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Luzius Mader, Marta Tavares de Almeida (Ed.)

Quality of Legislation - Principles and Instruments, page 2 - 12

Proceedings of the Ninth Congress of the International Association of Legislation (IAL) in Lisbon, J

1. Edition 2011, ISBN print: 978-3-8329-5245-7, ISBN online: 978-3-8452-3179-2,

Series: International Association of Legislation (IAL) / Deutsche Gesellschaft für Gesetzgebung (DGG), vol. 16

Bibliographic information
International Association of Legislation (IAL) Band 16 Luzius Mader/Marta Tavares de Almeida (eds.) Quality of Legislation Principles and Instruments Proceedings of the Ninth Congress of the International Association of Legislation (IAL) in Lisbon, June 24th-25th, 2010 Nomos 1. Auflage 2011 © Nomos Verlagsgesellschaft, Baden-Baden 2011. Printed in Germany. Alle Rechte, auch die des Nachdrucks von Auszügen, der fotomechanischen Wiedergabe und der Übersetzung, vorbehalten. Gedruckt auf alterungsbeständigem Papier. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machine or similar means, and storage in data banks. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to »Verwertungsgesellschaft Wort«, Munich. Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at ISBN 978-3-8329-5245-7 This publication was made possible by a grant of the Centre for Research and Development on Law and Society, School of Law, New University of Lisbon and the Portuguese Agency for Research 5Preface With this publication we present the proceedings of the 9th Congress of the International Association of Legislation (IAL), which took place in Lisbon on 24th and 25th June 2010, organized by the School of Law, New University of Lisbon. IAL is a non-profit association, founded in Germany in 1991 and then named European Association of Legislation. The name of the Association was changed in 2008 due to the significant amount of new members from non European countries and to various activities of the Association at the international level. The main goal of IAL is to promote the quality of legislation and to establish the cooperation between different countries in the area of lawmaking. The 9th Congress of IAL promoted an open debate on the principles and instruments required to develop the Quality of Legislation, a very complex notion, which was considered and analysed through various perspectives during the Congress. The first session opened with the political, juridical, economic, institutional and social conditionals of lawmaking in the context of EU policies and of world globalisation. The following were some of the questions which arose: Quality of Legislation is it possible or is it an utopian pursuit? How is legislative policy at the European level addressed? Which are the great challenges of the legislator in a global world? These are some of the fields of research which the Theory of Legislation can not ignore. It is fair to say, as Professor Hespanha explained, that «legistic is a purpose, yet of prime relevance, however subdued to prior theoretical issues». The subsequent sessions focused on the necessity to develop a pragmatic approach in relation to policies and instruments, which allows for the introduction of rationality in the lawmaking process. Various aspects contributing to a rational regulatory methodology were considered. The main issue of the second session was the debate of the different aspects of the legislative procedure - not from a constitutional or legal point of view which belongs mainly to constitutional and parliamentary law - including: the legislative planning; the legislative methodology; the best practices on consultation; the enforcement of law. 6Impact Assessment (IA) was discussed in the third session. The spread, over the last decade, of IA in OECD countries and EU members states is a vital issue in legislative methodology. Some crucial questions were raised: How can IA contribute towards a better quality of norms? What are the main limits of IA? Are the different European countries learning from the various experiences of IA? What should the role of jurists and social scientists be in an IA process? The fourth and last session dealt entirely with the accessibility to legislation – a decisive goal in a democratic State, a corollary of the Rule of Law. Nowadays, with the development of so many new technologies, we have a large range of possibilities to handle the diffusion of legislation, to reach the addressees of law. Within this framework, the last session presentations, on different aspects of legislative communication, generated a lively debate. The 9th IAL Congress was planed to allow the possibility of a large number of contributions to be presented. In fact, besides the invitations addressed to well known experts in this area, a call for Papers and Posters was made. This produced a high volume of interest and led to very interesting contributions from young academics and researchers from renowned universities and research centres. We would like to underline the creative work given to Posters, which is not yet the norm in scientific meetings in this field. The Posters, whose abstracts are inserted in this publication, proved to be a valuable way to point out various seminal aspects of lawmaking. We