Harmonisation of legislation

Marten Oosting & Jan A.B. Janus

Jakarta 29-30 March 2010

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Introduction

• 1. One of the functions of the laws is to enable Government to realise its policy.

• 2. After the second world war there was an enormous increase of legislation to facilitate the building of the welfare state.

• 3. More recently, there is the growth of the international dimension of legislation

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Types of legislation

• International treaties and EU legislation

• The Constitution

• Acts of Parliament

• Delegated legislation:

- Orders in Council

- Ministerial Regulations

- Regulations of independent autonomous bodies

• Decentralised legislation:

- Provincial bye-laws

- Municipal bye-laws

- Water Board bye-laws

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Harmonisation of legislation

• What?

• Why?

• How?

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Harmonisation of legislation - What?

Harmonisation of legislation: the legal-technical effort bringing the individual pieces of legislation into line with each other with the aim to prevent or reduce - unnecessary -differences in structure and system, concepts, design, wording, degree of decentralisation, methods of sanctioning, legal protection and public participation possibilities.

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Harmonisation of legislation - Why?

• 1. to prevent intrinsic inconsistencies in the legislative framework;

• 2. to enhance the simplicity of the law;

• 3. to enhance the legal certainty;

• 4. to improve efficient law making

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Harmonisation of legislation - How?

• Legal Codes, General Acts of Parliament and Integrated Acts of Parliament

• Directives and model provisions

• Legislative process and organisational measures

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The Legal Codes

• Civil Code

• Commercial Code

• Code of Civil Procedure

• Criminal Code

• Military Criminal Code

• Code of Criminal Procedure

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General Acts of Parliament

General Acts of Parliament:

Acts that lay down general rules governing a particular area of law

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General Acts of Parliament (1)- substantive law -

• General Administrative Law Act

• Acts of Parliament Act (publication/entry into force)

• Economic Offences Act

• Government Information (Public Access) Act

• General Act on Entry into Private Property

• Data Protection Act

• General Act on Equal Treatment

• Environmental Management Act

• State Taxes Act

• Customs and Excise Act

• General Extension of Time-Limits-Act

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General Acts of Parliament (2)- organisational law -

• Judiciary (Organisation) Act

• Municipalities Act

• Provinces Act

• Water Boards Act

• Industrial Regulatory Bodies Act

• Advisory Bodies Framework Act

• Independent Administrative Bodies Framework Act

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Integrated Acts of Parliament

Sometimes, various Acts of Parliament governing a specific area are integrated into one single Act of Parliament, f.e.:

- The Water Act

- The Act on Financial Supervision

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General Administrative Law Act (1)

The Act consists of a contentious and a non-contentious part.

The first half of the Act comprises provisions governing the primary administrative decision making process, the second half governs objections to an administrative decision, appeal to a superior administrative body and judicial review in the administrative court.

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General Administrative Law Act (2)

The objectives:• to enhance the uniformity of the administra-tive

legislation;• to systemise and simplify the administrative

legislation;• to codify the developments of the administra-

tive jurisprudence;• to lay down rules on matters that from their

nature cannot be regulated in special laws.

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General Administrative Law Act (3)

The General Administrative Law Act has been adopted in four phases.The 1st and 2nd phases entered into force on 1 January 1994.The 3rd phase entered into force on 1 January 1998.The 4th phase entered into force on 1 July 2009.The 5th phase: Will there be a 5th phase?

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Adaptation of the special administrative laws

The realisation of the various phases of the General Administrative Law Act was coupled with extensive amending legislation.

By means of this amending legislation all Acts of Parliament were adapted to the new General Administrative Law Act.

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The Directives on Legislation

They contain a great number of instructions (at present: 347) regarding general topics relating to regulations, general aspects of design as well as regarding special components of rules and regulations, amendments and withdrawal of regulations, procedures, treaties, and the preparation and implementation of EU secondary legislation.

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The legislative process

“Harmonising moments” during the legislative process?

• Preparation

• Council of Ministers

• Council of State

• Second Chamber

• First Chamber

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Organisational measures

• The appointment of the Minister of Justice as coordinating minister for the harmonisation of legislation.

• The establishment of the Interdepartmental Commission for Harmonisation of Legislation.

• The establishment of a new staff department within the Ministry of Justice, the Harmonisa-tion of Legislation Department.

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Further developments (1)

• Deregulation process• Commission for Assessment of Legislative

Projects• Expansion into general legislative policy• Policy Paper “Legislation in perspective” and

the development of quality criteria for legislation

• Cabinet Programme on Competition, Deregulation and Legislative Quality

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Further developments (2)

• The Minister of Justice and the Legislation Directorate of his Ministry

• The Council of Ministers

• The Council of State

• The First Chamber

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