Lawmaking in Multi-Level Settings : Legislative Challenges in Federal Systems and the European Union

✍ Scribed by P. Popelier, Helen Xanthaki, William Robinson, João Tiago Silveira, Felix Uhlmann

• Publisher: Nomos
• Year: 2019
• Tongue: English
• Leaves: 318
• Category: Library

✦ Table of Contents

Cover
Introduction to Lawmaking in Multi-Level Settings
Part I. Lawmaking in Multi-level Settings: A Theoretical Framework
Chapter 1: Multi-level Lawmaking. Form, Arrangement and Design in Theory and Practice
I. Introduction
1. Multi-level Systems
2. Upper and Lower Level
II. Forms of Multi-Level Systems
1. Classification of Multi-level Systems Based on Power
1.1. Hierarchical Systems
1.2. Non-hierarchical Systems
2. Classification of Multi-level Systems Based on Tasks
2.1. Co-legislator
2.2. Execution
2.3. Implementation
3. Classification of Multi-level Systems Based on the Predominant Legislator
3.1. Predominantly Upper Level
3.2. Predominantly Lower Level
3.3. Both Upper and Lower Level
3.4. Hybrid Systems
III. Effectiveness, Autonomy and Quality as the Key Concerns of Lawmakers in Multi-level Systems
1. Effectiveness and Quality
2. Autonomy and Quality
IV. Instruments
1. Instruments of Control
1.1. Notification, Reporting, Oversight and Permission Requirements
1.2. Enforcement and Sanctioning Instruments
2. Participation in the Lawmaking Process
3. Coordination Instruments
V. Conclusion
Chapter 2: How Upper Levels Strive to Influence Law-Making at the Lower Levels and Why Lower Levels Can’t Have Cake and Eat It
I. Introduction
Complexity, terminology and limitations
II. The three upper levels and their strive for effectiveness
1. The federal level in federations
2. European Union law
3. Public international law
4. What all three upper levels share: A common appetite for effectiveness
III. What upper levels can do to secure effectiveness and the common concerns at the lower levels
1. Vertical substitute performance
2. Vertical court enforcement
2.1. The importance of admissibility rules
2.2. Direct applicability and vertical direct effect
2.3. Invalidation by upper level courts
2.4. If norms are not directly applicable
a) Between appeals to the legislator and judge-made law
b) Requiring consistent interpretation
2.5. Common concerns with court enforcement
3. Financial liability (as a sub-type of court enforcement)
4. Oversight and cooperation
4.1. Approval requirements
4.2. Loyalty principles, duties to consult, inform and involve
4.3. Financial and other incentives
4.4. Oversight mechanisms
4.5. Common concerns with oversight and cooperation
IV. Conclusions
Chapter 3: Legislative Challenges in Multi-level Settings from a Lower Level Perspective
I. Introduction. Law-making in multi-level settings: a problem of coordination
II. Legislative initiative and inter-institutional programming in the EU
III. The Early Warning System and the principle of subsidiarity in the jurisprudence of the European Court of Justice
IV. Challenges of multi-level law-making in Italian regionalism: the role of the Constitutional Court
V. Quality of legislation between the State and Regions in Italy: the multi-level legislator unbound
VI. Conclusions
Part II. Lawmaking in European Multi-level governance: The EU Perspective
Chapter 4: Multi-level lawmaking and Better Regulation in the European Union: a critical approach
I. Law-making in multi-level contexts: setting the scene
II. Subsidiarity: the key solution to the dilemmas of multi-level law-making
1. Impact Assessment
2. Consultation
III. Subsidiarity in legislative practice
IV. Conclusions
Chapter 5: Recent Developments in EU Regulation and Legislation
I. Introduction
II. The 2016 Interinstitutional Agreement on Better Law Making
III. The Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”
IV. Access to documents
V. Conclusion
Chapter 6: A critical analysis of EU regulation
I. Introduction
II. Ambiguity or lack of clarity
1. Ambiguity due to formal reasons
2. Ambiguity due to substantive reasons
2.1. Vagueness, especially as to the scope, or reliance on clarification in the recitals
2.2. Inclusion of soft-law provisions in legally binding acts or political planning and indicative lists
2.3. Provisions which have not been updated or unclear links between legal acts
2.4. Indirect amendments
III. Incompleteness
IV. Defects of form
1. No legally binding form
2. Incorrect choice of form
2.1. Regulations as concealed directives
