Sistema de inventarios periódicos y permanentes

On the basis of the findings of this research project, we make the following recommendations for the situation in the Netherlands, taking into account the recent amendments to transposition policies which are designed to improve Dutch performance:

1. Involve the Dutch Parliament more by introducing a scrutiny reserve

More systematic parliamentary involvement during the drafting of the Dutch position is extremely important for the timely transposition of directives. This will speed up the process of transposition particularly concerning subjects that require an Act of Parliament during the transposition phase (and to a lesser extent for subjects requiring a general administrative order subject to a resolution procedure).68 _{In a more general}

sense, the active involvement of the national Parliament has advantages in terms of the better utilization of the national legislative system in transposing directives (the different use of existing possibilities within the existing constitutional framework) and democratic legitimacy.

We propose the introduction of a scrutiny reserve – like the one in the United Kingdom – to ensure a more active role for the Parliament.69 _{To achieve a scrutiny}

reserve (which basically means that the Government cannot negotiate the terms of a European legislative proposal before Parliament has discussed it) the two Houses of

68 _{In accordance with Article 1:7 of the General Administrative Law Act, resolution procedures in the}

context of implementing administrative orders are applicable only if conditional delegation has been provided for, and this is only the case in a minority of the resolution cases.

69 _{Denmark also uses a reserve of this kind since all proposals must be discussed by the national}

Parliament. In France, a reserve is made when Parliament has indicated that it wants to draw up a motion.

Parliament could establish a selection committee responsible for reviewing, like the scrutiny committee of the British Parliament, which proposals should and should not be submitted to the Houses for discussion. This ensures that important dossiers that Parliament does not take a keen interest in for whatever reason, are still discussed. Selection will also substantially reduce the permanent committee’s workload relating to proposals, which should result in more time for a discussion based on the merits of a proposal. If the selection committee refers a proposal to a permanent committee for a discussion on the merits of a proposal, the latter may ask the Government after this discussion to focus on specific points to be included in the negotiations. The reserve means that the Government is required to wait until after the parliamentary discussion before presenting its own position on behalf of the Netherlands in the Council negotiations. As for the question of which committee should act as ‘gatekeeper’, the most obvious candidates would be the existing European Affairs committees of both Houses. An alternative is to entrust this task in one form or another to the recently established Joint Committee on the Application of Subsidiarity, which is currently – by way of an experiment currently under way – responsible for administering the subsidiarity and proportionality tests under the terms of the protocols to the – yet-to-be- ratified– European Constitution.

If the Dutch Parliament is to seize the opportunity of being more closely involved in the negotiations about the transposition of directives, it is also extremely important that the MPs enhance their knowledge about the European agenda and the Dutch contribution to the European legislative chain.

2. Pursue an active, strategic policy relating to the transposition of EC directives

In the Netherlands, the ICER (Interdepartementale Commissie Europees Recht) is responsible for monitoring the progress of the transposition of directives. This is an interdepartmental commission chaired by representatives of the Ministries of Justice and the Interior, and it is charged with monitoring the quality of the transposition measures (inter alia). Despite the work performed by the committee, the ICER (-I)70 _is

insufficiently equipped at this juncture for monitoring the progress of transposition in the various ministries. The committee is unable to call the line ministries to account concerning progress issues and to make arrangements about the manner in which the transposition deficit is to be resolved.

For this reason, it seems natural to move progress monitoring to a high administrative level, perhaps the level of one of the sub councils of the Council of Ministers, which could then be specifically entrusted with the central responsibility for monitoring progress. At this level, it is possible to consult with representatives from the relevant ministries about progress issues and to make arrangements about the date at which specified directives are to be transposed. The present Coordination Committee (CoCo) is not yet equipped for this task.

In addition to this structure, we recommend developing a strategic policy relating to the transposition of directives. This policy could define the desired rate of transposition, with due regard for the interests of the relevant sector, within the limits set by the European Commission.

3. Transpose directives at the lowest possible level and use the existing legislative system and instruments to the fullest extent possible

We recommend utilizing the possibilities offered by the existing legislative system – including the regular instruments and delegation options – in a more effective manner and to encourage the transposition of EC directives at the lowest possible regulatory level. It has not been established that new generic transposition instruments or procedures provide a significant and long-term advantage in terms of the speed of transposition, certainly not if we consider the latent potential of the present instrum- ents and delegation possibilities. In addition, far-reaching authorization constructions in transposition instruments occasionally have certain constitutional disadvantages. Furthermore, if the existing legislative system is used in a more effective manner, it is easier to do justice to the individual character of the directives to be transposed in a specific policy area.

4. Work on a broadly supported, joint Dutch influence on European dossiers

With the enlargement of the European Union, the influence exerted by the Nether- lands, as one of the founding members of the Union, will decline both in absolute and in relative terms. To date, the Netherlands seems to have assumed the attitude that whatever is good for Europe is also good for the Netherlands. This position will probably not be tenable in the future. This means that the Netherlands has to change the manner in which it operates in Brussels. This could include strengthening the role of the national Parliament during the negotiation phase, developing closer ties with members of the European Parliament and engaging in broad consultation involving interest groups at the negotiation stage.

Part II