31.1.2006   

EN

Official Journal of the European Union

C 24/1

1.1

The European Economic and Social Committee has already drawn up various opinions as a contribution to the creation of a European tourism policy. In this context, the drafting of a further opinion is proposed, which would act as a reference point for certain tourism initiatives — backed by the actions of European, national, regional and local institutions, social partners, other civil society organisations and tourism sector players — in a united effort to offer alternatives to areas in decline, particularly to local people and businesses that are financially dependant on these areas, with a view to maintaining economic activity and all the benefits which this brings.

1.2

This document is intended to contribute to the much-needed regeneration of a number of areas throughout the European Union, which are, for various reasons, currently in socio-economic decline. It focuses on the alternatives that the tourism industry can offer these areas.

1.3

The following procedure for the drafting of the final version of the opinion is being followed:

1.4

Two situations with mutually complementary features should be taken into account:

2.1

The opinion is not intended to be a review of the processes which have brought these areas to their present situation, nor should it analyse restructuring activities carried out in other sectors (industrial, mining, agricultural, etc.), although such activities may provide pointers for our proposals.

2.2

In our analysis, we will begin by distinguishing whether the area in question has undergone specific restructuring or whether it is a deprived area yet to develop major industries, where tourism can provide a starting point and drive more widespread development.

2.3

Hence, our opinion is set out as follows:

2.3.1

Analysis of the situation of areas in decline and the principal issues — social, labour, business and institutional commitment aspects, etc. — which should be taken into account in future tourism proposals. The precise identification of what is understood by the term ‘areas in decline’ is of utmost importance, since diverse circumstances and conditions can lead to different alternatives.

2.3.2

Therefore, our opinion addresses the following aspects:

2.3.2.1

The situation of areas in decline: identify these areas' failings from various perspectives, taking account of the following: problems sometimes caused by a history of dependency on one type of industry or business; environmental disadvantages or deterioration; inadequate or ill-suited infrastructures which impede the move into tourism; labour force with a background of skills which cannot be transferred to the tourism sector; social environment unsuitable for integrating new activities such as tourism. The fact that areas in decline are not usually natural tourism areas should be taken into account in particular, since this makes it especially difficult to find the right form of tourism: cultural and archaeological tourism, sport tourism, education and many other alternative forms of tourism. In particular, ‘positive experience’ is recognised as the basis for all tourism products and should be identified and promoted.

2.3.2.2

Institutional commitment: this opinion represents a call for the cooperation which is essential between the different authorities and institutions; it should describe the forms, scenarios and models of interinstitutional cooperation as well as the public resources that can contribute to the launch of tourism. Special reference is made to the role of the European Structural Funds in the regeneration of areas in decline. The institutions have an important role to play in providing the training needed to reskill the labour force from industrial areas in decline for jobs in the services sector.

2.3.2.3

Social roots as an objective: industries in decline have been linked for many years to the areas where they initially developed and subsequently declined. This means that local people have over the years established a bond going back generations from both living and working in these areas. The tourism initiatives that we are setting out should go a long way to maintaining this bond by creating the conditions that make it possible: housing, services, communications, etc. Another way of encouraging this social bond is through the creation of stable jobs. Although tourism is a good source of employment, the serious problem of seasonality can hinder the development of this social bond and cause unwelcome migration at certain times of the year.

2.3.2.4

Social dialogue, vital to the analysis and development of alternatives: we propose that social dialogue through unions and associations be the cornerstone of the establishment of a commitment by workers and employers to carry out projects and initiatives. This bipartite dialogue should lead to a tripartite dialogue involving the authorities in the search for feasible alternatives. Other civil society and tourism sector organisations should also help to bring projects to fruition.

2.3.2.5

Promoting initiatives committed to sustainable tourism: despite the social upheaval that socio-economic decline represents for large areas, it is clear that the approach adopted for new development alternatives can not only correct errors in the way previous measures were planned, but also situate new activities within the socially, economically and environmentally sustainable parameters advocated by the EESC for tourism

2.3.2.6

The environment as a focus of recovery and planning of tourism activity:

2.3.2.7

Sustaining and increasing business activity and the promotion of productive investment: we have tried to draw up as specific a list as possible of initiatives supporting entrepreneurship. Entrepreneurship in areas in decline is rooted in past specialisation, due to entrepreneurs direct involvement in the traditional industry or in ancillary businesses. In this respect, the opinion explores various initiatives for establishing and maintaining businesses, business training and capacity building, developing criteria for competitiveness, research and development, design, marketing, etc. It should also encourage approaches such as promotion, partnership and cooperation between businesses and between businesses and the authorities, and the creation of networks between businesses, areas and sectors. Special attention should be paid to micro, small and medium-sized businesses.

2.3.2.8

Maintaining and increasing employment levels as a priority: the process of socio-economic decline in businesses and sectors constitutes the greatest social cost due to the loss of jobs; therefore the main objective of regeneration initiatives should be to maintain and, if possible, increase employment in areas in decline. In order to do this, we propose that, in addition to transitional social protection schemes, the development of tourism initiatives should also aim to promote job-creating investment, vocational training and retraining, promotional measures, a culture of self-employment and a social economy.

2.3.2.9

Integrating all factors that contribute to a tourism policy: tourism projects for the socio-economic recovery of areas in decline must provide a boost for all the factors, in addition to those already mentioned, which shape tourism policy. Thus, the contribution of cultural, historical, heritage, natural, sporting and other factors must be established.

2.3.2.10

A significant challenge, already successfully met in certain areas, is that of making good use of aspects of previous activities in the design of new tourism alternatives.

2.3.3

It is very important to analyse in detail the diverse experiences of the EU countries, not only to try to adapt them to other environments, but also to support and reinvigorate them. Since positive experiences do not seem to be very common, it is not easy to come up with a very extensive and diverse range of examples of such initiatives.

2.3.4

In particular, account should be taken of the possibility of different tourism destinations in areas in decline operating as a network, providing a strong base for promotion and mutual support.

2.3.5

Fostering self-employment is undoubtedly an important factor in enabling workers to adapt to a new situation. Indeed, the study of this contribution will greatly benefit areas in decline in their transition to tourism areas and to rural tourism areas particularly. The support that this type of employment needs to be an effective instrument in this difficult adaptation process should be studied.

2.3.5.1

Some initiatives to develop in this field:

2.3.5.1.1

At a European level, self-employment is defined as workers' capacity and decision to practice an activity for their own account, either individually or as a group. A self-employed person is above all a worker who, in undertaking an independent activity, maintains civil and commercial relations with suppliers and clients.

2.3.5.1.2

For years, self-employment has represented an effective form of defence against industrial economic crises, since it has made it possible to maintain employment levels and meet the need to create new jobs.

2.3.5.1.3

Self-employment is currently increasing amongst young working people and women.

2.3.5.1.4

To be effective, tourism services based on self-employment must encourage the development of new professional skills. Some, but by no means all, of the new rural professions that can be created, are as follows:

2.3.6

Furthermore, social tourism will certainly play a role in the future as an alternative for numerous areas in decline seeking new economic activity through tourism. Due to its distinct characteristics, social tourism is a particularly useful tool in the fight against seasonality and for the staggering of holidays.

2.3.7

The new European scenario for developing tourism alternatives in areas in decline: the opinion refers to the opportunities that the enlarged Europe provides for establishing general frames of reference for action, exchange of information, inter-project associations, the promotion of best practice, the development of public-private cooperation, etc.

2.3.8

The commitment in the Constitutional Treaty to citizens, their rights and the most deprived regions and areas, enables our opinion, together with the section on tourism in the Constitutional text, to provide a European response more in touch with national, regional and local situations.

2.4

Integration of lines of action that can contribute to an alternative: the EESC's previous opinions, the Commission's and European Parliament's initiatives and the initiatives of institutions such as the World Tourism Organisation and the International Bureau of Social Tourism, are explored in the text of this opinion.

2.5

Experience as a key focus: this opinion is intended to be practical and useful, particularly for areas that we wish to help recover. Therefore, it will set out a list of best practices in the development of this type of initiative.

3.1

It is not easy to define exactly what is meant by areas in decline as referred to in this opinion's title, not only because of the diversity of their characteristics, the origin and cause of their decline and the scale or range of its effects, their geographical spread, but above all because of the gravity of the consequences for local residents and businesses.

3.2

Perhaps the main element that should be studied in order to characterise and distinguish the different kinds of areas in decline is their economic history, in the form of various indicators. This should make it clear whether the situation has arisen recently due to outside technological, social or economic changes, or whether it is a permanent situation and the area has never, at any point in its history, achieved the economic development needed to bring wealth and prosperity to its inhabitants. This difference is undoubtedly very important in identifying the ideal way to tackle the decline and finding valid alternatives. Business experience, the training of the local people and hence the possibility of finding a replacement or new activity all differ greatly from one case to another.

3.3

Where areas have not yet achieved a good level of economic development, the causes of the situation can be very varied: a peripheral location, extreme environmental conditions, insufficient infrastructure, a local population lacking in entrepreneurship and finally a whole group of factors that have caused and continue to cause the local population to migrate to areas with more opportunities for economic development, both in their own country and abroad. In short, the progressive depopulation and subsequent social upheaval of large, mainly rural, areas of Europe is a problem being decisively addressed by EU regional development policies and instruments. Tourism and the development which it brings are the objective of several useful actions in this field.

3.4

Where areas have at some time enjoyed strong economic development based on a number of activities (agriculture, mining, the textile, metal or chemical industries for example) and have for various reasons had to abandon this activity, the problem is basically the breakdown of a social model, with all the repercussions of this for the local population and the fabric of the local economy. In these cases, dependence on one type of industry or lack of economic diversification are additional factors that can hinder the search for an alternative to the job losses that economic decline entails.

3.5

There are many factors that can and do contribute to the decline of a formerly active, profitable and competitive area, which created both employment and wealth. However, on a global scale, it is possible that the globalisation of economic activity and technological change lie at the heart of these factors. Markets are changing rapidly, often very suddenly, and the stability that industry brought to those nations that knew how to properly apply industrial principles in previous centuries has disappeared and been replaced by technological and social change, expanding markets, real-time information on a global scale, worldwide competition and the relocation of manufacturing and services. The cost of labour has been presented as the main factor in the location of industries, but it is research capacity, development and innovation, the proximity and quality of services, management training, and employees' skills that, together with access to technology, determine the competitiveness of an economic activity. Ending the process of deindustrialisation in Europe and finding alternative ways of creating employment is possibly the biggest challenge facing Europe, as the Lisbon Strategy acknowledges.

3.6

The effects of the decline of an area on the local population and businesses are wide-ranging: job losses, general impoverishment, demographic changes, depopulation and the loss of the industrial fabric. However, it is important to point out that these effects reverberate down the generations in many different forms. Those suffering directly from economic decline often find in social protection schemes a type of replacement that is undesired, but needed insofar as the necessary income is received through social subsidies. This is the case when large industrial and mining businesses close down and young and middle-aged people, potentially capable of the work, are forced into inactivity and reliance on social subsidies. Although this situation is undesirable, the problems of the next generation, who do not have jobs or subsidies, are even more worrying. In situations of this type, entrepreneurship, diversification of activities and training are more than an alternative, they are an absolute necessity.

3.7

In short, it is for these areas in decline, those that have not achieved economic development and those that have lost it, that tourism can represent a viable alternative, moving their economic development towards a strong, stable industry, with good current and future prospects, which creates jobs and is capable of sustaining an economic, social and environmental balance. It is clear that the cultural and economic change that this will in all likelihood entail will not be easy and not all cases will be successful, but there are few alternatives for areas in decline and it is possible that those alternatives available would place demands that would be even harder to meet.

3.8

It should not be forgotten that sometimes within or near large cities, even cities with a thriving economy, marginalised and run-down areas with little or no economic activity can spring up. In these cases, various international events can assist the economic recovery and revitalisation of such areas. Examples such as the World Exhibitions in Seville and Lisbon, the Olympic Games in Barcelona, or more recently, Athens, have proven essential to physical rehabilitation. They have unleashed a new momentum and created conditions conducive to such areas becoming a new tourist destination.

4.1

Having analysed the situation, origins and essential characteristics of areas in decline, it makes sense to define the objectives and methods that will facilitate our study, as indicated in this opinion's title, of the contribution of tourism to the socio-economic recovery of areas in decline.

4.1.1

First and foremost, it should be pointed out that the main objective of all economic development can only be to provide the population, the people who live locally, with suitable conditions for personal and social development, so they do not feel obliged to emigrate or move. In short, it is to maintain the social fabric that has survived for generations in the area. Therefore, tourism initiatives proposed as alternatives must effectively provide not only the necessary infrastructure, but also stable employment for those people who work in tourism in its widest sense. Establishing tourism products that are sustainable and viable in the long term is vital to offering an alternative to the unemployment brought about by socio-economic decline, if maintaining social roots is to be a primary objective.

4.2

The diversification of economic activity is also an objective of all economic development in areas of decline. Should one of the causes for the decline be technological or market changes in areas where economic activity is characterised by dependence on one type of industry, it seems clear that in order to avoid a repetition of this situation, complementary and diversified activities, capable of sustaining the region's economy in the future, should be organised. Because of tourism's cross-sectoral nature involving many players, businesses of all sizes, family and multinational businesses, businesses with wide-ranging social objectives and commercial interests, it effectively diversifies an area's industries.

4.3

The sustainable balance of activity, economically, socially and in particular environmentally, is another of the objectives of developing areas in decline. Often, declining industrial or mining activity has led to serious deterioration of the area's environment; obsolete and abandoned buildings, contaminated industrial waste, physical damage and polluted soil are frequently the result of past industrial activity and are evidently not ideal conditions for the development of tourism, which generally seeks conditions where nature is at its most attractive.

4.3.1

In principle, it falls to businesses that have carried out their industrial activity in an area to recapture the original natural conditions or at least rehabilitate them as far as possible. Obviously it is not easy to apply this principle since the very situation of industrial decline inhibits this. Therefore, it is up to the public authorities to provide subsidies and guarantee that the surroundings are suitably maintained. This is particularly important when businesses that are relocating have received public funds on starting up. Businesses' social responsibility should induce them to meet these additional costs of their activity.

4.4

In order to achieve these difficult objectives, various methods should be used to bring about success. The first step in the process should be social dialogue: this is key to developing alternatives. Social dialogue between social and economic players, between businessmen and workers through unions and employers' associations, is the cornerstone to the success of projects and initiatives. Civil society — its various community, consumer and civic associations — can and should participate in the process.

4.4.1

In particular, however, the authorities need to commit themselves and actively participate in the promotion of alternatives for areas in decline, be it tourism or other industries or services. Cooperation between different levels of administration and public institutions should pave the way for the success of the initiatives; they should, if necessary, support the economic viability of the projects. The EU's Structural Funds are powerful tools for such an action, coordinated at European, national, regional and local levels, for researching and implementing regional development projects and initiatives capable of revitalising areas in decline.

4.5

The training of people in areas in decline is one of the building blocks of this regeneration process. Vocational retraining should be guaranteed for the long-term unemployed, to enable them to find work in alternative activities, which are usually very different in their requirements and skills from previous activities. Past experience shows that this regeneration is a huge challenge and that only through intensive and continuous training is it possible to transform industrial workers into service sector workers. The same can be said for the next generation, those that have not suffered directly from redundancy, but who have no employment prospects in the area's traditional industry. Only training can enable them to overcome this lack of job opportunities.

4.6

The current process of European enlargement can bring both advantages and disadvantages: on the one hand, there are more areas to be redeveloped with an industrial, mining or agricultural past which is difficult to overcome. On the other hand, it is clear that the demand for mobility in leisure and tourism has been substantially increased, thus strengthening the tourism industry. Activities promoting sustainable tourism throughout Europe, according to the criteria of the European tourism model, can be a valuable tool in the economic development of some areas in decline.

5.1

One of the main objectives of this opinion is to bring together and study the various good practices in which tourism has proven a successful alternative for areas in decline.

5.1.1

Therefore, as well as the numerous experiences assembled at the hearing held in Córdoba, organised jointly by the EESC and the provincial authority, other instructive initiatives have been brought together and merit study and analysis, so they can potentially serve as examples.

5.2

The experience of Asturias (Spain): this successful case saw the whole region, formerly characterised by mining and industry, react to decline and job losses in these sectors by choosing to intensively develop tourism. Therefore it is developing tourist brands and products strongly connected to the idea of Asturias and nature:

5.2.1

This new strategy of local development has been very successful — employment in the region has increased by 8 % in recent years. It is clear that, in this case, environmental sustainability has been the basis for high-quality tourism, in harmony with nature, and that both economic and social players as well as public institutions have actively chosen to support this strategic change and new regional model.

5.3

The experience of Zabrze (Poland): throughout the region of Silesia, the transformation of the economy and markets has led to the closure of many businesses, causing the loss of tens of thousands of jobs and the creation of a desolate landscape scattered with post-industrial wastelands. Numerous efforts have been made to promote tourism, but the region continues to suffer from its traditional clichéd image as an industrial region of gloomy landscapes and environmental degradation. Although this image seems unattractive to tourists, it may be an asset for the social and economic life of the region if the area's industrial heritage were exploited for tourism, just as the authorities desire and plan. It is a matter of rehabilitating post-industrial sites by turning them to new uses, which are mainly tourism-oriented and are not seasonal activities. Thus the industrial heritage and unique character of these regions and cities is conserved.

5.3.1

However, this project has a great many obstacles to overcome. Problems relating to the poor technical state and general dilapidation of the sites are compounded by various issues of property ownership, the lack of financial resources and skilled management staff, the under-developed tourism infrastructure and other factors, meaning that only a limited number of industrial heritage sites are able to meet the criteria for becoming successful tourist attractions. The role that the European Structural Funds such as the ERDF and the ESF can play is vital to overcoming the obstacles of capital financing and training the local population.

