Ceremonias

Policy-making and the treaties

The framework for Community policy is formed by the founding treaties. In this connection, a sharp distinction needs to be drawn between the EC Treaty on the one hand, and the ECSC and Euratom Treaties on the other hand. The latter are definitely law-making treaties (traité-loi), in which the policy lines are set out in considerable detail, leaving the Community institutions relatively little scope

Process

for discretion in their implementation. The EC Treaty, on the other hand, is a framework treaty (traité-cadre) which in most cases contains but the broadest outline of the policies to be enacted and implemented. The formulation of policy in this case will entail making hard choices between various policy options, which require careful thought and thorough preparation. Thus when it came to elaborating the Common Agricultural Policy on the basis of the old Article 43 EC Treaty, the policy-makers had several options at their disposal. They could have arrived at a completely different system of agricultural subvention, eg income support rather than price support, whilst remaining fully and legitimately within the scope of Article 43 (now Art 37).

In fact, the only limitation imposed upon the policy-making Community authorities is that the resulting legislation be based on an Article of the Treaty.

Even this requirement, however, can be circumvented in view of the ‘catch-all’

clauses of the EC Treaty: Articles 308, 94, 95 and 293 (ex Arts 235, 100, 100a and 220).

Article 308 (ex Art 235)

This provision was inserted as a safeguard against a situation whereby legislation was necessary in order to attain one of the objectives of the Community, and the Treaty had failed to provide the necessary powers to do so. In such cases, the Council is empowered to take the appropriate measures on a proposal by the Commission, after due consultation of the European Parliament. This provision has proved an extremely flexible way of updating the scope of Community policy without requiring a Treaty revision. Thus when the Community leaders decided at the 1972 Paris summit to include environmental protection within the scope of Community action, Article 308 proved a suitable vehicle and legal basis for such an extension of Community policy.

The use of Article 308 as a legal basis for Community legislation is, however, subject to the supervision of the Court. On a number of occasions the latter has struck down legislation which in its view had wrongly taken Article 308 as its legal base. Thus in Commission v Council,¹the Court held that:

It follows from the very wording of Article 308 that its use as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary powers to adopt the measure in question.

In this particular case, it held that the measure challenged was capable of being adopted under Article 113 EC Treaty, and that the use of Article 308 was unjustified. The measure in question was therefore held to be void.

1 Case 45/86 [1987] ECR 1493.

Articles 94 and 95 (ex Arts 100 and 100a)

Article 94 is an important source of general policy-making in that it requires the Council to issue directives for the approximation of such national laws, regulations and administrative rules as directly affect the establishment or functioning of the common market. It has proved an extremely useful vehicle for harmonising legislation where no specific basis for such harmonisation exists in the Treaty. Article 94 EC Treaty is, however, more restricted in scope than Article 308, in that it restricts the scope of the measures to be adopted to directives.² As a result, directives have become the classic instrument of harmonisation. Since directives are less immediately binding on the Member States’ authorities than regulations, harmonisation has been largely an indirect mechanism, involving as it does the national authorities in the rule-making process. The implications of this factor will be examined more closely in Chapter 4 below.

Article 95 has a somewhat more restricted focus. It was introduced by the SEA and was aimed at assisting the process of enacting all the legislation necessary to complete the achievement of the internal market. It requires the Council to issue harmonising legislation which has as its purpose the establishment and functioning of the internal market (Article 95(1) EC Treaty).

However general in scope Article 95 may appear, it does exclude certain areas.

Fiscal measures, legislation on the free movement of persons and social legislation are excluded from its ambit (Article 95(2) EC Treaty). On the other hand, as regards legislation on health, safety, environmental standards and consumer protection, the legislation in question must seek to attain high levels of protection (Article 95(3) EC Treaty).

Article 293 (ex Art 220)

This is a provision frequently neglected by the leading authors, but which has in its own way proved a significant source of policy. It concerns a number of issues for which approximation of legislation amongst the Member States is considered to be desirable, but in which such harmonisation is best achieved by means of international conventions rather than Community legislation. These areas include:

• the protection of persons and the enjoyment and protection of rights under the same conditions as those granted by each state to its own citizens;

• the elimination of double taxation within the EU;

2 Directives, as will be explained more fully on p 77, are Community instruments which are binding only as to the object to be achieved and leave the Member States some discretion in their incorporation into national law.

• the mutual recognition of businesses, the retention of their legal personality if they move from one Member State to another, and the possibility of mergers between businesses governed by the laws of different countries;

• the simplification of formalities governing the mutual recognition and enforcement of court judgments.

Although some have expressed regret at the fact that these areas thus elude the scope of Community legislation, it is a fact that the format of international conventions have made possible agreement and approximation which would have been practically impossible to achieve through ordinary Community legislation. It is this provision, for example, which made possible the extremely important convention on the mutual recognition of national court judgments of 27 April 1968.

The policy-making process

It is mainly the Commission which is cast in the role of initiator of Community policy. It is true that the Council may, under Article 208 (ex Art 152) EC Treaty, request the Commission to undertake any studies which it considers desirable for the achievement of the common objectives, and to submit to it any appropriate proposals. However, it will be the Commission which will bear the responsibility for any policy which emerges from this process. When making policy proposals, the watchword invariably observed by the Commission is

‘consultation’. The Commission will first enter into discussions with those likely to be affected by the proposals, at the political, trade union or civil service level.

It will then proceed to give detailed consideration to the policy proposals with the assistance of its specialist divisions, in particular the Legal Service. This enables it to reach its final position which is then transmitted to the Council.

Once the principal outlines of the policy have been agreed, the Commission will consider the practical details of implementing these proposals. Meetings are organised with experts from the national civil services in order to consider the practical implications of the proposals. These experts will be fully aware of the wishes of their governments and will therefore be in a good position to inform the Commission whether or not these proposals will be acceptable at the national level. This then will be the basis for the legislation implementing the policy proposals.³

Once the policy has been agreed, work can commence on its implementation.

Rarely is a policy proposal translated into just one legislative instrument. Very often a considerable amount of legislation will flow from it. This requires co-ordinated action as well as timetables for their realisation. Sometimes a White Paper is published which sets out the proposed programme of legislation, but which still requires formal endorsement. The most famous example of this was

3 Lasok, 6th edn, 1994, p 190.

the Cockfield White Paper on the Single Market. Its conclusions were endorsed by the meeting of Heads and Governments in 1985, and incorporated into the SEA 1986. For policies which have already been endorsed, a general legislative programme may be adopted. This was the case with the 1969 General Programme on the removal of technical obstacles to trade, and with the 1961 programme on the abolition of restrictions on the freedom to provide services.