Clarity and quality
The clarity of legislative drafting in the European Union is a central theme of this part of the conference. Particular concern has been expressed about the fact that EU directives and regulations are too wordy, use sentences that are too complex and turn verbs into nouns unnecessarily. There are three general reasons why legislative texts can be unclear:

1. Legislation is meant to strike a balance between various interests, considerations and visions. The final text bears the marks of this process.
2. Legislation is the work of experts in a specific policy area. They have their own “professional” language. 3. Legislation is drafted under pressure; there is a shortage of time and of sensitivity to precise, clear and unambiguous language use. Arguments for using language clearly in legislative texts generally consider the third of these reasons, as well as the second, but overlook the first. In a democracy governed by the rule of law, however, legislation is always the result of striking a balance between many different interests and visions, and the divergent requirements imposed by a constitutional democracy. For example, equality before the law and certainty of the law, public participation in the democratic process and public accountability, and efficiency and effectiveness. The relative weight of these interests, visions and requirements needs very careful consideration during the legislative process, since they are not always in harmony. Let me give an example from my own experience as a young official working for the Prime Minister in the early seventies. Especially in those days, the Speech from the Throne in which the Queen presents the government’s plans for the coming year was the result of negotiations involving all thirteen ministries and led by the Prime Minister. Every year, there were complaints that the text was unclear, artificial and inaccessible, though all agreed that the Queen’s clear diction was not to blame. In the end, the text was presented to a Dutch linguistic expert, who made a number of suggestions. Was it a coincidence, do you think, that again and again these suggestions had to do with the places in the text where we had found it most difficult to reach agreement? The demands placed on the text by its drafters turned out to be impossible to reconcile with the linguist’s recommendations. Would the speech have been better in policy terms or in political terms if the linguist’s suggestions had been adopted? At this point, we need to look more closely at the term “quality”, in particular when used in the phrase “quality of legislation”. The argument I am about to present involves a number of ideas that have their origins in the Dutch Council of State, and in particular in a paper by a fellow member of that Council, Mr. Donner. I will also draw on the Council’s recommendations as to policy on the quality of legislation and on the bill approving the Treaty of Nice.

Quality of legislation in general
Quality is not a term with a single clear meaning, but one that encompasses demands and expectations, as well as outcomes and results. Who makes the demands and who benefits from the results? Often, the two are not the same. In a democracy under the rule of law, the term “quality” is even more complex when it comes to legislation, because the results are not judged on their social effectiveness alone. The term “quality” also implies a judgement about how well suited something is for a particular function. When we use the term, we suggest that we have a clear understanding of that function, since otherwise we would not be able to make such a judgement. But legislation does not have just one function. It has many, and it is not always possible to reconcile them all. One function is to achieve its express objective. Another is to lay down norms and set limits for the measures to be taken to achieve that objective. The law needs to provide legal certainty, but should also be flexible, with an eye to an uncertain future. It is meant to protect citizens, but also to provide clear instructions to those charged with implementing it. The law must also provide an adequate basis for judicial scrutiny. With such a diversity of functions, any change may be an improvement in one respect but have an adverse effect in another. Furthermore, no one piece of legislation exists in isolation. Each one is a part of a larger network that consists of laws, bodies of law, and overarching legal systems. The quality of legislation depends not only on the weight given to various requirements, interests and visions in relation to one another, but also on the weight given to each one within that overarching whole. Lastly, legislation is one manifestation of government’s activities within the political arena. A legislative act embodies a specific policy, based on specific assumptions, opinions and visions. When we talk about the quality of legislation or the lack thereof, often we are judging the broader vision that underlies it, the interests that it serves or goes against, or the requirements that it either fulfils or neglects. In short, quality is a complicated notion. Taken together, the requirements that legislation must fulfil are strenuous. The language in which legislative texts are drafted cannot be seen in isolation from the intentions of the lawmakers. And furthermore, as legal scholar Paul Scholten said, “Words are never clear”.

Quality of Community legislation
What I have said about the quality of legislation in a democratic legal order applies in full, of course, to legislation within the legal order of the European Union. However, Community legislation has an additional dimension that distinguishes it from national legislation. There is no common legal language. Experts play an important role in the EU’s legislative process. And striking a balance between visions, interests and requirements is often harder at EU level than at national level. This increases the chances of unclear legislative texts. My line of reasoning today is based on the notion that the European Union is a community sui generis, a community which has no exact historical precedent or model, whether federation, confederation or intergovernmental co-operation. The European Union and its legislative, administrative and judicial institutions on the one hand, and the fifteen member states and their national legislative, administrative and judicial institutions on the other, are for the time being complementary and have to cooperate in order to form an effective legal order. As a result of this complex, layered and interconnecting structure the quality of legislation cannot and should not simply be measured in the ways that are customary within existing states. In an osmotic legal order like the European Union’s, we need to take the diversity of legal systems into consideration, as well as the broad spectrum of visions regarding the significance and role of the law. Taking diversity into consideration also provides the foundation for the legitimacy of Community legislation, its acceptability and its actual acceptance in practice, within fifteen different national legal orders. One instrument of Community legislation is the directive, which needs to be implemented into national legislation within the legal systems of the member states, which often differ in essential ways. This lends legitimacy to the very real fact of diversity at this stage of European integration. Furthermore, it would be overestimating the powers of the EU’s lawmakers to think that the social realities of such a diverse legal community could in fact be captured in a single legislative formula. This is often impossible even within a single national legal order. The quality of Community legislation largely depends on the quality of national input and on the quality of the EU’s decision-making processes.

