Ton van den Brink and Dorin-Ciprian Grumaz
EU legislation has long been the forgotten stepchild in EU law and the study thereof. Given the major transformations it has undergone and an ever more complex relation to national law, it is time to put EU legislation in the limelight, argue Ton van den Brink and Dorin-Ciprian Grumaz.
In the bright light of the EU treaties and the case-law of the CJEU, EU legislation has long seemed a dim satellite in the EU law universe. Indeed, the EU Treaties have been characterized as the EU’s ‘primary legislation’, signalling that these not only provide the basic constitutional structure of the EU but equally include a broad range of substantive provisions. This has enabled the CJEU to impact the design of EU law in a profound manner. By contrast, EU legislation has confirmed in every sense its character of the EU’s ‘secondary legislation’. It has mostly elaborated Treaty objectives into detailed provisions, often of a high technical nature. Moreover, arduous legislative processes have resulted in limited output.
Predominantly viewed as judge-made law – still best described by Stein in 1981 (“Tucked away in the fairyland Duchy of Luxemburg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe”) – EU legislation has received little scholarly attention. We argue that this is no longer tenable and that EU legislation requires systematic study in both research and education. There are three main reasons for that.
First, EU legislation is increasingly the result of an intricate balancing of multiple, and often conflicting public interests. The General Data Protection Regulation (GDPR, Regulation (EU) 2016/679), the revised Posted Workers Directive (Directive (EU) 2018/957) and the recent Regulation on the COVID-19 recovery fund are all cases in point. They require political balancing between social and economic interests (the Posted Workers Directive), fundamental rights and the freedom to conduct a business (the GDPR) and between economic recovery and fiscal prudence. Such legislation is by no means ‘secondary’: the content and main principles are set by the EU legislature and the substance of the legislation can only indirectly be derived from the Treaties. This is also true for the GDPR: indeed articles 16 TFEU and article 8 CFREU contain the general right to protection of personal data, but the Regulation extends considerably beyond a mere (technical) elaboration of that right (especially in relation to enforcement). The CJEU seems increasingly aware that EU legislation ever more involves a careful balancing of public interests. Thus, the Court has become increasingly hesitant to second-guess or to diverge from the precise balance of interests struck by the legislature. The citizenship case-law of the CJEU after the adoption of the Citizens directive is a case in point.
Second, we need to rethink classic notions to classify EU legislative strategies. The multilevel system of the EU requires all EU legislation to express a balance between EU interests and national autonomy. Over the years, various legislative strategies have been developed to accommodate this balancing act. Classic concepts such as minimum harmonization, ‘new approach’ harmonization and total harmonization seek to capture these distinct strategies. These are in part linked to EU constitutional principles (such as the principles of conferred powers and proportionality). For another part the CJEU has sought to shed more light on their nature and scope (e.g. in the Philip Morris decision,. Yet, even typical minimum or total harmonization measures often still entail uncertainties regarding their precise effects in and on the Member States. The Directive on combating the sexual abuse and sexual exploitation of children and child pornography to name just one example concerns a minimum harmonization measure. The obligation to adopt ‘appropriate measures’ to prevent sexual abuse has lacked precision, thereby making it unclear for Member States what measures should be adopted exactly.
But there is more. Much contemporary EU legislation seems to match these classic concepts less and less. The GDPR not only contains substantive rights for citizens and obligations for data controllers, but equally includes far-reaching enforcement provisions; it elaborates specific sanctions and it sets organizational requirements for national data protection agencies. In this light, it would certainly not be satisfactory to qualify the GDPR simply as a total or minimum harmonization measure (or perhaps a combination of both). Rather, what we witness here is the EU legislature developing new legislative strategies and combining them with these more classic ones.
The Regulation on the COVID-19 recovery fund equally challenges our accepted typologies of EU legislative strategies. The impact of the regulation can hardly be overestimated. With 672 bn euro worth of investment power the measure has the potential to provide an unprecedented boost to economic recovery in the Member States. It is, moreover, instrumental to address other major policy challenges in the EU, such as the digital and the green transition. On the other hand, the regulation itself contains no specific targets, but instead establishes a decision-making structure that resembles that of the European Semester. Should the regulation thus be qualified as procedural harmonization? Surely, this concept would strongly confuse those working on (EU) criminal or (EU) private law. They would rather associate that term with harmonization of civil or criminal procedural law of the Member States.
The EU legislature has found many more ways to balance national autonomy with EU interests than those classic notions reflect. In some cases, Member States’ legislative autonomy may be greater than expected. EU legislative acts may for instance involve full harmonization, but by excluding important elements from its scope of application or by including restrictive core definitions, national legislatures may still enjoy considerable discretion. Another familiar strategy in this regard is enabling the Member States to apply exceptions to the core provisions of EU legislation. The Copyright directive is a case in point and includes a range of exceptions to the core rights of reproduction and distribution, e.g. for teaching and scientific research purposes. Conversely, other EU legislation has a much more significant impact on and in the Member States. Regulation of horizontal rather than sector-specific issues and extending the EU’s regulatory reach deep into the Member States’ institutional and enforcement structures impacts the Member States in more profound ways than concepts like total harmonization may capture. All this requires us to consider how the variety in EU legislative strategies may be captured, especially in terms of their impact on and in the Member States.
The third reason why EU legislation requires more attention flows from the EU’s Better Lawmaking Policies. Based on an interinstitutional agreement, Better Lawmaking Policies seek to increase the quality of EU legislation. One could expect strategies to balance unity and diversity to be a key element. Yet, with an emphasis on impact assessments, stakeholder consultations and legislative evaluations, these policies are in reality quite procedurally oriented and limited to the EU level, with Commission scrutiny too often reduced to a mere box-ticking exercise. Thus, Better Lawmaking misses an important opportunity to connect better with the national legislative level – not only in ensuring a better ‘fit’ with national legislation, but also in collecting input from national levels including from national parliaments, as demonstrated by a COSAC report already back in 2015.