Rule-making Procedures Research Articles

The Procedure for Admitting New Members to the European Union: Legal Aspect

INTRODUCTION. The article is devoted to the process of accession of new states to the European Union (EU). The authors try to demonstrate the evolution of the procedure for admitting new members since the formation of the European Communities and identify the main subjects of this procedure.MATERIALS AND METHODS. The current research is based on various international legal documents, including the founding treaties of the European Union, as well as acts of EU institutions and doctrinal sources.RESEARCH RESULTS. The research represents a retrospective analysis of the formation of the procedure for accession of new members to the European Communities/EU. It was found out that the norms of the founding agreement set only the general legal framework of the procedure, and its specific content differed through out the existence of the European integration project. The actual content of the accession process is determined by the member states, which, through the institutions of the Communities/Union, primarily the Council and the European Council, formulate the criteria and principles of accession. The Commission also plays a significant role in the process. The role of the European Parliament in this procedure is insignificant, although this institution tries to increase its influence throughout the negotiation process. DISCUSSION AND COCLUSION. To sum up, the accession procedure is typologically close to a special legislative procedure. Since its origin the accession of new states to the EU has been transformed from a rule-making procedure enshrined in the founding treaties to a set of various instruments and practices, including non-legal (political) ones.

Rule-making procedures in the EAEU

The article presents the results of systematization and analysis of the procedures for the adoption of acts by the EAEU bodies. The issues of the fundamentals of legal regulation and practical aspects of rule-making procedures are studied. The question of the correlation between interstate and supranational methods of regulation within the framework of the EAEU is considered. It is concluded that there is a hierarchical institutional structure in the Union, which determines the dominance of the interstate approach and the minimization of supranational regulation. The system of acts of the EAEU bodies is hierarchical in nature, and the only body formed according to a pronounced supranational principle – the EEC Board during the procedures for adopting acts is quite strictly controlled both by other bodies of the Union (the Council of the Commission, the Intergovernmental and Supreme Councils) and by the Member States. As Eurasian integration develops and deepens, the question of transferring additional competencies and powers to the Union’s bodies and expanding the use of the supranational method of regulation, including through the possible emergence of a parliamentary dimension in the EAEU, will inevitably arise.

De Facto Rule-Making Below the Level of Implementing Acts: Double-Delegated Rule-Making in European Union Electricity Market Regulation

Abstract Within the area of electricity market regulation, a practice has emerged in which the chain of delegation has gone beyond the European Commission, resulting in double delegation. During 2015–2017, the European Commission adopted implementing regulations requiring detailed European terms, conditions and methodologies (TCMs) for electricity markets and system operation to be jointly adopted by national energy regulators. Should the latter fail to agree within a predefined time limit, rule-making would move to the Agency for the Cooperation of Energy Regulators. This rule-making procedure entails that, depending on the dynamic within the procedure, different actors would adopt the TCMs. This article examines how double-delegated rule-making unfolds in a novel and emerging practice, evolving beneath implementing acts. By analysing the factors behind whether TCMs are adopted jointly by national agencies or not, the study investigates whether this form of delegated rule-making in a network setting delivers decisions or whether rule-making by a European Union agency is needed.

Policy Diffusion, Environmental Federalism, and Economic Efficiency – How Institutions Influence the Implementation of EU Legislation in Two Nordic Countries

Abstract We explore the changes in central government administration due to European Union (EU) membership and its consequences for policy outcomes and economic efficiency in Finland and Sweden. Both countries became members of the EU in 1995. Upon joining the union, member states are expected to adopt common legislation and are encouraged to develop similar rule-making procedures. The actual implementation of EU directives varies considerably between member states, however. This is also the case for Finland and Sweden. Despite the two Nordic countries for historical reasons having had similar government systems, upon becoming members of the EU, they started to diverge. Using a model of delegation and comparing the more centralized Finnish system with the decentralized institutional setup in Sweden, we show that the Swedish approach leads to a stricter than optimal environmental policy, which in turn makes EU policy non-optimal from a global point of view, ceteris paribus. We also provide empirical support for our findings in the form of some example cases. We focus on environmental policy since this is an area that has been high on the EU agenda.

