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There is no doubt that institutional balance plays a major role in the regulatory process and in the delegation of powers of this type. As mentioned above, the Meroni doctrine has a special place in this issue at Community level. We will therefore present a brief introduction of the doctrine before going on to a detailed analysis of its underlying premises.
There is no serious disagreement about the need to delegate some
regulatory powers; consequently, no one challenges the objective usefulness of
agencies. Furthermore, no one would disagree that the objective reasons which
led to their establishment in all developed countries are also valid for the
EU. Everyone accepts that, although the Treaty does not provide for the
creation of such agencies, neither does it exclude them.
However, the
balance of the powers assigned to the institutions is an essential
characteristic of the Community structure, and a fundamental guarantee afforded
by the Treaty to European citizens. With this in mind, if we can allow that the
Community institutions delegate powers which have been conferred on them by the
Treaty to bodies having their own legal personality, such delegation must be
limited to implementing powers clearly defined and entirely supervised by the
delegating institution on the basis of specific and objective criteria. On the
other hand, such delegation cannot concern discretionary powers involving a
margin of political judgment, or this would jeopardise the balance of powers
between the institutions. To act otherwise would require an amendment of the
Treaty.121
This is at the core of the Meroni doctrine, which appears lately even to have
expanded, since its advocates see negative elements in such an amendment of the
Treaty, in that the possibility of giving even limited implementing powers to
agencies could affect the powers of the Commission and its position as
horizontal executive.122 A certain reading of the institutional balance
would thus become an eternal and unchangeable principle in the same way as
human dignity in the German Constitution.
The Meroni caselaw and in
particular the way it is interpreted by the Commission may be criticised on
several counts. Firstly, on the formal legal level, it should be pointed out
that:
Even were it possible to agree to the idea that no institution not provided for by the Treaty should be able to exercise powers of Community public service, it must be accepted that the judgment did not concern the specific problem of public satellite bodies created by the Community legislator. As has rightly been pointed out, such an approach would require serious examination of a possible numerus clausus of Community institutions with respect to Article 211 of the Treaty, considered as a rule of exclusive delegation or simply of principle.123 This was not possible in the ECSC Treaty, where even the former Article 155 did not exist. However, the strictness of the Meroni judgment is quite admissible and pertinent for the delegation of such powers to private legal persons, which was the question in this case.124 Consequently, the transposition of this judgment in toto to the context of agencies is mistaken and misleading.
The Meroni doctrine was also criticised for not being compatible with subsequent judgments, which nevertheless provided some clarification, without, it is true, touching on the thorny problem of the delegation of normative powers in the strict sense. First, in the same context of the ECSC Treaty, the Court has itself stipulated that the Meroni judgment does not prevent the Commission from delegating limited implementing powers to private persons.125 However, we are thinking here in particular of cases in which the Court graded the Commission's tasks and recognised that it may assess the most appropriate way of fulfilling specific tasks and, if appropriate, may decide to this end to use the services of external bodies, including bodies established under private law.126 If the Commission is the executive par excellence but not the exclusive executive of the Community, it may be inferred from such judgments and the comparative law of the Member States that it is possible to delegate the execution of limited public service tasks according to a specific legal basis.
This thesis is also corroborated by the Commission's standard practice of delegating to approved intermediaries within the Member States the performance of tasks which go far beyond pure management, but are in line with criteria laid down by a Council Regulation.127 This was further highlighted by the recent decision to delegate implementation of the Socrates II, Leonardo II and Youth programmes in large part to the Member States. The Commission's Legal Service found itself in an embarrassing situation when it became known that some Member States, in particular the Netherlands, had delegated all the tasks to private agencies. The way out is to consider that the Commission's delegation concerns only the Member States. If their internal legal systems permit it, there is no reason why they should not make use of private bodies.128 Consequently, Community public service tasks may be assigned to private persons by means of an initial delegation to the national authorities. This approach is completely inconsistent, but has the merit of pointing up the problem and blowing another hole in the Meroni doctrine.
Another criticism concerns the acceptable limits of valid delegation. A close reading of the Meroni judgment seems to show that such a possibility already exists. The Court states that "In reserving to itself the power to refuse its approval, the High Authority has not retained sufficient powers for the delegation...to be contained within the limits defined above. ...the High Authority has made it clear that it adopts the data furnished by the Brussels agencies without being able to add anything thereto. In those circumstances the delegation of powers granted to [them] gives those agencies a degree of latitude which implies a wide margin of discretion and cannot be considered as compatible with the requirements of the Treaty."129 The Court's finding that the Commission lacks a margin for discretion is therefore limited to its material inability to give an opinion on the figures on which the agencies' proposals are based. The Court therefore leaves open the possibility of better defining the form of the delegation in order to make it compatible with the Treaty. But this quotation from the judgment is also a real a priori admission that certain regulatory tasks of a highly technical nature are outside political control. I believe that today the Commission endorses in the same way the proposals of the London agency on authorisations for the marketing of medicines. Should the Meroni case law also be applied in this case? Certainly not.
The Meroni doctrine may also be criticised on the basis of the distinction between conferred powers and delegated powers. According to this thesis, which appears to be supported by the Council's Legal Service, powers are not initially conferred by the Treaty on an institution and then delegated by that institution to external bodies; rather, they are powers created by secondary legislation and directly conferred by that legislation on the bodies in question. Therefore, there is no delegation of powers within the meaning of the Meroni judgment, which is not applicable in this instance, and the institutional system is not concerned.
