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

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ISBN: 9789067041843 | 906704184X
Cover: Hardcover
Copyright: 6/13/2005

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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.

Preface

List of abbreviations

Part I Reflections on Co-Actorship in the Development of European Law-Making

ERNST M.H. HIRSCH BALLIN

1. Introduction

(1)

2. The constitutional framework

(2)

3. The sui generis nature of the EU's legislative procedures

(4)

4. Co-actorship

(1)

5. What determines the quality of European legislation?

(3)

6. EU law-making is not just a matter for European institutions

(2)

7. The role of the Councils of State

(2)

8. The contribution of the national courts to the quality of European legislation and its application

(2)

9. The quality of the interconnections

(2)

10. Practising co-actorship

(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

(2)

2. Defining the quality issues in relation to European legislation

(6)

Chapter 2 INTERPRETATION OF EUROPEAN LEGISLATION IN THE MEMBER STATES

1. The interpretation problems

(1)

1.1 The nature and causes of interpretation problems

(1)

1.2 The new hierarchy and typology of European legal instruments

(1)

1.2.1 Problems connected to the present system of European legal instruments

(1)

1.2.2 Introduction of a new hierarchy of norms and typology of legal acts

(1)

1.2.3 Problems connected to the use of other instruments

(3)

1.3 Implementation techniques: the relation between transposition and application

(1)

1.3.1 General observations

(1)

1.3.2 National approaches

(11)

1.4 Case study: transposing and applying the Bird and Habitat Directives and the Sixth VAT Directive

(1)

1.4.1 The Sixth VAT Directive

(1)

1.4.2 The Bird and Habitat Directives

(6)

2. Dealing with interpretation problems

(1)

2.1 Ex ante examination of European legislation

(1)

2.2 The use of interpretation aids

(1)

2.2.1 The approach in the case law of the ECJ

(1)

2.2.2 Transparency and travaux préparatoires

(1)

2.2.3 Preamble

(1)

2.2.4 Statements in the minutes of the Council

(1)

2.2.5 Commission documents

(1)

2.3 Recourse to different language versions

(1)

2.3.1 Approach of the ECJ in the case of linguistic divergences

(1)

2.3.2 National approaches

(13)

2.4 Recourse to consistent interpretation and reliance on direct effect

(1)

2.5 Recourse to the preliminary rulings procedure

(1)

2.5.1 Use

(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

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

Summary

Table of Contents

Supplemental Materials