5.3.4 Recommendations and opinions
These have no binding force and therefore are ineffective as Community law. However, they can have ‘persuasive authority’. If a recommendation or opinion is ignored, it may later be followed up with a stronger legislative initiative, such as a decision or directive.
Activity 4 The EU law-making process
Please read ‘Problems in the law-making process’. Combining the information you obtain from this text with the knowledge you have acquired from this course, please write a short paragraph (about 200 words), in your own words, on the difficulties in the EU law-making process. Write it as if you were explaining these difficulties to a friend who is interested in the subject. You should address the issue of the law-making process at the EU level and its problems. This activity will give you the opportunity to give a critical dimension to your perspective on EU law and also to practise translating the acquired knowledge into your own words for the benefit of another reader.
Click here to read ‘Problems in the law-making process’.
You will probably have picked out most of the following points:
There are three main problems within the EU law-making process: democracy, transparency and efficiency. First, there is the issue of ‘democratic deficit’ at the level of the EU institutions. The Commissioners are non-elected political appointments not controlled directly through national democratic voting processes. Also, although the Commissioners are supposed to represent the EU and its citizens, the control over them is exercised only over individual members and only by the country of their origin and not over the Commission as a body.
The EU democratic deficit is reflected also in the use of non-elected bodies in the law-making process. Bodies such as COREPER have a formal advisory role. In practice, however, many decisions come within its remit. Ironically, the only directly elected body, the European Parliament, has traditionally been seen as a rather weak institution, although recent reforms have strengthened its role to some extent.
Second, in spite of several initiatives on ‘better law making’ the EU law-making process also suffers from a lack of transparency regarding all its stages, from the drafting and the availability of the EU materials to the language in which the EU law is written. For instance, the Council's meetings take place behind closed doors. As such, it is very difficult for the EU citizens to know what issues have been discussed and what positions were taken by their EU Councillor. You might consider the counter-argument offered in the article (that the Council's style of meeting is expressly chosen in order to veil politically sensitive compromises) as unsatisfactory since the Council members should be accountable to their Parliaments and citizens in any case.
The Treaty of Amsterdam has marked yet another step on the path of opening the EU decision-making processes to public scrutiny by recommending guidelines on improving Community legislation. Moreover, Article 255 EC and Regulation 1049/2001 provide that all EU institutions must change their rules regarding public access to their documents.
Third, there is a problem of inefficiency in that the Community law-making processes are complex and time-consuming.