2.2. Amendment of EU directives by EU regulations
2.3. Hybrid nature of decisions
V. Conclusion
Chapter 7: Hybrid and neutral language(s) in EU Multi-Level Legislative Drafting
I. Introduction
II. Languages of the Member States’ national law as compared to language(s) of EU law
III. Levels and stages of EU drafting and transposition
IV. Linguistic and terminological choices at EU level – drafting of EU law
V. Linguistic and terminological choices at a national level – transposing EU law
VI. Conclusions
Chapter 8: European Commission’s Soft Law Instruments: In-between Legally Binding and Non-binding Norms
I. Introduction
II. The ‘murky’ EU soft law
III. Normative content as a key factor for determining the legal nature of EU (soft law) acts
IV. Assessing the normative content of Commission’s soft law instruments
1. Structure
2. Degree of detail and precision
3. Strength of obligations
4. Compliance/enforcement mechanisms
5. Persuasive force of arguments
V. A legally problematic ‘hardening’ phenomenon of EU (Commission’s) soft law instruments
VI. Better lawmaking through an argumentative ‘toolbox’
VII. Conclusion
Chapter 9: The Phenomenon of ʻDirective-like Recommendationsʼ and their Implementation: Lessons from Hungarian Legislative Practice
I. Introduction
II. The spectrum between directives and recommendations
III. Duties of government bodies involved in implementation of DLRs
1. The system governing harmonization under Hungarian law
2. Implementation of recommendations: a mixed picture
IV. Outlook: Do directive-like recommendations have some added value?
Chapter 10: Multilevel consultation procedures at the EU level and their contribution in copyright law making
I. Introduction
II. Literature review
III. Public consultation as process: conceptual foundations
IV. Multilevel governance: A conceptual analysis
1. Multilevel governance and the European Union
2. Innovations in governance: towards ‘better regulation’
V. Scientific consideration of the review on the European copyright regulations
Examination of the questionnaire section about the ‘research exception’
End users/consumers
Institutional users
Authors/performers
Publishers/producers/broadcasters
Intermediaries/distributors/other service provider
VI. Assessment
VII. Conclusion
ANNEX 1 – Type of respondents
ANNEX 2 – Member States
Part III. Lawmaking in European Multi-level governance: The Member States’ Perspective
Chapter 11: Transposition of EU Legislation into domestic law: Challenges faced by National Parliaments
I. Introduction: National Parliament (enter)in(g) the EU’s institutional framework
II. National Parliaments and EU proposals
Exerting influence on the transposition of EU Directives
The proposal stage leading up to the enactment of the EU directive
1. Input for the position of the executive
2. ‘Cards’
3. Political dialogue
III. National Parliaments and the transposition of EU Directives
IV. National Parliaments & comitology
V. Key points and observations
Annex 1 EU Legislation enacted by the Commission
Chapter 12: How to reconcile the drafting rules and practices of the Member-States with the rules and practices of the EU?
I. The interconnection between national and EU legal drafting
II. A “de facto” harmonization of legal drafting techniques in the EU?
III. Then… How to reconcile the drafting rules and practices of the Member-States with the rules and practices of the EU?
Chapter 13: Regulating Private Law. The Rise of Regulations and their Impact on National Codifications
I. Introduction
II. Harmonisation through Directives
III. Harmonisation through Regulations
IV. Clarity, Accessibility and Consistency
V. Dealing with Regulations
VI. Concluding Remarks
Chapter 14: Transition from EU directives to EU regulations and the consequences for implementation at the national level. The case of the General Data Protection Regulation (GDPR)
I. Introduction
II. Transition from Directive 95/46/EC to the GDPR
III. The GDPR is not the ultimate exhaustive regulation
IV. Further complications on the Member State level caused by the GDPR
V. Delays in the implementation process
VI. Conclusion
Afterword
Chapter 15: Shaping future – Reframing law-making in multilevel systems
I. Introduction
II. Law-makers intend to change the future
III. Law-makers provide innovation for huge, diverse though interested audiences
IV. Multilevel legal environments in a sharing world
The Contributors
The Editors
The Authors