One final criticism may be made with regard to the confusion between the
conditions ratione materiae (scope of the delegation) and ratione
personnae (institution given the delegation) of a legal/lawful delegation
of Community regulatory power. In this regard, the Meroni doctrine appears to
be founded not only on an extremely restrictive view of the scope of the
delegation, but also on a closed view of the institutions which could be
entrusted to exercise delegated power. The discretion of the Community
legislator is doubly bound, both as to the power delegated and as to the
identity of the person to whom it is delegated. Thus, the ancient rule of
nemo plus juris ad alium transfere potest quam ipse habet does not
concern only the jus (scope of the delegation) but the alius
(person empowered) as well. Clearly, such an interpretation, which is only
justified by the supposed numerus clausus of persons to whom Community
regulatory powers may be delegated, completely blocks any possible evolution of
the system.
Beyond formal criticisms, what seems to me even more important
is to look for the constitutional bases of the Meroni doctrine that introduce
an untenable and unjustified rigidity into the institutional evolution of the
European Union.
In my opinion, the institutional premises, which underlie the logic of
these theses are as follows: 1. the delegation of regulatory powers
constitutes, within the framework of the EU, a constitutional provision. 2. The
European Constitution necessarily evolves according to the
parliamentary/majority model. 3. The democratic deficit can therefore only be
seen as a lack of legitimacy on a par with that enjoyed by the national
governments. 4. Therefore, comitology is the necessary and sufficient cog in
the system. 5. The institutional balance laid down in the Treaty is immutable,
and 6. For all these reasons, the Regulatory Agencies cannot be democratically
accountable and tend to give the Community Institutions a predominant
intergovernmental character.
We will now analyse these premises.
Given that the Commission's implementing powers have always been interpreted extensively, not least to ensure the effectiveness of the primary measures decreed by the Council (and the European Parliament),130 it is normal to understand regulatory power in Community law as the ability to adopt general and abstract binding rules within the framework of more general legislation adopted by the competent authority. Why shouldn't agencies, duly vested to this end, be eligible to draw up such measures, especially in areas which are highly specialised and involve a rapidly evolving technical aspect? Advocates of the Meroni doctrine consider that the implementing powers conferred on the Commission by Article 202 as spelt out in Article 211 plus the budgetary implementing powers laid down by Article 274131 involve the formulation of general rules of application and the applicability of those rules in specific cases. The powers laid down by the Treaty cannot be reduced, unlike others which do not flow directly from the Treaty. They conclude that the granting of such a power to an agency is ultra vires, that the Commission has, as it were, a constitutional duty to execute its powers by its own departments, any external delegation being prohibited.
This already radical position is made even more so by the fact that it ignores the highly technical nature of some regulatory measures, regarding this distinction as an excuse in order to diminish the powers of the Commission, since in a postindustrial world all legislation is necessarily technical in nature but involves for the legislature wide margins for political judgment and discretionary power. And it goes to the very limits of its logic, by questioning whether even an appropriate amendment of the Treaty would make it possible to overcome the arguments which prevent regulatory powers from being conferred on agencies or whether there are, in other words, underlying principles in Community law that are not susceptible of constitutional amendment, which cannot be reconciled with recognition of regulatory powers in the hands of bodies other than the three institutions.
According to this view, the only thing which can be delegated is technical, scientific and/or administrative assistance for fulfilling the tasks laid down by the Treaty, on the understanding that such "assistance" is limited to preparatory, or in any case ancillary measures, that it does not involve any margin of discretion and that final responsibility for the execution of these tasks remains entirely with the Commission.
In this context, the very legality of assistance bodies set up to manage external aid programmes (Kosovo) is in doubt, as they encroach upon the Commission's budgetary powers.132 The same goes for the "law-application" agencies (medicines, industrial property), as their technical assessment of the issues nevertheless involves discretionary choices. And it is completely incomprehensible to extend this dogmatic approach to fairly complex areas, such as airline or maritime safety, in which legislators can be confident that the regulators' policy goals and methods are nearly identical to their own. Delegating with broad discretion in these areas will then result in outcomes close to those preferred by legislators and, consequently, to those preferred by their constituents as well. Where is the illegitimacy here?133 Only a dogmatic approach can explain such an unfounded rigidity. A fortiori in the case of the EU, where the assumption that, as legislators are elected and bureaucrats are not, policy decisions made by the former are assumed to have a legitimacy that bureaucrats' rulings lack, is not valid at the Commission level.
This view of the nature of regulatory power is based not only on an immutable and fixed institutional balance, but it ignores the most important elements of that balance. The distinction between the monopoly on legislative initiative and the adoption of the final text is certainly one of these. The Commission's proposal for a more rational schema for the distribution of regulatory power would not only in no way diminish its prestige, but would strengthen its character as a policy-formulating, target-oriented institution, while preserving the essentials of the Community method. And of course nothing would prevent the legislator from ratifying such a law as a development in line with institutional balance, as we will show below.
This view finally ignores the difference between legislation that is a ponctual activity and regulation that is a perpetual process, which embodies application of the general rules to individual cases (decisions of quasi-judicial nature) and adaptation of these rules to specific situations (executive decisions).134 These decisions are both regulatory measures, which necessarly involve a certain margin of discretion. In this respect, they are closer to an administrative implementation activity already delegated to the Member States, than to a legislative work exercised by the EU institutions. Consequently, the delegation of such an authority to independent agencies is not a simple transfer of competence, but an effort to europanize some areas of governance, where the cooperation between community and national administrations is not sufficient to ensure an efficient rule-making or a uniform implementation.
