European law is drafted in 20 languages, so legislation is not always clear and effective. With this in mind, June O'Keeffe argues that lawyers have a vital role in testing law in court

No one would argue that the law should not be clear, proportionate and effective. But creating law that meets these tests is easier said than done - and even harder to achieve in the EU than in one single country.


This is, not least, because the legislative process itself is more complicated at a European level. It involves negotiation and compromise between 25 government ministers and the European Parliament, rather than the whip of the majority party in a domestic parliament.


On top of this, any piece of EU legislation will be drafted in 20 official languages, and all of the different language versions are equally authentic. Finally, EU law will usually have to be separately transposed into national legislation in 25 EU countries.


Although, despite all of these difficulties, EU law more often than not achieves much of what it was designed to do, there is scope for much better law-making at a European level.


The first issue on any better lawmaking agenda is whether legislation is needed at all. At the moment, there is no real European equivalent of the Queen's Speech, and therefore no real political test of what legislation might emerge.


However, there is an annual work programme brought forward by the European Commission every year, which is debated in the European Parliament. This lays down the EU legislative priorities for the coming 12 months and usually includes proposals that implement the priorities agreed by the EU heads of state and government at their regular summits. But it is an instrument that could be much further developed so that the need for legislation could be tested far earlier. The inclusion of provisions in the draft Constitutional Treaty that would give national parliaments greater say in whether any EU legislative proposal was appropriate might provide a mechanism for the further development of such tests.



Secondly, improving the consultation process is vital to better legislation. Obtaining useful feedback from those most likely to be affected by proposed legislation is increasingly being recognised as important at a European level and this is an area in which solicitors have a key role to play. Given that solicitors have practical experience of what makes clear, unambiguous law, they are ideally placed to comment on how any proposal might work in practice. The commission is usually keen to hear from the coalface on the drafting and policy implications of what is being mooted and a list of current and past EU consultations can now be found on the Web at http://europa.eu.int/comm/enterprise/consultations/list.htm.



Another important issue is the extent to which European legislation is 'joined up', that is to say, a coherent body of law without contradictions or conflicting provisions.



As the European acquis communautaire runs to more than 80,000 pages, there are inevitably areas where proposals from one commission department do not necessarily chime with those from other departments. There may be examples in which different commission departments are fighting out their philosophical differences through legislation - for example, between the directorates-general for internal market, and justice and home affairs on the choice of law clause. Such tensions become problematic when they translate into contradictory rights and obligations that are bestowed on EU citizens and businesses. Organisations such as the Law Society that comment on European law could do a great deal more to expose such contradictions and encourage a single, settled approach.



Better law-making may, ironically, not necessarily involve legislation. One of the problems with modern law-making at both a national and EU level is that the legislative process cannot always keep up with the demands of the market place. This is particularly true in areas such as financial services and information technology.


To overcome this problem, we have increasingly seen the emergence of 'soft law' in recent years, both nationally and at an EU level. Soft law may include tools such as interpretative guidelines, for example, on state aids, or industry-level agreements that are sanctioned by framework laws.


These are all very well, but they can create as many difficulties as they solve. Soft law can be undemocratic because of the absence of parliamentary scrutiny and because it becomes a great deal harder for individuals to know the law and thus access their rights. The recourse to soft law at a European level is likely to be increasingly attractive in future because of the problems involved in getting 25 countries to agree on any new legislative measures. On the other hand, soft law can fill an important gap.


Therefore, we need to be thinking about rules for the use of soft law at a European level. This could involve, for example, rules about the involvement of the European Parliament in debating soft law, if nothing else simply to ensure that its existence is on public record.


Overall, although it works reasonably well, there are many ways in which European law-making could be improved. The next 18 months will see a much greater emphasis on this issue as the next three member states to take the chair of the Council of Ministers are all keen to work on this agenda.


Legal practitioners are well placed to become involved. Lawyers have to explain the law to their clients &150; which they cannot do if it is unclear. Lawyers can unravel the ambiguities in law by testing it in court and they can perhaps offer views on whether new law is actually needed in any particular area.


June O'Keeffe is head of the Law Society's Brussels office. For additional information, contact the office at: brussels@lawsociety.org.uk