio in terminis: soft law without legal effects is not law and soft law with legal effects is hard law.7 Bothe seems rather to take an international law point of view, observing that: Es handelt sich nicht um ‘law’, sondern um Normen nicht-rechtlicher Art, die je nach dem politischen Kontext mehr oder weniger gewisse Verhaltenserwartungen schaffen, in diesem Sinne also mehr oder weniger ‘hard’ oder ‘soft’ sein können.8

Starting explicitly from an international law point of view, Klabbers has criticised the use of the term soft law, especially if its distinction from hard law were to boil down to the latter being enforceable and sanctionable

3 Bull EC 12–1992, p 15. 4 Everling (1987), p 417. 5 See Borchardt and Wellens (1987) and (1989) on this. 6 See Bothe (1981). Cf also Borchardt and Wellens (1987)

and (1989), Thürer (1990), Snyder (1994), Senden (1997), Senden and Prechal (2001). Some contributions on the use of soft law in specific areas have been made by Gutwirth and Joris (1991), Kenner (1995), Beveridge and Nott (1998) and Howells (1998). 7 See for instance Kuiper in van der Woude (1988), at p 244. 8 Bothe (1981), at p 769. Cf also p 772.

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and the former not. He deems that this would toll the death bell for public international law.9 I do not agree with this criticism. For various reasons, the term soft law provides a maybe not perfect, but at least reasonably satisfactory umbrella concept. To begin with, the phenomenon of soft law in EC law should not be explained in terms of what is understood by law in the national and international law contexts.10 As can be seen from the very earliest case law of the ECJ, the Community legal order constitutes a new legal order in its own right, with its own institutions, personality, legal capacity and powers.11 Consequently, Community instruments should be assessed within the framework of the Community’s own legal system and, in particular, they should not be judged against standards derived from national or international law. The case law on EC directives is a clear illustration of this, as it shows that EC directives have a particular meaning, significance and legal status in Community law which is in no way comparable to the meaning, significance and legal status of directives in national or international law.12 In a similar way, soft law instruments have acquired a particular meaning, significance and legal status in EC law. Secondly, I consider that there is no suitable alternative to the term soft law. As will become clear in particular in Part III, the distinction binding — non-binding is too black-and-white, too simple to do justice to the phenomenon of soft law and its possible legal effect. This is also expressed in the definition of soft law that will be given in the next section. The term a-typical is equally unsuitable, being of such a potentially broad nature that it may also cover acts which as such do not fall within the concept of soft law. In legal writing, several other terms have been used to describe the phenomenon at issue, in particular informal instruments,13 pseudo- or quasi-legislation14 and administrative rules.15 None of these is satisfactory either, in my view. The term administrative rules is too narrow, as it in fact concerns only one of the categories of soft law instruments that can be distinguished. The term pseudo- or quasi-legislation may be criticised for the same reason as the term soft law, but it suffers in addition from a lack of use in the Community law context, at least in the English literature.16 It is 9 Klabbers (1994), at pp 998–99, in response notably to the definition given to soft law by Borchardt and Wellens presented below in Section 4.3. 10 Cf also Kapteyn (1985) and Mortelmans (1979). 11 Case 26/62 Van Gend en Loos [1963] ECR 3 and Case 6/64 Costa v ENEL [1964] ECR 585, at p 593. 12 See Prechal (1995). 13 Klabbers (1994). 14 Mortelmans (1979), Kapteyn (1985). 15 Lauwaars (1993). 16 Only Kapteyn (1985) and Mortelmans (1979) appear to have used the term in relation to EC law.

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more common in the national law context.17 Besides that, the term pseudo-legislation has also been used as a synonym for administrative rules,18 which as noted constitute only one category of soft law. The designation informal instruments is rather vague and indistinct (as is a-typical act), and is even less commonly used than the term pseudo- or quasi-legislation. Against this background, I deem that the term soft law expresses quite well that what is at issue is a ‘shadow area between law and politics’, as Thürer has put it.19 In charting more precisely this shadow area and, more particularly, the delimitation between soft law and hard law, the foregoing has already indicated that the crucial point in this respect is legal effect. Not surprisingly, it is also a prominent feature in the descriptions and definitions that have been given of soft law in the context of EC law.

4.3

A DEFINITION OF SOFT LAW

Defining soft law is not easy. Not all authors on soft law instruments have actually defined the phenomenon in general terms. However, although they are formulated quite differently, the following definitions enable one to establish the core elements of soft law. At one end of the spectrum there is the very concise definition given by Snyder, who says that soft law concerns ‘Rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects’.20 Thürer too confines himself to a concise definition, considering that soft law concerns commitments which are more than policy statements but less than law in its strict sense. They all have in common, without being binding as a matter of law, a certain proximity to the law or a certain legal relevance.21

At the other end of the spectrum Borchardt and Wellens have given the following elaborate definition: Community soft law concerns the rules of conduct which find themselves on the legally non-binding level (in the sense of enforceable and sanctionable) but which according to their drafters have to be awarded a legal scope, that has to be specified at every turn and therefore do not show a uniform value of intensity with regard to their legal scope, but do have in common 17 Cf for instance in the Dutch legal 18 Eg Swennen (2000), p 131 ff. 19 Thürer (1990), p 131. 20 Snyder (1994), p 198. 21 Thürer (1990), p 132.

order, van der Hoeven (1965).

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that they are directed at (intention of the drafters) and have as effect (through the medium of the Community legal order) that they influence the conduct of Member States, institutions, undertakings and individuals, however without containing Community rights and obligations.22

None of these definitions do I consider entirely satisfactory; ‘commitments’ in the definition of Thürer is rather vague, Borchardt and Wellens’ definition is too elaborate and unnecessarily complex as to the legal effect of soft law, while Snyder’s is too succint on this last point. Yet, what becomes very clear from these definitions, and from those given by other authors, is the emphasis placed on the element of binding force and — legal — effect.23 Clearly, the element of legal effect, in particular the attribution of legally binding force or not, is considered to be the feature that distinguishes soft law from hard law. If no such binding force has been attributed to a Community instrument and it has only ‘some legal scope’ and practical effect, then one can speak of a soft law instrument. This is in fact already expressed by the designations ‘soft’ and ‘hard’. ‘Law’ in the context of soft law implies in fact that at issue must be rules of conduct. 24 That is to say, one can only speak of a soft law act if it establishes rules of a normative nature, prescribing or inviting its addressees to adopt certain behaviour or measures. Mere political statements, which are confined to expressing a certain view, or instruments that aim merely at providing information, do not constitute such rules of conduct. However, the dividing line may not always be clear in this respect. So, the above definitions allow one to establish three core elements of soft law. The first common element is that ‘rules of conduct’ or ‘commitments’ are concerned.25 Secondly, there is agreement on the fact that these are laid down in instruments which have no legally binding force as such, but are nonetheless not devoid of all legal effect. Thirdly, it is clear that they aim at or may lead to some practical effect or influence of behaviour. On the basis of these elements, I therefore propose the following definition of soft law: Rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed at and may produce practical effects.

This definition expresses that in the case of soft law there is in fact a tension between intention and result. That is to say, soft law acts establish 22 Borchardt and Wellens (1989), p 285. 23 Cf also Beveridge and Nott (1998), pp 24 Cf Thürer (1990), p 132. 25 See also Morand (1970), pp 626–27.

289–90.

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rules of conduct that aim at having at least some — practical — effect, but this effect depends on factors other than legally binding force. Clearly, this will have an influence on the effect soft law actually generates in terms of its application and compliance therewith. Whether these will be legal effects or practical or de facto effects depends on whether or not there is a legal obligation to give effect to or comply with the rights and obligations contained in a Community soft law act. In the case of purely voluntary compliance with a soft law act, not imposed by the law itself, one can speak of a de facto effect.26

4.4

4.4.1

HETEROGENEITY OF THE PHENOMENON OF SOFT LAW

Two Lines in Legal Writing

The concept of soft law as established in the preceding section can be considered to provide an umbrella concept for those instruments laying down rules of conduct whose legal status is unclear or uncertain.27 What alone is certain is that they have not been attributed legally binding force.28 Given the limited number of Community instruments provided for by the EC Treaty itself, and the proliferation of Community instruments in daily practice, it is clear that many different instruments can be brought within its scope. A more specific delimitation of the concept of soft law should therefore be made for the purposes of this study. Soft law here will further be understood to refer mainly to the instruments adopted (unilaterally) by the Commission and the Council. Consequently, instruments or methods that depend to a large extent on the direct involvement of outside — either public or private — parties will not be dealt with in this study. These include firstly the benchmarking and best practices exercises as such, which are increasingly coming into use — also as part of the open method of coordination — and which involve primarily the Member States. The open method of coordination itself will be dealt with only to the extent that its application entails the adoption of soft law instruments by the Commission and the Council, in particular recommendations and certain guidelines. Secondly, there are the co-regulatory and self-regulatory instruments such as European collective agreements and environmental agreements, which involve respectively management and labour and industry. Finally, the rules drawn up by normalisation institutes (eg, CEN and CENELEC) can also be mentioned in this respect.29 26 See further Subsection 6.2.4. 27 Cf also Beveridge and Nott (1998), p 290. 28 See Chapter 6 for a detailed discussion of this. 29 Cf Mortelmans in van der Woude (1988), p 244.

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With respect to the identification of the instruments used by the Council and the Commission, it is possible to distinguish two lines in legal writing, which is also illustrative of the heterogeneity of the phenomenon as it occurs in the EC law context. Before these two lines are presented, it must first be observed that the attention given to soft law in legal writing has been fairly limited. Whereas the literature on for instance EC directives has been so abundant that one cannot keep track of it all, discussion of soft law has been rather incidental and focuses mostly on only certain instruments. Moreover, the interest shown within legal writing has not kept pace with the development of the increasing use of soft law and its proposition as an alternative to legislation.30 A second observation is that although, as noted, the Community legal order constitutes a legal order in its own right, with its own characteristics, it cannot be denied that it has features that bear resemblance to national and international law. It must therefore be acknowledged that the same designation may be used for similar but not necessarily identical instruments encountered in EC law and in the national and international legal orders. Recommendations, for instance, are adopted at the national level, the EC level and the international level. Legal writing on soft law instruments in EC law has clearly been inspired by the use made of like instruments in the Member States or by international organisations; the instruments discussed differ, depending on whether a national or international law perspective has been taken. However, the important fact remains that their precise significance and effect can only be assessed against the specific background and peculiarities of the Community legal order. The first of the two lines of thinking has focused on the Community instruments that resemble instruments found in the context of international law: conclusions, declarations, recommendations, resolutions and the like, adopted by notably the Council, Representatives of the Governments of the Member States meeting in Council or by the Member States themselves. These are primarily instruments that do not as such relate to the application and interpretation of existing Community law, but may rather aim at establishing new Community rules or principles. This line developed at quite an early stage and is, overall, the more visible. As early as 1966, an issue of the Dutch law journal Sociaal Economische Wetgeving was dedicated to these types of instruments, with contributions from Bebr, Schermers and Pescatore.31 Later, Bothe and Everling also took this line of thought and concentrated

30 Of the numerous articles that have been written on the subsidiarity and proportionality principles, very few have dealt with this aspect. One of these is Snyder (1994). 31 Bebr (1966), Schermers (1966), Pescatore (1966).

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on the ‘international law type of instruments’.32 Towards the end of the 1980s, Borchardt and Wellens conducted the most detailed study on soft law in EC law, but rather surprisingly also confined themselves to the aforementioned instruments. 33 This may be explained by their very obvious international law approach,34 given that they dealt rather extensively with the phenomenon of soft law in international law before dealing with it in the particular EC law context.35 The second line of thinking developed at a somewhat later stage, from the end of the 1970s, and has concentrated on soft law instruments adopted notably by the Commission. These are instruments that have equivalents in national law rather than international law: notices, communications, guidelines, codes of conduct, memoranda and the like. Most of these instruments relate to the interpretation and application of existing Community law. As such, they bear resemblance in particular to administrative rules, which are also frequently found in national law.36 Communications have been given most attention in this respect, the earliest in-depth study of this type of instrument being made by Melchior.37 The later contributions on Community soft law made by Mortelmans, Kapteyn, Lauwaars and Snyder also fit in with this more national law oriented approach.38 4.4.2

Problems Connected with this Heterogeneity

The heterogeneity of the phenomenon of soft law in EC law, in particular the variety of instruments that can possibly fall within its scope, makes it difficult, if not impossible, to make general comments on its nature, function, possible legal effect and other characteristics such as addressees, possible legal basis etc. Since these instruments are not regulated in any way, one has to establish these features by looking at the adopted act itself. Much will therefore be found to depend on the instrument in question, its actual contents and the intention of its drafters. In view of this, some deem the collective designation of the aforementioned instruments as soft law an inappropriate simplification.39 32 Bothe (1981), Everling (1983) and (1987). Cf also Morand (1970). 33 Borchardt and Wellens (1987) and (1989). Cf also Thürer (1990). 34 Which was criticised by Kapteyn, Mortelmans, Timmermans and

Lauwaars in van der Woude (1988), pp 245–46. 35 See for a similar approach, Bothe (1981) and to a certain extent also Everling (1983), who under the heading of ‘A-typischer Rechts- und Handlungsformen’ considers only ‘Beschlüsse, Entschliessungen, Vereinbarungen, Erklärungen’ which have been adopted by the Council, the representatives of the Member States meeting in Council or the Member States. Dewost (1987), p 328, similarly confines himself to considering resolutions. 36 See further Section 3.1. 37 Melchior (1979). 38 Mortelmans (1979), Kapteyn (1985), Lauwaars (1993) and Snyder (1994). 39 See in this sense Timmermans in van der Woude (1988), p 246.

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Indeed, in examining the soft law instruments in the next four chapters, it will become clear that not all of them will fit in completely with the definition I have given in Section 4.3. Thus, some instruments may possibly be considered more as instruments laying down policy statements than soft law instruments. It may also actually become clear that a certain act is of a hard law and not of a soft law nature. However, all the instruments that will be discussed are usually regarded as Community soft law, and therefore it is relevant to include them here so that their place in the Community legal system may be clarified. The examination will show that various types of instruments can be distinguished, aiming at different objectives, fulfilling different functions and having their own different individual characteristics. The heterogeneity of Community soft law is further complicated by the fact that the adopted acts are often silent on why a particular instrument has been chosen. For instance, it may be far from clear why the Council has cast a certain decision in the form of a resolution and not for instance a recommendation; or why the Commission has opted for a communication and not a notice. The examination of the particular characteristics of these and other possible soft law instruments will not only shed light on the differences between them, but will also provide greater insight into the reason(s) that may underlie the choice of a particular instrument. This problem is reinforced by the fact that there are no rules (at least no obvious ones) for distinguishing between and denominating the different soft law instruments. Different terms are regularly used interchangeably, both by the EC institutions and in legal writing. This occurs frequently for instance as regards Commission communications and notices. Thus, acts that have been published as communications are referred to as notices and vice versa.40 Furthermore, comparison of different language versions also reveals differences in terminology.41 Another complicating factor in the examination to be conducted is that a certain soft law label may be ‘hiding’ another (soft law) instrument; certain soft law instruments may in fact cover other soft law instruments and be used as a kind of umbrella term or instrument. This applies in particular for Commission communications and Council resolutions and declarations, ‘hiding’ for instance codes of conduct.42 A substantive approach will have to be adopted in this respect, such that as regards

40 Eg by Meier (1990), Gardeñes Santiago (1992) and 41 See also Subsection 5.3.1 on this. 42 Cf the Communication from the Commission of

Rawlinson (1993).

17 July 1996 ‘A code of practice on the implementation of equal pay for work of equal value for women and men’, COM(96)336 final, and the Conclusions of the ECOFIN Council concerning a resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council on 1 December 1997 on a code of conduct for business taxation, OJ 1998, C 2/1.

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contents what is at issue is a code of conduct and not a communication, resolution or declaration. A further complication is that some soft law instruments may in fact be of different natures and fulfil different functions. This is the case in particular as regards communications, in respect of which a distinction must be made between informative communications, interpretative communications and decisional communications. To bring some order to the heterogeneity and proliferation of soft law instruments and to better understand the way they are used by the Community institutions, a classification of these instruments is called for. Before presenting such a classification, I will first discuss the prerequisites soft law instruments must fulfil if they are to function as an alternative to legislation. This discussion will in fact elucidate the functional classification that will follow.

4.5 PREREQUISITES FOR SOFT LAW TO FUNCTION AS AN ALTERNATIVE TO LEGISLATION

In order to assess the potentiality of soft law to function as an alternative to legislation, the above definition of soft law is insufficient. That is to say, if soft law is to function as an alternative to legislation, it does not suffice that a soft law instrument establishes rules of conduct; additional requirements will have to be fulfilled. In fact, it can be argued that soft law instruments can only function as legislation if they have the same general characteristics as legislative instruments except for their legally binding force.43 This means firstly that, like legislation, the rules of conduct established in a soft law instrument must be not merely of a normative nature, but also of a general normative nature, ie must lay down rules that are of general application, applying to objectively determined situations and to open categories of persons. Secondly, it means that these general rules of conduct must not be of a merely internal nature but also of an external nature, to be applied to outside parties such as Member States, individuals, companies etc. Further to this, the soft law instrument will also have to fulfil a similar function to legislation. In Chapter 2 it was observed that legislation fulfils an important instrumental function, namely to realise the internal market and Community objectives through positive integration measures aimed at either the unification or the harmonisation of national law and policy. The question is: which of the soft law instruments to be discussed in the

43 See

also Subsection 2.4.1.1 on these characteristics of legislation.

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next chapters can actually be considered to lay down such positive integration measures? So, in view of this, an examination is required of the kind of rules contained in the various soft law instruments, their addressees, the objectives aimed at and the functions they can be considered to fulfil. On the basis of their objectives and functions, a classification can be made and an analysis conducted of their functions specifically in relation to legislation. A functional approach of this kind will also enable us to lay bare the more underlying reasons behind the use and in particular the choice of a certain soft law instrument.

4.6

4.6.1

A FUNCTIONAL CLASSIFICATION OF SOFT LAW INSTRUMENTS

Three Main Categories

As already observed, a classification of soft law instruments can be deemed imperative to bring some order to the proliferation of possible soft law instruments and the heterogeneity of the phenomenon of soft law as such. As the point of departure for such a classification one could take for instance the resemblance to international or national soft law instruments, but also many other criteria such as form, contents, objective, adopting institution, addressees etc.44 However, the present aim of assessing the potentiality of soft law to function as an alternative to legislation necessitates in my view a classification on the basis of the function and objective of soft law instruments. A first major category of instruments to be distinguished can be designated preparatory and informative instruments. Within this category fall in particular Green Papers, White Papers, action programmes and informative communications. These instruments are adopted with a view to the preparation of further Community law and policy and/or providing information on Community action. Since it has been alleged, notably by the European Parliament, that the instruments falling within this category are being used as alternatives to legislation,45 they will be discussed in more detail in Section 5.2. For reasons to be set out there, however, it may be questioned whether they actually constitute soft law at all. A second category of soft law instruments are the interpretative and decisional instruments. These instruments aim at providing guidance as to the interpretation and application of existing Community law. More 44 Cf also Borchardt and Wellens (1987), p 692 ff. 45 Agence Europe, 22–23 December 1997, no 7127, p 10 and Agence Europe, 21–22 December

1998, no 7369, p 13.

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particularly, the decisional instruments indicate in what way a Community institution will apply Community law provisions in individual cases when it has implementing and discretionary powers. As such, they constitute the rules on the basis of which a Community institution will decide in a particular case. To this category belong notably the Commission’s communications and notices and also certain guidelines, codes and frameworks. These are in fact the instruments that bear resemblance to the administrative rules or policy rules known as such in national legal systems. These instruments will be considered in detail in Section 5.3. The third category covers what one could call steering instruments. These aim at establishing or giving further effect to Community objectives and policy or related policy areas, sometimes in a rather political and declaratory way but often also with a view to establishing closer cooperation or even harmonisation between the Member States in a nonbinding way. This category can be further subdivided into formal steering instruments, actually provided for by Article 249 EC, and non-formal steering instruments that have occurred as such in Community practice. These will be discussed respectively in Sections 5.4 and 5.5. The classification thus made is not entirely felicitous. In particular, it must be acknowledged that the concrete contents of a soft law act may lead to the conclusion that it actually (also) falls within another category. Thus, communications may at the same time be informative and interpretative or interpretative and decisional. Furthermore, when considered only separately, these categories do not do justice to the phenomenon of soft law in EC law. Yet, I deem that if the categories are viewed in conjunction, this classification makes it possible to establish the different roles played by soft law in the Community legal order and in particular in relation to Community legislation. Moreover, the first and second categories will turn out to have been recognised as such, albeit rather implicitly, in particular in the case law of the Community courts and in a Protocol and Declaration attached to the EC Treaty.46 4.6.2

Three Main Functions

The classification made above on the basis of the objectives and functions of the various soft law instruments already says something about their relation to legislation. This relation can be elucidated yet further by distinguishing three main functions of soft law: the pre-law and para-law functions of soft law have already been identified very concisely by Thürer,47 and by extension, a post-law function can also be established. 46 See further Subsections 47 Thürer (1990), p 133.

7.3.3 and 7.3.4.

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The pre-law function of soft law can be understood in two different ways. Firstly, it can be considered to refer to the fact that a particular instrument is adopted with a view to the elaboration and preparation of future Community legislation and policy. It is then adopted with a view to assessing the desirability or necessity of this, and the possible contents. Secondly, the pre-law function can also be understood in a more substantive way, in the sense that soft law acts pave the way for the adoption of legislation in the future. That is to say, soft law acts may facilitate the subsequent adoption of legislation by providing or increasing the basis of support for the rules contained therein. The post-law function is fulfilled by soft law instruments that are adopted subsequent to existing Community law with a view to supplementing and supporting both primary and secondary EC law. This may relate to the putting into effect or further implementation of legislation or to facilitation of the correct interpretation and (uniform) application thereof. In this respect, the existing rules may simply be restated, but new rules may also be established in line with these, which as such are not (necessarily) inherent to the existing legal framework. The para-law function of Community soft law can be said to refer to its use instead of or as an alternative to legislation.48 A variety of situations may hide behind this function. Sometimes, soft law is intended only to serve as a temporary alternative to legislation and will in any event be replaced by legislation, which may in fact already be in the pipeline. Sometimes, however, it is intended to function as a permanent alternative to legislation, in particular where legislation is merely held out as a prospect in the event of unsatisfactory or non-compliance with the soft law act.49 Yet, as will be seen, a soft law act fulfilling a para-law function does not necessarily aim at the same goals as legislation. It seems tempting to argue at this point that preparatory and informative instruments fulfil a pre-law function, interpretative and decisional instruments a post-law function and steering instruments a para-law function. However, although to a considerable extent this will be found to hold true, it is also the case that these instruments may fulfil more than one function at a time. Thus, the recommendation, designated as a formal steering instrument, can fulfil not only a para-law function, but also a pre-law and post-law function.

48 According

to Thürer (1990), p 133, at issue are: rules that

are structured in several respects in a comparable way to legal rules (‘para-law’) meaning that various principles of law can be applied to them by analogy. 49 See

Subsection 5.4.3 for an example.

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APPROACH AND DELIMITATION

I have explained above that a classification of Community soft law is necessary to bring some order to the proliferation of Community soft law instruments and their heterogeneous nature. Further, with a view to assessing the potentiality of soft law to function as an alternative to legislation, I have chosen a functional classification. This obviously requires an examination of the functions fulfilled by the different soft law instruments, but it also requires an examination of the objectives they aim at and whether or not they lay down rules of a general normative and external nature. This also entails a scrutiny of the soft law instruments as to the reasons behind their choice and as to their substantive and personal scope; in what areas do they occur and/or what subjects do they cover, what are their contents and to whom are they addressed? With a view to assessing the magnitude of the phenomenon of soft law, it will also be necessary to look at how often soft law instruments are adopted and which ones are most frequently adopted. With regard to whether soft law can function as a satisfactory alternative to legislation, it can already be deduced from Chapter 3 that democratic legitimacy and the rule of law impose certain requirements in this respect. With a view to this assessment, it is also important to examine whether or not soft law acts mention a legal basis upon which they are founded and to know in what way the acts were adopted. In particular, what other institutions or organs were involved in the adoption process and what was the role notably of the European Parliament? Were any outside actors or parties involved in this process? Finally, it is also necessary to look into the issue of notification and publication as well. Are soft law instruments published, and if so where, and/or are they made known in any other way to those to whom they are addressed? Clearly, this approach entails a detailed examination of many soft law acts adopted by the Community institutions. This fact-finding mission has been performed mainly by means of electronic data search systems, in particular CELEX and OJ-Online. The documents found in this way have been scrutinised with respect to the points mentioned above. Although these systems are not yet perfect and may not contain all the acts ever adopted, the quantity of documents found and scrutinised must be considered a representative sample. In the next chapter, the outcome of the examination thus performed will be presented, making use of many examples. Yet, given the scope of this examination, it will also be clear that it has been necessary to impose certain limits. A first limitation has already been set out in Subsection 4.4.1. A second limitation is that the examination is concerned only with Community soft law and not with soft law that could in fact be characterised as international soft law. That is to say,

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I have excluded soft law acts that have been adopted in the framework of the application of international treaties to which the EC has become a party, such as the recommendation adopted pursuant to the European Convention on the Protection of Animals Kept for Farming Purposes, which was at stake in the World Farming Case.50 I have also excluded acts that are adopted solely by the Member States, even if adopted by the Representatives of Government meeting in the framework of the Council.51 It may also be recalled here that the restriction to EC soft law entails that I will not deal with instruments adopted under the ECSC and Euratom Treaties and the second and third pillars of the EU.52 The examination will thus be confined to soft law acts adopted in the framework of the first pillar, ie the EC Treaty. This is not to say, however, that these soft law acts have been explicitly based on a provision of the EC Treaty. It will be seen that the lack of such a legal basis may in fact have induced the recourse to soft law. A further limitation is that I will not look at the acts adopted by all the EC institutions, but in particular at those adopted by the Commission and the Council, which seem to be of greatest importance. Declarations attached to the EC Treaty itself will not be considered either, although it is clear that they are non-binding. The picture that will thus emerge from the examination of the various soft law instruments will enable an evaluation of the soft law instruments that are actually proposed and used as alternatives to legislation, and of their potentiality to function as such. Furthermore, it will then also be possible to draw some conclusions as to their possible contributions and threats to the aims of improving the effectiveness, legitimacy and transparency of Community action.

50 Case C–1/96 Compassion in World Farming [1998] ECR I–1251. 51 See in more detail on their distinction from Council acts, Subsection

regards their relevance for the question of competence, Subsection 7.3.2. 52 See also Subsection 1.7.3.

5.5.1 and also as

5 Categories and Functions of Soft Law 5.1

INTRODUCTION

I

N THIS CHAPTER, the main categories of Community soft law instruments, identified in Chapter 4, will be discussed in more detail. These categories include preparatory and informative instruments (Section 5.2), interpretative and decisional instruments (Section 5.3), and formal and non-formal steering instruments (Sections 5.4 and 5.5). In these sections, the most important findings will be presented that have resulted from an in-depth examination of these instruments as to their nature and function, substantive and personal scope, legal basis, adoption process, publication and notification.1 On the basis of this examination, some conclusions will be drawn as to whether the examined instruments can actually be considered to be soft law, as to their potentiality to function as an alternative to legislation, and as to their possible contribution to the effectiveness, legitimacy and transparency of Community action (Section 5.6).

5.2

PREPARATORY AND INFORMATIVE INSTRUMENTS

The distinction between preparatory and informative instruments is made on the basis of their primary purpose. This distinction should not, however, be regarded as absolute. That is to say, preparatory acts may well be to a certain extent informative, and vice versa. Preparatory instruments encompass Green Papers, White Papers and action programmes, adopted by the Commission. The category of informative instruments is made up of inter-institutional communications, purely informative communications and individual communications. These will be discussed separately.

1 This study is presented in a more elaborate way in the doctoral thesis edition: Senden (2003), Chapters 5 to 8. For an overview and references of the acts on the basis of which this examination has largely been conducted, see the Table of Soft Law Acts.

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5.2.1 5.2.1.1

Preparatory Instruments Green Papers

Green Papers are instruments used solely by the Commission, and their use dates back to the early 1980s. Since then, but in particular since 1993, the use of Green Papers has steadily increased. On average, five to seven Green Papers are now adopted every year, with a peak in 1996 when the Commission adopted 14 Green Papers. The use of Green Papers as such seems to have been taken from the British legal system, but it also occurs for instance in Canada and the United States. In the UK, Green Papers are government policy documents for discussion in parliament. The designated name is explained by the fact that originally such documents were bound in green.2 The Green Papers usually start with an overview of the present situation and regulatory framework in a particular area and then identify the problems and challenges in this respect. On the basis thereof, the need for future action is analysed and options or suggestions for action are presented. However, as yet these are not specific and do not contain concrete proposals. According to the Commission, Green Papers are ‘reflection documents for discussion,’3 drafted with a view to public debate and consultation. This fits in with the aim of consulting interested parties more frequently and on a more regular basis before proposing any new Community legislation or action. Over the last decade, it has become more of a habit to formulate specific questions in the Green Papers, to which the addressees are called upon to respond, but other comments remain equally welcome of course. Usually, they contain a deadline for transmitting these, and a postal and/or e-mail and/or fax address is now given. The primary objective of Green Papers can thus be characterised as to gather the relevant facts and views that exist on a particular issue, in order to be able to decide on the next steps to take; whether to propose legislation and, if so, in what form, and/or take any other kind of action. So, they do not in themselves contain any legally binding — general or individual — rules of conduct, but aim only at gauging the desirability or necessity of the future development thereof. Their adoption must therefore be seen against the background of the preparation and further development of Community law and policy. As such, the Green Paper can be typified as a preparatory instrument and said to fulfil a pre-law function in the Community law context.4

2 See Webster’s Third New International Dictionary of the English Language Unabridged. 3 Commission Report for the Reflection Group (1995), at p 39. See also COM(94)333 final, p 3. 4 The different functions of Community soft law that I distinguish (pre-law, post-law and

para-law) were discussed in Subsection 4.6.2.

Categories and Functions of Soft Law 125 Subsequent to the consultation process, the Commission often draws up a communication on the follow-up to be given to the Green Paper.5 Sometimes, this follow-up consists of the presentation of a White Paper.6 Both of these documents give information on the outcome of the debate on the Green Paper. Answers and comments to Green Papers of the other EC institutions and of the Economic and Social Committee and the Committee of the Regions are laid down in resolutions (EP, Council), conclusions (Council) and opinions (ESC, COR). Reactions to the Green Paper are sometimes published on the Internet as well. Green Papers are drawn up in a wide variety of areas, in both the social and the economic sphere; relating to the single market, competition law, social law, food law, telecommunications, patent and copyright law, the environment, transport, agriculture, etc. Sometimes they are of a very general substantive scope, such as the Green Paper on European Social Policy and the Green Paper on Community Energy Policy. But they may also be of a far more limited scope, relating to very precise topics. The Green Paper on Access to Justice of Consumers and the Settlement of Consumer Disputes in the Single Market and the Green Paper on Vertical Restraints in EC Competition Policy are examples of this. Green Papers are addressed to all interested parties. Sometimes these are spelt out in more detail; the Member States, management and labour, business, economic operators, NGO’s, representative organisations, institutions, consumers, researchers, practitioners, other EC institutions, the ESC, the COR, etc. But even when parties are specified, it is generally added that any other interested party may submit its comments as well. As a rule, Green Papers do not indicate by virtue of what competence or on what legal basis they have been adopted. Nor do they shed much light on the way in which the Commission proceeds in their adoption. The exceptions to this rule show that they do not come out of the blue and may be drafted with the involvement of others, in one way or another, but apparently, no single procedure or approach seems to be used. A Green Paper that gives a rather full account in this respect, is the Green Paper on vertical restraints in EC competition policy. According to the Commission, it carried out a fact-finding exercise in the form of interviews before drawing it up. Several dozen manufacturers, retailers and associations, both at European and national level, were contacted, as well as research institutions and individuals with a particular knowledge on the subject at issue. Furthermore, meetings and round-table discussions were held.

5 Eg

Standardization in the European economy. Follow-up to the Commission Green Paper of October 1990, COM(91)521 final. 6 See also Subsection 5.2.1.2 below.

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Green Papers are published as COM documents. Yet, it must be noted that sometimes they are published under the heading of ‘Communication from the Commission’.7 They may also be published on the Internet, on the home page of the Directorate-General that has issued the Green Paper. Some Green Papers are also said to be widely circulated or distributed and/or to consult the main parties directly.8 The Green Paper on the Urban Environment was thus to be sent not only to the EP, the Council and the ESC, but also to the mayors of major towns in Europe and to professional and voluntary groups interested in urban management issues. Overall, however, it appears that Green Papers provide little information as to the ways in which they are made known to the possible interested parties. This lack of information at least justifies the conclusion that a general approach or procedure seems to be lacking in this respect as well, and one may wonder whether Green Papers that are silent on this particular aspect are notified to interested parties at all. 5.2.1.2

White Papers

White Papers are also an instrument only of the Commission. They are less frequently adopted than Green Papers. The first, and very well known, White Paper was adopted in 1985: the White Paper on the Completion of the Internal Market. It seems to be 1993 before the next one was adopted, since when there have been about two a year. Their use too seems to have been taken from national (British) legal tradition. In the UK, a White Book is an official report of government affairs, bound in white.9 According to the Commission, a Community White Paper ‘set[s] out general proposals on an issue’10 and ‘is a document presenting a detailed and debated policy both for discussion and political decision’.11 This makes clear that White Papers serve a twofold objective. On the one hand, they constitute documents for discussion and consultation; on the other, they also aim at laying down the main lines or strategy of action for the

7 Eg Green Paper on the development of the common market for telecommunications services and equipment. See Subsection 5.2.2.1 below, on the different types of communications that can be distinguished. 8 But this is not always further specified. Cf the Green Paper on the development of European standardization: action for faster technological integration in Europe and Green Paper on Partnership for a new organisation of work. 9 Webster’s Third New International Dictionary of the English Language Unabridged. 10 Commission Report for the Reflection Group (1995), p 39. 11 As the Commission explained on the Internet: http://europa.eu.int/en/record/ white.html. More recently, it has put the emphasis on the ‘official set of proposals in specific policy areas’ that a White Paper contains. See http://europa.eu.int/comm/off/white/ index_en.htm.

Categories and Functions of Soft Law 127 future. To this end, they usually contain concrete proposals for action. Depending on which of the two aspects is emphasised, White Papers may actually differ quite considerably; some White Papers are more directed towards debate, whereas others may already contain (detailed) work programmes or timetables for action.12 For the same reasons as given above in respect of Green Papers, White Papers can be typified as preparatory instruments, or, instruments that fulfil a pre-law function. But, generally speaking, White Papers often go a step further than Green Papers, in that they contain (concrete) proposals. This is also illustrated by the fact that some White Papers are adopted as an explicit follow-up to a Green Paper.13 However, it is not necessarily the case that a Green Paper precedes a White Paper, nor that a Green Paper is followed by a White Paper. In any event, they usually appear not to aim at such a wide-ranging consultation process as the Green Papers do. This can also be inferred from the fact that, in general, they contain no deadlines before which comments have to be transmitted, nor addresses to which these can be sent.14 Moreover, in cases where a Green Paper has preceded a White Paper, one could also doubt whether such consultation would be useful. White Papers too are drawn up in many different areas, but not in such a wide variety as Green Papers. In fact, their more limited use can also explain to some extent their (hitherto at least) more limited substantive scope. Many of them relate to the establishment of the internal market and to economic and social life with a view to guaranteeing employment. A number of others concern energy policy and transport policy. The more recent White Paper on European Governance obviously focuses on institutional matters. They are often of a rather general nature, covering for instance social policy or energy policy as a whole. Occasionally they are more limited in scope, such as the White Paper on Sectors and Activities excluded from the Working Time Directive. White Papers do not indicate very clearly to whom they are actually addressed. Although interested parties may react to them, they seem to be aimed primarily at the Member States and other Community institutions. Like Green Papers, White Papers do not indicate a specific competence or legal basis by virtue of which they have been adopted. As regards the adoption procedure, the situation is clearest when a Green Paper

12 The White Paper on Education and Training is an example of the first type of Paper. The White Paper on the Completion of the Internal Market is a very clear example of the latter type of Paper. 13 Eg the Green Paper on European Social Policy. Options for the Union, followed by the White Paper on European Social Policy: A Way Forward for the Union. 14 An exception to this rule is the White Paper on European Governance, which clearly aims at a very wide-ranging debate and also contains a deadline for transmitting comments.

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has preceded the White Paper. The White Paper then normally gives information on or a summary of the outcome of the debate on the Green Paper. According to the Commission, the shared values that can be identified on the basis of the consultation process pursuant to the Green Paper form the basis for the White Paper. The White Paper on European Social Policy15 constitutes an example in this respect, as does the White Paper — an Energy Policy for the European Union. When there is no Green Paper, it may be rather vague what the actual proposals of the Commission in the White Paper are based upon and who else has been involved in their development. Practice gives different indications in this respect. Again, it has to be concluded that there is no standard approach, at least not a visible one, and that much seems to depend on the issue in question.16 White Papers too are published as COM documents, sometimes under the heading of ‘Commission Communication’. They contain no information at all on other possible ways in which they are presented to their addressees, but it is clear that they are now regularly published on the Internet as well. 5.2.1.3

Action Programmes

Action programmes, sometimes called general programmes or action plans, are drawn up and adopted, in the first instance at least, by the Commission. As will be seen below, the Council may at a later stage adopt them as well. The first programmes date back to 1961: the General Programme for the abolition of restrictions on freedom of establishment and the General Programme for the abolition of restrictions on freedom to provide services. In 1969 and 1973, the General Programmes for the elimination of technical barriers to trade in goods were adopted. The first Environmental Action Programme was also adopted in 1973. The adoption of action programmes has become a fairly well established EC practice, at least since the mid-1980s. It is difficult to give precise numbers in this respect, but since the beginning of the 1990s, around four action programmes a year have been adopted. Action programmes go further than Green Papers and White Papers, as they do not aim at consultation and debate, and are more concrete in that they set the agenda in a certain area, listing the concrete legislative and/or other kinds of action to be

15 See

also the ‘Contributions to the Preparatory Work for the White Paper on European Social Policy’, Social Europe, no 2, (1994), Office for Official Publications of the EC, Luxemburg, 217 pp. 16 See for instance the White Paper on Energy for the Future: Renewable Sources of Energy, which draws not only on the preceding Green Paper, but also on an EP resolution calling upon the Commission to formulate an action plan for a Community policy in this respect. The adoption of the White Paper on European Governance was preceded by hearings.

Categories and Functions of Soft Law 129 developed within a certain time space. So, even though White Papers may already include a detailed work or action programme, these programmes are often adopted separately, whether or not they follow a Green and/or White Paper.17 Since action programmes are clearly adopted with a view to providing the basis for the development of future Community law and policy, they can also be considered as a preparatory instrument, fulfilling the pre-law function. Yet, to some extent they can be said to lay down internal rules of conduct, even binding ones, in as far as the proposals contained in the action programme have to be carried out by the Community institution(s) concerned. A distinction must be made here between these action programmes and the work programme which the Commission now adopts every year.18 This programme is of a more general nature, as it sets out the priorities and actions, covering all areas of Community policy, to be developed for the year to come. The adoption of this programme must be seen more in the context of the improvement of inter-institutional relations, notably between the EP and the Commission.19 Action programmes are adopted in a wide variety of areas and may cover broad areas as well as very circumscribed ones. Action programmes of a very general nature have been adopted in the social field, with respect to the environment and to strengthening the competitiveness of European industry. Specific action programmes have been adopted for instance for the forestry sector, on injury prevention in the context of the framework for action in the field of public health, on the improvement of awareness of Community law within the legal professions, and on the promotion of milk consumption and expansion of the markets for milk and milk products. The period of time covered by action programmes may vary considerably, the shortest covering only one year, others two,20 three or four years and the longest five.21 Upon their expiry, they are often renewed, but they can also be of an incidental nature. According to the action programmes themselves, it appears that the Commission is usually responsible for their implementation. 17 The

Social Action Programme was adopted subsequent to a Green Paper and a White Paper. See also note 13 above. 18 Since the early 1990s. Most recently, Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, The Commission’s Legislative and Work Programme for 2003, COM(2002)590 final. 19 See Westlake (1995), pp 19–21. 20 Cf the Action Programme in the field of transport infrastructure with a view to the completion of an integrated transport market, adopted by Council Regulation 1738/93, OJ 1993, L 161/4. 21 Cf the Environmental Action Programmes, those on equal opportunities for women and men, and those on safety, hygiene and health at work.

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Sometimes other addressees are also specified, notably the Member States or management and labour, for example.22 As regards the identification of a legal basis, the situation is quite different from that of Green Papers and White Papers. That is, many action programmes do in fact indicate a legal basis — either specific or general — in the EC Treaty. This is connected with the fact that in a number of cases action programmes are formally adopted, ie established in the form of one of the binding instruments of Article 249 EC, usually the decision.23 Some of these specific legal bases do explicitly provide for the adoption of ‘programmes’, ‘action programmes’ or ‘general programmes’. Thus, the Community Action Programme promoting non-governmental organisations primarily active in the field of environmental protection was adopted on the basis of Article 130S(3) (now 175(3)) EC, which provides explicitly for the adoption of ‘general action programmes’ in accordance with the co-decision procedure. Although this provision does not prescribe that these programmes be laid down in one of the binding Article 249 instruments, this particular programme was laid down in a Council decision.24 Other formally adopted action programmes have been based on Treaty articles that do not provide specifically for the adoption of ‘programmes’, but equally do not prescribe any other particular instrument. These are action programmes based on Articles 100a (now 95), 128 (now 151),25 235 (now 308)26 and 75 (now 71) EC, which provide respectively for the adoption of ‘measures’, ‘incentive measures’, ‘appropriate measures’ and ‘common rules/measures/appropriate provisions’. Action programmes adopted on the basis of the last of these articles have been laid down in regulations.27 The choice of legal basis of action programmes is not always undisputed, as will be seen in Subsection 7.3.3. 22 Cf eg the Council Resolution of 21 May 1991 on the third medium-term Community action

programme on equal opportunities for women and men (1991–1995), OJ 1991, C 142/1. 23 Although it should be noted that sometimes they are laid down in a decision sui generis, as the one at stake in Case 242/87 Commission v Council (Erasmus) [1989] ECR 1425, or in a regulation. 24 Council Decision 97/872, OJ 1997, L 354/25. Interestingly, as a consequence of the ratification of the Treaty of Amsterdam a number of these specific legal bases for ‘programmes’ have been removed or replaced by the instrument of the directive. See eg Article 44(1) (ex Article 54(1)) and Article 52(1) (ex Article 63(1)) EC. 25 Respectively Decision 210/97/EC of the EP and the Council of 19 December 1996 adopting an action programme for customs in the Community (Customs 2000), OJ 1997, L 33/24 and Decision 2228/97 of the EP and the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (Raphael Programme), OJ 1997, L 305/31. 26 Eg Council Decision 89/457/EEC of 18 July 1989 establishing a medium-term Community action programme concerning the economic and social integration of the economically and socially less privileged groups in society (the ‘Poverty 3 programme’), OJ 1989, L 224/10. 27 Eg the Action Programme relating to transport infrastructure and the completion of an integrated transport market and its successor, established respectively in Council Regulation 3359/90, OJ 1990, L 326/1 and Council Regulation 1738/93, OJ 1993, L 161/4.

Categories and Functions of Soft Law 131 It seems that formal adoption of action programmes is not always possible or desirable, given that some remain Commission documents or are adopted only by means of an instrument such as a resolution, either by the Council alone or by the Council and the Representatives of the Governments of the Member States, meeting in Council. These action programmes refrain in general from indicating a particular Treaty provision as their legal basis.28 The Commission draws up action programmes on its own initiative or may be called upon to develop such a programme by the Council and/or the Member States, possibly by means of a resolution.29 When the action programme remains a Commission document, the involvement of other parties may be fairly limited. The EP, ESC and COR will generally issue their opinion on it and, since the action programmes sometimes follow Green and/or White Papers, the Commission may also take account of points of view expressed by interested parties. Consultation of specific parties may also occur.30 However, because action programmes are quite often established by means of formal, binding Article 249 instruments, their adoption is much more formalised than that of Green Papers and White Papers. When this is the case, the Commission casts the programme in the form of a proposal for legislation. As a consequence, the other Community institutions are also involved in the adoption process of action programmes. The extent of this involvement, especially as regards the EP, will then depend on the chosen legal basis and the decision-making procedure which this lays down. The opinions of the ESC and COR will also have been considered. When the action programme remains purely a Commission act, it is published only as a COM document. I have found no information indicating whether action programmes adopted in this non-formal manner are notified or made known to the Member States or industry in any other way. In the case where an action programme is proposed to the Council or to the Council and the EP jointly, the proposal is published in the 28 Cf

the Third Action Programme on equal opportunities for women and men that was adopted by the Council by means of a resolution, without mentioning a legal basis and merely calling upon the Member States to implement the Communication of the Commission on the Action Programme. The Fourth Action Programme in this field was laid down in Council Decision 95/593/EC of 22 December 1995 on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000), adopted on the basis of Article 235 (now 308) EC. 29 See eg the Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council, of 16 December 1991 concerning a Community action programme on the accessibility of transport to persons with reduced mobility, OJ 1992, C 18/1. The question whether there can be a duty to adopt action programmes, where provided for in the Treaty, will be discussed in Section 8.3. 30 For instance, in the adoption of the (annual) programmes for the official checking of foodstuffs, established in recommendations, the Standing Committee for Foodstuffs is consulted.

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C-series of the Official Journal. When adopted in the form of a decision or regulation, it will then be published in the L-series. When adopted in the form of a resolution, in the C-series.

5.2.2 5.2.2.1

Informative Instruments Informative, Interpretative and Decisional Communications

The most important informative instrument is the informative communication. Yet communications are far from homogeneous and they do not play an unequivocal role in the Community law system. This can be seen immediately from the legal writing on communications.31 It is therefore necessary to distinguish first between the different types of communications as such, before looking at informative communications in more detail. Although not an exhaustive list, the following are some of the classifications made in respect of communications. One of the first authors to make such a classification was Melchior, in a still highly noteworthy contribution dating from 1979.32 He did this on the basis of the addressees of communications, distinguishing between the Commission communications directed to the Council and the Commission communications directed to the public, in particular economic actors. Although his description of these two types of communications makes clear that in themselves they may differ in nature and pursue different objectives, his distinction is not very helpful with a view to identifying the functions that soft law instruments fulfil. It was some ten years before other classifications were made, this time on the basis of the objectives pursued by the communications. Meier thus distinguished between Leitlinien-Mitteilungen and Informations Mitteilungen.33 Mattera, a Commission administrator, made a more detailed subdivision, which in my view does more justice to the different manifestations of communications in the Community law context. More particularly, he distinguished communications informatives, communications interprétatives and communications déclaratoires or décisoires.34 I will largely 31 See

Melchior (1979), p 243; Mattera (1988), pp 28–31; Meier (1990) and Gardeñes Santiago (1992). Quite remarkably, Borchardt and Wellens (1987) and (1989) dealt only very summarily with communications in their extensive study on Community soft law. 32 Melchior (1979), pp 243–257. Another valuable early contribution on the phenomenon of communications in EC law is that of Mortelmans (1979), pp 16–30. This does not give a categorisation, however, but concentrates on the issue of legal protection. See further Kapteyn (1985), pp 77–87, and Leclerc (1998), p 161. 33 Meier (1990), p 1306. 34 Mattera (1988), pp 28–31. The last of these types had in fact already been identified by Melchior (1979), p 245. Cf also Gardeñes Santiago 1992, p 936, and Lauwaars 1993, pp 18–25. In his opinion in Case C–57/95 France v Commission [1997] ECR I–1627, A-G Tesauro upheld

Categories and Functions of Soft Law 133 follow this tripartition of communications into informative, interpretative and decisional, as it fits in with the functional approach I have adopted. Some remarks are in place, however, before examining the three types of communications in detail, partly in this section (informative communications) and partly in the next (interpretative and decisional communications). Firstly, although the interpretation I will give to these types of communications largely coincides with that of Mattera, I will take a far broader view of the category of informative communications than he does. Secondly, it must be noted at this point that the tripartition is not totally felicitous, as not all communications will fit clearly into (only) one of these categories: communications may for instance be simultaneously informative and interpretative, or interpretative and decisional. Much will depend on the actual contents of the communication in question. Also illustrative in this respect is the fact that authors who uphold this classification (to some extent at least), have cited the same examples to illustrate different categories.35 Nonetheless, the tripartition is useful, as it enables some order to be brought to the wide range of communications found in Community law practice. As the denomination itself indicates, informative communications essentially intend to provide information on Community action. These communications have in common that they do not aim at laying down any legally binding, (general) rules of conduct. Yet, it appears that there may be several different motives underlying the adoption of these communications. On the basis of these, a further subdivision can be made between what I will call inter-institutional communications, purely informative communications and individual communications.36 5.2.2.2

Inter-Institutional Communications

Mattera limited the category of informative communications to the communications addressed by the Commission to the Council and the

this tripartition and the interpretation given to these terms by Mattera, however without reference. 35 Thus,

Gardeñes Santiago (1992), who follows the tripartition made by Mattera (1988), considers also as interpretative communications those falling within the category of decisional communications. Mattera considers as interpretative, rightly in my view, the Commission Communication on the decisions of the ECJ of 5 May 1982 and 21 May 1985 (the Gaston Schul cases) relating to the importation by an individual of used goods purchased in another Member State from an individual, OJ 1986, C 13/2, whereas Meier (1990) considers this to be an Informations-Mitteilung. 36 These categories are in fact all recognised by Melchior (1979), but described in a different way.

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European Parliament.37 These communications are used very frequently by the Commission, considerably outnumbering interpretative and decisional communications.38 The foremost objective of these communications is the stimulation of inter-institutional dialogue, with a view to the further development of Community law and policy; hence their designation as inter-institutional communications. In these communications the Commission usually expresses its views or position in respect of a certain problem or issue, indicates the actions that might be taken and possibly also formulates its conclusions or proposals.39 As such, they can be said to be not merely informative, but also to fulfil a pre-law function.40 Some examples in this respect are the Communication concerning the consequences of the information society for the policy of the EU — Preparation of the following steps, and the Communication on a Community strategy to combat acidification. Even concrete action programmes may be put forward in this way, as the Communication on the EU Action Plan: Satellite communications in the Information Society illustrates. Sometimes, however, they are less far-reaching, in that they are confined to more or less providing information on the evaluation of existing policy. Others may aim at providing information on the outcome of the public debate that has taken place pursuant to Green Papers and/or White Papers. Examples of these are the Communication on the progress report on the Euromediterranean partnership, the Communication on the evaluation of the trade electronic data interchange systems (Tedis) programme and the Communication regarding the consultation on the Green Paper on a numbering policy for telecommunications services in Europe. Given the nature and function of inter-institutional communications, they occur in a wide variety of areas and relate to any issue within the scope of Community policy. This can already be seen from the examples given above: they may deal with very general issues, but also very specific ones. By their very nature, the personal scope of these communications is limited to other Community institutions or organs, in particular the Council and the EP, and sometimes also the ESC and COR. Very occasionally, they have been addressed to the EMI. As such, these communications can also be designated as internal acts. It is the Commission in particular that adopts inter-institutional communications, but sometimes they are followed by the adoption of inter-institutional agreements by all the institutions concerned. An

37 Mattera (1988), p 28. 38 Thus, in 1997 alone about 39 Cf Mattera (1988), p 43. 40 Cf Melchior (1979), p 243.

70 inter-institutional communications were adopted.

Categories and Functions of Soft Law 135 example in this respect is the Communication from the Commission on the application of the subsidiarity principle, which was followed by an inter-institutional agreement of the Commission, Council and European Parliament.41 Inter-institutional communications do not indicate a legal basis upon which they are founded. Furthermore, they may be adopted even before it has been decided whether there will be a consultation process at all in respect of a certain issue. Consequently, Commission officials may draw them up without any other (outside) involvement. If they concern the evaluation of a certain policy, the actual evaluation report may have been drawn up with outside involvement. Usually, they are only published as COM documents.42 Sometimes, however, they are subsequently published in the C-series of the Official Journal. 5.2.2.3

Purely Informative Communications

Purely informative communications are also adopted very frequently, although less so than the inter-institutional ones. Only the Commission seems to adopt this kind of communication. Purely informative communications are those communications in which a rather factual account is given of Community action, simply with a view to making this action public and informing those interested in it.43 They provide information on the state of affairs and/or action that the EC proposes or undertakes in certain areas. This is illustrated by the communications on the reactions and/or follow-up to White or Green Papers, such as the ‘Communication on financial services: enhancing consumer confidence. Follow-up to the Green Paper on “Financial Services: Meeting Consumers’ Expectations”’. These communications may, however, also be adopted independently of such a consultation process, as shown by the communications adopted with a view to the introduction of the Euro. These communications concern the impact of the introduction of the Euro on capital markets; the impact of the changeover to the Euro on Community policies, institutions and legislation; the practical aspects of the use of the Euro and the use of the Euro symbol. As regards their contents, communications of this type may in fact be very similar to inter-institutional communications. The difference from the latter lies notably in their objectives and addressees. Whereas the inter-institutional communications are directed to other EC institutions with a view to furthering Community policy in consultation with them,

41 On inter-institutional agreements, 42 Cf Melchior (1979), p 243. 43 Cf also Melchior (1979), p 244.

see also Subsection 5.5.4.

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the purely informative communications aim only at informing the general public of EC policy and of what is happening at Community level. So, they do not in fact fulfil a pre-law function, but merely a publicity function. In this respect, it is also important to observe that quite frequently other kinds of acts are published under the heading of ‘Communication of the Commission’, such as Green Papers, White Papers, action programmes, recommendations and codes of conduct. In that event, the term ‘communication’ is used in the proper sense of the word, in that it intends only to provide the information that a particular act has been adopted. This means that ultimately one has to look at the actual contents to know what kind of act is really at issue and what its binding force will be.44 It already follows from the foregoing that not only the substantive scope, but also the personal scope of this type of communications is very broad. They are often not addressed to anyone in particular; in fact, they seem to be adopted and published for the benefit of any interested party. This may be the Member States, economic operators, the general public, etc. So, these communications can be said to be external acts, directed to outside parties. Sometimes they are both external and internal acts at the same time, namely when they are directed to other EC institutions as well. Purely informative communications do not indicate a legal basis either, and the Commission does not follow a specific adoption procedure. Generally, they are only published as COM documents. However, their publication in the C-series may occur when they in fact cover another act, such as a code of conduct or a recommendation. In the latter case they may even be published in the L-series of the Official Journal. They do not contain information as to whether they are notified in any other way. 5.2.2.4

Individual Communications

The third and last subcategory of informative communications concerns communications on the (proposed) application of Community law in a concrete case.45 Hence, I refer to these as individual communications. In practice, this information is given by means of both communications and notices, which adds support to the view that these in fact constitute similar instruments.46 Sometimes, these communications are confined to

44 See in particular also Subsection 6.5.2. 45 Cf also Melchior (1979), at p 244. 46 See further Subsection 5.3.1 on this.

Categories and Functions of Soft Law 137 informing those interested of the result to which the application of Community law has led in a given instance. The communications on the appointment of certain persons, the notices on the common position of the Council in the co-decision procedure, the notices of the date of entry into force of international agreements and the notices of the expiry of certain anti-dumping measures are examples in this respect. As such, they resemble the purely informative communications. Often, however, these communications also invite interested parties to respond to this proposed application. As such, they can then be designated as external acts and considered to fulfil not only an informative but also preparatory function, adopted and presented with a view to preparing a (binding) decision in a particular case. Thus, the Commission gives notice to the parties concerned on decisions that it has to take concerning the compatibility of state aid with the common market, in order to enable them to submit their comments. Similarly in the area of competition law, the Commission adopts notices concerning applications for negative clearance or individual decisions to grant an exemption pursuant to Article 81(3) EC. Notices regarding alliance agreements between airline companies are also frequent, as well as notices on the initiation of a review of anti-dumping measures and on the initiation of an anti-dumping proceeding. The substantive scope of these individual communications is quite limited, as necessarily they concern only those areas in which the Commission has the competence to enforce Community law directly, that is to apply it in individual cases. As the above examples already reveal, these are in particular the areas of competition law, anti-dumping and state aid. In view of this, it is scarcely surprising that these individual communications are often of a very precise or specific nature. In addition, the notices of invitation to tender and the notices on the organisation of open competition can also be designated as individual communications. As regards the personal scope of these individual communications, their addressees are often not further identified. In a very general way, they invite ‘interested parties’ to submit their comments on the proposed action. Sometimes, however, the addressees are more specified, by reference to the Member States, importers, producers or users. The Commission has been entrusted by the Council with the task of direct enforcement of the competition law rules, notably by means of Regulation 17/62, adopted pursuant to (ex) Article 87 EC. The communications and notices adopted in this area are based in particular on Article 19(3) of this regulation, providing for the possibility of interested third parties to submit their observations on the Commission’s proposed negative clearance or a decision in application of (ex) Article 85(3) EC. The communications relating to state aid are adopted directly pursuant to Article 93(2)

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(now 88(2)) EC, which provides that the Commission decides whether state aid is compatible with the common market ‘after giving notice to the parties concerned to submit their comments’. It is quite impossible to give any numbers of the individual communications that are adopted. But it is obvious that because of their very nature, their adoption is a common and long-standing feature in Community law. It is usually the Commission that adopts individual communications, which it seems to do without any outside involvement. This is quite logical, since most of these communications aim precisely at obtaining reactions from interested parties and thereby at outside involvement in the final decision. Some individual communications may be adopted by other institutions as well, such as those giving notice of open competitions. Individual communications are published in the C-series of the Official Journal. Given that many of them aim at the submission of comments by interested parties, it is only logical they should be published in such a way that these parties are able to take notice of them in the first place.

5.3

5.3.1

INTERPRETATIVE AND DECISIONAL INSTRUMENTS

Administrative Rules in EC Law

In December 1962, the Commission published two Communications concerning the application of (ex) Article 85 first paragraph to exclusive dealing contracts with commercial agents and patent-licensing agreements. These so-called ‘Christmas Communications’ can be seen as the first manifestation of administrative rules in EC law. In general terms, these are rules that aim to provide guidance as to the interpretation and application of Community law. In this respect a further distinction can and will be made between interpretative and decisional rules and instruments. Since the beginning of the 1960s, the adoption of such instruments appears to have become an established and rather undisputed EC practice, which has received only scant attention in legal writing.47 In the light of their ever-increasing use and the interesting questions they raise, this limited attention is not justified. These questions have already been identified in Chapter 3. One of them concerns the uncertainty that exists as to the role and legal status of Community soft law instruments and the consequences of this for the transparency of Community action. A good illustration of this uncertainty

47 Handbooks

on EC law deal with this rather concisely. But see Schwarze (1976), pp 55–104.

Categories and Functions of Soft Law 139 as regards the instruments at issue here is provided by the Notice from the Commission on the application of the competition rules to the postal sector and on the assessment of certain state measures relating to postal services, whose legal nature evoked questions even before it was adopted. The consultation that took place on the draft of this Notice and the draft Directive on common rules for the development of Community postal services brought to light that there was uncertainty or misunderstanding on the role and status of the notice and on the relation between the notice and the directive.48 The legal status may also evoke questions subsequent to the adoption of such an act49 or can also still arise at a far later stage, when it has long been adopted and applied. This may occur in particular in national courts, when they are confronted with the application and interpretation of Community law in proceedings before them. An interesting example in this respect can be derived from Dutch legal practice. In the Pearle Case, the fundamental issue was whether the levies that the Trades Council for Opticians had imposed on Pearle with a view to financing a collective publicity campaign, should have been notified to the Commission by virtue of Article 93, paragraph 3 (now 88(3)) EC. One of the main questions put forward was whether the de minimis rule as laid down in the Commission’s De Minimis Notice could affect the notification obligation as contained in the Treaty provision. In particular, questions were raised as to the competence of the Commission to establish this rule as well as to the legal status thereof and the obligation for the national court to apply it.50 These examples make clear that uncertainty also exists as to the functions of these Community instruments in the Community legal order and as to how they relate to EC legislation. The focus of this section will therefore be to gain greater insight into the phenomenon of administrative rules in EC law and into the main characteristics and purposes of the instruments in which these are laid down. The term ‘administrative rules’ does not form part of the EC law vocabulary as such, in the sense that it is not employed in the EC Treaty, in secondary Community legislation or in the case law of the Community courts. Yet, clearly inspired by the existence and use of such rules — under this denomination — in the national

48 Commission

Communication on the results of the public consultation, COM(96)480 final, p 3. 49 Cf Case C–57/95 France v Commission [1997] ECR I–1627 concerning the Commission’s Communication on the internal market for pension funds, discussed in detail in Subsection 6.5.2. 50 Interlocutory judgments of the District Court of The Hague, 30 October 1996 and 29 April 1998, Pearle & Others v Hoofdbedrijfsschap Ambachten. See for a short review of this case, Mortelmans (1998), pp 436–40, and van de Gronden (1998), pp 290–98. The questions have now been referred to the ECJ: Case C–345/02, OJ 2002, C 289/13.

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legal systems of the Member States,51 it is a term that has been employed in legal writing to describe a similar phenomenon occurring in the Community legal system.52 Certainly, this terminology provides for easier recognition and identification of the phenomenon at issue in EC law, yet it does not imply that the shape it takes is the same as in any of the national legal systems. These instruments must therefore be assessed in the light of the proper legal system, as the Community constitutes a legal order in its own right. This legal system already differs from the national ones in that there is always the intermediary level of the Member State. Furthermore, the choice of national legal system(s) would be rather arbitrary unless one were to adopt a comparative law approach, which is not the approach taken in this study.53 The conception of administrative rules as rules aimed at providing guidance as to the interpretation and application of Community law, entails in itself that these rules relate to existing Community law, explicating how the body of primary and secondary Community law must or will be applied. This very connection to existing Community law is in fact an important criterion for distinguishing between instruments laying down administrative rules and other — steering — soft law instruments, to be discussed in the next two sections. Further unraveling of the Community concept of administrative rules reveals that it covers two distinct kinds of rules. On the one hand, it relates to the adoption of rules that restate or summarise the interpretation that should be given to Community law provisions. These rules can therefore be referred to as interpretative rules, and the instruments in which they are laid down as ‘interpretative instruments’. On the other hand, it relates to rules that go further than mere interpretation, as they indicate the way in which a Community institution will apply Community law provisions in an individual case, where it has implementing and discretionary powers. As such, they constitute the rules on the basis of which a Community institution proposes to decide in a particular case. These rules can therefore be referred to as decisional rules, and the instruments in which they are laid down as ‘decisional instruments’.

51 In most Member States the use of administrative rules, sometimes referred to as policy rules, occurs in some form or another. See Winter (1996) (c) and the contributions therein on the sources and categories of legal acts in the British, Danish, Dutch, French, Spanish, Italian and German legal systems. Further as regards their use in the Netherlands, van Kreveld (1983); in the UK, Bröring (1994), Baldwin and Houghton (1986); in Germany, Bok (1994) and in France, Roozendaal (1994). 52 Cf Lauwaars (1993), various contributions in Winter (1996) (c) , Senden and Hancher (2000). 53 For such a comparative law approach, see Lauwaars (1993).

Categories and Functions of Soft Law 141 This classification is not new. As observed in Subsection 5.2.2.1, Mattera already distinguished informative, interpretative and decisional communications, a distinction that was later used by Advocate-General Tesauro.54 The Commission itself also speaks of interpretative communications. Lauwaars too, drawing on the classification of administrative rules in Dutch law, makes a distinction between interpretative and decisional rules when exploring the question of whether administrative rules exist in EC law.55 Some might argue that, strictly speaking, the concept of administrative rules is confined to the category of decisional rules. Such a contention would be based on conceptions of administrative rules in national law. In my view, in the Community law context several arguments plead in favour of considering both categories to fall within the concept of administrative rules and of looking at them in conjunction, although this does not alter the fact that questions concerning for instance their legal basis and legal effect may well have to be answered differently for each category. Firstly, the distinction between the two categories of rules and instruments is not as black and white as one might be tempted to think. In particular, the rules that are established may be both interpretative and decisional at the same time. Most decisional instruments thus prove to be interpretative to a certain extent as well. As a result, the two types of rules may be closely related and not always easy to distinguish from each other. This is also illustrated by the fact that some communications are considered to be interpretative by one author, but decisional by another.56 Secondly, the scope of the implementing powers and in particular of the discretion left to the institution adopting the administrative rules is not always clear. Thus, the Treaty does not list as such the implementing powers granted to the Commission. This too means that sometimes the dividing line between the two categories is rather thin. It is the Commission that makes frequent use of interpretative and decisional instruments, although they are occasionally adopted by other institutions.57 Since the Commission has ‘significant administrative responsibilities’58 and is sometimes considered to be the ‘daily administration’ of the EC, this is not so surprising. As will be discussed in more detail in Subsection 7.3.4, it is in the performance of its monitoring task that it can be said to adopt interpretative instruments and, obviously, decisional instruments can only be adopted in areas in which the Commission enjoys implementing powers. 54 Mattera (1988), pp 28–30 and note 64 below. 55 Lauwaars (1993), p 20. 56 Cf Meier (1990), Mattera (1988) and Lauwaars (1993). 57 Cf the Court’s Information note on references by national

See http://www.curia.eu.int/en/instit/txtdocfr/index.htm. 58 Craig and de Búrca (1998), p 54.

courts for preliminary rulings.

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The communication is an important instrument in which administrative rules are laid down. A number of other instruments are also used for this purpose, however, the most common being notices, guidelines, frameworks and codes. The following examination is therefore confined to these instruments; occasionally administrative rules are established in other instruments, such as recommendations,59 guides/circulars60 and vademecums.61 Before proceeding to this examination, it can be observed that the terms of the ‘communication’ and the ‘notice’ are very similar and do not reveal any possible differences in meaning. It appears that in fact they are often used interchangeably. Acts that have been published as communications are referred to as notices and vice versa. This is done in legal writing, not only by academics62 but also by Commission administrators.63 Comparison of different language versions of case law of the Court is also quite illuminating in this respect. The French version of the opinion of Advocate-General Tesauro in Case 57/95, France v Commission, thus speaks only of communications when the A-G elaborates on the nature of communications, whereas in the English version there is reference to communications and notices. As to the examples that are cited in this respect, these are all called communications in the French version, and variously communications and notices in the English version.64 The practice of the Commission also reveals that the two terms have been used rather indiscriminately. One example is the Notice on Agreements of Minor Importance (ie the De Minimis Notice), which in its first (French) version was published as a communication. Interpretative and decisional rules have been laid down in both communications and notices. The term ‘notice’ as such is in fact found only later in the Community law jargon. At first sight, the Commission does not seem to 59 Eg Recommendation 96/280/EC concerning the definition of small and medium-sized enterprises, OJ 1996, L 107/4. Primarily, however, recommendations can be considered as steering instruments. See also Subsection 7.3.2.4 on this. 60 Eg the Commission’s interpretation guide for Article 6 of the Habitats Directive: Managing Natura 2000 sites; the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, Brussels, April 2000. Also referred to as the ‘Article 6-Habitats Circular’. 61 Eg the Vademecum ACPC (the European Commission’s Advisory Committee on procurement and contracts, set up under Article 60 of the Financial Regulation), sixth edition, March 1994. 62 Cf Meier (1990), who speaks of the Cassis de Dijon Mitteilung (notice), whereas this was published as a Bekanntmachung (communication). Gardeñes Santiago (1992) refers only to comunicaciones, although a number of the examples he gives were actually published as notices. Cf also Mengozzi (1995), p 78. 63 Cf Rawlinson (1993), at pp 52–53, who refers several times to Commission notices, whereas these were published as communications or frameworks. The Commission Notice on the rules applicable to cumulation of aid for different purposes, published as a communication, is just one example, OJ 1985, C 3/2. 64 Case C–57/95 France v Commission [1997] ECR I–1627, at p 1638, footnote 17 of the opinion.

Categories and Functions of Soft Law 143 apply any clear criteria for the choice of the one or the other instrument, which reinforces the impression that there are no fundamental differences between the two.65 Quite interestingly, however, a closer look at the current use of the communication and the notice for laying down administrative rules reveals that interpretative rules are mainly to be found in communications, whereas since the early 1990s decisional rules are primarily laid down in notices. Yet, as this use of communications and notices is not always consistent, both will here be discussed under the headings of interpretative instruments and decisional instruments. The other instruments mentioned above — guidelines, codes and frameworks — can be characterised as decisional instruments, although they often contain interpretative rules as well. Sometimes, these other instruments are actually ‘covered’ by notices, as the Commission Notice — Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements illustrates.

5.3.2

Interpretative Communications and Notices

The use of interpretative communications has become quite wellestablished practice since the early 1980s, starting with the adoption of the Cassis de Dijon Communication. In a sense, the Commission can be said to have institutionalised this use in its White Paper on the Internal Market adopted in 1985, by introducing there the notion of ‘interpretative communication’.66 Since then, it has also sometimes explicitly referred to this in the title of its communications67 and in its pleadings before the ECJ.68 Initially, most interpretative communications were adopted in the area of the free movement of goods,69 but now they are increasingly found in the other free movement areas as well and occasionally also outside these areas. Taking into account their nature and purposes, the adoption of interpretative communications is in fact conceivable in all areas covered by Community law. Since interpretative instruments are adopted with a view to elucidating the interpretation that should be given to the existing body of primary and secondary Community law, they can be said, in principle at least, not to aim at laying down or creating new legal rules. That is to say, they do

65 See also Subsection 5.2.2.3 on individual communications and notices. 66 COM(85)310 final, para 155. 67 Eg the Commission Interpretative Communication concerning the free

movement of services across frontiers. 68 For instance in Case C–57/95 France v Commission [1997] ECR I–1627, discussed in Subsection 6.5.3. 69 Cf Mattera (1988), Gardeñes Santiago (1992) and Meier (1990) in this respect.

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not aim at generating legal effects other than those ensuing from the underlying law itself. In a sense, the interpretation given must therefore be considered implied in the existing rules. However, when one examines more closely the nature of the rules contained in interpretative communications and notices, it appears that there are various ‘gradations of interpretation’.70 Firstly, interpretative acts may be confined to explaining the rules that apply in respect of a certain area or sector, and in doing this summarising the interpretation the CFI and the ECJ have given to (vague or open) provisions of the EC Treaty and secondary legislation, possibly also providing a brief conclusion thereon.71 Secondly, although this mere restatement and recapitulation of the interpretation of Community (case) law is to some extent a subjectively tinted exercise, interpretative communications and notices may contain more explicit subjective elements. This is the case whenever the Commission not only draws conclusions, but also formulates guidelines or rules of conduct on the basis of the summary of the interpretation it has given.72 Thirdly, interpretative communications may go yet a step further, by giving concrete contents to and/or distilling certain obligations from provisions that (still) have an open or rather undetermined nature, which do not as such follow directly from those provisions or from their interpretation by the Community courts. An example of this is the Communication concerning an internal market for pension funds, at stake in Case C-57/95, France v Commission, in which the Commission interpreted the Treaty provisions relating to the free movement of services and capital as entailing the obligation for pension funds to invest their assets in a certain way. Another example is the Communication concerning the free movement of workers and access to the public service, in which the Commission concretised the application of (ex) Article 48(4) EC by indicating what tasks could be considered to fall within the concept of ‘public order’ formulated by the ECJ. An example in quite a different area is the Communication on the interpretation of the Kalanke judgment. This communication undoubtedly aimed at explicating the conclusions that the Commission had drawn from the Court’s judgment; surprisingly, it argued that the Court had considered permissible positive action regarding ‘the underrepresented sex’, whereas the case itself and the Court’s considerations clearly concerned only positive action regarding women. In the Commission Communication concerning the non-respect of certain provisions of Council Directive 83/189/EEC of 28 March 1983 laying down

70 Cf also Gardeñes Santiago (1992), at pp 939–40. 71 Eg the Commission Interpretative Communication

concerning the free movement of services across frontiers. 72 Cf the Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on February 20, 1979, in Case 120/78 (Cassis de Dijon).

Categories and Functions of Soft Law 145 a procedure for the provision of information in the field of technical standards and regulations the Commission explicated the consequences following from this directive. In particular, it wished ‘to draw the attention of Member States and other interested parties to the fact that national technical standards and regulations adopted in breach of Directive 83/189/EEC are unenforceable against third parties, and the Commission would expect national courts to refuse to enforce them.’ About ten years after the adoption of this communication the Court drew the same conclusion from this directive in the Securitel Case.73

The above observations and examples permit the conclusion that interpretative communications establish rules of a general and normative nature, yet with varying degrees of ‘newness’. That is to say, the Commission may indeed confine itself to presenting the interpretation that must be given, according to the Community courts, to existing primary and secondary Community law, and as such to restating and explaining the rules already contained in this body of law. But it may in fact also infer new rules from (the interpretation of) this law, which do not necessarily ensue therefrom. To this, one may add that in certain cases the Commission’s views as laid down in its communications are in fact a reflection of the views that it already held before these were actually shared or held by the Court, whereas in others they are an expression of progress in its views on a certain matter, pursuant to case law of the Court.74 To explain: in its written observations in the Cassis de Dijon Case, the Commission in fact put forward a revolutionary interpretation of (ex) Article 30 EC, which the Court then established for the first time in this case, ie that in the absence of common rules the Member States are still allowed to regulate in respect of a certain matter, but that any obstacles to the free movement of goods resulting from this national regulation are only acceptable if they are necessary to satisfy mandatory requirements, such as for instance the protection of the consumer. Pursuant to the Court’s judgment, the Commission then adopted the above-mentioned Cassis de Dijon Communication. The 1997 Golden Share Communication can be regarded as a reflection of progress in the Commission’s views over a number of years. That is to say, in the Fearon Case75 the Commission still defended the point of view that the free movement provisions of the Treaty were not applicable to the Irish system of compulsory acquisition by public bodies, since this was part of the system of property ownership in Ireland and according to (ex) Article 220

73 Case

C–194/94 CIA Security International v Signalson and Securitel [1996] ECR I–2201. This case gave rise to considerable turmoil in the Netherlands. this point to my attention.

74 I thank Prof. Mortelmans for drawing 75 Case 182/83 Fearon [1984] ECR 3677.

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EC ‘this Treaty shall in no way prejudice the rules in Member States governing the system of property ownership’. The Court did not accept this conclusion, making a distinction between the existence of such rules and the application thereof; the latter must be carried out in accordance with the free movement provisions.76 The Golden Share Communication reflects the Commission’s acceptance of this viewpoint of the Court, on the basis of which the Commission has brought a number of infringement proceedings against Member States for acting contrary to the criteria laid down in this communication.77

To some extent it can also be seen from the above examples, that interpretative communications and notices are directed towards those affected by the implementation and application of the Treaty or secondary law provisions at issue. This may be parties having to comply with Community law obligations, such as the Member States and economic operators, but also those deriving rights from Community law, such as EU citizens and consumers. So, clearly, interpretative communications and notices are also of an external nature. Interpretative communications and notices are not intended to have legally binding force, although they rarely state this in so many words. Occasionally, they express that the rules they contain are entailed in the underlying Treaty or secondary law provisions, which are already binding. To some extent, this also explains why the Commission may not deem it necessary to propose legislation. More often, interpretative communications and notices contain the formula that the Commission’s interpretation is without prejudice to the Court’s future interpretation of the Community law provisions at issue. Yet, as seen above, at times the Commission seeks to impose quite far-reaching legal obligations under the guise of ‘interpretative’, whereas it is in fact rather questionable whether such obligations actually ensue from the Community law provisions. As the White Paper on the Internal Market also indicates, restating the interpretation to be given to Community law is not (of course) an objective in itself. In fact, the Commission propagated the use of the interpretative communication in this Paper as a means to increase the transparency of EC law by clarifying the legal situation in a certain economic sector or with respect to certain restrictions. This purpose is generally also emphasised in the introductory observations of interpretative communications themselves, thereby laying bare the reasons behind their adoption. It thus appears that the main objective of interpretative communications is to make more transparent and to clarify the legal framework that

76 See 77 See

Mortelmans (2002), pp 344–45. Subsection 9.4.1.1 on these.

Categories and Functions of Soft Law 147 applies in respect of a certain area and the rights and obligations that result therefrom.78 As such, this also meets the desire for greater legal certainty. This transparency and clarification should also lead to a better application and use of Community law, and thus contribute to its effectiveness as well. At the same time, this makes clear that interpretative communications and notices are adopted with a view to supporting and supplementing both primary and secondary Community law, in particular to ensuring the proper interpretation and — uniform — application thereof. This also explains why the Commission does not deem it necessary to proceed to the adoption of legislation. In terms of function, it means that interpretative instruments fulfil the post-law function. Because of the very nature and function of interpretative communications, it is logical that these always refer to particular Treaty provisions or provisions of secondary Community law; this is a conditio sine qua non, as there would be nothing to interpret if this were not the case. That does not say anything, however, about the question as to what the Commission considers to be the legal basis of its interpretative communications or from where it derives the power to adopt these. The interpretative communications themselves are silent on this question. The Commission thus seems to assume that, anyhow, it possesses the competence to adopt such communications, or that the establishment of competence is not required at all. The Commission appears to draw up interpretative communications on its own initiative whenever it deems this necessary. Such a necessity may become evident pursuant to consultations it has held. It further appears that the Commission considers that the Court may also encourage it to adopt interpretative communications, or at least to sum up and consolidate its case law.79 It is unclear to what extent the Commission consults other institutions, in particular the European Parliament, before adopting interpretative communications. Yet, as the procedure concerning the adoption of the Golden Share Communication shows, the EP may certainly feel that is has been unjustly bypassed.80

78 Gardeñes Santiago (1992) speaks of the función pedagógica of interpretative communications. Cf also the Commission interpretative Communication concerning the application of the Single Market rules to the sectors of fairs and exhibitions and the interpretative Communication on the freedom to provide services and the concept of ‘general good’ in the second Banking Directive. 79 In the interpretative Communication on the free movement of services across frontiers, the Commission thus referred to Case C–288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I–4007, and in particular its paras 10 to 15, in which the Court itself had already summarised its previous case law on the application of the principle of non-discrimination and the invocability of the public interest. 80 See Subsection 3.3.2.

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Interpretative communications and notices are published in the C-series of the Official Journal. They may also be notified directly to those concerned, but that seems to occur only rarely.

5.3.3

Decisional Notices and Communications

One of the first decisional communications to be published as a notice was probably the first amendment to the De Minimis Communication, adopted in 197081 pursuant to the judgment in the Völk v Vervaecke Case.82 Since then, the notice seems to have become the more common instrument for laying down decisional rules. The term decisional communication or notice is not used by the Commission itself, but has been introduced in legal writing.83 The rules laid down in decisional notices go further than those in interpretative communications, as they are not confined to interpretation but are also general rules regarding the way in which implementing powers will be exercised.84 In particular, these rules indicate how the Commission will apply Community law provisions in individual cases and how it will make use of the discretion at its disposal in this respect. As such, these rules are clearly rules of conduct and hence are of a normative nature.85 The fundamental difference between (the use of) interpretative and decisional instruments is therefore the existence of implementing and discretionary powers. So, in themselves, interpretative instruments cannot be decisional as well, because implementing powers are a precondition for this. By contrast, decisional instruments may very well be, and often are, also interpretative to some extent. Furthermore, decisional notices are of both an internal and an external nature. They are of an internal nature because obviously the rules that have been established are intended to guide the Commission’s own way of acting in individual cases. As such, they provide an internal guideline for the administrators of the Commission charged with the application of Community (competition) law. At the same time they are of an external nature, as these rules also provide guidelines for the behaviour of

81 OJ 1970, C 64/1. The amendments which were adopted in respectively 1977, 1986 and 1997

were all published as notices: OJ 1977, C313/3; OJ 1986, C 231/2; OJ 1997, C 372/13. See also Broberg (1995), pp 371–87. 82 Case 5/69 Völk v Vervaecke [1969] ECR 295. 83 By Melchior (1979), p 243, and later by Mattera (1988), p 43, who also speaks of déclaratoire in this respect. 84 Ibid Cf also Lauwaars (1993), pp 20–21, and for the discussion of a concrete example of a decisional notice Wils (1997), p 136 in particular. 85 See for instance the Notice on the application of the competition rules to the postal sector and on the assessment of certain State measures relating to postal services.

Categories and Functions of Soft Law 149 those affected by this application of Community law, such as the Member States and enterprises. On the basis of the decisional rules, they can anticipate the way in which the Commission will apply Community law in a concrete case and thus can adapt their behaviour to these rules in advance. Apart from this, they provide a guideline for the institutions that have to apply the Community law provisions in the national context, ie the national courts and, for instance, competition authorities. Some notices of a procedural nature are also directly addressed to them, such as the Notice on cooperation between national courts and the Commission and the Notice on cooperation with the national competition authorities. In short, decisional notices provide standards for the way of acting not only of Commission administrators but also of the Member States, economic operators and national judges or authorities. As regards their intended legal status, the decisional notices themselves do not usually indicate that they do not have legally binding force nor aim at having legal effect. This adds to the legal uncertainty that may exist in this respect, which could clearly be seen in the context of the consultations that took place on the draft Notice on the application of the competition rules to the postal sector. The Commission felt compelled to provide some clarity regarding the role and status thereof in a communication, considering that the draft Notice is based on the competition rules in the European Community Treaty, and explains the Commission’s views with regard to the application and practical consequences of these principles in the postal sector, and the possible exceptions to these principles. The Notice is not a legally binding document and it does not need to be: the competition provisions of the Treaty are already legally binding (emphasis added).86

The Commission is obviously of the opinion that decisional notices do not intend to be legally binding in themselves, but those concerned by them are already bound by the underlying Treaty provisions or secondary law. Quite interestingly, in the notice that was eventually adopted the Commission refrained from stating explicitly that it constituted a non legally binding act, not entailing any rights or obligations, despite the fact that the European Parliament had pleaded for the explicit insertion of such a statement.87 The notice contains only the formula that is usually found in decisional notices as well, namely that it is ‘without prejudice to any interpretation to be given by the Court of Justice’.

86 Commission

Communication concerning the public consultation on the draft Notice on the application of the competition rules to the postal sector, COM(96)480 final, p 5. 87 Resolution of the European Parliament of 12 December 1996, OJ 1997, C 20/159.

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Sometimes it is also observed that the adopted act is without prejudice to the interpretation and application of EC (competition) law by national authorities,88 although it may be considered to be of persuasive authority in proceedings before national courts.89 The foregoing does not alter the fact that communications and notices may sometimes impose quite far-reaching information and reporting obligations, which seems to boil down to the Commission imposing or intending to impose (legal or de facto) obligations in respect of which its competence may not always be clear. For instance, the Commission Communication to the Member States — Application of Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector sought to impose an information obligation on the Member States with a view to ensuring the transparency of financial relations between the Member States and public undertakings. Since the areas in which the Commission is given implementing and discretionary powers are fairly limited, the substantive scope of decisional notices is equally limited. In this respect, they are in fact similar to individual communications, which concern the actual exercise of discretionary power in a particular instance.90 Decisional notices are thus most frequently adopted in the areas of competition law, merger control, state aid and common commercial policy. The notices may be of a rather general nature or may relate to more specific sectors and are sometimes also of a procedural nature, such as the Access to Files Notice or the Commission Notice on the non-imposition or reduction of fines in cartel cases. Decisional notices are now also found in the budgetary sphere, where they relate in particular to Community (social) initiatives such as NOW, HORIZON, REGIS and the like. Programmes of the Member States in implementation of these initiatives are only eligible to benefit from them upon the fulfilment of the conditions laid down therein.91 Furthermore, decisional rules are also adopted in the area of staff law.92 It is no exaggeration to say that in the said areas, decisional notices have become a regular and established instrument of administrative practice and policy, which is also illustrated by the most recent series of six notices proposed with a view to the application of Regulation 1/2003, 88 Eg De 89 Cf the

Minimis Notice, OJ 1997, C 372/13, point 7. Commission Notice — Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements. 90 See Subsection 5.2.2.4 on these. 91 Eg the Notice from the Commission to the Member States laying down guidelines for the operational programmes which Member States are invited to establish in the framework of a Community initiative concerning the outermost regions (REGIS II). 92 Cf Kapteyn (1985), pp 77–79. For concrete examples, see Section 10.4.

Categories and Functions of Soft Law 151 entering into force in May 2004.93 An explanation for this may be found in the fact that quite a few Treaty provisions conferring implementing powers upon the Commission contain rather vague notions, such as those concerning competition law (now Articles 81 and 82 EC) and state aid (now Articles 87 and 88 EC). The Commission, having to interpret and apply these provisions in individual cases, wishes to concretise and generalise this application, also taking into account the interpretation already given by the Community courts. As such, decisional rules can be considered as a tool or means to structure implementing and discretionary powers. In the De Minimis Notice the Commission thus quantified the appreciability requirement adopted by the ECJ in the Völk v Vervaecke Case in respect of the application of (now) Article 81(1) concerning agreements concluded between companies. The above-mentioned series of notices seems to go yet a step further, by in fact putting forward new policy statements which are not based on any case law of the Community courts or previous administrative experience. The purposes aimed at with this use of decisional notices emerge clearly from their contents, which at the same time demonstrates the link that may exist between interpretative and decisional communications and notices. It appears in particular that clarification and enhancement of transparency and effectiveness of Community law are again the reasons why the Commission adopts decisional notices.94 In the Commission’s view, they contribute firstly to greater legal certainty; the interests of economic operators will be served by knowing beforehand in what way the Commission will interpret and apply Community competition law rules to a certain sector, so that they can conform their behaviour to these rules in time. For instance the De Minimis Notice thus provides companies with a yardstick to test the agreements that they conclude. Secondly, the Commission is also of the opinion that such clarification and transparency contribute to greater compliance with Community law and to a more uniform application of Community law in the Member States as well. In turn, this will enhance the effectiveness of EC law. Thirdly, self-interest also underlies these aims of clarification and transparency, as the notices are considered to facilitate the Commission’s enforcement in the areas of Community law concerned. As such, the notices should lead to for instance fewer submissions of agreements to the Commission, better decentralised enforcement of EC (competition) law and possibly also a reduction in the number of 93 See footnote 142 of Chapter 10. 94 See eg the Notice on the application

of the EC competition rules to cross-border credit transfers, the Notices concerning the implementation of the EC Merger Control Regulation and the Notice — Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements. Cf also Mattera (1988), p 30, and Melchior (1979), p 246.

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Article 226 EC procedures. In this way too they are considered to contribute to the effet utile of Community law.95 The foregoing does not alter the fact that the (simultaneous) adoption of legislation and decisional acts may lead to confusion. From the consultation that took place on the draft Notice on the application of the competition rules to the postal sector it thus emerged that not only was there a problem of consistency with the Directive on postal services proposed at the same time, but also the way in which the notice and directive related to each other was considered quite a mystery. The Commission explained that the directive created new legal provisions and aimed at harmonising the rules on postal services, whereas the notice was said to be limited to explaining the Commission’s view on already applicable Treaty provisions and their relevance for the postal sector. In particular, the Commission considered it not appropriate to write articles into the directive which merely restated the existing law, but it was thought necessary to explain what the Commission considered to be the implications of the existing competition provisions for postal monopolies and services.96 This example emphasises very explicitly that, in theory at least, notices do not aim at establishing new legal rules, independently of existing Community law. They are only adopted subsequent to certain Treaty or secondary law provisions, supplementing and supporting these with a view to ensuring the proper interpretation and (uniform) application thereof and compliance therewith. As such, decisional notices can be said to fulfil the post-law function. Thus, decisional notices necessarily have (a) Treaty provision(s) or secondary law as their point of departure, such as (now) Articles 81 and 82 EC and Regulation 17/62. This is again logical, since these provisions must be identified before one can set out how they will be applied in individual cases. However, the Commission does not identify as such a legal basis or specify in any other way from where it derives the competence to adopt notices. Apparently, it deems that it derives this power (implicitly) from the mentioned provisions, or that its power to draw up general rules is implied in the power to take decisions in individual cases. When adopting decisional notices, it seems to be an increasingly common practice of the Commission to first adopt and publish a draft version thereof. These drafts may also concern amendments to earlier communications or notices. They are drawn up on the basis of developments that have taken place in legislation, case law and (changed) policy views, and interested parties are invited to comment on these draft versions. The last 95 See

eg the Notice on the non-imposition or reduction of fines and the Notices on the cooperation with the national courts and the national competition authorities. 96 COM(96)480 final, p 6.

Categories and Functions of Soft Law 153 amendment of the De Minimis Notice clearly reflects a changed view of policy, as it brought about quite a radical change in the thresholds applicable to horizontal and vertical agreements. The admissibility of vertical agreements has thus increased considerably as a result of this amendment. Interested parties, including the Member States, may be involved more directly in this consultation process, as occurred in the framework of this latest amendment of the De Minimis Notice. The outcome thereof is regularly published, in particular by means of informative communications.97 Yet, a number of points remain unclear in this respect: whether such a consultation process is obligatory, whether the period for reaction is sufficient and yet more importantly, whether and how the Commission takes account of the observations made by interested parties.98 The drafts of decisional notices are published in the C-series, as are the ultimately adopted notices. The drafts may also be first published as COM documents. It is now also becoming common practice to publish the draft versions on the Internet, with a view to reaching the widest possible audience and to gathering comments and suggestions from interested parties, as the Commission observed in respect of the draft Notice on the definition of the relevant market. Furthermore, in some instances the parties concerned may also be notified directly, of both the draft notices and the ultimately adopted ones. This may depend on among other things their substantive scope.

5.3.4

Decisional Guidelines, Codes and Frameworks

The term ‘guidelines’ occurs regularly in a variety of instruments. Thus, guidelines may be laid down in decisional notices, as the Commission Notice — Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements already illustrates.99 However, ‘guidelines’ have themselves become a decisional instrument, in that they lay

97 Cf

the Communication on the public consultation on the draft Notice on the application of the competition rules to the postal sector, COM(96)480 final. See also Subsection 5.2.2.3. 98 In the communication mentioned in the preceding footnote, the Commission itself observed that It would be extremely difficult to attach different weights to the reactions received, to do this in an objective way, and to determine the overall appreciation of the Notice on that basis. See also Melchior (1979), pp 250–51. also the above Notices from the Commission to the Member States laying down guidelines for the operational programmes. 99 Cf

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down rules making explicit the Commission policy in areas where it is entrusted with the power to decide on individual cases.100 In addition, as will be seen in the next sections, guidelines are sometimes established in steering instruments. Alongside guidelines, the Commission also adopts codes to establish decisional rules, to be distinguished from ‘codes of conduct’ or ‘codes of practice’, which can be characterised as non-formal steering instruments (see Subsection 5.5.6). Decisional codes appear to be adopted mainly in the area of state aid. Most often, it is found that such codes concern a specific sector. An example of this is the State aid code concerning synthetic fibres, which was at stake in the CIRFS Case.101 The Commission may also adopt ‘frameworks’ in this area, as is illustrated by the Framework for national aids for the advertising of agricultural products and certain products not listed in Annex II to the EEC-Treaty, excluding fishery products. Many of the observations made in respect of decisional notices and communications also apply to decisional guidelines, codes and frameworks. Thus, the (legal) nature of the rules established therein and the purposes aimed at with their adoption can be said to be the same. The main difference between decisional communications and notices on the one hand and decisional guidelines, codes and frameworks on the other, concerns the area in which they are adopted: guidelines, codes and frameworks are primarily adopted in the area of state aid,102 although occasionally guidelines are also adopted outside that area. The guidelines, codes and frameworks in the area of state aid go back to the late 1960s, when the first rules concerning regional aid were adopted.103 Today they cover a range of sector specific aid — eg maritime and air transport aid — and horizontal state aid, in particular environmental aid, regional aid and research and development aid.104 Since these instruments are frequently adopted in the area of state aid, it is the Member States that in the first place are affected by them. However, third parties and potential beneficiaries will also be affected. Increasingly, decisional rules in the area of state aid are highly detailed and they also often impose concrete obligations on the Member States. These may be notification requirements in the event that the proposed individual state aid exceeds a certain threshold, but may also be additional obligations such as annual reporting obligations to enable the

100 Cf Della Cananea (1993), p 63. 101 Case C–313/90 CIRFS [1993] ECR I–1125, discussed in Subsection 6.6.3. 102 Cf Rawlinson (1993) and Della Cananea (1993). 103 See EC Commission, First Report on Competition Policy, paras 143–44

and the Council Resolution of 20 October 1971 on General Regional Aid Systems, OJ 1971, C 111/1, following the Commission’s Notice of 23 June 1971, OJ 1971, C 111/7. See also Rawlinson (1993), p 54. 104 Senden and Hancher (2000), p 98. See in detail Hancher et al (1999).

Categories and Functions of Soft Law 155 Commission to check that the Member States are complying with the act in question. Disputes occur quite regularly regarding whether the conditions of these acts are complied with in practice.105 When they are adopted outside the area of state aid, the number of addressees may be larger. The Guidelines on the application of EEC competition rules in the telecommunications sector for instance state that they advise public telecom operators, other telecommunications service and equipment suppliers and users, the legal profession and the public about the general legislative and economic principles that have been and are being followed by the Commission. Guidelines too are generally published in the C-series of the Official Journal, but they may also be notified to the Member States (sometimes instead of publication), as being the directly concerned parties. Aid codes may also be notified solely by means of a letter to the Member States. Della Cananea has observed that they may also remain internal Commission documents, which are merely mentioned in the Commission’s annual reports or other general publications.106 They may also be published as part of an overview of the whole legal framework of state aids, or in the Commission report on competition policy. More recently, Hancher et al observed that the Commission has endeavoured to increase transparency in state aid policy and decision-making by publishing and subsequently revising policy guidelines and aid codes.107 On the basis of the foregoing, one must conclude that there is indeed proliferation of and increased reliance on instruments such as guidelines and frameworks in the area of state aid.108 It is unclear whether there are particular reasons underlying the choice of the one or the other instrument in this respect.

5.4

5.4.1

FORMAL STEERING INSTRUMENTS

The Term and Concept of Steering Instruments

The classification of EC soft law instruments on the basis of their objective and function leads further to the identification of a third category of instruments, which I have designated ‘steering instruments’. A number of quite frequently adopted instruments can be said to fall within this category, in particular recommendations, opinions, resolutions, codes

105 Eg Case T–149/95 Ducros v Commission [1997] ECR II–2031. Senden and Hancher (2000), p 98. 106 Della Cananea (1993), at p 63. 107 Hancher et al (1999), p 14. 108 Cf also Hancher et al (1999), pp 13–14.

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of conduct, conclusions and declarations. Although the use of these instruments also raised concerns, as an early report of the European Parliament illustrates,109 it is (again) valid to conclude that legal writing has not kept pace with the development of these instruments.110 ’Steering instrument’ is not an established, fixed term or concept of EC law, in that it does not occur in the EC Treaty, in secondary legislation or in the jargon of the EC institutions. Nor can it be said to be an established term in legal writing, certainly not as an umbrella term for a separate category of Community (soft) law instruments. Whenever used, it is given a rather literal or general meaning. Kapteyn and VerLoren van Themaat thus speak of steering mechanisms (sturingsmiddelen) in the context of Article 3 EC, considering in particular that in certain areas binding interventions in the form of directives or regulations are provided for, whereas in respect of others only interventions of a financial nature or measures of an encouraging nature are available.111 So, their conception of ‘steering mechanisms’ is very broad, encompassing many different types of instruments, both legal and non-legal. Measures of an encouraging nature, such as recommendations, are consequently only considered to be one of the many possible ‘steering mechanisms’. For the purposes of this study, the term ‘steering instrument’ will be used in a far narrower sense. In the first place, it must be understood to refer exclusively to legal and/or political instruments, as opposed to economic and financial instruments such as subsidies and aid measures. Secondly, the term itself already designates that the primary objective of the instruments that fall within this category is to steer or guide action in some way or another. A third essential aspect is that they do so in principle in a legally non-binding way, as opposed to legislative instruments. The second element needs further explanation at this point, especially to establish its distinction from the other two categories of soft law instruments. Indeed, in so far as the instruments falling within those categories have been said to lay down rules of conduct, they also guide or steer action in some way. As regards the informative and preparatory instruments, however, it has already become clear that, generally speaking, this is not the case, in contrast to the second category, that of interpretative and decisional instruments. Yet, an inherent aspect of the latter category of instruments is that the rules in these instruments relate to existing Community law, in the sense that they concern the interpretation of Community law and/or the exercise of discretionary powers. This is a

109 Burger Report of the EP, p 21, Document de séance, no 215/69, of 12 March 1969. 110 Cf also Everling (1987), p 417. 111 Kapteyn and VerLoren van Themaat (1995), pp 81–82, 86; Cf Gormley (1998), p 114.

Categories and Functions of Soft Law 157 fundamental difference from the instruments that can be characterised as ‘steering instruments’, as these instruments lay down rules that are not necessarily linked to the existing legal framework in such a way. As the following examples show, steering instruments may lay down new rules, independently of an existing legal framework, or may be adopted in the context of such a framework, prior to, simultaneous with or subsequent to legislation. Generally, however, they do not confine themselves to the application or explanation of this legislation, but rather entail an addition to the contents of existing acts. The explicit characterisation of an instrument as a ‘steering instrument’ emphasises this particular aspect and gives it a strong significance, even though some instruments will appear to be more of a declaratory than a normative nature. At the time of adoption of the Recommendation 68/335/EEC of the Commission to the Member States on the structural improvement of the market in the carriage of goods by inland waterway, the Commission also sent a proposal for a regulation to the Council on the access to the market in the carriage of goods by inland waterway. Both acts proposed measures for action at Community level concerning the dismantling of inland navigation vessels. Commission Recommendation 73/185/EEC concerning the implementation of the Council Directive of 24 April 1972 on insurance against civil liability in respect of the use of motor vehicles was evidently adopted pursuant to the adoption of a legislative act. The Commission’s Recommendation of 22 December 1986 concerning the introduction of deposit-guarantee schemes in the Community was followed by Directive 94/19/EC on deposit-guarantee schemes. The Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work was for a long time not followed by any legislation.112

These examples also raise questions of what functions the steering instruments actually fulfil in the Community legal system and what reasons underlie the decision to use them. Furthermore, the issue of their legal status is raised and of the relation between instruments such as recommendations and resolutions on the one hand and primary and secondary Community law on the other. Following on from this, the use of steering instruments is interesting from the viewpoint of division of competences not only between the EC and the Member States (external division), but also among the EC institutions themselves (internal division). One question that can be posed in this regard is what consequences the use of this type of instrument entails for the institutional balance. As will be seen,

112 Some provision on this was made recently in the amended Directive 76/207/EC concerning the equal treatment of women and men, OJ 2002, L 269/15.

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the Commission may wish to achieve quite far-reaching objectives with the adoption of for instance a recommendation. Recommendations and opinions are steering instruments that are actually provided for in the source catalogue of Article 249 EC. This means they have been given a specific place within the legal framework created by the Treaty. Consequently, they can be said to be formal steering instruments,113 as opposed to the non-formal ones, which have not been provided for as a general Community instrument by the Treaty but have occurred in the daily practice of Community law. Within the latter subcategory fall resolutions, conclusions, declarations, codes of conduct or codes of practice and guidelines.114 I deem it important to make such a distinction, starting from the assumption that not without reason did Article 249 make provision for the recommendation and the opinion as instruments of EC law; it is likely that this was done with a certain role or function for them in the Community legal order in mind. The case is different for the non-formal instruments, which have only gained a place and significance in this legal order de facto. Hence, the distinction between formal and non-formal steering instruments could very well prove to be relevant with regard to their respective (legal) natures, objectives and functions, adoption processes, legal bases and the issue of publication and notification. In order to elucidate possible differences and similarities in these respects, I will deal with them separately.115 The main focus of this section and the next will thus be to establish a clearer insight into the general characteristics of the steering instruments.

5.4.2

Points of Departure: Article 249 EC and Legal Writing

Article 249 of the EC Treaty provides solely that: In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. … Recommendations and opinions shall have no binding force.

113 Cf also Ipsen (1972), p 460, who classes recommendations and opinions with the Formalakte of the EC. 114 This is not to say that their adoption has not been provided for anywhere in the Treaty. Thus, Articles 99(2) and 128(2) EC provide respectively for the adoption of broad economic guidelines and employment guidelines. See on these also Subsections 5.4.3 and 5.4.4. 115 It should be noted again here that the distinction between the different steering instruments, including between formal and non-formal ones, might be obscured by the fact that one steering instrument actually ‘covers’ another, eg the Recommendation concerning a code of conduct on European payment and the Conclusions of the ECOFIN Council of

Categories and Functions of Soft Law 159 It thus gives only an indication of the legal effect of the formal steering soft law instruments and does not define these in other respects, as it does for the regulation, directive and decision as regards nature, scope and addressees. Furthermore, by mentioning recommendations and opinions very much in the same breath, Article 249 might tempt one to think that recommendations and opinions are similar instruments or that they are synonymous, especially if a literal interpretation is given of these terms. However, it turns out that, in practice, the recommendation and the opinion are two distinct instruments, with different purposes and characteristics. As regards the recommendation, Article 249 makes clear that the drafters of the EC Treaty chose to give the EC recommendation a different meaning from that given a few years earlier under the ECSC Treaty. In that Treaty, the recommendation was provided for as a legal instrument similar to the directive under the EC Treaty, that is, binding as to the result to be achieved upon those to whom it is addressed, but leaving them the choice of form and methods. The characterisation of the recommendation in the EC Treaty clearly concurs with the more literal meaning or scope of the term recommendation, and with the meaning usually given to it in the national and international law contexts.116 It should be recalled immediately, however, that every instrument of EC law must be viewed and assessed only against the particular background of the Community legal order, which means that the recommendation too has gained a particular significance in EC law, which cannot simply be equated to the concept of recommendation in the national or international legal orders. Apart from the statement of ‘no binding force’, Article 249 merely indicates that recommendations may be adopted by both the Commission and the Council.117 Consequently, the nature, objective, function and other characteristics of this instrument have to be deduced mainly from the actual wording and contents of the recommendations adopted hitherto, as well as from the case law of the Community courts. Owing to the fact that the recommendation has been provided for as an instrument of EC law, this instrument has also been discussed in legal writing.118 It should be noted here, however, that the issue has sometimes been dealt with only very concisely, with seemingly no intention of being complete.