There is no doubt that the parliamentary system is deeply rooted in the collective European consciousness. Whether it be in the purely majority form (Britain) or in the form of coalition government, the elected parliament as the direct expression of the will of the people is the depository of democratic legitimacy. The executive, however strong, is supposed to apply the laws, which the parliament issues, thereby controlling it.135
It was evident not the parliamentary model that the Treaty fathers chose for the European enterprise. A purely consultative assembly, a legislature made up of representatives of the Member States within the Council of Ministers, and a new kind of executive responsible for legislative initiative and supervision of application of the Treaties and secondary legislation. Rather, this original separation of powers, discreetly called "institutional balance", connotes the difficulty of describing in familiar public law terms a necessarily unprecedented system. Institutional balance is therefore a term describing the distribution and functionality of Community powers and not a normative principle. This is corroborated by the very nature of the Treaty, a text which has its origins in international law (the Member States remain the Lords of the Treaty), but which appears to be a framework law in limited areas.136
This unique system held within it from the very beginning the seeds of a very strong capacity for dynamic evolution: first the Court of Justice, which helped to forge a federal framework for this amalgam of interwoven powers; then, extension of the scope of application of the Treaty, which gave it the appearance of a constitutional text; finally, global development, which showed that the Member States, taken separately, were no longer capable of surviving and the relative conviction, supported by the clear success of the enterprise, that the European Communities were destined to go ever further in the process of integration ("of creating an ever closer union among the peoples of Europe").137
Undeniably, this evolution was accompanied by an approximation of the institutions to the parliamentary model. Many leapt to the conclusion that parliamentarian federalism is inherent in the nature of the EU.138 But this is not proven. This process of continuous democratisation of the Community institutions, in particular through the increase in the powers of the European Parliament and the extension of majority voting in the Council, seems rather a wish to draw the European model towards the national parliamentary/majority models, as the only ones capable of ensuring the legitimacy of the institutions, than an operational necessity inherent in European governance.139 On the contrary, certain signs lead us to think that this process contains contradictory elements and, if it continues in this way, may lead to dangerous predicaments for the future of integration as a whole.
Firstly, the parliamentary/majority logic transposed to Community level brings contradictions with it: traditionally, the ultimate source of legitimacy of the Community enterprise lay in the democratically elected national governments, which adopted the Treaties, and by the national parliaments which ratified them, prompting some astutely to observe that the right of veto is the ultimate foundation of the Community's democratic legitimacy.140 With the extension of Community powers, whole subjects have been taken out of the hands of the national parliaments, and the more frequent recourse to the majority may lead to acceptance at Community level of options which are not those of certain particular governments. Even worse, some governments occasionally knowingly use the Community level to pass legislation which would never be accepted by their own national parliaments. Indirect legitimacy no longer works. The problem of the legitimacy of Community decisions arises.
However, the majority system in the Council is on one hand becoming more and more uncertain and complicated with the prospect of enlargement,141 while the increase in the powers of the European Parliament is potentially losing its impact, if it does not have the means to exercise a real control and if the Commission remains a weak executive and in any case comes up against the lack of a European demos, the ultimate and apparently insurmountable obstacle to progress towards federalisation.142
his inadequacy of the parliamentary/majority model to legitimate the Community process is in my opinion illustrated by the fact that the two opposed camps on the European political scene, the federalists and the eurosceptics, come together on this specific problem, both placing the emphasis on the powers of the parliaments.
The agencies' issue has the merit of attempting to make another contribution to the questions of legitimacy, by placing at the centre of its concerns not the institutional architecture but the decision-making process. But agencies are, by definition, non-majority bodies not answerable to the nation's elected representatives, everything the parliamentary model abhors. Can this obstacle be overcome?
The operation is not simple and becomes more complicated because of the peculiar structure of the EU as a unique system of separation of powers. The most striking original feature is the sharing of the executive power among several independent institutions (Commission + Council), with an important redelegation of the implementing measures to the Member States (over 80%), which makes their uniform application over the entire Community's territory much more difficult.
In fact, there is an institutional vacuum between EU legislators and the implementation of European laws by the national authorities at the Member States level. The absence of adequate features of conflict resolution and an anequal expertise and independence of the national regulators further undermines the efficiency of the system. The lack of a European administration infrastructure makes cooperation between the national administrations essentially depend on their mutual trust and loyalty. In the perspective of enlargement, this situation becomes clearly insufficient to assure the credibility and legitimacy of the European rule-making process.
The regulatory agencies may contribute to complete this institutional vacuum. Their presence better takes into account the divergent interests than can direct cooperation between the Community and the Member States. This way, the agencies are capable of diminishing the permanent tension between European and national authorities on the sharing of the executive powers. The agencies may be a honest broker between them.
To resume, a view of European democracy based on the supremacy of Parliament therefore goes against the very nature of the Community institutional architecture.
In our opinion, this is the main reason for the confusion in the debate on the democratic deficit of the European institutions, to which we now turn.
For there to be a deficit, there must be a factor for comparison. And in order to compare, there must be comparable bodies. The idea of the European institutions' democratic deficit assumes that they are being compared with national institutions and that the two are comparable. Both assumptions are unfounded.
The European enterprise was a pragmatic invention, not a preconceived model.
The concept of democratic deficit was a complete invention, developed exclusively by academic thinking. What a noble occupation, to give an empirical structure theoretical and, what is more, democratic consistency!
The first efforts quite naturally focused on an indirect foundation due to the fact that the Community system was still in the making. This was built around conferred powers, a principle fulfilling a democratic function according which Community action falls within the framework accepted by the national governments and approved by the national parliaments.143 The conferring of limited and non-extendable powers without a new agreement of the Member States' national institutions also plays a reassuring and conservative role, which is very pleasing to the supporters of national sovereignty. Thus, the safeguarding of national sovereignty also contributes to the democratic foundation of the European enterprise through the notion of conferred powers. Hence some of the difficulties pointed out above in decompartmentalising the institutional system and transferring powers outside.
