PART 4. SOURCES OF EUROPEAN UNION LAW

Transcription

1 Part 4. Sources 1 PART 4. SOURCES OF EUROPEAN UNION LAW rd Literature: Takis Tridimas, General Principles of EU Law, 3 ed. Oxford Primary and Secondary Union Law A. Primary Union Law Primary Union law refers to the founding treaties, i.e. the body of law made by the Member States themselves. By contrast, secondary Union law is the body of law made by the institutions of the European Union on the basis of powers given to them in the treaties. The following are the most important elements of primary Union law: the founding treaties, namely the Treaty Establishing the European Coal and Steel Community ECSC, also known as the Paris Treaty (1951) (this Treaty expired, as planned, in 2002; remaining activities were integrated into the EU), the Treaty Establishing the European Economic Community EEC, also known as the Rome Treaty (1957), the Treaty Establishing the European Atomic Energy Community Euratom (1957) the protocols attached to the founding treaties, including e.g. the Statute of the European Court of Justice; subsequent treaties amending the founding treaties, in particular the Merger Treaty (1965), the Single European Act SEA (1986), the Treaty on European Union or Maastricht Treaty (1992), the protocols attached to the Maastricht Treaty, including e.g. the Statute of the European Central Bank; the Treaty of Amsterdam (1997), the Treaty of Nice (2001), the protocols attached to the Amsterdam and Nice treaties, the Treaty of Lisbon (2009), and the various accession treaties. B. Secondary Union Law I. General Aspects of Secondary Union Law 1. Forms of secondary Union law The term secondary Community or Union law refers to legislative acts and binding administrative decisions which were adopted by one or more of the institutions of the EU and which are based on powers conferred upon the EU and its institutions by the Member States via primary EU law. According to Article 288 TFEU, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. Regulations, directives, and decisions are all binding measures and are all published in the Official Journal s part L (for legislation ). The following elements are always included in the header or title of such measures:

2 Part 4. Sources 2 a distinctive document number consisting of the year in which the measure was adopted and a consecutive number of measures adopted that year, as well as an indication of the treaty basis, e.g. Regulation (EC) No 2980/94, or Directive 2000/47/EC, or Decision 94/285/Euratom; an indication of the adopting institution, e.g. the European Parliament and the Council, the Council, or the Commission (binding decisions at least with regard to the organization of their work can also be adopted by the European Parliament alone, the European Central Bank, and, to a lesser extent, the Committee of the Regions and the 1 Economic and Social Committee ); the date when the measure was adopted; a brief indication of the subject matter. Example Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty Occasionally, a dispute may arise about the classification of a measure, i.e. whether it was correctly classified as a regulation, directive, or decision. If a measure should be classified incorrectly, this may raise questions with regard to the respective institution s competence to act (in this way), as well as the choice of legislative procedure (compare, for example, the provisions of Articles 114 and 115 TFEU). When in doubt, the real nature of a binding measure must be established on the basis of its content and effects, rather than on the basis of its name, i.e. who are the addressees and to what extent is it binding and applicable in the Member States? The Court of Justice clearly stated, that In examining [the question whether a regulation is in reality a decision], the Court cannot restrict itself to considering the official title of the measure, but must first take into 2 account its object and content. Hence, a measure is a regulation, if it is generally applicable to an indeterminate multitude of cases or addressees (by contrast to a decision) and if it is binding in its entirety and directly applicable in the Member States without a need of further intervention by the national legislatures or authorities (by contrast to a directive). 2. The principle of enumerated powers and the legal bases for legislative and administrative measures The European Union is an international organization created by sovereign states. It does not have any powers of its own, other than those transferred to it by these states in primary EU law. Therefore, any activity of the EU and its institutions, in particular, any activity with binding effects for anyone outside of the institutions themselves, must be based on a power specifically transferred to the EU in one of the treaties. By default, all powers rest with the Member States. Where there is no power transfer, there shall be no EU action. 3 This so-called principle of enumerated powers is expressed in Article 5(2) TEU, which requires that the Union shall act only within the limits of the competences conferred upon it 1 For example 2003/603/EC: Decision of the European Economic and Social Committee of 1 July 2003 on public access to European Economic and Social Committee documents. 2 See the judgment of 14 December 1962 in Joined Cases 16 and 17/62, Fruits et Légumes, 1962 ECR 471, at p. 478; compare also the original wording of Article 263(4) ECT. 3 See Article 4(1) TEU.

