Legislation in Europe: A Country by Country Guide 9781509924714, 9781509924684, 9781509924707

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LEGISLATION IN EUROPE Following on from the first volume, this unique book is the only collection of native analyses of the status of legislation in 30 European jurisdictions plus the EU. Each chapter, written by a national authority in the legislative field, presents and critically assesses: –– –– –– –– –– ––

the national constitutional environment and its connection with EU law; the nature and types of legislation; the legislative process; the drafting process; jurisprudence conventions; and the training of drafters.

The book opens with a comparative chapter on these six themes and concludes with an analysis of trends and best practices in Europe. Legislation in Europe is a necessary addition to law and policy libraries, law-making institutions and agencies, and an invaluable tool for constitutional and drafting academics and practitioners.

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Legislation in Europe A Country by Country Guide

Edited by

Ulrich Karpen and

Helen Xanthaki

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Karpen, Ulrich, editor.  |  Xanthaki, Helen, editor. Title: Legislation in Europe : a country by country guide / edited by Ulrich Karpen and Helen Xanthaki. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020.  |  Includes bibliographical references and index. Identifiers: LCCN 2020031744 (print)  |  LCCN 2020031745 (ebook)  |  ISBN 9781509924714 (hardback)  |  ISBN 9781509924707 (ePDF)  |  ISBN 9781509924691 (Epub) Subjects: LCSH: Legislation—Europe.  |  Legislation—European Union countries. Classification: LCC KJC5349 .L44 2020 (print)  |  LCC KJC5349 (ebook)  |  DDC 328.4/077—dc23 LC record available at https://lccn.loc.gov/2020031744 LC ebook record available at https://lccn.loc.gov/2020031745 ISBN: HB: 978-1-50992-471-4 ePDF: 978-1-50992-470-7 ePub: 978-1-50992-469-1 Typeset by Compuscript Ltd, Shannon

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Completed with the generous support of The Apfelbaum Foundation, Cologne

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PREFACE Legislation is the most popular instruments of governance in European democracies supporting the rule of law. It is of primary importance in all jurisdictions. Legisprudence, or legislative drafting, as research and teaching on the theory and practice of legislation, is an increasingly growing field of law. In academia, as legislation multiplies, so does the study of legislation both on a comparative and a national level. In practice, programmes of ‘Better Legislation’ as tools of ‘Good Governance’ begin to focus on national and supranational structures and instruments of good legislation. At a 2012 conference in Berlin, a planning of a study of legislation in EU jurisdictions was presented. The first volume was published in 2017 (Ulrich Karpen and Helen Xanthaki (eds), Legislation in Europe, a Comprehensive Guide for Scholars and Practitioners (Oxford, Hart Publishing, 2017). That volume focuses on general principles and best practice within the context of the diverse systems of government in the EU. Issues explored include the diverse types of normative settings, with a focus on primary legislation. The processes of drafting and assent as well as the methodology and formal drafting techniques are also analysed, including subsidiarity, legitimacy, proportionality, efficacy, effectiveness and efficiency. Finally, approaches to regulatory impact assessment, monitoring and teaching ‘good legislation’ are discussed. This volume, which acts as a follow-up volume to the book cited above, investigates the legislative systems in their respective countries. The authors, who are experts in legislation in their specific jurisdiction, start from the general principles and best practices developed in the first volume and develop the debate further by focusing in much more depth on the theory and practice of legislation within their own jurisdictions. This strong team of expert authors, both scholars and practitioners, examine their jurisdictions in detail and thus provide a solid basis for comparisons that can guide national institutions to devise their own informed drafting manuals, and of course to draft legislation. This book would not have been possible without the rich expertise and its cross-­ fertilisation by the members of the International Association of Legislation (IAL), whether during its conferences, in individual communications or in its literature. Through the IAL network, the book manages to present a colourful picture of 31 legislative systems shaped by democratic rule of law constitutionalism. This is true ‘unity in diversity’. The editors owe sincere gratitude to all the authors, who contributed with creativity, diligence and patience. It was a real pleasure to cooperate within this team.

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TABLE OF CONTENTS Preface����������������������������������������������������������������������������������������������������������������������������������������� vii List of Authors����������������������������������������������������������������������������������������������������������������������������� xi 1. Legislation in European Countries��������������������������������������������������������������������������������������� 1 Ulrich Karpen and Helen Xanthaki 2. Legislation in Austria��������������������������������������������������������������������������������������������������������� 35 Karl Irresberger and Christoph Konrath 3. Legislation in Belgium�������������������������������������������������������������������������������������������������������� 51 Patricia Popelier 4. Legislation in Bulgaria�������������������������������������������������������������������������������������������������������� 69 Martin Belov 5. Legislation in Croatia��������������������������������������������������������������������������������������������������������� 87 Ivan Koprić 6. Legislation in Cyprus�������������������������������������������������������������������������������������������������������� 103 Nicoletta Ioannou 7. Legislation in the Czech Republic������������������������������������������������������������������������������������� 119 Robert Zbíral 8. Legislation in Denmark���������������������������������������������������������������������������������������������������� 137 Helle Krunke 9. Legislation in Estonia�������������������������������������������������������������������������������������������������������� 151 Jaan Ginter, Aare Kasemets and Raul Narits 10. Legislation in Finland������������������������������������������������������������������������������������������������������� 167 Jyrki Tala 11. Legislation in France��������������������������������������������������������������������������������������������������������� 181 Karine Gilberg 12. Legislation in Germany���������������������������������������������������������������������������������������������������� 199 Ulrich Karpen 13. Legislation in Greece��������������������������������������������������������������������������������������������������������� 213 Maria Mousmouti 14. Legislation in Hungary����������������������������������������������������������������������������������������������������� 233 Tímea Drinóczi

x  Table of Contents 15. Legislation in Ireland�������������������������������������������������������������������������������������������������������� 251 Ronan Cormacain 16. Legislation in Italy������������������������������������������������������������������������������������������������������������ 267 Maria de Benedetto 17. Legislation in Latvia��������������������������������������������������������������������������������������������������������� 283 Daiga Rezevska 18. Legislation in Lithuania���������������������������������������������������������������������������������������������������� 299 Jurgita Malinauskaitė and Aušrinė Pasvenskienė 19. Legislation in Luxembourg����������������������������������������������������������������������������������������������� 313 Volker Heydt 20. Legislation in Malta���������������������������������������������������������������������������������������������������������� 325 Ivan Sammut 21. Legislation in the Netherlands������������������������������������������������������������������������������������������ 337 Emile Beenakker and Sjoerd E Zijlstra 22. Legislation in Norway������������������������������������������������������������������������������������������������������� 353 Jon Christian Fløysvik Nordrum 23. Legislation in Poland�������������������������������������������������������������������������������������������������������� 369 Jacek K Sokolowski 24. Legislation in Portugal������������������������������������������������������������������������������������������������������ 385 João Tiago da Silveira 25. Legislation in Romania����������������������������������������������������������������������������������������������������� 399 Emőd Veress 26. Legislation in Slovakia������������������������������������������������������������������������������������������������������ 415 Milan Hodás 27. Legislation in Slovenia������������������������������������������������������������������������������������������������������ 433 Polonca Kovač and Katerina Fabrizio 28. Legislation in Spain����������������������������������������������������������������������������������������������������������� 453 Mario Hernández Ramos 29. Legislation in Sweden������������������������������������������������������������������������������������������������������� 467 Johan Danelius and Cyril Holm 30. Legislation in Switzerland������������������������������������������������������������������������������������������������ 481 Stefan Höfler, Markus Nussbaumer and Felix Uhlmann 31. Legislation in the UK�������������������������������������������������������������������������������������������������������� 497 Helen Xanthaki and Constantin Stefanou 32. Legislation in the EU�������������������������������������������������������������������������������������������������������� 511 William Robinson Postscript���������������������������������������������������������������������������������������������������������������������������������� 541 Index����������������������������������������������������������������������������������������������������������������������������������������� 543

LIST OF AUTHORS Austria Karl Irresberger, Head of General Legistics etc Division, Federal Ministry of Constitutional Affairs, Reforms, Deregulation and Justice, Vienna; Christoph Konrath Christoph, Legal, Legislative and Research Service of the Austrian Parliamentary Administration, Vienna; Lecturer of Constitutional Law and Political Science, University of Vienna. Belgium Patricia Popelier, Full Professor of Constitutional Law, University of Antwerp; Director of the research group on Government and Law; Vice-Chair of the International Association of Legislation; Chair of the interuniversity Centre of Legislation Flanders (iCW). Bulgaria Martin Belov, Associate Professor in Constitutional and Comparative Constitutional Law and Vice Dean at the Faculty of Law, University of Sofia St. Kliment Ohridski; President of the Sofia Legal Science Network. Croatia Ivan Kopric; Tenured Professor and Head of the Chair of Administrative Science, Faculty of Law, University of Zagreb; President of the Institute of Public Administration. Cyprus Nikoletta Ioannou, Senior Counsel of the Republic of Cyprus at the European Union Section of the Law Office of the Republic. Czech Republic Robert Zbiral, Associate Professor at the Masaryk University in Brno and Palacky University in Olomouc. Denmark Helle Krunke, Professor of Constitutional Law and Head of PhD School, University of Copenhagen, Faculty of Law, Centre for European and Comparative Legal Studies (CECS); First Vice President of the International Association of Constitutional Law (IACL). Estonia Jaan Ginter, Professor of Law, School of Law, University of Tartu, Raul Narits, Professor of Comparative Jurisprudence, School of Law, University of Tartu, Aare Kasemets, Adviser in Regulatory Impact Assessment, Estonian Ministry of Rural Affairs, Trainer of applied courses in Better Regulation and Control of Corruption; formerly, Head of Research Service, Estonian Parliament (1995–2003).

xii  List of Authors Finland Jyrki Tala, Emeritus Professor of Legislative Studies, Vice-President of the Finnish Council on Legislative Impact Analysis. France Karine Gilberg, Head of Office chez Ministère de la Justice Service des affaires internationals, Ministère de la Justice Service des Affaires Européennes et Internationales. Germany Ulrich Karpen, Professor of Constitutional and Administrative Law, University of Hamburg; Honorary Professor, University of Xiamen, China; Member of the Hamburg State Parliament (1991–2001). Greece Maria Mousmouti, Lecturer in Law at the Institute of Advanced Legal Studies, University of London; Executive Director, Centre for European Constitutional Law, Athens. Hungary Tímea Drinóczi, Full Professor, Department of Constitutional Law, Faculty of Law, University of Pécs. Ireland Ronan Cormacain, Consultant Legislative Counsel; Lecturer in Public Law, City, University of London; Senior Research Fellow, Bingham Centre for the Rule of Law. Italy De Benedetto Maria, Professor of Administrative Law, Roma Tre University. Latvia Daiga Rezevska, Judge of the Constitutional Court of the Republic of Latvia; Professor, Faculty of Law, University of Latvia, Ad hoc Judge of the European Court of Human Rights; Visiting Professor at Riga Graduate School of Law. Lithuania Jurgita Malinauskaite, Reader in Law (Associate Professor), Brunel Law School, Brunel University London. Aušrinė Pasvenskienė, Vice-Dean, Lecturer, Researcher at the Faculty of Law, Vytautas Magnus University (Kaunas, Lithuania). Luxembourg Volker Heydt, Lawyer (Hamburg Bar), formerly, Official of the European Commission. Malta Ivan Sammut, Senior Lecturer, European & Comparative Law, Faculty of Laws, University of Malta; Head of Department, European & Comparative Law, Faculty of Laws, University of Malta.

List of Authors  xiii Netherlands Sjoerd E. Zijlstra, Full professor of Constitutional and Administrative Law, VU University Amsterdam.; Professor of Legislation, University of Curaçao; President of the Dutch Association for Legislation. Emile Beenakker, Policy Coordinator and Senior Legislative Lawyer at the Ministry of Finance, Financial Markets directorate, The Hague. Norway Jon Christian Fløysvik Nordrum, Associate Professor (legislative studies, administrative law) at the Department of Public and International Law, Faculty of Law, University of Oslo. Poland Jacek Sokołowski, Kierownik, Centrum Badań Ilościowych nad Polityką, Uniwersytet Jagielloński; Director, Centre for Quantitative Research in Political Science Jagiellonian University. Portugal Joao Tiago Silveira, Professor of Administrative and Constitutional Law, Lisbon Law School; Vice-President, Instituto de Ciências Jurídico-Políticas, Lisbon Law School; Member of the Board of the International Association for Legislation. Romania Emőd Veress, Head of Private Law Department, Ferenc Mádl Institute of Comparative Law (Budapest, Hungary); Professor, Department of Law, Sapientia Hungarian University of Transylvania. Slovakia Milan Hodás, Associate Professor of Constitutional Law, Comenius University, Faculty of Law, Bratislava; Researcher at the Institute of State and Law, Slovak Academy of Science. Slovenia Polonca Kovač, Professor of Administrative Law, Faculty of Public Administration, University of Ljubljana, Katerina Fabrizio, former young researcher at the Faculty of Public Administration, University of Ljubljana. Spain Mario Hernandez Ramos Mario, Assistant Professor of Constitutional Law at Salamanca University; Research Fellow, Institute of Global Governance, University of Salamanca; Cabinet Advisor, Ministry of Justice, Government of Spain. Sweden Cyril Holm, Stockholm Centre Oxford Fellow, Institute for Comparative and European Law, Faculty of Law, University Oxford. Johan Danelius, Director-General at the Ministry of Justice.

xiv  List of Authors Switzerland Uhlmann Felix, Professor of Constitutional and Administrative Law and Legislation, University of Zurich, Stefan Höfler, SNSF Professor, Co-Head of the Centre for Legislative Studies, University of Zurich, Markus Nussbaumer, Head of Internal Drafting Committee, Swiss Federal Administration, Swiss Federal Chancellery, Bern. United Kingdom Helen Xanthaki, Professor, University College London; Dean, Postgraduate Law programmes, University of London; President, International Association for Legislation. Constantin Stefanou, Director, Sir William Dale Centre for Legislative Studies, Institute of Advanced Legal Studies, University of London. European Union William Robinson, Associate Research Fellow, Institute of Advanced Legal Studies, University of London; formerly, Legal Reviser at the Court of Justice of the EU; and Coordinator in the Quality of Legislation team of the European Commission Legal Service.

1 Legislation in European Countries ULRICH KARPEN AND HELEN XANTHAKI

Introduction: Law, Legislation and Legisprudence This chapter brings together the main themes of the book and attempts to identify prevalent trends. However, it does not become judgemental: each legal system has its own balances and solutions; bringing forward a part of that balance by identifying isolated best practices does not really do the other legal systems justice. Also, it detracts from the beauty of the richness of practices, which are abundant in the European Union (EU). Perhaps this richness and non-judgemental acceptance of it makes the EU what it is, a union of peoples, states and laws. This chapter offers examples of the points that it makes in parenthesis. These are not exhaustive lists of legal systems where the point applies, but are indicative examples only. Laws are the main instruments of governance in a democratic state based on the rule of law. The constitutional state pursues security, stability and social objectives. Legislation, as a tool for regulation, brings together policy concepts, regulatory choices, legislative ­interventions and evaluations. Laws are general abstract norms as opposed to decisions in particular cases. Legisprudence is a field within legal studies dedicated to researching and teaching about the theory and practice of legislation. First, legisprudence is a theoretical science. It is descriptive and applies the methodology of humanities. It serves the drafting and interpreting of legal texts. It also uses empirical methods of social and political sciences in order to understand better processes of legislation. Second, it is a practical science. It is prescriptive and normative. It wants to direct actions and support good legislation. The volume of legislation and its ongoing growth as well as the decreasing quality of laws give rise to constant criticism and debate in most countries that are members of the Organisation for Economic Co-operation and Development (OECD) and the EU, such as Finland and Slovakia. Reducing the quantity and improving the quality of legislation are targets within programmes for ‘Better Regulation’ both in the EU and in national jurisdictions. This is where legisprudence can be of some help. Analysing effective procedures in government and parliaments, assisting in the proper development of content and form of drafts, as well as standards for evaluation and control – these are the fields of work of practical legisprudence. As is generally the case in constitutional democracies, laws are the dominant instruments of policy-making and governance. Consequently, the functions of law as well as the legislative process are of central importance in every jurisdiction. However, both function and

2  Ulrich Karpen and Helen Xanthaki management are undergoing significant changes. These changes are primarily caused by the development of a multi-layered system featuring an increasing importance of the European level. Comparative legisprudence and converging procedures and styles of legislation can be observed. Both Swedish and Romanian law are influenced by German legislation. Slovakia adjusts its drafting contents and procedures to EU law in order to enhance integration, and Latvia addresses EU law requirements in the drafting of legislation. There can be no doubt that there is a revival of legisprudence induced by a comparative view of legislation in legal education and research. One result of even global comparison of ‘Better Law-Making’ is a cross-national fertilisation.1 As a theoretical and practical approach to legislation and legisprudence, this book tries to contribute to ‘better legislation’. All country reporters – in very broad terms – deal with the following points: • the constitution of the country is the institutional frame and guiding principle of all legislative action; • the law is one instrument – albeit the most prominent – of governance and regulation; • the process of legislation must be transparent and participative; • the ultimate target of law-making should be the good, just and fair norm; • instruments of the law must be effective and proportionate; • the form of law must be well structured, clear and understandable; • legisprudence should be a practical science, directed not only at scholars and students, but also drafters.

1.1.  Law-Making in the Constitutional State 1.1.1.  Procedural and Substantial Principles of the Constitution The system and standards of law-making are essential elements of the constitutional state, which is imprinted by democracy and the rule of law. The constitutional state is attached ‘to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’ (Preamble of the Treaty on European Union (TEU)). The constitution of a state is the framework of government (Article 13 TEU), which is exercised by the people and institutions representing the branches of government. One of the cornerstones of the division of powers is access to an independent judiciary. Governmental authority may be conferred upon territorial tiers of the state. The constitution also contains directives as guiding principles for state actions, aims and objectives, eg, public welfare, social rights and ecological goals (Article 3 TEU). All EU Member States are rule-of-law pluralistic and liberal democracies. However, understanding legislation and

1 I Bar-Siman-Tov, ‘The Global Revival of Legisprudence: A Comparative View on Legislation in Legal Education and Research’ in AD Oliver-Lalana (ed), Conceptions and Misconceptions of Legislation (Cham, Springer, 2019) 275, 288.

Legislation in European Countries  3 legislative processes is dependent on the political system and political culture of that given country.2 Even though each of the countries covered in this book has its unique political structure, they all at least aspire to democracy, the rule of law, the separation of powers and the independence of the judiciary. But along with these fundamental similarities in the constitutional and political framework, there are important differences which affect the functioning of the law, organisations and the process of legislation. The constitution regulates the main structures of governance of the state, including the form of government, the separation of powers and institutions thereof with their respective competences, and (finally, if there are present) layers of governance, territorial subunits and municipal governance. All EU Member States have at the central level an executive which is split into the government and the head of state (either the monarch or the president). Almost everywhere the parliamentary democratic type of government prevails. Some states have a (constitutional) court system, where judges have the competence to review the constitutionality of law, be it ex ante or ex post – or only the latter. The UK is a parliamentary (rather than constitutional) monarchy. Perhaps as a result of the parliamentary sovereignty, there has never been a fully codified constitution in the UK. However, it would be inaccurate to say that there is no constitution at all (Magna Carta 1215 et al). The UK has a written constitution, spread across many documents, but does not have a codified constitution. The Swiss Constitution underlines democratic and territorial principles: the Confederation is formed by the ‘people and the cantons’. In Austria, the basic principles of the Constitution (democracy, republic, federal structure and the rule of law (‘Rechtsstaat’)) and ordinary constitutional law are divided. In Sweden, for example, the ‘Nordic legal tradition’ stresses democracy as the power of the people exercised through their elected representatives. This particularity and the pragmatic approach of policy have a significant impact on legislation. There have been – mostly on a sub-constitutional level – many changes in view of legislation, evaluation of laws, instruments of enhancing better legislation. In France, as a good example and more recently, procedural and substantial legisprudence have rapidly developed in practice, although some of its principles and tools were enshrined in the Constitution or in secondary constitutional legislation and did not change. As in many other legal systems, in France, substantial legislation has focused mainly on evaluation techniques for the preparatory phase of a bill, although ex post legislation steps have not been ignored. In addition to France, Belgium describes its governmental system as a parliamentary monarchy, a federal form of territorial distribution of power based on linguistic divisions, with the rule of law, democratic welfare state and political pluralism as the main constitutional principles. Denmark is a constitutional monarchy. Poland is a semi-presidential system. The president is elected by the people, but does not have legislative or executive powers. Most national constitutions in Europe as well as the Treaties of the EU include guiding principles, values and directives. Values can be defined as broad preferences concerning appropriate courses of action or outcomes. A principle is a standard to be observed not because it will advance or secure a political, economic or social situation that is deemed desirable, but because it is a requirement of justice or fairness, or some other dimension of

2 W Ismayr, ‘Gesetzgebung in den Staaten der Europäischen Union im Vergleich’ in W Ismayr (ed) Gesetzgebung in Westeuropa, EU-Staaten und Europäische Union (Wiesbaden, VS Verlag für Sozialwissenschaften, 2008) 9.

4  Ulrich Karpen and Helen Xanthaki morality.3 Guiding principles impose on all organs of government, namely the legislature, an affirmative duty to see that they are realised in practice.4 Principles may be explicitly mentioned or read into the constitution ‘by interpretation’ (eg, the social state in Germany, respect for human dignity in Latvia and political pluralism in Spain). Article 2 TEU reads as follows: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail.’ To give an example of interpretation, the German Constitutional Court5 confirmed the general right to personality in some human rights of the Constitution, which is not a shorthand expression of the other guaranteed rights. Statute law in France was once considered to be the ultimate expression of rationality. Since at least the eighteenth century, the quality of legislation has predominantly produced law that is uniform, rational, general and stable (‘legicentrisme’). In the 1980s, new requirements of good and efficient legislation emerged. This observation is true for almost all European states. A well-accepted view was that the increasing number of laws was leading to a rapid deterioration in their quality, for example, in France: too technical, sometimes too general and non-binding. The opinion was spreading that laws are generally poorly drafted, to the detriment of the economy and society, for example, ‘junk law’ in Hungary. In the 1980s and 1990s, policy required ‘Better Regulation’, which signified less quantity and more quality. Legisprudence assisted in re-discovering the notion that rationality should be the first legitimation of law-making. Of course, rationality should be as an essential element of democracy and the rule of law (eg, in Belgium, France and Hungary).6 Law-making should follow the route of: • • • •

legal rationality: accordance and consistency with the constitution and the legal system; procedural rationality: discursive and participatory rationality, as well as judicial review; substantial rationality: effectively reaching the targets with most practical instruments; formal rationality: applying best style and language of the law.

1.1.2.  Fundamental Rights All jurisdictions presented in this book are liberal democracies based on the rule of law. The fundamental mandate of the EU, as expressed in EU legislation, is to create an area of freedom, security and justice. The second recital of the Preamble to the TEU reads: ‘Drawing inspiration from the … inheritance of Europe, from which have developed the universal

3 K-P Sommermann, Staatsziele und Staatszielbestimmungen (Tübingen, Mohr-Siebeck, 1997) 360. 4 P Kommers and RS Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd edn (Durham, NC, Duke University Press, 2012) 57. 5 Federal Constitutional Court, 35 BVerfGE 202, 221 (1973) (Lebach). 6 K Messerschmidt and D Oliver-Lalana, ‘On the “Legisprudential Turn” in Constitutional Review: An Introduction’ in K Messerschmidt and D Oliver-Lalana (eds), Rational Lawmaking under Review (Cham, Springer AG, 2016) 6 ff; U Karpen, ‘Efficacy, Effectiveness, Efficiency: From Judicial to Managerial Rationality’ in K Messerschmidt and D Oliver-Lalana (eds), Rational Lawmaking under Review (Cham, Springer AG, 2016) 295, 300.

Legislation in European Countries  5 values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.’ Human dignity must be respected and protected (Article 1 of the EU Charter). All fundamental rights sections in the constitutions of European countries explicitly protect the freedom and liberty of persons (eg, Switzerland). Sweden mentions ‘maximisation of delegation of sovereignty to the individual’ as a guiding principle of its jurisdiction. ‘Everyone is equal before the law’ (Article 20 France). ‘In all its activities, the Union shall observe the principle of the equality of its citizens’ (Article 9 TEU). People can only be equal before a general law (for more on this, see section 1.2 below). The law is a necessary guarantee of freedom, equality and democracy. Law-making is a core of rule of law. (Constitutional) courts are the watchdogs of freedom and equality. Democracy is based on free and equal voting. ‘Every citizen shall have the right to participate in the democratic life of the Union’ (Article 10(3) TEU). On the basis of the individual rights of freedom and dignity, solidarity, and state regulation, everyone is entitled ‘to social security benefits’, including the right … to social … assistance so as to ensure a decent existence’ (Article 34 of the Charter of Fundamental Rights of the European Union (CFR)). This provision and national constitutional regulations are the basis for social security policies, which account for a large proportion of legislation in European countries.

1.1.3. Democracy Representative democracy is a European tradition (seventh recital of the Preamble to the TEU; Article 10 TEU). Voting systems make the difference in states. The UK has a simple-majority voting system (first past the post), while all other jurisdictions have either a proportional or mixed voting system. In most countries, the representative democratic principle is supplemented by direct democratic decision-making procedures. These are mainly referenda in the case of amendments to the constitution or in cases of statutory legislation (eg, in Ireland, Denmark, Estonia and Latvia). Referendum procedures are anchored in the constitution (as in Ireland and most countries) or lack this basis (as in the UK). Plebiscitary procedures have a legitimising function, as they make a political decision visible to the people and put it in the hands of the voters. Referenda can be used to decide on matters that are contested (eg, in Austria and Spain). They are important tools to tame party democracy. Referenda in European countries are of very diverse kinds. Switzerland has far-reaching participatory rights of the people. Some observers call it a ‘half-direct democracy’.7 Referenda may be consultative, suspensive, assertive or amending. The main types are referenda on the basis of people’s initiatives (as in France, Italy, Latvia, Slovenia and Hungary), facultative (Estonia), on a proposal by parliament (Estonia) or the head of state (Latvia and Romania with reference to advisory referenda initiated by the President), or obligatory (as in Denmark, Ireland and Latvia). Ireland has successfully experimented with citizens’ assemblies as a way to gain greater democratic legitimacy for controversial new laws. As far as statutory laws are concerned, the people are called upon to decide on important problems, like electoral reform, same-sex marriage, abortion and climate change

7 A

Weber, Europäische Verfassungsverleichung (Munich, Beck, 2010) 123.

6  Ulrich Karpen and Helen Xanthaki (as in Ireland). In Lithuania, there are two types of referenda: consultative and obligatory. In Latvia, constitutions list the issues that cannot submitted to a referendum, such as the budget, taxes, custom duties and a declaration of a state of emergency.

1.1.4.  The Rule of Law Next to human rights and democracy, the rule of law is the third pillar of the constitutional state in Europe. The rule of law is based on the idea of the just state and provides the means to safeguard against the arbitrary use of governmental power (as in Belgium). The terms ‘état de droit’, ‘stato di diritto’, ‘Rechtsstaat’, ‘estado de derecho’, ‘estado de direito’ and ‘rule of law’ have slightly differing connotations. However, the main principles have been accepted in all European countries. These are legality of all activities of the state, the separation of powers, security under the law and trust in the law, freedom and fundamental rights, the equality principle, the proportionality of government actions, due process8 and more. These principles are explicitly listed in European law and state constitutions or are traditionally interpreted (as in the Czech Republic) from the general Rechtsstaats/rule of law clauses (Preamble to the TEU, second and fourth recitals, Articles 5 and 7 TEU; Article 2 of the European Convention on Human Rights (ECHR); Articles 47–50 CFR). For legislation procedures, the most important notion of Rechtsstaat/rule of law is the division of powers. Legislative, executive and judicial functions are divided and assigned to separate organs or groups thereof (for instance, two houses of parliament). The division of powers enables mutual control and avoids misuse of powers (Articles 14, 17 and 19 TEU). The legislature, the executive and the judiciary represent the branches of government. They are also bound by the constitution. The law takes precedence over acts of the executive and the judiciary (priority of the law, priorité de la loi, privista delle legge).9 Under the principle of parliamentary reservation (réserve de loi, riserva di legge), all actions of the state are based on – or limited by – parliamentary law (as in Lithuania, Switzerland, France and the Czech Republic). This is essential in particular for regulations, which set limitations on fundamental rights and freedoms. Furthermore, under the rule of law and the separation of powers principle, everyone has access to an independent judge. In the parliamentary system of government, the legislative power is divided between parliament and government. Parliament has primacy in making laws and is supported by parliamentary majority as a result of elections. Parliament may be unicameral or bicameral. In the unicameral system, the nation is represented in one chamber. Norway has only one chamber and bills are passed through two plenary decisions. In the bicameral system, the second chamber (the Senate, as in the Czech Republic, Italy, Romania) may represent ­territorial sub-units (as in Austria, Denmark and Spain), corporate representations of interests (as in Ireland, Slovenia and Poland), the people (as in the Czech Republic) or the nobility (as in the UK). The UK House of Lords is the largest second chamber in Europe.

8 LH Tribe, American Constitutional Law, vol 1, 3rd edn (New York, Foundation Press, 2000) 4. 9 Article 20, para 3 of the Basic Law of Germany (the Constitution): ‘The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.’

Legislation in European Countries  7 The second chamber may have equal power (symmetric in Switzerland and Italy) or, often politically, less power (asymmetric in France, Austria, Spain, the Netherlands and the UK) than the first chamber. The Constitution may demand the consent of the second chamber or even give it competence to veto the first chamber’s decisions (or both, depending on the type of legislation, as the Federal Council Bundesrat in Germany). In Europe, the parliamentarian system of government prevails. In contrast to presidential systems (ie, that of France), in the parliamentarian system, the government is dependent on the confidence of parliament, not only in terms of its capability to take action but also in its existence. It requires permanent cooperation with the majority in parliament, not only in governmental primary area legislation, but also in other areas of decision-making. The executive power is the head of state, and the government in the form of the prime minister, ministers and the cabinet. The cooperation of parliament with the government may be of majoritarian competitive democracy type (following the Westminster model) or coalition – or even in the form of a minority democracy, as in most European states. Most initiatives for legislation in practically all European states originate in government. One may consider (constitutional or supreme) courts not merely part of the judicial system, but also part of the legislative system.10 Many European countries established constitutional courts in their constitutional order (eg, Bulgaria, Germany, Slovenia, Estonia and Latvia). Typically, these courts decide on procedures of interpretation of the constitution, the constitutionality of statute law (ex ante, ex post or both), the constitutionality of international treaties and other constitutional issues. Applications may be filed by the head of state, the government or a certain number of members of parliament. Constitutional courts are guardians of the constitution and are bound only by its provisions. In judicial review procedure, they can repeal (as in Austria) or annul laws (as in Germany and Latvia), which is a sort of ‘negative legislation’. But judicial review may be ‘positive legislation’ in the sense that it has become more common for some courts (whether constitutional or supreme) to establish explicitly new general rules (as in Sweden, Germany and Latvia). Some courts are activist or, as poignantly termed, as ‘norm givers’. Of course, questions are raised as to whether this type of judicial review – in view of parliamentary judicial review and the establishment of a new law by constitutional interpretation – is consistent with the demand for democratic legitimacy in legislation (as in Sweden, Germany and the Czech Republic). In cases of ex ante review of laws, the court can be an ‘independent semi-political actor’ in the law-making process (as in Poland). In Denmark, courts only have the competence to review the constitutionality of laws ex post. In France, it is the Conseil constitutionnel which reviews laws and leads to a constitutionalisation of law (fundamentalisation of law). Moreover, in the UK, judicial review of national and European law has gained ground. The ‘supervisory jurisdiction’ before the High Court has its basis in common law, although no UK court has the power to declare primary legislation void. Of course, jurisdiction of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) constitutes a source of constitutional case law.

10 D Grimm, ‘Legislation and Constitutional Courts’ in U Karpen (ed), Legislation in European Countries (Baden-Baden, Nomos, 1996) 473.

8  Ulrich Karpen and Helen Xanthaki

1.1.5.  Legislation in Multi-layered Systems Multi-layered constitutional systems in states are characterised by the territorial allocation of legal, executive, and judicial competences of government. The exercise of authority at a central level, a regional/federal and a local level enhances cultural freedom and autonomy, as well as democratic participation and the vertical separation of powers. Particularities of economic and social development and bottom-top political legitimacy are promoted under the principle of subsidiarity. The Constitutions of Austria, Germany, the Czech Republic, Belgium, Estonia, Italy and – after devolution – the UK contain multi-layered systems. In Europe, the tendencies of unitary systems in ethnically and socio-culturally comparatively homogeneous states have administrations imprinted by decentralisation, regionalisation and federalism. This is true in particular in states with ethnocultural and/or socio-economic divisions. Legislation is distributed between the central state and the regional sub-units. There are various models for assigning competences: • exclusive legislative competences either by the central authority or the regional authorities; • concurrent or additional competences, with priority at the centre; and • framework competences at the central state with residual competences at lower levels of governance, with a possible presumption of competence either with the central state or with the lower levels of governance. Under a national constitution, of course, procedures and guidelines of sub-national legislation are more or less homogeneous. For that reason, in what follows, this book focuses on central legislation. The lower units usually participate in central legislation, be it in unicameral or bicameral systems. Multi-layered systems of legislation are in a permanent state of dynamic development. Tension forces pull the regionalised and federal state into a unitary state (eg, in Austria and Germany) or the unitary state into forms of decentralisation or autonomy (eg, in Spain and Catalonia). In the UK, the model is devolution, with executive and legislative powers being devolved to three of the regions of the UK: Scotland, Wales and Northern Ireland. In unitary states, executive powers are usually delegated to territorial corporations (as in Norway, Sweden, Ireland, Hungary and Greece). Competences are delegated from the centre and authorities are subject to systematic hierarchical monitoring as a form of legal and opportunity control (as in Latvia). Decentralised unitary systems provide autonomous regulation authority to the sub-units (as in Poland (województwo), the Netherlands (provinces and municipalities), Denmark, Finland and Portugal). In France, territorial corporative entities (départements, governed by a préfet) have gained some new powers following a process of decentralisation in the 1980s. However, the national parliament is the only law-maker. The Netherlands is a decentralised unitary state as well, with the provinces and municipalities enjoying legislative power. Yet, central government has the authority to declare null and void any act by a lower authority. Regions are governmental units in between decentralised and federal layers in a state, like in Italy, Spain, the Czech Republic, Portugal and the UK. In Italy, the powers of the state are listed in the Constitution as exclusive or concurrent; anything outside this exclusive list is presumed to be a competence of the regions.

Legislation in European Countries  9 In Spain and Italy, the Senate as the representation of territorial sub-units is the second chamber. The UK is not a single jurisdiction. The processes and styles of legislation differ substantially in the devolved jurisdiction of Wales, Scotland and Northern Ireland. It is an asymmetric decentralisation. There is a Parliament in Scotland, an Assembly in Northern Ireland and a National Assembly in Wales, all with restricted legislative authorities. Switzerland is a confederation, whereas Austria, Belgium and Germany are federations. In Switzerland, the cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution. They exercise all rights that are not vested in the Confederation. Switzerland regards subsidiarity as a key principle. In a hierarchical manner, the people precede the cantons and these precede the central government. Switzerland is a model of concordance democracy. The Second Chamber of the confederal parliament is the State Council (Ständerat), alongside the National Council. In contrast to the ‘decentralised’ Switzerland, the Austrian federation is very much ‘unitary’ in nature. The states (Länder) are oriented towards the central government. The major areas of legislation are assigned to the competence of the Federation, while the legislative procedure does not significantly differ from that of the Federation. Courts are exclusively federal ones. Belgium is a federal state, consisting of three communities and three regions with overlapping jurisdictions (Flanders, Wallonia and Brussels). Complex areas of legislation are dealt with at both levels. Germany is a federal state, with explicit fields of legislation remaining with the central layers of government and all the others remaining with the states (Länder). The federal legislature has exclusive and concurrent competences. The presumption of legislative areas is for the states. The legislative core rests with the federal level; administration is to a larger extent a matter for the states. In contrast to Switzerland, the country is not a ‘concurrent’ but rather a ‘competitive’ federation. The Constitution, however, in the concurrent area of legislation provides that the establishment of equivalent living conditions throughout the federal territory as well as the legal or economic unity must be guaranteed. That is an important restraint on competition among the states and pulls towards harmonisation. The ‘second house’ of the legislature is the Federal Council (Bundesrat), which consists of members of state governments. In some areas it must agree with the House of Representatives (Bundestag); in most fields, it may simply enter an objection, which can be overridden by the Bundestag. In all federations, as described, the states – in following the unification trend – conclude agreements on substantive matters (like education on legislation) or the organisation and procedures of administration. This creates an intermediate level of government located somewhere between the (con)federal and the state (cantonal) levels. In fact, in federal states there is an even more multi-layered legal system: the fivefold division of competences is European law, federal law, inter-state law, state law and communal law. European legislation is legitimised by the Member States. The EU is a multi-layered system inspired by federal ideas. It is neither a confederation nor a federation, but rather a ‘composite’ state. It is one form of ‘open statehood’, which is an association of states that allows sovereign states to let supranational or international law flow into national legal orders. The constitutions of EU Member States authorise governments and parliaments to integrate into the EU and therefore transfer parts of sovereignty to Brussels (as in Italy, France, Germany, Latvia and Slovenia). The position of EU law within the hierarchy of laws is discussed in section 1.2.2. This book is limited to national procedural and substantive legislation, although a very high percentage of legal acts in Member States originate from EU sources.

10  Ulrich Karpen and Helen Xanthaki

1.2.  The Law 1.2.1.  Laws and Other Types of Regulation Laws as subject of legisprudence are general, abstract norms, as opposed to individual decisions in a particular case. Norms, as a rule, apply to many cases. They are abstract and thus apply to many addressees; they are general and thus do not decide on particular cases. The general law guarantees freedom and sets boundaries for it. The law must be abstract in content to ensure that addressees/people can be equal. The general and abstract norm makes the legal system consistent. The law is the primary and central instrument of government in a liberal and democratic rule-of-law state. The law regulates the organisation and procedure of governmental institutions, protects individuals’ rights and serves as the single and most important instrument to distribute and allot social services. Usually, the budget of the state is decided in the procedure of parliamentary law. In general, the hierarchy of laws in European jurisdictions is as follows: • • • • •

constitutional laws; lois organiques; parliamentary statutes; delegated laws and ordinances; other sources of law.

Poland also includes in its Constitution a precise and exhaustive list of laws. This chapter will mainly focus on statutes of central government; only when it is directly relevant will decentralised legislation come into the picture. In Hungary, the Constitution is not considered as ‘law’, but instead as the ‘foundation’ of the legal system that will be binding on everyone. In general there are ‘Cardinal Acts’, which require a two-thirds majority in Parliament; they are not higher in the hierarchy than a statute, but their content is of great importance. The chapter on the UK is limited to Westminster and UK Public Acts, although reference is made to devolved and local acts and delegated legislation for the purpose of detailing the sources of law. Private, local and personal acts which apply to specific people and places may also be adopted by the Westminster Parliament. The same is true of church measures. France has a highly codified system of laws. The perception is living: ‘the law is the ultimate expression of the “general will”’ (‘légicentrisme’ in French). The second level in the hierarchy of laws below the constitution are ‘lois organiques’. In French legislation, since the new Constitution of 1958, three facets of legislation can clearly be observed. First of all, there is the constitutionalisation of law by the ‘Conseil Constitutionnel’. This development is gaining ground in other jurisdictions as well, such as Germany. Second, there is the globalisation of laws under the influence of international and EU law. This non-subsidiary drive towards the greater unit and international relations is not a French peculiarity. This is also true for a third observation of French legisprudence: the expansion of sub-statutory and soft law. The Netherlands has a clear hierarchy of laws as well. There are the Constitution and Acts of Parliament (‘wet in formele zin’) as the first level, royal decrees as the second level and ministerial decrees as the third level. Slovakia differentiates between the Constitution and constitutional laws, laws adopted by Parliament and generally binding regulations of municipal and higher territorial units (self-government).

Legislation in European Countries  11 All these three categories are counted as primary legislation. Semi-primary laws are governmental regulations for the harmonisation of national law with EU law. Secondary legislation covers subordinate legislation, government regulations and norm contracts.

1.2.2.  Constitutional Law The Constitution is the fundamental law of the country, regulating the organisation and procedure of branches of government, the territorial structure, human rights and freedoms, and principles of ‘preferred ways of life’. European countries mostly have written and codified single-document constitutions, except for the UK (which has a mostly written but uncodified constitution) and the Netherlands (which has two documents). All authorities are bound by the constitution, the executive and the judiciary in addition to law and justice. This fact is the principle of a hierarchy of norms, which constitutes the legal system. The repealing of a constitutional act or the abrogation of a fundamental right regularly requires special procedures in parliament and – in some constitutions – the observance of material barriers. Usually, a two-thirds majority in parliamentary voting is required, which normally requires the cooperation/inclusion of the opposition. In addition, in some countries a referendum is required to provide legitimacy from the people. A further hurdle may be a constitutional court. Some constitutions (such as those in the Czech Republic and Germany) contain a so-called ‘material core’, which prohibits any changes in the essential requirements of the rule-of-law state, fundamental rights and freedoms, and the unity or territorial structure of the country, or an ‘inviolable core of the Constitution’ (as in Latvia). Austria has no single constitutional document; instead, there are various constitutional acts and a high number of so-called ‘constitutional provisions’ in statutory law. There used to be more than 1,000 of these provisions which initiated a huge project of ‘clearing up the constitution’. The Dutch Constitution is a very concise document. The latest general revision (of 1983) specifically aimed at giving the legislator as much room as possible for shaping the law of the land. Some countries have very detailed and long constitutions (eg, Poland, Bulgaria and Hungary).

1.2.3.  Organic Laws Organic laws are laws which implement the constitution, although they are neither formal nor in their substance amendments of the constitution. They do cement the constitution (such as the French lois organiques and the Spanish leyes orgánícas). This special function of a law could be underlined by a special procedure of enactment or a special rank in the hierarchy of laws. For example, in Estonia, an organic law must be adopted by a majority of Members of Parliament. In Norway (where there is no system of express organic laws) there are semi-constitutional norms incorporating the norms of the European Economic Area (EEA) and human rights. Organic laws regulate on fields of fundamental importance for the state. Sometimes the enactment of such areas is expressly stipulated in the constitution (for example, in France, Romania and Portugal): • electoral law; • the organisation, functioning and financing of political parties; • referenda;

12  Ulrich Karpen and Helen Xanthaki • the organisation of government; • public service; • protection of minorities. In Hungary, a rank higher than ordinary statutes is attributed to statutory law as a supplement to the Constitution (cardinal acts). This applies to laws for local government, prosecutors etc. In Luxembourg, the chamber decided to create (in the Constitution) an intermediate category of legislation, between the Constitution and ordinary law, similar to the organic laws in France. Altogether, it can be established that organic laws within the hierarchy of sources of laws play an extraordinary and – in legislative practice– important role.

1.2.4.  Statutory Laws Statutory laws are the primary and central instruments of democratic governance, much more so than any other form of regulation. They take precedence over all lower types of general and abstract norms. The rule of law principle requires a reservation of parliamentary law for any restriction of fundamental rights and freedoms as well as important orders for the organisation and procedures of authorities. The Swiss constitution demands – even more broadly than the above-mentioned notion of reservation of law – that ‘all activities of the state are based on or limited by parliamentary law (Art 5(1))’. It is not sufficient that non-burdensome regulation like delivering public services or other benefit management is based solely on the ‘social state’ principle of the constitution. Portugal and Germany apply parliamentary law, which is not necessarily of a general and abstract character, like urgent planning decisions in infrastructure. In all countries, the adoption of the budget and, in most countries, the ratification of international treaties by parliamentary acts in the form of a statutory law may be mentioned in this context (eg, in the Netherlands). The Constitutional Court of Belgium can find that an individual act in the form of a statute is contrary to the Constitution if its purpose is to circumvent the usual guarantees in the administrative regulation procedure or to hinder judicial review. In Finland, one main goal of the reform of the Constitution in 2000 was to widen and ensure the role and significance of the law enacted by Parliament on the costs of decrees and other lower-level regulation.

1.2.5.  Statutory Instruments and Ordinances Subordinate legislation, delegated laws, ordinances and secondary legislation are general – abstract – norms issued by administrative bodies and authorised by parliamentary law. Pieces of secondary legislation by far outnumber parliamentary statutes in all European countries. The reasons for this increase are time pressure on government, technicality of the subject matter (as in Austria), flexibility of norms and exceptional situations (as in the Czech Republic and France). Organs which may authorise secondary legislation may be the cabinet, a minister, regional state governments (in federations) or subordinate authorities. In some countries, there is a hierarchy of statutory instruments (as in Belgium,

Legislation in European Countries  13 Germany, Spain and Luxembourg). Important ordinances require the consent of the cabinet or even of the second chamber (eg, in the UK, Germany and France). In the EU, a legislative act may delegate to the European Commission the power to adopt non-legislative acts of general application to supplement and amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act. The essential elements of an area must be reserved for the legislature and accordingly must not be the subject of a delegation of powers (Article 290 of the Treaty on the Functioning of the European Union (TFEU)). Similar provisions are to be found in national constitutions (eg, Austria, the Czech Republic, Estonia, Germany, Italy, Poland, Portugal and Sweden). This restriction of the empowerment of the executive allows for parliamentary control ex ante and ex post as well (as in the UK, France, Italy and Spain). In some countries (eg, Romania), the government may issue emergency ordinances without an enabling law; some of these are debated in an emergency procedure in parliament. This has a curtailing effect on the rule of law. In the UK, in general, delegated legislation is regarded as a constitutional anomaly, in that it allows the executive to legislate in contradiction to the principle of the separation of powers. However, it is legitimised by the advantages of speediness, flexibility and efficiency. In France, within the framework of ‘rationalised parliamentarism’, secondary legislation plays a different role. Statutes must determine the rules only in areas as listed in the constitution. Matters other than those falling within the scope of statutory law are matters for executive regulation. This is a non-delegated, original competence of government. Furthermore, in order to implement its programmes, the government may ask parliament for authorisation, for a limited period of time, to take measures by ordinance that are normally the reserve of statute law. This regulation resembles delegated legislation in other jurisdictions. In the Netherlands, the involvement of Parliament may be secured in a special manner. The statutory act which authorises a royal decree may add the provision that the proposal is sent to Parliament, thus enabling both Houses of Parliament to discuss the matter with the responsible minister.

1.2.6.  Other Sources of Law Regulations by autonomous bodies (by-laws) are adopted by local authorities (municipalities, counties etc), universities, chambers (of commerce etc), for the area of their responsibility (as in Switzerland, the Netherlands and Italy). There are regulations by non-state-actors, eg, collective labour agreements, which could be declared as generally binding for employers and employees. The adoption of the budget as a calculation of public funds and the integration of international treaties are particular regulatory functions based on a formal but not substantive law of parliament. Policy rules of administrative bodies, written as general rules, are acts of ‘quasi-legislation’ (as in Ireland), not legislation. They guide administrative practice, including, inter alia, the interpretation of legislative provisions (eg, in Portugal and Slovenia). They have a limited scope of application. Finally, there are different types of soft law, like corporate governance codes, which in Sweden are compiled by the Corporate Governance Board and apart from the private business sector’s self-regulation. It complements the Swedish Companies Act and other regulations. Usually, the compliance with soft

14  Ulrich Karpen and Helen Xanthaki law is not mandatory but voluntary. The European Economic and Social Committee (EESC) has welcomed the EU Commission’s new policy communication,11 which mainly proposes measures of a soft law nature.

1.2.7.  European Law Although this chapter focuses on legislation in European countries rather than on EU legislation, a few remarks on EU regulations in the hierarchy of norms are required (see section 1.1.5 above). Under the principle of conferral, the EU is to act only within the limits of competences, which are explicitly conferred upon it by the Member States in the treaties, to attain the objectives set out therein (Article 5 of the Treaty on European Union (TEU)). The EU, making use of its competences, is bound by the principles of subsidiarity and proportionality (thirteenth recital of the Preamble and Article 5(1) TEU). EU regulations enjoy a directly binding effect on the institutions and citizens of Member States. Directives have to be transposed and implemented by national law (Article 288 TFEU). There is no consistent opinion on the issue of the rank occupied by EU regulations in the hierarchy of national laws. The Court of Justice of the European Union (CJEU) in Costa/Enel12 held that EU legislation takes precedence not only over national statutory law but also over national constitutional law. However, this opinion is only supported by a few constitutional texts and is not shared by the majority of national constitutional and supreme courts. The Irish Constitution is clearly consistent with the CJEU in directing that no provision of the national constitution invalidates laws as enacted, acts done or measures as adopted by Ireland before on or after the entry into force of the Treaty of Lisbon, which are necessitated by the obligation of membership of the EU (the situation is similar in Belgium, Luxembourg and Austria). The Irish courts likened membership of the EU to joining a moving train – its institutions develop over time and domestic institutions and constitutions must move with them. Slovakia is of the opinion that legally binding acts of the EU have primacy over the laws of the Republic. In Bulgaria, EU law has absolute primacy over domestic legislation. It is not clear whether it has primacy over the Constitution. The Estonian Constitution declares that the state may belong to the EU, provided that the fundamental principles of the Constitution are respected (the ‘protective clause’). This is also the opinion of the German Constitutional Court, which held that EU regulations are directly applicable and have precedence over national laws on the basis of an unwritten norm of primary EU law. In principle, this is true in view of national constitutional law as long as limits of transferable competences of the sovereign state authority are not exceeded. This is a clear safeguard of the intangible core of the constitution, which are fundamental rights and freedoms, and the federal parliamentary democracy.

11 Communication on the principles of subsidiarity and proportionality: strengthening their role in the EU’s policymaking COM(2018) 703. 12 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.

Legislation in European Countries  15

1.3.  The Legislative Process 1.3.1.  Legislation in the Regulatory Cycle This section deals with the following questions: who is the legislator, how is the legislator organised and what is the procedure for making legislation? Laws are made at the supranational level in the EU, at the national level and – in some states – at the sub-national level, like the states in federations or the cantons in Switzerland, the regions in Spain or other autonomous levels. This may be looked at as a vertical separation of powers. This chapter focuses on legislation relating to national central processes. EU legislation is dealt with in Chapter 32, and for sub-national legislative procedures, roughly the same rules apply as for procedures of legislation at the national level. This is justified by the principle of the homogeneity of law in the constitutional state (as in Austria and Germany). At the national level, all three branches of government are actors in legislation: the legislature, the executive and even the (constitutional) judiciary, if it has the competence to review, amend or even nullify laws. The latter is described as ‘juridification progressive des règles de méthode législative’.13 Laws are enacted in a procedure in which all constitutional organs/groups of organs participate, namely parliament and government. The main steps of this procedure are as follows: • • • • • • • • • •

an impulse as a request to legislate on a subject; analysis of the social problem and policy-setting; definition of targets and instruments of regulation; drafting; bringing the bill to parliament; deliberation of the draft in the house(s); adoption; implementation; monitoring; and amendment (if needed).

Here a new regulatory cycle starts. The basic structures of law-making are part of the constitution. Details are regulated in rules of procedure of parliament and government. Governments have established directives of good government to check the facts in detail, to make a sound prognosis, to balance the interests at stake, to carefully assess and monitor the impact of legislation, and to introduce amendments. This list of procedures is applied in all modern legislation (see section 1.4 below). This procedure of legislation may be roughly divided into three stages: the preparatory phase (section 1.3.2), the parliamentary phase (section 1.3.3) and the post-parliamentary/ 13 CA Morand (ed), Légistique Formelle et Materielle, Formal and Material Legistics (Aix-en-Provence, Presses Universitaires D’Aix-Marseille, 1999) 39.

16  Ulrich Karpen and Helen Xanthaki implementation phase (eg, in the UK, Germany and Latvia). Special procedures are prescribed by constitutions for participation of the people in law-making, as referenda (section 1.3.4) or amendments to the constitution, or laws to implement international treaties and the budget (section 1.3.5).

1.3.2.  Initiatives for Legislation: The Executive Phase Legislation is the primary responsibility of parliament. The competence for initiating a bill rests with the government (as in Austria, France, Germany, Latvia and Poland), the state president (as in Poland and Hungary), a certain number of deputies or political groups in parliament (as in Germany, Austria and Spain), single members of parliament, the second chamber (as in Italy, France and Germany), the people (see section 1.3.4 below), representatives of stakeholders (as in Romania and Italy with the Consiglio nazional per economia e lavore) or a combination of the above (as in Lithuania). Most initiatives for legislation originate with the government. The government is the ‘Lord of Legislation’ (as in Italy). Much – if not all – legislative work is vested in the government in the pre-parliamentary phase. ‘It is rare that parliament makes any significant changes in the bill’ (as in Norway). In the parliamentary system, the role of government is central (as in Luxembourg, Belgium, the Netherlands, Germany and the UK). Even in practice, the role of parliament in some countries can be described as reactive to government activities (as in Finland). However, the government is based and dependent on a majority in parliament. Therefore, the pre-parliamentary phase of legislation is an ‘executive phase’. Requests for legislation (impulses) are put forward by government commissions, expert groups, lobby groups, civil service and decisions of courts. In many cases, the result of a particular incident, which led to media attention, will induce legislative activity by the government. Parliamentary oppositions may use these channels. Many initiatives are prompted by EU directives. For each parliamentary session, some governments have a parliamentary agenda, which has been agreed before the session starts (as in the UK and also Slovakia). This agenda lists the bills which the government intends to bring to parliament. It is agreed at cabinet level and ‘is a mixture of political choices, needs, and affordability’ (as in the UK). The line ministers submit proposed bills to the cabinet (as in Sweden and Germany). The drafting process, which is the next step of the legislative procedure (which is, in turn, part of the policy process),14 begins when the drafter receives a request to draft a bill (as in the UK). This request originates in the government departments. The relevant ministry will usually assign a bill team to coordinate the work of policy officers, including specialists in the subject matter at hand. Drafting work is either centralised or decentralised. An example of the former is the UK. The drafting process, in practice, is a responsibility of the Office of Parliamentary Counsel, which takes over after the bill team has analysed the social problem, collected data and information. In close contact with the administrators in the relevant department, the Office writes the text of the draft. Both sides should be

14 C Stefanou, ‘Drafters, Drafting and the Policy Process’ in C Stefanou and H Xanthaki (eds), Drafting Legislation: A Modern Approach (Aldershot, Ashgate, 2008).

Legislation in European Countries  17 familiar with the problem and the possible solutions. Most European countries prefer a decentralised drafting system. The bill is drafted in the relevant ministries (as in the Czech Republic, Germany, Finland and Sweden). The ministry in charge starts a circulation procedure. All ministries which have a say in the field of drafting the bill in question may offer their opinions. This always includes the ministers of finance and justice. The lead minister organises the assessment of the draft and hearings with expert bodies and stakeholder associations (as in Germany). This decentralised procedure close to the addressees is preferable since domain knowledge and practical experience can easily be assessed at all stages of the drafting progress (as in the Czech Republic). Even if a bill is formally prepared by a parliamentary committee, the administration is usually tasked with the actual drafting of the text (as in the Czech Republic). In Poland, the drafting process in ministries is supported by a ‘good legislation centre’ provided by the government. In Slovakia, a legislative council of the government, which is composed of experienced lawyers and chaired by the minister of justice, coordinates and directs the activities of the ministries and other bodies concerning the preparation of the bill. Before the bill can be submitted to the council of ministers in order to be formally initiated in parliament, it is reviewed in the ministry of justice or legislative councils or ministerial committees (as in the Netherlands, Sweden, Poland and Germany) on its legal quality. In France, oversight bodies are included to assist the government in finally initiating a good law. These are the Conseil d’Etat, which acts as advisor to the government, and the Secretariat General du Gouvernement (SGG), namely its Service de la Legislation et de la Qualité du Droit. During the preparatory phase of legislation, the draft is presented to the public. The public is thereby informed about the government’s intention to create new legislation in the field, and the relevant social bodies, committees, institutions and stakeholder associations take oral and written evidence about the bill and the possible need to revise it before it is submitted to parliament (as in Sweden, Germany, Finland, Poland, France and Norway). In the Czech Republic, in theory, everyone can participate in this process; in practice, political parties and special interest groups submit their opinions. The administration in all countries analyses the responses and summarises them in a report. The final text of the bill is formally voted upon by the government (in the cabinet). Normally, any disagreements have been ironed by this point. The whole executive phase usually takes some time, depending on how controversial the proposal is. In particular, the need for consenting opinion is time-consuming in coalition governments. At this final point, the text of the draft is accompanied by an explanatory memorandum, advisory opinions (eg, from the council of state), the regulatory impact assessment (RIA) board, a synopsis (at least in the case of amendments, which make up the major part of legislation) and the government’s reaction to these documents (as in Sweden, the Netherlands and Germany, but only rarely in Austria). Finally, the draft is introduced into parliament.

1.3.3.  Debate and Adoption of the Law: The Parliamentary Phase The procedure the bill goes through before it becomes law is different in parliamentary systems with either one or two houses. Sweden, Norway, Finland, Slovenia, Estonia and others have unicameral parliaments; other countries have bicameral systems (eg. the House of Lords in the UK, the Senate in Belgium, the Council of States/Ständerat in Switzerland

18  Ulrich Karpen and Helen Xanthaki and the Bundesrat in Germany). The participation of these second houses may be symmetrical with that of the chamber of deputies – consent is required for the adoption of a bill (Switzerland) – or asymmetrical – veto- or objection-rights (Romania) – or mixed – partly consent requirement or a right to objection (Germany). The law must indicate which procedure it passed (‘with consent of the second house …’). The parliamentary process in the first house has several stages. In principle, law-making follows the Westminster model in European parliaments. The procedure starts with the first reading. This is the introduction of a bill to parliament, a formal stage without any form of discussion (as in the UK). The second reading is the first debate on the main principle of the proposed legislation. The government will make the case for the bill and the oppositional parliamentary group(s) will respond. No amendments can be made at this stage, but the main areas for debate are identified. At the end of the second reading, where applicable (namely not in Austria, Germany or Sweden), there is a vote which in parliamentary government systems is usually involves consent being given to the draft and its transmission to the committee(s) for close line-by-line scrutiny. The committees consist of members as nominated by the parliamentary groups according to a majority principle in the house. In all parliaments, the major share of the law-making work is done in committees. The area of responsibility of a committee usually mirrors that of a ministry. Alongside these standing committees, select committees or sub-committees may be set up to deal with particular legislative problems or to perform checks and balances control on government (as in the UK). One important – possibly the most important – body is the budget committee. Preparatory work for discussions in the committees or plenary debates is done in working groups of parliamentary groups of the parties. Amendments to the bill are introduced by opposition and government-supporting groups. The committees are the arenas of ‘bargaining and compromising’. The bill is then sent to the plenary for debating. This is the third reading. The debate deals with the whole legislative project, the details of the draft and the requests for amendments. The ‘technical details’ of amendments to adapt laws pass without discussion. Debates in general do not seek to change the views or opinions of opposition MPs or to convince them, but are mainly for the public and may serve as an instrument to strengthen the identity of the parliamentary groups. Debates in plenary are different in style and rhetoric in consensus-oriented (eg, Switzerland, Sweden, Norway and Finland) and conflict-influenced cultures (eg, the UK, Germany, Italy and France). Often motions for amendments, which have been rejected by the majority in committees, are tabled again in plenary to give the requesting group a basis for discussing the basic political opinions of the draft. Finally, the bill is adopted. In Italy and Spain, a final decision may be taken in the committee. In France, the UK, Ireland and Spain, the government may shorten the debate before a final decision is reached (closure, guillotine or kangaroo procedures). The strongest instrument in ‘rationalised parliamentarism’ (as in France) involves the prime minister, who may push through a bill without parliamentary final approval. After having passed through the first chamber, the draft is transmitted for second chamber deliberations. This stage exists in bicameral legislatures and may involve its own set of stages – first reading, second reading etc. The presence of such a second chamber may strengthen the influence of sub-national units at a central level (as in Austria, Switzerland, Germany and Belgium, and to a very limited extent Spain). In decentralised unitary jurisdictions (eg, the UK, Ireland, Italy and the Netherlands), the

Legislation in European Countries  19 second chamber brings into the law-making process a sense of distancing from party politics; it works as a ‘deliberative body’ or a ‘chamber of reflection’. In some constitutional systems, the chamber always participates in all legislative procedures (as in the UK), while in others it simply has the power to suspend/veto first chamber decisions. In all bicameral systems, the second chamber must be included in all legislative procedures to amend the constitution. In some jurisdictions, the competences of the second chamber are very restricted (as in Ireland, Austria, Poland and Spain). The German Federal Council (Bundesrat) may be considered a ‘second chamber’ with strong reservations only, since it is composed of the representatives of the Member States. Its importance in legislation is significant. Without a majority in the Bundestag and the Bundesrat, the government cannot push through an important legislative project. In Italy, a bill is initiated either in the Chamber of Deputies or the Senate. A bill must be approved by both houses. In Belgium, the powers of the Senate are multi-faceted. Legislative procedures are unicameral: the Senate is not involved at all. In other countries, it acts as an asymmetric organ: it has the right to discuss or bring in an amendment. Finally, symmetric participation is required: the Senate has the same powers as the House of Representatives. In Switzerland, the Council of States (Ständerat) as a representation of the cantons has exactly the same rights and duties as the first chamber, the National Council. In the Netherlands, the second chamber, which according to the Constitution is the ‘First Chamber’, is elected by the provincial governments and has asymmetric rights. It does not have the competence to table amendments to bills; it is expected to take a less political stance. The Polish Senate is entitled to veto bills or initiate amendments. As in most asymmetric bicameral systems, the veto may be overridden by the (absolute) majority of the house of deputies. The interventions of the Senate are (currently) rare, since deputies and senators are members of the same party. If in bicameral systems, like Switzerland and Germany (with reservations), there is a lack of agreement between the first and second chambers, a conciliation committee composed of select members of both chambers is appointed. This committee is tasked with proposing a compromise motion that eliminates the remaining differences in their entirety. If this compromise motion is rejected by either of the chambers, the bill is abandoned.

1.3.4.  Enactment and Promulgation: The Post-parliamentary Phase The bill becomes law and takes effect when it is certified and promulgated. This final act of the legislative process is performed by the head of state (the monarch or president) or by the chair of parliament. In France, Greece, Italy and Portugal, this organ has a suspensive veto right. In the event of a veto, the bill is remitted to parliament, which may override the veto (with an enlarged) majority of votes (as in Poland, Slovenia and the Czech Republic). Some countries report that the veto right is only a right on paper (eg, the UK and Norway). In France, Portugal, Italy, Germany and Austria, the president may examine the constitutionality of the draft from a formal and substantive perspective. In Germany, the president may refer the case to the Constitutional Court. After signature, the law is promulgated. In Austria, electronic promulgation has replaced the prior paper publication; in many other countries, both techniques are applicable. In the UK, a ‘good law’ project has been undertaken by the National Archives in cooperation with the Office of Parliamentary Counsel, partnered with the Sir William Dale Centre for Legislative Studies at the University of London. The survey

20  Ulrich Karpen and Helen Xanthaki demonstrated that the free electronic database of legislation in the UK is used much more heavily than was initially thought: 60 per cent of users were non-lawyers. The database and its legislative content offer an opportunity to the law to talk to users directly and without intermediaries. The description of the legislative process would not be complete without highlighting the role of the constitutional court. This has the right to amend statutes ex post if they are in conflict with the constitutional rule (as in Germany). Since the legislative act is annulled ab initio, Slovenia describes the court as a ‘negative law-maker’.

1.3.5. Plebiscites The term ‘direct democracy’ stands for plebiscitary participation of the people in the initiation of drafts, referenda on bills and other votes (namely on important political issues). Plebiscites are complementary to parliamentary decisions; they add to the legitimacy of decisions without weakening representative democracy. Forms of direct democracy at a central level of states in general are not provided for in Europe. However, in Switzerland, many issues are decided upon by the people, so that one may call this jurisdiction a ‘halfdirect’ democracy. The fact that the Swiss people have the right to be consulted, to veto and even to initiate legislation has had a substantial impact on the political institutions of Switzerland as well as on its legislative process and techniques. Parties work together and Switzerland is the classic ‘consensual democracy’. The degree of people’s direct participation in this country has been adopted by other jurisdictions only in a very restricted manner (eg, in Italy, Austria, Germany, Spain and Finland). In all these countries, people’s initiatives are considered an innovative element of law-making. If obligatory or facultative referenda follow, these have mostly a slowing-down effect. Obligatory referenda may be held on important issues. Obligatory votes may be necessary, eg, to transform international treaties or join international associations. Referenda may be required by the constitution to amend or totally replace the constitution (as in Switzerland, Denmark and Ireland). Referenda may also be set by the people or the request of parliament, the president or the government (as in France). Citizens may initiate matters in parliament (as in Bulgaria). Parliament may invoke a referendum, which may be binding or consultative (as in Romania and Estonia). Referenda on legislative texts or specific questions are put to the people by a law in order to give guidance for the legislator (as in Luxembourg). Referenda are held even if the constitution is silent on the issue or there is no tradition of direct democracy (as in the UK in 1975 and 2016 in referenda on joining and leaving the EU). Plebiscitary democracy presents a broad range of effects, of merely consultative and suspensive, confirming, amending and otherwise binding nature.

1.3.6.  Special Categories of Law Constitutional law in almost all European countries takes precedence over other laws. No statutory law or other legal act may contradict the constitution. Amendments of

Legislation in European Countries  21 constitutional law in all European countries – with the exception of the UK – have to pass a significantly more difficult legislative procedure and require qualitative majority – mostly two-thirds – in the respective parliament, and hence are based on consensus. In addition, a positive referendum is necessary in Switzerland, Denmark and Ireland. In some countries, the core principles of the constitution are intangible (eg, Germany, Portugal and Greece). International and supranational treaties are integrated (in monistic systems) or transformed into national law (in dualistic systems) in the form (and procedure) of statutory law. The same is true of transferring sovereign powers (as in Denmark, Sweden and Germany), although a two-thirds majority is required. According to its central political importance, the finance bill (budget) in all European countries is adopted by parliament, generally in the form of a statutory law. However, there are some differences to the general law-making procedure. The government is the only organ which initiates the budget. The ministers of finance occupy an important position. All line ministers cooperate closely. The parliamentary debate on the budget is a general discussion of the government’s activities. The draft budget is dealt with in detail in the budget and specialist committees. Finally, the budget is adopted. In Italy and Germany, the consent of the second chamber is also required.

1.4.  Values and Goals of Laws, Good Legislation and Evaluation 1.4.1.  The Quantity and Quality of Laws: Substantial Legisprudence Up to this point, considerations dealt with the procedural theory of legislation; some reflections on formal issues will follow in section 1.5. In these contexts, the constitution is a binding framework for the organisation, procedure and structure of a bill. Constitutionalism in the nineteenth century and positivist thinking in the twentieth century designed and interpreted constitutions as a mundane and practical document which kept far from ‘bombastic principles’, values, goals of laws, intents, prescriptions for ‘good legislation’ (as in Belgium). The traditional methodology of legislation in Commonwealth jurisdictions – and content-wise also on the continent – was introduced by Thornton.15 It consists of five stages (as in the UK): • • • • •

understanding the proposal; analysing the proposal; designing the law; composing and developing the draft; verifying the draft.

Legisprudence addressed the rather formal aspects of the legislative circle, while issues, such as goal-setting and ex ante as well as ex post evaluation, were – if discussed at all – left to the scholars.

15 H

Xanthaki, Thornton’s Legislative Drafting, 5th edn (London, Butterworths, 2013).

22  Ulrich Karpen and Helen Xanthaki This changed by the mid-twentieth century, when amended and new constitutions were drafted, in particular, but not only in Central and Eastern European states,16 and in the EU Treaties. According to the normative theory of legisprudence, the constitution is understood as a system of values to be realised in guiding principles for policy, goals and instruments of the law, the effects of which could be evaluated by assessment and monitoring. Constitutional texts and juridical doctrines, enriched by scholarship, are interpreted as yardsticks for legislation. These values are ‘the well-being of the people’ (Articles 3(1) and 13 TEU), ‘peace and security’ (Preamble to the TEU, eleventh recital, Articles 3(2) and (5) and 42 ff TEU; ‘human dignity’ (Article 2 TEU), the ‘rule of law’ (Article 2 TEU), and economic and financial goals (Preamble to the TEU, eighth recital; Article 3(4) TEU). The eighth recital must be regarded as substantial and material in many respects. Social policy is an important principle in European treaties and national constitutions (Preamble to the TEU, fifth recital; Article 2 TEU; Article 151 TFEU). Developed as a welfare state in the Nordic states (for example, Sweden), it was highly impacted by Scandinavian legal realism. Culture, education and science are important tenets in the treaties and in national as well as sub-national constitutions (Preamble to the TEU, second recital; Article 3(3) TEU; Article 167 TFEU). All countries protect and promote culture and support access of the people to cultural assets. In recent years, new aims gained interest, like environmental and consumer protection (as in Switzerland and Portugal) (Article 3(3) TEU; Article 169 TFEU), gender equality, children’s rights, solidarity between generations, promotion of young people’s rights (as in Article 22 bis of the Belgian Constitution) etc. This value approach to constitutional texts has never been undisputed, either in general or in detail. It is argued that a structural method is missing to clarify the position, perspective and visibility of legislative goals. Moreover, there is no proper way to balance the elements in a mix of goals and effects (as in Slovenia). However, constitutional courts apply valueloaded norms and scholars encouraged judges to follow these. Normative principles by their integration into constitutional texts do not lose their character as broad and open terms. At the very least, they are valuable for purpose-oriented interpretation. The first interpreter is the law-maker, while the second and final interpreter is the judge if judicial review of laws is required. Details of parliamentary interpretation of value-oriented constitutional texts are to be found in statutory laws. Until four decades ago, not much attention was paid to the instrumental quality of legislation. The economic recession of the 1980s changed this. In most European countries, deregulation became a major topic, resulting in national policies of ‘good governance’, which obviously means ‘good and better regulation/legislation’. The new policy consists of a systematic analysis of draft legislation on regulatory impact and costs for businesses. This was, at first, laid down in a checklist, which had to be worked through when drafting legislation. The result of this check had to be accounted for in the explanatory note of the bill. Later on, evaluation as RIA (ex ante) and monitoring of laws (ex post) was extended to the analysis of impacts on citizens as subjects of laws and the bureaucracy itself.17

16 N Chronowski, T Drinóczi and T Takács (eds), Govermental Systems of Central and Eastern European States (Warsaw, Oficyna-Wolters-Kluwer, 2011). 17 OECD, Cutting Red Tape: National Strategies for Administrative Simplification (Paris, OECD Publishing, 2006); EU, High Level Group on Administrative Burdens, Cutting Red Tape in Europe (Brussels, 2014).

Legislation in European Countries  23 ‘Good legislation’ is a first-ranking element of ‘good governance/government’. The World Bank declares that: We define governance as the tradition and institute by which authority in a country is exercised for the common good. This includes (1) the process by which those in authority are selected, monitored, and replaced, (2) the capacity of the government to effectively manage the resources and implement sound policies, (3) the respect of citizens and the state for the institutions that govern economic and social interaction among them.18

Article 13 TEU reads: ‘The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness, and continuity of its policies and actions.’ It is important for the legislator to successfully follow the principles and guidelines of the constitution, to assess the effects and side-effects of the draft, and to monitor the impact of the law. This practical side of legislation, namely the policy elements of planning and decision-making in legislation and the evaluation of the effectiveness and efficiency of drafts, has been neglected for a long time. It is obvious that legitimation of laws does not come from social, economic or fiscal rationality, but rather from democratic sources. Parliament and the government as legislators need the majority support of the people. At its best, rationality and majority coincide as a solid basis for implementing the law. If this is not the case, the majority vote in politics takes precedence. The failure of legisprudence to take an interest in policy-making as the first step of legislation as well as evaluation is one of the reasons why practitioners and scholars in recent years have become more interested in a broader approach to ‘good government’ and ‘better regulation’: better policy.19 Some scholars and, to a certain extent, also constitutional courts have held that there is a right of the people to a good and effective law (as in Estonia). On the other hand, there is the opinion that all the legislator owes to the public is a law.20 However, it is obvious that all legal acts must, for example, guarantee the protection of fundamental rights or meet the rule of law principles. This says little about what and how the legislator should regulate the matter at stake. The latter is a question of coherent and proper ­legislation: policy and planning, drafting as well as controlling the effects and subsequent results, which is ‘good legislation’. The constitutional duty of the legislator to make not only a law, but also a ‘good law’ requires a multi-criteria evaluation (in a number of countries, but not Austria). A ‘good law’ is a law which is necessary and appropriate to solve the problem in question. The legislator must first make a law which is necessary. There must be a constitutional or legal stipulation for a law. This is not least a question of the quantity of laws. Furthermore, the law-maker must assess (ex ante) the quality of the draft in view of the legal, social and economic impacts of the law when implemented, as well as the availability of the financial resources. The legislator must then retain a good law by monitoring (ex post) and maintaining its quality, including possible amendments. These questions will be dealt with in the following analysis.

18 https://info.worldbank.org/governance/wgi; for more details, see U Karpen, ‘Good Governance’ (2010) 12 European Journal of Law Reform 16. 19 OECD, Better Regulation in Europe (Paris, OECD Publishing, 2010). 20 K Schlaich, Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen, 39 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (Berlin, De Gruyter 1981) 95, 109.

24  Ulrich Karpen and Helen Xanthaki

1.4.2.  Deregulation and Evaluation Much has been written on the quantity of modern legislation. There are, for example, 150,000 legal acts of European secondary and tertiary law,21 and perhaps half or more of EU Member States’ rules now come from Brussels.22 The European acquis communautaire is shaping whole regulatory regimes. In addition, there are about 10,000 judgments of the CJEU and more than 4,000 international agreements. The reasons for this deluge of laws may be the increase of public tasks in welfare and intervention states, technology and juridification in all areas of life. Undoubtedly, excessive legislation is a source of bad law-making: as it gives ground for laws that users are unable to source or understand, it nourishes inadequate implementation. The acceleration of legislative process produces ‘junk laws’ (eg, in Hungary). To avoid the proliferation, complexity and unintelligibility of law, deregulation is needed (as in Sweden, Estonia, Finland, the UK and Germany). There is a saying attributed to Montesquieu: ‘If it is not necessary to make a law, it is necessary to make no law.’ The author never wrote these words, but they certainly encapsulate his ideas.23 The consolidation and codification of existing laws and one-in-one-out standards (as in the UK) for new law-making are instruments used to reduce the body of law. Alongside keeping the body of law ‘small and smart’ and placing emphasis on transparent and accessible legislation, the goals and instruments of law-making should be evaluated against three main criteria: conformity with the constitution and the entire legal system, effectiveness and trust. The law must first stay within the framework of the constitution and fit into the legal system of the jurisdiction. In recent decades, emphasis has been placed on economic or managerial quality criteria (such as efficacy and cost-effectiveness), not least because of budget constraints. A law is effective (eg, in Switzerland) if its impact in practice comes closest to the legislative intent. Laws must be effective, in that they are assumed to be used in practical legal life (eg. in Sweden), and instruments of the law must be efficient, that is, appropriate and proportional. A means is appropriate if and insofar as the objectives of the proposed action cannot sufficiently be achieved by other instruments of government: ‘The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties’ (Article 3(6) TEU). The instruments of the law must be proportionate: ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ (Article 5(4) TEU). Proportionality is cost-effect rationality: the benefits of actions must outweigh the costs. Proportionality tries to reach an optimal balance between means and ends. Finally, effective law-making is built on trust. Trust is an important resource of stability that prevents enacted legislation from being amended frequently. Undoubtedly, the reduction of ‘legalisation’ in all European states is a policy of the current times. Combating the volume of legislation is not least an aim of debureaucratisation. Instruments of New Public Management, devolution, decentralisation, co-regulation and all sorts of participation contribute to this end. 21 P Huber and P Müller, ‘Europa darf kein Eliteprojekt sein’, Frankfurter Allgemeine Zeitung, 2 January 2017. 22 OECD, Regulatory Policy and Governance (Paris, OECD Publishing, 2011) 93. 23 Baron de Montesquieu, De l’ésprit des lois II, Victor Goldschmidt (ed) (Paris, GF Flammarion, 1979) Book XXIX, ch XVI: ‘Lorsque, dans une loi, les exceptions, limitations, modifications, ne sont point nécessaires, il vaut beaucoup mieux n’en point mettre … Il ne faut point faire de changement dans une loi, sans une raison suffisante … Comme les lois inutiles affaiblissent les lois nécessaires celles qu’on peut éluder affaiblissent la législation.’

Legislation in European Countries  25 Quantity and quality, deregulation and ‘better legislation’ are the essence of many EU Member States’ programmes for good governance, cutting ‘red tape’ and drafting guidelines. In the EU, notable milestones are the ‘Governance Initiative’ (2000), the Report of the Mandelkern Group (2001), the first Agreement on Better Law-Making (2003), SMART (2007), the REFIT programme (2012), the Better Regulation Package (2015) and the second Agreement on Better Law-Making (2016). The Portuguese ‘Legislar melhor’ and ‘Simp Legis’ programmes were able to introduce innovating and cutting-edge policies. Belgium is working on a better legislation policy and Estonia has developed an ‘Estonian Regulatory Oversight Model’. Less quantity and more quality are the guidelines for making good law, including RIA,24 and ensuring good legislation, including initiatives for amending laws, and thus starting a new cycle of legislation.25

1.4.3.  Making Good Law: Policy, Goals and Instruments Good legislative drafting is required, which equates to a number of steps and devoting sufficient time to assessing drafts or even initiating consultative activities on issues relating to that particular legislation. Without a fixed policy, clear goals and applicable instruments, it is impossible to evaluate the project, which means assessing the draft and monitoring the law (as in Italy, Belgium, the UK and Poland). The first step in preparing a draft is a policy decision. The experiences in all jurisdictions show that strong political support is needed throughout the whole legislative process. The government must ‘stand behind the project’. Policy is ‘that kind of a standard that sets out a goal to be reached, generally an improvement of some economic, political, or social feature of the community’.26 Policy usually follows pressing needs or free choice. It must start by answering three questions: • Is it necessary to make a law at all? Or are other types of regulations sufficient to solve the problem, like economic incitements, self-regulation, voluntary agreements and informal arrangements? • Why, what and how to draft (as in Sweden and Belgium)? • What are the impacts and consequences of a law (as in Norway, Finland, Lithuania, the Netherlands, the UK, Germany and Switzerland)? A constitutionally based argument for drafting a statutory law is the necessity to protect the fundamental rights of the addressees while limiting their activity. The policy decision usually is based on a problem and is content-oriented – a functional-rational decision. However, strategic intentions may prevail the more controversial and politically essential the problems at stake are. Some Member States’ governments present to parliament and the public a programme of draft projects for the whole legislature (in the Finnish case for a period of four years). However, this is not really a comprehensive political programme, but usually simply endorses the legislative intentions proposed by individual ministers.

24 See

below, section 1.4.3. below, section 1.4.4. 26 R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977) 24. 25 See

26  Ulrich Karpen and Helen Xanthaki In the UK, the Prime Minister must render an account of the general state of the country and of the measures proposed by the government which will thus be made subject to a general debate. He or she will mention bills and propositions for a legislative programme for the coming session via the well-known ‘Queen’s Speech’. The objectives, targets and goals of the draft are formulated by the government and the drafters. There are detailing constitutional yardsticks (like ‘social’ or ‘ecological’ policy perspectives) for the law and the political decision which has been taken. The objectives should be SMART (specific, measurable, achievable, relevant and time-bound). The view is that in the participatory and transparent rule of law state, there is a constitutional duty to give reasons for legislative acts. In some states (eg, Switzerland and Lithuania), it is a key element of the legislative process to report the reasons why legislation is considered necessary. The purpose of this piece of legislation is usually more clearly stated in such texts than in the legislative text itself. Even in countries where a statement of the purpose of the act in one of its provisions is traditionally atypical (like in Sweden), it is becoming somewhat more common. In other law-making systems with a long-standing tradition of an explanatory note preceding the legal text, it is quite common to explain the intention of the law in an opening article, which may read as ‘the purpose of this act is to regulate …’ (as in Germany). An enunciation of the principles provides a firm and intelligible structure for the statute. This helps to make clear the understanding of the legislators, provides guidance to politicians and officials in the executive, assists the courts and finally – and most importantly – explains the law to the public. Instruments for implementing laws are quite diverse. First, they could be imperative, inductive or contracting. ‘Imperative’ means they impose obligatory duties: to do something or not to do something. These are a tool of government by prescription on pain of punishment, civil damages or penalties. ‘Inductive’ means core tools of governance by objectives, such as recommendations, information, benefit stimulations, warnings, rewards and autoregulation (as in the UK). They count on the cooperation, appreciation, persuasion and understanding of the addressees. Finally, there are ‘contractive’ instruments by arrangement, such as contacts, accords and conformity. Soft law and voluntary compliance add to a new participation-oriented implementation of laws. The principles of subsidiarity and proportionality are important guidelines for using the tools (Articles 3(6) and 5(1) and (4) TEU). Legislative tools should reflect the goals, values and priorities in the EU Treaties (as in Belgium). Effective instruments must have regard to the resources and means availability in the country: the affordability and feasibility of legislation are basic quality factors.

1.4.4.  Evaluation of Drafts: RIA (Ex Ante) RIA is a set of activities and procedures carried out to ensure the legal, economic, social and financial quality of drafts before enactment (ex ante) (as in Romania and Slovenia). This policy instrument is advocated by the OECD and is used by the EU and its Member States. In the meantime, the widespread opinion is that carrying out a thorough ex ante evaluation of a draft is part of the law-makers’ duty to make a good law (as in Belgium, Denmark, Finland, France and Germany). Checking the impacts of a new law is important, particularly in view of new technical developments, for example, in relation to ecology, information,

Legislation in European Countries  27 nuclear energy, biotechnology, genetics and the health service. RIA is applied to avoid the ‘gold-plating’ of EU directives in Member States. Switzerland was the first country in Europe to have introduced RIA into the Constitution: ‘The Federal Parliament shall ensure that the efficacy of measures taken by the confederation is evaluated.’ Bulgaria followed with a provision in the Law on Normative Acts. RIA is generally accepted and certainly a valuable tool for improving the quality of lawmaking, but its usefulness should not be overrated because of tremendous methodological and even political constraints, and the fact that RIA has never had to judge whether the policy is fit for purpose. Some critics raise doubts as to whether RIA has led to a significant decrease in the number of statutory and secondary legislation.27 There are quantitative and qualitative methods of RIA.28 The former are cost-benefitanalysis and economic as well as economic and financial prognoses, while the latter are comparative and inter-disciplinary studies. Analyses measure certain ‘dimensions’ of impacts, starting with the costs for (small and medium-sized) businesses, citizens and administrative agencies, and then extend to costs for children, youth and de facto gender equality. In some states, when being initiated in parliament, drafts must not only be accompanied by arguments, but also by a presentation of the RIA results. The consequences of non-compliance with rules of good legislation, including RIA requirements, are different. In Hungary there are no consequences, while in France bills can be rejected by the Conseil d’État for this reason. If (constitutional) courts measure drafts or laws against substantial standards – like effectivity or proportionality – they certainly refer to RIA results as proof of constitutional and good law-making (as in Germany). The organisation and procedures for carrying out RIAs are quite diverse. The Netherlands is the role model for RIA bodies in Europe and beyond. It has been so successful that the question arose as to whether all states are ‘going Dutch’. This appreciation is mostly due to the effectiveness of the Advies College Toetsing Administrative Lasten (ACTAL), which was established in 2011 as an independent and external advisory body that advises the government and Parliament on minimising regulatory burdens. Since 2017, its mandate has been continued by the Adviescollege toetsing regeldruk (ATR). Furthermore, the work of assessing bills is continued by a special legislative reviewing unit within the Ministry of Justice and Security. The results of the review are noted in a memorandum that is submitted to the Council of Ministers. Similar to independent advisory boards to the ATR have been established in Finland, Denmark, Norway, Sweden, the Czech Republic and the UK. These independent bodies collaborate as a network ‘Regulatory Watch Europe’ to improve their own expertise, strengthen the EU approach on Better Regulation, inform other (European) countries of the added value of external and independent scrutiny of RIA, and advise their governments on the quality of the EU’s RIAs. Regulatory Watch Europe’s ‘Joint Statements’ on vital points and upcoming problems of legislation addressed to European institutions as well as ‘Joint Reactions to European Consultation’ are amongst the best offerings on the ‘legislative and legisprudence market’: concise, topical and always up to date. Partly following the trend followed by national legislatures, in 2015 the European Commission



27 Ismayr

(n 2) 15. Flückiger, (Re)faire la loi (Bern, Stämpfli ed, 2019) 479 ff.

28 Alexandre

28  Ulrich Karpen and Helen Xanthaki established the independent Regulatory Scrutiny Board (RSB). In many European countries, councils of state advise governments on better law-making (as in Italy, Belgium, Romania, Luxembourg, France and Slovenia). Parliaments also seek to assess drafts on their own initiative. They use different institutions to do so. First of all, they use the expertise of Parliamentary Research Services. Furthermore, parliamentary advisory councils, governmental reports (as requested), hearings and questions enrich expertise of the houses (as in Sweden and Denmark). In Germany, an Office of Technology and an Office of Sustainable Development have been established. In Belgium, 12 members of the House and 11 senators form the Parliamentary Council of Evaluation of Legislation, although this is not always the case in practice. Alongside parliaments as vessels of democratic representation, the people themselves should contribute to the attainment of the best possible assessment of legislative impacts and the quality of drafts. ‘The institutions shall … give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’ (Article 11(1) TEU). Stakeholders and interest groups may best know the impacts in respective their fields of society’s activities. They participate formally and undertake informal ‘lobbying’ during all phases of the drafting process, predominantly in ministries and then in parliament. At the European level, the High Level Group of Independent Stakeholders on Administrative Burdens in 2014 delivered a remarkable report on reducing bureaucracy in the EU’s and Member States’ administrations. Alongside informal contacts, there are formal Economic and Social Councils (as in Portugal, Luxembourg and the Netherlands). In Switzerland, a process of broad consultations (‘Vernehmlassungsverfahren’) has to be conducted. ‘Concerted Actions’ and other forms of almost ‘neo-corporatistic’ structures and procedures are characteristic of ‘concordance democracies’ (as in Denmark, Finland, Portugal, Slovenia and Sweden). Since the drafts have to be published (as in Germany and the Netherlands), the media participate in their analysis. Where such a broad involvement of stakeholders and the public is recommended and used in the law-making process, this no longer or not only highlights an improvement in representative democracy but is also inspired by a desire to strengthen participatory or deliberative democracy. In jurisdictions with constitutional courts, there may be access to assessing the bill ex ante. In Portugal, instead of vetoing a bill directly, the President of the Republic can demand a court decision. The court may declare the bill unconstitutional in part or in its entirety. In Romania (under section 142 of the Constitution), the Constitutional Court may adjudicate the constitutionality of a law before promulgation thereof by notifying the President or other state organs.

1.4.5.  Evaluation of Law: Monitoring and Ensuring the Quality of Laws (Ex Post) There is a law-maker’s constitutional duty to monitor the effectiveness of a law, to revise it (if necessary) and to maintain its quality. Monitoring laws looks at the intended consequences and the unintended impacts of positive legal action. Although of great interest to the legislature as well as the executive bodies (and performed within the latter’s domain), monitoring is sporadic in many countries. Evaluation of legislation instead takes the form of impact

Legislation in European Countries  29 assessment of new legislation rather than monitoring and amending existing law (Romania, Lithuania and Switzerland). The main goals of ex post evaluation are managing the flow of new norms in the context of the existing law, the codification and simplification of the stock of law, and the harmonisation of national law regarding EU legislation (as in France). Indeed, ex post monitoring may be looked at as the culmination of the regulation feedback loop (as in Slovenia). The task of monitoring consists of looking into the case law relating to a particular piece of legislation, as well as following the administrative practice, the academic discussion and public debate (as in Denmark and Norway). Usually, monitoring is carried out by ministries. In France, there are administrative oversight bodies in the general inspectorates. Often groups of experts or individuals or ad hoc working groups are involved (as in Lithuania). The reports of the audit courts are an invaluable source of monitoring the effects of a law (as in Germany). Parliament has diverse means to monitor the efficacy of its products, to tackle uncertainties, to collect information on the implementation of the law and to improve prognostic abilities. It may add express provisions to the law demanding reports of the government on a particular date after the implementation of the law. It may write ‘sunset clauses’ (‘guillotine clauses’) prescribing that the law will expire at a given date if it is not renewed in its existing form or as amended. Some parliaments make use of ‘policy experiments’, in that they legislate on a given matter – sometimes in addition to the alreadyexisting regulation – and limit the validity of the new legislation so as to evaluate its effects. In practice, parliamentary committees are involved in monitoring the quality of legislation (as in Norway). This is considered a necessity to allow for a more independent evaluation and in particular to strengthen the role of parliament (as in France). A strong means of monitoring the quality of laws is through judicial review. This is performed by national (constitutional or supreme) courts, the CJEU and the ECtHR (as in Germany, Belgium, Italy, Austria, Slovenia and Luxembourg), as opposed to jurisdictions that practise a ‘diffuse’ judicial review of norms. A Swedish court does not need to apply a provision which it finds to be contrary to the Constitution. The Swiss Federal Supreme Court may exercise very limited constitutional review: it may not declare a statutory law as void. The country wanted to prevent a situation where a court declares unconstitutional what the people considered to be in keeping with the constitution. Therefore, only secondary legislation and cantonal law may be brought before the Supreme Court. The UK Supreme Court hears cases of the greatest public or constitutional importance that affect the whole population (for example, the prorogation of Parliament).29 Procedures before a constitutional or supreme court may concern the control of abstract or concrete standards and even individual constitutional complaints (as in Germany). The main ­problem of constitutional review – as observed in all countries with access to c­ onstitutional review – is where to draw the often fine line between jurisdiction and policy. Furthermore, it is essential to secure the political independence of judges and to avoid the risk of having judges acting as replacement legislators. Given the broad and open substantive provisions and general principles of national constitutions and European primary law, some of them have become all-powerful tools in the hands of judges. This is true, for example, of ‘proportionality’.

29 R

(Miller) v The Prime Minister [2019] UKSC 41.

30  Ulrich Karpen and Helen Xanthaki Legal systems can be likened to public gardens. They work best when they are properly kept and maintained, and this allows them to be easily used (as in Italy). A proper ‘law-making housekeeping’ allows for legal certainty, creative compliance and effective implementation (as in Austria). This includes, of course, sweeping out anachronistic and unnecessary legislation and bringing in amendments. In so doing, the legislator closes the cycle of one piece of legislation and opens a new one.

1.5.  Formal Legisprudence: Structure, Language and Techniques of Law-Drafting The analysis of formal legisprudence in European jurisdictions has shown that although drafting legislation is very much a matter of national intricacies, within Europe drafting styles are increasingly converging. Most jurisdictions introduce rules of legislative drafting that bind the professional drafters.30 Austria,31 Belgium,32 Bulgaria,33 Croatia,34 the Czech Republic,35 Cyprus,36 Denmark,37 Estonia,38 Finland,39 France,40 Germany,41 Greece,42 Italy,43 Latvia,44 Luxembourg,45 the 30 For a summary of the national drafting conventions discussed in this chapter, see H Xanthaki and C Stefanou, ‘Drafting for Transposition of EU Criminal Laws: The EU Perspective’ [2003] European Current Law Review xi. 31 See Legistische Richtlinien, 1990, https://www.bundeskanzleramt.gv.at/agenda/verfassung/legistik/e-recht-legistische-richtlinien.html. 32 See Conseil d’Etat, ‘Principes de technique legislative – Guide de rédaction des textes législatifs et réglementaires’, www.raadvst-consetat.be/?page=technique_legislative&lang=fr, which replaces the ‘Traité de légistique formelle’, Circular of the Prime Minister of 23 April 1982. 33 See Law on Normative Acts, Promulgated, State Gazette No 27/3.04.1973, amended and supplemented, SG No 65/21.07.1995, supplemented, SG No 55/17.06.2003, effective 18 December 2003, amended and supplemented, SG No 46/12.06.2007, SG No 34/3.05.2016, effective as of 4 November 2016, https://www.legislationline.org/ documents/id/22269. 34 See Croatian Guidelines for Legislative Drafting, June 2015. 35 See Resolution of the Government no 188, 19 March 1998, https://www.vlada.cz/cz/ppov/lrv/dokumenty/ legislativni-pravidla-vlady-91209. 36 See Legal Service of the Republic, ‘Guidelines for the Drafting of National and Transposition Legislation’, March 2017. 37 See Zahle, Dansk forfatningsret I (2001) 263 an Zahle (4). 38 See Regulation 279, Regulatory Rules on Draft Normative Acts, RT 1, 1999, 73, 695; 2004, 10, 61. 39 See Bill Drafting Instructions (Helsinki, Ministry of Justice Publications, 2006), https://oikeusministerio.fi/en/ bill-drafting-instructions. 40 See ‘Circulaire relative à la codification des textes législatives et réglementaires’, Circular of the Prime Minister of 30 May 1996, JORF n°129 du 5 juin 1996, 8263, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte= JORF TEXT000000742705&categorieLien=id; see also ‘Circulaire relative aux règles d’ élaboration, de signature et de publication des textes au Journal Officiel’, Circular of the Prime Minister of 2 January 1993 and the newer 1997 version: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000380718&categorieLien=id. 41 See Handbuch der Rechtsförmlichkeit, 1991 and 2008 (revised), https://www.bmjv.de/DE/Themen/RechtssetzungBuerokratieabbau/HDR/HDR_node.html. 42 Manual for the Procedures of Inter-ministerial Coordination of the Greek Government, June 2018, www.ggk. gov.gr. 43 See N Jotti and Camera dei Deputati, ‘Formulazione tecnica dei testi legislative’ [1986] 109 Il Foro Italiano 139 and 147; see also ‘Regole e suggerimenti per la redazione dei testi normativi’, 1992 and 2007, http://web.consiglioveneto.it/qualita/manuale%20drafting.pdf; ‘Istruttoria legislativa nelle commissioni’, 1997, https://www.senato. it/1057?testo_generico=28&voce_sommario=62. 44 See ‘Normatīvo aktu projektu izstrādes rokasgrāmata’, https://tai.mk.gov.lv/book/1/chapter/178. 45 See M Besch, Traité de légistique formelle (Luxembourg, Service Central de Législation, 2007).

Legislation in European Countries  31 Netherlands,46 Poland,47 Portugal,48 Romania,49 Slovenia, Spain50 and the UK51 have introduced texts that include some guidelines or standards of quality for national drafters. For the rest of the jurisdictions, drafting principles derive from their legislative traditions. These guidelines and principles are applicable to all national texts, irrespective of their role as implementation documents of a purely national policy or as transposition documents. Clarity, simplicity, precision, accuracy and plain language are common standards of good-quality legislation in both the common law and civil law drafting styles.52 Consideration of the group of persons who are the main users of the legislative texts,53 consideration of any interpretative problems arising from the text,54 the need for consistency with existing legislation, avoidance of irrelevant provisions and the use of uniform terminology are all rules of drafting that are common in the legislative guidelines of European jurisdictions.55 Legislative action as a means of regulation must be employed only if it is an essential and effective means of ending legal uncertainty. This is expressly the case in Belgium, France, Germany and Portugal.56 However, even elsewhere, this principle would apply as it is ensuing to the principle of proportionality: only proportional measures are necessary and efficient means of fulfilling the aim of the law and, consequently, only proportional measures may fulfil the imposed national tests of necessity and efficiency. The principle of legality is expressly introduced in Germany and Portugal.57 In Belgium, it is also expressly recognised by the courts. The principle has the additional meaning that 46 See ‘Aanwijzingen voor de regelgeving’, 1992, https://www.kcwj.nl/kennisbank/integraal-afwegingskaderbeleid-en-regelgeving/verplichte-kwaliteitseisen/aanwijzingen-1; see also C Borman (ed), Aanwijzingen vor de Regelgeving (Zwolle, WEJ Tjeenk Willink, 1993). 47 See Regulamin Pracy Rady Ministrów, Regulamin RM, Law on Normative Acts, Promulgated, State Gazette No 27/3.04.1973, amended and supplemented, SG No 65/21.07.1995, supplemented, SG No 55/17.06.2003, effective 18 December 2003, amended and supplemented, SG No 46/12.06.2007, SG No 34/3.05.2016, effective 4 November 2016. 48 See Assemblea da Republica, ‘Regras de Legistica a Observar na Elaboração de Actos Normativos da Assembleia da República’, http://ialorg.wpengine.com/wp-content/uploads/2018/02/RegrasLegistica-AR.pdf; see also Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects for normative acts. 49 See Law No 24 of 27 March 2000 on the Rules of Legislative Technique for the Preparation of Normative Acts (LEGE nr 24 din 27 martie 2000 privind normele de tehnică legislativă pentru elaborarea actelor normative), www. cdep.ro/pls/legis/legis_pck.htp_act_text?idt=22562. 50 See Directives on the form and structure for the schemes of projects of laws, 1991; see also Guidelines for regulatory technique, approved by the Agreement of the Council of Ministers, of 22 July 2005; see also Norms on the consultation regime of the Congreso de los Diputados y del Senado, 1989. 51 See Consolidation of Enactment (Procedure) Act 1949; see also Statutory Instruments Act 1946; Interpretation Act 1978. 52 See GC Thornton, Legislative Drafting (London, Butterworths, 1996) 52–54; see also R Pagano, Introduzione alla legistica: l’arte di preparare le leggi (Milan, Giuffrè Editore, 1999) 26–30. 53 See M Ainis, La legge oscura (Bari, Laterza, 1997) 103. 54 See V Fronsini, Lezioni di teoria dell’ interpretazione (Rome, Bulsoni, 1993) 298; see also WA Leitch, ‘The Interpretation Act: Ten Years Later’ (1958) 16 Northern Ireland Legal Quarterly 215, 236–37. 55 See Pagano (n 52) 37–39. 56 See art 2.1.1.1 of the French Circular of 2 January 1993 on the rules for the elaboration, signature and publication of texts in the Official Journal and on the coming into force of the particular procedures of the Prime Minster; art 40 of the German Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976, as modified; paras 26–28 of the German Manual of Judicial Formalities, 1991; art.1a of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts. 57 See paras 31–32 of the German Manual of Judicial Formalities,1991; art 4 of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts.

32  Ulrich Karpen and Helen Xanthaki some topics – those that are defined by the constitution as regulated ‘by law’ – have to be (for their essential part) regulated by an act of parliament. Elsewhere in the other Member States, the principle has an effect on the hierarchy of sources of law, which invariably place EU and the constitution or constitutional laws above laws or executive decrees. Drafting for a group of users is reflected in the German appreciation that legislative texts are mainly used by laypersons whose lack of legal knowledge does not allow for complicated, specialised texts full of legal terminology,58 as well as in the German requirement for the clear determination of the new duties and rights introduced by the legislative text.59 An expression of this rule can be found in the common rule for plain language and unambiguity. Clarity of legislation is a principle expressly introduced in Austria, Belgium, France, Germany, the Netherlands, Portugal, Spain and the UK.60 Unambiguity is required from Belgian, Dutch, German, Italian, Portuguese, Spanish and UK drafters.61 Simplicity is a rule of drafting in Austria, Belgium, Germany, Latvia, the Netherlands, Portugal and Spain.62 In the UK, simplicity is also pursued, but not at the expense of certainty.63 Plain language, as an expression of the rule for the consideration of the language accessible by laypersons who will be the main users of the particular legislative text, has been expressly introduced in the Netherlands, Portugal and the UK.64 The requirement of the use of the same term when referring to the same concept is an expression of the principle of unambiguity and has been expressly introduced in Austria, 58 See art 35 of the German Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976 as modified; para 34 of the German Manual of Judicial Formalities, 1991. 59 See para 59 of the German Manual of Judicial Formalities, 1991. 60 See art 7 of the Austrian Legistische Richtlinien, 1990; art 1 of the Belgian ‘Circulaire de Premier Ministre’, 23 April 1982 and recently the Council of State’s drafting guidelines on clarity (para 3) and simplicity (para 3.3); art 35 of the German Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976, as modified; paras 33–39 of the German Manual of Judicial Formalities, 1991; the Italian ‘Regole e suggerimenti per la ­redazione dei testi nomativi’, 1991; arts 2.6 and 3.3 of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992; art 7c of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts; Spanish Guidelines for regulatory technique, approved by the Agreement of the Council of Ministers, of 22 July 2005. See also L Neville-Rolfe, ‘Good Regulation: Weighing up the Risks’ in A Kellermann, G Ciavarini-Azzi, S Jacobs and R Deighton-Smith, Improving the Quality of Legislation in Europe (The Hague, Kluwer Law, 1998) 245–49; Thornton (n 52) 53–54. 61 See art 1 of the Belgian ‘Circulaire de Premier Ministre’, 23 April 1982 and recently para 3 of the C ­ ouncil of State’s drafting guidelines; art 35 of the German Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976, as modified; para 37 of the German Manual of Judicial Formalities, 1991; art 2 of the Italian ‘Regole e suggerimenti per la redazione dei testi nomativi’, 1991; arts 2.6 and 3.3 of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992; art 7c of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts; Spanish Guidelines for regulatory technique, approved by the Agreement of the Council of Ministers, of 22 July 2005. For an analysis of the ambiguity in British law see M Black, The Labyrinth of Language (London, Pelican Press, 1972) 107. 62 See art 1 of the Austrian Legistische Richtlinien, 1990; art 1 of the Belgian ‘Circulaire de Premier Ministre’, 23 April 1982; art 35 of the German Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976, as modified; para 37 of the German Manual of Judicial Formalities, 1991; art 2.1 of the Latvian Cabinet of Ministers Regulations on Drafting of the Normative Acts of 3 February 2009 No 108; art 2.6 of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992; art 7c of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts; Spanish Guidelines on the form and structure of projects of laws, 1991, approved by the Decision of the Council of Ministers of 18 October 1991, OJ 18 November 1991, no 276, disposition 27774, 37235–37. 63 See ‘The Preparation of Legislation – Report of a Committee Appointed by the Lord President of the Council’ (Renton Report) of May 1975, ch XI, art 14. 64 See art 3.3. of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992; art 7a of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts. For the UK, see M Faulk and IM Mehler, The Elements of Legal Writing (London, Macmillan, 1994).

Legislation in European Countries  33 Belgium, Italy, Latvia, the Netherlands and Portugal.65 On the basis of the same principle of unambiguity, unnecessary abbreviations are to be avoided in Germany Italy and the Netherlands.66 As an expression of the need for clarity and unambiguity, pointless repetition of existing provisions, which is often followed by the use of different terms to refer to the same concept, is to be avoided only under the Austrian, Italian, Latvian and Dutch guidelines.67 Long sentences must be avoided in Austria, Belgium, Germany, Italy, and the Netherlands.68 It is noteworthy that the UK does not introduce a general rule against long sentences; nevertheless, a similar result is achieved through restrictions on the use of subordinate sentences (especially before the subject of the phrase or between the subject and the verb of the sentence)69 and against long sentences which are not split into paragraphs.70 Moreover, imprecise references to other legal texts are expressly prohibited in the Austrian, Belgian, German, Italian, Dutch and Portuguese guidelines.71 In parallel, there are still EU standards to be observed, and these offer useful guidance to transposition drafters. From the point of view of composition, the EU has a rich set of rules. In their purity, these drafting rules bind the EU and its institutions. However, as early as 1998 in the Commission’s Better Lawmaking Report 1998: A Shared Responsibility,72 the role of Member States in the process of improving the quality of EU legislation was fully established. The correct transposition of EU directives was one of the eight main guidelines for action introduced by the Report.73 Transposition legislation must be clear,74 unambiguous and simple. Clarity includes the use of plain language and the avoidance of too many cross-references, and political statements that are not legislative in character.75 Unambiguity covers the use of the same term throughout the text, a lack of unnecessary abbreviations and 65 See art 31 of the Austrian Legistische Richtlinien, 1990; art 3a of the Belgian ‘Circulaire de Premier Ministre’, 23 April 1982 and recently para 2 of the Council of State’s drafting guidelines; art 16a of the Italian ‘Formulazione tecnica dei testi legislativi’, 1986, GU No 123 of 29 March 1986, Ordinary Supplement, No 40; art 16 of the Italian ‘Regole e suggerimenti per la redazione dei testi nomativi’, 1991; art 2.3 of the Latvian Cabinet of Ministers Regulations on Drafting of the Normative Acts of 3 February 2009, No 108; art 3.7 of the Dutch ‘Aanwijzingen Voor de Regelgeving’, 1992; art 7a of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts. 66 See art 34 of the Gemeinsame Geschäftsordnung der Bundesministerien, 15 October 1976, as modified; art 9 of the Italian ‘Formulazione tecnica dei testi legislativi’, 1986, GU No 123 of 29 March 1986, Ordinary Supplement, No 40; art 3.9 of the Dutch ‘Aanwijzingen Voor de Regelgeving’, 1992. 67 See art 3 of the Austrian Legistische Richtlinien, 1990; art 19 of the Italian ‘Regole e suggerimenti per la redazione dei testi nomativi’, 1991; arts 3.2 and 3.3 of the of the Latvian Cabinet of Ministers Regulations on Drafting of the Normative Acts of 3 February 2009, No 108; art 5.2 of the Dutch ‘Aanwijzingen Voor de Regelgeving’, 1992. 68 See art 18 of the Austrian Legistische Richtlinien, 1990; para 3.10 of the Belgian Council of State’s drafting guidelines; para 51 of the German Manual of Judicial Formalities, 1991; art 1 of the Italian ‘Regole e suggerimenti per la redazione dei testi nomativi’, 1991; art 3.1 of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992. 69 See Renton Report (n 63) art 16. 70 See ibid art 8. 71 See art 56 of the Austrian Legistische Richtlinien, 1990; para 73 of the Belgian Council of State’s drafting guidelines, para 73; paras 97–109 of the German Manual of Judicial Formalities, 1991; art 55 of the Italian ‘Regole e suggerimenti per la redazione dei testi nomativi’, 1991; art 3.28 of the Dutch ‘Aanwijzingen voor de Regelgeving’, 1992; art 6c of the Portuguese Deliberation of the Council of Ministers of 8 February 1989 on the approval of the general principles for the elaboration of projects of normative acts. 72 See COM (1998) 715 final. 73 See Bulletin EU 5-1998, point 1.8.3. 74 When it comes to transposition, individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and duties and, where appropriate, to rely on them before the national courts: see Case C-49/00 Commission of the European Communities v Italian Republic [2001] ECR I-8575. 75 See Opinion of the Economic and Social Committee of 5 July 1995 on plain language [1995] OJ C256/8.

34  Ulrich Karpen and Helen Xanthaki a lack of pointless repetition of existing provisions. Simplicity incorporates a lack of jargon, long sentences and imprecise references to other legal texts.76 In principle, national transposition laws must be capable of leading to the effectiveness of national regulation and, as a member of the implementing collective,77 to the effectiveness of EU regulation. Finally, gender neutrality and its successor gender inclusivity are gaining ground as tools of clarity.78 Gender-neutral language (GNL) refers to language that includes all sexes and treats women and men equally. Gender-inclusive language (GIL) takes the argument further; it is prevalent in the UK, but its seeds are evident in Germany with the use of the asterisk at the ending of words, in France with support to the third plural, and in Spain and in Italy in a number of innovations that have been trialled at the local level.

1.6.  Teaching Legislation: How to Teach and Learn Professional Legislation Most European jurisdictions are beginning to realise that legislative drafting is a separate discipline of law, which requires training alongside mentoring on the job. However, there remains a level of diversity between common and civil law jurisdictions. In common law jurisdictions, formal legisprudence tends to be taught on dedicated academic or professional courses. The oldest and still leading academic programme teaching formal legisprudence is the LLM in Drafting Legislation, Regulation and Policy at the Sir William Dale Centre of the Institute of Advanced Legal Studies (University of London). Professional courses at the Sir William Dale Centre and the King’s Inns in Dublin are dedicated to this issue. But, of course, most universities offer elements of formal legisprudence in the form of courses on statutory interpretation, mostly at an undergraduate level. In civil law jurisdictions, the emphasis is on mentoring on the job, whereas the distinction between experts in the substantive field of law and legisprudence is quite blurred. Most universities offer courses that study legislation. However, when it comes to drafting legislation, there is a general belief that if one has studied law, then one can almost automatically draft legislation.79 Although the impression given here seems rather disheartening, the future for legislative studies is anything but. Legislation is at the forefront of the regulatory debate and, with the EU in a leading role, there is increasing focus on formal legisprudence and legislative quality.

76 See Resolution of the European Parliament of 4 July 1996 on the report of independent experts on simplification of Community legislation and administrative provisions, COM(95)288 fin; see also A-4 0201/96 [1996] OJ C211/23. 77 See LJ O’Toole Jr, ‘Multi-organisational Policy Implementation: Some Limitations and Possibilities for Rational Choice Contributions’ in FW Scharpf (ed), Games in Hierarchy and Networks: Analytical and Empirical Approaches to the Study of Governance Institutions (Frankfurt am Main/Boulder, CO, Campus Verlag/Westview Press, 2003) 27. 78 See H Xanthaki, ‘Gender-Inclusive Legislative Drafting in English: A Matter of Clarity’ in Alexandre Flückiger (ed), La rédaction administrative et législative inclusive, la francophonie entre impulsions et résistances (Bern, 2019, Stämpfli Verlag AG) 57. 79 C Stefanou, ‘Comparative Legislative Drafting: Comparing across Legal Systems’ (2016) 2 European Journal of Law Reform 123.

2 Legislation in Austria KARL IRRESBERGER AND CHRISTOPH KONRATH

Context Austria has a legal system of the continental type showing common traces, in particular, of other Central European law systems. Some features of the Constitution – such as the emphasis on parliamentary legislation, a strict hierarchy of norms, the technicality of laws, the strong position of the Constitutional Court, the prevalence of positivism in public law and the existence of a federal system – exercise a formative influence on legislation. Particularities may be found in the understanding of the principle of legality in respect of legislation, constitutional requirements regarding referencing and a specific idea of consolidation and codification.

2.1.  Legislation and Regulation From a comparative perspective, the forms and the style of legislation stand out in Austria. This is because of a very flexible constitution on the one hand and a tradition of confronting constitutional law from an administrative perspective on the other hand.1 The flexible Constitution challenges the role of constitutional law as a stable framework for legislation, and the administrative perspective sets the tone for highly detailed legal regulations on every level. Both are elements of a strictly hierarchical view of the legal system referred to as ‘Stufenbaulehre’, a concept that reflects both process and coercion as essential elements of the legal system. It was developed to reconcile the (older) ‘Rechtsstaat’ with the emerging parliamentary democracy in the 1920s and provides for an analytical perspective on law creation and destruction on all levels of state organisation. In that way, it does not draw substantial distinctions between ‘legislation’ or law creation on parliamentary or administrative or court levels.2

1 cf H Eberhard and K Lachmayer, ‘Rule of Law in Austria’ in M Koetter and GF Schuppert, Understandings of the Rule of Law in Various Legal Orders of the World (Berlin, 2010). 2 See, for example, T Öhlinger, Der Stufenbau der Rechtsordnung (Vienna, Manz, 1975; E Wiederin, ‘Die Stufenbaulehre Adolf Julius Merkl’ in S Griller and H Rill (eds), Rechtstheorie (Vienna, Springer, 2011) 81.

36  Karl Irresberger and Christoph Konrath

2.1.1.  The Centrality of Parliamentary Legislation Still, Parliament has the central role in this system, as the principle of legality enshrined in Article 18 of the Bundes-Verfassungsgesetz (Federal Constitutional Law, henceforth B-VG) demands that all state acts must comply with the law and that the entire public administration may only act based on an explicit legal authorisation. The legislative power of the Federation is exercised by the National Council (Nationalrat) jointly with the Federal Council (Bundesrat) (Article 24 B-VG), in which the National Council plays the dominant part.

2.1.2.  The Impact of Constitutional Review The principle of legality must be considered along with the specific role and the high esteem in which the Constitutional Court is held. Both influence legislative culture substantially in Austria. The Court was originally conceived as an umpire between federal legislation and the legislation of the Länder. But the Court could also examine a parliamentary act ex officio when it had to apply such an act in another proceeding. It was this power of the Court and a strict legalism that triggered the development of constitutional review according to the Austrian model.3 In particular, the Constitutional Court has powers to repeal regulations insofar as these are not based in parliamentary law, and even to repeal constitutional provisions that are not in line with fundamental principles of the Federal Constitution. This power is exercised, in most cases, not by repealing a whole act of legislation, but by deleting individual provisions or pieces (eg, single terms) of the legal text. In conjunction with the principle of legality, it boosts the creation of relatively precise and complex parliamentary laws. This culminates in the Court’s formula that legal provisions must be ‘sufficiently clear and detailed’.4 On the other hand, laws that are too inflexible may infringe rights guaranteed by the Constitution. Also, a large number of constitutional provisions have sought to immunise specific political decisions made by Parliament against repeal by the Constitutional Court.

2.1.3.  Primary Legislation We find two levels of constitutional law on top of the Stufenbau: the basic principles and ‘ordinary’ constitutional law. The basic principles are the democratic principle, the republican principle, the federal principle and the ‘Rechtsstaat’ principle. They are not expressively laid down in the Constitution, but they can be derived from the overall context. Their abolition and fundamental amendment or a fundamental change of their interrelationship is considered a total revision of the Federal Constitution and requires a two-thirds majority

3 cf T Öhlinger, ‘The Genesis of the Austrian Model of Constitutional Review’ (2003) 16 Ratio Juris 206. 4 cf in particular Official Collection of the Judgments of the Austrian Constitutional Court (VfSlg) 10.296/1984 building upon a tradition starting with VfSlg 176/1923.

Legislation in Austria  37 in the National Council5 as well as a referendum of the Austrian people.6 ‘Ordinary’ constitutional law requires the denotation of the specific act or provision as constitutional law and a two-thirds majority in the National Council.7 There are no other requirements and there is no imperative to have only one constitutional act. In fact, there are various constitutional acts and a high number of so-called ‘constitutional provisions’ in simple laws. There used to be more than 1,300 such provisions until 2008, when a huge project of ‘clearing up the Constitution’ (‘Verfassungsbereinigung’) was concluded.8 But a lot of them still remain and are necessary, eg, to circumvent the limitations of the division of legislative and executive powers between the Federation and the Länder (federal entities).9 Such practices are retained as a prime source of bargaining powers among governing party coalitions and between government and opposition.10 Ordinary or ‘simple’ laws come next in the Stufenbau order. Their enactment requires a simple majority in the National Council and (in most cases) the limited involvement of the Federal Council. A special type of ordinary laws is the so-called ‘Grundsatzgesetz’ or fundamental law. In relation to Article 12 B-VG (ie, designated matters of social welfare, health and electricity) legislation regarding principles is the business of the Federation, while the issue of implementing laws and execution is the business of the provinces. These laws must be expressly specified as such and are enacted by a simple majority. In this context, it is important to note that relations between the Federation and the Länder as well among the Länder may also be settled by the executive governments, which may conclude agreements according to Article 15a B-VG. Such agreements are governed by the principles of international law, which means that the National Council and the diets (legislative assemblies of the Länder) can only consent or refuse to consent, but have no powers to amend them. If such an agreement is concluded, further legislation that is germane to the topic must comply.

2.1.4.  Secondary Legislation Secondary legislation is understood as any act issued by an administrative authority and concerning an indefinite number of persons. The notion of administrative authority is vast, comprising any body vested with public powers (imperium) but not part of the legislature or the judiciary. The concept of secondary legislation covers acts that cause legal effects outside the administration (as opposed to internal organisational and procedural rules and to directions by superiors) and are at the same time of a general nature, ie, not addressed to individual persons concerned. One consequence of this concept is that traffic signs and

5 See art 44 para 3 B-VG. According to art 44 para 2 B-VG, a two-thirds majority in the Federal Council is required when the amendment will restrict the competence of the provinces in terms of legislation or execution. In this case, the Federal Council can bring down the National Council’s enactment if the required majority cannot be found (for other cases, see section 1.2.2.2 below). 6 Article 44 para 3 B-VG So far, only one referendum was held in connection with Austria’s accession to the EU in 1994. 7 Article 44 para 1 B-VG. See n 5 above on the involvement of the Federal Council. 8 BGBl (Federal Law Gazette) I No 2/2008. 9 cf E Wiederin, ‘Die Kompetenzverteilung hinter der Kompetenzverteilung’ (2011) 66 Zeitschrift für öffentliches Recht 215. 10 cf C Konrath, ‘Parlamentarische Opposition in Österreich’ (2017) 48 Zeitschrift für Parlamentsfragen 560.

38  Karl Irresberger and Christoph Konrath floor markings (expressing duties of traffic participants) are regarded as the publication of ordinances, ie, of secondary legislation. Another consequence is that rural planning instruments like zoning plans are regarded as ordinances as well, given that their legal effects are not limited to the landowners at a certain point in time. The distinction between secondary legislation and other executive acts is important in various respects, namely as regards the rules applying to the creation and judicial control of such acts. For (the creation of) legislation, publication is indispensable.11 Powers to create secondary legislation are guaranteed by the Federal Constitution to the municipalities in particular. They can even be assigned, to a limited extent, to bodies created under private law, provided that such bodies are subject to sufficient control by the government. The constitutional requirement (Article 18 B-VG) that any executive act (including secondary legislation) must be based on a statutory law allows for hardly any exceptions.12 Moreover, the Constitutional Court understands it to mean that the law has to limit the powers conferred upon the executive by determining the preconditions and the substance of executive acts. The necessary degree of predetermination must be adequate to the matter at hand,13 being especially high in penal law with a view to enabling persons to assess which behaviour is unlawful.

2.1.5.  Länder Legislation The nine Länder have their own constitutions, but are tied to numerous restrictions imposed by the Federal Constitution. The distribution of competences between the Federation and the Länder essentially dates back to 192514 and is complicated, but is not suited to presentday needs, while the major areas of law are mostly (but hardly ever completely) assigned to the competence of the Federation (eg, civil and penal law and jurisdiction, taxation competences, public security, public health and social security). Their system of legislation does not deviate considerably from that of the Federation.

2.2.  Legislative Procedures As legislation is highly centralised at the federal level, we focus on procedures in the National Council and in the Federal Ministries. Procedures at the Länder level follow the federal model with the proviso that all Länder have unicameral legislatures.15 11 Interestingly, the Constitutional Court treats general internal instructions of the administration as secondary legislation insofar as they contain binding orders to subordinates in respect of the rights and obligations of persons and repeals them only if they are not published. 12 There is the only example of preliminary emergency ordinances according to art 18(3) B-VG in the event that the National Council is incapable of reacting by law. An EU directive, even if sufficiently determining execution, cannot substitute a statutory law as a basis for secondary legislation (VfSlg 15.354/1998). 13 See, eg, VfSlg 13.336/1992, 13.785/1994, 17.348/2004, 20.039/2016. 14 Laid down chiefly in arts 10–15 and 21 B-VG. 15 cf P Abbrederis and E Pürgy, ‘Gesetzgebung der Länder’ in E Pürgy (ed), Das Recht der Länder, vol I, Landesverfassungsrecht und Organisationsrecht (Vienna, Sramek, 2012) 231, 257.

Legislation in Austria  39

2.2.1.  Preparation and Consultation Most parliamentary laws and central regulations start life as ministerial drafts. In the federal ministries, drafting is usually the task of experts responsible for comparably small areas of law. When the draft is finished, it normally undergoes a consultation procedure or ‘Begutachtungsverfahren’.16 Austria is therefore an example of traditional modes of consultation that commence only at a very late stage of the policy cycle. There is no practice of public consultation on Green Papers, White Papers and the like. Consultation procedures involve a number of public institutions and associations of stakeholders. This procedure, which evolved in the era following the Second World War, has been opened gradually and has been open for general public participation since 2017 at least in the case of parliamentary laws. But it has never been regulated by law, which entails that, as a general rule, there are neither formal obligations to consult nor binding time limits on the consultation exercise.17 However, to some extent, consultation is mandatory. The so-called ‘Consultation Mechanism’18 ensures that the Länder and the two big associations of cities and municipalities must be consulted in certain cases that will result in costs on their side. Also, some professional corporations established under public law must be consulted when the interests of their members are at stake. Ministerial drafts undergoing consultations are composed of the legal act envisaged and the accompanying material. The latter will comprise the following: 1.

A ‘pre-page’ listing important features (problem and solution, impact analysis summary, deviations from the ordinary procedural requirements in view of the content, relation to European Union law) and b) notes on outcome-oriented impact assessment (see section 1.5 below) with special emphasis on financial impacts. 2. An explanatory memorandum that is divided into a ‘General Part’ (also mentioning, in the case of a federal law, on which competence of the federation the proposed law is based) and a ‘Special Part’ commenting upon the provisions of the proposed act one by one. 3. (At least in the case of an amendment to federal primary law) a synopsis of the legal act concerned in its effective and its prospective versions, as far as is covered by the amendment.

2.2.2.  Parliamentary Procedure 2.2.2.1.  Legislative Initiatives Legislation can only be initiated by way of a legislative proposal directed at the National Council for passing a law (Article 41 B-VG). Such proposals can exclusively be made as bills by the Federal Government, motions by members of the National Council, the Federal 16 cf H Fischer, ‘Zur Praxis des Begutachtungsverfahrens im Prozeß der Bundesgesetzgebung’ (1972) 1 Österreichische Zeitschrift für Politikwissenschaft 35. 17 See www.parlament.gv.at/PAKT/MESN for the process and its background. 18 BGBl I No 35/1999.

40  Karl Irresberger and Christoph Konrath Council or a third of its members, or by way of popular initiative. Only members’ motions are meant to immediately initiate legislative procedures. The Federal Government may (unanimously) introduce bills at any time. This happens on average 120 times (including nearly 90 statutory law bills) a year (on the number, see section 2.3 below). There are no further or detailed constitutional rules regarding the preparation of government bills, with the exception of those on the federal budget.19 Motions by the Federal Council can be introduced by three members. They will be considered in committee and plenary, and must receive the support of the majority of the house before they can be submitted to the National Council.20 Alternatively, a third of the Federal Council’s members can submit a motion immediately. In practice, such motions are extremely rare. Popular initiatives are a means to initiate legislative proceedings upon popular demand and are considered as an element of direct democracy that supplements the Austrian model of representative democracy. Popular initiatives must concern a matter to be settled by federal law and can be put forward in the form of a draft law. If 100,000 voters support the motion, it will be submitted by the Federal Electoral Board to the National Council for action.21 Whereas the rules of procedure grant priority in parliamentary proceedings to popular initiatives, the National Council is under no obligation to adopt a law or put it to a referendum. The procedures for introducing popular initiatives and collecting signatures are regulated in detail in the Volksbegehrengesetz 2018 (Federal Act on Popular Initiatives).22 Since 2018, it has been possible to support such initiatives electronically, which has led to an increased use of this instrument. Still, so far, only one popular initiative has led to a law,23 while some have inspired legislative reforms. Each member of the National Council has the right to introduce legislative motions during a sitting. In order to proceed, it must be supported by at least five (out of 183) members, including the mover. In contrast to government draft bills, there are no further demands like explanatory notes or regulatory impact assessment. A clause of the Rules of Procedure (§ 28) that demands proposals in case the motion would entail financial burdens that are not foreseen in the Federal Budget has never been put into practice. On average, there are 100 such motions per year and more than a third of them will be moved by members of the ruling parties. This is either done to circumscribe the demands for government draft bills and accelerate procedures (see below on the lack of fast-track procedures) or to facilitate cross-party initiatives. In both cases it is likely that the draft bill is prepared in a ministry. Other motions will usually be brief and focus on single issues, while it is customary that opposition parties move resolutions calling upon the federal government to present a draft bill on certain matters.24 In this context, members complain about the lack of institutionalised support for drafting.25 19 Article 51 B-VG. 20 § 21 of the Rules of Procedure of the Federal Council. 21 Article 41 para 2 B-VG. 22 BGBl I No 106/2018. 23 The ‘Rundfunkvolksbegehren 1964’ led to the enactment of the Federal Law on the Austrian Public Broadcasting Corporation, BGBl No 195/1966. 24 Article 52 B-VG stipulates that the National Council can express its wishes concerning the exercise of executive powers by means of a resolution. 25 cf ‘Report of a Commission of the National Council on Strengthening Democracy in Austria’ 791 BlgNR XXV. GP (2015), Annex B: Minority Report 38.

Legislation in Austria  41

2.2.2.2.  Further Procedures The B-VG and the Federal Law on the Rules of Procedure of the National Council (Geschäftsordnungsgesetz), which is a federal law and not just an internal act, foresee only formal examination of legislative proposals. There is no institutionalised form of ex ante assessment of constitutionality or conformity with EU law. All legislative initiatives proceed to the committee stage. A first reading, which is a general debate on the proposal without any vote, will take place if the mover so requires or if the National Council so decides with regard to government bills, Federal Council motions or popular initiatives.26 In general, committees are not obliged to discuss and vote on the proposals. The movers of members’ motions have limited rights to demand a vote,27 but in principle, the majority decides which matters will be put to a vote and returned to the plenary. Committees can decide to consult experts or the public and can do so in particular when public criticism claims that pre-legislative procedures have been deliberately avoided. However, most hearings will – like committee meetings by default – occur in camera. At committee stage, a legislative proposal can be amended in any way and the committee will always decide by a simple majority.28 Later on, it is important to note that committees discuss the huge majority of proposals only once and close to the planned vote in plenary in order to retain government control over the matter.29 When the committee stage is completed, the committee report is taken to the chamber, which usually meets once a month (for one to three sitting days). In the second reading, the legislative proposal can be amended in any way (as long as the president considers a proposed amendment germane to the issue at hand) and amendments can be moved until the end of the debate.30 Again, there is only a formal assessment of amendments by the president and there is no demand to provide reasons or explanations for amendments. This is a regular cause for complaint, as all demands for legislative quality management, participation, transparency etc can be undermined in parliamentary procedures. As there is no obligation to adapt the initial explanatory notes or the regulatory impact assessment,31 these can henceforth be only of limited use. The second reading is concluded by voting whereby motions to amend will as a rule be voted upon before the vote on the main motion.32 Usually, the third reading (ie, the vote on the whole bill) will take place afterwards. Only motions that resolve contradictions and correct linguistic errors are allowed.33 Such motions, which are intended as a means to ensure legislative quality, are almost never moved, as the third reading follows immediately after the second reading. After an enactment has been adopted in the National Council, it is transmitted to the Federal Council, which has a suspensive veto in most cases.34 It can make a reasoned objection, but only on the enactment as a whole. Therefore, the role of the second chamber as a

26 A

first reading is only obligatory for amendments of the Rules of Procedure; see § 108. § 26 of the Rules of Procedure. 28 ibid § 41 29 cf Konrath (n 10) 569. 30 § 53 of the Rules of Procedure. 31 See section 1.5 below for further details. 32 § 65 of the Rules of Procedure. 33 ibid § 74. 34 Article 42 B-VG. 27 See

42  Karl Irresberger and Christoph Konrath safeguard of legislative quality is very limited in Austria. When the Federal Council objects, the National Council can decide once more to carry its original resolution.35 Then, the Federal Council will no longer be involved. As a result, there are no further means to resolve conflicts between the two chambers.36 There are no fast-track procedures in the Austrian Parliament and it is also not possible to combine voting on legislative proposals with other votes, ie, on confidence in the Federal Government.

2.2.3. Enactment According to Article 47 B-VG, the constitutional enactment of federal laws is authenticated by the Federal President upon submission by the Federal Chancellor, who will then countersign the authentication. It remains debatable whether authentication means a confirmation that the enactment complies with the procedures as stipulated in the Constitution and the rules of procedure or if it entails a material review. So far, the Federal President has refused authentication only once, in a case of retroactive criminal law provisions.37 This led to the implementation of proper safeguards in the Austrian e-legislation system in order to prevent such a case in future.

2.2.4. Publication Constitutional law requires the proper publication of legislation. Federal laws must be published in the Federal Law Gazette, Land (ie, provincial) laws in the respective Land law gazette. These law gazettes are also the major source of regulations issued by (either federal or Land) government authorities, including federal ministers. The law gazettes have binding force in their electronic versions exclusively and are published within the framework of the RIS,38 the federal legal information system.39 Where no specific way of publication is prescribed, ‘appropriate’ publication, suitable for the persons concerned to take notice of the content, is required.40 Article 49a B-VG provides for the re-publication of federal laws in their consolidated current versions; such re-publications rank as regulations. However, this source of law has fallen into disuse, given the easy access to (non-binding) consolidated versions offered, in particular, by the RIS.

35 But it can only do so when at least half of its members are present (art 42 para 4 B-VG). 36 In practice, such conflicts may only arise when party majorities differ in both chambers, which is an extremely rare occurrence. In that context, it is important to note that voting in the Federal Council will usually be along party lines rather than along federal entities. 37 cf the press release on proceedings in the Economic Committee of the National Council: Parlamentskorrespondenz No 43/2008. 38 Rechtsinformationssystem des Bundes, www.ris.bka.gv.at. 39 K Irresberger, ‘Die Publikation von Rechtsvorschriften in Österreich’ (2013) 1 LeGes 141. 40 VfSlg 10.602/1985.

Legislation in Austria  43

2.3.  Determination of Policy As regards legislative planning, the governmental programme made after elections is the overall basis of governmental legislative initiatives for the following time. There is, however, no annual legislative programme, nor is there a practice of launching policies via Green Papers, White Papers and the like. Sometimes a minister seeks the consent of the government for a legislative project before the drafting of a legal act, but the practice of ‘twinning’ ministers of each side of a two-party coalition, where one has to seek the consent of the other (‘Spiegelung’), occurs frequently. In the context of developing a specific project (of law), the system of impact assessment (see section 2.5 below) suggests a logical order of steps to be performed: problem analysis, definition of goals, then of measures, assessment of impacts and planning of evaluation. This logic should, of course, be observed from the very start of a (possible) project; however, the overall impression of an observer is that these steps are performed by the drafters of accompanying material rather than when the decision-making takes place. The choice of policy instruments is restrained, among other things, by the demands of Article 18 B-VG (see sections 2.1.3 and 2.1.4 above) and by the distribution of competencies, both at a constitutional level and below, eg, between ministries. The federation, for example, has to acknowledge that, basically in 1925, only a limited number of fields of administrative law were assigned to its remit. However, in the field of criminal law, federal competence is not limited. Also, the taxation system may allow mostly the federation to pursue goals – say, in the fields of energy and environmental policy – for which the instruments of administrative law are not at its disposal. Moreover, in order to pursue policies, there is some choice, but in federal law and provincial law, between administrative procedures subject to public law on the one hand and action (especially spending money on the basis of contracts) in the form of private law (Privatwirtschaftsverwaltung) on the other hand. Such pursuance of policies outside the restrictions and guarantees of public law gave rise to a specific type of statutory laws (Selbstbindungsgesetze) that attempted to ensure equal treatment, transparency and the like also in this field of public activities. The choice of policy instruments is further restrained by a political and administrative culture focused on legistic measures. This means that any grievance, accident, criminal act or high court decision can prompt amendments of existing laws or the decree of new laws. So, the body of law is constantly growing and the room for manoeuvre in terms of alternative policy approaches is rather narrow. This attitude can also explain the exceptionally high number of government bills (see section 2.2.2.1 above).41

2.4.  Formal Legisprudence 2.4.1. Instruments There are a number of instruments governing the preparatory legislative work of federal ministries. As regards the source and legal status of these instruments, they range from formal ordinances to coordinative circular letters by the competent ministry. 41 cf R Thienel, ‘(Verwaltungs-)Reformen in Österreich – warum sind sie so schwierig?’ (2017) 42 Zeitschrift für Verwaltung 6, 14.

44  Karl Irresberger and Christoph Konrath The core of this panoply of instruments42 is the Legistic Guidelines 1990 (preceded by those of 1970 and 1979). They cover the shaping of the texts of federal acts both of primary and secondary legislation in 149 articles in three chapters, concerning: (1) language (36 articles); (2) legal technique (time aspects such as entry into and termination of force, referencing, making amendments and final provisions – 63 articles); and (3) formal aspects (structure, citation, use of short titles, headings, abbreviations etc – 50 articles). A significant supplement to the 1990 Guidelines is the 1998 EU Addendum (following Austria’s accession to the EU), which contains, in particular, instructions for the implementation of EU directives and for the drafting of legal acts containing supplementary national provisions to EU regulations.

2.4.2.  Formal Elements and Structure of Drafts Every legal act has a so-called long title, indicating not only the subject but also the type of legal act (federal (constitutional) law, ordinance of a certain authority etc) and whether it is an amendment. Short titles and abbreviations (alluding to the short title) are common. The ‘Bundesgesetz über die Weiterverwendung von Informationen öffentlicher Stellen (Informationsweiterverwendungsgesetz – IWG’),43 which translates as ‘Federal Act on the Re-use of Public Sector Information (Public Sector Information Act – PSIA)’, may serve as an example. If several amendments are contained, each amended act must be named in the title, where applicable, by its short title. The title is followed by a preambular clause (‘Promulgationsklausel’), which in the case of a statutory law is a formula declaring that what follows has been resolved by the National Council (or, rarely, is the result of a popular vote) and in the case of a regulation is a clause declaring that what follows is ordered on the basis of specified statutory provisions. No further declarations and no recital precede the enacting terms. In the case of longer acts, there may be a table of contents (which forms part of the act). The basic unit of a law or regulation (in case of constitutional acts) is occasionally the ‘Artikel’, but otherwise it is the ‘Paragraph’, initiated and cited by the section sign ‘§’ (like in Germany). ‘Basic unit’ means that these units are numbered consecutively from the first to the last unit of the respective legal act. Subordinate units follow the order of paragraph (Absatz; ‘(1)’, ‘(2)’ etc), number (Z[iffer]; ‘1.’, ‘2.’ etc) and letter (litera; ‘a)’, ‘b)’ etc). Other and deeper graduations (sublitera: ‘aa)’, ‘bb)’ etc; indents: –) are discouraged, but do occur. No basic unit should comprise more than eight paragraphs. Units inserted by amendment are marked with alphanumeric suffixes (‘§ 1a’, ‘(1a)’, ‘1a.’, ‘a1)’ etc), while renumbering on the occasion of insertions or deletions is discouraged (but does occur). It is noteworthy that below the paragraph level, the layout reflects the hierarchy (ie, the level of any subordinate unit) by the use of hanging indents. Over the past few decades, the provision of each basic unit (‘Artikel’, ‘Paragraph’) with a heading of its own has evolved as a common drafting practice. The basic units referred to may be grouped into ‘Sections’, these in turn into ‘Chapters’ and then ‘Parts’ (all numbered with ordinal numbers and Arabic numerals).

42 www.justiz.gv.at/legistik 43 BGBl

I No 135/2005.

(information on legistics on the website of the Ministry of Justice).

Legislation in Austria  45

2.4.3.  Language and Style The 1990 Guidelines essentially advise drafters to use simple, short sentences and language that is close to the common standard. This is not reflected that much in practice. Apart from these guidelines, there is hardly any explicit language policy. One exception may be the preservation of Austrian legal terminology and legal concepts vis-a-vis influences coming from Germany, including via EU law; another may be the increasing use of so-called genderneutral language, which frequently means the (non-traditional) systematic use of both male and female word forms.

2.4.4. Referencing Referencing plays an important role in legal drafting, though it is slightly discouraged by the 1990 Guidelines as it usually impedes immediate and easy understanding. It is recommended to add a brief indication of what content will be found when following the reference. In the case of references to a different piece of legislation (a different act), a usage developed in times when consolidated versions were comparatively rare and consultation of the Law Gazette itself was inevitable still takes its toll. First, for the sake of the precise identification of any legal act (also in its current version), the original version of that act should be indicated by citing the gazette and the consecutive number of the act within the year of publication. Also, it should be indicated whether such reference will relate to the current version (in force at the time of the application) or a specific different version. Giving this initial situation and the feasibility of referencing to current versions as a legal standard, modern parliamentary laws usually contain a final provision setting such ‘dynamic’ referencing as the default, unless individual references expressly differ from this. An implementation of EU directives by means of referencing to directive provisions or even by mere referencing to the directive is rejected by the 1998 EU Addendum, and so is the copying of directive provisions containing references (as opposed to referring to the implementing national provisions). The use of references is limited by the case law of the constitutional court:44 if the referenced act was not published in the same gazette as the referencing act, there must be a comparable publicity and (as the case may be) precise indications must be made to facilitate the retrieval of the referenced act. The same principle is considered to be valid in case technical standards are made legally binding by reference, leading to arrangements for several categories of purely national standards (not foreign or international ones such as DIN, ISO and CEN) to be published, and respective copyrights to be compensated by an annual lump sum. Another important restriction is imposed on ‘dynamic’ referencing insofar as reference is made to acts of a different legislative authority (Normsetzer), which can be viewed as transferring one’s powers assigned by the Constitution (or another higher level of law) to a different authority. The respective case law and legal doctrine are complex. One important

44 cf C Bezemek, ‘Verweisungen in der Rechtsprechung des Verfassungsgerichtshofs’ (2014) 22 Journal für Rechtspolitik 26; K Irresberger et al (eds), Linzer Legistik-Gespräche 2015 (Linz, Land Oberösterreich, 2016) 83.

46  Karl Irresberger and Christoph Konrath aspect is that, strictly speaking, a legal situation, although created by different legislation (eg, inside the federal system, but also at the European level or by another state), can be equated to a mere fact, building upon which is not unconstitutional. Such situations may be, for instance, the existence of ‘appropriate guidelines’ such as existing technical standards45 or of immediately applicable EU law (but also of EU directives).46

2.4.5.  Amending Technique Austria belongs to those jurisdictions that give preference to exchanging the entire section or sub-section under modification over just making the change (replacement/deletion/ insertion) of the words required; nevertheless, such restrictive amendments are in line with the 1990 Guidelines in specific cases like the modification of amounts of the change of terminology. Also, amendments covering mere clauses are frequent. The location of a modification, eg, of the exchange of an expression, needs to be indicated explicitly for each occurrence; modifications should not be stipulated by a general order (which nevertheless happens, sometimes even for the whole corpus of federal law). Speaking in more general terms, modifications of existing legislation will be explicit, meaning that new legislation will be introduced via formal amendments or via new original acts whose relationship to existing pieces of legislation is defined explicitly. Superseded and outdated legislation will be repealed formally. One of the doctrines of Austrian constitutional law is that of the strict separation of powers – meaning, inter alia, that a statutory law cannot issue or amend secondary legislation47 and vice versa. Consequently, a general replacement of certain expressions by one federal statutory law can (unless ordered by constitutional law) only extend to the corpus of federal statutory law, while secondary legislation must be aligned by the respective authorities. For the same reason, a statutory law empowering executive authorities to amend itself is held to be unconstitutional; if there is a need for routine adaptions (eg, of amounts of money fixed by law), this may be done by secondary legislation on the grounds of a statutory provision, but without amending the statute itself. Also, in the event that a new statutory law replaces an existing one, it cannot order that existing ordinances remain in force (which they will nevertheless do if the new law provides a basis for the existing secondary legislation as well).48 In the past, there was a tendency to avoid frequent amendments, keeping each version of a specific act unchanged for some time; with the availability of consolidated digital versions of virtually any legal act whatsoever (in the public legal information system), this tendency has lost its importance, so that huge ‘omnibus amendments’ are now common.49

45 VfSlg 18.101/2007. 46 VfSlg 16.999/2003. 47 cf VfSlg 2542/1953, 6055/1969. 48 The doctrine according to which regulations are terminated ipso iure together with their statutory basis is called ‘Herzog-Mantel-Theorie’ (cf S Schmid, ‘Der Herzog und sein Mantel’ [2016] Zeitschrift für Verwaltung 26). 49 For example, the 1988 Income Tax Act, throughout the first three decades of its existence, was amended 132 times; only two comprehensive laws (among lesser ones) amended 228 existing laws to adapt them to the (EU) General Data Protection Regulation, but with little bearing in substance.

Legislation in Austria  47

2.4.6.  Transposition of EU Directives When transposing EU directives into domestic law, drafters have to bear in mind the rules of EU law and constitutional law, but also have to make some choices. One choice is that between referencing (adopting the merits of the directive into domestic law by mere reference) and copying and drafting. As mentioned above, the 1998 Addendum to the Guidelines has opted against mere referencing; the reader of a transposing law should not need to look up the directive. It has also opted against mere copying and for integration into the domestic legal system. If the content of the directive can be expressed by using existing Austrian terminology and within the existing system, this option is given preference (EU Addendum, No 37). It may be added that deviating from the German version of a directive can sometimes bring the provisions of the transposing law closer to the true meaning of the directive and express it more clearly. In other words, copying and referencing, in spite of certain advantages, may be missed opportunities to make a good, understandable law. It appears that reasoned deviating from mere copying should occur more often.

2.4.7.  Legistic ‘Housekeeping’ In the 1980s, when it came to the creation of a legal information system containing the texts of all legislation in force, one problem was the existence of provisions brought about by amending acts but not inserted into the amended acts, such as provisions on entry into and termination of force, transitory provisions (possibly still applicable) and also miscellaneous provisions. As a result, the 1990 Legistic Guidelines have banned ‘stand-alone’ amendment articles and require the inclusion of any such provisions into consolidated acts, with the intention of establishing consolidated acts as the almost exclusive source of legal information and relieving interested parties of having to look up the constituent amendments. Consequently, in usual consolidated acts we find final provisions citing each past amending act and listing all the provisions referred to in the respective amendment formulas along with the dates of their entry into or termination of force, while at the same time giving the pertinent transitory provisions. These final provisions are kept throughout the lifetime of that consolidated act, running into dozens and occasionally hundreds of paragraphs. In the end, there are quite a few types of regular final provisions of a technical nature in (consolidated) legal acts, including the aforementioned (on time aspects), on the dynamic character of references to other federal laws, citing implemented EU directives and notifications according to Technical Standards Directive 98/34/EC, and finally entrusting one or (in detail) more federal ministers with the execution of the federal law in question. One important means of keeping the stock of legislation in shape is what is called ‘cleaning out the law’, meaning that all laws and regulations (published in the respective law gazette) whose original versions were published before a certain date are abolished, with the exception of those listed in an appendix. This was done in 1999 for legal acts pre-dating 1946 and in 2018 for those pre-dating 2000, eliminating (in 2018) 631 out of 1,645 laws and 1,823 out of 3,355 regulations falling within that scope.50

50 BGBl

I No 191/1999 and BGBl I No 61/2018.

48  Karl Irresberger and Christoph Konrath

2.5.  Regulatory Impact Assessment Austria started an ambitious budget reform process in 2004 that was concluded in 2013. Its aim was to introduce a whole new way of administrative steering inclusive outcomeorientated management of legislative and regulatory projects.51 The new approach included the introduction of a specific system of regulatory impact assessment: so-called outcome-oriented impact assessment (OOIA). The law52 obliges all organs entrusted with the preparation of federal legal acts to take account, within the framework of an impact assessment, of their material effects, at least as regards certain ‘dimensions’ listed: financial (which will be deemed material in any event), economic, environmental and consumer protection effects, effects on children and youth, administrative costs to citizens and to businesses, social effects and effects concerning de facto gender equality. The law foresees a set of ministerial OOIA regulations.53 One of them serves as the fundamental regulation, describing the process of the assessment, the requirements in terms of methodological tools for determining impacts, the formulation of goals and measures, and the manner of depicting the results. It also specifies dimensions of impacts that have to be assessed and pursuant to what criteria impacts will be considered to be material. Other regulations, each issued by the minister whose remit is primarily affected with the respective dimension, give details in accordance with the Fundamental OOIA Regulation (WFA-Grundsatzverordnung). Due to the high administration efforts caused by the wide approach (impact assessment includes all new laws, regulations and bigger projects), the government programme provided a gradation with a comprehensive and a simplified impact assessment. As of 2015, there is the possibility of a simplified impact assessment. In that case (financial impacts on the public budget of less than €20 million and impact dimensions that have not reached certain materiality criteria), the execution of impact assessment and internal evaluation is simplified. Officials conducting regulatory impact assessments use a questionnaire by means of an IT tool, receiving guidance and support by way of explanatory texts, underlying key data (eg, average personnel and office expenses) and contacting persons in the responsible ministry.54 However, the budget reform has had an impact on the planning and management of legislation. Although there is no specific institution in charge of drafting, the Federal Chancellery and the Ministry of Finance have become involved in most interdepartmental projects which aim at the preparation of basic strategies, legislation, documents etc. In particular, the Ministry of Finance must agree on all regulations, projects etc with financial implications. In general, impact assessment is – like drafting – a primary responsibility of the individual federal ministries. But the Federal Performance Management Office (‘Wirkungscontrollingstelle’, PMO)55 is responsible for the quality assurance of the OOIA

51 cf G Steger, ‘Austria’s Budget Reform: How to Create Consensus for a Decisive Change of Fiscal Rules’ (2010) 1 OECD Journal on Budgeting 1. Note that some central components were already revoked in 2015 (BGBl I No 144/2015) and 2018 (BGBl No 60/2018). 52 § 17 Bundeshaushaltsgesetz 2013 (Federal Organic Budget Act 2013), BGBl I No 139/2009. 53 Original versions in BGBl II No 489/2012 to 499/2012. 54 www.bmf.gv.at/budget/wfa_it_tool.html. 55 cf www.oeffentlicherdienst.gv.at/wirkungsorientierte_verwaltung/controllingstelle/index.html.

Legislation in Austria  49 of the draft laws and the coordination and the overall reporting on the ex post impact assessment. The mandate focuses on formal quality according to relevance, consistency, understandability, comparability, traceability and verifiability. It is not focused on a material assessment of the objectives, which remain the responsibility of the line ministries and the council of ministers. The PMO has no direct possibility of intervention. Line ministries are required to present explanations if they do not accept the proposals of the PMO. Overall, OOIA is performed in a comparably late stage (before the consultation procedure, but hardly when making policy choices) so that in the view of the drafters, it appears to be a hurdle rather than a tool for ensuring the quality of laws.

2.6.  Evaluation and Monitoring The prime focus for evaluation is OOIA. Accordingly, § 18 of the Organic Budget Act prescribes regular internal evaluation of all kinds of legal acts in the respective sphere of action. Thus, evaluation is performed in the domain and in the interests of executive bodies. It will focus on impacts achieved and financial costs, but it need not necessarily be concerned with legal questions. Ex post internal impact assessments are required within five years of passing a new law or amendment and results are reported to Parliament by the PMO.56 The National Council or the Federal Council can demand evaluation by means of a resolution (see section 2.2.2.2 above). This happens occasionally and can relate to the management of legislation and legislative reform. Furthermore, the Rechnungshof (Court of Audit) will examine the entire management of the Federation and other entities under public law.57 While the B-VG defines arithmetical correctness, compliance with existing regulations and the employment of thrift, efficiency and expediency as criteria for examination, the Court of Audit will regularly comment on the practicability and efficiency of regulations and make suggestions on how to improve them. The Austrian Parliament has no established practice of systematically monitoring the implementation of legislation. However, there are occasional parliamentary questions on matters of implementation and application of legislation.

2.7. Training Law drafting is a practical job. Also, law drafters need a lot of interdisciplinary information and instruments, which change quickly and are best available in the specialised units of the government administration. In the federal ministries and Land governments, the number of (legal and sometimes other) experts who may be entrusted with legislative projects is comparably high, but there are not so many people specialising in this area (usually drafting of legislation is the responsibility of officials who specialise in a rather small area of law and in this area are responsible for all official business that may arise and of which drafting comprises only a comparably small part). Thus, the need for special training is often not felt

56 §

68 Bundeshaushaltsgesetz 2013 (n 52). 121 B-VG.

57 Article

50  Karl Irresberger and Christoph Konrath before the start of a legislative project. As a consequence, training offers and the needs of drafters do not always match at the right time. The centre of training for law drafters is the Verwaltungsakademie des Bundes (Federal Academy of Public Administration). Its mission comprises both basic and advanced professional training and development (primarily) of federal employees. In the field of legislative drafting, it offers ‘Legistik’, an annual programme that is composed of several modules. These include (as of 2019) the fields of law drafting proper (two days), language of law suitable for addressees (two days, held by a linguist), legislative proposals in parliamentary procedure (half a day), OOIA (half a day basic and two days in depth), fundamentals of data protection law (one day) as well as digital tools (‘E-Recht’) for drafting and workflow (one day). Modules are usually attended by a few dozen participants a year. There are scarce other training offers, such as a course at the University of Linz and internal training programmes by some Land governments.

Further Reading L Adamovich et al (eds), Gesetzgebung. Kritische Überlegungen zur Gesetzgebungslehre und Gesetzgebungstechnik (Vienna, Springer, 1981) T Öhlinger and M Potacs, EU-Recht und staatliches Recht, 6th edn (Vienna, LexisNexis, 2017) H Schäffer (ed), Theorie der Rechtssetzung (Vienna, Manz, 1988) E Wiederin, ‘Denken vom Recht her’, Schulze-Fielitz (ed), Staatsrechtslehre als Wissenschaft, [2007] Die Verwaltung, Beiheft 7, 293 www. justiz.gv.at/legistik (information on legistics on the website of the Ministry of Justice (in German)) www.ris.bka.gv.at/defaultEn.aspx (Legal Information System of the Republic of Austria, content in English)

3 Legislation in Belgium PATRICIA POPELIER

Context In the Belgian legal system, Acts of Parliament – at the federal or sub-national level – are the primary source of legislation, but secondary legislation is the dominant type. At the federal level, the bicameral system is gradually transforming into a unicameral system. Meanwhile, legislative powers are delegated to autonomous bodies as well as the supranational level. While the Constitution, legislation and Rules of Procedure provide a legal framework for law-making activities, a coherent legislative policy to secure the quality of the law is still lacking.

3.1.  The Concept of Legislation Legislation, defined as ‘the authoritative and constitutionally controlled form in which law is cast’,1 is the primary instrument of governance in Belgium. In the Belgian constitutional system, two categories of legislation have specific legal meaning. One category classifies legislation according to its source (see section 3.1.1), while the other makes a distinction according to its scope (see section 3.1.2).

3.1.1.  Typology According to Source Different legal regimes apply to legislation, according to its source. For example, judicial review of Acts of Parliament is (mainly) concentrated within the Constitutional Court. The source will also determine which procedural requirements have to be followed as well as the act’s position in the hierarchy of norms. Moreover, in the Belgian federal system, the author of the act determines the material competence, as powers are distributed to the federal and federated authorities on the basis of exclusivity. It is therefore a principle of

1 W Voermans, ‘Legislation and Regulation’ in U Karpen and H Xanthaki (eds), Legislation in Europe: A Comprehensive Guide for Scholars and Practitioners (Oxford, Hart Publishing, 2017) 19.

52  Patricia Popelier legislative drafting to always identify the source in the title of the legal act. Moreover, if the law implements EU law, this indirect source should also be mentioned in one of the first provisions of the act.2 Constitutional acts – the Constitution is the supreme act in the Belgian legal order. The constitutional power consists of the king (acting with the executive), the House of Representatives and the Senate. Constitutional provisions can only be amended according to the procedure prescribed in Article 195 of the Constitution (see section 3.2.1.1). There is no judicial review ex ante or ex post as to the observance of Article 195 or the legitimacy of the new provisions. Acts of Parliament – the Belgian Constitution regards Acts of Parliament as the most important type of legislation, apart from the Constitution itself. In the Belgian federal system, three types of parliamentary laws are distinguished: federal laws adopted by the federal Parliament; ‘decrees’ adopted by the Parliaments of most federated entities; and ‘ordonnances’ adopted by the parliaments of specific federated entities – the Brussels Region and the Joint Community Council in Brussels. These three types have equal legal force. They are invested with representative legitimacy, which entitles them to a special regime of judicial review, concentrated within the Constitutional Court, which adjudicates conflicts of competences and reviews statutes against fundamental rights. However, any court can review all Acts of Parliament against directly binding international law. Also, any court can review ordonnances against those provisions in the Constitution or the special Brussels Act for which the Constitutional Court has no power to review.3 While the Constitution assigns primary legislative power to the Parliament and allows for delegations to the executive,4 it reserves specific matters for regulation by an Act of Parliament. This is the case, amongst others, in the domain of fundamental rights,5 fiscal law,6 the establishment of courts7 and the status of military personnel.8 According to the interpretation of the Constitutional Court, delegations in these subject matters are still allowed, but the essence of the matter has to be laid down in the Act of Parliament.9 In practice, the Court is rather flexible in its assessment, especially if a legal basis is found in EU law.10 A specific type of Parliamentary Act covers the so-called ‘double decrees and/or ­ordonnances’. This was introduced in 2014 as an alternative for interfederal ­cooperation agreements and enables the joint establishment of institutions or the joint execution of competences by federated entities, called Communities and Regions.11 This type of 2 Recommendation 94 in Principes de techniques législatives. Guide de redaction des textes législatifs et règlementaires (hereniafter Council of State, Guidelines Drafting Techniques), www.raadvst-consetat.be. 3 The Constitutional Court only has the power to (direct) review of parliamentary acts against the provisions that allocate powers between the federal and subnational entities, against fundamental rights and against some specific institutional provisions. 4 Articles 36, 105 and 108 of the Constitution. 5 See several provisions under Title II of the Constitution – eg, no offence or punishment without a law (arts 12 and 14) or no expropriation without a law (art 16). 6 Articles 170 and 172 of the Constitution. 7 ibid art 146. 8 ibid art 182. 9 For a detailed discussion, see W Pas and B Steen, ‘Met het nodige voorbehoud. Het grondwettelijk voorbehoud aan de formele en federale wetgever (deel 1)’ (2001) Tijdschrift voor Wetgeving 362; P Popelier, ‘La loi aujourd’hui’ in I. Hachez et al (eds), Les sources du droit revisitées (Limal, Anthemis, 2013) 33–39. 10 See P Popelier, ‘The Implementation of EU Law in Belgium’ (2017) Ossevatorio sulle fonti 5–6. 11 Article 92bis/1, § 4 Special Majority Law of 8 August 1980 on the reform of institutions.

Legislation in Belgium  53 legislation is discussed by an interparliamentary committee consisting of an equal number of MPs of each involved Parliament, but subsequently approved by each assembly alone. They can amend or replace existing decrees and ordonnances, and can only be replaced or removed by another joint decree or ordonnance. So far, mainly francophone entities have been interested in adopting this type of legislation.12 This is because the French Community and the Walloon Region overlap geographically, whereas the Flemish Community and the Flemish Region have merged. Secondary legislation – while Acts of Parliaments are the most important acts in terms of principle and hierarchy, secondary legislation outweighs parliamentary acts by far in terms of quantity. For each Act of Parliament, roughly ten general executive orders are enacted. They are not endowed with direct representative legitimacy and lack transparency as to their decision-making process, but specific safeguards against arbitrary interference are in place. First, they have to find an implicit or explicit basis in an Act of Parliament: with some rare exceptions (for example, the status of administrative staff), the government cannot act without a legislative mandate. Second, all acts have to comply with higher (written and unwritten) rules, under the judicial supervision of every court13 as well as the Council of State, Administrative Litigation Section, an administrative court with the power to annul irregular orders.14 Judicial review is broader compared to primary laws: courts can review the form, procedure and content of secondary laws, whereas the Constitutional Court, in principle, abstains from reviewing the compliance of Acts of Parliaments with procedural requirements. Third, procedural requirements are in place, as explained below in section 3.2.1.4. Regulation by autonomous bodies – less frequently, legislative powers are delegated to autonomous agencies. Delegation to regulatory agencies poses constitutional problems, as Article 33 of the Constitution states that all powers emanate from the nation and are exercised in the manner established by the Constitution, while no constitutional provision mentions regulatory agencies. Yet, some exceptions to the principle that no legislative powers can be delegated to autonomous bodies are widely accepted. First, autonomous public bodies are allowed to establish minor detailed regulations and internal regulations, for example, concerning its staff,15 as well as the terms of a public service.16 Next, Parliament may delegate wider legislative powers to autonomous public bodies in specific matters determined by the law17 if this remains under jurisdictional and parliamentary control.18 Finally, delegations are more easily accepted when they are imposed by EU law. When the parliamentary act that delegated powers to the federal Electricity and Gas Regulator was challenged before the Constitutional Court, the argument that the minister was not able to control the board of the regulator in such a way that he or she could take up political

12 For an overview, see P Caboor and H El Bachiri, ‘De gezamenlijke decreten en ordonnanties schieten uit de startblokken’ (2018) 21 Tijdschrift voor Wetgeving 150–54. 13 Article 159 of the Constitution. 14 ibid art 160. 15 Council of State, No 25.595, Wauthier, 30 July 1985; No 45.864, bvba Biorim, 28 January 1994. 16 Council of State, No 30.876, Leener and Ballon, 27 September 1988. 17 Constitutional Court No 24/98, 10 March 1998. 18 Constitutional Court No 130/2010, 18 November 2010.

54  Patricia Popelier accountability before Parliament did not convince the Court.19 It referred to the system of judicial control that was put in place, as well as the Parliament’s power to approve the budget and the annual report, for which the minister could be called to account. The point was that the minister had no means of direct control over the Regulator and therefore could not realistically be held accountable. Interestingly, the Court added that even so, the Act of Parliament still found a basis in the Constitution, since Article 34 allows for a transfer of powers to supranational organisations. In subsequent decisions, the Court, while annulling provisions that limited the independence of the regional Walloon Regulator, decided that several obligations requiring consultations and transparency did not restrict the Regulator’s independence, but were legitimate requirements to secure the high quality of regulation.20 Regulation by non-state actors: collective labour agreements – an important part of the regulation on labour relations is included in collective labour agreements, concluded by trade unions and employers’ federations. The binding force of such agreements varies, depending on where they were concluded and whether the king has declared them ‘generally binding’. The fact that these agreements that have not been declared generally binding still have a limited binding force, for example, on employees of a firm that is a member of the concluding federation, and the fact that the king has no power of initiative or amendment make this instrument dubious from a constitutional point of view.21 Yet, the Constitutional Court recognised the binding force of collective labour agreements.22 Regulation by non-state actors: professional corporations – several professional corporations establish deontological codes of conduct. The Council of State, Legislative Branch is critical of laws that give normative power to such codes,23 for constitutional reasons and because important safeguards, such as consultation and transparency requirements, are lacking. Remarkably, the Council of State does accept the binding force of the deontological code of the Bar Association even in the absence of ministerial approval, with the argument that lawyers guarantee the freedom of citizens.24 The argument is rather bizarre, as it implies that Parliament cannot be trusted to safeguard ‘the freedom of citizens’. As for the deontological code of the Order of Doctors, the Act of Parliament requires the king’s approval, which it never acquired. Nevertheless, the Supreme Court decided that even if the code has no binding force in itself, its provisions are nevertheless applicable as guidelines of careful behaviour.25 International law – Belgium is a monist state, which means that international treaties concluded in conformity with the constitution and approved by Parliament are directly

19 ibid. 20 Constitutional Court Nos 117/2013, 7 August 2013 and 71/2016, 25 May 2016. 21 H Dumont, ‘Droit public, droit négocié et para-légalité’ in P Gerard et al (eds), Droit négocié, droit impose? (Brussels, Publ FUSL, 1996) 474–75; L François, Théorie des relations collectives du travail en droit belge (Brussels, Bruylant, 1980) 355; I Kovalovszky, ‘A propos du pouvoir réglementaire’ (1996) APT 304; P Popelier, Democratisch wetgeven (Antwerp, Intersentia, 2001) 292–98. 22 Constitutional Court No 37/93, 19 May 1993 and No 145/2004, 15 September 2004. 23 For an overview, see P Popelier and J van Nieuwenhove, ‘Decentralisering en privatisering van wetgeving’ in J de Mot (ed), Liber Amicorum Boudewijn Boeckaert. Vrank en Vrij (Bruges, Die Keure, 2012) 269–76. 24 Advice Council of State 22.537/2 of 21 November, unpublished. 25 For an overview of the Supreme Court’s case law, see H Nys, Geneeskunde. Recht en medisch handelen (Ghent, Story-Scientia, 2005) 80–82.

Legislation in Belgium  55 binding. On the basis of Article 34 of the Constitution, which allows for the transfer of powers to international and supranational organisations, secondary EU law is also binding within the Belgian jurisdictions. In its milestone Franco Suisse Le Ski decision of 27 May 1971, the Supreme Court declared the supremacy of international law over domestic statutes.26 Later on, the Supreme Court also confirmed the supremacy of the European Convention on Human Rights over the Constitution.27 In turn, the Council of State based the supremacy of EU secondary law over the Constitution on Article 34 of the Constitution.28

3.1.2.  Typology According to Scope A second category distinguishes material and non-material laws, the former referring to laws with a general scope and the latter to laws without a general scope.29 A law has a general scope when the number of persons to which it applies cannot be determined in advance and when it is subject to repeated applications. Again, each type of law is subjected to a different legal regime. For example, an administrative act with an individual scope must contain reasons that explain the decision and must mention where and according to which modalities the act can be challenged. These acts have to be notified to the individual, whereas laws with general scope have to be published before they can enter into force. Also, the Council of State, Legislation Section can only give advice on provisions with a general scope. Moreover, in principle, individual acts cannot deviate from general rules. Even individual parliamentary acts must be coherent with general rules; they can only deviate from general rules if this is justified under the equality principle. Sometimes, a norm falls between two types. For example, a law that gives approval to an international treaty has an individual scope: it refers to one specific act and once it has given approval, the treaty has binding force within Belgium, but the act of approval is used up. Yet, such laws have a bigger impact because they give binding force to acts that may contain binding provisions of general scope. Therefore, the Council of State considers them an intermediate category for which its advice is still required. In the traditional separation of powers scheme, Parliament makes laws with a general scope, whereas the government operationalises these laws and applies them in individual cases. Nevertheless, Parliament has the power to vote individual laws, provided they are in conformity with the Constitution in general and the equality principle in particular. Such laws are regarded with some suspicion, as they are often enacted to remedy an executive act that is challenged – or even annulled – before ordinary or administrative courts. The Constitutional Court finds such law contrary to the Constitution if its purpose is to circumvent the usual guarantees included in the administrative regulatory procedure30 or to hinder judicial review. Mostly, the Court is of the opinion that access to the Court is not hampered

26 Supreme Court (Cour de Cassation), 27 May 1971, (1971) Pas I, 886. 27 Supreme Court 16 November 2004, AR P.04.0644.N. 28 Council of State, Orfinger No 62.920 and 62.922, 5 November 1996. 29 In more detail, see P. Popelier, ‘La loi aujourd’hui’ in I. Hachez et al (eds), Les sources du droit revisitées (Limal, Anthemis, 2013) 19–22. 30 Constitutional Court No 129/2002, 10 July 2002.

56  Patricia Popelier because Acts of Parliaments can be challenged before the Constitutional Court.31 It ignores the fact that the latter review is more limited than the review of administrative acts before the Council of State, as the Constitutional Court will, in principle, not check for conformity with procedural rules or principles of good administration. Exceptionally, the Constitution attributes the power to take individual decisions directly to Parliament. Article 9 of the Constitution states that naturalisation is granted by the federal legislative power. The Constitution’s purpose in 1831 was to ensure alertness when granting political rights to newcomers.32 Remarkably, the Constitutional Court is of the opinion that, as naturalisation is not a right but the result of a sovereign act of discretion and attributed to the legislative power, it must not be supported by reasons and cannot be subjected to judicial review.33 This argument departs from a sovereignty concept that is otherwise outdated. The idea that sovereignty implies that any decision can be taken, even if it is arbitrary and unreasonable, contradicts developments in the Belgian constitutional system, which subjects Acts of Parliament to constitutional review and adheres to the rule of law as a safeguard against the arbitrary use of government power. Moreover, it is inconsistent with its case law concerning individual administrative acts undertaken by a legislative assembly concerning its staff, where the Constitutional Court stated that the absence of a judicial remedy violates the Constitution.34

3.2.  The Law-Making Activity: Organisation and Procedure 3.2.1.  The Legislative Framework 3.2.1.1.  The Constitution The procedure to revise the Constitution consists of three phases. First, the executive and both the House of Representatives and the Senate make a list of those provisions that are eligible for revision or new provisions that should be inserted. As soon as this is published in the Official Gazette, the Parliament is dissolved and elections are held. In a final step, proposals to revise any article included in the list have to be adopted by a two-thirds ­majority. Under some circumstances (eg, war), parts of or the entire Constitution cannot be revised.35 A specific procedure is in place for the coordination of the Constitution.36 Despite the fact that the Constitution is the supreme national law, there are only a few safeguards to ensure the quality of these provisions. The Council of State has no power to scrutinise the legal and drafting quality of the proposal and constitutional provisions are excluded from judicial review.



31 eg,

Constitutional Court, No 94/2003, 2 July 2003;Constitutional Court No 151/2003, 26 November 2003. Huyttens, Discussions de Congrès National de Belgique (Brussels, A Wahlen, 1844), I, 562–63. 33 Constitutional Court No 61/96, 7 November 1996; No 75/98, 24 June 1998. 34 Constitutional Court No 31/96, 15 May 1996. 35 Articles 196 and 197 of the Constitution. 36 ibid art 198. 32 E

Legislation in Belgium  57

3.2.1.2.  The Federal Parliamentary Procedure Unicameralism and bicameralism – the Constitution is mostly interested in the federal parliamentary procedure. It distinguishes three procedures: a unicameral procedure; an asymmetrical bicameral procedure; and a symmetrical bicameral procedure. In 2014, the bicameral system was revised. The Senate now consists of members of the sub-state parliaments, along with 10 co-opted senators, whereas the House is still composed on the basis of direct elections. The reform turned the Senate into a more genuine representative of the sub-states, but at the same time deprived it of most of its powers.37 Since then, the unicameral procedure, which involves the executive and the House of Representatives but excludes the Senate, is the regular procedure.38 Four categories of laws follow the asymmetrical bicameral procedure.39 The first two categories concern institutional laws. The third category concerns laws that are passed to ensure the observance of international or supranational obligations, when the Belgian state is held accountable for the non-observance by sub-state authorities. The last category includes the laws relating to the Council of State and to federal administrative courts. These laws are adopted by the House of Representatives, but the Senate has the right to discuss the bill and propose amendments, which the House may disregard. In the symmetrical bicameral procedure, the House and the Senate have equal powers of initiative, amendment and vote. A law can only be adopted with the approval of both Houses if it falls under one of five categories:40 (1) a constitutional revision or coordination; (2) an institutional law to be passed by both Houses, with or without a two-thirds majority by virtue of the Constitution – eg, concerning the powers of the Flemish and Walloon Regions, or the Constitutional Court; (3) institutional and finance laws regarding the German-speaking Community; (4) the financing of political parties and the control of electoral expenditure; and (5) the organisation of the Senate and the Senator’s status. A special majority law may complete the list with additional categories. Laws must indicate, in the first article, which procedure is followed.41 Possible conflicts are settled by a parliamentary consultation committee composed equally of members of both Houses.42 Procedure – both the government (acting in the name of the king) and members of the House of Representatives have the right of initiative and the right of amendment. Senators only have the right of initiative with regard to matters that follow the symmetrical bicameral procedure.43 In specific matters, the law may require that a government bill has been discussed by the Council of Ministers. A draft bill may only be adopted after having been voted on article by article and the Rules of Procedure must provide for a second reading.44

37 See in more detail P Popelier, ‘Bicameralism in Belgium: The Dismantlement of the Senate for the Sake of Multinational Confederalism’ (2018) 10 Perspectives of Federalism 215. 38 Article 74 of the Constitution. 39 ibid art 78. 40 Article 77 of the Constitution distinguishes six categories, but all laws under category 3 (special majority) are included in category 2 (the matter must be settled by both Houses). 41 Article. 83 of the Constitution. 42 ibid art 82. 43 ibid art 75. 44 ibid art 76.

58  Patricia Popelier Laws are, in principle, adopted by a majority vote, unless specific majorities are required. For example, most institutional laws require a special majority law, consisting of a majority in each language group of each House (a French and a Dutch one), and a two-thirds majority overall.45 Finally, the king – always acting with the government – sanctions and promulgates the law.46 This only gives him a veto right on paper; in practice, political reality prohibits the king to refuse to sign a law adopted by Parliament. Sub-national involvement – in this constitutional framework, involvement of the substates47 in the federal law-making process through the upper house is extremely limited. This is even the case in matters that affect the sub-states. For example, tax laws are a concurrent competence, with priority for federal laws, but the Senate has no say over them. Also, sub-states are obliged to ask the Council of State, Legislation Section for advice and their executive acts can be annulled by the Administrative Litigation Section. Still, the Senate can propose amendments, but has no right of initiative or decisive authority. Yet, a more direct form of involvement is provided, showing a preference for individual rather than collective sub-national veto rights. If a bill or proposal threatens to harm the interests of a sub-state (called Community or Region), this entity can interfere to force consultation.48 If no agreement is found after 60 days, the Senate is called upon to give advice to a Consultation Committee, consisting of federal and sub-national executive representatives, which takes the final decision. Also, each language group has a suspensory veto if a bill is likely to harm its interests.49 As the political parties in power are all region-based, this is also a way to protect sub-state interests. However, this procedure is not often invoked, as executive bills have already been scrutinised from this angle, due to the constitutional requirement of language parity in the federal government. In addition, special majority laws sometimes impose consultation requirements for specific matters, under the judicial supervision of the Constitutional Court.50 Even in the absence of such formal requirements, the Constitutional Court reads a proportionality principle in the provisions that allocate powers to federal or sub-state authorities.51 If the federal or federated Parliament issues a law within its field of authority, it must not make it impossible or excessively difficult for the other entities to exercise their own powers.52 This often comes down to an examination of the decision-making procedure: involvement of the other entities in the exercise of authority is an indication that the law is proportionate.53

45 ibid art 4, 2nd para. 46 ibid art 109. 47 Officially there are six (geographically overlapping) sub-states in Belgium, three Regions and three Communities. However, the Flemish Region and the Flemish government have merged, and within the Brussels territory, two small additional sub-states have emerged, with a limited set of legislative powers. For more detail, see P Popelier and K Lemmens, The Constitution of Belgium: A Contextual Analysis (Oxford, Hart Publishing, 2015) 71–84. 48 Article 143, §2 of the Constitution. 49 ibid art 54. 50 Article 30bis of the Special Law on the Constitutional Court. 51 A-C Rasson, ‘Le principe du “vivre ensemble” belge: une épopée constitutionnelle’ (2012) Chroniques de droit public 27. 52 eg, Constitutional Court No 70/96, 11 December 1996; Constitutional Court No 173/2004, 3 November 2004; Constitutional Court No 91/2014, 12 June 2014. 53 In particular Constitutional Court Nos 4/95, 6–10/95, 2 February 1995.

Legislation in Belgium  59 On occasion, the Constitutional Court even requires the conclusion of a cooperation agreement. This is in particular the case in converging but fragmented competences. For example, the Court decided that the Communities, which had competence for radio and television broadcasting, and the federal authority, which had competence for other means of telecommunication, need to cooperate when regulating in the field of electronic transmission infrastructures, considering the converging nature of the matter.54 Quality safeguards – ordinary laws add requirements to safeguard the quality of legislation. These requirements address the government, which is the initiator of most laws that are actually adopted. Before submitting the bill to Parliament, the government has to ask the advisory opinion of the Council of State on the legal and drafting quality of the bill.55 The Financial Inspection has to give approval, and other consultation requirements may be put in place. Also, in principle, the law demands the drafting of an impact assessment, discussed below.56 Additional procedural requirements are included in the House’s Rules of Procedure. These rules demand that a bill is accompanied by an explanatory memorandum; the Council of State’s advisory opinion; where applicable advisory opinions of the High Council of Justice on bills regarding the functioning of the judiciary; the regulatory impact analysis; a summary of the purport of the bill; possible attachments; and a coordination of the laws that are amended by the bill.57 The Rules of Procedure also include provisions to manage the use of omnibus laws, which assemble a bulk of unrelated rules in one law, modifying a whole range of existing statutes.58 According to these Rules, provisions in arrangement laws that are not clearly related to the budget are prohibited and should be removed from the bill.59 For other omnibus laws, the bill can be split into separate bills if the provisions relate to different ministerial departments.60 Further, the Council of State in its drafting guidelines discourages the use of stand-alone provisions in omnibus laws, unless they are limited in time.61 In practice, omnibus laws are frequently adopted, at a rate of 1.5 per month on average. Most of them are situated within one policy field and several of them concern the transposition of EU directives. Arrangement laws are adopted twice a year. They are the most problematic type of laws, as they are highly complex, but are not accompanied by coordination tables; urgency procedures limit the Council of State’s time for an advisory opinion and the intensity of the parliamentary debate is reduced.

54 Constitutional Court Nos 132/2004, 14 July 2004 and 128/2005, 13 July 2005. In 2014, the competenceallocating rules were adjusted accordingly. 55 Article 3 of the Coordinated Laws on the Council of State. 56 Article 5-12 of the Law of 15 December 2013 holding various provisions on administrative simplification, Official Gazette, 31 December 2013. 57 Article 74.1 of the Rules of Procedure of the House of Representatives. 58 For this and similar definitions, see, amongst others, G Krutz, ‘Getting around Gridlock: The Effect of Omnibus Utilization on Legislative Productivity’ (2000) XXV Legislative Studies Quarterly 533; P Popelier, ‘Mosaics of Legal Provisions’ (2006) VII European Journal of Law Reform 47; B Sinclair, Unorthodox Lawmaking: New Legislative Processes in the US Congress, 2nd edn (London, Sage Publishing, 2000) 71. 59 Article 72.4 of the Rules of Procedure of the House of Representatives. 60 ibid art 72.1. 61 Recommendation 85 in the Council of State’s Guidelines Drafting Techniques. See also the ‘bad practice’ at p 52 of the Guidelines.

60  Patricia Popelier

3.2.1.3.  The Sub-national Parliamentary Procedure Due to space restrictions, this chapter focuses mainly on the federal procedure. For sub-national procedures, roughly the same rules apply. The most important difference is that all sub-national parliaments are unicameral. Also, the king has no competence in sub-national matters. Instead, the government acting alone has the right of initiative, and sanctions and promulgates the laws. While each sub-national entity can organise the pre-parliamentary procedure according to its own preferences, the obligatory consultation of the Council of State, Legislation Section is a federal matter, even concerning sub-national decrees and ordinances.

3.2.1.4.  Secondary Legislation Before adopting executive orders with a general scope, the government has to seek the legal advice of the Council of State, Legislation Section. The Council must be consulted, except in cases of urgency. However, the executive must give reasons why it could not even wait for urgent advice within five days. The Council of State, Administrative Litigation Section will annul the order if it is of the opinion that in reality, no such urgency arose. Other consultation requirements are regularly imposed by law. For example, for federal laws concerning the judiciary, the advisory opinion of the High Council of Justice is required. In the Flemish Community, strategic advisory boards are in place for every policy domain, consisting of stakeholders, to ensure expertise and support. Gradually, the practice to conduct impact assessments has been established, first at the level of the Flemish Community and later also at the federal level. While this is a legal obligation at the federal level, albeit with many exceptions, it is only inserted in administrative circulars at the Flemish level, and there are plans to replace it with a more elaborated explanatory memorandum. This is further discussed in section 3.5.

3.2.2.  Legislative Policies All in all, the framework constituted by the Constitution, legislation and Rules of Procedure is partial and fragmented. No coherent and well-implemented legislative policy is in place to underpin this framework and to provide safeguards for the quality of legislation. An illustration of this is the absence, at the federal and sub-national levels, of professional legislative drafters or consultation officers. The Flemish Community was the first, in the 1990s, to introduce a better legislation programme. It adopted an order that lays down quality criteria for legislation; it produced its own circulars on legislative drafting; it introduced impact assessments; it established a body – the Office for Legislative Moderation (Dienst Wetsmatiging) – that produced guidelines for impact assessments, consultations etc, organised training and checked the quality of impact assessments; it adopted a circular on explanatory memorandums that required the government to explicitly reply to comments in advisory opinions; and it organised ‘legislative cells’ within departments to act as helpdesks for the drafting of legislation. Eventually, however, political support was lacking. The Office for Legislative Moderation was moved from the Chancellory to the Department of Internal Affairs, its staff was reduced, tasks were

Legislation in Belgium  61 reduced and finally the Office was split into two. Legislative cells were not given the support they needed to develop into centres of expertise. Finally, impact assessments will soon be replaced by a more detailed explanatory memorandum. At the federal level, developments took more time. At first, the focus was on the reduction of red tape. Gradually, impact assessment requirements were introduced by law. Also, a parliamentary committee was established by law for the evaluation of laws ex post. These will be discussed below in section 3.5. Meanwhile, the federal level does not produce its own drafting guidelines; instead, it relies upon the Council of State’s Drafting Guidelines, which, as a consequence, are not internalised in the legislative practice. Special efforts have been made at all levels to organise the procedure for the implementation of EU law.62 The Council of State’s Drafting Guidelines prescribe the inclusion of transposition tables in the legislative file and recommend the avoidance of goldplating, which implies that provisions are added that go beyond the strict requirements of EU law.63 Ministerial circulars introduce an organogram and procedure that is mainly focused on the appointment of officers responsible for the coordination and communication of implementation activities, the identification of laws affected by the EU directive and the reporting of implementation activities. However, no substantive impact assessments are conducted to estimate the socio-economic impact and administrative costs, enabling the government to have an impact on the EU law-making process and to prepare for the budgetary consequences of implementation.

3.3.  Goals and Instruments of the Law According to Purnhagen and Feindt, legislative tools should reflect the goals and values prioritised in the EU Treaties, such as fundamental rights, health protection, consumer protection and environmental protection. They applied this to EU impact assessments: these goals and values determine the type of data the Commission should collect and the weight attached to them in the overall balance of options.64 Likewise, in national legal systems, constitutions give weight to fundamental rights and specific values, and these should be reflected in the legislative toolbox. Although in 1831, the Belgian Constitution was designed as a mundane, practical document that kept far from bombastic principles, the present text presents several goals and values. Title II contains a list of fundamental rights, with particular attention given to gender equality (Article 11bis), children’s rights (Article 22bis) and social, economic and environmental goals (Article 23). Moreover, Article 7bis explicitly names ‘sustainable development’ as a policy goal: ‘In the exercise of their respective competences, the Federal State, the Communities and the Regions pursue the objectives of sustainable development in its social, economic and environmental aspects, taking into account the solidarity between the generations.’

62 See P Popelier, ‘The Implementation of EU Law in Belgium’ (2017) Osservatorio Sulle Fonti 1. 63 Recommendations 191–94 of the Council of State’s Guidelines Drafting Techniques. 64 K Purnhagen and PH Feindt, ‘Better Regulatory Impact Assessment: Making Behavioral Insights Work for the Commission’s New Better Regulation Strategy’ (2015) 6 European Journal of Risk Regulation 363.

62  Patricia Popelier Some of these goals are indeed given specific attention. For example, in Flanders, the general duty to draw impact assessments is laid down in administrative guidelines, but the specific duty to measure the impact on children and youth whenever a bill is likely to directly affect persons under 25 is imposed by law.65 At the federal level, the impact assessment grew out of two impact assessment requirements laid down in law: a gender test and a sustainable development test.66 While these goals and values are concretised in specific laws, legislation itself is not expected to point them out in explicit provisions. It is a rule of drafting technique that the provisions in the law have a normative scope and do not merely explain the purpose of the law.67 Nonetheless, such provision could have a normative scope, as it could be read as a duty for judges (and other persons) to use a teleological interpretation when applying the law.

3.4.  Drafting Techniques In Belgium, there is no specific staff of legislative drafters trained to draft laws and regulations. The drafting of a law is just one of the tasks assigned to civil servants, who are expected to learn by doing. At times, workshops are organised and guidelines are developed by way of support. Some entities, such as the Flemish Community, have their own circulars. Here, we focus on the Guidelines developed by the Council of State, as they address both the federal and the sub-national levels and are applied by the Council’s Legislation Section when bills and proposals of Acts of Parliament and regulations are reviewed for an advisory opinion. Nonetheless, it can be argued that each entity with law-making power should develop its own guidelines. First of all, it is the responsibility of each law-making government to reflect upon the quality of the law. Developing and monitoring drafting techniques, then, is part of a more general law-making policy. Second, it would secure better implementation in practice. The Council’s Guidelines contain recommendation as well as models. These recommendations address the structure of laws, the phrasing of clauses, delegations, referral techniques, references to EU law etc. They also include a chapter with practical information on consultations with the Council of State. Most of these guidelines are generally accepted; some are more debatable. For example, a debatable recommendation, already mentioned in section 3.3, is that the law should not mention goals, whereas this might be of importance in order to control the method of interpretation. Gradually, however, with each revision, new insights seep through. One innovation concerns new provisions in existing laws. Traditionally, the prefix bis, ter, quarter etc identified new provisions. The new guidelines recommend the use of Arabic numbers: Article 3/1, 3/2 etc. One of the reasons for this is that this type of numbering is better suited for search actions in electronic databases.68 65 Article 4 of the Flemish Community Decree of 20 January 2012 on a renewed youth and children’s rights policy. 66 For this development, see P T’Kindt and J van Nieuwenhove, ‘De federale voorafgaande regelgevingsimpactanalyse (RIA) – Een wassen neus of een stapje vooruit?’, (2014) Tijdschrift voor Wetgeving 168. 67 Recommendation 83 in the Council of State’s Guidelines Drafting Techniques. 68 ibid recommendation 64.

Legislation in Belgium  63 Another new insight concerns the heading of articles. In older versions, this was discouraged as something that should only be used in exceptional cases.69 In the current Guidelines, a more positive yet careful attitude is discernible: if a text addresses several points of equal importance, a heading for each article should be considered so as to easily recognise each point. However, the Guidelines warn for practical objections and stress that the heading and content of the article should be in total agreement.70 The Council’s Guidelines recommend using the explanatory memorandum to explain the goal of the law, its starting points and to point out what are the most important innovations. Also, they recommend giving comments for each article separately71 and indicating when and why the Council’s advisory opinion was not followed.72 Interestingly, the Flemish Parliament developed its own Guidelines and a model for the explanatory memorandum, which is more detailed than usual.73 Besides the traditional ingredients – the purpose of the law and a discussion of the content – the Guidelines expect that the Memorandum includes a problem analysis, an analysis of the legal and political context, a (summary of the) impact analysis, the giving of reasons for possible deviations from advisory opinions of the Council of State or strategic advisory councils, an overview of executive orders that need to be enacted or amended, how supervision and enforcement is planned, and which consultation requirements are prescribed for the matter at hand.

3.5.  Implementation and Assessment of Laws 3.5.1.  Political Context As mentioned above, Belgium is not exactly a forerunner in the implementation of regulatory policy schemes. Flanders used to be the most advanced government in this respect, but is losing interest. This is reflected in a poor performance in terms of the evaluation ex ante and ex post, the use of expertise and consultations with stakeholders other than the social partners. An OECD report on better regulation in Belgium highlights the weak spots: ‘the involvement of politicians in rule drafting makes the implementation of impact assessment particularly difficult’, with impact assessments conducted too late to guide the decisionmaking process and becoming ‘an ex post justification for decisions which have already been reached’,74 and ‘transparency is also weak with often limited efforts to consult with stakeholders and little effort at publication’.75

69 See Recommendation 8.5.1.3 in the older version published as an annex in Tijdschrift voor Wetgeving (1999/1). 70 Recommendations 54 and 55. See G van der Biesen, ‘Over het begin van het einde van bis en andere ­stijlbreuken in de wetgevingstechniek’ (2008) Tijdschrift voor Wetgeving 219. 71 Recommendation 3.13. 72 Recommendation 231.3. 73 See https://overheid.vlaanderen.be/regelgeving/wetgevingstechniek/richtlijnen-van-het-vlaams-parlementvoor-een-memorie-van-toelichting. 74 OECD, Better Regulation in Europe. Belgium (Paris, OECD Publishing, 2010) 51. 75 P Popelier, P van Humbeeck, A Meuwese and K van Aeken, ‘Transparant consulteren in Vlaanderen: de spanning tussen rationeel wetgevingsmodel en besluitvormingspraktijk’ (2012) Tijdschrift voor Wetgeving 2, 9.