The parliamentary logic is very much present in people's minds. It is therefore quite natural to look to this system for any missing or additional legitimacy in the Institutions, by relating them to the legitimate national institutions ("sovereignists") or by applying to them the same model (federalists).
These models have evolved quietly and with a certain complementarity for several years, while the Member States were fewer and more homogeneous and Community powers were more limited and less interventionist. This was more or less the right way for the period of so-called negative integration.
From the 1980s, with successive enlargements that required an active policy of economic and social cohesion and above all with the mass of regulatory measures necessary not to achieve the internal market, but to make it work, the machine seized up. Nobody was happy, some finding that the national parliaments were losing too many powers, others retorting that the European Parliament had to recover the rights of control necessary to ensure democratic legitimacy at the supranational level.144
And naturally we have gone further down the same road believing, often in good faith, that the method is still appropriate. Maastricht and Amsterdam were very important steps on this road.
However, has become increasingly clear that this is more a process of politicisation than democratisation and that if it continues it will only further distance European citizens from the common enterprise. It has been shown that the extension of common powers to redistributive policies in areas where the Member States have considerable policy differences increases rather than reduces the democratic deficit.145 We have seen that the Commission has to act in highly technical areas without either the know-how or the human resources necessary to do so. The result is increasing mistrust of Community rulemaking, crowned by spectacular crises.
Finally, the Community Institutions are not conceived on a
democratic/parliamentary model, in the sense of a vertical responsibility
towards the people. Paradoxically, if this were the democratic criterion for
accession, then the EU would not be able to join itself! Furthermore, it is not
mathematically certain, and perhaps not really politically advisable, that the
EU should become a federal and democratic superstate. It therefore seems
prudent, if only for a long transition period, to look elsewhere for the
foundation of its legitimacy. J.H. Weiler once identified the source of this
legitimacy as the ideological triptych "peace-prosperity-cosmopolitanism" in
reaction to the other horror-triptych "total
war-depression-nationalism".146
I would say that the EU was for a long
time and very fortunately still is the guarantor of these three values dear to
the European people. As long as it remains so, it will be legitimate. The most
important thing is to take decisions with which the citizens can identify and
here we are attempting to reflect on the material conditions for taking such
decisions. The people of Europe are not particularly anxious that the EU should
become accountable to them through their national governments or
parliaments -which are, incidentally, very often subject to similar
problems of legitimacy. In short, European citizens, the ultimate source of
legitimacy, are less interested in the democratisation of the institutions and
far more concerned about the actual ability to take measures, which correspond
to their aspirations. Nobody can demonstrate that the process of
democratisation, as we know it, is a condition for improving the
decision-making process. On the contrary, there are reasons for fearing the
worst.
As an illustration, in the three areas where Community regulatory power seems destined to expand considerably in the near future (economic and monetary union, police cooperation and criminal matters, and foreign policy, security and defence), the Member States have clearly stated their intention not to rely on the normal process of codecision on a proposal from the Commission.147 Therefore, any attempt to bring the decision-making process in these areas closer to the national prototypes, can only contribute -at least for the moment- to an extreme tension which will certainly not serve the progress of European integration.148
All these observations lead to one conclusion: the democratic deficit does not manifest itself so much in the distribution of power among the institutions, but in fact boils down to the confidence that citizens may legitimately have in the decisions of the supranational authorities.149
This can also be seen in the operation of the committees involved in the exercise of the Commission's implementing powers. Under Article 202, the Council lays down the arrangements for the exercise of these powers. In this context various committees (advisory, management, regulatory with their variants) have been created, made up of representatives of the Member States and chaired by the Commission, which must be consulted -the importance of consultation varying according to the type of committee- before the Community executive can take a final decision.150
These committees have proliferated to such an extent (which is why we now talk of "comitology") that theire nomenclature and procedures were first codified in 1987151 and then a second time in accordance with the declaration annexed to the Treaty of Amsterdam.152
This "constitutionalisation" of the committees was the compensation for the Council's concession to delegate to the Commission the widest, ratione materiae, implementing powers and therefore to give up, as a general rule, the possibility of retaining such powers for itself. However, the committees ensured that the national administrations were involved, to a varying extent, in the Commission's decision-making process. The choice of committee was often a battleground between the two institutions, the Commission often proposing purely advisory committees, which increases its decision-making power, and the Council imposing regulatory committees, which allow much more influential involvement of the Member States in the decision-making process. In any event, comitology illustrates the Member States' wish not to hand the executive function exclusively to the Commission and is, therefore, an extra complication for EU institutional balance.153
Comitology became established as a structure separate from the decision-making processes in the framework of the Common Agricultural Policy (CAP) back in the 1960s and was first enshrined in a Court judgment in 1970.154 The system worked relatively well up to the adoption of the European Single Act and the first decision of 1987, when the European Parliament rightly observed its own absence from this decision-making process, but it was unable to convince the Court of Justice.155 What the European Parliament was unable to gain before the Court, it obtained under subsequent interinstitutional agreements, which gave it full access, though for information only, to the documents relating to the procedures concerned.156
According to the recent decision on comitology procedures, the European Parliament is finally, a regular participant in the implementation process both upstream and downstream. Upstream, the Commission has to send it all draft regulations and must take account of its views without being obliged to follow them up. Downstream, following a negative opinion or in the absence of an opinion of the regulatory committee, the Commission must notify Parliament of its revised proposal to the Council. The European Parliament may then state its views to the Council, though the Council is not obliged to follow them up.157
But, at the same time, the role of national parliaments may increase. As was already pointed out, in the EU context, we can predict that "as issues being negotiated become more conflictual and have more immediate impact on constituents' welfare, parliaments should act to create structures to constrain the governments' actions in EU negotiations".158 Governments will therefore be obliged to take into account the potential parliamentary opposition ex ante. Consequently, institutionalized parliamentary engagement within the EU will lead to more credible government commitments.159
The whole history of comitology thus shows the difficult problem of ensuring the legitimacy of a supranational decision-making process. The wish to tie the process, even indirectly, to the Member States is a sign of the same concerns but with the same limits noted above in respect to the parliamentary/majority model.