3 Part 4. Sources 3 by the Member States in the Treaties... Competences not conferred upon the Union in the Treaties remain with the Member States. Furthermore, Article 13(2) TEU requires that [e]ach institution shall act within the limits of the powers conferred on it in the Treaties.... The Member States have limited the transfer of powers to the EU otherwise they would have lost their sovereignty and would have created a new (federal) state. Furthermore, the Member States can at any time, via a treaty change, expand or reverse the transfer of powers to the EU. This is why the Member States are still the Masters of the Treaties. The transfer of powers to the EU institutions to adopt binding legislative or administrative acts in certain areas is done via legal bases in the treaties. Rather than providing a list of legal bases or having a chapter with all the legal bases in the treaties, the Member States originally drafted the treaties in such a way that the legal bases were dispersed throughout the treaties, and included in the chapters dealing with certain topics or activities. For example, the legal basis for the adoption of regulations, directives, or decisions related to agriculture, could be found in the chapter on agriculture (see Art. 43 TFEU); the legal basis for the adoption of measures related to the environment could be found in the chapter on the environment (see Art. 192 TFEU), and so on. In response to Member State complaints about unclear division of powers and, as a consequence, creeping appropriation of powers by the EU, an actual list of powers of the EU was added to the TEU by the Lisbon Treaty effective 1 December This Title I Categories and Areas of Union Competence first outlines the general principle in Article 2 TEU and then deals with areas of exclusive Union competence in Article 3, shared or concurring Union competence in Article 4, and areas where the Union is not empowered to adopt binding acts but merely to coordinate or support Member State action in Articles 5 and 6 TEU. What must be remembered, however, is that the new provisions merely outline the areas of Union competences but do not as such provide legal bases for legislative or administrative action by the Union. In order to act with binding effect, the Union still has to have a legal bases for the adoption of a specific measure and those remain dispersed over the treaties in the respective chapters, as before. In the various chapters, not all legal bases follow the same pattern and occasionally it may be difficult to determine whether a certain provision in the treaties does or does not provide a legal basis for the adoption of legislative or administrative measures. The following elements have to be included in a provision to make it a legal basis: it must confer the power to the EU, respectively its institutions, to adopt binding legislative or administrative measures; it must determine which institutions are empowered to act; it must determine how several institutions have to collaborate to make use of the power and which procedure is to be followed for the decision-making within the institutions. Some of these determinations can be achieved by reference to procedural provisions, in particular such as Article 294 TFEU, which regulates the so-called ordinary legislative procedure 4 (see, for example, the reference included in Art. 53(1) TFEU). While most legal bases are quite specific following the notion of a limited transfer of power from the Member States to the EU two of them are more open ended. From the very beginning, the European Economic Community Treaty contained what could be called an opening clause for unforseen cases. Article 352 TFEU provides a power to the Council to adopt the appropriate measures if such action should prove necessary, even though the 4 Formerly known as the co-decision procedure for the adoption of legislation by the Council together with the European Parliament.

