Memorandum submitted by Mr David Harrison,
Deputy Director of the Council on European Responsibilities (COEUR)
THE RE-ORGANISATION OF EUROPE: LAW MAKING
AND POLICY MAKING IN AN ENLARGED EU
"The Union has been an economic organisation
searching in vain for a political identity": Financial
Times: 5 October 2001
The key to making progress in a future enlarged
EU may be to draw a clearer distinction between law making and
policy making. EU laws create rights and obligations which can
directly affect EU citizens, and so be enforced by them in any
local court. Policies are rather different in nature: upstream
of legislation, they may lead to laws being passed, but they normally
aim to shape the behaviour of public authorities in the EU.
The EU has a well developed legislative apparatus,
with a refined system of checks and balances. EU law has evolved
some important doctrines, and is likely to evolve further. By
contrast, the EU has not yet developed a particularly strong policy
making or policy execution apparatus. The EU tends by default
to use law-making machinery to address policy issues. But this
is unnecessarily cumbersome and rigid. Machinery perfectly well
adapted to making laws is not well suited to responding to, and
getting to grips with, fast moving policy problems.
Although there will always be issues requiring
a legislative response, many of the biggest challenges facing
the EU today are of a policy rather than a legal nature. Events
since 11 September 2001 have underscored this. In preparing for
EU enlargement reforms to streamline and make policy making more
effective appear essential. This paper makes some suggestions.
2. EU LAW MAKING
The key features of EU law, whether in primary
form in the Treaties or in the shape of binding secondary legislation
(regulation, directive or decision), are:
It is ultimately justiciable by the
European Court of Justice;
It involves (with the exception of
some legislative powers solely exercised by the Commission) the
familiar classical EU machinery. A Commission proposal is needed
and, for the most part, the co-decision procedure for adopting
laws involves both the Council and the European Parliament as
the two arms of a legislature;
The system of checks and balances
was slightly but not fundamentally altered by the Nice Treaty
and appears likely to be retained in its essentials as the EU
EU law has also seen some important innovations.
Since the founding of the main EU institutions major new legal
doctrines have been created through case law in the Court of Justice.
These include the doctrine of the primacy of EU law over conflicting
national law (which originates from 1964); and the doctrine of
the direct effect of EU law, whereby national courts may apply
EU law as if it was national law (originating from 1962 for Treaty
provisions, and progressively extended to much secondary legislation).
The implications of such doctrines are still being worked out,
including the idea which has been developed since 1991 that member
states should compensate their own nationals for breaches of EU
law. Since 1992 the Commission has had the power to impose fines
on member states which breach Court rulings.
The application of EU law may also be decentralised
to institutions in the member states. This is under active discussion
in certain areas of competition law. Limited Commission resources,
higher volumes of business, the impact of enlargement and greater
familiarity with the key legal concepts are all factors arguing
in favour of authorities in the member states applying EU law,
subject to Commission and Court oversight to ensure a consistent
Indeed, it has been suggested that the member
states' general duty under (what is now) Article 10 of the EC
Treaty to ensure fulfilment of obligations arising out of the
Treaties is "the core of the constitutional law of the Community".
As the EU enlarges further, it seems likely that we shall see
a further evolution in the relationship between national and EU
institutions in applying common laws.
Thus, although the EU law making system may
now be well bedded down, EU case law resulting from the Court
of Justice is very unlikely to stand still. EU law is likely to
become more effective, more far-reaching and more local.
It is against this background that policy making
in the EU should be considered.
3. POLICY MAKING
Policy making is relevant to broad strategy
setting in the EU, and also to such major subjects as foreign
policy, defence and security issues, economic policy coordination
and internal security. In all such matters the action that follows
adoption of a particular policy direction tends to involve public
bodieseither at EU level or else in national administrations
in the member states themselvesundertaking some action.
At the extraordinary European Council on 21 September 2001, for
example, it was decided that the fight against terrorism "will,
more than ever, be a priority objective of the European Union."
The fundamental problem in such cases is frequently not so much
one of drawing up laws but rather one of mobilising resources
in pursuit of a common objective. Laws may follow in some areas
but in others (eg foreign and security policy) this will be less
Effective policy making and effective policy
execution require something rather more binding than inter-governmentalism
and something rather less formal than legislative procedures.
They demand good policies but also a shared sense of purpose.
This is a political rather than a legal or administrative consideration.
What is needed, in effect, is that a new ethos of collective responsibility
should apply in those areas where joint action is undertaken.
The idea of collective responsibility is a pragmatic
constitutional device. It operates within national governments
to ensure that there is a consistent approach by all members of
the government to a diverse range of issues. It can even operate
in coalition governments between differing political parties,
who agree to be bound as the price of retaining power.
At a European level collective responsibility
can be envisaged in carrying out those policies where it is agreed
there should be common action. The implications of this are an
acceptance of mutual support to further a particular goal, or,
at the very least, an acceptance that criticisms of such a policy
should be made in private, but not in public.
