On 17 and 18 March 2025, the Dutch Council of State and ACA-Europe organised a seminar on “Contributing to the quality of legislation”. This was the fifth seminar to be held under the Finnish Presidency, following the seminars in Versailles in November 2024, Inari in May 2024, Zagreb in February 2024 and Stockholm in October 2023.
Conclusions from the first session
The first session of the seminar was chaired by Kathalijne Buitenweg and dedicated to the independent general legislative advisory function. Ronald van den Tweel introduced the discussion on this topic with a short summary of the general report. The report gives a good picture of the design and exercise of the advisory function in Europe. It also provides a good insight into the ways in which the highest administrative courts feedback their experiences to the legislator. This form of cooperation between the state powers has been the topic at the 2017 ACA-Congress in The Hague. The purpose of the seminar was to further explore the role that advisory bodies and courts play in improving the quality of legislation.
The first session focused on the advisory function. In total, only 8 countries in Europe (Belgium, France, Greece, Italy, Luxembourg, the Netherlands, Spain, and Sweden) have an independent advisory body with a general legislative advisory function. In most of these countries, this advisory function is attributed to the Council of State. In Sweden and Greece, it is the task of a different independent body. In addition, 4 countries reported to have an advisory institution that does not qualify as an independent general advisory body.
The advisory bodies all play an important role in the preparatory phase of the legislative process, before a proposal is submitted to parliament. 5 advisory bodies report that, if requested, they also can give advice during the parliamentary phase, regarding for example amendments to the proposal. In all cases, the, mostly non-mandatory, time limits for advice vary from 1 to 4 months. In all 8 countries an emergency procedure exists with short-term deadlines. Ronald van den Tweel introduced three aspects of the advisory function and its role in improving the quality of legislation. He described what should be understood by quality of legislation: legislation should be of high quality, meaning that it is consistent with the Constitution and other higher law and existing national law, adequately solve problems in society, be enforceable and, last but not least, be understandable and doable for the citizens. During the session there was a lively and informative discussion on the presented perspectives. Furthermore, it is worth noting that the Council of State of Spain attended a ACA-EUROPE seminar for the first time. They pointed out that they are only advisors to the government and not to the legislature. In deviation from the general report, the Council of State of Spain pointed out it does not have a general legislative advisory function.
The scope of the policy analysis
All advisory bodies perform a legal and constitutional review ex ante. The advisory bodies each test in their own way the conformity of the proposal with higher-ranking law, like the Constitution, international and EU-law, general principles of law and jurisprudence. This review is necessarily abstract but nonetheless highly valuable. With their non-binding advisory opinions, the advisory bodies not only help the government to improve the proposal but also can contribute to a more informed discussion in parlement on the merits of the law. So the independent advisory function plays an important role in the dialogue between the state powers. Several delegations have underlined the importance of the review ex ante for the legal certainty. Advisory opinions are not only valuable during the legislative process but also later on during the judicial review in individual cases. And this is in the interest of all state powers, because it helps to create evidence based legislation of high quality, which is fit for purpose, proportionate, practical and enforceable. In this way an ex ante review helps prevent courts from having to fill the gaps or – even worse – annul the legislation afterwards.
Ben Smulders, judge in the Court of Justice of the EU, confirmed the importance of such a review ex ante and noticed that at EU-level there is no independent general legislative advisory body to safeguard the legislative quality in the EU legislative process. Such a body could in his view discipline the institutions participating in the EU-legislative process. And it prevents the ECJ from having to fill in major gaps afterwards, which could amplify the complaint that the ECJ intervenes in political considerations.
Almost all advisory bodies conduct a policy analysis as part of the review ex ante, but each with their own accent(s) and different explicit national constitutional principles. It consists of an analysis of the problem and of the approach to the problem that has been chosen. Attention is being paid to the objective and the suitability of the proposal, the effects and proportionality but also the practicability and enforceability. Some members have pointed out that a policy analysis also relates to the legal analysis where it comes to the assessment of the proportionality of the proposal when it has discriminative or prohibitive effects in violation with higher law. In this way both analyses are very much intertwined. And although Belgium answered to the questionnaire that it does not perform a policy analysis, during the discussion it became clear that they do assess the proportionality of the proposal, which in essence also can be seen as a policy analysis.
