Memorandum by the Law Society of England
and Wales
INTRODUCTION
1. The Law Society of England and Wales
("the Society") welcomes the opportunity to contribute
to the Sub-Committee E (Law and Institutions) inquiry on the initiation
of EU legislation. The Society is the representative body of over
125,000 solicitors in England and Wales. The Society negotiates
on behalf of the profession and lobbies regulators and government
in both the domestic and European arena.
2. The Society's EU Committee previously
undertook a "Better Law Making" campaign which examined
some of the issues addressed in this inquiry.[5]
A number of the points set out here have also been raised in evidence
previously submitted to the House of Lords Select Committee inquiry
on the European Commission's Annual Work Programme.
3. The Society is not in a position to respond
to all the questions posed but will comment on the roles of the
Institutions and certain other parties and will seek to highlight
a number of key concerns relating to the initiation and development
of legislation, particularly in the area of police and judicial
cooperation in criminal matters. Where possible examples will
be given to illustrate the points being made, including addition
subjects over an above the three areas identified as being of
special interest to the Committee.
EUROPEAN COMMISSION
(a) Transparency
4. The Society agrees that the European
Commission ("the Commission") operates to a great extent
in an open and transparent way as regards development and initiation
of legislation. This has been the result of a number of developments
since the publication of the European Commission's White Paper
on European Governance in July 2001[6].
It is not always possible, however, to pinpoint from where an
idea originated. Despite the steps it has made towards transparency,
this does not extend to the Commission disclosing with whom it
has had contacts, other than through public consultation. The
Society takes this opportunity to welcome and encourage the practice
of the Commission in publishing the responses to its consultation
exercises.
(b) Setting the agenda
5. The Commission's Annual Work Programme
is an effective tool for setting the agenda for the creation of
legislative proposals as it clearly sets out the overarching strategic
themes that will govern the Commission's work—such as "prosperity;
solidarity; security and freedom, and a stronger Europe in the
world". In addition it is clear that the political decisions
taken by the European Council or the sector-specific Councils,
such as the Justice and Home Affairs Council, do set the future
legislative and political agenda and can determine priorities
in terms of on-going legislation.
6. The Society considers that the Commission's
Work Programme does offer relevant information as to the key proposals
that will be brought forward and the time-line foreseen. However
it falls short of the effective instrument that it could be. Whilst
it should stand as the overall strategy document for the work
of the European Commission in particular, and the EU legislature
collectively, by the time it is published many of the deadlines
and indicative dates that are given are already out of date. This
undermines its usefulness. Often, dates set by the Commission
for specific proposals are only aspirational or indicative, but
equally they are often overly ambitious and as a result are frequently
not met.
7. Moreover, the Work Programme suffers
from not being one single, coherent document. The information
in these different documents is sometimes contradictory and it
is not always clear which should be regarded as the definitive
source. For example, some of the information contained in the
"roadmap" is neither reproduced nor referred to in the
indicative list of legislative and non-legislative proposals.
It is often more effective to rely on sector specific action plans
such as: the Financial Services Action Plan series, the Company
Law Action Plan and the Hague Programme Action Plan in the area
of freedom, security and justice.
8. Although recognising the need to balance
adequate information with a manageable amount of information,
we consider that there is insufficient detail about what is proposed
so it is impossible for those potentially affected to judge the
significance of any individual proposal or even what the proposal
may be about. The Work Programme itself also gives no real indication
of specific legislative priorities beyond broad political and
policy statements. Again the information dealt with in sector-specific
information has to supplement the Work Programme itself.
(c) Coherency in policy making and definition
9. The coherence of policies is sometimes
an issue of concern but is also indicative of a possible lack
of strategic overview of the Commission's work. A current issue,
collective redress ("class actions"), provides a good
example. At least two Commission Directorates General are working
on proposals—both DG Competition (DG COMP) and DG Health
and Consumer Affairs (DG SANCO) are active in the matter. While
the Society is supportive of both streams of work, that of DG
COMP is, much further advanced (a White Paper was published in
April 2008), compared to that of SANCO, which is conducting in-depth
research. Commissioner Meglena Kuneva took office in 2007 when
Bulgaria acceded to the EU, and it appeared that she gave a lot
of political impetus and profile to the work of DG SANCO.
