Jean Monnet Center at NYU School of Law


3. Proposals to regain ground

In view of these increasing bilateral informal negotiations between the Council and the EP, it is not surprising that, in the White Paper, the Commission stresses a variety of measures which tend to enhance the role of the Commission in policy-making. It directly addresses "early agreements", briefly stating that they serve to speed up the legislative process: "...In appropriate cases, the Council and the European Parliament should attempt to agree to proposals in one rather than two readings with the assistance of the Commission (emphasis added). This may reduce the time needed to adopt legislation by 6 to 9 months" (White Paper 2001:22).

An additional range of proposals in the White Paper may be interpreted as an attempt to regain clout in the inter-institutional decision-making process: the avoidance of legislation, in the first place, and the resort to other policy tools; the strategic use of the right to withdraw legislative proposals; the restriction of legislation to essential features and the restriction of comitology; and, finally, the use of regulatory and executive agencies.

The White Paper proposes several policy tools outside or alongside legislation, arguing that they would render policy-making more effective. One tool engages in co-regulation in order to prepare implementing measures of framework legislation. "Coregulation combines binding legislative and regulatory action with actions taken by the actors most concerned, drawing on their practical expertise." (White Paper 2001:21). The White Paper, however, formulates certain conditions under which co-regulation should be used. It offers "a framework of overall objectives, basic rights, enforcement and appeal mechanisms, and conditions for monitoring compliance." (White Paper 2001:21). Co-regulation should only be applied if it does not make sense to apply uniform rules across Member States. Furthermore, participating organisations should be "representative, accountable and capable of following open procedures in formulating and applying the agreed rules." (White Paper 2001:21).

An additional new policy tool proposed is the "open method of co-ordination", inviting co-operation and the exchange of best practice in view of common targets, on the basis of national action plans. However, the Commission stresses that it should not be used if legislative action under the Community method is possible. When such legislative action is not possible, "the Commission should be closely involved and play a co-ordinating role" (White Paper 2001:22). It also emphasises that their should be regular reporting to the EP.

Both tools, co-regulation and the open method of co-ordination, have features that may lend them a political and instrumental capacity superior to legislation, but they have disadvantages, too (see Héritier 2001). There is less political resistance from those who bear the costs of implementation - namely, from private actors, such as industry in the case of co-regulation, or Member States in the case of the open method - because in the context in which the new tools have developed, these actors have a say in shaping the policy goals and the instruments to be used. The instrumental capacity may be higher because, given that the implementors are part of the policy-formation process, the incentives of those responsible for implementation are taken into account in the process. At the same time, this instrument offers less legal certainty and is criticised for representing groups one-sidedly. What matters here, however, is that the Commission, in its own proposal, repeatedly emphasizes the institutional role it wants to play in the application of these tools.

To the extent that legislation is chosen to shape policies, the Commission, at the substantive level, stresses that it is important to choose "the right form of regulatory act". (White Paper 2001:20); at the procedural level, it stresses that it wants to use its own right of withdrawal more strategically in order avoid losing clout in shaping "their proposals". With regard to the first level, it proposes two things: to use more regulations and more framework legislation (White Paper 2001:5). Regulations should be invoked in order to achieve the completion of the internal market. The increased use of regulations would help avoid the "delays associated with [the] transposition of directives into national legislation." (White Paper 2001:20). If this proposal were followed in fleshing out the details of European legislation, it would clearly reduce the influence of national governments and parliaments.

The second measure is to use more framework directives that offer greater flexibility in implementation. "Whichever form of legislative instrument is chosen, more use should be made of ´primary` legislation limited to essential elements (basic rights and obligations, and the conditions to implement them) leaving the executive to fill in the technical details by implementing ´secondary rules`." (White Paper 2001:20). Here the Commission claims the role of specifying essential primary legislation, thereby significantly widening its own role.

This is directly linked to the role of the Member States in implementing the existing legislation: "One of the biggest sources of concern is the tendency of Member States, when implementing Community directives, to add new costly procedures or to make legislation more complex." (White Paper 2001:23). Instead, the Commission proposes establishing implementation networks based on "target-based, tripartite contracts". As they have emphasized, "Such contracts would be between Member States, regions and localities designated by them for that purpose, and the Commission (emphasis added). Central government would play a key role in setting up such contracts and would remain responsible for their implementation....The contract should include contracts for monitoring" (White Paper 2001:13). So, here again, the Commission is clearly carving out a new role for itself in all areas of implementation, a role which has hitherto been reduced to selected policy areas.

In the context of legislation, the Commission also proposes that its right of initiative and right to withdraw proposals should be used in a more strategic and targeted manner. In particular, proposals should be withdrawn "where interinstitutional bargaining undermines the Treaty principles of subsidiarity and proportionality or the proposal's objectives" and where the Council and the European Parliament do not stick to the essential elements of legislation and are "overloading or over-complicating proposals." (White Paper 2001:22).

The new division of labour in legislation envisaged by the Commission is underlined by its proposal to reform the work of comitology, leaving only essential aspects of policy-making to the Council and the EP on the one hand, while leaving all the details to the executive (namely, the Commission), on the other. The White Paper proposes abolishing regulatory and management committees. The reconsideration of the present committee system "should lead to modifying Treaty Article 202, which permits the Council alone to impose [a] certain requirement on the way the Commission exercises its executive role." (White Paper 2001:31). Here, the Commission seeks an alliance with the EP, who - under its enhanced role in legislation under the auspices of the new co-decision procedure - claims a similar role in controlling the execution of legislation to that which is presently exercised by the Council.

Another measure proposed in the White Paper is designed to increase policy effectiveness: namely, the establishment of additional regulatory agencies beyond the 12 that now exist. These new agencies should operate within a clearly defined framework, defined by the legislature. They should not be granted decision-making power in general regulatory measures, but solely in individual decisions "where a single public interest predominates and the tasks to be carried out require particular technical expertise (e.g., air safety)." (White Paper 2001: 24); but agencies, according to the Commission, "cannot be given responsibilities for which the Treaty has conferred a direct power of decision on the Commission." (White Paper 2001:24).

Additionally, the Commission has proposed a communication and a regulation which lay down the framework for the work of ´executive` agencies under the Commission's control. "This means using external executive agencies rather than Commission resources [for] management tasks [related to] spending programmes" (White Paper 2001:30).

In brief, it is clear that the White Paper seeks to widen the decision-making role of the Commission: It enhances the Commission's role in the application of new tools, and insists that legislation by the Council and the Parliament should be restricted to essential features, while the particulars should be directed to the Commission. At the same time, it aims to reduce back the role of comitology, which is precisely the Council's instrument of control over Commission implementation.




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