A Dutch Man Lets in the Sunshine to EU Law Making

Laws made under the glare of publicity tend to be better laws than those made in secret. For a long time I always thought that “sunshine” requirements to law making were a good thing, and then I moved to Brussels, and found out that I was wrong, or at least I had an unhealthy fetish for transparent law making.

Since 1997, working in the European Parliament and European Commission,  I discovered my penchant was not held by many politicians or officials. Whilst the public could see copies of ordinary legislative proposals, and indeed, they could find these proposals published on line, I soon discovered that most EU law was adopted in a secretive fashion.

What is Delegated Legislation

I am, of course, referring to “delegated legislation”.  Around 93% of the laws the EU adopts each year are delegated legislation,  and until this year (2016) they were made with little or no public scrutiny.

Delegated legislation is common to most countries. They are the technical rules Parliaments delegate to the government administrations to prepare and, with controls and oversight, adopt.  They are used for genuinely technical issues that Parliamentarians think technical experts are better placed to work on and develop rules on, or to update laws in light of technical progress. Most Parliamentarians would rather stay away from the very technical details of how the laws they are working on are going to work in practice, although of course there are exceptions.

These technical rules can cover things like how to transfer air quality monitoring data from Member States to the Commission. It is used to update which chemical substances are banned or restricted under EU chemical law, or which otherwise banned substances can continue to be used, or not, in electrical and electronic equipment.

Fortunately, in the EU (and most European countries) we do not allow civil servants to make genuine policy decisions and write the laws to enact those changes. The strict policy choices and the real impacts that they entail should, in the European tradition, be made by politicians and not unelected officials. For example, in the EU politicians, whether MEPs and Ministers, will vote and decide on the type of air pollutants to be regulated and the level of ambition for how much air pollution should be allowed. In contrast, the US Congress has delegated these core decisions to the government administration. Fortunately, Europe does not allow politicians to avoid their core responsibility of taking tough decisions.

This rule making procedure has been around for a long time,  and it was known by the term “comitology”, or decision making by committee.  Since the Lisbon Treaty in 2009,  there was an attempt to streamline the process. The EP has provided a useful summary here of the current system. Today,  there are three systems for the adoption of delegated legislation that you will come across. They are:

(1) delegated acts,

(2) implementing acts

(3)  Regulatory Procedure with Scrutiny system

The EU  Treaty only refers to delegated acts (Article 290) and implementing acts (Article 291).  But, around 300 Directives exist that use the pre-2009 system and the Regulatory Procedure with Scrutiny (RPS) system. The RPS system is due to be phased out in 2017. It is not hard to identify what system is being used as the enabling legislation will mention it.

New Rules to Let in the Sunshine

Today, I will look at upcoming new rules tabled by the European Commission to allow the public to (1) see the proposals for delegated legislation, and (2) allow the public to comment on the draft laws. The changes are being introduced  through the new “Better Regulation” package. They are arguably the most radical step to open law making to happen to the EU since the Single European Act in 1987. Whilst that may be so, most people in Brussels are blissfully unaware of it. These new rules  could start as soon as 1st July 2016.

Most NGOs, and many trade associations, focus almost exclusively on trying to influence ordinary legislation and EU policy, and seem to ignore the adoption of delegated legislation. When important proposals are tabled they seem to be blindsided and react late in the day, if at all. I’ll look at why NGOs and others have this myopia in another blog.

I will follow up this post with another on how the Commission’s power to bring forward delegated legislation is currently controlled by the European Parliament and the Council. I’ll look at how difficult it is for MEPs or Member States to control the Commission.

 

Is the  Current System Broken?

Whilst many of the measures are technical, some are sensitive, and sometimes the Commission Services have shown themselves unable to operate the system. The system operates on a basis of trust with the Commission sending the correct files to the Council and the Parliament by way of functional email boxes. Sometimes the Commission have not done this.

For example, as recently as December 2014, the Environment Committee  started an objection to a “delegated act entitled Commission delegated Regulation (EU) No …/..of of 12.12.2013 amending Regulation (EU) No 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers as regards the definition of ‘engineered nanomaterials’. The delegated Regulation adapts the existing definition of ‘engineered nanomaterials’ in Regulation (EU) No 1169/2011 to Recommendation 2011/696/EU on the definition of nanomaterial adopted by the Commission on 18 October 2011.”