The delegations exchanged views on the thin line between making political comments and drawing up a policy analysis. A policy analysis can be at odds with the required independence of the advisory body, or at least be perceived so. Some advisory bodies underlined that the political objective of the proposal as such is not assessed and that the suitability and proportionality will only be assessed in a restricted manner. There was consensus on this approach, the question is only whether the proposal is suitable and effective given the political objective.
Consistency and unity of advisory opinions
Advisory opinions are discussed and adopted in a plenary assembly, like in Luxemburg, the Netherlands, Italy and Greece. In the other countries, opinions are adopted primarily or partly in chambers or panels. They have, however, the possibility to refer a proposal to the general assembly. For example, in case of important legal or constitutional questions, like in Belgium the division of powers between the federal state, the communities, or the regions.
Adopting the opinions in a general assembly, or having the possibility to convene a special assembly, like in Luxemburg, are mentioned in the general report as instruments for guaranteeing the consistency and unity of advisory opinions. National reports indicate that, for that reason, the advisory bodies take into account their previous advisory opinions and that, if necessary, opinions explicitly deviate from a previous line.
Advisory opinions are formally adopted by a majority vote in all countries. In the Netherlands, Belgium and Luxemburg advisory opinions are in practice nearly always adopted by consensus without voting. The French Council of State often adopts opinions by a formal vote, after a discussion has taken place on the basis of an exchange of views. Important to mention is that the deliberations are secret, which also is an important warranty for the unity. Furthermore, in regard to the consistency and unity of advisory opinions, it is interesting to learn that only two advisory bodies, who adopt their opinions by consensus in a general assembly (Luxemburg and the Netherlands), also mention the possibility of a dissenting opinion. We learned during the session that there is little to no support for this instrument. They are also rarely used, last in 2017 in Luxemburg and in 2004 in the Netherlands.
Publicity and transparency of advisory opinions
The advisory function, as part of the legislative process, can contribute to an informed public debate, especially in parliament, on the problems that are identified and the solution that is proposed. In some countries, the government is obliged to respond to advisory opinions before a draft law is submitted to parliament. This can also contribute to the quality and public acceptance of legislation.
Most of the advisory bodies publish their advisory opinions on their websites at the time an opinion is adopted or, in one case, after adoption and formal publication of the regulation. Some reports mention the possibility for the public to request for the advisory opinions. Advisory opinions can be considered information of public interest. As already mentioned, and stressed by the French advisory body, the deliberations are not published on the ground of secrecy of (government) deliberations. In most of the other countries, the advisory bodies also report annually to the parliament and the general public. In this regard, the delegation of the French Council of State gave an interesting insight in the functioning and activities of their fifth department within the advisory division, the department on Reports and Studies. This department is in charge of preparing the annual report, coordinating research projects and keeping up to date with developments in EU law.
Finally, the delegations exchanged experiences on the challenges of the present day. Several delegations mentioned the risk of being drawn into the political debate after, or even before, an advisory opinion is given. The opinions may be spinned by opponents to the proposal and the advisory body may be accused of making political statements. A key discussion point was the challenge that there is moral pressure to issue advisory opinions quickly or a short formal deadline to issue opinions. This affects the depth of analysis of an advisory opinion. Therefore, advisory bodies have an ongoing challenge to provide timely advisory opinions without losing the depth of analysis. These developments put pressure on the advisory process and the quality of the advisory opinions.
Ronald van den Tweel concluded the discussions of this first session with the observation that good quality of regulation requires high quality of advisory opinions, regardless of the circumstances. The exchange of views during this seminar will certainly contribute.
Conclusions from the second session
During the second session, we delved into the fascinating world of ex ante constitutional review by independent advisory bodies and supreme administrative courts.
Four themes were enthusiastically developed by the participating members:
The first theme was informative and exploratory: We looked at the different systems of ex ante constitutional review. Systems with many similarities but also differences.
