European Economic and Social Committee
INT/754
Self-regulation and
co-regulation
Brussels, 22 April 2015
OPINION
of the
European Economic and Social Committee
on
Self-regulation and co-regulation in the Community legislative framework
(own-initiative opinion)
_____________
Rapporteur working alone: Jorge Pegado Liz
_____________
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 1/16
Rue Belliard/Belliardstraat 99 — 1040 Bruxelles/Brussel — BELGIQUE/BELGIË
Tel. +32 25469011 — Fax +32 25134893 — Internet: http://www.eesc.europa.eu
EN
On 10 July 2014 the European Economic and Social Committee, acting under Rule 29(2) of its Rules
of Procedure, decided to draw up an opinion on
Self-regulation and co-regulation in the Community legislative framework
(own-initiative opinion).
The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 31 March 2015.
At its 507th plenary session, held on 22 and 23 April 2015 (meeting of 22 April), the European
Economic and Social Committee adopted the following opinion by 117 votes to 46 with 9 abstentions.
*
*
*
1.
Conclusions and recommendations
1.1
Self-regulation and co-regulation are mechanisms for regulating economic and social
relations or commercial practices among the various economic stakeholders; they may be
decided spontaneously or be imposed.
1.2
They should be viewed as important instruments for complementing or supplementing hard
law, but not as an alternative to it unless there are "fundamental rules" providing a sufficient
enabling basis.
1.3
Neither the EU treaties nor Member States' constitutions provide any such enabling basis.
1.4
In order for them to be a valid, recognised regulatory instrument in any legal system, their
configuration and ambit must be defined by specific precepts that are legally binding and
enforceable, whether at national or Community level, respecting at the same time the nature
of these instruments, especially the voluntary agreement of the participants.
1.5
The parameters for recognising these regulatory instruments must be quite clear, as must the
principles governing them and their limits as an accessory regulatory instrument in the legal
system concerned.
1.6
Irrespective of the sectors involved, and without prejudice to the establishment of specific
requirements in special cases, these general principles for both self-regulation and
co-regulation should include the following:
a) Compliance with EU and international law, including international trade agreements
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 2/16
b)
c)
d)
e)
f)
Transparency and publicity
Representativeness of the parties concerned
Prior consultation of the parties directly concerned
Added value for the general interest
Non-applicability
 when the definition of fundamental rights is at stake
 or in situations where the rules must be applied uniformly in all the Member States
g) Being subject to control by Community and national judicial bodies
h) Monitoring of the degree and success of their implementation, using objective criteria and
reliable indicators defined in advance and specified according to sectors and objectives.
i) Checks and follow-up of their implementation by preventive measures or sanctions, in
order to ensure their effectiveness
j) Provision of a system of fines or other penalties, such as expulsion or loss of accreditation
of participants
k) Possibility of periodic review in the light of changing situations, legislation and the
aspirations of their signatories
l) Clear identification of financing sources.
1.7
The Interinstitutional Agreement (IIA) is an important step in defining the scope of selfregulation and co-regulation at Community level.
1.8
A review of it should:
a) identify a binding legal base;
b) structure the IIA as a specific instrument under the terms of Article 295 TFEU;
c) redefine basic concepts in line with the most recent guidance in the field, which
distinguishes self-regulation and co-regulation and recognises intermediate forms such as
those promoted by EU recommendations and communications;
d) stipulate clearly that it must be possible for any ensuing disputes to be dealt with by
extra-judicial dispute settlement systems.
1.9
The EESC also thinks that the agreement could usefully be supplemented by a
recommendation to the Member States encouraging them to adopt the same principles and
precepts at national level.
1.10
The EESC calls on the Commission, the European Parliament, the Council and the Member
States to give priority to revising the IIA as proposed in this opinion, and to refer the
proposed revision to it for an opinion.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 3/16
2.
Introduction: purpose
2.1
In various fields and in a number of national and international bodies, self-regulation and
co-regulation have long been considered a vital supplement to regulation by other bodies, in
order to ensure that a range of economic and social activities are properly regulated.
2.2
At EU level, it is the EESC - chiefly through its Single Market Observatory - which has been
the most committed in defining and highlighting the role of self-regulation and co-regulation:
it has referred to them in numerous opinions, especially those issued by the INT section1. To
assist in its work, in March 2008 under the auspices of the SMO it set up a database on
self-regulation and co-regulation which it has kept updated with the various national and EU
experiences in this field.
