Around 97% of the laws the EU adopts each year are secondary legislation. Unlike ordinary legislation, most of the time the College of Commissioners are blind to what’s being put out the door in their name.
Rarely, when dealing with politically sensitive files, like the Fuel Quality Directive and the Endocrine Disruptor Criteria, the College of Commissioners step in and decide.These are two exceptions. I worked on both of them.
Technocrats make the law
Most people in Brussels prefer technocrats to make the decisions for secondary legislation. This makes a lot of sense most of the time. I doubt Commissioners want to scrutinize where air quality monitoring machines are meant to be placed.
99% of the time this is not going to be a problem. I think that 1% of the time something is going to get through that really deserves the political scrutiny of the Commissioners. These are stories that the anti-European press feed on.
The chance that the Commission can weed out suspect proposals is low. Most secondary legislation does not benefit the review provided by Better Regulation. Today, only a small percentage of initiatives get a road map and even fewer benefit from an impact assessment. The Regularity Scrutiny Board can’t step in a point out that the earnest technocrat got the case wrong, developed amnesia for subsidiarity, or forget the limits created by the enabling legislation. The only people who benefit are the anti-European media.
I’ve worked inside the Commission and Parliament passing laws. The truth is most officials and Parliamentarians are hard working, dedicated and informed. Yet, none of them, even the most talented, had solved the problem of knowledge.
Checks in the System
Good governance puts checks in the system. Some technocrats don’t like it – their freedom is restrained – but the best support it.
The real checks for secondary legislation come down to this. First, the proposal needs to go through interservice consultation. Second, after that interservice consultation, the draft delegated and implementing acts are made public for a 4-week public feedback. Third, after that the Commission adopt the proposal.
Member States and MEPs get to scrutinize proposal. Getting them actively involved is hard to do. I write this as someone whose pulled this off more than once.
I readily admit that the chances of changing things substantively once the Commission put something out the door are limited.The longer a file goes on, there is less chance to genuinely influence things positively.
Indeed, for implementing acts, if the College of Commissioners wake up very late in the system and realise things have gone very wrong there is nothing they can do about it. The rules provide that “Where there is a qualified majority in favour of the draft implementing act (positive opinion), the Commission is required to adopt it (Article 5(2) of the Comitology Regulation).” The Commission hands are tied. They can’t act even if they wanted to.
- Inter-service consultation
During interservice consultation, the Cabinet can press a button to accept or block a proposal.
In practice, the system stands and falls on herculean service and cabinet officials. After all, they have to make a judgement based on a short description about the proposal.
For example, when they are looking at proposals about chemicals, they get to look at text with the full scientific name, a name that is so rarely used in practice, no-one other than the desk officer knows what the proposal is about.
The services and overworked cabinets have 10 to 15 days to understand the ramifications of the proposal and annexes. It is going to take a remarkable political official to pinpoint that a new proposal on page 22 of Annex II, point 5, has been inserted from out of the blue. The Cabinet official won’t know if it has been inserted at the request of a member state, interested group, or act of revelation.
Officials have no incentives to highlight the sensitive elements in a proposal. That’s going to send the proposal up to the College and increase their work load a hundred-fold.
Anyway, interservice consultation is not public.
See my blog post here.
2. You have 4 weeks to turn things around
You really only have one slim chance to make a difference. Secondary legislation now has a 4-week public consultation. Directorate-Generals look at the feedback. You can than raise the evidence and sweet merry hell. The Commission has – like for mobile roaming charges – stepped in and withdrawn poor proposals.
You can track it here.
Not enough people take this opportunity. Take it. But, realise you are dealing with civil servants, so highlight the procedural breachs, how the text ignores the spirit and letter of the law, or is based on fake evidence.
Don’t go for green ink 62 page submissions citing strange conspiracies – the don’t work.
Recommendations
There is no practical way the College of Commissioners can filter all the proposals going out in their name. A regulatory state needs some political control to make sure that the 1% of the 97% of proposals are not barmy and open up the EU to ridicule.
So, until officials solve the problem of knowledge combined with superhuman endurance, these simple fixes would improve things:
- The public got to know when the proposal was entering Inter-Service Consultation
- Allow for five-day public consultation on all inter-service consultations. Most of the time, there will be nothing to say, but once in a long while, someone is going to point out the Commission’s about to propose something silly
- A unit of officials reporting direct to the President with the mandate to scrutinize each and every proposal. They should be able to block any proposal that does not add up.
Source: Guidelines for the services of the Commission Implementing Acts and Delegated Acts
Highly informative!