Soft law, self-regulation and co-regulation in european law: Where Do They Meet?

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Electronic Journal of Comparative Law, vol. 9.1 (January 2005),

Linda Senden2

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Over the past decade, the EU has been developing a new regulatory policy, which increasingly puts emphasis on the use of alternative instruments or on instruments that are complementary to traditional command-and-control legislation. This aim of diversification of the Union’s regulatory instruments is fundamentally inspired by the concern to enhance the effectiveness, legitimacy and transparency of EU action. These alternative instruments - including inter alia recommendations and voluntary agreements - are often labelled with the general terms of ‘soft law’, ‘self-regulation’ and/or ‘co-regulation’. This article is aimed at providing a general insight into the meaning which these concepts currently have within the context of the EU; it discusses the legal framework for the use thereof and touches upon some possible effects in terms of legitimacy. Furthermore, it addresses the interconnectedness of the phenomenon of soft law on the one hand and of self-regulation and co-regulation on the other. In this respect, particular attention is given to the course taken within the framework of the White Paper on European Governance 2001, the 2002 Commission Action plan ‘Simplifying and improving the regulatory environment, the Interinstitutional Agreement on better law-making of 2003 and the Treaty establishing a Constitution for Europe adopted by the Member States in 2004.

1. Introduction

2. The two pillars of the Union’s legislative policy

2.1 The development of a ‘new legislative culture’

2.2 The first pillar: ‘Do less in order to do better’

2.3 The second pillar: Diversification of modes of governance

2.4 The underlying aim of enhancing the Union’s legitimacy

3. The legal framework for European self-regulation and co-regulation

3.1 Conceptualising European self-regulation and co-regulation

3.2 Some important manifestations of European self-regulation and co-regulation

3.3 The development of a general legal framework: The Interinstitutional Agreement on better law-making

3.4 Effects in terms of legitimacy

4. Interconnectedness with Community soft law

4.1 The concept, classification and functions of Community soft law

4.2 The case of recommendations and their link with self-regulation

5. Concluding remarks

1. Introduction
In 1998, the Conclusions of the ECOFIN Council Meeting of 1 December 1997 concerning taxation policy were published, to which was attached the ‘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’.3 In the later adopted Communication from the Commission ‘Tax Policy in the European Union - Priorities for the years ahead’, it was stated more generally that ‘the use of non-legislative approaches or “soft legislation” may be an additional means of making progress in the tax field’. Reference is made in this respect to instruments such as communications, recommendations, guidelines and notices.4

More recently, on 1 October 2004, the European Advertising Standards Alliance (EASA) presented its new code of conduct to a group of Commission officials, consumer groups and trade associations. This code of conduct is said to provide ‘basic principles in ethical standards for advertising’ and it states that self-regulation ‘can provide appropriate redress for consumers, a level playing field for advertisers, and a significant step towards completing the Single Market’.5

The above examples raise the basic question as to how the use of such soft law and self-regulation instruments fit into the broader European legislative and regulatory framework. To begin with, it can be observed that, by the end of the last decade, the European Commission started a more fundamental debate on better EU governance, which was very much inspired by the institutional crisis witnessed by the Commission in 1998. Better regulation is also a key part of the objective set at the Lisbon European Council Summit in 2000, of making the EU the world´s most competitive knowledge-based economy by 2010.6 In July 2001, the debate culminated in the adoption of a White Paper on European Governance. In essence, this debate centres on the extent to which the traditional - supranational and top-down - Community command-and-control method7 is still the right way to proceed, and what new forms of European governance - intergovernmental and non-governmental - should be explored and promoted with a view to ensuring good governance in the EU. More in particular, the White Paper takes as one of its starting points that ‘[t]he Union must renew the Community method by following a less top-down approach and complementing its policy tools more effectively with non-legislative instruments’ and that ‘legislation is often only part of a broader solution combining formal rules with other non-binding tools such as recommendations, guidelines, or even self-regulation within a commonly agreed framework’.8