2.3
The subject has in the meantime been dealt with in depth in academic circles, by eminent
professors, especially in the field of contract law, corporate governance, social responsibility,
internet, e-commerce, product safety, professional services, the environment, advertising and
the audio-visual sector in the single market.
2.4
However, what is still lacking is a political-legislative discussion to clearly define the legal
framework that should govern the operation of these instruments at EU level. This should
specify their legal nature, lay down conditions for their validity, define their areas of
application, clarify links with hard law, and set down their limits in a consistent, coherent and
harmonised framework.
3.
Concepts and definitions
3.1
"Straight regulation" is generally understood as the body of rules created by states or
governments, and produced by the traditional democratic systems of nation-states and their
equivalents in supranational institutions based on democratic elections, such as acts passed by
the US Congress or the regulations and directives of the European Union. It generally denotes
legislation in the wide sense, laid down by the legislative authority or by the executive where
so authorised; its provisions are accompanied by coercive means for enforcing them, if
necessary by force, and by civil or penal measures to punish failure to comply with them
("hard law").
3.2
The concept of self-regulation has its origins in behavioural psychology. When applied to the
economic sphere, it broadly denotes the adoption by economic operators of certain rules of
conduct among themselves or in relation to third parties in the market and in society,
adherence to which is agreed among themselves, without any external coercive mechanisms.
1
See: http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 4/16
3.3
A range of types of self-regulation have developed, with a variety of more or less scientific
classification criteria, more particularly:
a) Original or delegated self-regulation. Depending on the rules drawn up, this may simply
entail a self-commitment on the part of the interested parties (also known as "private
self-regulation"), or may instead involve a higher governing body (the state, regulatory
and sectoral bodies, European Union) which sets certain binding parameters (also known
as "public self-regulation");
b) Legal, customary or case-law-based self-regulation, whose source lies in law, particularly
constitutional or supranational law (e.g. Community law), traditional "market practices
and customs", today termed "good practice", or law reports;
c) National or transnational self-regulation (also known as "private transnational
regulation"), depending on whether it only covers domestic matters or derives from
agreements signed by private operators, businesses, NGOs or independent experts setting
technical standards, interacting with international or intergovernmental organisations.
3.4
Lastly, co-regulation generally refers to a form of regulation of stakeholders that is promoted,
guided or controlled by a third party which is either an official body or an independent
regulatory authority, normally with oversight and monitoring powers and in some cases with
the power to impose sanctions.
3.5
Although often considered to be synonymous, codes of ethics and codes of practice reflect
two separate concepts which need to be kept distinct.
3.6
Both concepts involve a compilation of rules or standards deriving from self-regulation or
co-regulation processes, and represent the most sophisticated method of translating the
interested parties' agreement thereon; they aim to make the set of rules and the way they are
applied transparent and accessible to all interested parties.
3.7
However, codes of ethics concern deontological standards for the exercise of certain
professions whose practitioners are empowered to regulate themselves under national laws or
international provisions governing the exercise of the free professions (doctors, lawyers,
journalists and so on).
3.8
Codes of practice apply rather to the compilation of self-regulation or co-regulation
provisions in the sense used in the present opinion.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 5/16
4.
The current EU legal framework for self-regulation and co-regulation
A) The concepts of "better lawmaking", "smart regulation" and "simplification"
4.1
At EU level, it was not until the March 2002 Lisbon European Council that the European
Commission launched an initiative under the general heading of "Better regulation", based on
the June 2002 Action Plan for Better Regulation2 and followed by the major interinstitutional
agreement between the European Parliament, the Council and the Commission on better
lawmaking3.
4.2
Better - and, if possible, less - lawmaking has been an abiding objective of single market
policy4. It has been consistently supported by the EESC in various opinions5, with the aim of
finding the best ways to make the legislative environment more user-friendly and
understandable to business, workers, consumers and civil society organisations.
4.3
The EESC has commented in detail on these issues, both in response to Commission
proposals and also by putting forward its own innovative suggestions, such as The proactive
law approach: a further step towards better regulation at EU level6.
B) The position of self-regulation and co-regulation in the current Community legal
framework
4.4
Excepting the abovementioned Interinstitutional Agreement on better lawmaking, it must be
acknowledged that the question of self-regulation and co-regulation was relatively absent
from the Commission initiatives and concerns listed above7.
