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Laws in Progress? Reconceptualizing Accountability Strategies in the Era of Framework Norms

Published online by Cambridge University Press:  10 September 2013

Emilia Korkea-aho
Emilia Korkea-aho*
Affiliation:
University of Helsinki, Faculty of Law, Centre of Excellence in Foundations of European Law and Polity, Helsinki (Finland). Email: [email protected].
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Abstract

EU law is teeming with framework norms – ‘laws in progress’. They provide little clarity for those to whom they apply, engendering rule-making in networks to assist those charged with implementing and applying laws at the national level. Taking as its specific focus the particular process through which the concept of an ‘article’ was constructed and constituted in a set of negotiations around the EU Chemicals Regulation, REACH, this article shows that networks not only make framework norms operational but also transform them in the process. The fact that networks have an important role in laying out what the law says throws the effectiveness of traditional forms of accountability in doubt. In particular, judicial control is in need of rethinking in order to accommodate norms that change and the networks that change them. This article suggests looking at the connections between internal peer control and externally operating judicial control as a way to keep up with the progress of laws in progress.

Keywords

Framework NormsEnvironmental NetworksEU CourtsImplementationAccountabilityChemicals RegulationPost-Legislative Rule-making
Type
Articles
Information
Transnational Environmental Law , Volume 2 , Issue 2 , October 2013 , pp. 363 - 385
Copyright
Copyright © Cambridge University Press 2013 

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References

1 Directive 2000/60/EC establishing a Framework for Community Action in the Field of Water Policy [2000] OJ L 327/1.

2 Lidskog, R. and Sundqvist, G. (eds), Governing the Air: The Dynamics of Science, Policy and Citizen Interaction (The MIT Press, 2011).Google Scholar

3 Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European ECHA, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC [2006] OJ L 396/1.

4 Fleurke, F. & Somsen, H., ‘Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation’ (2011) 48(2) Common Market Law Review, pp. 357–93, at 365.Google Scholar

5 For the term, see Scott, J., ‘In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law’ (2011) 48(2) Common Market Law Review, pp. 329–55.Google Scholar

6 Note the terms ‘guidance’ and ‘post-legislative rules’ are used here interchangeably.

7 H. Hofmann, ‘Constitutionalising Networks in EU Public Law’, University of Luxembourg Law Working Paper Series, 2009–09, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403968.

8 Exceptions exist, though they are few and far between. For environmental networks and their legitimacy challenges, see Lange, B., ‘Procedure and Legitimacy in Environmental Networks’, in Dilling, O., Herberg, M. & Winter, G. (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart, 2011) pp. 41–76.Google Scholar For an analysis of implementation networks in international environmental law, see Heyvaert, V., ‘Levelling Down, Levelling Up, and Governing Across: Three Responses to Hybridization in International Law’ (2009) 20(3) European Journal of International Law, pp. 647–74CrossRefGoogle Scholar. Finally, for a representative example of political science literature on networks, see Eberlein, B. & Newman, A.L., ‘Escaping the International Governance Dilemma? Incorporated Transgovernmental Networks in the European Union’ (2008) 20(1) Governance: An International Journal of Policy, Administration, and Institutions, pp. 25–52.Google Scholar

9 For an excellent analysis of how a new object of regulation is created, see Lezaun, J., ‘Creating a New Object of Government: Making Genetically Modified Organisms Traceable’ (2006) 36(4) Social Studies of Science, pp. 433–531.Google Scholar

10 Space precludes a consideration of national courts in the supervision of networks. Observing the asymmetry which exists at the EU level between an integrated administration and a non-integrated judiciary, Hofmann places his hopes on horizontal cooperation between national courts and EU courts. This would prove to be useful in view of ‘composite procedures in the areas of implementation of policies and executive rule-making’: see Hofmann, n. 7 above, at p. 14.

11 Recordings are available at: http://echa.europa.eu/view-article/-/journal_content/40bb6ef5-03b0-496f-8c4c-a8f8d04ab68c.

12 To the best of my recollection, the only direct reference to the text of the Regulation was made by the ECHA representative when the ECHA was asked to comment on participation provisions under REACH.

13 Hey, C., Klaus, J. & Volkery, A., ‘Better Regulation by New Governance Hybrids? Governance Models and the Reform of European Chemicals Policy’ (2007) 15 Journal of Cleaner Production, pp. 1859–74, at 1865.CrossRefGoogle Scholar

14 Recital 24. The European Chemicals Bureau (ECB) was asked to initiate work on guidance documents before REACH was officially adopted; the ECB started its work at the beginning of 2005: see Hey, Klaus & Volkery, ibid., at p. 1869.