The Lisbon European Council called on the institutions and the Member States to establish a coordinated strategy for the simplification and improvement of regulation, which was subsequently put forward by the Commission in June 2002 in its Action Plan on ‘Simplifying and improving the regulatory environment’.9 This Action plan deals with a broad range of modes of governance, including in particular the use of soft law (recommendations), co-regulation, voluntary sectoral agreements, benchmarking, peer pressure, networks and the open method of co-ordination. Next, the European Parliament, the Council and the Commission reached an agreement on the conclusion of the Interinstitutional Agreement on better law-making, which was adopted on 16 December 2003. This agreement also addresses the use of alternative methods of regulation. Of particular interest for our purpose is that it sets out, for the first time, the general framework and conditions for the use of co-regulation and self-regulation mechanisms within the EU context. Finally, the issue of simplification of the Union’s legal instruments was also put on the agenda of the European Convention, convened on the basis of the Declaration adopted by the European Council of Laeken.10 Concrete proposals have been made for a redefinition of these instruments in the Treaty establishing a Constitution for Europe,11 on which the EU leaders reached agreement at the European Summit of 17 June 2004 and which was signed in Rome on 29 October 2004.12 All these developments fit in with the more gradual development of a new legislative policy, set in motion already in the second half of the 1980s.

Taking these recent developments as the point of departure, the main aim of this article is to provide a general insight into the meaning of self-regulation, co-regulation and soft-law means and mechanisms within the context of the EU, and to see within what legal framework use is made thereof. It will also touch upon the effects of this framework in terms of legitimacy. This entails that the reasons why, the ways in which and the conditions under which use is made of self-regulation, co-regulation and soft law are investigated (sections 3 and 4). The article also seeks to establish where these alternative modes of European governance meet, or, what connection can be established between the use of soft law, self-regulation and co-regulation in the context of the EU (section 5). The article will start, however, by considering more closely the main foundations of the legislative policy which the EU can be said to now conduct and the alternative modes of governance that fit into this policy (section 2). For it is against this background that the increasing use of self-regulation, co-regulation and soft law is to be regarded.

An observation that needs to be made at this point is that the focus will be on how self-regulation, co-regulation and soft law are used as instruments or modes of governance at the European level, not on how these are used at the national levels as a means of implementing European law into the national legal order. For instance, the question whether the use of national environmental agreements constitutes an appropriate means of implementing an EC directive will not be dealt with here.

2. The two pillars of the Union’s legislative policy
2.1 The development of a ‘new legislative culture’
In an article published in 1986, Bruha and Kindermann concluded that EC legislation was still ‘Terra incognita der Gesetzgebungslehre’. According to these authors, a specific Community theory of legislation or legislative policy had not even started to develop.13 However, the mid-1980s can be seen as a turning point with regard to the way of thinking on European legislation. At that moment in time, the stagnation of the internal market, the national deregulatory tendencies and the criticism of both the quantity and the quality of the body of European legislation constituted a catalyst for the EC to reconsider its legislative task, taking as its starting point the White Paper for the Internal Market of 1985 and the Single European Act of 1986. Further reflections on the existing body of European legislation and new legislation to be adopted and the burden it imposes on national authorities and companies have led to deregulatory and self-regulatory tendencies also at the EC level.

Particularly since the early 1990s it has become clear that European legislative policy rests on two main pillars, which in a sense can be seen as each other’s logical counterparts. The first pillar represents the aim to make less use of the instrument of legislation and to reduce the existing body of European legislation. Improvement of the quality of European legislation is also a point of concern here. The second pillar represents the aim to make more use of other modes of governance or regulation, which are of a less compelling or non-governmental nature. In short, such a policy thus aims, on the one hand, at less and better legislation and, on the other, at more diversified European governance mechanisms. This has brought the European Commission to speaking of a ‘new legislative culture’.14

