Jean Monnet Center at NYU School of Law


1. Introduction

The multiple proposals put forward in the Commission's White Paper on Governance testify to a variety of concerns regarding policy-making in the European Union: a lack of policy effectiveness, poor implementation, the aloofness of the political decision-making process from citizens and the lack of democratic legitimation. These are, without doubt, genuine matters of concern, for which the White Paper proposes multiple remedies. Among these remedies are calls for more consultation and transparency, calls for more and better expertise and calls for the application of new policy tools and for the enhancement of the Community method, namely, the clear allocation of decision-making responsibilities to the Council, the EP and the Commission, respectively. So, comments could focus on any one of these aspects and the viability of proposals addressed to them. From the variety of these possibilities, I have chosen to focus on one aspect from the diverse mixture of recommended remedies, which, I claim, reveals a certain pattern in the response of the Commission. This pattern reflects an attempt on the part of the Commission to assert and reposition itself in the system of interinstitutional decision-making and, indeed, to regain lost ground. Why lost ground? I will argue that under the new co-decision procedure that was established by the Amsterdam Treaty (Article 251 TEU), there has been a subtle shift in the weight of inter-institutional decision-making in favour of bilateral relationships between the Council and the Parliament, sidelining the Commission. Many of the proposals in the White Paper may be read as attempts to counteract this development. More specifically, the attempts of the Council and EP to come to "early agreements" under the new co-decision-procedure and to conclude legislation at first reading led to a plethora of ad-hoc informal meetings between the Council and EP members, without including Commission members.

In order to make up for the lost ground, the Commission proposes a variety of measures, including the use of "new tools of policy-making", which are not predicated on legislation, such as co-regulation with private actors and the new method of open co-ordination. To the extent that the path of legislation has been chosen, the Commission intends to use its right to legislative initiative more strategically so as not to lose its leverage in the decision-making process. It also proposes that the role of the Council and the European Parliament in legislation should be drastically limited: they should set the essential features of policy-making, namely, the framework legislation, while the regulation of all details should be left to the Commission. And even more: in fleshing out the legislative framework decisions, the Commission would wish to be less hampered by comitology. Additionally, according to the White Paper, executive regulatory activities should be delegated to new regulatory and executive agencies, the latter being controlled by the Commission.




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