Counterpoint: Tax Exceptionalism from Notice-and-Comment Rulemaking Procedures Is Bad Policy and Bad Law

Counterpoint: Tax Exceptionalism from Notice-and-Comment Rulemaking Procedures Is Bad Policy and Bad Law

Strategic Management Acts in the Field of National Security

The article summarizes the views of legal scholars on the legal nature of strategic planning documents and supports the position on recognizing them as a type of political and legal acts. From the standpoint of the theory of administrative law, the presence in the documents of strategic planning in the field of national security of the main features of legal acts of governance is shown: by-law; state-governmental nature; legal nature; adoption by a competent subject of public authority; rule-making procedure for adoption. The definition of a strategic management act in the field of national security is formulated, which is proposed to be understood as an official document issued in accordance with the established procedure by the President of the Russian Federation or the Government of the Russian Federation and containing legal norms defining the goals, objectives, content and ways of implementing state policy to ensure and protect national interests and achieve strategic national priorities of the Russian Federation in the long term. It is precisely such acts that largely determine the architecture and content of the entire system of legal acts of management.

Democracy and Executive Power: Administrative Policymaking in Comparative Perspective

This essay on executive rulemaking procedures in the US, the UK, France, and Germany examines how administrative and constitutional law interact when the executive makes policy under delegated authority. Given their differing constitutional structures and legal frameworks, the political incentives for policymaking accountability differ. The US is a separation-of-powers presidential system. Germany and the UK are parliamentary systems with and without written constitutions. The common law underpins the UK’s unwritten constitution. France has a strong president with a relatively weak parliament. The US separation of powers generated statutory requirements for notice-and-comment rulemaking. The legislatures in the German and UK parliamentary systems have little incentive to enact such constraints on their own cabinets. The French system lacks required procedures as well. However, even if political incentives suggest that sitting politicians will have little interest in such reform, the need for greater accountability to the public remains. This essay, drawing on the author’s recent book Democracy and executive power, describes these cross-country differences and argues for ways to produce more democratically responsible executive policymaking. Those concerned about the future of representative democracy should include reform of executive rulemaking procedures in their list of priorities. Structural issues linked to the openness and accountability of regulatory bodies and cabinet departments should not be ignored in the heat of day-to-day crises that soak up the headlines.

POLISH MODEL OF ADMINISTRATIVE PROCEDURE

In the article, the author examines the Polish model of administrative procedure, its nature, structure, taking as a basis the work of Javier Barnes in which the scientist identifies three generations of administrative procedure with the elements: (1) procedure for adjudication, (2) rule-making procedure, (3) collaborative – making public policy and implementing procedure.) The model of administrative procedure in Poland is normative as it is enshrined in the Code of Administrative Procedure. After analyzing its provisions, the author came to the conclusion that the Polish model of administrative procedure has a pronounced jurisdictional character, which is indicated by the principles of administrative proceedings, the structure of administrative proceedings. The jurisdictional model of administrative procedure in Poland remains dominant; it is characterized by a clear polarization of roles, with a "powerful sovereign" on the one hand and a subordinate citizen on the other. However, the Code reflects the provisions that indicate the partial appearance in the classical model of the administrative procedure of the elements of the third generation, which is associated with convergence and globalization. Poland's membership in the European Union prompted the legislator to introduce new, additional provisions in the Code of Administrative Procedure, concerning, for example, Administrative European Cooperation Section 8a, the principle of the peaceful settlement of Art. 13, the use of mediation in administrative proceedings Art. 96a. The presence of these elements is aimed at overcoming this division, creating a relationship between the parties, according to the principle of horizontal communication. The nature of the jurisdictional model of the administrative procedure is changing towards the regulation of a wide range of activities of bodies in the public sphere. Establishing a permanent system of communication between bodies, and between bodies and citizens "becomes the goal of the administrative procedure. Such changes are in line with the requirements of European Union legislation and the principles enshrined in the Code of Administrative Procedure.

An Introduction to Automated Decision-Making (ADM) and Cyber-Delegation in the Scope of EU Public Law