4. THE EUROPEAN
Committing and engaging resources for major
policy initiatives at a European level cannot realistically be
done without the support of heads of government. The European
Council is the place where broad strategy is supposed to be set
out ("The European Council shall provide the Union with the
necessary impetus for its development and shall define the general
political guidelines thereof": Article 4 of the Treaty on
European Union). It is also the place where heads of government
have the opportunity to focus on major policy issues and give
politicalrather than legaldirections. (The European
Council is not, formally speaking, an EU institution. Its conclusions
do not normally have the force of law, and nor are they subject
to review by the Court of Justice).
Any attempt to improve policy making in the
EU has to start with the European Council. The importance of many
of today's policy issues, and the fact that they cross so many
national and administrative boundaries, mean that junior Councils
and the apparatus of official machinery cannot sensibly substitute
for such a political authority.
European Councils have in recent years rather
lost their way. In the EU of the Fifteen they are frequently large,
cumbersome, two-day conferences, high profile in nature and attracting
an enormous media presence. Up to 10,000 people may gather (of
whom a tiny proportion are real participants). In the summit meetings
the time taken for discussion of any one subject makes it physically
impossible to do justice to more than about four items on the
first of the two days: while the second day tends to be dominated
by detailed discussion of the technical conclusions produced overnight
by officials. The conclusions themselves are often long and encyclopaedic.
The political authority of EU leaders and any clarity of strategy
tends to be lost in an excess of technical detail, which cannot
be understood by non-experts, or the European public at large.
The European Council could however become much
more forward-looking and strategic in nature. The extraordinary
European Council which was held at short notice on 21 September
2001 after the terrorist atrocities in the United States, and
which produced succinct conclusions and a plan of action, shows
what can be achieved.
Rather than reacting to policy problems thrown
up by technical Councils on a six monthly Presidency-to-Presidency
cycle, EU leaders should themselves as a rule more actively set
the EU policy direction, set their own agenda (including which
technical items they were prepared to discuss), plan the forward
programme of EU business (and review progress), issue only concise
and clear press statements when there is something to say and,
as necessary, give guidance or instructions to national authorities
to pursue agreed European policies.
In this way the European Council would act rather
as a national Cabinet, exercising collective responsibility by
determining forward-looking policy at a European level and co-ordinating
the optimum EU and national response to shifting circumstances.
The European Council would work backwards from the policy objectives
it wanted to address, deploying the most appropriate administrative
response to the case. Having set objectives for the EU, a further
vital task for the European Council would then be to mobilise
public opinion in favour of those objectives.
The practical organisation of business in the
European Council could be improved in a number of ways. The following
are some ideas:
The Presidency of the day should
not handle the European Council solely as the culmination of its
own (short) six-monthly programme but rather as a standing political
authority with long term objectives of its own;
As well as the (probably unavoidable)
formal summits, modern communications should be exploited to create
permanent links between EU leaders and their offices, to allow
the despatch of all business not requiring physical meetings.
Fixed periods in the week or month might then be allotted to dealing
with "European Council business";
Only major strategic and policy questions
should be considered at European Council level. A filter mechanism
(involving either ministers or officials) may need to ensure this;
When there are meetings these should
be held with the maximum informality and the minimum participation
by non members (other ministers, officials etc);
Conclusions, if any, should briefly
reflect what has been discussed, and not attempt to comment on
all current issues. (The conclusions and plan of action of the
extraordinary European Council on 21 September 2001 are a model
in this respect). Conclusions could be combined with explanatory
press statements, as necessary.
If the European Council worked more effectively
as the EU's political authority it would be possible to reorganise
and streamline the existing Council structure. A distinction could
again be made here between law making and policy-making.
The law making function of the Council is already
part of the legislative system described above. In the adoption
of legislation there is a good case for putting matters on a more
formal footing and making Council sessions open to the public.
Such sessions need not be very frequent: indeed, the Council as
a legislative body need only meet as and when there is legislation
to consider. The number of meetings and the different types of
subject Council could almost certainly be reduced as EU enlargement
The policy making function of the Council could
be handled differently. For this function ministerial policy groups
would become in effect sub-committees of the European Council,
handling for example economic policy, foreign policy, or internal
affairs. Ministerial policy meetings would be reorganised around
the subject matter, including using communications technology
to avoid mass travel and retain privacy of discussion. Ministerial
policy making groups should have many fewer participants than
legislative Councils, to encourage informality and effectiveness.
Operating under an overall principle of collective
responsibility, Ministerial policy groups would have responsibility
delegated to them by the European Council to pursue certain objectives.
The means of doing so would be up to them. Public authorities
in the member states, in various types of configuration, could
be instructed to carry out delegated tasks. Where EU authorities
exist, tasks would be carried out in association with them.