1 December 1997 concerning tax policy, whose Annex I is a Resolution of the Council and the Representatives of the Member States, meeting in Council on a Code of Conduct for business taxation. See also Subsection 4.4.2. 116 Cf Soldatos and Vandersanden (1976), p 96. 117 Yet, practice shows that other institutions, in

particular the European Parliament and the European Central Bank, also adopt recommendations. 118 See in particular Morand (1970), pp 623–44; Soldatos and Vandersanden (1976), pp 95–151.

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Most authors have focused on the question of the recommendation’s legal nature and these discussions have in common that the statement of Article 249 that recommendations ‘shall have no binding force’ is largely considered to be only a declaration of principle. It has thus been held that, despite this ‘no binding force’, recommendations (may) have ‘rechtliche Wirkungen’ and ‘indirekte Wirkungen’,119 ‘indirekte Rechtswirkungen’,120 that ‘they must nevertheless be classified as legal acts’ and that they ‘may have considerable legal significance’.121 According to Craig and de Búrca, the fact that recommendations have no binding force means that this precludes such measures from having direct effect, but that it ‘does not immunise them from the judicial process’.122 Morand also clearly considers that recommendations have legal effect, acknowledging that ‘les recommendations sont susceptibles dans certains cas de donner naissance à des obligations juridiques’… .123 Soldatos and Vandersanden in a specific contribution on EC recommendations consider that: Il apparaît, …, que bien que la recommendation ne soit pas obligatoire, elle constitue un acte juridique dont la valeur essentielle réside dans ses effets juridiques indirects, dans le contexte contraignant de sa procédure d’élaboration, et dans sa portée morale ou politique.124

Pescatore’s view, however, seems to imply that they cannot entail legal effects, as he deems that only those Community acts that are susceptible to the annulment appeal under Article 173 (now 230) EC constitute legal acts. In the same line of thinking, Houben considers that the legal nature of a Community act can only result from its binding force, thereby affirming that recommendations and opinions do not form part of the sources of EC law.125 Although in itself this discussion on the legal nature is very interesting and important, and will therefore be continued in detail in Part III, it is disappointing, to say the least, that so little attention has been given to other relevant questions surrounding the phenomenon of recommendations, such as their function, scope, addressees etc.126 Consequently,

119 Beutler and Bieber (1993), p 199. Cf in the same sense Commentaire Mégret (1993), p 485. 120 Geiger (1993), p 638. 121 Smit and Herzog (2002), pp 633 and 635. In the same sense von der Groeben et al (1997),

pp 1060–1061 and Lauwaars and Maarleveld (1987), p 71. Borchardt and Wellens (1989), p 285 speak of ‘a legal scope’. 122 Craig and de Búrca (1998), p 109. 123 Morand (1970), pp 626–27. 124 Soldatos and Vandersanden (1976), p 101. 125 Views as represented in Soldatos and Vandersanden (1976), at p 98. See further also Subsection 6.2.3. 126 Cf Kapteyn and VerLoren van Themaat (1995), p 198 ff.

Categories and Functions of Soft Law 161 legal writing is of only limited assistance with regard to gaining full insight into the instrument itself. The contributions of Soldatos and Vandersanden and of Morand are positive but isolated exceptions in this respect. Morand discusses and classifies recommendations by taking their addressees as a point of departure. He also sheds some light on the reasons behind the choice of recommendations instead of legislation. In particular, he argues that the importance of recommendations will increase with the further development of European integration. As many areas are covered by the EC Treaty without provision for the appropriate means of Community action,127 in several of them progress can only be realised with the (voluntary) cooperation of the Member States. In these areas, in his view, the essential instruments remain the classical international law instruments: treaties and recommendations.128 Some authors have made similar remarks in respect of soft law in general.129 Soldatos and Vandersanden, by contrast, take the objective of recommendations as the starting point for their discussion. As the title of their contribution indicates,130 they are clearly of the opinion that the recommendation has a harmonising role, albeit indirect, of bringing national legislations and policies closer together. Some authors have acknowledged that there are differences between the recommendation and the opinion. Beutler and Bieber make a distinction between them, on the basis of their addressees and as to who takes the initiative for their adoption: opinions are usually adopted on somebody else’s initiative and recommendations are made on the institutions’ own initiative.131 Von der Groeben also considers that während die Empfehlungen dadurch gekennzeichnet sind, dass sie dem Adressaten ein bestimmtes Verhalten nahelegen, enthalten die Stellungnahmen häufig eine Meinungsausserung zu fremder Initiative und stellen sich oft als Beurteilung einer gegenwartigen Lage, bestimmter Vorgange usw. dar.132

Smit and Herzog observe that whereas ‘recommendations are invitations to take certain measures, sometimes accompanied by additional provisions of a procedural nature’, ‘opinions are expressions of opinion

127 At least at the time of his contribution; 1970. 128 Morand (1970), p 624. 129 See for instance Thürer (1990), Borchardt and Wellens (1987) and (1989). 130 ie La recommendation. Source indirecte du rapprochement des législations nationales dans le cadre

de la Communauté Economique Européenne. Soldatos and Vandersanden (1976). 131 Beutler and Bieber (1993), pp 192–193 and 199. In the same sense Commentaire Mégret (1993), p 485. 132 Von der Groeben et al (1997), p 1060.

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from the Commission or the Council on a certain factual or legal situation’.133 Focusing here on Commission and Council recommendations, I will discuss these separately, as different reasons may lie behind their respective use of recommendations, and questions concerning the function, legal basis, adoption, scope and addressees thereof will very probably be answered differently.

5.4.3 5.4.3.1

Commission Recommendations The (Legal) Nature of the Rules

Speaking in very general terms, the rules laid down in Commission recommendations can first of all be said to aim at influencing behaviour. The recommendation is thus an instrument that invites or proposes to the addressees to adopt or follow a certain line of conduct. The Commission recommendation can therefore be said to lay down rules of a normative nature. This is expressed in recommendations by the use of various terms, such as rules of conduct, guidelines, minimum or common principles or obligations, standards of good practice and the like, which may also be used in conjunction. Furthermore, the kind of rules the Commission seeks to establish may well be expressed in the actual title of the recommendation.134 Secondly, the rules established in Commission recommendations are most often of a general nature or, in other words, of general application. Recommendations of an individual nature, laying down rules relating to a concrete case and directed towards (a) specific addressee(s), appear to have been adopted only occasionally, and this was mainly in the early days of the E(E)C. They were in particular recommendations sent by the Commission to a Member State, pursuant to the Member State’s announcement of certain national measures. In such recommendations, the Commission expressed its view on the compatibility of those measures with EC law.135 Since the mid-1970s, such views have been laid down mainly in opinions.136 Thirdly, Commission recommendations are usually directed towards outside parties and not to other EC institutions or organs. As such, the 133 Smit and Herzog (2002), p 629. This with reference to Morand (1970) and Ipsen (1972), pp 459–61. For similar observations, see Lauwaars and Maarleveld (1987), p 69. 134 Eg Recommendation 77/534/EEC concerning a European code of conduct relating to transactions in transferable securities. 135 Cf for instance Recommendation 68/41/EEC, Recommendation 69/14/EEC and Recommendation 74/184. 136 See below Subsection 5.4.5 and cf von der Groeben et al (1997), p 1060.

Categories and Functions of Soft Law 163 Commission recommendation can be said to be also of an external nature. These outside parties are usually the Member States, which are called upon to implement the recommendations by any necessary measures; legislative, administrative or otherwise. Morand observed quite early on that it is rather rare for recommendations to be addressed to other actors or individuals.137 The tendency seems to have persisted: this still occurs only occasionally, and when it does these addressees are mentioned alongside the Member States.138 It is therefore the Member States that must ensure that any other concerned parties apply the rules contained in the recommendation. In this regard, Commission recommendations can be said to resemble EC directives. Yet, the Commission sometimes also adopts internal recommendations, but these are either recommendations for a Council decision or proposals for a Council recommendation. So, in both cases the ‘end product’ is not the Commission recommendation, but rather the Council recommendation or decision to be established pursuant to the Commission’s proposal. This occurs for instance on the basis of Articles 99(2) and (4) and 128(4) EC, provisions which concern in fact applications of the open method of coordination (see further Subsection 5.4.4). Most Commission recommendations do not explicitly state that they constitute a non-binding instrument and/or that the rules laid down therein have no legally binding force. Only rarely is it stipulated, for instance, that: Whereas a recommendation, which is not binding on the Member States to which it is addressed as to the result to be achieved but solicits their cooperation on a voluntary basis, should be an effective means of enabling them to adopt where necessary the appropriate provisions … (emphasis added)139

or of ‘enabling them to stimulate the parties concerned’.140 It may also sometimes be explicitly acknowledged that it cannot stand in the way of or derogate from (future) legislation.141 As a consequence, apart from the general provision of Article 249 EC, one often has to deduce this non-binding nature from the rather implicit wording 137 Morand (1970), p 635. 138 Eg Recommendation

99/63/EC concerning collector coins, medals and tokens and Recommendation 98/287/EC concerning dual displays of prices and other monetary amounts, which were addressed both to the Member States and to economic agents and banks. See also Recommendation 98/288/EC and Recommendation 98/257/EC on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes. 139 Commission Recommendation 92/48/EEC on insurance intermediaries. 140 Commission Recommendation 87/63/EEC concerning the introduction of depositguarantee schemes in the Community. 141 Eg Commission Recommendation 77/534/EEC concerning a European code of conduct relating to transactions in transferable securities.

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used in the recommendation itself. Recommendation 90/109/EEC on the transparency of banking conditions is thus said to enable the competent authorities to secure on a voluntary basis the cooperation of the institutions concerned. Furthermore, the actual articles or provisions of a recommendation, following the preamble, are usually preceded by ‘it is recommended that’ or similar terms. At the same time, however, the provisions themselves are often formulated in a rather compelling way, and hence are difficult to distinguish from actual legislative provisions. Added to this is the fact that Commission recommendations often resemble legislative acts in their form as well, as they start with ‘Having regard to’ and a number of preliminary considerations (‘Whereas’), together constituting the preamble, followed by a number of separate provisions (Article 1 etc.). Moreover, although on the one hand it may be acknowledged that the recommendation has no binding force, on the other hand there may be the expectation that it will be implemented and complied with, and its application monitored. For instance, Recommendation 87/63 of 22 December 1986 concerning the introduction of deposit-guarantee schemes in the Community states that ‘an essential feature is that, on the basis of existing structures, there should be in each Member State at least one body … responsible for supervising the implementation of the code at national level’, that ‘the code should be complied with throughout the Community … ’ and that ‘any other measures they may consider necessary to promote the principles of the code and to supervise their application’ should be taken.

That implementation of recommendations is not to be regarded as a casual matter, according to the Commission, is also clear from the fact that Commission recommendations usually contain a separate section or provision on ‘Implementation’, that these provisions set out the expected or proposed way of implementation — even by national binding provisions — and that they should be put into effect within a certain time limit. Another indication is the ‘sanction’ that the Commission sometimes threatens to impose if such a deadline is not met, or the implementing measures are deemed insufficient; ie the proposal of legislation. The Recommendation on the transfer of small and medium-sized enterprises thus states bluntly that ‘To enable the Commission to evaluate what progress has been made, the Member States are invited to communicate, at the latest by 31 December 1996, the text of any legislation, regulations or administrative provisions which have been adopted in order to put this recommendation into effect, and to inform the Commission of all future proposals in this area.’ In Article 4 on ‘Implementation’ of Recommendation 98/288/EC of 23 April 1998 on dialogue, monitoring and information to facilitate the

Categories and Functions of Soft Law 165 transition to the euro, the Commission held that banks should implement the standard of good practice laid down in the recommendation by 1 January 1999 at the latest. The preamble of the Commission Recommendation of 30 July 1997 concerning transactions by electronic payment instruments and in particular the relationship between issuer and holder provides that ‘the Commission will monitor the implementation of this Recommendation and, if it finds the implementation unsatisfactory, it intends to propose the appropriate binding legislation covering the issues dealt with in this recommendation.’ Its Article 11 invites the Member States to take the necessary measures before 31 December 1998 at the latest. Eurocommissioners Monti and Bonino both underlined the existence and relevance of compliance with this deadline in the implementation of the minimum standards set out in the recommendation.142 That this practice is not new can be seen from its predecessor, Recommendation 88/590/EEC concerning payment systems, as such a threat was already indicated in that recommendation.

Finally, as a rule, the recommendations contain requests to inform the Commission of the implementation measures that have been taken and of any other action to comply with the recommendation in question. It seems that in most cases one could even speak of information and notification obligations in respect of these measures, given the mandatory way in which they are often formulated.143 This Commission practice immediately begs the question as to how far its recommendations not only intend to trigger certain legal effects, but also entail these de facto. Suffice it here to say that this will depend in the first place on the meaning to be given to the notion of ‘legal effect’.144 Furthermore, when it comes to determining what the actual legal effects are within the national legal order of the Member States, the foregoing has also indicated that much will depend on what Member States do with the recommendations. Their action may lie anywhere between two extremes: implementation by means of legislation or no follow-up at all. 5.4.3.2

Purposes and Functions

The use of recommendations occurred for the first time in the 1960s in the area of customs,145 and also in respect of the social area, the free 142 http://europa.eu.int/comm/dg15/en/finances/banks/626/htm, 2 October 1997. For another example, see Recommendation 98/287/EC concerning dual displays of prices and other monetary amounts. 143 Cf the aforementioned Recommendation on the transfer of small and medium-sized enterprises and also Recommendation 94/284/EC concerning the legal treatment of the ecu and contracts denominated in ecu. 144 See Section 6.2 on this notion. 145 Cf also Soldatos and Vandersanden (1976), p 106 ff, and their detailed overview of the recommendations adopted by the Commission up to the early 1970s.

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movement of workers and transport. After that, the emphasis shifted to the establishment of the internal market in more general terms; the free movement of goods, persons, services and capital, but also the position of small and medium-sized enterprises, energy, the environment and consumer and health protection. More recently, this use has been extended to the establishment of economic and monetary union, and also to the issue of ratification of international treaties. Furthermore, Commission recommendations often have a highly defined scope, but sometimes they are of a broader scope. The detailed examination of recommendations further reveals that the purpose of the rules of conduct thus established in the said areas may in fact be twofold: on the one hand, they may aim at the realisation of closer cooperation or coordination and on the other, they may aim at harmonisation. In my opinion, it becomes clear from the contents and wording of recommendations (and in fact of other steering soft law instruments as well) that a distinction must be made between the notions of cooperation/coordination and harmonisation when it comes to determining the purpose of these instruments. In particular, it can be argued that recommendations that aim at closer cooperation or coordination pursue a less ambitious purpose than those aiming at harmonisation, in the sense that they aim more at establishing or promoting better coordination of national policies or policy objectives, and not so much at establishing certain national legislation. The Commission may feel the desire or need to take a stand on a certain issue, and to establish common rules or principles in the Member States with a view thereto, while the Treaty does not provide for any (legislative) harmonisation activity in that particular area. This seems to be the case especially as regards recommendations adopted in areas such as social policy, environmental policy or consumer policy. They may be linked to the internal market, but not considered vital to its establishment. This also seems to be the case in those instances where Article 118 in its pre-TEU reading (now 137 EC) was chosen as the legal basis for a recommendation; at that time it aimed only at close cooperation between the Member States.146 Recommendations that aim at harmonisation go further in that they aim at aligning national legislative and administrative provisions, particularly with a view to removing obstacles that impede the realisation of the internal market and economic and monetary union. The stipulations

146 Just

some examples in this respect are Recommendation 67/125/EEC to the Member States concerning job protection for young people, Recommendation 92/131/EEC on the protection of the dignity of women and men at work and Recommendation 96/733/EC concerning Environmental Agreements implementing Community directives.

Categories and Functions of Soft Law 167 in Commission recommendations regarding their implementation can be seen as a support for this view. Sometimes, the objective of harmonisation is made very explicit in the wording of the recommendation, while in other instances this objective is formulated more implicitly, albeit clearly linked to the establishment of the internal market. Recommendation 87/62/EC on monitoring and controlling large exposures of credit institutions states in so many words that the recommendation concerns the harmonisation of provisions for large exposures. Recommendation 77/534/EEC concerning a European code of conduct relating to transactions in transferable securities says that: ‘This code of conduct is to be seen in the general context of the development and the integration of securities markets within the European Community, and seeks to establish certain general principles, supported by supplementary guidelines. The code’s objective is to establish standards of ethical behaviour on a Community-wide basis, so as to promote the effective functioning of securities markets.’

The purpose of harmonisation may also be seen from the chosen legal basis of the recommendation, although this occurs only quite rarely. Thus, in the early days of the Community some recommendations were adopted partly on the basis of (ex) Article 27 EC, which clearly aimed at bringing the national rules closer together in the area of customs.147 Furthermore, this purpose may also be deduced from the fact that Commission recommendations, as a rule, call upon the Member States to implement the recommendation and in particular to take all the measures necessary to achieve this. This also makes clear that normally the aim is not that the recommendation itself should lay down uniform rules which are to be applied in the Member States; rather it is left to the Member States how to implement the contents of the recommendation or achieve the concrete result that is aimed at. In view of the above, the Commission recommendation may, to a certain extent at least, be characterised as a harmonisation instrument.148 As such, it is an instrument quite similar to the directive, except that in principle it does not have binding force.149 However, as observed, the

147 The

now abrogated Article 27 reads:

Before the end of the first stage, Member States shall, in so far as may be necessary, take steps to approximate their provisions laid down by law, regulation or administrative action in respect of customs matters. To this end, the Commission shall make all appropriate recommendations to Member States. 148 See 149 See

the conclusion drawn already by Soldatos and Vandersanden (1976), p 105. on directives Subsection 2.4.1.4.

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Commission may also use the recommendation as merely a coordination or cooperation instrument. The dividing line in this respect is not always clear, except when the Commission explicitly speaks of harmonisation. I will pursue this issue at more length in Subsection 5.4.4.2 as regards Council recommendations. The conclusion that the recommendation can to a certain extent be typified as a harmonisation instrument, in itself logically raises the question why the directive has not been chosen, if the objective is to bring Member States’ rules closer together and to truly eliminate existing or persisting impediments to the internal market. The explanations the Commission gives for this choice are important here. Firstly, the scrutiny of its recommendations reveals that the adoption of recommendations may mark just a (first) step in the harmonisation process, alongside the development and adoption of binding instruments. Recommendation 87/62/EEC on monitoring and controlling large exposures of credit institutions was thus said to ‘represent an initial stage in the harmonization process’. They are then adopted with a view to facilitating and accelerating the harmonisation of national rules in a binding way, inter alia by gradually adjusting those rules and by gaining practical experience with common rules. As such, Commission recommendations appear to fulfil the pre-law function, meaning that recourse is had to recommendations in the context of the preparation of more far-reaching harmonisation measures through binding legislation. This preparation must therefore be understood in particular in terms of creating and/or increasing the support for future legislation and determining the possible contents thereof. Secondly, recourse may be had to recommendations because it is considered that there is no desire, need or room for legislation. Recommendation 90/109/EEC on the transparency of banking conditions relating to cross-border financial transactions expresses this in considering that uniform and binding rules are not advisable and that a recommendation enabling the competent authorities to secure on a voluntary basis the cooperation of the institutions concerned is an appropriate instrument for bringing about a change of behaviour … .

Only occasionally does the Commission give explicit consideration to why it thinks that the recommendation is sufficient action. One reason for not proposing legislation lies in the flexible nature of recommendations; they allow for a more rapid adaptation of rules to new technological developments than legislation.150 A second reason 150 An

example in this respect is Recommendation 87/598/EEC on a European Code of Conduct relating to electronic payment.

Categories and Functions of Soft Law 169 may lie in considerations of subsidiarity and proportionality, albeit the Commission does not often state this explicitly.151 A third possibility is that the chosen legal basis limits the choice of instrument and excludes the adoption of legislation. This applies in particular for those cases in which (ex) Articles 27 and 118 EC were chosen as a legal basis (alongside Article 155, now 211 EC), which prescribed the use of the recommendation. The Commission has refrained, however, from referring to this particular aspect as a reason to opt for a recommendation.152 A fourth reason may lie in the fact that no agreement on legislation can be reached in the Council or that the Commission expects this to be the case. It is remarkable that the Commission makes no mention of this either. That it is not, however, an imaginary reason for resorting to soft law instruments is illustrated by the Commission communication on an internal market for pension funds, which was adopted a few days after the Council failed to reach agreement on the proposal for a directive on this.153 From the foregoing it can be concluded that Commission recommendations may not only fulfil a pre-law function, but that they may in fact also (be intended to) function as an alternative to legislation. Sometimes, such recommendations lay down rules that are merely intended to be temporary substitutes for legislative rules, which will in all cases be replaced by legislative rules. These are possibly already in the pipeline at the time of the recommendations’ adoption. These recommendations can be said to fulfil a temporary para-law function. Sometimes, such recommendations may also be intended to function as a permanent alternative to legislation, while at the same time recognising that in practice they may only function as a temporary one. These are notably the recommendations that put legislation in prospect, in the event of unsatisfactory or non-compliance with them. Thereby it is in fact acknowledged, in my view, that there is a need for binding rules, or at least for rules that should be effectively implemented and complied with. Furthermore, it also makes clear that the same effects or results are sought as in the case of adoption of legislation.154 In the cases where it is established that there is in fact no desire, need or room for legislation, it can be argued that the recommendations are truly intended to fulfil a permanent para-law function, and thus to function 151 One example, however, is Recommendation 99/28/EC concerning the improvement of authorisation procedures for trans-European energy networks. 152 Yet, the Court has recognised that this reason may underlie the use of recommendations, by considering in Case C–322/88 Grimaldi [1989] ECR 4407, concerning a Commission Recommendation on a European list of occupational diseases, that

Recommendations … are generally adopted by the institutions of the Community when they do not have the power under the Treaty to adopt binding measures or when they consider that it is not appropriate to adopt more mandatory rules. (para 13). 153 And which was annulled by the ECJ because of its binding effect; see 154 See the recommendations mentioned in the preceding subsection.

Section 6.5.

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as a permanent alternative to legislation. This does not alter the fact, however, that in practice such a recommendation may also turn out to have functioned only as a temporary alternative, in the event that the recommendation has not been satisfactorily complied with and the Commission then proceeds to propose legislation. Naturally, this observation does not apply to recommendations that have been adopted because the Treaty rules out the possibility of legislation. The abovementioned Recommendation 90/109/EEC was thus replaced by Directive 97/5 EC on cross-border credit transfers, in which it is stated that it fulfils the conditions deriving from the principles set out in the recommendation. Also in the cases where the need for binding — legislative — rules has actually been acknowledged, it appears to depend on the particular circumstances (in particular of its implementation) whether a recommendation will function as a permanent or temporary alternative to legislation. This can be illustrated by the developments that have taken place pursuant to Recommendation 87/63 concerning the introduction of deposit-guarantee schemes in the Community, in which it was stated that practical experience should be gained of the operation of depositguarantee schemes before binding rules were put forward. Subsequently, Directive 94/19/EC on deposit-guarantee schemes was adopted,155 in which it was argued that the action the Member States had taken in response to the recommendation had not fully achieved the desired result. Later yet, Directive 97/9 on investor-compensation schemes was adopted.156 Had the Member States’ action been satisfactory, it seems that there would have been no need to resort to legislation. The example also illustrates that the pre-law and para-law functions may be seen in one and the same recommendation. When recommendations are replaced by legislation, they are sometimes repealed.157 A third, occasional reason for having recourse to recommendations is to supplement the existing Community legal framework. They may thus be adopted with a view to putting into effect or implementing legislation, or to facilitating the implementation and (uniform) application thereof or compliance therewith. This may be done by for instance providing definitions of certain concepts, whether or not used in the legislation. These recommendations can actually be considered to establish administrative rules.158 This shows that Commission recommendations may also fulfil the post-law function, when they are adopted subsequent to legislation 155 OJ 1994, L 135/5. 156 OJ 1997, L 84/22. 157 Eg Commission

Decision 95/504/EC of 23 November 1995 for instance repealed Recommendation 88/285/EEC on third party financing. 158 Eg Recommendation 98/286/EC concerning banking charges for conversion to the euro. See also Section 5.3.

Categories and Functions of Soft Law 171 and with a view to its application. In this respect the existing rules may be restated and new rules established in line therewith, although as such these are not (necessarily) inherent to the existing legal framework. They may also confine themselves to laying down new rules that aim at supplementing or implementing the Treaty provisions or secondary legislation.159 5.4.3.3

Adoption, Legal Basis, Publication and Notification

The Commission has adopted recommendations since the beginning of the 1960s. In the 1970s and 1980s, quite a few of the recommendations were still of an individual nature. Only in the 1990s does the use of recommendations of a general nature seem to have increased. Some recommendations are renewed every year.160 The recommendations may refer only to the EC Treaty, but most of them start with: ‘Having regard to the Treaty establishing the European Community, and in particular Article 155, (second indent), thereof’. Apparently, the Commission deems it necessary to somehow explain its competence to adopt recommendations and that Article 155, now 211 EC, provides the necessary legal basis. Occasionally, however, it has also mentioned specific Treaty provisions as such, but usually only alongside Article 155/211 EC. Thus, the Commission recommendations adopted in the area of customs were based on both (ex) Article 27 and Article 155 EC.161 Later, however, such recommendations were solely based on (ex) Article 155. Another specific legal basis that has been referred to is (ex) Article 118 EC, according to which opinions could be adopted with a view to establishing close cooperation between the Member States in the social area. Internal Commission recommendations, that are sent to the Council with a view to the establishment of Council recommendations or decisions, may be based on the specific Treaty articles providing for this type of action, such as Articles 99(2) and (4) and 128(4) EC. Also noteworthy is that a small number of recommendations indicate a legal basis in secondary legislation as well. In those cases, the adoption of the recommendations can be said to

159 That a recommendation may fulfil the post-law function alongside the pre- and/or para-law

function(s) is illustrated by Recommendation 77/534/EEC on transactions in transferable securities. 160 Cf the Recommendations for the coordinated programme for foodstuffs. However, as explained in Subsection 5.2.1.3, these recommendations in essence constitute (action) programmes. 161 According to Soldatos and Vandersanden (1976), p 149, thus constituting a recommendation primaire, being based on a Treaty provision. See note 147 above for the wording of Article 27.

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involve the exercise of a competence specifically delegated to the Commission in this secondary legislation.162 In adopting recommendations, the Commission does not appear to follow a particular decision-making procedure. This can partly be explained by the fact that Article 211 EC does not prescribe any particular procedure. This may only be different in the case of delegated decision-making, when the underlying directive or regulation prescribes the procedure to be followed by the Commission. Yet, a Commission recommendation may be drafted at the instigation of another EC institution or organ, for instance, following a European Parliament resolution or Council Conclusions calling upon the Commission for certain action.163 Outside actors may also be involved, for example, through expert committees and groups, study meetings (Round Tables) or studies that are undertaken.164 Consultation in a more general way takes place as well.165 In this context, it must also be observed that the rules established may be inspired by the experience that has been gained by the application of national legislation or by the consultation through informative and preparatory instruments.166 Therefore, even though it appears that the Commission normally does not establish rules of conduct in recommendations ‘out of the blue’, it is also clear that no uniform procedure or consistent approach is followed in this respect. At least, the Commission’s recommendations give no evidence of this. Much will depend on the Commission’s own view on how to proceed, and it is conceivable that this will vary according to the area at issue and even within the various Directorates-General of the Commission itself. Moreover, there is no guarantee that the outcome of the consultation process, if conducted, will be included in the eventual recommendation, or that all interests involved will be equally balanced. The question is whether this is a satisfactory way of going about things, in particular in the light of improving the effectiveness and legitimacy of Community action.

162 In

the terms of Soldatos and Vandersanden (1976), p 149, recommendations secondaires ou dérivées. An example is Recommendation 98/322/EC on interconnection in a liberalised telecommunications market, mentioning Article 7(5) of Directive 97/33, which instructs the Commission to adopt a recommendation according to a specific procedure. 163 Cf Recommendation 95/198/EC on payment periods in commercial transactions, EMU Recommendation 98/288 and Recommendation 98/257/EC on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes. 164 In this respect, see Recommendations 98/286/EC, 98/287/EC and 98/288/EC, all relating to the introduction of the euro, Recommendation 98/485/EC on childcare articles and toys … and the early Recommendation 65/379/EEC on the housing of workers and their families moving within the Community. 165 Cf Recommendation 77/534 concerning a European code of conduct relating to transactions in transferable securities. 166 Cf Recommendation 98/257/EC on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes.

Categories and Functions of Soft Law 173 Finally, external Commission recommendations have, since their first use, normally been published in the Official Journal of the European Communities, at least in the case of the general ones. This practice is still upheld today. Those of an individual nature have also been published there, but it is rather unclear whether this is always the case. It is conceivable that they might solely be sent directly to the addressee concerned.167 This publication takes place despite Article 254 EC on the publication requirement, which does not oblige Commission recommendations to be published at all. It is sometimes explicitly stated at the top of the recommendation that it is an act ‘whose publication is not obligatory’. However, according to the Rules of Procedure of the Commission, the SecretaryGeneral must ensure that Commission instruments — meaning any instrument referred to in Article 249 EC — are officially notified to those concerned and are published in the Official Journal.168 It is noteworthy that since the Official Journal was divided into the C-series and the L-series, the general, external Commission recommendations have most often been published in the L-series (Legislatio) and only occasionally in the C-series. The only reason it seems possible to give at this point for this way of publishing recommendations is that they are provided for as a legal instrument in Article 249 EC. Internal Commission recommendations, addressed to the Council, are today only published as COM documents. They are, however, mentioned as such in the C-series of the Official Journal, in the lists that are now regularly published of the documents forwarded by the Commission to the Council during a certain period. Only if the Council adopts such a proposal or recommendation will it be published in the L-series. In that event, however, it is a Council act that is at issue, and not a Commission act. 5.4.4 5.4.4.1

Council Recommendations The (Legal) Nature of the Rules

The Council recommendation is also an instrument that lays down rules inviting its addressees to adopt or to follow a certain line of conduct, or proposing that they undertake certain action. As such, they too can be said to be of a normative nature. Quite often, this is expressed by the use of the term ‘guidelines’ or similar terms. There is also frequent reference to the establishment of (common) ‘principles’ or ‘criteria’.169 The kind of

167 See also below Subsection 5.4.5 on ‘Commission Opinions’. 168 Rules of Procedure of the Commission, OJ 2000, L 308/26. See its Articles 17 and 18. 169 See, for instance, Recommendation 87/176/EEC concerning tests relating to the placing

on the market of proprietary medicinal products, Recommendation 92/442/EEC on the

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rules that a Council recommendation seeks to establish may also be expressed in its actual title. This is clearly illustrated by the recommendations adopted on the basis of Article 99(2) EC (such as Recommendation 98/454/EC), setting out broad guidelines of the economic policies of the Member States and of the Community. Council recommendations are also usually of a general nature, to be applied to objectively determined situations and not to one particular case.170 Yet, on the basis of for instance Articles 99(4) and 128(4), the Council may also make recommendations to individual Member States. Generally speaking, they are addressed to the Member States, which are called upon to implement the recommendations and the principles, criteria or rules contained therein. Sometimes, however, other addressees are specifically indicated as well and/or the Member States are called upon to ensure that these parties apply the recommendation.171 On the basis of this, Council recommendations can also be said to be of an external nature. There are also internal Council recommendations, which relate notably to the discharge to be given to the Commission in respect of the implementation of the operations of the European Development Fund. These recommendations are addressed to the European Parliament, as this is the institution that ultimately has to give the discharge. Council recommendations appear to be even more silent than Commission recommendations on the question of their legal nature, and they do not state explicitly in any way that they shall have no legally binding force. Possibly, the Council is of the opinion that this is selfevident, and can be deduced not only from the denomination of the act in combination with Article 249 EC, but also from the wording used in the recommendations themselves, such as ‘recommends’, ‘encourages’, ‘should’, ‘voluntarily’. The form in which the recommendation is usually cast is quite different from that of legislative acts.172 Quite often, the recommendation is clearly divided into two parts, the first concerning the measures actually recommended to the Member States and the second addressed to the

convergence of social protection objectives and policies and Recommendation 96/694/EC on the balanced participation of women and men in the decision-making process. 170 See, eg, Council Recommendation 98/463/EC of 29 June 1998 on the suitability of blood and plasma donors and the screening of donated blood in the European Community. See also Subsection 5.4.4.2. 171 Eg Recommendation 86/659/EEC on the coordinated introduction of the ISDN in the European Community specifies that the telecommunications administrations must implement it. 172 It is interesting that the Council’s Rules of Procedure (OJ 2002, L 230/7) contain an annex (IV) on provisions concerning the form of acts, in which regarding recommendations (and opinions) it provides only that recommendations shall include in their title the word ‘Recommendation’.

Categories and Functions of Soft Law 175 Commission with respect to its monitoring of the implementation of these measures. So, the usual shape or form of Council recommendations is in fact different from that of Commission recommendations, which because of their subdivision into separate articles give more cause for confusion with legislative acts. However, the structure and contents of the preamble of Council recommendations greatly resemble those of legislative acts. Furthermore, as has been established in respect of Commission recommendations, the actual wording of Council recommendations may also be quite mandatory (‘shall’ and suchlike wording) and may actually leave little discretion to the Member States as regards the result to be achieved. The Council evidently also deems the implementation and application of its recommendations not to be a casual matter. As regards the way of implementation, Council recommendations may even stipulate that the Member States do this by means of binding national measures.173 Specific methods of implementation, such as self-regulation, are sometimes also prescribed.174 The Council may also start out from the idea that there must be compliance with its recommendations within a certain time limit. In Recommendation 98/376/EC on a parking card for people with disabilities it was thus ‘recommended’ that Member States take the necessary steps to ensure that standardized Community model parking cards for people with disabilities are available by 1 January 2000 at the latest.

Recommendation 90/543/EEC on the coordinated introduction of pan-European land-based public radio paging in the Community set the deadline of 31 December 1992 for the introduction of the pan-European public radio paging system. Council Directive 90/544/EEC expressed even more strongly that the implementation of the recommendation ‘will ensure the start of a pan-European system by 31 December at the latest’. Such a time limit can also be considered to be established de facto, as a result of the requests, sometimes even obligations, addressed to the Member States to inform the Commission of the measures taken to implement the recommendation. Provisions of this kind are generally stated at the end of Council recommendations. Unlike in the case of

173 See

eg Recommendation 76/493 on the rational use of energy in the heating systems of existing buildings, Recommendation 86/379/EEC on the employment of disabled people in the Community, Recommendation 86/665/EEC on standardized information in existing hotels and Recommendation 86/666/EEC on fire safety in existing hotels. 174 Eg Recommendation 98/560/EC on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity.

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Commission recommendations, no ‘threats of legislation’ are linked therewith in the event that the recommendation is not (sufficiently) implemented and complied with. This is in fact quite logical, as in view of the role of the Council, it would actually amount to issuing a threat to itself.175 Therefore, like Commission recommendations, Council recommendations too may create the impression of aiming at having certain legal effects and of possibly entailing these de facto. 5.4.4.2

Purposes and Functions

In the mid-1970s and early 1980s, quite a number of recommendations related to the energy sector and the environment. Nowadays, Council recommendations are adopted in a far wider variety of areas, but all falling within the scope of the EC Treaty in some way and related, in particular, to the internal market. In short, it may be said that the rules laid down in recommendations are often considered not indispensable for the establishment of the internal market, but they contribute to the functioning thereof or to the elimination of negative side effects. Recommendations are mostly found in areas such as social policy, environment, employment, energy, tourism, but also regarding economic policy. Besides that, recommendations may also concern rather institutional matters, such as the appointment of persons to certain posts.176 Furthermore, like Commission recommendations, Council recommendations often have a quite detailed or specific scope. The close examination with a view to determining the purposes of Council recommendations reveals that although the Council has in a number of cases spoken of harmonisation and of bringing national provisions closer together, it is overall somewhat reluctant to speak of this, particularly compared with the Commission. An important exception in this respect is the telecommunications sector, which has shown a rather extensive use of Council recommendations as from the mid-1980s and which clearly aim at realising harmonisation. They have been adopted with a view to developing a common European market for telecommunications services and equipment, aiming as they do at ‘opening up’ the market and eliminating any remaining obstacles whose removal is essential to realising the internal market in respect of this particular area. An example is Recommendation 84/550/EEC concerning the first phase of opening up

175 Given

that the Council is made up of representatives of the governments of the Member States and that the Member States are generally the addressees of Council recommendations. 176 Eg Recommendation 98/318/EC on the appointments of the President, the Vice-President and the other members of the Executive Board of the European Central Bank.

Categories and Functions of Soft Law 177 access to public telecommunications contracts. Furthermore, one of the first recommendations in this field was even entitled Recommendation 84/549/EEC concerning the implementation of harmonization in the field of telecommunications. Recommendation 92/382/EEC too concerned the harmonized provision of a minimum set of packet-switched data services (PSDS) in accordance with open network provision (ONP) principles. The aim of harmonisation is sometimes also expressed in more implicit terms. More often, however, Council recommendations aim at the establishment of a common or concerted approach to a certain issue, without proceeding, explicitly at least, to harmonisation. Thus, Recommendation 95/144/EC on common information technology security evaluation criteria speaks of responsibilities of the Member States in this domain that require a concerted approach. Recommendation 98/463/EC on the suitability of blood and plasma donors and the screening of donated blood in the European Community speaks of convergence of practice. The recommendations are often also more or less confined to merely promoting cooperation between the Member States. This is reflected by the contents of Recommendation 84/646/EEC on strengthening the cooperation of the national railway companies of the Member States in international passenger and goods transport and Recommendation 98/560/EC on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity. Although it is not usually acknowledged in Council recommendations, the confinement to mere cooperation or coordination may be prompted by the provision(s) on which the recommendation has been based. It is consistent practice of the Council to indicate a legal basis in the Treaty or secondary legislation in its recommendations, from which it can be concluded that the Council does not have recourse to recommendations because a legal basis for Community action is lacking. The chosen legal basis may, however, exclude harmonisation of legislation or prescribe the instrument of the recommendation, and hence exclude the adoption of harmonisation measures in the form of a binding instrument such as the directive. Thus, Recommendation 93/404/EEC on access to continuing vocational training was based on (ex) Article 128 EC, according to which ‘action by the Community shall be aimed at encouraging cooperation between Member States …’, while excluding explicitly any harmonisation of legislation. Another illustration of this is Recommendation 98/561/EC on European cooperation in quality assurance in higher education, which was adopted on the basis of (ex) Articles 126 and 127 EC, providing for ‘(incentive) measures’ but excluding harmonisation. Recommendation 98/463/EC on the suitability of blood and plasma donors and the

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screening of donated blood in the European Community was adopted on the basis of (ex) Article 129(4) second indent, allowing in particular for the adoption of recommendations. The frequently used Article 308 (ex 235) EC also provides that the Council may adopt ‘appropriate measures’, without specifying the instrument but without excluding the possibility of harmonisation. This article provides in fact for a ‘residual competence’ in those cases where no specific Treaty basis can be identified. It seems that in some cases this may actually lead the Council to make restrictive use of this competence, in the sense of having recourse to a less far-reaching instrument than legislation.177 Harmonisation may also be explicitly ruled out in the recommendation itself, as is clearly illustrated by Recommendation 92/443/EEC concerning the promotion of participation by employed persons in profits and enterprise results (including equity participation), stipulating that it is appropriate to promote a wider spread of financial participation schemes within the Community, without seeking active harmonization or a reduction in the existing wide range of available schemes (emphasis added).178

So, generally speaking, the Council recommendation can be said to be an instrument that is directed more towards cooperation or coordination of national policy and objectives than harmonisation of legislation. In addition to what was observed in respect of Commission recommendations in Subsection 5.4.3.2 above, I deem that in the context of soft law we are actually more or less forced to make a distinction between coordination and harmonisation, precisely because harmonisation of legislation may be excluded in respect of a certain area and the use of recommendations prescribed. Moreover, one of the reasons the Council has recourse to recommendations in particular is because it considers the adoption of (binding but also non-binding) harmonisation measures not opportune. Following on from this, it can also be argued that Council recommendations do not usually pursue the same goals as legislation. At least, Council recommendations seem to show a more balanced and restrained approach than Commission recommendations. Naturally, this also has to do with the nature of the adopting institution; the Member States, united in the Council, will clearly not be inclined to go as far in a recommendation as in legislation, since they may wish to keep matters more in their own hands.

177 See

eg Recommendation 96/694/EC on the balanced participation of women and men in the decision-making process and also Subsection 3.4.1 for a more detailed discussion of Article 308 EC. 178 One might wonder what the Council actually means by ‘active harmonisation’; harmonisation by means of a binding instrument such as the directive?

Categories and Functions of Soft Law 179 The open coordination processes which take place inter alia within the framework of Articles 99 and 128 EC clearly fit in with this view. These provisions give proof of considering economic policy respectively employment policy as matters of common concern, in respect of which there is a recognised need for joint action of the Member States, at least to the extent of coordinating national policies and objectives in these areas. They do not go so far as to confer a legislative competence on the Community, but merely allow for Community action in the form of nonbinding guidelines, ultimately to be adopted in the form of recommendations. Clearly, these articles provide for the recommendation as the instrument or tool by which to shape the coordination process. ‘Open’ coordination can thus be said to go hand in hand with the use of soft law.179 Putting this in a broader perspective and given the use of the recommendation in the other areas described above, one can conclude that the recommendation is primarily used as a tool or instrument to coordinate or to bring national policies and objectives closer together, without proceeding (yet) to the legislative harmonisation level.180 The coordination of national policies through soft law instruments can thus be considered as a separate, less coercive means — alongside the approximation of the laws of the Member States (harmonisation) and the establishment of common Community policies (unification) — to realise the objectives of European integration as formulated in Article 2 EC, and as forming part of the ‘common activities’ to be developed according to this provision.181 Or in other words, the chosen instrument is indicative of the scope of the notion of coordination; if the aim of coordination is established in a directive or regulation, then it is actually harmonisation or even unification of legislation that is aimed at.182 If coordination is established in a soft law instrument, then the intention is not so far reaching.183 Given this overall more limited purpose of cooperation rather than harmonisation, the choice of the less far-reaching recommendation instead of the directive or regulation in certain cases becomes understandable. The subsidiarity and proportionality principles may well also inspire 179 Cf Régent (2003), p 38 and Hofmann (2003), p 24. 180 Which is not to say that the open method of coordination

is applied in the same manner in all these areas. Cf eg de la Porte (2002) for its application respectively to employment and social exclusion and Hodson and Maher (2001) as regards economic policy. 181 See on ‘harmonisation’ and ‘unification’ also Subsection 2.4.1.2. Cf also Barents and Brinkhorst (2001), pp 421–23, who observe that one of the forms in which coordination takes place is through non-binding instruments. 182 See also Subsections 2.4.1.3 (on regulations), 2.4.1.4 (on directives) and Subsection 1.4.3 as regards the blurring of the distinction between directives and regulations. 183 The conclusion in Lauwaars and Maarleveld (1987), pp 49–50, that there is no real difference between the notions of coordination, approximation and harmonisation can thus still be upheld in my opinion, if these are used in relation to legislation.

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the adoption of recommendations, although explicit considerations in the light of these principles in Council recommendations can rarely be found.184 It is equally rare to find explicit statements that the chosen legal basis provides for recommendations as the appropriate means of Community action. Usually, one has to infer this oneself from the chosen legal basis. The fact remains, however, that the choice of instrument is limited — either by the drafters of the EC Treaty or by a restrictive interpretation thereof — which is clearly connected with the wish to retain certain areas or issues within the competence or sphere of influence of the Member States. This can also be seen in for instance Recommendation 92/442/EEC on the convergence of social protection objectives and policies, which states that because of the diversity of the schemes and their roots in national cultures, it is for Member States to determine how their social protection schemes should be framed and the arrangements for financing and organizing them.185

In fact, other reasons may lie behind a consideration that legislation is not desirable or not necessary, such as insufficient support for more far-reaching measures or difficulty of reaching agreement on a certain matter. But, again, this is not often expressed in the recommendations themselves.186 Sometimes, one is left completely in the dark about why the particular instrument was chosen. It is possible, however, that reasons of flexibility and gradual adjustment of the national legal systems may also underlie the choice of Council recommendations.187 Thus, it is difficult to infer from the ‘Telecom Recommendations’ why the decision was made to use recommendations, albeit alongside legislation, given their clear harmonisation objective. One explanation may be the rapid (technological) developments in the area of telecommunications. The relationship they bear to the legislation adopted in this area also raises questions. Thus, it is rather strange that pursuant to Recommendation 90/543/EEC a directive was adopted, which in fact is a further specification of a point of the recommendation; that is, the determination of frequency

184 Exceptions

are, however, Recommendation 98/463/EC on the suitability of blood and plasma donors and the screening of donated blood in the European Community and Recommendation 98/376/EC on a parking card for people with disabilities. 185 Cf also Recommendation 98/560/EC on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity. 186 One example, however, is Recommendation 86/665/EEC on standardized information in existing hotels. 187 As was established in respect of Commission recommendations in Subsection 5.4.3.4.

Categories and Functions of Soft Law 181 bands with a view to the coordinated introduction of pan-European land-based public radio paging in the EC. This relationship is not elucidated in any way, nor the choice of instrument clarified.

To some extent, it already follows from the foregoing that the different functions recognised in respect of Commission recommendations are also fulfilled by Council recommendations. The pre-law function, in the sense of recommendations being used as a first step in the process of development of Community legislation or preparation thereof, is thus clearly evident in many recommendations. For instance, Recommendation 95/144/EC on common information technology security evaluation criteria states that ‘actions at national, international and Community levels provide a good basis for harmonization at Community level and for the conclusion of international agreements.’188 The post-law function has also become evident from, for instance, a number of recommendations that observe that the efforts already made need to be intensified. This may be very explicit, but may also be expressed in a more general way. Recommendation 98/463/EC on the suitability of blood and plasma donors and the screening of donated blood in the European Community made a general link with legislation, by observing that the recommendation should also contribute to the attainment of Community self-sufficiency as provided for in Community legislation. A more explicit link with legislation was clearly established in Recommendation 83/571/EEC concerning tests relating to the placing on the market of proprietary medicinal products. This recommendation was adopted in order to prevent differences of interpretation in the conduct and evaluation of the tests on proprietary medicinal products provided for by Council Directive 75/318/EEC, as amended by Directive 83/570/EEC, as well as its successor.

The post-law function may to a certain extent also ensue from the underlying legislation, providing for the adoption of further, implementing measures. Thus, Recommendations 92/382/EEC and 92/383/EEC relating to the telecommunications sector both refer to Directive 90/387/EEC on the establishment of the internal market for telecommunications services through the implementation of open network provision.189 This directive provides

188 Cf also Recommendation 82/472 concerning the registration of work involving DNA, Recommendation 86/665/EEC on standardized information in existing hotels, Recommendation 86/666/EEC on fire safety in existing hotels. 189 OJ 1990, L 192/1.

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for the adoption of certain measures and the procedure to be followed in this respect, without prescribing the form or instrument in which the measures have to be laid down. So, the recommendations in which they have been established can be seen as measures putting the directive into further effect.

Recommendations concerning the ratification of international agreements can also be said to fulfil the post-law function, in the sense of realising or promoting the proper follow-up thereof by the Member States. Finally, Council recommendations can also be considered to fulfil the para-law function, yet in a different way than Commission recommendations; in the case of the former, this function is in fact far more clearly defined within the framework of the Treaty. As established above, the Council has recourse to recommendations inter alia because the Treaty prescribes their use in a number of instances, or when the objective of harmonisation is excluded or when the Treaty basis leaves the choice of instrument more open. Although one might say that in those cases the recommendation is used as an alternative to legislation, the remark should be added that the aim is not usually to achieve the same objectives as legislation. As observed, most Council recommendations aim at cooperation and not at harmonisation, let alone the establishment of uniform rules to be applied as such directly in the national legal order. A clear illustration of this is the above-mentioned Recommendation 98/561/EC on European cooperation in quality assurance in higher education, which was adopted on the basis of (ex) Articles 126 and 127 EC. Both provisions exclude the adoption of harmonisation measures. Although the Recommendation could thus be said to have been adopted in the place of legislation, it does not aim at the more far-reaching goals that legislation usually aims at. This is also emphasised in the last point of the preamble, which recognises the ‘Member States’ exclusive responsibilities for the organisation and structure of their higher education systems and of their budgetary constraints’. In such a case, the recommendation is necessarily used as an alternative to legislation, and the para-law function of recommendations can even be deemed inherent to or prescribed by the Treaty in a certain way. It is not always easy to separate the different functions and it may very well be that different functions can be identified in one and the same recommendation. Thus, all three functions can be considered present in those recommendations in which the Council is of the opinion that Community action should not only be continued but also intensified. It may be more a question of emphasis as to which function is most apparent. The distinction between the post-law and para-law functions may also sometimes be rather fluid. On the one hand, a certain recommendation may be seen as in the line of existing policy, and as facilitating or

Categories and Functions of Soft Law 183 contributing to the practical implementation thereof, but on the other it may be seen as an alternative to legislation. The latter is the case in particular when the recommendation lays down new rules rather than mere implementing measures. Recommendation 84/549/EEC concerning the implementation of harmonization in the field of telecommunications can thus be said to unite the para-law function and the post-law function, as it is considered both to establish harmonisation and to support the Community telecommunications administrations in the implementation of the urgent harmonisation programmes established by various organisations. 5.4.4.3

Adoption, Legal Basis, Publication and Notification

It appears that external Council recommendations have been a regular feature of Community law only since the mid-1970s. This view is confirmed by the fact that Soldatos and Vandersanden’s contribution, dating from the early 1970s, focused exclusively on Commission recommendations without even acknowledging the existence of Council recommendations. Morand, in his article of 1970, recognised the fact that recommendations may be adopted by both institutions, but also largely focused on Commission recommendations. Since then, the number of Council recommendations has not really shown many fluctuations. Annual numbers range between one and six external recommendations and about three internal recommendations. Until the late 1970s Council recommendations referred to the Treaty in general, with no further specification. They include in particular a series of recommendations, which clearly go beyond what was required under Community law and what had deliberately been left outside the scope of the Treaty, at least at the time of their adoption. These recommendations concerned nationals holding certain diplomas conferred in a third State, in particular nationals of the Grand Duchy of Luxemburg holding diplomas in pharmacy and (veterinary) medicine conferred in a non-Member State. Since the beginning of the 1980s, a specific provision of the Treaty has usually been indicated as the legal basis. Like legislative acts, Council recommendations start with the first consideration ‘Having regard to the Treaty establishing the European Community, and in particular Article … thereof’. The now annual Recommendation on the broad guidelines of the economic policies of the Member States and of the Community is adopted pursuant to (now) Article 99(2) EC. Other specific legal bases that have been used are for instance (ex) Article 129(4) second indent for Recommendation 98/463/EC on the suitability of blood and plasma donors and the screening of donated

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blood in the EC; (ex) Article 75(1) for Recommendation 98/376/EC on a parking card for people with disabilities, and (ex) Articles 126 and 127 for Recommendation 98/561/EC on European cooperation in quality assurance in higher education.

Some of these Treaty provisions, such as Article 99, explicitly provide for the adoption of recommendations by the Council. The choice of instrument is then in fact determined by the chosen legal basis. However, a specific legal basis is also mentioned when it leaves open the choice of instrument. This is illustrated by the above recommendation adopted on the basis of (ex) Article 75(1), which states only that ‘appropriate provisions’, ‘common rules’ or ‘measures’ should be adopted. Where a specific legal basis can not be identified, as occurs quite regularly, the Council has recourse to the general legal basis provided for by (ex) Article 235 (now 308) EC. This provision also only provides for the adoption of ‘appropriate measures’.190 It therefore appears that the Council is very reluctant to adopt recommendations if there is no legal basis for Community action in the Treaty. Clearly, the subject matter must fall within the scope of the EC Treaty and the Council must at least take the view that adoption under Article 308 is possible. So, interestingly, unlike the Commission, the Council clearly starts from the point of view that it does not possess a general competence to adopt recommendations. An explanation for its identification of specific Treaty provisions as the legal basis for its recommendations may lie in the fact that the Treaty contains no provision applicable to the Council along the lines of (now) Article 211 second indent. Whether this further implies that the Council is of the opinion that the principle of conferred powers also applies to the adoption of recommendations is not unequivocally clear. What is clear, however, is that it at least deems it necessary to account somehow for its competence to adopt recommendations and that they in fact require a legal basis in the Treaty. In fact, this requirement is sometimes expressed in so many words in the recommendations themselves. In Recommendation 86/379/EEC on the employment of disabled people in the Community, the Council thus held that the Treaty has not provided for the powers of action required for the adoption of this Recommendation, other than those of Article 235.191

190 Eg

Recommendation 86/379/EEC on the employment of disabled people in the Community, Recommendation 85/308/EEC on social protection for volunteer development workers and Recommendation 96/694/EC on the balanced participation of women and men in the decision-making process were all based on this provision. In the telecommunications sector, (ex) Article 235 has generally been used as the legal basis for the adoption of recommendations. 191 On this issue of competence, see further Subsection 7.3.1.2.

Categories and Functions of Soft Law 185 The adoption process followed in the case of Council recommendations also shows a clear distinction from that of Commission recommendations. What is remarkable is that the Council appears to act according to an established pattern, by consistently following specific decision-making procedures. This is shown in the recommendations themselves, which, after identifying their legal basis, specify the procedure followed. As regards the external recommendations, then, it is clear that the Council only proceeds on the basis of a proposal or draft recommendation of the Commission.192 This is generally followed by the opinion of the European Parliament and often also of the Economic and Social Committee and sometimes of the Committee of the Regions, which boils down to applying the consultation procedure. The applicability of this procedure may in fact ensue from the chosen legal basis. Apparently, the Council starts from the point of view that also in the case of adoption of non-binding instruments, the procedure prescribed therein must be followed. This is illustrated by the numerous recommendations adopted on the basis of (ex) Article 235 EC, as according to this provision the consultation procedure applies, and it has in fact been followed in those recommendations. Article 128(2) EC makes unequivocally clear that not only the EP, but also the ESC, the COR and the Employment Committee have to be consulted, before the employment guidelines are drawn up. Article 99(2) states that the Council ‘shall inform the European Parliament of its recommendation.’ In certain recommendations, the cooperation procedure of Article 189C (now 252) EC has even been explicitly declared applicable and followed.193 The choice of the legal basis thus determines the way in which the Council goes about the adoption of its recommendations. Furthermore, in the case of the consultation procedure the Council may decide by either qualified majority or unanimity.194 Apart from the input of the other EC institutions and organs resulting from these decision-making procedures, it also appears that in certain cases the Council takes account of views expressed by outside parties.195 Yet, in this respect one cannot speak of a consistent approach. As is the case with directives and regulations and also Commission recommendations, Council recommendations too are clearly placed in the context of

192 See

also Subsection 5.4.3.1, where I characterised these as internal Commission recommendations. Cf Articles 99(2) and (4), 128(2) and (4), 149(4) and 151(5) second indent EC as provisions prescribing such a draft Commission recommendation or proposal. 193 Eg Recommendation 98/561/EC on European cooperation in quality assurance in higher education, based on both (ex) Articles 126 and 127 EC, and Recommendation 98/376/EC on a parking card for people with disabilities. 194 Cf for instance respectively Articles 149(4) and 151(5) EC. 195 See for instance Recommendation 87/371/EEC on the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community.

186

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other Community initiatives, legislative or otherwise, that have been taken in relation to the issue concerned. Council recommendations are also published in the L-series of the Official Journal. Sometimes, the recommendation states explicitly that it will be published in the OJ, but this is quite rare. The considerations regarding (now) Article 254 EC made above in respect of Commission recommendations also hold true for the Council ones. The Council’s Rules of Procedure state in their Article 17(2)d that recommendations shall be published in the OJ, ‘unless the Council or Coreper decides otherwise’. According to its Article 18(2) and (4), when recommendations are not published they shall be notified to their addressees and sent to the Governments of the Member States and the Commission.196 5.4.5

Commission Opinions

It appears that the Council does not make any significant use of the instrument of the opinion. A possible explanation for this may be that whereas the Treaty prescribes in a number of provisions the adoption of opinions by the Commission, it does not do so as regards the Council. The Commission has recourse to this instrument in a number of quite different situations. These have in common, however, that no general rules of conduct are laid down, but merely the Commission’s point of view given with respect to a certain way of acting in a particular case. This may concern already adopted behaviour, but also proposed behaviour. As such, the opinions aim at prescribing certain behaviour for certain addressees, and in that sense they are of both a normative and an individual nature. Sometimes, Member States that are considering the adoption of national legislative or other measures solicit the Commission’s view on the conformity of these measures with EC law. This is a first situation in which the Commission adopts opinions, expressing its viewpoint on the admissibility of such a proposed way of acting, on the basis of the review or examination it has performed. As seen in Subsection 5.4.3.1, such viewpoints were initially laid down in recommendations, but now opinions are used for this. However, the opinions of this kind still published today in the C-series of the Official Journal relate mostly to the Euratom Treaty, which has been excluded from the scope of this research. In a second situation, the Commission delivers (reasoned) opinions on its own initiative or pursuant to complaints of third parties. This is the situation where a Member State is not complying with Community law, 196 Council

L 230/7.

Decision of 22 July 2002 adopting the Council’s Rules of Procedure, OJ 2002,

Categories and Functions of Soft Law 187 for instance through failure to transpose an EC directive in time or correctly. By delivering its opinion, the Commission sets in motion the (now) Article 226 EC procedure. Such opinions are sent to the Member State, without being made public generally. The opinions adopted in the two said situations can be further characterised as external opinions; that is to say, they are directed to outside parties, in particular Member States. Thirdly, the Commission adopts opinions in the context of the decisionmaking process, in particular the application of the co-decision procedure of (ex) Article 189B(2)d (now 251(2)c) EC. These are adopted after the relevant documents have been sent to the Commission by the other institutions involved. These opinions are of an internal nature, being addressed to other EC institutions. Opinions may also concern decision-making on a particular issue, such as the decisions to be taken on applications for EU membership. Opinions themselves, like recommendations, do not give any real indications as to their legal nature; the Commission may not deem this necessary, given the stipulation of ‘no binding force’ in Article 249. So, on that basis, it seems that the addressees are not forced to comply with the viewpoints expressed therein by the Commission. However, it must be noted at this point that not complying with them may not be without (legal) consequences. In the case of the Article 226 reasoned opinions, for instance, the Commission can bring the matter before the Court if the Member State persists in its allegedly unlawful behaviour. The same may happen when a Member State proceeds to the adoption of measures in defiance of a negative Commission opinion on these. As regards the ‘decision-making opinions’, at least the ones adopted in the framework of (now) Article 251(2)c, the Commission may withdraw its proposal for legislation, as long as it has not been adopted, if it deems that its opinion is not being taken sufficiently into consideration. It already follows from the foregoing that the Treaty largely makes the choice of the instrument of the opinion itself. Thus, Article 251(2)c provides explicitly and exclusively for the adoption of Commission opinions on the amendments proposed by the Parliament. The same goes for Article 226, which prescribes the adoption of a ‘reasoned opinion’ before the Commission can start the enforcement procedure before the Court of Justice. According to Article 49 TEU, the Commission has to be consulted before the Council can take a decision on admitting new Member States to the EU. It thus appears that opinions are quite often adopted pursuant to a specific Treaty provision and that this is mentioned in them. The opinions issued in these situations actually seem to fulfil a procedural requirement imposed by the Treaties. So, there might in fact be not simply a legal competence but rather a legal obligation to deliver an opinion.197 197 See

further Subsection 7.3.1.1 on this.

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According to Article 211 second indent EC, the Commission shall deliver opinions ‘on matters dealt with in this Treaty’. The opinions issued by the Commission pursuant to a request of a Member State may thus concern any area within the scope of the EC Treaty and also of secondary Community law. The Article 226 opinions may also of course concern any subject within the scope of the EC Treaty. The opinions delivered by the Commission in the framework of Article 251(2)c can obviously only concern those areas in respect of which the co-decision procedure has been declared applicable. In view of these characteristics, the Commission can be said to adopt opinions, on the one hand, in the performance of its task of monitoring the application of EC law and, on the other, in the performance of its task in the decision-making process, although it does not express this in so many words.198 From this it can be inferred that Commission opinions mostly fulfil two functions, that is the pre-law and post-law functions. A major difference between the recommendation and the opinion, and their respective use in practice, thus appears to be that the opinion cannot be said to fulfil the para-law function, and it is not used as an alternative to legislation. The opinions adopted within the framework of the decision-making process can be said to fulfil the pre-law function. This function was explained above in particular in terms of paving the way for future legislation, in the sense of creating or increasing support therefor through the experience gained in the application of recommendations, and also in the sense of drawing conclusions from this experience as to the rules to be laid down in legislation. In the case of opinions, one might say that the pre-law function goes yet a step further. Since the ‘decision-making opinion’ is adopted at a point when the choice for legislation has long been made, the pre-law function can here be understood in terms of the (more active) involvement of the Commission in the adoption process of the legislation itself. The Commission plays a role not only as the initiator of the legislation but also at a later stage, when the Parliament envisages amendments to the Council’s common position in the framework of the co-decision procedure. Consequently, through its opinions the Commission may exercise further influence on the actual contents of the act to be adopted. The Article 226 reasoned opinions and the opinions adopted pursuant to the announcement of certain national measures by a Member State can be said to fulfil the post-law function. Here this function should be understood in terms of ensuring the monitoring of compliance with and application of Community law in individual cases. These opinions may be adopted pursuant to a complaint of a third party or on the

198 Both

purposes or tasks are listed in (now) Article 211 EC, first and third indents thereof.

Categories and Functions of Soft Law 189 Commission’s own initiative and their contents may be influenced by the information given by third parties and, of course, by the Member States themselves. According to the Rules of Procedure of the Commission, the SecretaryGeneral must ensure that opinions, being an instrument referred to in Article 249 EC, are officially notified to those concerned and are published in the Official Journal.199 Practice reveals that opinions concerning applications for membership are published in the C-series of the OJ, as well as opinions concerning proposed national measures. However, as regards the latter it is unclear whether this is consistent practice or whether the Commission may also confine itself to sending these opinions to the Member State directly. As regards Article 226 opinions, it must be considered that these are only notified to the Member States, with no publication whatsoever. The ‘decision-making opinions’, at least the Article 251(2)c ones, are only published as COM documents. However, they are also mentioned in the lists of documents forwarded to the Council, published regularly in the C-series of the OJ.

5.5

5.5.1

NON-FORMAL STEERING INSTRUMENTS

Introduction: Acts of the Member States in Different Capacities

Turning now to the non-formal steering instruments,200 their absence from the Treaty does not mean that the existence of these instruments is not acknowledged at all. For instance, Article 3 paragraph 3 of the Accession Treaty of the UK, Denmark and Ireland states that ‘Declarations, resolutions or other positions’ are adopted in the framework of the EC and that the new Member States will accordingly observe the principles and guidelines deriving from those declarations, resolutions or other positions and will take such measures as may be necessary to ensure their implementation.

As can also be derived from the case law, these instruments are thus considered to be part of the acquis communautaire, thereby raising the question as to their legal effect. As the Court held in the Hurd Case, however, this provision of the Accession Treaty ‘does not attach any additional legal effect to the measures to which it applies … ’. It is 199 Rules of 200 See also

Procedure of the Commission, OJ 2000, L 308/26. See its Articles 17 and 18. Subsection 5.4.1. Another designation is for instance Lasok and Bridge’s (1994), ‘non-obligatory acts’ and ‘non-treaty acts’, pp 135–36.

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intended to ensure that the new Member States are subject to the same obligations as the original Member States by virtue of the measures in question and to make it impossible for a new Member State to rely on the fact that such measures were adopted in its absence.201

Puissochet has held that they are in particular instruments that express more a political engagement than a legal one and non legally binding acts that can differ as to form, contents and the intention of the parties.202 The Conclusions of the ECOFIN Council Meeting concerning taxation policy, adopted on 1 December 1997, illustrate what ‘other positions’ besides declarations and resolutions may lie within the range of non-formal steering instruments. The first Annex attached to these Conclusions, was the Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council on a code of conduct for business taxation (emphasis added). This example also shows, again, that one soft law instrument may in fact ‘cover’ another or even others, thereby raising the question as to what the actual distinctions are between the different instruments.203 Most prominently, these concern conclusions, declarations, resolutions and codes of conduct or practice, which will therefore be discussed below. Furthermore, the example also makes clear that solely the Council adopted the conclusions, whereas the resolution and the code of conduct were joint acts of the Council and the Representatives of the Governments of the Member States. In fact, it appears that only occasionally are non-formal steering instruments adopted by the Commission, and that they are primarily used by the Council, the Council and the Member States jointly and the European Council. A preliminary question is thus what relevance should be attached to the different capacities in which representatives of the Member States make use of these instruments. In Subsection 2.6.1 it was observed that a long-standing feature of Community law is that acts are adopted not only by the Council, ie acts adopted by the Council of Ministers of the EC (now EU), but also by the Representatives of the Governments of the Member States, often meeting in Council (further: RGM acts). In addition, the Council and the Representatives of the Governments of the Member States also adopt

201 Case

44/84 Hurd [1986] ECR 46, paras 29–30. Cf also Puissochet (1974), as cited by Borchardt and Wellens (1989), p 297. 202 Puissochet (1974), as cited by Borchardt and Wellens (1989), p 297. 203 Furthermore, the ECJ equally does not always seem to make a distinction between for instance ‘declarations’ and ‘resolutions’, since it has used these terms interchangeably. See for instance Case 32/79 Commission v UK [1980] ECR 2403, paras 11 and 12 in respect of the ‘Hague Fisheries Resolution’. The ECJ also referred to this as a ‘statement’ (para 3). See further Subsection 8.5.3.3 on this case law.

Categories and Functions of Soft Law 191 acts jointly; I referred to these as mixed acts. Sometimes, there is further specification of who the RGM are in a certain instance, for instance the ‘Ministers of Health’ or the ‘Ministers of Education, meeting in Council’. Initially, RGM acts and mixed acts were simply designated as ‘act’ or ‘decision’ but later, it became practice to lay them down in specific instruments. The above-mentioned resolution provides an illustration of this. RGM and mixed acts are now adopted not only as resolutions but also often in the form of declarations, conclusions and codes of conduct. In legal writing, the issue of their actual connection with Community law, in particular whether they constitute Community (soft) law or rather international (soft) law agreements, was given consideration from a very early stage. In general, it can be observed that whether or not these acts are of a Community (legal) nature is considered to be determined by the adopting actor(s) and the issue of competence. A number of authors have thus suggested that RGM acts have often been adopted in cases where a legal basis in the E(E)C Treaty was lacking. It also appears to be a quite generally accepted view that RGM acts are in fact ‘products’ of a diplomatic conference and not Community (Council) acts. In a contribution dating back to 1966, Pescatore thus considered that RGM acts are in fact international or diplomatic acts or treaties that are linked to Community law, in the sense of being complementary to the E(E)C Treaty in both a substantive way (in contents) and an institutional way (as to the system of legal instruments). Yet, they are situated outside the procedural framework, competence rules and judicial control of the E(E)C. Isaac’s view largely concurs with that of Pescatore, but he puts more emphasis on the (three) situations in which recourse is had to RGM acts. Firstly, they are adopted in those areas that have been reserved to the Member States by the Treaty itself. Secondly, they may be adopted in relation to issues that are not covered by the Treaty. Thirdly, they may also concern subjects that are only partly covered by the Treaty.204 Everling also clearly links the phenomenon of RGM acts to the issue of competence by considering that resolutions have been adopted by either the Council or the Member States, depending apparently on whether the matter at issue was considered to fall within the general framework of the Treaty or not. Mixed acts have been adopted, in his view, when there was no agreement on whether their contents fell within the scope of the Treaty, and as such within the coordinating competence of the Council.205

204 Pescatore

(1966), p 580 and Isaac (1998), pp 152–53. See also Jacot-Guillarmod (1979) and Commentaire Mégret (1993), p 216. 205 Everling (1987), p 418. Cf also Dewost (1987), p 328.

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Community Soft Law Instruments

According to Borchardt and Wellens, RGM acts have been particularly used in order to simply and informally lay down what was agreed between the Member States when there was no legal basis in the EEC Treaty for a legally binding decision or such a legal basis was not deemed opportune.206

RGM resolutions have been adopted, they argue, when Community competence is lacking but the resolution does in fact express some relation to the Community. They further hold that the Council adopts resolutions when their subject matter and contents are deemed to fall within Community competence. The mixed act is chosen when these fall only partly within Community competence. They suggest that the relevance of RGM acts has declined because of the increased use of Article 235 (now 308) EC and the extension of Community competences.207 From this discussion in legal writing it can thus be inferred that RGM acts are in fact international treaties, or at least intergovernmental acts, in that they concern matters falling outside Community competence, although they do have some link with the EC. This viewpoint has also been confirmed by the Council, in answer to a written question of the EP; it held that the Resolution of the Ministers for Cultural Affairs, meeting within the Council on 13 June 1985 concerning the European City of Culture constituted an intergovernmental agreement or act.208 As RGM acts are thus international law acts rather than Community law acts, they will not be further considered in this study. Mixed acts fit more within the Community legal order, since the Council also adopts them and thus touch upon Community competences. These will therefore be dealt with below. Finally, European Council acts form a separate category of acts, adopted by the Member States in yet another capacity. The European Council was formally recognised as a Community organ only with the adoption of the TEU, although it already existed for some time before that. According to Article 4 TEU, the European Council consists of the Heads of State or Government of the Member States and the President of the European Commission, assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. This article states further that: The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.

206 Borchardt and Wellens (1989), p 297. Cf also Commentaire 207 Borchardt and Wellens (1989), p 301. 208 Written question 2016/85 (Andrews) OJ 1986, C 99/33.

Mégret (1993), p 153.

Categories and Functions of Soft Law 193 Given this quite general ‘assignment’, it is not surprising that these guidelines may actually cover a wide variety of areas and topics, whether within the scope of the EC Treaty, the second and third pillars of the TEU or even matters of possible future Community concern. These guidelines, adopted by common agreement and usually laid down in conclusions, are thus of considerable importance with a view to furthering the European integration process. The conclusions are adopted at least twice a year, at the end of the half-yearly meetings of the European Council concluding the period of presidency of the Council by one of the Member States. They may, however, also be adopted more often, as the European Council may also convene between the half-yearly meetings if this is deemed necessary. Furthermore, it also appears from Articles 99(2) and 128(1) EC that the European Council each year adopts conclusions regarding respectively economic policy and the employment situation in the Community, thus playing its own part in the process of open coordination that takes place on the basis of these provisions. These conclusions are not aimed at laying down general, concrete rules of conduct, but rather establish the core elements and priorities of future national, Community and Union policy.209 This is often also true of other soft law acts adopted by the European Council, such as declarations and resolutions.210 These then have to be further developed by the Community institutions and/or the Member States, inter alia by putting forward Commission proposals. As such, these conclusions can therefore be said to fulfil the pre-law function and to entail more a political engagement than a legal one. This may also explain why European Council conclusions are not usually published in the Official Journal, but merely in the Bulletin of the EC, Agence Europe and on the Internet. Given that the acts of the European Council fall at least partly outside the scope of the EC Treaty and that the focus here is on Council (of Ministers) and Commission acts, I will not deal with European Council acts in further detail.

5.5.2

Council Conclusions

Focusing on Council conclusions first, it may be observed that they can actually vary quite a bit as to wording, form and structure. One thus

209 The

Conclusions of the European Council of Tampere, 15 and 16 October 1999, thus concerned the elaboration of a future common asylum policy and contained political guidelines concerning the free movement of nationals of third countries. 210 Cf the European Council Resolution concerning the introduction of the European Monetary System (EMS) of December 5, 1978 and the Resolution of 7 July 1997 on the legal framework for the introduction of the euro, OJ 1997, C 236/7.

194

Community Soft Law Instruments

comes across very brief conclusions, covering barely half a page, whereas others are considerably longer and more detailed, sometimes even containing a preamble or introduction, a number of specific considerations and an annex.211 In general, the nature of the provisions laid down in Council conclusions is twofold. Firstly, Council conclusions always contain provisions or considerations of a declaratory nature, expressing the views of and the agreement reached within the Council on a certain matter. This can be seen in the verbs chosen: The Council stresses, recalls, notes, agrees, considers, underlines, emphasises, recognises, welcomes, appreciates, etc. Furthermore, this is usually done in a rather general way, without establishing concrete rules or measures. The Council Conclusions of 13 December 1993 on self-sufficiency in blood in the European Community are an example of not only very concise, but also of purely declaratory Council Conclusions. As such, conclusions are also a means to inform the public of the Council’s viewpoints and of the ways in which certain matters should or will be approached in the future. Sometimes, one also finds the indication ‘Information’ in the Official Journal itself, preceding the text of the conclusions. Secondly, Council conclusions may also contain provisions of a requesting nature, calling upon the Commission and/or the Member States to take certain action. This is expressed by the use of words such as invites, asks, calls upon, requests and the like. The action requested aims primarily at enabling the Commission to develop further initiatives on the basis of the prescribed action, which often concerns the submission of certain data by the Member States to the Commission, the drawing up of Commission reports on the basis thereof and the possible development of proposals for future initiatives by the Community or the Member States. Council conclusions are thus mostly addressed to the Commission, but regularly to the Member States as well, insofar as the submission of certain information is concerned. One may also find self-commitments in Council conclusions and occasionally other addressees are mentioned too, such as management and labour and other concerned parties. So, whether confined to being an act of a declaratory nature or going further by calling upon the Commission and/or the Member States to develop certain action, it appears that Council conclusions do not specifically aim at laying down general rules of conduct and having external effect. What they give are, usually very broad, indications as to the direction in which future action should be developed and the principles on which this action should be based. Thus, more in general, conclusions can 211 For examples of the latter type, see the Council Conclusions of 20 December 1996 on a strategy for lifelong learning and the Council Conclusions of 20 December 1996 on school effectiveness: Principles and strategies to promote success at school.

Categories and Functions of Soft Law 195 be typified as political statements expressing some common agreement on future Community action. Very occasionally one comes across Council conclusions that intend to lay down general and external rules, but such a case involves particularly Council conclusions that actually cover other soft law instruments. A clear example is provided by the Conclusions of the ECOFIN Council concerning taxation policy, already mentioned in Subsection 5.5.1. As will be seen below, the instruments of the resolution and the code of conduct may actually entail general rules of conduct, and also be intended to have external effect. Only in exceptional instances do Council conclusions themselves establish such external, general rules of conduct.212 Finally, some examples can also be found of Council conclusions laying down internal rules of conduct of a rather procedural nature.213 The Council refrains from indicating in its conclusions whether they are legally binding or not. Given the nature and purpose of the rules laid down in most of them, one can say that in general they do not aim at being legally binding. Usually, Council conclusions are also quite distinct from legislative acts as regards form and wording. Nonetheless, it is possible to find examples of conclusions that at first sight create the impression of a legislative act, inter alia, by providing a legal basis and a drafting similar to that of legislative acts.214 However, they are not subdivided into separate articles, nor do they contain specific provisions regarding their implementation. They occasionally contain time limits, but these generally only relate to examinations to be made by the Commission or the submission of reports by the Member States and/or the Commission. Council conclusions are quite frequently adopted in the areas of education, health and culture, but also in areas such as taxation, the fight against fraud, consumer protection, social affairs and employment. In fact, it appears that quite a number of Council conclusions are adopted pursuant to some preparatory Commission initiative, in particular Commission Green or White Papers, communications, memoranda or the

212 Eg

the Council Conclusions of 27 May 1997 concerning the practical implementation of the Dublin Convention and the Conclusions of 20 December 1996 on a strategy for lifelong learning. 213 Eg the Council Conclusions of 9 March 1998 concerning the establishment of the Code of Conduct Group (business taxation), following from the above ECOFIN Conclusions and clearly establishing the rules on the basis of which such a Group is to be composed and set up, and how it has to function. 214 Eg the Council Conclusions of 20 December 1996 on a strategy for lifelong learning, referring to (ex) Articles 126 and 127 EC, the Council Conclusions of 16 December 1997 on the evaluation of quality in school education, referring to Article 126, and the Council Conclusions of 17 June 1994 on drawing up a Community Action Plan in the field of cultural heritage, referring to Article 128.

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Community Soft Law Instruments

like. This may also be expressed in the title itself.215 The Council then gives its views on the action proposed by the Commission to which it has been invited to react. Conclusions can thus be said to be a steering instrument, in that they establish the political acceptance of or agreement on preparatory action developed by the Commission and the direction that future Community action should take. As such, they provide a (political) starting point for the development of more concrete Community law and policy in a certain area. It also follows from this that Council conclusions do not normally aim at realising harmonisation or cooperation between the Member States. In other words, it appears that most Council conclusions fit more within the process of preparation and elaboration of future Community action, rather than constituting Community (soft) law rules in their own right. The most important function of Council conclusions can therefore be said to be the pre-law function. This is apparent, for instance, in the Council Conclusions of 17 June 1994 on drawing up a Community Action Plan in the field of cultural heritage, as well as in the Council Conclusions of 26 November 1998 on the future framework for Community action in the field of public health. To a very limited extent, Council conclusions can also be said to fulfil the post-law function, in the case of the (rare) conclusions laying down external and internal rules of conduct. These conclusions are adopted with a view to complementing the existing legal framework, as they give additional guidelines for its practical implementation.216 As regards the issue of legal basis, a general reference to the Treaty can sometimes be found at the beginning of the conclusions. Since the beginning of the 1990s, several of the Council conclusions relating to the areas of education and culture have in fact referred to specific Treaty provisions, sometimes in the same way as in legislative acts and sometimes in a more general way.217 Such references at least make clear that the subject matter of the conclusions at issue falls within the scope of Community law. However, in most cases, no reference is made to specific Treaty articles. Council conclusions have been a regular phenomenon since at least the mid-1980s.218 However, their use (or at least their publication) seems to have increased since 1994 in particular, as the Official Journal has contained many more conclusions since that time.219 Before that, only a few 215 Eg the Council Conclusions of 22 September 1997 on the communication concerning the White Paper ‘Teaching and learning towards the learning society’. 216 For instance, the Council Conclusions of 27 May 1997 concerning the practical implementation of the Dublin Convention. 217 See above note 214 and also Subsection 5.5.3 for reasons behind this change. 218 The OJ-Online contains references to Council, RGM and mixed Conclusions only back to 1985. 219 On average eight to ten every year.

Categories and Functions of Soft Law 197 were published each year, and some years there were none at all. The Council does not seem to follow a specific adoption procedure, or at least nothing is said about this in the conclusions themselves. One may therefore wonder for instance whether these conclusions are adopted with unanimity or qualified majority. Yet, when a specific Treaty provision or in fact legal basis is mentioned, it appears likely that the decisionmaking procedure prescribed by that provision is followed.220 In addition, although Council conclusions are not adopted pursuant to a concrete Commission proposal, they often constitute a reaction to some Commission initiative. The observations made up to now are true of the body of Council conclusions published in the Official Journal, in the C-series, but there is reason to believe that Conclusions are not in fact published there in all instances. The Council’s Rules of Procedure thus state that it is to be decided on a case-by-case basis whether Council acts other than the formal ones are to be published in the OJ.221 Equally, it is not clear whether Council conclusions are made known in any other way; the Rules of Procedure do not list them among the acts to be notified. Yet, they may be published on the Internet, in Agence Europe and/or the Bulletin of the EU. So, apparently the Council deems publication in the C-series of the OJ sufficient, also in the (few) cases in which third parties are requested to develop certain action.222

5.5.3

Council Declarations and Member State Declarations

Council declarations may in fact be quite similar to Council conclusions. As the name of the instrument indicates, declarations are first and foremost of a declaratory nature; they make known, usually in a very broad way, what the policy priorities are which the Council has established in a certain area. A clear example is the Council Declaration on the legislative programme.223 There are often no specific addressees, and one can therefore say that Council declarations are external in the sense that they are intended to inform the public of the positions taken by the Council and/or of the

220 The

practice followed by the Council in respect of the adoption of recommendations points in this direction. Decision of 22 July 2002 adopting the Council’s Rules of Procedure, OJ 2002, L 230/7, Article 17(4). 222 Cf the Council Conclusions of 26 May 1987 on protective legislation for women in the Member States of the European Community, calling upon the Member States and management and labour to review the protective legislation for women with the aim of promoting desegregation and more adaptable patterns of work. 223 OJ 1994, C 60/25. 221 Council

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action or policy it proposes to develop in the future. Only occasionally are they external in the sense of calling upon the Member States to develop a certain line of action. Hence, from the viewpoint of action to be taken they are primarily an internal instrument, addressed to the Council itself and/or the Commission.224 The action they may request the Member States and/or the Commission to take is frequently framed in very general terms, again often along the lines of conducting examinations, exchange of information and production of reports, without spelling out very concrete obligations of a substantive nature. As such, declarations are rather similar to Council conclusions. An example is the Council Declaration of 19 December 1991 on the implementation of the Commission recommendation on the protection of the dignity of women and men at work, including the code of practice to combat sexual harassment. This declaration invited the Member States ‘to develop and implement coherent, integrated policies to prevent and combat sexual harassment at work, taking account of the Commission recommendation’, without however concretising itself what these policies should consist of. The Commission was further invited ‘to promote an adequate exchange of information with a view to developing existing knowledge and experience in the Member States as regards the prevention and combating of sexual harassment at work’. Yet, this example also shows that one could speak of Council declarations establishing general rules of conduct in a more indirect way; although the declaration itself cannot be said to lay down such general rules of conduct, the Council in fact did this by adopting the Commission recommendation in the declaration and calling upon the Member States to adapt their national policies to the rules of conduct established in that recommendation. Council declarations may also be closely linked to other acts (of the Community or the Member States) in a different way, in which case they are to be clearly distinguished from the above type of declarations.225 Individual Member States also adopt such declarations linked to a particular act of the Community or the Member States. Council and Member State declarations of this latter type have been described in legal writing as interpretative declarations, as they present jointly (objectively) or unilaterally (subjectively) the interpretation to be given to certain points of the adopted act, or clarify the proposed application in the future. These declarations are considered to be of particular importance with a view to achieving compromises in the decision-making process in the Council.226 Generally 224 Cf Isaac (1998), p 154. 225 See eg the Council declaration

made pursuant to Article 2 of the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office. 226 Borchardt and Wellens (1989), p 302. Cf also Everling (1987), p 430.

Categories and Functions of Soft Law 199 speaking, it appears that declarations of this type do not aim at laying down rules of conduct, meant for general application by outside parties, in particular the Member States. Insofar as one can say that rules of conduct are at issue, they are mainly of an internal nature. That is to say, they form primarily a guideline for future conduct/interpretation only for the Council or the individual Member States issuing the declaration.227 The Council abstains from mentioning in so many words in the declarations that they lack legally binding force. They may use terms of a rather permissive nature, not evoking the impression of creating concrete obligations.228 Other Council declarations do, however, create the impression that they aim at legal effect or may entail this.229 No intention of legally binding force can as such be inferred from the form in which declarations are cast. Very occasionally, they contain a kind of preamble or introduction and a number of separate considerations. In most cases, however, they are in no way analogous to a legislative act, as they do not contain separate clauses or articles and consist of just a few lines. Furthermore, as a rule they do not contain provisions on their implementation. The substantive scope of the declarations at issue here may vary quite considerably, for instance, regarding the issue of sexual harassment of men and women, duty exemptions, Community conventions and the annual legislative programme. Yet, they have in common that they fall somehow within the scope of the EC Treaty. Sometimes they are of a rather general nature but sometimes they are very specific, in particular the interpretative declarations relating to a certain provision of a Community act. Council declarations do not themselves explain why this instrument has been chosen. However, a possible explanation might be that declarations are used in cases where the aim is simply to make public a certain state of affairs or standpoint on the policy to be pursued. As such, declarations can be said to have an informative function. The declarations of a declaratory and requesting nature can also be said to fulfil the pre-law function, insofar as they are adopted with a view to the elaboration of further Community action. As such, like Council conclusions, they can be typified as political statements expressing some common agreement on

227 However,

these declarations will be dealt with in more detail in Subsection 9.4.2, where a further distinction is made between Council and Member State interpretative declarations as regards their possible relevance for the interpretation of Community law by the Community courts. 228 A clear example in this respect is the Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, which merely stresses ‘the need for an examination as soon as possible of possible ways of reducing the length of … proceedings’. 229 See for example the declaration mentioned in note 225.

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future Community action and as providing a political starting point for the development of more concrete Community law and policy in a certain area. Sometimes, however, one gets the impression that these declarations are used as a substitute for legislation (temporarily at least), as in the case of for instance the Council Declaration on the protection of dignity of women and men at work. Apparently, the Council deemed the declaration sufficient Community action for the adoption and implementation of the Commission recommendation. The so-called interpretative declarations can be said to fulfil both the pre-law and the post-law function; this in the sense that these declarations not only facilitate the adoption of legislative acts, but also constitute a complement thereto in the way explained above. Council declarations consistently refrain from mentioning any legal basis in the EC Treaty. Nonetheless, the fact that the Council alone is adopting the declaration permits the inference that its content is considered to fall within the scope of the EC Treaty and as such within Community competence.230 The Council also refrains from indicating whether it has adopted the declarations by unanimity, qualified majority or otherwise. Nor do the declarations give any indication as to the possible involvement of other institutions or outside parties in their adoption process. Only occasionally is there reference to other (soft law) acts that have been adopted previously by the Council or by other Community institutions on the matter at issue. As to the numbers of declarations adopted by the Council, it is difficult to make any pronouncement, as publication is not consistent practice. When Council declarations are published, it can be in both the C–series and the L-series of the Official Journal. The latter seems particularly to be the case with interpretative declarations relating to another Council act whose publication in the L–series is compulsory. However, such interpretative declarations may not be published at all in other instances, being only attached to the minutes of the Council, which are not frequently published.231 5.5.4

Joint Declarations and Inter-Institutional Agreements

Instruments of another kind are the joint declarations and inter-institutional agreements adopted by at least two, but most often three Community institutions; the European Parliament, the

230 See above Subsection 5.5.1 and below Subsection 5.5.7. 231 An exception in this respect is the Declaration, annexed

to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, which was published in the C–series.

Categories and Functions of Soft Law 201 Commission and the Council. Sometimes, the terms ‘joint declaration’ and ‘inter-institutional agreement’ are treated as synonyms in legal writing, 232 but the term ‘joint declaration’ has also been considered more an umbrella term, covering different kinds of declarations.233 As such, the inter-institutional agreement can be regarded as an increasingly important type of joint declaration of the Community institutions which, although existing for some time before that, is found under the denomination of inter-institutional agreement only towards the end of the 1980s.234 Joint declarations and inter-institutional agreements appear to lay down rules of conduct, which may differ in nature. Thus, a considerable number of them establish rules of a rather internal and procedural nature, directed towards the institutions themselves and concerning the arrangement of inter-institutional relations and cooperation in legislative and budgetary procedures.235 The use of this kind of declarations can be explained by the need for further rules regarding the practical application by all institutions of certain procedures and principles.236 As such, they are a means to reinforce inter-institutional cooperation and to facilitate the decision-making process. Snyder has held in this respect that the (increasing) use of inter-institutional agreements can be explained by the structural factors of the EU system, such as the lack of a clear division of power or of detailed rules governing relations among institutions.237 In view of the above, they can be said to fulfil both the post-law and the pre-law function; post-law, for being related to the practical application of existing procedures, and pre-law for facilitating the decision-making process.238 Joint declarations are in practice not necessarily confined to laying down rules with respect to the mutual relationship of the institutions. 232 Monar (1994), p 696. 233 Snyder (1996), pp 454 and 458. 234 The Inter-institutional Agreement

of 29 June 1988 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure is said to be the first. See Snyder (1996), p 456, and Monar (1994), p 696. 235 Ibid and further the Joint Declaration on a conciliation procedure between Council, Commission and European Parliament, the Joint Declaration on practical arrangements for the new co-decision procedure, the Joint Declaration on the incorporation of financial provisions into legislative acts and the Inter-institutional Agreement concerning the interpretation of the subsidiarity principle. 236 Cf also the joint Code of Conduct on access to documents, adopted by the Commission and the Council in 1993. 237 Snyder (1996), p 463. It is also clear that some authors consider inter-institutional agreements to be a means of adding to the competences of the European Parliament, as is evident from the title of an article by M. and D. Waelbroeck (1988), Les ‘déclarations communes’ en tant qu’instruments d’un accroisement des compétences du Parlement européen dans l’évolution institutionelle. 238 Although in Subsection 4.6.2 these functions were explained in a substantive way, they can thus here also be understood in a procedural sense.

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In particular, they may also be of a more substantive nature, not so much establishing ‘hard’ rules of conduct as containing rather general statements of principle on matters such as the respect of fundamental principles.239 As such, these declarations can be said to fulfil either the pre-law or para-law function or possibly both. A few examples here are the Declaration against Racism and Xenophobia and the Joint Declaration on Fundamental Rights. Joint declarations may also be linked very clearly to another Community act and constitute a kind of addition thereto, without even having a specific title. These are often very concise and closely resemble interpretative Council declarations, discussed above. As such, they can also be said to fulfil the post-law function.240 The substantive declarations are not addressed to anyone in particular. They are more statements of how the institutions look at or will deal with certain issues and as such mostly constitute a guideline for their own future behaviour. The same can be said for the interpretative declarations. Nonetheless, both these declarations and the procedural inter-institutional agreements may to a certain extent have external effects, as they give rise to the expectation of certain conduct of the institutions. Again, it can be observed that joint declarations and inter-institutional agreements do not usually explain their intended legal nature. Interestingly, in answering a parliamentary question on the legal effects of joint declarations such as the Joint Declaration on the conciliation procedure, the Commission considered them to be merely ‘political declarations of intent constituting a political and moral commitment’, whereas the Council deemed them ‘political undertakings’ whose legal scope is eventually to be determined by the Court of Justice.241 Rather exceptionally, the Inter-institutional Agreements of 1988 and 1993 on budgetary discipline state that, under those agreements, budgetary discipline ‘is binding on all the institutions involved for as long as the Agreement is in force’. The Inter-institutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation states explicitly that the guidelines laid down therein ‘are to be regarded as instruments for internal use by the institutions. They are not legally binding’. Not only the nature of the rules laid down may vary, but also their form and wording; some declarations are very concise, consisting of only a few lines and not resembling a legislative act in any way, whereas others are far more elaborate, containing a preamble and several subheadings. Furthermore, some are formulated in permissive terms, whereas others

239 Monar (1994), p 694 speaks of ‘questions of political substance’. 240 See, for instance, the Joint Declaration published in OJ 1993, L 101/16. 241 Written questions 169/77 (Maigaard) OJ 1977, C 259/4; 170/77 (Maigaard)

OJ 1977, C 180/18; and 128/77 (Dondelinger) OJ 1977, C 259/4. See also Monar (1994), pp 697–98, and Lenaerts and van Nuffel (1999), p 713.

Categories and Functions of Soft Law 203 are rather compelling, in using verbs like ‘shall’. Such a wording may be an indication that legal effects are in fact intended.242 Joint declarations and inter-institutional agreements do not indicate a legal basis in the same way as legislative acts, but obviously they refer to the Treaty provisions or legislative acts to which they relate. This goes in particular for the declarations of an internal, procedural nature and the interpretative declarations. It also appears that in some cases the EC Treaty provides for the adoption of procedural rules, which have then been established in inter-institutional agreements.243 Quite a number of these agreements are concluded, however, without the EC Treaty in fact providing for such rules. This was the case, for instance, with the Interinstitutional Agreement concerning the organisation of the conciliation committee in the Article 189b procedure and the aforementioned Interinstitutional Agreement on common guidelines for the quality of drafting of Community legislation. The latter does, however, refer explicitly to Declaration No. 39 on the quality of the drafting of Community legislation, annexed to the Treaty of Amsterdam. It is not always clear which institution has initiated a declaration or agreement and what procedure has been followed for its adoption. However, the institutions involved all have to agree upon its contents before it can be adopted. They are not always published, it seems, which makes it difficult to give numbers of the declarations and agreements adopted hitherto.244 When they are published, then it is mostly in the C-series of the Official Journal, but the interpretative declarations (as they accompany a legislative act) and some of the others have been published in the L-series.

5.5.5

Council Resolutions

Borchardt and Wellens have described the RGM decisions as the precursor of today’s resolutions.245 The first published resolutions date back to 1962, and were related to the area of agriculture and fisheries.246 Since the early 1970s, there has been a gradual expansion of the areas in which resolutions have been adopted; free movement of goods and persons, regional policy, the telecommunications market, environmental and social policy, 242 An example of the latter is the aforementioned Joint Declaration on practical arrangements for the new co-decision procedure. See also Section 6.5. 243 See further Subsection 7.3.2 and Monar (1994), p 697. 244 Snyder (1996), p 466, gives a (non-exhaustive) overview. 245 Borchardt and Wellens (1989), p 298. 246 Cf the Résolution du Conseil (produits laitiers), OJ 1962/30, p 1006 and Résolution 64/128 du Conseil sur les principes de base de l’organisation commune des marchés dans le secteur des matières grasses, OJ 1964/34, p 602. [Not published in English].

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relating in particular to energy, forestry, employment, health and consumer protection, education, equal treatment of men and women, equal opportunities for disabled persons, television, culture, etc. They also relate to issues such as international organised crime, illicit drug trafficking, football hooliganism, admission of third-country nationals to Member States, marriages of convenience, etc. These fall within the scope of the third pillar of the TEU, concerning cooperation in the fields of justice and home affairs, which is excluded from the present research. Furthermore, Council resolutions often concern intra-Community matters, but they may also concern the relationship of the Community and/or the Member States with third countries. Quite a number of resolutions deal with institutional matters, such as the quality, quantity, simplification and forms of Community legislation and action. The resolution now seems to be one of the most frequently adopted non-formal steering instruments and in fact resembles the Council recommendation in several respects, such as the nature of the rules and their purpose and function. Council resolutions thus contain considerations of — at least — two kinds. Firstly, they usually start with considerations expressing opinions, acknowledgements, recognitions, confirmations of certain views or considerations stressing the need or desirability of certain actions. This is emphasised not only by using verbs of this kind, but often also by putting them in capitals. Secondly, resolutions call upon their addressees to undertake or continue certain actions, the contents of which are determined by the previously expressed views of the Council. This becomes clear from the use of terms such as ‘guidelines’, ‘principles’, ‘indications’ and the like, which may already be contained in the title of the resolution. It may also be expressed by the terms ‘calling upon’ or ‘inviting’ the addressees, followed by the action to be taken.247 In short, Council resolutions establish on the one hand standpoints in the broadest sense of the word and, on the other, guidelines for further action. As such, they can be said to lay down rules of conduct that aim at influencing behaviour or at inducing the addressees to certain action, and thus to be of a normative nature. At the same time, they can also be said to be of a general nature and not to relate to one particular, individual case. Most often, Council resolutions are addressed to both the Commission and the Member States, although they may be mainly addressed to either

247 Examples are the Council Resolution of 6 February 1979 concerning the guidelines for Community regional policy, the Council Resolution of 7 February 1994 on universal service principles in the telecommunications sector, the Council Resolution of 20 January 1997 on the integration of cultural aspects into Community action, the Council Resolution of 15 December 1998 on a forestry strategy for the European Union, the Council Resolution of 17 December 1998 on operating instructions for technical consumer goods and the Council Resolution of 19 January 1999 on the consumer dimension of the information society.

Categories and Functions of Soft Law 205 one. As such, they can be characterised as being of both an internal and an external nature, but possibly more the one than the other in a particular case. Only occasionally are other addressees indicated, and this in a rather indirect way; the Member States are then called upon to ensure that these third parties take certain action. The Council Resolution of 15 December 1997 on the 1998 Employment Guidelines thus states that the implementation of the employment strategy ‘calls for the combined efforts of all concerned: Member States, regions, social partners and Community institutions’. Finally, a number of resolutions can be characterised as ‘mainstreaming’ resolutions, as these clearly aim at having certain principles taken into account in the development of Community policies in general. As such, these resolutions are of a more internal nature.248 Council resolutions too are usually silent on their (intended) legal nature. Yet, it is observed in some resolutions that only the political will of the Member States is being expressed and that no rights or obligations are conferred upon them. Some authors have argued more in general that resolutions are only declarations of intention, expressing essentially the political will of the Council.249 Borchardt and Wellens appear not to agree with this view, arguing that, at least as regards structure and composition, some Council or mixed resolutions show a strong resemblance with binding acts that are adopted on the basis of (ex) Article 235 EC, referring moreover to a proposal of the Commission, an opinion of the EP and the ESC and, in some cases, even to Treaty articles.250 Overall, however, I deem that nowadays it occurs only rarely that the form and structure of Council resolutions give the impression of a legally binding act, apart perhaps from the preamble that usually precedes the actual provisions of the resolution. In this respect, Council resolutions appear to differ from Council recommendations, which is also the case as regards their implementation; resolutions are less demanding in this regard than recommendations, as they neither set any strict deadlines for implementation nor contain separate titles on implementation. In this respect, resolutions are drafted in rather non-committal terms.251 Resolutions that aim at establishing or developing a Community action 248 Eg the Council Resolution of 12 November 1996 on the integration of health protection requirements into Community policies and the Resolution of 2 December 1996 on mainstreaming equal opportunities into the European Structural Funds. 249 Cf Isaac (1998), pp 153–54. 250 Borchardt and Wellens (1989), p 302. Cf also Dewost (1987), p 329, who observes in this respect that the pure RGM resolutions limit themselves to presenting their contents in some paragraphs, whereas the mixed resolutions and Council resolutions come very close to the form of Community acts. 251 Council Resolution of 15 December 1997 on the 1998 Employment Guidelines may be considered an exception to the rule, which is probably connected with the fact that the adoption of these guidelines is in fact prescribed by Article 128 EC. The resolution states that the guidelines will have to be incorporated into national employment action plans and contains

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programme or strategy call upon the Commission to develop certain actions or proposals and invite the Member States to send the Commission the required information in order to develop this action effectively, but this is usually done in a rather general way.252 The same goes for the resolutions concerning the implementation and application of Community law. However, the situation may be different in the case of the resolutions aiming at closer cooperation as they may lay down in a rather precise way what behaviour or action is required of the Member States, without the Commission having to develop any previous action. Then, the Commission may be called upon to examine and report on the way in which the Member States have implemented or fulfilled the requirements of the resolution. Therefore, in my view, the purposes resolutions aim at are twofold. On the one hand, they may, like Council conclusions and declarations, involve a political acceptance of starting points and principles for future Community action, which to a certain extent at least have already been laid down by the Commission in the form of action programmes or are to be followed by such programmes.253 On the other hand, when it is evident what action is to be taken, resolutions are adopted specifying this action and inviting usually the Member States to take the indicated measures. Generally speaking, this does not involve the harmonisation of legislation, a term one does not come across in resolutions. At most, they speak of convergence, of establishing or improving cooperation or coordination of Member States’ action or of concerted action. Thus, the resolutions that are adopted subsequent to action programmes particularly resemble Council recommendations.254 As observed in respect of the latter, one can again argue here that the more limited purpose of resolutions — alongside their, in principle, non-binding nature — offers a possible explanation for the choice of this instrument instead of the directive or regulation.255 Very occasionally, reference is made to the subsidiarity principle and in certain cases one may consider that this principle is in fact also relevant

a number of deadlines to be met by the Commission, the Member States and the Council itself. 252 Eg

Council Resolution of 26 June 1978 setting up an action programme of the European Communities on the control and reduction of pollution caused by hydrocarbons discharged at sea. 253 Eg Council Resolution of 19 January 1999 on the Consumer Dimension of the Information Society. See also Subsection 5.2.1.3. 254 This in contrast to the view put forward by Morand (1970), p 640, who asserts that resolutions do not constitute ‘recommendations’ in that sense. 255 A good example is Council Resolution of 9 June 1997 concerning a handbook for joint customs surveillance operations, which aims to ‘strengthen practical cooperation between the customs authorities of the Member States’.

Categories and Functions of Soft Law 207 for the choice of instrument. This is most clearly expressed in Council Resolution of 15 December 1998 on a forestry strategy for the European Union, which states that even though the EC Treaty makes no provision for a specific common forestry policy and that responsibility for forestry policy lies with the Member States, it should nevertheless be taken into account that, pursuant to the principle of subsidiarity and the concept of shared responsibility, the Community can contribute positively to the implementation of sustainable forest management and the multi-functional role of forests.

Clearly, the Council is of the opinion that although both a specific Community competence and a shared competence with the Member States are lacking, there is still a need for Community action guiding the exercise of the national competences in the area concerned. In particular, the Council’s view seems to imply that even when competences remain fully with the Member States and one can only speak of ‘shared responsibility’ with the EC, the application of the subsidiarity principle may require some guidance of national action through Community soft law.256 Soft law is then used as a means to give shape to the shared responsibility, since the adoption of Community legislation is excluded in this situation. Everling also considers that informal acts are important in those areas in which the EC has only a coordination competence and may not adopt binding acts.257 Yet, unlike in the case of Council recommendations, an explanation for the choice of the resolution cannot be provided by the chosen legal basis, for the simple reason that resolutions do not generally indicate such a legal basis. Furthermore, even when the EC does have legislative competence, it does not always adopt binding measures. Again, the reasons for this may vary; perhaps no agreement on such measures can be reached in the Council, or the argument of flexibility plays a part. The possibility of (easier) adjustment may be considered for instance to result in greater progress, or soft law acts may be deemed to offer a flexible, less intrusive means of cooperation between the EC institutions and the Member States in cases where tension arises between the exercise of competences conferred on the EC and the competences retained by the Member States.258 In this regard, Morand points to the fact that the Council may see resolutions as a means to avoid taking irreversible decisions and hence retain its freedom of action in the future. A more technical reason, he suggests, may

256 Senden and Prechal (2001), p 196. 257 Everling (1987), p 420. 258 See also Everling (1987), pp 420–21.

preferred to no agreement at all.

