Select Committee on European Scrutiny Nineteenth Report




COM(01) 728

Commission Report to the European Council : Better lawmaking 2001.

Legal base:
Document originated:7 December 2001
Forwarded to the Council:10 December 2001
Deposited in Parliament:16 January 2002
Department:Cabinet Office
Basis of consideration:EM of 28 January 2002
Previous Committee Report:None
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Cleared


  12.1  Since the Edinburgh European Council in December 1992, the Commission has produced annual reports dealing with progress made in improving legislation in the EU. From 1995 onwards the reports have considered not only the application of the principles of subsidiarity and proportionality, but also ways of making legislation simpler, more understandable and more accessible.

  12.2  When we considered the Commission's report for 2000, we drew attention to the recognition by the Commission that respect for diversity and the enlargement of the European union would require more attention to be paid to subsidiarity.

The report

  12.3  The first part of the report is concerned with the operation of the principles of subsidiarity and proportionality. The second part describes the legislative activity of the Community in 2001 and the final part is concerned with the quality of lawmaking.

  12.4  The discussion of the principles of subsidiarity and proportionality refers to legislative activity in the field of asylum policy and the treatment of third country nationals as an area where Community action was justified. The report refers, in a similar vein, to environment and social policy, the protection of the Community's financial interests against fraud, regional policy and statistics. Somewhat revealingly, the Commission refers to subsidiarity and proportionality requirements as being questions of 'expediency[47] and scale', but also points out that the subsidiarity principle applies only to areas in which the Member States and the Community share competence. However, the report contains no instance of a decision by the Commission not to make a proposal because of respect for the above principles.

  12.5  In describing the Community's legislative activity in 2001, the Commission points out that there has been a decline in the overall number of proposals made by the Commission since 1990. (There has been a fall from 787 in 1990 to 493 in 2000 and 400 by the end of October 2001). The Commission also emphasises its increased efforts to conduct wide consultation before making proposals.

  12.6  On the quality of lawmaking, the Commission reports that the joint practical guide for persons involved in the drafting of legislative texts has now been finalised in all official languages and is accessible on the Internet. The guide recommends that all Community institutions should organise their internal services so that legal/linguistic experts are involved at an early stage. The report also reviews progress in the recasting, consolidation and codification of Community legislation. In 2001, seven proposals were made by the Commission for codification, which would replace 78 existing legal acts. The Commission estimates that the number of consolidated measures should have reached 1240 by the end of 2001, compared with the total of 1030 reached at the end of 2000.

The Government's view

  12.7  In his Explanatory Memorandum of 28 January 2002 the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster (Lord Macdonald of Tradeston) comments on the policy implications of the report as follows:

"The report this year places greater emphasis on subsidiarity, which the Government welcomes. The examples given show instances where more Community action has been taken and where the Community has left action to Member States. Above all, it shows that the Commission is giving serious attention to the principle of subsidiarity in drawing up proposals. This is further borne out by the table showing the number of legislative proposals in 2001. Despite the addition of objectives by successive Treaties this number has fallen from 787 in 1990 to 400 in 2001.

"The Government is committed to further developments in the application of the principle of subsidiarity. This will be a major objective for the Future of Europe process, which is to be taken forward by a Convention beginning in March 2002. We will look at ways of strengthening the principle within the Treaties and making it more visible and more applicable. But there is much that can be done outside Treaty change, such as greater attention to the subsidiarity fiche that is completed for each proposal and greater efforts to review existing legislation within the acquis communautaire and identify measures which are no longer needed or which might now be better handled by Member States. The Government will encourage the Commission in these efforts."


  12.8  We are grateful to the Minister for his comments on the question of subsidiarity. We agree that the principle should also be brought to bear on the existing body of Community legislation, and we shall look forward to hearing more of the Government's proposals in due course.

  12.9  Whilst we broadly agree with the Minister's assessment of the Commission's report, we would have found the Commission's engagement with the principles of subsidiarity and proportionality more convincing if the report had given details of occasions when these principles had persuaded the Commission not to bring forward proposals.

  12.10  We have no questions to put to the Minister and we clear the document.

47  This would suggest - wrongly in our view - that Article 5 EC is only concerned with the appropriateness of action by the Community and contains no legal limitation on the Community's powers. Back

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