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Palgrave Studies in European Union Politics Edited by: Michelle Egan, American University, USA; Neill Nugent, Manchester Metropolitan University, UK and William Paterson OBE, University of Aston, UK. Editorial Board: Christopher Hill, University of Cambridge, UK; Simon Hix, London School of Economics, UK; Mark Pollack, Temple University, USA; Kalypso Nicolaïdis, University of Oxford, UK; Morten Egeberg, University of Oslo, Norway; Amy Verdun, University of Victoria, Canada; Claudio M. Radaelli, University of Exeter, UK and Frank Schimmelfennig, Swiss Federal Institute of Technology, Switzerland. Following on from the sustained success of the acclaimed European Union Series, which essentially publishes research-based textbooks, Palgrave Studies in European Union Politics publishes cutting-edge, research-driven monographs. The remit of the series is broadly defined, both in terms of subject and academic discipline. All topics of significance concerning the nature and operation of the EU potentially fall within the scope of the series. The series is multidisciplinary to reflect the growing importance of the EU as a political, economic and social phenomenon. Titles include: Ian Bache and Andrew Jordan (editors) THE EUROPEANIZATION OF BRITISH POLITICS Thierry Balzacq (editor) THE EXTERNAL DIMENSION OF EU JUSTICE AND HOME AFFAIRS Governance, Neighbours, Security Jens Blom-Hansen THE EU COMITOLOGY SYSTEM IN THEORY AND PRACTICE Keeping an Eye on the Commission? Falk Daviter POLICY FRAMING IN THE EUROPEAN UNION Renaud Dehousse (editor) THE ‘COMMUNITY METHOD’ Obstinate or Obsolete? Kenneth Dyson and Angelos Sepos (editors) WHICH EUROPE? The Politics of Differentiated Integration Michelle Egan, Neill Nugent and William E. Paterson (editors) RESEARCH AGENDAS IN EU STUDIES Stalking the Elephant Kevin Featherstone and Dimitris Papadimitriou THE LIMITS OF EUROPEANIZATION Reform Capacity and Policy Conflict in Greece Stefan Gänzle and Allen G. Sens (editors) THE CHANGING POLITICS OF EUROPEAN SECURITY Europe Alone? Eva Gross THE EUROPEANIZATION OF NATIONAL FOREIGN POLICY Continuity and Change in European Crisis Management Adrienne Héritier and Martin Rhodes (editors) NEW MODES OF GOVERNANCE IN EUROPE Governing in the Shadow of Hierarchy Wolfram Kaiser, Brigitte Leucht and Michael Gehler TRANSNATIONAL NETWORKS IN REGIONAL INTEGRATION Governing Europe 1945–83 Hussein Kassim and Handley Stevens AIR TRANSPORT AND THE EUROPEAN UNION Europeanization and its Limits
Robert Kissack PURSUING EFFECTIVE MULTILATERALISM The European Union, International Organizations and the Politics of Decision Making Katie Verlin Laatikainen and Karen E. Smith (editors) THE EUROPEAN UNION AND THE UNITED NATIONS Intersecting Multilateralisms Esra LaGro and Knud Erik Jørgensen (editors) TURKEY AND THE EUROPEAN UNION Prospects for a Difficult Encounter Karl-Oskar Lindgren and Thomas Persson PARTICIPATORY GOVERNANCE IN THE EU Enhancing or Endangering Democracy and Efficiency? Ingo Linsenmann, Christoph O. Meyer and Wolfgang T. Wessels (editors) ECONOMIC GOVERNMENT OF THE EU A Balance Sheet of New Modes of Policy Coordination Hartmut Mayer and Henri Vogt (editors) A RESPONSIBLE EUROPE? Ethical Foundations of EU External Affairs Philomena Murray (editor) EUROPE AND ASIA Regions in Flux Daniel Naurin and Helen Wallace (editors) UNVEILING THE COUNCIL OF THE EUROPEAN UNION Games Governments Play in Brussels David Phinnemore and Alex Warleigh-Lack REFLECTIONS ON EUROPEAN INTEGRATION 50 Years of the Treaty of Rome Sebastiaan Princen AGENDA-SETTING IN THE EUROPEAN UNION Carolyn Rowe REGIONAL REPRESENTATION IN THE EU Between Diplomacy and Interest Mediation Emmanuelle Schon-Quinlivan REFORMING THE EUROPEAN COMMISSION Roger Scully and Richard Wyn Jones (editors) EUROPE, REGIONS AND EUROPEAN REGIONALISM Asle Toje AFTER THE POST-COLD WAR The European Union as a Small Power Richard G. Whitman and Stefan Wolff (editors) THE EUROPEAN NEIGHBOURHOOD POLICY IN PERSPECTIVE Context, Implementation and Impact Richard G. Whitman (editor) NORMATIVE POWER EUROPE Empirical and Theoretical Perspectives
Palgrave Studies in European Union Politics Series Standing Order ISBN 978–1–4039–9511–7 (hardback) and ISBN 978–1–4039–9512–4 (paperback) (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England
The EU Comitology System in Theory and Practice Keeping an Eye on the Commission? Jens Blom-Hansen Professor, Department of Political Science, Aarhus University, Denmark
© Jens Blom-Hansen 2011 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2011 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–24142–8 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Blom-Hansen, Jens. The EU comitology system in theory and practice : keeping an eye on the Commission? / Jens Blom-Hansen. p. cm. Includes bibliographical references and index. ISBN 978–0–230–24142–8 (alk. paper) 1. European Commission—Committees. 2. Decision making— European Union countries. 3. Delegated legislation—European Union countries. 4. Legislative oversight—European Union countries. I. Title. JN33.5.B56 2011 341.242 226—dc23 2011029567 10 9 8 7 6 5 4 3 2 1 20 19 18 17 16 15 14 13 12 11 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne
Contents
List of Figures
vi
List of Tables
vii
List of Boxes
ix
Foreword and Acknowledgements
x
1 Introduction
1
2 A Crackpot Concept
15
3 A Delegation Perspective on Comitology
34
4 The Origins of Comitology
53
5 What is at Stake? A Case Study of the 2006 Comitology Reform
72
6 Comitology Preferences in Daily Legislation
94
7 Comitology Across Policy Areas
118
8 The Comitology System in Daily Practice
143
9 Conclusion
176
Notes
193
Literature
197
Index
212
v
List of Figures
3.1 Modelling the choice of administrative regime for common policies as a pure coordination game nested within a ‘battle of the sexes’ game 3.2 Understanding the daily workings of the comitology system 6.1 Regulations and directives proposed and enacted under the 1999 comitology decision (no. of acts)
vi
39 50 104
List of Tables
2.1 2.2 2.3 2.4 2.5 3.1 5.1 5.2 6.1 6.2 6.3 6.4 6.5 7.1 7.2 7.3 7.4 7.5 7.6 8.1
Treaty regulation of the comitology system over time The list of comitology procedures over time An example of a comitology provision in a directive Standard rules of procedure for comitology committees (excerpts) The comitology system according to institutional affiliation in the Commission in 2008 Overview of hypotheses, data and chapters What is at stake? Manifestations of institutional interests in the 2006 reform of the comitology system Instruments to pursue institutional interests in the 2006 reform of the comitology system Comitology preferences, 1999–2006: Commission versus Council Comitology preferences, 1999–2006: Commission versus European Parliament Comitology preferences, 1999–2006: European Parliament versus Council Comparison across time of Commission–Council agreement on comitology procedures (per cent) Pure cases of inter-institutional disagreement on comitology under the 1999 comitology decision Comitology procedures across policy areas, 1999–2006 (per cent) Summary statistics on variables used in logistic regression models Logistic regression analysis of the choice of comitology over no comitology Probability of choosing comitology over no comitology for selected types of conflict and complexity Logistic regression analysis of the choice of stringency of comitology control Probability of choosing stringent comitology for selected types of conflict and complexity The Brussels–Copenhagen comitology connection vii
22 24 27 28 31 50 90 92 108 109 110 111 113 119 134 136 138 139 141 154
viii List of Tables
8.2 Descriptive statistics on all variables used in regression analyses in Chapter 8 8.3 Comitology committees scoring low and high values on the issue complexity measure 8.4 Regression analysis of the discretion of the Danish comitology representatives 8.5 Factor analysis of the behavioural dispositions of the Danish comitology representatives 8.6 Regression analysis of the behavioural dispositions of the Danish comitology representatives 8.7 Factor analysis of the Danish comitology representatives’ evaluation of the nature of meetings in their committee 8.8 Factor analysis of the Danish representatives’ evaluation of the Commission’s roles in the comitology committees 8.9 Regression analysis of the Commission’s behaviour in the comitology committees
157 160 161 164 164 168 170 172
List of Boxes
6.1 8.1
Data set on comitology in EU regulations and directives, 1999–2006 The Danish comitology survey
ix
104 149
Foreword and Acknowledgements
This book is the result of work conducted on the comitology system over several years. Papers that ended up as chapters or parts thereof have been presented at a number of occasions including the 2010 Annual Meeting of the American Political Science Association, the 2007 Annual Meeting of the Midwest Political Science Association, the 2007 General Conference of the European Consortium for Political Research, the 2008 Pan-European Conference on EU Politics organized by the ECPR’s Standing Group on the European Union and the 2008 Conference of the Nordic Political Science Association. I am thankful for comments and suggestions from participants at these meetings. For detailed feedback on various drafts, I am indebted to many people. I would especially like to mention Gijs Jan Brandsma, Claudio Radaelli, Kutsal Yesilkagit, Ulf Sverdrup, Åse Gornitzka and Kieran St Clair Bradley. My excellent colleagues in the public administration division at the Political Science Department here in Aarhus have also read and commented intensively on different parts of the book. Their efforts are much appreciated. I wish to thank Manuel Szapiro and Paolo Ponzano, both from the Commission’s General-Secretariat, Marta Arpio Santacruz from the Council’s Legal Service and Kieran St Clair Bradley from the European Parliament’s Legal Service. They have all taken time to let me ask questions and discuss ideas on the 2006 comitology reform. I also wish to thank the many civil servants in the ministries of the Danish government in Copenhagen who took time from their busy schedules to fill out the questionnaire that constitutes the data for Chapter 8. I owe Kutsal Yesilkagit special thanks for help in organizing my stay at the Utrecht School of Governance in the summer of 2006. I also owe Cathie Jo Martin many thanks for help in organizing my stay in Boston in the summer of 2009. These occasions gave highly valued breathing spaces to work on the project. I am grateful to the globalization project organized by the Faculty of Social Sciences at Aarhus University for funding my travel and datacollection expenses. Some of the material in Chapter 4 appeared in the Journal of European Public Policy, vol. 15(2), 2008, pp. 208–27, and parts of Chapter 5 in the European Law Journal, vol. 17(3), 2011, pp. 343–64. x
Foreword and Acknowledgements xi
I am grateful to these journals’ publishers for permission to reuse the materials here. I owe many thanks to Annette Andersen here in Aarhus for her superb secretarial skills and help in preparing the manuscript. Finally, thanks to Marina for always being there and taking on the job as my first critic. Jens Blom-Hansen, Aarhus
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1 Introduction
Second-tier rule-making On 8 July 2010, officials from the Transport Ministries in the EU1 member state capitals travelled to Brussels. Their destination was the headquarters of the European Organisation for the Safety of Air Navigation (Eurocontrol) at Rue de la Fusée 96. They were to meet with the Commission2 to discuss its latest initiative under the single European sky programme launched around the turn of the millennium to improve regulation of the European airspace. On the agenda for their meeting was a proposal from the Commission to amend regulation no. 1794/2006, a Commission regulation establishing a common charging scheme for air navigation services in the airspace over Europe. The Commission now wanted to amend it by a new Commission regulation, but could not proceed with its own proposal unless the officials from the national Transport Ministries formally approved. The reason was that the officials constituted a comitology committee, the so-called single sky committee, which was established in 2004 to support the Commission in the implementation of the single European sky programme. In addition to member state representatives the committee consisted of observers from Iceland, Norway, Switzerland and Eurocontrol. Most of the members knew each other well because they had met regularly since 2004, four to five times every year. The meeting on 8 July 2010 was their 36th meeting. When the committee convened in the Europa conference room at Eurocontrol, the Commission, as usual, chaired the meeting. Having achieved the committee’s approval of the meeting’s agenda and the minutes of the committee’s previous meeting, the chairman turned to item 2a on the agenda, the amendment of the Commission regulation 1
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The EU Comitology System in Theory and Practice
on charging schemes for air navigation services. The chairman asked for a formal vote on the proposal. Only member state representatives were allowed to take part in this formal exercise. Using the same voting system as the Council of Ministers each national delegation then formally gave a vote on behalf of its national government. This resulted in 273 weighted votes in favour of the Commission’s proposal, no votes against and 58 abstentions. The Commission was happy; it had obtained a qualified majority in favour of its proposal. The Commission could now proceed with its proposal. This was done in the autumn of 2010 when the College of Commissioners formally adopted the regulation. It was then duly published in the EU’s Official Journal on 17 December 2010 and entered into force three days later. The single European sky programme had taken another step forward.3 The position of the single sky committee illustrates the importance of the EU’s second-tier rule-making system. The first tier, where the Commission proposes legislation which is then approved, modified or rejected by the Council4 and the European Parliament, is familiar and visible. But underneath that top layer hundreds of second-order decisions are taken each month to complete or implement rules adopted by the Council and the Parliament. These decisions are taken by the Commission and formally adopted as Commission regulations, directives or decisions. However, in most cases the Commission must first submit its draft rules to a committee such as the single sky committee. The single sky committee is one out of 250–300 committees that monitor the Commission’s rule-making activities. Sometimes it is enough that the Commission consults with the committee; sometimes, like in the case of the single sky committee, it must obtain the formal approval of the committee. The purpose of this committee system is to allow the member states to monitor the Commission’s implementation of legislation adopted by the Council and the Parliament. The system is known as the EU comitology system. Although second-tier rule-making in the comitology system is less familiar and visible than activities at the first tier, it is important. Every year the comitology committees formally approve 1500–2500 implementation measures – Commission regulations, directives and decisions – which complete or implement primary regulation in all policy areas. Examples include rules on animal welfare, the organization of agricultural markets, energy networks, cross-border cooperation within higher education, harmonization of product requirements under the internal market programme, handling of waste to protect the environment, the operation of the EU structural funds, road transportation
Introduction 3
systems and many other things. There is far more rule-making at the second tier than at the well-known first tier, at least in a quantitative sense. This is why all EU actors take a keen interest in the comitology system and its institutional design. As aptly summarized by the weekly magazine European Voice (15 July 2010, p. 6) in a report on the Lisbon Treaty’s impact on the comitology system: What decision-making rights should be given to the [comitology committees], by whom and under what conditions, is a matter of great importance. This is not the Parliament and the Council squabbling over whether the Commission should do the housework. It is about who gets to redesign the house. This book is a journey into the universe of the comitology committees. It investigates their daily operation, their institutional set-up, the system’s development over time and its broader role in the EU system.
A closer look at the comitology system The body of EU law, the acquis communautaire, consists of several thousand legal acts, most of which are made by the Commission as delegated rule-making. Only a minority is made by the Council of Ministers and the European Parliament. In fact, according to Eur-Lex, the EU’s official online register of EU law, the Commission has issued 69 per cent of all EU legislation that is in force today.5 Although the Commission is thus an important rule-maker, it is not autonomous. As the story of the single sky committee showed, the Commission is in many areas monitored by committees of member state representatives, known as comitology committees. These committees are not involved in all Commission rules; but almost. There are no official accounts, but an investigation of all Commission rules made in the period 2004–08 – a total of 11,056 rules – shows that 55–65 per cent were checked by a comitology committee (Brandsma, 2010a, p. 33). In other words, comitology is a standard operation procedure for delegated rule-making in the EU system. The committees in the comitology system are gatekeepers. They cannot amend or reject Commission proposals, but may refer them to the Council if they disagree with them. There is a lot of variation in the exact working rules of committees. Until the Lisbon Treaty they were specified in so-called comitology decisions made by the Council, for example Council of Ministers (2006a). After the Lisbon Treaty they are made as
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The EU Comitology System in Theory and Practice
regulations by the Council and the European Parliament. These working rules specify the decision rule in the committees to refer proposals to the Council, the timing of Council control, the default condition if the Council does not act and the degree of involvement of the European Parliament. The comitology system has changed considerably over time. It was established in the early 1960s when the Common Agricultural Policy was introduced. With the growth of Community legislation, the practice of establishing comitology committees also grew. It proved to be a practical solution for the member states to the problem of delegating decision-making powers to the Commission without losing control (Bergström, 2005). The system did not have any solid treaty foundation until 1987 when the Single European Act amended article 202 (ex-145). From then on the treaty recognized that the Council might ‘impose certain requirements’ upon the Commission when delegating implementing powers (Haibach, 2000). Following this change of the treaty the Council adopted its first comitology decision specifying the operating rules of the committees in the system (Council of Ministers, 1987). The rules were overhauled and simplified in 1999 when the Council adopted its second comitology decision (Council of Ministers, 1999a). But simplification was rolled back in 2006 when the 1999 decision was amended and the so-called regulatory procedure with scrutiny was introduced (Council of Ministers, 2006b). The Lisbon Treaty, which is introduced in more detail in the next chapter, paves the way for a new comitology regime; partly because it introduces a distinction between legislative, delegated and implementing acts and only specifically operates with a comitology system for implementing acts; partly because the comitology framework rules, which until now have been specified by the Council’s comitology decisions, in the future will be set in regulations enacted by the codecision procedure6 and thus give the European Parliament more influence on the rules (Craig, 2008; Ponzano, 2008; Hoffmann, 2009). The comitology system is still to a large extent a white spot on the EU map. Many aspects of the system remain under-researched, and there is a glaring imbalance between the impressive amount of research on first-tier EU decision-making by the Council and the Parliament and the limited research on second-tier EU rule-making by the Commission and the comitology committees. This book seeks to redress that imbalance and find answers to three fundamental, unresolved questions about the comitology system.
Introduction 5
Comitology: A unique system – but why? Parliamentary control of delegated rule-making by the executive is a problem known from all political systems, but solving it by a comitology system is unique to the EU. How and why did comitology start? The dominant answer in the literature is a functional one. The system was created in the early 1960s as a response to the Council’s need to delegate implementing powers to the Commission without losing control. With only slight variations this is the standard textbook explanation (Nugent, 2003, pp. 131–40; Pollack, 2003a, pp. 114–52; Hix, 2005, pp. 52–9). Even special studies focusing on the development of comitology over time devote surprisingly little attention to the origins of the system (Vos, 1997; Dogan, 1997; Haibach, 2000; Bergström, 2005, pp. 43–57). However, functionalist reasoning may be misleading. The functions of institutions may be quite different from the motives that led to their establishment. At the very least, functionalist reasoning about institutional origins should be a hypothesis, not a premise (Pierson, 2000). But even if the functional reason is correct, it overlooks the importance of choice. If the member states really needed to delegate tasks, but at the same time worried about losing national control, comitology represented an institutional solution. But other solutions could easily be imagined, for example solutions used in their own national systems to solve similar problems, so why was comitology chosen? This is the first important question that this book addresses.
Full of sound and fury, signifying – what? Almost all observers of comitology are struck by the inter-institutional rivalry about the system. Many use warlike metaphors to describe the political processes behind the development of the system. For instance, Franchino (2007, p. 283) talks of a ‘legislative battle on comitology’ in his investigation of the European Parliament’s endeavours to strengthen its position in the system. In a similar vein, Bergström’s (2005, p. 313) comprehensive treatment of comitology concludes that ‘the role of the European Parliament has been characterized by struggle . . . the tactic of the European Parliament has been to wear its opponents down by use and abuse of all means available until the point has been reached where they realize that it will be less costly to make concessions than to resist’. Likewise, Pollack (2003a, p. 120) speaks of ‘an ongoing political battle’ among the EU institutions when explaining the
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The EU Comitology System in Theory and Practice
evolution of the comitology system. Bradley (2008, p. 850), a seasoned observer of parliamentary tactics in the comitology area, concludes on the 2006 reform of comitology that ‘Parliament had to use the full panoply of its institutional prerogatives, legislative, budgetary and jurisdictional . . . these are for the most part weapons of mass obstruction . . . yet the fact is that, without recourse to such tactics, it seems unlikely that the 2006 reforms would ever have got off the ground’. But what exactly is at stake? Despite the obvious intensity of the interinstitutional negotiations behind the comitology rules, we really know very little of the driving forces behind the system. What are the interests of the negotiating actors, their strategies and the instruments they have at hand to pursue their interests? Understanding the development of the comitology system over time is the second important question addressed by this book.
The comitology system in practice: Bargaining or deliberation? Most comitology observers agree that the system’s numerous committees are established to control the Commission. Most observers also agree that the different decision procedures used by the committees constrain the Commission to different degrees. The accepted view is that, among the pre-Lisbon procedures, the regulatory procedure is more restrictive than the management procedure, which again is more restrictive than the advisory procedure. This hierarchical ordering has been confirmed by game theoretical analyses of the procedures (Steunenberg et al., 1996, 1997; Ballman et al., 2002). After the Lisbon Treaty the regulatory and management procedures have been merged into a new so-called examination procedure, while the advisory procedure is unchanged. The constraining effects of the two future procedures are obviously very different. However, the constraining effect of the comitology procedures is contingent upon certain, but often implicit, behavioural assumptions. It is an old insight from the institutional literature that outcomes are determined by the interaction of institutional rules and actor orientations. In Ostrom’s words (1986), you need both a model of the situation and a model of the actors to explain outcomes. Or, as Scharpf (1989; see also 1997, pp. 84–9) has put it, policy choices are determined by the combination of decision rules and decision styles. The underlying behavioural assumption in comitology analyses inspired by game theory or rational choice theory is that preferences are fixed and defined exogenously to
Introduction 7
the decision situation. In this view, the national representatives travel to the comitology meetings in Brussels to defend predefined national interests. However, considerable evidence suggests that this working assumption is, at best, only partially valid. The literature provides two images of the committees’ daily workings (Pollack, 2003b). The first image – associated with authors such as Joerges and Neyer (1997a, b), Dehousse (2003) and Wessels (1998) – is drawn from sociological institutionalism and constructivism. It suggests that comitology committees provide a forum in which experts meet and deliberate to find the best or most efficient solutions to common policy problems. According to this image, comitology is a technocratic version of deliberative democracy in which informal norms, deliberation and good arguments matter more than economic interests and formal voting rules. The second image – drawn from rational choice theory and associated with authors such as Steunenberg et al. (1996, 1997), Pollack (2003a, pp. 114–46), Ballman et al. (2002) and Franchino (2000a) – portrays comitology committees as miniature versions of the Council. They provide arenas for tough intergovernmental bargaining where the member states fight over secondary rules to implement EU legislation. The primary evidence to shed light on the two images is provided by case studies of individual committees. But apart from Joerges and Neyers’ (1997a, b) well-known study of the Standing Committee for Foodstuffs, case studies of comitology committees seem to find traces of both images in the daily workings of comitology committees (Bradley, 1998; Daemen and van Schendelen, 1998; Philip, 1998; Töller, 1998; Gehring, 1999) as do survey-based studies (Egeberg et al., 2003; Blom-Hansen and Brandsma, 2009). These findings are puzzling. Can it really be true that comitology committees operate as autonomous free-floating decision-making bodies? Are the national representatives in the comitology committees not instructed by their home government? Do the member states really struggle to establish control mechanisms and then forget about them once they are in place? The third and final important question addressed here is how the numerous comitology committees operate in day-to-day practice.