The attempts to link the process to a European Parliament, which is rapidly enhancing its status, are hampered by that Institution's evident inability to carry out effective ex ante control of the subjects in question. The BSE episode demonstrates that only prior control can be useful and effective, provided that the European Parliament has the necessary expertise to get to the root of the decisions taken:160 the areas covered by the decisions of committees sometimes go beyond even the technical capacity of the specialist departments of the Commission, whose top officials are supposed to chair these committees. The full Commission thus often ratifies decisions without having the means to contradict them and therefore takes on a shaky political responsibility.
The experts on the committees, as representatives of their respective countries, are rather inclined to place the national interest before the Community interest, a tendency which is also apparent, for want of anything better, within the Commission.161 The quality and soundness of the final decisions suffer from this.
Committees also err in their lack of responsibility and transparency. Answerable only to their respective ministers and having unloaded their final responsibility onto the Commission, members have no valid reason to develop an independent scientific expertise, to protect and increase the prestige of their committee, to become the necessary and respected interlocutors of other parallel bodies at the international level or to form networks with such bodies in order to manage latent conflicts, absorb crises and arrive at negotiated solutions, thus saving enormous amounts of work and taxpayers' money.
Their procedures are not explained, their meetings are not public, their visibility to the general public is almost nonexistent. At the same time, they are open to the danger of a double capture by both the lobbies and the political hierarchy162 yet they contribute greatly to an impressive raft of regulations which profoundly affect the lives of individuals and businesses.
It is not surprising that a Dane, for instance, will feel better protected by his national consumer protection association than by grey committees, meeting far away, made up of unknown members and following non-transparent procedures. This is where a large part of the democratic deficit lies,163 despite the fact that these committees are deemed to respect the institutional balance for the sole mechanical reason that the Commission usually ratifies the final decision while the Council reclaims its powers, under the Treaty, in some cases.
Regarding this situation, we can observe that, in a sense, the functionning of these committees proves -a contratio- the usefulness of the agencies.164 In fact, in an era in which public policy becomes ever more complex, the only way for the legislator to make all important policy decisions intra muros would be to concentrate significant amount of authority in the hands of powerful committees. This means more bureaucratic/politically controlled committees inside the European Parliament and further extension of the comitology procedure for the implementing mesures. From some points of view, this would be better than abdication to executive brunch agencies. But, this modus operandi realy results in an aggrandizement of the legislative branch, thus the delegation system allows to divide the labor across the legislative and executive branches of government, so that no one set of actors could dominate the regulatory process. If the concentration of power (legislative and executive) in the hands of one actor "may justly be pronounced the very definition of tyranny",165 limits on delegation would threaten the individual liberties they supposed to protect. We must, in the EU, take this potential danger seriously.
If there is an institutional balance, it has changed dramatically since 1951. It is therefore a mistake to see this as an immutable principle. Such a view only hides a latent and unjustified concern about an imminent and threatening change which is to upset a complicated and delicate distribution of powers.
We cannot otherwise explain how this principle claims to cover the same thing from the ECSC Treaty up to the present day.166
The Treaty of Paris is radically different from the Treaty of Rome in this regard: an Assembly without even an advisory function carried out by an ad hoc committee and a High Authority (Commission) that has more marked regulatory powers but in far more limited areas. It is a truism to say that the ECSC Treaty is infinitely more supranational, in particular as regards the powers of the executive, while being confined to the sectors of coal and steel production. And that is quite normal, as the small number of areas covered allayed the Member States' fears of entrusting management to a supranational Authority (even the name is revealing).
In such circumstances, and despite the fact that we do not agree with all the conclusions drawn from the Meroni case,167 we can more easily explain a spontaneous restrictive approach to the delegation of regulatory powers. The undertakings concerned must enjoy all the protection offered by the Treaty, precisely because of the lack of other democratic-control mechanisms. But would the same judges have said the same thing if the Assembly appointed the High Authority, if it were co-legislator with the Council of Ministers, if the High Authority were competent only to draw up regulatory measures restricted as to content and to the procedure to be followed? I doubt it. And can we, a fortiori, fifty years on, in a radically different situation, be totally attached to caselaw handed down in the conditions described above? Surely not.
In this process of evolution of the various aspects of the institutional balance, the growing politicisation of the actors involved, in particular the Commission and the European Parliament, is, perhaps, the most important factor. The ever-closer involvement of the European Parliament in the legislative process, its right to approve the Commission and its programme, and the increase in the powers of the President of the Commission, have been measures designed to lessen the democratic deficit of the institutions. I do not claim that these measures have done nothing to democratise the operation of the institutions, but I believe they have produced effects that go much further than the object sought. My reasoning is as follows: it is natural for integration to develop more quickly and without obstacles when the areas to be unified are the subject of a broad consensus and are kept outside the divisions of political combat.168 This explains the greater strength of negative integration and perhaps justifies the closed and almost consensual way the regulatory process in the Community works. Curiously, the democratic deficit thus seems to be the price to pay in order to accelerate the European enterprise, in the same way as to maintain national sovereignty.
On the contrary, the introduction of elements of direct democracy in the decision-making process and above all the politicisation of that process, combined with the difficulties inherent in the adoption of positive integration measures, make the process at once more complicated and fundamentally different. At the same time, we are seeing a loss of influence of the Member States in this revised and corrected decision-making process, which reduces the scope of national sovereignty, making it less urgent, not to say unnecessary, to link it with the legitimacy of the Community institutions. We therefore see a tension between the call to reduce the democratic deficit and safeguarding national sovereignty in its entirety. On the other hand, it is certain that the absolute legitimacy of the Community Institutions through their parliamentarisation/politicisation will only be possible after the emergence of the European demos, which clearly will not happen tomorrow. Continuous politicisation is therefore, in the long run, at an impasse; in the meantime, it destabilises the basis of the decision-making process.
This indisputable politicisation shifts the instrumentalist notion of the institutional balance towards a concept closer to the separation of powers in a fledgling federation and towards a system of checks and balances (or of multiple veto-players) in a more mature federal State. It is no longer a principle which is only static/negative, in the sense of an absolute ban on amending a distribution of power deemed immutable, but in view of the latent changes in this balance, it is gradually becoming a dynamic/positive principle.169 Its rationale no longer lies so much in safeguarding a balance of power between the institutions, but in guaranteeing the credibility of their necessary cooperation in the lawmaking process, based on their legitimacy vis-à-vis civil society.
While in a classic parliamentary system the separation of powers basically aims to protect the people from possible tyranny arising from the concentration of all power in the hands of one actor, in a system of dynamic institutional balance or imperfect separation of powers, the wider dispersal of those powers may be an additional guarantee.
The contribution of agencies must be viewed in this context.
In the United States, independent administrative authorities began to exercise a large part of regulatory power towards the end of the nineteenth century. The trend increased during the period of the New Deal and has continued to progress up to the present day. Europe followed the same path half a century later: the first agencies appeared after the Second World War and developed rapidly in the 1970s and 80s. They are now responsible for the majority of public policymaking on both sides of the Atlantic.170
In both cases, agencies were the fruit of experience from a pragmatic approach to the growing problem of the abandonment of whole areas of redistributive policies by central government and deregulation, which created the need for horizontal regulation in several sectors of economic and social life and in controlling the effects of private activity in areas traditionally considered to be the public sector. Their existence was not foreseen by either the US or the EU's Constitutions and their modus operandi was gradually developed thanks to imaginative legislation and innovative legal rulings.
Their particular strength can be seen when it comes to highly technical matters combined with the need to deliver decisions of an almost legal nature. Their main advantage consists in their independence vis-à-vis the executive, which ensures greater continuity in the policy pursued and increased flexibility both in the adoption of decisions and their application to specific cases. Their involvement in controversial sectors and their procedural openness has led to greater transparency, closer association of civil society with the problem involved and improvement in the quality of public debate.171
At the present stage of its development the EU appears to be a pre-federal construction, which, as regards public regulation, faces the same problems as its Member States. At its heart the Commission in fact functions as a super-agency, it has reached the limits of its expansion. The timid creation of the first European agencies of an advisory and executive nature is proof of this, while more recent creation of quasi-regulatory agencies (medicines, patents, plant varieties) underlines this need. The increased demand for real independent administrative authorities (civil aviation, maritime sscurity, food safety) is the first indication of a change in attitudes, which will quickly lead to an overhaul of the regulatory process within the Community.
We have attempted to demonstrate above that the political and legal conditions to move forward have not been met. The two major means used up to now are inadequate: simple communitarisation of state powers and the linear movement of the European institutions towards a national democratic model are not only inadequate but underline even further -if this were necessary- the need for a profound restructuring of the regulatory process.
The creation of agencies with specific statutes and mandates voted on the basis of codecision by the European Parliament and the Council on a proposal from the Commission respects the distribution of powers. By acting as a lunga manu of the European institutions, they contribute to a simplification and increased clarity of their own powers. They also liberate the Commission's duties of policy formulation and target achieving, which are currently stifled under the dual pressure of dealing with a heavy daily workload of technical regulations and improving its internal management. The legislators (Council+Parliament and the Commission exercising regulatory competencies) can, through agencies, avoid some hard decisions they would otherwise have to face, thus making possible the enactment of certain laws that would otherwise be politically infeasible or technically unattainable. So the possibility of delegating to independent agencies produces counterailing forces that make policy movement more rapid when material necessity emerges and more stable and accurate when divergent political interests are at stake. The balance between the Institutions is thus re-weighted and enhanced.
Agencies are also more capable of reinvigorating Article 10 (formerly Article 5) of the Treaty by broadening the scope of cooperation between the national and Community levels and spreading the necessary mutual trust of all actors involved in the regulatory process to similar national organisations and to the Member States' networks of civil society.
By working in close cooperation with the parallel national and international authorities, agencies may contribute to better understanding between the Institutions and the Member States and between the Member States' and the Community's global partners.
Being mid-way between the political institutions and the bodies provided for by the Treaty but which play their own particular role (e.g. ECJ, ECB, EIB), agencies can also contribute to a more harmonious understanding among all the actors in the European enterprise.
As depoliticised bodies anxious to enhance their own public image, agencies seem better able to restore the credibility of the regulatory process and to regain public confidence in its reliability.172
Finally, by freeing an increasingly politicised Commission from this task and networking with the national administrations and relevant bodies in civil society, agencies are likely to maintain a satisfactory and qualitatively superior representation of all social opinions and scientific expertise within the Community regulatory process.173
In short, far from disturbing the institutional balance, agencies seem quite capable of respecting it, enhancing it and following it in its inevitable development.174 At the same time, delegation of some regulatory authority to agencies can be seen more as an europeanization of the administrative activity than as a transfer of power to external bodies. In this respect, the community method remain valid; it is only adapted to the specific conditions of public authorities intervention in our postmodern, heavily regulated societies.
I am convinced that the Court of Justice will have no difficulty in reading this new situation and adapting its caselaw, because, in our opinion, there is no need to change it.
However, the fact of having asked the questions as to the need/advisability and feasibility/legality of agencies within the institutional framework of the EU does not solve the problem of their accountability and democratic control. We will consider this in the final part of this study.
121 This is supported by all the memoranda from the Commission's Legal Service and also by the main literature on Community law. See, for example, Koen Lenaerts: Regulating the regulatory process: delegation of powers in the European Community. ELR, February 1993, p. 23-49, which accepts that agencies are useful but regards them as "internal bodies" in the institutional architecture (p. 40).
122 The recent memorandum of the Legal Service of 29 September 2000, in reaction to the announcement of the White Paper on Governance.
123 D. Triantafyllou, op. cit., p. 306.
124 " ...the possibility of entrusting to bodies established under private law,...". Case 9/56, cited above, p. 151 and 157.
125 Cases 18/62 (Barge v High Authority) [1962] ECR 565 and 30/65 (Macchiorlati Dalmas v High Authority) [1966] ECR 50.
126 Case C-249/87 (Mulfinger v Commission) [1989] ECR 4127.
127 See for example Council Regulation (EEC) No 2081/93, which deals with the allocation of grants to final beneficiaries.
128 Memorandum from the Legal Service JUR(2000)60442 of 20 June 2000.
129 Case 9/56, already cited.
130 Case C-240/90 cited above, footnote 43.
131 On these, see X. Yataganas: L'exécution et le contrôle budgétaires en UE. In Commentaire J. Megret: Le droit de la Communauté Européenne. Les finances de l'Europe, vol.11, ed. ULB, Brussels, 1999, pp. 329-451.
132 Nevertheless, the Commission recently decided (13 December 2000) the further development of these executive agencies, exercising a part of its budgetary powers, until recently considered as undelegable by the Legal Service. See above, note 110. It represents a main breach to the Meroni doctrine, susceptible to have further consequencies for the expansion of the regulatory agencies in the near future.
133 It is the fear of the so-called "agency capture", the danger of an overwelming influence by the big private interests. See, below, p.64-65.
134 Renaud Dehousse: Les avantages et les inconvénients de la délégation à des agences autonomes. Unpublished paper submitted to the "European Governance" task force. March 2001.
135 Philip Raworth: A timid step forwards: Maastricht and the democratization of the EC. ELR, vol.19, 1994, p.16-33. Grainne de Burca: The quest for legitimacy in the EU. MLR, vol. 59, 1996, p. 349-376.
136 See the judgment of 12 October 1993 by the German Constitutional Court (Bundesverfassungsgericht) on the ratification of the Maastricht Treaty, reported in CMLR No 1, 1994, p. 57, and the judgment of 6 April 1998 by the Danish Constitutional Court (Hojesteret) in the Carlsen case. Michael Zürn: Democratic governance beyond the Nation-State: the EU and the other international institutions. EJIntRel, vol. 6, 2000, p. 183-221.
137 Preambule of the Treaty.
138 Especially, all the federalist movements.
139 Renaud Dehousse: European governance in search of legitimacy: the need for a process-based approach. In "Governance in the EU". Ed. European Commission, Luxembourg, 2001, p. 185-205.
140 J. H. Weiler: The transformation of Europe. YLJ vol.100, 1991, p. 2403-2525.
141 A linear extrapolation of the existing system may lead to absurd situations, where a group of States representing the absolute majority of the European population cannot get a legislative text passed within the Council, while another clearly minority group can block such decisions. The recent Treaty of Nice, by adoptig a kind of triple majority system makes the decision making process more difficult. See, X.A.Yataganas: The Treaty of Nice: the distribution of power and the institutional balance in the EU: a continental perspective. Harvard Law School, The Jean Monnet Chair papers, March 2001. www.jeanmonnetprogram.org
142 Philippe C. Schmitter proposes a gradual institutional approach inspired by the Monnet method of small steps. In How to democratize the EU...and why bother? Rowman & Littlefield ed., New York-Oxford 2000.
143 Thomas Saalfeld: Members of Parliament and governments in Western Europe: agency relations and problems of oversight, EJPR, vol.37, 2000, p. 353-376.
144 Werner Ungerer: Institutional consequences of broadening and deepening the Community: the consequences for the decisionmaking process. CMLR, vol.30, 1993, p. 76-83. Tony Blair: Interview in the Financial Times, 23 March 1999. See also the Protocol annexed to the Amsterdam Treaty on the role of the national parliaments in the EU, which, according to most authors, reveals the double legitimacy of the Community decisions emanating from the European Parliament and the national parliaments. Jean -Claude Piris: Does the EU have a Constitution? Does it need one? Harvard Law School, Jean Monnet Chair working papers, 2000. www.jeanmonnetprogram.org
145 G. Majone: Regulatory legitimacy. In "Regulating Europe", op. cit., p.298. But the opposite thesis was also supported, in particular in the field of taxation, where the Member States could manage their tax revenue better and more economically in common, while fully preserving their sovereignty. A.J.Menéndez: Another view..., op. cit. supra, note 13. Dietmar Nickel: The Amsterdam Treaty-a shift in the balance between the institutions!?, who points out that each change of the Treaties it is not a zero sum game and several institutions or all of them may gain , re-establishing the institutional balance at a higher level. Ibid. 1998.