The objection from the Parliament centred on (1) substantive and (2) procedural grounds. In this case, the European Commission published the act before the period of objection from the Parliament or Council had expired. The Commission acknowledged their error, citing a clerical error and a high volumes of procedures. So, whilst the act was published on 19 December 2014, the error was spotted, and a notice published in the Official Journal that the notice of 19 December was null and void. The Parliament were notified on 19 December of the error.

This case is not isolated. In the early 2000s, the Environment Committee stumbled upon the systematic non-transmission of proposals from the Commission to the European Parliament for hundreds of proposals across a few Commission departments, although mainly by DG Environment and DG Sante. In that case, the Environment Committee stumbled upon the large scale non-compliance with the system after being informed that two sensitive changes to the exemptions granted hazard substances in vehicles and electronics. Whilst the Member States had backed the Commission’s proposal, the Parliament had not objected because they had not been informed of the proposals.

Secret Law Making

I’d argue that until a few weeks ago, most European legislation was  adopted in secrecy without the knowledge of the public.

There is no public source of draft measures prepared by the Commission that the public can examine. Unlike ordinary legislation, where you can look up proposals and where they are via EUR-lex there is no similar database for delegated legislation.

You can embark on a journey of discovery and search the Commission’s comitology database for proposed implementing acts. But, so poor is it’s ease of use that asking a friendly experienced Russian cyber hacker would be advisable. And, if the Commission forget to transfer the documents to the Parliament, you’ll still be none the wiser as to what proposals are lurking around.

Fortunately, the EFTA States in February 2016 launched their own database of EU delegated legislative proposals. As the EFTA agreement does not cover all areas, such as fisheries, it covers most, but not all, proposals. It is a very clear database.

This did not mean the draft measures did not leak. Well sourced interests will gain access to the documents, but the public won’t. The European Parliament in practice is left to being informed by well informed “observers” about “problematic proposals” coming down the pipeline.

For most delegated EU laws, the process of scrutinising the Commission’s proposals is left to the Member States and the European Parliament alone. The public are locked out. I would contend MEPs and Member States would do a far poorer job if the public could not comment on draft ordinary legislative proposals early on in their adoption because the proposals were secret or not easily publicly available. Of course, MEPs, Ministers and officials may have solved the problem of knowledge and know every intended, and unintended, impact of the proposal being tabled, but the public being able to read a proposal may help inform the legislators of some things they don’t know.

But, the issue is more important.  The late British judge Tom Bingham defined the the Rule of Law “… that all persons and authorities within the state, whether public or private, should be bound by entitled t0 the benefit of laws publicly made, taking effect (generally) in the future and publicly administrated in the courts (emphasis added) (The Rule of Law, Kindle Ed. loc.201).

EU Delegated legislation falls down at this basic but fundamental hurdle. The laws are not publicly made, in fact, the public have no right to see the proposals, let alone see how they are made. Sadly,  in the main, the European Parliament, Council, and Commission seemed very happy (until very recently) to deprive the public from seeing these laws being made.

Ironically, there was nothing to stop the European Parliament or the Council copying EFTA and making the information public. They choose, likely by inaction alone, to do nothing.

A Dutch Quiet Revolutionary

But, it seems that First Vice-President Timmermans  is about to drag the EU into the 21st century and make these proposals public before they are adopted. Any move on that front is tied up on the on-going talks on the so-called “Better Regulation” Package between the Commission, European Parliament and the Council. It is rumoured that on 1st July the Commission will publish nearly all draft delegated  acts, implementing acts and measures adopted under the regulatory procedure with scrutiny procedure. Brussels will be dragged into the sunshine of 21st law making.

First Vice-President Timmermans has been clear from the start he wanted to reform Europe’s arcane system. During the confirmation hearings he stated:

Source: ANSWERS TO THE EUROPEAN PARLIAMENT QUESTIONNAIRE TO THE COMMISSIONER-DESIGNATE Frans TIMMERMANS. Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights