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2007/2028(INI) Institutional and legal implications of the use of 'soft law' instruments

Progress: Procedure completed

RoleCommitteeRapporteurShadows
Lead JURI MEDINA ORTEGA Manuel (icon: PSE PSE)
Committee Opinion IMCO SCHWAB Andreas (icon: PPE-DE PPE-DE)
Committee Opinion CULT GRAÇA MOURA Vasco (icon: PPE-DE PPE-DE)
Committee Opinion AFCO DIMITROV Philip Dimitrov (icon: PPE-DE PPE-DE)
Lead committee dossier:
Legal Basis:
RoP 54

Events

2007/10/24
   EC - Commission response to text adopted in plenary
Documents
SP(2007)5402
2007/10/18
   EC - Commission response to text adopted in plenary
Documents
SP(2007)5401
2007/09/04
   EP - Results of vote in Parliament
Documents
Results of vote in Parliament
2007/09/04
   EP - Decision by Parliament
Details

The European Parliament adopted a resolution based on the own-initiative report drafted by Manuel MEDINA ORTEGA (PES, ES) and on the institutional and legal implications of the use of 'soft law' instruments. It considered that, in the context of the Community, soft law often constituted an ambiguous and ineffective instrument which was liable to have a detrimental effect on Community legislation and institutional balance. It should be used with caution , even where it was provided for in the Treaty. Soft law could not be a substitute for legal acts and instruments, which were available to ensure the continuity of the legislative process, especially in the field of culture and education. Parliament stressed that each EU institution, including the European Council, must consider both legislative and non-legislative options when deciding, on a case-by-case basis, what action, if any, to take.

Parliament further considered the open method of coordination to be legally dubious, as it operated without sufficient parliamentary participation and judicial review. It should be employed only in exceptional cases and Parliament should become involved in the procedure.

Parliament deplored the use of soft law by the Commission where it was a surrogate for EU legislation that was still necessary per se, or where it extrapolated the case-law of the Court of Justice into uncharted territory. It urged the Commission to make a particular effort to guarantee transparency and public accountability in the process of adopting non-binding Community acts, as well as to increase the use of impact assessment in the decision-making process. The institutions were asked to refrain from adopting soft-law instruments when draft legislative acts are under consideration. The Commission should give special consideration to the effect of soft law on consumers and their possible means of redress before proposing any measure involving soft-law instruments.

As regards Commission communications , green and white papers did not give rise to any direct legal obligations. However, the adoption of consultation papers and political declarations of intent should not be seen as implying any legal obligation to enact the corresponding regulations. Whilst the Commission interpretative communications serve the legitimate purpose of providing legal certainty, their role should not extend beyond that point. When they serve to impose new obligations, interpretative communications constitute an inadmissible extension of law-making by soft law. When a communication laid down detailed arrangements not directly provided for by the freedoms established under the Treaty, it was departing from its proper purpose and was thus null and void. Communications satisfying the criteria referred to above should consequently be issued only in those cases where Parliament and the Council, in other words the legislature, had instructed the Commission to draw up the necessary interpretative communications. Parliament considered that translating the Treaty into reality was the responsibility of the legislature and that its interpretation was the responsibility of the Court of Justice.

Standardisation and codes of conduct were important elements of self-regulation. However, standardisation must not lead to overregulation and constitute an additional burden for small and medium-sized enterprises in particular. The legal bases concerned should incorporate built-in safeguards against overregulation.

Parliament went on to point out that, whereas it was legitimate for the Commission to make use of pre-legislative instruments, the pre-legislative process should not be abused nor unduly protracted. In areas such as the contract-law project , a point must come where the Commission decided whether or not to use its right of initiative and on what legal basis.

Parliament, as the only democratically elected Community institution, was not currently consulted about the use of so-called soft-law instruments, such as Commission recommendations, based on Article 211 of the EC Treaty, and interpretative communications. Parliament called on the Commission to develop a modus operandi that guaranteed the participation of the democratically elected bodies including, possibly, by means of an interinstitutional agreement, and thus more effective monitoring of the need for the adoption of 'soft-law' instruments. Such an agreement should, in particular, aim to resolve the contradiction that has arisen as a result of the rules in Articles 211, 249(5) and 230 of the EC Treaty and in the case-law of the European Court of Justice, when the Court requires the national courts to take due account in current legal disputes of recommendations which are per se non-binding under the Treaty.

Lastly, Parliament stressed that the expression of soft law, as well as its invocation, should be avoided at all times in any official documents of the European institutions.

Documents
T6-0366/2007
2007/09/04
   EP - End of procedure in Parliament
2007/09/03
   EP - Debate in Parliament
Documents
Debate in Parliament
2007/06/28
   EP - Committee report tabled for plenary, single reading
Documents
A6-0259/2007
2007/06/28
   EP - Committee report tabled for plenary
Documents
A6-0259/2007
2007/06/25
   EP - Vote in committee
Details

The Committee on Legal Affairs unanimously adopted a report drawn up by Manuel MEDINA ORTEGA (PES, Spain) on the institutional and legal implications of the use of 'soft law' instruments. It considered that, in the context of the Community, soft law often constituted an ambiguous and ineffective instrument which was liable to have a detrimental effect on Community legislation and institutional balance. It should be used with caution, even where it was provided for in the Treaty. The Committee further considered the open method of coordination to be legally dubious, as it operated without sufficient parliamentary participation and judicial review. It should be employed only in exceptional cases and Parliament should become involved in the procedure.

The Committee deplored the use of soft law by the Commission where it was a surrogate for EU legislation that was still necessary per se, or where it extrapolated the case-law of the Court of Justice into uncharted territory. The institutions were urged to refrain from adopting soft-law instruments when draft legislative acts are under consideration. The Commission should give special consideration to the effect of soft law on consumers and their possible means of redress before proposing any measure involving soft-law instruments.

As regards Commission communications , green and white papers did not give rise to any direct legal obligations. However, the adoption of consultation papers and political declarations of intent should not be seen as implying any legal obligation to enact the corresponding regulations. Whilst the Commission interpretative communications serve the legitimate purpose of providing legal certainty, their role should not extend beyond that point. When they serve to impose new obligations, interpretative communications constitute an inadmissible extension of law-making by soft law. When a communication laid down detailed arrangements not directly provided for by the freedoms established under the Treaty, it was departing from its proper purpose and was thus null and void. Communications satisfying the criteria referred to above should consequently be issued only in those cases where Parliament and the Council, in other words the legislature, had instructed the Commission to draw up the necessary interpretative communications. The Committee considered that translating the Treaty into reality was the responsibility of the legislature and that its interpretation was the responsibility of the Court of Justice.

Standardisation and codes of conduct were important elements of self-regulation. However, standardisation must not lead to overregulation and constitute an additional burden for small and medium-sized enterprises in particular. The legal bases concerned should incorporate built-in safeguards against overregulation.

Parliament, as the only democratically elected Community institution, was not currently consulted about the use of so-called soft-law instruments, such as Commission recommendations, based on Article 211 of the EC Treaty, and interpretative communications. The Committee called on the Commission to develop a modus operandi that guaranteed the participation of the democratically elected bodies including, possibly, by means of an interinstitutional agreement, and thus more effective monitoring of the need for the adoption of 'soft-law' instruments. Such an agreement should, in particular, aim to resolve the contradiction that has arisen as a result of the rules in Articles 211, 249(5) and 230 of the EC Treaty and in the case-law of the European Court of Justice, when the Court requires the national courts to take due account in current legal disputes of recommendations which are per se non-binding under the Treaty.

2007/06/19
   EP - Committee opinion
Documents
PE388.722
2007/06/08
   EP - Committee opinion
Documents
PE386.709
2007/05/03
   EP - Committee opinion
Documents
PE386.644
2007/03/15
   EP - Committee draft report
Documents
PE386.366
2007/03/01
   EP - SCHWAB Andreas (PPE-DE) appointed as rapporteur in IMCO
2007/03/01
   EP - DIMITROV Philip Dimitrov (PPE-DE) appointed as rapporteur in AFCO
2007/02/27
   EP - GRAÇA MOURA Vasco (PPE-DE) appointed as rapporteur in CULT
2007/02/15
   EP - Committee referral announced in Parliament
2007/02/15
   EP - Referral to associated committees announced in Parliament
2006/12/18
   EP - MEDINA ORTEGA Manuel (PSE) appointed as rapporteur in JURI

Documents

Activities

History

(these mark the time of scraping, not the official date of the change)