10. While the Society has not taken a position
on the need for EU-wide and/or national class actions systems
and what form they might take, it is nonetheless suggested that
there could be greater consistency across the Commission / EU
policy here. The basic policy objective is the better enforcement
of Community law rights and access to justice. This objective
might not be best served if, as appears to be the case, ideas
are being developed in "policy silos". One explanation
for the present position could be to do with the stakeholder contacts
and audiences the different Directorate Generals have. For example,
DG SANCO will have greater contact with consumer affairs organisations
and be sensitised to their issues. Indeed, the availability of
collective redress could also be an issue of relevance in relation
to other subject areas, for instance, employment law, environment
law, securities law. It clearly seems to be an issue where joined-up
thinking is needed.
(d) Fulfilling the remit
11. The Society also has concerns regarding
the situation where the Commission is delayed in bringing forward
legislation identified in the annual Work Programme or the equivalent
sector specific action plan. This is particularly the case in
the area of police and judicial cooperation where a number of
proposals indicated in the Hague Programme Action Plan have not
as yet been brought forward and it is not clear that they ever
will be. For example, neither the Green Paper on handling of evidence,
scheduled in the Hague Programme Action Plan for 2006, and the
Green Paper on default (in absentia) judgments again scheduled
in the Hague Programme for 2006, were presented in 2006 or indeed
2007. There was no public explanation for this and no obvious
means by which to hold the Commission, or the Member States, to
account for failing to follow the actions set out. However the
Slovenian Presidency, in conjunction with a number of other Member
States including the United Kingdom, brought forward a Member
State initiative on in absentia judgments in January of this year.[7]
12. A key example of the failure to fulfil
the remit of the Hague Programme Action Plan—the fault for
which should be levelled at the Member States in the Council not
the Commission—is in relation to procedural safeguards and
the rights of the individual. The Hague Programme stated that:
"the objective of the Hague programme is to improve the common
capability of the Union and its Member States to guarantee fundamental
rights, minimum procedural safeguards and access to justice"
and: "the further realisation of mutual recognition as the
cornerstone of judicial cooperation implies the development of
equivalent standards for procedural rights in criminal proceedings".[8]
Since then no legislation has been adopted that reflects this
objective and the focus has been on police and prosecution authority
cooperation and on legislation that has been introduced by Member
State initiative outside of the Hague Programme. An example of
which would be the Prüm Treaty, an initiative by seven Member
States for common action for improving cooperation in combating
terrorism and serious cross-border crime. This is now in the process
of being incorporated into the European Union framework yet it
has not been subject to impact assessment or stakeholder consultation
and there has been limited democratic scrutiny.[9]
THE COUNCIL—THE
MEMBER STATES
13. While the Commission generally has the
right of initiative under the EC Treaty it would, we believe,
be naive to imagine that they did not take into the account the
known or anticipated views of the Member States when formulating
policies and proposals for legislation. Many opportunities exist
for the Member States to make known their views, formally or informally,
in general or in precise terms, collectively or individually.
This said, there have been cases where on presentation by the
Commission the response of the Council (or a sufficient number
of Member States) has been radically different.
14. Take, for example, the Framework Decision
on certain procedural rights in criminal proceedings, where the
original Commission outline and the subsequent proposal were substantially
different in scope and ambition in order to take into account
the Member States' views. As mentioned above, still no measure
has been adopted. On the other hand it could be argued that the
Commission should take more heed of the likely outcome in the
Council before producing a piece of legislation. The "Rome
III" proposal, the draft Regulation on jurisdiction and applicable
law in matrimonial matters is a clear example of a piece of legislation
that inevitably would face political and technical difficulties.[10]
In an area of unanimity voting, significant legal and cultural
difficulties and one Member State (Malta) having no domestic divorce
regime at all the outlook for this proposal was gloomy at best.
15. We comment in more detail below on the
key area within freedom, security and justice, namely the Third
Pillar, where the Member States have the right of initiative.
THE EUROPEAN
PARLIAMENT
16. As regards the European Parliament it
is clear that its role has been significantly enhanced due to
the expansion of co-decision in a number of areas—civil
judicial cooperation under the Treaty of Nice for example—and
due to take place following the entry into force of the Treaty
of Lisbon. The Commission and the Council have a greater awareness
and sensitivity to the role of the Parliament in terms of initiating
legislation and the legislative process as a whole. However, what
is not certain is the Parliament's influence when it takes an
own initiative report to call on the Commission and Council to
take action. For example, the European Parliament resolution on
cross-border limitation periods, the Wallis report that contained
a draft legislative proposals.[11]
It is not clear what action the Commission or Council since then.