64  Patricia Popelier Administrative and political culture are important factors in predicting the success or failure of a legislative policy.76 Several characteristics of the Belgian system do not tie in well with instruments of rational law-making such as regulatory impact analyses: it has a formallegalistic culture rather than an informal one, which is typical of common law systems; law-making is dominated by policy cells of personal councillors to each minister who interfere in policy-making and policy implementation;77 decision-making is an obscure process due to the system’s consociational nature, the distrust between these councillors and the administration, as well as the highly developed partitocracy.78 In a consociational system, compromises are made between representatives of various social segments – in Belgium in particular, the language groups and the social partners. While this is often vital for the stability of a divided state such as Belgium,79 it also leads to partitocracy and opaque elite-based decision-making,80 which disagrees with the transparent use of studies, facts and figures required in a rational legislative policy model.81 In this system, laws that result from negotiated compromises may be considered more important than evidence-based efficiency. On the other hand, in some cases, turning to technical expertise may help to depoliticise contentious issues and help in the reaching of a compromise.82 For this reason, several permanent advisory councils are established to assist the law-maker in its legislative activities. However, expert advice and representation are often mixed up in this system, where councils consist of representatives of privileged interest groups and corporatist social partners, and are often consulted too late in the process to have any impact. The most influential expert advice comes from interest groups that find their way into policy cells, often without leaving many traces, and are hard to distinguish from lobby groups.83

3.5.2. Evaluation Ex Ante 3.5.2.1.  Legal Assessment In the Belgium system, an evaluation ex ante of the legal quality of laws has been in place since 1946. The government has the duty to consult the Council of State, Legislation Section

76 See CM Radaelli and F de Francesco, Regulatory Quality in Europe (Manchester, Manchester University Press, 2007) 40. 77 CF van den Berg, C Braun and T Steen, ‘Consensus Politics as Administrative Practice’, in H Vollaard, J Beyers and P Dumont (eds), European Integration and Consensus Politics in the Low Countries (Abingdon, Routledge, 2015) 117; M Brans, C Pelgrims and D Hoet, ‘Comparative Observations on Tensions between Professional Policy Advice and Political Control in the Low Countries’ (2006) 72 International Review of Administrative Sciences 57, 61–62. 78 See in more detail P Popelier and J de Jaegere, ‘Evidence-Based Judicial Review of Legislation in Divided States: The Case of Belgium’ (2016) 4 Theory and Practice of Legislation 187, 205–08. 79 R Andeweg, ‘Consociational Democracy’ (2000) 3 Annual Review of Political Science 510. 80 BG Peters, ‘Consociationalism, Corruption and Chocolate: Belgian Exceptionalism’ (2006) 29 West European Politics 1079. 81 In this sense, see E Mangez, ‘Global Knowledge-Based Policy in Fragmented Societies: The Case of Curriculum Reform in French-Speaking Belgium’ (2010) 45 European Journal of Education 61; F Varone, S Jacob and L de Winter, ‘Polity, Politics and Policy Evaluation in Belgium’ (2005) 11 Evaluation Review 253, 261–64. 82 J Beyers, H Vollaard and P Dumont, ‘Introduction: European Integration and Consensus Politics’ in Vollaard, Beyers and Dumont (n 77) 13. 83 For Belgium, see Popelier et al (n 75) 9–10.

Legislation in Belgium  65 for each bill to be submitted to Parliament and for each draft regulatory order.84 It is not obligatory to consult the Council for parliamentary proposals or amendments, but the President of the legislative assembly is required to do so upon request of its members if certain thresholds are met. The Council of State is an independent legal body, with councillors who have a legal background and are appointed for life. The Legislation Section consists of 12 councillors, to which six temporary assessors with specific expertise are added, assisted by auditors. Usually, the Council is asked to give an advisory opinion within 30 days; in urgent cases, this is reduced to five days. The advisory opinion is not binding, but its legal arguments may be used as ammunition to challenge a law before court. In eight per cent of the cases, the Constitutional Court refers to the Council’s advisory opinion; in recent years, this has risen to almost 20 per cent.85 In 17 per cent of these cases, the Constitutional Court finds a violation of the Constitution in line with the advisory opinion of the Council.86 In practice, the government regularly seeks to avoid thorough advice by invoking urgency, submitting long and complicated bills at the same time, inserting provisions into a bill by way of amendments, or by letting Members of Parliament submit the bill in the form of a parliamentary proposal.

3.5.2.2.  Socio-economic Impact Assessment Impact assessments of draft legislation are a more recent innovation. The Flemish Community was the first to implement these in the process in 2005, but in the absence of political support, the quality of the assessments varied. The Office for Legislative Moderation checked the impact assessment forms with a score until 2013. Nowadays, the impact assessment is no longer added in a separate form, but is part of the explanatory memorandum.87 Considering the different purposes – the impact assessment is meant to guide the government throughout the decision-making process to find the best solution, whereas the explanatory memorandum tries to convince the Parliament and the public why the bill should be adopted – there is reason to suspect that the new arrangement will only strengthen the practice of impact assessments as a tick-box exercise. Meanwhile, impact assessment requirements are adopted at the federal level. As mentioned above, this started off in a fragmented way, with three impact assessment tests, focusing on gender, sustainability and administrative burden, which then integrated into a more comprehensive impact assessment.88 This requirement is laid down in a statute,89 but the law provides so many exceptions – for example, if no law requires negotiation in the

84 Article 3 of the Coordinated Laws on the Council of State. 85 J de Jaegere, ‘Verwijzingen in de rechtspraak van het Grondwettelijk Hof naar de ex-ante wetsevaluatie van de Raad van State: wanneer en waarom?’ (2017) 18 Tijdschrift voor Wetgeving 19, 24. 86 ibid 27. 87 See the Witboek Open en Wendbare Overheid (Whitebook Open and Flexible Government), https://www. vlaanderen.be/nl/publicaties/detail/witboek-open-en-wendbare-overheid at 23. 88 P T’Kindt and J van Nieuwenhove, ‘De federale voorafgaande regelgevingsimpactanalyse (RIA) – een wassen neus of een stap vooruit?’ (2014) Tijdschrift voor Wetgeving 168, 174–75. 89 Articles 5–12 of the Law of 15 December 2013 holding various provisions on administrative simplification, Official Gazette 31 December 2013.

66  Patricia Popelier Council of Ministers or if urgency is invoked – that most laws escape this duty.90 In practice, the quality of the impact assessments remains low.91

3.5.3. Evaluation Ex Post Evaluation of legislation ex post is not institutionalised in the Belgian system. Sporadically, evaluation clauses are inserted into laws. Often, they serve as a lubricant for the adoption of a law, without guarantees for a serious evaluation afterwards. Legislative evaluations take place without a structural framework. Political support for a firmer institutionalisation is lacking. At the Flemish level, the ‘legislative cells’ within the administrative departments were given the task of preparing and monitoring ex post evaluations, but this remained a dead letter.92 Since 2018, the Rules of Procedure of the Flemish Parliament have required that in the annual policy letter that each minister in the Flemish government has to present to the Parliament, a list of planned and running evaluations of Flemish laws with an indicative timing is added, as well as a list of evaluations that have been finalised, with a clarification as to how the Flemish government has acted or plans to act on the conclusions.93 The advice to ask for a separate report on ex post evaluations, to avoid the attachment being overlooked in the discussion and to ensure a specific debate focused on this topic, was ignored.94 Nevertheless, the Flemish government promised to discuss with the Flemish Parliament how to give more attention to the discussion of the results of legislative evaluations.95 At the federal level, a parliamentary committee for the evaluation of legislation was established by law in 2007.96 It took 10 years before the law was finally adopted and it fizzled out immediately afterwards. The parliamentary committee consists of 11 Members of the House of Representatives and 11 senators. It has the task of evaluating laws that are selected by the Committee, fed through different channels: judicial and administrative bodies send annual reports to highlight deficiencies in the law which they encountered in the course of their activities, and individuals can submit requests to evaluate a specific law.97 The channelling of these reports is a positive result of the law and has led to omnibus laws that repaired shortcomings in various laws. However, the evaluation activities were put on the backburner. At best, the Committee acted as a conduit, but most of the time, it did not assemble. While the law was adopted in 2007, the Committee was not established before the end of 2011.

90 T’Kindt and van Nieuwenhove (n 88) 175. 91 K Poel, W Marneffe and P van Humbeeck, ‘De federale regelgevingsimpactanalyse: nood aan hervormingen?’ (2016) Tijdschrift voor Wetgeving 196, 206 (formal check) and 208 (content-based check). 92 SERV, Tien denksporen voor ex post decreetsevaluatie in en door het Vlaams Parlement (Brussels, 2015) 24. 93 Article 82.2 of the Rules of Procedure of the Flemish Parliament. 94 Flemish Parliament, Parl.Doc 2017–2018, 1294/1, at 2. 95 Witboek Open en Wendbare Overheid (n 87) 23. 96 Law of 25 April 2007 on the establishment of a Parliamentary Committee charged with the evaluation of legislation, Official Gazette 11 May 2007. For a discussion, see, amongst others, K van Aeken, ‘Een kroon van klatergoud? De wet van 25 april 2007 over de oprichting van een Parlementair Comité belast met de wetsevaluatie’ (2009) Tijdschrift voor Wetgeving 204. 97 On the requests by individuals submitted to the parliamentary committee, see G van der Biesen, ‘Burgers verbeteren wetten’ (2013) Tijdschrift voor Wetgeving 234.

Legislation in Belgium  67 Its first report, for 2011, could only notify the adoption of its internal regulations.98 The Committee was at its height in 2012–14, but then died down again. Its last activity report (of three) refers to 2013–April 2014.99 After the 2014 elections, when the sixth state reform was implemented, the Senate was transformed into a chamber of the sub-states and was stripped of most of its powers. Since then, the role of senators in the Committee is questionable, as they have been left without substantial law-making powers.

3.6.  Teaching Legisprudence In a system where a decent better regulation policy is lacking, that has no staff specialised in the drafting of laws, and consociational decision-making behind closed doors is the order of the day, the teaching of legislative studies on university curriculums is more relevant but at the same time less probable, as there is no need to train students for a career as a legislative drafter. A study on the teaching of legislative studies in law schools in Flanders made clear that the curriculum in 2015–16 was still mainly focused on jurisprudential activities. Two out of five Flemish universities offered an optional course on the study of legislation; the same universities also offered a course on the topic of regulation; and three offered a course on the wider topic of governance and regulation. All in all, the author of this study concluded that legislative studies in Flanders are in the periphery of law curriculums.100 The situation is even worse in the French-speaking Community, where scholars are less concerned with legislative studies than a small circle of Flemish colleagues. All this is rather worrisome, as the students of today are tomorrow’s legislators.

Further Reading I Hachez, Y Cartuyvels, H Dumont, P Gerard, F Ost and M van de Kerckhove (eds), Les sources du droit revisitées, vol 2 (Limal, Anthemis, 2013) K Poel, W Marneffe and P van Humbeeck, ‘De federale regelgevingsimpactanalyse: nood aan hervormingen?’ (2016) Tijdschrift voor Wetgeving 196–216 P Popelier, De wet juridisch bekeken (Bruges, die Keure 2004) P Popelier, P van Humbeeck, A Meuwese and K van Aeken, ‘Transparant consulteren in Vlaanderen: de spanning tussen rationeel wetgevingsmodel en besluitvormingspraktijk’ (2012) Tijdschrift voor Wetgeving 2–12 K van Aeken, ‘Wetgeving, regulering en governance in de curricula van de Vlaamse rechtenopleidingen’ (2015) Tijdschrift voor Wetgeving 278–89

98 Activity Report, Parl.Doc 2011–2012, House of Representatives, 53-1969/1 and Senate, 5-1407/1. 99 Activity Report, Parl.Doc 2013–2014, House of Representatives, 53-1969/3 and Senate, 5-1407/3. 100 K van Aeken, ‘Wetgeving, regulering en governance in de curricula van de Vlaamse rechtenopleidingen’, (2015) Tijdschrift voor Wetgeving 278, 286.

68

4 Legislation in Bulgaria MARTIN BELOV

Context Bulgaria has had four constitutions framing three periods of its constitutional ­development. The 1879 Tarnovo Constitution re-established an independent Bulgarian state in the form of a constitutional monarchy with enhanced elements of parliamentarism. The 1947 and 1971 Soviet-type Constitutions served as a basis for the communist regime. The 1991 Constitution is the current constitution of the Republic of Bulgaria. It provides for a parliamentary republic with elements of semi-presidentialism, a unitary form of territorial distribution of power and for the rule of law, democracy, the separation of powers, the welfare state, political pluralism and sovereignty as main constitutional principles. Bulgarian constitutionalism can be defined as constitutionalism in transition. Although constitutional and legislative reform seem to dominate the Bulgarian constitutional history, there is a culture of endurance and even resistance to ‘official law’ by the stakeholders of the status quo and by large segments of society. Thus, formal modernisation and legislative activism is frequently paralleled by substantial conservatism and societal resilience to reform. Bulgarian legislation is supposed to be rational and well planned. It strives at the establishment of ‘scientifically grounded’ legislation. This is inherited from the late socialist period when a special act – the Law on Normative Acts – was adopted in 1973. This act regulates many issues and aspects of legisprudence. The centrality of the Parliament in the legislative process is in principle safeguarded by the parliamentary character of the state, its adherence to the continental European tradition and the lessons from the past relating to instrumental misuse of legislative power by the monarch (under the 1879 Constitution), the Presidium of the National Assembly (under the 1947 Constitution) and the State Council (under the 1971 Constitution). However, the integration of the Republic of Bulgaria into the Council of Europe and especially in the EU challenges the centrality of the Parliament in legislative process. This is due to both deparliamentarisation and the rising importance and impact of judge-made law by the European Court of Human Rights (ECtHR) and by the Court of Justice of the European Union (CJEU).

70  Martin Belov

4.1.  Hierarchy of Provisions and System of Sources of Law The hierarchy of the sources of law in Bulgaria can be summarised as follows. The 1991 Constitution has supremacy in the Bulgarian legal order, followed by the international treaties which are ratified, published and have entered into force, and the recognised principles of international law. They have primacy over the acts of Parliament, which are superior to the normative acts adopted by the Council of Ministers, the ministers and all other state institutions of the executive power. All national sources of law prevail over the normative acts adopted by the municipal councils. The clarity of this hierarchy on both a conceptual and a pragmatic level is challenged by several issues. What is the status of the EU law in the Bulgarian legal order? Can the courts – the Constitutional Court, the Supreme Administrative Court, the Supreme Court of Cassation and the ordinary courts – adopt sources of law? What is the hierarchical standing of the case law of the ECtHR and the CJEU? These issues will be briefly addressed in the following paragraphs. There is no explicit constitutional provision on the status of the EU law in the Bulgarian legal order. Undoubtedly, the EU law has absolute primacy over domestic legislation. However, it is not clear whether it has primacy over the Bulgarian Constitution. Indeed, the case law of the CJEU and the provisions of the Treaty on European Union (TEU) safeguard the relative primacy of EU law over domestic constitution. It consists in the primacy of the EU law over the domestic constitution with the exception of the elements of the national constitutional identity. However, this ‘external’ perspective is not supported by an ‘internal’ perspective.1 There is no explicit rule of recognition of the validity of EU law in the Bulgarian legal order different from Article 5, paragraph 4 of the Constitution providing for the primacy of international treaties over sub-constitutional domestic legislation. The integration clause in the EU, enshrined in Article 4, paragraph 3 of the Constitution, is rather vague. It provides that ‘the Republic of Bulgaria shall participate in the construction and development of the EU’. There is also some case law of the Constitutional Court (eg, Decision No 3 of 2004 and Decision No 7 of 2018). The Constitutional Court implicitly suggests in the reasoning to these decisions that EU law has the standing of international treaties and thus has primacy over the sub-constitutional legislation, but not over the Constitution. Bulgaria has adopted a moderate monist system for the implementation of international treaties. This means that when ratified, published and entered into force, the international treaties prevail and have immediate and direct effect over domestic sub-constitutional legislation without the need for their subsequent substantial implementation in an act of Parliament. They are ratified by virtue of a formal act of Parliament, whose task is only to introduce them into the Bulgarian legal order. The international treaties of secondary importance (these are the treaties which are not listed in Article 85 of the Constitution) are introduced into the domestic order by virtue of an act of government. They possess its normative standing and are allocated under the acts of Parliament in the normative hierarchy.



1 See

M Belov, The Bulgarian Constitutional Identity (Sofia, Sibi, 2017) (in Bulgarian) 195–200.

Legislation in Bulgaria  71 In 1989–91, Bulgaria started its transition from communism towards democracy. The constitutional foundations of the new social and political order were laid down by virtue of the 1991 Constitution and the country has had rather legalist and legicentric constitutional system and constitutional anthropology. There are several main reasons for this. Bulgaria traditionally belongs to the continental European legal system. Thus, the monopoly of the political institutions to create law paralleled by the reluctance for judge-made law has been undisputed since the establishment of the Bulgarian legal order in 1878–79. During the communist regime, the Parliament was formally declared as an institutional focus of the unity of state power and thus as also being the institutional centre of the legislative function of the state. However, the central role of the Parliament in legislative process and legislative power provided by all Bulgarian constitutions has been challenged or even dismantled by aggressive power competitors. The Bulgarian monarchs used or, more correctly, misused the extraordinary and delegated legislation. This was especially visible during the last years of the reign of Tsar Boris III when the monarch governed the state without a parliament on the basis of decree-laws adopted by him on the responsibility of the ministers. The leaders of the Bulgarian Communist Party, the Presidium of the National Assembly and the State Council under the 1947 and 1971 Constitutions massively bypassed the National Assembly in the course of the adoption of legislation and turned it into a rubberstamper of their legislative will and legislative decisions. Although the National Assembly was supposed to have a full monopoly over state power (legislative function included), it was in fact the Presidium and the State Council which adopted most of the legislation via decrees (‘указ’ (‘ukaz’) in Bulgarian). These are the reasons why the Bulgarian constitutional order established by the 1991 Constitution has had to build upon this constitutional heritage. The most important result is that neither extraordinary nor delegated legislation is provided by the current Bulgarian Constitution. Thus, formally, the Parliament cannot be bypassed by either the President or the government, or by any other actor in adopting primary legislation. Indeed, the Council of Ministers, the ministers, the state agencies and the state commissions may adopt normative acts such as regulations and decrees. However, they are all inferior to the acts of Parliament. Hence, these institutions have the power to adopt secondary legislation which cannot overrule the primary legislation adopted by the National Assembly. The acts of Parliament enjoy primacy over the acts of all other state institutions. They are inferior only to the Constitution, EU law, the general principles of international law and the international treaties which are ratified, published and have entered into force. The administrative justice and especially the control for compliance of the governmental acts in front of the Supreme Administrative Court are supposed to serve as safeguards of the primacy of the acts of Parliament over the acts of government. Formally, the Constitution does not distinguish between different types of acts of Parliament. All of them are defined as an act of Parliament (‘закон’ (‘zakon’) in Bulgarian). However, there are several types of acts of Parliament. They can be distinguished with regard to their task and the more or less complicated procedure for their adoption. In the case of constitutional laws, they may even be adopted by a specific institution – the Grand National Assembly – which is different from the Parliament. The constitutional laws are acts of Parliament for amendment of the Constitution which are adopted via specific and more complicated procedures requiring additional readings and qualified majorities. Such

72  Martin Belov acts may also be adopted by a special covenant – the Grand National Assembly – if they concern matters falling within the scope of the entrenched clause provided by Article 158 of the Constitution. There are two categories of formal acts of Parliament.2 These are the acts of Parliament for ratification of international treaties and the acts of Parliament for the adoption of the state budget. The first category of formal acts of Parliament does not have specific normative content apart from their single article aiming at declaring the validity of the ratified international treaty. The second category of formal acts of Parliament has very specific normative content. These acts of Parliament serve only as a legal framework of the financial plan entrenched in the annual state budget. To sum up, there are actually four categories of acts of Parliament: (1) constitutional laws; (2) ratification of treaty acts; (3) state budget acts; and (4) all other acts. The constitutional laws differ with regard to their substance, procedure and the fact that they are result of the constituent and not of the legislative power. The ratification of treaties acts may differ with regard to the procedure for their enactment. The state budget acts have a specific structure and content. Again, Bulgarian constitutional law does not make an explicit differentiation between these four categories of acts and they are all subsumed under the category ‘act of Parliament’. There are no acts of Parliament for the delegation of primary legislative competences. This is due to the reasons given above. Indeed, the National Assembly may empower the Council of Ministers to adopt secondary legislation, which is inferior to the acts of Parliament, but not primary delegated legislation with the same rank as the acts of Parliament. Moreover, no organic laws, which exist in some European legal orders such as France and Spain, are provided by the contemporary Bulgarian constitutional order. Indeed, there are many acts of Parliament providing for the status of state institutions and for human rights. However, they are neither entitled ‘organic acts’ nor possess any peculiarity in terms of form or procedure. They are adopted by virtue of the same procedure as the ordinary acts of Parliament and are exposed to the same procedure for control of their constitutionality. The theory of Montesquieu of separation of powers and more precisely his concept of courts as ‘bouche de la loi’, that is, as non-political implementers of law adopted predominantly by the Parliament as the institution monopolising the legislative function of the state, is deeply entrenched in Bulgarian constitutional anthropology. Bulgaria traditionally belongs to the continental legal system. Nevertheless, its courts play an important role in adapting the law to the requirements of the socio-legal context, in influencing the application of the law and in influencing the evolution of the Bulgarian legal order. Bulgarian courts cannot adopt judicial precedents. However, they can make rulings which do not constitute a judicial precedent. The Constitutional Court adopts decisions for the abstract interpretation of the Constitution, decisions for the declaration of unconstitutionality of acts of Parliament and international treaties, and decisions for the declaration of contravention of acts of Parliament with international treaties and generally recognised



2 See

R Tashev, General Theory of Law (Sofia, Sibi, 2004) (in Bulgarian) 59–60.

Legislation in Bulgaria  73 principles of international law. These decisions constitute an important source of Bulgarian law. They concern important matters and are at the top of the normative hierarchy. The constitutional provisions have to be applied in the light of these decisions. Hence, the interpretative decisions of the Constitutional Court have implicitly constitutional rank, whereas the decisions for norm control have primacy over the acts of Parliament and the rest of the sources of law, with the exception of the Constitution. The Supreme Administrative Court and the Supreme Court of Cassation adopt interpretative decisions. They aim at the harmonisation of controversial judicial practice on the application of law and at the removal of incorrect judicial practice by the administrative and the ordinary (civil and criminal) courts respectively. These interpretative decisions lead to the de facto evolution of the meaning of legislative provision based on teleological interpretation and the use of analogy. Although the two supreme courts cannot adopt judicial precedents and are in principle bound to the will of the parliamentary legislator, they frequently produce the virtual amendment of legislation, adjusting it to the socio-legal context. Moreover, the judicial practice comprising the decisions of the ordinary or specialised courts is not a direct source of law. However, it may serve as a source of inspiration for the courts, which may adhere to constant jurisprudence in certain matters. Hence, judicial practice is usually defined as an ‘indirect’ source of Bulgarian law.3 Finally, the case law of the ECtHR and the case law of the CJEU are sources of law with increasing importance in the Bulgarian legal order. A representative survey from 20124 shows that the Bulgarian judges and state prosecutors have been rather reluctant to apply the primacy and the direct effect of the case law of the ECtHR and the CJEU over domestic legislation. However, over time, there has been a growing engagement and awareness of the Bulgarian courts with the jurisprudence of these international and supranational courts. This constitutes a unique and novel departure of the Bulgarian legal order from its traditional embeddedness in the continental legal system towards a system where judicial precedent and the case law of the courts play a role. It would be an exaggeration to stipulate that this phenomenon constitutes a legal revolution in the predominantly legicentric tradition of Bulgaria; however, it imposes certain demands for the reorientation of the legal education system from pure positivism towards legal realism. Legal conventions and legal customs barely play any role in the Bulgarian legal order. There are several constitutional traditions which should be mentioned. First, according to the so-called ‘first 100 days of the government’ tradition, the Council of Ministers should not be removed from power during this initial phase of its term of office. The second and third conventions are the representation of the state in the European Council by the President and not by the caretaker prime minister in the event of a parliamentary crisis and the caretaker government and the representative function and competences of the vice president.

3 ibid. 4 See M Belov, ‘The Sources of Law in Action: The Jurisprudence between Positivism and Realism’ (2012) 4 Contemporary Law 29 (in Bulgarian).

74  Martin Belov

4.2.  The Organisation, Procedure and Management of Legislation The procedure for the adoption of acts of Parliament is organised into three phases: the pre-parliamentary, parliamentary and post-parliamentary phases.5 This structure frames the legislative process relating to representative democracy. Bulgarian legislation and more precisely the Direct Participation of the Citizens in State Power and Local Self Government Act (DPCSPLSGA) also allow for the initiating or finalising of the legislative process by virtue of direct and participatory democracy. The representative democratic and the direct democratic procedures for producing legislation and legislative reform in Bulgaria will be analysed separately. The pre-parliamentary phase of the legislative process starts with the first preparatory work for the elaboration of draft legislation. It finishes with the introduction of the draft act of Parliament into the National Assembly and its registration in the public parliamentary register of draft acts of Parliament. There are two different institutions which possess the right to legislative initiative: the Council of Ministers and MPs. In the current Bulgarian constitutional model, each MP may introduce draft acts of Parliament. This is in contrast to the previous three Bulgarian constitutions, which allowed only a quota of MPs to be initiators of legislation. The pre-parliamentary phase of the legislative process initiated by MPs is not legally institutionalised. This means that the Bulgarian Constitution and legislation do not provide for any procedural, formal, temporal or substantial details regarding the way in which the MPs draft their legislative proposals. The MPs may draft the acts of Parliament which they want to propose themselves. They may be aided by official or unofficial advisors or may get the draft act of Parliament written by their political party by a non-governmental organisation (NGO), other organisations, citizens etc. In contrast, the pre-parliamentary phase of the legislative process is institutionalised in the case where the government is the initiator of the draft act of Parliament. The legal framework in this case is provided by the Regulation for the Organisation of the Council of Ministers and its Administration. The draft acts of Parliament elaborated by the Council of Ministers must be included in its legislative programme adopted for each six-month period. Nevertheless, the Council of Ministers may discuss and also approve draft acts of Parliament which are not included in this programme. Hence, their inclusion in this programme is recommended but not really compulsory. Recommendations for the inclusion of draft acts of Parliament in the legislative programme of the Council of Ministers can be made by the members of the government – the prime minister, the deputy prime ministers and the ministers. Other institutions of the executive power provided by law may propose draft acts of Parliament via the deputy prime ministers and the ministers. The recommendation for inclusion of draft acts of Parliament in the legislative programme of the Council of Ministers must contain the aims and the main principles

5 See M Belov, Constitutional Law in Bulgaria (Deventer, Kluwer, 2019) 120–27; E Tanchev and M Belov Comparative Constitutional Law (Sofia, Sibi, 2009) (in Bulgarian) 414; and E Drumeva Constitutional Law (Sofia, Ciela, 2008) (in Bulgarian) 379.

Legislation in Bulgaria  75 of the suggested draft act and a summary of the presumed consequences it will produce, analysis of the necessary amendments in the existing legislation, the terms for the preparation, coordination and approval of the draft act of Parliament, the results of a partial ex ante regulatory impact assessment (RIA) and the opinion of the ‘Modernisation of the Administration’ directorate on this RIA. The draft act of Parliament must be coordinated with the other members of the Council of Ministers. Afterwards, it has to be approved by the Council of Ministers due to the fact that it is the government as a collegiate body and not the single ministers which is competent to introduce draft acts of Parliament into the National Assembly. Moreover, the collegial principle prevails over the resort principle in the organisation and functioning of the Bulgarian government. Hence, the preparation of the draft act of Parliament by the Council of Ministers comprises the elaboration of the first draft, the discussion of the draft with the interested organisations and state institutions, the facultative consultation with experts, the coordination of the draft act with the other members of the government, and the adoption of the final draft act of Parliament if there have been many important suggestions for amendment and improvement. The members of the government enjoy the legal support of the Ministry of Justice and the ‘Legal Issues’ directorate at the Council of Ministers when drafting legislative initiatives. The draft acts of Parliament are introduced either by MPs or the government in the National Assembly. They are addressed to the Chairman of the National Assembly and are registered in the public parliamentary register of draft acts of Parliament. This is the beginning of the parliamentary phase of the legislative process. The draft acts of Parliament must be included in the legislative programme of the National Assembly. A precondition for the discussion and voting on the draft acts of Parliament by the Plenum of the National Assembly is their inclusion in the working programme of the Parliament. All draft acts of Parliament must be supplemented with motives and, if they are introduced by the government, also with ex ante RIA. The motives should contain an assessment of the expected consequences of the application of the proposed act of Parliament. If the draft act of Parliament is proposed by the government, it should also be accompanied by: an assessment of its compliance with EU law (in case this is an act which aims at the introduction of EU law or at the harmonisation of Bulgarian law with EU law); a document demonstrating that all compulsory opinions of state institutions have been taken into account; and an assessment of the compliance of the proposed act with the European Convention on Human Rights and with the case law of the European Court of Human Rights. The Chairman or the National Assembly distributes the draft acts of Parliament among the standing parliamentary committees. In the case of complex and multi-dimensional draft acts of Parliament, these can be distributed to several standing parliamentary committees and one of them is determined by the Chairman of the National Assembly to be the leading committee. The leading committee is determined in the case of an interdisciplinary draft act of Parliament which requires the involvement of several standing parliamentary committees. The leading committee prepares the report on the draft act of Parliament for the first and second reading and coordinates the work of the other committees. The parliamentary phase of the legislative process in Bulgaria is structured into two readings. The first reading is devoted to the adoption or rejection of the draft acts of Parliament in general and on matters of principle. It concerns the philosophy, the general concept and

76  Martin Belov the principles of the draft acts of Parliament. The second reading concerns the approval, modification or rejection of the details of the draft acts of Parliament. During the second reading, the discussion and voting is accomplished for each structural part of the draft act of Parliament – the chapters, the sections and the distinct articles and paragraphs. The MPs may suggest amendments to the draft act of Parliament. The first and second plenary readings must be accomplished in two separate parliamentary sittings. They can be done in one and the same parliamentary sitting only as a matter of exception and on the basis of an explicit decision of the National Assembly. Usually this is the case with acts of Parliament for the ratification of international treaties because in this case, the Parliament may only approve and reject them, but cannot introduce any amendments into the text of the treaty. The Parliament adopts the acts of Parliament by virtue of a majority of the MPs who are present at the sitting. The quorum for a parliamentary sitting is more than the half of the general number of MPs. This means that the necessary majority for the adoption of acts of Parliament may vary between 61 MPs in the even that only 121 MPs are present and assure the quorum and 121 MPs if all 240 MPs are present at the parliamentary sitting. The voting is personal and open. Voting on behalf of other MPs is prohibited. Voting is performed via an electronic voting system and the MPs vote with their personal electronic cards. The voting may be secret only if there is a special decision of the Parliament for such a procedure. The plenary session readings are preceded by readings in the standing parliamentary committees. Thus, the first reading in the parliamentary committee precedes the first reading in the plenary session followed by the second reading in the parliamentary committee. The final stage of the parliamentary phase of the legislative process is the second reading in the plenary session, when the draft act of Parliament is finally approved or rejected. There are several opinions which the parliamentary committee or the leading parliamentary committee (in the event of several committees working on the draft acts of Parliament) must acquire. If the draft act of Parliament is introduced by an MP, the opinion of the government or of the relevant minister with responsibility for the area regulated by the draft act must also be submitted to the Parliament. The non-submission of such an opinion does not prevent the further work on the draft act of Parliament introduced by the MP. In the case of draft acts of Parliament relating to judiciary, labour and social assurance relations and the integration of disabled people, the opinions of the Supreme Judicial Council, the National Council for Tripartite Collaboration and the National Council for Integration of the Disabled People are required accordingly. The non-deposition of such opinions does not prevent the debates and voting on the draft act of Parliament. There might be several draft acts of Parliament regulating the same subject matter introduced in parallel in the National Assembly. The Parliament may approve some or even all of them during the first reading. Afterwards, a common draft act of Parliament must be elaborated by the (leading) standing committee with the participation of the initiators that have introduced these draft acts of Parliament. This joint draft act of Parliament is introduced by the (leading) standing committee for second reading in the Plenum of the National Assembly. A draft act of Parliament which has been rejected on the first reading may be introduced again in the Parliament only after significant amendments to its fundamental concept and principles and only after the passing of three months after its rejection. These requirements are not applicable to draft acts of Parliament which aim at the harmonisation of Bulgarian

Legislation in Bulgaria  77 law with EU law. The initiator of the draft act of Parliament may withdraw it only until the beginning of the vote in the first reading. Afterwards, according to the Regulation for the Organisation and Activity of the National Assembly, it can be withdrawn only with the consent of the National Assembly. The draft act of Parliament is officially certified as adopted by virtue of the signature of the Chairman of the National Assembly. Afterwards the Chairman of the National Assembly sends the adopted act of Parliament for promulgation and publication to the President of the Republic. This act marks the end of the parliamentary phase and the beginning of the post-parliamentary phase of the legislative process. All normative acts must be published in the official journal of the state – the State Gazette. They usually enter into force three days after their publication in the State Gazette. However, the Parliament may provide for different vacatio legis. It may even provide for the retroactivity of the adopted legislation. Legal provisions which establish or increase sanctions cannot have retroactive force. The retroactive force of such provisions is prohibited by Article 14 of the Law on Normative Acts. The President of the Republic has two options after he receives the act of Parliament: first, he can approve the act of Parliament, promulgate it and publish it in the State Gazette within a 14-day promulgation term; and, second, he can reject the act of Parliament by imposing a veto on it. The Bulgarian President has a moderately weak veto. This means that he may return the act of Parliament for reconsideration in the National Assembly, but cannot permanently prevent its entry into force. Hence, the president has a suspensive and not an absolute veto, which is in line with the hybrid parliamentary character of the republic. The presidential suspensive veto is moderately weak because if the National Assembly rejects the veto by adopting the returned act of Parliament anew by virtue of an absolute majority of all MPs (121 out of 240 in the Bulgarian case), the president must promulgate and publish it. In fact, the veto of the Bulgarian president is used much more as an instrument for signalling some problems with the act of Parliament to society rather than as a tool to block the legislative policy of the National Assembly and, in fact, the Council of Ministers. Actually, most of the presidential vetoes have been easily overcome by the Parliament due to the majoritarian parliamentarism in Bulgaria, resulting in clear governmental majorities in the National Assembly. Despite the predominant belief that the president must be a ‘neutral power’ and non-political arbiter and moderator of political life in Bulgaria,6 a semipresidential dynamic in the veto power of the president is very visible. In other words, the frequency and importance of the presidential vetoes radically increases when the president is supported by the political party which is in opposition in the Parliament. Hence, the presidential veto is an important element of party politics and a key component of the system for party-political checks and balances enshrined in the Bulgarian Constitution. It should be mentioned that the president may impose his veto on different grounds. He can veto the act of Parliament due to concerns related to its contravention to superior law – the Constitution, EU law, the international treaties that have been ratified, published and

6 See G Bliznashki, Parliamentary Law (Sofia, ‘St Kliment Ohridski’ University Press, 2015) (in Bulgarian) 120; and G Bliznashki, The Parliamentary Government in Bulgaria (Sofia, ‘St Kliment Ohridski’ University Press, 2009) (in Bulgarian) 59 ff.

78  Martin Belov have entered into force or the generally recognised principles of international law. However, the president may also impose a veto if he believes that the adopted act of Parliament is inefficient, unjust or simply because he disagrees with the policies provided by it. The veto may concern the whole act of Parliament or parts of it. In both cases, the act of Parliament is returned as a whole for reconsideration in the National Assembly. The presidential decree for the imposition of a veto must be supplied with motives. It is also published in the State Gazette. Finally, the direct democratic engagement with the legislative process will be briefly outlined. The 1991 Constitution is rather unclear and silent when it comes to direct democracy. Indeed, it provides for the principle of popular sovereignty as well as for a system of political rights allowing citizens to participate in forms of deliberative, participatory, direct and representative democracy. However, it does not provide for any concrete form of direct democracy apart from elections. These forms are provided by an act of Parliament which was adopted in 2009: the DPCSPLSGA. The DPCSPLSGA provides for three forms of direct engagement of citizens with the legislative process. These are: the citizens’ legislative initiative; the people’s legislative initiative; and the legislative referendum. The citizens’ legislative initiative is a form of participatory democracy due to the fact that the citizens can propose legislation to the National Assembly without being able to impose it on the Parliament or to inevitably provoke a referendum. Hence, in the case of the citizens’ legislative initiative, the Parliament must take it into consideration, but is obliged neither to transform the proposal into an act of Parliament nor to summon a referendum on the proposed issue. The people’s legislative initiative is a qualified version of the citizens’ legislative initiative. It is activated when a greater number of citizens approach the Parliament with a demand for a national legislative referendum. The people’s legislative initiative obliges the National Assembly to convoke a legislative referendum. The legislative referendum is facultative (optional). This means that it may be accomplished on the initiative of 200,000 citizens, one-fifth of MPs, one-fifth of the municipal councils, the President and the Council of Ministers. If more than 400,000 citizens approach the National Assembly with the demand for a national legislative referendum, this constitutes a national people’s legislative initiative. In this case, the National Assembly is obliged to take a decision on the subject of a national legislative referendum. The national legislative referendum is not a necessary requirement for the adoption of any type of act of Parliament. Hence, there is no compulsory referendum in Bulgaria. Moreover, the legislative referendum may be imperative (binding) or consultative. It is binding only if a majority of the voters who have casted their vote is achieved in favour of the proposal in combination with a very high electoral turnout amounting to the number of the voters who have actually voted in the last parliamentary elections. If the voter turnout is above 20 per cent of the number of the voters in the last parliamentary elections and the majority of voters have voted in favour of the proposal, the Parliament is still not obliged to adopt the law, but has to have a parliamentary discussion on it and take it into consideration. In any case, this does not create any real obligation for the Parliament to adopt corresponding legislation. These rather demanding requirements – especially that related to voter turnout – ­actually renders the accomplishment of successful legislative referenda almost impossible. There have only been six national referenda in Bulgarian history. The first three were not

Legislation in Bulgaria  79 legislative referenda. Moreover, these first three referenda, accomplished under the Tarnovo and the 1947 and 1971 Constitutions, were unconstitutional. The remaining three national referenda took place after the adoption of the 1991 Constitution and all of them were accomplished after 2009, when the DPCSPLSGA entered into force. The first, held in 2013, related to the development of nuclear energy in Bulgaria. The second was held in 2015 and concerned the introduction of distance voting in Bulgarian electoral law. The third was held in 2016. It was more complex because citizens were asked to vote on three issues: the replacement of the PR electoral system for the National Assembly with a majority vote with an absolute majority in two rounds, the introduction of a compulsory vote for elections and referenda and the radical diminishing of state subsidies for political parties. In fact, the second and the third referenda were facultative and compulsory legislative referenda. None of them was successful. There is also a list of issues on which the holding of legislative referendum is prohibited. Among the prohibited issues are the size of taxation, labour and social security payments, the state budget and the denouncement of international treaties. Moreover, the DPCSPLSGA also prohibits the adoption of acts of Parliament and codes which entirely regulate the subject matter in some spheres of social relations.

4.3.  The Development of Legal Policy and Legal Intent (Substantial Legisprudence) There are several main reasons for legislative reform. The implementation of international law and EU directives and the overall harmonisation of Bulgarian law with EU law have assumed increased importance during the last few decades and especially during the pre- and post-EU accession period. In fact, the substantial harmonisation of Bulgarian law with the acquis communautaire of the EU has been the key determinant of substantial legisprudence – both in terms of quantity and quality – since the beginning of the twentyfirst century. Another important factor for legislative reform has been the overcoming of the communist heritage and the replacement of old legislation adopted before the entry into force of the current Constitution in 1991 with new legislation corresponding to the standards of democracy, the rule of law and capitalism. Consequently, legal modernisation has been the leading reason for legislative reform, especially in the first decades of transition from communism to capitalism and from authoritarianism to the rule of law and democracy. The emergence of new social phenomena and relations relating to, eg, technological innovation or the reassessment of traditional pillars of social, economic and political life in the light of information, IT, mobility and scientific revolution, is the third main trigger for legislative reform. Here we should also include the legislative responses to the threats posed by the world risk society.7 Last but not least, each legal order (the Bulgarian one included) is a target of permanent pressure for reform. Such pressure is produced by the need for the reconsideration and modernisation of legislative provisions, lobbyism, civic activism etc.



7 U

Beck, Risk Society: Towards a New Modernity (Thousand Oaks, CA, Sage Publications, 1992) 1–272.

80  Martin Belov The legal institutionalisation of substantive legisprudence concerns to a great extent the rules and procedures for the transformation of legislative intent and legislative reform pressures into valid legislation. In particular, the pre-parliamentary phase of the ­legislative process directly affects substantial legisprudence. Here substantial legisprudence is inevitably intertwined with procedural and formal legisprudence. Bulgarian legislation provides for the relatively detailed institutionalisation of substantial legisprudence. This is predominantly true for the pre-parliamentary phase of the legislative process in the case of governmental legislative initiative, but is also relevant for its parliamentary phase. These issues have been thoroughly analysed in the previous section of this chapter. As such, I will refrain from going over these points again here due to space constraints. Instead, I will simply emphasise the main channels for influencing the substantial legisprudence by citizens and NGOs. Both general and specific interests can find their way into legisprudence and can have an impact on the legislative process by virtue of the following patterns. First, the draft legislation is published on the internet for public deliberation and consultation. Hence, the interested parties may influence it at a very early stage – during the public consultations related to draft acts of Parliament and other normative acts. Second, they may use the channels of party politics and try to influence the legislative process and the legislative outcome via MPs. Third, the discussion of draft acts of Parliament in the standing parliamentary committees are open to the public (with some exceptions typically related to national security). Fourth, certain official representative organisations of important interests in civil society have the right to present an opinion on the draft legislation. This is especially true for trade unions, employers’ organisations and organisations representing disabled people. Several Bulgarian Parliaments have also created a Legislative Council. This is a consultative body including leading legal experts – predominantly members of academia. The Legislative Council may be approached with a demand to give advisory opinions on drafts for acts of Parliament. There have been cases when the opinion of the Legislative Council has been taken into account and was even decisive. However, the Legislative Council of the current 44th National Assembly had very few opportunities to give its opinion on the legislative activity of the Parliament. This limited recourse to the expertise of the Legislative Council has provoked its chairman Professor Ognyan Gerdjikov to send a request to the Chairman of the National Assembly for its dissolution.

4.4.  Techniques of Drafting and Publishing of Legislation: Requirements for Draft Acts (Formal Legisprudence) The rules related to formal legisprudence are extensively codified by the Law on Normative Acts, although other acts such as the Regulation for the Organisation and Activity of the National Assembly and the Regulation for the Organisation of the Council of Ministers and its Administration also contain some relevant provisions. The Law on Normative Acts defines a normative act as one which contains general rules of behaviour which are applied to unlimited number of subjects of law, which has reiterated application and is adopted by a competent state institution. Apart from this general definition of the normative act, the Law on Normative Acts also provides for definitions of the different types of normative

Legislation in Bulgaria  81 acts – the code, the act of Parliament, the governmental regulation, the governmental decree, the governmental instruction, the decrees and regulations of the ministers and other state institutions, and institutions for local self-government. Article 9 of the Law on Normative Acts requires that the provisions of the normative acts must be formulated briefly, precisely, clearly and in the commonly used Bulgarian language. Deviations from the commonly used Bulgarian language are allowed only when they are imposed by the specific features of the subject matter of the act. Foreign words and expressions can be used only if they have become a permanent element of the Bulgarian language or when they cannot be replaced with Bulgarian ones. At first glance, it seems a bit awkward what is meant under ‘commonly used Bulgarian language’. There are no different official Bulgarian languages. Obviously, the legislator will not use dialects. In fact, this provision aims at limiting the excessive use of terminology and in particular tries to diminish the use of foreign words and foreign linguistic borrowings. Consequently, this provision is supposed to have a protective function for the Bulgarian language. It is doubtful whether this function can be served well, since the borrowing of foreign language terms frequently enriches the language and is inevitable in the context of increasing EU integration and globalisation, where the implementation of EU directives and international treaties fosters the adoption of foreign terminology. This issue was realised by the legislator in 2007 when an amendment of Article 9 of the Law on Normative Acts was introduced. According to this amendment, as a matter of exception, in the case of the implementation of EU law or international treaties concluded by the EU, the normative acts or their appendixes may contain foreign-language terminology relating to codes, indexes, classifications, official names of institutions and the acts adopted by them if they are well established in the international practice and if this is due to reasons of clarity and preciseness. Words and expressions which have an established legal meaning must be used in the same sense in all normative acts. In the event that a deviation from this meaning is necessary, these words or expressions must be defined in the additional provisions of the normative act. According to Article 10 of the Law on Normative Acts, the social relations which have factual commonality and fall into the same sphere of social life must be regulated by only one act on the respective level of the normative hierarchy – one act of Parliament, one governmental regulation etc. Moreover, social relations which relate to the regulative sphere of an already adopted normative act must be regulated by it and not via new normative act on the respective level of the normative hierarchy. According to Article 11 of the Law on Normative Acts, the adoption of new normative act which replaces an existing normative act or acts is allowed only if the novelties which it brings with it are numerous and important. The adoption of a special normative act deviating from the general provision of the subject matter by an existing normative act is permitted only if this is required by the nature of the regulated specific social relations. Moreover, Article 11, paragraph 3 of the Law on Normative Acts provides for safeguards for the clarity of legislative reform. It requires that the amendments in the normative acts must be explicit and that these must be accomplished only via an explicit provision of the amending normative act. Implicit amendments which do not define the concrete legislative provisions which will be amended or abolished are not permitted.

82  Martin Belov There are also safeguards for the coherence between acts of Parliament and normative acts for their implementation. According to Article 12 of the Law on Normative Acts, the normative acts for implementation of acts of Parliament must regulate only those social relations for which they are explicitly provided. Moreover, according to Article 13 of the Law on Normative Acts, the normative act for the implementation of an act of Parliament is automatically abolished in the event of the abolition of the respective act of Parliament. If the act of Parliament is partially abolished, the implementing normative act is also partially abolished in accordance with the scope of the legislative amendment. The new act of Parliament which fully or partially abolishes the old one can explicitly provide for the preservation of the validity of the implementing normative act as a whole or of some of its parts, but only if its provisions are compatible with the new legislation. The structure of the normative acts and the formulation of their provisions – the legislative wording – must be in full compliance with the decree for implementation of the Law on Normative Acts. In fact, this decree was adopted in 1974 by the State Council under the old communist 1971 Constitution, but is still valid, although it has been subject to extensive amendments. All normative acts must be entitled. The title must indicate the type of act and its main subject matter of regulation. The decrees of the Council of Ministers and the regulations and instructions have also numbers. Normative acts are divided into articles. Additional and transitory and concluding provisions are divided into paragraphs. The articles may be sub-divided into paragraphs, the paragraphs into points and the points into letters. The articles are grouped into sections, parts and chapters in accordance with their subject matter. However, these sub-divisions are not compulsory; hence, the normative act may contain some or none of them. The only compulsory structuring of the normative acts is into articles and paragraphs. Each article of the codes has a title which expresses its main content. The titling of articles of acts of Parliament is only optional. Usually acts of Parliament do not provide titles of their articles. The general provisions of the normative act must precede the special provisions. In the event that there are many special provisions with different objects of regulation, they should be subsequently ordered as follows: first, provisions for institutional organisation; second, substantial provisions; third, procedural provisions; and, fourth, provisions containing sanctions. Lists, tables, tariffs, schemes, formulas etc must be part of appendixes to the normative act, except if it is absolutely necessary to be included as part of some provisions of the act. Preambles may only be part of normative acts with special importance, eg, the Constitution and the codes.8 Normative acts may also contain transitory and concluding provisions as well as additional provisions. Transitory and concluding provisions and additional provisions are separate structural parts of the normative act. Additional provisions are published as a structural part at the end of the normative act. They comprise: rules which do not concern the main subject matter of the act but must be included in it; provisions which concern many structural parts of the act but cannot be included in the general principles of the act due to the specifics of their character and scope

8 See M Belov, ‘The Preamble of the Constitution in the European Constitutionalism’ (2013) 20 Revista General de Derecho Romano, Iustel.

Legislation in Bulgaria  83 of application; an explanation of words and expressions which are used frequently in the act; translations of terms in the Bulgarian language; provisions which point at EU directives which are introduced by virtue of this act or at other acts of the EU which are implemented or taken into account via the act. The transitory and concluding provisions are published as a structural part at the end of the normative act after the additional provisions. The numbering of their paragraphs follows the numbering of the paragraphs included in the additional provisions. The transitory provisions serve for the prolongation of the validity of provisions contained in the normative act which has been abolished by the normative act of which they are part or for the settlement of their application to pending legal relations which have emerged, but have not been finalised during the period of validity of the abolished act. The concluding provisions include the rules which grant for the retroactivity of the normative act, the rules which postpone its validity or the rules which limit the application of the normative act to specific parts of the territory of the state.

4.5.  Monitoring and Evaluation of the Law in View of its Quality: Ex Ante and Ex Post RIA and the Impact of European Legislation Regulatory impact assessment (RIA) was introduced into the Bulgarian legal system in 2016. This was done by virtue of the introduction of a special Chapter II in the Law on Normative Acts. Before 2016, elements of RIA were provided by different normative acts.9 RIA contains an assessment of the relationship between the aims set out by the act of Parliament and the results which are expected (in the case of ex ante RIA) or actually achieved (in the case of ex post RIA) by it. The institution with legislative initiative has to conduct RIA when such an obligation is required by an act of Parliament. The Law on Normative Acts does not provide for special hypotheses of facultative RIA. However, facultative RIA can be accomplished whenever the drafter of an act of Parliament prefers to have the information stemming from the RIA at its disposal. The Law on Normative Acts provides for several types of compulsory RIA. First, it distinguishes between ex ante RIA, which is accomplished before the act is proposed to the Parliament, and ex post RIA, which aims at controlling the efficacy, effectiveness and efficiency of the law and its proper implementation. There is no compulsory concurrent RIA accomplished during the drafting process. The lack of such an explicitly provided requirement for concurrent RIA does not impede the Parliament or the other institutions, which can adopt normative acts in order to accomplish a concurrent RIA. Second, the Law on Normative Acts differentiates between total and partial ex ante RIA. Partial ex ante RIA is always accomplished when a normative act is adopted. This means that not only the acts of Parliament, but also the normative acts of the government, the ministers, the state agencies and state committees, and the municipal councils must be adopted

9 See Regulative Impact Assessment. Conception for its Practical Introduction in the Legislative Process of the National Assembly and the Council of Ministers, Sofia, 2015, 1–58.

84  Martin Belov and implemented on the basis of at least partial ex ante RIA. Hence, the compulsory partial ex ante RIA is a necessary element of the norm-setting process in general and the legislative process in particular. Total ex ante RIA is an exception. It is only accomplished in two cases: when new acts of Parliament or codes are adopted and when the partial ex ante RIA has proven that serious consequences can be expected as a result of the adoption of an act for the amendment of already existing act of Parliament, and thus a total ex ante RIA is necessary in order to allow for better evaluation of the overall result of the legislative reform. Moreover, the Law on Normative Acts allows for the accomplishment of total ex ante RIA apart from the two already mentioned cases at the discretion of the institution which is drafting the legislative proposal. This is the case for facultative total ex ante RIA. The methodology for the accomplishment of RIA of draft acts of Parliament introduced by MPs is determined by a decision of the National Assembly. The methodology for the accomplishment of RIA of draft acts of Parliament elaborated and introduced by the government is provided by the Council of Ministers by virtue of a governmental decree. Ex post RIA is accomplished by the institution responsible for the implementation of the normative act. Ex post RIA of new acts of Parliament, codes or normative acts of the government must be accomplished within the first five years after the entering of the act into force. The institution responsible for the implementation of the normative act may determine a shorter term for the accomplishment of RIA. The results of ex post RIA must be published on the website of the institution which has accomplished it and on the Public Consultations Portal.10

4.6.  Legislative Drafting and Training the Lawyers Drafting Legislation There are few specific courses or other forms of training for legislative drafting provided by the state institutions. The Institute for Public Administration, which is a state institution and part of the executive power, offers short courses on different issues of legisprudence for state officials, including on RIA, policy drafting and legal regulation. Moreover, the ‘Students’ Programme for Legislative Research’11 has been offered at different points during the last decades since the fall of communism. However, this programme does not really aim at improving the quality of legislation or the provision of further education to MPs, legislative consultants of the MPs or administrative staff, or the Parliament. It is addressed at law students (and sometimes also students on other programmes such as international relations). They are supposed to prepare comparative legislative research on different topics requested by the MPs. Actually, the education related to legislation, legislative drafting and legisprudence is concentrated in universities. Bulgarian universities provide different courses relating to these issues: legal technique, parliamentary law, constitutional and comparative constitutional law etc.

10 www.strategy.bg/Default.aspx?lang=bg-BG. 11 See

http://students.parliament.bg.

Legislation in Bulgaria  85

Further Reading M Belov, Constitutional Law in Bulgaria (Deventer, Kluwer, 2019) E Tanchev and M Belov, ‘The Republic of Bulgaria’ in C Kortmann, J Fleuren and W Voermans (eds) Constitutional Law of 2 EU Member States: Bulgaria and Romania. The 2007 Enlargement (Deventer, Kluwer, 2008) 3–103 E Tanchev and M Belov, ‘The Governmental System of the Republic of Bulgaria’ in N Chronovski, J Petretei and T Drinoczi (eds), Governmental Systems of Central and Eastern European States (Warsaw, Kluwer Polska, 2011) 74–117 E Tanchev and M Belov, ‘The Republic of Bulgaria’ in L Besselink, P Bovend’Eert, H Broeksteeg, R de Lange and W Voermans (eds), Constitutional Law of the EU Member States (Deventer, Kluwer, 2014)

86

5 Legislation in Croatia IVAN KOPRIĆ

Context Croatia is a country imbued with history. It began its democratic transition, economic and societal transformation, and the process of re-establishing its independence after the first multi-party elections in the spring of 1990. Precipitated historical layers of conceptual governance, institutional and legal influences converged to the current system ingrained on the first (‘Christmas’) Constitution adopted at the end of 1990. The process of harmonisation with the standards of the Council of Europe and the EU added a significant new stratum of concepts and institutions. Legislative reform is one of the prominent yet only moderately successful Europeanisation-type governance changes in Croatia.

5.1.  The Constitutional and Institutional Framework 5.1.1.  Central State and Local Governments Croatia is ‘a unitary and indivisible democratic welfare State’1 with two devolved governance levels: the medium (second) and local (first) levels.2 Although the Constitution defines counties as the ‘units of territorial (regional) selfgovernment’, their role is far less important than the role of regions in regionally decentralised countries. Rather, it is similar to the role of supplementary second-tier local governments. Croatian counties (20, županije) therefore have more in common with German counties (Landkreise) than with Italian regioni, Spanish comunidades autónomas or French régions, because of their small size (about 175,000 inhabitants on average). Their financial capacity is rather weak and dependent on the central government as the state budget provides for about 60 per cent of their finances through centrally managed grants.

1 Article 1 of the Constitution of the Republic of Croatia, Narodne novine (Official Gazette, NN) Nos 56/90, 135/97, 08/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10 and 05/14. 2 The Council of Europe (CoE) in its reports uses the terms ‘first’ and ‘second’ level, while the Croatian Constitution uses the term ‘local self-government’ for the ‘first’ level and ‘territorial (regional) self-government’ for the ‘second’ level. See the last CoE report on local and regional democracy in Croatia adopted in 2016 at https://rm.coe.int/native/0900001680718dbe.

88  Ivan Koprić Local governance is based on a network of 428 municipalities and 128 towns, 17 of which have a special status of large town. Almost 51 per cent of local governments have fewer than 3,000 inhabitants and an additional 20 per cent have between 3,000 and 5,000 inhabitants. Despite the constitutionally guaranteed scope of local governments and counties, their role in performing public tasks is very limited. The list of public tasks performed by local governments deviates from the constitutional provisions.3 Moreover, local governments lack effective legal instruments to influence and challenge the government’s legislative policy. As a result, many public powers overlap, are attributed to counties, central bodies, funds, agencies and institutions, or are granted to civil society and private organisations. The Croatian capital, the city of Zagreb (about 790,000 inhabitants), has a special status, with the powers of both a town and a county, and – unlike other local governments – a significant role in performing administrative tasks delegated from the national level. According to the Constitution, the right to local and territorial (regional) selfgovernment ‘shall be exercised through local and/or regional representative bodies, composed of members elected in free elections by secret ballot on the basis of direct, equal and general suffrage’ (Article 128, paragraph 2). Powers to adopt local statutes and by-laws are granted to the county assemblies, and town and municipal councils as representative bodies.4 Since 2009, the key role in local policy-making has belonged to directly elected executive functionaries. Although the Croatian Constitution stipulates that central government is limited by the constitutionally guaranteed right to local and regional self-government (Article 4, paragraph 1) and recognises the principle of subsidiarity, Croatia is a centralised country. The share of local government employment (counties and the City of Zagreb included) of only 13.8 per cent in total government employment in Croatia is but one of the indicators of centralisation. Institutional development after 1990 has clearly stressed the powers of central government. The reasons for such a development were the need for the newly independent state to establish many institutions and bodies at the beginning of 1990 and to manage huge problems and losses caused by the Homeland War (1991–95) and post-war reconstruction. Decentralisation only came to be high on the agenda at the beginning of the 2000s, but this attempt was not successful, since the long and exhausting process of EU accession (2001–13) and the need for improving the EU funds absorption reinvigorated centralisation.5

3 For more on this, see I Koprić, ‘Problemi s decentralizacijom ovlasti – između ustavnih načela i stvarnosti’ (2014) 14(1) Croatian and Comparative Public Administration 133. In addition, the 2016 CoE Report (Council of Europe, Congress of Local and Regional Authorities, Monitoring Report on Croatia, 31st Session CG31(2016)11 final, 20 October 2016, fn 2, 17–22) mentions, inter alia, ‘asymmetric allocation of powers according to the size of local governments’, which is not in line with the Croatian Constitution, and ‘incomplete decentralisation’, which indicates that local powers listed by the Constitution have not been taken over by many local governments. 4 Local and Territorial (Regional) Self-Government Act, NN Nos 33/01, 60/01, 129/05, 109/07, 125/08, 36/09, 36/09, 150/11, 144/12, 19/13, 137/15, 123/17. cf also the previous Local Self-Government and Administration Act, NN Nos 90/92, 94/93, 117/93, 5/97, 17/99, 128/99, 51/00, 105/00. 5 For a basic account of the complex Croatian history, see I Koprić, ‘Reform of the Croatian Public Administration: Between Patchy Europeanization and Bumpy Modernization’ in P Kovač and M Bileišis (eds), Public Administration Reforms in New Eastern European Union Member States: Post Accession Dimensions of Public Governance Convergence and Divergence (Ljubljana, Faculty of Administration, University of Ljubljana & Mykolas Romeris University, 2017) 342–46.

Legislation in Croatia  89 Protection of national minorities (cf Article 15 of the Croatian Constitution) is reflected in their special representation in the Parliament and local representative bodies. They elect eight Members of Parliament, and their representatives and councils at the local and county levels. The roles of the minority institutions are representation, coordination, consultation and policy advice in matters relating to national minorities, including the preparation of laws and by-laws at the national and local levels.6

5.1.2.  The Legislature, Executive and Judiciary The Croatian Parliament (Hrvatski sabor) is a unicameral representative body that consists of no fewer than 100 and no more than 160 members elected on the basis of direct, universal and equal suffrage by secret ballot (Article 71). Currently there are 151 MPs elected according to a system of proportional representation with a preferential vote. In each of 10 electoral units, voters elect 14 MPs. Electoral units do not reflect the territorial organisation of local governments. Three additional members are elected by voters of Croatian nationality who do not live in Croatia (the diaspora). Finally, national minorities vote for eight MPs. MPs cannot be recalled during the four-year mandate. The Croatian Parliament may be dissolved in order to call early elections if the majority of its members so decide (Article 77). Constitutionally, the legislative power may not be divided and is held fully by the Croatian Parliament. The President of the Republic is directly elected for a five-year term of office and ‘shall ensure the regular and balanced functioning and stability of government’ (Article 94, paragraph 2 of the Constitution). The President and the government ‘co-operate in the formulation and implementation of foreign policy’ (Article 99, paragraph 1). He or she is ‘the commander-in-chief of the armed forces of the Republic of Croatia’ and is ‘responsible for the defence of the independence and territorial integrity of the Republic of Croatia’ (Articles 100, paragraph 1 and 94, paragraph 3). The constitutional powers of the President are concentrated in the fields of foreign policy, defence and security. The President ‘may propose to the Government to hold a session and consider specific issues’ and ‘may attend any session of the Government and participate in deliberations’ (Article 102), but presidents have tended not to use this power since 2000. Despite the President’s constitutional powers, the real political power lies mainly with the government, reversing the position prior to a significant constitutional change from a semi-presidential to a parliamentary system at the beginning of the 2000s. The principle of separation of powers encompasses forms of mutual cooperation and reciprocal checks and balances as stipulated by the Constitution and law (Article 4, paragraph 2 of the Constitution). The government is appointed by the Parliament, by the majority of all MPs. The ministers and other members of the executive cannot at the same time be Members of Parliament (the incompatibility principle). The government can resign of its own free will. Normally, it is accountable to the Parliament and a no confidence vote, by the majority of all MPs, leads to the resignation of the government. However, in certain cases and under 6 The Special minority self-government system consists of 441 minority representatives, minority councils, and associations of minority councils. Cf https://registri.uprava.hr/#!vijeca-manjina/wQUBAAAAAAAAAAAAADQAAA (accessed on 20 July 2019).

90  Ivan Koprić certain conditions, the government can propose and take political responsibility for the dissolution of Parliament. The dissolution decision is issued by the President of the Republic and countersigned by the Prime Minister. The average term of office of the previous 13 governments was 712 days, i.e. slightly less than two years, which indicates a relative level of governmental instability. There are two dominant political blocs in Croatia, with a much more successful right-wing bloc. The Croatian Democratic Community (CDC) was the dominant party in all 14 governments except three (two in 2000–03 and one in 2011–16). In some governments, the CDC accepted several minor political parties to pre-election or post-election coalitions. The Social Democratic Party (SDP) led three governments (in 2000–03 and in 2011–16), all three elected in the Parliament by broad political coalitions of the SDP with several minor political parties. The real legislative preparatory capacity lies at the level of ministries, with a strong influence and coordination being provided by the Prime Minister and his or her office in urgent cases and for the most important issues. According to the State Administration Act of 2011, the Croatian state administration consists of two levels and four types of state administrative bodies. At the central level, the Act lists 20 ministries, five ‘central state offices’ and seven ‘state administrative organisations’. ‘The central state offices’, headed by the state secretaries, formally serve as a tool for improving the government’s efficiency, but in reality they do not function as parts of the centre of government – the centre of government is a separate machinery consisting of several organisations with approximately 500 employed professionals. The difference between the ministries and state administrative organisations lies in their political importance and political influence, as ministers are members of the government and heads (ravnatelj) of ‘state administrative organisations’ (državne upravne organizacije), appointed by the government, are not. Ministers make decisions at the government sessions presided over by the Prime Minister. State secretaries of the central state offices and heads of the state administrative organisations, appointed by the government, may be present during the government sessions, but are not allowed to vote. The total number of central state administrative bodies is 32. There is no clear distinction between different types of organisations at the central level, either in law or in practice. All three types of organisations – ministries, central state offices and state administrative organisations – have similar types of competences, including policy-making, law drafting and administrative supervision. Deciding about the types and number of organisations is predominantly dependent on the political and personal situation of the governing coalition. Ministries employ the vast majority of state servants and employees, and have the best capacities, while state administrative organisations and central state offices are smaller organisations. Territorially speaking, policy implementation is under the full control of ministries and other central bodies without any role being played by local governments, except in Zagreb. There are 1,464 branch offices of various ministries and other central state administration bodies. In addition, there is an additional network of 20 first-line ‘offices of state administration at the county level’ with headquarters in 20 county seats and deconcentrated offices in an additional 91 towns. There are many other public agencies, independent regulatory bodies, public funds, other public bodies and legal entities with public competences. The process of agencification was at its peak in 2009, when 87 public agencies were identified. Public agencies play an important role in policy implementation, with independent

Legislation in Croatia  91 regulators whose power has been gradually increasing based on their role in the regulation of network industries, control, licensing and other powers.7 Croatian administrative tradition is based on a Rechtsstaat approach, with lawyers in influential positions throughout the civil service. The influence of administrative and other courts is strong, with the Constitutional Court playing an active role in protecting constitutional, European and international law principles and provisions. Since the ­beginning of 2012, the administrative justice system has been significantly improved. Four first-instance administrative courts deciding on the basis of oral adversarial ­hearings were established in Zagreb, Split, Rijeka and Osijek. The previous Administrative Court, established in 1977, was transformed into the High Administrative Court with ­significant control powers in relation to individual (formal and real) acts and by-laws. The Ombudsperson and other parliamentary commissioners also contribute to the legalistic approach. Human rights and social welfare are highly respected.

5.1.3.  The People Referendums, consultative referendums and public consultations are three major channels of citizen participation provided for in Croatian legislation at the national and local levels. Citizens’ initiatives, occasional facultative consultative meetings of citizens in any matters, and obligatory public debates within spatial planning procedures are additional participation tools, but are in use only at the local level. Referendums are extremely rare in Croatia. There were only three national referenda and fewer than two dozen local referenda after 1990. The Parliament can call a referendum on amendments to the Constitution, a bill or any other issue within its competence. The President of the Republic may call a referendum on the amendments to the Constitution or any other issue he or she considers to be of importance to the independence, integrity and existence of the Republic of Croatia. He or she can call it on the proposal of the government and with the countersignature of the Prime Minister. A national referendum is mandatory only if it relates to the entry of the Republic of Croatia into alliances with other states or dissociation from them, following the previous decision by the Croatian Parliament made by a two-thirds majority of all MPs. In all other cases, it is optional, but the Parliament will call it if 10 per cent of the total electorate so request (a popular initiative referendum). Decisions are made by a majority of voters taking part therein (Articles 87 and 135 of the Constitution). A local referendum is optional and can be called by a local council or a county assembly on amendments to a statute, a by-law proposal or any other issue falling within the scope of the local or county self-government. It can be initiated by one-third of councillors, a mayor or county governor, the majority of sub-municipal councils (in towns and municipalities) and 20 per cent of the citizenry (a local initiative referendum). If a council or assembly does not call a referendum initiated by 20 per cent of the citizenry, it will be dissolved by the government. Decisions are made by the majority of voters taking part therein, but a participation quorum of 50 per cent of registered voters is necessary for a decision to be considered valid.

7 cf

A Musa, Agencijski model javne uprave (Zagreb, Pravni fakultet, 2014).

92  Ivan Koprić Consultative referendums may be called by the government regarding the territorial changes of local governments, and by local councils and county assemblies on issues falling under their competence. Formal consultations with citizens and other interested parties as a regulatory tool were introduced in 2009. The 2011 Regulatory Impact Assessment Act introduced obligatory public consultations on new regulations at the national level. This duty was expanded in 2013 by the Public Information Access Act to all public bodies when preparing regulations and decisions, strategic documents and planning documents that relate to citizens’ interests. The central Internet portal for public consultation has been functioning since the spring of 2015. The intensity of citizens’ participation is much higher at the central level.8 By two decisions published in 2013, the Constitutional Court warned that consultations with the interested public are important for the democratic dialogue and thus for the p ­ rocedural constitutionality of any legislation.9 A citizens’ initiative is regulated by the Local and Regional Self-Government Act, but is also rarely used. If 10 per cent of the citizenry sign a proposal for the adoption of a by-law or for the solution of a particular local problem, the local council or the county assembly has the obligation to put it on its agenda, to make a decision and to inform the citizenry about its decision within three months.

5.2.  Types of Law The Constitution is the basic law in Croatia. The first (‘Christmas’) Constitution was adopted at the end of 1990 and has been amended several times, in 1997, 2000, 2001, 2010 and 2013. The first four changes were adopted by the Croatian Parliament. Amendments adopted in 2000 and 2001 significantly changed the Constitution, after a decade of President Tuđman’s regime. The changes of 2010 were adopted during the final phase of the EU accession process, while the last change was the consequence of a successful popular constitutional (‘marriage’) initiative. The Croatian Constitution recognises (a) ‘constitutional acts’, (b) ‘organic laws’ and (c) other laws adopted by the Parliament. Only three constitutional acts are mentioned in the Constitution. ‘Regular’ constitutional acts, ie, those that must be adopted in the identical and full procedure designated for amending the Constitution, are the Constitutional Act on the Constitutional Court and the Constitutional Act on the Implementation of the Constitution. The third constitutional act mentioned explicitly in the Constitution, on the rights of national minorities, is enacted under the procedure stipulated for organic laws, but by a two-thirds majority of all members rather than through the procedure of amending the Constitution. However, in legislative practice, the Croatian Parliament enacted several other acts named ‘constitutional acts’, such as the Constitutional Act on Cooperation of the Republic of Croatia with

8 P Đurman, ‘Utjecaj organizacijskih varijabli na proces i rezultate participacije u javnoj upravi’, PhD thesis, Zagreb, Pravni fakultet, 2019. 9 Decision Nos U-II-1118/2013 of 22 May 2013 (NN No 63/13) and U-II-1304/2013 of 16 July 2013 (NN No 99/13).

Legislation in Croatia  93 the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (adopted in 1996) and the Constitutional Act on the President of the Republic when he or she is prevented from discharging his or her duties of 1999. However, the Constitutional Court has never reacted to this practice, except by stating that the ‘regular’ constitutional acts are those ‘passed and amended in the procedure determined for amending the Constitution’.10 Organic laws are those regulating other constitutionally established human rights and fundamental freedoms (except the rights of national minorities), the electoral system, the organisation, scope and functioning of state bodies, and the organisation and scope of local and regional self-government. They are adopted by a majority vote of all members. Other laws are adopted by a majority vote, provided that a majority of MPs are present at the session (quorum). The state budget is adopted by a majority vote of all MPs. There are about 700 laws registered in the official online registry of valid regulations, but this number includes the laws amending the original laws.11 The Croatian Parliament may, for a maximum period of one year, authorise the government to regulate by decree certain issues falling within its competence. Regulation of constitutionally established human rights and fundamental freedoms, national rights, the electoral system, and the organisation, scope and functioning of state bodies and local self-government cannot be delegated in such a way. These decrees cease to be valid upon the expiry of the period of one year from the date when the parliamentary authority was granted, unless otherwise decided by the Parliament. The Parliament adopts a law with such authorisation every year.12 During a state of war or in the event of a clear and present danger to the independence, integrity and existence of the state, or when state authorities are prevented from performing their constitutional duties, the President of the Republic may, under constitutionally prescribed conditions, issue decrees with the force of a law (emergency decrees).13 The government is constitutionally authorised to adopt decrees as a form of secondary legislation (decrees for law implementation). There are about 460 valid decrees registered in the official online registry (July 2019). Some other decisions adopted by the government may contain general and abstract norms, but their number is unknown. Administrative bodies (ministries and others) at the central level may issue three types of secondary regulations if they are explicitly authorised by and under the conditions and limitations prescribed by an act or a law adopted by the Parliament: rulebooks (760), ordinances (182), and instructions (82 in July 2019). Independent state regulatory bodies may be authorised by law to issue various regulations, by-laws and acts containing general and abstract norms. Other types of central regulations and soft law instruments, such as strategies (87), rules of procedure (32) and codes (32),14 and local statutes and by-laws need to be mentioned. 10 cf the text at: www.usud.hr/en/legal-basis. 11 See the online search machine at: www.digured.hr/(active)/tab261. 12 Despite the fact that the government uses the authorisation regularly, the number of government decrees issued on this basis is not known. 13 Such decrees were issued during the Homeland War mainly in 1991 by the then President Franjo Tuđman, who issued about 30 emergency decrees. See I Kosnica, ‘Uredbe iz nužde predsjednika Republike Hrvatske iz 1991–1992’ (2011) 61(1) Zbornik Pravnog fakulteta u Zagrebu 149. 14 Numbers in brackets are derived from the online search engine at: www.digured.hr/(active)/tab261.

94  Ivan Koprić

5.3.  Process of the Law Preparation A typical process of preparing and enacting laws consists of several phases, including: (a) planning and initiating; (b) the development of legislative drafts, including r­ egulatory impact assessment(s), public consultations and checking conformity with the EU acquis; (c) the government adopting the proposal; (d) parliamentary deliberation; and (e) promulgation, publication and entering into force. There are certain particularities that are characteristic of the adoption of the Constitution and other types of regulations. The procedures are regulated by the Constitution, the Parliament’s Rules of Procedure, the government’s Rules of Procedure and certain other laws.

5.3.1.  Planning and Initiation Planning legislative activities is a stage in the legislative process that was introduced by the Regulatory Impact Assessment Act of 2011. The first legislative plan was adopted by the government in December 2012. Although political agenda setting is in the hands of the Prime Minister and the government, formal initiators of legislative acts are ministries and other central state administrative bodies. Each of them prepares its own annual plan of legislative activities. On the basis of their inputs, the Government Legislative Office prepares a government draft general annual plan of legislative activities. Finally, the government adopts the plan. Data from Table 5.1 show that realisation does not follow plans well. In the period from 2013 to 2018, the realisation of planned legislative activities was only 36.7 per cent, while the percentage of planned bills in the overall number of bills adopted by the government was only 34.6 per cent. All other adopted bills were the result of the changed political will of the government due to changes in the political situation, priorities, coalitions, weak planning capacity of ministries and other influences. Table 5.1  Planned and realised legislative activities of the government Percentage of realisation

Ad hoc bills

Total number of bills (planned and ad hoc)

Percentage of planned bills in total number of bills

Realised

Not realised

a

b

a–b

c

d

b+d

e

133

50

83

37.6

216

266

18.8

143

43

100

30.1

92

135

31.9

75

8

67

10.7

92

100

8.0

2016

221

39

182

17.6

64

103

37.9

2017

253

139

114

54.9

47

186

74.7

2018

121

68

53

43.8

145

213

31.9

Total

946

347

599

36.7

656

1,003

34.6

Year

Planned

2013 2014 2015

Source: author’s calculation based on the government’s annual reports, available at: https://zakonodavstvo.gov.hr/ godisnji-plan-normativnih-aktivnosti/229

Legislation in Croatia  95 Apart from the government, a draft law can be submitted to parliamentary deliberation by a single member, a deputy club or a working body (committee) of the Parliament. The vast majority of bills have been submitted by the government. The Prime Minister’s Office is informed about each draft law submitted by other initiators. The government usually reacts by giving its negative opinion, indicating that the leading political party or coalition effectively controls the legislative process.

5.3.2. Drafting 5.3.2.1.  Draft Development Based on the annual Government Legislative Plan15 and a special decision (zaključak) of the government,16 the initiators begin the preparation of ‘prior regulatory impact assessment’ (hereinafter ‘prior RIA’) for a particular bill. Prior RIA needs to contain an elaboration or explanation of the following issues: 1. 2. 3. 4. 5. 6. 7.

the current state of affairs in the area in which the draft is going to be prepared; the necessary changes and timeframe for their realisation; the legislative audiences or subjects; solutions for the realisation of changes assessed as necessary; the direct economic, welfare, labour market, environment protection, protection of human rights and market competition impacts; the need for a small and medium entrepreneurship test; the need for a standard cost model methodology.

Public consultations and coordination with other ministries on the basis of such prior RIA have to be held. Information collected during the prior RIA procedure is among the important inputs in the later stages, especially during the preparation of a draft and a declaration on detailed regulatory impact assessment. Ministries rely on their own professionals, including law-drafting specialists, but can establish working groups for the development of legislative drafts. Working groups usually pull together external experts (including those from academia), stakeholders (including civil society organisations, associations of local governments, and private companies) and professionals from other governmental bodies. Ministries are more willing to engage external policy advice when goals are only vaguely determined or non-existent, or when they prepare ‘quick-win’ regulations and seek legitimacy for these.17 Think tanks and experts outside public administration can be engaged for the preparation of analyses, reports, studies, estimations and projections, simulations and other expert bases necessary for the preparation of a draft. Important tasks in the drafting and other phases of law preparation are entrusted to the Government Legislative Office (see Table 5.2).

15 Rules about RIA and public consultations are different if an ad hoc bill is being prepared. 16 The government can exceptionally request that its working body (the Government Legislative Office) or some other government professional service develops a draft law or can outsource the development of the draft. 17 T Giljević, ‘Utjecaj okoline organizacije na upravnu koordinaciju: Ministarstvo uprave kao studija slučaja’ (2015) 15(4) Croatian and Comparative Public Administration 875.

96  Ivan Koprić In developing drafts, an initiating ministry follows the rules of legislative technique prescribed by the General Methodological-Nomotechnical Rules for Preparation of Regulatory Acts adopted by the Croatian Parliament in 2015. Once a draft is completed, a ministry must request sectorial RIA from the competent ministries once the initial draft law is prepared.18 Table 5.2  Tasks of the initiating bodies and the Government Legislative Office in the legislative process

Planning legislative process Initiating body (a ministry or other state body)

Prepares annual plan of legislative activities in its sector(s)

Government Prepares Legislative draft Office government general annual plan of legislative activities

Checking of conformity of drafts Checking with the conformity Development legal with the of drafts system EU acquis Develops drafts

–

Requests a statement of conformity from the Ministry of Foreign and European Affairs

Follows ‘General MethodologicalNomotechnical Rules for Preparation of Regulatory Acts adopted by the Croatian Parliament’

Checks conformity with the legal system

Checks if there is a positive statement given by the Ministry of Foreign and European Affairs (MFEA)

Checks if the rules of legislative technique have been respected and makes all necessary corrections

Requests sectoral RIAs from competent bodies Coordinates RIA Technically supports e-consultations

Legislative technique

Final editing and publishing –

Prepares the final versions Sends them to the ‘Official Gazette’ Takes care of the correction of printing mistakes

5.3.2.2.  Public Consultations Public consultations with the interested public on the prepared draft with an attached RIA declaration have to last at least 30 days. In parallel, opinions have to be obtained from other competent bodies, from the Ministry of Foreign and European Affairs on the conformity with the EU acquis, from the Government Legislative Office on the proper implementation



18 See

below, section 4.4.

Legislation in Croatia  97 of drafting standards (legislative technique) and the conformity with the legal system (the Constitution, codes, and other laws), and from the Ministry of Finance on the availability of funding. Only 48 laws and regulations underwent public consultations in the first year of application (2011) and 173 comments were received. In 2012, the number of regulations which were opened to public consultation increased to 144 (4,786 comments received). The number increased further to 374 in 2013 (12,738 comments), 544 in 2014 (18,767 comments), 608 in 2015 (15,411 comments), 642 in 2016 (12,856 comments) and 706 in 2017 (22,566 comments).19 Public consultations are conducted on draft laws, government decrees, rulebooks, strategies, decisions, guidelines and other documents of public interest. At the national level, the number of actors submitting comments was 4,786 in 2012, 8,299 in 2013, 7,482 in 2014, 5,863 in 2015, 4,105 in 2016 and 5,821 in 2017. Citizens and non-governmental organisations (NGOs) submitted 3,303 comments out of 4,105 in 2016 (80.5 per cent) and 4,998 out of 5,821 in 2017 (85.9 per cent). In 2016, all subjects submitted 12,856 comments, but only 1,392 were accepted and 718 were partially accepted. In 2017, all subjects submitted 22,566 comments, but only 4,288 were accepted and 2,383 were partially accepted. The central internet portal for public consultations has been operating since the spring of 2015 and local governments are free to use their own webpages. Consolidated data about public consultations conducted by all public bodies that submit annual reports (the whole public administration, including local governments, public agencies and public institutions) show that all of them conducted 2,092 public consultations in 2016, in comparison to 1,454 in 2015 (a 43.9 per cent increase). Local governments are largely responsible for such increase, because they conducted 1,198 public consultations in 2016 in comparison to 604 in 2015. The average length of public consultations was 17 days, in comparison to fewer than eight days in 2015, but still shorter than prescribed (30 days as a rule).20

5.3.3.  Adoption of a Bill The procedure of adopting a legislative proposal by the government is instigated when the initiating ministry submits the draft law to the government’s General Secretariat, the body responsible for technical support to the government. The dominant role in the preparation of a draft law is given to the Government Legislative Office. Its members are experts in law drafting and other legislative techniques. There are 25 approved working positions in the Office, with a head who regularly participates in the government sessions. The Office has several important competences: • coordination of legislative agenda planning and preparation of draft government annual plan of legislative activities; • legal analysis of the received drafts and their harmonisation with legislation; 19 Data are taken from the reports about public consultations at the national level from the Office for Cooperation with NGOs: https://udruge.gov.hr. 20 Izvješće, ‘Izvješće o provedbi Zakona o pravu na pristup informacijama za 2016. godinu’, 2017, available at: www.pristupinfo.hr/dokumenti-i-publikacije.

98  Ivan Koprić • • • • •

overall supervision of prior assessment and RIA; publication of adopted laws and regulations in the Official Gazette; capacity development of ministries in RIA and legislative drafting; development of the legal system; comprehensive legal support to the Prime Minister’s Office and the General Secretariat.

The last phase before scheduling a draft law for the government session is final p ­ rofessional and political coordination. Each of the five coordination sectors is composed of three bodies: a ‘co-ordination’, a ‘professional working group’ and an office. ‘Co-ordinations’ are led, as a rule, by a deputy prime minister and are competent to consider interministerial and political issues in the following sectors: (1) foreign and European politics and human rights; (2) the system of homeland security and the Croatian war veterans; (3) economy and structural reforms; (4) sectoral policies; and (5) managing state assets. Members of ‘co-ordinations’ are ministers, state secretaries of the central state offices, heads of state administrative organisations and other persons appointed by the government. Representatives of the Government Legislation Office and the Ministry of Finance have an obligation to participate in the meetings of each ‘co-ordination’. There are five offices supporting the work of ‘co-ordinations’ and ‘professional working groups’, the latter being forums of civil servants from various ministries for discussing expert, technical, legal, and professional issues in advance of the meeting of their ‘co-ordination’. Finally, the government adopts a draft law at its session by a majority of votes of all members.21 In the event that ‘yes’ and ‘no’ votes are equally distributed, the Prime Minister casts the deciding vote. In practice, such cases do not happen because the Prime Minister is the key political player whose political will is well known to all ministers, and the overwhelming majority of draft laws have been adopted unanimously. The Prime Minister and his or her Inner Cabinet (consisting of deputy prime ministers) decide on strategic direction. They steer the government and make the most important decisions, including those about legislation. Harmonisation with EU law has an important place in the government’s legislative considerations. When adopted by the government, a draft law (nacrt zakona) becomes a bill (prijedlog zakona).

5.3.4.  Parliamentary Deliberation A bill will be submitted to the President of the Parliament along with information about the person who will give explanations about it during the parliamentary deliberation. Various documents, such as any analyses, reports about public consultations and international agreements, can be attached to the bill. It is assigned a number with a label, which can be PZ (a regular or ‘domestic’ bill) or PZE (a bill aimed at harmonisation with EU law). The President of the Parliament officially dispatches the bill to the MPs and the parliamentary committees. A parent committee and the Committee for Legislation will discuss the bill

21 It is only proposals for constitutional amendments that shall be adopted by a two-thirds majority of government members.

Legislation in Croatia  99 and establish their opinions, comments and suggestions. The President of the Parliament dispatches opinions in written form to all MPs and to the proposer of the bill. After the preparatory procedure, the bill is discussed in plenary session in the first reading. The Parliament adopts a conclusion with its integrated opinion, comments and proposals to the proposer of the bill on the basis of this debate. The proposer of the bill prepares the final draft, taking into account the parliamentary input. The Parliament can decline the bill if the majority does not consider its adoption to be necessary. The proposer of the bill cannot re-submit another bill relating to the same legislative matter for three months. The final draft undergoes the second reading procedure only if the proposer submits it within six months after the first reading has been completed successfully. If not, the bill is abandoned. The third reading is extremely rare in the Croatian legislative practice. Only when a large number of amendments are submitted during the second reading or the submitted amendments substantially change the final draft can the proposer request a third reading or the Parliament decide about it on its own initiative. A bill can be discussed in urgent parliamentary procedures only if the particular justification can be elaborated. In such cases, the proposer submits the final draft and the elaboration of why the urgent procedure is justified, and the bill undergoes integrated, simultaneous first and second readings. If a bill is submitted by the MPs, at least 15 MPs have to support the urgent procedure proposal. An urgent procedure is accepted when the session agenda that includes such a proposal is voted for. If the urgent procedure is not accepted, the President of the Parliament can immediately propose that the bill undergoes the first reading procedure during the same session. Acquis-related bills undergo an urgent and simplified legislative procedure if the proposer so requests. Only if an acquis-related bill is not harmonised with the Constitution or the Croatian legal system can the Parliament decide to accept considering it in the first reading (ie, in a regular legislative procedure). During the EU accession period (2000–11), there were 523 acquis-related laws out of a total of 2,005 bills that underwent the legislative procedure (about 26 per cent). The urgent legislative procedure was applied to the enactment of about 80 per cent of all acquis-related laws.22

5.3.5.  Promulgation, Publication and Entering into Force The President of the Republic promulgates the enacted law within eight days of its adoption. The President can instigate constitutionality review before the Constitutional Court if he or she considers the new law to be unconstitutional. Before their entry into force, laws and other state regulations are published in Narodne novine, the official journal of the Republic of Croatia. Local by-laws are published in the official journals decided by the local representative bodies.

22 See the detailed data in I Koprić, A Musa and G Lalić Novak, Europski upravni prostor (Zagreb, Institut za javnu upravu, 2012) 259. The urgent procedure was criticised by the Constitutional Court, the OECD-Sigma and domestic experts for reducing the quality of laws.

100  Ivan Koprić A law enters into force no earlier than the eighth day after the date of its publication, unless otherwise specified thereby for exceptionally justified reasons. A similar legal regime applies to other regulations and by-laws. The Government Legislative Office prepares the final versions of laws and other state regulations, sends them to the ‘Official Gazette’ (Narodne novine) and takes care of the correction of printing mistakes. Details are regulated by the Rules of Publishing the Laws, Regulations and Other Acts in the Official Gazette adopted by the head of the Government Legislative Office. Laws and other regulations of state bodies and bodies vested with public authority do not have a retroactive effect. Exceptionally, only individual provisions of a law may have a retroactive effect for specific justified reasons. The provisions of other state and local regulations and by-laws will not have a retroactive effect.

5.4.  Legislative Technique There are two pillars of legislative technique in Croatia: RIA and general rules of drafting laws adopted by the Parliament. The RIA system has been fully effective since 2013. In the beginning, it encompassed the assessment of impacts on the economy, on the socially sensitive and on other groups with special interests and needs, and on the environment and sustainable development. There were two categories of legislative projects – one that needed to be complemented by RIA and the other that did not need to be complemented by RIA.23 According to the annual government reports for 2013–16, the number of planned legislative activities in the latter category outweighed the number in the former category and was decreasing in the latter category (see Table 5.1). Only 202 out of 572 planned legislative activities had to be complemented by RIA (35.3 per cent). This share of the total number of planned legislative activities decreased from 45.9 per cent in 2013 to only 28.1 per cent in 2016. Out of 202 planned legislative activities which ought to have been complemented by RIA, only 40 (less than 20 per cent) were realised in the period (2013–16). In 2015 only five out of 92 non-planned legislative activities were accompanied by RIA. In total, only 45 legislative projects were accompanied by RIA in the period 2013–16, which is only 6.4 per cent of the total realised legislative activities. A new RIA Act, which has been in force since May 2017, widened and more precisely regulated the methodology, competences and procedures of the RIA system. It has imposed an obligation of conducting a RIA relating to economic, social and environmental protection, the protection of human rights, competition and impacts on the labour market. The competent bodies are as follows: 1. Ministry of Economy, Entrepreneurship and Crafts – economic impacts. 2. Ministry of Labour and Pension System – employment, labour market and pension system impacts.

23 cf B Zelenika, ‘Suvremeni pristupi zakonodavstvu i stvaranje stabilnog zakonodavnog okvira za ekonomski rast’ in N Zakošek (ed), 8. Zagrebački ekonomski forum (Zagreb, Friedrich Ebert Stiftung, 2014).

Legislation in Croatia  101 3. Ministry of Health – impacts on the health system and the health of people. 4. Ministry of Demography, Family, Youth and Social Policy – impacts on the welfare system and welfare impacts on citizens. 5. Ministry of Environment and Energy – impacts on the environment and sustainable development. 6. Government Office for Human Rights and Rights of National Minorities – impacts on human rights and fundamental freedoms protection. 7. Croatian Competition Commission – impacts on market competition. The RIA Act of 2017 allows an ex post review of legislation that is completely in the hands of line ministries, which are free to decide on whether to conduct such a review, except when certain sectoral law introduces mandatory ex post legislation review. Currently, only 13 laws allow for such mandates. To date, no ex post review has yet been published, nor is there any plan for a general ex post review of legislation. In June 2015, the Croatian Parliament adopted guidelines as a legislation quality improvement measure. These apply to the preparation of the Constitution, constitutional acts, laws, rules of procedure, decrees, rulebooks, ordinances, instructions, recommendations, decisions and other general acts at the national level, but can also be applied by local bodies when preparing by-laws. The guidelines regulate, in a rather detailed manner, the following themes: (a) the content and structuring of the regulations; (b) language, terminology, style, grammar, orthography and the writing style; (c) techniques for amending regulations which are in force; (d) preparation of the amendments to the final drafts during the legislative procedure in the Parliament; (e) correcting the published regulations; (f) preparation of cleansed texts of regulations that have been amended several times; and (g) authentic interpretation of the particular provisions. Several important issues are regulated, such as retroactive effect, gender issues and the usage of foreign terms. No evaluation of the effects of guidelines has been prepared.

5.5. Perspectives The legislative reform process in Croatia started with the issue of the quantity of regulations, later moving on to the issue of their quality, and ending with efforts to improve the legislative process.24 The first phase started in 2006 when a special unit (Hitrorez) was established. Its goals were the elimination of all unnecessary regulations and their better harmonisation. The expected outcomes included reduced regulatory and law enforcement costs for businesses and a better investment and business climate. However, the results were modest. Although 2,688 regulations were considered, only 706 of them were recommended to be abolished and 865 to be simplified. After two years, only 366 recommendations were implemented (23.3 per cent). The savings amounted to approximately 381 million kuna.

24 cf A Musa, ‘Prilagodba procesa izrade propisa europskim integracijama: novine i izazovi’ (2014) VI Godišnjak Akademije pravnih znanosti Hrvatske 3.

102  Ivan Koprić Legal education does not address legislative improvements, except in the traditional way through legal analysis within the well-established legal subjects. Certain public administration study programmes, such as those at the Faculty of Law in Zagreb, have courses dealing with normative technique and regulatory management. The Government Legislative Office and the State School for Public Administration offer in-service training in RIA, but this is not mandatory. In the future, improvement of public policies and the legislative process may tackle the following issues: 1. Separation of the Office for RIA from the Legislative Office and widening its scope in order to encompass ex ante RIA, ex post evaluation of legislation, coordination, monitoring and evaluation of public policies and legislation. 2. Strengthening legislative planning. 3. Insisting on RIA in all legislative projects. 4. Improving public consultations, including those at the local level. 5. Improvement of legal and public administration education by including modern legislative matters. 6. Strengthening the evaluation culture and the preparation of evaluation studies on the results of public policies and major pieces of legislation.

Further Reading J Barbić (ed), Hrvatski pravni sustav (Zagreb, HAZU, 2012) T Josipović (ed) Introduction to the Law of Croatia (Alphen aan den Rijn, Kluwer Law International, 2014) I Koprić, Public Administration Reform in Croatia (Zagreb, Institute of Public Administration, 2020, forthcoming) ——. (ed), Europeizacija hrvatske javne uprave (Zagreb, Pravni fakultet, 2014)_ I Koprić, G Marčetić, A Musa, V Đulabić and G Lalić Novak, Upravna znanost – javna uprava u suvremenom europskom kontekstu (Zagreb, Pravni fakultet, 2014) I Koprić, A Musa and G Lalić Novak, Europski upravni prostor (Zagreb, Institut za javnu upravu, 2012) Z Petak and K Kotarski, Policy-Making at the European Periphery: The Case of Croatia (London, Palgrave Macmillan, 2019) E Pusić (ed), Hrvatska država i uprava (Zagreb, HAZU, 2008) B Smerdel, Ustavno uređenje europske Hrvatske (Zagreb, Narodne novine, 2013)

6 Legislation in Cyprus NICOLETTA IOANNOU

Context The Cypriot legal system, including the law-making process, has been greatly influenced by the island’s history and political background. First of all, these elements cannot be seen independently from the particularities that the Constitution of the Republic of Cyprus presents. The 1960 Constitution as originally drafted and the constitutional and legal order that currently apply in the Republic of Cyprus are radically different. This was the result of the political unrest in the island due to the 1963 intercommunal clashes and the consequential withdrawal of the Turkish Cypriots from the administration, followed by the Turkish invasion and the continued occupation of Northern Cyprus by Turkey. The need for the Republic of Cyprus to survive by maintaining its legality in international law and properly functioning internally has led to the development of special characteristics and mechanisms that represented the legitimate response of the Republic to the new realities in the island. As a result, from 1963 up to the present day, the Constitution continues to apply with the adjustments brought to it through the ‘doctrine of necessity’, as adopted by the Supreme Court of Cyprus. Second, in 2004 the Republic of Cyprus joined the EU as a full member, despite the fact that the Turkish occupation continues. Primary EU law, namely the Act Concerning the Conditions of Accession of the Republic of Cyprus to the EU and the annexed Protocol 10, specify that the application of European law shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic does not exercise effective control. Against this background, in this chapter I will try to describe the uniqueness of this system in terms of its content and internal structure. Section 6.1 will examine the sources of law in Cyprus and the hierarchy of norms, whereas section 6.2 will deal with the methodology and procedure of enacting legislation. Finally, section 6.3 will examine the safety checks that are available to ensure the legitimacy of enacted legislation.

6.1.  Sources of Cypriot Law and the Hierarchy of Norms 6.1.1.  EU Law Following the accession of Cyprus to the EU, EU law has become the superior law in the Republic. The doctrine of supremacy of EU law was reflected in the Constitution through

104  Nicoletta Ioannou the 5th Amendment of the Constitution,1 by which a new Article 1A was introduced reaffirming the supremacy of EU law even vis-a-vis the Constitution. Article 1A of the Constitution provides the following: No provision in the Constitution can be deemed as overriding any legislation, acts or measures enacted or taken by the Republic which are obligatory as a member state of the European Union, nor does it hinder Regulations, Directives or other binding provisions or measures of a legislative nature enacted by the European Union from having legal force in the Republic.

Thus, EU law has superior force to any law of the Republic. EU law includes primary law (ie, the EU Treaties), international agreements to which the EU or the EU and its Member States are contracting parties, and secondary legislation (ie, regulations, directives and decisions). Judicial decisions of the European Court of Justice interpreting EU law also form an integral part of EU law and are hence binding to the Republic. During the negotiations for the accession of Cyprus to the EU, the political problem was inevitably one of the main concerns and crucial issues of discussions. As soon as it became evident that the no solution to the Cyprus question could be reached, alternative solutions were sought in relation to the occupied areas. Under international law, there is no doubt that the occupied areas form part of the territory of the Republic of Cyprus. The inability of the Government of the Republic of Cyprus to apply and enforce EU law on that part of the island would lead to a breach of Cyprus’ obligations as a Member State under the Treaty to do so and would result to the imposition of sanctions. The outcome of the negotiations was an agreement to grant the Republic of Cyprus a derogation from its obligations to implement and enforce EU law where objectively, and for reasons outside its control, it is not possible to do so. This arrangement has become part of primary EU law by its inclusion as Protocol 10 to the Act Concerning the Conditions of Accession of the Republic of Cyprus to the EU. Article 1 of Protocol 10 provides as follows: ‘The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic does not exercises effective control.’ Therefore, by virtue of this, the whole territory of the Republic of Cyprus has joined the EU, including the occupied areas. However, the obligations of the Republic of Cyprus to apply and enforce EU law in that part are suspended up until the moment the Republic regains ‘effective control’ in that area. It should be noted that the term ‘effective control’ reflects the terminology used by the European Court of Human Rights (ECtHR) in its rulings. In the case of Loizidou v Turkey,2 the ECtHR stated that Turkey exercises effective control over the areas of Cyprus under Turkish occupation, rendering Turkey responsible for violations of human rights in that area. It should further be noted that the suspension of EU law relates to the application of EU law in these areas and must be interpreted restrictively; it does not extend to all issues in relation to those areas or in respect of such areas. This was confirmed in 2009 by the European Court of Justice in Apostolidis v Orams.3 The relevant question was a preliminary reference from the English Court of Appeal in a case involving a Greek Cypriot seeking the



1 Law

127(i)/2006. v Turkey [1995] ECtHR, Application No 15318/89. 3 Case C-420/07 Apostolidis v Orams ECLI:EU:C:2009:271, judgment of 28 April 2009. 2 Loizidou

Legislation in Cyprus  105 recognition of a judgment obtained by the Nicosia District Court for damages against a couple from the UK, who had without his consent illegally obtained possession and control over his property in the north. The ECJ has ruled as follows: It follows from a literal interpretation of Article 1(1) of Protocol No. 10 that the suspension for which it provides is limited to the application of the acquis communautaire in the northern area. However, in the case in the main proceedings, the judgments concerned, the recognition of which is sought by Mr. Apostolides, were given by a court sitting in the Government-controlled area.

The fact that the judgment concerns land situated in the northern area does not preclude the interpretation referred to in the preceding paragraph, since, first, it does not nullify the obligation to apply Regulation No 44/2001 in the government-controlled area and, second, it does not mean that this regulation must thereby be applied in the northern area. In the light of the foregoing, the answer to the first question is that the suspension of the application of the acquis communautaire in the northern area, provided for by Article 1(1) of Protocol 10, does not preclude the application of Regulation 44/2001 to a judgment which is given by a Cypriot court sitting in the government-controlled area, but concerning land situated in the northern area. Furthermore, the ECJ confirmed that Protocol 10 is a transitional arrangement that applies for as long as the exceptional situation continues: It must be observed at the outset that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of Community law apply ab initio and in toto to that Sate, derogations being allowed only in so far as they are expressly laid down by transitional provisions.

In that regard, Protocol 10 constitutes a transitional derogation from the principle set out in the preceding paragraph, based on the exceptional situation prevailing in Cyprus.

6.1.2.  The Constitution of the Republic of Cyprus The Constitution can be said to constitute the traditional basis of the legislation in Cyprus. Unlike other constitutions that derive from the free will of the people, the Constitution of the Republic of Cyprus did not emanate from the exercise of the sovereign rights of the people of Cyprus. Instead, it has its basis in the agreements granting Cyprus its independence and creating a new state.4 The Constitution of Cyprus has been described as one of the most rigid and complex constitutions in existence. The main reason for this is because, according to its Article 182, certain provisions of the Constitution are described as ‘basic Articles’ and cannot be amended in any way, whereas for other articles can be amended, although a separate majority is required.5 The Constitution sets up a state with a bicommunal character and attempts through lengthy and detailed provisions to regulate all aspects of the functioning of the states. It establishes a presidential regime with full separation

4 Agreement reached between Greece and Turkey in Zurich in 1959 and later that year between the two states and the UK in London. 5 Amendments to the Constitution will be discussed in more detail later on in this chapter.

106  Nicoletta Ioannou of powers. The arrangements aim to ensure that both communities retain their separate powers and participate as separate entities in governance and administration. The legislative power, for example, is in principle exercised by the House of Representatives, consisting of 50 parliamentarians, 35 of whom belong to the Greek-Cypriot community and 15 to the Turkish-Cypriot community. The President of the House belongs to the Greek community and is elected by the Greek-Cypriot Members of the House, whereas the Vice President belongs to the Turkish community and is elected by the Turkish Cypriot Members. Decisions of the House of Representatives are adopted by a simple majority of the total number of representatives present and voting. However, for certain decisions such as the imposition of taxes, separate majorities of the members of the Greek and the Turkish communities respectively are required. The allocation of the ratio of 70:30 is to be followed in all aspects of administration (eg, the civil service and the police) as well as by the executive, where the Council of Ministers consists of seven Greek-Cypriot ministers, appointed by the President of the Republic (who also always belongs to the Greek-Cypriot community) and three ministers belonging to the Turkish-Cypriot community. The main difficulty when discussing the Constitution as a source of Cypriot law lies in the fact that in many respects, the written provisions that were introduced in 1960 are very different from the way in which this Constitution has been applied in practice over the last 60 years. The Republic of Cyprus operated under the Constitution of 1960 for three years. It could be argued that even this short time was long enough to prove that if both communities shared the political will and determination to safeguard the functioning of the new state, this Constitution could have operated for many more years, despite its uniqueness. The political uncertainty, including intercommunal riots that took place in late 1963 and early 1964, led to a constitutional crisis. Following the events of December 1963,6 the Turkish-Cypriot members of the government gradually withdrew from the administration. As a result of this, the bicommunal character of the 1960 Constitution was lost and consequently the arrangements of the Constitution could not be followed. In order for the state to continue to function, the administration was now exclusively exercised by the Greek Cypriots.7

6.1.3.  The Doctrine of Necessity The legality of the emergency measures was challenged before the Supreme Court in the case of Ibrahim and Others v Attorney General,8 a landmark decision for the Cyprus legal order. The Turkish-Cypriot defendant in this case challenged the legality of a law approved by the House of Representatives consisting only of its Greek-Cypriot Members and following its approval promulgated and published in the Official Gazette upon the signature of

6 An outbreak of violent incidents between Greek Cypriot and Turkish Cypriots on 21 December 1963. 7 At the political level, in 1964 a UN Security Council Resolution was adopted recognising the legality of the Republic of Cyprus in spite of the deviation from the 1960 Constitution. At the same time, a UN Peacekeeping Force was deployed in the island in order to keep the peace. 8 Ibrahim and Others v Attorney General [1964] CLR 195.

Legislation in Cyprus  107 only the President of the Republic, since the Vice President had withdrawn from his office. In its decision, the Supreme Court on the one hand recognised that the challenged law was enacted contrary to certain provisions of the Constitution, but, nevertheless, that this could be justified in light of the abnormal situation and that the Constitution needed to be interpreted in accordance with the doctrine of necessity. The Supreme Court in its judgment stated as follows: In the light of the principles of the law of necessity as applied in other countries and having regard to the provisions of the Constitution of the Republic of Cyprus (including the provisions entrenching the unamendability of parts of the 1960 Constitution), formulated the position as follows: I interpret our constitution to include the doctrine of necessity in exceptional circumstances which is an implied exception to particular provisions of the constitution; and this in order to ensure the very existence of the State. The following prerequisites must be satisfied before this doctrine may become applicable: (a) (b) (c) (d)

an imperative and inevitable necessity or exceptional circumstances; no other remedy to apply; the measure taken must be proportionate to the necessity; and it must be of a temporary character limited to the duration of the exceptional circumstances.9

The doctrine of necessity has become the basis on which application of the 1960 Constitution could continue in order to allow the country to continue functioning. In practice, the differences in the provisions are considerable. Some examples can be listed as follows: • Instead of the functioning of the Supreme Constitutional Court established under Article 133 of the Constitution and the High Court established under Article 152 of the Constitution, a new unified court, the Supreme Court, which was established by a 1964 law, exercises all functions. • The position of Vice President of the Republic has been vacant for the last 60 years and the functions which according to the Constitution are exercised jointly by the President and the Vice President have been exercised solely by the President. • There are no Turkish-Cypriot Members of the House of Representatives and all laws for which the Constitution provides that a separate majority among the representatives of the two Communities is required are enacted if such a majority exists among the representatives of the Greek-Cypriot community. • The ratio of 70:30 is not followed.

6.1.4.  International Conventions or Agreements By international conventions or agreements, we mean all treaties, agreements or conventions with foreign states or international organisations. Their conclusion under Cypriot law is regulated by Article 169 of the Constitution as regards both the steps to be followed for such a conclusion and their ranking in the hierarchy of norms.

9 Attorney General of the Republic v Mustafa Ibrahim and Others (Criminal Appeals No 2729, 2734, 2735) [1964] Cyprus Law Reports 195, 264–65.

108  Nicoletta Ioannou Article 169 provides as follows: Subject to the provisions of Article 50 and paragraphs 3 of Article 57 – (1) every international agreement with a foreign State or any International Organisation relating to commercial matters, economic co-operation (including payments and credit) and modus vivendi shall be concluded under a decision of the Council of Ministers; (2) any other treaty, convention or international agreement shall be negotiated and signed under a decision of the Council of Ministers and shall only be operative and binding on the Republic when approved by a law made by the House of Representatives whereupon it shall be concluded; (3) treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.

It is therefore evident that international agreements have superior force to any national legislation when the following three conditions are met: • they have been concluded in accordance with paragraph (1) or (2) of Article 169; • they were published in the Official Gazette of the Republic; and • the other party to such an agreement applies the agreement as well. There have been examples in the past of agreements concluded by virtue of Article 169 (paragraph (1) or (2)) and published in the Official Gazette, but that never came into force since the counter-party to such agreements never concluded the internal procedure required in order to apply the agreement.10 The Constitution does not clearly address the issue of the provisional application of international conventions. It is common practice in some agreements to insert a provision stating that the agreement (or part of it) will provisionally apply upon its signature until the internal proceedings under the national law of the contracting parties is completed, and upon such completion, the agreement will come into force. This has its basis in Article 25 of the Vienna Convention on the Law of Treaties of 1969, which also clarifies that in such cases, the treaty produces the same legal effect in international law as if it had come into force. For treaties that fall within the scope of Article 169(1), provisional application can be more easily achieved since the only requirement for a treaty’s entry into force is a decision of the Council of Ministers and its subsequent publication in the Official Gazette, both of which can be achieved relatively rapidly. When it comes to agreements falling within the scope of Article 169(2), the issue becomes more complicated since ratification by the House of Representatives is required. Due to the complexity involved in this stage, as a general policy in bilateral agreements, efforts are undertaken to avoid the inclusion of this type of provision.

10 One example is the Agreement between Republic of Cyprus, the Arab Republic of Egypt and the State of Israel and on the sub-regional contingency plan preparedness and response to major marine pollution incidents in the Mediterranean.

Legislation in Cyprus  109 Before the conclusion of an international agreement (either bilateral or multilateral), it is always essential to examine the issue of competence of the Republic to conclude such an agreement. Cyprus’ membership of the EU has inevitably limited the competences of the Republic. Article 3 of the Treaty on the Functioning of the European Union (TFEU) lists all areas where the EU exercises exclusive competences, and in such areas the law-making power belongs to the EU and not its Member States. On the other hand, Article 4 of the TFEU lists the areas where the EU and its Member States share competences. According to Article 3(2) TFEU: The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

International conventions that were concluded by the Republic before 1 May 2004 (the date of Cyprus’ accession to the EU) and which are not consistent with EU law, including the issue of competences, have ceased to apply.

6.1.5. Legislation National legislation enacted by the House of Representatives is the next source of law. All legislation enacted must be in accordance with both the Constitution and the provisions of EU law. Apart from the new legislation enacted since Cyprus’ independence, colonial laws are also applicable by virtue of Article 188 of the Constitution, which provides that all laws that applied on the eve of the independence of Cyprus are still in force and binding in the Republic, unless they are repealed or amended. Primary legislation can only be amended or repealed by subsequent primary legislation.

6.1.6.  Secondary Legislation Secondary legislation includes regulatory acts issued by the executive pursuant to statutory powers vested in it. This can take the form of regulations, decrees or sometimes notifications. Secondary legislation aims to facilitate the execution and implementation of the law; therefore, it is limited to more technical issues. It is exceptionally enacted by the executive. Article 54(g) of the Constitution enables the Council of Ministers to exercise powers through the: ‘Making of any order or Regulation for the carrying into effect of any law as provided by such law.’ This represents a clear exception to the separation of powers. Even though the form of Article 54 makes reference to ‘executive powers’ listed below for the Council of Ministers to perform; in fact it is certain that this function is a legislative one. As an exception, it will of course be interpreted strictly. It should be noted that the Constitution does not give a general power to the Council of Ministers to issue regulations on any and every matter; the power is limited only to issues that are expressly provided for in the specific law. In other

110  Nicoletta Ioannou words, there has to be a specific enabling provision in the legislation to allow for the issuing of regulations and any such provision has to prescribe the particular measures that have to be taken. This can be in a general11 or more specific12 form. The enabling provision is very important because no regulation can be valid unless it falls within such a provision; otherwise the secondary legislation will be ultra vires and as such will be rendered invalid. This is why the drafter, when drafting secondary legislation or scrutinising primary drafts, confirms the presence of power to issue the regulations in question. If not, then the only way to amend the legislation is by inserting a specific enabling provision to this effect.

6.2.  Procedure for the Enactment of Legislation 6.2.1.  Constitutional Amendments As has been explained earlier, the provisions that relate to possible amendments of the Constitution are strict. According to Article 182 of the Constitution, certain articles that are included in Annex III of the Constitution are described as ‘basic’ Articles and cannot under any circumstances be amended. All other Articles can be amended, but in order for this to happen, separate majorities of two-thirds of votes among the representatives of each community is required.13 In particular, Article 182 provides as follows: 1.

2. 3.

The Articles or parts of Articles of this Constitution set out in Annex III hereto which have been incorporated from the Zurich Agreement dated 11th February, 1959, are the basic Articles of this Constitution and cannot, in any way, be amended, whether by way of ­variation, addition or repeal. Subject to paragraph 1 of this Article any provision of this Constitution may be amended, whether by way of variation, addition or repeal, as provided in paragraph 3 of this Article. Such amendment shall be made by a law passed by a majority vote comprising at least two-thirds of the total number of the Representatives belonging to the Greek Community and at least two-thirds of the total number of the Representatives belonging to the Turkish Community.

It follows that the first crucial question is whether the Constitution can be amended in the political realities that apply in Cyprus after 1963. In other words, can non-basic Articles be amended without a vote of the Turkish-Cypriot members of the House of Representatives? The first two attempts to do so have failed. Following the enactment of legislation amending the Constitution in order to allow earlier elections for Members of the House of Representatives and to allow voting rights to persons of 18 years of age, the President

11 One example of general enabling provision is: ‘The Council of Minister may issues Regulations for the better implementation of this Law.’ 12 One example of specific provision is: ‘Regulations issued by the Council of Ministers under this section may provide for the appointment of Inspectors for the better implementation of this Law.’ 13 This is one of two situations in the Constitution of the Republic of Cyprus in which separate majorities are required, the other being the increase in the number of Members of the House of Representatives.

Legislation in Cyprus  111 of the Republic has referred such laws to the Supreme Court, with a challenge of their constitutionality.14 The Supreme Court in its opinion in both cases15 concluded that the laws were contrary to the provisions of the Constitution, since in order for an amendment of the Constitution to be achieved, the Constitution itself provides for separate majorities from the members of both communities. Since 1963, the Turkish-Cypriot representatives have not participated in this and therefore there are no circumstances under which the requirement of a separate majority could be achieved. This view of the Court, which in practice meant that the Constitution in Cyprus could not under any circumstances be amended, has changed gradually. In 1989, the Law on the First Amendment of the Constitution was enacted, which provided for the amendment of Article 111, which related to the jurisdiction of courts in religious marriages between members of the Greek Orthodox Church. This Law was not challenged under the procedure of Article 140, but its constitutionality was questioned in an appeal relating to a divorce case. The Supreme Court in its judgment rejected the arguments challenging the constitutionality of such a law and therefore the First Amendment of the Constitution was upheld. However, given the fact that this amendment related to an article which dealt with exclusively with issues of concern only to the Greek-Cypriot community, it was still unclear if constitutional amendments in general could be introduced. The issue was clarified in 1992 in the decision of the Supreme Court in Koulantris v House of Representatives,16 where, in a case challenging the constitutionality of the Third Amendment of the Constitution, the Full Bench of the Supreme Court decided that the doctrine of necessity justifies the amendments of the Constitution by a majority of the two-thirds of Greek-Cypriot Members of the House of Representatives. The Constitution has up to now been amended on 10 occasions, the last time being in 2016.

6.2.2.  International Conventions The basic steps of the procedure for the conclusion of international agreements are as follows. First, the competent ministry needs to decide if the proposed agreement is desirable after an evaluation of its usefulness. The detailed analysis of the competent ministry should include at least the following: (1) Consultations with the Ministry of Finance to identify the possible cost of the proposed agreement. (2) Consultation with other ministries in cases of shared competences or specific interest to other ministries. (3) Examination of obligations undertaken by the Republic, assessment of their compliance to existing EU obligations and Cypriot legislation, and identification of any need for amendments in legislation or introduction of implementing measures accordingly. (4) In the case of multilateral agreements, the competent ministry should also check if the imposition of a reservation to any of the provisions of the agreement is necessary in those cases where the agreement permits this. 14 This procedure is provided under art 140 of the Constitution and will be discussed later on in this chapter. 15 President of the Republic v House of Representatives [1985] 3 CLR 2002; President of the Republic v. House of Representatives [1985] 3 CLR 2224. 16 Koulantris v House of Representatives (1997) 1 Α.Α.Δ 1026.

112  Nicoletta Ioannou A different procedure is then required depending on whether the agreement in question is a bilateral or multilateral one. In the case of multilateral agreements, the next step is the submission to the Council of Ministers of a proposal to authorise the competent minister to sign, subject to ratification of the agreement and, where needed, subject to the drafting of the ratifying bill. The signature takes place once the minister receives full power to do so through a document signed by the President of the Republic. The nature of the agreement is then examined in order to identify whether the agreement falls within Article 169(1) or (2) of the Constitution. Article 169(1) provides that agreements in relation to commercial matters, economic cooperation (including credit and payments) and its modus vivendi shall be concluded by a decision of the Council of Ministers. Such agreements are then published in the Official Gazette of the Republic. A translation of the agreement into Greek should also be published at the same time. For all other agreements that fall under Article 169(2) of the Constitution, a ratifying law together with an explanatory note signed by the Attorney General of the Republic is required. In the ratifying bill, the competent ministry should include implementing provisions such as the appointment of competent authorities, the creation of offences and the imposition of penalties. The bill is then submitted to the Law Office of the Republic for legal vetting and, once approved by the Council of Ministers, is then submitted to the House of Representatives for enactment. The ratifying law is then signed by the President of the Republic and published in the Official Gazette. The Agreement is enforced only after the submission by the Republic of the instrument of ratification17 with the depository of the agreement in accordance with Article 37 of the Constitution. Upon the completion of this procedure, the Republic becomes a contracting party to such an agreement. In the case of a bilateral agreement, the evaluation of the competent ministry is followed by a submission of a first draft of the text of the agreement to the Law Office for preliminary legal vetting and the submission of questions for legal opinion if this is deemed necessary. The competent minister is required to negotiate the agreement, following a decision authorising him to do so, by the Council of Ministers. In certain cases, a negotiating team headed by the competent minister is appointed by the Council of Ministers in issues of shared competence. Often, representatives of the Law Office also participate in such negotiating teams. The final text is again submitted to the Law Office for legal vetting. It is always preferable for the agreement to also be drafted in Greek as an official text for signature. However, in cases where this is not done and only the English version is available, a Greek translation is required for publication. The final signature of the agreement is authorised by the Council of Ministers. The same procedure is then adopted as in the case of multilateral agreements for identifying the nature of the agreement and preparing a ratification law if this is necessary or proceeding with publication in the Official Gazette of the Republic. Following such publication, which signifies the end of the internal procedure for the adoption of the agreement, the contracting parties notify each other through an exchange of verbal notes that the internal procedure for the ratification is concluded and the agreement enters into force.



17 This

procedure applies for agreements that fall within the scope of both paragraphs of art 169.

Legislation in Cyprus  113

6.2.3.  Legislation Transposing EU Law A separate procedure is in place for EU transposition. The most essential difference lies in the fact that time limits must be strictly followed in order for the harmonising legislation to be in place up to the final date allowed for the transposition of the directive by Member States. As in the case of national laws, the draft bill is prepared by the competent ministry which has also the responsibility of ensuring that in preparing such a draft, due consideration was given to the text of the directive and preferably not only in its Greek-language version but also in other official languages of the EU. This is important because in some cases, there are discrepancies in the text due to translation issues. A comparison between different-language versions can provide a more accurate interpretation of the text. The drafter also needs to ensure that the text reflects any judgments of the ECJ interpreting the relevant provisions of the directive and also any communication of the European Commission providing guidance for the transposition of the directive. In some cases, the European Commission organises working groups to provide assistance to Member States in order to transpose a directive; this is especially the case where the legislation is complicated. It is the competent ministry’s responsibility to attend such workshops and benefit from such assistance. When transposing substantive provisions, the drafter needs to ensure that the provisions of the directive are not simply copied and adjusted where necessary. In cases where further national regulation is required, this must be done taking into consideration all the elements described above. Where provisions of the directive leave the Member State with the option to decide on their transposition, a policy issue is raised by the competent ministry and, later the Parliament in order to decide if it is preferable to transpose the specific provision or not. Enforcing provisions in the bill is an area where the drafter has more flexibility to make decisions, bearing in mind the internal legal order. He is therefore called upon to decide on issues like competent authorities, jurisdiction and competent courts, as well as sanctions. These elements must provide, on the one hand, uniformity with national legislation, but, on the other hand, must ensure that these provisions meet the requirements of EU law. Some examples can be dissuasive criminal penalties, ceilings in compensation sums or issues relating to jurisdiction. Finally, the drafter needs to identify provisions in the directive which do not need to be transposed into the national legal order. This is the case for provisions that relate to actions required by the EU institutions or provisions that relate to the obligations of the administration, such as regularly reporting on the enforcement of the directive. Given the special character of harmonising legislation, in the majority of cases the legislation contains only harmonised provisions. However, less frequently, a new piece of legislation may contain also other national provisions. As regards regulations, it should be noted that these are directly applicable and do not need to be transposed into the national legal order; nevertheless, certain provisions might need to be implemented. This relates to issues such as the appointment of national authorities for the enforcement and creation of offences or the imposition of sanctions. This can be achieved either through new dedicated legislation to that effect or electing to use framework legislation, such as the Law Providing for the Enforcement of EU Regulations and Decisions, which enables the approval of secondary legislation in order to introduce the necessary enforcement measures.

114  Nicoletta Ioannou

6.2.4.  Other Types of National Legislation Ordinary national legislation is enacted by the House of Representatives. According to Article 80 of the Constitution, the right to introduce a bill before the House of Representatives belongs either to the ministers when they introduce a governmental bill or to Members of the House of Representatives when presenting their proposals. The second paragraph of Article 80 limits the rights of Members of the House of Representatives to introduce bills only insofar as such bills do not have a negative impact on the budget. In particular, Article 80(2) provides that: ‘No Bill relating to an increase in budgetary expenditure can be introduced by any Representative.’ Governmental bills are submitted to the House of Representatives once all the steps of the procedure have been followed, ie, the bill has undergone legal vetting by the Law Office of the Republic and, together with the explanatory note signed by the Attorney General of the Republic, has been submitted and approved by the Council of Ministers. Once a Bill is submitted to the House of Representatives, it is presented to the plenary in a summary form for the first reading and a copy is given to all Members of Parliament. This is followed in due course by a second reading at the plenary, where a detailed discussion and analysis of the provisions of the bill takes place. At the end of this stage, the plenary will decide by a simple majority if the bill is rejected or if it can proceed further by submitting it to the relevant Parliamentary Committee for detailed discussion. Once discussed at the Parliamentary Committee stage, the bill is then debated in the plenary, where the voting on the bill also takes place. This stage is the final one and it is known as the third reading. Most of the time, no substantial discussions take place at this stage, since the positions of political parties have already been formed. Laws are approved by a simple majority of the representatives present and voting,18 and, once they have been passed, the Office of the President of the Republic is notified of their passing. According to Article 52 of the Constitution, the President of the Republic will within 15 days of such a submission issue the law by promulgating it in the Government Gazette of the Republic, unless he exercises his right to return the law back to the House for reconsideration, according to Article 51 of the Constitution, or decides to refer the Law to the Supreme Court in accordance with Article 140 of the Constitution. In the event that the House of Representatives, following the re-examination of the bill under Article 51 which has to take place within 15 days of such a submission,19 abides by its decision, the President must issue the law in question, unless he exercises his constitutional right of referral to the Supreme Court so that it can rule on whether or not the law is in keeping with the Constitution or EU law. If the Court rules that it is, then it is promulgated immediately and if not, then it is not promulgated. Laws enter into force on promulgation in the Government Gazette of the Republic or on the date stipulated in the law.



18 Article 19 ibid

78 of the Constitution. art 51.

Legislation in Cyprus  115

6.2.5.  Enactment of Secondary Legislation Secondary legislation, as is explained above, is issued by the executive. Most of the time, the enabling law provides for such power to be vested to the Council of Ministers or to the competent minister. Secondary legislation can take the form of regulations, decrees, notifications or orders. Apart from regulations, all other forms of secondary legislation come into force following their publication in the Official Gazette. It should be noted again that this form of legislation is used to regulate issues of formalities or technical issues with no policy relevance (technical specifications, application forms etc). Regulations might regulate issues of more importance; however, they need to be within the limits permitted by the enabling law, as explained above. In order to be enacted, regulations need to be approved by the House of Representatives. This is provided for in the law and, in particular, Article 3 of the Law on the Submission to the House of Representatives of Regulations Enabled by Law, which was enacted in 1989, repealing earlier legislation. According to the provisions of this law, if within 60 days of the submission of the regulations the House of Representative does not introduce amendments in whole or in part to such regulations or does not reject them, they will have to be published in the Official Gazette and enter into force. In practice, this puts an administrative burden on Parliamentary Committees and the House in general to act within the 60-day deadline.

6.3.  Checks and Balances The Constitution introduces procedures which allow for the control of all legislation proposed or enacted in order to identify their conformity with the Constitution or with the provisions of European law. Article 179(2) of the Constitution provides as follows: No law or decision of the House of Representatives or any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this constitution or any obligation imposed to the Republic because of its Membership to the European Union.

The competent body to exercise such control is the Supreme Constitutional Court. This can be done in two ways following two different procedures, the first of which relates to legislation already enacted and in force in the Republic. Article 144.1 of the Constitution provides that: 1.

A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any ­provision thereof material for the determination of any matter at issue in such proceedings and ­thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court.

The ex post control of the constitutionality of legislation or of its conformity with provisions of EU law cannot be raised by the Court upon its own motion, but needs to be raised by

116  Nicoletta Ioannou one of the parties to the proceedings. It should be noted that based on the constitutional provisions, this control could only be exercised by the Supreme Constitutional Court and thus any other court where such a question was raised had to refer it to the Supreme Court. Following the enactment of a new law on the application of justice, based on the doctrine of necessity, to overcome the difficulties that occurred in 1963 as described above, the issue can be decided in front of the court where which such an issue is raised. A decision of the Supreme Court is final and constitutes a binding president, whereas a decision of a lower court can be appealed. It should be noted that the Court during such a procedure is required to check the issues of constitutionality or conformity with EU law only in those cases where this is necessary in relation to the outcome of the dispute pending before the Court. In principle, in cases where the legislation contains provisions which are contrary to the Constitution or are not in conformity with EU law, alongside other provisions that do not breach the Constitution or EU law, only the problematic provisions are void, unless of course the remaining part of the legislation cannot stand alone. Under the Constitution of the Republic of Cyprus, the ex ante control of legislation to identify its compliance with the Constitution and its conformity with EU law is also possible. This is based on the provisions of Article 140 of the Constitution, which provides as follows: The President and Vice President20 of the Republic acting jointly any, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified provision thereof is repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decisions or any provision thereof discriminates against either of the two Communities. 2. The Supreme Constitutional Court shall consider every question referred to it under paragraph 1 of this Article and having heard arguments on behalf of the President and the Vice President of the Republic and on behalf of the House of Representatives shall give its opinion on such question and notify the President and the Vice President of the Republic and the House of Representatives accordingly. 3. In case the Supreme Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution such law or decision or such provision thereof shall not be promulgated by the President and the Vice-President of the Republic. 1.

6.3.1.  The Techniques, Style and Structure of Legislation The traditional structure of legislation in a common law system, which divides the legislation into three main parts (ie, the preliminary, the substantive, which also includes administrative issues, and the final provisions) is followed. The first part (the preliminary provisions) includes a long title, a preamble where this is necessary, a short title, definitions, a purpose

20 As explained above, all powers that are conferred by the Constitution jointly to the President and Vice President of the Republic are now exercised only by the President under the doctrine of necessity.

Legislation in Cyprus  117 clause and an application clause, which in many cases is drafted in reverse order to include the exemptions from its application. The preamble is of particular importance in legislation transposing EU law, where reference to the EU legislation to be transposed is made. The second part on substantive provisions is the main part of the legislation and includes all articles that provide rights and impose obligations in terms of the application of the law. Administrative nature provisions such as the establishment of an administrative body and the transfer of powers to a body or administrative authority are also included. In this part, we can also find the creation of offences, the provision of sanctions, powers of the Supreme Constitutional Court and where applicable the administrative penalties, the right to submit an administrative objection or recourse and judicial review. The final provisions include the enabling clause for secondary legislation, the entry into force of the legislation if such a date is different from the date of the promulgation of the law and, where applicable, transitional provisions and consequential amendments or repealing of legislation. Annexes are also included in the final provisions and are used to cover technical issues. As far as secondary legislation is concerned, in addition to the above, it should be noted that all provisions of the legislation must include issues which are provided for in the enabling provision of the law. One example is that a creation of an offence or the imposition of penalties can only be inserted if the enabling provision in the law expressly provides for this. In addition, all provisions in the secondary legislation must be in accordance with the law and must not create any discrepancies.

6.3.2.  Legislation in Electronic Form The availability of legislation online is in my opinion an important aspect of the process. Users of legislation are not only lawyers and government officials, but also laymen who need to have easy and user-friendly access to it. The Official Gazette of the Republic, where all legislation is published in order for it to enter into force, can be found online in electronic form free of charge. Another important source of law online in Cyprus is Cylaw, which was set up in January 2002 as a non-profit database to provide free and independent information. Also, the websites of competent ministries and departments feature the text of important pieces of legislation that they are enforcing.

6.4.  Evaluation and Better Regulation In the last few years, a government initiative aiming at better regulation was introduced as part of a general strategy on modernisation and reforms in administration. However, up to now, in practice no real efforts to address issues like simplicity of legislation, legisprudence, the quality of drafting and uniformity have been made. No concrete measures have been adopted to facilitate such an aim and no real reforms have been encouraged. Issues like a lack of professionalism in legal drafting have not been addressed effectively. Drafters are civil servants with only practical experience in the field and little training. It is therefore an issue where it remains to be seen if real changes will be brought about.

118  Nicoletta Ioannou

Further Reading Emilianides, AC, Constitutional Law in Cyprus (Liuwer Law International, 2014) Guide to the International Traties, Law Office of the Republic of Cyprus Loizou, AN, Constitution of the Republic of Cyprus, Nicosia, 2001 Lysandrou, D, Senior Counsel of the Republic, Lecture on the Drafting Legislation, Lecture for the Law Office of the Republic of Cyprus (www.law.gov.cy) Markides, A, Former Attorney General of the Republic, Lectures on Constitutional law, Lectures for the Cyprus Bar Nicolaou, I, The control of the Constitutionality of laws and of the Assignment of functions to the organs in Cyprus (in greek language) (Ant. Sakkoulas Publishers, 2000). Polyviou, PG, Cyprus, a study in theory structure and method of the legal system of the Republic of Cyprus, published in Cyprus (Chrysafinis &Polyviou, 2015).

7 Legislation in the Czech Republic ROBERT ZBÍRAL*

Context The Czech Republic, established in 1993, is one of the youngest states in Europe. After 40 years of communist rule broke down in 1989, it underwent both economic and d ­ emocratic transformation and a complete overhaul of legal order. According to Article 1(1) of the Czech Constitution (CC),1 the Czech Republic is a unitary and democratic state governed by the rule of law. Its political system is parliamentary democracy based on the division of powers. The bicameral Parliament consists of the Chamber of Deputies (200 members) and the Senate (81 members), the former chamber playing a more prominent role in a­ dopting legislation. The activity of the government in setting legislative policy is constrained by internal and external factors. As the Constitutional Court has frequently exercised the right to review the constitutionality of legal acts, it swiftly became an important actor that has shaped the rules of legislative process and its outcomes. While law-making in the Czech Republic suffers from various shortcomings, the overall standard is currently comparable to traditional democracies in Western Europe.

7.1.  Definition of Legislation and the Hierarchy of Norms The Czech Republic is a classic representative of continental legal systems based on the principles stemming from the formal and material rule of law, which is more appropriately termed Rechtsstaat in Central European legal tradition. Many of these principles, such as legal certainty or non-retroactivity, are not explicitly listed in the CC, but they are ­traditionally extracted from the general clause in the already cited Article 1(1) CC. Legal acts (written law) are the primary source of regulation (governance), of which statutes2

* The support of Czech Science Foundation (project no. 17-03806S) is acknowledged. 1 Constitutional Act no 1/1993 Coll, English translation available at: www.psp.cz/en/docs/laws/constitution. html. 2 The English translation of the Czech term zákon is variable, meaning the terms ‘act’, ‘statute’ and ‘law’. I will apply the first two interchangeably, as ‘law’ could have a wider meaning in English as well (translated into Czech as právo).

120  Robert Zbíral adopted by the Parliament play by far the most important role.3 Legal acts are sorted into various categories that have different levels of legal force and this determines the position of a given legal act within the hierarchy of norms.

7.1.1.  The Constitution and Constitutional Acts The Czech Republic has a polytextual (multi-source) constitution. The so-called ‘constitutional order’ (Article 112 CC) consists of the CC itself, the Charter of Fundamental Rights and Freedoms4 and other constitutional statutes adopted according to the CC. All parts of the constitutional order have the same legal force and represent the supreme law within the Czech legal order. As indicated by the definition in Article 112 CC, constitutional order is seemingly defined formally through the special procedure by which the statute in question is adopted (see section 7.2.5). Overall, 16 amendments to the CC or constitutional acts have been adopted since 1993, the majority of them relating to (minor) changes of Czech borders, as any change to the territory of the state must be approved by a constitutional statute (Article 11 CC).5 The Czech constitution-maker is not omnipotent even if it follows the prescribed legislative procedure. The CC contains the so-called material core that prohibits ‘any changes in the essential requirements for a democratic state governed by the rule of law’ (Article 9(2)). The CC neither specifies what the content of these essential requirements is, nor who may interpret and enforce the rule.6

7.1.2.  (Ordinary) Statutes Constitutional order represents the apex of the Czech legal system, but the behaviour of subjects on the Czech territory is predominantly affected by ordinary statutes adopted by the Parliament in line with the procedure anticipated by the CC (see section 7.2). Constitutional and ordinary statutes together embody what is traditionally labelled as primary legislation.7 Statutes serve as foundations for the exercise of state power and at the same time limit its exercise vis-a-vis the individual. The CC provides that: ‘State authority … may be asserted only in cases, within the bounds, and in the manner provided for by statute’ (Article 2(3) CC) and that ‘all citizens may do that which is not prohibited by law; and nobody may be compelled to do that which is not imposed upon them by law’ (Article 2(4) CC). These requirements are in practice exemplified in the so-called reservation

3 However it has become accepted that precedent might also function as the source of law; see in general M Bobek et al, Judikatura a právní argumentace (Prague, Auditorium, 2013) 101–46. The binding nature of the CC’s case law is explicitly mentioned in art 89(2) CC. 4 Constitutional Act no 2/1993, English translation available at: www.psp.cz/en/docs/laws/listina.html. 5 All data on legislation and legislative process, if not stated otherwise, are part of a large dataset on Czech legislation developed by R Zbíral, J Lysek and J Bílek. 6 For a detailed overview of the positions in the doctrine, see eg M Tomoszek, Podstatné náležitosti ­demokratického právního státu (Prague, Leges, 2015). 7 However, the term is not generally used in the Czech doctrine.

Legislation in the Czech Republic  121 of statute, meaning that any obligations imposed on individuals might be prescribed only by acts of the Parliament (and also Article 4(1) of the Charter of Fundamental Rights and Freedoms).8 The ­reservation of statute has significant repercussions on the structure of the Czech legal order (see section 7.1.3). Apart from formal requirements of the legislative process, there are material conditions that all statutes must meet. In general they must be in conformity with the constitutional order, including the protection of fundamental rights. The meeting of both formal and material criteria is subject to judicial review by the Constitutional Court (CCC) (see section 7.2.6 for details). Overall, 2,396 statutes were adopted between 1993 and 2018.9 While the legislative output has been quite stable over time and depends mostly on political situation, there is a widespread critique present that considers the production excessive and feels it has a negative effect on the quality of legal regulation in the Czech Republic.10 Formally, there are two types of statutes – new statutes and amendments of the existing statutes, the latter accounting on average for about 80 per cent of the total.11 There is obviously high variability between statutes in terms of their length12 and saliency.13 If we look into the content of the statutes, about 20 per cent of primary legislation can be classified as civil law, while the rest covers public law matters (of those, 80 per cent is administrative law, 13 per cent procedural law, 4 per cent constitutional law and 3 per cent penal law).14 The validity of any statute is conditioned on its promulgation and the manner in which statutes are promulgated shall be stipulated by a statute (Article 52 CC). In the Czech Republic, all primary legislation needs to be published in the official Collection of Laws.15 This has a paper form and consists of issues that are released on an almost daily basis.16 The manner in which the legislation is published and made accessible to the public has been widely criticised for suffering from various deficiencies and for not reflecting opportunities provided by modern technologies.17 Therefore, preparations for the introduction of an electronic version of the Collection of Laws (eSbírka) started in 2009. The project was delayed several times and even though in 2016 a new statute on the Collection of Laws was adopted that should have come into force from 2020,18 for reasons discussed in section 7.4.2 below, the new earliest date of its entering into force has been postponed to 2021.

8 See P Mlsna and A Bahenská, ‘Reservation of Statute in a Democratic State Respecting the Rule of Law’ in M Tomášek (ed), Czech Law between Europeanization and Globalization (Prague, Karolinum, 2010) 145. 9 All data on number of legal acts were extracted from the legal database ASPI. 10 The so-called ‘hypertrophy of law’ thesis; see, eg, O Novotný, ‘Hypetrofie práva, její aspekty a jak jí čelit’ (2016) 154 Právník 619. 11 The share of amending laws has increased rapidly and is currently greater than 95 per cent. 12 The longest act adopted had 171,000 words and the shortest 38 words; the average is 5,400 words. 13 For an examination of the saliency of Czech laws, see R Zbíral, ‘Které české zákony jsou nejdůležitější? Hledání objektivních metod výběru’ (2015) 48 Správní právo (Legislativní příloha) 248. 14 Data from F Cvrček et al, Legislativa: Teoretická východiska a problémy (Plzeň, Aleš Čeněk, 2017) 40–41. 15 Regulated by Act no 309/1999 Coll (Act on the Collection of Laws and International Treaties). 16 The scanned (PDF) versions of the Collections of Laws are available at: https://aplikace.mvcr.cz/sbirka-zakonu. 17 See eg J Plachý, ‘Úloha Sbírky zákonů při publikaci právních aktů moci výkonné’ (2015) 23 Časopis pro právní vědu a praxi 153, 157–58. 18 Act no 222/2016 Coll (Act on the Collection of Laws and International Treaties).

122  Robert Zbíral

7.1.3.  Secondary Legislation Secondary (sub-statutory, executive) legislation forms an indispensable instrument of governance of any modern democratic state, as the efficient exercise of public administration presupposes the regulation of details of concrete matters by legal acts that might be changed with more flexibility.19 The CC anticipates two main types of secondary legislation: –– Governmental regulations (nařízení, also translated as ‘order’ or ‘decree’): the government is entitled to issue regulations in order to implement statutes, while regulations shall at the same time remain within the bounds of the given statute (Article 78 CC). Regulations shall be in conformity not only with the implemented statute, but also with all other primary legislation and it may neither amend the content of primary legislation nor regulate matters reserved for primary legislation.20 Overall 1,801 governmental regulations were adopted between 1993 and 2018 – the output was relatively stable. –– Ministerial ordinances (vyhláška, also translated as ‘regulation’ or ‘order’): the ministries21 are entitled under the CC to issue ordinances if they are authorised to do so by a statute (and not, for example, by regulation), if they remain within the bounds of the given statute and if the statute explicitly contains a provision authorising issuance of the given ordinance (Article 79(3) CC). Overall, 4,866 ministerial ordinances were adopted between 1993 and 2018 – the output has been slowly increasing. The relationship between primary and secondary legislation forms one of the most controversial aspects of law-making in any country and the Czech Republic is no exception. On the one hand, the CCC proclaims that it would be absurd to insist that even the slightest obligation shall be imposed only by a statute and that the constitutional right of the executive to issue secondary legislation is a reflection of the division of powers, so the legislature may not prohibit or (even indirectly) empty the executive’s role.22 With reference to the reservation of statute and the corresponding principle of supremacy of statute, the CCC has made the requirements for issuing secondary legislation considerably stricter than the constitutional framework implies.23 As legislative practice follows this case law,24 the resulting balance is heavily tilted in favour of primary legislation, and governance in the Czech Republic is dominantly based on statutes. The constrained position of the Czech executive in issuing secondary legislation has met with criticism from certain scholars,25 but there is no indication that the approach will change in foreseeable future.

19 Paraphrased from decision Pl ÚS 23/02, 30 June 2004. 20 For more details, see, eg, R Suchánek, ‘Čl. 78’ in L Bahylová et al (eds), Ústava České republiky: komentář (Prague, Linde, 2010) 890–96. 21 It should be noted that ministries are not the only subjects that could issue ordinances; other central administrative bodies (eg, the Czech Mining Authority) or central independent organs such as the Czech Central Bank are also authorised to do so by art 79(3) CC. 22 See, eg, decision Pl. ÚS 7/03, 18 April 2004. 23 Latest summary in decision Pl ÚS 24/17, 11 November 2018. 24 P Zářecký, ‘Zákonná zmocnění pro vládu, ministerstva a jiné správní úřady k vydávání prováděcích právních předpisů’ (2007) 40 Správní právo (Legislativní příloha) 65. 25 J Kysela and M Kokeš, ‘Role vlády v procesu právotvorby v České republice se zřetelem k efektivitě vládnutí’ (2018) 51 Správní právo (Legislativní příloha) 150, 156–61.

Legislation in the Czech Republic  123 Publication of secondary legislation in the Collection of Laws is surprisingly not required by the CC (see Article 52 CC), but such an obligation is set by the statute.26

7.1.4.  Legislation of Local Authorities The territorial self-government in the Czech Republic is divided into two layers: municipalities (approximately 6,200) and regions (13 plus the capital city of Prague) (Article 99 CC). There are two types of legal acts that local authorities may issue:27 –– Local authorities are listed next to the ministries in Article 79(3) CC and are therefore entitled to issue secondary legislation. These acts are called regulations (nařízení, of municipalities or regions) and shall regulate only matters in which a statute delegates the exercise of state administration to local authorities (see Article 105 CC). Between 1993 and 2018, 1,276 regulations were adopted by the regions and 7,364 by the municipalities. –– Local authorities are also entitled to issue legal acts within the limits of their own jurisdiction (Article 104(3) CC).28 Compared to the previous category, these acts, which are called generally binding ordinances (obecně závazné vyhlášky), do not represent the exercise of delegated state powers, but are autonomous, aiming to regulate matters that the local authorities are entrusted to administer in their independent competence by a statute.29 Between 1993 and 2018, all of Czech municipalities together adopted 52,357 generally binding ordinances. All legal acts issued by local authorities must meet the general conditions (form, structure etc) applied to any other legislation. They shall be only adopted by organs stipulated in the relevant statutes (eg, council of the municipality or the region) and their validity presupposes publication on the official notice board (for municipalities) or bulletins of regional legislation (for regions).

7.1.5.  International and EU Law Since the amendment of the CC in 2001, the Czech Republic has been a monist state. Promulgated international treaties to which the Parliament gave consent form part of the Czech legal order and have primacy over statutes (Article 10 CC). The CCC even ruled that treaties on human rights are part of the constitutional order.30 Membership in the EU is constitutionally based on Article 10a CC; this provision also opens up the Czech legal order to EU primary and secondary legislation. According to

26 § 2(1) of Act no 309/1999 Coll. 27 On the law-making activities of local authorities, see S Kadečka, ‘Právotvorba místní (a regionální) samosprávy’ in S Kadečka et al (eds), Právní regulace místní (a regionální) samosprávy (Brno, Masarykova Univerzita, 2008) 281. 28 Although regions could also adopt these legal acts, in practice they almost never exercise the option. 29 See eg § 10 of Act no 128/2000 Coll. 30 In a decision on the position of the European Convention on Human Rights: Pl ÚS 36/01, 25 June 2002.

124  Robert Zbíral the rich case law of the CCC, EU law has primacy over statutes, but not the constitutional order, and the transfer of competences shall not breach the material core of the CC.31 The implementation of EU law has vastly influenced the legislative process and its outcomes. In the first years after accession, the adaption of public administration was slow, despite the publication of numerous methodological guidelines, training of civil servants and growth of investments into public administration.32 However, the s­ ituation has slowly improved and currently the transposition record of the Czech Republic is about average among the Member States.33 Due to the principle of the reservation of statute, in comparison to other jurisdictions, a high share of EU obligations are implemented through primary legislation, while about 30 per cent of adopted Czech statutes are directly or indirectly affected by EU law.34

7.2.  Organisation and Procedure of the (Statutory) Law-Making The basic framework of the law-making process and the role of all involved institutions are set out in the CC, while details of internal procedures of relevant actors related to the process are prescribed at the statutory level for the Chamber of Deputies (ChofD) (namely §§ 86–1070),35 the Senate (namely §§ 98–113)36 and the CCC (namely §§ 64–71).37 The executive phase of law-making and the role of the government, together with the formal requirements of legal acts (see section 7.4.1), are thoroughly specified in the Legislative Rules of the Government (LRG). The LRG were adopted as a governmental resolution38 and are obligatory only for ministries and other central bodies of public administration (Article 1 LRG), but certain parts of them are generally respected by other subjects as well. The CC grants legislative initiative to the government, deputy of the ChofD, group of deputies of the ChofD, the Senate (as a whole) and regions (Article 41(2) CC). The last two subjects account on average for less than 6 per cent of proposals and are therefore rather insignificant agenda setters. As in any parliamentary democracy, the crucial role in shaping

31 For more details, see R Zbíral, Přenos pravomocí členských států na Evropskou unii: cesta bez zpátečního lístku? (Prague, Leges, 2013) 58–64. 32 The Czech legislative and institutional framework for implementation of EU law is summarised in M Whelanová, ‘Implementace práva Evropské unie do českého právního řádu’ (2009) 147 Právník 263. 33 See the Commission’s scoreboard at: http://ec.europa.eu/internal_market/scoreboard/performance_overview/ index_en.htm. 34 For a thorough quantitative analysis, see R Zbíral, ‘Evropeizace českých zákonů 1998–2013: Empirické údaje o míře vlivu práva EU a dopadech na legislativní proces’ (2015) 23 Časopis pro právní vědu a praxi 229. 35 Act no 90/1995 Coll (Rules of Procedure of the Chamber of Deputies). An English translation is available at: https://www.psp.cz/en/docs/laws/1995/90_index.html. 36 Act no 107/1999 Coll (Rules of Procedure of the Senate). An English translation is available at: https://www. senat.cz/informace/zakon106/zakony/zak107-eng.php. 37 Act no 182/1993 Coll (Act on Constitutional Court). An English translation is available at: https://www.usoud. cz/fileadmin/user_upload/ustavni_soud_www/Pravni_uprava/AJ/Constitutional_court_act_182_1993.pdf. 38 Resolution of the Government no 188, 19 March 1998. The current version is available at: https://www.vlada. cz/cz/ppov/lrv/dokumenty/legislativni-pravidla-vlady-91209.

Legislation in the Czech Republic  125 the legislative agenda should be reserved for the government (see section 7.3). In Western European states with similar political systems, the executives propose about 85 per cent of bills;39 the Czech figure is significantly lower (on average 58 per cent) due to the high level of activity of deputies in proposing statutes (on average 36 per cent). Despite this imbalance, almost all elaborate and complex bills are proposed by the government.

7.2.1.  The Executive Phase of Law-Making The process of preparing and adopting bills within the executive is formalised by the LRG (Articles 2–12). The first version of the bill, including the explanatory and regulatory impact assessment (RIA) reports, are drafted by the ministry under whose competence the matter regulated by the bill falls. The bill is then sent to other ministries and public bodies for consultations. Received comments might have both a legislative and a political background and must be either implemented or otherwise resolved through negotiations by the proposing subject.40 Many bills are withdrawn after this phase due to insufficient support. The adapted draft subsequently proceeds to the Legislative Council of the Government (LCG) and its working groups who review its formal and material quality; their recommendations are again implemented in the draft (see section 5.1). The final text of the bill is formally voted upon by the government (cabinet) and any disagreements are traditionally already ironed out at that point. The whole executive phase usually takes around six months, but could well exceed one year in the case of controversial proposals.

7.2.2.  The Law-Making Phase in the Chamber of Deputies Bills from both the government and all other proposers have to be first presented to the ChofD (Article 41(1) CC).41 The whole process in the Chamber lasts on average 140 days and is divided into three stages: –– First reading: the procedure starts in the plenary with the presentation of the bill by the submitting party, followed by general debate. There is no time limit on this; the average length of the debate is 20 minutes, but the most controversial drafts were debated for over 10 hours. If the bill is not rejected after the debate, it is referred to the committees (one of them is selected as the guarantee committee). The committees have 60 days to discuss the bill and submit amendments, and deliberations end with a resolution that recommends either adopting or rejecting the bill. –– Second reading: the reading starts with a plenary debate, during which any deputy may propose amendments to the bill.

39 See S Saleigh, ‘Political Prowess or “Lady Luck”? Evaluating Chief Executives’ Legislative Success Rates’ (2009) 71 Journal of Politics 1342. 40 Interministerial consultations are used extensively to influence the form and content of the bills; more than 800,000 comments were submitted to bills proposed between 2010 and 2017. 41 Detailed analysis of the legislative process in the Parliament is provided by P Kolář et al, Parlament České republiky (Prague, Leges, 2013) 227–304.

126  Robert Zbíral –– Third reading: this phase again consists of plenary debate; deputies consequently vote on each proposed amendment and finally on the bill as a whole. A simple majority of deputies present suffices; the lowest quorum is set at one-third of the total (67 deputies – Article 39(1) CC). The Czech Republic has specific executive–legislature relations, as the ChofD proceeds quite independently from the government in its law-making activities. The high share of deputies’ bills was already mentioned; 35 per cent of these bills are adopted. The success rate of bills submitted by the government is 78 per cent, but this figure hides the fact that the majority of bills are significantly altered during their journey through the ChofD. There are on average 15 amendments proposed to each bill from committees or deputies and almost 60 per cent of them succeed; the institutes of complex amendments42 and wild riders43 are regularly used.44 The situation has two causes: first, many Czech governments had only a minimal majority and the coalitions were not politically coherent; and, second, governmental bills do not enjoy preferential treatment in the legislative process, nor are they in any way ‘protected’ from changes. For example, the government has a right to express its view on all bills (Article 44 CC), but its opinion is only advisory and is often disregarded in practice. The ‘improvised parliamentary culture’45 in the ChofD and the weak position of the government has negatively affected Czech legislative policy and similarly to the constrained role of the government in issuing secondary legislation, it has regularly been criticised by scholars.46 However, any efforts to change the legislative framework and strengthen the competences of the executive have failed.47

7.2.3.  Law-Making in the Senate Once the ChofD approves the bill, it forwards it to the Senate without undue delay (Article 45 CC). The Senate, within a 30-day deadline, has five options as to how to handle the bill (Articles 46–48 CC): (1) to approve it without any amendments (the bill then proceeds to the President); (2) to declare its intention not to discuss the bill (the bill then proceeds to the President); (3) not to do anything (the bill then proceeds to the President after the deadline passes); (4) to reject the bill and return it to the ChofD (which will vote on the bill again and may overrule the veto with an absolute majority of deputies); and (5) to adopt amendments to the bill and return it to the ChofD (the Senate version of the bill may be approved by a simple majority; if the majority is not achieved, the ChofD may approve the original version of the bill by an absolute majority). In practice, the first three possibilities on average 42 The whole text of the bill is replaced with a different version of the text. 43 An amendment to a statute that is not thematically related to the negotiated statute. Wild riders were called unconstitutional by the CCC (decision Pl ÚS 77/06, 15 February 2007), but are still used. 44 For more details, see L Linek and Z Mansfeldová, Český parlament ve druhé dekádě demokratického vývoje (Prague, Sociologický ústav, 2009) 70–72. 45 As coined by J Wintr, Česká parlamentní kultura (Prague, Auditorium, 2010). 46 See eg J Vedral, ‘K příčinám nynějšího stavu právního řádu a k možnostem vlády při jeho (re)formování’ in A Gerloch and J Kysela (eds), Tvorba práva v České republice po vstupu do Evropské unie (Prague, ASPI, 2007) 87; Kysela and Kokeš (n 25). 47 J Kysela, ‘Klepání na bránu očistce. K opakovaným snahám o změnu úpravy zákonodárného procesu’ (2013) 21 Časopis pro právní vědu a praxi 111.

Legislation in the Czech Republic  127 cover almost 70 per cent of the bills, while about 8 per cent of bills are rejected (of those, about two-thirds are overruled by the ChofD, while the rest are not adopted) and 22 per cent are returned with amendments (of those, about 60 per cent are approved by the ChofD in the Senate version, the rest being approved in the ChofD version).48 As is clear from the description of the procedures and empirical data, the Senate occupies a much weaker position in the legislative process than the ChofD and 65 per cent of the public regard the institution as useless and even support its abolition.49 However, the stance is caused mainly by a lack of knowledge of the Senate’s activities. Most informed evaluators agree that while the influence of the Senate on the legislative output is indeed limited, it has an indispensable role to play in the legislative process and its interventions are generally assessed positively.50

7.2.4.  The Role of the President in Law-Making At the end of the legislative process, the bill approved by the Parliament has to be signed by the President, who has a right to veto the bill with reasons given within a 15-day deadline. If the President exercises this right, the bill returns to the ChofD, which will vote on the bill again and may overrule the veto by an absolute majority of deputies (Article 50 CC). Since 1993, presidents have vetoed fewer than 80 bills; in almost all cases, the ChofD found the required majority and re-affirmed its will.51

7.2.5.  Special Legislative Procedures Apart from the analysed ‘ordinary’ legislative procedure, the CC prescribes other ­procedures with modified courses of proceedings and different roles of actors that apply in specific conditions: –– Changes of constitutional order (Article 39(4) CC): any amendments to the constitutional order must be approved by three-fifths of all deputies and three-fifths of present senators. The Senate cannot be outvoted by the ChofD. The President cannot veto the resulting act (Article 62(h) CC). Only 13 per cent of proposals to amend the constitutional order have succeeded since 1993, often because the Senate opposed the adoption. –– Statutes requiring approval by the Senate (Article 40 CC): in the case of statutes that regulate elections, the Senate cannot be overruled – a simple majority suffices in both chambers. –– State budget (Article 42 CC): only the ChofD adopts the state budget; the Senate is excluded from the process.

48 Data from J Hruška, ‘Role Senátu v českém politickém systému pohledem kvantitativní analýz’ in J Kysela (ed), 20 let Senátu Parlamentu České republiky v souvislostech (Prague, Leges, 2016) 113. 49 See the results of a poll from March 2018, available at: www.protext.cz/novy/press-release.php?id=15171. 50 See, eg, M. Kokeš, ‘Senát jako funkční pojistka ústavní konformity zákonodárného procesu’ in Kysela (n 46) 136. 51 For more on the signature and veto of the President, see Z Koudelka, Prezident republiky (Prague, Leges, 2018) 154–66.

128  Robert Zbíral

7.2.6.  The Constitutional Court as a Negative Law-Maker The description of the legislative process would not be complete without highlighting the role of the CCC,52 which has the right to annul statutes ex post if they are in conflict with the constitutional order. The CC foresees both abstract (Article 87(1)(a)) and concrete (Article 95(2)) constitutional review: in the first case, the petition to review a statute might be submitted by the President or a group of at least 41 deputies or 17 senators (§ 64(1) of the Act on the Constitutional Court) and in the second case by any ordinary court if the statute in question is applied during the resolution of a specific case. The CCC has reviewed 322 statutes or their parts since 1993; in almost half of the cases, the petitions were at least partly successful and provisions of the statute in question were annulled. Courts were the most active initiators of review, followed equally by both groups of senators and groups of deputies.53 Most commentators argue that the activities of the CCC and even potentiality of its intervention cultivate the legislative process and its outputs;54 however, there are also numerous critics who claim that the CCC is too proactive in annulling and has usurped the position of the third parliamentary chamber.55

7.3.  Legislative Policy and Planning Legal acts cited in the previous section formally frame the law-making process in the Czech Republic, but do not regulate its material content in detail. Obviously all legal acts will, for example, guarantee the protection of fundamental rights or meet the rule of law principles, but this says little about what and how the legislation should regulate. This is a question of coherent and proper legislative policy and planning that consequently results in good governance. Some scholars and to a certain extent the CCC also argue that there is a right of the people to ‘good and effective laws’.56 One of the most important instruments that should contribute to that end is the evaluation of legislation, discussed in section 7.5 below. However, this section focuses on who sets and implements legislative goals and how; in other words, on the bigger picture than simply an evaluation of individual legal acts. Management of legislative policy is a complex process that shall be entrusted to one subject. In parliamentary regimes, this role is reserved for the executives. The Czech government should thus pursue this goal (see Article 1 LRG). The principal obstacle that prevents the formulation of effective legislative policy is the considerable influence exercised by other actors in the legislative process. The data and analysis given in section 7.2 above confirm the rather weak position of Czech governments mainly vis-a-vis the ChofD, which compromises their efforts to achieve a consistent legislative policy.

52 See also Kolář et al (n 41) 304–12. 53 Statistical data extracted from http://nalus.usoud.cz/Search/Search.aspx. 54 See the contributions in I Pospíšil et al, Soudcokracie, nebo judicializace politiky?: Vztah práva a politiky (nejen) v časech krize (Brno, MUNI, 2013). 55 See, eg, the contributions in Soudcokracie v ČR – fikce, nebo realita? (Prague, CEP, 2006). 56 See M Zámečníková, ‘Právo na dobré zákonodárství očima českého a německého spolkového ústavního soudu’ (2015) 48 Správní právo (Legislativní příloha) 438.

Legislation in the Czech Republic  129 Yet apart from the disadvantages related to other actors, Czech governments face severe internal hurdles. The proportional electoral system compels the creation of coalition governments comprising often quite diverse political parties, making the resulting agreement expressed in the governmental programme complex and ambiguous at the same time. This trend had worsened over time: the programme of the first government in 1993 had 7,600 words, but the length of the programmes of the governments formed in 2014 and 2018 rose to 16,500 and 14,100 words, respectively. There has also been limited continuity between successive governments in terms of the composition of participating parties, which inhibits long-term planning. The government applies an extremely sophisticated procedure with multiple layers and actors that aims to determine what legislation shall be proposed.57 At the beginning of its election period, an Outlook of Legislative Tasks of the Government is approved, which sets up plans for the next four years and is followed by annual Plans of Legislative Tasks of the Government. Both types of document have to be adopted by the government. However, the government does not really try to create a comprehensive programme with common objectives; usually, it simply endorses the legislative intentions proposed by individual ministries. The structure of the Outlook and the Plans reflects this formalistic approach: it is simply a list of proposals of legal acts sorted according to the bodies responsible for the drafting and timing of submission. There is little (two sentences maximum) or no justification as to why these legal acts will be adopted or how they contribute to meeting the government’s objectives.58 Tasks contained in the Plan are binding for the ministries, but practical implementation often lags behind as there are no sanctions and the government can always amend the plan. Similarly, there is no formal barrier that would prevent the submission of bills outside the scope of the plan, which is often done.59 All these factors contribute to the fact that thus far, there has been little effort to comprehensively plan legislative policy in the Czech Republic.

7.4.  Legislative Drafting and Requirements for a Draft of a Legal Act The Czech Republic has no body that specialises in legislative drafting; preparation of a draft is the responsibility of the subject proposing the given legal acts. This means that, for example, in cases of bills submitted by the ChofD deputies, it is up to them (or people to whom they delegate the task) to draft the bill. In case of the executive, the task is assigned to civil servants at individual ministries; in practice, lawyers from the legislative section usually cooperate with the relevant line sections. There is a general feeling that the quality of legislative drafters at the ministries is mediocre at best, first due to relatively low remuneration

57 For more details on the process, including accompanying diagrams, see: https://help.odok.cz/katalog-procesu/ nelegislativni-materialy/vyhled-a-plan-legislativnich-praci-vlady. 58 See the Plan of Legislative Tasks for 2019 at: https://www.vlada.cz/assets/media-centrum/dulezite-dokumenty/ Plan-legislativnich-praci-vlady-na-rok-2019.pdf. 59 J Vedral (n 46) 94.

130  Robert Zbíral compared to other legal professions and second because of the often heavy political interference. Very few individuals stay for a sufficient time to gain much-needed experience; most of the staff at the legislative sections are recruited as fresh graduates who move on after a couple of years (if not months) of service (for training programmes, see section 7.6 below).60

7.4.1.  Formal Requirements for a Draft of a Legal Act There are well-defined requirements for both the material and formal conditions of legal acts. The basic framework for the rules of legislative drafting is provided by the CC and legal acts cited above and elaborated upon further by the case law of the CCC.61 To summarise, all legal acts need to follow the core principles such as the adequacy and suitability of law, the compatibility and systemic logic of law, the balance between stability and dynamics of law, the publicity of law and inadmissibility of retroactivity.62 The material aspects are discussed in other sections of this chapter, but here I concentrate primarily on the formal aspects. A detailed framework of legislative drafting is set out in the LRG. The LRG are binding only for the executive and while other subjects commonly utilise them as useful guidelines, a breach of the LRG is not a basis for the invalidation of the resulting act.63 Article 2 LRG lists general requirements and emphasises that the drafting of each legal act must be preceded by a detailed analysis of the legal and factual situation. It instructs that legal acts will be compliant with legal acts of a higher legal force and EU and international law. In addition, the draft should be clearly structured and formulated unambiguously, understandably and in flawless language and style. Further, the LRG regulate in detail the particulars of various technical aspects of legislative drafting. Drafters who feel intimidated by the LRG may use a detailed and practical handbook prepared by a team of experienced civil servants from the Legislative Section at the Office of the Government.64 All proposals of legal acts must be accompanied by an explanatory report which is divided into general and special parts (Article 9 LRG). The former part contains the justification of the basic principles of the proposed legal act in light of the current legal framework and an assessment of its compatibility with the Czech constitutional order, international treaties and EU law. If the proposing subject prepares an RIA report which is attached to the bill, the thematically overlapping parts of the explanatory report only briefly summarise the RIA results. The special part of the explanatory report discusses in detail the objectives and content of each provision of the intended legal act.

60 The President of the Supreme Administrative Court commented (with only slight exaggeration) that ‘laws are nowadays written by children’; see the interview of 21 January 2014 at: www.ceska-justice.cz/2014/01/josef-bax a-zakony-dnes-pisi-deti. 61 For more details, see M Kokeš, Vybrané nedostatky zákonodárného procesu z pohledu teorie zákonodárství a judikatury Ústavního soudu ČR (Brno, Masarykova univerzita, 2014). 62 For more details, see Z Šín, Tvorba práva a její pravidla (Olomouc, Univerzita Palackého, 2000) 15–17. 63 Decision Pl ÚS 19/16, 13 December 2017. 64 J Kněžínek et al, Příprava návrhů právních předpisů: Praktická pomůcka pro legislativce (Prague, Úřad vlády, 2010).

Legislation in the Czech Republic  131

7.4.2.  Use of Electronic Instruments for Legislative Drafting Utilisation of information technologies may significantly enhance the efficiency of legislative drafting. Unfortunately, currently the Czech Republic is not among the forerunners in this field. The ODok information system forms the backbone service within the executive. It consists of several interconnected applications and databases that streamline the whole drafting process.65 The most important part is the eKLEP electronic library, which serves as a platform for the exchange of documents among relevant subjects.66 Each draft of legal acts and the accompanying documents (eg, explanatory reports) must be inserted into eKLEP (Article 2(5) LRG) and the whole subsequent process, including interministerial consultations, proceeds with the use of this database. However, the attributes of eKLEP are limited to this exchange platform; there is no specific instrument to actually develop the drafts of legal acts or other documents, so these are traditionally written, for example, in MS Word and are then posted on eKLEP. Moreover, various subjects apply different styles or formats (eg,. doc or.pdf files). Other actors in the legislative process such as the ChofD and the Senate use their own information systems, which are only partly compatible with ODok. The incoherent and fragmented environment for legislative drafting has negatively affected the quality of legislation and has regularly been criticised by both authors and addressees of legal acts.67 Therefore, already by 2009, the government had agreed to implement the eLegislativa project,68 which should have introduced modern instruments for the drafting and negotiation of legal acts. All drafts were to be developed and edited in obligatory electronic templates to increase uniformity of style and terminology, and amendments were to be directly linked to consolidated versions.69 eLegislativa should have been binding for all subjects participating in the legislative process, thus increasing the openness of law-making and the quality of its output.70 Both eLegislativa and eSbírka were due to be launched in January 2013, but despite the enormous qualitative and quantitative benefits of the projects, the whole endeavour was delayed several times and the new deadline for implementation has been postponed to 2021.71

7.5.  Evaluation of Legislation Various programmes aiming at improving the quality and efficiency of legislation and consequently regulation in general have become part and parcel of legislative policies in

65 ODok is an abbreviation of Exchange of Documents; see https://www.odok.cz. 66 eKLEP is an abbreviation of Electronic Library of Legislative Process; see https://apps.odok.cz/eklep. 67 Including the CCC, see decision Pl ÚS 77/06 (n 43). 68 The project is inherently tied to eSbírka, which aims to introduce electronic versions of the Collection of Laws (see section 7.1.2 above). For an analysis, see V Stupka, ‘E-Sbírka a e-Legislativa’ (2014) 5 Revue pro právo a technologie 185. 69 In other words, amendments to legal acts will not be treated as separate drafts that are only (and unofficially) linked with the previous version of the act. 70 Stupka (n 68). 71 J Reichl, ‘eSbírka a eLegislativa nejdříve v roce 2021’, 25 January 2019, http://ekonomicky-denik.cz/ esbirka-a-elegislativa-nejdrive-v-roce-2021.

132  Robert Zbíral many states, and the Czech Republic is no exception. Legislation could be evaluated both ex post and ex ante; in the latter case, one can distinguish between assessment of the legal quality of acts and their socio-economic impact. The Organisation for Economic Co-operation and Development (OECD) review of regulatory policy generally finds the Czech approach to be rather progressive compared to other OECD members: the ex ante evaluation scores are above average, while the ex post impact of legislation somewhat lags behind.72

7.5.1.  Ex Ante Evaluation All drafts of legal acts must meet at least the basic conditions of formal legislative quality; the government will serve as the main subject guaranteeing this objective (see section 7.3). In order to contribute to this goal, the government established the LCG as its advisory body in 1990.73 The LCG has approximately 30 members named by the government based on their legal expertise; the majority have a background in academia.74 The LCG is headed by a minister,75 but the whole body proceeds independently and members shall not be bound by any political or other instructions. With the exception of its chairman, all members perform their duties only on a part-time basis alongside their regular job. The LCG meets once a fortnight, the total number of sessions amounting to about 20 a year. The position and functions of the LCG are determined by its statute adopted by the decision of the government.76 The main task of the body is to review the quality of all legislative proposals (prepared within the executive) before they are submitted to the government. Specifically, it checks whether the proposals are compatible with the Czech constitutional order and other parts of the legal order, international obligations and EU law, if they are necessary, comprehensible and unambiguous, and if an RIA has been performed. Approximately 350 legislative proposals are annually submitted to the LCG, yet only the most important ones (about 30–90 a year) are discussed at meetings of the LCG; for the rest, the opinion of the LCG as a body is replaced by an opinion drafted by its chairman. The LCG quickly became an important player in the legislative process and its activities contribute to both formal and material improvements of draft legal acts.77 Despite the positive evaluation of the activities of the LCG, three caveats must be mentioned: first, while the government usually follows the recommendation of the LCG, its positions are non-binding and the political will sometimes prevails over the negative view of the experts; second, similarly to the previous point, political expediency sometimes dictates that a problematic proposal is simply granted an exception by the chairman of the LCG and does not have to undergo the full review by the plenary; and, third, even if the influence of the LCG were to guarantee flawless legislative proposals, amendments made after the bill is submitted to the further phases of the legislative process may completely rewrite the original version. 72 ‘Czech Republic’ in OECD Regulatory Policy Outlook 2018 (Paris, OECD Publishing, 2018) 178–79. 73 The legal basis for this is § 28a of Act no 2/1969 Coll (Act on Establishment of Ministries and Other Central State Bodies). 74 The list of members can be found at: https://www.vlada.cz/cz/ppov/lrv/clenove. 75 Usually it is the Minister of Justice or, less often, the Minister for Human Rights. 76 The currently valid statute can be found at: https://www.vlada.cz/assets/ppov/lrv/Statut_LRV---od-20160101. pdf. 77 See J Filip, ‘K postavení Legislativní rady vlády České republiky’ (2007) 15 Časopis pro právní vědu a praxi 203.

Legislation in the Czech Republic  133 The Czech Republic was one of the first post-communist states to introduce regular ex ante assessment of the socio-economic impact of legislation (RIAs). The first general RIA guidelines were adopted in 2007. However, the initial experience was rather disappointing, as the RIA process was criticised for its formalism and the weak level of independence of the RIA quality assessment.78 The government consequently implemented several reforms that resulted in the adoption of the latest RIA guidelines, which have been in force since 2016.79 RIA is conducted only for legislative and selected non-legislative materials proposed by subjects from the executive branch. This means that bills submitted by actors other than the government do not have to be (and are not in practice) preceded by RIA. Evaluation of impact will be performed before the decision about the content of a legislative measure is taken and generally applies for all legal acts. However, certain types of act are exempted altogether (eg, constitutional laws) and RIA is not necessary if the government provides for this within the annual Plan of Legislative Tasks; individual exemptions may also be awarded by the chairman of the LCG. If applicable, the subject proposing the bill will assess not only its social and economic impacts, but also, for example, its impacts on the international competitiveness of the Czech Republic, consumers, the environment, the equal treatment of men and women and the risk of corruption. The RIA guidelines provide a detailed methodology of how to calculate costs and benefits of possible solutions to the problem and how to rank the solutions.80 Ministries and other executive organs in charge of the given legal act proposal are also responsible for drafting the RIA report. The reforms established a Working Group for RIA as one of the working groups of the LCG. This is composed of about 20 experts (mainly from academia), meets once or twice a month and independently reviews the quality of RIA final reports. The Working Group classifies the reports on a four-point scale according to their suitability.81 The number of reports evaluated by the Working Group is around 80 per year; since its establishment, the body has been significantly more strict and has awarded bad scores more frequently. The impact of RIA on the legislative process and the quality of regulation in the Czech Republic is mixed. As even the score from the OECD verifies, the process has been visibly upgraded since its inauguration and RIA is generally taken quite seriously. On the other hand, those responsible for preparing RIA reports often lack the necessary experience and skills, which results in inadequate evaluations. It must be also acknowledged that many senior legislative drafters within the executive still consider RIA to be a waste of resources. However, probably the most serious objection against the RIA process is its innate limitation on the outputs of the legislative process. First, the most legal acts are not preceded by RIA at all because either the proposals are not submitted by the executive or they receive an exemption. Second, even if the RIA is performed, the selected solution could be compromised by subsequent changes to the proposal. Finally, a survey of Members of Parliament 78 See, eg, L Vítek, ‘Regulatory Impact Assessment in the Czech Republic’ (2012) 3 European Financial and Accounting Journal 63. 79 Obecné zásady pro hodnocení dopadů regulace (Prague, Úřad vlády, 2016), available at: https://www.vlada.cz/ assets/ppov/lrv/ria/aktualne/OZ_RIA_-novela_2016_uplne-zneni-FINAL.pdf. 80 See also J Plachý, ‘Nástroje k dokonalé legislativní tvorbě. Právní prostor’, 19 February 2016, https://www. pravniprostor.cz/clanky/ostatni-pravo/nastroje-k-dokonale-legislativni-tvorbe. 81 See ‘Institucionální zajištění procesu RIA’, https://ria.vlada.cz/ria/institucionalni-zajisteni.

134  Robert Zbíral reveals that almost none of them take the RIA results into consideration; in fact, many even do not know what the term means.82

7.5.2.  Ex Post Evaluation Ex post evaluation of legislation is significantly less developed in the Czech Republic than its ex ante counterpart. This is somewhat surprising, as there is a statutory obligation for ministries to monitor societal issues within their scope of competence and to analyse the results.83 Moreover, the already-cited RIA guidelines adopted in 2016 require ministries to conduct an ex post review of any existing legal act in relation to its efficiency. The objective is to find out if the principles of the regulation are still useful and whether they can be improved, revised or revoked. The review will be performed by the ministry ‘responsible’ for the act.84 However, there has never been any formalised mechanism for systematic ex post review; evaluations were done only on an ad hoc basis and had little impact in practice.85 In late 2017, the Office of Government published material that aimed to make the ex post review stage obligatory for almost all legal acts and to give the process a ­structured framework.86 The proposed material received numerous critical comments in the ­interministerial consultations and eventually did not proceed further. The current government has so far shown no inclination to take up the proposal.

7.6.  Teaching and Training Legisprudence There is a general consensus that legislative drafting is one of the most complex legal professions that simultaneously requires deep knowledge of the law and long-term experience. The latter is hard to gain because, for the reasons discussed above, only a few people remain in the civil service for a sufficient length of time. Under such conditions, the importance of knowledge of both the legal sector in which the person drafts legal acts and the formal rules of legislative drafting increases, as these may at least partially counterbalance the lack of practice. Unfortunately in this respect too, the Czech situation leaves a lot to be desired. There are four public law faculties in the Czech Republic with about 10,000 students in total and only one of them (located in Plzeň) offers an mandatory course relating to legisprudence. Students who wish to learn more about the topic have limited opportunities to do so, even in the selection of optional courses. The most advanced offer is provided by the faculty in Prague, where there are eight optional courses and students even have a chance

82 Závěrečná zpráva z Analýzy implementace a efektivnosti stávajícího nastavení procesu RIA v ČR (Prague, Úřad vlády, 2011), available at: https://www.vlada.cz/assets/ppov/lrv/ria/aktualne/Zaverecna-zprava-z-evaluaceucinnosti-RIA_final.pdf. 83 § 22 Act no 2/1969 Coll (Act on Establishment of Ministries and Other Central State Bodies). 84 See Obecné zásady pro hodnocení dopadů regulace (n 79) pt B (s 6). 85 Cvrček et al (n 14) 40–41. 86 Mechanismus systematického přezkumu účinnosti právních předpisů (Prague, Úřad vlády, 2017), available at: https://www.komora.cz/files/uploads/2017/11/ma_ALBSASXGMRL4.docx.

Legislation in the Czech Republic  135 to receive an (informal) diploma in legisprudence.87 Other faculties are much less generous; the only other selective course is taught in Brno, which emphasises the practical aspects of legislative drafting. It would be a mistake to expect that opportunities to learn about legisprudence increase once a person enters into practice. Actually, the training within the civil service lags behind that of the law faculties. All civil servants involved in legislative drafting need to take an exam covering the field, but there is no centralised programme to prepare candidates for the exam. Similarly, no public body provides a lifelong learning process that will increase the knowledge and skills of drafters. Certain activities were pursued with the support of EU structural funds – for example, the Ministry of the Interior implemented a project called ‘Supporting Environment for Improving Quality of Legislative Drafting’, which consisted of a series of lectures and the publication of a book on legislative drafting.88 Unfortunately, there was no follow-up once the project ended in 2011. There are other smaller events and training exercises are arranged within single ministries or other central public bodies, but these efforts have been fragmented and intermittent, and legislative drafters predominantly either self-educate or learn on the go from older colleagues. As the references in this chapter demonstrate, research in legisprudence is quite well developed in the Czech Republic. There are scholars who regularly publish on various mainly institutional aspects of the legislative process or deal with the practical aspects of legislative drafting. Articles related to legisprudence are regularly printed in general legal journals (Právník, Právní rozhledy and Časopis pro právní vědu a praxi); the Správní právo (Administrative Law) journal even has a special supplement dealing with legislation that is released twice a year. The majority of texts by authors mentioned in this chapter view the issues from a legal perspective and use doctrinal or normative methodology. Empirical aspects of the legislative process beyond the basic descriptive facts are covered considerably less and causal research using large datasets and inferential statistics is still in its infancy. The latter knowledge gap is caused by a generally low level of interest shown by Czech political scientists in relation to legislation and the legislative process.

7.7. Conclusion When one assesses the opinions of the majority of experts and the wider public on the quality of the legislative process and its outcomes in the Czech Republic, the overall impression would resemble one of a looming catastrophe. This critique may be divided into four headings:89 (1) hypertrophy of law (legislative inflation), meaning that there are too many legal acts adopted; (2) instability, where incessant amendments of legal acts weaken legal certainty; (3) lack of legislative policy, where changes to the legal order are made in

87 Only eight students received the diploma between 2016 and 2018. 88 See https://www.mvcr.cz/clanek/podpora-prostredi-pro-zkvalitneni-tvorby-pravnich-predpisu.aspx?q= Y2hudW09MQ%3d%3d. 89 See also Kokeš (n 61) 11–15.

136  Robert Zbíral insolation and without clear objectives; and (4) deficiencies in formal aspects of legal acts. For example, the President of the Supreme Court recently concluded that the situation is critical and compared it to a ‘legal jungle’.90 This chapter has described and discussed some of the drivers and empirical data that might provide ammunition for these widespread pessimistic views. However, even without challenging the factual correctness of the above-mentioned claims,91 I do not think there is any need to be so self-flagellating. My analysis focuses primarily on specific features of the Czech case: the impact of the reservation of law, the strong role played by the CCC, the weak position of the government in the legislative process, which affects its ability to lead coherent legislative policy or rather advanced the evaluation of proposed legal acts by the independent LCG. Yet even the impact of these factors could be in practice be either negative or positive depending on the circumstances of a concrete case and any hasty generalisations are problematic due to the complex nature of the legislative process. I firmly believe that any realistic evaluation of the conditions in which Czech legislation finds itself could only be achieved by placing it in a wider context and in comparison with other EU jurisdictions. Hopefully, this volume will contribute to that end.

Further Reading M Brunclík and M Kubát, ‘The Czech Parliamentary Regime after 1989: Origins, Developments and Challenges’ (2016) 8 Acta Politologica 5 J Filip et al, ‘Governance in the Czech Republic’ in N Chronowski et al (eds), Governmental Systems of Central and Eastern European States (Warsaw, Oficyna Wolters Kluwer Polska, 2011) 166 M Hrabálek and A Strelkov, ‘The Czech Parliament and European Integration’ in C Hefftler et al (eds), The Palgrave Handbook of National Parliaments and the European Union (Basingstoke, Palgrave Macmillan, 2015) 494 M Kindlová, ‘The Czech Republic’ in L Besselink et al (eds), Constitutional Law of the EU Member States (Deventer, Kluwer, 2014) 311 L Linek and Z Mansfeldová, ‘The Parliament of the Czech Republic, 1993–2004’ (2008) 13 Journal of Legislative Studies 12 R Zbíral, ‘Comparing the Intensity of Scrutiny for “Domestic” and Implementing Bills: Does Transposition of EU Law Reduce Political Contestation in National Parliaments?’ (2017) 24 Journal of European Public Policy 969

90 Interview of 28 January 2018, available at: https://www.info.cz/pravo/sef-nejvyssiho-soudu-samal-zakonyjsou-dzungle-nikdo-je-nezna-vsechny-je-to-kriticke-39854.html. 91 According to some sources, there is, for example, no legislative inflation in the Czech Republic; see Cvrček et al (n 14) 23–32.

8 Legislation in Denmark HELLE KRUNKE*

Context Denmark is a constitutional monarchy with a Constitution that dates back to 1849. Since 1953, Parliament (the Folketing) has had one chamber. Ministers as well as Members of Parliament can introduce bills. The legislative procedure is described in the Constitution and requires three readings in Parliament. The standing orders of Parliament provide a more detailed description of the legislative procedure. Demark has no ex ante court review of bills; however, the courts have the competence to review the constitutionality of legislation ex post. An interesting constitutional convention exists according to which Parliament’s standing committee on finances has the competence to approve extra expenditure, which has no legal basis in the Finance Act.

8.1.  Legislation in Denmark The Constitution is the highest norm of the hierarchy of norms. This means that legislation cannot violate the Constitution, but it does not mean that all legislation must have a legal basis in the Constitution. The Danish Constitution dates back to 1849 and the last revision took place in 1953. The procedure for amendment of the Constitution is described in Article 88: Should the Folketing pass a Bill for the purposes of a new constitutional provision, and the Government wish to proceed with the matter, writs shall be issued for the election of Members of a new Folketing. If the Bill is passed unamended by the Folketing assembling after the election, the Bill shall, within six months after its final passing, be submitted to the electors for approval or rejection by direct voting. Rules on this voting shall be laid down by statute. If a majority of the persons taking part in the voting, and at least 40 per cent of the electorate, have voted in favour of the Bill as passed by the Folketing, and if the Bill receives the Royal Assent, it shall form an integral part of the Constitutional Act.

* The author would like to thank research student Benjamin Vynne Muschinsky for his help with finding the sources for this chapter.

138  Helle Krunke The amendment procedure is arduous compared to most other constitutions and this is often mentioned as the main reason why the Constitution is seldom amended, even though other reasons might also be mentioned. The legislators acting by themselves cannot amend the Constitution – the electors must participate both through an election and through a referendum. In this way, stability in society and democratic participation are valued highly in the amendment procedure.1 The Constitution regulates the main principles for the legislative process in Denmark, which we shall return to in the next section on the organisation, procedure and management of legislation. The hierarchy of norms includes the following kinds of regulation: • • • • •

The Constitution (and constitutional conventions). Statutory legislation, including consolidation acts. Administrative orders. Administrative service regulations. Administrative instructions.

The Constitution regulates the main structures of the constitutional system, including the form of governance, the institutions and their competences, the separation of powers, and human rights. It has only 89 provisions. Combined with the age of the Constitution, this means that constitutional interpretation and constitutional conventions (which are legally binding) are important in order for the Constitution to fit into a modern context. Furthermore, statutory legislation plays a very important role as an instrument of regulation and the European Convention on Human Rights is important in the field of human rights. Statutory legislation is defined by the legislative procedure in the Constitution. A piece of regulation that has been passed by this procedure is by definition statutory legislation.2 The Danish courts have the competence to review the constitutionality of statutory legislation. When bills from ministers are introduced in Parliament, they will be accompanied by preliminary comments written by the ministry of the minister responsible for the bill. Traditionally, these preliminary comments play an important role when interpreting statutory legislation, since they show the intention of the bill. Other preliminary works such as debates of the bill in Parliament and in parliamentary committees, including committee reports, are also included in the interpretation of statutory legislation. Administrative orders and service regulations are legally binding on the administration. They must have support in a higher-ranking legal source and must not violate statutory legislation or the Constitution. Statutory legislation cannot cover all possible areas within a topic. Therefore, administrative orders often regulate a certain area in more detail or fill out the more technical details, which are not regulated in statutory legislation. Some statutory 1 On the procedure for amending the Danish Constitution, see H Krunke, ‘Formal and Informal Methods of Constitutional Change’ in X Contiades (ed), Engineering Constitutional Change (Abingdon, Routledge, 2013) 73–92. On the legal and political reasons for the few amendments that have taken place, see H Krunke and T Baumbach, ‘The Role of the Danish Constitution in European and Transnational Governance’ in A Albi and S Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights and Rule of Law. National Reports (Dordrecht, Springer, 2019). 2 See P Blume, Retssystemet og juridisk metode, 2nd edn (Copenhagen, Jurist- og Økonomforbundets Forlag, 2014) 132.

Legislation in Denmark  139 legislation even has the character of legislative frameworks, which focus on the purpose of the legislation and leave it up to the administration in terms of issuing further administrative regulations. Service regulations are binding on the administration, while administrative instructions are normally only instructional (soft law). However, when administrative instructions instruct the administration how to apply new statutory legislation, their legal weight can in practice be quite important.3

8.2.  The Organisation, Procedure and Management of Legislation The legislative process is described in several sources, including the Constitution, the standing orders of Parliament and the administrative instruction on quality in legislation. The cycle of legislation from initiation to passing and amendments will be described in this section. Furthermore, the new citizens’ initiative, which was introduced in 2018, and referendums, which have an impact on legislation, will be included. Bills can be initiated either by a minister, under Article 21 of the Constitution, or by a Member of Parliament, under Article 41, part 1 of the Constitution. Most bills are initiated by a minister. Whereas Members of Parliament who would like to initiate a bill only have the support of the rather small administration of Parliament (normally the secretary of a select committee) to support them in drafting a bill, ministers have a whole ministry with civil servants who are experts on drafting bills and substantively on that particular political area to support them. Furthermore, the Ministry of Justice has a special legal office, which in general supports other ministries in drafting bills. One possibility for Parliament is to adopt a parliamentary decision – initiated by one or more Members of Parliament under Article 21, – which calls upon the government to initiate a bill in a certain area. There is debate in constitutional theory as to whether such parliamentary decisions are legally binding on the government.4 However, in practice the government normally follows them. Denmark has a tradition of minority governments, sometimes in the form of a coalition. Bills can be initiated by one or more Members of Parliament and these members can come from the same or different political parties. Normally, the bill will originate from the political party group as such rather than from just one member.5 Below we will primarily focus on bills initiated by a minister, since this is the most common procedure. However, the adoption of a bill in Parliament of course follows the same procedure regardless of who initiated the bill. When a bill needs to be drafted, three possibilities exist.6 First, a legislative committee can be appointed, with the task of looking into whether new legislation is needed and what

3 ibid 152–53. 4 See H Zahle, Dansk forfatningsret I, Institutioner og regulering (Copenhagen, Christian Ejlers’ Forlag, 2001) 314–17; and JP Christensen et al, Grundloven med kommentarer (Copenhagen, Jurist- og Økonomforbundets Forlag, 2015) 183–85. 5 See Zahle (n 4) 263. 6 See ibid 258.

140  Helle Krunke it should contain. Such a committee is appointed by a minister. The decision to do so can be initiated by a minister or a parliamentary decision. The tasks of the legislative committee are described in a mandate. The committee will normally consist of civil servants, members of political parties, experts and representatives from organisations.7 The chairman of the committee is sometimes a judge. The legislative committee will write a report with a recommendation. Second, the ministry can draft the bill and this process will normally take place in the office with the responsibility and knowledge of the particular area that is the object of the legislation. Third, the minister can set up an internal working group to draft the bill. Of the three possibilities, the process which includes a legislative committee is the least applied in practice.8 The next step is for the minister responsible for the draft bill to start a hearing process. Authorities and organisations, which will be affected by the bill, are given the chance to provide comments on the draft bill within a certain period of time. In a small number of cases,9 the hearing process takes place after the introduction of the bill in Parliament. Based on the above-described process, the draft bill might be adjusted. Adjustments can also be a result of the input and wishes of the political parties behind the bill and a reality check of what it will take to gain a majority in favour of the bill. Finally, as regards government bills, the minister responsible for the bill will present the bill at a meeting in the Council of Ministers, where its introduction to Parliament is decided. Formally, this decision is confirmed in the Council of State, which is headed by the monarch.10 The bill is introduced to Parliament either according to Article 21 (if initiated by a minister) or Article 41, part 1 (if initiated by a Member of Parliament). The initiator contacts the Chairman of Parliament, who will then report the bill to Parliament under Article 10 of the Standing Orders. Normally, bills are introduced in writing. The initiator will give a short written reason for the introduction of the draft bill, which together with the draft bill will be printed in the parliamentary gazette and made public on the Parliament webpage. Another possibility, which is seldom used nowadays, is an oral introduction in Parliament.11 Before the introduction of a bill to Parliament, the Chairman of Parliament will perform an ex ante review in accordance with the Article 10 of the Standing Orders of Parliament. This includes a technical check of whether the bill is drafted in the correct way with a title and articles, and if the bill amends an existing piece of legislation, there must be a reference to this. Furthermore, bills which are not in accordance with the Constitution are dismissed under Article 16 of the Standing Orders. This decision must be made by Parliament. The violation of the Constitution must be a clear one. Third, according to practice, the Chairman can dismiss bills, which violates the dignity of Parliament. However, this is a narrow competence.12 As regards the introduction of a finance bill to Parliament, a special provision exists in the Constitution. According to Article 45, a finance bill for the next fiscal year will be submitted to Parliament no later than four months before the beginning of such fiscal year.



7 See

ibid 258–61. ibid 261. 9 See ibid 262. 10 See ibid 252–62. 11 See ibid 270. 12 See ibid 271. 8 See

Legislation in Denmark  141 Where it is expected that the reading of the finance bill for the next fiscal year will not be completed before the commencement of that fiscal year, a provisional appropriation bill will be laid before Parliament. A bill must go through three readings (debates) in Parliament before adoption (Article 41, part 2 of the Constitution). This guarantees the democratic process and the quality of adopted legislation. A certain amount of debate and time must be invested in the adoption of a bill in Parliament. A so-called identity principle guarantees that Article 41, part 2 is not circumvented by requiring that the bill cannot be altered so much between the readings in Parliament that it loses its identity.13 The Standing Orders provide a more detailed regulation of the three readings in Parliament. The first reading of a bill is regulated by Article 11 of the Standing Orders. The first reading of a bill in Parliament must take place no earlier than two days after it has been made public on the Parliament webpage. The first reading should take place no earlier than five days after the bill is made public on the Parliament webpage. The initiator of a bill can demand that the first reading takes place no later than 14 meeting days after it was made public on the Parliament webpage (Article 11, part 1 of the Standing Orders). The purpose of the first reading is to discuss the bill in light of general considerations and not in detail. Propositions for amendments to the bill cannot be introduced (Article 11, part 1). After the first reading, the bill passes on to the second reading (Article 11, part 2). Parliament must decide on whether the bill should be sent to a committee in between the first and second readings. The second reading cannot take place until two days after the first reading at the earliest (Article 12, part 1). At the second reading, it is possible to comment on more general as well as more detailed aspects of the bill, and it is possible to introduce and comment on amendments to the bill (Article 12, part 1). At the end of the second reading, Parliament will vote on the proposed amendments (Article 12, part 2). After this, the bill passes on to the third reading and Parliament must decide whether the bill (as it stands after the second reading) should be sent to a committee (Article 12, part 3). If Parliament decides not to send the bill to a committee between the second and third readings, a committee which was included between the first and second reading can demand to examine the bill again (Article 12, part 4). The third reading must not take place until 30 days after the introduction of the bill and until two days after the second reading has ended (Article 13, part 1). There exists a minority guarantee according to which two-fifths of Parliament can demand that 12 days (not counting Sundays) pass from the end of the second reading to the third reading (Article 41, part 3 of the Constitution and Article 13, part 1 of the Standing Orders). A number of special bills such as finance bills are excluded from this according to Article 41, part 3 of the Constitution and Article 13, part 1 of the Standing Orders. An exception also exists for bills the entry into force of which cannot be postponed due to the nature/purpose of the bill. It is possible to introduce amendments to the bill at the third reading and Parliament will vote on them (Article 13, parts 2 and 3 of the Standing Orders). At the end of the third ­reading, Parliament votes on the final bill (Article 13, part 3). If the bill is adopted, it is signed by the Chairman of Parliament and a parliamentary secretary and is then sent to the

13 See

ibid 277.

142  Helle Krunke Prime Minister (Article 13, part 5). Another possibility is for Parliament to vote in favour of a break in the third reading and to send the bill to a committee (Article 13, part 4) – the third reading will then be resumed later on. There exists a possibility of shortening the legislative process by applying the exception in Article 42 of the Standing Orders. According to Article 42, the procedures for the adoption of legislation can be deviated from if three-quarters of Parliament supports this and the deviation does not violate the Constitution. This means that in practice, the procedure according to which two days must pass between the second and third readings is sometimes deviated from if it is clear that a vast majority approves the bill and Parliament has finished its debates on the bill. Article 42 also means that a bill can go three readings in one day if it is very urgent.14 However, this must of course be a narrow possibility, since sufficient time and debate must be preferred as part of the democratic processes of adopting new legislation. A minority guarantee exists after a bill has been adopted. According to Article 42, part 1 of the Constitution, within three days (not counting Sundays), one-third of Parliament can request a referendum. Certain types of bills are excluded (Article 42, part 6). Parliament can decide to repeal the bill within five days (not counting Sundays) (Article 42, part 3), otherwise the referendum will take place at the earliest 12 days and at the latest 18 days after the Prime Minister has promulgated that a referendum will take place (Article 42, part 4). In the referendum, the voters can vote for or against the bill. For the bill not to be passed, it takes a majority of the voters participating in the referendum to vote against it, and at least 30 per cent of the total number of citizens eligible to vote must reject it (Article 42, part 5). An exception from the minority guarantee exists in Article 42, part 7 of the Constitution. Under exceptional circumstances, the Prime Minister can ratify a bill after the three readings, even though a minority of Parliament have requested a referendum. However, after the referendum, the bill will be annulled if the referendum produces a negative result. When a bill has been adopted by Parliament, it must be ratified by the signature of the monarch and countersigned by a minister within 30 days of its adoption in order to become valid legislation (Article 22 of the Constitution). The competence to ratify bills is a governmental prerogative. It has been debated whether a government can refuse to sign a bill. Though it has been debated, constitutional literature still accepts that there is no legal obligation for the government to sign a bill.15 However, there is certainly a political reality and it is hard to imagine that a government would not ratify a democratically adopted bill, as this would risk a vote of no confidence from Parliament. Denmark has negative parliamentarism (Article 15 of the Constitution). The signature of the monarch is considered a formality and the monarch cannot refuse to sign.16 Finally, it is the responsibility of the Prime Minister to make the new legislation public (Article 22 of the Constitution). New legislation is published electronically in the parliamentary gazette on legislation.17 In 2018, a citizens’ initiative was introduced in Denmark.18 If a citizens’ initiative can gather support from at least 50,000 citizens and it fulfils the criteria for such initiatives,

14 See

ibid 277. ibid 297–300. 16 See ibid 301. 17 See LBK nr 1098 of 10 August 2016. 18 See LOV nr 1672 of 26 December 2017 and BEK nr 35 of 17 January 2018. 15 See

Legislation in Denmark  143 it will be introduced as a proposal for a parliamentary decision. A proposal for a parliamentary decision goes through two readings in Parliament. As mentioned above, whether parliamentary decisions are legally binding on the government is a subject of debate in the constitutional literature. However, in practice, the government normally follows them. A parliamentary decision can, for instance, ask the government to introduce a specific bill. In this way, the new citizens’ initiative can have an impact on legislation. Another way of citizens having a direct influence on legislation is through referendums. We have already explained how the minority guarantee in Article 42, part 1 of the Constitution involves a referendum. However, other types of referendums exist. First, some constitutional provisions demand a binding referendum. According to Article 20 on transfer of sovereignty to international organisations, if five-sixths of Parliament do not support a bill on transfer of sovereignty, a binding referendum must be held. Examples of such referendums are the referendum on the accession to the European Community (EC) in 1972, the referendum on the accession to the Maastricht Treaty in 1992 and the referendum on joining the euro in 2000. According to Article 29, part 2, the age of voting is determined by a referendum. As mentioned earlier, constitutional amendment includes a binding referendum, according to Article 88. Second, it is possible for Parliament to hold advisory (non-binding) referendums, which must be based on an act. Third, it has been debated in the constitutional literature whether Parliament can hold binding referendums which must be based on an act. Whereas older theory has declined this possibility, more recent literature consider it possible.19 Amendments to legislation are normally carried out through the adoption of a consolidation act. The only content of the consolidation act is the changes to existing legislation. Adoption in Parliament follows the normal legislative procedure described above.

8.3.  The Policy-Making Procedure In general, the idea behind a bill can appear because a ministry, other parts of the administration or a Member of Parliament becomes aware of a problem and the need for a specific piece of legislation.20 The government might have a party programme and bills can be a result of the realisation of the visons and ideas in this programme. It might also be that, for instance, an organisation or a private individual has informally contacted a ministry or a Member of Parliament and turned their attention to a need for new legislation. Furthermore, it might be that a bill is required because of an EU initiative or another international commitment. The sessional year starts with Parliament’s first meeting after the summer period, which takes place the first Tuesday in October (Article 36 of the Constitution). The Prime Minister will render an account of the general state of the country and of the measures proposed by the government, and this will be made subject to general debate (Article 38 of the Constitution). The Prime Minister’s speech thus mentions the bills and proposals for

19 See Zahle (n 4) 289–92; and H Koch, ‘Folkeafstemningsinstituttet’ in P Blume and H Petersen (eds), Retlig polycentri (Copenhagen, Akademisk Forlag, 1993) 257–82. 20 See Zahle (n 4) 257.

144  Helle Krunke parliamentary decisions which the government expects to introduce in the coming session. This plan for new bills and parliamentary decisions is referred to as the legislative programme for the coming session. The speech by the Prime Minister combines the political goals of the government for the coming year with more concrete legislative steps to obtain these goals. The different ministries have all contributed to the legislative programme, which is coordinated and written by the Ministry of State. The Danish Ministry of Justice has issued an administrative instruction on quality in legislation.21 The administrative instruction has very detailed information on the legislative programme, including how it is designed and structured, how the information is gathered, how to coordinate between the ministries, the content, the information to Parliament and how to plan for the future.22 The administrative instruction on quality in legislation also has a rather detailed description of when new legislation is needed.23 The following situations are mentioned as situations that point in favour of new legislation: • EU obligations or other international obligations require it. • New legislation will create a more clear legal system and provide clarity to citizens. • New legislation will simplify the work of the administration or the courts. However, at the same time, it is emphasised that too detailed legislative regulation leaves no room for flexibility. Therefore, the different criteria must be weighed against each other. Technical considerations regarding, for instance, linguistics can also play a role. Furthermore, it should be considered whether other types of regulation would be more appropriate. The following should be considered: • • • •

What is the nature of the given problem for which a solution is needed? What is its extent? Do relevant experiences from abroad exist? Is it realistic that the problem will be solved by new legislation? Can it be expected that new legislation can be enforced? Will the invested resources be proportional?

The positive and negative effects must be proportional. Alternatives to new legislation which should be considered are: • • • • •

economic incitements; self-regulation; voluntary agreements; regulation of process; information.

In general, the goal of Danish legislation is to stipulate rules. This means that there is no extraneous information in legislation and that, for instance, the background and purpose

21 See www.lovkvalitet.dk/lovkvalitetsvejledningen. 22 See also L Hjortnaes, ‘Lovgivningspolitik i Danmark’ in Lagstiftningspolitik – Nordisk Seminarium om Lagstiftningspolitik (Copenhagen, Nordic Council of Ministers, 2005) 27–41. 23 See www.lovkvalitet.dk/lovkvalitetsvejledningen.

Legislation in Denmark  145 of the legislation are not mentioned in the legislation itself; this can normally be found in the preliminary works. As mentioned earlier, such preliminary works play a role in legislative interpretation. The administrative instruction specifically points out that it should be considered concretely what text should go in the legislative act and what should go into the preliminary comments to the act. In general, goals, which are not targeted at citizens, should not be the subject of legislation.24

8.4.  Formal Legisprudence: Drafting Techniques As mentioned above, a bill can be introduced to Parliament either by a minister or by a Member of Parliament (private bills). Private bills will pass through a process of linguistic and technical review in the administration of Parliament. Bills from ministries will be drafted and checked by the ministry they originate from and to a certain extent the Legal Office in the Ministry of Justice. We will return to this in section 8.5 below. Article 10, part 1, 1st and 2nd sentences of the Constitution lists the following requirements for bills: Bills shall be drafted in statutory form and have a title that briefly defines the contents of the Bill and lists it in numerical order. Bills aiming at amending or repealing an Act of an earlier date shall be entitled ‘Bill on amendment to – repeal of ’ – the earlier Act in question, as the case may be, possibly defined more specifically by a subtitle.

Furthermore, according to Article 2, part 1 of the Act on Danish Orthography, all parts of the Danish public administration – Parliament, authorities affiliated with Parliament and the courts – must follow the official Danish orthography. If several possibilities are available, Parliament will choose one of the possibilities and will apply this spelling coherently.25 In the administrative instruction on quality in legislation26 and in the Handbook of Parliament’s Work,27 detailed information on formal legisprudence can be found.28 In bulletpoint 2.1 of the administrative instruction on quality in legislation, the following instructions are given regarding language in bills. Bills should be written in a clear language and especially if the bill concerns punishment, sequestration, taxes and other forms of encroachment on individuals, where legal foreseeability is especially important. Besides being clear, a bill should be systematic, easy to read and pedagogical. A simple, short and precise style should be applied both as regards choice of words and choice of language style – short sentences and clear sentences are preferable. It is important to apply the same concepts in legislation in general. Gender-neutral expressions are preferable. Loanwords and foreign words should not be applied if possible. Use of general officialese, long words and unnecessary words should be avoided.29 24 ibid. 25 See www.ft.dk/da/dokumenter/bestil-publikationer/publikationer/haandbog-i-folketingsarbejdet/haandbogi-folketingsarbejdet, bulletpoint 6.3. 26 See www.lovkvalitet.dk/lovkvalitetsvejledningen. 27 See www.ft.dk/da/dokumenter/bestil-publikationer/publikationer/haandbog-i-folketingsarbejdet/haandbogi-folketingsarbejdet. 28 See also AL Bormann et al, Loven. Om udarbejdelse af lovforslag (Copenhagen, Jurist- og Økonomforbundets Forlag, 2002). 29 See www.lovkvalitet.dk/lovkvalitetsvejledningen, bulletpoint 2.1.

146  Helle Krunke The title of the bill must be as short as possible without unnecessary words.30 As regards bills that implement EU directives, there must be a reference to the EU Official Journal. Very detailed guidelines exist on how this reference should be made.31 Reference must also be made when existing Danish legislation covers the new EU directive (following from case law from the CJEU). If an EU directive is amended, the reference must be updated the first time the act is amended. Bills that paraphrase an EU directive or incorporate an EU directive should include the directive as an appendix. If many changes have been made, it might be better to merge them. EU regulations are sometimes copied into national regulation. In such cases, there should be a reference to the EU regulation and it should be stated that this is only for practical reasons. This brings us to the composition of the text in the bill.32 The composition of a bill depends on the content of that particular bill. However, the following general guidelines provide guidance on the structure and systematisation of bills:33 • • • • • • • • • • •

The purpose of the bill. The scope of the bill. Definitions/concepts. Rights and obligations of individuals. Competence and procedures. Penal provisions etc. Entry into force. Abrogation and transitional provisions. Need for amendment of other parts of legislation as a consequence of the bill. Temporal validity, revision etc. Territorial validity.

In general, it is recommended that many short articles and short parts rather than a few long articles are used. An article should not have more than three or four parts. If a bill is long (more than 15–20 articles) it should be divided into chapters with short precise titles. Even within a chapter, in some cases it can be appropriate to have sub-titles of articles or groups of articles. In very large bills, it might make sense to gather chapters together under sections in the bill.34 Regarding choice between a consolidation act and a new act, it is recommended to choose a new act if the proposed new regulation builds on fundamental new views, which differ from the old legislation, and many provisions are affected by this.35 In general, a new act has advantages, such as giving Parliament a better overview of the proposed changes and the existing legislation, and this will sometimes lead to clear possible interpretative ambiguities



30 See

ibid, bulletpoint 2.2.2.1. ibid, bulletpoint 2.2.2. 32 See ibid, bulletpoint 2.2.3. 33 ibid. 34 ibid. 35 See ibid, bulletpoint 2.2. 31 See

Legislation in Denmark  147 and lack of clarity. However, this must be weighed against the extra time and resources that an entirely new act will demand. Extremely detailed guidelines exist on how to draft consolidation acts.36 It is beyond the scope of this chapter to enter into a detailed description of all of them. Instead, it can be emphasised that they generally follow the same pattern as the guidelines for new bills, but with specific focus on the amendment situation. For instance, as regards the title, it must always start with the words ‘Bill on amendment of the Act on’. If the bill proposes to amend several acts, the title of all of them should figure in the title of the consolidation act.37 A subtitle must be placed under the title and in parenthesis. The sub-title must reflect the main content of the consolidation bill. The following structure should be applied: • All amendments systematised with numbers. • Dates of entry into force and possible transitional provisions (or, if necessary, transitional provisions can be placed in separate provisions). • Territorial validity. There exists a paradigm for consolidation acts in the administrative instruction on quality in legislation38 and very detailed information on how to handle the sequence of amendments (the amendments should follow the provisions they amend), the precision of the original provision, redrafting (if there are many amendments), the abrogation of old provisions, the inclusion of new articles, numbering, identical amendments, the inclusion of new sections or chapters, the inclusion or amendment of appendices, lists of recitations, amendment of characters, amendment of other acts as a consequence of the bill and change of location between ministries.39

8.5.  Regulatory Impact Assessment Monitoring and evaluation of the law in view of its quality can take place at different stages: ex ante, concurrent and ex post. This structure will be applied in the following analysis. At the ex ante stage, quality evaluations take place in a number of ways. First, the idea for new legislation is sometimes the result of observations of the existing legislation in the ministries. If the ministries observe some challenges or possibilities for improvement in the existing legislation, they report this to the Ministry of State, which coordinates the legislative programme each year. Second, analyses of possible consequences of bills are carried out in ministries.40 A first assessment of the consequences already takes place in connection with the annual legislative programme, which is introduced to Parliament by the Prime Minister. A more detailed consequence analysis follows the preliminary comments of bills which are introduced to Parliament. All bills must be accompanied by an analysis of

36 See ibid, bulletpoint 2.3. 37 See ibid, bulletpoint 2.3.3. 38 See ibid, bulletpoint 2.3.6. 39 See ibid, bullets 2.3.6.1–2.3.6.13. 40 See the administrative instruction of consequence analyses of 2005 (revised in 2018) from the Ministry of State.

148  Helle Krunke their consequences.41 Not only the ministry in charge of the bill, but also other ministries which might be affected by the bill are included in the preparation of the bill. As mentioned earlier, consequence analysis also has an influence on whether a bill or a parliamentary proposal is chosen as the right political instrument of a political initiative or even on whether a political initiative is necessary at all. Such consequence evaluations relate to different mandatory aspects:42 • • • • • •

Financial consequences for the state, the regions and the municipalities. Implementation consequences for the state, the regions and the municipalities. Administrative consequences for the citizens. Significant financial consequences for the business sector. Significant administrative consequences for the business sector. Significant environmental consequences.

However, further analysis of consequences might be necessary – for instance, a macroeconomic, socio-economic or distributive economic analysis. Detailed information on how to measure the different types of consequences exists.43 Third, new screening procedures have recently been introduced in order to prevent so-called ‘gold-plating’ of EU directives. The background to this is as follows. At the start of 2015, discussions took place in the Danish Parliament regarding parliamentary control of the implementation of EU directives. First, Parliament was concerned since the executive implements EU directives by administrative acts in nine out of 10 cases. According to the Chairman of the European Policy Committee, this means that parliamentary control is cut off. On the other hand, the Minister of Justice emphasised that Parliament is almost always involved in the negotiations of proposals on new EU legislation though the European Policy Committee. The government writes memos to Parliament on all proposals for new directives and proposals for important regulations, and presents these to the European Policy Committee. Second, Parliament was under the impression that Denmark ‘goldplates’, meaning that it follows EU objectives further than necessary when implementing EU directives. The impact of these discussions in Parliament has been the following. First, on 7 May 2015, the Danish Parliament adopted a parliamentary resolution stating that in the future, Parliament shall always be informed if a bill or an administrative act goes further in implementing a directive than is requested by the EU. Furthermore, the government is in general requested to inform Parliament when implementing EU directives and regulations. Second, the government has created a Committee on EU Implementation (consisting of ministers from relevant fields), and an Implementation Council (in which different industrial interests are represented) has been created with the purpose of preventing overimplementation. Third, the Ministry of Justice now checks whether ‘over-implementation’ is taking place as a general procedure in the implementation process. 41 See Statsministeriet cirkulære nr 159 om bemærkninger til lovforslag mv af 16 September 1998. 42 See the administrative instruction of consequence analyses of 2005 (revised in 2018) from the Ministry of State; Statsministeriet cirkulære nr 159 om bemærkninger til lovforslag mv af 16 September 1998. 43 See the administrative instruction of consequence analyses of 2005 (revised in 2018) from the Ministry of State; Statsministeriet cirkulære nr 159 om bemærkninger til lovforslag mv af 16 September 1998; and Vejledning om erhvervsøkonomiske konsekvensvurderinger, Erhvervs- og Vækstministeriet, January 2015.

Legislation in Denmark  149 Fourth, one might also mention the hearing process as part of the quality evaluation process. Private companies, organisations, institutions and others affected by a bill will usually have much knowledge of and experience with existing legislation within a specific field, which puts them in a unique position to evaluate possible consequences of new legislation.44 That being said, they of course also have certain political interests, which they might express at the same time. Fifth, as part of the quality check at the ex ante stage, the review carried out by the ministries and Parliament as regards language, structure and formal legisprudence in general, but also the review of bills in relation to the Constitution, EU law and other international obligations, existing legislation and general legal principles, is of great importance. As explained above, the review carried out by Parliament’s administration and the Chairman of Parliament is not as extensive as the review carried out by the ministries and especially the legal office of the Ministry of Justice. Since Denmark has no ex ante review of legislation in the courts and no special committee to carry out such an ex ante review for Parliament (it is the case in Finland and Sweden), the substantive review carried out in the ministries plays an important role. As mentioned earlier, all bills are accompanied by consequence analyses. Such analyses provide Parliament with a better basis for discussing such aspects of the bills and for committees, which work with the bills between the three readings in Parliament, to focus on the consequences. In this way, the quality assessment is further strengthened. At this stage of the legislation process, the text can still be amended in light of, for instance, consequence reflections. Finally, it should be mentioned that all the political parties in the Danish Parliament made a political agreement in 2017, according to which it must be considered at all stages of the legislative process how easy new legislation will be to implement digitally.45 This means that new legislation should be as clear as possible, should apply the same terms and should have as few exceptions and as little discretion as possible. The idea is to be able to automatise administrative decisions when possible. All new bills from the ministries must be accompanied by analyses of how easy they will be to implement digitally. Furthermore, existing legislation will be evaluated in relation to the same criteria. This brings us to the ex post quality assessment of legislation. This is carried out in a number of ways. First, it is an important task for ministries to monitor and evaluate legislation within their remit. This is evaluated in relation to the purpose and instruments of legislation, the development in society, and in relation to whether acts and the preliminary comments that accompany them have proven to be unclear in practice.46 The ministries can gain knowledge of the consequences of legislation from case law, administrative authorities within their remit, scientific articles and theses, requests from citizens and organisations and public debates on concrete cases.47 Furthermore, cross-cutting analyses are carried out within extensive areas of legislation. Finally, the ongoing dialogue between the government and Parliament will result in useful insights, for instance, through questions raised in Parliament. It will sometimes be appropriate for a ministry to add more systematic and 44 See also by MJ Pedersen, ‘Social Influence, Voter Turnout and Mobilization’, PhD thesis, Institute of Political Science, University of Copenhagen, 2017. 45 See https://digst.dk/media/15574/digitaliseringsklar-lovgivning.pdf. 46 See www.lovkvalitet.dk/lovkvalitetsvejledningen, bulletpoint 8.6. 47 ibid.

150  Helle Krunke ongoing analyses and evaluations of the consequences of legislation.48 In some cases, an act and/or the preliminary comments attached to it will have a provision/comment according to which the act should be adjusted/revised after a certain period and in light of the experiences so far.49 In the preliminary comments to some acts, there will be a duty of monitoring the act over, for instance, three or five years and to write a report which evaluates the act in practice. The ministry might have to hear the views of a number of organisations and authorities that have been affected by the act. The report will be given to the select committee within the resort of the ministry.50 Substantive ex post review of the constitutionality of legislation is carried out by the courts if sufficient legal interest is present.

8.6.  Teaching Legisprudence Very basic legisprudence is taught at the universities as part of constitutional law on legal courses. The ministries offer civil servants more specialised courses on legisprudence. Since not all civil servants have a legal background, the ministries offer courses not only on legisprudence but also on administrative law. The Ministry of Justice plays a special role as regards legisprudence, since it has a special responsibility for the creation of new bills, including the technical and linguistic design, whether the content is in accordance with the Constitution, EU obligations, other international obligations etc and in terms of upholding quality in new legislation. The Ministry of Justice offers courses on legisprudence on an ongoing basis. Furthermore, private courses on legisprudence are available on the market.

Further Reading AL Bormann et al, Loven – om udarbejdelse af lovforslag (Statutory Legislation – on Legislative Drafting) (Copenhagen, Jurist- og Økonomforbundets Forlag, 2002) (in Danish) L Hjortnaes, ‘Lovgivningspolitik i Danmark’ in Lagstiftningspolitik – Nordisk Seminarium om Lagstiftningspolitik (Copenhagen, Nordic Council of Ministers, 2005) 27–41 H Krunke and B Thorarensen (eds), The Nordic Constitutions. A Comparative and Contextual Study (Oxford, Hart Publishing, 2018) Lovkvalitetsvejledningen (Administrative Instruction on the Quality of Legislation), www. lovkvalitet.dk/lovkvalitetsvejledningen (in Danish) MJ Pedersen, Defining Better: Investigating a New Framework to Understand Quality of Regulation’ (2016) 18 European Journal of Law Reform 159 ——. The Business of Regulation: Politico-legal Analyses of Regulatory Quality and its Sources (Copenhagen, University of Copenhagen, 2017) Vejledning om digitaliseringsklar lovgivning (Administrative Instruction on DigitisationReady Legislation), https://digst.dk/media/17750/vejledning-digitaliseringsklar-lovgivningjuli-2018_publikation-d-15-august-2018.pdf (in Danish)

48 ibid. 49 See 50 See

ibid, bulletpoint 8.8. ibid, bulletpoint 8.9.

9 Legislation in Estonia JAAN GINTER, AARE KASEMETS AND RAUL NARITS

Context After the long process of the restoration of independence in 1987–91, the Estonian Constitution was passed by a referendum on 28 June 1992.1 The first decade of Estonian post-Soviet transition can be described as the creation of the new constitutional and social order, Soviet law was repealed and the legal system of the Republic of Estonia of 1918–40, which was in force de jure, did not fit the new context. The invitation to join the European Union (EU) in 1997 strengthened the consensus around the aspiration for the rapid modernisation of the institutions of the state, the economy and civil society.2 Estonia reached the ‘Western standards’ of participatory democracy and the rule of law before the joining the EU in 2004 and is now among the developed countries according to the Rule of Law Index global rankings3 and many comparative Better Regulation policy studies.4

9.1.  Legislation and the Hierarchy of Provisions Estonian legal culture belongs to the continental legal system, where acts containing legal provisions have primary importance as the source of law; doctrines, customary law and precedent are of minor importance. The main legislative authority in Estonia is the Riigikogu (Parliament). The adoption of laws is the constitutive task of the Riigikogu. It is competent to adopt laws in accordance with the Constitution in all matters within the state’s jurisdiction. Still, laws are not the only form of legislation that is of general application in the legal order of Estonia. The principle of priority of law requires that a lower-ranking

1 Estonian Constitution, RT 1992, 26, 349; RT I, 15 May 2015, 1. 2 A Kasemets, ‘Institutionalization of Better Regulation Principles in Estonian Draft Legislation: The Rules of Law-Making, Procedural Democracy and Political Accountability between Norms and Facts’ (2018) 6(1) Theory and Practice of Legislation 75–76. 3 WJP Rule of Law Index 2017–2018. Available at: https://worldjusticeproject.org/our-work/wjp-rule-lawindex/wjp-rule-law-index-2017%E2%80%932018. For the period 2017–18, Estonia was ranked twelfth. 4 OECD, ‘Country Profile: Estonia’ in Regulatory Policy Outlook 2015. Available at: https://www.oecd.org/gov/ regulatory-policy/Estonia-web.pdf; J de Mulder, ‘The Member States and the Better Regulation Agenda: The Case of Belgium/Flanders’ in S Garben and I Govaere (eds), The EU Better Regulation Agenda: A Critical Assessment (Oxford, Hart Publishing, 2018) 151, 182.

152  Jaan Ginter, Aare Kasemets and Raul Narits legal provision should be in conformity with a higher-ranking provision – for example, the conformity of a regulation to the law. The principle of priority of law has two aspects: the priority of validity of higher provision and priority of application of lower provision. The former means that a lower provision cannot determine the content of a higher provision; however, the latter means that if a lower provision exists, this must be applied as a matter of priority. Given the perspective of an administrative authority, this means that, first, this means that the regulation must apply. Only if there is no regulation, does the law come into play. From the court’s perspective, if the administrative act was issued under the regulation, first, the correspondence of an administrative act to the regulation must be verified, then the correspondence of the regulation to law and, only then, the correspondence of the law to the Constitution. It is wrong to examine the lawfulness of an administrative act based directly on the Constitution. Besides the Riigikogu, people also fulfil the function of law-making, legislation is also passed by means of referendum laws, which the Riigikogu has decided to submit to a ­referendum5 and a­ mending the Constitution.6 The President of the Republic has a right to issue decrees.7 The Riigikogu may delegate the right to issue regulations to the government.8 The government and ministers may issue regulations.9 Local authorities also have regulatory competences.10 Although the Constitution does not provide for the competence of the Bank of Estonia to create legislation, it still issues regulations.11 The highest position in the hierarchy of legal provisions is held by the Constitution itself, which forms a legal framework for the entire system of legal provisions, sets objectives for the Republic of Estonia and determines the main divisions of rights and obligations, and the balancing formula of constitutional institutions. Generally recognised principles and rules of international law are an inseparable part of the Estonian legal system.12 This provision can be interpreted to benefit the monist as well as the dualist approach. Estonian case law has been very open towards international law. At the same time, Estonian courts have been rather modest in the direct application of international legal provisions. In principle, however, the principles and rules of international law are directly applicable in the Estonian legal order. Yet, what is their place? If we interpret the above-mentioned provision to read that the purpose of the provision is to ensure conformity of the Estonian legal system with the generally recognised principles and rules of international law, these provisions should also be given priority over Estonian domestic legislation. At the same time, it is clear that the hierarchy of different forms of legislation, which is based on the position of the authorities competent to issue legal provisions in the state administration, is inherent to domestic law and cannot be transposed to international law. Accordingly, the provisions of international law, originating from different sources 5 Estonian Constitution (n 1) §§ 56 2); 105 and 106. English translation available at: https://www.riigiteataja.ee/ en/eli/521052015001/consolide. 6 ibid §§ 163(1) 1) and 164. 7 ibid §§ 109 and 110. 8 ibid § 87(6). 9 ibid § 94(2). 10 ibid § 154(1). 11 The Bank of Estonia Act (RT I 1993, 28, 498 … RT I, 19 March 2015, 3, §§ 1(5) and 11(5) and (6) (English ­translation available at: https://www.riigiteataja.ee/en/eli/513042015009/consolide) allows the Governor of the Bank of Estonia to make regulations as legislation of general application. See The Estonian Constitution. Commented Edition (Tallinn, Juura, 2017) 752 (in Estonian). 12 Estonian Constitution (n 1) § 3(1).

Legislation in Estonia  153 (international contracts, customary law and general principles of law) also have a priori equal legal value and therefore all take priority over Estonian domestic legislation. The place of laws (adopted by the Riigikogu) in the hierarchy of legal provisions depends on whether these are so-called constitutional laws (adopted by a majority of the members of the Riigikogu)13 or provisions contained in current legislation (adopted by a simple majority of votes in favour). In terms of legal value, the decrees issued by the President of the Republic are equal to laws.14 In terms of competence, although the President is an administrative authority,15 he or she also has to fulfil a legislative function in certain situations. The President has the right to issue decrees on matters of national urgency if the Riigikogu is unable to convene.16 The purpose of the President’s extraordinary legislative power is the preservation of legislative continuity in emergency situations. Estonia consistently follows the principle of separation of powers. At the same time, it is possible that if they are given specific authorisation to do so by Riigikogu, the executive bodies of the state, the government and ministries can issue regulations (delegated legislation), thereby creating substantive law. Regulations occupy a lower position in the hierarchy than laws. It follows from § 87(6) and § 94(2) of the Constitution that both the government and the ministries are competent to issue regulations ‘on the basis of and for the implementation of laws’. The Constitutional Review Chamber of the Supreme Court has stated that in a democratic society governed by the rule of law, the delegation of legislative competencies cannot be of a general nature. The admissibility of such general delegation would mean that the Riigikogu could waive the execution of its statutory legislative function in favour of executive power.17 The local government right to issue regulations derives from § 7(1) of the Local Government Organisation Act,18 which authorises municipal councils and administrations to issue regulations as legislation of general application. The extent of the right to issue regulations is set out in the Constitution, which states that all local matters are determined and administered by local authorities, which discharge their duties autonomously in accordance with the law.19 The legal provisions of the local authority regulations are on the lowest level of domestic legal acts. The legal basis for joining the EU was created by the Constitution of the Republic of Estonia Amendment Act (hereinafter ‘the Amendment Act).20 The Constitution must always be read and interpreted together with the Amendment Act, and only the parts of the original Constitution that are not in conflict with the Amendment Act are applied. On the one hand, the Amendment Act is an authorisation to ratify the Treaty of Accession signed with the EU; however, on the other hand, it declares that Estonia may belong to the EU

13 In order for these laws to be adopted, at least 51 of the 101 members of Riigikogu have to vote for the bill. A majority is not taken from the number of votes cast. 14 Estonian Constitution (n 1) § 109. 15 ibid § 78. 16 ibid § 109. 17 Case No 3-4-1-3-96, RT I 1997, 4, 28, p III. 18 RT I 1993, 37, 558 … RT I, 29 June 2018, 1. English translation available at: https://www.riigiteataja.ee/en/ eli/528062018008/consolide. 19 Estonian Constitution (n 1) § 154. 20 RT I 2003, 64, 429. English translation available at: https://www.riigiteataja.ee/en/eli/530102013005/consolide.

154  Jaan Ginter, Aare Kasemets and Raul Narits provided that the fundamental principles of the Constitution are respected. In Estonia, this provision is often called the ‘protective clause’. Nevertheless, the relationship between the principle of legality and EU law is not entirely clear in Estonia. The Supreme Court, having recognised the doctrine of the primacy of Community law without reservations, has found that the operation of these provisions of the Constitution, which are not in conformity with EU law and which therefore cannot be applied, is suspended. Thus, the Supreme Court has defined § 1 of the Amendment Act hesitantly: ‘[The] Supreme Court en banc considers that § 1 of the Amendment Act must be regarded as an authorisation to ratify the Treaty of Accession of the EU as well as a forward-looking authorisation, which allows Estonia to belong to the changing EU, provided that the amendment of the Treaty on the Functioning of the EU or a new treaty is in conformity with the Constitution.’21 Most commonly, Estonian legal authorities agree with the position that soft law is a set of rules that have been enforced using an instrument which has not been given legally binding force as such, but which nevertheless may have a certain legal effect and which are aimed at the practical consequences they can cause.22 After the accession of Estonia to the EU, international soft law has had a great impact on the development of Estonia’s legal rules. An example of this would be the area of strategic goods export control, where the EU has played an important role as a developer of soft law and as the harmoniser of regulations. Specifically in this field (among others), the very first order of the government concerning export controls provided for the duties to transpose the soft set of rules into the Estonian legal order.23 Today, the control of military cargo has been completely harmonised with the soft set of rules. Estonia actively participates in negotiations on soft law to prevent a possible negative impact on the reputation, security and economy of Estonia.

9.2.  Organisation, Procedure and Management of Legislation In Estonia, the authority to introduce acts is vested in: 1) 2) 3) 4) 5)

members of the Riigikogu; a faction24 of the Riigikogu; a committee of the Riigikogu; the government; the President when he or she proposes amendments to the Constitution.25

21 RKüK 12.07.2012, 3-4-1-6-12, clause 223. English translation available at: https://www.riigikohus.ee/en/ constitutional-judgment-3-4-1-6-12. 22 F Snyder, ‘The Effectiveness of European Community Law: Institutions, Process, Tools and Techniques’ (1993) 56 Modern Law Review 34. 23 On the formation of the Strategic Goods Commission for the national strategic goods export control system and its implementation, see Order of the Government of the Republic No 366, 1 June 1993 – RT I 1993, 48, 667 (in Estonian). 24 A faction may be formed by and must comprise no fewer than five members of the Riigikogu who have been elected from the list of candidates of a single political party. Members of the Riigikogu who have been elected from the list of candidates of a single political party may only form one faction. See Riigikogu Rules of Procedure and Internal Rules Act, RT I 2007, 44, 316 … RT I, 28 June 2016, 4, § 40(1). English translation available at: https://www. riigiteataja.ee/en/eli/528122016004/consolide#22090450-976a-4d93-90c4-8a63b4021d78. 25 Estonian Constitution (n 1) § 103.

Legislation in Estonia  155 The adoption of a bill goes through three readings. At the first reading, the general principles are debated. The reading commences with a report given by the introducer of the bill. This is followed by a report from a representative of the lead committee. Any member of the Riigikogu may ask up to two questions. Then the representatives of the factions can present comments. If the lead committee does not move to reject the bill or if none of the factions moves to reject the bill, the first reading is concluded without a vote.26 At the end of the first reading, members, committees and factions of the Riigikogu may submit motions to amend the bill.27 Between the first reading and the second reading, the lead committee considers amendment motions and decides whether to incorporate them into the bill.28 At the second reading, the provisions of the bill are debated. A report is made by a representative of the lead committee. The introducer of the bill makes a report if he or she so wishes or if the lead committee so decides. Any member of the Riigikogu may ask up to two questions. Then the members of the Riigikogu and representatives of the committees and factions can present comments.29 Amendment motions are voted on after the debate has concluded.30 At the proposal of the Board31 of the Riigikogu, the lead committee or the introducer of the bill, the Riigikogu suspends the second reading without a vote. A corresponding proposal made by a faction of the Riigikogu is put to the vote. If the second reading is suspended, motions to amend the bill may be submitted again.32 If the Riigikogu does not suspend the second reading, the bill is passed on for the third reading.33 At the third reading, the representatives of the factions can present comments and the bill is put to the final vote.34 Laws can enter into force after they have been promulgated by the President and published. The President may refuse to promulgate a law and may return the law to the Riigikogu. If the Riigikogu passes the law for a second time without amending it, the President either promulgates the law or applies to the Supreme Court for a declaration of unconstitutionality in respect of that law. If the Supreme Court declares the law to be in conformity with the Constitution, the President promulgates the law.35 If the Riigikogu does not pass the act without amendments, further proceedings on the act are conducted through the ordinary three readings.36 Laws enter into force on the tenth day following their publication in the Riigi Teataja, unless they contain a contrary provision.37

26 Riigikogu Rules of Procedure and Internal Rules Act (n 24) § 98. 27 ibid § 99. 28 ibid § 100. 29 ibid § 105. 30 ibid § 106. 31 The Board of the Riigikogu consists of the President and Vice-Presidents (one as a rule from the coalition and another from the opposition) of the Riigikogu. See Riigikogu Rules of Procedure and Internal Rules Act (n 24). 32 ibid § 107. 33 ibid § 108. 34 ibid § 111. 35 Estonian Constitution (n 1) § 107. 36 Riigikogu Rules of Procedure and Internal Rules Act (n 24) § 113. 37 Estonian Constitution (n 1) § 108.

156  Jaan Ginter, Aare Kasemets and Raul Narits The Riigikogu has the right to submit a bill or other issue to a referendum. The decision of the people is made by a majority of the votes cast in the referendum. The decision of the referendum is binding on all public bodies. If the bill fails to receive a majority of the votes cast, the President calls an extraordinary election of the Riigikogu. Issues regarding the budget, taxation, the financial obligations of the national government, the ratification and denunciation of international treaties, the declaration or termination of a state of emergency, or issues relating to national defence may not be submitted to a referendum.38 Amendments to legal acts are initiated and passed according to the same procedure used when the original acts were passed. An amendment to the Constitution may be introduced by no less than one-fifth of the members of the Riigikogu or by the President of the Republic. A bill to amend the Constitution is deliberated by the Riigikogu in three readings.39 The Riigikogu decides on the method of passing the bill to amend the Constitution40 at the third reading of the bill. The proposal concerning the method of passing the bill to amend the Constitution is made by the Constitutional Committee.41 People can influence the legislative agenda by the submission of a collective address to the Riigikogu by at least 1,000 Estonian permanent residents.42 The Board of the Riigikogu decides the opening of proceedings on a collective address and transmits the proposal to the relevant committee or committees of the Riigikogu for proceedings.43 The committee considers the proposal and makes a decision concerning the proposal. It may decide to: 1) initiate a bill or draft resolution or the deliberation of a matter of significant national importance; 2) hold a public sitting; 3) transmit the proposal to the competent institution in order to take a position regarding the proposal and to resolve it; 4) transmit the proposal to the government in order to develop a position regarding the proposal and to reply to it – the position that is developed is also communicated to the committee; 5) reject the proposal; 6) resolve the problem raised in the proposal by other means.44 38 ibid §§ 105–06. 39 ibid §§ 122–23. 40 The Constitution may be amended by: (1) a referendum; (2) two successive memberships of the Riigikogu; and (3) the Riigikogu, as a matter of urgency. In order to submit a bill to amend the Constitution to a referendum, a three-fifths majority of the members of the Riigikogu is required. In order to amend the Constitution by two successive memberships of the Riigikogu, a bill to amend the Constitution must be supported by a majority of the members of the Riigikogu. If the bill to amend the Constitution has received the support of a majority of the members of the previous Riigikogu and is passed by the succeeding Riigikogu unamended in the first reading and by a three-fifths majority, the bill is regarded as passed. A resolution to consider a bill to amend the Constitution as a matter of urgency must be passed by a four-fifths majority. If this is the case, the bill to amend the Constitution must be passed by a two-thirds majority of the members of the Riigikogu (Estonian Constitution (n 1) §§ 163–66). 41 ibid § 124. 42 Response to Memoranda and Requests for Explanations and Submission of Collective Addresses act, RT I 2004, 81, 542 … RT I, 25 October 2016, 1, §§ 71 and 73. Available at: https://www.riigiteataja.ee/akt/125102016016?leiaKehtiv; English translation available at: https://www.riigiteataja.ee/en/eli/501112016001/consolide. 43 Riigikogu Rules of Procedure and Internal Rules Act (n 24) § 1529. 44 ibid §§ 15212–15213.

Legislation in Estonia  157

9.3.  Developing Legal Policy and Legal Intent In Estonia, the mandatory ex ante impact assessment of bills in terms of social, economic, environmental, security, administrative and budgetary impacts and civic engagement has been in force since 1996.45 In 2007, the Ministry of Justice initiated the Better Regulation Programme (2007–10)46 and the current instrument entitled ‘The Rules for Good Legislative Practice and Legislative Drafting’47 (hereinafter ‘Drafting Rules’) is more detailed, including requirements for designing legislative intentions, preparing the concept of the bill and the ex post impact assessment of legislative acts. The implementation of these good law-making rules was supported by the ‘Development Plan for Legislative Policy until 2018’ (2011),48 based on the EU Better Regulation agenda (eg, the Mandelkern Report 2001 and the Impact Assessment Guidelines 2009), integrating both ‘formal’ and ‘material’ logistics. According to comparative studies, the institutionalisation of the EU Better Regulation concepts into the Estonian regulatory governance system has been quite successful since 2011.49 The results of normative content analyses of explanatory memoranda of bills (2007–15) and surveys of officials in the ministries (2009–18) show remarkable positive trends in the ‘materialisation’ of Better Regulation-related practices.50 Since the 1990s the key problem has been a lack of fair socio-economic and socio-legal information in the pre-legislative stage of law-making, which leads to a rise in regulative risks, the distortion of public information and ineffective public administration, and reduces the legitimacy of the law-making and laws.51 Estonian practices may be interesting for other EU countries for four main reasons, which are as follows. Integrated regulatory governance: the regulatory impact assessment (RIA) and civic engagement requirements are integrated into all levels of policy-making and law-making, including: (a) the pre-legislative consultation of EU affairs; (b) the design of national strategy documents; (c) legislative intents; (d) bills initiated by the government or the Riigikogu; (e) government regulations; and (f) ministry regulations. The requirements are similar for the legislative intents and other aforementioned regulatory governance levels in the Drafting Rules (2011) and the ‘Impact Assessment Guidelines’ (2012),52 including: (a) the analysis of challenges/problems and related social 45 A Kasemets, ‘Impact Assessment of Legislation for Parliament and Civil Society: A Comparative Study’ in A Kasemets (ed), Legal and Regulatory Impact Assessment of Legislation. Proceedings of ECPRD Seminar in Tallinn. ECPRD with Riigikogu Chacellery, 47–104. Available at: https://www.Riigikogu.ee/rva/ecprd/html/part_II.html. 46 Ministry of Justice, ‘Better Regulation Programme’, https://www.just.ee/et/parema-oigusloome-programm (in Estonian). 47 Rules for Good Legislative Practice and Legislative Drafting, RT I, 29 December 2011, 228. English translation available at: https://www.riigiteataja.ee/en/eli/508012015003/consolide. 48 Estonian Development Plan for Legislative Policy until 2018. RT III, 7 March 2011, 1, https://www.riigiteataja. ee/akt/307032011001 (in Estonian). 49 Kasemets (n 2). 50 ibid. For example, in the period 2009–15, the average level of compliance with the better regulation-related law-making rules rose by 18 per cent in the ministries, especially in the category of economic impact assessment, where the rise of compliance was 46 per cent. 51 Kasemets (n 45). 52 ibid; Government Office and Ministry of Justice, ‘Impact Assessment Guidelines’ (2012, in Estonian) and Ministry of Justice, ‘Checklist for Pre-legislative Intents’ (2014, in Estonian). Available at: https://www.just.ee/et/ eesmargid-tegevused/oiguspoliitika/oigusaktide-moju-analuus.

158  Jaan Ginter, Aare Kasemets and Raul Narits groups/stakeholders; (b) the purpose (eg, intended impacts and outcomes); (c) possible policy options of resolving the issue and compatibility of the selected policy option with the current legal and administrative system; (d) if available, a comparison of policy (eg, law) issues in countries with a legal system similar to Estonia; (e) a description and structure of the planned regulatory instrument; f) ex ante impact assessment of policy (eg, legal) options in main categories, such as whether the socio-demographic, economic, environmental, regional security, administrative and budgetary impacts will be analysed or not; (g) in-depth analysis of significant impacts; and (h) an action plan for the further preparation of the draft policy document, bills etc, including the planning of ex post impact assessment.53 Legislative intent is not required in some cases – for example, if the bill needs to be passed urgently, if the bill is related to the implementation of EU law, an international agreement or the bill of annual State Budget act.54 Coordination: the Legislative Quality Division of the Ministry of Justice is responsible for the systematic improvement and evaluation of regulatory policy. It also issues guidelines for RIA and scrutinises the legal quality of bills. The Strategy Unit at the Government Office of Estonia complements this work by coordinating stakeholder engagement in policy-making across the government. The Legal and Research Department of the Riigikogu provides opinions and advice on the quality of draft laws at the request of parliamentary committees.55 Consultation, transparency and accessibility: the right of citizens to be informed and involved in law-making has been regulated in Estonia since 2000. Interest groups and the public are involved in the preparation of a legislative intent, concept, or bill, and (since 2018) ex post impact assessment of an act and coordination is carried out in compliance with the provisions of the Drafting Rules and the Good Practice of Engagement.56 The government has placed a strong focus on accessibility and transparency of regulatory policy by making use of online tools, such as an up-to-date database of all primary and subordinate regulations, an online information system tracking all legislative developments (including RIAs) and an e-consultation portal.57 The Estonian regulatory oversight model: this has achieved many structural changes in recent years.58 The Legislative Quality Division of the Ministry of Justice provides an oversight and challenge function for RIAs and ex ante evaluations in relation to primary legislation. It reviews the quality of RIAs and can return them for revision if their quality is deemed to be inadequate. All other ministries must do the same regarding their field of competence, but despite this obligation, there is a lack of advisory services and cost-benefit analyses of intended social, economic and environmental policy impacts. For government strategies and EU negotiations, oversight responsibilities lie with the Government Office.

53 See Rules for Good Legislative Practice and Legislative Drafting (n 47) §§ 1, 7, 40, 46, 47, and 50. 54 ibid § 1(2). 55 OECD (n 4); U Reinsalu, ‘Presentationon on the implementation of Development Plan for the Legal Policy until 2018’, http://stenogrammid.Riigikogu.ee/et/201611091400 (in Estonian); OECD, ‘Country Profile: Estonia’ in Regulatory Policy Outlook 2018, https://www.oecd.org/gov/regulatory-policy/estonia-country-note-regulatorypolicy-2018.pdf, 175–76. 56 Rules for Good Legislative Practice and Legislative Drafting (n 47) § 1 (5) and (6), § 50; and Government Office, Good Practice of Engagement. Available in Estonian: https://www.riigikantselei.ee/en/good-practice-engagement. 57 OECD, Regulatory Policy Outlook 2018 (n 55) 175–76. 58 Above n 2; K Staroňová, ‘Comparing the Roles of Regulatory Oversight Bodies in Central and East European Countries’ (2017) 8(4) European Journal of Risk Regulation 723.

Legislation in Estonia  159 Later-stage online consultation is conducted for all major primary laws accompanied by a draft text of the regulation and the explanatory memorandum.59

9.4.  Techniques of Drafting and Publishing, Requirements for Draft Act A draft act must clearly regulate the legal relationships of the field requiring regulation and the legislative provisions must be sufficiently detailed to allow for the direct application of the act.60 The provisions set out in a draft act must be such as to allow for the attainment of the established purpose and the norms proposed must enable the objective to be achieved at the optimum cost. When planning for additional expenses for the state or a local authority or if it is necessary to reduce their revenue, the sources for covering the additional expenses or loss of income must be planned at some stage in the preparation of a draft act.61 The language used in a draft act must comply with the Estonian Literary Standard. It must be clear, unambiguous and precise. The use of different expressions for the same idea is to be avoided. The use of synonyms is forbidden.62 New terms may be introduced in the following scenarios: 1) when regulating a field for the first time; 2) when re-regulating the field if a new term complies better with the requirements for understandability. A loanword may only be used if it is widespread in the Estonian language or there is no original equivalent in the Estonian language.63 The terms used in a draft act relating to EU law are used in accordance with the terms used in EU law and usually are not defined in the draft.64 If a draft act is prepared for the transposition of EU law, the issuer or issuers of the EU legislation, and the type, number, title and publication citation of the EU legislation are presented in a drafting note.65 In order to amend an act, the wording of its provision may be amended in whole or in part, the text may be supplemented with new provisions and current provisions may be repealed. The amendment or repeal of an act may be contemplated by: 1) an implementing provision of a draft act regulating a field relating to the same legal relationships; or 2) a draft act initiated separately for the amendment or repeal of the act.66



59 Above

nn 2 and 58; Reinsalu (n 55). Rules for Good Legislative Practice and Legislative Drafting (n 47) §§ 2–3. 61 ibid § 7. 62 ibid § 15. 63 ibid § 17. 64 ibid § 18. 65 ibid § 27. 66 ibid § 32. 60 See

160  Jaan Ginter, Aare Kasemets and Raul Narits The amendment or repeal of another act arising from a draft act is contemplated in the implementing provisions of the same draft act.67 When sections or other structural parts are added to an act, the numbering of the structural parts of the act in force will not be changed. When a structural part is added in between the structural parts in force that are of the same type, the structural part will have the same number as the previous one with a superscript in Arabic numbers.68 An explanatory memorandum is appended to a draft act for the purpose of stating the reasons for passing the act, the main propositions of the draft and the amendments arising therefrom, and to give an overview of the impact that is brought about by the entry into force of the act.69 One part of an explanatory memorandum explains the likely impact arising from the act on the following issues: 1) 2) 3) 4) 5) 6)

the social (including the demographic) situation; national security and international relations; the economy; the environment; regional development; the state authorities and agencies of local authorities.70

The second part of an explanatory memorandum gives an overview of the activities of state authorities that will be required for the implementation of the act and the amount of all the direct expenses required for the implementation of the act and the sources for covering these expenses.71 The third part of an explanatory memorandum states the reasons for the authorising provision and the purpose, content and scope thereof, and sets out the date or term for the entry into force of the implementing legislation if it is different from the act.72 Legislation is published in the Riigi Teataja as official original texts. The Riigi Teataja is the official online publication of the Republic of Estonia.73 There has been no routine official paper publication of legislation in Estonia since 1 June 2010. Besides the original acts and amending acts, the Riigi Teataja publishes official consolidated texts containing all amendments of acts and resolutions of the Riigikogu, decrees of the President of the Republic, regulations and orders of the government, regulations of a minister and a decree of the Governor of the Bank of Estonia,74 and regulations of a rural municipality and city council and government. The Riigi Teataja does not publish legislation that is published in the Official Journal of the European Union, including international agreements, legislation containing state secrets

67 ibid § 33. 68 ibid § 37. 69 ibid § 39. 70 ibid § 46. 71 ibid § 47. 72 ibid § 48. 73 Riigi Teataja Act, RT I 2010, 19, 101 … RT I, 3 March 2017, 1; §§ 1–2. English translation available at: https:// www.riigiteataja.ee/en/eli/519062017012/consolide. 74 The Bank of Estonia is the central bank of the Republic of Estonia and a member of the European System of Central Banks.

Legislation in Estonia  161 and access restrictions, or orders of the government that are delivered to a person pursuant to the procedure provided for in the Administrative Procedure Act if such delivery obligations have been specified in the order and there is no public interest for publishing it in the Riigi Teataja. In Relation to regulations containing state secrets, the part of the regulation not subject to state secrecy or a notice containing at least the title, the date of adoption and the number of the regulation will be published in the Riigi Teataja.75 The legislation is published in the Estonian language. Translation of legislation into English and Russian and publication of the translations in the Riigi Teataja is organised by the Ministry of Justice to the extent determined by the Minister of Justice. Translations are made available in the Riigi Teataja.76 The Riigi Teataja is available on the internet free of charge.77

9.5.  Ex Ante and Ex Post RIA and the Impact of the European Legislation As the main functions of the government are similar in different EU Member States, the existential question of smaller states like Estonia has been how to optimise the regulatory management and how to compensate for its limited human and financial resources. Recent Estonian legislative policy initiatives are related to the EU agenda ‘Better Regulation for Better Results’.78 Studies on socio-legal knowledge use in Estonian draft legislation (1998–2018) show that the selective presentation of mandatory impact assessment and civic engagement knowledge happens more frequently due to political, administrative and analytical capacity, and less due to ‘priority of politics’. As Urmas Reinsalu, Estonian Minister of Justice, noted sadly during a parliamentary hearing: There is space for development in in-depth regulatory impact analyses. The principles of good legislation are not fully embraced … If significant impacts are identified, there are sometimes a number of reasons why some ministry does not have the time, desire, skills or resources and why the in-depth analysis is not done.79

According to Staroňová, Estonia is the only country in the Central and Eastern Europe (CEE) region where more impacts than merely fiscal ones are discussed on a regular basis.80 The availability of RIA information is related to the basic principle of the rule of law in terms of the right of individuals to have access to information outlining their legal position/rights

75 ibid § 4. 76 ibid § 6. 77 ibid § 7. 78 Rules for Good Legislative Practice and Legislative Drafting (n 47); Ministry of Justice, ‘The Legislative Volume Reduction Plan’ (2015) (in Estonian); European Commission, ‘Better regulation for better results – An EU agenda’ (Communication) COM (2015) 215 final. 79 Rules for Good Legislative Practice and Legislative Drafting (n 47); Estonian Government, State Chancellery, ‘Legislative Policy Development Plan until 2018: Report on the Implementation, 2015’ (in Estonian), https://www. just.ee/sites/www.just.ee/files/oiguspoliitika_arengusuundade_elluviimine_2015_ulevaade.pdf. 80 Above n 58; also K Staroňová, ‘Oversight Mechanism for Regulatory Impact Assessment: Comparative Study of Five CEE Countries’, PSA Conference, Sheffield (2015).

162  Jaan Ginter, Aare Kasemets and Raul Narits in relation to legislative proceedings. The adequate socio-legal information in the explanatory memoranda can be useful during many phases of the policy cycle, for example: (a) the preparatory phase as a basis for deliberations; (b) the implementation phase in order to support the public understanding of the law and to serve as interpretative guidelines for private enterprises, administrative authorities and courts; and (c) also during the monitoring and evaluation phases.81 In this context, we argue that from the citizens’ perspective, the quality of socio-legal, economic and environmental information in the explanatory memoranda of bills should be considered to be a constitutional human rights issue. A critical analysis of the availability of ex ante and ex post RIA information in the content of the explanatory memoranda of bills in the mandatory categories of sociodemographic, economic, environmental, security, administrative and budgetary impacts in the period 2007–17 has shown that the general trends of compliance have been positive. Nevertheless, there are challenges, including lack of systematic data collection and only occasional use of economic analysis (cost-benefit analysis (CBA), standard cost analysis etc). Transparent calculations of costs and benefits are rare and the data on ­ businesses impact assessment are in most cases quite fragmented, covering few shallow CBA items. In sum, the above-mentioned impact assessment categories lack methodological complexity – the comparison of alternative regulatory policy options is rare. For example, formal normative compliance in the category of administrative impact assessment of draft acts was very good (97 per cent), but there is space for substantial improvement because the consultation process with other ministries has quite a limited influence on the social, economic, environmental and security impact assessment information. In short, there is a problem of interministerial coordination and responsibility.82 The Drafting Rules (2011) make the ex ante RIA mandatory, while the ex post RIA is optional for the ministries. According to the Estonian Ministry of Justice website, the OECD Regulatory Policy Committee recommendation (2012) on systematic regulatory governance programmes and the conduct of ex post impact assessment reviews was generally not followed by the Estonian ministries before 2017, but some ex post assessments had already been done by then.83 In general, this means that there has been a deficiency of systematic feedback information to foster knowledge-based policy/law design and policy learning.84 Some new ex post RIA initiatives started in 2018. A recent OECD recommendation stated as follows: ‘Estonia could complement the implementation of its ex post evaluation requirements by establishing a standing body that regularly undertakes reviews of existing regulations in key policy areas.’85

81 Above note 42; see also R Narits, ‘Good Law Making Practice and Legislative Drafting Conforming to it in the Republic of Estonia’ (2004) IX Juridica International 4–13. 82 Above note 2; see also I Lianos, M Fazekas and M Kariluk, ‘Crossnational Diffusion in Europe’ in CA Dunlop and CM Radaelli (eds), Handbook of Regulatory Impact Assessment (Cheltenham, Edward Elgar, 2016) 286–303. 83 See, for example, Praxis Centre for Policy Studies Foundation, ‘Study on the Implementation of the Gender Equality Act among Employers and the Development of Indicators for Assessing the Impact of the Law’ (2016, in Estonian), http://www.praxis.ee/wp-content/uploads/2015/09/SVS-rakendamine.pdf; J Ginter et al, ‘Study about Corruption and Fraud in the Estonian Education System’, University of Tartu (2017, in Estonian), https:// skytte.ut.ee/sites/default/files/skytte/hvk_aruanne_2017.pdf (eg, on the implementation of Anti-corruption Act, conclusions in English from p 58). 84 Above n 2. 85 Above note 45.

Legislation in Estonia  163 The gap between national and EU Better Regulation practices (eg, a fair RIA) is one of the key problems for smaller EU Member States. There is a need for complex CBAs of EU draft directives and regulations. In the Estonian context, the content analysis of bills also shows that more than 60 per cent of national legislative initiatives in Estonia are related to EU directives and regulations, but in most cases, the impact assessment report undertaken by the European Commission was not cited. This gap between the ‘formal logistics’ relating to public information and the ‘material’ logistics relating to, for example, absent social, economic and environmental information indicates some degree of democratic deficit and the risks of distorted political communication. Further study is required on why the impact assessment reports undertaken by the Commission were not retrieved.86

9.6.  Legislative Drafting and Training the Lawyers Drafting Legislation The Ministry of Justice has initiated a ‘Development project of legislative drafting’ (1 May 2014–31 December 2020), which provides training for lawyers drafting legislation as well as study visits to other countries. This project is given strong support by two legislative documents. In the next few months, the Riigikogu will adopt ‘General principles for legislative policy until 2030’,87 which will serve as a principal foundation for impeccably functioning legislative drafting and will continue in the direction followed by the Riigikogu, ‘Development Plan for Legislative Policy until 2018’.88 Based on these documents, it is possible in Estonia to agree on the long-term direction of legislative policy and of legislative drafting policy, which will serve as a basis for regulatory policy analysis, drafting new acts, developing the legal language and arranging the legislative drafting. The focus remains on good legislative drafting following the principle of good involvement and evidence-based legislative practice. However, good legislative drafting cannot appear out of nowhere. The lawyers drafting legislation who have a relevant qualification to do so have played an important role in the competent realisation of the above-mentioned legislative policy strategies since 2011; therefore, the systemic approach to the training of officials responsible for drafting legislation is necessary. Thanks to the support of the European Social Fund, the Ministry of Justice has initiated a centralised training project for lawyers drafting legislation that will be ongoing until 2020, with the purpose of harmonising the preparation of drafting lawyers and offering them training on specific topics. Drafting lawyers who have passed the training are expected to have the following skills: to assess the constitutionality of the created regulation more proficiently and definitely, ensuring conformity with the principles for administrative proceedings; to implement the principles for transposing EU law into domestic law; to strictly follow the requirements established to the legislative act and its explanatory memorandum; to consider the restrictions and requirements arising from the legislative drafting

86 Above n 2. 87 Ministry of Justice, ‘General Principles for Legislative Policy until 2030’ (draft, in Estonian), https://www.just. ee/et/oiguspoliitika-pohialused-2030. 88 Above n 48.

164  Jaan Ginter, Aare Kasemets and Raul Narits process in their work; and to implement the principles of data protection law and the principles for creating the regulation of databases. The first pilot, which involved the training of lawyers drafting legislation, was held in 2013 and was very well received. The target group for the training were the drafting lawyers of ministries and the Government Office, lawyers involved in legislative drafting at the constitutional institutions and law graduates starting their employment with state authorities. In order to ensure that the law students graduating from university also consider the profession of a lawyer drafting legislation when starting their career, a training programme for young lawyers drafting legislation has been established. The programme, which has been in operation since 2015, has already been attended by many young lawyers. In addition to knowledge of doctrine, this programme also provides for comprehensive practice starting from ministries preparing draft act and ending with the Chancellery of the Riigikogu, the Office of the President, the Office of the Chancellor of Justice and the Supreme Court. Those who participated in the programme have also had an opportunity to participate in privatesector legislative drafting, practising, for example, in the PRAXIS policy research centre and the Estonian Chamber of Commerce and Industry, representing entrepreneurs. A good cooperation platform for lawyers drafting legislation is the roundtable of drafters’ managers chaired by the Ministry of Justice. The roundtables, which are mostly organised once a month, involve the departmental heads of ministries, representatives of the Chancellery of the Riigikogu, the Office of the President and the Government Office. It should be noted that the research regarding legislative drafting is not centrally ­coordinated in Estonia; however, Estonian universities are actively: seeking resources to address this issue. The problem lies in the fact that some topics specific to Estonia and areas of law are not eligible for EU or international aid and, accordingly, as there have not been sufficient domestic funding available either, have thus taken a back seat. The solution here can only be the involvement of public funding. Regardless of the fact that universities are increasingly offering refresher training programmes,89 these are primarily designed for those implementing the law and do not cover the needs of lawyers engaged in legislative drafting. This gap must be filled by offering training that is focused on legislative drafting. For ­subsequent training activities, the Estonian government will have to find its own resources. As the development of a common training system for lawyers engaged in legislative drafting is more sustainable than organising it separately in different institutions, the solution is most likely to be found in mutual cooperation amongst all units engaged in legislative drafting. To improve the involvement of academia in the legislative drafting, we are expecting that the requirement stated in the legislative policy strategies to create better cooperation between the government, the Riigikogu and research institutions will soon be fulfilled.90 In summary, the professional knowledge and skills of officials dealing with law-making should be supported by both higher education curricula and a governmental training system, including capacity building in order to: (a) analyse the regulatory policy cycle as a whole, 89 P Pruks, ‘Tartu Ülikooli õigusteaduskonna täiendusõppe uus tõus’ (2013) V Juridica 355 (in Estonian). Two of the three authors of this chapter (A Kasemets and R Narits) have also attended the refresher training programme prepared by the University of Tartu on good legislative drafting as lectors. 90 See above nn 48 and 87. Including an optimistic forecast: interministerial and interdisciplinary cooperation, and the involvement of universities will rise.

Legislation in Estonia  165 and institutional preconditions for knowledge-based (responsible, moral) law-making, such as risks; and (b) use the RIA ‘toolbox’ to provide balanced social, economic, environmental and security ex ante and ex post impact assessment of national and/or EU-level regulatory policies. Due to the complexity and multi-disciplinarity challenges of policy/law analysis, and the needs for interactive public policy and legislative communication, the training of networking capacities is also essential.

Further Reading A Talmar-Pere, R Narits and A Kasemets, ‘Applying the Concept of Better Regulation to Internal Security Policy’ (2011) XVIII Juridica International: Law Review of University of Tartu 35−43, https://www.juridicainternational.eu/public/pdf/ji_2011_1_35.pdf Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne (Republic of Estonia Constitution. Commented Edition) (Tallinn, Juura, Õigusteabe AS, 2017) (in Estonian), https://pohiseadus. ee/public/EVPS_kommeteeritud_valjaanne_2017.pdf. https://www.juridicainternational. eu/public/pdf/ji_2004_1_4.pdf A Kasemets, ‘Institutionalisation of Knowledge-Based Policy Design and Better Regulation Principles in Estonian Draft Legislation’, Dissertationes Sociologicae Universitatis Tartuensis, 2018, https://dspace.ut.ee/bitstream/handle/10062/62643/kasemets_aare. pdf?sequence=1&isAllowed=y R Narits, ‘Good Law Making Practice and Legislative Drafting Conforming to it in the Republic of Estonia’ (2004) IX Juridica International: Law Review of University of Tartu 4–13.

166

10 Legislation in Finland JYRKI TALA

Context Statutory legislation is undoubtedly the most important and influential instrument the state can utilise in a democratic rule-of-law country like Finland. Other instruments of governance, such as the annual state budget, public ownership of enterprises or providing the infrastructure for society, are not as pivotal. Besides, most of the aforementioned instruments have to be utilised by legislation. Legislation today is still predominantly a national matter, as Karpen presents.1 Legislation is, however, much more than simply national. Many factors, often called Europeanisation, internationalisation and globalisation, have a large and growing impact on the content of legislation, in both legally binding, as well as non-binding but still strongly influential ways.

10.1.  Legislation and Other Types of Legal Norms Statutory legislation establishes the foundations of the Finnish legal system and it is based on civil law jurisdiction, as in the other Nordic countries. The overwhelmingly dominant type of legal norms in Finland are laws, which are enacted by the Parliament on the basis of government proposals. The system and hierarchy of statutory regulation in Finland consists of four levels. The most significant type of norm is obviously the Constitution, which was last reformed in 2000. The Constitution determines the foundations of the whole legal system. It includes basic rules on exercising public power. It lays down, for example, the principle that the exercise of public powers shall always be based on an act, ie, the principle of legality. It also prescribes the division between legislative, governmental and judicial powers. From the citizens’ point of view, one core function of the Constitution is establishing the basic rights and liberties of individuals. The second level in the hierarchy of legal norms consists of parliamentary laws. Their legal and de facto very prominent role is confirmed in the Constitution, which prescribes

1 U Karpen, ‘Introduction’ in U Karpen and H Xanthaki (eds), Legislation in Europe (Oxford, Hart Publishing, 2017).

168  Jyrki Tala that the principles governing the rights and obligations of private individuals shall be governed by the acts.2 This means that all central decisions regarding the content of the legal system must be regulated by laws enacted by the Parliament, unless the significance of the matter requires regulation at the level of the Constitution. In addition, the Constitution stipulates that regulation of certain other specific matters is only allowed through laws. For example, statutory legislation of fundamental rights, regulation of state taxes, the principle of legality in criminal matters and the delegation of administrative tasks to other entities than public authorities all fall within this group. Further down in the hierarchy of legal norms are the so-called decrees. The starting point is that decrees can only be utilised regarding less significant matters. Decrees can be issued only on the basis of an explicit authorisation in the Constitution or in an act.3 Depending on the authorisation, the decrees can be issued by the President of the Republic, the government or some of its ministries. Decrees issued by the President are exceptional. The Parliament has no role in issuing decrees. Decrees are typically utilised to support the implementation of an act or to specify rules, the main contents of which have already been determined by an act; for example, rules on the safety of consumer products are specified be decrees.4 At the fourth and lowest level in the hierarchy of legal norms are subordinate rules laid down by other authorities than the government. According to the Constitution, several preconditions must be fulfilled.5 The authorisation to lay down these kinds of rules must be given by an act, the authorisation shall be precisely circumscribed and there must be a special reason for this that is pertinent to the subject matter. Issuing subordinate rules is not allowed if the material significance of the rules requires that they be laid down by an act or decree. Such rules have been issued, for example, on technical details relating to some forms of regulation, such as the handling of travel costs in taxation, where the basic norm is included in the tax legislation. Even if the rules of the Constitution regarding the hierarchy of legal norms are fairly abstract and general, no major political or legal conflicts have accrued in this respect so far. One main goal of the reform of the Constitution in 2000 was to widen and ensure the role and significance of the law, enacted by the Parliament, at the cost of decrees and other lowerlevel regulations. This objective has evidently also been achieved. From time to time, some critical comments have been presented that the dominant role of the acts has too heavily restrained the opportunities to utilise decrees, which as a regulatory instrument would be more flexible and could be used or amended more quickly.

10.2.  The Volume of Legislation The volume of legislation and its continuing growth are a permanent topic for criticism and debate in most Organisation for Economic Co-operation and Development (OECD)



2 Section 3 ibid. 4 Act

80 of the Finnish Constitution, 731/1999.

920/2011. 80 of the Finnish Constitution.

5 Section

Legislation in Finland  169 countries, and this is also the case in Finland. Contrary to developments in some other countries – for example, the UK (since 2010)6 and the US (since 2017)7 – no powerful or influential deregulatory programmes have so far been implemented in Finland. This also applies to such special, fairly new deregulatory mechanisms as the so-called ‘one in, one out’ programmes that are currently utilised in several OECD countries.8 Debating and criticising the volume of legislation and problems related to it is nevertheless complicated both in Finland and elsewhere, due to the fact that, thus far, there are no reliable or commonly accepted criteria to identify situations in which there is too much or unnecessary regulation. Nevertheless, the following information sheds some light on the volume of legislation and its development in Finland over the past few years. In the official collection, called the Statutes of Finland, there are annually approximately 1,500 published regulations. There are, however, great annual variations, depending in particular on political factors. In 2017, for example, only 1,200 regulations were published. This amount consisted of slightly more than 570 acts (original new laws or amendments to previous laws and enacted by the Parliament), about 500 decrees and around 70 other regulatory instruments. The Finlex Data Bank, an online database of up-to-date legislative and other judicial information in Finland maintained by the Ministry of Justice, contained a total of more than 1,850 regulations in 2017.9 The purpose of the Databank is to provide the audience and the authorities with a useful and relevant collection of the current regulations in force. The annual volume of government proposals, submitted to the Parliament, describes for its part the pace of law reforms in Finland. Since 2000, an average of 250 proposals have been submitted to the Parliament annually, even if this figure also varies somewhat over the years, depending on political factors. One government bill usually includes two to three legislative proposals. The volume of annual law reforms seems to correspond well with the legislative development in the other Nordic countries, especially in Sweden and Denmark.10 When mapping the overall picture of all legally binding norms in an EU Member State, one also has to take into account the regulations issued by the EU. In this respect, the status in Finland is equal to that of other EU Member States. The normative status of the aforementioned EU regulations in the national hierarchy of legal norms is, according to the majority of EU law scholars, above that of all national norms, even if this view is also debatable. As regards the impact of EU law on national legislation and its volume, in general, it is commonplace to note that it is complicated to measure its exact impact. Attempts have been made to illustrate this in Finland by measuring annually the proportion of government proposals that are related to EU directives or regulations.11 The corresponding estimate has been repeated by scholars several times since 2000.

6 R Harris and K Sawyer, ‘How to Run a Country: The Burden of Regulation’, December 2014, Reform (Think Tank). 7 C Coglianese, ‘Let’s Be Real about Trump’s First Year in Regulation’, Regulatory Review, 29 January 2018. 8 R Hahn and A Renda, ‘Understanding Regulatory Innovation: The Political Economy of Removing Old Regulations before Adding New Ones’, August 2017, Technology Policy Institute. 9 www.finlex.fi. 10 J Tala, Lagstiftningsvärlden förändras – regelverket fortsätter att växa. Nordisk Administrativt Tidskrift 2/2013. 11 K Rantala, A Liimatainen, A Rytioja and M Keränen, ‘Vaikutusten arviointi ja lainvalmistelun perustietoja vuoden 2013 hallituksen esityksissä’, University of Helsinki, Institute of Criminology and Legal Policy. Research Briefs 8/2015.

170  Jyrki Tala Annually about 25–30 per cent of government proposals include references to either EU directives or regulations. These proposals very often also include rules that are justified only for purely national reasons. Moreover, about a quarter of government proposals include legally non-binding references to certain specific EU activities, such as EU p ­ olicies or programmes. These figures therefore admittedly describe the impact of EU law on Finnish legislation in a fairly crude way. One Finnish expert on constitutional and European law has concluded that ‘indeed there is no longer fields of Finnish law that are immune to the dynamics of Europeanization’.12

10.3.  Some Examples of Soft Law in Finland In Finland, national soft law norms can be divided into two main groups: co-regulation and self-regulation. In addition, some other types of norms can be characterised as soft law – for example, norms originating from standardisation or guidelines that multinational ­enterprises create in order to regulate their so-called transnational value chains.13 All companies in value chains in various countries are obliged to follow these guidelines, the objective of which may be ensuring consumer safety or environmental or social protection. These kinds of guidelines often also impact enterprises and consumers in Finland. The regulation and supervision of the activities of attorneys-at-law in cooperation between the legislator and the Finnish Bar Association is a full-fledged example of co-regulation. According to the Act of 195814 attorneys-at-law have to follow the rules of proper professional conduct for advocates. An Independent Disciplinary Board and Independent Disciplinary Unit, set out in law, have been given the task of supervision of advocacy. The Finnish Bar Association has laid down several regulations applying to advocacy. The Code of Conduct for Lawyers (adopted in 2009) is the most comprehensive of these. In other words, co-regulation in this case consists of ordinary legislative rules on the one hand and of norms set out by the Bar Association on the other hand. Another type of co-regulation can be found in the many statutory rules that regulate activities in some specific fields of business. In such cases, the legislator often lays down rules regarding the quality of businesses or sets minimum requirements for professionals in a particular field as a precondition allowing them to practise their profession. Moreover, the legislator may require that good professional practices shall be followed. For example, according to the Auditing Act,15 an auditor shall observe good auditing practice when

12 T Ojanen, ‘The Europeanization of Finnish Law: Observations on the Transformations of the Finnish Scene of Constitutionalism’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012). Ojanen also refers to the case law of the European Court of Human Rights (ECtHR). 13 K Sorsa, Kansainvälisen kaupan arvoketjujen sääntely: yhteiskuntavastuun ja ennakoivan oikeuden tarkastelua (Regulation of Globval Value Chains: Examining Corporate Social Responsibility and Proactive Law) (Turku, Turun yliopisto, 2011). 14 Attorneys-at-Law Act 496/1958. 15 Auditing Act 1141/2015.

Legislation in Finland  171 carrying out his duties. These kinds of norms are then mainly established within the a­ uditing community or sometimes a larger societal context, but not explicitly by the legislator. There are equivalent regulations in many other fields of business and professional activities. It is also noteworthy that organisations representing the interests of the actors in that field often actively draw up rules or guidelines themselves, the purpose of which is to clarify and confirm the content of good business or professional activity in the field. A full-fledged self-regulation within a certain field of business often includes: (1) rules guiding the activities in the field; (2) a monitoring and control system for supervision; and (3) a system of sanctions in the event that the rules are not followed. An illustrative example of this kind of self-regulation is the organisation and mechanism created by all central actors in the Finnish media industry. The task of the Council for Mass Media in Finland, which was established in 1968, is to interpret good professional practice and to defend freedom of speech and publication. The framework of the Council’s operations is stipulated in a Charter, which is signed by all the organisations that have committed themselves to self-regulation and have accepted its objectives.16 The journalists and other personnel engaged in the media who are affiliated with the Council have, ipso facto, committed to advancing and upholding the ethical principles of the profession. The Council comprises a chairman and 13 members whose term of office is three years. Any person who considers that there has been a breach of good professional practice by the media may bring this to the attention of the Council. Once the Council has established that good professional practice has been breached, it issues a notice, which the party considered to have caused the breach must publish within a short timespan. In certain circumstances involving important principles, the Council can initiate an investigation. A slightly different example of self-regulation is established in the field of sports activities. The Finnish Center for Integrity of Sports (created in 2016) is responsible for implementing international agreements on anti-doping activities. The Center applies and monitors Finland’s Anti-Doping Code, which includes requirements for the national antidoping code set up by the World Anti-Doping Agency (WADA). The role of the public actor (in practice the Ministry of Education and Culture) is twofold: it is one of the four founding members of the Center and it also finances the activities of the Center. To a certain extent, this arrangement actually combines elements of self- and co-regulation. Unfortunately, no comprehensive survey on Finnish soft law norms has been conducted. Nevertheless, the Finnish soft law norms can in general fulfil three main functions.17 In most cases they specify the content of statutory law and provide support when rules must be interpreted. Sometimes they simultaneously function as ordinary legislative norms. Either the legislation does not include any proper norm that could be applied to an actual case or the soft Law norm sets higher requirements for the activity in question. Moreover, there are some examples in which a previous soft law norm has been codified into ordinary legislation.18



16 Guidelines

for journalists and an annex, operative from 1 January 2014. Senden, Soft Law in European Community Law (Oxford, Hart Publishing, 2004). 18 For example, Sale of Goods Act 355/1987, s 3. 17 L

172  Jyrki Tala

10.4.  Enacting Legislation in Finland This section focuses on enacting laws by the Parliament. These are undoubtedly the most important statutory regulations in Finland, and enacting laws is Parliament’s most important task. The drafting of decrees will be described shortly. The procedure of enacting or amending the Constitution is ignored.19 This also applies to lower-level regulations than decrees. In Finland there are currently three different ways to initiate statutory legislation. Parliament can enact legislation on the basis of a government proposal, a Member of Parliament’s motion or a citizens’ initiative. The last of these was made possible in 2013 by a change in the Constitution and new legislation related to it. The goal of this reform has been to further and support citizens’ rights to participate in the democratic process. Almost all laws enacted by Parliament are in practice based on government proposals. This also corresponds with the objectives of the Constitution. According to its justifications, the management of legislation is, from the viewpoint of parliamentarism, the most significant and central task of the government. Motions of Members of Parliament only rarely lead to statutory legislation in the course of the electoral four-year term, even if the members normally make 100–200 motions annually. At least 50,000 Finnish citizens who are entitled to vote have a right to submit an initiative for the enactment of an act to the Parliament.20 In total, as at April 2020, 38 citizens’ initiatives have been made and submitted to Parliament since 2013. The most significant of these is probably the act allowing marriage between persons of the same sex. As in all countries based on civil law jurisdiction, the government manages the process of all central law-making activities. It initiates the law-drafting projects, prepares the proposals, decides the timetables and finally makes decisions to submit a proposal to Parliament. Government proposals are drafted by the ministry with responsibility for the matter in question. Presently, there are 12 ministries with their own field of authority in Finland. The proposal is presented to the government’s plenary session by the ministry in charge of the drafting. The proposal should contain a good explanation as to why the proposed legislation is necessary and should include general and detailed reasons supporting and specifying the proposal. When a legislative proposal has been submitted to Parliament, it must pass three important stages. The first is a preliminary debate in a plenary session of the Parliament. After that, the proposal is referred to one of the standing committees of the Parliament for detailed handling. There are currently 12 committees in Parliament whose field of operation in the law-making corresponds with the sphere of authority within the ministries of the government (Law Committee of the Parliament < –> the Ministry of Justice). The Committee considers the proposal and it can request statements from other committees of Parliament. In the beginning, the Committee normally hears the representatives of the ministry in charge and thereafter various experts and stakeholders, as well as parties that have already been consulted in the course of preparing the proposal within the government. The handling of the Committee is decisive for the content of the proposal. The content of the

19 See

20 Act

s 73 of the Constitution. 12/2012.

Legislation in Finland  173 proposal adopted by the majority of the Committee and its possible amendments establish the basis for the final decision-making of the Parliament. The third important stage of the law-making procedure in Parliament consists of decision-making in the plenary session when passing the act. This decision-making is based on the report of the Committee, not on the government proposal, as previously mentioned. Normally, the majority of Parliament either approves or rejects the proposition prepared by the Committee in question. When an act has been passed in Parliament, it is sent to the President of the Republic for confirmation. There are in the Constitution specific rules for such exceptional situations in which the President does not confirm the act. After the confirmation of the President, the act will be published in the Statute Book of Finland and it can enter into force. One important stage of the law-making procedures in Finland is parliamentary review regarding the constitutionality of legislative proposals. Already when the government is drafting a proposal, the starting point is to avoid legislation that contradicts the Constitution and would therefore require the qualified enactment procedure used for exceptions to the Constitution. In the event that doubts have been raised about the constitutionality of the proposal during the drafting process or in Parliament, the proposal will be sent to the Constitutional Law Committee. Its composition follows the same system as the other parliamentary committees and in principle it works in the same manner, but its role differs somewhat from other committees. It is depicted as a ‘peculiar, quasi-judicial body’ striving at unanimous statements.21 Its statements are considered binding by other parliamentary committees and therefore they do result in changes in a proposal according to the statement of the Constitutional Law Committee. In Finland, this mechanism fulfils the function of an abstract ex ante mechanism for reviewing the constitutionality of legislation. Decrees, the most significant sub-legal regulations in Finland, can be issued by the President of the Republic, the government or a ministry, as mentioned earlier. A decree will be drafted by the ministry with responsibility for the matter in question. A proposal for a decree contains the proposed rules and is always accompanied by a memorandum, which explains the authorisation given by statutory law and provides arguments for the decree. In summary, in the Finnish legislative system, the role of the government is central, even decisive in practice. The role of the Parliament can in most cases be described as reactive. Over the last few decades, the Parliament has adopted about one-half of the government proposals without changes and has made mostly linguistic or technical corrections to the rest of them.22 However, two reservations are essential in this respect. In particular, those political parties that in Parliament represent the majority and support the current government naturally have a range of ways to influence the contents of law reforms while they are under preparation in government via various normal political channels; they do not need to employ this influence in Parliament. In addition, it seems likely that the Parliament has lately taken on a somewhat more active role, especially in relation to certain major legislative reforms.

21 J Lavapuro, ‘Constitutional Review in Finland’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012). 22 R Ahtonen, A Keinänen and M Kilpeläinen, Eduskunnan valiokuntien näkemys lainvalmistelutyön laadusta. OPTL:n tutkimustiedonanto 111.

174  Jyrki Tala

10.5.  The Law-Drafting Procedure in Finland The preparation and consideration of a government proposal is a multi-stage process. It is supposed to begin with preliminary preparation, during which the need for the law reform, the assignment for the drafting process and the composition of the preparatory work are outlined.23 Unfortunately, this stage is often conducted too hastily. After the political or administrative decision to launch a law-drafting project, the so-called principal preparation is conducted. In theory, the objective of this stage is to lead to a full-scale government proposal, including proposed legislation with general and detailed reasons. The next step is normally a consultation process, in which stakeholders, various authorities and non-governmental organisations (NGOs) can provide their feedback and experience to the proposal. In Finnish legislative drafting, large consultations are normally utilised. After the consultation, a continued preparation takes place, in which the outcome of the consultation is taken into consideration. The purpose of this stage of drafting is to provide to the government with a solid basis for making a decision about submitting the proposal to Parliament. As already mentioned, legislative drafting is decentralised within the Finnish government, so that each ministry is responsible of law drafting within its own field of authority.24 In the various ministries, most law-drafting projects are currently assigned to working groups. The composition of these groups varies depending on the significance and quality of the project. In major projects, a large working group is often established, which can consist of representatives of other ministries or other public authorities, representatives of central stakeholders in question, NGOs and on some occasions experts from universities or research institutes. Minor law reforms can be prepared by only one or a couple of ministerial civil servants. In the past, major law reforms were often prepared by large law-drafting committees consisting, in particular, of representatives of all the relevant political parties in Parliament and some experts. The status of these committees was more independent than the position of current working groups, which are more easily politically guided than the committees ever were. Today, committees are a fairly rare phenomenon. In Finnish law drafting, no sharp line is drawn between those who are experts on the substance in question and those who are experts in legislative drafting. However, the law drafters in the ministries are supposed to have both expertise in policy matters within the field in question, as well as sufficient craftsmanship to write and finalise the legislative proposal. In 2016, a working group, whose task has been to develop the quality of law drafting within the government, mapped the resources of various ministries for legislative drafting. In total, more than 550 person-years were used annually for law-drafting activities. This roughly corresponds to information from previous years. The number of such ministerial law drafters, who use more than half of their labour input to legislative drafting, was just above 550.25 23 M Niemivuo, ‘Legislative Drafting in Finland’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012). 24 S Höfler, M Nussbaumer and H Xanthaki, ‘Legislative Drafting’ in Karpen and Xanthaki (n 1). 25 Cooperative working group for improving law drafting. Publications of the Ministry of Justice. Memorandums and statements. 2019:29.

Legislation in Finland  175 In terms of the content of legislative drafting, four basic steps can be identified, as the law-drafting guidelines below also emphasise.26 First, a proper description should be made of the current situation and its problems in the field in question. Second, the objectives of the reform should be considered and defined. Thereafter, an exploration of different alternatives to promote achieving the objectives of the reform should take place. Based on this information, a careful impact assessment should be conducted on the two or three most relevant alternatives. Through these basic steps, the drafting should lead to a well-drafted proposal. However, it is interesting to note that there is very little empirical information to elucidate the factual working methods, interactions and intellectual procedures in the course of law drafting. This is the case in Finland, but in all likelihood in other European countries too. Some general observations can be presented here. From the law drafters’ perspective, it is justified to note that an instrumental view on lawmaking seems to dominate the whole procedure.27 This means that legislative reforms are understood as means to promote law-drafting objectives. The instrumental view on legislation covers both the debate on the benefits and disadvantages of a particular law reform as well as the political decision-making process relating to it. It also seems to be an essential element of various law-drafting guidelines and programmes of the OECD. Another common feature in almost all legislative drafting is the disagreement between different actors participating in the preparatory work or decision-making surrounding it.28 The disagreement may concern, for example, the need for the law reform in general, its proper content and its likely impacts. It is crucial to note that in the course of law-making, there are disagreements not only between different political parties, stakeholders and NGOs, but often also between prominent experts in the field. One key point of legislative drafting is to enable and create a sufficient consensus on the proposal through discussions, justifications, negotiations and compromises. Lack of time and lack of a sufficient knowledge base are also almost inevitably typical features of legislative drafting. Limited time and inadequate information seem to cast a shadow on almost all legislative drafting. Nowadays in Finland, there are numerous instructions and recommendations guiding legislative drafting, three of which are the most influential. The Bill Drafting Instructions, the current version of which was adopted by the Secretaries of State in 2019, appear to deal with only the structure and headings of a government proposal, but in practice they actually significantly guide both the contents and proceedings of law drafting. The reform of these instructions is currently under way. In 2013, the government issued a Legislative Drafting Process Guide. This compartmentalises the progression of a major legislative project into seven stages, beginning with the initiation of an act and ending with its enforcement and monitoring.29 Finally, there are the the Impact Assessment in Legislative Drafting Guidelines (published in 2008), the main purpose of which is to ensure that adequate information on the effects of the proposal at hand is provided to the decision-makers.

26 Niemivuo (n 23). 27 B Tamanaha, Law as a Means to an End (Cambridge, Cambridge University Press, 2006); J Tala, ‘Better ­Regulation through Programs and Quality Standards: Are New Perspectives Needed?’ (2011) 4(2) Legisprudence 193. 28 J Waldron, Law and Disagreement (Oxford, Clarendon Press, 1999). 29 www.finlex.fi.

176  Jyrki Tala These instructions and guidelines are legally non-binding. Most senior officials who draft legislation are at least to some extent aware of them, even if there are deficiencies and problems in following them, as will be seen in the next section. The contents of the Finnish instructions and guidelines largely correspond to the widely adopted Better Regulation principles that the OECD, in particular, has launched and confirmed.30 The issues concerning the formal quality and technique of legislation (formal legisprudence) are in Finland considered and solved as an integral part of the course of legislative drafting. This includes the language, style and structure of the proposed regulation, the use of references and general clauses as well as the specificity of rules, ie, how general or specific the proper formulation of the rules should be. The starting point is that the officials of a ministry have the necessary capacity and skills to write the government proposals that the ministry is in charge of. In Finland, there are also instructions and guidelines on the technical quality of legislative proposals. The current handbook was published in 2013 and is only available in Finnish.31 The Web version of the handbook has been – and will be – completed shortly. The main thrust of the handbook corresponds largely to the content of similar guidelines in other countries. First of all, the handbook deals with general issues of legislative drafting that often prove to cause problems for law drafters, such as taking into account the requirements imposed by the Finnish Constitution or EU law. Moreover, many typical issues relating to legislative technique are handled, such as the structure of the acts, utilising specific definitions as part of rules and issues regarding the entry into force of the regulation. There is also a specific section on language in the handbook. The main objectives are that proper, plain language should be used and that the proposed legislation is linguistically and technically complete as well as judicially flawless. In addition, the handbook emphasises that the legislator is always compelled to write rules on a conceptually fairly high level of abstraction. On the other hand, the law drafter has to take into account the fact that single rules will always be read and understood as part of the whole of the legal system.

10.6.  Monitoring and Improving the Quality of Legislation in Finland Problems relating to the quality of legislation and the criticism of its results are a permanent phenomenon in Finland, as well as in most other well-developed Western countries. This kind of debate often appears in the context of a single law reform causing unexpected problems or unsatisfactory results. Generally, there seems to be a fairly comprehensive consensus at the political level of the need to improve the quality of legislative drafting and legislation in order to decrease the cost of legislation and unnecessary bureaucracy. Against this background, various Better Regulation programmes have been launched in Finland since 2000, though the results have been modest.



30 OECD,

‘Recommendation of the Council on Regulatory Policy and Governance’, 2012. opas, www.finlex.fi.

31 Lainkirjoittajan

Legislation in Finland  177 Within the Finnish government, there currently exist two permanent institutional bodies whose purpose it is to safeguard the quality of proposed legislation. In the Law Drafting Department of the Ministry of Justice, a special unit, the Bureau of Legislative Inspection, scrutinises the technical quality of all government proposals before they are submitted to Parliament. The unit is supposed to monitor the compliance with the aforementioned Bill Drafting Instructions, but nowadays it focuses predominantly on the structural and linguistic quality of the proposed rules. After its scrutiny, the law drafters of the ministries make the necessary corrections. All ministries are obliged to submit their legislative proposals for scrutiny to the Ministry of Justice. The ministries generally adhere to this obligation, with few exceptions. This scrutiny arrangement has been used in Finland for over 80 years. In April 2016, the Finnish Council of Regulatory Impact Analysis was created, based on a Governance Decree. The task of the Council is to carry out impartial and independent analysis of regulatory impact assessments. It issues statements on assessments included in draft government proposals before they are submitted to Parliament. The Council consists of a chairperson and eight other members, who are appointed by the government for a term of office of three years. The Council must possess expertise in law drafting as well as sufficient expertise to analyse different impact areas. Administratively, the Council is based in the Prime Minister’s Office. It has two secretaries and one permanent expert, all of whom are civil servants attached to the Office. However, it is crucial to note that the Council acts as a politically and generally independent body when undertaking its duties. The Council independently decides which draft proposals it will scrutinise. The goal has been that at least the most significant proposals should be assessed, as well as drafts from diverse ministries. So far, 25–30 drafts have been assessed annually (the figure was 27 in 2017), as was originally outlined when the Council was established.32 The secretary prepares the statements for the Council. The Council also participates in cooperation with equivalent bodies in seven other European countries.33 The statements of the Council have two objectives. The immediate goal is to get the drafters of the proposal in question to improve the impact assessment of the proposition. At a rough estimate, half of the recommendations of the Council have so far led to improvements. A more important objective of the Council is, especially in the long term, to improve the quality of all legislative drafting within the government by emphasising and specifying the basic requirements of qualitatively good impact assessment. The statements of the Council have so far included plenty of critical remarks on the quality of the current Finnish legislative practices.34 A considerable proportion of the draft government proposals analysed have been fairly deficient. One recurring deficiency relates to the quantitative assessment of impacts. They have often been presented only in qualitative terms, leaving even the general level of the most relevant costs and benefits unclear. The



32 Finnish

Council of Regulatory Impact Analysis, ‘Annual Review 2017’. Europe. 34 Finnish Council of Regulatory Impact Analysis, ‘Annual Review 2016 and 2017’. 33 RegWatch

178  Jyrki Tala Council has also often recommended improvements related to impacts on the ­activities of authorities, the environment or various social groups. According to the Council, comparisons between various options should be used more extensively in draft proposals to establish why the measures put forward constitute the best means of achieving the desired objectives. Similar critical remarks have already previously been raised in several Finnish legislative studies.35

10.7.  Some Observations on Legislative Studies and Teaching in Finland Ex post studies on the functioning and impacts of single law reforms in Finland are generally conducted in various ways. However, it is important to note that there is currently within the government no systematic mechanism to carry out ex post studies on even the most influential law reforms. Occasionally these kinds of studies are carried out, launched and financed by the government, or they may be part of a research programme of a university or other research institute. So far there has been no effort made by the government, which is the most central actor in law making, to systematically arrange the results of ex post studies conducted by various actors and combine it with the regulatory policy of the government. So far, legisprudence as a research field or means to support Better Regulation activities lacks a firm or comprehensive basis in Finnish universities. The longest research tradition in this field can be found in the current Institute of Criminology and Legal Policy, which nowadays is part of Helsinki University (having previously been the independent National Research Institute of Legal Policy). Since the mid-1990s, the Institute has fairly regularly published research reports on various subjects of legislative studies. In addition, there are some minor research and teaching activities in other Finnish universities, which are most often carried out by their law faculties. Yet, it would be unfair to claim that they give legisprudence an essential role. Within the government, training courses mainly aimed at junior law drafters are regularly arranged. The courses are managed by the Ministry of Justice.

Further Reading R Ahtonen, A Keinänen and M Kilpeläinen, National Research Institute of Legal Policy. Research Communications 111/2011 Finnish Council of Regulatory Impact Analysis, ‘Annual Review 2016 and 2017’ R Hahn and A Renda, ‘Understanding Regulatory Innovation: The Political Economy of Removing Old Regulations before Adding New Ones’, August 2017, Technology Policy Institute

35 For example, K Rantala, ‘Poor Quality of Legislative Drafting in the Government Top Projects: Summary’. National Research Institute of Legal Policy, Research Report 255/2011.

Legislation in Finland  179 R Harris and K Sawyer, ‘How to Run a Country: The Burden of Regulation’, December 2014, Reform (Think Tank) J Lavapuro, ‘Constitutional Review in Finland’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012) 127–39 M Niemivuo, ‘Legislative Drafting in Finland’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012) 61–73 T Ojanen, ‘The Europeanisation of Finnish Law: Observations on the Transformations of the Finnish Scene of Constitutionalism’ in K Nuotio et al (eds), Introduction to Finnish Law and Legal Culture (Helsinki, Publications of the Faculty of Law, University of Helsinki, 2012) 97–110 K Rantala, ‘Poor Quality of Legislative Drafting in the Government Top Projects: Summary’. National Research Institute of Legal Policy, Research Report 255/2011 K Rantala, A Liimatainen, A Rytioja and M Keränen, ‘Vaikutusten arviointi ja lainvalmistelun perustietoja vuoden 2013 hallituksen esityksissä’, University of Helsinki, Institute of Criminology and Legal Policy. Research Briefs 8/2015 OECD, ‘Recommendation of the Council on Regulatory Policy and Governance’, 2012 L Senden, Soft Law in European Community Law (Oxford, Hart Publishing, 2004) K Sorsa, Kansainvälisen kaupan arvoketjujen sääntely: yhteiskuntavastuun ja ennakoivan oikeuden tarkastelua (Regulation of Globval Value Chains: Examining Corporate Social Responsibility and Proactive Law) (Turku, Turun yliopisto, 2011) J Tala, ‘Better Regulation through Programs and Quality Standards: Are New Perspectives Needed?’ (2011) 4(2) Legisprudence 193–211 ——. Lagstiftningsvärlden förändras – regelverket fortsätter att växa. Nordisk administrativt tidskrift 2/2013

180

11 Legislation in France KARINE GILBERG

Context Although the term ‘légistique’ (legisprudence in English) has recently become popular in France – the first definition of the term was given by J-M Woerhling in a 1983 paper1 – the roots of legisprudence are quite ancient in the history of French law. Indeed, since at least the eighteenth century, which is seen as a historical landmark for legisprudence,2 the quality of the law has been a recurrent concern of French scholars who elaborated a theory or science of legislation; it has also been a practical issue for the public authorities.3 Since the French Revolution, extensive work has been carried out on ‘legislative technique’ at different points in time (see, in particular, the codification of French law),4 with a view to producing law that is uniformed, rational, general and stable. French legisprudence as we know it today is the result of a more recent process. Its current three branches – on the procedure, the form and the substance of the law – are the result of a change in perspective, especially as regards statute law. Statute law was once considered in France to be the ultimate expression of rationality and even formal perfection (see the French Légicentrisme).5 In the 1980s, this was challenged and legislation was subjected to new requirements of rationality and efficiency.6 A well-accepted view was that the ever-increasing number of statutes was leading to a rapid deterioration in their quality: too technical, and sometimes too general, non-binding and generally poorly drafted to the

1 Jean-Marie Woerhling, ‘L’évolution du rôle du droit dans l’action administrative’ (1983) 26 Revue française d’administration publique 134, 140. 2 ‘Montesquieu had a society in mind which would develop in a limited legal framework, carefully adjusted by the government leader’ (translations by the author): D Baranger, Penser la loi. Essai sur le législateur des temps modernes (L’esprit de la cité) (Gallimard, 2018). 3 The government, the Parliament and politicians, and the Conseil d’Etat (in its advisory role to the government) all expressed their concern about the necessary quality of legislation. 4 For more detail, see K Gilberg, ‘La légistique au concret: les processus de rationalisation de la loi’ (‘Legisprudence in Practice: Rationalisation of Law-Making’) (PhD thesis, Université Paris 2, Panthéon-Assas, 2007) 4–9. 5 This ‘Légicentrisme’ is said to be exemplified by the 1791 French Constitution (art 3, tit III, ch II, s I): ‘In France, there is no higher authority than Legislation.’ 6 Jacques Chevallier, ‘La rationalisation de la production juridique’ in Charles-Albert Morand (ed), L’État propulsif (Publisud, 1990).

182  Karine Gilberg detriment of the French economy and society. This conclusion had not been fully supported by evidence,7 but was largely shared by scholars and public authorities.8 The term ‘légistique’ was itself popularised both by scholars and public authorities at a time when ‘Better Regulation’ progressively became one of the top priorities of the French government.9 At first, Better Regulation was just one objective among many in the modernisation of public administration and different programmes were introduced to address Better Regulation issues: Prime Minister’s instructions were regularly issued to address legislative drafting issues (see the Instruction on the elaboration of draft bills and secondary legislation, first issued in 1974, which was regularly10 updated until the publication of a Guide de légistique – Legisprudence Manual – in 2005).11 From the mid-1990s, Better Regulation became a comprehensive governmental programme based on legal requirements (even constitutional ones), covering all aspects of legisprudence with a view to: • fine-tuning the law-making process, to foster good cooperation among its key players (ministries, Parliament, stakeholders etc) and provide them with a level playing field (procedural legisprudence) (section 2); • introducing new evaluation requirements (substantial legisprudence) to be more systematic in the preparation and implementation of legislation (section 3); • improving legislative drafting and enhancing the legibility of statutes (formal legisprudence) (section 4); • rationalising existing and new norms to ensure the maintenance of more complex network of legal provisions (section 5). Making legisprudence tools more sophisticated will not ensure by itself the quality of ­legislation if legislative drafters and key players are not fully trained to use them. Although some training programmes were set up, some more efforts are still needed in this field (section 6). In order to capture the progressive affirmation of legisprudence tools and principles in France over the last 30 years, it is first necessary to consider its objectives: legislation and the law-making process (section 1).

7 Rachel Vanneuville, ‘Les enjeux politico-juridiques des discours sur l’inflation normative’ (2009) 11(1) Parlement[s], Revue d’histoire politique 80–91. 8 It would be impossible to list the numerous academic papers, statements and public reports regarding the poor quality of legislation. 9 See in particular, the Instruction of 15 June 1987 on codification; the Instruction of 25 May 1988 on governmental work (Circulaire relative au travail gouvernemental); and the later Instruction of 21 November 1995 on experimentation of a regulatory impact assessment procedure (Circulaire relative à l’expérimentation d’une étude d’impact accompagnant les projets de loi et de décret en Conseil d’État). 10 Circulaire du 31 juillet 1974 relative à l’élaboration des projets de loi et des textes publiés au Journal officiel; Circulaire du 21 mai 1985 dite Steinmann relative aux règles d’élaboration, de signature et de publication des textes au Journal officiel. 11 The third edition of the Manual (2017) is available online at: https://www.legifrance.gouv.fr.

Legislation in France  183

11.1.  Legislation in France: The Prevalence of Statutes in a Highly Codified Legal System It is commonly admitted that statute law is the primary source of French legislation and the primary focus of legisprudence in France.12 Statute law is, according to Article 6 of the Declaration of Human and Citizens’ Rights, the ultimate ‘expression of the general will’. Thus, statutes had long been at the apex of the French pyramid of norms. This situation changed under the influence of several phenomena. The first of these is the ‘constitutionalisation’ or ‘fondamentalisation’13 of French law. Actually, since its establishment by the 1958 Constitution, the Conseil constitutionnel (the French court reviewing the constitutionality of statutes) has strengthened its control over bills (through preliminary rulings14 under Article 61 C)15 and, since the 2008 constitutional overhaul, it controls existing legislation through the ‘question prioritaire de constitutionnalité’ (a constitutional review mechanism under Article 61-1 C). The second phenomenon which also affects the apex of this pyramid is the ‘globalisation’ of French law16 under the influence of international and EU law.17 After a long period of resistance (some would say hesitation), the highest French courts eventually all ruled in favour of the primacy of EU law18 over national statutes, although with some limits based on the ‘constitutional identity of France’.19 To cut a long story short, this evolution unfolds into two main periods. The first of these started in the 1960s, during which the Conseil d’Etat (the French highest administrative law court) and the Cour de cassation (the French highest judicial court) had divergent views: from 1968 (the Semoules ruling)20 until 1989 (the Nicolo ruling),21 the Conseil d’Etat ruled that national lex posterior prevails over prior EU law.22 The Conseil d’Etat considered that it was not entitled to examine secondary legislation or administrative measures, ignoring existing statutes even if these were in breach of EU law. The Conseil d’Etat reversed its case law in its 1989 Nicolo ruling, admitting the supremacy of EU law (ie, the EC Treaties) over national statutes (even lex posterior) in order to scrutinise secondary regulations against EU law when French legislation is non-compliant with EU law.

12 A higher number of pieces of public guidance have been addressed to drafters of intra-legislative norms. See the recent Prime Minister’s Instruction of 26 July 2017 on management of secondary regulation and its impact (‘Circulaire relative à la maîtrise des textes réglementaires et de leur impact’). 13 Defined as the growing influence of human rights on shaping national legislation. 14 Especially since its landmark decision no 71-44 DC, 16 July 1971, Liberté d’association (‘Freedom of association’). 15 ‘C’ refers here to the 1958 French Constitution. 16 See Jacques Chevallier, ‘Mondialisation du droit ou droit de la mondialisation?’ in Charles-Albert Morand (ed), Le droit saisi par la mondialisation (Bruylant, 2001) 37–61. 17 Jean-Bernard Auby, La globalisation, le droit et l’État, 2nd edn (LGDJ, 2010). 18 The case of international law is not examined here. 19 See in particular Conseil constitutionnel, 27 July 2006, decision no 2006–540 DC (Information Society), para. 19. 20 Conseil d’Etat (CE), 1 March 1968, Syndicat général des fabricants de semoules de France. 21 CE, 20 October 1989. 22 For the Cour de cassation, EU Treaties shall prevail over national statutes (1975 Ruling, Cafés Jacques Vabre).

184  Karine Gilberg This case law extended to EU regulations23 and directives,24 as well as general principles of EU law.25 The second period opened in 2004: based on Article 88-1 C (introduced by the 1992 constitutional overhaul),26 the Conseil constitutionnel (the highest French constitutional court) ruled in 200427 that transposition of EU directives is a constitutional requirement28 and, later, expressly included compliance with EU regulations in this requirement.29 Based on this requirement, the Conseil may declare domestic provisions that are obviously incompatible with EU law to be unconstitutional. The only limit to this requirement is when EU law conflicts with a ‘rule or principle inherent to the constitutional identity of France’.30 Two other phenomena have affected the bottom of the pyramid of norms: the expansion of intra-legislative norms31 and the development of soft law. The latter has been a trend in both the private32 (through self-regulation with the adoption of codes of conduct and codes of ethics) and public sectors (through the adoption of charters which typically list commitments of public administrations towards citizens).33 In principle non-binding, the nature of soft law has recently been re-evaluated by the Conseil d’Etat (the highest French administrative law court).34 Despite those phenomena, statute law remains at the very heart of the French legal system. Paradoxically, the first aim of the 1958 Constitution was to set limits to statute law: in order to do so, Article 34 precisely circumscribed areas in which statutes may be adopted, and Article 37 provides that any other area falls under the competence of secondary legislation. However, in practice, the Conseil constitutionnel declared as constitutional statutes that were taken outside the scope of Article 34 (see Decision no 82-143 DC, 30 July 1982, ‘Blocages des prix et des revenus’, §57), which means that there are no boundaries as regards the material scope of statutes. Furthermore, the 1958 Constitution provides a variety of statutes, differentiating them either by their author or their content. As regards their author, first and foremost, statute law is an act of Parliament. Even though Article 39 C provides that the initiative of bills belongs 23 CE, 24 September 1990, Boisdet. 24 CE, 28 February 1992, Rothmans International France et Philip Morris. 25 CE, 3 December 2001, Syndicat national de l’industrie pharmaceutique. 26 Loi constitutionnelle no 92-554 du 25 juin 1992 introduced art 88-1 C, which mainly provides for the participation in the EU. Until the 2004 rulings, this provision had been regarded as merely declaratory. 27 See the Conseil constitutionnel’s decisions of 2004: no 2004-496 DC of 10 June 2004 (‘Loi pour la confiance dans l’économie numérique’ – Law on trust in digital economy), followed by decision nos 2004-497 DC of 1rst July 2004, 2004-498 DC of 29 July 2004 and 2004-499 DC of 29 July 2004. Scholars consider that in doing so, the Conseil constitutionnel has identified a constitutional ground for the requirement to implement EU law, considering EU law through the Constitution. 28 For an implementation of this requirement by the Conseil d’Etat, see CE, ass, 8 February 2007, n° 287110, Sté Arcelor Atlantique et Lorraine. 29 Decision no 2018-765 DC of 12 June 2018, Loi relative à la protection des données personnelles. 30 See in particular Conseil constitutionnel, 27 July 2006, decision no 2006–540 DC (Information Society), para 19: ‘The compatibility issue precedes and postpones that of identity.’ 31 See V Lasserre, Le nouvel ordre juridique. Le droit de la gouvernance (The New Legal Order: The Law of Governance) (LexisNexis, 2015). 32 Bruno Oppetit, ‘L’engagement d’honneur’ (1979) Revue Dalloz chronique 108. 33 Geneviève Koubi, ‘La notion de charte: fragilisation de la règle de droit ?’ in Jean Clam and Gilles Martin (eds), Les transformations de la régulation juridique (LGDJ, 1998) 165–82. 34 See the Fairvesta International and Societé Numéricable rulings, CE, 21 March 2016. The Conseil d’Etat is also an advisory body to the government: art 39 C provides that the Conseil d’Etat must deliver an opinion on each draft bill before it is introduced to the Council of Ministers, while art L 112-1 of the French Administrative Law (‘Code de justice administrative’) provides for its advisory role on draft secondary legislation.

Legislation in France  185 equally to the Prime Minister and to Members of Parliament (MPs), in most cases, they are introduced by the government: between 2012 and 2017, 67.5 per cent of adopted statutes were introduced by the government,35 and this figure rose to 76 per cent between June 2017 and December 2018. However, the Parliament should not be considered as a ‘rubber stamp’, as is often stated: for example, 69 per cent of the content of the draft bill on agriculture and food supply (the so-called EGALIM Law) was modified in Parliament.36 Statute law can also be passed through a referendum (‘lois référendaires’); the procedure has been used few times and in relation to major issues as its outcomes may be uncertain and may entail high political risks.37 The 2008 constitutional overhaul introduced the ‘referendum d’initiative partagée’ (shared initiative referendum), by which one-fifth of the Parliament, with the support of one-tenth of the people registered on the electoral roll, may initiate such a procedure.38 In force since 2013, it was first used on 10 April 2019.39 The French Constitution also provides different categories of statutes depending on their content: laws on the budget (Articles 47 and 47-1 C); and ‘lois organiques’ (ie, secondary legislation on constitutional law), which supplement the Constitution on matters mainly relating to the organisation of public powers. The largest category in terms of number is that of ‘ordinary statutes’ (‘lois ordinaires’, ie, any other statutes passed in Parliament – see especially areas listed in Article 34 C) and most developments in legisprudence target this category of statute law. Lastly, it is worth mentioning the ‘lois d’habilitation’ of Article 38 C as this category has expanded over the last few years.40 According to Article 38 C, the Parliament authorises the government to issue measures in one or several of the areas listed by Article 34 C. The measures issued by the government (so-called ‘Ordonnances’) are not statutes but secondary regulations until they are approved by an act of Parliament (‘lois de ratification’). Generally, Parliament’s vote consists of a blunt validation of the ‘ordonnances’, but in a recent major reform, Parliament amended the ‘ordonnance’ before its final validation.41 The French legal system is commonly described as a highly codified system. Indeed, France benefits from a long-standing experience and tradition of codification since the Royal Ordonnance of Montil-lès-Tours of 1453 and the Napoleonic codification (1804–10). Since then, codification has been re-activated twice (first in 1948–1987

35 A total of 434 bills were introduced into the Parliament by the government, of which 339 were passed and published; 1,823 bills were introduced by MPs, of which 110 were passed and published. See www2.assembleenationale.fr/14/statistiques-de-l-activite-parlementaire-sous-la-xive-legislature. 36 https://www.lafabriquedelaloi.fr. 37 For a list, see https://www.conseil-constitutionnel.fr/referendum-sous-la-ve-republique/tableau-recapitulatifdes-referendums-de-la-veme-republique. 38 See loi organique 6 décembre 2013, which provide details on the procedure set out by art 11 of the Constitution. 39 ‘Proposition de loi présentée en application de l’article 11 de la Constitution visant à affirmer le caractère de service public national de l’exploitation des aérodromes de Paris’ (to prevent the privatisation of Paris airports): www.assemblee-nationale.fr/15/propositions/pion1867.asp. 40 E Steiner, French Law: A Comparative Approach (Oxford University Press, 2018) 144: ‘The advantage of ordonnances is that legislation can, in this way, be introduced more quickly without going through all the time-consuming legislative procedures.’ A total of 293 ordonnances were issued by the government during the XIVth legislature and 58 so far for the XVth legislature. 41 See Law no 2018-287 of 20 April 2018 validating the ordonnance on law contract reform ratifying ordinance number 2016-131 of 10 February 2016 amending the law on contracts, the law on general provisions and proof of obligations.

186  Karine Gilberg and since 1989).42 Codification has been a highly institutionalised and continuous process. The process based on a renewed methodology (‘droit constant intelligent’)43 aimed at re-structuring and harmonising existing legal provisions, and repealing obsolete law provisions. New codes were adopted and existing ones were re-shaped or amended.44 However, describing the French law as a comprehensive codified system would be an overstatement: in January 2018, despite the 68 codes in force, only 63.6 per cent of legislative provisions and 38.1 per cent of secondary legislative provisions were codified. The densification of the French legal system since 1958 has led to a critical situation to which promoters of legisprudence intend to give practical answers to prevent the system from getting out of hand.

11.2.  Procedural Legisprudence: From a Formal Institutional Set-up to Law-Making in Practice Academics consider that the 1958 French Constitution set up a ‘parliamentary system with a twist’.45 Typically, this finding is evidenced by reference to the prevalent role of the government in the law-making process.46 It prevails to such an extent that the Parliament has been described as a ‘rubber stamp’ chamber, which it clearly is not when its activity is scrutinised (see above). The law-making process even involves an increasing number of actors. For legisprudence to be efficient, the process needs to be well-structured and ­regulated to ensure good coordination among its key players.

11.2.1.  Regulating the Governmental Phase of the Law-Making Process47 Considered to be a highly specialised48 task, legislative drafting has been handed over to line ministries, especially to their technical departments in consideration of their field of expertise:49 they are in charge of the first draft and also deliver expertise during the discussion 42 Décret n°89-647 of 12 September 1989 on the composition and functioning of the High Commission for codification. 43 Article 3 of the Law no 2000-321 of 12 April 2000 rights of citizens in their relations with public administrations. 44 Steiner (n 40): ‘Restatement of the law, whereby a given branch of law is set out in a single, coherent, and comprehensive piece of legislation.’ 45 S Boyron, The Constitution of France: A Contextual Analysis (Bloomsbury Publishing, 2012) 76; Denis Baranger and Christina Murray, ‘Systems of Government’ in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge, 2013) 73. 46 Article 20 § 1 C specifies that the government determines and conducts national. Statute law is an essential instrument to achieve policy goals. 47 Since the Fifth Republic, the focus has turned from the parliamentary procedure to the governmental phase of the law-making process. Still, Eugène Pierre’s Traité de droit politique, électoral et parlementaire, first published in 1878, is considered as a reference. 48 More due to the increasingly technical nature of the content of legislation than the complexity of the legislative drafting techniques themselves. 49 Circulaire du Premier ministre, 7 juillet 2011 relative à la qualité du droit: the organisation of each ministerial department makes it possible, in close cooperation with the SGG, to programme as early as possible the different stages of the elaboration of draft laws and to operate a dynamic follow-up of the law-making process.

Legislation in France  187 of the bill before Parliament (in drafting governmental amendments or advising the Cabinet of Ministers). Interestingly, such institutional arrangements were made long before the Fifth Republic (1958), at a time when the Parliament was still the prevalent institution50 but ministries were considered too autonomous.51 Conversely, throughout the Fifth Republic, such a technical approach was considered to be consistent with the growing complexity of legislation, even though this model has its downsides: for the Conseil d’Etat,52 it encourages a ‘shortsighted approach’ and often leads to conflicts between ministries (which may have different views on the same legal issue). To prevent such difficulties, two mechanisms were developed and promoted as major procedural legisprudence tools.53 The first one, based on hierarchy, regulates the progression of the process within line ministries and at an interministerial level: it ensures successive validations of the first draft at both the administrative and political levels (by line ministers’ and the Prime Minister’s cabinets). However, the process is not linear, as it goes back and forth until the draft is considered satisfactory from a technical and political viewpoint. The second mechanism is based on coordination to reconcile divergent positions and ensure that all players perform their tasks in a timely manner. This coordination is ensured either at a political level (the Prime Minister’s or even the President’s cabinet) or by interministerial administrative bodies, especially the Secrétariat général du Gouvernement (SGG).54

11.2.2.  Overseeing the Law-Making Process Two oversight bodies play a major role in the governmental phase of the law-making process: the SGG and the Conseil d’Etat55 are advisors to the government56 in relation to formal, procedural and substantial legisprudence. The SGG advises ministerial departments on the quality of legislative drafting. Its ‘Service de la législation et de la qualité du droit’57 also provides support to ministries when performing regulatory impact assessments (RIAs). Concerning procedural legisprudence, the SGG is mostly in charge of tracking the progress of the law-making process from the initiation of the bill by the government to its final promulgation. Besides its judicial role, the Conseil d’Etat is also an advisor to the government as regards the quality of draft bills and RIAs: it delivers opinions on these drafts prior to their adoption by the Council of Ministers (Article 39, para 2 C), recommending, for instance, re-drafting of the provisions of a bill as well as restructuring a bill’s layout, or commenting on legal issues as to whether its provisions are in breach of constitutional or international norms. 50 Gérard Conac, ‘Le Secrétariat général du gouvernement: 50 ans d’histoire’ in IFSA, Le Secrétariat général du gouvernement (Economica, 1986) 11–31. 51 During the Third and Fourth Republic, by reason of a high turnover of governments, the daily work of legislative drafting was handed over to line ministries which were quite autonomous and did not coordinate. 52 Conseil d’Etat, Simplification et qualité du droit. Etude annuelle (La Doc Française, 2016) 50. 53 See Prime Minister’s instructions on governmental work. 54 A Prime Minister’s Department, the SGG is the legal advisor to the Prime Minister and is in charge of coordinating governmental work. 55 K Gilberg, ‘La fabrique gouvernementale de la loi’ (2017) La Semaine juridique, Panorama des lois 2016 6, 9. 56 The Conseil d’Etat may be consulted by the Parliament on legislative proposals (art 39, para 5 C). 57 A governmental regulation (Arrêté) of 25 June 2018 details its functions (‘relatif à l’organisation du service de législation et de la qualité du droit au Secrétariat général du Gouvernement’).

188  Karine Gilberg These opinions are delivered after a dialogue with the line ministries, which generally leads to some re-drafting; however, the government may choose not to follow the Conseil d’Etat’s opinion, even though the legal issue at stake may be quite critical.

11.2.3.  Involving Civil Society Actors in the Law-Making Process Involving non-governmental actors in the law-making process has been a major trend in procedural legisprudence with the aim of offering a level playing field to civil society actors (lobbyist, interest groups, citizens and unions). Their participation in the law-making process has taken many forms. The Guide de légistique identifies three of them: • Preparatory consultations (Guide, 2.1.3), by which the government may or even shall consult an advisory body on a draft bill considering the subject matter. • ‘Concertations’ by which the government is bound to consult ‘social partners’ on social issues (workers or employers’ unions; see the ‘Larcher’ Law of 31 January 2007). • Open consultations on the internet (Guide, 2.1.3),58 which mainly concern draft secondary legislation (see Articles L 132-1 to R 132-10 of the Code on the relations of the public with public administrations).59 These are generally held in the context of sensitive or complex legislative reforms, especially to identify stakeholders’ needs, concerns or proposals.60 France even experimented with co-drafting of legislation with the general public via open consultations (eg, the Law for a ‘Digital Republic’). Since the 1990s, deliberative democracy has taken many other forms through what is called the ‘Débat public’ (public debate): • ‘Etats généraux’,61 ‘grenelles’62 and ‘assises’, which gather together a large range of stakeholders and collect information on the context or the acceptability of a reform. • Conversely, the ‘Conférence de consensus’63 convened a limited number of participants (citizens and experts) typically to identify reform avenues in technical matters. • The government was even compelled to hold large consultations in the context of strong public protests against draft bills (leading the government to drop reforms or amend them)64 or to promote a reform. Protesters may also have very diverse social demands, 58 See Guidelines on open consultation, issued in 2018: https://www.gouvernement.fr/sites/default/files/contenu/ piece-jointe/2018/03/coepia_guide_consultations_janvier2018_0.pdf. 59 Since 2011, the list of consultations: https://www.vie-publique.fr/spip.php?page=debatsfiltres&motdebat= 5205. 60 See for instance, public consultations on blockchain technology, 24 March 2017, https://www.tresor.economie. gouv.fr/Ressources/File/434688. 61 ‘Etats généraux de la bioéthique’; see https://etatsgenerauxdelabioethique.fr/pages/la-demarche. 62 See art 7 of the Constitutional Charter on the Environment (Charte de l’environnement): ‘everyone has a right to participate in the public decision making process regarding [the] environment’. 63 ‘Conférence de consensus’ on the prevention of re-offending (‘Conférence de consensus de prévention de la récidive’), 2013: www.justice.gouv.fr/art_pix/3_1_note_information_installation_conference_consensus.pdf. To prepare the Law n° 2014-896 of 15 August 2014 on the individualisation and efficiency of criminal sentences. 64 Article 8 of Law no 2006-396 of 31 March 2006 on Equal Chances (‘égalité des chances’) was promulgated, but the President asked for its immediate amendment and that this provision should not be applied; see M Morvan, The Frontiers of Citizenship (New York, St Martin’s Press, 1991).

Legislation in France  189 as seen in the recent protests of the ‘Gilets jaunes’, which led the government to convene a ‘Grand débat public national’65 to take back control over the decision-making process. Some scholars consider that this process may transform deliberative democracy in France, although it seems too soon to draw such conclusions.66 Civil society has also wielded influence over the law-making process in more informal ways such as lobbying. Highly criticised for not being transparent, interaction with lobbyists has been recently regulated in order to foster a level playing field.67 Nevertheless, the process is not fully transparent, as the idea of having a ‘legislative footprint’ was not included in the Law. The Haute autorité pour la transparence de la vie publique (High Authority for Transparency of Public Life) recommended the generalisation of such a practice.68

11.3.  Substantial Legisprudence: A Strong Focus on Preparatory Work Although more recent than procedural legisprudence, substantial legisprudence has rapidly developed, and already some of its principles and tools were already enshrined in the Constitution (see experimental legislation,69 Article 37-1 C or Article 72 par. 470) or in secondary constitutional legislation (see RIA below). Like many other legal systems, French substantial legisprudence has focused mainly on evaluation techniques for the preparatory phase of legislation, although not ignoring ex post evaluation. This preparatory phase includes more and more public consultations to inform decision-makers on the social context (see above).

11.3.1.  A Methodical Approach to the Elaboration and Implementation of Bills Since the 1960s, prominent law professors, among them Jean Carbonnier (who is considered to be the founder of ‘legislative sociology’ in France), developed research to promote new ways for preparing legislation based on social scientific methods (such as statistical studies to assess existing practices and legislative opinion polls). Ex ante evaluations were thus implemented long before RIA was formally introduced.71 In 1995, RIA was officially 65 See https://granddebat.fr/pages/les-conferences-citoyennes-regionales. 66 See Luc Rouban’s analysis at https://www.sciencespo.fr/cevipof/sites/sciencespo.fr.cevipof/files/Version%202_ Grand%20débat_démocratie_première%20synthèse_LR_2019.pdf. 67 Law no 2016-1691 of 9 December 2016 on transparency, fight against corruption and modernisation of economy. 68 See https://www.hatvp.fr/en/high-authority/regulation-of-lobbying. 69 Sofia Ranchordas, Constitutional Sunsets and Experimental Legislation (Edward Elgar, 2014) 37 ff: experimental legislation is of temporary character; derogating from existing law; evaluation; of limited scope of application. 70 Introduced by arts 3 and 5 of the Loi constitutionnelle n° 2003-276 du 28 mars 2003 relative à l’organisation décentralisée de la République (Constitutional overhaul of the decentralised organisation of the Republic). 71 For the role of social sciences in the elaboration of draft bills in civil law during this period, see Antoine Vauchez, ‘Le droit en transitions. L’invention d’un nouvel art législatif au service de la Ve République naissante’ in Liora Israël et al (eds), Sur la portée sociale du droit (PUF, 2005) 271–88.

190  Karine Gilberg applied based on the Prime Minister’s instructions. Adopted in 1998,72 its implementation encountered numerous setbacks – it was mainly seen as an administrative constraint and the quality of RIAs was uneven. To overcome these difficulties, the Loi organique no 2009-403 of 15 April 2009 introduced a requirement to perform RIA for all bills based on a multicriteria assessment73 (including legal, economic, social and environmental impacts). There are a few exceptions to this requirement (constitutional overhaul, laws on finance74 and laws extending a state of crisis). In the absence of RIA or in the event that RIA does not respect the above-mentioned requirements, bills can be discarded by the Conseil d’Etat. Later on in the process, if the Parliament considers RIA to be insufficiently in line with Law no 2009-403 and in the event that the government disagrees with the Parliament’s scrutiny, the RIA may be referred to the Conseil constitutionnel (although this has hardly ever happened).75 Compared to RIA, ex post evaluation of legislation remains unsystematic in France but has developed at a fast pace. It is performed by a wide range of actors who have developed ad hoc methodologies: for the last 25 years, administrative oversight bodies (in particular General Inspectorates)76 and the Parliament have assumed a growing role in scrutinising existing legislation; the French government has also assigned individual experts or group of experts to carry out ex post evaluation of legislation. The Law on Bioethics is a typical example of ex post evaluation in France. First introduced by Article 21 of Law no.94-654 of 29 July 1994, the requirement for ex post evaluation was renewed by the successive statutes on bioethics.77 Furthermore, since the 1980s,78 experimental legislation has been a perfect laboratory for the ex post evaluation of social legislation and in technical fields (‘to tackle uncertainty, lack of information, prognosis problems’).79 Four statutes80 enacted during the second half of 2018 contain no less than 43 experimentation clauses. Despite this progress, criticisms have regularly been made of evaluation of legislation techniques and the way in which they are performed in practice.81

72 See K Gilberg, ‘La légistique au concret: les processus de rationalisation de la loi’ (‘Legisprudence in Practice: Rationalisation of Law-Making’) (PhD thesis, Université Paris 2, Panthéon-Assas, 2007) 438 ff. 73 See Guide de légistique, section on the ‘Fiche d’impact’, 26–28. 74 These laws are submitted to a specific assessment procedure based on Loi organique no 2001-692 of 1 August 2001 ‘relative aux lois de finances’ and Loi organique no 2005-881 of 2 August 2005 ‘relative aux lois de financement de la sécurité sociale’. 75 Décision n° 2014-12 FNR du 1 juillet 2014 Présentation du projet de loi relatif à la délimitation des régions, aux élections régionales et départementales et modifiant le calendrier electoral. 76 In charge of performing inspections in a policy field (police, justice, social affairs etc), their mission was extended to auditing, advising and even ex post evaluation of public policies. See J Pissaloux, ‘Les inspections générales au sein de l’administration française: structures, fonctions et évolution’ (2015) 155(3) Revue française d’administration publique 601. 77 For more detail, see Gilberg (n 72) 351. 78 Ranchordas (n 69) 25: ‘The first signs of experimental legislation in France date back to the kingdom of Louis XVI.’ 79 ibid 49. 80 Loi n° 2018-1021 du 23 novembre 2018 portant évolution du logement, de l’aménagement et du numérique (Law ELAN); Loi n° 2018-771 du 5 septembre 2018 pour la liberté de choisir son avenir professionnel; Loi n° 2018-898 du 23 octobre 2018 relative à la lutte contre la fraude; Loi n° 2018-727 du 10 août 2018 pour un Etat au service d’une société de confiance (Law ESSoC). 81 See Conseil d’Etat (2016): 103–06; see also Court of Auditors (Cour des comptes), Référé relatif aux études d’impact législatives dans les ministères sociaux, ref: S2018-1483, 22 June 2018. The Conseil économique, social et environnemental is currently carrying out a study on RIA: see https://www.lecese.fr/travaux-du-cese/saisines/ etude-relative-aux-etudes-d-impact.

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11.3.2.  Recurrent Criticisms: Legislative Scrutiny in Practice and its Outcomes RIAs are criticised for being performed too late in the process, being based on a weak methodology82 (namely, missing reference to the source of the data provided; calculation method is not detailed) and result-oriented (only to justify the reform). Different reasons may explain these shortcomings. First and foremost, RIA is still perceived by public servants as an administrative constraint rather than an aid to decision-making. However, this does not mean, as is broadly assumed by its critics, that draft bills were not supported by a methodical preparatory work; rather, it means that RIA may not have been key to the process. More reasons may explain this state of play, such as a lack of training in the RIA methodology and a lack of sufficient time to perform the assessment.83 A multi-dimensional RIA on all bills, as practised in France, may have been an aggravating factor. As for ex post evaluation, it is considered necessary to allow a more independent assessment of statutes and especially to strengthen the role of the Parliament. For the time being, the French Parliament has mainly focused on the effective enactment of secondary laws.84 Some promising practices emerged as regards proper ex post evaluations: for instance, four permanent commissions of the National Assembly have worked collectively, via a ‘mission d’information’,85 in order to assess Law no 2015-990 of 6 August 2015 (the so-called ‘loi Macron’). In their last report of 29 November 2018, MPs expressed their ambition to focus on the assessment of the impact of the law, namely its legal, economic, budgetary, social and environmental impacts, and the identification of potential implementation issues. Law-making is a complex process which involves a large number of actors. This may lead to bills that are a patchwork of different propositions. To avoid such a situation, legislative drafting techniques have set clear and joint formal drafting conventions to ensure the high quality of legislative drafting.

11.4.  Formal Legisprudence: From Systematisation to Constitutionalisation of Legislative Drafting Rules Legislative drafting conventions have been progressively systematised and laid down in guidelines and especially the Guide de légistique. Legislative drafters may also refer to the High Commission for codification guidelines, as most bills aim to amend existing codes, or to manuals drafted by the Parliament. Remarkably, since the 1980s, some of these legislative drafting rules have acquired a binding force. 82 See, for instance, Opinion no 395.539, 15 November 2018, in which the Conseil d’Etat underlined the insufficiencies of the RIA on the draft bill on ‘mobilités’, which were linked to the heterogeneity of the bill itself (§3). For an overview, see Conseil d’Etat (2016): 103. 83 Bills are generally produced as a result of political pressure. 84 Since 1971, the Senate has ensured such a follow-up, especially through the publication of an annual report on the implementation of Statutes. See also art 145-7 of the National Assembly Rules (Règlement de l’Assemblée nationale). 85 Rapport d’information de la mission d’information commune sur l’évaluation de la loi n° 2015-990 du 6 août 2015 pour la croissance, l’activité et l’égalité des chances économiques, dite ‘loi Macron’, Doc AN, no 1454, 29 November 2018.

192  Karine Gilberg

11.4.1.  Golden Drafting Rules Even though, according to Cornu,86 there are as many drafting styles as existing statutes, French legisprudence set golden drafting rules with a view to enhancing the legibility of statutes and facilitating the discussion of bills in Parliament. The Guide de légistique provides that each bill shall be structured according to its content, which means that there is generally no pre-defined structure.87 In practice, there are two models. The first model is based on logic: provisions are arranged in order from the most general to the most specific ones, or from the principles to their exceptions. In the second model, the statute is structured into themes. In both models, provisions regarding criminal law shall be laid down at the end of the statute, before provisions on the entry into force of the law. To further enhance the legibility of statute law, bills are also arranged in parts (‘nomenclature’): this is a fixed structure, but the number of sub-divisions depend on the length of each bill – the shortest bills are only divided into articles; medium-length bills are arranged into titles (Title I, II etc) and within each title in chapters (Chapter I, II etc) and possibly in sections. No threshold has been defined for this. Besides the general structure of statutes, French legisprudence pays a particular attention to individual provisions as the article is said to be the ‘base unit’ of statutes and shall only provide one rule. This drafting principle may be one of the most important French legislative drafting techniques, but it primarily targets the Parliament more than the final users of the law.88 There are many exceptions to these rules in practice. Bills are generally arranged in parts that follow the structure of the considered code or codes. Such a technique may hamper the immediate legibility of individual provisions. However once the bill has been passed, this issue disappears as the amendments are immediately introduced into the considered code.89 By reason of this codification requirement, provisions may also be quite lengthy: an article may amend different articles of the code or may introduce a whole section in the code. Actually, consistency of the amendments prevails over the conciseness of an individual provision. This codification constraint has also encouraged drafters to infringe upon the golden rules of French legislative drafting, such as a neutral and concise drafting style. A neutral drafting style (the so-called ‘style Conseil d’Etat’90 or ‘imperatoria brevitas’) implies that, as far as possible, provisions shall be worded in the form of general principles as ‘legal provisions are meant to cover an infinite number of legal situations, present and future’.91 This remark is not exactly a new one as lack of neutrality has always been considered a legislative drafting choice.92

86 Gérard Cornu, Linguistique juridique, 3rd edn (LGDJ, 2005) 332. 87 Guide de légistique, 281. 88 ibid 285. 89 See https://www.legifrance.gouv.fr. 90 French jurilinguists refer to Jeremy Bentham’s Tactique des assemblées législatives, vol 2 (E Dumont (ed), 1816) 165: ‘neutral terms are those to which no approval or disapproval is added – ‘habits’; as opposed to honor, generosity, gratitude, cupidity, greed’. See Cornu (n 86) 312–13. 91 Raymond Carré de Malberg, La loi expression de la volonté générale (Sirey, 1931) 4. 92 Jean Ray, Essai sur la structure logique du Code civil français (F Alca, 1926) 62.

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11.4.2.  Risky Legislative Drafting Techniques: Definition and Cross-referencing French legisprudence also draws legislative drafters’ attention to ‘risky techniques’, which should be used with great caution. In its 1991 Annual Report on Legal Certainty, the Conseil d’Etat stated that the use of legal definitions in statutes was contrary to French tradition. This statement may seem exaggerated as, in practice, legal definitions have been used for centuries in French statutes and codes.93 What the Conseil d’Etat meant was that no section of a bill shall be dedicated to a list of definitions, nor should it be placed at the beginning of an Act. In practice, definitions are included to clarify the meaning of specific words, technical terms or notions and to avoid repetitions. Such caution in the use of definition is mainly designed to prevent multiple meanings of the same term appearing in different pieces of legislation. Even though it is useful,94 as it prevents repeating provisions from one statute in another, cross-referencing is considered another risky technique which may jeopardise the legibility of statutes, as the reader will have to navigate from statute to statute (or even many others) in order to understand the meaning of a provision. Therefore, a statute provision which included too many cross-references was considered to be excessively complex and thus was declared unconstitutional by the Conseil constitutionnel.95 This case law illustrates a recent development in formal legisprudence according to which legislative drafting principles were given constitutional force.

11.4.3.  Binding Drafting Rules Some drafting rules have acquired binding force. After having limited the requirement to criminal matters,96 in 1998 the Conseil constitutionnel set a constitutional ‘principle of clarity’, according to which the legislator shall avoid lack of precision and ambiguous wording of legislative provisions.97 A second major step was taken in Decision n°99-421 DC of 16 December 1999, in which the Conseil constitutionnel set a ‘constitutional objective of accessibility and legibility of statutes’: the legislator must adopt provisions that are sufficiently precise and drafted in a non-ambiguous way so as to avoid any interpretation that would be in contradiction with the Constitution and to protect citizens from arbitrary interference.98 However, in rare cases,99 the Conseil declared a legislative provision unconstitutional based on this objective.

93 Academic research identified up to 6,700 definitions in French law; see Louis-Marie Schmit, Les définitions en droit privé (Presse de l’Université Toulouse 1 Capitole, 2017) 36. 94 Guide de légistique, 3.4.2. 95 Décision n° 2005-530 DC du 29 décembre 2005 – Loi de finances pour 2006, §§84–88. 96 On criminal matters, see Décision n° 80-127 DC des 19 et 20 janvier 1981 ‘Loi sécurité et liberté’: ‘incriminations shall be defined in clear and precise terms to exclude arbitrary measures’. 97 See, for instance, §5, decision no 98-407 DC 14 January 1999, loi relative au mode d’élection des conseillers régionaux et des conseillers à l’Assemblée de Corse. 98 The Conseil has referred to this objective in at least 63 decisions since 2002. 99 For an example, see decision n° 2019-780 DC of 4 April 2019, Loi visant à renforcer et garantir le maintien de l’ordre public lors des manifestations (on public protests).

194  Karine Gilberg The Conseil constitutionnel extended its case law in 2005, declaring provisions that obviously lack ‘normativity’ (ie, statutes shall enunciate rules)100 to be unconstitutional. Interestingly, Article 3 of the 2018 constitutional overhaul project101 amends Article 41 C (the right to amend the law): apart from programmatic statutes,102 ‘legislative propositions or amendment that are not normative’ shall be discarded. The Commission for Laws of the National Assembly suppressed this article, considering that it infringes upon the right of MPs to amend bills. These rulings attracted criticism for being too general and too fuzzy to enable an effective constitutional review of bills and for being unable to support legislative ­drafters. Interestingly, as regards normativity, the Conseil constitutionnel extended its case law to provisions whose drafting includes terms that are obviously binding.103 Although isolated, such case law may be even more confusing for legislative drafters as it lacks explicit reasoning.

11.5.  Maintenance of Legislation: Tackling the Proliferation of Norms With criticisms of over-legislation, especially its detrimental impact on society and the economy, regulating ‘legislative production’ has been another key challenge for French governments over the last 30 years. Different tools and programmes were developed to tackle the ‘proliferation’ of new norms and to re-arrange existing ones.

11.5.1.  Managing the Flow of New Norms Rationalising the legislative flow has been one of the top priorities of the Better Regulation policy (well thought-out legislation).104 To achieve this goal, French legisprudence set out different legislative drafting and management tools detailed in the Guide de légistique: • First, when a code exists, the drafter shall make sure that the new provision is written in such a way that it fits into this code (see above, ‘drafting bills in the context of codified law’); • Moreover, the issuing of a new piece of legislation shall be duly justified, as required by the RIA methodology.105 100 Decision n°2005-512 DC of 21 April 2005, para 8. 101 Projet de loi constitutionnelle pour une démocratie plus représentative, responsable et efficace (Constitutional draft bill for a more representative, accountable and efficient democracy) whose scrutiny was suspended in July 2018. 102 The Conseil constitutionnel has excluded provisions of ‘programmatic laws’, as their aim is to define ‘objectives’; see Decision no 2015-718 DC 13 August 2015 (Law on renewable energy), §12. 103 See, for instance, Décision n° 2016-745 DC du 26 janvier 2017 – Loi relative à l’égalité et à la citoyenneté, para 167. See art 68 of the Law: ‘the Nation recognizes the right for each young person … to benefit from an experience abroad whether professional or in an association’. 104 On the concept of rationalisation of legislation, see Chevallier (n 6); K Gilberg, ‘La légistique au concret: les processus de rationalisation de la loi’ (PhD thesis, Université Paris 2, Panthéon-Assas, 2007). 105 See Guide de la légistique, 1.1.1. ‘Questions préalables’: usefulness of the new regulation, and 1.1.2.

Legislation in France  195 However, as shown by the Conseil d’Etat, these management rules have not fully regulated the system, which according to the Conseil is still affected by over-regulation. The Conseil suggests re-introducing a government legislative programme to better regulate the flow of norms and, first and foremost, to set up a proper simplification of legislation policy.

11.5.2.  Managing the Stock of Existing Statutes Different initiatives were taken to re-arrange the stock of existing norms: codification (see above) and simplification. Even though it was not institutionalised, the simplification policy has taken different forms since 2003. In the first period (2003–06), the government was authorised by two statutes to simplify existing legislation in order to clarify and when necessary reform legislation in different sectors (family law, company law, labour law etc), and to cut red tape. A third draft bill presented in the Council of Ministers in 2006 was never passed. In the second period (2007–09), the simplification programme was initiated by the Parliament and went beyond simplification to ‘improve the quality of law’. The process became more difficult to track after these first two periods, as no fewer than 30 statutes aimed at simplifying existing legislative provisions between 2012 and 2018. Scholars conclude that both the executive and the Parliament suffer from a ‘simplification fever’.106 The executive’s fever went even higher with a programme to simplify secondary legislation: in 2017,107 a one-in-two-out rule for secondary legislation was introduced (ie, for each new enacted regulation, two shall be removed). In 2018,108 ministries were asked to elaborate simplification action plans in close cooperation with stakeholders and local authorities. The impact of these simplification programmes has not yet been assessed. In order to better control over-regulation, the government has also issued guidelines on the harmonisation of national law regarding EU legislation, considering the high impact of EU law on national norms. However, for some scholars, this impact should not be exaggerated: they observed a ‘lack of solid and systematic data on Europeanization of national laws’109 in all Member States. Between 2003 and 2017, transposition accounted for 12.45 per cent of the 25,720 acts issued (including 24,296 secondary regulations, 758 statute laws and 666 ordonnances).110 The highest peak was, quite logically, observed in 2010 (after the entry into force of the Lisbon Treaty), with 333 laws and regulations issued. In 2017, 48 EU directives were transposed into French law.111

106 Lasserre (n 31) 155. 107 Prime Minister’s Instruction of 26 July 2017 (maîtrise du flux des textes réglementaires et de leur impact). 108 Prime Minister’s Instruction of 12 January 2018 on simplification of procedure. 109 Sylvain Brouard, Olivier Costa and Eric Kerrouche, ‘Are French Laws Written in Brussels? The Limited ­Europeanization of Lawmaking in France and its Implications’ in Sylvain Brouard, Olivier Costa and Thomas König (eds) The Europeanization of Domestic Legislatures: The Empirical Implications of the Delors’ Myth in Nine Countries (Springer, 2012) 95. 110 https://www.legifrance.gouv.fr/Droit-francais/Statistiques-de-la-norme2. 111 RIA of the Bill on elimination of some gold-plating measures transposing EU directives – Projet de loi portant suppression de sur-transpositions de directives européennes en droit français, 2 October 2018.

196  Karine Gilberg Despite this diagnosis, one cannot ignore the undeniable impact of EU law on the French legal system. In 2011,112 the government issued a manual on the transposition of EU directives method:113 the transposition shall be ‘comprehensive’ and consistent with the objectives of the EU directive, but shall avoid gold-plating (ie, introducing obligations that go beyond the objectives of EU directives). On 3 October 2018, the government even introduced a draft bill to eliminate gold-plating of EU directives in French law:114 this bill targets 30 cases of gold-plating as being ‘unjustified’ and ‘detrimental’, as it hampers companies’ competitiveness.

11.6.  Training in Legisprudence: A Field to be Developed To guarantee a high impact for their Better Regulation policy, public authorities (the executive, the Parliament and oversight bodies) have developed legisprudence manuals or guidelines as well as training sessions for legislative drafters. Legisprudence manuals and guidelines have been extensively described above, so this section will focus on the existing ways and means of training key players of the law-making process,115 especially legislative drafters in ministries. Since the late 1980s, professionalising legislative drafters and key players in the lawmaking process has been a challenging goal as legisprudence rules, guidelines and tools have been progressively fine-tuned. To achieve this goal, the curricula of civil servant schools have included legislative drafting sessions as part of the initial training of civil servants: both future high-ranking officials, trained at the Ecole nationale d’administration, and future managers, trained at the Instituts régionaux d’administration, benefit from such programmes. These future civil servants benefit from broad-based training and can be appointed to any management position in ministries regardless of the issue they will be dealing with. These ‘generalists’ may be in charge of drafting legislation and regulations or of supervising the law-making process (high-ranking officials), but in most ministries, legislative drafters are specialised in fields of substantive law. For instance, in the Ministry of Justice, judges or prosecutors are appointed to legislative drafter positions (generally, they serve within the Ministry of Justice for a limited period of time). Although specialised in fields of substantive law, they did not benefit from any initial training in legislative drafting. Thus, on-the-job training is the rule for the vast majority of legislative drafters. Ministry’s departments also organise short internal training sessions; typically, a two-day training is held for newly appointed legislative drafters and their supervisors. For instance, in its training programme for 2018–20, the Ministry of Agriculture and Food included legislative drafting sessions as a priority. Indeed, in a dedicated instruction, the Ministry

112 See Prime Minister’s Instruction of 27 September 2004 on the transposition procedure of EU directives and framework decisions in national law (‘relative à la procédure de transposition en droit interne des directives et décisions-cadres négociées dans le cadre des institutions européennes’). 113 Included in the Guide de légistique, 4.1.2, 4.1.3. 114 See https://www.senat.fr/dossier-legislatif/pjl18-010.html. 115 For more detail on training in legisprudence, see K Gilberg and C Groulier (eds), Former à la légistique. Les nouveaux territoires de la pédagogie juridique (LexisNexis, 2018).

Legislation in France  197 underlines that it is necessary to ‘secure’ the elaboration of legal norms and to focus on legislative drafting techniques.

11.7. Conclusion Despite the unprecedented blooming of French legisprudence, public authorities, scholars and civil society actors still frequently criticise the quality of legislation (fuzzy, complex, ineffective in terms of changing the existing situation etc). Preventing over-regulation and providing guidance, training and assistance to legislative drafters or more broadly to law-making actors are considered to be the key steps to improve this situation. To demonstrate how cautious one should be when proposing new legislation, de Romilly116 mentions Demosthenes’ Orations against Timocrates in which Diodorus recalls the laws of the Locrians, which allow a citizen to propose a new law only with a noose around his neck; if the proposal is considered irrelevant, the citizen takes his own life. Let us hope that the next steps of legisprudence will be less severe than this.

Further Reading S Boyron, The Constitution of France: A Contextual Analysis (Bloomsbury Publishing, 2012) J Chevallier, ‘La rationalisation de la production juridique’ (‘Rationalisation of Lawmaking’) in Charles-Albert Morand (ed), L’État propulsif (Publisud, 1990) 10–48 K Gilberg, ‘La fabrique gouvernementale de la loi’ (‘The Governmental Phase of the Law-Making Process’) (2017) La Semaine juridique, Panorama des lois 2016 6–10 ——. ‘La légistique au concret: les processus de rationalisation de la loi’ (‘Legisprudence in Practice: Rationalisation of Law-Making’) (PhD thesis, Université Paris 2, Panthéon-Assas, 2007) V Lasserre, Le nouvel ordre juridique. Le droit de la gouvernance (The New Legal Order: The Law of Governance) (LexisNexis, 2015) E Steiner, French Law: A Comparative Approach (Oxford University Press, 2018) J-M Woehrling, ‘L’évolution du rôle du droit dans l’action administrative’ (1983) 26 Revue française d’administration publique 134



116 Jacqueline

de Romillly, La loi dans la pensée grecque (Les belles lettres, 2001) 204.

198

12 Legislation in Germany ULRICH KARPEN*

Context Alongside all similarities of parliamentary legislative systems in Europe, it is possible in Germany – as in all other countries – to single out some components of the legislative process that are noteworthy in themselves and in terms of the part they play in law-making. The first of these, the Bundesrat (the Federal Council of States), has such a diversity of functions and is so unusual that it might be allowed to count for both. It is not a ‘second chamber’, but for the adoption of federal laws as relevant as no other legislative body around. The second component is the ‘Federal Constitutional Court’, which due to its breathtaking constitutional mandate (both in terms of scope and depth) and its case law is at the centre of Germany’s democracy.

12.1.  The Constitutional State as a Framework and Guiding Principle of Legislation The Federal Republic of Germany is a democratic and social federal state, based on the Rechtsstaatsprinzip (rule of law). The Constitution is the ‘Basic Law’ (BL) of 23 May 1949.1 Rechtsstaat covers the basic rights, separation of powers (Articles 20(3) and 28(1)) and legal protection by independent courts. Federation and separation of powers are the controlling features of the organisation and procedures of the German democratic polity. Human dignity (Article 1(1) BL) and the following basic rights, which expand upon Article 1 – personal freedom (Article 2), equality (Article 3), freedom of speech (Article 5), p ­ roperty (Article 12) and others – are essential parts of the Constitution. The basic rights are particularly protected by Article 19(1): ‘Insofar … as a basic right may be restricted by or pursuant to a law, such law must apply generally.’ This reservation of a (statutory) law is the main cause

* The use of the masculine form (‘he’) throughout this text is merely to facilitate reading. All information applies to both genders. 1 23 May 1949, FedGaz 1949, 1. For the preliminary remark, see Sir W Dale, Legislative Drafting: A New Approach (London, Butterworths, 1977) 108; DP Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd edn (Durham, NC, Duke University Press, 2012) 53–58.

200  Ulrich Karpen for legislation of Parliament. According to Article 1(3): ‘The following basic rights shall bind the legislature, the executive, and the judiciary as directly binding law.’ Article 19(2) bans any law or governmental action that undermines ‘the essential content of [any] basic right’. Article 79(3) carries the principle of the BL’s supremacy even further. It bans any amendment to the Basic Law ‘affecting the division of the federation into Länder [States], their participation … in the [national] legislative process or the basic principles laid down in Arts 1 and 20’. These are the explicit positive norms of the Constitution. But the Federal Constitutional Court (FCC) and lawyers commonly agree that the Basic Law embraces various rights and duties. The Constitution was designed not only to create a system of government, but also to foster a secure and preferred way of life.2 In one of the first cases (Lüth),3 the Court held: ‘There is no doubt that the main purpose of the basic rights is to protect the individual against the encroachment of public government … but it is equally true that the Basic Law erects an objective order of values in the section of basic rights. This system of values which centers on the dignity of the freely developing person within society must be seen as fundamental to all areas of law.’ This value-oriented, supra-positive notion of the BL is certainly a product of recent German history. Constitutional interpretation created many important norms, like the principles of good government, proportionality, subsidiarity and others, which establish a hierarchical value order. These are mostly vested in the Rechtsstaatsprinzip, but far from being an end in itself, they add to the separation of powers and other notions of the rule of law. They also encompass the broader implicit principle of a constitutional state. Of course, this interpretation has an impact on the objectives, instruments, form and judicial control of legislation. German constitutional theory, as developed mainly by the FCC, established five normative theories of basic rights,4 which all have to be kept in mind if one analyses legislation: basic rights as liberal shields (man versus the state), as institutions (eg, the autonomy of universities based on freedom of research and teaching), as democratic rights (eg, ­freedom of speech and association), as social rights, and finally basic rights as value carriers, based on human dignity and nature of personhood (Articles 1–2 BL). First, basic rights first protect the individual against the encroachment of illegitimate public power. Second, some basic rights (social rights) entitle individuals to share public benefits such as (higher) education, housing or a right to a minimum standard of living. Third, there are participative rights like(democratic) voting rights, freedom of speech or freedom of assembly. All these aspects of basic rights require elaboration by statutory legislation. According to Article 20(1), Germany is a ‘social federal state’ and according to Article 28(1), a ‘social state governed by the rule of law’ as well. Although the constitutional principle ‘social’ appears only in an attributive form, which is different from other principles, the ‘social state’ spreads over the whole legal system and accounts for about one-third of German gross domestic income. However, there is no consistent protection of particular benefits or even systems of

2 Kommers and Miller (n 1) 38. 3 BVerfGE 7, 198 (1958) (BVerfGE: official collection of decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts). 4 Kommers (n 1) 62.

Legislation in Germany  201 precautionary and provisional aid. As in every state, the social system lives out of the cash register. Germany is a democratic state. The Federal Republic has a purely representative system of government. Article 20(2) explicitly addresses the sovereignty of the people, elections and other votes to express their will. The Constitution does not allow for referenda, except in two minor issues. This is different in the Länder Constitutions, where many forms of direct democracy measures have flourished over the last two decades. The republican principle not only decides that there must be no temporary unlimited ruler, but also stresses the democratic standard that the public interest is decided upon by the people and parliament. This results in a ‘legitimation by procedure’. Certainly, next to democracy, the rule of law – aspects are pivotal for the German Constitution. The first component is the separation of powers. The legislative, the executive and the judiciary are separated; they also balance out each other and they balance the authority of the state by establishing a system of checks and balances. The Constitution and law take precedence over all state authorities and actions (Article 20(3) BL). In addition to this ‘legality principle’, the executive is bound by ‘reservation of the law’: all activities of the state are based on, or limited by, law. This reservation protects the basic rights and the democratic standard. Finally, there is an independent judiciary (Article 97 BL), accompanied by ‘judicial basic rights’ (Articles 101–04 BL), eg, the right to be heard in procedures involving the deprivation of liberties. The authority conferred upon the FCC and the judiciary as a whole assures every person that the BL will prevail over all other legal rules or state actions that would subvert or offend it. By interpretation, the judiciary extracted from the rule of law some most important unwritten components, like legal security, the precision of law and the protection of legitimate expectations. All state actions must follow the principle of due process and must be effective, appropriate, transparent and participatory. In a deeprooted value perspective rule of law, the ‘law’ is much more than a structural element; it also means ‘right’ and ‘justice’ (Article 20(3) BL). Germany is a federal state. The Länder are states, with their own constitutions, which – according to the homogeneity standard of Article 28 (1) BL – must ‘conform to the ­principle of a republican, democratic, and social state, governed by the rule of law’. They have unicameral parliaments and governments, which usually follow the principle of parliamentary confidence. They have their own core tasks, namely culture, education, police and municipal law. They also have an important share in the legislation of the Federation and legislate in their areas of responsibility. The legislative powers of the Federation are enumerated, partly as exclusive (Article 73 BL) and partly as concurrent (Article 74 BL). In the latter areas, the Länder shall have the power to legislate as long as and to the extent that the Federation has not exercised its legislative power by enacting a law (Article 72 BL). As far as the execution of law is concerned, the Länder execute federal laws in their own rights, with a few exceptions for federal self-administration (foreign service, defence, tolls etc). Of course, the Länder execute matters in their own realm. In some matters, which are administered by the Federation, the Länder participate in the execution. In the legislative sphere, the Federation has made very extensive use of its ­possibilities, both in the ­exclusive and concurrent areas. In the executive sphere, the Länder are dominant. In practice, one may speak of an ‘executive or implantation federalism’. This adds to the balance of constitutional authorities and ensures the ‘vertical separation of powers’ between both levels.

202  Ulrich Karpen

12.2.  Legislation: Types of Law (Analysis) Legislation is an essential element of regulation and an instrument of governance in the traditions and institutions by which authority in a country is exercised for the common good. Legislation is also a tool of social guidance and control, as well as social engineering. Laws are general, abstract norms, as opposed to decisions in a particular case. The law is the primary and central instrument of government in a democratic rule of law state. The term ‘legislation’ does not only cover formal laws, as enacted by parliament (ie, statutes); ­legisprudence as the science of laws and legislation is also interested in norms which rank below statutory law in the hierarchy of regulations, like secondary legislation, by-laws and administrative regulation. In other words, the subject of legisprudence is law-making in a broader sense, ie, regulation. However, this chapter focuses on written law – as opposed to oral and customary law – and namely on primary and secondary legislation (statutory instruments). At the top of the pyramid of law is the Constitution. All state authorities are bound by the Constitution (Article 20(3)). The BL of 1949 has been amended some 60 times. These amendments are mostly minor adaptations to new developments or re-arrangements of responsibilities of the Federation and the Länder. The reunification of Germany in 1990 required the integration of five states and some amendments to the Constitution. The Basic Law may only be amended by a law expressly amending or supplementing its text. Any such law needs to be supported by two-thirds of the members of both federal legislative bodies: the Bundestag (the Federal Diet) and the Bundesrat (the Federal Council of States). Amendments to the BL affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 (human dignity) and 20 (principles of the structure of the Federal Republic) are inadmissible (Article 79(1)–(3) BL). Statutory laws are the backbone of democratic governance in Germany. With a little flexibility over the legislature period, the country has some 2,000 original statutes with 47,000 provisions.5 In addition, the Länder have their own statutes. If the Federation is in a ‘state of tension or defence’ (Article 80a BL), the procedure of legislation may be shortened. The budget of the Federation – as well as the Länder budgets – are established by statutory law. There are various types of subordinate legislation. Most common is the issuance of statutory instruments by the executive (Rechtsverordnungen). The Federal Government, a Federal Ministry or the Länder governments may be authorised by law to issue statutory instruments (delegated legislation). The content, purpose and scope of the authority conferred will be specified in the law. Each statutory instrument will contain a statement of its legal basis (Article 80 (1) BL). Currently, there are some 3,000 original statutory instruments with 40,000 provisions.6 Administrative guidelines are mainly addressed to executive organs, but by virtue of the equality principle (Article 3 BL) are sometimes relevant for citizens as well. They are instructions from the government to civil servants regarding the application of statutory laws or instruments (administrative circulars). As authorised by statutory law,

5 Federal Ministry of Justice, Manual for Drafting Legislation, 3rd edn (Cologne, Bundesanzeiger Verlag, 2008) 18. 6 ibid.

Legislation in Germany  203 municipalities, corporations (eg, universities and chambers of commerce) and other bodies enjoying autonomy may enact by-laws. Municipal self-government is an integral part of the democratic constitutional order (Article 28(2) BL). Municipalities and local communities as well as counties are equipped with own budgets. Up to 70 per cent of German law is directly applicable European law7 or is caused by it (Article 23 BL). One of the features of the BL is Germany’s commitment to international law (Article 24 BL). International treaties are applicable domestically by the consent of parliament (Article 59(2) BL). The comparative law approach is vital for drafting German law.

12.3.  Competences, Organisation and Procedure of Legislation (Procedures) Legislation is primarily a responsibility of parliament. The initiative for law-making rests – as in most parliamentary states – with the government. Up to 90 per cent of the bills originate in government or are under the direct influence of it. The main steps of legislation are: impulse, analysis of the social problem and possible instruments to cope with it (policy setting), definition of targets and instruments of regulation, alongside other measures. This is the ‘legislative cycle’: drafting, initiative in parliament, deliberation and adoption of the draft in parliament, implementation of the statute and enforcement, monitoring of implementation and starting an amendment procedure, if necessary. The legislative organs in Germany are the Bundestag and the Bundesrat. The Bundestag has 598 members (paragraph 1 of the Federal Electoral Law). The Electoral Law is a combination of first-past-the post and proportional representation. Each voter casts two votes. Half of the 598 members are elected directly from 299 constituencies and the other half from the parties’ Länder lists. The Bundesrat is unique in the parliamentary systems of the world. It is not a Second Chamber.8 According to Article 51 BL, it consists of members of the Länder governments, which appoint and recall them. Each Land will have at least three votes. According to the number of inhabitants, Länder participation may go up to six votes. The votes of a given Land may only be cast on a block basis. In practice, the Länder governments tend to nominate their prime ministers, ministers of finance or other ministers and representatives, depending on the agenda of the meeting. Currently, the Bundesrat has 69 members. The Bundesrat participates in the legislative process of the Federation, which is a parliamentary function. On the other hand, it exercises governmental responsibilities. It has to give its consent to some forms of delegated legislation (statutory instruments; Article 80(2) BL), as well as administrative guidelines (Articles 84(2), 84(2) and 85(2) BL). The Bundesrat may initiate statutory instruments in the Federal Government (Article 80(3) BL). The stimulus or impetus for drafting new legislation springs from government, possibly the coalition treaty, the media or the FCC, which declares a law fully – or partly – null and void, and calls for new legislation. After the government has decided on the policy to 7 U Karpen, I Breutz and A Nünke, Gesetzescheck: Die Gesetzgebung der Großen Koalition in der ersten Hälfte der Legislaturperiode des 16. Deutschen Bundestages (2005–2007) (Bielefeld, FHM-Verlag, 2007) 19. 8 BVerfGE 37, 363, 380 (1974).

204  Ulrich Karpen be taken, the goal-setting and the choice of instruments, as well as the details, the work of drafting a bill falls within the responsibility of the respective ministries and their staff, according to the ‘Joint Rules of Procedure of the Federal Ministries’ (GGO) and the Manual for Drafting Legislation.9 The ministry in charge communicates the bill, including an explanatory memorandum and regulatory impacts (§§ 43 and 44 GGO), to all other ministries, the Länder, the national associations of local authorities, the expert community and associations (§ 47 GGO). The bill is open to the media or can even be found on the internet. Drafting consultation, coordination, communication and cooperation (the four ‘Cs’) provide for maximum transparency. Bills may be introduced in the Bundestag by the Federal Government, by the Bundesrat or from the floor of the Bundestag (at least 5 per cent of the members (Article 76(1) BL) of the Bundestag). As has been mentioned, roughly 90 per cent of the bills originate in government. Government bills shall first be submitted to the Bundesrat, which may comment on them. Bundesrat bills shall be submitted to the Bundestag by the Government, which shall state its own views. The legislation in the Bundestag is prepared by ‘standing committees’ or – when necessary – by ‘select committees’. To prepare for the decision-making on complex and important issues, the Bundestag can form study commissions (enquêtes) or call for hearings of experts or representations of interest groups in the committees. The report of the committee(s) is sent to the plenary. Bills are adopted by the Bundestag in three readings (rule 78(1) of the Rules of Procedure (RoP) of the Bundestag) and are then submitted to the Bundesrat. The Bundesrat may demand that a committee for joint consideration of bills (composed of members of the Bundestag and the Bundesrat) be convened (Article 77(2) BL). When the consent of the Bundesrat is required for a bill to become law, the Bundestag and the Government may, likewise, demand that such a committee (‘mediation committee’) be convened. It is important to distinguish between bills which require the consent of the Bundesrat (these cases are explicitly mentioned in the BL) and bills which allow only for an objection of the Bundesrat. Insofar as consent is required, if no request has been made in the mediation committee or if the proceedings in the committee have been completed without a proposal to amend the bill, the Bundesrat shall vote on the bill. Insofar as consent is not required, after the mediation procedure, the Bundesrat may enter an objection to the bill. If the objection is adopted by the majority of the votes of the Bundesrat, it may be rejected by a decision of the majority of the members of the Bundestag. If the Bundesrat adopts the objection by a majority of at least two-thirds of votes, its rejection by the Bundestag shall require a two-thirds majority, including at least a majority of the members of the Bundestag. In short, the passage of a federal law is as such a bill adopted by the Bundestag. It shall become law if the Bundesrat consents to it, or fails to invoke the mediation committee, or fails to enter an objection or withdraws it, or if the objection is overridden by the Bundestag (Article 78 BL). The majority of laws are objection laws. Finally, after countersignature, laws are certified by the Federal President and promulgated in the Federal Law Gazette. Bills also need to meet the criteria for internet publication, as prescribed by the Statutory Instrument on Barrier-Free Information. This technology enables persons with disabilities to access the body of law.

9 The

Joined Rules as at 29 July 2020. Manual (n 5).

Legislation in Germany  205

12.4.  Policy-Making, Objectives and Instruments of Legislation (Methodology) The term ‘methodology’ describes the steps to be taken to solve a problem by developing a policy, defining the legal targets of a given bill and the instruments to reach them. Methodology differs from the more practical issues of technology to write a text. Usually, little attention is given to the first steps of legislation, namely to define the political goal of a new law and to instruct the designer to write a draft. This is the responsibility of the executive, the Federal Chancellor (Article 63(3) BL) and the cabinet (Article 65 BL). The Chancellor has the power to determine political guidelines (Article 65 BL). The ministers are the political heads of their respective ministries, whereas the bureaucrats at the lower level of the ministries are responsible for the operationalisation and clarification of the directive in the draft bill. Usually, the government starts with checklist-like considerations. Which political direction do we want to follow? What is the social problem and whose behaviour creates it? Which (social) benefits do we want to award? What are the proposed solutions? How can we implement and monitor the policy? According to the Constitution, the government is free to shape the public welfare according to political guidelines or urgent necessities. The choice is limited by basic rights and the rule of law. The FCC held10 that within this framework, the Constitution does not prescribe that the legislator has to always find the most expedient, most rational and fairest solution; the legislator has wide creative leeway. However, there are some constitutional norms (like the social state) and namely the interpretation of others (like the rule of law) which are constitutional goals or at least important red lines and values for legislative targets and instruments. The legislator must take them into account and obey legal standards and principles of efficiency and rationality as much as possible. But other points of view have to be considered, primarily the political situation and majorities: legislation is a democratic business. If they go alongside the aforementioned goals first, all the better. If the latter prevail, they are decisive; legislation is a political decision. The vast majority of bills are drafted in the lead ministry. The civil servants are experienced in the matters at stake. They are detailing the instructions of the government for the draft. Usually the main line of policy for the bill is explained in the arguments of the bill preceding the text. It can also be placed in the first paragraphs of the bill. An enunciation of the principle gives a firm and intelligible structure to the statute. It helps to clear the mind of the legislator, provides guidance to the executive, explains the legislation to the public and assists the courts (when in doubt) with the application of a given provision. The first paragraph might read: ‘The purpose of this act is to regulate …’ It could well be that during the preparation of legislation, it is discovered that the political goal cannot be achieved by the intended bill. This could happen, for example, due to contradictions with other regulations. In this case, the policy has to be adapted. As far as instruments are concerned, the drafter has to check, first, whether drafting (statutory) legislation is needed, as the policy decision proposes, or whether other i­nstruments are available, eg, lower-level laws and subsidies. The drafter will investigate whether the measures to be taken are to target the causes of a given problem or the symptoms, whether



10 BVerfGE

130, 263, 380 (2009).

206  Ulrich Karpen they need to be detail-oriented or comprehensive, preventive or reactive, and which measures of steering behaviour are preferable: prohibitions, commandments, authorisation, approval, direct intervention, consensual agreement, information, conviction, recommendation or warning – all in all, ‘carrots or sticks’? The statutory reservation always requires a statutory law when burdens are imposed on the addressees by a sovereign act. The priorities of the Constitution and the law have to be obeyed. Licensing and registration are measures of slighter impact. Another way of influencing social behaviour is to establish corporations and other bodies with the right of self-regulation under governmental oversight. A large portion of legislation has financial implications. Drafters need to have an understanding of how the budget and financial sector work. Financial measures of legislation are taxes, duties and contributions, para-fiscal levies and fees. Penalties and administrative means of coercion are last resorts.

12.5.  Structure, Language and Amendments (Techniques) The structure and the language are essential for making a good bill. The drafting style maintains, in general, a logic development of legal thoughts from principles to precision in detail with full clarity of expressions and wordings. The draft bill is the form of the law. The drafter must understand the problem, the facts and the different points of interest. He must familiarise himself with the relevant existent law next to the bill. Then he must organise the plan of the draft and write it. Most of the content of this chapter applies to the drafting of subordinate legislation to the same extent as it does to the drafting of primary legislation. It seems to be preferable to differentiate external and internal structure. The external structure as well as the wording is subject to the provisions of the Handbook for the Preparation of Statutory Laws/Instruments11 and of the important and already mentioned Manual for Drafting Legislation.12 The latter is focused on the conformity with legal requirements, namely of the Rules of Procedure of the Federal Government. A bill is divided into parts, sections, sub-sections, articles or paragraphs, sub-paragraphs (Absatz) and sentences. The German practice is to reserve the name ‘article’ for the units of the BL and laws amending parts of more than one special law. A typical piece of principal legislation starts with a front page on top of the text. In a concentrated manner (just one word, if possible), it indicates the problem, the solution provided in the bill, alternative solutions and why the bill gave preference to its choices, the expected expenditure, the compliance costs and – if the National Regulatory Control Council (NRCC) has been involved – its argument. The front page is mandatory. Some bills start with a more intensive legislative intent, when they are initiated in parliament, which gives the recitals for the chosen solution. Here the solutions of other countries are very often

11 Federal Ministry of Interior: Handbuch zur Vorbereitung von Rechts- und Verwaltungsvorschriften (Cologne, Bundesanzeiger Verlag, 2012). 12 Federal Ministry of Justice (n 5).

Legislation in Germany  207 comparatively assessed in order to address potential criticisms. The intent also may cover the order to control the functioning of the law and thus burdens the government with the obligation to check the implementation of the law. The bill itself, in general, consists of three parts. The first is the ‘Introduction’, covering the goals, scope of application and terminology. The second and main part regulates the organisation and procedure of the matter, financing, costs, fees and penalties. The third part covers ‘final provisions’, like implementation, enforcement, abrogation or amendment of former laws, transitional provisions, penalties and tables. As for citation, strict information and signposts to sources are needed to find the precise writing of the law as consulted. The text of the bill must be in good systematic order and avoid contradictions of principles or terminology. The logic of the provisions should be clear: general principles take precedence over particular regulations; details and/or exceptions follow regular rules. Structure, style and manner of expression have to be chosen in a way that best suits the purpose of the legislative piece. The language should orient itself towards the addressees of the bill. It must be correct and understandable to everyone as far as possible (§ 42(5) RoP Gov). Legal language and wording require transparency, clarity and precision. The law must be plain and accurate. Simplicity is desired. The drafter should avoid vagueness and ambiguity of words. The syntax must be in good order. Definitions are lighthouses in law texts. References shorten texts and show coherences and links, but may be impermeable thickets. References may be direct (eg, to a special paragraph) or indirect (eg, to ‘general accepted rules of technology’). There are numerous references to EU law and international law or to private law. Generally, bills must be submitted to the Unit of Legal Drafting of the Ministry of Justice to review the linguistic accuracy and comprehensiveness (§ 42(5) GGO). Special categories of law require attention. First of all, it is difficult to keep the law up to date. The keepers of the law books of Germany have a number of simple or more complex tools at hand. The first – and most frequently used – is the amendment of parts of a law, while the second is the codification, the most ambitious tool in our hectic legislative times (like the Social Code or the Ecological Code in Germany), the revision of a text, the re-writing or re-statement of provisions, the reprinting of an older text or the abrogation of an act. Special attention is given to the budget. It is the most complicated and important ‘financial register’ of the country. All fees, salaries, allowances and other expenditures payable or incurred under or in the administration of an act shall be payable out of the public money to be appropriated by parliament for that purpose. Taxation laws must be as precise as possible. Most laws13 – up to 70 per cent – are amendments. Principal and amending legislation must always be construed to form one coherent whole; this is of prime importance for the drafter. The drafter must acquire a comprehensive acquaintance with the matter. The language must be consistent. He must take into account the effects of the proposed amendment on the draft provisions of the principal law. Amending provisions must be related to circumstances as they exist when the provisions come into force. There are two experienced techniques of amendments: direct or textual and indirect or referential. Textual amendments consist in the specific and seriatim insertion, substitution or deletion of words, paragraphs, sections or sub-sections in or from the principal law, in the same way as a new spare part is inserted into an engine in place of an old one. Indirect amendment is a narrative statement or a reference

13 Karpen,

Breutz and Nünke (n 7) 159; Federal Ministry of Justice (n 5) 170.

208  Ulrich Karpen to the principal law. Direct amendment is preferred, provided that reprints and/or revisions are available. This type of amendment reduces the proliferation of laws, and they are easier to draft, but more difficult to read, more or less designed for specialists.

12.6.  Drafting ‘Good Laws’ (Evaluation) Of course, there is no reliable method to draft an’ ideal law’, which is a combination of values, compromise and accepted policy. But the aim of writing a ‘relatively good law’, an effective, durable law, can be reached. Whether a statute is a ‘good law’ in this sense requires an evaluation. Regulatory impact assessment (RIA) offers a set of instruments to measure the output of legislation. Less quantity, more quality: these are the criteria of establishing an effective legal order, which achieves the desired intentions and avoids potential pitfalls. Similar criteria apply to a single statute as a building block of the legal order. Quantification of regulation may be easy: one simply counts the number of regulations and the length and detail of a given statute. But it is more difficult to evaluate regulatory quality. The main criteria for ‘good law’ are ­clarity, transparency, durability and an open procedure in a formal sense. As material values, efficacy, effectiveness, efficiency (the ‘three Es’)14 are pre-eminent. Starting from a piece of law, be it a draft or an adopted law, evaluation takes place before enactment (ex ante), during the deliberations in the Bundestag and the Bundesrat (concurrent) and after the implementation (ex post). The legislator at all levels tries to achieve a rational product by RIA and finally by judicial review. All these criteria should be applied to a bill or a law after the following question has been answered: is a law required at all in order to solve a given problem? And is the bill aimed at solving the political problem in accordance with the Constitution and existing law? As far as the formal criteria are concerned, the bill must be adapted to the system of regulations in the material context of other laws, namely in terminology and reasoning, as well as certainly and clarity of references in the legal web. Material criteria are the ‘three Es’. Efficacy is the extent to which legislative action achieves its goal: a law has a high level of efficacy if, when implemented, it comes closest to the legislator’s intent. Effectiveness as the second criterion of rational legislation is the extent to which the observable attitudes and behaviours of the target group (individuals, enterprises or public officials) correspond to the normative model that the legislator wants to realise. And the law is efficient if it is suitable, required and acceptable and/or reasonable (Article 3(6) TEU; § 6 of the German Law on Budgetary Procedures). To work efficiently means to apply the maximum or the parsimony principles (cost-effectiveness): ‘Do more and better with less!’ This is the project of the ‘slim and smart legislation’ of the EU.15

14 U Karpen, ‘Efficacy, Effectiveness, Efficiency: From Juridical to Managerial Rationality’ in K Messerschmidt and AO Oliver-Lalana (eds), Rational Lawmaking under Review, Legisprudence According to the German Federal Constitutional Court (New York, Springer International Publishing, 2016) 295, 304. 15 EU ‘Regulatory Fitness’ COM (2012) 747; and ‘Smart Regulation in the EU’ COM (2010) 543.

Legislation in Germany  209 Ex ante (preceding) evaluation takes place in the lead ministry in coordination with all other ministries. Bills may also – before they reach the cabinet – be made available to the press and other bodies that are officially not involved, to expert communities or to other persons (§ 48 GGO). Almost all ministries are supported by standing advisory bodies, comprising academic experts, representations of society and lobby groups. Before a bill is submitted to the cabinet for adoption, it must be sent to the Ministry of Justice to be examined in accordance with systematic and legal scrutiny (§ 46(1) RoP Gov). In 2006, as amended in 2011, the National Regulatory Control Council (NRCC) was established by an Act of Parliament.16 It is bound only by the mandate conferred by the act and is independent in its work. It examines bills before they are presented to parliament by the government. In addition, the NRCC is available in an advisory capacity to the leading and co-advisory standing committees of the Bundestag. It examines the description of compliance costs of new regulations for citizens, the business sector and public administration in terms of comprehensibility and correct methodology (§ 1(3) of the Act for the NRCC). The compliance costs encompass the entire measurable time and costs required for complying with a federal statutory provision by citizens, commerce and public administration (§ 2(1)). The NRCC applies the Standard Cost Model (§ 2(3)). The examination by the NRCC will not cover the intended purposes and aims of the regulation (§ 1(4)). ‘Regulatory Watch Europe’17 is the banner under which Europe’s seven independent advisory boards (the EU, Sweden, Finland, Norway, the Czech Republic, the Netherlands and Germany) coordinate to assess and reduce regulatory burdens. In 2014, the Federal Government introduced the one-in-one-out regulation to decrease the body of law.18 In the Bundestag, there are, in addition to the NRCC, three institutions where RIA is located, concurrent with the deliberation of the draft: the Scientific Service of Staff of Parliament, the Office of Technology19 and the Council of Sustainable Development.20 In the Bundesrat, there is no equivalent to these centres of knowledge. But the 16 Länder indeed have powerful support from the ministries in their respective capitals. In assessing bills, the independent Federal Audit Office is usually involved. The President of the Audit Office holds an independent Office of Federal Performance Commissioner, who looks at the efficiency of drafts. A full retrospective evaluation (ex post) on a regular basis is desirable. Important elements have been introduced. The government has to deliver annual reports to the Bundestag. There are many hints in the reports of the Federal Audit Office. The increased use of ‘sunset legislation’ helps to keep legislation under control. However, the empirical validation of compliance costs is impossible without the support of the Federal Statistic

16 Act of Establishment of a National Regulatory Control Council of 14 August 2006, as amended by art 1 of the Act of 16 March 2011, Federal Law Gazette I, 420. 17 Joint Statements of ACTAL (the Netherlands), Nationaler Normenkontrollrat (Germany), Regelradet (Sweden), the Regulatory Impact Assessment Board (Czechia), the Regulatory Policy Committee (UK), in: U Karpen, ‘Regulatory Impact Assessment (RIA) by Independent Bodies’ (2018) 30(2) European Public Law Review 355, 363. 18 Zweites Bürokratieentlastungsgesetz of 5 July 2017. 19 Office of Technology,Karlsruher Institut fürTechnologieabschätzung in Theorie und Praxis (TAB), Report of the Science Committee of the Bundestag,BTDrs 17/3010 v.22.September 2010. 20 Y Zwick, ‘Rat für Nachhaltige Entwicklung:DeutscherNachhaltigkeits- Kodex’ in M D’heur (ed), CSR und value chain management (Berlin und Heidelberg, Springer, 2014) 241–256.

210  Ulrich Karpen Office. Ex post RIA is undertaken two years after the coming into effect of a given law, and a more thorough evaluation takes place three to five years after enactment in view of the question whether the goals of the law have been met. An ex post RIA may come to the conclusion that a given law must be abrogated, amended or re-published due to being unclear. The final evaluation of a law is undertaken by the Federal Constitutional Court. Many laws, as enacted, reach the FCC via two types of court proceedings: ‘in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or laws with the Basic Law’ (Article 93(2) BL – review in abstracto); or ‘if a court concludes that a law on whose validity its decision depends on is unconstitutional, the proceedings shall be slayed and a decision shall be obtained … from the FCC where this BL is held to be violated’ (Article 100 (1) BL – review in concreto). The latter procedure – the judging of the constitutionality of sovereign acts (ie, laws) – is very popular and deeply rooted in the rule-of-law understanding of the people. The ‘constitutional complaint’ is accessible to anybody and is by far the most common proceeding in the FCC. In 2016, some 6,000 complaints have reached the Court. Of course, in the light of some 70 years of jurisprudence of the Court, most complaints are inadmissible due to their neglect of preconditions of the trial or are unfounded on material grounds. The Court held many laws to be (partly) unconstitutional and void or provided an interpretation that maintained the law’s constitutionality. In some cases, the Court is a kind of ‘legislator of reserve’, eg, when the legislator failed to adopt a law concerning labour disputes. Here the FCC indeed produced case law. The importance of FCC litigation lies in the clarification for the interpretation and application of the BL, namely in the understanding of basic laws by courts, the government and in teaching. Some say that, instead of teaching the Constitution, law teachers would teach the FCC’s opinion of the Constitution. One is reminded of the striking saying of US Supreme Court Justice Charles Evans Hughes: ‘We are under a constitution, but the constitution is what the judges say it is!’21 The German FCC is the ‘watchdog’ of the BL. Over time, it has developed an impressive and astonishing set of criteria for assessing regulations, namely laws. Besides, it does not apply for norms of procedure of legislation, but also material requisites for ‘good legislation’. This applies, for example, to details of daily life, which the court extracted from ‘human dignity’ (Article 1 BL). In a broad sense, the current law of (higher) education or some tax laws are ‘made by the FCC’. The FCC is, as Christian Starck wrote,22 ‘the crowning completion of the constitutional state’. In fact, the FCC is at the centre of Germany’s democracy. It has a breathtaking mandate both in terms of its scope and depth. Donald P Kommers, a US-American observer, writes: ‘Modern Germany is the Karlsruhe Republic’ (Karlsruhe being the seat of the FCC).23

21 Speech before the Chamber of Commerce, Elvira, NY (3 May 1907), Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–08 (1908), 139. 22 Das Bundesverfassungsgericht im politischen Prozess, Recht und Staat in Geschichte und Gegenwart, 466/467 (1976), 17. 23 Kommers and Miller (n 1) 41.

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Further Reading Bundesministerium der Justiz (ed), Handbuch der Rechtsförmlichkeit, 3., neu bearbeitete Aufl. (Cologne, Bundesanzeiger Verlag, 2008); in English: Federal Ministry of Justice (ed), Manual for Drafting Legislation, 3rd edn (Cologne, Bundesanzeiger Verlag, 2008) U Karpen, Gesetzgebung – neu evaluiert (Legistics – Freshly Evaluated), 2nd edn (Baden-Baden, Nomos, 2008) ——. (ed), Legislation in European Countries (Baden-Baden, Nomos, 1996) W Kluth and G Krings (eds), Gesetzgebung (Heidelberg, CF Müller, 2014) DP Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd edn (Durham, NC, Duke University Press, 2012)

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13 Legislation in Greece MARIA MOUSMOUTI

Context Greece is a heavily regulated society with a culture to regulate. The majority of bills are initiated by the government, but their ‘authorship’ is difficult to trace as, until recently, no centralised institution had the unique competence to draft bills. Laws are adopted by the Parliament, following very detailed procedures, and are enacted by the President of the Republic. Implementation and evaluation are the responsibility of the executive, but are particularly weak spots in the life cycle of legislation. Concerns over the quality of legislation emerged in the late 1990s, triggered by the demands of EU membership and gradually integrated the law-making process in the form of binding requirements for impact assessment, consultation and simplification. However, to this day, their practical impact on actual legislative quality and prevailing law-making culture remains questionable. A recent reform comes with great ambitions in terms of making a difference in legislative practice by introducing a centralised service in charge of legislative management, specific law-making procedures and concrete guidelines for designing and drafting effective legislation.

13.1.  Hierarchy of the Legal Order and Types of Legislation and Regulation Greece is a parliamentary republic founded on the principle of popular sovereignty. It has a parliamentary government and its president is elected by the Parliament. The government (the Prime Minister and the cabinet) is accountable to the democratically elected Parliament. The system of governance is based on the principle of the separation of powers: the legislative power is exercised by the Parliament and the President of the Republic, the executive power by the President of the Republic and the government, and the judicial power by the law courts. The Parliament consists of 300 members and is elected by a direct, secret and universal ballot for a four-year term. Its legislative function is regulated in Chapter V of the Hellenic Constitution and the Standing Orders of the Parliament. The Greek legal system belongs to the civil law legal family. The supreme law of the land is the Constitution, which was enacted in June 1975 after the fall of the dictatorship of 1967, and was amended in 1986, 2001 and 2008. A process of constitutional revision is currently ongoing. Primary laws or statutes (νόμοι) are adopted by the Parliament, promulgated by

214  Maria Mousmouti the President of the Republic and published in section A of the National Gazette. The term ‘legislation’ designates general and impersonal rules of general application adopted by the Parliament according to the prescribed procedures. Delegation of legislative power is possible and is in principle addressed to the President of the Republic who issues the Presidential Decrees (Προεδρικά Διατάγματα) necessary for the execution of statutes (Article 43, para 1 of the Constitution). For this to happen, delegating provisions must be present in legislation, must state the subject, the aim and the limits of the legal provisions for which delegation is granted and be specific and defined. General regulatory decrees, can be issued on the basis of special delegation granted by statute and within its limits, upon proposal of the competent Minister (Article 43, para 2 of the Constitution). The legality of Presidential Decrees introducing general rules is examined in draft form by the Supreme Administrative Court, the Council of State (Article 95, para 1 of the Constitution) in terms of legality and constitutionality. The Parliament can also delegate legislative power to other administrative organs, for example, ministers, who issue ministerial decisions (Υπουργικές Αποφάσεις), but only to regulate specialised, technical, detailed or local matters (Article 43, para 2 of the Constitution). Decrees and decisions are published in section B of the National Gazette. Delegation of legislative power is very common. Soft law instruments, especially circulars, are extensively used to support the application of legislation. Explanatory circulars are issued by competent services to explain the provisions of legislative or regulatory acts and to provide guidance on how to implement them. An exceptional type of legislation is Acts of Legislative Content (Πράξεις Νομοθετικού Περιεχομένου). These are issued by the President of the Republic in extraordinary circumstances of urgent and unforeseeable need and following the proposal of the Cabinet. They need to be ratified by Parliament within 40 days from their issuance or from the convocation of a parliamentary session, otherwise they cease to be in force (Article 44 para 1 of the Constitution). Acts of Legislative Content were used extensively to introduce legislation during the initial years of the Greek financial crisis as a way to postpone uncomfortable debates and respond to time pressures. This practice has been severely criticised. Generally recognised rules of international law and ratified international conventions are an integral part of Greek law and prevail over any contrary law provision (Article 28 of the Constitution). In terms of the legal hierarchy, international conventions are placed below the Constitution and above statutes. Custom is still recognised as a source of law, but in practice is of minimal importance. Judicial decisions do not constitute a binding precedent on subsequent similar cases, but exert influence through the need for the uniform application of the law. European directives are transposed into the Greek legal order through laws, presidential decrees and ministerial decisions. Codes are a special form of legislation with the same validity as primary legislation. Greece relies heavily on codified legislation, the most important codifications being the Civil Code, the Penal Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Code of Private Maritime Law and the Military Penal Code, among several others. Codification is provided for in the Constitution (Article 76, paras 6–7) and includes both ‘formal’ and ‘administrative’ codification. Laws, presidential decrees and decisions are published in the National Gazette. They are available online and in hardcopy in their original form, as adopted and without any subsequent amendments. Unofficial consolidated versions of legislation in force are provided, for a fee, by databases operated by private companies or professional organisations like Bar Associations.

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13.2.  Preparation and Adoption of Legislation The Greek Constitution assigns the right to introduce legislation to the government and the Parliament (Article 73, para 1 of the Constitution). The government can introduce bills and the Parliament can introduce law proposals. Restrictions apply with regard to specific bills, such as those granting pensions or introducing taxes. Pensions require special bills, and the insertion of provisions pertaining to pensions into bills regulating other matters is not permitted under penalty of nullity (Article 73, para 2 of the Constitution). Further, these can be introduced only by the Minister of Finance (or the competent minister and the Minister of Finance in case of pensions burdening the budget of local government agencies or other public law legal persons), while bills introducing local or special taxes or charges must be countersigned by the Minister of Coordination and the Minister of Finance (Article 73, para 5 of the Constitution). The Constitution requires the regulation of specific matters by statute (formal law) on several occasions. The constitutional revision of 2019 added the possibility for popular legislative initiatives (Article 73, para 6 of the Constitution). Law proposals signed by 500,000 citizens can be tabled before Parliament. There cannot be more than two of these per parliamentary sitting and they cannot relate to public finances, external affairs or national defence issues.

13.2.1.  The Preparation of Legislation The majority of bills are generated within the government. The procedure for initiating and drafting legislation was, until recently, unregulated and subject to few binding rules. Further, no centralised institution had a clear competence for drafting legislation: drafting was ‘diffuse’ and the actual ‘authors’ of a law were unknown and difficult to trace. In practice, bills were generated either internally within the administration or through ad hoc law drafting committees set up by the initiating minister, high-level committees for reforms of strategic importance (the social security system and the education system, to give but two recent examples), while on rare occasions drafts originate from external stakeholders, social partners or even contractors implementing specific projects. Law 4622/2019 on the Executive State changes this by introducing three complementary reforms: first, by creating a new centralised service in charge of the pre-legislative process (the General Secretariat for Legal and Parliamentary Issues within the Presidency of the Government; see section 13.2.2 below); second, by introducing a specific procedure for the preparation of legislation (see below); and, third, by systematising and concretising the requirements and drafting rules that need to be respected in law-making (see section 13.4). The above came into force on 1 January 2020 and henceforth all new bills will have to be compliant with them. One of the most important innovations of the Law on the Executive State is the fact that it introduced a specific (intragovernmental) procedure for the preparation of legislation (Article 63 of Law 4622/2019). The procedure includes four main phases: (a) the initiation phase; (b) the drafting phase; (c) the quality control phase; and (d) the tabling before Parliament. The law-making procedure is initiated by any line minister who submits, in the context of annual regulatory programming, to the General Secretariat of Legal and Parliamentary Issues a draft bill or instructions for a bill. Following their assessment, a Drafting Committee is formed. During the second phase, the bill is drafted based on the

216  Maria Mousmouti instructions provided, or the draft bill and impact assessment submitted by the minister are assessed in terms of compliance with government policies and targets, constitutionality, legality and adherence to drafting rules. Upon completion, the bill is uploaded for consultation on the governmental consultation portal. Within a week of the completion of the consultation, the Drafting Committee submits the final bill to the General Secretary for Legal and Parliamentary Affairs, who forwards the bill to the Committee for the Evaluation of the Quality of the Drafting Process for quality control. If all standards (substantive and procedural) are respected, the Committee gives its positive opinion and the bill is submitted to Parliament. Alternatively, the Committee returns the bill with comments that need to be addressed within three days. This procedure comes with high ambitions of rationalising and keeping the legislative production under control. Further, the Law on the Executive State systematised the ‘Better Regulation’ obligations that apply to bills (Article 58 of Law 4622/2019). These include the obligation to respect drafting rules (Articles 59–60 of Law 4622/2019), to follow the preparation procedure mentioned above (Article 63 of Law 4622/2019), to consult (Article 61 of Law 4722/2019), to conduct impact assessments (Article 62 of Law 4622/2019) and to evaluate the results of legislation (Article 56 of Law 4622/2019). These substantive requirements are not entirely new. However, the Law rationalises pre-existing uncoordinated obligations under a common rationale. In essence, one of its major innovations is the fact that it unifies the distinct preparatory reports that accompanied bills (explanatory reports, reports on costs, impact assessment reports and consultation reports) into one ‘super’ impact assessment, which addresses most aspects of necessity and impacts of legislation. An impact assessment and a consultation report for every bill were initially an obligation introduced by the Standing Orders of the Parliament (Article 85, para 3 of the Standing Orders). Since 2012, it has been a legislative requirement. Law 4622/2019 makes the impact assessment the main document accompanying draft legislation that includes eight distinct sub-reports: (1) the explanatory report that identifies the problem that the bill addresses, and concrete, time-bound and measurable objectives; (2) the report on financial impact on the budget; (3) a report on bills that generate expenses; (d) a report on the general impact of the bill that details costs, benefits and risks; (5) a report on consultation; (6) a (new) report on legality that justifies the constitutionality of provisions and their compliance with EU and international law; (7) a table of amended or repealed provisions; and (8) an implementation report that determines the bodies and the timetable for implementation and the issuance of regulations. Law 4622/2019 (Article 63, para 9) explicitly only exempts urgent bills from the law drafting procedure of paras 1–8 of Article 63. According to the Standing Orders, bills designated as urgent are tabled only with a short evaluation report (Article 85, para 3 of the Standing Orders). The obligation for an explanatory report and a report on costs originates directly from the Constitution. An explanatory report is mandatory for all bills or law proposals (Article 74, para 1 of the Constitution; Article 85 para 3 of the Standing Orders; Article 62, para 2 of Law 4622/2019). This report states the problems addressed, identifies clear, timebound and measurable objectives and justifies the necessity of legislation (Article 62, para 2a of Law 4622/2019). In relation to amendments, the explanatory report performs a very important role from the perspective of transparency and accessibility: it re-states the full text of the provision to be amended (rather than just the words or phrases that are

Legislation in Greece  217 amended), otherwise amendments cannot be introduced for debate (Article 74, para 4 of the Constitution). A second constitutional requirement is that bills or law proposals that incur additional expenses for the state budget have to be accompanied by a report of the General Accounting Office that specifies the amount of the expenditure involved (Article 75 of the Constitution). Bills resulting in expenditure or reduction of revenues are introduced for debate only if they are accompanied by a special report specifying how these costs will be covered (Article 75, para 3 of the Constitution). When it comes to law proposals, these are forwarded, prior to debate, to the General Accounting Office, which has to report within 15 days, but if the time limit elapses, they are introduced without the report (Article 75, para 1 of the Constitution). The same requirement applies for amendments requested by ministers, in which case the General Accounting Office has to respond within three days (Article 75, para 2 of the Constitution). An additional requirement, included only in the Standing Orders (and not addressed in the new law), concerns bills dealing with labour relations, social security, taxation the general socio-economic policy and issues of regional development, investments, exports, consumer protection and competition, for which a reasoned opinion from the Economic and Social Committee is required (Article 85, para 5 of the Standing Orders).

13.2.2.  Actors Active in the Process of Preparation of Legislation For many years, a number of actors were involved in the process of preparation, drafting and quality control of legislation, albeit not always with a clear role. At the ‘grassroots’ level, the Offices of Legislative Initiative in line ministries was established in 2012 (Article 14 of Law 4048/2012) to contribute to legislative and regulatory quality through know-how on better regulation, participation in drafting committees, elaborating impact assessments, conducting consultation and drafting consultation reports, identifying provisions requiring simplification, reform, codification or updating, and evaluating the results of legislation. However, these Offices never took off and their role and impact in the actual design of legislation has been minimal. Until Law 4622/2019, the General Secretariat of the Government, a public entity supporting the Prime Minister and the government, had a de facto coordinating role. Its Better Regulation Office, the Central Law-Drafting Committee and the Codification and Law Reform Committee had more specific mandates associated with legislating. The Central Law-Drafting Committee examined bills, amendments, additions and regulatory acts from the perspective of drafting quality, constitutionality, compatibility with European legislation and international law, content and conciseness. The Better Regulation Office exercised quality control with regard to Better Regulation concerns, supported and coordinated the Offices of Legislative Initiative in line ministries, elaborated impact assessments for provisions drafted upon the proposal of the Council of Ministers or the Prime Minister, controlled the quality of impact assessments, offered guidance to improve their quality, studied impact assessments of the EU or international conventions in order to formulate national positions, and organised and coordinated simplification measures. It reported to the Prime Minister with an Annual Report on Better Regulation and an annual plan with measurable targets on the reduction of administrative burdens, simplification and the repeal of excess provisions.

218  Maria Mousmouti The Codification and Law Reform Committee, which superseded the Central Codification Committee with a broader mandate, determined criteria and areas of law reform, repealed legislation, set drafting rules for codes, proposed tools for ICT support of codification, coordinated and evaluated codification work, and submitted a report on the state of existing legislation including reform proposals. However, and despite their importance, these institutions proved to be weak, uncertain with regard to their role, insufficiently proactive with regard to legislation, invisible outside the government and, in practice, were often bypassed due to time pressure. The Central Law Drafting Committee (KENE), the main body with a formal role to control the drafting quality of legislation, restrained itself to comments of a legislative (technical) and linguistic nature and shied away from any substantive scrutiny of legislation. Since 2012, when this was formally legislated, none of the reports mentioned in Law 4048/2012 has been publicised, while the Law Reform Committee had not produced any significant output in relation to broader law reform. The role of these bodies on improving of the quality of legislation has been far from significant. Law 4622/2019 introduced new bodies charged with specific duties in relation to the coordination and follow-up of the law-making process and quality control. The Presidency of the Government is an autonomous, executive public entity under the Prime Minister (Article 21 of Law 4622/2019) with the mission to support the Prime Minister in ensuring coherence, effectiveness, coordination and monitoring the work of the government, including observing the application of the principles and tools of Better Regulation (Article 22 of Law 4622/2019). The presidency is structured into three General Secretariats, one of which is devoted to legal and parliamentary issues (Article 21, para 2 of Law 4622/2019). The General Secretariat for Legal and Parliamentary Issues is the ‘manager’ or ‘gatekeeper’ of the (intragovernmental) pre-legislative process and the ‘liaison’ with the Parliament during the legislative process. As a gatekeeper, it works to ensure the coherence and coordination of the legislative process, the application of Better Regulation principles and tools, and supports the Cabinet and collective governmental bodies (Article 25 of Law 4622/2019). Its competencies include the final drafting of all bills before they are tabled, their publication following adoption, the coordination of codifications and law reform initiatives, the control of compliance with the principles and tools of better regulation. In specific, it receives and signs off bills, amendments, improvements, additions and corrections to tabled bills, receives presidential decrees and regulations before they are sent to the Council of State, and looks after the implementation of the principles and tools of Better Regulation throughout the public sector. It includes a Directorate for Law Drafting Procedures, which is competent for the final processing of bills and regulations, a Better Regulation Office, which is tasked with supporting state services through guidance and training, and the Office for Legal and Parliamentary Issues, which offers legal support during the drafting process. The work of the General Secretariat is complemented by a quality oversight body: the Committee for Assessment of the Quality of the Law-Making Process (Article 64 of Law 4622/2019) is an 11-member independent, scientific body with consultative powers. It gives opinions on the quality of bills, amendments, decrees, ministerial decisions and impact assessments. It scrutinises constitutionality, compliance with European and international law, completeness of draft regulations (especially with regard to amended or repealed provisions), and potential overlaps and conflicts with existing law, and assesses the quantitative and qualitative aspects of impact assessments. In other words, its mandate is to provide

Legislation in Greece  219 a broad scrutiny of bills, regulations and impact assessments. The role of ‘quality controllers’ is of primary importance for leading any effort of improving legislative quality. It is therefore important to ensure that this Committee, through its membership and working methods, will work to change the prevailing law-making culture and provide these efforts with the required visibility. Within each line ministry, specialised Coordination Services have a ‘liaison’ role in the pre-legislative process (Article 38 of Law 4622/2019). Their mandate is to coordinate all ministry services for the composition and implementation of the annual work plan, the achievement of set targets and better regulation, among others. Each Coordination Service includes an Office for Legal and Parliamentary Issues, which is the point of contact for Better Regulation and evaluation issues, responses to parliamentary control, and relations with the Parliament and consultations. Drafting Committees are the primary bodies in charge of drafting bills. A Drafting Committee is explicitly set up by the Presidency of the Government for each bill that is in the process of preparation. It is composed of officials from the initiating and line ministries, officials from the Presidency of the Government, ministerial advisors, experts, academics and state lawyers with expertise on the subject of the bill (Article 63, para 3 of Law 4622/2019). Officials or experts can be invited to participate in hearings or give opinions. The mandate of the Committee is to draft the bill based on the principles of Better Regulation and the instructions of the initiating minister or (in the case of draft bills submitted by the initiating ministry) to evaluate the bill and preliminary impact assessment in terms of compliance with government policy and targets, constitutionality, legality and respect for drafting rules. Conceptually, this new structure moves away from the ‘diffuse’ responsibility that prevailed in law-making for decades. Specific bodies are competent to do the different types of work required for a consistent approach to law-making (policy instructions, drafting expertise and quality control), while a powerful ‘gatekeeper’ is in place to run the process. The role of the General Secretariat as the motivating force behind this super-structure is crucial. If it manages to generate, process and circulate knowledge, expertise and best practice around legislation and drafting, and create hubs of expertise and a network of committed legislative drafting experts within line ministries and the central government, it stands a good chance of leaving a lasting mark and making a qualitative difference in Greek law-making practice.

13.2.3.  The Adoption of Legislation The power to enact legislation is historically the oldest and most significant capacity of the Parliament. The legislative process is regulated in detail both in the Constitution and in the Standing Orders of the Parliament. Legislation is adopted according to regular (Articles 89–107 of the Standing Orders) or concise procedures where limited or no debate takes place for bills of an urgent nature (Articles 108–10 of the Standing Orders). Special procedures (Articles 111–23 of the Standing Orders) apply to specific matters like the revision of the Constitution, changes in the Standing Orders, adoption of the budget, financial statements and the general balance sheet of the state and the Parliament, the approval of economic and social growth programmes, proclamation of a referendum and a declaration of a state of emergency.

220  Maria Mousmouti The Parliament conducts its legislative business in plenum (Article 70, para 1 of the Constitution) or parliamentary committees (Article 72, para 2 of the Constitution; Article 70, para 2 of the Standing Orders). The specific subject matter is designated as the exclusive competence of the plenum, for example, bills on relations between the state and the church, religious freedom, changes in frontiers, recognition of the competences of international organisations, the proclamation of a state of siege, the electoral system, the prosecution of members of government and the interpreting statutes, among others. Other matters can be voted on by competent parliamentary committees, in which case the plenum meets to have a debate and vote in one session (Article 72, para 4 of the Constitution). In the regular legislative procedure, after being tabled, bills and law proposals are referred to the appropriate parliamentary standing or special committee (Article 89 of the Standing Orders). They are examined in two stages that are at least seven days apart. The first reading includes a debate in principle and on the articles, and the second reading includes a debate and vote article by article (Article 90 of the Standing Orders). The total number of sittings is determined by the Committee Chairperson and does not exceed four or five, apart from in very exceptional cases. During elaboration and until the second reading, each special permanent committee can express its opinion on specific issues that fall within its competence. Bills and law proposals can be (and are in practice) sent to the Scientific Service of the Hellenic Parliament for scrutiny. This specialised service was established in 1987 to assist Parliament in its legislative work, and its mandate is to review bills and law proposals from a legal-technical perspective (Article 92 of the Standing Orders), examining constitutionality, compatibility with international conventions and EU law, among other things. In practice, all laws tabled before Parliament are sent to the Scientific Service. Its report is attached to the bill or law proposal and is uploaded to the ‘Parliamentary Transparency’ webpage1 and distributed to MPs prior to debate. Non-submission of the report or the expiry of the deadline does not obstruct the entering of bills and law proposals in the order of the day or debate. Upon the submission of the report of the competent committee (or lapse of the deadline for it), bills are introduced for debate after three days, unless they are designated as urgent (Article 93 of the Standing Orders). Bills and law proposals are debated and voted on only once in principle, article by article and as a whole (Article 76, para 1 of the Constitution; Article 94 of the Standing Orders) on the basis of the text produced by the parliamentary committee that examined them. Voted bills or law proposals sent back to Parliament by the President of the Republic (Article 42 para 1 of the Constitution) are debated and voted on in plenum twice and in two distinct sittings, at least two days apart (Article 76 of the Constitution). Unless a qualified majority is required, the bill or proposal is passed in Parliament if it receives an absolute majority of the members present, which cannot be less than one-quarter of the total number of MPs (Article 67 of the Constitution). Three types of concise procedures are provided for: voting without or with limited debate; voting on very urgent laws; and urgent laws. Parliament can vote on bills or law proposals without a debate following a unanimous recommendation by the Conference of Parliamentary Chairmen or for bills and law proposals that have been approved unanimously

1 https://diafaneia.hellenicparliament.gr.

Legislation in Greece  221 or by a majority of four-fifths of the members of the competent committee. This takes place at the beginning of a sitting and before the commencement of the debate on the order of the day. If objections are raised, Parliament may decide on voting with limited discussion either in the same or in another sitting (Article 108 of the Standing Orders). Bills or law proposals designated by the government as very urgent are introduced for voting after a limited debate in one sitting (Article 76, para 4 of the Constitution). They are referred to the competent committee immediately with a deadline and if the committee accepts the designation of urgency, it examines them in a single sitting. They take precedence in the order of the day and debate and voting (in principle, article by article and as a whole) and are concluded in a single sitting, which can last up to 10 hours (Article 109 of the Standing Orders). Bills or law proposals of an urgent nature can be debated in a specific number of sittings (Article 76, para 5 of the Constitution). The government asks Parliament to determine by resolution the total number of sittings for urgent bills, which cannot be more than three. The debate of urgent bills and law proposals closes at the twelfth hour of the evening of the last sitting and at the latest six after it began (Article 110 of the Standing Orders). A specific type of legislative procedure concerns the adoption of judicial or administrative codes. These are voted for in plenum by a special statute that ratifies the code as a whole (Article 76, para 6 of the Constitution). The debate is held once, in principle, and is followed by a vote on the code as a whole (Article 111, para 3 of the Standing Orders).

13.3.  The Law-Making Principles and Framework for the Management of Legislation Greece is a heavily regulated society with a pro-regulatory culture. The law has important symbolic power and is the main means of introducing reform. Legislating is a fl ­ ourishing business and polynomy is a prevalent feature of the Greek legal order. In the period 1975–2005, 3,430 laws and 151,581 regulatory acts were published in the Official Gazette. From 2001 to 2016, 749 substantive laws were adopted (the number almost doubles to 1,478 if the ratification of international conventions is also counted) – on average, 50 per year. The big number of primary laws is followed by a large number of secondary regulations. The broader picture of the Greek legal system is one of excessive legalism, fragmentation, complexity and too much attention to detail.2 Concerns regarding legislative and regulatory quality emerged in Greece in the late 1990s mainly triggered by the demands of EU membership.3 The nascent regulatory agenda consisted of sporadic, short-sighted and uncoordinated reforms that lacked any overall vision. Quality is a notion frequently used in association with public sector performance 2 Georges Langrod, ‘Report on the Administrative Reform in Greece (1964)’ in Antony Makrydimitris and Nikos Michalopoulos (eds), Expert Reports on Public Administration 1950–1998 (Athens, Papazisis Publishers, 2000) 157, 168–70; Report of the M Dekleris Commission, ‘Greek Administration 2000. First Programme of Administrative Modernisation 1992–1995’ in Makrydimitris and Michalopoulos (n 2) 659, 679. 3 OECD, Regulatory Reform in Greece (Paris, OECD Publishing, 2001) 15; Commission on the Analysis of Long-term Economic Policy, ‘Quality in Public Administration: Proposals of Changes 1998’ in Makrydimitris and Michalopoulos (n 2) 705, 730–31.

222  Maria Mousmouti and the quality of public services, but not legislation. A circular from the Prime Minister in 20064 entitled ‘Legislative Policy and Evaluation of the Quality and Effectiveness of Legislative and Regulatory Provisions’ expressed the political goals of reducing polynomy, improving legislative and regulatory quality, and simplifying legislation, and introduced for the first time tools of regulatory quality. Law 4048/2012 on Regulatory Governance: Principles, Procedures and Means of Better Regulation gave binding value to the principles and means for Better Regulation. Despite the progress, an overall vision and criteria of legislative quality was still lacking: the legalistic culture prevails, the ‘political’ power of legislation overrides any concern of legistic quality and the assumption that the mere observance of legislated principles and procedures would address the pathologies of the legal system has proved a utopia. Law 4622/2019 on the Executive State came with an ambitious vision to upgrade law-making practice through a centralised (and specialised) body in control of the pre-legislative process, new procedures and specific quality requirements. At the level of processes and principles, Law 4622/2019 distinguishes between Better Regulation and regulatory governance. The former is ‘the policy for improving the quality and procedures of law-making’, while the latter refers to regulatory programming and the respect of Better Regulation principles in the drafting, adoption and implementation of the regulations. Regulatory quality is achieved through the respect of Better Regulation principles. The legislated principles of Better Regulation under Law 4622/2019 comprise proportionality, simplicity and clarity of content, coherence and avoidance of provisions deviating from general policy, effectiveness and efficiency, transparency and accessibility, subsidiarity and accountability, legal certainty, gender equality and democratic legitimisation (Article 58 of Law 4622/2019) and the mainstreaming of disability (Article 68 Law 4488/2017). These principles apply in the design and drafting of bills and regulations, and in their evaluation, simplification, reform and codification. Overall, these principles are a combination of traditional legal standards and criteria (proportionality and transparency), ‘substantive’ standards like gender equality, ‘managerial’ standards like effectiveness and efficiency, drafting standards (clarity and simplicity) and principles of ‘European’ origin like necessity or subsidiarity. However, despite their consolidation, these remain general and abstract, and so far have not been operationalised into practical and useful tools that can be used in the process of designing and drafting legislation. The Constitution also includes other substantive principles like the social state and fundamental rights that need to be respected when legislating. However, this is left to the discretion, expertise and knowledge of the law-maker. Beyond principles, the Law on the Executive State includes clear procedures for legislative management. These include the obligation for annual regulatory planning (Article 50 of Law 4622/2019), obligations to be respected when legislating (Articles 59–60 of Law 4622/2019), impact assessments (Article 62 of Law 4622/2019), consultation (Article 61 of Law 4622/2019), evaluation of the results of legislation (Article 56 of Law 4622/2019), law reform and codification (Article 65 of Law 4622/2019), and obligations to be respected in the transposition of European legislation (Article 58, para 3 of Law 4622/2019). As already mentioned, the Law on the Executive State introduced, for the first time, a detailed procedure for the management of the pre-legislative process, and names the competent structures within line ministries and the General Secretariat. 4 Circular No Υ190 of 18 July 2006, www.ggk.gov.gr/wp-content/uploads/2010/02/Egkiklios_kanonistikis_ metarruthmisi.pdf.

Legislation in Greece  223 At the level of law-making, an innovation in the Law on the Executive State is the explicit obligation for the General Secretariat on Legal and Parliamentary Issues to compile a Law Drafting Manual within five months of the entry into force of the law (hence by the end of 2019). From the beginning of 2020, no bill, draft decree or regulation will be submitted to the presidency if it is not in compliance with these requirements. This Drafting Manual will specify and operationalise the procedures and principles of law-making. The previous drafting guidance5 compiled by the Central Law Making Committee at the General Secretariat of the Government vaguely referred to simplicity, clarity and conciseness, consistency, and harmonious integration with existing legislation as the main principles that had to be respected in the drafting of legislation, but over-emphasised the formal, linguistic and syntactical aspects of drafting. The new Law Drafting Manual (although still in its draft form) takes a brave step forward in relation to its predecessor. For one thing, it singles out effectiveness as the primary value that can be achieved in the course of drafting legislation. It operationalises its content through a set of guidelines, drafting options and trigger questions that need to be addressed in the process of designing and drafting legislation. Without undermining the importance and pertinence of other law-making principles, it makes clear that these come into play in the effort of law-makers to design effective legislation. Therefore, the main innovation of the Manual is the move away from familiar prescriptive approaches to one that acknowledges the margin of discretion of the law-maker and focuses on the decision-making dilemmas and options rather than grammar, syntax and form. Overall, the principles for Better Regulation and the framework for legislative management have been regulated in detail since 2012. The fact that so far they do not seem to have caused any notable improvement in legislative quality appears to be due to the fact that they rely on the very simplistic assumption that legislative quality will improve as long as principles are legislated and formalities are observed. So far, this assumption has proven to be largely unfounded and has severely undermined the creative and deliberative aspects of law-making. Even the welcome developments of the Law on the Executive State do not completely detach themselves from the prevailing prescriptive law-making culture. It remains to be seen to what extent these changes will have a measurable practical impact.

13.4.  Technics of Legislation Legislative drafting is not a clearly acknowledged legal skill in the Greek legal system. No specialised drafters are in place, no formal or informal education and training are available, and experience comes only from practice, a fact that makes legislative drafting highly variable in terms of quality. In fact, drafting is often understood as a technical skill associated with the language, grammar, syntax and form of legislative texts. Guidance on the technics of legislation originates from the Constitution, the Law on the Executive State and a Drafting Manual that was due to be elaborated by the end of 2019.

5 Central Law-Making Committee, Instructions for the Drafting of Draft Laws and Secondary Acts (Athens, National Printing House, 2009). Previous reprints exist from 1984 and 1991.

224  Maria Mousmouti

13.4.1.  Drafting of Legislation and Secondary Acts The Constitution introduces a small, but important, number of directions or requirements relevant to the substance of legislating. Apart from the procedural requirements presented above (related to explanatory and cost reports), it consolidates the requirement of homogeneity in the content of legislation. Article 74, para 5 of the Constitution provides that a bill or law proposal containing provisions unrelated to its main subject matter shall not be introduced for debate. This extends to amendments and additions: these are not to be introduced for debate if they are not related to the main subject matter of the bill or law proposal. In practice, the requirement of homogeneity is one of the most persistent and problematic features of Greek legislation. Several laws include their titles ‘related’ or ‘other provisions’ under which irrelevant matters are legislated. Legislation results in a patchwork of provisions (often amending ones). In 546 laws examined for this purpose from the period 1975–95, 61 per cent of ‘other provisions’ were irrelevant to the main subject of the law.6 An important constitutional requirement, from the perspective of law-making, is not respected and its impact appears to be particularly weak. Another law-making direction that the Constitution directly provides concerns the issue of delegation. The delegation of legislative power is allowed in principle, except when regulation by formal law is explicitly required (eg, for the imposition of taxes, pensions or the exercise and protection of individual rights). However, it is subject to strict limits: the delegation must be specific and defined, and must state the subject, the aim and the limits of the provisions for which delegation is granted (Article 43, paras 1–2 of the Constitution). Law 4622/2012 further specifies the constitutional requirement by indicating that the subject of each bill should be regulated holistically and that delegation should be used exceptionally and only if existing delegating provisions are insufficient to serve this purpose. When requested by the Presidency of the Government, drafts of the decrees or decisions and timetables should be available for discussion in the Cabinet. In practice, the clear (and strict) requirements for the legislator to delegate their power are not always respected. Delegation is excessively used, resulting in the administration substituting for the legislator and being the main regulator rather than the executor of the will of Parliament.7 In the period 1975–2005, the number of presidential decrees was five times higher than that of laws,8 while the ratio remains almost the same (the ratio has slightly dropped to 4.6 presidential decrees per law) in the period 2001–16.9 However, the 749 laws adopted in that period included 19,727 delegations. This practice not only makes the executive an important co-actor in legislating, but also underlines the limited attention paid in the design of the content of legislation, which is then elaborated ad hoc after the enactment of legislation.

6 Panagiotis Karkatsoulis, Regulation, Deregulation, Reform (Athens, Sideris, 2011) 68, 69. 7 ibid 48. 8 ibid 75. 9 Dimitris Sotiropoulos and Leonidas Christopoulos, Polynomy and Kakonomy in Greece: A Plan for a Better and More Effective State (Athens, Dianeosis, 2017) 102.

Legislation in Greece  225 The drafting rules in the Law on the Executive State (Article 59 of Law 4622/2019) complement constitutional requirements or introduce new ones. These include: the issue of delegation (mentioned above); the need to include transitional provisions under a separate article; the need to repeat the entire amended provision, paragraph or chapter; the prohibition of generic or abstract references; the prohibition of deviating from existing provisions without important justification; the obligation to regulate an issue in its entirety; and the obligation to include repealed provisions in a separate article. Another set of drafting rules (Article 60 of Law 4622/2019) concern the entry into force of the provisions in a separate article and, most interestingly, the introduction of default entry into force of rules for provisions with an impact on businesses. The latter are enforced either on 1 January or 1 July each year. Exceptions are possible to satisfy urgent needs or the transposition of European or international obligations subject to justification. This rather incoherent bric-a-brac of drafting rules is further specified in the Manual of Drafting Methodology. Since the mid-1980s, practical guidance for the drafting of bills has been available.10 The guidance of the Central Law-Making Committee (KENE) takes a light-touch approach to the substantive dilemmas of law-making and places more emphasis on formal, linguistic, grammatical and syntactical choices of law-making. It addresses the preparatory procedure, the formulation and expression of legislative texts, their structure, the explanatory and other reports and countersignature from competent ministers. However, it does highlight the importance of the coherence of new provisions with the existing law, the distinction between substantive and transitional provisions, cross-references, exceptions, amendments and advised-against special procedural provisions or deadlines. Yet, the visibility of this guidance had been rather limited; there is no data on its use or usefulness, while the extent to which these requirements are respected in the drafting process has never been assessed. Nevertheless, the observation of legislative practice suggests that they are not taken into serious consideration. The new Manual (in its draft form at the time of writing) takes a more liberal approach to law-making. It looks at legislation as a strategic tool, the aim of which is to communicate rules and obligations to target audiences and induce their compliance. In this context, drafting is a thinking process rather than the mechanical application of predetermined solutions, and the role of the legislative drafter is to make the choices that lead to a text that can best achieve the desired objectives and, hence, be effective. In this vein of thought, drafting rules and techniques offer guidance and are followed to the extent that they serve the effectiveness of the legislative text. The Manual provides broad guidance and focuses on the dilemmas that need to be addressed in law-making rather than the microscopic details. The Manual suggests a straightforward structure that covers all aspects of the regulated subject and singles out the main regulatory messages of the bill; it proposes the inclusion of tables of contents and the use of purpose provisions, review and sunset clauses. It asks for legislation to be expressed in plain and straightforward language, avoiding complex formulations and jargon. It includes, for the first time, guidance for gender-neutral drafting of legislation. Last but not least, an effectiveness checklist supports the reflective examination of all the elements of legislation.



10 Central

Law-Making Committee (n 5).

226  Maria Mousmouti

13.4.2.  Transposition of European Directives The main obligation of those who transpose European law is to respect the principles of Better Regulation and drafting rules, to avoid ambiguity, legislative gaps and irrelevant provisions, and to ensure the timeliness of the transposition (Article 58, para 3 of Law 4622/2019). Specific guidance is in place.11 It focuses on the drafting techniques required to effectively transpose directives. Transposition uses as a starting point the ­directive text in the Greek language and recommends a faithful replication of the text, expression sequence, structure and numbering of articles of the provisions of the directive when these are autonomous and no national measures are required. Rules needs to be specific and clear and to consider the transposition measures from the perspective of achieving the objectives of the directive. When implementing measures need to be legislated, repeating the text of the directive does not constitute sufficient transposition. If national rules are already in place, their compatibility should be thoroughly examined and, if necessary, amended. When existing laws are amended, reference to the respective articles of the directive needs to be made in the titles. Specific guidance mentions the need for laws that include only provisions related to the transposition of the directive. The structure of the law needs to be divided into two or three distinct parts: the first should include transposition provisions which do not require implementing measures; the second provisions adopted to comply with the directive; and the third provisions included for reasons of unity of law. The relevant article and paragraph of the directive should be clearly indicated and tables of concordance should be always included. The new Manual does not focus on the essence of law-making in the case of transposition, but clarifies which law-making procedures are to be followed.

13.5.  Implementation and Assessment of Laws The implementation of legislation is the responsibility of the executive. Overall, the Greek legal system has a poor implementation, follow-up and evaluation culture.12 Implementation and evaluation are weak points in the life cycle of legislation and despite the fact that this has been consistently pointed out,13 not much has been achieved in this respect. The law on regulatory governance formally consolidated ex ante and ex post evaluation as the cornerstone of the Greek quality agenda and ‘toolkit’. Ex ante impact assessments are mandatory for every bill, amendment or regulatory act of major economic or social importance, while ex post evaluations are required three to five years following enactment. These provisions are retained by the Law on the Executive State, while some innovations have been introduced.

11 General Secretariat of the Government, ‘Practical Guidance for the Adaptation of National Law to European Union Law’, www.ggk.gov.gr/?p=3173 and www.ggk.gov.gr/wp-content/uploads/2013/10/versionB.pdf. 12 OECD, Greece: Review of the Central Administration (Paris, OECD Publishing, 2011) 98. 13 Giorgos Kassimatis, ‘The Enforcement of the Laws as a Technique of Annulling the Intention of the Parliament’ (1981) Review of Social Science 95 (in Greek).

Legislation in Greece  227

13.5.1.  Ex Ante Impact Assessment Since 2012, an impact assessment is required for every bill, amendment and regulation of major economic or social importance. The aim of this is to justify the respect of Better Regulation principles and take into consideration costs, benefits, risks and impacts on financial, social and environmental issues (Article 62 of Law 4622/2019). As already mentioned, the Law on the Executive State ‘upgraded’ the impact assessment into a ‘super-document’ that addresses all the necessary aspects of a bill and includes: (a) the explanatory report that identifies the problem that the bill addresses and concrete, time-bound and measurable objectives; (b) the report that quantifies the financial impact on the budget of the central government; (c) a special report on bills that generate expenses (Article 75, para 3 of the Constitution); (d) a report on the general impact of the bill, which details costs, benefits and risks to institutions and public administration, the market and competition, society and social groups, the natural urban and cultural environment, and islands; (e) a report on consultation; (f) a report on legality that justifies the constitutionality of provisions and their compliance with EU and international law; (g) a table of amended or repealed provisions; and (h) an implementation report that determines the bodies and the timetable for implementation and the issuance of regulations. The impact assessment is to be based on data and should include all opinions and findings of competent bodies and independent authorities. A template and a Manual for Impact Assessments will be elaborated by the General Secretariat of Legal and Parliamentary Issues within five months from the entry into force of the law (the end of 2019). An impact assessment template and instructions have been available since 2009 with instructions on their use. Despite the fact that limited empirical data are available on the effect of impact assessments on the quality of legislation, the results are not particularly encouraging. Ex ante assessments are of fluctuating and often very poor quality,14 and they appear to be yet another formality rather than a tool to facilitate a thinking process that can lead to norms of improved quality. Impact assessments come too late, lack convincing data and rarely engage in any substantive examination of alternative options to achieve the goals of legislation. Too many criteria are included and these are only superficially addressed. Their ‘unwritten’ function appears to be to justify decisions already made at a political level rather than to openly examine the necessity or content of legislation. Last but not least, there is no evidence of any impact in terms of the quality of debates in decision-making or the legislative process: MPs do not appear to view impact assessments as a source of arguments for a documented debate around legislation. The changes introduced by the new law rationalise and systematise to an important extent the pre-existing fragmentation. However, it is not clear how it purports to ‘upgrade’ the impact assessment from a bureaucratic to a deliberative tool. The over-sophistication of the new impact assessment requirements might be ‘too much’ for an administration that has not yet digested the usefulness of evidence-based decision-making and a political system that might be unprepared for it.

14 Panagioris Karkatsoulis, ‘Better Regulation Policy in Greece’ in Xenophon Contiades and Philippos Spyropoulos (eds), The Future of the Hellenic Parliament: Constitutional and Political Dimensions (Athens, Sideris, 2011) 187–92 (in Greek); Sonia Nalpantidou and Aristidis Hatzis, ‘The Impact Analysis of the of Regulatory Provisions’ (2008) Ι Applied Public Law 46.

228  Maria Mousmouti Consultation is obligatory. It publicises legislation in order to allow feedback from every interested party. It is led by the Presidency of the Government in cooperation with the initiating ministry and takes place through the online governmental portal,15 where bills and impact assessments are uploaded and made available for comments. The statutory two-week consultation period can be shortened or extended for duly justified reasons. The Coordination Service of the initiating ministry composes a consultation report, which is subsequently incorporated into the impact assessment. This report is uploaded to the governmental portal, sent electronically to participants and submitted to Parliament. In practice so far, consultations have rarely respected the statutory deadlines and are often of limited duration, compared to the statutory requirements.

13.5.2.  Ex Post Impact Assessment In Greece, evaluation is mainly associated with public sector performance, the quality of public services and projects or programmes.16 The law establishes the obligation to evaluate the results of legislation in the period of three to five years following enactment (Article 56 of Law 4622/2019), taking into account data from the application of legislation, implementation costs, impacts or ancillary consequences, benefits, broader positive results and the findings of case law. No analytical guidelines, templates or guidance are available. This results in proposals for improvement, amendment or reform of the provisions in question. Under the Law on the Executive State, evaluation is initiated by the Presidency of the Government in cooperation with the Coordination Service of the competent line ministry, and is conducted by the latter in cooperation and in consultation with social partners, research institutions and the Economic and Social Committee. Ex post evaluation has remained completely ineffective and to date remains only a requirement on paper: so far, no evaluation reports have been submitted or publicised and no guidance, templates or methodologies have been discussed or elaborated. Ironically enough, the rules aiming to improve the effectiveness of legislation remain largely ineffective themselves.

13.5.3.  Law Reform Article 11 of Law 4048/2012 introduced the notion of law reform for the first time into the Greek legal order. This is retained by Law 4622/2019 (Article 65, para 3). Law reform aims to reduce polynomy, and to update and clean up the stock of legislation to ensure that rules were functional, accessible and understandable. Law reform includes simplification, the repeal of obsolete provisions and the introduction in a unique text of laws, decrees and decisions. The administrative burden of Greek legislation is assumed to be very high. It was estimated by the European Commission to be around 6.8 per cent of GDP, one of the

15 www.opengov.gr. 16 Theodoros Tsekos, Quality of Services and Public Marketing: Towards a Human-Centric Approach to Public Administration (Athens, Ant Sakkoulas, 2007) 37ff (in Greek).

Legislation in Greece  229 highest in the EU-27.17 Simplification is one of the key long-term efforts to reduce complexity in legislation and facilitate compliance by reducing paperwork and the establishment of one-stop shops. It reduces unnecessary burdens, reduces paperwork, unifies forms, shortens transaction times and repeals unnecessary provisions. Simplification means include the non-time-bound issuance of paperwork, the reduction of checkpoints, the grouping of permits and approvals, the silent approval of applications if deadlines are missed, the establishment of one-stop shops, and the reduction of administrative burdens and electronic communication (Article 10 of Law 4048/2012). Several simplification efforts have been made. Administrative burdens have been measured in several sectors and adapted methodologies based on the Standard Cost Model have been elaborated. However, burdens magically re-appear shortly after they are abolished, while the lack of continuity and monitoring often renders efforts futile, to the frustration of citizens and businesses.

13.5.4. Codification Codification has been the main instrument used in the Greek legal order for reviewing the legislative system. Two types of codification are in place. The first of these is a formal code, enacted by Parliament according to special procedures, where all provisions on a specific issue are collected and redrafted into a unique text. The codified provisions are not amended beyond minor changes and corrections (Article 65, para 1). Administrative codification (which is the term used instead of consolidation), on the other hand, brings together in one text all regulations on a specific topic, with no legal validity and without repealing the norms included in the administrative codification (Article 65, para 2). The Central Codification Committee (CCC) was established in 2003 to oversee the process by re-structuring/re-casting, repealing and adjusting obsolete provisions or those requiring adjustments to new structures and linguistic change. The CCC was superseded by a Codification and Law Reform Committee in 2012 with more extensive competencies. This was abolished only a year later and the CCC was re-instated (Law 4142/2013) and re-vamped in 2019 (Law 4606/2019). In 2016, an explicit competence was given to the Minister of the Interior to elaborate a National Strategy on Codification and Reform of Greek Legislation that determines the principles, context, actions and funding for the improvement of the consistency of legislation, its quality and codification (Article 40 of Law 4369/2016), and a National Council for the Codification and Reform of National Legislation was established to monitor the implementation of the strategy. The first National Strategy covering the period from 2018 to 2020 was publicised in November 2018.18 Article 66 of Law 4622/2019 re-establishes the Central Codification Committee in the Presidency of the Government.

17 European Commission, Summary of the Impact Assessment. Commission Staff Working Document, SEC(2007) 85, Accompanying Document to the Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, on the Action Programme for Reducing Administrative Burdens in the European Union. 18 ‘National Strategy for the Codification and Reform of Greek Legislation 2018–2020’, November 2018, available at: www.minadmin.gov.gr/wp-content/uploads/ethniki_stratigiki_kwdikopoiisis.pdf.

230  Maria Mousmouti This is a 13-member body with the task of compiling codes, codifying legislation and reforming the law. It can cooperate with the experts and expert bodies, collect information and consult for the purposes of codification and law reform. On an annual basis, the chair of the Committee requests information from ministries on work in progress and priorities, while public sector entities are obliged to provide this information. The Committee works on the basis of a manual ((Article 66, para 4 of Law 4622/2019)19 with detailed methodological instructions on the process, the content and the rules to be followed during codification with regard to structure, language etc in the pursuit of simplicity, consistency and uniformity. The manual was updated in 2019 to reflect, among other things, the new competencies of the Committee.20 A new update is expected under Law 4622/2019. A codification project is initiated by the decision of the General Secretary of Legal and Parliamentary Issues following a proposal from the CCC or line ministries (Article 67 of Law 4622/2019). Codification committees are established in line ministries. They are kept informed about all ongoing codifications and their opinion might be sought. Draft codes are ratified following the special procedures of Article 76, paras 6–7 of the Constitution. Codes with decrees and decisions are issued by a presidential decree. Despite the fact that codification is well entrenched in the Greek legal culture, the overall impact of the codification effort has been limited. One reason for this is the resourceintensive nature of the codification work and the fact that without an electronic portal or a system for the maintenance and updating of codified legislation, it risks becoming outdated soon after this strenuous work has been completed. Another reason, which is obvious in the recent initiatives presented above, is the excessive emphasis placed on establishing bodies, competencies and formal frameworks rather than creating enabling conditions for a very demanding, resource-intensive and legally sensitive task.

13.6.  Teaching Legisprudence Legisprudence and legislative drafting are not included in law school curricula, either at undergraduate or postgraduate level. Teaching focuses on the content of black letter law, but its design and production are not a subject of formal legal education so far. Candidates who have passed the entrance exam at the School of Public Administration are offered a short curriculum on Better Regulation where they are presented with the principles and the tools of Better Regulation, regulatory impact assessment or administrative

19 General Secretariat of the Government, ‘Manual of Instructions for the Codification of Legislation’, 2003, available at: www.ggk.gov.gr/wp-content/uploads/2010/02/teliko_egxeiridio_odigion_gia_tin_kodikopoiisi_tis_ nomothesias.pdf (2003 version) (in Greek). 20 General Secretariat of the Government, ‘Manual of Instructions for the Codification of Legislation’, 2019, available at: www.ggk.gov.gr/wp-content/uploads/2019/04/%CE%A4%CE%95%CE%9B%CE%99%CE%9A% CE%9F-%CE%95%CE%93%CE%A7%CE%95%CE%99%CE%A1%CE%99%CE%94%CE%99%CE%9F-%CE% 95%CE%9D%CE%99%CE%91%CE%99%CE%9F-%CE%9A%CE%95%CE%99%CE%9C%CE%95%CE%9D% CE%9F.pdf (2019 version).

Legislation in Greece  231 burden reduction, but this does not extend to principles and techniques of legislative drafting. However, the training at the National School of Public Administration is largely theoretical and involves no ‘real-life’ case studies of legislation in preparation. There are also very limited training opportunities for staff once they enter the Greek administration. The roll-out of the regulatory policy subsequently was not accompanied by a consistent and systematic training effort that would complement the toolkit and enhance the knowledge base and the development of knowledge and expertise.

Further Reading G Gerapetritis, New Economic Constitutionalism in Europe (Oxford, Hart Publishing, 2019) A Hatzis and S Nalpantidou, ‘From Nothing to Too Much: Regulatory Reform in Greece’, NBER Working Paper No 13/2007, available at: http://ssrn.com/abstract=1075963 P Karkatsoulis, ‘Better Regulation Policy in Greece’ in X Contiades and P Spyropoulos (eds), The Future of the Hellenic Parliament: Constitutional and Political Dimensions (Athens, Sideris, 2011) 187–92 (in Greek) ——. Regulation, Deregulation, Reform (Athens, Sideris, 2011) 48 OECD, OECD Reviews of Regulatory Reform: Regulatory Reform in Greece 2001 (Paris, OECD Publishing, 2001) ——. Greece: Review of the Central Administration (Paris, OECD Publishing, 2011) ——. Better Regulation in Europe: Greece (Paris, OECD Publishing, 2012) ——. Measurement and Reduction of Administrative Burdens in Greece: An Overview of 13 Sectors (Paris, OECD Publishing, 2014) ——. ‘Greece’ in OECD Regulatory Policy Outlook 2018 (Paris, OECD Publishing, 2018) 192–93 D Sotiropoulos and L Christopoulos, Polynomy and Kakonomy in Greece: A Plan for a Better and More Effective State (Athens, Dianeosis, 2017) F Spyropoulos, X Contiades, C Anthopoulos and G Gerapetritis (eds), The Constitution: An Article by Article Interpretation (Athens, Sakkoulas, 2017)

232

14 Legislation in Hungary TÍMEA DRINÓCZI*

Context As in many other aspects of public law after 2010 in Hungary, the enacting of legislation is characterised by formalism and a disregard of substantive considerations of any components of legisprudence,1 and is overwhelmed by political will. Hungary does not follow generally accepted trends2 in legislation; impact assessment, consultation, parliamentary deliberations, evidence-based legislation, use of information and communications technology (ICT) and transparency. Formal and material quality is being buried by Hungarian illiberalism. Achieving quality in legislation is not a priority and existing rules are not observed; material quality (ie, the constitutionality of laws) is compromised by the illiberal and partisan Constitution adopted in 2011 (Fundamental Law (FL))3 and the biased Constitutional Court.4 The creation and consolidation of the Hungarian illiberal constitutionalism, the FL and the new illiberal approach to legislation originated in the second government of Prime Minister Viktor Orbán and his Fidesz political party. This chapter provides a critical overview on the Hungarian legislative process. It starts off by setting out the goals of legislation (section 14.1), followed by an explanation of the regulatory background (section 14.2). Section 14.3, by focusing strictly to the ‘leges’, defines the different legal sources and their places in the legal hierarchy. The following sections outline who legislates in which procedure (section 14.4), how laws are drafted (section 14.5) and how the implementation and assessment of laws are conducted (section 14.6). The teaching of legisprudence is then presented. The chapter concludes in section 14.7.

* I am grateful to Dr Gábor Jancsó, Head of the Department of Criminal Procedure Law, Ministry of Justice, Hungary, for his valuable comments. 1 See lately, eg, U Karpen and H Xanthaki (eds), Legislation and Legisprudence in Europe: A Comprehensive Guide for Scholars and Legislative Practitioners (Hart Publishing, 2017). 2 See, eg, T Drinóczi, ‘Concept of Quality in Legislation – Revisited: Matter of Perspective and a General overview’ (2015) 3 Statute Law Review 211, 225–27. 3 Fundamental Law of Hungary (25 April 2011) Official Gazette 2011, nr 43. p 10656. This chapter uses the English translation of the FL that can be found on the website of the Constitutional Court (https://hunconcourt. hu/fundamental-law) because the version found at the website of the Parliament (www.parlament.hu/documents/125505/138409/Fundamental+law/73811993-c377-428d-9808-ee03d6fb8178) has not been updated yet. 4 On Hungarian illiberal constitutionalism, see, eg, T Drinóczi and A Bień-Kacała, ‘Constitutions and Constitutionalism Captured: Shaping Illiberal Democracies in Hungary and Poland’ (2019) German Law Journal 1140.

234  Tímea Drinóczi

14.1.  The Goals of Legislation The FL generously offers not only goals for the exercise of legislative power but also an ideological framework. As opposed to the liberal and ideologically neutral former Constitution, the FL is based on historical and religious considerations, has an anti-egalitarian5 and anti-liberal6 character, and holds that the fundamental cohesive values are loyalty, faith and love. There is only one explicit reference to a ‘goal’, which, according to the preamble entitled ‘National Avowal’, is supposed to be the ‘common goal of citizens and [the] State’. This goal is the achievement of ‘the highest possible measure of well-being, safety, order, justice and liberty’. Yet, a great part of the ‘National Avowal’ along with many provisions of the ‘Foundation’ (ie, the second chapter of the FL) and the specific constitutional provisions requiring legislation can be viewed as a collection of sometimes contradictory goals set for the Parliament. While the aspirations of the National Avowal may be perceived as pure goals to be achieved or ideological guidance informing the framework of legislative activity, the subject matters that the FL requires to be incorporated into a piece of legislation, adopted either by a simple or heightened majority of MPs present (cardinal acts),7 are clear constitutional mandates for the Parliament to legislate. In particular, the sentences of the National Avowal starting ‘We recognize’, ‘We promise’, ‘We value’, ‘We proclaim’, ‘We respect’, ‘We hold’ and ‘We do not recognize’8 may be of importance. Their significance is underpinned by Article R)(4), which demands that the provisions of the FL shall be interpreted in accordance with the National Avowal. These proclamations can be paired up with other provisions of the FL and gravitate towards the following issues: • Christian tradition and identity rooted in the historical constitution and the protection of national heritage and language and culture – issues closely linked to the constitutional identity of Hungary.9 • National minorities as constituent parts of the state, and the protection of their language and culture.10 • The future generation and protection of resources.11

5 K Kovács, ‘Equality: The Missing Link’ in GA Tóth (ed), Constitution for a Disunited Nation: On ­Hungary’s 2011 Fundamental Law (CEU Press, 2012) 186. 6 According to the National Avowal: ‘We hold that individual freedom can only be complete in cooperation with others.’ 7 See below, section 14.3. 8 This chapter does not wish to deal with this sentence; for further details, see T Drinóczi, ‘Constitutional Politics in Hungary’ (2016) 1 Vienna Journal on International Constitutional Law 63. 9 ‘We recognise the role of Christianity in preserving nationhood’ and Article H). For more on this, see below. 10 ‘We proclaim that the national minorities living with us form part of the Hungarian political community and are constituent parts of the State’ and Article XXIX, which expresses that ‘National minorities living in Hungary shall be constituent parts of the State’. 11 We bear responsibility for this cause, according to the National Avowal. See also Article P) on environmental protection.

Legislation in Hungary  235 • The importance of family, although ‘family’ is defined in an unacceptably narrow manner, excluding cohabitation of de facto family members. Pursuant to the FL, ‘family ties shall be based on marriage’ that is ‘the union of a man and a woman established by voluntary decision’ ‘or the relationship between parents and children’.12 • Peaceful co-existence with other nations.13 • Democracy, which is perceived by the National Avowal as a service provided by the state to its citizens in an impartial and equitable manner,14 and yet the Parliament adopted (in 2018 and withdrew in 2019) the Act on administrative courts (12 December 2018) which was the subject of debate due to its potential to undermine judicial independence15 and the enforcement of politically sensitive fundamental rights.16 • Human dignity on which the ‘human existence is based’ and the general duty to help the vulnerable and poor. And yet, in another sentence, the National Avowal expresses that ‘the honor of each person is based on labor and the achievement of the human mind’. It can also be paired up with a provision pursuant to which ‘the nature and extent of social measures may be determined in an Act in accordance with the usefulness to the community of the beneficiary’s activity’.17 Subject matters to be adopted by a two-thirds majority (a special majority) somehow reflect the aspirations mentioned above and encompass three main themes: • The first is the protection of families, and yet the Parliament has just adopted the ‘overtime amendment’ or ‘slave law’, with which the government pleases foreign employers based in Hungary, but which adversely affect Hungarian employees.18 • The second concerns the extensive rights of national minorities, including the possibility of them becoming involved in the work of the Parliament. The practical efficiency of the electoral rules in this regard is another issue, as in 2014 no minority group could secure any seat from their list, while in 2018, only the German minority won one seat under the preferential minority quota system.

12 See also art L) FL and, eg, Z Fleck et al, ‘Opinion on the Fundamental Law of Hungary’, http://lapa.princeton. edu/hosteddocs/amicus-to-vc-english-final.pdf, 17–18; Drinóczi (n 8) 63–98. 13 See also arts Q) (on international law and obligations) and E) (on European law) FL. 14 See also ibid arts XXIV (right to fair administration) and XXVIII (access to justice). 15 The sentence in the National Avowal reads as follows: ‘We hold that democracy is only possible where the State serves its citizens and handles their affairs in an equitable manner, without abuse and impartially.’ Even if the independence of judiciary affects the principle of the rule of law and not democracy, adjudication and administration of justice is still to be considered as a service provided by the state in an impartial manner. Thus, it seems that the FL itself confuses democracy and rule of law. 16 eg, https://index.hu/english/2018/12/12/administrative_courts_minister_of_justice_unprecedented_powers_ independence_separation_of_power. 17 Article XXIX(4); see also arts M) (on the declaration that the economy of Hungary shall be based on work which creates value and on freedom of enterprise) and II (on human dignity). 18 2018. évi CXVI. törvény a munkaidő-szervezéssel és a munkaerő-kölcsönzés minimális kölcsönzési díjával összefüggő egyes törvények módosításáról (Act CXVI of 2018 on the amendment of Act on organisation of working time and fees of temporary agency work), https://www.theguardian.com/world/2018/dec/12/hungarypasses-slave-law-prompting-fury-among-opposition-mps.

236  Tímea Drinóczi • The third is (with the explicit confrontation of current European values and exclusion of others) related to the protection and preservation of the constitutional identity of Hungary which is accomplished through three measures. First, Article R(4) states that the protection of the constitutional identity and Christian culture of Hungary shall be an obligation of every organ of the state, which also requires an adequate legislative activity. So does the stipulation of Article E), pursuant to which European integration cannot limit Hungary’s right to determine its population. Third, the new constitutional framework requires that the asylum rules ensure, among other things, that no foreign population shall be settled in Hungary.19 Other matters in which a two-thirds majority is required are: state sovereignty (rules on citizenship and coats of arms); regulation of national defence and military service, police and national security services, and special legal order; rules on the most important state organs, the status of state office holders and the operation of political parties; election rules and some fundamental rights, such as freedom of religion, freedom of media and suffrage; and rules on arable lands, exclusive economic activity of the state, and the pension and how to share public burdens. Acts, adopted by a simple majority, will regulate the rules for fundamental rights and obligations, the conditions for deprivation of liberty, the right to education, the employment of a child, and social measures for those is need; in this latter case, as mentioned above, there is no obligation implied, but if the Parliament so decides, it has to adopt an act on social support.

14.2.  Regulatory Background In Hungary, rules on the process and organisation of legislation and actors involved are laid down in normative and binding norms. In this jurisdiction, guidelines are not really applied; if there are any, their quality, up-to-date nature and usefulness are quite diverse and highly questionable.20 As has been indicated above, the FL is an illiberal constitution; it does not endeavour to restrict the political decision-maker or to protect fundamental rights in accordance with international measures. On the other hand, it provides for the most important general and abstract rules on legislation and sets certain goals that the legislative power should strive for. Article T) not only contains the definition of laws and cardinal acts, but also stipulates the most important rules of legislation, such as the hierarchy of norms, who has right to initiate the legislative process and what kind of majority is necessary for the adoption of an Act of Parliament (referred to in this chapter as an act or statute). Article S) provides rules for constitutional amendment.21

19 Article XIV(1), (4)–(5) FL. 20 See, eg, the governmental website on impact assessment (http://hatasvizsgalat.kormany.hu/segedanyagok), where outdated information and guidelines can be found. 21 Figure 14.1 provides an overview on the legal sources, types of laws and legal hierarchy under the FL.

Legislation in Hungary  237 As the legislative process can generally be broken down to three phases – the preparatory or drafting phase, the parliamentary phase and the post-parliamentary phase – and will include rules on compliance with EU law and incorporating international obligations, the Hungarian legislative framework more or less follows the logic that these phases imply. After the 2010 election, the Parliament adopted two acts governing the field of legislation. The new Act on legislation (Act CXXX of 2010) determines the basic requirement of legislation, such as uniformity of the legal system, basic rules on modification, entering into force, the effects of laws, notification concerning EU-related legislation, ex ante and ex post evaluation of laws, consultation, publication, accessibility and publication of laws. The Act on public consultation (Act CXXXI of 2010) details the consultation types and processes. Different governmental decisions regulate the preparation of drafts. The Standing Orders of the Government22 regulate, among other things, the content, submission, commenting process and discussion of any governmental proposal, including draft laws. There are ministerial decrees on impact assessment23 and drafting.24 There is no specific law on the reduction of administrative burdens or requirements for (the employment of) drafters and those dealing with impact assessment. The ‘parliamentary phase’ is regulated by the Act on Parliament25 and the Rules of Procedure of the Parliament.26 Detailed rules on compliance to EU law are laid down in a decree of the government.27 Besides those incorporated into the Act on legislation, rules on procedure on international treaties are regulated by Act L of 2005.

14.3.  The Meaning of ‘Laws’, the ‘FL’ and ‘Regulatory Means of Public Law’, and Their Place in the Legal Hierarchy In Article T), the FL defines laws as generally binding rules of conduct that are issued by a body with legislative/law-making28 competence as specified in the FL and published in the Official Gazette. The term ‘law’ covers the Acts of Parliament, government decrees,29

22 Resolution 1144/2010. (VII. 7.) of the Government. 23 12/2016 (IV.29) MvM decree on ex ante and ex post impact assessment. 24 61/2009. (XII. 14.) IRM decree on drafting. 25 Act XXXVI of 2012 on the National Assembly, www.parlament.hu/documents/125505/138409/Act+XXXVI+ of+2012+on+the+National+Assembly/b53726b7-12a8-4d93-acef-140feef44395. 26 Resolution 10/2014 (II.) OGY on certain provisions of the Rules of Procedure, www.parlament.hu/documents/125505/138409/Resolution+on+certain+provisions+of+the+Rules+of+Procedure/968f2e08-f740-4241-a8 7b-28e6dc390407. 27 302/2010. (XII. 23.) decree of the Government. 28 ‘Legislative competence’ in this sense is not restricted to adoption of acts/statutes of Parliament (lex), but means all law-making competences. 29 Acting within its functions, the government shall adopt decrees in matters not regulated by an Act or on the basis of authorisation by an Act (art 15(3) FL). The government, within its norm-creating (law-making) activity, can issue implementing decrees under statutory authorisation and can issue normative resolutions and normative orders. ‘Implementing legislation lay[s] down detailed rules within the framework allowed by the basic legal act mainly which promote the practical realization of provisions of the basic act and interpret concepts used in the basic act.’ Decision 19/1993. (III. 27.) of the Constitutional Court.

238  Tímea Drinóczi decrees of the President of the National Bank of Hungary,30 decrees of the Prime Minister and ministerial decrees,31 decrees of autonomous regulatory bodies32 and decrees of local government,33 decrees of the National Defence Council and the President of the Republic during any state of national crisis or state of emergency.34 It is worth noting that the FL itself, even if generally binding rules of conduct may be laid down therein,35 is not considered to be ‘law’ as it is not listed in Article T)(2). The FL is defined instead as the ‘foundation of the legal system of Hungary’ that ‘shall be binding on everyone’36 and with which no laws shall conflict.37 As for the publication of decrees of local government and other legislation adopted during any ‘special legal order’ (ie, emergency situations stipulated in Articles 48–54), the FL allows for applying different rules laid down in a cardinal act.38 Cardinal acts are Acts of Parliament that are adopted and amended by a two-thirds majority vote of the MPs present.39 Cardinal acts are not positioned at a higher level in the hierarchy. The heightened majority required for their adoption means an extra procedural requirement in the voting process and, theoretically, merely underpins the importance of their subject matter, which would demand a greater consensus among the parliamentary political forces. The FL and its amendments have a special place in the Hungarian legal hierarchy. Pursuant to Article S), the Parliament, following a two-thirds majority of its elected members, adopts and amends the FL. The FL contains some requirements concerning the adoption process,40 but provides for no eternity clauses or any other multi-tiered amendment rules41 and excludes the possibility of a constitutional referendum.42 The overlapping nature of the constitution-making, constitution-changing and legislative power43 led to the adoption of the FL in 2011 and its several highly and vehemently disputed amendments. According to the FL, it is the government which implements the Constitution44 and submits bills to the Parliament to this end. The legal source system and types of laws and legal hierarchy is summarised in Figure 14.1.

30 Article 41 FL. 31 ibid arts 18(3), 16(2) and 51. 32 ibid art 23. 33 ibid art 32(2)–(3). 34 ibid arts 49(4) and 50(3). 35 ibid art T)(1). 36 ibid art R)(1) and (2). 37 ibid art T)(3). 38 ibid art T)(1). 39 ibid art T)(4). 40 ibid arts S). 41 R Dixon and D Landau, ‘Tiered Constitutional Design’ (2017) 86 George Washington Law Review, FSU College of Law, Public Law Research Paper No 839, https://ssrn.com/abstract=2953755. 42 Article 8 (3)a) FL. 43 ibid art 1(2)b). 44 Point 4 of the final provisions.

Legislation in Hungary  239 Figure 14.1  Legal source system, types of laws and legal hierarchy under the FL Fundamental Law Generally recognised principles of international law Σ2/3

Treaty of Accession to the EU

Acts (simple: 2/3 majority or cardinal Acts)

EU law

Int. Law decree*

treaties Decree of the Goverment

Decree of the President of the Hungarian National Bank

Decree of the Prime Minister and Ministers

Special legal order Decree of the Defense Council in the case of war Decree of the President of the Republic in the case of national emergency

Decree of autonomous regulatory bodies Decree of the local government (cannot be contrary to other laws) * Law decrees were adopted by the Presidential Council of the People’s Republic during the socialist regime. This organ ceased to exist in 1989, but some of the law decrees are still in effect; they can be withdrawn by an Act of Parliament.

The Hungarian legal system acknowledges other sources of binding rules, yet they are (mimicking their importance and scope of application) regulated not by the FL, but by the Act on Legislation.45 The ‘regulatory means of public law’, which encompasses normative resolutions and normative orders, differ from ‘laws’ as they do not establish generally binding rules of conduct, but may instruct inferior bodies, personnel and the operation of that particular state organ. None of these legal sources can be contrary to any laws. The regulatory content of a normative resolution assigns tasks for authorities under the control of the issuing state organ, and their own operations and plans; that of a normative order is similar, as it includes assigning tasks to authorities under the control and supervision of the issuing person and their personnel.46

14.4.  The Organisation and Process of Legislation The logic of the parliamentary system would require that most bills are drafted and submitted by the government, due to its infrastructure and resources, after careful consideration,

45 Article 23 FL. 46 An example of a normative decision are the Standing Orders. A normative order can be issued by, eg, the prime minister.

240  Tímea Drinóczi consultation, impact assessment and discussion so that they could be based on evidence and, due to the inclusive character of the legislative process, be more acceptable to the addressees. As it is a cyclic process, the impetus for legislation can be and partly should be the result of ex post evaluation of legislation, which is best conducted by those who have evaluated the effects of the proposed legislation in advance, ie, the government through its individual ministries. Despite still being in its infancy, in the literature and policy papers on legisprudence, there is a growing awareness of the need to conduct ex post assessment and link it to its ex ante counterpart.47 These views are apparently not shared by the current Hungarian political decision-makers, as evidenced by the new approach towards ex post assessment.48 As has been seen in section 14.1 above, theoretically, there are many regulatory areas in which the government has no room to act under its own law-making powers, unless it proposes legislation to the Parliament, as is typical in a parliamentary system. In Hungary, this is formally the case. In reality, however, the government enjoys not only the majority but the two-thirds support of the Parliament, which will vote in favour of whatever the government wants.49 This is even so when it is not the government which has proposed the particular bill that reflects governmental policies, not to mention the fact that submissions by MPs are used to circumvent the consultation procedures that should be observed in the case of any governmental proposals.

14.4.1.  The Pre-parliamentary Process and Consultation The regulatory framework of the pre-parliamentary phase also features formality, which does not have any effect on how the actual drafting process is conducted. The Standing Orders of the Government require that the draft shall be submitted on time, which would allow enough time for proper deliberation and adoption as required by, for example, the Standing Orders of the Parliament and shall contain all the information necessary for making an informed decision, including its conformity with the policies of the government, future budgetary, social, economic, administrative and international effects supported by the necessary calculation contained in the impact assessment sheet.50 The draft, as part of the internal consultation process, needs to be sent first to the state secretary of the Chancellery, who ascertains the conformity of the draft with the policies of the government, the requirements of constitutionality and European legislation, and the adequacy of the chosen legislative means, and establishes whether the draft has budgetary implications and, if it has, whether this is well established. If the state secretary of the Chancellery so decides, the draft will be sent to the state secretaries of the ministries, competent government commissioners and leaders of bureaus, and to the other bodies authorised by the Act

47 eg, RIA application, the quality of the regulatory impact assessment process and sustainability checks. Bertelsmann Stiftung 2014 (Report 2014), Expert Report on the implementation of ex-post evaluations. Good practices and experiences in other countries. Prognos, 2013. (Prognos 2013). 48 See section 14.5 below. 49 Besides the overtime regulation, which was submitted by two MPs, another most recent example is the Act on Administrative Courts that was proposed by the government. 50 EU-related legislation requires further information.

Legislation in Hungary  241 on Consultation to be consulted (external consultation). The timeframe for the internal and external consultation is 10 working days; in the case of comprehensive legislation, it is 30 days. The deadline, if it is justified, can be more and even less than 10 working days, but cannot be less than five working days. By the end of this process, all controversies need to be resolved, but there may be more versions. As a next step, the draft is sent to the Conference of the state secretaries, which meets every week and prepares the decisions for the government, including refusing the debate about a draft or asking for its revision by requiring a new consultation process. Having been debated by the Conference, a draft is sent to the government and, if it is supported, the prime minister submits it to the Parliament. In reality, in many cases it is the cabinets of the Government (either the Economic Cabinet or the Strategic Cabinet) which has the final say concerning a legislative proposal. Consultation is deemed to be important. It is regulated in a separate act and its legislative content, to the illustrated extent concerning ‘external’ consultation, is even repeated in the Standing Order of the Government. However, in reality, consultation rules cannot be enforced as there are no legal consequences in place for non-compliance, and consultation is rarely conducted. The Constitutional Court in 2004 refused to annul a piece of legislation due to the non-compliance of the consultation rules. It stated that the ‘real’ legislative process starts with the submission of the bill before the Parliament. Therefore, any omission or failure in the preparatory phase does not entail the nullity of the law; it could only have occurred if there had been an omission or failure relating to consultation in the parliamentary process required by the Constitution, any act or the Standing Orders.51 However, the FL does not contain any provision on obligation to consult. Pursuant to the new Act on Consultation of 2010, local government or other (state) organs, such as courts, prosecutors and the Constitutional Court, may give their opinion on a law only if they are expressly authorised to do so by the Act, and even then they are entitled to do so only with regard to draft legislation relating to their legal status or scope of duties. Within the framework of the ‘general consultation’ procedure, anybody may express their opinion through the email address given on the website about drafts published. A confirmation must be sent about the receipt of opinions.52 Under the ‘direct consultation’ procedure, the minister competent to draft the legislation concludes strategic partnership agreements53 with several non-governmental organisations and public bodies to open up the involvement of more expertise in the preparatory stage of legislation. Thus, ministers can be selective in choosing with whom they want to engage. The obligation relating to the electronic publication of draft legislation – which constitutes a basic condition for a genuine consultation – is an obligation that ministries have failed to observe since at least 2008.54 The public consultation is a mere formality: most draft legislation comes before the Parliament without consultation or without a consultation period suitable for forming an opinion; bills are submitted to the Parliament and even

51 Decision 7/2004. (III. 24.) of the Constitutional Court; reinforced in its decision 8/2011. (II. 18.). 52 Article 9 of the Act on Consultation of 2010. 53 ibid art 13(2). 54 É Alberti et al, ‘Impact Assessments: Public Consultation and Legislation in Hungary 2011–2014’, 2015, www.crcb.eu/wp-content/uploads/2015/07/legislation_2014_report_150630.pdf; É Alberti et al, ‘The Quality of Hungarian Legislation 2013–2014, 2015, https://ec.europa.eu/hungary/sites/hungary/files/docs/body/legislation_ eu_2014_report_150216_2100.pdf.

242  Tímea Drinóczi adopted before the end of the time limit prescribed for consultation.55 The person in charge of the preparation of the draft must prepare a summary of the comments received and, if those comments have been rejected, of the reasons for rejection, which should be published on the website; however, no such summary could be found there. As an alternative to legally regulated public consultation (an Act of 2010) with societal actors, the second Orbán government introduced and the other governments have also applied a system of ‘national consultation’. This involves questionnaires sent to all households56 on different, highly populist issues, the answers for which have previously been preformulated in political communications. The approach is thus structured in a top-down and state-directed manner. This is not a substitute for a genuine political consultation.

14.4.2.  The Parliamentary Process The power to submit a draft act is vested on the President of the Republic,57 the government as a collegiate body, any parliamentary committee and any MP.58 Unlike in to some European states,59 neither constitutional nor legislative initiatives are acknowledged in Hungary. In the single-chambered Hungarian Parliament, the parliamentary phase has seven stages: (1) submission; (2) plenary discussion; (3) detailed debate at the committee; (4) debate at the Committee on Legislation, which is a committee in charge of making proposals, delivering opinions, taking certain decisions, and exercising the powers specified in the FL and other laws;60 (5) general debate at the plenum; (6) the voting process; and (7) signing the adopted bill. Laws are discussed at the plenary session and in committees, and are adopted by a simple majority of votes, except when the votes of the two-third of MPs present or elected are required.61 Before the final vote, a preliminary constitutional review of the adopted act can be initiated by the proponent of the bill, the government or the Speaker of the Parliament. After adoption, laws are signed by the Speaker of the Parliament and, then in the post-parliamentary phase, the head of state. When a bill is submitted, the Speaker designates a committee (the designated committee) to hold a detailed debate on the proposal. If the proposal falls within the competence

55 See the amendment bill on expropriation: the governmental website informed us that opinions could be submitted until 28 June 2012, but the bill was already passed by Parliament on 18 June 2012. The President of the Hungarian Academy of Sciences had 54 minutes to comment on the draft legislation on the transfer of funds of the Academy: https://www.chemistryworld.com/news/diminishing-autonomy-of-hungarianscience-academy-worries-scientists/3009327.article; https://index.hu/belfold/2018/10/31/palkovics_laszlo_ceu_ mta_interju_168ora. 56 A Ágh, J Dieringer and F Bönker, 2015 Hungary Report (Bertelsmann Stiftung, 2015), www.sgi-network.org/ docs/2015/country/SGI2015_Hungary.pdf, 21. 57 Article 9(5) FL. This power has never been exercised. 58 ibid art 6(1). 59 Legislative initiative means that a given number of voters can propose laws, while constitutional initiative gives the opportunity for voters to initiate a procedure for amending a constitution. For instance, 5,000 Slovenian voters can submit a legislative initiative and 30,000 voters can propose a constitutional amendment. cf Constitution of Slovenia, Articles 88 and 168, respectively; T Drinóczi, ‘Legislative Process’ in Karpen and Xanthaki (n 1) 33–52. 60 Act on Parliament, art 21/A. 61 Articles S(2) and E(4) FL.

Legislation in Hungary  243 of another committee, it may join the designated committee (the cooperating committee). These two committees work together on the bill and form a reading committee. A general debate at the plenary follows where amendments to the bill may be submitted. In practice, the opposition has only one or two days to submit amending proposals. The thus-compiled legislative package is discussed by the reading committee, which votes on proposed amendments by either supporting or upholding them with changes; it may also formulate additional amendments. The detailed debate is closed by the adoption of an amendment and the report on the detailed debate. These documents are sent to the Speaker. Before the Committee on Legislation starts its discussion, the proponent of the bill may explain their position on the amendments proposed in committee. The Committee on Legislation forms an opinion on the amendments it has received from the Speaker and, along with its own amendments, it formulates a single proposal called the summary of proposed amendments. A report of the findings and results of the process is sent to the Speaker, who also receives the combined text of the legislative proposal and the summary of proposed amendments (the unified proposal) signed by the proponent of the bill. A plenary debate is held on the committee reports regarding the detailed debate, on the summary report and on the summary of proposed amendments. As a result of this discussion, the Parliament may either uphold or reject the amendments. In this latter case, it decides on the summary of proposed amendments, ie, the proposal of the Committee on Legislation. If the Parliament upholds the amendments, the bill goes back to the Committee on Legislation, which submits a second summary of proposed amendments (the combined text of the summary of proposed amendments and the upheld proposed amendment) and a second unified proposal (the combined text of the legislative proposal and the second summary of proposed amendments). The Parliament decides on the second summary of proposed amendments. Either way, a final vote follows, before which the proponent of the bill may request a postponement of the vote if they wish to submit a proposed amendment in preparation for the vote.62 The speed of the legislative process is accelerating, which has an adverse effect on the quality of law, but this phenomenon is viewed by the political decision-maker with a measure of pride. As can be seen on the website of the Parliament: ‘After 1990, the National Assembly enacted 140 laws on average each year, but the most recent cycle has been much more productive (with an annual average of 215 laws in the 2010–2014 cycle).’63 Researchers do not share this enthusiasm; they have shown that there is an ‘increasing trend in the volume of the bills submitted’64 by the MPs of the ruling party (ie, Fidesz); less time is spent on the debate in the Parliament;65 there is a rising share of ‘junk laws, ie, the published laws with considerable faults, which need to be modified within one year of their publication’.66 The website of the Parliament reports that: ‘The Government submits most of the proposed legislation (around 55–60%), followed in terms of frequency by Members of

62 See www.parlament.hu/documents/125505/126210/The+legislative+process++(block+diagram)/695a4da8-0 dca-4675-aeee-64cc33fefd99. 63 www.parlament.hu/en/web/house-of-the-national-assembly/the-legislative-process. 64 Alberti et al, ‘Impact Assessments’ (n 54) 83. 65 ibid; TA Nagy, ‘Parlamenti sebesség’ (Parliamentary Speed), http://meltanyossag.hu/files/meltany/imce/kp_ parlamenti_sebesseg_120228.pdf. 66 Alberti et al, ‘Impact Assessments’ (n 54) 84.

244  Tímea Drinóczi Parliament and committees.’67 And indeed, mainly after 2010, important laws (such as constitutional amendments, laws governing churches or the recently adopted overtime regulation) have been initiated by MPs. This implies that, most probably, the drafting process has not observed the rules of quality drafting. The reasons for this are at least twofold: it is either because laws have been prepared by the MPs, who have neither the infrastructure nor the human resources and skills to conduct a quality drafting process including all the consultation and impact assessments; or the drafts have been prepared in the ministries (or somewhere else as an outsourced activity), without observing underlying rules, and then have ‘unofficially’ been given to the MPs belonging to the majority faction(s) in order to submit them as their own initiative. Due to the lack of focused training68 and legislative and drafting skills, the quality of submission of MPs in terms of, for example, the implications the draft has on the coherence and integrity of the legal system might be far below that of a governmental draft. The fact that MPs submit many laws does not mean that the number of adopted acts has been decreasing. On the contrary, as Table 14.1 shows, there has been a considerable increase in the number of statutes and amendments, which may easily be associated with the reformative feature and thus accelerated and ad hoc nature of Hungarian legislation. This phenomenon necessarily entails faulty laws demanding almost immediate (ie, even before the entering into force of the act) corrective action, which happened with the new Criminal Procedure Code of 2017.69 ‘The time elapsed between the introduction and the publication of a bill significantly shortened after 2010. The accelerated legislative process led to restricted possibilities to debate, and to form and explain professional arguments.’70 As opposed to other states, where more than 100 working days are spent debating a bill,71 in Hungary, the average time has been between 29 and 42 working days since 2006. The situation was not much better before 2010: between 2006 and 2010, the average debating time was 42 working days. Besides, this period also featured night-sessions, when an important bill is scheduled for debate during the night, and one-day acts, which are submitted and adopted on the very same day. This practice apparently did not cease after 2010.72 Nowadays, there are debates lasting de facto only couple of minutes in the plenary or in the committees. The number of laws modified within one year, as compared to other years, was extraordinarily high in 2011 and 2012: 56 and 49 respectively. Between 2007 and 2010, the average was 10.6, while it had already increased to 24 by 2010. In 2013, the number of these ‘junk laws’ decreased to 27.73

67 www.parlament.hu/en/web/house-of-the-national-assembly/the-legislative-process. Between 2006 and 2010, the Parliament adopted 587 laws; 474 of these laws were proposed the government, 90 by MPs and 23 by committees. See www.mkogy.hu/adatok/38/intlap21.htm. 68 See section 13.6 below. 69 Articles 508–22 of Act CXCVII of 2017 on the amendments of Acts concerning the entering into force of Act XC of 2017 on Criminal Procedure. 70 Alberti et al, ‘Impact Assessments’ (n 54) 86. 71 Belgium 112, Finland 134 and Germany 111 working days: Nagy (n 65) 9. 72 There are exceptions, of course, such as the Criminal Code: ibid 4–6. 73 Alberti et al, ‘Impact Assessments’ (n 54) 44–45.

Legislation in Hungary  245 Table 14.1  Number of Acts 1990–2018 Number of Acts Parliament

New

Amendments

Total

1990–94

219

213

432

1994–98

264

235

499

1998–2002

273

187

460

2002–06

262

311

573

2006–10

263

326

589

2010–14

321

538

859

2014–18

221

509

730

Source: www.parlament.hu/az-orszaggyules-jogalkotasa

14.4.3.  The Post-parliamentary Process As noted above, the President of the Republic takes care of the promulgation and publication of the act.74 When doubt emerges, the President of the Republic is entitled to send the adopted act back to the Parliament (suspensive veto) or to send it for an ex ante constitutional review to the Constitutional Court.75 The decision is entirely up to them to make. The suspensive veto may not be regarded as a sole political tool to influence the decision of the Parliament, but if the task of ‘safeguarding the democratic operation of state organization’76 is taken seriously, this competence may be seen as a special contribution to both the formal and substantial quality of laws. The same is true when the preliminary constitutional review is initiated. In 2010, the new parliamentary majority were able to elect a President of the Republic who had not sent any acts to the Constitutional Court for review or to the Parliament for reconsideration. The new President of the Republic (elected in 2012 after the resignation of the previous one and re-elected later) has been active in applying the suspensive veto,77 but not the constitutional veto.78 However, the low number of initiations of ex ante constitutional review does not mean that constitutional doubts have not emerged

74 Article 6(3) FL 75 ibid art 6. 76 ibid art 9(1). 77 Between May 2012 and the end of November 2018, the President, János Áder, sent 31 acts back to the Parliament for reconsideration. For comparative purposes, László Sólyom, President between 2005 and 2010, sent back 30 acts to the Parliament. See www.parlament.hu/a-koztarsasagi-elnok-altal-az-orszaggyules-reszere-megfontolasravisszakuldott-torvenyek. Statistics does not tell us anything about which acts have been or have not been sent back to the Parliament. President Áder, for instance, signed the overtime Act despite fierce protests by the opposition in the Parliament, and he also signed the so-called Lex CEU (Act XXV of 2017 on the amendment of Act CCIV of 2011 on the higher education). See n 18 above and https://index.hu/english/2018/12/20/overtime_act_slave_ law_signed_janos_ader_president_2019_protests_general_strike/, https://www.ceu.edu/category/istandwithceu, respectively. 78 Between 2012 and the end of 2017, six preliminary constitutional norm controls have been requested. Up to the end of September 2018, no new case was initiated. It should be noted that the statistics of the Constitutional Court (https://hunconcourt.hu/statistics) do not differentiate between the three types of preliminary norm control.

246  Tímea Drinóczi regarding the contents and validity of acts before; rather, it reflects the loyalty of the presidents to the government; this however does agree with neither legislative quality nor the principle of rule of law or the division of powers. As for acts sent back to the Parliament for reconsideration, since 2012, the Parliament has not been bothered by the either genuine or politically beneficial ‘concerns’; it reconsidered only 17 acts out of 31.79

14.5.  Technics of Legislation: How Do We Draft Laws?80 The 61/2009 (XII.14.) IRM decree on drafting, with its seven parts and more than 100 articles, goes far beyond the vague and brief rules of the former IM decree. It specifies denominations and the structural parts of a draft. Laws shall have a title which contains the year of adoption, a full stop indicating ‘th’, the number of the act adopted in that specific year in consecutive numbering in Roman numbers, a full stop indicating ‘th’, the words évi (from the year of) törvény (Act), and the subject matter of the act. For instance, the Act on Legislation reads as follows: 2010. évi CXXX. törvény a jogalkotásról (Act 130th from the year 2010 on legislation; Act CXXX of 2010 on legislation). Other laws are titled just like the IRM decree above: the number of the law adopted in that specific year in consecutive numbering (61), slash, year of adoption (2009), the date of publication in brackets (XII.14 – where XII stands for the twelfth month, ie, December), the abbreviation of the issuing authority (IRM, which stands for the Ministry of Justice and Law Enforcement) and the name of the law (decree). The FL is an exception, and the decree on drafting does not apply to laws adopted in any emergency situations. According to the decree, only codes can be segmented into books. Further parts of a draft are listed as well; these are: part, chapter, sub-chapter, article (‘§’), paragraph ‘()’, point and sub-point. The smallest structural unit is the sub-point. As far as ‘part’ is concerned, using a higher-level unit is only permitted when applying the lower-level units does not provide a clear overview of the law. The Civil Code, for instance, has eight ‘books’,81 but the Act on Legislation, as not being code or very complex Act, has only ‘chapters’. The structural units are to be numbered consecutively or indicated in the Latin alphabet. The only exception is the FL, which has its own separate structure. The Foundation is signed by letters (Article A)-U)), the Freedom and Responsibility part uses Roman numbers (Article I-XXXI), while the state part employs Arabic numbers with the term ‘Article’ (Article 1–52). The Closing and Miscellaneous Provisions are indicated in Arabic numbers without the term ‘Article’ (1.-28.). A draft, according to the decree on drafting, is not allowed to contain unmarked structural units, but the FL has unmarked units both at the beginning (the National Avowal) and the end. As for the substantive logic of the draft, its text shall have the following parts: an introductory part including the scope and circumstances of the legislation, the reference to authorisation, joint legislation etc; general provisions; special provisions; and final



79 Note that the Parliament has not decided on two Acts by the time this chapter was finalised (29 December 2018). 80 T

Drinóczi, ‘Quality Drafting: The Case of Hungary’ (2010) 2 Legisprudence 157. V of 2013 on the Civil Code.

81 Act

Legislation in Hungary  247 provisions. Among the final provisions, authorisation clauses, provisions on entering into force, the abbreviation of the Act, transitional provisions, provisions referring to the adequacy to the EU laws, modifications, deregulatory provisions and provisions on nonentering into effect can be found. The above sequence cannot be changed. For example, an authorisation clause can only be in the final provisions. The decree on drafting regulates in detail the denomination, formulation and modification of the annex, which cannot have normative content. Bearing in mind the principles of clarity, economy, expressive power, adequacy and consistency, the decree on drafting requires that a draft shall be formulated according to the rules of the Hungarian language concisely and clearly in such way that its provisions are clear and unambiguous. It differentiates between flexible, which is to be applied as a main rule, and rigid references with the view to facilitating not only the application of laws, but also the future work of the draftsmen. When using flexible references, the drafter refers only to the title of the act (eg, ‘… as stipulated in the Act on legislation …’), whereas in the case of rigid references, the complete denomination of the act with a reference to the article, if needed, has to be used. General reference is applicable only if the drafter aims at referring to future laws, a wide range of laws, a range of indefinable laws or laws that are to be created under the authority of a law containing the reference. In favour of legal certainty, the decree on drafting deals with the modification, deregulation, formulation and structure of laws exclusively aiming at the modification or deregulation of laws. It does not allow for the changing of the denomination of a law or the deregulation of only the denomination of a structural item, and requires that the formulation, structure and reference system of the modifying law be identical to that of the modified law. The deregulation provisions should be formulated in one article, but they cannot be placed in one paragraph when they refer to different sources of law being at different hierarchical levels or when they come into effect at different times. With his choice, the political decision-maker, in 2009, demonstrated his commitment to quality legislation to a great extent; however, where there are no actual consequences of non-compliance with these rules, as it depends only on the personal attitude of the drafter as to whether they are kept or not.

14.6.  Implementation and Assessment of Laws82 The Acts of Legislation (1987 and 2010) provided a more or less adequate framework for both ex ante and ex post impact assessments, which were further elaborated upon by secondary legislation. Methodology and guidelines in support of an ex ante impact assessment, based on the best practices available at the time, was adopted in 2004, and a central unit for impact assessment was established in the Ministry of Justice. However, neither the quality of ex ante impact assessment nor consultation practice improved to any significant extent until the adoption of the new acts on legislation and public consultation.

82 T Drinóczi, ‘Ex Post assessment of Legislation in a Comparative Context: CEE and Balkan’ (2016) 10(1) KLRI Journal of Legislation Evaluation 127.

248  Tímea Drinóczi Pursuant to the Act on Legislation (2010), both ex ante and ex post impact assessment is required to be conducted. It also covers the issue of the regular monitoring of the legal system: when preparing new laws, monitoring activity has to be performed regarding the possible obsolete, unnecessary, non-fitting legislation in the particular field that the new law intends to address. Following the identification of such legal norms, a repealing provision has to be drafted at the end of the draft law. Ex post assessment reviews the results and outcomes (both expected and observed) of an existing law. Both ex ante and ex post impact assessments are the responsibility of the ministry or ministries associated with the specific laws. The ECOSTAT Government Feasibility Centre was also established83 by the new legal regime to assist in the preparation and implementation of impact studies. However, reports and studies were rarely made available. Later, all the tasks performed by this Centre were taken over by the Research Department of the Office for Public Administration and Justice; now it does not seem that there is a centralised unit that assists in conducting impact assessments. Up until April 2016, the decree of the minister of administration and justice on impact assessment84 and a ‘General overview on the new impact assessment system and impact assessment sheet’ were in effect and applicable. The former decree provided for a summary sheet (a six-page-long sample document) which had to be filled out in reference to the primary expected impacts of the planned regulation regarding competitiveness, administrative burden, social inclusion, fiscal effects, and effects on health and the environment, among other things. Positive and negative effects were to be explored and examined, quantitatively if possible. A unified methodology had to be applied. The impact assessment sheet was to be accompanied by documentation for all calculations included, along with the methodology and other relevant information. The ex post impact assessment appeared to be embedded in the policy cycle, largely due to the fact that the sheet required the indication of whether an ex post assessment was recommended, and if it was, the suggested methodology had to be described and the responsible unit had to be identified. If the ex post assessment was not foreseen, the justification had to be made. However, the lack of genuine ex ante assessments and their poor quality, if they were indeed conducted at all, can be observed. In addition, no ex post assessments have yet been conducted, or at least there is no available information thereof. However, even if ex ante assessment is conducted, no in-depth analysis can be found, results are rarely or only partially made available to political actors85 and they are almost never shared with the public.86 Having in mind the number of working days spent for the parliamentary debate of a bill, it is not at all surprising that the figure in the case of preparing the impact assessment sheets was 2.8 working days on average between 2011 and 2014.87 However, contrary to the progress other states have planned or achieved in this respect, this situation has

83 Ágh, Dieringer and Bönker (n 56) 20. 84 24/2011. (VIII. 4) KIM decree. 85 Ágh, Dieringer and Bönker (n 56) 21. 86 Between 2011 and 2014, a maximum of 48 per cent of laws submitted by the government had publicly available preparatory packages. There were no detailed, well founded, data-based assessment studies attached; only formal impact assessment sheets could be found. See Alberti et al, ‘Impact Assessments’ (n 54) 84; Alberti et al, ‘The Quality of Hungarian Legislation’ (n 54) 40. 87 Alberti et al, ‘Impact Assessments’ (n 54)84.

Legislation in Hungary  249 not yet improved and there are suggestions that a regression may soon be experienced. In 29 April 2016, the Minister of the Chancellery, who was at that time responsible for the coordination of governmental activity, issued a new decree (12/2016 (IV.29) MvM decree) on ex ante and ex post impact assessments. This decree is a shorter version of the previous one: it contains neither the enumeration of impacts on which ex ante assessment has to be conducted (the new summary sheet only lists fiscal, administrative and other impacts) nor a detailed description on how to fill in the impact assessment summary sheet (when it can be omitted, what happens if more sheets need to be filled in etc). As for establishing a link between ex ante and ex post assessment in order to embed this in the policy cycle, the decree is ambiguous: it requires that rules on ex ante assessment also have to be applied in the case of ex post assessment, but the summary sheet (see Table 14.2) is tragically simplified, making no reference to ex post assessment, and offers essentially little or no information whatsoever to those interested, whether in the capacity of political actors, governments agencies or stakeholders and the general public. Table 14.2  Ex ante impact assessment sheet in Hungary in 2016 Annex 1 to 12/2016 (IV.29) MvM decree Hatásvizsgálati lap [Impact assessment sheet] Előterjesztés, tervezet címe [title of the proposal, draft]: I. Költségvetési hatások [budgetary impact]: II. Adminisztratív terhek [administrative impacts]: III. Egyéb hatások [other impacts]: Budapest, év [year] hónap [month] Készítette [prepared by]: Látta [reviewd by]: Jóváhagyta [sanctioned by]:

nap [day]

This new approach erases all the preceding political efforts and results of the previous accomplishments of the public administration and opens up a more illiberal legislative model which is certainly not in line with any European trend, but which can serve shortterm political goals and the immediate implementation of new ideas.

14.7.  Teaching and Training on Legisprudence Legisprudence and legislative quality do not seem to be of chief importance to the political decision-maker, which has had an effect on the teaching of this discipline. Legisprudence does not form the essential part of any university curriculum. With the exception of a short period of time after 2000, legisprudence has not been an obligatory subject at undergraduate level; however, there are some masters programmes available on drafting.88 Nevertheless, this is not an adequate substitute for an institutionalised training system. It is thus safe to say that in Hungary, the education of draftsmen is neither elaborated nor developed, partly because there is no regulation on the qualification requirements for the draftsmen.

88 This training is available, eg, at the University of Eötvös Lóránd (drafting training) and the University of Pécs (local draftsmen training).

250  Tímea Drinóczi For those conducting impact assessments, training was organised and materials were written within the framework of the governmental programme called the Magyary Zoltán Public Administration and Development Programme. These materials are based on the previous decree on impact assessment and are still available on the government website.89 However, this training does not seem to be a permanent exercise in the ministries. Those who are involved in drafting are public servants, employed either by the government or the Parliament, but are not trained specifically to be draftsmen. Exams and training targeting those who are public servants does not focus on drafting, but deals with more general topics such as new developments in the law.

14.8.  Instead of a Conclusion When considering the quality of legislation and in legislation, the Hungarian political decision-maker shall keep in mind the wisdom of the saying ‘A kevesebb néha több’ (less is sometimes more). When thinking of impact assessments, deliberation and consultation, the wisdom of another saying can be remembered: ‘Jó munkához idő kell’ (Good things take time).

Further Reading D Deák, ‘Unorthodoxy in Legislation: The Hungarian Experience’, http://unipub.lib. uni-corvinus.hu/1601/1/SE_2014n2_Deak.pdf T Drinóczi, ‘Quality Control and Management in Legislation: A Theoretical Framework’ (2017) 1 KLRI Journal of Law and Legislation 57–86 A Jakab and Gy Gajduschek (eds), A magyar jogrendszer állapota (The Condition of the Hungarian Legal System) (MTA TK JTI, 2016), http://real.mtak.hu/48688/1/Varju_MA_ magyar_jogrendszer_allapota_2016_1_u.pdf J Kornai, ‘Hungary’s U-Turn’ (2015) 3 Society and Economy in Central and Eastern Europe



89 http://hatasvizsgalat.kormany.hu.

15 Legislation in Ireland RONAN CORMACAIN

Context The Republic of Ireland (Éire in Irish) is a parliamentary democracy. The name of the parliament is the Houses of the Oireachtas. Ireland gained independence from the UK in 1922. The island of Ireland was partitioned at this point: the Republic became a separate state, while Northern Ireland remained part of the UK. The modern Irish Constitution came into force in 1937. Ireland joined what became the EU in 1973. Historically, much Irish legislation was influenced by legislative developments in the UK, although since joining the EU, the influence of the UK has waned. Ireland has a common law system rather than a civil law one and its legal system is underpinned by the rule of law.

15.1.  Sources and Hierarchy of Laws The hierarchy of laws is as follows: 1. EU law. 2. The Constitution. 3. Primary legislation (Acts of the Oireachtas). 4. Secondary legislation (statutory instruments). 5. Case law/common law. 6. Quasi-legislation. Before joining what eventually became the EU, the Constitution was the supreme source of legal authority in Ireland, and Ireland accepted no external authority, in particular no external authority to make laws. Given that the legal order of the EU regards itself as the supreme legal authority, the Constitution had to be amended to reflect this. After authorising Ireland to join the EU, the Constitution went on to provide that: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the [EU].1



1 Article 29.4.6°. The full text of this provision also refers to the forerunners of the EU and associated institutions.

252  Ronan Cormacain This constitutional provision was supplemented by the European Communities Act 1972. Section 2 of that Act states that certain EU laws shall be binding upon the state and shall be part of the domestic law of Ireland under the conditions laid down in the treaties governing the EU. Section 3 goes on to give to the executive the power to make secondary legislation for the purposes of enabling section 2 to have full effect. Thus, if EU law is not already directly applicable or does not have direct effect, the state can make secondary legislation to make it part of Irish domestic law. So, as a matter of both EU law2 and Irish constitutional law, EU law is supreme. The Irish Supreme Court has held that the constitutional amendments were ‘an authorisation given to the State not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities’.3 In the language of the Supreme Court, joining the EU was like joining a ‘moving train’. The Constitution has been amended a number of times to reflect changes in the structure and powers of the EU. According to Byrne, ‘Article 29.4.6° has created a set of fundamental European provisions that take priority over Irish constitutional provisions’.4 Ireland is a dualist state, so in order for an international treaty to become part of Irish law, it must first be incorporated into Irish law by domestic legislation. As set out above, EU law stands slightly to one side of this. After EU law, the Constitution (Bunreacht na hÉireann) is the supreme source of legal authority in Ireland. The Constitution was enacted in 1937 and replaced the earlier 1922 Constitution. Article 15.4.1⁰ states that: ‘The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.’ Thus, the Constitution takes priority over all other domestic legislation. The Constitution contains aspirational and religious statements about the character of Ireland. Until it was amended in 1998, it also lay claim to the territory of Northern Ireland. The Constitution establishes the major organs of state and mandates how the state is to be run. As well as setting out the basic structure of the state, the Constitution provides for some fundamental rights. The courts have the power to declare legislation invalid if it is in conflict with the Constitution. The next level down in the hierarchy of laws is primary legislation. Primary legislation is enacted when acts passed by the legislative assembly (the Houses of the Oireachtas) are signed into law by the President of Ireland. Under the Constitution, ‘the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State’.5 Although the Constitution is of higher authority, there is only one Constitution, but many acts. As such, in day-to-day matters, acts are of greater importance. According to Byrne, ‘legislation accounts for large sections of the law as might be expected in an era where the state assumes the principal regulatory role in society’.6

2 Van Gend en Loos v Nederlandse Belastingenadministratie [1963] ECR 1. 3 Crotty v An Taoiseach [1987] IR 713, 767. 4 R Byrne, P McCutcheon, C Bruton and G Coffey, Byrne and McCutcheon on the Irish Legal System, 6th edn (London, Bloomsbury, 2014). 5 Article 15.2.1°. 6 Byrne et al (n 4) 4.

Legislation in Ireland  253 Beneath primary legislation, there is secondary legislation. This goes by a multitude of names: secondary legislation, subordinate legislation, delegated legislation and statutory instruments. The key point is that there is no free-standing power to make secondary legislation – the power must derive from a specific authority in a piece of primary legislation. Thus, the primary legislation will say ‘the Minister may, by regulations, do XYZ’. Then, in exercise of this power, the minister will make that secondary legislation, and only to the extent authorised by primary legislation. Although a strict reading of the Constitution may imply that only the Oireachtas can make legislation, it has long been held that the Oireachtas can delegate the power to fill in the details of the law to others.7 Secondary legislation is generally made by a minister, although occasionally by another emanation of the state. There is a much greater volume of secondary legislation than of primary legislation. For example, in 2018 there were 665 pieces of secondary legislation listed on the government’s website, whereas there were only 44 acts listed (including 2 acts amending the Constitution). The content of secondary legislation generally fills in details not mentioned in primary legislation. For example, if the primary legislation says that a particular activity may be carried out if a department grants a licence to do so, the secondary legislation may state the procedure for applying for that licence, the cost of it, the forms to be filled in etc. Secondary legislation is also used if there is technical information to be included in a law or if it is subject to rapid change. For example, lists of permitted medicines, or chemicals, or precise health and safety requirements for the workplace may be set out in secondary legislation. The penultimate source of laws is not legislative in character at all – it is case law, law made by judges in deciding individual cases before them. Ireland follows the common law system, which means that judges build up law over the centuries by deciding individual cases, and this body of decisions then forms part of the law which must be followed by future judges. Although the role of judges in applying and interpreting law remains extremely important, their role in creating law has diminished over time as the role of the Oireachtas in making law has increased. Statute law is now the greatest source of new law. Case law is subservient to it, although it is always the constitutional duty of judges to apply legislation made by the legislature. The final category of law is arguably not a ‘law’ at all – it is what is sometimes referred to as quasi-legislation. Quasi-legislation is a form of regulation, but without a formal legislative character. It comprises things like codes of conduct, ministerial guidance and government circulars. Strictly speaking, these things are not laws and cannot be enforced as such in a court. However, they have significant practical effect. For example, corporal punishment in schools was originally ‘abolished’ by a ministerial circular. This did not make it a crime for a teacher to hit a student, but there would be serious employment consequences for any teacher who did so. Quasi-legislation can emanate from the state, but also from non-state actors. For example, the Advertising Standards Authority for Ireland has codes of practice for regulating advertising. Non-state regulation of an industry can often be a precursor, or an alternative, to state regulation of that industry.



7 Pigs

Marketing Board v Donnelly [1939] IR 413.

254  Ronan Cormacain

15.1.1.  Older Forms and Sources of Law There still exist sources of law in Ireland which fall outside the taxonomy set out above. These are sources of law which pre-date the formation of the state. Although no new laws can be made from these sources, the existing laws are still valid until they have been repealed.8 The preamble to the Adaptation of Enactments Act 1922 refers to the continuation of all laws which were in force immediately before the coming into existence of the Irish State. Although these laws come from many different sources, they are all essentially historic British statutes enacted before the creation of the Irish state. These are: • • • • •

pre-Union Irish Statutes 1169–1800; statutes of England 1066–1706; statutes of Great Britain 1707–1800; statutes of the United Kingdom of Great Britain and Ireland 1801–1922; UK Local and Personal Acts 1801 to 1922.

Irish statutes are statutes made by any legislative assembly in Ireland between 1169 and 1800. The Irish Parliament was abolished in 1800. The ‘Union’ referred to above is the Acts of Union 1800, which united Great Britain with Ireland (making it the United Kingdom of Great Britain and Ireland). English statutes, pre-Union statutes and British statutes were made by the British Parliament, and all extended to and formed part of the law of Ireland. There is arguably an additional type of legislation still present in Ireland – legislation made under the power of the Royal Prerogative. This is another throwback to the time when the British Crown retained ancient powers to make laws in its own right. The best view is that no power to make legislation by Royal Prerogative survived the establishment of the modern state of Ireland.9 However, existing legislation made under this prerogative may continue to have effect. Very little of this type of legislation now survives. One final, historical quirk: for centuries, alongside the English common law system, there also subsisted Brehon law. Brehon law is an ancient form of Irish customary law, so-named after the judges who administered it. Brehon law was finally extinguished in the seventeenth century.10

15.2.  The Structure of Legislation The principal unit of an act is a section (divided, where necessary, into sub-sections). If it aids the structure of an act (for example, in a long act), sections may be grouped together into parts, chapters or other divisions. Acts may also have schedules. Schedules are like annexes and appear at the end of an act, generally containing technical information or points of detail. A schedule is still part of the act. Acts have short titles (a brief descriptive name for the act) and the year of enactment forms part of that short title – for example, the

8 Article

73 of the 1922 Constitution. v Ireland [1972] IR 241. 10 The Case of Tanistry (1608) Davis 28. 9 Byrne

Legislation in Ireland  255 Children’s Health Act 2018. Acts also have long titles, which give more detailed descriptions of what the subject matter of the act is. Primary legislation generally no longer includes a preamble (which is generally a description of the reasons leading up to the making of the act). All acts have enacting words, which make it clear that this is a law. The enacting words are now ‘Be it enacted by the Oireachtas as follows:’. Acts also have numbers (for example Number 23 of 2005), although these are not used as readily as the short title of an act. Sections (as well as other divisions of an act) have titles in the modern era. A title gives an indication of the content of the section. According to the Interpretation Act 2005, section titles, marginal notes, shoulder notes etc do not form part of an act and should not be taken into account when interpreting the meaning of a statutory provision.11 This seems a little odd, as the whole point of a section title is to give an indication of its meaning to the reader. There are many different classifications of types of secondary legislation. Section 1 of the Statutory Instruments Act 1947 defines a statutory instrument as ‘an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute’. The enabling provision will specify the form the statutory instrument will take. There is a number of such forms, including: orders, which tend to provide specific things such as commencement or establishment day orders, fees orders, orders designating certain matters and orders made by the government; regulations, which are of more general application and are usually regulatory in nature; by-laws, which are usually made by local authorities exercising subsidiary lawmaking powers provided by the enabling legislation; rules, which are generally procedural in nature, eg, rules of courts; and schemes, which often relate to superannuation. Statutory instruments are normally divided in a similar way to primary legislation, although the names given to these divisions vary depending upon the name given to the type of secondary legislation. Ireland has a modern drafting style, with legislation designed to be clear, precise and intelligible.12 It generally seeks to avoid archaic language and to use plain English techniques. Legislation is now gender-neutral. There are no absolute rules for the order in which provisions appear in legislation, but acts generally begin with preliminary or general provisions (such as the title, interpretation provisions and commencement). The main body of an act deals with the substantive provisions. The final provisions are normally miscellaneous points, for example, repeals and transitional provisions. Ireland makes use of textual amendments, so if an older law is to be changed, the newer law will make those changes by making textual amendments to the older law. If there are a great deal of amendments, the older law may instead be repealed in its entirety and re-enacted.

15.3.  The Procedure for Making Primary Legislation 15.3.1.  The Pre-enactment Phase The inspiration for a bill can come from many sources: a minister, a political party, the Law Reform Commission (see further below), a court judgment, media pressure, a civil servant, etc. 11 Section 18(g). 12 See, for example, the drafting techniques and guidelines as recommended by the tax authorities: Revenue Legislation Services, Guide to the Legislative Process (Dublin, Revenue Commissioners. 2016).

256  Ronan Cormacain Regardless of the source of inspiration, for all government legislation, the key work on the bill will be done within a government department. The policy is developed within the department by civil servants (although external experts may also be engaged). Where proposals for legislation relate to matters on which government policy has not already been laid down or where they involve a new development or a material departure from existing policy, they need first to be submitted to the government by way of a memorandum for a decision in principle of the policy at issue. There must be a regulatory impact analysis (RIA) carried out as part of this policy development process. If the proposal has constitutional significance, the department must consult with the Attorney General. Once the policy has been settled, the minister in charge of that department must present a memorandum (a general scheme of the proposed legislation) to the executive for approval. The executive is led by the Taoiseach – the Irish Prime Minister. If the executive approves the memorandum, the minister must then prepare drafting instructions and send them to the Attorney General. The proposal will then be included in the official programme for government. The procedure for all this is set out in the Cabinet Handbook (an internal book of the executive) rather than in any formal laws. Once the policy is relatively settled and the instructions are prepared, the bill will be drafted by parliamentary counsel in the Office of the Parliamentary Counsel to the Government. Since 2011, there has been a formal procedure for pre-legislative scrutiny by committees of the Houses of the Oireachtas. Once the executive has approved the general scheme, it is sent to the relevant Oireachtas committee for consideration. This gives a chance for the committee to make recommendations on the policy before an actual bill is introduced. According to empirical research carried out by Martin, recommendations made at this stage do have an impact, and the bill as introduced regularly reflects the content of these recommendations.13 In the past, there where occasionally two additional stages, where the government would introduce a Green Paper or a White Paper setting out general proposals or specific details for a bill. These are now quite rare, although sometimes the government will introduce new policy proposals via these mechanisms.

15.3.2.  The Enactment/Parliamentary Phase Acts are made by the Oireachtas. The Oireachtas consists of the President and the two houses. The houses are Dáil Éireann and Seanad Éireann. The Dáil has primacy and its members are elected by the public. The Seanad is the second chamber and its members are either elected or nominated by particular interest groups or the Taoiseach. The President is head of state and the office of President is a non-political role. An act becomes law when it is passed by both houses and signed by the President. When legislation is introduced, it is referred to as a bill. When it is enacted, it becomes an act. The process is managed within the Houses of the Oireachtas by the Bills Office.

13 Martin, S The Impact of Pre-legislative Scrutiny on Legislative and Policy Outcomes (Dublin, Oireachtas Library and Research Service, 2017).

Legislation in Ireland  257 A Bill must pass through five formal stages in each House of the Oireachtas and be signed into law by the President before it is enacted. The procedure for making acts is set out in the Constitution and standing orders of the Houses of the Oireachtas.14 Bills normally begin in the Dáil, although it is possible for them to begin in the Seanad (except for money bills and bills amending the Constitution). The first stage is the initiation of the bill.15 Government ministers simply introduce a bill and there is no vote. In the second stage, there is a debate on the general principles of the bill.16 The bill must be voted through to reach the next stage. The third stage is the Committee Stage.17 This stage is normally held in a committee of the Dáil, although it is possible for the Dáil as a whole to debate it. During this stage, there is a detailed, section-by-section consideration of the bill. Amendments can be made during the Committee Stage. The fourth stage is the Report Stage,18 when amendments to the bill made by the committee are considered by the Dáil. If no amendments were made during the Committee Stage, the bill can progress straight through to the fifth stage, otherwise amendments can be proposed to the amendments agreed at the Committee Stage. If fresh amendments are proposed, the bill moves back to the Committee Stage. The fifth stage is the Final Stage.19 No amendments are made during this stage; it is simply a vote to pass or not pass the bill. After passing the fifth stage, the bill will then be sent to the other house, and the process will begin again following the same general procedure. That other house may propose its own amendments, in which case the bill will come back to the first house for those amendments to be voted on. The process continues until the bill passes the fifth stage in both houses. However, the Seanad cannot stop a bill, only delay it. The Dáil can ultimately pass a bill even if the Seanad votes against it. Article 24 of the Constitution allows for the abridgement of normal time limits for the various stages in cases of urgency. After the bill has passed both houses, it is signed by the President and becomes law.20 The act must then be promulgated by a notice of its enactment being published in the Irish State Gazette (Iris Oifigiúil). The President has powers to refuse to sign a bill. The President can refer it to the Supreme Court if there is a question over its constitutionality.21 This is an important pre-enactment check. The President has other powers to refuse to sign a bill if it contains a provision of national importance and there has been a petition from the Seanad and the Dáil.22 Bills are rarely referred to the Supreme Court; for an example, see Re Matrimonial Home Bill.23

14 Standing Orders of Dáil Éireann Relative to Public Business and Standing Orders of Seanad Éireann Relative to Public Business. 15 Standing Order 147 (all references are to standing orders of the Dáil). 16 Standing Order 148. 17 Standing Order 149. 18 Standing Order 156. 19 Standing Order 161. 20 Article 25 of the Constitution. 21 ibid art 26. 22 ibid art 27. 23 Re Matrimonial Home Bill [1994] 1 IR 305. See the commentary on this case in G Hogan, ‘Constitutional Law: The Matrimonial Homes Bill Reference’ (1994) 16 Dublin University Law Journal 175.

258  Ronan Cormacain An act can provide that it does not come into force straight away when it is signed by the President. It may instead specify a different date on the face of the bill or it may provide that it comes into force on a date specified by a minister. The minister then has the power to make what is called a ‘commencement order’ to bring the act into force on a specified day. A commencement order is a particular type of secondary legislation. According to Skeffington: ‘While long established, the administrative practice of delegating the power to commence statutory provisions to (for the most part) ministers has become increasingly common in Ireland over recent decades.’24 This practice could lead to abuse, with ministers overstepping the legislature by simply refusing to commence an act passed by the legislature. Skeffington recommends remedying this, perhaps by means of rules requiring a minister to report to the Houses of the Oireachtas on uncommenced legislation or greater scrutiny by the legislature of commencement orders. There are slightly different procedures for other types of bill. First, there are private members’ bills. Most bills are initiated by the government and introduced into the Houses of the Oireachtas by a minister. However, it is possible for a bill to be introduced by a nonminister or by a member of the Opposition. These are referred to as private members’ bills. A member must seek leave of the Houses of the Oireachtas to introduce a private members’ bill, which means there must be a vote on whether or not to accept it at the first stage. Previously, there was little practical support for these bills and the government’s stranglehold on parliamentary time meant that they were rarely successful. Byrne referred to the ‘paucity of private members’ Bills which have been enacted’.25 However, in 2018, the Office of Parliamentary Legal Advisers was established by virtue of the Houses of the Oireachtas Commission (Amendment) Act 2018. This is part of the Houses of the Oireachtas and provides legal and legislative drafting support to members on private members’ bill. This support has greatly enhanced the chances of success for this type of legislation. Second, there are consolidation bills.26 A consolidation bill consolidates all existing statute law on a subject. This does not involved any substantive change to the law, merely taking all the existing acts on a subject from different sources and combining them into a single act. There is a shorter and simpler procedure for consolidation bills, with much less chance of being able to amend them. The Attorney General (the chief government law officer) must certify that it is a consolidation bill, the long title of the bill must state that it is a consolidation bill, and the bill must be accompanied by a memorandum setting out which provisions it is repealing and where those provisions now appear in the bill. Third, there are private bills. Despite the similarity in name, these are completely different from private members’ bills. Private bills only relate to a particular person, place or entity as the subject matter of the bill. For example, a private bill may regulate a particular harbour, railway or university, or a particular person’s property. The vast majority of legislation is public, meaning that it relates to the population as a whole. Private bills are subject to a completely different procedure and separate standing orders. The bill must be introduced into the Seanad by a promoter, who is generally the person affected by the bill.



24 P

Skeffington, ‘A Creeping Incursion into the Legislature’s Law-Making Domain?’ (2018) Irish Jurist 93, 95. et al (n 4) 581. 26 Standing Orders 167–76. 25 Byrne

Legislation in Ireland  259 The procedure is quasi-judicial in nature as it is closer to a court making a decision on an individual’s rights rather than passing a law that affects everyone. When bills are introduced, they are normally accompanied by an explanatory memorandum or an explanatory and financial memorandum. According to Byrne, the purpose of this memorandum is to briefly explain the reasons behind the making of the legislation.27 However, this does not seem to be a legal obligation, but rather a matter of practice and convention. The only obligation in standing orders with regard to an explanatory memorandum is in Standing Order 164. This is a fairly specific standing order which states that if a bill is substantially amended at the Committee or Report Stage, there is a discretion to require the member in charge of the bill to provide a revised explanatory memorandum. Aside from this, there is no requirement to have an explanatory memorandum. Although the memorandum is meant to assist parliamentarians, in many cases it simply regurgitates the terms of the bill. A government with a majority in the Houses of the Oireachtas will generally be able to win all its votes, so it is less likely to seek to persuade the opposition of the merits of a particular bill. There will always be a tension between the political need to secure a ‘win’ by passing legislation and the general desire to enact high-quality legislation.

15.3.3  The Post-enactment Phase Since June 2016, there has been a formal obligation to report to the Dáil on the implementation of a bill after it has been enacted. Standing Order 164A of the Dáil states that: Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library.

This supplements the government’s RIA guidelines, which require that RIA should also contain review mechanisms for assessing the extent to which legislation achieves its intended objectives. These guidelines specifically state that ‘provision for review is particularly important given that the analysis within the RIA will be based on certain assumptions which may not hold in reality’.28

15.4.  The Procedure for Making Secondary Legislation Procedurally, there is much less involved in the making of secondary legislation. Secondary legislation will generally be prepared and drafted in the department of the minister who has the power to make it. Those officials charged with drafting it may or may not have experience

27 Byrne et al (n 4) 583. 28 Revised RIA Guidelines: How to Conduct a Regulatory Impact Analysis (Dublin, Department of the Taoiseach, 2009), available at: https://publicspendingcode.per.gov.ie/wp-content/uploads/2012/07/Revised_RIA_Guidelines_ June_20091.pdf, 34.

260  Ronan Cormacain in legislative drafting. The Office of Parliamentary Counsel to the Government has produced guidance for those drafting secondary legislation entitled ‘Statutory Instruments Drafting Checklist and Guidelines’. There is limited parliamentary oversight of secondary legislation. Most bills which authorise a minister to enact secondary legislation will contain a ‘negative laying provision’. This requires the statutory instrument to be laid before the Houses of the Oireachtas, with the Oireachtas having 21 sitting days in which it can annul it. Rarely, there will be a ‘positive laying provision’, which requires the instrument to be laid, and not taking effect until it is positively approved by a resolution of the Oireachtas. For a small number of less important statutory instruments, there is no requirement for it to be laid at all. Annulment is a blunt tool – either accept the whole thing or annul the whole thing. It is a sledgehammer for destroying, not a scalpel for correcting. It is rare for the Oireachtas to annul (or refuse to enact) a statutory instrument. There is no committee of the Houses of the Oireachtas with sole responsibility for the oversight of secondary legislation.

15.5.  Citizens’ Assemblies Ireland has recently experimented with deliberative democracy, first in the Constitutional Convention (established in 2012) and then the Citizens’ Assembly (established in 2016). According to Elkink, these were amongst the first times in the world that this type of deliberative democracy resulted in a referendum.29 The Convention and then the Assembly were both established by a resolution of the Oireachtas to provide advice on thorny constitutional and moral problems such as electoral reform, same-sex marriage, abortion rights and climate change. Both the Convention and the Assembly consisted of a membership made up ordinary citizens appointed by random selection. In the case of the Constitutional Convention, there were also some politicians nominated as members. The selection of ordinary citizens was necessary in order to maintain a balance of age, regional background and gender. The citizens outnumbered the politicians. They met over a period of months to hear presentations and arguments on these issues. The Convention and the Assembly then discussed the issues themselves, before coming up with final recommendations. These recommendations were then passed on to a committee of the Oireachtas. Ultimately these led to two referenda to change the Constitution. Both referenda were successful and the Constitution was amended to permit same-sex marriage and to remove the near-absolute prohibition on abortion. The Convention and the Assembly generated a substantial amount of interest and were seen as highly effective ways of stimulating public debate in a non-confrontational manner. Contrary to expectations at the start, the detailed discussions resulted in the ensuing referenda campaigns being less polarising and more involved.

29 J Elkink, D Farrell et al, ‘Understanding the 2015 Marriage Referendum in Ireland: Constitutional Convention, Campaign and Conservative Ireland’ (2017) 32 Irish Political Studies 361.

Legislation in Ireland  261

15.6.  Drafting of Legislation by the Office of Parliamentary Counsel to the Government All primary legislation in Ireland is drafted by the Office of Parliamentary Counsel to the Government.30 This is part of the Attorney General’s office and takes its authority from the Ministries and Secretaries Act 1924.31 The Office is also responsible for drafting or settling the drafts of secondary legislation, government amendments to bills as they pass through the Houses of the Oireachtas, advice on the legislative process to government etc. According to the Office: ‘The function of Parliamentary Counsel is to transpose the policy of the Department into a draft Bill which is expressed in clear and precise terms.’32 Secondary legislation is normally drafted within departments, but if the secondary legislation amends primary legislation or is considered particularly important, such as government orders and commencement orders, it will be drafted by the Office. The Office also exercises a supervisory role over some pieces of secondary legislation. The Office is led by the Chief Parliamentary Counsel to the Government. Parliamentary counsel (also known as legislative drafters) are government lawyers who are trained in the discipline of drafting legislation. A prerequisite for appointment as a drafter is a professional legal qualification to practise law in Ireland (ie, a barrister or solicitor) with experience as a professional lawyer. Training is on the job, with attendance at external training events related to legislation. The Office of Parliamentary Counsel is a central office which services all government departments. In this regard, it follows the British model of a single, centralised drafting office for the drafting of all primary legislation. There is a clear separation between the policy experts in the department who develop the policy and the parliamentary counsel who turn that policy into law. This recognises the different expertise required for the making of law: the people who know the subject matter of the law and the people who are experts in legisprudence. This is a strength of the Irish system. The separation of the two functions provides greater independence and critical analysis of the legislative proposals. The role of the drafter is not simply to write out the policy in legal language; it is to counsel or advise on all matters relating to the legislation and the legislative process. The office has an internal drafting manual setting out guidance on the drafting of legislation. The Attorney General and the Chief Parliamentary Counsel are members of the Government Legislation Committee. The purpose of the Committee is to fix legislative priorities and oversee the implementation of the government’s legislative programme. The Committee is chaired by the government’s chief whip (the politician in charge of marshalling members of the government in the Houses of the Oireachtas). The Committee issues a press release at the commencement of each session of the Dáil setting out the legislative priorities for that session.

30 See Kieran Mooney, ‘The Work of the Office of the Parliamentary Counsel to the Government in Ireland’ (2001) 22 Statute Law Review 133. 31 See section 6 and the 9th Part of the Schedule. 32 Website of the Attorney General: www.attorneygeneral.ie/pc/pc_do.html.

262  Ronan Cormacain

15.7.  Better Regulation Ireland has a Better Regulation agenda. The government launched a White Paper on Better Regulation entitled Regulating Better in 2004. The White Paper sets out six principles of Better Regulation: necessity, effectiveness, proportionality, transparency, accountability and consistency. According to the Department of Business, Enterprise and Innovation,33 this is translated into the following 11 activities: 1. Making ‘better use of evidence-based policy-making’ through ‘Regulatory Impact Analysis (RIA)’. 2. Conducting ‘systematic reviews of the regulation of key areas and sectors’. 3. A programme of ‘Statute Law Revision’. 4. Improvements to the ‘procedures for appealing regulatory decisions’. 5. Monitoring ‘the cumulative burden of compliance on business and SMEs’. 6. Publishing ‘explanatory guides alongside primary legislation with significant impacts’. 7. Establishing ‘norms and standards for consultation processes’. 8. Coordinating ‘sectoral regulators’. 9. Requiring departments ‘to streamline service delivery and administrative processes’. 10. Promoting ‘training and awareness-raising of policy analysis skills’. 11. Improving the coherence of legislation through revision, restatement and repeal’. These activities are spread throughout different government departments. For example, there is a Better Regulation Unit, which is charged with implementing activity 9. The government has also produced a guide on how to carry out RIA.34 According to this guide: Regulatory Impact Analysis is a tool used for the structured exploration of different options to address particular policy issues. It is used where one or more of these options is new regulation or a regulatory change and facilitates the active consideration of alternatives to regulation or lighter forms of regulation.35

RIA should be carried out for all primary legislation (with a few minor exceptions), for EU directives and regulations (whilst they are in the process of being made in the EU), for the transposition of EU legislation in Ireland and for ‘significant’ pieces of secondary legislation. The guide also sets out a template for how an RIA should look. The RIA must be completed before the memorandum is sent from the department to the executive requesting permission to introduce a new bill, and the RIA must be summarised in that memorandum. RIA should be carried out as early as possible. RIAs for all primary legislation are published online (on the department’s website) alongside the draft bill. However, this information does not appear on the website of the Houses of the Oireachtas when the bill is introduced there. All these requirements are the government’s internal requirements, as set out in its guidelines; they are not legal obligations.

33 https://dbei.gov.ie/en/What-We-Do/Business-Sectoral-Initiatives/Reducing-Administrative-Burdens/ Better-Regulation. 34 Revised RIA Guidelines (n 28). 35 ibid 3.

Legislation in Ireland  263 The Organisation for Economic Co-operation and Development (OECD) carried out an investigation of the Better Regulation agenda in Ireland in 2010.36 This was a largely positive review which stated that the policies and commitments of the government were good. However, there were a number of criticisms. These were that the departments had not fully bought into the ideas of better regulation, that although the standards were good, they were not always enforced and that the quality of RIA was not systematically checked. One of the conclusions was that ‘the compulsory nature of the process [RIA] remains something of a formality unless there are real sanctions, and perhaps a statutory requirement to carry out RIAs’.37 In its 2018 report, the OECD commented favourably on Ireland’s progress on Better Regulation, but observed that the requirement for consultation on legislation did not yet operate on a systematic basis, nor was there a central oversight body for monitoring the quality of RIA implementation.38

15.8.  Law Reform Ireland has a Law Reform Commission, established under the Law Reform Commission Act 1975. The Commission is an independent body paid for by the state. Its function is to keep the law under review with a view to reforming it and formulating proposals for law reform.39 Reform is given a broad meaning – ‘in relation to the law or a branch of the law, its development, its codification (including in particular its simplification and modernisation) and the revision and consolidation of statute law’.40 In introducing the 1975 Act, the Attorney General said that ‘the commission is to be independent in the proposals which it formulates but such independence will not preclude close liaison with the Government in this field of law reform’.41 The Commission formulates proposals for law reform and transmits these proposals to the government. These proposals can be on technical amendments to keep the law up to date, modernising the statute book by removing unnecessary legislation and also proposing new laws on important social areas. According to the Commission, 70 per cent of its proposals have influenced the enactment of legislation, which is a good measure of its success.

15.9.  Access to Legislation Notice of the making of all primary legislation must be published in the Irish State Gazette when it is made. Most secondary legislation will also be published in the Gazette.42

36 OECD, Better Regulation in Europe: Ireland 2010 (Paris, OECD Publishing, 2010). 37 ibid 22. 38 OECD Regulatory Policy Outlook 2018. 39 Law Reform Commission Act 1975, s 4. 40 ibid s 1. 41 Dáil Éireann Debate, Tuesday 4 February 1975, Law Reform Commission Bill 1975, Second Stage, available at https://www.oireachtas.ie/en/debates/debate/dail/1975-02-04/30. 42 The Statutory Instruments Act 1947 specifies when this is not necessary.

264  Ronan Cormacain All legislation is also published online by the Office of the Attorney General, in what is known as the electronic Irish Statute Book.43 Legislation is published in the language or languages (both English and Irish) in which it was enacted. The Law Reform Commission has taken the view that its role includes the function of keeping an up-to-date statute book online. To this end, it publishes a selection of primary legislation as amended known as revised acts, online. This means that where a revised act is available, the user can look at what the law is on the date when it was last updated, as it has been amended by all legislation made since the original date of enactment. If an old act is amended by a new act, the revised act reflects all these amendments. The revised acts also contain much contextually important information, such as editorial annotations, links to other statutes, cross-references and statutory instruments made under primary legislation other relevant legislation. This kind of information can be helpful to users of the statute book. In fact, with the practice of textual amendments to older legislation instead of repealing and re-enacting it, this function is critical. There is scope for improvement in online access to legislation. First, although some revised acts are provided, not all legislation is available in this way. Second, although the original version and the revised acts are available, it is not possible to access a copy of the legislation as it stands at a particular point in time.44 Finally, although there are notes on how secondary legislation has been amended, it is not immediately easy to find out what those actual amendments are without some searching. Having said that, it is still a valuable system, with a great deal of useful information linked to the legislation.

15.10.  Joint (Ireland/Northern Ireland) Legislation As mentioned at the outset, the island of Ireland was partitioned in 1922, with Northern Ireland remaining part of the UK. Partition was contested and for many years there was violence and social disorder in Northern Ireland. Ireland maintained a territorial claim to Northern Ireland. In 1998, the Good Friday Agreement was made, which largely brought peace to Northern Ireland and improved relations between Northern Ireland, the Republic of Ireland and the UK as a whole. The Irish Constitution was amended to remove the territorial claim to Northern Ireland. One geographical quirk of all this should be mentioned. For many years, there was seen to be the need to cooperate on some cross-border matters. One of the outcomes of this was what could be called ‘joint legislation’. This is legislation enacted, on either side of the border, in practically identical terms. This is a way to cooperate without infringing the sovereignty of either jurisdiction. The most recent example is legislation on the coastal waters of Lough Foyle and Carlingford Lough. These are areas of the sea which are shared by both Northern Ireland and the Republic of Ireland. In Northern Ireland, the Foyle and Carlingford Fisheries (Northern Ireland) Order 2007 was enacted and in the Republic of Ireland, the Foyle and

43 www.irishstatutebook.ie. 44 For a description of the different ways of organising a statute law database, see R Cormacain, ‘Have the Renton Committee’s Recommendations on Electronic Access to Legislation Been Fulfilled?’ (2013) 19(3) Web Journal of Current Legal Issues.

Legislation in Ireland  265 Carlingford Fisheries Act 2007 was enacted. On practically all substantive points, the provisions in both jurisdictions are identical. This was the result of a deliberate policy decision taken by governments in both jurisdictions. The Office of Parliamentary Counsel to the Government in Ireland worked directly with the Office of Legislative Counsel in Northern Ireland to ensure that both statutes were the same in form as well as in substance. This is a rather unusual way to make legislation, but the exigencies of the situation demanded it and the government lawyers on both sides delivered it.

15.11.  Training in Legislation and Legislative Drafting King’s Inns offers the only training course in Ireland specifically focused on legislation. King’s Inns is a long-established school of law and a legal institute for the training of barristers (in Ireland, professional lawyers are either barristers or solicitors). The course is entitled the Advanced Diploma in Legislative Drafting and is open to lawyers, legal graduates and legislative drafters. The course is kept deliberately small (approximately 16–18 students a year). The course is popular among civil servants working in the field of legislative drafting within government departments. The course is a part-time, 20-week course. It covers key points on legislative drafting, public law considerations in drafting, legislative processes and statutory interpretation. The course is more practical (teaching participants how to draft legislation) than theoretical and is partly taught by current or former government legislative drafters. The Irish tax authorities have offered formal support for this diploma.45 All university law schools in Ireland offer training in legislation as part of a basic introduction to law or to the Irish legal system. Aside from the course at King’s Inns, there are no courses specifically focused on legislation or legisprudence. This is the standard approach in the common law world, where the focus is generally on case law as the most important source of law. This approach does seem archaic when one considers that most law is now statute law. This blind-spot when it comes to legislation is common globally.

Further Reading R Byrne, P McCutcheon, C Bruton and G Coffey, Byrne and McCutcheon on the Irish Legal System, 6th edn (London, Bloomsbury, 2014) Cabinet Office, Cabinet Handbook (Dublin, Department of the Taoiseach, 2006) D Dodd, Statutory Interpretation in Ireland (London, Tottel Publishing, 2008) E Donelan, ‘Law Commission of Ireland: Implementation and Independence of Law Reform Programs’ (2019) European Journal of Law Reform (forthcoming) D Farrell, J Suiter J and C Harris, ‘Systematizing Constitutional Deliberation: The 2016–18 Citizens’ Assembly in Ireland’ (2018) 34 Irish Political Studies 113 S Martin, The Impact of Pre-legislative Scrutiny on Legislative and Policy Outcomes (Dublin, Oireachtas Library and Research Service, 2017)



45 Revenue

Legislation Services (n 12) 41.

266  Ronan Cormacain K Mooney, ‘The Work of the Office of the Parliamentary Counsel to the Government in Ireland’ (2001) 22 Statute Law Review 133 OECD, Better Regulation in Europe: Ireland 2010 (Paris, OECD Publishing, 2010) Revenue Legislation Services, Guide to the Legislative Process (Dublin, Revenue Commissioners, 2016) Revised RIA Guidelines: How to Conduct a Regulatory Impact Analysis (Dublin, Department of the Taoiseach, 2009). Available at: https://govacc.per.gov.ie/wp-content/uploads/ Revised_RIA_Guidelines_June_2009.pdf

16 Legislation in Italy MARIA DE BENEDETTO

Context In the Italian legal system, the legislative function is exercised collectively by the two Houses of Parliament. However, the government is not only responsible for secondary legislation, but also has a relevant role in the whole primary law-making process, a role that has increased over time. Ever more frequently, legislation has consisted of decree laws and legislative decrees instead of ordinary parliamentary legislation; moreover, the government’s legislative initiative has a much greater chance of success and of speed of approval than other kind of initiatives (for instance, those relating to Members of Parliament or citizens). In the Italian ‘factory of laws’, legislation is also adopted by other levels of government (as regions), but regulation adopted by independent agencies (IAs) is also of increasing importance (even though it is not considered to completely fit into the idea of legislation). A crisis of confidence in legislation currently characterises the Italian context, due to legislative inflation, no maintenance of legislation and bad implementation at the administrative level, which have produced ‘perverse effects’. Moreover, Better Regulation tools (such as regulatory impact analysis) are only rarely and formally used.

16.1. Introduction Italy has its own tradition in theory of legislation. Suffice it to recall Filangieri’s Science of Legislation,1 which in the same era as Bentham’s works gave a reasoned and structured contribution on ‘good’ laws by advocating a deep understanding of the ‘great machine of legislation’.2 Moreover, the idea of formal and substantive quality of legislation was also the subject of intense academic scrutiny much later. In the 1950s and 1960s, the legal journal Il diritto dell’economia published a large number of articles and contributions from prominent scholars, academics and practitioners on the ‘foundation of a science of legislation’;3 1 G Filangieri, La scienza della legislazione (1780–1785). Benjamin Constant, Comento sulla scienza della legislazione (Rome, IPZS, 1984). 2 ibid 27: ‘Noi cominceremo dunque a scomporre la gran macchina della legislazione.’ 3 M Longo, ‘Per la fondazione di una “scienza della legislazione”’ [1960] Il diritto dell’economia 590.

268  Maria de Benedetto among this small but highly specialised community, there was a shared, sometimes amazing clarity on the urgent need to improve the quality of legislation as well as on law-making, which was intended to be ‘probably the most important’ public service.4 On the other hand, Italian practice in terms of legislation has not had a strong and structured tradition, and the public debate on this topic has not made good progress since then. Despite a certain number of contributions from Italian academics and despite sometimes excellent drafters operating in the Parliament, and a few but excellent training institutions in matters of legislation, a serious gap between theory and practice characterises the Italian experience and constitutes the key to understanding it.

16.2.  Defining Legislation in Italy Legislation in Italy is intended to be understood, according to the prevailing and most prominent opinions of scholars and academics, ‘in a broader sense’, ie, including ­regulation. It therefore covers both ‘primary and secondary legislation’:5 ‘the main written sources of domestic law [in Italy] are: i) the Constitution; ii) the primary sources of law; and iii) regulations’.6 There are three types of primary sources of law in Italy: ordinary laws, decree laws and legislative decrees. First of all, there is no doubt that legislation means statute law enacted by Parliament adopted following a procedure completely developed within Parliament (Articles 70 et seq of the Italian Constitution (IC)), which is defined as ordinary laws. However, primary legislation also means sources of law enacted together by the Parliament and the government: decree laws (Article 77 IC)7 adopted by the government ‘in case of necessity and urgency’ and later converted into law by the Parliament; and legislative decrees (Article 76 IC)8

4 ibid: ‘fabbricare leggi è diventato come un servizio pubblico, forse il maggiore dei servizi’. Articles and contributions highlighted the importance of evaluation in economic legislation (ibid 596); the need for a statistical gathering of evidence (ibid 598); the indispensable analysis of the normative context (ibid 590); the need to regulate interests which lobby legislative processes (ibid 602); the opportunity to distinguish technical decisions from political decisions in legislative procedures (ibid 592 – see also C Mortati, ‘Perplessità e riserve in merito alla fondazione di una “scienza della legislazione”’ [1960] Il diritto dell’economia 829)); the necessity to consider the zero option and to resort to legislation as a residual tool (AM Sandulli, ‘A proposito della proposta fondazione di una “scienza della legislazione”. Conoscere per legiferare’ [1960] Il diritto dell’economia 977 – see also F Vassalli, ‘La missione del giurista nell’elaborazione delle leggi’ in Scritti giuridici in onore di Francesco Carnelutti, vol I (Padua, Cedam, 1950) 496 and R Lucifredi, ‘Metodi pratici per preparare buone leggi e favorirne la migliore applicazione’ [1955] La tecnica dell’organizzazione nelle pubbliche amministrazioni 8); and the unavoidable interdisciplinarity of law-making (Sandulli, ‘A proposito della proposta fondazione di una “scienza della legislazione”’, 978). 5 U Karpen, ‘Introduction’ in U Karpen and H Xanthaki (eds), Legislation and Legisprudence in Europe: A Comprehensive Guide (Oxford, Hart Publishing, 2017) 2. 6 OECD, Better Regulation in Europe – Italy (Paris, OECD Publishing, 2013) 70. 7 An English translation of the Italian Constitution is available on the Italian Presidency of the Republic website, https://www.quirinale.it/allegati_statici/costituzione/costituzione_inglese.pdf. See art 77 (decree law): ‘When in extraordinary cases of necessity and urgency the Government adopts provisional measures having the force of law, it must on the same day present said measures for confirmation to the Houses which, even if dissolved, shall be summoned especially for this purpose and shall convene within five days. The decrees lose effect from their inception if they are not confirmed within sixty days from their publication.’ 8 ibid art 76 (legislative decree): ‘The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified purposes.’

Legislation in Italy  269 when the Parliament delegates the government to adopt a decree by a given deadline, according to the principles and criteria indicated in the delegation law. The relevance of the government in the whole primary law-making process has increased over time. This is true for quantitative reasons. Ever more frequently, legislation has consisted of decree laws and legislative decrees rather than ordinary parliamentary legislation. For instance, during the current Legislature XVIII, 19 laws have been approved by the Italian Parliament (of which 12 are conversions of decree laws), while 15 new decree laws and 37 legislative decrees have been adopted by the government.9 The phenomenon also has a more qualitative aspect: even in the case of legislation enacted as the result of a fully parliamentary procedure, government initiative in Italy has a much higher chance of success and of speed of approval.10 In other words, the Italian government has become a sort of ‘Lord’ of legislation,11 in a process not dissimilar to that of other governments all over the world.12 Furthermore, legislation in Italy has an ever more frequent multi-level character. EU legislation is sometimes directly binding and applicable in Member State legal systems. In any case, it exerts a strong influence on the legislative agenda and on the content of a relevant part of national legislation, especially in relation to legislative decrees which transpose and implement European directives. Legislation is also adopted by other levels of government: for instance, Italian regions adopt statutory laws in matters in which they have competences, according to the provisions of the Constitution.13 Second, the broad notion of legislation covers governmental non-primary regulation. From the perspective of sectors of regulation (communication, health, employment and so on), legislation means sectorial rules ‘as a whole’, whatever their nature (primary or secondary legislation). However, within the wider framework of secondary legislation, there are strict government regulations and ministerial regulations, according to Article 17 of Law n 400/1988.14 More complex reasoning relates to regulation adopted by independent agencies (IAs)15 which is not considered to completely fit into the idea of legislation. Legislation is traditionally a product of majoritarian institutions, while IAs are non-majoritarian bodies; 9 Camera dei Deputati, Servizio Studi, XVIII legislatura, La produzione normativa: cifre e caratteristiche, 16 dicembre 2018, https://temi.camera.it/leg18/temi/tl18_la_produzione_normativa_nella_xvii_legislatura.html. 10 Camera dei Deputati, Dati e tendenze della legislazione statale nella XVI e nella XVII Legislatura, Estratto dal Rapporto sulla legislazione 2017–2018, n 7, 6 June 2018, 18. 11 M Cartabia, ‘Il Governo ‘Signore delle fonti’?’ in M Cartabia, E Lamarque, P Tanzarella (eds), Gli atti normativi del Governo tra Corte costituzionale e giudici, atti del convegno annuale dell’Associazione ‘Gruppo di Pisa’, Università degli Studi di Milano Bicocca, 10-11 giugno 2011 [Torino, Giappichelli, 2011] IX. 12 Camera dei Deputati (n 10) 21. 13 Article 117 IC: ‘Legislative powers shall be vested in the State and the Regions … Concurring legislation applies to the following subject matters … The Regions have legislative powers in all subject matters that are not expressly covered by State legislation.’ 14 Law 23 agosto 1988, n 400, Disciplina dell’attività di Governo e ordinamento della Presidenza del Consiglio dei Ministri. 15 Independent (regulatory) agencies (or independent authorities) are specialised and expert public bodies which operate in many legal systems alongside majoritarian institutions; see Mark Thatcher, ‘Delegation to Independent Regulatory Agencies: Pressures, Functions and Contextual Mediation’ (2002) 25(10 West European Politics 125: ‘The creation, design and consequences of independent regulatory agencies represent a classic example of delegation to non-majoritarian institutions. They are created by legislation; hence elected officials are their principals. They are organisationally separate from governments and headed by unelected officials. They are given powers over regulation, but are also subject to controls, inter alia by elected politicians, both in the executive and legislature.’

270  Maria de Benedetto legislation is expected to be general and abstract, while IA regulation is adopted for specific categories of enterprise; legislation is produced by typical sources of law mentioned in the Constitution, while IA regulation has a mere legislative basis and can also take the form of soft regulation. However, the two notions are undoubtedly related and their respective boundaries in Italy are sometimes ambiguous: regulation when adopted by the government is definitely considered to be legislation in a broad sense; ‘quality of regulation’ and ‘quality of legislation’ are very often used in an interchangeable way.16 Finally, rules adopted by IA affect (directly or indirectly) citizens, administrations and enterprises in the same way as legislation does. Legislation (when characterised by a regulatory content) and regulation (government as well as IA regulation) definitely share the problem of their quality – in other words, the problem of making good rules17 that are clear, consistent, understandable and work well.18

16.3.  Organisation, Procedures and Management of Legislation Italy is a parliamentary republic. The Italian Parliament is made up of two Houses: the Chamber of Deputies and the Senate of the Republic. The Italian Constitution establishes that the legislative function is exercised collectively by both Houses of Parliament (Article 70 IC). As a consequence, a bill must be approved by both the Chamber of Deputies and the Senate of the Republic. The initiative in the legislative process (iter legislativo) belongs to the government, to each Member of Parliament, citizens (popular initiatives require the signatures at least of 50,000 voters) (Article 71 IC), as well as the National Council of Economy and Labour (CNEL – Article 99.3 IC) and the Regional Councils (Article 121.2 IC). However, ‘while not having the monopoly of legislative initiative, in practice the government has the main responsibility for initiating the legislative and regulatory process which is broadly outlined … in a Directive of 2009’.19 A draft bill is submitted by the proposing ministry to the Department of Legal and Legislative Affairs (DAGL).20 The DAGL was ‘established in 1988 as part of the Presidency of the Council of Ministers [and is] primarily responsible for the planning and preparation (istruttoria) of the legislative proposals’21 and solicits 16 For instance, the Italian government’s annual Report on the Implementation of the Regulatory Impact Analysis (required by art 14.X of the 2005 Simplification Law) analyses state and regional legislation as well as regulation from IAs. 17 Rules are part of legislation in a strict sense, but they are also elements of regulation; see C Coglianese, Measuring Regulatory Performance. Evaluating the Impact of Regulation and Regulatory Policy (OECD Expert Paper No 1, 2012) 8. Rules ‘can express a regulatory content in any other formal ‘box’ (government regulation, guidelines, manuals of instructions, regulation adopted by independent agencies etc). A rule is such when it imposes obligations (ie, a command) affecting the activities and the organisation of its addressees; a rule is such because it is linked to its consequences (independently from its possible ‘box’) expressing a regulatory content’. See M De Benedetto, ‘Effective Law from a Regulatory and Administrative Law Perspective’ (2018) 9 European Journal of Risk Regulation 391; and M De Benedetto, M Martelli and N Rangone, La qualità delle regole (Bologna, Il Mulino, 2011) 12–13. 18 See R Baldwin, Rules and Government (Oxford, Clarendon Press, 1995), especially 142 (‘making rules work’). 19 OECD (n 6) 72; Direttiva del Presidente del Consiglio dei Ministri, 26 February 2009, Istruttoria degli atti normativi del Governo. 20 C Zucchelli, ‘Il coordinamento normativo del Governo: il Dipartimento per gli affari giuridici e legislativi della Presidenza del consiglio’ (2003) 14 Quaderno-Associazione per gli studi e le ricerche parlamentari 199. 21 OECD (n 6) 52.

Legislation in Italy  271 the advice of other administrations involved in the dossier. For some normative acts, ‘specific bodies must be mandatorily consulted (for instance the Council of State or the Court of Audit)’.22 Bills are discussed and initially approved in the House in which they were presented (the Senate of the Republic or the Chamber of Deputies). The examination of the bill is assigned to the competent parliamentary committee, which prepares a report to be submitted to and discussed in the plenary session (commissione in sede referente). Single articles of the bill must be separately discussed and approved. A final vote on the entire bill completes the first stage of the legislative procedure.23 The text as approved is transmitted to the other House, which discusses and finally adopts it following the same procedure. If any changes to the text are made while in the second House, the process (iter legislativo) has to start again from the beginning (the so-called ‘shuttle’, navetta in Italian). The adopted bill is promulgated by the President of the Republic24 and published in the Official Gazette. Only recently has been there free online accessibility of legislation on a government site named ‘Normattiva’,25 which includes both primary and secondary updated legislation. From this perspective, it is possible to argue that legislation means sharing rules about official publication. As has been noted, ‘Italy is a strong example of a system with deep Napoleonic roots. Consequently, there is a sort of regulatory presumption in State intervention and the regulatory stock piles up and becomes ever more complex’.26 Huge legislative inflation does indeed characterise the Italian legal system because the ‘garden of legislation’ is not adequately maintained in Italy27 and this has serious consequences in terms of legal certainty (securité juridique), opportunities for creative compliance and non-effective enforcement. This is the reason why, at the behest of the Organisation for Economic Co-operation and Development (OECD), the 2005 Simplification Act28 introduced a ‘law-cutting’ mechanism (the so called taglia-leggi), which worked as a ‘guillotine clause’ operating on the existing stock of national

22 ibid 72. 23 There are also fast-track procedures (procedimenti abbreviati), as in the case of committees which review and approve the bill (commissione in sede legislativa), unless the government or one-tenth of the deputies/senators or one-fifth of the committee object (in that case, the draft is put back to the plenary); alternatively, there is the case of committees with drafting capacity (commissione in sede redigente), when the committee is responsible for preparing a bill and for submitting it to the plenary. In some cases, the ordinary procedure is required (art 72, IV): ‘The regular procedure for consideration and direct approval by the House is always followed in the case of bills on constitutional and electoral matters, enabling legislation, the ratification of international treaties and the approval of budgets and accounts.’ 24 Article 87.3 of the Italian Constitution: ‘The President of the Republic … [shall] promulgate the laws and issue decrees having the force of law as well as regulations.’ 25 In 2000 the Italian Parliament and the government launched the ‘Normattiva’ project to promote free online accessibility of legislation to the public and a free data bank of legislation, which became fully operation in 2010. 26 OECD (n 6) 66. 27 M De Benedetto, ‘Maintenance of Rules’ in Karpen and Xanthaki (n 5) 215: ‘Legal systems can be likened to public gardens. They work best when they are properly kept and maintained, and this allows them to be easily used. Without intervention and maintenance, they become unkempt and overgrown, making it difficult for the population to derive any benefit from them.’ 28 See Law of 28 November 2005, n 246, arts 14.12 ff. See also Legislative Decree, 1 December 2009, n 179, through which the government proceeded to undertake a systematic review of the norms adopted by the state before 1 January 1970 with a view to identifying those that needed to remain in force. See OECD (n 6) 91.

272  Maria de Benedetto legislation in order to repeal anachronistic and unnecessary legislation.29 So, even though a first and partial simplification has been achieved, it is not possible to define it as a proper management of legislation, as in legal systems in which maintenance activity (cutting, revising or repealing legislation) is regularly carried out. Moreover, while economic interest groups can more easily lobby the government, ministers, ministerial bureaucracies and individual Members of Parliament, the people have limited relevance because ordinary consultation processes are used much more frequently in IA regulation than in legislative procedures. People can be relevant mainly in the upstream and downstream of the legislative process, ie, by submitting a popular legislative initiative or by proposing an abrogative referendum (Article 75 IC).

16.4.  Public Policies and Objectives of Legislation From a public policy perspective, regulation and legislation are tools to achieve objectives.30 The cycle which characterises public policy and regulation (and which consists of planning, formulation, decision, implementation and evaluation) also characterises legislation by requiring ex ante impact analysis and ex post monitoring and evaluation.31 The outcomes of legislation should be monitored and evaluated in order to avoid, as far as possible, ‘perverse effects’ (‘effets pervers’)32 and in order to catalyse effects that are compatible with the given objectives.33 In this context, the policy-making procedure is set, the goals of the law are developed and the instruments for implementing legislation are first defined and then used. However, this is not always true. For instance, in Italy, the public policy process is traditionally weak and lacks clarity.34 Legislative evaluation has been, to some extent, left ‘in the shadow’.35 There are, of course, objectives behind legislation, but they are usually indicated too generically in the Explanatory Report (Relazione illustrativa), which is part of the dossier

29 N Rangone, ‘The Quality of Regulation: The Myth and Reality of Good Regulation Tools’ (2012) 4(1) Italian Journal of Public Law 12: ‘the Guillotine is almost never the end of reform (because the reduction of regulation is not an objective in itself) and theoretically prepares the ground for the normal use of good regulation tools in the regulation life cycle’ also by codification. On this topic, see N Lupo, ‘Premessa. Due meccanismi innovativi di semplificazione dello stock normativo, alla prova dei fatti: avviato il cammino verso un ‘albero delle leggi’?’ and P Carnevale, ‘L’abrogazione al quadrato. Qualche notazione a margine dell’adozione del d.lgs. n. 212 del 2010’ in N Lupo (ed), Taglialeggi e Normattiva, tra luci e ombre (Padua, Cedam, 2011) 3. 30 On this point, see M Howlett and M Ramesh, Studying Public Policy: Policy Cycles and Policy Subsystems (Oxford, Oxford University Press, 1995). 31 See ibid; De Benedetto, Martelli and Rangone (n 17) 13. 32 R Boudon, Effets pervers et ordre social (Paris, PUF, 1977). 33 On this aspect, see Y Leroy, ‘La notion d’effectivité du droit’ (2011) 79(3) Droit et societé 731; see also N Rangone, ‘Making Law Effective: Behavioural Insights into Compliance’ [2018] European Journal of Risk Regulation 487, where she defines the first type as ‘formal’ effectiveness and the second as ‘substantive’ effectiveness. On the ‘importance of rules and rule designs in producing desired results’, see Baldwin (n 18) 142. 34 On this point, see Karpen (n 5) 3: ‘the policy elements of planning and decision-making in the legislative process, have been neglected’. 35 See N Rangone, ‘La valutazione delle politiche pubbliche nella riforma del Senato tra tecnica e politica’ (2015) 187–88 Studi parlamentari e di politica costituzionale 85, 97.

Legislation in Italy  273 of each legislative initiative. According to the already mentioned Directive of 2009,36 the report for government initiatives must indicate the ‘rationale for legislative intervention, its purposes, estimated effects of legislation to be adopted’. In theory, it seems that quality of regulation is required in order to achieve the government’s policy objectives,37 but legislative practice has been characterised by generic objectives and rarely by indicators which can work as standards for legislative ex post evaluation. In theory, not only government directives but also the Rules of Procedures of the Chamber of Deputies seem to be rigorously interested in objectives and evaluation by requiring, for instance, that parliamentary committees examining bills define the set of their objectives as well as the adequacy of tools to achieve them.38 Once again, law-making practice does not always fit the rules. As we will see below in section 16.6, in RIA, objectives and indicators to evaluate outcomes should (in theory) be clearly set out,39 but (in practice) the Italian RIA has been very poor and objectives and indicators have rarely been indicated in order to carry out effective ex post evalutation. A lack of clarity about objectives, symbolic objectives, implicit or non-expressed objectives coming from groups of interest, and few or no indicators to implement effective ex post evaluation have long characterised the practice of Italian legislation. On the other hand, following the logic of public policy evaluation, the objectives of legislation should be adequately designed because ‘better regulation is not about favouring certain policies or objectives over others. It is about being clear on the objectives, whatever they are’.40 This implies that objectives should be SMART (specific, measurable, achievable, relevant and timed).41 For this reason, the new Italian regulation on RIA42 and the recent related directive which provides guidelines43 require clear, consistent and measurable objectives to be

36 See fn 19, Directive 2009, 2.2.1. 37 ibid, Premise. 38 Regolamento Camera art. 79, IV, c. See http://en.camera.it/application/xmanager/projects/camera_eng/ file/rules_of_procedure_chambre_of_deputies.pdf: ‘during consideration of a bill at the reporting stage … the pre-legislative scrutiny and consultation shall take the following aspects into consideration: … c) the objectives of the new legislation and the suitability of the means identified to achieve them’. Even in Chamber of Deputies plenary discussions, rapporteurs can ask the government specific questions relating to the reasons and objectives of legislation proposed by the government (Regolamento Camera, art 83, I bis): ‘in making their reports, the rapporteurs may ask the Government to reply to questions relating to the assumptions and objectives of bills introduced by the Government itself, or to the financial and legislative consequences of the implementation of the provisions contained in Government or parliamentary bills’. 39 Directive 2009, 2.2.4. 40 European Commission, Communication, ‘Better Regulation for Better Results – An EU Agenda’, SWD(2015) 110 final and SWD(2015) 111 final, 6. 41 See GT Doran, ‘There’s a S.M.A.R.T. Way to Write Management’s Goals and Objectives’ [1981] Management Review 35. See also European Commission, Communication, ‘Smart Regulation in the European Union’, COM/2010/0543 final, 3. On ‘smart regulation’, see N Gunningham and P Grabosky, Smart RegulationL Designing Environmental Policy (Oxford, Oxford University Press, 1998); R Baldwin, ‘Is Better Regulation Smarter Regulation?’ [2005] Public Law 485. 42 Decreto del Presidente del Consiglio dei Ministri 15 September 2017, n 169, Regolamento recante disciplina sull’analisi dell’impatto della regolamentazione, la verifica dell’impatto della regolamentazione e la consultazione. 43 Direttiva del Presidente del Consiglio dei Ministri 16 February 2018, n 169, Approvazione della Guida all’analisi e alla verifica dell’impatto della regolamentazione, in attuazione del decreto del Presidente del Consiglio dei ministri 15 settembre 2017.

274  Maria de Benedetto indicated in the RIA report in order to strengthen the role of the ex post evaluation (Verifica d’impatto della regolazione (VIR)) by establishing that it would be possible to manage this process for related regulations or in coordination with different administrations.44 At the end of the day, what is most relevant is that policy evaluation is progressively becoming a feature of legislative activities45 and is even changing the role of the Parliament, as demonstrated by the 2008 constitutional reform in France, the implementation of which imposed an obligation on the French Parliament to carry out public policy evaluation sessions, dedicating one week a month to this kind of activity.46 More or less the same logic seemed to inspire the proposed constitutional reform, which three years ago was used to try to amend the Italian Constitution regarding (among other things) the competences and powers of the Italian Parliament. Within the framework of the proposed reform, the Senate should have had to ‘evaluate public policies, the public administration activities as well as the impact of European Union policies on [Italian] territories’47 and would have participated in ‘control over the implementation of State laws’. Even though the reform was not passed by the constitutional referendum m, the idea that legislative assemblies should develop adequate technical resources in order to strengthen control over the government and to give reasons for their political choices has long been clear and requires the enhancing of parliamentary functions other than mere legislation.48 The Italian Senate Impact Evaluation Office has recently published an interesting Report entitled ‘The Uncompleted. Evaluation of Legislative Acts in Italy’,49 which states that ‘in Italy … the evaluation cycle is essentially unfinished: only in very rare cases have approved acts undergone ex-post monitoring and assessment’.50

16.5.  The Formal Quality of Legislation The formal quality of legislation has long been considered in Italy as ‘craftsmanship’,51 an activity to be learnt more on the job (in Parliament, the legislative offices in ministries etc) than in universities or on postgraduate training courses. A selected small

44 Article 12.5 of the Decree of the President of the Council of the Ministers 169/2017. 45 On this point, see M Ruotolo (ed), La funzione legislativa, oggi (Naples, Editoriale scientifica, 2007). 46 In art 24, the loi constitutionelle du 23 Juillet 2008 established that: ‘Le Parlement vote les lois, contrôle l’action du Gouvernement et évalue les politiques publiques.’ 47 The proposal aimed at changing art 55 of the Italian Constitution. On this point, see Rangone (n 35) 94. See also G Romeo, ‘The Italian Constitutional Reform of 2016: An “Exercise” of Change at the Crossroads between Constitutional Maintenance and Innovation’ [2017] Italian Law Journal 31 and 39: ‘the aforementioned functions … can be summarized in a broad concept of “oversight functions”’. On this point, see especially N Lupo, ‘Il nuovo Senato nel procedimento legislativo’ (2015) 187–88 Studi Parlamentari e di Politica Costituzionale 43. 48 On this topic, see E Griglio, ‘La tassonomia delle funzioni non legislative delle Camere: una prova per il bicameralismo differenziato’ (2015) 187–88 Studi Parlamentari e di Politica Costituzionale105; Camera dei deputati, Osservatorio sulla legislazione, Rapporto 2012 sulla legislazione tra Stato, Regioni e Unione europea, Nota di Sintesi, Vol I, Parlamenti e rappresentanza politica nel governo delle politiche pubbliche, 27. 49 Senato della Repubblica, Ufficio Valutazione Impatto/Impact Assessment Office, ‘The Uncompleted. Evaluation of Legislative Acts in Italy: Critical Issues, Prospects and Good Practice’, 19 April 2018. 50 ibid 1. 51 On this point, see the special issue with a number of contributions, La tecnica legislativa: un artigianato da valorizzare [1985] 108(9) Il Foro italiano.

Legislation in Italy  275 community of professionals have shared competences about tecnica legislativa (‘drafting’ in English-speaking countries at the European level and in international organizations;52 legistique formelle in France),53 which means ‘wording’ for legislation in order to make rules as clear, consistent and understandable as possible. During the 1980s, the clarity and consistency of legislation started to be perceived as ever more relevant in Italy because they can improve – via better understanding – the legitimation of institutions; they contribute to making enforcement simpler, less costly and less controversial by strengthening legislative effectiveness,54 and the lack of clarity and consistency in the formulation of rules may generate consequences in terms of application, according to one very important decision of the Italian Constitutional Court.55 In 1986, the Presidents of the two chambers of the Italian Parliament and the President of the Council of Ministers adopted simultaneous circulars on the technical formulation of legislation.56 The idea was, at that time, to share common standards of drafting between the most important institutions in charge of legislative tasks, with a view to improving the formal quality of legislation.57 Within the more general framework of the OECD Better Regulation policies, during the 1990s, the formal quality of legislation took centre stage even though the quality of legislation was already considered more extensively, as a single integrated purpose, constituted both by formal and substantive aspects. For this reason, the legistica58 has been the object of comprehensive guidelines and circulars, in which formal and substantive quality aspects of legislation were combined and ever more integrated.59 However, in 1997 a reform of the Chamber of Deputies Rules of Procedure established a Committee for Legislation (Comitato per la legislazione) composed of ‘equal representation of the majority and the opposition’ (Article 16 bis) with the specific aim of supporting the formal quality of legislative texts ‘with regard to their homogeneity, simplicity, clarity and correctness of wording, and to their effectiveness in simplifying

52 See recently the Interinstitutional Agreement on Better Law-Making (13 April 2016), which aims to promote better law-making through simplicity, clarity and consistency in EU legislation as well as transparency in the legislative process. 53 See J Chevallier, ‘L’évaluation législative: un enjeu politique’ in A Delcamp, JL Bergel and A Dupas (eds), Contrôle parlementaire et évaluation (Paris, La documentation française, 1995) 13. 54 It might be useful to remember that in 1979, Massimo Severo Giannini, as Minister of the Civil Service, transmitted to the Parliament a very famous report on the main problems of the state administration (Rapporto sui principali problemi della Amministrazione dello Stato), which highlighted the problem of the feasibility and implementation of laws. 55 The Italian Constitutional Court, in the historic decision No 364/1988, contributed to the imposition of an obligation on legislators to adopt clear and understandable rules as far as possible. In other words, the Constitutional Court stated that if legislation is obscure or if it has created interpretative chaos among judges, citizens cannot be considered responsible for infringments connected to mistakes in interpretation; as a consequence, rules which are not sufficiently clear cannot be considered to be applicable. 56 Dated 19 February 1986. 57 On this point, see G Recchia and R Dickmann (eds), Istruttoria parlamentare e qualità della normazione (Padua, Cedam, 2002). 58 See R Pagano, Introduzione alla legistica. L’arte di preparare le leggi (Milan, Giuffrè, 2004). 59 As in the case of the 1997 Presidents of the two Chambers of the Italian Parliament Circulars on Examination of Bills in Parliamentary Committees (Circolari sulla Istruttoria legislativa nelle Commissioni) dated 10 January 1997. On this point, see N Lupo, ‘Tecnica e politica della legislazione nelle circolari sulla redazione degli atti normativi’ (2004) 1 Quaderni regionali 97.

276  Maria de Benedetto and reorganising the legislation currently in force’. The Committee expresses an opinion which is ‘annexed to the report for the House’.60 In 2001, the Presidents of the two chambers and the President of the Council of Ministers adopted (once again simultaneously) circulars on drafting,61 especially with a view to giving rules and recommendations to drafters about the technical formulation of legislative texts. Alongside drafting for primary legislation and government regulation, other manuals and guidelines have been produced, mainly regarding drafting of regions.62

16.6.  The Substantive Quality of Legislation The Italian case probably cannot be considered a brilliant example of designing and implementing Better Regulation tools. Rather, the substantive quality of legislation has encountered many difficulties: even though RIA was introduced 20 years ago, currently quality of legislation tools are not fully operational and effective. The Council of State, quoted by the Senate Impact Assessment Office, has observed that even today in Italy, evaluation tools are applied using ‘a formalistic approach’ as if they were ‘a mere bureaucratic compliance issue, of no real usefulness’.63 However, the implementation of rules for the substantive quality of legislation can be explained using a three-step description. The first period runs from the introduction of quality of regulation tools in 1999 to 2005 and has been characterised by enthusiasm, but also by inadequate rules, poor institutional capacity and administrative inertia.64 The international debate on regulatory reform and the recommendation of the OECD65 led to the adoption of the first Italian Simplification Law,66 which introduced the so-called Analisi d’impatto della Regolazione (AIR) (that is, RIA), specifically oriented to governmental legislation (‘schemes’ of government and ministerial regulation). Impact analysis was also established in the context of parliamentary legislative procedures;67 in 2003, Article 12 of the 2001 Simplification Law

60 See V Di Porto, ‘Il Comitato per la legislazione, venti anni dopo’, Luiss School of Government Working Paper Series, SOG-WP/2018. Furthermore, art 79 stated that committees in their reporting capacity shall take into consideration (among other things) ‘lack of ambiguity and clarity of meaning of definitions and provisions, as well as the appropriate arrangement of the subject in sections and paragraphs’ (art 79, IV, d). 61 Dated 20 April 2001, Regole e raccomandazioni per la formulazione tecnica dei testi legislativi. See also the President of the Council of Ministers Circular, 2 May 2001, Guida alla redazione dei testi normative. 62 Regole e suggerimenti per la redazione dei testi normativi, Manuale per le Regioni promosso dalla Conferenza dei Presidenti delle Assemblee legislative delle Regioni e delle Province autonome, 3rd edn, December 2007, available at: www.parlamentiregionali.it/dbdata/documenti/[48749bf0f3ef4]manuale_drafting_12.07.pdf. See also R Zaccaria, E Albanesi, E Brogi and V Fiorillo (eds), La buona scrittura delle leggi (Rome, Camera dei deputati, 2012). 63 Senato della Repubblica (n 49) 3. 64 M De Benedetto, ‘Il quasi-procedimento per l’analisi d’impatto della regolamentazione’ [2004] Studi Parlamentari e di Politica Costituzionale 145. 65 A Natalini and F Sarpi, ‘L’insostenibile leggerezza dell’AIR’ [2009] Giornale di diritto amministrativo 233. 66 Article 5 of Law of 8 March 1999, n 50, Delegificazione e testi unici concernenti procedimenti amministrativi – legge di semplificazione 1998. 67 According to art 5.II, the analysis should take into consideration the impact of regulation in the course of adoption on three different categories of addressees: public administrations, citizens and businesses. Two administrative experiments took place in 2000 and 2001. In 2000, a directive introduced two different reports (the

Legislation in Italy  277 extended the RIA to the regulation of independent authorities. Even though a government body (the Regulatory Simplification Unit (Nucleo per la Semplificazione e la Qualità della Regolazione))68 was completely dedicated for three years to Better Regulation purposes, the ‘political context’ was probably not yet mature enough to use these techniques for the quality of legislation. The second period runs from 2005 to 2017 and was characterised by ambiguities in the design and implementation of Better Regulation tools. The 2005 Simplification Law69 established that decrees of the President of the Council of Ministers would implement ex ante and ex post quality of regulation tools.70 The Decree on RIA implementation71 aimed to provide a simplified version (the so-called ‘light RIA’)72 and established that an ‘adequate RIA Report’ was needed in order to discuss a governmental proposal in the Council of Ministers. On the other hand, the RIA report ‘may’ be published, ‘even’ during the legislative process, ‘even’ through digital tools (Article 6, paragraph 6). In other words, the regulation itself expressed a sort of duplicity by putting together rules which set procedural standards for adequate RIA, and rules which neutralized them by making provisions optional or by reducing the transparency in its implementation. The RIA reports were indeed not made public; rather, there were difficulties in finding them73 and, when found, they were very poor and inadequate. Furthermore, the Department of Legal and Legislative Affairs (Dipartimento per gli affari giuridici e legislativi (DAGL))74 – the institutional central player in the Presidency of the Council of Ministers – does not have adequate competence

already mentioned ‘Analisi d’impatto della regolazione’ and the ‘Analisi tecnico-normativa’ (ATN), a legal technical analysis (LTA), as defined by the OECD (Regulatory Reform in Italy: Government Capacity to Assure High Quality Regulation (Paris, OECD Publishing, 2001) 7), which should be appended to each government draft proposed regulation in order to be discussed in the Pre-Council of Ministers (formed by the legislative offices of ministries). See Direttiva del Presidente del Consiglio dei Ministri, 27 March 2000, Analisi tecnico-normativa e analisi dell’impatto della regolamentazione. In 2001, following the OECD report mentioned above, a further directive established the second experiment (Direttiva del Presidente del Consiglio dei Ministri 21 September 2001, Sperimentazione dell’analisi di impatto della regolamentazione sui cittadini, imprese e pubbliche amministrazioni). On this point, see E Catelani and E Rossi (eds), L’analisi di impatto della regolamentazione (AIR) e l’analisi tecniconormativa (ATN) nell’attività normativa del Governo. Atti del seminario di studi su L’attività normativa del Governo: profili procedurali e organizzativi, svoltosi a Pisa il 10 giugno 2002 (Milan, Giuffrè, 2003); P Costanzo (ed), La qualità della normazione nella dialettica Governo-Parlamento. Strumenti e tecniche nella XVI legislatura, Quaderni della Rassegna Parlamentare (Naples, Jovene, 2011); A Natalini and G Vesperini, L’analisi d’impatto della regolazione. Il caso delle autorità indipendenti (Rome, Carocci, 2012). 68 F Patroni Griffi, ‘La fabbrica delle leggi e la qualità della normazione in Italia’ (2000) 1 Diritto amministrativo 115. 69 Article 14.5 of Law of 28 November 2005, n 246. 70 See, in general, CM Radaelli, ‘Diffusion without Convergence: How Political Context Shapes the Adoption of Regulatory Impact Assessment’ (2005) 12(5) Journal of European Public Policy 924. 71 Decree of the President of the Council of the Ministers, 11 September 2008, n 170. In 2009, a second Decree was adopted to regulate the ex post evaluation report (Verifica d’impatto della regolamentazione (VIR)) (Decree of the President of the Council of the Ministers, 19 November 2009, n 212). See L Mader, ‘Evaluating the Effects: A Contribution to the Quality of Legislation’ [2001] Statute Law Review 119: ‘evaluation is an essential part of legislative methodology. See also a Directive of the President of the Council of Ministries on the procedures to be followed for government legislation, with the expressed purpose of achieving ‘quality of regulation’: Direttiva 26 February 2009, Istruttoria degli atti normativi del Governo. 72 Natalini and Sarpi (n 65) 234. On this point, see M Martelli and P Mariuzzo, ‘Un kit di sopravvivenza per L’AIR: la progettazione leggera’ [2006] Studi Parlamentari e di Politica Costituzionale 97. 73 To give an example, Legifrance, the official government website for France legislation, has a specific section devoted to ex ante evaluation of legislation: https://www.legifrance.gouv.fr/Droit-francais/Evaluationprealable-des-projets-de-normes. 74 Zucchelli (n 20).

278  Maria de Benedetto to perform its oversight role, nor is it best placed to develop Better Regulation tasks.75 A new special Unit for Simplification and Quality of Regulation (Unità per la semplificazione e la qualità della regolazione), attached to the Presidency of the Council of Ministers, operated during these years to improve the use of Better Regulation tools and to support simplification and cutting legislation processes.76 Starting in 2014, the annual report on the implementation of the RIA (required by Article 14.X of the 2005 Simplification Law)77 has been made available. The third and last period started in 2017 and is still ongoing at the time of writing. It seems to be characterised by the aim of strengthening the institutional capacity for Better Regulation tools, but also by the key role placed by the Council of State. Alongside the DAGL, which is the formal supervisor for the regulatory impact analysis carried out by administrations, a much stronger substantive oversight has been concretely carried out in recent years by the Council of State (Section for Controls on Normative Acts).78 In its advisory role for government regulation, the Council of State has de facto exerted real pressure to adopt and maximise Better Regulation tools in the regulatory process, especially by requiring adequate RIA.79 The Council of State has stigmatised the use of RIA ‘as an a posteriori justification of already-made legislative choices rather than as a direct, upstream tool for guiding such choices’ and the fact that the offices in charge of evaluation are ‘staffed by employees whose training is exclusively juridical, and who are not well prepared culturally for empirical and quantitative research’.80 Within this framework, a new decree on Better Regulation tools was adopted in 2017.81 In a break from the past, the decree expresses an integrated approach because it concerns regulatory impact analysis and ex post evaluation (which were previously regulated by different decrees) as well as consultations (which have previously never been regulated). The new regulatory framework presents novelties and changes. While RIA has been established and is mandatory for all simple regulatory issues (although frequently derogated), now Better Regulation tools are directed at complex issues according to a selective and proportionate approach. Moreover, the decree establishes a simplified mandatory impact evaluation even for urgent legislation (decree laws) which was previously exempted, and an obligation to ensure the publicity of regulatory evaluations and planning of regulatory agendas. Stronger attention is now directed at the expertise necessary to carry out ex ante and ex post impact evaluation (which cannot be exclusively a legal expertise). Finally, RIA has started to be considered important for the participation of Italian public administrations in 75 In this regard, the OECD has clearly indicated that regulatory oversight bodies should have ‘independence and sufficient authority’: OECD, Oversight Bodies for Regulatory Reform (Paris, OECD Publishing, 2007) 6. 76 The Unit for Simplification and Quality of Regulation (Unità per la semplificazione e la qualità della regolazione) was established by the Decree Law of 18 May 2006, n 181. On this point, see E Donelan, ‘European Approches to Improving Access to and Managing the Stock of Legislation’ [2009] Statute Law Review 147. 77 http://presidenza.governo.it/DAGL/uff_studi/servizio_analisi_verifica.html. 78 Under the presidency of Luigi Carbone, a State Councillor who is one of the best Italian experts in Better Regulation issues and who has been part of both of the Nucleo and the Unità per la semplificazione e la qualità della regolazione. See L Carbone, ‘Prefazione’ in De Benedetto, Martelli and Rangone (n 17) 7. 79 On the role of the Council of State in requiring adequate impact regulatory analysis for government regulation, see M De Benedetto, ‘La motivazione delle regole’ in F Astone, M Caldarera, F Manganaro, F Saitta, N Saitta and A Tigano (eds), Scritti in memoria di Antonio Romano Tassone, vol II (Naples, Editoriale Scientifica, 2018) 905. 80 Senato della Repubblica (n 49) 3. 81 Dpcm 15 September 2017, n 169, Regolamento recante disciplina sull’analisi dell’impatto della regolamentazione, la verifica dell’impatto della regolamentazione e la consultazione.

Legislation in Italy  279 the European law-making process and, in particular, for the impact assessment of EU draft proposals in relation to their national impact.

16.7.  Training on Legislation in Italy There is no strong tradition of legislative studies, drafting and Better Regulation in Italian university curricula. In most cases, Italian drafters – in the Parliament as well as in the government’s legislative offices – have a legal background; however, legislation is considered part of post-graduate professional training.82 However, some experiences at graduate level can be mentioned, both in the field of traditional training (‘law drafting’) and of emerging training (‘training programme [concentrated] on the cycle of regulation and public policy evaluation’).83 For instance, traditional training on legislative drafting (Tecnica legislativa) is offered by the University of Genoa (as part of the law curriculum), while the University of Pisa offers a course more oriented towards regulatory and administrative drafting (Tecniche di redazione dei regolamenti degli atti amministrativi, as part of the political science curriculum). A couple of cases are worth mentioning in relation to ‘emerging training’: the European approach to Better Regulation Jean Monnet module at Lumsa University is ‘a multidisciplinary course in English’ where ‘students will be involved in interactive lessons, case studies, workshops and laboratories’;84 workshops on RIA have been carried out in the Department of Political Science at Roma Tre University, with the purpose of ‘cementing’ impact assessment on specific topics (such as the regulation of beaches).85 Postgraduate education on legislation can be grouped into four kinds of training module. First of all, there are academic postgraduate courses: Luiss University offers an advanced training course on legislative drafting (Corso di perfezionamento in drafting legislativo. Techiche di redazione degli atti normativi);86 the University of Genoa has also offered an advanced training course in legislation (Corso di perfezionamento in Scienze Legislative).87 A successful experience in training on Better Regulation is the ‘Short Course of Regulation’, three full-day programmes organized by Lumsa University and Sapienza University in collaboration with the London School of Economics (LSE) in Rome.88 Second, there are second-level master’s degrees for students and professionals looking to work as drafters in parliamentary offices or as lobbyists. Among others, Luiss University offers a Master’s in Parliament and Public Policy (Master in Parlamento e politiche pubbliche)89 and also participates in the joint Master’s in Parliamentary Procedures and

82 See P Popelier, ‘Manangement of Legislation’ in Karpen and Xanthaki (n 5) 61. In the same way as in Belgium and France, in Italy, drafting ‘is not identified as a specific function, and the drafting of legislation is considered part of the many tasks of the administrative staff ’. 83 M Taveres de Almeida and C Moll, ‘Legislative Training’ in Karpen and Xanthaki (n 5) 260. 84 https://betteregulation.lumsa.it. 85 The results of the workshop were published in 2009 on the website of the Italian Senate of the Republic: www. senato.it/service/PDF/PDFServer/BGT/00736950.pdf. 86 http://lsl.luiss.it/academic-programs/drafting-legislativo. 87 www.dispo.unige.it/didattica/corsi-alta-formazione/corso-perfezionamento-scienze-legislative. 88 The three versions of the course were held in September 2012, March 2014 and September 2015. 89 www.luiss.it/ammissione/offerta-formativa/master-in-parlamento-e-politiche-pubbliche.

280  Maria de Benedetto Legislative Drafting (EUPADRA) with the Spanish Universidad Complutense (Madrid) and the Institute of Advanced Legal Studies (IALS, University of London).90 Furthermore, the Italian Senate of the Republic together with Ca’ Foscari University of Venice and other institutional actors promotes a Master’s degree specifically devoted to public policy analysis and evaluation (Master in Analisi e valutazione delle politiche pubbliche).91 Moreover, since 2004, the Department of Political Science at the Sapienza University of Rome has offered the ‘Mario Galizia’ Master’s in Parliamentary Institutions (Master in Istituzioni parlamentari per consulenti d’assemblea).92 Third, there are some cases of prominent institutional, not exclusively academic training. A long tradition in teaching legislation characterises the Institute for Documentation and Research in Legislation (Istituto per la documentazione e gli studi legislativi (ISLE), Rome).93 In the same way, the Seminar of Parliamentary Studies (Seminario di studi parlamentari ‘Silvano Tosi’, now the Centro per gli Studi e le Ricerche Parlamentari at the University of Florence) has been sponsored by the Italian Parliament and by academics since 1967.94 Finally, drafting and legislation have been the object of professional and job training organised over time by schools of administration and recently by the Scuola Nazionale di Amministrazione (SNA). A partnership between the SNA and the DAGL promoted a series of training courses in 2015 and 2016, which were intended to strengthen professional skills and knowledge of public officers and public managers who worked in ministries in activities connected to RIA.95

16.8. Conclusion In the Italian ‘factory of laws’, ‘entrepreneurs’ (those who ‘make’ rules), the ‘manufacturing process’ (law-making procedures) and ‘products’ (legislation) are critically related,96 and there is a need for stronger and more stable inter-institutional relationships.97 However, the problem of good-quality legislation is connected to unstoppable and enormous Italian

90 https://eupadra.eu/index.php/2015/10/29/program-structure. In particular, the Eupadra Master’s ‘represents the first learning mobility project which allows the study of parliamentary procedures and legislative drafting in three different European capitals’. 91 https://www.senato.it/4777?testo_generico=1316. 92 www.masterparlamenti.it. 93 TE Frosini, Teoremi e problemi di diritto costituzionale (Milan, Giuffrè, 2008), especially 45 ff. The ISLE organises a course which has taken place every year since 1988, as well as seminars and workshops: the School of Legislation (Scuola di scienza e tecnica della legislazione) aims to provide professional specialised training for state and regional public officers interested in legislation. See www.isle.it/scuolatecnica.aspx. 94 It provides a highly specialised school for the training of parliamentary officers, combining job technicalities and interdisciplinary education which has proven successful in preparing for the selective procedures to be engaged in the Italian Parliament. See www.centrostudiparlamentari.it. 95 Presidenza del Consiglio dei Ministri, Relazione sullo stato di applicazione dell’analisi di impatto della regolamentazione, relativa all’anno 2017, 53. Regarding PhD programmes specifically devoted to legislation, some cases unfortunately regard the past: from 1997 to 2007, the University of Genoa proposed (from the XII to the XXII PhD national cycles) a programme on drafting and legislative evaluation (Metodi e tecniche della formazione e della valutazione delle leggi); a Lumsa University PhD programme (dottorato in Scienza della regolazione), which is no longer active, was devoted to regulation and quality of regulation. 96 Patroni Griffi (n 68) 100. 97 ibid 112.

Legislation in Italy  281 legislative inflation, a real and long-diagnosed pathology,98 which is the result of many factors: degeneration of the parliamentary system,99 pressures of groups of interests on legislators to achieve favourable rules100 and public interventions in the economy in line with the Italian Constitution.101 Symbolic politics, the absence of any maintenance of the regulatory stock, and frequent modifications and revisions of already adopted legislation combine to nurture a real crisis of confidence in legislation.102 In 2009, a primary Law103 disciplined ‘clarity of normative texts’ by establishing that the government in its law-making competences should make explicit every substitution, modification, abrogation or derogation of rules and also should make clear and accessible references in rules to other rules. These two simple principles were solemnly defined by Article 3 as ‘general principles for law-making’, even though this followed a number of circulars, guidelines and regulations on drafting already adopted over the course of 30 years; this probably suggests that in relation to this matter, much remains to be done in Italy. Moreover, there are other specific reasons working against better-quality legislation: in the long-standing crisis of the legislative process, alongside non-effective tools for better legislation, the frequent use of decree laws and the practice of maxi-amendments104 have persuaded academics improving the quality of rules in Italy is impossible105 – at least for the moment.

Further Reading M Ainis, La legge oscura: come e perché non funziona (Rome-Bari, Laterza, 1997) S Cassese, ‘Introduzione allo studio della normazione’ (1992) 2 Rivista trimestrale di diritto pubblico 307–30 BG Mattarella, La trappola delle leggi. Molte, oscure, complicate (Bologna, Il Mulino, 2011) F Modugno (ed), Trasformazioni della funzione legislativa – Vol. 2: Crisi della legge e sistema delle fonti (Milan, Giuffrè, 2000) C Pinelli, ‘Le regole sulla qualità della legislazione e il principio di sussidiarietà’ [2000] Rivista di diritto costituzionale 62–73 GU Rescigno, ‘Tecnica legislativa’ in Enciclopedia Giuridica Treccani (Rome, Treccani, 1993) MA Sandulli and L Carbone (eds), Codificazione, semplificazione e qualità delle regole. Atti del Convegno. Roma, 17–18 marzo 2005 (Milan, Giuffrè, 2005) 98 F Carnelutti, ‘Certezza, autonomia, libertà, diritto’ [1956] Il diritto dell’economia 1195. On this point, see also N Lupo, ‘Fisiologie e patologie in una produzione normativa necessariamente sempre più complessa’ (2010) 170 Studi parlamentari e di politica costituzionale 73. 99 G Pasquino, Nuovo corso di scienza politica (Bologna, Il Mulino, 2009) 193. 100 A la Spina, La decisione legislativa. Lineamenti di una teoria (Milan, Giuffrè, 1989) 371. 101 G Corso, ‘Perché la “complicazione”?’ (2008) 3–4 Nuove autonomie 326. 102 C Coglianese, Regulatory Breakdown: The Crisis of Confidence in US Regulation (Philadelphia, University of Pennsylvania Press, 2012). 103 Law of 18 June 2009, n 69, art 3, which inserted an art 13 bis into the Law of 23 August 1988, n 400. 104 On this point, see M Cotta and L Verzichelli, Political Institutions in Italy (Oxford, Oxford University Press 2007) 156: a maxi-amendment is ‘proposed by the Government in order to prevent parliamentary attacks on different articles of a given bill’. 105 N Lupo, ‘La lunga crisi del procedimento legislativo e l’impossibile qualità delle regole’ [2013] Analisi giuridica dell’economia 425.

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17 Legislation in Latvia DAIGA REZEVSKA

Context Latvia belongs to the Continental European legal system. It is based on Western legal culture with a prevailing meaning of law founded in the natural law doctrine and a noticeably strong doctrine on general principles of law derived from the basic norm – a democratic state based on the rule of law – which is proclaimed by the sovereign: the people of Latvia. According to the doctrine of the general principles of law, elaborated by legal science and implemented by the courts and especially by the Constitutional Court, general principles of law are recognised as unwritten, directly applicable legal norms in the hierarchy of legal norms prevailing over all written legal norms, thus determining the content of all written legal norms of the given legal arrangement as well as setting the limits for the discretion of legislators.1

17.1.  The Meaning of Law, the Doctrine of the Sources of Law and the Hierarchy of Legal Norms After 50 years of Soviet occupation, Latvia regained its independence in 1990. Since then, its legal structure has undergone a tremendous development from the Soviet legal system back to the Western legal culture and the Continental European legal system that it had followed before the Soviet occupation. Legal science together with the judicial system have created, introduced and enforced a strong national doctrine of the sources of law, with general principles of law playing an important and central role in the functioning of this democratic rule of law-based legal arrangement. The key role in this process is allocated to the Constitutional Court of the Republic of Latvia. Thus, the doctrine of the sources of law as developed by legal science and implemented by the courts is based on the basic norm of the legal arrangement of Latvia – a democratic rule of law-based state, Latvia’s legal obligations under international law and Latvia’s membership of the EU. The governing meaning of law within Latvia’s legal arrangement is

1 See, eg, Judgment of the Constitutional Court of 12 April 2018 in Case No 2017-17-01. Available in Latvian at: www.satv.tiesa.gov.lv.

284  Daiga Rezevska based on the natural law doctrine, so the doctrine of sources of law is elaborated taking into account the natural law doctrine as well. With the ratification of the Treaty on Latvia’s accession to the EU, EU law has become an integral part of Latvian law. According to this agreement, Latvia is bound by the legal acts adopted by the EU institutions and the interpretation of these acts established by the case law of the European Court of Justice. The legal arrangement of Latvia is based on openness to international law (the monism doctrine). Article 4 of the Declaration On the Restoration of the Independence of the Republic of Latvia (4 May 1990),2 which states that Latvia recognises the primacy of the fundamental principles of international law over the norms of national law, and Article 68 of the Constitution of the Republic of Latvia – Satversme3 indicates that relations between the Latvia’s legal arrangement and international law are based on the principle of monism. This means that the norms and principles of international law, irrespective of their source in international law, as well as national legal norms and principles are directly applicable in the legal arrangement of Latvia. Article 89 of the Constitution, in its turn, determines that the state recognises and protects the fundamental rights of a person in accordance with the Constitution, laws and international agreements that are binding on Latvia. The Constitutional Court has concluded that the obligation of the state to take into account international obligations in the field of human rights follows from this article of the Constitution. Alongside the sources listed in Article 38 of the Statute of the International Court of Justice,4 today, new sources of international law have emerged, such as documents adopted by international organisations or unilateral acts of states. In all of these sources, legally binding rules and principles of international law can be found. Specific types of sources of law within a legal arrangement are cumulatively determined by two factors: (1) positive legal regulation provided by the legislator; and (2) a group of factors that are independent of the legislator, relating to the characteristics of the particular legal field and legal system. These factors include, for example: (i) basic norms proclaimed by the sovereign determining the content of the relevant legal arrangement; (ii) affiliation to a particular legal system (Romano-Germanic, Anglo-American, Scandinavian etc); (iii) the stage of historical development of the particular legal arrangement; and (iv) the governing doctrine of the meaning of law (natural law doctrine, legal positivism etc) in the given legal arrangement. Summarising the normative framework given by the legislator for the existence of different types of legal sources in the Latvian legal system, it can be concluded that these sources are general principles of law, normative acts, including normative agreements – international treaties, national and international customary law, legal science or doctrine and case law. Taking into account the above-mentioned positive regulation of the types of legal sources by the legislator in connection with the types of sources of law determined by

2 On the Restoration of the Independence of the Republic of Latvia Declaration, 1990. Available in Latvian at: https://likumi.lv/doc.php?id=75539. 3 1922 Constitution. Available at: https://likumi.lv/ta/en/en/id/57980-the-constitution-of-the-republic-of-latvia. 4 The primary sources are: (1) conventions, (2) custom and (3) general principles of law; and subsidiary sources: (i) judicial decisions and (ii) legal doctrine. Statute of the International Court of Justice. Available at: https://www.icjcij.org/en/statute.

Legislation in Latvia  285 the factors that are independent of the legislator, there are several types of legal sources in Latvia, which, depending on the legal force of these sources, are divided into two groups: (1) independent sources of law or sources of law with a generally binding character; (2) secondary sources of law which are not generally binding. Such a division of sources of law is based on a very important characteristic or the underlying criterion of generally binding force. This means that independent sources of law, unlike secondary sources, consist of legal norms and are therefore generally binding and could be used as a major premise of the legal syllogism. By contrast, secondary sources of law do not have a generally binding force and can be used only for the reasoning (argumentation) part of legal decisions (administrative or judicial). Similarly, the independent sources may and even need to be used in the reasoning part of the legal decisions.5 Thus, the doctrine of sources of law in Latvia follows the Western legal culture and the Continental European legal system, where a diversity of legal sources serve as a legal method when all the factors which are necessary in reaching a just and reasonable answer to the case and have to be taken into account in the application of law are considered to be sources of law. This recognises the fact that the diversity of sources of law is a precondition for reaching a just legal decision in a given factual case. It is the diversity of sources of law (and not one source of law) that ensures: (1) maximum impartiality of the person applying the law, as the decision will be more sound; and (2) finding and adopting the just and reasonable decision at a given time and place in a particular case. Therefore, irrespective of whether and how the legislator has been able to uniformly describe the sources of law in separate normative acts, certain types of legal sources already exist objectively in the legal system of a democratic state based on the rule of law from the moment of the creation of this legal arrangement, ie, from the moment when the sovereign has proclaimed a basic norm. According to this division, the independent sources of law in the legal arrangement of Latvia include: (1) general principles of law; (2) the result of a generally binding legal interpretation: the interpretation of EU law by the European Court of Justice, the interpretation of the European Convention on Human Rights by the European Court of Human Rights, and the interpretation of national legal norms by the Constitutional Court; (3) normative acts (including normative agreements); and (4) customary law. The secondary sources of law include: (1) the case law of the courts of general jurisdiction and administrative courts; (2) legal science (doctrine); (3) the materials of the process of drafting legislative acts (travaux préparatoires); and (4) the dissenting (concurring) opinions of judges. These are the sources that help to clarify the true content of generally binding legal norms. The independent sources of law prevail over the secondary sources. Normative acts have hierarchical relations depending on their legal force, which is determined by two factors: (1) who adopts – the place of the institution in the state’s structure; (2) what the procedure is in which a normative act is adopted or amended. Thus, the normative act with the highest legal force is the Constitution, followed by the laws (statutes) adopted by the Parliament (Saeima), then government regulations and, finally, binding regulations of the local governments. International law prevails over national legal norms in cases of conflict.

5 See generally D Rezevska, Vispārējo tiesību principu nozīme un piemērošana (Meaning and Application of General Principles of Law), 2nd edn (Riga, Tiesu namu aģentūra, 2015).

286  Daiga Rezevska EU law prevails over national law on the basis of the principle of primacy of EU law. The inviolable core of the Constitution remains untouched, which according to the doctrine consists of the core elements of four general principles of law of the democratic state based on the rule of law: the rule of law, democracy (in a narrower sense), the national state and the social state.6

17.2.  The Organisation, Procedure and Management of Legislation Legislation is regulated in Chapter V of the Constitution. Article 64 of the Constitution states that legislative competence is vested in the Saeima and also that the people have the right to legislate in accordance with the procedures and, to an extent, provided for by the Constitution. Nevertheless, the Constitution distributes power between the body of Latvian citizens and the Saeima, but it grants the exclusive rights of the people of Latvia to deal with the fundamental norms of the Constitution, ie, to annul the Constitution or to create a new constitutional system.7 First, according to Article 78 of the Constitution, the body of Latvian citizens can adopt amendments to the Constitution; second, in accordance with Article 77 of the Constitution, only the body of citizens can modify Articles 1, 2, 3, 4, 6 and 77 of the Constitution. These articles are regarded as the most important articles of the Constitution and any change to these might result in changes to the democratic structure of the state and the order of the republic. This is why these articles of the Constitution are given to the protection by the people – they can be changed only on the basis of a compulsory referendum where the people express their own will.8 Thus, the Saeima cannot ignore the people’s rights to participate in the decision-making process, which follows from Article 2 of the Constitution. Article 77 of the Constitution, when providing for the right of Latvian citizens to change the constitutional basis of the State of Latvia, prohibits changing it in any way other than through a free referendum. In if these principles have been changed as the result of a coup d’etat or invasion by another state, the Latvian people do not lose the right to decide on existence of the state and its constitutional order. The Constitution can be amended in two ways. First, as stated in Article 76 of the Constitution, this can be done by the Saeima in sittings at which at least two-thirds of the members participate; in this case, the amendments must go through three readings of the legislature and they must receive at least a two-thirds majority of the members present. Second, amendment can be effected by a national referendum if the Saeima has amended Articles 1, 2, 3, 4, 6 or 77 of the Constitution or if the Saeima does not adopt, without changing the substance, a fully elaborated draft of an amendment to the Constitution

6 Opinion of the Constitutional Law Commission of the State President on the Constitutional Basis of the State of Latvian and the Inviolable Core of the Constitution. Available in Latvian at: http://blogi.lu.lv/tzpi/ files/2017/03/17092012_Viedoklis_2.pdf. 7 See also Judgment of the Constitutional Court of 29 November 2007. Available in Latvian at: www.satv.tiesa.gov.lv. 8 K Dišlers, Ievads Latvijas valststiesību zinātnē (Introduction to Latvian Administrative Science) (Riga, A Gulbis, 1930) 110.

Legislation in Latvia  287 submitted by no less than one-tenth of the electorate. An amendment to the Constitution submitted for national referendum is adopted if at least half of the electorate votes in favour (Articles 78 and 79).

17.2.1.  Acts of the Saeima (Statutes) The process of legislation consists of four stages: (1) initiation; (2) elaboration of the text of bills; (3) adoption; and (4) promulgation. The right to submit the drafts of bills to the Saeima is granted to: (i) the State President; (ii) the government,; (iii) parliamentary committees; (iv) no less than five members of Saeima; or (v) one-tenth of the electorate (Article 65). With the exception of legislative initiatives from the State President, they must be drawn up in the form of bills. The State President has the right to undertake an initiative to legislate without submitting a draft of a bill. The process for passing statutes consists of the three readings unless the Saeima decides by no less than a two-thirds majority that a law is urgent. In that case, the bill must be adopted in two readings. Each of the readings has a different aim: the first reading is devoted to determining whether the law is necessary, the second reading is devoted to the drafting of various sections of the bill and the third reading is devoted to the finalisation of the bill. The procedure with three readings therefore serves, in a sense, to ensure that a bill is developed as far as possible. Only two readings are required for the adoption of a budget bill and for amendments to the state budget and bills for the ratification of international agreements. Amendments to the Constitution always go through three readings and they must receive a majority of no less than two-thirds of the members present (at each reading) during sittings attended by at least two-thirds of the members of the Saeima. All international agreements dealing with matters that can be decided upon by the legislative process require ratification by the Saeima. Upon entering into international agreements, Latvia can, in order to strengthen its democracy, delegate some of the powers of its state institutions to international institutions. International agreements involving the delegation of state institution powers to international institutions can be ratified by the Saeima in sittings in which at least two-thirds of the members participate. A two-thirds majority vote of the members present is necessary for ratification. Most of the Saeima’s work consists of drafting the text of legislation. The final versions of the text of bills are drafted in the corresponding parliamentary committees and in the plenary sessions. No bill can be put on the agenda or considered by the Saeima before the responsible committee has considered it. Each committee which receives a bill from the Saeima can prepare an alternative bill to be considered at the first reading. If the bill is drafted and initiated by the parliamentary committee which is also designated as the responsible committee by the Saeima, the bill proceeds to a first reading without a second review in the responsible committee. If the committee concludes that a bill submitted by the government requires revision, the Saeima can return the bill to the government and set a deadline for submitting the revised bill to the Saeima. After bills are received by the Saeima, the presidium reports on them and gives its opinion regarding subsequent handling. The Saeima decides whether bills will be forwarded to the committees and whether to appoint a responsible committee. It may also reject the

288  Daiga Rezevska bill. The responsible committee submits its opinion to the presidium, together with an explanatory note concerning the bill. The Parliamentary Rules of Procedure9 determine the legislative process in detail. Before the first reading can be held: (1) the bill, the responsible committee’s opinion on it and an explanatory note concerning this bill must be made available to members of the Saeima at least seven days before the first reading; and (2) the comments of the Minister of Finance must accompany the bill if it requires additional expenditure or changes in revenue compared to the budget. This provision does not apply to bills submitted by the government or if the Minister of Finance fails to provide his or her comments by the d ­ eadline set by law. The first reading of a bill begins with a report from the rapporteur appointed by the responsible committee, followed by a debate on the provisions of the bill. If a bill passes the first reading, the Saeima sets a deadline for the submission of proposals. The responsible committee, together with the Saeima’s legal service and experts in the official language, prepares the bill for the second and third readings. The committee states its opinion on the submitted proposals and, if necessary, adds its own proposals. The second reading of a bill again begins with a report from the rapporteur, followed by the consideration of the bill section by section. During the second reading, debate must be restricted to specific sections or parts of them. Proposals rejected when put to a vote separately during the second reading cannot be resubmitted after the second reading. Only those sections for which proposals have been submitted after the second reading are considered and put to a vote during the third reading. During the third reading, voting is restricted to proposals from the responsible committee (including proposals about transitional provisions) and proposals submitted to the responsible committee or to the parliamentary chancellery by the relevant deadline that have not been recalled before voting. After all proposals have been considered, the person chairing the sitting puts the bill to a vote in its entirety, together with the adopted proposals. If the Saeima does not adopt a bill at the third reading, the bill is returned to the responsible committee and can be resubmitted for the third reading once the new proposals have been collected. If the Saeima receives only an initiative from the State President for legislation, but not the elaborated text of a bill, it decides whether to instruct the particular ministry or its own committee to draft the text of the bill. On the basis of the report of the presidium, the Saeima also decides about initiatives submitted in the form of drafted texts, rejecting them or passing them on to the Saeima’s committees. The State President proclaims statutes passed by the Saeima in the Official Gazette (in electronic form only) Latvijas Vēstnesis (or, in cases of emergency, on TV or radio) no earlier than the tenth day and no later than the twenty-first day after the adoption of the statute. A statute comes into force 14 days after its proclamation (not counting the proclamation day) unless the statute specifies otherwise.10

9 Parliamentary Rules of Procedure. Available in Latvian at: https://likumi.lv/doc.php?id=57517. 10 On Official Publications and Legal Information Law. Available at: https://likumi.lv/ta/en/en/id/249322law-on-official-publications-and-legal-information.

Legislation in Latvia  289 The adoption of a bill is subject to the suspensive veto of the State President and the absolute veto of the citizens of the country. The State President promulgates bills passed by the Saeima, thereby finalising the process of the adoption of the statute. However, the State President can use the suspensive veto in order not to promulgate the bill within 10 days after the Saeima passes it. In order to do so, the President submits a written and reasoned request to the Speaker for the bill to be reconsidered (Article 71 of the Constitution). At its next sitting, the Saeima, without debate, forwards the request to the responsible committee and to other committees, and sets the deadline by which proposals can be submitted and the bill reconsidered. The Saeima is required to repeat only the third reading, but it must only take into account the objections from the State President and the proposals related to these objections. The absolute veto of the citizens of the country can be exercised in accordance with Article 72 of the Constitution. If the promulgation of the bill is suspended by the State President for two months, the bill is put to a national referendum if so requested by no less than one-tenth of the electorate. The bill is rejected if the number of voters is at least half of the number of voters who participated in the previous Saeima elections and if the majority has voted for the rejection of the bill. Alternatively, it has to be proclaimed if such a request of the electorate is not received in the given timeframe. However, the Saeima may vote on the legislative act again and, if no less than three-quarters of all members of the Saeima vote for its adoption, no national referendum takes place. Furthermore, the President cannot request the reconsideration of a bill and the bill cannot be submitted to a national referendum if Saeima decides, by no less than a two-thirds majority, that a bill is urgent.

17.2.2.  Statutes Adopted by a Referendum The people legislate through referenda. Some issues may not be submitted to a referendum: the budget and statutes relating to loans, taxes, custom duties, railway tariffs, military conscription, declaration and commencement of war, peace treaties, declaration of a state of emergency and its termination, mobilisation and demobilisation, agreements with other nations and statutes which are determined to be urgent by at least two-thirds of the Saeima. The Constitution makes a referendum compulsory in six cases: (1) if the Saeima has amended Article 1, 2, 3, 4, 6 or 77 of the Constitution, the amendments must be submitted to a national referendum in order to become law (Article 77); (2) if the State President has proposed the dissolution of the Saeima (Article 48); (3) if no less than one-tenth of the electorate requests a referendum on a statute when proclamation of the statute has been suspended by the State President under Article 72 – however, a referendum will not take place if the Saeima again votes on the law and no less than three-quarters of all members vote for the adoption of the law; (4) if the Saeima does not adopt, without changing the content, a bill or draft amendment to the Constitution submitted by no less than one-tenth of the electorate (Article 78); (5) if a decision must be taken about the issue of Latvia’s membership in the EU or if a decision must be taken about substantial changes to the terms of Latvia’s membership of the EU – there will be a referendum in the second case only if it is requested by at least half of the members of the Saeima (Article 68); and (6) at least one-tenth of voters has initiated the revocation of the Saeima (Article 14). All Latvian citizens with the right to vote in Saeima elections may participate in national referendums. Pursuant to the Constitution, the quorum in the referendum can be counted

290  Daiga Rezevska in two ways: first, for the amendment of the Constitution, the quorum is half of the entire electorate; and, second, in cases (3) and (4) regarding ordinary bills and case (5) as described above, the quorum is half of the number of voters participating in the previous parliamentary elections. A quorum is not required in a referendum instigated after the State President has proposed the dissolution of the Saeima and the question is simply settled by a majority of the citizens voting. Decisions are adopted if at least half of the electorate votes in favour in referendums on amendments to the Constitution and by a majority vote in other cases. Special requirements are provided for the one-tenth of voters-initiated revocation of the Saeima – if the majority of voters and at least two-thirds of the number of voters who participated in the last Saeima elections vote in the referendum regarding the recalling of the Saeima, then the Saeima shall be deemed recalled. The On National Referendum, Legislative Initiative and European Citizens’ Initiative Law11 adopted by the Saeima on 31 March 1994 on the basis of Article 65 of the Constitution regulates the procedure for the initiation of legislation or amendments to the Constitution by one-tenth of voters. No less than one-tenth of eligible voters whose signatures are ascertained by a sworn notary or a local government institution no more than 12 months earlier can submit a fully elaborated bill to the Central Election Commission. An initiative group has to be set up to collect signatures in support of a draft law or draft amendments to the Constitution. The initiative group consists of a political party or association of political parties or an association of at least 10 voters, set up and registered in accordance with the procedures stipulated by the law. The Central Election Commission within 45 days either registers the bill or asks for the elimination of the flaws detected in the submission process, or refuses the registration, for example, if the bill or draft amendments to the Constitution are not fully drawn up in terms of form or content. Thus, this review by the Central Election Commission also involves ex ante review of the draft from the point of view of its conformity with the general principles of law and the Constitution. This decision can be appealed in the Supreme Court. The Central Election Commission counts the signatures, records the result and notifies the State President within three days. The bill or draft constitutional amendment is sent to the State President, who submits it to the Saeima.

17.2.3.  Legislation through Other Legal Instruments The government has the right to issue generally binding regulatory enactments – regulations – but only in the limited number of cases stated in Article 31 of the Cabinet of Ministers Structure Act:12 (1) if the government is specifically authorised to do so by statute – the authorisation must contain a formulation of the gist of the regulations; (2) in order to approve an international agrement or its draft; or (3) if it is necessary for the implementation of the legal acts of the EU and if such a question is not regulated by the law. The regulations must be consistent with the Constitution and statutes. They must also

11 On National Referendum, Legislative Initiative and European Citizens’ Initiative Law. Available at: https:// likumi.lv/ta/en/id/58065-on-national-referendum-legislative-initiative-and-european-citizens-initiative. 12 Cabinet Structure Act. Available at: https://likumi.lv/ta/en/id/175919-cabinet-structure-law.

Legislation in Latvia  291 include a reference to the statute pursuant to which they have been issued. The most usual practice (which is almost universal) is for a statute to delegate the implementation of the statute to the government. The government and individual ministers have the right to issue internal normative acts (that are not generally binding) which are binding upon their subordinate institutions and officials. These internal normative acts have to be in compliance with the general principles of law, generally binding normative acts (laws and regulations) and international law, as well as with the internal normative acts that are issued by a higher institution or official. The right of a minister to issue internal normative acts can also be exercised by an institution, structural unit or official through which the minister implements the subordination of another institution or official. In such cases, the internal normative act has to be coordinated with the relevant minister. An internal normative act is binding on the institution (the units and employees thereof) or on the officials with respect to whom the internal normative act has been issued. The specific actions of a state institution with external effect on the rights and duties of third parties, especially when issuing administrative acts, can be based only on the generally binding legal norms. There are several possible types of internal normative acts13 regulating: (1) the structure and work organisation (rules of procedure) of the institution, collegial body or unit established by the institution; (2) the application of generally binding normative acts or general principles of law (instructions); (3) the exercising of the freedom of action conferred by laws and regulations, by determining uniform action in equal cases (recommendations); and (4) the procedures for the taking of administrative decisions regarding the performance of the duties of officials, regulations regarding behaviour and labour protection in the institution, as well as other issues related to the activities of the institution (internal regulations). The government and a minister in compliance with the generally binding normative acts are entitled to issue administrative acts and make political or administrative decisions. In the performance of their functions, local governments have the right to issue generally binding normative acts in cases prescribed by law: these are binding regulations14 applying to the respective administrative territories. These acts must comply with all other normative acts of higher legal force (including government regulations).

17.3.  The Determination of the Policy and the Goal of the Law The detailed description of the entire process of legislation taking into account the specific types of the normative acts, starting with the determination of the goal of the future normative enactment until its adoption and promulgation, can be found in the Draft Legislation Development Manual.15 The State Chancellery has developed this manual on the basis of different sources of law. The State Chancellery is a central public administration institution directly subordinated to the prime minister. The drafting of legislative acts is usually within 13 State Administration Structure Law. Available at: https://likumi.lv/ta/en/en/id/63545-state-administrationstructure-law. 14 On Local Governments Law. Available at: https://likumi.lv/ta/en/en/id/57255-on-local-governments. 15 Draft Legislation Development Manual. Available in Latvian at: https://likumi.lv/ta/en/en/id/57255-on-localgovernments.

292  Daiga Rezevska the competence of sectoral ministries. The sectoral specialist identifies the problem and indicates its potential solutions by nature, while the ministry’s legal staff evaluate the legal form of the solution and formulate legal norms according to the normative requirements for draft legislation (legal technique), which in turn are determined by the regulations of the government.16 These regulations, for example, state in detail how to choose the title of the draft, which words should be used in specific situations for specific types of drafts (eg, introductory phrases to show the delegation to issue the specific normative act), what are the structural units of the regulatory enactments, how to make references to other normative acts (including acts of the EU) etc. The first stage of the work is to set the task and analyse the problem. At this stage, it is necessary to find out if any changes are needed in the existing regulatory framework, identifying the nature of the problems to be solved or whether it is necessary to establish a new legal institute – a new set of legal norms regulating a specific problem. The aim is not to develop a legislative act, but to solve the problem. Sometimes due to such analysis, the adequacy of the existing legal framework can be established. In that case, the drafting of a new regulatory act is not necessary, but the problem can also be solved by other methods, such as issuing instructions to subordinate authorities to ensure the uniform application of regulatory enactments or to prepare explanations, methodological guidelines or organise the training. The more complex the issue is, the more in-depth analysis of problems and solutions needs to be undertaken. Sometimes the same problem or situation can be solved with different solutions, so it is important to find out if the same goal is possible to achieve by more lenient means, such as a lower administrative burden, less interference in public relationships, fewer restrictions and less resource consumption. The task can already be defined in advance (and most often is), for example, a statutory task (authorisation) to issue regulations of the government or to issue binding regulations of local government. The task may also arise from the judgment of the Constitutional Court, which has identified shortcomings in the legislation, which must be overcome. That is why sectoral ministries have a duty on a regular basis to follow the judgments of the Constitutional Court and to react in a timely manner to the problems specified therein. It is the Constitutional Court that has showed the deficiencies in setting the policy for the draft of normative act before it is adopted by the Saeima. The Constitutional Court has stated that especially in cases where the constitutionality of the norms regulating such a legal relationship has already been assessed by the Constitutional Court, the legislator must ensure a legislative process that promotes trust in the state and law, namely, a legislative process that makes a convincing case that the chosen solution is fair. Thus, when planning to include a new restriction in the law previously already assessed by the Constitutional Court, the legislator has to ensure proper analysis and justification of the constitutionality of such possible regulation, among other things in the context of the established case law of the Constitutional Court. If the legislator repeatedly intends to establish a restriction of fundamental rights, the constitutionality of which has already been assessed by the Constitutional Court, this restriction should be duly assessed and justified by the legislator.17 16 On Drafting of the Normative Acts, Cabinet of Ministers Regulations. Available in Latvian at: https://likumi. lv/doc.php?id=187822. 17 Judgment of the Constitutional Court of 12 April 2018 in Case No 2017-17-01, paras 21.3. and 22.3. Available in Latvian at: www.satv.tiesa.gov.lv.

Legislation in Latvia  293

17.4.  The Drafting Technique The text of the legislative act is formal, general, uniform, unambiguously worded and laconic in style. The basic principles which are to be followed when drafting the bill are: (1) competence – the requirement for the legislator to resolve all issues by way of legislation itself has become difficult to implement in modern society, so the legislator decides on the most significant legislative issues, while authorising the detailed regulation to the Cabinet of Ministers or other state institutions; (2) clarity – the norms contained in the draft law have to be clear and understandable; (3) precision – when drafting the norms of the bill, they have to be precise and accurately reflect the legislators will; (4) brevity – the draft law contains only the norms and words that are needed, and no synonyms are allowed; (5) logical sequence – the legal norms in the bill must be arranged in a logical order starting with the more general and proceeding to the less general; (6) uniform style within the draft enactment and also within the system of laws; and (7) spelling and the use of appropriate punctuation marks.18 Each law has to start with declaring its aim, followed by the definitions of terms used in the enactment. The text of the law has to be divided into a logical breakdown. The basic unit of the legal text is the article. The article can be divided into parts, points and sub-points. In longer laws, articles relating to one regulated issue can be merged into chapters. Chapters can be merged into sections (sub-sections). In extremely voluminous laws (for example, in procedural laws, in the Criminal Law, in the Civil Law and in the Commercial Law), sections may be merged into parts. The law ends with the ‘Transitional provisions’, providing the order for transition from the old regulation to the new, has to be set out, and ‘Informative Reference to European Union Directives’ if the norms of EU directives are implemented by the enactment. The law may make internal references (to other units of the same law) and external references (to legal acts of the same or higher legal force). The external reference simplifies the work of the law-applier and shows the law’s relationship with other parts of the applicable regulatory framework. The internal reference links the norms of the law itself so that the same regulation does not have to written again in several places.

17.5.  The Monitoring and Evaluation of the Law Regulatory impact assessment (RIA) ex ante or before initiating the draft law into the Saeima is presented by the compulsory annotation accompanying the draft. The annotation has to include answers to the following questions: (1) why the law is needed; (2) what impact the law may have on the development of society and the economy; (3) what the impact of the law on the state budget and local government budgets may be; (4) what the impact of the law on the existing legal framework may be; (5) which international obligations of Latvia correspond to the draft law; (6) what consultations have taken place when preparing the draft law; and (7) how the law will be enforced.



18 Draft

Legislation Development Manual (n 15).

294  Daiga Rezevska The impact assessment is carried out before the draft regulatory enactment is drafted or at least at the same time as the draft legislative act is drafted. Impact assessment of a draft legislative act is a set of methods and procedures used to identify a project’s potential impact on the economy, the business environment (including small and medium-sized enterprises, micro-enterprises and start-ups), public and municipal information and communication technology systems, non-governmental organisations, health, territory, the social and natural environment, administrative barriers, state and local government budgets, the existing legal framework and international obligations of Latvia. It also includes the identification of expected results which could be achieved by introducing regulation in the form in which it is submitted for evaluation. The concurrent quality control of a draft legislative act is carried out periodically throughout its development process. Ministries and their legal services have a central role to play in this process. When carrying out the quality control of the elaborated draft regulatory enactment, its compliance with the requirements of legal technique, quality of the content and compliance with language requirements has to be ascertained. When checking the quality of the content, the compliance of the draft enactment with the Constitution, general principles of the law, and international agreements binding on the Republic of Latvia, EU law and other legal acts with higher legal force has to be ascertained. If the case is initiated by the Constitutional Court on the constitutionality of the normative act, the Constitutional Court examines ex post the compliance of the normative act with the Constitution (ex ante assessment is possible only in cases when the conformity of international agreements signed or entered into by Latvia with the Constitution is challenged). The Constitutional Court first ascertains (as the first methodological step) whether the act has been adopted following due process. At this stage, the Constitutional Court examines whether the law has been adopted, promulgated and made publicly available in accordance with the procedures prescribed by regulatory enactments and whether the law is sufficiently clear.19 The legislator enjoys discretion in the legislative process to the extent that the general principles of law and the other norms of the Constitution are not violated.20 The Constitutional Court in its jurisprudence has paid attention to discussions about the draft law with stakeholders. First of all, it has recognised that in a democratic state based on the rule of law, the legislator has to involve the possible addressees of the provision in the discussion of it.21 If the law adopted by the Saeima affects a specific private person, it must hear this person.22 Special requirements regarding the draft laws connected with the judicial power are imposed by the Constitutional Court. The Court has indicated that the principle of separation of powers and the principle of judicial independence lead to the requirement that

19 Judgment of the Constitutional Court of 8 April 2015 in Case No 2014-34-01, para 14. Available in Latvian at: www.satv.tiesa.gov.lv. 20 Judgment of the Constitutional Court of 19 October 2017 in Case No 2016-14-01, para 25.2. Available in Latvian at: www.satv.tiesa.gov.lv. 21 J Pleps, ‘The Principle of Good Legislation’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 22. 22 Judgment of the Constitutional Court of 21 October 2009 in Case No 2009-01-01, para 11.3. Available in Latvian at: www.satv.tiesa.gov.lv.

Legislation in Latvia  295 the legislator, before making decisions regarding the functioning of the courts – in matters relating to the budget and other matters relating to the performance of a court’s functions – must give an opportunity to the judicial power or an independent institution representing the judicial power (if such an institution is set up) to voice their opinion regarding issues affecting the functioning of courts.23 The legislator is entitled not to agree with the opinion of the judicial power; however the legislator must hear it out and must treat it with respect and understanding, while justifying the ‘not agreeing’ or ‘agreeing partially’ decision.24 Moreover, the Constitutional Court has pointed to the scope of justification to be provided by the legislator, namely, if the opinion of the judicial power is not taken into consideration or is taken into account only partially, then the legislator must provide justification for its conduct to such an extent that the court, if it were to evaluate the compliance of the legislator’s conduct (adopted decision) with the Constitution, would be able to retrieve from this justification all the information necessary for examining proportionality.25 On 12 April 2018, for the first time in its existence, the Constitutional Court ­recognised the two laws contested in the case as not adopted according to due process. Both of these laws were declared incompatible with the Constitution.26 In this judgment, the Constitutional Court has offered its view on such a legislative process, which corresponds to a modern democratic state. The legislative process nowadays does not exist for the convenience of the legislator, but serves as an effective mechanism by which public trust in adopted laws and the legislator itself can be promoted.27 The Constitutional Court has pointed out that ‘the legislator must ensure a legislative process that promotes trust in the state and law, namely, the conviction that the chosen solution is fair’.28 It also emphasised that ‘the legislative process [not only] must comply with the formal requirements laid down in regulatory enactments, but also has to promote people’s trust in the state and law’.29 It has based the assessment of such legislative process on the necessity of ensuring justice. In the judgment, it emphasised that ‘the main purpose of the law is to ensure justice’.30 This means that ‘a law adopted in due process in a democratic state based on the Rule of law is first and foremost a law aimed at achieving justice – the ultimate goal of the legal arrangement’.31 The next step in the concretisation of the principle of good legislation was taken by the Constitutional Court in a case in which the decision was delivered on 6 March 2019.32 The Court stated that the principle of good legislation involves among other things that the legislator must assess the compliance of the envisaged legal norms with the legal norms of a higher legal force and their compatibility with the legal system. The intended

23 Judgment of the Constitutional Court of 18 January 2010 in Case No 2009-11-01, para 8.1. Available in Latvian at: www.satv.tiesa.gov.lv. 24 ibid para 24. 25 ibid para 11.5. 26 See n 1 above. 27 J Pleps, ‘The Legislation Process Has to Promote for the Trust of the Society’. Available in Latvian: https:// lvportals.lv/viedokli/299267-likumdosanas-procesam-javeicina-sabiedribas-uzticesanas-2018. 28 Above, nn 1 and 17, para 21.3. 29 ibid. 30 ibid. 31 Dissenting Opinion of Judge Daiga Rezevska of 2 November 2017 in Case No 2016-14-01, para 5. Available in Latvian at: www.satv.tiesa.gov.lv. 32 Judgment of the Constitutional Court of 6 March 2019 in Case No 2018-11-01. Available in Latvian at: www.satv.tiesa.gov.lv.

296  Daiga Rezevska legal framework should, where appropriate, be based on explanatory studies. In adopting legal norms, the legislator, especially in cases where fundamental rights are restricted, has to base its decision on the social impact assessment study of the planned legal framework and consider the measures necessary for the implementation and enforcement of this legal framework, as well as to assess the risks expressed by the specialists in the field. In addition, the legislator must inform the public in a timely manner and appropriately about the intended legal framework.33 Furthermore, the Constitutional Court stated that these requirements are the main but not the only elements of the principle of good legislation derived from the principle of the rule of Law. Among other things, these requirements make it possible to understand why the restriction of fundamental rights set by the legislator in a democratic state based on the rule of law is permissible. They must also be respected in determining any restriction on fundamental rights.34 As a result, the Court declared the contested legal norms as not adopted according to due process and the principle of good legislation, and thereby as incompatible with the Constitution.

17.6.  Training for Drafters Training for drafters is carried out by the State Administration School, where drafting theory, practices and technique is delivered to the civil servants of the ministries. Lectures are offered in cooperation with the Public Law Institute by the highest professionals in the Latvian legisprudence – current and former employees of the Ministry of Justice, the Saeima Legal Bureau and law professors. Summer schools on legisprudence are also organised by the Public Law Institute. The compulsory study course on legal drafting is also a part of the study programme for first-year bachelor programme students at the Faculty of Law at the University of Latvia.

Further Reading D Amoliņa, ‘Legislation and Financial Issues in the State’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 47–56 D Apse, ‘The Influence of Subsidiary Sources of Law on the Quality of Legal Acts in the Legislative Process and the System of National Governance’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 56–69 S Doriņa, ‘The Role of the President in Providing the Quality of Legislation’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 146–56.



33 ibid

34 ibid.

para 18.1.

Legislation in Latvia  297 L Jurcēna, ‘The Role of the Judicial Council in Ensuring Quality of Legal Enactments in Latvia’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 264–73 J Pleps, ‘The Principle of Good Legislation’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 16–26 D Rezevska, ‘The Content of the General Principles of Law and Normative Legal Acts’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 35–47. A Rodiņa, ‘The Ombudsman and the Saeima: Cooperation and Conflicts, Solutions to Them for Ensuring the Quality of Legal Acts’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 384–96 A Smiltēna, ‘Latvian Legal System and Legislator’s Critical Failures’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 405–12 A Spale, ‘Role of the Constitutional Court in Improving the Quality of Regulatory Enactments’ in The Quality of Legal Acts and its Importance in Contemporary Legal Space (Riga, University of Latvia Press, 2012) 412–23

298

18 Legislation in Lithuania JURGITA MALINAUSKAITĖ AND AUŠRINĖ PASVENSKIENĖ

Context This chapter presents the organisation and procedure of law-making in the Republic of Lithuania, with the laws being adopted by the unicameral Parliament (Seimas) in compliance with the Lithuanian Constitution. It also embraces the legislative policy development and complex drafting instruments and techniques, including the intricate Lithuanian language requirements, especially in the context of the harmonisation of the terminology in the draft laws implementing EU law. The chapter also indicates the requirements for the amendment of the legal acts and of the use of references. Finally, it discusses ex ante and ex post monitoring to ensure better regulation, and concludes that further reforms are urgently required in order to close the loop between ex post and ex ante evaluation results in the legislative cycle.

18.1.  Overview of the Lithuanian Legal System The Republic of Lithuania (Lietuvos Respublika) is an independent state with a parliamentary democracy which regained its independence in 1991. After re-gaining its independence, Lithuania introduced major reforms, inter alia, to strengthen its regulatory policy, with the initial focus on reducing the administrative burden and building the foundations for a high-quality rule-making process. The reforms also embraced the introduction of requirements for impact assessments, requirements for consultation of stakeholders and common commencement dates for new legislation. The most significant transformation of Lithuania’s legal framework happened between 1998 and 2004 during the country’s preparation for accession to the European Union (EU), which entailed the alignment of its laws with EU law. During this period, the basic codes, including the Civil Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure, were drafted and adopted, with further revisions occurring a decade later.1

1 S Šedbaras, ‘The Perspectives of the Lithuanian Legal System’ in T Kerikmäe et al (eds), The Law of the Baltic States (Cham, Springer International Publishing AG, 2017) 399.

300  Jurgita Malinauskaitė and Aušrinė Pasvenskienė The Lithuanian legal system belongs to the civil law legal system, with its laws, hierarchically, consisting in descending order of: (i) the Constitution of the Republic of Lithuania (Lietuvos Respublikos konstitucija) – the supreme law of the land; (ii) constitutional laws (konstituciniai įstatymai); (iii) ratified international treaties; (iv) laws (įstatymai) passed by the Seimas; (v) resolutions (nutarimai) of the Seimas and the government (Vyriausybė); (vi) presidential decrees (dekretai); and (vii) orders/acts (įsakymai, aktai etc) of other governmental institutions and local municipal authorities. The principal body of law in Lithuania is statutory, with substantive branches of the law being codified (the Civil Code, the Criminal Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Code of Administrative Offences, the Labour Code, the Road Transport Code etc). The legal foundation of the judiciary and the legal framework is laid down in the Constitution of the Republic of Lithuania adopted in 1992 by a referendum, which also defines the rights, freedoms and duties of citizens. Therefore, all regulatory acts, including laws, must be in compliance with the Constitution. The Constitutional Court of Lithuania has exclusive competence to decide on the compliance of legislation (including acts, resolutions and decrees issued by the government and the President) with the Constitution. As far as international law is concerned, Lithuania is a monist state, so once international treaties or conventions are ratified by the Seimas, they become part of the Lithuanian legal system and enjoy priority over local laws, meaning that their provisions prevail in the event of inconsistency with Lithuanian national legal acts enforced from the moment of ratification of such treaties or conventions (unless indicated otherwise). Most EU directives are transposed into Lithuanian law in lex specialis rather than in lex generalis, as the procedure to amend general laws, such as the codes, is more complex in comparison with specialised law. The European Law Department, which falls under the ambit of the Ministry of Justice of the Republic of Lithuania, has a responsibility to coordinate the transposition and implementation of EU law in the national legal system and to assess the compatibility of national legal acts and draft legal acts with EU law. Pursuant to the Lithuanian Constitution, sovereign state power is vested in the people of Lithuania and is exercised by the Seimas (a unicameral parliament composed of 141 national representatives elected for a four-year term), the President of the Republic, the government and the courts.2 The Constitutional Court, which is not part of the general court system, is an independent judicial body with the authority to determine whether the laws and other legal acts adopted by the Seimas are in conformity with the Constitution, and whether the legal acts adopted by the President and the government conform to the Constitution or laws.

18.2.  The Life Cycle of Legislation: Initiative, Organisation, Procedure, Drafting and Management 18.2.1.  Legislative Initiative According to Article 69 of the Constitution, laws in Lithuania are adopted by the Seimas following the procedure established by law. The right of legislative initiative in the Seimas

2 Constitution

of the Republic of Lithuania, Official Gazette, 1992, No 33-1014, arts 2–4.

Legislation in Lithuania  301 belongs to the following: (i) the members of the Seimas; (ii) the President of the Republic; (iii) the government; and (iv) citizens of the Republic of Lithuania who are entitled to vote.3 The law on the citizens’ legislative initiative4 defines the procedure for the implementation of the citizens’ right of legislative initiative. First of all, an initiative group made up of at least 10 persons eligible to vote must be registered by the Central Electoral Commission.5 Second, the Commission6 then organises the Electronic Information System for signing and sets the deadline for when the signatures must be collected.7 There is a two-month time limit for collecting the required 50,000 signatures of Lithuanian citizens to support a draft, whereas for an initiative to amend or supplement the Lithuanian Constitution, no less than 300,000 signatures of voters should be accumulated within a four-month timeframe.8 If the required number of citizens’ signatures is not collected within the time limit set, a repeat collection of signatures for the same draft initiative can be carried out anew, but it cannot start earlier than six months after the publication of the conclusion of the Central Electoral Commission.9 There is also an opportunity for the President of the Republic, the government or any member of the Seimas to submit the same draft to the Seimas in the event that the initiators fail to implement the legislative initiative.10 However, in practice this initiative is rarely utilised. For instance, from 2000 to 2018, there were only 23 proposals based on this procedure. A draft law (or a draft amending or supplementing that law or a draft amending or supplementing the Constitution) initiated by citizens is considered and adopted at the Seimas in accordance with the general procedure.11 The legislative procedure in Lithuania is regulated by the Statute of the Seimas.12

18.2.2.  Development of Legislative Policy The legislative policy and development is planned by the Seimas and the President according to the approved government action programmes implemented during the term of each government. The legislative bodies plan and submit legislative initiatives via strategic planning documents and publish them in the Legislative Information System. Together with the proposed initiative, they indicate the main rationale and motives for the proposed new legal regulation or proposed amendments of the existing legal regulation, the objectives and purpose of the draft legal act.13 However, in certain cases, legislative initiatives may be exercised even if they were not provided in strategic planning documents. Such an exception can be applied when the proposals are made by the public or individual persons



3 ibid

art 68. of Lithuania Law on the Citizens’ Legislative Initiative, Official Gazette, 1998, No VIII-1003. 5 ibid art 5. 6 ibid arts 6–7. 7 ibid art 8. 8 ibid art 9. 9 ibid art 15. 10 ibid art 16. 11 ibid arts 17–20. 12 Further discussion on this is given in section 18.2.3 below. 13 Republic of Lithuania Law on Legislative Framework, Official Gazette, 2012, No XI-2220, art 8(1). 4 Republic

302  Jurgita Malinauskaitė and Aušrinė Pasvenskienė and in response to a change of important circumstances (eg, legal, economic, social or financial).14 The Ministry of Justice is responsible for constructing state policy in the areas of development of the national legal system and regulation of legal processes, as well as for organisation, coordination and control of the implementation of the state policy.15 The Committee on Legal Affairs of the Seimas considers and makes proposals for developing state legal policy.16

18.2.3.  Legislative Procedure The legislative procedure in Lithuania is regulated by the Statute of the Seimas, which defines the legislative ‘journey’ from the draft to the law.17 According to the legislative procedure, all draft laws and proposals (including any further amendments and supplements) submitted to the Seimas must be registered with the Secretariat of the Seimas sittings.18 The Legal Department of the Seimas delivers conclusions on the registered draft law stating whether (or not) the draft is in compliance with the laws which are already in effect and whether or not it corresponds to the technical rules of law-making. Even though there are no formal stages, the legislative procedure in the Seimas can be divided into four main parts:19 1) 2) 3) 4)

submission of the draft to the Seimas; consideration of the draft law at the principal committee; consideration of the draft law at the Seimas; adoption of the draft law at the Seimas.

During the first stage, the initiators present their draft law at a sitting of the Seimas by defining the objectives of the draft law and answering the questions of members of the Seimas. The Seimas then adopts the decision either to commence the procedure of consideration of the draft, to postpone it or to reject the draft, specifying the motives for the rejection. If the Seimas decides to commence the procedure of consideration, it appoints the principal committee and the additional committee where the draft law is considered further. The Seimas forms committees from among its members for the consideration of draft laws and other issues assigned to its remit by the Constitution.20 The Committees of the Seimas are

14 ibid art 8(2). 15 Statute of the Ministry of Justice of the Republic of Lithuania approved by Resolution No 851 of the Government of the Republic of Lithuania of 9 July, 1998, Official Gazette, 1998, No 63-1618 (wording of 13 October 2010), cl 7. 16 Article 67(1) of the Statute of the Seimas. 17 Seimas of the Republic of Lithuania Statute, Official Gazette, 1994, No I-399 as amended. 18 In the context of a decentralised rule-making process, the Government Office coordinates and supervises the law-making process conducted in ministerial departments. 19 Before the Statute of the Seimas was introduced, there were additional consideration stages (with the first, second and third readings); Supreme Council of the Republic of Lithuania Resolution, Official Gazette, 1991, No I-1241. While the procedure is now less complicated, the abolition of some stages has increased a number of laws being adopted. See also A Lukošaitis, Parlamento institucionalizacija ir teisėkūros procesas: Lietuvos atvejis. Monografija (Vilnius, Vilniaus universiteto leidykla, 2005) 175. 20 Seimas of the Republic of Lithuania Statute (n 17) arts 25 and 43.

Legislation in Lithuania  303 made up of no less than seven and no more than 17 members of the Seimas (with the exception of the Committee on European Affairs, which should consist of 15–25 members)21 according to the principle of proportional representation of the parliamentary groups.22 The second stage involves consideration of the draft law at the principal committee. Over the years, the scope23 and importance of work of the Seimas committees has increased significantly, where the most thorough analysis of the legal act under preparation is made, consultations of specialists in different fields are provided and opinions are heard. For instance, the committees may form preparatory working groups from among their members; these may include other members of the Seimas upon their consent and representatives of state and municipal institutions and agencies, non-governmental organisations (NGOs), higher education and research institutions, experts in particular fields and other persons, making it possible to provide a more diverse representation of views.24 In addition, the Statute of the Seimas now also provides the possibility for society to take an active part in the legislation procedure.25 However, it is not mandatory and the principal committee decides whether (or not) a public consultation should take place. It is not clear how this discretion is exercised by the committee and therefore explicit procedures should be established for public consultation.26 If the principal committee considering the draft law decides to open it up to public consultation, the announcement is made on the website of the Seimas together with a deadline for proposals and observations to be presented by the interested persons.27 Furthermore, the principal committee must send the draft law to all interested state institutions and, if necessary, to public organisations, self-governments, political parties and organisations for their evaluations and to ensure consistency with different laws. The principal committee decisions are adopted by an open, simple majority vote of the committee members participating in a meeting.28 At the third stage, the report of the principal committee (as well as additional reports by other committees) is presented and a general discussion of the basic provisions is held at a sitting of the Seimas. A vote is taken on the amendments to the draft law, which can be presented by persons who have the right of legislative initiative. Finally, the Seimas takes a vote on whether to approve the draft law confirmed by the committee together with the amendments adopted at a sitting of the Seimas. During the final stage, the Seimas can make the following decisions: (i) to approve every article of the law; (ii) to approve the amendments which were presented by the persons having the right of legislative initiative;29 or (iii) to adopt the entire law.30 There is a distinction in the voting for ordinary and constitutional laws. Ordinary laws are adopted if the majority of the members of the Seimas participates in the sitting vote in favour thereof,31 21 ibid art 441. 22 ibid art 44(4)(5). 23 Under the new Statute of the Seimas, which came into effect on 1 February 1999. 24 Seimas of the Republic of Lithuania Statute (n 17) art 48(8). 25 ibid arts 126, 150(1)(4). 26 National Audit Office, Public Audit Report: Legislative Process (2018, No VA-2018-P-40-6-2), https://www. vkontrole.lt/audito_ataskaitos_en.aspx?tipas=15. 27 Seimas of the Republic of Lithuania Statute (n 17) art 126. 28 ibid art 55(1). 29 However, these should be presented 48 hours before the commencement of the Seimas sitting. 30 Seimas of the Republic of Lithuania Statute (n 17) art 155. 31 ibid art 113.

304  Jurgita Malinauskaitė and Aušrinė Pasvenskienė whereas constitutional laws require more than half of all the members of the Seimas voting in favour to be adopted or no less than a three-fifths majority vote of the Members of the Seimas for any amendments of constitutional laws.32 The provisions of laws in Lithuania may also be adopted by a referendum.33 The laws adopted by the Seimas must be signed and officially promulgated by the President of the Republic (or in some cases the Speaker of the Seimas). The President has 10 days34 either to sign and promulgate a law passed by the Seimas, or refer it back to the Seimas for reconsideration. If the President fails to sign (and promulgate) or refer the law back to the Seimas for reconsideration within 10 days, the law is signed and promulgated thereof by the Speaker of the Seimas. The Seimas may reconsider laws that have been referred back by the President and these laws are deemed to be enacted provided that the amendments or supplements submitted by the President were adopted or if more than half of all the members of the Seimas voted in favour of them (ie, in the case of a constitutional law, no less than three-fifths of all the members of the Seimas should vote in favour thereof).35 All legal acts then enter into force on the following day of their official inclusion into the Register of Legal Acts (Teises Aktu Registras (TAR))36 unless a later date is established by the legal act itself.37 The Register of Legal Acts is an electronic register held and managed by the Office of Seimas and is in compliance with Article 3 of the Law on the Legislative Framework which states that law-making must be public in Lithuania. Before Lithuania moved to the electronic database, specifically during the period 1993–2014, laws in Lithuania became effective upon their publication in the Official Gazette (Valstybės žinios).

18.2.4.  Drafting Requirements Drafting legislation in Lithuania is the most challenging part of the process, which is guided by a number of principles that incorporate the imperative requirements for state and municipal institutions and bodies and other parties involved in legislation. The legislative procedure must respect the principles of necessity, proportionality, respect for an individual’s rights and freedoms, openness and transparency, and effectiveness.38 In addition, the prerequisite of clarity requires the legal norms to be logical, consistent, concise, comprehensive, accurate, clear and unambiguous.39 The Constitutional Court in its ruling stressed that in all cases, the laws (or legal acts) must be clear; they must not lead to ambiguities and the concepts must be used clearly and according to their true

32 The Seimas shall establish the list of constitutional laws by a 3/5 majority vote of the Members of the Seimas. See Constitution of the Republic of Lithuania (n 2) art 69. 33 ibid. 34 Five days in the case of amending the Constitution. 35 The President must then sign and promulgate such laws within three days of passing thereof. See Constitution of the Republic of Lithuania (n 2) art 72. 36 See www.e-tar.lt. 37 Republic of Lithuania Law on Legislative Framework (n 13) art 20(1). Pursuant to art 20(2), a law amending the Constitution shall enter into force not earlier than one month after its adoption. 38 ibid art 3. 39 ibid.

Legislation in Lithuania  305 meaning.40 The laws (or legal acts) must construct a uniform and coherent legal system. The system must be systematic, ensuring the consistency between the legal provisions and avoiding the contradiction of lower norms and higher norms. The implementing legal acts of the law must enter into force together with the law or its separate norms which are implemented by these legal acts.41 In order to improve openness and transparency, Lithuania has entrenched electronic means, as all draft laws (and other legal acts) must be drawn up electronically in the Legislative Information System, which makes different versions of the draft laws and related information accessible to the public. Given that drafting legislation is complex and requires wide-ranging knowledge, the law specifies strict requirements for the initiator of the draft laws (or legal acts) and for the formation and operation of working groups (commissions) responsible for the preparation of the draft law. A number of laws entail provisions allowing the initiator to form a working group.42 The laws are traditionally drafted by the members of the working group. The Committee on Legal Affairs of the Seimas then considers the law after it was drafted. If drafting a law (or legal act) requires specific knowledge or skills that cannot be provided by the members of the working group, the initiator can involve the experts to provide the drafting service. The Law on Legislative Framework and the Recommendations for Legal Drafting indicate the requirements for the form and structure of a draft law (or legal act), including elements such as the title of the law, the date of adoption of the law and its number, the place of adoption of the law, the text of the law, and the position, name and surname of the entity signing the law.43 When a norm is modified (or supplemented), the amended (or new) article/paragraph or point of an article of a legal act must be provided, specifying the revoked article/paragraph or point. If more than half of the articles or points are proposed to be amended, the new version of the whole legal act must be presented.44 In the event that there is a point of reference to other legal acts,45 the law provides the special procedure of presentation of these references and what exact information they should entail.46 For instance, it is necessary to indicate the name of the entity that adopted the legal act, the date of adoption, the type of the legal act, and the number and the full title of the legal act.47 When a draft law is submitted to the Seimas, it must be accompanied, inter alia, by the confirmation of its compliance with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the EU documents, and

40 The Constitutional Court of the Republic of Lithuania Ruling on Awarding State Pensions (2000, No 25/98-31/ 98-10/99-14/99-20/99-21/99-22/99-28/99). 41 Republic of Lithuania Law on Legislative Framework (n 13) art 3. 42 Seimas of the Republic of Lithuania Statute (n 17) arts 32(9), 48(8), 165(3), 1812(2); Republic of Lithuania Law on Legislative Framework (n 13) art 10; Republic of Lithuania Law on the Government, Official Gazette, 1994, No I-464, art 28; Republic of Lithuania Law on Local Self-Government, Official Gazette, 1994, No I-533 etc. 43 Republic of Lithuania Law on Legislative Framework (n 13) art 13. 44 ibid art 14. 45 Note that art 12 provides that this has to be limited to a few references. see Recommendations for Legal Drafting approved by Order No 1R-298 on the Approval of Recommendations for Legal Drafting of 23 December 2013 of the Minister of Justice of the Republic of Lithuania, Official Gazette, 2013, No 137-6952. 46 ibid. 47 Republic of Lithuania Law on Legislative Framework (n 13) art 14.

306  Jurgita Malinauskaitė and Aušrinė Pasvenskienė the laws establishing the requirements for the state language and the terminology used.48 All laws (and legal acts) are adopted and announced in Lithuanian. They must comply with the norms of the standard Lithuanian language and legal terminology.49 Strict requirements for the use of national official language arise from both the Constitution and constitutional jurisprudence. The Constitution stipulates that the Lithuanian language is the official language of the Republic of Lithuania,50 with the Constitutional Court confirming that the use of Lithuanian in public life must be ensured by law.51 The Constitutional Court has further noted the necessity of establishing the measures for the protection of the official language.52 This justifies the requirement to evaluate the knowledge of the correct Lithuanian of civil servants.53 It should be noted that quite often, the formal requirements of developing the law (or legal acts) lead to over-complicated constructions and hardly understandable structures.54 Although common words of other languages are not allowed in Lithuanian legal acts, the exceptions might be applied in certain areas – for instance, some Latin words or expressions are traditionally used. If necessary, the word of another language (usually the term) can be indicated in brackets next to the Lithuanian term.55 The concepts and terminology used in the drafts laws (or legal acts) are checked following the procedure established in the Law on Term Bank and its implementing laws.56 If a new entry of term has to be included in the Term Bank, it must be submitted to the Lithuanian Language Commission, which, together with terminology experts and presenters, verifies the entry and makes a decision as to whether to approve it.57 The purpose of the Term Bank is to ensure a consistent usage of the approved terms of the Lithuanian language, particularly those used in the legal acts of the Republic of Lithuania. Failure to follow the rules of the Term Bank leads to administrative liability.58 The Term Bank is expanded on average with 1,000 new terms of legal acts each year.59 Finally, there is a special procedure for the harmonisation of the language in the draft laws (or legal acts) implementing EU law in the Lithuanian language, which is coordinated by the State Commission of the Lithuanian Language. The latter noted that the language of documents prepared by the EU institutions has a negative impact on the Lithuanian language, mainly due to complicated administrative variants of the EU official languages, which are quite often formed spontaneously.60 The most urgent issues with regard to the terminology of the laws implementing the EU law are addressed with the 48 Seimas of the Republic of Lithuania Statute (n 17) art 135(3)(9). 49 Republic of Lithuania Law on Legislative Framework (n 13) art 13(2). 50 Constitution of the Republic of Lithuania (n 2) art 14. 51 The Constitutional Court of the Republic of Lithuania Ruling on the spelling of names and family names in the passports of citizens of the Republic of Lithuania (1999, No 14/98). 52 ibid. 53 Republic of Lithuania Law on the State Language, Official Gazette, 1995, no I-779, art 21. 54 R Vladarskienė, ‘Teisės akto formos įtaka jo kalbai’ (2006) 86(8) Jurisprudencija 55. 55 Above n 45, art 6(2). 56 Republic of Lithuania Law on Term Bank, Official Gazette, 2003, No IX-1950; Methodology of the Term Bank of the Republic of Lithuania, approved by Resolution No N-1 (90) of the State Commission of the Lithuanian Language of 2 February 2004, Official Gazette, 2004, No 7-129. 57 Republic of Lithuania Law on Term Bank, Official Gazette, 2003, No IX-1950, art 11. 58 ibid art 13. 59 The State Language Policy Guidelines 2018–2022 approved by Decision No XIII-1318 of the Seimas of the Republic of Lithuania of 27 June, 2018, TAR, 2018, No 10879. 60 ibid.

Legislation in Lithuania  307 help of a single window system.61 The current State Language Policy Guidelines 2018–22 have stressed the necessity of ensuring the quality of the language of the documents. One of its key tasks is professional development of Lithuanian specialists working in the area and closer cooperation between the translators and interpreters of the EU and Lithuanian institutions.

18.2.5.  Training for Drafting of Laws While commenting on the skills of legislative drafters, Crabbe noted that it is ‘a highly technical discipline, the most vigorous form of writing outside mathematics’.62 Therefore, the drafting of laws is a complex process which requires specialised skills. Laws in Lithuania are mainly drafted by civil servants. The Law on Civil Servants63 regulates basic principles of the public service, the status of civil servants and the legal basis of the public service, and provides the framework for the creation of the system of training of civil servants in Lithuania. Initially, the Programme for Better Regulation64 was also set up in Lithuania in 2008, which contained a provision of the need for training of civil servants on the issues of Better Regulation policy and its implementation. Yet, this programme has had little impact on the Lithuanian system, except for the two new laws: the Law on Legislative Framework65 and the Law on Reduction of Administrative Burden.66 There is currently no uniform central system to conduct this type of training. Preparation of draft laws (or legal acts) and their evaluation are assigned to various specialists of the ministries. It has been reported that there are insufficient training sessions conducted for specialists across different ministries. For instance, during the conducted audit of the period 2014–17, only 10 per cent of all specialists were trained in the required field. Therefore, imperfect knowledge in the sphere of the drafting techniques quite often leads to gaps in the legislation, with its negative consequences often being revealed only after the adoption of the law.67

18.3.  Monitoring of the Law in Terms of Quality 18.3.1. Overview The purpose of the legislative process regulation in Lithuania is to create a unified, coherent, sustainable and effective legal system based on necessity, proportionality and respect for 61 On the Approval of the Description of the Procedure for Harmonising the Terms Used in Draft Legal Acts of the European Union in the Lithuanian Language Approved by Resolution No 998 of the Government of the Republic of Lithuania of 7 July, 2010, Official Gazette, 2010, No 84-4417. 62 V Crabbe, Legislative Drafting (London, Cavendish Publishing, 1993) 16. 63 Republic of Lithuania Law on Civil Service, Official Gazette, 1999, No VIII-1316. 64 Programme for Better Regulation Approved by Resolution No 185 of the Government of the Republic of Lithuania of 13 February, 2008, Official Gazette, 2008, No 29-1024 (expired in 2015). 65 Republic of Lithuania Law on Legislative Framework (n 13). 66 2012, No XI-2386. See EA Vitkutė, ‘EU Initiative of Better Regulation and its Status in Lithuania’ (2014) 8 European Integration Studies 28. 67 See www.vkontrole.lt.

308  Jurgita Malinauskaitė and Aušrinė Pasvenskienė individual rights and freedoms, openness and transparency, efficiency, clarity and systematic principles. Legislative process in Lithuania is regulated by the Law on Legislative Framework, which imposes certain requirements – for instance, while drafting legislation (legal acts) to assess the impact of the envisaged legal regulation and all potential alternatives of envisaged legal regulation – in order to ensure the necessity and appropriateness of the existing legal regulation as well as its monitoring and providing for public consultation.68 For instance, when the transposition of EU law has taken place, all the possible alternatives must be considered and a solution in the best interests of Lithuania must be chosen.69 The Constitutional Court has recurrently expressed the view that the rule of law is the very essence in the Lithuanian legal system, with all entities (including any law-makers) being bound by law. This principle shall be strictly followed when creating and implementing the law.70 The institutional responsibility for regulatory oversight is spread out across different institutions. The three ministries are responsible for the assessment of legal regulation, but their competences are not mutually inclusive. The Ministry of the Economy coordinates initiatives on the assessment of administrative burden on economic operators, whereas the administrative burden on citizens and other persons falls into the ambit of competence of the Ministry of the Interior. Finally, the Ministry of Justice is in charge of coordinating and supervising the law-making process. Therefore, it has been noted that this institutional decentralisation and fragmentation of responsibilities limits the capacity to develop further Better Regulation policies.71

18.3.2.  Ex Ante and Ex Post Monitoring The Law on Legal Framework primarily defines ex ante and ex post monitoring. There is some confusion in terms of monitoring (stebėjimas) and evaluation (vertinimas) in Lithuanian laws. Scholars in Lithuania seem to agree that the actual ex post monitoring process is not clearly defined and is largely intertwined with ex post evaluation.72 Specifically, Article 15 of the Law on Legal Framework,73 which is devoted to ex ante monitoring provides that the drafting and adoption of legislation should be based on reasonable, reliable and comprehensive information about the expected impact of proposed laws, the likely positive and negative effects on the relevant sector and on persons or groups thereof in respect of whom the proposed legal regulation will apply, as well as its effect on the economy, the public finances, the social environment, the public administration, the legal system, crime and corruption, the environment, the administrative burden, regional development and other relevant areas. The Statute of the Seimas74 also requires that any 68 Republic of Lithuania Law on Legislative Framework (n 13) arts 7, 15, 24. 69 ibid art 9(2). 70 See, eg, Constitutional Court of the Republic of Lithuania Ruling on the procedure for adopting the legal acts of the Government (2016, No KT22-N11/2016, Case No 6/2016). 71 OECD, Regulatory Policy in Lithuania: Focusing on the Delivery Side (Paris, OECD Publishing, 2015). 72 D Bublienė et al, Teisinio Reguliavimo ex post vertinimo perspektyvos Lietuvoje (Vilnius, Teisės institutas, 2017). For consistency, this chapter will use both terms interchangeably. 73 Republic of Lithuania Law on Legislative Framework (n 13) art 15(2). 74 Seimas of the Republic of Lithuania Statute (n 17) art 135(3).

Legislation in Lithuania  309 draft laws (either initiated by the government or the Seimas) have to be accompanied by an Explanatory Note, which, inter alia, should include the objectives of proposed laws, its overall impacts, the potential impact on crime and corruption, and on business conditions and business development, and the amount of the state budget to be spent (or saved) for its implementation. This note also lists the institutions and stakeholders consulted during the preparation of the draft process. Finally, there are also the methods and procedure established by the government for impact assessment of the proposed laws,75 where the impact assessment principles and terms of the assessment process are defined together with a detailed questionnaire.76 The important aspect of this document is the ability to prioritise some proposed laws. Only prioritised initiatives entail more in-depth analysis, whereas the remaining initiatives are assessed in a cursory manner.77 Unfortunately, in practice the government allocated 19 legislative initiatives as a priority in 2012, yet the number decreased to nine in 2015 and to seven in 2016. This list was not adopted in 2017.78 There is currently no procedure on how legislative initiatives are prioritised (or in most cases not prioritised). Possible alternatives to legal regulation are not provided. With regard to the transposition of EU law, the European Law Department has the power to evaluate compliance of draft laws implementing EU laws with Better Regulation, especially in the context of the reduction of the administrative burden. Yet, these evaluations are quite often based on an ad hoc basis.79 Therefore, most EU initiatives are transposed verbatim without identifying necessary measures for the transposition and without properly assessing existing national regulations that deal with similar issues. Furthermore, the Statute of the Seimas also provides for draft laws to be considered under urgent or extra-urgent procedures to react promptly to situations requiring quick solutions.80 However, the Statute does not define any detailed criteria for the rationale of this procedure. Therefore, the system is currently largely abused, as urgent or extra-urgent consideration procedures are regularly employed in Lithuania in approximately 50 per cent of all consideration cases (ie, with almost 70 per cent of requests for urgent or extra-urgent consideration procedures coming due to lateness in the transposition of the EU directives into national law).81 Indeed, during the 2014–17 period, Lithuania delayed the transposition of 54 per cent (108 out of 199) of EU directives due to a failure to prepare drafts of laws and other legal acts transposing EU directives in time.82 Clearly, this means that the excessive application of emergency procedures could undermine the openness of the legislative process, could reduce the transparency of the whole process and could fail to ensure the

75 Prospective Regulatory Impact Assessment Methodology, Approved by Resolution no 276 of the Government of the Republic of Lithuania of 26 February, 2003, Official Gazette, 2003, No 23-975. 76 There it is noted that impact assessment should be made using the quantitative technique (ie, cost-benefit and cost-effectiveness analyses as well as other techniques, such as the simulation model, statistical analysis and regression analysis). 77 A Limantė, ‘Teisėkūros tobulinimo keliu: teisės aktų vertinimas, jo rūšys bei plėtotė’ (2017) 94(2) Teisės problemos 36. 78 ibid 37. 79 OECD (n 70) 150. 80 Seimas of the Republic of Lithuania Statute (n 17) arts 162–64. 81 Above n 67. 82 National Audit Office (n 26).

310  Jurgita Malinauskaitė and Aušrinė Pasvenskienė required level of assessment due to the decreased opportunities of the parties concerned and the public to take part in the legislative process. Ex post monitoring in Lithuania was introduced only in 2009, when the government published its resolution on Monitoring of Legal Regulation.83 This has been replaced by the Law on Legal Framework with more detailed information spelled out in the government’s resolution on the Description of the Procedure for Conducting the Monitoring of Legal Regulation, which defines the monitoring objectives, terms and conditions. The monitoring is usually conducted by state and municipal institutions within their ambit of competence; in addition, ad hoc working groups may also be set up for ex post reviews84 to represent the views of other institutions, NGOs, academics, think tanks, interest groups and other stakeholders.85 Overall, there are no strict requirements for stakeholders’ engagement in regulatory reviews and the composition of the working groups falls under the ministries’ discretion. While some legal acts may provide an obligation to carry out the monitoring of legal regulation, traditionally, the monitoring is conducted where necessary following assessment of the relevance and any issues encountered.86 The monitoring of legal regulation embraces assessing the following: (1) the effectiveness of measures defined in legal acts and their ability to meet the objectives of legal regulation; (2) the positive and negative effects of legal regulation on the regulated sector and other areas (the economy, state finances, the social environment, the public administration, the legal system, the crime situation, the level of corruption, the environment, the administrative burden, regional development etc) and on persons or groups thereof; (3) the direct and indirect benefits of legal regulation and its beneficiaries; (4) consistency of consequences of legal regulation and the planned objectives and consequences; (5) the need for amending legal regulation or waiving it.87 In practice, the Audit Institution reported that from 2014 to 2017, the Lithuanian state institutions failed to assess in their planning the relevance and issues of legal regulations,88 and therefore the monitoring was not systemic and did not link to the governmental priority and other strategic goals of the state as well as to the regulation of relevant public relations (protection of health, education etc). During the period 2014–16, only 47 (0.06 per cent) out of 84,000 valid legal acts in Lithuania were subject to regulatory monitoring performed by state institutions.89 Pursuant to the conclusion provided by the Institute of Law, ‘in almost all cases, regulatory monitoring is carried out only formally, but not in order to find out the true, real effect of the legal acts’.90 To conclude, Limantė argues that both ex ante and ex post monitoring practice in Lithuania should be reformed.91 Even though requirements for ex ante monitoring are in place, regulatory impact assessment (RIA) in practice is very limited and is mainly used 83 Monitoring of Regulatory Legal Acts Approved by Resolution No 404 of the Government of the Republic of Lithuania of 13 May, 2009, Official Gazette, 2009, No 59-2294. See also A Andruškevičius, D Kriaučiūnas and G Lastauskienė, ‘Atsakingas valdymas’ in E Kuris (ed), Krizė, teisės viešpatavimas ir žmogaus teisės (Vilnius, Vilniaus universitetas, 2015) 94–97. 84 Republic of Lithuania Law on Legislative Framework (n 13) art 24(1). 85 Above n 70, 103. 86 Republic of Lithuania Law on Legislative Framework (n 13) art 24(2). 87 ibid art 23. 88 ibid; this is required by art 24(2). 89 National Audit Office (n 26). 90 Above n 71. 91 Limantė (n 77). Limantė uses the notion of ‘evaluation’.

Legislation in Lithuania  311 to justify the choices made. The preparation of RIA should start early on in the decisionmaking process, while simultaneously stressing clearer emphasis on screening tests for priority legislative initiatives.92

18.3.3.  The Supreme Audit Institution Lithuania also has the Supreme Audit Institution, which conducts state audits in the legal regulation upon request. The goal of the audit is to assess whether the applicable legislative (law-making) process ensures the necessary preconditions for the creation of a unified, coherent, sustainable and effective legal system. Specifically, it checks whether the applicable assessment of legal regulation has taken place that make it possible to test the relevance of legal regulation and identify the need for change (if necessary), and whether appropriate procedures are in place in the preparation and adoption of laws. The Supreme Audit Institution can conduct audits to evaluate broader aspects, such as ‘Legislative Process in Lithuania’,93 or more specialised aspects, such as the evaluation of regulations in the specific sector.94 The Supreme Audit Institution then publishes a report with some recommendations and a plan for the implementation of the recommendations. Therefore, this authority provides an additional monitoring mechanism in Lithuania.

18.4.  Concluding Remarks Since re-gaining its independence from the Soviet Union, Lithuania has taken steps to build and improve its law-making process in order to create a unified, coherent, sustainable and effective legal system based on the necessity, proportionality and respect for individual rights and freedoms, openness and transparency, efficiency, clarity and systematic principles. Positive steps have been taken to embed these principles into the Lithuanian system. For instance, the legislative initiative right can be exercised not only by the members of the Seimas, the President of the Republic and the government, but also by Lithuanian citizens, involving the public in the legislation process. To ensure transparency, clarity, coherence and openness, the Seimas Committee during the consideration stage must send the draft laws to all interested state institutions and, if necessary, public organisations, self-governments, political parties and organisations for their evaluations and to ensure consistency with existing laws. While there is now a possibility for a public consultation, it is not mandatory and falls under the relevant committee’s discretion. Lithuania’s transition to electronic means, such as the Legislative Information System (which allows different versions of the draft laws and related information to be made public) and then the Register of Legal Acts (TAR – a database of all laws and legal acts in Lithuania)95 have also improved the visibility and accessibility of laws to the public. 92 ibid. 93 This audit covered the period 2014–17. See National Audit Office (n 26). 94 National Audit Office, Public Audit Report: Are There Conditions in Place for the Effective Functioning of the Internal Control System in the Public Sector (2017, No VA-P-50-3-6), https://www.vkontrole.lt/audito_ataskaitos_ en.aspx?tipas=15; National Audit Office, Public Audit Report: Is Housing Affordable for Low-Income Residents (2017, No VA-P-30-1-4), https://www.vkontrole.lt/audito_ataskaitos_en.aspx?tipas=15. 95 It also contains all amended versions.

312  Jurgita Malinauskaitė and Aušrinė Pasvenskienė While there are various measures in place in the Lithuanian legislative cycle to improve legislation, further advancements are urgently needed. Given that the Seimas receives on average 700 draft laws annually, which is two to four times higher than the neighbouring countries (compared to 200 for Estonia, 338 for Poland and 417 for Latvia),96 detailed assessment of drafts and consultations quite often does not taken place, with RIA being simply exercised to justify the choices made. Urgent or extra-urgent consideration procedures to embrace quick solutions are currently over-utilised in Lithuania, which undermines the openness of the legislative process, diminishes the transparency of the whole process and may not ensure the required level of assessment due to the decreased opportunities of the parties concerned and the public to take part in the legislative process. Insufficient training of civil servants in the domain of complex drafting techniques quite often leads to gaps in the legislation, with its negative consequences being revealed only after the adoption of the law. Yet, ex post monitoring is currently executed fragmentally, without achieving its goals, without achieving its goals. This is mainly due to the lack of a proper link between ex post and ex ante evaluation results. This in turn reinforces the idea that the findings of the ex post evaluation often do not materialise in the next step of the legislative cycle. Therefore, Lithuania should take further steps to shift from its current emphasis on quantity to quality, aiming for ‘better regulation with less legislation’.

Further Reading R Bakševičienė, ‘Diskrecija vykdant teisėkūrą Lietuvoje’ (2014) 90 TEISĖ 19–31 ——. ‘Nūdienos Teisėkūros Proceso Reglamentavimo Lietuvoje ir jos Veiksmingumo Santykis’ (2017) 103 TEISĖ 147–56 T Kerikmäe, K Joamets, J Pleps, A Rodiņa, T Berkmanas and E Gruodytė, (eds), The Law of the Baltic States (Cham, Springer International Publishing AG, 2017) G Lastauskienė, ‘Teisės tikslai – spekuliacijos įrankis ar argumentavimo priemonė?’ (2010) 77 TEISĖ 20–33 B Pranevičienė, ‘Legislative Discretionary Powers of the Executive Institutions in the Field of Regulation of Higher Education in Lithuania’ (2011) 18(2) Jurisprudencija 547–60 J Prapiestis and M Girdauskas, ‘Lietuvos Aukščiausiasis teismas baudžiamojoje teisėkūroje’ (2013) 88 Teisė 7–22 V Sinkevičius, ‘Delimitation of the Powers of the Seimas and the Government: Some Aspects of Constitutional Doctrine’ (2010) 119(1) Jurisprudencija 43–68 ——. ‘Teisinės pasekmės, kurias sukelia Konstitucinio Teismo konstatavimas, jog įstatymas ar kitas teisės aktas prieštarauja Konstitucijai’ (2014) 21(4) Jurisprudencija 939–56 CF Szymanski, T Berkmanas, E Gruodytė and J Kiršienė (eds), Introduction to Lithuanian Law (Vilnius, Justitia) H Šinkūnas and R Svetikaitė, ‘Respublikos prezidento įgaliojimai įstatymų leidybos procese’ (2017) 105 Teisė 22–36



96 National

Audit Office (n 26) 5.

19 Legislation in Luxembourg VOLKER HEYDT

Context Luxembourg is a state with a high respect for the rule of law and is committed to respecting European and international law. The substance of legislation is prepared by the government and adopted by the Parliament with the powerful participation of the Council of State and an institutionalised consultation with the professional chambers. A new constitution further reducing the attributions of the Grand Duke in favour of the structure of modern democracies has been discussed for many years. The process of legislation is highly advanced in terms of the use of electronic means. The laws are published, in electronic form only, in the re-organised Official Journal (Mémorial A). The whole body of law is freely accessible in the Legilux database.

19.1.  Luxembourg: A State since 1815 The Grand Duchy of Luxembourg, part of the former Spanish/Austrian Netherlands, became a sovereign state by Articles 67–68 of the Final Act of the Congress of Vienna. The 1838/1839 London conference1 fixed its current boundaries implying a considerably reduced territory. Luxembourg is a constitutional monarchy; the personal union with the Netherlands ended in 1890 due to different gender succession rules. The neutrality internationally established and guaranteed by the 1867 Treaty of London2 was abandoned after the Second World War, allowing Luxembourg to be a member of NATO. Luxembourg entered into an economic union with Belgium in 1921; the common currency with

1 Instruments signed in London on 19 April 1839, namely the Treaties between the Netherlands on the one hand and Austria, France, Great Britain, Prussia, Russia, on the other hand, between Belgium on the one hand and Austria, France, Great Britain, Prussia and Russi, on the other hand, as well as between Belgium and the Netherlands; the Act of Accession of the German Confederation (all published in Staatsblad n° 26, 1155–63 (in Dutch and French), Moniteur belge n° 172 of 21 June 1839 (in French), Mémorial législatif et administratif du Grand-Duché de Luxembourg, 1839, 54–91(in French and German)). 2 Treaty of 11 May 1867 between the Netherlands/Luxembourg, Austria, Belgium, France, Great Britain, Italy, Prussia and Russia (Mémorial 1867, 134–37).

314  Volker Heydt Belgium (since 1921, reinstated in 1944) has been replaced by the euro. This small country has played a major role in the political development of Europe after the Second World War, in particular as one of the founding Member States of the Council of Europe and of the European Union (EU). The current Constitution of 1868 was built on the Belgian Constitution of 1831 and has also taken on board the liberal elements of the 1848 popular movement. It has since undergone considerable changes by many modifying acts, the first of which, however, came about in 1919 only (inter alia, introducing the voting right for women), but amendments became much more frequent after the Second World War. After some failed attempts for a new constitution, the current process for a recast started in 2009, but could not be brought to a positive result due to political differences. Henceforth the strategy has been the piecemeal revision of the Constitution. The following analysis is likely to be considerably affected in the years to come by the ongoing discussion about the changes of the Constitution. The following analysis is likely to be considerably affected by the future constitution and will have to be reviewed once its final text is adopted.

19.2.  What is the Meaning of Law in Luxembourg? As in states in general, ‘law’ in Luxembourg means in the first place the national rules enacted by Luxembourg institutions. But, unlike in many other states, rules made by European and international institutions are also explicitly recognised as having a hierarchically higher value than national rules. The adherence of Luxembourg to the rule of law is shown, inter alia, by the fact that the publication of the Constitution, on the government’s website, consists mainly of judgments interpreting specific articles and concepts of the Constitution, amongst them the commitment to general principles of law. The jurisprudence of the tribunals, in particular of the Constitutional Court and of the European Court of Human Rights, plays a considerable role in the interpretation and application of law. EU rules are considered hierarchically superior and take precedence over any national rules. In addition, international treaties which Luxembourg has ratified prevail over national rules. This is coherent with the constitutional requirement that the approving instrument must be adopted by two-thirds of Members of Parliament. A further confirmation for the strong commitment to the respect of international law, even if the result is the non-application of national rules, is contained in Article 118 of the Constitution, which stipulates that the provisions of the Constitution are not an obstacle to the approval of the Statute of the International Criminal Court. The following main categories/types of national rules3 can be distinguished in hierarchical order: • The Constitution, as well as rules which are adopted in the same special legislative procedure as amendments to the Constitution. • Ordinary laws – rules adopted by the Parliament

3 The supremacy of and submission to international and EU law follows from the fact that the respective rule-making procedures of non-national bodies have been approved by national legislation.

Legislation in Luxembourg  315 • Grand Ducal regulations (règlements grand-ducaux), adopted on the basis of either: ○ the Grand Duke’s general executive power provided for in the Constitution (Article 36); or ○ the empowerment for subordinate legislation (habilitation) contained in a law in a subject matter for which the Constitution requires a law (Article 32, paragraph 3). • Governmental or ministerial regulations (règlements gouvernementaux ou ministeriels), which are made on the basis of powers conferred by the Grand Duke. These national rules are collected in the Legilux electronic database, which contains the publications in the Mémorial A and also metadata on the rules. Legilux distinguishes further types, in partly pragmatic categories, of which ‘arrêté grand-ducal’ (Grand Ducal orders or decisions) and ‘directives UE’ (EU directives) are of interest here. In early 2019, the following rounded number of acts were contained in this database: Laws:

8,200

Grand Ducal regulations

13,000

Ministerial regulations

5,800

Grand Ducal orders/decisions

6,700

EU directives

2,200

EU regulations, which are directly applicable in EU Member States, are not referred to in the database, not even if they require further implementation by the national legislator. They are considered, in line with the judgments of the European Court of Justice, to be superior to national law.

19.3.  Organisation and Procedure of Legislation 19.3.1.  The Main Institutions The main institutions involved in the national legislation are: • the Grand Duke, acting in concert with, and depending on the approval of, the government; • the Chamber of Deputies; • the Council of State. In addition, the professional chambers are part of the legislative procedure. The Grand Duke (Grand-Duc) as the Head of State has a representative role, but he is also the head of the executive. Moreover, he has the right to initiate the legislative procedure and to promulgate adopted laws; even justice is served in his name. After a change in the 1868 Constitution in 1919, it is now the nation, and no longer the Grand Duke, that holds the sovereign power in the state (Article 32, paragraph 1). The role of the Grand Duke will be further reduced by the ongoing constitutional changes, even though the government had preferred that he formally remain in a more visible position than the proposition of the Chamber suggests; he will instead be denominated by his function

316  Volker Heydt as Head of State (Chef d’État). In any case, there is no question of abandoning the monarchy, as the Grand Ducal monarchy is very popular with the public.4 In order to fulfil his function as head of the executive, the Grand Duke appoints the Prime Minister and the ministers who are either acting together as government council (gouvernement en conseil) or individually. Although the Grand Duke has the constitutional right to choose the government according to his preference, he makes his decision based on the political majority or coalition in the Chamber of Deputies.5 The Chamber of Deputies (Chambre des Députés), composed of 60 members and elected for five years on a proportional system, is the central legislative institution. It enjoys all the prerogatives of a parliament in a parliamentary democracy. There is no second chamber. The Council of State6 plays an important role in the legislative procedure and functions to a certain extent as a second chamber. Its former additional task as the final jurisdiction of judicial appeal in the legal control of acts of the public administration has been abandoned with the establishment of the administrative tribunals. The Council of State is composed of 21 members, 11 of which at least must have a master’s degree in law. They are nominated by the Grand Duke on a proposal from, in alternating order, the government, the Chamber and the Council of State. The function of a Councillor of State ends automatically after a period of 12 years. The Council of State participates in all laws by delivering an opinion on questions of substance and form, ie, the compliance of draft legislation with the Constitution and other laws, and on formal aspects of drafting and legislative techniques, including grammar and typography. The Council of State is also involved in the adoption of regulations, if the respective powers given to the Grand Duke/government in the law are designed correspondingly. Moreover, the Council of State may be consulted, or actively request to be consulted, on any other question. The five professional chambers, which comprise five branches (agriculture, trade, handicraft, employees and civil servants) as institutions of public law,7 are requested to give their opinion by virtue of an ordinary law. The chambers represent the different professions. Their members are elected by the citizens on the basis of respective lists kept by the local authorities. The chambers adopt the rules for their internal organisation.

19.3.2.  The Procedures According to the linguistic regime, all legislation is made in French, notwithstanding the fact that Luxembourgish is the national language and that the public may use all three languages that are spoken in the country (Luxembourgish, German and French).8

4 A former attempt to change Luxembourg into a republic failed; in a referendum in 1919 on this question, the population voted overwhelmingly in favour of the monarchy. 5 Arrêté royal grand-ducal du 9 juillet 1857 portant organisation du Gouvernement grand-ducal (Mém n° 25 of 16 July 1857), last amended by Arrêté grand-ducal du 5 décembre 2018 (Mém B n° 3629). 6 Loi du 16 juin 2017 sur l’organisation du Conseil d’Etat (Mém A n° 592). 7 Loi du 4 avril 1924 portant création de chambres professionnelles à base élective (Mém A n° 21). 8 Loi du 24 février 1984 sur le régime des langues (Mém A n° 16).

Legislation in Luxembourg  317

19.3.2.1.  The Ordinary Legislative Procedure The Grand Duke/government and the Chamber may both initiate the legislative procedure by respectively tabling a bill (projet de loi) or a law proposal for a law (proposition de loi). A legislative initiative by a qualified number of citizens does not exist so far, but the constitutional revision under discussion provides for rules according to which the Chamber would be obliged to publicly discuss a request for legislation if it is presented by 125 and supported by 12,500 members of the public who are entitled to vote. The majority of legislative initiatives are bills. They are prepared by the competent ministry (there is no special drafting service) and are discussed in, and endorsed by, the government. Since under the Constitution it is only the Grand Duke who may present a bill to the Chamber, he authorises the government or the competent minister (by individual Arrêté Grand-Ducal de dépôt for each bill) to present the bill in his name. Efforts are being made to change the Constitution in a way as to enable the government to present bills in its own right. The professional chambers also have the right to start a legislative initiative in their respective field of competence, which the government is then obliged to submit to the Chamber of Deputies. However, this right is currently not employed in practice. The bill is accompanied by an explanatory memorandum (exposé des motifs), a commentary on each article, a financial impact assessment and, since 2011, a detailed regulatory impact assessment. The latter consists of a form with questions in sub-sections on ‘Better Regulation’, gender equality and transborder services. Any instructions on how to use and fill in this form have not been published. The bill, which is publicly accessible together with the accompanying documents, is transmitted to the President of the Chamber by the Prime Minister’s office (Ministère d’Etat); at the same time, it is sent to the Council of State and to the competent professional chamber(s) for an opinion. A special department in the Prime Minister’s office, the Service central de législation, functions as the central intermediate unit for the contacts between the different institutions involved in the legislative process and takes care of the transmission of the legislative texts and the corresponding opinions. Law proposals stemming from the Chamber are often made by deputies of the political opposition; they are normally not accompanied by a regulatory impact assessment. Each individual parliamentarian has the right to table a proposal and also to withdraw it, until the so-called first constitutional vote9 takes place. After a declaration of formal admissibility by the Chamber, its President transmits the proposal to the government, the responsible member of which submits it to the Council of State for an opinion. After consideration in the responsible parliamentary committee and after having received an opinion from the Council of State and from the involved professional chambers, the Chamber adopts the law by the first constitutional vote. This is taken by a majority of votes whereby each deputy can get a proxy from another deputy, but may not get a proxy from more than one other deputy. The second vote must not be taken before three months; however, it can be dispensed with if it is considered by the Chamber, in agreement with the State Council, not to be necessary. This power of approving or disapproving the waiver of the second vote shows the important

9 ‘Constitutional vote’ means the first of the two votes required by the Constitution for the adoption of a law, in contrast to other votes of the Chamber, eg, in commissions or on individual items or articles in a draft law.

318  Volker Heydt role of the Council of State. In its opinion, a distinction is made between suggested changes, which the Council of State formally requests to be made for constitutional and legal reasons, and those which are only recommended, inter alia, for drafting aspects. If the Chamber proceeds to a first constitutional vote without following the requested changes, the Council of State will obviously not agree with a waiver for the second vote on the law. The adopted law is promulgated by the Grand Duke and countersigned by the competent minister. It is published in the Mémorial A, which is administered by the Service central de legislation. A referendum by the citizens is possible, if provided for by a specific law; the Constitution itself contains such provision only for a modification of the Constitution. A referendum on a legislative text must be distinguished from a referendum on specific questions put to the population by a law10 in order to provide guidance for the legislator, as has been the case in the context of the preparation of the new constitution.

19.3.2.2.  Changes of the Constitution Constitutional modifications (Article 114 of the Constitution), which had become more frequent in recent years, may be initiated, like ordinary legislation, by the Grand Duke/government or by the Chamber of Deputies; traditionally, constitutional changes have originated in proposals from the Chamber. The legislative procedure provided for changes in the Constitution, including the adoption of a completely new constitution, is qualified by the special condition that the Chamber must vote two times on the same text, with an interval of at least three months,11 and by a two-thirds majority where no vote by proxy is allowed. This qualified majority of two-thirds is required not only for explicit modifications of the text of the Constitution, but also for some laws affecting constitutional principles, eg, the transfer of legislative, executive or judicial powers to supranational or international bodies; the respective Article 49 bis was inserted in 1956 with regard to the establishment of the European Communities. In agreement with the Council of State, a second vote can also be waived by the Chamber.12 However, a referendum must be held instead of a second vote in the case of a change to the Constitution if, within two months of the first vote, a quarter of the parliamentarians or 25,000 electors so request. The first alternative is likely to be chosen for the upcoming adoption of the new constitution. Indeed, this seems particularly appropriate, since a long public discussion has taken place on this topic in recent years. This has included a referendum in 2015 on three fundamental questions for which the Parliament wanted to gauge public opinion before deciding on corresponding changes to the Constitution. The questions were about the voting rights for foreigners who had been residents in Luxembourg for at least 10 years; the lowering of the minimum voting age from 18 to 16 years and the limitation of the mandate of members of the government to 10 years. The answer was overwhelmingly negative on all three questions, although the 10 Loi du 27 février 2015 portant organisation d’un référendum national sur différentes questions en relation avec l’élaboration d’une nouvelle Constitution (Mém A n° 35). 11 eg, the two laws of 1 June 2006 (Mém A n° 100) clarifying the legal pursuits against deputies (arts 68 and 69). 12 eg, the two laws of 29 April 1999 (Mém A n° 49) modifying arts 11 (rights of foreigners) and 18 (abolition of the death penalty).

Legislation in Luxembourg  319 government had taken an opposite position. In line with the result of the people’s vote, the last version of the draft for a new constitution13 left the existing rules substantially unchanged. Apart from this itemised referendum in the run-up to a new constitution, several other stakeholders have intervened or been consulted in the course of its long drafting process. The original initiative of 2009, formally made by a single deputy, namely the Chairman of the Institutional Committee of the Chamber, has been endorsed by the Parliament and has been transmitted to the government with the request to engage the consultation of the Council of State. This proposal was accompanied by a short description of the constitutional history and a commentary on the individual articles. The government also transmitted the text to the professional chambers for their opinion; the replies were transmitted to the Chamber. The Luxembourg Bar Association gave its own opinion on specific aspects of the judiciary, apart from the obligatory one of the Chamber of Liberal Professions.14 The different tribunals and courts expressed their wish to see a merger of the judicial and administrative branches of the judiciary. All the different steps are documented in the publicly accessible database of the Chamber (file 6030).15 Of particular interest are the Council of State’s four additional opinions in reaction to new changes of articles in the draft constitution, and the synopsis in three columns, which juxtaposes the texts of the current and of the intended new constitution as well as the government’s approval or explained refusal of the individual articles. Another specific feature of the constitutional discussion is worth mentioning: the Chamber, at the request of several deputies, decided to submit the draft constitution to the Venice Commission (European Commission for Democracy through Law) for an opinion. This request underlines the preparedness of the deputies to receive critical comments as regards the compliance with democratic standards. The Venice Commission, composed of independent experts from 61 states, including all 47 Member States of the Council of Europe, studied the draft constitution and a delegation met with representatives of the Chamber and of the government in Luxembourg. Referring to the observations from six of its members, the Venice Commission transmitted a requested opinion in March 2019 on the basis of the consolidated version of 2018 of the new draft constitution, which suggested, inter alia: • creating an intermediate category of legislation between the Constitution and the ordinary law, namely organic laws, as is the case in France; • mentioning more specifically the predominant value of international law; • defining the hierarchy of laws more precisely; • defining limits to the transfer of legislative powers to international institutions; • providing for a control of constitutionality of laws at the direct initiative of citizens; • allowing the Constitutional Court to annul laws that do not pass the constitutionality test. 13 A consolidated version of the currently discussed text is available in Chamber doc N° 6030-25 of 24 May 2019. 14 In which the lawyers are represented as well, amongst other liberal professions. 15 https://www.chd.lu/wps/portal/public/Accueil/TravailALaChambre/Recherche/RoleDesAffaires?action=doD ocpaDetails&id=6030.

320  Volker Heydt It may be the case that the detailed comments of the Venice Commission will give rise to further discussions in the context of the revision of the Constitution in which the Council of State is likely to intervene as a major player.

19.3.2.3.  Grand-Ducal Regulations By its nature (namely implementing the parliamentary laws), the Chamber is not involved in the Grand Ducal regulations. There are no laws that require that a parliamentary committee be consulted before adoption or that provide for a submission to the Chamber for ratification. As with bills, Grand Ducal regulations are prepared by the competent ministries and have to receive the approval of the whole government (Conseil de gouvernement) before being submitted by the competent minister to the Grand Duke for his signature.

19.3.2.4.  Government or Ministerial Regulations These regulations are prepared in the same way as Grand Ducal regulations, but they are made by virtue of the delegated general Grand Ducal executive power.

19.3.3.  Application and Implementation of EU law Directly applicable EU law (ie, EU regulations) does not require any legislative action at the national level and is considered to have a higher rank than national laws. If measures are necessary to render an EU regulation operational and also for the transposition of EU directives into national law, this takes place in principle during the ordinary national legislative procedure. However, the administration is empowered to implement EU legislation in economic, technical, agricultural, social and transport matters by regulations. An opinion on them from the Council of State is obligatory, they must have been submitted to the competent professional chamber(s) and they must be approved by the competent Chamber committee.16 The government presents an annual report on the transposition of EU directives to the Chamber of Deputies.17

19.4.  Values and Policy Goals in the Constitution Luxembourg is a Western European democratic state with a high standard of governance. It is unconditionally committed to the respect of human rights and fundamental freedoms as well as to the European integration. The rule of law is a predominant value. 16 Loi du 9 août 1971 concernant l’exécution et la sanction des décisions et des directives ainsi que la sanction des règlements des Communautés européennes en matière économique, technique, agricole, forestière, sociale et en matière de transports (Mém A n° 59). 17 Aide-mémoire on the cooperation between the Chamber of Deputies and the Government in European matters (Annex 3 of the Rules of Procedure of the Chamber as consolidated on 1 January 2017 (Mém A n° 202).

Legislation in Luxembourg  321 In the future constitution, social rights are given increased attention and for some subjects even an active pursuit of goals is explicitly stipulated: the elimination of obstacles for the equal treatment of men and women (which is now already a standard section in the impact assessment attached to bills), the protection of children, the promotion of social dialogue, the protection of the environment and of cultural heritage, the freedom of scientific research etc. This will thereby reinforce policy goals that are so far partially pursued by ordinary legislation or by political statements serving as guideline for government and administration.

19.5.  Evaluation of Legislation The opinions of the Council of State and of the professional chambers, which represent the different interests in a structured manner, as well as the regulatory impact assessments attached to the government bills can be considered to be an institutionalised ex ante control of legislation under legal, political and social aspects. A preventive judicial control does not exist. A legal ex post control is exercised by the tribunals and courts, which are even bound to disapply rules that are in conflict with rules of a higher hierarchical rank (Article 95 of the Constitution). The Constitutional Court, to which questions of compliance of laws with the Constitution may be referred by the tribunals, is limited to stating an incompatibility and cannot annul a law. A political evaluation of the legal framework in general can take place during the discussion on the annual budget, but specific mechanisms for the assessment are not foreseen. A further kind of institutionalised control can be seen in the establishment of an Ombudsman18 (médiateur), who may be approached by citizens in relation to any misgiving of maladministration and thus, indirectly, bad legislation correctly applied.

19.6.  Legislative Techniques 19.6.1.  Drafting Rules Legislation is drafted in the respectively competent ministries. There are no special draftspersons. In the absence of specific drafting rules, the drafting officials rely on customs and models, and may also take inspiration from foreign manuals. In particular, the Belgian and French guides are consulted not only because of the common language, but also due to the considerable similarities in the legal orders built on the Napoleonic law reforms. The current practice of applied legistic rules and models is comprehensively presented in the recent book by the Secretary General of the State Council, which builds on the many conceptual and practical detailed remarks made and developed by the Council of State in the legistic section of its opinions.

18 Loi

du 22 août 2003 instituant un médiateur (Mém A n° 128).

322  Volker Heydt The title of a law is precise and mentions if the substance requires the amendment of several other laws.19 This practice appears to imply an abstention from omnibus laws. The title of each piece of legislation starts with the name of the type of act followed by the date. The latter is always the date of signature, not the date of publication in the Official Journal. There are no numbers in the title. Short titles or abbreviations are not used in the title or in the text of laws (eg, Loi du 23 décembre 2016 portant modification de la loi modifiée du 17 avril 1964 portant réorganisation de l’administration des contributions directes).20 For all types of legislation, reference is made to the fulfilment of the procedural requirements before the substantive rules begin. For the laws, this means a reference to the participation of the Council of State, the dates of the first and second votes in the Chamber or, if waived, the date of approval by the Council of State. For regulations, the empowering rule is mentioned. There are no (explanatory or political) recitals as to the substance of the law. Acts are always referred to by their original date with the additional mention ‘as modified’ irrespective of the number of modifications; no reference is made to the modifying act (not even to the last) so that there is no possibility to retrace, on the basis of the text, the changes that have taken place. The dates of the modifying acts can be found (without a reference to the Official Journal) in the Legilux database on a timelime. Conversely, references are mentioned in the sectoral collections (Recueil) of legislation (texts without procedural recitals). Sub-headings of the body of each piece of legislation are freely chosen if they are considered necessary. After the (minister-countersigned) signature of the Grand Duke, who thereby promulgates the act and gives the order for its publication, the Official Journal contains a reference to the parliamentary file. This makes it possible to trace the procedure in the Chamber (on its website, not in the Official Journal) with all the related consultations, including the documents from the start to the end; one can even find videos of the corresponding plenary sessions with the individual personal interventions.

19.6.2.  Publication in the Official Journal Legislation is published in the Mémorial A. This official publication, produced by the Central Legislation Service (Service central de législation) in the Prime Minister’s Office, has an interesting history in terms of the languages used;21 it has undergone several changes with respect to its division into different parts and also its format.

19 eg, Loi du 8 avril 2019 relative à des mesures à prendre en relation avec le secteur financier en cas de retrait du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord de l’Union européenne et modifiant: 1° la loi modifiée du 5 avril 1993 relative au secteur financier; 2° la loi modifiée du 10 novembre 2009 relative aux services de paiement; 3° la loi modifiée du 17 décembre 2010 concernant les organismes de placement collectif; 4° la loi modifiée du 12 juillet 2013 relative aux gestionnaires de fonds d’investissement alternatifs; 5° la loi modifiée du 7 décembre 2015 sur le secteur des assurances; et 6° la loi modifiée du 18 décembre 2015 relative à la défaillance des établissements de crédit et de certaines entreprises d’investissement (Mém A n° 237). 20 Mém A 2016 n° 278. 21 Originally German/French versions were published, synoptically side by side in columns; from 1882 to 1940, with inverted French/German columns, during the occupation (1940–44) only in German, a few issues in French/ German again in 1944 and since October 1944 in French only.

Legislation in Luxembourg  323 Since 2017, the publication method has changed: the paper edition has been abandoned in favour of an authentic electronic publication and the structure of the Mémorial has been reorganised. The Law on the Official Journal and an accompanying Grand Ducal Regulation, both of 23 December 2016 and published on 28 December 201622 (there are no constitutional obstacles in adopting and publishing a law and a corresponding regulation simultaneously), were the last rules published on hard copy. The electronic Official Journal is divided into two parts, Mémorial A and Mémorial B, the former being designed for the publication of legislation and acts of general interest, and the latter for administrative decisions, including many Arrêtés grand-ducaux (Orders). The Mémorial is conceived as a new Official Journal, in which each publication carries the date of issue and a chronological publication number in an annually restarting numbering in the A and B parts. Whereas in the ‘old’ Mèmorial A several pieces of legislation could be placed in the same series number and could be identified more precisely by the page number, because a continuous annual pagination took place, page numbering is now only conceivable within each issue of the Mémorial and therefore cannot serve as a legal reference.

19.6.3. The Legilux Database The Legilux database, which is accessible without charge, contains the rules published in the Mémorial A. The search is possible under different criteria, eg, by type of act, date of act, date of publication and subject matter. For the different pieces of legislation, a permalink with an European legal identifier (ELI) is displayed. The texts are available in HTML and also as pdf reproductions of the Mémorial. Unfortunately, there is no manual for the database; occasional users might have difficulties in fully benefiting from its rich content. Legislation which has been modified is cited with the original date, but without a reference to the original number of the Mémorial. If there have previously been other modifications, these are not mentioned in the new modifying act, which also does not mention the last amendment made. However, the respective information is presented visually on a timeline in the database. Legally binding codification/consolidation of laws does not exist. Instead, the database contains 17 codes and some 40 collections of legislation for different subject matters with consolidated versions of frequently used legislation.

19.7.  Teaching Legisprudence The recently created University of Luxembourg does not offer specific courses in legisprudence. Law studies of lawyers have so far mostly been made at French or (francophone) 22 Loi du 23 décembre 2016 concernant le Journal officiel du Grand-Duché de Luxembourg (Mem A n° 309); Règlement grand-ducal du 23 décembre 2016 portant abrogation de 1. l’arrêté royal grand-ducal du 20 avril 1854 concernant la publication du Mémorial législatif et administratif; 2. l’arrêté royal grand-ducal modifié du 21 septembre 1859 concernant la publication du Mémorial en deux parties; 3. le règlement grand-ducal modifié du 9 janvier 1961 relatif aux trois recueils du Mémorial (Mém A n° 310).

324  Volker Heydt Belgian universities due to the language and as a result of the considerable influence of the French legal order on the law in Luxembourg. However, there exists a long tradition of training for civil servants on the drafting of laws. This has occurred for decades, as a kind of in-house-training at the Institut national d’administration publique du Luxembourg by the Secretary General of the Conseil d’Etat, Marc Besch. The training focuses on the techniques and tools that are necessary for the drafting of legislative instruments whereby respect for constitutional values (the rule of law and proportionality) and the hierarchy of legal norms (in particular, the taking into account of the European and international framework) are important cornerstones.

Further Reading Barreau du Luxembourg, Quo vadis droit luxembourgeois ? Réflexions sur l’évolution des sources et techniques normatives (Luxembourg, Promoculture-Larcier, 2013) M Besch, Normes et légistique en droit public luxembourgeois (Luxembourg, Promoculture-Larcier, 2019) Information and Press Service of the Luxembourg Government, About …. Political Institutions in Luxembourg, 2006 Webpages Chambre des Députés

www.chd.lu

Conseil d‘Etat

www.ce.etat.lu

Government

www.gouvernement.lu

Official Journal official (Mémorial)

www.legilux.lu

Service central de Législation

https://scl.gouvernement.lu/en.html

20 Legislation in Malta IVAN SAMMUT

Context The Maltese legal order is at the crossroads of civil law and common law. Malta has a long legal history tied to continental Europe and this very strong connection strengthened, during the period of the Knights from 1530 to 1798 and continued well beyond the arrival of the British in 1800. When the Maltese Civil Code was first enacted in 1868, the major source was the Napoleonic Code. As a result, Maltese substantive private law is based on the Roman/civil law system. The British period, which lasted more than a century and a half, left a very strong impact on the Maltese legal order. In fact, British influence is mostly found in procedural and administrative law, where the Maltese system is much closer to the British common law system than to the continental civil system. Nevertheless, the Maltese legal system, unlike the common law system, is a codified system where even though the administrative and procedural law is based on common law, it is codified. The Maltese Code of Organization and Civil Procedure (COCP) dates back to 1865. Although the Laws of Malta include codes like their continental counterpart, the common law influence can still be seen, as the codification process is not complete. While a good part of private law is found in the Civil Code and the Commercial Code, other laws of a private law nature are scattered across various chapters of the almost 500 chapters of laws that make up Maltese law, like the laws of England. While the courts follow the common law procedural principles, the doctrine of precedent, which is essential for a ‘pure’ common law system, is absent in Malta. From a constitutional point of view, the Maltese Constitution follows the British model with one major difference. Under the British system, Parliament is supreme and a Parliament can never bind a future Parliament. Under the Maltese Constitution, parliamentary sovereignty is limited by the supremacy clause of the Maltese Constitution. Thus, Maltese law belongs to a ‘mixed’ legal family, where concepts from the two major legal families exist side by side. European law is also evolving along ‘mixed family’ lines. While as a system it is based on civil law grounds, given the fact that the original six Member States were civil law jurisdictions, common law principles started leaving their mark following the UK’s accession. An example of this would be the Second Company Directive. In a way, the Maltese legal system could serve as a laboratory to prove how EU law could evolve, bearing in mind certain obvious variables such as the fact that the Maltese legal order is a national legal order, while the EU legal order is a sui generis kind of legal order that exists alongside the national legal order.

326  Ivan Sammut Malta’s independence from the UK in 1964 was marked by legal continuity at both the constitutional and private law levels. In fact, independence did not bring about any significant changes. Malta opted to continue with the same legal regime it had followed before and there was no attempt to shift back to a civil law system as was the case before the British colonial period. The change from monarchy to republic also did not alter the status quo in relation to private law and public law. Basically, Malta continued to follow the old civil law tradition with regard to pure civil law principles, while procedure and new commercial law were modelled on common law traditions. Between 1987 and the start of EU negotiation accessions in 1999, Malta continued to come up with modern legal initiatives in the fields of commercial law and financial services, mainly drawing inspiration from common law traditions. The introduction of trusts legislation can be given as an example of this. Following the EU accession negotiations and its subsequent accession in 2004, Malta seems to have lost the initiative to come up with local legal initiatives and, over the past decade, it has been busy transposing EU legislation, namely directives across various chapters of the Laws of Malta, rather than through codification. The way in which transposition takes place is usually through the enactment of an act of Parliament or through subsidiary legislation without any thought as to the origins of the legal tradition of the EU legal instrument and as to how it would best suit the Maltese legal order. In fact, it can be said that EU transposition is done in a way which is more convenient to satisfy the EU Commission rather than any local legal tradition. The result is that while Malta generally complies with the acquis communautaire and the EU Commission is generally satisfied with Malta, Malta now has laws spread over more than 500 chapters and, by choice and based on political convenience in relation to its European obligations, it is a ‘purely’ mixed system – ‘purely’ because little thought has been given as to how to create and respect local legal traditions, although the aim is to comply with EU law in the shortest possible time and to avoid EU infringement proceedings. Moreover, it could be argued that over the past few decades since independence, Malta has created a mixed legal tradition where ideas can be drawn from various legal systems, but in the main, the English system and legal tradition is easily adjusted to the local scenario. The Maltese legal system as a mixed legal system is so flexible that legal ‘irritants’ are practically non-existent and legal ‘transplants’ are common.

20.1.  Legislation: The Hierarchy of Provisions In the Maltese legal system, the written constitution is the highest law of the land, and if there is a conflict with any other national law, it is the Constitution and its bill of rights that will prevail over both primary and secondary legislation. Although the Maltese Constitution is broadly based on the Westminster model, the Maltese version is not only a written constitution, but also includes entrenched clauses in the sense that in order for such clauses to be amended, a two-thirds majority in the House of Representatives is required rather than a simple majority as in common legislation. The House of Representatives is the unicameral parliament of Malta. All primary legislation needs a simple majority of the House and consent from the President of the Republic. The President must always consent to legislation and can be removed by a simple majority of the House. Thus, unlike

Legislation in Malta  327 the British model, the written constitution prevails over Parliament, and an entrenched clause can only be amended via the special procedure, so in a way an enriched clause binds a future parliament unless the future parliament can override it with a two-thirds majority. Like the UK, Malta also takes a dualist approach to international law in the sense that international law that has been signed and ratified is still not directly applicable in the local courts unless it is specifically transposed by the Maltese Parliament. While the Constitution is superior to any other ordinary law, a reference in the Constitution is also made to EU law and the European Convention on Human Rights (ECHR), which are considered to prevail over other forms of legislation. The ECHR was transposed into Maltese law through Act XIV of 1987, even though Malta had ratified the Convention back in 1966. Hence, besides the Constitution, as explained below, EU law and the transposed provisions of the ECHR prevail over ordinary legislation, both primary and secondary. Article 6 of the Maltese Constitution provides that: Subject to the provisions of sub-articles (7) and (9) of Article 47 and Article 66 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail, and the other law shall, to the extent of the inconsistency, be void.

This can give the impression that because of this clause, the doctrine of supremacy as explained in Costa v Enel could prove to be problematic.1 If an EU treaty or a European regulation were to conflict with ordinary Maltese law, it would be accepted, but what if it conflicts with the Constitution? Malta was not alone in facing such problems at the time of its accession to the EU. The acceptance of supremacy in the UK has been even more problematic. Since the British constitution is largely unwritten, it is even difficult to conceive of amending it. The main problem is that Parliament is deemed to be supreme. This means that Parliament has the power to do anything except to bind future parliaments. Such a position clearly would make it difficult to transfer power permanently to the EU, as is the spirit in Costa. As the Maltese constitutional principles are based on English constitutional law, it makes sense to compare the two to explain how the Maltese system works. The UK, after signing and ratifying its Accession Treaty in 1972, decided to give internal legal effect to Community law through an Act of Parliament: the European Community Act 1972. Malta followed the UK example by enacting the European Union Act,2 which came into force on accession on 1 May 2004. The aim of this Act is that it incorporates the acquis communautaire into Maltese law. This means that by the power of the Act, the acquis would have the same power in law as Maltese law, which solves the dualistic approach. As far as Maltese law is concerned, a similar instance occurred in 1987, when the European Convention on Human Rights of the Council of Europe, which has been signed and ratified by Malta, was incorporated into Maltese law by Act XIV of 1987. So, what happens if a British Act of Parliament or the Maltese Constitution were to conflict with EU law? When the UK and Malta signed their Accession Treaties, they accepted



1 Case

6/64 Costa v ENEL [1964] ECR 595. 460 of the Laws of Malta.

2 Chapter

328  Ivan Sammut an international obligation to comply with EU law. If national legislation were to conflict with EU law, this would mean that the respective Member State would be in breach of its Treaty obligations. If this were to happen theoretically, sanctions could range from a simple Article 258 of the Treaty on the Functioning of the European Union (TFEU) procedure to political sanctions and eventual exclusion from the EU. However, this is unlikely to ever happen in good faith. Membership of the EU is voluntary. The draft European Constitution contemplated such a potential withdrawal, which was then entrenched by the Lisbon amendments and was used to trigger the Brexit procedure in March 2017.3 In practice, it is highly unlikely that a Member State would ever be in a position where its basic law were to conflict with the principles enshrined in EU law. In fact, in Hauer v Land Rheinland-Pfalz, the Court of Justice of the European Union (CJEU) argued that there is no rule of law that a particular right will be accepted as fundamental by the CJEU if it is protected in the constitutions of some of the Member States or even in a majority of them.4 If the right in question would be generally accepted throughout the EU and does not prejudice fundamental EU aims, it is probable that the CJEU would, as a matter of policy, accept it as a fundamental right under EU law, even if it is constitutionally protected in one Member State. If the right were a controversial one, it would probably be unlikely that the CJEU would seek to impose the will of the majority on those Member States who would consider such a right to be fundamental. Going back to the European Union Act, the main provision, Article 4(1), provides that: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaty, and all such remedies and procedures from time to time provided for by or under the Treaty, that in accordance with the Treaty are without further enactment to be given legal effect or used in Malta, shall be recognized and available in Law, and be enforced, allowed and followed accordingly.

This is merely a reproduction of section 2(1) of the British European Communities Act 1972, which highlights that Malta attempts to adopt the British approach on the legal framework of the adoption of the acquis. Section 2(2) of the British Act provides for the implementation of Community obligations even when they are intended to replace national legislation and Acts of Parliament by means of Orders in Council or statutory instruments rather than by primary legislation. The Maltese Act in Article 3 provides that from 1 May 2004, the Treaty and existing and future acts adopted by the EU shall be binding on Malta and shall be part of the domestic law thereof under the conditions laid down in the Treaty. Any provision of any law which from the aforementioned date is incompatible with Malta’s obligations under the Treaty or which derogates from any right given to any person by or under the Treaty shall, to the extent that such law is incompatible with such obligations or to the extent that it derogates from such rights, be without effect and unenforceable. From this, it emerges that the supremacy of EU law over Maltese law emanated from Article 3 of the Maltese Act. To what extent this would apply if there is a potential conflict with the provisions of the Constitution is debatable. Parallels can be drawn to the theoretical5 scenario where the ECHR as enacted

3 Article

I-60 of the Draft Constitutional Treaty. 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727. 5 Theoretical because in practice it would be difficult, if not impossible, for this to occur. 4 Case

Legislation in Malta  329 is in conflict with the Maltese Constitution. The same clout afforded to the ECHR by the Maltese courts would probably be afforded to the European Union Act. However, given the unique nature of EU law and the rights and obligations that this entails, the fact that Malta voluntarily accepted to join the club should be enough to convince any Maltese court that should this theoretical scenario occur in practice, as long as Malta wants to be part of the EU, EU law is supreme and should prevail even if there were to be a conflict with the Constitution. The sharing of sovereignty is voluntary and unlike a federation, if a country feels that it should no longer share its sovereignty with the other Member States, then legally speaking it should either secure an opt-out from this aspect of EU law or withdraw from the EU completely. Unlike a federation, the EU does not compel its Member States to stay in the union by force and, in theory, a Member State does not give up any sovereignty, but simply shares it with the other Member States. To give effect to the provisions of Article 3, the Prime Minister and/or any designated minister or authority may by order6 provide for the implementation of any obligation of Malta, or enable any such obligation to be implemented, and any right enjoyed or to be enjoyed in Malta under or by the Treaty to be exercised. The same authorities shall also provide for the implementation of any necessary legislation to deal with matters arising out of or related to any such obligation or right, or its coming into force or operation from time to time. Article 4(1) of the European Union Act aims to make the concept of direct effect part of the Maltese legal system. It deems law which under the EU Treaties is to be given immediate legal effect to be directly enforceable in Malta. Accordingly, Maltese courts, which according to the orthodox domestic approach to international law may not directly enforce a provision of an international treaty or a measure passed thereunder, are directed by this article to enforce any directly effective EU measure. There is no need for a fresh act of incorporation to enable Malta to enforce each EU Treaty provision, regulation or directive that according to EU law has direct effect. Just as in the cases of France, Germany and Italy, the supremacy of EU law is recognised in Malta by a domestic legal process and legal theory – by means of an Act of Parliament. The European Union Act also provides for any international treaty concluded by the EU through its external relations powers to be considered as part of Maltese law. The procedure laid down in Article 4 provides that with regard to treaties and international conventions which Malta may accede to as an EU Member State, and treaties and international conventions which it is bound to ratify in its name or on behalf of the EU by virtue of its membership of the EU, these shall come into force one month following their being submitted in order to be discussed by the Standing Committee on Foreign and European Affairs. Also, any financial obligations arising out of the Treaty obligations are to be charged against the consolidated fund. As for the relationship between the Maltese courts and the EU courts, the European Union Act provides that for the purposes of any proceeding before any court or other adjudicating authority in Malta, any question as to the meaning or effect of the Treaty or as to the validity, meaning or effect of any instruments arising therefrom or thereunder shall be treated as a question of law. If the issue is not referred to the CJEU, it must be determined 6 By order means by delegated secondary legislation, which is often a Legal Notice. These are issued under the applicable enabling act and are not debated in Parliament.

330  Ivan Sammut as such by the principles laid down by, and any relevant decision of, the CJEU or any court attached to it. This allows the preliminary reference procedure under Article 267 TFEU from the point of view of Maltese law. As for the judgments handed down by the EU courts, judicial notice is taken of the Treaty, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the CJEU or any court attached thereto on any such question as aforesaid, and the Official Journal shall be admissible as evidence of any instrument or any other act thereby communicated by any of the Communities or of any EU institution. In order to facilitate the implementation of the European Union Act, Act V of 2003 amended Article 65(1) of the Maltese Constitution as follows: Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Malta in conformity with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations those assumed by the treaty of accession to the European Union signed in Athens on the 16th April 2003.

In the above provision, the Constitution is complementing the European Union Act in ensuring that all legislation passed in Malta is in line with the EU legal order. The inclusion of this provision ensures that even in the fundamental law of the land, it is provided that all legislation enacted in Malta must be in line with EU legislation. This makes it easier for the Maltese courts to give priority to EU law in the event of conflicting legislation. However, it is worth mentioning that Article 65(1) is not entrenched in Article 66 of the Constitution. Article 66 provides for special procedures such as a two-thirds majority of the House of Representatives to amend certain parts of the Constitution. Article 65(1) is not included and thus it can be amended like any other provision of the law. This makes it constitutionally possible for a government to amend the Constitution and to ensure that national law would have supremacy over EU law in terms of the Maltese Constitution. However, the very fact that a constitutional amendment would be necessary would make it clear politically that the government of the day would like to withdraw from the EU and therefore national law cannot overrule EU law accidentally. Withdrawal from the EU is technically possible as Malta shares its sovereignty with the other Member States and has not lost it. Could it be argued that the European Union Act amended the Constitution? The answer is no. First, nothing in the acquis is presumed to conflict with the Constitution. Second, the Treaties and the draft Constitutional Treaty do not provide for any requirement whatsoever in the organisation of the state. A Member State is free to choose and maintain whatever form of government or legal system it prefers. Third, as far as fundamental rights are concerned, the CJEU has said that it will also draw its inspiration from the constitutions of the other Member States. Thus, by making EU law supreme over Maltese law, the European Union Act in no way contravenes the provisions of the Maltese Constitution. Any new human rights legislation is likely to provide further protection, rather than act as a threat, to the basic rights as enshrined in the Maltese Constitution. Foreseeable problems could be envisaged if ‘new human rights’ are introduced at the European level which could conflict with the principles held by most Maltese citizens, such as the right to abortion or the right to divorce. As for the former case, this could never affect Malta against its will, as it is provided for in the Accession Treaty.7 As for the latter

7 See

Article 62 of the Protocol to the Draft Constitutional Treaty.

Legislation in Malta  331 case, this is not a constitutional right in Malta, so if it were to be introduced as a right, Malta may become bound to it. However, if Malta were to provide against such a right in its Constitution, it is likely that European law would not force such a right upon Malta as it is a general principle of EU law not to conflict with the basic rights enshrined in the Constitution of its Member States.8 Thus, conflict between the European Union Act and the Maltese Constitution is unlikely to exist both in theory and in practice. Naturally, Malta can amend its Constitution in a way that might conflict with EU law. In this case, the Maltese courts should rule that EU law would prevail if the political intention is to stay within the EU. Malta can regain its full sovereignty if it chooses to withdraw from the EU – Mexit can follow the footsteps of Brexit in theory. In terms of pure Maltese law, there are two types of legislation that emanate from Parliament: (a) primary legislation; and (b) subsidiary or delegated legislation. Primary legislation is proper acts of parliament. These need to be approved by a simple majority of the House of Representatives and signed by the President of the Republic (who replaced the monarch under the Westminster model). Following publication in the official government gazette, an act of parliament immediately becomes legally binding legislation unless the act provides for a future date for its entry into force. Secondary legislation is possible if there is an enabling act. This means that the minister responsible for a sector can issues rules which are enforceable if they are within the remit of the enabling parent act and are authorised by the aforementioned act. These are called Legal Notices. Public institutions including public authorities can also issue by-laws to regulate aspects that fall within their remit. Such authorisation will be provided by the act of parliament regulating the aforementioned institution. In case of conflict, primary legislation always prevails over secondary legislation.

20.2.  The Organisation, Procedure and Management of Legislation and Techniques of Drafting and Publishing: Requirements for Draft Acts Primary legislation consists of Acts of Parliament which appear in the edition of the Laws of Malta.9 The first in the list is the Constitution, which is then followed by several chapters. A chapter is an act of parliament that introduces an independent piece of substantive legislation that is not amendments to previous existing chapters. By the end of 2018, there were 594 chapters of the laws of Malta.10 The structure of each act of parliament follows a common pattern, commencing with a long title and followed by a short title. This is then followed by the enacting formula, which lists the legislative history of the act if applicable. Then there is also the interpreting article, defining certain key terms which appear throughout the act. The act also provides marginal notes that guide the reader as to what each article regulates. A marginal note is similar to a title for each article, although it



8 See

Case C-159/90 SPUC v Grogan [1991] ECR I-4685.

9 http://www.justiceservices.gov.mt.

10 ibid.

332  Ivan Sammut appears at the side of the article rather than at the top of each article. After the main body of the act, which will be divided into articles dealing with the substantive subject matter of the act, there may follow several appendices called schedules, which may be used to provide technical details on the substantive measures – for example, it may include a list of banned items or a list of fees. Therefore, the normal structure of an act can be summarised as follows: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

long title; enacting formula; short title; commencement date (if any); interpretation clause; main provisions; administrative provisions; transitional provisions; repealing provisions; schedule/s (if any).

According to Article 3 of the Statute Law Revision Act, 1980 there is also the Malta Law Commission, which is made up of a commissioner or a body of commissioners whose number may vary from time to time. The Commission has the power to alter to form of legislation, as is provided for in Article 4 of the above Act. For example, the Commission has the power to omit specific parts of the law which have either been expressly repealed or have expired. The Commission may also be responsible for certain renumbering of acts.11 This can involve a change in the chapter number or even the renumbering of the various articles within the applicable chapter itself. However, the Commission, although constituted, has been mainly inactive for the last two decades and there has been little to no updating in most legislation. Once a bill is presented to the Maltese Parliament, the bill passes through the following stages in order to enable Parliament to thoroughly consider all the provisions. However, normally there is no such rule. A bill is presented in Parliament following the publication of a position paper for discussion, then a White Paper which would include a draft bill is published. This is a consultation process, but the final say is always in the hands of the executive, which always commands a majority in parliament. Table 20.1 below explains the process.12

20.3.  The Legal Profession and the Training of Lawyers Drafting Legislation The legal professions in Malta are those of lawyer, notary public and legal procurator. Lawyers or avukati have rights of audience before all courts. Notaries public are considered public officials, and they draft and publish public acts. Mainly these public acts involve



11 D

Attard, The Maltese Legal System, vol 1 (Msida, Malta University Press, 2013) 49. 50–51.

12 ibid

Legislation in Malta  333 Table 20.1  The legislative process in Malta First Reading

This is not an actual reading of the bill, but the stage which involves authorisation for the bill to be presented to the House. It is more to show the intention of discussing the bill and no vote may be taken.

Second Reading

This is when the member of the House piloting the bill, normally a government minister unless it is a private member’s bill (which do exist, but are not very common), explains the purpose and the policy involved. It involves a debate on the objectives of the bill and a vote is taken.

Committee Stage

At this stage, the House resolves itself into a committee, or the bill is forwarded to the Committee for Consideration of Bills and its provisions are debated, and amendments may be made.

Report Stage

At this stage, the bill is formally reported to the House by the chairperson of the committee. The amendments proposed by the committee are considered by the House, which may make further amendments.

Third Reading

This is the stage where the final debate is made. Here the bill is confined to minimal verbal amendments only, which may involve a few words. A vote is then taken and, if approved by a simple majority, the bill is referred to the President for his or her assent, after which the bill becomes law and becomes operational once it is published in the government gazette, which is done without delay.

contracts of immovables and testaments. Legal procurators have the right of audience before the lower courts; in practice, most of their work consists of following up legal acts, both that related to court cases and that related to other claims in the court registry. Legal procurators are like junior lawyers. Each of these three professions is regulated by different legislation and different codes of ethics. The legal profession in Malta is organised as a unitary system, and public prosecutors are appointed from amongst practising lawyers. The Maltese legal professions are still modelled on the continental system and bear no resemblance to the English system. Under Article 91 of the Constitution, the Attorney General is vested with constitutional functions and the Office of the Attorney General is established as a government agency under the Attorney General Ordinance, Chapter 90 of the Laws of Malta. An ordinance is the same as an act, but if the law dates back to colonial times, it is called an ordinance. In accordance with the Constitution of Malta, the Attorney General has the same security of tenure as a judge and exercises independent judgement in matters concerning criminal prosecutions, as well as carrying out the functions prescribed by the Criminal Code in relation to criminal prosecutions. The Attorney General is assisted by the Deputy Attorney General, the Assistant Attorney General and other legal officers. The Attorney General is the public prosecutor before the Criminal Court and the Court of Criminal Appeal. Certain prosecutions initiated by the police require the prior consent of the Attorney General. In exercising the powers to launch, perform or discontinue criminal proceedings as conferred

334  Ivan Sammut on him or her by any law authorising the exercise of such power, the Attorney General is not subject to the direction or control of any other person or authority.13 The Attorney General also acts as legal advisor to the government, and legal officers from the Office of the Attorney General also represent the government before the civil and constitutional courts. The Office of the Attorney General is also the competent authority in most matters concerning legal cooperation in the civil, commercial and criminal law fields. The Office of the Attorney General represents Malta before international courts and represents the government at international meetings concerning legal and judicial cooperation. The Office also drafts legislation and assists in its passage through Parliament.14 The Attorney General’s office may be entrusted to draft certain bills, especially if they are of a public law or constitutional nature. Bills dealing with specific substantive issues are often drafted by either the applicable government authority or by the respective government department under the political guidance of the ministry responsible for the subject matter. Sometimes legal experts from the private sector are engaged to assist the respective department. In these cases, the Attorney General’s office oversees this process to ensure consistency in the national legislation. In practice, there is no clearly defined rule of how legislation is drafted, and much is subjective depending on the political masters of the day.

20.4. Conclusion From the above discussion, it can be appreciated that Malta’s legal system is a synthesis of the various legal cultures that exerted an influence on it during the long years of colonial rule. Though British rule was officialised in 1814, the British refrained from imposing common law in Malta. The Code de Rohan, which had been promulgated in the dying days of the long rule of the Knights of Malta, was substituted by a local version of the Napoleonic Code in 1852. Other codes were enacted in the same period, most notably the Code of Organization and Civil Procedure, the Criminal Code and the Code of Criminal Procedure. Sir Adrian Dingli, a Maltese legal luminary, was instrumental in the promulgation of these codes, which, though extensively amended over the years, still form the backbone of Maltese legislation. He drew extensively from continental codes, such as those of the Italian citystates and the Two Sicilies. However, the Code of Criminal Procedure departed somewhat from the continental models, and the accused were given rights which were already prevalent in the UK, and trial by jury was also introduced. During the long years of British colonial rule, British legal influence came increasingly to bear on Malta. Fiscal and company legislation follows the British model closely, and since independence in 1964, UK legislation is often mirrored in legislation enacted by the House of Representatives, which is run based on rules followed by Westminster. The Maltese Constitution, enacted in 1964, closely reflects British constitutional principles, but it also promulgated a bill of fundamental rights which was heavily influenced by the European



13 https://e-justice.europa.eu/content_legal_professions-29-mt-en. 14 ibid.

Legislation in Malta  335 Convention on Human Rights. The Civil Code and the Commercial Code are still in force, but today most modern legislation, rather than being codified in the codes, is simply enacted as a new chapter of the Laws of Malta, and consolidation or codification are far from being the norm at present. Of course, there is no legal impediment to let this happen. In the future, a new administration may decide to consolidate and codify the various chapters of the Laws of Malta. However, at present, this exercise does not have any political priority.

Further Reading K Aquilina, The Rule of Law a la Maltaise (Msida, Faculty of Laws, University of Malta, 2017) ——. Constitutional Law in Malta (Dordrecht, Kluwer Law International BV, 2018) ——. Human Rights Law: Selected Writings of Professor Kevin Aquilina (Msida, Department of Media, Communications and Technology Law, Faculty of Laws, University of Malta, 2018) D Attard, The Maltese Legal System, vol 1 (Msida, Malta University Press, 2013)

336

21 Legislation in the Netherlands EMILE BEENAKKER AND SJOERD E ZIJLSTRA

Context The history of the Netherlands as an independent state can be traced back to 1648, the year that marked the end of the Dutch Revolt against Habsburg Spain. After the demise of the French Empire, which had annexed the Netherlands in 1810, the Kingdom of the Netherlands emerged in 1815. Between 1815 and 1830, it encompassed the territory of what is today the Netherlands and Belgium; in 1830, Belgium seceded to become an independent entity. Nowadays the Kingdom of the Netherlands consists of four independent countries: the Netherlands, Aruba, Curaçao and Sint Maarten. This chapter only deals with legislation in the Netherlands.

21.1. Introduction In Dutch constitutional law,1 the Netherlands is somewhat paradoxically called a decentralised unitary state – decentralised because the country is divided into municipalities and provinces, each with its own legislative power, and unitary because provincial legislation takes precedence over municipal legislation, and legislation of the central government takes precedence over provincial and municipal legislation. Also, the central government has the power to declare any act by a provincial and municipal authority null and void. This chapter will mainly focus on legislation of the central government. Only when it is directly relevant will decentralised legislation come into the picture. Furthermore, we are mainly concerned here with (bills for) Acts of Parliament.2

1 LFM Besselink, ‘The Kingdom of the Netherlands’ in LFM Besselink et al (eds), Constitutional Law of the EU Member States (Deventer, Kluwer, 2014) 1187–241. 2 In the Dutch context, the term ‘Act of Parliament’ is slightly incorrect as, under the Dutch Constitution, the highest form of Dutch legislation is the Act, which is a co-decision by Parliament (called the States General) and the government. We use the term because no better one is available. See also Besselink (n 1) passim.

338  Emile Beenakker and Sjoerd E Zijlstra The Constitution of the Netherlands holds few norms for the procedure or substance of legislation. Unlike, for instance, the German Grundgesetz, the Dutch Constitution plays a limited role vis-a-vis an Act of Parliament. Three reasons for this may be identified: • The Dutch Constitution is a very lean document. The latest general revision (1983) specifically aimed at giving the legislator as much room as possible for shaping the law of the land. • Although the Constitution contains an elaborate set of fundamental rights, these rights may in most cases be limited by (or even pursuant to) an Act of Parliament. • Where the Constitution does limit the legislator’s room for manoeuvre, Article 120 of the Constitution prevents the courts from nullifying an Act of Parliament even when it is in clear violation of the Constitution. Lower legislation (ordinances and ministerial decrees) are subject to judicial review, but only insofar as their norms are not directly derived from the Acts of Parliament on which they are based. Although the Dutch courts cannot enforce the Constitution vis-a-vis Acts of Parliament, other mechanisms are in place to see that Acts of Parliament do not violate the Constitution; most significantly, the Council of State, which advises the government on draft bills and royal decrees, but there are several other advisory procedures within or outside the ministerial departments aimed at safeguarding the quality of legislation.3 Also, the First Chamber (Senate) of (the bicameral) Parliament keeps an eye on the constitutionality of bills to which it has to consent. However, it should be noted that these safeguards cannot be compared to judicial review by the courts, as they either lack the power to veto (the Council of State) or let political considerations play a role (the First Chamber). This void has mainly been filled by international and supranational law. Pursuant to Article 94 of the Constitution, Dutch legislation (including Acts of Parliament) shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are ‘binding on all persons’ (ie, self-executing). In this way, Acts of Parliament are subject to several restrictions or principles that may be enforced by the courts (Dutch, supranational4 or international), the most important of which are EU law and international human rights treaties such as European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

21.2.  Types of Legislation in the Netherlands 21.2.1.  Hierarchy of Norms Legislation, understood as general and abstract norms which can (and should) be applied and observed repeatedly in an infinite number of cases, that is adopted in the 3 See below, section 21.4. 4 In the Dutch legal order, EU law does not derive its legal status from Article 94 of the Constitution, but from EU law itself.

Legislation in the Netherlands  339 Netherlands comes in various forms that are structured by the principle of delegation. The hierarchy of norms that thus emerges consists of Acts of Parliament as the primary source of l­egislation, royal decrees (which may be called the secondary level) and ministerial decrees (the tertiary level). The competence to adopt Acts of Parliament (‘wet in formele zin’) derives from Article 81 of the Constitution, which provides that statutory legislation is adopted ‘jointly by the government and the parliament’. As we will clarify in section 21.3 below, the lion’s share of the body of Acts of Parliament that is adopted in the Netherlands can be truly considered the product of cooperation between the government and Parliament. However, the Constitution also gives individual members of the Second Chamber of Parliament the power to instigate a legislative procedure and submit a proposal for a statutory act.5 On the secondary level of the hierarchy, we find royal decrees (‘algemene maatregelen van bestuur’). Typically, royal decrees are drafted by the responsible ministerial department, after which they are discussed and approved by the cabinet ministers. Subsequently, the Council of State, the government’s main advisory body on legislative matters (among other things), is requested to assess the proposal’s quality. Once the Council of State has presented its advice, the government may adjust the proposal before it is signed into law by the king, the formal head of government.6 In some cases, the involvement of Parliament is secured when the statutory act that authorises the adoption of the royal decree demands that the proposal is sent to Parliament, thus enabling both Houses of Parliament to discuss it with the responsible cabinet minister. Such discussion may take place either before or after the Council of State has delivered its advice. Ministerial decrees (‘ministeriële regelingen’) rank third in the domestic hierarchy of norms. They are typically drafted by a ministerial department and are adopted by the responsible cabinet minister or, in exceptional cases, more than one cabinet minister.

21.2.2. Delegation Under the principle of delegation, the competence to adopt royal decrees and ministerial decrees is attributed and circumscribed by the higher level(s) of legislation. As a corollary, the regulation in a governmental or ministerial decree on a subject matter that falls outside the scope of the statutory act on which the decree is legally based is not permissible. Neither can legislation on the secondary or tertiary level be adopted if it contravenes norms laid down in the higher level(s) of the hierarchy. Delegation is performed on the basis of substantive criteria, which means that typically the legal basis for the adoption of a royal decree or a ministerial decree, which is entrenched in the higher level(s) of the hierarchy, expressly indicates what subject matter is to be ­elaborated on the lower level. Of course, the level of specificity varies; some legal bases contain very detailed descriptions of the contours of the secondary of tertiary legislation, whereas others are drafted in very broad terms. From the viewpoint of (democratic) control on the substance of secondary and tertiary legislation, a large measure of detail is to be



5 Article 6 ibid

82, first paragraph of the Constitution. art 89, first paragraph.

340  Emile Beenakker and Sjoerd E Zijlstra preferred over vaguely described legal bases for delegated legislation, even though this imposes limitations on the government’s or a cabinet minister’s options to adopt norms in response to unforeseen events. In any policy proposal that requires legislation sooner or later, the following question emerges: on which level of the hierarchy of norms should the anticipated rules be codified? In some cases, the answer to this question is given by the Constitution, which stipulates, for instance, that the budget should be authorised ‘by statutory act’.7 Thus, no delegation is allowed. A less restrictive approach can be derived from the terminology used in Article 11 of the Constitution, which provides that limitations on the enjoyment of the fundamental right to ‘physical integrity’ may also be imposed by royal decree. However, the courts adopt a lenient approach towards the legislature’s choice to adopt the norms deemed desirable at any level in the hierarchy of norms. Aside from the constitutional restrictions on the delegation of legislative powers, Dutch legislative policy contains criteria which provide additional guidance. The ‘main elements’ of the legislative proposal should be entrenched on the highest level of the pyramid, the statutory act, in order to enable Parliament to fully discuss its features. They include, for instance, legal remedies, administrative sanctions and the establishment of public bodies. Delegation to the level of ministerial decree is accepted only if it concerns technical or administrative matters, or if the norms at hand are expected to require frequent or quick amendment. It follows that everything that cannot be considered a legislative proposal’s ‘main elements’ on the one hand or its ‘technical or administrative matters’ on the other hand may be codified at the secondary level.

21.2.3.  Other Types of Law-Making In Dutch legislative practice, other types of law-making are also relevant. First, ‘public bodies’ can be endowed with the competence to adopt binding norms.8 They include quasi-non-governmental organisations (‘zelfstandige bestuursorganen’). However, under current legislative policy in the Netherlands, the attribution of legislative powers to quasinon-governmental organisations is permissible only with regard to subject matter of an operational or technical nature. Second, so-called ‘policy rules’ (‘beleidsregels’) are a commonly used instrument. Under the General Act on Administrative Law (‘Algemene wet bestuursrecht’), administrative bodies have the power to adopt policy rules.9 Policy rules are defined as written, general rules on, inter alia, the interpretation of legislative provisions. Therefore, policy rules can be viewed as an elaboration of legislative provisions, which make them highly relevant to the legal subjects to which the law at hand applies. Yet, the competence to adopt policy rules is limited to the execution of the powers expressly attributed to the administrative body, such as an inspectorate’s power to impose sanctions



7 ibid

art 105, first paragraph. art 134, second paragraph. 9 Article 4:81, first paragraph of the General Act on Administrative Law. 8 ibid

Legislation in the Netherlands  341 in response to violations of the law.10 Due to their limited scope, policy rules do not (unlike Acts of Parliament, royal decrees and ministerial decrees) formally possess the character of ‘legislation’.

21.3.  Legislative Procedure in the Netherlands This section will be dedicated to a further elaboration of the legislative procedure applicable to Acts of Parliament, in particular those that are instigated by the government (in contrast to initiatives launched by one or several members of the Second Chamber).11 Roughly four stages may be distinguished, which in total extend to two years, depending on the proposal’s complexity, although this period may be shortened significantly if its swift adoption is considered essential (as measured by a ‘political’ yardstick).12

21.3.1.  The Preparatory Stage The legislative procedure starts with the establishment that there is a problem that not only demands a solution, but also requires government action to provide that solution. Since these aspects will be discussed below (see section 21.4), at this point it may suffice to say that the responsible government ministry makes an assessment of the problem and of the possible solutions. If one possible solution emerges as the most adequate option, it must be assessed as to whether an Act of Parliament is required to bring about that solution. This assessment is made by the ministry’s policy officer(s) and legislative lawyer(s). If it leads to an affirmative answer, they draft a bill and an explanatory memorandum. Dutch legislative practice contains several checks to ensure the bill’s compatibility with interests that are considered part and parcel of the notion of ‘good-quality’ legislation. The body which is expected to monitor compliance with the instrument once it is enacted is requested to perform a review of the bill’s monitoring aspects and its enforceability (‘uitvoerings- en handhavingstoets’). Other reviews to be performed in this phase of the legislative process concern the bill’s administrative burden (‘regeldruktoets’), its consequences for personal data or, on a more general level, for the enjoyment of fundamental rights (‘grondrechtentoets’) and its environmental impact (‘milieueffectentoets’). They have in common that they are performed by governmental bodies that are either part of a government ministry or entities with an independent position. Around this time, the draft bill is also published on a publicly accessible website (www.internetconsultatie.nl) in order to give interest groups, companies and citizens the opportunity to comment on the draft bill.

10 ibid art 1:3, fourth paragraph. 11 Legislative proposals launched by members of the Second Chamber differ in several respects. The most important differences with government proposals relate to the first and (part of the) second of the stages described below, to which a member of the Second House is not bound. The legislative procedure of both categories of bills is very similar from the moment the Council of State is requested to deliver its advice. 12 In accordance with the case law of the Supreme Court, Dutch courts should not examine the question of whether the legislative procedure of a specific Act of Parliament was followed properly.

342  Emile Beenakker and Sjoerd E Zijlstra Over the past few years, this instrument has become widely used by government ministries. In the updated version of the explanatory memorandum, it must be explained to what extent the various reviews and the online consultation have led to an adjustment of the text or if not, why not.

21.3.2.  The Council of Ministers and the Council of State During the second stage of the legislative process, the proposal is approved by the Council of Ministers. The Council consists of all the cabinet ministers and has been delegated the task of discussing and deciding on the government’s ‘general policy’, which includes all bills that require parliamentary consent.13 Given the fact that all political parties that are part of the government are represented in the Council, the discussion of the bill inevitably concerns its political implications: does it have the support of all coalition parties and, as a consequence, of the majority in both Houses of Parliament? Moreover, if the bill gives rise to (persistent) disagreement between the first responsible ministry and one or more other ministries, the conflict is solved in the Council of Ministers. Its approval means that the responsible cabinet minister is authorised to seek advice from the Council of State, the government’s main ­advisory body in legislative matters. The Council of State makes an assessment of the proposal’s quality, which includes not only its legality and the quality of its drafting in a more technical sense, but also its policy aspects, as will be further explained in section 21.4 below. Often the Council of State’s advisory opinion (‘wetgevingsadvies’) contains specific suggestions as to how, in its view, the bill should be adjusted in order to improve its quality. The government’s response (‘nader rapport’) to the suggestions made by the Council of State marks the end of the second stage.14

21.3.3.  Assessment by Parliament The third stage of the legislative process is dedicated to the bill’s scrutiny in parliament, which, as was already explained in section 21.1 above, consists of a Second Chamber and a First Chamber (or Senate). This phase starts when the bill is submitted to the Second Chamber by the king on behalf of the government. At this point, four documents have become public: the bill itself, its explanatory memorandum, the Council of State’s advisory opinion and the government’s reaction to it. On the basis of these documents, the responsible parliamentary committee makes a first assessment of the proposal. In its written report (‘verslag’), all parties can comment on or ask questions on any aspect of the bill. If the committee considers the government response to its report (‘nota naar aanleiding van het verslag’) to be adequate, it may decide to proceed to the oral phase of the proceedings. In other cases, the parliamentary committee decides to publish a second written report

13 Article 45, third paragraph of the Constitution. 14 In cases in which the Council of State adopts a very critical stance towards a proposal submitted by the ­government, the (amended) proposal is discussed in the Council of Ministers for a second time.

Legislation in the Netherlands  343 (‘nader verslag’), to which the government responds again (‘nota naar aanleiding van het nader verslag’). Subsequently, the bill is discussed in a plenary session of the Second Chamber, during which Members of Parliament may also suggest amendments to the bill (‘amendementen’), before the bill and the amendments are put to a vote. If the Second Chamber votes in favour of the bill, it is sent to the First Chamber, where the proposal is subjected to a similar treatment: members of the parliamentary committee publish a written report on the government’s proposal (‘voorlopig verslag’) to which the government responds (‘memorie van antwoord’). Unlike members of the Second Chamber, members of the First Chamber do not have the right to table amendments; they can only vote on the proposal as a whole as it currently stands, ie, the government proposal as amended by the Second Chamber. Should an amendment be indispensable to obtain the First Chamber’s support for the bill, the government may decide to draft a new bill (‘novelle’) that amends the original bill. Since this new bill is, judging by its form, also an Act of Parliament, it has to go through all the stages of the legislative process discussed previously. As a result, it also requires the support of the Second Chamber. In this context, it should be noted that the First Chamber has a different mandate from the Second Chamber, not only electorally (members of the First Chamber are elected by the members of the provincial government; they lack the mandate enjoyed by the members of the Second Chamber, which are elected by the Dutch citizens during general elections),15 but also (or more accurately and therefore) with regard to its role in the legislative process. The First Chamber is generally expected to take a less political stance on the proposal than the Second Chamber and instead focus on a bill’s constitutional aspects, such as its ­consequences for the enjoyment of fundamental rights, and on the bill’s application in practice once it has become law. Its mandate is part of political custom, but is not generally adhered to in in theory and practice; the text of the Dutch Constitution does not contain any indication as to the scope of the First Chamber’s mandate, nor is it part of customary law. Although the number of bills rejected by the First Chamber remains low (only 69 since 1945), some constitutional lawyers argue that the First Chamber has become ‘too political’. For years, the role and legitimacy of the First Chamber has been subject of fierce debate in the Netherlands, which may not come to a conclusion anytime soon.

21.3.4.  Adoption, Publication and Entry into Force The legislative procedure’s final stage consists of its adoption, publication and entry into force. After its approval by both chambers of the States General, the bill is signed into law by the king and published in the Official Journal (‘Staatsblad’). Although it is common that the government has already clarified when the law should enter into force during the parliamentary scrutiny, this requires additional action by the government. In Dutch legislative practice, the determination of the date of entry into force is generally delegated to the government and set by royal decree. This is also the case when a bill was proposed by a member of the Second Chamber, which may give rise to the situation – in theory



15 Articles

54 and 55 of the Constitution.

344  Emile Beenakker and Sjoerd E Zijlstra at least – in which the government can prevent the adopted law from entering into force. As a rule, entry into force of an Act of Parliament is set at either 1 January or 1 July and not before two months have passed since its publication.

21.4.  Setting of Goals 21.4.1.  General Legislative Policy Until four decades ago, not much attention was being paid to the instrumental quality of legislation. The economic recession of the 1980s changed that. As in other Western countries, deregulation became a major theme in the Netherlands, resulting in the first general legislative policy. This policy consisted of systematic analysis of draft legislation on regulatory impact and costs for businesses. This was laid down in a checklist which had to be met when drafting legislation, the result of which had to be accounted for in the explanatory note of the bill. Still, because of its economic origins, the focus of this policy was on economic aspects of legislation, mainly costs for business. In the early 1990s, this policy was broadened to what is still in place as the general legislation policy. In 1991, this policy was laid down in a policy document called Legislation in Perspective (Zicht op wetgeving). From then on, the Ministry of Justice and Security (as it is now called) has been responsible for general legislative policy and safeguarding the legal and instrumental quality of legislation. Legislation in Perspective still holds the key features of what the Dutch government considers to be good legislation: (a) (b) (c) (d) (e) (f)

accordance with the law and legal principles; aptitude for implementation and enforceability; effectiveness and efficiency; subsidiarity and proportionality; coordination between legislation; simplicity, clarity and accessibility.

Accordingly, the Guidelines for Legislative Drafting (Aanwijzingen voor de wetgevingstechniek) which had until then held only instructions on the legal and technical aspect of drafting, were revised: the Guidelines for Legislation (Aanwijzingen voor de regelgeving – hereinafter ‘Ar’) which were published in 1992, although mainly focusing on technical aspects of legislative drafting, contained (and still contain) several principles of instrumental legislative quality, such as the need to analyse the problem and the goals of the legislation (Ar 2.3), enforceability (Ar 2.5) simplicity, clarity and accessibility (Ar 2.6), and guarding against unwanted side-effects (Ar 2.9). Although the Guidelines are the most comprehensive policy instrument for quality of legislation, several other documents and checklists were set up, concerning subjects like the effects on business (Bedrijfseffectentoets), effects on the environment (Milieueffectentoets), the red tape burden (Administratieve-Lastentoets) and its aptitude for implementation and enforceability (Uitvoerbaarheids- en Handhaafbaarheidstoets). In 2007, the Ministry of Justice designed an Integrated Assessment Framework (Integraal afwegingskader or IAK),

Legislation in the Netherlands  345 an electronic tool which contains seven questions that must be answered when drafting legislation: (1) (2) (3) (4) (5) (6) (7)

What is the reason for considering legislation? Who is involved? What is the problem? What is the goal? Why is government intervention necessary? What is the best instrument? What are the consequences?

Answering these questions results in an electronic ‘legislative file’. The Guidelines as well as the other checklists were integrated into the IAK.

21.4.2.  The Initiative for New Legislation The initiative for a new bill may stem from a large variety of sources, for instance, the advice of an advisory body, a parliamentary motion (in many cases the result of some incident which led to media attention), an EU directive, a decision by the courts or an initiative from within the civil service. The most important new initiatives stem from the Cabinet Programme (Regeerakkoord), a covenant between the coalition parties in the Second Chamber of Parliament for the ­duration of the time of government. As a cabinet in the Dutch constitutional system may govern for up to four years (and sometimes even a little longer), the legislative agenda is only dominated by the Cabinet Programme for about two years into the cabinet’s lifespan; after that, the problems of the day usually take over the agenda. The second important source of legislation is the need to implement EU legislation: mainly EU directives, but also EU regulations and decisions by the EU Commission or the Court of Justice. As stated above, the bulk of the bills originate from the government. Although the Second Chamber of Parliament has the right of initiative, this is in many cases (and increasingly so) used by the opposition to make a political point rather than using it to genuinely create new legislation.

21.4.3.  Safeguards for Legal Quality Bills are mostly drafted by legislative lawyers from a separate unit within the ministerial department, typically called the Legislative and Legal Affairs Unit. The legal quality of a bill (ie, conformity with the Constitution, general principles of law, and international and supranational law) is of course a main consideration for the drafter and his or her colleagues and superiors within the unit. Before it can be submitted to the Council of Ministers, every bill has to be reviewed16 by a special legislative reviewing unit within the Ministry of Justice

16 This

is laid down in Ar 7.4 of the Guidelines for Legislative Drafting.

346  Emile Beenakker and Sjoerd E Zijlstra and Security, called the Legal Affairs and Legislative Policy Unit (Sector Juridische Zaken en Wetgevingsbeleid or JZW). The legal quality of the bill is one of the main aspects of the review by the JZW. If no agreement can be reached between the JZW and the ministerial department which drafted the bill, this is noted on the memorandum by which the draft bill is submitted to the Council of Ministers. After the Council of Ministers, the bill is submitted to the (Advisory Unit of the) Council of State. There, the legal quality is also a key feature of the review process. Following negative advice of the Council of State, the bill has to be tabled again in the Council of Ministers. Specific attention should be given to legislation which stems from the Cabinet Programme. As such, it is more or less a given that this legislation will be submitted to Parliament and will be agreed upon by a majority of at least the Second Chamber: the review procedure of the JZW and the Council of State can do little to prevent this. It is here that the First Chamber of Parliament becomes a ‘safeguard of the last resort’ – the Chamber has been known to reject, for reasons of legal quality, government bills which are part of the Cabinet Programme.

21.4.4.  Safeguards for the Effectiveness and Efficiency of Legislation The aforementioned safeguards for the legal quality of legislation are more or less the same as the safeguards for instrumental quality (effectiveness, efficiency, enforceability and red tape burden). Again, the ‘first line of defence’ lies with the ministry where the bill is drafted, after which the JZW and later the Council of State also review the bill on its effectiveness and efficiency aspects. In the JZW review, the procedure of the IAK and its checklist play a role, although the JZW unit, flooded by draft bills and ordinances, has had to resort to letting many drafts go through without review; in a policy document, this was announced as a deliberate way of stressing the responsibility of ministerial departments for the quality of their own legislative products.17 A regulatory impact assessment (RIA) seldom takes place. The results of the JZW review are not made public. On some points of instrumental quality, specific reviews take place. The Ministry of Finance looks at the financial feasibility. A special semi-independent Commission on the Review of Administrative Burden (Adviescollege toetsing regeldruk or ATR) reviews regulatory impact and administrative burden for businesses as well as the government itself. For drafts of bills that will bring about significant change in terms of the rights and obligations of citizens or businesses or that will have a big impact on society, there is the mandatory procedure of internet consultation. This means that the text of the draft and the explanatory note, as well as the result of the IAK checklist, are published on the internet and those from all corners of society (citizens, businesses, universities, special interest groups etc) comment and make suggestions. After the Council of Ministers stage, the results of the internet consultations are made public, as well as the way in which the comments and suggestions have been dealt with in the draft. 17 Minister of Justice, Trust in Legislation (Vertrouwen in wetgeving) Parliamentary Papers II 2008/09, 31731, no 1.

Legislation in the Netherlands  347

21.5.  The Harmonisation of the Legislative Technique Dutch legislative policy gives considerable attention to matters of legislative technique in an attempt to improve the quality of laws. An important consequence is also that we can discern a tendency towards a harmonisation of the ways in which laws are drafted. In the present section, we discuss the way in which the uniform drafting of legislative proposals is secured. Without doubt, the most well-known instrument in this regard are the Guidelines for Legislation, which contain guidelines for legislative drafting by the central government. For legislative lawyers in the Netherlands, the Guidelines for Legislation is a highly influential document. Although they contain mere (non-mandatory) ‘guidelines’, in practice they are deviated from only in exceptional cases. For this reason, they largely reflect current legislative practice in the Netherlands. What do the Guidelines for Legislation prescribe with regard to legislative technique? We can distinguish three types of standards if we follow the categorisation of the relevant chapters of the Guidelines for Legislation. First, they provide guidance with regard to the structure and terminology to be used in legislative proposals. On a general level, legislative provisions should be drafted in a clear and concise manner and in plain language. Moreover, the terms contained in the legislative proposal should be used consistently, both throughout the text and in relation to other applicable legislative instruments. On a detailed level, the Guidelines for Legislation stipulate, to mention just a few examples, that provisions should be drafted in a gender-neutral manner and that the use of abbreviations and brackets should be avoided. They also prescribe how legislative texts should refer to (types of) legislative instruments, the overseas parts of the Kingdom of the Netherlands, monetary amounts, cabinet ministers and ministries, legislation and institutions of the EU, official publications etc. With regard to structure, the Guidelines for Legislation provide guidance on how legislative proposals should be structured. For instance, they stipulate that laws should be (sub-) divided if this contributes to the law’s accessibility and should specify the order in which certain elements should appear in the text. Second, the Guidelines for Legislation specify the mandatory components of legislative proposals. They include provisions on the law’s official name, its publication and entry into force, and the contents of its explanatory memorandum. For most of these topics, the Guidelines for Legislation prescribe sample provisions. Third, the Guidelines for Legislation prescribe how certain ‘optional’ elements of the bill should be drafted. Contrary to the elements that emerge in any piece of (draft) legislation, other elements will be included in the law’s text if the achievement of its objectives so require. If this is the case, the drafter of the text should take into account the applicable guidelines. A few examples may clarify this point and may give an indication to what extent the instruction for law-making contributes to the harmonisation of the legislative technique. With regard to the attribution of administrative powers, the Guidelines for Legislation stipulate in which cases a legislative text should refer to ‘licence’, ‘dispensation’, ‘authorisation’ etc. Furthermore, if it is deemed desirable to give public bodies the power to revoke or amend an administrative decision, they provide that the power to do so should be expressly attributed in the relevant piece of legislation. If a law regulates subject matter which includes

348  Emile Beenakker and Sjoerd E Zijlstra the processing of personal data, the legislative drafter should expressly indicate (in accordance with the applicable EU legislation on data protection) the purposes of the processing. Another topic that is subject to regulation by the Guidelines for Legislation concerns the inclusion of a legal basis for the imposition of administrative or criminal sanctions, for which some sample provisions are provided. With regard to these sanctions, the legislative drafter can and should also rely on the relevant and general rules laid down in the General Act on Administrative Law and the Penal Code. In addition to the value of the Guidelines for Legislation as guidelines for the day-to-day practice of legislative lawyers, they receive significant attention in legislative training (see section 21.7 below) and in the review process of draft proposals, most notably by the JZW unit and, later on, the Council of State. In this way, they play an important role in the spreading of knowledge of legislative technique among Dutch legislative lawyers. Therefore, we may conclude that the Guidelines for Legislation can be considered a truly successful attempt to harmonise the technique of legislative drafting in the Netherlands. Although the legislative drafter’s professional skills remain crucial, in particular for the parts of a legislative proposal for which the mere inclusion of sample provisions do not suffice, the Guidelines for Legislation certainly help to improve the consistency and quality of Dutch legislation.

21.6. Evaluation 21.6.1.  Ex Post Evaluation of Legislation Another important element of a law’s life cycle consists of its evaluation. Put simply, evaluation refers to the activity whereby a law’s effects in practice are assessed. It thus presupposes the law’s entry into force: ex post evaluation. If performed properly, the results can provide valuable insights for an amendment of the law in order to improve its effectiveness or quality. In this section, we discuss several aspects of the Dutch policy and practice with regard to the evaluation of legislation. Although legislation is frequently evaluated in Dutch legislative practice, strictly speaking, it is not obligatory under the legislative quality policy in the Netherlands. The Guidelines for Legislation do not, for instance, prescribe the performance of an evaluation of legislative proposals (with the exception of policy experiments – see below) as mandatory. However, it seems sensible to review a law’s application in practice. Especially when a piece of legislation is subject to intense political debate, Members of Parliament may force the responsible cabinet minister to promise that the law will be evaluated. In some cases, the law’s text is amended by a majority of the Second Chamber in order to add an express provision demanding an evaluation. In exceptional cases, the obligation to perform an evaluation does not derive from the special law at hand, but from a law of a more general character. Under the Framework Law on Quasi Non-governmental Organisations (‘Kaderwet zelfstandige bestuursorganen’), any Act of Parliament that provides for the establishment of a quasi-non-governmental

Legislation in the Netherlands  349 organisation should be evaluated every five years.18 A similar obligation applies to (delegated) laws that provide for government subsidies.19

21.6.2.  Periodic Policy Evaluations Similarly, pursuant to Article 4.1, first paragraph, sub-paragraph c, of the Act on the Management of the Government’s Financial Resources (‘Comptabiliteitswet 2016’), cabinet ministers are under an obligation to ‘periodically review the efficacy and effectiveness of policies for which they bear responsibility’. Given the fact that the scope of their responsibility is determined by the budget (as laid down in the relevant budgetary act) and the fact that virtually all government policies have their origins in the budget, the obligation to perform an evaluation of government policies is a very broad one. This is, of course, an important qualification of the statement (expressed above) that Dutch legislative quality policy does not prescribe the evaluation of legislation as mandatory. If we consider that laws are a particular form of codification of policies (although not limited to policies in an instrumental sense), it follows that laws are subject to the obligation to perform some sort of evaluation. However, such evaluation will not focus on the relevant law, but on the (much) broader policy of which the law is a part. The substance of this obligation is elaborated in a ministerial decree adopted by the Minister of Finance, which requires that the review of the policy’s efficacy and efficiency is well-founded and reliable, and should involve at least one independent expert.20

21.6.3.  Evaluation in Practice If we return to evaluations of laws instead of policies on a more abstract level, we can establish that such evaluations are performed by or on behalf of the government, which submits the results to both Chambers of Parliament. These may take various forms. In its simplest form, the evaluation may consist of an analysis made by the responsible policy officer of a government ministry, the results of which are included in a letter to Parliament. Although such evaluations can be very useful, they cannot be considered ‘independent research’. Because of this reason and other reasons (such as the available capacity), a government ministry may also give a consultancy firm an assignment to perform the evaluation on its behalf. The most authoritative evaluations of legislation are performed independently by academic institutions or institutions with a similar status. These often lead to voluminous reports based on scientific research, which are a rich basis for the subsequent debate in Parliament. When should the evaluation be performed? As a general rule under Dutch legislative policy, the evaluation of a law should be done after the passing of five years since its entry

18 Article

39, first paragraph of the Framework Law on Quasi Non-governmental Organisations.

19 Article 4 of the Ministerial Decree on periodic evaluation of policies (‘Regeling periodiek evaluatieonderzoek’). 20 ibid

art 2.

350  Emile Beenakker and Sjoerd E Zijlstra into force. Sometimes it appears to be practically or politically desirable to choose a shorter term than five years. The answer to the question of how much time should pass before a piece of legislation should be evaluated is often determined by, on the one hand, the desire to make a judgement on the law’s effectiveness as soon as possible and, on the other hand, the idea that it simply takes time before these effects can be adequately established.

21.6.4.  Policy Experiments Finally, a special category of ex post evaluation that deserves to be mentioned here consists of legislative proposals that provide for the performance of ‘policy experiments’. Such experiments may be desirable since they may generate important policy information. Sometimes, however, existing legislation imposes important limitations or may even prohibit such experiments altogether. If such an experiment is considered essential to obtain ­much-needed policy information, the legislator may initiate a legislative proposal that provides for a legal basis and framework to deviate from the existing laws. After its entry into force and the passage of a certain amount of time, it is crucial to make an assessment of the results of the experiment. Although the evaluation does not, strictly speaking, concern the effects of the law as such, but the effects of the experiment which it has made possible, The Guidelines for Legislation demand that the explanatory memorandum indicates how such evaluation will be performed.

21.7. Training21 In general, Dutch legislative lawyers hold a law degree with a specialisation in constitutional and administrative law, sometimes civil law, criminal law or international law. A course in legislation and legislative drafting is not part of the compulsory curriculum, and, if at all, is only taught in a Master’s programme in Dutch law.22 Because of this void in the legal education of legislative lawyers, in 2001 the Dutch Academy for Legislation23 was founded, another reason being the ‘Securitel affair’, which showed that knowledge of EU law was scarce amongst Dutch legislative lawyers. The Academy was founded by the government, in practice the Legislative and Legal Affairs Units of the ministerial departments. It is funded by the Dutch government, but also obtains funding through organising courses. The Academy offers a two-year Master’s programme. Each year, the Academy selects between 10 and 20 (out of over 100 applicants), usually young men and women who have recently obtained a Master’s degree in law. The programme is a form of ‘dual learning’: for

21 See WJM Voermans and SE Zijlstra, ‘Education, Knowledge-Exchange and the Role of Professional Legislative Drafters in the Netherlands’ in Felix Uhlmann and Stefan Höfler (eds), Professional Legislative Drafters: Status, Roles, Education (Zürich/St Gallen, Dike Verlag AG, 2016) 40–48. 22 The most elaborate course (12 European Credit Transfer and Accumulation System (ECTS) points, including a clinic in legislative drafting) is taught at the VU University Amsterdam. 23 http://academievoorwetgeving.nl/landingpage/english.

Legislation in the Netherlands  351 two days a week, the trainees follow courses at the Academy, while for the rest of the week they typically work at the Legislative and Legal Affairs Unit of a ministerial department, but sometimes at the Legislation Desk of the Second Chamber of Parliament or the Council of State. After graduation, it is customary – though not obligatory – that the graduate is hired at the ministry where he or she has been an ‘apprentice’ during his or her enrolment at the Academy. Until recently, recruitment of legislative lawyers at the ministries was a ‘closed shop’: legislative units at the ministries only recruited legislative lawyers from the ranks of Academy graduates. This practice now seems to have terminated. There is no obligation for the ongoing education of experienced legislative lawyers, but many acknowledge the need to keep up with relevant developments. The Academy for Legislation provides courses and training for experienced legislative lawyers. These courses concern either in-depth knowledge and skills in a certain field (legal or non-legal, such as negotiation skills) or recent developments in specific fields of law (such as the EU General Data Protection Regulation). Other institutions also organise courses on subjects which are relevant for legislative lawyers, for instance, universities (law schools), units within ministerial departments and private educational entrepreneurs such as Euroforum, Wolters Kluwer and Elsevier. In the Netherlands, the ties between practitioners and scholars of constitutional and administrative law have always been strong. It is not uncommon for scholars to start at the legislative law unit of a ministry or the Council of State after obtaining their PhD and to return as a professor after gaining practical experience in legislation.24 Recently, the management of many legislative law units within the government have encouraged their lawyers to teach at universities and participate in scientific research, in many cases even giving them time to write a PhD thesis. This has proven beneficial to both the lawyers and the units, as well as to the development of the knowledge of legalisation and legislative drafting.

Further Reading EB Beenakker, ‘The Implementation of International Law in the National Legal Order: A Legislative Perspective, PhD thesis, 2018, https://openaccess.leidenuniv.nl/ handle/1887/63079 P Eijlander and WJM Voermans, Wetgevingsleer (The Hague, Boom Legal Publishers, 2000) Proceedings of the (Dutch) Association for Legislation (1989–present), https://www. nederlandseverenigingvoorwetgeving.nl RegelMaat (Dutch quarterly on legislation and legislative drafting) (The Hague, Boom Legal Publishers) R van Gestel and M-C Menting, ‘Ex Ante Evaluation and Alternatives to Legislation: Going Dutch?’ (2011) 32(3) Statute Law Review 209–26 GJ Veerman, DRP de Kok and LJ Clement, Over wetgeving. Principes, paradoxen en beschouwingen, 3rd edn (The Hague, Sdu, 2012) SE Zijlstra (ed), Wetgeven (Deventer, Kluwer, 2012) 24 At the VU University Amsterdam, this is the case for all three current professors of constitutional and administrative law.

352

22 Legislation in Norway JON CHRISTIAN FLØYSVIK NORDRUM*

Context Norway is a parliamentary and constitutional democracy. The Storting (Parliament) plays a key position in the system.1 Norway has a long legislative tradition, having followed a systematic legislative approach since the eighteenth century.2 The Norwegian legal system, like other Nordic systems, is neither a common law system nor a civil law system, but rather inspired by different systems.3

22.1.  The Constitutional Framework and Structure of Legislation The Norwegian legislative system has a hierarchical structure, consisting roughly of the Grunnloven (the Constitution),4 lov (statutory legislation) and forskrifter (secondary legislation). The Grunnloven is at the top of the hierarchy and lays out the legislative procedure in §§ 75–79. The Storting has the legislative power (§ 75) and enacts statutes. According to the Constitution, the Parliament can delegate its legislative powers to the Council of State (Kongen i statsråd), the supreme body of the executive branch, consisting of the king,5 the

* Thanks to Michael Reiertsen and Thor Håkon Lindstad for their helpful comments on an early draft of this chapter. 1 This is a general trait of the Nordic parliamentary systems; see J Husa, ‘Constitutional Mentality’ in P Letto-Vanamo, D Tamm and BO Gram Mortensen (eds), Nordic Law in European Context (Cham, Springer, 2019) 44. 2 JØ Sunde, Speculum legale – rettsspegelen: Ein introduksjon til den norske rettskulturen si historie i eit ­europeisk perspektiv (Bergen, Fagbokforlaget, 2005), in particular 309; and D Michalsen, ‘Finnes det en norsk ­lovgivningstradisjon’ in A Syse, HC Bugge, H Indreberg and A Tverberg (eds), Lov, Liv og Lære – Festskrift til Inge Lorange Backer (Oslo, Universitetsforlaget, 2016) 341–51. 3 Sunde (n 2) 322. The Norwegian system is inspired by Roman, German, Danish, French, English and US law, but the main inspiration is German law through Danish law. On Nordic legal systems in general, see J Husa, K Nuotio and H Pihlajamäki (eds), Nordic Law: Between Tradition and Dynamism, (Antwerp, Intersentia, 2007). 4 Kongeriket Norges Grunnlov av 17. mai 1814. 5 The king is a constitutional monarch, a symbolic head of state, who performs representative and civic roles, but does not exercise executive or policy-making power.

354  Jon Christian Fløysvik Nordrum prime minister and the rest of the cabinet of ministers, but also to subordinate regulatory bodies of the state and to local government bodies. Within some fields, legislative power may even be delegated to private entities. There is a distinction between sentrale forskrifter (central secondary legislation) and lokale forskrifter (local secondary legislation).6 Local secondary legislation applies to a limited geographical area and is often enacted by local authorities. The Norwegian legislative system consists of individual statutes, not overarching codes.7 Statutes must therefore be read in connection with each other, and conflicts must be resolved through common interpretive principles like lex specialis and lex posterior. Hence, the Norwegian legislative system is fragmented, and statutes and provisions must be read with the caveat that there might be other statutes or provisions of relevance. Norwegian statutes may be of a general or special character. In most areas, there will be both general and special statutes that apply. An important example of a general statute is forvaltningsloven (the Administrative Procedure Act), which applies to any statute that applies to the administration unless the special statutes deal with the matter in particular. The generality might also be limited to some provisions in the statute. One example is naturmangfoldloven (the Nature Diversity Act),8 which states that the general principles in §§ 7–12 (eg, the precautionary principle) apply to all governmental activities regardless of the legal basis of the activity. Two statutes incorporating international obligations, § 3 of the menneskerettsloven (the Human Rights Act)9 and § 2 of the EØS-loven (the Act on the European Economic Area),10 contain a forrangsbestemmelse, a provision which stipulates that the statute shall prevail in the event of conflict with any other statute.11 This legislative technique establishes de facto a level in the legislative hierarchy between statutes and the Constitution, and is sometimes referred to as semi-constitutional. In addition, guidance on the interpretation of both statutory provisions and delegated legislation is given in veiledninger and retningslinjer (guidelines). In many areas, such as health and education, guidelines written by the ministries and directorates are, in practice, very important steering tools.

6 The latter corresponds roughly with the English term ‘by-laws’. In the Norwegian context, the same terms are used (forskrifter) and both categories are covered by Chapter 7 in lov 10. februar 1967 om behandlingsmåten i forvaltningssaker (forvaltningsloven) (the Administrative Procedure Act). 7 For the Nordic countries in general, see P Letto-Vanamo and D Tamm, ‘Nordic Legal Mind’ in Letto-Vanamo, Tamm and Gram Mortensen (n 1) 9. On Norway in particular, see H Bull, ‘European Law and Norwegian ­Legislation’ in PC Müller-Graff and E Selvig (eds), The Approach to European Law in Germany and Norway (Berlin, Berliner Wissenscafts-Verlag, 2004) 43–56. 8 Lov 19. juni 2009 nr. 100 om forvaltning av naturens mangfold. 9 Lov 21. mai 1999 nr. 30 om styrking av menneskerettighetenes stilling i norsk rett. 10 Lov 27. November 1992 nr. 109 om gjennomføring I norsk rett av hoveddelen I avtale mo Det europeiske økonomiske samarbeidsområde (EØS) mv. 11 The Norwegian constitutional system is dualistic. International law must be incorporated or transformed to become binding in Norway. However, the Supreme Court has applied presumsjonsprinsippet (principle of presumption) – when Norwegian law is interpreted and applied, it is presumed to be consistent with international law. See A Bårdsen, ‘The Norwegian Supreme Court and the Internationalisation of Law’, seminar at the Norwegian Supreme Court in Oslo, 2014, https://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/nsc-andthe-internationalisation-of-law.pdf.

Legislation in Norway  355 A striking feature of the hierarchy of norms is the extent to which decisions are ­ elegated, through explicit delegation, the use of vague and broad language or by reference d to other bodies of law outside the legislation itself.

22.2.  The Process of Legislation 22.2.1.  The Legislative Impulse The impulse to change or introduce new legislation may come from civil society, the Parliament or the government. Regardless of the origins of the initiative, it is often the case that the ministry responsible for the subject matter conducts an initial problem analysis. There is then a ministerial consultation to decide on how to proceed.12

22.2.2.  Lovutvalg (Law Committees) A lovutvalg (law committee) will typically be appointed in cases of important legislative work: ‘Especially for more comprehensive legislative projects it will be appropriate to appoint a law committee with representatives from different disciplines and interest groups.’13 This kind of ‘ad hoc advisory commissions have played a particularly vital role in the ­formulation of public policy, to the point that they have been described as a core element of the consensual Nordic model of government’.14 The chair of a law committee will typically be an experienced law professor.15 Other members, often 5–10 in number, are usually representatives of the interests involved or are different experts in the field. Recent decades have seen a shift from committees with strong corporative representation to committees with a stronger emphasis on experts.16 In most cases, political parties are not represented on the committees, although there are exceptions to this. Membership of committees is a part-time position. The committees are assisted by a secretariat, often composed of lawyers, but also other experts. The secretariat is normally employed on a full-time basis. A recent and representative example is the Opplæringslovutvalget (law committee preparing a new education act), which is chaired by an associate professor of law and

12 These rules on initial problem analysis and early intra-ministerial pre-consultations follow from Chapter 3 of utredningsinstruksen (Instructions for the Preparation of Central Government Measures) (Norwegian Government Agency for Financial Management (DFØ), 2016) on early involvement, intra-ministerial pre-consultations and consultations. 13 Veiledning om lov- og forskriftsarbeid (Norwegian Ministry of Justice, 2000) 29. 14 J Christensen and C Holst, ‘Advisory Commissions, Academic Expertise and Democratic Legitimacy: The Case of Norway’ (2017) 44 Science and Public Policy 821. 15 There is a long-standing tradition for law professors partaking in this kind of work. In the literature, such professors are referred to as lovutvalgsprofessorene (law committee professors), and work in lovutvalg is seen as pivotal work for law professors. See IL Backer, ‘Lovutvalgsprofessorene’ in KS Bull and M Halvorsen (eds), Det juridiske fakultet gjennom 200 år: Kontinuitet og fornyelse (Oslo, Dreyer Forlag, 2013). 16 J Christensen and C Holst, ‘Advisory Commissions, Academic Expertise and Democratic Legitimacy: The Case of Norway’ (2017) 44 Science and Public Policy 821.

356  Jon Christian Fløysvik Nordrum otherwise consists of a professor of political science, a professor of law, a professor and an associate professor of pedagogy, a director general from the Norwegian Ministry of Children and Equality, a rector at a high school, a deputy mayor of a small Norwegian municipality and a director of academic affairs in a large Norwegian municipality. A full-time secretariat of four lawyers and one teacher assists the committee. The recent use of law committees for major revisions of statutes within fields such as administrative procedure, local government, election, education, child welfare, mineral resources, harbours and criminal procedure bears witness to their importance. In fact, a major revision of an act will seldom be prepared in any other way than through a committee. Law committees work within a mandate and will typically be given between one and three years to submit its report. The committee is free to organise its own work,17 but will typically conduct expert hearings, open consultations, commission studies, synthesise relevant research and examine practice. The work is characterised by analyses of facts through deliberation and expert judgement. The committees spend a considerable amount of time establishing a ‘felles virkelighetsoppfatning’ (‘shared worldview’) and a ‘felles utfordringsbilde’ (‘common challenge assessment’).18 The committee will prepare a report, Norges offentlige utredninger, commonly referred to simply as an ‘NOU’ (Official Norwegian Report), which also contains a complete legislative bill. The NOU regularly consists of gjeldende rett (an analysis of current law, geltendes Recht), an (ex post) evaluation of the impacts of current legislation, a comparison with other ­countries, especially Nordic countries, a thorough discussion of the need for legislation, the proposed bill with explanatory remarks and finally an (ex ante) evaluation of the economic, administrative and other impacts of the proposal. However, the NOU does not contain a thorough formal analysis of the impacts of legislation, either ex ante or ex post. The committee is responsible for the whole inquiry from the gathering of facts to the drafting of the bill. This holistic approach might encourage realism in the committee’s work; the drafting of legislation often serves as a litmus test for legislative proposals. It is fitting to describe the committee’s work as a systematic ‘strategy of plausible arguments’.19 Law committees and NOUs form the backbone of the Norwegian legislative system. In order to understand how Norwegian legislation is prepared, formulated and applied, it is essential to understand this stage in the process.

22.2.3. Consultations After the NOU is submitted to the responsible ministry, the ministry conducts a høring (public consultation). All interested parties are invited to comment on the report in ­writing. The utredningsinstruksen (Instructions for the Preparation of Central Government Measures) sets the standard timeframe for comments to three months, but it is common to 17 Nonetheless, there is a guide for chairs, members and secretariat to committees; see Utvalgsarbeid i staten – En veileder for ledere, medlemmer og sekretærer i statlige utredningsutvalg (Norwegian Ministry of Local Government and Modernisation, 2019). 18 ibid 33. 19 W Bussman, ‘Evaluation of Legislation: Skating on Thin Ice’ (2010) 16 Evaluation 279, 288.

Legislation in Norway  357 grant six months for more comprehensive reports. The minimum requirement is six weeks (see section 3-3 of the utredningsinstruksen). There are three exceptions to the consultation requirement: if the consultation ‘would not be practicable’, ‘may complicate the implementation of the measure’ or ‘must be considered obviously unnecessary’. In general, the threshold for qualifying for these exceptions has been set high.20 A distinct consultation process is consultations between the state authorities and Sametinget (the Sami Parliament). As a partly sovereign indigenous people, the Sami have the right to be consulted in matters that may affect them directly, which is often the case for Norwegian legislative processes.21 After the consultations, there is an inter-ministerial consultation before a lovproposisjon (legislative proposition) is written. The lovproposisjon reflects the proposals in the NOU and the most important views in the consultation, the responsible ministry considerations as well as a draft bill. If there are major revisions from the NOU (see section 22.2.2 above), the ministry must conduct new consultations. Often the bill in the lovproposisjon is close to the bill in the NOU.

22.2.4.  The Parliamentary Decision-Making Process The Grunnlov as well as Stortingets forretningsorden (Rules of Procedure for the Storting)22 govern the decision-making process in the Parliament. The bill is presented to the Storting by the minister responsible for it. The bill is then prepared in the relevant stortingskomité (standing parliamentary committee) and is then debated and decided through two plenarvedtak (decisions by plenary Storting).23 There must be an interval of at least three days between the first and second reading of the bill (see § 75 section 3 of the Grunnloven).24 Bills are dropped if they are dismissed at the first reading. A third reading is necessary if the bill is not passed at the second reading. The amount of work carried out before Parliament receives the bill is characteristic of the Norwegian legislative process and it is rare that Parliament makes changes to the bill.25 If Parliament wants to make changes, the normal procedure is to return the bill to government, with some directions on how it should be altered. The konstitusjonell avdeling (constitutional department) within the administration of the Storting is responsible

20 Guidance Notes on the Instructions for Official Studies: Instructions for the Preparation of Central Government Measures (Norwegian Government Agency for Financial Management (DFØ), 2016) (English translation.) 21 This right derives from art 6 of ILO Convention No 169 on indigenous peoples and tribal peoples in independent countries. The consultation procedure is described in Procedures for Consultations between State Authorities and the Sami Parliament (Ministry of Local Government and Modernisation, 2005). It has been proposed that the the procedure be regulated by a new Chapter 4 in lov 12. Juni 1987 nr. 56 om Sametinget og andre samiske rettsforhold (the Sami Act); see the bill Prop 116 L (2017–2018) Endringer i sameloven mv. The Sami people are a Finno-Ugric people inhabiting Sápmi, which encompasses large parts of Norway, especially the northern and eastern parts. 22 Stortingets forretningsorden (Oslo, Norwegian Parliament, 2018). 23 Until the Constitution was changed in 2009, the Storting consisted of two chambers: Lagting and Odelsting. 24 This requirement follows from § 75 section 3 of the Constitution. 25 BE Rasch, ‘Legislative Debates and Democratic Deliberation in Parliamentary Systems’, paper presented at the Oslo-Yale International Workshop on Epistemic Democracy in Practice, Yale University, New Haven, 20–22 October 2011, 11.

358  Jon Christian Fløysvik Nordrum for constitutional questions, rules of procedure and assisting the committees in legislative matters. However, this department does not provide legal or factual analyses to the committees. § 75 section 1 of the Grunnloven states that a bill may be presented to the Storting either by a representative of the Storting or by a minister. As described above, the usual manner is that the bill is presented by a minister on behalf of the government, but sometimes a representative presents a bill, a representantforslag (Private Member’s Bill). The Kongen i Statsråd (Council of State) approves the enactment of a bill adopted by the Storting with the royal assent, and the king countersigns (see § 78 of the Constitution). The king’s approval is symbolic and the king has not refused to sign a bill in modern times. If the king refuses to sign, the Storting may present the bill anew after an election. The bill may then be enacted even without the king’s signature. The preparation of secondary legislation (central and local) is subject to procedural requirements in the Administrative Procedure Act. The procedural requirements to conduct public consultation are to a large extent the same as for legislation, but the most common way to prepare secondary legislation is on the basis of a consultation note prepared by the administration. Secondary legislation is seldom prepared in law committees.

22.2.5.  NOUs and Other Preparatory Works as Sources of Law Norwegian courts have a long tradition of using preparatory works as a source of law.26 In particular, the courts attach considerable weight to specific interpretative guidelines given in the explanatory notes to each section. In the legislative guidelines, it is stated that the notes should clarify how the terms in the legal text should be understood, should refer to other provisions that the relevant provision must be viewed in conjunction with and should indicate which arguments are relevant in discretionary judgements.27 The most important preparatory works are the NOU, lovproposisjon (the legislative proposition), innstilling til Stortinget (the recommendation of the relevant Standing Committee of the Parliament) and the official report of the discussions in plenary Parliament. In practice, the lovproposisjon is by far the most important document. Due to the linear, chronological character of the Norwegian legislative process, it is easy to discern clear guidance from the preparatory works; there are seldom significant, uncommented contradictory remarks. The Norwegian tradition of emphasising clarifications in preparatory works is controversial. As acknowledged in the guidelines, to some degree, preparatory works amount to a ‘hidden part’ of the statutes. Since the accessibility of these documents are harder to access, it might hinder legislative communication.28 Another point of criticism is that the process prior to a bill being presented to the Storting in general, and the use of preparatory works as a legal source in particular, may

26 See A Tverberg, ‘The Use of Preparatory Works as a Source of Law in the Norwegian Legal System’ (2016) Journal of Legislative Evaluation, Korea Legislation Research Institute 205. 27 Lovteknikk og lovforberedelse – Veiledning om lov- og forskriftsarbeid (Oslo, Norwegian Ministry of Justice, 2000) 25. 28 ibid 6.

Legislation in Norway  359 prepare the way for a bureaucratic and corporative dominance over the legislative process, and thus diminish the role of the Storting.29 The counter-argument is that use of ad hoc law committees and open consultations involves civil society early on in the legislative process and thereby enables other forms of public participation than merely through parliamentary elections and hearings. A third criticism is that a diminishing emphasis on the text of the statutes themselves risks weakening legal predictability, which is particularly important in the field of administrative and criminal law.

22.2.6.  Judicial Preview and Review of Legislation There is no mechanism for judicial preview (ex ante review) in the Norwegian system, like the Swedish Lagrådet (Law Council). However, the ministry responsible for the legislative bill must clarify whether the bill is in accordance with the Constitution and international law, in particular the European Convention on Human Rights (ECHR) and the Agreement on the European Economic Area (EEA Agreement), which both prevail if there is a conflict with ordinary Norwegian law (see section 22.1 above).30 Quite often, the ministry will ask for a tolkningsuttalelse (an advisory legal interpretation) from Lovavdelingen (the Legislation Department of the Ministry of Justice) on questions of constitutional and human rights consistency. In this capacity, Lovavdelingen operates independently of the Ministry of Justice and will answer in its own capacity, only informing the Ministry of Justice after issuing its opinion. Høyesterett (the Supreme Court) will review whether legislation is in accordance with the constitution and human rights only if prompted by a concrete case post enactment.31 Indirectly, this review also poses a procedural and material requirement to assess the constitutionality prior to enacting the legislation. Høyesterett has emphasised that the prior assessment of the constitutional questions in the legislative bill, and in the parliamentary discussions – in particular, the thoroughness and whether the correct constitutional norms have been applied – has a bearing on the intensity of the ex ante constitutional review by the Supreme Court in a concrete case.32

22.3.  Legislative Information According to lov om Norsk Lovtidend (the Statute on the Official Legal Gazette),33 statutes must be published in the Norsk Lovtidend. Secondary legislation must be published in the Norsk Lovtidend too, according to § 38 of forvaltningsloven.

29 See, eg, K Bergo, Høyesteretts forarbeidsbruk (Oslo, Cappelen akademisk forlag, 2000) 27. 30 The duty to clarify this can be seen as implicit in the constitutional requirement to inform the Parliament properly (§ 82 of the Constitution); it is also stated in Lovteknikk og lovforberedelse – Veiledning om lov- og forskriftsarbeid (n 27) 164. 31 On judicial review of legislation in Norway in general, see A Kierulf, Judicial Review in Norway: A Bicentennial Debate (Cambridge, Cambridge University Press, 2018). 32 See in general ibid, particularly 206–36. 33 Lov 19. juni 1969 nr. 53 om Norsk Lovtidend mv (Norwegian Ministry of Justice, 1969).

360  Jon Christian Fløysvik Nordrum In practice, hardly any Norwegian lawyer reads the Official Legal Gazette. Since 1926, Norwegian statutes have been consolidated and compiled in a single volume by Lovsamlingsfondet, a non-profit organisation run by the Faculty of Law at the University of Oslo. The volume was published bi-annually up to 2007 and annually thereafter. Statutes are organised chronologically. The volume is supplemented with a subject index and each statute is given editorial notes and cross-references. Lovsamlingsfondet announced that the latest edition (Norges Lover 1687–2018) will be the last. This decision concludes the transformation from hard copies to digital dissemination of legislation. In 1981 Stiftelsen Lovdata (the Legal Data Foundation) was established with the purpose of establishing and operating legal information systems. The board is composed of representatives from the Bar Association, the Ministry of Justice, the Norwegian Judge Association, the Faculty of Law at the University of Oslo and the Parliament. Stiftelsen Lovdata was established as a private foundation to ensure its independence. Through the establishment of Lovdata, secondary legislation was consolidated from 1982 to 1984. Lovdata launched its website publishing the Official Gazette on 1 January 1995, being the first European country to do so. From 2001, the electronic announcement became the official form of publication.34 In practice, Lovdata has been the main provider of legislative information for Norwegian lawyers the last 20 years.

22.4.  Legislative Technique and Language 22.4.1.  Formal Requirements There are some formal requirements on how legislation is developed. These follow from the Guidelines of the Ministry of Justice.35 Unless the statute is short (10–20 sections), it will be divided into chapters and, for the most comprehensive acts, into parts, eg, straffeprosessloven (the Criminal Procedure Act)36 and tvisteloven (the Dispute Act).37 The statute is divided into sections, indicated by the § symbol. These sections are in turn divided into ledd (sub-sections) and might be further divided into numbers or letters. Numbering of sections is done consecutively. However, if it is a comprehensive act, chapter-wise numeration might be chosen (§ 1-1, § 1-2, § 2-1 etc). Sometimes, as a result of amendments, there might be additional sections that are given a letter (§ 1a, § 1b) and similarly for chapters (§ 2A-1). Chapters and provisions typically have individual titles, the latter in italics and often in parentheses. In some statutes, there is an introductory paragraph with definitions of the core concepts in the statute, but this is neither obligatory nor common. The recommendation is to avoid

34 T Harvold, ‘Hva betød digitaliseringen av rettsinformasjon?’ (2011) 1 Lov og Data 106. 35 Lovteknikk og lovforberedelse (n 27). The guidelines draw heavily on a major report on legislative structure and technique from 1992: NOU 1992:32 Bedre struktur i lovverket. 36 Lov 22. mai 1981 nr. 25 om rettergangsmåten i straffesaker. 37 Lov 17. juni 2005 nr. 90 om mekling og rettergang i sivile tvister straffesaker.

Legislation in Norway  361 unnecessary definitions; there must be an interpretative need for further clarification. If the intended meaning of a term coincides with the common understanding of the term, there is typically no need. Sometimes a particular term is defined in the provision in which it first appears. There are no preambles in Norwegian statutes. However, it is common to include a formålsbestemmelse (purpose clause) at the beginning of the statute. These clauses communicate the most important legislative considerations that underpin the statute. The legislative language is typically short, vague and general rather than long, precise and specific. One reason for this is the emphasis put on preparatory works when ­interpreting Norwegian statutes (see section 22.2.5 above). In particular, the section with merknader (explanatory remarks) can provide clarification and examples that make it possible to keep the statutory text brief and concise. The ideal is to write accessible statutes without losing the necessary precision. Over the last decade, attention to good legislative language has increased. Norway has two distinct written variants of Norwegian, nynorsk and bokmål.38 Statutes and delegated legislation are written in either nynorsk or bokmål. One exception is the Grunnloven, which is written in both. It is a political ambition that 25 per cent of the legislation is written in nynorsk.39 There is also an aim that delegated legislation is written in the same language as the enabling statute.40 Norwegians in general are able to read both variants, although there has been some debate as to whether nynorsk, and in particular more conservative forms, are hard for some citizens to understand fully.41

22.4.2.  The Process of Drafting The bills are drafted in law committees if that procedure is chosen (see section 22.2.2); if not, there will be a draft by the ministry in charge. Either way, the final drafting takes place in the responsible ministry. At the end, the draft is submitted to Justisdepartementets lovavdeling (the legislation department within the Ministry of Justice). The legislation department is a legal expert body that, in addition to other tasks, has the responsibility for the overall quality of legislation. The department performs a lovteknisk gjennomgåelse, a review which ensures that the bill adheres to formal and linguistic requirements. The department might suggest changes to the bill, which the responsible ministry might follow up on.

38 See LS Vikør, ‘Norwegian: Bokmål vs. Nynorsk’ Språkrådet, 2015, https://www.sprakradet.no/Vi-og-vart/ Om-oss/English-and-other-languages/English/norwegian-bokmal-vs.-nynorsk. 39 St. meld nr. 35 (2007–08) Mål og mening – Ein heilskapleg norsk språkpolitikk (White Paper on Language Policy) 193. This ambition corresponds with the general requirement that there is an alternation between the language variants so that there is a reasonable quantitative distribution between them. As of 2012, 25 per cent of all public correspondence and 15 per cent of legislation was written in nynorsk. 40 ibid. 41 See, eg, GÅ Vatn, PF Eriksen and H Fjørtoft (eds), Klart lovspråk? Juridiske tekster i et virksomhetsperspektiv, (Trondheim, NTNU Institutt for språk og litteratur, 2015), which is a study on the comprehensibility of legal text in four different statutes.

362  Jon Christian Fløysvik Nordrum

22.5.  Regulatory Impact Assessment, Evaluation and Experimental Legislation 22.5.1.  Brief Historical Background The debate on the effects of laws and evaluation occurred early on in Norway. An example is the study on the impacts of the Housemaid Act42 of 1952.43 The Parliament intended to review the law after a period and the study was published as part of the legislative bill prepared by Hushjelpslovkomiteen (the House Maid Act Committee).44 This is one of several examples of close cooperation between legal sociology and law-making in this period. Regular assessment and evaluation of regulatory impacts have been on the agenda at least since a committee published an NOU on the administrative and economic impacts of legislation in 1973.45 The report discussed regulatory impact assessment and described the regulatory cycle. Since then, an assessment and description of economic and administrative consequences has been mandatory and is usually given in a separate chapter in an NOU. In the 1980s, discussions on the cost-benefit analysis of legislation received renewed attention with an extensive White Paper on regulatory reform,46 which was inspired in part by American reforms.47 Since the 1980s, there have been several reforms to improve the legislative process.48 In practice, the systematic use of legislative committees is the most important tool for assessing impacts ex ante and ex post (see section 22.2.2 above).

22.5.2.  Regulatory Impact Assessment § 82 of the Grunnloven places a general duty on the government to inform Parliament. There are other constitutional provisions that more explicitly create a legal requirement to assess effects, eg, § 104 (effects of any government decisions on children) and § 112, which states that ‘citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out’. The overall requirements are specified in, most importantly, utredningsinstruksen.49 Section 2.1 lays out the minimum requirements, which is to answer the following questions: (1) What is the problem and what do we want to achieve? 42 Midlertidig lov 3. desember 1948 nr. 5 om arbeidsvilkår for hushjelp. 43 V Aubert, T Eckhoff and K Sveri, En lov i søkelyset: Socialpsykologisk undersøkelse av den norske hushjelplov (Oslo, Akademisk Forlag, 1952). The study and its aftermath are described in V Aubert, ‘Some Social Functions of Legislation’ (1967) 10 Acta Sociologica 98. The study is described as ‘bahnbrechende Untersuchung’ (groundbreaking) in P Noll, Gesetzgebungslehre (Reinbek, Rowohlt, 1973). 44 Innstilling til lov om arbeidsvilkår for hushjelp mfl. 45 NOU 1973:52 Administrative og økonomiske konsekvenser av lover mv. 46 St. meld. nr. 57 (1984–85) Arbeidet med regelreform i forvaltningen. 47 See especially the executive order on regulatory impact assessment: Presidential Executive Order No 12291: Federal Regulation (17 February 1981). 48 See in general JCF Nordrum, Bedre regulering? Årsak-virkningsanalyser i norsk reguleringsprosess med eksempler fra miljøregulering av næringsvirksomhet (Oslo, Universitetet i Oslo, 2017) 39–58. 49 Guidance Notes on the Instructions for Official Studies (n 20).

Legislation in Norway  363 (2) Which measures are relevant? (3) Which fundamental questions are raised by the measures? (4) What are the positive and negative effects of the measures, how permanent are these and who will be affected? (5) Which measure is recommended and why? (6) What are the prerequisites for successful implementation? Furthermore, it is stated that the ‘study shall encompass effects for individuals, private and public sector businesses, central, regional and local government bodies, as well as other affected parties’. The instructions section 2.2 lays out a proportionality requirement. An assessment must be as thorough as required, taking into consideration whether the measure raises ‘important fundamental questions’, ‘how significant the effects are expected to be’ and the ‘time available’. If the measure is expected to involve major benefits or cost, including ‘major central government budget implications, an analysis shall be performed in accordance with the current circular on cost-benefit analysis’. This means that for most bills, there is in fact a requirement to perform a full-fledged cost-benefit analysis.50 In practice, impacts are seldom quantified and there are hardly any examples of successful attempts of conducting cost-benefit-analysis.51 There are several reasons for this – one is that the Norwegian regulatory technique makes it hard to analyse the impacts of legislation. In particular, extensive delegation to the administration, short and vague legislative language, a pragmatic legal culture with little weight on precision, formalities and control, and, lastly, the fact that statutes and delegated legislation can easily be changed pose significant problems for impact assessment.52 Legislation made in this way is best described as a continuous dynamic process with an extensive vertical structure. In order to be meaningful, regulatory impact assessments must be conducted when concrete administrative decisions are made rather than at the general level of statutes. Attempts were made to introduce the standardised cost method (SCM) actively into the Norwegian legislative process in the 2000s.53 The attempts proved costly and futile, and such procedures are no longer applied. The debate on regulatory impact assessment has been brought to life after the Organisation for Economic Co-operation and Development (OECD) gave the topic attention. The OECD perspective has influenced discussions and reforms, especially after a country review on Norway from 2003.54 The OECD describes the Norwegian legislative approach as characterised by consensus-building, participation, gradual change and pragmatism.55

50 Such analysis is to be conducted in accordance with the circular Rundskriv R-109/2014 Prinsipper og krav ved utarbeidelse av samfunnsøkonomiske analyser mv (Norwegian Ministry of Finance, 2014), and the guidance Veileder i samfunnsøkonomiske analyser (Norwegian Government Agency for Financial Management (DFØ), 2016). 51 This is documented in several reports, ie, Direktoratet for økonomistyring, ‘Tilfredstiller statlige utredninger utredningsinstruksens krav? En nullpunktsmåling ved iverksettelse av ny instruks i 2016’ (2017). 52 There are few procedural and material hurdles to pass in order to revise statutes and secondary legislation. It is fitting to describe the Norwegian legal system as a system with a generally low level of ‘resistance to change’, which has bearings on how the system works. On ‘resistance to change’, see J Raz, The Concept of a Legal System: An Introduction to the Theory of the Legal System (Oxford, Clarendon Press, 1980) 184. 53 See Nordrum, Bedre regulering? (n 48) 416–22. 54 OECD, Norway – Preparing for the Future Now (Paris, OECD Publishing, 2010). 55 ibid 19.

364  Jon Christian Fløysvik Nordrum In spite of not highlighting any problems with this approach,56 the OECD recommends a shift to evidence-based regulation, ie, emphasising formal regulatory impact assessment and centralised oversight over such assessment. It stipulates that ‘the tradition of consensusbased decision making is likely to come under strain from this approach’, but ‘decisions are likely to be more durable and effective’.57 The critique and recommendations from the OECD have led to reforms, inter alia, a revision of utredningsinstruksen in 2016 putting more emphasis on cost-benefit analysis etc, as well as the establishment of the Regelrådet (Better Regulation Council) in 2016.