This culture is very much inspired by the notions of flexibility and differentiation. The concept of flexibility was introduced into the EC Treaty and the EU Treaty in the form of provisions enabling closer cooperation between only a number of Member States. This means that not all the Member States have to agree in order to move forward in respect of a certain matter.15 More interesting for our purposes, however, is that there is an ambition to arrive at flexibility and differentiation not only from a substantive point of view, but also from an institutional or instrumental one, i.e. when it comes to the modes or instruments by which European integration is to be given shape. More generally, the Treaty establishing a Constitution for Europe now states in its Article I-8 that the motto of the Union is ‘United in diversity’. When we look more closely at the purpose of European legislation, it also becomes very clear that uniformity is not always aimed at and that the aim is rather to establish harmonisation or alignment of national law and policy as far as necessary (in particular with a view to realising the internal market). Increasingly, it now appears that such binding harmonisation legislation may not even be considered necessary, but only - non-binding - coordination of national policies.

The pillars of this new legislative policy are also firmly rooted in the principles of subsidiarity and proportionality, laid down in Article 5 EC. The Edinburgh European Council Conclusions, adopted in 1992, demonstrate this, as will be further explained in subsection 2.3.

2.2 The first pillar: ‘Do less in order to do better’
When we look more closely at the way in which the first foundation of the Union’s legislative policy has developed, it becomes clear that simplification and deregulation are the key words for putting the device ‘do less in order to do better’ into practice.16 This was underlined already in the Molitor Report,17 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’. There are thus in fact two sides to this first pillar: a drafting aspect and a policy aspect.

As regards the drafting aspect, numerous proposals have been made18 and initiatives taken by the Community institutions in order to improve the quality of European legislation. In 1997, Declaration no. 39 concerning the quality of the drafting of Community legislation was attached to the Treaty of Amsterdam, pursuant to which the Interinstitutional Agreement on common guidelines for the quality of drafting of Community legislation was adopted on 22 December 1998.19 In legal writing, it has been considered that these guidelines are still rather limited, compared in particular with national guidelines.20 More recently, however, it has also been concluded that the existing European guidelines are essentially the same as the national ones and that the EU shares more or less the drafting philosophy of the Member States. The question no longer is considered to be whether the EC drafting rules as such are sufficient, but rather whether they are sufficiently applied.21

Without going into detail on this, it is clear that the efforts to improve the quality of European legislation continue to be made today. The aforementioned 2002 Commission Action plan ‘Simplifying and improving the regulatory environment’ and the Interinstitutional Agreement on better law-making, published on 31 December 2003,22 already testify of this, as well as the 2003 Commission Communication ‘Updating and simplifying the Community acquis’.23 The Commission considers the Interinstitutional Agreement to be the most ambitious effort undertaken up to now for realising better regulation, by uniting the three decision-making institutions in a joint global strategy to ensure better European lawmaking, while respecting the responsibilities of each institution.24 As will be seen below, this Agreement is also highly important when it comes to the conditions under which self-regulation and co-regulation are considered to be appropriate alternatives to European legislation.

As regards the policy aspect, the striving for deregulation definitively acquired its place at the European level, because it explicitly aims at limiting legislative activity to what is necessary. This aim is given shape in various ways, as regards both existing legislation and new legislation. As regards the existing body of European legislation, an operation of ‘up-dating the stock of existing legislation’ and of ‘reducing the volume of the Community acquis’ has been set in motion,25 entailing not only the consolidation and codification of European legislation but also the removal of obsolete legislation. These initiatives contribute to reducing the complexity of the European body of legislation and to enhancing its accessibility. Consolidation is a semi-official editorial compilation of the various 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 various texts intact. Codification occurs when a formal legal act is adopted, such as a regulation or a directive, on the basis of the prescribed procedures, by which all earlier texts are repealed and replaced by one new text that, in principle at least, does not alter the original contents.26 A major achievement in this respect is the realisation of the Community Customs Code.27 Already in 1994, an interinstitutional agreement was adopted to speed up the process of codification.28

