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How much legislation comes from Europe?
RESEARCH PAPER
10/62
Summary
Between 1958 and 2010 the range of areas in which there has been a European Community/Union role has increased.
Generally speaking, successive Treaty amendments have introduced new areas of European action, giving rise to more EU measures. The number of EU laws reached a peak of over 14,000 instruments in the early 1980s and there was a lower peak in the mid-1990s, with the enactment of the remainder of a raft of legislation to complete the internal market. The volume has generally fallen since then.
The former Commission President, Jacques Delors, predicted in July 1988 that within ten years 80% of economic legislation, and perhaps also fiscal and social legislation, would be of EC/EU origin.
Using statistics from national law databases and the EU’s EUR-Lex database, it is possible to estimate the proportion of national laws based on EU laws. In the UK data from these sources provided estimates that suggest that over the twelve-year period from 1997 to 2009 6.8% of primary legislation (Statutes) and 14.1% of secondary legislation (Statutory Instruments) had a role in implementing EU obligations, although the degree of involvement varied from passing reference to explicit implementation. Sectoral studies suggest that the agriculture forms the highest area of EU influence and defence the lowest. The British Government estimates that around 50% of UK legislation with a significant economic impact originates from EU legislation.
Estimates of the proportion of national laws based on EU laws vary widely in other EU Member States, ranging from 6.3% to 84%. However, there is no totally accurate, rational or useful way of calculating the percentage of national laws based on or influenced by the EU.
It is not clear to what extent the figures alone indicate the degree of European influence or “Europeanisation”, without a qualitative evaluation of the effect of EU output. This might include some analysis of the purpose and relative impact of EU measures, changes or adaptations in national policy-making and government structures, parliamentary scrutiny and transposition1 or implementation methods. Other factors which should be taken into account in tackling this question include the following:
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Even with advances in technology and highly efficient search engines and techniques, it remains virtually impossible to give an accurate answer to the question about the number of national measures based on EU requirements, let alone the more complex matter of a Europeanising impact. Sources for data collection, including the EU’s own EUR-Lex website and national databases, are not totally reliable.
Several analysts note that there were missing values in the national and/or EU databases they used. Electronic databases used to trace EU legislation tend not to go back beyond the early 1990s, making it difficult to measure accurately the institutional output. Also, data collection methods vary among the Member States. For example, some do not record amending EU directives (i.e. directives which change earlier directives), only the original directive.
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It is difficult to differentiate between EU-induced and nationally induced changes to the law. Governments might have intended to implement legislation in areas in which
1 The process by which EU law is turned into national law. .
the EU decides to act, or have legislated in anticipation of the adoption of an EU law. These do not then show up as EU-based, even though they might have been EU-influenced. In addition, if calculations focus on politically defined sectors, they may vary over time and across Member States. What is meant by ‘economics’ in one State, for example, may differ from what is called ‘economics’ in another.
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The proportion of EU-based national law will vary from year to year, depending on how much legislation the EU and the Member States adopt overall, how many directives apply to each State and what existing measures each State has in place in the area concerned. The process of Europeanisation is uneven among the Member States; they are affected to a different extent by the same EU laws. Federal States may implement fewer measures at federal level than unitary States, or they may implement the same EU measure at both state and sub-state levels in different ways.
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Figures don’t give an insight into relative importance or salience of EU or national legislative acts. For example, the UK’s European Communities (Finance) Act 2001 to adopt the Council Decision on the EU’s system of own resources was more significant in terms of its impact than, for example, the Olympic Symbol etc (Protection) Act 1995. Figures don’t give information on how EU laws affect the daily lives of citizens or businesses - the relative material impact. For example, the ‘working time directive’ is arguably of far greater significance to the working population of the Member States than, for example, the Commission Regulation on “the classification of padded waistcoats in the Combined Nomenclature”.