The book’s argument This book argues that the comitology system is best understood from a delegation perspective. In general, legislators value the ability to delegate power to the executive because this allows them time and
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The EU Comitology System in Theory and Practice
energy to deal with more pressing business, helps them resolve difficult issues and provides them with information from specialists on complex matters. However, legislators cautiously decide when to delegate and which powers to give away because they face the possibility that the executive will make decisions that can go against their preferences. The comitology system was originally created to facilitate delegation from the member states to the Commission without losing control. The fact that the system is first and foremost an oversight mechanism has implications for all subsequent decisions on the system. The member states, the European Parliament and the Commission care so much about getting the minutest details of the comitology procedures right because they suspect that this may affect policy decisions down the line. This is the logic that drives the design of the system. The need to control the Commission varies across issue areas, and delegation can take place without comitology procedures, with permissive procedures or with strict procedures. But as the book will demonstrate, the pattern is not random. Predictable factors that are well-known from the delegation literature determine the choice of comitology procedures as well as the daily workings of the committee system and the discretion enjoyed by the individual national representatives. When the comitology system appears to be dominated by a deliberative decision style, and when national representatives appear to enjoy considerable discretion, it is not a coincidence, but because the member states have deliberately decided so. The delegation argument on the comitology system is explained in more detail in Chapter 3.
The contributions of this book In addition to the literature on comitology, the book contributes to the literature on EU committee governance, multi-level governance and rational delegation. EU committee governance. The first contribution is to the literature on committee governance in the EU. The starting point for this literature is the fact that committees are involved in all phases of the EU decisionmaking process. In the agenda-setting phase the Commission takes advice from expert committees of member state representatives and other actors. In the decision-making phase the Council’s and Coreper’s decisions are prepared in Council working groups of member states’ representatives. Finally, in the implementation phase the Commission is assisted by comitology committees. These three types of committees
Introduction 9
are not only present in the decision-making process, they are heavily involved. The treaty-based EU decision-makers – the Commission, the Council, the European Parliament – can be considered the tip of the iceberg, while the committees are the larger, submerged part of the iceberg. Since the three types of committees occupy distinct roles in the EU decision-making process, and since their formal competence varies, it is natural to study them in their own right. So just as some studies focus on comitology committees, some studies focus on Commission expert groups (Mahoney, 2004; Broscheid and Coen, 2007; Gornitzka and Sverdrup, 2008) and Council working groups (Beyers, 2005; Fouilleux et al., 2005; Häge, 2007; Naurin, 2009). However, a growing literature makes cross-cutting studies of these committees under the assumption that they are all examples of a broader EU committee system (Egeberg et al., 2003; Quaglia et al., 2008; Rhinard, 2002). Since the volume edited by Christiansen and Kirchner (2000), it has been common to refer to this broader system as ‘EU committee governance’. The study of this system has not least been advanced by a number of volumes where editors have collected analyses of selected aspects of the system (Pedler and Schaefer, 1996; van Schendelen, 1998; Joerges and Vos, 1999; Andenas and Türk, 2000; Christiansen and Larsson, 2007). Since the different types of committees are involved in different phases of the same policy process, they often deal with the same issues. There may also be considerable overlap at the personal level across the committees because they may all want to draw on the same type of expertise from the member states’ national governments. There is also considerable overlap between the political and democratic concerns they give rise to. Can committee members be held accountable? Are they socialized into a special supranational ethos? Are the committees too technocratic? Do they strike the right balance between professional solutions and democratic transparency? Are they bargaining forums or arenas for expert deliberation? Have they got the balance between input and output legitimacy right? These questions are relevant for all types of committees. This book investigates in depth several of them in the comitology area and thus contributes to understanding the broader phenomenon of EU committee governance. Multi-level governance. The book’s second contribution is to the growing body of studies of multi-level governance in the EU. The starting point for this literature is the fact that European integration is a process in which authority and policy-making influence are shared across multiple levels of government. According to this literature, a new type of
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The EU Comitology System in Theory and Practice
decision-making system is emerging in which various territorial levels form intermeshing networks and require mutual cooperation in order to carry out joint tasks. Multi-level governance was first proposed by Marks (1992, 1996) and Hooghe (1996) as a useful concept to understand policy dynamics in the area of EU cohesion policy, but was soon advocated as a general model of EU policy-making (Marks et al., 1996). Multi-level governance has been studied in a number of EU policy areas. It draws attention to the complex, multi-layered nature of the EU political system and raises a number of questions (Bache, 2004) that are also relevant in the comitology area: How is multi-level governance different from hierarchical control? What is the relationship between formal and informal institutions? What does multi-level governance imply for the power, position and role of the nation state? To what extent does multi-level governance vary across policy areas? The multi-level governance model has been criticized for conceptual ambiguity, for empirical imprecision and for equating multi-level involvement with multi-level influence (Pollack, 1995; Bache, 1999; Peters and Pierre, 2004; Blom-Hansen, 2005; Piattoni, 2009). Refining the theory has therefore been a challenge. This has been taken up by Hooghe and Marks (2003) who, on the basis of a broad range of literature, distil two distinct types of multi-level governance. Type I describes general-purpose, permanent, non-intersecting and territorially nested jurisdictions, for instance a federal system. Type II governance describes task-specific, intersecting, flexible, fluid and semi-permanent arrangements that typically target functionally specific policy problems, for instance inter-regional commissions and intercity agencies. Hooghe and Marks consider both types of multi-level governance radical departures from the centralized state, but models that diffuse authority in contrasting ways. They represent alternative models of coordinating across levels and as such raise troubling questions. ‘How do these types coexist? What are their dynamic properties? How is democracy limited or enabled in each institutional setup?’ (Hooghe and Marks, 2003, p. 241). By focusing on comitology, this book investigates a prominent example of type II multi-level governance. In fact, in their original presentation of the multi-level governance model, Marks et al. (1996, p. 367) pointed to comitology as a clear-cut example of the intermeshing of levels in the EU, but it was a call for further research that was not heeded in the multi-level governance literature. In Chapters 5–7, this book investigates the dynamic properties of the comitology system, and
Introduction 11
in the conclusion it addresses the broader democratic aspects of the system. In this way the book contributes to understanding multi-level governance in the EU. Rational delegation. The third literature to which this book contributes is the rational delegation literature. The proper dividing line between the legislative and executive branch of government – or, between politics and administration – has occupied the minds of social scientists for as long as social science has existed. About 100 years ago Woodrow Wilson (1887) and Max Weber (1970) discussed the dilemma between the need for bureaucratic expertise and the dangers of bureaucratic power. Delegation and legislative control have never left the research agenda (cf. Ogul and Rockman, 1990) and have been revitalized as research questions in the past 10–15 years where they have increasingly been studied through the lenses of rational choice theory. This redirection of the delegation literature began as studies of the US Congress (Kiewiet and McCubbins, 1991; Epstein and O’Halloran, 1996), but it soon moved beyond this empirical setting and is today applied to a wide range of systems, including the EU (Franchino, 2007; Pollack, 2003a). The rational delegation literature will be introduced in more detail in Chapter 3. For the moment I want to make the point that this book not only draws upon this literature to understand the comitology system. By investigating a unique, but widely used, legislative oversight mechanism it also contributes to our understanding of legislative delegation in general. I elaborate this point in more detail in the concluding chapter. The comitology system allows the EU member states to monitor delegated decision-making. At the same time it qualifies delegated decision-making by adding expert knowledge to the system. As a side effect, this latter point may make comitology attractive from a democratic-normative perspective, a point that will also be discussed in the concluding chapter.
Outline of the book The objective of this book is to increase our understanding of the comitology system and add to the comitology literature. Chapter 2 reviews this literature and introduces the nuts and bolts of the comitology system. It pays special attention to the changes brought about by the Lisbon Treaty. Readers who are already familiar with the comitology system may want to skip this chapter. The more specific purpose of the book is to address three prominent, unresolved issues in the comitology literature. Why does the comitology
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The EU Comitology System in Theory and Practice
system exist? What are the driving forces of the system’s development over time? How does the system work in daily practice? Chapter 3 presents the book’s theoretical perspective on these questions. It argues that they are best understood from a delegation perspective. Chapter 3 also derives a set of hypotheses to be investigated in the empirical chapters. Chapter 4 addresses the origins of the comitology system. It argues that, contrary to conventional wisdom, the exact choice of comitology can only be explained by the actions of the Commission. This conclusion is based on a case study of the first uses of comitology within three EU policy areas: agriculture, development aid and customs policy. The chapter relies on three types of documentary sources – the legal texts in the EU’s Official Journal, the Commission’s monthly Bulletin and the daily news coverage of EU affairs by the Brussels-based news agency, Agence Europe. Over the eight–nine years in the 1960s when comitology was introduced, this agency produced more than 20,000 pages of detailed coverage of the EU’s daily affairs. Chapter 5 is the first of three chapters that investigate the driving forces of the comitology system. The three chapters analyse the two primary instruments to influence the system’s design under a given treaty regime: first, the Council’s so-called comitology decisions, which specify the range of decision procedures that a given comitology committee can be equipped with, and, second, daily EU legislation which decides whether or not to install a comitology committee as a watchdog over delegation of specific rule-making powers to the Commission. Chapter 5 focuses on the first instrument, the Council’s comitology decisions. They specify the procedures which regulate how the committees may refer proposals to the Council, the timing of Council control, the default condition if the Council does not act and the degree of involvement of the European Parliament. In short, the Council’s comitology decisions provide a laundry list of institutional checks that may, or may not, be installed in any given delegation situation. The logic behind the comitology decisions is analysed by a case study of the 2006 comitology reform where the latest comitology procedure before the Lisbon Treaty – the regulatory procedure with scrutiny – was introduced. The case study makes it possible to flesh out in detail what institutional interests and instruments mean in the area of comitology. It demonstrates that the Council’s comitology decisions are the result of a two-dimensional constitutional struggle. The first dimension concerns the relative supervisory position of the two legislative actors, the
Introduction 13
Council and the European Parliament. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. Chapter 6 focuses on the second instrument to influence the design of the comitology system, namely the exact specification of comitology provisions in individual legislative acts. That is, it focuses on daily legislative practice under the framework specified by the Council’s comitology decisions. The aim is to determine the specific institutional comitology preferences of the Commission, the Council and the European Parliament. This is done by analysing all directives and regulations enacted under the 1999 comitology decision, a total of 686 legislative acts. The chapter shows that the handling of comitology issues in daily legislative practice has become routinized over time. Compared with the period before the turn of the millennium there is much more agreement on the choice of comitology procedures among the legislative actors. It would be misleading to interpret this as a sign of convergence of preferences over time. It is more likely due to a growing degree of correct anticipation by the legislative actors of each other’s preferences. The relatively few cases of open disagreement exhibit a systematic pattern of institutional preferences that corroborates Chapter 5’s findings on the Council’s comitology decision. Overall, the two chapters suggest that the inter-institutional battle over comitology is not fought over daily legislative matters, but over the general rules specified by the comitology decisions. Chapter 7 investigates daily legislative practice in further detail. It seeks to explain the EU legislators’ exact choice of comitology procedure within the rules specified by the Council’s comitology decisions. Like Chapter 6, it investigates all directives and regulations enacted under the 1999 comitology decision. It demonstrates that the EU legislators’ choice of when and how to delegate powers to the Commission is determined by factors that are well-known from the rational delegation literature. In areas characterized by high issue complexity and in areas of institutional conflict, the Council and the Parliament install stricter comitology procedures to control the Commission. Chapter 8 addresses the daily workings of the numerous comitology committees. Most scholars agree that the committees are established to control the Commission, but observers of the committees’ daily practice report that the committees do not always act as controllers of their home government’s interests. The chapter offers a more systematic approach to this phenomenon in a population study of all
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The EU Comitology System in Theory and Practice
comitology committees. The data, collected via a questionnaire to all comitology representatives from the author’s home country, Denmark, make it possible to provide systematic answers to questions such as how member states control their comitology representatives, the extent to which committee members deliberate or bargain and the role of the Commission which chairs and supports all committees. Chapter 9 concludes. It reviews the book’s main empirical findings in light of the existing literature on comitology and delegation. It demonstrates how the findings complement, revisit and sometimes challenge existing studies. The chapter ends by evaluating the normative implications of the findings with regard to the EU’s democratic legitimacy and the changes introduced by the Lisbon Treaty. Does the comitology system contribute to the EU’s so-called democratic deficit? This is an often-heard criticism, but while the system may be lacking in traditional input legitimacy, its ready access to unmatched expertise may mean that it contributes to output legitimacy.
2 A Crackpot Concept
‘If you meet someone who says he knows all about comitology, run a mile’, the magazine European Voice (28 May 1998) warned its readers several years ago. This system is ‘astoundingly arcane’, it explained. Ten years on, the Financial Times (14 July 2009) saw little change. The comitology system is ‘impenetrable even to most Brussels-watchers’, it reported. However, according to The Economist (19 April 2001), comitology has some potential, at least within complex regulatory fields such as European securities regulation. Although sceptical about the system’s democratic credentials this magazine, not normally known as an admirer of Brussels bureaucracy, acknowledged that comitology may be a ‘less crackpot concept than its name implies’. These mixed outside evaluations are not without resonance inside the EU system. Taking over after the disgraceful dismissal of the Santer Commission in 1999 the new Commission President Romano Prodi launched an ambitious institutional reform programme. According to the famous White Paper European Governance (Commission, 2001a), the EU’s main problem was that ‘many people are losing confidence in a poorly understood and complex system’ (ibid., p. 3). Prodi wanted to increase transparency, accountability and decision-making effectiveness. One of his reform targets was the comitology system. ‘It must . . . be clearer who is responsible for policy execution’ (ibid., p. 31), the White Paper declared and went on to question the need for the most complicated procedural aspects of comitology. Their abandonment would ‘make decision-making simpler, faster and easier to understand’ (ibid., p. 31). Five years later, in the summer of 2006, the comitology system was finally changed but the reform was not as envisaged by the Commission. The most complicated procedures were not abolished. On the contrary, a new and even more complicated procedure, the so-called regulatory 15
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The EU Comitology System in Theory and Practice
procedure with scrutiny, was added to the system’s already labyrinthine rules. The reason was that the European Parliament, long an ardent critic of comitology, seized the moment to gain more influence over executive rule-making, and the new procedure was the means to this end. The Parliament’s rapporteur admitted that ‘comitology is confusing and easily subject to misinterpretation’. But rectifying this problem was, after all, of secondary importance. A policy window had opened and the Parliament suddenly had a chance to gain more influence over comitology. As the Parliament saw it, this was a ‘golden opportunity, not to be wasted’ (European Parliament, 2003a, p. 21). The Parliament got its way because the member states in the Council of Ministers felt it increasingly unjustifiable to keep the Parliament out of delegated rule-making. The growing use of the codecision procedure had turned the Parliament into an almost full-blown co-legislator, but in the area of delegated rulemaking its position was still second to the Council. This state of affairs was increasingly difficult to defend. The Lisbon Treaty finally established the European Parliament as a full co-designer of the comitology system, triggering a new round of inter-institutional infighting over the system. As this account indicates, comitology is a part of constitutional politics in the EU. The system is one of the determinants of the balance of power between the Commission, the Council and the European Parliament, and that is why they take such an active interest in comitology. The system is the result of half a century’s political haggling, and that is why it is so Byzantine. However, the criticisms of comitology’s bewildering complexity are less valid today than they used to be. The system is still shrouded in secrecy in many respects. For instance, it is very difficult to find out who the member states’ official representatives in the many comitology committees are and how they receive instructions from their home government before formal votes are taken. But two things have changed over the last 10–15 years. The first is that the system is now much more open than in the past. Since 2000 the Commission has published an annual report on the comitology system that contains information on the number and types of committees, their meeting frequency and the number of adopted opinions and implementing measures (e.g. Commission, 2009a). In 2003, the Commission established an online comitology register that provides detailed information on agendas for meetings in comitology committees, attendance lists, summary records, vote results and draft measures (http://ec.europa.eu/transparency/regcomitology/ index.cfm). Although these sources may not be perfect in every respect (Brandsma et al., 2008), they still represent a remarkable improvement in transparency.
A Crackpot Concept
17
The second thing that has changed is scholarly attention. After having neglected comitology for 30–40 years since its introduction in the 1960s (but see Bertram, 1967–68; Schindler, 1971), social scientists finally took an interest in the system around the turn of the millennium. Although the body of works on executive rule-making by the comitology method still pales in comparison with studies of ordinary EU legislative rulemaking, the last 10–15 years have witnessed a dramatic increase in studies of the comitology system. White spots remain, but comitology is no longer completely unmapped territory in the EU system. The purpose of this chapter is to review the literature and introduce the nuts and bolts of the comitology system. The following sections describe the history of the system, the changes introduced by the Lisbon Treaty, the system’s institutional set-up and its incidence in daily politics.
The history of comitology Although the comitology system was not part of the original treaties, it is almost as old as the EU. The Rome Treaty included a vague provision on delegation of implementation power to the Commission (article 155), but did not specify how and when the Council should delegate powers, or whether any control mechanisms were to be installed. However, soon after the treaty entered into force the need for delegating powers to the Commission became evident, not least due to the introduction of the Common Agricultural Policy, which required daily administration at the collective level. The member states delegated this task to the Commission but required it to obtain approval from management committees when adopting implementation measures (Demmke et al., 1996; Haibach, 2000; Bergström, 2005, pp. 38–78). The use of committees of member state representatives to ‘assist’ the Commission in delegated decision-making grew over the decades, and implementation committees soon amounted to several hundred (Falke, 1996, 2000). The weak treaty foundation of the comitology system was rectified by the Single European Act in 1987. The EC Treaty (article 202, ex-145) from then on required the Council to delegate powers to the Commission, but also allowed the Council to attach conditions to the delegated powers. However, the new treaty provision required the Council to establish these conditions in advance in the form of framework rules for the use of delegated powers. This was done by the Council’s first comitology decision in 1987 (Council of Ministers, 1987), which basically confirmed the committee procedures that had grown out of practice over the years. The Commission’s delegated powers would thus be subject to review by advisory, management and regulatory
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The EU Comitology System in Theory and Practice
committees and a safeguard procedure (Vos, 1997). The Council’s decision was a disappointment to the European Parliament whose wish for supervisory control rights had been ignored. The Parliament challenged the comitology decision before the European Court of Justice, but the case was declared inadmissible. However, inter-institutional rivalries continued, not least after the Maastricht Treaty which introduced the codecision procedure. As a co-legislator the Parliament demanded the same rights as the Council in the control of the Commission’s delegated rule-making (Bradley, 1992, 1997). The inter-institutional skirmishes led to a new comitology decision in 1999 (Council of Ministers, 1999a), which simplified, but upheld, the advisory, management, regulatory and safeguard procedures, and allowed the Parliament some control of ultra vires behaviour by the Commission (Haibach, 1999; Bergström, 2005, pp. 209–85). However, the 1999 comitology decision did not put a stop to inter-institutional rivalries, not least due to the European Parliament which still found its weak position in the area of delegated rule-making unsatisfactory. And with the growth of the codecision procedure it was now in a better position to pursue its long-held ambition of more control of delegated decision-making. After protracted negotiations a third comitology decision was made in 2006 (technically an amendment to the 1999 decision), introducing a new version of the regulatory procedure – a ‘regulatory procedure with scrutiny’ – that put the Parliament on the long-sought equal footing with the Council in the control of the Commission’s delegated decision-making (Christiansen and Vaccari, 2006; Schusterschitz and Kotz, 2007). This was the last change before the Lisbon Treaty.
The Lisbon Treaty The Lisbon Treaty, which entered into force in December 2009, has important implications for the comitology system. The treaty repeals the EC Treaty’s article 202, the former legal basis of the comitology system, and introduces a new hierarchy of legal acts. Legislative acts are adopted by the Council and Parliament, while executive acts are adopted by the Commission, or in some instances by the Council, as either delegated acts or implementation acts (articles 289–291 TFEU). The Lisbon Treaty thus represents a new approach to delegated rule-making in the EU (Craig, 2008; Ponzano, 2008; Hoffmann, 2009). Delegated and implementation acts are both subjected to parliamentary control, but through different mechanisms. Delegated acts are Commission non-legislative rules of general application that
A Crackpot Concept
19
supplement or amend non-essential elements of a legislative act. Before the Lisbon Treaty these Commission rules were typically subjected to comitology control by the regulatory procedure with scrutiny. The Lisbon Treaty specifies two future parliamentary control mechanisms here, a right of revocation and a right of opposition, but not a comitology system. In contrast to delegated acts, implementation acts are to be controlled by a comitology system. The Lisbon Treaty explicitly states that the Commission’s exercise of implementing powers is to be controlled by the member states. The treaty also stipulates that framework rules on the operation of the future comitology system must be made in advance. But in contrast to the pre-Lisbon system the framework rules are to be made in regulations enacted under the codecision procedure, not in Council decisions. Following the entry into force of the Lisbon Treaty, the Commission proposed new systems for parliamentary control of the two new types of executive rules: delegated acts and implementation acts. After protracted inter-institutional negotiations the systems were agreed upon in late 2010 and formally introduced in 2011 (Brandsma and Blom-Hansen, 2011). Regarding delegated acts, the new parliamentary control mechanisms introduced by the Lisbon Treaty do not, in principle, need any secondary rules to become operative. However, the EU institutions agreed from the outset that a common understanding on their use in daily legislation would be desirable. Consequently, the Commission (2009b) made a proposal specifying a general framework for the operation of the new control mechanisms. The proposal was negotiated with the Council and the European Parliament, and a common understanding was reached in late 2010 that will function as an inter-institutional agreement on the practical arrangements of delegation of powers under article 290 TFEU (European Parliament, Council and Commission, 2011). The contested points in these negotiations were threefold: the extent of Commission consultation of member state experts in the preparation of new acts; the duration of delegated powers; and the exact time limits for expressing parliamentary opposition to draft acts. The Commission took a minimalist approach to these issues and valued executive autonomy, while the Council and the Parliament took a maximalist approach and valued effective control positions. The final compromise, as stated in the common understanding, was held in broad and relatively abstract terms. Consultation of member state experts must be ‘appropriate’. Powers may be delegated for either an unlimited or a limited period to be
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The EU Comitology System in Theory and Practice
automatically extended unless the legislators oppose. The time limit for expressing parliamentary opposition to draft acts is set at two months, which can be extended by another two months. In sum, the three institutions’ common understanding leaves much to be decided in subsequent legislative practice. Only broad parameters have been set for the exact operation of the new parliamentary control mechanisms under article 290 TFEU. Regarding implementation acts, the Lisbon Treaty requires that framework rules on the comitology system are made before the system can become operative. This requirement is identical to the pre-Lisbon situation with the important change that the framework rules will no longer take the form of a Council decision adopted under the consultation procedure, but of a regulation adopted under the codecision procedure. The Commission (2010b) presented its proposal for new framework rules in early 2010. If adopted, it would lead to a much simpler comitology system and more executive autonomy. The Commission envisaged only two future comitology procedures. The regulatory procedure with scrutiny would be abolished since acts adopted under this procedure would, in the future, be made as delegated acts controlled by the mechanisms under article 290 TFEU. The advisory procedure would be upheld and upgraded to the general comitology procedure. The management and regulatory procedures would be merged into a new so-called examination procedure modelled on the old management procedure. Furthermore, the Commission made the radical proposal of abolishing the principle of referring cases to the Council when committees deliver unfavourable opinions. Instead, the Commission was to be entitled to submit an amended proposal to the same committee. Finally, the Commission proposed that the common commercial policy be included in the comitology system. This would mean that the EU’s external trade protection measures, including the numerous acts introducing anti-dumping or countervailing duties on third countries trying to export goods to the EU area, would be subjected to comitology control in the future. The Commission’s comitology proposal met considerable opposition in both the Council and the European Parliament. The Council was especially concerned about the weak position of the member states under the proposed examination procedure and the abolishment of the system of referring controversial cases to the Council. The Parliament worried about its right of scrutiny under the 1999 comitology decision, which was not included in the Commission’s proposal.