The European Private Company Statute, mentioned above, however,
was subject to calls for legislation from the European Parliament
and lobbying from business, including threats of litigations from
certain MEPs, should the Commission decide not to take any action.
This undoubtedly contributed to the priority given to this proposal.
17. Equally when the European Parliament
responds to pre-legislative consultations, such as a Commission
Green or White Paper, through an own-initiative resolution, this
is of influence in shaping the future ambitions of the Commission.
Such initiatives are often indicative of what legislative proposals
Parliament could or could not accept, should they be proposed.
18. The Society considers that the likely
reactions of the European Parliament are also a significant factor
in triggering work or determining the scope and extent of proposed
EU legislation during the development of proposals. There is clearly
an awareness that there is a higher level of scrutiny and nervousness
about having to withdraw and totally revise legislation because
of failure to consider it properly in advance.
19. In the company law field for instance,
pressure from the European Parliament seems to have led the Commission
to announce that it would bring forward a proposal for a European
Private Company Statute, while the public consultation on the
desirability of such a measure had not ended. Similarly the Commission
had been working to produce a proposal on the transfer of a company's
registered seat from one Member State to another. This was felt
to be a useful initiative but the Commission has now decided not
to bring it forward. It would appear that the measure took account
of the likely outcome of negotiations in the European Parliament
and Council. It was concluded that it was likely that the measure
would be diluted to such an extent that it was not worth bringing
forward a proposal at all.
THE EUROPEAN
COURT OF
JUSTICE
20. As regards the European Court of Justice
the Society considers that judgments of the Court do have an impact
in terms of the initiation of legislation, particularly as regards
the proper legal basis and the division of competence between
the first and third pillar. The prime example here would be case
C-176/03 European Commission v Council of the European Union[12]
where the Framework Decision on 2003/80/JHA on the protection
of the environment through criminal law was annulled as the provisions
of the Framework Decision encroached on the powers conferred by
the EC Treaty in relation to first pillar environmental law policy.
The Commission then followed up with a Communication which highlighted
a number of existing legislative instruments and outstanding proposals
that it would review in light of the Court's decision.
21. The European Court judgments clearly
also play a role in the making of legislation. Take for example
the Alcatel[13]
case (C-81/98) which was a case on the interpretation of Directive
89/665/EEC relating to public procurement and review procedures
and the revised Directive amending Directives 89/665/EEC and 92/13/EEC
with regard to improving the effectiveness of review procedures
concerning the award of public contracts.
22. The Court's judgments also play a role
in the creation of soft law instruments such as Commission communications
and guidelines, examples of which can be found in the Competition,
Procurement and State Aid field. In the Procurement area see the
new IPPP Notice on procurement law which is based primarily on
the interpretation of the Stadt Halle[14]
case (C-26/03) and those that followed. In addition the "Interpretative
communication on the Community law applicable to contract awards
not or not fully subject to the provisions of the Public Procurement
Directives" which is based on the Commission's interpretation
of ECJ judgments concerning the application of the free movement
provisions of the Treaty in procurement not covered by the Directives.
23. Similarly ongoing litigation in the
field of Article 82 (abuse of dominant positions) has had a significant
impact on the Commission's work to produce guidelines on exclusionary
abuses. The fact, however, that cases such as the judgment in
the Microsoft[15]
case (T-201/04) were still pending did seem to cause the Commission
to pause these initiatives.
24. The Commission has also ended up bringing
forward initiatives where it might not otherwise have done so
as a result of ECJ case law. Although there is very limited EC
Treaty competence to adopt EC legislation in the field of taxation,
and competence lies primarily with the Member States, national
tax rules must comply with the general principles of Community
law and the rules on free movement. A series of ECJ case law has
condemned national tax measures, such as the Marks & Spencers[16]
case (-309/06) and as a result the Commission published a series
of communication in 2006, trying to clarify these judgments as
well as encourage greater coordination between Member States of
their tax systems. Ironically, in certain circumstances, the Commission
may find its hands tied, where the Court has been able to apply
general principles to issues not falling within the Treaty's competence.
25. It could also be argued that a line
of cases, including Crehan[17]
(C-453/99), has given impetus and direction to the Commission's
work on private enforcement in relation to antitrust breaches.
While the ECJ already had established case law on the direct effect
of Community law and the entitlement to damages, Crehan
was the first time that the ECJ had expressly noted the right
to seek damages in civil actions for breaches of Articles 81 and
82. This ruling was given in 2001, the Commission commissioned
research in 2003, which was completed in 2004, and the Green Paper
was published in 2005[18].