This process involves also repealing those parts of the legislation that have become obsolete or invalid. A first initiative in this respect concerns the SLIM project: Simpler Legislation for the Internal Market. The outcome of this pilot project led the Commission to conclude that the project should be extended to other areas of European law as well, and that European legislation should be screened in a more structural way.29 Given the rather slow progress that was achieved in this respect,30 the Commission set itself a very clear target in 2001 of reducing the volume of the acquis by 25 per cent by the end of 2004, a reduction which corresponds to about 22,500 pages in the Official Journal. In particular as a result of the enlargement process and the translation efforts this entailed for the acquis communautaire, it has recently become clear that this goal is not likely to be reached. Yet, the Commission deems it feasible to realise this ‘within a reasonable period thereafter’.31
2.3 The second pillar: Diversification of modes of 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 Union’s legislative policy. The European Council of Edinburgh laid the basis for this policy in December 1992, making 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 EC 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.32

The application of the principles of subsidiarity and proportionality may further require the preference for other ways of regulation over legislation. More in particular, the Edinburgh European Council 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 European 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, not to regulations.33

Since the European Council of Edinburgh, 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.34 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’. The Treaty establishing a Constitution for Europe also contains such a Protocol (Protocol no. 2), in which it is stated that decisions are to be taken as closely as possible to the citizens. Furthermore, as was observed in the Introduction to this article, in the 2001 White Paper on European Governance, the 2002 Commission Action plan and the 2003 Interinstitutional Agreement on better law-making the determination to resort, where possible, to self-regulation, co-regulation and soft-law instruments and mechanisms has been confirmed.
2.4 The underlying aim of enhancing the Union’s legitimacy
Application of the notions of flexibility and differentiation and of the principles of subsidiarity and proportionality is not an end in itself; this is considered to contribute to enhancing the effectiveness, legitimacy and transparency of Union action. The White Paper on European Governance makes this explicitly clear in respect of differentiation of the Union’s modes of governance and legal instruments.35 It is thus understood that this enables rulemaking closer to the citizen and realisation of the aims of the Lisbon strategy, respectively contributing to the legitimacy and the effectiveness of EU action. Focusing here on the aim of enhancing the Union’s legitimacy, we should first establish what is actually meant by legitimacy before we can consider what effects the use of self-regulation, co-regulation and soft law may have on this.

The notions of ‘democracy’ and ‘rule of law’ are of crucial importance in this respect. Even if the European legal system constitutes a legal order in its own right,36 it is clear that it is based on these notions, just like the national legal systems represented in it.37 This means that not only the existence and division of European power must be acceptable to the citizen but also the exercise thereof.38 Democratic organisation and exercise of power is usually considered to be the basis for this acceptability and hence for the democratic legitimacy of the Union. So, enhancing legitimacy is primarily understood as an effort to increase the influence, control and participation of the European Parliament and, more generally, of the citizen in the European decision-making process.

Yet, acceptability of - the exercise of - state power requires more than that, and in particular reliance on the rule of law. The essence of a state, or any other entity vested with the exercise of government power 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.39 Governing sub lege does not only mean governing on the basis of the law, i.e. that there is a competence-conferring legal basis (the 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 the freedom and liberty of citizens. Governing per lege means that power should be exercised through the adoption of laws, inter alia with a view to ensuring legal certainty and equality.

These requirements must also be considered to apply to the European legal system. Given that this system is founded on the principle of conferred powers, the intention was expressly not to endow it with 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. This principle thus functions as the Community principle of legality and emphasises the limits and control of state power. As such, it reflects the classical, rather formal and procedural, conception of the rule of law, which puts the legitimacy of government action on a par with the legality thereof.

Yet, like in the national legal contexts there has been a shift also in the European legal context from such a classical, liberal conception of the rule of law to a more democratic and social conception, in which the realisation and protection of general principles of law and fundamental rights have increasingly gained attention. Various authors have spoken in this respect of ensuring social legitimacy,40 of legitimacy granted by the rule of law41 and substantive legitimacy.42 Pescatore asserts that true, substantive legitimacy ensues from the 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, i.e. that is best for the general interest. I too understand legitimacy in this broad way, which can in particular be said to imply the duty to ensure good governance, demanding compliance with principles such as legal certainty, equality and legitimate expectations.43

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