EESC Opinon on Proactive Law

The European Economic and Social Committee (EESC) adopted its Opinion The proactive law approach: a further step towards better regulation at EU level (Ref. CESE 1905/2008) (MS doc) at its plenary session on 3 December 2008 by 155 votes, with no voice against it. The Section for the Single Market, Production and Consumption was responsible for preparing the Committee’s work on the subject. The Rapporteur was Mr. Jorge Pegado Liz, with Helena Haapio acting as Expert.

The EESC Opinion and the proactive law approach were on the Agenda of the recently held International Regulatory Reform Conference IRRC 2008 organized by the Bertelsmann Stiftung in Berlin.

Extract from the Information Memo (MS doc), prepared upon the adoption of the Opinion at the EESC Section for the Single Market, Production and Consumption in November 2008.

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Proactive law is a Nordic innovative approach to law. It places emphasis on the prevention of legal problems and on the promotion of organisations’ and citizens’ legal wellbeing.

Legal certainty is one of the basic preconditions of successful business enterprise. Disputes and litigation consume time and resources which could otherwise be used for productive work.

The proactive approach can be applied for example to business-to-business contracting, university-industry knowledge transfer and R&D collaboration – areas where there is a need to align and articulate various stakeholders’ interests, simplify contract creation, ensure quality, lessen workload, reduce cycle-time, prevent problems and balance risk with reward.

This approach appears as one further means of instruments to offer a methodology, tools and techniques that can help achieve these utterly strategic objectives. Its practical approach also contributes to bridging the gap between legislation in the broader sense and its users on the ground, citizens and business alike.

Gist of the opinion

For too long, the emphasis in the legal field has been on the past. Legislators and the judiciary have responded to deficits, disputes, missed deadlines and breaches, seeking to resolve and remedy. Disputes, proceedings, and remedies to force compliance cost too much and are too unwieldy.

The EESC urges a paradigm shift. The time has come to give up the centuries-old reactive approach to law and to adopt a proactive approach. Preventing causes of problems is vital, along with serving the needs and facilitating the productive interaction of citizens and businesses.

The Proactive approach looks for a mix of methods to reach the desired objectives: the focus is not just on legal rules and their formal enforcement. To set the desired goals and to secure the most appropriate mix of means to achieve them requires involving stakeholders early, aligning objectives, creating a shared vision, and building support and guidance for successful implementation from early on.

By its very nature, the Community legal system is precisely the type of area in which the proactive approach should be adopted when planning, drawing up and implementing laws; against this backdrop, the EESC would argue that rules and regulations are not the only way nor always the best way to achieve the desired objectives.

The EESC believes that the single market can benefit greatly when EU law shifts its focus from inward, from inside the legal system, rules and institutions, to outward, to the users of the law.

The EESC thus recommends that the Commission, the Council and the European Parliament adopt the proactive approach when planning, drawing up, revising and implementing Community law and encourage Member States also to do so wherever appropriate.