A Crackpot Concept
21
The negotiations ended with a compromise in late 2010, and the new post-Lisbon comitology system was subsequently introduced by regulation 182/2011 (European Parliament and Council, 2011). The system of referring cases to the Council when committees deliver negative opinions is abolished, as proposed by the Commission. But instead a so-called appeal committee of member state representatives is introduced. In the case of highly controversial meetings the member states may let ministers represent them in this committee. Furthermore, the Commission’s proposed new examination procedure is upheld, but variants are introduced that in essence bring the old regulatory procedure back in. For example, in selected cases of no opinion from the committees the Commission must refer its draft implementing act to the new appeal committee. Finally, the inclusion of the EU’s common commercial policy under the comitology system turned out to be a thorny issue. In the end, a special arrangement was agreed upon for this policy area under the new comitology regulation. In sum, although some important details have been changed, the post-Lisbon comitology system is closely modelled on the pre-Lisbon system. The regulatory and management procedures live on as variants of the new examination procedure, and the advisory procedure is not changed at all. Criteria for choosing procedures in daily legislation remain non-binding, the Commission continues to preside over committee meetings, and the European Parliament’s right of scrutiny is intact. The new system still includes an appellate body, although this function is no longer carried out by the Council, but by the new appeal committee to which member states may decide to appoint ministers. Acts previously decided under the regulatory procedure with scrutiny are taken out of the comitology system and will in the future be enacted as delegated acts. New types of acts are added to the system, namely the numerous trade protection measures adopted under the common commercial policy. In short, the post-Lisbon comitology reform represents an incremental, but hotly contested, change of the system which leaves the comitology system more complicated and labyrinthine than ever. In this sense, the reform resembles the 1987, 1999 and 2006 comitology reforms.
The institutional set-up of comitology The numerous comitology committees operate under rules at four levels: treaty rules, framework rules, rules in individual legislative acts and working practices in the individual committees.
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The EU Comitology System in Theory and Practice
Table 2.1 Treaty regulation of the comitology system over time The Rome Treaty (1957), article 155: In order to ensure the proper functioning and development of the common market, the Commission shall . . . exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter. Single European Act (1986), article 10: Article 145 of the EEC Treaty shall be supplemented by the following provision: [the Council shall . . . ] confer on the Commission . . . powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. . . . The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament. Lisbon Treaty (2007), article 2, point 236 (new article 249 C): . . . 2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission . . . 3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. c European Union, http://eur-lex.europa.eu/’. Source: Eur-Lex.‘
Level 1: The treaty. The first level is the treaty, which specifies how rules on the operation of the comitology system are made. Over the course of history there have been three different treaty provisions, cf. Table 2.1. The first was the vague delegation provision in the Rome Treaty’s article 155. The Single European Act replaced this with the new article 202 TEC (ex-145). Both provisions privileged the Council as the designer of the comitology system although the Single European Act specified that framework rules on the comitology system must be made by the consultation procedure and thus left a role for all three legislative actors. This state of affairs was changed by the Lisbon Treaty which stipulates that in the future comitology rules will be made by the Council and the Parliament acting together under the codecision procedure (article 291 TFEU). The treaty provisions are important because, as argued by Bergström et al. (2007), they specify the actors’ bargaining powers when negotiating rules on the comitology system. And the historical record shows that the actors strategically use their negotiation resources to try to change the comitology rules according to their preferences. For example, it was
A Crackpot Concept
23
no accident that the member states were privileged in the comitology system until the Single European Act. The comitology system until then simply ‘reflected the superior bargaining power of the Council in negotiating the institutional set-up of the procedures with the Commission and the Parliament’ (Bergström et al., 2007, p. 351). Level 2: Framework rules. The second level of rules consists of framework rules on the comitology system. That is, rules on committee procedures, time limits, the involvement of the Council and the European Parliament. The framework rules constitute a list of committee types that can be used in daily legislation. Until the Lisbon Treaty the framework rules were made as Council decisions – in 1987, 1999 and 2006 (Council of Ministers, 1987, 1999a, 2006b). The Lisbon Treaty now specifies that framework rules must be made as regulations under the codecision procedure. In legal terms the framework rules occupy a position under the treaty, but over ordinary legislation in the sense that they are binding on legislative acts that confer implementing powers (Schaefer and Türk, 2007, p. 184). They specify how the individual committees may refer proposals to the Council, the timing of Council control, the default condition if the Council does not act and the degree of involvement of the European Parliament. The exact nature of the various comitology procedures has changed over time, but until the Lisbon Treaty they were always referred to as the advisory, management, regulatory and safeguard procedures, and they constrained the Commission to varying degrees. As game theoretic analyses confirm, the safeguard procedure was the strictest, the regulatory procedure was stricter than the management procedure, which again was stricter than the advisory procedure (Steunenberg et al., 1996, 1997; Ballman et al., 2002). Following the Lisbon Treaty, a compromise has been reached that the four comitology procedures are simplified into two new procedures: an advisory procedure that is identical to the previous advisory procedure and a new examination procedure. The latter procedure is introduced in variants that replace the old management and regulatory procedures (European Parliament and Council, 2011). The specific details of the different procedures and their development over time are summarized in Table 2.2. Traditionally, the position of the European Parliament in the comitology system has been weak. Under the Council’s 1987 decision it played no role at all. The 1999 decision granted the Parliament some insight and supervisory powers. It was now to receive all relevant information and to exercise some control of ultra vires behaviour by the Commission. If the Parliament found that the Commission’s
24 Table 2.2 The list of comitology procedures over time 1987–1999 (Council’s 1987 decision)
1999–2006 (Council’s 1999 decision)
2006–2011 (Council’s 2006 decision)
2011–? (EP/Council’s 2011 regulation)
Advisory procedure
The Commission must take ‘the utmost’ account of the committee’s opinion, but may enact the measure regardless of that opinion.
No change
No change
No change
Management procedure/ examination procedure
The Commission can enact the measure unless the committee opposes by QMV∗ in which case the measure is referred to the Council and either:
Variants removed. The Commission can enact the measure unless the committee opposes by QMV∗ in which case the measure is referred to the Council. The Commission may then enact the measure, but the Council may oppose by QMV∗ within three months.
No change
Renamed examination procedure (primary variant) and slightly changed. The Commission can enact the measure unless the committee opposes by QMV∗ in which case the measure is either referred to the appeal committee, which may oppose by QMV∗ , or an amended version resubmitted to the committee.
Variants removed. The Commission can enact the measure only if the
New variant introduced: The regulatory procedure with
Renamed examination procedure (secondary variants) and slightly
Variant A: the Commission may enact the measure, but the Council may oppose by QMV∗ Variant B: the Commission must defer enactment until the Council reacts by QMV∗ or fails to react. Regulatory procedure/ examination procedure
The Commission can enact the measure only if the committee supports by
25 QMV∗ . Otherwise the measure is referred to the Council and either: Variant A: the Council may oppose by QMV∗
committee supports by QMV∗ . Otherwise the measure is referred to the Council which may oppose by QMV∗ .
scrutiny. Irrespective of the opinion of the committee, the Commission’s measure is always referred to the Council and the European Parliament. If they object, the measure is blocked.
changed. The Commission can enact the measure only if the committee supports by QMV∗ . Otherwise the measure is either referred to the appeal committee, which may oppose by QMV∗ , or an amended version resubmitted to the committee.
Variants removed. Any committee member may refer the Commission’s measure to the Council which may oppose by QMV∗ within a prescribed period. No reaction may mean that the measure is revoked.
No change
Abolished
Variant B: the Council may oppose by simple majority.
Safeguard procedure
Any committee member may refer the Commission’s measure to the Council which: Variant A: may oppose by QMV∗ within a prescribed period. No reaction allows the Commission to enact the measure Variant B: may oppose by QMV∗ within a prescribed period. No reaction means the measure is revoked.
Note: Until 1987 there were no framework rules on the procedures to be followed by the comitology committees. Instead, this was decided on a case-by-case basis. ∗ Qualified majority voting. Source: Council of Ministers (1987, 1999a, 2006b); European Parliament and Council (2011).
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The EU Comitology System in Theory and Practice
proposal exceeded its delegated powers, it might adopt a resolution. The Commission had to take this resolution into account, but was nonetheless allowed to continue with the procedure (Lintner and Vaccari, 2007). The 2006 decision was widely seen as a victory for the European Parliament because it gained veto rights over delegated decision-making in the EU for the first time. Under the new regulatory procedure with scrutiny both the Council and the European Parliament could block the Commission’s proposals (Bradley, 2008). In the post-Lisbon system the European Parliament has full supervisory powers over delegated acts under article 290 TFEU and continues to hold a right of scrutiny in relation to acts adopted by comitology procedures. The framework rules specify different types of committee procedures, but provide few guidelines on when to use which type. The 1987 comitology decision provided no guidelines at all, but the 1999 decision stated in article 2 that the management procedure ‘should’ be used within the areas of the common agricultural and fisheries policies and in relation to programmes with substantial budgetary implications. The regulatory procedure ‘should’ be used in relation to measure of general scope within the areas of health or safety of humans, animals or plants. The advisory procedure is to be used ‘in any case in which it is considered to be the most appropriate’. However, as the wording signals, these guidelines were informal. This is even stressed in the fifth consideration of the 1999 decision which explicitly states that they are of a ‘non-binding nature’, a stipulation that the European Court of Justice has sanctioned (Türk, 2007, p. 233). The 2006 comitology decision provided a more binding guideline for the use of the new regulatory procedure with scrutiny which, according to the decision’s recital 7a, must be used for implementing measures ‘of general scope’. The post-Lisbon system introduced more guidelines, although still of a non-binding nature. According to article 2 in the 2011 comitology regulation (European Parliament and Council, 2011), the new examination procedure applies ‘in particular’ to implementation acts of general scope, acts with substantial implications or acts relating to the following policy areas: the common agricultural and fisheries policies, the environment, the health of humans, animals or plants, the common commercial policy and tax policies. For other types of implementation acts the advisory procedure is to be used ‘as a general rule’. In sum, the legislators have in practice considerable freedom to decide the choice of comitology procedure on an ad hoc basis in daily legislation. Within the menu provided by the pre-Lisbon comitology decisions and the postLisbon comitology regulation, the choice of committee type is relatively free (see also Bergström, 2005, pp. 272–4).
A Crackpot Concept
27
Table 2.3 An example of a comitology provision in a directive Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise∗ Provision delegating power to the Commission (article 12): ‘The Commission shall adapt Annex 1, point 3, Annex II and Annex III to technical and scientific progress in accordance with the procedure provided for in Article 13(2).’ Provision specifying the comitology procedure (article 13(2)): ‘Where reference is made to this paragraph, Article 5 [the regulatory comitology procedure] and 7 of Decision 1999/468/EC [the Council’s 1999 comitology decision] shall apply.’ ∗
Published in OJ L 189, 18 July 2002, pp. 12–25.
There is broad agreement in the literature that the framework rules on the comitology system are the object of intense inter-institutional rivalry (Franchino, 2000b; Pollack, 2003a, pp. 114–46; Bergström, 2005, pp. 285–308; Bradley, 2008), but there is less agreement on what exactly is at stake at this level. Chapter 5 is my contribution to this debate. Level 3: Daily legislative practice. The comitology framework rules specify a list of committee types. However, the decision on which committee type to install in a given delegation situation is taken on a case-by-case basis in daily legislative practice. This is the third level of rules. Whenever the Council and the European Parliament decide to insert a delegation provision in a legislative act, they may decide to add a comitology provision too. In the example in Table 2.3, the act, in this case a directive, contains an article delegating power to the Commission on the condition that a certain comitology procedure is used. The exact choice of comitology procedure is then specified in another article by a reference to the framework rules, in this case the Council’s 1999 comitology decision. This is standard legislative practice. The literature does not agree on how exactly the comitology framework rules are used in daily legislative practice. The question is why comitology clauses are sometimes inserted into legislative acts and sometimes not, and why comitology clauses are sometimes strict and sometimes permissive. A number of scholars argue that comitology is installed in concrete situations to give the Commission access to expertise in the member states’ national administration (Falke, 1996, 2000; van Schendelen, 1996). Other scholars argue that comitology is installed to control the Commission, and that strict procedures are used when control needs are high (Dogan, 1997, 2000; Franchino, 2000a,
28
The EU Comitology System in Theory and Practice
2007, pp. 273–86; Pollack 2003a, pp. 140–4). Chapters 6 and 7 are my contribution to this debate. Level 4: Daily working practice. The final level of rules is the formal and informal working practices within the individual committees. The Commission chairs all committees and provides secretarial assistance. Each committee adopts its own rules of procedure on how to convene meetings, draw up agendas, send out material to committee members, represent absent committee members, admit third parties to the meetings and so on. In practice, the Commission’s (2001c) standard rules of procedure are followed to a great extent. See Table 2.4 for a condensed version of these rules. The individual committee members are normally policy specialists from the national central administrations. If they are not able to attend, Table 2.4 Standard rules of procedure for comitology committees (excerpts) Article 1: Convening a meeting 1.
A committee meeting is convened-by the Chairman . . .
Article 2: Agenda 1. 2.
The Chairman shall draw up the agenda and submit it to the committee. The agenda shall make a distinction between: (a) proposed measures about which the committee is asked to give an opinion . . . (b) other issues . . .
Article 3: Documentation to be sent to committee members 1.
The Chairman shall send the invitation to the meeting, the agenda and proposed measures about which the committee’s opinion is required and any other working documents to the committee members . . . no later than 14 calendar days before the date of the meeting.
Article 4: Informing the European Parliament 1. 2.
The Commission shall send the agenda . . . to the European Parliament for information, The Commission shall send the overall result of voting . . . to the European Parliament . . .
Article 5: Opinion of the committee 1.
When the advisory procedure leads to a vote, the outcome of the vote shall be decided by a simple majority of the committee members. When the committee’s opinion is required under the management or regulatory procedure, this is determined by means of a majority vote, as provided for in Article 205(2) of the Treaty. . . .
A Crackpot Concept
29
Article 6: Representation and quorum 1.
Each Member State delegation is considered to be one committee member. . . .
Article 7: Working groups 1.
The committee may create working groups . . .
Article 8: Admission of third parties 1.
The Chairman may decide to invite experts to talk on particular matters . . .
Article 9: Written procedure 1.
If necessary and justified, the committee’s opinion can be obtained by a written procedure. . . .
Article 10: Secretarial support The Commission shall provide secretarial support for the committee . . . Article 11: Minutes and summary report of the meeting 1.
The minutes of each meeting shall be drawn up under the auspices of the Chairman. . . .
Article 12: Attendance list 1.
At each meeting, the Chairman shall draw up an attendance list . . .
Article 13: Correspondence 1.
Correspondence relating to the committee shall be addressed to the Commission . . .
Article 14: Transparency 1.
The principles and conditions concerning public access to the committee’s documents shall be the same as those applying to Commission documents . . .
Source: Commission (2001c).
they may be replaced by persons from their permanent representation in Brussels, or arrangements are made so that representatives from other member states can vote on their behalf. The committees meet with highly varying frequency. Some meet almost weekly, some only once or twice a year. The number of participants in a given meeting can be quite high since member states are allowed to bring more than one person. The increasing number of participants, especially after the latest enlargement, appears to have given meetings a more formal character, less room for informal discussions and a greater reliance on English as the daily working language (Schaefer and Türk, 2007; Piedrafita, 2009; Alfé et al., 2009).
30
The EU Comitology System in Theory and Practice
The exact nature of the day-to-day practice of the numerous committees is a matter of debate in the literature (cf. Pollack, 2003b). Some scholars, most famously Joerges and Neyer (1997a, b), argue that comitology committees function as deliberative arenas for policy experts, while other scholars portray them as intergovernmental bargaining sessions where the member states fight over secondary rules to implement EU legislation (Steunenberg et al., 1996, 1997; Franchino, 2000b; Ballman et al., 2002; Pollack, 2003a, pp. 114–46). Chapter 8 is my contribution to this debate.
The incidence of the comitology system As noted in Chapter 1, approximately two-thirds of all rules in the EU are made by the Commission as delegated rule-making, and comitology committees control approximately half of all Commission rules. Against this background it is not surprising that the comitology system is found in all policy areas where the EU holds regulatory authority. The spread of the system across policy areas has been investigated by Dogan (1997, 2000) and Falke (1996, 2000). More up-to-date accounts are provided by the Commission in its annual comitology reports. Some key figures on the pre-Lisbon system from the Commission’s 2008 report are listed in Table 2.5. The table shows that the five comitology procedures were used to different degrees, although many committees operated according to multiple procedures. The regulatory procedure was the most frequently used single procedure. The management procedure was used to a somewhat lesser extent, while the advisory procedure and the regulatory procedure with scrutiny were used rarely. The safeguard procedure has always been a rarely used procedure and was in 2008 no longer used at all. However, there were important variations across policy areas. For instance, the management procedure was frequently used in agriculture, while the regulatory procedure was popular in the environmental area. The last three columns of Table 2.5 report summary measures of the spread of comitology across policy areas. These quantitative measures should be used with caution. First, they disregard the importance of the various committees relative to the total regulatory activity of the Commission within the given area. Second, the exact number of comitology committees is a subject of some controversy since there is no agreed upon definition of a committee. Some committees are divided into permanent subcommittees, and some committees are ‘dead’ in the sense that they meet rarely or never, so providing an exact number is difficult.
Table 2.5
The comitology system according to institutional affiliation in the Commission in 2008 No. of committees according to decision procedure
Enterprise and Industry Employment, Social Affairs and Equal Opportunities Agriculture and Rural Development Transport and Energy Environment Research Information Society and Media Fisheries and Maritime Affairs Internal Market Regional Policy
Several procedures
Total no. of committees
Total no. of meetings
Total no. of adopted implementation measures
Advisory
Management
Regulatory
Regulatory with scrutiny
Safeguard
6
3
15
0
0
10
34
57
307
2
0
2
0
0
1
5
4
20
0
19
5
0
0
4
28
226
439
3
3
9
0
0
21
36
60
63
0 0 0
2 2 4
21 0 0
0 0 0
0 0 0
13 4 5
35 6 9
57 62 28
85 168 79
0
1
0
0
0
3
4
15
39
1
1
7
2
0
3
14
42
16
0
0
0
0
0
1
1
9
0
31
32
Table 2.5 (Continued) No. of committees according to decision procedure
Taxation and Customs Union Education and Culture Health and Consumers Justice, Liberty and Security External Relations Trade Enlargement EuropeAid Humanitarian Aid Statistics Budget Anti-Fraud Office Information Technology Total
Total no. of meetings
Total no. of adopted implementation measures
Advisory
Management
Regulatory
Regulatory with scrutiny
Safeguard
1
3
5
0
0
1
10
114
55
1
1
0
0
0
5
7
14
69
2
0
8
0
0
7
17
123
311
4
1
4
2
0
13
24
37
106
0
2
0
0
0
1
3
4
0
3 0 0 0
3 3 7 0
3 0 0 0
0 0 0 0
0 0 0 0
2 0 1 1
12 3 8 1
24 6 38 6
12 69 110 47
0 1 0
3 0 0
2 1 1
0 0 0
0 0 0
4 0 0
9 2 1
16 5 3
20 6 0
0
1
0
0
0
0
1
3
1
24
59
83
4
0
100
270
953
2,022
Source: Commission (2009a).
Several procedures
Total no. of committees
A Crackpot Concept
33
But with these reservations in mind Table 2.5 indicates that comitology, although used in all policy areas, is most prevalent in a few policy areas. Agriculture is still the area where comitology is used most, but other areas are catching up: environment, enterprise and industry, health and consumers and research. This pattern reflects the widening of the EU’s functions and the extent of delegation of decision-making authority to the Commission.
Conclusion: A standard operating procedure The comitology system has for long led a quiet life in the minds of EU observers. Recent years have seen a growing interest in the system, but in many respects it remains a white spot on the EU map. This state of affairs is quite remarkable because the comitology system has developed into a standard operating procedure within delegated decision-making in the EU. The system involves hundreds of committees and thousands of civil servants in Brussels and in member state capitals. It is used in all areas where the EU holds regulatory authority, and where power is delegated to the Commission. It is a relatively complex system comprising four distinct institutional levels. This is the result of a historical process that is almost as old as the EU. It is time that the comitology system receives as much scholarly attention as the rest of the EU system. This book seeks to contribute to that endeavour.