4.5
A number of important aspects of this text should be highlighted:
a) The reopening of the question of the interpretation of the principles of subsidiarity and
proportionality now enshrined in Article 5 of the TEU and in its Protocol No 2, in the
light of which the use of self- and co-regulation mechanisms should be approached.
2
3
4
5
6
7
European Governance - A White Paper, COM(2001) 428 final, in OJ C 287, 12.10.2001, and the Communications on Better
Lawmaking, COM(2002) 275, 276, 277 and 278 final of 5 June 2002.
On this question, it is useful to see the following articles by Linda A.J. Senden: Soft Law, Self Regulation and Co-regulation in
European Law: Where Do They Meet? (in Electronic Journal of Comparative Law, Vol. 9, 1 January 2005) and Soft law and its
implications for institutional balance in the EC (in Utrecht Law Review, IGITUR, Vol 1, No 2, December 2005, p. 79).
See the SLIM project - Simpler Legislation for the Internal Market (COM(90) 559 final and COM(2000) 104 final).
See: http://www.eesc.europa.eu/?i=portal.en.soc-opinions&itemCode=32858.
OJ C 175, 28.7.2009, p. 26.
In particular the successive annual reports on monitoring the application of Community law, several reports on the strategy for
the simplification of the regulatory environment, and the frequent strategic reviews of the EU's Better Regulation programme.
Noteworthy exceptions are the references made in the Commission working document - First progress report on the strategy for
the simplification of the regulatory environment, Brussels, COM(2006) 690 final, 14.11.2006.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 6/16
b) Making these mechanisms part of the Better Regulation programme, with a view to
"legislating less to legislate better".
c) The clear distinction between both of these mechanisms and the "open method of
coordination" (OMC), the scope of which is specified in Article 6 TFEU.
d) Similarly, the clear distinction between these mechanisms with regard to what is usually
known as soft law8, such as preparatory or information acts (e.g. white and green papers,
action plans and programmes), interpretative acts such as the De Minimis Communication
on competition law9, conclusions, declarations, resolutions and, lastly, recommendations
and opinions, covered by Article 288 TFEU10.
4.6
However, by its nature, this "agreement" represents little more than an interinstitutional
"undertaking" and does not in itself lay any legal obligation on third parties11. On the other
hand, especially with regard to self-regulation, the Commission considers that the Community
institutions must abstain from such voluntary initiatives12and should simply verify whether
the practices enshrined in it are in keeping with the provisions of the Treaty.
4.7
Regarding co-regulation, for which the IIA appears to express a clear preference, the
institutions intend to promote agreements between stakeholders, defining the bounds of such
agreements in legislative acts, verifying that they comply with fundamental legislative texts
and with the rules governing their drafting, and monitoring their application. There are
however no more than ten or so cases in which this intention has been borne out13.
8
9
10
11
12
13
See the definition in Linda Senden, Soft law and its implications for institutional balance in the EC in Utrecht Law Review,
IGITUR, Vol 1, No 2, December 2005, p. 79).
Doc. C(2014) 4136 final, 25.6.2014.
The Commission is referring to instruments of this type, rather than self-regulation or co-regulation, in for example its
Communication on Tax policy in the European Union - Priorities for the years ahead (COM(2001) 260 final, in OJ C 284,
10.10.2001, p. 6), point 4.3 in particular.
As Linda Senden explains in Soft Law, Self Regulation and Co-regulation in European Law: Where Do They Meet?, quoted
above: "As regards the Interinstitutional Agreement on better law-making, its having at least binding force inter partes can be
defended on the basis of two arguments. Firstly, it contains a number of rather compelling terms (‘agree’, ‘will’), which can be
said to express the intention of the institutions to enter into a binding commitment. A confirmation of this intention can also be
seen in its points 37 and 38 on the implementation and monitoring of the Agreement, providing, inter alia: ‘the three institutions
will take the necessary steps to ensure that their staff have the means and resources required for the proper implementation of
the provisions of this Agreement’ (point 38). Secondly, where ‘agreed acts’ are specifically intended to reinforce
interinstitutional cooperation such as the Interinstitutional Agreement at issue here, it can be argued that there is a specific duty
of cooperation which in conjunction with the duty of sincere cooperation laid down in Article 10 EC may actually lead to the
conclusion that such an agreed act must be considered binding upon the concluding parties".
As clearly set out in the Commission's 2002 Action plan, "unlike co-regulation, self-regulation does not involve a legislative act"
(COM(2002) 278 final, p. 11).
Including the following:
a)
The Resolution of the Council and the Representatives of the Governments of the Member States meeting within the
Council of 1 December 1997 on a Code of Conduct for business taxation.
b)
Regulation (EC) No 80/2009 on a Code of Conduct for computerised reservation systems, OJ L 35, 4.2.2009, p. 47.
For further examples, see: http://www.eesc.europa.eu/?i=portal.en.soc-opinions.32859.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 7/16
4.8
In any event, the IIA does not effectively define a legal framework for the use by the EU
of these mechanisms, except for:
a) the guarantee of their transparency,
b) their non-application when fundamental rights or major policy options are at stake,
c) or in situations where the rules must be applied uniformly in all the Member States.
4.9
At the European Parliament, this question has been highlighted in a number of resolutions,
as well as in the abovementioned report by the Committee on Constitutional Affairs on the
Interinstitutional Agreement on better lawmaking between the European Parliament, the
Council and the Commission14.
4.10
A wide variety of EESC opinions have stressed the advantages, but also limitations and
tightly and clearly circumscribed objectives, of the use of self-regulation and co-regulation15.
The EESC's thinking on this subject may be summarised as follows:
a) Self-regulation must comply with the law and be supported by the law; it must be capable
of implementation, verification and control; it must also be effective and provide clear
channels for redress, particularly across borders.
b) Co-regulation combines the elements of legislation, more especially in its predictable and
binding nature, with the more flexible regime of self-regulation. The challenge for
co-regulation is to define, maintain and preserve policy goals while allowing for greater
flexibility in the regulatory framework.
c) In a democratic political framework, private regulation must generally represent a
development or application of public regulation, possibly replacing it in specific areas.
This would include unwritten rules originating in customary practice or internal rules that
the legislator and the public authorities intend, explicitly or implicitly, to enforce: codes
of conduct for certain professions, for example.
d) The success of co-regulation and self-regulation depends on several factors: the account
they take of the general interest, the transparency of the system, the representativeness
and skill of those involved, the existence of assessment and supervision mechanisms and
14
15
Rapporteur: Monica Frassoni (A5-0313/2003 of 25 September 2003).
Particular reference should be made to the positions held by the EESC in the following opinions:

Simplifying rules in the single market (SMO), rapporteur: Bruno Vever (OJ C 14, 16.1.2001, p. 1)

Simplification (additional opinion), rapporteur: Kenneth Walker (OJ C 48, 21.2.2002, p. 130);

OJ C 112, 30.4.2004, p. 4 (rapporteur: Daniel Retureau)

Priorities of the Single Market 2005-2010, rapporteur: Brian Cassidy (OJ C 255, 14.10.2005, p. 22)

How to improve the implementation and enforcement of EU legislation, rapporteur: Joost van Iersel (OJ C 24, 31.1.2006, p.
52)
and in particular the Information Report of 24 January 2005 for which Bruno Vever was rapporteur.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 8/16
the effectiveness of the monitoring - including sanctions if necessary - and a mutual spirit
of partnership between the parties concerned and the public authorities and society in
general.
e) Co-regulation and self-regulation offer many advantages: they remove barriers to the
single market, they simplify rules, they can be implemented flexibly and quickly, they
free up legislative capacity and ensure the co-responsibility of the stakeholders involved.
f)
5.
They also have their limits, which depend primarily on effective monitoring and
sanctions, certainty as to whether the parties subscribe to the codes of conduct agreed and
total compatibility with all existing legal rules and on the need for an adequate legislative
framework in areas affecting health, safety and services of general interest.
The role of regulation, self-regulation and co-regulation: definition and legal basis
a) The need for a legal basis
5.1
The European Union's founding text defines it as a community of law, reflecting the
well-known concept of the rule of law. In a community of law, the validity of any rule
depends on an enabling provision which must first be present in the founding text and
subsequently in the various legislative acts that make up the regulatory pyramid.
5.2
The EU's founding text is now composed of the TEU and TFEU treaties, with equal legal
value (Article 1(3) TEU) and the European Charter of Fundamental Rights, which is now an
intrinsic part of it and also has the same legal value (Article 6 TEU). Any EU legal act must
have its foundation or legal basis in a precept of this founding text, whether this concerns
direct competence to legislate, or a delegation of that competence (delegated acts and
implementing acts governed by Articles 290 and 291 TFEU).