4 Part 4. Sources 4 Treaties have not provided the necessary powers. This provision acknowledges the problem that it is impossible for the drafters of a treaty to foresee every need that may arise over the years and that it is frequently too cumbersome and too slow to change the treaty every time a need has to be addressed that has not been foreseen and is not provided for in the treaty (yet). The Member States did include a safeguard to prevent an uncontrolled expansion of the powers of the EU under a real or alleged need by requiring unanimity in the Council for the use of the powers under Article 352 TFEU. In the early 1980s, after the accession of Greece and the growth of the EC to ten Member States, frequent difficulties arose in achieving unanimity in the Council for the adoption of various legislative measures, as it was then still required in most legal bases. The period actually became known as the time of Euro-sclerosis (see above, p.???). As a reaction to this period of grid-lock and in order to enable the EC to implement the ambitious program for the completion of the Internal Market by the end of 1992, the Single European Act introduced (qualified) majority voting in the Council by amending a number of legal bases. Furthermore, a completely new legal basis was introduced specifically for the internal market program in the form of Article 114 TFEU. While not as wide as Article 352, this provision is also fairly general and open-ended, permitting the adoption of any measures that are deemed necessary for the achievement of the Internal Market, i.e. an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured... (see Art. 26 TFEU). In many respects, this provision can also be considered to be an opening clause, expanding the powers of the EU significantly and to some extent in unpredictable ways. What turned out to be even more troublesome for the national parliaments and to some extent the Member State governments as a whole was the fact that Article 114 provides for decision-making in the Council by qualified majority, rather than unanimity, as required by Article 352 TFEU. Both Article 352 and Article 114 have been used to expand the powers of the EU. By and large, this was done by consensus, i.e. with the support of the central government of all Member States. The unanimity requirement in Article 352, however, protects mainly the benefit of the Member State executives, which are represented in the Council. It does not necessarily safeguard the powers of the national parliaments, which could be by-passed via adoption of legislation on the level of the EU rather than the Member States, as long as all Member States s executives agree in the Council. This can be a problem in a Member State where the government does not actually have a parliamentary majority, i.e. the executive may prefer to do certain things at the European level because they may not be acceptable to a parliamentary majority at home. Moreover, in federal states, such as Austria, Belgium, Germany or Spain, a power may belong to the regions under national constitutional law. Nevertheless, the EU might adopt a measure based on Article 352 with the support of the central government, effectively infringing upon the power of the region(s). Protecting the decentralized power structure on the national level is a matter to be addressed in national law. The EU system does not address this issue and instead leaves it to the national central government, which alone is normally represented in the Council. The only concession was a change made to Article 203 ECT in 1993 with the entry into force of the Maastricht Treaty, that the representative of each Member State does not have to be a member of the central government s cabinet, as long as he or she is at ministerial level and authorized to commit the government of the Member State in question (as of 2009, this has become Article 16(2) TEU). Occasionally, therefore, a federal state like Germany may be represented in the Council by a minister from one of the several states. In light of the fact that legislative measures adopted under Article 352 or under Article 114 are not always predictable from a national perspective, it is fascinating that only the Danish

5 Part 4. Sources 5 parliament, the Folketing, has introduced effective mechanisms for supervising the voting of its ministers in the Council The principle of subsidiarity The adoption of the Single European Act in 1985 and the introduction of qualified majority voting for many important measures required for the completion of the internal market by 31 December 1992 effectively overcame the prior grid-lock in the Council. As explained earlier, 6 the 1985 White Paper on Completing the Internal Market kicked off a period of intense legislative activity. The bulk of the new European laws were adopted in the form of directives. On the one hand, by leaving certain choices to the Member States, directives tread lighter on national sovereignty than regulations. On the other hand, they require transformation by the national parliaments and, therefore, are much more visible. This visibility, combined with the fact that the more contentious measures for the completion of the internal market were largely adopted towards the end of the period, i.e. in pretty concentrated form in 1991 and 1992, built up considerable resistance at the national level against the EU in general, and its creeping expansion of powers in particular. The national parliaments having to implement the EU directives also complained quite frequently that they were really not given much discretion at all but often had to rubber-stamp highly detailed EU laws into national law. These concerns were taken up in the negotiations that led to the Maastricht Treaty and found their way into the Treaty, specifically into Article 5(3) TEU, in the form of the subsidiarity principle. As can be seen from its wording, the clause is complicated, if not cryptic, which usually indicates that a difficult compromise was negotiated:... in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. In a nutshell, the subsidiarity principle limits legislative activity of the EU to areas where the Union can achieve an added value over the individual Member States. This was intended to curb (further) mission creep and in effect facilitated the adoption of the Maastricht Treaty. 7 A further step was taken with the Lisbon Treaty which not only introduced the formal definitions of exclusive and concurring Union powers mentioned above but also, for the first time ever, provides for a formal procedure for the withdrawal of a Member State (see Article 50 TEU). 5 For more information on the European Affairs Committee of the Folketing and the way it can specify or limit the mandate of the Danish minister prior to EU Council meetings see???. 6 See above, p.???. 7 See Cass, The Word that Saves Maastricht? The Principle of Subsidiarity and the Division of Powers Within the European Community, CMLRev 1992, p