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Length of EU membership may be relevant. The proportion of EU-based national laws is likely to be higher for a new Member State than for an older one, as the new State will have adopted all the existing acquis communautaire (with the exception of some transitional exemptions) in a short time frame in order to qualify for membership. As formal membership requires that most adaptation of national law to the acquis has already been made before entry in a pre-accession policy alignment, in theory, a new Member State starts off on an equal footing with other Members. In practice, the initial adoption of the vast body of the EU acquis has a significant impact on new Members.
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EU legislative instruments have a different significance depending on whether they are agreed by the Council or the Commission. The latter adopts a great many ‘soft’ instruments under delegated powers. Council acts are also more significant than Commission acts: compare, for example, a Council decision to admit a new Member State to the EU with a Commission regulation on the size of strawberries.
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EU regulations, unlike directives, are not usually transposed into legislation at national level, but rather into quasi-legislative measures, administrative rules, regulations or procedures etc which do not pass through a national parliamentary process. How, then, can one be worked out as a proportion of the other? The term ‘national obligation’ might be more appropriate, but is it possible to identify the sum of national obligations arising from EU laws? Increasing use of regulations, particularly Commission regulations, “decouples national transposition procedures” (Christensen), thereby increasing the unquantifiable element of EU activity. All measurements have their problems. To exclude EU regulations from the calculation is likely to be an under-estimation of the proportion of EU-based national laws, while to include all EU regulations in the calculation is probably an 2
over-estimation. The answer in numerical terms lies somewhere in between the two approaches, and it is possible to justify any measure between 15% and 50% or thereabouts. Other EU ‘soft law’ measures under the Open Method of Coordination are difficult to quantify as they often take the form of objectives and common targets. Analyses rarely look into EU soft law, the role of EU standard setting or self-regulatory measures.
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The limitations of data also make it impossible to achieve an accurate measure. We do not know, for example, how many regulations have direct application in the UK - olive and tobacco growing regulations are unlikely to have much impact here, but the UK implements such regulations along with olive and tobacco-growing Member States.
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The methods of transposition and implementation of EU law may affect a statistical calculation. Some Member States - Italy, for example - implement several EU laws in one omnibus instrument (the annual Community Act transposes Community directives into Italian law and implements any other EU legal act and case-law: see European Parliament and ECPRD “Comparative Study on the Transposition of EC Law in the Member States”, June 2007), while others implement laws individually. In the UK almost all EU directives are implemented by means of Statutory Instruments (SIs), although a few are incorporated by Acts of Parliament. Do both instruments carry the same weight in the calculation? In the UK there is no direct correlation between the number of EC legislative instruments adopted and the number of SIs needed to implement them. For example, 26 separate SIs were needed to implement the Council Directive “on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles” (EEC/70/157, OJL 42, 23 February 1970), whereas only one SI was needed to implement the Council directive concerning the minimum safety and health requirements for the workplace (EEC/89/654, OJL 393, 30 December 1989). Furthermore, SIs as a measuring tool do not reflect the Europeanisation of policies in the Common Foreign and Security Policy or the former Justice and Home Affairs area, where the EU’s influence has largely not been exercised by legislation but by Member States acting intergovernmentally.
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The different state structures and legal traditions in some Member States may affect figures for EU-based laws. For example, Marcelo Jenny and Wolfgang C. Müller consider that Austria’s “positivist legal culture manifests itself in a share of laws among EU-related norms that is relatively high compared to other member states” ((Public Administration Vol. 88 No 1, 2010 p.36, “From the Europeanization of Lawmaking to the Europeanization of National Legal Orders: The Case of Austria”, Marcelo Jenny and Wolfgang C. Müller. Advocates of ‘legal positivism’ believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted or recognised by a governmental entity or political institution, including administrative, executive, legislative and judicial bodies). Also, Member States sometimes implement more than what is required by EU law (‘gold-plating’).
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EU laws may be introduced when domestic legislation is amended primarily for other purposes; or there may be no need for any implementing legislation in some Member States because the requirements of the directive are covered by existing national law
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(“convergence, but no influence”: Bovens & Yesilkagit, Public Administration Vol. 88, No. 1, 2010, “The EU as Lawmaker: the Impact of EU Directives on National Regulation in the Netherlands”).
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