In this piece Helen Xanthaki considers the unexplored capacity of EU legislation to serve as a means of direct communication between the EU and its citizens, thus enhancing the effectiveness of EU regulation, restoring a relationship of loyalty and trust to the EU ideal and the organisation, and supporting sustainable integration.

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The European Union has been thriving for decades as an organisation aimed at offering political friendship, financial stability and competitiveness, and social justice for its citizens.

Traditionally, the EU used legislation as a means of addressing member states, and directing them to take measures that support integration or to refrain from measures that do not serve integration. This legislative dialogue has always been between the EU and its institutions on the one hand, and the member States and their national authorities on the other hand. 

But, as is to be expected, in the passage of time things have changed. Member states try to usurp the EU’s legislative activity, either by presenting popular EU measures as their own achievements, or by uploading the burden of unpopular measures to the EU rather than national administrations.

The narrative of Brussels legislating eccentrically on its own, often in an unpopular way, much more often in an irrational way, has became popular, and has served as a successful communication tool for populist administrations and populist parties and movements within member states. Brexit is a prime example of a radical result of the anti-Brussels narrative. 

And now the EU has two clear choices. One, it can continue with the same narrative of detachment from national political debates, leaving itself vulnerable and silenced against populist voices. Or it can do what it has been doing periodically over its history, for example with the Single European Market, the Treaty of Amsterdam, or, to a degree, the Treaty of Lisbon: reinvent itself, its communication, its narrative.

Only this time there is no need for grandiose [dare I say risky?] Treaty revision. The EU has the unique opportunity to use its legislation as its means of communication, not just with member states, but mainly directly with its citizens. After all, this reflects the direct consequences of EU legislation to the everyday life of EU citizens, both by means of supremacy and direct effect, but also by means of a realistic acceptance that EU legislation is a text simply copied by national authorities.

Legislation is the main tool by which the EU regulates. It tells the story of the service that the EU offers to its citizens – peace, democracy, rule of law, human rights. By continuing to address its legislative communication to member states, the EU now ignores both the direct consequences of its legislation for citizens, as well as the finality of its legislative texts, which (through the widespread copy-out transposition practice) is currently used both as a national implementing measure and as an EU Act.

Realism, and opportunity, then. The opportunity of the EU to reform its legislative communication, to talk to its citizens, to explain clearly and plainly why it regulates/legislates, what it aims to achieve for the benefit of its citizens, how this added value translates to rights for EU citizens (or even short-term obligations for the greater good). The opportunity to explain clearly what the EU offers (or imposes), and, in a separate part of the EU Act, to introduce the powers and duties offered to member states.

The advantages of such a legislative reform can be blinding. The direct communication with citizens allows the EU to explain why, how, and what it legislates, thus forging a channel of meaningful direct communication, with the EU truth expressed clearly and directly, thus forging a relationship of trust and ultimately loyalty to the organisation and the EU ideal. And the list of powers and duties to member states explains the contribution of national administrations to giving teeth to EU rights, thus apportioning accountability to the EU and the member states clearly and fairly. And the list of powers and duties can serve as a great regulatory tool also, by listing what needs to be done or what may be done both as a tool of assessing the real administrative burdens of each EU Act, but also as a means of securing the facilitation of monitoring of member state obligations.

So there is a real opportunity for the EU to easily and smoothly depart from academic debates on vertical versus horizontal integration. To realistically and functionally aim for sustainable integration. For a longer life. Guaranteed and supported by well-informed loyal citizens, who through their understanding of legislation and regulation become participants to (rather than carriers of) EU regulation, EU policy, and ultimately EU ideology and the EU ideal. And all this without much fanfare, just simply a technical stylistic reform in the drafting of EU Acts.

The One in One out regulatory tool is not enough for better legislation or better regulation. Because better regulation and better legislation cannot be limited to a mathematical analysis of how many Acts are introduced and how many are withdrawn in exchange. As is the case with most things in life, solutions must be qualitative. And the measure of sustainable integration for the EU remains the quality of its communication to its citizens.

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Helen Xanthaki is Professor (Teaching) at the Faculty of Laws, UCL, and Senior Associate Research Fellow, IALS, and serves as the Dean of the Postgraduate Laws Programmes of the University of London (Worldwide). She is a member of the Committee for the Scrutiny of the Lawmaking Process at the Presidency of the Hellenic Government, and a Key Regulation Expert for Expertise France.

In her October 2023 study “The ‘one in, one out’ principle – A real better lawmaking tool?” commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, Xanthaki submits that ‘One in, one out’ is a tool for less, not better, regulation and legislation, and, as such, it is not a suitable instrument for better law-making. To achieve effectiveness of legislation, the EU must reform its law-making policy holistically by placing the citizen at the core of its legislative communication. The EP must lead on and defend the citizens’ right to better legislation. To put this reform to effect, the JURI Committee must place itself at the centre of deliberations, via a Working Group dedicated to Better Regulation, to assure a constant reflection on better regulation with the support of a network of European academic experts.

Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.