3 A Delegation Perspective on Comitology
‘Precision, speed, unambiguity, knowledge of the files, continuity, discretion, unity, strict subordination, reduction of friction and of material and personal costs.’ This is what Max Weber (1970, p. 214) saw, about 100 years ago, as the advantages of political delegation of powers to the bureaucracy. Delegation would increase the capacity of the government immensely. ‘The bureaucracy compares with other organizations exactly as does the machine with the non-mechanical modes of production’ (ibid., p. 214). However, while praising the technical potential of delegation of powers to the bureaucracy Weber was also deeply worried about the political influence of the bureaucracy. ‘The power position of a fully developed bureaucracy is always overtowering. The “political master” finds himself in the position of the dilettante who stands opposite the “expert”’ (ibid., p. 232). At around the same time, across the Atlantic, Woodrow Wilson had similar thoughts. He also saw great potential in delegating decisionmaking power to the administrative branch of government. The reason was that legislators need the technical insight of trained administrators. ‘There is scarcely a single duty of government which was once simple which is not now complex’ (Wilson, 1887, p. 200). However, like Weber, he also feared the power of the executive branch: I know that a corps of civil servants prepared by a special schooling and drilled, after appointment, into a perfected organization, with appropriate hierarchy and characteristic discipline, seems to a great many very thoughtful persons to contain elements which might combine to make an offensive official class, – a distinct, semicorporate body with sympathies divorced from those of a progressive, free-spirited people (ibid., p. 216). 34
A Delegation Perspective on Comitology
35
In short, to both Weber and Wilson, the challenge for legislators was to delegate without unduly empowering the executive. In the following century this challenge occupied the minds of social scientists on both sides of the Atlantic, although maybe not to the extent wished by Weber and Wilson (Rockman, 1984; Ogul and Rockman, 1990). However, the last 10–15 years have seen a renewed interest in delegation studies. This has coincided with the rise of rational choice theory, and delegation is increasingly studied as a rational institutional choice made by utility-maximizing legislators. This approach to delegation began with studies of the US Congress (Kiewiet and McCubbins, 1991; Epstein and O’Halloran, 1999), but the literature soon included delegation studies of other legislative–executive settings such as the US states (Huber and Shipan, 2002, pp. 139–71; Volden, 2002), Western parliamentary systems (Huber and Shipan, 2002, pp. 171–210; Strøm et al., 2003) and the EU (Kelemen, 2002; Pollack, 2003a; Franchino, 2004, 2007). This literature points to several reasons why legislators delegate to the executive (for reviews see Huber and Shipan, 2000, 2006; Bendor et al., 2001; Voigt and Salzberger, 2002; Strøm, 2003). First and foremost, legislators need the technical insight of the executive branch to formulate detailed policies, but other considerations may also be important. Delegation may be a tool to reduce the workload of legislators, to shift responsibility for unpopular decisions (‘blame avoidance’) or to protect policies against reversals in the future. Delegation may also be a means to avoid legislative cycling, solve coordination problems or establish credible commitments. In short, delegation may reduce decision-making costs for the legislature. However, the literature also points to several dangers of delegating powers to the executive. First and foremost, delegation means empowerment, and power may be used for unintended purposes. Delegatees may choose to drift from the delegators’ preferred policies, so there is a risk of agency loss. But other dangers may also be relevant. Delegation increases the costs of reversing policies, reduces legislative flexibility and may create legitimacy problems. Delegation also creates problems of coordinating and monitoring the work of the delegatee. Obviously, delegation of powers involves benefits as well as costs for the legislators. Since delegation involves both benefits and costs, calculating the right amount of discretion to grant the executive is not straightforward. However, the amount of agency loss can be minimized by institutions (Lupia, 2003; Huber and Shipan, 2006). Legislators may install ex ante institutions to influence the executive’s incentives and possible actions. Moe
36
The EU Comitology System in Theory and Practice
(1990a, b) argues that legislators may pre-empt future policy reversals by delegating and thus shielding their policy from the influence of a different future legislative coalition. In this way delegation may freeze politics in time. Moe refers to this as the politics of structural choice. McCubbins et al. (1987, 1989) argue that legislatures can design administrative procedures to control the executive. By controlling procedures, legislators can ‘stack the deck’ in favour of particular constituents and thereby channel executive decisions towards the outcome favoured by those who are intended to benefit from the policy. Legislators can also install ex post institutions to monitor the actions of the executive. According to McCubbins and Schwartz (1984), they can choose between ‘police patrols’ and ‘fire alarms’. Control by police patrols is centralized, systematic, regular and costly control, for example, by an audit office, while fire alarm control is decentralized, less systematic and less costly since it relies on third parties. For instance, interest organizations may be given privileged access to the executive rule-making process to facilitate monitoring, or they may simply be relied upon to speak up when their members’ interests are threatened by executive rules or actions. In this sense they may act much like concerned citizens pulling fire alarms to alert fire fighters about dangerous activities. In the following sections I seek answers in the delegation literature to the three questions that this book addresses: Why does the comitology system exist? What are the driving forces of the system’s development? How does the system work in daily practice? Chapter 1 introduced the questions, and this chapter develops a set of hypotheses. The rest of the book investigates the hypotheses empirically.
The origins of the comitology system The puzzle about the origins of comitology is not why the system was installed. Parliamentary control of delegated rule-making by the executive is known in all democratic systems. In the early 1960s, the member states faced an obvious need to delegate implementing powers to the Commission in order to start the common policies on agriculture, the internal market and competition, custom policies, external trade policies and so on. At the same time the member states worried about losing national control, so there was also an obvious need to monitor the Commission. It is not puzzling that a control mechanism of some sort was introduced. There is agreement in the literature that the comitology system was created in the 1960s as a response to the EU member states’
A Delegation Perspective on Comitology
37
dilemma of delegating rule-making powers to the Commission without losing control (Demmke et al., 1996; Dogan, 1997; Vos, 1997; Haibach, 2000; Bergström, 2005, pp. 43–57). Rather, the puzzle is why the member states settled on a comitology system to solve their control problem. The nature of the problem was familiar to them from their national systems, but they still found a solution that none of them knew beforehand. Why was comitology chosen as the solution when the member states were familiar with other solutions from their own national systems? The functional reasons offered in the literature can explain why a control system was installed, but not why the member states made the exact choice of a comitology system. As argued by Pierson (2000), functional reasoning tends to overlook the importance of choice. Comitology represented an institutional solution to the member states’ problem, but why was this solution chosen among the many potential ones? My answer starts with the fact that the instalment of a control mechanism constituted a collective action problem for the member states, and to solve it they delegated agenda-setting powers to the Commission. The comitology system was then proposed by the Commission, and the member states agreed because there was no obvious alternative proposal that could defeat the Commission’s proposal. This explanation represents a new perspective on the origins of the comitology system. Contrary to conventional wisdom, it implies that the exact choice of comitology can only be explained by the actions of the Commission, not the member states. In the following pages this explanation is spelled out in more detail, and testable hypotheses are derived. Comitology was introduced in the early 1960s as part of the Common Agricultural Policy (CAP), which represented a complicated coordination problem. The stakes were huge. It is an example of what Moravcsik (1998) calls a major turning point in EU history. From his investigation of these turning points we know that they are often subjected to hard intergovernmental bargaining because the distributional consequences are clear and the decisions are made in information-rich environments under intense societal pressure. These situations can be modelled as coordination games with clear distributional consequences – ‘battle of the sexes’ games. However, the administration of common policies is analytically distinct from their policy contents and should be understood as a separate negotiation issue. Although administration is seldom neutral, deciding administrative regimes does not lend itself easily to hard intergovernmental bargaining. The implications of different administrative
38
The EU Comitology System in Theory and Practice
solutions are less calculable, and the preferences of domestic groups are typically less intense. Negotiating the administration of the common policy should thus be easier since the distributional consequences of various administrative arrangements are less certain. This situation resembles a pure coordination game known from, for example, traffic rules. Since the negotiations on the contents of common policies and their administration are often linked, the situation can be modelled as a pure coordination game nested inside a ‘battle of the sexes’ game. The game can be illustrated in the two-player version of Figure 3.1. The pay-offs to the actors of coordinating their policies are larger than those of not coordinating, but the choice of cooperative strategy has distributional consequences making actor A prefer policy 1 and actor B policy 2. Given the choice of how to coordinate their policies, the actors must choose an administrative set-up. In the stylized version of the game in Figure 3.1 the choice has no distributional consequences, which leaves the actors without any preference ordering of the administrative alternatives. The game shows that both administrative solutions are stable solutions, but it does not explain why or how the actors would settle on one of them. Predicting outcomes in coordination games is generally difficult because several solutions may serve as equilibrium. However, in pure coordination games the actors are relatively disinterested players. In this situation it is rational to delegate the task of proposing solutions to an agent in order to reduce decision-making costs. When deciding the framework rules on the Common Agricultural Policy, this is exactly what the six member states did. In the Rome Treaty they required the Commission to submit proposals on the implementation of this policy. The Commission was thus entrusted with the role of a formal agendasetter, which may be a powerful role, but it depends on the decision rule in the legislative arena. If the agenda-setter’s proposal is easier to adopt than amend, then it may effectively structure and limit the choices available to the legislators (McKelvey, 1976). In the case of the Common Agricultural Policy, the Rome Treaty specified that proposals required unanimous consent in the Council, which effectively stripped the Commission of formal agenda-setting power. This fact may be taken as an indication of the member states’ reluctance to delegate wide-ranging powers to the Commission. But it did not render the Commission completely powerless because, even if the conditions for formal agenda-setting powers are absent, the agenda-setter may still have causal influence on legislative decisions. As argued by Pollack (2003a, pp. 47–56), agenda-setting may take place informally when an
Player B Policy 1
Policy 2
Administration 1
Administration 2
Administration 1
Administration 2
Administration 1
2–1
0–0
0–0
0–0
Administration 2
0–0
2–1
0–0
0–0
Administration 1
0–0
0–0
1–2
0–0
Administration 2
0–0
0–0
0–0
1–2
Policy 1 Player A Policy 2
Figure 3.1 Modelling the choice of administrative regime for common policies as a pure coordination game nested within a ‘battle of the sexes’ game Note: The pay-offs to player A appear first.
39
40
The EU Comitology System in Theory and Practice
actor can set the agenda for a group of legislators, not through formal powers, but through the ability to define issues and present proposals that can rally consensus. One particular way this may happen is laid out by Garrett and Weingast (1993), who build on Schelling’s (1963) idea of focal points. Schelling argued that coordination problems with multiple solutions can be solved by means of such focal points: It often seems that a cynic could have predicted the outcome on the basis of some ‘obvious’ focus for agreement, some strong suggestion contained in the situation itself, without much regard to the merits of the case, the arguments to be made, or the pressure to be applied during the bargaining. The ‘obvious’ place to compromise frequently seems to win by some kind of default, as though there is simply no rationale for settling anywhere else. (Schelling, 1963, pp. 69–70) According to Schelling (1963, p. 70) focal points have ‘intrinsic magnetism’ and enjoy ‘prominence, uniqueness, simplicity, precedent, or some rationale that makes them qualitatively different from the continuum of possible alternatives’. Building on Schelling’s thoughts, Garrett and Weingast (1993) develop the idea of constructed focal points. They argue that in the absence of a natural or pre-existing focal point, an institution can create one and may even be specifically entrusted with this task. In other words, constructing focal points is one way to exercise informal agenda-setting power. It may seem plausible that constructed focal points can explain why actors settle on one among many potential solutions when they have no particular preferences among the potential outcomes. However, Garrett and Weingast argue that constructed focal points may also have an impact in coordination games with distributional consequences. But so may power. The relative influence of focal points and power is likely to vary with the structure of the strategic setting. The smaller the distributional asymmetries among potential cooperative equilibria, the smaller the differences in actors’ power resources; and the less certain the consequences of agreements, the more important focal points will be. Deciding the administrative set-up of common policies is an example of a coordination game with potential, but also uncertain, distributional consequences. It is plausible that focal points may help solve the game. Based on the theory of constructed focal points, three hypotheses on the origins of comitology can be made. We already know that comitology was first used within the Common Agricultural Policy in
A Delegation Perspective on Comitology
41
the early 1960s. What we do not know is why. The starting point then is the difficult negotiations on the creation of the Common Agricultural Policy. Since administration is seldom neutral, the member states were likely to favour supranational administration to different degrees. The first and basic hypothesis consequently states: Hypothesis 1: The member states had divergent preferences about the administration of the Common Agricultural Policy. Second, compared with the substantial policy issues at stake (target prices, import levies, export subsidies, etc.) the distributional consequences of the administration of the Common Agricultural Policy were low. Although the member states were not completely disinterested players, their preferences were not intense. Consequently, negotiating the administrative set-up had sufficient resemblance to a pure coordination problem to be solvable by way of a carefully constructed focal point. Since this task was deliberately delegated to the Commission, the second hypothesis is: Hypothesis 2: The Commission’s proposal for an administrative set-up for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged. While hypothesis 1 is not necessarily contrary to functionalist explanations of comitology, hypothesis 2 is where functionalist explanations and the focal point explanation diverge. Functionalist explanations are silent on how the decision-makers arrived at their institutional solution. In contrast, the focal point explanation is able to explain the choice of one among many potential solutions. Third, if the Commission’s proposal functioned as a focal point, this will also help explain why this administrative model had staying power. A focal point is one among many potential equilibria. When one is chosen, it is a stable solution, and the original choice of administrative model for the Common Agricultural Policy was therefore difficult to change. However, the idea of focal points can help explain not only the stability of comitology within agriculture, but also its spread to other policy areas. The strength of a focal point can be increased by its sheer use. As noted by Schelling (1963, pp. 67–8): ‘Precedent seems to exercise an influence that greatly exceeds its logical importance . . . often it seems that there is simply no heart left in the bargaining when it takes place
42
The EU Comitology System in Theory and Practice
under the shadow of some dramatic and conspicuous precedent.’ The third hypothesis is an extension of hypothesis 2: Hypothesis 3: The choice of administrative model for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged in other policy areas where supranational administration and national control had to be reconciled.
The driving forces of the comitology system There is broad agreement in the literature that the Council, the Parliament and the Commission take a keen interest in the comitology system, and that it is the object of intense inter-institutional rivalry (Franchino, 2000a; Pollack, 2003a, pp. 114–46; Bergström, 2005, pp. 285–308; Bergström et al., 2007; Bradley, 2008). But what exactly is at stake? My argument is that the design of the comitology system is a game of control positions. No one in the EU system knows for certain how powers delegated to the Commission are going to be used, or what the future precisely entails, but everybody knows that there will be policy decisions to make down the line. When specifying the details of the various comitology procedures, EU legislators cannot specify the contents of these decisions, but they can make sure that they will be in a position to influence them. They know that the structures they choose may well influence the content, direction and effectiveness of future policies. In this sense, administrative procedures are political weapons. They are structural means to pursue political interests. The political choice of administrative procedures is referred to as the politics of structural choice (Moe, 1990a, b) or deck stacking (McCubbins et al., 1987, 1989). It is a messy affair, and instead of technically rational procedures, it results in complex, restrictive, even bizarre, administrative arrangements. The reason is threefold. First, actors cannot afford to prioritize efficiency. Since the future is uncertain, they need to secure control positions in future decision-making situations. Administrative efficiency comes second, if at all. Second, decision-making in a democratic system often involves compromising, which means that the losing side is granted concessions in the design of administrative procedures. Since it is opposed to the policy decisions of the winning side, the losing side does not want efficient administrative procedures, but procedures that make it difficult to implement the winning side’s
A Delegation Perspective on Comitology
43
policies. Third, some degree of autonomy at the level of the bureaucracy is unavoidable because it is impossible to completely foresee all future contingencies within a policy field in legislative acts. Since the bureaucracy may use its autonomy contrary to the interests of the legislative coalition, this coalition cares not only about administrative efficiency, but also about overseeing the administration. In sum, administrative procedures are designed by actors who may care about administrative efficiency, but who primarily care about controlling future policy decisions, who want to subvert administrative performance and who also want to monitor the daily workings of the administration. When designing the comitology procedures, EU legislators specify the degree of control they will have over the use of delegated powers in the future. They do not know what the future will bring, but the comitology rules can be specified to ensure that future decisions will be enacted through procedures which maximize their control over those decisions. The deck may be stacked in favour of some actors and against others. Consequently, the individual EU legislators will press for comitology rules that ensure efficient institutional control positions for themselves and inefficient control positions for their opponents. If the making of comitology rules is an example of the politics of structural choice or deck stacking, the individual EU legislators seek to use these rules to increase their own control over delegated decisionmaking. This means that the legislators will have different preferences over the comitology rules, typically of the following nature. First, the member states in the Council acknowledge the need to delegate decision-making power to the Commission, but they are wary of the Commission and want to be in a position to monitor it and intervene in individual cases. The comitology system is a convenient control instrument since it is staffed by its own stand-ins. In this sense the member states can afford to delegate and to adopt a broad definition of ‘executive decision-making’. Second, the European Parliament is in a very different position. Since the distinction between legislative and executive decision-making is blurred, the European Parliament may fear that the growth of the cumbersome codecision procedure may induce the Council to transfer decisions to the comitology system because the European Parliament is conveniently absent from this system. The comitology system is thus a threat to the European Parliament’s position in the EU institutional system. From the Parliament’s perspective, comitology interferes with its fundamental right to exercise political supervision over the Commission
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and to participate in the legislative process. If seeking to protect its control, the Parliament’s interest is to leave as much real decision-making as possible in the legislative arena, to keep executive decision-making to purely technical matters and to achieve real supervising powers over the Commission by either gaining access to the comitology system or by replacing the comitology system with other monitoring devices. Third, the Commission is also likely to be sceptical about the comitology system, but for different reasons. It survives by being above national interests and acting like a neutral arbiter and entrepreneur on behalf of all member states. In this sense interference from the Council and the member states in its daily affairs is dangerous. Furthermore, it does not want to be bogged down by nightmarish administrative procedures that drag decisions out for years. The Commission’s interest is to protect its autonomy, and in this respect the comitology system represents a threat. However, to some extent the Commission is likely to have mixed feelings about the comitology system. Aware of the member states’ reluctance to delegate decision-making powers, it may be willing to accept comitology procedures in order to increase delegation. These behavioural logics lead to the following set of hypotheses on the EU legislators’ comitology preferences: Hypothesis 4: The Council favours strict comitology procedures. Hypothesis 5: The Commission favours permissive or no comitology procedures. Hypothesis 6: The European Parliament favours: a. narrowing delegation to technical matters b. permissive or no comitology procedures, or alternatively c. access to the comitology system. These hypotheses are likely to hold as general statements, but they paint a broad picture. They do not take into account that the incentive to delegate and to control delegation varies across policy areas. To understand the variation in the use of comitology committees I turn to the part of the rational delegation literature that for a number of years has studied how legislators calculate the right amount of discretion to grant the executive. This literature has led to many insights, but two appear especially robust. The first is that the legislature delegates less discretion when there is conflict either within the legislature or between the legislature
A Delegation Perspective on Comitology
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and the executive. As to conflicting preferences within the legislature, many scholars, for instance Volden (2002, p. 191) and Strøm (2003, p. 58), point to collective action problems as the root of delegation. Legislators may delegate to avoid endless cycling of policy proposals, to overcome stalemate or to solve coordination problems. For example, McCubbins and Page (1987, p. 418) argue that conflicts among legislators make it difficult to specify the tasks to be delegated to the executive because the exclusion of controversial issues can lead to the breakdown of the legislative coalition. The mandate to the executive is therefore likely to be rather broad when the legislature is internally divided. But increased delegation due to conflict within the legislature creates an incentive for procedural oversight. As noted by McCubbins and Page (1987, p. 118): ‘With increased conflict there are increased political risks and therewith increased incentive to direct the choice of regulation by the agency, through the imposition of extensive procedural requirements, away from potentially costly alternatives.’ In short, a positive relationship between conflict within the legislature and the stringency of procedural controls is to be expected. As to conflicting preferences between the legislature and the executive, many scholars, for instance Epstein and O’Halloran (1994, 1996, 1999, pp. 77–9) and Franchino (2007, p. 56), argue that the legislature delegates less discretion if its policy goals and preferences diverge from those of the executive branch. This is known as the ally principle (Bendor et al., 2001, p. 236; Huber and Shipan, 2006, p. 260). When legislators have reason to suspect that the executive will make policy decisions they dislike, they will not delegate broad discretion. Everything else being equal, seen from the perspective of the legislators, preference divergence, or conflict, with the executive branch increases the risk of agency drift, and hence reduces the value of unlimited delegation. One way to limit delegation is to tighten procedural controls. As noted by Epstein and O’Halloran (1996, p. 274), ‘as bureaucrats’ preferences diverge from those of legislators, . . . Congress will rationally place tighter constraints on the use of delegated authority through restrictive administrative procedures’. In short, a positive relationship between legislative–executive conflict and the stringency of procedural controls is to be expected. The second insight from the rational choice delegation literature is that the legislature delegates more authority to the executive in complex issue areas. As discussed by Bawn (1995), legislators often face a trade-off between control and expertise, and this is likely to affect
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the authority granted to the executive. Increasing executive authority makes it possible for the executive to incorporate knowledge of policy consequences into its decisions. Seen from the legislators’ perspective, growing complexity means that the gains from the executive’s expertise will gradually outweigh the losses from potential agency drift. In other words, the optimal level of executive authority increases with growing issue complexity. However, when executive authority grows, the risk of agency loss increases. In this situation McCubbins et al. (1989) argue that legislators can constrain the agency’s policies through procedural controls. This will allow them to capture the benefits of agency flexibility while minimizing the risk of non-compliance. Similarly, McCubbins and Page (1987, p. 417) find that complexity forces Congress to delegate regulatory authority, but that ‘with increased uncertainty congressmen prefer to prescribe an increasingly extensive array of regulatory procedures for agency decision making’. In short, a positive relationship between complexity and the stringency of procedural controls is to be expected. In sum, it is a common expectation of the delegation literature that procedural control of delegated powers increases with the degree of conflicting preferences either within the legislature or between the legislature and the executive, and with the complexity of the issue area. If the comitology committees function as procedural control mechanisms of delegated power in the EU system, the delegation literature would expect the following hypotheses to be important explanations of the variation of comitology control across policy areas: Hypothesis 7: Growing conflict within the Council and the European Parliament or between the Council, the European Parliament and the Commission leads to stricter comitology procedures. Hypothesis 8: Growing issue complexity leads to stricter comitology procedures.
The comitology system in daily practice There is agreement in the literature that comitology committees are installed by the EU legislators to control the Commission. There is less agreement on how the committees function in day-to-day practice. Observers of the day-to-day operations in various comitology committees report that the national representatives do not act as controllers of their home government’s interests, but rather as policy experts seeking professionally sound solutions to common policy problems. They
A Delegation Perspective on Comitology
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appear unconstrained by their home government, or at least operating within wide margins of discretion to solve problems. Meetings in the comitology committees seem to be consensual deliberations between well-intentioned experts, not bargaining sessions between guardians of national interests (Joerges and Neyer, 1997a, b; Wessels, 1998; Dehousse, 2003; Savino, 2009). These findings represent a paradox. Why would the member states struggle to establish control mechanisms and then forget about them once they are in place? My argument is that in order to begin to understand this problem we need to shift our focus from Brussels to national capitals. The national representatives in the various comitology committees are not parliamentarians or government ministers, but civil servants from ministerial departments and agencies. To understand how they behave in Brussels, we need to understand their instructions. How are these civil servants controlled by their ministers? Do they receive instructions before votes are taken in the comitology committees? To what extent is their work in the committees monitored by their home government? In other words, do the seemingly autonomous actions by the national representatives indicate out-of-control bureaucrats or obedient servants faithfully operating within well-understood limits of their mandate? The national government faces a delegation problem. For reasons of a lack of time and insight the ministers cannot sit on the many comitology committees themselves. They need to delegate this task. But how much autonomy should they allow their representatives in the hundreds of comitology committees? To answer this question I again turn to the rational delegation literature which, as explained above, argues that the exact degree of control of delegated powers depends on two key factors. First, the more complex the issue area to be regulated, the greater the need for expert insight to decide regulatory measures. In this situation principals need to allow agents more discretion. However, when bureaucratic discretion grows, the risk of agency drift increases, creating an incentive to offset increased discretion with tighter procedural controls. Second, institutional conflict is likely to lead to stricter procedural control of the executive. According to the ally principle, if there is conflict between the preferences of the principal and the agent, this is likely to make the principal distrustful of the agent and create an incentive to impose more control on the agent. In situations of conflict, delegators tend to delegate less discretion and impose tighter procedural controls on the delegatees.
