Category Archives: The Decision-Making Process and the Work of the Institutions

In order to implement EU policies, the European institutions adopt legal acts in accordance with the rules and procedures set out in the Treaties. In general, the European Commission proposes the legal acts, which are then adopted by the Council and the European Parliament. The three main procedures are consultation, assent and codecision.
Citizens also have a say in the development of Community policies. In the early 2000s, the Commission launched a major initiative to make the decision-making process more transparent, more efficient and more democratic. The aim of this initiative is to bring the European institutions closer to the citizen.

Access to European Parliament, Council and Commission documents

Access to European Parliament, Council and Commission documents

Outline of the Community (European Union) legislation about Access to European Parliament, Council and Commission documents

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Access to European Parliament, Council and Commission documents

Document or Iniciative

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

Summary

The purpose of this Regulation is to facilitate access to the documents * of the European institutions. It provides that citizens may access any type of documents, subject to the conditions defined in the Regulation and the exceptions laid out therein. It applies to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union (EU).

Beneficiaries are any EU citizens and any natural or legal persons residing or having their headquarters in a Member State.

Exceptions and rights of third parties

The institutions can refuse access to a document where disclosure would undermine the protection of:

  • the public interest as regards public security, defence, international relations, and the financial, monetary or economic policy of the Community or a Member State;
  • privacy and the integrity of an individual, in particular in accordance with Community legislation regarding the protection of personal data;
  • a person’s commercial interests;
  • court proceedings and legal advice;
  • the purpose of inspections, investigations and audits.

The European institutions may refuse to disclose a particular document if this is justified by an overriding public interest.

Access to a document drawn up by an institution for internal use may be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

As regards third-party documents *, the institution must consult the third party with a view to assessing whether an exception is applicable.

Documents in the Member States

Where a Member State receives a request for a document in its possession, originating from an institution, the Member State consults with the institution concerned, in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation. The Member State may instead refer the request to the institution.

Applications, processing of applications and access to documents

Applications for access to a document must be made in written form, including electronic form, in one of the languages of the EU. The applicant is not obliged to state reasons for the application.

An application for access to a document must be handled promptly. An acknowledgement of receipt must be sent to the applicant. Within 15 working days from the registration of the application, the institution must either grant access to the document requested, or refuse access.

In the event of total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

The applicant has access to documents either by consulting them on the spot or by receiving a copy.

Treatment of sensitive documents

Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or international organisations, classified as “TRÈS SECRET/TOP SECRET”, “SECRET” or “CONFIDENTIAL”. Applications for access to sensitive documents must be handled only by those persons who have a right to acquaint themselves with those documents. Sensitive documents are recorded in the register or released only with the consent of the originator.

Registers and administrative practice

To facilitate access to documents, each institution must provide access to a register of documents. Access to the register should be provided in electronic form.

The Member States must cooperate with the institutions in providing information to the citizens. The institutions must develop good administrative practices, in order to facilitate the exercise of the right of access guaranteed by this Regulation. They must establish an inter-institutional committee to examine best practice, address possible conflicts and discuss future developments on public access to documents.

Publication in the Official Journal

The following documents are published in the Official Journal:

  • Commission proposals;
  • common positions adopted pursuant to Articles 251 and 252 of the EC Treaty;
  • framework decisions, decisions and conventions referred to in Article 34 of the Treaty on European Union (EU Treaty);
  • conventions signed between Member States on the basis of Article 293 of the EC Treaty;
  • international agreements concluded by the Community or in accordance with Article 24 of the EU Treaty.

Reports and application measures

Every year, each institution publishes a report for the preceding year, indicating the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register.

Key terms used in the act
  • Document: any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.
  • Third party: any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies, and third countries.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation No 1049/2001

3.12.2001

OJ L 145 of 31.5.2001

Related Acts

Proposal for a Regulation of the European Parliament and of the Council of 30 April 2008 regarding public access to European Parliament, Council and Commission documents [COM(2008) 229 final – Not published in the Official Journal].

