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May 2011 - Posts

[Legislation] The "Warsmann law": a notice-and-comment process à la française?

One of the interesting questions of administrative reform is setting up mechanisms to enable the direct involvement of the public in the administrative policymaking process. The U.S. Administrative Procedure Act (A.P.A.), adopted in 1946, provided early on such a model especially with respect to informal rulemaking. Section 553 of the A.P.A. stipulates that, when making rules or regulations having binding effect on private parties, the agency must provide notice of its proposal, an opportunity for affected parties to comment, and "a concise general statement" of the basis and purpose of the rules. U.S. scholars have advocated the adoption of equivalent participatory processes in other legal orders; similarly, domestic reformers have looked to the A.P.A. for inspiration when drafting the codes of administrative procedure in their respective jurisdictions.

France has had its share of experimentation with processes purporting to solicit public input and bring the administration closer to the citizens: public inquiry (enquête publique), public debate (débat public), deliberation (concertation). In a similar vein, regulatory agencies overseeing specific public utilities sectors -such as the Autorité de régulation des communications électroniques et des postes in the area of electronic communications and postal services, and the Commission de régulation de l'énergie in the energy sector- employ consultation processes that look analogous to notice-and-comment. All these forms of participation share a common feature: they are sector-specific. They apply to specific areas of public action -for example, energy, telecommunications, urban planning, environmental questions, often at the local level- and are included in specific pieces of legislation, unlike the generalized obligation that the A.P.A. introduced.

A legislative text expected to be officially signed into law in France soon -after having passed through both legislative bodies as well as the scrutiny of the Conseil Constitutionnel last week- seems at first sight to challenge this story. The "Warsmann law" (from the name of the deputy, Jean-Luc Warsmann, that sponsored the bill) or, officially, the law for the "simplification and improvement of the quality of the law" introduces an article (Article 8 in the original bill, renumbered as 16 at the end of the amendment process) that reads:

When an administrative authority is obliged to consult an organization prior to the promulgation of a regulatory act, it may decide to organize an open consultation allowing for the collection of comments from affected persons, on a website or by all other means.

At the end of the consultation, it produces a synthesis of the comments received by the agency, eventually accompanied by complementary elements of information. This synthesis is made public.

This open consultation substitutes for the mandatory consultations in application of a legislative or regulatory provision. The organizations whose opinion must be received in application of a legislative or regulatory provision may offer their comments in the context of the consultation provided for in this article.

As an exception to the provisions of this article, the following consultations remain mandatory: those concerning an independent administrative authority, those requiring the assent (avis conforme) [of the consultative body], those regarding the exercise of a public freedom and those pertaining to the social dialogue.

A decree following consultation with the Conseil d'Etat shall determine the conditions of application of this article, notably the modalities of the organization of the consultation, the duration of which might not be inferior to fifteen days.

Therefore, this statute introduces a system of "open consultation" that may replace the formal, institutionalized process of agencies consulting consultative bodies. This "open consultation" comprises elements that sound familiar from the description of the US notice-and-comment model. More importantly, this process is not sector-specific. Could we then talk about an open consultation practice generalized across the wider spectrum of French administration similar to the American A.P.A.?

I think the features of this new system would provide a clear negative answer to this question, but it would be interesting to first point out the "adventures" this article 8 (or 16) had to go through before its final adoption. The legislative history of the "Warsmann law" suggests that it was included in the final text not without opposition. Article 8 was part of the legislative proposal as submitted by Jean-Luc Warsmann. The National Assembly accepted this article in the first reading. However, the Senate deleted it in the first reading. Then the National Assembly reinserted it in the second reading. The Senate, again, deleted it in the second reading. Article 8 was one of the questions that the commission mixte paritaire (i.e., a committee bringing together seven deputies and seven senators with the aim of reconciling the two legislative bodies on the basis of a common text) had to resolve. This committee ended up including article 8, as adopted by the National Assembly, in the final text of the law -with the rapporteur for the Senate still appearing reluctant. [More information on the "Warsmann law" and the stages of its adoption is available here]

In its decision last week the Conseil Constitutionnel was not asked to and did not rule on the constitutionality of article 8 (most of the complaints were of a procedural nature). Therefore, this provision will soon be positive law. Does this mean that we are witnessing the emergence of a notice-and-comment process à la française?   Even if we put to one side the obvious reluctance of the legislature to adopt article 8 (or 16), I think a fair characterization of the "Warsmann law" would be that it introduces a watered-down version of the US notice-and-comment process for the following reasons.