146 J.H. Weiler: Europe after Maastricht. Do the new clothes have an Emperor? As cited by A. Moravcsik in "why the European Community strengthens the State..., op.cit., p. 24.
147 It is intersting to point out, that for the EMU a central European agency, the CEB, was created, thus in the other areas many member States would prefer an intergovernmental cooperation. See, X.A. Yataganas: The treaty of Nice...,op. cit.
148 As it has been pointed out, international organizations are not and probably cannot be democratic. This does not mean that they are undesirable; they are useful bureaucrats bargaining systems. Consequently, it is helpless trying to democratize something that is fundamentaly non-democratic. See, Robert A. Dahl: Can international organizations be democratic? A sceptic's view. In Ian Shapiro and Casiano Hacker-Cordon: Democracy's edges. Cambridge University Press, 1999, p.19-36.
149 P. Schmitter, How to democratize the EU..., op. cit., p. 23-52.
150 According to the general budget of the EU for the financial year 1997 there are over 400 of these committees. OJ L 44/1997, p. 485.
151 Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 197/1987, p. 33.
152 This declaration asked the Commission to submit a proposal amending the previous decision, which it did in 1998. (OJ C 279/1998, p. 5). See now Council Decision 1999/468/EC, OJ L 184/1999, p. 23, replacing Decision 87/373/EEC.
153 Chr. Demmke, El. Eberharter, G.F. Schaefer and Al. Turk: The history of comitology and J.Falke: Comitology and other Committees:a preliminary assessment. In Shaping European law and policy: the role of the committees and comitology in the political process, R.H. Pedler & G.F. Schaefer eds., Maastricht, 1996.
154 Case 25/70 cited above, note 78, and Case 5/77 (Tedeschi v Denkavit) [1977] ECR 1555.
155 Case 302/87 European Parliament v Council [1988] ECR 5615. Case law has since moved on, accepting a limited locus standi for the European Parliament, only where its institutional powers are at stake. Case 70/88 (European Parliament v Council), [1992] ECR I-4193.
156 See the Plumb/Delors agreement of 1988 and, after the Maastricht Treaty and the new Article 189b, the interinstitutional agreement on comitology (modus vivendi) following the Commission's initiative between the three institutions of 1994. OJ. C. 43/1995, p.40.
157 Council Decision 1999/468/EC cited above.
158 Lisa L. Martin: Democratic commitments: legislatures and international cooperation. Princeston University Press, 2000, p.154.
159 See also, K. Strøm: Delegation and accountability in parliamentary democracies. EJPR, vol.37, no3, May 2000, p.261-289.
160 Kieran St. Clair Bradley: The European Parliament and Comitology: On the Road to Nowhere? ELJ., vol. 3, 1997, p. 230-254.
161 The Lord Nicholas Phillips of Worth Matravers report to Tony Blair on the BSE crisis and the responsibilities of the British administration. Le Monde, 28 October 2000, p. 20. Recent pools also indicate that citizens are more confident to scientists than to politicians for dealing with the important questions of environment and health. See, Le Monde, 30 November 2000.
162 The committees have often been criticised for being selectively open to large-scale organised economic interests. Despite some opening up to the public as regards information following the recent decision on comitology, interested parties may not take part in the administrative procedure of the adoption of acts and therefore have very little opportunity to mount a successful challenge to adopted measures once they have been enforced in the internal legal orders of the Member States.
163 P.P. Craig: Substantive legitimate expectations in domestic and Community law CLJ, vol. 55, 1996, p. 289-312.
164 Some authors come, indirectly to the same conclusion, in viewing the committees as a "deliberative supranationalism", or as a "supranational political forum" and proposing mesures enhancing the legitimacy and the democratic function of the comitology procedure. See, Ch. Joerges and J. Neyer. From intergovrnmental bargaining to deliberative political processes: the constitutionalisation of comitology. ELJ, vol.3, September 1997, p. 273-299.
165 Federalist, 47.
166 This fear is even felt by Heads of State and of Government. See the Turin European Council clause in shaping the mandate of the IGC concluded by the Amsterdam Treaty: "...respecting the balance between the institutions..." Nevertheless, this balance was changed at Amsterdam and is continually changing.
167 See above, p. 32-35.
168 Ph. Schmitter: Alternatives for the future of European polity: is federalism the only answer? In M. Tello ed., op. cit., p. 349.
169 It is trugh that a large amount of academic work is based on a lack of knowledge of the realities and the proper functionning of the institutions. See, Ch. Crombez, B. Steunenberg and R. Corbett: Understanding the EU legislative process. Political scientists' and practitioners' perspectives. European Union Politics, vol.1, no3, 2000, p.363-381.
170 For the reasons why Europe was so much later, see G. Majone: The rise of statutory regulation in Europe. In his work Regulating Europe op. cit., p. 46.
171 R. Baldwin and C. McCrudden: Regulation and Public Law. Ed. Weidenfeld & Nicolson, London, 1987.
172 M.A. Pollack: Delegation, agency and agenda setting in the European Community. International Organization, vol.51, 1997, p. 99-134.
173 Ch. Joerges et al. eds. Integrating scientific expertise into regulatory decisionmaking: national traditions and European innovations, Nomos Verlag, 1997.
174 Ellen Vos: Reforming the European Commission: what role to play for EU agencies? CMLR, Vol.37, 2000, p.1113-1134.