Better law‐making and the interinstitutional (dis)agreements: Some comments

• Date: 01 March 2020
• DOI: http://doi.org/10.1111/eulj.12364
• Author: María José Martínez Iglesias
• Published date: 01 March 2020

KALEIDOSCOPE

Better law-making and the interinstitutional

(dis)agreements: Some comments

María José Martínez Iglesias*

Abstract

This work argues that there is no univocal interpretation of what regulatory policy is and pursues.

Taking the strategy of the European Commission as a starting point only, it addresses more specifically

the Union legislature's perspective, which, in a democratic decision-making process, cannot compromise

its autonomy. In the unique constitutional universe of the European Union, the “Better Law-Making”

agenda pursues an important additional objective: facilitating the very process of adopting legislation

by means of interinstitutional conflict prevention mechanisms and through a common approach to

interpretation and implementation of primary law. That is the main purpose of the Interinstitutional

Agreements on the quality of legislation, which place them in the position of a sort of soft

constitutional law.

1|INTRODUCTION TO AN INTERINSTITUTIONAL APPROACH TO

BETTER LAW-MAKING

When dealing with the concept of “Better Law-Making”, the very first difficulty is always one of definition. It seems

that we all know what we are talking about, but in reality, and depending on the perspective of the interlocutor, a

certain variety of phenomena is hidden behind this expression.

Let's start with the name. I am talking about “Better Law-Making”. It is probably not the most widespread

terminology; “Better Regulation”is an equivalent expression used more frequently. Both expressions are commonly

used interchangeably. However, while the first emphasises the process of crafting the rules—the procedure that

leads to the approval of the rule—the second focuses on the result of that process: on the rule itself and its content.

Undoubtedly, producing good-quality, legitimate and respected legal rules is a universally shared objective.

However, the key element in a democratic society for judging the quality of legislation

1

is, first of all, the way in

which rules are elaborated and adopted. The quality of legislation is essentially a question of method. It is the “how”

that will first determine the quality of a democratic decision-making process, and therefore the legitimacy and

effectiveness of the rules produced thereby.

*

Director for Legislative Affairs in the Legal Service of the European Parliament. The views presented in this article are those of the author alone and do

not represent an official position of the Legal Service of the European Parliament.

1

The term “legislation”is used in this work in a general way as equivalent to “regulation”.

DOI: 10.1111/eulj.12364

108 © 2020 John Wiley & Sons Ltd Eur Law J. 2020;26:108–113.wileyonlinelibrary.com/journal/eulj