Co-actorship in the Development of European Law-Making: The Quality of European Legislation and its Implementation and Application in the National Legal Order

by Ernst M. H. Hirsch Ballin , Linda A. J. Senden

• ISBN13: 9789067041843
• ISBN10: 906704184X
• Edition: CD
• Format: Hardcover
• Copyright: 2005-06-13
• Publisher: T.M.C. Asser Press

Summary

In June 2004, the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union organised a two-day colloquium in The Hague, during which the quality of European legislation was discussed by representatives of the 25 Member States of the EU as well as of the Court of Justice for the EC. This book is based on, amongst other things, the General Report from that colloquium, the various national reports, and reports prepared by members of the Court of Justice and the Court of First Instance. More specifically the book deals with, inter alia, the European and national legislative process; the preliminary rulings procedure as a tool and as a source for the application of European law; and the connecting links between the EU and the national legal systems.

Table of Contents

Preface	v
List of abbreviations	x
Part I Reflections on Co-Actorship in the Development of European Law-Making
ERNST M.H. HIRSCH BALLIN
1. Introduction	3	(1)
2. The constitutional framework	4	(2)
3. The sui generis nature of the EU's legislative procedures	6	(4)
4. Co-actorship	10	(1)
5. What determines the quality of European legislation?	10	(3)
6. EU law-making is not just a matter for European institutions	13	(2)
7. The role of the Councils of State	15	(2)
8. The contribution of the national courts to the quality of European legislation and its application	17	(2)
9. The quality of the interconnections	19	(2)
10. Practising co-actorship	21	(6)
Part II General Report. The Quality of European Legislation and Its Implementation and Application in the National Legal Order
LINDA A.J. SENDEN
Chapter 1 INTRODUCTION
1. The approach chosen	27	(2)
2. Defining the quality issues in relation to European legislation	29	(6)
Chapter 2 INTERPRETATION OF EUROPEAN LEGISLATION IN THE MEMBER STATES
1. The interpretation problems	35	(1)
1.1 The nature and causes of interpretation problems	35	(1)
1.2 The new hierarchy and typology of European legal instruments	42	(1)
1.2.1 Problems connected to the present system of European legal instruments	43	(1)
1.2.2 Introduction of a new hierarchy of norms and typology of legal acts	45	(1)
1.2.3 Problems connected to the use of other instruments	47	(3)
1.3 Implementation techniques: the relation between transposition and application	50	(1)
1.3.1 General observations	50	(1)
1.3.2 National approaches	51	(11)
1.4 Case study: transposing and applying the Bird and Habitat Directives and the Sixth VAT Directive	62	(1)
1.4.1 The Sixth VAT Directive	62	(1)
1.4.2 The Bird and Habitat Directives	67	(6)
2. Dealing with interpretation problems	73	(1)
2.1 Ex ante examination of European legislation	74	(1)
2.2 The use of interpretation aids	78	(1)
2.2.1 The approach in the case law of the ECJ	78	(1)
2.2.2 Transparency and travaux préparatoires	81	(1)
2.2.3 Preamble	87	(1)
2.2.4 Statements in the minutes of the Council	88	(1)
2.2.5 Commission documents	89	(1)
2.3 Recourse to different language versions	90	(1)
2.3.1 Approach of the ECJ in the case of linguistic divergences	91	(1)
2.3.2 National approaches	81	(13)
2.4 Recourse to consistent interpretation and reliance on direct effect	94	(1)
2.5 Recourse to the preliminary rulings procedure	96	(1)
2.5.1 Use	96	(1)
2.5.2 Aims	100	(1)
2.6 What kind of cooperation and consultation - informal or institutionalised?	101	(1)
3. Attaching consequences to interpretation errors	102	(1)
3.1 Ex post examination of legislation	103	(1)
3.2 National repair mechanism: the liability of national legislatures and courts	110	(1)
3.3 Revision possibility in the case of liability of the national court	114	(1)
3.4 Possible European repair mechanisms	116	(3)
Chapter 3 CONCLUSIONS AND SOLUTIONS
1. The main conclusions	119	(3)
2. Improving the transparency of and advice on European legislation	122	(5)
3. Establishing best practices and cooperation on implementation	127	(3)
4. Effective cooperation in the Preliminary Rulings Procedure	130	(1)
4.1 General observations	130	(1)
4.2 Flexibilising the CILFIT criteria	134	(1)
4.3 Referral only if a decision so requires	137	(1)
4.4 Introducing a 'filter' mechanism	138	(1)
4.5 The national court providing an answer	141	(1)
4.6 Introducing a 'green and/or red light' approach	143	(1)
4.7 Introducing a kind of system of leave to appeal	147	(1)
4.8 Improving contacts between the highest national courts and the ECJ	149	(1)
4.9 Other possible solutions, in particular reorganisation of the Court's procedures	153	(4)
5. Some final observations on the cycle of European and national law-making, connecting links and co-actorship	157
Annexes
Annex 1: Questionnaire	163
Annex 2: Articles I-33 to I-37 of the Treaty Establishing a Constitution for Europe