15 Guidance documents are available at: http://guidance.echa.europa.eu. The ECHA has also compiled a series of shortened versions of REACH guidance documents in order to explain these to the industry in simple terms. In early 2013, the Commission adopted a review report on REACH. It condemns guidance documents as being too complex for businesses, in particular for SMEs, and simplification is called for: see Commission REACH Report, COM(2013)49 final, 14.

16 See Fleurke & Somsen, n. 4 above, at p. 375.

17 Except in Arts. 77(2)(g) and 77(2)(h).

18 Recital 35. Note also Commission Staff Working Document accompanying COM(2013) 49 final, in which it is observed that ‘as guidance is heavily relied on for compliance by industry, the Commission services also consider that it should remain stable in the months preceding any registration deadline’. As a result, in anticipation of registration deadlines, the ECHA has set up a six-month moratorium on guidance to provide stability for businesses: see European Commission, ‘Commission Staff Working Document – General Report on REACH’, SWD(2013) 25, 5 Feb.2013, at p. 27, available at: http://ec.europa.eu/environment/chemicals/reach/pdf/swd_2013_en.pdf.

19 Recital 31, read together with Art. 77(2)(g) and (h).

20 REACH (Revised) Consultation Procedure on Guidance, available at: http://echa.europa.eu/documents/10162/13559/mb_14_2011_consultation_procedure_guidance_en.pdf. The guidance was revised in spring 2011.

21 PEG is an ad hoc expert group involving representatives of various stakeholders, interested parties, the Commission and national authorities. For the mandate, composition and operation of a PEG, see the REACH (Revised) Consultation Procedure on Guidance, ibid., Appendices A, B, C, and D.

22 The Forum for Exchange of Information on Enforcement (Forum) coordinates a network of national authorities with responsibilities in enforcement.

23 REACH (Revised) Consultation Procedure on Guidance, n. 20 above, at p. 6. Note, however, that the text is ambiguous. It reads that ‘the majority opinion as well as the minority opinions and their justifications will be recorded in the meeting minutes … final version of the guidance document will be prepared by the ECHA Secretariat’.

24 Network activities studied in this article have links to comitology on which much has been written. There are also differences that go to the heart of how both of them function. Comitology incorporates national officials into decision-making at EU level to oversee the Commission in the execution of Council decisions whereas implementation networks work the other way around. They incorporate EU-level actors (as well as civil society, absent from comitology processes) into the implementation of EU law, traditionally a matter of national discretion. The role of and opportunities for actors, such as the Commission, in these two institutional contexts vary. For this reason, the choice has been made to exclude comitology from the analysis.

25 As a methodological note, the case study was conducted in summer and autumn 2012. In addition to documentation publicly available on the ECHA website I have complemented the data through private communications with the ECHA.

26 Lezaun, n. 9 above, at p. 504.

27 The other condition is that the substance is present in those articles in quantities totalling over 1 tonne per producer or importer per year.

28 Personal communication, ECHA representative, 6 Sept. 2012 (on file with author).

29 Personal communication, ECHA representative, 21 Sept. 2012 (on file with author). The Commission is divided into departments, known as Directorates-General (DGs).

30 Summary of Comments Received during the Second Round of the PEG Consultation on the Draft Revised Guidance (Summary of PEG comments), available at: http://echa.europa.eu/web/guest/support/guidance-on-reach-and-clp-implementation/consultation-procedure/closed-consultations-reach.

31 For reports see, e.g., the report published by the Nordic Council, available at: http://www.norden.org/en/publications/publikationer/2010-514.

32 Summary of PEG comments, n. 30 above.

33 For the Commission reasoning, see also its recent Staff Working Document, SWD2013 (25) final, n. 18 above, at pp. 28 and 18.

34 Seventh Meeting of Competent Authorities for REACH and CLP (CARACAL), 7–9 Feb. 2011, Brussels (Belgium), 4 Feb. 2011, Doc. CA/26/2011, available at: http://echa.europa.eu/documents/10162/13636/update_com_opinion_sia_en.pdf.

35 See http://echa.europa.eu/documents/10162/13636/draft_guidance_req_sia_en.pdf.

36 N. 1 above.

37 For WFD documents, see: http://ec.europa.eu/environment/water/water-framework/facts_figures/guidance_docs_en.htm.

38 See Hey, Klaus & Volkery, n. 13 above, at p. 1866; see also Fleurke & Somsen, n. 4 above, at p. 365.

39 According to the currently applicable REACH (Revised) Consultation Procedure on Guidance, the majority rules where consensus cannot be reached. This new rule would not have changed the outcome of the SiA Guidance drafting process as recalcitrant Member States were in a minority: see REACH (Revised) Consultation Procedure on Guidance, n. 20 above.