The second theme concerned the evaluation of existing systems. The impact on the quality of legislation appears to be substantial, which is particularly positive. Not only is ex post review taken into account in advisory opinions, but the reverse is also frequently the case.
We then focused on countries that do not have a system of prior review, discussing how the interpretation of the Constitution is organised.
Finally, we concluded with our overall impressions of the ‘ex ante constitutional review’.
While this review usually prevents unconstitutional laws from being adopted and improves their quality, it can also slow down the legislative process. There are certain risks (such as the risk of limiting the role of the constitutional judge; the risk of politicising this review; the risk of overlooking certain constitutional issues). However, certain advantages are undeniable: the assistance provided to judges responsible for ex post constitutional review, the strengthening of legal certainty and the prevention of political and social conflicts.
In summary, the lessons learned are as follows:
On the one hand, it is important to emphasise the significant difference between ex ante and ex post review: the former is abstract, while the latter is concrete.
On the other hand, constitutional review, in one form or another, must be considered a particularly useful element of the rule of law.
Conclusions from the third session
Feedback by the judiciary to the legislator in the perspective of the separation of powers
Jurgen de Poorter introduces the first topic by pointing out that the general report shows similarities on some points, but also differences. In general, there are several factors that influence the way judges provide feedback. One of these is the separation of powers. The vast majority of participants provides feedback on technical legal issues. Some of them do this ex ante. As regards structural issues, judges are more reluctant. In the Netherlands, providing feedback is seen as one of the core tasks of the Administrative Jurisdiction Division.
Suggesting solutions seems to cross a line. Most courts refer to the separation of powers. Slovakia drew attention in this regard, as it clearly sets out how a problem may be solved. It would be interesting to hear from them. Further, it would be interesting to hear from Mr Smulders about the role of the CJEU in this regard.
Some judges do not use judgments to provide feedback, but other channels such as the annual report.
Generally, there is a difference between the application of the law and the review of the law. For instance, courts must rule on the legality of the law. In that case, they cannot be said to overstep their mandate.
Latvia can issue ancillary decisions to provide feedback. This is reminiscent of a common law approach. It would be interesting to hear more about this.
Belgium is also interesting. Parties must ask for feedback on solutions before the Council of State can give them. It would be interesting to hear more about this requirement.
Slovakia makes clear its parliament is unicameral and can draft bills, but that it will confine its comments at the conference on the making of governmental draft bills. This constitutes an interdepartmental process. All the draft bills are sent directly to the highest administrative court. The court then has the power to freely advise the government. Also, it may draft bills itself. The government however may ignore these drafts. In that regard, the separation of powers is upheld. Further, the court is reticent in commenting on political choices. However, sometimes they are teased to do so. Example: a court was installed and judges had to have ten years of experience to take part in it. Many judges would not qualify as a result. There was much discussion internally about this. In the end, the court decided to advise only on technical issues, but also to mention a potential unconstitutionality in the act. The court could not rule on that, since it is the Constitutional Court that is competent on such matters.
Estonia asks how much leeway the courts feel to advise on legislation that is about themselves. In Estonia, the highest administrative court feels no restrictions in this regard.
Germany answers that the court administration itself would keep silent on it, but that the judges association could take action.
Greece mentions that in a liberal democracy, it is good to have cooperation between the state powers. The minister should know the case law of the Council of State. Therefore, the judges of the Council of State participate in legislative committees. Sometimes, when its case law is not taken into account during the legislative process, the Council of State declares a law unconstitutional.
France mentions that when the jurisdictional branch of its Council of State sees laws coming its way, normally the advisory opinions of its advisory branch are taken into account. When the jurisdictional branch nevertheless sees an illegality in specific legislation, it can rule on it. France further mentions its Council of State has an interministerial unit working hand in hand with the prime minister. This unit integrates all data, including advisory opinions and other courts’ judgments.
The CJEU explains that whether or not it provides feedback, depends firstly on whether the case at hand is about a horizontal relation between the EU institutions, or about a vertical relation between the EU institutions and the Member States. Secondly, it depends on the type of remedy which is sought.