hope that this publication will be a vehicle of consequence for a wider dissemination, at international level, of the Congress presentations and a contribution to the enlargement of the debate on the main issues concerning the Quality of Legislation. May we express our deep gratitude to the sponsors of the 9th IAL Congress: the Portuguese Parliament; the Presidency of the Council of Ministers; the Luso American Foundation; the Portuguese Agency for Research; the Centre for Research, School of Law, New University of Lisbon. We must also thank the generous support of the Centre for Research, School of Law, New University of Lisbon and the Portuguese Agency for Research 7for this publication. Without their contributions it would have been impossible to publish the proceedings of our Congress. Luzius Mader Chairman of the International Association of Legislation Marta Tavares de Almeida Vice-Chairwoman of the International Association of Legislation Congress Local Organizer 9Contents Opening Address 13 Teresa Pizarro Beleza Dean, School of Law , New University of Lisbon 17 Session I – Quality of Legislation António Manuel Hespanha Portugal Beyond and beneath of »bettering legislative technique« 17 Jorge Miranda Portugal Law, Rule of Law and quality of Law 22 Wim Voermans Netherlands Quality of EU Legislation under Scrutiny : what kind of Problem, by what kind of Standards? 31 Teresa Pizarro Beleza Portugal Legislating Security, Outlawing Fear: Portuguese Criminal Law 67 Virgilio Zapatero Spain The Art of Legislating and Globalisation 70 Helen Xanthaki United Kingdom Quality of Legislation: an achievable universal concept or an utopia pursuit? 75 10 Elena Griglio and Cristina Fasone Italy The »Time-Factor« within the Lawmaking Process: a limit to Legislation Quality Improvement? 86 David Keyaerts Belgium Interaction between ex ante evaluation and judicial review by EU courts 109 Session II – Legislative Procedure and the Quality of Legislation Vitalino Canas Portugal The role of National Parliaments in the light of the Treaty of Lisbon and its consequences for the national legislative process 121 Susana Brito and Diana Ettner Portugal SIMPLEGIS Fewer laws, more access, improved enforcement 129 Patricia Popelier Belgium Consultation on Draft Regulation – Best Practices and Political Objections 136 Paulo Câmara and Gretchen Lowery Portugal The Internal Governance Structure of Financial Regulatory Authorities: Main models and current trends 148 Alexandre Sousa Pinheiro and Teresa Amador Portugal LEGIS -PALOP Project: A step towards Lusophone Citizenship Global presentation of LEGIS-PALOP 184 11 Session III – Regulatory Impact Assessment João Caupers Portugal The limited rationality of the legislative decision 193 Nuno Garoupa Portugal Regulatory Impact Assessment – Economic and Political dimensions 200 Pierre Issalys Canada Impact Assessment as a Means towards Higher Quality of Legal Norms: beware of Blind Spots 208 Rob van Gestel and Marie-Claire Menting Netherlands The impact of ex ante evaluation of legislation: going Dutch? 218 Fabrizio De Francesco Switzerland Diffusion of Regulatory Impact Assessment and Standard Cost Model: a comparative analysis 238 Session IV- Accessibility to Legislation Fabiana de Menezes Soares Brasil Decodification and Legis-action 253 William Robinson United Kingdom Making EU Legislation more accessible 263 Timea Drinóczi Hungary Communication in Legislation – using ICT 277 12 Giuseppe Cammarota and Giovanni Piccirilli Italy Political Communication and Effectiveness of Legislation. Challenges to the certainty of law beyond the law in the books 288 Vihar Kiskinov Bulgary Legal Action in the Virtual Realm: New Legislative Methodology and Techniques 297 Constantin Stefanou United Kingdom Drafting as a form of Communication 308 Closing Session Congress Conclusions Luzius Mader Chairman of the International Association of Legislation 323 Posters 331 List of Authors 351

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This publication presents the proceedings of the 9th Congress of the International Association of Legislation (IAL), which took place in Lisbon on 24/25 June 2010, organized by the School of Law, New University of Lisbon. The IAL develops the study of theoretical and practical approaches to legislation and promotes the cooperation between different countries in the area of lawmaking.

The general topic of the Congress was the quality of legislation. The published papers debate the following issues: the essential content of quality of legislation; how legislative procedure can contribute to favour quality; which is the role of regulatory impact assessment; how can an optimal accessibility to legislation be realised. This publication also includes the abstracts of all posters presented during the Congress.

Furthermore, 25 papers of some of the most renowned experts on legislative studies, which will certainly give a valuable contribution to the enlargement of the debate on legisprudence, or more broadly to all efforts to improve legislative quality, are included.

So far, Nomos has published all previous IAL Congresses’ proceedings, which allows an interesting approach of the developments, at EU level and at different countries, on the regulatory policy.