40 Summary of PEG comments, n. 30 above.

41 See http://echa.europa.eu/documents/10162/13636/draft_guidance_req_sia_en.pdf. For the role of the Commission in delivering de facto authoritative opinions on the interpretation of the law and the normative bewilderment of national officials it may cause, see Levefre, S., ‘Interpretative Communications and the Implementation of Community at National Level’ (2004) 29(6) European Law Review, pp. 808–22.Google Scholar

42 On the issue of equal access to networks see, for instance, D.C. Esty, ‘Good Governance at the Supranational Scale: Globalizing Administrative Law’ (2006) Yale Law School Faculty Scholarship Series, Paper 428, available at: http://digitalcommons.law.yale.edu/fss_papers/428.

43 On the concept of iterated deliberation, see Korkea-aho, E., New Governance and the EU Courts: The Experimentalist Architecture of Judicial Decision-Making, Doctoral thesis, University of Helsinki (Finland), Dec. 2011.Google Scholar

44 The ECHA emphasizes the involvement of interested parties on both non-instrumental and instrumental grounds: it seeks to involve them in order to enhance legitimacy and to obtain relevant, useful and up-to-date information: see REACH (Revised) Consultation Procedure on Guidance, n. 20 above, at p. 2.

45 In some cases, the ECHA can decide to launch a general online consultation but it is left up to the PEG or the ECHA Secretariat to decide on how to take the comments into account: see REACH (Revised) Consultation Procedure on Guidance, ibid., at p. 4.

46 Ibid., at p. 5.

47 For members and the procedure for becoming an accredited stakeholder, see information available at: http://echa.europa.eu/about-us/partners-and-networks/stakeholders/how-to-become-an-accredited-stakeholder-organisation.

48 Both quotations are from REACH (Revised) Consultation Procedure on Guidance, n. 20 above, at p. 2 fn 1.

49 Ibid., at p. 5.

50 Chemical Watch News, ‘Apec Seeks Answers on SVHC Notification’, 10 Feb. 2012. The Commission is equally worried about the compromising effects of this disagreement on the internal market and remarks, without specifying details, that it has ‘taken appropriate steps’: see SWD(2013) 25, n. 18 above, at p. 47.

51 Personal communication, ECHA representative, 6 Sept. 2012 (on file with author). The situation has remained unchanged since then: see SWD(2013) 25, n. 18 above, at pp. 28 and 47.

52 See also Scott, n. 5 above. In the realm of implementing international agreements, Heyvaert notes that ‘the norms supported by the network defy a classification as either hard or soft law, but combine elements of both’: see Heyvaert, n. 8 above, at p. 648. This – what she calls ‘hybridization’ – also takes place in the complex relationship between framework norms and post-legislative rule-making.

53 A notable exception is J.L. Mashaw, ‘Accountability and Institutional Design: Some Thoughts on the Grammar of Governance’, Yale Law School, Research Paper No. 116, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924879. His example concerns contracting out which, as in the case of framework lawmaking, requires fresh insights into accountability mixes.

54 See Thatcher, M. & Coen, D., ‘Reshaping European Regulatory Space: An Evolutionary Analysis’ (2008) 31(4) West European Politics, pp. 806–36, at 813.CrossRefGoogle Scholar

55 Lange, n. 8 above, at p. 45.

56 Armstrong, K.A., ‘The Character of EU Law and Governance: From “Community Method” to New Modes of Governance’ (2011) 64(1) Current Legal Problems, pp. 179–214Google Scholar, at 196, referring to Thatcher & Coen, n. 54 above.

57 Goodin, R.E., ‘Democratic Accountability: The Distinctiveness of the Third Sector’ (2003) 44(3) European Journal of Sociology, pp. 359–93, at 378.Google Scholar

58 Papadopoulos, Y., ‘Accountability and Multi-Level Governance: More Accountability, Less Democracy?’ (2010) 33 West European Politics, pp. 1030–49Google Scholar, at 1040. See also Heyvaert, n. 8 above, at pp. 670–1, describing the same phenomenon as ‘an intra-institutional form of accountability’ (emphasis in the original). Lange discusses the role of peers or ‘fellow professionals’ in transnational governance networks and notes that peer relations confer a form of legitimacy, best described as ‘credibility’. Interestingly, in her view, credibility is accompanied by accountability exercised by actors, not at the same level but higher on the institutional structure: see Lange, n. 8 above, at pp. 59–60.