22.5.3.  Regelrådet (Better Regulation Council) The Regelrådet is responsible, inter alia, for evaluating whether impact assessments have been carried out in accordance with utredningsinstruksen. It evaluates both statutes and delegated legislation, and communicates its assessment in a report and through red, yellow and green cards.58 It is a member of RegWatchEurope.59 It gives its assessment in the ordinary public consultation prior to the ministerial process of writing the final bill. In this respect, it differs from many other regulatory oversight bodies. It has contributed to awareness of regulatory impact assessments and has had some impact on practice. In the Norwegian system, there is no parliamentary regulatory oversight body.

22.5.4.  Evaluation of Legislation There is no specific statutory requirement to perform ex post evaluation on primary or secondary legislation. A general requirement to perform evaluations follows from Reglement for økonomistyring i Staten (Regulations on Financial Management in the Central Government).60 According to section 16 of the Regulations: ‘All agencies shall ensure that evaluations are performed to obtain information on efficiency, achievement of objectives and results within the agency’s entire area of responsibility and activities or within parts thereof.’ The Parliament has emphasised the need for evaluation in general. One important example is the statements from a special parliamentary committee considering the extensive research project and report on power and democracy, Makt og demokratiutredningen.61 The committee noted that ‘today there is not any systematic review or assessment of

56 Elsewhere in the report, it is pointed out that the ‘Nordic model of governance only works effectively in small, homogeneous societies. The consensus-based approach to decision-making draws its strength and effectiveness from a close and informal network of contacts within government and society, based on mutual trust’. ibid 21. 57 ibid 64. 58 Vedtekter for Regelrådet, kgl. res.11. desember 2015, Nærings- og fiskeridepartementet. 59 RegWatchEurope is a ‘network of independent external advisory bodies that play a significant role in ­scrutinising the impacts of new legislation’. See https://www.regwatcheurope.eu. 60 Regulations on Financial Management in the Central Government (Norwegian Ministry of Finance, 2003). 61 NOU 2003:19 Makt og demokrati.

Legislation in Norway  365 adopted laws’ and recommended further work ‘aimed at establishing mechanisms to ensure that the Parliament is given feedback on whether adopted laws function as intended’.62 Over the last decade, the Parliament has asked the government several times to evaluate specific legislation through anmodningsvedtak (a petition resolution) within a certain timeframe. It is still up to the government to clarify the scope of evaluation, which method to use and how to manage the evaluation process. The Parliament has also emphasised the need to evaluate secondary legislation63 and it may decide that the executive branch must evaluate secondary legislation, but this is not often occur. It is more common that the executive branch itself decides that a piece of secondary legislation should be evaluated. In the last decade, there have been several major evaluations of legislation, which have differed in scope; some concern single provisions, while others concern larger legislative fields. Another important institution when it comes to evaluating legislation is Riksrevisjonen (Office of the Auditor General). In accordance with § 9 of riksrevisjonsloven64 (the Auditor General Act), Riksrevisjonen shall ‘conduct systematic analyses of the economy, productivity, goal attainment and effectiveness of the Parliament’s decisions and intentions’. Through such forvaltningsrevisjon (performance audit), Riksrevisjonen provides relevant information to the Parliament on how, inter alia, statutes and delegated legislation work. The description in one of the reports translated to English is illustrative: ‘this investigation … assesses whether the regulations, the controls and the cooperation with the EU are helping to ensure sustainable fisheries’.65 Within many fields, performance audits have been the most comprehensive evaluations done and many have had a considerable impact – examples include legislation on fisheries, oil and gas, aquaculture, kindergarten, freedom of information and pollution. Riksrevisjonen reports to the Parliament, but it ‘shall perform its tasks independently and decides itself how the work shall be organised’ (§ 2 riksrevisjonsloven).

22.6.  Temporary and Experimental Legislation Different forms of temporary legislation have been used in the Norwegian legislative system for a long time. Article 17 of the Constitution grants the government the power to enact provisoriske anordninger (temporary laws), which ‘apply on a provisional basis until the next [session of the Storting]’. This basis can only be used as long as the Storting is not assembled. Substantial tax legislation, which must be renewed every year, is another example.66

62 Innstilling fra Den særskilte komité nedsatt av Stortinget 18. mars 2005 for behandling av St.meld. nr. 17 (2004–2005) Makt og demokrati 33. 63 On sunset and evaluation clauses in the Norwegian regulatory system, see A Tverberg, ‘The Use of Sunset and Evaluation Clauses in the Norwegian Legal System’ (Seoul, Korea Legislation Research Institute, 2017). 64 Lov 7. april 2004 nr. 21 om Riksrevisjonen (Norwegian Ministry of Finance, 2004). 65 Riksrevisjonen, ‘The Office of the Auditor General of Norway’s Investigation of Fisheries Management in the North Sea and Skagerrak’, Document 3:9 (2016–17) (English translation). The method used in the report is representative: ‘The audit questions have been evaluated through the analysis of statistics, documents and interviews and observations of aspects of landing inspections performed by the Directorate of Fisheries’ (at 41). 66 See § 75 letter a of the Grunnloven.

366  Jon Christian Fløysvik Nordrum From time to time, the Storting passes midlertidige lover (temporary laws). There are usually very specific reasons for this type of legislation. Certain types of secondary legislation are given periodically. One important example is quota limits for fisheries, which is decided on an annual basis according to Chapter 3 of havressursloven (the Marine Resources Act).67 There has been a debate concerning whether to introduce ‘sunset clauses’ or ‘evaluation clauses’, but there is still no general requirement to use such mechanisms or any systematic use of it in Norwegian primary and secondary legislation.68 Although there is no systematic use of experimental legislation, there are some instruments that are worth mentioning. There is a general law on experiments in the public sector: forsøksloven.69 The law enables the king to derogate from statutes. The experimental period is limited to four years. It is also worth noting that flexibility in typical permit systems gives considerable space for experimenting and there are several examples of specific permits (eg, research permits and green permits) that are designed to facilitate experimentation.

22.7.  Legisprudence in Education Norwegian legal education is not focused on teaching questions on what the law should be, how to manage a legislative process and how to draft legislative text. The primary focus of the education is on legal interpretation and how to apply law. The only course that deals with legislative question directly is an elective course at the Faculty of Law at the University of Oslo called lovgivningslære (legislative studies, Gesetzgebungslehre). The course is short, amounting to only a third of a semester. The Ministry of Local Government and Modernisation has initiated a joint effort with the Faculty of Law in Oslo to strengthen education and research on legislative language. As part of this effort, the Faculty of Law is cooperating with the Institute of Linguistics and Nordic Studies on an innovative bachelor’s programme focused on clear governmental language. The programme includes a course on klart lovspråk (clear legislative drafting). Since 2007, the Juristenes Utdanningssenter70 (Centre for Continuing Legal Education) has offered a two-day intensive course on legislative preparation and drafting. The participants are typically involved in drafting legislation in ministries, directorates, law committees or municipalities. At both the Faculty of Law at the University of Bergen and the University of Oslo, there are efforts to introduce empirical legal studies more systematically into legal education, as well as a systematic approach to legal writing, including drafting legislation.

67 Lov 6. Juni 2008 nr. 37 om forvaltning av viltlevande marine ressursar (Norwegian Ministry of Trade, Industry and Fisheries, 2008). 68 Sunset clauses were first proposed in a White Paper on regulatory reform from 1985, St.meld. nr. 57 (1984–85) Arbeidet med regelreform i forvaltningen. Proposals to introduce sunset clauses systematically have been dismissed by the Storting (see, eg, Innst. O. nr. 77 (2000–01)) and was considered thoroughly in Ot.prp. nr. 87 (2002–03) Om lov om retting av feil mm i lovverket, where the key arguments were that such mechanisms would require more resources than its contribution to better legislation would justify and that sunset clauses also might create legal uncertainty. 69 Lov 26. juni 1992 nr. 87 om forsøk i offentlig forvaltning. 70 Juristenes utdanningssenter is a non-profit membership association, with Advokatforeningen (the Norwegian Bar Association) and Juristforbundet (the Norwegian Association of Lawyers) as members.

Legislation in Norway  367

Further Reading I Backer, Lov og lovgivning – Artikler og foredrag (Oslo, Universitetsforlaget, 2013) ——. Loven – Hvordan blir den til? (Oslo, Universitetsforlaget, 2013) H Bull, ‘European Law and Norwegian Legislation’ in PC Müller-Graff and E Selvig (eds), The Approach to European Law in Germany and Norway (Berlin, Berliner WissenscaftsVerlag, 2004) 43–56 A Bårdsen, ‘The Norwegian Supreme Court and the Internationalisation of Law’, seminar at the Norwegian Supreme Court in Oslo, 2014, https://www.domstol.no/globalassets/ upload/hret/artikler-og-foredrag/nsc-and-the-internationalisation-of-law.pdf Lovteknikk og lovforberedelse – Veiledning om lov- og forskriftsarbeid (Administrative Instruction on the Quality of Legislation), https://www.regjeringen.no/globalassets/ upload/kilde/jd/bro/2000/0003/ddd/pdfv/108138-lovteknikkboka.pdf (in Norwegian) D Michalsen, ‘Finnes det en norsk lovgivningstradisjon’ in A Syse, HC Bugge, H Indreberg and A Tverberg (eds), Lov, Liv og Lære – Festskrift til Inge Lorange Backer (Oslo, Universitetsforlaget, 2016) 341–51 JCF Nordrum, Bedre regulering? Årsak-virkningsanalyser i norsk reguleringsprosess med eksempler fra miljøregulering av næringsvirksomhet (Oslo, Universitetet i Oslo, 2017) A Tverberg, ‘The Use of Preparatory Works as a Source of Law in the Norwegian Legal System’ (2016) Journal of Legislative Evaluation, Korea Legislation Research Institute 205 ——. ‘The Use of Sunset and Evaluation Clauses in the Norwegian Legal System’ (Seoul, Korea Legislation Research Institute, 2017)

368

23 Legislation in Poland JACEK K SOKOLOWSKI

Context The Polish transition from communism to democracy took longer than in other countries of the region and lasted until the first free election in 1991. One of its long-lasting effects was a profound political cleavage between the supporters of radical de-communisation and those accepting (to a various degree) the legitimation of the previous regime. This cleavage led to the weak legitimation of the Constitution of 1997 (adopted following a referendum with only a 43 per cent turnout) and undermined the institutional construction of the state, ie, the division of legislative prerogatives. A particular feature of the Polish law-making model is thus its ‘decentralisation’, both with regard to initiating and to terminating the legislative process: the power to successfully launch a legislative proposal is spread among competing institutions, and various competing institutions have the power to block it. These competences do not integrate into a coherent system.

23.1.  Legislative Players: Hierarchy of Provisions Poland is a parliamentary democracy with a bicameral parliament (consisting of the Sejm and the Senat) that is solely responsible for creating the law in a narrow sense. The law, understood as a set of general and abstract norms, can be passed only in the form of a parliamentary bill (legal act, ustawa) that is accepted by both chambers. The formally upper chamber, the Senat can veto or amend the bill adopted by the Sejm, but its veto can be overridden (or it amendments rejected) by the Sejm by an absolute majority (50 per cent of the votes).1 Since the four-year terms of both chambers begin at the same time (elections are held jointly), they are always controlled by the same political party (or a coalition) and therefore Senat interventions in the law-making process are rare. Apart from legal acts (ustawa), Parliament can pass resolutions (uchwała) which are not a source of generally applicable law, but can contain provisions binding the Sejm

1 Of the votes cast; the Constitution sets quorum for this voting at 50 per cent of the total number of Members of Parliament.

370  Jacek K Sokolowski internally (as is the case of a parliamentary by-law (Regulamin Sejmu), which was adopted in the form of a uchwała. Other sources of law named in the Constitution are (apart from the Constitution itself) ratified international agreements and ministerial orders. The latter can be issued by ministers only on the grounds of explicit empowerment in a parliamentary bill and can regulate the areas named in the empowerment, but only in an executive manner, ie, a ministerial order cannot create rights or duties for an individual. Legislation in the narrow sense (ustawa) can be initiated by the government, by 15 Members of Parliament (or a parliamentary committee), by the Senat, by the president or by a group of no less than 100,000 citizens. The proposals submitted by the government constitute a majority of all proposals and they have the highest success rate of all bills.2 The president, whose direct election does not coincide with the parliamentary election and whose five-year term is longer than that of the Sejm and the Senat, can not only initiate a bill, but also has at his disposal a strong legislative veto. In order to reject it, a three-fifths majority in the Sejm is required. Since 1995, presidents had vetoed bills 62 times, of which only 10 had been overridden by the Parliament. Instead of vetoing the bill directly, the president can demand its review by the Constitutional Court (Trybunał Konstytucyjny), which can declare the bill unconstitutional in part or as a whole – or can confirm its constitutionality. Once it does so, the president cannot veto this bill subsequently and it becomes a binding law after its publication. The major players in the law-making process are thus the Parliament, the government, the president and the Constitutional Court. In order to understand the relations between them, an examination of the Polish political system is necessary, especially with regard to the earlier dependency of its major institutions.

23.2.  The Long Shadow of the Past: The Legacy of the Post-communist Transformation 23.2.1.  The President The shape of presidential powers in Poland is a path-dependent result of the postcommunist transformation. The compromise agreed between the ‘Solidarity’ movement (Solidarność) and the Communist Party in 1989 foresaw a gradual democratisation of the country: initially, the Parliament was to be elected, in which only 35 per cent of seats were supposed to become subject to a free electoral contest. This was giving Solidarność the possibility to become a legal parliamentary opposition, but the formation of the government was supposed to remain the sole responsibility of the Communist Party (which anticipated the scenario of co-opting selected ‘Solidarity’-representatives as ministers in order to

2 Jacek Sokołowski and Piotr Poznański, Wybrane aspekty funkcjonowania Sejmu w latach 1997–2007 (Krakow, Wydawnictwo KTE, 2008); for the 2007–11 term, see Olga Kazalska, Jędrzej Maśnicki and Marta Żuralska, Analiza działalności ustawodawczej Sejmu VII kadencji (Warsaw, Koło Nauk. Analizy Prawa ‘Ratio Legis’ UW, 2012).

Legislation in Poland  371 gain legitimacy).3 The President, introduced into the Constitution after the 1989 Round Table agreement and elected by the Sejm and the Senat in a joint vote, was supposed to be a safeguard, with the primary function of controlling the Parliament, not so much in the first term (1989–93, during which a 65 per cent majority for the Communist Party and its satellites seemed assured by the electoral rules), but, in particular, after the 1993 election, which were supposed to be completely free, thus giving Solidarność a chance to gain a majority and form a government (originally the presidential term was to last six years, until 1995). The informal agreement between both sides of the Round Table negotiations was that the president would be the leader of the Polish United Workers Party (ie, the Communist Party), General Jaruzelski, who from June 1989 onwards was supposed to transform himself from a military dictator into an impartial ‘guardian of the constitution’ (as the new Article 32 put it). A major feature of the newly created presidency was its domination over the Parliament, which was clearly visible in vague dispositions with regard to the right to dissolve it, combined with control over the military. In the event of of crisis, the ‘guardian of the constitution’ could attempt to resume his previous role.4 This was the origin of the presidential legislative veto: an instrument capable of stopping any public policy in the event that it should turn against the members of the Communist Party once it ceased to rule, or in case the Parliament would become incontrollable even in spite of the prescribed 65 per cent Communist majority. This indeed happened when the semi-free elections in 1989 exposed the dramatic lack of support for the ruling Communists and their satellites, the Polish Farmers’ Party and the Democratic Movement. In view of these events, both parties refused further obedience to the Polish United Workers Party, which made it possible to form a government under the premiership of Tadeusz Mazowiecki, a leading Solidarność politician (although the military and security remained under the control of Communist generals until July 1990). Thus, the original idea of the Round Table was abandoned: the Communists lost power in 1989 and had to concentrate on minimalising further losses, especially with regard to the risk of being excluded from the new political system which was beginning to take shape. Jaruzelski, elected as president by a majority of one vote only, was unable to stop the process and, instead of using his powerful prerogatives, decided to step down. This opened up a new chapter of the Polish transformation. The popular presidential vote, introduced after Jaruzelski’s resignation (along with a shortening of the presidential term to five years) was supposed to serve as a benchmark of electoral support for political parties emerging from various branches of the quickly disintegrating Solidarność movement. Lech Wałęsa won this contest in 1990 and tried to establish a semi-presidential system in which he could control the formation of the government. His initial successes were brought to a halt in 1991 when the Round Table Parliament was succeeded by a freely elected one. Leaders of political parties, irrespective of their provenance, had a joint interest in blocking Wałęsa’s ambitions. The conflict over presidential prerogatives turned the period 1991–93 into an almost permanent governmental crisis and eventually led to the Parliament’s dissolution. The 1993 parliamentary election was won by the post-communists (re-organised under the social-democratic label), which made the cohabitation even more bitter. All constitutional



3 Antoni 4 ibid.

Dudek, Historia polityczna Polski 1989–2015 (Krakow, Znak, 2016).

372  Jacek K Sokolowski proposals drafted in the Parliament at that time foresaw a diminution of the president’s role and a shift towards a cabinet system, but things had changed when Wałęsa lost his seat in 1995 to the post-communist leader, Aleksander Kwaśniewski. In 1997, a new constitution was adopted, in which the peculiar position of the president as a ‘parliament-controller without government formation- prerogatives’ was upheld, though restricted mainly to the almost-absolute veto.5 This solution clearly anticipated that the 1997 election would be won by an alliance of post-Solidarność parties, the agenda of which included the (particularly feared by the ex-aparatchiks) vetting procedures with regard to former collaborators of the totalitarian secret police, combined with disclosure of its archives (lustration). Indeed, Kwasniewski vetoed the lustration bill, as well as other legislative proposals that endangered the political and economic existence of the post-Communist Party (notably, the reprivatisation bill). His successors used the veto in a similar way: mostly against the interests of their political opponents and less often – but also regularly – against the party they originated from (if the latter interfered with their own interests). These origins of the Polish presidency make it possible to explain why it differs from what are commonly labelled ‘presidential’ or ‘semi-presidential’ models in the Western democratic tradition. Presidential powers in Poland are not rooted in the traditional separation of powers model (in which, as in the US or, to a certain extent, in France, the executive branch is separated from the legislative branch through its independent legitimation). The Polish president has no important prerogatives with regard to the formation of a government (save in the case of a highly fragmented parliament, which has not happened since the 1990s). His role is in fact to ‘supervise’ and block the parliamentary policy-making. This system has very little rationale, though it could be regarded as an important element of consensualism in a society with deep political cleavages, as no party is capable of implementing a radical policy if the supporters of its major rival are strong enough to elect a president. However, this comes at a high cost: with the president and the Constitutional Court performing a perpetual control over parliamentary bills, policy-making becomes very difficult for any government, while at the same time the president has no instruments to initiate any policy, since his powers are almost exclusively negative.

23.2.2.  The Constitutional Court The origins of the Polish Constitutional Court also differ from the European process of the constitutionalisation of politics understood as a reaction to the prior parliamentary supremacy and judicial positivism.6 The Polish Constitutional Court was introduced in 1986 as an element of Jaruzelski’s regime ‘normalisation’ policy, triggered by Mikhail Gorbachev’s perestroika. Originally intended to be an ornament to the autocratic regime, it became part of the ‘dictatorship’s deregulation’ process in late 1980s, gaining limited independence over

5 According to art 122.3 of the Constitution, the president can demand that the Sejm passes the bill again, this time with a three-fifths majority with a mandatory quorum of 50 per cent of all deputies. Such a majority is extremely difficult to achieve; cf section 23.1 above. 6 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000).

Legislation in Poland  373 minor matters and thus accelerated the disintegration of political control exercised by the Communist Party.7 During the Round Table negotiations, Solidarność aimed at strengthening the judiciary in general, regarding its independence from the Communist Party as an important factor in the 1989–93 transitionary period (during which the Polish United Workers Party was still supposed to rule).8 The April Amendment, which introduced the presidency, broadened the scope of the Constitutional Court’s prerogatives, entitling it to review bills ex ante and to lay down universally binding interpretations of bills. In the following chaotic political competition between post-Solidarność actors, the Court became gradually both the arbiter and the rule-maker.9 The Constitution of 1997 formally sealed the position of the Constitutional Court, declaring its verdicts final (until 1997, these could have been overridden by a two-thirds majority in parliament). The post-Communist Party agreed to accept this strengthened position of the Court, regarding (contrary to its own previous stand) the independence of judiciary as beneficial for itself: most of the judges were entangled in close relations with the Communist Party before 1989 and therefore were very reluctant to accept legislative initiatives which might result in imposing liability for wrongdoings committed prior to 1989. In general, the judges opposed the idea of introducing policy similar to the German Vergangenheitsbewältigung model. A prediction that an independent judiciary would help to stop or slow down policies directed at coming to terms with the totalitarian past indeed came true with regard to regular jurisdiction. Criminal prosecution of communist crimes was carried out only on a small scale. However, lustration (which came into force after Kwasniewski’s veto was overridden) was not stopped by the Constitutional Court. Moreover, after the post-communists returned to power in 2001, their attempts to amend the lustration bill in a way that would paralyse vetting procedures were brought to a halt by the Court. In contrast to the regular judiciary, judges of the Constitutional Court were appointed through a political procedure, namely a simple majority of votes in the Sejm, but for a term lasting more than two parliamentary terms (nine years), and they developed a common understanding of their institutional role. This in turn resulted in independence not only from their political patrons but also – to a certain degree – from the professional and academic lawyer environment (from which most of the Court’s judges originated).10 In this way, the Constitutional Court became an independent semi-political actor in the law-making process. Interestingly, the way in which it exercised its powers suggests that it was instead seeking the way to create a balance between other – more openly political – players rather than attempting to dominate them. Nonetheless, the Court was political in its actions, though its motivations were different from these of political parties: the major agenda pursued by the judges was to maintain the Court’s role of impartial arbiter. However, the political impact of the Court was much stronger in Poland than in other countries, due to a lack of institutional restraints, which could prevent political parties from

7 Robert Alberski, Trybunał Konstytucyjny w polskich systemach politycznych (Wrocław, Wydawnictwo UW, 2010); Antoni Dudek, Reglamentowana rewolucja (Krakow, Wydawnictwo Znak Horyzont, 2014). 8 Dudek (n 3). 9 Alberski (n 7). 10 ibid.

374  Jacek K Sokolowski misusing the instrument of constitutional review. The scope of actors entitled to launch the motion is broad, and the low limit for the parliamentary motion (50 deputies) has led to a situation in which launching the review became a standard measure against a bill that was disliked by the opposition. This made the ‘impartial manoeuvring’ between political actors more difficult, undermined the Court’s authority and led to a growing conviction among political leaders that the Court must be subordinated (which eventually happened after 2015).

23.2.3.  Summary: Institutional Ineffectiveness as a Result of Path-Dependency Institutional advantages helped ensure the dominance of the post-communist party for the decade following its first electoral victory. However, it could not stop the socio-economic transformation fuelled by the economic growth and the gradual opening up towards the West; in fact, the pro-investment policies of post-communist governments11 accelerated these processes. Ironically, as a consequence, they began losing their electoral base: as the older generation of beneficiaries of the Polish semi-oligarchical transformation model began to shrink for natural reasons, younger voters accepted the free market and began to regard post-communist rule as an obstacle in the way of creating an efficient state, able to organise fair competition and serve citizens. This especially applied to the growing middle class, which at the turn of the century chose liberal post-Solidarność party, the Civic Platform (Platforma Obywatelska or PO) as a representative of their aspirations. Those for whom the economic transformation brought more deficiencies than advantages turned to Law and Justice (Prawo i Sprawiedliwość or PiS), a successor of various conservative groupings which emerged from Solidarność in the 1990s. Its agenda stressed the need for social protection, combined with a call to ‘rebuild the state’, transforming its institutions and strengthening the executive. From 2005 onwards, the Polish political scene has been defined by the competition between PiS and PO. In this way, political institutions, whose shape was a result of the major conflict of the transformation era (ie, the conflict over an evaluation of the totalitarian past),12 became elements of the political system defined by different political cleavages. One of the results is the inefficiency of these inherited, transformational institutions with regard to the modernisation efforts undertaken after 2008: the relationship between various power branches in Poland could be described more as a system of checkmate than a system of checks and balances. Achieving a legislative aim requires not only having a parliamentary majority but also the approval of the president and that of the Constitutional Court, when each of these actors has contradictory political aims. This makes every major political initiative more risky than in a system with fewer veto players. This inefficiency contributed heavily to the inertia of the public policy during two terms of PO domination (2008–15). At the same time, since the process of finalising the legislation is difficult and unpredictable,

11 This refers to governments formed by the Sojusz Lewicy Demokratycznej, the political and legal successor of the Communist Party (PZPR). 12 Mirosława Grabowska, Podział postkomunistyczny. Społeczne podstawy polityki w Polsce po 1989 roku (Warsaw, Wydawnictwo Naukowe Scholar, 2004).

Legislation in Poland  375 the process of initiating it is decentralised and has very few instruments allowing the ruling party to keep control over it. This is both due to institutional reasons and to the patterns of political behaviour.

23.3.  The Institutional Framework of the Law-Making Process Article 188 of the Constitution authorises five categories of actors to introduce a legislative bill: • Members of the Sejm (a group of at least 15 deputies, not necessarily from the same faction, but a minimal number of deputies to form a faction is 15; a parliamentary committee is entitled to introduce a bill on the grounds of this provision as well). • The Senat (acting as an organ meaning a majority voting of entire chamber is necessary to formally introduce a bill proposal to the Sejm; within the chamber, 10 senators or a Senat committee are entitled to initiate the procedure). • The President. • The Council of Ministers. • 100,000 citizens. In the case of a budget bill, legislative initiative can be executed exclusively by the Council of Ministers; in the case of a proposal to amend the Constitution, only the Council of Ministers, the Senat, the President or a group of no less than 92 Sejm deputies are empowered to present a bill. Legislative procedure is governed directly by the provisions of the Constitution and – in a much more detailed way – by the parliaments by-law (Regulamin Sejmu). These regulations vest a substantial power over the proceedings in the Speaker of the House (Marszałek Sejmu), which consist of: • initial control of the bill with regard to its formal aspects and to the conformity with the existent law, including EU law. The Speaker is empowered to return the bill to the ­initiator in case of its formal defects; • determining the moment when the first reading takes place: it is the Speaker’s exclusive prerogative and is not limited by any provision (the practice of delaying the first reading is commonly known as ‘Speakers Freeze’);13 • controlling the Sejm agenda: the Speaker approves the agenda of every parliamentary session, deciding which bills would be presented; • controlling the amount of amendments: the Speaker can prevent amendments which had been not presented in a written form to the appropriate committee from being subject to any proceeding. 13 It is possible to delay the first reading indefinitely in this way, although such cases are extremely rare. More often, the Speaker uses his agenda-control competences to set the first reading for a politically convenient moment.

376  Jacek K Sokolowski The position of the Speaker is thus highly politicised and he is always appointed by the biggest parliamentary faction. This means that the Speaker is a representative of the ruling party and is not neutral towards other deputies. Until 2005, some features of neutrality seemed to be regarded as a necessary element of the Speaker’s behaviour, but due to growing polarisation in the PiS-PO era, the Speaker’s role became increasingly partisan.14 Once the bill has been submitted for the first reading, the parliamentary procedure begins, consisting formally of three readings. The first reading comprises the presentation of the project by the introducer of the bill and a general debate; it can be either a plenary session or can take place at the appropriate committee session. A bill related to budgetary matters, constitutional amendments, electoral law or the functioning of public authorities must be read at a plenary session; in other cases, plenary reading depends on the Speaker’s decision. Already at this stage, the bill can be rejected by a majority vote (a motion to reject can be submitted by at least 15 deputies). After the first reading, the bill proceeds to the lead committee. The committee drafts a report (recommendation) for the bill as a whole, as well as for all the amendments (amendments should be introduced in writing to the committee). Standing committees prevail in the Sejm and more complex bills require an opinion of appropriate committees before the lead committee agrees on a recommendation. A recommendation takes the form of a motion to pass or reject the bill. If the lead committee approves some of the amendments, they are integrated into the newly drafted text of the bill. The amendments rejected by the lead committee are presented in the report with the recommendation to reject them (each of them must be voted on by the Sejm at the plenary session if their introducer so requests). The second reading (always at a plenary session) begins with a presentation of the report of the lead committee. A possibility to introduce new amendments (not presented in writing to the lead committee) during the second reading was originally intended to be exceptional, but became common practice, restricted only by a requirement that they must be supported by a minimum of 15 deputies. If new motions to amend the bill are presented during the second reading, the bill is diverted to the lead committee for an additional recommendation with regard to new amendments. After the presentation of the second report of the lead committee, the third reading follows, during which deputies vote on: • the rejection motion (if brought); • amendments rejected by the lead committee; • passing the bill. The bill passed by the Sejm must accepted by the Senat within 30 days. Refraining from expressing its position equals acceptance. The Senat’s veto or amendments can be overridden by an absolute majority in the Sejm.15 Amendments adding provisions unrelated to the scope of the regulation passed by the Sejm are unconstitutional, but – theoretically – the

14 Sokołowski and Poznański (n 2). 15 A total of 50 per cent of the votes of the deputies presents, with a quorum of 50 per cent of the total number of deputies.

Legislation in Poland  377 Senat is empowered to alter the solutions adopted in the bill even to the extent that makes them contrary to the original solutions. The president has 21 days after the Senat’s approval to sign the bill, to veto it or to demand its review by the Constitutional Court.

23.4.  Law-Making as a Political Process Four aspects of the Polish political system have a significant effect on the law-making process: • electoral behaviour generating a low level of political accountability; • intra-party conflict dominating the structure and functioning of governmental institutions; • inter-party conflict, dominated by ‘legitimisation competition’ instead of ‘public policy competition’; • institutional instability vested in the president’s position towards legislative and political parties. An important element of political competition in Poland is an irregular pattern of voting behaviour. Voter turnout stability in Poland is around 72 per cent,16 which means that 28 per cent of voters in each parliamentary election did not participate in the previous one. At the same time, these new incoming voters constitute a winning margin, as their number (approximately four million) exceeds what is sufficient to grant victory to the party which manages to attract their vote.17 The parliamentary campaign in Poland is thus usually directed at attracting the majority of voters who did not participate in the previous election. The result of this is a very limited political accountability of political parties: this decisive group of voters is not particularly interested in holding the ruling party accountable in relation to the enactment of its electoral programme; they are much more responsive to new promises. These, in turn, are being made with an awareness that their fulfilment will not be crucial for re-election (as after four years, new voters will appear). Promises are therefore rarely realised, which deprives the law-making process of its initial foundation. Since the electoral process does not contribute to agenda creation, the latter appears only after the government is formed and in reaction to different factors. The government formation reflects the power relationship between coalition partners and the relations within the major party (Civic Platform (PO) until 2015 and Law and 16 Mikołaj Cześnik, Partycypacja wyborcza w Polsce. Perspektywa porównawcza (Warsaw, Wydawnictwo Scholar, 2007); Radosław Markowski and Agnieszka Kwiatkowska, ‘Chwiejność wyborcza Polaków’ in Radosław Markowski (ed), Demokratyczny Audyt Polski 2: Demokracja wyborcza w Polsce lat 2014–2015 (Warsaw, Biuro Rzecznika Praw Obywatelskich, 2017). 17 It should be noted that voters’ capriciousness means there is not a definable group of ‘absolute no-voters’ (ie, those who never participate in elections). In fact, ‘absolute no-voters’ are scarce, but these 28 per cent of capricious voters are in fact ‘occasional voters’ who participate in every second (or every third) election. This explains why electoral campaigns until now were directed mostly at these who were hesitating whether to participate or those who did not participate in the last election.

378  Jacek K Sokolowski Order (PiS) after 2015). Parties in Poland have not achieved a level of institutionalisation which would make them dependent mainly on their relations with voters (partly due to the capriciousness of the latter). They remain to a great extent organised as clientelist groups, within which major clients are party members. The latter struggle for benefits, consisting mainly of attractive positions in public administration, in publicly administered enterprises and, partly, in access to public contracts offered to private entrepreneurs. Factions within a party build up around leaders who are the most skilled and efficient in distributing these benefits among party members. A formation of the government thus becomes for a party leader an instrument to solve conflicts between major factions in his party and to keep them in balance – without endangering his own position. Different policy areas are entrusted to the ministers not because of their competence or experience, but as a result of their position towards party factions and towards the leader (a ‘difficult’ ministry is often used as a means to weaken its holder’s ­position, ‘profitable’ ministries are appointed to those most loyal etc). The result is a ‘government without a clue’: the Council of Ministers has no clear ­legislative agenda (the electoral programme is not regarded as such) and the party leader is interested in supressing intra-party conflicts rather than in creating public policy. Ministers are usually short-lived, especially those responsible for vulnerable areas,18 and they function to a great extent independently of each other, setting their own public policy goals in accordance with their own narrow political interests (‘feudalisation’). These tendencies are reflected (and strengthened) in the weak and decentralised ­structure of institutions responsible for drafting and coordination within the government (see below). Any attempt to impose a centralised agenda is difficult and politically costly for the prime minister, even if he is also the party leader. After 2010, polarisation within Polish political system grew rapidly. The legislative process, which earlier had shown many consensual/transactional traits, became more partisan,19 with a much higher tendency to reject any proposals made by a political opponent. Political competition in Poland does not rely on offering legislative solutions to various electoral groups, but to a much greater extent on generating negative emotions towards an opponent who is regarded as not entitled to participate in the political process at all. This contributes to a reduction in the power of the opposition to exert any influence over the government. Debate of the bill is often a formality and even if it makes valid points, it will be ignored. Applying a presidential veto to the bill is a delicate operation in which the president has to take into account his personal popularity (especially in his first term when he is hoping for re-election), the interests of his party (which is a major sponsor of his electoral campaign) and the potential political cost of applying this measure. The president’s political interests tend to coincide with those of his party when the latter is in opposition and the bill is unpopular. Presidents cohabiting with their party in government tend to veto bills

18 The Ministry of Justice can serve as a good example of this, with seven ministers between 2007 and 2015. 19 Jacek Sokołowski, ‘Od sojuszu do skrajnej wrogości. Ewolucja zachowań parlamentarnych Platformy ­Obywatelskiej i Prawa i Sprawiedliwości w latach 2001–2013’ (2015) 15 Annales Universitatis Paedagogicae ­Cracoviensis. Studia Politologica XV 194.

Legislation in Poland  379 much less often, mainly to show their distance from the party when the bill is controversial (and they expect some gain in terms of popularity among centrist voters)20 or to maintain their influence in the areas traditionally (though not necessarily formally) regarded as ­presidential prerogatives.21

23.5.  Institutional Aspects of Governmental Policy-Making and Governmental Law-Making 23.5.1.  Legislative Planning and RIA Ex Ante The phenomena affecting the creation of agendas are reflected in the rules governing ­legislative planning. Until 2011, the Council of Ministers was obliged to prepare a legislative working plan every six months. The plan was drafted in a decentralised manner, as a joint list of proposals submitted by individual ministers, without any formal prerogative of the Prime Minister (or his Chancellery) to reject or block a ministerial draft. The existing requirement to include a rudimentary regulatory impact assessment (RIA) in the proposal was effectively not enforced. In 2011, the acts governing legislative planning were amended. The ‘legislative plan’ turned into the ‘legislative works list’ (Wykaz prac legislacyjnych) and was formally discarded as a planning tool. Up to now, Wykaz remains a dynamic list of bill proposals that have already been submitted and is updated each time a new bill is proposed. This means that its content changes over in time as it simply reflects the current scope of the drafts the ministers are working on, but does not create any future- or goal-oriented hierarchy and does not set any priorities. In 2010, Donald Tusk managed to enforce the requirement of the Prime Minister’s acceptance of any ministerial bill proposed outside the legislative plan. In order to achieve this acceptance, a positive recommendation of the (concurrently created) cabinet’s legislation evaluation unit (the Department for Impact Assessment) became mandatory. Basic procedures were introduced for reviewing the proposals, especially performing ex ante RIAs, before the proposal can be put on the legislative works list. In 2013, a governmental programme ‘Better Regulations 2015’ was adopted, with the proclaimed aim to achieve Western standards in the governmental drafting process by 2015. In 2014, new guidelines for RIA were adopted by the government (Wytyczne 2015),22 the contents of which were mostly evaluated very positively by the relevant experts.23 However, the model of the governmental legislative process created before 2015 was

20 An example of this was the veto of President Andrzej Duda in July 2017, which partly blocked the controversial judiciary reform of the PiS government. 21 eg, the veto of President Bronisław Komorowski of August 2011 on the bill re-organising two military ­academies (the bill was drafted by the Ministry of Defence without prior consultation with the president). 22 ‘Wytyczne do przeprowadzania oceny wpływu oraz konsultacji publicznych w ramach rządowego procesu legislacyjnego’, an internal document of the Government Legislation Centre (RCL), available at: www1.rcl. gov.pl/?q=book/wprowadzenie. 23 Jarosław Górniak (ed), Ocena wpływu oparta na dowodach. Model dla Polski (Warsaw, Akademia Leona Koźmińskiego, 2015).

380  Jacek K Sokolowski effectively abandoned in 2016. The requirements regarding RIA admittedly remained in force, but the determination to fully implement the model introduced in Wytyczne 2015 waned. Moreover, the negative practice of introducing ministerial drafts to the Parliament via deputies from the governing party (which had existed previously but had not been widespread) increased rapidly after the PiS government was following the 2015 elections.24 A recent report from the Supreme Chamber of Control shows that in four key ministries (finance, social and labour, agriculture and development) in 2015–16, only 30 per cent of the projects that went ahead were drafted in accordance with the RIA guidelines.25

23.5.2.  Drafting Bills Most of the formal rules regarding governmental drafting are incorporated into the by-laws of the Council of Ministers (Regulamin Pracy Rady Ministrów, Regulamin RM). Technical guidelines for drafting legislation are codified in the order of the Prime Minister (Zasady techniki prawodawczej). Prior to 2011, the bill was drafted in the appropriate ministry and it was proposed in the form of a legal text. One of the changes to the legislative process introduced by the second Tusk government was to replace the processing of drafts with the processing of bill objectives (an outline of the proposed regulation) at a governmental level. A governmental bill should therefore be principally drafted as an outline of a bill. Drafting reform, which was introduced in 2011 and is described above, was abandoned in 2016 by the government formed by PiS after the 2015 election. All the rules providing that bills must be drafted exclusively in the form of an outline remained in force, but as a distinct procedure, which was mandatory only as a result of a direct demand of the prime minister. In this way, drafting an outline remained possible, but became an exception and after 2016 was effectively not practised. The current drafting model is based (again) on the preparation of a legal text by the responsible ministry. This text is circulated for consultation with both the government and the public. This also reduced the role of the government legislation centre, which lost its status as a central institution responsible for the actual drafting of the legislative text. Instead, it became a consultation body, which can only suggest amendments to the draft. Once the proposal is drafted, it enters the consultation stage. The latter includes public consultation, coordination of positions within the cabinet and enquiries among public bodies affected by the proposal. During this stage, the outline must be presented to all cabinet members, the chief of the Chancellery of the Prime Minister and to the Government Legislation Centre (Rządowe Centrum Legislacyjne or RCL) and it has to be made publicly available through the governmental legislation online depository (Rządowy Proces

24 Marta Dzieciuch, ‘Ocena polskiego procesu legislacyjnego na przykładzie ostatnich zmian w prawie rynków finansowych’ (2018) 6(7) Internetowy Kwartalnik Antymonopolowy i Regulacyjny 8. 25 Supreme Chamber of Control, Report on RIA 2017 (NIK o dokonywaniu oceny wpływu w ramach rządowego procesu legislacyjnego, 2017), available at: https://www.nik.gov.pl/aktualnosci/nik-o-dokonywaniu-oceny-wplywuw-nbsp-ramach-rzadowego-procesu-legislacyjnego.html.

Legislation in Poland  381 Legislacyjny or RPL-Service). All documents related to the proposal and produced during the consultation-coordination-enquiry stage are also available from the depository.26

23.5.3.  The Consultation Stage The Polish Council of Ministers does not debate legislative drafts during plenary sessions. Drafts are adopted by consensus, which requires a painstaking intra-governmental ­consultation stage, during which each minister has the option of taking a stand on the draft. The legally fixed timeframe for delivering comments and remarks is 21 days, but this is often disregarded. Concurrently with the intra-governmental consultation stage, public consultation is performed; again, this is not mandatory, but depends on the decision of the ministry responsible for the draft. Due to the increasing pressure on subsequent governments, the number of proposals submitted to public consultation is growing steadily. Any legal subject can take stand on the draft published in the RPL-Service and the ministry responsible for the draft can invite relevant representatives of the private and third sectors to submit their comments and remarks. Once the consultation stage is closed, the draft is sent to the Permanent Ministerial Committee, consisting of one minister (presiding), vice-ministers from each ministry and two representatives of the prime minister. The Committee’s task is to evaluate the comments and remarks presented during the consultation stage and not accepted (or rejected) by the ministry responsible for the draft. The draft submitted to the Committee must include ex ante RIA and the drafts of decisive executive (ministerial) orders which are to be issued after the bill is passed. After completing this phase, the draft is passed to the Council of Ministers for formal acceptance.

23.5.4.  Legislative Staff and Their Training In theory, Polish law-making follows a public legislator model.27 Proposals are drafted by ministerial officials who can be either civil servants or contractor employees. Legislators with civil servant status are either ‘legislative specialists’ or ‘senior legislative specialists’; these are exclusively law graduates who undertook their legal training at a publicly ­organised legislative trainee ship or who have two to four years of drafting experience. There are no particular requirements for the contracted employees responsible for drafting in the ministries, though usually these are university graduates. They form the majority of public legislators, as the number of civil servants in the government and central agencies does not exceed 25 per cent.28 Only legislators employed by the Chancellery of 26 See https://legislacja.rcl.gov.pl. 27 cf Wiesław Staśkiewicz, ‘Status and Professional Roles of a Legislative Drafter in Poland’ in Felix Uhlmann and Stefan Hofler (eds), Professional Legislative Drafters: Status, Roles, Education (Dike, 2016) for a comprehensive review of the status of legislators in Poland. 28 Batory Foundation Report, Dla państwa i obywateli. Diagnoza i propozycje reformy służby cywilnej, Warsaw, 2019, http://www.batory.org.pl/upload/files/Programy%20operacyjne/Forum%20Idei/Dla%20panstwa%20i%20 obywateli_Makowski.pdf.

382  Jacek K Sokolowski the Prime Minister or by the Government Legislation Centre are required to be law graduates (in the latter case, they are also required to fulfil conditions for the civil servant drafter even if they do not belong to the civil service). Public legislative traineeship is incorporated into the public lawyers’ traineeship system (which is similar to the German Referendariat model) and is run by the Government Legislation Centre. Unlike other legal traineeships, recruitment for the legislative traineeship is not open; candidates can only apply (subject to annual limits) on the grounds of a formal recommendation of their superior as they must be already employed in public service. It takes one year to complete the traineeship.

23.6. Conclusion Law-making in Poland is decentralised on two levels: first, a legislative initiative can be launched by a relatively small group of deputies, a president or a government, and, second, a president can annihilate the bill by vetoing it. The Constitutional Court was used both by the president and by the opposition as a regular feature of political competition, since there was no limit on launching a constitutional review. Therefore, in order to effectively control the legislative agenda, it is necessary to impose discipline over a parliamentary majority, exercise influence on the president and control the government as a body. This system of dispersed control over the content of legislation is an unintended side-effect of the Polish transformation which took place as a negotiated transformation allowing the post-­communist party to create institutional safeguards against radical changes of direction in public policy. No party leader before 2007 was capable of controlling all these elements. However, the evolution of the political system towards a two-party model resulted in a serious increase in the degree to which the party leader could influence the Parliament and the President. Blocking the public policy introduced by the governing party became more difficult. Paradoxically, neither of the two leaders who governed after 2007 (Tusk and Kaczynski) managed to centralise law-making within the government, ie, to impose coherent rules allowing the prime minister to control the governmental drafting process. The highly ineffective structure of the Council of Ministers reflects the low degree of institutionalisation of major parties, which leads to the independence of ministers in terms of their legislative policy.

Further Reading R Alberski, Trybunał Konstytucyjny w polskich systemach politycznych (Wrocław, Wydawnictwo UW, 2010) M Berek, Rada Ministrów jako organ inicjujący postępowanie ustawodawcze (Warsaw, CH Beck, 2017) A Dudek, Historia polityczna Polski 1989–2015 (Krakow, Znak, 2016) KH Goetz and R Zubek, ‘Government, Parliament and Law-Making in Poland’ (2007) 13(4) Journal of Legislative Studies 517–38

Legislation in Poland  383 M Grabowska, Podział postkomunistyczny. Społeczne podstawy polityki w Polsce po 1989 roku (Warsaw, Wydawnictwo Naukowe Scholar, 2004) J Sokołowski and P Poznański, Wybrane aspekty funkcjonowania Sejmu w latach 1997–2007 (Krakow, Wydawnictwo KTE, 2008) W Staśkiewicz, ‘Status and Professional Roles of a Legislative Drafter in Poland’ in F Uhlmann and S Hofler (eds), Professional Legislative Drafters: Status, Roles, Education (Dike, 2016) 144. A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) A Wołek, Rząd do remontu, Raport Centrum Analiz Klubu (Krakow, Jagiellońskiego, 2015)

384

24 Legislation in Portugal JOÃO TIAGO DA SILVEIRA

Context In Portugal there are three entities with powers to legislate: Parliament, the government and the autonomous regions of the Azores and Madeira. Parliament is the main legislative body that addresses relevant matters which only it is authorised to legislate. However, laws enacted by Parliament and decree-laws enacted by the government have equal legal force and each law can repeal a prior one. Since 2002, drafting legislation in Portugal follow the pattern of the Legística handbook. The Legislar Melhor and SIMPLEGIS programmes were able to introduce innovative and cutting-edge regulatory policies in Portugal.

24.1.  The Portuguese Legal System The Portuguese legal system belongs to the Roman-German/civil law family. It has a written constitution which is the main legal source.1 Portugal is a state based on the following principles: (i) the rule of law; (ii) democracy; (iii) fundamental rights; (iv) equality; (v) proportionality; (vi) separation and inter-dependence of powers; (vii) political decentralisation with the recognition of the autonomous regions of the Azores and Madeira; and (viii) administrative decentralisation, where elected municipalities and parishes play a relevant role. The Portuguese system of government is semi-presidential. The President of the Republic (Presidente da República) is directly elected by the people, but does not have legislative or executive powers. However, the President does have relevant competences such as: (i) to promulgate bills and use the right of veto; (ii) to file claims before the Constitutional Court to dispute the constitutionality of bills; (iii) to dissolve Parliament; and (iv) to dismiss the government in special circumstances. The Portuguese Parliament (Assembleia da República) has a single chamber and is composed by 230 members directly elected by the people. Parliament has the relevant political and supervisory powers over the government. The main legislative powers belong to Parliament, although the government and the 1 Other countries have legal systems similar to the Portuguese legal system, such as Angola, Cabo Verde, Goa, Guiné-Bissau, the Special Administrative Region of Macau, Moçambique and São Tomé and Princípe. To a certain extent, the Brazilian legal system also shares roots and links with the Portuguese legal system.

386  João Tiago da Silveira autonomous regions of the Azores and Madeira may also legislate. Finally, the Prime Minister is appointed by the President, who takes into account general elections. Other members of the government are also designated by the President at the proposal of the Prime Minister. The government exercises legislative and executive powers, but cannot enact laws in matters reserved for Parliament.

24.2.  Laws and Regulations in Portugal There are three types of laws in Portugal: a law (Lei) approved by the Parliament; a decreelaw (decreto-lei) approved by the government; and regional legislative decrees (decreto legislative regional) approved by the parliaments of the autonomous regions of the Azores and Madeira.2 The word ‘laws’/‘leis’ may be used to refer to these three types of laws or only laws enacted by Parliament. In general, laws enacted by Parliament and decree-laws enacted by the government have the same legal force, and therefore laws can repeal decree-laws and decree-laws can repeal laws.3 Generally, the government legislates more than Parliament, but the latter approves the more relevant laws: in 2016, Parliament approved 47 laws and the government approved 98 decree-laws.4 The percentage of laws resulting from the transposition of European Union (EU) directives or from the execution of EU regulations is relevant: in 2016, around 10 per cent of the laws approved by Parliament and 16 per cent of the decree-laws approved by the government were aimed at transposing or executing EU directives and regulations.5 The Constitution is considered to be a specific law itself: a constitutional law/lei constitucional and the other laws are required to comply with the Constitution. If they do not, any court may decide not to apply a provision deemed unconstitutional. The Constitutional Court (Tribunal Constitucional) is the highest court authorised to decide on the compliance of legal provisions with the Constitution and may be called to decide under different circumstances. Laws are not the only instruments in the Portuguese legal system designed to set rules. Administrative regulations (regulamentos administrativos) also set rules, but they are limited to executing laws or setting provisions while performing administrative powers instead of political powers. Administrative regulations need to be authorised by law as well as to comply with it.

24.2.1.  The Portuguese Constitution The Portuguese Constitution of 1976 is at the top of the hierarchy of laws, and all laws and regulations of the Portuguese legal system must comply with it. 2 Article 112-1 of the Constitution. 3 ibid art 112-2. 4 Boletim 7, Observatório da Legislação Portuguesa, http://olp.cedis.fd.unl.pt/wp-content/uploads/2018/01/ Boletim_7.pdf. 5 ibid.

Legislation in Portugal  387 The Portuguese Constitution is a detailed text with 296 articles and has a full set of provisions on fundamental rights, as well as provisions on economic organisation, organisation of political power, powers of courts to guarantee the compliance with the Constitution and procedures for revision of the Constitution. Under the procedure set out in Articles 284–89 of the Constitution, amendments must be approved by two-thirds of the Members of Parliament; however, any of its members may present a proposal to review the Constitution.6 In principle, the Constitution cannot be amended within five years after its revision. Nevertheless, it can be reviewed at any time under special circumstances, if four-fifths of the Members of Parliament agree to start this procedure.

24.2.2.  Types of Laws 24.2.2.1. Laws In general, laws enacted by Parliament and decree-laws enacted by the government have the same legal status. Thus, a law can repeal a decree-law and a decree-law can repeal a law enacted by Parliament. However, in a relevant number of important matters, only Parliament may enact a law.7 Those matters are known as ‘competences reserved for Parliament’ (‘competências ­reservadas da Assembleia da República’). This is one of the reasons why the Parliament is considered the main legislative body in Portugal. Parliament is entitled to approve laws concerning almost all issues.8 There is only a very specific case where only the government can enact laws, which will be discussed below.9 The laws of Parliament may obviously revoke decree-laws approved by the government (Article 112-2 of the Portuguese Constitution). In terms of Article 164, Parliament is the only entity allowed to enact laws, eg, the legal framework of elections for Parliament and the President of the Republic (Article 164-a) of the Constitution), and the basic legal framework of the education system (Article  164-i) of the Constitution). The government and regional parliaments cannot approve bills on such matters. The cases listed in Article 164 of the Constitution are known as ‘exclusive ­competences of Parliament’ (‘reserva de competência absoluta da Assembleia da República’). Laws from Parliament and decree-laws from the government possess equal force, but in some cases, Parliament may authorise the government to legislate by means of a decree-law. This is carried out by means of an ‘authorisation law’ (‘Lei de Autorização’). In terms of Article 165, Parliament may approve laws or authorise the government to enact a decree-law by means of a law, eg, the establishment of new taxes (Article 165-1-i)

6 After 1976, seven revisions have been made in 1982, 1989, 1992, 1997, 2001, 2004 and 2005. Portugal is currently experiencing the longest period ever with no revision to the Constitution of 1976. 7 Articles 164 and 165 of the Constitution. 8 ibid art 161-c). 9 ibid art 198-2.

388  João Tiago da Silveira of the Constitution) and the basic legal framework of the social security system (Article 165-1-f) of the Constitution). Therefore, on such matters, Parliament may choose to legislate or to delegate such a task to the government. This case is known as ‘partially exclusive competences of Parliament’ (‘reserva de competência relativa da Assembleia da República’). The law approved by the Parliament that aimed to authorise the government to enact a decree-law in such matters is known as the Authorisation Law (Lei de Autorização). This authorises the government to enact a decree-law in matters listed in Article  165 of the Constitution and sets forth the objective, purpose, extent and duration of the authorisation. The decree-law to be approved is required to comply with such provisions and if it does not, courts (including the Constitutional Court) may consider it to be null and void. As we will see, this is not the only case where the government may enact decree-laws. In fact, decreelaws may be approved in all cases, provided they do not refer to the subjects listed under Articles 164 and 165 of the Constitution, although in this last case, a decree-law may be enacted on the basis of an Authorisation Law from Parliament. In general, the Parliament enacts an Authorisation Law on the basis of a proposal presented by the government. This proposal may be approved for several different reasons (when the party in government has a strong majority in the Parliament, highly technical issues, matters traditionally addressed by the government etc). Finally, Parliament may decide to consider an approved decree-law in order to verify whether it should be amended or revoked (Article 169 of the Constitution). If Parliament decides to revoke it, a Resolution (Resolução) is approved, and it does not need to be promulgated by the President of the Republic, as laws usually do.

24.2.2.2. Decree-Laws As mentioned above, the government is entitled to approve laws by means of decreelaws. There is a wide range of undetermined subjects where the government may approve decree-laws. It is not possible to approve decree-laws in the matters listed in Article 164 of the Constitution because here only Parliament can enact laws. In principle, it is also not possible for the government to legislate on matters in Article 165 of the Constitution unless Parliament approves an Authorisation Law. However, in all other subjects not listed in these articles, the government may enact decree-laws (Article  198-1-a) of the Constitution). Moreover, the government is the only entity authorised to enact laws on its internal governance (Article 198-2 of the Constitution). It is generally accepted that this is the only subject where the Constitution establishes an exclusive competence of the government to legislate.10

10 However, there are scholars who consider that the government is also the only entity entitled to legislate on the development of laws included in the competences of Parliament to approve the bases of legal frameworks. Supporting this view, see Carlos Blanco de Morais, Curso de Direito Constitucional, As funções do Estado e o Poder Legislativo no Ordenamento Português, vol I, 2nd edn (Coimbra, Coimbra Editora, 2012) 343–48. Against this, see, amongst others, Jorge Miranda, Manual de Direito Constitucional, Actividade Constitucional do Estado, vol V, 4th edn (Coimbra, Coimbra Editoria, 2010) 409–11.

Legislation in Portugal  389

24.2.2.3.  Regional Legislative Decrees The Constitution establishes a third type of law: regional legislative decrees from the autonomous regions of the Azores and Madeira. Within these regions, the competence for the approval belongs to the regional parliaments (Article 232-1 of the Constitution). Regional legislative decrees may be approved in three main cases set forth in Article 227-1-a), b) and c) of the Constitution. In the first case, the regional parliaments may approve a regional legislative decree if three conditions are met: (i) the subject falls within the scope of the region; (ii) the matters involved are set out in the political and administrative statute of the region (which are laws approved by Parliament with superior legal force); and (iii) if the subject matter of the regional legislative decree is not the exclusive competence of Parliament or the government (Articles 227-1-a), 164, 165 and 198-2 of the Constitution). Second, the regional parliaments can enact regional legislative decrees in some of the matters included in the partially exclusive competences of Parliament (Article 165 of the Constitution) when authorised to do so by Parliament by means of an Authorisation Law. This is similar to the cases where Parliament can authorise the government to enact a decreelaw, but it is not possible for all the matters listed in the partially exclusive competences of Parliament. Third, regional legislative decrees may be approved within the ambit of the region to develop the principles or the general bases of legal frameworks set forth in laws (Article 227-1-c) of the Constitution).11

24.2.3.  Administrative Regulations Laws are considered as acts of the political powers and therefore they are an act of the legislative branch. However, laws are not the only rules enacted by public entities in the Portuguese legal system. The executive powers may also enact regulations when exercising administrative functions. These regulations are designated as administrative regulations (regulamentos administrativos). All administrative regulations must be based in law, although they are not required to execute a law. Therefore, both independent regulations and regulations aimed at executing specific laws are accepted (Article  112-6 and 7 of the Constitution). In addition, administrative regulations are required to comply with the law and a file may be brought before the Administrative Courts if it fails to comply with it (Articles 72–77 of the Code for Procedures before Administrative Courts (Código de Processo nos Tribunais Administrativos)). There are many different entities entitled to approve administrative regulations, such as the government (by means of Regulatory Decrees (Decretos regulamentares),

11 In practice, the first case is by far the most frequently used to legislate by the regional parliaments. It is subject to discussion if, once enacted, a regional legislative decree can be repealed by the Parliament or the government. See Blanco de Morais (n 10) 548–49.

390  João Tiago da Silveira Resolutions of the Council of Ministers (Resoluções do Conselho de Ministros, Portarias and Regulatory Orders (Despachos normativos)).12 In addition to the government, several administrative entities may also approve administrative regulations such as: (i) elected local authorities: municipalities (municípios) and parishes (freguesias); (ii) administrative departments within the state; (iii) public institutes/agencies; (iii) public associations; (iv) in some cases, state-owned companies; (v) independent administrative bodies (vi) public works and public service concessionaires to a certain extent; and vii) several bodies of the autonomous regions of the Azores and Madeira. Thus, more than 4,000 ­entities can approve administrative regulations in the Portuguese legal system.

24.2.4.  Hierarchy of Laws As mentioned above, the Portuguese Constitution is at the top of the hierarchy of laws, and every single law and administrative regulation is required to comply with its provisions. As stated earlier, both the Constitutional Courts and the Portuguese courts have the authority to judge whether a provision of law or an administrative regulation complies with the Constitution. The issue of whether EU law needs to comply with the Portuguese Constitution and, if so, to what extent is the subject of debate.13 It seems at the very least that EU law that is not compliant with the fundamental principles of a democratic state based on the rule of law can be challenged in the Portuguese courts.14 International treaties must comply with the Constitution, and laws are required to comply with them. Laws must comply with the Constitution, EU law and international ­treaties, and are also required to comply with laws with superior legal force (Article 112-2 and 3 of the Constitution). Thus, there are some types of laws with superior legal force, which are as follows: (i) organic laws, which are the laws listed in Article  166-2 of the Constitution; (ii) laws which must be passed by a two-thirds majority (Article 168-6 of the Constitution); (iii) laws which are normative prerequisites for other laws (eg, some laws which approve general bases of legal frameworks, such as the laws designed to approve the bases of the education system, the welfare system, the national health service, protection of the environment etc (Articles 164-i), 165-1-f) and g) of the Constitution); and (iv) laws which must be followed by other laws (eg, laws aimed at granting an authorisation to the government to enact a decree-law under Article 165 of the Constitution). Finally, as already underlined, administrative regulations must comply with the law.

12 In 2016, seven decretos regulamentares, 113 resoluções do conselho de ministros and 424 portarias were approved. See Boletim 7 (n 4). 13 On this subject, see Ana Maria Guerra Martins, Manual de Direito da União Europeia (Coimbra, Almedina, 2012) 511–16. 14 Article 8-4 of the Portuguese Constitution states that: ‘The provisions of the treaties that govern the European Union and the norms issued by its institutions in the exercise of their respective competences are applicable in Portuguese internal law in accordance with Union law and with respect for the fundamental principles of a democratic state based on the rule of law.’

Legislation in Portugal  391

24.2.5.  Procedure for the Approval of Laws 24.2.5.1.  Parliamentary Law The first step for the approval of a law is the presentation of a proposal. The Members of Parliament and parliamentary groups composed of Members of Parliament are authorised to present a proposal to be approved as law. In addition, the government, the parliaments of the autonomous regions of the Azores and Madeira, and groups of citizens are entitled to do so (Article 167 of the Constitution). However, there are certain limits to the power to present bills that must be taken into account: (a) Proposals from Members of Parliament, parliamentary groups, parliaments of the autonomous regions of the Azores and Madeira, and citizens cannot increase expenditure or reduce revenues set forth in the national budget for that year. (b) The Internal Regulation of Parliament (Regimento da Assembleia da República) states that only the government can present original proposals for an Authorisation Law on the subjects listed in Article 165 of the Constitution (Article 188-1 of the Internal Regulation of Parliament). The Constitution does not state such a limit and it is debatable if Members of Parliament and parliamentary groups are authorised to do so. (c) It is generally accepted (although it may be disputed) that proposals from the parliaments of the autonomous regions of the Azores and Madeira must relate to issues of the regions (Articles 167-1 and 227-1-f) of the Constitution).15 (d) Proposals presented by groups of citizens are required to comply with Law 17/2003 of 4 June, amended by Law 26/2012 of 24 July, Organic Law 1/2016 of 26 August and Law 52/2017 of 13 July – namely, 20,000 citizens duly registered to vote are required to present a proposal, although there are also additional requirements to meet. After the presentation of the proposal, there are three main steps for the approval of a bill (Article 168 of the Constitution): (1) Discussion and vote in a first hearing, which is meant to be a general discussion of the proposal (discussão e votação na generalidade). The discussion shall be held by a plenary meeting of the Members of Parliament. (2) Discussion and vote in a second hearing, if the proposal was approved at the first hearing. This discussion shall be held on each of the provisions of the bill, and amendments may be presented and voted on (discussão e votação na especialidade). Although the Constitution sets forth that this discussion and vote shall be held by specialized committees if the plenary decides (Article 168-3 of the Constitution), such committees do so on the basis of customary law without a plenary decision.16 (3) Final vote by the plenary of Parliament, again on the entire bill (votação final global).

15 JJ Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa anotada, vol II, 4th edn (Coimbra, Coimbra Editora, 2010), 346–47. 16 Article 150-1 of the Internal Regulation of the Parliament reflects such a custom. See Blanco de Morais (n 10) 456–57; Miranda (n 10) 296–97; Jorge Miranda and Rui Medeiros, Constituição Portuguesa Anotada, vol II (Coimbra, Coimbra Editora, 2006) 565.

392  João Tiago da Silveira After the final vote, there is usually a last review of the wording of the bill performed by the committee. This last review is not aimed at amending the bill, but only at correcting mistakes or improving the wording without changing the options approved. The President of Parliament then sends the bill to the President of the Republic for promulgation (Article 136 of the Constitution). The President has three options: (i) to promulgate the bill within 20 days; (ii) to veto the bill within 20 days of receiving it; and (iii) to file a claim before the Constitutional Court against provisions of the bill within eight days of receiving it (fiscalização preventiva da constitucionalidade). If the President promulgates, then the bill should be signed by the Prime Minister (who is not entitled to reject it) by means of an act designated as referenda under Article 140 of the Constitution. Finally, the law is published in the National Gazette and, unless otherwise stated by law, enters into force on the fifth day after its publication.17 If the President vetoes the bill, Parliament may decide not to insist on the approval of the bill, to amend it and send it back for promulgation or to insist on the same text, which requires the approval of more than 50 per cent of the Members of Parliament (Article 136-2 of the Constitution). However, in some special cases, approval by two-thirds of the Members of Parliament is required (Article 136-3 of the Constitution). If Parliament overcomes the veto by such a majority, the President is required to promulgate the bill within eight days of receiving it (Article 278-3 of the Constitution). Finally, if the bill is challenged before the Constitutional Court, the Court has 25 days to decide on this. If the Court considers provisions of the bill as unconstitutional, the President shall veto the bill and Parliament will have to assess it again. If the courts do not consider the bill to contravene the Constitution, the President shall promulgate or exercise the power of veto for political reasons under the procedure outlined above.

24.2.5.2.  Decree-Laws Enacted by the Government Proposals of decree-laws are usually prepared within a ministry that presents the proposal before the Council of Ministers. Usually, it is up to the Minister of the Presidency or the Secretary of State for Presidency of the Council of Ministers to manage the legislative procedure of the government, although changes may occur depending of the internal governance of each government. In a first hearing, the bill is subject to discussion and approval in the weekly meeting of secretaries of state (deputy ministers). If it is approved, then it may be considered by the Council of Ministers in one of its weekly meetings and approved. However, under special circumstances, the bill may be approved directly by the Council of Ministers without the intervention of the secretaries of state. After the approval at the final vote, a last review of the bill is usually carried out and then it is sent for promulgation by the President. The procedure described above concerning the laws from Parliament applies, but (i) the President has 40 days to promulgate or exercise the power of veto under Article 136 of the Constitution and (ii) the government may not approve a bill with the same text if the President vetoes the bill for political reasons

17 Article 2-2 of Law 74/98 of 11 November, amended by Law 2/2005 of 24 January, Law 26/2006 of 30 June, Law 42/2007 of 24 August and Law 43/2014 of 11 July.

Legislation in Portugal  393 or after a decision of the Constitutional Court that considers any provisions of the bill to be unconstitutional.

24.2.5.3.  Regional Legislative Decrees from the Regional Parliaments of the Azores and Madeira The procedure for the approval of regional legislative decrees by regional parliaments follows a similar pattern to the approval of laws by Parliament. However, the bill is sent to the Representative of the Republic for signature. He has the same options as the President of the Republic (sign, veto or challenge the bill before the Constitutional Court), but only 15 days to decide if the bill should be signed or sent back to the regional parliament under the power of veto (Article 233-2 of the Constitution). The deadline to file a claim before the Constitutional Court is eight days. For the following steps, similar procedural rules to the Laws of the Parliaments are applicable, but there is no referenda by the Prime Minister.

24.2.6.  Contents of the Law In general, a law can address any kind of subject. It is generally accepted that a law does not need to have general and abstract provisions, and therefore it can even include an administrative decision in its text.18 In fact, the concept of law in Portugal is generally accepted to be formal rather than substantive. If an individual decision is included in the text of the law, it is considered to be part of a law even if its substantive nature is different. However, there are some limits to this. Some result from the text of the Constitution and others from case law of the Constitutional Court. On the one hand, there are some matters which need to be addressed by law. This is the case for provisions aimed at restricting rights, freedoms and guarantees (which are fundamental rights), the annual National State Budget, new crimes and criminal penalties, the creation of new taxes or the regulation of certain matters concerning taxes, such as its scope, rate and fiscal benefits (Articles 18-3, 29-1 and 103-2 of the Constitution). On the other hand, the Constitutional Court recognises that a law is not entitled to eliminate the possibility of holding the government politically accountable. Thus, a law may be used (namely by Parliament) to approve acts from the ­executive branch, but cannot do so if it has the effect of reshaping the powers and accountability duties of the government set forth in the Constitution.19 Finally, the Constitution establishes that laws should be enacted in several matters and issues guidelines over their content (eg, the law shall define measures to protect the secrecy of legal proceedings; for the purposes of defending personal rights, freedoms and guarantees, the law shall ensure citizens swift judicial proceedings; and the law shall regulate the requisites for and the effects of marriage and its dissolution by death or divorce).

18 On this subject, see Miranda (n 10) 143–59. 19 See on this subject decisions of the Constitutional Court 214/2011, 24/98 and 1/97, available at: www.tribunalconstitucional.pt.

394  João Tiago da Silveira

24.3.  Legislative Drafting in Portugal Usually, legislative drafting is carried out by legally trained persons of departments of ministries or by the staff of ministers or secretaries of state. In Parliament, the Members of Parliament, the staff of parliamentary groups and the staff of the Parliament itself draft legislation. There is no need of certification or specific training to draft laws in Portugal. However, there are highly specialized postgraduate courses for legislative drafting provided by the major law schools and it is common for legislative drafters to attend such courses. Drafters often take care of other legal issues in their jobs as well. The main source of advice on drafting legislation in Portugal is the Legística handbook. This is a book on how to draft legal texts that was prepared by the Legal Policy and Planning Office of the Ministry of Justice (Gabinete de Política Legislativa e Planeamento do Ministério da Justiça) during the period 2000–02. It sets out the main rules for legal drafting in Portugal and provides explanations and examples on how to draft properly, including rules on style, how to amend legislation, systematics, titles, punctuation, numbering, reference to dates, numbers and legislation, capitals, abbreviations, preambles and final provisions.20 It is still the main Portuguese resource on this subject and is commonly used in Portugal as well as in other Portuguese-speaking countries.21 Some entities (eg, Parliament) have prepared handbooks on legislative drafting, but they all closely follow the pattern of the Legística handbook.22 In 2004 the Internal Regulation on the Functioning of the Council of Ministers approved an annex containing a set of rules on legislative drafting.23 These rules were similar to those given in the Legística handbook. In a sense, it transported the book into law. From 2004 to 2015, the government approved internal regulations with such an annex.24 However, since 2015, the government ceased to publish the annex with rules on legislative drafting.25 The government seems to be seeking an agreement with Parliament to establish a common set of rules for the laws of both entities and therefore considered that this new agreement would

20 David Duarte, Alexandre Sousa Pinheiro, Miguel Lopes Romão and Tiago Duarte, Legística – Perspectivas sobre a Concepção e Redacção de Actos Normativos (Coimbra, Almedina, 2002). 21 Legislative drafting in Angola, Cabo Verde Guiné-Bissau, Macau, Moçambique, São Tomé and Princípe, and East Timor closely follow the pattern of the Legística handbook. Some of these countries approved laws and regulations with a set of rules: Decreto Presidencial 251/12 of 27 December (Angola); Decreto-lei 6/2005 of 24 January (Cabo Verde); Lei 9/2008 of 24 September in São Tomé and Princípe; and Despacho 1/SEPCM/2007, published in 14 September 2007 in the IInd series of the Jornal da República (East Timor). 22 Regras de Legística a Observar na Elaboração de Actos Normativos da Assembleia da República, www.icjp.pt/ sites/default/files/cidp/projectos/docs/ar_regras_legistica.pdf. 23 Internal Regulation of the Council of Ministers of the XVI Constitutional Government, approved by Resolution of the Council of Ministers 126-A/2004 of 3 September. 24 The annex with standards of legal drafting was approved by the Internal Regulations of the XVI, VXII, XVIII, XIX and XX Constitutional Governments (Internal Regulation 126-A/2014 of 3 September; Internal Regulation 82/2005, of 15 April, amended by the Resolution of the Council of Ministers 186/2005 of 6 December, by Resolution of the Council of Ministers 64/2006 of 18 May and by Resolution of the Council of Ministers 198/2008 of 30 December; Internal Regulation 77/2010 of 11 October and Internal Regulation 29/2011 of 11 July, amended by the Resolution of the Council of Ministers 51/2013 of 8 August; Internal Regulation 90-B/2015 of 9 November). 25 Internal Regulation of the Council of Ministers of the XXI Constitutional Government, approved by Resolution of the Council of Ministers 95-A/2015 of 17 December.

Legislation in Portugal  395 substitute for the absent annex. Such agreement has not yet been reached, so there are no legislative drafting rules currently in force. In practice, even without any rules in force, the Legística handbook continues to be followed as the model.26

24.4.  Better Regulation Policies in Portugal Comprehensive efforts to build Better Regulation policies in Portugal started in the early twenty-first century. Since then, this issue has increasingly been included in political agendas and relevant new measures have been put in place.27 The following practices represent the major efforts and achievements on Better Regulation in Portugal and mainly result from the Legislar Melhor (2005–09 and 2015–19) and SIMPLEGIS (2009–11) programmes.28 First, relevant efforts were put in place to simplify the legislative framework and reduce the number of laws. A procedure to avoid the approval of unnecessary laws by the government was adopted in 2009–11, laws aimed to repeal unnecessary legislation were approved under the SIMPLEGIS and the Revoga+ programmes,29 and currently there is an internal guideline in force stating that laws and regulations should only be approved by the Council of Ministers in one of its weekly meetings once a month (Article 3-1 of the Internal Regulation of the Council of Ministers). In addition, measures and procedures to reduce the number of errors in laws and regulations approved by the government were in force between 2009 and 2011.30 Second, several measures were approved to ease access to legislation. Electronic freeof-charge versions of the Portuguese National Gazette (Diário da República) is currently the accepted way of publishing laws and regulations.31 This website features: (i) enhanced

26 A research project currently being held may produce a relevant outcome in the future. This project of the Lisbon Centre for Research in Public Law (www.icjp.pt/cidp) of the Law School of the University of Lisbon aims to identify common standards for legal drafting for Portuguese-speaking countries and regions by bringing together scholars and specialists from these countries and regions. The project includes Angola, Brazil, Cape Verde, GuineaBissau, Macau, Mozambique, São Tomé and Princípe, Portugal and East Timor Loosae. See João Tiago Silveira, ‘Portuguese Trends on Better Regulation’ (2016) 10(1) Journal of Legislative Evaluation 95. 27 For a more detailed description of Portuguese Better Regulation policies, see Tiago Silveira (n 26) 75–100. 28 For an overview of the former Portuguese Better Regulation programmes, see Diana Ettner and João Tiago Silveira, ‘Programas de Better Regulation em Portugal: o SIMPLEGIS’, E-pública, Revista eletrónica de Direito Público, ICJP/CIDP, vol 1, no 1, 2014, https://www.e-publica.pt/volumes/v1n1a08.html. For the purposes of this chapter, we have only considered Better Regulation efforts referring to legislation. On the streamlining and simplification of administrative procedures, relevant projects and actions have been undertaken under the SIMPLEX programmes since 2005. 29 In 2011, Decree-Law 70/2011 of 16 June repealed 233 laws and a bill to revoke 433 laws was presented to the Parliament (Proposal of Law 40/XI), namely from the period 1974–75. The latter has never been published because the Prime Minister resigned and new elections were called before its approval. Then, in 2018, 1,449 obsolete decree-laws from the period 1975–80 were repealed by Decree-Law 32/2018 of 8 May and a law proposal was presented to Parliament to revoke an additional 821 laws from this period (Proposal of Law 124/XIII, already approved by the Parliament and pending promulgation by the President of the Republic). In addition, the Council of Ministers has approved the Proposal of Law 191/XIII (pending in Parliament) and the Decree-Law 49/2019 of 12 April to repeal 1,168 laws from the period 1981–85. 30 The percentage of decree-laws and implementing decrees without formal and grammatical errors increased from 89 to 95 per cent in this period. See Ettner and Tiago Silveira (n 28). 31 See www.dre.pt.

396  João Tiago da Silveira search engines; (ii) complete information on each published law; (iii) a translation of legal terms; and (iv) a legal dictionary. In addition, the publication of decree-laws and implementing decrees (decretos regulamentares) is given, along with informative summaries of their content in plain language in both Portuguese and English. In addition, to improve the access and knowledge of new laws and regulations which may have an impact on companies, two standard dates are set for their entry into force. Although some exceptions are accepted, these bills shall enter into force on 1 January or 1 July each year, therefore reducing the number of times that a company will have to deal with a new legal framework within a year (Article 40 of the Internal Regulation of the Council of Ministers). Finally, several types of regulations were deregulated and/or their publication began to be made on websites dedicated to their subject matter instead of the National Gazette, thus allowing for more user-friendly access to these subject matters.32 Third, in relation to legislative impact assessment, several important steps were taken. Previous impact assessment, analysis of statistics, previous public discussions, prior planning and planned execution were used by the Legal Policy and Planning Office of the Ministry of Justice (Gabinete de Política Legislativa e Planeamento do Ministério da Justiça) in major law reforms in the beginning of the twenty-first century.33 Between 2005 and 2011, procedures for an impact assessment on administrative burdens was put in place, along with training of public officers for legislative assessment, and a practical guide on legislative assessment was published.34 Recently, ex ante legislative impact assessment of bills to be submitted to the Council of Ministers is regularly held under the ‘How much does it cost?’ (‘Custa Quanto?’) measure.35 Although this is a recent practice and the outcome will need to be evaluated in the future, the assessment reports are transmitted to all the members of the government attending the Council of Ministers, as well as to their staff. Therefore, this is treated as a key element for decision-making. Finally, several other relevant steps in relation to Better Regulation were taken, such as: (i) measures aimed at the timely and swift transposition of EU directives, including streamlined procedures and omnibus decree-laws to transpose several different EU directives in one go;36 (ii) the approval of internal guidelines for the better execution of laws, including a provision stating that law proposals will not be accepted and included in the

32 This was the case for the so-called ‘gaming regulations’ aimed at creating gaming areas, the regulations for the creation of forest intervention areas and regulations for the creation of stamps. As a result, the number of approved regulations has decreased dramatically and the search both for laws and regulations in the National Gazette and for these other acts has been made easier. See Ettner and Tiago Silveira (n 28). 33 The Legal Policy and Planning Office of the Ministry of Justice is now the General Directorate for Justice Policy (Direção-Geral da Política de Justiça). Its competences have increased and it now also deals with matters regarding international relations and alternative dispute resolution. Decree-Law 163/2012 of 31 July regulates the General Directorate for Justice Policy. See João Tiago Silveira, ‘Gabinete de Política Legislativa e Planeamento do Ministério da Justiça’, Legislação, Cadernos de Ciência da legislação no 28 (April/June 2000), INA, 33 ff. 34 Carlos Blanco de Morais (ed), Guia de Avaliação de Impacto Normativo (Coimbra, Almedina, 2010). 35 Resolution of the Council of Ministers/ 44/2017 of 24 March and Resolution of the Council of Ministers/ 74/2018 of 8 June. 36 eg, Decree-Laws 32/2010 of 13 April, 44/2010 of 3 May, 140-A/2010 of 30 December, 137/2017 of 8 November, 41/2018 of 11 June and 59/2019 of 8 May.

Legislation in Portugal  397 agenda of the Council of Ministers without the drafts of the regulations aimed at executing them (Article 27-1 of the Internal Regulation of the Council of Ministers);37 (iii) the use of IT tools to support the workflow in the approval of governmental laws; and (iv) the approval of a legal framework for the hearing of private and public entities.38

Further Reading C Blanco de Morais, ‘Novas políticas públicas no domínio da legislação: um comentário ao programa “legislar melhor”’, Legislação, Cadernos de Ciência da Legislação no 44 (October/December 2006), INA ——. Manual de Legística, Critérios Científicos e Técnicos para Legislar Melhor (Verbo, 2007) ——. ‘O programa “Legislar Melhor”, Dois anos depois’, Legislação, Cadernos de Ciência da Legislação no 50 (October/December 2009), INA ——. Curso de Direito Constitucional, As funções do Estado e o Poder Legislativo no Ordenamento Português, vol I, 2nd edn (Coimbra, Coimbra Editora, 2012) S Brito and D Ettner, ‘SIMPLEGIS, Fewer Laws, More Access, Improved Enforcement’ in Quality of Legislation, Proceedings of the Ninth Congress of the International Association of Legislation (IAL) in Lisbon, 24–25 June 2010 (Baden-Baden, Nomos, 2011) D Duarte, A Sousa Pinheiro, M Lopes Romão and T Duarte, Legística – Perspectivas sobre a Concepção e Redacção de Actos Normativos (Coimbra, Almedina, 2002) D Ettner and J Tiago Silveira, ‘Programas de Better Regulation em Portugal: o SIMPLEGIS’, E-pública, Revista eletrónica de Direito Público, ICJP/CIDP, vol 1, no 1, 2014, https:// www.e-publica.pt/volumes/v1n1a08.html JJ Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 7 ed (Coimbra, Almedina, 2003) JJ Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa anotada, vol II, 4th edn (Coimbra, Coimbra Editora, 2010) J Melo Alexandrino, Lições de Direito Constitucional, vol II, 2nd edn (Lisbon, AAFDL, 2017) J Miranda, Manual de Direito Constitucional, Actividade Constitucional do Estado, vol V, 4th edn (Coimbra, Coimbra Editora, 2010) J Miranda and R Medeiros, Constituição Portuguesa Anotada, vol II (Coimbra, Coimbra Editora, 2006) J Tiago Silveira, ‘Portuguese Trends on Better Regulation’ (2016) 10(1) Journal of Legislative Evaluation 75–100 ——. ‘Problemas habituais na preparação e redação de leis e regulamentos’, E-pública, Revista eletrónica de Direito Público, ICJP/CIDP, vol 5, no 3, 2018, https://www.e-publica.pt/ volumes/v5n3a11.html

37 Internal Regulation of the Council of Ministers/ 95-A/2015 of 17 December, amended by Internal Regulation of the Council of Ministers 44/2017 of 24 March, Internal Regulation of the Council of Ministers/ 171/2017 of 13 November, Decree-Law 90/2018 of 9 November and Internal Regulation of the Council of Ministers/ 49/2019 of 4 March. 38 Decree-Law 274/2009 of 2 October.

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25 Legislation in Romania EMŐD VERESS

Context Romania, after the overthrow of the Soviet-style dictatorial system in December 1989, began a slow and staggered transition process, which was limited in scope and pace by political, economic and cultural factors. After provisional arrangements in 1991, a new Constitution was adopted and since then it has been amended once, in 2003, when a ­relatively wide-ranging constitutional reform materialised, aiming to create the constitutional foundations of European integration, to achieve a partial institutional re-alignment and to develop the protection of fundamental rights guaranteed by the basic law. Romania joined the EU in 2007. According to the constitutional text with normative but also programmatic value, Romania is a democratic and social state, governed by the rule of law, in which human dignity, citizens’ rights and freedoms, the free development of human personality; justice and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the Revolution of December 1989, and shall be guaranteed. Also, the basic law states that the observance of the Constitution, its supremacy and that of the laws shall be mandatory.1 According to the World Justice Project (WJP) Rule of Law Index, Romania ranks twenty-ninth out of the 113 countries surveyed, which is above the median, with a stable rule of law.2 This does not mean that the rule of law is unproblematic. Frequent complications occur, and one fundamental and recurring problem is related to the quality and stability of legislation: deficient and unstable legislation in practice confines legal security and the rule of law, and there are some imbalances in drafting legislation.

25.1.  Legislation: The Hierarchy of Provisions Romania is considered to be a jurisdiction belonging to the continental legal system. Statutes enacted by the legislative branch and normative acts issued by the administrative

1 Article 1 of the Constitution (1991). 2 The WJP Rule of Law Index 2017–18, https://worldjusticeproject.org/our-work/wjp-rule-law-index/ wjp-rule-law-index-2017%E2%80%932018.

400  Emőd Veress authorities for the enforcement of parliamentary laws act as the sources of law.3 Judicial precedent is not a source of law, but if issued by a higher court, judicial decisions have a certain prestige and are frequently used as a reference point by attorneys in their practice. In addition, it should be noted that the High Court of Cassation and Justice may issue decisions intended to interpret statutory provisions, during procedures called the ‘appeals in the interest of the law’ and ‘preliminary rulings’. Decisions handed down in such procedures are generally compulsory for all courts which are called upon to resolve cases involving the given legal problems resolved by such decisions. Therefore, some judicial decisions are laws in all but name and must be respected as such, even if the system of judicial precedent is not applicable in the Romanian legal system. Legal scholarship (doctrine) is not a source of law either. However, in private law, the customs (common practices) constitute a source of law, but with a subsidiary role: in matters governed by law, customs apply only to the extent expressly addressed by the law. In cases not regulated by the law, first, customs, second, in the absence of customs, the legal provisions regarding similar situations (analogy) and, third, in case of lack of analogy, the general principles of law are applied.4 A custom can also be overridden by the judge if it runs contrary to public order and good morals. The bicameral Parliament, consisting of the Chamber of Deputies and the Senate, is defined as the supreme representative body of the Romanian people and the sole legislative authority of the country.5 Parliament passes three types of laws: constitutional, organic and ordinary. The Romanian legal system is based on the principle of the supremacy of the Constitution. Constitutional laws pertain to the revision of the Constitution. Revision of the Constitution may be initiated by the President of Romania at the proposal of the government (in the sense of the Cabinet or Cabinet of Ministers), by at least a quarter of the Deputies or Senators, as well as by at least 500,000 citizens who have the right to vote.6 The draft or proposal of revision must be adopted by the Chamber of Deputies and the Senate by a majority of at least two-thirds of the members of each chamber. If no agreement can be reached by a mediation procedure, the Chamber of Deputies and the Senate shall decide thereupon, during a joint session, by a vote of at least three-quarters of the number of Deputies and Senators. The revision shall be final after the approval by a referendum held within 30 days after the date on which the draft or proposal of revision was passed. This procedure was successfully performed only once, in 2003. An abortive attempt at the revision of the Constitution occurred in 2018 when the referendum held on a proposed amendment failed to attract a sufficient number of voters and therefore the required quorum was not achieved. Organic laws come second in the normative hierarchy. They are adopted by a majority vote of the total members of each chamber and regulate fields of fundamental importance for which the Constitution expressly stipulates the enactment of organic laws, such as the electoral system, the organisation, functioning and financing of political parties, the organisation

3 Legislation that is in force is now available free of charge: http://legislatie.just.ro. 4 Article 1 of the Civil Code (2009). 5 Article 61 of the Constitution. 6 The citizens who initiate the revision of the Constitution must have their domiciles in at least half the number of the counties in the country, and in each respective county or in the Municipality of Bucharest, at least 20,000 signatures must be recorded in support of this initiative.

Legislation in Romania  401 and holding of referendums, the organisation of the government, criminal offences, the status of public servants, the general legal status of property and inheritance, the general organisation of education, the organisation of local public administration and general rules on local autonomy, the general rules covering labour relations, the status of national minorities in Romania etc. Ordinary laws rank third in the normative hierarchy: they must comply with both the Constitution and organic laws. Ordinary laws regulate any other social relations which are not reserved for constitutional and organic laws by the text of the fundamental law. They are passed by the a vote of the members present in each chamber during the given legislative session when the final vote takes place. The Romanian Constitution does not provide for the possibility of a legislative referendum, although the President may, after having consulted Parliament, ask the people of Romania to express, in a referendum, their will on matters of national interest. This refer­ endum only has a consultative character and its results are therefore non-binding. Another important player in legislation is the government (Cabinet of Ministers). First of all, the government can adopt decisions (hotărâri) which are issued to organise the enforcement of laws and therefore are subordinated hierarchically to laws adopted by the Parliament. This is the usual way in which the government can issue normative acts. But the Constitution also empowers the government to adopt ordinances (ordonanțe), normative acts with legal force, in two cases: a) First, Parliament may pass a special law enabling the government to issue ordinances in fields outside the scope of organic laws. The enabling law shall compulsorily establish the scope of the ordinances to be issued and the date up to which these may be issued. If the enabling law so provides, ordinances shall be submitted to Parliament for approval, until the expiry of the time limit set by Parliament. Non-compliance with the term entails the discontinuation of the effects of the ordinance. b) Much more problematic is the constitutional provision which enables the government to adopt so-called emergency ordinances (ordonanțe de urgență), without the existence of an enabling law under the condition of the existence of an exceptional case the regulation of which does not countenance delay. The government has the obligation to give the reasons for the emergency status within the content of the emergency ordinance. An emergency ordinance shall only come into force after it has been submitted for debate in an emergency procedure to the Parliament7 and after it has been published in the Official Gazette of Romania. As there are no constitutional limitations, as in the case of regular ordinances, the emergency ordinances can regulate social relations reserved for organic laws. The restraints for the use of emergency ordinances

7 If not in session, the Chambers shall be convened by all means within five days after the submission or, as the case may be, after forwarding. If, by 30 days after the submission date, the notified chamber does not decide on the ordinance, the latter shall be deemed to have been adopted and shall be sent to the other chamber, which shall also make a decision in an emergency procedure. The Constitution provides (albeit in vain) that when an emergency ordinance is passed, the Parliament should be convened. The government uses emergency ordinances to intervene in legislation during parliamentary sessions and, during the parliamentary breaks, ordinary ordinances, which are based on an enalbing law adopted by the supporting political majority in the Parliament.

402  Emőd Veress are that such acts cannot be adopted in the field of constitutional laws or where they would affect the status of fundamental institutions of the state, the rights, freedoms and duties stipulated in the Constitution and electoral rights, and cannot establish steps for ­forcibly transferring assets to public property. The Constitutional Court failed to create an unequivocal and clear test to establish the meaning of the ‘exceptional case the regulation of which cannot be postponed’, even though it has found in several cases the lack of any exceptional situation and therefore the emergency ordinance was declared unconstitutional. The trenchant presence of ordinances in the Romanian legal system can be understood from the information given in the table below. Table 25.1  The use of ordinances in Romania

Year (selection)

Laws passed by Parliament, including laws regarding approvals, modifications, supplementation and rejection of ordinances

Ordinances issued based on ex ante Total Emergency parliamentary number of ordinances authorisation ordinances

Ordinances as a percentage of the number of laws passed by Parliament

1998

261

72

131

203

43.75

1999

210

219

120

339

61.75

2000

233

300

138

438

65.27

2005

415

210

55

265

38.40

2010

292

133

29

162

35.68

2015

358

68

43

111

23.66

2016

252

99

27

126

33.33

2017

278

117

30

147

34.58

2018

301

104

18

122

28.84

This strong presence of ordinances and especially emergency ordinances in the Romanian legal system has had a curtailing effect on the rule of law:8 • The government (Cabinet of Ministers) is an appointed body and its ordinances do not have the same legitimacy as the laws adopted by the elected Parliament. The issue of legitimacy can be raised and due to the high number of such ordinances in the Romanian legal system, the constitutionally declared principle of separation and balance of powers (the checks and balances upon which any functional legal system relies) is distorted. • The government has the right of initiate legislation, so an ordinance is under normal conditions nothing more than a legislative proposal that is adopted by the government



8 Drăganu

Tudor: Introducere în teoria şi practica statului de drept (Cluj-Napoca, Dacia, 1992) 95.

Legislation in Romania  403 and enters into force without passing through the normal parliamentary legislative procedure. The problem is that the legislative procedure is aimed at ensuring publicity, consideration and quality of legislation, and the lack of these requirements is detrimental to the quality of Romanian legislation. • Legal certainty, predictability of legislation and stability of regulations in particular are very important. As has been correctly pointed out, ‘one of the few issues in which different directions and concepts of legal theory, from natural law to legal positivism and legal sociology to Marxist law theory, more or less agree is that one of the fundamental values ​​of law is its security’.9 Emergency government ordinances must be compulsorily approved by the Parliament. In case of ordinary ordinances issued on the basis of a prior parliamentary authorisation, the approval is mandatory only if requested by the enabling law (and this is the general practice). In the (lengthy) period between the enactment and the parliamentary approval, the ordinance is in force and is applied as such. However, during parliamentary procedure, Parliament may modify, supplement or even reject the ordinance, leading to legal instability. In many cases, government ordinances (perhaps due to a lack of parliamentary consideration) contain errors and inaccuracies. The consequences are sequential modifications. The ministers and the heads of specialised government agencies and other bodies may also issue regulations (ordin) in order to enforce the law, which constitute norms subordinated to the laws enacted by Parliament and also to government decisions. Similarly, the heads of autonomous administrative authorities (for example, the Romanian National Bank, the Financial Supervisory Authority, the Competition Council and the National Audiovisual Council) often have regulatory powers. Local administrative authorities (local councils, mayors and county councils) also have regulatory competence based on the provisions of Law no 215/2001 on local public administration. Limitations derive from the principles of legality (these local regulations, sometimes called by-laws in common law jurisdictions, must be in compliance with all regulations that occupy a superior position in the legal hierarchy) and must respect the limi­ tations imposed on the powers of local authorities (these local regulations may be enacted only to the extent of local autonomy in a unitary state such as Romania). They must also take into consideration the territorial scope to which their application may extend (those regulations are in force only in the communes, towns, municipalities and counties where the local authority which enacted them is functioning). Local autonomy confers on local public authorities the right (within the limits of the law) to take the initiative in all fields except those expressly attributed to other public authorities. Powerful centralist traditions are still crucial today in Romania and in this context, these local regulatory powers are quite limited in scope. Regarding public international law, treaties ratified by Parliament, according to the law, are part of domestic law.10 If a treaty to which Romania is to become a party contains provisions that are contrary to the Constitution, its ratification shall only take place after the



9 Vilmos

10 Article

Peschka, Értékek és kategóriák a jogalkotásban. Jogtudományi Közlöny 1981. IV. sz. 242. 11 of the Constitution.

404  Emőd Veress revision of the Constitution. Where any contradictions exist between the treaties on fundamental human rights to which Romania is a party and domestic laws, the international regulations shall take precedence, unless the Constitution or national laws contain more favourable provisions.11 Specific rules in the basic law deal with the legal system of the EU. Romania’s accession to the founding treaties of the EU, with a view to transferring certain powers to EU institutions (transfer of sovereignty), had to be carried out by means of a law adopted in the joint session of the Chamber of Deputies and the Senate with a majority of two-thirds of the number of deputies and senators. The same applies for exercising in common with the other Member States the abilities stipulated in such treaties (the adoption of modifications regarding EU primary law). There is no specific procedure for transposing EU directives or implementing EU regulations, but generally the government has the initiative and proposes a wording for such regulations. As a result of Romania’s accession to the EU, the provisions of the constituent treaties of the EU as well as the other mandatory European regulations take precedence over the competing provisions of domestic laws.12 When new regulations are prepared, the legislative solutions envisaged should take into account the relevant EU rules to order to ensure their compatibility with these. Soft law traditionally has very limited relevance in internal legislation. However, in certain fields of economic activity, soft law emerged. For example, in 1999 the Romanian Advertising Council was founded as a professional, non-governmental, non-profit and independent organisation.13 The Council enacted a Code of Advertising Practice, which is a tool of self-regulation. The Code is a set of norms and ethical rules to be voluntarily respected by all those involved in advertising.

25.2.  The Organisation, Procedure and Management of Legislation The prerogative of initiating legislation belongs to the government, deputies, senators or a group of at least 100,000 citizens with a right to vote.14 The legislative procedure is defined by the principle of bicameralism as reformed in 2003.15 The Chamber of Deputies and the Senate are able to adopt laws as first notified chambers. The Constitution expressly states this competence in the case of the Chamber of Deputies in a bounded list: legislative proposals for the ratification of treaties or other international agreements and the legislative measures deriving from the implementation of such treaties and agreements, and different organic laws, such as the organisation of public radio

11 ibid art 20. 12 ibid art 148. 13 www.rac.ro. 14 The citizens who exercise their right to a legislative initiative must have their domiciles in at least one-quarter of the country’s counties, while, in each of those counties or the Municipality of Bucharest, at least 5,000 signatures should be registered in support of such an initiative. A legislative initiative of the citizens may not touch on matters concerning taxation, international affairs, amnesty or pardon. 15 Ion Brad and Emőd Veress, ‘Procedura întoarcerii legii reglementatã de art. 75 din Constitutia României’ (2005) 3 Dreptul 86.

Legislation in Romania  405 and television services and the parliamentary control over their activity, categories of civil servants who shall not join political parties, military service, the organisation and functioning of the Advocate of the People (ombudsman), the organisation of the government and of the Supreme Council of National Defence, the general organisation of education, the organisation of local public administration, the territorial organisation, the general rules on local autonomy, the administrative litigation, the organisation and functioning of the Superior Council of Magistracy, the courts of law, the Public Ministry (state ­prosecution) and the Court of Audit, the establishment of autonomous administrative authorities, the organisation of the Constitutional Court etc.16 Any other legislative proposal shall be submitted to the Senate, as the first notified chamber, for debate and adoption. The first notified chamber shall pronounce within 45 days. For codes and other extremely complex pieces of legislation, the time limit is 60 days. If such time limits are exceeded, it shall be deemed that the bill or legislative proposal has been adopted. This is a so-called tacit adoption that was introduced in 2003 to speed up the legislative process. After the first notified Chamber adopts or repeals a bill, the legislative proposal shall be sent to the other chamber, as the second notified or decisional (decision-making) chamber, which will make a final decision.17 Three conclusions can be drawn from this: a) Romanian bicameralism has a specific feature: the first notified chamber (which can be the Chamber of Deputies or the Senate, depending on the subject of the legislative proposal) carries out a first reading of the proposal in an almost preparatory manner, because the final decision does not belong to that parliamentary chamber. The decisional chamber, on the other hand, makes a final decision, ie, the final text of the law is established by this chamber, possibly overriding the positions of the person initiating the bill or the first notified chamber of Parliament. b) The first notified chamber has a time limit of 45 or 60 days to adopt the proposal, otherwise the proposal is tacitly adopted. On the contrary, the decisional chamber has no time limit to adopt the law and to establish its final wording. c) As a result of the 2003 reform, Romanian bicameralism has to be considered asymmetric. Since the powers of the Chamber of Deputies as the first notified chamber have been defined in a limited manner, consequently the competence of the Senate as a decision-maker is similarly construed in a restrictive manner. On the other hand, since the competence of the Senate as the first requested chamber covers all other social relations, the Chamber of Deputies’ decision-making power is also much broader. The consequence is that the role of the Chamber of Deputies in forming definitive

16 This competence also includes the organic laws stipulated by arts 79(2), 102(3), 105(2), 118(2) and (3), 120(2), 126(4) and (5) of the Constitution. 17 In the case of conflict of competences and in cases where a proposal contains mixed rules which trigger the competence of both chambers concomitantly, the Constitution sets detailed norms. In the event that the first notified chamber adopts a provision which belongs to its decision-making competence, the provision is adopted as final if the other chamber also adopts it. Otherwise, for the provision in question only, the proposal shall be returned to the first notified chamber, which will make a final decision in an emergency procedure (regarding the very text belonging to its decision-making competence). These provisions concerning the bill being returned shall also apply accordingly if the decision-making chamber adopts a provision for which the decision-making competence belongs to the first chamber. See art 75 of the Constitution.

406  Emőd Veress legal texts as the decision-making chamber is much more pronounced than that of the Senate. This was counterbalanced in the context of the 2003 constitutional reform by including issues of state organisation that are of fundamental importance into the Senate’s decision-making powers (see above for the powers of the Chamber of Deputies as the first notified chamber). The Constitutional Court in practice has corrected or re-configured the results of the 2003 constitutional reform in order to protect bicameralism. When the decisional chamber gave a substantially different legislative solution compared to that adopted by the first notified chamber, the Constitutional Court stated that the principle of bicameralism was defeated. If the final version of the law in the drafting adopted by the decisional chamber departs substantially from the form adopted by the reflection (first notified) chamber, this basically equates to the exclusion of the latter from the law-making process. The law must be the result of the concurrent will of both chambers of Parliament.18 The proposals (bills) are subject to the control of the Legislative Council (Consiliul Legislativ). The Legislative Council is an advisory body of experts organised as an institution of Parliament which analyses draft legislation for the purpose of a systematic unification and coordination of the whole body of laws.19 The advisory opinion of the Council is made and transmitted in writing. It can be wholly favourable, favourable with some objections or proposals, or wholly negative. Favourable opinions containing objections or proposals as well as negative opinions shall be motivated and may be accompanied by documents or information upon which they are based. In both chambers of Parliament, there are organised committees that play a very important role in the legislative process. They review the legislative proposals and discuss possible amendments, and will make the proposal to adopt or modify the legislative proposal in a report. The deadline for submitting the report, if the Chamber of Deputies is the first notified chamber, is no more than 14 days and no more than 60 days if the Chamber of Deputies is a decision-making chamber.20 In the Senate, the committee must file the report within the time limit set by the Permanent Bureau of the Senate. The proposals are subject to the Chamber’s plenary debate in the sequence provided on the approved agenda. There is also a very specific legislative procedure: assumption of responsibility by the government.21 The government may assume responsibility before the Chamber of Deputies and the Senate, in joint session, in favour of a legislative proposal. The Parliament does not analyse or debate the proposal; instead, at least a quarter of the total number of deputies and senators can initiate a motion of censure (also called a motion of no confidence), which, if adopted by a majority vote of the deputies and senators, will result in the dismissal of the government. If the government has not been dismissed (because no motion of censure was initiated or the motion presented did not meet the required number of votes), the legislative proposal presented, amended or completed, as the case may be, with the amendments



18 See,

for example, Constitutional Court decisions 472/2008, 1093/2008, 710/2009 and 1575/2011.

19 For details, see Law no 73/1993 for the establishment, organisation and functioning of the Legislative Council. 20 Article 21 Article

69 of the Standing Orders of the Chamber of Deputies. 114 of the Constitution.

Legislation in Romania  407 accepted by the government22 shall be deemed as passed: it thereby becomes a law adopted (indirectly) by the Parliament. The motion of censure is ‘provoked’ by the government, so it can control the parliamentary support of its legislative objectives. In practice, the government applies this procedure due to its speed when it has stable parliamentary support and/or the legislative objective is such that no motion of censure will be presented, because the objective of the proposal is based on high level of political consensus. The main reason for the government to take responsibility for a legislative proposal is to avoid a lengthy parliamentary debate on complex and extensive laws. However, the mathematics of voting can lead to strange results. The main problem with assuming government responsibility is that Parliament does not vote on a draft law, but on a motion of censure. An absolute majority is required to adopt this: it does not matter whether it is a simple or an organic law. For example, in the case of 465 delegates (329 deputies and 136 senators), 233 members of a parliamentary chamber should vote in favour of a motion of censure (an absolute majority). Suppose that 100 delegates are absent or do not vote, so 365 members of the Parliament are present and vote. A total of 230 votes are cast in favour of the motion because they want the government to fail and they do not want to accept the legislative proposal. A total of 135 votes are cast in favour of the government and against the motion of censure. However, the government remains in place and the law is considered to be accepted because the motion of censure was not adopted.23 In one case, the government assumed responsibility for a legislative package proposed as a single draft law which in fact was constituted of 15 separate draft laws. The Constitutional Court has established the constitutionality of this approach because the legislator can regulate a complex group of social relations by a single law. The same law can regulate social relations for the first time and can modify and supplement existing laws to achieve the legislative purpose. The Constitutional Court has put forward these arguments in the light of the uniform objective (anti-corruption measures) followed by the law.24 A similar problem arose in 2005, when the government linked two packages of laws on property reform and justice reform into a single proposal for which it assumed responsibility. The Romanian Constitutional Court confirmed its previous position.25 No provision of the Constitution prohibits the same law from regulating several areas of social relations. The unified goal in this case was to fulfil the conditions of European integration. This procedure also excludes the substantive and qualitative contribution of the Parliament to the legislation even if it is less problematic than the practice of (emergency) ordinances discussed above. For example, the new Civil Code (Codul civil) was adopted through this procedure in 2009. Prior to the entry into force of this Code on 1 October 2011, Law no 71/2011 for the implementation of the Civil Code led to a substantial and extensive change in the legal text because the plethora of legal solutions to be introduced by the law

22 In 2003, when the Constitution was reformed, the constitutional text was changed to allow amendments to the draft law submitted by the government in this specific procedure. Amendments must be agreed by the government; otherwise they will not be incorporated into the law. The 2003 constitutional reform created a limited right for the Parliament to initiate changes in the proposal, but subjected this to government acceptance. 23 Tudor Drăganu, Drept constituțional și instituții politice, vol II (Bucharest, Lumina Lex, 1998) 172–77. 24 Constitutional Court decision no 147/2003. 25 Constitutional Court decision no 375/2005.

408  Emőd Veress indirectly adopted by Parliament had not been properly developed and tested, and therefore a wide-ranging adaptation was needed. A law once adopted by the decisional chamber must be submitted for promulgation to the President of Romania. Promulgation shall be given within 20 days after receipt of the law. Before promulgation, the President of Romania may return the law to Parliament for reconsideration, but may do so only once. Also, there is a possibility to initiate an ex ante control of constitutionality (before promulgation) upon notification by the President of Romania, one of the presidents of the two Chambers of Parliament, the government, the High Court of Cassation and Justice, the Advocate of the People or a group of at least 50 deputies or at least 25 senators. In the event that the President has requested that a law be reconsidered or a review has been asked for as to its conformity with the Constitution, promulgation shall be made within 10 days calculated from the receipt of the law (passed again after its reconsideration by the Parliament) or of the decision of the Constitutional Court (confirming the constitutionality of the law).26 The law shall be published in the Official Gazette of Romania (Monitorul Oficial al României) and shall come into force three days after its publication date or on a subsequent date stipulated in its text.27 Emergency ordinances enter into force on the date of their publication in the Official Gazette of Romania, subject to their prior submission to the competent (first notified) parliamentary chamber if no later date is provided in their contents.

25.3.  Developing Legal Policy and Legal Intent The whole procedure of drafting laws in order to implement Better Regulation goals effectively was included in a mandatory legal text: Law no 24/2000 on the rules of legislative technique for the elaboration of normative acts.28 This also defines the term ‘law-making’ as the main way to implement public policies, providing the tools needed to implement economic and social development solutions, and to exercise public authority.29 The legislative technique ensures the systematisation, unification and coordination of the legislation, as well as the appropriate legal content and form for each normative act. These rules are mandatory. In order to substantiate any new regulation, the initiator must start from present and future social considerations, as well as from the insufficiencies of the legislation in force. Draft legislative acts must be submitted for adoption together with a statement of reasons, a substantiation note or an approval report and an impact assessment, as appropriate. Normative acts that will have an impact on the social, economic and environmental spheres, on the consolidated general budget or on the legislation in force are elaborated on the basis of public policy documents approved by the Parliament or the government.

26 Article 77 of the Constitution. 27 ibid art 78. 28 During the Soviet-style dictatorship, the State Council issued a General Methodology of Legislative Technique on the Preparation and Systematization of Draft Normative Acts of 3 February 1976. 29 Article 1(2) of Law no 24/2000.

Legislation in Romania  409 The draft act must integrate organically into the existing system of legislation. The proposal must be correlated with the provisions of higher-level regulations, but also those of the same level with which it is in connection. A subordinated draft regulation, prepared on the basis of a higher-level act, may not exceed the limits of competence established by that act and may not be in breach of its principles and provisions. Drafting legislation is also subordinated to several principles. First, the uniqueness of regulation in a certain matter requires that regulations of the same level and with the same subject matter shall be, as a general expectation, included in a single normative act. Second, it is necessary to avoid redundancy. In the process of regulation, it is forbidden to provide for the same norms in several articles or paragraphs of the same normative act or in two or more normative acts. Theoretically, regulations on the same matter spread across more than one piece of legislation in force are subjected to the concentration process. However, in practice, this is not always the case. For example, Law no 31/1990 on companies regulates only some of the existing types of companies under Romanian law.30 Third, in order to concentrate legislation, the process of drafting will aim at the explicit abrogation of the legal provisions which have fallen into disuse (abandonment) or which record contradictory aspects in relation to the envisaged regulation. Fourth, with a view to systematising and concentrating legislation, regulations in a particular field or relating to a particular branch of law, subordinated to common principles, can be reunited in a unitary structure in the form of codes.31 In practice, besides the four ‘classic’ codes (the Civil Code, the Civil Procedure Code, the Criminal Code and the Criminal Procedure Code), there are several real (comprehensive) codes, as the Labour Code. Others (although they are called codes) do not really have this character, because besides this ‘code’, there are (too) many rules scattered across various pieces of legislation that would find their place in the code. This is the case, for example, for the Consumer Code. The elaboration of draft normative acts must be preceded according to their importance and complexity by a scientific documentation and analysis. The jurisprudence of the Constitutional Court, the European Court of Human Rights and the national courts, and also the legal doctrine in the matter must be considered. The parliamentary proceedings are transparent: the websites of both parliamentary chambers32 offer detailed information and documents of the legislative procedures in the case of each draft. Law no 52/2003 on decisional transparency in public administration states that during the drafting procedures for normative acts, the public administrative authority also has the obligation to publish an announcement regarding this action on its own website, to display the draft at its own premises in a publicly accessible place and to send it to the central or local media, as the case may be.33

30 For more details and on the necessity of codification, see Emőd Veress, ‘Argumente pentru reforma legislației societăților: un Cod al societăților?’, Juridice, 13 April 2018, https://www.juridice.ro/574551/argumente-pentrureforma-legislatiei-societatilor-un-cod-al-societatilor.html. 31 Article 18 of Law no 24/2000. 32 www.cdep.ro and www.senat.ro. 33 Article 7 of Law no 52/2003.

410  Emőd Veress

25.4.  Techniques of Drafting and Publishing: Requirements for a Draft Act (Bill) The proposals of normative acts are drafted in a prescriptive form corresponding to legal norms. By means of expression, the normative act must ensure its provisions are binding. The provisions contained in the normative act may be mandatory, default (complementary to the will of parties in matters where the parties did not expressly intend to depart from the provisions of the law), permissive, alternative, derogatory, optional, transitional and temporary or be in the form of a recommendation. These characteristics of the norm must result expressly from the text of the rules. The legislative text must be worded clearly, fluently and intelligibly, with no syntactical difficulty or obscure or equivocal passages. The use of terms with emotional weight is forbidden. The form and the aesthetics of expression should not be prejudicial to the legal style, accuracy and clarity of the provisions.34 The draft normative act should include legislative solutions for transitory situations if the new regulation affects legal relationships or legal situations that were created under the older rules, but which did not fully exhaust their effects until the date of entry into force of the new regulation. Regulations (except for normative administrative acts issued at the local level) are published in the Official Gazette of Romania, which dates back to 1832. According to Law no 202/1998, the electronic version of the Official Gazette can be accessed free of charge on the internet for 10 days following publication.35 The Official Gazette does not consolidate the legislation except for official re-publications. However, as noted above, the consolidated legislation of Romania is available free of charge through the website of the Ministry of Justice (but only since November 2014, when the programme to make these texts available was launched based on financing from the European Social Fund).36 Translation into foreign languages is sporadic and not up to date.

25.5.  Ex Ante and Ex Post RIA and the Impact of European Legislation Law no 24/2000 on the rules of legislative technique for the elaboration of normative acts also contains important rules on the preliminary (ex ante) impact assessment of new regulations. This set of norms has been in force since 2007. The elaboration of ex ante regulatory impact assessment (RIA) is not mandatory in the case of legislative initiatives submitted by deputies and senators, as well as those put forward by the citizenry. The concept is that Members of Parliament and citizens do not have the necessary tools to compile an RIA report. Thus, in all cases where the government does

34 Article 8 of Law no 24/2000. 35 Article 19. 36 Private companies also offer several software products to access legislation, with features for consolidating the initial text with all subsequent amendments, as well as providing access to relevant jurisprudence.

Legislation in Romania  411 not want to or cannot carry out the RIA of the new regulations, it will not directly exercise the right of legislative initiative, but will indirectly propose legislation using deputies or senators belonging to the governing party (or parties) as proxies. However, in order to prepare an RIA in the case of legislative initiatives by deputies and senators, as well in the case of citizens’ initiatives, Members of Parliament may ask the government to provide access to the data and information necessary for its implementation. RIA comprises a set of activities and procedures carried out in order to ensure an adequate substantiation of the legislative initiatives. The preliminary impact assessment involves identifying and analysing the economic, social, environmental, legislative and budgetary impacts produced by the proposed regulations.37 Since 2011, draft laws will necessarily be accompanied by a preliminary assessment of the impact of the new regulations on human rights and fundamental freedoms. The preliminary impact assessment is carried out by the initiator of the draft legislation. In the case of complex draft regulatory acts, the impact assessment may be carried out on the basis of a service contract by scientific research institutes, universities, commercial companies or non-governmental organisations in accordance with the legal provisions in force concerning public procurement. According to Law no 24/2000, the draft proposals must be accompanied by presentation and motivation documents, such as a statement of reasons, substantiation notes, approval reports and impact studies. The presentation and motivation document includes the content of the impact assessment of the regulatory acts, which comprises the following sections: the reason for issuing the normative act, its social impact, its economic impact, its financial impact, its influence on the legal system, consultations for drafting the normative act, public consultations and implementing measures. However, in practice, the presentation and motivation documents very rarely achieve the degree of detail, accuracy, complexity, scientific rigour, attachment to reality and critical spirit necessary for a genuine assessment. The presentation and motivation document must include references to the opinion of the Legislative Council and, as the case may be, of the Supreme Council of National Defence,38 the Court of Audit or the Economic and Social Council. The purpose of the impact assessment is to estimate the economic and social costs and benefits of adopting the draft law, as well as to highlight the difficulties that could arise in the implementation of proposed regulations. The impact assessment is usually prepared by the specialised structures of the central public administration at the request of the government. For legislative proposals initiated by deputies or senators, impact studies are drafted by the line ministries at the request of the parliamentary committees. The draft normative act must be correlated with EU norms and international treaties to which Romania is a party. Also, the draft normative act must be correlated with the 37 Article 1(2) of Law no 24/2000. 38 The request for such an opinion is mandatory. For example, the Constitutional Court found the Law on ensuring a high common level of security of networks and information systems to be unconstitutional (­decision no 455/2018). The Court held that in the legislative procedure, this opinion is mandatory according to Law no 415/2002 on the organisation and functioning of the Supreme Council of National Defence, according to which one of the tasks of this Supreme Council is to issue an opinion on the draft normative acts initiated or issued by the government on, inter alia, national security. Thus, the Constitutional Court held that the normative act was adopted in violation of the constitutional provisions enshrining the principle of legality.

412  Emőd Veress provisions of the European Convention on Human Rights and its additional Protocols, ratified by Romania, as well as with the jurisprudence of the European Court of Human Rights. In the case of normative acts which transpose EU norms directly into national law, a statement shall be made after their enactment, containing the elements of identification of the EU norm which has been implemented. In cases where the EU norm is only partially transposed, the stipulation must specify in detail the texts (sections, articles or paragraphs, as appropriate) transposed. Ex post RIA is sporadic and mainly takes the form of impact assessment for new legislation that has the purpose of modifying existing regulation. Perhaps a new structure at the government or Legislative Council level could deal with regular reviews of existing regulation.

25.6.  Legislative Drafting and Training the Lawyers Drafting Legislation In order to achieve the necessary coherence and systematisation, in practice Law no 24/2000 contains a ‘guidebook’ for legislative drafting.39 Actually, it is more than a simple guidebook in the case of regulations adopted by the authorities belonging to the executive branch of power. In the case of normative administrative acts (including government decisions), the conformity of the norms with the provisions of Law no 24/2000 practically represents a criterion of legality for the concerned normative administrative acts and is subject to judicial review. In case of parliamentary acts, the violation of the norms on ­legislative drafting may run contrary to the Constitution itself. The Constitutional Court found that an unclear, imprecise and unpredictable law enacted by the Parliament violates the rule of law principle of the Constitution, and the reason for unconstitutionality can also be the violation of fundamental values or fundamental rights by the use of an inappropriate legislative technique.40 In a recent case that was subject to the analysis of the Constitutional Court in January 2019, it was stated by the President of Romania, that: [T]he law subject to constitutional review [a law to amend Law no 35/1997 regarding the Romanian ombudsman, the People’s Advocate (Avocatul Poporului)] is, by its regulatory object, of a special complexity … It can be seen that out of the 61 articles that make up the structure of Law no. 35/1997 in its present form, 41 of its articles were amended and supplemented by the law subject to constitutional control … Therefore, the criticised law concerns the modification and completion of most of Law no. 35/1997 … Considering the provisions of … Law no. 24/2000 … regarding the substantive conditions for amending and completing the normative acts, it follows that Law no. 35/1997 on the organisation and functioning of the People’s Advocate ­Institution should have been superseded by a new regulation to be repealed altogether. ­Therefore, the ­provisions of the criticised law contravene the norms of legislative drafting and therefore disregard the principle of the quality of the law stipulated by the constitutional provisions.



39 Especially 40 Decision

arts 35–71 of Law no 24/2000. no 1/2012; Decision no 22/2016.

Legislation in Romania  413 The law was found unconstitutional, but for different reasons than those given above. The Constitutional Court stated that it is not enough to prove the breach of Law no 24/2000; this breach must also lead to a breach of the Constitution.41 Although the number of decisions finding the unconstitutionality of laws42 or the illegality of administrative ­normative acts due to the breach of the rules of legislative drafting is not particularly high, there is currently a realistic chance of obtaining a favourable judgment if these rules have been clearly and seriously violated. Regarding the training of lawyers for drafting laws, only a few law faculties introduced a formal (and often optional) course on legislative technique or codification. Courses of this type were organised, but great efforts will be needed in the future to train real professionals in this specific activity. In most cases, lawyers who possess the necessary skills and capacities, and the necessary talent have perfected themselves in practice and in a self-taught manner. There have been many programmes of international judicial cooperation aimed at improving the legislation in a certain area, which have also resulted in the importing of the necessary capacities and knowledge for drafting legislation at the level of the public administration authorities. At the local government level, there are also very significant differences in the quality of the administrative normative acts also determined by the available human resources. The state in general has a low level of capacity to implement long-term policies; among the different governments, even minimal continuity in programme implementation is lacking and, in general, state activity is characterised by too much incongruity. The provisions of Law no 24/2000 aim for an ideal system of legislative policy, which, if implemented to the fullest degree, could indeed positively influence developments in this field. In fact, there are too many laws, permanent instability in most areas, which is reflected in frequent changes in legislation, vulnerability to crises and still too many areas where the post-socialist reforms have not ended (for example, public administration) or social relationships whose regulation requires renewal (for example, legislation relating to companies).43 All of these factors also affect legislative policy, but there is a permanent development for which the political institutions, the courts and the legal doctrine are constantly striving in order to improve not only certain pieces of legislation, but also the quality of the legal order in general, which, without doubt, requires further re-thinking.

Further Reading AU Gabanyi, ‘Das politische System Rumäniens’ in Wolfgang Ismayr (ed), Die politischen Systeme Osteuropas, 3rd edn (Wiesbaden, VS Verlag für Sozialwissenschaften, 2010) 627–76 41 Decision no 77/2019. 42 An important Constitutional Court decision in this sense is Decision no 1360/2010. 43 Law no 31/1990 on companies, initially coherent and reflecting the state of development of the legal science at the level of 1990, has undergone numerous changes due to the need to adapt to new legal and economic realities, on the one hand, due to the requirements of implementing the European company law directives, on the other hand. However, these changes, which are sometimes insufficiently integrated into the unitary concept of the law, have caused a reduction in the internal consistency of the law. Also, many of the innovative solutions already experienced in other countries have not been implemented, the current regulation being obsolete from many points of view.

414  Emőd Veress I Muraru and ES Tănăsescu, Drept constituțional și instituții politice, vol II, 15th edn (Bucharest, CH Beck, 2017) S Popescu, C Ciora and V Ţăndăreanu, Aspecte practice de tehnică şi evidenţă legislativă (Bucharest, Monitorul Oficial, 2008) B Selejan-Guțan, The Constitution of Romania: A Contextual Analysis (Oxford, Hart Publishing, 2016) A Varga, Constituționalitatea procesului legislativ (Bucharest, Hamangiu, 2007) E Veress, Államfő és kormány a hatalommegosztás rendszerében (Cluj-Napoca, Scientia, 2011) ——. ‘The Governmental System of Romania’ in N Chronowski, T Drinóczi and T  Takács (eds), Governmental Systems of Central and Eastern European States (Warsaw, Wolters Kluwer Polska, 2011) I Vida, Legistică formală. Introducere în tehnica și procedura legislativă (Bucharest, Universul Juridic, 2012)

26 Legislation in Slovakia* MILAN HODÁS

Context The Slovak legal system is a ‘continental’ legal system with remnants from the previous communist legal culture. However, various influences can be noted in its history. Until 1950, Hungarian common law was applicable in the territory of current Slovakia as it was partially codified in the nineteenth century.1 But by its character, this legal order had always belonged to continental law, as it was also formed under the strong influence of Roman law2 (indirectly) and canon law and it has created and transposed legal concepts of continental law (featuring the strong influence of German legal culture). After the establishment of Czechoslovakia in 1918, the legal system applicable on the territory of current Slovak Republic was influenced by the Austrian legal tradition. We are talking about the reception of the Austro-Hungarian legal order.3 Within Czechoslovakia, a common legislative culture (common for Czech and Slovak republic) was built for several decades. After the splitting of Czechoslovakia into an independent Czech Republic and an independent Slovak Republic in 1993, the legal orders of both states again began to show differences. Another strong influence on the Slovak legal order was the fall of the Iron Curtain and subsequent international integration (especially into the EU and NATO). After the breakdown of the socialist regimes, Eastern Europe had to face a significant scarcity of legal rules in many fields of law. The necessary democratic transition required new norms and institutions, democratic procedures engaging public into the law-making. The Slovak Republic was not an exemption. The ambition of the Slovak Republic to join the EU was linked to the signing of the European Agreement on Association in 1993, which entered into force in February 1995. Slovakia presented its EU membership application in June 1995 at the Cannes Council. On 30 March 1998, the EU accession process was formally launched by a meeting of the Ministers for Foreign Affairs of the 15 EU Member States, the 10 Central and East European applicant states and Cyprus. The accession negotiations with Slovakia were successfully concluded on 13 December 2002 and the Treaty of Accession was signed on 16 April 2003. In a referendum held on 16–17 May 2003, a majority of Slovaks expressed their support for membership of the EU. Slovakia joined the EU on 1 May 2004. * This chapter is the result of project GAČR ‘Odhalování temného koutu legislativního procesu: Příprava návrhů zákonů exekutivou’, reg. č. 17-03806S. 1 See K Malý and F Sivák, Dejiny štátu a práva v Československu do roku 1918 (Bratislava, Obzor, 1992) 338–43. 2 ibid 124. 3 F Sivák, Slovenské a České dejiny štátu a práva v rokoch 1918–1945 (Bratislava, Univerzita Komenského, 1998) 113.

416  Milan Hodás

26.1.  Hierarchy of Legal Norms Parliament is the only constitutional and legislative body in the Slovak Republic (see Article 72 of the Constitution). The results of the legislative work of the Parliament are the Constitution, constitutional laws and laws (bills) – primary legislation. According to Article 120 of the Constitution, the government is entitled to adopt government regulations for approximation (semi-primary legislation) and government regulations (secondary legislation). The role of government regulations is to implement the law passed by the Parliament. No further authorisation by law is required for this legislative activity. The task for government regulations for approximation is the transposition of the directives of the EU. Another type of legislation adopted in Slovakia at the executive level is legislation adopted by ministries and other central state bodies – implementing legislation (secondary legislation). The adoption of implementing legislation (secondary law-making) is governed by Article 123 of the Constitution, according to which ministries and other state administration bodies may, on the basis of laws and within their limits, issue generally binding legal regulations, provided they are empowered to do so by law. Pursuant to section 37 of Act No 575/2001 Coll on the Organisation of the Activity of the Government and on the Organisation of the Central State Administration as amended, ministries and other central state administration bodies are responsible for the proper legal regulation of matters falling within their competence. Thus, they have a legal obligation to prepare bills and other generally binding legal regulations, to publish them and to submit them to the government after the discussion in the Interdepartmental Comments Procedure. Pursuant to section 38 of Act No 575/2001 Coll, ministries and other central state administration bodies have an obligation to use the knowledge of public institutions, scientific institutions, research institutions and professional and trade organisations, and to engage them in the work of dealing with issues of a conceptual and legislative nature. These generally binding legal acts shall be promulgated in a manner laid down by law. At present, the law establishes the Collection of Laws of the Slovak Republic as a publication medium of legal regulations, which is published in electronic and paper form and is issued by the Ministry of Justice of the Slovak Republic. In terms of the levels of legal force, legislation in Slovakia may be hierarchically arranged as follows: at the top of the pyramid is the Constitution and constitutional laws, at the next level are laws adopted by the Parliament and generally binding regulations of municipalities and higher territorial units adopted in matters of territorial self-government, while at the lower level are government regulations for approximation with EU law and even lower are (simple) government regulations followed by legal acts adopted by central government bodies: • Primary legislation (laws): –– the Constitution4 and constitutional laws; –– laws (adopted by the Parliament); –– generally binding regulations of municipalities and higher territorial units issued (self-governing units/authorities) in matters of territorial self-government. 4 In decision PL ÚS 21/2014 of 30 January 2019, the Constitutional Court of the Slovak Republic for the first time abolished the constitutional law for contradiction with the implicit material core of the Constitution of the Slovak Republic (until that decision, the Constitutional Court was not authorised to rule on constitutional laws).

Legislation in Slovakia  417 • Semi-primary legislation: –– government regulations for approximation with EU law. • Secondary legislation (subordinate legislation): –– government regulations; –– legal acts of central government bodies and legal acts adopted by the National Bank of the Slovak Republic; –– generally binding regulations of municipalities and higher territorial units issued (self-governing units/authorities) in matters of transferred state administration performance; –– normative contracts (collective agreements).

26.2.  Education and Training of Law-Making Officials The quality of law-making is closely linked to the adequate training and education of lawmaking staff. At the Faculty of Law at Comenius University in Bratislava, a course is taught on the theory and practice of law-making. This course offers students a theoretical overview of the legislative process, legislative technique and the structure of the legal order of the Slovak Republic, as well as practical skills. Part of the course is a simulated session of the Constitutional Committee of the National Council of the Slovak Republic (hereinafter ‘National Council’). The Government Office organises an annual meeting of legislators from a wide range of central government authorities and legislators from the Chancellery of the National Council of the Slovak Republic, the Chancellery of the President etc. At this meeting, the current issues of law-making are discussed and practical experiences are exchanged. Representatives of ‘opinion-forming’ legislative units, i.e. the Legislative Unit from the Government Office and Legislative Unit of the Chancellery of the National Council point to the most common mistakes in law-making. In 2011, a methodological guide for law-making was issued by the legislative staff of the Government Office. This handbook has been developed within the National Project Education of Legislative Employees – Training and the Development of Legislative Skills in the Creation of Legislation for the National Level of the Slovak Republic. The project was funded by the European Social Fund and ran once in 2011. There is no systematic training of legislators now. In practice, a law-making course or a specialised education is not required for officials dealing with law-making. In legal departments of the Government Office and the Office of the National Council, legal education for law-making employees is required. In another central state bodies also employees without legal education prepare draft laws. These employees without legal education usually have a very good understanding of the relevant material area of law-making, but do not understand specific legal and constitutional connotations. In practice, the state authorities are

From this it can be deduced that some parts of the Constitution (the material core) have more legal force than constitutional laws.

418  Milan Hodás creating new legislators through the informal training of employees by more experienced colleagues. In general, there is a significant lack of quality staff with law-making skills.

26.3.  The Main Legislative Institutions and the Basic Legal Framework for Law-Making Most law-making in the Slovak Republic takes place at the executive level. When writing about law-making at the executive level, we have to mention Act No 575/2001 Coll on the Organisation of the Activity of the Government and on the Organisation of the Central State Administration as amended. These Acts set out the basic characteristics of the government’s activities. The governmental sessions are not public; however, this does not affect the government’s duty to inform pursuant to special regulations – for example, publishing legislative materials. This Act stipulates that tasks connected with the professional, organisational and technical provisions of the government’s activities are performed by the Office of the Government of the Slovak Republic; the same tasks are fulfilled by the Office of the Government of the Slovak Republic for the Prime Minister of the Slovak Republic as his executive body. Other provisions contain the definition of the competences of individual ministries or central state administration bodies.

26.3.1.  Legislative Planning The government starts the legislative process and amends laws according to the annual plan of legislative tasks of the government. This plan is based on the four-year legislative framework of the government, the basis for which is the government programme statement (Government Manifesto), as a result of election promises, coalition agreements5 etc6 necessary for the vote of confidence. A prepared draft of the Annual Legislative Plan and the Framework Legislative Plan is published on the Web portal (www.slov-lex.sk) so that the public and the state administration can make comments as part of the public consultation procedure. When approved by the government, the Framework Legislative Plan and the Annual Legislative Plan are published on the government’s website (www.vlada.gov.sk), thus making it accessible to the public, stakeholders, public administration bodies and Parliament. The Annual Legislative Plan contains the following information on a specific draft bill or other generally binding legislative instruments: • • • •

the number of the legislative task; the title of the bill to be proposed; the ministry/central state body responsible for drafting it; the deadline for submission of the draft.

5 The proportional electoral system, which is applied in the Slovak Republic in parliamentary elections, traditionally creates the necessity of coalition governments. 6 The government’s programme statement (Government Manifesto) is usually very vague and contains general steps rather than concrete legislative obligations and concrete dates as to when these will be fulfilled.

Legislation in Slovakia  419 However, legislative practice shows that a large part of the legislation is adopted outside of the Legislative Plan and that the Legislative Plan is not followed exactly. Ministers can also request the government to cancel the duty to prepare specific draft bill that is included in the Annual Legislative Plan. In some cases, the legislative intent, which has to be prepared and approved, precedes the drafting of a bill or potential legislative amendment. The legislative intent analyses the impact of the legislative change in cases of bills or laws with an anticipated strong economic and financial impact, if it is completely new bill or a draft bill substantially amending existing bill, or if the government so decides.7

26.3.2.  The Legislative Portal and Comments Procedure An important legal standard laying down the requirements that generally binding legal regulations must meet is Act No 400/2015 Coll on the Creation of Legal Regulations and on the Collection of Laws of the Slovak Republic, as amended. This Act determines the material and procedural aspects for the creation of generally binding legal regulations. For instance, it is stipulated that the creation of a draft of a generally binding legal regulation and its requirements8 takes place at the designated legislation portal. The portal is part of the ‘Slov-Lex’ public administration information system, which is administered and operated by the Ministry of Justice of the Slovak Republic. Part of this Web portal is a legislative editor through which legislative processes should be carried out. However, the use of the Web portal is often not optimal for subjective reasons, such as an unwillingness to change procedures for the preparation of legislative materials or the turnover of legislators and thus a continued need to train new employees.9 At the government level, the impact of the draft bill on the general government budget, impacts on the business environment, social impacts, environmental impacts, impacts on the informatisation of society and the impacts on public administration services for the citizen are assessed. An important part of law-making in the Slovak Republic involves interactions with the public and public administration bodies, which did not immediately participate in the drafting of a generally binding legal regulation, the so-called preliminary information and the Interdepartmental Comments Procedure. Prior to launching the drafting of a generally binding legal regulation, in order to inform the public and the public administration bodies, the proposer publishes the preliminary information on the draft of a generally binding legal regulation that is being prepared on the portal. In the preliminary information, the proposer briefly outlines the fundamental aims and the theoretical background of the draft 7 See art 11 of the Legislative Rules of the Government of the Slovak Republic (approved by resolution of the Government of the Slovak Republic of 4 May 2016 no 164, as amended by the resolution of the Government of the Slovak Republic of 28 September 2016 no 441 and resolution of the Slovak government of the Republic of 23 May 2018 no 251). 8 That is, a statement of legislative intent, an explanatory statement, clauses of selected impacts and analysis of impact, a report on public participation in creating the legislation, a compliance clause and table of compliance of the generally binding legal regulation with the EU Law, a draft of an implementing provision and an informative consolidated text. 9 See also, for example, J Svák and B Balog, ‘Legislatívna kultúra’ (2018) 4 Právny obzor 345, 358–59.

420  Milan Hodás of a generally binding legal regulation that is being prepared, the assessment of the current situation and the expected date of commencement of the Interdepartmental Comments Procedure.10 As was suggested earlier, the draft is subsequently published on the portal for the Interdepartmental Comments Procedure. The Interdepartmental Comments Procedure on the draft is carried out on the portal in a way that ensures that the public are able to comment on the draft. Only proposals to amend draft laws which are exercised within the given timeframe and are unambiguously formulated and justified can be considered as a comment on the draft legal regulation. New text can be proposed or modification, adding, changing, deleting or refining the original text can be made in a comment. Reasoned proposals that do not include a proposal for a new text or a recommendation for modification to the text can also be considered as a comment if they contain specific reservations on the text of the draft or the way how to eliminate the alleged shortcomings of the text of the draft, can also be considered as a comment. Initiatives which do not meet the requirements given above do not have to be taken into account by the proposer. A refusal to accept a fundamental comment, which was made by the so-called ‘compulsory commentators’ (a ministry, a central state administration body etc) or a refusal to accept a Collective Comment leads to the so-called ‘dispute settling procedure’. The dispute settling procedure with a public representative may take place if the proposer refuses to accept a comment made by a larger number of people from the public and a public representative’s authorisation to represent the public forms part of the comment (hereinafter ‘Collective Comment’). The dispute settling procedure with a public representative must always take place if the proposer refuses to accept a Collective Comment of at least 500 people. If a Collective Comment was submitted electronically through the portal, the list of people who agreed with the Collective Comment may be sent to the proposer in any manner other than by the portal.11 Further details on the dispute settling procedure are given in the Legislative Directive of the Government of the Slovak Republic approved by the Resolution of the Government of the Slovak Republic No 164 of 4 May 2016, as amended by the Resolution of the Government of the Slovak Republic No 441 of 28 September 2016 and the Resolution of the Government of the Slovak Republic No 251 of 23 May 2018. The Legislative Directive of the Government includes legislative and technical requirements for generally binding legal regulations. In relation to the Interdepartmental Comments Procedure, the Legislative Directive of the Government stipulates that in addition to publication on the commentary portal, the proposer must also send an electronic notice of publication of the draft to the so-called ‘compulsory commentators’: • Deputy Prime Ministers, ministries and other central state administration bodies. • The Office of the Government of the Slovak Republic – Section of Government Legislation. • The National Bank of Slovakia.

10 See s 9 of Act No 400/2015 Coll on the Creation of Legal Regulations and on the Collection of Laws of the Slovak Republic, as amended. 11 See s 10 of Act No 400/2015 Coll on the Creation of Legal Regulations and on the Collection of Laws of the Slovak Republic, as amended.

Legislation in Slovakia  421 • • • •

The Supreme Audit Office of the Slovak Republic. The Supreme Court of the Slovak Republic. The General Prosecutor’s Office of the Slovak Republic. Representatives of employers and of employees12 in the case of a bill concerning economic and social interests, as well as other bodies and institutions, as provided for in a special regulation or designated by the government.13

The Interdepartmental Comments Procedure to a draft of a generally binding legal regulation is also carried out with higher territorial units, the Association of Self-Governing Regions (SK 8,) the Association of Towns and Communities of Slovakia, the Union of Towns and Cities of Slovakia, the Capital City of the Slovak Republic – Bratislava, cities that are the seat of the Region and bodies and institutions charged with tasks related to or concerned with the topic of the draft. This interdepartmental comments procedure must be carried out before the proposal is submitted to the government.14 The proposer may also send a notice of publication of the draft to other state bodies, local government authorities, professional organisations and other institutions.15 The notice of publication of the draft includes the title of the draft, the material number, the start and the end date of the Interdepartmental Comments Procedure, the deadline for the submission of comments, the link to the exact location of the material on the portal and the email address to which comments may be sent if the portal is unavailable. The deadline for the submission of comments is 15 working days if the proposer does not specify a longer period; the submission period starts from the first date of publication of the draft on the portal. If the commenting body or institution fails to send the comments within the specified timeframe, it is considered that it has no objections.16 In exceptional circumstances (in particular, where there is a threat to human rights and fundamental freedoms or the safety of citizens, or a threat of significant financial damage to the state, or in the event of the declaration of a state of emergency or a state of crisis in order to resolve the crisis situation), if there is a risk of non-fulfilment of the obligations arising from the Treaty of Accession of the Slovak Republic to the EU by failing to meet the deadline for the transposition of an EU directive, the implementation of a regulation or decision of the EU, or if it concerns a draft submitted outside the plan of legislative tasks of the government due to its urgency within a deadline that does not make it possible to comply with a 15-day deadline, the Interdepartmental Comments Procedure may take place in an abridged commenting process. In this case, the deadline for the submission of comments is set by the proposer; however, this deadline shall not be less than seven working days and shall start from the day of publication of the draft on the portal.17 The threat of non-fulfilment of the obligations arising from the Treaty of Accession of the Slovak Republic to the EU by failing to comply with the deadline for the transposition

12 See s 3 of Act No 103/2007 Coll on Tripartite Consultations at the National Level and to Amend and Supplement Certain Acts (Tripartite Act). 13 See art 13(2) of the Legislative Directive of the Government of the Slovak Republic. 14 See ibid art 13(3). 15 See ibid art 13(4). 16 See ibid art 13(6). 17 See ibid art 13(7).

422  Milan Hodás of an EU directive, the implementation of a regulation or a decision of the EU may be used as a justification for a shorter Interdepartmental Comments Procedure only if, within the time limit specified for the transposition of an EU directive, the implementation of a regulation or decision of the EU, it was not possible due to this deadline to conduct an Interdepartmental Comments Procedure within 15 days.18 A practical problem of the Interdepartmental Comments Procedure appears to be the failure to observe the deadline for the submission of comments. Proposers often fail to comply with the set deadline for introducing materials or use time periods when there is an assumption that the material will not receive attention from the public (summer holidays, Christmas holidays etc).

26.3.3.  Legislative Council of the Government The quality of government draft laws is improved by the activity of the Legislative Council of the Government. The Legislative Council of the Government is a permanent advisory and coordinating body of the government in the legislative field. The legal basis for its existence is Act No 575/2001 Coll on the Organisation of the Activity of the Government and on the Organisation of the Central State Administration as amended.19 The Legislative Council of the Government is composed of experienced lawyers appointed by the government. Meetings of the Legislative Council are chaired by the Minister of Justice. The Legislative Council mainly: • discusses the draft of the plan of the legislative tasks of the government, which is usually drawn up annually; • coordinates and directs the activities of the ministries and other central state administration bodies concerning the preparation of the draft laws and drafts of government regulations; • discusses and assesses drafts of constitutional laws, laws, government regulations, drafts with legislative intentions, parliamentary draft laws if the President of the National Council of the Slovak Republic requests the government for its position on these drafts and drafts of international treaties which have primacy over domestic laws; • accepts positions at the governmental session on drafts of constitutional laws, laws, government regulations, drafts with legislative intentions and parliamentary draft laws if the President of the National Council of the Slovak Republic asks the government for its position on these drafts and drafts of international treaties which have primacy over domestic laws; • assesses the compliance of discussed draft laws, drafts of government regulations and draft legislative intentions with EU law, the Conventions of the Council of Europe and international treaties to which the Slovak Republic is a signatory;

18 See ibid art 13(8). 19 See § 2(3) of Act No 575/2001 Coll on the Organization of the Activity of the Government and on the Organisation of the Central State Administration as amended.

Legislation in Slovakia  423 • at the request of the proposer of a draft law or draft of government regulation, accepts positions at the governmental session on legal contradictions if these contradictions were not eliminated during the Interdepartmental Comments Procedure; • takes a final position if the proposer of the draft of an ordinance, decree or measure does not agree with the position of the Permanent Working Committee of the Legislative Council in relation to the draft.20

26.3.4.  The Government Office The Government Office of the Slovak Republic plays a key role in legislative planning and law-making. The Office is a central state administration body.21 Civil servants from the unit of government legislation of the Office of the Government of the Slovak Republic assist the meetings of the Legislative Council of the Government. The Government Office of the Slovak Republic participates in the preparation of the draft Government Manifesto (programme) and prepares the draft work plan and the draft legislation plan of the government. The whole process starts with the letter drafted in the Government Office and signed by the Deputy Prime Minister for Legislation inviting ministries and other central bodies to submit their proposals for the content of the legislative plan. The Government Office also summarises the comments and draws up the final draft legislative plan. The Government Office checks the performance of tasks resulting from legislative plans and informs the government. The Statute of the Government Office22 of the Slovak Republic stipulates that the Office shall check the performance of all tasks laid down by government resolutions and other government measures (thus law-making duties as well) by central and other state administration bodies and shall notify the Prime Minister and the Deputy Prime Ministers of any deficiencies that it identifies and any proposals to correct such deficiencies.

26.3.5.  The Legislative Process in Parliament The main legislative authority in Slovakia is ‘Národná rada Slovenskej republiky’ (National Council of the Slovak Republic), the unicameral Parliament composed of 150 Members of Parliament (MPs) elected for a four-year term. They execute their mandate personally according to their conscience and conviction and are not bound by orders,23 but in the legislative process, the application of often strong party discipline can be observed. As mentioned above, the National Council shall consider and approve the Constitution, constitutional statutes and other laws.24 It has a quorum if more than one-half of all MPs

20 See s 3 of the Resolution of the Government of the Slovak Republic No 620 of 7 November 2012. 21 The legal basis for its existence is § 1b of Act No 575/2001 Coll on the Organisation of the Activity of the Government and on the Organisation of the Central State Administration as amended. 22 Adopted by the Resolution of the Government of the Slovak Republic of 12 December 2018, No 573. 23 Slovak Constitution, art 73(2). English translation available at: www.ipex.eu/IPEXL-WEB/parliaments/ institution/skrad.do. 24 ibid art 86, a).

424  Milan Hodás are present.25 In order for an act to be adopted, a simple majority of the present MPs is required.26 The agreement of at least a three-fifths majority of all MPs is required to pass and amend the Constitution and constitutional laws.27 A draft law may be introduced by the committees of the National Council, MPs and the government.28 The legislative process in Parliament is divided into three readings. The detailed provisions of the debate, the three readings and the voting on draft bills and other parliamentary procedural questions are governed by Act No 350/1996 Coll on the Parliamentary Rules of Procedure.29 The draft bill is posted on the website of the National Council at least 15 days prior to the session of the National Council during which the bill is to be presented for the first reading.30 The Speaker of the National Council proposes that the National Council refers the bill for obligatory consideration by the Constitutional and Legal Affairs Committee and, depending on the nature of the bill, to other committees. At the same time, the Speaker proposes a lead committee responsible for the deliberation of that bill.31 During the first reading, the draft bill is introduced by the sponsor, followed by the rapporteur designated by the lead committee.32 The bill and its merits are discussed in a general debate, in which no amendments shall be proposed. The National Council may resolve to refer the bill back to the sponsor for further elaboration, to discontinue further discussion on the bill or to refer the bill to the second reading.33 The second reading on the draft bill is carried out in committees and in the plenary. If the National Council has resolved that the draft bill shall be discussed in the second reading, the Speaker of the National Council delivers it to the government, requesting it to submit its position within 30 days (this is applicable to motions tabled by MPs and committees).34 Preventive control of constitutionality (control of constitutionality before the bill is adopted) of the draft bill is also exercised by the Constitutional and Legal Affairs Committee in the second reading. In this way, all proposed bills must be checked.35 However, it should be borne in mind that this control is influenced by the political composition of the committee. Nevertheless, the professional side is not completely neglected because the political parties try to nominate members with legal education for this committee. A bill introduced by the government is explained in a committee by a member of the government or by the head of a central state administration authority authorised by the government. Other authorised persons may do so only with the consent of the committee. A bill introduced by a committee or by a group of MPs is justified by a duly authorised MP, and in the case of an MP’s bill is justified by the sponsor.36 During the second reading, it is already possible to table amendments to the draft bill. An amendment can even be tabled during the committee sitting by a single MP. The second

25 ibid

art 84(1). art 84(2). 27 ibid art 84(4). 28 ibid art 87(1). 29 English translation available at: www.ipex.eu/IPEXL-WEB/parliaments/institution/skrad.do. 30 See § 72(1) of the Rules of Procedure of the National Council of the Slovak Republic. 31 ibid § 71. 32 ibid § 73(1). 33 ibid § 73(3). 34 ibid § 70(2). 35 ibid § 59, b). 36 ibid § 76. 26 ibid

Legislation in Slovakia  425 reading is often used by the government to amend the draft bill originally tabled by the government through supportive MPs (the government is not entitled to amend the draft bill once it enters the law-making procedure in Parliament). During the second reading, the original draft bill can be substantially re-drafted. The committee’s deliberations are followed by a plenary debate. The Committee submits to the National Council (plenary) the results of the discussions during the second reading.37 When the bill has been discussed by several committees, a joint written report prepared by the lead committee is presented to the National Council. The committees’ joint report on the results of the debate is delivered to the sponsor and all MPs and is posted on the website of the National Council. Amendments to the bill can be proposed with the consent of at least 15 MPs during the second reading in plenary.38 The consent of an MP shall be expressed by his or her signature to a written justified amendment. Proposed amendments are posted on the National Council’s website.39 The second reading is followed by a third reading. The third reading is limited solely to those parts of the bill to which amendments were proposed during the second reading.40 During the third reading, MPs may only propose corrections for linguistic and legislativetechnical mistakes.41 Other amendments aimed at correcting other mistakes and a proposal to repeat the second reading may be put forward by at least 30 MPs.42 The vote on the bill as a whole is taken at the end. The approved bill is delivered to the President by the Chancellery of the National Council.

26.3.6.  The Presidential Veto The President may return any laws with comments to the National Council within 15 days of delivery of the approved law (relative veto – this can be overridden by the Parliament).43 If the President returns an act with comments, the National Council will discuss the returned law again. In the event of its approval, such a law must be promulgated.44 The approved bill is signed by the President, the Speaker of the National Council and the Prime Minister. If the National Council, after having discussed the law again, approves the law despite the comments of the President, and the President does not sign the law, the law is nevertheless promulgated, even without the signature of the President.45

26.3.7.  Promulgation of Laws A law becomes valid upon its promulgation.46 The only authentic version of Slovak legislation is that given in the Slovak language.47 Some acts are officially translated into languages of

37 ibid

§ 78. § 82(2). 39 ibid § 82(2). 40 ibid § 85(1). 41 ibid 85(2). 42 ibid 85(3). 43 Slovak Constitution, art 102(1), point o). 44 ibid art 87(2). 45 ibid art 87(3). 46 ibid art 87(4). 47 § 3 (1) of Act No 400/2015 Coll on Law-Making and on the Collection of Laws of the Slovak Republic. 38 ibid

426  Milan Hodás national minorities. Translations are available in Hungarian, Roma, Ukrainian, Russian and German.48 Promulgation of the legislation is provided by the Ministry of Justice. Legislation is promulgated in the Collection of Laws of the Slovak Republic (Zbierka zákonov Slovenskej republiky) in electronic form and in paper form. The electronic form of the legislation is available through ‘Slov-Lex’ – Legislation and Information Portal run by the Ministry of Justice of the Slovak Republic which provides professionals and the general public with electronic access to applicable law and all the relevant information regarding law. This electronic collection of laws was launched in 2015, before which only the printed version of the Collection of Laws was used. The Ministry of Justice ran a free online system (JASPI), on which consolidated non-authentic versions of legislation were available before 2015. Laws enter into force on the fifteenth day following their publication in the Collection of Laws. Usually, however, a specific date of entry into force is specified in the relevant law. Two steps/stages follow from the principle of legal certainty: the law is valid upon promulgation and comes into force following publication.

26.3.8.  The Success of the Legislative Initiative While a single MP can initiate a legislative process and submit a bill, as in most modern democracies, the government usually dominates the successful legislative initiative. Bills introduced by the government account for more than 80 per cent of all bills successfully passed by the Parliament. Research from 2007 shows that more than 50 per cent of bills introduced into Parliament were outside the legislative programme.49 Approximately 15 per cent of bills passed by Parliament were tabled by the MPs or committees. Bills tabled by the MPs or committees are usually not envisaged by legislative programmes, with the exception of some bills tabled by coalition MPs which are in fact prepared by the government.

26.3.9.  The Constitutional Court The Constitutional Court acts as a negative law-maker in the law-making system of the Slovak Republic. It decides on the compatibility of laws, government regulations etc with the Constitution, constitutional laws and international treaties.50 It does not decide on the compliance of draft laws with the Constitution. The constitutionality of draft laws cannot be challenged in the Constitutional Court before the bill is enacted. The so-called preventive control of constitutionality is possible only in the case of negotiated international treaties or in the case referendums (ex ante control of referendum issues).51 The powers are regulated by Articles 124–40 of the Constitution, while details on the organisation of the

48 Available at: www.slov-lex.sk/pravne-predpisy-v-jazyku-narodnostnych-mensin. 49 R Zubek, KH Goetz and M Lodge, Legislative Planning in Central Europe: Towards Strategic Management of Government Legislation (Warsaw, Sprawne Państwo, 2007), available at: www.ey.com/Publication/vwLUAssets/ Legislative_Planning_in_CE.pdf/$FILE/Legislative_Planning_in_CE.pdf. 50 See Slovak Constitution, art 126. 51 ibid art 125a(1) and 125b(1).

Legislation in Slovakia  427 Constitutional Court, on the proceedings before the Court and on the status of its judges are stipulated in Law No 314/2018 Coll on the Constitutional Court.

26.4.  The Impact of EU Membership on the Legislative Process in the Slovak Republic In relation to law-making in the Slovak Republic, the country’s membership of the EU and its impacts cannot be overlooked. Membership in the EU has influenced the law-making process of the Slovak Republic in several different ways. It is possible to see an impact on the content of legislation, its structure and legislative technique, but also on the law-making process itself. Accession to the EU also affected the constitutional relations between the central state administration bodies and the composition of the constitutional bodies52 and their role, as well as the composition and tasks of the state bodies and their organisational units.53 Ministries and central government bodies have now set up specialised departments to ensure compliance with EU law. At the parliamentary level, the Commission for the Compatibility of Slovak Law with European Law was created in the early 1990s as an initiative and oversight body subordinate to the Constitutional and Legal Affairs Committee of the National Council (Slovak Parliament). An Office of Compatibility was created in the Chancellery of the National Council and was incorporated into the Department for Legislation and Law. In 1996 a Parliamentary Committee on European Integration was established, which was transformed into the European Affairs Committee.54 And last but not least, the Unit for Approximation of Law was established as part of the Legislation and Law Department of the Chancellery of the National Council in 1998. In the pre-accession period, it was necessary to open up the legal order of the Slovak Republic to international integration and thus also to EU law. The constitutional bridge for EU law was created by the so-called euro-amendment of the Constitution of the Slovak Republic in 2001.55 In this way, the current wording of Article 7 of the Constitution was adopted, which reads as follows: The Slovak Republic may, by an international treaty ratified and promulgated in a manner laid down by law, or on the basis of such a treaty, transfer the exercise of a part of its rights to the European Communities and European Union. Legally binding acts of the European Communities and European Union shall have primacy over the laws of the Slovak Republic. The transposition of legally binding acts that require implementation shall be executed by law or a Government regulation pursuant to Article 120, para. 2.

52 In the pre-accession period, the Ombudsman, or the Judicial Council of the Slovak Republic, was enshrined in the Constitution as part of fulfilling the prerequisites for accession to the EU. 53 See also E Láštic, ‘Get the Balance Right: Institutional Change in Slovakia during EU Accession and Membership’ (2006) 6 Sociológia 533. 54 The area of competence of the European Affairs Committee of the National Council of the Slovak Republic is defined by Constitutional Act No 397/2004 Coll on the Cooperation of the National Council of the Slovak Republic and the Government of the Slovak Republic in European Affairs. The composition and status of this committee are regulated by art 58a of the Rules of Procedure of the National Council of the Slovak Republic. 55 See Constitutional Act No 90/2001 Coll, amending the Constitution of the Slovak Republic.

428  Milan Hodás As can be seen from the wording of Article 7, although the effects of EU ‘secondary law’ in the Member States are based upon EU law itself, the authors of the euro-amendment of the Slovak Constitution decided to expressly confirm such effects through a specific provision in Constitution.56 Following the opening up of the national legal order to the effects of EU law, the transposition of EU law into Slovak national law took place. All acts adopted by the EU institutions and the European Central Bank prior to Slovakia’s accession become applicable in the new Member States and were to be published in the Official Journal of the European Union in the new official languages. While the EU institutions took responsibility for the final revision and publication of the translations, it fell to the acceding states to produce the translations and to ensure a thorough legal and linguistic revision.57 This period was associated with problems relating to the timely publication of the Special Edition of the Official Journal in Slovak (Mimoriadne vydanie Úradného vestníka Európskej únie), delayed translations and translation errors, which affected the quality of the transposition of EU law into the national legal order. The multilingualism of law-making creates many problems even today. Some terms in transposed EU law do not correspond to the recognised legal terms used in Slovak law.58 Preparations for membership of the EU were also reflected in the legislative technique. As a mandatory requirement, a clause on compatibility with EU law was introduced into the legislative rules for every draft law. This clause has the task of declaring the degree of compatibility of the proposal with EU law. The transposition of directives and the implementation of regulations are documented in the legislative technique of the Slovak Republic in the so-called transposition Annex. The list of directives transposed or regulations implemented is a mandatory annex to every Act affected by this way by EU law. If a draft law transposes an EU directive into the legal order of the Slovak Republic, it must contain a transposing annex indicating the exact name of a legally binding act and information on its publication in the Official Journal of the European Communities or the Official Journal of the European Union.59 The compliance of the draft legislation with EU law is also secured by conformity tables (which are applicable if transposing directives). In the final provisions of the draft law, a separate paragraph shall include a reference to the transposing annex, which reads as follows: ‘This Act shall take over the legally binding acts of the European Union listed in Annex (No …).’60 The Annex indicating transposition is headed ‘List of Transposed Legally Binding Acts of the European Union’.61

56 J Klučka, ‘The Necessity and Scope of the Constitutional Amendment Required for the Accession of the Slovak Republic to the European Union’ in European Integration and Constitutional Law (Strasbourg, Council of Europe Publishing, 2001) 162. 57 The Central Translation Unit within the Slovak Institute for Approximation of Law as part of the Office of the Government of the Slovak Republic was responsible for the translation of the acquis into the Slovak language. The Central Translation Unit employed 15 persons in 2002. 58 See, eg, L Cisko, ‘Zodpovednosť za vady plnenia v procese rekodifikácie súkromného práva’ in MV Savchyn and MV Mendzhul (eds), Fundamentálne problémy jurisprudencie. Zborník vedeckých prác (Užhorod, Vydavateľstvo Olexandra Harkuša, 2016) 161. 59 See art 4(1) of the Legislative Rules of the Government of the Slovak Republic. 60 ibid art 4(2). 61 ibid art 4(3).

Legislation in Slovakia  429 It was also necessary at a national level to reflect the intra-EU comments procedure associated with the adoption of legal norms that have a technical character.62 In this context, it was necessary to establish a national contact point. The Contact Point for Exchange of Information between the Slovak Republic, the Commission and the other EU Member States is the Central Unit for EU Directive 2015/1535, established at the Office for Standardisation, Metrology and Testing of the Slovak Republic.63 Obligations under EU law require legislative work to be organised in a specific way. EU legal acts usually do not follow the structure of national law and the national division of competencies between ministries and other central state bodies. This means that one EU legal act can affect the law-making activity of other national ministries and central state bodies. This can result in negative competency conflict (no ministry has the ability to undertake the relevant law-making activity) or positive competency conflict (more than one ministry is able to undertake the relevant law-making activity). This is solved by the system of the division of EU-related law-making works at the central level. The Slovak government stipulates on a half-yearly basis which ministry or other central state body will be responsible for the implementation of concrete EU regulations or the transposition of concrete EU directives. If the content of the respective EU legal act affects the activity of more ministries or central state bodies, the government can determine the line ministry and cooperating ministries. The ministry or other central government body, within whose sphere of responsibility the overwhelming extent of the binding (normative) part of the relevant legal act (directives or regulations) lies, is designated as the body responsible for the law-making activity – the line ministry sponsor. The responsible line ministry is responsible for the complete transposition of the EU directive or the implementation of the EU regulation in the form of drafting and submitting a draft legal act of the Slovak Republic, as well as for drawing up the tables of conformity with EU directives. The gestor (the lead ministry or lead central state authority) is entitled to ask other ministries or other central government authorities to cooperate in fulfilling tasks arising from the role of lead authority (drafting the relevant parts of draft legislation etc). The adherence of the ministries and central state bodies to the implementation and transposition deadlines of EU law is controlled by the Government Office of the Slovak Republic and the Slovak government. The threat of sanctions arising from the non-fulfilment of obligations within the set timeframe stemming from EU law is the reason for the shortened legislative procedure, in which the deadlines for comments by the public is not applicable.64 The public can still comment on the draft, but within the shortened timeframe. The impact of EU law on the content of national legislation cannot be overlooked. Robert Zbíral states that its impact on the legal order of the Slovak Republic accounts for approximately 35 per cent of approved legal acts.65 62 System of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services. 63 See the official website of the Office for Standardisation, Metrology and Testing of the Slovak Republic: http:// www.unms.sk. 64 See art 13(8) of the Legislative Rules of the Government of the Slovak Republic. The deadline for submitting comments is normally 15 business days and the sponsor of the draft may specify a longer period. 65 See R Zbrial, ‘Kvantitativní rozbor evropeizace slovenského práva’ (2015) 8–9 Justičná revue 1029.

430  Milan Hodás

26.5.  Government Regulations for Approximation with EU Law A significant part of the law-making process is carried out at the executive level. In the Slovak Republic, law-making at the executive level is primarily regulated by the Constitution, but also by a wide range of legal and sub-legal regulation. Pursuant to Article 120(1) of the Constitution, the government may issue regulations to execute a law within the limits laid down by law. It may also issue government regulations in order to fulfil the obligations arising from EU membership – the so-called ‘approximation government regulations’.66 After the failure to fulfil the Copenhagen Criteria for accession to the EU, Slovakia was behind the other candidate countries in the field of harmonisation of the domestic legal order with the European law. As a consequence, it was clear that Slovakia could not catch up in the transposition deficit by adopting legislation at the parliamentary level. As such, this role was moved to the governmental level and the so-called governmental regulations for transposition of EU law were created. The establishment of this kind of legal act also entailed changes in Slovak Constitution that were adopted in 2001. Approximation regulations of the government are used to transpose EU directives. They are a specific legal instrument used to impose obligations (like bills). This is an exception. Other by-laws may not impose obligations. Approximation regulations are an unusual source of law. They are similar to ‘government regulation with the power of law’, which has a long tradition in Slovakia.67 In comparison to the legislative process in the National Council, the legislative process at the governmental level is shorter, and the approximation regulations allow for a more flexible response to the need for the approximation of the legal order of the Slovak Republic with EU law (the need for the transposition of EU directives). Particularly advantageous in this respect is the use of approximation regulations when transposing technical annexes to directives (various lists of prohibited substances etc). The disadvantage of this is the breach of the traditional concept of the separation of powers by strengthening the law-making competence of the government to the detriment of the law-making competence of the National Council. As mentioned earlier, approximation government regulations are issued on the basis of a constitutional delegation, which is enshrined in Article 120(2) of the Constitution, according to which ‘if so laid down by law, the government is authorized to issue regulations on the implementation of the Europe Agreement establishing an association between the European Communities and their Member States on the one part, and the Slovak Republic on the other part, and on execution of international treaties according to Article 7, paragraph 2’. An example of this is Act No 19/2002 Coll, which lays down the conditions for the issuing of approximation regulations. These conditions are primarily those areas in which the government is authorised to issue approximation regulations, but also the legislative and technical conditions for their issuance. Act No 19/2002 Coll also stipulates the form of parliamentary control of the Government of the Slovak Republic by the NC SR when issuing approximation regulations. This Act stipulates that an approximation regulation of the government 66 On the issue of approximation regulations, see, eg, B Balog, ‘Aproximačné nariadenia vlády Slovenskej republiky’ (2003) 2 Justičná revue: Časopis pre pre právnu prax 125; R Procházka, ‘Niekoľko poznámok k aproximačným nariadeniam’ (2002) 6–7 Justičná revue: Časopis pre právnu prax 722. 67 P Kukliš and M Hodás, ‘O súčasnej situácii v slovenskej právnej normotvorbe’ (2016) 6 Právny obzor 489.

Legislation in Slovakia  431 may only be adopted in the areas of customs law, banking law, accounting and corporate tax, intellectual property, protection of workers in the workplace, financial services, protection of consumers, technical regulations and standards, use of nuclear energy, transport, agriculture, the environment and free movement of workers. The Act also stipulates when the issue cannot be regulated by an approximation regulation, so the importance of the Parliament is secured. Approximation regulations cannot regulate the limits of fundamental rights and freedoms, the state budget and other matters where the Constitution states that they are regulated or shall be regulated by law. Approximation regulations cannot be issued if, following its adoption, a new state body will be created. It is also impossible to set sanctions through approximation regulations.68 The shift of the law-making power from Parliament to the government through approximation regulations weakens Parliament’s constitutional position vis-a-vis the government. Therefore, it was necessary to secure Parliament’s position in this respect by creating a control mechanism focused on the approximation regulations. The National Council exercises control over the government, particularly by approving information on the issued approximation regulations by the government and on the intention to adopt approximation regulations. The duty of the government to inform the National Council on approximation regulations follows directly from Act No 19/2002 Coll as amended, which requires the government to inform the National Council every six months on the issued approximation regulations for the past half-year and on approximation regulations that are intended to be adopted in the following period. An example could be mentioned, the Information on the issued approximation regulations of the Government of the Slovak Republic in the first half of 2018, and on the intention to adopt approximation regulations of the Government of the Slovak Republic in the second half of 2018, delivered to the NC SR 30 July 2018.69 In the first half of 2018, the government adopted 15 approximation regulations and in the second half, it intended to adopt 14 approximation regulations, but only five were adopted. After discussing the information on the issued approximation regulations and the intention to adopt approximation regulations, the National Council may ask the government to submit the proposed legislation as a government bill. However, this power of the Parliament is not used in practice. What seems to be problematic here is the incorporation of approximation government regulations into the hierarchical structure of the organisation of the sources of law. Some authors speak of its semi-primary character.70 According to the explanatory statement to Act No 19/2002 Coll, an approximation regulation has less legal force than bills approved by the Parliament. However, from a community perspective, an approximation regulation transposes the norms contained in directives and EU law takes precedence over national law. Therefore, from an EU perspective, it can be concluded that a transposition measure – the approximation regulation – should have priority over national law. However, this

68 See, eg, Š Grman, ‘Implementation of EU Law in Slovakia, Governmental Regulations Implementing EU Law’ in Implementation of EU Law in the Member States (Prague, Czech Presidency of the Council of the EU 2009) 231; P Rohaľ, ‘Voľba opatrenia na prebratie smernice Európskej únie’ (2017) 2 Forum Iuris Europaenum 86. 69 Parliamentary Press No 1050, https://www.nrsr.sk/web/Default.aspx?sid=zakony/cpt&ZakZborID=13&CisO bdobia=7&ID=1050. 70 See, eg, P Kukliš, ‘Právní normotvorba na Slovensku – vybrané problémy’ in F Cvrček et al (eds), Legislativa, Teoretická východiska a problémy (Plzeň, Aleš Čeněk, 2017) 175.

432  Milan Hodás solution conflicts with the issue of legitimacy of such a strengthened role of the executive in the field of law-making. In view of the above-mentioned problems, legislative practice should approach the use of approximation regulations with caution. However, the reality is often quite different and approximation regulations were often used as a tool to circumvent the legislative process in the Parliament.

Further Reading B Balog, ‘Aproximačné nariadenia vlády Slovenskej republiky’ (2003) 2 Justičná revue: Časopis pre pre právnu prax 125–35 B Balog and L Trellová, ‘Povinnosť parlamentu prijať zákon?’ (2012) Právny obzor 25–43 F Cvrček et al, Legislativa, Teoretická východiska a problémy (Plzeň, Aleš Čeněk, 2017) A Gerloch and A Kysela (eds), Tvorba práva v České republice po vstupu do Evropské unie (Prague, Aspi Wolters Kluwer, 2007) S Grman, ‘Implementation of EU Law in Slovakia, Governmental Regulations Implementing EU Law’ in Implementation of EU Law in the Member States (Prague, Czech Presidency of the Council of the EU, 2009) 228–32 L Hmírová, ‘K tzv. aproximačnej prílohe’ (2004) Justičná revue 38–47 M Hodás, E Panenková M Hogenová M and P Ďurinová, Functions of the National Council of the Slovak Republic in the IV Electoral Period (Bratislava, Chancellery of the National Council of the Slovak Republic, 2018) P Kukliš, ‘Právní normotvorba na Slovensku – vybrané problémy’ in F Cvrček et al (eds), Legislativa, Teoretická východiska a problémy (Plzeň, Aleš Čeněk, 2017) 172–202 P Kukliš and M Hodás, ‘O súčasnej situácii v slovenskej právnej normotvorbe’ (2016) 6 Právny obzor 474–500 E Láštic, ‘Get the Balance Right: Institutional Change in Slovakia during EU Accession and Membership’ (2006) 6, Sociológia 533–45 D Nikodým, ‘Občan a normotvorba’ (1997) 3 Právny obzor 240–44 R Procházka, ‘Niekoľko poznámok k aproximačným nariadeniam’ (2002) 6–7 Justičná revue: Časopis pre právnu prax 722–30 P Rohaľ, ‘Voľba opatrenia na prebratie smernice Európskej únie’ (2017) 2 Forum Iuris Europaenum 83–88 M Rybář, ‘Powered by the State: The Role of Public Resources in Party-Building in Slovakia, Journal of Communist Studies and Transition Politics’ (2006) 2 Political Parties and the State in Post-Communist Europe 320–39 J Svák, Ž Surmajová and B Balog, Act on the Law-Making and on the Collection of Laws of the Slovak Republic: Commentary (Bratislava, Wolters Kluwer, 2017) J Svák and B Balog, ‘Legislatívna kultúra’ (2018) 4 Právny obzor 345–60

27 Legislation in Slovenia POLONCA KOVAČ AND KATERINA FABRIZIO

Context Slovenia has been an independent parliamentary democratic republic since 1991, a member of the European Union (EU) since 2004 and a member of the Organisation for Economic Co-operation and Development (OECD) since 2010. It was previously a part of the former Yugoslavia (1918–91); however, the Slovenian culture and its political and legal systems are closely related to the Austrian continental framework that Slovenia was made part of before 1930. Slovenia can thus be considered a part of the legislature-centred Rechtsstaat circle. Nevertheless, the most recent trends show Slovenian eagerness to follow the OECD guidelines and best practices. Besides legally binding meta-regulation (mainly the parliamentary and governmental rules of procedure), a very important milestone for Better Regulation was the Resolution on Legislative Regulation, adopted in 2009 by the National Assembly. Principles stipulated in the Resolution also apply to an ever-increasing volume of secondary legislation, eg, governmental decrees and ministerial rules. This had led to Slovenia becoming an increasingly regulatory country in which the leading role is de facto played by the executive.

27.1. Introduction Slovenia gained independence in 1991 and became a full EU Member State in 2004. With a population of approximately two million, it is a small and rather homogeneous c­ ountry.1 Pursuant to its Constitution (1991), it is a unitary parliamentary democratic republic governed by the rule of law.2 Once an autonomous republic of the former Yugoslavia (1945–91), Slovenia developed its legislation under a predominantly German and Austrian influence, reflecting central continental Rechtsstaat characteristics.3 Slovenia is a civil law 1 See also, especially comparatively within the region, P Kovač and M Bileišis (eds), Public Administration Reforms in Eastern European Union Member States: Post-accession Convergence and Divergence (Vilnius and Ljubljana, Mykolas Romeris University and University of Ljubljana, Faculty of Administration, 2017) 302ff. In addition to being a member of the EU, the OECD, the Schengen Area and the eurozone (2007), Slovenia is a member of the United Nations (1992) and the Council of Europe (1994). 2 Ustava RS, Official Gazette of the Republic of Slovenia (OGRS), No 33/91-I, 42/97, 66/00, 24/03, 69/04, 68/06, 47/13 and 75/16. 3 cf C Harlow and R Rawlings, Law and Administration (London, Butterworths, 1997).

434  Polonca Kovač and Katerina Fabrizio country, meaning that statutory law plays an exclusive role, with case law having no impact. Pursuant to the Constitution (Articles 87, 121, 140, 153 and 160), binding sources of law include EU law, acts of the national legislature and executive governmental, ministerial, municipal and other general acts. The National Assembly adopts laws (primary legislation), while secondary legislative acts are mainly adopted by the government, ministries, municipal councils and other regulatory agencies (ie, secondary, executive, delegated and subsidiary legislation). Judicial review of hierarchical conformity is provided by the Constitutional Court for any level of legislation. One of the main particularities in Slovenia is its two-tier authority system, with the state authority on one side and municipal authority on the other, where local community regulations do not need to comply with governmental or ministerial legislation. Furthermore, there are recurrent dilemmas in both theory and practice about the legal nature of what are known as ‘general acts issued for the exercise of public authority’.4 This is due in particular to the huge number of over 20,000 regulations along with 800 laws at the national level. In addition to the Constitution, several legal acts, policy papers and manuals have recently been enacted to regulate or promote better/smart regulation efforts (known as meta-regulation). The most important legislative acts are the Rules of Procedure of the National Assembly (RNA) for statutory laws and the Rules of Procedure of the Government (RG) for governmental decrees and ministerial rules as mainly sector-specific secondary legislation.5 Secondary legislative acts and by-laws are also adopted by regulatory agencies and other delegated authorities (such as regulatory agencies, social institutes or schools) and municipalities (212 in total), respectively. In addition, Slovenia adopted several nonbinding recommendations, such as the parliamentary Resolution on Legislative Regulation in 2009 (RLR), drafting guidelines and handbooks on regulatory impact assessment (RIA). These sources in particular promote the need for smart legislation, ie, coherence, transparency and participation. Nonetheless, Slovenia still has several regulatory gaps in this sense.6

27.2.  The Understanding of Legislation in Slovenia Theoretically speaking, regulations in Slovenia are understood as a broad concept of prescribing relationships in society for a common co-existence. Regulations represent an authoritative, usually state intervention in a private domain, or a rule that enforces such intervention, to contribute to predictable and therefore better relations in society.7 Legally 4 See also L Šturm and F Arhar (eds), Commentary on the Constitution of the Republic of Slovenia (Brdo, Faculty of Government Studies, 2011), particularly commentaries on arts 121, 140, 153 and 160ff; I Kaučič (ed), Twenty Years of the Constitution of the Republic of Slovenia: Significance of Constitutionality and Constitutional Democracy (Ljubljana, UL/Faculty of Law, 2012). 5 RNA, Poslovnik Državnega zbora, OGRS, No 35/02, 60/04, 64/07, 105/10, 80/13 and 38/17; RG, Poslovnik Vlade RS, OGRS, No 43/01, 23/02, 54/03, 103/03, 114/04, 26/06, 21/07, 32/10, 73/10, 95/11, 64/12 and 10/14. 6 See RLR, Resolucija o normativni dejavnosti, OGRS, No 95/09, 1: ‘However, there exist some cases of exaggerated standardising or case-by-case basis … only partially regulated individual legal areas, unfinished solutions, inconsistent implementation of law, non-issuing or late issuing of implementing rules, disrespect for hierarchy.’ cf P Kovač, ‘Between Theoretical Principles and Practice in Slovene Regulatory Impact Assessment Procedures’ (2017) 3/4 Review of Central and East European Law 243–48; and OECD, Regulatory Policy in Slovenia (Paris, OECD Publishing, 2018). 7 On legal effects, see M Pavčnik, Teorija prava (Ljubljana, Cankarjeva založba, 2001), 150ff, who emphasises that the vectors of legal changes are legislative (or normative legal) acts, which create, re-define or abrogate legal

Legislation in Slovenia  435 effective and binding acts are further classified and strictly distinguished between: (i) general or legislative acts, ie, primary laws and secondary legislation, with an ‘ought’ perspective; and (ii) individual decisions, where general norms are applied to the concrete facts of an individual case. Nevertheless, following a distinction between legislation and r­ egulation – the latter being any public intervention in the market or in society and the former seen as an authoritative form in which the law is enacted through externally effective legal rules8 – legislation is the most common form of governance and public policy implementation in Slovenia. However, the basic terminology in meta-regulation is inconsistent – namely, the most frequent expression applied in Slovenia in both rules and theory is predpisi, literally meaning regulations, but theoretically and practically referring (only) to ‘legislation’.9 Slovenian jurisprudence distinguishes between legislative acts, norms, principles and rules, matching them with various legal relations and determining their hierarchy. Naturally, more decisive and important contents should be regulated by higher acts, adopted by higher authorities, have higher procedural formality and involve several stakeholders. Any alleged unconstitutionality or illegality is reviewed by the Constitutional Court, which can abrogate laws or annul secondary legislative acts ab initio, thus acting as a negative law-maker.10 If the content of an act differs from what is expected from its title (such as general norms in a ‘decision’), substantive criteria (scope, competence etc) prevail.11 Statutory laws are adopted pursuant to Article 87 of the Constitution, which is mandatory when determining the rights and duties of citizens and other persons. Pursuant to Article 21 of the Government Act (GA) and Article 74 of the State Administration Act (SAA),12 secondary legislation (eg, governmental decrees and ministerial rules) can be adopted: (i) based on a special executive clause in the sector-specific law; or (ii) if the government or the ministry assesses that there is a regulatory need for such (ie, spontaneous) acts. Recently, some hybrid acts have been passed, consisting of abstract individual or general concrete norms. This opens up dilemmas regarding due process and judicial review, since they differ fundamentally.13 rules (norms). However, legal effects occur and are not disputable if a competent authority adopts them within its competence through an act of will in due procedure. When studying laws and authoritative regulations, the social will of the people needs to be observed in order to strive for legality and legitimacy of legislation. Moreover, when interpreting legislation, ratio legis and broader ratio iuris should be followed. cf ibid 186 on the hierarchy and conformity of normative acts (superior/inferior). 8 U Karpen and H Xanthaki (eds), Legislation in Europe (Oxford, Hart Publishing, 2017) 19. See also M Pečarič, Regulativne tehnike (Ljubljana, OGRS, 2015) 12, 67ff, stating that market competition aims to provide better data and services for the people, while authorities have a ratio in freedom and security protection. 9 The Constitution refers to legislation explicitly by the wording ‘law and other regulations and general acts’ (see arts 8, 64, 153, 154, 155, 160 and 161). cf Pavčnik (n 7); A Igličar, Zakonodajna dejavnost (Ljubljana, GV, 2011); Šturm and Arhar (n 4). 10 Constitution, Article 161, and Constitutional Court Act, CCA, Zakon o ustavnem sodišču, OGRS, No 15/94 and amendments. 11 See Pavčnik (n 7) 167–85 on territorial, personal and temporal validity of legislative acts. 12 GA, Zakon o Vladi RS, OGRS, No 4/93 and amendments; SAA, Zakon o državni upravi, OGRS, No 52/02 and amendments. 13 See R Godec (ed), Upravni zbornik (Ljubljana, IJU, 1993). For instance, an advance tax ruling or pre-decision in building matters is considered a letter of guarantee that refers to an individual addressee, yet it is based on some future and only potential facts. In other words, the procedures of adoption and judicial review differ significantly for general and abstract acts, and individual and concrete acts. The former are usually adopted by the Parliament, governmental bodies and municipal councils, and are reviewed before the Constitutional Court, while the latter are issued in administrative procedure and are reviewed before special courts in an administrative dispute. In this regard, the Supreme Court, case X Ips 76/2014 of 23 April 2015, considered a tax act published online and issued, according to the tax authority, in a single case only to actually have the effect of a general act, due to the equality before the law and legitimate expectations of taxpayers.

436  Polonca Kovač and Katerina Fabrizio Hierarchy and legal conformity are the most crucial issues when pursuing the rule of law, which is stated as the highest principle underlying authoritative relations. Table 27.1 below illustrates the main types of legislative acts in Slovenia, which all need to comply with EU legislation.14 To this end, in 2003, the National Assembly adopted the Constitutional Act Amending the Constitution. Article 3a now enables the transfer of the exercise of part of Slovenia’s sovereign rights to international organisations, which allowed the country to become a full member of the EU on 1 May 2004. Table 27.1  Main types of legislative acts in Slovenia and their hierarchy Level

State/local by/laws

Type of acts

Who adopts/ issues them?

Remarks

1

National

Constitution

National Assembly

Amended by constitutional laws

2

National

Statutory laws (zakoni)

National Assembly

The Slovenian system does not know organic laws, only a few requiring a qualified majority, hence the same hierarchy is valid for systemic and sector-specific laws, while their potential conflicts are resolved according to the general legal interpretation

3*

National/state Decrees (uredbe) secondary/ Rules (pravilniki, executive odredbe, navodila) legislation Rules and other general acts for the exercise of public authority (splošni akti za izvrševanje javnih pooblastil)

4* 5

3* 4*

6

Government

The government may delay the Ministries/ministers effect of ministerial rules (Article 5 GA) State bearers of public authority (delegated by or based on the laws that determine their competences and scope)

Local community/ municipal by-laws

Ordinances (odloki) Municipal councils

Hybrid acts, eg, with individual but abstract norms

Letters of guarantee Administrative (garantni akti, authority, Zusicherung/ determined by law Zusage)

Other regulations (pravilniki etc)

Mayors and local bearers of public authority (eg, primary schools)

For all but regulatory agencies, the review of legality is conducted primarily by the line ministries; if the ministerial proposal is not granted, the government can delay its effect (Article 72 SAA) The review of legality is conducted primarily by the line ministries (Article 64 SAA); if the warning is not taken into account, the government initiates the procedure before the Constitutional Court Questionable as to which procedure and what form of judicial review applies: that for legislative or that for individual acts

Note: * The national and local legislative acts under 3 and 4 are of the same hierarchical level 14 On Member State autonomy, see eg, Case C-603/10, Pelati doo v Slovenia [2012] ECLI:EU:C:2012:639; and C Harlow and R Rawlings, Process and Procedure in EU Administration (Oxford, Hart Publishing, 2014) 13–16ff. Furthermore, laws and other regulations in Slovenia must comply with other (non-EU) international treaties.

Legislation in Slovenia  437 In practice, however, contrary to theoretical principles yet characteristic of all countries,15 Slovenia’s secondary legislation is excessive and far outnumbers statutory law, which accounts for only four per cent of all regulations. This is due to multi-layered processes, above all post-transition, EU harmonisation, and what is known as Juristen Monopol, with legislation being almost the only instrument of governmental policies besides budgetary measures. On the contrary, one can detect the influence of modern governance models, such as New Public Management or Digital Era models, having an indirect impact on the regulatory activity, since these approaches are supposed to reduce red tape and governmental legislation in favour of other, non-legislative regulations and measures.16 The reality in Slovenia shows an increase in the number of laws and regulations, as well as the fact that Slovenia has become an increasingly regulatory country. Moreover, public administration is seen as the actual or material legislature, proposing over 90 per cent of legislative initiatives. In 1991, when Slovenia was founded, primary laws accounted for 41 per cent of all regulations, while in 2019 they only accounted for approximately four per cent, compared to 96 per cent comprising secondary legislation. In fact, there were only around 850 laws compared to 19,780 executive legislative acts in force at the beginning of 2019. Slovenia is therefore a formally regulated state with an exemplary legal system, yet there is a need to strengthen implementation-related aspects in order to introduce Better Regulation and good public governance in practice as well as in theory and the meta-regulation in force.

27.3.  Legislative Organisation and Procedure in Slovenia The organisation and procedure of Slovenian legislative are rather formal. Their main characteristics derive directly from the Constitution. Thus, for example, the Constitution determines the initiator of the legislative procedure (Articles 88 and 97) and provides for the lawfulness and conformity of legal acts with hierarchically higher acts both in the stage of their adoption and throughout the procedure of constitutional review (Articles 91, 120, 121, 140, 153–56, 160–62). The Constitution explicitly determines that the National Assembly has the exclusive legislative competence for laws (Article 87), while the National Council (upper house) can only propose laws or veto already adopted laws (Article 97). Regulatory procedures are further determined by two key legal acts: (i) the RNA, which is applicable to laws only; and (ii) the RG, which are applicable in governmental legal drafting, in particular to governmental and ministerial secondary legislative acts. The RNA is a legally binding and rather detailed act with 288 articles, while the RG are issued as a governmental decree since the government – with ministries and bearers of public authorities – only adopts secondary general or legislative acts. The respective metaregulation addresses rather formal aspects of the regulatory cycle, while issues such as the 15 See generally Karpen and Xanthaki (n 8) 3, 8ff. For Slovenia, established by various public policy holders in the analysis carried out in 2017, see P Kovač, ‘Predpisi kot dejavnik razvoja javnih politik’ in M Vintar, A Aristovnik and M Klun (eds), Vidiki in dejavniki uspešnega izvajanja javnih politik (Ljubljana, UL/Faculty of Administration, 2018) 92–100. The data on the number of legislative acts in Slovenia are provided by the Zakonodajni supervisor (Regulatory Supervisor): www.tax-fin-lex.si/Supervizor. 16 On the transformation from Weberian bureaucracy to New Public Management, see also G Helleringer and K Purnhagen (eds), Towards a European Legal Culture (Munich, CH Beck, 2014) 139–62, who warn against a too narrow perspective of governance and legislation – namely, if only legal views are considered, legalism prevails over legitimacy, while the prevalence of managerial aspects leads to a constitutional crisis, erosion of democracy etc.

438  Polonca Kovač and Katerina Fabrizio setting of goals, ex ante and ex post evaluation or stakeholders’ engagement and legal drafting are largely regulated by the non-binding RLR and guidelines. This leads to an underrated social framework of smart legislation and a particularly evident lack of the feedback loop.17 The legislative procedure for statutory laws is divided into four general phases: (i) preparation of the relevant material within the ministry or other governmental department, (ii) the procedure within the government and, mainly, (iii) the procedure in the National Assembly, usually consisting of three readings (unless the shortened or the urgent procedure applies), followed by (iv) promulgation and publication, and possibly veto or other form of review.18 For governmental decrees and ministerial rules, the process is normally initiated by a line ministry. The proposals of these acts must be coordinated with other concerned governmental bodies and the general public, after which a decree or rules can be adopted by the government or ministry and published in the Official Gazette. However, secondary legislative acts are also subject to various subsequent reviews. Table 27.2 below provides an overview of the Slovenian legislative process for statutory/primary laws and executive/secondary legislation.19 Table 27.2  The Slovenian legislative process for primary and secondary legislation in phases

Phases

Statutory/primary laws

Governmental and ministerial executive/ secondary legislation

Proposers

Government (which in the last two decades proposed over 92 per cent of all acts), any deputy, at least 5,000 voters, the National Council (Articles 88 and 97 of the Constitution, Article 114 RNA)

Prime Minister, ministers, Secretary-General, directors of offices and other authorised proposers (Article 7 RG)

Obligatory elements of an act

Draft laws: title, introduction, text of articles, statement of reason, impact assessment (Article 115 RNA; Article 8b and 8c RG) Adopted laws: preamble, title, introductory, central and special, penal, transitional and final provisions

Preamble, title, text of articles, legal basis, contents, RIA and public consultation results (Article 8c RG)

Coordination within the government

Prior inter-ministerial coordination (especially with the Ministries of Finance, Public Administration and Economic Development) and the Government Office for Legislation for any government material (draft primary and secondary laws) before submission to the government (Article 10 RG) (continued)

17 There are some specific requirements set by the RNA and/or RG – eg, the proposer must provide an evaluation of the state of affairs and of the reasons for adopting the law, the goals, principles and main solutions, an estimation of the financial implications, a statement on the resources for implementation, a comparison with other countries and the EU, and public consultations – but these are sometimes omitted in practice. 18 Active cooperation takes place between the government and the National Assembly, eg, governmental representatives attend committee meetings or plenary sessions (arts 235–39 RNA), deputies present parliamentary questions and motions to the government etc (arts 240–49 RNA). 19 By-laws adopted by municipalities are not taken into account here as there are no general rules, only sectorspecific ones (typically related to spatial planning). In addition, there are some rules on the legislative acts of regulatory agencies in the SAA, but we refrain from analysing these due to the primary significance and quantity of state legislation. For more on individual phases, see Igličar (n 9); Kovač (n 6) 224ff.

Legislation in Slovenia  439 Table 27.2  (Continued)

Phases

Statutory/primary laws

Adopting body

National Assembly (Article 87 of the Constitution; RNA)

Phases before the adopting body

Preliminary procedure/reading (non-obligatory)

Regular procedure – first reading

Regular procedure – second reading

Governmental and ministerial executive/ secondary legislation Government, individual ministries (GA, SAA, RG)

Establishing the prior opinion of deputies, eg, when regulating areas with conflict of interests (Article 119 RNA)

RG generally regulates the governmental regulating process for all types of governmental material, be it proposals of laws, implementing regulations or Deputies take note of other decisions, in one reading the legislative proposal (approximately 15 days), a if the material is eligible, and general debate can be held determine, inter alia: –– material that is to at the plenary session to be submitted to the determine which working Secretary-General of the body is competent for this government as a gatekeeper, proposal (RNA, –– publication in the digital Articles 121–124) information system; Debate and voting – – RIA (see above), within a working – – conduct of public body on individual consultation (unless in case articles and parts of of emergency; Article 11a the legislative proposal RG), (RNA, Article 125–133), – – preliminary amendments can be inter-ministerial tabled by deputies, deputy coordination, groups, working bodies, – – decision on the type of Government (where it is procedure (regular session, not itself the proposer) meeting by correspondence, (RNA, Article 135). working body), Debate and voting at –– etc (Articles 12–18 RG) plenary session on individual articles and parts of the (amended) proposal (RNA, Articles 134–139)

Regular procedure Debate and voting on the – third reading proposal as a whole (and individually on amended provisions); if less than 10 per cent of articles are to be amended, phases 2 and 3 are joined together (Articles 140–41 RNA) (continued)

440  Polonca Kovač and Katerina Fabrizio Table 27.2  (Continued)

Phases

Governmental and ministerial executive/ secondary legislation

Statutory/primary laws Shortened/urgent procedure

No phase 1, while phases 2 and 3 are joined together; the shortened procedure is for minor matters and the urgent procedure in case of an emergency (Article 89 of the Constitution; Articles 142–44 RNA)

Suspensions

The National Council can veto a law within seven days from its adoption, which causes a repeated procedure and a qualified voting in the National Assembly (Articles 91 and 97 of the Constitution; Article 75a of the Rules of the National Council); if the law is proposed by the government, National Council members can submit a written initiative/question to the government and other participants (Articles 97–98 RNC)

The government and ministries exercise review over inferior proposers and their regulations, and can delay the effect thereof (Article 5 GA; Articles 64 and 72 SAA; RG – see Table 27.1)

Promulgation

President of the Republic (Article 91 of the Constitution)

/

Publication

Obligatorily in the Official Gazette of the Republic of Slovenia prior to the entering into force of any law/legislative act (Article 154 of the Constitution)

Review (if referred to the Court)

Constitutional judicial review before the Constitutional Court for all laws and by-laws, incorporating a substantive and a procedural review, afterwards the possibility of immediate partial or complete annulment or abrogation (Articles 156, 160–62 of the Constitution; CCA)

Referendum (if initiated)

Retrospective legislative referendum as stipulated by the Referendum and Popular Initiative Act (Articles 90 and 170 of the Constitution)

Evaluation, amendments

No mandatory ex post evaluation, either for a (by-)law or in the case of an allegedly established need for its amendment; the procedure for the adoption of laws also applies, mutatis mutandis, for amendments

No possibility of referendum

In terms of smart regulation, it is worth mentioning the extensive opting for the urgent procedure in the National Assembly in 2009–11 and later, with more laws being adopted by the urgent procedure than by the regular procedure. However, the situation improved – in 2016 and 2017 in particular, the share of laws adopted under the shortened or urgent procedure dropped, which implies a certain increase of maturity in Slovenia. In practice, the entire procedure from draft to approval of a statutory law usually takes several

Legislation in Slovenia  441 months,20 while the urgent procedure can only last around one week, which frequently leads to errors that need to be corrected by numerous amendments. Furthermore, Slovenia presents some peculiarities, such as the procedure for adopting an authentic interpretation of the law21 or drafting an official consolidated text by the parliamentary Legislative and Legal Service, which is confirmed by the National Assembly without debate (Article 153 RNA). Specific procedures are also determined for the adoption of the state budget (Chapter  3 RNA), for the legislative referendum and regarding the role of the Constitutional Court.

