It may seem obvious that the European Parliament can only scrutinise laws if they have had a chance to read them before they are adopted.
It’s hard to review something if you don’t have a copy of what’s being proposed. It’s harder if you are sent a copy after the law’s been adopted.
It’s so obvious but agreements between the European Commission, Council and European Parliament, labour the point.
The Inter-institutional Agreement on Better lawmaking (13 April 2016):
“To ensure equal access to all information, the European Parliament and Council shall receive all documents at the same time as Member States’ experts” (Para 28, 3rd indent)
You may wonder why it’s even there. If the Commission did not do this, the European Parliament won’t be unable to protect their procedural or substantive rights. They’d not be able to do their job.
Whilst it may seem obvious, in 2005 the European Parliament, by accident found out some glaring cases of the non-transmission. From then on, the European Parliament has been very careful about protecting their hard-won rights and privileges when it comes to secondary legislation.
The current Commission instructions to the Services for implementing acts and delegated acts are silent on the issue.
The missing emails
The Environment Committee stumbled upon a case of non-transmission that had happened in late 2014. The Committee tabled a Resolution (17 March 2005 (link)).
This one case helped identified a lot more problems. It seemed some officials just forgot to transmit texts to the European Parliament. It seemed they sent the documents to the wrong email address. MEPs were blissfully unaware.
When the Environment Committee’s Resolution was backed by the full European Parliament on 12 April 2005, (link) the European Parliament asked the Commission to audit their books for more cases of non-transmission.
“3. Confirms that subsequent scrutiny of other comitology files has revealed that the Commission’s non-compliance with Decision 1999/468/EC and the Agreement in terms of the procedural provisions is not an isolated case;”
The Commission’s Secretary-General division performed an audit. In their review (link), published on 20 July 2005, they identified an overall 2.5% error rate.
The Commission’s view was that the errors were focused in three Directorate Generals:
1. Environment
2. Health and Consumer Affairs
3. Humanitarian Affairs
Even then, the problems were focused on a few Committees:
- Health and Consumer Affairs: The Standing Committee on the Food Chain and Animal Health
- Humanitarian Affairs – The Humanitarian Aid Committee
Annex 1 provides an overview, and Annexes 2 to 4 gives more details about the breaches.
At least for Environment and Health, some of those files were not small issues. So, in those cases, the European Parliament were unable to protect their procedural or substantive rights.
The European Parliament focused their attention on two files. The Commission repealed one and finally got around to sending the documents for the other. After the later was re-adopted, the European Parliament and Denmark challenged it before the European Court. In 2008, the European Court annulled the decision.
Time to end the secret lawmaking?
My own view remains that the only way for the system to be effectively policed is for the public to be able to have full access to what happened in the adoption proceedings.
Today, secondary legislation is still, more or less, a closed shop.
The welcome advances in the delegated legislation (link) are not mirrored for the implementing acts and RPS measures (link). That later system is outdated.
Unlike for ordinary legislation, to this day the public and MEPs have no official idea of how the Member States voted in the Committee. You need to rely on people who were in the room to tell you how people voted.
Agreement 2008/C 143/01 (link) allows only for “1. the results of the voting, summary records of the meetings and lists of the authorities to which the persons designated by the Member States to represent them belong.” But not for how the Member States voted.
The Commission’s 2002 Operational Instructions made clear that the official summary record must not show the ‘individual votes of the delegations nor the positions taken by them are to be shown” (page 4, (B)(b).
This is the reverse of how votes meeting in the Council are reported. The Member States, when voting in the Council, make the vote results public (link). Ministers do not feel compelled to keep their voting record secret.
But, their Member State officials, when voting on secondary legislation, can do it in secret. This gap covers 98% of EU legislation.
Reference
review 20 july 2005 resolution 1732005 16032005motionforaresolution 12 april 2005 resolution