He takes the view that an informal agreement is to be

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be that the instruments provided for by (now) Article 249 EC are not very appropriate for the type of action concerned; the contents of resolutions are too abstract to be applied directly to individuals, and they are often adopted in areas where only the adoption of directives is provided for, or where the adoption of regulations has been excluded.259 Following from the above, Council resolutions can be said to fulfil one or more of the identified functions, but it is their pre-law function that has been emphasised most in legal writing. Various authors have thus pointed to the fact that these resolutions constitute an important first step in the legislative process and in building consensus on objectives of future law and policy.260 Morand even argued that: Si l’on fait abstraction pour un instant de la question de leur force obligatoire, ces résolutions se présentent comme autant de petites chartes fondamentales, on dirait presque de constitutions, venant se greffer sur les traités constitutifs.261

Dewost stated that their impact on the development of Community action lies predominantly in the fact that their use has permitted the inclusion of new areas of Community action not expressly provided for in the Treaty; in particular, by having Member States accept, in an initial political and non-binding phase, the principle and the framework of action, to be developed subsequently by means of Community acts. He suggested that this had permitted a ‘politique des petits pas’ in politically sensitive areas for certain Member States, such as education, culture and health.262 He argued that this way of acting had produced important results as regards the establishment of new Community policies on the basis of Article 235 (now 308) EC and that very often this type of instrument paved the way for later legislative action.263 The pre-law function is indeed most evident in the resolutions that concern the establishment or proposed elaboration of action programmes. It may also be identified in respect of those Council resolutions that indicate that, on the basis of the principles or guidelines which they contain, further actions or modalities for their application have to be developed. Yet, resolutions now appear to be more diverse than in the past. Therefore, in my opinion, the above views no longer do justice to this instrument, at least not as its use manifests itself today. Thus, the para-law function is clearly apparent in those resolutions to which an annex has been attached, setting out precise rules that the 259 Morand (1970), pp 640–41. 260 Everling (1987), p 420. 261 Morand (1970), p 640. 262 Sectors in which initially

resolutions. 263 Dewost (1987), p 331.

many mixed resolutions were adopted, and later Council

Categories and Functions of Soft Law 209 addressees are called upon to apply.264 It is clear that the aim is the application and implementation of these rules as such, without it first being necessary to develop them further. Yet, Council resolutions do not state in so many words that they may have been adopted instead of legislation, nor that in the event of non-compliance legislation will be adopted. As was observed in regard of Council recommendations, the latter would in fact boil down to issuing a threat to the Member States themselves. The para-law function may also be fulfilled by resolutions drafted in another way; that is, indicating that no further Community action is envisaged for attaining the objectives aimed at. The resolution and guidelines laid down therein are deemed sufficient action in themselves.265 Nonetheless, it may appear later that such a resolution functioned only as a temporary alternative to legislation, if a legislative act is in fact eventually adopted. The post-law function is most clearly expressed by the resolutions that are linked to a legislative act, and adopted with a view to the implementation and application of the requirements laid down therein.266 The postlaw function may also be seen in a more general way in the resolutions concerning the improvement of the implementation and application of Community law in a particular area.267 Finally, it must also be noted that more than one of the said functions may often be detected in one and the same resolution.268 A significant difference from Council recommendations is that, generally speaking, Council resolutions only rarely mention a specific EC provision as a possible legal basis and only occasionally refer to the EC Treaty as such.269 In more general terms, resolutions refer to a variety of other

264 An

example is the Council Resolution of 9 June 1997 concerning a handbook for joint customs surveillance operations. The actual handbook is established by its annex. Another clear example is the Council Resolution of 15 December 1997 on the 1998 Employment Guidelines, where the actual guidelines have been appended to the resolution, and as such ‘will have to be incorporated into national employment action plans …’. 265 Eg the Council Resolution of 16 December 1997 on the early teaching of European Union languages. 266 Eg the Council Resolution of 2 April 1979 concerning Directive 74/409/EEC on the conservation of wild birds. 267 Eg the Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market. 268 Thus, one can identify both the pre-law and post-law functions in Council Resolution of 24 February 1997 on a Community strategy for waste management and in Council Resolution of 7 October 1997 on the drafting, implementation and enforcement of Community environmental law. Council Resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977 can be said to combine the pre-law and para-law functions. 269 Such an exception to the rule is the Council Resolution of 16 December 1997 on the early teaching of European Union languages, which was based on (ex) Article 126(2) first indent.

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kinds of Community acts and sometimes also to acts of other international organisations, such as the OECD, which situates them within the context of other Community or international initiatives. From this one can conclude that although Council resolutions are linked in some way to the internal market or other subjects covered by the EC Treaty, this does not necessarily mean that they are based on a specific Treaty provision or that the EC Treaty provides a specific competence for their adoption. Yet, the principle of conferred powers is in fact applied in a rather implicit way; the adopting actors make clear whether the subject actually falls (partly) within Community competence or whether it is clearly outside this competence and exclusively within that of the Member States.270 Generally speaking, no specific adoption procedure is followed and most resolutions do not contain any indication as to the way in which they were adopted. Only occasionally is attention given to this particular aspect and for instance the involvement of outside parties provided for, such as in the Council Resolution on the 1998 Employment Guidelines which affirms the involvement of the social partners. Resolutions laying down a Community action programme appear to have been adopted following a draft or a proposal of the Commission and after the EP and the ESC have given their opinion on it. This is most often expressed at the beginning of the preamble of the resolution. Nonetheless, as Morand noted, the adoption process of resolutions containing a legislative programme may vary from one case to another, and sometimes the Council adopts them without the consultation of other Community institutions. Interestingly, the legal commission of the European Parliament complained about this practice at an early stage and proposed that the adoption of resolutions take place according to decision-making procedures that apply to formal Community instruments. The right of initiative of the Commission should be ensured, the European Parliament consulted and all resolutions published. At the same time, this legal commission expressed the fear that the practice of adopting resolutions could lead to the situation that the adoption of regulations and directives would become a mere formality, the substantive issues having been settled already in the programme laid down in the resolution.271 In contrast to Council recommendations, Council resolutions are published in the C-series of the Official Journal. Very rarely, has a resolution

Another is the Council Resolution of 25 June 1996 on industrial cooperation with other regions and third countries, inter alia in the Mediterranean, which refers to (ex) Article 130 EC. (Ex) Article 235 has also been cited as a legal basis, for instance in the Council resolution concerning the framework research, development and demonstration programme. 270 See also Subsections 5.5.1 271 Morand (1970), p 642.

above, 5.5.7 below and 7.3.2.2.

Categories and Functions of Soft Law 211 been published in the L-series. This has occurred when, for instance, the resolution adopted was very closely linked to a legislative act that was adopted and published at the same time.272 Although it seems to be the general rule that resolutions are published, it also occurs that they are not.273 Notification in any other way does not appear to take place. As already seen in respect of Council conclusions and declarations, the Council’s Rules of Procedure stipulate in this respect that their publication has to be decided upon on a case-by-case basis and are silent as regards their notification.274 Whenever a resolution is (indirectly) addressed to other parties besides the Commission and the Member States, it appears to be more the responsibility of the Member State to bring this to their attention. 5.5.6

Council and Commission Codes of Conduct or Practice

Both the Commission and the Council adopt codes of conduct or practice. Given the relatively low number of codes adopted by the Commission, I will not discuss these under a separate heading. It is further important to observe at this point that quite often codes of conduct or practice are adopted under the heading of other (often soft law) instruments, such as (Council or mixed) resolutions, (Commission) communications, recommendations and sometimes regulations. More in particular, it will appear that the form or instrument by which a code of conduct is adopted is relevant from the point of view of its (intended) legal nature. Their very designation already implies that codes of conduct aim at laying down rules of conduct, which are naturally intended to influence the behaviour of their addressees. This also becomes clear from the use of terms such as the establishment of ‘principles’, ‘criteria’, ‘standards’ and ‘recommendations’, to be adopted or applied by the addressees. As such, they are of a normative nature. In reply to a question of the European Parliament, the Council thus held that The Code of Conduct on arms exports was adopted on 8 June 1998 with a view to setting high common standards which should be regarded as the minimum for the management of, and restraint in, conventional arms transfers by all Member States, and to strengthen the exchange of relevant information with a view to achieving greater transparency within the Union.275

272 An example is the Council Resolution of 15 December 1975 on the Convention for the European Patent for the Common Market, OJ 1976, L 17/43. 273 Cf also Morand (1970) and the Burger Report of the EP, p 21, Document de séance, no. 215/69, of 12 March 1969. 274 OJ 2002, L 230/7, Articles 17 and 18. 275 Joint answer to written questions E–3301–7/98, OJ 1999, C 182/62.

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This is clearly an example of a code of an external nature, containing rules of conduct that are meant to be of general application, ie to be applied by and to guide the behaviour of the Member States or other outside parties. Furthermore, as the title of the EEC Code of Conduct for companies operating in South Africa illustrates, these other parties may be companies or industries, which are obviously the real addressees of the code. Yet, it is the Member States that have to persuade these companies to comply with and file implementation reports on the code of conduct. Codes of conduct may also be of an internal nature, as is illustrated by the Code of Conduct concerning public access to Council and Commission documents, establishing the general principle that ‘The public will have the widest possible access to documents held by the Commission and the Council’. This constitutes the establishment of a rule to be applied by and guiding the behaviour of the Community institutions adopting the code of conduct. By their very nature, the internal codes of conduct thus relate to issues of a rather procedural or institutional nature.276 Nonetheless, it is also clear that such codes may have certain external effects; although in the case of the aforementioned Code rules are established regarding the way in which the Council and the Commission will deal with requests for access to its documents, the application thereof will obviously affect third parties (the applicants).277 Sometimes, codes of conduct indicate in so many words that they do not have legally binding force. Clearly, the absence of legally binding force has to be taken as a starting point for both Commission and Council codes of conduct. At the same time, however, it is also clear that the aim is that they should be implemented. This is expressed, for instance, in the Resolution of 22 April 1999 on a Code of Conduct for improved cooperation between authorities of the Member States concerning the combating of transnational social security benefit and contribution fraud and undeclared work … , by stating, on the one hand, that it is a non-binding code, representing a political commitment and therefore not affecting the rights and obligations of the Member States and of the EC. On the other hand, however, it invites the Member States to observe the Code of Conduct, in accordance with national law and practice. The wording is often of a permissive rather than compelling nature. It seems that deadlines for implementation are only rarely mentioned in codes of conduct,278 but the

276 As such, they can be said to be similar to inter-institutional agreements; cf Subsection 5.5.4 above. 277 See also Section 6.6. 278 Yet, the Code of Conduct concerning public access to Council and Commission documents states that the Commission and Council will take steps to implement it before 1 January 1994.

Categories and Functions of Soft Law 213 Member States may be called upon to inform the Commission on the measures taken to implement the codes, and the Commission may issue reports on their implementation and application.279 It also appears that both the Commission and the Council deem implementation of the codes to be primarily an affair of the Member States. Answers given to written questions of the European Parliament make this clear. The monitoring role that the Commission has in this respect may in fact depend greatly on the views of the Council and/or the Member States. The Commission has for example replied to a question relating to the Council Code of conduct on arms control that the code of conduct is not an instrument of Community policy and cannot therefore, under the rules of the Treaty, be enforced by the Commission. Each Member State is accordingly responsible for interpreting the criteria listed in the code and assessing how they apply to its arms sales.280

The Council also held that the implementation of the Code, ‘remain[s] the responsibility of the Member States and of their national licensing authorities’.281 In respect of the Code of Conduct for companies operating in South Africa, the Commission has stated that compliance with its provisions is voluntary and that therefore no action is taken by Member States against those companies which have not yet achieved the recommended norms.282 Delors has held that its implementation falls within the sphere of competence of the Member States.283 The Foreign Ministers of the Member States of the European Community meeting in political cooperation also considered that the existing arrangements were working satisfactorily and that there were no immediate plans to enhance the role of the Commission in monitoring the implementation of this Code.284 The foregoing shows that the code of conduct, if adopted solely under that designation, is considered to involve more a political engagement than a legally binding one. In fact, one can say that the intended legal nature depends upon the heading under which the code of conduct is adopted. If the aim is to establish a code of conduct of a mandatory 279 Eg

the aforementioned Resolution on a Code of Conduct for improved cooperation [… ]. See also the first annual report published on the implementation of the Code of Conduct for business taxation and fiscal state aid, laid down in a Communication from the Commission to the Council and the European Parliament: COM(1998)595. And on 20 November 1984, the Ministers of Foreign Affairs approved the Fourth Community Analysis of the reports of the Member States on the implementation of the Code of Conduct for companies operating in South Africa in the period from July 1981 to June 1983. See the answer to written question 1148/84, OJ 1985, C 26/35. 280 Answer to written question E–2867/98, OJ 1999, C 135/131. 281 Ibid note 275. 282 See also the answer to written question 1147/84, OJ 1985, C 71/29. 283 Answer to written question 2319/85, OJ 1986, C 137/20. 284 Question 3064/85, OJ 1986, C 202/11.

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nature, it may be adopted by way of a regulation or directive.285 When the code of conduct is being prepared, a decision may not yet have been taken with respect to its legal nature.286 The codes give some indications as to the reasons behind the choice of this particular instrument, but these are not really spelt out. The nonbinding nature itself may constitute one such reason, and hand in hand with this goes the idea that there is no need, desire or support for legislation. This appears to be the case as regards the aforementioned Code of Conduct for improved cooperation … . It may also be that there is no legal basis for a binding commitment, although no explicit references are made to this aspect. However, such a reason can be inferred (again) from answers the Council has given to questions of the European Parliament. Thus, in response to the parliamentary question on when the EP could expect a proposal from the Council on a Code of Conduct for European companies operating in third countries, obliging them to respect human rights in all their forms, the Council reminded that there is no provision in the Treaties for the Council to submit a proposal to the European Parliament for a Code of Conduct imposing obligations on European companies in third countries.287

As regards the functions underlying codes of conduct, it can be observed that those of an external and general nature are often intended to function as an (at least temporary) alternative to legislation. As such, they can be regarded as fulfilling the para-law function. That is not to say that the goals aimed at are the same as those of legislation. Generally speaking, in fact, it appears that Council codes of conduct aim at establishing common starting points or principles for action which are directed more towards establishing closer cooperation or coordination of national policy than at realising harmonisation of legislation.288 As regards Commission codes of conduct, examples of both less and more far-reaching ones can be found. The Commission Recommendation of 8 December 1987 on a Code of Conduct relating to electronic payment can be cited as an example of a Commission code that does in fact aim at establishing harmonisation.289 The Communication from the Commission 285 Cf

the Council Regulation (EEC) No. 2299/89 of 24 July 1989 on a code of conduct for computerized reservation systems, OJ 1989, L 220/1. 286 See, for instance, the open call for tender for a study on the definition of a code of conduct for service providers, OJ 1995, C 63/11. 287 Answer to written question E–3376/97, OJ 1998, C 158/94. 288 Eg the Resolution of 22 April 1999 on a Code of Conduct for improved cooperation […]. See Subsection 5.4.3.2 above for the distinction between cooperation/coordination and harmonisation. 289 Discussed already in Subsection 5.4.3. The same is true of the other Commission codes of conduct adopted under the heading of recommendation which are also discussed there.

Categories and Functions of Soft Law 215 of 17 July 1996 ‘A code of practice on the implementation of equal pay for work of equal value for women and men’, on the other hand, provides an example of a Commission code which seems more limited in scope. The last example also shows that Commission codes may be directed towards the realisation or facilitation of the practical application of a principle already contained in the Treaty and/or secondary legislation. As such, it can be considered to fulfil the post-law function and to resemble in fact interpretative communications, discussed in Subsection 5.3.2. The fact that this code was adopted under the label of a communication seems also to point in this direction. Codes of a general and external nature may also be considered to fulfil the pre-law function. Thus, in a resolution on the EEC Code of Conduct for companies operating in South Africa, the European Parliament held that it was convinced that the decision of the Foreign Ministers in 1976 to create a Code of Conduct must be considered as the first step towards Community measures against the policy of apartheid.290

Codes of conduct of an internal nature may also fulfil these different functions, which indeed can all be seen in one single code.291 Codes of conduct do not mention a legal basis. They may merely refer to certain Treaty articles, secondary legislation or other Community (soft) law acts, to which the contents of the code of conduct relates in some way. It is not easy to give numbers of the codes of conduct that are being adopted. What is clear, however, is that the code of conduct is an instrument which is less frequently used than the recommendation, and that its adoption occurs in a more limited number of areas; in addition to the ones mentioned earlier, relating, for instance, also to doping in sport. As regards the adoption process, it appears that the Council sometimes expects the Commission to put forward a proposal for such a code. Furthermore, the European Parliament may also invite the Council to adopt a code of conduct, which was the case, for instance, as regards the Code of conduct for European enterprises operating in developing countries. In other cases, some Member States took the initiative. For instance, the Council on the initiative of the UK and French governments adopted the Code of Conduct on arms exports.292 Regarding the involvement of other parties in the actual drafting and adoption process

290 OJ 1986, C 68/131 291 See eg the Code

(point H). of conduct concerning public access to Council and Commission

documents. inter alia the Resolution of the EP on a code of conduct for arms exports, OJ 1998, C 167/226, point A. 292 See

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of codes of conduct, it is also difficult to make general observations. It is clear, however, that the European Parliament is not always consulted, as it complained for instance about not being consulted on the amended Code of Conduct for companies in South Africa.293 In other cases, the Commission has made an open call for tender for a study with a view to the preparation of a code of conduct, thereby recognising the usefulness of drafting codes in collaboration with those who have to apply them. This occurred for instance concerning the definition of a code of conduct for service providers.294 It is not clear whether codes of conduct are always published.295 If published, Council codes of conduct are generally published in the C-series of the Official Journal. The Commission codes of conduct that have been laid down in a recommendation have been published in the L-series. The Commission codes adopted under the heading of ‘communication’ seem to have been published only as COM-documents. Furthermore, it has not been possible to detect any general approach as to the notification of either Council or Commission codes, but some indications in this regard can be found in the codes themselves or in answers given to questions of the European Parliament.296

5.5.7

Mixed Conclusions, Declarations and Resolutions

Much of what has been observed above in respect of Council conclusions, declarations and resolutions also applies to the mixed conclusions, declarations and resolutions. They are very similar as regards the kind of rules established therein, their legal nature, addressees, functions, adoption process and publication. The main differences that can be observed relate to the issue of legal basis or competence. Mixed conclusions do not mention a legal basis and, until the mid1990s, were adopted particularly in the areas of education, health, youth and culture. At around that time the number of Council conclusions in these areas increased significantly, apparently as a result of the entry into force of the TEU on 1 November 1993, which entailed legal bases in the EC Treaty for the adoption of Community measures in those particular areas. As observed above, these legal bases are actually mentioned in a 293 See OJ 1986, C 68/131, point 1. 294 Cf also written question E–104/96, OJ 1996, C 173/23. 295 It can be observed here again that the Council’s Rules

of Procedure do not entail an obligation of publication or notification of these acts; see their Articles 17 and 18. The Commission’s Rules of Procedure provide only for notification of such acts to the other EC institutions; see their Article 17. OJ 2000, L 308/26. 296 See eg the Code of Practice on the implementation of the principle of equal pay and questions regarding the Code of Conduct against Doping in Sport.

Categories and Functions of Soft Law 217 number of Council conclusions. It is indeed only when a subject matter falls within the scope of the Treaty that Council conclusions are adopted. In areas where the competence of the Community is virtually non-existent or very limited, as has long been the case for the above-mentioned areas, mixed or RGM conclusions have been adopted. This manner of proceeding indicates that the principle of conferred powers is actually applied to the adoption of other Community instruments besides those mentioned in Article 249 EC, even if they are considered to entail only a political and not a legal commitment or agreement.297 It is difficult to give numbers of mixed conclusions, as not all of them are published, but their relevance and numbers have indeed declined because of the extension of Community competences and the increased number of Council conclusions. It is also clear that mixed conclusions are adopted to a lesser extent pursuant to Commission initiative than Council conclusions. Mixed conclusions also seem to follow no specific adoption procedure, although they are more likely to be adopted by unanimity because they constitute, in part at least, an intergovernmental act. Mixed declarations equally do neither indicate a legal basis nor explain why a mixed declaration was chosen instead of a Council declaration. Although mixed declarations themselves do not as such acknowledge that they are adopted in cases where there is only a limited competence for the EC to act, this can sometimes be inferred from their wording. The ‘mixed competence’ is thus clearly evident in the Declaration by the Council (ECOFIN) and the Ministers meeting in that Council issued on 1 May 1998, which stated that: The Council reiterates that the responsibility for budgetary consolidation lies and remains with the Member States and that, in accordance with the provisions of Article 104b(1) TEC, the Community in particular shall not be liable or assume the commitments of Member States.

It was thus recognised that the matter lay partly within the Council’s competence, but that this was not the case for the specific matter of budgetary consolidation. Furthermore, mixed declarations have been adopted in a rather limited number of areas, such as racism and xenophobia, the elderly, drugs and sports; areas indeed in which the Community competences are fairly limited. The adoption of mixed interpretative declarations is less likely, because such declarations are linked to other Community (legislative) acts and are mostly of importance for achieving consensus in the Community decision-making process. Mixed declarations are in fact adopted outside this process. If published, which is not always the case, mixed declarations are mainly published in the C-series 297 See

further on this Subsection 7.3.2.2.

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of the Official Journal and only occasionally in the L-series. The reason for publication in the L-series, when it occurs, is not very clear. Mixed resolutions do not indicate a specific legal basis in the EC Treaty either. Sometimes, they merely state ‘Having regard to the Treaty establishing the European Community’, thereby indicating some link with the topics covered by the Treaty. As seen in Subsection 5.5.1, the view has often been put forward that the (partial) lack of a legal basis has been one or the main reasons to resort to the adoption of mixed resolutions. Indeed, it was only after the introduction of specific legal bases in the Treaty for the adoption of Community measures in the fields of health, education and culture that the Council proceeded to adopt ‘pure’ Council resolutions instead of mixed resolutions. Some resolutions also underline that when the Commission takes the action requested by the Council and the Member States in the resolution, it has to do so within the framework of Community competences. This is done for instance in the Resolution of 17 February 1997 on illegal and harmful content on the Internet. In view of the areas in which mixed resolutions were adopted before and after the ratification of the TEU, it seems that the relevance of this type of resolution has decreased since the competences of the Community have increased in the areas concerned (health, culture, education). The decrease in the number of adopted mixed resolutions fits in with this conclusion. However, in my view this does not necessarily also mean that the relevance and use of the instrument of the resolution as such has declined. On the contrary, it can be seen that since 1993–1994 the number of resolutions adopted solely by the Council has increased considerably. Thirty resolutions a year is no longer exceptional. So, it seems that Council resolutions have taken the place of mixed resolutions, although it must be noted that several of them were adopted under the third pillar. Before 1992, mixed resolutions that were adopted concerned in particular the financial interests of the Community, education, culture, health, youth, transport and safety, natural or technological disaster, combat of drugs and abuse of medicinal products also in sports, civil protection, racism and xenophobia, employment, social exclusion, data processing, equal opportunities, environment and the free movement of persons. Since 1992, mixed resolutions have been adopted concerning notably the Internet, equal opportunities for disabled people and for men and women, the role of social protection systems in the fight against unemployment, combat of racism and xenophobia, civil protection, young drivers, public health, environment, arts and doping in sports. Mixed resolutions are published in the C-series of the Official Journal. It remains unclear, however, whether all of them are published, although at least within the last decade many have indeed been published. Furthermore, some resolutions provide for their notification to the European Parliament and the Economic and Social Committee.

Categories and Functions of Soft Law 219 5.6

5.6.1

CONCLUSIONS

Do the Instruments Examined Indeed Constitute Soft Law?

Having discussed, in this chapter, a number of frequently used Community law instruments that are usually considered to constitute soft law, I will start by drawing some conclusions as to the extent to which this can actually be said to hold true. In Chapter 4, soft law was defined as: Rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed at and may produce practical effects.

Looking first at the category of preparatory and informative instruments, it has emerged that Green Papers, White Papers and action programmes are instruments that are adopted with a view to the elaboration of new Community law and policy. One can say that they form important points of departure for the actual lawmaking process. They have therefore been designated as preparatory instruments, fulfilling a pre-law function. Their respective degrees of concreteness vary, the Green Papers being the least concrete, as mere consultation or discussion documents; the action programmes being the most concrete, containing proposals for legislation or any other action to be developed within a certain time space; and the White Papers located somewhere in-between. Furthermore, it has been established that some inter-institutional communications may also fit in here, as they aim at stimulating the inter-institutional dialogue, partly with a view to the further development of Community law. Individual communications also in a sense concern the lawmaking process, but, as the denomination itself indicates, not in the general way of the above instruments. These latter communications, as well as the purely informative ones, have an important informative function, in their intention to inform the public on (the application of) Community law and policy, and in some instances also to invite them to respond. It appears that although the preparatory and informative instruments discussed are of an external nature, apart from the inter-institutional communications and to some extent the action programmes, none of these instruments lays down rules of conduct, at least not of a general, normative nature. Green Papers, White Papers and action programmes aim only at the development or preparation of such rules of conduct. Since interinstitutional communications aim only at informing other institutions of certain developments and at the joint elaboration of future action, and thereby also at the elaboration of new rules of conduct, these cannot be considered to constitute such rules of conduct themselves either. Purely informative communications are of an even less ambitious nature, since

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they are confined to informing the public on Community action. And obviously, individual communications concern the (proposed) application of Community law to concrete cases, that is the application of already existing rules of conduct to a particular case and not the establishment of new ones. In brief, the instruments discussed put the emphasis either on the preparation or future elaboration of rules of conduct or on providing information on the application or functioning of already existing and binding rules of conduct. In view of this, these instruments will already founder on the first element of the above definition, by not prescribing certain behaviour for their addressees. The matter seems to be slightly different as regards those White Papers that actually lay down action or work programmes and the action programmes themselves, having remained a Commission document or being adopted only by a resolution of the Council and/or of the Member States (meeting in Council). These can in fact be considered to be soft law instruments, in so far as they aim at setting out future lines of conduct and expressing the commitment to develop certain action, and this not only for the Commission but also for outside parties such as the Member States or industry. Next, the category of interpretative and decisional instruments has been identified. These instruments are taken together under the concept of administrative rules and cover rules drawn up with a view to explaining how EC law should be interpreted and rules indicating how a Community institution with implementing and discretionary powers, in particular the Commission, will use these powers in individual cases. It appears that the instruments in which interpretative and decisional rules are laid down fulfil the definition of soft law without problem, although their possible indirect legal effects remain to be examined in Part III. Thus, it has become clear that administrative rules are rules of a normative nature, prescribing how to act in conformity with Community law and hence aimed at influencing the behaviour of those concerned. Furthermore, it is also a fact that they are not provided for in the EC Treaty, let alone that they have legally binding force on the basis of this Treaty. With respect to the category of formal steering instruments, it has been established that recommendations — whether adopted by the Council or the Commission — aim at laying down general rules of conduct and at influencing the behaviour of notably outside parties. Thus, they have been said to be of both a normative and an external nature. In particular, it has appeared that the recommendation is a rather more far-reaching instrument than the interpretative and decisional instruments. That is, the intention is not to restate or make explicit the interpretation that has to be given to the already existing binding primary and secondary law, or the way a discretionary power will be exercised in a certain case. Clearly,

Categories and Functions of Soft Law 221 the aim is to lay down new rules, which are not necessarily linked to existing legislation or Treaty provisions and cannot be said to be inherent to the existing legal framework, or at least are not limited to this. Bearing in mind what has been established concerning their legal nature and implementation, it has also become clear that they may in fact intend to have not only practical but also legal effects, although being denied legally binding force as such by Article 249 EC. The recommendation thus displays the main elements of the concept of soft law. Opinions too, lay down rules of conduct, which may be of an external or internal nature, aim at having practical effect and may entail certain legal effects, without having legally binding force on the basis of the EC Treaty. As such, they can also be considered to be soft law acts. The non-formal steering instruments that have been discussed can be said to all fall within the concept of soft law as well. That is to say, at least to a certain extent they lay down rules of conduct, without as such having been attributed legally binding force but aiming at having some practical effect. Yet, as regards the first, normative aspect, it has also appeared that a distinction can actually be made between two different types of nonformal steering instruments. The first type of instruments, including in particular conclusions and declarations, are of a less concrete normative nature than the second type, encompassing in particular resolutions and codes of conduct or practice. In contrast to the latter, conclusions and declarations have thus appeared to be primarily declaratory of certain general principles, indicating the basis on and direction in which further action should be developed, without themselves establishing (very) concrete rules of conduct yet.

5.6.2

Alternatives to Legislation?

Further conclusions can now also be drawn as to the potential of the different instruments discussed in this chapter to function as alternatives to legislation.298 Regarding the preparatory and informative instruments, it can be concluded that none of them aim in fact at functioning as an alternative to legislation. Moreover, as most instruments have been found not to qualify as soft law at all, for lacking a general, normative nature, they are not in fact able to function as such an alternative. Thus, as Green Papers and White Papers form part of the process of elaboration of Community action, they cannot function as a substitute for Community action and/or legislation as such. Nonetheless, the consultation process that takes place

298 See

Section 4.5 on the requirements for functioning as an alternative to legislation.

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pursuant to the adoption of these instruments may reveal that there is no need or desire for Community action or legislation and/or that recourse should be had to instruments other than Community legislation. So, in that sense, Green Papers and White Papers may very well contribute to the choice of alternative means of regulation instead of legislation, and as such have consequences for the magnitude and nature of Community action. Since none of the different types of informative communications lays down general rules of conduct, these too cannot function as an alternative to legislation. As regards those White Papers establishing action or work programmes and action programmes themselves, the same conclusion can be drawn. In so far as they lay down rules of conduct, these concern specifically the commitment to develop certain initiatives in the period to come and as such are not of a general, substantive nature; these initiatives are yet to be developed on the basis of this commitment. So, in themselves they do not aim at functioning as an alternative to legislation, nor indeed would they be able to do so.299 Interpretative and decisional instruments have been found to establish general rules of conduct with external effect, although the latter also have internal effect. From this perspective, then, they might indeed function as an alternative to and be adopted instead of legislation. However, it has also been shown that these instruments fulfil the post-law function, meaning that they are only adopted subsequent to certain Treaty or secondary law provisions and with the aim of completing these. Since they are adopted with a view to the interpretation and application of the existing body of primary and secondary Community law, they do not, in principle, aim at laying down or creating new legal rules. So, interpretative and decisional instruments are not intended, at least in theory, to function as an alternative to legislation. The discussion in this chapter has also made clear that opinions cannot be considered to fulfil the elements necessary to function as an alternative to legislation. In particular, it has been seen that opinions do not lay down general rules of conduct, but merely present the viewpoint of an institution, most often the Commission, on a particular matter or individual case. These opinions concern either the establishment of new Community law rules or the correct application of and compliance with Community law. To the extent that the viewpoints given by the Commission in the latter type of opinions could actually be regarded as guidelines for the lawful conduct of Member States, they are not of general applicability. Furthermore, the former, ‘decision-making opinions’ are of an internal

299 This

is also evident from the fact that most of the action programmes that have been formally adopted were established in decisions; these are only binding on those to whom they have been explicitly addressed. See Subsection 2.4.2.

Categories and Functions of Soft Law 223 nature. As such, opinions have been said to fulfil the pre-law and post-law functions, but not the para-law function. That is to say, opinions are not used instead of legislation, nor indeed are they capable of functioning as an alternative to legislation, given their nature and purposes. The situation is fundamentally different as regards recommendations. It has been concluded that most Commission and Council recommendations are of a normative, general and external nature, and thus display all the elements required to possibly function as an alternative to legislation. Furthermore, it has also been established that they may fulfil the para-law function and so are intended, to a certain extent at least, to function as such an alternative. Yet, it has also been observed that this does not mean they necessarily pursue the same objectives as legislation, ie the harmonisation or unification thereof.300 A distinction has been made in particular between the notions of coordination and harmonisation; recommendations which are confined to the establishment of closer cooperation between the Member States or the coordination of national policy and objectives, do not aim at either one of the above objectives. This seems largely to be the case with Council recommendations, which in a number of cases are clearly used within the framework of applying the open method of coordination. Only when recommendations seek to establish harmonisation of national rules are they used with a view to realising the same objectives as legislation. The Council has made this latter use of recommendations mainly in the area of telecommunications, whereas the Commission has been seen to use them in this way far more often. In view of the ‘independent’ nature of the Commission, and the fact that the Council is the institution in which the governments of the Member States are represented, the more reticent approach of the Council is quite understandable. Next, the distinction which has been made between the two different types of non-formal steering instruments is also of importance with a view to the assessment of whether non-formal steering instruments can function as an alternative to legislation. Although it has been seen that another act, such as a code of conduct, may ‘hide’ behind in particular declarations and resolutions, it may nonetheless be upheld that conclusions and declarations normally pursue a less far-reaching aim than resolutions and codes of conduct. One could say in fact that Council conclusions and declarations guide or steer future Community action, by marking the political acceptance of the starting points for this action. Furthermore, it appears that conclusions and declarations are regularly adopted pursuant to preparatory acts of the Commission, such as Green and White Papers. As such, their adoption can be viewed as the political

300 See

also Subsection 2.4.1.2.

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continuation of the preparatory action undertaken by the Commission. In line with this, it can also be observed that they are of a mainly internal nature, in the sense that they merely provide a basis for the future elaboration of external rules. Thus, leaving aside the exceptions, they normally do not themselves aim at laying down general rules of conduct, to be applied immediately by outside parties such as the Member States. In view of this, conclusions and declarations have been considered to fulfil above all the pre-law function. The findings as regards the other type of non-formal steering instruments, in particular resolutions and codes of conduct, show that these guide and steer action in a more far-reaching way, by laying down concrete and general rules of conduct that are to be implemented and applied directly by their addressees, in particular the Member States. As such, they aim foremost at the establishment of closer cooperation or a concerted approach of the Member States in respect of a certain matter. Consequently, these instruments may not only fulfil the requirements for functioning as an alternative to legislation, but may also aim at indeed functioning as such an alternative. Again, this is not to say that resolutions and codes of conduct pursue the same objective as legislation. Not surprisingly, they have thus been found to fulfil the para-law function, although in certain cases the pre-law and post-law functions can also be identified.

5.6.3

Possible Contributions to the Effectiveness, Legitimacy and Transparency of Community Action

The fact that most of the preparatory and informative instruments identified in this chapter do not fit in with the definition given to soft law, and that they neither are nor could be used as alternatives to legislation, does not mean that they are of no significance for the legitimacy, effectiveness and transparency of Community law and policy. The consultation process conducted on the basis of Green and White Papers may thus contribute to making EC action more legitimate, by creating more opportunity for direct participation of those concerned in the legislative process. The consultation process may also have a positive influence on the effectiveness of Community action, since it may enhance public support for the law and policy developed pursuant to this process, and hence also their implementation. However, the success of this process depends on a number of factors, such as people’s awareness of the possibility of involvement, which is connected with the issue of publication and notification of these instruments. Given that they are published only as COM documents and that there has proven to be no (uniform) approach as to notification of Green Papers and White Papers,

Categories and Functions of Soft Law 225 one may wonder whether this is sufficient.301 Another question is what the actual response to these Papers is and how representative this response can be considered to be, in terms of both quantity and quality. Even more important is the question of how the Commission takes account of the outcome of this consultation process in its proposals. So, as regards their actual contribution to the legitimacy and effectiveness of Community action, much depends on the modalities of use of these instruments. In the present situation, I would say that these are not sufficient.302 Inter-institutional communications may also contribute to enhancing the legitimacy of Community action, as they contribute to involving the other Community institutions, in particular the Council and the European Parliament, in the lawmaking process at a very early stage. As a result, the democratic basis of the eventual Community action may become broader. The practice of adopting action programmes can also be said to make Community action more legitimate and transparent, by giving information about what policy will be conducted for a certain period of time and what action may or may not be expected from the Community. Consequently, they can also be said to make the institutions more accountable for the policy effectively developed in this period of time. Informative communications too, especially the purely informative ones, contribute to this aim, by keeping the public informed of Community activities and developments. However, once again, a lot depends on whether this information does in fact reach the public. This seems far more guaranteed as regards action programmes, given their often formal adoption, than as regards these communications, which are only published as COM documents. A number of arguments plead for a positive approach to the use of interpretative and decisional instruments in EC law.303 From a national law perspective, there is little to argue against interpretative and decisional instruments, since they are commonly used in many Member States. From the Community law perspective, it has been seen that this use already has a considerable tradition and that few objections have been raised to it. As such, the increasing recourse to interpretative and

301 A question that arises in this respect is whether Green Papers and White Papers should not be published in the same way as individual communications, given their similar aim. The difference is that the decisions taken by the Commission in respect of the application of Community law in a concrete case will affect the position of other parties or undertakings, whereas this is less the case as regards Green Papers and White Papers, which do not have any immediate consequences. 302 In Subsection 7.3.3, this issue will be considered in more detail within the framework of the discussion as to whether there is not only a competence but possibly also a duty to adopt such consultation acts. 303 As set out in Senden (2001), pp 30–32.

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decisional instruments can be taken as an indication that the EC is becoming a mature administration or legal order.304 Also from the point of view of the specific characteristics of the Community legislative process and the implications thereof for the Member States, there is much that pleads for the use of interpretative and decisional instruments. To begin with, the high compromise nature of Community legislation means that there is often agreement merely on its wording, not on its meaning and scope. This also explains the absence of explanatory statements to accompany the adoption of legislation, which obviously leads to obscurities and increases the desire or even necessity for explanation and clarification. Secondly, the aim of more framework legislation and less detailed legislation also increases the need for some explanation. Indeed, as such, interpretative and decisional instruments not only give the national legislature and other authorities useful guidance when having to transpose or apply Community legislation, but may also enhance the legal certainty of economic operators, consumers and the like by clarifying the rights and obligations that Community law entails. This clarification is often welcomed by those concerned, and sometimes even requested. In general, their use may thus help to increase uniformity as regards the transposition, application and enforcement of Community law and thereby contribute to the uniform application and effet utile of Community law in the Member States. Furthermore, interpretative and decisional instruments can also have an important preventive effect, in the sense that as long as they are complied with, a procedure for failure to comply with Community law will normally not be brought by the Commission. In fact, these instruments enable the Commission to act not only ‘re-actively’ (when the harm has already been done) and in individual instances, but also ‘pro-actively’ and to prevent breaches of Community law in a more general way.305 The consultation procedure followed by the Commission in the adoption of decisional instruments may also fit in with the aim of increasing the legitimacy of Community action. In this respect, however, the question is whether this procedure is sufficient and in particular whether it provides democratic guarantees equal to those of the regular decisionmaking process, in which the input of the EP is ensured. In the light of the foregoing considerations, there seems to be little against the use of interpretative and decisional instruments, and from the point of view of effectiveness and transparency it could even be applauded. Yet, a number of arguments also plead for a more cautious

304 Cf Senden and Prechal (2001), p 198. 305 See also Subsection 10.3.4 on this.

Categories and Functions of Soft Law 227 and reserved approach. A first point is that the interpretative and decisional acts adopted by the Commission do not say from where it derives the competence to do this. Apparently, the Commission deems that it does not need to establish this competence or that it possesses competence in this respect anyhow and that identification of a legal basis is not required. From the standpoint of the legitimacy of Community action, this lack of clarity is to be deplored and it leaves unanswered the question as to the applicability of the principle of conferred powers, in particular in its functions of principle of legality and internal division of competences. Secondly, for several reasons the gains in terms of legal certainty, transparency and effectiveness must be seen in their proper perspective. To begin with, the same quality problems that exist in respect of Community legislation can arise in respect of interpretative and decisional instruments. That is to say, the interpretative and decisional rules can in fact give rise to new interpretation questions, delimitation problems vis-a-vis legislation and vis-a-vis one another,306 problems concerning the consistency of terminology etc, while it appears that the effort to improve the quality of drafting is limited to (binding) Community legislation.307 In this respect, the effectiveness and transparency of Community action in the sense of its being accessible and understandable may actually be (further) complicated. Furthermore, the legal status of interpretative and decisional instruments, and in particular their lack of (inherent) legally binding force,308 means that complying with them does not provide an absolute guarantee of acting in conformity with EC law. The Community courts can always decide that Community law has to be interpreted and applied in a way other than that put forward by the Commission. Whether the goal of achieving greater consistency and uniformity in the application of Community law in the Member States is realised in practice, moreover, depends on the acts being applied by those concerned, and on the obligations that may exist in this respect.309 At this point, however, it is still rather unclear what other possible — indirect — legal effects these 306 The

concurrent application of frameworks in the area of state aid can thus raise questions. Eg Hancher et al (1999), pp 334 and 348. is suggested by not only the title but also the content of the Inter-institutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation, OJ 1999, C 73. It stipulates inter alia that the guidelines ‘are intended as a guide for the Community institutions when they adopt legislative acts’ and that:

307 Which

The drafting of Community acts shall be appropriate to the type of act concerned and, in particular, to whether or not it is binding (Regulation, Directive, Decision, recommendation or other act) without any further indication as to what this implies for the drafting of non-binding acts. 6 for an explanation of this notion. Prechal (2001), p 198.

308 See Chapter 30 9 Senden and

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instruments may have and thus for instance when one can be considered to be bound by them.310 The realisation of greater consistency and uniform application of Community law also depends on the way in which the adopting institution makes use of interpretative and decisional instruments. Practice has revealed in this respect that at times the Commission certainly skates on thin ice, using them in a decidedly questionable way. Firstly, it has been seen that the Commission’s interpretation may differ from, or go further than, the interpretation given by the Court of Justice. Secondly, a danger appears to lie in the fact that the Commission may try to impose new legal obligations under the heading of ‘interpretative’, while these are not necessarily contained in the underlying Community law provision(s) and/or the Court’s case law. This may lead to confusion rather than to legal certainty and uniform application of Community law, thus undermining the contribution to transparency and effectiveness that these instruments are supposed to realise.311 In addition, the latter practice also touches upon the legitimacy of Community action, in the sense of affecting the internal division of powers. For it may be doubtful whether the Commission is actually entitled to impose such obligations, instead of the Council (in conjunction with the EP or not). This issue arises in particular where it appears that the Commission act was first cast in the form of a directive proposal. In other instances, the choice of interpretative and decisional instruments may seem at first sight more straightforward and understandable, yet questions arise again here. In the Communication on the public consultation on the draft Notice on the application of the competition rules to the postal sector the Commission thus explained its choice of the instrument of the notice instead of legislation by holding that it would not have been appropriate to write Articles into the proposal for a Directive that merely re-stated the existing law.

Clearly, the Commission started here from the viewpoint that the interpretation and application of the competition rules in the postal sector is in fact contained in the Treaty or secondary law. Why then has it chosen to adopt regulations in respect of the application of these rules to other areas?312 True legal certainty, entailing the predictability and foreseeability of Community measures, thus seems to require the adoption of legislation in certain cases.313 310 See Part III on this issue. 311 Senden and Prechal (2001), p 198. 312 Thus, Regulation 1017/68/EEC applies

the competition rules to rail, road and inland waterway transport, OJ 1968, L 175/1; and Regulation 3975/87/EEC applies the competition rules to air transport, OJ 1987, L 374/1. 313 Cf also the more recent adoption of regulations in the area of state aid, where in the past it was enough to use guidelines, frameworks etc. See Subsection 8.3.3.2 on this.

Categories and Functions of Soft Law 229 Last but not least, it has become clear that a variety of instruments are used to lay down administrative rules. This proliferation of instruments and the way in which they are being used does not particularly contribute to the aim of transparency. Although aimed at improving legal certainty, what they engender may in fact be uncertainty, given that nowhere are these various instruments provided for or their (legal) status clearly established and explained. The difference in approach of the Commission and the Council as regards their use of recommendations, signalled above in Subsection 5.6.2, is extremely important in the assessment of how far recommendations may contribute to the aims of making Community action more transparent, effective and legitimate, or indeed achieve the very opposite. In this respect, it appears not only that Council recommendations may be more restrained as to their actual purpose, but also that the way in which the Council proceeds in the adoption of its recommendations is surrounded by far more guarantees than that of the Commission, from the point of view of both effectiveness and legitimacy. This is the case in particular because Council recommendations are very clearly adopted within the legal framework of the Treaty; a specific legal basis is established for virtually all recommendations and the prescribed decision-making procedures are consistently followed, as a result of which the European Parliament, the Economic and Social Committee and other actors are involved in the adoption process. So, the adoption of Council recommendations takes place on the basis of the law and in conformity with the legal basis and, as such, the internal and external division of competences is respected. The Commission’s way of acting, by contrast, is more doubtful, given the more far-reaching purpose often aimed at by its recommendations and the fact that they have not been accepted as such by the Member States or other possible addressees. Moreover, the actual involvement of these actors and of other institutions in the adoption process is not always of the same degree. If this involvement is (too) limited, then the use of recommendations can hardly be considered to contribute to increasing the effectiveness and legitimacy of Community action. The question also arises as to how far Article 211 EC, which is consistently cited as the legal basis for Commission recommendations, actually provides the legal competence for the way in which the Commission makes use of recommendations in practice. In particular, one might ask whether the Commission does not sometimes overstep the boundaries of its competence, as its way of acting has in certain instances appeared to be rather questionable, to say the least. The considerations offered above in respect of the Commission’s use of interpretative and decisional instruments also apply here. As such, the Commission’s manner of proceeding is thus far more likely than the Council’s to affect the internal and/or external division of competences.

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From the standpoint of transparency, both the Council’s and the Commission’s way of acting is acceptable, at least as regards the accessibility of its recommendations, and also the statement of reasons. Nonetheless, both Commission and Council recommendations do in fact give rise to problems because, given their wording, they often expect the Member States to implement and apply them. As a result, their legal status is (further) obscured and transparency problems, in the sense of legal certainty and equality, are created. Finally, when considering the use of the two types of non-formal steering instruments identified in this chapter from the perspective of effectiveness, legitimacy and transparency, a common feature that emerges is that they are not necessarily linked to existing Community law. In fact, they may be adopted precisely with a view to establishing principles and rules that as such do not yet form part of Community law. If their contents are actually linked to existing Community law (cf interpretative declarations), it appears that they relate not to the interpretation to be given to Community law on the basis of the Court’s case law, but rather to the Council’s or a Member State’s own interpretation thereof. As such, this interpretation is not necessarily contained in Community law. So, it seems that most often non-formal steering acts add to the existing legal framework in a certain area. Given the fairly limited pre-law function of Council conclusions and declarations and their mainly political purpose, there does not seem to be a danger of the Council imposing legal rights and obligations by these acts and of circumventing the regular decision-making procedures. On the contrary, the adoption of these acts may contribute to informing the public at an early stage of the direction in which the European Union is heading. The non-formal steering instruments fulfilling the para-law function, in particular resolutions and codes of conduct, pose more problems in terms of accountability and control.314 On the one hand, procedural and democratic guarantees are usually lacking in their adoption process; they do not usually mention a legal basis, a specific adoption procedure does not seem to be followed and publication and/or notification does not always take place or at least is not prescribed by the Council’s Rules of Procedure. Yet, on the other hand, these acts appear to be drafted in a less compelling way than for instance Council recommendations, raising less readily the impression of a legally binding act, and they do not usually aim at the harmonisation of legislation, but merely at the coordination of national policy. Furthermore, the adopting actor — the Council, the Representatives of the Governments of the Member States or both — at

314 See

the conclusions presented earlier in Senden and Prechal (2001), pp 197–99.

Categories and Functions of Soft Law 231 any rate makes clear whether the action taken falls within or outside the scope of Community law. Both types of non-formal steering instruments may contribute to the effectiveness of Community action by establishing at least a common political will on the direction that future Community action is to take and by possibly functioning as a ‘spring-board’ to the adoption of future legislation. As such, they have the advantage of creating or increasing the basis of support for certain rules in a rather flexible way. Yet, if it has actually been established that there is a need for legally binding rules, to be uniformly applied throughout the Community, such a situation will not be fully achieved. In that event, confinement to the adoption of resolutions and codes of conduct will in fact detract from the effectiveness of Community action, by allowing Member States to pick and choose what rules to implement, and whether they want to implement them at all.

Part III

Legal Issues of Community Soft Law

6 Legally Binding Force 6.1

B

INTRODUCTION

EFORE THE MANY different aspects of the legal effect of Community soft law can be discussed, it is necessary first to establish the conceptual and terminological framework for this discussion. The conceptualisation of ‘legal effect’ is a complex and tricky exercise, not least because it can be, and in fact has been, approached from several different angles. Consequently, it could be tempting to get into a rather philosophical or theoretical discussion on legal construction, in particular on ‘what makes law law’. Leaving aside the fact that many legal philosophers have already made important contributions to this debate, and indeed have done this much better than I might, this would not be in line with the approach taken in this book so far. As I said in Chapter 1, the focus of this book is on the phenomenon of soft law as manifested in the context and everyday practice of Community law. It is therefore only logical now to also look at the concept of legal effect as it should be understood on the basis of Community law. That is: how has the Community legislature defined this concept and what scope has it been given by the Court of Justice? It appears that the EC Treaty in fact contains only a rather traditional or classical, limited concept of legal effect, whereas the case law allows for a broader construction thereof. The concept of legal effect can therefore be characterised as an umbrella concept; it covers not only legally binding force sensu stricto, but also other possible legal effects of soft law. In short: legal effect may come about not only through a legal instrument or act of itself (legally binding force), but also by way of the operation of other legal ‘mechanisms’, in particular general principles of law and interpretation (indirect legal effects). For instance, a Commission notice, which lacks legally binding force, may gain legal effect in a particular case through the operation of the principle of legal certainty. This concept of legal effect must be distinguished from a merely de facto effect. Many authors have in some way or another recognised the existence of such an umbrella concept of legal effect in Community law, but their terminology may differ. This will be discussed in more detail in Section 6.2.

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The relation between soft law and hard law is clear: soft law that derogates from hard law must be denied all legal effect (Section 6.3). The main part of this chapter will then focus on the first side of the concept of legal effect, ie the possible legally binding force of Community acts that are presumed to be soft law acts. Generally speaking, legally binding force of an act can be established in two ways. First, it can be attributed such force as an ‘inherent’ feature of law. Whenever a Community instrument has not been attributed legally binding force as an ‘inherent’ feature, or when this has been expressly denied,1 the conclusion is often drawn that such an instrument lacks legally binding force. Indeed, by their very nature soft law instruments do lack such ‘inherent’ legally binding force (Section 6.4). Yet, secondly, it appears from the Court’s case law that an individual soft law act is capable of gaining ‘incidental’ legally binding force. This can be on the basis of its substance, and in particular the underlying intention of the authors of the act, in conjunction with a number of other conditions (Section 6.5); or it can be on the basis of agreement or involvement of the addressees in the adoption of the act (Section 6.6). The question then remains, of course, whether the Court’s approach should be deemed a satisfactory one. This assessment will focus on the prospects which this approach actually creates for legally binding Community soft law, and on the pros and cons of the approach as such (Section 6.7). Following on from this, some conclusions will be drawn in the light of the central question of this study (Section 6.8). 6.2

THE UMBRELLA CONCEPT OF ‘LEGAL EFFECT’

A person’s legal position comprises the total of his/her legal rights and obligations. In particular, an act affects this legal position when it creates or imposes (new) legal rights and obligations.2 The question here concerns the ways in which such legal effect may come about. 6.2.1

A Dual Concept of Legally Binding Force in the EC Treaty

Various Treaty provisions shed light on the concept of legal effect in EC law. Not surprisingly, the first to be mentioned here is Article 249 EC, 1 See Article 249 EC as regards recommendations and opinions. 2 See for an early example Joined cases 1 and 14/57 Usines à Tubes

de la Sarre v High Authority [1957] ECR 105, at p 114. Some indication is also given in Case 22/70 ERTA [1971] ECR 263, para 36 and in Case 60/81 IBM [1981] ECR 2639, para 19. Cf more recently Case C–443/97 Spain v Commission [2000] ECR I–2415, para 28. Furthermore, this is generally not the case for merely preparatory decisions, as for instance indicated by Joined cases C–239/96 R and C–240/96 R UK v Commission [1996] ECR I–4475.

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which describes a number of important Community legal instruments. It does this, in fact, in terms of whether or not they have binding force. It thus states, quite simply, that recommendations and opinions shall have ‘no binding force’. Regulations, directives and decisions are said to be ‘binding’, the remainder of the provision focussing on the contents and scope of this binding force; that is to say, upon whom and as to what these instruments are binding. Similar terms can be found in Article 300(7) EC, which states that (international) agreements adopted on the basis of this provision shall be ‘binding’. Furthermore, Article 230 EC provides for the possibility of bringing an action for annulment of Community acts other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties.

The latter part of this quotation is a literal codification of the Court’s judgment in Case Les Verts. In this judgment, the Court also stated unequivocally that the spirit and the scheme of the Treaty is to make possible a direct action of annulment against ‘all measures adopted by the institutions … which are intended to have legal effects’.3 However, Article 230 does not indicate when an act can be considered to produce such legal effects. Although the terminology contained in the Treaty is thus differentiated,4 it can be argued that the tenor of the terms used — ‘binding’ and ‘legal effects’ — is the same, namely referring to the notion of ‘legally binding force’. This notion is taken to refer to the capability of an act to affect a person’s legal position of itself, ie it ensues from the very nature of the instrument itself that it is legally binding and, on that sole ground, the rights and obligations contained in it can be enforced or have to be complied with. The most obvious and common way to establish the legally binding force of an act is for the legislature to stipulate explicitly in the law what instruments are to have such binding force; legal instruments are then attributed legally binding force as a general and inherent feature. This is what the drafters of the EC Treaty have done in Article 249 with respect to the regulation, directive and decision, and in Article 300(7) with respect to international agreements.5 Thereby, the EC Treaty provides for an exhaustive system of instruments having legally binding force as

3 Case 294/83 4 The French

Les Verts [1986] ECR 1339, para 24. version of the Treaty speaks respectively of lient/obligatoire and of effets juridiques, the Dutch of verbindend and rechtsgevolgen, and the German of verbindlich and Rechtswirkung. 5 It should be recalled here that third-pillar instruments are beyond the scope of this study.

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an inherent feature of Community law. This is what I will refer to as ‘inherent’ legally binding force. However, the way in which the Court has assessed appeals under Article 230 EC has made clear that the system is not closed as regards individual Community acts.6 A second way to establish legally binding force of Community acts will be seen to be on the basis of what one could call the ‘particular or specific merits’ of an individual act. If certain conditions are fulfilled, one of which is that the intention of legal effects has been established,7 then an act that does not have ‘inherent’ legally binding force can nonetheless obtain ‘incidental’ legally binding force. Within the framework of Article 230, ‘legal effects’ have been considered to exist when an act affects in a definite way the legal position of those that it concerns.8 The first relevant case in this respect is the Noordwijks Cement Accoord Case.9 It concerned the legal effects of a letter of the Commission, in which it applied the competition law rules. The Court considered the decisive point to be whether the letter ‘affected the interests of the undertakings by bringing about a distinct change in their legal position’. In particular, it held that it is unequivocally a measure which produces legal effects touching the interest of the undertakings concerned and which is binding on them. It thus constitutes not a mere opinion but a decision.10

One might wonder whether the Court considers a small or minor influence on the legal position of those concerned to be insufficient to establish ‘legal effects’, since it speaks here of a distinct change. In later case law the Court has used the same or similar terms.11 In my opinion, one should not draw too far-reaching conclusions in this regard: not only because it seems difficult to apply such a criterion — when can one speak of a minor or a major change in someone’s legal position? — but also 6 A deliberate distinction has been made here between ‘instruments’ and ‘acts’, the former term referring to a certain type of instrument in general, the latter to a specific individual act. 7 To be discussed in more detail in Subsection 6.5.2 below. 8 See also Subsection 6.5.1 below. 9 In the context of the ECSC Treaty, cf the early Joined cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53, p 72, in which the Court concluded that the letter from the High Authority at issue did not constitute a decision, since ‘such a statement does not establish any general rule and does not conclusively affect any individual interest’. 10 Joined cases 8–11/66 Noordwijks Cement Accoord [1967] ECR 75, at 91. Cf also Hartley (1998), at p 332, for a more detailed discussion of this case. 11 Cf Case 60/81 IBM [1981] ECR 2639, para 9 and Case 53/85 AKZO [1986] ECR 1965, para 19, in which the Court used the terms ‘clearly altered’. More recently, the Court held in Joined cases C–68/94 and C–30/95 France & Others v Commission [1998] ECR I–1375, paras 62–63, ‘any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position.’

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because the Court has not been consistent in the use of this ‘aggravating’ adjective. In the Gauff Case, for instance, the Court ruled in respect of a Commission letter concerning the application of the public procurement rules, that it was not a letter producing legal effects ‘of such a nature as to affect adversely the interests of the applicant by modifying its legal position’.12 Later case law has made clear that this change or modification can concern both the imposition of obligations and the conferral of rights. A good illustration of the former is the series of actions for annulment, brought by France, of a variety of Commission soft law acts, such as internal instructions and a code of conduct whereby the Commission tried to impose new information and notification obligations on the Member States.13 A clear example of the possible conferral of rights is the Grimaldi Case, in which the Court had to consider whether two Commission recommendations could be relied on before the national court with a view to ensuring the rights contained therein.14 To conclude, one could say that the concept of legal effect contained in the EC Treaty is the rather ‘classical’ concept of legally binding force, to be established in relation to an instrument or act of itself. Yet, this concept is dual in the sense that the binding force can either be attributed to an instrument as an inherent feature or can result incidentally from the particular merits of an act. I will show later that, in the assessment of whether a Community act is capable of having such incidental legally binding force, it is of great relevance whether it intends to affect a person’s legal rights and obligations.

6.2.2

Indirect Legal Effects Recognised in the Case Law

Taking a broader view of the concept of legal effect is particularly important for the overall assessment of the possible legal effect of Community soft law. This is because, by their very nature, soft law instruments lack inherent legally binding force, since one of their characteristics has been said to be precisely that they have not been attributed legally binding force as such. It will also usually be found that they lack incidental legally binding force, as they are not intended to have legal effects. The question

12 Case 182/80 Gauff [1982] ECR 799, para 18. 13 Cases C–303/90 France v Commission [1991]

ECR I–5315, C–325/91 France v Commission [1993] ECR I–3283 and C–57/95 France v Commission [1997] ECR I–1640. These cases will be considered in more detail below in Section 6.5. 14 Case C–322/88 Grimaldi [1989] ECR 4407, respectively paras 12 and 16. This case will also be further considered in Section 6.5 below. Cf also Case C–188/91 Deutsche Shell [1993] ECR I–363.

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is then whether Community law offers other ways and means whereby a Community act can influence a person’s legal position. The Court has indeed recognised this possibility and has adhered to a broader concept of legal effect than legally binding force alone. It has done this by reasoning that the fact that an act does not (intend to) have legal effects does not mean that it has no legal effect at all. The Court stated this in so many words in the aforementioned Grimaldi Case. The recommendations in question could not create rights to be relied upon before the national court, but at the same time the Court held that they could not therefore be regarded ‘as having no legal effect’. Following on from this, it established that the recommendations could gain legal effect by way of the national court taking them into account in its interpretation of Community law or national law.15 Thus, one could say that legal effect can come about by way of the legally binding force of an act not only in its own right, but also in combination with other legal ‘mechanisms’; or in other words, the legal effect does not ensue directly from the nature of the act itself, but indirectly from the operation of other legal methods and principles. At this point, it suffices to say that such indirect legal effects can occur as a result of interpretation, as the judgment in the Grimaldi Case makes clear, but also as a result of general principles of law, such as the principle of legal certainty and legitimate expectations. In Chapters 8 to 10, I will discuss at length the indirect legal effects of Community soft law which may be discerned on the basis of the Court’s case law.

6.2.3

In Summary: An Umbrella Concept

It appears that under EC law a Community act has legal effect if it is capable of changing a person’s legal rights and obligations.16 Thus, the question of legal effect of Community soft law does not relate as such to whether the rights and obligations laid down in it actually exist,17 but rather to whether these can be made effective or enforced in some way. This is the case if there is a legal obligation to give effect to or to comply with the rights and obligations contained in a Community act. As we have seen, this legal obligation may result not only from the legally binding force of an act, but also in a more indirect way from the operation of other legal methods and principles. As such, the concept of legal effect

15 Ibid. See further on the question of legal effect on the basis of interpretation, Chapter 9. 16 Cf also Case C–400/99 Italy v Commission [2001] ECR I–7303. 17 I would argue that this is beyond dispute, as other authors have done in relation to direc-

tives. Cf Prechal (1995), pp 122–29, and Gilliams (2000), pp 224–25.

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can be understood as an umbrella concept, covering not only the notion of — inherent and incidental — legally binding force but also that of indirect legal effects. In legal writing, most authors who have discussed Community soft law instruments have recognised, in one way or another, the existence of such a broad concept of legal effect. However, more limited views have been expressed as well, as was seen already in Subsection 5.4.2. In addition, it can be referred here to Hartley who very clearly adheres to a broad concept, holding that legal effect is not an all-or-nothing characteristic: an instrument may have some legal effects but not others — for example, an instrument may not have direct legal consequences in its own right, but may affect the interpretation of another instrument and thus have indirect legal consequences.18

Snyder as well states that what counts as ‘legally binding’ or ‘fully binding under Community law’ is a highly complex concept, even for those acts which are expressly provided in Article 189 EC … . To have legal effects does not necessarily mean to be legally binding erga omnes, in the sense of an EC regulation or of a law in the popular sense of the word.19

6.2.4

Delimitation of De Facto Effect

The foregoing also in fact indicates the criterion on which a distinction between legal effect and de facto effect can be based. The essential point in this respect can be considered to be whether or not there is a legal obligation to give effect to or to comply with the rights and obligations contained in a Community act. Consequently, when there is voluntary compliance with a soft law act, not compliance imposed by the law itself, we may speak of a purely de facto effect. Various judgments support this view. In the IBM Case, for instance, the ECJ held that A statement of objections does not compel the undertaking concerned to alter or reconsider its marketing practices … . Whilst a statement of objections may have the effect of showing the undertaking in question it is incurring a real risk of being fined by the Commission, that is merely a consequence of fact, and not a legal consequence which the statement of objections is intended to produce (emphasis added). 18 Hartley (1998), p 89. 19 Snyder (1996), pp 461–63.

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In the Nefarma Case, the CFI held that the fact that the Commission letter in question had led the national authorities to which it was addressed to adopt measures of national law, did not alter its legal nature.20

6.2.5

A Question of Terminology

Having thus presented the conceptual framework within which I will draw the picture of legal effect of Community soft law, a final word should be dedicated to the choice of terminology. From the above, it can already be seen that the terminology of the Treaty is not very clear-cut and consistent in this respect; Articles 249 EC and 300 EC speak of ‘binding (force)’ and Article 230 EC of ‘legal effects’,21 although in scope these terms boil down to the same notion, that is of legally binding force in the sense set out above. The wording of Article 249 indicates only that recommendations and opinions do not have (inherent) legally binding force, and Article 230 must be understood as precluding the possibility of bringing actions for annulment of Community acts that do not intend to have (either inherent or incidental) legally binding force. Hence, they do not imply any conceptual difference. The Court has recognised that there is more to the concept of legal effect than legally binding force sensu stricto, but has as yet not expressed this in distinctive terms. This leaves more leeway for the elaboration of a proper terminology and conceptualisation of ‘legal effect’ in EC law. In the foregoing subsections, I have made good use of this opportunity. For ease of reference, I have chosen to distinguish between the notions of legally binding force22 on the one hand and indirect legal effects on the other. The term ‘legal effects’ in the plural will also sometimes be used to denote the legally binding force of an act, in particular where this term is used by the Court. The term ‘legal effect’ in the singular is used as a term covering both the notion of legally binding force and that of indirect legal effects. Other authors have preferred to speak of direct and indirect legal effects. Hartley provides a clear illustration of this in the quotation in Subsection 6.2.3. Adam too has distinguished between unmittelbare Rechtswirkungen, in the sense of direkte Verbindlichkeit, and mittelbare Rechtswirkungen, in the sense of Rechtswirkungen indirekt über andere

20 Case T–113/89 Nefarma [1990] II–797, paras 75–79. See also Subsection 8.5.2 on this case. Cf

also Joined cases T–172–175–177/98 Salamander [2000] ECR II–2487, para 62 for the distinction between legal situation — factual situation. 21 Which can be explained by the fact that the latter is a rather literal codification of the Court’s judgment in Case 294/83 Les Verts [1986] ECR 1339. 22 ‘Legally binding’, ‘binding force’ and ‘binding’ are used as synonyms for this.

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gemeinschaftsrechtliche Grundsatze vermittelt.23 This terminology may be considered attractive because of its simplicity, and I do in fact concur with it, as far as the term ‘indirect legal effects’ is concerned: when an act may gain legal effect only through the roundabout route of other legal methods or principles, then the term ‘indirect’ can be regarded as appropriate to express this. However, I prefer the term ‘legally binding force’ or ‘legal effects’ to ‘direct legal effects’ for the following reasons. Firstly, it seems appropriate to conform at least as far as possible to the terminology of the Treaty and the Court. In my opinion, the term ‘legally binding force’ comes closer to this than the term ‘direct legal effects’. A more important reason is that the latter term can create confusion, as it could give the false impression that direct legal effect is to be equated to the notion of direct effect, and consequently that it relates only to acts having direct effect. This view is, however, too narrow. Clearly, an act such as a directive may lack (horizontal) direct effect but yet be legally binding on the national state. I therefore consider it clearer and more appropriate to speak of legally binding force when an act is of itself capable of creating or imposing rights and obligations.

6.3 A GENERAL PRECONDITION: NO DEROGATION FROM HARD LAW

With regard to the discussion of both the possible legally binding force of soft law in this chapter, and its possible indirect legal effects in the subsequent chapters, it is important first to consider more closely another aspect of the relation between soft law and hard law: namely, the question of the validity or legal effect of a soft law act if it is not in conformity with a hard law provision of Community law. To what extent may (tertiary) soft law acts derogate from binding primary and secondary Community law? Here again, the Court’s case law sheds light on the matter. A number of cases have concerned the application of time limits laid down in resolutions which sought to change or derogate from the time limits established in the EC Treaty itself. The Court has made very clear that such derogation is without effect. In the early Commission v Luxemburg and Belgium Case, the Court thus considered that the Resolution of the Council to take a decision under Article 43 by 31 July 1962 at the latest, so that the rules for milk products would enter into force by 1 November 1962 at the latest, does not create time limits having the same effect as those laid down in the Treaty.24 23 Adam (1999), p 118. 24 Joined cases 90–91/63

Commission v Luxemburg and Belgium [1964] ECR 625, at 631.

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However, the most well-known case in this respect is probably the Defrenne II Case, which concerned a resolution of the Member States, aimed at delaying the implementation of the principle of equal pay of women and men laid down in Article 119 EC (now 141). The Court held that: Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of Article 119, the Resolution of the Member States of 30 December 1961 was ineffective to make any valid modification of the time-limit fixed by the Treaty. In fact, apart from any specific provisions, the Treaty can only be modified by means of the amendment procedure carried out in accordance with Article 236.25

The Manghera Case concerned a Council resolution on national monopolies of a commercial character in manufacturing tobacco. According to the Court, the time-scale contained in the resolution could not prevail over the one contained in Article 37(1) of the (EEC) Treaty.26 In cases relating to state aid codes adopted by the Commission, the Court has followed a similar reasoning. Thus, it held in the Deufil Case that: The aid code constitutes guidelines setting out the course of conduct which the Commission intends to follow and with which it asks the Member States to comply in regard to aid to the synthetic yarns and fibres sector. It does not derogate from the provisions of Articles 92 and 93, nor could it do so.27

Some have tried to derive from this case law that soft law instruments generally have no binding force. The Court has not accepted this view, as its judgment in the CIRFS Case makes clear. In this case, which also concerned a state aid code, the French government argued on the basis of the Court’s characterisation of aid codes in the Deufil judgment, that the code in question had no binding force. The Court considered, however, that its reasoning in the Deufil Case could not be applied to the CIRFS Case, as the former case did not concern the question whether a state aid code could have binding force, but whether it could deviate from the Treaty.28 Consequently, the cited case law, except for the judgment in the CIRFS Case, should be seen primarily in the light of the issue of hierarchy of sources prevailing within the Community legal order.29 As binding 25 Case 43/75 Defrenne II [1976] ECR 455, paras 57–58. 26 Case 59/75 Manghera [1976] ECR 91, para 21. 27 Case 310/85 Deufil [1987] ECR 901, para 22. 28 Case C–313/90 CIRFS [1993] ECR I–1125, para 34. Cf also 29 Cf also Klabbers (1994), pp 1005–7. See also Section 2.2.

Snyder (1994), pp 197–225.

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secondary Community law may not deviate from primary Community law, it is quite logical that this should be even more true for tertiary Community soft law acts. In the Van Ameyde Case, the Court made this very clear for both secondary and tertiary acts, when it held that the directive, recommendation and decision which were at issue in this case, and which sought to abolish checks on the green card at frontiers between Member States ‘cannot be regarded as authorising the existence of national provisions or agreements … which are incompatible with the provisions of the Treaty … ’.30 The same naturally also applies for the relationship between secondary Community law and soft law acts; the terms of a tertiary soft law act cannot bring about any changes in binding secondary Community law. In the Witt Case, the Court thus held that: The explanatory notes to the common customs tariff … cannot amend those provisions, the meaning and scope of which are sufficiently clear.31

More recently, the Court considered in the Grand Garage Albigeois Case that the purpose of the Commission Notice on Clarification of the activities of motor vehicle intermediaries is merely to clarify certain terms used in the regulation and it cannot therefore alter the scope of the regulation.32

The conclusions to be drawn are clear. Independently of the question of what the legally binding force or indirect legal effects of a particular soft law act may be, it is unequivocally clear that it will be without legal effect if it derogates from or is not compatible with primary or secondary Community law provisions. In that event, the (application of the) latter will always prevail.33 This precondition of no derogation from primary and secondary Community hard law should be kept in mind when reading the remainder of this Part of the book.34 In particular, the conclusions to be drawn as to the legal effect of Community soft law must be considered

30 Case 90/76 Van Ameyde [1977] ECR 1091, para 15. 31 Case 149/73 Witt [1973] ECR 1587, para 3. 32 Case C–6/94 Grand Garage Albigeois [1996] ECR

I–651, para 21. Cf also Case C–266/90 Soba [1992] ECR I–287, para 19 and Case T–9/92 Peugeot [1993] ECR II–493, para 44: ‘an interpretative note cannot have the effect of modifying the mandatory rules contained in a regulation’. 33 This appears to apply not only for all soft law acts adopted by the Community institutions, but also for acts adopted by the Member States which relate to a matter within Community competence. The judgment in the aforementioned Case 43/75 Defrenne II [1976] ECR 455 makes this clear, as it concerned a resolution adopted only by the Member States. 34 See also Subsection 10.5.5 on the actual priority of the principle of legality over the principle of legitimate expectations/legal certainty.

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valid only as regards those cases in which there is no doubt about the compatibility of a soft law act with hard Community law.35

6.4

6.4.1

‘INHERENT’ LEGALLY BINDING FORCE

A Formal Approach to Hard Law

Turning now to a more detailed discussion of ‘inherent’ legally binding force, the first observation is that one can speak in two respects of a formal approach to Community instruments that have been attributed ‘inherent’ legally binding force; that is to say, when rules cast in the form of such instruments are considered to be binding as a matter of course. Firstly, only the instruments that as such have been attributed legally binding force in the EC Treaty can have inherent legally binding force. The instruments concerned constitute a closed or exhaustive system, to be extended only by the legislature. This view is supported by the fact that the EC Treaty provides explicitly in its Articles 249 and 300(7) for the instruments that are to be binding. Moreover, it seems only natural that in a legal system based upon the separation of powers, the competence to determine that a certain instrument is to have legally binding force as a general rule lies solely with the legislature. In the Community system, the Member States would have to decide any changes in this respect by means of a Treaty amendment,36 in order to prevent legal uncertainty. Consequently, instruments that have been explicitly denied legally binding force — ie recommendations and opinions — lack the capability of having ‘inherent’ legally binding force. The same goes for all those soft law instruments on which the EC Treaty is largely silent, and to which it obviously has not attributed legally binding force. Secondly, if a Community institution chooses to lay down rules in an instrument that has been attributed legally binding force as an inherent feature, then the intention of binding force is implied in this choice. Consequently, if rules have been cast in the form of a regulation, directive or decision (in the sense of Article 249 EC) or of an international agreement (in the sense of Article 300(7) EC), there is an irrefutable presumption that they are intended to have legally binding force. There is no need to demonstrate this on the basis of their actual contents, nor will the Court test whether they do indeed aim at being legally binding. The form of the act is thus decisive and, consequently, it is not possible to 35 A different

question is whether the legislature can (always) derogate by means of legislation from the line of conduct previously laid down in a soft law act. This question will be considered in Section 8.4. 36 This is what happened fairly recently with the third pillar instruments; under Article 34 TEU the Council may now adopt binding decisions.

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turn eg a regulation into a soft law act because it lacks the intention of legally binding force. Yet, it should be noted that the Court has adopted a substantive approach to hard law in one respect, as it considers not the form but the contents to be decisive as regards the question of whether an act is of a general or an individual nature; that is, whether it is a regulation or a decision that is actually at issue.37 In Subsection 6.5.1 we will see that the Court has clearly taken a substantive approach to soft law as well.

6.4.2

The Conditions for ‘Inherent’ Legally Binding Force

The rules laid down in instruments having inherent legally binding force are presumed to be legally binding, unless annulled or declared invalid by the Court of Justice. If their adoption or their contents are not in conformity with the requirements imposed by the law, their annulment or invalidity may be requested in respectively an Article 230 or 234 EC procedure. As was seen in Section 6.3 and Chapter 3, procedural and substantive requirements have to be fulfilled in this respect.38 I confine myself here to referring the reader to the discussion in those parts of the book.

6.4.3

Differences in Scope

Although a number of Community legal instruments thus share the feature of inherent legally binding force, it must at the same time be acknowledged that the modalities of this binding force differ. That is to say, there is no (total) uniformity in the ways in which the legally binding force of these instruments affects a person’s rights and obligations. On reading Article 249 EC, it in fact immediately becomes clear that the precise scope of legally binding force depends on the instrument at issue. The instrument of the regulation is most akin to national ‘laws’, as it is said to be of general application and directly applicable in all Member States. This means that, in principle at least, a regulation will have binding effect erga omnes and can directly impose rights and obligations. The decision too ‘shall be binding in its entirety’ but only ‘upon those to whom it is addressed’. A directive is only binding on those to whom it is addressed. In fact, the directive has to generate its general, external and binding effect in principle only by way of the national implementing 37 Cf Case 147/83 Binderer [1985] ECR 257. This is in fact already implied in the wording of Article 230 EC itself, when it allows for the instigation of proceedings against a decision which, although in the form of a regulation, is of direct and individual concern to a person. 38 See also the grounds listed in Article 230 itself.

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legislation. This has already been explained in some detail in Chapter 2. Nonetheless, it is worthwhile here to dedicate one more thought to the instrument of the directive, which is also illustrative for the further discussion of ‘incidental’ legally binding force of soft law. Not surprisingly, the legally binding force of EC directives, in particular the enforcement thereof, initially gave rise to the most problems in practice. As a result, the question of the possible direct effect of directives soon arose. One of the arguments put forward by the adversaries of direct effect of directives was that since Article 249 attributed direct effect to regulations only, directives could not have direct effect. The Court refuted this argument by saying that the fact that this provision attributes direct applicability only to regulations, does not mean that other instruments mentioned therein cannot have such an effect. The Court concluded that directives were in fact capable of having direct effect, albeit only in vertical relations.39 This shows not only that according to Article 249 the legally binding force of Community instruments is variable in scope, but even more importantly for our purposes, that this provision is not conclusive in this respect. This also appears to be the case as regards the statement therein that recommendations and opinions are not binding. 6.5

‘INCIDENTAL’ LEGALLY BINDING FORCE ON THE BASIS OF SUBSTANCE (I)

On various occasions, the Court has had to rule on the question of legally binding force of acts that lack such force as an inherent feature of law. From the discussion of this case law, it will appear that two possible ways of recognising ‘incidental’ legally binding force come into play. Firstly, this may be on the basis of the substance of an act, in conjunction with a number of other conditions, similar in fact to those for inherent legally binding force (I). Secondly, this recognition is possible in certain circumstances on the basis of agreement (II). As regards the first way, it already became evident in the Grimaldi Case that Article 249 is not conclusive when it comes to the legal status of recommendations and opinions. The Court followed the same line of reasoning as in the above case law on directives. In respect of the two Commission recommendations at issue, it held in particular that the fact that regulations are said to be directly applicable in Article 189 (now 249) ‘does not mean that other categories of measures covered by that article can never produce similar effects’.40

39 Case 8/81 Becker [1982] ECR 53 and Case C–91/92 Faccini Dori [1994] ECR I–3325. See also Subsection 2.4.1.4. 40 Case C–322/88 Grimaldi [1989] ECR 4407, para 11.

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Recognition of ‘incidental’ legally binding force of individual acts on the basis of their substance and underlying intention presupposes a substantive approach to soft law.

6.5.1

A Substantive Approach to Soft Law41

At first sight, the wording of Articles 249 and 230 EC seems quite straightforward. Obviously, the European legislature wanted to establish that recommendations and opinions were not to have legally binding force. In dealing with actions for annulment against such acts, the Court could thus simply have referred to these provisions, in order to conclude that by their very nature they do not aim at having binding force. This is also the argument put forward consistently by the Community institutions, in particular the Commission, to deny the admissibility of these actions. For its part, the Court has been rather persistent in taking another line of reasoning. The Court has asserted that Article 249 merely establishes a refutable presumption in this respect. That is to say, the fact that rules have been laid down in the form of a recommendation or another soft law instrument is not conclusive as to its legal nature; this choice of instrument does not justify the immediate conclusion that these measures are not intended to have binding force. Thus, it is here not the chosen form of the act that determines its legal nature, but rather the intention of the authors as this can be derived in particular from the actual contents of the act. As a result of this substantive approach, the question of legally binding force of soft law cannot simply be brushed aside. The origin of this approach can be traced back to early case law of the Court relating to the ECSC Treaty. In the Usines à Tubes de la Sarre v High Authority Case the Court thus held in respect of two letters sent by the High Authority that only acts of the High Authority which, regardless of their form, constitute decisions or recommendations within the meaning of Article 14 of the Treaty may be the subject of an application for annulment.42

41 This

approach in fact covers all Community acts that have not been attributed inherent legally binding force, hence also acts that as such may not fall within my definition of soft law. In the framework of the following discussion, I will therefore also refer to case law relating to eg Commission letters or telex messages; in respect of these it should be noted that although they do not as such constitute administrative (soft law) rules, they are often based on them. Cf in this respect also Lauwaars (1993), p 24. 42 Emphasis added. Joined cases 1 and 14/57 Usines à Tubes de la Sarre v High Authority [1957] ECR 105, at p 114. It should be added here that recommendations under the ECSC Treaty are similar to directives under the EC Treaty.

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In the context of the EC Treaty, this approach was not evident from the outset. Thus, in the early case law, the Court linked the form in which an act had been cast to the intention of its authors.43 This was evident in particular from the Commission v Luxemburg and Belgium Case, which concerned a resolution whereby the Council had undertaken to adopt a certain decision within a particular period of time. The fact that the Council had not complied with this resolution could not be held against it, according to the Court, since the intention of the authors of the measures is clear from the fact that they adopted it under a style and form which are not those of the binding measures of the Council within the meaning of Article 189 of the Treaty.44

Some years later, however, the Court removed any doubt that might have existed about its approach. This was in the ERTA Case, a landmark case in several respects.45 In the particular context of this study, it can indeed be regarded as such, since it provides the basis for the substantive approach to soft law also being taken in the framework of the EC Treaty. The Court had to decide inter alia whether the act in question was one whose legality was open to review under Article 173 (now 230) EC. The act concerned was the Council proceedings of 20 May 1970 regarding the negotiation and conclusion by the Member States of the Community … of the European Agreement concerning the work of crews of vehicles engaged in international road transport (ERTA). The Council contended that these proceedings could neither by their form, nor by their subject matter or content, be considered to be a regulation, directive or decision in the meaning of Article 189 (now 249). They were considered to be ‘really nothing more than a coordination of policies amongst member States within the framework of the Council’. The Court refuted this argument, by considering firstly that admissibility of the action for annulment cannot be confined to the categories of measures referred to by Article 189. Since the objective of the review is to ensure observance of the law in the interpretation and application of the Treaty, as required by Article 164 (now 220) EC, such a restrictive interpretation would be inconsistent with this objective, according to the Court. It concluded in particular that: An action for annulment must therefore be available in the case of all measures adopted by the institutions, whatever their nature and form, which are intended to have legal effects (emphasis added).46 43 Cf also Lauwaars (1970), p 49. 44 Joined cases 90–91/63 Commission

also Section 6.3 above on this case. ERTA [1971] ECR 263.

45 Case 22/70 46 Para 42.

v Luxemburg and Belgium [1964] ECR 625, at p 631. See

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Since then, this substantive approach has been confirmed in many subsequent judgments.47 The substantive approach entails that it has to be ascertained, on a case by case basis, whether an act that has not been attributed (inherent) legally binding force aims at having binding force or (indeed) only at expressing the political will or opinion of its authors or at giving guidance. The recognition of ‘incidental’ legally binding force of such acts depends further on the fulfilment of a number of other conditions, as may be seen from the case law of the Court.48 These conditions ensue in particular from a number of cases brought by France against the Commission and relate not only to the intention of the adopting institution, but also to whether new or already implied legal effects are at issue, and to the legal basis of the act and the exercise of competence in conformity therewith. These conditions will be discussed successively, after which consideration will be given to the obscurities and implications of the ‘test’ thus developed by the Court. During this discussion, consideration will also be given to the question of whether the form of an act has become totally irrelevant for the assessment of its possible legally binding force.

6.5.2

The Intention of Legally Binding Force

In establishing the intention of the adopting institution, the actual contents of the act obviously play an important role. The contents are largely determined by its wording and terms. However, it appears from the Court’s case law that other elements can play a role in this assessment as well, such as the context in which the adoption of an act must be seen. The conclusion as to whether binding force is intended usually depends on an interplay of these elements. At the same time, it must also be acknowledged that intention is an ‘awkward concept’ and in particular that the identification thereof is a difficult exercise.49 Yet, if this intention cannot be established, there is no need to look at the other conditions. 6.5.2.1

Wording and Terms

The Court attaches considerable weight to the terms in which an act has been couched.50 In a number of cases, it has considered that the contents 47 Case 60/81 IBM [1981] ECR 2639 and the cases mentioned above in Subsection 6.2.1 and below in Subsection 6.5.2. 48 Cf also Lasok and Bridge (1991), pp 155–57. 49 See Klabbers (1996), pp 65–95, who describes it in this way. 50 Cf outside the area of soft law also eg Case C–327/91 France v Commission [1994] ECR I–3641, in particular para 15, concerning an agreement concluded by the Community with a

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and wording did not give cause for the conclusion that binding force was intended, without however indicating more precisely why it took this view. In the Schlüter Case, for instance, the Court thus held that the resolution of 22 March 1971 is primarily an expression of the policy favoured by the Council and government representatives of the Member States concerning the establishment of an economic and monetary union within the next ten years following 1 January 1971, [which] cannot for its part, either, by reason of its content, create legal consequences of which parties might avail themselves in court.51

In the Sucrimex Case, the Court considered whether a telex message sent by the Commission was capable of having any legal effects. It concluded that neither the wording nor the content of the contested telex message showed that it was intended to produce any legal effects. It concluded from this that a written expression of opinion by a Community institution could not constitute a decision in respect of which an action for annulment may be brought.52 From other cases it appears that the intention to follow a particular line of conduct does not imply an intention of binding force. In Case C–180/96 UK v Commission the Court thus considered in respect of ‘statements of position’ of the Commission, that these reflect its intention to follow a particular line of conduct or merely confirm a previous act and as such do not intend to have legal effects.53 In the Region of Tuscany v Commission Case the CFI concluded, rather bluntly it seems, concerning a Commission letter that: A written expression of opinion by a Community institution cannot constitute a decision in respect of which an action for annulment may be brought, since it is not capable of producing any legal effects nor is it intended to produce such effects.54

This conclusion does not make clear whether the CFI actually looked at the contents of the letters or whether it considered that by their very nature such letters constitute an expression of opinion. third state; purely on the basis of the text itself the Court concluded that legal effects were intended. 51 Case

9/73 Schlüter [1973] ECR 1135, para 40. Cf also the above-mentioned Case 59/75 Manghera [1975] ECR 91, in which the Court concluded in para 21, without any further examination or reasoning, that a resolution ‘basically expresses the political will of the Council’ and that it ‘cannot engender effects which can be used against individuals’. 52 Case 133/79 Sucrimex [1980] ECR 1299. 53 Case C–180/96 UK v Commission [1998] ECR I–2265, paras 27–30. Cf also the earlier Case 26/76 Metro [1977] ECR 1875, para 4, Case 114/86 UK v Commission [1988] ECR I–5289 and Case 151/88 Italy v UK [1989] ECR 1255, concerning a telex message containing an expression of the interpretation to be given to legislation. 54 Case T–81/97 Region of Tuscany v Commission [1998] ECR II–2889, para 22.

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In the The Netherlands v Council Case, concerning the Code of Conduct on Access to Council Documents, the Court offered further clues by holding that the Code’s paragraph on ‘Implementation’ already made apparent that the Code is an act which is the expression of purely voluntary coordination and is therefore not intended in itself to have legal effects.

For in that paragraph the institutions were invited to implement the principles governing access to Commission and Council documents, as these were agreed upon in the Code. As such, the Code was considered merely to foreshadow subsequent decisions, intended, unlike the Code, to have legal effects.55 An even more revealing and interesting Case is C–57/95 France v Commission, in which the Court did conclude, inter alia on the basis of the wording of the Commission communication at issue, that there was indeed an intention of binding force. It appears that if an institution has not been careful in choosing the terms of its soft law acts, ie if these are of an obligatory nature, it will be difficult to maintain that the act does not intend to impose any obligations. This case concerned the Commission Communication on an Internal Market for Pension Funds. The Commission argued that the communication was not of a binding nature ‘since the word “shall” is always preceded by a verb which merely expresses an opinion’. The Court did not agree with this and held that a number of its provisions are ‘characterised by their imperative wording’.56 Consequently, even in the event that an act explicitly states that it does not aim at creating any enforceable rights or obligations, which does sometimes occur in practice,57 such a consideration is not conclusive, in particular if the wording of the separate provisions indicates the opposite. However, if the act states that the adopting institution considers itself to be bound by the act and that the act will be valid during a certain period of time, this does contribute to the establishment of the intention of binding force.58 Fixing a deadline for implementation of an

55 Case C–58/94 The Netherlands v Council [1996] ECR I–2169, paras 26–27. Cf also Case T–105/95 WWF UK v Commission [1997] ECR II–313, paras 53–56, in which the CFI dealt with the Commission Code of Conduct on access to documents. 56 Case C–57/95 France v Commission [1997] ECR I–1640, respectively para 14 and 18. 57 For examples see eg Subsection 5.4.3.1. In the Communication on an Internal Market for Pension Funds at issue, the Commission did not state this in so many words, but considered that it ‘aids interpretation of the Treaty’ and that it did ‘not introduce any fundamentally new principles’. See its point 1.12, OJ 1994, C 360/7. 58 Cf also Joined cases C–239/96 R and 240/96 R UK v Commission [1996] ECR I–4475, para 38, in which the President of the Court concluded that the Commission itself had acknowledged in its written observations that the contested circulars, being equivalent to invitations to tender, determined the scope of the selection procedure and as such had legal consequences.

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act or providing for its entry into force, which occurs in practice as well,59 adds to this conclusion. Highly illustrative in this respect is the judgment of the Court in Case 81/72 Commission v Council. In this case, it was held that: Both the antecedents and the terms of the Decision taken make it clear that the Council intended to bind itself to observe fixed criteria, in the working out of subsequent measures relative to the periodic determination of remunerations. This intention shows itself particularly in the provisions whereby the system established by the Decision ‘shall be applied’ as an experiment and for a period of three years, from the affirmation that ‘it is within the framework of the provisions of the present Article 65 of the staff Regulations’, from the statement of an ‘operative date’ and finally from the insertion of an express reservation by which the application of the new method for an experimental period ‘cannot give rise to vested rights’. In the course of the oral procedure, moreover, the Council repeatedly emphasised that it acknowledged itself to be bound by this act, that it still intended to respect it, and that the disagreement turned exclusively on the interpretation of the decision. It appears, therefore, that by its Decision of 21 March 1972, the Council … assumed obligations which it has bound itself to observe for the period it has defined.60

6.5.2.2

Context and Previous History

This quotation from Case 81/72, Commission v Council also brings me to the role that can be played by the context in which an act has been adopted. In this case, the Court apparently deemed it of relevance that the Council had followed a certain procedure before adopting the decision in question. In particular, the Court emphasised the fact that the Council had acted upon a proposal of the Commission and following consultations between the latter and the organisations representing the staff.61 In Case C–57/95 France v Commission, also mentioned above, the role of the context or previous history of an act with regard to its intended binding force was made painfully clear to the Commission. In this case, the Court concluded that the Commission Communication on an Internal Market for Pension Funds was intended to be legally binding, by referring inter alia to the fact that it contained measures which ‘constituted the subject-matter of the proposal for a directive which the Commission withdrew because of a deadlock in the negotiations with Member States in the Council’, as it acknowledged itself in paragraph 1.4 59 See Subsections 5.4.3.1 and 5.4.4.1 for examples in this respect. 60 Case 81/72 Commission v Council [1973] ECR 575, paras 8–9. 61 Ibid, para 8.

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of the communication.62 In fact, the communication was published only days after the Commission had withdrawn the proposal for a directive. Illustrative too is the observation of Advocate-General Tesauro that at issue was an ‘operation of camouflaging the proposal for a directive as a communication’ that had ‘not — deliberately or through carelessness — been completely successful’.63 Hence, the context or background against which the adoption of an act must be seen can certainly contribute to the conclusion that it does not simply aim at giving guidance or interpreting the Treaty in a non-engaging way, but rather at imposing (new) obligations or creating rights. In particular, in a case where the Commission is acting and the Council cannot reach agreement on its proposals for legislation or the Council contests a certain interpretation,64 this suspicion may easily arise. 6.5.2.3

Other Possible Indicators

The question is whether there are yet other possible elements that may say something about the author’s intention.65 With respect to this, one might first wonder whether the substantive approach implies that the form in which an act has been cast, has become totally irrelevant in the assessment of its intended legally binding force. According to A-G Tesauro, this conclusion can indeed be drawn from the Court’s case law.66 However, I would argue that this is not the case, since the Court has also recognised the fact that the lack of legally binding force may often be precisely the reason for the institutions to have recourse to a soft law instrument. The Court acknowledged this explicitly in the Grimaldi Case, in which it held that recommendations are non-binding according to Article 189 (now 249) and that they are generally adopted by the institutions of the Community when they do not have the power under the Treaty to adopt binding measures or 62 Case C–57/95 France v Commission [1997] ECR I–1640, para 21. 63 Ibid, point 17 of his opinion. 64 See eg Case C–366/88 France v Commission [1990] ECR I–3571 and

the quotation therefrom in Subsection 6.5.3 below. 65 For an international law view, see Klabbers (1996), pp 65–95. 66 In point 6 of his opinion in Case C–366/88 France v Commission [1990] ECR I–3571, he considered only that the judicial assessment of an expression of will is based on the substance of the measure in question, its content and the effects which it produces, less important, from that point of view, is the form chosen for it. Yet, in point 15 of his opinion in Case C– 57/95 France v Commission [1997] ECR I–1640, he concluded that the Court has confirmed in its case law that the ‘formal criterion is completely irrelevant’ (emphasis added).

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when they consider that it is not appropriate to adopt more mandatory rules.67

Thus, the Court may take at least some account of the reasons underlying the choice of form or instrument, with a view to establishing whether or not binding force is intended.68 In fact, the Court then looked further into these reasons, in particular at whether they underlay the recommendations in question. In this regard, the Court’s judgment makes clear that reference to Community law provisions in an act can also play a role in the assessment of the intention of legally binding force;69 reference to (Treaty) provisions that do not confer any powers on the EC for binding Community measures, can be taken as an indication that there has been recourse to a soft law act for precisely this reason. More in particular, the Court gave consideration to the fact that the two recommendations at issue contained in their statement of reasons a reference to (ex) Articles 117 and 118 of the Treaty. The Court next recalled previous case law in which it held that: Article 118 does not encroach upon the Member States’ powers in the social field in so far as the latter is not covered by other provisions of the Treaty and provided that those powers are exercised in the framework of cooperation between Member States, which is to be organised by the Commission.

Thereupon it concluded: In these circumstances there is no reason to doubt that the measures in question are true recommendations, that is to say measures which, even as regards the persons to whom they are addressed, are not intended to produce binding effects (emphasis added).70

Consequently, the Court concluded that there was no intention of binding force, under (sole) reference to the Communities’ limited powers in the social field. One might wonder whether this could also be the other way round; if a soft law act relates to a Treaty provision that provides explicitly and 67 Case C–322/88 Grimaldi [1989] ECR I–4407, para 13. 68 The difference from the Court’s approach in eg Joined

cases 90–91/63 Commission v Luxemburg and Belgium [1964] ECR 625 mentioned in note 44 above is that there the Court concluded rather indiscriminately from the form of the act that no binding force was intended. 69 This should not be confused with the requirement of a legal basis for the actual recognition of the existence of legally binding force of an act, to be discussed in Subsection 6.5.4 below. 70 Case C–322/88 Grimaldi [1989] ECR I–4407, para 16.

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solely for the adoption of binding measures, can this fact contribute to establishing the intention of binding force? Although such a conclusion seems very far-reaching, particularly in view of the fact that the Community institutions will be seen to have rather wide powers to adopt ‘true’ soft law acts,71 I am of the opinion that it should not be immediately excluded. This is because support for this position can also be found in the Grimaldi Case, in particular in the above consideration of the Court that recommendations are generally adopted by the Community institutions when the Treaty does not confer the power upon them to adopt binding measures. Where this power is actually provided for, the ‘danger’ lurks that an institution may in fact want to impose (new) legal rights and obligations by way of soft law acts.72 When soft law acts are systematically adopted in the framework of Treaty provisions that provide for the possibility or even obligation to adopt legislation, this danger is not unimaginable.73 Next, the merely preparatory nature of an act adopted in the course of preparing a final decision, can also be taken as an indication that no legally binding force is intended.74 Finally, it appears that the fact that an act has been published and/or notified to its addressees can also contribute to the finding that binding force is intended.75 In a number of cases in which the Court concluded there was such an intention, it emphasised at least that the acts in question had been published in the C-series of the Official Journal and/or had been notified to the Member States.76 Moreover, the Court has accepted the publication and notification of certain acts as proof that they were not merely internal documents, but also intended to have external effect, outside the adopting institution or administration.77 However, publication or notification in itself does not necessarily lead to the conclusion that binding force is intended, nor that external effect is intended, as the judgment of the Court in the above-mentioned 71 See Chapter 7. 72 Cf also the opinion

of Advocate-General Tesauro in Case C–325/91 France v Commission [1993] ECR I–3283, in particular point 22 thereof, relating to the area of state aid. 73 To give an example, the tax law area seems to be an area in which this danger might occur. See the harmonisation ‘assignment’ in (now) Article 93 EC and the Commission Communication on tax policy in the EU as discussed in Subsection 1.7.1. 74 As seen in for instance Joined cases C–239/96 R and C–240/96 R UK v Commission [1996] ECR I–4475. 75 This is a different question from the one to be considered below, ie whether publication and notification are a prerequisite for the recognition of legally binding force of an act. 76 Cf Case C–303/90 France v Commission [1991] ECR I–5315 and also point 11 of the opinion of Advocate-General Tesauro. 77 In Case C–325/91 France v Commission [1993] ECR I–3283, para 30, the Court refuted the Commission’s argument that the communication in question was a circular addressed to the Commission’s departments, by arguing that ‘it is sufficient to note that the communication refers expressly to the Member States and was, moreover, notified to them’. Cf also Case C–366/88 France v Commission [1990] ECR I–3571, para 10.

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The Netherlands v Council and Commission Case clearly illustrates:78 despite the fact that the Code of Conduct on access to documents at issue in this case had even been published in the L-series of the Official Journal, the Court concluded that it was an internal document that was not intended to have legal effects. 6.5.3

New or Existing Legal Effects?

For legally binding force of a soft law act to be established, it is not sufficient that it aims merely at legal effects; it must aim at new or independent79 legal effects, not already contained in the (underlying) provisions of Community law. In fact, the assessment of the intention of binding force in itself implies the examination of whether new legal effects are intended or not. It appears that such new legal effects often concern verification and information obligations imposed by Commission soft law acts. This can be seen very clearly in the following two judgments of the Court, discussed partly above. The first, Case C–366/88 France v Commission,80 also demonstrates the interplay of the different constitutive elements of the intention of legally binding force, as discussed in the foregoing. This case concerned internal instructions of the Commission, in respect of which the Court held that the contested measure is distinguished from an ordinary service instruction both by the circumstances in which it was adopted and by the conditions under which it was prepared, drawn up and published. It is apparent from the documents before the Court that in this case the measure represents a position taken by the Commission as to the extent of the supervisory powers of its officials in relation to the taking of samples under Article 9 of Regulation No 729/70. That position is based on an interpretation of that provision which had previously been contested by certain Member States. In order to decide whether the contested measure is intended to have legal effects additional to those arising from Article 9 … , it is necessary to examine its content. [para 10–11] … It must therefore be stated that the contested measure does not confine itself to making more explicit the rules laid down in Article 9 … but adds to the text of that provision by empowering the Commission to take samples, independently of the Member States, and by laying down detailed arrangements for its action in that regard. [para 23] 78 Case C–58/94 The Netherlands v Council and Commission [1996] ECR I–2169. 79 Cf Case C–400/99 Italy v Commission [2001] ECR I–7303, para 62 for the latter 80 Case 366/88 France v Commission [1990] ECR I–3571.

designation.

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The aforementioned Case C–57/95 France v Commission81 is also highly illustrative in this respect, because the Court countered the Commission’s argument that it was merely an interpretative communication, pointing only to the consequences resulting from the direct application of the Treaty principles to institutions for retirement provisions, and that it did not add any new obligations. According to the Court, the very content of certain paragraphs of the communication showed that the legal effects were not inherent to the Treaty provisions on the free movement of services and capital and freedom of establishment, nor intended simply to clarify the proper application thereof. It further held that these provisions in themselves were not sufficient to eliminate all obstacles to free movement and that the adoption of directives laying down measures to make easier the effective exercise of the rights resulting from the Treaty provisions was necessary. Such measures had precisely been laid down in the communication, which before were contained in the directive proposal. The Court thus concluded that the communication did aim at having legal effects, in particular at imposing new legal obligations, not already contained in the relevant Treaty provisions themselves. As in the case of establishing the intention of legally binding force, it may not always be clear or obvious whether an act establishes new legal effects or only makes explicit those effects already contained in the underlying legislation. This was highlighted in Case C–433/97 Spain v Commission, in which Advocate-General La Pergola concluded that at issue were internal guidelines entailing new legal effects, whereas the Court considered that this was not the case. The Court considered in particular that the internal guidelines on financial corrections to reduce or suspend aid from the structural funds under Article 24 of Regulation 4253/88, constituted an act of the Commission, which reflects only its intention to follow a particular line of conduct in the exercise of the power granted to it by Article 24 of the coordination regulation … .82

6.5.4

Legal Basis and Exercise of Competence in Conformity Therewith

Once it has been established that a soft law act in fact aimed at having legally binding force, and that the imposition of new legal effects is involved, then the question arises whether the adopting institution was empowered to impose such effects. If not, annulment of the act will be required, as will be seen. Therefore, the next condition to be fulfilled before 81 Case C–57/95 France v Commission [1997] ECR I–1640. 82 Case C–443/97 Spain v Commission [2000] ECR I–2415.

the Advocate-General.

See point 24 for the viewpoint of

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one can conclude that a soft law act has binding force is the identification of a legal basis, in the Treaty or secondary legislation, which confers the power on its author(s) to adopt binding measures.83 This also follows from the Court’s judgment in two of the above-mentioned cases. In Case C–366/88, the Court thus considered that: As regards the power of the Commission to adopt provisions adding to the text of Article 9 of Regulation No 729/70, it must be stressed that no such power is provided for by that regulation and that, in any event, only the Council is empowered, under Article 9(3), to adopt general rules for the application of that article.84

Following on from the above reasoning in Case C–57/95, the Court proceeded in this case to examine the Commission’s competence to impose the obligations at issue. It concluded that no such competence was provided for in the Treaty and that, in any event, only the Council is empowered to adopt directives in respect of the relevant Treaty provisions. On these grounds, the Court declared the appeal for annulment both admissible and well founded. Sometimes, however, the adopting institution may in fact be competent to impose new legal obligations. It then appears that the existence of competence as such is not sufficient; this competence has to be exercised in conformity with the legal basis. This means not only that an act has to be adopted by the ‘right’ institution, but also that the legal basis must be mentioned explicitly in the act concerned, and that the instrument which this prescribes, if any, must be chosen. A case in point in this respect is Case C–325/91 France v Commission. This case related to the Commission Communication on Application of Articles 92 and 93 of the EEC Treaty and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector. The annulment of this communication was sought by France, arguing that it added new obligations to the information obligation imposed on the Member States by Article 5(2) of the directive. The Court first established that the communication did indeed impose a new information obligation of a systematic and general nature on the Member States concerning the financial relations between them and public undertakings, which as such was not required by the directive provision; in other words, that a new legal obligation was being imposed by the Commission. In the subsequent assessment of whether the Commission was competent to impose this obligation, the Court held that this was in 83 See

below Subsection 6.5.5 on the connection between this requirement and the statement of reasons requirement. 84 Case 366/88 France v Commission [1990] ECR I–3571, para 24. Cf also Case C–303/90 France v Commission [1991] ECR I–5315, paras 30–33.

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fact the case. The Commission could be considered competent, in that Article 90(3) empowers it to adopt directives and decisions in view of the application of this article. It then considered whether the Commission had rightly exercised this competence, by not indicating Article 90(3) as a legal basis of the communication. The Court held in this respect: [A]s the Court has repeatedly held, Community legislation must be clear and its application foreseeable for all interested parties. As a result of that requirement for legal certainty, the binding nature of any act intended to have legal effects must be derived from a provision of Community law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis.

Hence, Article 90(3) should have been mentioned as the legal basis of the communication and, moreover, it should have taken the form prescribed by that provision: that of a directive or decision.