27.4.  Goals and Instruments of Law in Slovenian Theory and Practice Law consists of norms, relations, interests and values, whereby values – as ideas manifested in the conduct of people – are the prerequisites for the regulation of social relations and at the same time the subject of regulation by legal norms.22 Law is an instrument of prevention and peaceful resolution of disputes, based on legally granted equality rather than physical, political or capital power. Law encourages an argumentative approach in both regulatory design and implementation. When adopting authoritative legal acts, it is of the utmost importance to assert legally relevant public or general social interests. However, in Slovenia, there is no structured approach that would clarify the positioning (where), perspective (when), and visibility (how) of legislative goals. Moreover, drafts regularly present a mix of goals and effects. Goals are mostly set by politicians, especially ministers, sometimes contrary to the professional recommendations of higher officials from the same ministry or previous governmental field strategies.23 There is no continuity, especially when shifting from right-wing to left-wing governments, and vice versa, and above all in politically sensitive sectors (for example, immigration). As revealed by a survey on the evaluation of public policies in 2017 and 2018 involving over 20 key public policy-makers and their non-governmental organisation (NGO) counterparts, practice shows several deficiencies. First, legislation is not directly linked to previously adopted cross-sectoral and specific strategies on the goals and indicators of individual public policies. Second, legislation is rarely designed and enacted based on empirically conducted analyses and their results, but rather follows the political will of the government of the day or just copies and pastes EU rules or presumes some non-verified ideal situations. An example of this is the EU General Data Protection Regulation, which has been in force since May 2018. Despite two years of preparation, no change was made to the national Personal Data Protection Act (ZVOP-1) or its 2018 version (ZVOP-2), which is wrong and inconsistent with the general national system (eg, regarding appeals). Third, there is an evident lack of RIA, especially ex post RIA. Fourth, there is an aversion of ministries to include stakeholders into regulatory 20 This is probably due to time pressures on the parliamentary procedure, which need to be concluded before the expiry of the National Assembly’s term (art 154 RNA). 21 Initiated by the proposers of the law and voted on by the National Assembly (arts 149–52 RNA), and highly criticised in theory (by Igličar, Pavčnik et al) since it blurs the difference between law and its interpretation. 22 Igličar (n 9) 15ff; Karpen and Xanthaki (n 8) 97–108, 187–211. 23 Regarding mixing goals and effects, see Karpen and Xanthaki (n 8) 98ff. The lack of strategic continuity was witnessed by the majority of public policy holders interviewed in the 2017 study; see P Kovač, ‘Predpisi kot dejavnik razvoja javnih politik’ in Vintar et al (n 15) 88, 92ff.

442  Polonca Kovač and Katerina Fabrizio process. Even when public is consulted, the response is very low. Fifth, there is no clear separation between levels of governance and, consequently, the accountability between politicians and officials is blurred, which is particularly problematic when combined with an insufficient capacity of rule-making regarding general principles and drafting techniques. Almost the same findings are reported by other studies,24 which have found that Slovenia has put in place some essential Better Regulation tools, but still needs to make sure that such tools are used effectively, ie, moving beyond administrative burden reduction and focusing on the benefits and overall efficiency of regulations rather than costs. In this regard, a codification of general laws is of the utmost importance since it determines minimal legal guarantees regardless of sector-specific rules and the further integrative role of codifications in a national or EU law due to a rather fragmentary structure of implementing bodies.25 Therefore, rule-makers should comply with the RLR (2009), which states: In preparing and adopting the rules, while collaborating with the expert and other interested public, the following objectives are being pursued: strengthening the rule of law, ensuring legal certainty, protecting human rights and fundamental freedoms, respecting the principle of separation of powers at the national level, in relation to the local self-government and the EU, fully respecting the hierarchy of legal acts, ensuring clarity, transparency, quality, and legal certainty of the regulations, exercising civic participation, performing an impact assessment of the regulations, taking into consideration the efforts of the EU and the OECD in order to prepare better regulations.

In this context, the formal requirement for primary laws and secondary legislation to incorporate the reasons for their adoption26 thus serves to justify the above public benefit, the character of ius cogens in its enforcement, and enables ex post evaluation/RIA as the crowning element of the regulatory feedback loop. Policy-makers themselves can run the latter. Furthermore, evaluation in the form of judicial review is regular practice when regulations are brought before the Constitutional Court for their unconstitutionality, based on an alleged breach of Article 22 on equal protection of rights, where regulations are found to be compliant although deviating from the general order when sector specifics are provided.27 All the above contributes to a simultaneously rigid legal system in Slovenia and a lack of systemic monitoring mechanisms to develop an effective legal system. There are many deviations which, after a decade since the adoption of the RLR and the transposition of

24 See T Štajnpihler, A Igličar and M Pavčnik (eds), Odprta vprašanja zakonodajne dejavnosti (Ljubljana, SAZU, 2016) 10–16, 24ff; Pečarič (n 8) 96ff; OECD (n 6) 11–13, 37ff. The latter emphasises that SMART criteria are currently missing, hence a lack of targeted monitoring tasks makes it ‘harder for regulators in Slovenia to review the effectiveness of regulations and as a result ex post evaluations are often ad hoc’ (at 110). On smart criteria regarding social context, see Igličar (n 9) 178–79, 185. See also Harlow and Rawlings (n 14) on a green light theory of the state legislation as an instrument for the realisation of policy goals. 25 See Helleringer and Purnhagen (n 16) 51ff and Štajnpihler et al (n 24) 11 on ‘regulatory predictability’ that enables economic and social progress. 26 Article 115 RNA requires a draft law to include, inter alia, the goals, principles and main solutions of the draft law. On elements of normative legal acts, see Pavčnik (n 7) 60, 156–66, exposing content and form-related issues. The latter include: (i) the competence of the authority to adopt an act; (ii) due process (particularly for laws – cf Igličar (n 9) 59, 176ff); and (iii) the expression of the act by an external legally prescribed instrument. Pursuant to art 154 of the Constitution, regulations must be published (state regulations in the OGRS) prior to entering into force after the vacatio legis expires. 27 Šturm and Arhar (n 4) 868. For example, see http://odlocitve.us-rs.si/sl/odlocitev/US31348?q=presoja+ustavn osti&sort=date&order=desc, footnotes 15 and 16.

Legislation in Slovenia  443 the OECD best practices (such as special training and manuals), are not attributed merely to the transitional period. We believe that a step forward can be made only through a systemic top-down re-definition of the meta-regulation on legislative processes, eg, by proportionally selecting when a full RIA is required for high-impact regulations, which enables a concentration of resources in the respective fields rather than formalising RIA proceedings. At the same time, a horizontal scrutiny of sector-specific regulations should be conducted to establish their conformity with basic legal standards and inter-sectoral compliance of their objectives and norms. This exercise should lead to constant regulatory guillotine corrections, yet it should also strengthen the necessary rules to increase overall legal certainty.

27.5.  Legal Drafting Techniques Regarding legal drafting, only some rare rules are provided by the RNA and the RG, concerning in particular the elements of draft legislative acts. As regards other issues known in theory or comparative meta-regulation, there are no legally binding documents containing detailed rules. Legal drafting is incorporated in the RG only to a limited degree. The RG, for example, stipulate that governmental material must, among other things, meet the required linguistic and legal drafting standards (Article 8 RG), while the RNA provide the characteristics and components of a draft law (such as introduction, title, text of articles and statements of reason; see Table 27.2) as well as details on the feminine and masculine grammatical forms in the text of articles (Article 115 RNA). In 2004, the Government Office for Legislation (Služba Vlade RS za zakonodajo (SVZ)), as a specialist service of the government responsible for the constitutionality, legality and compliance with the legal system of the EU as well as with the rules on legal drafting techniques in Slovenia, issued the Legal Drafting Guidelines (revised in 2008).28 The Guidelines – which are complementary to the parliamentary RLR of 2009 – do not have the character of a legal act and are not legally binding, but provide a standardised level of quality and uniform legal drafting solutions that need to be observed when drafting legislative acts. The RLR sets basic goals for regulatory activities (clarity, transparency, high quality of acts and competency of administration officials) and points out several more detailed specifications, for example, that ministries must be provided with qualified staff and technology to monitor and regulate areas within their competence, that the underlying acts must be amended by adopting special amending acts and not within the framework of other acts, and that extremely detailed case-by-case standardisation must be avoided. Nonetheless, the Legal Drafting Guidelines contain precise instructions on legal drafting (for example, the description of the obligatory elements of acts, such as title, preamble and special provisions – cf Article 115 RNA and Articles 8b and 8c RG – as well as basic regulatory methods with examples of abstract regulations, structure of the act, language specifics, references in legislation and amendments), examples of the application of guidelines (such as the formal structure and actual text of amending acts, examples of formal references and 28 SVZ, Nomotehnične smernice (Ljubljana, OGRS, 2008), available at: www.svz.gov.si/fileadmin/svz.gov.si/pageuploads/Dokumenti/Nomotehnicne_smer.pdf. See also Kovač (n 19); and Štajnpihler et al (n 24) 21–34.

444  Polonca Kovač and Katerina Fabrizio analogous references in acts) and a special part concerning the application of EU acts in the Slovenian legal system. The RLR and the Guidelines set out the main principles of regulatory techniques, which are crucial for achieving regulatory politics.29 Due to the emerging phenomena of global and transnational governance, the Slovenian authorities participate in the legislative processes of the EU.30 The regulatory management of Slovenia’s obligations deriving from EU membership is based on Article 3a of the Constitution. On the other hand, experience shows a lack of awareness that since Slovenia is part of the EU, the preparation of certain regulations begins with EU institutions, which leads to the insufficient involvement of national representatives in the processes of formulation of EU legislation and the slow transposition of EU law into the national system. The trends of compliance with EU law are demonstrated by a short analysis of the European Commission annual reports on the monitoring of the application of EU law in response to requests from the European Parliament and the Member States. The data reveal that in 2017, 29 new infringement cases – ie, cases against EU Member States due to a failure to implement an EU directive in national law in a timely manner – were opened against Slovenia, which is a little above the EU average (26). The total number of open infringement cases against Slovenia on 31 December 2017 was 51, which is slightly below the EU average (56).31 Compliance with the RG falls under the responsibility of the Government Secretariat-General (Generalni sekretariat Vlade RS (GSG)), which only provides for the formal aspects of the ­materials submitted for governmental sessions – ie, it checks if a proposal contains the prescribed elements, but does not review their substance or verify whether their absence is justifiable. In addition, the Legislative and Legal Service of the National Assembly plays a similar role to the SVZ in governmental procedures, above all reviewing the RNA rules and the conformity of draft laws. However, the division of competences is not clearly defined and the above-mentioned bodies do not have a full mandate to deal with all their responsibilities. Some other documents relevant for the development of a culture of good governance and smart regulation have also been prepared, such as the recommendations and selections of good and bad practices mainly elaborated by the SVZ, handbooks on the identification of excessive administrative burdens and public consultation by the Ministry of Public Administration (MPA), as well as Web portals regarding e-government (eUprava) and the reduction of bureaucracy (eg, the Stop Birokracija portal). It should be noted that the abovementioned activities have not been performed very systematically, which has led to some constant inconsistencies. To sum up, there is a gap in Slovenia between potential and presently regulated standards, particularly in light of the frequent infringements of the RLR because it is merely a political document and not a legally binding regulation. Nevertheless, consistent progress has been observed over time.

29 See Karpen and Xanthaki (n 8) 123–24; Pečarič (n 8) 23–28. Examples are provided, for instance, by M Glušič, ‘Najpogostejše nomotehnične napake v predpisih’ (2009) Pravni letopis 317ff. 30 A special act regulating cooperation between the National Assembly and the government regarding EU affairs was adopted in 2004 (OGRS, No 34/04 and amendments), with subsidiary application of the RNA, especially ch 2a. For more on this, see RLR (2009); and Igličar (n 9) 302–07. 31 cf Karpen and Xanthaki (n 8) 68ff; and RLR. The data on Slovenia and the average figures were taken from the European Commission, 2017 Annual Report on Monitoring the Application of EU Law, https://ec.europa.eu/info/ publications/2017-eu-28-countries-factsheet-monitoring-application-eu-law_en.

Legislation in Slovenia  445

27.6.  Regulatory Impact Assessment RIA has been developed in Slovenia mainly under the auspices of the OECD, with increasing intensity since 2009.32 In Slovenian theory and meta-regulation, especially the parliamentary and governmental rules of procedure, RIA is regarded as an overall document that provides for a twofold function: first, communication, by means of public consultation, the principles of transparency and the participation of various stakeholders; and, second, evaluation, through the principle of data-based decision-making and proportionality by means of an analysis of impacts and burdens, red tape reduction and legal drafting, including interministerial coordination. Pursuant to Article 115 RNA, a draft law contains an evaluation of the state of affairs and the reasons for adopting the law, its goals, principles and main solutions, its conformity to EU law, an estimation of its financial implications with varying degrees of detail, depending on whether it involves more or less than €40,000 in the current and following three years, and a statement that the resources for the implementation of the law are provided for in the state budget. Further, an assessment of the consequences in individual fields is to be provided: (i) administrative consequences, (ii) environmental impact, (iii) economic and (iv) social consequences, (v) consequences regarding development-planning documents, and (vi) consequences for local communities (Article 145 RNA). There is a similar structure set in provisions of the RG that apply to secondary legislative acts, which were largely revised in this regard in 2010 and 2016 (see Articles 8.b and 8.d, and the appendices, eg, no 3, which defines several sub-elements of the main impact to be assessed). The enclosed statement of reasons explains the contents and purpose of individual articles and the consequences and inter-relations of the solutions contained therein. If the respective elements are missing, it is deemed that the draft regulation has not been tabled and/or the material submitted is rejected (Articles 113 and 115a RNA and Article 13 RG). The guidelines provided by the RLR (Chapter VI on IA) are more elaborated, incorporating a rather detailed list of elements, such as the definition of the problem, objectives, alternative solutions, environmental, economic and social impacts. Also worth mentioning is the Handbook on Regulatory and Policy Impact Assessment, published by the MPA in 2009 and revised in 2011 (61 pages), with an additional Uniform Methodology on Costs Measurement (SME test) issued in 2013. The ‘gatekeeper’ is considered to be the GSG along with other coordinating offices such as the SVZ and the MPA, but in practice, the review only covers the technical completeness of the submitted drafts. Sometimes, even interministerial coordination – as required by Articles 10 and 25 of the RG – is overlooked or ignored. However, RIA is not obligatory in the urgent procedure and when ratifying an international treaty or harmonising national legislation with EU law (Article 8b RG). Nevertheless, RIA should be made public and accessible under the Freedom of Information Act, which is especially important since impact assessments are not reviewed by courts in Slovenia. 32 See generally Karpen and Xanthaki (n 8) 187–213; CA Dunlop and CM Radaelli, Handbook of RIA (Cheltenham, Edward Elgar, 2016). For Slovenia, see P Kovač (ed), Presoja učinkov predpisov v Sloveniji (Ljubljana, UL/Faculty of Administration, 2009). Before 2009, RIA had not been implemented in Slovenia due to a lack of knowledge of the content and meaning of the respective system and the non-existence of a general regulation on RIA, with the exception of environmental sector-specific regulations. See also the Stop Bureaucracy portal at www. stopbirokraciji.gov.si/domov.

446  Polonca Kovač and Katerina Fabrizio RIA was the subject of the 2012 analysis of the Court of Audit33 and of a scholarly research study carried out between 2011 and 2016 regarding 141 laws and governmental decrees in the first quarter of these respective years.34 The data show that in the strict sense of the word, particularly as regards the establishment of external economic, environmental and social impacts, RIA seems to have been carried out in only half to two-thirds of cases (62 per cent on average) and in a formal way only. In only 20 per cent of the cases did respondents reply that ex post RIA would be carried out. The proposers failed to carry out RIA or carried it out only minimally or superficially in approximately 67 per cent of cases. The most common reason for RIA was justified by economic elements. In half of all cases, the primary objective of RIA was (only) to reduce administrative and other burdens. The greatest impact was detected in the economic sphere, namely in 32–47 per cent of cases in each year (27 regulations annually), whereas the environmental and social burdens were balanced (with 7–11 regulations annually). The results reveal that there is indeed a gap between the goals and principles set out in the meta-regulation and theory, and what occurs in reality, which is, furthermore, a condition that does not seem to be improving over time. RIA as a governance system is closely connected to stakeholders’ engagement or public consultation/participation.35 The general participation-related rules include the obligation on the authorities to: (i) gather proposals of the general and expert or interested public; (ii)  publish draft legislation, ie, a notice and comment proceeding; (iii) reason authoritative decisions when submitting the proposal, but specifically also when proposals and remarks are not accepted (Articles 8b and 9 RG); and (iv) publish the legislation adopted (Article 154 of the Constitution). The main and officially required communication channel is the governmental portal,36 while ministries, regulatory agencies and municipalities also publish their proposals on their own websites. In the long run, this leads to rules being followed because the decisions underlying them are internalised by the parties concerned. However, there are no specific sanctions apart from not accepting the proposals in the legislative procedure if the rules regarding public consultation or RIA are ignored before the adoption of the legislation. Articles 46, 48, 51 and 10, RNA, and Articles 9ff (with Appendix 3 to the Instructions on the implementation of the provisions of the RG no 10) RG provide for active engagement of experts and the general public in the discussion of the essential proposals to the legislative process, as well as elaborated recommendations and forms.37 Nevertheless, these 33 Between 2006 and May 2012, approximately 8,000 regulations were discussed in Slovenia (approximately 2,000 laws and amendments, just over 2,000 government decrees and nearly 4,000 other implementing acts). The Court of Audit was particularly interested in whether any changes brought about by carrying out RIA enabled more effective rule-making. The outcome of the review was that: ‘The rule-making process does not yet contain effective controls to ensure that the drafting of regulations proceeds according to the prescribed procedure or the quality of the prepared material relating to the draft regulation.’ In 62 per cent of regulations, the proposers indicated that the provision would not have any financial impact and in 54 per cent that it would not have other consequences (environmental, social etc). Special IAs can be conducted also pursuant to sector-specific laws, eg, in the environmental, insurance and banking fields. 34 Kovač (n 19) 243–48. cf OECD (n 6) 76–81. 35 See Dunlop and Radaelli (n 32). cf Karpen and Xanthaki (n 8) 73–95; for Slovenia, see Kovač (n 32) 15ff; Pečarič (n 8) 175. Stakeholders’ engagement is based on art 44 of the Constitution: ‘Every citizen has the right, in accordance with the law, to participate either directly or through elected representatives in the management of public affairs.’ 36 https://e-uprava.gov.si, which featured 83 per cent of draft regulations in 2015. 37 Under ch 2 of the RLR, eg, with a minimum recommendation that public participation in drafting regulations usually takes about 30–60 days. An exception to this are proposals of regulations where cooperation is not possible

Legislation in Slovenia  447 activities are not conducted in all cases when required,38 even though they are generally rather straightforward and increasingly compliant with the meta-regulation.

27.7.  Teaching Legisprudence and Legislative Training Slovenia has developed the two key components of legislative higher education and training that are vital for the good quality of legislation: (i) academic university education programmes for students/graduates as future law-makers; and (ii) training programmes for established, mainly ministerial officials involved in the legislative process. The importance of higher education on the legislative process is already emphasised in the RLR (sections IV and VII), while the autonomy of (state) universities is protected under the Constitution (Article 58). University education is regulated by the Higher Education Act.39 Academic legislative education is offered by several institutions, as presented in Table  27.3, the graduates of which are actually employed as officials responsible for the legislative process at various stages.40 At first sight, the offer does not seem to cover what is needed. Moreover, if available, the courses are rarely mandatory, regardless of the public/ private character of their holders. Table 27.3  Legislative university education in Slovenia: programmes, courses and providers Institution – programme (L = law / (P) A = (public) administration) First-cycle programme (undergraduate)

University of Ljubljana (UL), Faculty of Law – Law (L) Legal drafting, EC

University UL, Faculty of New University of Maribor, Administration – (NU), Faculty Faculty of PA / Public of Government Law – Law Sector Studies – PA (L) Governance (A) (A) NE Administrative Administrative law (AL), OC law, OC with with AL norms AL drafting, drafting and the and legislative implementation process with thereof legal drafting, EC

NU, European Faculty of Law – Law (L) Legal skills, EC with legal drafting, composing individual and general acts (continued)

due to the nature of the subject matter (eg, urgent procedures and the state budget). There are also the Handbook on Public Participation in Rule-Making, Handbook on Planning and Implementing Consultation Processes (2015, 108 pages) and additional Guidelines for the Participation of Stakeholders in Rule-Making (63 pages), all of which are available free of charge online. 38 Kovač (n 19) 242, 246. In 2016, for example, in 32 per cent of cases, no public consultation was carried out on the grounds of urgency, with ministries arguing that it only concerned making the regulation comply with a higher one. The deadline for replies, in cases where consultation was carried out, varied from 7 to 150 days after publication. cf OECD (n 6) 54ff, which states that ‘there is no government-wide, general policy on stakeholder engagement in drafting, implementing and reviewing regulations’. On the other hand, the proposers received very few replies with regard to the published draft regulations – on average only four per regulation. 39 Zakon o visokem šolstvu, OGRS No 67/93 and amendments. The RLR stipulates, inter alia: ‘In the first place, a sufficient number of civil servants with adequate and appropriate education should be provided, with additional specialised knowledge and experience to work in the administrative service … Higher education institutions are supposed to pay special attention within their study programmes to the issue of the preparation of regulations, in accordance with the objectives of this resolution.’ 40 However, this overview does not include specific programmes offered additionally by the listed or other faculties, since they are not relevant for this topic. The Nova univerza (New University) is a private institute established

448  Polonca Kovač and Katerina Fabrizio Table 27.3  (Continued) Institution – programme (L = law / (P) A = (public) administration) Second-cycle programme (master)

Third-cycle programme (doctoral)

University of Ljubljana (UL), Faculty of Law – Law (L) The theory of state and legislative procedure, OC in one out of four modules The constitutional review procedure and legislative procedure, just one out of 58 ECs

University UL, Faculty of New University NU, of Maribor, Administration – (NU), Faculty European Faculty of PA / Public of Government Faculty of Law – Law Sector Studies – PA Law – Law (L) Governance (A) (A) (L) NE Regulatory Juridical NE techniques, OC regulation of in one out of two PA, OC modules Law, ethics and legal drafting, OC

Development of public administration, OC that covers meta-governance

NE

NE

Note: OC = obligatory courses, EC = elective courses and NE = non-established courses

It is evident from the above analysis that not all graduates from the listed programmes actually obtain satisfactory knowledge of legisprudence. It is also a paradox that faculties traditionally offer more courses on the adoption of individual administrative acts than general legislative acts, albeit by definition the latter concern more addressees and should consequently be significantly upgraded in the future. Since university programmes do not sufficiently cover legisprudence, various providers have introduced training seminars and workshops, mostly run at the governmental level (by the MPA and its academy; see Table 27.4 below).41 Mostly, the listed trainings are organised as one-day seminars instead of in-depthworkshops, where a major emphasis seems to be given to standard cost models, while broader, basic or complementary topics – like PC and RIA – are not covered (yet). In addition, training is not carried out in a systemic way and no training evaluation takes place apart from quantitative statistics.

by concessions and other public funds (see nova-uni.si/index.php/en/about/about-university; www.evro-pf.si/en; www.fds.si/index.php/en), while the University of Ljubljana and the University of Maribor with their faculties of law and administration are state institutions (see www.pf.uni-lj.si/en; https://www.pf.um.si/en; www.fu.uni-lj.si/ en). In 2017, the number of graduates at all state faculties and for all cycles was 724. The said faculties are listed in Table 27.3 according to the year of their foundation and hence overall tradition. 41 We hereby sincerely thank the MPA and its Administrative Academy (AA) (Upravna akademija) for delivering the most recent data as requested in October 2018. The AA is an institution of the MPA responsible for the development and organisation of trainings and professional exams (see www.mju.gov.si/si/upravna_akademija). Moreover, the MPA organises some training, such as on RIA and SCM, in collaboration with other departments. Yet, as put forward by the OECD (n 6) 7: ‘The MPA could expand training and guidance for regulatory policy tools. Currently, the MPA only offers regular training on the SME’ (see also at 37, 41–43).

Legislation in Slovenia  449 Table 27.4  Legislative training at the governmental level in Slovenia in recent years Topics

Legal drafting

Public consultation (PC)

Standard cost model (SCM)

RIA

Organising institution(s); period of training

MPA/AA, trainers from SVZ, 2014–18

MPA and Centre of NGOs in Slovenia, since 2015

MPA/A, 2018–19

MPA, Ministry of Economics, 2016–17

OECD and MPA, 2016–17 (three OECD missions)

Goals and themes

Legal drafting skills, Better Regulation (BR) development; RLR and RG, most common errors and solutions, transposition of EU legislation

BR, to train one in-depth expert for each ministry (18 thereof as knowledge multipliers); quality and systematic PC based on MPA manual

Basic PC knowledge and skills; evidence-based policy-making, effective processes, techniques, methods, good practices

Introduction and use of the SCM test application (MOPED); methodology, process, examples, security scheme

Strengthening the Slovenian regulatory policy

2 one-day theoretical and 12 practical trainings

1 two-day 2 two-day workshop workshops

Form and number of types of training

20 seminars, 1 one-day 6 workshops in 18 and 9 two years (in workshops three-day course) training sessions, 2015 conference

Participants, Legal main profile drafting and number officials, language assistants, around 750 in total

Officials from ministries, SVZ, GSG etc, (around 130) and 160 at the 2015 conference

Officials at ministries, around 150 expected (on average 25 per workshop)

Goals, indicators, measuring red tape reduction

Ex post and ex ante RIA, PC

Officials from Legal drafting ministries and officials, no data chambers, over 500 (on average 120 per seminar, 20 per workshop)

Besides this training, the Institute for Comparative Law at the Ljubljana Faculty of Law, in cooperation with the SVZ, has since 2003 organised annual one-day conferences on legal drafting where legal experts, mainly from academia and the SVZ, present current tropics on legal drafting (eg, on EU law, legislative proceedings, amendments, financial impacts and the impact of the state on municipalities).42 42 See Nomotehnični dnevi (Days of Legal Drafting), at www.ipp-pf.si/nomotehnicni-dnevi. For typical deficiencies, see Štajnpihler et al (n 24); KV Progar, ‘Poti in stranpoti nomotehnike – analiza nekaterih aktualnih primerov’ (2014) Pravni letopis 159.

450  Polonca Kovač and Katerina Fabrizio Despite these efforts, the legislative practice indicates that an average legislation drafting profile lacks legal drafting skills, so there is indeed room for future improvements. In fact, regulations are sometimes unclear and questions arise regarding (non-)compliance with the Constitution as stated in theory, the RNA and the RG, the RLR and the Legal Drafting Guidelines, including special solutions, missing strategic goals, frequent intervention provisions to limit budget expenditures and ignoring or (only) partially copying and pasting EU law. More training and better organisation will be needed to remove all the established inconsistencies.

27.8. Conclusion From a legislative point of view, Slovenia presents a mixture of slightly contradicting legacies and contemporary trends, theory and practice. Particularly owing to the Austrian-related legacy, the rule of law is highly regarded, but often appears in a form of (excessive) formalism. Comparatively speaking, new memberships, such as of the EU and the OECD, contributed to best practices. The most important legislative acts and guidelines that determine rule-making in Slovenia are the Constitution (1991) and the parliamentary (2002) and governmental (2001, largely revised in terms of Better Regulation in 2006 and 2010) rules of procedure, the Resolution on Legislative Regulation (2009) and various manuals. Perhaps because these acts regulate the context, procedures and bearers of legislative process rather in detail, some implementation gaps occur and hinder the effective observation of all rules. Quite paradoxically, the traditionally formal meta-regulation might even widen the gap as it is based on unrealistic, idealised situations. Instead, a step-by-step approach to mature and consistent rule-making and good governance should be pursued. Moreover, if any major step in the regulatory cycle is de facto missing; as has sometimes occurred in Slovenia in recent years, one can hardly recognise a full feedback loop, which is characteristic of smart regulation in theory. Nevertheless, Slovenia continues on its path of proactively ensuring Better Regulation in all relevant fields according to comparative best practices. In the future, no radical changes are required in Slovenia, but rather a more systemically balanced and consistent approach to follow the meta-regulation in force and the respective theoretical recommendations. Further, legislative efficiency should be understood as the right relationship between the measures necessary to protect the public interest and the flexibility of the relevant bodies in the global market. The key benefit that will increase regulatory quality is a professional respect among various authoritative and other stakeholders that will expectedly lead to an upgrade from traditionally formal rule-making procedures to a modern smart regulatory system by fully applying goal-setting, public participation and data-based decision-making. It will also be beneficial for Slovenia to develop training in a more focused and practical way. Knowledge should be transferred from theory to practice, both in regulatory procedures and in the content of regulations, to provide democratic and efficient authority and a better society. The above aims and activities lead to the legitimate objective of legislation as a societal phenomenon. Regarding the regulatory function of the authorities, the role of legislation has been and will always be very important in Slovenia, since regulations can act as an obstacle, a stabiliser of development or even a societal motor. Therefore, Slovenia should implement all the steps in the design and implementation of public policies as and when they are legally determined and socially legitimised.

Legislation in Slovenia  451

Further Reading P Kovač, ‘Between Theoretical Principles and Practice in Slovene Regulatory Impact Assessment Procedures’ (2017) 3/4 Review of Central and East European Law 215–50, doi: 10.1163/15730352-04202003 ——. (ed), Presoja učinkov predpisov v Sloveniji (RIA in Slovenia) (Ljubljana, University of Ljubljana, Faculty of Administration, 2009) P Kovač and M Bileišis (eds), Public Administration Reforms in Eastern European Union Member States: Post-accession Convergence and Divergence (Vilnius and Ljubljana, Mykolas Romeris University and University of Ljubljana, Faculty of Administration, 2017), available at: https://ebooks.mruni.eu/pdfreader/public-administration-reformsin-eastern-european-union-member-states-postaccession-convergence-divergence Ministry of Public Administration of the Republic of Slovenia, Stop Bureaucracy (2019), https://www.stopbirokraciji.gov.si/en/home OECD, Regulatory Policy in Slovenia: Oversight Matters (Paris, OECD Publishing, 2018), available at: https://read.oecd-ilibrary.org/governance/regulatory-policy-in-slovenia_ 9789264291690-en#page1 M Pečarič, Regulativne tehnike (Regulatory Techniques) (Ljubljana, University of Ljubljana, Faculty of Administration, 2015). T Štajnpihler, A Igličar and M Pavčnik (eds), Odprta vprašanja zakonodajne dejavnosti (Open Issues of Legislative Activity) (Ljubljana, SAZU, 2016), available at: www.sazu.si/ uploads/files/57dfbe71e126b1a75cebe90f/Razred%20I%20-%20Razprave%2032%20 (ODPRTA%20VPRASANJA%20ZAKONODAJNE%20DEJAVNOSTI).pdf M Vintar, A Aristovnik and M Klun (eds), Vidiki in dejavniki uspešnega izvajanja javnih politik (Aspects and Factors for the Successful Implementation of Public Policies in Slovenia) (Ljubljana, University of Ljubljana, Faculty of Administration, 2018)

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28 Legislation in Spain MARIO HERNÁNDEZ RAMOS

Context The Spanish Constitution of 1978 is the first constitutional text in the history of Spain that has been supported by the majority of society and political groups. It incorporates most of the main features of Western constitutionalism and establishes a parliamentary monarchy, with an imperfect bicameral parliament and a politically decentralised system. Traditionally in Spain, little attention has been paid to the drawing up of legislation and the regulatory technique. However, recently a firm boost has been given to the planning and the procedure of the drawing up and assessment of legislation.

28.1.  The 1978 Constitution as the Framework and Conditioner for Legislation and Legislative Policy Article 1 of the Spanish Constitution (SC) establishes that Spain is ‘a social and democratic State, subject to the rule of law, which advocates as the highest values of its legal order, liberty, justice, equality and political pluralism’. These principles and values, together with the separation of powers, the bicameral parliamentary system (the Congress of Deputies or Lower House, and the Senate or Upper House, also called Cortes Generales or Chambers), the political decentralisation of power and also the guarantee of a wide charter of rights, including social rights (Articles 10–52 SC), shape the framework of the organisation and development of democratic and institutional politics in Spain. All this is normally a part of Western constitutionalism – to be precise, that of continental Europe – the characteristics of which were strongly consolidated and defined by the approval of the Spanish Constitution in 1978. As a result, the drafters of the Spanish Constitution used the constitutions of other European countries as reference points, in particular those of Germany, and also of Italy and France, and to a lesser extent that of the US. However, the peculiar historical and legal history of Spain means that the Spanish Constitution has a number of characteristics and contents which have conditioned and continue to condition the legislative and political process. In the first place and most notably, the Constitution was the result of a consensus which aimed to put an end to the historical confrontation between conservatives and liberals, centralisers and federalists, and different nationalisms of almost two centuries, which had

454  Mario Hernández Ramos culminated in the bloody Civil War (1936–39) and the military dictatorship of Francisco Franco (1939–75). For the first time in Spanish history, a constitutional text was supported by the vast majority of political forces and by Spanish society so as to initiate a period of reconciliation, co-existence, prosperity and peace. However, the consensus between extreme political forces came at a price: a lack of definition and vagueness much greater than was usually found in any constitutional text. This has had a strong effect on legislation and to a large extent on the establishing of many institutions and their powers, and also on the definition of fundamental rights, which must necessarily be effected by law to a larger extent than in other similar situations; the Constitutional Court has played a vital role by ensuring the respect for constitutional precepts in this legislation. Second and in conjunction with the above characteristic, the Constitution recognises ‘the right to the self-government of the nationalities and regions which make up’ the Spanish nation (Article 2 SC). This implies the recognition of a political decentralisation which is expounded in Part VIII of the Constitution. However, beyond political decentralisation as such, the Constitution prescribes nothing more, either in terms of scope or type, but merely the right of the territories to establish Autonomous Regions. An example of this lack of definition is that throughout the articles of the Constitution, the Autonomous Regions making up the Spanish state are not listed. This vagueness means that the Senate, the upper house of the legislature, is not shaped as it is actually defined by the Constitution itself, ie, as ‘the house of territorial representation’ (Article 69.1 SC), and its role in the legislative process may be reduced merely to that of a house of second reading in which the territories do not take part as such. Based on the aforementioned Article 2 SC and the procedures anticipated in Chapter III of Part VIII SC, 17 Autonomous Regions were established, each of which has a parliament and an executive with legislative competences included in their respective Statute of Autonomy, but not a judiciary, as this continues to be a centralised authority. For this reason and many others, the model of Spanish territorial political decentralisation, known as the State of Autonomies, could be defined as essentially a federal system but with many shortcomings from a functional point of view. Given the absence of constitutional regulation, in the development of this model, the political players were and continue to be of great importance in common with the Constitutional Court, so much so that it has sometimes been known as the ‘Jurisprudential State of Autonomies’. Third, the political type of the Spanish state is the parliamentary monarchy (Article 1.3 SC). This assumes on the one hand that the King (or Queen) as Head of State approves and enacts the laws (Articles 62.a) and 91 SC), completing and culminating the legislative process; on the other hand, his actions must always be endorsed by the President of the Government and his ministers, and are of no value without this endorsement (Article 56.3 SC). In short, the monarchy is merely a formal institution and cannot make decisions, which means that it cannot intervene in the legislative process by opposing the approval of any piece of ­legislation, but is obliged to accept it.

28.2.  Legislation and Types of Law The Spanish Constitution is the supreme authority of the legal system to which both citizens and public authorities are subject (Article 9.1 SC). The Spanish Constitution, which came into force eight years before Spain joined the European Union (EU) in 1986, has only been

Legislation in Spain  455 modified on two occasions: first in 1992 on the signing of the Treaty on European Union (Maastricht Treaty) in order to allow the passive suffrage of European citizens in municipal elections (Article 13.2 SC) and second in 2011 in order to introduce and develop the principle of budget stability in Article 135 SC. Such a small number of modifications in spite of the need to reform important parts of the constitutional text after a period of validity of 40 years reveal the difficulties of the political players in reaching a sufficiently wide consensus and in emphasising the merit of the constituents of 1978. There are two procedures for the reforming of the Constitution depending on the subject matter: a simple one and a complex one. If the intention is to reform the Constitution in its totality or a part thereof affecting the Preliminary Section, the essential rights (Chapter II, section 1 of Part I), or the Crown (Part II), the reform bill must be approved by a majority of two-thirds of the Congress and the Senate; after the dissolving of these Houses, the new ones which are elected must approve the reform by a majority of two-thirds, subject to a referendum for its ratification (Article 168 SC). If the intention is to reform any other part of the constitutional text, the bill only has to be approved by a majority of three-fifths of each of the Houses (Article 167 SC). In contrast to other constitutions such as that of Germany, any part of the Spanish Constitution may be subject to reform. On a hierarchically lower level than the Constitution, a distinction should be made, based on the principle of competence as in any federal system, between the legislation issued by the Parliament and the central or federal government, and those issued by the 17 autonomous parliaments and 17 autonomous governments. Over time, an imitation effect has occurred on the part of the autonomous systems of sources of laws with regard to the central system, owing to which the same type of rules exist at both a state and an autonomous level: organic laws, ordinary laws, legislative decrees, decree-laws and regulations. The laws of the central state and those of the Autonomous Regions have the same extent and force, but their material fields are marked out in a different way, which is determined by the block of constitutionality, a set of laws made up of the Constitution, the Statutes of Autonomy and certain state laws which distribute powers between the state and the Autonomous Regions. The highest law of each of the 17 Autonomous Regions, the so-called Statute of Autonomy (Estatuo de Autonomía), deserves particular attention. Given the peculiar and unfinished constitutional design of political decentralisation, the Statute of Autonomy has a controversial legal nature halfway between a para-constitutional law of its respective autonomous region and an organic law, always subordinated to the Constitution (Article 147 SC). It is the basic institutional law of each Autonomous Region and must contain the name of the Region which best corresponds to its historical identity, its territorial boundaries, the name, organisation and seat of its own autonomous institutions, and the powers assumed within the framework laid down by the Constitution and the basic rules for the transfer of the corresponding services. Provision is made for two kinds of laws (statutory laws) in the Spanish Constitution; these can be distinguished in terms of content rather than hierarchy and because they require a different majority if they are to be approved (Article 81 SC). Organic laws are distinct from ordinary laws owing to a material criterion and a formal criterion; it is also interesting to point out that they are an innovation of the drafters of the Spanish Constitution, as although they may nominally be found in French constitutional law, they have a very different meaning in the Spanish constitutional system. From a material point of view (Article 81.1 SC), organic laws are those relative to the development of fundamental

456  Mario Hernández Ramos rights and public freedoms, those approved by the Statutes of Autonomy and the general electoral system, and the remainder anticipated in the Constitution, such as the system of constitutional bodies or highly relevant matters – for example, the authorisation of the holding of treaties which attribute the exercise of sovereign powers to an international organisation (Article 93 SC). Therefore, it is not possible to regulate any matter on the level of organic law, but rather only those constitutionally reserved for this type of law, owing to which the matters cannot be altered at the will of the legislator. From a formal point of view, the approval, modification or repealing of organic laws requires an absolute majority in the Congress of Deputies in a final vote on the bill as a whole (note that this is not required in the Senate) (Article 81.2 SC), with the objective of providing a certain level of stability to the basic topics of the legal system. Notwithstanding this objective of stability, the Constitutional Court has a voluminous case law which interprets in a restrictive manner both the material reserve of organic law and the absolute majority so as to avoid the excessive inflexibility of the legal system. Ordinary laws, or simply laws according to the denomination of the Constitution, are all those that remain. The General State Budgets must be approved by law, and their legislative procedure has peculiarities regarding the remainder of ordinary laws (Article 134 SC). The Constitution establishes two types of subordinate legislation which have the same extent and force of law as organic and ordinary laws, but are different regarding the matters they can regulate, the requirements, the proceedings and the institutions that are involved to be passed: legislative decrees and decree-laws. Laws of this type are issued by virtue of powers which also include the legislative function of the state and which are attributed to the government; the latter exercises them in cases appraised by the Constitution itself and subject to strict parliamentary control. Legislative decrees are forms of legislation with the force of law issued by the government by virtue of the express authorisation of the Cortes Generales denominated legislative delegation (Article 82 SC), which allows the Cortes to attribute to the government by means of a law of delegation the power to issue a norm equivalent to a law, called a legislative decree, in the terms anticipated in the law of delegation itself and within the limits and requirements expressly contemplated in the aforementioned constitutional precept. The Constitution anticipates two types of delegation (Article 82.2 SC). Decree-laws are legislation with the force of law issued by the government in urgent and exceptional cases. In contrast to legislative decrees, it is the Constitution itself which directly provides the government with the power to issue decree-laws, delimiting the scope of this regulatory power and establishing the controls (Article 86 SC). After extensive constitutional case law, the decree-law is conceived more as an instrument of the participation of the executive in the legislative function in the event of an emergency than as a remedy for exceptional cases. Decree-laws may not affect the rules of the basic state institutions, the rights, duties and freedoms of citizens regulated in Part I of the Constitution, the system of the Autonomous Regions or general electoral law (Article 86.1 SC). Within a deadline of 30 days after their enactment, decree-laws are to be submitted to the debate and voting of the entire Congress of Deputies, which pronounces its opinion on their validation or repeal (Article 86.2 SC). During these 30 days, the Cortes may process the decree-laws as bills by means of the emergency procedure (Article 86.3 SC). It is not uncommon for the government to use this procedure in an abusive manner, especially in the recent years of economic crisis, as the Constitutional Court has ruled.

Legislation in Spain  457 Finally, the international vocation of the Spanish Constitution is a characteristic which is undeniable. By means of an organic law, authorisation may be granted for concluding treaties by which powers derived from the Constitution shall be vested in an international organisation or institution (Article 93 SC) such as the EU, and also the concluding of international treaties which once published officially in Spain will form part of the internal legal system and may only be repealed, modified or suspended in the manner anticipated in the treaties themselves, which determinates a kind of supra-legal and infra-constitutional hierarchy (Article 96 SC).

28.3.  The Competences, Organisation and Procedures of Legislation The coming into force of a law is the culmination of a complex process consisting of several steps, which begins with an initiative triggered by the analysis of a specific need and the definition of specific objectives, the drawing up of a draft, the discussion of a bill at the parliament, the modifications resulting from discussions and deliberations, and the adopting of a bill and its approval. The legal framework of the legislative process is that of the Spanish Constitution, which devotes a whole chapter to the procedure of the drawing up of laws (Articles 81–92), the regulations of each of the Chambers (the Congress and the Senate), the Government Act, and other complementary laws such as the organic law of popular legislative initiative. The drawing up and approval of the legislation is incumbent on the legislature; although the legislative initiative is held by several institutions, in practice most bills are created at the request of the government, as in the case in the majority of parliamentary states. Legislative power is the legal competence which empowers it for the exercising of the function of drawing up laws. The Spanish Constitution attributes this power to the Cortes Generales or Spanish Parliament, a territorial bicameral parliament (only in theory) that is imperfect or formal and is made up of the Congress of Deputies and the Senate (Article 66.1 SC). Owing to the territorial structure of the Spanish state, the legislative function not only corresponds to the Cortes Generales; the fact that the Autonomous Regions enjoy political autonomy and parliaments of their own means that the Constitution also attributes legislative powers to the parliaments of these Autonomous Regions. The legislative bodies of the central state are the Congress of Deputies (Lower House) and the Senate (Upper House), although in the legislative process, the Congress plays a leading role to the detriment of the Senate, the legislative work of which is totally secondary, as it is essentially a chamber of second reading. The differences between both chambers also refer to the different composition and electoral system (Articles 68 and 69 SC), as the Congress is elected based on a system of proportional representation of the population (Article 68.2 SC) and the political parties (Article 68.3 SC), while the constituencies of the Senate are shaped based on an egalitarian criterion (basically four senators per province plus the special criterion for the islands (Article 69 SC), which prevents a proportional division of seats among the political forces. The result is that the Senate does not reflect the partisan preferences of the electorate as closely as the Congress. The Congress of Deputies consists of 350 deputies (Article 162.1 of the Organic Law on the General Electoral System) elected by direct equal universal suffrage in a free and secret

458  Mario Hernández Ramos ballot (Article 68.1 SC) based on a system of proportional representation. Each province, which is the electoral district, has an initial minimum of two deputies and the remaining 248 are distributed among the provinces according to their population. Given the small populations of many provinces, this means that the proportional system in them is closer to a majority system, making the number of votes needed to be elected very different from one province to another, and hence the importance of each elector also varies greatly. In short, the proportionality is highly distorted, with some political parties receiving an important boost and others being penalised in the same way. Despite its constitutional definition as a chamber of territorial representation (Article 69.1 SC), the Senate is a chamber elected by direct equal universal suffrage in a free and secret ballot (Article 68.1 SC), with the minor participation of the legislative chambers of the Autonomous Regions at the rate of one senator per Autonomous Region and a further senator for each million inhabitants in its respective territory (Article 69.5 SC). In the current Legislature XIII, out of a total of 251 senators, 43 were appointed by parliaments of the Autonomous Regions. The Senate should therefore also be defined as a chamber of popular representation (Article 66.1 SC). The legislative procedure covers three major stages: a stage of initiative restricted to the proposal of a certain text with a view to its subsequent discussion; a central or constitutive stage during which the bill or proposal is approved and thus becomes law; and a final stage corresponding to royal approval and publication. The legislative initiative may have a parliamentary basis on the initiative of the Congress or the Senate, or an extra-parliamentary basis on the initiative of the Government, of the Assemblies of the Autonomous Regions or of the people (Article 87 SC). The initiative for the constitutional reform is the same as the legislative initiative, excluding the legislative initiative of the people (Article 166 SC). The vast majority and the most important of the initiatives are submitted by the government (these are known as bills);1 this is the primum movens of the parliamentary system as it is aided by innumerable administrative bodies which are in close contact with the problems and needs of society. Proof of the importance of the initiative of the government is provided by the exclusive reserve regarding the State General Budgets Law (Article 134.1 SC), together with the priority of its bills over the non-governmental bills for laws that originate in Parliament (Article 89.1 SC). Bills must be approved by the Cabinet Meeting (Council of Ministers), which will submit them to the Congress accompanied by a statement of the reasons and the necessary background in order to make a decision about them (Article 88 SC), thus disseminating the scope and purpose of the bills. The executive has the generic obligation of providing alongside the bill all the written information necessary to allow the Houses to make a decision on the matter to be regulated with the full knowledge of the situation in the sector. The ‘background’ is therefore understood to constitute the prior studies and reports, all those technical documents ranging from statements (of justification and economic) to studies of viability and objectives, and naturally the reports

1 Actually, the parliamentary groups submit more initiatives than the government, but in the end those submitted by the government are mostly passed compared to those presented by the Houses.

Legislation in Spain  459 and judgments furnished, especially those of a mandatory nature.2 The drafting of bills must comply with the principles of good regulation3 and the Guidelines for Regulatory Technique.4 Within the framework of the initiative of the Congress and the Senate, it is pertinent to stress that, in contrast to other neighbouring countries, in Spain the individual legislative initiative of parliamentarians is not recognised; the initiative falls to parliamentary groups.5 After the submission of the bill the Committee of the House ensures that it complies with the formal criteria, is published and is sent to the government (Article 126.2 of the Standing Orders of the Congress and Article 151 of the Standing Orders of the Senate) so that the latter may state its opinion as far as taking the bill into consideration is concerned, and also its agreement or otherwise with the processing if it involves an increase of the credits or a reduction in the budget revenue (Article 134.6 SC). If there are no objections, it is added to the House’s agenda so that it can be taken into consideration. The initiative of the Assemblies of the Autonomous Regions can take two forms: on the one hand, requesting the government to pass a bill, which is strictly speaking not a legislative initiative, but rather a request made to the government; and, on the other hand, sending the Committee of the Congress a proposal for a law and delegating to the same a maximum of three members in charge of its defence. As to the legislative initiative of the people, the Constitution requires at least 500,000 authenticated signatures and excludes matters of organic law, taxation or international affairs and anything relating to the prerogative of clemency (Article 87.3 SC). All legislative initiatives, with the exception of those presented by the government, must go through the procedure of being taking into consideration at the House at which they are submitted, which consists of a hearing (discussion and voting by the House) on the totality of the proposal of the law, which if it is positive involves its being given leave to proceed. This procedure allows all those entitled to do so to express themselves regarding the legislative initiative and to put their positions on record, as a result of which it plays an important role in democracy. The second or constitutive stage is parliamentary in nature as it occurs entirely in the Cortes Generales, which have competence in the approval of laws. No single procedure exists for the processing of legislative bills; a common procedure and a series of special procedures can be distinguished. Both the Congress and the Senate have a common and ordinary procedure according to which the bills are sent directly to a judging commission; they are examined by the plenary sessions of the Houses as the final stage of the process. However, a special procedure is now increasingly common in the practice of the Congress – that of the commissions with full legislative competence – which implies the exclusion 2 The Constitutional Court has judged the assessment of these antecedents in its judgment (STC) 108/1986 of 29 July 1986, § 3. The Spanish legal system provides for a series of mandatory opinions and reports that must be issued before bills are sent to the Cortes Generales. There are other opinions and reports which, to a different degree of enforceability, can be obtained from a series of public bodies, institutions or corporations, for instance, arts 21 and 22 of Organic Act 3/1980 of 22 April on the Council of State; art 561 of the Organic Act 6/1985 of 1 July on Judicial Power; art 22 of Act 50/1997 on the Government of 27 November 1997. 3 Article 129 of Act 39/2015 of 1 October on Common Administrative Procedure for Public Administrations. 4 Agreement of the Council of Ministers of 22 July 2005, by which the Guidelines for Regulatory Technique are approved. 5 Article 126.1 of the Standing Orders of the Congress of Deputies and art 108.1 of the Standing Orders of the Senate.

460  Mario Hernández Ramos of this single reading at the plenary session of the House. In these cases, the commission approves the text directly without the intervention of the plenary session. Indeed, this procedure has now become the generally used procedure, and the common procedure tends to be restricted to those cases in which it is constitutionally imperative (Article 75.3 SC). In contrast, the Senate has continued in practice to use the traditional system, which reserves a single final reading for the plenary session. Finally, once the laws have been approved by the Cortes Generales, within a 15-day deadline, the King must give his assent to them, promulgate them and order their immediate publication (Article 91 SC). The participation of the Head of State is mandatory and cannot be avoided. Both the approval and the enactment must be endorsed by the President of the Government or by one of his ministers (although the practice followed since the coming into effect of the Constitution has been that the President of the Government has acted as the sole endorser of the approval of the monarch). Since 1 January 2009,6 the official gazettes or registers published on the corresponding website have the same effects as those of the printed edition. Access must be universal and free of charge.

28.4.  Methodology: Policy-Making, Objectives and Instruments of Legislation According to the Spanish Constitution, the conducting of home and foreign policy falls to the government (Article 97 SC), owing to which this body determines the political agenda to follow and implement. In order to do so, the government makes use of all its members, ie, the President, the Vice-Presidents and the ministers (Article 98 SC), with each of them having a Cabinet, which are bodies of political and technical support. In the establishing of this political agenda, it should be borne in mind that the Spanish Constitution contains a wide range not only of principles but also of mandates to the public authorities, mainly to those which may have political initiative, which establish the direction and orientation of many public and legislative policies, although they are sufficiently general to respect the political pluralism typical of any democratic society and state (Article 1.1 SC) – for example, the promotion of freedom and the equality of all persons and groups in society, which involves allowing positive discrimination (Article 9.2 SC), the respect for dignity and the free development of personality (Article 10.1 SC), and the mandate that the guiding principles of social and economic policy (Articles 39–52 SC) must govern positive legislation, judicial practice and the action of the public authorities (Article 53.3 SC). In contrast to other countries, Spain does not have a body in charge of drawing up bills; the various ministries draft them according to their own competence. Therefore, once a political decision has been taken, the initiation of the procedure of drawing up laws falls to the competent ministries. Traditionally in Spain, little attention has been paid to the first steps in the drawing up of legislation, mainly in the definition of the objectives of a new law and in the instruction to the



6 Royal

Decree 181/2008 of 8 February, regulating the ‘Official State Gazette’.

Legislation in Spain  461 designer to produce a draft. However, recently a firm boost has been given to the planning and procedure of the drawing up and assessment of legislation after the various initiatives and bills of the EU on ‘Better Regulation’7 and ‘Impact Assessment’8 and of the Organisation for Economic Co-operation and Development (OECD) promoting the techniques of regulatory impact assessment (RIA). Particular attention should be paid to the report issued by the OECD in 2014 entitled Spain: From Administrative Reform to Continuous Improvement. In short, it was only relatively recently that Spanish legislation began to reflect the main suggestions of these bills and reports of European bodies in order to improve the legislative process by means of the identification of the objectives of public policy, the assessment of the need for legislation, the improvement of efficiency and effectiveness in order to achieve the objectives, and the consideration of the alternatives and advantages of the various approaches so as to identify the most suitable as a clear improvement over the previous regulations, which are much more moderate and do not stand out in administrative practice. In this sense, despite the fact that a regulation on the subject already existed, 2009 saw a more detailed development of the content of RIA reports, establishing in the administrative culture the importance of ex ante analysis and assessment of the regulatory impacts as an indispensable instrument of any regulatory policy.9 More recently in 2015, a series of laws were approved10 which were more ambitious and much more important, and repealed the laws mentioned above, improving the exercising of legislative initiative and regulatory powers in accordance with the principles of Better Regulation and guaranteeing in an appropriate manner citizen participation in the drawing up of legislation, strengthening legal security and periodic assessment of the legal system. The observance of the principles of Better Regulation – ie, necessity, effectiveness, proportionality, legal security, transparency and efficiency – must be complied with in the exercising of legislative initiative. Of these regulatory improvements, three major ones can be singled out. In the first place, the obligation of planning the regulatory activities of the government was introduced by means of the approval of an Annual Regulatory Plan with the objective of the rationalisation of the activity of regulatory production and the improvement of the quality of legislation.11 As a result, the government annually approves a plan containing the legislative or regulatory initiatives which will be submitted for approval by the chambers the following year.12 With the aim of facilitating the necessary participation of all ministerial departments in the process of planning and regulatory assessment, an inter-ministerial board has been established, called the Board of Planning and Regulatory Assessment (Junta de Planificación y Evaluación Normativa), which consists of the incumbents of the General Technical Secretariats of each ministry with the competence to draw up the bills of the 7 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-whyand-how/better-regulation-guidelines-and-toolbox_en. 8 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en. 9 With the enactment of Royal Decree 1083/2009 of 3 July, regulating the Regulatory Impact Assessment Report and a Methodological Guide for the preparation of this report of 11 December 2009. 10 In particular, Act 39/2015 of 1 October on the Common Administrative Procedure for Public Administrations; and Act 40/2015 of 1 October on the Legal Regime of the Public Sector, which includes an ad hoc amendment to Act 50/1997 on the Government. 11 This Annual Regulatory Plan is regulated by art 25 of Act 50/1997 on the Government and developed by Royal Decree 286/2017 of 24 March. The first plan approved (in December 2017) was the Annual National Plan 2018. 12 Although this does not prevent other bills from being sent, they will have to be justified in the corresponding RIA report.

462  Mario Hernández Ramos Annual Regulatory Plan. The Annual Regulatory Plan is coordinated by the Ministry of the Presidency with the objective of ensuring the suitability of all the initiatives processed and of avoiding successive modifications of the legal system applicable in a specific sector in a short space of time. Moreover, once it has been approved, it must be published on the Transparency Portal.13 Finally, this Annual Regulatory Plan must identify the pieces of legislation which must be subjected to an analysis of the results of their application, essentially concentrating on the cost to the administration or the recipients and the administrative charges imposed on the latter. Second, a series of important improvements are introduced in order to achieve an improved and more detailed regulation of the procedure of the drawing up of legislation applicable to both legislation and regulations. Three main innovations can be noted: • The first is the obligation to hold a public enquiry on the portal website of the competent department prior to the drawing up of the text so as to gather the opinions of the subjects potentially affected by the future law and of the organisations that are most representative of the problems intended to be solved by the new law. • The second refers to the obligation that each law must be accompanied by an RIA report.14 Although this is not strictly a novelty, as it was already regulated, the change implies the consolidation of the content of each report by each department drafting the regulatory bill, which must contain a series of sections which will be listed in the last part. • The third refers to the creation of an Office for the Coordination of Regulatory Quality15 with the objective of achieving the coordination and improving the quality of the regulatory activities of the government. In particular, it is responsible for assessing the technical quality of the regulatory proposals, ensuring the correct use of language and compliance with the Guidelines for Regulatory Technique and also the suitability of the regulatory range proposed; for examining the coherence of the initiative with the Constitution and the remainder of the legal system, both that of Spain and that of the EU; for determining the need to include the express repealing of other laws and also that of combining in the new law others existing in the same sector; for assessing the content of the RIA report; and for ensuring that the regulatory initiative complies with the obligations of the transposition of EU law. This office started its operations on 16 March 2018. Third, great importance is attached to the assessment of legislation both ex ante and ex post to the drawing up of laws; this will be discussed in section 28.6 below.

28.5.  Structure, Language and Amendments Legislative technique is the art of legislating clearly and efficiently with an effect on the most general and important matters, such as the unity and coherence of the legal system

13 Article 132.2 of Act 39/2015 of 1 October on Common Administrative Procedure for Public Administrations. 14 Royal Decree 931/2017 of 27 October regulating the Regulatory Impact Assessment Report. 15 Article 26.9 of Act 50/1997 on the Government; Royal Decree 1081/2017 of 29 December, establishing the rules of operation of the Office of Coordination and Regulatory Quality – see https://www.mpr.gob.es/mpr/subse/ occn/Paginas/index.aspx.

Legislation in Spain  463 and the quality, publicity and viability of the law.16 The designing and drawing up of the legislation is highly relevant if the message and the objectives intended by the democratic representatives and the public authorities are to reach the citizens, and if their application and meaning are to cause as few problems and controversies as possible. The quality of the legislation is an essential aspect of the democratic and legal system and is essential for the true efficiency of the constitutional principle of legal security (Article 9.3 SC). In the words of the Constitutional Court, ‘legal security is understood as a certainty on the legal system applicable and protected interests … such as the clarity of the legislator and not regulatory confusion’.17 It is true that concern for legislative techniques in Spain has only arisen strongly in the last 30 years, influenced mainly by the German and Italian contributions to the doctrine and by the appearance in the 1970s of the first guidelines in Austria and Germany, together with the efforts of the EU. The first Guidelines for Regulatory Technique were approved in Spain in 1991, although those currently valid were approved by an Agreement of the Cabinet Meeting of 22 July 2005 to include ‘all the activities of the collegiate bodies of the Government’. This is the document of reference for the drawing up and structuring of legislation in Spain, which is orientative rather than prescriptive and essentially has the objective of the homogenisation and standardisation from the beginning of the texts of the regulatory precepts. The extent of the Guidelines approaches what is known in the doctrine as ‘third-generation’ without covering prior analyses of the decisions, studies of social effectiveness of the legislation or prior questionnaires (Checklisten). By means of the drawing up of these Guidelines, the aim is to achieve the clarity, precision and comprehensibility of the regulatory precepts and to give unity, a systematic approach and coherence to the resultant regulatory texts, while at the same time improving the cognition of the law. In addition, more and more Autonomous Regions are drawing up their own guidelines. The Law on General Budgets is legally obliged to have specific guidelines as to its drawing up and these are established every year by ministerial decree. The Guidelines recommend a specific structure starting with the title of the precept, recitals and an operative part, including the articles and the final section. The title is part of the text and allows its identification, interpretation and quoting. The denomination of the recitals is the ‘Explanatory statement’ (‘Exposición de Motivos’) and all drafts of bills must include it. Its function is to describe the content by indicating its objective and purpose, its background, and the entitlements and competences in the exercising of which it is issued. If necessary, it must summarise concisely the content of the precept so as to achieve improved clarity of the text. In the case of lengthy and complex laws, it is recommended to include an index. The operative part (parte dispositiva) tends to include some general precepts at the beginning which establish the objective and the scope of the application of the law, together with the necessary definitions so as to achieve the improved comprehension of certain terms used in it. Depending on the extent of the law, the articles may be divided into books, for very extensive laws, or parts, chapters, sections and sub-sections based on material and systematics criteria. Each article, which is the basic unit of any regulatory precept, must have a title indicating its content or the matter to which it refers and must



16 P

García-Escudero Márquez, Manual de técnica legislativa (Madrid, Thomson Reuters Civitas, 2011). 104/2000 of 13 April, § 7.

17 STC

464  Mario Hernández Ramos not be excessively long-winded. At the end of the articles, additional precepts (Disposiciones adicionales) can be added which regulate special legal systems that cannot be placed in the articles; transitional precepts (Disposiciones transitorias), which facilitate the change to the legal system anticipated by the new regulation; abrogative precepts (Disposiciones derogatorias), which contain only the clauses of the abrogation of the current law; and final precepts (Disposiciones finales), which may include precepts modifying the current law when the modification is not the main objective of the precept, rules of supplementary application, authorisations, rules on coming into effect etc. Finally, annexes can be added after the corresponding date and signatures of the law. As for the language, the Guidelines recommend the use of clear, precise language that is cultivated in its style but accessible to the average citizen, using a common but never vernacular lexical repertoire, resorting to the use of technical terms with their own meaning, avoiding foreign terms when equivalents are available in Spanish, respecting the normal order of the components of the sentence, and observing at all times the general linguistic rules of the Spanish Royal Academy and its dictionary. Finally, as far as the amendments are concerned, both bills and non-governmental bills tend to suffer from a series of modifications (amendments) during their parliamentary processing, to which the Guidelines for Legislative Technique are also applicable, but without losing sight of the fact that a bill as a legal manifestation of a political decision is an eminently political process. In this regard, the work of legislative advisers (lawyers) in their function of advising and informing the committees of the Houses and their commissions and reports is a guarantee of compliance with legislative technique. Their functions are included in the Standing Orders of the Houses (Articles 35 and 45 of the Standing Orders of the Congress; Articles 35.2 and 68 of the Standing Orders of the Senate) and in the Rules on the System for Advising the Commissions of the Congress of Deputies and the Senate.18

28.6. Evaluation: Ex Ante and Ex Post RIA One of the purposes of legislative technique is the formulation of rules and procedures to guarantee the ex ante and ex post effectiveness and applicability of the coming into effect of the regulatory precepts. The objective of the technique for the evaluation of legislation by means of tests or questionnaires (Checklisten or Prüffragen) is the analysis of the need for the law and its appropriateness, given the end pursued, its effect on the legal system and its enforceability, together with the relationship between costs and results and its acceptability by users. After a first basic Questionnaire of Evaluation, published in January 1990, a great improvement has been achieved in the assessment of legislation in Spain since 2015, including ex ante and ex post evaluation instruments for the approval of legislation. Among these instruments, a leading role is played by the RIA report, which must accompany the drafts of the bills and the purpose of which is to guarantee that those who are to draw up and approve a regulatory bill have the necessary information which will allow them to assess the impact it will have on citizens and the resources which the administrators

18 https://intranet.congreso.es/public_oficiales/L3/CONG/BOCG/E/E_199.PDF.

Legislation in Spain  465 will need in order to apply it. As has already been pointed out, the RIA report contains the reason for the need and regulation alternatives studied; a legal analysis of national law and EU law, including a detailed list of the legislation which will be repealed; a study of the distribution of competences; the economic and budgetary impact; the identification of the administrative charges implied by the proposal; a study of the impact according to gender; a summary of the main contributions of the public enquiry held; and any other aspect that may be relevant in the opinion of the proposing body.19 The Annual Regulatory Plan must identify the pieces of legislation which must be subjected to an assessment on the results of their application by the ministerial departments which proposed them.20 Spanish regulations specify the criteria which would justify the subjecting of the law to this analysis.21 This assessment must include the analysis of aspects such as effectiveness (if the aims have been achieved), efficiency (identifying the administrative charges which may not have been necessary or which were necessary to a lesser extent), sustainability (unexpected aspects which may compromise their viability) and the results of application according to the criterion by which it was submitted to evaluation. If the law has to be assessed, its RIA report must contain a forecast to explain how the results will be analysed. Another ex post evaluation instrument, which was also introduced in 2015, is the Annual Regulatory Assessment Report.22 Before 30 April each year, the Cabinet (Consejo de Ministros) must approve this report, which will reflect the level of compliance with the Annual Regulatory Plan of the previous year, the initiatives adopted which were not initially included in the aforementioned plan, those included in previous assessment reports with multi-annual objectives when at least part of their effects have occurred in the year under assessment, and the conclusions of the analysis of the application of the law evaluated and indicated in the Annual Regulatory Plan. This assessment must be carried out according to the terms and within the deadlines anticipated by the RIA report and must include in any case the effectiveness of the law, its efficiency and its sustainability; it may also contain specific recommendations for the modification and, if appropriate, the repealing of the law assessed when this is advisable according to the result of the analysis. As a final and qualified assessor of the laws, the Constitutional Court must be mentioned, mainly with reference to the principle of legal security (Article 9.3 of the SC).23 As the High Court has affirmed, ‘confused, obscure, and incomplete legislation is difficult to apply and not only undermines the accuracy of Law and the confidence of citizens in the same but may end up tarnishing the value of justice’.24 The Court has also stressed the advisability of avoiding an excess of references, mutual cross-references, exceptions, or exceptions to exceptions, owing to the fact that they hinder immediate, complete and precise knowledge of the precept in question and its handling, and may result in making it harder to understand ‘understand the will of the Legislator’.25 19 Royal Decree 931/2017 on the Regulatory Impact Assessment Report. 20 Article 25.2 of Act 50/1997 on the Government, implemented by the Royal Decree 286/2017, on the Regulatory Annual Plan. 21 Article 3 of Royal Decree 286/2017 on the Annual Regulatory Plan. 22 Article 28.2 of Act 50/1997 on the Government, implemented by Royal Decree 286/2017 on the Annual Regulatory Plan. 23 Starting with STC 46/1990 of 15 March, § 4. 24 STC 150/1990 of 4 October, § 8. 25 STC 25/1993 of 21 January, § 2.

466  Mario Hernández Ramos

Further Reading P García-Escudero Márquez, Manual de técnica legislativa (Madrid, Thomson Reuters Civitas, 2011) L Jimena Quesada, Dirección política del gobierno y técnica legislativa (Madrid, Tecnos, 2003) Legislar mejor (Madrid, Ministerio de Justicia, Secretaría General Técnica, 2009) Memento Práctico, Técnica normativa 2016–2017 (Madrid, Francis Lefebvre, 2015) F Santaolalla López, Derecho Parlamentario Español (Madrid, Dykinson, 2013) C Viver i Pi-Sunyer, ‘Técnica legislativa: estado de la cuestión y balance provisional de una década’ (1996) 21 Autonomies 15–31 V Zapatero, El arte de legislar (Cizur Menor (Navarre), Thomson-Aranzadi, 2009)

29 Legislation in Sweden JOHAN DANELIUS AND CYRIL HOLM

Context Swedish law is most closely related to the continental legal tradition (civil law), although in some respects – particularly with regard to the importance of the judiciary and case law for the development of the law – it also bears similarities to the common law system.1 Among the civil law countries, the German legal system has had the greatest influence on Swedish legislation and legal order. Over time, however, the Nordic legal tradition has come to develop into a separate legal family that is held together by certain common features.2 The Nordic legal heritage is difficult to precisely define, but is characterised by, among other things, an emphasis on civic freedom and everyone’s equality before the law, as well as rigorous legality and openness in administration. A predominantly pragmatic approach – rather than a theoretical/systematic approach – to legislative work has also been regarded as ­distinguishing Nordic legislation in general and Swedish legislation in particular. The high status accorded to preparatory works as a source of law is another characteristic feature of the Swedish legal order.

29.1.  Legislation in Sweden 29.1.1.  The Constitutional Framework The Swedish Constitution sets out the principles that apply to the basis of the Swedish state administration.3 It states that all public power is based on the people. In this basic 1 Konrad Zweigert and Hein Kötz, Introduction to Comparative Law, 3rd edn, Tony Weir (trans) (Oxford, Clarendon Press, 1998) 277. 2 During much of the twentieth century, an ambitious pan-Nordic legislative cooperation was of distinct importance in many legal areas, particularly the ​​civil law, and much of the legislation that applies today has its basis in joint Nordic legislative projects. However, in recent years, the Nordic legislative cooperation has become less ambitious, partly as a consequence of the Nordic countries’ membership of the European Union (EU) and the European Economic Area (EEA) respectively. Today, for Sweden, a large part of the new legislation consists of implementing or supplementing EU legislation. See further Johan Danelius, ‘Svensk Juristtidning och nordiskt juridiskt samarbete’ (2016) Svensk Juristtidning 1; and Johan Danelius and Kerstin Bynander, ‘Det nordiska juristsamarbetet’ (2018) Svensk Juristtidning 65. 3 Chapter 1, s 1 of ‘The Instrument of Government’. Sweden’s Constitution consists of four documents: ‘The Instrument of Government’ (1974); ‘The Act of Succession’ (1810); ‘The Freedom of the Press Act’ (1949); and ‘The Fundamental Law on Freedom of Expression’ (1991).

468  Johan Danelius and Cyril Holm sense, the principle of democracy is overarching for the Swedish government. However, the Constitution also states that the power of government is to be exercised under the law. The principle of legality is thus a central part of Swedish government practice, although the principle of the division of power has not had the same clear impact in Sweden as elsewhere. The basic meaning of the principle of legality in the Swedish context is that constitutional support is required to exercise state power in relation to individuals. This also reflects the fact that Sweden is a Rechtsstaat: government, Parliament, courts and authorities all have to abide by the principle of legality.

29.1.2. Sources The general opinion among Swedish lawyers is that legislation, preparatory works, case law and legal science doctrine are the authoritative sources of law in legal decision-making.4 Among these sources of law, the legislative text is of course the most important, whereas it is not always straightforward to grade the importance of the other sources of law.5

29.1.3. Regulations Regulation – in a wide sense – is characterised in the Swedish legal tradition by being binding on government agencies and individuals alike and by not referring to specific cases, but by having general applicability. According to the Constitution, the power to issue rules of this kind lies primarily with the Parliament (Riksdag). Regulations issued by the Parliament are called laws (lagar). In certain areas, the government also has the authority to issue binding rules. These are announced in the form of government ordinances (förordningar). After delegation, administrative agencies and municipalities can also exercise norm-giving power. A body that has been entrusted with such powers cannot further delegate this power without an explicit legal basis or direct authorisation to do so. The Constitution does not give an exhaustive answer to how the norm-giving competence is distributed between Parliament and the executive branch.6 A basic division is made between the primary norm-giving area of Parliament, on the one hand, and the primary norm-giving area of the government, on the other hand. The primary area of Parliament includes the organisation and exercise of the coercive powers of the state, and the relationship between individuals and the various branches of

4 See generally on sources of law in the Swedish legal system Stig Strömholm, Rätt, rättskällor och rättstilämpning (Stockholm, Norstedts, 1996). 5 In an analysis of all the private law rulings of the Supreme Court during the period 2007–14, legislation ended up in third place when it came to which sources of law the Court referred to. References to precedents and preparatory works were more common, while the reference frequency to legal science doctrine was at about the same level as the references to the legislative text. In addition to these sources of law, references to foreign law and soft law of various kinds (codes, recommendations etc) were far from insignificant. Of course, far-reaching conclusions are difficult to draw from these findings, but they illustrate the fact that the question about the practical significance of the sources of law and their inter-relationships is complex. See Christina Ramberg, ‘Avtalsrätten och rättskällorna med passivitet som illustration’ (2019) Svensk Juristtidning 272. 6 See further Håkan Strömberg, Normgivningsmakten enligt 1974 års regeringsform (Lund, Juristförlaget, 1999).

Legislation in Sweden  469 government, central private law regulations and public law regulations that impose a burden of some kind on the individual. The primary area of government encompasses regulations that are not part of the primary area of regulation of Parliament. In addition, it includes enforcement regulation; that is, either rules of implementation of a purely administrative nature or regulations that in themselves supplement a law in material respects without adding anything substantially new. The government area of norm-giving also contains the regulations that do not apply to the relationship between individuals and the branches of government, but are of an internal nature, ie, about the organisation, tasks and internal activities of government agencies. Furthermore, regulations that concern the relationship between individuals and government, yet that are not burdensome on the individual, but rather beneficial, or at least neutral, also belong to the norm-giving area of the government. Finally, the government may issue regulations in certain other areas delegated by Parliament. Parliament is unhindered from legislating within the norm-giving area of the executive branch. Parliament is also able to revoke regulations announced by the government. However, a legislative act of Parliament cannot be changed or annulled other than by another legislative act of Parliament. This follows from the so-called principle of the formal force of law (den formella lagkraftens princip), which is an expression of parliamentary sovereignty. The principle of the formal force of law also bears on lower-ranking regulations than parliamentary legislation. Thus, a government regulation cannot be amended or repealed by an authority subordinate to the government, while the government through its regulatory power can repeal or amend a provision of lower rank.

29.1.4.  Preparatory Works Within the framework of the Swedish legislative process, rather extensive written material is produced, which can be used to understand the more specific meaning of the bills that the Parliament eventually enacts. A government proposal is regularly preceded by a report (utredningsbetänkande, eller departementspromemoria) by a government inquiry in which the proposed legislation is presented. These reports are often extensive and normally contain – in addition to arguments for the chosen solutions, as well as impact descriptions of these solutions – specific comments explaining the intended meaning of each individual bill. In a so-called statutory comment (författningskommentarer), the intended meaning of each proposal for a new statutory provision, or amendment of an existing provision, is described. The legal meaning of the different parts of the proposed provisions is explained and guidance is given on how the rules are intended to be applied. Statutory comments of this kind are also included in the bills (proposition) produced by the government and submitted to Parliament. The bill also contains an account of the views submitted in the remittances on the proposed legislation, as well as the government’s views on these. In addition to the aforementioned reports, parliamentary committees draft parliamentary reports (utskottsbetänkande) detailing their views on the proposed legislation and motives behind it. The preparatory works on legislation have traditionally been accorded great significance in the interpretation of the law and, as pointed out, are generally considered a very important source of law in the Swedish legal system. It is particularly common for courts to refer to the government’s statutory comments in the preparatory works. The legislature’s intention, as

470  Johan Danelius and Cyril Holm expressed in bills and other documents that have formed the basis for Parliament’s decision, has thus been considered to be an important element in the interpretation of legislative text that does not in itself give a clear answer to the question on which the court has to decide. The great importance placed by courts on preparatory works is to be understood in the light of an understanding of democracy as principally consisting of majority decisions by the elected representatives of the people. This view of democracy is also at heart of the Swedish Constitution. (However, it should be noted that there are other major strands of understanding the term ‘democracy’, placing different emphases on important aspects – such as the separation of powers, and a maximisation of delegation of sovereignty to the i­ ndividual – of the concept itself.) Great emphasis is placed on reading out what Parliament, as the people’s main representative, wants to achieve with a certain piece of legislation. However, it should be noted that most of the texts in the preparatory works are produced by civil servants within the ministries and parliamentary committees and that the texts are not formally part of what the Parliament votes on. From that point of view, the democratic legitimacy of the preparatory works as a source of law can be questioned. A more practical explanation of the big impact of the preparatory works is that they have traditionally been featuring prominently in commentaries written by academics and other legislative authorities.7 According to a widespread view, the importance of preparatory works as a source of law in the Swedish legal system has reduced in recent years. This development is often associated with Sweden joining the EU in 1995, with its distinct European/continental legal tradition. Many anticipated that the preparatory works would lose their status as a source of law. However, this was not to be the case. That it is compatible with EU law to rely on preparatory works in the interpretation of legislation implementing EU legislation law has been confirmed by the European Court of Justice.8

29.1.5.  Soft Law In addition to binding regulations and preparatory works, there are different types of soft law in Sweden. The importance of such norms has increased in recent years, partly because of the increase of international influence on Swedish society. One of the areas particularly influenced by soft law is civil law. In this area, there are a number of important soft law codes and guidelines, often published by professional bodies or international associations. Compliance is in many cases voluntary, but the incentives to follow the rules are nevertheless often strong. In the business context, those who choose not to follow a given code risk damaging their reputation and ultimately reducing their competitiveness. An example of an important soft law of this kind is the Swedish Corporate Governance Code, which is issued by the Swedish Corporate Governance Board and is a part of the private business sector’s self-regulation. It complements the Swedish Companies Act and other regulations

7 Regarding the role of lawyers in the Swedish political system historically, see Kjell Å Modéer, ‘Jurister på politikernas arenor’ (2011) Svensk Juristtidning 735. 8 See the Court’s judgment in Case C-478/99 Commission v Sweden ECR I-4147 concerning the Swedish implementation of the Unfair Contract Terms Directive.

Legislation in Sweden  471 by specifying a higher standard than the law’s minimum requirements for what can generally be considered to be good corporate governance.9 There are also various forms of ethical or otherwise professional standards that have been of great legal normative significance. A well-known example is the Code of Conduct of the Bar Association (God advokatsed), which through its mentioning in the Code of Judicial Procedure, is linked to rules in the law. In this way, the regulations are given a semi-official meaning. The same applies, for example, to Generally Accepted Accounting Principles (God redovisningssed), which complement the legislation adopted by Parliament in this area. Soft law can also be referred to as instructions issued by government agencies alongside their government agency regulations. Such instructions may deal with so-called public advice. Characteristic of such public advice is that, unlike regulations, they are not binding on either authorities or individuals; instead, they constitute general recommendations on the application of a statute. There is no need for any special authorisation for a government agency to decide on general advice in its area of expertise.

29.1.6.  Courts as Norm-Givers Supreme Court precedent has traditionally been concise and casuistic in Sweden. The Court has taken a cautious role as a norm-giver. It has assessed the circumstances relevant to the case and has then given its legal assessment of the individual case. It has then been up to the lower courts and legal science to judge what general conclusions to be drawn and to what extent it is possible to derive general principles of law from the writings and conclusions of the Supreme Court. In recent decades, the grounds given in the Supreme Court have evolved to become more detailed. An ambition has been that a precedent should stand on its own and should not have to be read together with the decisions of lower courts or the parties’ submissions in the case. It has also become more common that the Supreme Court explicitly pronounces a general legal rule. In the present debate, it has been argued that the Supreme Court has become more activist.10 The above-described development has often been linked to the internationalisation that Swedish law has undergone and is currently undergoing. Through joining the EU in the 1990s, Sweden became subject to European legislation. But even before that, the European Convention on Human Rights had become an important and living instrument in Swedish courts, which was eventually manifested in the fact that the Convention was formally incorporated into Swedish law. This development, combined with a generally increased complexity of the legal system with more frequently occurring conflicts between norms, has made it necessary for Swedish courts to take a more active approach when interpreting the law than was the case beforehand. However, the legal culture among the judiciary must still be described as relatively restrained when it comes to the view of itself as a norm-giver. 9 Regarding applicable law for Swedish companies, see J Danelius, E Sjöman and R Skog in C Gerner-Beuerle, F Mucciarelli, E-P Schuster and M Siems (eds), The Private International Law of Companies in Europe (Munich, CH Beck/Hart Publishing/Nomos Verlagsgesellschaft, 2019) 721. 10 See, eg, Fredrik Wersäll, ‘En offensiv Högsta domstol: Några reflektioner kring HD:s rättsbildning’ (2014) Svensk Juristtidning 1.

472  Johan Danelius and Cyril Holm It is a widespread perception within the Swedish judiciary that judiciary norm-giving lacks much of what otherwise characterises the Swedish legislative process and that over-activist courts are not consistent with the demand for democratic legitimacy in law-making.

29.2.  Cycle of Legislation In Swedish political debate, it is common that requests for legislation are put forward as a means to rectify a social problem or to achieve some other desirable change. Legislative initiatives may also come about as a result of the fact that some authority, or interest organisation, alerts the responsible ministry of a social need. Of course, the need for legislative changes may also occur as a result of Sweden’s international obligations, especially its EU membership. A large proportion of the legislative matters prepared within the Swedish ministries are about implementing legal acts that have been decided in the EU. When an issue of legislative change arises, it will primarily be a matter for the g­ overnment to decide whether, and if so how, to proceed. Parliament may also instruct the ­government – through a parliamentary notification (tillkännagivande) – to investigate a certain issue without the government itself having taken such an initiative. If a government decides to proceed with a legislative issue, the next step will usually be to appoint a government inquiry to investigate the issue. Such an inquiry is given the task to investigate the general conditions for the desired legislative change and to suggest legislative measures for its implementation. Experts, civil servants and politicians are often linked to the investigator or committee. When the investigation is completed, its considerations and proposals are presented in a report. This report is then sent out to the relevant authorities, organisations, municipalities and other stakeholders, who may submit their comments. However, those who have not officially been asked to give their views on the report also have the right to submit comments. When the proposal for the present Constitution (more specifically the part of the Constitution called ‘Instruments of Government’) was presented to Parliament, it was emphasised that the collection of opinions from authorities, organisations and other individual associations is a characteristic and important element of the Swedish political decision-making process.11 The fact that the procedure to collect views from different stakeholders has been insufficient in some respect may constitute grounds for the Legislative Council (Lagrådet; see below) to refute a bill and can ultimately even lead to a subsequent implementation of a legislative act being nullified by a court. Based on the comments made in a legislative inquiry, a decision is made within the responsible ministry on whether, and how, to proceed with the question that has been investigated. If a proposal is severely criticised, an issue may stop short or an attempt may be made to find solutions other than those proposed by the inquiry. However, if there are reasons to continue with a legislative issue, the civil servants at the relevant ministry further develop a draft report for remittance to the Legislative Council. Decisions on remittances of draft reports to the Legislative Council, as well as other government decisions, are made by the government as a collective body. The main rule is that a matter that falls within the

11 Government

bill 1973:90, 287.

Legislation in Sweden  473 areas of activity of several ministries is to be dealt with in the ministry that will be most affected by the legislation under consideration, but in consultation with the other ministers concerned. The co-preparation between ministries (gemensam beredning) ensures that all perspectives are incorporated into the decision-making process. Decisions can only be made if all ministries agree. In the event of a disagreement between ministries, it may be necessary for the matter to be settled by the Cabinet Office (Statsrådsberedningen), but individual ministers are not formally obliged to accept such a decision. When the government has adopted a draft legislative bill, it is submitted to the Legislative Council for review. After the Legislative Council has given its opinion, the proposal is further processed on the basis of submitted comments and subsequently the government bill is submitted to Parliament. The bill is then dealt with in one of the parliamentary committees, which submits its views on the proposal in a committee report before Parliament votes on the bill. If the bill secures a majority, the government promulgates the new law. It is then published in the official publication of legislation and other regulations called the Compilation of Swedish Regulations (Svensk författningssamling (SFS)).

29.3.  The Policy-Making Procedure The means of control in society are numerous. Regulation is one of several important means of controlling social development. Whether a particular political goal is best achieved through legislation or through the use of some other instrument is sometimes difficult to determine. If regulation is chosen as a policy instrument, there needs to be a clear idea of what to achieve. An important part of the process of preparing a legislative matter is to test the viability of this idea. When an inquiry is set up to investigate a possible legislative issue, the means to address the social issue at hand is sometimes left relatively open. In that case, it is up to the inquiry to decide whether legislation is the way forward and, if so, to submit proposals for how such rules ought to be designed in order to achieve their purpose. However, it also happens that the solution to a social problem is already outlined – sometimes in detail – in the instructions to the government inquiry and that the main task of the inquiry is to design a legally functioning solution within the framework of the instructions. Another variation is that the inquiry is asked to consider a given solution and then, regardless of whether the inquiry recommends the solution or not, to submit a legislative proposal that achieves that solution. Both in the texts produced within the framework of an inquiry and, subsequently, in the responsible ministry, a key element is to report the reasons as to why legislation is considered necessary. The purpose of the legislation is usually more clearly stated in such texts than in the legislative text itself. To state the purpose of a legislative act in one of its provisions is atypical in the Swedish legislative tradition, but in recent years it has become somewhat more common, among other things, as a result of the influence of how EU legislation is usually designed. The Legislative Council’s review of government bills includes assessing whether the proposed statutory regulation can be assumed to achieve the aims of the legislation. The aims of a piece of legislation therefore need to be clarified before review by the Legislative Council, as the Council passes judgment on the merits of the efficaciousness of the legislation.

474  Johan Danelius and Cyril Holm A fundamental question in this context is for what purposes legislation can be used. In this respect, Sweden does not differ from how one generally looks at the functions and objectives of legislation. Thus, Swedish legislation is used to provide protection for individuals and guarantee social functions. It also serves to contribute to individuals not being subject to crime. Another function of legislation is to create predictability in trade and business. The Swedish tradition is that laws must be effective in practice, in that they are assumed to be used in practical social and legal life.

29.4.  Drafting Technique (Structure, Systemisation, Numbering, Language and Style) Of course, the content and design of legislation is part of what Parliament, as the legislative branch of the constitutional system, has the ultimate responsibility for. But in preparing for Parliament’s final decision on a bill, many functions and individuals – politicians as well as civil servants – participate. In addition to the political activity that is a given part of the legislative process, there are also elements of this process that have more to do with technology and crafts. Historically, the Nordic legal tradition has been casuistic in the legislative design of individual regulations. However, much of the legislation at the national level that is in force today is based on major legislative projects implemented during the first half of the ­twentieth century; that is, during the development and implementation of the welfare state (as it was highly impacted by Scandinavian legal realism). This applies to, for example, much of Swedish private law. Typically, this type of legislation is written to be applied to a variety of generic situations and it is a distinct feature of these regulations that the more fundamental principles are rarely clearly expressed in the legislative text. Instead, these principles may be derived from a purpose-oriented interpretation of the legislative text. Adding to this casuistic legislative tradition is the fact that Sweden, unlike many other European countries, has no comprehensive codes. The legislative framework may even be described as fragmentary with regard to central legal areas. Over time, Swedish courts have become accustomed to dealing with rules of other kinds, not least because of the entry of EU law into the Swedish legal system. There are many views on how the quality of Swedish legislation has developed over the years. Clearly, as pointed out, the legislative instrument has been an important tool for governments in the development and implementation of the Swedish welfare state. Periodically, therefore, new legislation has emerged at a rapid pace, and the development has often been guided more by the political will to reform rather than by ambitions for a legally and technically coherent regulatory system. It is therefore not surprising that over the years, considerable criticism has been directed at the political ambitions of the legislative process. It has been said that the ambitions to enforce the social changes that have been deemed necessary have, in turn, led to laws being issued at such a high rate that the quality of the legislation has suffered as a result. This criticism was particularly pronounced in connection with the major legislative reforms that were implemented in the late 1960s and early 1970s in areas such as labour law and consumer law. According to this approach, attributed mainly to the Social Democratic governments that governed at this time, the legislative tool was primarily used an instrument for achieving political goals.

Legislation in Sweden  475 An important issue when drafting a legislative text is to determine for which group of readers it should be written. This issue determines most positions on individual components of the legal text. The ambition in Swedish legislative work is that everyone who is affected by a piece of legislation ought to be able to understand it. Of course, who is the target of a piece of legislation depends on what the law is about. Yet, as has been pointed out, the intention is for a piece of legislation to be understandable not only by the courts, public authorities and businesses that have to apply it, but also by individual citizens. Laws and regulations also function as role models, and the language used influences the language used by administrative agencies in decisions, forms etc. The intelligibility of legal texts is understood as a key aspect of the democratic legitimacy of legislation. A piece of legislation is preceded by a preamble, indicating the law’s implications from a formal point of view. If it is a new piece of legislation, the preamble is concise and without material content. If it is a question of repealing or amending older legislation, the preamble must state which paragraphs are to be repealed or amended. Other examples of what can be included in the preamble are continued validity of a time-limited statute or amendments of the entry into force and transitional provisions that applied to a previously enacted regulation. It should be noticed that preambles to Swedish legislation do not contain any equivalent to such explaining texts that typically occur in the preambles of EU legislation. However, in lengthy Swedish legislation, one of the first paragraphs often contains a description of the content of the law.

29.5.  Monitoring and Evaluation of Laws In the Swedish system, there is judicial review of enacted legislation (ex post) as well as of prospective legislation (ex ante). While the first task lies with the courts, the ex ante judicial review of prospective legislation is carried out by the Legislative Council as part of the above-described legislative process. In addition, there are a number of mechanisms for evaluating legislation.

29.5.1.  The Legislative Council The Legislative Council consists of judges from the Supreme Court and the Supreme Administrative Court. Other persons – eg, recently retired members of these courts – can also be appointed to be included on the Council. The Legislative Council examines bills that have been decided by the government or a parliamentary committee. The Council should normally also be consulted on proposals for amendments to the parts of the Constitution that concern freedom of the press and the freedom of expression in certain media, as well as legislation that affects the rights and freedoms of individuals, their personal and economic circumstances or their obligations to the state. There is no absolute obligation to submit a prospective piece of legislation to judicial review by the Legislative Council. For instance, it is possible for the government to refrain from referring a prospective legislative act to the Legislative Council if the issue dealt with in a bill is such that the hearing of the Council would either be irrelevant or if a hearing delays the legislative process in such a way that risks harmful consequences for

476  Johan Danelius and Cyril Holm the issue at hand. In practice, exemptions from judicial review by the Legislative Council are made with regard to uncomplicated bills where it is clear that a review by the Council is unnecessary. It is very rare for the government to refrain from referring an act to the Legislative Council exclusively on the ground of the urgent nature of the case. If the government proposes that Parliament enact legislation on issues that ought to be heard by the Legislative Council, but has not in fact been reviewed by the Council, the government shall report the reasons for this to Parliament. However, the fact that the Legislative Council has not been consulted on a bill does not formally prevent the law from being enacted. Judicial review by the Legislative Council shall pertain to: (1) (2) (3) (4) (5)

how the bill relates to the Constitution and the legal order in general; how the draft regulations relate to each other; how the proposal relates to the requirements of legal certainty; if the bill is so designed that the law can be assumed to satisfy its stated purposes; problems that may arise when enacted.12

The Legislative Council often has reason to pass judgment on whether a proposed piece of legislation is compatible with EU law or the European Convention on Human Rights. The prospective legislation is presented to the Legislative Council by civil servants from the ministries that have been active in drafting the legislation or, when a review is requested by a parliamentary committee, by officials from the committee offices. The Legislative Council’s reviews are public and are published as part of a government’s bill to Parliament or, if applicable, in parliamentary committees’ reports. In a government bill, it should be made clear how the Council’s opinions have affected the design of the final legislative proposals. The task of the Legislative Council is to examine legislative proposals from a legal rather than a political point of view. To put it crudely, it may be said that with the Legislative Council, the two main principles of Swedish government – the principles of democracy and legality – are set against each other. However, the boundary between what is law and what is politics is not always easily identified. A review on how a proposed bill would affect the legal order in general or the requirements of legal certainty, for example, can hardly be done without a certain measure of judicial policy assessment. Most often, the Legislative Council’s review is of such a nature that it does not affect the basic prerequisites for implementing a government bill. Nonetheless, it does happen that the Council rejects or seriously questions a bill. Roughly between 10 and 20 per cent of bills are rejected or seriously questioned by the Council.13 The government is not obliged to take on board the critique from the Legislative Council, and in practice to what extent it does so varies. If the government makes a different assessment of a prospective legislation from the Council, the reasons for this must be reported.14 The courts are similarly not bound by the Council’s assessment of individual bills. While the Council cannot nullify a bill, the analysis of the Council of its compatibility with the Constitution carries considerable weight when a court is required to take a position on the same issue.

12 See,

ch 8, s 22 of ‘The Instrument of Government’. the report from the Committee on Constitutional Affairs, 2018/19:KU10, 45. 14 See further Bertil Bengtsson, ‘Departementen och Lagrådet’ (2009) Svensk Juristtidning 216. 13 See

Legislation in Sweden  477

29.5.2.  Judicial Review by the Courts There is no constitutional court in Sweden. However, all courts are under an obligation to examine the compatibility of legal rules with other legal rules occupying a superior position in the hierarchy of norms. Earlier, the requirement was that a legal rule could only be set aside in cases where it was obviously in conflict with the Constitution. For some years now, there is no such requirement. Instead, the judicial review provision in the Constitution contains a reminder that the basic principles of democratic sovereignty and legality, along with the hierarchical system of norms that make up the legal system, must be taken into account in a judicial review of a law adopted by Parliament. Therefore, in the Swedish context, judicial review primarily means that a Swedish court must not apply a provision which it finds to be contrary to the Constitution. In addition to material incompatibility with a certain constitutional provision, the legal examination can be considered ‘if a stipulated statutory order has in any material respect been breached when drafting and implementing the provision’.15 However, when applying this paragraph, it shall, in the case of the examination of a law, ‘especially be taken into account that Parliament is the people’s foremost representative’.16 Judicial review in this way takes aim at everything that can be attributed to the ‘statutory order’ in the legislative process. This refers primarily to the division of competences between different decision-making bodies and the internal decisionmaking methods, such as when the government has regulated a question that requires a decision by Parliament,17 or where Parliament has made decisions by a majority vote on an issue that requires a qualified majority. Other errors in the statutory order for the legislative process are also covered by judicial review. However, a limitation in Swedish judicial review process lies in the fact that the statutory order of the legislative process must have been violated in some ‘essential respect’ in order for the regulation to be set aside by the review. The power of judicial review is not centralised to a particular agency or court. Instead, all courts and government agencies involved in administering the law must, if there are good reasons for it, test the compatibility of a legal provision with the wider hierarchy of norms. Nevertheless, judicial review is limited in the sense that it applies only in a specific ongoing case in which there is a question about whether a norm is contrary to a higher norm. The judicial review of the courts is very practical in this sense; it is limited to cases where the question of the incompatibility of the law with the Constitution arises in connection with a specific application of the law in a case being settled in court. Only the parties to the case are formally covered by the result of the judicial review; the judicial review is in fact limited to the rejection of the application of a specific legal rule in a specific case, on the ground that it is inconsistent with a provision in the Constitution. However, the court cannot annul the statutory provision or otherwise limit its general application. Judicial review has been deemed to be particularly important in relation to rights of the individual as put forward in Chapter 2 of the part of the Constitution entitled ‘The Instrument of Government’. The same goes for rights under the European Convention on Human Rights. According to Chapter 2, paragraph 19 of ‘The Instrument of Government’: ‘A law,



15 Chapter 16 ibid. 17 cf

11, s 14 of ‘The Instrument of Government’.

Supreme Court case (NJA) 1996, 370.

478  Johan Danelius and Cyril Holm or other regulation … must not be in breach of Sweden’s commitments under the European Convention for the Protection of Human Rights and Fundamental Freedoms.’ This means that Swedish judicial review also includes examining whether a Swedish law violates the provisions of the European Convention, in which case the European Convention overrides the Swedish law. The relationship between the Swedish judicial review process and EU law is not as clear. In most court cases where the compatibility of Swedish law with EU law has been questioned, the courts have referred to the principle of the primacy of EU law rather than to constitutional judicial review.

29.5.3.  Evaluation and Follow-up In addition to the control that takes place through the Legislative Council and the judicial review process, the legislator sometimes also seeks to monitor and evaluate legislation on its own initiative. There are various forms and methods for such follow-ups. Sometimes a committee or investigator is instructed to evaluate a certain piece of legislation after it has been in force for some time. Such an assignment is often combined with the task of presenting proposals for legislative changes if the evaluation shows that there is a need to do so. Evaluation of the legislation can also be done by the department responsible for drafting the legislation. Evaluation assignments may also be carried out by the administrative agency deemed fit to do so. Within the area of criminal justice, the Crime Prevention Council (Brottsförebyggande rådet (BRÅ)) makes continuous evaluations. The Swedish Agency for Public Management (Statskontoret), which is the government’s investigation and evaluation agency, evaluates legislation in the context of its mission to provide a basis for the review, development and streamlining of government agencies and state-financed activities. Parliament’s body for reviewing state operations, the Swedish National Audit Office (Riksrevisionen), can also follow up on legislation on the basis of its task of examining what the state’s money is used for, how it is reported and how efficiently it is used.

29.6.  Training for Law Drafters Many people are involved in developing a new piece of legislation. Even though politicians make decisions about new legislation and lead the political negotiations that precede such decisions, much of the day-to-day work is carried out by non-political officials of various kinds. Key players in this work are the investigators appointed by the government with the mandate to develop draft legislation, the secretaries linked to inquiries into new legislation and the civil servants dealing with draft legislation in the ministries. When it comes to extensive or complicated legislation, it is common practice that former judges act as investigators. Investigation secretaries and the civil servants who work in the ministries are often judge-trained lawyers. Traditionally, it has been a career path to work with the legislative process in the government ministries before taking on a position as a full-time judge in a court. A relatively large proportion of the judges in the highest courts have at some stage of their legal careers served in ministries. Within the government offices, courses in legislative writing are offered, where typically the inexperienced administrators are tutored in legislative drafting by the more experienced.

Legislation in Sweden  479 In the Ministry of Justice, for example, legislative drafting is usually done in collaboration between one or more junior legal advisers, the senior civil servants supervising the work and the Director General for Legal Affairs. It is practice that a proposal ought not to be presented to the politically appointed decision-makers within the ministry unless it has been processed through all these levels of non-political officials. This ensures the quality of the legislative process, but the working method also creates the conditions for knowledge and experience to be passed on to new generations of legislators. In support of those who work with legislation in the ministries, there is a special audit office in the Cabinet Office. The audit office examines, among other things, draft legislative advice and bills based on a quality assurance perspective, both in terms of language and formalities. The office also provides information material, writing advice, checklists etc, and offers training and support in the form of workshops for law-drafters. During such a workshop, individual guidance is given in an ongoing legislative project, eg, on constitutional matters and in the writing itself. Legislative issues are also being dealt with in forums outside the government ministries. These issues have recently attracted more interest in legal science and are treated, albeit relatively sparingly, in the Swedish legal doctrine.18

29.7.  Concluding Remarks: The Swedish Welfare State in Relation to the Legal System and the Process of Legislation The moral impulse behind any welfare state is that those who face adverse conditions ought to be supported by society at large. This ambition has determined the legislative work in the Swedish welfare state. In effect, this leads to a direction away from tort and individual liability and towards insurance and risk-sharing. It has further implied legislated welfare state solutions to issues traditionally addressed by private law.19 The Swedish welfare state is well known, but it is a less-recognised fact that Scandinavian legal realism was a key influence on its development. The standard story is that the Keynesian economics of the Stockholm School of Economics supplied the tools needed for the realisation of the welfare state. However, Scandinavian legal realism provided another key instrument for the social engineering and practical realisation of the welfare state – namely, legislation as a political tool for social change.20This view is mirrored in the dominance of the executive and legislative branches in the Swedish constitutional system – and the relative weakness of the judicial branch of government – in the Swedish legal system. Of course, the range of purposes for which it is permissible to legislate in the Swedish legal system has been influenced by the ambitions of the welfare state. Depending on which theory of normative ethics one adheres to – be it utilitarianism, a rights-based theory, a contract theory or some other normative ethics – varying purposes are permissible when 18 See, eg, Jan Hellner, Lagstiftning inom förmögenhetsrätten (Stockholm, Juristförlaget, 1990); Peter Wahlgren, Lagstiftning: Rationalitet, teknik, möjligheter (Stockholm, Jure, 2014); and Cyril Holm, ‘F. A. Hayek’s Critique of Legislation’ (dissertation, Department of Law, Uppsala, 2014). 19 For an outline of this story, see Cyril Holm, ‘Bearing and Sharing Risk in the Swedish Welfare State’ in Matthew Dyson (ed), Regulating Risk through Private Law (Cambridge, Intersentia, 2018). 20 ibid.

480  Johan Danelius and Cyril Holm legislating. For lawyers, a rights-based normative ethics often seems natural, simply because law is built on a long tradition of legal rights. However, as industrialism developed, the view of legislation as an instrument for addressing social questions emerged. Such legislative endeavours were to be based on a utilitarian normative ethics: legislate in such a way that the net happiness is maximised. Of course, there is an inherent conflict between a rights-based normative ethics and a utilitarian normative ethics, in that in order to achieve a virtuous net effect in welfare terms, it may be necessary to violate rights.21 The dividing line between the Swedish political right and political left in legislative matters has often been drawn in terms of these permissible purposes of legislation. Although the wider political spectrum in Sweden has broadly been in agreement on the welfare state project as such, the political right has maintained a level of sensitivity in relation to rights, while the political left has had a more pronounced sensitivity in relation to social injustice. Of course, this has been reflected in the legislative purposes deemed permissible. That said, the overarching structure of the Swedish legislative process is nonetheless aligned with a welfare state project as based on a utilitarian normative ethics.

Further Reading B Bengtsson, ‘Departementen och Lagrådet’ (2009) Svensk Juristtidning 216–55 J Danelius and K Bynander, ‘Det nordiska juristsamarbetet’ (2018) Svensk Juristtidning 1–14 J Danelius, E Sjöman and R Skog, ‘Country Report – Sweden’ in C Gerner-Beuerle, F Mucciarelli, E-P Schuster and M Siems (eds), The Private International Law of Companies in Europe (Munich, CH Beck/Hart Publishing/Nomos Verlagsgesellschaft, 2019) 721–28 J Hellner, Lagstiftning inom förmögenhetsrätten (Stockholm, Juristförlaget, 1990) C Holm, ‘F. A. Hayek’s Critique of Legislation’ (dissertation, Department of Law, Uppsala, 2014) ——. ‘Bearing and Sharing Risk in the Swedish Welfare State’ in Matthew Dyson (ed), Regulating Risk through Private Law (Cambridge, Intersentia, 2018) 323–45 KÅ Modéer, ‘Jurister på politikernas arenor’ (2011) Svensk Juristtidning 735–52 R Nozick, Anarchy, State, and Utopia (New York, Basic Books, 1974) C Ramberg, ‘Avtalsrätten och rättskällorna med passivitet som illustration’ (2019) Svensk Juristtidning 272–81 J Rawls, A Theory of Justice, revised edn (Cambridge, MA, Harvard University Press, 1999) H Strömberg, Normgivningsmakten enligt 1974 års regeringsform (Lund, Juristförlaget, 1999) S Strömholm, Rätt, rättskällor och rättstillämpning (Stockholm, Norstedts, 1996) P Wahlgren, Lagstiftning: Rationalitet, teknik, möjligheter (Stockholm, Jure, 2014) F Wersäll, ‘En offensiv Högsta domstol: Några reflektioner kring HD:s rättsbildning’ (2014) Svensk Juristtidning 1–8 K Zweigert and H Kötz, Introduction to Comparative Law, 3rd edn, Tony Weir (trans) (Oxford, Clarendon Press, 1998)

21 For classical expositions of this conflict, see John Rawls, A Theory of Justice, revised edn (Cambridge, MA, Harvard University Press, 1999); and Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

30 Legislation in Switzerland STEFAN HÖFLER, MARKUS NUSSBAUMER AND FELIX UHLMANN

Context Switzerland has a multi-lingual, multi-layered civil law system. Its current legal system was established in 1848, when the modern Swiss state was founded, and has been further developed since then. Swiss legislation has come to be shaped by three basic constitutional tenets: federalism, direct democracy and separation of powers.1 Individually and together, these tenets have created unique political necessities and legislative traditions.

30.1. Layers Swiss legislation is layered hierarchically into federal, cantonal and communal law, each of which is in turn layered into a constitution, primary legislation (acts of Parliament) and secondary legislation (ordinances). This layering reflects the roles that (a) the different levels of government (the confederation, cantons and communes), (b) the people and (c) the three branches of government (the legislature, executive and judiciary) play in Swiss legislation.

30.1.1.  The Confederation, Cantons and Communes Switzerland is a federal state. Article 1 of its Constitution2 stipulates that the Swiss Confederation is formed by ‘the People and the Cantons’.3 In 1848, Switzerland turned from a loose confederation into a federal state. Nevertheless, the cantons have retained a strong

1 cf P Egli, Introduction to Swiss Constitutional Law (Zurich, Dike, 2013); W Haller, The Swiss Constitution in a Comparative Context, 2nd edn (Zurich, Dike, 2016); A Misic and N Töpperwien, Constitutional Law in S­ witzerland, 2nd edn (Bern, Stämpfli, 2018); M Thommen (ed), Introduction to Swiss Law (Berlin, Carl Grossmann, 2018). 2 Federal Constitution of the Swiss Confederation of 18 April 1999 (SR 101). 3 The Swiss Confederation consists of 26 cantons: Zurich, Bern, Lucerne, Uri, Schwyz, Obwalden and ­Nidwalden, Glarus, Zug, Fribourg, Solothurn, Basel-Stadt and Basel-Landschaft, Schaffhausen, Appenzell Ausserrhoden and Appenzell Innerrhoden, St Gallen, Graubünden, Aargau, Thurgau, Ticino, Vaud, Valais, Neuchâtel, Geneva and Jura.

482  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann position within Switzerland’s constitutional framework: they are ‘sovereign except to the extent that their sovereignty is limited by the Federal Constitution’ and they ‘exercise all rights that are not vested in the Confederation’ (Article 3 of the Federal Constitution). The Confederation is obliged to ‘leave the Cantons sufficient tasks of their own and respect their organisational autonomy’ (Article 47, para 2 of the Federal Constitution). The cantons, in turn, ‘shall implement federal law in accordance with the Federal Constitution and federal legislation’ (Article 46, para 1 of the Federal Constitution). The Confederation typically legislates on issues such as foreign relations, defence, the economy, civil and criminal law (and recently also procedural law), nuclear energy, telecommunications and social security, while the cantons remain responsible for issues such as education, religion and police, health and social benefits. The Confederation and the cantons are jointly responsible for legislation in areas such as public transport, road infrastructure and the environment (cf Articles 54–135 of the Federal Constitution). Where there is joint responsibility, the Confederation may typically enact the general legal framework, but may leave it to the cantons to implement it and refine the details. To achieve greater harmonisation in Swiss law, the Confederation increasingly interferes with areas that have traditionally been the sole responsibility of the cantons (cf, eg, Article 61a of the Federal Constitution with regard to education). However, the cantons may also strive for such harmonisation themselves, namely by entering into agreements with each other and establishing common organisations and institutions (Article 48 of the Federal Constitution). Thus, they create an intermediate level of government located somewhere between the level of the Confederation and the level of the individual cantons.4 Beneath the cantons, there is yet another level of government: the communes. The Federal Constitution guarantees the autonomy of the communes ‘in accordance with cantonal law’ (Article 50, para 1). The Swiss communes are legal entities in their own right and are equipped with their own legislature in the form of a communal parliament or town hall meetings. They may enact their own laws to the extent that they are authorised to do so by cantonal law. This fourfold division of competence between the Confederation, the inter-cantonal institutions, the cantons and the communes leads to a multi-layered legal system, where, in many cases, legal sources from all levels of government will have to be considered when a specific legal question needs to be resolved.5 Such a system creates specific challenges for legislative drafting: it is crucial that any new laws accurately implement all relevant higher-level legislation and that they are themselves amenable to implementation at the next lower level of government. At the same time, it also creates opportunities: the cantons and the communes effectively serve as ‘legislative laboratories’ where different approaches to common problems may be implemented and compared.6

4 cf Egli (n 1) 51–52; Haller (n 1) 87–91; Misic and Töpperwien (n 1) 157–59. 5 In addition, international law (issued by organisations such as the United Nations (UN), the Organisation for Economic Co-operation and Development (OECD), the World Trade Organization (WTO) and particularly the EU) has recently increased both in terms of reach and volume. It has effectively come to form a very substantial fifth level of government, although one over which Switzerland has only very limited influence (cf section 30.3.3). 6 For the qualitative differences in cantonal legislation, see F Uhlmann, ‘Wer hat und wer macht wie viel? – Rechtsbestand und Rechtsetzungsaktivität in den Schweizer Kantonen’ (2017) 2 LeGes 371.

Legislation in Switzerland  483

30.1.2.  The People Switzerland’s Federal Constitution provides three major instruments through which the people can participate in legislation: consultation, referendum and popular initiative. Similar means of participation exist at the cantonal and communal levels of government.7 Of these three instruments, consultation is the weakest: ‘The Cantons, the political parties and interested groups shall be invited to express their views when preparing important legislation or other projects of substantial impact as well as in relation to significant international treaties’ (Article 147 of the Federal Constitution). In other words, the government is obliged to ask the public for their opinions, but it is not bound by these opinions. A stronger instrument is provided by the referendum, which, depending on the issue, is either mandatory or optional. Under the mandatory referendum, amendments to the Federal Constitution and accessions to organisations for collective security or to supranational communities must be put to the vote of the people and the cantons, ie, they need to be approved both by the people of Switzerland as a whole and by a majority of the people of its 26 cantons (Article 140 of the Federal Constitution). Under the optional referendum, any federal act, certain federal decrees and all important international treaties must be submitted to a vote by the people (but not the cantons) if any 50,000 persons eligible to vote or any eight cantons request it within 100 days of the official publication (Article 141 of the Federal Constitution). The referendum thus equips the people with the power to veto legislation if they do not agree with it. Finally, the strongest means of participation is provided by the instrument of the popular initiative: any 100,000 persons eligible to vote may request an amendment of the Federal Constitution, which must be put to the vote of the people and the cantons (Article 139 of the Federal Constitution). Thus, the people not only comment and decide on legislation, but they may also initiate and draft it (cf section 30.2.1). However, this last instrument is limited to constitutional amendments, which is one of the reasons why the Swiss Constitution occasionally contains provisions that from the perspective of legislative theory would rather belong in an act of parliament or even just an ordinance. The fact that the Swiss people have the right to be consulted, to veto and even to initiate legislation has had a substantial impact on its political institutions as well as its legislative process and techniques. Among other things, it has forced all major political parties to work together, as any one of them would easily be able to block a legislative project by means of a referendum or jeopardise a legislative programme through popular initiatives. As a result, Switzerland has gradually evolved into a consensus democracy where all major political forces are integrated into the government. Naturally, the need to reach consensus and participation of the people also slows down the legislative process: in Switzerland, it typically takes several years to get from the initiation of a legislative project to the enactment of a new law. However, this slowness has the advantage that the result is usually broadly accepted. Finally, the fact that a bill will have to pass the test before the people creates a strong incentive to make sure that the people will actually be able to understand what it says;

7 cf Haller (n 1) 236–41, 244–45; Misic and Töpperwien (n 1) 58–59, 75–85. For participation in general, see F Uhlmann and C Konrath, ‘Participiation’ in U Karpen and H Xanthaki (eds), Legislation in Europe: A Comprehensive Guide for Scholars and Practitioners (Oxford, Hart Publishing, 2017) 73–95.

484  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann it is thus one of the reasons why Switzerland has developed a strong tradition of drafting its laws in plain language.

30.1.3.  Legislature, Executive and Judiciary The Swiss Parliament, the Federal Assembly, consists of two chambers: a house of representatives, the National Council, and a senate, the Council of States. The National Council is composed of 200 representatives of the people. The representatives are elected directly by the people according to a system of proportional representation, with a general election being held every four years. Each canton constitutes an electoral constituency. The seats are allocated to the cantons according to their relative populations. The Council of States is composed of 46 representatives of the cantons.8 The cantons are free to determine the rules for the election of their representatives to the Council of States. Currently, all cantons elect their representatives by popular vote. Thus, the members of the Swiss Council of States are not emissaries of the cantonal governments like the members of the German Bundesrat;9 rather, they represent their cantons in the way that US senators represent their states. In contrast to the US Congress, after which they were originally modelled, the two chambers of the Swiss Federal Assembly have exactly the same rights and duties. In particular, any bill must gain the approval of both chambers in order to be enacted. Together with the instruments of direct democracy, this equality of the two chambers of the Swiss Parliament is one of the main reasons why, in comparison to other countries, Switzerland’s legislative process is relatively slow. The Swiss executive, the Federal Council, is a college of seven equal members. The members of the Federal Council are elected individually by the Federal Assembly following each general election to the National Council. The President of the Confederation is chosen annually from among the members of the Federal Council. However, the position is mostly ceremonial; there is no head of government and no individual head of state. By convention, all major political parties are represented in the Federal Council, without there being a ‘grand coalition’ in the proper sense of the word. There is no coalition agreement between the parties and thus the government can also not ‘fall apart’. The Federal Council is relatively independent of parliament. In contrast to, for example, Germany or the UK, the members of the Swiss executive cannot be Members of Parliament at the same time; like the US, Switzerland has adopted a strict interpretation of the separation of powers. By convention, Federal Councillors are re-elected for however long they decide to stay in office.10 Once elected, they cannot be removed from office for the duration of their term: Switzerland’s Constitution does not provide for a vote of no confidence. Moreover, the failure of a bill before Parliament or in a referendum does not threaten the stability of the government: the Swiss executive does not usually (and indeed does not have

8 For historical reasons, the cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden each elect one representative and all other cantons two (cf art 150, para of the 2 Federal Constitution). 9 cf ch 12 in this volume. 10 Since its foundation in 1848, only four (out of 119) members of the Federal Council have not been re-elected.

Legislation in Switzerland  485 to) resign over a lost vote. In turn, this also means that Parliament is relatively independent of the executive. The Federal Assembly interferes heavily in legislative projects presented to it by the executive (cf section 30.2.3). The Swiss judiciary, headed by the Federal Supreme Court, may only provide very limited constitutional review. Article 190 of the Federal Constitution stipulates that ‘[t]he Federal Supreme Court and the other judicial authorities apply the federal acts and international law.’ Thus, the Federal Supreme Court is obliged to apply federal acts even if it deems them unconstitutional. The rationale behind this provision is to be found in the aforementioned instruments of direct democracy. Because there is always the option of a referendum, federal acts come with the explicit or tacit consent of the people. Article 190 of the Federal Constitution prevents the supposedly paradoxical situation whereby a court, on constitutional grounds, rescinds a federal act that the people, ie, the very source of the Constitution, considered to be in keeping with that Constitution. To date, all attempts – both parliamentary and by means of popular initiative – to change or abolish this article have failed.11 As a consequence, constitutional review only extends to secondary federal legislation and to cantonal law – and, as strange as it seems, even these must be upheld if their alleged unconstitutionality originates from a federal act or international law.12 The limited constitutional review qualifies the role of the Constitution as the defining framework for legislation. The Constitution defines the key elements of the legislative process. It is also due to the Constitution that Parliament is occasionally obliged to pass laws against its own will, namely when it must implement constitutional amendments originating from popular initiatives that it had rejected. Still, the Swiss Parliament is relatively free in terms of how to approach a legislative problem. Whereas in Germany, the Constitutional Court has struck down acts of Parliament, eg, for lack of sufficient gathering of facts, Swiss federal acts are beyond such control, and the Swiss Federal Supreme Court is also rather lenient on the cantons in this regard. Effectively, it is Parliament that has the last say on the constitutionality of its own acts. However, such power is not only a privilege but also a burden. It may help explain certain elements of the legislative process, such as the preliminary constitutional review of all bills during the drafting process. One may even contend that Article 190 of the Federal Constitution has fostered a tradition of diligent law-making, where the preparatory work carried out by the administration is intended to compensate for the lack of an ex post facto constitutional review by the courts.13

30.2. Process Depending on the tier of legislation involved (Constitution, act of parliament or ­ordinance), the Swiss legislative process consists of up to five phases: (a) initiation; (b) drafting; (c) parliamentary deliberation; (d) referendum, commencement and publication; and 11 cf Y Hangartner and ME Looser, ‘Art. 190’ in B Ehrenzeller, B Schindler, RJ Schweizer and KA Vallender (eds), Die schweizerische Bundesverfassung: St. Galler Kommentar, 3rd edn (Zurich, Schulthess, 2013) 3049–50. 12 However, the Federal Supreme Court may scrutinise federal legislation under the European Convention on Human Rights (ECHR), which has led – at least in part – to some kind of ‘substitute’ constitutional review. 13 cf Federal Council Dispatch of 5 March 2010 on Strengthening Preventive Constitutional Review (BBl 2010 2187), available at: www.admin.ch/opc/de/federal-gazette/2010/2187.pdf.

486  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann (e) evaluation.14 In what follows, we describe the legislative process of the Confederation; similar processes apply at the cantonal and communal levels of government.

30.2.1. Initiation Constitutional amendments may be introduced by way of legislation or by means of a popular initiative. In the former case, the process is the same as for federal acts (see below), except for the fact that constitutional amendments are subject to a mandatory rather than an optional referendum. In the latter case, any 100,000 persons eligible to vote may request that the Constitution be amended; the respective signatures must be collected within 18 months of the official publication of the initiative. In theory, popular initiatives may either take the form of a specific bill or of a general proposal to be turned into a specific bill by Parliament (Article 139 of the Federal Constitution). In practice, almost all popular initiatives are submitted in the form of a specific bill. Initiators are usually suspicious of Parliament and prefer to retain control over the content of their proposal. Popular initiatives must comply with the requirements of consistency of form, and of subject matter, and must not infringe upon any mandatory provisions of international law. The Federal Assembly must declare an initiative to be invalid in whole or in part if it fails to meet these requirements (Article 139, para 3 of the Federal Constitution). Apart from such invalidation, neither Parliament nor any other authority may change the text of a popular initiative once it has been submitted, not even the initiators themselves. Thus, the text of the constitutional amendment is final even before the first signature has been collected and the political discussion has begun. The Federal Assembly may decide to draft a counter-proposal to be put to the vote together with a popular initiative. In the referendum, the people may vote in favour of both proposals; in response to the third question, they may indicate the proposal that they prefer if both are accepted (Article 139b of the Federal Constitution). Like all constitutional amendments initiated by Parliament, counter-proposals are prepared by way of legislation. Alternatively, the Federal Assembly may prepare an indirect counter-proposal in the form of a federal act rather than a constitutional amendment. In this case, the initiators may withdraw their popular initiative under the express condition that the indirect counter-proposal is not rejected in a referendum (Article 73a, para 2 of the Political Rights Act).15 The preparation of federal acts may be initiated by the Federal Council, by Parliament or by a canton. It may be triggered, among other things, by the need to implement a newly adopted constitutional amendment. The Federal Council has a general right to draft bills and submit them to Parliament (Article 181 of the Federal Constitution). Most legislative projects are initiated in this way. However, bills may also be prepared and introduced by a parliamentary committee (a so-called parliamentary initiative). This option has recently gained traction, with Parliament increasingly trying to curtail the influence of the Federal Council. In addition, any Member of Parliament, any parliamentary group and any canton may propose that parliament pass legislation on a certain matter. If the Federal Assembly



14 cf

M Thommen, ‘Swiss Legal System’ in Thommen (n 1) 27–30. Act on Political Rights of 17 December 1976 (SR 161.1).

15 Federal

Legislation in Switzerland  487 agrees, it tasks the Federal Council (in the case of parliamentary motions) or a parliamentary committee (in the cases of parliamentary and cantonal initiatives) with drafting a bill. The executive issues ordinances where a federal act requires further implementation and where the legislature has delegated the right to legislate on a minor issue to the executive (cf Articles 164 and 182 of the Federal Constitution). Ordinances may be issued by the Federal Council, a Federal Department (ministry), a Federal Office or another government agency provided they have the authority to do so under the Constitution or the law. The drafting of ordinances follows the same procedure as the drafting of federal acts, but in contrast to federal acts, ordinances are not submitted to Parliament and they are not subject to a referendum. However, there is an ongoing debate as to whether Parliament should be given more influence over the content of ordinances, eg, whether it should be equipped with a right to veto them.16 Even under current law, the Federal Council is already obliged to provide an explanation if it submits a bill to Parliament that delegates legislative powers to the executive, and Parliament may request draft ordinances in order to assess the consequences of such delegations.

30.2.2. Drafting Swiss federal legislation is usually drafted by the administration. Even if a bill is formally prepared by a parliamentary committee, the administration is usually tasked with the actual drafting of the text. The drafting phase of the legislative process falls into three stages: (a) the preparation of a preliminary draft; (b) the consultation of the public; and (c) the preparation of a final draft.

30.2.2.1.  Preliminary Draft New legislation is conceptualised and composed in the government office responsible for the policy area concerned. Switzerland has adopted a de-centralised model of legislative drafting, ie, the drafts are prepared not by specialised legislative drafters, but by domain experts familiar with the subject matter at hand. There are pros and cons to such a model: The advantage of a model where drafting is a general, decentralised function is that it facilitates the exchange of information between those in charge of drafting the law and those applying it. Domain knowledge and practical experience can easily be accessed at all stages of the drafting process. As domain specialists are in charge of drafting, special emphasis is given to the applicability of the new legislation and its compatibility with current practice. The main disadvantage is that domain specialists are usually less familiar with the techniques of formal legistics and the principles of plain-language writing than professional drafters. They are also more prone to getting tangled up in matters of policy; as a result, general legal constraints may be neglected and the authors may fail to adopt the perspective of the target audience and thus infringe on the clarity of the law.17

To remedy some of the disadvantages of the model, the office in charge of a draft is obliged to invite all other offices of government that may have an interest in the legislative project to

16 cf 17 S

G Müller and F Uhlmann, Elemente einer Rechtssetzungslehre, 3rd edn (Zurich, Schulthess, 2013) 270–74. Höfler, M Nussbaumer and H Xanthaki, ‘Legislative Drafting’ in Karpen and Xanthaki (n 7) 153.

488  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann comment on it (the so-called ‘consultation of offices’).18 In the course of this internal review, the draft is also examined by three centralised institutions: (a) the Federal Office of Justice checks if the draft complies with the Constitution and international law;19 (b) the Internal Drafting Committee, an inter-disciplinary body made up of language specialists and legal experts, ensures that the language used in the draft is clear and comprehensible;20 and (c) the Federal Chancellery checks if the draft adheres to the rules of formal legistics.21 These three institutions bring specialised knowledge to the drafting process: knowledge about constitutional constraints, about plain-language drafting and about the formal requirements that federal laws must fulfil.

30.2.2.2.  Public Consultation All preliminary drafts of constitutional amendments, federal acts and important ordinances (as well as important international treaties) must then be released for public consultation (Article 147 of the Federal Constitution). This procedure has ‘the aim of allowing the Cantons, political parties and interested groups to participate in the shaping of opinion and the decision-making process of the Confederation. It is intended to provide information on material accuracy, feasibility of implementation and public acceptance of a federal project’ (Article 2 Consultation Procedure Act).22 In theory, everyone can participate in this process. In practice, the instrument is mainly used by political parties, special interest groups and, crucially, the cantons. Remarks may be submitted for a period of three months. The administration analyses the responses and summarises them in a report.23 The feedback provided by the participants of a public consultation has no binding effect. The purpose of a public consultation is merely to test the political feasibility of a legislative project. It enhances the transparency of the legislative process at an early but important stage. The information gathered adds to the fact-finding and practicability assessment of the project. If both the cantons as well as private organisations state that the draft bill would be difficult to implement or would cause unnecessary administrative burdens, such remarks are usually taken seriously. Still, public consultation does not produce scientific evidence: it is neither an expert opinion nor a poll. Participation in a public consultation may be distributed rather asymmetrically: the opinion of certain lobbying groups in particular may be over-represented in the responses returned to the administration. This needs to be

18 cf ibid 157 f. 19 cf Federal Council Dispatch on Strengthening Preventive Constitutional Review (n 13). 20 cf M Nussbaumer, ‘Der Verständlichkeit eine Anwältin! Die Redaktionskommission der ­schweizersichen Bundesverwaltung und ihre Arbeit an der Gesetzessprache’ in KM Eichhoff-Cyrus and G Antos (eds), V ­ erständlichkeit als Bürgerrecht? Die Rechts- und Verwaltungssprache in der öffentlichen Diskussion (Mannheim, Duden, 2008) 230–43; S Höfler, ‘Gute Gesetzessprache aus dem Blickwinkel der Verwaltung: Die R ­ edaktionskommission der schweizerischen Bundesverwaltung’ in F Uhlmann and S Höfler (eds.), Gute Gesetzessprache als Herausforderung für die Rechtsetzung (Zurich, Dike, 2018) 65–100. 21 cf T Sägesser, ‘Gesetzgebung und begleitende Rechtsetzung: Zuständigkeitsabgrenzung zwischen Bundeskanzlei und Bundesamt für Justiz’ (2008) 7 AJP 901; Schweizerische Bundeskanzlei, Gesetzestechnische Richtlinien (Bern, 2013), available online (in German, French and Italian) at: www.bk.admin.ch > Dokumentation > Rechtsetzungsbegleitung > Gesetzestechnische Richtlinien (GTR). 22 Consultation Procedure Act of 18 March 2005 (SR 172.061). 23 All planned, running and completed consultations can be inspected online (in German, French and Italian) at: www.admin.ch > Bundesrecht > Vernehmlassungen.

Legislation in Switzerland  489 taken into consideration when the results are analysed. In general, the more likely it is that respondents will defeat a project in a referendum, the more seriously they are taken.

30.2.2.3.  Final Draft The analysis of the comments from the public consultation lead to revision of the draft (or its abandonment). During this process of consolidation, a second round of internal review (consultation of offices) is carried out and the draft is examined once again with regard to its constitutionality, clarity and adherence to the rules of formal legistics. After this second round of internal review, the draft is finalised and submitted for approval to the Federal Council, the parliamentary committee or, in the case of subordinate ordinances, the Federal Department, Federal Office or other government agency in charge. For ordinances, this is the end of the legislative process – they are enacted and published, whereas drafts of constitutional amendments and federal acts are now forwarded to Parliament. With this aim in mind, they are attached to an official dispatch or report in which the Federal Council or the parliamentary committee, respectively, explains its motivations for the respective piece of legislation, summarises the results of the public consultation, details the content of the individual provisions contained in the draft, shows that the bill complies with the Constitution and international law, and points to the likely impact the new piece of legislation will have on the cantons, the communes, the economy, the environment and society at large (Article 141 of the Parliament Act).24 The Federal Council dispatches and committee reports are important auxiliary texts that the courts may resort to if the interpretation of a provision in the respective federal act is unclear. They are published in the Federal Gazette25 and they are explicitly mentioned in the preamble of federal acts. The preamble of the aforementioned Consultation Procedure Act, for example, reads as follows: ‘The Federal Assembly of the Swiss Confederation, based on Article 147 of the Federal Constitution, and having considered the Federal Council Dispatch of 21 January 2004, decrees: …’26

30.2.3.  Parliamentary Deliberation Decisions of the Federal Assembly require the agreement of both chambers (Article 156, para 2 of the Federal Constitution). Bills are first considered by one chamber and then, if approved, are passed on to the other. Except in the case of urgency, the second chamber will only consider the bill in a subsequent session of parliament. Considerations in either chamber are organised as a two-step process: bills are first considered by the parliamentary

24 cf Schweizerische Bundeskanzlei, Botschaftsleitfaden: Leitfaden zum Verfassen von Botschaften des Bundesrates, 4th edn (Bern, 2019), available online (in German, French and Italian) at: www.bk.admin.ch > Dokumentation > Sprachen > Hilfsmittel für Textredaktion und Übersetzung > Leitfaden für Botschaften des Bundesrates. 25 The Federal Gazette is available online (in German, French and Italian) at: www.admin.ch > Bundesrecht > Bundesblatt. 26 As the text enacted by Parliament may deviate from the text described in the dispatches (see section 30.2.3), the courts may also consult the official bulletin protocolling the parliamentary deliberations, available online at: www.parlament.ch > Parliamentary business > Official bulletin.

490  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann committee in charge, which makes a recommendation, and only then by the chamber as a whole. The committee as well as any Member of Parliament may propose amendments to a bill, and either chamber may amend the bill, refer it back to the Federal Council or to the committee entrusted with its examination for review or amendment, refuse to introduce the bill in the first place or, after consideration, reject it altogether. Due to the Swiss Parliament’s relative independence from the executive (cf section 30.1.3), this is not a rare occurrence. If, following consideration of a bill, there are differences between the chambers, the divergent decisions of each chamber are referred to the other chamber for consideration until agreement is reached between the two chambers. If there are still differences following three detailed discussions in each chamber, a conciliation committee composed of select members of both chambers is appointed; this committee is tasked with proposing a compromise motion that eliminates the remaining differences in their entirety. If the compromise motion is rejected by either of the chambers, the bill is abandoned.

30.2.4.  Referendum, Commencement and Publication Constitutional amendments are subject to a mandatory referendum and federal acts are subject to an optional referendum (cf section 30.1.2). Constitutional amendments g­ enerally come into force on the day of their adoption by the people and the cantons (Article 15, para 3 of the Political Rights Act), whereas the commencement of federal acts is usually delegated to the Federal Council. Ordinarily, enactments must be published at least five days before they come into force (Article 7, para 1 of the Publications Act).27 Swiss federal law is published in two ways: in a chronological compilation,28 where the texts are published in the form in which they are enacted, and in a systematic compilation,29 where they are presented in consolidated form. If in doubt, the version of a text published in the chronological compilation is authoritative; until 2015, this referred to the paper version of the texts, but since January 2016, the electronic version published on the website of the Confederation has become authoritative (Article 15 of the Publications Act).30

30.2.5. Evaluation Article 170 of the Swiss Federal Constitution stipulates that: ‘The Federal Assembly shall ensure that federal measures are evaluated with regard to their effectiveness.’ While this provision is often mentioned in discussions of how Swiss legislation is evaluated ex post, its practical impact is moderate at best. It may act as a reminder for Parliament to take seriously its duty to aim for ‘good’ legislation, but it cannot be enforced by the Supreme Court due to Article 190 of the Federal Constitution (cf section 30.1.3). 27 Publications Act of 18 June 2004 (SR 170.512). 28 Available online at: www.admin.ch > Bundesrecht > Amtliche Sammlung. 29 Available online at: www.admin.ch > Bundesrecht > Systematische Rechtssammlung. 30 cf Federal Council Dispatch of 28 August 2013 on the amendment of the Publications Act (BBl 2013 7057), available online at: www.admin.ch/opc/de/federal-gazette/2013/7057.pdf.

Legislation in Switzerland  491 This circumstance may also explain why, so far, more recent trends in ex ante evaluation have not been applied on a regular basis in Switzerland. While the dispatch or report accompanying a bill must include a cursory assessment of its potential effects and costs (Article 141 of the Parliament Act; cf section 30.2.2.3), an in-depth ex-ante evaluation is not required. However, calls for such an evaluation (eg, regulatory impact assessment) or a limitation on legislative activity (eg sunset legislation or one-in, one-out legislation) to be installed in the legislative process have become more frequent in recent years.31

30.3. Techniques Switzerland’s constitutional set-up has also influenced its drafting techniques. Two elements in particular stand out: (a) the multi-lingualism of its legal system; and (b) Switzerland’s tradition of plain-language drafting. The latter has recently come under threat from (c) international and particularly EU law.

30.3.1. Multi-lingualism Switzerland has four national languages (German, French, Italian and Romansh), the first three of which serve as official languages of the Confederation (Articles 4 and 70, para 1 of the Federal Constitution). All federal legislation is published in German, French and Italian, and ‘the three versions are equally binding’ (Article 14, para 1 of the Publications Act).32 Federal acts (and constitutional amendments brought about by way of legislation) may originally be drafted either in German or in French, but for the first round of internal review at the latest, drafts are made available in both languages (co-revision).33 For the sake of reviewing drafts of federal acts, the Internal Drafting Committee forms working groups for four, consisting of a linguist and a lawyer of either language. The two versions of the text are revised and further developed in parallel. At the end of this process, neither language version can be considered the ‘original’ or the ‘translation’ anymore. Due to the relatively small number of Italian-speaking civil servants, the Italian version of a federal act, even though equally binding, is a mere translation of the German and the French texts. Prior to the final vote in Parliament, a special parliamentary committee, the Drafting Committee of the Federal Assembly,34 ensures, among other things, ‘that the versions in the three official languages are consistent’ (Article 57, para 2 of the Parliament Act), ie, that all three language versions have the same form and the same content. In contrast to federal acts, ordinances – except for the most important ordinances – are usually drafted in just one language and are

31 cf F Uhlmann, ‘Politische Vorstösse für bessere Gesetze: Eine Auslegeordnung und eine vorsichtige ­Bewertung’ in D Canapa, R Landolt and N Müller (eds), Sein und Schein von Gesetzgebung: Erwartungen – Auswirkungen – Kritik (Zurich, Dike, 2018) 4–10. 32 Publications Act of 18 June 2004 (SR 170.512). 33 cf Höfler et al (n 17) 160. 34 cf S Steiner, ‘Redaktionskommission’ in M Graf, C Theler and M von Wyss (eds), Parlamentsrecht und Parlamentspraxis der Schweizerischen Bundesversammlung (Basel, Helbing Lichtenhahn, 2014) 465–89.

492  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann only translated into the other languages towards the end of the drafting process; the Federal Chancellery ensures that the three language versions are consistent (co-editing).35 Popular initiatives, in most cases, are originally submitted in just one language. The text is then translated and co-revised by the administration; this happens in close coordination with the initiators. At the end of this process, the administration certifies that the three language versions of the text are equivalent. After this point, the text can no longer be changed and the collection of the required signatures may begin.36 The multi-lingualism of the Swiss legal system represents both a challenge and an opportunity. On the one hand, additional safeguards have to be put in place to ensure that all language versions of a legislative text end up having the same content. This requires extra time and the involvement of additional language experts. On the other hand, comparing different language versions of a legislative text has proven useful both for legislative drafting, where uncertainties and loopholes may be found that would otherwise have been overlooked, and for the later interpretation of the text by the courts, where ambiguities present in one language version may be resolved when consulting the others.37 However, this advantage builds on the fact that the number of language versions to be considered is small and that even though there are multiple languages, there is only one legal system.

30.3.2.  Plain Language Switzerland has a long-standing tradition of plain-language legislative drafting that dates back at least to the beginnings of the modern Swiss state in the late nineteenth and early twentieth centuries,38 and continues to play an important part in Switzerland’s public, political and legal discourse.39 There are several explanations for this tradition.40 A first explanation may be found in the instruments of participation and direct democracy provided by the Swiss Constitution. The fact that the public will be invited to comment on the draft of a new piece of legislation and the possibility that the people will have to vote on it create strong incentives for the use of plain language: the more sceptical people are of the comprehensibility of an act, the less likely they are to accept it. A second explanation is closely related: Switzerland’s so-called ‘militia’ tradition. Customarily, a majority of the public offices in Switzerland have been held not by career politicians or lawyers, but by laymen. Among other things, this has also had an effect on the language of Swiss laws: in comparison to

35 cf Höfler et al (n 17) 161. 36 All popular initiatives, past and present, can be inspected online at: www.bk.admin.ch > Politische Rechte > Volksinitiativen. 37 cf A Lötscher, ‘Multilingual Law Drafting in Switzerland’ in G Grewendorf and M Rathert (eds), Formal Linguistics and Law (Berlin, De Gruyter, 2009) 371–400; R Bratschi and M Nussbaumer, ‘Mehrsprachige Gesetzgebung’ in E Felder and F Vogel, Handbuch Sprache im Recht (Berlin, De Gruyter, 2017), 367–90; F Uhlmann and S Höfler, ‘Multilingual Legislative Drafting in Swiss Cantons: Burden or Blessing?’ (2018) 1 The Loophole – Journal of the Commonwealth Association of Legislative Counsel 54. 38 The tradition is closely linked with Eugen Huber, the author of the Swiss Civil Code of 10 December 1907 (SR 210), who in his introductory notes to the bill set out principles of plain-language drafting that have been applied until today (available online at: www.eugenhuber.ch > Texte > Einleitung). 39 cf A Griffel (ed), Vom Wert einer guten Gesetzgebung (Bern, Stämpfli, 2014). 40 cf M Nussbaumer, ‘Die deutsche Gesetzessprache in der Schweiz’ in M Brambilla, J Gerdes and C Messina (eds), Diatopische Variation in der deutschen Rechtssprache (Berlin, Frank & Timme, 2014) 134.

Legislation in Switzerland  493 Germany’s legislative language, which is generally considered to be complex, difficult to understand and almost pedantically detail-oriented, Switzerland’s legislative language seems plain, down to earth and easily accessible.41 A third explanation for Switzerland’s tradition of plain-language drafting can be found in the aforementioned multi-lingualism of its legal system: Swiss laws have to be rendered in multiple languages and this is easier to accomplish if they are written in plain language. At the federal level of government, the use of plain language has even been enshrined in the law: Article 7, paragraph 1 of the Languages Act42 stipulates that the federal authorities must ‘endeavour to ensure that their language is appropriate, clear and comprehensible and shall ensure that gender-appropriate wording is used’. Moreover, the care for plainlanguage legislative drafting has been entrusted to a special institution, the Internal Drafting Committee of the Federal Administration, an institution whose main purpose is to ensure that all federal enactments are drafted in comprehensible language. The Committee is composed of language specialists as well as legal experts; it checks all drafts of federal acts and ordinances in the course of the internal review process and provides the authors with suggestions as to how their draft could be improved from a linguistic point of view. Even though the Committee has no authority over the text, it has become well established in Switzerland’s legislative process since its creation in 197643 and its advice is generally respected and followed. This is particularly due to the fact that the Committee does not just criticise drafts, but actually suggests alternative wordings where a text is difficult to understand. The authors in turn are obliged to discuss the Committee’s suggestions and it is often in the course of this personal exchange that an adequate final wording is found.44 Drafts of federal acts are additionally examined by a special parliamentary committee, the Drafting Committee of the Federal Assembly, prior to the final vote in Parliament.45 This committee is also tasked, among other things, with ensuring ‘that the texts are formulated in a concise and understandable manner’ (Article 57, para 2 of the Parliament Act). However, due to the late point at which it comes into play, its influence on the texts is much more limited than that of the adminstration’s Internal Drafting Committee.

30.3.3.  International Law With regard to the relationship between national and international law, Switzerland has adopted a monist system.46 International law does not have to be translated into national law; rather, it is incorporated into Swiss law as is once it has been ratified and thus becomes directly applicable.47 However, international treaties frequently have to be implemented by

41 U Karpen, ‘Schweizerische Rechtsetzung und Rechtsetzungslehre – ein Blick von aussen’ [2012] Zeitschrift für Gesetzgebung 68. 42 Languages Act of 5 October 2007 (SR 441.1). 43 cf M Nussbaumer, ‘1976–2016: 40 Jahre VIRK – 40 Jahre GTR – 40 Jahre Arbeit an der guten Gestalt von Erlassen des Bundes’ (2016) 1 LeGes 118. 44 cf Nussbaumer (n 20); Höfler (n 20); Höfler et al (n 17) 57f. 45 Steiner (n 34). 46 cf Misic and Töpperwien (n 1) 50. 47 The international law applicable in Switzerland can be inspected online (in German, Frenchn and Italian) at: www.admin.ch > Bundesrecht > Systematische Sammlung des Bundesrechts (SR) > Internationales Recht.

494  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann means of national legislation. For this purpose, legal concepts and legal terminology alien to Swiss law have to be transposed into national legislation. The challenge is particularly accentuated with regard to European Union (EU) law. While Switzerland is not a member of the EU, its law has nevertheless become closely intertwined with EU law. This development leads to a clash of two legislative cultures that in many regards could not be more different: on one side, Switzerland’s tradition of plainlanguage, no-nonsense drafting, and on the other, the EU’s habit of composing verbose, detail-oriented legislative texts. In general, there are three possible strategies to implement EU law in Swiss legislation: the EU provision can be either copied, rephrased or merely referenced in the Swiss text. Copying has the advantage that it creates the appearance that the EU and the Swiss provision are identical. It also does not require the authors of the Swiss text to fully understand the EU provision. However, this strategy often raises the problem that the original provision is taken out of context and thus in fact does not retain its original meaning when inserted in the Swiss text. Rephrasing, in turn, often has the advantage that it facilitates the understandability of the text and that the provision better fits into the context of the Swiss law. However, it comes with the disadvantages that it is labour-intensive and that one can never be sure whether the rephrased provision has exactly the same meaning as the EU provision. Finally, referencing is cheap and makes it transparent that the respective provision originates from and is meant to be identical to EU legislation. The problem is that it often obfuscates the actual content of a provision: the content only becomes clear once one has studied the respective EU text and followed any further references contained therein.48 In sum, none of the mentioned solutions is ideal. Thus, the influence of EU legislation will likely continue to pose a threat to Switzerland’s tradition of plain-language and high-transparency drafting.

30.4. Education Legal education in Switzerland, like elsewhere, is still almost exclusively concerned with the interpretation and application of law; traditionally, the education of lawyers has included very little training in the theory and practice of legislation.49 Recently, however, some Swiss universities have begun to offer such courses at the master’s level: master’s courses in legislation can now be attended at the Universities of Basel, Bern, Fribourg, Geneva and Zurich.50 These recent developments notwithstanding, drafting skills are still mostly acquired on the job, eg, with the help of guidelines for legislative drafting.51 48 cf Schweizerische Bundeskanzlei, Faustregeln für die Umsetzung von EU-Recht in schweizerisches Recht (Bern, 2017), available online (in German, Frenchn and Italian) at: www.bk.admin.ch > Dokumentation > Rechtsetzungsbegleitung > Übernahme von EU-Recht: Formale Aspekte > Hilfsmittel. 49 cf M Wyss, ‘Legistische Aus- und Weiterbildung in der Schweiz: Angebote, Akteure, Perspektiven’ in F Uhlmann and S Höfler (eds), Professional Legislative Drafters: Status, Roles, Education (Zurich, Dike, 2016) 7–13; F Uhlmann, ‘Developments in the Education of Legislation and Regulation: Germany and Switzerland’ in HR Shouten (ed), De opleiding van wetgevingsjuristen en wetgevingsonderzoekers in rechtsvergelijkend perspectief (Nijmegen, Wolf, 2011) 43–60. 50 Uhlmann (n 49) 51. 51 cf Bundesamt für Justiz, Gesetzgebungsleitfaden: Leitfaden für die Ausarbeitung von Erlassen des Bundes, 4th edn (Bern, 2019), available online (in German, Frenchn and Italian) at: www.bj.admin.ch > Staat & Bürger > Legistik > Legistische Hauptinstrumente; Schweizerische Bundeskanzlei (n 21).

Legislation in Switzerland  495 Several institutions offer vocational training for practitioners. The Institute of Federalism of the University of Fribourg, together with the Swiss Society of Legislation, the Swiss Federal Chancellery and the Federal Office of Justice, organise two seminars on legal methodology and legal drafting every year (the so-called ‘Murten Seminars’). The Centre d’étude, de technique et d’évaluation législatives (CETEL) of the University of Geneva regularly offers similar courses in French. The Swiss Society of Legislation and the Centre for Legislative Studies at the University of Zurich each organise annual conferences and seminars. Since 1990, the Swiss Society of Legislation, together with the Swiss Evaluation Society, has edited a scientific journal dedicated to legislation: LeGes – Legislation & Evaluation.52 LeGes appears three times a year. It includes theoretical and applied papers in German, French, Italian, Romansh and English that deal with questions relating to the goal of achieving good, comprehensible and effective legislation. LeGes serves as a channel of communication for the practitioners and scholars of legislation in Switzerland.

30.5. Outlook In comparison to other countries, the legislative process in Switzerland is relatively slow. This has to do with its federalism, direct democracy and separation of powers. It might be asked whether the ‘engine’ powering Swiss legislation is too weak and its ‘breaks’ too strong to meet the expectations of a swift implementation of internationally accepted standards. However, the slowness of the Swiss legislative process, combined with its tendency to search for compromise before any decisions have been taken, has proven to yield good results. Despite frequent complaints that the quality of legislation has markedly decreased and that better regulation is urgently needed,53 Switzerland on average still produces ‘good’ laws: both its legislative process and the actual texts that the process yields exhibit relatively high levels of transparency and are generally well accepted. However, this achievement has come under pressure from an increasingly activist political environment, the growing influence of ever more complex international and EU law, and the fast pace at which legislation is expected to happen in an age where digitalisation has become an end in itself.54 Only time will tell whether Switzerland can maintain the quality of its legislation in such political, legal and societal circumstances.

Further Reading P Egli, Introduction to Swiss Constitutional Law (Zurich, Dike, 2016) A Flückiger, (Re)faire la loi (Bern, Stämpfli, 2019) A Griffel (ed), Vom Wert einer guten Gesetzgebung (Bern, Stämpfli, 2014) W Haller, The Swiss Constitution in a Comparative Context (Zurich, Dike, 2016)

52 The journal is available free of charge online at: www.leges.ch. 53 cf Griffel (n 39). 54 cf A Huber-Hotz, ‘Mit Sprache einen Staat machen’ in A Lötscher and M Nussbaumer (eds), Denken wie ein Philosoph und schreiben wie ein Bauer (Zurich, Schulthess, 2007) 1–3.

496  Stefan Höfler, Markus Nussbaumer and Felix Uhlmann A Lötscher and M Nussbaumer (eds), Denken wie ein Philosoph und schreiben wie ein Bauer: Sprache, mit der ein Staat zu machen ist (Zurich, Schulthess, 2007) A Misic and N Töpperwien, Constitutional Law in Switzerland, 2nd edn (Bern, Stämpfli, 2018) G Müller and F Uhlmann, Elemente einer Rechtssetzungslehre, 3rd edn (Zurich, Schulthess, 2013) RJ Schweizer and M Borghi (eds), Mehrsprachige Gesetzgebung in der Schweiz – Législation plurilingue en Suisse – Legislazione purilingue in Svizzera – La legislaziun plurilingua en Svizra (Zurich, Dike, 2011) M Thommen (ed), Introduction to Swiss Law (Bern, Carl Grossmann, 2018)

31 Legislation in the UK HELEN XANTHAKI AND CONSTANTIN STEFANOU

Context In the UK (Westminster), Acts of Parliament are the main primary source of legislation, and Regulations or Statutory Instruments are the dominant types of delegated legislation. The UK is characterised by its devolved nature, with Westminster covering the whole of the UK and the devolved legislatures of Wales, Scotland and Northern Ireland. Primary legislation is drafted by professional drafters who, for Westminster, are appointed at the Office of Parliamentary Counsel (OPC) and for the devolved governments by the regional parliaments. Legislative quality is served by the professionalisation of drafting, the intense pre- and post-legislative scrutiny mechanisms, and the recent moves towards less legislation that is more user-friendly. Evidence acquired by the Good Law initiative revealed that in the UK, legislation is read mainly by laypersons. This has revolutionised legislative drafting.

31.1.  A Devolved Jurisdiction The UK is not a single jurisdiction. It encompasses England and Wales, Scotland, and Northern Ireland. Legislation is passed at Westminster, Cardiff, Edinburgh and Belfast. Moreover, the processes and styles of legislation differ substantially. Although there has not been a study identifying, or indeed comparing, the styles of legislation in the devolved jurisdiction, it would be fair to state that Westminster presents a dry, progressive and innovatively user-friendly legislative expression both for the common UK Public Acts and for the smaller number of Acts that apply solely to England. Wales is very much influenced by Westminster innovations, but the additional complication of bi-lingualism (Welsh and English) has led to interesting debates on the necessity to accommodate languages with different structures and linguistic traditions. Scotland is very much influenced by its civil law component and has emerged as an innovative mixed jurisdiction, which has gone further than Westminster in legislative innovation, such as the use of the second person in legislation. Northern Ireland has remained behind as the most traditional devolved jurisdiction, probably since innovative legislative expression may well be a luxury within a political environment burdened with continuous compromise, threat of suspension of the Northern Ireland Assembly and breaks in government.

498  Helen Xanthaki and Constantin Stefanou The individuality in the personalities of the central and devolved Parliaments prevents a generic analysis of the legislation in the UK. The chapter is therefore limited to Westminster and UK Public Acts, although reference is made to devolved and local Acts, and delegated legislation for the purposes of detailing the sources of law in the UK. The most significant recent development in legislation and its drafting in the UK has been the Good Law project undertaken by the National Archives in cooperation with the UK OPC partnered with the Sir William Dale Centre for Legislative Studies and the University of Cambridge. The National Archives undertook a survey of 2,000,000 samples of users of www.legislation.gov.uk within a period of one month. The survey demonstrated that the free, electronic database of legislation in the UK is used much more heavily than was initially thought; in this respect, this was the first empirical proof that the force of common law had succumbed to statutory law. Perhaps more importantly, the survey identified three main categories of users of legislation: laypersons reading the legislation to make it work for them, sophisticated non-lawyers using the law in the process of their professional activities, and lawyers and judges. In more detail in the UK, there are three categories of users of legislation: (1) non-lawyers who need to use legislation for work, such as law enforcers, human resources professionals or local council officials – the ‘Mark Green’ persona of the survey represents about 60 per cent of users of legislation; (2) laypersons who seek answers to questions related to their personal or familial­ situation – ‘Heather Cole’ represents about 20 per cent of users of legislation; and (3) lawyers, judges and senior law librarians – the ‘Jane Booker’ persona represents about 20 per cent of users of legislation. The survey demonstrated beyond doubt that legislation in the UK is read not just by lawyers and judges, but also by citizens without legal training. In fact, legislative texts were proved to be the main direct source of information on the legal position on issues affecting users’ rights and obligations. This took researchers and practitioners aback. Legislation does not talk to specialists; it talks to users directly and indeed does so without expert intermediaries. As a result, the receivers of legislative communication are, in the main, legally unsophisticated users. This creates an obligation of the state to talk to them directly via an intelligible, easified legislative text. At the same time, the heavy usage of legislation by lay users abolishes, to some extent, the utility of policy documents, namely easified explanatory materials aimed to transfer the law to the people. Of course, complex concepts and structures, such as pensions and social security, require easification irrespective of the level of complexity of the legislative expression. However, the fact of the matter remains that the Google generation of users, who are used to receiving immediate answers to their questions over the internet, replicate this demand to legislation and expect to get an immediate answer to their search for their rights and obligations by virtue of the legislative text itself rather than explanatory materials. The latter are often disregarded on the presumption that they are sanitisations of the real position by politicians, whom users seem to trust less and less. The Good Law initiative changed the style of legislation in the UK dramatically. Innovations include the switch from a long title to the introductory text, the transfer of most preliminary provisions to the bottom of the Act as final provisions, the use of the term ‘start date’ instead of ‘commencement’, the easification of legislative language, the reform of explanatory notes to provide context and examples to users, the continuing pursuit of homogeneity and transparency of legislative choices by means of guidelines, and many more.

Legislation in the UK  499 Whilst legislation has been undergoing radical reform, regulation has also been transformed. Emphasis is placed on better regulation and strict controls are placed on new legislative initiatives. The one in, one out initiative is now a one in, two out process, requiring each government department introducing a new Act to repeal two existing Acts without resorting to consolidations. The initiative is yielding impressive results. In 2018 the number of UK Public General Acts was only 34, in 2017 34, in 2016 25, in 2015 37, in 2014 30, in 2013 33, in 2012 23 and in 2011 25 – these numbers are roughly half those observed in the previous decade. It is interesting to complete the picture with the number of UK Statutory Instruments, the equivalent of delegated legislation. In 2018 there were 1,385, in 2017 1,289 in 2016 1,241, in 2015 2,058, in 2014 3,485, in 2013 3,291, in 2012 3,327 and in 2011 3,131 – this also demonstrated a notable decline compared with previous decades. Finally, viewing legislation as a tool for regulation brings together policy concepts, regulatory choices, legislative interventions and regulatory evaluations as part of the cycle of regulation, of which legislating is just one part. Brexit is putting legislation and regulation to the test, as the need to review all of existing legislation enables the implementation of all these innovations to the whole of the statute book.

31.2.  Types of Legislation The UK is a parliamentary (rather than a constitutional) monarchy. Perhaps as a result of this extreme parliamentary sovereignty, there has never been a fully codified constitution. However, it would be inaccurate to say that there is no constitution in the UK. The 1215 Magna Carta is the basic constitutional text, which has been greatly enriched by statutory law such as the Human Rights Act 1998 and the European Communities Act 1972, landmark judgments, prerogatives, conventions and recent devolution Acts and future Brexit Acts. Constitutional Acts are not entrenched in any way and can be amended by Parliament under the same procedure as ordinary Acts. In fact, the classification of an Act as constitutional is undertaken on the basis of its nature and its effect on the statute book. Prerogatives and conventions are instilled in the legal system without any text, but through a longestablished constitutional tradition. The UK, with its devolved legislatures, offers one of the longest lists of types of legislation. The most common (and arguably the most important) are Acts of Parliament (that is, the Westminster Parliament). There is no geographical restriction on an Act of Parliament and it can make either UK-wide provision or provision for any of the devolved jurisdictions. The longer way of referring to these are Public and General Acts as they apply to everyone. These can be contrasted with Private, Local and Personal Acts, which only apply to specific people are places (and are much less common), which are also passed by the Westminster Parliament. Then there is primary legislation either enacted by, or related to, the devolved legislatures. So, there are Acts of the Scottish Parliament, Acts of the National Assembly for Wales, Measures of the National Assembly of Wales, Acts of the Northern Ireland Assembly, Measures of the Northern Ireland Assembly 1974 and Acts of the Northern Ireland Parliament (1921–72). There are other types of primary legislation, which relate to the devolved jurisdictions, but are not passed by the devolved legislatures. This is generally

500  Helen Xanthaki and Constantin Stefanou done where the devolved legislature does not have legislative competence over a particular matter. For example, the Secretary of State for Northern Ireland may make a Northern Ireland Order in Council, a particular type of primary legislation relating only to Northern Ireland. Additional types of primary legislation are Church Measures, Acts of the Old Scottish Parliament (1424–1707), Acts of the English Parliament (1267–1706), Acts of the Old Irish Parliament (1495–1800) and Acts of Great Britain (1707–1800). Although these tend to be of a historical nature, they do infiltrate modern legislation, as was the case with the Succession to the Crown Act 2013, which amended or repealed a number of Acts from old parliaments. These are instruments of primary legislation, namely legislation that has been passed by the Houses of Parliament or the devolved Parliaments. They are passed by a majority and can be amended or repealed by subsequent primary legislation. There is a limited exception to the rule that only primary legislation can override primary legislation – the use of a Henry VIII clause. This is a transfer of power to amend or repeal primary legislation via delegated legislation on the basis of an enabling clause within a primary Act. Types of delegated legislation are UK Statutory Instruments (SIs), Welsh SI, Scottish Sis, Orders in Council, Northern Ireland Statutory Rules, Church Instruments, UK Ministerial Decisions, UK Ministerial Orders, the historical UK Statutory Rules and Orders (1900–48), Northern Ireland Statutory Rules and Orders (1922–73), Orders in Council, Northern Ireland Orders in Council, and Orders made under the Royal Prerogative. Delegated legislation requires the express transfer of legislative power to the executive by means of a concrete and precise enabling clause in primary legislation. Although it is a legitimate constitutional anomaly, in that it allows the executive to legislate in contrast with the principle of separation of powers, it is quite popular due to its faster and easier adoption process, and ease of amendment.

31.3.  Competences, Organisation and Process of Legislation (Procedures) The passage of legislation through Parliament, referred to as the legislative process, is one phase of the wider policy process, as shown in Figure 31.1 below. As in most jurisdictions, the UK has specific procedures which detail how a bill (a proposed law introduced in Parliament) becomes an Act of Parliament (a law). For each parliamentary session, the government has a parliamentary programme which has been agreed before the session starts and details the bills which the government intends to bring to Parliament during that session. This programme is usually agreed at Cabinet level and is sometimes referred to as the ‘prioritisation’ of legislation. The criteria for prioritisation are not public, but, as in most jurisdictions, they are a mixture of political choices, need and affordability. The programme, of course, can change in the event of emergencies or private members’ bills, but it is usually adhered to. In order to have a bill included in the government’s parliamentary programme, ministries submit so-called ‘bids’ (proposed bills) to the Parliamentary Business and Legislation (PBL) Committee of the Cabinet. To have a good chance of being selected – because each ministry makes many bids, but only a few are selected – proposed bills must be submitted about a year in advance. In practice, this means

Legislation in the UK  501 that the bills discussed in Parliament have been around for about one or two years, which is plenty of time for civil servants and politicians to become familiar with the proposals.1

Figure 31.1  The stages of the policy process and the legislative process2

Once a bill has been selected for inclusion in the programme, the relevant ministry will assign a ‘bill team’ to coordinate the work of policy officers and the legal team of the ministry with the legislative drafters. The policy officers and the legal team will write ‘drafting instructions’ that the drafters will use to draft the bill. In the UK, all primary legislation is drafted by the OPC, which has around 50 professional drafters led by the First Parliamentary Counsel. Once a bill is deemed to be ready, it is up to the PBL Committee to bring it to Parliament, provided it is not a bill requiring pre-legislative scrutiny (ie, a process where the 1 See Cabinet Office, ‘Guide to Making Legislation’, July 2014, 6–11. 2 See C Stefanou, ‘Drafters, Drafting and the Policy Process’ in C Stefanou and H Xanthaki (eds), Drafting Legislation: A Modern Approach (Aldershot, Ashgate, 2008) 323.

502  Helen Xanthaki and Constantin Stefanou public is informed about the government’s intention to bring new legislation in the field and the relevant committees take oral and written evidence about the bill and the possible need to revise it before it comes to Parliament). It is up to the government to decide whether a bill starts in the House of Commons or the House of Lords, but certain important bills, eg, the finance bill (the Budget) or bills of major constitutional importance, by convention begin in the House of Commons. Figure 31.2 outlines the stages a bill goes through before it becomes law. Figure 31.2  Progress of legislation through Parliament3 House of Lords

Bill [HL]

Consideration of Amendments

Third Reading

3

Report Stage

R

Committee Stage

C

Second Reading

2

First Reading

1

1

First Reading

2

Second Reading

C

Committee Stage

R

Report Stage

3

Third Reading

Royal Consent

Bill House of Commons

31.3.1.  First Reading This is the introduction of a bill to Parliament, a formal stage without any form of discussion. Usually it takes at least two weekends before the next stage.

3 Simon Patrick and Mark Sandford, ‘House of Commons Background Paper: Public Bills in Parliament’, House of Commons Library, Parliament & Constitution Centre, SN/PC/06507, 17 December 2012, 5.

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31.3.2.  Second Reading This stage marks the first debate on the main principles of the proposed legislation. The government will make the case for the bill and the Opposition will respond. No amendments can be made at this stage, but the main areas for debate are identified. At the end of the second reading, there is a vote and if the government is defeated (which is rare for bills), the bill cannot proceed further.

31.3.3.  Committee Stage At the Committee Stage, a typical stage in most jurisdictions, the bill is sent to a committee for close, line-by-line scrutiny. Normally bills are sent to a public bill committee (formerly known as a standing committee), which can have 16–50 members. However, it is also possible for the Committee Stage to take place in a ‘Committee of the whole House’, which is usually reserved for bills of an important financial or constitutional nature (or for ‘emergency’ legislation under the fast-track procedure). Amendments are tabled and discussed during this stage and while ‘technical’ amendments can proceed, substantial amendments will need the agreement of the PBL Committee.

31.3.4.  Report Stage The Report Stage is the last chance to discuss amendments (this stage is also known as the Consideration Stage in the House of Commons) identified at the Committee Stage.

31.3.5.  Third Reading In the House of Commons, this stage marks the last chance for a general discussion to be carried out on the bill before it is sent to the House of Lords, although it is not possible to make amendments. In the House of Lords, amendments can be tabled during this stage.

31.3.6.  Transmission of a Bill to the Other Chamber Most bills originate in the Commons, so they are sent to the House of Lords where they go through the same stages. Bills that are amended in the second chamber must return to the first chamber for consideration of the amendments. As the Cabinet Office notes in one of its publications: The first House can reject the amendments, make changes to them or suggest alternatives. A Bill may move backwards and forwards between the two Houses before agreement is reached, so this stage is sometimes called ‘ping pong’. The time taken to go through all these stages depends on the length of the Bill, how controversial it is and whether it needs to be passed particularly quickly. An emergency Bill may be passed in

504  Helen Xanthaki and Constantin Stefanou a matter of days, whereas a larger Bill may be introduced at the beginning of the session and only passed at the end a year later.4

31.3.7.  Royal Assent The Royal Assent (assent by the head of state) is the last stage of the legislative process. The monarch signs batches of bills, usually around once a month, and it is a ceremonial part of the process – the Royal Assent has not been refused since the Scottish Militia Bill of 1708. Once Royal Assent has been granted, it is announced to the Houses by their speakers.

31.3.8. Commencement Unlike other jurisdictions, the UK does not have a government gazette where laws are published. To most civil law lawyers, this would be anathema because of the uncertainty about the precise date of entry into force, but it has never really been a problem in the UK. Normally bills have a specific provision about entering into force (commencement). If a bill does not have a specific provision about commencement then, it comes into effect on the day of the Royal Assent. However, the custom is that no substantial parts of the bill will take effect until at least two months have elapsed after Royal Assent has been given. What the Westminster legislative process reveals is the great similarities between the UK processes with those in other parts of Europe and the world. The stages of the legislative process tend to be quite similar in most Western liberal democracies. At the same time, one can see certain idiosyncrasies of the process – which have influenced the common law jurisdictions, eg, centralised legislative drafting – confirming the view that most jurisdictions operate a system that features a mixture of custom and good housekeeping. This is sensible and to be expected.

31.4.  Policy-Making, Objectives and Instruments of Legislation (Methodology) The traditional methodology of legislative quality, not just in the UK but in most Commonwealth jurisdictions, was introduced by Garth Thornton and comprises five stages: (1) (2) (3) (4) (5)

Understanding the proposal. Analysing the proposal. Designing the law. Composing and developing the draft. Verifying the draft.

4 Cabinet Office, ‘Legislative Process: Taking a Bill through Parliament: An Overview of the Process by Which Bills Become Law’, 20 February 2014, https://www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament.

Legislation in the UK  505 The drafting process, which is part of the legislative process that is in turn part of the policy process, begins when the drafter receives a request to draft legislation. This request, known as drafting instructions, comes from the policy and legal officers of the client department. These can be detailed or short. They are there to provide the drafter with enough context and information to assist them to start the process of constructing an effective legislative text. Drafting instructions are read by the drafters, who begin the intellectual process of understanding the social phenomenon to be addressed, the data and process that persuaded the policy officers to take action, their decision to take legislative action and their expectations. Drafting instructions also provide the data to persuade the drafter that legislation is indeed the best way forward, especially when existing legislation and jurisprudence is taken into account. Tempting as it may be (and it often is in practice), drafting instructions must not take the form of a lay or rough draft law, as it reduces the work of the drafter from that of a creative legal writer to that of an English-language editor, thus adversely affecting the quality of the end product. In the UK, drafting instructions for primary legislation (government bills) are instructed by government departments. The detailed policy is worked out by the administrators, with legal advice where necessary. Administrators are administrative civil servants who are responsible for policy and administration. Legal advisors are based in government departments and are familiar with the legal framework (statutory and common law) under which the department operates. Drafting instructions are prepared by a legal advisor in close consultation with the administrators. The legal advisor’s main task is to work out what additions to (or changes in) the law are needed to give effect to the policy, and to provide all the information the drafter needs in order to be able to draft the bill. The legal advisor provides the drafter with drafting instructions, alerts them to any potential problems, and acts as a link between the administrators and the drafters. The administrators, legal advisors and drafters (normally Parliamentary Counsels attached to the OPC) form the ‘bill team’. It is possible for Members of Parliament (MPs) to propose their own bills, known as private members’ bills. As these rarely progress without government support, they do not receive drafting support from the OPC. Of course, if support from government is forthcoming, private members’ bills become government bills and undergo the drafting process detailed above. Delegated legislation is instructed and drafted within each government department. Traditionally, the OPC had little involvement in the drafting of delegated legislation. There has always been a tendency to detach delegated legislation from the OPC, although the OPC shared the task of ensuring that delegated legislation fell neatly into the regulatory package introduced by primary legislation. In recent years, drafters from departments are hosted by the OPC, thus allowing them the opportunity to sit with Parliamentary Counsel, share the discussions and in-house training, and benefit from mentoring from the drafters of primary legislation. Going back to Thornton’s stages of drafting, stage 2 entails analysing the drafting instructions. This is a process of exchange with the instructing officers, where the drafters begin to translate the requests and details of drafting instructions to a legislative proposal. There is no accepted format in practice, but the literature agrees that the best format for analysis here is the compilation of a legislative plan or a legislative research report. This involves a brief

506  Helen Xanthaki and Constantin Stefanou or detailed analysis of the existing law, the identification of the gap or error identified by the instructing department (the mischief), the drafters’ thoughts on the necessity of legislative intervention, a brief list of the proposed policy solutions, a brief reiteration of the proposed law reform and initial thoughts on their expression in the form of legislative intervention. It is important to note that this involves identifying the three spheres of regulation involved in legislative drafting: policy, substantive law and legislation. As each has its own concepts, methods and language, the drafter’s task is to correlate them and ensure that the transformation from policy to law reform to drafting leads seamlessly to regulatory efficacy. The legislative plan is a memo from the drafter to themselves or the bill team expressing precisely this process. This can be shared by the team as a means of ensuring that the end result of the legislation is what is expected from their policy-makers; often, matters of policy arise when the drafter attempts to transform an idea into a legislative text. Thus, the design acts as a form of quality control over a bill. The legislative plan includes an analysis of the existing law (the mischief), an analysis of the necessity of legislation, a regulatory tool that can only be used as a solution of last resort where every other regulatory choice would not be effective, an analysis of potential danger areas (constitutional, legal and practical) and an analysis of the practical implications of the legislative proposal, including an analysis of matters for which secondary legislation is likely to be necessary in order to implement the draft law. Stage 3 of the drafting process involves designing the law. This is a transitional stage between analysing and composing. Here the drafter, having understood and analysed the instructions, begins to formulate a design for the legislation. This includes identifying its precise scope and its constituting elements, whilst rejecting possible elements that must stay outside of the text. At the same time, initial thoughts about structure of the text begin to form, with thoughts on delegated instruments, division in parts or the use of visual aids such as tables and formulae. Stage 4 sees the actual drafting of the text. The audiences of the specific legislation are identified, their level of legal and subject sophistication is gauged, and the appropriate pitch is decided. Preliminary assessments on structure are put to effect, and choices of terminology often put forward by the legal officers are tested and acted upon. The text is completed, ready for verification. This verification happens in stage 5. There are two types of verification. The first begins from the early stages of the drafting process and encompasses discussions on the policy, legal and legislative choices undertaken by the drafter within the bill team. Structure, words and expressions are tested by the members of the team, and comments are offered to the drafter. At the end of stage 4, the team undertakes internal scrutiny of the text as a means of ensuring that the regulatory message is communicated appropriately to the concrete legislative audiences and that the text serves the law reform and policy change sought by the instructing officers. The second type of verification entails testing of the legislative text by a wider circle of users. Modern legislative drafting has seen the introduction of user testing, namely organising group assessment of the text by users who are invited to answer questions on the provisions. By monitoring whether the users are led to the right conclusions in implementing the text, drafters verify the clarity, precision and unambiguity of the legislative communication.

Legislation in the UK  507

31.5.  Structure, Language and Amendments (Techniques) The UK has been through a change in its approach to homogeneity in legislative drafting. In the recent past, the concept of a manual was rejected, mainly because drafting was viewed as an art without rigid rules. With the development of phronetic legislative drafting, it has become apparent that drafting does present principles that, in the majority of cases, can lead to the desired effect of quality in legislation. The OPC has therefore begun publishing guidelines for drafters, which of course are not and cannot be implemented with rigidity or absolute homogeneity. However, the most radical change in legislative drafting in the UK has been a direct result of the conclusions drawn by the Good Law initiative. By identifying the three main groups of users, the survey provided drafters with unprecedented insight into the types of answers sought by each group, the level of subject knowledge of each group and the level of legal sophistication of each group. Through empirical data, it became evident that legislation is not used by lawyers and judges, but is used mainly by laypersons. In parallel with the realisation that legislation is a tool for regulation and that it is a means of communication between the state and the user, drafters are actively reforming drafting styles as a means of ensuring unhindered communication of the regulatory message to each user group. Techniques are tested and recommended or rejected. The structure of legislative texts has undergone significant change. Traditional common law drafting saw a division of provisions within a bill into preliminary, substantive/administrative and final provisions. Preliminary provisions included, when necessary, a long title, a preamble (rarely), the enacting clause, a short title, commencement, duration/expiry, application, a purpose/objectives clause, definitions and interpretation. Final provisions traditionally included savings and transitional provisions, repeals, consequential amendments and schedules. After the Good Law project, it became evident that this top-heavy approach was inappropriate: lay users were deterred from delving into the text of the legislation by the complexity and pomposity of numerous, often seemingly endless preliminary provisions. This added to the unfriendliness of legislation, which endangered legislative effectiveness and ultimately regulatory efficacy. As a result, drafters have shifted most preliminary provisions to the end of the text along with the final provisions, thus giving the user the main regulatory messages as early on in the text as possible. The long title, namely the description of the manner in which the law is reformed, remains at the very top of modern legislative texts, but has acquired a user-friendly and unambiguous heading as the introductory text. Preambles, already unpopular in the UK, are now only seen in archaic or ceremonial laws. The enacting clause remains as a constitutional requirement without which the text lacks legitimacy, and has maintained its archaic and ceremonial form of words. It is worth noting that UK drafters do not seem to share the argument of their New Zealand colleagues, who feel that the emblem of the state at the top of the text suffices and can replace the enacting clause. The short title remains as a means of reference to the law in the index of the statute book. But commencement (now renamed ‘start date’), duration, expiry, application and interpretation provisions are now transferred to the final provisions part. Similarly, definitions are finding their way into either final provisions or, preferably, schedules at the back of the legislative text. And what seems to be making a surprise revival is purpose clauses, which may have been persecuted to the point extinction in the past, but

508  Helen Xanthaki and Constantin Stefanou now have been invited back as objective clauses, including measurable and concrete criteria for the effectiveness of the legislation in regular post-legislative scrutiny cycles. Final provisions continue to include their traditional elements of savings, transitional provisions, repeals, consequential amendments and schedules. Savings provisions preserve or ‘save’ a law, a right or privilege that would otherwise be repealed or cease to have effect. In other words, saving provisions keep in being laws, rights or obligations that might otherwise disappear when an existing law is repealed. Transitional provisions are necessary to enable a smooth transition to be made between the existing law and the new law; they tie up the loose ends which would otherwise be left dangling. A new type of provisions seems to be emerging in the last couple of years. Transitory provisions are a new type of transitory provisions with a limited shelf life, such as transitional provisions amending an earlier Act that is the subject of uncommenced amendments. Repeals are deletions of provisions or Acts from the statute book. Repeals are express, as implied repeals (namely repeals arising by interpretation) are an anathema in UK drafting. It is debatable as to whether repeals in primary legislation must include consequential repeals of delegated legislation; constitutionally, this is not necessary, but the practice certainly promotes clarity. The current publication of legislation online with hyperlinks and comments on delegated legislation seems to diminish the practical need for express consequential repeals of delegated legislation, although the clarity argument remains. Schedules are annexes to the body of the text, hanging from a substantive provision within the body of the text. With the move towards a drier shorter legislative text, there is a notable increase in the use of schedules. This includes an increase in Keeling schedules, a device that applies direct textual amendments to the text, thus offering the user the text of the law as it stands after amendments have been put into effect. Irrespective of the placement of a provision as preliminary, substantive/administrative or final, it is meant to be understood by all legislative audiences, including the many lay users. As a result, clarity, precision and unambiguity are pursued. These serve legislative effectiveness, that is, the capacity of the legislative text to achieve the desired regulatory results. Legislative effectiveness contributes to regulatory efficacy, namely to the achievement of the desired regulatory results within the parameters set by the instructing officers. It is worth noting that the contributing factors to clarity have been adjusted to current social structures. Instead of plain language as a pursuit for language understood by the so-called average person, drafters now pursue easified language. This is language pitched at the level of subject and legal sophistication of the main audiences of the specific legislative text. Plain language was two-dimensional communication: from the state to the average audience. With the understanding that there is no average user and that legislative audiences vary depending on the legislative topic, easification does not require rigid flat intelligibility, but focused measured accessibility of the text by the specific audiences. Similarly, genderneutral language is giving way to gender-inclusive language, which eliminates considerations of gender in most legislative texts. Gender inclusivity departs from express constructions of inclusivity of the female (he or she s/he etc) and uses generic expressions that depart from the currently unavoidable gender-specific grammatical conventions (such as the third plural: a student passes their examination).

Legislation in the UK  509

31.6.  Drafting ‘Good Laws’ (Evaluation) The UK (Westminster) has been at the forefront of regulatory and legislative innovation since the early 1990s. Aided by its traditionally market-focused policy-making and its long established professionalisation of legislative drafting, the UK has prioritised regulatory efficacy and legislative effectiveness: the former is sought by regulatory reform that has led to a considerable reduction of administrative burdens and an undeniable reduction of legislative production, while the latter is sought by an effervescent academic debate on legislative quality and an often risqué trialling of new drafting techniques. The lack of a rigid manual and the individualistic approach to drafting by members of the OPC have produced exciting legislation that is now more user-friendly than ever before. This has been nurtured by the tradition of teaching legislative drafting as part of professional courses and of the very few master’s programmes dedicated to legislative drafting. Both courses are offered at the Sir William Dale Centre of the Institute of Advanced Legal Studies of the University of London. Understandably, Brexit seems to have tilted the balance towards quick mass-produced legislation to cover all eventualities. It remains to be seen whether speed of production has a detrimental effect on the quality of legislation. It will be interesting to see where legislation will go after Brexit. From an academic perspective, going back would be a real lost opportunity for good law in the UK.

Further Reading Cabinet Office, ‘Guide to Making Legislation’, July 2014, https://www.gov.uk/government/ publications/guide-to-making-legislation ——. ‘Legislative Process: Taking a Bill through Parliament: An Overview of the Process by Which Bills Become Law’, 20 February 2014, https://www.gov.uk/guidance/legislativ e-process-taking-a-bill-through-parliament M Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ [2012] Legisprudence 191–205 C Stefanou, ‘Drafters, Drafting and the Policy Process’ in C Stefanou and H Xanthaki (eds), Drafting Legislation: A Modern Approach (Aldershot, Ashgate, 2008) 321–33 H Xanthaki, Thornton’s Legislative Drafting, 5th edn (London, Bloomsbury, 2013) ——. Drafting Legislation: Art and Technology of Rules for Regulation (Oxford, Hart Publishing, 2014) ——. ‘Misconceptions on Legislative Quality: An Enlightened Approach to the Drafting of Legislation’ in Daniel Oliver (ed), Conceptions and Misconceptions of Legislation (Τhe Hague, Springer, 2018) 19–42 TG Watkin and D Greenberg, Legislating for Wales (Cardiff, University of Wales Press, 2018)

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32 Legislation in the EU WILLIAM ROBINSON*

Context Since the 1950s, the European Union (EU) has developed a new legal order which includes a body of legislation applying equally to all its Member States. This legislation is largely autonomous, although it generally relies on the rules and authorities of the Member States for its implementation, application and enforcement. EU legislation is adopted by the institutions established by the founding treaties in accordance with a procedure laid down by those treaties. These institutions have developed their own drafting style and established their own drafting rules to ensure consistency. Particular features of EU legislation are that it is authentic in 24 official languages and must be made accessible to users in all Member States, comprising some 450 million EU citizens. The ultimate authority for interpreting EU legislation is the Court of Justice of the European Union, which has developed principles of interpretation taking account of the particular features of EU legislation, which is in some respects comparable to public international law.

32.1. Introduction 32.1.1. Origins The law of the EU can trace its origins back to 1951, when the European Coal and Steel Community (ECSC) was established by the Paris Treaty that was concluded by just four countries.1 This treaty set the institutional framework that is still at the core of the EU today. It consisted of: • the Assembly, composed of ‘representatives of the peoples’ of the Member States; • the Council, composed of one minister from each Member State; • the High Authority, the independent body representing the interests of the ECSC and having the power to adopt acts which applied directly to Member States or to coal and steel undertakings; and * The author wishes to thank Manuela Guggeis for her invaluable assistance. 1 All EU Treaties and legislation can be found on the EUR-Lex website: http://eur-lex.europa.eu/en/index.htm.

512  William Robinson • the Court of Justice, composed of independent judges appointed by common agreement of the governments of the Member States. By the two Rome Treaties of 1957, two further European Communities were established to stand alongside the ECSC: the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom). These founding treaties were amended and added to over the years as new countries joined, and their scope was extended to new sectors. The entry into force of the Maastricht Treaty in 1993 saw the creation of the EU and the renaming of the EEC as the European Community (EC).

32.1.2.  The Present Position The Treaty of Lisbon, which came into force in 2009, was in the form of an amending treaty. It made textual amendments to the Treaty on European Union (TEU) and to the Treaty establishing the European Community, which has been renamed the Treaty on the Functioning of the European Union (TFEU).2 Following the departure of the UK in 2020, the EU now has 27 Member States.3 The institutional framework of the EU now comprises, insofar as is relevant to the adoption of legislation, the European Parliament, the Council of the European Union (hereinafter the Council), the European Council and the European Commission (hereinafter the Commission). The Court of Justice has now become the Court of Justice of the European Union (CJEU).4 The European Parliament is composed of 751 members directly elected by EU citizens. It holds its plenary sessions in Strasbourg or Brussels and its committee meetings in Brussels. It exercises the EU’s legislative and budgetary functions jointly with the Council. The Council is composed of one minister from each Member State. It meets in different configurations depending on the subject under discussion. A Committee of Permanent Representatives of the Governments of the Member States (COREPER) prepares the work of the Council. The presidency of the Council is held by each Member State on a six-monthly rotating basis. The European Council is composed of the heads of state or government of the Member States, together with its permanent President and the President of the European Commission. It does not exercise legislative functions, but defines the general political directions and priorities of the EU and provides the ‘necessary impetus for its development’.5 The Commission consists of one member from each Member State. The members are appointed for a term of five years and are to be wholly independent. The Commission’s

2 The ECSC Treaty expired in July 2003. The EAEC Treaty continues its separate existence. 3 In June 2016 a majority of voters in the UK voted to leave the EU. 4 See arts 13 ff TEU. Under Article 13 TEU, the other EU institutions are the European Central Bank and the Court of Auditors, while the European Economic and Social Committee and the Committee of the Regions are advisory bodies under art 300 TFEU. Under art 132 TFEU, the European Central Bank may adopt legal acts in the field of monetary policy. 5 Article 15(1) TEU.

Legislation in the EU  513 work is led by its President, who is proposed by the European Council and elected by the European Parliament. The Commission acts as a collegiate body in ensuring that the EU Treaties and EU law are applied, in executing the budget, and in exercising executive and management functions. The CJEU includes the Court of Justice and the General Court. The Court of Justice consists of one judge from each Member State and is assisted by Advocates General, who give advisory opinions before the final judgment. The General Court consists of two judges from each Member State. The judges and Advocates General are appointed for a renewable term of six years and are to be wholly independent. The CJEU ensures that ‘in the interpretation and application of the Treaties the law is observed’.6 It rules on actions brought by Member States, the EU institutions or natural or legal persons and gives preliminary rulings at the request of national courts on the interpretation of EU law or the validity of acts of the EU institutions (see section 32.8 below).

32.1.3.  A New Legal Order Walter Hallstein, the first President of the Commission, wrote that the European Community, the precursor of the EU, ‘is a legal phenomenon in three respects: it is a creation of the law, it is a source of law and it is a legal order’.7 It was created by the basic Treaties, which have now been superseded by the TEU and the TFEU. But these treaties do little more than set out a basic institutional framework and basic principles, together with goals and mechanisms, and much of the actual construction is done by the legal acts adopted by the EU institutions. It was the CJEU that held that the Treaties had established: [A] new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals … The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.8

The EU is a legal order in the sense that the system of rules it has created is not confined to regulating the operation of the EU’s internal market, but also guarantees the lawfulness of the actions of the institutions and legal protection of those subject to EU rules.

32.1.4.  General Principles Article 5 TEU sets out basic principles of the EU relevant to its legislative activities: the principles of conferral, subsidiarity and proportionality. 6 ibid art 19(1). 7 W Hallstein, Die Europaeische Gemeinschaft (Düsseldorf, Econ Verlag, 1973) ch 2. 8 Opinion 1/91 (Draft Treaty on a European Economic Area) [1991] ECR I-1061. The first reference to a new legal order was in Case 26/62 Algemene Transport- en Expeditie Onderneming van Gend en Loos [1963] ECR 1. The case law on primacy dates back to Case 6/64 Costa v ENEL [1964] ECR 585 and that on direct effect to Van Gend en Loos.

514  William Robinson Under the principle of conferral, the EU is to ‘act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. This is a long-standing formulation that was already in the EC Treaty, but the Lisbon Treaty adds a further provision: ‘Competences not conferred upon the Union in the Treaties remain with the Member States.’ Accordingly, the EU institutions cannot adopt any legal act unless there is a legal basis for it in the Treaties, and that legal basis must be specified in the citations in the preamble to the act.9 The choice of legal basis must be objectively justifiable.10 Under the principle of subsidiarity, which was first introduced by the Maastricht Treaty in 1993, the EU is to: [A]ct only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Under the principle of proportionality, the ‘content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. This principle was formulated by the CJEU as long ago as 195611 and was already in the EC Treaty. The principles of conferral and proportionality apply to all EU action, while the principle of subsidiarity applies only in areas that do not fall within the exclusive competence of the EU.12 The EU institutions must apply the principles of subsidiarity and proportionality as laid down in Protocol No 2. Under Article 5 of that Protocol, draft legislative acts must be justified with regard to those principles and must contain a detailed statement making appraisal of compliance with those principles possible. A key role in monitoring compliance with the principle of subsidiarity before any legislative act is adopted is given to the national parliaments by Protocol No 1. The CJEU takes account of compliance with the principles of subsidiarity and proportionality in actions for review of the legality of EU legal acts under Article 263 TFEU (see section 32.8.2 below). The Commission is required to submit annual reports on the application of the principles of conferral, subsidiarity and proportionality under Article 9 of Protocol No 2. Article 4(3) TEU refers to the principle of sincere cooperation, under which: The Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measures which could jeopardise the attainment of the Union’s objectives.

9 Under the Council’s Rules of Procedure, Decision 2009/937/EU [2009] OJ L325/35; see Annex VI, point A.1(c). 10 Case C-300/89 Commission v Council (Titanium Dioxide) [1991] ECR 2867, para 10. 11 Case 8/55 Federation Charbonniere de Belgique (judgment of 29 November 1956) [1954] ECR 292, 299. 12 The categories and areas of EU competence are defined in arts 2–6 TFEU.

Legislation in the EU  515 This principle was already set out in the EC Treaty. It forms the basis for the principle of indirect administration under which the EU relies to a large extent on the administration and courts of the Member States to apply, implement and enforce EU law.13 Other principles relevant to EU legislation were established by the CJEU, including the principle of the primacy of EU law14 and the principle of direct effect.15

32.2.  Types of Legal Acts 32.2.1. General The EEC Treaty provided for five legal acts, whose essential features remain unchanged today. Article 189 listed three types of binding acts, regulations, directives and decisions, and two types of non-binding acts, recommendations and opinions. In 1993, the Maastricht Treaty added two new sectors of competence – the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) – for which 10 new legal acts were created,16 bringing the total number of legal acts to 15. The differences between the acts were often minor and not self-evident. The Lisbon Treaty rationalised the types of act by cutting them back to the original five: regulations, directives, decisions, recommendations and opinions.

32.2.2. Regulations Under Article 288 TFEU: ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’17 On the meaning of ‘general application’ the CJEU has stated that ‘a regulation, being essentially of a legislative nature, is applicable not to a limited number of persons, defined or identifiable, but to categories of persons viewed abstractly and in their entirety’.18 The CJEU has further held: [B]ecause of its nature and its purpose within the system of sources of Community law [a  ­regulation] has direct effect and is, as such, capable of creating individual rights which national courts must protect.