STAKEHOLDER INPUT
AND EXTERNAL
INFLUENCE
(a) Stakeholders
26. A wide variety of factors may influence
the preparation, proposal, negotiation and ultimate content of
EC legislation. Certainly it is the Society's experience that
legislation can be influenced in the drafting and preparatory
stages. This is the stage at which views of interested parties
such as non-governmental organisations, professional bodies and
pressure groups can have an impact and can influence the shape
of the proposal. In terms of the influence of the general public
it appears that the Commission often relies on surveys such as
the Euro barometer in expressing the opinion of the public at
large.[19]
27. In terms of consultation and the ability
for external stakeholders to feed into the development of legislation
in a particular field, the Society is positive about the Commission's
action in this area. The Commission is effective in seeking out
ideas and expertise and systematically issues consultations during
the preparatory stages of legislation. These are often followed
up by public hearings or experts meeting which allow for further
deliberation and input from stakeholders.
28. In some cases, the stakeholders involved
with certain policies or pieces of legislation might be from a
limited group who are in regular contact. For instance, there
are many competition law practitioners and industry lobbies in
Brussels. Commission officials decide on legislation on policy,
as well as enforce and apply it. This happens in few other areas
of Community law, where Member States normally implement and enforce
the law. It might be of interest to look in further detail at
the interaction of stakeholders and officials in this field.
(b) Lobbyists
29. The Commission is currently putting
in place a register for lobbyists, which would require them to
abide by a code of conduct and disclose clients, the interests
represented, and certain financial information.[20]
It would cover a range of bodies include public affairs consultancies,
trade associations, NGOs and also lawyers. Discussions in the
European Parliament, however, have seen support for the idea of
a legislative "footprint"[21].
As such, the European Parliament's legislative reports would list
those who had lobbied in relation to the proposal at hand. Rather
than, or as well as, imposing obligations on stakeholders who
are outside the Commission, it should consider first the transparency
of its own procedures and decision making. Improving the transparency
of decision making is the purpose of the initiative and more rigorous
reporting or disclosure of the lobbying that influences the Commission
seems the most appropriate means of achieving this.
(c) Other actors
30. Often the international dimension plays
an important role. In many fields, including the environment,
transport, telecommunications, securities and competition law,
there are forums where governments, regulators and policy makers
meet to discuss common problems. In relation to antitrust in particular,
the global nature of companies and certain anti-competitive behaviour
necessitates effective cooperation. The European Competition Network,
for instance, has played an important role in the adoption of
similar leniency policies at EU and Member State level. The role
of organisations such as the OECD and the International Competition
Network should be also recognised in this context.
31. Finally, as regards national parliaments
it is clear that under the Treaty of Lisbon national parliaments
will have an enhanced role as regards proposals for legislation
particularly from the perspective of subsidiarity. Although in
terms of the Council deliberations there is mechanism of the parliamentary
scrutiny reserve, to date however it is not clear whether national
parliaments have had an impact in terms of the initiation of legislation.
INITIATION OF
LEGISLATION UNDER
THE THIRD
PILLAR—POLICE
AND JUDICIAL
COOPERATION IN
CRIMINAL MATTERS
32. It is the Society's view that proposals
for Framework Decisions brought forward by Member States may undermine
the overall coherence and consistency of approach in the area
of police and judicial cooperation. For example, the Tampere Conclusions
1999 and the Mutual Recognition Programme of 2000 had already
foreseen action in the area of conflict of jurisdictions and ne
bis in idem. However during the Greek Presidency 2003 a proposal
was brought forward by Greece specifically on the question of
ne bis in idem or "double jeopardy"[22].
The draft framework decision was never adopted and the general
consensus appeared to be that it would be better to wait for the
Commission to take action in this area, despite the fact that
a significant amount of negotiation had taken place in the Council,
and the European Parliament had completed the First Reading process.
33. Experience would suggest that individual
Member State proposals are often designed to address pressing
domestic political issues rather than a collective European interest.
For example, the Spanish Presidency in 2002 proposed a European
network for the protection of public figures which consisted of
the national police services and other services responsible for
the protection of public figures[23].
A second Spanish proposal was for a Framework Decision on suppression
by customs administrations of illicit trafficking on the high
seas[24].
Neither objective had appeared in the Tampere Conclusion 1999
or the subsequent Mutual Recognition Programme of 2000. In addition
the Belgian government proposed an initiative on combating the
sexual exploitation of children and child pornography relating
to the recognition and enforcement of prohibitions arising from
convictions for sexual offences[25].