Automated decision-making (ADM) systems are based on software supporting, or replacing, elements of human decision making in implementation of EU law. ADM systems are deployed in an increasing amount of policy areas. They support decisionmaking and rule-making procedures by EU institutions and bodies as well as by Member State bodies acting in the scope of EU law. Improved availability of information and advanced computation power to process such information produces benefits for decisionmaking. But integrating technological solutions into decision making procedures risks introducing potential dysfunctionalities, diminishing individual rights, and reducing accountability. This paper introduces and gives an overview over many of the design questions which the use of ADM in public decision-making procedures in the scope of EU law therefore raises. Can compliance with general principles of EU administrative law and its specific legislative requirements be ensured in an anticipatory manner? Which requirements of technical design of ADM systems and their relation to the data basis, which are used as sources of information searches and analysis are necessary? On the other hand, how should ADM technology relate to elements of human decision making and how to ensure meaningful ex post accountability mechanisms, remedies, and possibilities of effective judicial protection. The paper argues that addressing design questions must consider the nature of the technological integration into decision-making procedures and the decision-making phases in which ADM systems will be deployed. Further, the paper argues that the interface between an ADM system and the underlying data basis defines many of the legal issues relevant. Finally, another premise this paper develops is that it is necessary to distinguish between conditions governing, on the one hand, the quasi rule-making character of ADM systems from, on the other hand, individual decisions made with the help of ADM technology. On this basis, the paper discusses possibilities and requirements of review, especially of legal principles applicable in reviewing decision making with ADM in EU public law.

The al-Ghazali Enigma and Why Shariʿa is Not Islamic LawBy Haifaa G. Khalafallah

This book is the fruit of over two decades of research by the author on conceptual discussions related to shariʿa and fiqh. When Khalafallah was working on her doctoral thesis in the late 1990s at Georgetown University’s history programme, she became acutely aware of the extent of the negative impact Western media and academic literature had on contemporary Muslims by glossing shariʿa as ‘Islamic law’ (pp. 2–3). The title of the book, Why Shariʿa is Not Islamic Law, clearly states her main argument that shariʿa is nothing but a rulemaking procedure of Islam which defies binary characterizations such as secular and religious or modern and traditional. Al-Ghazali of The al-Ghazali Enigma is not the medieval Sufi philosopher, Abū Ḥāmid al-Ghazālī (1058–1111) but Muhammad al-Ghazali (1917–1996) who is remembered as a controversial faqīh and star preacher of twentieth-century Egypt. By combining the intellectual biography of Muhammad al-Ghazali with post-2011 discussions on religion and politics, she strives to demonstrate that shariʿa-derived rulemaking is the living tradition of Islam, which remains highly relevant to contemporary Muslim lives.

Mediated audits

I study optimal contracting where the principal can verify the agent's private information via auditing but cannot contractually commit to audit frequency. Optimal contracting requires sophisticated communication: the agent reports his information to a mediator, who randomly selects a contract. Mediation allows for fine‐tuning the information flow, because the principal observes the selected contract but not the agent's report. Simply offering a menu of contracts is, in general, not optimal. I characterize optimal mediated contracts, determine conditions for when auditing is profitable, and analyze contractual distortions. Mediated contracts can be implemented via negotiated rulemaking procedures, and potentially via sequential communication.

Disparate Impact in Big Data Policing

Police departments large and small have begun to use data mining techniques to predict the where, when, and who of crime before it occurs. But data mining systems can have a disproportionately adverse impact on vulnerable communities, and predictive policing is no different. Reviewing the technical process of predictive policing, the Article begins by illustrating how use of predictive policing technology will often result in disparate impact on communities of color. After evaluating the possibilities for Fourth Amendment regulation and finding them wanting, the Article turns toward a new regulatory proposal.The Article proposes the use of a rulemaking procedure centered on “discrimination impact assessments.” Predictive policing, like a great deal of data mining solutions, is sold in part as a “neutral” method to counteract unconscious biases. At the moment, however, police departments adopting the technology are not evaluating its potential for a discriminatory impact, which might reproduce or exacerbate the unconscious biases its proponents claim it will cure. Modeled on the environmental impact statements of the National Environmental Policy Act, discrimination impact assessments would require police departments to evaluate the potential discriminatory effects of competing alternative algorithms and to publicly consider mitigation procedures. This regulation balances the need for police expertise in the adoption of new crime control technologies with transparency and public input regarding the potential for harm. Such a public process will also serve to increase trust between police departments and the communities they serve.

The Rulemaking Procedure – Definition, Concepts and Public Participation

Abstract The importance of delegated legislation is growing in both the quantitative and qualitative sense. Under the American system, the so-called division of rulemaking authority between the legislative and executive branch was resolved at a very early juncture and in a highly pragmatic manner by applying the fundamental principles of the legislative procedure to the level of the rulemaking procedure, which primarily implies the transparency and openness of the latter. Conversely, Continental Europe did not develop a general theory of public participation which could provide a basis for the search for solutions to the situation. The purpose of this paper is to present different concepts of the rulemaking procedure and discuss the question of public participation. We conclude that, as the quantity and complexity of societal relationships grow, it is fruitful to use the so-called problem-solving model of the rulemaking procedure as a starting point for its procedural arrangement. This allows us to focus on the role that civil society, interest groups and the general public play in the contemporary governance process.