The EU is not a state, so you could question if the trias politica is really suited for its institutional architecture. Certainly checks and balances are important. The EU however has an own constitutional identity, including respect for the rule of law. More concretely, the EU must respect the constitutional traditions of the Member States and the equality between the Member States. From that it follow that the EU must also respect the principle of trias politica.
In the vertical relationship two principles are relevant: on the one hand, the EU institutions must respect the constitutional identity of the Member States; on the other hand, the Member States must follow the principle of primacy of EU law. As regards type of remedy, the most important one with respect to feedback are infringement procedures. In such procedures, the ECJ may provide indications of how the national legislation could be changed in order to comply with EU law. When the CJEU gives a penalty, the need for such indications becomes more compelling, so that the CJEU is more free to provide them. When it comes to preliminary reference procedures, the task of the CJEU is different. It would never go as far as to rule that national legislation should be changed or annulled. That is for the national court to decide. Of course, the CJEU cannot annul national legislation itself. There lies a limit given the nature of the remedy.
In the horizontal relationship between EU institutions the CJEU is far less reticent. Think of actions for annulment of EU legislation. In case the CJEU annuls EU legislation, it gives a time limit in which the EU legislator should find a solution. The CJEU is reluctant in saying exactly how the legislation should be changed. The CJEU has had many discussions internally and with the ECtHR about national cases such as the Dutch Urgenda case, in which the court ordered the national legislator to make legislation. The conclusion of the CJEU is that it cannot go as far, given the powers it has been given under the Treaties. In sum, the CJEU has little restraint in striking down EU law, but is very restrained when it comes to providing solutions. All in all, this has to do with the way the trias politica is applied under the sui generis nature of the EU legal order.
Feedback mechanisms: the judgment
Latvia explains that its highest administrative court can adopt ancillary decisions to send to certain institutions. It is a hard power, not a soft power, by which institutions can be informed about problems in legislation. The court reminds the government of these signals in annual meetings and in the annual report. Sometimes, the court solves a problem in the process of applying the law to a concrete case. Although the legislator may see this as a push to change legislation, it is sometimes just satisfied with the solutions of the court. As an example Latvia mentions that in 2006 the highest administrative law court gained competence to review the legality of elections.
There was something at fault in the legislation. The court then signalled this to the legislator.
Finland recognizes that on the one hand the court may provide solutions itself, whereas on the other hand the legislator should improve the legislation on the basis of such solutions. As an example Finland tells that there was an issue about the wording in a law. Although the court solved the issue by interpreting the wording in a certain way, it also sent the judgment expressly to the legislator so that the legislation could be improved.
Italy emphasizes that the court has an obligation to give an answer in case legislation is not clear. This is the main issue at stake: the judge is subject to the law and has to apply it even if he thinks there is something wrong with it. In doing so, the court may provide a solution itself, for instance by declaring a law in contravention of EU law. But sometimes more is needed. In that regard it is important to note that the court may annul secondary legislation. In one case the Council of State did this, but the government did not make a new regulation. Then the administrative judge provided a solution itself by rewriting the regulation. The power of doing so stems from a royal decree. Next to that, the Council of State has the power to send signals to the government about bad law. This power is traditionally not only applied by the Advisory Division, but also by the Jurisdictional one.
Luxembourg explains that its Council of State maintains a strict separation between its advisory function and its jurisdictional function, since the ECtHR gave its Procola judgment. However, at informal gatherings such as the New Year reception members of both divisions of the Council of State speak each other and in that way may informally provide each other with feedback.
Belgium reminds the conference that in 1830 it was part of the Netherlands and thus submitted to Dutch Council of State. After Belgium gained independence, it lasted a long time before a Belgian Council of State was established. The reason for this was that the existence of such an institution was regarded as being against the principle of popular representation. As regards feedback, it is important to mention that in 2014, the Council of State was given the power to not only annul illegal legislation, but also to explain which measures should be taken in order to remedy the illegality. It can only provide such solutions, however, on request of the parties to a case. Probably this requirement exists because the Council hardly does anything on its own motion, and must be independent and impartial. More importantly, this requirement warrants that there is a discussion between the parties about the solution needed. This is important from the perspective of the principle of contradictory procedure. Sometimes, the Council is more proactive and expressly asks the parties whether they want a solution.
