Jean Monnet Center at NYU School of Law


5. The Heroic Commission

However, the main emphasis of the White Paper is not on majority rule or the democratisation of the Union; it is on enlarging the role of the Commission at the expense of the roles of the governments of the Member States. Nevertheless, some of the practical and normative objections just mentioned apply here as well. The critical proposal would restrict the legislative role of the Parliament and the Council to a definition of "essential principles", and then leave the specification of "technical detail" to the unfettered discretion of the Commission. Given the diversity of the economic conditions, political cultures, institutional structures, policy legacies and public attention among the Member states, it seems inevitable that many policy choices below the level of "essential principles" will have high political salience and might be totally unacceptable in one country or another. At present, these pitfalls are avoided by the search for consensual solutions that avoid incompatibilities with specific national constraints by means of elaborate intergovernmental negotiations that take place in the preparatory phase before a Council decision, as well as in the implementation phase.

In the preparatory phase, this search is carried on in the multitude of specialized committees organized by the Council Secretariat, whose deliberations are then fed into the Committee of Permanent Representatives (COREPER), where most potential conflicts among Member State governments are ironed out before they reach the Council agenda. The White Paper, however, proposes that the Commission should protect the integrity of its legislative initiatives by withdrawing them whenever the outcome of "inter-institutional bargaining would undermine ... the proposal's objectives" (p. 22). In other words, the Commission is threatening to use its Treaty-based monopoly of legislative initiatives to short-circuit consensus-seeking procedures and to confront both the Council and the Parliament with take-it-or-leave-it propositions.

Of equal importance is the phase of "implementing" Council decisions which need further specifications before they can be directly applied. This function may be performed by the Council itself, it may be delegated to the Commission, or it may be left to the Member States. In practice, delegation to the Commission has become the preferred procedure, but it is generally combined with the establishment of a "Comitology" committee in which regulations proposed by the Commission need to be discussed with civil servants and experts nominated by Member State governments. In two of the variants of Comitology (which the White Paper would abolish), "management committees" and "regulatory committees" that disagree with a Commission proposal have the possibility of appealing to the Council for a final decision. Even though this option is almost never used in practice, it acts as a "fleet in being" that forces the Commission to take objections seriously and to search for consensual solutions in the implementation phase as well. It is precisely this function that the White Paper proposes to eliminate by abolishing management and regulatory committees (p. 31).

The White Paper is, of course, right in suggesting that the outcomes of consensus-building procedures leave much to be desired if judged by efficiency criteria. Decision processes are cumbersome and slow, and their outcomes are likely to be sub-optimal in one of two characteristic ways: on the one hand, the high aspirations of the original Commission initiatives are likely to be watered down because of the need to eliminate provisions that would violate specific national concerns. On the other, originally lean Commission drafts may become bloated because of the need to accommodate cumulative requests for the insertion of additional provisions which satisfy specific national demands. Moreover, European decision processes tend to be over-specialized and, hence, poorly co-ordinated. In short, the European policies produced by consensus-seeking procedures are often of a kind which not even their progenitors could love, and it is also true that the Commission, or "Brussels", rather than the national governments, generally gets to be blamed for them. Consequently, it is easy to sympathize with the desire of the Commission to liberate itself from these uncomfortable constraints. But it must also be obvious to anybody outside of the Commission that the solution proposed by the White Paper - which would essentially replace consensus-seeking procedures with the unilateral powers of the Commission - cannot work in practice and would not be normatively acceptable even if it did.

At a practical level, the Commission's threat to withdraw initiatives when they are in danger of being changed by intergovernmental negotiations would backfire if the Council, or even a blocking minority of Member State governments, equally rejected all Commission initiatives which, in their original form, did not respond to the objections and demands which would otherwise be introduced in consensus-seeking negotiations. In other words, in a decision system with multiple veto positions, confrontation strategies can, in principle, be played by all parties - and if they are played by all, a gridlock is the most likely outcome. By the same token, it is hard to see how the Commission could force Member States to accept the abolition of the Comitology system and leave legislative choices entirely to its own discretion in the "implementation" stage.

