The attention of the Commission’s leadership is rightfully focused on Brexit. Whilst their focus is diverted, some inside the Commission may see an opportunity to push through their agendas, and bypass the controls of inter-service consultation.
The Principle of Collegiality
Interservice consultation acts as a mechanism to enforce the principle of collegiality. It ensures that one Commissioner or Directorate-General cannot force their agenda through against the wishes, or knowledge, of other Commissioners and Directorate-Generals.
As the Commission state it “The Commission functions on the principle of collegiality. Decisions are taken collectively by the College of Commissioners, which is responsible to the European Parliament for decisions taken. Each of the 28 Commissioners carries the same weight within the decision-making process and they are equally responsible for the decisions made.
Collegiality guarantees:
- the quality of the decisions taken, since each Commissioner must be consulted on every proposal
- institutional independence, because decisions are adopted without partisan pressure
- the sharing of political responsibility across all Commissioners, even when decisions are reached by majority decision”
The principle applies to Commission officials in the Directorate-Generals and to Commissioners.
When to apply it
If officials are unclear about the idea, or how to apply it, they can turn to the Commission’s Manual of Procedures or the Better Regulation Guidelines and Toolbox.
As I spend a lot of time on secondary legislation, I was happy to see that interservice consultation has not yet formally been removed from secondary legislation. The Better Regulation toolbox is clear:
“An interservice consultation must be carried out, for delegated acts before adoption by
the Commission, for implementing acts under committee control before the draft is
submitted to the committee for an opinion.” (Toolbox 40)
How to bypass the checks and balances
Two recent cases highlight show adherence to these basic checks and balances principle is fraying.
Case Study 1
In one case, one element of a proposal was removed during inter-service consultation.
When the amended proposal was sent to the Member State Committee, the exact same wording was re-inserted during the meeting at the request of the Member States. It as like the Member States had seen the original proposal.
The usual practice, at least if one were to follow the spirit of collegiality, would be to re-submit the updated proposal to a fast track inter-service consultation. This can be done very quickly. I used to ask for a recess over lunch to consult with colleagues in other services.
That there appears to be no record of any Member State(s) asking for those provisions to be inserted is simply proof that telepathy exists.
Case Study 2
In another case, a proposal is sent to the Comitology Committee for “Discussion and tentative vote”. This is despite the draft proposal never having been signed off by the other services. Member States are going to a meeting thinking that a vote is going to happen. The officials are clear to everyone that a vote is going to happen.
The phrase ‘ tentative vote’ is a ruse. It simply means that the Member States are asked: “if the proposal is to put to you for a vote, will you support it or not”.
If they indicate yes, the proposal is put to a vote. If it is clear that the Commission won’t get a qualified majority for the proposal, the Commission takes the proposal off the table.
Today, as the attention of the guardians of the system is focused elsewhere, we face the prospect that the one part of the Commission is putting forward (secondary) legislative proposals that were never formally signed off by the Commission.
When the Member State Committee backs the (unsanctioned) proposal, there is little or nothing that the Commission can do about it.
Again valuable insights in the secret world of comitology. That applies as well to other principles such as “evidence based decision making” and “understanding the impact of a decision”.