Portugal maintains a strict conception of the separation of powers. During the economic crisis however this led to a problem. In order to combat the crisis, there was a temporal solution in the form of an unconstitutional act. When the declaration of unconstitutionality was given, the parliament tried again but failed. Then it wanted a solution. The constitutional court could not give it. Nowadays the court can condemn the government to adopt an act, without however prescribing the content of the act. Further, the court has a duty to just apply the law; it cannot use a corrective (contra legem) interpretation method to circumvent problems.
Romania mentions an example about the law on diplomatic passports.
Feedback on structural problems
Hanneke Schipper introduces the topic of feedback on structural problems. How do you deal with issues such as the harsh consequences of law? Hanneke Schipper also introduces the topic of monitoring the effectiveness of feedback.
France explains that its ‘section d’études, de la prospective et de la coopération’ was established when the Council of State got the task to draft reports for the President of the Republic in order to provide feedback to the government. Reports are published on a yearly basis. These reports are either based on a list of main opinions of the Advisory Division and impact assessments, or they are written on the basis of a cooperation between both Divisions. The section d’études writes two kinds of reports:
A yearly one in which it considers topics of general interest. For instance on details of public policy or about public emergencies. Topics of a more public interest are also discussed, such as social media. These reports are written by more people than only the people working in the section d’études. The section organizes conferences also. Further, the section provides potential solutions to the problems raised. These solutions are general in nature. It is up to the government to decide what to do with them.
Studies that are requested by the government. In 2021, the president of the social section saw a problem in the conditions for social benefits. The section d’études had a discussion with the government and then did a study in which suggestions for a solution were made. The study was done by working groups that included people from the government, because the prime minister wanted that.
France mentions several examples of studies that its section d’études has done. An important structural issue is the simplification of legislation. France specifies that it wants experts to carry out these studies, not only members of the Council. Also, it specifies that the Council of State works together with parliamentary commissions.
Ireland highlights the role of its attorney general in ensuring a dialogue between the state powers. The attorney general attends government meetings but is not a member of the government. He is described as the guardian of the constitution. Further, Ireland underlines the importance of the independence of the judiciary.
Monitoring the follow-up of feedback
Finland tells that the composition of its administrative courts cannot be dealt with in judgments. However, the laws on it are inconsistent. In order to do something about it, there was a meeting with chief judges on the matter. This resulted in an internal working group of judges from administrative courts. The highest court could then make use of its power to propose a regulation itself, on the basis of the discussion in the working group. When it did so, nothing happened. Then the court sought contact with the government. The government said it had no time to draft a bill, given Covid-19. This was strange: the court had already drafted a bill itself. At the moment, things are moving forward as legislation is in the making. Finland mentions further that informal contacts are important as everybody knows each other in Finland.
Luxembourg has a follow-up mechanism. There was a case in which nobody within a certain area could do anything with his house in case he was not working in the agricultural sector. As a consequence of this rule, someone who lost his house could not rebuild it. In order to find a solution, the Council of State applied the proportionality principle. Following that, new laws were drafted, and in each stage of the legislative process people referred to the jurisprudence of the Council of State.
France explains in reaction to a question from Luxembourg that its section d’études has its own, separate task about which there is no discussion. It aims to help the public debate with the help of scholars etc. As regards the possibility of a follow-up in case the government disregards the studies, France explains that it tries to tell the government what is happening. With a green card, for instance, the Council of State indicates that the advice is followed. The Council speaks with government officials in order to monitor what is happening. Also, it speaks with DG’s of the European Commission.
The Netherlands tells about its case law on nitrogen, as a consequence of which new legislation is needed. The Council of State does not have to monitor what is happening, because litigants keep coming back by themselves. This makes it possible for the Council to speak through its judgments.
Germany mentions that a bit more than a week ago, its highest administrative court gave a judgment on nitrogen. The court saw a problem in water systems, but could not tell the government how to set it right. The court can only await further procedures.