Shaping the aquaculture sustainability assemblage: Revealing the rule-making behind the rules

Certification programs yield global assemblages of producers, consumers, investors, markets, and certifiers that are built around rules that define sustainability. In studying the dynamics and impacts of certification, scholars often refer to “the rules” underlying certification in a manner that makes them seem like immutable mobiles: permanent and unchanging objects that are produced by technical, expert-driven processes and that can be applied in diverse places and contexts. In this paper, we turn attention to the rules and rule-making processes underlying certification to demonstrate the unstable, changeable and contested underpinnings of sustainability assemblages. We explore the World Wildlife Fund (WWF)-sponsored multi-stakeholder Aquaculture Dialogues, an unusually open and participatory experiment in “green” rule-making. Our analysis reveals that rules are never final. Instead, intersections between rule-making bodies and the structure of rule-making procedures create critical debate and contestation over the definition of “sustainability” that structures the aquaculture sustainability assemblage, and over who can and should be empowered to do the defining. This approach enables scholars of certification to rethink the ontology of certification rules as part of, rather than an external ordering principle for, the dynamic and contested nature of sustainability assemblages.

"Let's Get Together": What Tax Should Learn About Collaborative Regulation Development

High school civics classes and Schoolhouse Rock! create an image of democracy and lawmaking as resting on a foundation of voter participation in the law-making process, either through the election of representatives or the casting of votes on a ballot issue. However, over time Congress has delegated to administrative agencies substantial authority to make law. As the government and society have become more complex, Congress has had to delegate much of its legislative authority to administrative agencies just to keep up with the growing need for federal regulation. Indeed, administrative agencies create many times more laws than Congress each year. These agencies are part of the Executive Branch of government. Each agency is usually created to address a single area, i.e., the Environmental Protection Area and the Federal Election Commission. Their Congressional mandate usually allows an agency to operate largely independently and allows an agency to develop specialized knowledge and technical expertise with respect to the assigned subject matter; expertise that Congress would be unable to develop in light of the very broad areas in which Federal legislation operates. To protect against agency overreaching and ensure that the lawmaking function remain democratic, administrative rulemaking procedures must be open, transparent, and accessible.

“LET'S GET TOGETHER”: COLLABORATIVE TAX REGULATION

High school civics classes and Schoolhouse Rock! create an image of democracy and lawmaking as resting on a foundation of voter participation in the law-making process, either through the election of representatives or the casting of votes on a ballot issue. However, over time Congress has delegated to administrative agencies substantial authority to make law. As the government and society have become more complex, Congress has had to delegate much of its legislative authority to administrative agencies just to keep up with the growing need for federal regulation. Indeed, administrative agencies create many times more laws than Congress each year. These agencies are part of the Executive Branch of government. Each agency is usually created to address a single area, i.e., the Environmental Protection Area and the Federal Election Commission. Their Congressional mandate usually allows an agency to operate largely independently and allows an agency to develop specialized knowledge and technical expertise with respect to the assigned subject matter; expertise that Congress would be unable to develop in light of the very broad areas in which Federal legislation operates. To protect against agency overreaching and ensure that the lawmaking function remain democratic, administrative rulemaking procedures must be open, transparent, and accessible.

Transnational and Trans-Territorial Rule-Making - A Basic Framework

This Article discusses the reality of executive rule-making procedures with trans-territorial effect, with other words, the creation of non-legislative rules which have an effect outside the territorial limits of the jurisdiction of origin. It maps the phenomenon, discusses some of its central challenges for the realization of general principles of law and considers possible legal approaches addressing these. One of the most important issues thereby is to find workable solutions in the context of the pluralism of sources of law – national, supranational and international.

