IMG 5113On 15 May 2017 an ACA seminar was held in The Hague on the topic of Better Regulation. The seminar was organized by the Council of State of the Netherlands and was held in the Knight’s Hall (Ridderzaal) situated in the historical Inner Court (Binnenhof). The Knight’s Hall plays an important role in the Dutch political landscape. Every third Tuesday in September, the King addresses the plenary meeting of the Lower House of Parliament and the Senate and delivers the King’s Speech (troonrede) on behalf of the Dutch government reflecting on the past year’s developments and the government’s policy and legislative plans for the coming year. As the historic Inner Court also provides accommodation for the office of the prime minister and the General Affairs ministry, the ACA members were invited to a reception by Prime Minister Mark Rutte himself at the end of the day.

Prior to the seminar almost all ACA members had answered the questionnaire whose object was to obtain a survey of the existing mechanisms at the national level to improve the quality of legislation. ACA members had been asked to describe the mechanisms in their own country for providing input and feedback on new and existing legislation. The discussion of the national reports in reaction to the questionnaire was scheduled for the afternoon session of the seminar. In the morning session the debate was focused on the Better Regulation programme of the European Commission and on the existing mechanisms at European level.


Piet Hein DonnerIn his opening speech the vice-president of the Dutch Council of State and current president of ACA Europe Mr Piet Hein Donner welcomed all participants. The vice-president presented the subject and the programme of the seminar and provided some information on the history and function of the Knight’s Hall. His words of welcome where followed by a keynote speech by the first vice-president of the European Commission Mr Frans Timmermans in which he reflected on the importance of the rule of law in the European Union, on the agenda of the European Commission with regard to better regulation and on the existing mechanisms to improve the quality of legislation in the Union.


Frans TimmermansMr Timmermans spoke of the function of consultation and impact assessment in the context of EU legislation and elaborated on the Commission’s efforts concerning evidence-based policy making.


Klaus RennertMr Klaus Rennert vice-president of ACA-Europe explained the reluctance of the German courts to play a role in the legislative process in conformity with fundamental principles e.g. the principle of the division of powers and the principle of judicial self-restraint. Courts are, however, not wholly without influence with regard to the quality of legislation since they are in a position to comment and eventually decide on questions of legality and the quality of norms by way of their decisions. The strongest possible expression is the annulment of the norm. The legislator can subsequently modify the existing rules or adopt new ones that avoid the same mistakes. This form of dialogue between the respective powers of state reflects the proper role of the judiciary as an independent, neutral and objective referee in the political process. Judge Rennert admitted however that in a few cases the ‘Bundesverwaltungsgericht’ is officially heard by the Ministry of Justice, in particular in cases of legislation affecting the organisation of the courts. But even in those cases, the expertise of the courts is usually disregarded. In the opinion of judge Rennert a more frequent and closer involvement of the courts in the legislative process would in the end affect the authority and acceptance of judicial decisions.


Luigi CarboneThe seminar was an opportune and useful contribution to the discussion on better regulation in the European Union. All participants concurred in concluding that complex and ineffective legislation is an important factor in the growing alienation between government and its citizens. The European Commission considers this to be one of the causes for the growing distance between the European Union and its citizens which is of particular concern in view of the rise of populist movements that oppose the idea of European cooperation and favour the return to nationalistic solutions. At the same time the need for compromises between twenty eight different legal and political systems in the European Union puts particular stress on the quality of European legislation. The Commission’s programme on Better Regulation should be seen against this background.

As can be concluded from the seminar all members states have different ways and means by which the quality of legislation can be improved and in which the courts or the judiciary play a role to differing degrees. A number of member states have authorities or institutions specifically charged with independently assessing the legal quality of proposed legislation. In other member states there are mechanisms that allow the courts to signal shortcomings and difficulties in existing legislation. So far none of these mechanisms exists in the European Union; an independent evaluation of the legal quality of proposed legislation or procedures to signal judicial bottlenecks in existing legislation are currently lacking.

As Commissioner Timmermans suggested national courts could play a more active role in improving the quality and effectiveness of European legislation. After the end of the seminar several participants expressed the wish to continue the discussion with a view to exploring whether members of ACA-Europe could, collectively or separately, contribute to a further improvement of national and European legislation. Some participants were ready to actively participate in a working group to explore a possible follow-up to the discussions. As can be deduced from the address of Mr Timmermans the Commission would welcome a more active participation of the national courts in identifying deficiencies, inadequacies and imperfections in existing EU legislation or its application. It would therefore be worthwhile to examine the possibilities of such a contribution by members of ACA both in their advisory and judicial capacity. Suggestions to this end will be made at the next ACA-Europe board meeting.