Better Law-Making in Practice, 2-3 February 2017

Written by Eva Casalprim and Laura Tilindyte,

The implementation and the broader implications of the Interinstitutional Agreement on Better Law-Making (which entered into force on 13 April 2016), were a common thread of the joint seminar devoted to better law-making in practice on 2-3 February 2017, jointly organised by the European Parliament’s Legal Service and EPRS. Two eminent experts in the field – Professor Sasha Garben of the College of Europe in Bruges and Professor Mark Dawson of the Hertie School of Governance in Berlin – shared their knowledge on the legal aspects of the difficult task of improving complex EU legislation to ensure EU law meets the needs of citizens and businesses.

In her introductory speech, Professor Garben (College of Europe) shared some inspiring thoughts regarding the quality of EU legislation, and discussed the structural factors of an EU of 28 Member States that render the task of adopting simple, clear and accessible rules rather difficult in practice. Professor Garben also emphasised the different, and sometimes conflicting, narratives of the EU better regulation agenda and stressed the need for further clarification and improvement.

The first joint declaration on EU’s legislative priorities, which was signed on 13 December 2016, was the focus of a panel discussion on legislative initiative and programming, Points raised at the seminar included emphasising that ‘priority treatment’ of certain initiatives, as envisaged in the agreement, should not be confused with ‘backroom deals’.

Wolfgang Hiller of EPRS emphasised the reaffirmed role of impact assessment in contributing to high quality legislation, but also pointed to the remaining differences between the institutions regarding the intensity of their impact assessment work, which requires continued inter-institutional exchange and cooperation. The legal dimension of impact assessment was also highlighted with a stress, inter alia, on the increased tendency of the Court of Justice to address the (presence or absence of) impact assessments in its judgments.

Recent better law-making efforts signal a shift of attention to the question how EU laws are being implemented and applied ‘on the ground’. Following the logic of the legislative cycle, the fourth panel on implementation of Union law focused on the need for effective monitoring of Member States’ transposition measures, including the ‘gold-plating’ phenomenon. Jose Luis Rufas Quintana of EPRS emphasised the importance of evaluation, and noted the shift towards the logic of ‘evaluate first’ before taking new measures. EPRS is contributing with evaluation/ex-post impact assessment work, however challenges remain, including the need for interinstitutional coordination and data-sharing.

The second day of the seminar was devoted to delegated and implementing acts (DIAs) and soft law. The discussion on DIAs recalled the origin of the delegated (DAs) and implementing acts (IAs) in the European Convention and reflected on their development in the period preceding the new Interinstitutional Agreement on Better Law-Making. One of the main elements highlighted was the consultation of national experts in the preparation of delegated acts, including systematic access for European Parliament experts to all related meetings and documents. The discussion helped to distil the main challenges faced in the European Parliament’s work and emphasised the importance of confidence-building between the institutions.

The topic of soft law was introduced by Professor Dawson, who underlined that soft law has not been taken into account in the Inter-institutional Agreement, and is viewed with a certain degree of ambiguity and suspicion by European legislators. During the discussion, it was pointed out that, while better law-making signifies clarity, simplicity and coherence, soft law can involve ambiguity and no ‘clear effects’. Despite this initial perception, soft law can nevertheless become a useful instrument for clarifying, interpreting and updating rules in certain circumstances (guidelines, memoranda of understanding). The main issue was that soft law requires clarity.

Joe Dunne of EPRS concluded the seminar by reflecting that it is easier to quantify the costs of better law-making than to assess the benefits, however positive. The seminar served to underline that the achievement of a new Interinstitutional Agreement was a success in its own right.