6.5.5

Some Obscurities

6.5.5.1

Is the Court’s ‘Test’ Complete?

In the cases at issue before it, the Court has considered the conditions identified above, and they have proved sufficient to permit the conclusion that a particular act did not have legally binding force. However, these conditions have developed only quite gradually and one might actually wonder whether the process of development has been completed. Thus, a first question is whether the conditions identified comprise all the relevant conditions for establishing legally binding force of a presumed soft law act. This question is all the more pressing now that the inference can be drawn from the foregoing discussion that the recognition of ‘incidental’ legally binding force of an act demands the fulfilment of the same requirements as the adoption of any of the formal legally binding instruments of Community law.85 Yet, in the present state of the case law one may question the precise extent of this similarity. In particular, some doubts remain as to the applicability of the requirement of statement of reasons and the issues of decision-making procedure and publication and notification. The Giving Reasons Requirement As regards the requirement of statement of reasons, laid down in Article 253 EC, it is somewhat unclear how far this constitutes another essential (procedural) condition for the recognition of incidental legally binding force of a Community act. This is because in most of the cases in which a plea alleging infringement of this 85 See

also Chapter 3.

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provision has been raised, the Court has not needed to address it because the action was already considered well founded on other grounds, such as lack of competence.86 Furthermore, the older case law seems rather contradictory in this respect. The Court’s judgment in the Usines à Tubes de la Sarre Case points clearly towards applicability of this requirement, as the Court declared non-existent a letter of the High Authority that was not substantiated with reasons. 87 However, it is questionable whether this judgment can be said to (still) apply in a more general way: firstly, because it is the only case in which the Court has ever declared an act non-existent for this reason, and secondly, because at issue in this case was Article 54(4) ECSC, which explicitly requires a ‘reasoned opinion’.88 In the Noordwijk Cement Accoord Case, the Court concluded that a letter sent by the Commission to a number of undertakings in fact constituted a decision in the sense of (now) Article 249, and subsequently annulled it for having failed to state the reasons on which it was based.89 In this case, the applicability of the requirement can clearly be explained by the explicit ‘redesignation’ of the letter as an act that by virtue of Article 253 requires a statement of reasons. The judgment in the later ERTA Case points in the direction of nonapplicability of this requirement, albeit not unequivocally. In this case the Court held, in response to the Commission’s claim that the contested proceedings did not indicate the legal grounds on which they were based and provided no statement of reasons, that Article 190 (now 253) EC imposes these requirements only as regards regulations, directives and decisions and that they ‘cannot be extended to measures of a special nature such as the proceedings of 20 March 1970’. It added, however, The Commission’s participation in the actual work of the Council afforded it all the legal safeguards which Article 190 was designed to ensure for third parties affected by the measures mentioned therein.90

Thus, on the one hand, the Court declared Article 190 (now 253) not applicable, while on the other hand seeming to require that there should be at least some protection of the interest that the statement of reasons requirement intends to guarantee. Again, however, one may doubt whether the Court’s finding here is to be applied more widely, since it is 86 Cf Case C–57/95 France v Commission [1997] ECR I–1640, paras 11 and 25. 87 Joined Cases 1 and 14/57, Usines à Tubes de la Sarre v High Authority [1957]

ECR 105, under point I. 88 See Schermers and Waelbroeck (1992), pp 168–69, and Hartley (1998), pp 342–43 on this. 89 Joined cases 8–11/66 Noordwijks Cement Accoord [1967] ECR 75. 90 Case 22/70 ERTA [1971] ECR 263, paras 97–99.

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understood that the Court regarded the proceedings in question as ‘measures of a special nature’ and not as one of the binding instruments of Article 249; in this way it could avoid being compelled to annul them for non-compliance with Article 253. The Court’s reasoning on this point can thus be said to have been induced very much by the facts of the case, in particular the fear that in the event of annulment of the proceedings, the negotiations would have to start all over again.91 To conclude, in the case of ‘redesignation’ of an act as one of the instruments mentioned in Article 253 (ie directive, regulation or decision), it is beyond doubt that the statement of reasons requirement, being an essential procedural requirement, must be complied with, under the possible penalty of annulment. When there is no such redesignation,92 it is less obvious whether this requirement applies, given the casuistic approach of the Court. I am, however, of the opinion that this must be considered to be the case. The argument for this point of view lies in the underlying aims of the statement of reasons requirement as set out in Article 253 and discussed above in Subsection 3.6.3.2; directives, regulations and decisions must contain a statement of reasons, in particular so that parties can know and defend their rights, the Court can exercise its function of judicial review, and the Member States and other interested parties can ascertain the circumstances in which the Treaty has been applied.93 Having regard to these purposes, it is only logical that this requirement should not only apply to acts having inherent legally binding force, but also serve for the establishment of incidental legally binding force of other (soft law) acts; if soft law acts are to have binding force just like instruments having inherent legally binding force, then the same requirements should be fulfilled. In fact, the requirement to explicitly identify the legal basis can be considered to form part of this statement of reasons requirement, as the said purposes can only be served if this identification has taken place.94 The Decision-Making Procedure Connected to the above matter is also the question whether a soft law act has to have been adopted in accordance with the decision-making procedure prescribed by its legal basis, before it can be held to be legally binding; or in other words, does the requirement of exercise of competence in accordance with the legal basis entail not only the obligation of the ‘right’ institution and instrument, but also the 91 Cf Hartley (1998), p 101. 92 It should be noted that ‘redesignation’

of an act as a decision is to a certain extent permitted by the Treaty, in its Article 230. The ‘redesignation’ of a (soft law) act as a directive or regulation has never occurred, as far as I have been able to establish. 93 Cf also Case 222/86 Heylens [1987] ECR 4097, para 16, in which the Court held that in view of its aims, the duty to state reasons is limited to final decisions and does not extend to opinions and other measures occurring in the preparation and investigation stage. See also Schermers and Waelbroeck (1992), p 205. 94 Cf Barents and Brinkhorst (2001), p 188.

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‘right’ adoption procedure? Although many Council recommendations are in fact adopted in accordance with the procedure prescribed by their legal basis, the answer to this question is not very clear. However, on the basis of the Court’s judgment in the Gauff Case, one might argue that the Court considers the procedure followed to be of at least some relevance. The Court thus considered that: In the absence of the exercise, upon the conclusion of an internal procedure laid down by law, of a power provided for by law which is intended to produce legal effects of such a nature as to affect adversely the interests of the applicant by modifying its legal position, the letter of 20 June 1980 may not be validly considered as a Decision within the meaning of the second paragraph of Article 173 of the EEC Treaty and accordingly cannot give rise to a review by means of the proceedings under that provision (emphasis added).95

The Court does not seem to have confirmed this (yet) or to have developed it further in subsequent case law. Yet, in view of what has just been observed in respect of the applicability of the statement of reasons requirement, it can be argued here as well that if the legal basis prescribes a decision-making procedure, this must be followed. Publication and Notification A final question concerns the issue of publication and notification. From the Court’s case law, one can draw the conclusion that publication and/or notification of an act is not a prerequisite for the establishment of binding force. The judgment in Case C–57/95 France v Commission once again provides a clear illustration of this point. The Commission argued that the communication at issue was not of a binding nature inter alia because it had been neither officially addressed to nor notified to the Member States. The Court did not accept this argument and considered only: ‘suffice it to say that that fact cannot alter the binding nature of the Communication’.96 Hence, the fact that an act has not been published or notified to its addressees does not stand in the way of the finding of legally binding force. As regards the publication requirement, this is not incomprehensible, given that until the TEU there was not even such a requirement for directives.97 Yet, the very fact that there is now a publication requirement for directives points in the direction of increased relevance of the publication requirement as such. I am therefore of the opinion that, in order to ensure legal certainty,98 the addressees should be informed in at 95 Case 182/80 Gauff [1982] ECR 799, para 18. 96 Case C–57/95 France v Commission [1997] ECR I–1640, para 22. Cf also Joined cases 8–11/66

Noordwijks Cement Accoord [1967] ECR 75, at p 91 for a similar reasoning. 97 See the former Article 191 EC. 98 See Subsection 3.6.3.4 on this principle.

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least some way, under possible penalty of annulment of the act.99 At the same time, however, the Court has held that irregularities in the process of notification do not affect the legal force of the act at issue, at least not leading to the conclusion of non-existence.100 Support for the point of view that procedural requirements as set out in this subsection also apply to (presumed) soft law acts if they are to have legally binding force, can be found in both legal writing and the case law of the CFI. Constantinesco thus concluded as early as 1977 that unspecified acts must fulfil all formal, substantive and procedural requirements before they can have binding force; this with a view to ensuring the legal certainty and legal protection of those concerned.101 The CFI has also held, in the BASF v Commission Case, that ‘all those rigorous formal requirements regarding the drawing up, adoption and authentication of measures’ should be complied with in order to guarantee the stability of the legal order and legal certainty for those subject to measures adopted by Community institutions. Such formalism is strictly necessary for the maintenance of a legal system based on the hierarchy of rules. It guarantees observance of the principles of legality, legal certainty and sound administration. Any infringement of those rules would create a system that was essentially precarious, in which the description of the persons subject to measures adopted by the institutions [and] the extent of their rights and obligations … could be known only approximately, thereby jeopardising the exercise of judicial review.102

In the Opel Austria Case, the CFI held that the principle of legal certainty requires that any measure of the institutions having legal effects must not only be clear and precise, but also be brought to the notice of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and starts to have legal effects.103 6.5.5.2 Can Binding Measures Be Laid Down in Any Instrument Whatsoever? Another obscurity concerns the condition that the adopting institution’s competence has to be exercised in conformity with the legal basis. It has 99 In legal writing it has thus also been argued that (true) soft law acts should be published as well. See eg Curtin (1996). See also Subsection 9.4.2.1 in this respect. 100 Case C–200/92 P ICI [1999] ECR I–4399. Kapteyn and VerLoren van Themaat (1995), p 209. 101 Constantinesco (1977), p 585. 102 Joined cases T–79/89, T–84–86/89, T–89/89, T–91–92/89, T–94/89, T–96/89, T–98/89, T–102/89 and T–104/89 BASF v Commission [1992] ECR II–315, para 76. On appeal, the Court held here again that non-compliance with the procedural requirements does not in fact lead to a finding of non-existence; Case C–137/92 P Commission v BASG [1994] ECR I–2555. See further Subsection 6.5.7.2 below. 103 Case T–115/94 Opel Austria [1997] ECR II–39, para 132.

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not (yet) become unequivocally clear what the Court’s position would be in a case where the legal basis does not prescribe the legal instrument in which measures must be laid down. It has already been established that many Treaty provisions (now) refrain from prescribing the legal instrument.104 On the one hand, it is clear that the Community institutions have a lot of freedom to choose the instrument they deem most appropriate if the legal basis does not prescribe the instrument;105 on the other, one might wonder whether this implies unlimited freedom of a Community institution to lay down binding measures in an instrument that has not been attributed legally binding force as such? At first sight, it might seem possible to interpret the Court’s reasoning in this way, but in my view that reading would go too far. Although I would not contest that also in this respect a certain freedom of choice is required, the Treaty or secondary law and also various general principles of law may put limits to this freedom. This will be further discussed in Section 8.3, dealing with the issue of when these principles may require the transposition of soft law into hard law acts. 6.5.6

The ‘Test’ Summarised

In summary, the following are the various touchstones — of a substantive and a procedural nature — of the ‘test’ developed by the Court in order to determine whether the act at issue is a ‘true’ — non-binding — soft law act or in fact an act having legally binding force. The first step concerns the establishment of the drafters’ intention; does the act aim at having legally binding force, given in particular its wording, terms and context? If not, then it is a true soft law act. If it does, the second step is to find out whether it involves legal effects that are already contained in the underlying (primary or secondary) Community law provision(s), or whether it involves new legal effects. If already existing legal effects are at issue, then it is a true soft law act. If new legal effects are at issue, then it constitutes a hard law act in the clothing of a soft law act. The third step is then to consider whether there is a legal basis for this act. If not, then it constitutes unlawful hard law. If there is, the fourth step concerns the examination of whether the exercise of competence is in conformity with the legal basis; in particular, is the legal basis explicitly identified, has the right instrument been chosen, and has the competent institution adopted the act? If not, the act constitutes unlawful hard law. 104 See Subsection 3.6.1.2. 105 Cf Joined cases 8–11/66

Noordwijks Cement Accoord [1967] ECR 75 and Case 5/73 Balkan [1973] ECR 1091, para 18. Van Ooik (1999), p 267. In Subsection 2.4.3 it was also seen that the instruments of Article 249 EC are not suitable for the adoption of certain (binding) Community measures, such as internal decisions, appointment decisions and the like.

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If the answer is yes, the final step consists in my view of considering whether the requirement of statement of reasons has been complied with, whether the possibly prescribed decision-making procedure has been followed, and whether publication and/or notification has taken place. If not, the act constitutes irregularly adopted hard law. If they have, the act constitutes lawful hard law.

6.5.7

Scope and Implications

The foregoing clearly leads one to ask about the precise implications of the conclusion that either lawful or unlawful hard law is to be found in the clothing of soft law. 6.5.7.1

Implications of Lawful Hard Law in the Clothing of Soft Law: Scope of the Legally Binding Force

It as yet remains rather obscure what the precise implications are of the finding that a soft law act does in fact comply with all the conditions of the Court’s test; or in other words, that the situation is one of lawful hard law in the clothing of soft law. What would be the scope of the legally binding force thus established? More particularly, would there be legally binding force erga omnes, which could be invoked directly before the national court by individuals, or only binding force for the addressees? This scope has been made clear only in those cases in which the Court has in fact compared the act at issue with the binding instruments of Article 249. This has been done in particular in cases concerning letters of the Commission, when the Court has examined whether or not these could be considered decisions in the sense of Article 173 (now 230) EC. The quotation in Subsection 6.5.5.1 from the judgment of the Court in the Gauff Case is a clear illustration of this. However, in many other cases the Court has not taken the Article 249 instruments as the frame of reference. Thus, in the ERTA Case the Court spoke only of ‘measures of a special nature’, whereas the Council had argued that the act in question was not comparable to a regulation, directive, or decision. Hence, where the Court has refrained from comparing an act with the instruments of Article 249 or where it has simply not been asked to rule on a certain act, the answer to this question will depend on the characteristics of the act at issue. In particular, consideration will have to be given to whether it is of general application or of an individual nature, whether it has purely internal or (also) external effects, and who its addressees are. As will be seen in Subsection 6.7.1, Council recommendations are most likely to fulfil the Court’s test, and one could argue that the scope of their legally binding force most resembles that of EC directives; for, generally

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speaking, these aim at enhancing cooperation between the Member States and sometimes at harmonisation of national law, and call upon the Member States to implement them. As a result, it can also be argued that Council recommendations that fulfil the Court’s test are capable of creating directly enforceable rights and obligations as against the Member State, naturally on the condition that their provisions are sufficiently clear and unconditional. The willingness of the Court in the Grimaldi Case to examine the question whether the Commission recommendations at issue in that case could create enforceable rights for individuals shows that such a conclusion is not unrealistic.106 If a Member State wishes to protect itself against such consequences, it should take greater care (or perhaps less!) in the Council as regards the drafting of acts of this kind. Applying this reasoning to the example of Council Recommendation 98/376/EC on a parking card for people with disabilities,107 it would then be possible for a handicapped person to invoke the recommendation directly before the national court, against a Member State which had failed to ensure the introduction of the card by the time the deadline passed.108

6.5.7.2

Implications of Unlawful Hard Law in the Clothing of Soft Law: Annulment or Non-Existence?

If a soft law act entails only legal effects that are already somehow contained in the Community law provision(s) to which it relates, the binding force then in fact ensues from these underlying provision(s) and not from the soft law act as such.109 However, one might wonder what the precise implications are of a finding that an act does aim at creating new legal effects, without fulfilling the other conditions. That is, in a situation where one can speak of unlawful or irregular hard law in the clothing of soft law. Is annulment thereof always required, or is there in any case no requirement to apply or comply with such unlawful acts? More to the point, can they be considered to be void or non-existent acts or are they only voidable acts? Under Community law, the general rule is that unlawful acts are not void in themselves, but only voidable. That is to say, Community legal acts are presumed to be valid, unless or until being withdrawn or declared void after an assessment by the Court and a finding that indeed the action for annulment is admissible and well founded.110 Such an action has to be 106 To some extent, this case also shows another parallel as regards the issue of (consistent) interpretation. See Chapter 9 on this. 107 See also below Subsection 6.7.1 below as regards its possible legally binding force. 108 Functioning in fact as a disguised directive. 109 See also Snyder (1993), p 35, and Meier (1990), pp 1308–9. 110 Cf Hartley (1998), p 341. Joined cases 7/56 and 3–7/57 Algera v Common Assembly [1957 and 1958] ECR 39, at 61.

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brought within the time limit of two months after the publication of the act or its notification to the plaintiff or, in the absence thereof, after the day on which it came to the knowledge of the latter. If this time limit has passed, the validity of the act has become more or less final.111 Then, it may only, under certain conditions,112 be subject to indirect challenge by virtue of Article 234 EC first subparagraph under b (validity question in the framework of the preliminary procedure) and Article 241 EC (the plea of illegality).113 It also follows from the foregoing that by virtue of Article 288 EC the Community institutions must be considered liable for any damages caused by the adoption of hard law acts in the clothing of soft law.114 There is only one exception to this general rule, and that concerns nonexistent acts. An act that can be designated as such will be void in itself and considered to have never existed. For that simple reason, it would not even be possible to bring annulment proceedings against it115 and, logically, it would not have to be applied by its addressees. Yet, the question is of course when one can speak of a non-existent act. It appears that the Community courts have established the ‘existence of non-existent acts’ in only a very small number of cases.116 The judgment in the Usines à Tubes de la Sarre Case is one of these, but as already observed above, this judgment is rather exceptional. The judgments of the CFI and the ECJ in the Commission v BASF Case are now seen as the leading ones in this respect.117 In particular, the ECJ held that: The adoption of an administrative measure creates a presumption as to its validity. That validity can be set aside only by means of annulment or withdrawal, in so far as those measures are permissible.

The core point in the Court’s view is then that there must be ‘obvious gravity’ of the irregularities found in order to conclude that a decision is legally 111 Schermers and Waelbroeck (1992), p 467. Cf also Case 226/87 Commission v Greece [1988] ECR 3611 and Case C–241/01 National Farmers’ Union [2002] ECR I–9079 which make clear that Member States cannot plead the illegality of a Community act in Article 226 proceedings in order to resist a finding of the Court that Community law obligations have been infringed. See also Craig and de Búrca (2002), pp 427–28. 112 Cf Case C–188/92 Textilwerke Deggendorf [1994] ECR I–833, which made clear that, if possible, a plaintiff must make use of the procedure provided for by Article 230 EC and if the plaintiff has failed to do so, the national court must assume that the Community act in question is valid. See on the scope of this case law Jans et al (2002), pp 313–14. 113 See Hartley (1998), pp 400–10. 114 Cf also Hartley (1998), pp 451–52. 115 Cf Hartley (1998), p 409. 116 Cf the early (in the framework of the ECSC Treaty) Joined cases 53 and 54/63 LemmerzWerke [1963] ECR 239, in which the Court held that a measure that fails to comply with some inessential requirement of form can still be considered a decision. See also van Empel (1971), pp 251–83, and Schermers and Waelbroeck (1992), pp 165–70. 117 Joined cases T–79/89, T–84-86/89, T–89/89, T–91–92/89, T–94/89, T–96/89, T–98/89, T–102/89 and T–104/89 BASF v Commission [1992] ECR II–315 and the appeal judgment in

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non-existent. Interestingly, it is for reasons of legal certainty that the Court has reserved a finding of non-existence for quite extreme situations. In particular, the purpose of making legal non-existence an exception is to maintain a balance between two fundamental, but sometimes conflicting requirements with which a legal order must comply, namely stability of legal relations and respect for legality.118

Furthermore, it has already been seen in the preceding sections that the Court has annulled acts that did not fulfil the conditions of its test, as it would in the case of an unlawful decision, directive or regulation, instead of declaring them non-existent. Thus, the conclusion to be drawn here is that even an unlawful or irregular Community (soft law) act is presumed to have the intended legal effects unless it is withdrawn or annulled.119 If a Member State does not wish to be confronted with the consequences of having to implement and comply with such an act, it should be sure to bring an action for annulment if it suspects that the Community institution is trying to impose new legal obligations thereby.120 6.6

6.6.1

‘INCIDENTAL’ LEGALLY BINDING FORCE ON THE BASIS OF AGREEMENT (II)

Introduction

According to Article 281 EC, the EC has legal personality. As ensues from Article 282 EC, this entails that the Community enjoys the capacity to establish contractual links with third parties under national law as regards, for instance, the purchase of property and the employment of personnel. In public international law, it entails that the Community has the capacity to establish in its external relations contractual links with third countries (see Article 300 EC). 121 The question is then Case C–137/92 P Commission v BASF [1994] I–2555. See the opinion of A-G van Gerven for a discussion of the theory of non-existent acts in Community law, in particular points 73–79 and the case law mentioned in footnote 168 thereof. The Court also based this theory on the restrictive way in which the national legal orders deal with non-existence of legal acts. See on this also the opinion of A-G Mischo in Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, under B, and Annacker (1995), p 755. 118 Case

C–137/92 P Commission v BASF [1994] I–2555, paras 49–52 in particular. Cf also Case T–156/89 Valverde Mordt [1991] II–407, paras 84–85. 119 Cf also in this sense A-G Mischo in Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005, under B. 120 Cf also in this sense van der Woude (1993), p 526. See also Subsection 9.4.1.3. 121 See Kapteyn and VerLoren van Themaat (1995), p 60, and on the latter dimension of legal personality, Case 22/70 ERTA [1971] ECR 263, paras 13–14. Cf also Bleckmann (1981), p 889.

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whether the Community institutions may also use this legal personality to enter into binding agreements with the Member States or other parties, with a view to shaping Community law and policy; for in Community practice such agreements — or bilateral or multilateral acts as they can also be termed when adopted by two or more parties — are indeed adopted. In a few instances, the Court has dealt with the issue of whether such acts can be considered legally binding because of the underlying agreement between the adopting institution and the addressees of the act. In some of these, concerning state aid codes, the Court established that this was indeed the case. Did the Court conclude this on the sole basis of the mutual agreement between the parties concerned, or did other factors play a role in this determination? In this respect, it would be interesting to see whether the Court’s case law does indeed allow for a reversal of the presumption that ‘agreements are not legally binding, unless the opposite can clearly be shown’, as Klabbers has argued.122 With a view to finding an answer to this, it should first be emphasised that it already follows from Subsection 6.5.1 that the Court also applies the ‘test’ summarised above to bilateral or multilateral acts; at stake in the Schlüter Case was the mixed EMU resolution, adopted by both the Council and the Member States, and in respect of this the Court concluded that there was no intended binding force.123 This in itself forces the conclusion that, as such, acceptance of an act by its addressees or mutual agreement does not suffice to establish legally binding force.124 Next, it follows from the Court’s case law that the binding force of bilateral or multilateral acts due to the underlying agreement may be recognised in only two situations. These are firstly, when the possibility of adopting such acts has been explicitly provided for in Community law provisions and secondly, when Community law has established a specific duty of cooperation between the Community institution and the Member State(s).125 These two possibilities will now be discussed in turn. 122 Klabbers

(1994), pp 1019–22. I consider that in his reasoning to support this point of view, Klabbers fails to distinguish between the two approaches of the Court, ie the one based on substance and intention and the one based on agreement. 123 Case 9/73 Schlüter [1973] ECR 1135. See also Subsection 6.5.2 above on this case. 124 See also Case C–4/96 NIFPO [1998] ECR I–681, in which the Court held that Annex VII of the Hague Resolution only expressed the political will of the Council, whereas in the ‘Hague Resolution Cases’, its Annex VI was considered to be binding. At the same time, it was established that the Member States had formally approved the Hague Resolution. See further Subsection 8.5.3.3 on these cases. 125 The latter could possibly also be considered an indirect legal effect, as the binding effect is triggered not only by the nature of the act itself, but also by the operation of another legal principle, that is the duty of cooperation. I do not consider it as such because what is at issue here is the ‘agreed’ nature of the act, in conjunction with a legal basis in the Treaty providing for a specific duty of cooperation.

272 6.6.2

Legal Issues of Community Soft Law Explicit Provision for ‘Agreed Acts’ in Primary or Secondary EC Law

This first possibility has only been established indirectly, in two of the ‘French annulment’ cases against Commission soft law acts already discussed in Section 6.5: Cases C–303/90 and C–325/91. In both cases, the Court first applied the test as set out in that Section, which led to the outcome of annulment of the acts in question. However, in its final considerations the Court addressed the argument put forward by the Commission, that the acts had been established in conjunction with the Member States. The way in which the Court and also AdvocateGeneral Tesauro dealt with this argument is quite revealing. In Case C–303/90, the Commission had argued several times that as the code of conduct was adopted by consensus, it was a new kind of act, which it defined as a ‘gentleman’s agreement’. According to AdvocateGeneral Tesauro: Such a construction does not appear acceptable, nor such as to alter the legal situation, without it being necessary to ascertain whether in fact the measure in question was a negotiated measure. In failing to observe any provisions that such a measure may contain, Member States could at most assume political responsibility for such failure without for that reason being considered in breach of their obligations arising under Community rules in the field in question. Moreover, and above all, such a measure would be alien to the system guaranteed by the Treaty, given that the adoption of normative acts agreed between the Commission and the Member States or agreements of any kind among the same parties, even in particularly simplified form, is entirely alien to the system. I do not believe that this singular and contradictory position adopted by the Commission deserves further comment.126

Two elements are of importance in this reasoning: firstly, non-compliance with a ‘negotiated act’ does not amount to failure to fulfil Community law obligations, and secondly, such acts are not provided for by, and are even alien to the Community law system. The Court did not go into such detail, but focussed in particular on the second element.127 Only to a certain extent can the Court be said to have agreed with the view of the AdvocateGeneral in this respect, by not entirely excluding the possibility that Community law might provide for such an act. According to the Court, it is sufficient to note, without there being any need to examine whether the disputed measure actually constitutes a negotiated act, that the possibility

126 Case C–303/90 France v Commission [1991] ECR I–5315, point 23. 127 It appears from the ‘Hague Resolution Cases’, however, that the

Court considered it possible to hold a Member State liable for not complying with a Council resolution; see Subsection 8.5.3.3 on this.

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of adopting such an act is not provided for by Article 23(1) of Regulation No 4253/88 and that the measure in question cannot therefore have the effect of altering the legal position of Member States under that provision.

The Court confirmed this view in Case C–325/91, concerning the Commission Communication to the Member States on Application of Articles 92 and 93 EC and of Article 5 of Commission Directive 80/723 to public undertakings in the manufacturing sector. According to the Commission, the communication constituted an act negotiated between itself and the French Government. But again, the Court held that it is sufficient to state that the possibility of adopting such an act is not provided for by Article 5(2) of the Directive, and it is not necessary to consider whether the act in question does in fact constitute a negotiated act.128

Thus, even though the Treaty does not provide for the agreement or any other form of ‘agreed’ or ‘negotiated’ act as a legal instrument to shape Community law and policy, the Court has not gone so far as to exclude the possibility of the lawful adoption of such acts under Community law. The Court has therefore taken a position between two extremes; it has not totally rejected the possibility of binding ‘negotiated’ acts, nor has it accepted the unlimited use of such instruments. In his opinion in Case C–325/91, Advocate-General Tesauro succinctly summarised the Court’s position as follows: [T]he fact that an act may have been adopted by mutual agreement is not capable of altering the legal position of the Member States, unless the possibility of adopting such a ‘negotiated’ act was expressly provided for by a Community provision. (point 9)

In other words, the condition for legally binding force of such ‘negotiated’ acts is that there is a legal basis for the adoption thereof in a specific Community law provision.

6.6.3

Existence of a Specific Duty of Cooperation

It next ensues from a number of Court judgments that in the area of state aid there is actually a legal basis for the recognition of binding ‘negotiated’ acts, which is linked to a specific duty of cooperation.

128 Case

C–325/91 France v Commission [1993] ECR 3283, para 28.

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In the first Case, CIRFS v Commission, the Court had to consider the question of legal effect of the state aid code on synthetic fibres.129 CIRFS and others had brought an application for annulment of the Commission Decision of 1 August 1990, in which it considered that there was no obligation for prior notification of the aid granted to Allied Signal by the French Government for setting up a unit for the manufacture of industrial fibres. The annulment was also sought of a letter of Sir Leon Brittan, Vice-President of the Commission, confirming this decision. According to CIRFS, these were contrary to the state aid code on synthetic fibres. This code had actually been sent to the Member States by a Commission letter in 1977 and ‘It is common ground that the Member States agreed to the “discipline” set out in that letter.’ 130 Pursuant to a memorandum sent by the Commission to the Member States in 1978, the code should be understood as covering fibres for both ‘textile or industrial use’. The Member States did not contest this explanation and ever since then, the discipline was extended every two years. According to the last version of the discipline, the Commission would continue to take an unfavourable opinion with regard to state aid that would lead to an increase in the production capacity of companies in the synthetic fibres sector. CIRFS maintained that the aid at issue fell within the scope of the discipline and should therefore have been notified. The Commission argued that since the decision to award the grant had been communicated to the undertaking ‘before the discipline relating to synthetic fibres was last broadened’, there was no obligation for prior notification.131 Sir Leon Brittan considered that up to 1989 the discipline had been interpreted in a narrow sense, that is only applying to the textile sector.

The French Government and Allied Signal argued that an undertaking, which is a third party, cannot contest the interpretation that the Commission and the Member States have given to the wording of a ‘discipline’ and that the main addressees thereof are the Member States. Moreover, they held that following the Court’s judgment in Deufil such a discipline should be considered to constitute no more than guidelines which merely set out the course of conduct which the Commission intends to follow, after the Member States have given their assent to the terms and scope of its communications. Thus, what was challenged was in fact not only that the discipline could have any external binding force (that is, in relation to third parties), but also that it had binding force inter partes.

129 Case C–313/90 130 Para 3. 131 Para 9.

CIRFS [1993] I–1125. See also Hancher and Slot (1995), p 307.

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The Court rejected these arguments and accepted in effect that the aid code in question had both binding force inter partes and external binding force, by holding that: In the first place, this case has to be distinguished from the Deufil case. That case was essentially concerned with the question whether the discipline at issue could embody a derogation from the rules of the Treaty, whereas the question arising in this case is whether such a discipline is capable of having binding effects. Consequently, the Court’s reasoning in Deufil cannot be transposed to this case. [para 34] Secondly, in this case the rules set out in the discipline and accepted by the Member States themselves have the effect, inter alia, of withdrawing from certain aid falling within its scope the authorization previously granted and hence of classifying it as new aid and subjecting it to the obligation of prior notification. [para 35] It follows that the fact that the discipline is the outcome of an agreement between the Member States and the Commission cannot alter the objective significance of its terms or its binding effect. (para 36 — emphasis added)

Yet, the Court gave reasons for its conclusion of binding force only very summarily, without throwing any clear light on the basis therefor. Apparently, the Court deemed France’s acceptance of the state aid code to be sufficient as an expression of its intention to be bound by it. If, however, we were to accept the idea that agreement with or acceptance of an act by the Member States is sufficient to establish the existence of binding force, both inter partes and external, then we would have to acknowledge the binding force of many other acts adopted by the Community institutions in conjunction with the Member States in some way. Such a conclusion would obviously be too far-reaching and not be consistent with other case law of the Court, as already discussed in Subsections 6.6.1 and 6.6.2. Consequently, there must be yet another reason why the Court has recognised the binding force of the discipline at issue. In this respect, it is worthwhile to look at the opinion of AdvocateGeneral Lenz, who dwelt upon this question at much greater length. He considered first that: It is plain, however, that the communications in which the Commission sets out its future policy are not as such binding legal measures. In view of the power conferred on the Commission by Article 93(2), which is confined to taking decisions, the Commission could not adopt a measure setting out the principles of the ‘discipline’ as binding provisions of general scope.

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Besides, the fact that the ‘discipline’ does not comply with the formal legal requirements and that the Member States are asked to agree to it shows that that is not even the intention.132

In fact, this reasoning boils down to an application of the test as summarised in Subsection 6.5.6 for the recognition of legally binding force of Community acts. According to the A-G, a unilateral declaration of the Commission with regard to its future policy on aid in a particular sector cannot have binding force, for lack of compliance with the general conditions for this. However, he did not stop at that conclusion, but also wondered whether this implied that the contents of the discipline could never be taken into account in connection with Article 7 of Decision 85/18. This decision declared the French regional planning grant scheme compatible with the common market, but according to Article 7 thereof ‘without prejudice to compliance with present or future special rules on aid to particular industries’. The A-G wondered whether the aid to Allied Signal, although coming under this lawful regional aid scheme, could not be put to the test of the discipline as laying down such special rules. In this respect, it is important to note that aid falling within the scope of the discipline would be considered as new aid and therefore become subject to notification. According to the Advocate-General, this cannot be the legal position unless the Member State concerned has agreed to the ‘discipline’. In other words, the (partial) renunciation requested by the Commission of the advantages resulting from decisions finding national aid systems compatible with the common market must have actually taken place by the Member State giving its agreement, whether the renunciation is to be construed as a unilaterally effective measure or as part of an agreement with the Commission. Otherwise, the ‘discipline’ would remain non-binding … . [point 42]

So, obviously the A-G connected the recognition of binding force not only to the acceptance by the Member States, but also to the existence of a legal basis in secondary legislation. Next, the Court’s judgment in the IJssel-Vliet Case133 provided some elucidation as to how the CIRFS case law should be understood. The IJssel-Vliet Case raised questions on the application of Regulation (EEC) 4028/86 on Community measures to improve and adapt structures in the fisheries and aquaculture sector, of Council Directive 87/167 on aid to shipbuilding, and of the Guidelines for the Examination of State Aids in 132 Point 30. See also point 31. 133 Case C–311/94 IJssel-Vliet [1996]

ECR I–5023.

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the Fisheries Sector, which sought to coordinate the regulation and the directive. The Commission had adopted these guidelines ‘in order to inform the Member States how it intends to exercise, under Articles 92 and 93 of the Treaty, its power of assessment with regard to new aid.’ The guidelines made clear that state aids in the fisheries sector may be granted only if they are consistent with the objectives of the common policy in this sector and that the Commission would not authorise national aids for the construction of fishing vessels intended for the Community fleet. Pursuant to Article 93(1) (now 88(1)) of the EC Treaty, the Commission proposed to the Member States by letter that they apply these criteria to their existing aid schemes. By letter as well, the Dutch Government confirmed that the aids in the fisheries sector were in conformity with the guidelines.134 Furthermore, by Decision 88/123/EEC the Commission approved the Dutch multiannual guidance programme for the fishing fleet and by letter of 29 March 1988 it approved the Dutch aid scheme for the new construction of ocean-going vessels. The Commission, to the extent that aid to the fisheries sector complied with the guidelines, later approved some amendments to this scheme. The Dutch company IJssel-Vliet had started proceedings against the Dutch Minister for Economic Affairs, because the latter had refused its application for a subsidy for the construction of a fishing vessel. The Minister did so because the aid applied for did not comply with the programme for the fishing fleet. IJssel-Vliet appealed against that decision to the Council of State, relying on the above directive.

The Dutch Council of State referred two questions to the ECJ, the first concerning the competence of the Commission to adopt guidelines,135 and the second concerning the legal effect of these. It asked in particular whether the Member States are obliged to apply these guidelines as basic principles when deciding on an application for aid for the building of a vessel intended for fishing and, if so, what the basis would be for that obligation. In response to this second question, the Court concluded that indeed the guidelines do have binding force and must be applied by the Member States. It reached this conclusion on a dual basis: firstly, the acceptance by the Dutch government of the rules laid down in the guidelines, and secondly, Article 93(1) (now 88(1)) of the EC Treaty, establishing an obligation of cooperation between the Commission and the Member States. In particular, the Court held that: Article 93(1) of the Treaty provides that the Commission, in cooperation with the Member States, is to keep under constant review the systems of aid existing in those States. It is to propose to them any appropriate measures required 134 Paras 13 and 14. 135 See Subsection 7.3.4

on this aspect of the judgment.

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by the progressive development or by the functioning of the common market. That provision thus involves an obligation of regular, periodic cooperation on the part of the Commission and the Member States, from which neither the Commission nor a Member State can release itself for an indefinite period depending on the unilateral will of either of them.136

As the guidelines are based on Article 93(1) of the Treaty, the Court considered them to be one element of that obligation of regular, periodic cooperation. In this respect, it also emphasised the way in which that cooperation had taken shape between the Commission and the Dutch government; the guidelines are an updating of previous guidelines, the Member States have been consulted on the draft guidelines, the Commission has taken account of their observations and the spirit of cooperation has been maintained throughout the existence of the guidelines, inter alia by way of a declaration of the Dutch government that aids granted to the fisheries sector were in conformity with the guidelines.137 Furthermore, the Court referred to the CIRFS judgment, in which it recognised ‘that a ‘discipline’ of the same legal nature as the Guidelines, whose rules were accepted by the Member States, was binding’. It then considered that the Dutch government had accepted the rules laid down in the guidelines, by putting the amendments to the national aid scheme into effect for as far as the Commission had deemed these compatible with the guidelines. Consequently, in accordance with the CIRFS judgment, it considered the guidelines to be binding on the Netherlands. In short, the Court’s conclusion was that: Thus, as a result of the obligation of cooperation laid down by Article 93(1) of the Treaty and of its acceptance of the rules laid down in the Guidelines, a Member State … must apply the Guidelines when deciding on an application for aid for the construction of a vessel intended for fishing.138

To summarise, the reasoning of the Court in this case makes very clear that acceptance alone is not sufficient. Although in the CIRFS Case the Court did not as such consider the existence of a legal basis to be a relevant element in determining whether the discipline at issue there had binding force, in my view this element is somehow implied in the Court’s judgment. In any case, it is clear that Article 93(1) played some role during the proceedings, as the Commission referred to it at the oral hearing, and the Advocate-General also mentioned it briefly.139 Furthermore, the 136 Para 36. 137 Paras 38–41. 138 Paras 36–44. 139 See footnote

13 of the opinion and footnote 51 of Hancher and Slot (1995). Jestaedt and Häsemeyer (1995), pp 787–92, also take the view that the binding force in CIRFS was based on both Article 93(1) and the agreement of the Member State.

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Court’s references to the CIRFS judgment in the IJssel-Vliet judgment seem to confirm this view, as well as other case law.140 Article 93(1) (now 88(1)) EC does not explicitly provide for the adoption of binding ‘negotiated’ acts, but rather for the task of the Commission, in cooperation with the Member States, to keep existing aid systems under constant review and to propose to the Member States ‘any appropriate measures’ in this respect. Apparently, the Court is of the opinion that aid codes, disciplines and the like which the Commission adopts on the basis of this provision constitute such ‘appropriate measures’. Although the area of state aid is by its very nature an area that requires close cooperation between the Commission, which has to monitor the application of the state aid rules, and the Member States, which are the addressees of these rules, it should be observed that not all the administrative rules adopted in this area by the Commission and agreed by the Member States can be considered to be binding as a result of that. The judgment in Case C-325/91 already made this clear. In particular, these rules must have been adopted on the basis of Article 93(1), providing for a specific duty of cooperation between the Commission and the Member States.141 At the same time, it must also be observed that the Member States are not obliged to accept or agree with the measures proposed in the framework of this specific cooperation. Only if they choose to do so, are they bound by them. This already follows from the above case law, but has also been upheld in recent case law of the Court of First Instance. In the Freistaat Sachsen and Volkswagen v Commission Case,142 it thus emphasised that the rules of the Community framework on aid to the motor vehicle industry, as ‘appropriate measures’ proposed by the Commission to the Member States on the basis of Article 93(1) of the Treaty, are entirely devoid of binding force and bind Member States only if the latter have consented to them … .143

Yet, it should also be observed that if Member States do not accept them, they will usually be confronted with a decision adopted on the basis of 140 In particular Case C–135/93 Spain v Commission ECR [1995] I–1651. Cf also Schütterle (1995), p 391, Della Cananea (1993) and Rawlinson (1993). 141 In Subsection 8.5.3.3 it will be seen that the existence of a specific duty of cooperation may even entail a duty of the Member States to comply with Community (soft law) acts to which they have not agreed. 142 Joined cases T–132/96 and T–143/96 Freistaat Sachsen and Volkswagen v Commission [1999] ECR II–3663. 143 Para 209. In this respect, the Court also referred to Case C–292/95 Spain v Commission [1997] ECR I–1931, paras 30–33.

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(now) Article 88(2), in which the Commission will then apply the discipline or guidelines to the concrete case.144

6.6.4

Scope of the Legally Binding Force

It thus appears that the recognition of legally binding force of ‘agreed’ Community acts is possible, if primary or secondary Community law provides a legal basis either for the adoption of such acts or for a specific duty of cooperation. In the latter case, ‘agreed’ acts can be seen as an expression of this cooperation. In view of these conditions, I do not think it possible to conclude that there is a reversal of the presumption that ‘agreements are not legally binding, unless the opposite can clearly be shown’, but rather a refinement thereof: agreements are not legally binding, unless primary or secondary Community law provides a legal foundation for this. When it comes to determining the scope of the legally binding force of Community acts thus established on the basis of their underlying agreement, the question that comes particularly to the fore is whether one can speak of merely ‘contractual’ binding force or of a more general binding force. Or in other words, is there only binding force inter partes or also erga omnes? In the case of primary or secondary Community law providing for the possibility of adopting legally binding ‘agreed’ or ‘negotiated’ acts, the scope thereof will depend to some extent on what this law stipulates in this regard.145 Further, even if in principle there is only binding force inter partes, the legal position of third parties will at least be affected de facto. This is also true in the case of ‘agreed’ acts having binding force as a result of a specific duty of cooperation. The scope of the binding force of ‘agreed’ acts adopted in the area of state aid can thus be said to be fairly wide. The Court has clearly considered them to be binding not only upon the Commission but also upon the Member States. As they are the expression of a duty of cooperation that 144 See

Commission Decision of 21 February (1990) amending German aid schemes for the motor vehicle industry, OJ 1990, L 188/55. In the Joined cases T–132/96 and T–143/96 Freistaat Sachsen and Volkswagen v Commission [1999] ECR II–3663, para 209 the CFI held in this respect that there is nothing to prevent the Commission from examining the aid which must be notified to it in the light of those rules [rules of the Community framework-LS] when exercising the wide discretion which it enjoys for the purposes of applying Articles 92 and 93 of the Treaty. Cf also Adam (1999), p 139. See also Subsection 10.5.1. 145 See also Subsection 6.7.2 below regarding inter-institutional agreements.

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exists only between the Commission and the Member States, one could argue that their binding force should be limited to these parties. However, given the consequences they may have for third parties, the latter must also be considered to be allowed to invoke or rely on them. Thus, in the CIRFS Case the Court considered the discipline at issue to be a binding act of general application, which the Commission could not regard itself as having implicitly amended by way of an individual decision that deviated from the discipline.146 As the Court considered further that the aid to Allied Signal fell within the scope of the discipline, it concluded that the aid should have been notified, and annulled the Commission decision. This in itself indicates that the discipline has to be complied with not only by the Commission, but also by the Member State providing the aid. From the judgment of the Court in Case C–135/93 Spain v Commission, it can also be seen that such a discipline or framework cannot unilaterally be amended or extended for an indefinite period by either the Commission or a Member State.147 Moreover, if it has been accepted by the Member States, then not only is there a duty of application, but there must also be considered to be a duty of transposition or adaptation of national legislation in order to conform to the guidelines. In fact, in the IJssel-Vliet Case this adaptation or transposition was considered to be proof of the acceptance of the Commission guidelines. Furthermore, the judgment in the IJssel-Vliet Case made very clear that not only Member States themselves, but also third parties are confronted with the effects of the binding force of the guidelines in question. Since the Dutch government is considered to be under an obligation to apply the guidelines, IJssel-Vliet cannot argue that the guidelines are not binding, and consequently its request for aid is not granted. The same will apply to applications for refund; an aid recipient cannot defend itself with the argument that a Member State is not bound by guidelines with which it has agreed and which are based on (now) Article 88(1) or possibly another legal basis. In short, third parties can also clearly argue on the basis of such a discipline or similar act that aid should or should not be granted. This does not alter the fact that a concerned undertaking — an aid recipient or one of its competitors — can challenge the lawfulness of its contents or legal foundation.148 Yet, in my view this duty of application may also entail that aid must be granted on the basis of guidelines, and necessarily that a third party/company can rely on these guidelines to have them enforced.149 This judgment also necessarily entails that 146 Case C–313/90 CIRFS [1993] I–1125, para 44. 147 Case C–135/93 Spain v Commission [1995] ECR 148 Senden and Hancher (2000), p 98. 149 See also Sections 10.5 and 10.6.

I–1651, para 24.

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national courts have to apply and enforce frameworks or other acts thus adopted.

6.7

6.7.1

AN ASSESSMENT OF THE COURT’S APPROACH

Prospects for Legally Binding ‘Soft Law’ on the Basis of the Court’s Test (I)

Up to now, the establishment of ‘incidental’ legally binding force of a Community (soft law) act on the basis of the Court’s test, summarised in Subsection 6.5.6, has appeared to be a rather theoretical possibility in the Court’s case law. That is to say, in the cases before it the Court has hardly ever concluded that the conditions of this test have all been fulfilled.150 To a certain extent, this can be explained by the fact that, taken overall, there has not been very much litigation in this respect. Moreover, several of the cases were brought precisely because the competence of the Commission to adopt the acts in question was contested. Most importantly, however, the rigour of the test in general can be said to be the reason, because in fact the same conditions have to be fulfilled as in the case of the ‘inherent’ legally binding instruments of Article 249 EC. That is not to say, however, that Community soft law acts may never fulfil these conditions. With respect to this, it is worthwhile to recall here some aspects of the examination made in Part II of the characteristics of the most common soft law instruments adopted by the Council and the Commission. On the basis thereof, it must be acknowledged that very few Commission soft law acts would actually survive the Court’s test. Thus, generally speaking, the preparatory and informative acts of the Commission do not aim at having legal effects. As regards interpretative acts, it was seen that these do not aim at having new legal effects, and that it is the underlying act or provision that is binding.151 But even if Commission soft law acts pass steps one to three of the above test, they will not often pass steps four (exercise of competence in conformity with the legal basis) and five (statement of reasons, procedure, publication/notification). A major reason for this is that many Treaty provisions declare only the Council competent to adopt binding measures. Consequently, it is hardly surprising that many Commission soft law acts refrain from indicating a specific legal basis. At best, they contain a reference to Article 155 (now 211) EC, which the Court does not accept

150 Case 22/70 ERTA [1971] ECR 263 151 Cf also eg Klösters (1994), p 39.

seems to be the only example.

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as a valid legal basis for legally binding acts.152 This is true at least for Commission recommendations. As regards the areas in which the Commission adopts interpretative and decisional rules, it is also often the Council that is declared competent to adopt implementing legislation, and the choice of the legal instrument(s) is often prescribed.153 In short, the competence of the Commission will often be confined to the adoption of true, non-binding soft law acts.154 The prospects for legally binding force of Council soft law acts on the basis of the Court’s test are in fact considerably higher. This is connected not only with the fact that, as mentioned above, the Council has more law making competences, but also with the way in which it makes use of these. For it has emerged that the Council is not particularly ‘sloppy’ in the adoption of soft law acts. As regards its recommendations in particular, it is no exaggeration to say that the Council behaves in the same way as in the case of adopting legislation and decisions. It was thus established that these recommendations may be of an imperative wording, may contain provisions for their implementation, may identify a legal basis, are often adopted in accordance with the adoption procedure prescribed by the legal basis and are published in the Lseries of the Official Journal. Hence, if the chosen legal basis does not prescribe the legal instrument, Council recommendations will actually stand a good chance of fulfilling the separate conditions of the Court’s test. Council Recommendation 98/376/EC on a parking card for people with disabilities provides an illustration of this. This recommendation is quite mandatory in nature, as it aims at the introduction of a parking card on the basis of the standardised Community model described in its Annex. Furthermore, it provides that the Member States should take the necessary steps to ensure that the card is available by 1.1.2000. The recommendation was adopted on the basis of (ex) Article 75(1) and it can be argued that it entails new legal effects, not already inherent to this Treaty provision. The competence was exercised in conformity with the legal basis, it would seem: the legal instrument(s) is/are not prescribed, it is the Council that has been declared competent, and the Council followed the cooperation procedure prescribed by the legal basis. Moreover, the recommendation was published in the L-series of the Official Journal.155

152 Cf

Case C–303/90 France v Commission [1991] ECR I–5315, para 30, discussed in more detail in Subsection 7.3.1.1. 153 This has already been seen above in Case C–325/91 France v Commission [1993] ECR I–3283. With a view to giving effect to the principles laid down in Articles 81 and 82 EC on competition law, Article 83 EC provides for the adoption of regulations and directives by the Council only. 154 See the next chapter on this. 155 OJ 1998, L 167/25.

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It is unfortunate that no such Council recommendations have as yet been put to the test, and that the Court has not yet had to conclude that all the conditions that it has formulated have been fulfilled. This state of affairs also helps to explain why we are still left with some obscurities as regards the Court’s test, as described in Subsection 6.6.4. To conclude, it must also be recalled here that in Subsection 6.5.7.2, it was established that unlawful hard law in the clothing of a soft law instrument must be presumed valid, unless withdrawn by the adopting institution or annulled by the Court of Justice. This leads further to the conclusion that as long as this has not occurred, the act is in fact legally binding.

6.7.2

Prospects for Legally Binding Agreements (II): The Case of Inter-Institutional Agreements

Besides the possibility of secondary Community law providing for the adoption of legally binding ‘agreed’ acts, primary Community law does not seem to make much explicit provision for this, apart from the possibility of entering into binding international agreements pursuant to Article 300 EC. Furthermore, few EC provisions can be said to express or provide for a specific duty of cooperation. The area of state aid appears rather exceptional in this regard, since the Community and the Member States have a shared competence to enforce the legally binding state aid rules, which cannot be exercised satisfactorily without good cooperation. Although in many other areas the Member States are also to act in close cooperation with the Community, these provisions are often of a less compelling nature, sometimes even excluding any binding arrangements. So, overall, the prospects for shaping substantive Community law through the conclusion of legally binding agreements on the basis of the EC Treaty providing for this, or for a specific duty of cooperation, seem fairly limited. However, one other area in which such a specific duty of cooperation can be said to exist is the sphere of external relations. This was made clear by the Court in for instance the Commission v Council Case,156 in which it stated that where the subject-matter of an agreement falls partly within the competence of the Community and partly within that of its Member States, ‘the Community institutions and the Member States must take all necessary steps to ensure the best possible cooperation in that regard’. Furthermore, according to the Court, section 2.3 of the Arrangement concluded between the Council and the Commission regarding preparation

156 Case

C–25/94 Commission v Council [1996] ECR I–1469, paras 48–50.

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for FAO meetings, statements and voting, ‘represents fulfilment of that duty of cooperation between the Community and its Member States within the FAO.’ This also brings us to another area in which one can speak of a specific duty of cooperation, ie that of inter-institutional cooperation. As seen in Subsection 5.5.4, this cooperation is given shape in particular through the conclusion of inter-institutional agreements. In fact, the conclusion that these kinds of agreements have legally binding force can also be reached by following the Court’s test (I), looking at their substance and in particular the intention of the institutions. In the aforementioned case, the Court showed this by holding that: It is clear, moreover, from the terms of the Arrangement, that the two institutions intended to enter into a binding commitment towards each other. Nor has the Council contested its effect at any moment in the proceedings.157

Thereupon the Court concluded that ‘the Council acted in breach of section 2.3 of the Arrangement which it was required to observe’, and went on to annul the Council decision at issue. Thus, it is clear that interinstitutional agreements can at least have binding force inter partes. In this respect, it can also be observed that the actual title of the act concluded between the institutions is one of the elements that can be taken into account in the consideration of whether binding force is intended or not; obviously, the term ‘agreement’ is a stronger indication of this than ‘declaration’.158 Furthermore, as was seen in Subsection 5.5.4, some agreements make this intention unequivocally clear, whereas others seem to exclude it.159 The possibility of legally binding force of inter-institutional agreements on the basis of agreement must, however, be explored as well, in particular where it is difficult to assess what the actual intention of the institutions is. Does the underlying agreement and the way in which Community law provides for such agreements suffice for the conclusion that they must be considered legally binding? To begin with, it must be observed that several Treaty provisions actually provide for joint action of the institutions or for action ‘by common accord’.160 As such, they can be said to provide for the adoption of ‘agreed’ acts, and it does not seem logical that the institutions might be able to deviate at 157 See also Case C–58/94 The Netherlands v Council [1996] ECR I–2169, paras 26–27, discussed in Subsection 6.5.2.1 above, in which the Court concluded that there was no intention. 158 Cf in this sense Lenaerts and van Nuffel (1999), p 712, and Klabbers (1994). 159 Cf the Joint Declaration on fundamental rights. 160 Discussed in more detail in Subsection 7.3.2.

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will from the rules thus agreed upon. Consequently, the acts adopted on these legal bases must be deemed to have at least internal binding force.161 Yet, inter-institutional acts are also adopted without the Treaty specifically providing for the adoption of joint rules. In respect of these acts, the scope of Article 10 EC becomes particularly important. According to some authors, the obligation of sincere cooperation laid down in Article 10 EC entails that inter-institutional agreements have binding force,162 in particular since this obligation has also been declared applicable to interinstitutional cooperation.163 This was emphasised in a (non-binding) Declaration on Article 10 EC, attached to the Nice Treaty, which even more importantly provided expressly for the possibility of the EP, the Council and the Commission adopting inter-institutional agreements by common accord whenever this appears necessary for the facilitation of the application of the EC Treaty provisions. Although it further merely stipulates that these agreements may not deviate from the Treaty provisions or supplement these, and is thus silent on their legal effect, it can be argued here too that if the participating institutions were to deviate from them at will, this would detract from their effet utile. So, where interinstitutional agreements are concluded in the sense of this declaration, they must in principle be considered to have binding force, at least between the institutions. Case law also points in this direction. Thus, in the Cases Advernier and Andersen, the applicants alleged that in adopting Regulation 160/80 the Council disregarded the Joint Declaration on inter-institutional conciliation, since the Parliament had in vain requested that the conciliation procedure which it lays down be initiated. In particular, the declaration provides that the conciliation procedure may be followed for Community measures of general application which have appreciable financial implications. Since the applicants did not establish or even allege that the regulation had such implications, the Court rejected the complaint. 164 Yet, as such the Court seems willing to take the binding force of the Joint Declaration as a fact. In some cases, inter-institutional agreements may obviously have external effects as well. In my view, this in itself does not necessarily mean that individuals may rely on them in legal proceedings. In particular, the case of inter-institutional agreements seems different from that of ‘agreed’ acts in the area of state aid; by their very nature, the latter concerns substantive rules that are directed towards having external effect, at least regarding 161 Cf also Monar (1994), p 697. 162 Cf Barents and Brinkhorst (2001), p 185. 163 See Subsection 3.4.4. 164 Case 211/80 Advernier [1984] ECR 131,

paras 22–23 and Case 262/80 Andersen [1984] ECR 195, paras 24–25. Cf also Case 34/86 Council v EP [1986] ECR 2155, para 50.

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the Member States, whereas inter-institutional agreements are primarily internal rules, and adopted with a view to ensuring a common approach of the institutions to a certain matter, such as access to their documents.165

6.7.3

Pros and Cons of the Court’s Approach

The above discussion of the substantive approach of the Court to Community soft law acts, the (ensuing) possible ways to establish the incidental legally binding force of Community acts and the obscurities and implications connected therewith, raises the question of firstly, what the rationale behind this approach may be, and secondly, whether this approach is a satisfactory one. The reasoning behind the Court’s approach can be traced in particular in the older case law, and concerns the interest of the legal protection of the individual. Advocate-General Tesauro summarised this as follows in his opinion in Case C-366/88 France v Commission: [I]n principle the classification of measures is a matter for the court, irrespective of the nomen iuris attributed to them. That principle is well established in the laws of most of the Member States and has been reiterated on numerous occasions by this court, particularly in relation to the need to ensure proper judicial protection for private persons. (point 6 — emphasis added)

In fact, the formal approach to the binding force of hard law acts, the substantive approach to the nature of hard law acts (general or individual), and the substantive approach to the binding force of soft law acts can all be explained by the concern to ensure as far as possible the legal protection of the individual against unlawful Community acts. By means of these approaches, the Court has created the maximum number of possibilities under the present EC Treaty for individuals to bring an action for annulment against acts affecting their legal position. Consequently, from that point of view the formal and substantive approaches adopted by the Court are quite reconcilable and serve one main interest. Yet, some deem the Court’s substantive approach to the binding force of soft law acts to be unnecessarily complicated for the protection of this interest. In the above case, Advocate-General Tesauro thus suggested to the Court an alternative, more formal approach. In particular, he considered that acts not fulfilling essential formal requirements of a binding act 165 See, however, also Chapter 10 on the possibility of being bound to self-imposed internal rules, as a result of the principles of legitimate expectations and equal treatment.

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and emanating from an institution which has no powers to adopt binding measures in the area concerned, should be considered to be non-existent regarding third parties and not capable of imposing legal obligations. He deems that this approach is most likely to ensure legal certainty, since it removes the need for private persons and Member States to undertake a laborious examination of all documents and internal measures which might in some way conceal within them a regulation, with the result that even the slightest uncertainty would force them to bring the matter before the court.166

It thus appears, quite surprisingly, that the concern of legal protection is also one of the arguments behind the approach favoured by the A-G. At first sight, the A-G’s approach does indeed seem simpler and more appealing than that of the Court, because acts that are considered nonexistent cannot entail an obligation for the Member States to implement them and are ‘legally irrelevant’ for third parties. However, a first argument against the position taken by the A-G is that it goes against the system of legal protection as laid down in the Treaty.167 In particular, the Treaty provides sufficient guarantees against the possible drawbacks of the Court’s approach for third parties. Thus, an individual can protect itself against unlawful acts (of general application) by means of the plea of illegality if it has been confronted with a Community decision based thereon, or by means of preliminary questions on the validity of those acts if they have been transposed in national law. Member States can always institute an annulment procedure under Article 230 EC, so all that is required is some attention on their part as to whether the Commission or the Council is misusing its powers or infringing Community law in another way. A second argument is that the terms and system of Article 230 itself make it difficult to accept the A-G’s approach. Lack of competence and infringement of essential procedural requirements are mentioned as grounds for review. This assessment has thus been explicitly reserved to the Court, and forms part of the examination it will have to perform on the substance of the case. To take the view that actions against acts that do not fulfil such essential requirements cannot be allowed, seems very difficult to reconcile with this. For, if a binding Article 249 act does not fulfil a procedural requirement, it is not for that reason automatically nonexistent and hence non-appealable. In fact, the A-G recognises this drawback to his approach, but does not deem it insuperable.168 Moreover, one

166 Case C–366/88 France v Commission [1990] 167 Cf also van der Woude (1993), p 526. 168 See point 18 of his opinion.

ECR I–3571, points 15 and 18.

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289

might wonder when one can speak of an act failing to observe essential formal requirements; ‘how bad’ does the failure have to be and who is to determine that? To conclude on this, it would in my view be an undesirable conclusion to consider acts not fulfilling the essential procedural requirements to be non-existent, without it being necessary to look at their contents. For this would also then apply to true soft law acts, to which these requirements do not necessarily as such apply and whose existence and functions in the Community legal system are difficult to deny. Furthermore, they will also be seen to have certain indirect legal effects. To declare them non-existent for not complying with essential procedural requirements would therefore go against reality and also against their possible contribution to the effectiveness and legitimacy of Community action. The major drawback of the Court’s approach at this time seems to be the lack of awareness of its implications, on the part of both those who might benefit from Community soft law acts and those who would have to give effect to them, in particular the Member States. In fact, it seems that France is particularly aware of them, as its annulment actions have shown, and more recently also Spain.169 Another objection could be that the only way to take action against soft law acts imposing new legal effects is to institute legal proceedings.

6.8

CONCLUSIONS

In this chapter, the — umbrella — concept of legal effect was first explained as encompassing on the one hand the notion of legally binding force and on the other that of indirect legal effects. Next, one aspect of this concept was considered in detail: that is, how Community law and in particular the Court has approached the question of legally binding force of Community soft law acts. This examination revealed that the label given to such acts is in no way conclusive as to their possible binding force. In particular, it was seen that the ‘incidental’ legally binding force of Community acts lacking ‘inherent’ legally binding force can be established in two ways: either on the basis of their substance or as a result of agreement between the author of an act and its addressees. In respect of both ways, intention plays an important role. Thus, it must be possible to derive an intention to legally bind or be legally bound from the substance of an act, if it is to be capable of having binding force. Agreement presupposes such an intention, at least to a certain extent. Whereas the first way is open to both unilateral and bilateral or multilateral acts, the second way is necessarily open only for the latter types of acts. 169 Cf

Case C–443/97 Spain v Commission [2000] ECR I–2415.

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I explained above in Subsection 6.7.2 why the Court’s preference of the substantive approach over the formal approach to soft law acts is in my view to be applauded, from the point of view of both legitimacy, in particular legal protection, and effectiveness. However, that is not to say that the present situation is completely satisfactory in terms of effectiveness, legitimacy and transparency of Community action. In this respect, more thought must be given to how the Court has anchored the two ways to establish ‘incidental’ legally binding force within the Community legal system, in particular the conditions under which it has admitted them. As regards the first way, it has become clear that the test developed by the Court very much mirrors the conditions with which the use of ‘inherent’ legally binding instruments has to comply. Although some obscurities still remain in this respect, in particular regarding the statement of reasons requirement and the adoption process, I have argued that it is opportune and desirable that the Court should carry its reasoning further, if confronted with this situation. For with respect to (improving) the legitimacy of Community action, it would be unacceptable if, in order for Community acts to gain incidental legally binding force, fewer democratic and rule of law guarantees had to be fulfilled than in the case of the formal Community acts having inherent legally binding force. As regards the second way, it has also become clear that recognition of the legally binding force of ‘agreed’ acts requires an explicit legal foundation in primary or secondary Community law, providing explicitly for either the adoption of such acts or for a specific duty of cooperation between the Community and the Member States. However, in view of the possible external effect of this binding force, also for third parties, one might wonder whether this condition is sufficient. In particular, the publication of these acts is called for, so that third parties are able to take note of them. From the standpoint of transparency, closely connected with the issue of legitimacy, I would say that the present situation leaves quite a lot to be desired. Awareness of the Court’s case law in this respect seems to be rather low, and the implications of the Court’s approach do not seem to have been fully understood. This also creates problems from the point of view of effectiveness, in particular from the perspective of uniform application of Community law.

7 The Competence to Adopt Soft Law 7.1

I

INTRODUCTION

N THE PREVIOUS chapter, it became evident that the existence and identification of a legal basis is an important condition for establishing the legally binding force of a Community act; or, put the other way around, as a result of the operation of the principle of conferred powers, Community acts that aim at having legally binding force can only legitimately have such force if primary or secondary Community law provides a specific legal basis for the adoption of legally binding acts. This relates to the application of the principle of conferred powers in its capacity as principle of legality. At first sight and by reasoning a contrario, this seems to allow for the conclusion that when an act does not intend to have legally binding force, as is the case with a true soft law act, a legal basis in either primary or secondary Community law is not required; or in other words, that the principle of conferred powers does not apply to true soft law acts. In this chapter, I will examine whether this conclusion is justified. Obviously, the outcome of this examination depends primarily on the scope and significance given to the principle of conferred powers as such. As established in Section 3.4, this principle can be said to fulfil other functions besides legality, or ensuring that no legally binding rights and obligations are created and imposed without there being a legal basis therefor. To recall, these other functions of the principle of conferred powers include protection of the division of competences between the EC and the Member States, protection of the inter-institutional division of competences, legal protection and the principle of democracy.1 The question is then whether Community (case) law allows or should allow for the conclusion that one or more of these functions entail that the principle also applies to the adoption of soft law. The answer to this is also important with respect to the actual significance of the principle of conferred powers in the Community legal system.

1 Krausser

(1991), pp 26–30.

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Legal Issues of Community Soft Law

I will start this chapter with some observations regarding the need to discuss the issue of the EC’s competence to adopt soft law at all, and in that context I will also present some arguments for the applicability of the principle of conferred powers to soft law (Section 7.2). Next, to establish the extent to which the principle of conferred powers can be considered to apply to true soft law, I will consider how the question of competence is (to be) dealt with in respect of the different categories of soft law (Section 7.3). In view of the differing natures and functions of the soft law instruments at issue, it is necessary to look at them separately. Since formal steering instruments are the instruments which have been provided for in the Community legal system, I will start this discussion by first looking at their legal foundation (Section 7.3.1). This will also provide a starting point for the discussion of the competence to adopt non-formal steering instruments (Section 7.3.2), preparatory and informative instruments (Section 7.3.3) and interpretative and decisional instruments (Section 7.3.4). This discussion will also include consideration of, on the one hand, possible limits of the exercise of competence, and on the other, whether there can sometimes even be a duty to adopt (certain) soft law instruments. The chapter will end with a number of conclusions (Section 7.4).

7.2

THE RELEVANCE OF THE QUESTION OF COMPETENCE

Some authors have taken a rather limited view of the principle of conferred powers, involving only the principle of legality, by concluding that the principle applies solely to the legally binding instruments provided for by Article 189 (now 249) EC.2 Other authors have accepted implicitly that the principle of conferred powers also applies to soft law acts, but at the same time have considered that the Community has a more or less unrestricted competence to adopt soft law. Morand, for instance, has expressed the opinion that ‘Pour émettre des actes dépourvus de force obligatoire, les organes communautaires disposent de pouvoirs presque illimités’.3 Others also start from the premise that the principle of conferred powers is applicable, and have simply focused on whether the right legal basis has been chosen.4 Krausser has a broad conception of the principle of conferred powers but, quite surprisingly, this does not lead him to conclude that this principle applies to soft law, either in its

2 According to Bleckmann (1981), p 3 This conclusion thus appears to

891, this is even an undisputed view. derive from the lack of legally binding force as well. Morand (1970), p 623. Cf also van Ooik (1999), p 34. 4 Eg Sevinga (2001), pp 155–57.

The Competence to Adopt Soft Law

293

capacity of principle of legality or in the capacity of any of the other functions that it fulfils.5 A more general impression is that there seems to be very little interest in the question of the Community institutions’ competence to adopt ‘true’ soft law, and the requirement of a legal basis in this respect. In fact, only in respect of decisional acts has the question been given more thought. Yet, there are several arguments in favour of considering more closely how the use of soft law should be legally anchored in the Community legal system and also, in my view, of the applicability of the principle of conferred powers to soft law. Firstly, in every state or entity governed by the rule of law, the powers of government are in some way defined and limited. It is thus established, more or less, what general or individual decisions affecting individuals may be taken by the government, under what conditions, and by what institution or authority. The Community legal system is no different in this respect. In fact, precisely because it is founded on the principle of conferred powers, this can be said to apply even more for the EC. The intention was expressly not to endow the Community with a general competence to act, and consequently the Treaty provisions indicate when the Community may act, by what institution, in what form and according to what procedures. In view of this alone, it is difficult to assume that the adoption of sof law would require no foundation of competence at all, and that the use thereof would not also be limited in some way, by the law itself, as a result of general principles of law or because of other concerns.6 These limits can only be fully explored after the foundation of competence has first been examined. Secondly, and following on from the above argument, the conclusion that the principle of conferred powers is not applicable to soft law seems difficult to reconcile with the fact that Article 211 second indent EC provides in a general way for the possibility of the Commission to adopt recommendations and opinions. 7 The drafters of the Treaty apparently deemed it necessary to establish the Commission’s competence to do this. Furthermore, several Treaty articles also explicitly provide for the adoption of these instruments. The question then is how this should be explained; does it mean that a specific competence is sometimes required, or does such explicit provision indicate not merely

5 Krausser (1991), pp 88–89 in particular. Unfortunately he does not explain why the other functions fulfilled by the principle of conferred powers do not, in his view, allow for this conclusion. 6 Cf van Kreveld (1983), p 38. See also in this respect Subsection 7.3.1.1 — The Competence of the Commission. Furthermore, as will be seen in Chapter 8, in some cases it will be necessary in fact to adopt legislation. 7 Cf also the wording of Article 249 EC and Adam (1999), pp 92–93.

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a competence to adopt such acts, but possibly even an obligation to do so?8 A third argument is that if one were to conclude that the principle of conferred powers does not apply to soft law, this would entail a diminution of the comparative relevance of this principle in Community law. That is to say, if the Community institutions increasingly have recourse to soft law instead of legislation, without being required to account for their competence to do so, the significance of this principle is affected.9 This would in turn induce the conclusion that the legitimacy of Community action is thereby reduced, since it would then lack a foundation in the Community legal system. This would run counter to the — efforts to enhance the — legitimacy of Community action. If only for this reason, the applicability of the principle of conferred powers, particularly in its function as a principle of democracy, is in my opinion called for. A further argument for this applicability, also connected with the issue of legitimacy of Community action,10 is that soft law is capable of having certain indirect legal effects at both the national and the Community level. In this respect, it may even be argued that insofar as soft law aims at influencing the behaviour of its addressees, it requires some foundation.11 The possible foundations on which the use of Community soft law relies should therefore at least be explored. In addition to the foregoing, it must also be recalled here that practice shows a somewhat blurred picture when it comes to the perceived need for and identification of a legal basis in soft law acts.12 On the one hand, it has become clear that the lack of a legal basis for legislation may precisely underlie the choice of soft law, and consequently a (specific) legal basis is not mentioned. On the other hand, it has also become clear that certain soft law acts, in particular Council recommendations, do as a general rule mention a (specific) legal basis. This confusing and at first sight contradictory practice also raises the question of the extent to which a legal basis is required. At least, it makes one wonder what reason(s) underlie(s) the reference to a specific Treaty or secondary Community law provision; is this reference in fact intended as a legal basis, or does it serve another purpose? In this respect, further attention should also be given to precisely how the fact that the Member States adopt non-formal 8 Cf Zuleeg (1971), p 7, who even at that early date observed that the indication of a certain legal instrument in a ‘competence conferring norm’ would be superfluous if there were no regulation of the exercise of this competence. 9 In respect of Community legislation, this principle was recently explicitly confirmed in Case C–376/98 Germany v EP and Council [2000] ECR I-8419. 10 See on this point also von Bogdandy and Bast (2002), pp 232–33. 11 See in this sense and as regards communications, Adam (1999), pp 92–93. 12 As established in Chapter 5.

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steering instruments in different capacities13 is related to the issue of competence. To conclude, even if the principle of conferred powers does not apply to soft law in its capacity as principle of legality, requiring a legal basis to ensure the legality of legally binding measures of the Community, this does not necessarily mean that no foundation of competence whatsoever is required for the adoption of soft law. That is to say, one of the other purposes fulfilled by the principle of conferred powers — such as the protection of the division of powers between the Community and the Member States and between the Community institutions inter se — may call for some foundation of competence in the Treaty or secondary Community law for the adoption of soft law, albeit not necessarily providing explicitly or specifically for its adoption. This will now be examined in more detail for the different categories of soft law instruments identified in Chapter 5.

7.3

7.3.1

THE APPLICABILITY OF THE PRINCIPLE OF CONFERRED POWERS

Formal Steering Instruments

Article 249 EC provides that: In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall … make recommendations or deliver opinions (emphasis added).

From this formulation it ensues that the Community institutions may only adopt the said instruments if this is in line with the Treaty provisions. This alone can be regarded as an expression of the applicability of the principle of conferred powers to the formal non-binding instruments as well. Yet, it is generally understood that in itself, Article 249 does not have a competence conferring nature. The question is then how the adoption of recommendations and opinions fits in with the Treaty provisions. In this respect, it should be recalled that a number of Treaty articles provide for the adoption of recommendations and opinions, in particular by the Commission and to a lesser extent by the Council. Moreover, in respect of Commission recommendations and opinions, Article 211 EC second indent is of importance. There is not, however, a provision comparable 13 Council acts, acts adopted by the Council and the Representatives of the Governments of the Member States (‘mixed acts’), and acts adopted by the latter only. See Subsection 5.5.1.

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to this as regards such Council acts, so I will discuss separately the competence of the Commission and the Council to adopt these. 7.3.1.1

The Competence of the Commission

As regards the Commission’s competence to adopt recommendations,14 I established in Subsection 5.4.3 that most Commission recommendations start by referring to Article 155 (now 211) EC, in particular the second indent thereof. The Commission is obviously of the opinion that a competence to adopt recommendations is required and that this article provides for such a — more or less general — competence to adopt them. Only occasionally has the Commission referred to a specific legal basis in the EC Treaty or in secondary legislation, usually alongside Article 211 EC.15 Its second indent reads: In order to ensure the proper functioning and development of the common market, the Commission shall: … formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary

The scope of Article 211 is not undisputed. One view is that it concerns only the allocation of tasks to the Commission and that it can not be considered a Treaty provision conferring power upon the Commission; at most, it is considered a means to interpret the powers that have been established in other Treaty provisions.16 Yet, on the basis of its very wording, it can be argued that this is not true for its second indent, and that this in fact entails a rather general competence for the Commission to adopt recommendations and opinions. Moreover, it would be a rather superfluous provision if the competence to adopt these still had to be established on the basis of individual Treaty provisions. This also appears to be the prevailing view in legal writing: as a result of this provision, a specific empowerment for adopting them is not considered necessary.17

14 The

focus here will be on recommendations, since the ‘individual’ nature of opinions makes them less important for the purposes of this study. See Subsection 5.4.5. 15 Thus, Recommendation 98/322/EC on interconnection in a liberalised telecommunications market mentions EP and Council Directive 97/33, in particular Article 7(5) thereof, which instructs the Commission to adopt such a recommendation according to a procedure prescribed by the directive; Recommendation 97/618/EC ensues from Regulation 258/97 in a similar way. Cf also Commission Recommendation of 17 January 2001 on the maximum permitted blood alcohol content (BAC) for drivers of motorised vehicles, which was based on Article 71 EC. 16 Barents and Brinkhorst (1999), pp 86 and 128. Cf also Krausser (1991), p 88. 17 Kapteyn and VerLoren van Themaat (1995), p 129, Smit and Herzog (2002), p 634, van Ooik (1999), p 34, Triantafyllou (1997), p 370, Adam (1999), p 83, Krausser (1991), p 88, von der Groeben et al (1997), p 274.

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Indeed, support for the latter view can be found in the Court’s case law. Firstly, it can be inferred from this case law that the principle of conferred powers in its function of principle of legality does not apply to — either Commission or Council — recommendations. This already follows from the judgment in the Grimaldi Case, in which the Court held that recommendations are generally adopted by the institutions of the Community when they do not have the power under the Treaty to adopt binding measures or when they consider that it is not appropriate to adopt more mandatory rules.18

Hence, the identification of a (specific) legal basis19 as required for the adoption of legislation or other legally binding measures, is not required for the adoption of recommendations. At the same time, the Court’s statement implies that it recognises the competence of the Commission, and of other institutions, to adopt recommendations, without however indicating the foundation of this competence. The Court expressed its views on this more clearly in Case C-303/90, France v Commission.20 In this case the Commission argued that it was competent under Article 155 (now 211) EC to adopt measures for the uniform implementation of the obligations deriving from the secondary law provision at issue. Although these measures had been laid down in a Commission code of conduct and not in a recommendation,21 the Court held in response to this argument that it should be noted that Article 155 of the Treaty gives the Commission the right to formulate recommendations or deliver opinions which, according to Article 189 of the Treaty, are not binding. It follows that the Commission cannot draw from Article 155 the power to adopt an act imposing on Member States obligations going beyond what is provided for in Article 23(1) of Regulation No. 4253/88. (para 30 — emphasis added)

In the Nefarma Case the CFI held in so many words that (ex) Article 155 and (ex) Article 189 EC entail the ‘express conferral of the power to adopt acts with no binding force’.22

18 Case 322/88 Grimaldi [1989] ECR 4407. 19 See also Subsection 3.4.1. 20 Case C-303/90 France v Commission [1991] ECR I–5315. 21 Which may also explain why the Commission refrained

from referring to the second indent of Article 155, but placed its argument more within the framework of the first indent thereof. 22 Case T–113/89 Nefarma [1990] ECR II–797, para 79. See Subsection 8.5.2 for the Court’s view as to what this entails in terms of compliance.

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So, secondly, it can be concluded from this case law that the Courts deem that (the second indent of) this provision does indeed confer upon the Commission a general competence to adopt true recommendations and opinions, not imposing any obligations in addition to existing Community legislation. Advocate-General Tesauro expressed this even more explicitly in his opinion in the aforementioned Case C-303/90, where he held that [ex] Article 189 of the Treaty permits the adoption of non-binding acts and [ex] Article 155 of the Treaty gives the Commission the power to formulate recommendations or deliver opinions not only on matters expressly dealt with in the Treaty but also whenever it considers it necessary; the Commission therefore has absolutely no need to demonstrate its competence to recommend one course of action rather than another: this competence is incontestable. (point 20 — emphasis added)

To summarise, it thus appears that the Courts, albeit rather implicitly, consider it necessary to establish the competence of the Commission to adopt recommendations and opinions to be found in (now) Article 211 EC; and hence that the principle of conferred powers is applicable. Nonetheless, this is indeed quite a general empowerment, almost to the extent of giving the Commission carte blanche,23 as it may adopt such acts not only where expressly provided for by the Treaty, but whenever it considers this necessary. The question is then what function(s) the applicability of the principle of conferred powers to Commission recommendations fulfils. A first observation is that the carte blanche can be seen against the background of the more general role assigned to the Commission in the institutional system; it is to act as the motor of European integration. Not only is its role in the decision-making process — the right of initiative24 — an expression of this, but so too is this right of adopting non-binding acts which may pave the way for future Community legislation. As such, this applicability can be seen in the light of safeguarding the powers and tasks assigned to the Commission. Furthermore, according to the above quotation from Article 211 EC, the carte blanche is given in respect of the proper functioning and development of the common market. It is clear that this wording allows for quite an extensive interpretation, and even more so when read in conjunction with the second indent itself. That is to say, whenever a matter falls within the substantive scope of the Treaty, it will be possible for the Commission

23 Cf Triantafyllou (1997), pp 368–76, 24 See also Subsection 7.3.4 below.

who speaks of a habilitation globale.

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to adopt a recommendation on it, whether this adoption is expressly provided for in a Treaty provision or not. At the same time, this can also be understood as a (first) limit of the exercise of this competence, lying in the ratione materiae of the Treaty.25 In view of this, it can be argued that the Commisions’s reference to Article 211 EC in its recommendations serves in particular the purpose of recalling that, on the basis of this provision, it is generally empowered to adopt these, and that the contents thereof are within the limits of this competence, ie within the scope of Community law. As such, this reference can then be understood in the light of the division of competences between the Member States and the Community and the concern to respect this division.26 One may next wonder whether there are no other limits to the Commission’s use of its power under Article 211 second indent, particularly in view of the fact that a number of Treaty provisions provide a specific legal basis for the adoption of (Commission or Council) recommendations and opinions. A first question is then whether, in the case of a recommendation falling within the scope of such a Treaty provision, explicit identification of this provision is in fact required.27 A second question is whether such a specific (Council) legal basis may preclude the Commission from making use of its general competence under Article 211(2) EC. I take the view that both questions must be answered in the affirmative. The indication of a specific legal instrument in a Treaty or secondary law provision would indeed be superfluous if there were no regulation of the (exercise of) competence to accompany this.28 More particularly, it implies that the drafters of the provision at issue have already made the choice of instrument, possibly as an alternative to legislation. Moreover, such a provision may provide for certain guarantees as to who is to adopt the instrument at issue and according to what procedure, and/or for specific (legal) consequences.29 With regard to the first question, Article 226 EC provides support for this standpoint. Obviously a Member State will have to know that the Commission has adopted an opinion under this article, as it means that the Commission may wish to bring an enforcement action against it. Equally, it will have to know whether the Commission has adopted a recommendation under Article 97 EC, because if a Member State does not

25 Cf also von der Groeben et al (1997), p 274. 26 See also below Subsection 7.3.1.2 — The Competence of the Council. 27 This question may actually also occur in respect of secondary Community

law prescribing the adoption of such acts. Cf eg the background to the adoption of Recommendation 98/322, as indicated above in note 15. 28 Ibid note 8. 29 Cf in this sense also van Ooik (1999), p 279.

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comply with a recommendation adopted by the Commission on that basis, this entails that other Member States cannot be considered obliged to comply with it either.30 These examples in fact make clear that identification of a specific legal basis may be required out of concern for legal protection. With regard to the second question, Article 151(5) second indent EC provides support for the above position. This provision states that only recommendations may be adopted, and this only by the Council on the proposal of the Commission. As a consequence, the Commission must be considered precluded from adopting recommendations in the area of culture under its general power of Article 211(2), as this may be counter to the effet utile of Article 151(5) second indent EC and the democratic and in particular institutional guarantees for which it provides.31 Clearly, what is primarily at stake here is the principle of conferred powers in its functions of protecting the inter-institutional division of competences and of protecting democracy, which entail that the Commission should limit itself to the role assigned to it, in this case merely putting forward a proposal for a Council recommendation. To summarise, although the principle of conferred powers in its function as principle of legality does not apply to the adoption of true recommendations, I am of the opinion that it must be considered to apply to this in its other functions. Thus, not only may the concern of the division of competences between the EC and the Member States require the identification of a legal basis, but also reasons of legal protection, institutional balance and democracy can plead for such identification, and in particular for that of a specific legal basis, where present. The existence of a specific legal basis may then preclude the Commission from making use of its general power under Article 211 second indent EC. In that event, the recommendation should be based on the specific primary or secondary Community law provision and adopted in conformity with it. In my opinion, this also entails that procedural requirements are applicable, insofar as the specific legal basis prescribes these. In view of this, the choice of the right legal basis can indeed be of importance also for the adoption of Commission recommendations. Following on from this, one might wonder how far there may be not only a competence but possibly also a duty to adopt recommendations. In this respect, it must be noted that Article 211 second indent EC

30 Cf also Soldatos and Vandersanden (1976) on this provision; and von der Groeben et al (1997), p 1061. 31 See in this sense also van Ooik (1999), pp 278–79. Provisions similar to that mentioned, are Article 149(4) second indent concerning education, professional training and youth and Article 152(4) concerning public health.

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states in rather mandatory terms that the Commission ‘shall’ formulate recommendations and opinions. However, this question arises in particular in respect of the Treaty or secondary Community law provisions both expressly providing for the adoption of these instruments and also using mandatory terms. Can there be a duty to adopt instruments that are expressly not intended to be legally binding? Since the non-adoption of recommendations/opinions may in fact in some cases have concrete legal effects, I deem that this must be considered possible.32 According to von der Groeben, this is certainly the case. As regards the Council and the Commission, he claims that there is a constitutional obligation for them to adopt the recommendations and opinions provided for in the Treaty. If they fail to do so, then they are liable to an action for failure to act under Article 175 (now 232) EC.33 The wording of Article 232 itself does indeed lend support to the wide interpretation, whereby recommendations and opinions are included among the instruments concerning which actions may be brought by the Member States and the Community institutions.34 Yet, this interpretation is not undisputed, and even opposite views have been expressed. In particular, in light of the fact that under Article 173 (now 230) EC it is not possible to bring an action for annulment of a true soft law act, it is considered not possible to bring an action for failure to act.35 Finally, it may be wondered whether Article 211 second indent EC can also be said to apply to the adoption of other soft law instruments; does it provide an empowerment for these as well? This question will be addressed in Subsection 7.3.2. 7.3.1.2

The Competence of the Council

According to Article 249 EC, the Council too can adopt recommendations and opinions ‘in order to carry out [its] task and in accordance with the provisions of this Treaty.’ However, there is no provision comparable to Article 211 second indent EC for defining the Council’s powers so explicitly in this respect. Only in a very general way does the second indent of Article 202 EC provide that

32 Although

it must also be observed that there may be discretion on the part of the adopting institution to adopt a recommendation/opinion or not, such as in the case of the Article 226 procedure. 33 Von der Groeben et al (1997), pp 1060–61. 34 In particular, when a comparison is made between the first and third paragraphs. 35 Theory of ‘unity’. See Albors-Llorens (1996) for the different views expressed in this regard, pp 211–12. See also Hartley (1998), pp 384–86, who says that the Court has not given a definite answer regarding the extent to which the narrow or wide interpretation should prevail in this respect.

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To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty: … have power to take decisions.36

As far as I have been able to establish, there is no case law concerning the Council’s competence to adopt recommendations, and hence shedding more light on whether in fact this provision can be read so as to imply the competence to adopt soft law instruments as well. As will be seen in Subsections 7.3.3 and 7.3.4, the Court has used such implied-powers reasoning in regard of preparatory and decisional instruments. With that in mind, it can be argued that such reasoning can also be applied to Article 202 second indent in respect of Council recommendations. In legal writing, it has been argued that anything that the Commission is allowed to do, cannot be withheld from the Council. Since there is no reason to apply a stricter regime to the Council than to the Commission in respect of the competence to adopt recommendations and opinions, in the case of Council recommendations there should again be no need to identify a specific legal basis, although this is in fact permitted.37 Yet, in Section 5.4 it was established that, unlike the Commission, the Council does indeed identify a specific legal basis in the Treaty for its recommendations. It must take the view that at least adoption under Article 235 (now 308) EC is possible.38 At first sight then, the Council thus seems to start from the point of view that the principle of conferred powers in its function of principle of legality also applies to the adoption of recommendations.39 However, I would say that appearances are deceptive in this respect, as identification of such a specific legal basis can be explained by other purposes served by the principle of conferred powers. In view of the fact that the recommendation is a formal Community instrument, and in view of the wording of Article 249, the Council may feel compelled to justify in each individual recommendation that it has been adopted in accordance with the Treaty and in particular that it falls within its scope. This argument is further supported by the fact that there are far fewer Treaty provisions providing expressly for the adoption of

36 The wording ‘to take decisions’ is slightly confusing. Other language versions of the Treaty

make clear that this should be understood in the sense of ‘power of decision’. See the French version, which speaks of ‘pouvoir de décision’ in this respect; and the Dutch version, which speaks of ‘beslissingsbevoegdheid’. Cf also Article 211 third indent EC, which refers to the Commission’s ‘own power of decision’. 37 Cf van Ooik (1999), p 34. In a broader sense, Krausser (1991), p 88 concluded on the basis of the same argument that the principle of conferred powers does not apply at all to nonbinding Council acts. 38 For concrete examples, see Subsection 5.4.3.3. 39 Cf also Ipsen (1972), p 460.

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recommendations by the Council than by the Commission40 and that there is no provision in the case of the Council comparable to Article 211 second indent. In the case of Commission recommendations, it can be argued that there is less need for such express reference, as this provision already states that the Commission will adopt these within the framework or scope of the Treaty. In respect of Commission recommendations, I thus concluded that there is a rather general empowerment to adopt them, and that an important limit lies in whether their contents fall within the substantive scope of the Treaty. In view of this, I consider that the indication of a specific legal basis in Council recommendations as well can be explained as arising from a concern to indicate that the action taken by the Council is within the substantive scope of Community law. This can in turn be understood in the light of the division of competences between the EC and the Member States. With a view to maintaining the legitimacy of Community action as a whole, it seems only wise to establish that such acts concern matters which fall within the ratione materiae of Community law, the more so because it will be seen that they are capable of having indirect legal effects. Finally, the above observations concerning a possible duty of the Commission to adopt soft law, also apply mutatis mutandis to the Council; in particular, where the Treaty actually prescribes this adoption in mandatory terms.41 The same is true for the conclusion that the existence of a specific legal basis for recommendations of the one institution precludes their adoption by the other.42

7.3.2

Non-Formal Steering Instruments

I indicated earlier that an important difference between formal Council steering instruments (recommendations) and non-formal Council steering instruments (conclusions, declarations, resolutions and codes of conduct or practice) is that the latter only rather exceptionally mention a specific legal basis in the EC Treaty.43 Yet, in my view, the fact that a legal basis is not identified cannot lead automatically to the conclusion

40 It is noteworthy that only since the ratification of the Maastricht Treaty do some Treaty articles provide for the adoption of recommendations by the Council. This is probably because in some areas expressly non-binding acts are preferred over binding ones, which would fit in with the idea of subsidiarity and the new legislative policy. See eg Articles 99(2) and (4), 149(4) and 151(5) EC. 41 Eg Article 151(5). 42 Cf also van Ooik (1999), p 279. 43 See Section 5.5 for more details on this and for examples.

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that the principle of conferred powers does not apply to the adoption of these instruments. 7.3.2.1

The Competence of the Commission

As observed in Section 5.5, the Commission makes little use of nonformal steering instruments, except for codes of conduct. Several authors maintain the view that Article 155 (now 211) second indent EC also provides for a general power of the Commission to adopt other non-binding instruments.44 The judgment of the Court in the aforementioned Case C-303/90 France v Commission can indeed be read as confirming this view, insofar as the acts concerned fulfil similar functions to recommendations.45 However, the case law in this respect is scarce, so it is difficult to draw any firm conclusions. A more refined view was put forward by Triantafyllou, who looked at other possible foundations for other types of instruments. He is of the opinion that the Commission uses instruments which influence behaviour, but for which no explicit and general competence exists in the Treaty.46 7.3.2.2

The Competence of the Council47

From the discussion of non-formal Council steering instruments in Section 5.5, it can already be inferred that the principle of conferred powers must also be considered to apply to these instruments, although this applicability is not expressed in the same way as in the case of Council recommendations. That is to say, non-formal steering instruments are adopted by the Member States as Council, mixed or RGM acts.48 The choice of ‘adopting authority’ was there observed to be a deliberate choice induced by the subject matter or objective of the act in question. The availability or absence of a legal basis in the EC Treaty determines whether a particular resolution, declaration or conclusion is adopted by the Council alone, by the Council in conjunction with the Representatives of the Governments of the Member States (mixed), or

44 Cf Smit and Herzog (2002), p 634. Cf also van Ooik (1999), p 34. 45 Case C–303/90 France v Commission ECR [1991] I–5341, para 30

and points 20–21 of the opinion of A-G Tesauro. 46 Triantafyllou (1997), p 345. With respect to recommendations and opinions, see pp 368–376. Cf also Adam (1999), pp 84–85. 47 As regards the Council’s power to adopt recommendations, another interesting observation is made by Smit and Herzog (2002), pp 634, that regardless of whether the principle of conferred powers also applies to non-binding acts, ‘the Council may always take recourse to the instrument of the non-binding resolution’. Cf the Council’s reply to written question no. 452/83 of Rogalla, OJ 1983, C 227/15. 48 Cf Subsection 5.5.1.

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only by the latter. If the adopting institution is the Council, then the contents fall within the scope of Community law. The mixed acts relate not only to the Community domain but also to certain areas that fall within national competence. If adopted solely by the Representatives of the Governments of the Member States, then no Community competence is present. Highly illustrative in this respect is the way in which the Council has made use of non-formal steering instruments in the areas of health, education, social affairs and culture. For a long time, the EC had little or no competence in these areas, which was reflected in the fact that many mixed or RGM steering acts were adopted in these areas. Since 1994, when the Treaty of Maastricht brought these within the scope of the EC Treaty by providing a number of legal bases, the quantity of Council conclusions in the areas of health, education and culture has increased significantly, while at the same time the quantity of mixed (and RGM) conclusions in those areas has decreased. These legal bases have actually been mentioned in a number of Council conclusions. In the case of mixed steering acts, the shared competence may also be expressed as such in their contents. For instance, the Conclusions of the Council and the Ministers of Youth meeting within the Council of 30 November 1994 on the promotion of voluntary service periods for young people start by considering that: Under the policy of cooperation in matters relating to youth and having regard to the competence of the Member States in regard to voluntary services, the Council and the Ministers of Youth meeting within the Council examined the possibilities for developing transnational voluntary services periods for young people.49

Although a legal basis in the EC Treaty is not usually indicated, the adopting actors thus make clear whether something actually falls (partly) within Community competence or whether it is clearly outside this competence and exclusively a matter for the Member States. In short, a connection is made between the adopting authority and the issue of competence. Clearly, the function of the principle of conferred powers at stake here is the protection of the division of competences between the EC and the Member States. Inter-institutional agreements and declarations, generally adopted by the Council, Commission and EP, are actually not unfamiliar to the EC system, as a number of Treaty provisions stipulate that the institutions are to settle their mutual relations or to determine a joint interpretation or

49 OJ

1994, C 348.

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application of certain principles. Article 193(3) EC, for instance, provides that detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the European Parliament, the Council and the Commission;

and Article 218(1) EC provides that ‘The Council and the Commission shall consult each other and shall settle by common accord their methods of cooperation.’50 Furthermore, the increasing use of these instruments and the growing importance of inter-institutional cooperation as such are also reflected in the Declaration re Article 10 EC attached to the Nice Treaty. This declaration not only affirms the Court’s case law that Article 10 EC also applies to the Community institutions in their behaviour vis-a-vis each other, but also provides an explicit competence for the adoption of inter-institutional agreements. It reads: The Conference recalls that the duty of sincere cooperation which is reflected in Article 10 of the Treaty establishing the European Community and governs relations between the Member States and the Community institutions also governs relations between the Community institutions themselves. In relations between those institutions, when it proves necessary, in the context of that duty of cooperation, to facilitate the application of the provisions of the Treaty establishing the European Community, the European Parliament, the Council of the European Union and the Commission may conclude inter-institutional agreements. Such agreements may not amend or supplement the provisions of the treaties and may be concluded only with the agreement of these three institutions.

Even though such declarations have no binding force,51 this declaration demonstrates that the Member States accept the present use of this instrument and that they agree on the beneficial effects it may have for the functioning of the institutional system.

7.3.3

Preparatory and Informative Instruments

As observed in Section 5.2, it is the Commission that makes most use of preparatory and informative instruments. Its Green Papers and White 50 See also Articles 248(3) and 272(9) EC. 51 Article 311 EC only stipulates that the

integral part thereof.

protocols annexed to the EC Treaty shall form an

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Papers do not usually indicate by virtue of what competence or on what legal basis they have been adopted, but their adoption with a view to the elaboration and preparation of future Community action can be said to fit in with the role assigned to the Commission in the legislative process. In very general terms, this role is set out in the third indent of Article 211 EC. According to this provision, the Commission shall: In order to ensure the proper functioning and development of the common market, … have its own power of decision and participate in the shaping of measures taken by the Council and by the European Parliament in the manner provided for in this Treaty.

This provision gives no explanation as to what exactly this participation consists of, but it can be inferred from several Treaty provisions that the Council and the EP act upon a proposal made by the Commission.52 More precisely, the Commission has the exclusive right of initiative.53 In order to make proper use of this right, the Commission has to assess the need and desirability of legislation or of any alternative Community action. Green and White Papers provide an aid in this assessment. Yet, Article 211 EC third indent does indeed seem to concern merely the allocation of tasks and not the conferral of powers. That is, it does not seem to allow for the conclusion that it confers on the Commission the competence to adopt certain instruments in the performance of its task in the decision-making process. However, according to case law of the Court, it is in fact possible to derive the existence of a competence from the allocation of tasks, so that the institution concerned is able to fulfil or perform these tasks. This can be seen from the Court’s judgment in the Germany, France, Netherlands, Denmark and UK v Commission Case.54 In particular, it follows from this judgment that when a Treaty article imposes a clearly defined task on the Commission, it must be understood to also confer the necessary powers on the Commission to fulfil this task, in view of the requirement of effet utile of Community law. Specifically, the Court held in this case that where an Article of the EEC Treaty … confers a specific task on the Commission it must be accepted, if that provision is not to be rendered

52 In

a general way, from Articles 250–52 EC, which contain the decision-making procedures, and also from numerous separate Treaty provisions indicating that the Council and the EP act upon a proposal of the Commission. 53 Cf also Article 192 EC second paragraph. 54 Joined cases 281, 283–85 and 287/85 Germany, France, Netherlands, Denmark and UK v Commission [1987] ECR 3203.

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wholly ineffective, that it confers on the Commission necessarily and per se the powers which are indispensable in order to carry out that task. [para 28]

Although this case concerned a specific task of the Commission, ie promoting and arranging collaboration between the Member States in the framework of Article 118 (now 137) EC, I do not see why a similar reasoning could not be applied to more general tasks of the Commission. The judgment of the Court in Case C–106/96 UK v Commission can be considered to support this view.55 In this case, which concerned the question of the Commission’s competence to adopt certain decisions for funding social exclusion projects, it held that: Any Community expenditure, it is submitted, requires a dual legal basis: entry in the budget and, as a general rule, prior adoption of an act of secondary legislation authorising the expenditure in question. The only exception to the latter requirement concerns the funding of non-significant actions, namely pilot projects or preparatory actions designed to assess the policy pros and cons of a proposal for a basic measure. In that event, the legal basis lies in the Commission’s power of initiative derived directly from the Treaty. (para 19 — emphasis added)

The Court can thus be said to have used similar reasoning to that in the first case, with a view to establishing the Commission’s competence to develop preparatory actions. Although the preparatory actions mentioned by the Court in this judgment have to be distinguished from the preparatory soft law instruments under discussion here, it appears that they fulfil the same aims. That is to say, to assess the pros and cons of the policy or legislation to be developed. In view of this, I consider that the reasoning applied by the Court in these cases can also be applied to the preparatory soft law instruments at issue here. In particular, the Court’s reasoning makes clear a number of points. By implication, it appears that the Court deems it necessary to establish competence in the case of preparatory action taken by the Commission in the performance of one of its tasks. Yet, it also appears that the adoption of preparatory actions that are taken in order to establish the merits of further (legislative) action does not require a specific legal basis; it is sufficient to establish an implied power. In this respect, it is clear that the Court is willing to give this notion a wide interpretation. That is to say, this adopting power may be implied not only in the existence of an

55 Case

C–106/96 UK v Commission [1998] ECR I–2729.

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explicitly given power, but may also be implied in the existence of a given task or a Community objective.56 This leads to the conclusion that whenever the performance of the task formulated in Article 211 third indent is at issue, and in particular whenever the Commission wants to make use of its right of initiative, it can take the preparatory measures deemed necessary for a proper exercise thereof. As such, it is clear that the principle of conferred powers does not apply in its function of principle of legality, but foremost in its function of ensuring that the Commission acts within the boundaries of the powers and tasks assigned to it. A quite recent development even points in the direction of an obligation to adopt such preparatory acts. That is, since the introduction of the principles of subsidiarity and proportionality,57 and also with a view to increasing transparency, it has become all the more imperative that the Commission make an assessment as to the necessity and desirability of Community action. This was further emphasised in the Protocol on subsidiarity and proportionality attached to the Treaty of Amsterdam. In this Protocol, the drafters of the Treaty went beyond merely recognising the Commission’s competence to adopt acts such as Green and White Papers, to the extent of directing the Commission to consult and involve interested parties, with regard to the possible contents of Community legislation and policy. Its point 9 thus establishes that: Without prejudice to its right of initiative, the Commission should: … except in cases of particular urgency or confidentiality, consult widely before proposing legislation and, wherever appropriate, publish consultation documents.

However, the formulation of this provision raises a number of questions which are bound to give problems. Firstly, this provision has obviously imposed a new obligation on the Commission to adopt and publish consultation documents. Yet the scope of this obligation is far from clear; the word ‘should’ points in the direction that nothing more than a moral obligation has been created in this respect. If it were to be a legal obligation, the word ‘shall’ would have been more logical and appropriate. Further to this, one may wonder what the consequences would be if consultations were not conducted, and consultation documents not published. Would an Article 232 EC appeal for failure to act be admissible? Although the possibility to bring such an action against a non-binding act must not be regarded as excluded,58 it would be unlikely to succeed, precisely because there is only a moral obligation. 56 See in the same sense Hartley (1998), p 103. 57 The latter as an institutional principle; see Subsection 58 See above Subsection 7.3.1.

3.6.1.

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Secondly, the question immediately arises as to when one may speak of ‘cases of particular urgency or confidentiality’, allowing for consultation to be omitted. And who is to make that decision? Moreover, the consideration that the publication of consultation documents is only required ‘wherever appropriate’ also leaves a considerable margin of discretion to the Commission. From this standpoint too, an Article 232 EC procedure would probably not succeed. Furthermore, one may wonder what the publication requirement actually entails. Does it mean that the consultation document has to be published in the Official Journal (the C-series) or will publication as a COM document be sufficient? Even more importantly, what are the modalities of the consultation process that is established by this provision? Nothing is said about how the Commission should proceed in this respect, nor whether and how it should take account of the outcome of this process. The fact that the provision starts by saying ‘Without prejudice to its right of initiative’ seems to indicate that the Commission’s discretion in this respect is not to be infringed by the outcome of this process. That is to say, the message given by this wording is that, regardless of the outcome of this process, the Commission will still be free to decide what (legislative) action to propose. As such, this wording was probably induced by the concern to preserve the institutional balance.59 Yet, this formulation is surprising in the light of my conclusion above that the Commission’s competence to adopt preparatory acts is in fact implied in its task in the decisionmaking process, in particular in its right of initiative. In view of this, it would have been more appropriate in my view to express that it is precisely within the framework of exercising this right that the Commission has to adopt such consultation documents; it would then also be possible to consider these more a contribution to improving the legitimacy of Community action. The case of action programmes must be approached with slightly greater care. Firstly, this is because the adoption of (action) programmes is in fact envisaged or even prescribed by a number of Treaty provisions.60 This in itself points in the direction that the principle of conferred powers also applies to this type of Community instruments and that in some cases there is actually a duty to adopt them. Secondly, it must be remembered that (action) programmes are adopted in different forms. As regards those programmes that are adopted by means of a Council decision or regulation,61 the principle of conferred powers in the sense of 59 See also Subsection 8.3.3.3 60 Cf Articles 175(3), 166 and

on this aspect. 168 EC and in the pre-Amsterdam version of the EC Treaty also (ex) Articles 54 and 63(1) EC. 61 See Subsection 5.2.1.3. Quite rarely, action programmes have also been laid down in regulations. The reason behind this choice is not very clear, but might perhaps be sought in the different (legal) nature of regulations, as explained in Subsection 2.4.1.3.

