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| UKIP's poster campaign for the European parliamentary elections |
I am sure that you have heard it too, dear reader. It is a meme that is repeated again and again, even by MEPs or experts on European Union Law. At times, the figure varies a little–ranging between 70% and 85%–but the idea is the same: Brussels produces most of the regulations that, one way or another, end up in the member states. It portrays the Union as a “legislative behemoth”. Now that a new European Parliament is forming following the elections of May 2014, should we be asking if there is any truth in this.
WHY THE EU DOES NOT MAKE THE MAJORITY OF OUR LAWS
To understand why those figures repeated so much are totally inflated, you to have take into account, as in almost everything, the nature of the things. The European Union is, in its nature, an international organisation. It is true that it is a very special international organisation, we could say that it is almost unique of its type, but ultimately that is what it will continue to be. And that issue is tremendously significant in the theme that we are dealing with. Because while the States possess power in virtually all matters, international organisations lack innate power. That is, while the national law, in the words of a famous English aphorism, “can do everything but make a woman a man”, an international organisation can do only what its founders, the Member States, permit it to do. In the case of the European Union this is translated in what is called the principle of attribution of competencies, as a virtue of which the Union can only produce rules in those matters that the Member States have transferred to it in the Treaties. Those competences, also, are very diverse in nature. The exclusive competences are those in which the EU alone is able to legislate, in the shared competences, the States can intervene in all of those matters that the Union has not legislated, while in the supporting competences both—Member States and Union—can produce rules. On the whole, however, the competences ceded to the European Union are very limited, and the exclusive ones are the most rare of them all—The Treaty on the Functioning of the EU lists only five exclusive competences—, while “competences not conferred upon the Union in the Treaties remain with the Member States.” Another important detail is that, in adopting legislation, the EU has to respect the so-called “principles of subsidiarity and proportionality”. Arising from German and Austrian federalism, both principles assume that in the non-exclusive competences the EU should legislate only to the extent that action is necessary, and only to the extent necessary. In other words, the Union has prohibited to act if action at the state level is enough to achieve the desired objectives. In the development of any rules the Commission must adequately justify that both principles have been respected. In summary, the very same nature of the European Union show us that it is impossible that the great majority of the rules that apply here come from Brussels.
REAL PERCENTAGE
So, if not 75%, what is the real percentage? The short answer is: nobody knows. However, we do not like to stay with the short answer, so let us try to dig a little deeper. First of all, keep in mind how extraordinarily difficult it is to execute an accurate calculation about the impact of the European rules on the national legislation. This is because of a plurality of factors. For starters, the competences of the Union are very different, and some leave a footprint much larger than others: a mere numerical analysis does not reflect the whole truth. On the other hand, also the nature of the rules is significant. While the regulations are directly applicable in all Member States, the directives must be transposed by a national measure. However, that is not the whole story. For the transposition of some directives, it might suffice just an administrative rule, while others require that hundreds of laws of Parliament are passed or modified. Meanwhile, although regulations are in principle applicable in all Member States, in practice this depends largely on the regulation and the Member State in question (it is very unlikely that the Regulation 1198/2006 on the European Fisheries Fund, would be applied often in the Czech Republic, which has no sea outlet). In any case, there are those who, despite the difficulties, have gone the whole hog, and did the maths. Thus, in 2010, the United Kingdom’s House of Commons Library conducted an in-depth study on this issue. Their—not so—surprising conclusion: only 15% of British laws originate in the European Union. The study also cites other studies conducted in different Member States. Some of the results are more or less like this:
WHY THE EU DOES NOT MAKE THE MAJORITY OF OUR LAWS
To understand why those figures repeated so much are totally inflated, you to have take into account, as in almost everything, the nature of the things. The European Union is, in its nature, an international organisation. It is true that it is a very special international organisation, we could say that it is almost unique of its type, but ultimately that is what it will continue to be. And that issue is tremendously significant in the theme that we are dealing with. Because while the States possess power in virtually all matters, international organisations lack innate power. That is, while the national law, in the words of a famous English aphorism, “can do everything but make a woman a man”, an international organisation can do only what its founders, the Member States, permit it to do. In the case of the European Union this is translated in what is called the principle of attribution of competencies, as a virtue of which the Union can only produce rules in those matters that the Member States have transferred to it in the Treaties. Those competences, also, are very diverse in nature. The exclusive competences are those in which the EU alone is able to legislate, in the shared competences, the States can intervene in all of those matters that the Union has not legislated, while in the supporting competences both—Member States and Union—can produce rules. On the whole, however, the competences ceded to the European Union are very limited, and the exclusive ones are the most rare of them all—The Treaty on the Functioning of the EU lists only five exclusive competences—, while “competences not conferred upon the Union in the Treaties remain with the Member States.” Another important detail is that, in adopting legislation, the EU has to respect the so-called “principles of subsidiarity and proportionality”. Arising from German and Austrian federalism, both principles assume that in the non-exclusive competences the EU should legislate only to the extent that action is necessary, and only to the extent necessary. In other words, the Union has prohibited to act if action at the state level is enough to achieve the desired objectives. In the development of any rules the Commission must adequately justify that both principles have been respected. In summary, the very same nature of the European Union show us that it is impossible that the great majority of the rules that apply here come from Brussels.