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In sum, based on the delegation literature the following hypotheses on the national control of comitology representatives are expected to hold: Hypothesis 9: Growing issue complexity leads to increased discretion for the national representatives in the comitology committees. Hypothesis 10: Growing conflict between the national government and the national representatives leads to reduced discretion for the representatives in the comitology committees. These hypotheses imply that the autonomy of comitology representatives is carefully calculated by national politicians according to predictable factors. Some representatives do indeed enjoy considerable discretion – not by coincidence, but because their political masters have deliberately decided so. Having understood the representatives’ instructions, we can shift our focus back to Brussels and study the meetings of the comitology committees. My argument is that representatives armed with clear instructions are not likely to engage in deliberation but rather to defend their negotiation mandate by bargaining. In contrast, representatives who are allowed discretion can afford to deliberate. In other words, it is likely that there is a link between the discretion of the representatives and their behaviour in the committees. This leads to the following hypothesis: Hypothesis 11: Reducing/increasing the national representatives’ discretion leads to more/less bargaining behaviour and less/more deliberative behaviour by the representatives in the comitology committee. The behaviour of the individual national representatives determines the interaction style in the committees. If committees are dominated by deliberating or bargaining representatives, the interaction style will be, respectively, deliberative or bargaining. Committees with representatives exhibiting different types of behaviour are likely to have less clear-cut interaction styles. In other words, the interaction styles in the committees do not develop by accident, but by design. They are the aggregate result of the representatives’ individual instructions. Formulated as a hypothesis this argument is: Hypothesis 12: Committees dominated by deliberating or bargaining representatives are characterized by, respectively, a deliberative or bargaining interaction style.
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Understanding interaction styles in the comitology committees helps us understand the effect of the comitology system. Does it work as a control mechanism? Investigating the constraining effect of formal comitology procedures is not sufficient to answer this question. It is an old insight from the institutional literature that outcomes are determined by the combined effect of institutional rules and actor orientations (Ostrom, 1986). If actors are not necessarily self-interested bargainers, they may transcend the constraints of institutional rules. They may obtain socially optimal outcomes although caught in prisoner’s dilemmas or other conflicts between individual and collective interests. As argued by Scharpf (1989, p. 168; see also 1997, pp. 84–9) in a discussion of confrontational, bargaining and problem-solving styles of decision-making, ‘if solidaristic goals and common cognitive orientations can be generated and maintained among participants, decision rules, and institutional arrangement generally, have much less of an influence on policy choices’. Scharpf (1989, p. 167) refers to this phenomenon as ‘the power of common orientations’. Here, I want to focus on a more immediate impact of actor orientations than policy outcomes, namely the constraining effect of comitology on the Commission. The comitology procedures are installed to control the Commission but, if the institutional insight is correct, actor orientations also matter. In committees characterized by a deliberative interaction style we should expect the Commission to have more manoeuvrability, irrespective of formal comitology procedure. Hence the final hypothesis on the daily operation of the comitology system is this: Hypothesis 13: The more comitology committees characterized by a deliberative interaction style, the more active the Commission. In sum, to understand the daily operations of the comitology system and the puzzling phenomenon of committee autonomy, we need to shift from the supranational to the national level and start by inspecting the instructions of the national representatives. Only if they are allowed discretion is it reasonable to expect autonomy and deliberation at the supranational level. But the supranational interaction style is important, because it may alleviate the constraining effect of strict comitology procedures. The overall rationale of the comitology system – to control the Commission – may thus to some extent be neutralized by the behaviour of the national representatives. But if that is the case, it is because the member states have decided so. The argument is summarized in Figure 3.2.
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Issue
Discretion of
Behaviour of
Interaction
The
complexity
the national
the national
style in the
Commission’s
and
comitology
comitology
comitology
role in the
institutional
representative
representative
committee
comitology
conflict
Figure 3.2
committee
Understanding the daily workings of the comitology system
Conclusion This chapter has applied a delegation perspective on the comitology system and used this literature to derive empirical expectations on the three questions addressed in the book: Why does the comitology system exist? What are the driving forces of the system’s development? How does the system work in daily practice? The overall argument is that these questions represent delegation challenges for the EU member states. They seek to reap the gains of cooperation and delegation, which involves finding a balance between delegating powers to the Commission and not losing control over EU policies. The comitology system is the instrument. The hypotheses derived from the delegation literature will be subjected to empirical analysis in the following chapters. Table 3.1 outlines the empirical analyses and shows where in the book they are presented and the type of data used to investigate the hypotheses. The data will be presented in detail in the relevant chapters.
Table 3.1 Overview of hypotheses, data and chapters Hypotheses
Methods and data
Chapter
The origins of comitology: Hypothesis 1: The member states had divergent preferences about the administration of the Common Agricultural Policy. Hypothesis 2: The Commission’s proposal for an administrative set-up for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged.
Case study of the first uses of comitology within agriculture, development aid and customs policy in the 1960s
4
51 Hypothesis 3: The choice of administrative model for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged in other policy areas where supranational administration and national control had to be reconciled. The driving forces of comitology: Hypothesis 4: The Council favours strict comitology procedures. Hypothesis 5: The Commission favours permissive or no comitology procedures. Hypothesis 6: The European Parliament favours: a. b.
c.
narrowing delegation to technical matters permissive or no comitology procedures, or alternatively access to the comitology system.
Case study of the 2006 comitology reform (introduction of the regulatory procedure with scrutiny)
5–7
Quantitative analysis of all directives and regulations enacted under the 1999 comitology decision (686 legislative acts)
Hypothesis 7: Growing conflict within the Council and the European Parliament or between the Council, the European Parliament and the Commission leads to stricter comitology procedures. Hypothesis 8: Growing issue complexity leads to stricter comitology procedures. Comitology in daily practice: Hypothesis 9: Growing issue complexity leads to increased discretion for the national representatives in the comitology committees.
Quantitative analysis of survey data from questionnaire to all Danish comitology representatives
8
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Table 3.1 (Continued) Hypotheses
Methods and data
Chapter
Hypothesis 10: Growing conflict between the national government and the national representatives leads to reduced discretion for the representatives in the comitology committees. Hypothesis 11: Reducing/ increasing the national representatives’ discretion leads to more/less bargaining behaviour and less/more deliberative behaviour by the representatives in the comitology committee. Hypothesis 12: Committees dominated by deliberating or bargaining representatives are characterized by, respectively, a deliberative or bargaining interaction style. Hypothesis 13: The more comitology committees characterized by a deliberative interaction style, the more active the Commission.
The questions addressed in this book have troubled observers and analysts of the comitology system for many years, and the delegation perspective is not the only approach they have used. The questions have been analysed from many other vantage points over the years and the main contenders have already been introduced: functionalist reasoning to understand the origins of comitology, and deliberative politics to understand the daily workings of the numerous comitology committees. To gauge their relative explanatory power, they will be described in more detail and confronted with the delegation perspective in the empirical chapters. In the concluding chapter, I make a final evaluation of the theoretical lessons of my analyses.
4 The Origins of Comitology
The establishment of the Common Agricultural Policy (CAP) in the early 1960s required extensive and detailed technical regulation which the Council of Ministers could not carry out alone. It simply lacked the time and resources to respond to the needs of day-to-day management. To get an impression of the administrative challenge, it is worth quoting at length from the Commission’s own announcement of its new ‘considerable managerial responsibilities’ on 30 July 1962, the day the Common Agricultural Policy came into force: Customs duties, quantitative restrictions and minimum prices on cereal, pork, eggs and poultry prices, which till now have operated at the member states frontiers, have been replaced by levies fixed by Community rules . . . The application of the cereal regulation will give the EEC Commission the most work; each day [Commissioner for Agriculture] M. Mansholt’s departments will have to register at least 2,000 facts on changes in the world prices. In a few hours they will have to assimilate this information which the Commission will use as a base in establishing the day’s caf price for the various types of cereal . . . The Commission must also fix daily the caf price which is the basis for the amount of the refund granted to the Community exporters to enable them to sell their products on the world market. In addition the Commission must fix daily the levy to be paid by Community dealers on certain cereal imports . . . M. Mansholt’s departments will have to deal with some 2,000 facts per day, and 6,000 once a week. (Agence Europe, 30 July 1962) It was evident to everyone that the Council needed to delegate the daily administration of the Common Agricultural Policy. However, the member states were reluctant to grant the Commission unlimited 53
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implementation power because they feared that they would lose control over an important and sensitive policy area. There is widespread agreement in the literature that this dilemma is the background for the comitology system (Bertram, 1967–68; Schindler, 1971; Demmke et al., 1996; Vos, 1997; Bergström, 2005, pp. 43–57). The puzzle is not that some sort of control system was created to handle this dilemma. Parliamentary control of delegated rule-making by the executive is, after all, a well-known problem in all political systems. All member states had found solutions in their own national systems, but comitology was not among them. This system is unique to the EU. How and why did comitology start? The dominant functional reasoning in the literature overlooks the importance of choice. Why was comitology chosen as the solution to the member states’ dilemma among many potential solutions? This question will be investigated in this chapter. In Chapter 3, I argued that when deciding the Common Agricultural Policy in the early 1960s, the member states faced a collective action problem and solved it by delegating agenda-setting functions to the Commission. This argument implies that, contrary to conventional wisdom, the choice of comitology can be explained by the actions of the Commission, not the member states. The logic of the argument is that negotiating the administrative set-up of the Common Agricultural Policy had sufficient resemblance to a pure coordination problem to be solvable by a carefully constructed focal point. Such a point is one among many potential solutions to a coordination problem. When one solution is chosen, it is stable, so this would explain why the comitology system was installed in other policy areas later in the 1960s when the need arose to reconcile delegation and control. Based on this argument three hypotheses were developed: Hypothesis 1: The member states had divergent preferences about the administration of the Common Agricultural Policy. Hypothesis 2: The Commission’s proposal for an administrative set-up for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged. Hypothesis 3: The choice of administrative model for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged in other policy areas where supranational administration and national control had to be reconciled. This chapter subjects the three hypotheses to an empirical investigation. I start with a brief introduction to the birth of the Common Agricultural
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Policy. This section underscores the premise of my argument, namely that the distributional consequences of the administration of the Common Agricultural Policy were small compared with the huge stakes involved in this policy’s substantial contents. I then move on to a presentation of the data and methods to investigate the three hypotheses. The remainder of the chapter is devoted to empirical analysis of the creation of comitology in the agricultural area and of the spread of comitology to other areas. Two areas, development aid to Africa and the common customs union, are chosen for closer inspection. The chapter concludes with a discussion of the relative merits of my explanation based on the delegation literature and the dominant functional explanation found in the comitology literature.
Coordinating agricultural policies in the early 1960s: Huge stakes The adoption of the Common Agricultural Policy in 1962 was a landmark decision in the history of the EU. Including agriculture in the common market had been decided from the outset, and it was given special treatment in the Rome Treaty. Harmonizing agricultural policies was seen as indispensable for the economic integration process. But at the same time agriculture constituted a special problem. The other major integration steps contained in the Rome Treaty – establishing a customs union, freedom of movement for factors of production and free competition among member states – represented measures of negative integration, that is, they removed obstacles to free and undistorted competition (cf. Scharpf, 1999, pp. 43–83). In the post-treaty phase, integration could be extended in these areas without much political attention through Commission interventions against infringements of treaty obligations, and through decisions by the European Court of Justice. In contrast, establishing a Common Agricultural Policy represented positive integration, that is, the reconstruction of a regulatory system at the supranational level. This requires agreement by national governments in the Council, and in contrast to negative integration it is subjected to the difficulties of consensual intergovernmental decision-making in the post-treaty phase. In addition to this institutional challenge, agreement on a Common Agricultural Policy was made difficult by a number of structural and political factors at the national level. First, the importance of agriculture to the national economy varied considerably among the six member states in terms of share of exports and imports, contribution to GDP,
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share of labour force working in agriculture, agricultural price levels and farmer income levels. Germany, Belgium and Luxembourg were large net importers of agricultural products. The Netherlands was the only significant net exporter, but France was the chief agricultural producer among the member states, accounting for almost 40 per cent of all EU production. Italy, however, had the largest proportion of the population in agriculture, but the lowest agricultural productivity and income level in the EU. Due to these differences, agricultural interests differed widely among the six member states (PEP, 1958, pp. 4–9; 1959, pp. 3–18). Second, the member states all had well-established national agricultural support schemes before the Rome Treaty, including structural reform support aiming at amalgamating holdings, land development programmes, educational and technical advice systems and credit and investment assistance. Furthermore, the member states all had price intervention schemes in the form of fixed, minimum or target prices, state purchases to stabilize prices, export subsidies and regulation of imports via quotas and tariffs. The actual use of the various schemes, support levels and administrative arrangements varied widely among the member states, however. For instance, France had a range of single marketing agencies that bought agricultural products at governmentfixed prices and administered price supports and state purchases. Belgium left support schemes to a single Agricultural Fund whose task was to administer credits and subsidies in support of a system of target prices. In Germany, a set of import and stabilization boards regulated market supply within agriculture (PEP, 1958, pp. 9–13; 1959, pp. 3–18). Merging these separate national systems of agricultural support into a single supranational policy was no small challenge. Finally, agriculture represented one of the best organized economic sectors in all the member states. Agricultural interest groups had achieved stable relationships with government agencies and welldeveloped lines of access to political power in all six countries. Government representatives negotiating the supranational policy were thus subject to intense pressure from producer groups intent on protecting their national prerogatives (PEP, 1961, pp. 159–65; Lindberg, 1963, pp. 225–32, 261–6). In sum, the stakes were huge. Despite agreement on the benefits of coordinating policies, the distributional consequences of different solutions were enormous. It is no surprise that finding the solution involved tough intergovernmental negotiations. The story of the difficult birth of the Common Agricultural Policy has been told elsewhere;1 here it suffices to note that it entailed a common organization of
The Origins of Comitology 57
the agricultural markets of the member states based on the following concepts (introduced to varying degrees in different product areas): • A target price system on the Community market • Community purchases to secure the target prices • Levies on imports to the Community area to bridge the gap between the EEC and world market prices • Export subsidies to Community producers exporting to the world market. The organization of the daily administration of this policy regime was not unimportant. Administration is seldom completely neutral, but compared with the substantial issues at stake, the distributional consequences of alternative administrative arrangements were minor. The decision on administration approximated a pure coordination problem that could be solved by a focal point. The remainder of the chapter investigates whether the origins of comitology can be explained in this way, but first a look at the methods and data.2
Methods and data To study institutional origins is to conduct an investigation of events that transpired in a particular period and setting. The analysis is necessarily more ideographic than nomothetic. However, the following analysis is carefully designed to be of more general value. First, the analysis is a narrative, but an analytic one (Bates et al., 1998). It pays close attention to the specifics of time, sequence and context, but is based on explicit lines of deductive reasoning. I seek to capture the essence of the origins of comitology by modelling the situation as a coordination game solved by a focal point. If confirmed, this means that while the specific game played in the early 1960s is not portable, certain elements of it may be. I return to this question in the conclusion. Second, the analysis is based on a careful selection of cases. When studying the spread of comitology, I move outside the realms of agriculture. If the original choice of comitology did indeed function as a focal point for later choices, this is more likely to be the case for the various product areas that were to be covered by the Common Agricultural Policy during the 1960s – cereals, pork, beef, dairy products, poultry, eggs, vegetables, oils, wines and so on – and less likely to be the case for entirely different areas with different actors. In order to conduct a strong test of
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hypothesis 3, I choose the latter option and focus on development aid to Africa and the common customs union. The analysis seeks to uncover the sequence of events and the motivations and arguments of the actors. It is based on documentary data occupying a middle ground between first and secondary sources. I rely on three types of official documentary sources – the legal texts in the EU’s Official Journal, the Commission’s monthly Bulletin3 and the daily news coverage of EU affairs by the Brussels-based news agency Agence Europe, which publishes 5–15 pages of EU news every day. Over the eight–nine years in the 1960s analysed, this amounts to more than 20,000 pages of detailed coverage of the EU’s daily affairs.
The creation of comitology in the agricultural area The Rome Treaty gave the Commission two years – until the end of 1959 – to propose a Common Agricultural Policy for the six member states (Lindberg, 1963, pp. 219–83). According to the treaty, the common organization of agricultural markets within the Community could take one of three forms depending on the specific product concerned: • A new market organization at the European level • Compulsory coordination of the member states’ own national market organizations • Common rules of competition Assuming that the Commission wanted to maximize its control, it must have preferred the first solution. At the same time, the Commission knew that agriculture was an area of national concern and the member states were therefore more likely to favour the second or third solution. Somehow a balance had to be struck between these positions, and the Commission had the privilege of being the first mover. The Commission’s proposal came in three main rounds. The first in November 1959 was a preliminary draft proposal presented somewhat prematurely to respect the treaty’s two-year deadline. The second proposal in June 1960 was the Commission’s final draft proposal. One year later, in the summer of 1961, the Commission presented a formalized proposal, a set of draft regulations. These were decided upon when the Council reached its final compromise in January 1962. In the first and second round (November 1959–June 1960), the Commission presented its main proposal. The treaty’s first and most radical
The Origins of Comitology 59
possibility – new market organizations at the European level – was proposed for cereals, dairy products and sugar. The reason was that in these areas the member states’ own policies differed the most which, according to the Commission, made a mere coordination of national systems impossible. The second possibility was proposed for beef, veal, pork, poultry and eggs; and the third for fruit, vegetables and wine. New market organizations at the European level also meant supranational administration. The Commission originally proposed a small set of so-called European offices for cereals, dairy products and sugar, respectively. But in the June 1960 proposal European offices were also proposed for beef, veal, pork, poultry and eggs, although with less extensive functions. These offices would all be supranational administrative entities under the Commission, financed by the agricultural import levies. They would administer the systems of target and intervention prices, make support purchases on the internal market and provide external protection by means of variable levies and import licences. According to the Commission’s proposal, the offices would be assisted by product-specific consultative committees. In the November 1959, proposal the Commission suggested creating a committee with equal representation from the Commission, the member states, the agricultural producers, industry, trade and the agricultural workers. Initially the committee was only suggested in the sugar area, but in June 1960 this proposal was adjusted. First, the Commission expanded the proposal to include consultative committees for all main products. Second, the Commission now envisaged two types of advisory committees: consultative committees representing private agricultural interests and so-called directors’ committees consisting of directors of the national bodies responsible for the various product markets. The latter were the first steps on the path to the comitology system (EEC-Commission, 1959; 1960, section 229–59; 1961a, pp. 126–38; EEC-Bulletin, 5/1960, pp. 38–46; PEP, 1961). At this stage, the member states did not pay much attention to the Commission’s idea of directors’ committees. Their prime concern was the policy contents of the Common Agricultural Policy, not least the price policies. For instance, German agricultural prices were the highest among the six member states and, not surprisingly, German farmers and the German government were against the idea of a common – and lower – price level (PEP, 1961, pp. 159–65). But administrative worries were soon aired. France made it clear that, while generally positive towards the Common Agricultural Policy, it was sceptical about its institutional aspects. It accepted that European market organizations
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might be necessary, but wanted the Council to be in control. Germany was outright hostile and rejected the idea of supranational bodies. Belgium, Luxembourg and Italy were also sceptical. Even the Netherlands, the warmest supporter of the Common Agricultural Policy and supranational institutions, was initially sceptical (Agence Europe, 10 Oct. 1960, pp. 2–3). To properly deal with the Commission’s Common Agricultural Policy proposal, the member states created the Special Committee on Agriculture to prepare the Council’s decisions. Its work began in September 1960, and for the next 18 months it would be the member states’ central arena for deciding the Common Agricultural Policy. However, negotiations soon proved to be very difficult. Frustrated at the lack of progress, the Commission tried to push the Common Agricultural Policy project forward. In November 1960, it challenged the member states to take a stand on the institutional aspects of the Common Agricultural Policy, especially the proposed directors’ committees. This got a ‘fairly cool reception’ from the Special Committee on Agriculture, which found it ‘far too early’ to raise this question (Agence Europe, 26 Nov. 1960, p. 2; see also 29 Nov. 1960, p. 1; 1 Dec. 1960, p. 2; 7 Dec. 1960, p. 2; EEC-Bulletin, 10/1960, pp. 47–8). The member states were clearly not yet ready to discuss the Common Agricultural Policy’s precise administrative set-up. In the spring of 1961 the Commission then worked hard to turn its general Common Agricultural Policy proposal into a set of concrete draft rules – regulations, directives and recommendations (EEC-Commission, 1962, pp. 142–3; EEC-Bulletin, 2/1961, pp. 31–2; 3/1961, pp. 41–3; 4/1961, pp. 46–7; 5/1961, p. 38). During this process, the member states accepted the idea of common European market organizations, and not merely a coordination of national market organizations (Agence Europe, 6 April 1961, p. 4, 7 April 1961, pp. 2–3). The Commission then directed its efforts to policy substance. In the following months it discussed substantial matters such as the agricultural price system and the exact nature of the levy and export subsidy system with member states’ representatives. These were thorny issues and no agreement was reached before the draft regulations had to be presented (Agence Europe, 1 July 1961, pp. 3–4; 5 Oct. 1961, p. 4; 9 Oct. 1961, pp. 3–4; 10 Oct. 1961, pp. 2–3; 24 Oct. 1962, pp. 3–4; 31 Oct. 1961, pp. 3–4; 22 Nov. 1961, p. 5). In the summer of 1961, the Commission then presented draft regulations for grain, pork, eggs, poultry, wine, fruit and vegetables to the Council. A few months later proposals for common policies (but not
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concrete draft regulations) in the markets for rice, oils and fats followed. The Commission still suggested advisory directors’ committees, the forerunners of comitology, in the various product markets, but it was a consultative system without any legal foundation. The concrete draft regulations contained no provisions specifying its exact nature; only that consultation somehow had to take place (see e.g. EEC-Commission, 1961b, Article 5). Similar non-binding provisions were announced in the rice, fats and oils markets (Agence Europe, 2 Aug. 1961, p. 3; EEC-Commission, 1961c). In the Council and its Special Committee on Agriculture, matters did not really move forward until November 1961 when Germany showed willingness to compromise (Agence Europe, 30 Nov. 1961, p. 2) and the member states could finally discuss national control of the supranational administration of the Common Agricultural Policy. France presented a concrete proposal. Although realizing that this would introduce organs not provided for in the Rome Treaty, France suggested that the powers the member states had to give up be delegated not to the Commission, but to specially appointed committees composed of representatives of the Commission and the member states and equipped with their own administrative secretariats. The French proposal was a new version of the Commission’s proposal of directors’ committees. The proposal was discussed by the Council’s Special Committee for Agriculture. Most member states were in favour of some system of control by committees, but opinions diverged on how these committees should make decisions. France, Belgium and Italy favoured qualified majority voting. Germany, sceptical as usual, preferred unanimity. The Netherlands was against the whole idea and ‘concerned that the Commission should be handing over part of its responsibilities to intergovernmental organisations, and consider that this might be a dangerous precedent for the common policy in all sectors of the Community’s economic life’ (Agence Europe, 30 Nov. 1961, p. 3). No agreement was reached in the Special Committee. The French proposal was then discussed in the Council in December 1961. Working now under intense time pressure since failure to agree on the Common Agricultural Policy before the new year would prevent the Rome Treaty from passing on to the second stage, most member states approved. The Netherlands was still against and wanted ‘the Commission to be the sole body to take the day-to-day decisions necessary for the application of the common policy’ (Agence Europe, 13 Dec. 1961, p. 2; see also Agence Europe, 14 Dec. 1961, p. 1). Before Christmas, the Council agreed in principle on the establishment of the committees
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proposed by France, but disagreement about the committees’ decision method continued – Germany favoured unanimity, the other member states some kind of majority voting (Agence Europe, 20 Dec. 1961, p. 2). On 18 December 1961, Commission President Walter Hallstein made a compromise proposal to the Council: For day-to-day decisions necessary to the functioning of common market organisations, the Commission informs the administrative committees of its intentions. If the latter do not approve of these, or do not take a decision within a given period, the decisions of the Commission are put into force. If the committees decide by a qualified majority of 12 votes against the EEC Commission’s draft decisions, the latter can refer to the Council of Ministers, which has one month in which to arbitrate. It decides by a qualified majority on the Commission’s draft decisions. If the Council does not take a decision within the prescribed period, the EEC Commission’s decisions are applied without modification. (Agence Europe, 22 Dec. 1961, p. 2) Note that this proposal modified the Commission’s original proposal of directors’ committees in one respect only: their formal competence. They were no longer merely advisory, but would have real decision-making power. However, Hallstein’s proposal made independent secretariats for the committees superfluous. Hallstein wanted the Commission to have this function. Although the Netherlands was still against and wanted the committees to have a purely advisory function, it is clear in hindsight that Hallstein’s proposal was the decisive compromise. Comitology was born. The Dutch reservations were withdrawn between Christmas and New Year (Agence Europe, 2 Jan. 1962, p. 4). This did not mean that the Common Agricultural Policy was enacted. Disagreement on the policy contents continued and was not settled until 14 January 1962. But the decision to create the comitology system was taken. The committees were soon officially called ‘management committees’ instead of ‘directors’ committees’ (as in the Commission’s original proposal) or ‘administrative committees’ (as in the French proposal). Establishing committees with formal powers may seem like a radical departure from the Commission’s original proposal of consultative directors’ committees. Certainly that is how it was perceived at the time. For instance, the European Parliament (1962), in a resolution that would become typical of future inter-institutional negotiations on the comitology system, protested vigorously and denounced the Council’s
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decision which ‘would curtail the functions of the executive Commission’ and ‘would rob the Commission of the powers it holds in conformity with the spirit of the Treaty’. However, given that the member states’ control problem could be solved in various ways, it is striking how close the end result was to the Commission’s original proposal. Parliamentary control of delegated legislation made by the executive is a problem all member states knew from their national systems, but this is not where the idea of the comitology system came from. Few national systems have any specific control instruments of delegated legislation (although parliamentary committees may have oversight responsibilities). At the national level controlling delegated legislation is considered part of the general problem of parliamentary control of the government. This means that it relies on general parliamentary control instruments such as the ministerial responsibility doctrine, parliamentary questions, committee investigations, funding, audit reports, ombudsman systems and so on (Peters, 1995, pp. 289–337). None of these well-known institutional solutions, or for that matter other models, were ever discussed by the member states. Since the EU is not a parliamentary system, but a type of separation-of-powers system, it might have been relevant to build on institutional solutions found in these systems. For example, Bignami (1999; see also Hix, 2000) argues that important lessons on how to control delegated decision-making can be learnt from the federal system in the USA, in particular the provisions in the US Administrative Procedure Act from 1946 on notice, comment and judicial review. However, there is no record that the US experience was ever taken into account in the decision to establish the agricultural management committees. The member states focused on a solution unknown from their own national systems and other systems. The reason is that this idea was presented to them by an external actor: the Commission. The effect was that the complex institutional question was reduced to one of more or less comitology. To conclude this section, I return to hypothesis 1 and 2. The first hypothesis held that the member states had divergent preferences about the Common Agricultural Policy’s administration. The above historical account makes this hypothesis difficult to refute. Preferences varied from Germany’s hostility to the Netherlands’ support. The second hypothesis held that the Commission’s proposal for an administrative set-up for the Common Agricultural Policy represented a solution on which intergovernmental bargaining converged. This
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hypothesis is also difficult to refute. Initially the member states were against the Commission’s suggested directors’ committees, but at the same time they found it difficult to propose something else. Instead of debating a range of alternative institutional solutions to their control problem – for example, well-known solutions to similar problems in their own national systems – the member states discussed various degrees of comitology. The end result was an administrative system strikingly close to the Commission’s original proposal. It is also striking how quickly the solution was found. The negotiations on the Common Agricultural Policy lasted more than two years, November 1959–January 1962, but as the historical account makes clear, most of this time was spent negotiating the difficult policy contents of the Common Agricultural Policy. Negotiations on its administration did not really start until November 1961; it was settled in less than two months. In short, it seems that the Commission succeeded in constructing a focal point for the negotiations on the Common Agricultural Policy’s administration.