This proposal seeks to amend Regulation (EC) No 1049/2001 in light of the European Parliament’s motion for a resolution of 4 April 2006 on access to the institutions’ texts (A6-0052/2006), the Regulation (EC) No 1367/2006 of 6 September 2006 on the Aarhus Convention, and the public consultation on the review of the Regulation (EC) No 1049/2001 (SEC(2008) 29/2).
The proposal underpins amendments with regard to the following Articles:

  • the purpose of the Regulation, which is to grant public access to the institutions’ documents;
  • the beneficiaries of the Regulation, who may be any natural or legal persons, regardless of their nationality or State of residence;
  • the scope of the Regulation, which excludes documents submitted to Courts by third parties. The scope also excludes documents related to an investigation as long as the investigation has not been closed or the relevant decision has not become definitive;
  • the definition of “document”, which indicates that the document has been formally transmitted to its recipient(s), circulated within the institutions or otherwise registered. The definition of “document” also applies to data contained in electronic systems, if they can be extracted in a readable form;
  • the exceptions to the Regulation, which include documents that concern environmental protection, relate to court, arbitration and dispute settlement proceedings, and aim at protecting selection procedures for staff and contracting parties. The disclosure of non-professional related personal data of civil servants and interest representatives is regulated by EC legislation on processing of personal data (Regulation (EC) No 45/2001);
  • the consultations with third parties, which provide for the obligation to consult the authorities of the Member State from where the document originates, unless the document is part of a procedure leading to a legislative or non-legislative act of general application;
  • the applications for documents, which take into account the clarity with which the document is requested and thus identified. With regard to confirmatory applications, the time limit for handling these is extended from 15 to 30 working days. In case of even partial refusal, the applicant can bring proceedings against the institution before the Court of First Instance and/or complain to the European Ombudsman;
  • access to the document following the application, which cannot derogate from specific modalities laid down in EU or national law, in particular when access is subject to a payment fee;
  • the active dissemination of documents, which provides for direct access to documents that are part of a procedure leading to a legislative or non-legislative act of general application. Each institution is to define the other categories that are to be made directly accessible to the public.

Co-decision procedure (2008/0090/COD)

The direct effect of European law

The direct effect of European law

Outline of the Community (European Union) legislation about The direct effect of European law

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The direct effect of European law

The direct effect of European law is, along with the principle of precedence, a fundamental principle of European law. It was enshrined by the Court of Justice of the European Union (CJEU). It enables individuals to immediately invoke European law before courts, independent of whether national law test exist.

The direct effect principle therefore ensures the application and effectiveness of European law in the Member States. However, the CJEU defined several conditions in order for a European legal act to be immediately applicable. In addition, the direct effect may only relate to relations between an individual and a Member State or be extended to relations between individuals.

Definition

The direct effect of European law has been enshrined by the Court of Justice in the judgement of Van Gend en Loos of 5 February 1963. In this judgement, the Court states that European law not only engenders obligations for Member States, but also rights for individuals. Individuals may therefore take advantage of these rights and directly invoke European acts before national and European courts. However, it is not necessary for the Member State to adopt the European act concerned into its internal legal system.

Horizontal and vertical direct effect

There are two aspects to direct effect: a vertical aspect and a horizontal aspect.

Vertical direct effect is of consequence in relations between individuals and the State. This means that individuals can invoke a European provision in relation to the State.

Horizontal direct effect is consequential in relations between individuals. This means that an individual can invoke a European provision in relation to another individual.

According to the type of act concerned, the Court of Justice has accepted either a full direct effect (i.e. a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to the vertical direct effect).

Direct effect and primary legislation

As far as primary legislation is concerned, i.e. the texts at the top of the European legal order, the Court of Justice established the principle of the direct effect in the Van Gend & Loos judgment. However, it laid down the condition that the obligations must be precise, clear and unconditional and that they do not call for additional measures, either national or European.

In the Becker judgment (Judgment of 19 January 1982), the Court of Justice rejected the direct effect where the States have a margin of discretion, however minimal, regarding the implementation of the provision in question (Judgment of 12 December 1990, Kaefer & Procacci).