Although it may be that in practice ministers
would normally tend to oversee the implementation of strategies
set by the European Council, in principle there is no reason why
the European Council could not also delegate responsibility to
carry out specific tasks to other groups and entities. This could
include for example economic coordination among those ministers
belonging to the euro-group; ad hoc task forces of public
bodies of various member states to carry out particular objectives;
possibly the establishment of specialist agencies to undertake
technical work (in, say, the defence field); and possibly even
delegated responsibility to one member state or one individual
to act on behalf of the EU as a whole (in, say, conducting a delicate
The delegation of responsibility to certain
member states to carry out tasks on behalf of the EU as a whole
may be the answer to fears by some member states of a directoire
of large member states dominating the EU. In matters that do not
require the resources of a large state there is no reason why
a smaller member state should not be asked to act for all.
6. THE ROLE
The Commission has a unique role that straddles
both law making and policy making. It has sole authority to propose
laws, and the President of the Commission is also a member of
the European Council. If at any point a matter of policy requires
legislation to achieve its objectives it is the Commission which
draws up the draft legislation, consults experts, and launches
the process involving the Council and Parliament which leads to
binding laws being adopted. At the same time the President of
the Commission is in a position to influence the policy agenda
in the European Council, and if he is astute will be able to work
within a policy consensus to ensure legislation is adopted. Drawing
on the expertise of the Commission services the President of the
Commission may be able to take a longer term view of some policy
issues than other members of the European Council. In addition,
there are certain fields (eg external trade) where the Commission
is solely competent to represent the EU.
Should the Commission have sole responsibility
for initiating policy as well as legislation? Article 211 of the
EC Treaty gives the Commission wide ranging powers "to ensure
the proper functioning and development of the common market".
Should such powers go wider?
There are good reasons why the Commission should
not have the monopoly of initiating all policy as well as legislation.
Perhaps the main one is that in matters of policy which are outside
normal EU competence it is the administrative machinery of the
member states which is necessarily involved in execution. The
political authority of EU leaders is required to commit resources
in the member states, which are collectively very much greater
than resources available to the Commission. EU leaders, in adopting
policies, are accountable to their own electorates. To engage
public opinion in the member states and to ensure that national
administrations act in a coherent manner under a principle of
collective responsibility requires a shared input into the policy
In practice policies will originate from many
different sources. The European body politic is extremely fertile.
Rather than nominating any one entity as the monopoly provider
the EU should encourage a competition of ideas. These can come
from within the public sector (at both national and European level)
and from outside it (from political parties, academic institutions
and think tanks). The European Council will only be able to act
when policies are sufficiently thought through, and the Commission
may be in a better position than most to suggest these.
7. THE ROLE
Making a distinction between law making and
policy making may help resolve the longstanding problem of how
to fit national parliaments into the institutional architecture.
If legislation remains the domain of the European Parliament,
the debate about policy could become the domain of national parliaments.
The mobilisation of resources of the member states will have implications
for national budgets, and these remain subject to the oversight
of national parliaments. Equally, economic policy coordination
involves fiscal rules which are also their concern.
Various methods of integrating national parliaments
into the EU order are under review (eg a new senate, a new second
chamber, dedicated committees from national parliaments). Whichever
method is chosen the objective should be to create a system whereby
new pan-European policy issues which affect all the member states
can properly be analysed and debated. Issues as diverse as public
services, crime, education and economic policy which are in fact
common to each member state could for the first time be considered
in a pan-European context. Out of such a debate the best policy
responses should emerge, which could then be recommended to the
Commission and the European Council.
This paper does not advocate dismantling the
Community method. On the contrary, it suggests building on it
as a foundation to allow the EU to engage properly in new political
areas beyond the conventional EU spheres. The shift in accent
from economic to political issues coincides with enlargement,
requiring a rethink of working habits. Events since 11 September
2001 have also provided a spur. In national political systems
policy making and law making are distinct functions, and the time
may have come to recognise this distinction at an EU level. Policies
may lead to legislation, but in some major new areas (such as
macroeconomic policy, and foreign and defence policy) legislation
is unlikely to be the most useful instrument to be deployed. That
does not mean the EU should be inert.
There is no inherent conflict between national
and European systems of democracy. Both serve the same European
society and body politic. They serve the same people, in other
words. A better organised policy function could help bring both
European and national systems of democracy together, to the benefit
3 David Harrison is the author of The Organisation
of Europe (Routledge 1996, London and New York) and Deputy Director
of the Council on European Responsibilities (COEUR), on whose
behalf he produced the report "The European Council: Relaunching
Europe's Political Authority" in 2000. He writes this article
in a personal capacity. Back
Dr John Temple Lang: "The Core of the Constitutional Law
of the Community: Article 5, EC Treaty" (1995) (www.europa.eu.int/comm/competition/speeches). Back