5.3
The only competences accorded to the EU in the Treaty are those conferred on it by the
Member States under the principle of conferral (Articles 4(1) and 5(2) TEU); these
competences may be exclusive or shared (Article 2(1) and (2) TFEU), and their interpretation
and application are limited by the principles of subsidiarity and proportionality (Article 5(3)
and (4) TEU).
5.4
The EU may only delegate the exercise of its legislative competence when specifically
authorised to do so, and may only delegate the powers conferred on it (Article 13(2) TEU).
5.5
The recognition by the EU institutions (Council, Parliament and Commission) of an
"alternative" area to their legislative competence can only be understood as a "delegation" of
the powers conferred. Accordingly, in order for this to be valid as "Community law", it is
vital that this possibility of delegation be clearly provided for in the founding texts, although
the relevant implementing arrangements and requirements can be left to secondary legislation.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 9/16
5.6
In fact, no such legal basis can be found, either explicitly or implicitly, in the founding texts,
including the European Charter of Fundamental Rights, not even with a very broad
interpretation of Article 11 TEU.
5.7
Lastly, the IIA does not, of itself, constitute a source of Community law; nor does it authorise,
with binding effect on third parties, any delegation of powers resulting from the IIA definition
of the use of alternative regulation mechanisms "in suitable cases or where the Treaty does
not specifically require the use of a legal instrument" (point 16).
5.8
Irrespective of the "legitimation" sought in various secondary law instruments and the more
or less detailed definition of the principles and conditions that such mechanisms must respect
in order to be recognised at EU level by the institutions with legislative power, what is
lacking is an enabling provision authorising these institutions to delegate their legislative
power to such mechanisms, as a legitimate alternative to the Community regulatory
instruments defined in the Treaties.
b) Specific instrument for defining self-regulation and co-regulation
5.9
A separate issue is whether, rather than treating such mechanisms as an alternative to EU
legislative competence, they should be used as a means of completing or supplementing
that legislation, within a legal framework established and defined in advance with total
transparency.
5.10
The EESC considers that this framework must be defined as a general rule on the basis of the
Treaties and the Charter of Fundamental Rights, and not left to discretion on a case-by-case
basis for each secondary or subordinate legislative act.
5.11
This definition should be contained in a specific, binding interinstitutional agreement
under Article 295 TFEU, with its application subject to possible scrutiny by the Court of
Justice.
5.12
Additionally, and as it is up to the EU to "advise" Member States to follow the model
established at EU level in their national legal systems for forms of self-regulation and
co-regulation at national, regional or local level, the EESC considers that the appropriate
instrument would be a recommendation setting out the principles and requirements laid
down in the new IIA and advising Member States to adopt and implement them at those
levels in their domestic legal system.
5.13
Lastly, the EESC considers that as the representative body of organised civil society
(Article 304 TFEU), it should be consulted on the terms of this new agreement.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 10/16
c) Redefining basic concepts
5.14
The new IIA should redefine the concepts, types and methods of self-regulation and
co-regulation so that they more accurately reflect the actual situation.
5.15
In fact, the concepts of co-regulation and self-regulation found in the current IIA do not tally
with any recognised legal concepts, and do not properly distinguish the two types of
arrangement in the light of differences in the legal systems they come under.
5.16
Moreover, the two types defined in the IIA do not provide a full picture. For example, they do
not cover certain arrangements which are the result of a combination of soft law (e.g.
recommendations) or private agreements (e.g. round tables), or private transnational
regulatory agreements.
5.17
Lastly, the IIA omits the role that Community regulatory bodies should have as an
independent 'third party' not involved in the framing and negotiation of co-regulation
agreements, as occurs with various regulators at national level in a number of sectors.
d) Basic principles and essential requirements
5.18
The future IIA should devote more attention to the clear and precise definition of a general set
of basic principles and essential requirements which self-regulation and co-regulation
mechanisms must meet in order to be recognised and/or recommended by the EU.
5.19
It should be noted that forms of self-regulation could be created at EU level outside the IIA
framework, based on freedom of bargaining and of association, which are totally legitimate if
they comply with the general principles of EU law but can only be recognised in the IIA
framework if they meet the requirements laid down therein.
5.20
The current IIA already identifies some of these (as mentioned above) which should be kept;
however, they could perhaps be better defined, especially as regards the cases identified as
non-applicable when fundamental rights are at stake, in relation to major policy options, or in
situations where the rules must be applied uniformly in all Member States.
5.21
However, theoreticians and the experience of various economic players have identified a
whole series of other principles and requirements, which may be summarised as follows:
a) Self-regulation and co-regulation must be grounded in a general interest approach and
must not simply be for the benefit of regulatory bodies.
b) They must always respect all existing legal and judicial requirements in Europe, starting
with the objectives and provisions of the EU Treaty, the Charter of Fundamental Rights
of the European Union, and the European Convention on Human Rights. They must also
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 11/16
c)
d)
e)
f)
g)
h)
16
17
18
19
be compatible with international law and international trade agreements, especially the
provisions laid down by the WTO.
They must be subject to judicial review by EU and national courts.
They must be transparent, providing practical information that is accessible to all, without
difficulty or prohibitive costs, and their objectives should be stated clearly and
unequivocally.
Their achievement should be measurable using objective criteria and reliable indicators
defined in advance by the Commission by means of ex ante or ex post impact studies;
these could either be carried out directly or entrusted to duly certified public or private
independent assessors.
The representative nature of the partners should ensure that the rules agreed on are
properly enforced and that the provisions are credible and effective. Their
representativeness should be proportionate to the sector concerned, at inter-trade or
sectoral level, as well as to the scope of the provisions adopted; if necessary, these can be
assessed both quantitatively (number and proportion of members in the organisation) and,
above all, in terms of quality (the ability to act on the ground, to legitimise and then
ensure compliance with the provisions adopted).
Prior consultation of the parties directly affected is also key to demonstrating the value
and quality of the requirements, as well as their effectiveness.
Supervision, evaluation and follow-up of self-regulation and co-regulation mechanisms
should involve preventive measures or sanctions, in order to ensure their effectiveness.
This means:
1. Mechanisms for self-monitoring and internal disciplinary measures, including ex ante
impact assessments16
2. Databases to ensure more effective monitoring17
3. Adoption of a certification label or quality mark18
4. Conclusion of national codes implementing the EU code of conduct19
Here we should mention:

a self-monitoring mechanism established by the EFCA to ensure implementation of the 1992 Code of Conduct for
engineering firms and consultancies;

the binding provisions of a code of ethics for EU lawyers, adopted in 1988 by the European Bar Association;

a disciplinary committee established by a code of conduct for asset managers to ensure its implementation and, if
appropriate, decide on sanctions such as warnings, reprimands or proposals to disbar;

the European Advertising Standards Alliance (EASA), set up in 1992 to coordinate and promote self-regulation in the
advertising industry;

monitoring by the BDI (Bundesverband der Deutschen Industrie) of the proper implementation of the agreement concluded
in 1995 in Berlin between government and businesses on the conditions and monitoring of the reduction of CO2 emissions
in Germany, in accordance with the Kyoto Agreement.
One such database for engineering training establishments was set up in 1987 by the European Federation of National
Engineering Associations (FEANI), in application of a European code of ethics which ensures the mutual recognition of training
and qualifications; it has 30 000 members.
For example: the mark created by members of the European Insurance Committee to certify application of a European code of
good practice for the internet; and security marks for e-commerce, following on from the code of conduct on distance selling.
As occurred with the implementation of a European code of conduct adopted in 1995 and amended in 2004, by the Federation of
European Direct Selling Associations.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 12/16
i)
5. Establishment of technical specifications in parallel with standards20
6. Drawing up practical guides on implementation21
7. Provision of a system of financial (fines) or other penalties, such as loss of
accreditation or expulsion
Lastly, self-regulation and co-regulation mechanisms should be periodically reviewed and
adapted in the light of changing situations, legislation and the aspirations of their
signatories.
5.22
In order to strike the requisite balance between legal certainty and flexibility, the Commission
will also need to decide whether these structural elements of the mechanisms should be set
out in the IIA itself or in an appendix, which would have the same legal value but could be
easier to update, subject to a guarantee that all stakeholders would be consulted.
5.23
This general definition should still make it possible (as should be explicitly stated in the IIA)
for each legislative instrument that provides for the use of these mechanisms to lay down
specific conditions and requirements for the sector concerned, as is already the case in various
regulations and directives referring to them.
e) Main priority fields of application
5.24
The EESC does not consider, in principle, that whole sectors should be excluded.