6 Part 4. Sources 6 4. The duty "to state the reasons" under Article 296 TFEU According to Article 296(2) TFEU, all binding legislative and administrative measures adopted by the institutions shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties. Consequently, all regulations, directives and decisions begin by stating the institutions that adopted them and then provide under Having regard to... information about their legal basis, as well as any proposals or opinions that had to be produced or obtained during the drafting stages. The latter come with references to their publication in the Official Journal and can be tracked by everyone. Subsequently, the legislative and administrative acts contain more or less extensive information about the reasons for their adoption in their preamble. In particular when adopting novel or controversial legislation, the institutions usually provide detailed explanations about their legislative goals and the mechanisms to be applied in their pursuit. In light of the subsidiarity principle in Article 5(3) TEU, a preamble will also seek to explain why legislation was adopted at the EU level rather than at the level of the Member States, at least if the measure falls within the area of concurring competences. The duty to state the reasons for a binding legislative or administrative measure fulfills three functions: information for the addressees; facilitation of control of legality and interpretation before the European Court of Justice; self-control by the institution adopting the measure. If a binding legislative or administrative measure does not contain the required statement of reasons, it can be declared null and void by the European Court under Article 263 ECT for infringement of an essential procedural requirement. 5. Publication and entry into force Article 297 TFEU requires that the following legislative and administrative acts are published in part L for legislation of the Official Journal: all legislative acts those non-legislative, i.e. administrative acts that are adopted in the form of regulations or directives addressed to all Member States; decisions which do not specify to whom they are addressed. In particular, those directive or decisions that are addressed only to a limited number of specified natural or legal persons do not have to be published in full in the Official Journal and are instead notified directly to the addressees. However, even in these cases, a short notice is usually published in part C for communications of the Official Journal. Unless otherwise specified at the end of a legislative or administrative measure, the th measure enters into force on the 20 day following its publication in the Official Journal. 6. The principle of transparency and access of the public to information about the work of the institutions Pursuant to Article 15(3) TFEU, any natural or legal person residing or having its registered office in a Member State has far reaching rights of access to documents available to the Parliament, Council and Commission. This principle was concretized by Regulation 1049/2001

7 Part 4. Sources 7 8 Regarding Public Access to European Parliament, Council and Commission Documents. With respect to its own documents, the Commission has further elaborated a 15-page Citizen s Guide 9 Access to European Commission Documents. The Citizen s Guide also contains an application form for a document held by the Commission. The EU institutions did not always emphasize transparency in this extensive way. Prior to 1995, much of the work of the Council, in particular, happened behind closed doors. Thus, it was largely impossible for citizens and other interested parties to know the position a Member State government had taken, for example when a vote was taken in the Council on the adoption of a particular piece of legislation. To some extent, the ministers even abused this cloak of secrecy and claimed in front of their constituents at home that they had voted against or at least not supported a particular and unpopular EU measure when in reality they had voted in favor of it or at least allowed it to pass by consensus. The rule that Council documents were confidential unless explicitly released to the public was turned on its head, however, when the British Guardian Newspaper sued the Council for much greater access to its documents. The Court of First Instance, in a landmark judgment of 19 October 1995, ruled that open access had to be the default principle and that the Council had to justify in each and every case why a particular document should be withheld from the public. 10 II. Regulations, Directives and Decisions 1. Regulations Pursuant to Article 288(2) TFEU, every regulation shall have general application and shall be binding in its entirety and directly applicable in all Member States (emphasis added). Therefore, regulations have an effect in the Member States that is comparable to their own national parliamentary legislation. The reason why they are called regulations rather than laws is historic, namely the fact that the main legislative organ of the Communities used to be the Council, which is in turn composed of members of the national executives, while the European Parliament had mainly advisory functions until All national authorities, including the parliaments, have to respect EU regulations and, in particular the administrative authorities and the courts, have to apply them of their own motion. Furthermore, natural and legal persons in the Member States can directly be endowed with rights and/or obligations by EU regulations which national authorities must respect and national courts must enforce. Direct applicability, therefore, refers to the fact that EU regulations are not only binding on the Member States as it would be the case with ordinary international agreements and conventions but they are binding in the Member States for an indeterminate multitude of cases and parties. Furthermore, this effect comes about purely on the basis of the EU regulations themselves and their publication in the Official Journal (see Art. 297 TFEU) and does not require any kind of transformation by the national parliaments or governments or any other national intervention. Transforming EU regulations into national legislation is not only unnecessary but inadmissible. For a while the Italian parliament adopted national laws that verbatim restated EU regulations in an effort to improve compliance by national authorities. This practice was 8 OJ 2001 L 145/43; see also Emmert, European Union Law - Documents, p Available at 10 See Case T-194/94, John Carvel and Guardian Newspaper Ltd v Council of the European Union, Judgment of 19 October 1995, ECR II-2767.