2023-08-03Show (17) Changes | Timetravel
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2021-12-18Show (15) Changes | Timetravel
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Rules of Procedure EP 54
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2020-01-19Show (13) Changes | Timetravel
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2019-07-06Show (18) Changes | Timetravel
activities
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  • date: 2007-04-11T00:00:00 docs: title: PE388.331 type: Amendments tabled in committee body: EP
  • date: 2007-05-03T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE386.644&secondRef=02 title: PE386.644 committee: AFCO type: Committee opinion body: EP
  • date: 2007-06-08T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE386.709&secondRef=02 title: PE386.709 committee: IMCO type: Committee opinion body: EP
  • date: 2007-06-19T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE388.722&secondRef=02 title: PE388.722 committee: CULT type: Committee opinion body: EP
  • date: 2007-06-28T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A6-2007-259&language=EN title: A6-0259/2007 type: Committee report tabled for plenary, single reading body: EP
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  • date: 2007-02-15T00:00:00 type: Committee referral announced in Parliament, 1st reading/single reading body: EP
  • date: 2007-02-15T00:00:00 type: Referral to associated committees announced in Parliament body: EP
  • date: 2007-06-25T00:00:00 type: Vote in committee, 1st reading/single reading body: EP summary: The Committee on Legal Affairs unanimously adopted a report drawn up by Manuel MEDINA ORTEGA (PES, Spain) on the institutional and legal implications of the use of 'soft law' instruments. It considered that, in the context of the Community, soft law often constituted an ambiguous and ineffective instrument which was liable to have a detrimental effect on Community legislation and institutional balance. It should be used with caution, even where it was provided for in the Treaty. The Committee further considered the open method of coordination to be legally dubious, as it operated without sufficient parliamentary participation and judicial review. It should be employed only in exceptional cases and Parliament should become involved in the procedure. The Committee deplored the use of soft law by the Commission where it was a surrogate for EU legislation that was still necessary per se, or where it extrapolated the case-law of the Court of Justice into uncharted territory. The institutions were urged to refrain from adopting soft-law instruments when draft legislative acts are under consideration. The Commission should give special consideration to the effect of soft law on consumers and their possible means of redress before proposing any measure involving soft-law instruments. As regards Commission communications , green and white papers did not give rise to any direct legal obligations. However, the adoption of consultation papers and political declarations of intent should not be seen as implying any legal obligation to enact the corresponding regulations. Whilst the Commission interpretative communications serve the legitimate purpose of providing legal certainty, their role should not extend beyond that point. When they serve to impose new obligations, interpretative communications constitute an inadmissible extension of law-making by soft law. When a communication laid down detailed arrangements not directly provided for by the freedoms established under the Treaty, it was departing from its proper purpose and was thus null and void. Communications satisfying the criteria referred to above should consequently be issued only in those cases where Parliament and the Council, in other words the legislature, had instructed the Commission to draw up the necessary interpretative communications. The Committee considered that translating the Treaty into reality was the responsibility of the legislature and that its interpretation was the responsibility of the Court of Justice. Standardisation and codes of conduct were important elements of self-regulation. However, standardisation must not lead to overregulation and constitute an additional burden for small and medium-sized enterprises in particular. The legal bases concerned should incorporate built-in safeguards against overregulation. Parliament, as the only democratically elected Community institution, was not currently consulted about the use of so-called soft-law instruments, such as Commission recommendations, based on Article 211 of the EC Treaty, and interpretative communications. The Committee called on the Commission to develop a modus operandi that guaranteed the participation of the democratically elected bodies including, possibly, by means of an interinstitutional agreement, and thus more effective monitoring of the need for the adoption of 'soft-law' instruments. Such an agreement should, in particular, aim to resolve the contradiction that has arisen as a result of the rules in Articles 211, 249(5) and 230 of the EC Treaty and in the case-law of the European Court of Justice, when the Court requires the national courts to take due account in current legal disputes of recommendations which are per se non-binding under the Treaty.