5.3.2

A regional plan for using post-industrial sites for tourism has been drawn up: ‘The circuit of industrial heritage sites’ comprises some 30 sites, selected on the basis of various criteria, such as accessibility, interest, tourist capacity and visitor security.

5.3.3

In the specific case of the municipality of Zabrze, a medium-sized city situated in southern Poland, the local authorities have learned to appreciate the importance of industrial tourism and since 2003, Zabrze has been a recognised model of industrial tourism and has received various tourism-related awards. Zabrze has learned not only how to implement its alternative to the decline of its mining industry but has also become a centre for discussion and encouragement of future industrial heritage tourism projects in Poland and throughout Europe, holding the International Conferences to study ‘The treasures of industrial heritage for tourism and leisure’ in September 2004 and May 2005. The fruits of these conferences are the Zabrze Resolutions, which offer a valuable insight into the use of industrial heritage in tourism and leisure. The WTO's willingness to be involved in creating an Industrial Heritage network, which cooperates in product promotion, should be noted.

5.3.4

Overall the experience of Zabrze offers a wealth of knowledge and experiences, which can undoubtedly be useful to other similar places that wish to adapt to tourism. The EESC fully recognises, supports and will promote the value of tourism at every opportunity.

5.4

The experience of the Museo Minero de Río Tinto in Huelva (Spain): the Río Tinto mine used to be a rich source of precious metals that had generated wealth since Roman times. In 1982 the mine closed and became an economically deprived area. The Museo Minero de Río Tinto today protects the legacy of all these ups and downs. It is an information centre for the Parque Minero de Río Tinto, a theme park made up of the villages and landscape of the mining area. The Parque Minero covers an area of 900 hectares and visitors can take a train ride along the former railway that transported the ore to Huelva, visit former mines, a Roman cemetery and the mining district set up by the English company which owned the mine at the end of the 19th century. In short, a previously disused area has been transformed into a place for leisure, heritage and cultural regeneration. In this case, an ‘experience’ based entirely on attracting tourists has enabled operators to profit from areas where the only other alternative would be abandonment.

5.5

The mining and industrial area of Peñarroya-Pueblonuevo (Spain) has a valuable industrial heritage and constitutes the remains of a 20th century manufacturing centre. It is recovering by adapting to provide various leisure activities for the local population and visitors. It should be noted that various villages of the Valle del Alto Guadiato in the province of Córdoba have joined forces in a project to promote attractions such as the Museo geológico Minero de Peñarroya-Pueblonuevo. This initiative seeks to attract tourism capable of revitalising the economy of villages suffering from unemployment due to the mine closure. The upshot is a comprehensive and coordinated initiative, comprising industrial and geological attractions, gastronomy, sport and culture and involving various communities such as Fuenteovejuna, Bélmez and other localities in the area.

5.6

The ‘Sistema del Museo de la Ciencia y de la Técnica de Catalunya’ (Spain) is a network covering some 20 points of interest relating to the industrial heritage of the region of Catalonia, including the textile, paper, tanning and transport industries. In centuries gone by, Catalonian industry was undoubtedly of major importance, not only economically but also culturally, architecturally and socially; it forms part of the collective identity of Catalonia. The ‘Sistema’ is intended to promote tourism to all the 20 points of interests and in short, to act as a network of cultural tourist attractions. This model of activity is ideal for other similar projects.

5.7

Another interesting initiative is that of the International Bureau of Social Tourism (BITS), which has contributed to the alternative development of a coal mining area in decline in La Roche-en-Ardenne (Belgium), through the creation of a holiday resort for social tourism that is creating substantial employment in the area.

5.8

Throughout Europe, there are different innovative tourism initiatives that seek, at least partially, an alternative to economic decline. A good example is that of traditional fishermen who offer tourists the opportunity to join them for a working day on board their boat. In this way, tourists experience professional and cultural contact, which has great tourist appeal and increases the income of an activity in decline.

5.9

The EESC supports the joint declaration of the European Federation of Trade Unions in the Food, Agriculture and Tourism Sectors (EFFAT) and the Confederation of National Associations of Hotels, Restaurants and Similar Establishments in the European Union (HOTREC) on Principles and Guidelines for Maintaining and Developing Tourism Jobs in the Rural Areas.

6.1

At the numerous meetings of the study group set up to prepare this opinion and the successful hearing held in Córdoba, it was possible to form not only the views mentioned above but also valuable conclusions and recommendations.

6.2

Tourism, as recognised in various Commission and EESC documents and multiple studies, is an economic activity of great importance not only from a strictly economic perspective, but also socially and environmentally. It is especially important to point out that it is a powerful, stable industry with good future prospects, which creates high-quality jobs if developed according to criteria of short-, medium- and long-term sustainability.

6.3

The socio-economic decline of areas in various European countries has different causes and characteristics, but in all these areas the fall in employment and absence of economic alternatives are both the most conspicuous and most distressing consequences for the local people, who are frequently forced to migrate in search of different alternatives to the traditional activities of the area. The depopulation of large agricultural or mining areas is the undesired result of structural economic change.

6.4

Sustaining the social roots of the local community is the main objective of all policies intended to achieve regional balance and therefore provide viable alternatives for these areas in decline. The European Structural Funds are essential instruments in this policy of maintaining social roots. Preserving or creating employment should be the main priority of such a policy of social integration.

6.5

For many different areas in decline, tourism can be a good alternative source of economic activity, with great potential for social, economic and employment development. Numerous experiences at all levels prove and confirm this.

6.6

However, areas in decline in search of a tourism alternative still have formidable long-term difficulties and obstacles to overcome. It should be noted in particular that such areas do not in principle ‘naturally’ lend themselves to tourism, but rather the opposite, since they sometimes lack tourist attractions and have dilapidated surroundings. It is very difficult for these areas to recover or create an environment where tourism can flourish. Therefore it is important to create products and services capable of generating demand.

6.7

Besides this basically unpromising situation, there are many different obstacles to the tourism alternative that areas in decline must face:

6.8

But it is precisely this possibility of a tourism alternative, together with the difficulties inherent in the process, which should motivate public institutions, social players and citizens in general to rise to the challenge of making this possibility a reality. European regional policy and other European policies on tourism, culture, employment, transport and infrastructure should work together to meet this challenge successfully. Ignoring the situation of areas in decline or failing to address the risks and difficulties of the tourism alternative does not seem a valid strategy. Alternatives other than tourism for areas in decline are both rare and difficult.

6.9

In order that the tourism alternative for areas in decline is viable, it should meet numerous conditions:

6.10

Clearly, the tourism products chosen in each area will vary according to multiple factors and it is difficult to identify which is ideal in each case, but as an example it is worth citing some activities that are directly or indirectly linked to tourism and can create an alternative tourist area: agri-tourism and rural tourism, complemented by craft industries, the production and sale of local food products, industrial tourism (for which we have described some examples of good practice), health tourism and cultural tourism. Institutional support for rural tourism is essential for its long-term viability.

6.11

The types of businesses developing tourism products and activities in areas in decline are no different to other tourism businesses, but the following should be noted:

6.12

In order to ensure the viability of tourism businesses set up as alternatives in areas in decline, the creation of diverse and complementary activities, capable of combining for a common goal, is vitally important; this would develop an authentic ‘tourism alliance’ in which each business should see itself as part of an overall tourist product. Thus, the alliance of gastronomy, culture, nature, accommodation and, in short, all those economic activities aimed at attracting tourists, whether public or private, must be coordinated. This type of alliance, that is sometimes, although not always, used in traditional tourism, is invaluable in the case of new developments in areas in decline, because of the extremely difficult and precarious situation for businesses in such areas. The idea of the ‘tourist circuit’, involving a whole range of businesses, is one way of putting such an alliance into practice. At all events, cooperation between businesses should be encouraged by all economic and social operators.

7.1

The socio-economic recovery of European areas in decline is an important and difficult challenge for public institutions at all levels, socio-economic players and citizens, but it is a challenge that cannot be ignored if we are to avoid abandoning some regions to depopulation and their local communities to poverty or migration. The tourism alternative is only one of the possibilities, but its added value, its capacity to create jobs and its future prospects make it the preferred choice.

7.2

In fact, both European policies and the documents drawn up by the institutions emphasise this: the European Commission, the Parliament and the European Economic and Social Committee encourage and promote this alternative, but financial support from the Structural Funds for initiatives in this field are still insufficient and are increasingly difficult to use as instruments of economic regeneration. It is proposed that the Commission undertake a pilot project, based on successful experiences, to study better ways of using the Structural Funds for the promotion of tourism in areas in socio-economic decline.

7.3

Other institutions such as the World Tourism Organisation (WTO) and the International Bureau of Social Tourism (BITS) are carrying out initiatives of great strategic value in that they strengthen and foster promotion and communication networks, which are vital to the viability of tourism projects in areas in decline.

7.4

Within Member States, coordination of initiatives at different levels of administration — national, regional and local — should be stepped up. Tourism observatories, which analyse the sector's possibilities and propose different integrated tourism development strategies and policies, are effective instruments for analysis and action.

7.5

The EESC, through various opinions relating to tourism, is promoting European policies focused on the creation of a European tourism model, not necessarily based on regulations but on values and principles of sustainability, environmental protection, quality of services, products and employment, consumer safety, public-private cooperation, accessibility for all and promotion of local heritage, cultural and other values to ensure that tourism in Europe and all countries respects and is underpinned by the principles of short, medium and long-term sustainability. This opinion is an addition to this strategic and policy-oriented body of work and assesses the positive contribution of tourism to the socio-economic recovery of areas in decline as a basic element of the European tourism model.

8.

The European Economic and Social Committee will publish and distribute this opinion, which will be the EESC's contribution, entitled ‘The Córdoba declaration on the contribution of tourism to the socio-economic recovery of areas in decline’, to the European Tourism Forum 2005, to be held in Malta in October 2005.

31.1.2006   

EN

Official Journal of the European Union

C 24/11

1.1

Directive 2004/18/EC of 31 March 2004 regulates and guarantees the coordination of the procedures for the award of public works contracts, public supply contracts and public service contracts. This directive consolidated the previous directives on the subject, modifying their content and creating a simplified legal framework.

1.2

In defining its scope, the directive lays down a series of thresholds below which it does not apply; it also provides for a specific procedure through which these thresholds can be periodically realigned.

1.3

The thresholds in the directive are expressed in euro, while those defining the international obligations of the Union on public contracts in WTO terms are expressed in Special Drawing Rights (SDRs). Article 78 of the Directive allows the Commission to check and modify the thresholds if the development of SDR/euro exchange rates makes it necessary. Even when a revision takes place, however, the level of the thresholds should remain essentially the same.

1.4

The Commission had decided in particular to make no change in the thresholds of EUR 249,000 applying to public service contracts subsidised to a level of more than 50 % by the awarding authorities [Article 8b)], and to public supply contracts awarded by the awarding authorities non included in Annex IV (that is to say awarding authorities other than central government authorities).

1.5

Owing to a clerical error, Article 78 provides that contracts subsidised to a level of more than 50 % by the awarding authorities, mentioned in Article 8b), shall be realigned on a different value, which in fact reduces their level.

2.1

The present draft directive simply calls for the correction of the clerical error. By correcting Article 78, consistency is restored between the threshold given in Article 8, which regulates the scope of the directive, and the mechanism for revising the thresholds provided for in Article 78 itself.

2.2

The EESC can only endorse a modification which restores consistency to the regulatory text.

2.3

The above is particularly important in view of the next deadline for revising the thresholds under Article 78(4), namely November 2005.

31.1.2006   

EN

Official Journal of the European Union

C 24/12

1.1

The Commission has presented a proposal for a regulation concerning the rights of persons with reduced mobility when travelling by air, with the aim of guaranteeing disabled persons and persons with reduced mobility equal opportunities in air travel compared to the rest of the population.

1.2

The Commission considers travelling by air as one of the tools for the integration and the active participation of persons with disabilities in the economic and social life.

1.3

The Commission places the initiative in the context of its non-discrimination policies, expressly confirmed as a general principle in the Article 21 of the Charter of Fundamental Rights of the European Union. Furthermore Article 13 of the EC Treaty enables the European Community to combat discrimination on the grounds of inter alia disability.

1.4

The regulation aims at ensuring that the opportunities opened by the creation of a single market in air transport should equally benefit to all passengers.

1.5

The proposal of the Commission constitutes the first legislation targeting specifically disabled people in the European Community law, although its effects will be positive on many elderly people, and passengers with temporary reduced mobility.

1.6

The proposal, aimed at preventing unfair treatment, is based on some fundamental principles:

1.7

Voluntary agreements taken by air carriers and airports in the last years have to be considered as a first positive step towards eliminating unfair treatment and ensuring quality in assistance for people with reduced mobility. Nevertheless these agreements have proven to be insufficient, and there is a need for defining clear responsibilities and rules in this key area.

2.1

The Committee welcomes the initiative of the Commission and fully supports the fundamental principles of the proposal.

2.2

The regulation contributes clearly to removing barriers to air transport for people with reduced mobility. It is also connected to the recent regulation adopted by the EU on compensation and assistance to passengers for denied boarding, cancellation, and long delay of flights (1), which contributes to strengthening passengers' rights.

2.3

Furthermore the EESC has advocated in its recent opinions (2) for the need of legislation beyond employment, tackling barriers faced by disabled people in other areas of life. Mobility is a key area for social inclusion of people with disabilities.

2.4

The EESC regrets that the legislation does not include provisions for accessibility for disabled people of airport infrastructure, vehicles used for transport of passengers, and airplanes. The EESC notes that only such measures will ensure equal opportunities in air travel. The EESC invites the European Commission to put forward further legislation in order to ensure that all new infrastructure and transport equipment is accessible, and to ensure that existing barriers are gradually dismantled.

2.5

The Committee supports the general framework of the regulation and endorses in particular the provision for one single centralised service managing body at airports, as such a system is the most reliable way to ensure accountability, high quality and consistent assistance for passengers with reduced mobility.

2.6

The Committee considers nonetheless that some provisions should be reinforced, in order to best meet the general objective.

2.7

The Committee also insists on the need for a wide consultation of representative organisations within civil society, in order to ensure that the rights of all citizens, including those with reduced mobility are guaranteed in the air transport sector. Furthermore in order to ensure the best implementation of the regulation, it is important to ensure that a dialogue — comprising safety standards — is established between airports, service providers, airlines, and representative organisations of disabled people, including people with reduced mobility within the Airport Users Committee.

The Committee welcomes the fact that assistance will not be charged to people with disabilities, but disagrees with the proposal that assistance should be financed in such a way as to spread the burden equitably over all passengers, as stated in recital 7 of the EC draft regulation. The Committee restates that the charge of assistance must be shared among the air carriers using an airport in proportion to the number of passengers that each carries to and from that airport, and that it should not in any case lead to an increase of air fares paid by passengers.

2.8

The Committee notes that the derogation from the main principle in Article 3 — the prevention of refusal of carriage — provided for in Article 4, by which denied boarding is allowed in order to meet safety requirements, should be further clarified in order to prevent arbitrary denials. A framework should be defined at EU level specifying and defining safety requirements either through an annex attached to this regulation or through an implementing regulation. Currently such rules are defined by carriers or by legislation and as a consequence are very diverse and sometimes contradictory. The proposal by the European Commission to have safety requirements defined by national legislation would not solve this problem. In addition information on safety requirements should be made publicly available to all passengers, and not only upon request.

2.9

The Committee also notes the lack of an explicit provision obliging the airline to reimburse or re-route and take care of a person that has been denied boarding pursuant to the regulation, in a manner similar to the one provided in the regulation on compensation and assistance to passengers for denied boarding, cancellation, and long delay of flights.

2.10

The Committee also highlights the need to reinforce provisions on the obligation to provide assistance mentioned in article 5. The responsibility of the airport managing body should be extended also to passengers transferred or in transit through an airport as long as they have given 24 hours notification. The current wording of the proposal — make all reasonable efforts — is not satisfactory. However, exceptional circumstances, independent of the managing body, can be taken into account.

2.11

The Committee takes the view that all European airports should set consistent, high quality standards, for passengers with reduced mobility beyond those established in annex I of the regulation. The two million passengers threshold in the current proposal would exempt a significant number of European airports from this main obligation. In addition, the Committee believes that for small airports below one million passengers per year quality standards — adapted to their size — have also to be established at local level in close cooperation with organisations of disabled people, including people with reduced mobility.

2.12

The EESC also points out that disability awareness training of adequate staff is necessary in order to ensure adequate assistance to the person's needs and quality. The application of new technologies (e.g. short message services (SMS) or pagers could also facilitate transfer of passengers with reduced mobility (such as people with hearing and visual disabilities).

2.13

Consideration should be given to the need for a simple procedure for notification of assistance which should be also free of charge. Such notification happens as a general rule when tickets are reserved, and is received by airline companies. It is therefore essential that there is a reliable information transfer from airline companies to airports, in order to ensure the best quality of services. A confirmation code should be given to the passenger when notifying the need for assistance. Moreover, in case of dispute, the burden of proof concerning non-notification should rest with air carriers and/or the tour operator responsible for the reservation.

2.14

Furthermore accessibility requirements should be taken into account in notification procedures. Alternative modes of communication: telephone and internet should be available. Internet web-sites should be WAI-compliant (3) and telephone notification should be free of charge.