13 See also section 32.2.1 below; JC Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 97 ff. 14 See the landmark case Case 6/64 Costa v ENEL [1964] ECR 585; see also Case 11/70 Internationale ­Handelsgesellschaft [1970] ECR 1125. 15 See section 32.2.2 below. 16 CFSP and JHA Decisions, with binding force; JHA Framework Decisions, similar to EC directives; EC and JHA conventions; CFSP common strategies; CFSP and JHA common positions, with binding force; and CFSP joint actions, with binding force. Article 12 TEU also referred to ‘defining the principles of and general guidelines for’ the CFSP, which is strictly not a legal act but an instrument. 17 Regulations adopted in relation to monetary union, Schengen or areas of enhanced cooperation may be applicable only in certain Member States in accordance with the Treaties. 18 Joined Cases 16/62 and 17/62 Confédération nationale des producteurs de fruits et légumes [1962] ECR 471, 478.

516  William Robinson … these rights arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself … So as to apply with equal force with regard to nationals of all the Member States, Community regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in Article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.19

By the same token, regulations can impose obligations directly on individuals.20 As part of the principle of direct applicability of regulations, Member States are barred from purporting to convert them into national law.21 However, a regulation may expressly call for implementing measures by Member States.22 Since a regulation is binding in its entirety, a Member State does not have the power to exempt its operators from obligations laid down in the regulation.23 Nor may a Member State refuse to apply a regulation on the ground that it had opposed the adoption of the regulation in the course of the pre-adoption negotiations or on the grounds of practical difficulties in putting the regulation into effect.24 Under Article 297(2) TFEU, regulations must be published in the Official Journal of the EU25 and they enter into force on the date specified in them or on the default date of the twentieth day following their publication. In certain cases, they may have retroactive effect.

32.2.3. Directives Under Article 288 TFEU: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’ Member States must transpose a directive into their national systems by virtue of the principle of sincere cooperation enshrined in Article 4(3) TEU and by virtue of specific provisions incorporated into each directive (transposition article). While the Member States cannot simply rely on administrative practices to fulfil their transposition obligations,26 the existence of general principles of constitutional or administrative law may suffice.27 Broadly speaking, Member States can transpose directives in one of two ways: by reproducing the provisions of the directive more or less word for word in their national measures (copy out), or by reworking the provisions of the directive to adapt them to the national



19 Case

93/71 Orsolina Leonesio [1972] ECR 287, paras 5, 6, 22 and 23. 34/73 Fratelli Variola [1973] ECR 981, para 10. 21 ibid paras 10 and 11. 22 Case 230/78 Eridania-Zuccherifici nazionali [1979] ECR 2749, para 34. 23 Case 18/72 Granaria Graaninkoopmaatschappij [1972] ECR 1163, paras 15–18. 24 Case 39/72 Commission v Italy [1973] ECR 101, in particular para 22. 25 https://eur-lex.europa.eu/oj/direct-access.html. 26 Case 102/79 Commission v Belgium [1980] ECR 1473, para 11. 27 Case C-475/08 Commission v Belgium [2009] ECR I-11503, para 41. 20 Case

Legislation in the EU  517 legal system (elaboration). Increasingly, the trend is to opt for copying out in order in particular to avoid two dangers: • under-implementation of the directive, with a risk of infringement proceedings; and • gold-plating – that is, adding additional obligations not in the directive that would place operators in the Member State concerned at a competitive disadvantage to those in other Member States.28 One major problem with the copy-out approach is that directives are drafted in a less detailed manner than regulations precisely so that Member States are left with sufficient latitude when transposing them, with the result that copy-out will leave the national provisions lacking the requisite precision.29 Unlike regulations, directives are not directly applicable, but the CJEU has developed the doctrine of ‘direct effect’ to hold that directives can confer rights on individuals if they are clear, precise and unconditional.30 The principle of directives conferring rights directly on individuals in their dealings with state authorities (vertical direct effect) was confirmed in the Van Duyn case31 and in numerous subsequent cases, but directives cannot be relied on by individuals as against other individuals (horizontal direct effect). A Member State which has failed to transpose a directive cannot rely on the principle of direct effect to escape liability for the breach of its obligations.32 Under Article 297(2) TFEU, directives which are addressed to all Member States must be published in the Official Journal and they enter into force on the date specified in them or on the default date of the twentieth day following their publication. By their nature, generally they cannot have retroactive effect.

32.2.4. Decisions Under Article 288 TFEU: ‘A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.’ Decisions specifying addressees may be addressed to one or more Member States or to one or more natural or legal persons. The CJEU has held that where a decision is addressed to Member States, it may still have direct effect.33 Decisions do not generally include specific transposition provisions, although they may require national implementing measures. Under Article 297(2) TFEU, decisions which do not specify addressees must be published in the Official Journal and they enter into force on the date specified in them or on the default date of the twentieth day following their publication. 28 See, eg, point 2.10 of the UK Transposition Guidance (February 2018), available at: https://www.gov.uk/ government/publications/implementing-eu-directives-into-uk-law. 29 See Joint Practical Guide for persons involved in the drafting of European Union legislation, point 2.2.2. 30 The first expression of the doctrine was in relation to an article of the Treaty in Van Gend en Loos (n 8). It was extended to directives (and decisions) on the basis of the principle of the effectiveness (effet utile) of EU measures in Case 9/70 Grad [1970] ECR 825. 31 Case 41/74 Van Duyn [1974] ECR 1337, paras 12–14. 32 Case C-475/08 Commission v Belgium [2009] ECR I-11503, para 44. 33 Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I-5567, paras 12–15.

518  William Robinson

32.2.5. Recommendations Under Article 288 TFEU, recommendations have no binding force. They are generally addressed to all Member States. They are classic instruments of soft law whose use has been encouraged as part of efforts to reduce recourse to legislation at the EU level.34 They may also be part of efforts to coordinate policies of the Member States in an area within the scope of the Treaties that may later lead to EU legislation. The CJEU has accepted that a national court may make a reference for a preliminary ruling regarding the interpretation of a recommendation.35

32.2.6. Opinions Under Article 288 TFEU, opinions have no binding force. They are generally adopted by an institution to set out its views on a situation or process. They may form part of preparations leading to the adoption of legislation and are mentioned in the list of procedural acts that must be referred to in the preambles to legal acts under Article 298 TFEU.

32.2.7.  Inter-institutional Agreements The European Parliament, the Council and the Commission have in the past concluded inter-institutional agreements covering various aspects of the legislative process and EU legislation. Article 295 TFEU, a new provision inserted by the Lisbon Treaty, provides that these institutions may make arrangements for their cooperation by means of interinstitutional agreements ‘which may be of a binding nature’. Such agreements will be binding only on the institutions themselves.

32.2.8.  Legislative and Non-legislative Procedure Binding legal acts of the EU may, since the entry into force of the Lisbon Treaty, be divided into legislative and non-legislative acts. Legislative acts can only be adopted by the European Parliament or the Council, either jointly or separately, but not all the legal acts that they adopt are legislative acts. The decisive criterion is the adoption procedure. Under Article 289(3) TFEU: ‘Legal acts adopted by legislative procedure shall constitute legislative acts.’ Two types of legislative procedure are referred to in Article 289. Under paragraph 1, the ordinary legislative procedure consists in ‘the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission’, as set out in detail in Article 294 TFEU. Under paragraph 2, a special legislative procedure consists in the adoption in ‘the specific cases provided for by the Treaties’ of ‘a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament’.

34 See

Commission, ‘European Governance – A White Paper’ (Communication) COM (2001) 428, point III.3.2. C-322/88 Grimaldi [1989] ECR 4407.

35 Case

Legislation in the EU  519 Thus, the distinction between legislative and non-legislative acts is now explicitly set out in the Treaties: if the article in the Treaty conferring competence on the EU provides that an act has to be adopted by the ordinary legislative procedure or a special legislative procedure, then the act is legislative. If the Treaty article does not mention a legislative procedure, then the act is non-legislative. One of the consequences of this distinction is the increased transparency of the legislative procedure: when the Council deliberates and votes on a draft legislative act, it must meet in public (Article 16(8) TEU) and all the related documents are public.

32.2.9.  Delegated and Implementing Acts The implementation of EU law is in principle left to the Member States, under the supervision of the Commission and the CJEU.36 This structure was chosen in order to avoid the need for a large central European administration and to comply with the principle of subsidiarity by leaving the Member States to decide on the most appropriate measures to ensure the fulfilment of obligations resulting from the Treaties or acts of the institutions. There are exceptions to the principle of ‘indirect administration’:37 in some cases the Treaty confers implementing powers directly on the Commission (eg, Articles 105 and 106 TFEU in the field of competition law) and in others, such powers are conferred on the Commission by legislative acts. Before the Lisbon Treaty, the Council could decide to confer on the Commission the power to implement the rules it had laid down or, in specific cases, to exercise implementing powers itself (Article 202 EC Treaty). A system of supervision of the Commission’s activities by committees composed of representatives of the Member States was put in place (‘Comitology’), under which the issue could be referred to the Council in event of a deadlock.38 The Lisbon Treaty has re-affirmed the principle of indirect administration and also the implementing role of the Commission by incorporating specific provisions on ‘delegated acts’ and ‘implementing acts’.

32.2.9.1  Delegated Acts Under Article 290 TFEU: ‘A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain nonessential elements of the legislative act.’ Therefore, key features are that the power to adopt delegated acts can be conferred only by legislative acts, it can be conferred only on the Commission and it can only relate to supplementing or amending non-essential elements.39 36 See Declaration No 43 annexed to the Lisbon Treaty relating to the Protocol on the application of the principles of subsidiarity and proportionality. 37 See further Piris (n 13) 97 ff. 38 The first Comitology decision, Council Decision 87/373/EEC [1987] OJ L197/33, was replaced by Council Decision 1999/468/EC [1999] OJ L184/23, which was amended by Council Decision 2006/512/EC [2006] OJ L200/11 to introduce a new procedure giving the European Parliament a right of scrutiny. 39 See in general the Commission Communication on Implementation of Article 290 of the TFEU (COM(2009)673); and Case C-355/10 European Parliament v Council [2012] ECR I-0000 (ECLI:EU:C:2012:516),

520  William Robinson The legislative act must explicitly lay down the conditions to which the delegation is subject, which may include the right for the legislative authority to revoke the delegation or to block the entry into force of a delegated act by raising an objection.

32.2.9.2.  Implementing Acts Article 291 TFEU first provides that Member States are to adopt the necessary national implementing measures and then continues: ‘Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union [on the Common Foreign and Security Policy], on the Council.’ The power to adopt implementing acts can therefore be conferred by non-legislative acts as well as legislative acts and, while it will generally be conferred on the Commission, it may in specified cases be conferred on the Council. In both cases, the implementing measure has to respect the limits and the principles established in the act conferring the power. The exercise by the Commission of implementing powers conferred upon it under this procedure is governed by rules laid down by Regulation (EU) No 182/2011.40 The Commission acts in close consultation with a large number of committees composed of representatives from the Member States. The system is similar to the old Comitology system, save that the European Parliament is now fully involved alongside the Council both in the adoption of the regulation on the supervision of the Commission’s exercise of implementing powers and in the scrutiny of draft implementing acts.

32.2.9.3.  Criteria for Delegated Acts and Implementing Acts The distinction between delegated acts and implementing acts was not clearly drawn in the Lisbon Treaty. The case law of the CJEU has shed some light on the question.41 In March 2016, the European Parliament, the Council and the Commission adopted a Common Understanding on Delegated Acts setting out the criteria for their use and detailed procedural arrangements.42 In July 2019, non-binding criteria for the application of Articles 290 and 291 TFEU were agreed by the European Parliament, the Council and the Commission, partly based on the case law of the CJEU.43

in which the Court of Justice states in particular that provisions entailing political choices cannot be delegated and that ascertaining which elements are essential ‘must be based on objective factors amenable to judicial review’ (paras 64–68). 40 [2011] OJ L55/11. 41 See in particular Case C-427/12 Commission v European Parliament and Council [2014] ECR I-0000 (EU:C:2014:170), paras 33–40; Case C-88/14 Commission v Parliament and Council (‘the Visa Reciprocity Mechanism case’), ECLI:EU:C:2015:499; Case C-286/14 Parliament v Commission (‘the Connecting Europe Facility/CEF case’), ECLI:EU:C:2016:183, paras 38–60. 42 See Annex 1 to the 2016 Inter-institutional Agreement on Better Law-Making referred to in section 32.9.7 below. The EU institutions have established a register of delegated acts: https://webgate.ec.europa.eu/regdel/#/ home. 43 [2019] OJ C223/1.

Legislation in the EU  521

32.3.  Legislative Procedure 32.3.1. General As part of the ‘Community method’ established by the first European Treaties, basic legislation was adopted by the Council on the basis of a proposal from the Commission. The Assembly, as the European Parliament was then known, had only a consultative role. With successive amendments to the Treaties, the role of the European Parliament has been reinforced. Since the entry into force of the Lisbon Treaty, almost all basic legislation has been adopted jointly by the Parliament and the Council on the basis of a proposal from the Commission (known as the ‘co-decision procedure’). The co-decision procedure, which was first introduced by the Maastricht Treaty in 1993, is now the ‘ordinary legislative procedure’ under Article 294 TFEU. There are just a few fields where co-decision does not apply, such as taxation, the CFSP and the conclusion of international agreements.44 The basic principle of the ordinary legislative procedure is that the same text is adopted by the two institutions.45

32.3.2.  The Commission Proposal In formulating its proposal, the Commission seeks to ‘promote the general interest of the Union’ and enjoys full independence from the other institutions and the Member States.46 It is responsible for all the preparatory work. At an early stage, the Commission department responsible will consult the Member States and other interested parties about the policy options, and may seek advice on technical issues from groups of experts. It may publish a Green Paper setting out the issues and policy options under consideration and inviting comments, or a White Paper to outline tentative proposals and to invite comments. In 2003, the European Parliament, the Council and the Commission agreed on increased use of public consultations and impact assessments to improve the preparation of legislation.47 The Commission now systematically carries out public consultations on legislative initiatives and has set up a website providing access to all ongoing consultations.48 For all legislative initiatives, the Commission publishes a roadmap describing the problem that the initiative aims to address and possible policy options, and giving an overview of the planned stages in the development of the initiative.49 The Commission department

44 See art 113 TFEU, art 24 TEU art Art 218 TFEU, respectively. 45 See Art 294(3) and (4) TFEU. 46 See art 17 TEU. The Commission must take account of the views of the European Parliament and Council when fixing its multi-annual and annual work programmes under points 4 ff of the 2016 Interinstitutional Agreement on Better Law-Making referred to in section 32.9.7 below. 47 Inter-institutional Agreement on Better Law-Making [2003] OJ C321/1, points 25 and 26. The 2003 Agreement has now been replaced by the 2016 Agreement referred to in section 32.9.7 below. 48 https://ec.europa.eu/info/consultations_en. 49 A list of all roadmaps is available on the website of the Commission Secretariat-General: https://ec.europa.eu/ info/law/law-making-process/planning-and-proposing-law_en.

522  William Robinson responsible carries out an impact assessment on environmental, social and economic impacts, including impacts on small and medium-sized enterprises and competitiveness, to help structure and develop policies following Commission Guidelines.50 The quality of its impact assessment is checked by a semi-independent Regulatory Scrutiny Board.51 The Commission adopts its proposal in all the official languages.52 It is published as a ‘COM document’ on EUR-Lex and in the Commission’s own register of documents.53 The proposal must generally be submitted for consultation to the European Economic and Social Committee,54 and in appropriate cases to the Committee of the Regions.55 It is also forwarded to national parliaments, which may deliver a reasoned opinion on whether the draft act complies with the principle of subsidiarity.56 The text of the Commission’s proposal forms the basis of all discussions in the other institutions. Article 293(1) TFEU states that where ‘pursuant to the Treaties, the Council acts on a proposal from the Commission, it may amend that proposal only by acting unanimously, except in the cases referred to in’ a small number of Treaty provisions.

32.3.3.  The European Parliament Within the European Parliament, the proposal is assigned to the relevant committee57 and a rapporteur is chosen. The rapporteur is given a mandate by the committee (or in some cases a mandate by the plenary)58 and represents the European Parliament in the negotiations with the Council and the Commission. When those negotiations are concluded, the rapporteur will present to the committee a draft report comprising a draft legislative resolution and, where appropriate, amendments to the draft act. After debating that draft, the committee submits to the plenary for voting its final report, again comprising a draft legislative resolution and any amendments to the draft act.59 In most cases, the Parliament proposes textual changes (known as ‘amendments’) to the Commission’s proposal. In the procedure at first reading, at the committee stage amendments may be tabled by any committee member, while in the plenary stage amendments are admissible only if they are tabled by the committee responsible, by a political group or by 40 Members of the European Parliament (MEPs).60 The European Parliament has established within its Directorate-General for Parliamentary Research Services a Directorate for Impact Assessment and European Added Value to provide 50 The Commission maintains a website with full documentation on impact assessments, including its Impact Assessment Guidelines (SEC (2009) 92): https://ec.europa.eu/info/law/law-making-process/planning-and-proposinglaw/impact-assessments_en. The European Parliament, the Council and the Commission have adopted common rules on impact assessments in s III of the 2016 Agreement referred to in section 32.9.7 below. 51 See https://ec.europa.eu/info/law/law-making-process/regulatory-scrutiny-board_en. 52 See section 32.4 below. 53 http://ec.europa.eu/transparency/regdoc/index.cfm?. 54 See art 304 TFEU. 55 See ibid art 307. 56 In accordance with arts 2 and 3 of Protocol No 1, which refers in turn to Protocol No 2. 57 There are 20 standing committees and a number of special committees: see www.europarl.europa.eu/commit tees/en/home.html. 58 European Parliament Rules of Procedure, r 73. 59 Full information on the parliamentary procedure can be found in the European Parliament Legislative ­Observatory: https://oeil.secure.europarl.europa.eu/oeil/home/home.do. 60 European Parliament Rules of Procedure, rr 208 and 169, respectively.

Legislation in the EU  523 ex ante and ex post impact assessment services to parliamentary committees, together with an assessment of the added value of future or current EU policies.

32.3.4.  The Council Within the Council, the proposal is examined by one of the specialised working parties and committees known as the ‘Council preparatory bodies’, composed of national experts from all the Member States and chaired by a representative of the country holding the six-monthly presidency of the EU.61 Administrative support is provided by the General Secretariat of the Council. The chair seeks to facilitate political compromises in the working party. After all technical aspects have been discussed by the national experts, the chair will ask COREPER or the Council itself (in the configuration of the ministers for the subject concerned) to define the political position in a ‘general approach’. The general approach constitutes the mandate for the negotiations with the European Parliament and the Commission. To accommodate the different interests of all Member States, numerous textual changes to the Commission’s proposal are generally suggested.62

32.3.5.  Trilogues and Reaching Agreement between the Institutions The negotiations between the three institutions are conducted in the ‘informal trilogues’, whose use was formalised in 2007.63 The trilogues serve to bring the positions of the three institutions closer together and to enable the representatives of each institution to keep it informed of the direction of the negotiations. The trilogues have proved so effective that over 75 per cent of legislative acts are now adopted at first reading.64 However, their increased role has prompted criticism that they jeopardise the basic principle that the EU decision-making process (and in particular its legislative procedure) should be open and transparent.65 However, if the European Parliament and the Council do not agree on the Commission proposal at first reading, it passes to a second reading,66 after which, if there is still no agreement, a conciliation procedure is launched.67 While the first reading has no time limitations, the second reading and the conciliation stage are subject to strict time limits.68 If the European Parliament or the Council fails to approve the text within these time limits, the proposed act is deemed not to have been approved. 61 There are currently over 150 such bodies: https://www.consilium.europa.eu/en/council-eu/preparatory-bodies. 62 Council Rules of Procedure [2009] OJ L325/35, Annex V, point 15. 63 See the Joint Declaration on practical arrangements for the co-decision procedure [2008] OJ C102E/111. 64 For the details of the procedure, see art 294(3)–(6) TFEU. See the European Parliament’s website on the ordinary legislative procedure: www.europarl.europa.eu/ordinary-legislative-procedure/en/ordinary-legislativeprocedure.html. 65 See the judgment of the General Court in Case T-540/15 De Capitani v Parliament, ECLI:EU:T:2018:167, paras 68 ff. See also the decision of the European Ombudsman of 12 July 2016 in Case OI/8/2015/JAS concerning the transparency of trilogues: https://www.ombudsman.europa.eu/en/decision/en/69206. 66 See art 294(7)–(9) TFEU. 67 See ibid art 294(10)–(12). 68 For the second reading, see art 294(7) and (8); for the third reading, see art 294(12) and (13). Extensions are possible under art 294(14).

524  William Robinson

32.3.6.  The Role of the Commission in the Co-decision Procedure If the Commission takes the view that, as a result of the amendments made by the European Parliament and the Council, its proposal has been ‘denatured’ – that is, changed to such an extent that it no longer reflects the original intention – it may withdraw its proposal at any time before the adoption of the Council position,69 after which the act may no longer be adopted. This power, while rarely exercised, gives the Commission a stronger position during the negotiations. If it becomes evident that substantial changes to a proposal are needed to take account of the concerns of the other institutions, the Commission may agree to submit an amended proposal.

32.4. Languages Multi-lingualism is one of the fundamental principles of the EU. Article 3(3) TEU provides that the EU is to ‘respect its rich cultural and linguistic diversity’.70 More specifically, Article  342 TFEU provides: ‘The rules governing the languages of the institutions of the Union shall … be determined by the Council, acting unanimously by means of regulations.’ The importance attached to language matters and their sensitivity are demonstrated by the fact that the rules are adopted by the Council acting unanimously and without the involvement of the Parliament or the Commission. Council Regulation No 1 of 1958 lays down the list of the ‘official languages’ and provides that ‘Regulations and other documents of general application shall be drafted in the official languages’ and that the Official Journal of the European Union is to be published in the official languages.71 Each time new Member States have joined the EU, Regulation No 1 has been amended to add their languages to the list, which now includes 24 languages.72 The Treaties are expressly declared to be authentic in all the official languages.73 The CJEU has long recognised the importance of EU legislation being interpreted and applied uniformly in all Member States and hence of taking account of the different language versions.74 In the CILFIT case,75 the CJEU stated that ‘it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic’.

69 See art 293(2) TFEU. Some limits on the power of withdrawal have been laid down by the CJEU in Case C-409/13 Council v Commission [2015] ECR I-0000 (ECLI:EU:C:2015:217). In Point (9) of the 2016 Agreement referred to in section 32.9.7 below, a procedure to be followed when the Commission intends to withdraw a proposal is laid down and the Commission agrees to take account of the positions of the other institutions. 70 The Charter of Fundamental Rights reiterates this obligation in art 22, and goes on, in art 21, to prohibit any discrimination on grounds of, amongst other things, language. 71 [1958] OJ 17/385; see arts 1, 4 and 5. 72 When Ireland joined in 1973, the Irish language was not given the status of an official language. This was eventually done by Council Regulation (EC) No 920/2005 [2005] OJ L156/3. 73 See art 55 TEU and art 358 TFEU. 74 For some of the earliest expressions of this principle, see Case 19/67 Van der Vecht [1967] ECR 345; Case 29/69 Stauder [1969] ECR 419, para 3. 75 Case 283/81 CILFIT [1982] ECR 3415, para 18.

Legislation in the EU  525

32.5. Accessibility The TEU, as amended by the Lisbon Treaty, makes various references to the need for openness and transparency, and to the rule of law.76 A general right of access to EU documents is given by Article 15 TFEU, with detailed rules being laid down in a 2001 Regulation.77 Under Article 297 TFEU, all EU legislative acts, all regulations and all directives which are addressed to all Member States must be published in the Official Journal of the European Union. The Publications Office of the European Union is responsible for publishing all EU documents. The electronic version of the Official Journal is now the authentic version.78 The Publications Office makes available without charge in all the official languages a system of websites and databases on all aspects of EU law through the EUR-Lex portal.79 It includes: the electronic version of the Official Journal; collections of treaties and legislation, including summaries and consolidated texts of EU legislation; search engines; and databases on legislative procedures. The EU institutions also maintain large databases of information about the legislative process and its preparatory stages.80 The European Parliament goes to great lengths to open up its sessions to the public.81 When the Council deliberates and votes on draft legislation, its sessions are open to the public.82 Most of the departments of the Commission maintain public websites offering explanatory material about legislation in their respective sectors.83 The CJEU ensures that the rules on publication are strictly complied with.84

32.6.  The Drafting Process and Drafting Rules 32.6.1.  The Drafting Process The first draft is written, usually in English, by technical experts in the Commission Directorate-General (DG) responsible for the subject matter, and discussed and agreed within that DG. It is then submitted to all the other Commission DGs concerned, a process known 76 On openness, see the preamble and arts 1, 10 and 11; on the rule of law, see the preamble and art 2, and the Charter of Fundamental Rights. 77 Regulation (EC) No 1049/2001 of the European Parliament and of the Council [2001] OJ L145/43. 78 See Council Regulation (EU) No 216/2013 [2013] OJ L69/1. 79 http://eur-lex.europa.eu/homepage.html. 80 See the websites of the EU institutions accessible from their common server Europa: https://europa.eu/ european-union/about-eu/institutions-bodies_en; European Parliament Legislative Observatory: https://oeil. secure.europarl.europa.eu/oeil/home/home.do?lang=en; European Parliament Legislative Train Schedule: www. europarl.europa.eu/legislative-train; Council site on documents and publications: https://www.consilium.europa. eu/en/documents-publications; Council database on co-decision procedures: https://www.consilium.europa.eu/ en/documents-publications/ordinary-legislative-procedure. 81 The European Parliament Multimedia Centre offers live streaming and recordings of plenary and committee sessions: https://multimedia.europarl.europa.eu/en/home. 82 See the Council’s Rules of Procedure, Decision 2009/937/EU [2009] OJ L325/35, art 7. 83 https://ec.europa.eu/info/departments_en. 84 See, in particular, Case C-370/96 Covita [1998] ECR I-7711, paras 26 and 27 (non-publication of one language version of a regulation); Case C-345/06 Gottfried Heinrich [2009] ECR I-1659, para 63 (provisions not published on security grounds); Case C-161/06 Skoma-Lux [2007] ECR I-10841, paras 33, 34, 38, 48 and 49 (failure to publish in the prescribed form).

526  William Robinson as the Inter-Service Consultation (ISC). The ISC serves to ensure that the Commission acts in a coordinated manner and it is supervised by the Commission Secretariat-General, which makes sure that all measures proposed correspond to the Commission’s political priorities. The draft is also examined by two separate departments of the Commission Legal Service: in one, a lawyer specialising in the subject matter checks the lawfulness of the proposal and whether it is consistent with other EU legislation; in the other, a lawyer specialising in legislative drafting checks that the draft is clear and complies with all the EU drafting rules. The draft may also be edited by an editing service to ensure that it is grammatically correct. At the end of the procedure within the Commission, the draft is translated into the other languages so that it can be adopted in all the official languages by all the commissioners. The text thus adopted, together with an explanatory memorandum, constitutes the Commission proposal that is submitted to the European Parliament and the Council. From this point, all changes to the Commission’s proposal require the agreement of the representatives of the European Parliament, the Council and the Commission. For practical reasons, the negotiations between the three institutions focus on a single-language version, now almost invariably the English version. Any changes to the proposal must be in the form of suggested amendments to the actual text.85 All the negotiations focus on which of the amendments suggested by the European Parliament or the Council can be accepted for inclusion in the Commission proposal. Once agreement in principle has been reached on those amendments, the text in the original language incorporating all the amendments is translated into the other languages so that the legislative act can be formally adopted by the European Parliament and the Council in all the official languages. The work of translating the final text is shared by the translation services of the European Parliament and of the Council. Both the European Parliament and the Council have teams of lawyer-linguists who are responsible for ensuring that all legislation complies with the drafting rules and all the language versions produce the same legal effect. While the lawyer-linguists were formerly only involved at the final stage, when agreement had been reached in principle, they now give drafting guidance at earlier stages.86

32.6.2.  Drafting Rules The Treaties themselves lay down only minimal requirements for the form and presentation of EU legal acts,87 leaving it to the institutions to establish more detailed rules. The Rules of Procedure of the European Parliament88 and those of the Council89 set out the basic format for EU legislative acts.

85 See Annex V, point 15 to the Council’s Rules of Procedure, Decision 2009/937/EU [2009] OJ L325/35. 86 See M Guggeis and W Robinson, ‘“Corevision”: Legal-Linguistic Revision in the European Union “Codecision” Process’ in CJW Baaij (ed), The Role of Legal Translation in Legal Harmonisation (Alphen aan den Rijn, Kluwer Law International, 2012). 87 See arts 288, 296 and 297 TFEU. 88 See r 77 on ‘Requirements for the drafting of legislative acts’, available at: www.europarl.europa.eu/sides/ getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+TOC+DOC+XML+V0//EN&language=EN. 89 [2009] OJ L325/35, Annex VI.

Legislation in the EU  527 In 1997, the Intergovernmental Conference adopted Declaration 39 annexed to the Amsterdam Treaty, which emphasises the importance of good-quality legislation and calls on the EU institutions to draw up by ‘common accord guidelines for improving the quality of the drafting of Community legislation’.90 The European Parliament, the Council and the Commission duly adopted an Agreement, with 22 drafting guidelines drawn up in collaboration with the Member States.91 While little in them was actually new, they were of significance in reflecting a consensus on the basic requirements for drafting EU legislation, ironing out divergent practices and recording expressly some unwritten conventions. The lawyer-linguists of the three institutions then drew up a Joint Practical Guide for persons involved in the drafting of European Union legislation. The Guide developed the content and explained the implications of the guidelines in the 1998 Agreement. The Guide has been translated into all the official languages and has been widely disseminated both within the institutions and beyond. It was updated in 2013 to take account of the Lisbon Treaty and other developments.92 Since 1963, the Council’s Legal Service has produced its own drafting manual, the Manual of Precedents, which exists in all the official languages.93 It set out all types of acts in schematic form, showing the usual method of presentation and the most common formal provisions. It also contained general information on the structure of acts and the way in which they should be drafted. It was updated regularly, with more material on legal drafting problems being included over the years. It was eventually split into two parts: one on legal acts and the other on international agreements. The Manual on Legislative Drafting of the Commission Legal Service was first drawn up in 1985 and the last edition (the third) was produced in 1997. It was aimed mainly at lawyers and staff closely involved in the drafting process, and was written in technical language with a quite opaque structure. To take account of the special characteristics of its decentralised drafting system, in the 1990s the Commission developed a word-processing program, called LegisWrite, to standardise the basic structure and presentation of legal acts. In 2014, a Drafter’s Assistance Package was incorporated into LegisWrite. It offers standard formulations and guidance, as well as links to the Commission Legal Revisers’ internal website, giving drafters more assistance. To ensure that texts published by the different EU institutions, bodies and agencies are presented in a uniform manner to make them more accessible to users, the Publications Office has issued an Inter-institutional Style Guide in all the official languages.94 While the Guide focuses mainly on rules concerning the presentation of texts, it does include sections touching on legislative matters. The lawyer-linguists of the European Parliament and of the Council worked with the legal revisers of the Commission to produce, in 2016, a Joint Handbook for the Presentation and Drafting of Acts Subject to the Ordinary Legislative Procedure.95 It sets out to harmonise 90 [1997] OJ C340/139. 91 [1999] OJ C73/1. 92 http://eur-lex.europa.eu/content/techleg/KB0213228ENN.pdf. 93 The 2002 version is available from the Publications Office website: https://publications.europa.eu/en/publi cation-detail/-/publication/431ccffd-00c2-491a-b423-ce709af0d6c3/language-en/format-PDF/source-search. 94 http://publications.europa.eu/code/en/en-000100.htm. 95 https://www.consilium.europa.eu/media/32619/joint-handbook-en-january-2018_2018_01_25_def.pdf.

528  William Robinson the drafting practices of the three institutions, give guidance and suggest standard formulas to be used.

32.6.3.  Rules on Legal-Linguistic Revision In the 1998 Agreement on drafting quality, the EU institutions responded to the call in Declaration 39 for practical measures to ensure that the drafting guidelines are properly applied by undertaking to ‘organise their respective internal procedures in such a way that their legal services, including their legal/linguistic experts, may, each for their own institution, make drafting suggestions in good time’. In the 2003 Agreement on better law-making, the institutions undertook to improve their scrutiny of the wording of texts adopted, if necessary by allowing extra time before an act was finally adopted.96 In 2007, the institutions adopted a Joint Declaration on practical arrangements for the co-decision procedure, which emphasised the importance of a consistent and consensual approach to revision.97 The Rules of Procedure of both the European Parliament98 and the Council99 now include provisions on the importance of the scrutiny of the drafting of their legislation by their lawyer-linguists. The emphasis is now on improving the drafting quality as early as possible, since the more advanced the stage in the legislative process, the less scope there is for improving a draft. And once a text has been adopted, there is little scope for making any changes affecting its content, except to correct obvious mistakes and formal errors.100

32.7.  Structure and Style 32.7.1. Structure Under Guideline 7 in the 1998 Agreement, all EU legal acts should have the same basic structure: a title, a preamble, enacting terms and, where necessary, an annex. The title of an EU act comprises: the indication of the type of act, the name of the institution or institutions concerned, a serial number,101 the date of adoption and an indication of the subject matter, as in Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative.102 96 [2003] OJ C321/1, points 25 and 32. However, this provision is not reproduced in the 2016 Agreement (referred to in section 32.9.7 below), which repealed the 2003 Agreement. 97 [2007] OJ C145/5. 98 See r 193(2). See also rr 75 and 78, available at: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// TEXT+RULES-EP+20140701+TOC+DOC+XML+V0//EN&language=EN. 99 [2009] OJ L325/35; see art 22. 100 See Case 131/86 United Kingdom v Council [1988] ECR 905, in particular paras 35 and 37. 101 Since 1 January 2015, all EU acts are numbered according to a single simplified numbering system: see http:// eur-lex.europa.eu/content/tools/elaw/OA0614022END.pdf. 102 [2011] OJ L65/1.

Legislation in the EU  529 The full title is the primary means of identifying the act in subsequent references, although it may be abbreviated. Acts may also be given a short title (Guideline 8 and Joint Practical Guide 8.7 and 8.8), though this is not often done in practice. Preambles consist of two main parts: the citations and the recitals. Under Guideline 9, the citations set out the legal basis in the Treaties for the adoption of the act103 and any procedural requirements under that legal basis.104 Under Guideline 10, the recitals set out the reasons on which the act is based, as required by Article 296 TFEU. The enacting terms are divided into articles, which may be sub-divided into numbered or unnumbered paragraphs and sub-paragraphs. In longer acts, the articles may be grouped in chapters, which may consist of different sections. In extremely complex texts, the chapters may be grouped into titles, which themselves may be grouped into parts (Joint Practical Guide 15.4). A standard order of the articles has been laid down in Guideline 15. An annex may be attached to an EU act to set out material which is technical or especially lengthy (Guideline 22). An annex is an integral part of the act, but is separate from the enacting terms. In practice, annexes are often used to present material that is destined to be amended frequently. The structure of EU rules is a hierarchical one, with the most fundamental rules being laid down in the Treaties (the TEU and the TFEU) and then the basic rules being laid down in legislative acts adopted jointly by the European Parliament and the Council under the ‘ordinary legislative procedure’ under Article 289 TFEU. These basic acts may then be fleshed out by delegated acts adopted by the Commission under Article 290 TFEU or by implementing acts under Article 291 TFEU. The structure is not always wholly rational. EU rules have often been adopted piecemeal, as and when needs were perceived and as and when progress with a legislative initiative was possible. The rules in one sector may also be fragmented because of the need to respect the confines of different legal bases, which may entail different procedures and even different legislative authorities. Sometimes it is only after the adoption of an act that the need for exceptions and special provisions becomes apparent, and they may be adopted by ad hoc acts. Efforts are now being made to tackle the problem by means of recasts or reviewing and rationalising all EU law in one sector as part of the REFIT programme (see section 32.9).

32.7.2.  Drafting Style Early European acts were drafted in very broad terms, leaving much latitude in interpretation and application to the executive and the courts. In 1974, an English judge famously said of EC legislation: ‘The enactments give only an outline plan. The details are to be filled in by the judges.’105 Over the years, there has been a shift from the ‘fuzzy’ or general-principles style familiar to many countries of continental Europe towards the ‘fussy’ or more detailed drafting



103 Council

Rules of Procedure [2009] OJ L325/35, Annex VI, point A.1(c). art 296 TFEU. 105 Lord Denning in Bulmer Ltd v Bollinger SA [1974] 4 Ch 401, 411. 104 See

530  William Robinson style familiar to common lawyers. EU acts have become longer and more complex, not just because of the entry of Member States with different drafting traditions, but also because EU rules are entering ever more areas which have to be regulated in detail and because of the existence of more international law that must be integrated into the EU system. Another reason is that it is necessary to embed any new act in the acquis, the substantial body of existing EU legislation, so a new act has to make clear how it relates to acts already in existence in the same area. Finally, more ‘special provisions’ and ‘exemptions’ have to be inserted to accommodate the needs and wishes of more Member States. This is inevitable in an EU which is committed to ‘respect its rich cultural … diversity’106 and in a legislative procedure in which any amendment to the Commission’s proposal requires unanimity amongst all the Member States.107 The enacting terms have become more precise and detailed. Many more definitions are now included (Guideline 13) and specific references have replaced vague ones (Guideline 16). While early legislative acts often left the Commission very wide discretion in implementing them, the TFEU itself now stipulates that ‘the objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts’ (Article 290). The drafting rules encourage the spelling-out of things that once might have been left open, such as transitional provisions and repeals (see, respectively, Joint Practical Guide 15.1.5 and Guidelines 20 and 21). In particular, the number of recitals has increased noticeably. In the early days, when legislation was adopted by the Council alone and there was no publicly accessible record of the debates leading up to adoption, the recitals had to explain why EU acts had been adopted. Now that the EU legislative procedure involves the European Parliament, and is more open and transparent, that need is less strongly felt, but other factors have come into play. To forestall any challenge of an EU act under Article 263 TFEU on the grounds that the statement of reasons for an act is not sufficient to satisfy the requirements of Article 296 TFEU, drafters may include more material in the recitals as a precaution. Standard formulas are inserted to confirm that the act complies with basic EU principles such as proportionality and subsidiarity under Article 5 TEU (Joint Practical Guide 10.15) and the Charter of Fundamental Rights as referred to in Article 6 TEU. Recitals have also come to serve other functions. They have become bargaining chips in the negotiating process and a means of communication between the legislative authority and the user of the legislation. Recitals are included to mention all the other EU acts referred to in the act, and to mention certain consultations and financial arrangements.108 To counterbalance the trend for EU acts to become more complex and lengthy, various steps have been taken to make them more reader-friendly, in particular by means of instructions in the Joint Practical Guide. A standard order for the articles has been formalised (Guideline 15). Drafters are recommended to keep sentences and articles short (Guideline 4 and Joint Practical Guide 4.4–4.5.2 and 5.2.2), and to number items in a list (Guideline 15)



106 Article

3(3) TEU. 293(1) TFEU. 108 See, respectively, Joint Practical Guide 16.10.3, 10.17, and 10.18 and 10.19. 107 Article

Legislation in the EU  531 and all recitals (Guideline 11 and Joint Practical Guide 11.1–11.4). Each article is now generally given a heading and most sub-divisions of articles are numbered. Drafters are told to use simple terms and everyday language (Guideline 1 and Joint Practical Guide 1.4) and to avoid jargon, vogue words, non-standard Latin expressions and expressions linked to one language or one national legal system (Joint Practical Guide 5.2.4–5.3.2).

32.8.  The Role of the CJEU and the Interpretation of EU Law 32.8.1. General Most cases brought before the CJEU are heard at first instance by the General Court, with a possible subsequent appeal to the Court of Justice. However, some types of case considered to be particularly important are heard directly by the Court of Justice itself. The main heads of jurisdiction relevant to EU legal acts are actions for annulment, references for preliminary rulings and infringement proceedings brought by the Commission against Member States.109

32.8.2.  Actions for Annulment Under Articles 263 and 264 TFEU, an action may be brought before the CJEU for a review of the legality of an EU legal act, and if the action is well founded, the act will be declared void. The Court of Justice has exclusive jurisdiction over actions brought by a Member State against the European Parliament and the Council or against either one of them (apart from Council acts in respect of state aid, dumping and implementing powers) and over actions brought by one EU institution against another. The General Court has jurisdiction, at first instance, in all other actions of this type and particularly in actions brought by individuals.

32.8.3.  References for Preliminary Rulings Under Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings in response to questions referred to it by national courts on the interpretation of the Treaties or on the validity or interpretation of EU legal acts. It thus cooperates with the courts of the Member States, which are the ordinary courts in matters of EU law, to ensure the effective and uniform application of EU law and to prevent divergent interpretations. Its preliminary rulings are binding on the national court which referred the question to it and on other national courts before which the same problem is raised.



109 For

other heads of jurisdiction, see arts 259 ff TFEU.

532  William Robinson

32.8.4.  Infringement Proceedings Under Article 258 TFEU, if the Commission considers that a Member State is failing to fulfil an obligation under the Treaties, it may initiate proceedings against it. In the pre-litigation stage, the Commission sends a letter of formal notice and then, if the matter is not resolved, a reasoned opinion. Most disputes are resolved at this stage; if not, the Commission may bring proceedings before the CJEU for judgment against the Member State. In the very rare cases where the Member State fails to comply with that judgment, the Commission may again bring the case before the CJEU, which then has jurisdiction to impose financial penalties on the Member State under Article 260 TFEU.

32.8.5.  Interpretation of EU Law The EU legislative authority has laid down no rules on the interpretation of EU legislation (apart from one short regulation on time limits).110 All the principles of interpretation have been developed by the CJEU on the basis of principles derived from the law of the Member States and international law, in particular the Vienna Convention on the Law of Treaties of 1986. The approach of the CJEU to interpretation of EU law differs from that of the courts in Member States to interpreting their national law. Particularly striking is the difference from the literalist approach of courts in common law countries. The CJEU itself referred in the CILFIT case to ‘the characteristic features of Community law and the particular difficulties to which its interpretation gives rise’ and went on to state that: Community legislation is drafted in several languages and … the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. … even where the different language versions are entirely in accord with one another … Community law uses terminology which is peculiar to it … legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States. Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.111

The CJEU accordingly takes a broad approach to interpreting a text, relying on core meanings of terms. It may compare the different language versions and attempt to find a ‘common interpretation which best reflects the sense in all the languages’.112 It has established the principle that all the language versions must be treated equally113 and ruled that ‘the Community legal order does not, in principle, aim to define concepts on the basis of one or more national legal systems unless there is express provision to that effect’.114



110 Regulation

(EEC, Euratom) No 1182/71 of the Council [1971] OJ L124/1. (n 75) paras 17–20. 112 Case 80/76 North Kerry Milk Products [1977] ECR 425. 113 Case C-152/01 Kyocera Electronics Europe [2003] ECR I-13821, para 32. 114 Case C-103/01 Commission v Germany [2003] ECR I-5369, para 33. 111 CILFIT

Legislation in the EU  533 The CJEU looks at a provision in its context and in the light of the aims of the act.115 It has regard to the reasons for the provision as stated in the preamble.116 It may look at the travaux préparatoires, such as the Commission proposal and the explanatory memorandum. It also takes account of general principles of EU law, such as legal certainty117 and fundamental rights.118

32.9.  The Quality of EU Legislation 32.9.1.  Calls for Improvement and Response of the EU Institutions In 1992, the French Conseil d’État drew up a report which looked at the growing influence of Community legislation on French law and expressed concern at the volume of Community rules and how difficult they were to understand.119 In the same year, the European Council adopted the Birmingham Declaration, with the pithy demand: ‘We want Community legislation to be clearer and simpler.’ In response, the Council adopted a resolution setting out what are known as the ten commandments of legislative drafting,120 but the results of this were limited. In 1995, the Koopmans committee of senior Dutch civil servants recommended the introduction of guidelines on legislative quality and the establishment of an independent vetting committee.121 The Netherlands and the European institutions then organised a conference on the quality of legislation, the proceedings of which were published.122 In 1997, the Intergovernmental Conference adopted Declaration 39 on the quality of the drafting of Community legislation, which was annexed to the Amsterdam Treaty.123 That led the EU institutions to adopt the 1998 Agreement on drafting guidelines referred to in section 32.6.2 above.

32.9.2.  Governance Initiative In 2000, the European Council in Lisbon ‘set itself a new strategic goal for the next decade: to become the most competitive and dynamic knowledge-based economy in the world’.124 115 See, eg, Case C-136/91 Findling Walzlager [1993] ECR I-1793, para 11. 116 See, eg, Case C-355/95 P TWD [1997] ECR I-2549, para 21. 117 See, eg, Joined Cases 42 and 49/59 SNUPAT [1961] ECR 53, 87; Case T-171/00 Spruyt [2001] ECR FP I-A-187, II-855, paras 70, 71 and 72. 118 Joined Cases C-465/00, C-138/01 and C-139/01 Rechnungshof v Österreichischer Rundfunk and Others [2003] ECR I-4989, para 68. 119 French Conseil d’État, ‘Rapport public 1992, Le droit communautaire’, Etudes et documents No 44. Other reports on the quality of EU legislation are referred to in W Robinson, ‘Managing the EU Acquis’ (2016) 18 ­European Journal of Law Reform 296, at section B.II. 120 [1993] OJ C166/1. 121 T Koopmans, ‘De kwaliteit van EG-regelgeving – Aandachtspunkten en voorstellen’, available at: https:// edepot.wur.nl/160214. 122 AE Kellermann, Improving the Quality of Legislation in Europe (Leiden, Martinus Nijhoff Publishers, 1998). 123 [1997] OJ C340/139; see section 32.6.2 above. 124 Point 5 of the Council Conclusions, available at: www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/ en/ec/00100-r1.en0.htm.

534  William Robinson In 2001, the Mandelkern Group established by the EU Member States to examine regulatory quality in Europe called for an action plan of over 30 measures.125 The Commission launched its governance initiative in 2001, stating that the EU ‘must pay constant attention to improving the quality, effectiveness and simplicity of regulatory acts’.126 It later called for a new strategy and a new culture of simplification of regulation,127 and the following year adopted a package of measures to promote better law-making.128

32.9.3.  The Agreement on Better Law-Making 2003 Responding to an invitation from the European Council in Seville in 2002, the EU institutions adopted another Agreement in 2003129 affirming their commitment to improving all aspects of law-making: better preparation of legislation, greater transparency, drafting quality, improved accessibility of EU legislation, keeping the regulatory burden as light as possible and improved follow-up on adopted legislation. This Agreement became a cornerstone of the Commission’s Better Regulation programme.130 The Member States continued to call for further steps to be taken to improve the quality of EU regulatory policy.131 In 2005, the Commission adopted a strategy for the simplification of the regulatory environment132 and later ran a rolling programme for simplifying and improving existing EU law by identifying areas where action should be taken with input from stakeholders.133

32.9.4.  Smart Regulation In 2010, the Commission launched the Smart Regulation project, which embraced the whole cycle of regulation, including implementation and post-adoption scrutiny.134 Smart Regulation formed part of the Europe 2020 strategy, which sought a way out of the economic crisis by setting various goals to be achieved by initiatives to deliver smart, sustainable and inclusive growth, including ‘considering the wider use of regulations rather than directives, launching ex post evaluation of existing legislation, pursuing market monitoring, reducing administrative burdens, removing tax obstacles, improving the business environment, particularly for SMEs, and supporting entrepreneurship’.135 125 http://ec.europa.eu/smart-regulation/better_regulation/documents/mandelkern_report.pdf. 126 COM (2001) 428 (n 34) point 3.2. 127 See COM (2001) 130, 3; COM (2001) 726, 2. 128 COM (2002) 275, 276, 277 and 278. 129 [2003] OJ C321/1. It was repealed by the 2016 Agreement, which is referred to in section 32.9.7 below. 130 See the Commission’s Better Regulation website: https://ec.europa.eu/info/law/law-making-process/planningand-proposing-law/better-regulation-why-and-how_en#documents. 131 See the 2004 Joint Initiative on Regulatory Reform, adopted by the four Member States holding the Council Presidencies of 2004 and 2005. See also the Davidson Review on Implementation of EU Legislation in the United Kingdom (London, HMSO, 2006) point 5.2.6, available at: http://webarchive.nationalarchives.gov.uk/+/http:/www. bis.gov.uk/policies/better-regulation/reviewing-regulation/simplifying-eu-legislation-davidson-review. 132 COM (2005) 535. 133 COM (2006) 690, COM (2008) 33, COM (2009) 17. More recently, the emphasis has been on reducing burdens on business; see COM (2011) 803. 134 COM (2010) 543, point 2.4. 135 COM (2010) 2020, point 2.1.

Legislation in the EU  535 Specific measures taken include a simplification agenda covering the current Multiannual Financial Framework, measures to improve the business environment for small businesses and a red-tape reduction programme for the period 2007–12.136

32.9.5.  Regulatory Fitness In 2012 the Commission launched its Regulatory Fitness and Performance programme, REFIT, designed to make EU law ‘fit for purpose’ and to simplify and reduce regulatory costs.137 It includes actions to simplify legislation, reduce regulatory burdens, withdraw pending proposals, repeal laws that are no longer necessary, and evaluate the efficiency and effectiveness of EU legislation. Key tools are evaluations and fitness checks which make a holistic and critical appraisal of the regulatory framework in a given area.138

32.9.6.  The Better Regulation Package 2015 In May 2015, the new Commission (the Juncker Commission) adopted a package of measures ‘to deliver better rules for better results’, including a new agenda, Better Regulation Guidelines and a Better Regulation Toolbox, the establishment of a REFIT platform to make suggestions for reducing regulatory burdens, an independent Regulatory Scrutiny Board to advise the Commission and a proposal for an Inter-institutional Agreement on Better Regulation.139

32.9.7.  The Agreement on Better Law-Making 2016 On the basis of the above proposal, in March 2016 the three institutions adopted a new Inter-institutional Agreement on Better Law-Making, replacing the 2003 Agreement.140 It began with a common commitment that: Union legislation should be comprehensible and clear, allow citizens, administrations and businesses to easily understand their rights and obligations, include appropriate reporting, monitoring and evaluation requirements, avoid overregulation and administrative burdens, and be practical to implement.

136 Commission, ‘Simplification Agenda for the MFF 2014–2020’ COM (2012) 42; Commission, ‘Minimising Regulatory Burden for SMEs’ COM (2011) 803. 137 See Commission, ‘EU Regulatory Fitness’ COM (2012) 746. It drew, amongst other sources, on OECD, Recommendation on Regulatory Policy and Governance (Paris, OECD, 2012), available at: www.oecd.org/gov/regu latorypolicy/49990817.pdf. 138 See the Commission’s website on evaluating laws, policies and funding programmes: https://ec.europa.eu/ info/law/law-making-process/evaluating-and-improving-existing-laws/evaluating-laws_en. 139 COM (2015) 215, COM (2015) 2016 and other documents on the Commission’s Better Regulation website: https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-andhow_en#documents. 140 OJ L123, 12 May 2016, 1.

536  William Robinson It then went on to give the European Parliament and the Council more influence over the EU’s legislative programming, to stress the importance of an evidence-based approach to legislation by means of reinforced impact assessments and ex post evaluation of legislation, to establish some ground rules for delegated and implementing acts, and to outline measures to improve transparency and to keep regulatory burdens in check.

32.9.8.  Current Work REFIT is the overarching programme for improving the regulatory framework of the EU and has been strengthened over the years. The REFIT platform comprising representatives of all governments and of stakeholders advises on steps to be taken.141 In 2017 the Commission decided that issues of simplification and burden reduction should always be taken into account when legislation is evaluated and revised. Members of the public are invited to contribute through the Lighten the Load website.142 New and updated Better Regulation Guidelines and a Better Regulation Toolbox have been adopted to guide staff in their work.143 In addition, the Commission publishes an Annual Burden Survey detailing efforts to simplify EU legislation.144

32.10.  Condensing and Updating the Statute Book 32.10.1. Amendment It is estimated that over one-third of Commission proposals each year concern amendments to existing legislative acts. Since it is clearly vital to keep EU legislation as accessible as possible, the institutions have agreed that amendments should ‘take the form of text to be inserted in the act to be amended’.145 This makes it possible to produce almost mechanically consolidated texts of the law in force at any given moment and also to codify and recast legislative acts that have been amended (see sections 32.10.3–6 below).

32.10.2. Corrigenda A particular problem with EU acts is the number of times they have to be corrected after adoption by means of correcting acts or of corrigenda published in the Official Journal for

141 https://ec.europa.eu/info/law/law-making-process/evaluating-and-improving-existing-laws/refit-making-eulaw-simpler-and-less-costly/refit-platform/role-structure-and-working-methods-refit-platform_en. 142 https://ec.europa.eu/info/law/better-regulation/lighten-load/suggestions/add. 143 Commission Staff Working Document SWD (2017) 350. 144 In accordance with Point 48 of the 2016 Inter-institutional Agreement: https://ec.europa.eu/info/law/lawmaking-process/evaluating-and-improving-existing-laws/refit-making-eu-law-simpler-and-less-costly/2018annual-burden-survey_en. 145 Guideline 18. Recourse to substantive amendment is permissible in limited circumstances (Joint Practical Guide 18.14).

Legislation in the EU  537 one or more language versions. A higher risk of errors is perhaps inevitable in a system with 24 official languages, but it is certainly liable to undermine the trust of citizens and traders in EU law.146

32.10.3. Consolidation Consolidation is a mechanical process whereby the provisions of a legal act (the articles and any annexes, but not the recitals) and all amendments and corrections to them are brought together in a single new text. That text is published on EUR-Lex for information only and the original act remains in force. Consolidation in all the official languages is carried out by the Publications Office under the supervision of the inter-institutional Working Group on Consolidation.147

32.10.4. Codification Codification is the adoption of a new act which brings together in a single text all the provisions of an existing act and all amendments and corrections already made to those provisions, without making any new amendments. The new act includes a complete and coherent statement of reasons. When the new act is adopted, the original act and all the amendments to it are repealed. In 1994, the EU institutions agreed on an accelerated working method for codification.148 In 2001, the Commission launched a project to codify the entire acquis,149 but the results were disappointing because of the technical problems involved.150

32.10.5. Recasting Recasting is the process whereby a new act is adopted which brings together in a single text all the provisions of an existing act and all amendments to those provisions. It differs from codification in that new amendments are also made. When the new act is adopted, the original act and all the amendments to it are repealed. In 2001, the institutions adopted an agreement on recasting.151 In recasting, the part of the text that corresponds to the existing provisions as already amended is treated as a codification and the legislative authority undertakes not to re-open discussion on those parts. The parts that are new are subject to the normal legislative procedure.

146 See M Bobek, ‘Corrigenda in the Official Journal of the European Union: Community Law as Quicksand’ (2009) 34 European Law Review 950. 147 See COM (2001) 645, point 2.2. 148 [1996] OJ C102/2, point 5. 149 COM (2001) 645, point 1.3. 150 COM (2009) 17 final, point 5. 151 [2002] OJ C77/1.

538  William Robinson The institutions agreed in 2016 to use the recasting technique more frequently to modify existing acts and, when recasting is not appropriate, to propose a codification as soon as possible after an act has been amended.152

32.10.6. Repeal Concern at the increasing volume of EU legislation led to a commitment from the EU institutions to simplify and repeal legislation wherever possible.153 The rule has been laid down that whenever a new act is adopted, any redundant provisions or acts should be repealed (Guideline 21). In addition, independently of the adoption of a new act, the acquis is being screened to identify acts that are no longer applied and to repeal them. Despite all the efforts made, the acquis continues to grow. In 2001, it was estimated at some 80,000 pages.154 Unofficial estimates of the current size of the acquis in connection with the translation of all binding EU law into Croatian put it at some 130,000 pages. The Commission is reviewing all areas of EU law with a view to repealing unnecessary and irrelevant laws as part of its REFIT programme (see section 32.9.5 above).

32.11.  Final Words It is over 50 years since the CJEU first described the European Community as a new legal order. Since then, the EU has continued to further develop the features of a legal order. It is in a symbiotic relationship with the legal orders of the Member States. In many respects, it depends on them for the implementation and enforcement of EU legislation. It also draws inspiration from them for its development. Yet, in turn, it exercises a significant influence on all those legal orders. These elements are doubtless contributing to the development of a common European legal culture that goes beyond the actual texts themselves.

Further Reading CJW Baaij (ed), The Role of Legal Translation in Legal Harmonisation (Alphen aan den Rijn, Kluwer Law International, 2012) M Blanquet and G Isaac, Droit général de l’Union européenne, 10th edn (Sirey, Sirey University, 2012) French Conseil d’État, ‘Rapport public 1992, Le droit communautaire’, Etudes et documents No 44 JP Jacqué, Droit institutionnel de l’Union européenne, 7th edn (Paris, Dalloz, 2012)

152 Point 46 of the 2016 Inter-institutional Agreement. 153 Agreement on Better Law-Making [2003] OJ C321/1, point 35. The 2016 Agreement refers in s VIII more generally to simplification and the REFIT programme. 154 See COM (2001) 645, point 1.3.

Legislation in the EU  539 U Karpen and H Xanthaki (eds), Legislation in Europe: A Comprehensive Guide for Scholars and Practitioners (Oxford, Hart Publishing, 2017) AE Kellerman, GC Azzi, SH Jacobs and R Deighton-Smith (eds), Improving the Quality of Legislation in Europe (The Hague, Kluwer Law International, 1998) T Koopmans, De kwaliteit van EG-regelgeving – Aandachtspunkten en voorstellen, 1995 (a report commissioned by the Dutch government, available at: https://edepot.wur. nl/160214) D Mandelkern, Mandelkern Group on Better Regulation, ‘Better Regulation: Why and How’, final report, 13 November 2001, http://ec.europa.eu/smart-regulation/better_regulation/ documents/mandelkern_report.pdf JC Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) P Popelier et al, Lawmaking in Multi-level Settings: Legislative Challenges in Federal Systems and the European Union (Oxford and Baden-Baden, Nomos/Hart Publishing, 2019) C Stefanou and H Xanthaki, Drafting Legislation: A Modern Approach (Aldershot, Ashgate, 2008) B Steunenberg and W Voermans, The Transposition of EC Directives (Leiden, Leiden University, 2006) H Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation (Oxford, Hart Publishing, 2014) ——. ‘Improving the Quality of EU Legislation: Limits and Opportunities?’ in S Garben and I Govaere (eds), The Better Regulation Agenda: A Critical Assessment (Oxford, Hart Publishing, 2018) 28–47

540

POSTSCRIPT Trends and Perspectives of Legislation and Legisprudence The comparative analysis of the chapters in this volume confirms that the problems associated with legislation are very similar: multitude of legislation, bad legislation and inaccessible legislation. These problems continue despite the lengthy promotion and application of RIA in most countries. This comes as little surprise to experts in legislation, who have always felt that legislative scrutiny should go hand in hand with attention to legislation as a product. And this is the value of this work, much more so as a follow-up to the first volume in legislation in the EU.1 Focus is now beginning to turn from pre- and post-legislative scrutiny to the actual legislation. And here there is a lot of work to be done. Legislation requires attention on itself rather than just the legislative environment, the legislative process and legislative scrutiny. There is a need to focus on common legislative failures and to search for common legislative solutions. The EU is and can be the catalyst of legislative reform. Its Better Regulation agenda can expand to encompass a more focused better legislation agenda, looking to identify who legislation is addressing and how its messages can be clearly heard by the people it is affecting. Identifying who legislation is addressed at and who uses it is the first step towards a new legislative strategy. In an era of direct information via the internet, users are searching legislative texts in order to find the information that they need directly and without intervention from professionals. This can only be viewed as a challenge and an invitation for a new relationship between law-makers and citizens. Viewing legislation as a direct channel of communication between the state and its citizens can be used to explain the rationale behind regulatory action, the benevolent goal of the legislation, the precise action that citizens are asked to undertake and the results that are sought. Revolutionising legislation and its drafting in this manner can promote compliance with the law not by means of what we now know to be ineffective punishment, but by means of instigation of participation in the joint regulatory effort for the achievement of beneficial long-term change. This can enhance citizen participation in regulatory efforts, thus promoting the efficacy of regulation and the subsequent attainment of the desired regulatory results. However, it

1 U Karpen and H Xanthaki (eds), Legislation in Europe: A Comprehensive Guide For Scholars and Practitioners (Oxford, Hart Publishing, 2017).

542  Postscript can go much, much further. By taking citizens with us in terms of regulatory effort, drafters can instil loyalty and trust in the citizen vis-a-vis the state. Populist voices can be hushed and a new relationship with legislation, based on voluntary commitment, can come to the fore. This may well start a domino of changes: an end to the current aversion to authority and a new era of trust and collaboration between citizens and the state. This global change in legislation and legislating has started within Europe. It is hoped that this book, and its first volume, can facilitate the cross-fertilisation of innovation and best practice in Europe and beyond.

Further Reading Bundesamt fuer Justiz, Gesetzgebungsleitfaden 4th edn (Bern, 2019) Benedetto de, Rangone N and Lupo N, The Crisis of Confidence in Legislation (Oxford, Hart Publishing, forthcoming 2021) Flueckinger A, (Re)faire la loi (Bern, Staempfli, 2019) Joint Practical Guidelines of the European Parliament, the Council and the Commission for Persons involved in the drafting of European Union Legislation (Luxembourg, European Union, 2016) OECD, Recommendations of the Council on Regulatory Policy and Governance (Paris, OECD, 2012) OECD, Better Regulation in Europe (Paris, OECD, 2018) Karpen U, Gesetzgebung-neu evaluiert/Legistics-freshly evaluated 2nd edn (Nomos, Baden-Baden, 2014) Karpen U and Xanthaki H (eds), Legislation in Europe: A Handbook for Scholars and Practitioners, Oxford, Hart Publishing, 2017) Kluth W and Krings G (eds), Gesetzgebung (Heidelberg, CF Mueller, 2014) Pagano R, Introduzione alla legistica. L’arte di preparare le leggi (Milano, Giuffre, 1999) Santaolla Lopez F, Derecho Parlamentario Espanol (Madrid, Dykinson, 2013) Uhlmann F and Hoefler S (eds), Professional Legislative Drafters: Status, Role, Education (Zurich, Dike, 2016) Vaiciukaite J and Xanthaki H, Better Legislation and the EU (London, Edward Elgar, 2021) Xanthaki H, Drafting Legislation: Art and Technology of Rules for Regulation (Oxford, Hart Publishing, 2014) Xanthaki H, Thornton’s Legislative Drafting 5th edn, (London, Bloomsbury, 2013).

INDEX Please see individual country entries/EU law for material relating to that country/EU accessibility  24 ambiguity, avoidance of  32–4 amendments to legislation  11, 17–18, 20, 28, 30 annulment of laws  7 Austria  35–50 administrative law  35, 36, 37, 43 amendments to legislation  36–7, 41, 43, 44, 46–7 authentication by Federal President  42 basic principles  36–7 budget reform  48 clarity  36 clearing up the constitution  11, 37, 47 coercion  35 committee stage  41 competences, distribution of  19, 38, 43 conflicts between chambers  41–2 consolidation and codification  35, 42 Constitution amendments  36–7 constitutional law, division with  3 features  35 flexibility  35 secondary legislation  38 Constitutional Court  29, 35, 36 deletions of legal text  36 executive acts, limitations on  38 legality, principle of  36 repeal of legislation  36 strong position of  35, 36 constitutional law  3, 11 constitutional provisions in statutory law  11, 38 consultation procedure  39 Court of Audit  49 criminal law  43 culture  43 deletions of legal text  36 democratic principle  36 direct democracy  40 drafting  30, 39–40, 49–50 accompanying material  39 ambiguity, avoidance of  32 basic units  44 constitutionality  19 consultation  39

EU law  44 experts  39 imprecise references to other legal texts  33 Legistik  50 ministerial drafts  39 referencing  45–6 repetition, avoidance of  33 same concepts, avoidance of use of different terms for  33 structure of drafts  44 effectiveness  30 electronic publication  19, 42 enactment  42 EU law  44, 45 directives, transposition of  47 drafting  44 EU Addendum  44, 45, 47 referencing  45 evaluation and monitoring of legislation  30, 43, 48–9 experts  39 Federal Constitutional Law (B-VG)  36, 41–3, 49 Federal Council (Bundesrat)  18, 36–7, 39–42 Federal Law Gazette, publication in  42 federalism  9, 35, 37 first readings  41 flexibility  35 forms and styles of legislation  35, 44, 45 fundamental law  37 gender-neutral law  45 German law, influence of  45, 47 government  16, 38–40, 43 hierarchy of norms  35 homogeneity of law, principle of  15 initiation of legislation  16, 17, 20, 39–41 instruments  43–4 international law  37 language  45 law gazettes, publication in  42, 45 legal information system (RIS)  42–3, 47 legality, principle of  35, 36 legisprudence  43–7 formal  43–7 instruments  43–4

544  Index language and style  45 legistic housekeeping  47 referencing  35, 45–6, 47 Legistic Guidelines  44, 47 legistic housekeeping  47 Legistik  50 long titles  44 ministries  38–9, 43 monitoring implementation  49 multi-layered systems, legislation in  8 National Council (Nationalrat)  36–42, 44 objections  41–2 ordinary constitutional law  3, 36 Parliament centrality of parliamentary legislation  36–42, 44 Federal Council (Bundesrat)  18, 36–7, 39–42 National Council (Nationalrat)  36–42, 44 policy, determination of  43 popular initiatives  20, 40 positivism in public law  35 preambular clauses  44 preparation  39, 43 President, authentication by Federal  42 primary legislation  36–7 procedure  38–42 process  35 professional corporations, consultation of  39 public institutions and associations of stakeholders  39 public participation  39 publication  19, 42 outcome-oriented impact assessments (OOIA)  48 quality  41, 48–9 Rechtsstaat  3, 35, 36 referencing  35, 45–6, 47 referenda  37 refusal of authentication  42 regulation  35–8 regulatory impact assessments (RIAs)  41, 43, 48–50 outcome-oriented impact assessments (OOIA)  48–50 quality assurance  48–9 simplification  48 repeal of legislation  7, 36 republican principle  36 second readings  17, 41 secondary legislation  37–8, 46 separation of powers  37, 46 simplification  48 states (Länder)  9, 36, 37–8, 42, 50 statutory law  11, 38, 46 structure of drafts  44

Stufenbau order  36–7 style of legislation  35, 44, 45 taxation  43 technicality of norms  12, 35 territorial sub-units  6 third readings  41 training  49–50 unicameral legislatures in Länder  38 voting  41 Belgium  51–67 Acts of Parliament  51, 52, 55–6 administrative acts, judicial review of  55–6 administrative culture  64 advisory councils  28, 64–5 advisory opinions  59, 61–2, 65 amendments  52, 56–7 assessment of laws  63–7 autonomous bodies  51, 53–4 better legislation policy  25, 60–1, 67 bicameral system  17, 51, 57 children’s rights  61–2 civil servants, drafting by  62 codes of conduct  54 collective labour agreements, binding force of  54 committees  53, 66–7 Communities and Regions  52–3 Brussels Region  9, 52 Flemish community  9, 60–2, 63, 65–7 French-speaking community  9, 67 Joint Community Council in Brussels  52 language divisions  3 ordonnances  52 competences  51–2, 59 concept of legislation  51–6 Constitution advisory opinions  65 amendments/revision  52, 56 autonomous bodies, regulation by  53–4 fundamental human rights  61–2 goals and values  61 legal framework  56 naturalisation  56 transfer of powers to international and supranational organisations  55 constitutional acts  52 Constitutional Court  12, 51–2, 55–9 Acts of Parliament, challenging  55–6 consultation  58–9 cooperation agreements  59 interpretation  52 judicial review  29, 51–2, 55–6 constitutional state, law-making in the  3 consultation  58–60, 62–5 cooperation agreements  59

Index  545 corporatist social partners  64 Council of State  54–5, 58–60, 62, 64–5 delegation  51 distribution of powers  51 double decrees and/or ordonnances  52–3 drafting  30, 59, 60–3, 72 ambiguity, avoidance of  33 civil servants  62 consultation  64–5 Flemish Community  62 guidelines  59, 60–3 Luxembourg, influence on  321 models  62 political context  63 recommendations  62–3 techniques  62–3 training  67 why, what and how to draft  25 electronic databases  62 elite-based decision-making  64 emergency/urgent legislation  59, 66 EU law directives, transposition of  59 goals and values  61 goldplating, avoiding  61 impact assessments  61 implementation  52, 61 supreamcy  55 European Convention on Human Rights, supremacy of  55 evaluation of laws  63–7 ex ante  63, 64–6 ex post  63, 66–7 legal assessment  64–5 Parliamentary Council of Evaluation of Legislation  28 expert advice  64 explanatory memoranda  65 federal laws  52, 60, 62 Federal Parliamentary Procedure  57–9 federalism  3, 9, 51–2 federated entities, decrees adopted by  52 Flemish community  9, 60–2, 63, 65–7 French-speaking community  9, 67 fundamental human rights  55, 61–2 gender equality  61–2 generations, solidarity between  61 good law  26 government  16 hierarchy of norms  12, 51, 53 House of Representatives  52 implementation of laws  63–7 initiation of legislation  57, 60 international law  54–5 international organisations, transfer of powers to  55

judicial review  51–3, 55–6 judiciary, consultation requirement on federal law concerning the  60 the king  3, 52, 54 language divisions  3 law-making activity  56–61 organisation  56–61 procedure  51, 56–61 legality, principle of  31 legislative framework  56–61 legisprudence, teaching  67 legitimacy  53 Luxembourg, influence on  321 material and non-material laws distinguished  55 monism  54–5 multi-layered systems, legislation in  8 naturalisation  56 new provisions in existing laws  62 objectives and values  61–2 Office for Legislative Moderation  60–1 omnibus laws  59 ordonnances adopted by parliaments of specific federated entities  52–3 organisation  56–61 Parliament bicameral system  17, 51, 57 federal laws  52, 62 House of Representatives  52 law-making  55 Parliamentary Council of Evaluation of Legislation  28 procedure  57–9 Senate  18, 19, 52, 58 sub-national Parliamentary procedure  60 partitocracy, Belgium as  65 policy  25, 51, 60–1, 64, 67 political context  63–4 procedure  51, 56–61 professional corporations, regulation by  54 proportionality  58 quality of legislation  56, 59, 64–5 quantity of legislation  53 rational law-making  64 regulation  53–4, 67 regulatory impact assessments (RIAs)  26, 59–61, 62–6 rule of law  3 Rules of Procedure  51, 66 second readings  57 secondary legislation  51, 53, 55, 60 Senate  18, 52, 58 separation of powers  55 socio-economic impact assessment  65–6 stakeholders  63 sub-national level  58, 62

546  Index sub-national Parliamentary procedure  60 supranationalism  51, 55 teaching legisprudence and training  67 transparency  53, 63 treaties and conventions as directly binding  54–5 typology  51–6 scope, according to  55–6 source, according to  51–5 unicameral systems  19, 60 vetoes  58 young people’s rights  22 Bentham, Jeremy  267 Besch, Marc  324 better legislation  1–2 Agreements on Better Law-Making 2003 (EU)  25 Better Regulation  1, 4, 541 Better Regulation Package (EU)  25 constitution as institutional frame and guiding principle  2 councils of state as advisors to government  28 effectiveness  2 EU law  1, 25 good governance  25 good, just and fair norms, target of law as being  2 governance and regulation, law as one instrument  2 legisprudence  1–2 regulatory impact assessments (RIAs)  28 structured, clear and understandable, form of law must be well  2 bicameral countries  6, 17–18 Boris III, Tsar of Bulgaria  71 budgets  12, 21 Bulgaria  69–84 acts of Parliament all other acts, category of  72 budget, adoption of the state  72 Constitution, supremacy of  70 constitutional laws  71–2 primacy  71 procedure  74–9 secondary legislation  71 treaties, ratification of  72 types  71–2 amendment and improvements  74, 81 budgets  72 Bulgarian language, meaning of  81 citizens’ legislative initiatives  20, 78 civil society’s right to present an opinion on draft legislation  80 clarity  81 committees  75

competences, delegation of  72 Constitution  69, 70–1 1991 Constitution  69, 70–1, 78 conventions and customs  73 length of constitution  11 primacy of 1991 Constitution  70–1, 79 referenda  79 Soviet-type constitutions of 1947 and 1971  69, 71, 79, 82 Tarnovo Constitution of 1879  69 treaties, primacy of  70 veto  77–8 constitutional laws  71–2 consultation  80 context  69 Constitutional Court  7, 70 conventions and customs  73 Court of Justice (CJEU)  69, 70, 73 delegation  72 deparliamentarisation  69 direct and participatory democracy  74, 78 drafting  30, 80–3 acts, requirement for draft  80–3 civil society, opinions of  80 formal legisprudence  80–3 philosophy, general concept and principles  75–6 preparatory work  74 registration of draft acts  74–5 reintroduction of draft acts  76–7 techniques of  80–3 training  84 withdrawal of draft acts  77 ECtHR  69, 70, 73, 75 electronic publication  80 electronic voting  75 EU law Court of Justice (CJEU)  69, 70, 73 Bulgarian language  81 harmonisation  76–7, 79 impact of  83–4 normative acts  83 primacy  14, 70 rule of recognition  70 evaluation and monitoring  83–4 first readings  75–6 government (Council of Ministers) acts adopted by  70, 72 first 100 days period  73 initiation of legislation  74 legislative programme  74–5 presidential veto  77 RIAs  84 Grand National Assembly  72 hierarchy of provisions  70–3

Index  547 initiation of legislation citizens’ legislative initiatives  20, 78 government  74 MPs  74–5 Parliament  74–7 peoples’ legislative initiatives  78 intent, development of legal  79–80 interested parties, involvement of  80 international law  71, 72–3, 78 Internet, publication by the  80 interpretation  73 judicial practice as indirect source of law  73 language  81 Law on Normative Acts  69, 80–4 legal realism  73 Legislative Council, advisory opinions of  80 legislative programme  74–5 legisprudence  79–83 formal legisprudence  80–3 substantial legisprudence  79–80 management of legislation  74–80 monarchy  71 monism  70 motives  75 municipal councils, normative acts of  70 normative acts  27, 69–70, 80–4 organic laws  72 organisation of legislation  74–80 Parliament (National Assembly)  71–2, 74–7, 84 approval  75 Chair  75 centrality of Parliament  69, 71–2 communism, under  71 deparliamentarisation  69 draft acts, introduction of  74–7 Grand National Assembly  72 Legislative Council, advisory opinions of  80 parliamentary phase of procedure  74, 75–6, 80 parliamentary republic, Bulgaria as  69 presidential veto  77 RIAs  84 withdrawal of draft acts  77 peoples’ legislative initiatives  78 philosophy, general concept and principles  75–6 policy, development of  79–80 political parties  77 positivism  73 post-parliamentary phase  74 precedent  72–3 pre-parliamentary phase  74, 80 preparatory work  74 President  69, 71, 77–8 principles  69 procedure  74–80 publication of legislation  77, 80–3

quality  79, 83–4 recommendations for inclusion in legislative programme  74–5 referenda  78–9 Constitution  79 consultative  78 facultative  78–9 imperative/compulsory  78–9 voter turnout  78–9 registration of draft acts  74–5 regulatory impact assessments (RIAs)  27, 83–4 compulsory RIAs  83–4 ex ante  75, 83–4 ex post  83–4 partial  83–4 retroactivity  77 rule of recognition  70 scientifically grounded legislation  69 secondary legislation  71–2 semi-presidentialist system  69 separation of powers  72 social relations, regulation of  81–2 socio-legal context  72 sources of law  70–3 State Council  71, 79 State Gazette, publication in  77 substantial legisprudence  79–80 Supreme Administrative Court  73 Supreme Court of Cassation  73 suspensive veto of President  77–8 training  84 transition to democracy  71 treaties and conventions  70–1, 77–8, 81 monism  70 primacy  70 ratification  72 suspensive veto  77–8 veto on legislation  77–8 voting  75, 78–9 by-laws/regulations by autonomous bodies  13 Byrne, R  252, 258–9 Carbonnier, Jean  189–90 centralisation  16–17 certification of bills  19 checks and balances  17 citizens’ assemblies  5, 20 civil law jurisdictions  34 civil service, initiation of legislation by  16 clarity  2, 31–3 closure procedures  18 codification  11, 24 collective labour agreements  13 commissions  16 committees  17, 18, 29

548  Index common law jurisdictions  34 Commonwealth jurisdictions, methodology of legislation in  21 comparative legisprudence  2 competences, models for assigning  8–9 confederations  9 conflict-oriented cultures, debates in  18 consensus-oriented cultures, debates in  18 consolidation  24 constitutional courts  5, 7, 11, 20, 27–30 constitutional laws  10–11, 20–1 constitutional state, law-making in the  2–9 constitutionalism  21 constitutions amendments  20 constitution, definition of  11 core principles  21 culture  22 drafting new constitutions  22 education  22 evaluation and monitoring  22, 24 guardians of the constitution, constitutional courts as  7 institutional frame and guiding principle, as  2 inviolable core  11 length  11 material core  11 organic laws  11 organisation of legislation  21 procedure  15, 21 referenda  20 science  22 secondary legislation  13 structure of legislation  21 unwritten and uncodified constitutions  11 values, system of  22 written constitutions  11 consultation  6, 20 contractive instruments  26 Cornu, Gérard  192 corporate governance codes  13 Crabbe, V  307 Croatia  87–102 administration  90–1, 93, 102 adoption of a bill  97–8 agentification  90–1 amendments to the Constitution  92–3 annual plans  94 central state offices  90 centralised country, Croatia as a  88 citizen’s initiatives  92 civil service  91 committees  98–9 Constitution  88, 92–3 constitutional acts  92–3 Constitutional Court  99

constitutional framework  87–92 consultation  91–2, 96–7 context  87 counties  87–8, 91–2 Croatian Democratic Community (CDC)  90 decree, regulation by  93 diaspora  90 drafting  30, 94–9 draft development  95–6 Government Legislative Office  95 preparation  97–8 professional and political coordination  98 public consultation  96–7 specialists  95 technique  100 voting  98 working groups  95 emergency/urgent decrees  93, 99 entry into force  99–100 EU law  88, 96–7 conformity with  96–7, 99 Constitution, amendments to  92 urgent and simplified procedure  99 first readings  99 fundamental human rights  93, 100 government  87–91 adoption of a bill  97–8 annual plans  94 appointment by Parliament  88 dissolution  88–9 Government Legislative Office  95 legislative activities  94–6 parliamentary system  88 publication  100 term of office  90 training  102 Homeland War 1991–1995  88 improvements  101–2 initiation of legislation  94–5 institutional framework  87–92 Internet portal for public consultation  92 judiciary  89–91 legal education  102 levels of administration  90 local government  87–90, 91, 97, 100 ministries  90, 94–5 municipalities and towns  88 national minorities, protection of  89, 92 Official Gazette (Narodne novine), publication in  99–100 organic laws  92–3 Parliament  89–91 deliberations  98–9 diaspora  89 government, appointment of  88

Index  549 initiation of legislation  95 national minorities, protection of  89 other laws adopted by Parliament  92–3 procedure  98–9 proportional representation  89 unicameral, as  89 the people  91–2 perspectives  101–2 planning  94–5, 100 policy  90–1, 102 political parties  90 preparation  90, 94–102 President constitutionality reviews  99 emergency decrees  93 foreign policy, defence and security  89 opinions  99 promulgation  99 referendums, calling  91 role  89, 91, 93, 99 Prime Minister  90–1, 98 process of the law preparation  94–102 adoption of a bill  97–8 drafting  94–7 entering into force  99–100 parliamentary deliberation  98–9 planning and initiation  94–5 promulgation  99–100 publication  99–100 urgent and simplified procedure  99 promulgation  99–100 proportional representation  89 public consultation  91–2, 95–7 publication  99–100 quality of legislation  101 quantity of legislation  101 Rechtsstaat approach  91 referendums amendments to the Constitution  91 consultative referendums  91–2 local  91 mandatory referendums  91 President, called by  91 Prime Minister  91 quorum  9 reform process  101 regulation by decree  93 regulations  93 regulatory impact assessments (RIAs)  92, 95–6 criteria  100–1 ex post RIAs  101 legislative technique  100 list of issues  95 planning  94, 100 prior RIAs  95–6 training  102

retroactivity  100 reviews  99 second readings  99 secondary legislation  93 simplified procedure  99 Social Democratic Party (SDP)  90 soft law  93 specialists  95 state administrative organisations  90 strategic directions, decisions on  98 subsidiarity  88 techniques, pillars of legislative  100–1 third readings  99 training  102 types of law  92–3 unitary state, Croatia as a  87 urgent procedure  99 voting  98 working groups  95 Zagreb, special status of  88, 90 culture  22 Cyprus  103–18 amendments to Constitution  103–4, 110–11 Better Regulation  117 bicommunal character of state  105–6 checks and balances  115–17 colonial laws, application of  109 committees  114 competences  109 complexity  105 Constitution 1960  103, 106–7 amendments  103–4, 110–11 checks and balances  115–17 colonial laws, application of  109 complexity  105 EU law  103–4 hierarchy of norms  105–6 necessity, doctrine of  103, 106–7, 111, 116 rigidity  105 sources of law  105–6 treaties and conventions  112 consultation  111 context  103 Cylaw database  117 drafting  30, 112, 117 electronic publication  117 emergency/urgent legislation  106–7 EU law accession  103–4 CJEU, jurisprudence of  104, 113 competences  109 Constitution  103–4 derogation in relation to Northern Cyprus  104–5 directives, transposition of  113

550  Index harmonisation of laws  113 hierarchy of norms  103–5 primacy  103–4 regulations, implementation of  113 sources of law  103–5 transposition  113–14 treaties and conventions  111 evaluation  117 first readings  114 government (Council of Ministers)  109–10, 115 Government Gazette, publication in  114 Greek Cypriots  106–7 hierarchy of norms  103–10 Constitution  105–6 EU law  103–5 necessity, doctrine of  106–7 secondary legislation  109–10 treaties and conventions  107–9 history and political background  103 international law  103 necessity, doctrine of  103, 106–7, 111, 116 Northern Cyprus, occupation of  103–5 Official Gazette, publication in  106–7, 108, 112, 115, 117 Parliament (House of Representatives) amendments to the Constitution  110–11 Constitution  114 initiation of bills  114 secondary legislation  115 sources of law  109 the people  105 president  105–7, 110–11 primary legislation, amendments to  109 procedure  110–15 constitutional amendments  110–11 EU law, transposition of  113–14 secondary legislation  115 treaties and conventions  111–12 types of national legislation  114 promulgation  114 publication of legislation  106–7, 108, 114–15, 117 regulation  117 rigidity  105 second readings  114 secondary legislation  109–10, 113, 117 enactment  115 enabling provisions  110, 115 government  109–10, 115 hierarchy of norms  109–10 procedure  115 separation of powers  105–6 sources of law  103–10 structure of legislation  115–17 style of legislation  115–17

Supreme Constitutional Court  115–17 Supreme Court amendments to Constitution, constitutionality of  110–11 establishment  107 necessity, doctrine of  103, 107 techniques of legislation  115–17 third readings  114 training  117 treaties and conventions bilateral agreements  112 competence to conclude agreements  109 Constitution  112 consultation  111 drafting  112 EU law, compliance with  111 hierarchy of norms  107–9 procedure  111–12 provisional application  108 reservations  111 Vienna Convention on the Law of Treaties  108 types of national legislation  114 Turkish Cypriots  106–7, 110–11 Vice-President, vacant position of  107 Czech Republic  119–36 amendments to Constitution  127 annulment of legislation  128 approval of legislation  127 bicameral system, as  7, 119 budget  127 Chamber of Deputies (lower house)  119, 124, 125–7, 129 Charter of Fundamental Rights and Freedoms  120–1 coalition governments  126, 129 Collection of Laws, publication in  121–2 Constitution  119, 120–1 amendments  127 drafting  130 EU law  123–4 multi-source, as  120 secondary legislation  122 constitutional acts  120 Constitutional Court  121, 128, 136 consultation  125 context  119, 136 drafting  30, 125, 129–32 Chamber of Deputies  129 Constitution  130 electronic instruments  131 formal requirements  130 improvements  132 quality of legislation  130–2 requirements for a draft  129–31 teaching and training  129–30, 134–5

Index  551 electronic publication  121, 131 eKLEP electronic library  131 eLegislativa project  131 emergency/urgent legislation  12 eSbírka project  131 EU law  123–4, 132, 136 Constitution  123–4 primacy  124 primary legislation  123–4 secondary legislation  123–4 teaching and training  135 transposition  124 evaluation and monitoring  128, 131–4 ex ante  132–4 ex post  134 explanatory reports  128 first readings  125 formal aspects of legal acts, deficiencies in  136 fundamental human rights  120–1, 123, 128 good law  26 government coalition governments  126, 129 executive phase of law-making  125 Legislative Council of the Government (LCG)  125, 132, 136 Legislative Rules of the Government (LRC)  124–5, 130–1 Odok information system  131 Outlook of Legislative Tasks  129 parliament, relations with  126 Plans of Legislative Tasks  129, 133 policy  128 programmes, length of  129 regulations  122 hierarchy of norms  119–24 hypertrophy of law (legislative inflation)  135 independent advisory boards  27 information systems  131 initiation of legislation  17, 124–6 instability  135 international law  123–4 judicial review  121 legal certainty  135 legislation, definition of  119–24 Legislative Council of the Government (LCG)  125, 132, 136 Legislative Rules of the Government (LRC)  124–5, 130–1 legisprudence  134–5 local authorities, legislation of  123 ministerial ordinances  122 monism  123 multi-layered systems, legislation in  8 municipalities  123 Odok information system  131

OECD  132–3 ordinances  122 ordinary statutes  120–1 organisation of law-making  124–8 Outlook of Legislative Tasks  129 Parliament bicameral system  119 Chamber of Deputies  119, 124–9, 131 government  125–6 parliamentary reservation, principle of  6 Senate (Upper House)  124 planning  128–9, 133 policy  126, 128–9, 131–2, 135–6 political parties and special interest groups  17 President  127–8 primary legislation  120–4 procedure  17, 124–8 promulgation  121 proportional representation  129 publication  121–2, 131 quality of legislation  121, 129–33 quantity of legislation  121, 135 Rechtsstaat  119 regions  8–9, 123 regulation  131–2 regulatory impact assessments (RIAs)  130, 132–3 ex ante review  133 ex post review  134 good law  26 guidelines  133 reservation of statute  120–1, 122, 124, 136 review of statutes  128 rule of law  119, 120, 128 second readings  125 secondary legislation  120–4 Senate (Upper House)  119, 125–7 approval of legislation  127 information systems  131 initiation of legislation  124 law-making  126–7 procedure  125–7 separation of powers  119 socio-economic impact  132, 133 special legislative procedures  127 teaching and training  129–30, 134–5 third readings  126 treaties and conventions  123, 132 unitary state, as  119 de Romilly, Jacqueline  197 debate and adoption of the law, parliamentary phase of  15, 17–19 bicameral countries  17–18 committees  17, 18

552  Index conflict-oriented cultures, debates in  18 consensus-oriented cultures, debates in  18 plenary for debating, sending bills to  18 rationalised parliamentarism  18 second chamber  17–19 shortening debates  18 stages  18 unicameral countries  17–19 Westminster model  17–18 debureaucratisation  24 decentralisation  8, 9, 16–17, 18–19 democracy  2–3, 5–6 citizens’ assemblies  5 concordance democracies  28 direct decision-making procedures  5 EU law  5 first past the post systems  5 legitimacy  5, 7, 11 liberal democracies based on rule of law  4–5 majoritarian competitive democracies  7 mixed voting systems  5 parliamentary democracies  3 participatory rights  5 plebiscites  20 proportional systems  5 rationality  5 referendums  5 representative democracy  5 Denmark  137–50 administrative instructions  138–9, 145, 147 administrative orders  138–9 administrative service regulations  138–9 amendments to the Constitution  137–8, 142–3 annual legislative programmes  147 citizens’ initiatives  139, 142–3 committees  138–42, 150 composition of a bill  146 concordance democracies  28 consequence analyses  149 consolidation acts  138, 143, 146–7 Constitution  137–8 1953 Constitution  137 amendments  137–8, 142–3 drafting  145 primacy  137–8 constitutional conventions  138 constitutional monarchy, as  3, 137 context  137 Council of Ministers  140 Council of State  140 debates  138 decentralisation  8 digital implementation  149 drafting  30, 139–40 adjustments  140

committees  139–40 consolidation acts  147 Constitution  145 experts  139 hearing process  140, 149 Ministry of Justice  139 techniques  145–7 elections  138 electronic publication  142, 149 emergency/urgent legislation  142 EU law accession, referendum on  143 directives, implementation of  146, 148 gold-plating of directives  148 Maastricht Treaty, referendum of  143 new legislation, need for  143 over-implementation  148 European Convention on Human Rights  138 evaluation and monitoring  7, 29, 148–50 finance bills  137, 140–1 first reading  137, 141–2 fundamental human rights  138 gender neutral language  145 good law  26 hierarchy of norms  137–8 identity principle  141 independent advisory boards  27 initiation of legislation  137, 138–40 citizens’ initiatives  139, 142–3 ministers  137, 138–40, 143 MPs  137, 139–40, 143 oral introductions in Parliament  140 preliminary comments  138 judicial review  137, 150 language  144–5 legisprudence  145–7, 150 management of legislation  139–43 ministers  137, 138–40, 143 organisation of legislation  139–43 Parliament  137, 142–4 annual legislative programmes  147 directives, implementation of  148 initiation of legislation  140 negative parliamentarism  142 policy-making procedure  143–5 quality assessment  149–50 reviews  149 policy-making procedure  143–5 political parties  139 preliminary works  138, 145, 148, 150 Prime Minister annual legislative programmes  147 policy-making procedure  143–4 publication  142 ratification of bills  142

Index  553 referendums  142 principles  138 procedure  137–45 publication  142 quality of legislation  141, 144, 145, 147, 149–50 ratification by signature of the monarch  142 referendums  5, 21, 139, 143–4 advisory referendums  143 amendments to Constitution  138, 143 EU  143 Prime Minister  142 sovereignty to international organisations, transfer of  143 regulation  138 regulatory impact assessments (RIAs)  26, 147–50 concordance democracies  28 ex ante  147, 149 ex post  147, 149 reviews  149 second reading  137, 141–2 separation of powers  138 soft law  139 sovereignty to international organisations, transfer of  21, 143 standing committees on finance  137 standing orders  137, 139, 140–2 statutory legislation  138–9 teaching legisprudence  150 territorial sub-units  6 third reading  137, 141–2 unicameral, as  137 deregulation  22, 24–5 devolution in UK  8–9, 497–9 drafting  497 Northern Ireland Acts of the NI Parliament  499 Assembly  9, 497, 499 compromise  497 Measures of the Assembly  499 Orders in Council  500 suspension of Assembly  497 old parliaments, acts of  500 primary legislation  499–500 processes  497 Scotland Acts of the Scottish Parliament  499 civil law tradition  497 innovation  497 Parliament  9, 499 secondary legislation  500 sources of law  10 style of legislation  497 Wales Acts of the National Assembly  499 bilingualism  497

Measures of the National Assembly  499 National Assembly in  9, 499 Westminster Parliament  497, 499–500 Dingli, Adrian  334 drafting abbreviations, avoidance of  33–4 accuracy  31 ambiguity, avoidance of  32–4 centralisation  16–17 checklists  22 civil law  31, 34 clarity  31–3 common law  31 composition and development of the draft  21 consistency with existing legislation  31 constitutions  22 decentralisation  16–17 designing the law  21 efficiency  31 EU law  33–4 functional-rational decisions  25 gender neutrality/gender inclusivity  34 good law  25–6 guidelines  31 imprecise references to other legal texts  33–4 initiation of legislation  16–17 interpretation  31 irrelevant provisions, avoidance of  31 language  30–4 legal certainty  31 legality, principle of  31–2 legislative traditions  31 ministries  17 necessity  31 objectives of legislation  26 parliaments  28 plain language  31, 32–3 policy  25 precision  31 proportionality  31 quality of legislation  23, 26–8, 31 rationality  25 reasons, giving  26 regulatory impact assessments (RIAs)  26–8 repetition, avoidance of  33–4 same concepts, avoidance of use of different terms for  33 simplicity  31, 33–4 structure of legislation  30–4 techniques  30–4 uniform terminology  31 verification of the draft  21 why, what and how to draft  25 dualism  21 due process  6

554  Index economic recession of 1980s  22 education  22 effectiveness  23, 24, 26, 28–30, 541–2 efficiency  13, 24, 31 electoral law  11 electronic publication  19, 541 emergency/urgent legislation  13 enactment and promulgation  15–16, 19–20 certification of bills  19 constitutional courts, role of  20 constitutionality of draft, examination of  19 electronic promulgation  19 heads of state  19 post-parliamentary phase  15–16, 19–20 suspensive right  19 veto right  19 Estonia  151–65 accessibility  158 administrative acts  152 amendments  152–4, 156, 159–60 Better Regulation  151, 157, 161, 163 collective address of the people  156 committees  155–6 Constitution  151–2 amendments  152, 156 priority  152 protective clause  14, 154 constitutional laws  153 consultation  20, 158–9 context  151 coordination  158 cost-benefit analysis  162–3 decrees, right to issue  152–3 deregulation  24 drafting  30, 159–60 amendments  159–60 EU law  163–4 explanatory memorandum  160 lawyers’ drafting legislation  163–5 repeals  159–60 requirements for draft acts  159–61 rules  157 structural parts, addition of  160 techniques  159–61 training  163–5 dualism  152 emergency/urgent legislation  153 entry into force  155 Estonian language  159, 161 Estonian Literary Standard  159 Estonian Regulatory Oversight Model  25 EU law accession  151, 153–4 amendments  153–4 Better Regulation  157, 161, 163

Constitution  153–4 drafting  163–4 harmonisation of laws  154 impact assessments  163 language  159 legality, principle of  154 primacy  154 protective clause  14, 154 publication  160–1 explanatory memorandum  160, 163–4 first readings  155–6 fundamental human rights  162 generally recognised principles of international law  152 government  153–4 hierarchy of provisions  151–3 initiation of legislation  154 integrated regulatory governance  157 intent, development of  157–9 international law  152 language  159, 161 legality, principle of  154 local authorities  152, 153 management of legislation  154–6 monism  152 multi-layered systems, legislation in  8 new terms, introduction of  159 online, publication of legislation  159, 160 organic laws  11 organisation of legislation  154–6 Parliament  151–2 Constitution, amendment of  156 drafting  163–4 quality  158 referendums  152, 156 policy, development of  157–9, 162 precision  159 President  152–3 priority of law principle  151–2 procedure  154–6 public participation  158 publication  159–61 quality of legislation  23, 158 referendums  5, 20, 152, 156 regulatory impact assessments (RIAs)  157–9 coordination  158 EU law  163 ex ante  157–8, 161–3 ex post  161–3 guidelines  157 integration  157 mandatory  161–2 regulatory oversight model  158–9 repeals  159–60 rule of law  7, 151, 153, 161–2

Index  555 second readings  155–6 separation of powers  153 socio-economic and socio-legal information  157, 161–2 soft law  154 sources of law  151 stakeholder engagement  158 Supreme Court  153–4 techniques of drafting and publishing  159–61 third readings  155–6 training  163–5 transition to democracy  151 transparency  158 unicameral, as  17 voting  155 ethnocultural divisions  8 EU law  511–39 accessibility  525, 534, 536 amendments codification  537, 538 Council  523, 526 European Commission  522, 524, 526, 536 European Parliament  522, 526 annulment actions  531 area of freedom, security and justice (AFSJ)  4–5 Better Law-Making Agreement 2003  25, 528, 534–6 Better Regulation programme  1, 25, 534–6 Brexit  512 challenges to acts  530 Charter of Fundamental Rights of the EU  5, 530 co-decision procedure  521, 524, 528 codification  537, 538 committees  522 Community method  521 competences  14 composite state, as  9 conciliation procedure  523 condensing the statute book  536–8 conferral, principle of  14, 513–14 consolidation  537 constitutional state, law-making in the  2–3 constitutions  14 consultation  521, 526 consumer protection  22 context  511 corrigenda  536–7 Council of the EU  512, 523 accessibility  525 administrative support  523 amendments  523, 526 annulment actions  531 co-decision procedure  521 Community method  521 consultation  521

drafting  525–8, 530, 536 European Commission  522–4, 526 European Parliament  523 experts  523 general approach  523 General Secretariat  523 languages  524, 526–8 lawyer-linguists  526–8 ordinary legislative procedure (OLP)  529 preparatory bodies  523 presidency  523 quality of legislation  533 Rules of Procedure  526, 528 Court of Justice (CJEU)  14, 29, 513, 531–3, 538 Advocates-General  513 annulment actions  531 context  533 direct effect, principle of  515 infringement proceedings  532 interpretation  511, 531–3 languages  524, 532 literalist approach  532 preliminary rulings  513, 531 primacy of EU law  515 proportionality  514 publication  525 role  531–3 rule of law  7 subsidiarity  514 travaux préparatoires  533 Vienna Convention on the Law of Treaties  532 culture  22 decentralisation  527 democracy  5 deregulation  25 direct applicability  14 direct effect  14, 515 directives, transposition of  14, 27 drafting  33–4 better law-making, 2003 Agreement on  528 consistency  511 Council  525–8, 530, 536 decentralisation  527 editing services  526 European Commission  525–8, 530 experts  525–6, 528 form and presentation of acts  526 guidelines  527–8, 530–1, 533 Inter-Institutional Style Guide  527 Inter-Service Consultation (ISC)  526 Joint Handbook for the Presentation and Drafting of Acts Subject to the OLP  527 Joint Practical Guide  530 language, use of simple terms and everyday  531

556  Index languages  526–8, 531 LegisWrite  527 length of legislation  530 Manual on Legislative Drafting (Commission Legal Service)  527 presentation of legal acts  527 process  525–6, 530 proportionality  514 quality of legislation  528, 533 rules  526–8 structure of legislation  527, 530–1 style  529–31 subsidiarity  514 technical experts  525–6 education  22 EEC  512 effectiveness  534–5 electronic publication  525 environmental protection  22 EU, creation of the  512 Euratom  512 EUR-Lex  522, 525, 537 European Coal and Steel Community (ECSC)  511–12 European Commission  512–14 accessibility  525, 536 amendment of proposals  522, 524, 526, 536 Better Regulation Toolbox  535, 536 co-decision procedure  524 Community method  521 consultation  521 Council  522–3, 524, 526 drafting  525–8, 530 EUR-Lex, publication as COM documents on  522 European Parliament  524, 526 experts, advice from  521 financial penalties  532 Green Papers  521 impact assessments  522 infringement proceedings  532 Inter-Service Consultation (ISC)  526 languages  522, 524, 526–8 lawyer-linguists  527–8 preparatory work  521–2 proposals  521–4, 526, 533 publication  522 quality of legislation  534 REFIT programme  25, 535, 536, 538 register of documents, publication on  522 Regulatory Fitness and Performance programme  535 Regulatory Scrutiny Board  27–8, 535 secondary legislation  13 Secretariat-General  526

Smart Regulation project  534–5 soft law  14 structure of legislation  528 White Papers  521 withdrawal of proposals  524 European Council  512, 534 European Parliament  512, 522–3 accessibility  525 amendments  522, 526 annulment actions  531 co-decision procedure  521 committees  522 Community method  521 consultation  521 Council  522, 523 Directorate for Impact Assessment and European Added Value  522–3 drafting  522, 526–8, 530, 536 European Commission  522, 523–4, 526 languages  524, 526–8 lawyer-linguists  526–8 ordinary legislative procedure (OLP)  529 rapporteurs  522 Rules of Procedure  526, 528 voting  522 evaluation and monitoring  29, 514, 529, 536, 537–8 experts  521, 523, 525–6, 528 first readings  523 fundamental human rights  2, 4–5, 14, 533 general principles  513–15, 533 gold-plating of directives  27 harmonisation of laws  29 hierarchy of norms  14, 529 High Level Group of Independent Stakeholders  28 indirect administration, principle of  515 informal trilogues  523 infringement proceedings  532 institutions  511–14 accessibility  525 agreements between institutions  523 co-decision procedure, Joint Declaration on  528 European Coal and Steel Community (ECSC)  511–12 Inter-institutional Agreement on Better Regulation  535 Inter-Institutional Style Guide  527 present position  512–13 quality of legislation  527, 533 recasting, agreement on  537 trilogues  523 internal market  513 interpretation  511, 531–3

Index  557 Inter-Service Consultation (ISC)  526 languages  511, 524–5 accessibility  525 CJEU  524, 532 consolidation  537 corrigenda  536–7 Council  524, 526–8 drafting  526–8, 531 European Commission  522, 524, 526–8 European Parliament  524, 526–8 lawyer-linguists  526–8 multilingualism  524 official languages  524, 526–7, 537 quantity of legislation  538 simple and everyday terms  531 legal basis, choice of  514 legal certainty, principle of  533 LegisWrite  527 length of legislation  530 Lighten the Load website  536 Lisbon Treaty  14, 512, 514, 525 new legal order  513, 538 number of member states  512 Official Journal, publication in  525, 536–7 ordinary legislative procedure (OLP)  521, 527, 529 origins  511–12 pluralist and liberal democracies, member states as  2–3 preparatory stages  521–3, 525 present position  512–13, 535–6 presentation of legal acts  527 primacy of EU law  14, 515 principles  4 procedure  15, 511, 525–6, 528, 530 proportionality  14, 513–14, 530 publication  522, 525, 536–7 quality of legislation  1, 23, 25, 527–8, 533–6 1998 Agreement  528, 533 Better Law-Making Agreement 2016  535–6 Better Regulation Guidelines  536 Birmingham Declaration  533 Council  533 current work  535–6 drafting  528, 533 European Commission  534 governance initiative  533–4 guidelines  533 improvement, calls for  533 institutions, response of  533 Koopmans committee  533 Mandelkern Group  534 Regulatory Fitness and Performance programme  535 Smart Regulation project  534–5

quantity of legislation  24, 25, 533, 538 recasts and reviews  529, 536, 537–8 recitals  530 REFIT programme  25, 535, 536, 538 register of documents, publication on  522 Regulatory Fitness and Performance programme  535 regulatory impact assessments (RIAs)  26–8, 521–3 Regulatory Scrutiny Board  27–8, 535 repeals  538 Rome Treaties  512–13 rule of law  2, 4, 6–7, 525 science  22 second readings  523 secondary legislation  13 simplification  534, 536 sincere cooperation, principle of  514–15 Smart Regulation project  534–5 soft law  14 sovereignty, transfer of  9 structure of legislation  527–31 style of legislation  529–31 subsidiarity  14, 513–14, 530 supranationalism  9 time limits  523 training  34 transparency  523, 525, 534 travaux préparatoires  533 Treaty on the Functioning of the EU (TFEU)  512, 513 types of legal acts  515–20 updating the statute book  536–8 Vienna Convention on the Law of Treaties  532 voting  522 European Court of Human Rights (ECtHR)  7 evaluation and monitoring of legislation  21–30 see also regulatory impact assessments (RIAs) academic discussions  29 accessibility  24 committees  29 conformity with the constitution  24 constitutional courts  29–30 creative compliance  30 criteria  24 effectiveness  24, 28–30 efficiency  24 ex ante evaluation  7, 21, 26–8 ex post evaluation  21, 22–3, 28–30, 541 harmonisation of EU law  29 implementation  30 judicial review  29–30 legalisation, reduction in  24 parliaments  29

558  Index policy experiments  29 proportionality  24, 29 public debate  29 quality  24, 28–30 reports of governments on particular date after implementation  29 revisions/amendments  28, 30 sunset clauses  29 Supreme Courts  29 transparency  24 executive see government expert groups  16 explanatory memoranda  17, 22 federalism  8, 9 Feindt, PH  61 Filangieri, G  267 final texts of legislation  17 finance bills  21 Finland  167–79 attorneys-at-law, regulation and supervision of  170 Better Regulation  176 Bureau of Legislative Inspection  177 business, specific fields of  170–1 citizens’ initiatives  20, 172 committees  172–4 concordance democracies  28 consensus-oriented cultures, debates in  18 Constitution  167–8 amendments  12 Constitutional Law Committee  173 drafting  176 hierarchy of legislation  167–8 objectives  172 consultation  174 context  167 co-regulation  170 decentralisation  8, 174 decrees  168, 173 deregulation  24, 169 drafting  30, 172, 174–6 Bill Drafting Instructions  175, 177 committees  174 Constitution  176 decentralisation  174 EU law  176 experts  174, 177 Impact Assessment in Legislative Drafting Guidelines  175–6 information, inadequacy of  175 Legislative Drafting Process Guide  175–6 ministries  174, 177 preparatory work  174–5 procedure  174–6

quality of legislation  176 regulatory impact assessments (RIAs)  175–7 steps  175 time, lack of  175 enactment of legislation  172–3 EU law drafting  176 Europeanisation  167, 170 hierarchy of norms  169 quantity of legislation  169–70 evaluation and monitoring of legislation  176–8 ex post studies of legislation  178 experts  174, 177 Finlex Data Bank  169 Finnish Council of Regulatory Impact Analysis  177–8 fundamental human rights  167 globalisation  167 good law  26 government  16, 167, 172–3 guidelines, norms arising from  170 hierarchy of legislation  167–9 independent advisory boards  27 initiation of legislation  167, 172–3 citizens’ initiatives  20, 172 government  17, 172–3 Parliament  172 Institute of Criminology and Legal Policy  178 internationalisation  167 Law Drafting Department of the Ministry of Justice  177 legality, principle of  167–8 legislative studies  178 media, self-regulation of the  171 ministries  17, 172, 174, 177 objectives of legislation  172 OECD  168–9, 176 Parliament initiation of legislation  172 Law Committee  172–3 parliamentary laws  167–8, 172–3 review of constitutionality  173 policy  25 preparatory work  174–5 President, decrees of  168, 173 procedure  174–6 quality of legislation  1, 176–8 quantity of legislation  168–70 regulatory impact assessments (RIAs) concordance democracies  28 drafting  175–7 Finnish Council of Regulatory Impact Analysis  177–8

Index  559 good law  26 Impact Assessment in Legislative Drafting Guidelines  175–6 rule of law  167 self-regulation  170–1 soft law  170–1 sporting activities, self-regulation of  171 standardisation, norms arising from  170 standing committees  172 Statutes of Finland  169 subordinate rules  168 teaching  178 transnational value chains  170 unicameral, as  17 first past the post systems  5 first readings  17 flexibility of norms  12, 13 France  181–97 accessibility  193 amendments to the Constitution  185 Better Regulation  182, 194, 196 budget, laws on the  185 civil society actors, involvement of  188–9 clarity  193 codification  10, 185–6, 191–2, 194, 195 concertations  188 conflict-oriented cultures, debates in  18 Conseil constitutionnel  10, 183–4, 193 Conseil d’Etat  17, 27–8, 183, 187–8 definitions  193 government, as adviser to the  17, 187 management rules  195 soft law  184 Constitution 1958  10, 183–6 amendments  185 Spain  457 constitutionalisation or fondamentalisation of French law  7. 10, 183, 191–4 consultation  188–9 context  181–2 Cour de cassation  183 criticisms  190, 191 cross-referencing  193 Declaration of Human and Citizens’ Rights  183 densification of the French legal system  186 drafting  17, 181–2 accessibility and legibility  193 binding rules  193–4 clarity  193 codification  192 concise drafting  192 constitutionalisation  191–4 constitutionality  19 conventions  191

cross-referencing  193 definitions  193 expertise  186–7 golden rules  192 imprecise references to other legal texts  33 individual provisions  192 Luxembourg, influence on  321 ministries  186–8 neutrality  192 quality  17, 181–2 risky techniques  193 structure  192 systemisation  191–4 training  196–7 efficiency  181 emergency/urgent legislation  12 equality before the law  5 EU law  183–4 directives, transposition of  184, 196 Europeanization  195 general principles  184 gold-plating of directives  196 harmonisation  29, 195 quantity of legislation  195, 533 regulations  184 secondary legislation  184 sovereignty, transfer of  9 supremacy  183–4 evaluation and monitoring legislation  29, 189–91 existing statutes, managing the stock of  195, 197 experts  186–7, 190 form of the law  181 fundamental human rights  5, 183 gender neutrality/gender inclusivity  34 general will, law as expression of the  10 globalisation  10, 183 government Conseil d’Etat  17, 27–8, 187 Ordonnances  185 regulation of law-making phase  186–7 heads of state, suspensive right of  19 hierarchy of laws  10, 183–4, 187 institutions  186–9 Internet, open consultations on the  188 intra-legislative norms, expansion of  184 law-making in practice  186–9 legibility  193 legislative technique  172 legisprudence formal  191–4 manuals  196 origins  181 procedural  186–9 substantial  189 training  182, 196–7

560  Index légistique, use of term  182 lobbying  189 lois d’habilitation  185 Luxembourg, influence on  321 maintenance of legislation  194–7 methodical approach to elaboration and implementation of bills  189–90 ministries  17, 186–8, 196–7 MPs  185, 194 new norms, managing the flow of  194–5 ordinary statutes  185 ordonnances  185 organic laws  10, 11, 12, 185, 190 oversight of law-making process  17, 187–8 Parliament  185–7 parliamentary reservation, principle of  6 public policy  274 rationalised parliamentarism  18 simplification  195 policy  274 preparatory phase  3, 17, 188 presidential system, as  7 Prime Minister  185 procedure  181, 186–9 proliferation of norms  194–7 public debates  188–9 public, presentation of drafts to  17 public protests  188–9 quality of legislation  4, 17, 181–2, 187, 197 quantity of legislation  181, 195, 197, 533 rationality  3, 13, 18, 181 referendums  5, 185 regulatory impact assessments (RIAs)  187, 189–91, 194 scrutiny in practice  191 secondary legislation  182, 184–6, 189, 195 Secretariat General du Gouvernement (SGG)  17, 187–8 simplification  195 social scientific methods  189–90 soft law, expansion of  10, 184 Spain  457 statute law  3, 181, 183–6 structure of legislation  192 sub-statutory law, expansion of  10 systemisation  191–4 territorial entities  9 training  182, 196–7 transparency  189 Franco, Francisco  454 freedom and liberty of persons  5 functions of law, changes to  1–2 fundamental human rights  2, 4–7 area of freedom, security and justice (AFSJ)  4–5 Charter of Fundamental Rights of the EU  5

constitutional courts  5 constitutional state, law-making in the  2, 4–5 democracy  5 equality before the law  5 EU  2, 4–5 European Court of Human Rights  7 freedom and liberty of persons  5 human dignity  5 liberal democracies based on rule of law  4–5 life, right to  6 social security benefits  5 gender neutrality/gender inclusivity  22, 34 generations, solidarity between  22 Gerdjikov, Ognyan  80 Germany  199–211 abbreviations, avoidance of  33 abrogation of laws  207 administrative guidelines  202 administrative regulation  202 amendments  202, 206–8 annulment actions  7 audit courts  29 Austrian law, influence on  45, 47 Basic Law (Constitution)  199–200, 205 amendments  202 explicit positive norms  200 Federal Constitutional Court  200–1, 209–10 principles  21 supremacy  200, 202 bicameral system  17 budgets  21, 207 by-laws  202, 203 clarity  206, 208 codification  207 commissions  204 committees  19, 204, 209 competences  203–4 competitive federation, as  9 conciliation committees  19 conflict-oriented cultures, debates in  18 constitutional state as a framework  199–201 constitutionalisation of law  10 context  199 democratic state, Germany as a  7, 201–2 deregulation  24 drafting  26, 30, 203–8 abbreviations, avoidance of  33 amendments  207–8 cabinet  205 constitutionality  19 Federal Chancellor  205 financial implications  206 good laws  208–10 government  205

Index  561 imprecise references to other legal texts  33 instruments  205–6 lead ministries  205 ministries  204, 205 States (Länder)  204 style  206 due process  201 effectiveness  208 efficiency  205, 208 elections  203 EU law  207–8 Basic Law  203 direct applicability  14 slim and smart legislation  208 sovereignty, transfer of  9 evaluation and monitoring legislation  208–10 audit courts  29 ex ante  208–9 ex post  208, 209–10 experts  204 Federal Chancellor  205 Federal Constitutional Court  4, 7, 29, 199–201, 205 Basic Law  200–1, 209–10 constitutional complaints  210 constitutionality of acts  210 referrals  19 regulatory impact assessments (RIAs)  27 Federal Council of States (Bundesrat)  9, 18, 19, 199, 202, 203–4 Federal Diet (Bundestag)  9, 202, 203–4, 209 Federal Law Gazette, publication in  204 federal state, Germany as a  9, 201 financial implications  206 first readings  204 formal criteria  208 fundamental human rights  199–201, 205 gender neutrality/gender inclusivity  34 good laws  208–10 government  16, 204–5 guiding principle of legislation  199–201 Handbook for the Preparation of Statutory Laws/Instruments  206 heads of state, suspensive right of  19 hierarchy of laws  12, 202 homogeneity of law, principle of  15 initiation of legislation  16, 17, 20, 204, 206–7 instruments of legislation  205–6 Internet, publication on the  204 judiciary, independence of the  201 language  32, 206–8 legality, principle of  31, 201 legislative cycle  203 local communities  203 Manual for Drafting Legislation  204, 206

material criteria  208 methodology  205–6 ministries  17, 204–5, 209 multi-layered systems, legislation in  8 municipalities  203 National Regulatory Control Council (NRCC)  209 objectives of legislation  26, 205–6 Office of Sustainable Development  28 Office of Technology  28 organisation of legislation  203–4 Parliament bicameral system  17 Federal Council of States (Bundesrat)  9, 18, 19, 199, 202, 203–4 Federal Diet (Bundestag)  9, 202, 203–4, 209 personality, right to  4 plain language  32 policy-making  25, 205–6 principles  4 procedure  203–4 promulgation  204 publication  204 quality of legislation  208 quantity of legislation  202, 208 rationality  205 Rechsstaat  199–200 referendums  201 regulation  24, 202 regulatory impact assessments (RIAs)  27, 208–10 reprinting  207 republican principle  201 reunification  202 revision of texts  207 re-writing or re-statement  207 Romania, influence in  2 rule of law  7, 199–202, 205, 210 second readings  17, 204 secondary legislation  202 separation of powers  199–200 simplicity  207 slim and smart legislation  208 social federal state, Germany as a  200 sovereignty, transfers of  21 special categories of law  207 States (Länder)  9, 200–1, 209 Constitutions  201 direct democracy  201 drafting  204 execution of law  201 Federal Council of States (Bundesrat)  199, 202, 203 reunification  202 rule of law  201 statutory instruments  202

562  Index statutory laws  12, 202 statutory reservation  206 structure of legislation  206–8 style of legislation  206 Sweden, influence in  2 techniques  206–8 third readings  204 transparency  207, 208 types of law  202–3 globalisation  10 good law  21–30 good governance policies  22 Gorbachev, Mikhail  372 Governance Initiative (EU)  25 government arbitrary use of government power  6 branches  2 coalition governments  17 constitutional state, law-making in the  3 councils of state as advisors to government  28 forms of government  3 framework  3 good government  15 heads of state  3 initiation of legislation  7, 16–17, 21 organisation  12 procedure  15, 16 rule of law  6–7 secondary legislation  13 territorial corporations, power delegated to  8 Greece  213–31 Acts of Legislative Context  214 adoption of legislation  215, 219–21 amendments Constitution  213–15, 219 drafting  216–17, 224, 226 assessment of laws  226–9 Better Regulation  216–19, 222–3, 226–7, 230–1 budgets  217, 227 clarity  222 codification  214, 218, 221–2, 229–30 administrative codification  229 Central Codification Committee (CCC)  229–30 Codification and Law Reform Committee  229–30 drafting  230 formal codes  229 manual  230 committees  214–16, 218–21, 223, 225, 229–30 Constitution  213–15, 224 amendments  213–15, 219 codification  214 initiation of legislation  215, 219 principles  22

constitutionality  214 consultation  216–17, 222, 227–8 context  213–14 Coordination Services  219 culture  213, 222–3, 230 custom  214 decrees  214, 224 delegation  214, 224–5 diffuse responsibility  219 drafting  30, 213, 214–17, 222–6 amendments  216–17, 224, 226 budgets  217 Central Law Drafting Committee (KENE)  218, 223, 225 codification  230 committees  214–16, 219 directives, transposition of  226 experts  219, 231 homogeneity  224 language  223, 225–6 Law Drafting Manual  223 Manual of Drafting Methodology  225–6 principles of law-making  223 reports  216–17 rules  214–18, 225 secondary acts  224 teaching  231 technics of legislation  223–6 training  223 effectiveness  225, 228 emergency/urgent legislation  214, 219–21 EU law  221–2, 225–6, 228–9 evaluation and monitoring of legislation  218, 220, 226–30 experts  219, 231 explanatory reports  214 feedback  228 finance bills  215 first readings  220 gender equality  222, 225 gender neutrality  225 generally recognised rules of international law  214 government coordination  217 evaluation  213 General Secretariat  217–19, 222–3 implementation  213, 226–9 initiation of legislation  215 hierarchy of the legal order  213–14 implementation of laws  213, 226–9 initiation of legislation  213, 215, 217, 219–21 international law  214 language  223, 225–6

Index  563 Law on the Executive State  215–16, 222–8 law reform  228–9 legal certainty  222 legality, principle of  214 legisprudence, teaching  230–1 management of legislation  213, 221–3 ministries  214, 215, 217, 219 MPs  220, 227 Office of Legislative Initiative  217 Parliament  213–14, 220 popular legislative initiatives  215 preparation of legislation  215–19 actors active in preparation  217–19 pre-legislative process  222 President  213–14, 228 decrees  214, 224 drafting committees  219 evaluation  228 initiation of legislation  215 primary laws or statutes  213–14, 221 Prime Minister  217–18, 222 principles of law-making  221–3 procedure  214–15, 222 publication  214, 221, 228 quality of legislation  215, 217–19, 221–4, 229 referendums  219 regulation  213–14, 221–2, 225 regulatory impact assessments (RIAs)  213, 216, 218–19, 222, 226 ex ante  227–8 ex post  228 Manual for Impact Assessments  227 teaching  230–1 Scientific Service of the Hellenic Parliament  220 second readings  220 secondary legislation  221, 224 separation of powers  213 simplicity  222 simplification  228–9 soft law  214 standing orders  213, 217, 219–21 teaching  230–1 technics of legislation  223–6 transparency  216, 220, 222 treaties and conventions  214 types of legislation  213–14 guillotine procedures  18 Hallstein, Walter  513 heads of state  3, 5, 19–20 hierarchy of laws  10–13, 31 homogeneity of law, principle of  15 human dignity  5, 22 human rights see fundamental human rights

Hungary  233–50 Act on Legislation  237, 239, 246, 248 amendments to Fundamental Law  236, 238 budgets  240 cardinal acts  10, 234, 236, 238 Christian tradition and identity  234, 236 committees  242–4 Constitution  11, 234 Constitutional Court  233, 241, 245 constitutional identity  236 consultation  237, 240–2, 247 context  233 culture  234, 236 decrees  237–9 democracy  235 deregulation  247 drafting  237, 239–42 ECOSTAT Government Feasibility Centre  248 electronic publication  241–2 emergency decrees  238 EU law  236–7, 240 evaluation and monitoring of legislation  247–9 family, definition of  235 Fidesz political party  233, 243 Fundamental Law (FL)  10, 234, 237–9 amendments  236, 238 Constitution, neutrality of former  234 definition  238 foundation of the legal system, as  10 goals  234 government  238 hierarchy of norms  238 illiberal Constitution, as  233, 236 Parliament, amendment by  238 statutory law as supplement to  12 fundamental human rights  235–6 generations, protection of future  234 goals of legislation  234–6 government drafting  241 ECOSTAT Government Feasibility Centre  248 Fundamental Law  238 initiation of legislation  239–40, 242–4 pre-parliamentary phase  241 President, loyalty to  245–6 hierarchy of norms  236, 237–9, 247 human dignity  235 ideology  234 illiberalism  233, 236, 249 implementation of laws  247–9 initiation of legislation  236, 239–40 collegiate bodies  242 committees  242

564  Index government  239–40, 242–4 MPs  242 President  242 judiciary, independence of the  235 junk laws  4, 24, 243 language  234, 247 laws, definition of  237–9 legal certainty  247 legisprudence  233, 249 local government decrees  238 ministerial decrees  238 National Avowal  234–5 national minorities, protection of  234–5 objectives of legislation  233, 238, 249 Official Gazette, publication of  237–8 organic laws  12 organisation of legislation  239–46 overtime amendment or slave law  235 Parliament  234–5 consultation  241–2 Fundamental Law, amendment of  238 national minorities, involvement of  235 parliamentary phase  237 process  242–5 reconsideration, legislation sent back for  246 Rules of Procedure  237 peaceful co-existence with other nations  235 political goals  233, 249 populism  242 post-parliamentary phase  237, 245–6 preparatory or drafting stage  237, 239–42 electronic publication of drafts  241–2 quality  244 regulation  237 standing orders  237 technics of legislation  246–7 training  244, 249 President decrees  238 government, loyalty to the  245–6 initiation of legislation  16, 242 promulgation  245 publication  245 vetoes  245 Prime Minister  238 procedure  237, 239–46 promulgation  245 publication decrees  238 electronic publication  241–2 Official Gazette  237–8 President  245 quality of legislation  233, 247, 249–50 drafting  244 formal  233

illiberalism  233 junk laws  4, 243 material  233 regulatory impact assessments (RIAs)  248 quantity of legislation  14, 243–5 referendum  5 regulation background  236–7 drafting  237 public law, regulatory means of  237–9 regulatory impact assessments (RIAs)  27, 237, 240, 244, 250 ex ante  247–9 ex post  247–9 guidelines  247 quality  248 resources, protection of  234 reviews  245 rule of law  246 Slovak law, influence on  415 sources of law  238–9 Speaker  242–3 standing orders  237, 240–1 teaching and training  244, 249–50 technics of legislation  246–7 treaties and conventions  237 vetoes  245 impact assessments see regulatory impact assessments (RIAs) imperative laws  26 independent advisory boards  27 inductive laws  26 initiation of legislation  7, 16–17, 20–1 instrumentalism  23 international agreements  11, 13, 21 Ireland  251–66 accessibility  263–4 Act of Union 1800  254 amendments EU treaties  252 legislation  255, 257, 259, 261, 263–4 Attorney General  261 Better Regulation  262–3 Bills Office  256 Brehon law (customary law)  254 case law/common law  251, 253, 265 Chief Parliamentary Counsel  261 citizens’ assemblies  5, 260 commencement orders  258 committees  256–7, 261 competences, restrictions on  19 consolidation bills  258

Index  565 Constitution 1922  252 1937  251, 252 amendments  251–2 EU law  251 hierarchy of laws  251–2 Northern Ireland, claim to  252, 264 secondary legislation  253 urgent legislation  257 Constitutional Convention  260 constitutional law  252 consultation  263 context  251 corporate representations of interests  6 customary law  254 Dáil Éireann  256–7, 259, 261 decentralisation  18–19 drafting amendments to bills  261 guidance  261 Northern Ireland, joint legislation with  265 Office of Parliamentary Counsel to the Government  260, 261, 265 plain English  255 primary legislation  261 private members’ bills  258 secondary legislation  259–61 style  255 training  261, 265 dualism  252 enactment/Parliamentary phase  256–9 entry into force  258 EU law accession  251 amendment of Treaties  252 direct applicability  252 direct effect  252 hierarchy of laws  251 primacy  14, 251 secondary legislation  252 status  252 explanatory memorandums  259 Final Stage  257 fundamental human rights  252 gender-neutrality  255 Good Friday Agreement  264 government Government Legislation Committee  261 initiation of legislation  255–6, 257, 258 pre-enactment stage  256 quality of legislation  259 hierarchy of laws  251–4 initiation of legislation government  255–6, 257, 258 private bills  258–9

private members’ bills  258 sources  255–6 Irish State Gazette, publication in  257, 263 language  255 languages  264 Law Reform Commission  263–4 ministers  253 negative laying provisions  260 Northern Ireland constitutional claim  252, 264 Good Friday Agreement  264 joint legislation  264–5 partition of Ireland  251, 264 OECD  263 older forms and sources of law  254 online publication  264 Parliament  251, 256–8 Bills Office  256 committees  256 Dáil Éireann  256–7, 259, 261 enactment/Parliamentary phase  256–9 Office of Parliamentary Legal Advisers  258 Seanad Éireann  256–9 secondary legislation  260 Parliamentary Counsel  260, 261, 265 partition of Ireland  251, 264 policy  256 post-enactment phase  259 pre-enactment phase  255–6 President non-political, as  256 primary legislation  252 signing of laws  256–8 Supreme Court, referrals to  257 primary legislation drafting  261 enactment/Parliamentary phase  256–9 hierarchy of laws  251 Parliament  252 pre-enactment phase  255–6 President  252 procedure  255–9 publication in the Irish State Gazette  257, 263 regulatory impact assessments (RIAs)  262 secondary legislation  253 structure  255 Prime Minister  256 private bills  258–9 private members’ bills  258 procedure primary legislation  255–9 secondary legislation  259–60 stages  257 promulgation  257 publication  257, 262–4

566  Index quality of legislation  259, 263 quantity of legislation  253 quasi-legislation examples  253 hierarchy of laws  251, 253 referendums  5–6, 21 regulatory impact assessments (RIAs)  256, 259 guidelines  259, 262 primary legislation  262 publication  262 quality  263 secondary legislation  262 Report Stage  257 Royal Prerogative  254 rule of law  251 Seanad Éireann  256–9 secondary legislation  251–2, 253 amendments  264 annulment  260 classifications  255 commencement orders  258 Constitution  253 drafting  259–60, 261 EU law  252 hierarchy of laws  251, 253 ministers  253 negative laying provisions  260 online access  264 parliamentary oversight  260 primary legislation, authority of  253 procedure  259–60 publication in the Irish State Gazette  263 regulatory impact assessments (RIAs)  262 statutory instrument, definition of  255 signing of laws  256–8 sources of law  251–4, 265 standing orders  257, 258–9 statutory instrument, definition of  255 structure of legislation  254–5 Supreme Court  252, 257 style of legislation  255 training  261, 265 treaties and conventions  252 UK, influence of  251 Italy  267–81 abbreviations, avoidance of  33 academic scrutiny of legislation  267–8 amendments to the Constitution  274 Better Regulation  267, 273, 275–9 bicameral system, as  7 budgets  21 by-laws  13 Chamber of Deputies  17, 19, 270–1, 273, 275–6 citizens’ initiatives  5, 20, 267, 270, 272 clarity  275

committees  18, 271, 273, 275–6 concurrent powers  8 conflict-oriented cultures, debates in  18 Constitution  8, 268, 270, 274, 281 Constitutional Court  29, 275 consultation  272 context  267 Council of State  28, 278 decentralisation  18–19 decree laws  267, 268–9, 278, 281 Department of Legal and Legislative Affairs (DAGL)  270–1, 277–8 drafting  30, 270–1 abbreviations, avoidance of  33 ambiguity, avoidance of  33 constitutionality  19 guidelines and manuals  276, 281 quality of legislation  274–5 regions  276 regulatory impact assessments (RIAs)  279 repetition, avoidance of  33 same concepts, avoidance of use of different terms for  33 training  279–80 economic interest groups, lobbying by  272 electronic publication  271 emergency legislation  268 EU law directives, implementation of  269 legislative decrees  269 sovereignty, transfer of  9 evaluation and monitoring of legislation  30, 272–4, 276–8 exclusive powers  8 gender neutrality/gender inclusivity  34 government  268–9 Council of State  28, 278 initiation of legislation  16, 269, 270, 272–3 non-primary legislation  269 objectives of legislation  272–3 secondary legislation  267 guillotine clauses  271–2 heads of state, suspensive right of  19 independent agencies (IAs), regulations adopted by  267, 269–70, 272 initiation of legislation  19, 270–1 citizens  20, 267, 270, 272 Department of Legal and Legislative Affairs (DAGL)  270–1 government  16, 267, 270, 272–3 ministries  270–1 MPs  267 National Council of Economy and Labour (NCEL)  270

Index  567 Regional Councils  270 stakeholders  16 legal certainty  271 legislation, definition of  268–70 legislative decrees  267, 268–9 management of legislation  270–2, 275–8, 281 ministries  270–1 multi-level character of legislation  8, 269 National Council of Economy and Labour (NCEL)  270 objectives of legislation  272–4 OECD  271, 275–6 online publication  271 ordinary laws  268 organisation of legislation  270–2 Parliament  7, 267–71 Chamber of Deputies  17, 19, 270–1, 273, 275–6 Constitution  270 public policy  274 Senate of the Republic  19, 270–1, 274, 275–6 statute law  268–9 Presidents drafting  275–6 promulgation  271 primary legislation  268–9, 281 definition  268–9 government  267 online publication  271 statute law  268–9 procedure  270–2 public policy  272–4 publication in the Official Gazette  271 quality of legislation  267–70, 280–1 academic scrutiny  267–8 drafting  274–5 first period  276–7 formal quality  267, 274–6 second period  277–8 substantive quality  267, 276–9 teaching  274–5 third and last period  278 quantity of legislation  267, 269, 271, 280–1 regions  8–9, 267, 269–70, 276 regulations  268–70 regulatory impact assessments (RIAs)  273–4, 276–9 Better Regulation  278 Council of State  278 drafting  279 ex ante  272, 277–9 ex post  272–4, 277–9 guidelines  273–4 light RIA  277 objectives  273–4 reports  273–4, 277

simplification  276–8 training  280 secondary legislation  267–8, 271 Senate of the Republic  19, 270–1, 274, 275–6 SMART objectives  273 simplification  271–2, 275–8 soft law  270 sources of law  268–9 training and teaching  268, 274–5, 279–80 transparency  277 Jaruzelski, Wojciech  371, 372 judicial review  7, 29–30 judiciary independence  2–3, 6, 29 Supreme Courts  29 just state, idea of the  6 kangaroo procedures  18 Karpen, U  167 Keynesian economics  479 Kommers, Donald P  210 Kwaśniewski, Aleksander  372, 373 language  30–4 plain language  31, 32–3 uniform terminology  31 Latvia  283–97 Acts of the Saeima (statutes)  286–9 adoption of bills  287 amendments to the Constitution  286–7, 290 annulment actions  7 binding force  284–5, 291 brevity  293 budgets  295 Central Election Commission  290 citizens absolute vetoes  289 initiatives  5 clarity  293 committees  287–9 competences  293 Constitution  286–7, 289–90 amendments  286–7, 290 drafting  294–5 general principles of law  286 inviable core  11 monism  284 Parliament  286 the people  286 referendums  286–7, 289–90 Constitutional Court due process  295 fundamental human rights  284 general principles of law  283 good legislation, principle of  295–6

568  Index normative acts, constitutionality of  294 policy  292 rule of law  7 stakeholders, discussions with  294 consultation  6, 293 context  283 culture  283, 285 customary law  285 democracy  283–7, 294, 296 drafting  30, 291–5 ambiguity, avoidance of  33 Constitution, compliance with  294–5 consultation  293 Draft Legislation Development Manual  291–2 EU law  2, 293 judicial power, laws connected with  294–5 ministries  292 quality  294 readings  287–8 regulatory impact assessments (RIAs)  293–4 repetition, avoidance of  33 same concepts, avoidance of use of different terms for  33 spelling and punctuation marks  293 State Chancellery  291–2 techniques  293 training  296 travaux préparatoires  285 uniform style  293 due process  295 elaboration of text of bills  287 emergency/urgent legislation  289 EU law  2, 283–6 accession  283–4 CJEU, jurisprudence of  284, 285 drafting  293 primacy  286 referendums  289 sovereignty, transfer of  9 evaluation and monitoring  8, 293–6 explanatory studies  296 finalisation of bills  287 first reading  287–8 fundamental human rights  284, 296 general principles of law  283–6, 290–1 goal of the law  291–2 good legislation, principle of  295–6 government’s initiation of legislation  16, 287 hierarchy of norms  283–6 human dignity  4 initiation of legislation  287–8 Central Election Commission  290 electorate, one tenth of the  287 government  16, 287 initiative groups  290

Parliament, no less than five members of  287 parliamentary committees  287 President  287–8 procedure  290 international law  283–5, 291 judiciary independence  294–5 power, laws connected with  294–5 law, meaning of  283–6 legal science  283, 285 local government  285 logical sequence  293 management of legislation  286–91 ministries  292 monism  284 national state  286 natural law  283–4 normative acts  291, 294 normative framework  284–6 organisation of legislation  286–91 other legal instruments, legislation through  290–1 Parliament  285–9 Acts of the Saeima (statutes)  286–9 amendments to Constitution  286–7 dissolution  290 initiation of legislation  287 Rules of Procedure  288 the people  283, 286 policy, determination of the  291–2 positive legal regulation  284–5 precision  293 President  287–9 procedure  286–91 promulgation  287–9 publication  294 quality of legislation  294 readings  287–8 referendums  5–6 compulsory  5, 286–7, 289 Constitution  286–7, 289–90 EU law  289 exclusions  289 quorum  289–90 statutes adopted by referendum  289–90 suspensive vetoes  289 regulations  290–2 regulatory impact assessments (RIAs)  293–4 rule of law  7, 283, 286, 294 second reading  287–8 social impact assessments  296 social state  286 sources of law  283–6 independent sources  285–6 secondary sources  285–6 stakeholders, discussions with  294

Index  569 State Chancellery  291–2 State President  287–9 suspensive vetoes  289 third reading  287–9 training  296 transition to democracy  283 travaux préparatoires  295 treaties and conventions  287, 294 vetoes  289 law and other types of regulation  10–11 learning see teaching and learning professional legislation legality, principle of  31–2 legislative process see procedure legisprudence better legislation  1–2 civil law jurisdictions  34 common law jurisdictions  34 comparative legisprudence  2 constitutions  22 ex ante evaluation  21 ex post evaluation  21 formal legisprudence  30–4 functions of law, changes to  1–2 goal-setting  21 governance  1 legisprudence, definition of  1 management, changes to  1–2 policy-making  1 practical science, as  1, 2 rationality  4 substantial legisjurisprudence  21–3 theoretical science, as  1 Limantė, A  310–11 Lithuania  299–312 adoption of laws  302 amendments  299 Better Regulation  307, 312 Central Electoral Commission  301 citizens’ initiatives  301 civil servants, drafting by  307 clarity  304–5, 308, 312 codes  299–300 committees  302–3 competences  300, 308 Constitution  299–301 initiation of legislation  300–1 people, sovereignty of the  300 primacy  300 referendum  300 Constitutional Court clarity  304–5 competence  300 role  300 rule of law  308

constitutional laws  300, 303–4 consultation  299, 303 context  299 decentralisation  308 decrees  300 drafting  299, 304–7 adoption of draft law  302 Better Regulation  307 citizens’ legislative initiatives  301 civil servants  307 clarity  304–5 committees  302–3 conclusions on draft laws  302 effectiveness  304 EU law  305–6, 309–10 evaluation  308–9 fundamental human rights  304 Legislative Information System, inclusion of drafts on  305 necessity, principle of  304 Parliament, consideration by  302 principles  304, 307–8 proportionality  304 reasons, giving  26 structure  305 submission of drafts  302 training  307 transparency  304–5 working groups  305 effectiveness  304 efficiency  308, 312 emergency/urgent legislation  309–10, 312 entry into force  304 EU law accession  299 directives, transposition of  300, 309–10 drafts  305–6, 309–10 European Law Department  300, 309 harmonisation of laws  299 language  306–7 European Convention on Human Rights, compliance with  305–6 evaluation and monitoring  29, 307–12 ad hoc working groups  29 ex ante  299, 308–12 ex post  299, 308–12 expert groups  29 Monitoring of Legal Regulation  310 Supreme Audit Institution  311 explanatory notes  309 fundamental human rights  304–6, 307–8 government ministries  302, 308 orders/acts  300 harmonisation of laws  299

570  Index hierarchy of norms  300 initiation of legislation  16, 300–2 citizens’ legislative initiatives  301 Constitution  300–1 Parliament  301 President  301 prioritisation  309 public or individuals  301–2 screening  311 voting  303 working groups  305 international law  300 language  299, 306–7 Legislative Information System  301, 305, 312 life cycle of legislation  300–7 local laws  300 management of legislation  300–7 ministries  302, 308 monism  300 necessity, principle of  304, 307–8, 311 objectives of draft law  302 orders/acts  300 ordinary laws  303–4 organisation of legislation  300–7 overview of the legal system  299–300 Parliament Committee on Legal Affairs  302 drafting  302 initiation of legislation  301 laws  300 parliamentary reservation, principle of  6 policy  301–2 reconsideration, referral back for  304 unicameral, as  299, 300 people, sovereignty of the  300 policy  25, 299, 301–2 President citizens’ legislative initiatives  301 decrees  300 initiation of legislation  301 policy  301–2 signatures  304 principles  304, 307–8 prioritisation  309 procedure  302–4 promulgation  304 proportionality  304, 307, 311 publication  304 quality of legislation  299 quantity of legislation  312 reasons, giving  26 reconsideration, referrals back for  304 references, use of  299 referendums  6, 300, 304 reforms  299

Register of Legal Acts  302, 304, 311 regulation acts  300 Better Regulation  307, 312 ministries  308 Monitoring of Legal Regulation  310 regulatory impact assessments (RIAs)  299, 309–12 resolutions  300 rule of law  308 statutory law  300, 302 structure of legislation  305 Supreme Audit Institution  311 training  307 transparency  304–5, 308, 309–10, 312 treaties and conventions  300 unicameral, Lithuania as  299, 300 voting  303 working groups  305 local authorities  13 Luxembourg  313–24 1815, as a state since  313–14 adoption of laws  317, 323 amendments Constitution  314, 318–20 Council of State  317–19 annulment of measures  319, 321 citizens’ initiatives, proposal for  317 committees  317, 320 Constitution amendments  314, 318–20 citizens’ initiatives, proposal for  317 draft legislation, compliance of  316 Grand Ducal regulations  315 Grand Duke, restrictions on  313 hierarchy of laws  314 initiation of amendments  318 intermediate category of legislation between Constitution and ordinary law  12 publication of judgments  314 secondary legislation  315 sources  314 values and policy goals  320–1 Venice Commission, submission of draft to  319–20 Constitutional Court  29, 314, 319, 321 constitutional monarchy, as  313 consultation  313, 316, 319 context  313 Council of Europe  314 Council of State  28, 315–21 amendments  317–19 bills  317 Constitution, amendments to  319 consultation  316, 319

Index  571 drafting  316, 321 EU law  320 opinions  316, 317, 319–21 regulations, adoption of  316 democracy  313 deputies of the opposition, law proposals from  317 drafting  30, 321–2 Belgian models  321 Constitution, compliance with  316 Council of State  316, 321 French models  321 Grand Ducal regulations  320 ministries  317, 320, 321 rules  321–2 training  324 Venice Commission, submission of draft of Constitution to  319–20 electronic form, publication in  313 ECtHR, jurisprudence of  314 EU law  313–15 application  320 CJEU, jurisprudence of  315 Council of State  320 directives, transposition of  320 founding member, as  314 general principles  314 implementation  320 Legilux database  315 primacy  314 regulations  315 evaluation and monitoring of legislation  321 explanatory memorandum  317 financial impact assessments  317 fundamental human rights  314, 320–1 general principles of EU law  314 government  16, 315–21 Council of State  28, 315–21 Grand Duke  315–16 initiation of legislation  313, 317 regulations  320 Grand Duke government, as head of  315–16 head of state, as  315–16 initiation of legislation  315, 317, 318 ministers, appointment of  316 Prime Minister, appointment of  316 promulgation  315, 318, 322 regulations  315, 320 restrictions  313 signature  318, 320, 322 hierarchy of laws  13, 314–15, 319, 321 initiation of legislation Chamber of Deputies  317, 318 Constitution, amendments to  318

deputies of the opposition, law proposals from  317 government  313, 317 Grand Duke  315, 317, 318 professional chambers  317 institutions  315–16 intermediate category of legislation between Constitution and ordinary law  12 international law  313 judiciary  319 language  316, 321, 322, 323–4 law, meaning of  314–15 law proposals  317 Legilux database  313, 315, 318, 322–3 ministers appointment by Grand Duke  316 counter-signatures to laws  318 drafting  317, 320, 321 regulations  320 Official Journal, publication in  313, 321–2 Ombudsman, establishment of an  321 opinions  316, 317, 319, 321 ordinary laws  12, 314 ordinary legislative procedure  317–18 organic laws  12 organisation of legislation  315–20 Parliament (Chamber of Deputies)  313, 315–16 adoption of laws  317 directives, implementation of EU  320 initiation of legislation  317, 318 law proposals  317 voting  317–18 policy  320–1 President  317 Prime Minister appointment by Grand Duke  316 publication  322 procedure  316–20 amendments to the Constitution  318–20 government or ministerial regulations  320 Grand Ducal regulations  320 ordinary legislative procedure  317–18 professional chambers  315, 316 consultation  313 initiation of legislation  317 opinions  316, 317, 319, 321 promulgation  315, 318, 322 publication  313–14, 321–2 referendums  318–19 regulatory impact assessments (RIAs)  321 rule of law  313–14, 320 secondary legislation  315 social rights  321 sources of law  314 teaching legisprudence  323–4

572  Index techniques  321–3 training  324 values  320–1 Venice Commission, submission of draft to  319–20 voting  317–18 Malta  325–35 amendments to the Constitution  326–7, 331 Attorney General  333–4 British period  325–6, 334–5 by-laws  331 Civil Code  325 civil law  325–6 Code of Organization and Civil Procedure (COCP)  325 codification  325, 334–5 Commercial Code  325 committees  333 common law  325–6, 334 Constitution amendments  326–7, 331 Attorney General  333 British model  325, 326–7, 334–5 EU law, conflicts with  327–9, 331 European Convention on Human Rights, conflicts with  329 primacy  326–7, 331 constitutional court  334 context  325–6 drafting Attorney General, Office of  334 notaries public  332–3 publication  332 requirements  331–2 techniques  331–2 training  332–4 dualism  327 English law, influence of  325–7, 334–5 EU law accession  326, 327–8, 330 civil law/common law mixed system  325–6 CJEU, jurisprudence of  329–30 conflicts with EU law  327–31 Constitution  327–9, 331 direct effect  329 directives, transposition of  326 fundamental human rights  330–1 implementation  326, 329–30 Official Journal  330 preliminary references  330 primacy  327–30 shared sovereignty  329 withdrawal  331

European Convention on Human Rights  327, 329, 334–5 first reading  333 fundamental human rights  327, 329–31, 334–5 hierarchy of provisions  326–31 Legal Notices  331 legal profession  332–4 Malta Law Commission  332 management of legislation  331–2 Napoleonic Code  334 notaries public  332–3 ordinances  333 organisation of legislation  331–2 Parliament (House of Representatives) Constitution, amendments to  326 English law, influence of  334–5 primary legislation  326, 331 precedent  325 President consent  326 removal  326 signature  331 primary legislation  326, 331–2 procedure  331–2, 333 publication  331–2 report stage  333 second reading  333 secondary legislation  331 sources of law  325 structure of legislation  331–2 third reading  333 training  332–4 treaties and conventions  329 unicameral system, as  326 management of legislation  1–2 Martin, S  256 media  16, 28 methodology of legislation  21 ministries, initiation of legislation by  17 minorities, protection of  11 monism  21 monitoring of legislation see evaluation and monitoring of legislation Montesquieu, Charles de  24, 72 multi-layered systems, legislation in  2, 3, 8–9 necessity, principle of  25, 31 Netherlands  337–51 abbreviations, avoidance of  33 Acts of Parliament  10, 337–44 drafting  339 hierarchy of norms  339 procedure  341–4 restrictions  338 administrative bodies, policy rules of  340–1

Index  573 adoption of legislation  343–4 advisory opinions  342 amendments  19, 343, 340 by-laws  13 Cabinet programme  345–6 clarity  347 committees  342–3 conciseness  347 Constitution  10, 11, 338–40 1983  11 Acts of Parliament  338–9 conformity  345 delegation  340 fundamental human rights  340 procedure  338 Senate  343 substance of legislation  338 constitutional law  11 consultation  341–2, 346 context  337 Council of Ministers drafting  345–6 quality of legislation  342, 345–6 reviews  345–6 Council of State  338–9 advisory opinions  342 drafting  338 effectiveness and efficiency safeguards  346 procedure  342 publication  342 quality of legislation  339, 346 royal decrees  338 decentralised unitary state, as  8, 337 decrees  10, 338–42 delegation  339–40 deregulation  18–19, 344 drafting  31, 338–9, 344–5 abbreviations, avoidance of  33 ambiguity, avoidance of  33 Council of Ministers  345–6 effectiveness and efficiency safeguards  346 guidelines  344–5, 347–8, 350 harmonisation of techniques  347–8 Integrated Assessment Framework  344–5 Internet consultation  346 ministries  339, 346 preparatory stage  341–2 publication  341–2 quality safeguards  345–6 repetition, avoidance of  33 same concepts, avoidance of use of different terms for  33 secondary legislation  339 training  348, 350–1

effectiveness and efficiency safeguards  346, 348, 350 elections  19 electronic consultation  341–2, 346 entry into force  343–4 EU law  338, 345, 350 European Convention on Human Rights  338 evaluation and monitoring of legislation  17, 348–50 First Chamber (Senate)  338–9 amendments  343 assessment  342–3 Cabinet Programme  346 consent  338 constitutional aspects, assessment of  343 rejection of bills  343 fundamental human rights  338, 340–1 gender-neutrality  347 government  16, 345–6 Cabinet Programme  345–6 Council of Ministers  342, 345–6 Council of State  338–9, 342, 346 drafting  347 initiation of legislation  339, 345 Second Chamber  345 harmonisation of legislative technique  347–8 hierarchy of norms  10, 338–40 House of Representatives  343, 345, 348 initiation of legislation  17, 339, 345–6 Integrated Assessment Framework  344–5 judicial review  338 king, signature of legislation by  339, 343 language  347 Legislation in Perspective  344 ministerial decrees (third level)  10, 339–42 ministries drafting  346 effectiveness and efficiency safeguards  346 general legislative policy  344 preparatory stage  341 quality of legislation  338 reviews  17, 349 secondary legislation  339 municipalities and provinces  337 objectives  344–6 Official Journal, publication in  343 other types of law-making  340–1 Parliament  338–9 assessment  342–3 Cabinet Programme  346 Council of Ministers  342 evaluation  349–50 House of Representatives  343, 345, 348 initiation of legislation  339 Senate  338–9, 342–3, 346

574  Index policy  25, 344–6 experiments  350 general legislative policy  344–5 harmonisation of legislative technique  347 Legislation in Perspective  344 periodic policy evaluations  349 policy rules  340–1 preparatory stage  341–2 procedure  338, 341–4 publication  341–4 quality of legislation  338–9, 341, 344–9 Council of Ministers  342, 345–6 Council of State  339, 346 instrumental  346 ministries  338 safeguards  345–6 quasi-non-government organisations, legislative powers of  340, 348–9 regulatory impact assessments (RIAs)  27 reviews of legislation  17, 345–6, 349 royal decrees  10, 338–42 Second Chamber (House of Representatives)  19, 343, 345, 348 secondary legislation (royal decrees)  10, 338–43 Senate  338–9, 342–3, 346 structure  347 terminology  347–8 training  348, 350–1 treaties and conventions  11, 338 types of legislation  338–41 unitary state, as  337 New Public Management (NPM), instruments of  24 Norway  353–67 advisory legal opinions  359 amendments to statutes  355–8, 360 approval of legislation  358 Auditor-General, Officer of the  365 Better Regulation Council  364 civil society  355, 359 committees  29, 355–6, 357–8, 361 consensus-oriented cultures, debates in  18 Constitution  353–4, 357–9, 365–6 constitutional framework  353–5 consultation  356–8, 359, 364 context  353 cost-benefit analysis  362, 363–4 Council of State  353–4, 358 delegation  354–5 directorates  354 drafting  356, 360–1, 366 EEA (European Economic Area)  11, 354, 359 electronic publication  360 EU, cooperation with  365

European Convention on Human Rights  359 evaluation and monitoring of legislation  29, 359, 361–6 ex ante  359, 362 ex post  362, 364 Parliament  364–5 secondary legislation  365, 366 Supreme Court  359 experimental legislation  365–6 first readings  357 formal requirements  360–1 fundamental human rights  11, 354, 359 government Council of State  353–4, 358 initiation of legislation  355 guidelines  354 hierarchy of norms  353–5 independent advisory boards  27 information on legislation  359–60 initiation of legislation  17, 355, 357–8 judicial previews  359 king  353–4, 358 language  360–1, 366 law committees  355–6, 361 Legal Data Foundation  360 legisprudence in education  366 local government  354, 358 ministries  354, 355–9, 361, 366 OECD  363–4 Official Legal Gazette, publication in  359–60 Official Norwegian Reports (NOUs)  356–7, 358–9, 362 organic laws  11 online publication  360 Parliament  353, 357–9, 364–5 amendments to bills  357–8 decision-making process  357–8 initiation of legislation  355 preparatory works  358–9 Sami Parliament  357 policy  25, 355 preparatory works  358–9, 366 prime minister  354 private entities, delegation of legislative power to  354 procedure  355–9, 361 publication  359–60 quality of legislation  361 regulatory impact assessments (RIAs)  362–5 reports  356–7, 358–9, 362 reviews  359 Sami Parliament  357 second readings  357 secondary legislation  353–4, 358–9, 361, 365, 366 sources of law  358–9

Index  575 standing committees  357–8 statutory legislation  353–4, 359–61, 366 structure of legislation  353–5, 360–1 Supreme Court, reviews by  359 teaching  366 techniques  360–1 temporary legislation  365–6 third readings  357 unicameral, as  17 objectives of legislation  2, 21–30 Orbán, Viktor  233, 242 ordinances  12–13 organic laws  11–12 organisation of legislation  21 parliaments adoption of the law  15, 17–19 agendas  16 bicameral countries  6, 17–18 debates  15, 17–19 democracies  3 drafting  28 enactment and promulgation, post-parliamentary phase of  15–16, 19–20 evaluation and monitoring of legislation  29 government  7 initiation of legislation by deputies or political groups  16 majoritarian competitive democracies  7 MPs, initiation of legislation  16 Parliamentary Research Services  28 parliamentary reservation, principle of  6 principles  4 rationalised parliamentarism  18 referendums  5, 20 rule of law  6–7 second chambers  17–19, 21 secondary legislation  13 unicameral countries  6, 17–19 participation better legislation  2 citizens’ assemblies  5, 20 effectiveness  541–2 initiation of legislation  16 populism  242, 542 quality of legislation  28 regulation  541–2 representative democracy  5 soft law  26 trust in the state  542 plebiscites  20 Poland  369–83 amendments to legislation  375–7 Better Regulation  379–80

bicameral system, as  369 budget bills  375–6 by-laws  380 centralisation  382 citizens’ initiatives  375 Civic Platform party (PO)  374, 376, 377–8 committees  376, 381 Communist Party  370–3 competences, restrictions on  19 Constitution 1997  369, 372, 373 initiation of legislation  375 length of constitution  11 list of laws  10 sources of law  369–70 weak legitimation  369 Constitutional Court  372–4 Communist Party  373 ex ante evaluation  373 independence of the judiciary  373 legal acts, control over  372 political appointments  373–4 President  370, 377 consultation  380–1 context  369 corporate representations of interests  6 Council of Ministers  375, 378, 379, 380, 381 decentralisation  8, 369, 378, 382 drafting  31, 379–82 guidelines  380 ministers  17, 381 Parliament by governing party, introduction of bills to  380 Prime Minister  380, 382 reform  380 teaching  381–2 electoral behaviour at low level of accountability  377 EU law, consistency of legislation with  375 evaluation and monitoring of legislation  7, 373 first readings  375–6 good legislation centre  17 government  16, 370–1, 379–82 centralisation  382 Communist Party  370–1 Council of Ministers  375, 378, 379, 380, 381 drafting  381 formation  378 law-making  379–82 policy-making, institutional aspects of  379–82 political parties, competition between  378 President  372 hierarchy of provisions  369–70 initiation of legislation  16, 17, 369–70, 375, 382 100,000 citizens  375

576  Index blocking  369 budget bills  375 competing institutions  369 Constitution  375 Council of Ministers  375 President  16, 370, 375 institutional framework of law-making process  375–7 institutional ineffectiveness as result of path-dependence  374–5 inter-party conflicts  377 judiciary, independence of the  373 Law and Justice party (PiS)  374, 376, 377–8, 380 law-making as a a political process  377–9 legal acts (parliamentary bills)  369–70, 375 legislative players  369–70 legislative staff and training  381–2 list of laws  10 ministerial orders  370 ministries  17, 378–81 Parliament  19, 369–77 drafting  380 electoral campaigns  377 legal acts  369–70 political parties  382 president  371–2 resolutions  369–70 Speaker, appointment of  376 Permanent Ministerial Committee  381 planning  379–80 policy  379–82 political appointments  373–4 political competition  377–9 political process, law-making as a a  377–9 president  371–2, 374–5 conflicts over prerogatives  371–2 Constitutional Court, reviews by  370, 377 government, formation of  372 initiation of legislation  17, 370, 375 instability  377 Parliament, control of  371 political parties  377–9 powers  370–2 semi-presidential system, Poland as  3 separation of powers  372 signature  377 vetoes  370–2, 377, 378–9, 382 Prime Minister  379, 380, 382 procedure  375–7 regulatory impact assessments (RIAs)  379–80 second readings  376 Sejm (lower chamber)  369–70, 373, 375–7 Senat (upper chamber)  19, 369–70, 375–7 separation of powers  372 Solidarity  370–4

sources of law  369–70 Speaker, politicisation of role of  375–6 teaching  381–2 third readings  376 transition to democracy  369, 370–5 treaties and conventions  370 vetoes  19, 370–2, 377, 378–9, 382 policy  1, 13, 22, 25–6, 29 political parties, organisation, functioning and financing of  11 populism  242, 542 Portugal  385–97 administrative regulations  386, 389–90 amendments to the Constitution  387 approval of laws  391–3 Authorisation Law  388 Azores and Maderia, autonomous regions of  385–6, 389–91 administrative regulations  390 approval of laws  391 initiation of legislation  386 Better Regulation  25, 395–7 citizens’ initiatives  391 committees  391–2 competences  385, 387–9 concordance democracies  28 Constitution  386–7 1976  386 amendments  387 constitutional laws, compliance of  386 EU law  390 primacy  386, 390 principles  22 regional legislative decrees  389 treaties and conventions  390 Constitutional Court compliance with Constitution  386, 390 President  28, 385, 392–3 regional legislative decrees  393 constitutional laws  386 consumer protection  22 contents of the law  393 context  385 Council of Ministers  392, 395–7 decentralisation  8, 385 decree-laws  385, 386, 387–8, 392–3, 396 democracy  385 drafting  394–5 ambiguity, avoidance of  33 constitutionality  19 Council of Ministers  394–5 imprecise references to other legal texts  33 Legislar Melhor programme  25, 385

Index  577 Legística handbook  394–5 ministries  394 Parliament  394 training  394 elections  387 electronic publication  395–7 environmental protection  22 equality  385 EU law  22, 386, 390, 396 evaluation/reviews  392 fundamental human rights  385, 393 government  385–8 administrative regulations  389–90 Council of Ministers  392, 395–7 decree-laws  385, 386, 387–8, 392–3, 396 dismissal  385 initiation of legislation  385–6, 388, 389–90 Prime Minister, appointment of  386 heads of state, suspensive right of  19 hierarchy of laws  390 initiation of legislation administrative regulations  389–90 Azores and Maderia, autonomous regions of  386 citizens  391 government  385–6, 388, 389–90 language  396 laws (Lei)  12, 386, 387–8, 390 legal system  385–6 legality, principle of  31 Legislar Melhor programme  25, 385, 395 Legística handbook  394–5 ministries  394 municipalities  385 National Gazette, publication in the  392, 395–6 organic laws  11, 390 parishes  385 Parliament  385–9 approval of laws  391–2 Authorisation Law  388 decree-laws  388 dissolution  385 drafting  394 exclusive competences  387–9 laws  386, 387–8 President  385 policy  13 President competences  385 Constitutional Court, review of constitutionality of bills by  28, 385, 392–3 dissolution of Parliament  385 elections  387 government, dismissal of  385 initiation of legislation  385–6 Prime Minister, appointment of  386

promulgation  385, 392–3 veto, right of  385, 392 Prime Minister, appointment of  386 procedure  391–3 promulgation  385, 392–3 proportionality  385 publication  392, 395–7 quantity of legislation  386, 395 regions  8–9, 385–6, 389–91, 393 approval  393 Constitution  389 Constitutional Court, challenges before the  393 legislative decrees  386, 389, 393 signature  393 regulatory impact assessments (RIAs)  28, 396 Revoga+ programme  395 rule of law  385, 390 separation of powers  385 SIMPLEGIS programme  25, 385, 395 training  394 treaties and conventions  390 types of laws  387–9 veto, right of  385, 392 positivism  21 precision  31 preparatory phase  15–17 presidential systems  7, 16 principles  3–4 procedure  15–21 closure, guillotine or kangaroo procedures  18 constitutions  15, 21 debate and adoption of the law, parliamentary phase of  15, 17–19 enactment and promulgation, post-parliamentary phase of  15–16, 19–20 EU law  15 homogeneity of law, principle of  15 initiation of legislation  16–17 parliamentary phase  15, 17–19 pre-parliamentary phase  16 preparatory phase  15–17 regulatory cycle, legislation in the  15–16 regulatory impact assessments (RIAs)  27–8 separation of powers  15 special categories of law  20–1 supranationalism  15 promulgation see enactment and promulgation proportional representation  5 proportionality  2, 6, 24, 26, 29, 31 public participation see participation public service  12 publication see electronic publication Purnhagen, K  61

578  Index quality of legislation  21–3, 28–30 see also better legislation; regulatory impact assessments (RIAs) deregulation  22 drafting  23, 26–8, 31 economic impacts  23, 24 goals and effects, mixture of  22 good legislation  23, 25 instrumentalism  22 legal impacts  23 lobbying by stakeholders  28 managerial criteria  24 media  28 ministries, reviews in  17 monitoring (ex post)  22–3 OECD countries  1 the people  29 purpose-oriented interpretation  22 quantity of laws  23, 25 social impacts  23 substantial legisjurisprudence  21–3 quantity of legislation  21–5, 27 rationality  4, 13, 18, 24–5 reasons, giving  26 Rechtsstaat see rule of law/Rechtsstaat referenda binding referenda  20 constitutions, amendment or replacement of  20 consultative referenda  6, 20 democratic legitimacy  11 electoral reform  5 facultative referenda  5, 20 heads of state, proposals by  5, 20 obligatory referenda  5, 6, 20 organic laws  11 parliaments, proposals by  5, 20 people’s initiatives  5, 20 plebiscites  20 positive referenda  21 same-sex marriages  5 REFIT programme (EU)  25 regions  8–9 regulation  1–2, 10–11 see also regulatory impact assessments (RIAs) Better Regulation  1, 4, 541 Better Regulation Package (EU)  25 citizen participation  541–2 cycle  15–16 deregulation  22, 24–5 globalisation  10 hierarchy of laws  10 law and other types of regulation  10–11 Regulatory Watch Europe  27 self-regulation  13

regulatory impact assessments (RIAs)  25–6 better law-making  28 concordance democracies  28 constitutional courts  27, 28 dimensions of impacts  27 drafts, quality of  26–8 EU  26–8 ex ante evaluation  26–8, 541 ex post evaluation  22, 541 final texts of bills  17 independent advisory boards  27 non-compliance, consequences of  27 OECD  26 organisation  27–8 parliaments, assessment of drafts on own initiative of  28 procedures  27–8 qualitative methods  27–8 quantitative methods  27 Regulatory Scrutiny Board (RSB) (European Commission)  27–8 Regulatory Watch Europe  27 secondary legislation, decrease in  27 technological developments  26–7 repetition, avoidance of  33–4 reviews of legislation  17 see also evaluation and monitoring of legislation RIAs see regulatory impact assessments (RIAs) Romania  399–414 amendments  399–400, 403–4, 406–7 analogy  400 autonomous administrative authorities, heads of  403 Better Regulation  408 bicameral system  7, 400, 405–6 Cabinet of Ministers  401 censure, motion of  407 Chamber of Deputies  400–1, 404–6, 408 citizens’ initiatives  400, 404 Codes  409 committees  406 Constitution  399–400, 402–4, 407, 412–13 1991  399 amendments  399–400, 403–4 drafting  412–13 emergency laws  402 ordinary laws, compatibility of  401, 412 primacy  399–400 treaties and conventions  403–4 Constitutional Court bicameralism  406 Constitution, compatibility with the  407, 412–13 draft acts  409 emergency laws  402 regulatory impact assessments (RIAs)  28

Index  579 constitutional laws  400, 402 consultation  20 context  399 customs  400 democracy  399 disuse, legislation which has fallen into  409 drafting  31, 412–13 Better Regulation  408 Chamber of Deputies  406 Constitution, compatibility with the  412–13 Constitutional Court  409 disuse, legislation which has fallen into  409 EU law  411–12 European Convention on Human Rights  413 imbalances  399 integration  409 Legislative Council  406 legislative packages  407 principles  409 reasons  408 redundancy, avoiding  409 regulatory impact assessments (RIAs)  411 Senate  406 systemisation  409, 412 techniques  410, 412–13 training  412–13 transparency  409 electronic publication  410 emergency/urgent legislation  13, 401–3 EU law  410–12 accession  404 Chamber of Deputies  404 directives, transposition of  404, 413 drafting  411–12 integration  399 primacy  404 Senate  404 European Convention on Human Rights  409, 413 evaluation and monitoring of legislation  29 first readings  405 fundamental human rights  399, 409, 412–13 German law, influence of  2 government assumption of responsibility  406 Cabinet of Ministers  401 censure, motion of  407 initiation of legislation  400, 402–3, 404 ordinances  401–2 hierarchy of provisions  399–404 initiation of legislation autonomous administrative authorities, heads of  403 citizens  400, 404 Constitution, amendment of  400 deputies  400, 404

government  400, 402–3, 404 ministers  403 President  400 senators  400, 404 specialised government agencies  403 stakeholders  16 international law  403–4 judicial decisions  400 language  410 legal certainty  403 legal intent  408–9 legal scholarship  400 legality, principle of  403 Legislative Council  406 legislative packages  407 local administrative authorities  403 management of legislation  404–8 ministers  403 Official Gazette, publication in  401, 408, 410 ordinances  401–2 ordinary laws  400, 401, 412 organic laws  11, 400–1 organisation of legislation  404–8 organic laws  400–1, 404, 407 Parliament  399–401 Chamber of Deputies  400–1, 404–6, 408 ordinances  401 quality of legislation  407–8 Senate  400–1, 404–6, 408 transparency of proceedings  409 policy, developing legal  408–9 precedent  400 predictability  403 President Constitution, amendment of  400 initiation of legislation  400 promulgation  408 reconsideration, return to Parliament for  408 referendums  401 principles  409 procedure  404–8 promulgation  408 publication  401, 408, 410 quality of legislation  399, 403, 407–8 reasons  408 reconsideration  408 redundancy, avoidance of  409 referendums  5, 20, 400–1 regulatory impact assessments (RIAs)  26, 28, 410–12 drafting  411 ex ante  410–12 ex post  410–12 rule of law  399, 402

580  Index Senate  400–1, 404–6, 408 Chamber of Deputies  405–6 Constitution, amendment of  400 drafting  406 EU law  404 first notified chambers  404–5 organic laws  400–1 reconsideration, return for  408 separation of powers  402 soft law  404 sources of law  400 specialised government agencies  403 stability  399, 403 systemisation  409, 412 training  412–13 transition to democracy  399 transparency  409 treaties and conventions  403–4 vetoes  18 rule of law/Rechtsstaat  6–7, 22 arbitrary use of government power  6 constitutional courts  7 constitutional state, law-making in the  2–4, 6–7 due process  6 emergency/urgent legislation  13 EU law  2, 4, 6 fundamental human rights, regulations setting limits on  6 government  6–7 judiciary, independence of the  6 just state, idea of the  6 legislature  6–7 liberal democracies based on rule of law  4–5 parliamentarian systems  7 presidential systems  7 proportionality  6 secondary legislation  13 separation of powers  6 statutory laws  12 Scandinavian legal realism  22 second readings  17 secondary laws  10, 12–13, 27 separation of powers  2–3, 6, 13, 15 simplicity  31, 33–4 Slovakia  415–32 amendments to legislation  418, 424–5 Annual Legislative Plan  418–19 Austrian legal tradition  415 central state administrative bodies  416, 418 Collection of Laws of the Slovak Republic  416, 426 committees  424 Constitution constitutional laws, difference from  10 EU law  427–8, 430

government  416 Parliament  423–4 primacy  416 secondary legislation  416 Constitutional Court  426–7 constitutional laws  10, 416, 423–4 context  415 Czechoslovakia, establishment of  415 delegation  430–1 drafting amendments  424–5 central state administrative bodies  416, 418 compulsory commentators  420–1 Constitutional Court  426 EU law  2, 422, 438–9 Government Office  423 handbook  417 Interdepartmental Comments Procedure  416, 419–22 Legislative Council  17, 422–3 legislative intent  419 legislative portal  419 National Council  423–5 preliminary information, publication of  419–20 publication  416, 418, 420–1 training  417–18 electronic publication  416, 418, 420, 426 entry into force  426 EU law  427–9 accession  415, 421–2 approximation government regulations  430–2 Commission for the Compatibility of Slovak Law With European Law  427 Constitution  427–8, 430 constitutional delegation  430–1 content of legislation, impact on  429 Copenhagen Criteria  430 directives, transposition of  416, 421–2, 428 drafting  2, 422, 428–9 European Agreement on Association  415 Government Office  429 harmonisation of laws  430 hierarchy of laws  431 impact of EU membership  427–9 integration  427 law-making activity, effect on  429 legislative technique  428 National Council  427, 430–1 non-fulfilment of obligations  421–2 Official Journal, publication in the  428 primacy  14, 431–2

Index  581 referendum  415 secondary law  428 technical character, legal norms with a  429 transposition into Slovak law  416, 421–2, 428–32 first readings  424 Framework Legislative Plan  418–19 fundamental human rights  421 government  416, 418–19 Constitution  416 Government Office  423 Legislative Council  422–3 secondary legislation  11 harmonisation of laws  11 hierarchy of legal norms  10, 416–17, 431 higher territorial units, generally binding regulations of  10, 416, 421 Hungarian common law, influence of  415 initiation of legislation  17, 426 institutions  418–27 Interdepartmental Comments Procedure  416, 419–22 JASPI online system  426 language  425–6, 428 legal framework for law-making  418–27 Legislative Council  422–3 legislative intent  419 legislative planning  418–19 legislative portal  419–22 ministries  17, 416, 422, 429 municipal units, generally binding regulations of  10, 416 national minorities, translation into languages of  426 Parliament (National Council)  10, 423–5 Commission for the Compatibility of Slovak Law With European Law  427 Constitution, approval of  423–4 drafting  423–5 laws  416 President  425 primary legislation  10, 416 process  423–5 President  425 primary legislation  11, 416 Prime Minister  418, 423 procedure  419, 423–5 promulgation  416, 425–6 publication  416, 418–21, 426, 428 quality of legislation  1, 422 referendums  415, 426–7 Roman law  415 second readings  424–5 secondary legislation  11, 416–17, 428 semi-primary laws  11, 417

Slov-Lex public administration information system  419, 426 structure of legislation  427 third readings  424–5 training and education of law-making officials  417–18 transition to democracy  415 treaties and conventions  5422 Slovenia  433–51 accountability  442 Austrian law, influence of  433, 450 Better Regulation  433–4, 437, 442, 450 codification  442 concordance democracies  28 Constitution 1991  433, 450 drafting  450 EU law  444 initiation of legislation  437 National Assembly  437 sources of law  434 statutory laws  435 Constitutional Court  20, 434–5, 442 consultation  445 context  433 corporate representations of interests  6 drafting accountability  442 Constitution  450 effects  441 government  437 goals  441 Legal Drafting Guidelines  443–4, 450 techniques  443–4 training  449–50 due process  435 emergency/urgent legislation  445 EU law accession  433 codification  442 Constitution  444 General Data Protection Regulation  441 harmonisation of laws  437 sources of law  434 sovereignty, transfer of  9 evaluation and monitoring of legislation  29, 438, 442–3 formalism  450 freedom of information  445 general or legislative acts  435 German law, influence of  433 government  433–4 drafting  437 Government Office for Legislation  443 Government Secretariat-General  444

582  Index Juristen Monopol  437 legislative training  449 secondary legislation  434 hierarchy of laws  434–7 hybrid acts  435 individual decisions  435 initiation of legislation  437 international organisations, transfer of sovereignty to  436 judicial review  434, 435, 442 Juristen Monopol  437 legal certainty  443 legislation and regulation, distinction between  435 legislative acts  435 meta-regulation  433, 437–8, 443, 445–7, 450 ministries  441–2, 447 National Assembly  433–4, 436–8, 441, 443, 445, 450 National Council  437–8, 443–7, 450 objectives of legislation  441–3 OECD  433, 443, 445 organisation of legislation  437–41 Parliament (National Assembly)  433–4, 436–8, 441, 443, 445, 450 Constitution, amendments to the  436 Legislative and Legal Service  441 National Assembly  433–4, 436–8, 441, 443, 445, 450 National Council  437–8, 443–7, 450 primary legislation  434 Rules of Procedure (RNA)  434, 437–8, 441, 443, 445, 450 urgent procedure  440–1 policy  13 primary law  434–5, 437–40, 442 procedure  434, 437–41, 443, 445, 450 proportionality  445 public policy  435 quality of legislation  22 quantity of legislation  437 reasons, giving  442 Rechtsstaat  433 regulation  437 regulatory impact assessments (RIAs)  26, 28, 434, 441–3, 445–7 concordance democracies  28 ex post  441, 442 freedom of information  445 Handbook on Regulatory and Policy Impact Assessment  445 number of assessments  446 OECD  445 stakeholder engagement  446 urgent procedure  445

Resolution on Legislative Regulation (RLR)  433–4, 442–7, 450 rule of law  433, 436, 450 secondary legislation  433–5, 437–40, 442, 445 smart legislation  434, 438, 440, 444, 450 sources of law  434 stakeholders  441–2, 446 statutory laws  435 teaching legisprudence and legislative training  447–50 training  449–50 transparency  445 treaties and conventions  445 types of legislation  435–6 unicameral, as  17 university education  447–8 SMART  25–6 social impact of legislation  22–3 socio-economic divisions  8 soft law  13–14, 26 sources of law  13–14 sovereign powers, transfer of  21 Spain  453–66 amendments of legislation  454–5, 464 Annual Regulatory Plan  461–2 Austrian law, influence of  464 Autonomous Regions  6, 9, 454–8 Constitution  457 decree-laws  456 drafting guidelines  463 initiation of legislation  455, 458 Statutes of Autonomy  455–6 Better Regulation  461 bicameral system, as  453, 457 budgets  456, 463, 465 Civil War  454 committees  18 competences  19, 457–60 Congress of Deputies (Lower House)  453, 457–9 consensus  453–4 Constitution 1978  453–4 amendments  454–5 Autonomous Regions  457 consensus  453–4 decentralisation  454 drafting  457 EU law  457 framework and conditioner, as  453–4 government  460 mandates  460 organic laws  455 Parliament  457 President  460 principles  460

Index  583 referendums  455 secondary legislation  456 statutory laws  455 treaties and conventions  457 vagueness  454 Constitutional Court  454, 456, 465 context  453 decentralisation  453–4 decree-laws  456 delegation  456 drafting  31, 453, 459–64 Autonomous Regions  463 Constitution  457 Guidelines for Regulatory Technique  459, 463–4 initiation of legislation  460–1 innovations  462 ministries  460–2 principles of good regulation  459 public enquiries  462 technique  462–3 democracy  459, 463 elections  457–8 electronic publication  460 emergency/urgent legislation  456 entry into force  457 EU law accession  454–5 Better Regulation  461 Constitution  457 regulatory impact assessments (RIAs)  465 treaties and conventions  457 France, Constitution of  453, 455 fundamental human rights  453–4 German law, influence of  453, 463 government Constitution  460 initiation of legislation  457 hierarchy of laws  13, 455 initiation of legislation  457–61 Autonomous Regions  455, 458 drafting  460–1 government  457 parliamentary groups  16, 459 the people  20, 459 procedure  458 innovations  462 instruments of legislation  460–4 Italian law, influence of  453, 463 King Head of State, as  454, 460 President  454 language  464 legal security  465 methodology  460–4 military dictatorship  454

ministers  460, 461–2 nationalism  453–4 nationalities, self-government of  454 objectives of legislation  460–4 OECD  461 ordinary laws  456 organic laws  11, 455–7 organisation of legislation  457–60 Parliament (Cortes Generales) Congress of Deputies (Lower House)  453, 457–9 Constitution  457 delegation  456 groups  459 initiation of legislation  16, 455 legislative decrees  456 procedure  459–60 Senate (Upper House)  453–4, 457–60 parliamentary monarchy, establishment of  453, 454 the people  459 planning  453 policy  453–4, 460–4 political pluralism  4 President  454, 460, 462 principles  460 procedure  453, 457–60 promulgation  460 proportional representation  457–8 public enquiries  462 publication  460 quality of legislation  461, 462–3 referendums  455 regions  8–9, 454 regulation  453, 459 regulatory impact assessments (RIAs)  461–2, 464–5 rule of law  453 secondary laws  456 Senate (Upper House)  453–4, 457–60 separation of powers  15, 453 stability  456 standing orders  464 statutory laws  455 structure of legislation  462–4 transparency  462 treaties and conventions  456–7 types of legislation  454–7 United States Constitution  453 vagueness  454 stakeholders, initiation of legislation by  16 Starck, Christian  210 Staroňova, K  161–2 statutory instruments and ordinances  12–13

584  Index statutory laws  11, 12, 21 structure of legislation  2, 21, 30–4 subsidiarity  26 sunset clauses  29 supranationalism  9, 15 Supreme Courts  29 Sweden  467–80 administrative agencies  468 amendments  469 Cabinet Office, audit office in  479 case law  468 civil servants  470, 476 coercive powers of state  468–9 committees  469, 473, 475 concordance democracies  28 consensus-oriented cultures, debates in  18 Constitution compatibility of legislation  476–7 democracy  470 framework  467–8 judicial review  477 Legislative Council  476 the people  467–8 consultation  476 context  467 Corporate Governance Code  13, 470–1 courts as norm-givers  471–2 cycle of legislation  472–3 delegation  468, 470 democracy  3, 7, 468, 470, 472, 476–7 deregulation  24 drafting audit office in Cabinet Office  479 committees  469 government  478–9 guidance  479 Legislative Council  473 ministries  478–9 Parliament  474 reasons, giving  26 techniques  474–5 training  478–9 why, what and how to draft  25 effectiveness  24 equality before the law  467 EU law  470–4, 476–8 European Convention on Human Rights  471, 476, 477–8 evaluation and monitoring of laws  29, 475–8 formal force of law, principle of  469 fundamental human rights  5, 477–8, 480 German law, influence of  2, 467 good law  26

government Cabinet Office, audit office in  479 democracy  476 drafting  478–9 individuals  469 inquiries  472–3 Legislative Council  473, 476 legality, principle of  476 ordinances  468 preparatory works  469–70 hierarchy of laws  477 independent advisory boards  27 initiation of legislation  17, 472 inquiries  472–3 internationalisation of law  471 judicial review  29, 475–8 language  474–5 legal science  468 legality, principle of  468, 476 legislative acts  468–9 Legislative Council  472–3, 475–6, 478 ministries  472–3, 478–9 municipalities  468 Nordic legal tradition  467 numbering  474–5 objectives of legislation  474 ordinances  468 Parliament  468–9 coercive powers of state  468–9 drafting  474 judicial review  477 regulations  468 sovereignty  469 the people  467–8 policy-making procedure  3, 473–4 precedent  471 preparatory works  467–8, 469–70 professional or ethical standards  471 promulgation  473 publication  473 quality of legislation  474, 479 reasons, giving  26 Rechtsstaat  468 regulations  468–9 regulatory impact assessments (RIAs)  26, 28 Scandinavian legal realism  479 second readings  17 separation of powers  468 soft law  470–1 sources of law  467, 468–70 sovereignty, transfers of  21 structure of legislation  474–5 style of legislation  474–5 Supreme Court  471, 475

Index  585 systemisation  474–5 training  478–9 unicameral, as  17 utilitarianism  479–80 welfare state  22, 479–80 Switzerland  481–96 amendments  485, 486, 488, 490 bicameral system  17 by-laws  13 cantons  15, 481–3, 484–5 cantonal law  481 consultation  483, 488 elections  484 Federal Supreme Court  485 harmonisation of laws  482 initiation of legislation  486 joint responsibility  482 sovereignty  9 commencement  485 committees  19, 486–7, 489–90 communal law  481 communes  481–2 conciliation committees  19, 490 Confederation  3, 481–2 consensus  18, 483–4 Constitution  3, 12, 27, 481–3 amendments  485, 486, 488, 490 drafting  488 entry into force of amendments  490 government  484 Federal Supreme Court  485 Parliament  485 popular initiatives  483, 486 referendums  486, 490 reviews  485 consultation  28, 483, 488–9 Constitution, amendments to  488 drafting  487–9, 491 federal acts  488 lobbyists  488–9 ordinances  488 public consultation  488–9 transparency  488 treaties and conventions  488 consumer protection  22 context  481 Council of States  18, 19, 484, 489–90 decentralisation  487 delegation  487 direct democracy  3, 481, 483–5, 492, 495 drafting  485, 486–9 committees  487, 489, 493 Constitution, compliance with  488 consultation  487–9, 491 decentralisation  487

EU law  494 experts  487–8 Federal Chancellery  488 Federal Council, reviews by  489 federal legislation  487–9 Federal Office of Justice, examination by  488 final drafts  489 formal legistics, consistency with rules of  488, 489 government  486–7 Internal Drafting Committee  488, 491, 493 international law, compliance with  488, 489 language  488, 491–3 layers  482 ordinances  487, 489 plain language  484, 488, 492–4 preliminary drafts  485, 487–8 reasons, giving  26 teaching and education  494–5 techniques  491–4 transparency  494 effectiveness  24 elections  484 electronic publication  490 emergency/urgent legislation  489 environmental protection  22 EU law consumer protection  22 copying, rephrasing or referencing  494 drafting  494 environmental protection  22 plain language  494 quality of legislation  495 evaluation and monitoring  29, 485–6, 490–1 executive  481, 484–5 experts  487–8, 493 Federal Chancellery  488 Federal Council  484, 489 Federal Gazette, publication in the  489 federal law  481, 486–9, 491–3 Federal Office of Justice, examination by  488 Federal Supreme Court  485, 490 federalism  15, 481, 495 formal legistics, consistency with rules of  488, 489 freedom and liberty of persons  5 government (Federal Council)  484–7, 490 Constitution  484 delegation  487 drafting  486–7 elections  484 independence  484–5 initiation of legislation  486–7 ordinances  487 Parliament  484–5, 490 political parties  484

586  Index harmonisation of laws  482 hierarchy of laws  481 initiation of legislation  15, 20, 483, 485–7 cantons  486 committees  486 Constitution, amendments to  486 federal acts  486 government  486–7 MPs  486 parliamentary groups  486 popular initiatives  20, 483, 486 international law  488, 489, 493–4 judiciary  481, 484–5 language drafting  491–3 experts  493 federal acts  491–3 Internal Drafting Committee  491, 493 LesGes – Legislation & Evaluation  495 militia tradition  492–3 multi-lingualism  491–2, 493 ordinances  491–2 plain language  484, 488, 492–4 popular initiatives  492 reviews  491 specialists  488 layers  481–2 LesGes – Legislation & Evaluation  495 lobbying  488–9 militia tradition  492–3 monism  493 National Council  9, 484, 489–90 ordinances  487–9, 491–2 outlook  495 Parliament (Federal Assembly)  7, 481, 484–5 bicameral system  17 conciliation committees  490 Constitution  485 deliberations  485, 489–90 Drafting Committee  493 government  484–5, 490 groups  486 parliamentary reservation, principle of  6 plain language  493 the people  30, 481, 483–4, 486 policy  25 popular initiatives  20, 483, 485, 486, 492 preliminary drafts  485, 487–8 President  484 primary legislation (Acts of Parliament)  481 process  485–91 publication  485, 489 quality of legislation  495 reasons, giving  26

referendums  5, 21, 483, 485, 489 Constitution, amendments to  486, 490 mandatory  483, 490 official  483 optional  490 popular initiatives  20, 486 reservation of law  6, 12 reviews  491 secondary legislation (ordinances)  481, 485 separation of powers  481, 484, 495 statutory law  12 subsidiarity  9 teaching and education  494–5 territorial principles  3 transparency  488, 494–5 treaties and conventions  483, 488, 493–4 teaching and learning professional legislation  34 technological developments  26–7 territorial tiers of state  2, 3, 8–9 third readings  18 Thornton, Garth  504–5 Thornton’s Legislative Drafting. Xanthaki, H  21 training see teaching and learning professional legislation transparency  2, 24 treaties and conventions  11, 13, 21 trust in the state  24, 542 Tuđman, Franjo  92 Tusk, Donald  379, 380, 382 unicameral countries  17–19 unitary states  8, 9 United Kingdom  497–509 see also devolution in UK Acts of Parliament  10, 497–506 amendments  507–8 Better Regulation  499 bicameral, as  17 Brexit  20, 328, 331, 499, 509 categories of users  498 centralisation  504 Church Measures  10, 500 commencement  504, 507 committees  501–2, 503 competences  500–4 conflict-oriented cultures, debates in  18 constitution conventions  499 examples of statutory law  499 unwritten and uncodified  3, 11, 499 context  497 cycle of legislation  499 decentralisation  18–19 deregulation  24

Index  587 design of law  506 drafting  31, 497 bill teams  501 centralisation  504 committees  501–2 design of laws  506 effectiveness  508, 509 guidelines  507, 509 instructions  501, 505–6 language  506, 508 legal advisers  505 manual  507, 509 methodology  504–6 ministries  505–6 Parliamentary Counsel  19, 497, 501, 505, 507, 509 plain language  508 policy  506, 509 private members’ bills  505 purpose/objective clauses  507–8 quality of legislation  497, 505, 507, 509 Queen’s Speech  26 secondary legislation  505 structure of legislation  507–8 substantive law  506 teaching  509 verification  506 effectiveness  508, 509 electronic publication  19–20, 498, 508 emergency/urgent legislation  500, 503–4 entry into force  504 EU law accession  327–8 Brexit  20, 328, 331, 499, 509 European Communities Act 1972  327–8, 499 primacy  327–8 referendums  20 evaluation and scrutiny  29, 497, 508 explanatory notes  498 first past the post systems  5 first readings  502 gender inclusivity  34, 508 Good Law Initiative  19, 26, 498, 507 government  16, 500 guidelines  498 homogeneity  498 Human Rights Act 1998  499 independent advisory boards  27 initiation of legislation  16, 501 innovations  498 instruments of legislation  504–6 Ireland Act of Union 1800  254 constitutional claim to Northern Ireland  252, 264 Good Friday Agreement  264

joint legislation  264–5 Northern Ireland  251–2, 264–5 partition of Ireland  251, 264 language  498, 506–8 lawyers, judges and senior law librarians, use of legislation by  498, 507 laypersons, use of legislation by  498, 507–8 less legislation, move to  497 local acts  10, 499 Magna Carta  499 Malta  325–7, 334–5 methodology  504–6 ministries  500–1, 505–6 multi-layered systems, legislation in  8 National Archives  498 new legislation, restrictions on  499, 509 non-lawyers using legislation for work, use of legislation by  498, 507 objectives of legislation  504–6 old parliaments, acts of  500 organisation of legislation  500–4 Parliament agendas  16, 26 bicameral, as  17 debates  503 House of Lords  6, 19 procedure  500–4 other chamber, transmission of bills to  503–4 voting  503 Parliamentary Business and Legislation (PBL) Committee of the Cabinet  500 Parliamentary Counsel  19, 497, 501, 505, 507, 509 parliamentary monarchy, UK as  499 parliamentary sovereignty  3, 499 personal acts  10, 499 plain language  508 plans  506 policy  25, 504–6 drafting  506, 509 making  504–6 process, stages of  501 prerogative powers  499 prioritisation  500 private acts  10, 499 private members’ bills  500, 505 procedure  500–4 promulgation  504 Public Acts  10, 497–508 amendments  507–8 procedure  500–4 quantity of legislation  499 publication  498, 508 purpose/objective clauses  507–8 quality of legislation  497, 504–5, 507, 509 quantity of legislation  499, 509

588  Index Queen’s Speech  26 referendums  20 regulation  24, 499, 507, 509 regulatory impact assessments (RIAs)  26 report stage  503 Royal Assent  504 second readings  503 secondary legislation  497, 505 government  500 publication  508 quantity of legislation  499 types  500 separation of powers  13 structure of legislation  506–8 supervisory jurisdiction of High Court  7 Supreme Court  29 teaching  509 techniques  507–8 third readings  503

transparency  498 types of legislation  10, 499–500 user-friendly legislation, move to  497, 509 verification  506 voting  503 Westminster model  17–18 values and goals of law, good legislation and evaluation  21–30 vetoes  7, 18 volume of legislation  21–5, 27 voting  5, 17 Wałęsa, Lech  371–2 welfare state  5, 22 well-being of the people  22 Woerhling, J-M  181 Zbíral, Robert  429