Suchergebnisse

Part I: lawmaking in EC law -- Setting the scene -- Sources of EC law and EC legislation -- Guiding principles for legislation -- Part II: Community soft law instruments -- Introduction to the concept of soft law in EC law -- Categories and functions of soft law -- Part III: legal issues of Community soft law -- Legally binding force -- The competence to adopt soft law -- Indirect legal effects for the legislature -- Indirect legal effects for the judiciary -- Indirect legal effects for the executive -- Part IV: summary, conclusions and recommendations -- The use of Community soft law evaluated.

The adoption of harmonized standards (HSs) within the framework of the 'New Approach' is a long-standing phenomenon of the European decision-making process. Yet, an important question remains how their use actually fits in with the Union's legal system, in particular in the light of the changes Regulation 1025/2012 has brought as well as the hierarchy of norms introduced by the Treaty of Lisbon and the recent case law of the European Court of Justice. In analysing this question, this article concludes that given that HSs are gaining an increasingly EU public law nature and are akin to the Commission's exercise of implementing powers, it can be doubted whether the constitutional safeguards the Regulation provides are sufficient. The 'constitutional fit' of European standardization is in need of improvement as the limited constitutional safeguards for this type of delegation of powers are in sharp contrast with those that have been put into place in the Treaties for the Commission's own exercise of delegated power.

Multi-level forms of governance, as representing a less top-down and more bottom-up approach, have been promoted with a view to enhancing not only the legitimacy of EU action but increasingly also its effectiveness. At the same time, however, their use raises effectiveness and legitimacy concerns of its own. This also goes for the open method of coordination, as one of the major manifestations of the Union's multi-level governance development. Much research on the OMC focuses on its use in particular policy areas and the effectiveness concerns that may arise in such areas. In this contribution the focus will be more generally on the legitimacy of the OMC as a regulatory device, in terms of its legal foundations. It asks how the use of the OMC fits in the European regulatory and legalconstitutional landscapes, in particular to what extent its current patch in these landscapes, in the light of the quest for more legitimacy of the EU, can be said to lead to a need for a) more conceptual clarity and b) a better constitutional embedment in the Treaties? After analysing the development of the OMC in the broader regulatory context of the EU, the relation between the OMC and the classic Community – now Union – method and the European legal framework within which the OMC is being resorted to, the focus is on whether this legal framework meets the requirements imposed by the principle of legitimacy; in particular, under what legal conditions would one be able to say that the OMC makes indeed a contribution to the legitimacy of the European Union? It is argued that some constitutional changes need consideration in this regard. ; This paper has been delivered within the context of the research project: Transnational Private Regulatory Regimes: Constitutional foundations and governance design Co-financed by HiiL (Hague Institute for the Internationalisation of Law)

Part I: lawmaking in EC law -- Setting the scene -- Sources of EC law and EC legislation -- Guiding principles for legislation -- Part II: Community soft law instruments -- Introduction to the concept of soft law in EC law -- Categories and functions of soft law -- Part III: legal issues of Community soft law -- Legally binding force -- The competence to adopt soft law -- Indirect legal effects for the legislature -- Indirect legal effects for the judiciary -- Indirect legal effects for the executive -- Part IV: summary, conclusions and recommendations -- The use of Community soft law evaluated.

The EU avails itself increasingly of soft law instruments, in certain situations to the detriment of legislation. The general assumption underlying this more diversified use of legal instruments is that this contributes to the legitimacy, effectiveness and transparency of Community action and, as such, to good governance. This assumption raises doubts, however, from various perspectives. This contribution focuses on one such perspective, i.e. that of the horizontal division of powers or institutional balance between the EU institutions; to what extent does the use of soft law by one institution entail an unacceptable bypassing of the competences of the other institutions in the decision-making process? In dealing with this question, the author among other things looks into the concept and classification of EC soft law, the competence to adopt soft law and the limits that can be placed upon this competence, the meaning of 'legitimacy' and of 'institutional balance', the existing guarantees for protecting the institutional balance in this regard and changes that may be required.