The spread of comitology to other areas Committees with monitoring powers comparable to the agricultural management committees were established in other policy areas during the 1960s (Bertram, 1967–68, p. 249; Bergström, 2005, pp. 78–88). Was this due to the precedent of the agricultural management committees in 1961–62? This is the third and final hypothesis to be investigated. If the management committees did indeed function as a focal point in this process, we must look for references to them in negotiations leading to similar structures in other areas. A first, but powerful hint that this might be the case is found in statements made by the French government during the Community’s ‘empty-chair crisis’ in 1965–66. The crisis was not solved until January 1966 when extraordinary meetings were held in Luxembourg to discuss a wide range of institutional aspects of the Community, including delegation of implementing powers to the Commission. France, more worried than ever about losing national control, reminded the other five member states of the following: In certain cases the Commission can obtain authority from the Council to put into effect the rule which the latter lays down. This delegation of powers must not imply that the tasks entrusted to the Commission will then be outside the purview of the Council. True, in certain sectors such as agriculture, the Council can intervene at executive
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level through its representatives on the Management Committees. However, . . . the Commission is endeavouring to replace the Management Committees by simple advisory committees. (French foreign minister Couve de Murville, 1966; emphasis added) This statement, made during the most profound crisis the Community had yet experienced, is powerful evidence that the agricultural management committees established four years earlier had left a lasting impression as a possible solution to the general dilemma of national control and supranational administration. In agriculture, management committees were soon used whenever the member states wanted to monitor the Commission’s rule-making powers. In a reply to a question from the European Parliament in 1968 the Commission reported that nine management committees had been established covering the areas of cereal, pork, beef and veal, dairy products, poultry and eggs, fruit and vegetables, oils and fats, wines and sugar. Their meeting frequency varied; the most active, the management committee for cereals, met 53 times from March 1967 to April 1968 (Agence Europe, 25 June 1968, p. 7). Management committees were soon used in other agricultural areas, such as financing, information and research (EEC-Bulletin, 11/1965, p. 21; Bertram, 1967–68, p. 249). What about other policy areas? In the following paragraphs I take a closer look at development aid to Africa and the customs area where the member states soon needed to delegate rule-making powers to the Commission as well, but were sceptical about losing national control.
Development aid to Africa The Rome Treaty obligated the Community to give associated status, including favourable trade conditions and development aid, to a number of overseas countries and territories with special, for example colonial, relations with the member states. The treaty provision was implemented in a five-year convention associating a number of African states with the Community and in the creation of the European Development Fund, which financed development projects in the associated states. Since then, the convention has been renewed every five years: the Yaoundé Conventions (1964–75), the Lomé Conventions (1975–2000) and the Cotonou Agreement (2000–). The first renewal would be negotiated in 1962. The Community envisaged a considerable expansion of development aid and a firmer institutional foundation of the convention. The question soon arose
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of how to reconcile national control and supranational administration of the increased development aid. Under the first convention, projects to be financed by the European Development Fund were proposed by the Commission and approved by the Council. Increasing the amounts available for aid meant a rapidly growing number of projects to approve. In order to reduce its workload, the Council decided that further powers had to be delegated to the Commission. To study the problem, the member states established a working group of national experts under the Committee of Permanent Representatives (Coreper). In September 1962, the group suggested that the Commission remain responsible for proposing projects to be financed by the European Development Fund, but that an approval system similar to the management committees in the agricultural area should be established. In a reaction that would become typical for future inter-institutional negotiations about the comitology system the Commission vehemently opposed this proposal: This procedure is not at all to the Commission’s tastes. . . . it takes away from the Commission part of the powers which it has under the present association regime. . . . the national experts’ plan alters the relationships between the Commission and the Council, for it sets between them a body to which the Council will, in a certain sense, delegate part of its powers. But the Commission does not recognise any partner other than the Council, and believes that the proposed procedure would threaten the institutional balance set up by the Treaty. (Agence Europe, 27 Sept. 1962, p. 4; see also 22 Oct. 1962, p. 2) But the Council liked its experts’ proposal, and it took care to rectify a point which had proven unclear in the daily workings of the agricultural management committees: the committees, established only a few months earlier, gave their opinion on the Commission’s draft proposals by qualified majority. However, if the committees voted against a Commission proposal, but without a majority large enough to constitute a qualified majority, the implications were unclear. Could the Commission implement its draft rule since the committee had not given an opinion, or should the Council intervene? This problem, which had already occurred in several committees, was discussed during the summer of 1962, but any firm conclusions were not reached. The Commission maintained that it was legally entitled to implement its proposed measures if no qualified majority was raised against them, but also said that in practice it would be flexible (see Agence Europe, 19 July 1962, p. 3; 24 July 1962, p. 1; 27 July 1962, p. 4). The Council
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wanted no confusion in development aid. If the new committee did not approve the Commission’s proposals by a qualified majority, the Commission had to withdraw the proposals or seek arbitration by the Council. Only in the case of a formal approval by a qualified majority was the Commission to implement its proposal. The issue was hotly debated between the Council and the Commission during the autumn and winter of 1962, but in December 1962 the Commission gave in and accepted the strengthened version of the procedures used by the agricultural management committees (Agence Europe, 27 Nov. 1962, p. 2; 17 Dec. 1962, pp. 5–6; 18 Dec. 1962, pp. 1–2). The remaining obstacles to the renewal of the convention were cleared away in the spring of 1963, and at the Council’s 100th session on 1–2 April 1963 all issues were declared settled (EEC-Bulletin, 4/1963, pp. 53–6). The new procedure for approving development projects was an internal agreement between the six member states (Agence Europe, 6 April 1963, pp. 2–3) and not a formal part of the convention, which was finally signed in Yaoundé, Cameroon in July 1963. The internal agreement spelled out that the Commission had to withdraw its proposal or contact the Council not only if a qualified majority were raised against it in the new committee, but also if the committee failed to approve the proposal by a qualified majority (Council of Ministers, 1964, Article 11). With these rules, the committee – soon to be known as the ‘EDF committee’ because it approved financing by the European Development Fund – was the first example of what was later known as a regulatory committee.
The common customs union According to the Rome Treaty, a customs union was to be gradually established between the member states over 12 years, abolishing all national customs duties and establishing a common external tariff in relation to third countries. Although this process went far quicker than expected and the customs union was established already on 1 July 1968, one and a half years earlier than the deadline specified by the treaty, the creation of a common customs regime represented quite a challenge. The problem was twofold. First, the customs union did not entail the creation of a common European customs service as the common rules would be administered by the existing national customs services. Second, the member states already had national rules on a host of common technical issues, such as rules on classification of goods, storage of imported goods, valuation of goods, transit rules, rules on duty-free areas, duty-free entry rules, granting of customs exemptions, systems
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of customs payment, rules on formulas and customs documents, collections of statistics and trade recordings, rules on the reexportation of imported goods, and many other issues. In the absence of common rules and a uniform administration, third countries would have an incentive to export to the member state with the most lenient rules. This would lead to distortions of trade and customs revenue. In short, the creation of a customs union in reality meant much more than the abolishment of national customs duties and the establishment of a common external tariff. It also meant the harmonization of customs rules and administrative practice. It was a massive task. The Council would not be able to set all rules and obviously some rule-making competence had to be delegated to the Commission. The problem of national control and supranational administration popped up again. The problem was particularly pressing in two areas. First, a common definition of the origin of goods had to be established. Since tariffs, quotas, exchange controls, embargoes, retaliatory duties and so on differ according to country of origin, a precise and common determination of the origin of imported goods is necessary for any customs regime. However, there was no agreed upon international definition and all member states used different definitions. The Commission proposed common rules in December 1964 (EEC-Commission, 1965a, b). Second, common rules on the valuation of goods for customs purposes were necessary. Again, if goods were not valuated in similar manners in all member states, third countries would have an incentive to export to the member state with the most lenient rules because a lower value would mean a lower customs duty under the common customs tariff. Although all the member states had signed the international Brussels Convention from 1950 on the valuation of goods, common rules and practice were not ensured. The convention contained optional clauses which were implemented in different manners in the six member states. In addition, the national courts in the member states interpreted the Brussels Convention in different ways. The Commission proposed common rules in November 1967 (Commission, 1968). Both proposals entailed delegation of implementing powers to the Commission to specify more detailed rules. To assist it, the Commission proposed that an Origin of Goods Committee and a Valuation Committee be established. They were to be composed of member state representatives and to have an advisory function. The member states did not seriously consider the Commission’s proposals until the spring of 1968. This created some time pressure because by then the member states had already agreed to establish the customs
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union and to harmonize customs rules by 1 July 1968 (see EEC-Bulletin, 7/1966, p. 12; 9–10/1967, pp. 25–9). The Commission was frustrated (see Rey, 1968, pp. 9–10), but by May 1968 things were still unsettled, for example the powers of the two committees to assist the Commission in the definition of origin and valuation of goods (Agence Europe, 6 May 1968, pp. 4–5). But at the Council meeting on 30–31 May 1968 a decision was reached and soon formalized into regulations (Agence Europe, 30 May 1968, pp. 8–9; EC-Bulletin, 7/1968, pp. 12, 46; Council of Ministers, 1968a, Articles 12–14; 1968b, Articles 15–17). Reluctant to delegate powers to the Commission, the member states decided to give the committees a status comparable to that of the agricultural management committees, but with stronger powers. Like the management committees, the two customs committees would approve Commission proposals by qualified majority. However, unlike the agricultural management committees, but like the European Development Fund committee, the Commission would only be able to implement its proposal in case of a formal approval by a qualified majority. Failing this, the Commission had to withdraw its proposals or seek arbitration by the Council. Like the European Development Fund committee, the customs committees were thus examples of what was later known as regulatory committees. However, unlike the European Development Fund committee, a further procedural clause was decided, namely that if the Council had not decided on a proposal within three months, the Commission could put the proposal into force. This was an example of a procedure soon to be known as the ‘safety net’ (‘filet’). The inspiration from the agricultural management committees was evident to everyone. As noted by Agence Europe (30 May 1968, p. 9): Once again the definition of procedures involves replying to the problems of . . . how responsibility is divided between the European Commission and the Committees made up of representatives of the national administrations. . . . Although in a different form these are the same problems as those concerning the Management Committees for agricultural products.
The spread of comitology to other areas: Summing up the evidence The third hypothesis stated that the original choice of administrative model for the common agricultural policy represented a solution on which intergovernmental bargaining converged in other policy areas
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in which supranational administration and national control had to be reconciled. In development aid to Africa and the customs union the member states chose institutional solutions that were strikingly close to the agricultural management committees, and they argued for this choice in terms of differences and similarities to the management committees. Alternative institutional solutions, for example solutions known from the member states’ national systems, were never discussed. In short, it seems that the agricultural management committees functioned as a focal point in negotiations on similar problems in other policy areas.
Conclusion The dominant explanation of the origins of the EU comitology system is a functional one. Committees are created to enable the Council to delegate powers to the Commission without losing national control. The evidence from this chapter’s historical analysis of the introduction of the agricultural management committees in the early 1960s confirms this explanation. The system was indeed created by the Council to monitor the Commission. But although the functional explanation is correct on motives, it cannot explain why comitology was chosen among the many potential solutions to the Council’s delegation problem. The functional explanation focuses on the member states as the decisive actors. The focal point explanation focuses on the Commission. Informal agenda-setting power was delegated to the Commission, and the Commission, not the member states, proposed committees as a solution. To the member states, caught in a coordination problem, this represented an obvious solution. It was a focal point, and a powerful one. It simplified matters and reduced the complex control problem to one of more or less comitology. It functioned as a precedent not only in agriculture, but also in other policy areas. When the same problem of supranational administration and national control arose in relation to development aid to Africa and the customs area, the member states found solutions similar to the management committees and never seriously considered alternative solutions, for example well-known solutions to similar problems in their own national systems. The chapter thus offers an explanation not only of the original choice of comitology, but also of its spread to other policy areas. The chapter illustrates the value of actively investigating institutional origins and the limitations of functionalist reasoning. Functional motives may be decisive, but this should be treated as a hypothesis,
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not a premise. Investigating institutional origins enables the researcher to pay proper attention to choice. Institutional design always involves choice, but functionalist reasoning makes it difficult to explain the exact institutional choice when there are several solutions to a given functional need. The analysis is a narrative of events in a particular period and setting, but it is an analytic narrative based on deductive reasoning. The member states’ choice of the comitology system was modelled as a coordination problem solved by a constructed focal point. The analysis thus confirms the importance of focal points and informal agenda-setting for solving coordination problems. The analysis also confirms a central point from the delegation literature, namely that delegation to a central decisionmaker may solve collective action problems among legislators.
5 What is at Stake? A Case Study of the 2006 Comitology Reform
It is no secret that the EU institutions do not agree on the design of the comitology system. In 2006, when an inter-institutional compromise was about to be made on a revision of the 1999 comitology decision, Richard Corbett, the European Parliament’s comitology negotiator, gave his fellow Parliament members this explanation of ‘the problem’: It may be recalled that the problem was created with the development in the 1960s and the 1970s of a system for delegating implementing powers to the Commission whereby the latter is empowered to act in conjunction with a committee of national representatives. . . . such committees could block the Commission’s decision on an implementing measure . . . Parliament criticized the fact that only a committee, and not the Parliament, had such a right . . . Parliament took the view that codecision acts . . . implied that they should both be involved in defining the procedure for exercising delegated powers and that they should have equal rights regarding retrieval or callback. Council, however, argued . . . for Council (alone) to define the system for implementing powers. (European Parliament, 2006a, p. 6) It is not only participants in the EU decision-making process who talk about conflicts over the comitology system, but outside observers are also struck by the inter-institutional rivalry about the system (Franchino, 2000a; Pollack, 2003a, pp. 114–46; Bergström, 2005, pp. 285–308; Bergström et al., 2007; Bradley, 2008). Yet the question remains why there is so much conflict. What exactly is at stake? This chapter addresses this question and is the first of three chapters to investigate the driving forces of the comitology system. 72
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In Chapter 3, I made the argument that the design of the comitology system is a game of control positions. No one in the EU system knows for certain how delegated powers to the Commission are going to be used or what the future precisely entails. But everybody knows that there will be decisions to make down the line. When specifying the details of the various comitology procedures, the EU institutions cannot precisely specify the contents of these decisions, but they can make sure that they will be in a position to influence them. This is the politics of structural choice (Moe, 1990a, b) or ‘deck stacking’ (McCubbins et al., 1987, 1989). It means that the individual EU legislators will press for comitology rules that ensure efficient institutional control positions for themselves and inefficient control positions for their opponents. This again means that the legislators will have different preferences over the comitology rules. Based on this argument the following hypotheses were developed: Hypothesis 4: The Council favours strict comitology procedures. Hypothesis 5: The Commission favours permissive or no comitology procedures. Hypothesis 6: The European Parliament favours: a. narrowing delegation to technical matters b. permissive or no comitology procedures, or alternatively c. access to the comitology system This chapter provides the first of two investigations of these hypotheses. While Chapter 6 focuses on daily legislation, this chapter focuses on the level between daily legislation and the treaty, namely the framework rules specifying a list of comitology procedures the legislators can choose from in daily legislative practice. Rules on these procedures were introduced in 1987 in the wake of the Single European Act. The background was that there were more than 30 variants of comitology procedures in operation by the 1980s. The ambition in the intergovernmental conference leading to the Single European Act was to cut down the range of procedures and establish an exhaustive list. Originally this list was to be set out in an annex to the treaty, but in the end, the decision was made to make the list by ordinary legislation using the consultation procedure (Bergström, 2005, pp. 185–92). The list was then made by the Council in its first comitology decision (Council of Ministers, 1987), which is under the treaty level, but over the level of daily legislation in the sense that the list specifies an exhaustive number of comitology procedures (Schaefer and Türk, 2007, p. 184; Türk, 2009, pp. 80–1).
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The framework rules have been changed three times since the Council’s first comitology decision in 1987. The first time was in 1999 when several variants of the basic procedures were removed. The second time was in 2006 when a new procedure was added to the list, the so-called regulatory procedure with scrutiny. The third time was in 2011 when the Council’s comitology decision was replaced by a comitology regulation made by the European Parliament and the Council in the wake of the Lisbon Treaty. The 2011 reform introduced a new examination procedure modelled on the management and regulatory procedures (Brandsma and Blom-Hansen, 2011). This chapter provides a case study of the 2006 reform of the Council’s comitology decision. This makes it possible to study the EU actors’ comitology preferences in a setting where the basic rules of the system are up for grabs. If the hypotheses are true, they should hold in this situation since it represents an obvious opportunity for all actors to improve their control positions over delegated decision-making. In other words, a reform of the Council’s comitology decision is a most likely case. If the hypotheses do not hold here, they are unlikely to hold elsewhere. The case study format not only allows an investigation of institutional preferences, it also makes it possible to put some flesh on what institutional interests and instruments mean in practice in the area of comitology.1 The chapter is organized as follows. I first explain methods and data applied to investigate the 2006 comitology reform. The empirical analysis investigates the four partially related processes that led to the reform: the Lamfalussy reform in financial regulation; the controversial use of comitology in GMOs, food safety and the environment; the failed Constitutional Treaty; and the revision of the 1999 comitology decision. The chapter concludes with a discussion of the lessons in relation to preferences, interests and instruments in the comitology area.