59 See, e.g., Rawlings, R., ‘Changed Conditions, Old Truths: Judicial Review in a Regulatory Laboratory’, in Oliver, D., Prosser, T. & Rawlings, R. (eds), The Regulatory State: Constitutional Implications (Oxford University Press, 2010), pp. 283–305.Google Scholar

60 See, e.g., Curtin, D. & Senden, L., ‘Public Accountability of Transnational Private Regulation: Chimera or Reality?’ (2011) 38(1) Journal of Law and Society, pp. 163–188, at 166.Google Scholar

61 Sabel, C. & Simon, W.H., ‘Epilogue: Accountability Without Sovereignty’, in de Búrca, G. & Scott, J. (eds), Law and New Governance in the EU and the US (Hart, 2006), pp. 395–411.Google Scholar

62 Sabel, C. & Zeitlin, J., ‘Experimentalist Governance’, in Levi-Faur, D. (eds), The Oxford Handbook of Governance (Oxford University Press, 2012), pp. 169–83, at 174–5.Google Scholar

63 Sabel, C. & Zeitlin, J., ‘Learning from Difference: The New Architecture of Experimentalist Governance’, in Sabel, C. & Zeitlin, J. (eds), Experimentalist Governance in the European Union (Oxford University Press, 2010), pp. 1–28, at 12.Google Scholar

64 Several contributors have found evidence to support the thesis: see, for instance, articles in Sabel & Zeitlin, ibid.

65 Council Directive 91/271/EEC of 21 May 1991 concerning Urban Waste Water Treatment [1991] OJ L 135/40.

66 Case C-301/10, Commission v. UK, Opinion of AG Mengozzi delivered on 26 Jan. 2012 (not yet reported), para. 29.

67 Case C-301/10, Commission v. UK, judgment given on 18 Oct. 2012 (not yet reported), para. 61.

68 An exception here is Case C-310/99, Italy v. Commission [2002] ECR I-2289, para. 52, in which the ECJ explained that the guidelines are useful in ensuring that the Commission keeps on its best behaviour but ‘they cannot bind the Court. However, they may form a useful point of reference’. See also Case C-387/97, Commission v. Greece [2000] ECR I-5047, paras. 87 and 89, and Case T-184/97 P, BP Chemicals Ltd v. Commission [2000] ECR II-3145, para. 64.

69 In this article, the terms ‘CJEU’ and ‘the EU Courts’ refer to the Court of Justice (ECJ) and the General Court (EGC) collectively.

70 See a recent overview in Scott, n. 5 above, at pp. 337–43.

71 See also Case C-342/05, Commission v. Finland [2007] ECR I-4713, para. 29.

72 The scientific panels of the European Food Safety Authority (EFSA) have adopted guidance documents identifying their own benchmarks for undertaking risk assessment. Alemanno suggests that the EU courts ‘might rely on the growing number of guidance documents which are prepared by the EFSA’s scientific panels in order to define their own way of conducting risk assessment. In fact, only these documents may potentially provide a useful legality benchmark in reviewing the proper conduct of the panel when carrying out the risk assessment’: see A. Alemanno, ‘Science and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, paper presented at the Young Researchers Workshop on Science and Law: Scientific Evidence in International and European Law, 31 May–1 June 2007, ISUFI, Lecce (Italy), at p. 17, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1007401.

73 Case C-558/07, SPCM SA and Others v. Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783.

74 Ibid., Opinion of AG Kokott delivered on 10 Mar. 2009, para. 127. The Court did not refer to the guidance in its judgment, yet it endorsed the AG’s reasoning as far as the substance was concerned.

75 Case C-358/11, Lapin elinkeino-, liikenne- ja ympäristö- keskuksen liikenne ja infrastruktuuri vastuualue, judgment delivered on 7 Mar. 2013 (not yet reported).

76 Ibid., Commission’s written observations on proceedings, 3 Nov. 2011.

77 For how the EU courts treat scientific expertise analysis, see Corkin, J., ‘Science, Legitimacy and the Law: Regulating Risk Regulation Judiciously in the European Community’ (2008) 33(3) European Law Review, pp. 359–84Google Scholar; Heyvaert, V., ‘Reconceptualizing Risk Assessment’ (1999) 8(2) Review of European Community & International Environmental Law, pp. 135–44.Google Scholar

78 The interesting question and point of clarification concerns the judicial treatment of guidance documents and whether they are treated differently from the more traditional scientific expertise (e.g., the ECHA opinions prepared in the context of the Commission’s decision-making on authorization of chemicals). Do the EU courts distinguish between guidance documents involving ‘policy’ advice and scientific opinions involving ‘scientific’ advice? Or does the attitude towards guidance speak of a general inclination on the part of the EU courts to acknowledge that the strict division between ‘scientific’ and ‘policy’ advice cannot be sustained? As yet the case law is not expansive enough to answer the questions posed. Thanks are due to Veerle Heyvaert for raising the issue.

