The past fifteen years have seen a deep transformation in the way in which the European Union functions. Some elements affect the whole range of European activities, albeit to different degrees. A good example is the emergence of the European Parliament as a key actor in European policy-making. Other transformations can be seen as the result of a shift in the kind of tasks undertaken by the European Union.
While European integration has long been associated with market unification, there has been a significant expansion in the nature of EU activities. The EU has moved beyond the realm of economic regulation into areas such as environmental and consumer protection, and health and safety issues. Although this expansion process was initially founded on a rather tenuous legal base, it has been ratified by successive Treaty changes: the Single European Act, and the Maastricht and Amsterdam Treaties consolidated European intervention in the area of social or risk regulation.6 First, they explicitly recognized the competence of the European Community to deal with these issues, and second, they brought about a gradual shift to qualified majority voting that simplified decision-making. The reasons for this gradual Europeanization of regulatory policies are simple. The division of labour outlined in the Treaty of Rome - with the European Community focusing on economic integration while social regulation remained primarily under the Member States' control - resulted in de-regulatory pressures as the EC set out to dismantle non-tariff barriers to trade. It therefore emerged that the only way to reconcile market integration with ambitious social regulation programs, and to thus avoid trade distortions, was to develop such programs at the European level. Combined with the fact that European firms often prefer to comply with a single European rule rather than fifteen different rules, this element generated growing pressures in favour of the development of European regulation.
This transfer of powers from the national to the European level has been accompanied by a transformation in the conduct of European policies. The prototype of European interventions were primarily of a legislative kind; the `approximation of laws' contemplated in the EC Treaty. Yet the classic dichotomy between legislation (assumed to deal with broad principles) and implementation (understood as the mere application of those principles) is particularly ill-suited to activities undertaken by public authorities in a risk regulation framework. By their very nature, the problems dealt with in such a framework cannot all be anticipated in the legislative phase; the precise nature of the hazards, the likelihood that they will materialize, and the kind of response they will require are often fairly uncertain. Not only will the technical nature of the likely problems require use of expert knowledge at various stages of the process but, equally importantly, implementation decisions often acquire a significant political salience. Consumers are more likely to show interest in an administrative decision about whether or not to authorize the marketing of Viagra, than in a decision about the adoption of broad (legislative) principles spelling out the safety and efficacy conditions that a pharmaceutical product must satisfy before it can be licensed. In other words, risk regulation has lead to the development of a new kind of function - `political administration'7 - that is not easy to fit into the classic categories of public law. In an integrated market, this function must clearly be exercized in a uniform - though not necessarily centralized - fashion, lest dismantled legislative barriers are replaced by newly emerging administrative obstacles. At the very least, a convergence of scientific risk assessment and administrative practices is required.8
Interestingly, the years following the completion of the single market program have seen a marked decline in the volume of primary legislation (that is, of new legislative initiatives), adopted by European institutions, as is demonstrated by Figure 1. Although the total number of directives and regulations has remained fairly stable, this is largely due to the fact that implementation decisions - the functional equivalent to delegated legislation at the European level - often have the same form as primary legislation because Community law ignores any clear hierarchy of norms. The data shown in Figure 1 can therefore be read as confirming that a large number of EU decisions are now being made in the post-legislative phase.
Proposals for primary legislation introduced by the European Commission
Sources: Reinforcing Political Union and Preparing for Enlargement, Commission Opinion for the Intergovernmental Conference 1996, 1995, p.87, for years 1990-1995; COM (95) 512 final for year 1996; SEC (96) final for year 1997; for year 1998; tp://europa.eu.int/comm/off/work/1999 http://europa.eu.int/comm/off/work/2000 for year 2000.
This shift is far from being merely formal. It suggests that important decisions are now taken by other actors - technocrats (be they bureaucrats or scientific experts) instead of politicians - and according to procedures that do not necessary allow for the degree transparency or citizen participation required by a democracy. The problem is compounded at the European level by the fact that risk regulation is at the crossroads between national and EU competencies, and intermediate structures had to be established in order to bridge the gap between the two levels. The evidence suggests that the importance of these structures is growing: ten European agencies have been created over the last decade9 to connect national administrations with a (modest) European structure, and the frequency of committee meetings appears to be increasing.
Europe is therefore confronted with a phenomenon akin to the emergence of what some American authors have described as a technocratic `fourth branch of government'.10 There are clear differences between the two shores of the Atlantic: in the EU, the distinction between legislative and executive functions is far from being as clear cut as that in the United States (where each function is given to a different branch of government).11 Similarly, US administrative law has struggled to define the proper status of federal agencies whereas European technocratic structures have a clear multilevel character, given their role as a connecting device between the EU and national administrations. Notwithstanding these differences, the growing importance of technocratic governance has given rise to serious legitimacy concerns in both cases. It has also represented an analytical challenge for legal systems that were accustomed to regard administrative decision-making as necessarily constrained by the will of the legislator.12 The aggiornamento is still to be done in the EU context: legal treatment of technocratic governance structures remains informed by a somewhat dated view of their role, as we shall now see.
6 The Phenomenon has been analyzed in G. Majone, Regulating Europe, London: Routledge, 1996
7 Joerges, `"Good governance" trough Comitology ?' in C. Joerges and E. Vos (eds) EU Committees: Social Regulation, Law and Politics (1999) 309-338 at 322, referring to the work of Rudolf Wiethölter.
8 See Dehousse `Regulation by Networks ; The role of European Agencies', 4 Journal of European Public Policy, (1997), 246-61 ff for further developments.
9 Majone, `The New European Agencies: Regulation by Information', 4 Journal of European Public Policy, vol 4, 1997, 262-75.
10 Strauss, `The Place of Agencies in Government: Separation of Powers and the Fourth branch of Government', 84 Columbia Law Review (1984) 573-669.
11 See the contribution by Lenaerts and Verh_ven in this volume.
12 As regards US Administrative law, the locus classicus is Richard Stewart, `The Reformation of American Administrative Law', 88 Harvard Law Journal (1975) 1667-1813.