The quality of national input
The procedures by which representatives of the EU and the member states prepare Community legislation in working groups and committees resemble diplomatic negotiations more closely than do procedures for preparing national legislation. What is at stake in these negotiations are national interests, national law, different legal systems and legislative traditions, and different practical approaches to legislation. The primary objective is not to achieve technical precision and unequivocal language. Rather, they aim at compromise, a feasible solution and the greatest possible degree of acceptability. In this process, the main goal of representatives of member states is to achieve the best possible result for their own individual countries. This involves striving for the greatest possible compatibility between the legislation in preparation and their own national legal systems. In the eyes of these national representatives, good Community legislation is legislation that fits as well as possible into their own national systems and best serves their own national interests, or at least does as little damage as possible to them. In other words, each individual party is interested in precision – but any one-member state’s standards of precision may clash with those of the other fourteen. The goal of negotiations is often not to word the agreement reached in the most unambiguous way possible, but to find language that gives each party the greatest possible leeway to continue with its own established practices. As a result, the emphasis is often on what needs to be left out. The need for consensus therefore takes precedence over clarity and transparency. The final text of Community legislation bears the marks of this give and take. This limits the direct utility of the rules of Community law in national law. More practical considerations come into play in the process of implementation of directives and in the application of Community legal rules within a national legal order. Because implementation often takes place under enormous time pressure, provisions, definitions or even large segments of directives are often adopted wholesale in national law, for instance by means of a direct reference to the directive or word-for-word incorporation. In some cases, this is unavoidable. Often it looks like the simplest way of implementing directives into national law. But looks can be deceiving, for as a result of this form of “implementation”, rules and terms from Community law may well take on a role in national law which is neither intended nor appropriate within that system, and vice versa. Unclear passages and discrepancies hidden away in the texts of Community legislation come to light when the corresponding national law is enforced and interpreted. As a result, it is sometimes necessary to request elucidation of the relevant rules and terms from the European Court of Justice in Luxembourg, even in cases where the Community legislation in question was not intended to apply. Such situations provoke renewed demands from member states to improve the quality of Community legislation. The logic underlying these demands is: “Be reasonable: do it my way.” However, national legislation and Community legislation have different functions. While in national law uniformity, precision and an eye for detail are virtues, in Community law the cardinal virtue is to give the member states the freedom to make their own policy decisions, respect their own legislative and judicial traditions and come to their own social solutions, in so far as that freedom can be reconciled with the common objective of the Community legislation in question. Where Community legislation is concerned, whether the text is clear is less important than whether the objective is clear to the member states and whether they have enough freedom to adapt it to their own national system. The quality of Community legislation can only be measured on the basis of a specific, shared vision of the nature, function and development of the European Union. No such vision exists yet. This does not mean that we cannot reach agreement on national quality standards for Community legislation. I am referring not so much to technical standards (which have been in development for some time), but more to standards for policy on legislation and legislative procedures. To decide whether or not to introduce a particular legislative instrument, and to define its scope and content, the EU institutions and national representatives concerned should ask themselves, Is this legislation necessary given the functioning of the European Union? In doing so, they should not look at the EU as a larger version of the national state, for which uniformity is a hallmark of quality. The EU is a legal community in which variation and differentiation are not only acceptable and inevitable, but even desirable. In the last analysis, differentiation is not a defect of the European Union, but its strength. Judicious use of legislation (that is, a limited number of legislative instruments) and judiciousness in legislation (that is, limiting the level of detail in those instruments) should be guiding principles of Community law. Not everything that needs to be provided for at national level also needs to be provided for in Community law. If necessary one can make up for the lack of perfect uniformity and extreme precision through corrective measures. This is feasible because the European Union’s legal order has a number of mechanisms that promote convergence. What I have in mind are doctrines such as interpretation in accordance with directives, safeguarding EU interests and not detracting from the effectiveness of Community law. The European Court of Justice has developed mechanisms around these doctrines.