8 Part 4. Sources 8 explicitly prohibited by the European Court of Justice in its Judgment of 10 October 1973 in Case 34/73, Variola (1973 ECR 981). Although EU regulations might be made more widely accessible in this way, national transformation would create a number of problems: the addressees would no longer recognize that their rights or obligations are derived from EU law and thus applicable throughout all Member States; these rights and obligations would no longer benefit from the general supremacy of all EU law over all national law, including the national constitutions; this could be a problem, in particular, if the national transformation should be late, incomplete, or incorrect; we shall return to this problem in the context of directives; the authority of the European Court of Justice to be the final arbiter and interpreter of EU law would be undermined. 2. Directives According to Article 288(3) TFEU, directives are binding upon each Member State... as to the result to be achieved, but they leave to the national authorities the choice of form and methods (emphasis added). In the context of national law, the nearest equivalent to directives would be framework legislation. EU directives are addressed to the Member States, i.e. the national parliaments or executives. As such, they are not binding for the national courts or administrative authorities, let alone ordinary natural or legal persons in the Member States. Directives are primarily intended as tools for the harmonization of laws of the different Member States. The EU establishes certain goals or minimum standards but leaves it to the national authorities to determine the substantive details, as well as the most suitable means to achieve those goals. In this way, a sufficient degree of legal harmonization can be brought about while at the same time national sovereignty and the manifold differences in the administrative, social and other structures of the 25 Member States are respected. Example: Dir 2005/36 on the Recognition of Professional Qualifications, Documents, p. 698 Depending on the subject matter of a directive, it may be necessary to provide rather detailed rules on the EU level in order to achieve true harmonization on the national level. There have been cases, therefore, where EU directives were criticized because they do not leave the Member States any real choices and instead force the national parliaments almost to rubberstamp a pre-determined text. Such criticism is understandable but misplaced. Upon careful analysis, Article 288 requires only that the choice of form and methods be left to the Member States, for example whether the specified goals will be achieved by federal or by regional legislation, which authorities will be responsible for the implementation or supervision, and which procedures should be followed. There is no requirement that the Member States must always have some latitude as far as the substance of the legislation is concerned. Consequently, the European Court has never struck down a directive as invalid because of too detailed provisions. Quite to the contrary, in Case 38/77, Enka, the Court agreed that a particular provision had to be given an identical application in all the Member States in order to prevent distortions of trade, and, therefore, had no objection that the directive in question left the national authorities no area of discretion, with the result that the terms of the directive must