Direct effect and secondary legislation

The principle of direct effect also relates to acts from secondary legislation, that is those adopted by institutions on the basis of the founding Treaties. However, the application of direct effect depends on the type of act:

  • the regulation: regulations always have direct effect. In effect, Article 288 of the Treaty on the Functioning of the EU specifies that regulations are directly applicable in the Member States. The Court of Justice clarifies in the judgement of Politi of 14 December 1971 that this is a complete direct effect;
  • the directive: the directive is an act addressed to Member States and must be transposed by them into their national laws. However, in certain cases the Court of Justice recognises the direct effect of directives in order to protect the rights of individuals. Therefore, the Court laid down in its case-law that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise (Judgement of 4 December 1974, Van Duyn). However, it can only have direct vertical effect and it is only valid if the Member States have not transposed the directive by the deadline (Judgement of 5 April 1979, Ratti);
  • the decision: decisions may have direct effect when they refer to a Member State as the addressee. The Court of Justice therefore recognises only a direct vertical effect (Judgement 10 November 1972, Hansa Fleisch);
  • international agreements: in the Demirel Judgement of 30 September 1987, the Court of Justice recognised the direct effect of certain agreements in accordance with the same criteria identified in the Judgement Van Gend en Loos;
  • opinions and recommendations: opinions and recommendations do not have legal binding force. Consequently, they are not provided with direct effect.

Precedence of European law

Precedence of European law

Outline of the Community (European Union) legislation about Precedence of European law

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Precedence of European law

The precedence principle guarantees the superiority of European law over national laws. It is a fundamental principle of European law. As with the direct effect principle, it is not inscribed in the Treaties, but has been enshrined by the Court of Justice of the European Union (CJEU).

Definition

The CJEU enshrined the precedence principle in the Costa versus Enel case of 15 July 1964. In this case, the Court declared that the laws issued by European institutions are to be integrated into the legal systems of Member States, who are obliged to comply with them. European law therefore has precedence over national laws. Therefore, if a national rule is contrary to a European provision, Member States’ authorities must apply the European provision. National law is neither rescinded nor repealed, but its binding force is suspended.

The Court later clarified that the precedence of European law is to be applied to all national acts, whether they were adopted before or after the European act in question.

With European law becoming superior to national law, the principle of precedence therefore ensures that citizens are uniformly protected by a European law assured across all EU territories.

Scope of the principle

The precedence of European law over national laws is absolute. Therefore, it applies to all European acts with a binding force, whether emanating from primary or secondary legislation.

In addition, all national acts are subject to this principle, irrespective of their nature: acts, regulations, decisions, ordinances, circulars, etc), irrespective of whether they are issued by the executive or legislative powers of a Member State. The judiciary is also subject to the precedence principle. Member State case-law should also respect EU case-law.

The Court of Justice has ruled that national constitutions should also be subject to the precedence principle. It is therefore a matter for national judges not to apply the provisions of a constitution which contradict European law.

Responsibility for ensuring compliance with the principle

As for the direct effect principle, the Court of Justice is responsible for ensuring the precedence principle is adhered to. Its rulings impose penalties on Member States who infringe it, on the basis of the various remedies provided for by the founding Treaties, notably proceedings for failure to fulfil an obligation.

It is also the task of national judges to ensure the precedence principle is adhered to. Should there be any doubt regarding the implementation of this principle, judges may make use of the reference for a preliminary ruling procedure. In its judgment of 19 June 1990 (Factortame), the Court of Justice indicated that national courts, as part of a preliminary ruling on the validity of a national law, must immediately suspend the application of this law until such time as the Court of Justice gives its recommended solution and the national court gives its ruling on the substance of the issue.

Proceedings for failure to fulfil an obligation

Proceedings for failure to fulfil an obligation

Outline of the Community (European Union) legislation about Proceedings for failure to fulfil an obligation

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Proceedings for failure to fulfil an obligation

Proceedings for failure to fulfil an obligation are legal proceedings brought before the Court of Justice of the European Union. These proceedings may be brought by the Commission or by a Member State against a Member State which has not complied with European Union (EU) law.

Proceedings for failure to fulfil an obligation are based on Articles 258 to 260 of the Treaty on the Functioning of the EU.