2.15

The EESC also considers that a reference should be inserted in the text of the regulation to Directive 95/46/EC on the protection of individuals with the regard to the processing of personal data and on free movement of such data, in order to ensure respect to privacy, that the information requested is limited to the purposes of carrying out the obligations of assistance set in the regulation, and that it shall not be used against the passenger requiring the service.

2.16

The Committee is concerned that the designation of different bodies at Member State level responsible for complaints may prevent effective infringement procedures and access by passengers. The EESC highlights the need for an easily accessible body for receiving complaints, monitoring implementation of the regulation and the enforcement. The EESC believes that one single body in each Member State could be responsible for these matters in order to provide for a less complex system than in the current proposal. Given the internationalisation of air travel, and the increasing number of passengers travelling between countries different than their country of residence, the EESC considers appropriate the establishment of a European-level body.

2.17

The EESC argues for the need for persons with reduced mobility being entitled to full compensation in case of damaged or lost mobility equipment. The important consequences to the mobility, autonomy, and security of the passenger must be duly taken into account. The EESC also considers that the responsibility for ground handling of mobility equipment should be attributed to the air carrier, in order to ensure consistency with the International framework for air carriers liability, as established by the Montreal Convention.

2.18

The Committee also would like to point out the need to establish firmly in the regulation clear responsibilities and liabilities in case of accident or mishandling of passengers needing assistance whether at the airport, or when boarding the aircraft in line with the Warsaw Convention as amended by the Hague and Montreal Conventions (4).

2.19

The EESC would also like to address some issues relating to assistance on board aircrafts. The EESC proposes to delete the proposed limitation of carriage of guide dogs to five hours as this limitation does not exist in practice. The regulation should also include a requirement on carriers to inform on restrictions on carriage on board of mobility equipment. Provisions on the accessibility of information concerning flights should be extended to safety measures.

2.20

The EESC is also concerned that the regulation does not tackle all obstacles to air travel. In particular, it is crucial that all new airports are accessible for persons with reduced mobility and that existing airports gradually eliminate barriers to equal access.

2.21

Furthermore the EESC would like to recommend air carriers when buying or chartering new aircrafts to choose those that meet accessibility standards.

3.1

The EESC supports strongly the proposal, but recommends a number of changes detailed in Part 2 in order to ensure greater consistency and effectiveness to the need for equal opportunities for disabled passengers and passengers with reduced mobility when travelling by air.

31.1.2006   

EN

Official Journal of the European Union

C 24/15

1.1

Safety oversight is regulated worldwide in the framework of the 1944 Chicago Convention on International Civil Aviation and is based on standards developed by the International Civil Aviation Organisation created by that Convention. In essence, air carriers are supervised, concerning in particular their compliance with safety requirements, by their home country.

1.2

Outside the EU, safety levels depend on the effectiveness of oversight procedures applicable in third countries. In order to ensure a high level of aviation safety of all aircraft flying into, out or within the Community, the European Parliament and the Council adopted recently Directive 2004/36/EC (1) on the safety of third country aircraft using Community airports, which provides for a harmonised system of inspections of foreign aircraft when they use European airports. Besides, this Directive provides for the exchange of information between the Member States and the possibility to extend to the whole Community measures taken by one Member State against a third country aircraft or operator not complying with international safety standards.

1.3

In summary, the ‘SAFA’ Directive obliges Member States to put in place a mechanism to collect information enabling them to identify potentially unsafe operators.

1.4

The accident in Sharm-el Sheikh and those accidents which occurred in 2005 indicate that stringent rules are needed.

1.5

To make ramp inspections obligatory and to oblige Member States to participate in a wider exchange of information and apply common measures decided on the results of these checks. The Commission should provide a European list of airlines with safety problems.

1.6

To carry out random checks in the simulator of the flight crew, flying into European airspace to see that they are competent flying in congested air spaces.

1.7

Passengers must have access to the name of the operator at the time of booking from an airline website or travel agent and to be informed before travel if there is a change, e.g. wet leased third party aircraft. They should be entitled to a full refund if not satisfied.

1.8

The passenger should have access to the type, model and age of the aircraft, if desired. Also the country of registration.

1.9

Adequate rest periods for crew between flights should be insisted upon.

1.10

Adequate command of English or other European language depending on the destination, among the cabin crew to enable them to deal with passengers or emergencies should be mandatory.

1.11

Aircrafts barred from an EU country for safety reasons should also be barred from all.

31.1.2006   

EN

Official Journal of the European Union

C 24/16

1.1

Avian Influenza (AI) is a highly contagious viral disease of poultry, which can also spread to other animals and occasionally to humans. In recent months China has implemented a major vaccination programme after migrating wild geese were found killed by the virus in the western Qinghai province.

1.2

During recent outbreaks of the highly pathogenic form of the disease which occurred in several parts of the world, including some EU Member States, more than 200 million poultry have died or have been killed and destroyed with the aim to control the disease. This mass killing and destruction of animals has raised major ethical, animal welfare, economic, social and environmental concerns particularly among EU citizens.

1.3

The Influenza virus' ability to rapidly mutate and adapt poses a particular threat to animal and human health. Although current knowledge indicates that the health risks posed by the so-called Low Pathogenic AI (LPAI) viruses are inferior to the ones posed by the Highly Pathogenic AI (HPAI) viruses, the latter originate from a mutation of certain LPAI viruses, namely those of types H5 and H7, and can cause a disease in poultry with a very high mortality rate. Data available indicates that HPAI viruses of types H5 and H7 have been responsible for the vast majority of the cases of AI reported in humans and all cases of human deaths due to AI viruses. Although there is evidence regarding the transmission to humans of LPAI virus of type H9 arising from pigs and poultry, the actual threat to human health remains unclear.

1.4

Uncontrolled Avian Influenza outbreaks have the potential to lead to the emergence of a virus fully adapted to humans and ultimately leading to an Influenza pandemic with devastating health and socio-economic consequences for the world.

2.1

The first proposal sets out to repeal Directive 92/40/EEC on Avian Influenza and to replace it by a new Directive updating existing provisions.

2.2

The proposal includes a change in the definition of Avian Influenza to encompass LPAI as well as HPAI viruses. Control measures however will vary reflecting the different risks posed by LPAI and HPAI viruses.

2.3

The proposal introduces compulsory surveillance and control measures for LPAI. It is proposed that Member States be required to submit LPAI surveillance plans for early detection of LPAI for Commission approval so that the disease control measures can be rapidly applied and mutation of LPAI to HPAI is prevented.

2.4

It is proposed that positive identification of LPAI would prompt control measures, which would include the option of controlled slaughter when the risks are judged negligible. Stamping out would however not be excluded as a control measure when it would be deemed appropriate.

2.5

New and flexible provisions on the vaccination of poultry and other birds are envisioned. This includes the possibility of the use of both ‘emergency’ and ‘protective’ vaccination.

2.6

It is proposed to include domestic birds other than poultry such as those kept in zoos in provisions for the control of both LPAI and HPAI. It is proposed however that it would be a matter for Member States to decide on whether to adopt a vaccination or stamping out approach on the basis of risk analysis.

2.7

Provisions regarding the co-operation between veterinary and public health authorities in the case of detection of AI are proposed as a public health protection measure.

2.8

It is proposed to adopt a provision to introduce a rapid decision-making process by means of the Comitology procedures.

2.9

It is proposed in the second proposal to include the Community financial assistance provision to eradication measures relating to LPAI carried out by Member States.

2.10

It is also proposed that the Commission may examine the possibility of establishing an avian influenza vaccine bank.

3.1

The EESC welcomes this proposal as an important response to increasing outbreaks of Avian Influenza, the presence of the virus in wild birds, experience gained from the management of outbreaks and new knowledge on the ability of the influenza virus to mutate including LPAI virus.

3.2

The EESC is also very conscious of the potential risk to public health and animal health if new measures to control the disease are not adopted.

3.3

The EESC regards the new definition of Avian Influenza and the requirement of surveillance and control of LPAI as an important step in the battle against the virus and its potential negative impacts.

3.4

The EESC accepts the negative public reaction to a policy of mass slaughter of birds as the sole means of controlling Avian Influenza.

3.5

The EESC recognises the knowledge gained in relation to vaccination and welcomes the introduction of an emergency and protective vaccination policy as an additional tool in the control of Avian Influenza.

3.6

The EESC welcomes the proposal for the mandatory notification of Avian Influenza to public health authorities.

4.1

The EESC recognises the potential risks in the area of animal health particularly as a consequence of the EU's new borders following enlargement; the EESC therefore recommends that sufficient resources are made available by the Commission for the inspection and auditing of the implementation and transposition of relevant Directives.

4.2

The EESC understands the international dimensions of Avian Influenza and requests the Commission to seek equivalent control worldwide regarding Avian Influenza Controls.

4.3

While the EESC welcomes the financial package and the EU contribution when using stamping out as a means of controlling LPAI, it proposes that the compensation figure should increase from 30 % to 50 %.

5.1

The EESC supports the Commission's proposal, in the interests of the protection of animal and human health arising out of the rapidly mutating and adapting avian influenza virus.

31.1.2006   

EN

Official Journal of the European Union

C 24/18

2.1

The EESC considers the Commission's proposal to be the corollary of the reform in the tobacco regime adopted in April 2004, which provided for the system of premiums and production quotas to be abandoned and for the new system of decoupled support to be established.

2.2

The EESC believes that for reasons of simplification following the 2004 reform and the discussions ongoing in the ‘direct aid’ management committee, it would be more useful and practical for the Commission to submit a proposal for a consolidated version of Regulation (EEC) No 2075/92 rather than recommending amendments to, and removal of, certain articles.

2.3

The EESC sees the proposal as a formal document, required for reasons of legal clarity and transparency. It is a move in the right direction and is accepted by the Committee.

31.1.2006   

EN

Official Journal of the European Union

C 24/19

1.

Under the terms of Community fisheries agreements with third countries, a new protocol is negotiated in good time before the expiry of the existing one so as to avoid any interruption in the fleets' activities.

2.

When the negotiations are completed, the Community and the third country sign the new text of the protocol and the annex thereto, together with an exchange of letters on the provisional application of the new protocol from a specific date. This provisional date is generally the day following the expiry date of the previous protocol.

3.

To validate the signing of all these documents, the Commission departments start the procedure for producing a formal proposal which is then submitted to the Council for adoption.

4.

This procedure comprises two strands:

5.

It may be several months before the Council adopts the formal proposal, with the decision being adopted some months after the provisional application date laid down in the exchange of letters, as the date on which negotiations end depends on the third country.

6.

In such cases it is not possible, during the intervening period from the provisional application date, to start taking advantage of the fishing opportunities provided for in the new protocol.

7.

The procedures and implementing rules which the Commission and the flag Member State are to follow for managing fishing by Community vessels under fisheries agreements, and for handling fishing licences with third countries, are governed by Council Regulation (EC) No. 3317/94 of 22 December 1994 (1).

8.

The present proposal seeks to add a subparagraph to Article 5(2) of Regulation 3317/94, which concerns the sending of fishing-licence applications. The new subparagraph would allow the Commission to process licence applications from Member States immediately and send them on to the third country without having to wait for Council adoption of the decision on provisional application of the new protocol.

9.

The Committee agrees that it is important to avoid any suspension of fishing activities. Bearing in mind that the method of allocating fishing opportunities used in the previous protocol would continue to apply, that account would be taken of the principle of relative stability, and that this should be without prejudice to the provisions adopted subsequently by the Council, the Committee endorses the Commission proposal.

31.1.2006   

EN

Official Journal of the European Union

C 24/20

1.1

The Commission has published a Green Paper to launch a consultation on jurisdiction, conflict of law and mutual recognition in international divorce matters. Its proposed scope of application would, however, be restricted to EU Member States (It should be noted that the Green Paper on Succession and wills adopts an approach that also includes persons and assets in third countries).

1.2

A number of international instruments are directly or indirectly relevant:

1.3

It would be pointless to deny the complexity of an issue that involves particularities specific to different religions and cultures that are deeply embedded in the collective consciousness but which have also undergone, as is the case for family law in general, profound changes over several decades. Nevertheless, within the European legal area and common area of freedom, and bearing in mind the free movement of persons, the European legislative authorities cannot ignore the fact that a significant percentage of marriages end in divorce, and that a growing number of them have an international character.

1.4

Ongoing developments in national family law stem mainly from the principles of democracy (parliament's right to enact laws), individual freedom and equality, and are matters of public policy at Community level and in all Member States. Thus there is a trend towards contractualisation in family law (same-sex marriages or civil contracts, divorce by consent, succession agreements, etc.).

1.5

These developments seem irreversible although their pace may vary. The cultural prevalence of religious ideas which may be deep rooted appears to affect the pace and substance of changes which may clash with ideas and rules that stem from long traditions, as well as with legal and social concepts and principles that reflect them.

1.6

At all events the Member States' national laws vary considerably in divorce and legal separation matters and with regard to the conditions for annulling a marriage and the consequences arising therefrom; one Member State does not recognise divorce (Malta). For this reason, the Green Paper (wisely) does not propose to harmonise substantive law.

1.7

Instead it recommends that legislation in divorce matters with an international (European) dimension be developed in two directions:

1.8

The provisions of the Brussels II Regulation on the choice of national jurisdiction and the mutual recognition of court decisions without exequatur are already applicable in divorce matters. The question is whether they suffice in their present form, and to what extent a State would be able to set domestic public policy provisions against the enforcement of a ruling delivered by a court of jurisdiction in another Member State applying different substantive law to that specific case (not necessarily its national ordinary law).

1.9

One major problem is the substantial differences between domestic rules on the admissibility of divorce applications with an international dimension. Cases might arise that were not admissible in any court in a given Member State. Such a situation would deprive the parties of their right of access to a court, which contravenes a fundamental right and is therefore unacceptable.

1.10

A rule on the attribution of jurisdiction is required to guarantee access to a court — but what form should it take?

1.11

The applicable law sometimes facilitates procedures, but it may also prolong and complicate them. It may impose restrictions on the grounds or conditions that may be invoked. If lex fori is to be the only applicable law then this could result in a ‘rush to court’. The initiating petitioner could choose the court and national law most favourable to his/her claim, while the other party might consider his/her rights to be vitiated by a system of law which did not necessarily satisfy his/her expectations if, for example, it had little or no connection with the matrimonial law or nationality of the spouses.

1.12

Should it be permissible to transfer the case to another jurisdiction if the respondent alleges that there are stronger or equally valid factors connecting the case with another court, or if there are few or no objective factors connecting the case with the court first petitioned and the substantive provisions it applies to such a case?

1.13

The transfer option should be allowed (but avoiding a case being referred back and forth between different jurisdictions) and should be decided within a reasonable timeframe (urgency/procedure) to prevent tactics designed to postpone an examination of the facts. The parties are entitled to a final decision within a reasonable period of time even in contentious divorce cases.

1.14

The national court will apply either its domestic common law or national rules of international private law. The question (not broached in the Green Paper) of applying the rules of a third State (the law of the spouses' nationality for instance) is nevertheless important in cases where one or both spouses are third-country nationals — a common enough occurrence in the European Union.

1.15

The Committee welcomes the Green Paper's guidelines for future work and would recommend preventing the transfer of legal proceedings to a third country if one of the spouses is a Member State national, irrespective of the law of the marriage contract.

1.16

In addition to the recognition of divorces, the question of recognising annulments and legal separation should also be considered. National systems of law differ regarding the conditions for annulments and their consequences (especially for putative marriages). Moreover, even where a national legal system does not provide for divorce, all Member States must recognise on their territory not just the validity of a divorce obtained in another Member State but also all the legal, property and status consequences thereof.

1.17

The Hague Convention criteria for attributing jurisdiction are in order of importance: the place of habitual residence (domicile in common law) of the petitioner, or the continuous residence of the petitioner for at least one year in the country where he/she institutes proceedings (2), the last place where the spouses habitually resided together prior to the institution of proceedings, and the nationality of either or both of the spouses.

1.18

Regulation 2201/2003 (8th Recital) provides that ‘As regards judgements on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties and should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures.’ Nevertheless, it cannot be denied that the financial and other consequences of divorce may vary according to which court has jurisdiction or which law applies, and that couples will be able to take this into account when they choose a court.

1.19

Furthermore, national courts' final judgements should be automatically recognised throughout the European Union without the need for any further validation procedure or appeal against enforcement (3). The certificate issued to facilitate enforcement should not, therefore, be subject to appeal.

1.20

General jurisdiction lies with the territory (the Member State or part of the Member State in the case of the United Kingdom, where different rules apply in England and Wales, Scotland, Northern Ireland, and Gibraltar). The Regulation takes up the Hague criteria in practically the same order and adds a further criterion: in the event of a joint application, either of the spouses' habitual places of residence. With regard to nationality, it should be the same for both spouses if the application is filed in the country of origin, irrespective of the actual place of residence or domicile of either spouse. The required length of residence is reduced to six months if the petitioner's nationality is that of the State of residence.

1.21

With regard to residual jurisdiction, Article 7(2) provides that a petitioner who is a national of a Member State may file his/her petition in his/her Member State of residence in accordance with the rules of jurisdiction applicable in that State if his/her spouse is a national of a third State or does not have his/her habitual residence (domicile in common law) in a Member State. However, this could give rise to a positive conflict of jurisdiction with a court in a third country petitioned by the other spouse. Furthermore, if no Member State court was competent, but that of a third country was, and one or both of the ex-spouses were nationals of a Member State or had established their habitual residence there and wished to have the foreign judgement recognised by all the Member States or at the very least in their respective countries of nationality or residence, they would be subject in these countries to the law applicable to foreign judgements or the mutual recognition provisions of any international agreements: should Brussels II be reviewed in this respect for nationals of a Member State?