9 Part 4. Sources 9 prevail over any provisions of national law which may be incompatible with it in each Member State. 11 What must not be overlooked in this context is the fact that many directives may prescribe rather detailed and precise results to be achieved by the Member States in some of their articles. However, it will rarely, if ever, happen that an entire directive is so detailed and specific that the Member States are left with no choices of any sort. Whenever a directive intends to create rights and obligations for natural and legal persons in the Member States via the transposition into national legislation, the European Court has limited the choice of form and methods by requiring transposition via binding and published legislation. De facto observation of the European rules by the national administration and even written but internal administrative rules do not meet this requirement because: they may not be (formally) published and, therefore, not readily accessible to those concerned; they may be changed at the discretion of the national authorities and without prior (public) announcement; and may not be enforceable in court or this may at least be uncertain. This general principle has been elaborated by the Court in its judgment of 30 May 1991 in Case 12 C-361/88, Commission v Germany (Air pollution). Concretely, the Court held as follows: [15]... according to the case-law of the Court [...], the transposition of directives into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts. [...] One of the final provisions of each directive stipulates the deadline by which the national authorities have to achieve the prescribed transposition. This may be stipulated as a certain date (e.g. by 31 December 2013"), or as a time frame (e.g. within six months or within two years ). Should a Member State fail to enact the necessary national measures by the given deadline, the Commission can and usually will initiate proceedings pursuant to Article 258 TFEU (see below, p.???). The fact that a directive may intend to create rights (and obligations) for individuals, and may do so with rather detailed and unambiguous language and a clear deadline, raises the question whether those individuals can rely directly on the provisions of the directive after expiry of the deadline if a Member State did not transpose the directive correctly. Such a remedy would seem to have an independent scope of application, in particular while a breach by a Member State has either not yet been brought to the attention of the Commission or during the lengthy proceedings of the Commission against the Member State pursuant to Article 258 TFEU. Since direct effects of directives are clearly not foreseen by Article 288 TFEU, while at the same time the problem of non-implementation, late implementation, or wrong 11 Judgment of 23 November 1977, 1977 ECR 2203, in particular paras. 16 and 17 of the judgment ECR I-2567; for more detailed analysis of this judgment see Emmert, Cases, p. 47.

10 Part 4. Sources 10 implementation by one or more Member States is quite frequent, the question has great significance in practice. To enhance the effectiveness of EU legislation via directives and alleviate the frustration of individuals, the European Court has developed a sophisticated and differentiated case-law for different types of directives and different types of Member State breaches. This will be discussed below, in the context of supremacy and direct effect of EU law Decisions As stipulated in Article 288(4), a decision shall be binding in its entirety but it may specify those to whom it is addressed (emphasis added). By contrast to regulations and directives, decisions are usually not intended as abstract and general legislation for an indefinite multitude of cases. Rather, decisions are meant to be concrete and specific acts for individual cases. They resemble administrative acts on the national level. In some ways, decisions are comparable to regulations in their effects in domestic law. Like regulations, they enjoy direct applicability in the Member States, i.e. they are capable of creating rights and obligations directly for the addressees, without requiring any kind of transformation by the national parliaments or executive authorities. These rights and obligations have to be respected and enforced by the national authorities, including the national courts. The distinction between regulations and decisions has to be made on the basis of the determinacy of those concerned. If a rule is intended for an indeterminate group, it should be issued as a regulation (e.g. all undertakings of a certain size wishing to merge their economic activities have to notify the Commission prior to the merger and obtain permission); by contrast, if a rule is intended for a determinate or closed group, it should be issued as a decision (e.g. all participants of a cartel are ordered to discontinue their illicit collaboration). In certain cases, decisions are not only notified to the addressees but also published in the Official Journal (see Article 297(2) TFEU and, for example, Article 30 of Regulation 1/2003 on the Implementation 14 of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty ). Article 299 TFEU provides that decisions which impose a pecuniary penalty on natural or legal persons in the Member States are enforceable as such, i.e. the national authorities have to collect the penalty on behalf of the EU directly on the basis of the EU s decision. There is no need for a national court order or any other kind of writ of execution. Only the European Court of Justice, upon application by the persons concerned, has the power to suspend the enforcement of an EU decision. 15 III. Amendments, Repeals and Corrections IV. Internal Rules of Procedure of the Institutions V. Other Forms of Measures by the Community and Measures Jointly Taken by the Member States 13 See pp.???. 14 See Emmert, Documents, p , at p See Articles 263(4) and 278 TFEU.

11 Part 4. Sources 11 C. General Principles of European Union Law D. Judge-Made Union Law E. Quantity and Quality of European Union Law 13. The Budget of the Union and the Budgetary Procedure [maybe this chapter should be moved elsewhere!!???]