Nature of the failure

The failure can stem from instruments (laws, decrees, administrative decisions, etc.) or be the result of facts (administrative practices, etc.).

It can be the consequence of positive behaviour (actions) or negative behaviour (abstentions, omissions). Thus, actions can, for instance, consist of the adoption of a text contrary to European law or the express refusal to repeal a national measure that is contrary to European law. Abstentions or omissions can, for example, consist of delays in transposing a directive or failure by Member States to notify national implementing measures to the Commission.

The act must be attributable to the Member State. For this reason, the concept of State is interpreted broadly by the Court of Justice in that it may mean all of the State bodies such as the government, the parliament, federated entities or sub-national bodies, etc.

Procedure

Proceedings may be brought either by the Commission, which is most often the case in practice, or by a Member State:

  • when the Commission initiates proceedings, it must first address a reasoned opinion to the Member State which has not complied with Union law. If, after a certain period, the Member State has still not rectified its failure to fulfil its obligation, the Commission may then bring proceedings against the Member State before the Court of Justice;
  • when a Member State initiates proceedings, it must first bring the matter before the Commission. The Commission then delivers a reasoned opinion after having heard the arguments of the Member States concerned. The plaintiff Member State may then bring the matter before the Court of Justice.

Once the matter has been referred, if the Court of Justice finds that there has been a failure to fulfil an obligation, it shall deliver its first judgment which includes the measures to be adopted by the Member State in order to rectify the situation. Subsequently, if the Commission considers that the Member State has not taken the necessary measures, it shall bring the matter before the Court of Justice a second time. If the Court confirms that the Member State has not complied with its first judgment, it may then impose a fine on it.

The Treaty of Lisbon introduces specific proceedings for cases where a Member State does not communicate the measures for transposing a directive to the Commission. In such a case, the Court may impose a pecuniary penalty on the Member State concerned from the date of the first judgment on the failure to fulfil an obligation.

Allocation of jurisdiction between the Court of Justice and the General Court

Only the Court of Justice is competent to hear proceedings for failure to fulfil an obligation brought by a Member State or by the European Commission.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

Proceedings for failure to act

Proceedings for failure to act

Outline of the Community (European Union) legislation about Proceedings for failure to act

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Proceedings for failure to act

Proceedings for failure to act are legal proceedings brought before the Court of Justice of the European Union (CJEU). They enable the Court to control the inaction of a European Union (EU) institution, body, office or agency.

Nature of the proceedings

Proceedings for failure to act may be brought against the European Parliament, the European Council, the Council, the Commission or the European Central Bank. They may also be brought against EU bodies, offices or agencies.

Moreover, failure to act is characterised by the failure to act by the body concerned where European law imposed an obligation to act. The failure to act is therefore illegal.

For example, proceedings for failure to act may be brought against an institution which has not adopted an act or taken a measure provided for by European law.

Plaintiffs

Article 265 of the Treaty on the Functioning of the EU provides for two categories of plaintiff.

The first category groups the Member States and the EU institutions together. These plaintiffs are termed ‘preferential’ in that they do not have to demonstrate any interest in taking action in order to be able to bring proceedings for failure to act.

The second category comprises individuals. Unlike preferential plaintiffs, individuals must have an interest in taking action in order to be able to bring proceedings before the Court of Justice. Article 265 of the TFEU specifies that individuals may bring proceedings for failure to act against an institution which has failed to address an act to them. In practice, the Court of Justice also accepts proceedings for failure to act in relation to an act which is not formally addressed to individuals but concerns them directly and individually.

Procedure

Before being able to bring proceedings for failure to act, the plaintiff must first call upon the Union institution, body, office or agency to act. If after two months, the entity concerned has not defined its position, the plaintiff has a further period of two months to introduce proceedings for failure to act before the Court of Justice.

If the Court of Justice finds in favour of the plaintiff, it limits itself to this finding. In other words, the Court of Justice cannot substitute itself for the institution concerned to remedy the failure to act. It is the responsibility of the institution to act within a reasonable period of time.