Methods and data The purpose of the case study is to gain an understanding of the driving forces of the development of the comitology system. Preferences, interests and instruments are identified by studying the process leading to the reform. Pressure for reform had built up over several years in two unrelated areas: regulation of financial services; and food safety and environmental issues. These pressures were first channelled into the process that led to the proposal for a Constitutional Treaty for the EU. When this proposal failed because of the referenda in the Netherlands
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and France, the pressures were channelled into the process that led to the revision of the 1999 comitology decision. Studying these four processes is an exercise in process tracing (George and Bennett, 2005, pp. 205–33) as I seek to uncover the chain of events in the four processes that led to the final outcome. The four processes do not constitute independent cases to be compared; on the contrary, the goal is to study how they are causally related to each other and to identify the preferences, interests and instruments of the actors during the process. The EU is a fertile hunting ground for the process tracer because of the considerable paper trail left behind by the decision process. There is a wealth of official EU documentary data to study how events are linked in the policy process. However, there is one exception. The deliberations of the member states in the Council of Ministers are notoriously difficult to uncover. At best, official documentary data consist of brief press releases or minutes of Council meetings. To study the negotiations and compromises in the Council I turn from EU documents to national documents in one member state, Denmark. The Danish Parliament probably has the most powerful EU committee of any member state (Kassim, 2000; Bergman et al., 2003, pp. 173–7) and it is standard operating procedure for the Danish government to inform the Parliament’s EU committee on all EU issues, including comitology issues. This information is made public on the Parliament’s website (www.ft.dk).
Process 1: The Lamfalussy reform in the area of financial regulation Despite the deadline specified by the Single European Act, the internal market for financial services – banking, insurance and investment services – was not in place by the end of 1992. Differences in national regulation proved too difficult to reconcile, but the introduction of the euro led to increased pressure for reform. In 1998, the European Council invited the Commission to produce a plan to improve the single market in financial services. One year later the plan was ready. It proposed a large number of legal initiatives, but also complained of ‘painstakingly slow’ legislation and proposed ways to ‘accelerate the legislative process for financial services’ (Commission, 1999a, pp. 14–15). To deal with this challenge the Council established a Committee of Wise Men chaired by Alexandre Lamfalussy, former president of the European Monetary Institute.
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The Lamfalussy committee proposed a two-level legislative approach to financial regulation. At the first level, regulatory framework principles were to be decided by the normal EU legislative procedure (i.e., codecision). At the second level, more detailed technical measures were to be decided through a comitology procedure involving two new committees: the EU Securities Committee and the EU Securities Regulators Committee. This approach presupposed a distinction between policy formulation and implementation, or, in the EU jargon, essential and non-essential measures. The Lamfalussy committee did little to clarify the line between the two types of legislative measures. But since the committee’s emphasis was on regulatory flexibility and fast-track legislation, a reasonable expectation was that much future regulation of financial markets would take place at level two if the committee’s proposal were adopted (Committee of Wise Men, 2001; see also Avgerinos, 2002; de Visscher et al., 2008). The Lamfalussy proposal was warmly welcomed by the Commission (2001b). The member states were also positive, but reluctant to delegate far-reaching powers to the Commission since, after the 1999 comitology decision, a qualified majority in the Council of Ministers was required to block a Commission proposal referred to it under the regulatory comitology procedure. Especially Germany was sceptical and worried that the Commission might use its newly gained powers under the 1999 decision to push through legislation opposed by a substantial minority of member states. For instance, Germany feared that the Commission might favour London over Frankfurt as a centre for securities trading (Pollack, 2003a, pp. 140–4). However, the German objections were withdrawn when the Commission reiterated its statement regarding the 1999 comitology decision that it would ‘avoid going against predominant views’ in the Council. At the 2001 Stockholm summit, the European Council endorsed the Lamfalussy proposal. The European Parliament was more sceptical. Fearing that the Lamfalussy proposal would cause financial regulation to slide from the codecision procedure into the comitology system outside the Parliament’s control, it demanded that level one regulation contained not only framework principles, but also implementation measures. Furthermore, it wanted a call-back right in case delegation did not go as expected (European Parliament, 2001). After one year of inter-institutional negotiations a compromise was reached. It did not entail a call-back right for the European Parliament, but specified, first, that a sunset clause would be inserted into all Lamfalussy legislative acts adopted at level one. This clause would limit
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delegation to four years. Second, the compromise gave the European Parliament three months to react to the Commission’s draft implementing measures. Third, the European Parliament was granted a more comprehensive supply of comitology documents than under the 1999 comitology decision. Both the European Parliament (2002, point 21) and the Commission (2002a) stressed that this compromise was temporary and only effective until the comitology system would be more thoroughly reformed by the next treaty revision, which was already set in motion by the European Council at the Laeken summit in 2001 (cf. below). The further reform pressures generated by this compromise were threefold. First, the European Parliament soon showed that the use of sunset clauses to limit delegation was meant seriously. To the annoyance of both the Council and the Commission, sunset clauses were now systematically inserted into financial directives.2 Second, the Council of Ministers’ new voting rules under the 1999 comitology decision on issues referred to it under the regulatory procedure gave pause to some member states. It was no longer easy to stop the Commission since this now required a qualified majority. Third, the Lamfalussy area illustrated the difficulties of drawing a clear line between policy formulation and implementation. It demonstrated a huge grey zone between these two concepts and thus increased the salience of the European Parliament’s weak status in the implementation arena. As a final note, it may be added that the European Parliament once again learnt that resistance in the area of comitology may pay off in terms of influence. In terms of institutional preferences, the Lamfalussy reform showed that the European Parliament is highly sceptical about the comitology system. It considers it a threat to its institutional position in the EU system, and it is willing to go to considerable lengths to defend this position. As for the member states, the reform demonstrates that they use comitology as an instrument to control the Commission. Finally, concerning the Commission the findings are mixed. It was in favour of the Lamfalussy reform including its strict comitology procedures, but they were probably accepted as a price worth paying for more delegated decision-making.
Process 2: Comitology in sensitive areas: GMOs, food safety and the environment In the areas of genetically modified organisms (GMOs), food safety and the environment, EU regulation has generated significant public debate
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and raised concern about health and environmental risks. The areas are politically sensitive in the member states; sometimes so sensitive that they prefer to opt out of the Community to avoid EU regulation. Since the control of the Commission in many of these areas rests on comitology procedures, actors in these areas are often sceptical about reforms of the comitology system that increase the autonomy of the Commission. The most prominent example of such a sensitive area is the use of GMOs in food and feed. EU regulation has been gradually expanded in order to deal with safety and legitimacy issues. In 1990, the first GMO directive introduced a uniform application procedure according to which permission to market GMOs must be sought with a competent food authority in one of the member states. This authority’s decision is then forwarded to the Commission and the food authorities in the other member states. If objections are raised, the matter is settled by the Commission acting under the regulatory comitology procedure (Skogstad, 2006). In principle, this system allows the member states to control the Commission’s approval of individual GMOs, but it presupposes that the member states are able to form an opinion by qualified majority, either in the comitology committee or in the Council. The comitology rules state that if a regulatory committee cannot form an opinion, the matter is referred to the Council. If the Council fails to form an opinion within three months, decisional power reverts to the Commission, which is free to adopt the draft rule. This deadlocked situation has often occurred. There are several examples of the Commission approving GMOs against the will of the comitology committee and the Council, but where the majority against the Commission’s proposal in these organs is not large enough to constitute a qualified majority (for a vivid example see Bradley, 1998; see also Pollack and Shaffer, 2008). This situation was unsatisfactory to a number of member states who faced strong public resistance to GMOs. Their reaction was to unilaterally defect from the EU regime: they invoked the safeguard clause in the GMO directive. An individual member state can restrict or prohibit the use or sale of a given GMO if it fears that it constitutes a risk to human health or the environment. This is meant to be a provisional measure, but in reality member states have been allowed to keep safeguard clauses in operation for years. The Commission might have used the European Court of Justice to enforce its decisions, but has refrained from doing so, presumably fearing the anti-GMO opinion in the member states (Skogstad, 2003).
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In 1999, tension grew as the 1987 comitology decision was up for renewal. The Commission wanted to simplify the existing two regulatory procedures (IIIA and IIIB) and merge them into one new procedure. According to the old IIIB procedure, the Council could block a Commission proposal by simple majority. As per the Commission’s proposal this would be replaced by qualified majority which would make it considerably more difficult to stop the Commission (Haibach, 1999). The Council was divided. But in the end, with an eye to the coming enlargement and after the Commission made an official statement that it would ‘avoid going against any predominant position’ in the Council when making proposals for implementing measures in ‘particularly sensitive sectors’ (Commission, 1999b), consensus rallied around the Commission’s proposal. However, this statement did not reassure the member states facing strong negative public opinions on GMOs, and with the negotiation of the new 1999 comitology decision they contemplated the introduction of a moratorium on the authorization and marketing of GMOs. It was formally established by a declaration by the Danish, Greek, French, Italian and Luxembourg delegations at the Council meeting of environmental ministers on 24–25 June 1999 that the moratorium would remain in force until rules ensuring labelling and traceability of GMOs were adopted. The Commission then proposed reforms that introduced three sets of regulatory changes. First, a pre-marketing safety assessment by food authorities in the member states and/or the newly created European Food Safety Authority; second, a ‘one-stop’ authorization procedure to achieve access to the internal market involving the Commission and the member states through a regulatory comitology procedure (the Standing Committee on the Food Chain and Animal Health); and, third, a labelling provision that the use of GMOs in food and feed is clearly stated on the product (Tsioumani, 2004; Buonanno, 2006). While these regulatory initiatives may have had a soothing effect on public sentiments, they brought the EU on a collision course with external trading partners, notably the United States, which wants to export genetically modified crops and claims a right to do so under the World Trade Organization (WTO) agreements (Boisson de Chazournes and Mbengue, 2004; Morgan and Goh, 2004). The member states reacted by lifting the moratorium in June 2005, when the Council refrained from blocking the Commission’s proposal to authorize the agricultural company Monsanto’s MON 863, a corn variety genetically modified to improve its resistance to insects. Lurking
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in the background was also the WTO, where the United States and other agricultural exporters had raised complaints that the EU moratorium constituted a trade barrier. WTO proceedings began in 2003 and ended, somewhat post festum, with a ruling in 2006 that the moratorium was illegal under WTO rules. However, this did not stop unilateral non-compliance by individual member states via the GMO safeguard clause. At the very same Council meeting in June 2005 that failed to block Monsanto’s GMO corn, the Council also permitted Austria, France, Luxembourg, Germany and Greece to continue their national bans of GMOs authorized prior to the moratorium. Although invoking the safeguard clause is supposed to be provisional, these national bans had by then been effective for five to eight years. GMOs represent an extreme case of the workings of comitology in sensitive areas. But it is not the only area where comitology rules fail to give member states satisfactory control of the Commission. The environmental area offers other, although less extreme, examples (Demmke, 2000; Flynn, 2000), such as the implementation of the Restriction of Hazardous Substances (RoHS) directive, which prohibits the use of hazardous chemical substances in new electrical and electronic equipment. However, the directive allows certain exemptions to this general rule, for example if the substances are used in medical equipment or if the equipment was put on the market before 1 July 2006. Exemptions are granted by the Commission acting under the regulatory comitology procedure (the Waste Committee). In several instances, the Commission has proposed exemptions which fail to obtain a qualified majority in the comitology committee, and are then referred to the Council, which also fails to master a qualified majority for or against. Decisional power then returns to the Commission, which adopts the exemption (Maxianova and Rusche, 2006) – that is, the same outcome as in the deadlocked situation of GMOs. Several member states have openly protested against this working of comitology. In 2005, five member states – Denmark, Sweden, Belgium, Finland and Portugal – sent a joint letter to the Commission complaining about the planned exemption of the ban on the use of decaBDE (a brominated flame retardant). These member states recognized that the exemption could not be blocked under the comitology procedure because a qualified majority could not be established, but they challenged the Commission’s use of the comitology procedure because, in their view, the exemption would be too far-reaching (Ministers of five EU countries and Norway, 2005).
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The five member states even challenged the Commission before the European Court of Justice (ECJ Case C-295/06). In sum, in the sensitive areas of GMOs, food safety and the environment the member states have learnt the tough lesson that the comitology system cannot effectively control the Commission in areas where they are divided and where a qualified majority can be mastered neither in the comitology committee nor in the Council. In this deadlocked situation decision-making power reverts to the Commission and despite its promise in relation to the 1999 comitology decision not to go against ‘any predominant position’ in the Council in ‘sensitive sectors’ (Commission, 1999b), the Commission has demonstrated that it is ready to use this power in practice. In terms of institutional preferences, the workings of comitology in the areas of GMOs, food safety and the environment are most revealing about the Commission and the member states. As to the Commission, we learn that, although it is not unresponsive to the member states’ wishes, it is in practice willing to step into the void created by deadlocks in the comitology system. Concerning the member states, we once again see that they regard the comitology procedures as a control mechanism, and in this area they have learnt that comitology does not always work as an effective control. A number of member states developed a strong scepticism towards any suggestions of loosening the Council’s control mechanisms or increasing the autonomy of the Commission, at least in sensitive areas.
Process 3: The European Convention and the Constitutional Treaty At the Laeken summit meeting in 2001, the member states decided to convene a European Convention to prepare the treaty revision envisaged at Nice in 2000. The Convention began its work by establishing a number of working groups. The complicated task of simplifying the EU’s instruments and procedures landed with working group IX. This group dealt, inter alia, with the distinction between legislative and executive law-making and its reform proposal was far-reaching (European Convention, 2002; see also Bergström, 2005, pp. 335–51). It advocated a three-tiered hierarchy of acts. First, legislative acts were to be laws adopted by the Council and European Parliament directly on the basis of the treaty. Second, delegated acts should be adopted by the Commission and flesh out the details of a legislative act. This
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type of act would also lay down control mechanisms for the legislators of which the working group envisaged three types: call-back rights, a period of tacit approval (the delegated act will only enter into force if the legislators have not objected within a pre-specified period) and time limitations on delegation. The working group thus did not envisage any comitology mechanism for delegated acts. Third, implementing acts were to be adopted by the Commission to implement the former two types of acts, for which the working group suggested upkeeping comitology, although it speculated that the regulatory procedure might be abolished. The proposal was radical because the most controversial matters dealt with under comitology were taken out of this system and placed under equal supervision by the Council and the European Parliament as delegated acts. The working group’s proposal was accepted almost intact by the Convention. In its final draft for a Constitutional Treaty, the three-tiered hierarchy of legal acts was codified in articles 33–36 with only few changes to the working group’s proposal. Most notably, the option of inserting time limits for delegation (sunset clauses) was removed. The Convention’s proposal had a structuring effect on the ensuing intergovernmental conference, which began in October 2003. There is no sign that the Convention’s envisaged hierarchy of legal acts and the consequences for the comitology system played any large role in the negotiations among the member states. The only indication that the issue came up at all is a declaration adopted by the intergovernmental conference which aimed at preserving the Lamfalussy system of committees in the financial area (IGC, 2004). The intergovernmental conference was brought to a close within a year with only minor changes to the Convention’s draft treaty. The new Constitutional Treaty was duly signed in Rome in October 2004 but as is well-known, the ratification process soon ran into problems. In both France and the Netherlands voters turned the new treaty down in national referenda, which put an effective stop to the treaty revision process. The failed treaty represented a victory for the European Parliament. Its long-sought equal status with the Council in delegated decision-making was almost achieved. It was given the same control mechanisms as the Council in relation to the new delegated acts, not least the call-back right it had wanted in the financial area. The reform pressures generated by the treaty revision were threefold. First, the European Parliament’s status was high on the agenda. It was not likely to give up the position and control mechanisms granted in the Constitutional Treaty. It had
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once again learnt that reforms in the comitology area can only go one way, namely towards strengthening the Parliament. The European Parliament was likely to take pains to ensure that the provisions in the Constitutional Treaty would function as a reference point in any future comitology reform process. Second and closely related, the issues of sunset clauses lived on. This control mechanism had been discarded by the Convention and the Constitutional Treaty, but given the treaty’s fate the European Parliament was free again to use them. Third and finally, the Constitutional Treaty took a new approach to the age-old distinction between politics and administration, which had also hampered the Lamfalussy negotiations. The new three-tiered hierarchy of acts represented a new drawing line, and one which left more of the grey zone within the influence of the European Parliament. In terms of institutional preferences, the process leading to the Constitutional Treaty is most revealing about the European Parliament and the Commission. For the Parliament, the process confirms once again that it is deeply concerned about its position in delegated decision-making. It therefore had no hesitations about rolling back the comitology system and replacing it with other control mechanisms that strengthened its position. As to the Commission we learn that it cares about its autonomy. It favours delegation in the EU system and a clearer separation of legislative and executive powers. These measures would, if implemented, solidify the position of the Commission.
Process 4: The revision of the 1999 comitology decision The first step towards changing the 1999 comitology decision was taken in 2001 when the Commission (2001a) presented its White Paper on European governance. The Commission argued for clarifying executive responsibility by reconsidering the comitology system. It suggested that management and regulatory committees might be abolished (which would leave only advisory committees) and that the Council and the European Parliament ought to have an equal role in the supervision of the Commission. It foresaw both a short-term solution involving a change of the 1999 comitology decision and a long-term solution involving a change of the treaty’s framework. The Commission’s next move was a proposal to amend the 1999 comitology decision (Commission, 2002b; see also Bergström, 2005, pp. 326–35). This was to be a limited reform pending the more fundamental comitology reform anticipated in the treaty revision process. Although presented as an endeavour to put the European Parliament
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and the Council on an equal footing as legislative supervisors, the proposal strengthened the Commission’s position. The idea was to create two comitology systems – a new system for matters under codecision, and another (the existing) for other matters. The new system comprised several new features. First, the regulatory procedure was to be amended to comprise two distinct phases. In the first (executive) phase the Commission would present draft rules to the committee as under the existing system. In the second (supervisory) phase the draft would be forwarded to the Council and the European Parliament. If they objected to the draft, the Commission must withdraw it, present a new legislative proposal under the codecision procedure or adopt the draft ‘possibly’ amending it according to the objections of the European Parliament and the Council (Commission, 2002b, article 5a). While this new supervisory phase put the Council and the European Parliament on the promised equal footing, it also strengthened the Commission. It was no longer bound to follow the legislators’ objections – only to ‘possibly’ take them into account. Second, the regulatory procedure would be used in relation to measures designed to ‘widely implement the essential aspects of the basic instrument’ (Commission, 2002b, article 2a). This room for application was narrower than under the 1999 decision. Given the fact that the Commission also proposed abandoning the management procedure for matters under codecision, the proposal also strengthened the Commission since it left only the advisory procedure for all remaining matters. Finally, the Commission proposed more binding rules for the legislators’ choice of comitology procedure than under the 1999 decision. This would also strengthen the Commission since the Council would then find it more difficult to insert comitology clauses wherever convenient. In the European Parliament the proposal was assigned to the Committee on Constitutional Affairs. The committee’s first report, ready in April 2003, was highly positive, but raised four objections (European Parliament, 2003a). First and most importantly, it found it unacceptable that the Commission would be entitled to adopt draft measures even in case of disagreement with the legislature. This meant that the Commission’s option to only ‘possibly’ amend drafts in case of objections from the Council or the European Parliament had to be changed. Second, the committee wanted to uphold the Parliament’s existing callback right in relation to the scope of matters falling under the advisory procedure. This right would be abandoned as a consequence of the Commission’s new ‘supervisory’ phase which only comprised the regulatory procedure. The choice between the regulatory and advisory
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procedure would, according to the Commission proposal, depend on the proposed measure having either an individual or a more general scope. As the committee observed, this distinction ‘can be subject to different interpretation’ (European Parliament, 2003a, p. 10). The problem of distinguishing between policy formulation and implementation popped up yet again. Third, the committee wanted all time limits for the Parliament to consider Commission proposals extended from one (as proposed by the Commission) to three months. Finally, the committee wanted access to more comitology documents than the Commission suggested. In sum, the committee welcomed the Commission’s proposal to give the Council and the European Parliament equal status as legislative supervisors, but it was not willing to give up anything in return. The report by the Committee on Constitutional Affairs was discussed by the European Parliament in May 2003. A representative from the Commission, Commissioner Margot Wallström, participated in the debate. She made it clear that the Commission would be willing to discuss many of the objections raised by the committee, but she was not willing to make it obligatory for the Commission to follow the objections of the Council or the Parliament to draft measures. Arguing in terms strikingly similar to those used by the Commission 40 years earlier – cited in the previous chapter – when the Council installed comitology in the area of development aid to Africa, she explained that the Parliament’s proposal would ‘tie the hands of the Commission and prevent it from exercising its responsibility as the executive’. She also reminded the assembly that ‘the Commission needs Parliament’s support in negotiating the strengthening of the European Parliament’s prerogatives with the Council’ (Wallström, 2003). Given the Commissioner’s partially positive attitude, the European Parliament sent the matter back to the Committee on Constitutional Affairs to pursue further negotiations with the Commission. Two months later the committee had a second report ready (European Parliament, 2003b). The rapporteur’s negotiations with the Commission had produced a compromise, which stipulated that in case objections were raised by the Council or the European Parliament, the Commission might adopt the measure ‘taking account’ of these objections. However, the exact meaning of this compromise was unclear. When the European Parliament voted on the report in September 2003, the rapporteur Richard Corbett (2003) explained that ‘if Parliament objects to an implementing measure adopted under comitology, then the Commission must either withdraw it, amend it or take account of Parliament’s
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objection in some other way . . . ’. He stressed that this result might not be ideal, but should be considered a provisional compromise until the draft Constitutional Treaty just completed by the European Convention would come into force. The Commission (2004) presented its interpretation of the compromise in April 2004 when it presented an amended proposal to amend the 1999 comitology decision. As promised, the Commission had accepted many of the European Parliament’s objections. But on the important question of the consequences of objections from the Parliament or the Council, the Commission’s interpretation differed somewhat from that of the Parliament’s rapporteur. The Commission maintained that it was to be entitled to adopt its draft measures without changes even in case of objections from the legislators. The only concession from the Commission was that it was to inform the legislators of its intended actions. The Commission (2004, p. 3) explained its reasons in blunt terms: ‘The Commission must be able to apply its executive responsibility autonomously and therefore cannot be bound by the legislature’s position.’ Meanwhile the member states had kept a low profile and not taken any official position on the Commission’s proposal. They stalled it in anticipation of, first, the European Convention’s treaty proposal and, later, the ratification of the Constitutional Treaty. However, when the Constitutional Treaty failed in France and the Netherlands in 2005, the European Parliament put pressure on the Council to open negotiations. This was done by a range of well-known means (cf. Bradley, 1997). First, by using its budgetary authority it withheld funding of comitology committees. After the first quarter of 2006 the Parliament’s budget committee only released means for committee meetings gradually, awaiting progress in the comitology negotiations (Danish Foreign Ministry, 2006, p. 56; European Parliament, 2006a, p. 8). Second, it continued its practice of inserting sunset clauses to limit delegation in new legislative acts. But it extended this technique to encompass threats of not renewing existing sunset clauses that were about to expire (Danish Foreign Ministry, 2006, p. 55). Third, it blocked a number of internal market directives underway in the legislative process (Danish Foreign Ministry, 2005, p. 7; Schusterschitz and Kotz, 2007, p. 76). The tactics worked. In the autumn of 2005, the Council finally opened negotiations with the European Parliament. According to information from the Danish government, there was ‘widespread scepticism about weakening the Council’s control mechanisms’ among the member states, but ‘a certain understanding for increasing the European Parliament’s control position’ (Danish Foreign Ministry, 2005, p. 7). The
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Council consequently decided to disregard the Commission’s proposal and aim for a limited reform that only comprised the elements necessary for pleasing the Parliament. The final compromise consisted of an amended comitology decision (Council of Ministers, 2006b), a joint inter-institutional statement on the new decision – the so-called ceasefire declaration (European Parliament, Council and Commission, 2006) – and a set of statements from the Commission (2006a). The compromise included several novel features. First, it introduced the new regulatory procedure with scrutiny, which adds a fourth procedure to the existing advisory, management and regulatory procedures. The new procedure applies only to acts adopted under the codecision procedure and consists of an executive and a supervisory phase. In the executive phase the Commission submits its draft measure to the relevant committee, which states its opinion as usual. In the following supervisory phase the draft measure is submitted to the Council and the European Parliament, irrespective of the committee’s opinion. If the committee’s opinion is positive, both the European Parliament and the Council can object to the draft, in which case the Commission must abandon it. If the committee gives a negative or no opinion, the draft is submitted to the Council for decision and simultaneously sent to the Parliament for information. If the Council objects to the draft within two months, the Commission must abandon it. If the Council does not object, the Parliament then has four months to oppose the draft in which case the Commission must abandon it. This means that the Council and the Parliament can both revoke draft measures, although they are not on a completely equal footing. In any case, the Parliament finally gained the call-back right it had demanded for years, a result it considered an ‘almost revolutionary achievement’ (European Parliament, 2006b, p. 8). Second, the compromise took issue with the grey zone between policy formulation and implementation, or legislative and executive matters. The new procedure was to be applied to matters closer to the legislative end of this spectrum. The new comitology decision specifies that ‘measures of general scope’ must be subjected to the new procedure. This adds a compulsory element to the choice of procedure that did not exist under the 1999 decision, which only specified criteria that should ‘guide’ the choice of comitology procedure. Third, the European Parliament’s new call-back right came at a price. In the joint inter-institutional statement it agreed to end the use of sunset clauses, which had become a major irritant to both the Council and the Commission.