REAL PERCENTAGE
So, if not 75%, what is the real percentage? The short answer is: nobody knows. However, we do not like to stay with the short answer, so let us try to dig a little deeper. First of all, keep in mind how extraordinarily difficult it is to execute an accurate calculation about the impact of the European rules on the national legislation. This is because of a plurality of factors. For starters, the competences of the Union are very different, and some leave a footprint much larger than others: a mere numerical analysis does not reflect the whole truth. On the other hand, also the nature of the rules is significant. While the regulations are directly applicable in all Member States, the directives must be transposed by a national measure. However, that is not the whole story. For the transposition of some directives, it might suffice just an administrative rule, while others require that hundreds of laws of Parliament are passed or modified. Meanwhile, although regulations are in principle applicable in all Member States, in practice this depends largely on the regulation and the Member State in question (it is very unlikely that the Regulation 1198/2006 on the European Fisheries Fund, would be applied often in the Czech Republic, which has no sea outlet). In any case, there are those who, despite the difficulties, have gone the whole hog, and did the maths. Thus, in 2010, the United Kingdom’s House of Commons Library conducted an in-depth study on this issue. Their—not so—surprising conclusion: only 15% of British laws originate in the European Union. The study also cites other studies conducted in different Member States. Some of the results are more or less like this:
Germany: 38.6%
Austria: 42.5%
Denmark: 14.2%
France: 38%
Austria: 42.5%
Denmark: 14.2%
France: 38%
The differences observed between countries like Denmark or the United Kingdom and Germany or France are hardly surprising and is another factor to consider. The former, traditionally eurosceptic, have negotiated many opt-out clauses, so many of the policies of the European Union do not apply to Danish or British. As far as I know, no similar study has been conducted in Spain, so we can not give a definite figure. The truth lies probably somewhere in the middle of these amounts (between 20% and 50%). One thing is certain: talk of 75% or 80% is pure imagination. So where did this magic number came from?
THE ORIGIN OF THE MYTH
In 1988, the famous president of the European Commission, Jacques Delors predicted that in ten years–that is, around 1998—, 80% of economic and perhaps even fiscal and social legislation would come from Europe. Although it was nothing more than a risky prediction, the figure flew and soon became a “real” assessment of the situation; without any basis, of course. The more self-interested and populist use of this exaggeration comes from the eurosceptics. Politicians from those parties use the magical figure to demonise the European impact, stating that the European Union is a bureaucratic monster that has gulped down the national sovereignty, while that swallowing is not counterbalanced with an increase in the democratic quality of the European institutions. The paradigmatic case is that of the UK Independence Party (UKIP), whose colourful poster campaign illustrates this post. If anything, their argument is more schizophrenic. The 75% they talk about comes, apparently, from a phrase uttered by who was President of the European Parliament, Hans-Gert Pöttering (2007-2009):
“If we were not that influential then we would not be the legislator of 75% of all laws in Europe.”
However, what Pöttering was actually saying was that the European Parliament co-legislated in 75% of the rules adopted by the European Union (and not in the European Union). Therefore, that 75% did not say anything about how much EU legislation end up being translated into national rules. Of course, it should be assumed that a little thing like the truth would not ruin such a beautiful lie.
CONCLUSION
Now you know, dear reader. The next time you see or hear it, you will know that it is not true: the European Union does not produce 80% or 70% or 60% of the laws that apply to you in your daily life. It is true that the European Union produces many rules—thousands of them every year—, but the States are still the invincible champions regarding the law production (a phenomenon that has been called “legislative motorisation”). It should also be taken into consideration that, as we said, not all sectors are equally integrated or influenced by EU legislation. The figure of 80% may be correct in certain issues, such as agriculture or environment. But in total terms it is far from certain. However, quantity does not equal quality. The total number of rules in Europe says very little about the influence of European integration in our daily lives. Even more importantly, many European laws have a significant impact on our lives and that of our European compatriots. It is important to remember this especially now that the newly elected European Parliament will decide much of our future, at least for the next five years. But that is a different story.
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| Another busted myth |
TO KNOW MORE:
Annette Elisabeth Toeller, Claims
that 80 per cent of laws adopted in the EU Member States originate in
Brussels actually tell us very little about the impact of EU
policy-making
House of Commons Library, How much legislation comes from Europe?
James Clive-Matthews, What percentage of laws come from the EU?
*This post was originally published April 22, 2014. It has been collaboratively translated using Duolingo.