But apart from practicalities, the White Paper's proposals would be problematic from a normative point of view. They would explicitly and visibly destroy what is left of the indirect-democratic legitimation of European policies that is derived from the agreement of democratically elected national governments, and they would do nothing at all to strengthen either the direct responsibility of the European Parliament for substantive policy choices or the political accountability of the Commission to the Parliament (assuming, for the sake of argument, that politically salient European policy choices could be legitimated by votes taken in the present EP). In short, the greatly enhanced role of the Commission envisaged by the White Paper is not that of a faithful agent of either the Council or the Parliament. Instead, what the authors have in mind amounts to the creation of a benevolent dictatorship.

Undoubtedly, it is meant to be a well-informed, highly sensitive and very open form of dictatorship. With regard to the preparation of policy initiatives, the White Paper is replete with promises of more communication, wider involvement, wider participation and wider consultation, and (in a remarkable reversal of the assignment of principal-agent roles in democratic theory) it even proposes that the Commission should take care that "civil society itself must follow the principles of good governance, which include accountability and openness" (p. 15). In return, the Commission would allow privileged "partnership arrangements" involving "additional consultation" with civil society organizations that conform to its requirements (p. 17) - without, however, committing itself to binding "corporatist" agreements. The list of potential partners that the authors have in mind is truly comprehensive, including the Economic and Social Committee, the Committee of Regions, individual regions, cities and localities, trade unions and employers' associations, professional associations, churches and charities, network-led initiatives and grass roots organizations - practically everything and everybody that one could think of, or wish for, if Commission manpower, time and attention were not scarce resources. But since these are, in fact, extremely scarce resources, one cannot but wonder what would happen if the Commission's invitations were, in fact, taken seriously by most, or even by many, of the "civil-society" actors all over Europe to whom they seem to be addressed. Or, since not a word is lost on the practicalities of Europe-wide participation, one might wonder about the seriousness of the invitation itself.

It is also worth noting, however, that democratically legitimated national governments are not included among the lists of participants whom the Commission intends to consult in the preparation of its legislative initiatives. On the implementation side, the White Paper similarly envisages more intense partnership relations between the Commission and non-governmental organizations. Thus, co-regulation arrangements are supposed to allow "the actors most concerned" (presumably, industrial associations) to take responsibility for the preparation and enforcement of rules within a framework of "binding legislative action". In order to qualify, the organizations participating "must be representative, accountable and capable of following open procedures in formulating and applying agreed rules" (p.21). Here, however, national and subnational governments (which meet all these criteria, or so one should think) would also get a role in "target-based tripartite contracts" involving a Member State, a regional or local authority and the Commission, in which the subnational authority would undertake to realize particular objectives in the implementation of primary legislation (p. 13). In this case, national governments would be held responsible for the implementation of the contract - but there is no question that its terms would be defined by the Commission. Since these target-based contracts would necessarily have to be selective, one wonders what they would do to the integrity of orderly national structures of regional and local government and administration, or what it would cost to bribe national governments into sharing what authority they may have over regional and local governments with the Commission.

None of my comments are meant to deny that the White Paper includes many useful suggestions. What is basically wrong with its vision, however, is the image it projects of the Commission as the lone hero of European policy-making and implementation - a role that is reminiscent of French-style executive centralisation, but for whose emulation the Commission lacks both legitimacy and institutional capacity at the centre and effective control over an efficient administrative infrastructure at regional and local levels. This heroic self-image of the Commission seems to be complemented by a deep distrust of the Member States, whose role in policy-making and implementation the White Paper seeks to have reduced or bypassed wherever possible. In my view, this reflects not only an inflated image of the Commission's capabilities, but also a disturbing lack of understanding of the preconditions of successful multi-level governance in Europe.




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