First, if we look at the statement of reasons accompanying Warsmann's legislative proposal, even though the goal of associating the citizens with administrative decisionmaking is mentioned, the purpose of the text is not so much to strengthen administrative democracy as to streamline administrative operations. The concern is that the latter are often delayed because in the traditional process the consultative commissions do not always meet promptly to issue their opinions; this process may now be replaced by "open consultations."

Second, article 8 is limited in scope: It provides for open electronic consultation only when the original statute stipulates that specific consultative bodies be consulted. It may only substitute for mandatory consultation (consultation obligatoire) and even though there might be many instances of such consultations obligatoires, the provision still falls short of general applicability.

Third, and more importantly, this process is not mandatory. It permits but does not oblige the agency to opt for the open consultation. Thus, it keeps with the tradition of discretionary open consultations in other areas.

Admittedly, an initiative of this nature should not necessarily be judged against the criterion of the older (we might say, traditional) US notice-and-comment model neither was it cast in those terms. In any event, the way in which the article 8 process is designed allows for trial and error, and is therefore a welcome step forward toward the generalization of participatory administrative processes in France. In fact, if we might risk a prediction, we would say that within the next decade, with the increasing familiarization of public authorities with these regulatory processes, a general provision for citizen participation in administrative policymaking will more smoothly be enshrined in the French legal system.

[News] The European Ombudsman's Annual Report 2010

In a press conference in Brussels today the European Ombudsman, Nikiforos Diamandouros, presented his Annual Report 2010. The full Report (79 pages) and an 8-page Overview are available here.

The European Ombudsman explained that the key points of his new strategy include: (a) strengthening the ongoing dialogue with complainants, civil society, and other stakeholders, (b) identifying best practices from Ombudsmen in the Member States, with whom the European Ombudsman cooperates through the European Network of Ombudsmen and (c) enhancing the Ombudsman's role in promoting an administrative culture of service in the EU institutions. Such a culture involves, among other things, taking a proactive approach when interacting with citizens, as well as being ready to do more for citizens than merely to fulfill the institutions' legal obligations. The Overview highlights ten "star cases" that serve as examples of best practice in reacting to complaints. In this respect, the European Ombudsman underscores the example of the European Medicines Agency (EMA): "By taking the important policy step of adopting and publishing a new access to documents policy, EMA gave wider effect to two recommendations that I made to it."

As to the key statistics for 2010, the European Omudsman received a total of 2,667 complaints in 2010, compared to 3,098 complaints in 2009. 744 of those were within his mandate. The number of opened inquiries - 335 - and closed inquiries - 326 - remained stable in 2010 as compared to the previous year. This trend confirms, according to Nikiforos Diamandouros, that more people are now turning to the European Ombudsman for the right reasons.

Regarding the origin of complaints, Germany and Spain remained the source of the greatest number of complaints, but relative to the size of their population, the greatest proportion of complaints came from smaller Member States, namely, Luxembourg, Cyprus, and Belgium. The majority of complaints, i.e., 78%, were submitted by individual citizens, while 22% came from companies, NGOs, or other organizations and associations. However, as Diamandouros points out, complaints from the latter category are more often admissible and also lead to investigations more often.

In more than 70% of all cases received in 2010, the European Ombudsman was able to help the complainant by opening an inquiry into the case, transferring it to a competent body, or giving advice on where to turn. In 55% of the closed cases, the institution concerned accepted a friendly solution or settled the matter. In the other cases, the Ombudsman either did not find an instance of maladministration, or issued a recommendation that was accepted by the institution, a critical remark, or a special report to Parliament. As Diamandouros observes, the sustained reduction in critical remarks issued by his office is further positive evidence that the EU institutions are taking a more proactive role in resolving complaints and enabling win-win outcomes: in 2010, they made critical remarks in 33 cases, compared to 35 cases in 2009, and 44 cases in 2008. Understandably, most inquiries opened in 2010 (65%) concerned the Commission since the Commission is the main Union institution that makes decisions having a direct impact on citizens.

To conclude, with respect to the content of the complaints, by far the most common allegation examined by the Ombudsman was lack of transparency in the EU administration. This allegation arose in 33% of all closed inquiries and included refusal of information and of access to documents. Diamandouros notes with concern that the number of transparency cases has remained consistently high over recent years. Other types of alleged maladministration pertained to problems with the execution of EU contracts or calls for tenders, unfairness, abuse of power, and discrimination.