Local view for "http://purl.org/linkedpolitics/eu/plenary/2007-09-03-Speech-1-094"
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"en.20070903.17.1-094"2
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"Mr President, my report is a contradiction because I have used a contradictory expression: ‘soft law’. Law is not soft, law is coercive. The thing is that EU jargon tends to use this expression: ‘soft law instruments’.
What does this mean? It means primarily documents drawn up by the Commission: some of these are interpretative, others are implementing acts, while others are merely preparatory documents. The problem posed is that given the confusion and lack of knowledge about the nature of Community law in many jurisdictions, including the Court of Justice itself, legal force is accorded to ‘soft law’ documents.
This is a breach of the basic legal principles of the EU Member States and the European Union as a whole. The only current legitimacy for issuing compulsory rules with a legal basis stems from the wishes of the people at both national and EU level, and the wishes of the people are normally expressed through representational bodies such as, in this case, the European Parliament, elected directly by the people, or the Council, composed of governments that depend on and are elected by the people in their respective countries.
Obviously the Commission has a major role to play in the application of European law as the guarantor of application of the Treaties, but it must do this in conjunction with the legislative bodies, and it certainly cannot replace the legislative powers conferred by the Treaties on Parliament and the Council.
Our concern in the Committee on Legal Affairs is, firstly, that we have no wish to hamper the Commission’s right of initiative, we have no wish to hamper the executive functions that must be carried out by the Commission, we have no wish to curtail the possibilities of development, but we do feel that it is important to establish a conceptual difference between the two types of instrument, and that when the Commission feels that it must avail itself of this kind of action, it ought to establish cooperation at least with Parliament, and certainly with the Council, so that preparations for such action do not give rise to misinterpretations or interference.
What law certainly cannot be is what has been termed the ‘open method of coordination’. The open method of coordination may be an extremely effective instrument in achieving the objectives of the Treaty, but it may only establish obligations among participating parties. This would be tantamount to contracts between parties, between social agents, for instance. In the same way as an agreement between trades unions and business, for example, may be binding on the parties involved, the open method of coordination may be used to draw up this kind of contract, but it is subject to Community regulations and can never replace them, and the European Union as a community based on law requires the adoption of legal texts.
Thus we cannot merely say ‘we intend to use the open method of coordination’ because it is an effective instrument for achieving EU objectives. It is not an effective instrument because the European Union can only operate as a legal system.
The European Union has no army and no police force, and has operated on the basis of acceptance by the Member States of a number of obligations met by their institutions, compliance with which is supervised by the Commission and the Court of Justice. The open method of coordination, however, is not a legal method, it is not a legal instrument for producing general laws, and the two concepts cannot be confused.
As Mr Gargani said earlier, the Committee on Legal Affairs is worried about this anti-law tendency within the EU. The European Parliament wishes to work alongside the Commission on attaining its objectives, on its executive functions and on its functions in the drafting of legal texts. However, it cannot and must not condone the use of techniques that are at odds with the development of the rule of law, with development of the construction of the EU as a legal entity, a community that must have a clear hierarchy of rules: a set of Treaties - which I still call constitutional, despite everything – laying down the fundamental laws, and EU legislation covering all areas where the EU must play its role, while naturally observing the principles of proportionality and subsidiarity but maintaining the Union’s competences and establishing the legislative action to be taken, reserving for the purposes of execution instruments such as this open method of coordination or any other instrument the Commission may feel has to be adopted to achieve the EU’s objectives."@en1
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