Division of jurisdiction between the Court of Justice and the General Court

The Court of Justice has jurisdiction in:

  • proceedings brought by Member States against the European Parliament or the Council;
  • proceedings brought by an institution against another institution.

The General Court has jurisdiction to hear and determine at first instance all other types of proceedings, and in particular, proceedings brought by individuals.

This fact sheet is not legally binding on the European Commission, it does not claim to be exhaustive and does not represent an official interpretation of the text of the Treaty.

The reference for a preliminary ruling

The reference for a preliminary ruling

Outline of the Community (European Union) legislation about The reference for a preliminary ruling

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The reference for a preliminary ruling

The reference for preliminary ruling forms part of the procedures which may be exercised before the Court of Justice of the European Union (CJEU). This procedure is open to all Member States’ national judges. They may refer a case already underway to the Court in order to question it on the interpretation or validity of European law.

In contrast to other judicial procedures, the reference of a preliminary ruling is therefore not a recourse taken against a European or national act, but a question presented on the application of European law.

The reference for a preliminary ruling thus promotes active cooperation between the national courts and the Court of Justice and the uniform application of European law throughout the EU.

Nature of references for a preliminary ruling

Any national court to which a dispute in which the application of a rule of European law raises questions (original case) has been submitted can decide to refer to the Court of Justice to resolve these questions. Therefore, there are two types of reference for a preliminary ruling:

  • a reference for a ruling on the interpretation of the European instrument: the national judge requests the Court of Justice to clarify a point of interpretation of European law in order to be able to apply it correctly;
  • a reference for a preliminary ruling on the validity of the European instrument: the national judge requests the Court of Justice to check the validity of an act of European law.

The reference for a preliminary ruling is therefore a reference “from one judge to another“. Although a referral to the Court of Justice may be requested by one of the parties involved in the dispute, the decision to do so rests with the national court. In this respect, Article 267 of the Treaty on the Functioning of the EU specifies that national courts which act as a final resort, against whose decisions there is no judicial remedy, are obliged to exercise the reference for a preliminary ruling if one of the parties requests it. In contrast, national courts which are not a final resort are not obliged to exercise the reference for a preliminary ruling even if one of the parties requests it. In any case, all national courts must immediately refer a matter to the Court of Justice in cases of doubt regarding a European provision.

The Court of Justice therefore only gives a decision on the constituent elements of the reference for a preliminary ruling made to it. The national court therefore remains competent for the original case.

On principle, the Court of Justice must answer the question put to it. It cannot refuse to answer on the grounds that this response would be neither relevant nor timely as regards the original case. It can, however, refuse if the question does not fall within its sphere of competence.

Scope of preliminary rulings

The Court of Justice Decision has the force of res judicata. It is, furthermore, binding not only on the national court on whose initiative the reference for a preliminary ruling was made but also on all of the national courts of the Member States.

In the context of a reference for a preliminary ruling concerning validity, if the European instrument is declared invalid all of the instruments adopted based on it are also invalid. It then falls to the competent European institutions to adopt a new instrument to rectify the situation.

Related Acts

Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [Official Journal C 338 of 6.11.2012].

 

The principle of cooperation between the institutions

The principle of cooperation between the institutions

Outline of the Community (European Union) legislation about The principle of cooperation between the institutions

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The principle of cooperation between the institutions

Summary

The principle of “sincere cooperation” stems from Article 4 of the Treaty on European Union (TEU) in the context of relations between the European Union (EU) and Member States and Article 13 of the TEU in the context of relations between the EU institutions.

In substance, this Article states that the Member States must take all appropriate measures to fulfil their obligations arising out of the Treaty and do nothing detrimental to the proper functioning of the European Union.

Cooperation between the Member States and the EU institutions

Member States have a duty of sincere cooperation with the EU institutions. Accordingly, they are asked to support EU activities and not to hinder their proper functioning. This involves, for example:

  • punishing infringements of EU law as strictly as infringements of national law;
  • cooperating with the Commission in procedures linked to the monitoring of compliance with EU law, e.g. by sending the documents required in accordance with the rules;
  • making good any damage caused by infringements of EU law;
  • not unnecessarily hindering the internal operation of the European institutions (for example, by taxing reimbursements of the transport costs of MEPs travelling to Brussels and Strasbourg);
  • cooperating with the Commission in the event of inaction on the part of the Council, so as to enable the EU to fulfil its responsibilities (for example, to fulfil urgent needs concerning the conservation of certain fish stocks).

