Over the decades, one of the greatest successes of the European Union (EU), at least compared to other international organisations, has been the efficacy of its output. The impressive acquis of rules that the participating Member States have not only accepted, but also actively endorsed and received within their national legal orders, contrasts significantly with that of classic public international law. Whether that output is still fit for purpose today, however, constitutes the leading question of the book reviewed here, a 300+-page tour-de-force from the grande dame of EU legislative studies, Helen Xanthaki. As she expounds in the introductory chapter, her approach to the topic intends to transcend the stale dichotomy of pursuing either a ‘widening’ (further enlargement) or ‘deepening’ (more integration) agenda. Rather, the challenge lies in getting the EU to do what it already does more effectively (1–2).
This ambition has long been high on the EU’s priority list (as it has been on that of countless governments and political parties). Yet Xanthaki’s focus is not merely on the drafting stage but concerns, in particular, the implementation dimension and most advisable transposition techniques. In conducting such a holistic analysis, she rightly points to the manifold flaws with which we have become familiar, especially the prevailing ambiguity in how EU rules are phrased and styled (37–38). The need for reform is evident, if only to avoid Member States, for fear of making mistakes, resorting to mindless copy-pasting strategies (with dire consequences for citizens’ rights). Indeed, ‘[t]here is little doubt that change is urgently needed’ (91). If, instead, officials at the national level are enabled to extract the main elements needed to transpose effectively, diligent and correct implementation may ensue, leading ‘ultimately to true regulatory success for the EU’ (138).
In the initial chapters (Chapters 2–6), Xanthaki takes her cue from Grant Thornton’s authoritative legislative drafting methodology, consisting of five stages: understanding; analysing; designing; composing; and verifying. The second stage is said to reveal ‘the inherent complexities of legislating for transposition’ (60). She argues for a creative and quite captivating approach, introducing a layered structure, dividing the contents of EU instruments into three clearly distinguishable parts. An opening section ought to convey the key message in an accurate and enticing way. The technical details should follow immediately thereafter. Recitals, definitions, review clauses and other elements are best left for last. This may seem ‘a daunting task’ yet in practice, in her view, it demands but ‘a minor tweak’ (94).
In making her case, Xanthaki deftly weaves together earlier gems from her oeuvre, also inserting helpful tables and illuminating diagrams at various junctions. Moreover, in going through Thornton’s fourth stage, the author indulges in some great comparative forays reviewing Member States’ reception of EU rules (e.g. 108–24 regarding the Victims’ Rights Directive), which might appeal to a comparativist audience. As intermezzi, or early encores, we are treated to chapters on the two very specific, and not strictly connected, scenarios of ‘Legislating for accession’ (Chapter 7) and ‘Drafting for exit’ (Chapter 8), but both very timely in light of the EU’s current (geo)political context.
In the heart of the volume, the author’s ambition to outline future enhancement informs the two core chapters (Chapters 9–10), together encompassing roughly one-third of the book and containing detailed guides for lawyers or policy advisors confronted with EU regulations and directives, respectively. Their stated objective is to dissect recent examples and identify strengths and weaknesses, as well as highlight the potential for repurposing, thus testing the overall viability of Xanthaki’s recommendation to embrace the ‘layer cake’ theorem (the central aim of which is likely to be smoother execution, as regulations officially require no transposition). She proceeds to subject the selected instruments to a justified critique, identifying the key issues of, inter alia, garbled definitions, confusion of substantive with declaratory statements and the tendency to fall for over-precision, noting that including tables of contents would be of assistance. The reader stumbles repeatedly on amusing condemnations, e.g. ‘[t]his is a wish list, not a legal provision’ (203). The cleansed and refurbished acts which are the eventual outcome indeed look very attractive or, in the words of the author herself, positively ‘breath-taking’ (320).
Obviously, Xanthaki cannot be blamed for being a tad idealistic. Even so, her radical suggestions, like limiting the (frequently excessive) number of recitals in the preambles of EU instruments or eliminating them altogether (see, e.g. 180), are not that easily implemented. Even when replete with self-evident statements, preambles essentially cater to (and immediately satisfy) participating stakeholders and policy actors, not least the Members of the European Parliament who seek to earn their place in the history books. One may experience a more fundamental hesitation towards the author’s emphasis on a ‘user-centred perspective’, as she repeatedly states that the main users of EU legislation are (to be) the Union’s citizens—yet can they genuinely be regarded as its structural beneficiaries? While rules serve the population, principally, they intend to address and put pressure on the supervising public authorities. The individual as a wholly direct addressee remains rare, particularly in relation to EU directives which target the Member States themselves. When placed into context in this way, the overall framing of Xanthaki’s venture comes across as being pitched at the wrong angle—indeed, as she concedes elsewhere, lay audiences are in any case usually scared away by legal formulations.
Another element that the book seems to neglect slightly is the fact that the crafting of EU rules constitutes a multilevel, as well as a multiparty enterprise. On the path to their adoption, original meanings easily get lost in translation. While it is then instructive to posit Idealtypen, such an exercise is difficult given the realities of everyday life in Brussels and Strasbourg. Even if a general restructuring could be enacted along the lines Xanthaki proposes, a measure of deliberate ambiguity (intrinsic to language) will always continue to feature. The similarly utopian iterations sketched in the penultimate chapter (proposing, inter alia, broader impact assessments and consultation) do not inspire confidence for the same reason. Towards the end, the author acknowledges the numerous pitfalls for meaningfully boosting legislative quality inherent in the supranational architecture of the EU, which hampered the achievement of the earlier ‘Better’ and ‘Smart Regulation’ initiatives (330–32). Here, a commendable dose of realism does shine through. However, every thoughtful marker on the road to perfection should remain warmly welcome—and setting those down, of course, is many a scholar’s bread and butter.
Early on in her treatise, Xanthaki approvingly cites her colleague Luc Wintgens, who once designated rulemaking as a necessary evil, inhibiting the freedom of legal subjects to do as they please (46). The creed sounds eerily libertarian, though well suited to the present era. Defying dichotomy yet again, perhaps the choice is not between more or less. We cannot do without laws, but must endeavour to optimise them. The world, and the EU within it, would likely become a better place if at least some of Helen Xanthaki’s precepts were to be heeded.