  • date: 2007-06-28T00:00:00 type: Committee report tabled for plenary, single reading body: EP docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A6-2007-259&language=EN title: A6-0259/2007
  • date: 2007-09-03T00:00:00 type: Debate in Parliament body: EP docs: url: http://www.europarl.europa.eu/sides/getDoc.do?secondRef=TOC&language=EN&reference=20070903&type=CRE title: Debate in Parliament
  • date: 2007-09-04T00:00:00 type: Results of vote in Parliament body: EP docs: url: https://oeil.secure.europarl.europa.eu/oeil/popups/sda.do?id=13809&l=en title: Results of vote in Parliament
  • date: 2007-09-04T00:00:00 type: Decision by Parliament, 1st reading/single reading body: EP docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2007-366 title: T6-0366/2007 summary: The European Parliament adopted a resolution based on the own-initiative report drafted by Manuel MEDINA ORTEGA (PES, ES) and on the institutional and legal implications of the use of 'soft law' instruments. It considered that, in the context of the Community, soft law often constituted an ambiguous and ineffective instrument which was liable to have a detrimental effect on Community legislation and institutional balance. It should be used with caution , even where it was provided for in the Treaty. Soft law could not be a substitute for legal acts and instruments, which were available to ensure the continuity of the legislative process, especially in the field of culture and education. Parliament stressed that each EU institution, including the European Council, must consider both legislative and non-legislative options when deciding, on a case-by-case basis, what action, if any, to take. Parliament further considered the open method of coordination to be legally dubious, as it operated without sufficient parliamentary participation and judicial review. It should be employed only in exceptional cases and Parliament should become involved in the procedure. Parliament deplored the use of soft law by the Commission where it was a surrogate for EU legislation that was still necessary per se, or where it extrapolated the case-law of the Court of Justice into uncharted territory. It urged the Commission to make a particular effort to guarantee transparency and public accountability in the process of adopting non-binding Community acts, as well as to increase the use of impact assessment in the decision-making process. The institutions were asked to refrain from adopting soft-law instruments when draft legislative acts are under consideration. The Commission should give special consideration to the effect of soft law on consumers and their possible means of redress before proposing any measure involving soft-law instruments. As regards Commission communications , green and white papers did not give rise to any direct legal obligations. However, the adoption of consultation papers and political declarations of intent should not be seen as implying any legal obligation to enact the corresponding regulations. Whilst the Commission interpretative communications serve the legitimate purpose of providing legal certainty, their role should not extend beyond that point. When they serve to impose new obligations, interpretative communications constitute an inadmissible extension of law-making by soft law. When a communication laid down detailed arrangements not directly provided for by the freedoms established under the Treaty, it was departing from its proper purpose and was thus null and void. Communications satisfying the criteria referred to above should consequently be issued only in those cases where Parliament and the Council, in other words the legislature, had instructed the Commission to draw up the necessary interpretative communications. Parliament considered that translating the Treaty into reality was the responsibility of the legislature and that its interpretation was the responsibility of the Court of Justice. Standardisation and codes of conduct were important elements of self-regulation. However, standardisation must not lead to overregulation and constitute an additional burden for small and medium-sized enterprises in particular. The legal bases concerned should incorporate built-in safeguards against overregulation. Parliament went on to point out that, whereas it was legitimate for the Commission to make use of pre-legislative instruments, the pre-legislative process should not be abused nor unduly protracted. In areas such as the contract-law project , a point must come where the Commission decided whether or not to use its right of initiative and on what legal basis. Parliament, as the only democratically elected Community institution, was not currently consulted about the use of so-called soft-law instruments, such as Commission recommendations, based on Article 211 of the EC Treaty, and interpretative communications. Parliament called on the Commission to develop a modus operandi that guaranteed the participation of the democratically elected bodies including, possibly, by means of an interinstitutional agreement, and thus more effective monitoring of the need for the adoption of 'soft-law' instruments. Such an agreement should, in particular, aim to resolve the contradiction that has arisen as a result of the rules in Articles 211, 249(5) and 230 of the EC Treaty and in the case-law of the European Court of Justice, when the Court requires the national courts to take due account in current legal disputes of recommendations which are per se non-binding under the Treaty. Lastly, Parliament stressed that the expression of soft law, as well as its invocation, should be avoided at all times in any official documents of the European institutions.