1.22

Thus the Community Regulation under consideration lays down criteria for attributing jurisdiction that are more numerous and explicit than the provisions of the Hague Convention, and the criteria set out in the Regulation should therefore form the basis for the criteria to be laid down in the specific regulation on divorce (e.g. reference to these provisions and to those on mutual recognition of judgements).

1.23

However, neither the Hague Convention nor the Brussels II Regulation lay down provisions for the law applicable to divorce; the Regulation's scope of application is restricted to divorce, legal separation and annulment proper, and it does not address the grounds for dissolving a marriage or the consequences thereof. The latter remain within the scope of the applicable national law.

1.24

It should be noted, for instance, that approximately 15 % of applications for divorce, legal separation, or annulment in Germany have an international dimension. The number of divorces with a European dimension in the Member States is not known.

2.1

At present, the conflict-of-law rules applied are the national rules of the Member State of the court petitioned. As a result, the law applied in identical circumstances may differ considerably, depending on the country where proceedings have been instituted.

2.2

The Green Paper gives a number of well-chosen examples on this subject. Some of these examples concern jurisdiction — cases where negative conflicts and consequent denial of rights could arise — whereas others deal with the diversity of the approaches adopted. The outcome might fail to meet the expectations of either or both of the spouses. In any case, this leads to a certain degree of legal uncertainty and lack of predictability, and in some cases, could result in ‘forum shopping’ and ‘a rush to court’ due to the litis pendens rule of the Brussels II Regulation (the first forum before which a case is brought will have jurisdiction provided there is a connecting factor).

2.3

The problem arises mainly when the spouses share neither nationality nor residence, or if they have the same nationality but reside in States of which they are not nationals.

2.4

The Committee agrees that, in such situations, the parties should be granted a degree of latitude in choosing the applicable law. Alternatively, respondents should be allowed to invoke their expectations regarding applicable law or request that the case be transferred to another jurisdiction that has the most objective links with the marriage. Where the petitioner chooses a jurisdiction and the ordinary national law that it applies, and where the defendant chooses another competent jurisdiction or another applicable law, the preliminary ruling on jurisdiction or relevant law should be given by the court of first instance before which the petitioner first brought the proceedings and be dealt with as a matter of urgency.

2.5

In cases where the only connecting factor is the nationality of one of the parties, the regulation requires jurisdiction to be assigned to the courts of the country of habitual residence, where the applicable law might not, however, correspond to the parties' shared expectations (for instance, they might wish to apply the law of a country which has closer links with the marriage).

2.6

The parties' freedom of choice should therefore play a role, and the rules should not be based exclusively on mechanical application of connecting factors. For instance, a choice between the law of nationality and the lex fori could be allowed, but without the right of transfer.

2.7

Regarding canonical annulments granted by ecclesiastical courts, some Member States have declared that they submit such decisions for recognition to their civil courts on the basis of a concordat or convention with the Holy See (Italy, Portugal, Spain, Malta (4)). Canonical annulments could come into conflict with the domestic laws of other Member States because these countries do not recognise the canonical grounds for annulment, or for procedural reasons (5).

2.8

Where such annulments come into procedural or substantive conflict with domestic public policy or with the European Convention on the Protection of Human Rights and Fundamental Freedoms, the State where proceedings have been instituted must refuse exequatur or recognition of the ecclesiastical decision. The petitioner should then be able to institute standard civil annulment, separation or divorce proceedings. Otherwise, the only remedy available would be to appeal to the European Court of Human Rights in Strasbourg, which would unduly prolong procedures.

2.9

Although the number of cases of negative conflict of jurisdiction may be relatively low, the Committee considers that a Community initiative is justified if such instances would result in the violation of a fundamental right, i.e. the right of access to a court with jurisdiction to grant and settle divorce, legal separation or annulment.

2.10

This should therefore lead to an acknowledgement of the need to harmonise rules on conflict of law and jurisdiction in order to prevent such denial of a right.

2.11

However, these rules should include a public policy reservation with regard to the recognition or exequatur of a court judgement with a European interest delivered in a third country if that judgement adversely affects a fundamental right of one of the parties recognised under European law or breaches other imperative provisions of domestic public policy that the court is automatically bound to invoke.

2.12

Nor should Community law require all Member States to recognise a divorce, annulment or legal separation granted in a third country and concerning residents of the Union who do not have the nationality of a Member State without prior exequatur procedure if another Member State has already accepted such a judgement on the basis of a bilateral agreement with that third country (6).

2.13

The Committee believes that prorogation of jurisdiction should be allowed in cases of joint petitions for divorce, provided that there is a link with the court of choice. A notarial act could be required for the joint application for prorogation.

2.14

The Committee considers that a comparative country-by-country study should be carried out into the actual consequences of divorce, as regards parental rights, custody of minors and assets; these factors should not be overlooked if there is a possibility of a ‘rush to court’. In any case, it would be difficult to do as the Green Paper does and address the issue of divorce without any consideration of the family and property consequences thereof, which can differ from one country to another depending on the applicable law or the prevailing case law of national courts (e.g. in the area of custody and parental responsibility).

2.15

If they have not already done so, the Member States should be asked to consider all available opportunities for introducing alternative methods of conflict resolution, such as mediation (7), in the area of divorce, separation and annulment with a European dimension. This would facilitate access to justice, and would help shorten the proceedings for the parties involved.

2.16

The Committee is keeping an open mind on an issue that is important for citizens and their mobility; it will follow the result of the consultations undertaken by the Commission and any more specific proposals for regulations that may emerge afterwards; a revamp of the New Regulation Brussels II or a specific divorce regulation are possibilities. The Committee would also like to know more precisely, broken down by country, the number of applications for divorce with a Community dimension, the number of cases of negative conflicts of jurisdiction and other relevant information. In this way it will be able to examine more thoroughly the problems surrounding any future proposals for legislation on the competence and applicable law in divorce matters.

31.1.2006   

EN

Official Journal of the European Union

C 24/25

1.1

Since their adoption, Regulations Nos. 1408/71 and 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community have been successively amended to accommodate the changes that these schemes and the benefits they provide have undergone in the course of time.

1.2

These changes basically consist of bringing the Regulations into line with the legislative amendments that have been made in the Member States and adapting them to the successive rulings of the European Court of Justice. Consequently, the proposed Regulation now submitted for the Committee's consideration aims to reflect the changes that have taken place in national legislation, principally in the new Member States, and to complete the simplification of procedures on receiving medical treatment abroad, extending this modification to the procedures regarding benefits for eventualities arising from accidents at work and occupational diseases.

1.3

The last modification made to the two Regulations was produced by Regulation 631/2004 (1), which introduced the aforementioned changes to the procedures for receiving medical treatment in another Member State. The Committee delivered an opinion (2) on the regulation at the draft stage.

1.4

Nevertheless, the most substantial change to the coordination of social security schemes in the EU Member States was made by Regulation 883/2004 (3) of the European Parliament and of the Council which, after six years of discussion in the Union's institutions, has been adopted and published in the Official Journal of the European Union. This Regulation, replacing Regulation No 1408/71, has not yet entered into force, pending adoption of its Implementing Regulation, which will in turn replace the current Regulation No 574/72.

The EESC delivered an opinion (4) on the proposal for a Regulation on the coordination of social security schemes when it was presented by the Commission.

2.1

The proposal presents modifications to two Regulations, firstly Regulation No 1408/71 and secondly Regulation No 574/72 establishing the implementing procedures of the former. The two sets of amendments are not related to one another, because they arise from different legal aspects, as stated in point 1.2 of this Opinion.

2.1.1

As regards Regulation No 1408/71, modifications are made to several of its annexes. These address particular situations in the different Member States, which must be referred to specifically in these annexes if the citizens of those countries are to benefit accordingly.

2.1.2

As regards Regulation No 574/72, the modifications simplify the text and reduce the current administrative burden when healthcare is received for accidents at work or occupational diseases in another Member State, applying the same criteria for simplifying procedures for receiving general healthcare as set out in Regulation No 631/2004.

3.1

The Committee welcomes the content of the proposal because it considers that this pursues the approach of improving and simplifying the procedures aimed at better coordination of social security schemes in the European Union. Any change that benefits EU citizens and improves their relationship with the public authorities in the Member States will always be welcomed by this Committee.

3.2

We also welcome the proposed regulation because it specifically promotes one of the four freedoms on which the European Union was originally founded — the free movement of workers and now, and by extension of this right, the free movement of those persons affected by these rules. The Committee must therefore once again call for the various Union and Member State bodies to move ahead with eliminating all existing obstacles, in order to create both a genuine area of free movement for persons within the Union's borders, and a real social right. We welcome the content of the proposal, because it constitutes a new means of promoting a fundamental right, which applies to all citizens.

3.3

The co-decision procedure, because of its lengthy nature, may result in significant changes to the content of the proposals. In an earlier Committee opinion (5), on a proposal for partial amendments to the two regulations, we expressed our views on the need to participate and to give our opinion in real time, especially when dealing with this type of proposal, which relates to changes in socio-occupational legislation. This view was ratified in another later EESC opinion (6), which argued that we should have the opportunity to comment on any changes made to texts during the decision-making procedure. For these reasons, we would restate the need to take account of the EESC's role in this type of procedure.

3.4

The situation described in point 3.3 has become even clearer with the adoption and publication of Regulation 883/2004 (7) on the coordination of social security schemes. The opinion (8) delivered by the Committee stated the need to monitor the progress of the proposal, given its complexity and the certainty of changes to the text during the legislative process. Four years after the opinion was delivered, the Regulation has been adopted without the EESC having again stated its views on the text.

Given the importance of these types of rules and the crucial importance of the EESC's opinion being heard in good time, the Committee calls for the consultation procedure to be adapted to make the role played by organised civil society in the Union's legislative procedure more effective.

Equally, and in order to explain the view expressed by the Committee in the aforementioned opinion, we believe an own-initiative opinion should be drawn up on the new Regulation No 883/2004 on the coordination of social security schemes, which will eventually replace the current Regulation 1408/71.

3.5

Similarly, the Committee considers that the consultative role of the Advisory Committee on Social Security for Migrant Workers, set up by Title V of Regulation No 1408/71 should be performed in exact compliance with the provisions of that regulation. This committee, formed principally of trade union and employers' representatives, is the forum through which socio-economic agents convey their views directly to the institutions, in the form of opinions or proposals, on the changes that need to be made to social security at Community level.

3.6

Article 90 of Regulation No 883/2004 states that Regulation No 1408/71 shall be repealed, except under certain circumstances, and Article 91 states that this Regulation shall enter into force on the twentieth day after its publication in the Official Journal. The second paragraph of the latter article states, however, that it shall apply from the date of entry into force of the Implementing Regulation.

For this reason, and given the forthcoming launch, in 2006, of the European Year of Workers' Mobility, the Committee calls on the Union's institutions and the Member States to ensure that the procedure for drawing up and adopting the future implementing Regulation is as speedy and effective as possible so that the provisions of the new coordinating Regulation can enter into force to replace the complex provisions that make up the current Regulation No 1408/71 at the earliest opportunity.

4.1

Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

4.1.1

Article 1 of the proposal amends annexes I, II, IIa, III, IV and VI of the Regulation.

4.1.2

In order to incorporate the changes that have taken place in Slovak legislation, an amendment is made to Annex I, section II, which refers to the personal scope of the regulation as regards the meaning of the term ‘member of the family’.

4.1.3

Due to changes in French legislation, an amendment is made to Annex II, section I, on special schemes for self-employed persons which are excluded from the scope of the Regulation.

4.1.4

In order to reflect changes to legislation in Estonia, Latvia and Poland respectively, amendments are made to Annex II, section II on special childbirth or adoption allowances that are excluded from the scope of the Regulation. This annex is also amended as regards Luxembourg, as a consequence of a ECJ ruling stipulating that special allowances for childbirth or adoption cannot be excluded from the Regulation and are exportable family benefits.

4.1.5

Due to various updates and adaptations to the corresponding legislation in Germany, Latvia, Poland and Slovakia, amendments are made to Annex IIa of the Regulation, concerning special non-contributory benefits.

4.1.6

In order to eliminate unnecessary points and thus simplify its content, amendments are made to Annex III.A concerning provisions for social security agreements that continue to apply despite the Regulation's provision on deleting them.

Amendments are also made for the same purpose to Annex III.B on the provisions of social security agreements which do not apply to all persons to whom the Regulation applies. The numbering is adjusted, and bilateral agreements that fulfil the conditions for being listed in the annex are included.

4.1.7

Due to an incorporation into the legislation of the Czech Republic, amendments are made to Annex IV.A covering national legislation under which the amount of invalidity benefits is independent of the length of periods of insurance.

For the same reason and with regard to the Czech Republic and Estonia, amendments are made to Annex IV.C, on cases where the double pension calculation may be waived as it will never lead to a higher result.

As a result of changes to legislation in Slovakia, an amendment is made to Annex IV. D on the benefits and agreements regarding the overlapping of benefits of the same kind to which persons are entitled under legislation in two or more Member States.

4.1.8

As a result of changes to legislation in the Netherlands, amendments are made to Annex VI on particular methods for applying the legislation of certain Member States.

4.1.9

The changes made to the various annexes to Regulation No 1408/71 serve a number of purposes that the Committee wishes to highlight.

Firstly, they simplify the wording of the text, thereby making it easier to implement and to understand. Progress is thus made along the lines laid down by Regulation No 883/2004 on the coordination of social security schemes, the aim of which is to simplify and update this coordination whilst complying with national social security legislation. The Committee therefore supports these amendments.

Secondly, some national laws have introduced new allowances for certain circumstances, reflecting advances in the social regulations of these States. The Committee therefore wishes to express its satisfaction at any advances made in social rights in the different Member States, but regrets that citizens of the countries involved in the most recent enlargement should be subjected to specific administrative obstacles.

4.1.10

Lastly, the Committee is of the view that Annex II, Section II of the Regulation should be deleted. Member States should take account of the case-law of the Court of Justice stating that childbirth and adoption allowances are not special allowances but family benefits and thus exportable. We would like to see the Member States accepting this legal reality, before the Court of Justice extends it to the Union as a whole, by means of judgments.

4.2

Council Regulation No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71.

4.2.1

Article 2 of the proposal amends four articles of the Regulation, all referring to healthcare in the event of accidents at work or occupational diseases.

4.2.2

Article 60(4) and (5) on benefits in kind in the case of a stay in a Member State other than the competent State are deleted. Notification procedures that are not in practical use are deleted.

The Committee agrees with any measure that simplifies or eliminates pointless bureaucracy.

4.2.3

Article 62, on benefits in kind in the case of a stay in a Member State other than the competent State, is replaced. The introduction of the European Health Insurance Card eliminates unnecessary procedures which would in any event be resolved between the competent Member State institutions and not by the individual, and the wording remains the same as Article 21 of the Regulation as amended by Regulation No 631/2004.

The Committee supports any amendment that improves citizens' access to the benefits to which they are entitled.

4.2.4

Article 63(2) on benefits in kind for workers who transfer their residence or return to their country of residence, and for workers authorised to go to another Member State for medical treatment, is amended. The amendment is required because of the reference made in this article to Article 60(5) and (6), deleted by this proposed Regulation itself.

4.2.5

Article 66(1) on disputes concerning the occupational nature of the accident or disease is amended to delete the reference to Article 20 of the Regulation, which was itself deleted by Regulation No 631/2004.

4.2.6

The Committee supports all the amendments made, because they improve the Regulation by simplifying its content and cutting through red tape, insofar as these changes facilitate citizens' contacts with public administrations.

5.1

The Committee broadly welcomes the proposed Regulation, subject to the comments made in this opinion. We feel that simplifying and improving the text of Regulations Nos. 1408/71 and 574/72 to encourage the freedom of movement of persons within the Union's borders is to be welcomed, but believe it would be even more useful for Regulation No 883/2004 to enter into force, because in itself it brings comprehensive and far-reaching simplification to the way Social Security Schemes are coordinated.

5.2

Since the Committee has not been able to consider the final wording of the lengthy legislative process leading to Regulation No 883/2004 referred to above, we believe that an own-initiative opinion on the matter should be drawn up forthwith, before the legislative process for the new implementing regulation that the Commission is now completing gets underway.

5.3

We in the Committee wish to urge the Commission to conclude its proposal for an implementing regulation as swiftly as possible, and the Council and the European Parliament to take rapid action on the legislative process for adopting the regulation, in order to prevent any repetition of the delay experienced during the processing of Regulation No 883/2004, especially given that 2006 is to be designated Year of Mobility for Workers.

5.4

As regards the envisaged reforms to the different annexes to Regulation No 1408/71, the Committee calls for the reform referring to Section II of Annex II on special childbirth and adoption allowances to be deleted as soon as possible by agreement with the Member States, which still retain the right to derogate.

31.1.2006   

EN

Official Journal of the European Union

C 24/29

1.1

The European Economic and Social Committee reaffirms its keen interest in seeing much more tangible progress in the promotion of gender equality, as it has repeatedly stressed in its recent Opinions on this issue (1). Gender equality is — and must remain — a priority in the European Union's policies. Although more effort has been invested into promoting gender equality in the EU in recent years, women remain disadvantaged in most areas of activity (2) — this must change. Gender discrimination against men also exists, although to a lesser degree, and this must also be resolved. A series of problems rooted in discrimination (on grounds of sexual orientation, age, health, disability, ethnicity and so on) and exacerbated by the gender dimension also fall within this area.

1.1.1

Many different types of gender inequality exist; they occur throughout the EU and it is vital that they are recognised, documented, collected and analysed, that lessons are drawn from them at the Community level and that solutions are sought.

1.1.2

The EESC, therefore, welcomes every effective instrument which helps to ensure that gender equality will become a reality.