Although this proposal did meet a Hague Programme objective it
was driven by the domestic political considerations of the day.
This latter text has not yet been adopted and negotiations have
stalled.
34. Moreover, proposals that are presented
during a Presidency "jump the queue", suddenly becoming
a legislative and political priority. The Presidency's goal of
adoption of the text within its six month term may cause other
longer-term proposals to be put on hold or to be severely delayed.
For example, the joint French and German initiative on recognition,
supervision and execution of suspended sentences and alternative
sanctions the so-called "probation proposal"[26]
immediately took precedence over other proposals on the table
such as the European Supervision Order which was a Commission
proposal[27].
35. Significantly, Member State proposals
are not subject to any prior study or analysis or consultation
process at European level and there is little room for external
stakeholder participation. Explanatory memoranda are frequently
short and impact assessment non-existent. By contrast, a Commission
proposal would be normally subject to detailed preparatory work
and inter-service consultation to allow for input from different
Directorates General. Proposals are published with explanatory
memoranda and impact statements. No such process relates to Member
States' initiatives.[28]
Moreover there is little control over the drafting of Member States'
texts, which on occasion may leave much to be desired.
36. The Society hopes that these comments
offer some useful examples for the Committee's consideration.
April 2008
http://register.consilium.europa.eu/pdf/en/08/st05/st05213.en08.pdf
http://www.publications.parliament.uk/pa/ld200607/ldselect/ldeucom/90/90.pdf
tpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom
docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&allcommjo=allcommjo&
affint=affint&affclose=affclose&numaff=176%2F03&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nom
usuel=&domaine=&mots=&resmax=100
tpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&
docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&allcommjo=allcommjo&
affint=affint&affclose=affclose&numaff=&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=
Microsoft+&domaine=&mots=&resmax=100
tpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&
docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&allcommjo=allcommjo&
affint=affint&affclose=affclose&numaff=&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=
Marks&domaine=&mots=&resmax=100
25&md=100
5 http://www.lawsociety.org.uk/influencinglaw/policyinresponse/view=article.law?DOCUMENTID=258501 Back
6
These include the Commission's Communication on better law-making,
the adoption of minimum standards for consultation by the Commission,
initiatives on simplification and impact assessment and initiatives
by successive EU Presidencies such as the Six Presidency Better
Regulation agenda. An interinstitutional agreement on better law-making
between the Commission, European Parliament and Council of Ministers
(the Council) was signed in 2003. Recent work on Better Regulation
and simplification has also been welcome. Back
7
Draft Council Framework Decision on the enforcement of judgments
in absentia Back
8
http://ec.europa.eu/justice_home/doc_centre/criminal/procedural/doc_criminal_procedural_en.htm Back
9
The House of Lords European Union Committee report on "Prum
Treaty: weapon against terrorism and crime? Back
10
Proposal for a Council Regulation amending Regulation (EC) No
2201/2003 as regards jurisdiction and introducing rules concerning
applicable law in matrimonial matters http://register.consilium.europa.eu/pdf/en/06/st11/st11818.en06.pdf Back
11
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2006-0405&language=EN&mode=XMLtitle1 Back
12
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jur Back
13
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&numaff=c-81/98 Back
14
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&numaff=c-26/03 Back
15
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jur Back
16
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jur Back
17
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&numaff=c-453/99 Back
18
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0672:FIN:EN:PDF Back
19
http://ec.europa.eu/public_opinion/index_en.htm Back
20
The European Transparency Initiative http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm Back
21
Report on the development of the framework for the activities
of interest representatives (lobbyists) in the European institutions
(2007/2115(INI)), 2 April 2008. Back
22
http://register.consilium.europa.eu/pdf/en/04/st14/st14207.en04.pdf Back
23
http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&typ=Advanced&cmsid=639&ff_COTE_DOCUMENT=5361%2F02&fc=REGAISEN&srm= Back
24
http://register.consilium.europa.eu/pdf/en/02/st05/05382en2.pdf Back
25
http://register.consilium.europa.eu/pdf/en/04/st14/st14207.en04.pdf Back
26
http://register.consilium.europa.eu/pdf/en/07/st05/st05325.en07.pdf Back
27
http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0468en01.pdf Back
28
Although it should be noted that the recent proposal on in
absentia judgments stemming from the Slovenian Presidency
and others, including the UK, has been put out to consultation
by the UK Government. Back
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