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the principle of legality requires that there be a legal basis in the Treaty or secondary legislation allowing for the adoption of legally binding measures. Legally binding (action) programmes are adopted not only on the basis of Treaty provisions providing specifically for their adoption, but also on the basis of other specific Treaty provisions. Thus, action programmes have for instance been adopted on the basis of Articles 100A (now 95) and 128 (now 151) EC,62 which provide respectively for the adoption of ‘measures’ and ‘incentive measures’, and also on the basis of the ‘catch-all’ Article 235 (now 308) EC.63 These articles also indicate the applicable decision-making procedure, which may actually have served as an incitement to establish the action programmes in a legally binding instrument. Furthermore, this specification of the decision-making procedure entails that the choice of the legal basis for action programmes may also not always be undisputed. Case 242/87 Commission v Council provides a clear example of the legal basis conflicts that may occur in this respect.64 It concerned the European Community action scheme for the mobility of university students (Erasmus), adopted by Council Decision 87/327/EEC, which was based on (ex) Articles 128 and 235 E(E)C. The Commission was of the opinion that the programme should have been adopted on the sole basis of Article 128, with which the Court agreed. It was also seen earlier in Subsection 5.2.1.3, however, that adoption of an action programme in the form of a legally binding act does not always seem possible or desirable, as some action programmes remain a soft law act in the form of, for instance, a Commission communication.65 As regards these action programmes, the above conclusion that a legal basis is provided by Article 211 third indent can also be considered to apply to them, in particular because they are quite often drafted pursuant to (the outcome of) Green and/or White Papers.

62 Respectively Decision 210/97/EC of the EP and the Council of 19 December 1996 adopting an action programme for customs in the Community (Customs 2000), OJ 1997, L 33/24 and Decision 2228/97 of the EP and the Council of 13 October 1997 establishing a Community action programme in the field of cultural heritage (Raphael programme), OJ 1997, L 305/31. 63 See Subsection 3.4.1 on this provision. This was done in the case of various programmes to combat poverty and social exclusion, adopted by Council decisions. For instance, Council Decision 89/475/EEC establishing a medium-term Community action programme concerning the economic and social integration of the economically and socially less priviliged groups in society (the ‘Poverty 3 programme’), OJ 1989, L 224. 64 Case 242/87 Commission v Council [1989] ECR–1425. See also Subsection 8.3.2 on this case. 65 It may also be in the form of a Council resolution, but these appear to be growing rarer. This may have something to do with the extension of competences by the TEU, as a result of which recourse to this instrument has become less necessary.

312 7.3.4

Legal Issues of Community Soft Law Interpretative and Decisional Instruments

It is also the Commission that makes use of interpretative and decisional instruments. As established in Section 5.3, a characteristic of Community interpretative and decisional instruments is that they are adopted without the indication of an explicit legal basis.66 Thus, insofar as the Commission deems that the principle of conferred powers applies at all to the adoption of interpretative and decisional instruments, it seems to assume that it has a rather general competence to adopt them. I will now examine the extent to which this is indeed the case. In legal writing, the question of the legal foundation of the use of interpretative and decisional instruments has attracted more attention than that of other soft law instruments. Sometimes it is considered that these instruments can be regarded as opinions in the sense of (now) Article 211 second indent EC.67 Melchior, in one of the earliest contributions on these instruments, looked at this question more closely and concluded that: On pourrait soutenir que le pouvoir de décision individuelle reconnu à la Commission implique la reconnaissance dans son chef d’un pouvoir, réglementaire ou d’une portée analogue, lui permettant de circonscrire et de réduire a priori la marge d’appréciation discretionnaire inhérente à ce pouvoir individuelle.68

At the same time, however, he also formulates two arguments that plead against such a recognition of the competence to draw up communications and notices, implied in the implementing powers of the Commission and in particular in its power to apply Community law in an individual case. His first argument is that although the Treaty acknowledges the usefulness of such acts of a general scope, it leaves their adoption to the Council and not the Commission.69 The adoption of these acts by the Commission would therefore amount to misuse of powers. This would only be otherwise if the Commission and the Council had concurring powers in this respect. His second argument is that the national administrative law of the Member States would not accept the recognition of a regulatory power merely derived from or implied in an individual decision-making power. In particular, he considers it an established principle that the power to decide in an individual case entails that this case has to be assessed on its own merits and that the prior establishment of general rules to be 66 This is also in fact one of the main characteristics of national administrative rules of certain Member States, such as the Netherlands (van Kreveld (1983)), the UK (Macrory in Winter (1996) (c)) and Germany (Adam (1999)). 67 Cf Bleckmann (1988), p 963. 68 Melchior (1979), p 253. 69 See (ex) Articles 87 and 94 EC.

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applied in an individual case, limiting the institutions’ discretionary power, cannot be reconciled with this.70 Yet, such an ‘implied-powers’ rule of interpretation is indeed accepted and applied in both national and international law and also in Community law.71 In the Community law context, this has been the case in particular in the sphere of external relations. In the institutional sphere, it has been argued that its role and application should be limited, in particular because the powers of the Community institutions have been carefully determined and defined in the Treaty.72 Others, however, have pleaded for a teleological interpretation of institutional Community law as well, considering such an interpretation to be inherent to the system of the Treaty and necessary with a view to realising the objectives of the Treaty and the effet utile of Community law.73 In fact, the Court’s approach in the framework of preparatory instruments demonstrates, in itself, that the Court also accepts the implied-powers reasoning in the institutional sphere. As regards the Commission’s interpretative and decisional instruments, in more recent legal writing the prevailing view has been that such a general regulatory power is in fact implied in the implementing powers given to the Commission, in particular in the area of competition law and state aid, and that nothing stands in the way of such a recognition. Triantafyllou for instance considers that the communications adopted by the Commission in these areas ‘sont la manifestation de son pouvoir de diriger sa propre activité dans la mesure ou elles prédéterminent son action’. He recognises that the rules thus established do not have a specific legal basis, but deems that (now) Article 211 first indent EC can serve as a general foundation of competence for several activities. According to this provision, the Commission shall ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied.

In particular, he considers this task of the Commission and its direct application of primary and secondary Community law in concrete cases to constitute the domain of the Commission.74

70 Melchior

(1979), p 253. Quite paradoxically, however, Melchior at the same time acknowledges that the use of Commission communications is legitimate, because not contrary to the institutional nature of the Commission and in conformity with the Treaty system, p 254. On national approaches in this respect, see also Subsection 10.2.1. 71 Case 8/55 Fédéchar [1955] ECR 201. 72 Cf Kapteyn and VerLoren van Themaat (1995), pp 151–52. Cf also Lauwaars and Timmermans (1999), p 70. 73 Bleckmann (1979), p 239 ff. See also Section 9.2 on this issue of interpretation. 74 Triantafyllou (1997), p354. Cf also Gardeñes Santiago (1992), pp 942–943 and Winter (1996) (a), p 712, Rawlinson (1993), p 60.

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In recent years, the ECJ and the CFI have had to address the question of competence to adopt interpretative and decisional acts.75 This case law indicates that they have indeed accepted the implied-powers reasoning in relation to institutional powers as well, which can in fact be seen as a concrete demonstration of the aforementioned teleological approach. In particular, from this case law it can be derived that the use of decisional instruments must be seen in the framework of the exercise of the Commission’s implementing powers. At first, the Court recognised this only in the area of staff cases. In its judgment in the De Santis v Court of Auditors Case, for instance, it held, with respect to internal decisions governing the exercise of the discretion conferred on the Commission by the Staff regulations, that there is in principle nothing to prevent the Commission from adopting such acts.76 Since then, similar reasoning has been used in other types of cases also involving the exercise of discretionary power. The first case in this respect appears to be the IJssel-Vliet Case.77 In response to the first question, which explicitly concerned the question whether the Commission was competent to establish guidelines,78 the Court held that the Commission, in exercising its powers under Articles 92 and 93 of the Treaty, could adopt guidelines requiring compliance, not only with criteria pertaining exclusively to competition policy, but also with those applicable in relation to the common fisheries policy, even if the Council had not expressly authorized it to do so. (para 34 — emphasis added)

Thereby, the Court recognised the possibility of adopting not only individual decisions in the framework of the enforcement of these Treaty provisions, but also acts of a general nature. In Case C–169/95 Spain v Commission,79 the Court implicitly recognised the competence of the Commission to adopt decisional rules, within the limits of its discretionary power and subject to the standard procedures of Community law in certain sectors. Thus, after pointing at the discretionary powers of the Commission which it derives from Article 92(3) (now 87(3)) EC, the Court held that: The Commission has on a number of occasions informed the Member States of the policy which, in accordance with the powers thus vested in it by 75 In

view of the type of cases dealt with by the CFI, in particular in the area of competition law, it is the court more likely to be confronted with this question. 146/84 De Santis v Court of Auditors [1985] ECR 1723, para 11. Case T–2/90 Ferreira de Freitas v Commission [1991] ECR II–103, para 61. 77 Case C–311/94 IJssel-Vliet [1996] ECR I–5023. 78 The second question was whether the Member States were obliged to apply them, and if so, on what basis. See Subsections 6.6.3 and 6.6.4 on this question. 79 Case C–169/95 Spain v Commission [1997] ECR I–315. 76 Case

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Article 92 et seq. of the Treaty, it intended to apply with respect to regional aid schemes — inter alia in its 1988 communication on the method for the application of Article 92(3)(a) and (c) to regional aid … , referred to in its decision to initiate the procedure in respect of the aid in issue in the present case … 80

In its judgment in Case C–443/97 Spain v Commission regarding the ‘Internal guidelines concerning net financial corrections in the context of the application of Article 24 of Regulation (EEC) No 4253/88’, the Court shed yet more light on this matter, holding that: Under Article 24(2) of the coordination regulation, the Commission is empowered to reduce or suspend assistance in respect of the operation or measure concerned if the examination referred to in Article 24(1) of the regulation reveals an irregularity or a significant change affecting the nature or conditions for the implementation of the operation or measure for which the Commission’s approval has not been sought. [para 30] That being so, there is nothing to prevent the Commission, for the purpose of assuming fully the power referred to in the paragraph above, from adopting internal guidelines concerning financial corrections to be made when applying Article 24 of the coordination regulation, and from entrusting the departments concerned with the task of applying them. (para 31 — emphasis added)

The Court clearly derives the competence to adopt internal guidelines from the Commission’s underlying competence on the basis of Article 24 of the regulation. In the event of it having such a competence, there is nothing to prevent the Commission from adopting internal rules.81 Furthermore, even though this case explicitly concerned ‘internal’ guidelines, this conclusion can be assumed to apply for other guidelines as well, since these internal guidelines are obviously considered also to have external effects. This follows from the subsequent observations of the Court that: On the contrary, those guidelines contribute to ensuring that, when the Commission takes decisions pursuant to that provision, the Member States 80 Para

19 thereof. The subsequent paragraphs (20 to 25) hold that the considerations of the Commission, which were also based on the communication, are not irreconcilable with the aim of Article 92(3)a and that the Commission did not exceed the boundaries of its discretionary power. 81 Case C–443/97 Spain v Commission [2000] ECR I–2415. Cf also Case C–75/97 Belgium v Commission [1999] ECR 3671, para 56 concerning state aid guidelines and Case C–382/99 the Netherlands v Commission [2002] ECR I–5163 concerning the state aid De Minimis Notice, para 24.

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or the authorities designated by them benefit from identical treatment in comparable situations. Also, such guidelines are likely to strengthen the transparency of individual decisions addressed to Member States. (para 32 — emphasis added) The internal guidelines thus indicate the general lines along which, pursuant to Article 24 of the coordination regulation, the Commission envisages subsequently adopting individual decisions whose legality may be challenged before the Court by the Member State concerned in accordance with the procedure laid down by [ex] Article 173 of the Treaty. [para 33]

Thereby, the Court not only establishes unequivocally the Commission’s competence to adopt such guidelines, by considering it implied in the power specifically given to it, but even seems to applaud the exercise of this competence. At least, it is clearly convinced of the beneficial effects of decisional acts for external parties — and hence of their usefulness and desirability — in the sense of contributing to ensuring equal treatment and a transparent application of the law in individual cases.82 At the same time, it recognises the possibility of annulment of individual decisions taken on the basis thereof, and thus legal protection is ensured.83 The case law of the CFI also gives proof of the recognition of this competence, implied in a power specifically given to the Commission, and in even more explicit terms. Thus, in the Ducros v Commission Case84 it held that: Article 92(3) of the Treaty confers on the Commission a wide discretion to allow aid by way of derogation from the general prohibition laid down in paragraph (1) of that article, inasmuch as the determination in such cases of whether State aid is compatible with the common market raises problems which make it necessary to examine and appraise complex economic facts and conditions. In the exercise of that discretion the Commission may lay down for itself guidance for the exercise of its discretionary powers by way of documents such as the guidelines in question, provided that 1) they contain directions on the approach to be followed by that institution and 2) do not depart from the Treaty rules (emphasis added).85

As such, the Community courts can be said to have rejected the second argument put forward by Melchior, ie that recognition in EC law 82 Cf also Schwarze (1976), p 72. 83 See further also Chapter 10 on

the application of such acts in individual cases and the role played in this respect by transparency, legal certainty and equal treatment. 84 Case T–149/95 Ducros v Commission [1997] ECR II–2031. 85 Point 6 of the summary of the judgment. See also para 61. In a number of other cases, the CFI has clearly confirmed this standpoint: Case T–214/95 Vlaams Gewest v Commission [1998] ECR II–717, para 89; Case T–16/96 Cityflyer Express v Commission [1998]

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of a regulatory power merely derived from or implied in an individual decision-making power would not be possible because it would not be accepted in the national legal systems of the Member States.86 Furthermore, it also appears that his first argument — misuse of powers — was set aside by the CFI in its judgment in Joined cases Freistaat Sachsen and Volkswagen v Commission.87 The CFI here considered that the competence of the Council to adopt all regulations for the application of Articles 92 and 93 (now 87 and 88) EC, as this ensues from Article 94 (now 89) EC, is not affected when the Commission applies operational criteria established beforehand in the framework of the exercise of its broad discretionary power.88 In doing so, it rejected the argument of infringement of the institutional balance and in fact concluded that the Commission and Council do indeed have, to some extent at least, concurring powers in this respect. Hence, as regards decisional instruments, the conclusion must be that the competence for their adoption lies within the implementing powers of the Commission. The Commission’s own power of decision pursuant to Article 211 third indent EC, and the way in which this has been expressed in separate Treaty provisions giving the Commission decisionmaking power in individual cases, entail that the Commission may also adopt acts of a general nature structuring the exercise of this decisionmaking power. Furthermore, the adoption of such acts can also be seen in the light of Article 211 first indent. As regards interpretative acts, Article 211 first indent can be considered in particular to encompass the Commission’s competence to adopt these. This provision imposes on the Commission the task of ‘guardian of the Treaty’. This is expressed in particular in the task given to the Commission in the framework of the enforcement action, which is laid down in Article 226 EC. However, it is not satisfactory to confine this task to the possibility of the Commission ensuring the control of the application of Community law. Firstly, this is a control that can only be exercised when the damage has already been done (the actual infringement of Community law by a Member State). Secondly, it is a control related to individual cases only. As such, it cannot ensure more generally the correct and uniform application of Community law; it places a

ECR II–757, para 57; Case T–380/94 AUIFASS [1996] ECR II–2169, para 57; Joined cases T–132/96 and T–143/96 Freistaat Sachsen and Volkswagen v Commission [1999] ECR II–3663, para 209. 86 One

can also in fact question the extent to which this can (still) be said of the national administrative law of the Member States; in Dutch law for instance it is not rejected. See further also Subsection 10.3.1. 87 Cf also the above quotation from Case C–311/94 IJssel-Vliet [1996] ECR I–5023. 88 See its para 241.

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heavy burden on the administrative capacity of the Commission and can take up a lot of time. Given that the Commission has been assigned the ‘guardian’ task in a general way in Article 211 first indent EC, it can be argued that the Commission is empowered also to take other measures necessary to ensure compliance with Community law and to enable it properly to fulfil this task. More particularly, the Commission should be considered empowered on this basis to take not only re-active but also pro-active measures, aiming at the prevention of infringements in the first place. Thus, this provision must be considered to empower the Commission to take not only measures of an individual nature, but also measures of a general, preventive nature. 89 Consequently, here again the power of the Commission can be considered to be implied in its control function. Following on from the above, one may also wonder to what extent one can actually speak of a duty of the Commission to make use of interpretative and in particular decisional instruments, with a view to the proper fulfilment of its tasks and exercise of its competences. Certain Member States would probably consider such a duty to be too far-reaching,90 but in legal writing the existence thereof has not been ruled out.91 In my view, the institutional framework would require some amendments before such a duty could be concluded to exist. This issue will be discussed in Chapter 11. Nonetheless, it must be noted that in certain cases the Council has actually imposed a duty on the Commission to adopt recommendations and guidelines, with a view to ensuring the correct and uniform application of Community law.92 A very clear example of this can be seen in Directive 2002/21/EC of the EP and the Council on a common regulatory framework for electronic communications networks and services (Framework Directive). Its Article 15 thus provides that ‘the Commission shall adopt a recommendation on relevant product and service markets’ and that the Commission shall publish ‘guidelines for market analysis and the assessment of significant market power’.93

89 Cf also Adam (1999), pp 94–107, who in addition has looked at other possible foundations,

but has only acknowledged the possibilities mentioned here. Sometimes this competence is also linked to the obligation of cooperation, established in Article 10 EC, for instance by Gardenes Santiago (1992). 90 See Subsection 10.3.1. 91 Cf Meier (1990). 92 In Section 5.3 it was observed that this is in fact one of the main objectives of the use of interpretative and decisional instruments. 93 OJ 2002, L 108/33.

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CONCLUSIONS

I started this chapter by indicating why the question of competence to adopt soft law instruments is actually relevant, and by presenting a number of arguments pleading for the applicability of the principle of conferred powers in this respect. The conclusion that can be drawn from the subsequent examination is that the principle of conferred powers does indeed also apply in the case of adoption of Community soft law. This does not, however, concern the principle of conferred powers in its function of principle of legality, but rather in one or more of its other functions.94 Depending on the instrument at issue, the applicability of this principle has been seen to be expressed in different ways. Most importantly, where the Treaty has not provided for the explicit power to adopt soft law acts, the Court has established the legal foundation for this applicability in particular through the theory of implied powers. Similar reasoning can be applied to other types of soft law instruments, in respect of which this has not (yet) been established by the Court, in particular Council recommendations and Commission interpretative instruments. Thus, as regards Commission recommendations, it has been established that Article 211 second indent EC expressly confers the power on the Commission to adopt them. The Treaty does not contain any such provision for the adoption of Council recommendations, but in my view Article 202 second indent EC may be interpreted as implying this competence. Identification of the legal basis in this respect serves in particular the purpose of protecting the division of competences between the Member States and the EC. Where the Treaty provides for a specific legal basis for the adoption of — Commission or Council — recommendations, considerations of legal protection, democracy and institutional balance or protection of division of competences between the Community institutions may require the identification thereof, in particular where the Treaty also provides for the procedure to be followed and/or certain (legal) consequences. As regards the other categories of soft law instruments, which are not provided for by the Community legal system as such, it has been seen that the competence to adopt these has been established by means of the implied-powers reasoning. This applies in particular for the Commission preparatory and decisional instruments, which the Commission may use in the frameworks of respectively its role in the decision-making process 94 The

viewpoint expressed by some authors that the principle of conferred powers does not apply to soft law instruments appears to arise, partly at least, from a restrictive interpretation of this principle, that is to say, merely equating it with the principle of legality. Cf for instance van Ooik (1999), p 34.

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and its implementing powers. Thus, a specific legal basis is not required for the adoption of soft law; it is sufficient that one can speak of a power implied in another power or task that has been specifically assigned to a Community institution. In my view, the ‘implied-powers’ manner of proceeding certainly has its advantages. The principle of conferred powers is applicable, thus making the use of soft law more controllable than if it were not applicable, yet without imposing the burden of identifying a specific legal basis. At the same time, this requirement makes clear that the adoption of soft law is neither unconditional nor unlimited. Thus, it is possible to verify whether the Commission and Council soft law acts have remained within the limits of the objectives of the Treaty, and within the limits of the powers and tasks assigned to them. This contributes to the legitimacy of Community law. Furthermore, the obligation to adopt preparatory and informative instruments, laid down in the Protocol on subsidiarity and proportionality, can be applauded in respect of the effort to make the Community operate more effectively, democratically and transparently. Yet, it has also been seen that the way in which this (merely moral) obligation has been given shape leaves much to be desired, in particular the modalities of this consultation process. Consequently, future Treaty amendments should aim at making the necessary adaptations of this process, and should establish an unequivocal legal obligation in the EC Treaty itself.95

95 The

need for ‘regulating’ the consultation process was also recognised in the White Paper on European Governance. See Subsection 11.4.2.1 on the action that by now has been taken.

8 Indirect Legal Effects for the Legislature 8.1

INTRODUCTION

T

RUE’ COMMUNITY SOFT law acts, which do not fulfil the conditions for legally binding force as set out in Chapter 6, are not without effect in the national legal order. These effects may vary quite considerably from one Member State to another and as to their — legal or de facto — nature. For instance, Community soft law can become legally binding as a result of its transposition into national legislation. ‘

To illustrate, this was the case in Belgium as regards the Commission Code of Practice on the implementation of equal pay for work of equal value for women and men, which was transposed into national law by way of a Royal Decree. Other Member States merely inserted guidelines in collective labour agreements with a view to the transposition of this code.1

Of course, it would be interesting to know all the effects Community soft law actually generates in the national legal order. However, this would be quite impossible within the scope of this book, given the considerable number of Member States, the great variety of Community soft law instruments, and their widespread use in many different areas; not to mention the practical difficulties one would encounter in determining the follow-up that has actually been given to Community soft law acts, not only at the legislative, but also at the executive and judicial levels.2 A possibility would of course be to limit this exercise to examining the effects of Community soft law in a number of isolated areas where (frequent) use is made of soft law, such as sex equality law and consumer law, in a small number of Member States and at only one of the mentioned levels. However, tempting as this may be, the outcome of such an examination

1 See Martinella (1995) and Senden (1996), pp 115–17. 2 Sometimes the Commission conducts examinations and

issues reports on the national (legislative) follow-up of Commission soft law acts, but this is not a general or consistent practice.

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could hardly be considered representative and would not allow for any conclusions valid for the body of Community soft law as a whole. In fact, I consider this to be a second-stage study, which might only be conducted after consideration has been given to the more fundamental question of what Community law itself requires regarding the implementation of Community soft law. ‘Implementation’ is used here as an umbrella term, covering the issues of compliance with and transposition, application and enforcement of Community soft law:3 what rights and obligations does Community law entail in this respect for both national and Community legislative, judicial and executive authorities, and as such also for third parties? Or, what indirect legal effects4 can Community soft law instruments have on the basis of Community law, in particular as a result of the applicability of general principles of law and interpretation? In this chapter I will focus on the indirect legal effects of Community soft law for the legislature. I will start by explaining in more detail what questions of implementation are in fact raised at the legislative level (Section 8.2). Next, the indirect legal effects for the Community legislature will be discussed, especially the possible grounds for recognising an obligation of transposition of and compliance with soft law. For instance, when the Council wishes to adopt a regulation, is it required to consider in its drafting the resolutions or other acts that it has adopted at an earlier stage (Sections 8.3 and 8.4)?5 I will then examine the duties that Community soft law possibly imposes on the national legislature (Section 8.5). The chapter will end with some conclusions assessing the outcome of that examination in the light of the aim of enhancing the legitimacy, effectiveness and transparency of Community action (Section 8.6).

8.2 IMPLEMENTATION ISSUES OF COMMUNITY SOFT LAW FOR THE LEGISLATURE

In addition to the questions explored in the previous chapter concerning what powers the Commission and the Council have as regards the adoption of soft law, and whether there can even be a duty for them to adopt soft law, one may also wonder what duties Community law imposes on the Community legislature as regards the implementation of Community soft law. Implementation of Community soft law at the

3 Cf also Prechal (1995), pp 5–6 for this definition. 4 See Subsection 6.2.2 on the notion of ‘indirect legal effects’. 5 Cf Case C–4/96 NIFPO [1998] ECR I–681, discussed below in

Subsection 8.4.1.

Indirect Legal Effects for the Legislature 323 Community legislative level concerns the issues of ‘transposition’ and compliance therewith. ‘Transposition’ is in inverted commas because this term is usually reserved for the process of transforming Community law into national law, whereas in this context I use it to denote the process of transforming Community soft law into Community hard law. The central issue is then whether in a certain case the adoption of a soft law act is sufficient, or indeed appropriate at all, or whether the legislature has to go further and adopt legislation on some legal ground. As such, this also concerns the important issue of what — additional — limits Community law actually imposes as to the power and freedom of choice to adopt soft law instead of legislation, which has already been raised at various other points (Section 8.3).6 As regards preparatory instruments, the issue of transposition arises in the sense of developing the (legislative) action announced therein. This applies in particular to action programmes, and possibly also White Papers, with regard to the development and adoption of the (proposals for) legislation that they announce. In this respect, it must (again) be recalled that action programmes are adopted in different ways,7 which leads to their having different legal statuses. When action programmes have been adopted by an Article 249 EC decision or regulation, their contents will obviously have to be further implemented because these instruments have been attributed legally binding force. The focus here will be on those programmes that have remained Commission acts or have been adopted only by means of a Council decision sui generis or a resolution. As regards interpretative, decisional and steering instruments, the issue of transposition relates to their contents and arises in particular where their use raises doubts and should be seen as a temporary solution. This may be the case for instance when a Commission soft law act aims in fact at having legally binding force but the Commission lacks the competence to impose binding rules, or when the Commission does not propose legislation although there is a clear need or desire and also a legal basis for this. The area of public procurement provides just one example in this respect. The directives concerning public procurement contracts do not apply to complete forms of privatisation. Yet, in some notices the Commission deals with the different forms of privatisation that aim to remove government activities and property from the protected government setting, with a view to exposing them to the competition on the market. It is difficult, however, to understand

6 See 7 See

the limits identified earlier in Subsections 3.6.1.2, 6.5.5.2 and 7.3.3. Subsections 5.2.1.3 and 7.3.3.

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why this is not covered by the existing directives. The transposition of these soft law arrangements into legislation is called for, possibly by way of amendment of the aforementioned directives.8

A subsequent question is then whether, in the framework of such transposition, and in the development of new legislation more in general, the Community legislature should take account of existing Community soft law. This concerns the issue of compliance. For instance, can a Council resolution limit the Council’s legislative discretion, from a substantive point of view, on the basis of a principle such as legitimate expectations (Section 8.4)? At issue at the national legislative level are the possible requirements that Community law imposes on the national legislature and perhaps also national regulatory authorities, as to the transposition of and compliance with Community soft law in national law and policy. In this context, transposition is taken to mean the transformation of Community soft law into provisions of national (hard) law.9 The compliance question concerns in particular the extent to which the national authorities should take account of Community soft law in the development and drafting of national law and policy, also when the latter are not specifically designed with a view to the transposition of Community soft law. Does the principle of Community loyalty in particular impose such obligations of transposition and/or compliance? These questions arise not only in respect of — steering — soft law instruments that are addressed to the Member States and may in fact often be aimed at transposition in the national legal order (eg recommendations), but also in respect of interpretative and decisional soft law instruments that accompany or supplement for instance EC directives (eg communications, guidelines) (Section 8.5). In this context, the example of the Notice on the application of the competition rules to the postal sector discussed in Chapter 6 can be recalled here. That notice was adopted on the same day as the Directive on postal services. Should the national legislature, in the framework of the transposition of that directive, take account of and comply with the rules which the Commission has established in the notice?

So, the following examination will address, at both the Community and the national legislative level, the effect of Community soft law on the development of new legislation and policy, as a result of Community law requirements. 8 See in this sense Manunza (2001), pp 236 and 356–59. 9 Cf Prechal (1995), pp 5–6 in the same sense in respect

of directives.

Indirect Legal Effects for the Legislature 325 8.3

8.3.1

‘TRANSPOSITION’ OF SOFT LAW BY THE COMMUNITY LEGISLATURE

Possible Grounds for an Obligation of Transposition

The SFEI Case10 throws some light on how the Community institutions may themselves view the issue of transposition, in this case of preparatory acts. It concerned a complaint made by SFEI, seeking a declaration that La Poste, the French Post Office, had acted contrary to Article 86 (now 82) EC. The Court recalled in its judgment the grounds on which the Commission had rejected this complaint in its decision, in particular the following: [T]he Green Paper on postal services in the single market and the Guidelines for the development of Community postal services … address inter alia the principal problems raised in SFEI’s complaint. Although those documents contain only proposals de lege ferenda, they must be taken into consideration in particular in assessing whether the Commission is making appropriate use of its limited resources, especially whether they are being put to use in developing a regulatory framework concerning the future of the postal services market rather than investigating on its own initiative alleged infringements which have been reported to it. (para 9 — emphasis added)

Apparently, the Commission is of the opinion that its way of acting is guided by the contents of the Green Paper and the guidelines and that it has to develop a regulatory framework when this is envisaged by those documents. However, the Commission refrains from indicating why it considers its hands to be tied; does it feel merely morally obliged11 or is it also legally obliged to direct its actions and resources to putting forward (concrete proposals for) such a regulatory framework? As observed above in Section 8.2, the question of ‘transposition’ entails the examination of whether there can be a legal obligation for the Community legislature to transpose Community soft law and thus to adopt legislation. The standards for the assessment to be carried out in the framework of an action for failure to act, provided for by Article 232 EC, can be taken as a starting point for this examination; when can the Community legislature possibly be held liable for not proceeding to adopt legislation?

10 Case C–119/97 P SFEI [1999] ECR I–1341. 11 Cf Case 105/75 Giuffrida [1976] ECR 1395,

para 17, in which the Court recognised (at the executive level) that the Council can be under a moral obligation to comply with an (internal) memorandum in the interests of proper administration. See also Subsection 10.4.1.

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According to Article 232 EC, Member States, the Community institutions and natural and legal persons12 can bring an action against the EP, the Council or the Commission if these fail to act, ‘in infringement of this Treaty’. The general view is that this must be interpreted broadly, in particular that there must be infringement of an obligation to act based on Community law.13 Such an obligation to act exists, firstly, when the EC Treaty or secondary legislation14 clearly imposes such an obligation. Secondly, it is generally understood that an obligation to act can also ensue from general principles of law.15 For our purposes, this means that grounds for an obligation to adopt legislation and/or to transpose Community soft law into legislation can be found either in the Treaty or secondary legislation, or in general principles of law. These grounds will now be considered in turn.

8.3.2

An Obligation on the Basis of the Treaty or Secondary Legislation?

It follows from the discussion in Subsections 3.4.1 and 6.5.4 that, firstly, EC legislation can only be adopted when a legal basis for it can be identified in primary or secondary Community law. Consequently, an obligation to transpose soft law acts cannot exist if this would involve contravention of the principle of legality. This is illustrated by Case 242/87 Commission v Council,16 concerning the Erasmus action scheme adopted by way of a Council decision sui generis. According to A-G Mischo, the Commission had to put the Erasmus scheme into effect, in accordance with the annex to the decision. At the same time, however, he indicated that the scheme could not be further developed into hard law if the competences of the Community to adopt legislation are deficient or questionable. In particular, he wondered whether the Council’s power to lay down ‘general principles for implementing a common vocational training policy’ entailed the power to adopt a Community action scheme comprising concrete operations of the Commission which involved direct contact between the institution responsible for administering the scheme and universities, university

12 Albeit

natural and legal persons under more stringent conditions, comparable to some extent to those of Article 230 EC. See on this Albors-Llorens (1996), p 213 ff. 13 Schermers and Waelbroeck (1987), pp 222–223. Case 13/83 EP v Council [1985] ECR 1513, point 4 of the summary. See also Subsection 7.3.1. 14 Cf Schermers and Waelbroeck (1987), p 223 and Cras (2000), p 96. 15 Albors-Llorens (1996), p 212, Schermers and Waelbroeck (1987), pp 225–26. Cf also Barav (1975), pp 53–71 and Toth (1975), pp 65–93. 16 Case 242/87 Commission v Council [1989] ECR 1425.

Indirect Legal Effects for the Legislature 327 associations etc and which were to be implemented by the Commission cooperating directly with universities and teachers.17 Secondly, whether or not a duty of transposition can exist will also depend on how the Community law provision providing such a legal basis has been formulated and in particular on the discretion it leaves to the institution as to the choice of instrument. The more discretion a provision leaves, the more scope there is for application of the subsidiarity and proportionality principles, hence the less scope there may be for establishing a duty of transposition. In addition to the observations made earlier in Subsection 3.6.1.2, a distinction can be made here between ‘obligating’ legal basis, ‘enabling’ legal basis and ‘in-between’ legal basis. As I will explain below, only where an ‘obligating’ legal basis for legislation exists and merely soft law is used, may one in my view assume that there is an infringement of the obligation to act and a duty to adopt legislation. At one end of the spectrum, then, are ‘obligating’ legal basis provisions, that is Treaty or secondary law articles providing that the Council or another institution ‘shall issue directives or regulations’ or the like, such as Article 40 EC in respect of the free movement of workers. In that case, the institutions are clearly put under an obligation to take action and this in a specific, legally binding form. Leaving no discretion to the adopting institution, this kind of provisions can be said to constitute an ‘obligating’ legal basis; where the Treaty specifies a legislative instrument and thus also expresses the need for Community legislation, this must be considered to imply an obligation to proceed to the adoption thereof. In this context, soft law can only be considered a temporary solution, a useful leg up to legislation. Simply to use soft law would go against the intention of the Treaty drafters and hence against the realisation of the aims and objectives of the Treaty in the way it envisages.18 Clearly, this category of provisions leaves no room at all for the application of the subsidiarity and proportionality principles, as the Treaty drafters themselves have already chosen the appropriate level of action and the form in which this action must be cast.19 At the other end of the spectrum are ‘enabling’ legal basis provisions, according to which the Community institutions ‘may take appropriate action’, or containing similar terms. Article 13 EC is a clear example of this, as it merely allows for the adoption of legislation with a view to combating discrimination on a number of grounds. As such, this provision leaves a lot of discretion to the Council and in particular it leaves open the

17 Points 8 to 12. 18 This view does not seem to be generally accepted. Cf van Ooik (1999), p 276, who observes

that whoever is allowed to do more, may also do less. 19 Room is only left for application of the proportionality principle as regards the intensity of the contents of the act to be adopted.

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possibility for the Council not to adopt any measures at all, whether of a hard law or soft law nature.20 So, ‘enabling’ legal bases do not impose any legal obligation on the Community institutions to adopt legislation or even soft law acts, and thus leave full room for the application of the subsidiarity and proportionality principles. As a consequence, it will be difficult to conclude that soft law acts falling within the scope of ‘enabling’ legal basis provisions have to be transposed into legislation. Between these two extremes, one also finds numerous provisions saying that ‘the Council shall adopt measures’ or containing similar terms. These are ‘obligating’ in the sense that Community measures have to be adopted, but ‘enabling’ when it comes to their form and legal nature — binding or non-binding, as they are silent on this. The provisions of Title IV of Part III of the EC Treaty on visa, asylum and immigration, inserted pursuant to the Treaty of Amsterdam, provide a very clear example of such ‘in-between’ legal bases.21 This category of provisions is the most complicated one with respect to our examination, as on the one hand they impose on the EC an obligation to act, but on the other leave considerable room for in particular the application of the proportionality principle as regards the form this action must take. In fact, whether or not there can be an obligation of transposition and thus of adoption of legislation in this respect depends very much on the objective of the provisions in question. This is already evident from the Court’s reasoning in the Noordwijks Cement Accoord Case, although this case concerned the question of whether a certain individual act constituted a formal decision or a mere opinion, and not as such whether legislation had to be adopted. The Court’s judgment makes clear in particular that even if the wording of a Community law provision leaves open the nature of the act to be taken, the Community institutions can not haphazardly make the choice between binding or non-binding action. In particular, the Court held that: Neither the fact that the word ‘Decision’ is not used in Article 15(6) [of Council Regulation No. 17 — LS], nor the fact that the procedure provided for therein is of a preliminary nature justifies the conclusion that the Commission is empowered to proceed by a mere opinion, especially since the words ‘deliver an opinion’ are not found in the said provision either. The silence of the text in a matter which affects the protection of the rights of individuals cannot be construed in the manner most unfavourable to them. … Therefore it is not possible to find, either in the absence of any 20 Meanwhile, however, the Council has adopted two directives on the basis of Article 13 EC:

Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000, L 180/22 and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000, L 303/16. 21 See also note 28 below.

Indirect Legal Effects for the Legislature 329 express reference in Article 15(6) to one of the measures set out in [ex] Article 189 of the Treaty or in the preliminary nature of the Commission’s examination, sufficient grounds for excluding the necessity for a Decision.22

This quotation makes clear that even if the legislature has not explicitly chosen a hard law instrument, this does not mean that the adoption thereof may not be required; the institutions are obliged to choose the most appropriate instrument, that is the one most apt to attain the objectives of the measure in question.23 The Court’s judgment in the Common Transport Policy Case also illustrates this.24 The EP brought an action against the Council for failing to introduce a common transport policy, and in particular failing to lay down the framework of such a policy in a binding manner. The Treaty provisions allegedly infringed (ex Articles 74 and 75) indicated that the Council had to adopt ‘common rules’ and the ‘appropriate measures’ with a view to such a policy, without prescribing the legal instrument. The Court recognised in its judgment the possibility of alleging before it the general negligence to legislate,25 but considered at the same time that the measures which are the subject of the action must be sufficiently defined to allow the court to determine whether … the failure to adopt them is lawful. (para 36 — emphasis added)

This is an important criterion. In this case, the Court thus considered that the failure to adopt a common transport policy did not as such amount to a failure to act, since the Council had a certain discretion as regards the contents of the policy to be developed. However, it established a failure to act in so far as the absence of the common transport policy infringed the freedom to provide services, as this freedom was sufficiently defined and no discretion was left to the Council in this regard.26 The conclusion that can be drawn from this case law is that although Treaty or secondary law provisions may not prescribe in explicit terms that legislative measures have to be taken in a certain area, the objective underlying such provisions may actually impose the adoption thereof. When the establishment of a common policy is envisaged inter alia with a view to the establishment and functioning of the common market, it is clear that this objective cannot be realised with the adoption of mere soft

22 Joined

cases 8–11/66 Noordwijks Cement Accoord [1967] ECR 75. Cf also Case 5/73 Balkan [1973] ECR 1091 with respect to (ex) Article 103 and the interpretation of ‘appropriate measures’. 23 See also the question posed in Subsection 6.5.5.2. 24 Case 13/83 Parliament v Council [1985] ECR 1513. 25 Cf Schermers and Waelbroeck (1992), p 250. 26 Cf also Cras (2000), p 103.

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law. Or, in other words, where not prescribed, the form and legal nature of the Community action to be taken — binding or non-binding — can possibly be derived from the objective or substance of the Treaty or secondary law provision at issue. Of course, it will not always be clear what the precise (intended) objective or scope of a Treaty provision is,27 and therefore the necessity of legislation in a particular area may be open to debate. Moreover, views on this necessity or the scope of Treaty provisions as such may change over time, for instance as a result of Treaty amendments or interpretation by the ECJ. For instance, the new title on visa, asylum and migration is likely to lead to a discussion at least on the extent to which Community legislation is required.28 To conclude on this, an obligation to transpose Community soft law falling within the scope of ‘in-between’ Treaty provisions may only exist when it has become clear that for achieving their objective there is a need or desire for Community legislation. In this assessment, the outcome of the application of the proportionality principle is in fact decisive. A remaining question is: what if the matter at issue is one in respect of which the Treaty provides explicitly and solely for the adoption of a Community soft law instrument (recommendation or opinion); can one then speak of a ‘prohibiting’ legal basis, in the sense of precluding the Community institutions from adopting legislation? Examples of such provisions are Articles 149(4) and 151(5) EC, relating respectively to education and culture. It can indeed be considered undisputed that at least on that particular legal basis the adoption of eg a directive is excluded.29 Yet, does this also entail that the institutions must refrain from adopting legislation in these areas by choosing a general legal basis such as Article 308 EC? Older case law indicates that the fact that a specific Treaty article provides for the adoption of recommendations does not mean that no other, general legal basis, such as (now) Article 308 EC, can be chosen for the adoption of legally binding measures.30 Yet, in view of the various Treaty amendments that have taken place over the years, I would argue that as a rule it will now be contrary to the Treaty and also to the principles of subsidiarity and proportionality to adopt legislation on that general legal basis if the specific basis is in fact the appropriate one to choose. In particular, the importance of general legal basis provisions has decreased with 27 Cf Hartley (1996), p 279, who considers that Member States often have no common intention

and are only united in their agreement to adopt a certain formulation. 28 For the time being, the open coordination method plays an important role in this area. See the Communication of the Commission to the Council and the European Parliament on an open coordination method for the Community immigration policy, COM(2001)387 final, 11 July 2001. 29 See in this sense von der Groeben et al (1991), p 4951 and van Ooik (1999), p 279. 30 Cf Case 8/73 Massey-Ferguson [1973] ECR 897.

Indirect Legal Effects for the Legislature 331 the introduction of more specific legal basis provisions, which in most cases actually increase the freedom of the institutions to choose the instrument. So, where Treaty provisions do indicate the instrument to be adopted, this choice must in fact be considered to be a deliberate one, not to be circumvented by the use of a general legal basis leaving greater freedom of choice.31

8.3.3 8.3.3.1

An Obligation on the Basis of General Principles of Law? Conflicting Principles

The story does not end there, however; the subsidiarity and proportionality principles are not the only principles determining the way in which the institutions must make use of the discretion left to them by the Treaty and secondary legislation as to the choice of the form of action.32 Whereas the principles of subsidiarity and proportionality have been seen to pull in the direction of the use of soft law, at least as these are interpreted today, other general principles of law, such as legal certainty, may pull in the direction of legislation. Even where a legal basis provision leaves much scope for the application of the subsidiarity and proportionality principles, and this application leads to the conclusion that there is no need to adopt legislation, given the objective aimed at, the examination in this section will reveal that such a necessity may indeed be concluded to exist as a result of the operation of other general principles of law. The question is then how to balance these possibly conflicting principles. The general principles that come into play are both institutional (or constitutional) principles of law and principles of a substantive and procedural nature.33 Institutional (or constitutional) principles of law aim in particular at protecting the interests of the Community and national institutions.34 As such, these principles may concern the relationship between the Community institutions inter se and/or the relationship between the Community and the Member States. In particular, the Protocol on the application of the subsidiarity and proportionality principles, attached to the Treaty of Amsterdam, makes clear in this respect that the principles of

31 Cf also Subsection 3.6.1.2 and in more detail on this question van Ooik (1999), pp 279–88. Craig and de Búrca (2002), p 114 adhere rather to the Massey-Ferguson case law. 32 See also Chapter 3, in which a number of guiding principles that are of importance in this respect were established. According to the Commission, the decision to use legislation depends on the degree of technical complexity, the importance of uniformity and the need for non-discrimination and legal certainty. Cf also below Subsection 8.3.3.2. 33 Cf de Witte (2000) (b), p 27 for this distinction. 34 Cf de Witte (2000) (b), p 35.

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institutional balance, Community loyalty and effectiveness set limits to the exercising of the preference for soft law, and may pull towards the adoption of Community legislation and/or the transposition of soft law into legislation (Subsections 8.3.3.3 and 8.3.3.4). The general principles of a procedural and substantive nature aim primarily at the protection of individuals and companies. The question is whether such principles also play a role at the legislative level, in the sense of imposing an obligation to transpose Community soft law into Community legislation, as they are usually invoked only in individual cases. This question arises in particular where a soft law act raises doubts as to the legal rights and obligations it actually entails. The principles that may play a role in this respect are notably transparency and legal certainty (Subsection 8.3.3.5). The issue will first be illustrated by means of an example (Subsection 8.3.3.2). 8.3.3.2

An Example: The Re-Regulation of State Aid Law and Policy

A good illustration of the fact that both institutional (or constitutional) and substantive and procedural principles of law may induce the transposition of Community soft law into Community legislation, is provided by the re-regulation of certain aspects of state aid law and policy. As observed in Section 5.3, in this area the Commission makes regular use of communications, guidelines, frameworks etc in order to establish general rules for the application of Articles 92 and 93 (now 87 and 88) EC. Yet, its competence to do this has been repeatedly questioned, as it is in particular the Council that has been considered competent to adopt such rules.35 A number of these acts are now replaced by Council and/or Commission regulations. The following observations may shed some light on the reasons underlying this replacement. According to the preamble of Council Regulation (EC) 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty:36 (2) …the Commission, in accordance with the case-law of the Court of Justice of the European Communities, has developed and established a consistent practice for the application of Article 93 of the Treaty and has laid down certain procedural rules and principles in a number of

35 Cf Della Cananea (1993), p 73. The existence of these doubts has also been acknowledged by the Commission itself, eg in the Explanatory Memorandum of the Commission Regulation on the application of Articles 87 and 88 of the EC Treaty to de minimis aid. However, see also Subsection 7.3.4 in which the competence of the Commission to adopt these instruments was established. 36 OJ 1999, L 83/1.

Indirect Legal Effects for the Legislature 333 communications whereas it is appropriate, with a view to ensuring effective and efficient procedures pursuant to Article 93 of the Treaty, to codify and reinforce this practice by means of a regulation (3) Whereas a procedural regulation on the application of Article 93 of the Treaty will increase transparency and legal certainty (4) Whereas, in order to ensure legal certainty, it is appropriate to define the circumstances under which aid is to be considered as existing aid. …’ (emphasis added)37

Also revealing is the Explanatory Memorandum to the (draft) Commission Regulation on the application of Articles 87 and 88 of the EC Treaty to de minimis aid,38 which replaces the De Minimis Communication of 1996. This regulation is based on Council Regulation 994/98,39 which enabled the Commission for the first time to adopt regulations with a view to declaring certain categories of aid compatible with the common market and exempting them from the notification requirement as laid down in (now) Article 88(3) EC. In its Article 2, this ‘enabling regulation’ also provided for an explicit legal basis for the de minimis rule. The memorandum explains that: Together with the new Council Regulation 659/99 on State aid procedures the Commission has proposed the enabling regulation as part of its efforts to modernise the handling of State aid procedures. The main objectives of this reform process are to make the procedural framework more efficient and to improve legal certainty (emphasis added).

In the preamble to the finally adopted Commission regulation, the Commission further emphasised that in the light of the application of a de minimis ceiling in its practice, and the establishment thereof in the Notice on the de minimis rule for state aid, and with a view to increasing transparency and legal certainty, it is appropriate that the de minimis rule be laid down in a regulation. [F]or the purpose of transparency, equal treatment and correct application of the de minimis ceiling, it is appropriate that Member States should apply the same method of calculation … (emphasis added).40

In short, this area has witnessed a clear transposition of Community soft law into Community legislation, not only on the basis of considerations

37 Cf also A-G Jacobs in Case C–99/98 Austria v Commission [2001] ECR I–1101, points 22–29. 38 Draft Commission Regulation, OJ 2000, C 89/6. 39 OJ 1998, L 142/1. 40 Points 3 and 6 of the preamble of Commission Regulation 69/2001 of 12 January 2001 on

the application of Articles 87 and 88 of the EC Treaty to de minimis aid, OJ 2001, L 10/30.

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such as effectiveness, correct and uniform application of Community law and institutional balance, but also on the basis of substantive and procedural principles, such as legal certainty, transparency and equal treatment. Yet, this still has not answered the question as to when the Community institutions may actually be considered to be under a legal duty to adopt legislation on the basis of these principles. This will be considered in the following subsections.

8.3.3.3

The Principle of Institutional Balance

In Subsection 3.4.4 the principle of institutional balance was said to refer in particular to the system of distribution of powers among the Community institutions, as set up by the Treaty. Observance of the institutional balance entails that each institution exercise its powers with due regard for the powers of the other institutions. It was also observed there that the subsidiarity and proportionality principles have in fact provided the Commission with a ‘tool’ to influence the institutional balance in its favour, in that considerations or arguments of subsidiarity and proportionality may function as a cover for doubtful use of soft law, and thus enable the Commission to circumvent decision-making procedures and the involvement of other Community institutions.41 The possible danger which the application of these principles may hold for the institutional balance appears to have been recognised quite recently. That is to say, with the TEU but in particular the Treaty of Amsterdam, more safeguards were built into the decision-making process to overcome this danger, making clear that there are limits to the application of the principles of subsidiarity and proportionality. In point 2 of the Protocol on the application of the principles of subsidiarity and proportionality, attached to the EC Treaty as a result of the ToA, the Treaty drafters thus explicitly expressed the concern that this application may not endanger the institutional balance.42 Although the Protocol gives no further explanation as to how this application could actually endanger this balance, one must assume that the dangers to which it is referring include those that may in this respect go along with the preference for soft law and the resultant increasing use thereof.43

41 As seen in Section 6.5, in some flagrant instances where it has been established that soft law aimed at having legally binding force without fulfilling the conditions for this, the Court has punished this use. 42 This was already established in the Inter-institutional Agreement between the EP, the Council and the Commission on procedures for implementing the principle of subsidiarity, Bull. EC 10–1993. 43 In the same sense Prechal (1998), p 290.

Indirect Legal Effects for the Legislature 335 Consequently, it must be understood that putting this preference into practice may not go so far as to jeopardise the institutional balance, and that the use of soft law may thus be limited by the concern to preserve this balance. In other words, where this use leads to a distortion of the institutional balance, the proposal and adoption of legislation is called for. The Court has an important task in monitoring that the institutional balance is observed, a task which it seems to fulfil without hesitation and which the Protocol facilitates by making this balance a touchstone for the proper application of the principles of subsidiarity and proportionality. Article 192 EC also provides a mechanism for the monitoring of the application of the subsidiarity and proportionality principles by the Commission. This article, introduced by the TEU, provides for the right of the European Parliament to ask the Commission to put forward proposals for legislation. Although one may of course argue that the EP could always do this, it provides a ‘stick’ to encourage the Commission to make use of its right of legislative initiative and to bring it to account for any decision not to give follow-up to a request of the EP. As such, it enables the Parliament to express its disagreement, where necessary, with the way in which the Commission has applied the subsidiarity and proportionality principles and, to some extent, to protect its own role in the decision-making process. Despite the fact that the EP regularly criticises the Commission’s recourse to soft law and in fact in many of its resolutions calls upon the Commission to take legislative action, it appears to refer only rarely to Article 192 EC in this respect.44 Point 9 of the Protocol can be said to have reinforced this control mechanism, by stipulating that before exercising its right of legislative initiative the Commission should consult widely, except in particularly urgent and confidential cases and, wherever appropriate, should publish consultation documents.45 In practice, Green Papers and White Papers are the documents drafted and published in order to start such a consultation process. Action programmes (and sometimes White Papers) are then presented pursuant to this process. Although point 9 does not refer explicitly to the other institutions, these are certainly envisaged in this consultation process. As the institution that initiates legislation, the Commission thus bears an important responsibility, which presupposes that the Commission will take note of the views of interested parties on the development of law and policy in a certain area, whether issued by Community or national authorities, and whether of a public or private nature. Although the modalities of this consultation process are still far from clear, as observed in

44 At least there are very few 45 See also Subsection 7.3.3.

recorded uses of this.

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Subsection 7.3.3, this process would be a futile exercise if the Commission were not to take any account of the outcome thereof. Consequently, the Commission should be careful to undertake action or to make proposals that, to a certain extent at least, can count on the support of the other Community institutions and of society more in general. Article 192 EC and points 2 and 9 of the Protocol thus confirm the view that the subsidiarity and proportionality principles must be applied by all institutions. This is also expressed in so many words by point 1 of the Protocol.46 In view of this, it is only logical to involve all the institutions that play a role in the decision-making process at the earliest possible stage and to take account of their views in an effective way. Moreover, inter-institutional cooperation at the decision-making level has become more of a necessity during the last decade, given the changes that have taken place in the decision-making process and in particular in view of the increased role of the EP. 47 So, when the other Community institutions have stated that there is indeed a need or desire for legislation, and when this has possibly been further established in an action programme, I would argue that not to put forward proposals for legislation and merely to use soft law would endanger the institutional balance if not at the same time a satisfactory statement of reasons is given for this choice of instrument.

8.3.3.4

The Principles of Community Loyalty, Effectiveness and Equal Treatment

As was seen in Subsections 3.4.4 and 3.6.2.1, the ‘positive’ and ‘negative’ obligations imposed by Article 10 EC compel the institutions to respect the limits set by the Treaty not only out of a concern to respect each other’s powers and interests, but also with a view to protecting and achieving the Community interests as such. The principle of Community loyalty has thus been connected not only to the principle of institutional balance, but also to that of effectiveness. In point 8 of the Protocol, Article 10 EC is put forward as a touchstone to be taken into account in the application of the subsidiarity principle. Yet, this is done only with respect to Member States’ action in the event that the application of the subsidiarity principle leads to no action being taken by 46 Cf also the Inter-institutional Agreement between the EP, the Council and the Commission

on procedures for implementing the principle of subsidiarity, Bull. EC 10–1993. 47 The Inter-institutional Declaration on democracy, transparency and subsidiarity, Bull. EC 10–1993, pp 118–19 already stressed that the EP will adopt a resolution pursuant to the annual Commission legislative programme and that the Council will state its position on the programme in a declaration. A more recent development is an Annual Policy Strategy on which a dialogue will take place between the Commission, Council and EP. See further on this Craig and de Búrca (2002), pp 160–61.

Indirect Legal Effects for the Legislature 337 the Community.48 In my view, and in the light of the scope the Court has given to Article 10 EC, it would be difficult to understand or justify why this standard would not apply to Community action as well, when the outcome of applying the subsidiarity principle is that such action is indeed required. I would therefore argue that point 8 only partly spells out the limits to the application of the subsidiarity and proportionality principles, formulated in point 2 of the Protocol, which states that this application shall respect the general provisions and the objectives of the Treaty, particularly as regards the maintaining in full of the acquis communautaire and the institutional balance … (emphasis added).

These limits certainly have to be respected by the Community institutions, and in my view they also impose a duty on them to comply with Article 10 EC, as part of those Treaty provisions and objectives, and also of the acquis communautaire. The principle of effectiveness entails in particular that the institutions have to ensure the development and progress of Community law as the Treaty envisages, and to refrain from measures going against this. This obligation implies, in my opinion, that when a legal basis for legislation is present and when it has become clear that the adoption of legislation is necessary to further the aims and objectives of the Treaty, it is not sufficient to adopt acts expressing only the political will of the Community institutions and entailing no further commitment. The obligation contained in Article 10 EC thus in fact reinforces the conclusion already reached in Subsection 8.3.2, that in the case of an ‘in-between’ legal basis there can be a duty of transposition or duty to adopt legislation, determined by the objective of the provision at issue. That the application of the principles of subsidiarity and proportionality may not be at the expense of Community interests is also expressed in point 3 of the Protocol, which further presents subsidiarity as a dynamic concept. That is to say, it can also be used as a device to expand Community action if the Community interest so requires.49 Furthermore, the principle of effectiveness is again expressed in point 6 of the Protocol, as this proposes that the form of Community action shall be as simple as possible subject to the condition that it shall be ‘consistent with satisfactory 48 It

reads:

Where the application of the principle of subsidiarity leads to no action being taken by the Community, Member States are required in their action to comply with the general rules laid down in Article 5 [now 10] of the Treaty, by taking all appropriate measures to ensure fulfilment of their obligations under the Treaty and by abstaining from any measure which could jeopardise the attainment of the objectives of the Treaty. 49 See

also Subsection 3.5.2; in Article 5 EC itself this is not evident as such.

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achievement of the objective of the measure and the need for effective enforcement.’ The principle of effectiveness thus clearly imposes an additional limit to the choice of instrument and between binding and non-binding action.50 The interest of the correct and uniform application of Community law, which is one element of effectiveness,51 also induces the conclusion that binding measures should be laid down as far as possible in one of the Article 249 instruments. The Court made this clear as early as the Krohn Case, when it held that The uniform application of Community law is only guaranteed if it is the subject of formal measures taken in the context of the Treaty.52

In his opinion in Case C-325/91, Advocate-General Tesauro considered this to entail that that principle may and must be applied whenever the Treaty provides for the adoption of typical acts in the area in question.53

This confirms the view also expressed above in Subsection 8.3.2, that where a legal basis is present and provides for measures to be laid down in a certain type of legally binding instrument, this instrument is the proper one to choose. The principle of equal treatment has been said to go hand in hand with that of effectiveness, and in particular correct and uniform application;54 while this application ensures the effectiveness of Community action, at the same time it safeguards the interests of the individual by (better) protecting it from unequal treatment, since the same rules have to be applied to similar or comparable situations. In the case of soft law, however, there is no guarantee that rules will always be applied. As such, this undermines equality before the law. 8.3.3.5

The Principles of Transparency and Legal Certainty

The above example of re-regulation in the area of state aid illustrates that the notion of transparency is used to clarify and reinforce the requirements that already ensue from principles such as equality and legal certainty.55 The interest of guaranteeing legal certainty, in the sense of binding 50 Cf Senden and Prechal (2001), pp 197–98. 51 Cf also Subsection 3.6.2.1. 52 Case 74/69 Krohn [1970] ECR 451, para 9. 53 Case C-325/91 France v Commission [1993] 54 See Subsection 3.6.2. 55 See also Subsection 3.6.3.

ECR I–3283, footnote 18 of his opinion.

Indirect Legal Effects for the Legislature 339 Community law being predictable and foreseeable, and hence of legal protection, also sets limits to the choice of instrument. As early as the Gondrand Case, the Court thus made clear that this principle may require the adoption of the appropriate provisions by the Community legislature.56 In my view, this principle also requires that, as far as possible, the attempt should be made to lay down binding measures in instruments particularly designed for this, so that those to whom they are addressed are able to recognise that they are dealing with binding measures. More than that, the very fact that a non-binding act aims at creating an obligation constitutes in itself a problem of legal certainty. In view of this, I deem that whenever it appears that a soft law act aims at having binding force or raises doubts as to what rights and obligations actually flow therefrom — and thus is misleading as to the legal rights and obligations that actually exist under Community law — the principle of legal certainty calls for its abrogation, amendment or transposition into a formal legal instrument;57 even if one may, in principle, speak of lawful hard law in the clothing of soft law, as concluded in Chapter 6. The view put forward by Advocate-General Tesauro in Case C–325/91 France v Commission can be seen as support for this. He considered that the fact that [ex] Article 90(3) … gives exclusive competence to the Commission to adopt binding acts in the sector in question does not authorise that institution to do so in the most convenient form to it, for instance by adopting an act which is typically non-binding, especially since Article 90(3) makes provision solely for the adoption of directives and decisions — and therefore typical, binding acts within the meaning of [ex] Article 189.

He further observed that it does not seem to me to involve a great effort on the part of the Commission to adopt, in accordance with that which the Treaty prescribes, ‘typical’ acts with a legal basis from which it is clear and unequivocal that they are acts binding on their addressees, a fortiori where it has the power to do so … .58

Moreover, it can hardly be regarded as in keeping with the intention of the drafters of the Treaty, and their explicit insertion of a source catalogue therein, that there should be unlimited freedom to lay down measures 56 Case 169/80 Gondrand [1981] ECR (1931), para 17. 57 Cf Arnull (1990) (a), pp 228–29, who argues that whenever

a provision of national law — even a non-binding one — can be misleading as to the legal rights under Community law, legal certainty is threatened and amendment of the national law required. Case 165/82 Commission v UK [1983] ECR 3431, para 11 and Case 143/83 Commission v Denmark [1985] ECR 427, paras 8–10, indicate this indeed with regard to (non-binding) collective agreements. In my view, the same holds true for Community (soft) law provisions. 58 Case C–325/91 France v Commission [1993] ECR I–3283, para 22. See also the discussion of this case in Subsection 6.5.4.

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that aim at creating new, external and general rights and obligations in the same way as legislation, in instruments that are usually considered to be non-binding.59 Finally, one may also wonder whether legal certainty in the sense of protection of legitimate expectations might play a role in the context of the question at issue here. Thus, one might ask whether, in the case of action programmes, the Commission or the Council is compelled to transpose or implement these on the basis of the principle of legitimate expectations. Given the very few instances in which the Court has considered an appeal based on this principle to be justified, this seems unlikely, but not entirely excluded.60

8.4

8.4.1

COMPLIANCE WITH SOFT LAW BY THE COMMUNITY LEGISLATURE

In Principle a Discretion: The NIFPO Case

The next question is then whether the Community legislature is under some obligation to take account of (preceding) soft law in the development of legislation. In this respect, it must be acknowledged firstly that in general the legislature possesses a lot of discretion to modify, adapt and repeal legislation, subject to certain conditions,61 in the event that it does not have the desired effects or when the market or economic circumstances have changed. Secondly, it can be argued that in particular in the light of hierarchy of sources, this discretion of the legislature cannot be encroached upon by soft law acts. This reasoning can be considered implied in the judgment of the Court in the NIFPO Case. 62 In this case, Annex VII of the ‘Hague Fisheries Resolution’ was at stake. This annex was adopted in view of the importance of fishing activities to the Irish economy and set out the Council’s intention to apply the provisions of the common fisheries policy in such a way as to secure the continued and progressive development of the Irish fishing industry. The Northern Ireland Fish Producers’ Organisation (NIFPO) disputed that the Council had formally approved this annex, entitled Draft Council Resolution, since this annex had not been published or otherwise made available to those affected by it. According to NIFPO, the annex was the only legal basis of Regulation 3362/94, allocating cod and whiting quotas

59 Cf for a similar opinion, Hartley (1998), p 123. 60 See further Subsection 8.4.2. Cf also Temple Lang

(2000) and the discussion of the principle of legitimate expectations by Tridimas (1999), pp 169–201. 61 Such as the protection of vested rights and non-retroactivity. 62 Case C–4/96 NIFPO [1998] ECR I–681.

Indirect Legal Effects for the Legislature 341 to the United Kingdom. In short, the preliminary question referred to the ECJ was whether a regulation can be considered valid if it has been based upon an allegedly invalid resolution, such because not regularly adopted and not published. Before looking at the Court’s answer, it is interesting to present the arguments that the different parties put forward in this respect. The Council maintained that Annex VII had been formally adopted as part of the Hague Resolution on the basis of a proper written procedure. Furthermore, according to the Council, the Commission, the UK and Denmark, resolutions reflect solely the political will of the Council and are not binding acts producing legal effects that are capable by themselves of limiting the Council’s legislative powers (emphasis added).

They argued further that there is, however, nothing to prevent the Council from having regard to the principles set out in the annex when adopting a binding act such as a regulation.63 The Irish government clearly expressed an opposite view, using the other ‘Hague Resolution Cases’64 as a source of argument, in holding that the Hague Resolution is binding in nature, since it makes specific the duties of cooperation which Member States assumed under [ex] Article 5 of the EC Treaty when they acceded to the Community. Moreover, the Court has, in its case law, consistently held that the provisions of Annex VI were binding on Member States, and the same should therefore be true of Annex VII.

It deduced from this that since the Council intended to bind itself by the Hague Resolution and has consistently acted in accordance therewith, the principles of legitimate expectations and of the acquis communautaire should preclude it from departing from that resolution without Ireland’s consent. (para 28 — emphasis added)

According to the applicants, Annex VII had not been properly adopted and this consequently affected the validity of both Regulation 3362/94 and the Department’s decision of 5 May 1995. They further held that according to the case law of the Court, a Council resolution may be relevant

63 Para 29. 64 Discussed

below in Subsection 8.5.3.3.

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for the purpose of assessing the validity of a national decision adopted pursuant to that resolution. Also interesting is the opinion of Advocate-General La Pergola. He considered that the resolution had been properly adopted and that its non-publication could not have affected the validity of the measure, because resolutions do not come within the range of measures that are legally binding, which Article 191 of the Treaty requires be published in the Official Journal as a condition for their entry into force.65

He deemed them no different from recommendations and opinions in this respect and considered them to be political commitments, merely pointing forward to the establishment of future legally binding rules. He continued that the undertakings which in this case the Council assumed at the political level through Annex VII and in a Declaration of 30 May 1980, had in fact been transposed in a legally binding form by way of the adoption of a number of regulations. In response to these arguments, the Court clearly looked at the intention of the Council and the contents of the annex, and concluded that Annex VII, which expresses essentially the Council’s political will to take account, in applying the future common fisheries policy, of the special needs of regions in which the populations are particularly dependent on fishing and related activities, cannot produce legal effects capable of limiting the Council’s legislative powers. (para 31 — emphasis added) Annex VII, moreover, differs in nature from Annex VI to the Hague Resolution, which, in the particular field to which it applies, makes specific the duties of cooperation which the Member States assumed under Article 5 [ … ] Annex VI relates to the introduction of conservation measures by the Member States and the procedure to be followed in that regard and specifies, in that context, the obligations of Member States flowing from Article 5 of the Treaty. [para 32]

So, it follows clearly from this judgment that Council approval and application of the resolution do not suffice to establish a restriction of its legislative powers. Although it concerned in particular the question as to how far a resolution that has allegedly been irregularly adopted can influence the validity of another Council act, I deem that the Court’s reasoning

65 Point

56.

Indirect Legal Effects for the Legislature 343 can be considered also to apply to the question of whether ‘true’ soft law should be complied with in the drafting of new legislation, now that the Court has spoken in general terms of ‘limiting the Council’s legislative powers’. Furthermore, the Court’s reasoning can be considered also to apply to other types of steering soft law instruments that express essentially the political will of the Council. In short, it can be inferred from this judgment that ‘true’ steering soft law acts cannot produce legal effects so as to limit the Council’s legislative powers, when it comes to establishing the contents of new legislation. The question is whether the same applies for other types of soft law instruments besides steering ones. As the example discussed in Subsection 8.3.3.2 shows, interpretative and decisional instruments too may be transposed into hard law. Is there any ground on which compliance with the previous soft law acts should be ensured in the legislation thus adopted? As regards Commission interpretative acts, it can be argued that the Community legislature is required to comply not so much with these, but rather with the underlying primary and secondary Community law as interpreted by the Court. In the case of decisional acts, it must be understood that again there is discretion of the Community legislature. The Commission itself is to a large extent empowered to change its own decisional acts, which is illustrated by for instance the fairly recent substantial changes to the De Minimis Notice. Furthermore, the CFI has confirmed the Commission’s power to make such changes.66 So, it is only logical that the legislature should also be free to follow them or not. Yet, one may wonder whether general principles of law could lead to a different conclusion.

8.4.2

An Obligation on the Basis of General Principles of Law?

The principle that presents itself most clearly in this respect is legal certainty, in its meaning of legitimate expectations and vested rights; if the subsequent hard law act deviates from the preceding soft law act, can one then successfully argue on this ground that the legislature has behaved unlawfully? In the NIFPO Case, discussed above, the Court implicitly rejected such an appeal of the Irish government to the principle of legitimate expectations.67 Other case law, however, indicates that such an appeal may in fact stand a chance.

66 See eg Case T–214/95 Vlaams Gewest v Commission [1998] ECR II–717, para 89, where the CFI held that the Commission is allowed to withdraw state aid guidelines or to amend these when the circumstances so require. See also Subsection 10.5.2. 67 Cf also Case 262/80 Andersen [1984] ECR 195, paras 17–21.

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In the Commission v Council Case68 that will be discussed in more detail in Subsection 10.4.2, the Commission sought the annulment of articles of a Council Regulation adjusting the salaries and pensions of EC officials, for infringement of Article 65 of the staff Regulations and the Council decision of 21 March 1972. In this case the Court concluded that the decision does indeed bind the Council in its future action on the basis of the rule of protection of the confidence that the staff could have in this respect. Of particular interest here is the Court’s ensuing statement that: Whilst this rule is primarily applicable to individual decisions, the possibility cannot by any means be excluded that it should relate, when appropriate, to the exercise of more general powers. Furthermore, the adjustment each year of remunerations provided for in Article 65 only constitutes an implementing measure of an administrative rather than a legislative nature, and is within the framework of the Council’s application of that provision. (para 10 — emphasis added)

From this judgment one can thus infer that the principle of legitimate expectations can actually provide a legal foundation for the recognition of a self-binding effect of Community internal staff rules, not only when an individual decision is at issue but also a general implementing one. Even though the Court makes a distinction in this respect between legislative and implementing acts, the possibility that the legislature too is bound by self-imposed rules appears not to have been excluded. Yet, it must also be noted that in establishing this recognition, the employer-staff relationship played a particularly important role, as did the fact that the Commission was involved in the process of drawing up the implementing measures. So, it will also depend very much on the specific circumstances of the case whether the appeal to legitimate expectations can be upheld. In my view, it is correct that successful reliance on this principle should be limited in this respect, as the legislature must retain sufficient elbow room to draw up rules in the general interest. Only in exceptional cases, therefore, may the protection of an individual interest prevail over the protection of the general interest. This is also expressed by the following reasoning of Advocate-General Jacobs in Joined cases Driessen in respect of proposed legislation.69 In my opinion, this reasoning can by analogy be applied to Community soft law: It seems to me that, at least in principle, a trader who relies on proposed legislation does so at his own risk. If it were accepted that a proposal

68 Case 81/72 Commission v Council [1973] ECR 575. Cf also 69 Joined cases C–13 to 16/92 Driessen [1993] ECR I–4751.

Crones (1997), p 13.

Indirect Legal Effects for the Legislature 345 submitted by the Commission gave rise to a legitimate expectation on the part of the traders concerned that the proposal would be finally adopted by the Council without amendments, that would lead to unacceptable consequences. [point 36]

The A-G underlines in this respect in particular the prejudice which the recognition of legitimate expectations would cause to the role of the Council and the EP in the decision-making process. Such prejudice would also arise if there were recognition of legitimate expectations created by soft law, and as a result the institutional balance would be affected.

8.5

8.5.1

TRANSPOSITION OF AND COMPLIANCE WITH SOFT LAW BY THE NATIONAL LEGISLATURE

Introduction

An illustration that transposition of and compliance with Community soft law by the national legislature may in certain cases definitely be worthwhile and prevent damage is provided by the ‘Securitel scandal’, which occurred in the Netherlands pursuant to the Court’s judgment in the CIA Security International v Signalson and Securitel Case.70 In an interpretative communication concerning Directive 83/189/EEC, the Commission had already explicated the consequences that it considered to flow from the failure to notify technical standards falling within the scope of the directive. In the said case the Court gave the same interpretation of the directive as the Commission in its communication. If the Dutch government had ensured transposition of and compliance with the communication in the legislation implementing the directive, it would not have been confronted with the harsh implications of the Court’s judgment in this case. Furthermore, Member States can actually feel compelled to comply with Commission soft law acts, in order to avoid the risk of an action for Treaty infringement being brought against them on the basis of Article 226 EC.71 That is to say, if a Member State follows for instance the interpretation the Commission has given to Community law in an

70 Case C–194/94 CIA Security International v Signalson and Securitel [1996] ECR 71 Cf Case C–290/94 Commission v Greece [1996] ECR I–3285, in which the

I–2201. Commission brought infringement proceedings for breach of (ex) Article 48(4), but what was really at issue was that Greece had not acted in conformity with the Commission communication concerning this provision. Para 6 points in the direction of its implementation. See also Subsection 9.4.1.3 on this case. Cases C–367/98 Commission v Portugal [2002] ECR I–4731; C–483/99 Commission v France [2002] ECR I–4781; and C–503/99 Commission v Belgium [2002]

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interpretative notice, it is unlikely that the Commission will consider the Member State’s way of acting contrary to Community law. However, this does not in itself say anything about the duties that Community law may impose in this respect. In particular, the issue to be considered now is to what extent Community law requires transposition of and compliance with Community soft law by the national legislature, and on what possible grounds. I will first discuss how far transposition of and compliance with Community soft law are a national competence (Subsection 8.5.2). Next, I will explore how one should view the argument that the principle of Community loyalty and cooperation, as enshrined in particular in Article 10 EC, entails a duty of transposition of and compliance with Community soft law (Subsection 8.5.3). Following on from this, one may wonder whether there can also sometimes be a restriction of the competence to transpose Community soft law, or at least of the ways and means thereof, due to the reasons underlying the choice of soft law (Subsection 8.5.4).

8.5.2

In Principle a National Competence

Various arguments lend support to the point of view that transposition of and compliance with Community soft law is a matter which is left within the competence of the Member States.72 To begin with, it already follows from the discussion in Chapter 6 that no general duty of transposition and compliance can be found in the EC Treaty, since by their very nature soft law instruments lack ‘inherent’ legally binding force and the use of most of the Community soft law instruments identified in Part II is not even provided for in the Treaty. Moreover, the way in which the drafters of the Treaty provided for the use of recommendations and opinions points in the direction that they did not intend them to be legal instruments that Member States would have to transpose into the national legal order or comply with. That is, in Article 249 EC they considered it sufficient to declare them non-binding instruments, whereas they were more careful in specifying the legal effects of the other Community instruments mentioned there. In particular, a duty of transposition of directives is contained in that wording. ECR I–4809 provide more recent examples of the Commission starting infringement proceedings for in fact non-compliance with one of its communications, in these cases its 1997 Communication on certain legal aspects concerning intra-EU investment. See also Subsection 9.4.1.1 on these cases. 72 I consider it more appropriate to speak here of competence, as discretion would imply that there is in principle an EC competence, leaving only possibly some discretion to the Member States.

Indirect Legal Effects for the Legislature 347 Since the EC is based upon the principle of conferred powers, and the Treaty provides for no competences as such for the transposition of and compliance with Community soft law, it must be assumed that this remains in principle within the competence of the Member States. So, unlike in the case of EC directives, the non-implementation of a Commission recommendation does not meet with the ‘sanction’ of recognition of its (vertical) direct effect. This also follows from the Court’s case law, in particular from its considerations in the Grimaldi Case that since the recommendations in question were not intended to produce binding effects, they could not have direct effect and that the fact that more than 25 years have elapsed since the first of the recommendations in question was adopted, without its having been implemented by all the Member States, cannot alter its legal effect. [para 17]

It has been seen, however, that in particular the soft law instruments fulfilling the para-law function, by establishing rules aimed at closer cooperation or sometimes even harmonisation between the Member States, aim at some kind of transposition into the national legal order (recommendations, codes of conduct and to some extent resolutions). Yet, it seems ultimately to be left to the Member States whether they transpose and comply with the act at issue or not. This has also been upheld in so many words by the Council and the Commission, in response to questions of the European Parliament.73 While there is thus no duty of transposition imposed on the Member States, there is equally no prohibition of such transposition. Even when considerations such as flexibility, subsidiarity or proportionality lie behind the adoption of soft law acts, it would be difficult to reconcile a prohibition to implement these with the aim of cooperation or harmonisation and/or the desire of transposition that they possibly express. The Court’s judgment in the Grimaldi Case also supports this view, holding that even if a recommendation has been preferred because there is no desire for legislation, this recommendation can (or even must) gain legal effect by way of interpretation by the national court.74 So, the Court evidently does not consider it contrary to EC law to attribute legal effect to rules deliberately laid down in a non legally binding instrument. Furthermore, such a prohibition to transpose recommendations would be difficult to justify precisely because the recommendation is a formal Community legal instrument whose adoption is prescribed by a number

73 See 74 See

Subsections 5.4.3.2, 5.4.4.2, 5.5.5 and 5.5.6. Section 9.5 on this.

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of Treaty provisions; it would clearly render this a rather powerless instrument from the start. The foregoing is also confirmed by the judgment of the CFI in the Nefarma Case75, where it held in respect of a Commission letter and its legal effect that the fact that the Dutch government voluntarily adapted its national rules to bring them into conformity with the position expressed in the Commission letter, could be explained by its wish to avoid the risk of acting in breach of Community law. To this it added that the Treaty, in particular in [ex] Article 155 and the first paragraph of [ex] Article 189, makes express provision for such voluntary cooperation between national authorities and Community institutions by including, among the acts which the institutions, and in particular the Commission, may adopt, recommendations and opinions. That express conferral of the power to adopt acts with no binding force shows that voluntary compliance with the non-binding acts of the institutions is an essential element in the achievement of the goals of the Treaty. It follows that the non-binding character of a position taken by a Community institution cannot be challenged on the ground that the government to which the act was addressed conformed thereto. (para 79 — emphasis added)

Yet, it would be too easy to simply conclude that transposition of and compliance with soft law is a national competence. Thus, one may wonder what it means that voluntary compliance is an ‘essential element in the achievement of the goals of the Treaty’. Then, one might ask whether there can never be a duty of transposition ensuing from the positive obligations imposed upon the Member States by Article 10 EC. In the area of soft law this principle comes into play in particular because the primacy of Community law does not apply to ‘true’ soft law acts, and because these lack direct effect.76 Furthermore, even if there is no prohibition to transpose Community soft law into the national legal order, one might wonder whether there can never be any restrictions to the ways and means by which this is done.

8.5.3 8.5.3.1

What Obligation on the Basis of Article 10 EC? Legal Writing

From legal writing it is evident that the question whether the Article 10 obligation is applicable to Community soft law does not have an unequivocal 75 Case T–113/89 Nefarma [1990] 76 Cf also van Gerven (2000).

ECR II–797.

Indirect Legal Effects for the Legislature 349 answer. Everling was one of the first authors to address this question. With reference to the ‘Hague Resolution Cases’, to be discussed in more detail below, he considers that the principle of Community loyalty and cooperation entails that engagements which the Member States have entered into in connection with the EC cannot simply be set aside. In particular, he deems that Article 5 (now 10) EC requires that in such a case a Member State must, firstly, have serious grounds for doing this and, secondly, must present these to the other Member States. Furthermore, he is of the opinion that a ‘full legal effect’ may be generated by the operation of this provision, if it is concretised and depending on the historical context.77 At the same time, however, he underlines that this conclusion is not applicable in general, as this would deter Member States from entering into ‘looser’ agreements. Klabbers rejects Everling’s view outright, considering that: A possible explanation for the Court’s attitude with regard to informal instruments was offered by Everling, who suggested in careful words that informal agreements may have meaning within the context of the integration process at large and the goals of the Treaty in particular, and thus may acquire legally binding force with the help of the ‘Gemeinschaftstreue’ as laid down in Article 5 EC. Although intuition and common sense may at times provide quite reliable indicators as to what is good and what is bad for integration at large and the attainment of the Treaty’s goals in particular, in the final analysis it would seem that relying on Gemeinschaftstreue presupposes a plausible, perhaps even paradigmatic, theory of European integration.78

Most authors, however, argue along the same lines as Everling, and deem Article 10 to be of at least some relevance in this respect. Thus, Thürer considers that, viewed in the light of the duties to the organisation imposed by Article 5 (now 10) on the Member States, an undeniable and legitimate function of soft law is to support and promote, in accordance with legal means, the goals of the Community in the process of integration. To be sure, the members’ duty of loyalty towards the organization does not as such transform non-legal engagements into parts of Community law; such a far-reaching consequence would not be supported by the constitutional basis behind the obligation.79 However the principle of community loyalty gives rise to certain legal obligations, such as the duty to consider and make an effort to comply with soft law and not to act against it unless good reasons for doing so are set out.80

77 Everling (1985), p 123. 78 Klabbers (1994), p 1016. 79 See in this sense also Bothe (1981), p 772. 80 Thürer (1990), p 134. More recently, this view

was supported by Adam (1999), p 83.

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This in fact boils down to the formulation of an obligation of effort, as opposed to an obligation of result. With reference to Article 5 (now 10), Morand considers that recommendations addressed to the Member States peuvent prévoir certaines obligations auxiliaires de caractère procédural qui lient aussi bien les Etats que les Communautés elles-memes. Elles peuvent par exemple obliger les Etats Membres à informer la Commission des mesures adoptées. Ces obligations trouvent leur fondement dans les dispositions des traités prévoyant que les Etats doivent faciliter aux Communautés l’accomplissement de leur mission.81

The duties of cooperation ensuing from Article 10 EC were one of the subjects of the FIDE Congress held in 2000. In the conclusions thereof, drawn up by Temple Lang, some attention was given to the scope of this provision as regards non legally binding agreements and Community policy. It was considered inter alia that: Article 10 imposes positive duties to act which could not be derived from the primacy principle, and it imposes duties not to interfere with the working of Community law and policy even when the national measure in question is not formally or directly contrary to Community law (emphasis added).

Some argued that such an interpretation of Article 10 is undemocratic, because it implies that duties can be imposed on private parties by Community policies, without proper legislation. In response to this, it was held in the FIDE conclusions that under general principles of EC law no duties can be imposed on private parties, even by a directive, without appropriate legislation either at Community or at national level. The Court has clearly deduced duties under Article 10 EC for Member States as a result of Community policies, but only policies which Member States have unanimously agreed to.82

What these authors all have in common is that they have addressed the question of applicability of Article 10 to soft law in a rather general way, without explicating in detail what precise obligations this principle brings with it at the different — legislative, judicial and executive — levels. However, the case law of the Court permits at least some further specification and, indeed, speculation, as will be seen from the next subsections and the discussion in this respect in the following chapters.

81 Morand (1970), p 629. 82 Temple Lang (2000).

Indirect Legal Effects for the Legislature 351 8.5.3.2

No General Obligation on the Basis of Article 10 EC

So, how should one understand the first paragraph of Article 10 EC, which says that the Member States must take all appropriate measures to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community? Does ‘action’ in the sense of this paragraph relate only to legally binding, primary and secondary, Community law or does it encompass Community soft law as well? More in particular, could it be argued that the positive obligations imposed on the Member States imply a duty to transpose and comply with Community soft law? The single instance of case law throwing light on this induces a negative answer. The case in point is Brother Industries.83 Brother Industries brought an action seeking a declaration that a decision of the Commission concerning the termination of an anti-dumping proceeding, as well as a Commission memorandum sent to all the Member States and setting out the reasons for the termination, was void. The memorandum also suggested that the national authorities investigate the case and take the necessary measures in accordance with their own customs legislation and after six months report to the Commission on the results of their investigations. The Court ruled that: Whilst drawing the attention of the Member States to the seriousness of the matter, the memorandum does not, however, ask the national authorities to make any specific Decision on the origin of the products in question but merely asks them to reach a Decision on the basis of their own national legislation. Indeed, the position could not be otherwise having regard to the fact that an obligation on the Member States to adopt specific measures cannot be created by a Commission memorandum in the absence of a particular provision in the Treaty or in binding acts adopted by the institutions. The Member States’ general obligation to ‘facilitate the achievement of the Community’s tasks’ laid down in Article 5 of the EEC Treaty cannot be relied on in this case because no common definition of the origin of the goods has been provided under Regulation no. 802/78 and consequently the interests of the Community continue to be protected through independent assessments made by the national customs authorities for which the Commission’s findings may be a source of guidance but have no binding force (emphasis added).

With reference to this judgment, Advocate-General Tesauro made similar observations in his opinion in Case C–303/90, France v Commission, concerning a Commission code of conduct which was held to have been

83 Order of 30 September 1987 in Case 229/86 Brother Industries [1987] ECR 3757, especially 3763.

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adopted by consensus of the Member States.84 In addition, he held that the Court’s statement that (now) Article 10 EC cannot be invoked ‘in the absence of a particular provision in the Treaty or in binding acts adopted by the institutions’, applies in the sense that such an obligation on Member States cannot in any case be invoked to adopt acts of a regulatory nature.

Undoubtedly, he said, the Commission may ask Member States, on the basis of Article 10, to provide specific information on a particular case and it may institute proceedings for breach of the Treaty if a Member State refuses to supply such information, but it certainly cannot use such a legal basis to harmonize, clarify and widen the obligations imposed by a rule, in this instance Article 23(1) of Regulation No 4253/88. (point 21 — emphasis added)

From the above it must be concluded that no duty of transposition of Community soft law can be imposed on the Member States if there is not some kind of hard law obligation, resulting either from the Treaty or from secondary legislation. Article 10 EC is not capable of filling this gap. The same goes for acts adopted or accepted in some way by the Member States. This means, in my view, that the (still) controversial point as to whether Article 10 can create in itself, independently of other (binding) Community provisions, any enforceable rights and obligations85 must be answered in the negative as regards the transposition of and compliance with soft law.86 Consequently, it does not seem possible for the Commission to start Article 226 EC proceedings in the case a soft law act has not been transposed or complied with, arguing that a Member State has failed to fulfil an obligation under the Treaty.87 8.5.3.3

An Obligation on the Basis of a Specific Duty of Cooperation: The ‘Hague Fisheries Resolution Cases’

A number of cases shed light on the question whether, in the development of — autonomous — national law and policy, the national legislature 84 See also Subsection 6.6.4 on this case. 85 Kapteyn and VerLoren van Themaat (1995),

p 97 take the view that this is never possible, referring in this respect to Case 78/70 Deutsche Grammophon [1971] ECR 487. Due (1992) and van Gerven (2000) argue with reference to Case 186/85 Commission v Belgium [1987] ECR 2029, para 39 that the principle of loyal cooperation can sometimes be considered an independent source of rights and obligations. 86 Obligation of effort at the most. Cf Subsection 9.5.3. 87 Cf in this sense also Mortelmans (1979), p 22.

Indirect Legal Effects for the Legislature 353 should ensure that it complies with Community soft law acts, and thus does not take any measures that go against these. The Court’s judgment in the ERTA Case can be taken as the point of departure in this respect, in particular its consideration that each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules (emphasis added).

Furthermore, it held that if paragraphs 1 and 2 of [ex] Article 5 EC are read in conjunction it follows that to the extent to which Community rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope.88

Although this case did not concern a Community soft law act but a (binding) European road transport agreement, the Court obviously formulated its judgment in more general terms; irrespective of the form taken by the Community rules, the Member States had to abstain from taking any measures going against them. With this formulation, it certainly left room for the assumption that this could also apply for Community soft law rules.89 In the ‘Hague Fisheries Resolution’ series of cases this was indeed confirmed by the Court, although on what conditions it is rather difficult to identify or infer therefrom. In the second half of the 1970s, the Court had to rule in those cases on the question of the legal effect of Annex VI of the Council resolution on fisheries of 30 October 1976, adopted at a meeting in The Hague.90 The Hague Resolution and its Annex VI were adopted in particular in view of the problems preventing the adoption within the prescribed period of a common policy for the conservation of fishery resources. It provided that if indeed no Community measures had been brought into force in time, the Member States could adopt as an interim measure and in a form avoiding discrimination, appropriate measures to ensure the protection

88 Case 22/70 ERTA [1971] ECR 263, respectively paras 17 and 22. 89 Cf also Borchardt and Wellens (1989), pp 309–11. For the opposite

view, see Krausser (1991), p 85. 90 Case 61/77 Commission v Ireland [1978] ECR 417; Case 141/78 France v UK [1979] ECR 2923; Case 32/79 Commission v UK [1980] ECR 2403; Case 804/79 Commission v UK [1981] ECR 1045.

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of resources situated in the fishing zones off their coasts. Before adopting such measures, they would have to seek the approval of the Commission, which was to be consulted at all stages of the procedure. The UK and Ireland had availed themselves of this possibility, but in a way that was not considered to be in compliance with the conditions prescribed by the annex. The judgments in these cases are most revealing when looked at in conjunction. Interestingly, in Case 32/79, Commission v UK, it was held in so many words that ‘it is not contested that this Resolution is binding on the Member States.’ 91 Thus, it was not so much the binding force of the resolution as such that was in dispute, but rather the interpretation of its contents. Yet, the Court’s reasoning does in fact also shed light on the foundation of the recognition of the binding force. In Case 61/77 Commission v Ireland, it was thus stated that this resolution had been ‘formally approved’ by the Member States some days after its adoption, on 3 November 1976. It may be tempting to conclude that this approval or agreement forms the basis of or at least an important element in the recognition of the binding force of the resolution. The relevance of the formal approval was, however, left as a somewhat open question. The fact that the Court mentioned it only rather indirectly in Case 61/77, and not at all in the other cases, is an indication in my view that this aspect is merely of minor relevance and not essential for the recognition of the binding force of the resolution.92 More importantly, the Court placed the emphasis on the policy area at issue and the nature of the Community powers in this respect, that is the objective of establishing a common fisheries policy and the far-reaching conferral of powers on the Community with a view to this.93 For a long time, however, the Council was unable to set up this common policy. These facts induced the Court’s conclusion that the national measures that are taken in this area are subject to all the relevant Community law provisions, including the Hague Resolution. In Case 141/78 France v UK, this became evident in particular when the Court held that the bringing into force of the conservation measures taken by the UK ‘was subject to all the relevant provisions of Community law’ inasmuch as they were adopted in a field coming under the powers of the Community. Obviously, the Court considered the Hague

91 Case 32/79 Commission v UK [1980] ECR 2403, para 11. Cf also Case 141/78, France v UK [1979] ECR 2923, para 5. 92 That is also why I did not discuss these cases in Section 6.6. 93 Cf also Everling (1985), pp 123–25 and Borchardt and Wellens (1989), pp 305–6. Cf also the ERTA Case, in which the Court also underlined the fact that the establishment of a common Community policy was envisaged by the Treaty, ie a common transport policy.

Indirect Legal Effects for the Legislature 355 Resolution to constitute part of this, considering in this respect that ‘it is necessary to bear in mind the terms of Annex VI of the Hague Resolution.’94 In Case 804/79 Commission v UK, the Court emphasised even more strongly that the power to adopt measures relating to the conservation of the resources of the sea belongs fully and definitively to the Community, as part of the common fisheries policy. The fact that the Council had not adopted these conservation measures within the required period could not, according to the Court, ‘in any case restore to the Member States the power and freedom to act unilaterally in this field’.95 Furthermore, the Court considered that: Having regard to the situation created by the inaction of the Council, the conditions in which such measures may be adopted must be defined by means of all the available elements of law, even though fragmentary, and by having regard, for the remainder, to the structural principles on which the Community is founded (emphasis added).

It follows from the subsequent paragraphs that what the Court envisages here are the Hague Resolution and the principle laid down in (now) Article 10 EC.96 From Case 141/78 France v UK, we gain the clearest indication that the Hague Resolution is, in its contents, in fact an expression of the obligation of cooperation contained in (now) Article 10. That being the case, it has become binding as a result of that provision.97 Most importantly, the Court held that: The Commission has rightly claimed that that Resolution, in the particular field to which it applies, makes specific the duties of co-operation which the Member States assumed under Article 5 of the EEC Treaty when they acceded to the Community. Performance of these duties is particularly necessary in a situation in which it has appeared impossible, by reason of divergences of interest which it has not yet been possible to resolve, to establish a common policy and in a field such as that of the conservation of the biological resources of the sea in which worthwhile results can only be attained thanks to the co-operation of all the Member States (emphasis added).98

94 Para

7. This even applied during the transition period which was still in effect at that time, that is to say, the Community powers had not by then been fully transferred to the Community but would be in the future. 95 Paras 17 and 19–20. 96 Paras 23 and 26–28. 97 Cf also Temple Lang (1990), pp 668–69. 98 Para 8. Cf also Case 61/77 Commission v Ireland [1978] ECR 417, paras 65–66.

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So, in the circumstances of these cases, it has become clear that no duty to comply with all soft law acts is imposed on national regulatory authorities as a result of the general principle of loyal cooperation laid down in Article 10. Such a duty only exists when the soft law act at issue can be considered a specific expression of that principle; that is to say, when the soft law act establishes what the duty of cooperation actually entails as regards the matter in question. Hence, it is not possible as such to declare this case law generally applicable to all resolutions and other soft law instruments.99 In this respect it must also be noted that the Court’s finding was very much influenced by the particular facts and circumstances of these cases and, in my view, it was induced primarily by a concern not to create a legal vacuum due to the inaction of the Council in an area in which the EC has to establish a common policy. Member States should then refrain from taking measures that go against the few Community rules that actually have been established with a view to protecting the common interest in the area concerned, even if these are only soft law rules and, in my opinion, even if they have not been agreed to by the Member States. It can further be argued that although the Court’s reasoning in these cases concerned the question of compliance, it can be applied by analogy to the question of transposition. In my view it thus also permits the conclusion that a duty to transpose soft law into national (hard) law can ensue from a soft law act that involves a specific expression of the principle of Article 10.

8.5.4

Possible Restrictions to Transposition

At the same time, however, it is also necessary to examine whether the Member States’ competence to transpose Community soft law may not sometimes be curtailed. This question arises in particular when the transposition of a Community soft law act into national legislation is somewhat at odds with the reason(s) behind the choice of soft law. Thus, in Part II it was seen that this choice may be inspired by considerations of flexibility or, more in general, of subsidiarity and proportionality, leading to the conclusion that there is no need or desire for Community legislation. The transposition of Community soft law into national hard law would then in fact run counter to these efforts towards less intrusive regulation. 99 As

the discussion in Subsection 8.4.1 of Case C–4/96 NIFPO [1998] ECR I–681 made clear, this conclusion can not even be declared applicable to resolutions as a whole, as one part or annex thereof may be a specific expression of the duty of cooperation, while other parts or annexes are not.

Indirect Legal Effects for the Legislature 357 Yet, in view of the observations made above in Subsection 8.5.2, I am of the opinion that the adopting institution(s) can not object as such to the transposition of Community soft law into national hard law, and that raising such an objection could in fact be considered contrary to the duties of the Community institutions under Article 10 EC, as this provision has become the expression of a more general principle of reciprocal cooperation between the Member States and the Community institutions.100 If the adopting institutions do not wish to see their soft law acts transposed, in any way at all, they should make this unequivocally clear in the wording thereof. This does not mean, however, that the Member States’ competence may not in fact be curtailed as regards the ways and means of transposition. In this respect, it is important to consider what the act stipulates regarding the kind of transposition that is aimed at. Where discretion is left to the Member States by the stipulation that they should take any ‘appropriate’ or ‘necessary measures’ or ‘all the necessary legislative, regulatory or administrative action’ or terms of the same tenor, the Member States have in fact carte blanche to transpose the act in any way they see fit, possibly also in legislation. I take the view that the reason behind the choice of the soft law instrument is then in fact immaterial. When soft law acts specify the transposition measures in detail, for instance by providing that these should be of a self-regulatory nature, such as national codes of conduct, the adopting institution has clearly not wanted to leave the choice of the means of transposition for the Member States. So, when the form of transposition is specified, I consider that transposition in any way other than that prescribed (eg by way of legislation instead of codes of conduct) must be deemed to have been excluded. In other words, once the national legislature has decided to transpose a soft law act, there is in my view an obligation to do this by the indicated means of transposition. Such an obligation then flows from the fact that Member States are also bound by the subsidiarity and proportionality principles and the principle of Community loyalty.101 More caution is called for when soft law acts, albeit aiming at closer cooperation or harmonisation, are completely silent on (the means of) transposition. It then seems to me that the reason behind the choice of the soft law instrument (eg flexibility) can come into play. In particular when this relates to the non-desirability of legislative rules, it may actually be going too far to transpose the act by way of national legislation. An interesting question in this respect is how far the Community proportionality 100 As

Due (1992) puts it, at p 356. This aspect of the Article 10 obligation was first recognised by the Court in Case 94/87 Commission v Germany [1989] ECR 175. See Kapteyn and VerLoren van Themaat (1995), p 102. 101 See also point 8 of the Protocol on subsidiarity and proportionality.

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principle, as a legislative concept, then also applies to national transposition measures.102 On the one hand, it can be argued that this principle should be considered in the context of the division of powers between the EC and the Member States, in particular in view of its inclusion in Article 5 with the subsidiarity principle. As a result of this, the Member States may decide for themselves on the rigour of the transposition measures. On the other hand, it can be argued that the recognition of the Community proportionality principle as a legislative concept has partly been induced by the desire to limit government interference, not only at the European but also at the national level. By establishing rules in a soft law instrument, the adopting institutions are thus also choosing to alleviate the burden imposed by EC legislation. Transposition of soft law into national legislation counteracts this effort. Thus, the Community principle of proportionality, in conjunction with the principle of loyal cooperation, may then lead one to conclude that the Member States must also try to transpose Community soft law by the most appropriate and least burdensome means. However, it is not yet clear whether these principles do actually stretch so far.

8.6

CONCLUSIONS

It is because of the interpretation and application of the principles of subsidiarity and proportionality that soft law is playing an increasingly important role in Community law, to the detriment of the role of Community legislation. As established in Chapter 10, this entails that the principle of conferred powers in its meaning of principle of legality is now actually becoming less prominent. Although it might therefore be said that the legality of Community action as a whole is decreasing, this does not necessarily mean that its legitimacy is decreasing as well; it has been found that (other) general principles of law can provide the necessary counterbalance. That is to say, where the Treaty leaves discretion to the Community legislature as to the form of action — binding or non-binding — and thereby for application of the principles of subsidiarity and proportionality, this application must take place within the limits set by other general principles of law, in particular institutional balance, Community loyalty, effectiveness, transparency, legal certainty and equal treatment. These may in certain

102 Up

to now, this principle has mainly attracted attention as regards the contents of national rules and not the form in which these have been cast. See also Subsection 3.6.1 on this principle.

Indirect Legal Effects for the Legislature 359 instances require that action of a ‘more intrusive’ nature be taken, ie that legislation be adopted or that soft law be transposed into hard law. So, quite paradoxically, it appears that out of a concern to better ensure the effectiveness, legitimacy and transparency of Community law, the Community institutions may have to transpose soft law into legislation, and indeed have already done so in certain cases. Paradoxically, because soft law was made a starting point of lawmaking policy precisely with a view to increasing the effectiveness, legitimacy and transparency of Community action, and because it has been established that interpretative and decisional instruments in particular are adopted with a view to ensuring correct and uniform application of Community law, legal certainty and equal treatment. More than that, one can uphold that even though no hierarchy has been established between the principles of subsidiarity and proportionality on the one hand and other general principles of law on the other, such a hierarchy does in fact ensue from the Protocol on the application of the principles of subsidiarity and proportionality; that is to say, from making their application expressly subject to the application of the principles of institutional balance, Article 10 EC and effectiveness. These principles constitute the standards by which the application of the principles of subsidiarity and proportionality, and hence also the use of soft law, should be assessed and possibly judicially reviewed within the framework of an action for failure to act (read: to adopt legislation). Thus, the Treaty drafters themselves have provided a number of ‘tools’ for the appropriately balanced use of soft law. These include firstly the action for failure to act (Article 232 procedure) and the possibility for both the EP and the Council to request the Commission to make certain proposals (respectively Articles 192 and 208 EC). The action for failure to act can function as a control mechanism103 in the sense that if an institution fails to fulfil its task in the decision-making process, whether or not deliberately, and whether or not for professed reasons of subsidiarity, the other institutions can call it to account for this before the Court of Justice.104 Secondly, other general principles of law provide such ‘tools’ as standards for review in this procedure and for consideration by the Commission. Although Community law thus seems to provide sufficient guarantees or at least tools against unrestrained use of soft law, one may still wonder how the balance must be struck in a particular situation; why for instance has it been considered necessary to transpose soft law into hard law in the

103 This role cannot be fulfilled by individuals and companies because, like Article 230 EC, Article 232 EC does not consider admissible their appeal against Community acts of a (truly) legislative nature, but only against acts ‘the Community has failed to address to that person’. 104 Cf also Cras (2000), p 95 ff on this function of the procedure for failure to act.

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area of state aid with a view to the correct and uniform application of Community law, but not in the area of electronic communications networks? More clarity on the nature, use and status of such soft law instruments is therefore called for, in my opinion, possibly in the framework of Article 249 EC, if they are truly to contribute to correct and uniform application of Community law, legal certainty and equal treatment. Furthermore, it also seems appropriate to establish more clearly the limits to the application of the subsidiarity and proportionality principles, flowing from the general principles of law discussed above; this could possibly be done by introducing these standards more explicitly into the Treaty itself, for instance in its Article 5, instead of only in the Protocol. Another question is whether sufficient use is being made of the procedural tools provided for. The EP is thus rather critical about the use of Commission soft law in particular, but appears to make rather limited use of its right under Article 192 EC, at least explicitly. The Council seems to be making increasing use of its power in this respect.105 With regard to the question of compliance with Community soft law in the development of Community hard law, we have seen that the Community legislature has a lot of discretion in this respect. In my view, this discretion is in line with the proper fulfilment of the legislative task; the legislature must enjoy sufficient discretion in order to adapt in a flexible way to changes taking place in society and in economic life, technological developments etc. Only in exceptional cases or circumstances should this discretion be restricted. As regards transposition of and compliance with Community soft law by the national legislature, it has been found that these too largely fall within the competence of the national legislature. Correctly, in my opinion, in particular from the point of view of legitimacy, the Court cannot be said to have interpreted the principle of loyal cooperation contained in Article 10 EC in such a way as to generally entail an obligation of transposition of and compliance with soft law. Only in the case of a soft law act expressing a specific duty of cooperation can this principle give rise to such an obligation. It has been seen that the existence of such a duty depends very much on the area at issue; in particular whether the development of a common EC policy is envisaged or not. Furthermore, in the event that the national legislature decides to transpose Community soft law, even if voluntarily, its competence may in fact be curtailed as regards the means to do this. In my opinion, such a restriction is a result of the reasons and principles which underlie the decision at the Community level to use soft law, and the obligation of the national legislature to respect these.

105 Cf

Craig and de Búrca (1998), p 150.

9 Indirect Legal Effects for the Judiciary 9.1

INTRODUCTION

T

HE COMMUNITY COURTS often treat soft law, in particular acts like resolutions, declarations and recommendations, as part of the ‘Legal framework’ or ‘Legal background’1 of the cases before them. They then mention these acts and restate part of their content at the beginning of their judgments. In the Tögel Case for example the Court stated under the heading of ‘Legal framework’ that According to Point 1 of Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject-matter of public contracts [… ], the contracting entities covered by the Community directives dealing with the award of public contracts are recommended to use the terms and codes of the Common Procurement Vocabulary (CPV) published in Supplement 169 to the Official Journal of the European Communities for 1996.2

The question thus arises as to the weight that must be attached to this reference; does it mean that the ECJ takes such instruments into account in its interpretation of Community law, and if so, what influence do they actually have on this interpretation? For instance, in relation to the above example, does the ECJ take account of the Common Procurement Vocabulary laid down in the Commission recommendation with respect to the interpretation of the annexes of the Services Directive?3 National courts may also refer to Community soft law in their interpretation of Community and national law. In the UK, Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work and Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, to which a Code of Practice was attached, have been used by the courts to identify what

1 These are headings found in most of the Court’s judgments. 2 Case C–76/97 Tögel [1998] ECR I–5357. Cf also eg Case C–4/96 NIFPO 3 See the discussion of the Tögel Case in Subsection 9.4.3.1 below.

[1998] ECR I–681.

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constitutes offending behaviour.4 This to the extent of providing ‘a good example of a soft law measure being referred to on a regular basis by tribunals in the UK.’5 Although some judges have considered these measures to be non-binding acts, they have been held to be a ‘helpful guide’. Yet, this still leaves open the question of what role national courts are required to assign to such Community soft law instruments when called upon to interpret and apply Community law in a case before them. Does Community law require them to take account of soft law instruments that have been adopted by the Community institutions in the area at issue and, if so, what does this requirement consist of and what is its legal basis? This chapter focuses on the influence Community soft law can have on existing Community — and possibly national — law, as a result of interpretation of this hard law by the Community courts and national courts. In particular, an assessment will be made as to whether Community soft law is to be taken into account merely voluntarily in this interpretation, whether there is an obligation in this respect or whether one can even speak of a duty of compliance with soft law. This assessment will be made on the basis of the Court’s case law, and as such will make it possible to establish the (indirect) legal effects that soft law can gain through interpretation of Community hard law. It is important to stress here that the perspective of this assessment is that of the — Community and national — courts themselves and not of the claimants and/or the authorities adopting the soft law instruments. The rights and duties Community soft law can entail for these parties, for instance as a result of the principle of legitimate expectations, will be examined in the next chapter. This chapter starts with some observations on the power and task of interpretation of the Community courts, in particular the ECJ (Section 9.2). Next, it will prove possible to identify three potential roles for soft law to play in the performance of this interpretative task and that of the national courts, ie the roles of voluntary interpretation aid, mandatory interpretation aid and consistent interpretation (Section 9.3). In the subsequent sections, consideration will then be given to which of these roles the Court has assigned to Community soft law instruments in its own interpretation of Community law (Section 9.4) and in the interpretation of Community law by the national courts (Section 9.5). This examination will make it possible to establish some general implications of the use of soft law as an interpretation aid, and as such also some conclusions as to

4 The

following cases are cited by Beveridge and Nott (1998), p 302: Smith v Bowater Labels Ltd [1995] 23 DLCD; Goodwin v Watkins [1995] 24 DLCD 5; Tofield v Pollicino [1993] 15 DLCD 3; Donnelly v Watson Grange (1993) 15 DCD; Wadman v Carpenter [1993] IRLR 374; Insitu Cleaning v Heads [1995] IRLR 4. 5 Beveridge and Nott (1998), at p 305.

Indirect Legal Effects for the Judiciary 363 the influence of Community soft law on the scope and the progressive development of existing Community law (Section 9.6). This influence will also be considered from the viewpoint of making Community action more effective, legitimate and transparent (Section 9.7).

9.2

THE POWER AND TASK OF INTERPRETATION OF THE EUROPEAN COURT OF JUSTICE

It follows from the general division of powers and tasks between the Community institutions, as established in the EC Treaty, that the ECJ is entrusted with the final interpretation of Community law. According to Article 234 EC, the Court is empowered to give preliminary rulings concerning the interpretation of the EC Treaty and acts of the Community institutions. An important function of the preliminary procedure is to ensure the uniform interpretation of Community law throughout the EC. Article 220 EC provides the standard for the way in which the Court of Justice has to perform this task: ‘The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed.’ ‘Interpretation’ in the sense of this provision — as opposed to ‘application’ — must be understood as the establishment of the meaning and scope of Community law in abstracto, not directly related to a particular case.6 The fact that the Court’s power involves not only the application of Community law in a particular case but also the interpretation of Community law more in general, thus ensuring the uniform interpretation of Community law, demonstrates that the Court has an important constitutional role. 7 In view of this, it can also be argued that not only the legislature but also the Court of Justice has lawmaking power. In this respect the Court also differs from most national courts. As regards the lawmaking role of the Court, it must be recalled that the EC Treaty constitutes a traité-cadre, and not a traité-loi, because of its framework and purpose-oriented nature. Furthermore, on a number of important issues the Treaty is silent.8 It thus establishes the ‘bones’ of the European Community, which then have to be fleshed out in other ways, such as the adoption of secondary legislation, for which the Treaty provides in numerous articles. Yet, as seen in Section 1.4, the decisionmaking process and consequently the establishment of this body of legislation have been complicated, even frustrated, by a number of factors. 6 Cf also in this sense von der Groeben et al (1997), p 387. 7 See also the Court of Justice Report on certain aspects

of the application of the Treaty on European Union, 17 May 1995, Luxemburg, p 2. 8 Eg as to the sources of ‘the law’ mentioned in Article 220 EC, or the relation between the national and the Community legal system. See Koopmans (1991), p 927 in this respect.

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Moreover, the adopted legislation is not always clear and consistent. It is against this background that the Court has (had) to perform its task of interpreting Community law, and that the legal construction by the Court must be assessed. It is equally unsurprising that the Court has been called upon not only to establish the meaning of the written word of the legislature, but also to fill in gaps in Community law9 left by the legislature and the executive because of their incapacity or unwillingness to adopt legislation or because of their lack of competence.10 So, to a certain extent at least, the Community legal system as it has been shaped by the Member States and has functioned (or failed to function) in practice, has compelled the Court to put flesh on the bones itself, in order to prevent stagnation in the integration process, or even disintegration. The Court has tried to secure the effet utile of Community law11 in particular by having recourse to teleological interpretation, alongside the more traditional literal, historical and contextual interpretation methods.12 That is to say, apart from basing its interpretation of Community law on the wording, (historical) background and/or context of the provisions at issue, the Court has chosen the interpretation that best serves the purpose for which the provision at issue was adopted.13 This already became clear in case law dating back to the early 1960s,14 which laid the foundations for the Community legal order as it stands today and marked the era of legal construction by the Court of Justice. Obviously, how one evaluates the Court’s legal construction resulting from this approach depends largely on one’s conception of the role of the judiciary in the legal system, in particular in relation to that of the legislature but also to that of the executive.15 In view of this, it is not surprising that some applaud the Court for its judicial activism, whereas others criticise it.16 Yet others deem that the Court has only done what was required,17 or that it has even shown judicial restraint.18

9 Cf von der Groeben et al (1997), p 378, and Bleckmann (1982), p 1181. 10 Cf Koopmans (1991), p 927 and van Gerven (1979), p 7. 11 Cf Streinz (1995), p 1491. 12 Cf Bleckmann (1982) on these and other interpretation methods. 13 Schermers and Waelbroeck (1992), p 18. This has also been referred

to as ‘functional’, ‘purposive’, effet utile and ‘dynamic purpose-oriented’ interpretation. See eg Bleckmann (1979) and Pescatore (1972), pp 327–28, who claims that as the founding Treaties are entirely directed towards the notion of the objectives to be achieved, the teleological interpretation method is particularly apt. 14 Inter alia Case 26/62 Van Gend en Loos [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585. 15 Cf also van Gerven and Leijten (1981), pp 28–30. 16 Cf Rasmussen, as cited by Craig and de Búrca (1998), p 89. 17 Van Gerven (1979), p 20. 18 Schermers and Waelbroeck (1992), p 23.

Indirect Legal Effects for the Judiciary 365 The plea for a restrained role of the judiciary is often inspired by the idea that in states governed by the rule of law the legislature is in principle better democratically legitimised to establish ‘new’ law; can do this in a general and more consistent way, which does not depend on the case at issue; and is better equipped to assess and evaluate the (side-)effects of legislation. Others deem that courts play an equal role in the lawmaking process and are not restricted by legislative activity. I agree with the latter point of view, given in particular the peculiarities of the Community decision-making process as indicated above, the still limited democratic legitimation thereof, the constitutional task of the Court of Justice and the still incomplete and dynamic nature of the Community legal order as such.19 By examining in this chapter the role that the Court of Justice assigns to Community soft law in its own interpretation of Community law, an indication will also be given as to how the Court itself perceives the role of the judiciary in relation to those of the Community legislature and executive. In particular, to what extent does it take account of Community soft law or ‘read it into’ Community hard law, so that soft law contributes to the progressive development of Community law and becomes in fact a relevant element in the assessment of whether Community and national behaviour is in conformity with Community law? Or does the Court rather consider — some types of — soft law to interfere with its interpretative power?

9.3

THREE POSSIBLE ROLES FOR SOFT LAW

In Chapter 2, Community soft law instruments were taken to be — tertiary — sources of Community law in the sense of Article 220 EC, even if only providing a standard for interpretation. The question to be addressed in this chapter is then to what extent Community soft law instruments do indeed form such a standard, which is ‘to be observed’ according to Article 220. In this regard, I deem it appropriate to distinguish three different roles that could possibly be assigned to Community soft law in the interpretation of Community hard law. These will be briefly introduced and explained here, so that the following sections can establish in more detail which of these roles is actually assigned to the various instruments. Firstly, soft law could be assigned the role of voluntary interpretation aid, which means that it is left to the discretion of the Community courts and of the national courts to decide whether or not to take Community soft

19 Cf

also van Gerven (1979), p 7.

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Legal Issues of Community Soft Law

law acts into account in the interpretation of the applicable law. So, the courts could then use soft law acts as an interpretation aid at their own discretion. Secondly, soft law could be assigned the role of mandatory interpretation aid, meaning that there is then an obligation for the courts to take soft law acts into account when these contribute to the clarification of Community or national (implementing) law. The Court of Justice and national courts would then have to include Community soft law as a relevant element in the effort to establish the meaning and scope of the hard law at issue. As such, then, this is an obligation of effort. Thirdly, one might wonder whether the role of soft law could actually go beyond being solely an interpretation aid, either voluntary or mandatory, and that consistent interpretation with it must be ensured. Obviously, such a duty of consistent interpretation entails a more far-reaching obligation for the courts, namely to ensure, as far as possible, an interpretation of Community or national law which is in conformity with the applicable soft law act. This boils down in fact to an obligation of result20 and it will be seen that the question whether there is such an obligation arises in particular in respect of national courts.21 The concepts of judicial implementation and remedial interpretation, introduced by Prechal,22 are also helpful in this respect. She argues that since legislation, both national and Community, is cast at a certain level of abstraction, there will in principle always be a certain margin for national courts when they are applying and hence interpreting a legal rule. The task of judicial implementation of the national courts concerns the application and interpretation of Community law, whether or not transposed in national law, in the cases before them. Remedial interpretation goes further, and represents a palliative for inadequate implementation. The question here is whether the role assigned to Community soft law is one of judicial implementation or remedial interpretation.

9.4

THE ROLE OF SOFT LAW IN THE INTERPRETATION OF COMMUNITY LAW BY THE COMMUNITY COURTS

The role the Court has assigned to soft law in its own interpretation of Community law differs, depending not only on the nature and function

20 Although it may not always be possible to achieve the result, for instance as a consequence

of the application of legal certainty. Therefore, some prefer to speak here too of an obligation of effort rather than of result. Cf in this sense Wissink (2001), pp 108–11. 21 See further Subsection 9.5.3 below on the distinction thus made between mandatory interpretation aid and consistent interpretation. 22 Prechal (1995), p 94.

Indirect Legal Effects for the Judiciary 367 of the soft law instrument at issue but also on the adopting authorities. The instruments that come into play in this respect are in particular the interpretative, preparatory and steering instruments.23 The Court has clearly adopted a different approach to Commission interpretative instruments than to other soft law instruments, in particular preparatory and steering ones. I will therefore look at the role that the Court has assigned to these instruments separately. Furthermore, to gain a better understanding of the reasons behind this different approach, I will also look — by means of an intermezzo — at how the Court has taken account of interpretative declarations attached to legislative acts by the Council and by the Member States. In this respect it will also be seen that a part is played not only by teleological interpretation but also by other interpretation methods mentioned above, in particular where the interpretation of secondary Community law is at issue.

9.4.1 9.4.1.1

The Role Assigned to Interpretative Commission Instruments A Restrictive Approach of the European Court of Justice

It was established in Section 5.3 that the Commission’s interpretative acts, and its decisional acts insofar as they are also interpretative, often contain the formula that they are without prejudice to the Court’s interpretation of Community law. In the earliest cases in which such Commission acts were invoked, the Court itself simply avoided the question of whether it had to take them into account or not. In a number of cases where the interpretation of Article 85(1) (now 81(1)) EC was at issue, mention was made by the parties of the relevance of the Commission’s Notice concerning Agreements, Decisions and Concerted Practices of Minor Importance which do not fall under Article 85(1) of the Treaty establishing the EEC (the De Minimis Notice). In his opinions in the Cadillon and Béguelin Cases,24 Advocate-General Dutheillet de Lamothe was clearly hesitant to recommend the Court to refer to the notice in its judgments; so too was Advocate-General Warner in his opinion in the Miller Case. They argued in particular that according to the terms of the notice itself, it was an expression of opinion, issued for guidance only and having no legal effect. A-G Warner also emphasised

23 Decisional

instruments will prove to be the most relevant instruments in the discussion of the indirect legal effects of soft law for the executive in Chapter 10. 24 Case 1/71 Cadillon v Höss [1971] ECR 351 and Case 22/71 Béguelin [1971] ECR 949. See also on this case law Schwarze (1976), pp 61–64.

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that the notice stated that it was without prejudice to any interpretation to be given by the Court of Justice. He added that: It could not be otherwise, for the Commission has no power to alter the law as laid down by Article 85(1) of the Treaty.25

The Court clearly shared this hesitance, as it did not even acknowledge the existence of the notice in its judgments in these cases and gave its own interpretation of the scope of (now) Article 81(1) EC and the de minimis requirement contained therein.26 In later cases, however, the Court did rule on the legal relevance of interpretation of Community law in such Commission instruments and the position thereof vis-a-vis interpretation by the Court. Thus, in the Krohn Case it made clear that interpretation by the Commission has only limited legal authority, holding that: An unofficial interpretation of a Regulation by an informal document of the Commission is not enough to confer on that interpretation an authentic Community character … . 27

Furthermore, from the judgment in the Soba Case28 it clearly follows that interpretative acts cannot have any effects derogating from primary and secondary Community law as this has been interpreted by the ECJ.29 In this case, the Commission defended an interpretation of Regulation 1626/85 that it had also laid down in an interpretative note. It claimed that this note had been brought to the notice of the Member States and that all the traders concerned must certainly have been familiar with it. However, the Court considered that the Commission’s interpretation could not be upheld, and gave a clearly different interpretation to the regulation from the one contained in the note. The Court concluded that ‘an interpretative note cannot have the effect of modifying the mandatory rules contained in regulation No 1626/85.’30 This reasoning makes clear that the meaning and scope of secondary (and in fact also primary) Community law provisions encompass the meaning and scope that the Court itself gives to these rules. An interpretative note of the Commission cannot change this, and as such the Court clearly considers its own interpretation superior to that of the Commission. 25 Case

19/77 Miller v Commission [1978] ECR 131, p 158. In this case the possible applicability of the principle of legitimate expectations was also addressed by A-G Warner. See Subsection 10.5.1 on this aspect of the case. 26 Cf also Mortelmans (1979), p 24. 27 Case 74/69 Krohn [1970] ECR 451, para 9. See also Subsection 8.3.3.4 on this case. 28 Case C–266/90 Soba [1992] ECR I–287. 29 See also Section 6.3 in more detail on this. 30 Para 19. Cf also Case C–309/94 Nissan [1996] ECR I–677, para 22.

Indirect Legal Effects for the Judiciary 369 More recently, the Court confirmed its power in this respect in the France v Ladbroke Racing and Commission Case, by holding that: State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Community courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 92(1) of the Treaty. 31

This quotation illustrates that not only is the Court not required to simply follow the Commission’s interpretation, but it is actually not allowed to do so, if it is to perform its task duly.32 This was expressed in even more explicit terms by Advocate-General Cosmas, reasoning that: [Such] a comprehensive review … does not, of course, supplant the administrative work of the Commission but constitutes a correct exercise of judicial tasks in a legal order — like the Community legal order — governed by the principle of legality and the rule of law.33

There may be just one exception to this, namely when the legislative act itself refers to a Commission interpretative and/or decisional act. The Court’s judgment in the The Queen v The Licensing Authority Case is a clear illustration of this.34 In that case, the Court not only took account of the interpretative Council declaration with a view to interpreting the concept of an ‘essentially similar medicinal product’,35 but also referred to the fact that the definition as contained in that declaration was used in Commission guidelines. It emphasised in this respect that the annex to the directive in question stipulated that applications are to be made in a way which takes account of the rules laid down in the guidelines. Yet, it must be noted that, quite remarkably, in a series of more recent judgments involving the 1997 Communication on certain legal aspects concerning intra-EU investment (the ‘Golden Share’ Communication), the Court appears to have taken a less reticent approach.36 As the Court itself explains, [i]n that communication, the Commission interpreted the relevant Treaty provisions concerning the free movement of capital and freedom of

31 Case C–83/98 P France v Ladbroke Racing and Commission [2000] ECR I–3271, 32 Cf also Senden and Hancher (2000), p 103. 33 Points 15 and 16 of the opinion. 34 Case C–368/96 The Queen v The Licensing Authority [1998] ECR I–7967. 35 See below Subsection 9.4.2.1 on this aspect of the case. 36 See also Subsections 3.3.2 and 5.3.2 on this communication.

para 25.

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establishment, inter alia in the context of procedures for the grant of general authorisation or the exercise of a right of veto by public authorities.37

The Commission argued in these cases that respectively the French, Belgian and Portuguese laws in question were contrary to the criteria laid down in the communication and thus infringed in particular (ex) Articles 52 and 73b EC. Therefore, the Commission brought infringement proceedings under Article 226 EC. In considering whether the national legislation at issue might be justified, the Court referred to the 1997 Communication in support of its own reasoning and interpretation of the relevant Treaty provisions, stating that ‘[the interpretation-LS] is also apparent from the 1997 Communication … .’38 In doing so, the Court did not seem to be aware of or to feel held back by the objections raised by the European Parliament against the adoption of this communication.39 9.4.1.2

A Dual Approach of the Court of First Instance

The Court of First Instance appears somewhat dual in its approach to interpretative Commission acts. Sometimes, it clearly leaves them aside in its interpretation of the Community law at issue in the case before it, even when they have been evoked by (one of) the parties. In a series of cases the claimants thus sought the annulment of Commission decisions in so far as these contained a prohibition of exchange of data in aggregated form, which they deemed inconsistent with the Commission’s Notice concerning agreements, decisions and concerted practices in the field of cooperation between undertakings.40 They also considered that in the Seventh Report on Competition Policy, information exchange systems not allowing for the identification of the data of individual undertakings had been admitted under the competition rules by the Commission. In all, the claimants considered that the prohibition contained in the Commission decisions amounted to an unlawful broadening of the scope of Article 85 (now 81) EC. The Commission argued that the decisions did not go against the Notice or the Seventh Report. In its judgments in these cases, the CFI based its reasoning exclusively on its own interpretation of Article 85(1) (now 81(1)) EC and did

37 Case C–367/98 Commission v Portugal [2002] I–4731, para 21; Case C–483/99 Commission v France [2002] ECR I–4781, para 18; Case C–503/99 Commission v Belgium [2002] ECR I–4809, para 17. 38 Respectively paras 43 (Belgium), 43 (France), 47 (Portugal). 39 See Subsection 3.3.2. 40 Cases T–310/94 Gruber+Weber v Commission [1998] ECR II–1043; T–334/94 Sarrio Sa v Commission [1998] ECR II–1439; T–347/94 Mayr-Melnhof Kartongesellschaft v Commission [1998] ECR II–1751; T–354/94 Stora Kopparsberg Bergslags AB v Commission [1998] ECR II–2111.

Indirect Legal Effects for the Judiciary 371 not take into account how the Commission had interpreted this provision in the said notice and report. In particular, the CFI concluded that the prohibition, in so far as it aimed at preventing the exchange of purely statistical information that could not be individualised, went further than necessary.41 Yet, in other cases the CFI has appeared less reticent to involve interpretative acts in some way in its interpretation of Community law or at least seems to have felt compelled to give them some attention. This occurred for instance in Joined cases European Night Services, in which the parties referred to the De Minimis Notice of the Commission with a view to the interpretation of (ex) Article 85(1) EC.42 They claimed that their agreement involved a negligible market share and therefore fell outside the scope of this provision, according to the interpretation that had to be given to this provision on the basis of the notice. The Commission argued that according to its notice, (ex) Article 85(1) applies to an agreement when the market share of the parties involved in the agreement amounts to at least 5 per cent. In its ruling the CFI did not set the notice aside as an irrelevant element, but argued that the mere fact that the threshold of 5 per cent had been reached did not suffice for the conclusion that (ex) Article 85(1) had been infringed, and that this was recognised in the notice itself. It considered in particular that: Point 3 of that notice itself states that ‘the quantitative definition of ‘appreciable’ given by the Commission is, however, no absolute yardstick’ and that ‘in individual cases … agreements between undertakings which exceed these limits may … have only a negligible effect on trade between Member States or on competition, and are therefore not caught by Article 85(1). [… ] It is noteworthy, moreover, if only as an indication, that that analysis is corroborated by the Commission’s 1997 notice on agreements of minor importance … ’ (emphasis added).43

So, in a way, the CFI used the Commission notice here as a confirmation of its own interpretation of the Treaty provision at issue.44 It also did so at another point in the judgment, where it referred to the Commission Notice of 1993 concerning the assessment of cooperative joint ventures pursuant to Article 85 of the Treaty with a view to setting the conditions.45

41 Case T–310/94 Gruber+Weber v Commission [1998] ECR II–1043, para 178. 42 Joined cases T–374/94, T–375/94, T–384/94 and T–388/94 European Night

Services & Others v Commission [1998] ECR II–3141. 43 Para 102 of the judgment. 44 In fact, the issue could also have been presented as a question of self-binding effect of the Commission to the notice, but this was not done. 45 Para 137. See also Subsection 10.5.3 on these cases.

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9.4.1.3

Actual ‘Covering’ of the Commission’s Interpretation

The foregoing does not, of course, alter the fact that sometimes the Court’s reasoning may actually ‘cover’ the interpretation given by the Commission in an interpretative act. That is to say, the Court’s interpretation of Community law can in fact coincide with the interpretation the Commission has given in an interpretative act. A series of cases concerning the question whether some Member States were infringing Article 48(4) (now 39(4)) EC provides a good illustration of this.46 In 1988, the Commission adopted Communication 88/C 72/02: Freedom of movement of workers and access to employment in the public service of the Member States — Commission action in respect of the application of Article 48(4) of the EEC Treaty.47 In this communication, the Commission considered that functions and posts in bodies responsible for administering commercial services, such as public transport, airlines, television companies and the like, would only rarely fall within the scope of the exception provided for by (ex) Article 48(4). As Greece, Luxemburg and Belgium had maintained nationality conditions for access to employment in such areas, the Commission initiated infringement proceedings against them on the ground that they were failing to fulfil their obligations under the said article. Before the Court, the Greek government raised objections to the Commission’s ‘global approach’ in the communication. It argued in particular that the Commission must examine the posts concerned on a caseby-case basis. It alleged that by excluding in a communication entire areas from the scope of the Article 48(4) derogation, in the absence of Community rules and without providing more details of the posts concerned, the Commission had attempted to exercise powers that it does not have. As a result, the burden had been imposed on the Member States to prove the contrary in specific individual cases.48 The Court did not consider this problematic, however, as it in fact covered the approach of the Commission49 by holding that the Member State may not generally make all the posts in the areas concerned subject to a nationality condition without exceeding the limits of the

46 Case C–473/93 Commission v Luxemburg [1996] ECR I–3207, Case C–173/94 Commission v Belgium [1996] ECR I–3265 and Case C–290/94 Commission v Greece [1996] ECR I–3285. See for another example Case C–194/94 CIA Security International SA v Signal SA and Securitel [1996] ECR I–2201, also mentioned in Subsection 8.5.1, in which the relevance of the Commission interpretative communication was not elucidated but the views of the Court and the Commission actually coincided. Cf also Senden (1997), p 228. 47 OJ 1988, C 72/2. 48 Case C–290/94 Commission v Greece [1996] ECR I–3285, para 31. 49 Cf also Mortelmans (1997), pp 33–37.

Indirect Legal Effects for the Judiciary 373 exception provided for by Article 48(4) of the Treaty. The fact that some posts in those areas may, in certain circumstances, be covered by Article 48(4) of the Treaty cannot justify such a general prohibition.50

The interpretation given to (ex) Article 48(4) in the Commission communication was clearly based on earlier case law of the Court, identifying the criteria for the interpretation of the exception contained in Article 48(4). This may explain why the Court did not seem to have any problem with actually covering the interpretation given in the Commission communication. The judgments in the above cases should then be seen, firstly, as a confirmation of the earlier case law and, secondly, as a logical continuation of the line of reasoning set out in that case law. Or, in my view, also without the communication the Court would have come to the same interpretation of (now) Article 39(4) EC.51 It is logical, however, that where an interpretative act lacks such a basis in case law 52 there is less likelihood that the Court’s interpretation will coincide with that of the Commission, as it has not yet committed itself to a certain interpretation.53 9.4.1.4

Conclusion

To conclude, the cited case law shows that overall the ECJ perceives its power of interpretation as a monopoly on binding and authentic interpretation of Community law.54 In exercising this power the Court appears not very willing to take account of Commission interpretative and decisional (in so far as interpretative) acts, let alone impose an obligation on itself to do so. In my view, the limited relevance the Court attributes to interpretative Commission acts and the full review it exercises in fact in this respect, are in line with the interpretative power given to the Court on the basis of Articles 220 and 234 EC. Quite naturally, the Court does not wish to create the impression that it is guided or governed by such acts, as it would thereby jeopardise this monopoly and weaken its own position.

50 Paras 35–36. 51 Mortelmans

See in the same sense the other judgments mentioned in note 46. (1997), p 35, does not appear to be of the same opinion, as he considers that some Member States will later have regretted not bringing an action for annulment of the communication. 52 As seems to be the situation as regards the act at issue in the aforementioned Soba Case, ibid note 28. At least, the facts of that case did not make clear whether it had such a basis in case law. 53 Although of course the Court is free to change its earlier views on the interpretation of Community law provisions. Eg Joined cases C–267/91 and C–268/91 Keck and Mithouard [1993] ECR I–6097. 54 Cf von der Groeben et al (1997), p 373, and Bernhardt (1981), p 23.

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A possible explanation for the more ‘open’ attitude of the CFI is the nature of the proceedings the CFI has to deal with, which are in particular actions for annulment of Commission decisions in the area of competition law and state aid. As a result, it is more often confronted with interpretative and decisional acts of the Commission, which are frequently adopted in these areas, and consequently also with their possible legal effect. But clearly the role that the CFI is willing to assign to this type of soft law instruments is at most that of voluntary interpretation aid, to be used for the purpose of confirming an interpretation it has already reached on the basis of Community hard law.

9.4.2 9.4.2.1

Intermezzo: The Role Assigned to Interpretative Declarations A Favourable Approach to Interpretative Council Declarations

To be distinguished from the interpretative Commission instruments, discussed in the previous section, are the interpretative declarations that are adopted by the Council in the framework of the adoption of a legislative act and that indicate how provisions of this act have to be understood.55 The Court appears more willing to take account of these declarations, albeit under certain conditions. The Auer Case provides a first clear example of this. In respect of the profession of veterinary surgeon, the Court held in this case that the conclusion that the personal field of application of the provisions on free movement of services and the right of establishment has to be determined on each occasion without any distinction on the grounds of nationality was fully confirmed by a declaration concerning the definition of the persons covered by the Directives, which was recorded in the minutes of the meeting of the Council during which the Directives relating to the mutual recognition of diplomas … were adopted.

According to the declaration the Council reaffirms that it is to be understood that freedom of establishment, particularly for the holders of certificates obtained in other Member States, must be accorded on the same terms to nationals of other Member States and to nationals of the Member State concerned, as is the case with other Directives (emphasis added).56 55 See also Subsection 5.5.3 on this kind of declarations. 56 Case 136/78 Auer [1979] ECR 437, paras 25–26, Case C–292/89

ECR I–745, paras 17–18.

ex parte Antonissen [1991]

Indirect Legal Effects for the Judiciary 375 In Case 324/82 Commission v Belgium, the Court did not as such discard the possibility of taking into account a certain interpretation contained in a declaration in the minutes of a Council meeting, but dismissed the Belgian invocation of this declaration on the ground that it did not contain any precise statement capable of supporting the Belgian argument.57 In the later Egle Case, the Court used a joint declaration of the Commission and the Council, contained in the minutes of the session in which the directive at issue was adopted, to confirm an interpretation reached already on the basis of the wording and terms of the directive itself.58 On the basis of Article 4(1)a thereof, the Court concluded that the four years of education and practical training provided for by the German Fachhochschule for architects must be regarded as four years of full-time studies in the sense of this provision. It considered this finding supported by the statement in the declaration that ‘periods of practical training incorporated into the course culminating in an examination do not affect the full-time nature of such training’. The Court’s willingness in these cases can be explained in particular by its effort to interpret Community law in the light of the historical development of the legislative act at issue and to establish the intention of the adopting institution(s).59 Yet, this willingness is not unlimited and depends on a number of conditions, the most apparent of which is the one formulated in the Antonissen Case. In this case the Court held that a declaration of the Council recorded in the Council minutes at the time of the adoption of a legislative act cannot be used for the purpose of interpreting a provision of secondary legislation where, as in this case, no reference is made to the content of the declaration in the wording of the provision in question. The declaration therefore has no legal significance (emphasis added).60

This quotation makes clear that the Court only takes account of a Council declaration as an expression of the Council’s will to understand the legislative provision in a certain way if the legislature itself has made reference to the declaration in the legislative act.

57 Case 324/82 Commission v Belgium [1984] ECR 1861, paras 26 and 33. 58 Case C–310/90 Egle [1992] ECR I–177, para 12 in particular. 59 Cf in this sense also Bleckmann (1982), pp 1178–79 and Hartley (1996), p 275. 60 Case C–292/89 ex p Antonissen [1991] ECR I–745, paras 17–18. Confirmed in Case

C–25/94 Commission v Council [1996] ECR I–1469, para 38; Case C–329/95 VAG Sverige [1997] ECR 2675, para 23 and Case C–206/98 Commission v Belgium [2000] ECR I–3509, para 40. See Hartley (1996), pp 274–78, for ‘history’ preceding the Antonissen Case.

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In the The Queen v The Licensing Authority Case61 there was no such reference. Interestingly, however, the Court on the one hand confirmed the above condition, while on the other adding that inasmuch as it serves to clarify a general concept such as that of an ‘essentially similar medicinal product’, as used in particular in Article 4.8(a) (iii) of Directive 65/65 … , a declaration of that kind may be taken into consideration when interpreting that provision. (para 27 — emphasis added)

At first sight, this finding seems difficult to reconcile with the condition formulated in the Antonissen Case. At least, the question arises as to how to understand it. In my view, what the Court has done in the The Queen v The Licensing Authority Case is create a distinction between two possible ways of taking account of Council declarations. Firstly, a Council declaration can be put forward with the purpose of establishing the Council’s — subjective — intention as to how to interpret a certain legislative provision. In that event, a connection must have been established between the legislative act and the declaration, as an expression of this intention. Furthermore, such a connection or reference can also be said to be required as an expression of the EP’s acceptance of a certain interpretation, in the case that the legislation at issue has to be adopted under the co-decision procedure.62 Secondly, a Council declaration can also be used for the purpose of (contributing to) the establishment of the — objective — meaning of a legislative act by the Court. In that event, no such connection or crossreference is required. Further, in both cases, before Council declarations can actually be used as an aid for interpretation, their terms and meaning must be sufficiently clear and unequivocal and they must have been published, so that those concerned can know about them.63 Since the ratification of the Treaty of Amsterdam, such a publication requirement is actually contained in Article 207(3) EC, stipulating that when the Council acts in its legislative capacity, statements in the minutes shall be made public. Moreover, as regards the first way, a number of other conditions have to be fulfilled before such a declaration can be used as an aid for interpretation, in the sense of expressing the legislature’s intention. These apply in particular where a legislative act to which a Council declaration relates, or other primary or secondary Community law, does not necessarily

61 Case C–368/96 The Queen v The Licensing 62 Cf also Gormley (1998), pp 316–17. 63 Cf also Herdegen (1991), pp 61–64.

Authority [1998] ECR I–7967.

Indirect Legal Effects for the Judiciary 377 entail a certain interpretation, which was indeed the case in Antonissen.64 As A-G Darmon stated in his opinion in this case, such a declaration can only constitute a guide for interpretation when, firstly, the declaration was made on the occasion of the adoption of a legislative act which the Council has the power to adopt and only as regards that measure.65 This is because, under the Treaties, no competence is conferred on the Council to give interpretations and thus such an interpretative declaration can only be seen in the context of its own legislative activities. Secondly, there may be no derogation from or incompatibility with the legislative act and, thirdly, such a declaration cannot constitute a parallel means of legislation. The only aim may be to clarify the meaning of the legislative act, and not to fill a gap in Community rules. On the basis of these criteria, Darmon concluded that the declaration at issue in the Antonissen Case constituted ‘parallel legislation’ which could not, even by way of interpretation, be taken into account. As such, these declarations can be said to be treated as part of the travaux préparatoires, and taken into account in the same way. Thus, from the judgment in the France & Others v Commission Cases,66 it can be inferred that travaux préparatoires can provide assistance for the interpretation of Community concepts, provided that the documents concerned express clearly the intention of the authors of the legislative act, which was not deemed the case in the given instance. Since the textual and historical interpretations of the regulation at issue did not permit the Court to assess its precise scope, the Court considered that it had to be interpreted by reference to its purpose and general structure. Furthermore, one might say that interpretative Council declarations are taken into account in the same way as for instance proposals for legislation.67 9.4.2.2

An Unfavourable Approach to Member State Declarations

At the same time, it must be emphasised that the Court is not prepared to take note of declarations issued by Member States at the time of adoption

64 The declaration provided for a time limit as to the right of residence, whereas primary and

secondary Community law did not. Cf also the Tögel Case, discussed below in Subsection 9.4.3.1. 65 See on this last point, the Court in this sense in Case 11/76 The Netherlands v Commission [1979] ECR 245, para 11. 66 Joined cases C–68/94 and C–30/95, France & Others v Commission [1998] ECR I–1375, paras 167–68. It is not clear from the facts of the case which travaux préparatoires were actually at issue. 67 Eg Case C–130/95 Giloy [1997] ECR I–4291, paras 32–34, in which the Court referred to the Commission proposal, the opinion of the ESC and the joint position of the Council in order to confirm an interpretation of Regulation 2913/92 establishing the Community Customs Code, already derived from the wording thereof. In Case C–104/96 Rabobank [1997]

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of a legislative act. This was made clear in for instance Case 143/83 Commission v Denmark.68 The Commission brought infringement proceedings against the Danish government, on the ground that it had not fulfilled all the obligations resulting from Directive 75/117 on equal pay for men and women, in particular by providing in Danish law only for the same salary for the same work without speaking of work of equal value. The Court agreed that this indeed amounted to a restriction of the scope of the equal pay principle and that this conclusion was not affected by the fact that during the preparatory work of the adoption of Directive 75/117, the Danish government entered a declaration in the Council minutes to the effect that Denmark deems that the expression ‘same work’ can continue to be used in Danish labour law. In particular, it stated: The Court has consistently held that such unilateral declarations cannot be relied upon for the interpretation of Community measures, since the objective scope of rules laid down by the common institutions cannot be modified by reservations or objections which Member States may have made at the time the rules were being formulated.69

This consistent case law includes inter alia the early Case 38/69 Commission v Italy, in which the Court held that the scope and effect of the decision in question must be assessed in the light of its terms and could therefore not be restricted by reservations or statements which in this case the Italian government had made in the course of drawing up the measure concerned.70 In the later Denkavit Case, the Court also made clear that expressions of intent of Member States in the Council have no legal status if they are not actually expressed in the legislation. As legislation is addressed to those affected by it, they must be able to rely on what it contains. The principle of legal certainty requires this.71 9.4.2.3

Conclusion

Arnull has expressed the opinion that statements or declarations of the Member States and of Community institutions, including the Council, are ECR I–7211, paras 25–27, the Court concluded on the basis of a literal interpretation of the directive in question that a certain matter was not covered by it. It confirmed this conclusion by referring to a proposal for a directive that had not yet been adopted and that regulated the matter in dispute. Cf also Case C–321/96 Mecklenburg [1998] ECR I–3809, para 28. 68 Case 143/83 Commission v Denmark [1985] ECR 427. 69 Para 12. 70 Case 38/69 Commission v Italy [1970] ECR 47, para

12. Cf also Case 237/84 Commission v Belgium [1986] ECR 1247. 71 Joined cases C–283/94, C–291/94 and C–292/94 Denkavit [1996] ECR I–5063, para 29.

Indirect Legal Effects for the Judiciary 379 (to be treated as) very much the same. Further, with reference to the Antonissen Case, he says that ‘Whether or not they are made public, such statements cannot affect the objective meaning of the measure.’72 Nonetheless, he recognises, in particular pursuant to the above The Queen v The Licensing Authority Case, that they can be taken into consideration in so far as they serve to clarify a general concept in the directive. It has been seen in the preceding subsections, however, that the Court in fact takes a different approach to declarations of the Member States and to interpretative Council declarations, and rightly so in my opinion. These different approaches are justified by the different purposes and functions of these acts; the Member State declarations often constitute in fact a kind of dissenting opinion or particular interpretation of a certain aspect of the legislative act, without which a Member State may not be willing to adopt it. These — subjective — declarations have thus to be seen primarily in the context of (the facilitation of) the decision-making process.73 In view of this, it is only logical that the Court is not willing to take account of Member State declarations, not even as a voluntary interpretation aid, as they usually aim at limiting or making reservations as to the scope of the adopted legislative act. The prevailing view in legal writing is also that such declarations should not be used as an interpretation aid.74 With respect to Council declarations, it can be concluded firstly that the Court accepts them as a voluntary interpretation aid, in the sense that they can contribute to its establishing or clarifying the — objective — scope and meaning of the legislative act. This may occur in the framework of in particular a teleological, but also a literal and contextual interpretation of the act at issue. Secondly, it has been found that these declarations can also be used in the framework of a subjective-historical interpretation of a legislative act, with the purpose of establishing the Council’s intention and agreement on a certain interpretation of this act. So, unlike Member State declarations, the Council declarations aim at establishing a common interpretation of, and hence intention regarding, certain aspects of the adopted act to which all the Member States agree. Although it is sometimes argued that Council declarations also affect legal certainty or transparency and therefore should not be taken into account,75 I would argue that the Court must consider them even a

72 Arnull 1999, pp 521–22. 73 See also Subsection 5.5.3 and Bleckmann (1982), p 1179. 74 Eg Herdegen (1991), p 66. 75 Eg Gormley (1998), p 317. In a declaration attached to

the Inter-institutional Agreement on common guidelines for the quality of drafting of Community legislation (OJ 1999, C 73), the EP rejected the use of explanatory statements by both the institutions and the Member States, and considered that Community legislative acts must be self-explanatory. In the ‘Council statements’ attached to this Agreement, the Council considers the use of

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mandatory interpretation aid, provided that the conditions identified in Subsection 8.4.2.1 are fulfilled. For, if these conditions are all fulfilled, and Council declarations are taken into account by the Court, they may in fact contribute to legal certainty and help to do justice to the (maintenance of the) institutional balance.76

9.4.3 9.4.3.1

The Role Assigned to Preparatory and Steering Instruments A Favourable Approach

Preparatory and steering instruments will be discussed here under the same heading, as the Court’s attitude to these two types of soft law instruments is comparable, and in particular less reticent than it is to the interpretative instruments adopted by the Commission. The starting point can thus be taken that, under certain conditions, the Court of Justice does not hesitate to use instruments such as recommendations, resolutions and programmes as an aid for the interpretation of Community law. Both early and recent case law of the Community courts show evidence of their use as a confirmation of a certain interpretation of Community law already established on the basis of primary and/or secondary Community law provisions, or at least in conjunction with such provisions.77 It is no exaggeration to say that this is in fact a well-established practice. As regards preparatory instruments, a good illustration is provided by the aforementioned Auer Case. In this case the Court concluded that the personal field of application of the measures relating to the free movement of services and the right of establishment have to be determined on each occasion without any distinction on the grounds of

interpretative statements by the Community legislature to be compatible with Community law, insofar as they do not contradict the legislative act concerned and are made public. Yet, it shares the Parliament’s view to the extent that, where possible, interpretative statements should be avoided and their contents included in the text of the act. 76 Nonetheless,

there is also a duty upon the drafters of a binding act to make it as selfexplanatory as possible; point 17 of the aforementioned Inter-institutional Agreement thus provides that A reference made in the enacting terms of a binding act to a non-binding act shall not have the effect of making the latter binding. Should the drafters wish to render binding the whole or part of the content of the non-binding act, its terms should as far as possible be set forth as part of the binding act. 77 Cf

also Mertens de Wilmars (1986), p 601, and Borchardt and Wellens (1987), p 699.

Indirect Legal Effects for the Judiciary 381 nationality, deriving this from inter alia the general structure of the general programmes of 18 December 1961, drawn up in implementation of (ex) Articles 54 and 63 EC.78 The use of various steering instruments as an interpretation aid is illustrated by the following cases. In the Hauer Case79 the questions referred by the national court concerned the validity of a Council regulation, in particular its compatibility with fundamental rights (in this case the right to property and the freedom to pursue trade or professional activities). With a view to establishing that fundamental rights form part of Community law, the ECJ referred to its judgment in the Nold Case and the different elements identified in that judgment for establishing the scope of these rights.80 To this it added that this conception was later recognised by the joint declaration of the EP, the Council and the Commission of 5 April 1977, which recalls the case law of the Court and refers to the rights guaranteed by the national constitutions and the European convention for the protection of human rights and fundamental freedoms. That declaration thus confirmed the view that fundamental rights form part of Community law and provide a standard for the behaviour of the Community institutions. In the Dusseldorp Case, a Council resolution was used to confirm a conclusion already reached on the basis of a contextual interpretation of the directive and regulation at issue. The Court held in particular that: It thus follows from the provisions of the Directive and the Regulation, and from the general scheme of the latter, that neither text provides for the application of the principles of self-sufficiency and proximity to waste for recovery. That conclusion is borne out by the Council resolution of 7 May 1990 on waste policy … , which is referred to in the second recital in the preamble to the Directive. In that resolution, the Council specifies that the objective of self-sufficiency in waste disposal does not apply to recycling (emphasis added).81

78 Case 136/78 Auer [1979] ECR 437, para 23. Cf also Joined cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, in which the Court used the general programme for the abolition of restrictions on the free movement of services as an interpretation aid. See furthermore Case 71/76 Thieffry [1977] ECR 765, para 14 and Joined cases 281, 283–85 and 287/85 Germany, France, Netherlands, Denmark and UK v Commission [1987] ECR 3203, paras 17–18, discussed below in Section 9.6. 79 Case 44/79 Hauer [1979] ECR 3727, para 15. 80 Case 4/73 Nold [1974] ECR 491. 81 Case C–203/96 Dusseldorp [1998] ECR I–4075, paras 30 and 31. Cf also Case 43/72 Merkur [1973] ECR 1055, paras 13–14, in which a Council resolution was used in order to establish the object of a subsequent Council regulation. In Case 131/86 UK v Council [1988] ECR 905, paras 26–27 the Court referred to a Council resolution with a view to establishing the objective of certain measures and in the light of this the appropriate legal basis.

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In the Deutsche Bahn v Commission Case, the Court of First Instance followed a similar approach. It did not discard as irrelevant Recommendation 84/646/EEC on strengthening the cooperation of the national railway companies of the Member States in international passenger and goods transport, but referred to it as confirmation of the viewpoint it had already established.82 The Tögel Case is interesting in two respects. This case concerned inter alia the question of how Annexes IA and IB to the Council Services Directive relating to public procurement have to be interpreted, in particular whether certain services fall inside or outside the scope of these annexes. The question arose whether the annexes had to be interpreted in accordance with the Common Procurement Vocabulary (CPV), laid down in the Commission recommendation on the use of the Common Procurement Vocabulary for describing the subject-matter of public contracts. According to A-G Fennelly, the recommendation could not be deemed to have the interpretative value ‘designed to supplement binding Community provisions’, because neither the CPV nor the CPV recommendation refers to the use of the annexes to the Services Directive for determining the appropriate contract-award procedure.83 The Court concluded that according to point 1 of Recommendation 96/527, the CPV is intended only to be used for the drawing up of notices and other communications published in connection with public tendering procedures. It follows that the designations of services listed in Category No 2 of Annex I A and Category No 25 of Annex I B cannot be interpreted in the light of the CPA or the CPV (emphasis added).84

From this statement one can infer, firstly, that it is not excluded that a recommendation could have interpretative value independent of primary or secondary Community law indicating a certain interpretation, on condition that the intention to use the soft law act for this purpose can be identified. Clearly, such an intention can be established most easily if the soft law act and the legislative act have been connected by means of a reference.85 Secondly, it appears that the Court may take a Commission steering act into account if it is clear that this Commission act forms in fact part of the intention of the legislature. That is to say, when there is a reference between the legislative act and the Commission act, the Court is apparently 82 Case T–229/94 Deutsche Bahn v Commission [1997] ECR II–1689, para 83 Case C–76/97 Tögel [1998] ECR I–5357, point 34 of the opinion. 84 Paras 35–36 of the judgment. 85 Cf in the same sense the Antonissen Case in respect of interpretative

discussed above in Subsection 9.4.2.1.

42. Council declarations,

Indirect Legal Effects for the Judiciary 383 prepared to take this as an expression of the legislature’s wish to interpret the legislative act in the light of the Commission act. At first sight it seems strange that the Court is obviously willing to accept this also when it is the soft law act that refers to the legislative act and not the other way around. Yet, this acceptance can be explained by the fact that in this case the Commission recommendation did not appear out of thin air, since the preamble of the Services Directive in fact contains an ‘assignment’ to establish a vocabulary such as contained in the recommendation. In other cases, however, the role assigned to steering soft law acts has remained somewhat obscure. Illustrative in this respect is the series of positive action cases and the apparently limited influence that Council Recommendation 84/635/EEC on the promotion of positive action for women had on the reasoning of the Court.86 In his opinion in the Kalanke Case, A-G Tesauro held, with reference to the Grimaldi judgment,87 that although a recommendation is not a legally binding instrument, it may, as the Court has held, certainly be used as an aid for interpreting other Community provisions which it is intended to complement.88

Yet, although the Court did refer in this case and in the Marschall, Badeck and Abrahamsson Cases to the (third recital of the) recommendation and considered it to be part of the applicable legal framework, it did not actually include it in its interpretation of Directive 76/207 and Article 141(4) EC.89 So, although the use of preparatory and steering instruments as an interpretation aid is a well-established practice of the Court, this does not mean that it is a consistent practice. 9.4.3.2

Conclusion

To summarise, the foregoing has made clear that preparatory and steering instruments can have interpretative value, by lending (more) support to a certain interpretation of Community hard law where interpretation could in fact go different ways. Yet, its role must not be overestimated, as the Court has never given a particular interpretation of Community law on the sole basis of such acts, but only in conjunction with primary or secondary Community law indicating the same interpretation. 86 Case C–450/93 Kalanke [1995] I–3051; Case C–409/95 Marschall [1997] ECR I–6363; Case C–158/97 Badeck [2000] ECR I–1875; Case C–407/98 Abrahamsson [2000] ECR I–5539. 87 This case will be discussed in detail below in Section 9.5. 88 Point 20. On the one hand, this statement can be seen as broadening the scope of the Grimaldi judgment, because the Court there referred explicitly only to ‘national courts’. On the other hand, it can be seen as a restriction of that judgment, because the A-G uses more non-committal terms. 89 Cf also Case C–154/96 Wolfs [1998] ECR I–6173.

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Legal Issues of Community Soft Law

Nonetheless, it has also been found that the Court’s case law permits the conclusion that the Court might accept such an isolated effect of Community soft law. This in the event that a reference has been made between the legislative act and the soft law act, which can be taken as an expression of the legislature’s intention to interpret the legislative act in the way provided for in the soft law act. In my view, such an approach is (again) in line with the requirements imposed by legal certainty and institutional balance, provided that the soft law act meets the conditions identified above in Subsection 9.4.2.1 in respect of interpretative Council declarations. In the event that the soft law act cannot be considered in the light of the legislature’s intention, it appears that the Court’s approach is not always consistent as regards taking account of preparatory and steering acts. They are then just one of the possible elements in the Court’s interpretation of Community law, and are taken into account at its own discretion. So, the Court has evidently assigned these instruments the role of voluntary interpretation aid. I will elaborate on the desirability of this state of affairs in Section 9.7, after first taking a look at the role attributed to Community soft law in national courts.

9.5

9.5.1

THE ROLE OF COMMUNITY SOFT LAW IN NATIONAL COURTS: INTERPRETATION AID OR DUTY OF CONSISTENT INTERPRETATION?

In Principle a National Competence

On the basis of the arguments given above in Subsection 8.5.2 in respect of the national legislature, it can be argued here as well that it is in principle within the national courts’ own competence to decide whether or not to take account of Community soft law instruments in their interpretation of Community and national (implementing) law. Moreover, the early case law of the Court also points in the direction of the use of Community soft law by the national courts as nothing more than a voluntary interpretation aid. Thus, the Witt Case concerned the explanatory notes to the common customs tariff to be applied by the national customs authorities. The Court merely held that these notes are ‘an important factor as regards interpretation in all cases where the provisions of the tariff provoke uncertainty’ (emphasis added).90

90 Case

149/73 Witt [1973] ECR 1587, para 2.

Indirect Legal Effects for the Judiciary 385 Also illustrative is the opinion of Advocate-General Warner in the Frecassetti Case,91 in which he stated that he did not think it correct to say that the interpretation of a recommendation can never be relevant to a question at issue before a national court. Where, for example, a national statute has been passed for the express purpose of giving effect to a recommendation the correct interpretation of that statute may well depend on that of the recommendation. Whether it does so depend or not is a matter for the national court concerned. The position in this regard is, I think, analogous to that obtaining in regard to Directives, as to which see case 32/74 Haaga (1974) ECR 1201. The circumstance that Directives are binding on Member States whereas recommendations are not cannot in my opinion make any material difference.

The Court got round this issue by simply examining the substantive scope of the recommendation and concluding that the matter at issue fell outside this scope. At issue in the so-called Perfume Cases92 was the legal status of letters sent by the Commission to a number of companies, stating that it saw no reason to take action against the agreements they had concluded.93 The Court considered that such letters are based only upon the facts in the Commission’s possession, reflecting the Commission’s assessment and bringing to an end the Commission examination procedure. It continued that they do not have the effect of preventing national courts, before which the agreements in question are alleged to be incompatible with Article 85, from reaching a different finding as regards the agreements concerned on the basis of the information available to them. Whilst it does not bind the national courts, the opinion transmitted in such letters nevertheless constitutes a factor which the national courts may take into account in examining whether the agreements or conduct in question are in accordance with the provisions of Article 85. (para 13 — emphasis added)

This case law clearly indicates that such Community soft law instruments are deemed at most a voluntary interpretation aid for the national courts.

91 Case 113/75 Frecassetti [1976] ECR 983. 92 Joined cases 253/78 and 1–3/79 Giry and

Guerlain [1980] ECR 2337. Cf also Case 31/80 L’Oréal [1980] ECR 3775, paras 11–12. 93 Although these letters do not as such constitute soft law within the meaning I have given to this concept, they are usually somehow based on (the application of) soft law acts, such as the De Minimis Notice. Cf also Lauwaars (1993), pp 24–25.

386 9.5.2

Legal Issues of Community Soft Law A Shift in the Case Law: The Grimaldi Case

Yet, in later case law the Court went a step further. This can be seen in particular from its judgment in the Grimaldi Case, in which the legal effect of two Commission recommendations was at issue.94 In his opinion in this case, A-G Mischo argued along the same lines as A-G Warner in the Frecassetti Case, confirming the latter’s above consideration. In addition, he referred to the judgment in the Mazzalai Case, in which the Court held that regardless of the effects of the Directive, … an interpretation of the Directive may be helpful to the national court so as to ensure that the law adopted for the implementation of the Directive is interpreted and applied in a manner which conforms to the requirements of Community law.95

In its judgment, the Court considered that the fact that ‘true’ recommendations can not have direct effect,96 does not mean that they ‘cannot therefore be regarded as having no legal effect’. In particular, it went further than the A-G by formulating the following obligation: The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions (emphasis added).97

This finding was confirmed in the Deutsche Shell Case.98 Although this case did not concern a Community soft law act as such, but rather a recommendation adopted on the basis of an international agreement, the Court considered that this fell within the Community legal order. It subsequently held that: Although the recommendations of the Joint Committee cannot confer upon individuals rights which they may enforce before national courts,

94 Case 95 Case

C–322/88 Grimaldi [1989] ECR I–4407. 111/75 Mazzalai [1976] ECR 657, para 10. In fact, the A-G seems somewhat contradictory in his reasoning. On the one hand he considers that the fact that directives are binding instruments and recommendations non-binding is not material and makes reference to a directive-related case. On the other, however, he refrains from referring to the then most recent judgment in the Von Colson and Kamann Case (see below Subsection 9.5.3.1), which clearly goes further than the Mazzalai judgment. 96 See also Subsection 6.2.2. 97 Para 18. Cf also points 31 to 35 of the opinion of A-G Fennelly in Case C–76/97 Tögel [1998] ECR I–5357. 98 Case C–188/91 Deutsche Shell [1993] ECR I–363.

Indirect Legal Effects for the Judiciary 387 the latter are nevertheless obliged to take them into consideration in order to resolve disputes submitted to them, especially when, as in this case, they are of relevance in interpreting the provisions of the Convention (emphasis added).

Evidently, the Court chose far stronger words in this later case law, to the extent of indicating that the national courts no longer have a somewhat non-engaging competence to take recommendations into account, but in fact an obligation to do so.99 In doing this, however, the Court evoked a number of questions, the most obvious one concerning the scope to be given to the obligation it thus formulated (Section 9.5.3). Secondly, does the obligation apply to all national law, and does it exist only as regards recommendations or also other Community soft law instruments (Section 9.5.4)? 9.5.3

The Scope of the ‘Grimaldi Obligation’

What effect are national courts thus required to give to Community soft law acts, following the judgment in the Grimaldi Case? Do they constitute a mandatory interpretation aid, meaning that national courts are under an obligation to take them into account whenever they can contribute to the clarification of the meaning of Community and/or national (implementing) law? Or has the Court formulated a duty of consistent interpretation, which would entail a greater effort, namely to ensure observance of the soft law rules, possibly to the detriment of (the usual meaning of) Community or national (hard) law? The soft law act would then in fact be a standard against which to measure national law. Although the dividing line between these two notions may be considered thin, I think it correct to make such a distinction in particular in view of the arguments to be set out below in Subsection 9.5.3.2. 9.5.3.1

Arguments for a Broad Reading

Arnull has argued that the obligation formulated in the Grimaldi judgment is reminiscent of Von Colson, where the European Court said that national courts were required to interpret their national legislation in the light of the wording and purpose of relevant directives.100 99 In other language versions, the scope of the wording seems to be the same: ‘tenus de prendre les recommendations en considération’ and ‘de nationale rechter niettemin gehouden de aanbevelingen in aanmerking te nemen’. 100 Arnull (1990) (b), p 319. Cf in the same sense Albers (1999), p 121. Van Ooik (1995), p 297 poses the question whether ‘taking into account’ of recommendations should be

388

Legal Issues of Community Soft Law

In the Von Colson judgment, the rather non-committal Haaga and Mazzalai case law evolved further into an unequivocal obligation of consistent interpretation of national law with directives, as the Court held that national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189.101

In favour of such a broad reading of the Grimaldi and Deutsche Shell judgments is the argument that, to a certain extent, there had been a parallel development in respect of recommendations; in these judgments too an obligation was formulated, in contrast to the earlier case law, and this occurred around the same time. Furthermore, as various authors have derived from the Court’s case law, the notion of consistent interpretation with directives can be said to have now evolved into a notion of consistent interpretation with Community law as such.102 It is even argued in this respect that interpretation consistent with directives must be regarded as a specific application of the general principle of law that national law has to be interpreted in the light of all Community law.103 The Court’s judgment in the Hermès Case can be considered a confirmation of this view, as the Court concluded that there is a duty of interpretation of national law consistent with the TRIPS agreement.104 The Dutch College van Beroep Studiefinanciering for instance has also understood the obligation in such a broad way. With reference to the Von Colson and Grimaldi judgments, it thus concluded that the national law on financial study support (WSF) has to be interpreted in conformity with the Erasmus Decision.105

So, at first sight a broad reading of the Grimaldi obligation seems to fit in with the developments which are taking place in Community law at large. As such, it would apparently also fit in with the concern to guarantee the full effectiveness of Community (hard and soft) law. Yet, in my view, the

equated to ‘consistent interpretation as far as possible’ of directives, but does not provide an answer. 101 Case

14/83 Von Colson and Kamann [1984] ECR 1891. According to the later Case C–106/89 Marleasing [1990] ECR I–4135, national courts are required to do so ‘as far as possible’. 102 Cf Jans et al (2002), pp 137–38. 103 Jarass (1991), p 223. Cf also van Ooik (1995), p 297. 104 Case C–53/96 Hermès [1998] ECR I–3603, para 28. See also Case C–165/91 Van Munster [1994] ECR I–4661. 105 Van Ooik (1995), p 296.

Indirect Legal Effects for the Judiciary 389 arguments pleading for a restrictive reading of the Grimaldi and Deutsche Shell case law are more numerous and convincing. 9.5.3.2

Arguments for a Restrictive Reading

A first fundamental objection to a broad reading of the Grimaldi obligation is that the Court refrained, in both the Grimaldi Case and the Deutsche Shell Case, from indicating a legal basis for the obligation thus formulated. As regards the duty of interpretation consistent with directives, the Court has taken great care to identify the legal foundation for this duty: the binding nature of directives pursuant to Article 189(3) (now 249(3)) EC and the principle of Community loyalty as enshrined in Article 5 (now 10) EC. 106 Obviously, as Article 249(4) declares recommendations to be non-binding instruments, this Article can not provide for a similar legal basis. Furthermore, in view of the observations made above in Subsection 8.5.3 on the scope of Article 10 EC in relation to soft law, and the fact that the Court did not refer to Article 10 EC in the Grimaldi and Deutsche Shell Cases, the principle of Community loyalty can not in my view provide a sufficient legal basis in itself for a duty of consistent interpretation. Following on from this, a second argument is that a duty of consistent interpretation of national law with Community recommendations is difficult, if not impossible, to reconcile with the rationale for recognising the notion of consistent interpretation as such. On the one hand, this recognition is inspired by the desire to ensure the primacy of Community law over national law; in the event that national law is not in conformity with Community (hard) law, it has to be left without application. In line with this, the primacy of interpretation consistent with directives and the setting aside of other, national interpretation methods or criteria is often deduced from the primacy of directives in the national legal order as such.107 On the other hand, the notion of consistent interpretation is also inspired by the desire to ensure the primacy of higher Community rules over lower ones more in general.108 In the Case Commission v Germany the Court thus ruled that: When the wording of secondary Community legislation is open to more than one interpretation, preference should be given as far as possible to the interpretation which renders the provision consistent with the Treaty. Likewise, an implementing regulation must, if possible, be given an

106 See Case 14/83 Von Colson and Kamann [1984] 107 See on this Wissink (2001), pp 121–34 108 Cf Bleckmann (as early as) (1982), p 1179.

ECR 1891 and Prechal (1995), p 205.

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Legal Issues of Community Soft Law

interpretation consistent with the basic regulation […]. Similarly, the primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.109

Since recommendations have no primacy over national law and no direct effect in the national legal order,110 and since they have no primacy over primary and secondary Community law,111 it cannot in my view be concluded that there is a duty of consistent interpretation, even if one argues that this duty does not automatically entail the primacy thereof over other interpretation methods. A third argument is that consistent interpretation admits rights and obligations ‘by the backdoor’, also for private parties. Even in the context of consistent interpretation of directives, this indirect (horizontal) effect is being criticised and its limits explored and discussed.112 This criticism can be voiced a fortiori, and even more validly, in respect of recommendations, as in the end the directive is a legally binding instrument, always adopted pursuant to a particular decision-making procedure, whereas the recommendation is not. Moreover, as the Court also acknowledged in the Grimaldi Case, recommendations are often adopted when there is no desire or competence to adopt legislation.113 So, the decision to use soft law may be made precisely because legally enforceable rights and obligations are not wanted, or because there is no legal basis for these. Consequently, a duty of consistent interpretation with recommendations would in my opinion clash with the principle of conferred powers — in its meaning of principle of legality — and the principle of legal certainty. Fourthly, the Court framed its judgments in the Grimaldi and Deutsche Shell Cases in quite different terms from its judgments on interpretation consistent with directives and its subsequent judgments establishing a more general duty of consistent interpretation. Thus, in the above-cited judgment in the Commission v Germany Case the Court chose a wording similar to that in the Marleasing Case. By speaking in the Grimaldi and Deutsche Shell Cases merely of national courts being bound to take recommendations into account, the Court does not seem to have wanted to establish the same obligation as in respect of directives or other hard 109 Case

C–61/94 Commission v Germany [1996] ECR I–3989. See also Wissink (2001), p 115 on ‘verfassungskonforme Auslegung’. 110 See Subsection 6.2.2. 111 This is made clear in particular by the fact that recommendations cannot derogate from this law and are thus subordinate thereto. See also Sections 2.5 and 6.3 in this respect. 112 Eg Jans et al (2002), pp 145–47. 113 See also Subsections 5.4.3 and 5.4.4.

Indirect Legal Effects for the Judiciary 391 Community law. Pleading in favour of this view is also the fact that, unlike the A-G in the Grimaldi Case, the Court refrained from making any reference to the directive-related case law.114 A final point to be taken into account is that neither of the judgments was rendered by the full Court, but only by the second and sixth Chambers respectively. 9.5.3.3

Conclusion: A Mandatory Interpretation Aid

It has been seen that some authors speak of a duty of consistent interpretation also in respect of recommendations, albeit sometimes observing at the same time that the intensity of this duty is less than that of interpretation consistent with directives.115 Yet, in view of the arguments given above for a restrictive reading of the Grimaldi and Deutsche Shell judgments, I consider it rather confusing to speak of such a duty in respect of recommendations. In my opinion, it is more appropriate to situate the scope of the ‘Grimaldi obligation’ somewhere between the two extremes of a voluntary or permissive interpretation aid on the one hand, and a duty of consistent interpretation on the other. That is to say, recommendations should be considered a mandatory interpretation aid for national courts, which means that they are under an obligation to take them into account whenever they can help to clarify the meaning of Community or national (implementing) law. As such, national courts are obliged to include Community soft law as a relevant element in the effort to interpret and apply Community law correctly in a case before them or to establish the meaning of the Community or national (implementing) provision at issue. Yet, this effort does not extend to ensuring observance ‘as far as possible’ of the soft law rules, possibly to the detriment of — the usual meaning and interpretation of — Community or national hard law. Giving this scope to the ‘Grimaldi obligation’ can also be seen as in line with or founded on Article 10 EC; in particular it can be seen as an ‘appropriate measure’ in the sense of that provision, which contributes to ensuring the full effectiveness of Community law and its objectives. When this issue is viewed from the perspective of the concepts of judicial implementation and remedial interpretation, mentioned in Section 9.3, the ‘Grimaldi obligation’ can be seen within the framework of the national courts performing their task of judicial implementation, by possibly clarifying the law at issue in the case before them. However,

114 Cf

also footnote 68 of the opinion of A-G Tesauro in Case C–53/96 Hermès [1998] ECR I–3603, in which he gave a rather restrictive reading to the Grimaldi judgment by holding that according to this judgment a recommendation ‘can be useful to those [national-LS] courts in casting light on the interpretation of national measures.’ 115 Eg Wissink (2001), pp 10, 149 and 374–75.

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the ‘Grimaldi obligation’ does not go beyond that and entail remedial interpretation.

9.5.4

To What Law and Soft Law Instruments Does the Obligation Apply?

The above observation that the obligation applies whenever recommendations cast light on the meaning of both Community law and national (implementing) law merits further consideration. In the Grimaldi Case the Court considered that the obligation applies ‘in particular’ when, (1) the interpretation of national measures implementing the recommendation is at issue or, (2) the recommendation was ‘designed to supplement binding Community provisions’. The Deutsche Shell Case obviously exemplified the second situation, as the Court held that the obligation applies ‘especially’ when recommendations are relevant for the interpretation of the Convention at issue. Although the Court has thus clearly described two situations in which the obligation applies, it has left room for its applicability to be recognised in other situations as well. It has done this not only by adding ‘in particular’ and ‘especially’ in its judgments, but also by formulating the second situation in broad terms that allow for a wide interpretation. It thus seems rather easy to argue that recommendations have been designed to supplement Community provisions in some way, in particular the Council recommendations. As observed in Section 5.4, these are often closely related to EC provisions, which may even be mentioned as the legal basis. This also brings me to the question of whether the Grimaldi obligation must be considered to apply to soft law instruments other than recommendations as well. A number of arguments plead in favour of this. Firstly, recommendations are not the only soft law instruments that aim at transposition into the national legal order. Other steering soft law instruments, such as resolutions and codes of conduct, may also aim at and be transposed into national law. Secondly, other soft law instruments may be designed even more than recommendations to supplement binding Community law. This concerns in particular the interpretative and decisional instruments, discussed in Section 5.3, which have been said to fulfil primarily a post-law function. Thirdly, the observation of the Court in the Grimaldi Case that recommendations are often resorted to when there is no desire or competence for legislation also goes for many other soft law instruments. Yet another argument lies in the fact that the Court formulated the obligation in the Deutsche Shell Case not as regards Council or Commission recommendations, but as regards recommendations of a Joint Committee operating on the basis of an

Indirect Legal Effects for the Judiciary 393 international agreement concluded by the EC. Thereby, the Court has already established the obligation as regards an instrument which cannot be considered to be the formal steering instrument of Article 249(4) EC. Finally, it seems rather arbitrary to consider solely recommendations to be a mandatory interpretation aid, and not to do this in regard to other Community soft law instruments. Yet, a number of arguments plead against such a broad view. To begin with, it can be argued that the recommendation is one of the formal Community legal instruments and that it is only logical, given Article 10 EC, that Member States authorities, including national courts, have to take these into account in their interpretation of related Community and national law. As regards non-formal steering instruments and interpretative and decisional instruments, this is not so self-evident. Secondly, the Court has only ever referred to ‘recommendations’ and not once spoken of ‘acts’ in general. Thirdly, there is no hierarchical relation between the Commission and national courts. The latter are charged with a proper responsibility to apply and interpret Community law and are only compelled to follow the interpretation given to it by the Court and not that given by the Commission in interpretative acts.116 Moreover, it has been seen that the Court itself is not very willing to take any account whatsoever of such interpretative Commission acts, so it actually seems rather arbitrary to impose a heavier burden upon the national courts than upon itself. Particularly in view of this last argument, I would argue that the ‘Grimaldi obligation’ must be considered to apply only to recommendations, for the time being at least and as long as the Court has not explicitly extended this obligation to other soft law instruments. This viewpoint is reinforced by the fact that the Court has assigned to soft law the role of mandatory interpretation aid for national courts and merely the role of voluntary interpretation aid for itself.

9.6

GENERAL IMPLICATIONS OF THE USE OF SOFT LAW AS AN INTERPRETATION AID

In Sections 9.4 and 9.5, I have established the role that Community soft law actually plays in the performance of the judicial task by the Community courts and is supposed to play in the national courts. A final point to be considered now is what general implications this use of soft law as a — voluntary or mandatory — interpretation aid can have. Two such implications come clearly to the fore.

116 Cf

the application of Articles 81 and 82 EC.

394

Legal Issues of Community Soft Law

A first implication of the use of soft law instruments as an interpretation aid is that they can influence or co-determine the lawfulness of Community and national law and hence the rights and obligations that ensue therefrom. As such these instruments can constitute a relevant element in the assessment of whether Community and national behaviour are in line with Community law. This can clearly be seen for instance in the Van Ameyde Case. The first preliminary question in this case aimed in particular at ascertaining whether the directive, Commission recommendation and decision at issue had to be interpreted as authorising certain national provisions of law, agreements and practices. The Court considered in this respect that: The said Directive, recommendation and Decision seeking … to abolish checks on the green card at frontiers between Member States cannot be regarded as authorizing the existence of national provisions or agreements between national insurers’ bureaux or their members which are incompatible with the provisions of the Treaty relating to competition, the right of establishment and the freedom to provide services.117

The Manghera Case is also illustrative in this respect, as the Court here again based its interpretation of Community law partly on Community soft law, leading to the conclusion that a certain national behaviour would have to be considered contrary to Community law by the referring judge.118 At issue in this case was the exclusive right to import and market manufactured tobacco. Inter alia pursuant to the obligation to abolish such exclusive rights contained in the Council’s Resolution of 21 April 1970 on national monopolies of a commercial character in manufactured tobacco, the Court concluded that these rights constitute discrimination prohibited by (ex) Article 37(1) of the Treaty.119 In the more recent Pastoors et Trans-Cap Case, the Court concluded that a difference in treatment was objectively justified, a conclusion reached partly on the basis of point 2(b) of the resolution at issue, which was adopted by the Council and the Representatives of the Governments of the Member States to improve the implementation of the social regulations in road transport. 120 This provision required Member States

117 Case 90/76 Van Ameyde [1977] 1091, paras 14–15. 118 Case 59/75 Manghera [1976] ECR 91, paras 11–12. 119 Cf also Case 43/72 Merkur [1973] ECR 1055,

from which it became clear that the Commission’s liability for damages may also depend on the interpretation given to a regulation on the basis of a Council resolution. 120 Case C–29/95 Pastoors et Trans-Cap [1997] ECR I–285.

Indirect Legal Effects for the Judiciary 395 to adopt effective means of prosecuting non-resident drivers committing breaches on the territory of a Member State and of recovering fines imposed on such drivers … .121

A second, potentially more far-reaching, implication of the use of Community soft law as an interpretation aid is that it may contribute to broadening the scope of the Treaty and the Community’s competences. An illustration of this is the Court’s judgment in the Thieffry Case. In this case the Court gave a wider (teleological) interpretation of the Treaty provisions concerning the freedom of establishment, inter alia on the basis of the general programme for the abolition of restrictions on freedom of establishment adopted on 18 December 1961. According to this programme, the Council proposed to eliminate not only overt, but also disguised discrimination. The Court stated that for the abolition of restrictions in this area, the programme ‘provides useful guidance for the implementation of the relevant provisions of the Treaty.’122 Partly as a consequence of this programme, the Court then concluded that demanding the national diploma prescribed by the legislation of the country of establishment constitutes a restriction incompatible with (ex) Article 52 EC, when the diploma obtained in the country of origin has been recognised as an equivalent qualification by the competent authority under the legislation of the country of establishment. This even in the absence of the mutual recognition directives to be adopted on the basis of (ex) Article 57 EC. This case clearly concerned an area falling within Community competence, or indeed, forming part of the heart of the Community law provisions. However, Community soft law can also contribute to bringing certain policy areas within the scope of Community law as such. That is to say, the Court sometimes uses Community soft law as an argument to support the conclusion that a certain matter falls within Community competence, when in fact this competence is disputed. Thereby, it contributes to establishing the existence of a Community competence. A case in point in this respect is the Gravier Case.123 The Court considered that the fact that the cost of higher art education was not borne by students of Belgian nationality, whereas foreign students had to bear part of that cost, had to be regarded as discrimination on the basis of nationality prohibited by (ex) Article 7 of the Treaty if it fell within the scope of the Treaty. The Court argued in this regard that even though educational

121 Para 5. 122 Case 71/76 Thieffry [1977] ECR 765, para 14. 123 Case 293/83 Gravier [1985] ECR 593. Cf also

Case 242/87 Commission v Council [1989] ECR 1425. Cf Streinz (1995) for a critical comment on these judgments, pp 1504–5.

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organisation and policy are not as such within the sphere of the Treaty, access to and participation in (vocational training) courses ‘are not unconnected with Community law.’124 With a view to establishing this connection, it referred not only to primary and secondary Community law provisions but also to a number of soft law acts. The Court considered that: The particular attention which the Community institutions have given to problems of access to vocational training and its improvement throughout the Community may be seen, moreover, in the ‘general guidelines’ which the Council laid down in 1971 for drawing up a Community programme on vocational training … , in the Resolution of the Council and of the ministers for education meeting within the Council of 13 December 1976 concerning measures to be taken to improve the preparation of young people for work and to facilitate their transition from education to working life … and the Council Resolution of 11 July 1983 concerning vocational training policies in the European Community in the 1980s … [para 22] The common vocational training policy referred to in [ex] Article 128 of the Treaty is thus gradually being established. [para 23] It follows from all the foregoing that the conditions of access to vocational training fall within the scope of the Treaty. [para 25]

With a view to next determining what criteria must be used in deciding whether courses in strip cartoon art constitute vocational training, the Court referred not only to Decision 63/266/EEC but also to the aforementioned ‘general guidelines’ of the Council. From these acts, the Court derived that any form of education which prepares for a qualification for a particular profession, trade or employment constitutes vocational training. Another clear illustration of this second implication of the use of soft law instruments as an interpretation aid is provided by Joined cases Germany, France, Netherlands, Denmark and UK v Commission.125 In these cases, the Court brought the migration policy of the Member States with regard to third States, to a certain extent at least, within the sphere of competence of the EC, making reference to various Council resolutions and action programmes expressing a link between national migration policies and Community social policy. 124 Case 293/83 Gravier [1985] ECR 593, para 19. 125 Joined cases 281, 283–85 and 287/85 Germany,

Commission [1987] ECR 3203, paras 17–18.

France, Netherlands, Denmark and UK v

Indirect Legal Effects for the Judiciary 397 Thus, the — indirect — legal effects that may be generated by taking Community soft law into account in the interpretation of Community hard law are that soft law in fact provides a standard in the consideration of whether Community or national behaviour is lawful and a standard for determining the scope of Community competences. As such, the fact that the Community and national courts take account of soft law can also affect the rights and duties of individuals. Yet, these effects do not go so far as to make soft law a standard that must be complied with as an end in itself.

9.7

CONCLUSIONS

In this chapter, it has been found that in respect of its own interpretative power the Court has never spoken in terms of a duty or an obligation to take account of Community soft law acts elucidating the (intended) scope and meaning of Community law. Rather, it can be concluded that what the Court has done is merely assign to certain Community soft law instruments explanatory interpretative value in the judicial implementation of Community law. That is to say, preparatory and steering soft law instruments in particular are taken into account by the Court as a voluntary interpretation aid, when they throw light on the — objective — meaning and scope of primary and secondary Community law. Furthermore, it has been found that the Court is willing to take account of soft law acts insofar as they can be understood as an indication of the — subjective — intention of the legislature. This reading of the Court’s case law is induced in particular by the fact that generally speaking the Court does not appear to be prepared to take account of unilateral interpretative acts, adopted either by Member States at the time of adoption of a legislative act or by the Commission at a later stage. Only where the act at issue is an act of the legislature or executive, constituting an act preparing or supplementing the legislative act, is the Court willing to take account of it as an indication of what the — objective or subjective — meaning and scope of the legislative act must be considered to be. Yet, although one can speak of a well-established practice in this regard, it can hardly be considered a consistent practice. It has further been found, firstly, that the Court refers to preparatory and steering soft law acts in order to confirm or support an interpretation already reached on the basis of binding Community law. The only (rather implicit) condition for such ‘confirmatory’ interpretation appears to be that the soft law act has been published. Secondly, in principle it seems possible that a certain interpretation of a legislative act might rely exclusively on the contents of a preparatory or steering soft law act. However, such ‘isolated’ interpretation will require a clear connection, in the form

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of a cross-reference, between the hard law and soft law provisions at issue, from which it can actually be inferred that the legislature intended the soft law act to supplement the hard law act and to serve as an interpretative device therefor. In respect of the interpretative power of national courts, it has become clear that the Court considers recommendations to constitute a mandatory interpretation aid for the national courts when confronted with the interpretation and application of Community and national law. That is to say, the Court has in fact established an obligation for the national courts to take recommendations into account, in particular with a view to the interpretation of national implementing measures and where the recommendations supplement binding Community provisions. As such, this may contribute to the effectiveness — in particular the uniform application — of Community law. Yet, even though the Court also has a constitutional role to fulfil, it does not seem justifiable to me that the Court should curtail the freedom of interpretation of national courts, when acting as Community judges, more than its own freedom of interpretation. That would imply a heavier burden on the national courts to take account of the Community legislature’s intended meaning and scope of Community law than the ECJ is willing to accept for itself, without even indicating a legal basis for this. On the one hand, this viewpoint pleads (for the time being at least) for a restrictive reading of the scope of the ‘Grimaldi obligation’ for the national courts.126 So, the Court has not, in my view, established a duty of consistent interpretation with recommendations and other soft law instruments. Stronger yet, such a conclusion cannot be reconciled with the rationale of consistent interpretation. Put simply, consistent interpretation means that the lower norm has to be interpreted in the light of and consistently with the higher norm. At the national level, it refers in particular to the interpretation of national law consistently with Community (hard) law that, because of its binding nature and primacy, has precedence over national law.127 Using the terminology of consistent interpretation in respect of Community soft law instruments creates in my opinion the — false — impression that there is a duty of consistent interpretation identical or similar to that for Community hard law, such as directives. That would amount to turning things upside down, by suggesting a duty to

126 Interpretative

acts of the Commission do not fall within this scope. As regards other soft law acts, the above remarks on confirmatory and isolated interpretation can be said to apply. 127 See Wissink (2001), p 121 ff for a detailed discussion on the relation between national law and directives, and in particular the question and controversies of precedence of both directives and directive-consistent interpretation over national law.

Indirect Legal Effects for the Judiciary 399 interpret national law in conformity with Community soft law rules that lack legally binding force and primacy over national law. This can not have been the intention of the Court nor would it be desirable from the viewpoint of legitimacy. On the other hand, the above viewpoint pleads for a broader reading of the Court’s case law concerning the role of Community soft law in its own interpretation of Community law than has in fact been established in this chapter. That is to say, the Court should consider itself to be under a duty similar to that which it imposed upon the national courts in the Grimaldi and Deutsche Shell Cases, and hence should consider at least recommendations to be a mandatory interpretation aid and not merely a voluntary interpretation aid. As has been seen from the various opinions discussed in this chapter, several Advocates-General have in fact defended the view that the Grimaldi obligation applies to the Community courts as well.128 Respect for the principles of division of powers, institutional balance and Community loyalty as these are interpreted today may also plead for the role of mandatory interpretation aid for soft law acts preparing and supplementing legislative acts, especially when these express the intention of the legislature. In this regard, one can also argue that although the Court has refrained from indicating a legal basis for the Grimaldi obligation, it does not seem difficult to identify such a legal basis in Articles 7 and 10 EC. These should be interpreted in the sense that the principles of the division of powers and of sincere cooperation compel the judiciary, to some extent at least, to take account of the intended meaning and scope of legislative acts. It shows respect for the role of the legislature in the legal system, and shows that the judiciary cannot free itself totally from this. Still other arguments plead in favour of the view that the Court has a duty to take (more) account of soft law acts. These have to do with changes in the organisation of the Community legal system and in the legislative policy of the Community. Thus, in recent years the Community legislature can be said to have become more legitimised in that a more important role has been assigned to the European Parliament. Furthermore, greater attention is now being given to the issue of the quality and quantity of legislation, and this is leading step by step to a more deliberate legislative policy. So, one can argue that the Court should take account of for instance a decision of the legislature to use soft law rather than hard law for reasons of subsidiarity and proportionality. Otherwise, it may act in such a way as to frustrate this policy. 128 Cf A-G Tesauro in the Kalanke Case and A-G Fennelly in the Tögel Case. They both refer to the judgment in the Grimaldi Case with a view to establishing the interpretative value of the recommendations in question for the Court itself.

10 Indirect Legal Effects for the Executive 10.1

INTRODUCTION

T

HE LAST TWO chapters have examined the indirect legal effects that Community soft law can have as a result of transposition and compliance at the legislative level, and interpretation at the judicial level. As such, then, they were about the legal effects that soft law has more generally. The issue to be considered in this chapter concerns the more individual indirect legal effects that Community soft law can have at the executive level. That is to say, what obligations does Community law impose on Community institutions and national authorities having to implement Community law in a concrete case; do they have to take account of any relevant Community soft law in that framework? Implementation here thus concerns in fact the application and enforcement of Community soft law, that is to say the administration of Community soft law acts in individual cases and the process of compelling observance of soft law acts in that framework.1 Obviously, this also touches upon the legal protection and in particular the rights and duties of third parties.2 The issue arises particularly at the Community executive level, as it is there that the question concerning the self-binding effect of Community soft law can be posed most clearly. Yet, the question of indirect legal effects could also arise at the national executive level. A first important question to be addressed in this chapter is thus what recognition there is of legal effects of Community soft law at the — Community and national — executive level, and upon what legal foundation(s) this is or can be based. Here general principles of law such as legitimate expectations and equality will come into play as possible grounds for such recognition. Secondly, what is the scope (limitations and implications) of these legal effects, in particular as regards the legal position and protection of third parties? Thirdly, how are these legal effects to be evaluated from the viewpoint of effectiveness, legitimacy and transparency? 1 Definitions of application 2 Cf Crones (1997), p 13.

and enforcement as given by Prechal (1995), pp 5–6.

402

Legal Issues of Community Soft Law

These questions will first be identified more closely (Section 10.2). Then I will discuss some approaches in national law to the issue of selfbinding effect of self-imposed rules and the notion of good administration in EC law as such. At this point I will also sketch the conflict that the recognition of self-binding effect may in fact create between the requirements of effectiveness and legitimacy (Section 10.3). This discussion will in itself offer a number of arguments pro and contra the recognition of self-binding effect of Community soft law, and will also provide a background for the subsequent examination of the indirect legal effects that have been recognised at the Community executive level. In this respect a distinction will be made between the application and enforcement of Community soft law in the area of staff cases (Section 10.4) and in other areas of Community law (Section 10.5). This distinction is made because initially the Court’s case law concerned in particular staff cases, but a (cautious) spill-over effect from this to other areas of law can now be discerned. Following on from that, I will examine the requirements that Community law imposes at the national executive level, and also in fact on national courts, as to taking account of Community soft law in the implementation of Community law (Section 10.6). The chapter will end with some conclusions, assessing the outcome of the foregoing examination in the light of the aim to enhance the legitimacy, effectiveness and transparency of Community action (Section 10.7).

10.2

QUESTIONS OF IMPLEMENTATION FOR THE EXECUTIVE

At the Community executive level, the question of application and enforcement of self-imposed rules is found firstly in the area of staff cases, regarding internal rules drawn up by the institutions. Suppose that an HIV positive individual applied for a job with the Commission, but was not hired because of this infection. Can he/she successfully contest this rejection by relying on Conclusions of the Council and the Ministers for Health, according to which employees who are HIV positive but who do not show any symptons of the disease should be considered fit for work? Especially when it has been the practice of the Commission to follow these conclusions, is it bound by them as a result of the principles of legitimate expectations and/or equality?3

Outside the area of staff cases, the question of self-binding effect relates in particular to whether the Commission is bound by decisional acts it has

3 This

example is derived from Case T–10/93 A v Commission [1994] ECR II–179, to be discussed in more detail in Subsection 10.4.1 below.

Indirect Legal Effects for the Executive 403 drawn up, ie acts that structure its implementing powers and indicate how it will apply for instance the competition law rules in individual cases. Suppose that undertaking A has decided not to notify an agreement to the Commission in view of the fact that it does not amount to the market share threshold contained in the Commission’s De Minimis Notice. Yet, upon a complaint of undertaking B, the Commission concludes that the agreement contravenes Article 81(1) EC and issues a negative decision, including a fine. In an action for annulment of the decision, would the argument of undertaking A be upheld, that the notice raised legitimate expectations that the agreement was lawful and that on this ground the Commission is bound by it?

The Commission may in fact express the view in decisional acts and also in individual decisions that it considers itself to be bound by such acts. An interesting example in this respect is Decision 1999/705/EC, in which the Commission stated that the de minimis rule concerning state aid has an absolute nature and that deviation from this rule would create legal uncertainty.4

Furthermore, in legal writing Commission administrators have observed that for the application of (competition law) rules drawn up by the Commission, it is in fact immaterial whether these have been laid down in legally binding instruments or not.5 This is not to say, however, that for instance guidelines create legally enforceable rights.6 The question of application and enforcement may also arise in respect of implementing powers shared by the Commission and the Member States. The clearest example of this is provided by the area of state aid. The guidelines, disciplines, codes etc. that the Commission adopts in this area are, to some extent at least, also addressed to the Member States, which are the authorities that provide state aid. Yet, it is clear that third parties — companies — are also affected by them, as either beneficiaries or competitors, when a Member State does or does not take account of the rules laid down in them. Can the competitor of a company receiving aid argue successfully that a Member State is required to test a national measure against

4 Concerning

state aids of the Netherlands to 633 service stations, OJ 1999, L 280/87, point 68. See also Case 404/97 Commission v Portugal [2002] ECR I–4897, para 15. 5 Rawlinson (1993), p 59. 6 Eg guidelines for the application of the competition law rules to the telecommunications sector.

404

Legal Issues of Community Soft Law

a Commission state aid act,7 such as the Community Guidelines on national regional aids, before deciding that it actually constitutes aid and/or should have been notified to the Commission?

The actual application and enforcement of Community law is in many instances and areas of law left to the Member States. So, at the national level the question is not so much whether there is self-binding effect to self-imposed rules, but rather whether the national administration is on some legal ground obliged to take account of Community soft law acts in its actual implementation of Community law in a particular case. Directive 2002/21/EC of the EP and of the Council on a common regulatory framework for electronic communications networks and services (Framework Directive) offers an illustration of this issue, in particular its Articles 14 and 15. This directive provides that ‘national regulatory authorities shall, when assessing whether two or more undertakings are in a joint dominant position in a market, act in accordance with Community law and take into the utmost account the guidelines on market analysis and the assessment of significant market power published by the Commission pursuant to Article 15.’ (Article 14(2)) Furthermore, it states that ‘National regulatory authorities shall, taking the utmost account of the recommendation and the guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles of competition law.’ (Article 15(3) — emphasis added)

Obviously, in the circumstances of this example it is the Commission that will have to draw up the guidelines and recommendation, but the national authorities have to implement the directive, and are called upon to take account of these acts in doing so. Does this mean, then, that they are legally obliged to do this?

10.3

10.3.1

THE RECOGNITION OF SELF-BINDING EFFECT OF SELF-IMPOSED RULES

Approaches in National Law

The various national legal systems represented in the EC take differing views of the phenomenon of decisional acts, usually referred to as policy or administrative rules, and their possible self-binding effect. As such,

7 See

also Section 6.6 and in particular Subsection 6.6.4 on the scope of the legally binding force for third parties of state aid frameworks that have been accepted by the Member States and must be considered binding as a result of their underlying agreement.

Indirect Legal Effects for the Executive 405 they also cast differing lights on — the desirability or necessity of — the recognition of such an effect of Community administrative rules. In German law, the self-binding effect of administrative rules, in the sense of norm-concretising rules, is well-established and has traditionally been founded upon the principle of equality. The principle of legitimate expectations is of only minor importance in this respect, although more recent case law does attribute some role to it.8 A question that still remains is the extent to which contra legem application of these principles is possible, ie whether administrative rules can be relied on when they are found to be unlawful.9 The view has also been presented, in particular by Ossenbühl, that such rules should be considered ‘originäres Administrativrecht’; in other words, that administrative action, by its very nature, confers an inherent power on the administration to establish external binding policy rules.10 Such a view makes superfluous the use of principles of good administration, such as equality and legitimate expectations, as a means to establish the self-binding effect of administrative rules, as these rules then have inherent legally binding force. In the Dutch legal system, the commitment to general principles of good administration is traditionally strong, and often stronger than in other Member States.11 It is therefore not surprising that in the Netherlands the self-binding effect of policy rules was established through the operation of such principles,12 in particular the principle of legitimate expectations. Van Kreveld has argued that it is primarily the principle of consistency that places an obligation on the administration to comply with the rules it has imposed on itself.13 Later, the use and effect of policy rules was regulated in the General Administrative Law Act. This evoked the question as to what precisely is the legal foundation of the legal effect of policy rules. One view is that policy rules have legal effect because the Act confers legal consequences upon them. Another is that the legislature cannot specify that policy rules have legal effect by statutory decree, and that they remain preparatory acts concerning future decisions, which can acquire legal effect only on the basis of principles of good administration.14 In the UK, there is no clear position in law regarding administrative rules, and in fact there is a reluctance to accept such rules at all. Yet, it appears that some attribution of self-binding effect to administrative rules has come about through the notion of reasonableness, related to the 8 See Ossenbühl (1981), Bok (1994) and Crones (1997). 9 See Crones (1997), p 26. 10 See Bok (1994) on this, p 268. 11 Cf van Gerven (1983), p 4. 12 Cf van Kreveld (1983), pp 186–91. 13 Van Kreveld (1983), pp 188–89. 14 See Bok (1994) on these different views, pp 267–72.

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Legal Issues of Community Soft Law

principle of legitimate expectations.15 Moreover, when administrative rules have a legal basis in an Act of Parliament and are thus intra vires, they are even considered to be legally binding.16 This somewhat dual approach is connected in particular with the fact that the Act of Parliament is still seen as the hard core of the rule of law, which is not regarded as primarily a structure made up of principles of natural justice; legislation is not considered subordinate to these principles, but rather the other way around.17 In French administrative law also, the question is more how far it is permissible at all to limit administrative discretion in advance, as the system is directed more towards ensuring that each individual case is assessed on its particular merits. Recognition of self-binding effect gives rise to the fear that the administration will evade this duty.18 The principle of legitimate expectations as a possible legal basis for self-binding effect is said to have remained completely out of the picture, while the equal treatment principle plays only a minor role in this respect.19 However, self-binding effect of French directives has been established in that they have been attributed a kind of normative scope.20 Yet, at the same time considerable emphasis is placed on the inherent power to deviate from them when individual facts and circumstances call for this, or when the general interest demands such derogation.21 So, it can be seen that some legal systems attach more weight to upholding the administration’s discretion and freedom to assess each individual case on its own facts and merits than to committing the administration to rules it has drawn up itself with a view to the exercise of this discretion. Although these systems are thus more hesitant than others to recognise self-binding effect of self-imposed rules, it appears that they do at least recognise some self-binding effect. Furthermore, the national systems discussed above share the view that the self-binding effect is not absolute, in that there is always a power of the administration to deviate from the policy rules. As regards the legal foundations for the recognition of the self-binding effect thus established in the above Member States, three approaches or constructions come to the fore. The first and most prominent of these is that such recognition is established through general principles of good administration, even though the scope and intensity thereof may vary from one Member State to another. Secondly, administrative rules may be 15 Cf Bröring (1994), pp 278–79. 16 Bröring (1994), p 277. 17 Bröring (1994), p 276. 18 Crones (1997), p 49. 19 Crones (1997), pp 30–37. 20 Crones (1997), p 35. 21 Roozendaal (1994).

Baldwin and Houghton (1986), p 252 ff.

Indirect Legal Effects for the Executive 407 considered to be rules with legal effect simply because legislation or Acts of Parliament confer legal consequences upon them. Thirdly, the most farreaching approach is that the very nature of administrative action entails that an inherent power to establish binding administrative rules is conferred upon the administration. Again, however, none of these approaches entails an absolute legal effect in the sense of the binding force of legislative acts, as deviation is always considered possible. Where the recognition of self-binding effect comes about on the basis of general principles of law, it is in fact of consequence whether this occurs through the principle of equal treatment or the principle of legitimate expectations. As various authors have observed, the principle of equal treatment enables the establishment of a general-objective (quasinormative) self-binding effect, as the administration has to treat all persons that are in the same or a comparable situation in the same way.22 Furthermore, it is considered that this can work not only in favour of individuals but also against them.23 The self-binding effect established on the basis of the principle of legitimate expectations is of a more individual-subjective nature, as it then depends on the case at issue and the degree of need for individual legal protection whether the selfbinding effect can be acknowledged or not.24

10.3.2

The Notion or Principles of Good Administration in EC Law

A number of particular features of the Community legal order which have become evident at various instances in this book, already plead for increased control of the way in which the Community administration behaves and hence also for the recognition of a self-binding effect of its decisional acts. Firstly, the Treaty does not contain any catalogue of ground rules against which this behaviour must be tested. Secondly, there is no clear distinction or division between the executive and legislative functions in the EC. Thirdly, the limitation to framework legislation increases the need for implementing rules, which also adds to the practical need for guidance of discretion. Finally, the increasing use of interpretative and decisional rules has been taken as an indication that the EC is becoming a mature administration or legal order.25 This can also be said to entail the recognition of their self-binding effect. The fact that the EC Treaty itself does not establish as such the notion or principles of good administration, or provide for a catalogue against 22 Cf Ossenbühl (1981), Crones (1997), van 23 Van Kreveld (1983), p 187. 24 Crones (1997), p 52. Ossenbühl (1981), p 25 Cf also Subsection 5.6.3.

Kreveld (1983). 859. Cf also van Kreveld (1983), p 187.

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Legal Issues of Community Soft Law

which to test the administration’s behaviour, does not mean that such a notion is not actually recognised by the Community legal order.26 It has in fact been developed and concretised by the Court, in its case law. Ragnemalm, a judge at the ECJ, has thus held that When dealing with non-judicial proceedings of an administrative nature, it is preferable to say that public authorities are bound to comply with, what is best described as a general principle of good administration. [T]he Court has enunciated a fairly complete set of general principles of Community law in order to secure good administration within the Community institutions. Others must judge whether these general principles have been consistently enforced in order to protect the rights of individuals.27

This is clearly a reflection of the idea that the exercise of implementing powers is not unlimited, and that there must be a system of guarantees to ensure this. This forms a fundamental part of every system based upon the rule of law.28 In various cases, infringement of the principle of good, sound or proper administration has been alleged and/or the Community courts have established such infringement or used this term.29 That is not to say, however, that it has been recognised as a principle with a specific legal meaning and content of its own. It rather represents a general notion comprising different rules or other particular standards for assessing administrative behaviour and practice; the Court refers to various principles for reviewing whether there is good or sound administration or not.30 In fact, this is also expressed by the above quotation of Ragnemalm. The Technische Universität München Case 31 confirms this view, as the ECJ considered that where the Community institutions have such a power of appraisal [involving complex technical evaluations-LS], respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned opinion. Only

26 See also Subsections 3.2 and 3.6 on the broader notion of good governance. 27 Ragnemalm (2000), at pp 54–56. Cf also Wouters (2000), p 97, who pleads

for a stronger application of the principles of good administration by the Court. 28 Konijnenbelt, as quoted by Hirsch Ballin (2000), p 305. Cf also Chapter 3. 29 Cf Case T–126/97 Sonasa v Commission [1999] ECR II–2793, paras 49–55. 30 Van Gerven (1983), p 4. Cf also Nehl (1999), pp 27 and 36–37, who observes that the principle of good administration therefore only exists as a phrase. 31 Case C–269/90 Technische Universität München [1991] ECR I–5469.

Indirect Legal Effects for the Executive 409 in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present.

The New Europe Consulting Case also expresses this view, as breach of the principle of sound administration was alleged, and in particular of the right to be heard, the duty to act with due care and the duty to give weight to the interests concerned. In responding to this, the CFI held that ‘the principle of sound administration requires the Commission to balance the interests in question’.32 The CFI also referred to the Oliveira v Commission Case, in which it stated that the Commission’s obligation to apply due diligence in the decision-making process and to adopt its decision on the basis of all information which might have a bearing on the result derives in particular from the principles of sound administration, legality and equal treatment.33

A variety of principles, of both a procedural and a substantive nature, can thus be classed under the heading of ‘good administration’ and considered as a ground for review in this regard. The procedural principles include inter alia access to information and/or files and the right to be heard. The substantive principles guiding administrative discretion are in particular the principles of proportionality, equality and legal certainty.34 In legal writing it has been observed that the notion of good administration purports to reflect a meaningful legal or constitutional concept which will play its part in the constitutional debate on the future development of the EC and its administrative system.35 Over the last few years, the notion of good administration does indeed appear to have become more deeply rooted in the Community legal order, both in political debate and in written law. Thus, the right of access to documents has now been established in secondary legislation.36 Furthermore, Article 41 of the Charter of the Constitutional Rights of the EU provides for a constitutional right of proper administration, which entails that the citizen is entitled to a lawful, foreseeable and reviewable fulfilment of public affairs.37 The principle of good administration has also attracted attention in the context of the White Paper on European Governance, which emphasises that governance entails not only differentiation of the legal instruments,

32 Case T–231/97 New Europe Consulting [1999] ECR II–2403, para 39. 33 Case T–73/95 Oliveira v Commission [1997] ECR II–381, para 32. Cf also an earlier staff case,

C–255/90P Burban v EP [1992] ECR I–2253 and the case law mentioned in para 7 of this case. 34 See in this sense, Nehl (1999), p 5, footnote 13. 35 Nehl (1999), p 37. 36 Regulation 1049/2001, OJ 2001, L 145/43, already discussed in Subsection 3.6.3.1. 37 See Hirsch Ballin (2000) on this.

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but also the fulfilment of substantive requirements; good governance must be ensured. This guarantee is established inter alia through the operation of general principles of law and fundamental rights. Since it is clear that neither the Treaty nor secondary legislation regulates in any general way the use of policy rules and their possible legal effects, it is also clear that they cannot provide for the recognition of selfbinding effect. So, what this chapter will consider in particular is whether the notion of good administration thus recognised in the Community legal order also entails a duty of the administration to adhere to selfimposed rules when taking an individual decision, and if so, on the basis of what principles of law this is actually the case. The growing importance and firmer establishment of the notion of good administration could in itself be put forward as an argument for the recognition of such a selfbinding effect of decisional Commission acts, at least of those which have been drawn up with a view to reinforcing legal certainty and equality. Finally, consideration must also be given to whether there might in fact be ground for the recognition of self-binding effect in the very nature of administrative action.

10.3.3

Effectiveness and Legitimacy: Conflicting Principles in This Respect?

In more general terms, the question arises concerning the extent to which the recognition of self-binding effect of administrative rules can be reconciled with both of the requirements of effectiveness and legitimacy. That is to say, if the emphasis is placed on effectiveness of Community action, and in particular flexibility thereof, then it can be argued that the administration must be free to decide each individual case as it sees fit. There would then be little scope for the recognition of self-binding effect of administrative rules. If conversely the interest of the individual is placed at the forefront, then legal certainty and foreseeability of Community administrative action in fact plead for self-binding effect of administrative rules, as one will then know beforehand one’s rights and duties.38 So, there seems to be at least an apparent conflict between effectiveness, flexibility and protection of the general Community interest on the one hand, pleading against self-binding effect, and legitimacy, legal certainty and protection of the individual interest on the other, pleading for self-binding effect. The scope (to be) given to in particular the principles of equal treatment and legitimate expectations will thus partly depend on the relative weight that is attached to legal certainty and effectiveness.

38 Cf

Crones (1997), p 13.

Indirect Legal Effects for the Executive 411 10.4

APPLICATION AND ENFORCEMENT OF SOFT LAW BY THE COMMUNITY EXECUTIVE IN THE AREA OF STAFF CASES

The question of self-binding effect of self-imposed rules arose at quite an early stage in the context of staff cases. As this area of law is characterised by broad discretion, it is not really surprising that the institutions make considerable use of internal guidelines and the like.39 Although these acts are as such outside the scope of this book, an understanding of the Court’s case law in this area is important with a view to understanding the way in which decisional acts with external effect, adopted in other areas of law, are dealt with, and the possible spill-over effect from the former to the latter.

10.4.1

On the Basis of the Equality Principle: The Louwage Formula

Initially, the Court’s approach can be said to have been hesitant and somewhat ambiguous towards the recognition of self-binding effect of self-imposed rules. Thus, in the Giuffrida v Council Case the question was put to the Court whether the Commission was obliged to comply with a staff memorandum it had adopted concerning the appointment of officials. The parties argued in particular about whether the memorandum was in fact a decision. The Court stated that: Whether or not the memorandum in question was at that time in the nature of a Decision, the fact remains that, in the interests of a proper administration and in so far as an internal competition may result in transfer or promotion into a higher category or into the language service, the appointing authority should have regarded itself as under a moral obligation to comply with it … .40 (para 17 — emphasis added)

Although the Court here acknowledges the interests of proper administration, it clearly considers this to be a principle entailing not a legal obligation, but ‘only’ a moral one. In the earlier Brandau v Council Case,41 a staff member attempted to rely on an executive decision taken by the Council on the basis of its staff regulations, invoking the principle of equality. The Court did not accept this, reasoning that although the Council is allowed to lay down in advance

39 Crones (1997), p 64. 40 Case 105/75 Giuffrida v Council [1976] ECR 1395. 41 Case 46/71 Brandau v Council [1972] ECR 373.