1.1.3

The EESC supports the proposal to establish a European Institute for Gender Equality, (hereinafter ‘the Institute’) believing it will become an effective instrument — with great potential — for supporting the efforts of the EU and the Member States to make progress in promoting gender equality in both laws and in practice.

1.2

The EESC agrees with the reasons behind the creation of an independent institute and with the decision that the Institute must not replace or weaken the present tried and tested specialised agencies, or those in the process of being established, at Community level (3). Nor must establishment of the Institute weaken application of the gender mainstreaming principle in all the bodies, policies and programmes of the Community: the EESC is convinced that it will, on the contrary, reinforce this principle.

1.3

The EESC thinks that the Institute will derive authority from its objectivity, neutrality, independence, expert experience and ability to concentrate relevant information in one place and could become an important instrument for a wide spectrum of users. Assuming gender mainstreaming is applied comprehensively, the Institute will serve a most varied ‘clientele’ — from the most diverse strata of civil society to the EU's policy-making bodies.

1.3.1

Moreover, the Institute will operate not only within the EU, but within a broader European context, including preparation for further EU enlargements, and internationally. It will also serve, therefore, to cultivate multicultural links and exchanges.

1.4

The EESC thinks that in view of the ambitious goal and tasks that await the Institute, its powers and responsibilities should be more clearly defined in relation to its functions of research, information, public education and so on. The goals of data collection and processing need to be specified so that the Institute can play its full part in the EU policy-making process. In this context, it should be pointed out that all the Community's bodies have to rely on the statistical resources of the individual Member States. The Institute should be able to put forward its views on planned projects. The Institute should also have an educational role in issues of gender mainstreaming and have the possibility to submit its views on Community initiatives and activities in the field of gender equality.

1.4.1

The EESC takes the view that specifying the Institute's goals and tasks would substantiate its importance and demonstrate the need for it to have the necessary resources to fulfil these aims.

1.5

The Institute must have a strong moral authority and it is absolutely essential that it operate transparently and have truly effective links with relevant groups in civil society (set out in Article 10(1)a)-c)) which have a wealth of analytical experience and expertise on gender equality and can also directly reflect the needs of the EU's citizens. The EESC strongly recommends, therefore, that civil society representatives have more places on the Institute's Management Board (see points 3.7.2 and 3.7.3 below). In this context, the EESC once again highlights the important role of the social partners at various levels in solving the problems of gender equality in the labour market.

1.6

At the same time, the EESC strongly urges that representatives of Europe's social partners and the relevant representative NGO have the same standing on the Management Board as the other members — i.e. that they have the right to vote (see also point 3.7.4).

1.7

The EESC considers it essential that funding for the Institute should be sufficient for it to fully carry out its mission alongside other Community agencies or programmes also dealing with gender equality, and not at the expense of these.

1.8

The Proposal for a Regulation does not state where the Institute will be based. The EESC, however, favours it being set up in one of the countries that joined the EU in 2004. Some of these countries have already expressed an interest in hosting the Institute, and this would also satisfy the need for a balanced decentralisation of institutions around the EU and would offer the opportunity for more direct contact with citizens of one of those countries and for learning more about its experience in the field of equal opportunities for men and women.

1.9

The EESC is convinced that close cooperation with the Institute will be of benefit to both parties and declares its readiness to collaborate with the institute on the basis of Community rules.

2.1

The European Commission issued its Proposal for a Regulation of the European Parliament and of the Council establishing a European Institute for Gender Equality on 8 May 2005, and stated, inter alia, in its press release (4) that:

‘The Institute will be an independent centre of excellence at European level. It will gather, analyse and disseminate reliable and comparable research data and information needed by policy-makers in Brussels and in the Member States. It will have a documentation centre and a library which will be open to the public.

The Institute will stimulate research and exchanges of experience by organising meetings between policy-makers, experts and stakeholders and it will raise awareness of gender equality policies with events including conferences, campaigns and seminars. Another vital task will be to develop tools for supporting the integration of gender equality into all Community policies’.

2.2

The substantial period of time that separated the first impulse to create a European Institute in 1995 (5) and promulgation of the proposal for a regulation in May 2005 allowed expert and policy research to be conducted which has enabled a considered step to be prepared.

2.3

At its meeting of 1 and 2 June 2004, the European Employment, Social Policy, Health and Consumer Affairs Council unanimously declared its support for the establishment of the European Institute (6):

‘Delegations fully supported in principle the setting-up of such an Institute, while stressing the importance of a structure that would bring added value but which would not duplicate existing activities in this area. The need for budget-neutrality was also mentioned’.

The Council mandated the Institute with:

2.3.1

The European Council subsequently invited the Commission to submit its proposal (7).

2.4

The decision to establish the Institute thus came after the EU's enlargement to include ten new countries and the EESC considers it important that it operate, from the outset, in the enlarged EU, which will enable it to take into account a greater variety of experiences, situations and know-how.

2.5

In its Opinion Beijing +10: Review of progress achieved in the field of gender equality in Europe and in developing countries (8), the EESC recently summarised the history and range of activities in the EU on gender equality. It draws attention to that Opinion and stresses the importance of realising that the need for expert reports, analyses and information and the quality demanded of these is growing due to broader application of the principle of gender mainstreaming, which the EESC warmly welcomes.

2.6

Practical experience reveals new and existing problems, directly related to gender issues, which the EU and its Member States face and which the Institute must address:

2.6.1

The EESC has already drawn attention in some detail in its Beijing +10 Opinion, to which it refers the reader, to a raft of areas where action should be taken (9).

2.7

As has been stressed above, the EESC is aware that gender mainstreaming is being applied more widely and continues to develop. For this reason, the EESC agrees that the task of concentrating the efforts of Member States and civil society stakeholders so that they can help Community bodies in these matters has to be conferred on an independent institution, which will increase the effect of synergy. The EESC also considers it important to ensure that the Institute and Community agencies complement one another and that the principle of gender mainstreaming will continue to develop within the agencies in close collaboration with the Institute. In the same way, cooperation with institutional mechanisms for gender equality must be the norm.

2.8

The EESC recalls that while the establishment of the Institute is a step forward, this does not rule out the need for further measures aimed at making progress in implementing equality of opportunity while meeting all the goals adopted in Community documents. It will be of the utmost important that the Institute actively contributes to the fulfilment of the Lisbon objectives on promoting growth and job creation.

2.9

The EESC is in favour of the Institute being established. However, it needs to get the best possible reception from civil society at European, national and local levels, without whose support it could not get off to a good start. The necessary resources must therefore be invested in this new institution to make it credible and trusted. This will enable it to successfully pursue activities of all kinds and attract the interest it deserves.

3.1

The EESC approves the legal basis on which the Institute is to be established, namely Article 141(3) and Article 13(2) of the Treaty establishing the European Union. It agrees with the reasons set out in the recitals, which also explain that the Proposal conforms to Article 5 of the Treaty.

3.2

The EESC also agrees that working with the existing infrastructure — foundations and other bodies — is consistent with the Council's desire to avoid duplication. The EESC notes that Recital 12 implicitly includes other institutions and authorities working within the EU, such as Eurostat. The EESC draws attention to the Communication from the Commission on the operating framework for the European Regulatory Agencies (10) and the Draft Interinstitutional Agreement on the operating framework (11) and notes that the Institute's place among existing institutions will also be defined in this context.

3.3

The EESC points out that the English title of the Institute (Art. 1) — The European Institute for Gender Equality — reflects its mission unambiguously and is open to the widest connotations (ethical, moral, aesthetic, sexual, etc.). However, we know from experience that the word ‘gender’ has no precise equivalent in a number of EU languages. Translations should therefore be worded to come as close as feasible to the original.

3.4

As far as the Institute's goals are concerned, the EESC thinks Article 2 should include a clear reference to promoting the principle of gender mainstreaming.

3.4.1

The EESC also considers that the Institute should be tasked with helping employers' and workers' organisations and other elements of organised civil society in their work on gender equality. This aim should be clearly stated and taken into account.

3.5

The EESC thinks the tasks in Article 3 are just as important as the goals and should be expanded as set out in point 1.4 of this opinion.

3.5.1

The EESC asks for social partners to be explicitly mentioned in Art. 3(1a). In this context it should be noted that the European social partners have recently adopted a Framework of Actions on Gender Equality.

3.5.2

The EESC stresses that the Institute's benefits will be more apparent if it regularly issues, in addition to the annual report, information related to achievements made under, for example, the Framework Strategy on Gender Equality. It should also publish, amongst other things, its work programme as well as its annual report (Art. 3(1e)).

3.5.3

The issues that the Institute deals with will also require appropriate working methods. These should be tailored to different types of gender inequality and discrimination, and so should use comparative methods (benchmarking), case studies, vertical (sectoral) data collection, gender budgeting, monitoring, etc. It goes without saying that the Institute must also collaborate with specialised agencies and institutions in this regard.

3.5.4

The EESC notes that (1d) of the same Article states that the Institute will conduct research in ‘Europe’, a reference to its broader operation within the EEA, as part of future enlargement and in the countries of the Council of Europe.

3.5.5

The EESC would want — in keeping with the objectives set out in Article 2 and the Recital — to add the national or regional level to Art. 3 (1g). This would make it possible to involve other stakeholders, such as local and regional governments, which have an important role to play in spreading awareness of gender equality issues among the public at large.

3.6

The EESC agrees with the Institute being independent of national bodies and civil society (Art. 5). It considers, however, that it should also be independent of the Community's institutions, which will enable it to take a more objective approach towards them. Not least for this reason, the EESC proposes increasing the number of civil society representatives on the Management Board to ensure the Institute's greater independence.

3.6.1

The EESC agrees with and supports the principle that the Institute will work freely and independently with institutions in the Member States. It thinks members of the Advisory Forum should be made responsible for obtaining and delivering information in time (see point 3.8.2 below). This could be a suitable role for bodies which are to operate in the Member States under the Directive to consolidate directives on equal opportunities (12).

3.7

As far as the Institute's bodies are concerned, the EESC appreciates the efforts to make the Management Board an operational body that can ensure the Institute reacts flexibly to changes and demands.

3.7.1

The EESC takes the view, however, that the Commission must only appoint members of the Management Board who are to represent the groups mentioned on a proposal from those organisations. This should be stated in Article 10.

3.7.2

The EESC stresses that if the Management Board is to be able to respond appropriately to needs — i.e. to reflect its responsibilities to the European Commission and the Member States — and if it is to receive appropriate feedback from civil society, Europe's social partners and the relevant NGO need to be effectively and visibly represented at the Community level, which has — as the Regulation puts it — a ‘legitimate interest in contributing to the fight against discrimination on grounds of gender and the promotion of gender equality’. Moreover, there is no reason why such an involvement of civil society representatives could not be proposed. Given that the national level of social partners will not be represented here, unlike in the Community's tripartite bodies, it is desirable at least in this way to guarantee the active involvement of social partners and the relevant NGO.

3.7.3

The EESC, therefore, urges that the number of members on the Management Board be increased. It would suggest raising the number to six members from each party (Council, Commission, social partners and relevant NGO at Community level), which would also enable the organisations mentioned in Art. 10(1) a)-c) to ensure equal representation of men and women when selecting candidates. It follows, therefore, that these organisations would have two seats each.

3.7.4

There is no reason why representatives of the social partners and the NGO should not have the right to vote. In order to better ensure independence, autonomy and objectivity of proceedings, the EESC appeals to the Commission to incorporate full voting rights for all representatives of employers, workers and the relevant NGO. This is consistent with paragraph 4, which states that ‘Each member of the Management Board, or in his/her absence his/her deputy, shall have one vote’.

3.7.5

The EESC considers that the directors of the European Foundation for the Improvement of Living and Working Conditions, the European Agency for Safety and Health at Work, the European Centre for the Development of Vocational Training and the EU Agency for fundamental rights might perhaps also be able to participate directly in the meetings of the Institute's Management Board as observers (Article 10(11)). The director of the Institute should likewise be able (on behalf of the Management Board and/or on the basis of a ‘memorandum of understanding’) to take part in the proceedings of these institutions.

3.8

The EESC respects the fact that the Advisory Forum's role will enable Member States to involve relevant bodies and create a network of experts. Under Article 12, this body will not have decision-making rights within the Institute and it is unnecessary, therefore, to state that the three members who represent interested parties at European level do not have the right to vote. One might also ask why they are appointed by the Commission: they should be directly appointed by the organisations set out in Article 10(1) a)-c).

3.8.1

A way must be found to ensure equal representation of men and women in the Advisory Forum.

3.8.2

As stated in point 3.6.1, members of the Advisory Forum should have responsibility for ensuring cooperation between institutions in their countries and the Institute (Art 12(4)).

3.9

The EESC has reservations concerning the Institute's planned funding. It detects contradictions in what the Council press release (quoted above in point 2.3 of this opinion) says it should achieve, namely provide added value by meeting demanding goals, while at the same time maintaining budget neutrality.

3.9.1

It is assumed that funding for the Institute will be partially deducted from the PROGRESS programme funds. Paragraph 3.6 of the Draft Proposal's Explanatory Memorandum states that: ‘The Institute's activities will be distinct from those proposed under the gender equality strand of the PROGRESS programme (2007-2013)’. The EESC sees this as an argument supporting the position expressed in its Opinion on the PROGRESS programme:

‘We therefore urge that the funding earmarked for the Gender Institute should not be deducted from the total PROGRESS financial framework, as the current proposal evidently intends, but that separate funding be provided for’  (13).

3.9.2

The EESC recommends, therefore, that the necessary funding for the running and sound operation of the Institute should be taken into consideration when the EU's Financial Perspectives are being discussed and should be allocated, at least in stages, so that the Institute can have the legal and financial security needed to meet the demands which will be placed upon it.

3.9.3

The EESC thinks that concentrating work on gender equality in one place will bring savings at the Community and national levels. The PROGRESS programme draft budget should not, therefore, be reduced but, on the contrary, increased by this amount if there is no decision on separate funding for the Institute.

3.9.4

On no account must the establishment of the Institute be an excuse for reducing funding of other institutions — for example, the Dublin Foundation — whose remit also includes issues such as equal opportunities.

31.1.2006   

EN

Official Journal of the European Union

C 24/34

1.1

The Northern Dimension Second Action Plan (NDAPII) (1) entered into force in January 2004.

1.2

The NDAPII covers five priority sectors:

1.3

The NDAPII also pays attention to specific regions: Kaliningrad and the Arctic region. It encourages concerted actions by all partners involved to reinforce economic, employment and social policies.

1.4

The NDAPII describes different possibilities for action in these sectors, leaving the practical conduct of actions to interested stakeholders. The ND has no separate budget, but is financed from various EU programmes (i.e. Tacis), the governments concerned, and the International Financing Institutions (NIB-Nordic Investment Bank, EBRD-European Bank for Reconstruction and Development, etc.).

1.5

The European Commission prepares annual progress reports on the implementation of the NDAPII. The 2004 Annual Progress Report refers to a vast number of activities in the five priority sectors. The report also makes reference to the EESC's conclusion that civil society organizations are poorly aware of the ND activities and calls for enhanced public information and further involvement of regional organizations in the implementing and monitoring of the ND activities.

1.6

The implementation of the NDAPII is monitored annually: a meeting of Senior Officials took place in 2004; the Ministerial Conference in 2005, and a Senior Officials' meeting scheduled to take place in the second half of 2006.

2.1

The NDAPII requests a contribution of the European Economic and Social Committee (EESC) in the implementation of the NDAP: ‘To provide for the broad participation of civil society groups in reviewing progress under the Action Plan, it would also be helpful if the EESC would be able to organise annual Forums on the implementation of the Action Plan, bringing together representatives from the social and economic organisations represented in the Committee’  (2).

2.2

The request was based on the EESC's contributions in previous years: the opinions on relations between the European Union and the countries bordering the Baltic Sea (3), on the EU's Northern dimension including relations with Russia (4), on Northern Dimension: Action plan for the Northern Dimension in the external and cross-border policies of the European Union 2000-2003 (5) and on the EU/Russia strategic partnership: What are the next steps? (6); the statements to the ND Ministerial meetings in 1999, 2001 and 2002; the conclusions from the two ND Conferences (Forums) arranged by the EESC in 2001 and 2003.

2.3

The EESC responded positively to the Commission's request and decided to gather information about the CSO's views on:

2.4

The CSOs' views were in 2004 collected with a questionnaire, which was widely distributed to civil society organisations in all the countries concerned, and through fact-finding missions to Gdansk, Kaliningrad and Riga.

3.1

The EESC was represented in the Senior Officials' meeting in October 2004, and it presented conclusions and recommendations in a report to the meeting (7).

3.2

The general conclusion about the CSOs involvement in the Northern Dimension Action Plan II was that:

The situation in these three aspects seemed to be more positive in ‘the old’ EU-Member States in the region than in the other states.

There was a general interest among the CSOs, which were contacted, to get more information about the ND and the NDAPII, to be engaged in projects and to participate in the monitoring, both at national and European level.

The EESC proposed that spreading of information to the CSOs about the NDAPII, as well as engaging them in the implementation and the monitoring, should be improved.

The EESC offered assistance in information and monitoring activities at European level, but, at the same time, underlined that the ND activities should be, primarily, at sub-regional, national and local levels, with the intention to involve the authorities and interested CSOs in a constructive interaction.

The EESC supported the principle stated in the NDAPII (8), that representatives of civil society should be encouraged to participate in the annual meetings of the Senior Officials.

It was also proposed that the EU should consider some additional aspects during the NDAPII:

3.3

These recommendations are still relevant.

4.1

The EESC expressed in the 2004 report its intention to provide a contribution to the Ministerial Conference in 2005, as well as to the Senior Officials' meeting in 2006, based on the same criteria as in 2004.