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Fourth, the introduction of the new procedure naturally raised questions about its possible retrospective application to existing legislative acts. Here, the compromise was fine-tuned. The joint inter-institutional statement specified 25 existing directives and regulations which should be subjected to the new procedure. The list included a number of acts in the financial area (Lamfalussy acts) and the GMO area discussed above. Finally, the Commission (2006a) promised to improve the flow of information to the European Parliament, especially in the financial area. This was a compromise on the Parliament’s wish to have observers present at the meetings of comitology committees. This wish, reported by both Schusterschitz and Kotz (2007, p. 85) from the Austrian Council Presidency and Szapiro (2006, p. 580) from the Commission, was flatly refused by the Council and the Commission. In terms of institutional preferences, the process leading to the revision of the 1999 comitology decision is revealing about all EU actors. Concerning the Commission, we once again learn that it works to strengthen its autonomy. Quite ingeniously, its initial proposal tried to strengthen both its own and the European Parliament’s position. As to the European Parliament, the process confirms that it considers comitology a threat to its institutional position in the EU system, and that it is willing to go to considerable lengths to defend and strengthen its position. Finally, the member states once again consider comitology a control instrument and are reluctant to relax or share control.
Lessons of the case study: Institutional preferences, interests and instruments revealed The 2006 reform of the comitology system is the result of developments in four areas. First, in the area of financial services the Lamfalussy reform and the European Parliament’s subsequent use of sunset clauses generated a strong pressure for increased legislative supervision by the European Parliament. Second, in the sensitive areas of GMOs, food safety and the environment the member states discovered that comitology does not always constrain the Commission. This generated widespread aversion to relaxing control. Third, the European Convention’s proposal for a Constitutional Treaty strengthened the position of the European Parliament in the comitology area. At the ensuing intergovernmental conference, comitology was drowned by other issues, and the member states accepted the Convention’s proposal. Although the ratification of the Constitutional Treaty failed, this set a powerful reference point for the negotiations in the fourth process, the negotiations
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on amending the 1999 comitology decision. In sum, the 2006 reform can be considered the result of a game played in several arenas over a number of years. To conclude the case study, I return to the three hypotheses on comitology preferences developed in Chapter 3 and restated in the beginning of this chapter. The first hypothesis held that the Council favours strict comitology procedures, and the case study firmly supports this hypothesis. In all four processes the Council was sceptical about loosening control. In the Lamfalussy reform it worried about delegating far-reaching powers without effective control by comitology procedures. In the sensitive areas of GMO, food safety and the environment it developed a strong scepticism towards any proposal about loosening comitology control. In the process leading to the Constitutional Treaty the evidence is less clear, but the intergovernmental conference adopted a declaration on the Lamfalussy committees which indicates that strict comitology was a concern. Finally, when negotiating the revision of the 1999 comitology decision the Council refused to discuss proposals to reduce the strictness of comitology procedures. The second hypothesis held that the Commission favours permissive or no comitology procedures. Despite somewhat mixed evidence, the case study cannot refute this hypothesis. The clearest supporting evidence is found in the fourth process. In its proposal for a revised 1999 comitology decision the Commission argued for much broader use of the advisory procedure. But the case study also shows that the Commission sometimes accepts strict comitology procedures as a price for increased delegation. The Lamfalussy reform and its regulatory committees were welcomed by the Commission because it entailed more delegation. There is thus also evidence of pragmatism on the Commission’s behalf. The third hypothesis held that the European Parliament favours: (a) narrowing delegation to technical matters; (b) permissive or no comitology procedures; or, (c) access to the comitology system. This hypothesis is also difficult to refute, but the evidence is clearest on points (a) and (c). In the Lamfalussy reform the Parliament advocated less delegation than wanted by the Council and the Commission. In the processes leading to the Constitutional Treaty and the revised 1999 comitology decision the Parliament argued strongly for increased access to the comitology system. In sum, the chapter provides relatively strong evidence in favour of the three hypotheses on the EU institutions’ comitology preferences. But this evidential support should not be exaggerated because, as argued
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in the introduction to the chapter, the 2006 comitology reform represents a most likely case for investigating the hypotheses. The next chapter examines the hypotheses in a less favourable setting. Before turning to that analysis, however, the full benefit of the case study format should be derived. What does the study of the 2006 comitology reform reveal about interests, instruments and institutional preferences in the comitology area in a broader sense? First, in terms of institutional interests, the case study makes it possible to flesh out in some detail what this concept means in practice. Table 5.1 provides a list of contested institutional features in the 2006 reform. It shows that the actors’ positions in the comitology system depend on a number
Table 5.1 What is at stake? Manifestations of institutional interests in the 2006 reform of the comitology system The following institutional features of the comitology system were contested in the 2006 reform (examples in parentheses): 1.
2.
3.
4.
5.
The treaty foundation of the comitology system (EC Treaty article 202): Divides power over the specification of comitology procedures unevenly among the EU institutions (in the Constitutional Treaty the European Parliament wanted a new provision on comitology because the existing one only gave decision-making power to the Council). The boundary between legislative and executive decision-making: Since the position of the EU institutions varies between legislative and executive rulemaking, the Council can increase its influence by shifting decision-making from codecision to comitology (in reaction the European Parliament tries to keep its legislative influence by setting time limits on delegated powers, arguing for call-back rights or by changing the treaty). Formal competence of the comitology committees: Divides power unevenly between the Council and the Commission (in the Commission’s proposal for a revised 1999 comitology decision it proposed increased use of the advisory procedure; the affected committees would lose all formal influence on Commission proposals for implementing measures). Voting rules in the comitology committees: Divide power unevenly between the Council and the Commission (in the Commission’s proposal for a revised 1999 comitology decision it proposed the abandonment of the management procedure for matters under codecision; this would increase the autonomy of the Commission because most committees would then operate under the advisory procedure). Voting rules in the Council of Ministers for matters referred to it from comitology committees: Specify how difficult it is for the member states to block Commission proposals (when revising the 1999 comitology decision some member states, especially Denmark, wanted to re-introduce the option of rejecting Commission proposals by simple majority since this would make it easier to block Commission proposals).
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6. Time limits: Short time limits to react to Commission proposals may reduce the real importance of formal influence for both the Council and the European Parliament (in the Commission’s proposal for a revised 1999 comitology decision the European Parliament was only given one month to raise objections; the Parliament wanted three months). 7. Information: The comitology rules specify how much information the European Parliament is allowed (according to the Commission’s proposal for a revised 1999 comitology decision the European Parliament was to receive agendas for committee meetings, draft implementation measures, voting results and summary records of meetings. The Parliament wanted this list extended to include revised or amended draft implementation measures). 8. Call-back provisions: A means for the legislative actors to keep influence on delegated powers (in the Lamfalussy area the European Parliament, lacking influence in the comitology committees, pressed for call-back provisions; when this was refused it inserted sunset clauses in the basic acts as an alternative). 9. Composition of comitology committees: Having participants in the comitology committees is a way to control executive rule-making (when negotiating the 2006 decision the European Parliament wanted to introduce parliamentary observers in the comitology committees; the Council and the Commission refused). 10. Guidelines for the use of comitology procedure in daily legislation: May limit or expand the use of the comitology system (the European Parliament succeeded in making the use of the new regulatory procedure with scrutiny compulsory; this is in contrast to the non-binding guidelines under the 1999 comitology decision). 11. Retrospective application of new procedures: Can be a way to increase (or limit) the importance of reforms (the joint inter-institutional statement on the new 2006 comitology decision specified 25 directives and regulations that should be changed to include the new regulatory procedure with scrutiny. The European Parliament wanted the list to be longer and, in addition, a full scrutiny of all acts adopted under codecision to see if adaptation to the new procedure was relevant. The Commission accepted the latter wish, and made a statement to this effect, but the Council refused any further commitments).
of institutional rules. The case study demonstrates that the actors are keenly aware of this and ready to fight for their position. At the general level, the endless comitology negotiations constitute a two-dimensional constitutional struggle. The first dimension concerns the relative position of the two legislative actors, the Council and the European Parliament. Should their supervisory position be equal? In hindsight it is clear that the Council was fighting a losing battle to keep its privileged position. The 2006 comitology reform was a further step in the process towards full equality that was completed with the
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Lisbon Treaty. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. How much autonomy should the Commission be allowed? While the comitology system is uncontroversial in many policy fields – for example, agriculture – it is evident that many areas are sensitive in the eyes of the member states, and that this fact constitutes a serious barrier against a general weakening of legislative control mechanisms. In addition, the case study makes it possible to specify in concrete terms how the actors pursue their institutional interests. Table 5.2 provides a list of instruments used by the actors in the 2006 reform. It is evident that the actors have a range of instruments available, and that they use them in imaginative ways. Table 5.2 Instruments to pursue institutional interests in the 2006 reform of the comitology system The following instruments were used to pursue institutional interests in the 2006 reform (examples in parentheses): 1. Sunset clauses: May limit delegation (in the area of financial regulation the European Parliment inserted time limits in provisions delegating powers in order to pressure the Council to accept a general call-back right). 2. Money: The European Parliament’s budget authority may be used to impede the practical operations of the comitology system (when revising the 1999 comitology decision the European Parliament withheld funding for comitology committees in order to put pressure on the Council to find a compromise). 3. Time: The most patient legislator can employ delaying tactics (in 2002, the Council stalled the Commission’s proposal to amend the 1999 comitology decision for three years; in 2005–6 the European Parliament blocked a number of internal market directives in order to put pressure on the Council to compromise in the comitology area). 4. Court proceedings: Can be used to force actors to change their use of comitology (in 2006, a number of member states challenged the Commission before the European Court of Justice in order to change the use of comitology under the RoHS directive). 5. Safeguard mechanisms: Can be used for unilateral non-compliance with comitology decisions (a number of member states invoke the GMO directive’s safeguard clause in order to avoid the decisions coming out of the comitology system in this area). 6. Right of initiative: Can be used to time the initiation of reform procedures (the Commission used its right of initiative to decide when to open the formal procedure for revising the 1999 comitology decision. Care was taken to time this so that the proposal followed in the wake of the White Paper on European governance).
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This is not least true for the European Parliament, which helps explain why the Parliament wielded more influence than the pre-Lisbon Treaty formally allowed. Especially the daring use of sunset clauses (and, to a lesser degree, its budgetary authority) made it possible for the Parliament to prevent decisions from slipping from the codecision to the comitology area and to win important victories in terms of more lenient time limits, amounts of information, call-back rights and, of course, the introduction of the new regulatory procedure with scrutiny, which finally put it on an equal footing with the Council in selected areas of delegated decision-making. However, the Council also has effective instruments, so the Parliament’s victory was not complete. Until the Lisbon Treaty it was favoured by the status quo because it possessed the power to decide the list of comitology procedures. Furthermore, it can employ delaying tactics to avoid or delay changes. Finally, the Council’s silent approval of unilateral non-compliance by individual member states, especially in the GMO area, puts pressure on the Commission to use delegated power carefully. The use of these instruments made it possible for the Council for many years to resist the Parliament’s call for full equal power over the Commission’s delegated powers. It has successfully limited the use of the new regulatory procedure with scrutiny and avoided its full retrospective application. It has also successfully rejected the Parliament’s wish for observers in the comitology committees. In conclusion, the chapter’s analysis supports hypotheses 4, 5 and 6. It shows that the actors behind the comitology system hold consistent preferences over this system and actively pursue them in instrumental ways. It is obvious that the actors are not unified in a search for a technically rational system. On the contrary, they have a keen eye on their institutional interests and view the shaping of the comitology system through constitutional lenses. The system can best be understood as a compromise between actors pursuing positions of institutional control. Both winners and losers have influence on the design of the comitology system’s administrative procedures. The result is a system that is not efficient from any single actor’s point of view. It is no wonder that the comitology system appears mysterious and bizarre to outside observers.
6 Comitology Preferences in Daily Legislation
Every year the Council and the European Parliament enact hundreds of regulations and directives, and about half of them contain a comitology provision. In these cases, the EU legislators delegate executive power to the Commission, but require it to follow a comitology procedure when using this power. This chapter examines the EU institutions’ comitology preferences in these situations. Do the preferences of the Commission, the Council and the European Parliament exhibit systematic patterns in daily legislation? This is an alternative investigation of the hypotheses that were also examined in the case study of the 2006 comitology reform in the previous chapter: Hypothesis 4: The Council favours strict comitology procedures. Hypothesis 5: The Commission favours permissive or no comitology procedures. Hypothesis 6: The European Parliament favours: a. narrowing delegation to technical matters b. permissive or no comitology procedures, or alternatively c. access to the comitology system But while Chapter 5 represented a most-likely case, this chapter provides a hard test of these hypotheses. First, there are guidelines for choosing comitology procedures in daily legislation. They were first introduced by the Council’s second comitology decision in 1999. Although they are non-binding, they nevertheless introduce some order and predictability. If the legislators want to introduce a comitology procedure that runs 94
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against the guidelines, it is legitimate for other actors to challenge this. In this sense the choice of comitology procedure in daily legislation is not completely free. Second, a high degree of open conflict over the choice of comitology procedure in daily legislation is not to be expected. The EU institutions handle hundreds of legislative proposals every year and they have considerable experience with each other’s preferences. Some routinization is likely. In cases where the actors know that their favoured comitology procedure has no chance of surviving the legislative process, they are unlikely to press their case. They are more likely to be strategic and only propose their favourite comitology procedure where it has a reasonable chance of being accepted by the other actors. This raises a tricky problem of anticipated reactions. Both the informal guidelines and the problem of anticipated reactions will be treated in greater detail later in the chapter. The point is that they make this empirical setting a least-likely case for the hypotheses. Studying comitology preferences in daily legislation is also difficult because the object of study – the comitology procedures – changes over time. The list of procedures to choose from in daily legislation was specified by the Council’s comitology decisions until the Lisbon Treaty and by the European Parliament and the Council’s comitology regulation after the Lisbon Treaty. The 1987 comitology decision specified four different procedures and several variants. The 1999 decision streamlined the comitology procedures to four standard ones. In 2006, a new fifth procedure was introduced when the Council established the regulatory procedure with scrutiny that was examined in the previous chapter. In 2011, the European Parliament and Council’s comitology regulation merged the management and regulatory procedures into variants of the new examination procedure. To keep a firm grip on the dependent variable, the analyses in this chapter focus on legislative practice under a single comitology decision, namely the 1999 decision. Under the seven-year rule of this decision the Council acting alone or the Council and the European Parliament acting together enacted a total of 686 new regulations and directives. They have all been coded to allow an analysis of the chapter’s hypotheses. The chapter is organized in the following way. Since my analysis is not the first to investigate comitology preferences in daily legislative practice, I start by reviewing earlier studies. I then explain in greater detail why I focus on legislative practice under the 1999 comitology decision. This is followed by a discussion of the two factors that make such a study a hard case for the hypotheses: the informal guidelines for the choice of comitology procedures and the problem of anticipated reactions. I then
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explain my data and methods before starting the empirical analyses. The chapter closes with a discussion of the combined lessons of the analyses in this and the previous chapter.
Earlier studies of the choice of comitology procedures in daily legislation Three studies have directly addressed the question of comitology preferences in daily legislation. The first was made by Dogan (1997; see also 2000), who investigated all EU legislation in the period 1987–1995, a total of 4601 acts. He found consistent evidence that the Commission and the European Parliament favour permissive or no comitology procedures, while the Council favours restrictive comitology procedures. Classifying the procedures I, IIa and IVa (under the 1987 comitology decision) as ‘executive autonomy’ and the procedures IIb, IIIa, IIIb and IVb as ‘executive dependence’, he found that the Commission proposed executive autonomy in 71 per cent of all instances involving new comitology procedures. The European Parliament favoured executive autonomy in 81 per cent of these instances – that is, it was willing to grant the Commission more autonomy than it asked for. However, the Council only allowed executive autonomy in 36 per cent of the cases and imposed executive dependence in the remaining cases. This pattern of institutional preferences supports the chapter’s hypotheses. This chapter will investigate whether it still holds. The second study is by Franchino (2007, pp. 282–5), who investigated the European Parliament’s comitology preferences. Based on a content analysis of the European Parliament’s amendments to 369 Commission proposals under the codecision procedure he found that the Parliament wishes to strengthen its own role either by greater involvement in the comitology procedures or by transferring issues out of the comitology system and back into the ordinary legislative process. At the same time the Parliament often seeks to introduce a more permissive comitology procedure than proposed by the Commission, a finding that echoes the pattern identified earlier by Dogan and supports this chapter’s hypotheses. The chapter further investigates the institutional preferences of the European Parliament both within and outside the areas covered by the codecision procedure. The third study is by Heritier and Moury (2009), who examined the temporal dynamics of comitology preferences. Based on 102 legislative acts within one issue area – environmental politics – across 14 years (1994–2008) they investigated the preferences for the regulatory
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comitology procedure. In a second analysis they investigated the European Parliament’s comitology preferences based on 315 parliamentary reports under the codecision procedure. They found that the Commission and the Council increasingly agree on delegation combined with the regulatory comitology procedure. They interpret this as an expression of strategic, not sincere, preferences from the Commission and argue that it shows that the Commission is willing to compromise on comitology in order to increase delegation. In essence, they argue that, at least for the Commission, the data cannot be relied upon as indicators of sincere preferences. This underscores the methodological challenge of anticipated reactions when investigating comitology preferences. They also found that the regulatory procedure is increasingly accepted by the European Parliament, but that it tries to restrict the scope of delegation, at least until the 2006 comitology decision. This finding supports the hypotheses. This chapter will probe further into the problem of anticipated reactions and investigate the institutional preferences of the European Parliament both within and outside the areas covered by the codecision procedure. In sum, the available evidence, although scattered, largely supports this book’s hypotheses. The following analysis will try to reach a more conclusive answer by using a data set that is more comprehensive in the sense that it includes all legislative actors and all EU decision-making procedures. The results of the analysis support the chapter’s hypotheses, but also show an interesting development over time that underscores the methodological problem of disentangling sincere and strategic preferences. But first I need to argue why the chapter focuses on legislative practice under a single comitology decision.
Why focus on legislative practice under the 1999 comitology decision? To have sufficient cases for a quantitative study this chapter’s analyses focus on legislative practice in the pre-Lisbon period, where legislation took place under three comitology regimes – the 1987, 1999 and 2006 comitology decisions. Although these decisions use the same labels for the various comitology procedures – advisory, management, regulatory, safeguard – the procedures vary considerably across decisions. For this reason, the following analysis focuses on legislative practice under a single decision. This allows a firm grip of the object under study: the comitology preferences of the EU institutions during the legislative process.
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The 1987 comitology decision was the first attempt to rationalize and introduce more consistency and predictability in the large number of implementation committees and committee procedures used at the time. But this decision still specified four different procedures and several variants. The 1999 decision simplified matters further and streamlined the comitology procedures into four standard ones (Haibach, 1999; Bergström, 2005, pp. 189–209, 249–85). In 2006, a new fifth procedure was introduced when the Council established the regulatory procedure with scrutiny that was examined in the previous chapter. As to the individual comitology procedures, only the advisory procedure has been constant over time. The management procedure underwent considerable change in 1999 when the variants were removed and replaced by a new management procedure that allowed the Commission to adopt measures even in the case of a negative opinion of the committee. The regulatory procedure underwent even greater change in 1999 as the Council’s option to reject a Commission proposal by simple majority was abolished. In 2006, the regulatory procedure underwent another profound change when the new variant – the regulatory procedure with scrutiny – was introduced. Finally, the less frequently used safeguard procedure has also changed over time. For a more precise overview of the historical development of the individual comitology procedures see Chapter 2, especially Table 2.2. Also the position of the European Parliament has changed considerably under the three comitology decisions. The 1987 decision allowed the Parliament no influence, whereas the 1999 decision provided for a limited involvement of the Parliament in the implementation of acts adopted under the codecision procedure. The Parliament was to receive all relevant information and to exercise some control of ultra vires behaviour by the Commission. But this was a weak control mechanism. If the Parliament found that the Commission’s proposal exceeded its delegated powers, it might adopt a resolution. The Commission then had to take this resolution into account, but was still allowed to continue with the procedure. In 2006, the Parliament was finally given powers equal to those of the Council, but only in relation to comitology working under the new regulatory procedure with scrutiny. In sum, apart from their labels the comitology procedures have undergone considerable change over time. In order to allow an unequivocal investigation of comitology preferences, the following analysis focuses on choices under just one comitology decision, the 1999 decision. The different comitology procedures constrain the Commission to various degrees. Under the 1999 decision, the advisory procedure is
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obviously the least constraining since the Commission is not obliged to follow the committee’s opinion. The safeguard procedure is obviously the most constraining since each member state’s representative may veto the Commission’s proposals. Among the two intermediary procedures, the regulatory procedure constrains the Commission more than the management procedure. According to the latter procedure, the Commission’s proposal can only be referred to the Council if a qualified majority can be mustered in the committee, while the former procedure only requires a blocking minority. Formal game theoretical analyses confirm this rank order of the comitology procedures (Steunenberg et al., 1996, 1997; Ballman et al., 2002). In terms of constraining the Commission the comitology procedures can be summarized in this way: Advisory procedure < management procedure < safeguard procedure
procedure