79 Alemanno, n. 72 above, at p. 25. See also Alemanno, A., ‘The Dialogue between Judges and Experts in the EU and WTO’, in Fontanelli, F., Martinico, G. & Carrozza, P. (eds), Shaping Rule of Law Through Dialogue: International and Supranational Experiences (Europa Law, 2010), pp. 347–76, at 362–7.Google Scholar

80 Scott, J., ‘REACH: Combining Harmonization and Dynamism in the Regulation of Chemicals’, in Scott, J. (ed), Environmental Protection: European Law and Governance (Oxford University Press, 2009), pp. 56–91, at 64.Google Scholar

81 This observation somewhat unhelpfully recurs in the familiar dilemma of science versus politics, experts versus locals etc. in (environmental) decision-making. Without wishing to stoke the fire of a long-standing debate, I limit myself to noting that when people, commodities and ideas travel across the world it seems to matter less to ascertain whether information comes from locals, experts or courts (not denying its importance altogether) than whether that information can withstand scrutiny by locals, experts or courts.

82 REACH Regulation, n. 3 above, Title VII (Authorisation) and Title VIII (Restrictions on the manufacturing, placing on the market and use of certain dangerous substances, preparations and articles).

83 See Scott, n. 80 above, at pp. 77–8. See also V. Heyvaert, ‘The EU Chemicals Policy: Towards Inclusive Governance?’, LSE Law, Society and Economy Working Paper 7/2008, available at: http://www.lse.ac.uk/collections/law/wps/WPS2008-07_Heyvaert.pdf.

84 Bronckers, M. & van Gerven, Y., ‘Legal Remedies under the EC’s New Chemicals Legislation REACH: Testing a New Model of European Governance’ (2009) 46(6) Common Market Law Review, pp. 1823–71, at 1852–3 (emphasis in the original).Google Scholar

85 For an early judgment, see Case T-13/99, Pfizer Animal Health v. Council [2002] ECR II-3305.

86 REACH Regulation, n. 3 above, Art. 76(1)e.

87 Scott, n. 80, above.

88 Bronckers & Van Gerven, n. 84 above, at p. 1846. Note that the intention is not to equate the internal administrative appeal with judicial review. The Board of Appeal is only brought into the analysis as a general indication of litigation interest. However, there may be a stronger link between the two. In cases enshrined in Art. 91(1) REACH, the appeal to the Board of Appeal is a precondition for judicial review (Art. 94(1) REACH), and here the low number of administrative appeals also indicates low numbers of applications for judicial review.

89 In the 2010 annual report the ECHA observed that contingency measures planned for 2010 were unnecessary. While noting that some cases are still to be expected, the ECHA commented that its work with companies during the registration process paid off in the low number of registration rejections and then, of course, ultimately in the low number of cases submitted to the Board of Appeal: see the 2010 ECHA General Report, at p. 32, available at: http://echa.europa.eu/documents/10162/13560/mb_03_2011_general_report_2010_final_en.pdf. In 2011, it was again noted that the number of appeals was lower than anticipated. The Board of Appeal gave a final decision on two cases, two cases were withdrawn and two others were withdrawn after rectification by the Executive Director: see the 2011 ECHA General Report, at p. 47, available at: http://echa.europa.eu/documents/10162/13560/mb_06_2012_general_report_2011_final_en.pdf. The year 2012 was also quite modest in quantitative terms – eight appeals were made to the Board of Appeal: see the 2012 ECHA General Report, at p.46, available at: http://echa.europa.eu/documents/10162/13560/final_mb_09_2013_general_report_2012_en.pdf.

90 See Thatcher & Coen, n. 54 above, at p. 824.

91 These basic procedural requirements are satisfactorily enshrined in the REACH (Revised) Consultation Procedure on Guidance, n. 20 above. See also Scott, J. & Sturm, S., ‘Courts as Catalysts. Rethinking the Judicial Role in New Governance’ (2007) 13(3) Columbia Journal of European Law, pp. 565–94.Google Scholar

92 Thanks are due to Deirdre Curtin for posing the question.

93 T. Prosser, ‘Conclusion: Ten Lessons’, in Oliver, Prosser & Rawlings, n. 59 above, pp. 306–18, at 317.