4.2

The EESC has in the context of the newly established Eastern Europe Contact Group (EECG) carried on its activities in the field of the Northern Dimension. The EECG is composed by members of the EESC and handles the Committee's activities towards the Eastern European countries. The aim of these activities is to support the EU's policies to improve relations with the East-European countries, to contribute with the views of the civil society organisations in this context, and to establish direct contacts with CS actors in these countries.

4.3

The EESC has spread information about the Northern Dimension through own contacts and by referring to the Commission's Northern Dimension Information System (NDIS).

4.4

The EESC has, as part of the preparation of the opinion, distributed a questionnaire to approximately 100 civil society organisations. The Committee has also discussed ND with Russian CSOs during the preparation of the EU-Russia opinion. The conclusions in this opinion, therefore, also reflect views of CSOs in Partner Countries.

5.1.1

The survey on general public awareness of the NDAPII was conducted in June 2005. The questionnaires were sent out to various civil society organizations in the countries that are mainly covered by the activities of the Action Plan (the Baltic and Nordic countries, Germany, Russia, including Kaliningrad and Poland). The questionnaire asked for information and views about the same aspects as it did in the previous year: a) the awareness of civil society actors about the ND and the NDAPII, b) the opinion of the CSOs about the ND, and c) the involvement of CSOs in the implementation and monitoring of the NDAPII.

5.1.2

Only 20 responses were received — an indicator that general awareness about the ND and the NDAPII is still very low. This was further supported by the results of the questionnaire — while most of the CSOs answered that they had some awareness of the ND&NDAPII, only in some cases it was obvious that the CSOs had real knowledge about the NDAPII. A third of the CSOs replied that they had heard something about the ND&NDAPII, but, clearly, they had little idea about the aims and contents of it.

5.1.3

Some actors seem to be aware of the few public private partnerships (PPP) in the ND, above all the environmental partnership (NDEP). Several CSOs have, in addition, noted the ND through various regional organisations in the Baltic Sea Region, above all the Council of Baltic Sea States (CBSS). The employers' (BAC-Business Advisory Council) and the trade unions' networks (BASTUN-Baltic Sea Trade Union Network) have also promoted awareness on ND among their members.

5.1.4

NDAPII is seen by some actors as a programme, which is not concerning CSOs, but rather intended as a political project for regional cooperation between the governments and relevant authorities. This seems to be the case, regardless the Commission's efforts to improve public information through the NDIS-initiative.

5.2.1

Results of the questionnaires clearly show that there have been very few initiatives by the governments, authorities or other associations to inform and involve the CSOs in NDAPII. There were only a few responses that confirmed such an engagement. Relevant authorities have, however, in some countries initiated seminars and workshops, which have addressed the implementation of the NDAPII. This is also the case with regional bodies.

5.2.2

Only a few CSOs have been involved in NDAPII by own initiative. This concerns activities related to strengthening investment conditions in the ND area, cooperation with other associations in the ND countries, debate on future of ND, and generally following the ND developments.

—

Labour market issues, employment and social dialogue

—

Promotion of small and medium sized enterprises

—

Facilitation of trade and economic relations

—

Enhancing the conditions for cross-border investments

—

Interlinking infrastructure and improvement of transport networks

—

Actions to involve civil society actors in the implementation of NDAPII

—

Establishment of structures for implementation of the NDAPII

—

Allocation of sufficient resources for NDAPII

—

Distribution of progress reports on implementation of NDAPII.

6.1

The EESC supports the continuation of regional cooperation in the northern part of Europe through structured, multilateral, cross-border cooperation, which also includes non-EU states in the region. The Northern Dimension seems to be well suited for this aim.

6.2

The EESC supports intentions to link the ND to the EU-Russia cooperation and the Four Common Spaces. The EESC has in its recent opinion ‘The contribution of civil society to EU-Russia relations’ (9), para 3.2.5. stated: ‘The EU and Russia should also work together to revamp regional cooperation — the Northern Dimension… The EESC is pleased to note that this aspect has also been duly taken into account in the Road Maps and encourages further measures to develop regional cooperation as part of the EU-Russia relations’.

6.3

Successful regional ND cooperation would require that Russia properly participate in the preparation and implementation of future ND policy. Mechanisms for cooperation in this context, for instance a joint steering council should be considered, also taking into account the other non-EU countries in the region.

6.4

The EESC underlines the recommendations in its opinion on EU-Russia relations that civil society matters should be upgraded in the EU-Russia Road Maps, and that civil society actors should be involved in the EU-Russia cooperation. One should among others consider ways to establish a structured consultation of CSOs in the future ND mechanisms.

6.5

The five sectors of ND cooperation are relevant for the future. One should, above all, take advantage of the positive experiences of the concept of ND partnerships (environmental, social and health, information-technology). Serious consideration should, in this respect, be given to the creation of partnerships in the following areas:

6.6

Existing regional bodies in the Baltic Sea Region, above all the CBSS, should have a central role in the forthcoming ND exercise. The civil society organisations would in this context have a fair opportunity to be involved in and to contribute to the ND through their own regional cooperation networks and their established links to the aforementioned bodies.

6.7

The EESC reiterates its recommendation from 2004 that spreading of public information about the ND should be strengthened. Upgrading of the NDIS is needed for this purpose. The EESC also stresses that information should, above all, be spread nationally and locally, as it is the responsibility of the governments and relevant authorities in the states concerned. Better information would stimulate broader interest in the ND and encourage civil society actors to increase their participation and contribution.

6.8

The financing of ND-partnerships should be determined on case by case basis, and also the governments and the International Financing Institutions (IFIs) should have a central role in this respect. The Norwegian and EEA financial mechanisms would as well be beneficial in spurring above all joint cross-border ND-actions. The European Neighbourhood and Partnership Instrument (ENPI) should become topical from beginning of 2007.

6.9

The EESC will carry on its ND-related activities and has the intention to contribute to the Senior Officials' meeting in 2006. The contribution may reflect also conclusions, based on the Committee's discussions with CSOs in the partner countries. The EESC would be prepared to contribute to further considerations on the future implementation of the Northern Dimension.

31.1.2006   

EN

Official Journal of the European Union

C 24/39

1.1.1

Better lawmaking is a real social requirement, and the EESC will relay to the European institutions and governments the needs of civil society and users of the law in this regard.

1.1.2

Better lawmaking means, primarily, looking at a situation from the viewpoint of the user of the legal instrument. This explains the importance of a participatory approach, involving preliminary consultation and taking account of the representative nature of civil society organisations and social partners — the groups directly affected by legislation — and constructively employing the resources and expertise of consultative institutions.

1.1.3

It also means less lawmaking, combating legislative inflation and simplifying the acquis since too much legislation makes the law difficult to understand, thus creating barriers to trade; it also means ensuring that implementation of the rules will be effective and simple.

1.1.4

Better lawmaking means reducing legislation to its essentials and concentrating on the objectives. It also means designing flexible, adaptable legislation that is sufficiently durable and that also requires a disciplined approach and, above all, consistency in drafting and implementation.

1.1.5

Simplifying means reducing the complexity of the law as much as possible, but it does not necessarily have to mean a drastic cut-back in the body of Community law or deregulation, which would run counter to civil society's expectations regarding security and the need, voiced by business, particularly SMEs, for legal certainty and stability.

1.1.6

All laws or parts of laws that are obsolete must be explicitly repealed.

1.2.1

Every DG of the Commission, in proportion to the number of texts falling within its remit and their complexity (measurable, for example, by the total number of lines and references to other previous legislation and the attendant administrative obligations), should propose a simplification programme to be included in the Commission's overall programme, explaining the need for and the foreseeable impact of its proposals on users of the proposed simplifying legislation. This programme will propose measures for each group of adopted texts (repeal, revision, coordination, …), as well as the estimated resources necessary for its implementation.

1.2.2

An annual consolidated report by the Commission on Simplifying the acquis and better lawmaking will report on the programme adopted for the year and on the effective implementation of the previous year's programme, as well as the situation resulting from its rolling mid-term simplification programme and its work programme. EU and national developments in simplification and better legislation will be analysed and accompanied by new proposals and recommendations, if necessary. A proliferation of reports and communications — that coincide or overlap — should be avoided.

1.2.3

The power of initiative is not neutral; it has a determining influence on the choice of priorities and purposes of the legislation, its preparation and adoption, its reformulation if the legislative authorities put forward amendments; the quality and relevance of the legislative proposals have direct consequences on the duration and outcome of the adoption procedure. If an initiative is badly prepared, it entails a significant waste of time and resources for all the institutions concerned, as well as the organisations consulted.

1.2.4

The quality of the adopted text at the end of the legislative procedure and that of the transposition of directives also have consequences in terms of disputes and the need for the intervention of national and Community judicial authorities, additional costs for national administrations and parties to the proceedings, if there are deficiencies or lead to difficulties of interpretation.

1.2.5

The Commission and the legislative authorities are not omniscient: the social, economic and technological situation is complex and changing. Furthermore, radically changing a law or making it more flexible, where its practical effects differ from the desired objectives or where the cost of implementation is excessive for administration or users, does not mean weakening the legislative authority; quite the opposite — it demonstrates political intelligence likely to build confidence among users and foster respect for the law.

1.2.6

Assessment, launched ahead of the legislative process, must therefore come to a close with an impact assessment or study, which assesses how the legislation can actually be received, how it fits in with the existing body of law, and any potential implementation difficulties.

1.2.7

Where the European Commission withdraws legislative proposals that are already being examined, it should justify its decision to end the legislative procedure already underway and consult legislative and consultative institutions as well as the civil society organisations involved in the process or whose interests are affected by withdrawal.

1.2.8

Legislative assessment, both ex ante and ex post, must be an inclusive and participatory exercise if it is to have undisputed political and practical legitimacy. While ex ante assessment precedes, then accompanies the drafting process, ex post assessment takes place in two stages: first during the transposition of directives or enforcement of regulations, during which the first acceptance and enforcement difficulties become apparent; then during the actual impact assessment which takes place after a predetermined period of implementation on the ground and which may highlight unforeseeable or undesirable consequences. Impact assessments may involve feedback on legislation and the ways in which it is implemented (1).

1.2.9

Negative or unforeseen consequences can differ widely: their evaluation in terms of excessive costs on the part of administration or users must be complemented by a study of their social, economic and environmental impact, or in the light of fundamental rights.

1.2.10

It is necessary to evaluate the exercise of implementing powers: both Community (direct application, comitology of regulation, regulatory agencies) and national (ministries, devolved authorities, independent administrative authorities), their impact (administrative formalities required of users, cost, complexity) and the effectiveness of monitoring or any sanctions. The legislative authorities must be able to carry out a follow-up to this exercise which combines regulation and implementation.

1.2.11

Member States must also develop and perfect their own instruments for evaluation, and then report to the Commission and the national legislative authority on the results, highlighting the successes and problems encountered.

1.2.12

A policy for coordination, information and exchange of national best practice, the regular publication of transposition tables, as stipulated in the Commission decision, as well as the scoreboard showing the progress of the internal market, will permit effective follow-up and corrections.

1.2.13

The European Economic and Social Committee, as it undertook in October 2000 (Code of Conduct), will continue to issue an annual opinion to the Commission on the global report Simplifying the acquis and better lawmaking as well as on the communications and various sectoral reports presented by the Commission on simplifying the acquis and the quality of legislation.

1.3.1

The EESC considers the task of simplifying the Community body of law and making it more consistent and relevant not only to be a matter of methods and techniques, but a deeply political issue that requires intense interinstitutional involvement, with just as high a degree of participation and support from organised civil society.

2.1

The European Economic and Social Committee (EESC) has been asked by the UK EU Presidency for an opinion on Better Lawmaking; it has also been asked to issue an opinion on the Commission's 12th report on simplifying Community law, and it has taken into account the Communication on Better Lawmaking, Growth and Employment which followed on from the European Council on the review of the Lisbon Strategy, as well as the recent Commission decision on the transposition of Directives.

2.2

The EESC's suggestions do not call into question the Community method, based on the rule of law; this method has been reaffirmed and consolidated in the draft Constitutional Treaty, in addition to being enhanced by the addition of a procedure for the direct involvement of civil society in the power of initiative. The suggestions are essentially based on the Conclusions of 1992 Edinburgh European Council, the White Paper on Governance and the Lisbon Strategy (2000-2001), and the interinstitutional agreement of 16 December 2003 and they take into account the work done on the initiative of six presidencies and the Council.

2.3

However, the suggestions stress participation by civil society in the process of drawing up, assessing and subsequently revising legislation. The EESC's views and proposals on the subject and the quality of draft legislation seek to contribute constructively to the improvement of the legal and administrative environment for business and the general public.

2.4

The EESC recognises the need for better lawmaking and welcomes every initiative to this end. It stresses, however, that not all legislation should be considered pointless or an impediment to the EU adapting to the challenges that face it. Moreover, the Commission is the guardian of the Community's interest and the engine of European integration, and the EESC could not support any process which would result in the Commission renouncing the right of initiative which it uses to promote an 'ever closer union among the peoples of Europe'.

3.1

Better lawmaking means contributing to better governance and simpler, more understandable legislation, that gives the European institutions a better image in the eyes of civil society in terms of their ability to act effectively; it thus means re-establishing civil society's confidence in those institutions that make the rules.

3.2

The principle of equality before the law is at present under threat from the complexity and number of rules in force and difficult access to applicable law and law in preparation; however, the need for legislation to be intelligible and accessible must be the guiding principle in both simplifying the acquis and drafting new legislative proposals.

3.3

The EU Charter of Fundamental Rights, as solemnly proclaimed in Nice in 2000, asserts the right of European citizens to good administration; provision of information to, and participation of, end-users, ensuring that the legislative proposal is needed, recourse to independent and reliable experts, implementation of the principles of proportionality and subsidiarity, quality of the legislation, its implementation or execution, and administrative simplification — these are vital prerequisites if a law is to be effective in the eyes of those affected by it.

3.4

The two priorities — simplification of the acquis and better lawmaking — alongside the EU actions undertaken to this end, share the same objective — good governance — and require sufficient resources; they should be integrated into the law-making process and implementation of the law. Once the process is well-established, it must be supported politically with adequate resources.

3.5

Simplification of the acquis and improvement of the quality and effectiveness of legislation have become a top Community priority for competitiveness, growth and employment, sustainable development, quality of life for the people of the European Union and in order to facilitate the activities of European businesses in the internal market and in trade with third countries.

3.6

However, the work and the initiatives undertaken are still far from bearing full fruit; the lack of success of the Lisbon Strategy up till now, the acknowledgements and proposals of the Wim Kok report, and its revival on the part of the European Council have necessarily led to a re-assessment of the strategy followed since 1992, which has been enhanced since 2001 by the institutions and Member States in order to improve legislation and its execution.

3.7

The EESC shares the Commission's opinion that an overall re-assessment of needs and available resources is required. This also applies at national level.

3.8

Europe's difficulties in terms of competitiveness, achieving a knowledge-based economy and on the political front in terms of transparency, participation, effectiveness and acceptance of legislation at grass-roots level and by businesses require decisive strengthening, even — in some aspects — a redefinition of the methods used alongside a reallocation of resources earmarked for better lawmaking in the Europe of 25, which will, incidentally, continue to enlarge in the future.

3.9

The Commission's current strategy is clearly based on two communications published in March 2005 (2) and should be completed over the current year by the proposal for an operating framework for agencies. This framework should, in the EESC's view, be limited to issuing guidelines, without impinging on the autonomy of agencies which are already monitored by the Court of Auditors in implementing their budgets and by the courts in the event of disputes.

3.10

The 12th report on Better lawmaking 2004  (3) refers to: the Commission's action plan on simplifying and improving the regulatory environment, the interinstitutional agreement on better law-making of December 2003 (4) and the Member States' strategy set out in the intergovernmental action programme adopted in May 2002 by ministers of public administration. In its 11th report Better lawmaking 2003  (5), the Commission stated its aims, which — moreover — are given in detail in eight thematic communications (6).

3.11

The Commission's action plan stems from experts' preparatory work and the 2001 White Paper on European governance, and the group's work on the quality of the regulation implemented in 2000 by the ministers of public administration; a sufficiently broad consensus now exists.

3.12

Improvement of the Community acquis through simplification is an essential objective for the Commission, which has adopted a methodology and the means to achieve it.

3.13

Since the process launched by the 1992 Edinburgh Council on simplification and observance of the proportionality and subsidiarity principles began, the follow-up and progress of which have already been recorded in twelve annual reports, the Commission has also made outline provisions for prior consultation procedures, the management of impact assessments and the quality and procedures for drafting new legislation. Yet progress — however real — is still felt to be far from sufficient for users of the law.

3.14

The Council's initiative for better lawmaking, underway since the Irish presidency, was addressed in the 2004 declaration by the six presidencies on better lawmaking (7). November 2004's Competitiveness Council identified twenty or so legislative acts (split into 15 priorities) for simplification and continued its work on this in February 2005; the Commission undertook the task of fleshing out these guidelines; success is essential.

3.15

In its communication Better Regulation for Growth and Jobs in the European Union  (8) the Commission redefined its 2002 approach in connection with the revision of the Lisbon Strategy.

3.16

The ESSC — as institutional representative of organised civil society — is also determined to contribute from the outset and much more actively to the initiative to give Europe better, clearer, more coherent and effective legislation in order to respond to the legitimate expectations of the general public and businesses. The protocol (9) concluded with the Commission enables it to hold consultations on legislative proposals. In this respect its opinions must be more incisive and primarily adopt the perspective of those affected by legislation.