  • date: 2007-09-04T00:00:00 type: End of procedure in Parliament body: EP
links
other
  • body: EC dg: url: http://ec.europa.eu/dgs/legal_service/ title: Legal Service commissioner: BARROSO José Manuel
procedure/dossier_of_the_committee
Old
JURI/6/45751
New
  • JURI/6/45751
procedure/legal_basis/0
Rules of Procedure EP 052
procedure/legal_basis/0
Rules of Procedure of the European Parliament EP 052
procedure/subject
Old
  • 4.60.06 Consumers' economic and legal interests
  • 7.40.02 Judicial cooperation in civil and commercial matters
  • 8.50.01 Implementation of EU law
New
4.60.06
Consumers' economic and legal interests
7.40.02
Judicial cooperation in civil and commercial matters
8.50.01
Implementation of EU law
2014-11-10Show (5) Changes
activities
  • date: 2007-02-15T00:00:00 body: EP type: Committee referral announced in Parliament, 1st reading/single reading committees: body: EP responsible: False committee: AFCO date: 2007-03-01T00:00:00 committee_full: Constitutional Affairs (Associated committee) rapporteur: group: PPE-DE name: DIMITROV Philip Dimitrov body: EP responsible: False committee: CULT date: 2007-02-27T00:00:00 committee_full: Culture and Education rapporteur: group: PPE-DE name: GRAÇA MOURA Vasco body: EP responsible: False committee: IMCO date: 2007-03-01T00:00:00 committee_full: Internal Market and Consumer Protection rapporteur: group: PPE-DE name: SCHWAB Andreas body: EP responsible: True committee: JURI date: 2006-12-18T00:00:00 committee_full: Legal Affairs (Associated committee) rapporteur: group: PSE name: MEDINA ORTEGA Manuel
  • date: 2007-06-25T00:00:00 body: EP committees: body: EP responsible: False committee: AFCO date: 2007-03-01T00:00:00 committee_full: Constitutional Affairs (Associated committee) rapporteur: group: PPE-DE name: DIMITROV Philip Dimitrov body: EP responsible: False committee: CULT date: 2007-02-27T00:00:00 committee_full: Culture and Education rapporteur: group: PPE-DE name: GRAÇA MOURA Vasco body: EP responsible: False committee: IMCO date: 2007-03-01T00:00:00 committee_full: Internal Market and Consumer Protection rapporteur: group: PPE-DE name: SCHWAB Andreas body: EP responsible: True committee: JURI date: 2006-12-18T00:00:00 committee_full: Legal Affairs (Associated committee) rapporteur: group: PSE name: MEDINA ORTEGA Manuel type: Vote in committee, 1st reading/single reading
  • date: 2007-06-28T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A6-2007-259&language=EN type: Committee report tabled for plenary, single reading title: A6-0259/2007 body: EP type: Committee report tabled for plenary, single reading
  • date: 2007-09-03T00:00:00 docs: url: http://www.europarl.europa.eu/sides/getDoc.do?secondRef=TOC&language=EN&reference=20070903&type=CRE type: Debate in Parliament title: Debate in Parliament body: EP type: Debate in Parliament
  • date: 2007-09-04T00:00:00 docs: url: http://www.europarl.europa.eu/oeil/popups/sda.do?id=13809&l=en type: Results of vote in Parliament title: Results of vote in Parliament url: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2007-366 type: Decision by Parliament, 1st reading/single reading title: T6-0366/2007 body: EP type: Results of vote in Parliament
committees
  • body: EP responsible: False committee: AFCO date: 2007-03-01T00:00:00 committee_full: Constitutional Affairs (Associated committee) rapporteur: group: PPE-DE name: DIMITROV Philip Dimitrov
  • body: EP responsible: False committee: CULT date: 2007-02-27T00:00:00 committee_full: Culture and Education rapporteur: group: PPE-DE name: GRAÇA MOURA Vasco
  • body: EP responsible: False committee: IMCO date: 2007-03-01T00:00:00 committee_full: Internal Market and Consumer Protection rapporteur: group: PPE-DE name: SCHWAB Andreas
  • body: EP responsible: True committee: JURI date: 2006-12-18T00:00:00 committee_full: Legal Affairs (Associated committee) rapporteur: group: PSE name: MEDINA ORTEGA Manuel
links
other
  • body: EC dg: url: http://ec.europa.eu/dgs/legal_service/ title: Legal Service commissioner: BARROSO José Manuel
procedure
dossier_of_the_committee
JURI/6/45751
reference
2007/2028(INI)
title
Institutional and legal implications of the use of 'soft law' instruments
legal_basis
Rules of Procedure of the European Parliament EP 052
stage_reached
Procedure completed
subtype
Initiative
type
INI - Own-initiative procedure
subject
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