5.25
However, it recognises that there are some sectors which, for cyclical reasons, have to be
treated more cautiously or made subject to more precise terms and conditions for the use of
self-regulation and co-regulation. This applies in particular to financial services, public
services and services of general interest, and certain areas which, although not directly
referring to fundamental rights, involve the way these rights are exercised, e.g. consumer
rights as mentioned in various EESC opinions.
5.26
The preferred areas mainly concern corporate governance and social responsibility and
economic relations.
5.27
The EESC thus welcomes recent Commission initiatives such as the CoP platform (Pilot
Community of Practice for better self- and co-regulation), based on the Commission
communication on corporate social responsibility22, or the support for the agreement among
20
21
22
For example, the quantified requirements to reduce the energy consumption of washing machines, agreed on in 1999 by the
European Committee of Domestic Equipment Manufacturers (CECED) in conjunction with the European Commission.
Examples are:

the training standards established, by means of a guide, pursuant to a code of professional rules for European
conservators/restorers;

the user's guide for internet service providers drawn up in 2001 by the Milan Chamber of Commerce to promote good
practice in this field.
COM(2011) 681 final.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 13/16
major web companies for a safer internet, as well as those resulting from the e-commerce
Directive23 and those indicated in various Community instruments.
f)
Pros and cons
5.28
Previous EESC opinions have pointed out the benefits of self-regulation and co-regulation
mechanisms. The main benefits noted in these are: removing obstacles to the single market,
simplifying laws, flexible and speedy application, freeing up legislative circuits, and shared
responsibility of participants.
5.29
However, they also have their limits, which depend primarily on effective monitoring and
sanctions and total compatibility with all existing legal rules, and on the need for an adequate
legislative framework in areas affecting health, safety and services of general interest, as
mentioned in these opinions24.
g) Alternative dispute resolution
5.30
After a long and difficult gestation, extra-judicial dispute settlement systems are now
regulated at Community level under the ODR Regulation and ADR Directive 25, pending
implementation in the various Member States.
5.31
Whilst theoretically not essential for the establishment of self-regulation and co-regulation
mechanisms, the EESC recommends that the future IIA should stipulate as a conformity
requirement that these mechanisms should always include provision for possible out-of-court
alternative dispute resolution in accordance with the abovementioned Community
instruments.
h) Role of the Community institutions, the Member States and civil society
5.32
All parties in the legislative process have specific responsibilities to assume for implementing
these instruments.
5.33
Firstly, the Commission must take the initiative to open negotiations with the European
Parliament and the Council on reviewing the current IIA along the lines set out here.
5.34
Civil society, and in particular the EESC, should be consulted on the terms of this negotiation,
and the final text of the agreement should be referred to the EESC prior to its official
adoption.
23
24
25
Directive 2000/31/EC (OJ L 178, 17.7.2000, p. 1).
Information report INT/204 of 24.1.2005 on the State of co-regulation and self-regulation in the Single Market, Rapporteur:
Bruno Vever.
Regulation (EU) 524/2013 and Directive 2013/11/EU in OJ L 165, 18.6.2013, p. 1 and p. 63.
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 14/16
5.35
Member States should also express their views, through their parliaments and using the
powers conferred by the Treaties for scrutiny of subsidiarity and proportionality, and national
governments should undertake to apply the same principles in their domestic legal systems.
5.36
Lastly, the Court of Justice and national courts must be given the requisite powers and means
for checking the legality of the measures adopted.
Brussels, 22 April 2015.
The President
of the
European Economic and Social Committee
Henri Malosse
N.B.:
Appendix overleaf.
*
*
*
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 15/16
APPENDIX
to the
OPINION
of the European Economic and Social Committee
The following point of the section opinion, which was replaced by an amendment adopted by the
Assembly, received at least one-quarter of the votes cast (Article 54(4) of the Rules of Procedure):
Point 5.21
Monitoring and follow-up of self-regulation and co-regulation mechanisms should involve
preventive measures or sanctions, in order to ensure their effectiveness. This means:
1. Mechanisms for self-monitoring and internal disciplinary measures, including ex ante
impact assessments
2. Databases to ensure more effective monitoring
3. Adoption of a certification label or quality mark
4. Conclusion of national codes implementing the EU code of conduct
5. Establishment of technical specifications in parallel with standards
6. Drawing up practical guides on implementation
7. Provision of a system of financial (fines) or other penalties, such as loss of accreditation
or expulsion
Voting result
For:
Against:
Abstentions:
91
41
28
_____________
INT/754 – EESC-2014-04850-00-01-AC-TRA (PT) 16/16