4.1

Legislation is the main means of Community action, under the legal framework set out by the Treaties, unlike Member States, which can make use of a greater variety of measures.

4.2

Improvements in legislation (both existing and future) should focus not only on simplification, but also the consistent use of legal concepts and clarity of drafting, particularly in areas where the law is developing most rapidly, and in heavily legislated or complex areas, for example internal market and environmental legislation, transport policy and statistics.

4.3

The Lisbon Strategy, particularly the need to improve competitiveness and the objective of better European governance (10), makes it necessary to examine the regulatory function and its exercise as well as the impact of European legislation on Member States (legislation and administration), in order to ensure more uniform application of the law and legislative consistency, in turn ensuring a level playing field for the internal market. For this to happen, transpositions must not add unnecessary provisions or complicate directives.

4.4

The Lisbon European Council had already asked the Commission, the Council and the Member States to draw up for 2001 a strategy aiming — by coordinated action — to simplify the regulatory environment (11). It also highlighted the need for new, more flexible methods of regulation.

4.5

The EESC believes that these new methods of regulation — which it supports (12) — will entail more direct and more permanent participation by civil society in legislative action, either in cooperation with the institutions, or more autonomously (co-regulation and self-regulation), as provided for in the interinstitutional agreement of December 2003.

4.6

Since the economy is becoming more globalised and less dependent on manufacturing (the digital economy and knowledge-based society, patent and copyright issues, company audits and new financial instruments and services) (13), new partnerships will be needed with social and economic players (better use of employment committees, social dialogue, but also perhaps to set up sectoral committees, or thematic working groups, for instance), which would make it necessary to reconsider traditional procedures and instruments, or would imply their simplification and adaptation to rapid market change and needs in terms of innovation and investment and training and research.

4.7

The Commission already practises consultation procedures and impact assessments, for which a road-map is published annually, with the emphasis on costs/benefit analysis, but also including other methods, such as multi-criteria analysis. The EESC feels that cost/benefit analysis alone is not really an ideal tool for all areas and all consequences of legislation (e.g. public health, the environment). Indeed, the implementation of fundamental rights or general interest considerations which by definition are difficult to assess in terms of cost-benefit, is to be included in the analysis for certain projects.

4.8

In addition to the Communication on Updating and simplifying the Community acquis (14) which sets the framework for action, two more specific initiatives have been launched on agricultural (15) and fisheries (2004) (16) legislation respectively, which are particularly complex and undergoing rapid development, also the Simplification of Legislation in the Internal Market programme (SLIM) which has been in operation since 1996 and has yielded incomplete but encouraging results, although rarely monitored by the Council and the Parliament, to the point of seeming to have since been abandoned (17).

4.9

The interinstitutional agreement of 16 December 2003 between the Commission, the Parliament and the Council (18), sets out to establish a new approach to the legislative function among the institutions which opens up increased possibilities in support of contract, co-regulation and self-regulation. Arising from this agreement, the EESC has adopted an opinion on simplification (19), and the above-mentioned information report on alternative forms of regulation (20). Previously, the EESC had particularly concentrated its attention on SLIM. The implementation of the interinstitutional agreement should take place, according to the Committee, by paying particular attention towards SMEs and by putting into practice the European Charter for Small Enterprises.

4.10

It is sometimes claimed that more than half of the legislation applicable in the Member States is of EU origin. In 2000, when preparatory work on governance was underway, it was suggested that the acquis communautaire totalled 80,000 pages; today, other studies show a more moderate development of the order of 10 % of new domestic legislation.

4.11

In any case, this legislation carries a cost in terms of preparation, adaptation and implementation, not only for the Union and its Member States, but also for businesses and individuals who are expected to know the law, to obey it, and to follow specific administrative procedures (implementation costs).

4.12

It is difficult to estimate the costs of producing and enforcing legislation, as well as its administrative and bureaucratic implications, but there is growing criticism, especially from business, of the resulting — sometimes unnecessary — requirements, difficulties, obstacles and procedures, which some see as a serious hindrance to European competitiveness, which thus echo the concerns of the Council and the Commission. These costs should be assessed for an objective approach to the quality of legislation. The OECD estimates the cost of implementing the law as between three and four per cent of European GDP (21).

4.13

But focussing solely on compliance costs and the impact on competitiveness touches on only one aspect, a significant one admittedly, but not the only one or even the most important (22). Nevertheless, it would be possible to envisage an approach based on the best legislation; this would entail minimal implementation and compliance costs for the achievement of its objectives; this is a suggestion from the Mandelkern report that the EESC would like to see applied, on an experimental basis, to proposals with an impact on businesses, in particular SMEs. The Commission is already including the issue of administrative costs in its approach and is currently working on a pilot project to model such costs (EU Net Admin. Costs model).

4.14

Legislating is a political action which — beyond the EU institutions and governments — also affects organised civil society and all Europeans. There is a great deal of criticism of the opaqueness and complexity of procedures for drawing up European law and their lack of transparency, as well as the useless, unnecessary introduction of requirements or procedures during the transposition of a directive (gold-plating). These are convoluted administrative procedures which multiply the obstacles, paperwork and costs for law end-users (red tape). Moreover, NGOs and the social partners often complain about the formal nature and the limitations of prior consultation procedures, even though these require large-scale and costly investment in terms of both time and expertise.

4.15

There are problems of institutional profile, governance and democracy — as much for the institutions as for the Member States; Europe's image and that of its institutions is at stake; the institutions need to find quick and effective solutions; at the same time the task is better to meet the challenges of growth, employment and competitiveness in Europe. The Member States must also consider a reform of the state and its administration, as they are also the target of criticism, and as their active contribution to better global governance is vital.

4.16

This has a direct effect on the progress of the European idea and EU integration, especially at a moment when the political debate on the Constitutional Treaty is at the forefront of public attention; we need to meet people's and civil society's wish for clearer, higher-quality EU legislation and to strive to make it simpler, while assessing of the bureaucratic burden of implementation of the law on both administrations and business.

5.1

In February 2003, the Commission launched a framework of actions to reduce the volume of the Community acquis, to improve the accessibility of legislation and to simplify existing legislation. On this basis, the Commission has developed a rolling programme for simplification and presented about 30 initiatives which have simplification impacts for economic operators, citizens and national administrations. Today, 15 legislative proposals are still being considered for adoption.

5.2

The EESC looks forward to the start of a new phase of the Commission's simplification programme in October 2005. This new phase should take account into the opinions of interested parties (see the public consultation opened on 1 June 2005 on the EUROPA website) and take a sectoral approach.

5.3

The EESC notes the importance of the implementation of the Interinstitutional agreement on better law-making adopted in December 2003, in particular paragraph 36 concerning the working methods used by the Council and the European Parliament in the discussion of proposals for simplified acts.

5.4

Consolidation, essential to simplification, should legally replace the scattered laws, assembling and harmonising them. These previous laws should be explicitly repealed in order to give the consolidated version undoubted legal force, as expected by those affected by the law. This requires formal adoption of the consolidated texts by the legislative authorities, unlike the consolidation carried out by the European Official Publications Office, which is technical in nature and does not offer the same guarantees of legal security, although it does make the law easier to understand. Technical consolidation is in fact preparation for legal consolidation.

5.5

The area of the law consolidated needs to be fairly complete and stable, if it is carried out without any change to the law; in some areas another form of consolidation can be carried out when a partial recasting of the law in question has become necessary.

5.6

If a legal provision appears in more than one text, that it appears in the main piece of legislation and — in a specific typographic format — in subsidiary texts, with reference to the main text.

5.7

If consolidation reveals internal contradictions, such as definitions or wording that differ from one text to another, an overall reformulation replacing the consolidated text should therefore be submitted to the legislative authorities as quickly as possible.

5.8

Any repeal or consolidation errors must be corrected and published as rapidly as possible.

5.9

Routine use of consolidation is a continuous and effective means of simplification that can highlight the need to consolidate or revise legislation to make it clearer and more consistent; this greatly facilitates access to the law in force.

5.10

The EURlex and PRElex websites should allow access to all applicable law; all consolidated texts with current force of law must continue to be permanently included in EURlex.

5.11

However, after a certain time, legal texts in force become difficult to consult, because of the method of accessing the Official Journals; this can hinder a thorough knowledge of the acquis: this technical problem must be solved.

6.1

The PRElex website should allow access to all law in preparation, while also placing the latter in its appropriate context (the text of the law should be accompanied by assessments, consultations, studies and explanations); when legislation in preparation refers to other directives or rules, a hyper-link should be provided, irrespective of the publication date of the Official Journal.

6.2

All prior provisions which are in contradiction with new legislation must be explicitly repealed or amended.

6.3

Most of the methods for improving lawmaking already exist and are in use, but some of them need to be furthered developed. Other methods or adjustments could be envisaged, but their overall implementation should not unduly over-burden or delay already complicated drafting procedures, particularly as the Constitutional Treaty makes co-decision the ordinary legislative procedure.

6.4

Thus, the Commission proposes (COM 2005/097) to set up two working bodies:

6.5

The Commission already has access to this kind of expertise, in terms of draft legislation; experience will show whether formalising the access to expertise will bring added value, compared to current practices.

a)

defining the objectives of the legislation, on the basis of its origin and existing law, including case-law of the European Court of Justice (ECJ) in the relevant area; examining ways of best achieving the planned objectives, while avoiding legislative inflation and respecting the principles of proportionality and subsidiarity;

b)

prioritising the objectives and defining priorities via sectoral or horizontal measures; the role of the Council in this process; examining the need to legislate if the Treaties or derived law do not provide the means to achieve the same objectives;

c)

a medium-term plan (timetable, work plan) for achieving the objectives set, using new partnerships;

d)

deciding on the most appropriate legal act or acts for achieving the objectives: directive (framework-law), regulation (law), simplification (integrating new and existing law, unifying legal concepts and definitions, systematic consolidation of changes with the previous text, consolidation, restatement: merging fragmented legislation in a revised and simplified instrument), or regulation by alternative methods (co-decision, coregulation, supervised or non-supervised self-regulation, contractual regulation); integrating the aim of simplification and clarification into every new legislative procedure;

e)

preliminary impact studies going beyond the cost/benefit method in purely financial terms, particularly in those areas difficult to quantify in this way (e.g. environmental measures: the impact on public health, biodiversity, air or water quality; social measures: participation, living and working conditions and their foreseeable impact on economic productivity and efficiency and social welfare); the overall impact must be positive in terms of public or general interest (effectiveness of economic and social entitlements, for example), but the implementing procedures should as far as possible avoid excessive constraints, disproportionate costs (compliance costs) or controls and provisions disproportionate to the goals set; although the financial calculation remains essential, it can in some cases be reconsidered from the point of view of certain key political objectives;

f)

participatory democracy: alternative forms of regulation that directly involve those affected by legislation; for legal instruments, consultation mainly involving those civil society stakeholders most directly concerned, effectively and to a sufficient extent, both directly and via their representative organisations, possibly requesting exploratory opinions from the European Economic and Social Committee and/or the Committee of the Regions; using green and white papers as preparatory tools, and using widespread consultation of civil society and the institutions; creating partnerships with civil society organisations; using methods of communication to explain the objectives and the content of the planned instruments.

8.1.1

The EESC notes the adoption of new internal impact analysis guidelines at the Commission, in force since 15 June 2005.

8.1.2

Preliminary impact assessments, in line with the scope and complexity of the objectives pursued, should first be tackled using the human resources and existing competences of the DG or DGs carrying forward an initiative, as soon as the objectives to be achieved by the legislation have been determined politically. This then would constitute the first approach of the assessment.

8.1.3

The methodology and criteria used may reflect a predefined standard, but which is also adapted to the requirements of each DG and of the draft in question. Informal consultations — on rules of application, objectives, the nature of the instrument and its foreseeable impact — with some of the most representative or affected organisations and national experts can be considered at this stage, without jeopardising the principle of open consultation as much.

8.1.4

What the EESC describes as a ‘preliminary impact assessment’ (23) could then be fine-tuned, either in-house or by resorting to independent external expertise or national experts according to the model proposed by the Commission (24).

8.1.5

The Committee insists that impact analyses should give equal weight to the three dimensions of the Lisbon Strategy — economic, social and environmental.

8.1.6

The EESC believes that in the process of drawing up and applying legislation, core importance should be attached to impact studies; these studies must no longer serve as necessary administrative exercises, or having no added value.

8.1.7

It insists on the need for an impact assessment at least for all draft legislation affecting businesses or workers in various economic sectors, and for all proposals relating to codecision. It is necessary to substantiate the choice of legislative instrument or potential alternative to legislation (co-regulation, contracts, self-regulation) as stipulated in the interinstitutional agreement of December 2003 on Better lawmaking, and from the viewpoint of its contribution to legal or administrative simplification for end-users. Nevertheless, the results of impact analyses are not in themselves sufficient to justify instigating a proposal for legislation.

8.2.1

The next stage, the actual drafting of the legislation, would also initially be carried out in-house, in accordance with the Commission's working methods, in particular its drafting guide, which could be fine-tuned with the help of the Commission's committees of legal experts. The drafting stage should leave certain options open; the aim of the consultation stage, is not to produce a definitive text, but interested parties should be consulted on various possible political options.

8.2.2

From this point forward, drafts of a certain importance should be submitted to the EU's consultative bodies, or they should do this on their own initiative; for example, as well as in the case of green and white papers, it should be possible to ask the Committee of the Regions, representing local administrations and authorities, and the EESC, representing organised civil society, to produce exploratory opinions on legislative proposals concerning, for example, the internal market, the economy, businesses, world trade, external relations, the environment, social issues and immigration, consumption and the reform of agricultural law. The opinion should focus on the preliminary impact study, the objectives set and the ways to achieve them.

8.2.3

Opinions on texts that have already been drawn up in detail and have been the subject of initial negotiations are produced too late to have any significant effect on the texts' general structure; the Committees' expertise could therefore be used upstream much more constructively to promote better lawmaking and to make the law easier to understand and more acceptable to those to whom it is addressed.

8.2.4

During this stage interested parties, institutions and organisations and national and local institutions should be consulted directly through traditional (hearings, conferences, requests for opinions) and electronic means (e-mail, questionnaire on the website of the relevant DG). Under protocols concluded with them, consultative bodies could organise certain consultation procedures: this practice should be developed.

8.2.5

Launching an open consultation procedure via a Community website requires the use of appropriate means of communication and publicity to ensure that the draft legislation, its nature, its outline content and the site itself are familiar to the largest possible number of people, socio-economic players, businesses and local authorities affected by the draft legislation; a register of European and national organisations, local authorities, national and regional ESCs, could be set up in order to notify by email when a consultation procedure is initiated; relevant communication bodies could also be alerted (the general, specialised and trade press…) in order to distribute information.

8.2.6

An objective summary of any outcomes from consultations must be published at the end of the process, together with the outcomes themselves, on the Commission website. This will have to be unbiased and avoid leaning towards the Commission's original plans or yielding to the pressure of lobbies, to ensure that the general interest prevails over individual interests, and that practical considerations prevail over ideological approaches.

8.2.7

Otherwise, there would be difficult obstacles to overcome later, such as those surrounding the two ports package proposals (no impact assessment, lack of references to ILO international maritime conventions ratified by the Member States), the proposal for a directive on services in the internal market (abandonment of harmonisation) or the proposed directive on patents on computer-implemented inventions (which was causing serious legal confusion and uncertainty and on which the EESC had expressed strong reservations, it was eventually rejected at the second reading by the Parliament) (25).

8.2.8

As regards the impact on national authorities, to which the main responsibility for implementing Community legislation falls, it would be advisable to use the methods already in place in many countries by setting up links between the relevant DG and the appropriate national authorities, legal services and technical services concerned. Cooperation and evaluations of in-house impact assessment procedures (benchmarking should be envisaged in order to establish comparable criteria while taking account of those to whom the legislation is addressed.

8.2.9

Criteria to establish the quality and impact of legislation will have to be simple, such as those proposed in the Mandelkern report (26), and make the best use of existing European and national statistical resources and the expertise of the supervisory or inspection services. Staff involved in the enforcement and monitoring of legislation, those who will be responsible for ensuring that it will be applied in practice, will also have to be consulted. Information needs and, where necessary, additional training or recruitment/redeployment requirements will also be considered for effective on-the-ground implementation.

8.2.10

It will be a matter of establishing, at each level, the cost of implementation and the technical prerequisites as accurately as possible, in the light of existing law in the area in question. In this way it will be possible to gain a better understanding of the various aspects of the impact of the planned legislation and thus minimise implementation costs.

8.2.11

The scientific expert network set up at the Commission could fine-tune the current method followed by the Commission in order to enhance its effectiveness. It might also need to analyse specific impact assessments related to a proposal and any amendments tabled to it.

8.2.12

Planning is necessary for each project to establish the various phases and establish the time-frame which must allow a reasonable time for preparing the legislation, taking account of any imperatives and time constraints.

8.2.13

It should be possible to revise impact assessments which are incomplete or insufficient, by resorting to external experts, if necessary. The European Parliament has just added a new section to its ŒIL (27) webpage on the evaluation of impact assessments, which could complement, and where necessary criticise Commission publications (roadmap and specific evaluations of all co-decision proposals to be submitted by the Commission from 2005).

8.2.14

Once these stages are complete, it would thus be possible to finalise the legislative proposal, the impact assessment (28), financial statement and explanations so that users, practitioners and Community and national legislative authorities will be able to familiarise themselves — in as simple terms as possible — with the objectives, scope and practical consequences of the legislative proposal. ‘Quality control’ of the legislation, should take action particularly during this stage; it only remains to determine the practical arrangements.