The quality of the European Union’s decision-making procedures
The quality of Community legislation depends not only on how well representatives of member states understand its function or how much clarity there is about the purpose of individual legislative instruments, but also on the quality of the European Union’s decision-making procedures. When looking for ways to improve the quality of these procedures, we will have to keep in mind the sui generis character of the European Union. This character is expressed in the incremental manner in which the EU’s institutional structures and the policy procedures in and around these structures have evolved over the years. Developments in this area have always been triggered mainly by practical considerations. This has led to a wide variety of decision-making procedures. In addition to the classic Community instruments, a number of new instruments are becoming increasingly important: multilateral treaties, policy co-ordination, global guidelines and co-operation within subgroups that are free to determine their own intensity and to set their own speed. This development has advantages and disadvantages. One advantage is that it is possible to pick and choose the decision-making procedures that best address practical needs. This suits the dynamic character of the European Union. It also helps do away with the need for slow-moving discussions about rigorous institutional reform, discussions that rarely lead to results. Instead, institutional reforms are, as it were, carried along with new developments in relevant policy areas. Disadvantages include the lack of uniformity in decision-making procedures and the emergence of a profusion of procedures that lead to fragmentation. This in turn destroys transparency by making it unclear who is responsible for what, obstructs public scrutiny and damages the democratic legitimacy of the process. The question that arises is whether this approach can be taken any further without doing excessive damage to the quality of European legislation. This question is all the more pressing now that the EU is headed for major new developments such as co-ordination of social, financial and economic policy and co-operation in the areas of immigration and asylum policy, justice and defence. Current debate seems to be concentrated on the ideal ultimate structure of the EU, with an artificially narrow choice between federation, confederation and intergovernmental co-operation, all structures with historical precedents. What this narrowly defined debate overlooks, is that the organisation of the European Union at this time does not match any of these models. Recall the new methods of closer co-operation provided for in the Treaty of Nice. Even within the single institutional framework referred to in Article 3 of the Treaty on European Union, there will always be a greater variety of legislative procedures at EU level than at national level. While national legislation usually displays a high degree of unity, the EU draws on many sources of law. It is therefore important to make sure that the wide range of decision-making procedures all meets the requirements imposed by a democratic legal order. These requirements include: 1. Transparency of decision-making. This means that it should always be clear who is responsible for what. 2. Democratic scrutiny of decision-making, by the European Parliament and by national parliaments. 3. Open government. This includes public access to documents and the right to information. 4. A more substantial form of European citizenship, involving more than just the right to vote once every four years. 5. Subsidiarity as a guiding principle. These requirements are also necessary conditions for improving the quality of the EU’s legislative procedures. The quality of the law cannot be separated from the quality of lawmaking. The legislative process clarifies the intentions of the lawmakers, gives the law legitimacy, makes it acceptable and gives it the authority it is due. Unless we do a better job of satisfying the requirements I have named, the quality and clarity of legislation will not improve. The role of EU institutions in lawmaking is of crucial importance to the quality of legislation and legislative procedures. These institutions counterbalance the input from and negotiations among representatives of member states and safeguard the coherence and continuity of the various legislative procedures. This is especially true of the Commission, which is the representative par excellence of the EU’s interests and the hub of policy preparation. And it must remain so, even when it comes to enhanced co-operation. The members of the Council of Ministers must – almost inevitably – examine draft European legislation from their own national perspective. Members of the European Parliament, too, are bound to propose amendments from the point of view of their own legal systems and using their own legal language. The question is how to strengthen the role of the Commission in monitoring the quality of European legislation in such a way that a single – European – legal language is used more and more when drafting and preparing European legislation. (A European Council of State? Enhanced co-operation within the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union?)

Obscurity in Community legislation – cause or effect?
European legislation may be unclear for a number of reasons. There is no common legal language. Experts with their own professional language play a major role. It is difficult to strike a balance between different visions, interests and requirements. These underlying issues need to be addressed. I have already given some suggestions on how to do so. If nothing is done, we will pay the price when we try to implement European legislation at national level. The co-ordination of the legislative systems of each member state and that of the European Union is still flawed. As long as clarity and agreement are lacking about the distinctive function of Community legislation, as long as the quality of European legislation is judged by national standards, and until the position of the Commission in drafting legislation is strengthened, the manner in which national statutory provisions are adapted to conform with European law will be the biggest problem. We have to concentrate on that. It is only natural that each member state has its own method of implementation, since each member state has its own traditions and views on matters like parliamentary participation, delegation of legislative authority, codification etc. But often the methods of implementation within our own national systems differ too. Perhaps we have to start by clarifying our own methods of implementation as well as our own contribution to community legislation. There is a relation between contributions and implementation. Maybe the lesson we should learn from the shared quandary of implementation is that the member states need to change their perspective on Community law. Instead of seeing it as a problem, because it deviates from national standards, they could look at it as a solution to the problem of providing enough freedom for differentiation within the effort to achieve a common goal. What is the most important conclusion to be drawn in the debate on the clarity of European legislation? Perhaps it is that the obscurity which is complained about at national level is not the main problem (sometimes the very clarity of legislation causes the problem). The main problem is the way in which that legislation is drafted at EU level by the national representatives themselves. If this conclusion is correct, we may say that we are to some extent creating our own problems.