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Misfits: EU Law and the Transformation of European Governance

Renaud Dehousse ^*

• 1. The Transformation of European Governance
• 2. Comitology: Intergovernmental Control or Deliberative Networks?
  • A. Government by Committees and Institutional Politics
  • B. Who watches the Watchmen? The Need for New Legal Constructs
• 3. European agencies: Delegation v. Accountability?
  • A. The Growth of European Agencies
  • B. Meroni and the non-delegation doctrine
• 4. Structuring the Interface between Scientific Expertise and Political Decisions
  • A. Giving Science a Say
  • B. Structuring Scientific Deliberations
• 5. Conclusion: Lost Boundaries

The analysis of European integration is informed by deeply-anchored views of the ways in which public policy unfolds at the European level. The interpretation of the treaties, shaped by decades of decisions of the European Courts, has given birth to a kind of vulgata that is rarely called into question. Interaction among the main institutional players - the Commission, Parliament and the Council - is held to be the key element in the decision-making process. Hence, inter alia, the importance of the concept of `institutional balance' (discussed in the contribution of Lenaerts and Verhoeven in this volume). Adoption of legislative instruments is the integration technique par excellence: it was through the 300 or so directives contained in the 1985 White Paper on the Single Market that barriers to intra-Community trade were to be dismantled and, even today, legislative activity is the main parameter by which we measure the growth in the scope of EU activities.¹ Implementation of EU policies is constrained by choices made in the legislative phase; it is thus perceived to be of secondary importance and generally receives less attention. Classical views about institutional balance simply stress that, in theory, the implementation of EU policies remains in the hands of national administrations.²

This legislative bias is equally pervasive in normative assessments of EU policies. One generally discusses legitimacy issues in relation to legislative activities: the classical description of the `democratic deficit' rests entirely on the role played by legislative assemblies in decision-making procedures.<sup>3</sup> The European Court of First Instance has also made the clear suggestion that alternative forms of legitimization - such as the participation of management and labour representatives in decision-making processes - mattered only `in the absence of the participation of the European Parliament in the legislative process'.⁴

However, a gradual shift has occurred in European governance in the wake of the single market program. The European Union has assumed new tasks that are largely linked to what is increasingly referred to as `risk regulation'; that is, the assessment and management of risks that may result from natural events or human activities.⁵ It has also become apparent that - unlike the mere removal of trade barriers - managing a single market entails a degree of positive action that does not always fit within the neat legal categories inherited from the past. New actors have emerged, such as European administrative agencies and others, such as intergovernmental committees, have seen their roles deeply transformed . Scientific expertise has acquired an unprecedented level of importance. Traditional legal categories have therefore ceased to adequately reflect the actual operation of the EU's machinery. How should one react to this mismatch between law and reality? Should one return to the purity of the classical model? Or has the time come to envisage a paradigmatic shift?

This contribution tries to address these issues. It is organized as follows. Section 1 highlights the main transformations occurring in European Union governance. The next sections try to demonstrate the growing gap that has emerged between new patterns of governance and traditional legal analyses. It does this by focusing on three sets of issues: comitology (section 2); the powers that can be conferred on specialized European agencies and other bodies whose existence was not contemplated by the EC Treaty (section 3); and the role of scientific expertise (section 4). Section 5 returns to the discrepancy between legal perceptions and functional realities.

* Institut d'études politiques, Paris

1 Mark A. Pollack, `The End of Creeping Competence? EU Policy-Making since Maastricht', 38 JCMS 2000, 519-38.

2 See the submissions of the German government in case C-359/92, Germany v. Council, [1994] ECR,p.I-3681

3 Resolution of the European Parliament on the Democratic Deficit OJ C 87/89 of 18 July 1988.

4 Case T-135/96, UEAPME v. Council, [1998] ECR II-2335 at 89.

5 S. Breyer, Breaking the Vicious Circle. Towards Effective Risk Regulation, Harvard University Press, 1993.

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© 2002 Renaud Dehousse