8.2.15

The Commission communication to the legislative authorities, the Community and national advisory bodies and local bodies responsible for applying and monitoring legislation should incorporate all these elements.

8.2.16

Once the instrument has been chosen, it will be important to define its scope of application in detail by distinguishing matters than can best be dealt with by the proposed instrument (directive) from matters that could be dealt with in a different instrument (regulation), or via an alternative method of regulation.

8.2.17

The wording will have to be clear, unambiguous and must, apart from stating the legal basis, make explicit reference to other relevant articles of the Treaties and to previous legislation: simply quoting EU Official Journal reference will not be enough. Quite the opposite, in fact — the complete title of the instruments referred to will have to be quoted and their content briefly summarised, to make the law easier to understand for its users, and not only for specialised lawyers. A well drafted preamble without unnecessary verbiage will be particularly important in making the content and objectives of the legislation clear.

8.2.18

Subsequent changes to the legislation could be incorporated into the legislation itself (a Commission report after the new law has been in force for a certain time — already common practice — or, better still, a standard revision (‘sunset’) clause — applicable after a certain time period, e.g. three years) (29), which will require an information or feedback system, based on information and suggestions from civil society, which would need an EU contact for this purpose (a single EU contact point at the EU representative offices in the Member States, or the Commission department responsible for the legislation itself).

8.2.19

The Commission should then, in applying the revision clause, either propose changes or an initiative within a set deadline, or — within the same deadline — explain why, in its opinion, no changes are necessary.

8.2.20

Certain ‘think tanks’ recommend establishing a European agency to monitor quality or to determine the relevance of legislation. It would be disproportionate, and against the letter and spirit of the Treaties, to create a superior authority to supervise legislation with the power to make changes. This would undermine the Commission's power — and duty — of initiative. At all events, the Committee is not in favour of setting up this kind of ‘super-agency’ to monitor the exercise of the Commission's power of initiative. The Committee would instead stress the ex ante consultation procedures, the quality of preliminary impact assessments and the ex post assessments and consultation procedures.

8.2.21

Since, in comparison with ordinary legislative procedures, the working methods of legislative committees and regulatory agencies are relatively opaque, autonomous and delegated regulatory powers must also be subject to assessment. The legislative authorities need to be able to monitor the exercise of these powers. Furthermore, the social partners should be equally represented on the executive bodies of the agencies.

8.2.22

Occasionally, the quality of translation into the official EU languages is a problem: the number and skills of the Commission's lawyer-linguists must be increased to take account of enlargements. Expertise in drafting and evaluating legislation will have to be developed internally for officials involved in drawing up legislative proposals and in the drive for simplification, and it must be enhanced within national university legal training in order to allow the recruitment of future European and national officials. Certain universities already provide this kind of training and carry out research in these areas; their expertise can be put to good use.

8.2.23

Ad hoc expert committees, at or attached to the Commission, must make suggestions — before an initiative is published — concerning the clarity, consistency and relevance of the content and wording of documents, as well as the consistency of the legal concepts used, also in the light of laws already in force. The Commission has already devised a joint practical guide for persons contributing to the drafting of legislative proposals, in order to maintain the uniformity of the legal ideas and concepts used and consistency of the law; these drafting standards need to be implemented correctly.

8.2.24

The quality of the legislation will therefore also depend heavily on impact assessments and preliminary consultation procedures which are likely to prevent amendments that are too numerous or have too wide a scope in comparison with the initial draft; the quality of amendments is also liable to influence the quality of the final text. If amendments are deliberately vague so as to keep everyone happy, the law's effectiveness and clarity could be adversely affected. A terminology committee (lawyer-linguists and experts) could help the Commission reformulate proposed changes in order to maintain clarity and consistency within modifications, so that it is able to accept them following a re-reading.

8.2.25

The Committee notes with interest that the Commission is revamping its guidelines for impact assessment by setting clearer pointers for the economy and competitiveness, and moreover that it is making arrangements for examining compatibility with the Charter of Fundamental Rights (30). The revised approach meets some of the suggestions in this opinion, and the Committee will follow up their implementation.

8.2.26

Impact assessments on the amendments put forward by the European legislature should also be considered when the amendments are substantial in nature — by making use of the method drawn up by the Commission — but without unduly extending adjustment procedures. In this context, the EESC hopes that the three institutions will be able to find a common approach to impact assessments of the implementation of the Interinstitutional agreement on better law-making.

9.1

The need for analysis in order to understand legislation should be limited as much as possible, although analysis by the court, together with legal literature and legal practitioners, is still vital for applying the law in specific cases. But vague or unclear legislation does not bode well for legal security, increases implementation costs (because of constantly having to resort to legal, technical and expert opinion or even the court), and causes delays and incorrect implementation. The court is obliged to do the job of the legislature, while cases mount up to a point where the effectiveness of right of access to the court, or at least to a fair trial within a reasonable time-frame, is harmed.

9.2

In its responses to requests for preliminary rulings, the Court of Justice promotes the standardisation of national laws. However, the court is compelled by poor-quality legislation to clarify the meaning and legal scope of unclear provisions, by thus making up for legislative failings.

9.3

Lastly, specialised courts of first instance should be set up to enable the ECJ to give an initial ruling to the optimal extent as quickly as possible and then act (in the second instance) rapidly and effectively to perform its function of standardising case law and clarifying primary and secondary Community law.

10.1

Governments and their representatives on COREPER, the Council in its various formations and legislative committees have a particular responsibility for drawing up and applying legislation, as both legislative authority and joint executive authority with the Commission.

10.2

The negotiating parties and ministerial departments involved in implementing and applying legislation should cooperate more closely starting from the proposal assessment stage in order to anticipate and better prepare the implementing provisions and reduce completion time.

10.3

Apart from its inclusion in the Community institutional system and transfers of responsibility or arrangements for joint exercise of these responsibilities — the Member State has also developed internally; it has seen the emergence of multiple decision-making centres, through devolution or the dispersal of state administrations and departments, the transfer of responsibilities to local or regional authorities or independent administrative bodies and agencies with regulatory and administrative powers, with the budgetary consequences that this entails. Outside the European Union the State is also subject to supra-national legal orders (accepted and obligatory according to the pacta sunt servanda rule), and its authority over economic governance has also been weakened in certain areas (globalisation and WTO, single market, privatisation).

10.4

However, state and administrative reform does not always proceed at the desired pace, and overlapping responsibilities create uncertainty or adverse legal difficulties for business and for state and local authority departments responsible for implementing the law.

10.5

The state is no longer the only source of law; it incorporates Community law according to its application and monitoring rules, not always sharing them clearly with local or devolved authorities. This sometimes leads to major divergences from one country to another in application of the law and Community administrative requirements, to the detriment of necessary harmonisation, in the internal market which risks creating distortions of competition.

10.6

Without the active and resolute participation of Member States in the process of simplifying and improving European legislation, on both a political and practical level, this process will not take the general public's concerns sufficiently into consideration, and efforts will be ultimately in vain. The principles of a one-stop shop, of e-administration, simplification and unification of forms are progressing, e.g. for customs issues, but too slowly. The digital divide in the way information is disseminated to users of the legal provisions must also be borne in mind.

10.7

Nevertheless, a significant number of governments and national parliaments have recognised the need for better lawmaking and better administration, often by creating specialised bodies in touch with certain sectors of civil society and responsible for ensuring the quality of legislation being drawn up or implemented. It would be worth taking stock of these experiments which should give rise to an exchange of experience and better harmonisation of the criteria and methods used.

10.8

The role of the national courts and their requests for preliminary rulings must also be considered and, on the whole, the justice system must generally be improved in terms of the length of proceedings and, in certain cases, in terms of the costs incurred by those seeking access to the courts.

10.9

The remit of experts (the group of national experts and the network of independent experts proposed by the Commission (31)) which are to be set up within the Commission to help improve the quality of legislation could potentially extend, on a consultative basis, to checking the quality of implementation. An early warning system involving national civil society organisations and those affected could be set up (specific point of contact, Info-Eurocentres …).

10.10

The EESC could also consider setting up a contact point for civil society organisations in the EESC's specialised sections (primarily the Section for Agriculture, Rural Development and the Environment and the Section for the Single Market, Production and Consumption, for example, via its Single Market Observatory and its updated PRISM database). It could thus assess Commission reports on simplification and better lawmaking, remaining as faithful as possible to the needs expressed by those affected, and put forward more effective suggestions for improvement.

11.1

The Member States will also be engaged in improving lawmaking with a view to greater competitiveness within the OECD. Various OECD reports show that in most cases the results attained fall short of the objectives pursued; but some even overlap with Community requirements (quality of regulation, simplifying relations with administrative departments and initiatives (one-stop shops), establishing new decision-support tools and more open decision-making procedures (transparency, participation) e-administration, devolution …).

11.2

The OECD is promoting the establishment of a unit responsible for assessing the cost, quality and impact of new regulations in each Member State. Although the initiatives and criteria to be promoted in connection with Community legislation may not entirely tally with those of the OECD, owing to the diversity of the powers pooled by the EU-25 and the objectives of Community legislation, the two approaches (32) are nevertheless mutually reinforcing.

11.2.1

An EU-OECD project on incorporating EU legislation in the ten new Member States is being prepared. Greater synergy between the EU and the OECD should therefore be considered.

11.3

The problems of incorporation emanate essentially from national governments and central administration. In this area, quality should be the overriding priority. Meeting deadlines appears just as important in order to avoid temporary disruptions of the internal market.

11.4

The extension of the co-decision procedure, as provided for in the Constitutional Treaty, is significant in democratic terms: the consultation and assessment procedures carried out at different times and levels mean that procedures risk becoming longer and complex. Furthermore, the initial quality of proposals and of the implementation of directives can justify this potential time extension. The drawing-up of quality indicators for legislation is therefore vitally important (33).

11.5

The most difficult issue is simplification of the acquis. The task is considerable and the EESC doubts that the necessary resources can be allocated unless the relevant political decisions and their financial consequences enjoy the full support of the Member States. The EESC appeals for this support.

11.6

It is worth stressing that the participatory approach places significant demands on civil society organisations, institutions and their agents, and on governments and their administrations. Formal or technocratic methods alone cannot possibly work, even if the technical drafting instruments and impact assessment indicators are perfectly developed.

11.7

When the Commission has the authority to conclude international treaties on behalf of the Community (WTO, …), the consultation and participation of socio-economic organisations and other components of civil society must also be able to practice, at both national and Community level. Principles and methods to this end need to be considered.

11.8

Simplifying the acquis and improving the quality of legislation should not be confused with any economic and social deregulation ideology; they contribute to a strategy of good governance, which aims to better overcome, both technically and politically, the complexity of drafting legislation for a Union of states, according to democratic, participatory and rational procedures.

11.9

The problems and prospects for a solution have been clearly stated; the action taken is suitable for the achievement of the objectives set. So why has so little practical progress been made? Do all the interested parties have the political will to succeed? Can the obstacles be overcome? These questions remain open but if the overall task of ‘Simplifying the acquis and better lawmaking in Europe’ is to be successfully achieved, a firm political will, backed up by action in the long term, appear to be essential requirements.

31.1.2006   

EN

Official Journal of the European Union

C 24/52

1.1

A well-functioning internal market with appropriate standards of social — and in particular worker — protection, consumer protection and environmental protection is at the core of European integration. It legitimises integration by generating significant benefits for citizens and businesses.

1.2

The EU is based on the rule of law. It strengthens the foundations of the internal market and prevents any discrimination on the basis of origin or nationality of products, persons or companies. Effective application of EU law boosts public confidence in European policies and processes and makes the EU more relevant to the concerns of citizens and businesses. This implies however a timely and correct transposition of EU law at national level.

1.3

Moreover, European legislation that aims to remove barriers of any kind to creating a level playing field, must be applied promptly and coherently across the EU and enforced effectively by all relevant authorities: national and regional.

1.4

The internal market functions properly and becomes a source of growth and prosperity only when there are no discriminatory or covert barriers to citizens or businesses, including cumbersome or lengthy administrative procedures. Numerous complaints lodged by citizens and businesses every year result from national measures which often tend to be too restrictive, or too complex and disproportional (1). This is partly due to so-called gold-plating, which takes place during transposition of EU law into national law. Gold-plating adds national regulations which may obfuscate the objectives of the EU.

1.5

Better lawmaking is an integral part of the Lisbon Agenda. The European Council Conclusions of 22-23 March 2005 acknowledged explicitly the positive contribution of an improved regulatory environment to competitiveness. So did the Competitiveness Council on 6-7 June 2005 (2). In this respect it must be underlined that better lawmaking and implementation and enforcement are closely linked: a good law is an enforceable and enforced law.

1.6

For a law to be enforceable it must be sufficiently clear, and to be effective it must provide an appropriate response to specific problems. Where the law is too complex and too vague, for example, because there has not been a proper impact assessment, implementation problems inevitably arise. As a result, additional laws have to be drafted to address these problems. Bad laws lead to a proliferation of laws and excessive amounts of rules that impose an unnecessary compliance burden on businesses and confuse citizens (3).

1.7

In order to ensure that the law is effectively implemented, the authorities must have the essential administrative capacity. Otherwise administrative weaknesses result in implementation and enforcement problems.

1.8

At the same time, effective application of EU law improves competitiveness and facilitates cross-border cooperation, which are two fundamental aims of the Lisbon Agenda.

1.9

The EESC considers that the EU has an implementation and compliance problem. Statistics on the state of implementation of EU law show that Member States experience delays in the timely transposition of directives. Statistics of infringement proceedings reveal that often transposition is incorrect or incomplete. Indeed, 78 % of the cases initiated by the European Commission against Member States during 2002-5 concern transposition and application of directives. This suggests that Member States experience problems in determining the national method of implementation to give effect to directives.

1.10

In various Resolutions the Council has addressed implementation and enforcement problems (4). The Interinstitutional Agreement of 2003 on Better Lawmaking also referred to ‘better transposition and application’.

1.11

In a number of cases the EU Court of Justice has ruled on the obligation of Member States to ensure effective implementation and enforcement (5).

1.12

The Commission has produced several documents elaborating how the Member States could improve their transposition and application performance (6). In its White Paper on Governance, the Commission states: ‘ultimately the impact of European Union rules depends on the willingness and capacity of Member State authorities to ensure that they are transposed and enforced effectively, fully and on time’ (7). Most recently, its Communication of 16 March 2005 on Better Regulation for Growth and Jobs in the European Union outlined a course of action for improving the Community regulatory framework without excessive administrative costs.

1.13

Since 1985 the New Approach has been increasingly, a very useful tool in enhancing effective harmonisation of standards and regulatory approaches. It creates a stable, lean and transparent legal framework with a system of checks and balances for the authorities by using a great variety of instruments defined in directives, and a major responsibility for manufacturers and third parties. As regards implementation the Commission concludes in particular on the basis of an in depth analysis that ‘experience has also demonstrated that implementation of these directives can be further improved in a number of ways’ (8). This document reveals serious shortcomings.

1.14

In its Second Implementation Report of the Internal Market Strategy 2003-2006 (9) the Commission analyses deficiencies in implementing and enforcing in a great number of fields. It defines also intentions and aims for improvement. Among other things this implies more direct commitment by the Member States and thus political will. The Commission Recommendation on the transposition into national law of directives affecting the internal market (10) identifies certain practices that Member States are urged to adopt. Chief among such practices are the assignment of monitoring and coordinating responsibility to a single Minister and Ministry, the establishment of a national data-base on transposed directives and the encouragement of close cooperation between national officials who negotiate in Brussels and officials who implement national measures.

1.15

‘Scoreboards’ on implementation show shortcomings in formal transposition. But, notwithstanding these signs of attention by the respective European Institutions, the way in which agreed rules are implemented in national legislation and/or regulation has not received systematic scrutiny and follow-up discussion in the Council. Whilst different implementation in different parts of a Member State would quickly give rise to public calls for action, different implementation from one Member State to the next is not even on the political agenda.

1.16

Undoubtedly ‘Scoreboards’ have made the transposition record of Member States more transparent. There are not yet equivalent ‘Scoreboards’ on application in order to enhance transparency in how national authorities apply EU law and policies.

1.17

Although improvements are discussed, there is still too little awareness and too little commitment by the public stakeholders across Europe in guaranteeing that EU law as the basis for European integration functions correctly. This will only happen if the whole process is duly respected: adoption of directives, transposition, implementation, enforcement. In many cases, the will to implement the whole process consistently may well be lacking, too. The Commission documents, numerous rulings of the Court of Justice and relevant academic literature provide sufficient sources for the Member States to draw on in improving the fulfilment of their legal obligations.

1.18

Effective application of EU law requires special attention and safeguards in an EU with an increasing number of Member States. The EU's integration process must not be jeopardised by dilution of the effectiveness of EU rules.

2.1

While the EC Treaty provides for a variety of approximation and harmonisation measures to complete the internal market (11), experience in the 1970s and early 1980s has shown that complete harmonisation is a slow, cumbersome and, in certain cases, unnecessary process. Measures based on mutual recognition and home-country control have been easier to negotiate and implement. They have also been more effective in freeing up trade and investment without imposing an excessive compliance burden. However, it has to be noted that the EU has entered a new stage that is characterised by increasing differences in governmental cultures. This may lead to a renewed desirability of regulations in order to attain convergence and the promotion of good practices.

2.2

Despite the shift to new policy instruments, the growth in Community legislation has partly been the natural outcome of the deepening and widening of integration but also partly the result of incomplete or defective implementation by the Member States. New rules have been added to prevent Member States from non-fulfilling their obligations or from making national rules overly complex (12). An illustrative example is the liberalisation directives adopted by the Commission on the basis of Article 86 (3) in such fields as telecommunication services and telecommunications equipment.