The Unique Case of Treasury Regulations Issued to Prevent Abuse

The Administrative Procedures Act prescribes procedural requirements that govern the rulemaking activities of administrative agencies, including the Internal Revenue Service. It imposes, inter alia, notice and comment requirements which an agency may only bypass for good cause. While the Treasury Department’s assertion of the good cause exception when promulgating regulations to prevent tax abuse is a plausible application of the exception, it is distinguishable from typical assertions of good cause in one critical respect. Unlike many other agencies claiming good cause to bypass the notice and comment procedure, the Internal Revenue Service’s organic statute provides a viable alternative by allowing for the retroactive application of regulations issued to prevent abuse. As a result, two functionally equivalent approaches to combat tax abuse emerge, differentiated only by the presence or absence of public participation in rulemaking processes. By comparing the public policy ramifications of these different rulemaking approaches, I contribute to key policy debates centering on administrative rulemaking procedures. I find that issuing regulations under the good cause exception provides efficiency gains, but does so at the expense of increased litigation risk and a failure to mitigate the principal-agent problem animating the rulemaking requirements in the Administrative Procedures Act. On the other hand, regulations issued retroactively reduce agency costs, provide modest efficiency gains and partially outsource the burden of compliance to interested constituents who participate in rulemaking processes. On these grounds, I conclude that Treasury’s assertion of good cause to promulgate regulations to prevent abuse is unconvincing given the viable alternative of retroactive application of finalized regulations. These conclusions are specific to the trade-offs inherent when Treasury promulgates regulations to prevent tax abuse, but also speak to IRS compliance with the Administrative Procedures Act more generally.

It Means What It Says: Deciphering and Respecting the APA's Definition of 'Rule'

Justice Scalia and the rest of the United States Supreme Court has long recognized that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. This approach applies with considerable force to terms specifically defined by statute. By their very nature, such definitions must have real, substantive content; for otherwise there would be no purpose in defining the critical terms of a statute. And while we may not expect Congress to display perfect craftsmanship, if the definitions are ignored, there would be no statutory criteria at all to guide agency action. A lack of consistent, applicable criteria can, in turn, lead to regulatory confusion, with overlapping effects in other areas of the law that apply similar terms. This effect is only magnified when considering the Administrative Procedure Act’s (APA) definition of “rule” — perhaps the most important (and misunderstood) term in agency practice. Specifically intended to reduce the previous great confusion in the terms used in the field of administrative law, the definition of rule was always understood to be “very important” and was drafted to increase “clarification and certainty.”But unfortunately, despite the best efforts of Congress, lawyers from the beginning have been puzzled by the definition, and the confusion has not gone away. Courts, agencies, and practitioners have long neglected or simply failed to grasp the basic meaning of the 79 words in the broad statutory definition of rule, which encompasses policy statements, interpretive rules, and other items beyond standard regulations, which represent only one subcategory of the broad definition. This distortion is not harmless, as the degree of adherence to the basic definition of “rule” can have important consequences in determining whether various adjudicatory or rulemaking procedures apply. Moreover, the scope of the Congressional Review Act depends in large part upon its statutory definition of covered “rules,” which borrows liberally from the APA’s definition. And outside of administrative procedure, there are many miscellaneous statutes that rely upon categorizing “rules.”While the APA’s definition is admittedly somewhat long-winded, its 79 words and numerous clauses hold important meaning. Its breadth is not a “natal defect,” as then-Professor Scalia once asserted, but evidence of the importance of the individual terms making up the definition. Hopefully, this essay helps demonstrate the significance of these terms and clauses, and convinced readers not to look upon the definition with “benign disregard,” as Professor Scalia once advised. On the contrary, practitioners should follow Justice Scalia’s more recent admonitions opposing “a definition of rule that is meaningless,” and urging that “what Congress enacted...must be applied according to its terms,” because the definition can be applied, sensibly, according to its terms. Someday, perhaps Congress will heed the occasional calls to amend the definition, but until then, what alternative do we have, other than faithful, reasoned adherence to the statutory text? Ad hoc application and the resulting confusion are not the answer.

The virtue of conflict: an institutional approach to the study of conflict in community forest governance

SUMMARY Conflict may simultaneously help and hinder the local governance of community forests. Based on 499 observations of forest user groups included in the International Forestry Resources and Institutions (IFRI) database, it is shown here that variables which are associated with good community forestry outcomes also correlate positively with the occurrence of conflict. This finding seems to be incongruent with the notion that conflict undermines collective action and therewith the potential for sustainable governance of community forests. Individual preferences cannot be easily amalgamated into a group preference. Efforts to articulate group preferences depend on the institutions chosen to reach compromises. These institutions are commonly challenged by those whose preferences are poorly served, adding to the potential for conflict. Therefore it is argued here, that the study of conflict in community forest governance should incorporate rules and rule-making procedures in its analyses.