Article 4 of the TEU invites the EU and the Member States to respect and assist each other in carrying out tasks which flow from the Treaties.

Cooperation between the institutions

In accordance with Article 13 of the TEU, the EU institutions are required to comply with the principle of mutual “sincere cooperation”. They are:

  • the European Parliament;
  • the European Council;
  • the Council;
  • the European Commission;
  • the Court of Justice of the European Union;
  • the European Central Bank;
  • the Court of Auditors;

This principle is applicable in accordance with the case law of the Court of Justice of the EU.

The principle of interinstitutional cooperation can also be found in Article 249 of the Treaty on the Functioning of the European Union (TFEU), which lays down that the Council and the Commission must consult each other and settle by common accord their methods of cooperation.

Interinstitutional cooperation takes place in various ways, including:

  • exchanges of letters between the Council and the Commission;
  • interinstitutional agreements;
  • joint declarations of the three institutions.

Green Paper on the European Transparency Initiative

Green Paper on the European Transparency Initiative

Outline of the Community (European Union) legislation about Green Paper on the European Transparency Initiative

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Institutional affairs > The decision-making process and the work of the institutions

Green Paper on the European Transparency Initiative

This Green Paper launched a public consultation on three themes aiming to improve transparency in decision-making procedures: the need for a more structured framework governing the activities of interest representatives, the need for feedback on the Commission’s consultation of civil society and the mandatory disclosure of information about the beneficiaries of EU funds under shared management. The intention was to build on a series of measures already put in place by the Commission, in particular those on transparency and openness since the White Paper on European governance.

Document or Iniciative

Green Paper of 3 May 2006 – European transparency initiative [COM(2006) 194 final – Official Journal C 151 of 29.6.2006].

Summary

When launching the Transparency Initiative on 9 November 2005, the Commission drew a distinction between three areas of action:

  • fuller information about the management and use of Community funds;
  • professional ethics within the European institutions;
  • the framework within which lobby groups and civil society organisations* operate.

In the field of funding, it set up a website to allow better scrutiny of use of EU funds under centralised management.

A second series of measures meant that debates could be restarted with the other European institutions on:

  • the rules and standards on professional ethics of political appointees in the European institutions;
  • a review of the legislation on access to documents;
  • a revision of the legal framework regulating the activities of the EU’s Anti-Fraud Office (OLAF).

Finally, the Commission identified three major components of the European Transparency Initiative, to be driven forward on the basis of an open public consultation, that are the subject of this Green Paper.

Interested parties were invited to submit their opinions on these three themes. The consultation opened on 3 May and closed on 31 August 2006. All contributions have been published on the Commission website below.

Transparency and interest representation (lobbying)

The Commission’s existing policy on transparency in lobbying* is based on two different categories of measures. On the one hand, there is the information provided to the general public about the relations between interest representatives and the Commission in order to allow outside scrutiny. On the other, there are the rules on integrity, which govern the proper conduct of those being lobbied and of the lobbyists* themselves.

A number of options can be considered for reinforcing the external scrutiny of lobbying:

  • providing more extensive information on who has contributed to the development of a policy or a legal framework;
  • developing an incentive-based registration system.

Regarding the first point, the Commission intends to ensure that, during the public consultations, interest groups will be systematically asked to fill in an electronic questionnaire about their objectives, financial situation and the interests they represent.

The Commission is also studying the possibility of developing and managing a web-based voluntary registration system for all interest groups and lobbyists who wish to be consulted on EU initiatives. To qualify for entry in the register, applicants would need to provide information on who they represent, what their mission is and how they are funded. They would also be required to sign up to a code of ethics.

The Commission, which does not consider a compulsory registration system to be an appropriate option, favours a tighter system of self-regulation. It suggests checking whether, after an appropriate period of time, the system of self-regulation has worked, with consideration then given, if necessary, to a system of compulsory measures.