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and in general terms the objective criteria which it intends to observe in applying the Staff regulations, these can only be regarded as a statement of minimum requirements without prejudice to the exercise in each individual case of the discretion conferred on the administration by the Staff regulations themselves. It continued that this discretion is essential to enable the administration to take account of the manifold unforeseeable facts peculiar to each case, which is not incompatible with the general principle of equal treatment for officials. According to the Court, this principle does not entail that the administration must merely carry out a mechanical application of predetermined rules and criteria, as such an interpretation would conflict with the need for evaluation of the often complicated factual considerations peculiar to each individual case.42 Evidently, the Court in this case places the emphasis on the discretion of the administration and the need to assess each case on its own merits. As such, the Court seems here to follow more or less the French and British approaches.43 Shortly after that, however, the Court appears to have reversed its approach, in the sense of no longer taking as its point of departure the discretion of the administration, but instead the self-binding effect of an internal act on the basis of the equal treatment principle. That is what it did in the Louwage v Commission Case,44 which concerned an internal Commission directive on daily subsistence allowances of officials. The Court held that: Although an internal Directive has not the character of a rule of law which the administration is always bound to observe, it nevertheless sets forth a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which led it to do so, since otherwise the principle of equal treatment would be infringed. [para 12]45

The ECJ and CFI have confirmed and reiterated this ‘Louwage formula’ in many other cases. The ECJ did so for instance in the Luxemburg v Court of Auditors Case,46 observing also that where an exception to the general

42 Paras 10–14. 43 Cf Crones (1997) in this sense, pp 68–70. 44 Case 148/73 Louwage v Commission [1974]

ECR 81, para 12 in particular. Cf also Case 188/73 Grassi v Council [1974] ECR 1099, para 38, where the Court held that though the appointing authority has wide discretion in comparing the candidates’ merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits contained in the notice of vacancy; Case 70/74 Commission v Council [1975] ECR 795, paras 20–22 and below Case 81/72 Commission v Council [1973] ECR 575, para 9. 45 See also Schwarze (1976), pp 65–70 and Mortelmans (1979) for a discussion of this case. 46 Joined cases 129/82 and 274/82 Luxemburg v Court of Auditors [1984] ECR 4127. Cf in the same sense Case 25/83 Buick [1984] ECR 1773, para 15. The Louwage formula can also be found in Joined cases 80 to 83/81 and 182 to 185/82 Adam v Commission [1984] ECR 3411,

Indirect Legal Effects for the Executive 413 rule governing appointments is introduced in the form of a general decision adopted within an institution, the non-discrimination principle as contained in Article 5(3) of the Staff regulations would be deprived of any legal significance if … the appointing authority still had the same discretion as is conferred upon it by Article 31 of the Staff regulations. [para 19]

In the Maurissen v Court of Auditors Case,47 the wording used by the CFI is even more forceful than the Louwage formula, as it considered that according to consistent case law an internal instruction for implementing the Staff Regulations is binding on the institution unless the latter chooses to disregard it by a reasoned and detailed decision, which is not the case here. (para 42 — emphasis added)

Interestingly, it appears that on the basis of the equal treatment principle an institution can also be considered bound by rules which have been adopted by another institution and which it has declared it will apply. This is seen in the A v Commission Case.48 This case concerned the lawfulness of the Commission’s refusal to recruit A. on grounds of physical unfitness. The applicant claimed inter alia that the Commission had acted contrary to the Conclusions of the Council and the Ministers for Health of the Member States, meeting within the Council, on 18 December 1988 concerning AIDS. According to those Conclusions, employees who are HIV positive but who do not show any symptons of the disease should be looked on and treated as normal employees, fit for work.

The applicant held that he had not gone beyond the stage of seropositivity, whereas the Commission claimed that its practice corresponded exactly para 22, in which the Court speaks of ‘rules of practice’; Case 190/82 Blomefield v Commission [1983] ECR 3981, para 20; Case 343/82 Michael v Commission [1983] ECR 4023, para 14; Joined cases 181/86 to 184/86 Sergio del Plato & Others v Commission [1987] ECR 4991, para 10, which further makes clear that even though the procedures have not been directly challenged the officials and other staff concerned may invoke their illegality in support of an action against the individual Decisions taken on the basis of the procedures. 47 Case T–23/91 Maurissen v Court of Auditors [1992] ECR II–2377. Cf also Case T–2/90 Ferreira de Freitas v Commission [1991] ECR II–103, para 61. 48 Case T–10/93 A v Commission [1994] ECR II–179. See also the first example given in Section 10.2 above.

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to the position set out in the Conclusions. The CFI concluded that an examination must indeed be made of whether the Commission’s finding complies with the Conclusions, arguing that: It is clear from the Commission’s written submissions and from its arguments at the hearing that it regards itself as bound by those Conclusions. In those circumstances, the Court takes the view that, while they cannot be treated as provisions of the Staff Regulations or of Community legislation, those Conclusions must nonetheless be treated as rules of practice which the administration imposes on itself and from which it may not depart without specifying the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed … .49

From later case law the same conclusion can be drawn, although there the CFI seems not to bother about even indicating the ground for the recognition of such self-binding effect. This relates in particular to the Campogrande v Commission Case,50 concerning a complaint of a female Commission employee about sexual harassment by a male colleague, in respect of which the Commission did not take the action required by Council resolution 90/C/157/02 and Commission recommendation 92/131/EEC concerning the protection of the dignity of women and men at work, including a code of practice. The CFI merely observes that the Commission, as an employer, followed the principles contained in those acts and with a view to this adopted a declaration of principle incorporating the essential parts thereof, which was published in the Informations administratives of the Commission of 29 February 1996. The CFI then takes this declaration as a basis for examining whether the Commission dealt with Campogrande’s complaint in an adequate manner.51 So, the Louwage formula is also applicable to rules which have been adopted by another institution, but which have in one way or another been (voluntarily) taken up by another institution as a guideline for its own behaviour. In general, the Court can be said to have now adopted a more consistent approach, and one that comes close to the approach found in the German legal system;52 the equal treatment principle requires that institutions be bound by self-imposed rules, unless there are grounds that justify deviation therefrom. Thus, in that sense there is still discretion. 49 Para 60, in which the Court also refers to Case T–2/90 Ferreira de Freitas v Commission [1991] ECR II–103. 50 Case T–136/98 Campogrande v Commission [2000] II–1225. 51 Cf also Case T–549/93 D v Commission [1995] ECR II–43, which also concerned sexual harassment, here of three staff members by D, their superior. Contrary to what was argued by D, the CFI found that the three elements contained in the annex of the above recommendation for the establishment of sexual harassment were fulfilled. See its paras 76 and 90 ff. 52 Cf Crones (1997), pp 68–70.

Indirect Legal Effects for the Executive 415 What remains somewhat unclear is the rigour of the statement of reasons that is required in this respect. Whereas the ECJ speaks merely of ‘reasons’, the CFI seems more demanding, as already illustrated by the above case and also by the Latham v Commission Case, where it speaks of serious grounds.53 However, I am of the opinion that this is only an apparent difference: both the ECJ and the CFI require a statement of reasons for the deviation that fulfils the usual standards of rigour.54

10.4.2

On the Basis of the Principles of Patere Legem Quam Ipse Fecisti and Legitimate Expectations

As already follows from the discussion in Subsection 3.6.3.4, legal certainty forms a standard of good administration that in fact encompasses several different principles, including the protection of legitimate expectations. Prechal and Heukels also derive from the Louwage Case and Case 81/72 that when a Community institution has issued general rules for the exercise of its discretionary powers, the principle of legal certainty then requires that these be taken into account in deciding individual cases, at least as regards staff cases.55 Mortelmans further derives from the judgment in the Louwage Case the applicability of the principle of patere legem quam ipse fecisti. This principle means that the government is not allowed to deviate by way of an individual decision from a general rule which it has enacted itself.56 This principle may also be found, more or less implicitly, in other cases. In Case 70/74 Commission v Council,57 the Commission thus alleged violation of the legitimate confidence which the officials concerned could have in the correct application by the Council of its decision of 20 and 21 March 1972 implementing Article 65 of the Staff regulations. The Court did not establish in so many words that this principle had been infringed, but held that by this decision the Council intended to bind itself for a definite period of three years to observe fixed criteria for the calculation of salaries. In Case 81/72 Commission v Council,58 the ECJ had already recognised this calculation system as constituting a legal means for the exercise of the discretion which Article 65 confers on the Council and as committing it for the period laid down. It concluded thereupon that the Commission was right in maintaining that ‘the Council cannot, to escape 53 Case T–63/89 Latham v Commission [1991] ECR 54 See Subsection 3.6.3.2 on this requirement. 55 Prechal and Heukels (1986), pp 295–96. 56 Mortelmans (1979), pp 24–25. 57 Case 70/74 Commission v Council [1975] ECR

II–19, para 26.

795. Cf also Case 188/73 Grassi v Council [1974] ECR 1099, mentioned above in note 44. 58 Case 81/72 Commission v Council [1973] ECR 575.

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this obligation, plead this discretion, the exercise of which it has itself determined.’ An examination therefore had to be made of whether, and if so to what extent, the rule laid down by the Council’s decision had been observed. The Court did not indicate the principle on which it based its conclusion as to the existence of self-binding effect. However, the summary of the judgment made explicit reference to the principle of patere legem quam ipse fecisti. The purpose of the action in Case 81/72 was actually different, in the sense that it sought the annulment of articles of a Council regulation adjusting the salaries and pensions of EC officials, for infringement of Article 65 of the Staff regulations and the Council decision of 21 March 1972. The Council held that whilst in adopting the disputed regulation it felt bound by the system adopted on 21 March 1972, the Court should decide of its own motion ‘whether this system constitutes a rule of law.’59 As the above discussion of Case 70/74 has already indicated, the Court concluded that the Council was bound by the decision it had drawn up. It reached this conclusion on the basis of the protection of legitimate expectations, as it held that Taking account of the particular employer-staff relationship which forms the background to the implementation of Article 65 of the staff Regulations, and the aspects of consultation which its application involved, the rule of protection of the confidence that the staff could have that the authorities would respect undertakings of this nature, implies that the Decision of 12 March 1972 binds the Council in its future action. Whilst this rule is primarily applicable to individual decisions, the possibility cannot by any means be excluded that it should relate, when appropriate, to the exercise of more general powers. Furthermore, the adjustment each year of remunerations provided for in Article 65 only constitutes an implementing measure of an administrative rather than a legislative nature, and is within the framework of the Council’s application of that provision. (para 10 — emphasis added)60

From this it is clear that the principle of legitimate expectations can also provide a legal foundation for the recognition of self-binding effect of Community internal staff rules, and not only when an individual decision is at issue but also a general implementing regulation.61 In establishing this recognition, however, particularly important elements were seen to

59 Ibid, para 6. 60 See also Subsection

8.4.2 as to the self-binding effect of self-imposed rules for the legislature that may be inferred from this judgment. 61 However, in EC law the distinction between legislative and implementing acts is rather diffuse, which also pleads for more transparency of the Community instruments.

Indirect Legal Effects for the Executive 417 be the employer-staff relationship and the fact that the Commission had been involved in the process of drawing up the rules for the implementation of the staff Regulations. So, it seems that the specific circumstances of the case contributed to the invocation of legitimate expectations being upheld.

10.4.3

On the Basis of Essential Procedural Requirements

The Geeraerd v Commission Case62 concerned an internal decision introduced by the Commission of its own motion which, according to the applicant, had not been observed. The Commission departed from the procedure provided for by that decision, in order to take account of the exceptional situation which had arisen as a result of the reorganisation of the career brackets for language staff. The Court considered that under no circumstances could the fact that the Commission had departed from that procedure be regarded as an infringement of an essential procedural requirement within the meaning of (ex) Article 173 EC. Those considerations, it said, apply especially to mere administrative practices which the Commission ordinarily observed when promoting officials.63 From judgments rendered shortly afterwards, however, it does ensue that the Community institutions must follow self-imposed procedures or will otherwise be said to have infringed essential procedural requirements. In the Ragusa v Commission Case,64 the applicant claimed that the promotion procedure was not in conformity with the procedure laid down for that purpose by a memorandum of the Director General. According to the Commission, such a procedure, not established by the Staff Regulations, does not have any legal validity, so failure to observe it cannot be regarded as an infringement of an essential procedural requirement. The Court did not agree with this, holding that when by way of an internal decision the appointing authority voluntarily institutes a compulsory consultative procedure not prescribed by the Staff regulations, it is obliged to abide by such a procedure, which cannot be regarded as lacking any legal validity.65 This can be seen even more clearly from the Turner v Commission Case,66 in which the Court held that since the person was not consulted as required by the Guide to Staff Reports, the procedure which led to the

62 Case 782/79 Geeraerd v Commission [1980] ECR 3651. 63 See its para 13. 64 Case 282/81 Ragusa v Commission [1983] ECR 1245. 65 See its para 18. 66 Case 263/83 Turner v Commission [1985] ECR 893.

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contested staff report was vitiated by the infringement of an essential procedural requirement and on that ground the contested staff report had to be annulled.67 The strict approach which the Court seems to follow in this regard is in fact quite logical, since it is a lot easier for it to test and establish the infringement of essential procedural requirements than to perform a full review.

10.4.4

Limitations and Implications of Self-Binding Effect

It has thus been found that the self-binding effect of self-imposed rules is actually recognised in Community staff cases, in particular on the basis of the principle of equal treatment, but also on the basis of the principles of patere legem quam ipse fecisti and legitimate expectations and as a result of essential procedural requirements. According to Crones, it is clear that the Court has established in the area of staff law a self-binding effect of self-imposed rules that has its roots in German administrative law;68 not an absolute legally binding force, but as a result of the equal treatment principle, which entails that the scope of this binding force is ‘less’ than that of acts having inherent or incidental legally binding force. That is to say, deviation from the self-imposed internal rules must always be considered possible. The question is then what reasons can actually be invoked to justify such deviation. A first reason is a very clear one, namely that the self-binding effect established on the basis of one of the said principles or requirements cannot be relied on if the application of the self-imposed rules amounts to a contra-legem application. So, where these rules or their application lead to incompatibility with primary or secondary Community law, there can be no self-binding effect of these rules. In the Blomefield v Commission Case, the Court thus held that internal directives adopted by the Community institutions may not, in any circumstances, legally establish rules which derogate from the staff Regulations.69 67 Para 21 in particular. See for a later confirmation of this view, Case T–33/91 Williams v Court of Auditors [1992] ECR II–2499, para 66, in which the CFI considered that the contested staff report had to be annulled because it had not been drawn up in conformity with the procedure laid down in the Guide to Staff Reports, which according to the CFI has ‘the legal force of an internal directive’. 68 Crones (1997), p 85. 69 Case 190/82 Blomefield v Commission [1983] ECR 3981, para 21. The same formula can also be found in for instance Case 343/82 Michael v Commission [1983] ECR 4023. See in general in this respect, Case 1252/79 Acciaierie e Ferriere Lucchini v Commission ECR [1980] 3753. This also applies more generally, eg in the case of oral commitments or statements; cf Case 162/84

Indirect Legal Effects for the Executive 419 Secondly, where the internal rules still leave wide discretion to the institution and hence cannot be said to be sufficiently clear and unequivocal, the equal treatment principle cannot be relied upon to claim selfbinding effect.70 Furthermore, the adopting institution can also argue that situations are not comparable and therefore the application of the equality principle cannot lead to the conclusion of binding effect. Illustrative of this is the Michael v Commission Case,71 in which the applicant claimed that the Commission’s Decision of 6 June 1973 was binding on the Commission and that its provisions were of mandatory legal effect. In particular, these were to be applied automatically and objectively, since the decision was intended to ensure that uniform rules concerning grading are applied to newly recruited officials and that these enjoy identical conditions of recruitment and career prospects. The Commission maintained that this decision does not create for the Commission officials any right upon which they might usefully rely, and that it retained an absolute discretion in this respect. From the opinion of A-G Reischl in this case, it follows that a limitation of the self-binding effect of such acts or, put the other way around, a condition for the recognition thereof, lies in the clarity of the act concerned and the scope of the discretion left to the institution. In particular, he held that: In the light of the general principles of equal treatment, legal certainty and the protection of legitimate expectations, there is however some doubt whether in its standard practice the administration may depart from published internal administrative directives which, as was the case in Louwage, are clear and unequivocal and leave no room for any other interpretation. In this case, however, that question may remain open, since, in relation to the assessment of professional experience, the text of the decision is by no means clear and unequivocal and in any case allows the administration a margin of discretion.72

So, the A-G concluded that there could be no self-binding effect. The Court, however, came to a different finding. It emphasised that in March 1981 the Commission had brought its decision officially to the notice of all its staff members, in the form of individual notifications. As such, the Court considered it to be an internal directive, which led it to confirm the Vlachou v Court of Auditors [1986] ECR 481, para 6, which states that promises which do not take account of procedures as provided by the Staff regulations cannot give rise to legitimate expectations; Case T–30/90 Zoder v EP [1991] ECR II–207, para 25; Case 188/82 Thyssen v Commission [1983] ECR 3721, para 11. See further also Section 6.3. 70 Crones (1997), pp 72–73. 71 Case 343/82 Michael v Commission 72 Ibid, at p 4048.

[1983] ECR 4023.

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Louwage formula. Since the Commission had acknowledged before the Court that it intended to abide strictly by the provisions of the decision and to accord the benefit of the provisions to all officials satisfying the conditions set out therein, the Court concluded that the applicant could lawfully submit an application for regrading based solely on the provisions of the decision and that he was entitled to rely on any breach of those provisions. At the same time, the Court stressed that under no circumstances can such internal Community measures legally establish rules which derogate from the provisions of the Staff regulations.73 Even if in the past in similar cases decisions have been taken on the basis of unlawful internal directives or like instruments, the equality principle can not be relied upon to claim self-binding effect. In the Zoder v EP Case, the CFI stated this very clearly, holding that the applicant would not be able to rely on such a practice contrary to the provisions of the Staff Regulations, since no person may plead in his own cause an unlawful act committed in favour of another.74

In particular where the Community institutions enjoy wide discretion, it is clear that the Court performs only a limited judicial review.75 It is enough that the administration gives sufficient reasons as to why it is deviating from the internal directive; the Court then refrains from performing a full review, looking into the substance. Only when one might speak of a manifest error of assessment, or when the institution has been led by considerations that are not objective in the circumstances of the case, may the Court interfere.76

10.5

10.5.1

APPLICATION AND ENFORCEMENT OF SOFT LAW BY THE COMMUNITY EXECUTIVE IN OTHER AREAS OF LAW

Preliminary Observations

Outside the area of staff cases, the question of self-binding effect at the Community executive level arises in those areas where the EC, in particular the Commission, has been given the task and power to apply Community law in individual cases, that is particularly in the areas of competition law, state aid and subsidies. Some authors have rather 73 Paras 11–16. 74 Case T–30/90

Zoder v EP [1991] ECR II–207. Cf also Case 190/82 Blomefield v Commission [1983] ECR 3981, para 21. 75 This is also a clear difference from interpretative Commission acts, as discussed in Subsection 9.4.1.1. 76 Case 190/82 Blomefield v Commission [1983] ECR 3981, para 27 and Crones (1997), p 74.

Indirect Legal Effects for the Executive 421 directly extrapolated and applied the Court’s reasoning in staff cases to these areas as well.77 Others have been more careful in this respect, and have doubted whether this is possible at all.78 It will be established in this section that quite recently a certain spill-over effect could actually be discerned in this respect from the staff case law to these other areas of law. In the first — competition law — cases in which the question of the possible self-binding effect of Commission notices arose, the Court avoided addressing this question. The opinions of the AdvocatesGeneral in those cases did, however, shed some light on it. Thus, in the Cadillon and Béguelin Cases, A-G Dutheillet de Lamothe denied all legal effect of the De Minimis Notice, by considering that it states itself that it is only in the nature of guidance and lays down ‘no legislative rules which bind the national court or even the Commission or on which the parties could rely.’79 A few years later, however, A-G Warner in his opinion in the Miller Case did not exclude the possibility of a self-binding effect of the De Minimis Notice. In particular, he held that: In a case where an undertaking had, in bona fide reliance on the terms of the Notice, proceeded on the assumption that an agreement to which it was a party was outside the prohibition in Article 85(1), it may be that a sort of estoppel would arise precluding the Commission from subsequently fining that undertaking on the ground that the agreement was in fact within the prohibition.80

So, on the basis of the principle of legitimate expectations or reasonableness, he considered that such a self-binding effect could possibly exist. Yet again, the Court did not address the issue. In the following subsections, I will examine more closely the approaches of the ECJ and CFI and assess the actual position; in particular, I will look at the principles on the basis of which the self-binding effect is or can be established. It is important to observe here that the relevance of this effect may depend on among other things the area of law at issue. In particular, the impact of decisional rules on third parties may be different in the respective areas of state aid and competition law. The starting point for this examination can be taken to be that the Commission must at least be considered allowed to apply decisional

77 Cf Adam (1999) in respect of state aid, p 120. 78 For instance Mortelmans (1979), pp 25–26. 79 Case 1/71 Cadillon [1971] ECR 351, at p 361

p 968. 80 Case 19/77 Miller [1978] ECR 131, at p 158.

and Case 22/71 Béguelin [1971] ECR 949, at

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guidelines and similar acts. The CFI made this clear in the Freistaat Sachsen Case, by stating that: Although the rules of the Community framework for State aid in certain sectors of industry — being appropriate measures proposed by the Commission to the Member States on the basis of Article 93(1) of the Treaty (now Article 88(1) EC) — are entirely devoid of binding force and bind Member States only if the latter have consented to them, there is nothing to prevent the Commission from examining the aid which must be notified to it in the light of those rules when exercising the wide discretion which it enjoys for the purposes of applying Article 92 of the Treaty (now, after amendment, Article 87 EC) and Article 93 of the Treaty.81

10.5.2

On the Basis of the Equality Principle

The equality principle plays an important role in EC law — in many areas of substantive Community law — and is considered a fundamental right and general principle of Community law; furthermore, this role is still growing.82 Also as regards the question at issue here, its role seems to have been increasing, although not so long ago the prevailing view was rather to the contrary.83 As evidence of this growing role, one can first of all point to the Thyssen v Commission Case, which concerned the imposition of a fine for exceeding the steel production quota under the ECSC Treaty.84 Although this case did not as such concern a soft law act, Thyssen argued that the Commission had developed an administrative practice of authorising undertakings in its position to carry over the unused portion of a quota, and that therefore the Commission could not penalise it for exceeding its quota, ‘without contravening the principle that the administration is bound by its own acts. [para 5]’. The Court rejected this argument by holding that the Commission had demonstrated that the undertakings which were allowed to carry over the unused portion of their quota had not yet, unlike Thyssen, exhausted their quota and therefore fulfilled the conditions laid down by Commission decision for exercising that right. Since the two situations were not comparable, the Court deemed that no principle of Community law could be relied upon to support the claim that they should be accorded identical treatment.85 The Court can 81 Joined

cases T–132/96 and T–143/96 Freistaat Sachsen & Others v Commission [1999] ECR II–3663, para 208. Cf also the quotation below in Subsection 10.5.2 of the Vlaams Gewest v Commission Case. 82 Cf also Article 13 EC. 83 Crones (1997), p 140. 84 Case 188/82 Thyssen v Commission [1983] ECR 3721. 85 Para 9.

Indirect Legal Effects for the Executive 423 thus be said to have implicitly acknowledged the possibility that the administration may be bound by its own practices or acts on the basis of the principle of equality, but in this case the conditions for this recognition were not fulfilled, ie the comparability of the situations at issue.86 Also elucidating is how the Court has dealt with cases in which parties relied expressly on the equality principle in order to contest (the level of) fines imposed on them, but in which Commission communications or notices were again not at issue. In particular, these parties argued that competing companies had not been fined, despite being in a comparable situation.87 It appears that, generally speaking, the Court interpreted the equality principle in these cases in the sense that it does not stand in the way of deviation from a regular or continuous fines policy.88 An illustrative example of this is the Musique Diffusion Française v Commission Case,89 which concerned a complaint that the Commission had raised the level of fines considerably, in derogation from its consistent practice. The claimant considered this contrary to the equality principle, since in similar and simultaneous cases lower fines had been imposed. The Court did not agree with this view, holding that the Commission’s task of supervision in this area includes not only the duty to investigate and punish individual infringements, but also the duty to pursue a general policy designed to apply in competition matters the Treaty principles and to guide the conduct of undertakings in the light of those principles. In its view this also entails that the Commission is not stopped from raising the level of fines if that is necessary to ensure the implementation of Community competition rules. On the contrary, the proper application of those rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. The same approach can also be discerned in case law of the CFI, as demonstrated by for instance the judgment in the ICI v Commission Case,90 concerning a matter similar to that of the aforementioned case. As such, this case law illustrates the ‘conflict’ that may arise between maintaining (general) effectiveness of Community law on the one hand, and (individual) equal treatment, legal certainty and consistency on the other. Whenever the general interest so requires, in this case the application of Community competition law and policy, it appears that the individual interest of the company affected by the fine must yield.91 That is to

86 Cf also Subsection 3.6.2.1. 87 Crones (1997), pp 88–89 and the case law mentioned by him in footnotes 394–96. 88 Crones (1997), p 90. 89 Joined cases 100 to 103/80 Musique Diffusion Française v Commission [1983] ECR 1825. 90 Case T–13/89 ICI v Commission [1992] ECR II–1021. 91 Cf also Mortelmans (1979), p 26 and Case T–380/94 AIUFASS and AKT v Commission [1996]

ECR II–2169, paras 54–55 for another illustration of this conflict.

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say, the principles of equal treatment and legal certainty cannot stand in the way of a general adaptation of the competition policy rules. Yet, as Advocate-General Vesterdorf held in the ICI v Commission Case, a ground for correcting the fines imposed by the Commission may exist when in an individual case the Commission deviates without reason from a relatively consistent practice as to the level of fines, and as such then infringes the equal treatment principle. The case law discussed hitherto also shows the emphasis that the Court places on the wide discretion which the Commission does indeed enjoy in the areas concerned. This is one complicating factor for the recognition of self-binding effect of self-imposed rules. Following on from this, a second complicating factor for this recognition is the limited judicial review of the Community courts in this respect. The following cases, involving various state aid guidelines, illustrate this further. In the Italy v Commission Case, 92 the ECJ thus pointed first to the wide discretion the Commission enjoys as regards the application of (ex) Article 92(3) EC, the exercise of which involves assessments of an economic and social nature that must be made within a Community context. It then held in respect of the disputed negative Commission decision that the Commission had correctly pointed out that the aid granted manifestly did not meet the criteria laid down in the Community guidelines for aid to the textile and clothing industry or in the guidelines on rescue aid, both communicated to the Member States by letters. Therefore it could not be regarded as promoting the economic development of the areas and activities concerned, and as such the Commission had not exceeded the limits of its discretion, according to the Court. The same reasoning and conclusion concerning (ex) Article 92(3) EC and the aforementioned textile guidelines was already contained in the Court’s judgment in the France v Commission Case.93 Even more pointedly, Advocate-General Jacobs expressed in his opinion in this case the wide scope of Commission discretion and the limited judicial review in this respect, by holding that: Both the drawing up of guidelines for the grant of aid to particular sectors of industry, and the assessment of individual aids in the light of such guidelines must be seen as involving an exercise of discretion with which the Court will not interfere unless the exercise is tainted by a manifest error or exceeds the limits of the discretion. [point 71]

92 Case C–303/88 Italy v Commission [1991] ECR I–1433, paras 34–39. 93 Case 301/87 France v Commission [1990] ECR I–307. Cf also Case

Commission [1996] ECR I–723, para 11.

C–56/93 Belgium v

Indirect Legal Effects for the Executive 425 Similarly, the CFI held in the AUIFASS Case that: Judicial review of a decision taken in this context must be confined to verifying whether the rules governing procedure and the statement of reasons were complied with, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error in assessing those facts or any misuse of powers ?94

Nonetheless, it is clear that in these cases the Courts have examined whether the Commission’s decision on the national aid schemes complies with the criteria that it has laid down itself in guidelines; apparently, they deem that the Commission is in principle bound by these acts, without however indicating any legal foundation for this. So, the foregoing still leaves unanswered the question as to whether the approach developed in the context of staff cases, in particular the Louwage formula, applies to the area of economic law as well. In this respect, it can be argued that at least to a certain extent there has been a spill-over effect from the staff case law to other areas of law. Firstly, various opinions of Advocates-General point in this direction. Secondly, it appears that the CFI has begun to accept the application thereof to the area of competition law. A first interesting and earlier example is provided by the Consorzio Cooperative d’Abruzzo Case,95 in which the Commission held that a decision it had taken was illegal, even non-existent, because inconsistent with internal rules of the EOFGL, established in the working document of the Directorate-General Agriculture of the Commission. Hence, it was of the opinion that it had the power and the duty to withdraw that decision at any time and replace it. In its view, the addressee of the decision, the Consorzio d’Abruzzo, was aware from the outset that the decision was incorrect and unlawful, also because the Commission had sent a telex message to it saying this. According to the Commission the internal rules had binding force and left no discretion as to the level of assistance, whereas the claimant denied their binding force. In dealing with this question, Advocate-General Mischo referred to the Louwage formula as being consistent case law of the Court and stated that this case law could also be applied to the matter at issue. In his view, this then entails that if the Commission had wanted to award assistance at another level than that flowing from the proper application of the selfimposed internal rules, it should have indicated good grounds for doing so in order to avoid the reproach of benefitting or prejudicing the Consorzio in relation to others entitled to assistance of the EOFGL. Just as

94 Case

T–380/94 AUIFASS and AKT v Commission [1996] ECR II–2169, para 56. See also below Subsection 10.5.4 on this case. 95 Case 15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005.

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the Consorzio would have been able to rely on the internal rules if the Commission had awarded it a lower amount than prescribed by those rules, the Commission should be able to rely on them in the opposite situation, not in order to avoid the consequences of its own mistake but to prevent the excessive burden on the EOFGL and to ensure the equal treatment of all those entitled to assistance of the Fund. Thereupon, the A-G concluded that non-application of the internal rules, in particular of the calculation method prescribed therein, can indeed lead to illegality of the individual decision taken. Since the Commission had not given any special reasons for this deviation from the self-imposed rules, with a view to in particular ensuring the equal treatment of those concerned, the A-G concluded that the Commission was right in considering the decision illegal for exceeding its discretion.96 The ECJ did not agree with the view of the Advocate-General. In particular, it emphasised the fact that the internal rules for establishing the maximum contribution available from the Fund had not been published and that hence, apart from the responsible Commission officials, no one was in a position to ascertain by reading the individual decision whether or not those rules had been infringed. So, in its view one could not speak of manifest irregularities.97 Another example is provided by the opinion of A-G Tesauro in the The Netherlands v Council Case.98 He held that the question whether it is possible for interested parties to rely on a failure to comply with Decision 93/731/EC on public access to Council documents takes on quite a different complexion once it is acknowledged that the act in question was adopted in the exercise of the power of self-regulation vested in every institution. The Court has already made it clear … that that possibility should be allowed whenever the internal provision is intended also to protect individuals. This will be the case, in particular, where a particular measure intends to lay down the rules for the exercise of an activity involving contact with third parties. More generally, there is settled case-law to the effect that whenever rules of conduct are laid down, the institutions may not subsequently depart from them, without giving reasons for doing so, without infringement of the principle of equal treatment. On those bases, therefore, it is quite possible for interested parties to require the Council to comply with the rules which it has imposed upon itself for the purpose of examining applications for

96 Ibid, in particular p 1015. 97 The Court considers the issue

more in the light of legal certainty and legitimate expectations; the decision of 31 October 1984 withdrawing in fact the decision of 7 April 1982 is not contrary to those principles. Yet, Crones (1997), pp 100–1 derives from this judgment that the Court’s approach in the staff cases can also be applied to ‘external’ executive areas of law, but that there are still no cases in which the Court has actually established this. He is of the opinion that this can partly be explained by the scientifically complex facts. 98 Case C–58/94 The Netherlands v Council [1996] ECR I–2169.

Indirect Legal Effects for the Executive 427 access to documents: the fact that those rules may be relied upon, however, does not mean in any way that they are the basis for the citizen’s right of information. (point 20 — emphasis added)

The A-G took this point of view making reference to inter alia the Louwage Case.99 The Court itself did not address this issue. Also highly interesting is the opinion of Advocate-General Jacobs in the fairly recent Austria v Commission Case,100 in which both parties referred to the Guide to procedures in state aid cases, published in a book by the Commission in 1995. It contains a collection of the basic texts on state aid, including communications and notices, which show how the Community policy has developed in this area and which have not necessarily been published in the Official Journal. The A-G first emphasised the wide discretion of the Commission in the area at issue and then considered the legal status of the Guide. Of interest here is in particular his observation that: Member States and other interested parties may however rely on the principles of equal treatment and the protection of legitimate expectations. One of the guide’s objectives is to describe the current state of the Commission’s practice. It was published in order to further transparency and to ‘codify’ the current state of the law. Even if the guide does not have the character of rules of law which the Commission is always bound to observe, it nevertheless sets forth rules of conduct indicating the practice to be followed. Therefore, as in the case of any other internal directive, the Commission may not depart from the rules presented in the guide without giving reasons, since otherwise the principle of equal treatment would be infringed [reference to the Louwage Case – LS]. The same follows from the principle of legitimate expectations. It is well established that the Commission may not depart without an appropriate warning from a settled administrative practice [reference to the Ferriere san Carlo Case – LS]. The guide constitutes conclusive evidence for the existence of such a settled practice (emphasis added).

Again, the ECJ itself did not address the issue. A first illustration in the case law of the CFI of the spill-over effect from the Louwage formula to other areas of law is provided by the Hüls v Commission Case.101 Referring to the Louwage Case and Case 81/72, the CFI thus concluded that when the Commission imposes procedural

99 And also Joined cases 181/86 to 184/86 Sergio del Plato & Others v Commission [1987] ECR 4991, para 10 and Case T–63/89 Latham v Commission [1991] ECR II–19, para 25. 100 Case C–99/98 Austria v Commission [2001] ECR I–1101. 101 Case T–9/89 Hüls v Commission [1992] ECR II–499.

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rules on itself, in this case a procedure for providing access to the file in competition cases contained in the Twelfth Report on Competition Policy, it ‘may not depart from rules which it has thus imposed on itself’. Given its reference to the two staff cases, the CFI apparently came to this conclusion on the basis of the principle of equal treatment. Yet, as seen in Subsection 10.3.3, in staff cases concerning self-imposed procedural requirements the ECJ has resolved the matter by establishing infringement of essential procedural requirements. In the Vlaams Gewest v Commission Case,102 the CFI did not refer to the Louwage case law but considered that: The adoption of [such] guidelines by the Commission is an instance of the exercise of its discretion and requires only a self-imposed limitation of that power when considering the aids to which the guidelines apply, in accordance with the principle of equal treatment. By assessing specific aid in the light of such guidelines, previously adopted by it, the Commission cannot be considered to exceed the limits of its discretion or to waive that discretion. On the one hand, it retains the power to repeal or amend any guidelines if the circumstances so require. On the other, the Aviation Guidelines concern a defined sector and are based on the desire to follow a policy established by it. (para 89 — emphasis added)

To summarise, one can conclude that a variety of developments point in the direction that at least in certain cases the equal treatment principle can provide a legal basis for the recognition of self-binding effect of selfimposed rules, but that the precise scope of this possibility is not yet very clear.

10.5.3

On the Basis of the Principle of Legitimate Expectations

The principle of legitimate expectations aims at inter alia protecting any individual who is in a situation in which it appears that the administration’s conduct has led him to entertain reasonable expectations.103

In the context at issue here, does this principle entail for instance that the Commission must be considered to be prohibited from imposing fines when companies have been led to believe that they will be acting in conformity with Community law if they act in conformity with the Commission’s notices? 102 Case 103 Case

T–214/95 Vlaams Gewest v Commission [1998] II–717. 289/81 Mavridis v Parliament [1983] ECR 1731, para 21.

Indirect Legal Effects for the Executive 429 In the Miller Case, discussed above in Subsection 10.5.1, the Court avoided addressing this issue, but in the earlier so-called ‘Sugar Cases’ it did actually throw some light on this.104 These cases concerned the Commission’s imposition of fines on a number of companies for infringement of (ex) Article 85 EC. The Court decided that because a Commission notice had suggested that the behaviour of the companies would be lawful in the light of this provision, the infringement could not be taken into account in the determination of the level of the fines. Although it is difficult to infer from the judgment on what grounds precisely the Court based this conclusion — legitimate expectations or excusable error of law105 — the self-binding effect established in this case can be taken to be based primarily on the principle of legitimate expectations as a principle of good administration.106 Although it is thus clear that the principle of legitimate expectations as a basis for the self-binding effect of Commission decisional acts is at least of some relevance in the area of competition law, this relevance must be seen in the proper perspective.107 Firstly, the nature of the procedure of (now) Article 81 entails that there is little cause to invoke the principle of legitimate expectations with a view to legal protection.108 That is to say, companies themselves decide whether or not to notify an agreement to the Commission. In case of doubt, it is recommended that they do, and as such they have an immediate influence on the procedure.109 What will be at issue in particular in the subsequent dialogue between the Commission and the companies concerned is the assessment of the facts in the light of the interpretation that has to be given to Community law. Within the framework of this substantive review of the lawfulness of the notified agreement, account will quite naturally be taken of the interpretation that the Commission has given to Community law in notices and the like, but the question of raised expectations does not play a role in this context. That is to say, the principle of legitimate expectations cannot alter a 104 Joined

cases 40 to 48, 50, 54 to 56, 111, 113 to 114/73 Coöperatieve Vereniging ‘Suiker Unie’ UA v Commission (Sugar Cases) [1975] ECR 1663, paras 555–56.

105 Cf Kapteyn (1985), p 81. 106 Cf in this sense the early

observations of van Gerven (1973), p 179; Mortelmans (1979), p 24 and Senden and Hancher (2000), pp 100–1. 107 The following observations have already been presented in Senden and Hancher (2000), pp 100–4. 108 At least, as this procedure still exists today; it will be substantially changed as from 1 May 2004, when a new, decentralised procedure will apply. See the adoption of 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. 109 This will fundamentally change under the new Regulation, as there will be a shift from enforcement at the Community level through notification to the Commission, to enforcement at the national level through reliance on the direct applicability of Article 81 before the national courts and competition authorities. See on this also Craig and de Búrca 2002, p 1085 and below Section 10.6.

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finding of unlawfulness of the agreement. As the above Sugar Cases show, the scope of the principle of legitimate expectations is in this respect merely confined to the sanction to be imposed; if a Commission notice has raised a legitimate expectation as to the lawfulness of a certain agreement, then this influences the level of the fine to be imposed. Secondly, the limited relevance of the principle of legitimate expectations in the framework of competition law is also connected with the rather general nature of the decisional rules in this area, which do in fact leave the Commission considerable discretion as to the assessment of the individual case. So, in particular where such rules are not formulated in an absolute way, their non-application can hardly be considered contrary to this principle. A clear example of this is provided by the Langnese-Iglo v Commission Case, concerning the de minimis threshold contained in the Commission Notice.110 In this case, the CFI concluded that: It must be borne in mind that that notice is intended only to define those agreements which, in the Commission’s view, do not have an appreciable effect on competition or trade between Member States. The Court considers that it cannot however be inferred with certainty that a network of exclusive purchasing agreements is automatically liable to prevent, restrict or distort competition appreciably merely because the ceilings laid down in it are exceeded. Moreover, it is apparent from the actual wording of paragraph 3 of that notice that it is entirely possible, in the present case, that agreements concluded between undertakings which exceed the ceilings indicated affect trade between Member States or competition only to an insignificant extent and consequently are not caught by Article 85(1) of the Treaty. [para 98]

So, the Commission has to make use of the discretion that the notice actually leaves to it and may not apply the thresholds as if they were absolute. Yet, where administrative rules are formulated in a more absolute way, and especially when they contain a time limit for their application, one can argue that the Commission is bound to them until it decides to change them. In the area of state aid, the relevance of the principle of legitimate expectations from the viewpoint of legal protection of companies is considerably greater.111 This is necessarily the case owing to the very fact that companies do not play a role in and have little influence on the state aid procedure, which is dominated by the Commission and the Member States themselves. Furthermore, decisional state aid rules are becoming 110 Case

T–7/93 Langnese-Iglo v Commission [1995] ECR II-1533; cf also Case T–9/93 Schöller v Commission [1995] ECR II–1611 and Joined cases T–374/94, T–375/94, T–384/94 and T–388/94 European Night Services & Others v Commission [1998] ECR II–3141, paras 102–103. 111 Cf also the above quotation of A-G Jacobs in the Austria v Commission Case and his emphasis on the principle of legitimate expectations.

Indirect Legal Effects for the Executive 431 increasingly detailed and often impose concrete obligations on the Member States. In that sense they are also of a more absolute nature.112 It has also been seen that such rules are binding not only upon the Commission but also upon the Member States, if they have agreed to these rules.113 As such, they may raise legitimate expectations for third parties that both the Commission and the Member States will act in conformity therewith. In this respect, one can also point to the fact that although the ECJ requires a diligent entrepreneur and aid recipient to ascertain whether the procedure prescribed by the Treaty has been followed,114 it has not excluded the possibility that in exceptional circumstances he may have legitimate expectations that the aid was lawful and that as a result his refusal to pay back the aid may be lawful as well.115

10.5.4

On the Basis of a Duty of Consistency?

It appears that in a number of cases the Community courts have taken the self-binding effect of decisional Commission acts rather as a fact, without actually indicating any legal foundation for this. This has occurred in particular in the area of state aid, in cases where the applicants have sought the annulment of Commission decisions, alleging among other things that these infringed self-imposed guidelines and similar acts. In those cases, the Courts have examined in particular whether the Commission’s decisions were adopted in conformity with the conditions laid down in such acts. A first illustration of this is the AIUFASS Case,116 in which the CFI simply held that since the undertaking for which the proposed aid is intended is part of the textile sector, the Court must also check that the defendant complied with the guidelines which the defendant itself laid down in the 1971 communication and in the 1977 letter in so far as they are not contrary to the Treaty. [para 57]

In the Ducros Case,117 the CFI verified whether the requirements imposed by the Guidelines on aid to undertakings in difficulty had been 112 For instance, in rather sharp contrast to the De Minimis Notice relating to Article 81 agreements, the De Minimis Notice on state aid was of a rather absolute nature. This absolute nature was also a central issue in Case 382/99 The Netherlands v Commission [2002] ECR I–5163, to be discussed below in Subsection 10.5.4. 113 See Section 6.6 on this. 114 See Case C–24/95 Alcan [1997] ECR I–1591. 115 Case 5/89 Commission v Germany (BUG/Alutechnik) [1990] ECR I–3437. 116 Case T–380/94 AIUFASS and AKT v Commission [1996] ECR II–2169. 117 Case T–149/95 Ducros v Commission [1997] ECR II–2031, paras 62–70.

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observed there. It concluded that this was indeed the case and therefore dismissed the application for annulment. The CFI adopted a similar approach in the Joined cases Krupp Thyssen v Commission, in which the Commission guidelines for the calculation of fines were at stake. 118 Again, the CFI considered the Commission to be bound by these guidelines, without clearly indicating the legal foundation for this self-binding effect. It concluded that at least in one respect the Commission had infringed the guidelines.119 Likewise, in the Joined cases EPAC v Commission120 the CFI simply considered whether the Commission had acted in conformity with its Communication to the Member States concerning the application to public companies in the industry sector of Articles 92 and 93 of the Treaty and with the Community guidelines on state aid for rescuing and restructuring firms in difficulties. Also interesting is the judgment of the CFI in Joined cases Tate & Lyle & Others v Commission,121 in which the applicants disputed the calculation of fines for infringement of (ex) Article 85 EC, claiming firstly that the contested decision infringed the Guidelines on the method of setting fines. The question at issue was in particular whether the infringement was serious within the meaning of the guidelines or not. The applicants deemed that although a horizontal restriction was at issue, it could still be considered a minor infringement. The Commission emphasised that the guidelines are designed to give indications as to the approach followed by the Commission in determining the amount of fines, but that they do not provide an automatic method for calculating the fine which will be imposed in a particular case. [para 94]

In its judgment, the CFI confirmed the view held in the aforementioned Musique Diffusion Française v Commission Case122 and assessed further whether there was a serious infringement in the sense of the guidelines or not, while maintaining at the same time that the Commission does indeed have a margin of discretion when fixing the amount of each fine and is not obliged to apply a mathematical formula for that purpose.123 Secondly, the applicants alleged misapplication by the Commission of its Notice on the non-impostion or reduction of fines in cartel cases. 118 Joined cases T–45/98 and T–47/98 Krupp Thyssen v Commission [2001] ECR II–3757, paras 185–281 in particular. 119 See para 248. 120 Joined cases T–204/97 and T–270/97 EPAC v Commission [2000] ECR II–2267, paras 97–117. 121 Joined cases T–202/98, T–204/98 and T–207/98 Tate & Lyle & Others v Commission [2001] ECR II–2035. 122 See Subsections 10.5.2. 123 See in particular paras 102–11.

Indirect Legal Effects for the Executive 433 The CFI examined whether that was indeed the case, by considering whether the cooperation of Tate & Lyle could be described as ‘continuous and complete’ within the meaning of the notice. It concluded that the Commission erroneously characterised the cooperation of Tate & Lyle as not being continuous and complete within the meaning of point B(d) of the notice and that, in consequence, the extent of that cooperation has not been correctly assessed in the contested decision.

This finding led the CFI to lower the fine imposed upon Tate & Lyle (a 60 per cent instead of a 50 per cent reduction).124 Some cases decided fairly recently by the ECJ show a similar approach, also demonstrating that the binding nature of such acts for the Commission may be taken somewhat as a fact. The issue is then whether the Commission complied with (the conditions laid down in) them or not. In the Belgium v Commission Case125 the Court thus emphasised the wide discretion the Commission enjoys under (ex) Article 92(3), while maintaining at the same time that in exercising its discretion, the Commission has traditionally adopted a favourable attitude towards aid which is intended to promote the creation of jobs. This is evident from its 1995 Guidelines on aid to employment and 1997 Communication on the monitoring of state aid and reduction of labour costs. Thereupon the Court concluded that the aid scheme in question did not in any way guarantee attainment of the objective of creating jobs and that the Commission could not be said to have exceeded the bounds of its discretion. The more recent The Netherlands v Commission Case126 concerned an application for partial annulment of the Commission Decision on the state aid implemented by the Netherlands for 633 Dutch service stations located near the German border, in particular in so far as it states that the aid granted to certain categories of service stations is incompatible with the common market and requires the recovery of aid already granted. The Dutch government pleaded among other things infringement by the Commission of its De Minimis Notice for state aid. The ECJ did not consider on what legal ground the Commission must be considered at all obliged to take a decision that is in conformity with the De Minimis Notice, but rather whether its decision violated this notice or not. Consequently, the case concentrated more on the question whether or not the Dutch government had complied with the condition of noncumulation of aid, as contained in the notice. The Court concluded that this was not the case and dismissed the application. 124 In particular paras 162–66. 125 Case C–75/97 Belgium v Commission [1999] ECR I–3671, paras 54–59. 126 Case C–382/99 The Netherlands v Commission [2002] ECR I–5163.

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The question remains how this case law must be understood and in particular how it relates to the case law discussed in the preceding two subsections; apparently, in some cases the establishment of a legal foundation for self-binding effect is considered necessary — and to be found in the principles of equal treatment, patere legem quam ipse fecisti and/or legitimate expectations, whereas in others it is not. Given the area in which the latter cases have occurred, one could argue that this has to do with the greater need for legal protection in the area of state aid, as set out above in Subsection 10.5.3. In general, however, one may also wonder whether this case law can be taken as an indication of a new development, namely that the question of what the precise legal foundation is for the recognition of self-binding effect is becoming less relevant. That is to say, arguably, the fact that the administration has to act in a consistent and non-arbitrary way entails that it must apply the rules it has established for exercising its implementing powers. The very adoption of decisional acts then means that the administration binds itself to the rules laid down therein.127 The establishment of a legal foundation for this self-binding effect by way of general principles of law would thus be superfluous.

10.5.5

Limitations and Implications of Self-Binding Effect

Many of the observations made above in Subsection 10.4.4 in respect of staff cases also go for the limitations and scope of the self-binding effect of decisional acts in other areas of law. In addition, it can be emphasised here again that there can be no self-binding effect of self-imposed rules if these derogate from binding, primary and secondary Community law and hence are unlawful.128 In this regard, the principle of legality actually has priority over the principles of equal treatment and legitimate expectations. This is consistent case law, which as regards aid codes has been stated for instance in the Cases Deufil v Commission,129 Cook v Commission and Spain v Commission.130 So, contra-legem application of those principles is excluded. Furthermore, as has also emerged in the preceding subsections, the scope of self-binding effect must be seen in the proper perspective; the

127 See in this sense as regards Dutch administrative rules, van Kreveld (1983), pp 188–89. 128 See also Section 6.3. 129 Case 310/85 Deufil v Commission [1987] ECR 901. The Court’s judgment in this case also

makes clear that if certain types or forms of state aid have not been mentioned in an aid code or like instrument, this does not mean that legitimate expectations have been raised in the sense that these aids are now automatically allowed. 130 Case C–198/91 Cook v Commission [1993] ECR I–2487 and Case C–169/95 Spain v Commission [1997] ECR I–135. Cf also Case T–336/94 Efisol v Commission [1996] ECR II–1343, para 36.

Indirect Legal Effects for the Executive 435 wide discretion of the Commission and the limited review of the exercise thereof by the Community courts account here also for the fact that deviation from decisional acts is possible, as long as in doing so the Commission does not exceed the limits of its discretion. In line with this, the Commission is also allowed to change its decisional acts, for instance when it deems this necessary in the light of changed market or economic circumstances. Now that the Commission repeatedly adapts its decisional acts, it apparently considers itself bound to them until it makes such adaptation.131 Apart from that, the self-binding effect has also been seen to depend on the nature of the rules at issue; the more absolute and unequivocal their formulation, the more scope there is for self-binding effect.132 As such, the finding of self-binding effect is less far-reaching than a finding of ‘inherent’ or ‘incidental’ legally binding force.133 A further implication of self-binding effect is that such a finding may be not only in favour of those concerned, but also to their detriment. The Consorzio Cooperative d’Abruzzo Case, discussed above in Subsection 10.5.2, provides an early illustration of this. Another case from which this can be inferred is BFM and EFIM v Commission, concerning the grant of aid by the Italian government to BFM, which the Commission held to be incompatible with the internal market and therefore unlawful.134 The CFI held in this case that as regards aid to undertakings in difficulty the applicants could and should reasonably have been aware of the requirement that aid measures should be linked to a restructuring plan. The Commission stressed in its Eighth Report on Competition Policy of 1978 (paragraph 228) that it required notification in advance of a restructuring plan in an individual significant case. That rule was confirmed and made more explicit in the Community guidelines on State aid for rescuing and restructuring firms in difficulty … , which both expressly require that a viable restructuring/recovery programme be submitted with all relevant detail to the Commission … and that the company fully implement the restructuring plan accepted by the Commission …

The foregoing does not affect the possibility of parties to plead in legal proceedings that guidelines, notices etc are not in conformity with the Treaty provisions, for instance as regards the quantitative approach in the De Minimis Notice.135 In Joined cases Tate & Lyle & Others v Commission, 131 Cf also Jestaedt and Häsemeyer (1995). 132 Cf also Case C–156/98 Germany v Commission [2000] ECR I–6857. 133 See Section 6.2 on these notions. 134 Joined cases T–126/96 and T–127/96 BFM and EFIM v Commission [1998] ECR II–3437. 135 See the opinion of A-G Léger in Case C–382/99, point 45, observing that the Dutch gov-

ernment had failed to make use of this possibility. The de minimis rule for state aid has now been laid down in a regulation.

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such a plea was in fact introduced. In particular, it was argued that the Guidelines on the method of setting fines are contrary to Article 15(2) of Regulation 17. The CFI looked into this complaint, but concluded that this was not the case.136

10.6 APPLICATION AND ENFORCEMENT OF SOFT LAW BY THE NATIONAL EXECUTIVE

10.6.1

Different Situations

The final issue to be considered is what requirements Community law possibly imposes as regards the application and enforcement of Community soft law by the national executive. The national executive can be said to be those national authorities that are to apply and concretise Community law in individual cases.137 In doing this, are such authorities required to take account of soft law acts drawn up by the Community institutions? Focussing here on the areas of both state aid and competition law,138 the requirements that may be imposed on the national regulatory and/or competition authorities to take account of decisional acts of the Commission are in particular at stake. In these areas there is a shared competence of the Commission and the Member States to apply and enforce the applicable law, yet the issue presents itself differently in the two areas. In Section 6.6 a distinction was in fact already made between Commission state aid frameworks, guidelines etc that have been accepted by the Member States and those that remain (unilateral) Commission acts. With respect to the former, I concluded in that section that they establish a rather general binding force, which can be relied upon by third parties as well. Logically, the acceptance of such an act by the Member State also entails that the national implementing authority, when dealing with individual cases, must take a decision that is in conformity therewith. This compliance can be enforced in court. The focus here will be on those Commission soft law acts which have been adopted in the areas of state aid and competition law and to which the Member States have not as such agreed. In Subsection 10.5.3, certain institutional differences between these two areas have already been presented. These will be further highlighted here, in so far as they

136 Paras 108–11. 137 Cf also Crones (1997), p 17. 138 Not only because of the feasibility

of this study, but also because the issue can be seen most clearly and urgently in these areas of law.

Indirect Legal Effects for the Executive 437 are relevant for the legal position of the implementing authorities and, as a result, also for that of third parties.139 In the area of state aid, the Commission and the Member States are the key figures in the application and enforcement of the state aid rules; the duty to notify aid to the Commission is not incumbent on the aid recipient but on the Member State, and Commission decisions are directed to the Member States and not to the aid recipients or complainants. Non-compliance with the notification duty entails that the aid has been awarded illegally and has to be re-claimed and paid back, even if after notification the aid turns out to be in conformity with Article 87 EC. So, when new aid has not been notified, the legal position of third parties — aid recipients but also competing companies — is affected, even though they can hardly exercise direct influence on this themselves. This is reinforced by the fact that Article 87 EC lacks direct effect. The role of the national court is limited to assessing whether a certain measure can be characterised as aid or not. If it deems this to be the case, the measure will have to be notified to the Commission, which will then assess whether it is in conformity with Community law or not. Against this background, one can first ask whether the Member State, ie the national authority or department deciding on aid measures, is in doing so under some duty to take account of Commission guidelines to which it has not agreed. Clearly, in these circumstances one cannot speak of self-binding effect to self-imposed rules. Secondly, and in line with the first question, can company A bring legal proceedings against the State, arguing that the aid that has been granted to company B is contrary to certain (unilateral) Commission guidelines? If so, on what legal ground could such a claim then possibly be upheld in court? In the area of competition law, the situation is different in the sense that, as already underlined in Subsection 10.5.3, companies have more influence on their own legal position. Until recently, it was the Commission that decided whether an agreement concluded between different companies qualifies for an exemption under Article 81(3) EC from the cartel prohibition laid down in Article 81(1) EC. With a view to obtaining such an exemption, the companies themselves decide whether to notify their agreement to the Commission or not. Yet, national competition authorities are allowed to apply Article 81(1) EC and companies can also rely on the direct effect of this provision before the national court. In deciding whether an agreement falls within the scope of the prohibition of Article 81(1), these national authorities necessarily also (have to) assess whether the agreement in question

139 See

also Senden and Hancher (2000), pp 96 ff.

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would qualify for a Commission exemption or not. When confronted with such reliance on Article 81(1), the question may then also arise as to what relevance to give to Commission interpretative and in particular decisional acts, drawn up with a view to the interpretation and application thereof. The role of national competition authorities and courts has increased, as the deadline for application of Regulation 1/2003140 replacing Regulation 17/62 expired on 1 May 2004. A more decentralised system of application and enforcement of Articles 81 and 82 EC has now come about. In particular, the regulation entails the abolition of the exemption monopoly of the Commission, as Article 81(3) EC is to have direct effect and national authorities and courts will then be empowered to apply this provision themselves. This development will also add urgency to the question as to what relevance these authorities have to give to Commission soft law acts relating to the interpretation and application of Article 81 EC. This has also been acknowledged by Ehlermann, the former Director General of Competition at the European Commission, stating that the White Paper [on Modernization of the Rules Implementing Articles 85 and 86 of the EC Treaty of May 1999 – LS] promises the adoption of block exemptions, notices and guidelines.141 In a system characterized by the absence of prior administrative authorization, block exemptions, notices and guidelines will acquire an even more important place than they have today. Of particular importance will be a notice on the interpretation of Article 81(3), in order to clarify its scope.142 These horizontal texts will not only be a major contribution to legal security, but also to the coherence and consistency of the application of Article 81.143

Even more than today, under the future state of the law the following questions may thus arise. Suppose company A relies on Article 81(1) EC before the national competition authority or court and demands the annulment of an agreement concluded by competing companies B and C, arguing that according to the Commission De Minimis Notice their agreement must be considered contrary to Community law? Or, the other way around, what if company A relies on Article 81(1) before the 140 Ibid note 108. 141 OJ 1999, C 132/1, paras 78 and 85–86. 142 Meanwhile, Ehlermann’s prophecy has

been fulfilled, as in October 2003 the Commission has not only put forward a draft notice on the application of Article 81(3) EC, but also five other draft notices relating to cooperation of the Commission with national courts and to cooperation within the Network of Competition Authorities, the handling of complaints by the Commission, informal guidance letters and on the effect on trade concept. Available on: http://europa.eu.int/comm/competition/index_en.html 143 Ehlermann (2000), pp 563–64.

Indirect Legal Effects for the Executive 439 national competition authority or court and demands the annulment of an agreement concluded by competing companies B and C, which defend their agreement with the argument that on the basis of a Commission notice they considered that it was not contrary to Community law? On the basis of what legal reasoning or principle(s) can the national authority or court possibly be forced to uphold such an argument?144 Although the indications that Community law gives in this respect are limited, various possibilities must be considered. To begin with, the example given above in Section 10.2, concerning Directive 2002/21/EC, clearly raised this question for national regulatory authorities, as the European legislature prescribed in this directive not only that the Commission must adopt the necessary guidelines for the market analysis and assessment of significant market power, but also that the national regulatory authorities must take ‘the utmost account’ of these guidelines. Since it is by way of a binding legislative act that the national authorities are called upon to take the guidelines and recommendation into account in the actual application and enforcement of the legislative act, they are in fact obliged to do so, although the question still remains what the actual scope is of this duty.145 Far more often, however, such a duty will not be prescribed by a secondary Community law act. One must therefore turn again to general principles of law; in particular, can the principles of legal certainty, effectiveness, equality and/or (specific) cooperation provide a legal basis for such a duty to take account of a Commission decisional act? This will be considered in more detail in the next two subsections. The issue as presented above can be concretised by an example taken from Dutch legal practice, ie the Ruhrkohle Case, which was decided by the Dutch competition authority.146 In March 1998, Hoogovens Staal requested on the basis of the Dutch Competition Act an exemption from the cartel prohibition of its agreement with Ruhrkohle. In June 1999, Ruhrkohle brought a complaint before the competition authority and demanded the termination of this agreement, which forced Ruhrkohle to purchase its crude benzol exclusively from Hoogovens. It argued that the agreement was contrary to both the Dutch Competition Act and Article 81(1) EC, considering in particular that the relevant market for crude benzol had been wrongly defined. In 144 This

question is to be distinguished from the role of the national courts as discussed in Chapter 9. The perspective there was that of the courts as such, in particular their ‘general’ duty or competence to take account of soft law acts in the exercise of their judicial function. Here the perspective is in fact that of the individual parties in legal proceedings. 145 Cf also the wording of the Grimaldi and the Deutsche Shell Cases, discussed in Section 9.5. 146 Decision taken by the Director-General of the Dutch Competition Authority on the complaint of Ruhrkohle Handel Inter GmbH, directed to its decision of 4 May 2000, ref 426/47, no 1963–35.b111.ob.

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support of this argument, it referred to the Commission’s Notice on the definition of the relevant market and the observation therein that in the case where a marginal price increase in one area leads to trade flows in another area, the two areas form one market. In support of its arguments, Hoogovens invoked among other things the Commission guidelines on vertical restraints. The competition authority concluded that the agreement was not contrary to the Dutch Competition Act nor to Article 81(1) EC. It did so inter alia by stressing the discretion that the Dutch Competition Act leaves as to whether to assess the agreement under Article 81 EC and the restrictive use that at present is made of this possibility, while acknowledging that in the case of decentralisation of the enforcement of EC competition law this use may change. It further underlined that use is made of this discretion by taking account of the present legal framework, the principle of Community loyalty and the present European legal practice regarding the relation between the Commission and the national authorities. Referring to the Commission Notice on cooperation between the Commission and national competition authorities, it next concluded that in the case at issue it is not the appropriate authority to apply Article 81(1) EC, although it may give a prima facie judgment as to whether a complaint regarding Article 81(1) is founded or not. In this respect, it emphasised that the relation between the Commission and the national authorities is not characterised by a sharp delimitation of competences (except as regards Article 81(3)), but by the principles of cooperation and complementarity. Such a prima facie substantive assessment is considered to facilitate the work of the Commission, while the Commission may still conduct a more profound examination later. According to the competition authority, no prima facie breach of Article 81(1) could be concluded to exist. Yet, it deemed that the arguments of the parties concerning the relevant market and the restrictive effects of the agreement on competition require a profound examination of the actual market. It considered that it is not the appropriate authority to perform this examination, nor is it required to do so. Under the new, decentralised system, national authorities may actually be called upon sooner or required to start such an examination themselves and hence possibly also to address arguments relating to Commission soft law acts such as the ones presented in this case.

10.6.2

On the Basis of the Principles of Legitimate Expectations, Equality and Effectiveness?

The observations made in Subsection 8.5.2, where it was remarked that the system of the EC Treaty points primarily in the direction of a competence of the Member States regarding the follow-up to be given to Community soft law acts at the (general) regulatory level, also hold true at the (individual) application and enforcement level. Moreover, in the case of soft law acts merely requesting Member States to transpose them

Indirect Legal Effects for the Executive 441 into national law and policy, it can hardly be considered that they intend to impose an obligation of application and enforcement on national implementing authorities and courts. Yet, here again the question arises as to whether certain principles of law entail legal effects of Community soft law, in particular for national implementing authorities. The above quotation of Ehlermann can be taken as a point of departure for this discussion, in particular his consideration that in a decentralised system of enforcement of Community competition law, interpretative and decisional Commission acts will play an even more important role from the point of view of legal certainty, coherence and consistency. Obviously, the presumption underlying this view is that such acts will actually be applied by those concerned, in particular the national competition authorities and courts. The question is whether the concern of ensuring ‘legal certainty, coherence and consistency’ also entails an obligation for these authorities to take account of such Commission acts in deciding a particular case. Looking first at the possible role of the principle of legal certainty, in its meaning of legitimate expectations,147 the operation of this principle as a principle of good administration must in my view be considered excluded in this context. For, while it is the Commission that has raised the expectation of a certain interpretation and application of Community law, it is not a party in the proceedings that may be brought at the national level. Therefore, one can not speak of expectations that the companies have raised vis-a-vis each other (in the case of competition law) or that the State has raised vis-a-vis the companies (in the case of state aid). Moreover, given the fact that above in Subsection 10.5.3 it has been established that in the Commission-company relation, the principle of legitimate expectations plays a role only as regards the level of the fine but not as regards the substantive assessment of the agreement, the role this principle can play in national proceedings between different companies seems even more limited. So, Community law itself does not impose the conclusion that the principle of legitimate expectations can be successfully relied upon in such proceedings. Yet, if on the basis of national law the principle of legitimate expectations could be invoked in such proceedings, making it possible to rely on national decisional rules, this possibility should also exist as regards Commission decisional rules; on condition, of course, that this would be in conformity with primary and secondary Community law.148 Next, the concern of ensuring the coherence and consistency of the application and enforcement of Community competition law in the 147 See 148 See

Subsection 3.6.3.4 on the principle of legal certainty as such. Senden and Hancher (2000), p 101.

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Member States is shared by many authors, who underline the threat to and need for maintaining the uniform application of EC competition law in the case of decentralised enforcement. These concerns can also be expressed in terms of ensuring the effective and equal application of EC competition law.149 Do the principles of effectiveness and equality also entail a duty for the national implementing authorities and courts to take account of Commission decisional acts? Given the (still) rather uncertain role of the equality principle as a foundation for binding the Commission to self-imposed rules adopted outside the area of staff law, I consider it unlikely that this principle can play a significant role with a view to compelling national authorities to apply such rules. In my view, in the present state of Community law this would not actually be desirable either. That is to say, as long as the use and legal foundation of decisional and interpretative instruments has not somehow been institutionalised or regulated, I deem that giving such an effect to the equality principle should be approached rather carefully. Yet, the more general concern of ensuring the effectiveness of Community law in the national legal order, in particular the uniform application of EC competition law, may lead to a more far-reaching effect, in particular when considered in conjunction with the duty of sincere cooperation imposed on the Member States.

10.6.3

On the Basis of a Specific Duty of Cooperation

In Subsection 3.6.2.1, a link was made between the principles of effectiveness and of Community loyalty or sincere cooperation. Article 10 EC was thus considered to entail a duty for the Member States to take all possible measures to ensure that the Community legal system works effectively, and in doing so to cooperate with the Community institutions. In considering the role that this duty can play in the present context, one must here recall the observations made in Subsection 8.5.3 on the possible legal effects of Community soft law for the legislature. In particular, the reasoning established at that point as regards the duties of the national legislature to take account of Community soft law, can be carried further here as regards the duties of the national executive and also the national courts. To begin with, in Subsection 8.5.3.2 I reached the conclusion that no duty of transposition of or compliance with Community soft law can be imposed on the Member States if there is not some kind of hard law obligation, resulting either from the Treaty or from secondary legislation.

149 See

also Subsection 3.6.2.

Indirect Legal Effects for the Executive 443 Article 10 is not capable of filling this gap. In those circumstances, the Commission’s findings as expressed for instance in a notice may be a source of guidance for national authorities but they have no binding force. This conclusion ensues in particular from the Court’s judgment in the Case Brother Industries v the Commission.150 Yet, the situation was found to be different in the case of soft law acts that can be considered a specific expression of the obligation of cooperation contained in (now) Article 10 EC. That being the case, they have become binding as a result of that provision.151 In Subsection 8.5.3.3, I thus inferred from the ‘Hague Resolution Cases’ that an obligation of transposition of and compliance with Community soft law may result from a specific obligation of cooperation. In particular, the Court considered that Annex VI of the Hague Resolution makes specific or constitutes a concretisation of the obligation of loyal cooperation as laid down in (now) Article 10 EC. That is to say, it establishes what the duty of cooperation actually entails as regards the matter in question. As a result of that, the Annex must be considered binding on the Member States. So, the Article 10 obligation in itself does not induce such a conclusion; the soft law act at issue must be the expression of a specific duty of cooperation. Furthermore, the existence of such a specific duty of cooperation was found to depend very much on the area of law at issue. In the ‘Hague Resolution Cases’, it was thus relevant that the resolution concerned an area (fisheries) in respect of which the EC Treaty provides for the establishment of a common Community policy, which it had not yet proven possible to realise. According to the Court, in those circumstances there is a particular duty for the Member States to take (or ensure that) national action (is) in conformity with the few Community rules that have been adopted, if these express a specific duty of cooperation.152 The obligation of Community loyalty and sincere cooperation lies with all the national authorities, not only the legislative but also the executive and judicial. It seems only logical that this should also apply in the case that a specific duty of cooperation is or can be established, leading to the conclusion that an act is binding as a result of that duty. In view of this, the Court’s reasoning in the ‘Hague Resolution Cases’ can be carried further to the sphere of application and enforcement of Community soft law. That is to say, national implementing authorities and courts will also have to ensure that they act in conformity with such an act. In my view, the recognition of binding effect thereof also in fact entails the recognition of

150 Order of 30 September 1987 in Case 229/86 Brother Industries [1987] ECR 3757, especially p 3763. See subsection 8.5.3.2 for more details on this case. 151 Cf also Temple Lang (1990), pp 668–69. 152 Case 141/78 France v UK [1979] ECR 2923, para 8. Cf also Case 61/77 Commission v Ireland [1978] ECR 417, paras 65–66.

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its possible vertical direct effect;153 since the Member States are under an obligation (of result and not of mere effort) to transpose and comply with it in their legislation, it can be held against them in court if they clearly fail to do so. The above viewpoint can be explained by changing, by way of example, the situation at issue in the Hague Resolution Cases. Suppose that Ireland had adopted a measure saying that only persons of Irish nationality were entitled to fish in Irish waters and could obtain a fishing permit, and that it had not informed the Commission of this measure. Although Annex VI of the Hague Resolution allowed for the adoption of conservation measures by the Member States, it did so only on condition that the Commission had been informed of these measures and that they were non-discriminatory. In the case then of a British fisherman, residing in Ireland, applying for such a permit, would the national authority responsible for issuing the permits be required to disregard the national provision, because contrary to Annex VI of the Hague Resolution? Or if the British fisherman were to bring proceedings before the national court because of the refusal of his application, would the court be required to disregard the national provision because contrary to the Annex? In my view, this must indeed be considered a logical consequence of the Court’s reasoning and judgment in the Hague Resolution Cases.

So, in the case that a certain act can be taken to express a specific duty of cooperation, it may be considered binding not only upon national legislative, but also executive and judicial authorities. The question to be considered next is then whether the areas of state aid and competition law are areas that may involve the adoption of acts expressing such a specific duty of cooperation. In this regard, it already became clear in Subsection 6.6.3 that in the area of state aid a specific duty of cooperation may indeed exist between the Commission and the Member States, ensuing from Article 88(1) EC and in particular the shared powers in implementing this provision. This duty also becomes apparent in fact from the Commission Notice on cooperation between national courts and the Commission in the State aid field. In the area of competition law as well, it is beyond doubt that the concurrent powers of application and enforcement of the Commission and national competition authorities and courts require close cooperation between them. This is illustrated by the Commission Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EC Treaty and also by the Commission Notice 153 Provided

that the obligation can be considered also to fulfil the general conditions for direct effect, ie sufficiently precise and unconditional.

Indirect Legal Effects for the Executive 445 on cooperation between national competition authorities and the Commission in handling cases falling within the scope of Articles 85 or 86 of the EC Treaty. Under the decentralised enforcement regime, cooperation between the Commission and national authorities will be even more essential with a view to securing the consistent and uniform application of the Community competition law rules, as chapter IV of the new regulation makes clear.154 Its Article 11 thus concerns explicitly the cooperation between the Commission and the competition authorities of the Member States, stipulating inter alia that they ‘shall apply the Community competition rules in close cooperation’ (paragraph 1) and that the national competition authorities ‘may consult the Commission on any case involving the application of Community law’ (paragraph 5). Its Article 15 concerns the cooperation with national courts and Article 16 relates to the uniform application of Community competition law. In particular, this Article provides that when national competition authorities and courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions that would run counter to the decision adopted by the Commission.

As regards national courts, it is further stated that these ‘must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated’. Furthermore, rules concerning the exchange of information, the termination or suspension of proceedings and the establishment and consultation of an Advisory Committee are provided for. So, it is clear that the concurrent powers of enforcing the EC competition law rules necessitate and presuppose close cooperation between the Commission and national authorities, with a view to ensuring that national decisions and Commission decisions do not greatly differ and are not based on differing interpretations of Community law. As such, one can speak in this respect as well of the existence of a specific duty of cooperation. To be more precise, in the case of both state aid and competition law, it is thus the particular area of law at issue and the nature of the powers established in this area that induce such a conclusion; no common policy is envisaged but the shared powers of enforcement entail that one can speak of a specific duty of cooperation lying upon the Member States and the Commission, with a view to ensuring the effective application of the rules at issue. 154 Even

though containing several safeguards for the Commission to retain control. Cf O’Keeffe (2001) for a very critical comment on this, p 310 ff.

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Furthermore, in the case of competition law, it is the Commission that sets out the policy and in particular the way in which the competition law rules will be applied in a particular area. It also comes to the fore in the aforementioned articles of the new Regulation that, in particular when the national authority or court and the Commission are dealing with one and the same case, it is the Commission that has the ultimate power of decision. In order to avoid different approaches to cases dealt with at the Community level and at the national level, the national authorities will thus in fact have to take account of the way in which the Commission exercises its power of decision, also under the new enforcement system. Obviously, decisional and also interpretative acts are a clear indication of how the Commission will proceed in a certain case. Although the Regulation does not contain any reference to the use of interpretative and decisional acts with a view to ensuring uniform interpretation and application of the EC competition law rules by the national authorities, it is clear from the Commission White Paper that the Commission intends to continue this practice with a view to this purpose. So, it may be concluded that in the case that a Community act can be taken as a specific expression of the duty of cooperation as this is laid down in Article 10 EC, it must be taken into account by those concerned by this duty. As has become clear, such acts may not only occur in areas in respect of which the EC Treaty provides for common policy, but also in areas in which the Treaty establishes shared or concurrent powers of enforcement. This is clearly the case in the area of state aid, in particular acts taken on the basis of Article 88(1), and in that of competition law, most importantly in the framework of Article 81. Although the scope of Community (case) law is not yet very clear on this point, I have argued above that it is possible to carry the Court’s line of reasoning in the Hague Resolution Cases further, not only to the issues of (individual) national application and enforcement, but also to other areas of law. However, I would argue at the same time that even if such legal effects can be established for national authorities on the basis of the Court’s case law, for the sake of legal certainty and ultimately also uniform application of Community law, this situation is in need of institutional clarification. That is to say, national authorities and also courts will have to be aware of what rights and obligations are entailed by decisional instruments in the areas at issue, and in particular what duties are entailed by an act expressing a specific duty of cooperation. In my view, this task of clarification, in particular the determination of what Community legal instruments there are and what their purpose and status are within the Community legal order, lies in the first place with the European legislature.

Indirect Legal Effects for the Executive 447 10.7

CONCLUSIONS

Returning here to the questions posed in the introduction to this chapter, it has become clear that legal effects of Community soft law can be established at both the Community and the national executive level, albeit on the basis of different legal foundations. In this regard, in Subsection 10.3.1, three national approaches or constructions have been identified regarding the legal foundation of the recognition of self-binding effect to self-imposed rules in the Member States themselves: the first one is general principles of good administration, the second one is legislation or Acts of Parliament conferring legal consequences upon such rules, and the third and most far-reaching one is the very nature of administrative action itself, entailing an inherent power to establish binding administrative rules. In the context of Community law, the first legal foundation has been found to be (also) the most prominent one, yet certain features of the second and third approaches can be discerned as well. At the Community level, both in the area of staff law and in the area of economic law, the self-binding effect to self-imposed rules has been established in respect of Commission decisional acts. In the framework of staff law, this has been established in particular on the basis of the principles of equal treatment and patere legem quam ipse fecisti. In other areas of law, for a long time these principles did not play a significant role in this respect, but more recently there have been indications of a certain spill-over effect from the approach in staff cases to these other areas of law. In particular, the equal treatment principle is being increasingly evoked with a view to establishing self-binding effect. The relevance of the principle of legitimate expectations as a foundation for the recognition of self-binding effect has been found to differ, depending on the area of law at issue. In particular in the area of state aid, the legal protection of third parties appears to be calling for such recognition, and possibly more strongly than is the case at present. The need for legal certainty in this area of law has been recognised, as the transposition of several soft frameworks and guidelines into legislation shows. In line with this development, it can be argued that legal certainty also requires a stronger self-binding effect of the remaining soft law in this area. Furthermore, the fact that Community decisional rules are as such adopted with a view to increasing transparency and legal certainty also pleads in favour of recognition of self-binding effect, as a way of securing this in individual cases. Yet, in the area of competition law, the actual need for legal protection in an individual case may be less. In that case, effectiveness, flexibility and upholding the general interest of Community (competition) law may then have priority.

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Legal Issues of Community Soft Law

So, the possibility of self-binding effect is indeed recognised at the Community level as it is at the national level, in particular on the basis of principles of good administration. However, it has also been found that recently, in a number of cases, the Community courts have taken the binding nature of decisional acts for the Commission rather as a fact. As a possible explanation for this way of proceeding, I have put forward that the Commission is apparently considered to be under a duty to act in a consistent and non-arbitrary way, which entails that it simply must apply the rules that it has established itself with a view to the exercise of its implementing powers. Following on from this, one can then argue that the very adoption of decisional acts means that the Commission binds itself to the rules laid down therein and that the application and enforcement thereof is a requirement of good administration in itself. However, one can not speak of an absolute legal effect in the sense of the binding force of legislative acts, as deviation from decisional acts is always considered possible. Thus, there are important limitations to the self-binding effect: it is not recognised when the self-imposed rules at issue are unlawful; deviation from self-imposed rules is possible if this is sufficiently reasoned; deviation is possible depending on the clarity of the rules in question and the discretion they actually leave (absolute nature or not). At the national level, the application and enforcement of Community soft law has been found to fall largely within the competence of the national executive. Correctly in my opinion, in particular from the point of view of legitimacy, the Court cannot be said to have interpreted the principle of loyal cooperation contained in Article 10 EC in such a way as to entail a general obligation of application and enforcement of soft law by the national executive. Only in the case of a soft law act expressing a specific duty of cooperation, can this principle possibly give rise to such an obligation. Such a duty has been seen to depend very much on the area at issue, and in particular on the nature of the competences existing in this regard. It is thus clear that in the areas of competition law and state aid, there are shared enforcement powers that require close cooperation between the Commission and the Member States in order to be effective. This specific duty of cooperation, connected to the principle of effectiveness, in particular the securing of the uniform application of Community law, may then lead to the conclusion that national implementing authorities and also courts are under a duty to take account of certain Commission interpretative and decisional acts adopted in these areas. Furthermore, it has also been found that certain secondary Community law acts may prescribe a certain bindingness of Commission soft law rules for national regulatory authorities. However, the scope of the obligations thus imposed is as yet far from clear.

Indirect Legal Effects for the Executive 449 At the Community executive level, the self-binding effect of self-imposed rules and the legal foundations thereof are thus increasingly taking shape, as the case law increasingly provides leads for this. By contrast, at the national level much still remains in the dark as regards the precise obligations lying upon national implementing authorities. In particular in view of the new decentralised system of enforcement of the EC competition law rules, alongside the intention to continue the use of interpretative and decisional instruments, I deem that the use thereof has to be regulated at the level of primary Community law. This with a view to enhancing not only the effectiveness (ie the actual application of the acts at issue), but also the transparency of Community law and the legal certainty of those concerned.

Part IV

Summary, Conclusions and Recommendations

11 The Use of Community Soft Law Evaluated 11.1

INTRODUCTION

T

HE STUDY CONDUCTED in this book on the phenomenon of Community soft law was inspired by the shortcomings — in particular in terms of quantity and quality — of the Community legislative process, which have added to the crisis of effectiveness and legitimacy of the European Union. One response to this crisis has been the development of a new legislative policy or culture, an important element of which is the differentiation of the Community legal instruments and methods of governance. It is in this context that the use of soft law instead of legislation — ie the use of instruments such as recommendations, resolutions, codes of conduct and guidelines — has been put forward, initially in the Edinburgh European Council Conclusions. More recently, the Laeken European Council and the Commission White Paper on European Governance have given a new impulse to this — debate on — legislative policy. The European Convention, put into place at the beginning of 2002, has also dealt with the issue of (simplification of) Community instruments,1 and as such this issue is now on the agenda of the ongoing Intergovernmental Conference as well. Since top-down legislation is increasingly considered an ultimum remedium to realise European integration, lawyers and other legal practitioners will increasingly be confronted with other types of Community instruments, including soft law instruments. Yet, as soft law is considered a ‘shadow area between law and politics’,2 this is in fact also a grey area for most lawyers. Simply making the observation that soft law instruments lack legally binding force but may have some legal relevance will

1 See

the document produced by the Working Group on the simplification of legislative procedures and instruments, on the present system of instruments (CONV 162/02, 13 June 2002) and its final report (CONV 424/02, 29 November 2002). The Articles I–32 to 36 of the draft Constitutional Treaty establish a new classification of Community legal instruments. See CONV 850/03, 18 July 2003, and Subsection 2.4.1.1. 2 Thürer (1990), p 131.

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no longer suffice; one will have to be aware of how such instruments relate to hard law, including legislation, and what their legal relevance actually boils down to. Against this background,3 the central question of this book was formulated as follows:4 How do Community soft law instruments and their use fit into the Community legal system and, in particular, relate to Community legislation? This question has served a dual purpose: in general, to create a better understanding of the many different forms taken by the phenomenon of soft law in the context of the EC, and in particular, to assess the extent to which these soft law instruments can indeed provide a — satisfactory — alternative to legislation, and if they can, under what conditions. In order to establish their relationship to legislation, soft law instruments have been scrutinised as to the nature of the rules laid down therein, the functions and purposes they fulfil, their adoption process and publication, legal foundation, and intended and possible legal effect.5 This was done after first having presented the main characteristics of the Community legislative instruments themselves.6 Following on from this, an assessment was made of what the findings in these respects entail for the effectiveness, legitimacy and transparency of Community action. With a view to this assessment, these notions were first placed in the broader framework of democracy and the rule of law, upon which the Community is based, and then further analysed by identifying the different principles that they actually cover and that can be said to guide the adoption of legislation.7 At the same time, the questions were identified that the use of soft law raises in relation to these principles, and that cast doubt on the premise underlying the new legislative policy, ie that the use of soft law contributes to enhancing the effectiveness, legitimacy and transparency of Community action. Testing the use of soft law against these guiding principles entailed an examination that — necessarily — touched upon many different issues, including questions of competence, legal protection, internal and external division of powers, legal construction by the Community courts, and the possible legally binding force and other indirect legal effects of soft law instruments despite this designation. These indirect effects were examined as regards the legislature, judiciary and executive at both the Community and the national level, and this made clear how Community

3 See in more detail Sections 1.1 to 1.6. 4 Section 1.7. 5 In Section 6.2, ‘legal effect’ was presented

as an umbrella concept, encompassing on the one hand the notion of ‘legally binding force’ and on the other that of ‘indirect legal effects’. 6 In Subsection 2.4.1. 7 In Chapter 3.

The Use of Community Soft Law Evaluated 455 soft law may affect (the development and application of) national law. In addition, the examination revealed the interconnection between developments taking place in the institutional sphere and the progressive development of substantive Community law; that is to say, how the increasing use of soft law may influence the further establishment and elaboration of Community law and policy. This in fact enables me to reflect on the use of soft law in a somewhat broader perspective, not strictly limited to formulating an answer to the central question. In particular, it also enables me to assess how the use of soft law instruments that do not have the intention or capability to function as an alternative to legislation, may affect the effectiveness, legitimacy and transparency of Community law and policy. In this final chapter, I will therefore first evaluate the actual potentiality of soft law to function as an alternative to legislation (Section 11.2). Next, I will highlight the most important findings regarding the possible legal effect of Community soft law (Section 11.3), since this effect makes it urgent in particular to look at the implications of the use of soft law for upholding democracy and the rule of law in the EC (Section 11.4).8 In looking at these implications, the emphasis will lie on the limits that Community law actually sets for the use of both true soft law and hard law in the clothing of soft law;9 for contrary to what is often thought, there is not an unlimited competence to adopt true soft law and to lay down hard law rules in supposedly soft law instruments. Problems that remain with the present use of soft law will also be discussed. On the basis of this evaluation, I will also put forward some changes that in my view are required as well as a number of concrete recommendations (Section 11.5). For instance, should the source catalogue of Article 249 EC be amended?

11.2

11.2.1

SOFT LAW ONLY A LIMITED ALTERNATIVE TO LEGISLATION

A Hybrid System of Community Soft Law Instruments

It is beyond dispute that the Community legal order constitutes a — supranational — legal order in its own right, to be distinguished from national legal systems and other international organisations. In view of this, I have approached the phenomenon of Community soft law from the angle of EC law itself. To begin with, a classification of Community

8 See 9 See

also the delimitation of the present study in Subsection 1.7.3 and Section 4.7. briefly on this distinction, the test summarised in Subsection 6.5.6.

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sources of law into primary, secondary and tertiary sources was made,10 with a view to establishing an initial orientation of soft law in relation to hard law, in particular secondary legislation. This classification was made on the basis of legally binding force and the precedence of one source over the other; soft law instruments have been characterised as tertiary sources because they lack ‘inherent’ legally binding force, ie have not been attributed legally binding force,11 and also lack precedence over other sources of law.12 In the effort to determine the contents of the concept of Community soft law, it became clear at the very outset of this study that many different instruments are generally considered to fall within this concept, and that there is no agreement on its definition or on the use of this terminology as such. Yet, for the reasons set out in Section 4.2, I consider the use of the term ‘soft law’ to be satisfactory enough, and in Section 4.3 I formulated a definition of soft law that I consider most useful for the purposes of this study and that also reflects the elements on which there can be said to be consensus in legal writing. Soft law has thus been defined as: Rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed at and may produce practical effects.

From this definition, it ensues that legally binding force is the main distinguishing feature between hard law and soft law, which is in fact already expressed in the terminology itself. This definition does indeed leave room for many instruments to fall within its scope, although in other respects, such as purpose and function, they may differ quite considerably. Community soft law is thus of a heterogeneous nature, and the two non legally binding instruments provided for in Article 249 EC — recommendations and opinions — are only two of the instruments that fall within its range. The action taken with a view to establishing a single market for postal services provides an illustration of this heterogeneity. In June 1992, the Commission submitted a Green Paper on the development of the single market for postal services. The subsequent extensive consultation process resulted in the adoption of Guidelines for the Community postal services, issued in June 1993. In a Resolution of 7 February 1994 the Council invited the Commission to put forward proposals for the harmonisation and gradual liberalisation of the postal sector. In July 1995, this led to the adoption of a package of measures, which consisted of a 10 Sections 2.2 ff. 11 See Subsection 6.2.1 on this notion and below Subsection 11.3.1. 12 See the discussion in Sections 2.5 and 6.3 and also Subsection 9.5.3.2.

The Use of Community Soft Law Evaluated 457 proposal for an EP and Council Directive on common rules for the development of Community postal services and the improvement of quality of service, and a draft Commission Notice on the application of the competition rules to the postal sector and, in particular, on the assessment of certain State measures relating to postal services. This summary of the Community action relating to the liberalisation of the postal sector was given in the Communication from the Commission to the Council, the EP, the ESC and the COR on the public consultation on the aforementioned draft Notice. With a view to bringing some order into the proliferation of — at least presumed — soft law instruments which have occurred in practice and whose use is to some extent recognised in the EC Treaty (such as programmes),13 I have classified them into three major categories on the basis of their primary function: preparatory and informative instruments, interpretative and decisional instruments, and formal and non-formal steering instruments. Undeniably, the first and second categories bear resemblance to instruments that also occur in national law and the third category to instruments occurring mostly in international law. As such, the Community system of soft law instruments can be characterised as a hybrid one, yet consisting of instruments that have gained a specific Community meaning. Such a classification into preparatory and informative instruments, interpretative and decisional instruments and formal and non-formal steering instruments may be considered not entirely felicitous, from the point of view that the instrument or form in which rules have been cast is ultimately only one indication of their nature. As a result of the Court’s substantive approach to soft law, it is in the end the contents and underlying intention of an act that are decisive in this regard.14 Yet, I deem this classification useful, as it gives a first indication of what Community instrument and rules one is dealing with, and brings some order into the proliferation of Community soft law acts.

11.2.2

Its Pre-, Post- and Para-Law Functions

The reason I have made a functional classification of soft law instruments is that in itself it already says something about their relationship to legislation. In addition, the express identification of three possible functions that soft law instruments may fulfil in relation to legislation — the prelaw, post-law and para-law functions — facilitates the assessment of their actual potentiality to function as an alternative to legislation. 13 See 14 See

Subsections 5.2.1.3 and 7.3.3 on these. also below Section 11.3 on the Court’s substantive approach to soft law.

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Summary, Conclusions and Recommendations

The pre-law function is understood to refer, firstly, to the fact that a particular instrument is adopted with a view to the elaboration and preparation of future Community legislation and policy and, secondly, to soft law acts paving the way for future legislation in the sense of increasing the basis of support for certain rules or measures. The post-law function is fulfilled by instruments that complement and support both primary and secondary Community law, by putting these into effect or facilitating the correct and uniform interpretation and application thereof. The para-law function refers to the use of soft law instead of or as an alternative to legislation, which may be induced by a variety of reasons. So, only the soft law instruments that can be said to fulfil this function are in fact intended to function as a — temporary or permanent — alternative to legislation.15 Furthermore, in order to be able to function as an alternative to legislation at all, soft law instruments must in my view at least share certain characteristics with Community legislative instruments (regulations and directives); in particular, they must concern the establishment of rules of conduct of a general and external nature. In addition, it is also of importance what purposes soft law instruments aim at and whether these are akin to those aimed at by legislative instruments.16 The latter lay down positive integration measures aimed at either the harmonisation or the unification of national laws. Harmonisation has been said to refer to integration processes that lead to the creation of common frameworks leaving room for divergent national specification, whereas unification goes a step further by aiming at the creation of uniform law and by thus subjecting a certain legal relation to the same rules.17 The detailed scrutiny of soft law instruments in Part II has revealed that only a limited number of instruments can actually be said to have the intention and capability to function as an alternative to legislation. Thus, it has been found that preparatory and informative instruments, encompassing in particular Green Papers,18 White Papers,19 action programmes20 and informative communications,21 do not fit in with the definition I have given to soft law, since they do not establish rules of conduct. They are rather adopted with a view to establishing what rules of conduct should

15 Subsection 4.6.2 and more concretely Subsection 5.4.4.2. 16 See also Section 4.5. 17 See Subsection 2.4.1 on these purposes. 18 Eg the aforementioned Green Paper on the single market for postal services. 19 Relating for instance to the development of European social policy. 20 Such as the Environmental Action Programmes and the Action Programmes

on equal treatment of women and men. 21 For instance the above-mentioned Communication from the Commission on the public consultation on the draft Notice on the application of the competition rules to the postal sector.

The Use of Community Soft Law Evaluated 459 be developed and what instruments adopted in the future. Therefore, by lacking a general, normative nature themselves, they are not able to function as an alternative to legislation, nor are they in fact intended to do so. As such, they have been found to fulfil the pre-law function. That does not alter the fact, however, that on the basis of such preparatory acts it may actually be concluded that legislation is not necessary.22 Interpretative and decisional instruments, encompassing in particular Commission interpretative and decisional communications and notices, guidelines, frameworks and codes, have been found to be of a general, normative and both internal and external nature, and thus to fulfil the characteristics required to function as an alternative to legislation. However, it has also been established that, in principle at least, they are not intended to function as an alternative to legislation but rather to complement it. In particular, they aim at providing guidance on the correct interpretation and application of Community (hard) law and not so much at laying down or creating new legal rules, independent of existing Community law; and decisional acts contain general rules regarding the way in which implementing powers will be exercised. As such, these instruments have been said to fulfil primarily the post-law function.23 A clear example of an interpretative act is the Commission interpretative Communication on the free movement of services across frontiers. Examples of decisional acts are the De Minimis Notice and the aforementioned (draft) Commission Notice on the application of the competition rules to the postal sector and, in particular, on the assessment of certain State measures relating to postal services. In respect of formal steering instruments, ie those provided for by the EC Treaty itself, it has been established that opinions neither have the intention nor can be considered capable of functioning as an alternative to legislation, as they are of an individual nature and therefore lack general applicability. Furthermore, they have been found to fulfil the pre-law and post-law functions, but not the para-law function. Opinions may thus be adopted inter alia within the framework of the Article 226 EC procedure, concerning the alleged infringement of Community law by a Member State; within the framework of the co-decision procedure; concerning applications for EU membership; or expressing the Commission’s viewpoint on the admissibility of proposed national measures. Recommendations, on the contrary, both those adopted by the Council and those adopted by the Commission, appear to lay down rules of a general, normative and external nature and are thus capable of functioning as an alternative to legislation. Moreover, it appears that they fulfil

22 See 23 See

also the conclusions drawn already in Subsection 5.6.2. also the conclusions drawn already in Section 5.6.

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Summary, Conclusions and Recommendations

the pre-,24 post- and para-law functions. The last of these functions shows that to a certain extent at least, recommendations are also intended to function as an alternative to legislation.25 Examples of these include Commission Recommendation 99/28/EC concerning the improvement of authorisation procedures for trans-European energy networks and Commission Recommendation 88/590/EEC concerning payment systems, and in particular the relationship between cardholder and card issuer. As regards certain non-formal steering instruments, in particular codes of conduct or practice and resolutions, it has become clear that they are often similar to recommendations, in the sense that they too lay down general and external rules of conduct. As such, these have also been considered to fulfil the para-law function. The Council Resolution of 9 June 1997 concerning a handbook for joint customs surveillance operations can be mentioned as an example in this respect, as well as the Commission Communication of 17 July 1996 on a Code of Practice on the implementation of equal pay for work of equal value for women and men. Yet, Council conclusions and declarations, also discussed under the heading of non-formal steering instruments, have in fact been found not to establish such a kind of rules, but rather to give evidence of the political acceptance of future policy lines. As such, they have been considered to be indeed more political instruments and to fulfil primarily the pre-law function.26 This can be seen for instance from the Council Conclusions of 26 November 1998 on the future framework for Community action in the field of public health and the Council Declaration on the legislative programme. Generally speaking, then, only recommendations, resolutions and codes of conduct or practice can be considered to fulfil the para-law function and consequently to have the capability and intention of functioning as an alternative to legislation. Yet, quite importantly, that is not to say that they necessarily pursue the same purposes as Community legislation. In particular, it has been found that, except for certain Commission recommendations, these instruments aim rather at establishing closer cooperation, coordination or a concerted approach between the Member States. A clear illustration of this is offered by Council Recommendation 98/56/EC on European cooperation in quality assurance in higher education, which was adopted on the basis of (ex) Articles 126 and 127 EC, excluding the adoption of any harmonisation measures.

24 See 25 See 26 See

also below Subsection 11.4.4. also the conclusions drawn already in Section 5.6. the conclusions drawn already in Section 5.6.

The Use of Community Soft Law Evaluated 461 In my view, the establishment of closer cooperation, coordination or a concerted approach is a less far-reaching objective than the harmonisation of law, let alone its unification. In particular, it seems that the choice of one of the aforementioned soft law instruments not only says something about whether or not the Community action thus put forward has legally binding force, but to a certain extent also about the intensity of this action; the aim of coordination established in a regulation or directive thus usually boils down to the harmonisation or unification of law, whereas coordination established in one of these soft law instruments is often merely aimed at the establishment or promotion of better coordination of national policies and objectives. In my view, it would be appropriate to specify this more limited purpose of at least the recommendation in Article 249 EC, or in any other EC provision establishing a new source catalogue, if decided upon by the Intergovermental Conference. As such it could also be very well linked to the open method of coordination, by specifying that it is one of the main instruments or tools for its application. This can be done without necessarily fixing each aspect of this method, which is indeed difficult given the different ways in which the coordination process is given shape in the various policy areas.27 It is therefore disappointing that in its final report the European Convention’s Working Group on simplification did not propose any amendments to the present formulation of the recommendation and the opinion in Article 249 EC,28 and that no such amendments are contained in the draft Constitutional Treaty, drawn up subsequently by the Praesidium of the European Convention.29 To conclude, the discussion of the different functions that the three main categories of soft law instruments can be said to fulfil has at the same time revealed the role that Community soft law may play in the — gradual — development of Community substantive law and policy. Illustrative of this is the interplay of soft law acts that were adopted with a view to the creation of an internal market for postal services, already described above. Clearly, a number of soft law acts were adopted leading up to the adoption of the directive, which was complemented by yet another soft law act.

11.3

THE LEGAL EFFECT OF COMMUNITY SOFT LAW

Turning now to the possible legal effect of the different soft law instruments thus identified, what actual threat do they entail in the sense of 27 See 28 See 29 See

in particular Subsection 5.4.3.2 on this issue. CONV 424/02, 29 November 2002, p 4. its Articles I–32 to I–36, CONV 850/03, 18 July 2003.

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Summary, Conclusions and Recommendations

imposing legal obligations and creating rights ‘by the backdoor’? That this is not an imaginary threat can be seen in particular from Commission practice. One example in this respect is Commission Recommendation 97/489/EC concerning transactions by electronic payment instruments and in particular the relationship between issuer and holder. In this recommendation and in fact also in its predecessor, Recommendation 88/590/EEC concerning payment systems, the Commission imposed a deadline for its implementation and threatened to adopt legislation in the case that it deemed this implementation to be unsatisfactory. Another example is provided by the Commission Communication concerning an Internal Market for Pension Funds, whose nature was merely interpretative according to the Commission, but which was in reality a virtually unmodified directive proposal that the Commission had withdrawn because the Council could not reach agreement upon it. As will be seen below, the Court ‘punished’ this use. In Section 6.2, the concept of ‘legal effect’ was said to cover on the one hand the possible legally binding force of — presumed — Community soft law acts and, on the other, the possible indirect legal effects of ‘true’ soft law. These will be discussed in turn. A preliminary observation is that the issue of legal effect of Community soft law and the precise implications of the Court’s case law are sometimes still rather obscure and that, overall, there seems to be little awareness of these. Whether this calls for some kind of clarification in the Treaty will be considered in Subsection 11.4.6.

11.3.1

‘Inherent’ and ‘Incidental’ Legally Binding Force

In the examination of the possible legally binding force of soft law acts, I have made a further distinction between ‘inherent’ and ‘incidental’ legally binding force. ‘Inherent’ legally binding force refers to the establishment by the law itself that an instrument is to have binding force as a general and inherent feature (eg the regulation and directive in Article 249 EC).30 By their very nature, soft law instruments lack such ‘inherent’ legally binding force, which entails that they can not, as a general rule, impose duties on individuals that must be complied with or create rights that can be enforced in court. Thus, one can not normally directly rely on them before the national court. Yet, a soft law act is capable of having ‘incidental’ legally binding force, which refers to the possibility of establishing the binding force of an individual act on the basis of its particular or specific merits, despite its soft

30 See

Section 6.4.

The Use of Community Soft Law Evaluated 463 outward appearance. This is a result of the substantive approach which the Court has taken to soft law instruments.31 Two possible ways of recognising ‘incidental’ legally binding force have been identified. This may be concluded to exist firstly on the basis of the substance of a particular act, and secondly on the basis of its underlying agreement. In fact, in both cases one can speak of an intention of binding force and what is at issue then is not true soft law, but hard law in the clothing of a soft law instrument. As regards the first way, ‘incidental’ legally binding force can come about when there is an intention of creating new legal effects, not already contained in the (underlying) provisions of Community law.32 Relevant elements in the determination of such an intention are the wording and terms of the act, the context and previous history thereof and, to a certain extent at least, also the form of the act and its publication and/or notification. This can be seen inter alia from the Court’s judgment in the France v Commission Case,33 in which France sought the annulment of the aforementioned Commission Communication on an Internal Market for Pension Funds. According to the Court, this communication went beyond being merely interpretative, given in particular the context in which it had been adopted, its imperative wording and the fact that the very content of certain paragraphs of the communication showed that the legal effects were not as such inherent to the relevant Treaty provisions on free movement. In order to lawfully impose such new legal rules, a number of requirements must be complied with. It is thus clear that a legal basis for imposing these rules must have been identified and that their adoption must have taken place in conformity therewith: adoption by the competent institution and, where applicable, in the form/instrument prescribed. In the above-mentioned case, these conditions were clearly not fulfilled; no legal basis was identified, only the Council was empowered to adopt the rules at issue and this only by way of a directive. Although some obscurities remain regarding in particular the applicability of the giving reasons requirement, decision-making procedure and publication/ notification requirement, it can be concluded that in fact the same requirements have to be fulfilled as in the case of instruments having ‘inherent’ legally binding force; the imposition of less strict requirements in the case of hard law in the clothing of soft law would be unacceptable from the point of view of the legitimacy of Community

31 See Subsection 6.5.1. In contrast to the formal approach to hard law instruments, discussed

in Subsection 6.4.1. 32 See in detail Subsection 6.5. 33 Case C–57/95 France v Commission [1997] ECR I–1640.

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Summary, Conclusions and Recommendations

action.34 Moreover, such less strict requirements could in fact constitute an incentive for the institutions to opt for a soft law instrument instead of a formal hard law instrument such as the directive, in order to circumvent the latter’s formal requirements. It has been found that in particular Council recommendations may fulfil the conditions for ‘incidental’ legally binding force — thus in fact constituting lawful hard law — and that given their particular features they may actually entail directly enforceable rights as against the Member States and impose obligations upon the latter.35 A Council Recommendation that seems to fulfil all the required conditions is Council Recommendation 98/376 on a parking card for people with disabilities. This recommendation is quite mandatory in nature, as it stipulates that the Member States should take the necessary steps to ensure that the card is available by 1 January 2000. Furthermore, it was adopted on the basis of and in conformity with the requirements imposed by (ex) Article 75(1) EC; this provision does not prescribe a particular legal instrument, declares the Council competent to act and prescribes the consultation procedure, which was indeed followed by the Council. Moreover, the recommendation was published in the L-series of the Official Journal. In most cases, however, soft law acts aiming at establishing new legal effects will be unlawful or irregularly adopted acts, in particular for having been adopted by an institution that was not competent to do so. This danger presents itself in particular as regards Commission recommendations, given their specific characteristics,36 but also as regards other Commission acts.37 With regard to the Pension Funds Communication, the Court did indeed establish its unlawfulness. Yet, that is not to say they are for that very reason non-existent. It is a logical consequence of the Court’s substantive approach to soft law, that such an unlawful act must actually be applied as long as it has not been repealed by the adopting institution, or annulled or declared invalid by the Court. So, it can not be argued that the act can not have binding force anyway, or is non-existent for not complying with essential (procedural) requirements. If one does not wish to implement and comply with such an act or does not wish to be confronted with its application, legal proceedings will have to be initiated against it. An action for annulment is the most obvious in this respect, but indirect challenge by virtue of the preliminary procedure of Article 234 EC

34 See 35 See

Subsection 6.5.5.1 and Section 6.8. Subsection 6.5.7.1. On the fact that this conclusion does not mean that the institutions have unlimited freedom to lay down legally binding rights and obligations in soft law acts, even if they can be said to be lawful, see below Subsection 11.3.2.1. 36 See in particular Subsections 5.4.4.1 and 5.4.4.2. 37 See Section 6.5 for examples dealt with by the Court.

The Use of Community Soft Law Evaluated 465 and the plea of illegality of Article 241 EC are also possible. Moreover, by virtue of Article 288 EC the Community institutions must also be considered liable for any damage caused by the adoption of hard law acts in the clothing of soft law.38 Such a possibility cannot even be ruled out when the adoption of true soft law acts has caused damage, inter alia when it can be established that there was a duty upon the Community to adopt legislation,39 when the information provided for in the soft law act is inadequate40 or when the soft law act has raised legitimate expectations as to the conduct of the adopting institution.41 It has been seen that the substantive approach of the Court has mainly been induced by the interest of the legal protection of the individual, providing it with the possibility of contesting acts affecting its legal position. Furthermore, this approach has been found to fit in best with the system of legal protection as this has been laid down in the Treaty.42 The scope of the legally binding force thus established will depend on the characterisation of the act at issue; if the Court designates it as one of the binding Article 249 EC instruments,43 its scope will obviously be the one recognised to this instrument.44 In all other cases, the question for instance whether it must be transposed into national law or not and whether it may have direct effect or not, will depend upon the actual characteristics and contents of the act.45 A logical consequence would also be that the duty of consistent interpretation applies to hard law in the clothing of soft law, in the same way as it does to ‘regular’ hard law. The second way to conclude that presumed soft Community acts have ‘incidental’ legally binding force concerns acts that have somehow been agreed upon by the adopting institution and their addressees. Yet, agreement alone does not suffice; primary or secondary Community law must provide a legal basis for this, by expressly providing either for the adoption of ‘agreed’ acts or for a specific duty of cooperation. Quite importantly, it has become clear that, in itself, the general duty of sincere cooperation as established in Article 10 EC does not provide sufficient ground for the recognition of legally binding force of ‘agreed’ acts.46 This second possibility of establishing ‘incidental’ legally binding force has thus far presented itself in particular in the area of state aid, regarding 38 See Subsection 6.5.7.2 on this. 39 Cf below Subsection 11.3.2.1 and Hartley (1998), p 451. 40 Case 169/73 Compagnie Contintentale France v Council

[1975] ECR 117, as discussed by Mortelmans (1979), p 28. 41 See also below Subsection 11.3.2.3 and Mortelmans (1979), p 29. 42 Subsection 6.7.2. 43 Which it does in particular as regards individual acts, designating them as decisions. 44 See Subsections 2.4.1.3 to 2.4.1.5 on the scope of the legally binding Article 249 instruments. 45 See further on this Subsection 6.5.7.1. 46 See Subsection 6.6.

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frameworks or guidelines established by the Commission and accepted by the Member States. In this area, it is very clear that a shared competence of the Commission and the Member States is at issue; both have been assigned a task in enforcing the Community rules in this area, which requires close cooperation in order to be effective. The acts agreed upon can be seen as an expression of this specific duty of cooperation, established in (now) Article 88(1) EC. This was made clear by the ECJ in the IJssel-Vliet Case,47 in respect of the Guidelines for the examination of state aids in the fisheries sector, which were adopted on the basis of that provision and which the Dutch government had accepted.48 I have deemed this possibility of establishing ‘incidental’ legally binding force in other substantive areas of law to be fairly limited, as it has been found that the existence of such a specific duty of cooperation depends very much on the area of law at issue. Yet, I have considered that in the area of external relations such a possibility may also present itself,49 and that in the sphere of inter-institutional relations, ‘incidental’ legally binding force of inter-institutional agreements may be concluded upon on the basis of their obvious underlying agreement.50 The scope of the binding force of the state aid acts at issue has been found to be wide; Member States that have accepted such Commission acts — and as a result not only regulatory authorities but also national courts — will be under an obligation to implement them. Consequently, they may also impose duties and create enforceable rights for third parties. For instance, companies that have received aid in contravention of such an act and are summoned to pay back the aid can not refuse this by arguing that the Member State is not bound by it. Similarly, in support of its claim before the court, a company must be considered entitled to rely on rights contained in such acts. At the same time, a concerned undertaking — an aid recipient or one of its competitors — must also be considered allowed to challenge the lawfulness of the contents or legal foundation of such acts before the (national) court, and hence their application. The national court may then have to refer preliminary questions to the ECJ.51

47 Case C–311/94 IJssel-Vliet [1996] ECR I–5023. 48 See Section 6.6. 49 See Subsection 6.7.2 and also Article 300 EC

providing for binding international agreements. As will be seen in the next subsection, a duty of specific cooperation may actually also exist and impose duties of transposition of and compliance with soft law acts even when they have not been agreed upon by their addressees. 50 Subsections 6.7.2 and 7.3.2.2, in which reference has also been made to the Declaration re Article 10 EC, attached to the Nice Treaty, and providing for the adoption of interinstitutional agreements. 51 See Subsection 6.6.4 and also Senden and Hancher (2000).

The Use of Community Soft Law Evaluated 467 11.3.2

Indirect Legal Effects of True Community Soft Law

One can speak of ‘indirect legal effects’ when the legal effect does not ensue directly from the nature of the act itself, but indirectly from the operation of other legal methods and principles.52 The possible indirect legal effects of true Community soft law have been examined at both the Community and the national level, and this for the legislature, judiciary and executive. Naturally, however, the outcome of this examination is also of importance for establishing how the use of soft law affects the legal position and judicial protection of individuals. As a starting point here can serve the observation that, although the implementation of Community soft law — encompassing the transposition, application and enforcement thereof and compliance therewith — has been found to be in principle within national competence and the competence of the Community institution(s) concerned,53 Community law sets a number of limits to these competences that entail certain legal effects. These limits flow not only from the EC Treaty itself, but in particular from general principles of law, to be respected by both the Community institutions and national authorities acting in their Community law capacity. 11.3.2.1

The Legislative Level

Starting with the Community legislature, it has been established that, generally speaking, soft law can not affect its power to adopt legislation whenever it deems this necessary and there is a legal basis for this. Yet, I have also argued that sometimes one may speak of a ‘prohibiting’ legal basis, in the sense that whenever the Treaty provides specifically for the adoption of recommendations, such as Articles 149(4) and 151(5) in relation to respectively the areas of education and culture, the adoption of legislation on a general legal basis such as Article 308 EC is excluded.54 Conversely, the Community legislature (and also the executive in fact) does not have unlimited freedom to confine itself to the adoption of soft law instruments. Various grounds have thus been identified for an obligation of the Community legislature to ‘transpose’ soft law into legislation. A first ground for such an obligation can be found in the Treaty or secondary legislation itself. A distinction has been made in this respect between ‘obligating’, ‘enabling’ and ‘in-between’ legal basis provisions.

52 See Subsection 6.2.2. 53 See inter alia Subsections 54 Subsection 8.3.2.

8.4.1, 8.5.2, 9.5.1 and Section 9.2.

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Only where an ‘obligating’ legal basis for legislation exists, providing for instance that the Council ‘shall issue directives or regulations’, as Article 40 EC does in respect of the free movement of workers, may one in my view assume that there is in fact a duty to adopt legislation. Where a legal basis merely enables the adoption of legislation by stipulating that the Community institutions ‘may take appropriate action’, as Article 13 EC does with a view to combating discrimination, such a duty can not be concluded upon. In the case of a legal basis in-between these two extremes the situation is more complicated, as these are ‘obligating’ in the sense that Community measures have to be adopted, but ‘enabling’ in that they leave considerable room for in particular the application of the proportionality principle when it comes to the form and legal nature — binding or non-binding — thereof. It is then provided that for instance ‘the Council shall adopt measures’, as occurs in Title IV of Part III of the EC Treaty, relating to visa, asylum and immigration policies. It appears that in respect of such legal basis provisions, it depends a lot on the objective of the provisions in question whether or not there can be an obligation of ‘transposition’ and thus of the adoption of legislation. In particular, when the establishment of a common policy is envisaged, such as common transport policy, it is clear that this objective cannot be realised with the adoption of mere soft law.55 Yet, even if a legal basis provision leaves much scope for the application of the subsidiarity and proportionality principles, and this application leads to the conclusion that there is no need to adopt legislation given the objective aimed at, it has been found that other general principles of law may pull in the direction of legislation. These may thus also provide a ground for an obligation to adopt legislation. The principles at issue are not only principles aiming at the protection of the interests of the Community and national institutions, including in particular institutional balance, Community loyalty and effectiveness, but also principles aiming primarily at the protection of individuals and companies, such as the principle of legal certainty.56 A balancing of the principles of subsidiarity and proportionality on the one hand, and of other general principles of law such as legal certainty, uniform application, equality and institutional balance57 on the other, thus appears necessary.58 In addition to the conclusions already drawn in this respect in Section 8.6, and in advance of the evaluation below in Section 11.4, it should be emphasised here in particular that when it appears that a soft law act aims 55 See 56 See 57 See 58 See

Subsection 8.3.2. Subsection 8.3.3. below Subsection 11.4.3. on these conflicting principles Subsection 8.3.3.

The Use of Community Soft Law Evaluated 469 at having binding force or raises doubts as to what rights and obligations actually flow from it — and thus is misleading as to the legal rights and obligations that actually exist under Community law — the principle of legal certainty calls for either its abrogation, amendment or transposition into a formal legislative instrument.59 This also holds true when one may, in principle, speak of lawful hard law in the clothing of soft law, as concluded below in Subsection 11.3.1. An illustration of the foregoing is provided by the re-regulation of state aid law and policy that has taken place as a result of the adoption of Council Regulation 994/98, Council Regulation 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty and the Commission Regulation on the application of Articles 87 and 88 of the EC Treaty to de minimis aid. More in particularly, this area has witnessed a clear transposition of Community soft law into Community legislation, not only on the basis of considerations such as effectiveness, correct and uniform application of Community law and institutional balance, but also on the basis of substantive and procedural principles, such as legal certainty, transparency and equal treatment.60 From the point of view of legal certainty, it can further also be argued that when a legislative act is already in the pipeline, the institutions must refrain from the adoption of soft law acts. In fact, the Council has already stipulated this in so many words in its Rules of Procedure. The European Convention’s Working Group on simplification has also proposed to establish this in the Constitutional Treaty, which has now indeed been laid down in Article I–32, paragraph 2 of the draft of this Treaty.61 It has also become clear that in exercising its legislative power, the legislature cannot be considered restricted by previously adopted soft law in the sense of having to comply with this; the legislature must have sufficient elbow room to draw up rules in the general interest, which as such must prevail over individual interests.62 The Court stated this in particular in the NIFPO Case in respect of Annex VII of the Hague Fisheries Resolution.63 At the national level, it has become clear that the principle of Community loyalty and sincere cooperation as established in Article 10 EC cannot as such be considered to impose a general obligation on national authorities to take account of Community soft law in their implementation of Community law. So, this goes in fact not only for the legislature, but also for the national courts and implementing authorities. 59 See 60 See 61 See

Subsection 8.3.3.5. Subsection 8.3.3.2. CONV 424/02, pp 6–7, and CONV 850/03. See also Subsection 14.4.1 on the possible meaning of this provision. 62 Section 8.4. 63 Case C–4/96 NIFPO [1998] ECR I–681.

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Only in the case of a soft law act expressing a specific duty of cooperation has it appeared that this principle imposes a duty on the national legislature to transpose and comply with it. Yet, the existence of such a specific duty of cooperation (again) depends very much on the area at issue; where there is in fact an exclusive competence of the Community or at least a Community competence (or rather obligation) to develop a common policy in a certain area, the Member States must even comply with rules which are laid down in soft law acts and to which they have not necessarily agreed.64 This was made clear by the Court in a series of cases relating to Annex VI of the ‘Hague Fisheries Resolution’.65 As such, the reasoning of the Court can also be extended to the national courts and implementing authorities. Furthermore, I have argued that when the national legislature decides to transpose soft law acts, the national competence may in fact be curtailed as regards the means by which this can be done; in particular where, out of subsidiarity and proportionality considerations, less intrusive ways and means than legislation have been prescribed by which to implement the soft law act, transposition by way of national legislation can be said to run counter to this effort and counter to the duty of Article 10 EC.66 An example in this respect is Recommendation 98/560/EC on the development of the competitiveness of the European audiovisual and information services industry, which gives ‘indicative guidelines for the implementation, at national level, of a self-regulation framework’ and aims at the establishment of national codes of conduct. 11.3.2.2

The Judicial Level

At the Community judicial level, respect for the principles of division of powers, institutional balance and sincere cooperation can be said to compel the judiciary to take at least some account of the intended meaning and scope of legislative acts.67 In this regard it has been found that when soft law acts contain an interpretation of Community law expressing in fact the intention of the legislature, as in the case of Council interpretative declarations, the ECJ is indeed willing to take them into account. In particular, it can be said to have assigned to these the role of voluntary interpretation aid.68 64 Which also distinguishes this duty from legally binding force established in the second way described in the previous subsection. See Subsection 8.5.3.3. 65 Case 61/77 Commission v Ireland [1978] ECR 417; Case 141/78 France v UK [1979] ECR 2923; Case 32/79 Commission v UK [1980] ECR 2403; Case 804/79 Commission v UK [1981] ECR 1045. 66 See Subsection 8.5.4. 67 Cf also Section 9.2. 68 See Section 9.3 and Subsection 9.4.2.1.

The Use of Community Soft Law Evaluated 471 With a view to maintaining the institutional balance, it can in my view even be argued that the Court should use these declarations as a mandatory interpretation aid, provided that certain conditions are fulfilled. In particular, the declaration must have been made on the occasion of the adoption of a legislative act that the Council has the power to adopt and only as regards that measure; a connection must have been established between the legislative act and the declaration, as an expression of the Council’s intention as to how to interpret a certain legislative provision; the terms and meaning of the declaration must be sufficiently clear and unequivocal and it must have been published; there may be no derogation from or incompatibility with the legislative act; and such a declaration may not constitute a parallel means of legislation. The only aim may be to clarify the meaning of the legislative act, and not to fill a gap in Community rules.69 The same can be said to go for other soft law acts preparing and supplementing legislative acts, when these can be taken as an expression of the intention of the legislature. In addition, the Court also refers to preparatory and steering soft law acts in order to confirm or support an interpretation already reached on the basis of binding Community law, but this is not consistent practice. As such, these acts too are then used as a voluntary interpretation aid.70 The Council Resolution of 7 May 1990 on waste policy has thus clearly been used with a view to confirming the Court’s reasoning in the Dusseldorp Case.71 Conversely, although Council Recommendation 84/635/EEC on the promotion of positive action for women was mentioned in a number of cases as being part of the applicable legal framework, the Court did not actually include it in its interpretation of Article 141 EC and Directive 76/207/EEC.72 An important implication of the use of soft law instruments as an interpretation aid is that they can influence or co-determine the lawfulness of Community and national law, and hence the rights and obligations that ensue therefrom. As such, these instruments can constitute a relevant element in the assessment of whether Community and national behaviour are in line with Community law.73 By contrast, Commission interpretative acts, and decisional ones in so far as interpretative, may interfere with the Court’s power of interpretation of Community law. This is in fact also acknowledged by the Commission, as it generally observes in these acts that its interpretation is without prejudice to the Court’s interpretation, which testifies to the 69 See Subsections 9.4.2.1 and 9.4.2.3 on these conditions. 70 Subsection 9.4.3. 71 Case C–203/96 Dusseldorp [1998] ECR I–4075. 72 See Case C–409/95 Marschall [1997] ECR I–6363, Case C–158/97

Badeck [2000] ECR I–1875, Case C–407/98 Abrahamsson [2000] ECR I–5539 and Case C–154/96 Wolfs [1998] ECR I–6173. 73 See on this Section 9.6, and on yet another implication, below Subsection 11.4.4.

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recognition and respect of the Court’s superior power in this respect. Not surprisingly, the ECJ takes this view as well; when a soft law act presents a subjective interpretation of Community law, as in the case of Commission interpretative acts or Member State declarations, the Court is not willing to take it into account.74 It then exercises a full review of Community law and considers its own interpretation obviously superior. Yet, a fairly recent exception to this unwillingness can be found in a series of cases in which the Court very clearly referred to the Commission’s Golden Share Communication in support of its own findings.75 Remarkably, the Court did so in spite of the objections raised by the EP that the communication should not be considered binding because it had not been consulted on it.76 The Court’s attitude in these cases resembles more that of the CFI, which has appeared less reticent to refer to Commission interpretative acts, for instance the De Minimis Notice, with a view to confirming its own reasoning. I have argued that there is equally no legal obligation for national courts to follow the interpretation of Community law as given by the Commission. Just as there is no hierarchical relation between the Community courts and the Commission, there is no hierarchical relation between the Commission and national courts. These are to function independently and it is precisely with a view to a proper fulfilment of their obligations as ‘Community judges’ that national courts must assess for themselves what they deem to be the correct interpretation and application of Community law. That is not to deny that these acts can have guiding effects, not only for national courts but even more so for national legislative and implementing authorities that do not know how to implement Community law, and can as such facilitate the implementation thereof. The Council Resolution of 29 May 1990 and the Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work have thus been used by British courts in order to identify what constitutes offending behaviour.77 National authorities should not, however, rely on them too readily and they should be aware that they do not provide any guarantees of acting in conformity with Community law,78 as the correct interpretation thereof is ultimately to be

74 See respectively Subsections 9.4.1 and 9.4.2.2. 75 Case C–367/98 Commission v Portugal [2002] I–4731,

para 21; Case C–483/99 Commission v France [2002] ECR I–4781, para 18; Case C–503/99 Commission v Belgium [2002] ECR I–4809, para 17. 76 See below Subsection 11.4.2. 77 See Section 9.1. 78 Also in view of the fact that these Commission acts may actually go further than being interpretative, as was established in Subsection 5.3.2.

The Use of Community Soft Law Evaluated 473 decided upon by the Community courts. So, in case of doubt, the national courts should refer preliminary questions to the ECJ.79 Yet, the judgments in the Grimaldi and Deutsche Shell Cases reveal that the Court has formulated a duty for national courts to take account of recommendations, after first ruling out that they can have direct effect. In the Grimaldi Case, the Court did so by holding in respect of the Commission Recommendation to Member States concerning the adoption of a European list of occupational diseases that: The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions. (para 18 — emphasis added)

Or in other words, this case law makes clear that something more than a voluntary interpretation aid for national courts is at issue. However, the precise scope of the duty thus imposed is still rather unclear; in particular, does it boil down to a duty of interpretation of national law consistent with Community soft law or not? Obviously, the answer to this question is also relevant for the legal protection of individuals. In fact, alongside a number of other arguments, I have considered this interest of legal protection to be a convincing argument for a restrictive reading of these judgments.80 In my view, they cannot be said to have established a duty of consistent interpretation, because that would indeed amount to admitting rights and obligations ‘by the backdoor’, also for private parties. Since soft law acts may be adopted when there is no desire to create legally enforceable rights and obligations or, yet more importantly, when there is no competence actually to do so, imposing a general duty on the national court to interpret national law in conformity with recommendations would run counter to the legal protection and in particular the legal certainty of those concerned. In my opinion, one can speak at the most of these recommendations having an indirect legal effect in the sense that they have to be used as a mandatory interpretation aid by the national courts. Although the dividing line from the duty of consistent interpretation may be considered rather thin, I am of the opinion that such a distinction is called for, if only to express that the duty imposed in respect of recommendations is less far-reaching than the duty imposed in respect of binding Community law.81 More 79 See also Subsection 9.5.4. 80 Subsection 9.5.3.2. 81 This is also clear from the

fact that the Court framed its judgments in these cases in quite different terms from its case law on interpretation consistent with directives and other

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particularly, I deem that the use of recommendations as a mandatory interpretation aid entails in essence a duty of effort, ie to take account of recommendations when they can actually contribute to the establishment of the meaning and scope of hard Community law (judicial implementation). The duty of consistent interpretation is more directed towards obtaining a certain result (remedial interpretation).82 Although this use of Community soft law as an interpretation aid can clearly also affect the legal position of individuals, it can be said to be part of the proper fulfilment of the judicial task of national courts, in particular of the effort to establish the meaning and scope of Community law or national implementing law in a case before them.83 As such, I do not consider this unacceptable from the point of view of legal certainty of those concerned. Yet, the uncertainty that still exists regarding the scope of this case law also pleads, for the time being at least, for a limited application thereof; that is, only to recommendations and not to other soft law instruments.84 11.3.2.3

The Executive Level

At the Community executive level, it is in particular the issue of selfbinding effect of Commission decisional acts that arises in areas such as competition law and state aid. By drawing up decisional acts, the Community executive, in particular the Commission, structures its implementing powers by indicating in a general way how it will apply these in individual cases. A well-known example is the De Minimis Notice concerning the application of Article 81 EC. The interest of legal protection also entails that in certain circumstances one must be able to rely on such acts, because of the expectations they have raised as to their application or as a result of the principle of equal treatment. In addition to this, also on the basis of the principle of patere legem quam ipse fecisti the Commission can be called upon to act in conformity with self-imposed general acts, limiting its discretion to apply Community law in individual cases. It has been seen that in the area of staff cases, the Community courts have not hesitated to establish quite firmly the possibility of relying on the aforementioned principles, in particular the equal treatment principle and the principle of patere legem quam ipse fecisti. They have done so for

binding Community acts, and that it refrained from referring to this case law. See further on this Subsection 9.5.3.2. 82 See Section 9.3 on 83 See Section 9.6. 84 Subsection 9.5.4.

this distinction.

The Use of Community Soft Law Evaluated 475 instance in respect of the Conclusions of the Council and the Ministers for Health of the Member States, meeting within the Council, on 18 December 1988 concerning AIDS.85 Although the Courts are still somewhat hesitant to establish a spillover effect from this case law to other areas of law, various opinions of Advocates-General point in the direction of such a spill-over effect and the CFI appears to have established such an effect at least in the area of competition law.86 Furthermore, it has not only been established that reliance on the principle of legitimate expectations may be possible in certain cases, but also that the Community courts have examined whether the Commission has taken a decision on national aid schemes that complies with the criteria it has laid down itself in guidelines and like instruments, without indicating any legal foundation whatsoever for this apparent obligation. On the basis of this case law, one could argue that the Commission must comply with the rules laid down therein out of a concern to be consistent in the policy it conducts.87 At least, one could say that this case law gives proof of the need that exists for more legal protection in this area of law.88 An example is provided by the The Netherlands v Commission Case, in which the Dutch government demanded the partial annulment of the Commission Decision on the state aid implemented by the Netherlands for 633 service stations located near the German border. Among other things, the Dutch government pleaded infringement by the Commission of its De Minimis Notice for state aid. The ECJ did not consider on what legal ground the Commission was at all bound to take a decision in conformity with this notice, but rather whether its decision violated the notice or not.89 Yet, uncertainty still remains in this respect, and in particular as to whether the scope actually given to the aforementioned principles with a view to establishing such a self-binding effect is sufficient, in particular as regards the principle of equal treatment. Even though the Commission must be able to change its decisional acts, a number of arguments plead in my view for a clearer and stronger application of these principles in this respect. To begin with, decisional acts are playing an increasingly important role in legal practice,90 which is also witnessed by the fact that the question of self-binding effect is now more frequently at issue in cases before

85 Subsection 10.4.1. 86 See Subsections 10.5.2 and 10.5.3. 87 Subsection 10.5.4. Cf in the Dutch context, van Kreveld (1983), pp 188–89. 88 As explained in Subsection 10.5.3. 89 Case C–382/99 The Netherlands v Commission [2002] ECR I–5163, discussed

10.5.4. 90 See Subsection 10.6.1 and also Hancher et al (1999), pp 13–14.

in Subsection

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the Court, and outside the area of staff law.91 Secondly, the Community courts have clearly established the competence of the Commission to adopt these acts and have even applauded its use thereof.92 At least, they are obviously convinced of the beneficial effects of decisional acts for external parties, in the sense of contributing to ensuring equal treatment and a transparent application of the law in individual cases. Thirdly, in the light of this recognition by the Courts and the fact that decisional acts are adopted precisely with a view to increasing legal certainty,93 it is only logical that one should be able to rely on them in legal proceedings against the Commission, without the latter being able to deviate from them as it sees fit. Otherwise, the legal certainty that decisional acts aim at realising is in practice only an apparent legal certainty.94 At present, it still seems rather easy for the Commission to deviate from self-imposed acts, as long as reasons for such deviation are given, without the scope of this giving reasons requirement being very clear. The starting point should be that in principle the Commission is bound by its decisional acts, until it decides to change them. Finally, if the Commission goes beyond its implementing powers in the decisional acts it adopts, an adequate remedy is provided for, as seen above in Subsection 11.3.1; if the Commission imposes new legal obligations for which it has no competence, an action for annulment can be brought against it. Furthermore, there is also the possibility of bringing an action for annulment of individual decisions taken on the basis of decisional acts. So, also from the point of view of legal protection of other concerned parties, there is in my view nothing against a reinforced scope of the principles of patere legem quam ipse fecisti, equal treatment and legitimate expectations, for those wanting to rely on them in order to compel the Commission to take decisions in accordance with its decisional acts. At the national executive level, the question of self-binding effect of decisional acts obviously does not as such arise, since it is the Commission that adopts these acts. Yet, in the area of state aid one could argue that this issue does in fact arise as regards those frameworks, guidelines and like acts that have somehow been adopted or accepted by the Member States. As explained in Subsection 6.6, however, one can then also speak of (incidental) legally binding force of these acts, which also

91 Cf

the above-mentioned The Netherlands v Commission Case and the other case law discussed in Section 10.5. 92 Subsection 7.3.4. 93 See also Subsection 5.3.3. 94 In view of the recent re-regulation of state aid law and policy, the present legal framework within which decisional instruments are used does indeed leave much to be desired in terms of transparency and legal certainty; see Subsection 8.3.3.2.

The Use of Community Soft Law Evaluated 477 entails that third parties can rely on them in court.95 Consequently, the role of general principles of law, in particular the principle of legitimate expectations, is far more important at the Community level than at the national level. Looking at the areas of both competition law and state aid, various situations have been sketched in which the question of application and enforcement of interpretative and decisional acts, adopted solely by the Commission, may arise for the national executive.96 In this context, the national executive mainly means national regulatory and/or competition authorities. The findings in this respect show that here again it is in particular as a result of a specific duty of cooperation that these authorities may have to take account of such Commission acts. This conclusion is in fact supported by the new Council Regulation on the implementation of Articles 81 and 82, which provides for a decentralised enforcement regime that will make cooperation between the Commission and the national authorities even more essential.97

11.4

IMPLICATIONS OF SOFT LAW FOR DEMOCRACY AND THE RULE OF LAW

The three categories of Community soft law identified in Section 11.2 can all be said to respond to a certain need. Preparatory and informative instruments are useful with a view to increasing the basis of support for Community action and informing the public. Interpretative and decisional acts have been regarded as an indication that the EC is becoming a mature administration or legal order.98 Formal and non-formal steering instruments are, in my opinion, a response in particular to the need of any international, even supranational organisation, to set out political beacons for future — legal and other — action, and to steer action in a less rigid way than by legislation. Given the legal effects they may have, it is more the actual use that is made of soft law instruments, and the conditions under which such instruments should be used, that may be problematic, in particular in the light of the Community’s commitment to the rule of law and democracy.99 As already established in Subsection 11.2.1, when it is clear that hard law in the clothing of soft law is being adopted, it can be concluded that the

95 See also Subsection 6.6.4. 96 See Subsection 10.6.1. 97 See Subsection 10.6.3. 98 See Subsection 5.6.3. 99 Section 3.2.

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same requirements apply as in the case of the adoption of a binding (legislative) act. Yet, it is less clear what requirements actually apply to the adoption of true soft law acts. In the following subsections, the use of soft law instruments will therefore be evaluated from the point of view of the guiding principles for legislation that were identified in Chapter 3, in particular competence (11.4.1), democratic legitimacy (11.4.2), internal division of powers (11.4.3), external division of powers (11.4.4), effectiveness (11.4.5) and transparency (11.4.6). The questions arising in relation to soft law that were also identified in Chapter 3 will be taken as starting points for this discussion. In my view, one must first deal with these questions before one can consider the extent to which soft law may contribute to enhancing the legitimacy, effectiveness and transparency of Community action. Moreover, given the heterogeneity of the phenomenon of soft law, one can not speak in general terms of soft law’s positive contributions to or detrimental effects upon these aims, without specifying the instrument.

11.4.1 The Legality of Community Soft Law: The Issue of Competence A first question that arises in the light of the indirect legal effects which Community soft law can have, is whether the principle of conferred powers also applies to the adoption of true soft law, if not in its function of guaranteeing the legality of Community action, then possibly in one of its other functions: ensuring legal protection, inter-institutional division of powers, external division of powers — between the EC and the Member States — and/or democracy.100 And if so, how is this competence to be established?101 This issue has arisen for instance in the framework of national proceedings regarding the competence of the Commission to establish the De Minimis Notice concerning the application of Article 81.102 More generally, in the area of state aid there has been repeated questioning of the Commission’s competence to adopt communications, guidelines, frameworks etc in order to establish general rules for the application of (now) Articles 87 and 88 EC.103 In this regard, it can first of all be emphasised that since the Community is explicitly founded on the principle of conferred powers, it was not the intention to endow it with a general competence to act. On

100 On these different functions, see Section 3.4. 101 Cf the questions identified in Subsection 3.4.6. 102 See Subsection 5.3.1. 103 See Subsection 8.3.3.2.

The Use of Community Soft Law Evaluated 479 the contrary, the Treaty establishes, to a greater or lesser extent, when the Community may act, by what institution, by what form or instrument and according to what procedure. Furthermore, the institutions have been given specific tasks and competences, which have been described and delimited from one another. This in itself pleads for some identification of the competence of the institutions to adopt soft law.104 It has been found more in particular that the principle of conferred powers does indeed not apply to soft law acts in its function of principle of legality, which would require the establishment of a legal basis in the Treaty or in secondary legislation as for the adoption of legally binding acts, but that it does so in one or more of its other functions. It has thus been seen that the competence to adopt Commission soft law acts has to be established in particular because of considerations of legal protection, institutional balance and democracy. In the case of Council soft law acts, it has been seen that the principle of conferred powers in its function of external division of powers is mainly at stake. To explain: as case law of the Court confirms, in Article 211(2) the Treaty drafters in so many words gave the Commission the competence to adopt recommendations. This is more or less a carte blanche, albeit that the Commission has to stay within the scope of the Treaty. I have considered that this competence fits in with the Commission’s role in the institutional system, in particular its role as the motor of European integration. This is expressed not only by its right of initiative, but in fact also by the adoption of non-binding acts that may pave the way for future Community (proposals for) legislation.105 The Commission’s competence to make use of preparatory, interpretative and decisional instruments has been found to be implied in the powers and tasks conferred upon it. As such, the use thereof can even be considered necessary if it is to properly fulfil these tasks and make full use of its powers. The Commission’s competence to adopt decisional instruments thus lies within its implementing powers, in my view making it unequivocally clear that the implied powers doctrine applies not only to substantive but also to institutional powers, which is not a generally accepted view.106 The adoption of interpretative instruments I have considered to fall within the Commission’s monitoring task; they enable it to monitor and ensure the correct implementation of Community law not only ex post and in individual cases, but also ex ante and in a more general way.107 The adoption of preparatory instruments has been seen to be part of the Commission’s exercise of its right of initiative in the 104 See 105 See 106 See 107 See

Section 7.2 for a number of other arguments pleading for this. Subsection 7.3.1.1. Subsection 7.3.4. also Subsection 7.3.4.

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decision-making process.108 As such, the applicability of the principle of conferred powers aims in this respect in particular at ensuring that the Commission acts within the boundaries of the powers and tasks assigned to it. In my opinion, the implied powers reasoning can also be applied to Council recommendations, the competence to adopt these thus being implied in the Council’s power to take decisions, laid down in Article 202(2) EC. The identification of a specific legal basis in these acts has been said to be due in particular to the concern to indicate that the action taken by the Council is within the substantive scope of Community law.109 The applicability of the principle of conferred powers to non-formal steering instruments adopted by the Council can be explained by the same concern. Yet, this is expressed in a different way; that is to say, the adopting authority — Council, Representatives of the Governments of the Member States (RGM), or both in conjunction (mixed) — makes clear the extent to which the matter at issue falls within the scope of Community law.110 To give an illustration, for a long time the fact that the EC had little or no competence in areas such as culture and health was reflected in the adoption of RGM or mixed resolutions, conclusions etc in these areas. Since the Maastricht Treaty brought these areas within the scope of the EC Treaty by providing the legal bases of respectively (now) Articles 151 and 152 EC, Council acts have been adopted. So, here the principle of conferred powers in its function of protecting the division of powers between the EC and the Member States is primarily at issue. Thus, contrary to what is often presumed, it has been found that the competence to adopt true soft law must also be established; in respect of at least a number of soft law instruments the Court has deemed it necessary to establish the competence to adopt these, where the Treaty has not provided for the explicit competence to do so. Yet, it seems to have had no difficulty in actually establishing the foundation of this competence, by having recourse to the doctrine of implied powers. By analogy, this doctrine can be said to also apply to certain soft law instruments in respect of which the Court has not yet had to rule on the issue of competence, such as Council recommendations. Is it necessary to somehow clarify these competences to adopt soft law, in the Treaty or otherwise? This question is most pressing in the case of concurring powers of the institutions, and has presented itself in particular in respect of Commission and Council recommendations and as regards the use of decisional acts in the area of state aid.

108 Subsection 7.3.3 and also below Subsection 109 Subsection 7.3.1.2. 110 See also below Subsection 11.4.4 on this.

11.4.2.1.

The Use of Community Soft Law Evaluated 481 Where the Treaty provides a specific legal basis for the adoption of Council recommendations, I have concluded that the Commission is precluded from using its general power under Article 211(2) EC, also in view of the institutional guarantees provided for by the specific legal basis. When this is the case, the Treaty provisions in themselves must be considered an expression of institutional balance.111 In my opinion, it would be quite easy to clarify this in the Treaty, by adding to the text of Article 211(2) that the Commission shall formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary, in so far as the Treaty does not reserve the adoption thereof to the Council

or similar terms.112 As regards the adoption of decisional acts by the Commission in the area of state aid, where implementing powers of the Commission possibly concur with legislative powers of the Council, the CFI has rejected the argument of infringement of institutional balance.113 Yet, the current replacement of a number of decisional acts by — both Council and (delegated) Commission — legislation in this area, has removed the doubts that existed in this respect as to the delimitation of the Commission’s and the Council’s powers. So, one can say that in certain cases the transposition of soft law into legislation may be required because of the interest of institutional balance. However, since such replacement will not always be desirable or feasible, it is advisable in my view that the next Treaty amendment operation should not only establish a clearer distinction between legislative and implementing instruments as such, but also clarify the nature of decisional instruments and the Commission’s competence to adopt these. Unfortunately, the final report of the Working Group on simplification of the European Convention does not address the topic of decisional acts, nor do the relevant provisions of the draft Constitutional Treaty, at least not explicitly.114 Yet, one might argue that the recognition of such a competence is implied in Article I–32, second paragraph, where it is held that when proposals for legislative acts are considered, the EP and the Council ‘shall refrain from adopting acts not provided for by this Article in the area in question.’ Does this mean that in all other cases, the institutions may make use of instruments not provided for by this Article, including

111 This question was dealt with in Subsection 7.3.1.1. 112 See also the limits identified above in Subsection 11.3.2.1. 113 See Subsection 7.3.4. 114 See its Articles I–32 to 36, relating to the Community legal

instruments, CONV 850/03.

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decisional ones? Such an interpretation would correspond most to current practice, but obviously run counter the purpose of clarifying the present system of Community legal instruments.115

11.4.2

Democratic Legitimacy

In considering what the use of soft law entails for the democratic legitimacy of Community action, the core issue is how its use affects the influence of citizens — or their representatives — in the Community decision-making process; or in other words, to what extent does the use of soft law detract from or contribute to democratic legitimacy? 116 Clearly, in the EC context, the role of the European Parliament regarding the adoption of soft law acts is then of particular importance. Various examples can be given of how the use of soft law may be to the detriment of the EP’s position. When the Commission cast an earlier directive proposal on an internal market for pension funds in the form of a so-called interpretative communication (see Section 11.3), it was obviously trying to circumvent the regular decision-making process, thereby of course also affecting the Parliament’s powers. Another illustration provides the adoption of the Golden Share Communication by the Commission, in respect of which the EP observed that its content cannot be seen as binding, since the Commission clearly overstretched its powers by not discussing this important item of ‘soft law’ with the Council and the European Parliament.117

There are thus two aspects to this issue. The first concerns the EP’s influence on the direction and form which Community law and policy take, in particular the choice of instrument: legislation, soft law or other? In line with this, the question also arises concerning the extent to which soft law in fact entails increased direct and informal participation of the citizen in the development of law and policy, contributing as such to democratic legitimation of the decision-making process. The second aspect concerns the EP’s influence in the adoption process of soft law acts themselves, once the choice has been made to use soft law: does this involve consultation, cooperation, co-decision or no involvement at all?

115 See in this sense Hofmann (2003), p 44. 116 See the soft law implications raised in Subsection 3.3.2. 117 European Parliament Resolution on the updating of

certain legal aspects concerning intra-EU investment, minutes of 05/04/2001-Provisional Edition. See on the Golden Share Communication also Subsection 5.3.2 and Section 9.4.

The Use of Community Soft Law Evaluated 483 11.4.2.1

Democratic Influence on the Choice of Instrument

As regards the first aspect, it has become clear that the EP is involved in the preparation of law and policy at an early stage. Thus, it is informed by means of inter-institutional and purely informative communications118 which the Commission sends to it, and consulted in the framework of the preparatory acts drawn up by the Commission, in particular Green Papers and White Papers.119 These documents not only keep the EP informed, but also enable it to react to law and policy proposals that are in the pipeline. The latter consultation documents also create more opportunity for those concerned by future Community law and policy to participate directly in the decision-making process. Furthermore, purely informative communications keep the public informed of what is happening at EC level. Action programmes also contribute to greater knowledge of the priorities of Community action and the directions in which it is heading.120 As such, they can also make the Community institutions more accountable for objectives they have not achieved by the time the programmes expire. This involvement in the pre-legislative stage through consultation creates more support for the rules eventually adopted, and as such preparatory and informative instruments can in principle be considered more a contribution than a threat to democratic legitimacy of Community action. Yet, that is not to say that their use remains without problems, and that there is no room for improvement. In particular, one may wonder whether the preparatory, consultation acts, in the way they are used at present, do not actually contribute to a pseudo-democracy. It should therefore not be accepted too readily, in my view, that this consultation process can be put on the same footing as the regular decision-making procedures (in particular the cooperation and co-decision procedures), or that it makes up for these procedures not being followed, or being followed less often. In particular, although an obligation to adopt consultation documents has been established in point 9 of the Protocol on subsidiarity and proportionality, the scope of this obligation and the modalities of the consultation process to be conducted are far from clear.121 In fact, it seems that regardless of the outcome, the Commission is still free to decide what (legislative) action to propose. Practice indeed shows that it is unclear what account the Commission actually takes of this outcome and how

118 See on these Subsections 5.2.2.2 and 5.2.2.3. 119 See respectively Subsections 5.2.1.1 and 5.2.1.2. 120 Subsection 5.2.1.3. 121 Discussed in more detail in Subsection 7.3.3.

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representative the response to the consultation process is, in terms of both quantity and quality. Furthermore, as was seen in Section 5.2, there is no consistent approach to the publication and/or notification of preparatory acts, which makes one wonder whether the existing practice is sufficient to truly involve all those concerned. The fact that the EP regularly complains about the choices made by the Commission, not only of soft law but also for instance of a regulation instead of a directive, can be taken as an indication that at least in certain cases the Commission does not take sufficient account of the views of the EP and of other parties concerned. Thus, the extent to which this consultation process provides true democratic support for the action subsequently developed by the Commission still seems fairly limited. In view of this, I deem that the consultation process as provided for by the Protocol must be improved. Its wording should be amended so as to express more clearly that there is a legal rather than a moral obligation to adopt and publish preparatory, consultation instruments, and that this adoption fits in with the Commission’s power in the decision-making process, in particular with the proper exercise of its right of initiative. This would contribute to a more consistent approach in the adoption of consultation documents, which at present is still too dependent on the act and area at issue. I also consider it more appropriate to establish this in the Treaty itself rather than in a protocol. This could be placed not only in the framework of the application of the subsidiarity and proportionality principles as established in Article 5 EC, but possibly or maybe even preferably in that of Article 211 EC, relating to the Commission’s tasks and powers, and/or that of Article 249 EC. I deem that only if such amendments are made can the use of preparatory, consultation instruments be considered a true contribution to the democratic legitimacy of Community action. Unfortunately, in the framework of the European Convention no such changes are envisaged. On the contrary, the draft protocol concerning the application of the subsidiarity and proportionality principles, to be attached to the Constitutional Treaty, makes no mention at all of the adoption of consultation documents.122 It appears that the Commission is also aware of the need for adaptations of its consultation process as, pursuant to the White Paper on European Governance, it fairly recently adopted a communication entitled ‘Towards a reinforced culture of consultation and dialogue — General principles and minimum standards for consultation of interested parties by the Commission’.123 The communication establishes inter alia 122 See the document presented by the Praesidium of the European Convention: CONV 579/03, 27 February 2003. 123 COM(2002)704 final of 11 December 2002, to be applied as from 1 January 2003. See also the proposal for this communication: COM(2002)277 final.

The Use of Community Soft Law Evaluated 485 clearer guidelines concerning when a consultation process has to be started; the time limits that apply for consultation; the representativeness of those consulted; how to ensure a consistent and transparent approach of the different departments, and also mechanisms for feedback, evaluation and review. As such, it certainly contributes to conducting a more effective and legitimate consultation process. Yet, it is in my view to be deplored that it does not deal with all the points I have raised above, and in particular that it does not propose to create a more solid legal framework for the consultation process as such. Stronger yet, the Commission states explicitly that ‘neither the general principles nor the minimum standards are legally binding’ and that an ‘over-legalistic’124 approach is to be avoided. So, for the time being at least, an informal approach is obviously preferred, in particular with a view to the need for timely delivery of policy and to avoid situations in which a Commission proposal could be challenged in the Court on the grounds of alleged lack of consultation of interested parties, as the Commission admits in the communication.125 In the light of the above observations, I am also of the opinion that there are grounds to reconsider and extend the scope given to the requirement to state reasons, so as to include at least a limited right of participation.126 That is to say, this requirement should be understood to also impose an obligation on the Commission to account for the follow-up given to the outcome of the consultation process, and in particular why it has not complied with calls for legislation that may have been made.127 In my view, the recognition of such a giving reasons requirement — in its dialogue dimension — is a logical consequence of holding the consultation process; if the Commission were not to account for the choices made, the consultation process would be a futile exercise that could hardly be considered a contribution to increasing the legitimacy of Community action. The foregoing is not to say that there are no adequate means already available to the EP to secure its role in the decision-making process, and as such also in the event that it deems the Commission has not taken sufficient account of the outcome of the consultation process and in particular of its view that legislation is required. These means include firstly its right to request the Commission to submit certain proposals for legislation, established in Article 192 EC. Secondly, if the Commission does not

124 Respectively p 15 and p 10. 125 At p 10. 126 See the questions raised in Subsections 3.6.3.2 and 127 To some extent the Commission can be said to do

3.6.3.5. so already by publishing inter-institutional communications and purely informative communications, concerning specifically the follow-up of Green Papers and White Papers. See Subsections 5.2.2.2 and 5.2.2.3.

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Summary, Conclusions and Recommendations

comply with this request, the EP can decide to bring an action against the Commission for failure to act, as provided for by Article 232 EC. Such an action can function as a control mechanism in the sense that when an institution possibly neglects its task in the decision-making process, whether deliberately or not and whether for reasons of subsidiarity and proportionality or not, the other institutions can call it to account for this before the Court of Justice.128 One could consider it a shortcoming that these means, in particular the action for failure to act, are not at the disposal of third parties such as individuals and companies. This is because, like Article 230 EC, Article 232 EC does not consider admissible their appeals against Community acts of a (truly) legislative, general nature, but only those against acts which ‘the Community has failed to address to that person’. However, in my view, opening up this possibility would impinge too greatly on, in particular, the Commission’s powers — and discretion — in the decision-making process. Rather, I consider that the EP should — be urged to — make more active use of the means provided for, when the Commission’s action is deemed insufficient. 11.4.2.2

Democratic Influence in the Adoption Process of Soft Law Acts

Only in the case of Council recommendations does it appear that, as a general rule, the EP is involved in the adoption process. Then, the decision-making procedure that was followed is specified in the recommendation itself, in conformity with the legal basis on which the recommendation was based. In most instances, therefore, it is clear that the Council has acted on the basis of a proposal or draft recommendation of the Commission, generally followed by the opinion of the EP and often also that of the ESC and occasionally of the CoR, which boils down to applying the consultation procedure. In some recommendations, such as Recommendation 98/561/EC on European cooperation in quality assurance in higher education, even the cooperation procedure of (now) Article 252 EC has been declared applicable and followed. I have explained that the Council acts in this way because it lacks a general competence to adopt recommendations, and has been attributed only specific powers to adopt them in separate Treaty provisions; it acts in compliance with this. Furthermore, the Council also appears to take account of views expressed by outside parties, although not in any consistent way. As such, Council recommendations can be said to provide far more guarantees from the point of view of democratic legitimation than Commission recommendations.129 128 This issue has been dealt with in Subsection 8.3.3.3. 129 See in particular Subsections 5.4.4.3 and 7.3.1.2.

The Use of Community Soft Law Evaluated 487 Commission recommendations are not adopted according to particular decision-making procedures, which is probably connected with the fact that they are adopted on the basis of the rather general power provided for by Article 211 second indent, which does not prescribe any involvement of the EP.130 Although the recommendations may be drafted at the instigation of another EC institution or organ, calling upon the Commission to take certain action, the outside involvement in the determination of the rules actually laid down is thus limited to consultations that may have taken place in this respect. Non-formal steering instruments, discussed in Section 5.5 and including in particular Council conclusions, declarations, resolutions and codes of conduct, generally contain very few indications as to their legal basis and the adoption process that has been followed. In the case of resolutions, the EP has actually complained about its non-involvement. Codes of conduct are sometimes adopted pursuant to a proposal of the Commission, or at the instigation of the EP or the Member States. Occasionally, consultations take place with a view to the preparation of such a code.131 Interpretative acts are adopted very much on the Commission’s own initiative, with no specific outside involvement. The above example of the Golden Share Communication confirms that this also holds true with respect to consultation of the European Parliament. As regards decisional acts, the practice is increasingly that the Commission first adopts and publishes a draft version thereof. These drafts are drawn up on the basis of developments that have taken place in legislation, case law and (changed) policy views, and interested parties are invited to comment on these draft versions. Both the draft versions and the outcome of the consultation process are regularly published. Yet, it has remained unclear whether such a consultation process is obligatory, whether the period for reaction is sufficient and what account the Commission actually takes of the observations made by interested parties.132 Likewise, preparatory acts are not adopted ‘out of the blue’, although there is no consistent involvement of the EP or outside parties. This is not surprising, however, given their consultative purpose as such. Problems that thus remain in respect of the adoption of Commission recommendations, non-formal steering instruments and decisional instruments are that no general involvement of the EP is provided for and that the approach to consultation in a broader sense is not uniform or consistent, or at least is unclear as regards its modalities. So, the conclusion is 130 See Subsections 5.4.3.3 and 7.3.1.1. 131 Subsection 5.5.6. 132 See Subsection 5.3.2 regarding interpretative

decisional acts.

acts, and Subsections 5.3.3 regarding

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Summary, Conclusions and Recommendations

again valid here that there is no clarity as to when consultations take place, what account is taken of the outcome thereof and whether all the interests involved and views expressed are equally balanced. As a result, the question thus also remains whether the consultation process that is conducted is sufficient, in particular whether it provides — informal — democratic guarantees equal to those resulting from the formal decisionmaking process, in which the involvement of the EP is ensured. The foregoing does not, however, as one might be tempted to think, lead to the conclusion that it is desirable to formalise the adoption process, to the extent of providing for the involvement of the EP in the adoption of all these soft law instruments. The interest of democratic legitimation is actually more pressing in the case of the steering instruments fulfilling the para-law function, than in the case of the steering instruments not establishing any (new) rules of conduct and that of the interpretative and decisional instruments, which, in principle at least, also do not add new rules to existing Community law. So, as regards the latter types of instruments I deem that the non-involvement of the EP does not normally present a threat to democratic legitimacy of Community action.133 Yet, as regards the formal and non-formal steering instruments functioning as an alternative to legislation, formalisation of the adoption process in the above sense would cause friction between two different interests; on the one hand, consultation of the EP would at least provide for some democratic input and legitimation, while on the other it might for instance run counter to the interest of flexibility of decision-making, which may be the very reason underlying the choice of such instruments. With a view to resolving this friction, a proper intermediate solution would in my opinion be that consultation of the EP is provided for as regards Commission recommendations, as it is in the case of Council recommendations. In my view, such consultation is justified because the recommendation is a formal Community instrument, which has been found in most cases to fulfil the para-law function and occasionally to go beyond being merely of a recommendatory nature, as will be seen in the next section. In the case of non-formal steering instruments, the interest of flexibility may be given priority.134 11.4.3

Internal Division of Powers

The preceding two subsections have in fact already touched on the question as to how the use of soft law affects the internal division of powers,

133 But see also below Subsection 11.4.3. 134 This view also seems to be implied in

cation. See CONV 424/02, p 6.

the final report of the Working Group on simplifi-

The Use of Community Soft Law Evaluated 489 and in particular the institutional balance struck between the institutions. Considering this issue from the viewpoint of subsidiarity and proportionality, to what extent do these principles function as a cover for not submitting a proposal for legislation whereas there may be a need for this, and as such influence or even distort the institutional balance?135 Does the use of soft law entail an unacceptable bypassing of the competences of other institutions in the decision-making process? It is thus possible that the institutional balance can be infringed not only through the choice of instrument as such, but also through the use of soft law instruments as a means of parallel legislation. The above-mentioned Commission Pension Funds Communication is a clear example of such a piece of parallel legislation, whose adoption can be said to have upset the institutional balance by circumventing the regular decision-making process. Points 1, 2 and 9 of the Protocol on the application of the subsidiarity and proportionality principles confirm that all institutions must apply these principles. Importantly, the Protocol presents institutional balance as a limit to the use of the principles of subsidiarity and proportionality. So, from this viewpoint too, it is only logical to involve all the institutions that play a role in the decision-making process at the earliest possible stage and to take effective account of their views on the forms and instruments in which Community law and policy are to be cast. Moreover, interinstitutional cooperation has become more of a necessity during the last decade, in particular in view of the increased role of the EP in the decision-making process. Inter-institutional cooperation is now also considered implied in the duty of cooperation and Community loyalty as laid down in Article 10 EC; this is expressed not only in the Court’s case law but also in the declaration re Article 10 EC, attached to the Nice Treaty.136 In my opinion, only when the Commission does not take due account of the EP’s and/or the Council’s view that there is indeed a need or desire for legislation, which has possibly been further established in an action programme, does the Commission infringe the institutional balance if it confines itself to adopting soft law subsequent to this consultation process, without giving a satisfactory statement of reasons for this choice of instrument.137 In addition to the observations made above in Subsection 11.4.2.1, the EP can request the Commission to submit a proposal for legislation not only when it deems Commission soft law insufficient action, but also Council soft law. Similarly, on the basis of Article 208 EC the Council can request the Commission to put forward such a proposal. Clearly, in the

135 See Section 3.5 and Subsection 3.6.1. 136 See Subsections 3.4.4, 6.7.2 and 7.3.2.2. 137 Subsection 8.3.3.2.

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Summary, Conclusions and Recommendations

case of the Council adopting soft law, the Commission can always decide to submit a proposal for legislation whenever it deems this necessary. Furthermore, as also observed in Subsection 11.4.2.1, an Article 232 action for failure to act (ie to adopt legislation) can be brought by an institution that deems it has been bypassed in the decision-making process as a result of the Commission or the Council choosing soft law. As regards possible abuse of soft law, examples have been given of in particular Commission acts that were soft in form, but hard in substance, in that they tried to impose new legal obligations. Such a danger exists in particular when there is in fact a Community competence for legislation, but it is not used because of difficulties in reaching agreement (eg the tax law area). Such acts have been found to be a threat to the institutional balance, to the extent that they usually lack a legal basis providing for the adoption of such obligations and in particular for the competence of the institution in question to impose these. As explained above, the substantive approach taken by the Court to this kind of acts allows for their annulment, and indeed the Court has appeared very willing to punish unlawful behaviour of the Commission in this respect. I deem this to be an adequate remedy against the misuse of soft law instruments; moreover, it is always open to the EC institutions because of their locus standi.138 Although a number of adequate legal means are thus available to prevent the institutions from unacceptably bypassing one another’s competences in the decision-making process, one may wonder whether these are still sufficient when increasing recourse is had to instruments other than legislation. So, it could on the one hand be argued that the EP should make more use of these means to secure its position in decision-making and in particular of the possibilities to bring an action for annulment or for failure to act. On the other hand, bringing such actions can also be said to be a rather complex and drastic means to protect this position, and moreover difficult to reconcile with the spirit of inter-institutional cooperation. This situation could be taken as an argument for the introduction of a (limited) right of initiative of the EP, providing a stronger means to secure the EP’s power in the decision-making process than a mere request addressed to the Commission, and a less harsh means than initiating legal proceedings. Furthermore, also from the viewpoint of institutional balance it is necessary to carry through the amendments pleaded for in Subsection 11.4.2.1 regarding the — modalities of the — consultation process and the giving reasons requirement. The latter should at least make the

138 See in particular the case law discussed in Section 6.5 and the examples given in Subsection 5.4.3.

The Use of Community Soft Law Evaluated 491 Commission account for why it does not deem legislation necessary while the EP and/or the Council take the opposite viewpoint. In particular when the Commission has not taken note of the need for legislation expressed by the European Parliament, without sufficiently giving reasons for this, I consider that the Parliament should be able to submit a proposal for legislation itself. The recognition of such a right could also then be seen as a concretisation of the duty of inter-institutional cooperation now covered by the Article 10 obligation, in particular as a kind of sanction for non-compliance with this obligation. As such, I also deem it advisable to reformulate Article 10 EC, so as to express explicitly what is already provided for in the case law and the (non-binding) declaration re Article 10.

11.4.4

External Division of Powers

From the Member States’ perspective, the core question entailed by the use of soft law is to what extent Community soft law possibly encroaches upon national powers, in being used to enter into spheres or areas that are still within national competence, and with a view to progressively bringing these within Community competence.139 With regard to this, one can begin by observing that the preparatory and informative instruments adopted by the Commission also contribute to the early involvement of national authorities in the Community decision-making process. These instruments enable national parliaments and governments, including local and regional ones, and other state organs to anticipate Community law and policy and to exercise influence on the development thereof. As such, they thus also allow national authorities to assess whether the proposed Community action remains within the limits of the powers conferred upon the Community. In certain cases, steering soft law acts, of both the Commission and the Council, can be considered a first step in the harmonisation process, intended to create or increase the support for future Community legislation and to determine the possible contents thereof.140 Just one illustration of this is Commission Recommendation 87/62/EEC on monitoring and controlling large exposures of credit institutions, which was followed by Directive 92/121/EEC concerning the same matter. This may occur when a legal basis for legislation is in fact already present in the Treaty but is not being used, possibly because no agreement can

139 Subsections 3.4.3 and 3.4.6. 140 See Subsections 5.4.3.2 and

5.4.4.2.

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Summary, Conclusions and Recommendations

be reached in the Council. In that event, soft law may function as a ‘springboard’ for making use of the legislative powers already conferred upon the EC.141 The steering acts and the experience gained with the rules laid down therein may also serve as an incentive for the Member States to actually confer new legislative powers upon the EC. Recommendations and codes of conduct for instance may be adopted as an alternative to legislation in areas in which a specific Community legal basis for legislation is lacking. It has been seen that the use of soft law in such areas contributed to the later use of general legal bases (in particular Article 308 EC) and also to the creation of specific legal bases in the EC Treaty for the adoption of legislation, regarding for example consumer protection. So, steering soft law acts can certainly contribute to progressively bringing national areas of competence within the Community sphere of competence. Yet, an important difference has been observed between the Commission’s and the Council’s way of proceeding. In particular, I consider that the threat that soft law may bring matters that have been left to the Member States into the Community sphere of competence in a rather uncontrolled way is greater in the case of Commission soft law than that of Council soft law. Not only from the viewpoint of external division of powers, but also from those of the internal division of powers and democratic legitimacy, it is thus important to note that the Commission may use recommendations, and also other instruments such as codes and communications, as a means by which it tries to impose obligations which are not in fact entailed in the underlying (binding) Community law, without being competent to do so.142 Its recommendations in particular may be drafted in a way that resembles legislative acts, contain rather mandatory wording and aim at the harmonisation of legislation, without indicating a legal basis for this.143 By contrast, the Council has been seen to proceed in a rather careful way in its adoption of steering soft law acts. As regards Council recommendations, it has thus become clear that the Council takes great care to indicate a legal basis in the Treaty, thereby underlining that their adoption falls within the scope thereof. In adopting non-formal steering acts, the Member States also take great care in assessing whether a matter covered by such an act falls within or outside the scope of Community law.144 This

141 See Senden and Prechal (2001), p 194. 142 The most flagrant example is the Pension

Funds Communication at issue in Case C–57/95 France v Commission [1997] ECR I–1627 and already mentioned several times in the preceding sections. See also Section 6.5 on this. 143 See Subsection 5.4.3. 144 See in particular Subsection 5.5.1 and Subsection 7.3.2.2.

The Use of Community Soft Law Evaluated 493 is clearly reflected in the chosen author of the adopted act. When it is clear that the contents of for instance a code of conduct or a resolution fall within the scope of the EC Treaty, it will be the Council that adopts it. If a matter is only partly covered by Community powers and partly (still) lies within national competence, the Council and the Representatives of the Governments of the Member States will adopt the act jointly. If the matter lies completely within national competence, it will be adopted solely by the latter. As such, the principle of conferred powers has been found to apply also to the adoption of non-formal steering instruments, in its function of protecting the division of powers between the EC and the Member States. Although the Member States can thus be said to largely control the extent to which soft law contributes to bringing national areas of competence within the scope of Community law, it is interesting to see that the way in which the Court uses soft law as a standard for interpretation may contribute to bringing certain matters within the scope of Community law, where Community powers have in fact been contested or at least were unclear.145 In particular, it has been observed that the Court’s use of Community soft law as an interpretation aid may contribute to an actual broadening of the scope of the Treaty and to the establishment of the existence of a Community competence as such. This has occurred for instance in the area of education, pursuant to the Gravier Case, in which the Court argued that access to and participation in vocational training courses ‘are not unconnected to Community law’. It did so making reference to Council guidelines and resolutions that had been adopted concerning this issue.146 Soft law can thus be said to provide a standard, alongside others, for the Court’s determination of the scope of Community competences, and as such it may indeed be a cause of encroachment on national competences. The developments that have taken place within the context of the Cassis de Dijon Case are also illustrative of the effect that the Court’s case law in conjunction with soft law acts may have on the development of Community law. In this case, the Commission put forward a quite revolutionary interpretation of (ex) Article 30 EC, which the Court in fact upheld in its judgment. Subsequently the Commission adopted its ‘Cassis de Dijon Communication’ and developed this policy line further in its White Paper on the Internal Market, which was then reflected in the Single European Act.147

145 See Section 9.6. 146 Case 293/83 Gravier [1985] ECR 593. 147 See Subsection 5.3.2 on this and on another

Share Communication.

example in this regard, relating to the Golden

494 11.4.5

Summary, Conclusions and Recommendations Uniformising or Differentiating Effects?

In Subsection 3.6.2.2, the question was posed concerning the extent to which Community soft law contributes to the effectiveness of Community action, given the different functions it actually fulfils. In particular, to what extent does it have the effect of increasing uniformity or indeed differentiation, and how far can it be considered effective at all, given its non legally binding nature? Does the growing differentiation of the Community legal instruments also lead to differentiating effects as regards the implementation of Community law, affecting as such the effectiveness of Community action?148 The answer to these questions depends very much on the type of instrument that is at issue. Starting with the preparatory and informative instruments, the findings in Chapter 5 show that these may contribute to the uniform application of Community law, in the sense that the greater the involvement of national authorities and interested parties in the development of Community law and policy at an early (consultation) stage, and hence the greater the awareness of Community action that is in the pipeline, the more support can be created for that action. As such, this may also be beneficial for its actual implementation at the national level, at least by the national legislature. So, also from this perspective the improvement of the modalities of the consultation process, as discussed above in Subsection 11.4.2.1, is an important issue. As regards interpretative and decisional instruments, the findings in Section 5.3 demonstrate that these are adopted precisely with a view to ensuring the uniform application of Community law and to increasing legal certainty more in general. So, they should in fact counteract any differentiation in the application of Community law. Whether in the present circumstances these aims are being realised in practice is still open to doubt. Firstly, in certain cases the Commission has made questionable use of interpretative instruments, which may lead to confusion rather than to uniform application and legal certainty.149 In order to be effective, the Commission should at least confine itself as far as possible to the Court’s case law, without adding any subjective conclusions thereto. That it does not always do so is illustrated by the Communication on the consequences of the Kalanke judgment, in which it stated that the Court had considered possible positive action regarding the underrepresented sex, whereas the Court’s considerations clearly concerned only positive action regarding women. Secondly, in some cases it has in fact been

148 The

findings to be presented here have to some extent already been set out in Senden and Prechal (2001). 149 See Section 6.5 for examples.

The Use of Community Soft Law Evaluated 495 acknowledged that decisional instruments may fall short in realising their aims; in the area of state aid, the ‘transposition’ of guidelines and like instruments has thus been carried out precisely with a view to increasing legal certainty, effectiveness and transparency. Thirdly, their effectiveness also depends on the scope of the recognition of self-binding effect to these acts. As argued above in Subsection 11.3.2.3, this recognition should in my opinion be reinforced, with a view to truly realising legal certainty. The findings in Sections 5.4 and 5.5 make clear that when steering soft law acts, both formal and non-formal, fulfil the para-law function and are thus used as alternatives to legislation, they may arguably lead to differentiating effects; instead of using instruments which establish rules that are binding on their addressees, instruments are used which generally require merely voluntary implementation and may have only certain indirect legal effects. Furthermore, the actual implementation of such instruments is likely to result in even greater differentiation than in the case of more orthodox legislation, such as directives, since their non legally binding nature allows the Member States to pick and choose which rules they will comply with and whether they want to comply with them at all. When there is (as yet) no desire or need for legislation, this may not be considered problematic, but it does become problematic when it is preferable that all actors should be bound as regards a certain matter and this situation will not be fully achieved. Yet, when steering instruments are adopted as a temporary alternative to legislation and thus are used as a kind of ‘springboard’ for the development of future legislation, they may actually have certain uniformising effects in the end. That is to say, they may prepare the ground for legislation and actually facilitate the adoption thereof. The same goes for steering acts that fulfil the pre-law function.

11.4.6

Obscuring or Contributing to Transparency?

A final question to be addressed concerns the extent to which the use of soft law can actually be considered reconcilable with the effort to enhance the transparency of Community action. In Subsection 3.6.3.1, transparency was linked first of all to the openness and accessibility of Community action, not only in the sense that one has to have access to it but also that it is clear, simple and understandable. As such, this includes the aspects of its publication and notification and of the quantity and quality of Community action. Secondly, in Subsection 3.6.3.4, the principle of transparency was also linked to the principle of legal certainty, in that it is required that Community legislation and every measure having legal effects be predictable or foreseeable. Rules imposed on individuals

496

Summary, Conclusions and Recommendations

must be clear and precise and must be drawn to the attention of those concerned in such a way that they may know without ambiguity what rights and obligations ensue therefrom. The previous sections have already touched upon a number of issues that the use of Community soft law raises from the point of view of legal certainty. The emphasis here will lie on those aspects that have not yet been discussed. A general observation regarding the publication and notification of Community soft law acts is that increasing use is being made of the Internet for this purpose. In the recent Communication from the Commission on a reinforced culture of consultation and dialogue, the Commission proposes to publish its open public consultations on the Internet and to establish a single access point with a view to this.150 As regards official or more traditional channels of publication, the findings show that preparatory and (purely) informative acts are mainly published as COM documents. Interpretative acts are to be found in the C-series of the Official Journal, whereas decisional ones may be published as COM documents or in the C-series of the OJ and sometimes may also be notified. Commission and Council recommendations are mostly published in the L-series of the OJ, probably because they are formal Community instruments. Non-formal steering instruments, such as resolutions, may be published in the C-series of the OJ, and occasionally in the L-series, in particular if linked to a legislative act. However, they are not always published. It appears that much depends on the act at issue, and a consistent approach seems to be lacking as regards the soft law instruments not provided for by the Treaty. Consequently, one may wonder whether those affected by a soft law act are always informed and hence are aware of its existence. As I argued above in Subsection 11.3.1, publication or notification must be considered a prerequisite for the (lawful) establishment of the legally binding force of a — presumed — soft law act. This is also important from the viewpoint of securing legal certainty for those concerned. In fact, in the case of true soft law acts as well, it can be argued that legal certainty requires that they be published and/or notified, in view of the indirect legal effects they may have.151 The issue of quantity and quality of Community action is actually also closely linked to that of legal certainty. From the point of view of legal certainty, it is thus of major concern that the efforts which are being undertaken to improve the quality of Community legislation should also be carried through in respect of at least certain Community soft law

150 COM(2002)704 final, p 20. 151 As regards interpretative Council

been established in so many words.

declarations, discussed in Subsection 9.4.2.1, this has

The Use of Community Soft Law Evaluated 497 instruments. It is thus of little use to draw up more framework directives, which are less detailed and are drafted in closer conformity with quality guidelines securing internal consistency etc, if in the formulation of interpretative or decisional acts accompanying these directives no attention is given to this drafting aspect. So, in order to improve the quality of Community legislation, and along with this the legal certainty of those concerned by it, these efforts must in my opinion be extended to the accompanying instruments as well. This is not, however, the case at present.152 Last but not least, the survey in Chapter 5 has shown that there is a great variety of Community soft law instruments and many differences between them. Although it has been possible to classify these instruments into four main categories, their proliferation forms a general point of concern. Firstly, the heterogeneity of the phenomenon of Community soft law obscures the system of Community legal instruments and the decisions actually taken. It is also unclear how their use fits in with the formal, legally binding Community instruments. Secondly, and in line with the foregoing, the legal status of the instruments at issue is a grey area for many, not only those actually concerned by them but also legal practitioners. The discussion above in Section 11.3 also indicates the questions that remain in this respect. The uncertainty about the rights and duties these instruments may actually entail, can hardly be seen as a contribution to legal certainty. One may thus wonder whether the use of Community soft law instruments should not be rationalised and/or clarified in some way. In addition to the observations already made in this regard in previous subsections of this chapter,153 I deem that their use should at least be rationalised in the sense that the number of different instruments, or at least the number of denominations for one and the same kind of act, should be limited. If not in the Treaty itself, this could be done for instance in the Rules of Procedure of both the Commission and the Council. Furthermore, I deem that this is an issue which deserves more attention in the ongoing IGC. In particular, the discussion on the introduction of a distinction between (binding) legislative and implementing instruments and the introduction of a hierarchy of instruments

152 See Subsection 153 See inter alia

5.6.3 on this. Subsection 11.2.2 as regards recommendations, Subsection 11.4.1 as regards decisional instruments and Subsection 11.4.2.1 as regards preparatory instruments. With respect to non-formal steering instruments, I argued above in Subsection 11.3.2.1 that regulating these in the Treaty would run counter to the interest of flexibility that the use of soft law instruments may precisely aim at. Yet, in making use of such instruments, the institutions should be aware of the fact that there is not unlimited freedom regarding their adoption.

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Summary, Conclusions and Recommendations

should also include the position that decisional instruments are to occupy within this framework. Arguably, if these last instruments are truly to contribute to legal certainty and uniform application, their possible legal (self-binding) effects should be established as well. 154 Unfortunately, up to now, these instruments do not seem to have attracted any attention whatsoever in that debate. 155 The discussion seems to be confined in fact to those instruments that I have classified in this study as formal and non-formal steering instruments. 11.5

RECOMMENDATIONS

The summary and conclusions presented in the preceding sections were already accompanied by a number of proposals for change with a view to soft law being used in a manner that actually contributes to the effectiveness, legitimacy and transparency of Community action. In this final section, these will be brought together, along with a number of other recommendations that can be made on the basis of the examination conducted in this book. Some of these are of an institutional or constitutional nature, while others are of a more procedural nature. These recommendations have also been formulated against the background of the developments that have taken place within the European Convention and with a view to the prospective amendments of the EC Treaty, in particular as regards the simplification and reclassification of the Community legal instruments. In my view, the debate on this issue occurring within the framework of the European Convention does not do justice to reality, as the proposed reduction from fifteen instruments to six, now established in Article I-32 of the draft Constitutional Treaty, does not present the full picture. In particular, it fails to take account of the fact that in practice the Community institutions make use of a far broader range of (soft law) instruments, which also affect the legal position of EU citizens and companies. The discussions and reclassification proposals have been limited more or less to the instruments that are already regulated in some way in the EC Treaty and in the third pillar of the TEU,156 and only very indirectly does the new draft Treaty touch upon soft law instruments.157 I see it as a missed opportunity that the European Convention has not put the issue of soft law instruments more 154 Cf

eg Article 4:84 of the Dutch General Administrative Act, which establishes the binding force of administrative rules. See also Subsection 10.3.1. 155 Ibid note 114. 156 Leaving aside the discussions that have taken place on the method of open coordination and the question whether this should be regulated in the Treaty or not. 157 According to its Article I–32(2), the institutions must refrain from the adoption of acts not provided for by this Article when a legislative act is already in the pipeline. See also Subsection 11.3.2.1.

The Use of Community Soft Law Evaluated 499 fundamentally on the agenda. My reasons for holding this view will become clear from the following recommendations. I Rationalisation of soft law instruments While not denying the usefulness of the different categories of soft law instruments that have been identified, I consider that, in particular with a view to increasing transparency and legal certainty, limits to the proliferation of such instruments should be set. Preferably, only one single instrument should be used for the establishment of a certain type of rules, and the denomination of this instrument should make clear what kind of act is at issue. Or in other words, instruments should be clearly linked to a particular purpose or function. Different denominations for one and the same kind of act should therefore be avoided. For instance, the establishment of interpretative and/or decisional rules in notices, communications, guidelines, codes, frameworks etc is confusing. The same is true for the many different manifestations of the communication: purely informative, inter-institutional, individual, interpretative and decisional. So, not only should the number of instruments as such be reduced, but also the different uses of the same instrument. II More consistent use of soft law instruments This proposed rationalisation of Community soft law instruments would in itself contribute to more consistent use of soft law instruments by the Community institutions. However, in the event that such rationalisation does not come about, the Community institutions should themselves take care to make more consistent use of soft law instruments. It is thus often rather unclear why the Commission and the Council have recourse to a particular instrument and why different instruments are chosen for the establishment of similar rules; the institutions should use the same instrument for the same or similar situations. For example, in the area of competition law the Commission uses primarily communications and notices (even interchangeably for the establishment of the same rules, such as the de minimis rules concerning the application of Article 81 EC), whereas in the area of state aid it uses guidelines, frameworks and codes. The Community courts should also take a more conscientious, consistent and coordinated approach to the role they attribute to soft law in the interpretation and application of Community law. It has been seen in particular that overall the ECJ takes a more restrictive standpoint than the CFI, that the conditions on the basis of which the Community courts are willing to take account of soft law instruments are rather unclear, and that in some cases they take account of them while in others they do not for fairly obscure reasons. For instance, in a number of cases the ECJ has been willing to refer to the Commission Golden Share Communication in

500

Summary, Conclusions and Recommendations

support of its own reasoning, but in other cases it has refrained from referring to the Commission Recommendation on positive action, albeit mentioning it as part of the applicable legal framework. III Classification and (re)definition of certain soft law instruments Further to the above, I also deem that the use of a number of soft law instruments should be (better) ‘regulated’. To begin with, it is to be deplored that in the present drafting of Article I–32 of the Constitutional Treaty no effort has been made to further define the recommendation and the opinion, and the description already contained in Article 249 EC has simply been restated. In my view, the recommendation should also be defined in terms of its general and external nature, and its — more limited — purpose of coordination of national policies and objectives should be expressed as well. As regards the opinion, its individual nature in particular should be expressed. This further definition could be brought about either by amending Article 249 or by introducing it in the proposed Article I–32.158 Secondly, I am of the opinion that there should be clearer regulation of the use of preparatory instruments, which at present is ‘hidden’ in the Protocol on subsidiarity and proportionality.159 It should be stipulated that there is a legal obligation to adopt and publish preparatory, consultation acts and that this fits in with the proper exercise of the Commission’s right of initiative. This would contribute to more regular use thereof, it being at present still too dependent on the act and area at issue. I also consider it more appropriate to establish this in the Treaty itself rather than in a protocol; possibly in the framework of the application of the subsidiarity and proportionality principles as established in Article 5 EC, but preferably in the framework of the source catalogue of either Article 249 EC or the proposed Article I–32 of the Constitutional Treaty, or even of Article 211 EC relating to the Commission’s tasks and powers. I deem that only if such amendments are made can the use of preparatory, consultation instruments constitute a true contribution to the democratic legitimacy of Community action. In view of this, I consider that the present developments regarding the consultation process fall short and that, in this respect at least, the new draft Protocol concerning the application of the subsidiarity and proportionality principles actually constitutes a backward step, since it no longer refers in any way at all to the publication of consultation documents.160 Thirdly, at the next Treaty amendment not only should a clearer distinction between legislative and implementing instruments be established, but also the nature and legal effect of decisional instruments 158 See 159 See 160 See

also Subsection 11.2.2. also above Subsection 11.4.2.1. Subsection 11.4.2.1 above and CONV 850/03, 18 July 2003.

The Use of Community Soft Law Evaluated 501 should be specified, and the Commission’s competence to adopt these clarified. Once again, this could be done within the framework of Article 249 EC, Article 211 EC and/or Article I-32 of the Constitutional Treaty. The re-regulation that has taken place in the area of state aid, ie the transposition of a number of soft law acts into hard legislation, illustrates the need for greater clarity in this respect. As regards non-formal steering instruments, I consider that the interest of flexibility of the decision-making process may be given priority over the interest of democratic legitimation, which is served by formalisation of the adoption process. This is the more true as regards their regulation in the Treaty as such.161 I therefore deem the proposals made in this regard by the European Convention to be sufficient.162 IV Clarification of the legal effect of Community soft law It has been observed that in particular the indirect legal effects that Community soft law may have at the national level are rather obscure: whether or not there is a duty to transpose soft law into national law, whether soft law constitutes a voluntary or mandatory interpretation aid and whether national authorities should take soft law acts into account when applying Community law in a concrete case. In certain cases and under certain conditions, a specific duty of cooperation may thus be imposed on the Member States or national authorities, as a result of which they actually have to implement a particular soft law act. The confusion that may arise in this regard is illustrated by the different legal consequences that the Court has attributed to Annex VI and Annex VII of one and the same resolution, ie the Hague Fisheries Resolution.163 It is advisable that the (lack of) legal effect be specified more clearly in the acts themselves, especially where the legal status of a particular instrument is not clarified in primary Community law. V Procedural changes with a view to increasing legitimacy and transparency With a view to the preservation of the institutional balance, I have already suggested that to the text of Article 211(2) EC should be added that the Commission shall formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary, in so far as the Treaty does not reserve the adoption thereof to the Council

or similar terms.164 161 See 162 See 163 See 164 See

Subsection 11.4.2.2. footnote 156 above. Case C–4/96 NIFPO [1998] ECR I–681, discussed at length in Subsection 8.4.1. Subsection 11.4.1 above.

502

Summary, Conclusions and Recommendations

Another proposal I have made from the point of view of increasing democratic legitimation is that consultation of the European Parliament should be provided for regarding Commission recommendations, as actually occurs in the case of Council recommendations. Such consultation is in particular called for because the recommendation is a formal Community instrument, and has been found in most cases to fulfil the para-law function and occasionally to go beyond being merely of a recommendatory nature.165 A number of recommendations can also be made regarding the — continuous — application of the subsidiarity and proportionality test. This application must ensure that the Community institutions are involved in the decision-making process as early as possible, which means that they should also be consulted as regards the choice of instrument. In addition, the Commission should account for the choice of instrument at the time of its adoption. In my view, this also entails the recognition of the dialogue dimension of the giving reasons requirement; in the act itself the Commission should account for the follow-up it has given to the outcome of the consultation process and, where appropriate, also account for why it has not complied with calls for legislation that have been made. Furthermore, even if there is not to be a general consultation right of the EP regarding the adoption of all soft law instruments, the Commission and the Council should publish all the soft law acts they adopt and communicate them to the EP, so that the latter has the opportunity to check that no abuse is being made of soft law and that the legislative process is not being unlawfully bypassed. Finally, the application of the subsidiarity and proportionality principles also requires that after a certain time the adopted Community acts be evaluated. As regards soft law acts, this entails continuous evaluation not only of their necessity as such and of whether their contents should be adjusted, but also of whether they should not perhaps be transposed into a hard law act.166

165 See Subsection 11.4.3 above. 166 Cf the re-regulation that has

taken place in the area of state aid.

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Index Action programmes 128–132 areas 129 competence to adopt 310–311 formal adoption 131 identification of legal basis 130 implementation 129 nature of 128–129 pre-law function 129 publication 131–132 soft law, whether 219–220 Administrative rules in EC law 138–143 classification 140–141 Commission, use by 141 conception 138, 140 De Minimis Notice 142 ‘decisional’ 140–141 see also Decisional notices and communications ‘interpretative’ 140–141 see also Interpretative communications and notices function 139 instruments used 142–143 legal status, uncertainty on 139 terminology 139–140 Case law source of EC law, as 58–59 Codes 153–155 see Decisional guidelines, codes and frameworks Codes of conduct 211–216 see also Codes of practice Codes of practice 211–216 adoption process 215–216 aims 211–212 competence to adopt 303–306 Commission and Council 211–216 external nature 211–212 implementation 213 internal nature 212 legal basis 215 legal nature 212–213 para-law function 214 political engagement 213–214 pre-law function 215 publication 216 reasons for use 214 Commission opinions 186–189

competence to adopt 187–188, 295 conformity of national measures with EC law, on 186 decision making process, in context of 187 EC Treaty, and 187–188 legal nature 187 non-compliance with Community law, on 186–187 post-law function 188–189 pre-law function 188 publication 189 Commission recommendations 162–173 see also Recommendations adoption 171–173 alternative to legislation, as 170 closer cooperation or coordination, aimed at 166 competence to adopt 295–301 external nature 162–163 flexible nature of 168–169 functions 165–171 future legislation, and 163–164 harmonisation, aimed at 166–168 implementation 164–165 influencing behaviour 162 internal nature 163 legal basis 171–173 legislative provisions, and 164 legal nature 163–165 notification 171–173 outside parties, directed towards 162–163 para-law function 169–170 publication 171–173 purposes 165–171 supplementing existing Community legal framework 170–171 para-law function 169 Commission Report for the Reflection Group 14–15 Communications different types 132–133 decisional. see Decisional notices and communications individual 136–138 informative 132–133 inter-institutional 133–135 interpretative. see Interpretative communications and notices

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Index

purely informative 135–136 Community meaning 30 Community executive, indirect legal effects for 401–436 area of competition law 420–436 duty of consistency 431–434 equality principle 422–428 implications of self-binding effect 434–436 legitimate expectations 428–431 limitations of self-binding effect 434–436 area of staff cases 402, 411–420 discretion of administration 412 equal treatment principle 413–414 equality principle; Louwage formula 411–415 legitimate expectations 415–417 patere legem quam ipse fecisti 415–417 area of state aid 420–436 duty of consistency 431–434 equality principle 422–428 legitimate expectations 428–431 limitations of self-binding effect 434–436 area of subsidies 420–436 duty of consistency 431–434 equality principle 422–428 implications of self-binding effect 434–436 legitimate expectations 428–431 limitations of self-binding effect 434–436 decisional acts 403 effectiveness, and 410 essential procedural requirements, basis of 417–418 implementation, questions of 402–404 implementing powers shared by Commission and Member States 403–404 implications of self-binding effect 418–420 legitimacy, and 410 legitimate expectations, principle of 415–417 limitations of self-binding effect 418–420 patere legem quam ipse fecisti 415–417 principles of good administration, and 407–410 development 409–410 infringement 408–409 recognition of self-binding effect of self-imposed rules 404–410 Dutch legal system 405

French administrative law 406 German law 405 national law, approaches in 404–407 UK law 405–406 Community legislature, indirect legal effects for 321–345 compliance with soft law by 340–345 discretion 340–343 NIFPO case 340–343 obligation on basis of general principles of law 343–345 implementation issues, for 322–324 ‘transposition’ 323 transposition of soft law by 325–340 obligation on basis of general principles of law 331–340 Community loyalty 336–338 conflicting principles 331–332 effectiveness 336–338 equal treatment 336–338 institutional balance 334–336 legal certainty 338–340 transparency 338–340 obligation on basis of treaty or secondary legislation 326–331 legal basis provisions 327–328 ‘prohibiting’ legal basis 330 re-regulation of state aid law and policy 332–334 Community soft law see also Soft law abuse of 27–28 alternative to legislation, as 23–32 annulment, of 268–270 central question 25–29 Community Courts, and see European Court of Justice; Court of First Instance Community executive, and see Community executive Community legislature, and see Community legislature Community legal system, and 4–5 concept of 107–122 democratic legitimacy, and 26 designation 23 EC Treaty, and 24 Edinburgh European Council conclusions 4 effectiveness, and 26–27 evaluation 32 examination of rules 31 fashionable use of 3 good governance, and 25, 28 legal effect 27, 31–32 legal rights and obligations 31–32 meaning 3–4

Index national courts, and see National courts national executive, and see National executive national legislature, and see National legislature non-existence, of 268–270 origin 4 positivist approach 29–30 preference for 23 problematic use of 3 proposed increased use 24 results aimed at 31 rule of law, and 28 suspicious use of 27–28 terminology 109–111 transparency, and 29 uniform application of Commmunity law, and 27 use in EC law 23–25 Community loyalty and sincere cooperation, principle of Declaration on Article 10 EC 77, 286–287, 306 personal scope 76–77 substantive scope 95, 336–337, 348–352, 399, 442–446, 465, 468–470, 489, 491 Competence to adopt soft law 291–320 see also Community soft law; Soft law; Conferred powers, principle of; Duty to adopt soft law explicit powers 296–298, 479 formal steering instruments 295–303 Commission, competence of 296–301 Council, competence of 301–303 implied powers 302–303, 308–309, 312–318, 479–480 interpretative and decisional instruments 312–318 Commission 312–318 discretionary powers of Commission 314–315 guidelines 315–316 staff cases 314 non-formal steering instruments 303–06 Commission, competence of 304 Council, competence of 304–306 preparatory and informative instruments 306–311 Commission, competence of 306–310 Council, competence of 310–311 relevance 292–295 conferred powers, and 292–294 Concerted approach see Cooperation; Coordination Conclusions see also Council conclusions mixed 216–218

525

Conferred powers, principle of 64, 68–79 applicability of 295–320 Article 5, EC Treaty 74 Article 7, EC Treaty 74 balance between tasks and competences of institutions 75 choice of correct legal basis 73 effet utile, notion of 72 European Court of Justice, and 71–72 external division of powers 73–74 functions 64, 68, 291 general legal basis 71 guarantee function legal basis 72–73 instrumental function legal basis 69–72 internal division of powers 74–77 legal basis in Treaty 70 see also Legal basis principle of democracy, as 77–78 principle of legality, as 69–72 principle of legal protection, as 72–73 questions arising in relation to soft law 78–79 specific legal basis 70–71 trias-politica 75 Consistency, duty of 431–434 Consistent interpretation, duty of 366, 387–392 Constitutional Treaty for Europe, draft 22, 44, 55, 82, 453, 461, 469, 481, 484, 498, 500–501 Coordination, see also Commission recommendations; Council recommendations; cooperation notion of closer coordination 166, 178–180, 460–461 open method of coordination 22, 90, 163, 179, 223, 461 Cooperation, see also Commission recommendations; Council recommendations; coordination closer 166, 460–461 notion of 178–180 sincere. see Community loyalty and sincere cooperation, principle of specific duty of 273–280, 284–287, 352–356, 442–446, 465–466, 469–470, 477, 501 the ‘Hague Fisheries Resolution cases’ 352–356, 442–446 Council conclusions 193–197 aims 194–195 areas in which adopted 195–196 competence to adopt 303–305 contents 194 increased use of 196–197 legal basis 196 nature 195

526

Index

preparation and elaboration of future Community action 196 publication 197 purpose 195 Council declarations 197–200 addressees 197–198 competence to adopt 303–306 nature 198–199 legal basis 200 reasons for use of 199–200 substantive scope 199 Council recommendations 173–186 see also Recommendations addressees 174 adoption 183–186 competence to adopt 301-303 contents 175 convergence of social protection objectives and policies 180 cooperation or coordination of national policy and objectives 178–180 establishment of common or concerted approach 177 form 174–175 functions 176–183 harmonisation, and 177–179 implementation 175 legal basis 183–186 legal nature 173–176 notification 183–186 para-law function 182 post-law function 181–182 pre-law function 181 publication 183–186 purposes 176–183 structure 175 telecommunications sector 176–177 time limit for compliance 175 Council resolutions 203–211 addressees 204–205 adoption procedure 210 competence to adopt 303–305 contents 204 expansion of use 203–204 functions 207–208 legal nature 205–206 para-law function 208–209 post-law function 209–210 pre-law function 208 publication 210–211 purposes 206 subsidiarity principle, and 206–207 Court of First Instance see also European Court of Justice dual approach to interpretative Commission acts 370–371 Decisional guidelines, codes and frameworks 153–155

area of state aid 154 Decisional notices and communications 32–133, 148–153 area of competition law and policy 148, 150–151 competence to adopt 312–318 draft versions 152–153 external nature 148–149 guidelines, as 149 imposition of obligations 150 instruments of administrative practice and policy, as 150–151 intended legal status 149–150 internal nature 148 nature of 148–149 post-law function 152 purposes 151–152 simultaneous adoption with legislation 152 substantive scope 150 Decisions 52–54 binding effect 52–53 function of 53 individual 52–53 sui generis 53–54 internal nature of 53–54 Declarations, see also Council declarations mixed 216–218 Democratic legitimacy requirement 66–68 direct election of MEPs 66–67 evaluation of use of soft law in the light of 482–488 European Parliament’s decision-making powers 67 formal democratic legitimation of decision-making process 66–67 meaning 66 questions arising in relation to soft law 68 Deregulation meaning 17 Directives 48–52 European Convention proposal: ‘European framework laws’ 44 ‘indirect’ legislation, as 51–52 legally binding force 49 national implementation measures 49–50 discretion 50 requirements 50–51 nature of 48–49 precise and detailed nature of 50 ‘two-stage’ legislation, as 51–52 Duty to adopt soft law 300–301, 303, 309–310, 318

Index EC legislation, see also Legislation; Secondary sources of EC law and legislation; Constitutional Treaty for Europe, draft codification 19 compromise aspect 7 concept of 41–45, 59 context 5–7 core characteristics 7–9 crisis in 9–13 definition 42 deregulation 17–18 detailed nature of 12 directives 48–52 drafting 17–18 enlargement of EU, and 6–7 excessive quantity 10–11 White Paper on Internal Market 10–11 flexibility 16 fragmented nature of 11–12 harmonisation 45–46 harmonisation technique 8 high-compromise nature of 12 influence of Member States 7–8 Integrationsrechtsetzung 45–46 internal inconsistency 13 lack of quality 11–13 legal writing 18 less and better 17–19 modes of European governance 20–22 national developments 9–10 deregulation 9 self-regulation 9–10 new policy 16–22 no longer ‘terra incognita’ 16 proposals to introduce concept of legislative act 42–44 purposes 45–46 rationalisation 19 reclassification 44 redefinition 44 regulations 46–48 re-regulation 19 simplification 17 step-by-step process 8 unification 45–46 welfare state, and 6 Effectiveness 93–95 Community loyalty, and 95 EC legislation, of 94 effet utile 72, 364 implications at Community and national levels 93–96 legal scope of soft law on the basis of 336–338, 410–411, 440–442 meaning 93 national level, at 94

527

questions arising in relation to soft law 96 Effectiveness of Community action evaluation of the use of soft law in the light of 224–231, 494–495 Equal treatment, see Equality, principle of Equality, principle of meaning 95–96 legal scope of soft law on the basis of 336–338, 411–415, 422–428, 440–442 Essential procedural requirements legal scope of soft law on the basis of 417–418 Euro-scepticism emergence of 13 European Convention proposals, see Constitutional Treaty for Europe, draft European Court of Justice, indirect legal effects for 363–384. see also Court of First Instance Community loyalty, and 399 confirmatory interpretation 397 division of powers, and 399 duty of consistent interpretation 366, 387–392 general implications of use of soft law as interpretation aid 393–397 broadening scope of competences 395–396 influence on lawfulness of Community and national law 394–395 institutional balance, and 399 interpretation methods 364 interpretative Commission instruments, role assigned to 367–370 interpretative declarations, role assigned to 374–380 conditions 376–377 favourable approach 374–377 unfavourable approach to Member State declarations 377–378 interpretative power of national courts, and 398 lawmaking role 363–365 mandatory interpretation aid 366, 391–392 possible roles for soft law 365–366 power of interpretation 363–365 preparatory and steering instruments, role assigned to 380–384 favourable approach 380–383 part of intention of legislature 382–383 restrained role, plea for 365 scope of Grimaldi obligation 387–392 role assigned to interpretative Commission instruments 367–374

528

Index

actual ‘covering’ of Commission’s interpretation 372–373 limited legal authority 368 restrictive approach 367–370 role of soft law in interpretation of Community law 366–384 task of interpretation 363–365 teleological interpretation 364 voluntary interpretation aid 365–366 European governance 20–22 modes 20–22 new forms 21–22 open method of coordination 22 European Union crisis of legitimacy 14 Frameworks. see Decisional guidelines, codes and frameworks General principles of law primary source, as 39–40 Good administration, notion or principles of 407–410 Good governance 86–102 effectiveness, 93–95 see also Effectiveness equality 95–96 proportionality, 86–93 see also Proportionality transparency, 96–102 see also Transparency Green Papers 124–126 areas 125 COM documents, published as 126 competence to adopt 306–310 follow-up 125 interested parties 125 nature of 124 primary objective 124 soft law, whether 219–220 Guidelines, see Decisional guidelines, codes and frameworks; Coordination Guiding principles for legislation 61–104 application 62 Article 5 EC 61 democratic legitimacy, see Democratic legitimacy requirement effectiveness, see Effectiveness good governance, see Good governance legal certainty, see Legal certainty, principle of legitimacy, see Legitimacy pressure for recognition 65 rule of law. see Rule of law rule of law requirements 68–102 soft law, and 62 subsidiarity principle. see Subsidiarity principle

transparency. see Transparency Harmonisation Commission recommendations, and 166–168 Council recommendations, and 177–179 legislation 45–46 soft law, and 460–461 ‘Incidental’ legally binding force 248–282 agreement, on basis of 270–282 bilateral acts 271 explicit provision 272–273 multilateral acts 271 scope of legally binding force 280–282 specific duty of cooperation 273–282 any instrument, whether 265–266 assessment of approach of Court 282–289 inter-institutional agreements 284–287 pros and cons 287–289 prospects for legally binding ‘soft law’ 282–284 Court ‘test’ summarised 266–267 Court ‘test’ complete, whether 261–265 decision-making procedure 263–264 giving reasons requirement 261–263 notification 264–265 publication 264–265 exercise of competence, and 259–261 implications 267–270 implications of lawful hard law in clothing of soft law 267–268 implications of unlawful hard law in clothing of soft law 268–270 intention of legally binding force 251–258 context 254–255 notification 257–258 previous history 254–255 publication 257–258 terms 251–254 underlying reasons 256 wording 251–254 new or existing legal effects 258–259 obscurities 261–266 scope 267–270 specific duty of cooperation 273–282 ‘discipline’ 278 state aid 279 undertaking as third party 274 substance, on basis of 248–270 substantive approach to soft law 249–251 refutable presumption 249 review of legality 250–251

Index Indirect legal effects, see Community executive; Community legislature; European Court of Justice; national executive; national legislature; national courts Individual communications 136–138 Informative communications 132–133 purely informative 135–136 Inter-institutional communications 133–135 adoption 134–135 areas 134 legal basis 135 objective 134 scope 134 Informative instruments 132–138 soft law, whether 219–220 Institutional balance 74–77 case law of European Court of Justice 75–76 Community loyalty, and 76–77 evaluation of the use of soft law, and 468–471, 479, 481, 488–490, 501 role of European Parliament in decision-making process 76 scope 334–336 Inter-institutional agreements 200–203 competence to adopt 305–306 legal basis 203 legal nature 202, 284–287, 466 procedure for adoption 203 rules of conduct 201 International treaties primary source, as 41 Internet publication of soft law acts 496 Interpretative communications and notices 132–133,143–148 aims 143–144 clarification of legal situation 146–147 competence to adopt 312–318 concrete contents to undetermined provisions, giving 144–145 explanation of rules 144 inference of new rules 145–146 initiative of Commission 147 legal nature 146 rules of general and normative nature 145 subjective elements 144 Interpretative and decisional instruments 138–155 soft law, whether 220 Joint declarations 200–203 form 202–203 legal basis 203

529

legal nature 202 procedure for adoption 203 rules of conduct 201 scope 201–202 Judiciary, indirect legal effects for 361–399 see also European Court of Justice; Court of First Instance; National courts Law, meaning of 3, 35–37, 112 Legal basis. see also Conferred powers, principle of ‘enabling’ 327–328 ‘in-between’ 327–328 ‘obligating’ 327 ‘prohibiting’ 330–331 Legal certainty, principle of 61–62, 101–102, 338–340, 409 Legal effect 235–290. see also Legally binding force case law 239–240 conceptualisation 235 delimitation of de facto effect 241–242 dual concept in EC Treaty 236–239 explicit stipulation 237–238 ‘incidental’ 238 indirect 239–240 no derogation from hard law 243–246 case law 244–245 secondary community law 245 terminology 242–243 umbrella concept, as 235–243 Legality 478–482 see also Conferred powers, principle of Legally binding force 235–290 see also Legal effect ‘incidental’, 248–282 see also ‘Incidental’ legally binding force ‘inherent’ 246–248 conditions for 247 differences in scope 247–248 formal approach to hard law 246–247 Legislation guiding principles for, 61–104 see also Guiding principles for legislation; EC legislation; Secondary sources of EC law and legislation Legitimacy 62, 63–66 broad conception 63–66 democracy and rule of law 63–66 democratic 63 evolution of understanding 63 rule of law, 64–66. see also Rule of law Legitimacy of Community action

530

Index

evaluation of the use of soft law in the light of 224–231, 477–493, 501–502 Legitimate expectations, principle of 101–102, 340, 415–417, 428–431, 440–442, 465, 475–476 Member State declarations 197–200 Mixed conclusions 216–218 Mixed declarations 216–218 Mixed resolutions 216–218 National courts, indirect legal effects for 361–362, 384–393 role of Community soft law mandatory interpretation aid 391–392 national competence 384–385 scope of Grimaldi obligation 387–392 broad reading, arguments for 387–389 restrictive reading, arguments for 389–391 shift in case law: Grimaldi case 386–387 National executive, indirect legal effects for 436–449 application and enforcement of soft law competition law 437–440, 448–449 effectiveness 440–442 equality 440–442 legitimate expectations 440–442 specific duty of cooperation 442–446 state aid 437–440, 448–449 Notices, see Decisional notices and communications; Interpretative communications and notices National legislature, indirect legal effects for 345–358 transposition of and compliance with soft law Article 10, EC 348–352 ‘Hague Fisheries Resolution Cases’ 352–356 national competence 346–348 obligation on basis of specific duty of cooperation 352–356 possible restrictions 356–358 Securitel scandal 345–346 Open method of Coordination, see Coordination Opinions 56, see also Commission opinions recommendation compared 161–162 Patere legem quam ipse fecisti, principle of 415–417, 474, 476 see also Legitimate expectations, principle of

Preparatory instruments, 123–138 soft law, whether 219–220 Primary sources of EC law and legislation 37–41 EAEC Treaty 37–38 EC Treaty 37–38 ECSC Treaty 37–38 general principles of law 39–40 fundamental rights 40 non-discrimination 40 international treaties 41 necessity of additional sources of law 38–39 negative integration 38–39 positive integration 38–39 Proportionality, principle of 86–93 Article 5, EC 87–88 broad discretionary powers, and 89 context in which arising 87 form and intensity of Community action 89–92 choice of instrument 91, 107, 114, 309, 327–328, 330–331, 334–337, 347, 356–359, 468, 470, 484, 489, 500, 502 harmonisation measures 91 ‘measures’, scope of 91–92 non-binding measures 90 judicial and legislative doctrine, as 86–89 principle of good administration, as 409 Protocol on subsidiarity and proportionality 309, 334–338, 483–484, 489, 500 questions arising in relation to soft law 92–93 three-stage test as judicial doctrine 88–89 Recommendations, 56 see also Commission recommendations; Council recommendations addressees 161 characterisation 159 legal nature 160 ‘no binding force’ 159 opinion compared 161–162 Regulations 46–48 administrative 48 definition 46–47 direct applicability 47–48 European Convention proposal: ‘European laws’ 44 legally binding force 47 Resolutions, see also Council resolutions mixed 216–218 Rule of law 64–66, 103–104

Index Article 220, EC Treaty 33–34 classical conception 64–65 conferred powers, principle of 64, 68–79. see also Conferred powers, principle of democratic and social conception 64–65 governing per lege 64 governing sub lege 64 legitimacy, and 64–66 requirements 66, 68, 79, 86 Secondary sources of EC law 41–55 decision 52–54. see also Decisions directives 48–52. see also Directives general nature of 55 hierarchy 54–55 legislation 41–52. see also (EC) legislation regulations 46–48. see also Regulations relations between 54–55 Self-binding effect of soft law, see Community executive, indirect legal effects for Simplification meaning 17 Soft law, see also Community soft law action programmes 219–220 see also Action programmes adoption process, democratic influence in 486–488 formalisation 488 interpretative acts 487 non-formal steering instruments 487 alternative terminology 110–111 classification 457 competence to adopt, see Competence to adopt soft law criticisms of term 109–110 definition 111–113 delimitation 121–122 democracy, implications for 477–498 democratic influence on choice of instrument 483–486 consultation process 484–485 third parties, and 485 democratic legitimacy 482–488 consultation documents 483–484 European Parliament, role of 482, 485 requirement to state reasons, and 485 differentiating effects 494–495 evaluation 454–502 external division of powers 491–493 differences between Commission’s and Council’s way of acting 492–493 harmonisation process, and 491

531

functional classification of instruments 118–120 interpretative and decisional instruments 118–119 preparatory and informative instruments 118 steering instruments 119 three main categories 118–119 three main functions 119–120 Green Papers. see Green Papers harmonisation, and 460–461 heterogeneity of phenomenon 113–117, 456–457 instruments aimed at establishing new Community rules or principles 114–115 problems connected with 115–117 reasons for choice of particular instrument, and 116 two lines in legal writing 113–115 umbrella terms or instruments 116 hybrid system of instruments 455–457 indirect legal effects 467–477 competition law 477 executive level 474–477 interpretation aid 470–474 judicial level 470–474 legislative level 467–470 obligation to transpose 467–468 principle of Community loyalty and sincere cooperation 469–470 role of decisional acts in legal practice 475–476 staff cases 474–475 state aid 477 internal division of powers, and 488–491 application of subsidiarity and proportionality principles 489 institutional balance 490–491 interpretative and decisional instruments 220 legal effect 461–477, see also Legal effect; Legally binding force incidental 462–466 action for annulment, and 464–465 characterisation of act at issue 465 Council recommendations 464 intention of creating new legal effects 463 requirements 463–464 state aid 465–466 indirect 467–477 inherent 462–466 legality: competence 478–482 Commission 479–480, 481 conferred powers, principle of 478–482

532

Index

Council recommendations 480–481 limited alternative to legislation 455–461 formal steering instruments 459–460 interpretative and decisional instruments 459 non-formal steering instruments 460 preparatory and informative instruments 458–459 objections to term 109–110 para-law function 120, 457–461 possible abuse of 490 post-law function 120, 457–461 pre-law function 120, 457–461 prerequisites to function as alternative to legislation 117–118 proposals for change 498–502 application of subsidarity and proportionality test 502 clarification of legal effect 501 classification of instruments 500–501 more consistent use of instruments 499–500 procedural changes with view to increasing legitimacy and transparency 501–502 rationalisation of instruments 499 redefinition of instruments 500–501 rationalisation, proposal for 497 rule of law, implications for 477–498 satisfactory alternative to legislation, whether 121–122 ‘shadow area between law and politics’ 111 shortcomings of Community legislative process 454 three core elements 112 top-down legislation, and 454 transparency, and 495–498 contributing to 495–498 Internet, and 496 obscuring 495–498 uniformising effects 494–495 variety of instruments 497 White Papers, see White Papers Sources of EC law and legislation 33–59 agreements concluded between Member States 56–58 autonomous agreements 57 complementary agreements 57 executive agreements 57 international law agreements, as 58 Article 249, EC Treaty 35–36 case law 58–59 classification 35–37 concept of law 3, 35-37, 112 concept of legislation 59 defective system 59 hierarchy 36–37

‘in-between’ sources 56–59 incomplete system 59 meaning 35 primary, 37–41. see also Primary sources of EC law and legislation reclassification in European Convention and draft Constitutional Treaty rule of law, and 33 secondary 41–55, see also Secondary sources of EC law and legislation tertiary 55–56, see also Tertiary sources of EC law and legislation State aid 332–334 Steering instruments 155–218 see also Commission recommendations; Council recommendations; Recommendations acts of Member States in different capacities 189–193 European Council acts 192 legal nature of 191 ‘other positions’ 190 RGM acts 190–192 additions to contents of existing acts 157 alternative to legislation 221–224 Article 249, EC Treaty 158–162 ‘no binding force’ 159–160 concept 155–158 effectiveness of Community action, and 224–231 formal 155–189 soft law, whether 220–221 functions 157–158 legitimacy of Community action, and 224–231 meaning 156 non-formal 189–218 soft law, whether 220–221 primary objective 156–157 soft law, whether 219–221 term 155–158 transparency of Community action, and 224–231 Subsidiarity principle 79–86 ambiguity 85–86 Article 5, EC Treaty 80 criteria for application 82–86 Edinburgh conclusions 84 efficiency 83–84 effectiveness 83–84 democratic legitimacy 84–86 dual nature 85–86 external exercise of powers 79–81 meaning 80–81 non-exclusive competence 82

Index Protocol on subsidiarity and proportionality 309, 334–338, 483–484, 489, 500 relationship between Community and Member States 81 role in Treaty amendment discussions 81 scope 327–328, 330–331, 334–337, 347, 356–359, 468, 470, 484, 489, 500, 502 Tertiary sources of EC law and legislation 55–56 meaning 55–56 opinions 56 recommendations 56 soft law, and 55–56 Transparency 96–102 accessibility 97–99 elements of 97 giving reasons requirement 99–100 Article 253, EC Treaty 99–100 importance of 97 legal certainty, principle of 101–102 notification requirement 100–101

533

openness 97–99 publication requirement 100–101 questions arising in relation to soft law 102 Transparency of Community action evaluation of the use of soft law in the light of 224–231, 495–498, 501–502 Transposition of soft law, see National legislature; Community legislature Unification of legislation

45, 46

White Paper on European Governance 15 White Papers 126–128 adoption procedure 127–128 areas 127 competence to adopt 306–310 COM documents, published as 128 Green papers compared 127 nature of 126 objective 126–127 soft law, whether 219–220