Alongside external scrutiny of contacts with lobbyists, integrity rules are another essential contribution to transparency in lobbying. The Commission has taken the view that voluntary codes of conduct for lobbyists can play a useful supporting role. In the 1992 Communication on special interest groups, lobbyists were invited to adopt their own codes of conduct on the basis of minimum criteria proposed by the Commission. In this context, the Commission considers that the system should be enhanced by the addition of a system of monitoring and sanctions in the event of incorrect registration and/or breach of the code of conduct.

Feedback on application of the minimum standards for consultation

The Commission adopted a Communication on the minimum standards for consultation in December 2002. The objective was to create a transparent and coherent general framework for consultation. The overall rationale was to ensure that interested parties are properly heard in the Commission’s policy-making process.

The minimum standards have been in force since the beginning of 2003. They concern the general principles applicable to consultation, i.e. participation, openness, accountability, effectiveness and coherence.

In the Commission’s view, the general assessment for the period 2003-2005 was that overall compliance was satisfactory, with most of the minimum standards being correctly applied by Commission departments. However, contributions to open public consultations were not published on the internet in every case and in some cases there was insufficient feedback on how comments received via consultations were or were not taken into account in the final policy proposal from the Commission.

Disclosure of the identity of beneficiaries of Community funds

In the Green Paper, the European Commission affirms its commitment to raising awareness of the use made of EU money, notably by explaining better what Europe does and why it matters.

Regarding the use of Community funds, most of the EU budget is not spent centrally and directly by the Commission but in partnership with the Member States. Most of the information on beneficiaries of Community funds is therefore currently in the hands of each Member State. The extent to which information is made public differs significantly from one Member State to another.

Citizens often turn to the European Commission for information about the beneficiaries of Community funds if such information is not disclosed at a regional or national level. This situation puts the Commission in a difficult position since it either does not have this information or does not have the right to hand it out without the prior agreement of the Member State concerned. Moreover, the restrictive approach taken to publishing information by some Member States is often based on national law or data protection practices.

The Commission is of the opinion that the time has come to overcome these obstacles by drawing up a new EU legal framework directly applicable in all Member States so as to ensure a consistent approach towards all beneficiaries of EU funds.

Background

The Commission has stressed the importance of a “high level of transparency” to ensure that the Union is “open to public scrutiny and accountable for its work”. It believes that high standards of transparency are part of the legitimacy of any modern administration. Against this background, the Commission launched the “European Transparency Initiative” (ETI) in November 2005.

It was intended that this initiative would build on a series of measures already put in place by the Commission, in particular those taken as part of the overall reforms implemented since 1999 and in the White Paper on European governance. Some of the major achievements in this field include:

  • the legislation on access to documents (Regulation (EC) No 1049/2001);
  • the launch of databases providing information about consultative bodies and expert groups advising the Commission;
  • wide consultations of stakeholders and in-depth impact assessments prior to legislative proposals;
  • the Commission’s “Code of good administrative behaviour”, which is its benchmark for quality service in its relations with the public.

Key terms used in the act

  • Lobbying: all activities carried out with the objective of influencing the policy formulation and decision-making processes of the European institutions.
  • Lobbyists: persons carrying out lobbying and who work in organisations such as public affairs consultancies, law firms, NGOs, think-tanks or trade associations.
  • Civil society organisations: a wide-ranging concept that includes European interest (and pressure) groups, trade unions and employers’ federations, NGOs, consumer groups, organisations representing social and economic players, charities and community-based organisations.

Regulations

Regulations

Outline of the Community (European Union) legislation about Regulations

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

Regulations

Regulations are items of unilateral secondary legislation, i.e. they are adopted solely by the European Union authority. They are referred to in Article 288 of the Treaty on the Functioning of the European Union (TFEU), which stipulates that “a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”

A regulation has general application

It is addressed to abstract categories of persons, not to identified persons. This is what distinguishes it from the decision, defined in Article 288 of the TFEU.

The Court of Justice has indicated that regulations are aimed at general categories of persons but may nevertheless be limited to certain categories of persons. A regulation is still a regulation even when, at the time of the publication of the act, it is possible to determine the number, or even the identity of the persons to whom it applies.

A regulation is binding in its entirety

It is binding in its entirety and so may not be applied incompletely, selectively or partially. It is a legal act binding upon:

  • the institutions;
  • the Member States;
  • the individuals to whom it is addressed.

A Regulation is directly applicable in all the Member States

This means that:

  • no measures to incorporate it in national law are required;
  • it attributes rights and obligations independently of any national implementing measures. This does not mean that the Member States cannot take implementing measures. They must do so if necessary, in the context of complying with the principle of sincere cooperation, as defined in Article 4 of the Treaty on European Union (TEU);
  • it may be used as a reference by individuals in their relations with other individuals, with Member States or with the European authorities.

Regulations apply in all the Member States from the day of their entry into force, i.e. 20 days after their publication in the Official Journal. Their legal effects are simultaneously, automatically and uniformly binding in all the national legislations.

Implementing regulations

The European authorities may also adopt implementing measures: implementing regulations. This type of regulation is defined in Articles 164 and 178 of the TFEU, regarding the implementing regulations of the European Social Fund and the European Regional Development Funds.

The validity of implementing regulations as legal acts depends on the “basic regulations”. The latter lay down the fundamental rules, while the implementing regulations set out the technical provisions.

Directive

Directive

Outline of the Community (European Union) legislation about Directive

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

Directive

The directive forms part of the secondary law of the European Union (EU). It is therefore adopted by the European institutions in accordance with the founding Treaties. Once adopted at European level, the directive is then transposed by Member States into their internal law.

A binding act of general application addressed to the Member States

Article 288 of the Treaty on the Functioning of the EU states that a directive is binding. Like the European regulation or the decision, it is binding upon those to whom it is addressed. It is binding in its entirety and so may not be applied incompletely, selectively or partially.

However, a directive is distinct from a decision or a regulation. While a regulation is applicable in Member States’ internal law immediately after its entry into force, a directive must first be transposed by the Member States. Thus, a directive does not contain the means of application; it only imposes on the Member States the requirement of a result. They are free to choose the form and the means for applying the directive.

Furthermore, a directive also differs from a decision as it is a text with general application to all the Member States.

Moreover, Article 289 of the Treaty on the Functioning of the EU (TFEU) specifies that a directive is a legislative act when it is adopted following a legislative procedure. In principle, a directive is therefore the subject of a Commission proposal. It is then adopted by the European Council and the Parliament in accordance with the ordinary legislative procedure or the special legislative procedure.

A directive enters into force once it has been notified to the Member States or published in the Official Journal.

A legal act which must be transposed

This is a two-tier legal act which comprises:

  • the directive proper, issued by the European institutions;
  • national implementing measures, issued by the Member States.

Entry into force does not in principle imply direct effect in national law. In order for this to happen, a second stage is necessary: transposition. Transposition is carried out by the Member States; it means adopting national measures to enable them to achieve the results stipulated by the directive. The national authorities have to notify the Commission of these measures.

Solutions found to deal with failure to transpose a directive properly

In principle, a directive must be transposed by a deadline set by the institutions (between six months and two years). Once the deadline has passed:

  • the Commission may ask the Court of Justice to rule against a Member State (failure to comply with the Court’s ruling may lead to a further negative ruling, which could result in fines).
  • under certain circumstances, the Court of Justice has also allowed individuals the possibility of redress where directives have been transposed poorly or late (see its judgment in the case of Francovich and Bonifaci of 19 November 1991).
  • the Court of Justice considers that a directive has direct effect (i.e. an individual may rely on it in court).

A directive has vertical direct effect once the deadline for transposition has passed. This means that an individual may rely on the text against a Member State in court. However, it does not have horizontal direct effect (i.e. an individual may not rely on the text against another individual in court).

However, the Court of Justice has established several conditions so that an individual may refer to a directive before the courts, specifically:

  • the provisions of a directive are unconditional and sufficiently precise;
  • the directive shall not have been correctly transposed by a national measure by the set deadline.