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In the 1980s and 1990s, comitology scored poorly on both accountability to democratic institutions and public participation. For lawmakers to hold the bureaucracy accountable they must know what it is doing. Comitology, however, was shrouded in secrecy, preventing one of the Community's legislative principals, the European Parliament, from keeping an eye on national and Community officials. Although a series of interinstitutional agreements required the Commission to communicate proposals, draft comitology committee agendas, and committee voting results, they proved unsatisfactory.43 Parliament claimed that, contrary to the terms of the agreements, the Commission failed to communicate all important proposals or did so too late, preventing Parliament from exerting any influence.44
Even assuming adequate information, Parliament did not have the tools necessary to influence the course of rulemaking. Formally, Parliament's institutional role in policy implementation was minimal. Under the Modus Vivendi signed by Parliament, the Council, and the Commission in 1994, Parliament's views on proposals intended to implement co-decision legislation were to be "[taken] into account to the greatest extent possible" by the Commission and, in the event of a negative parliamentary opinion, an attempt was to be made "in the appropriate framework" to find "a solution." Informally, Parliament could pressure the Commission to modify implementing rules by putting oral questions to the Commission and voting resolutions in plenary sessions or by resorting to its budgetary powers, for instance putting the Commission's funding in reserve subject to the satisfaction of certain conditions. While the Modus Vivendi duty to take into account Parliament's views and parliamentary questions were weak means of influencing implementation, the budgetary power was a blunt instrument that could only be called upon in situations where Parliament and the Commission were truly at loggerheads.
Somewhat counter to popular perception, the Council -- before and after the reform passed in June 1999 -- is not much better situated than Parliament to hold Community administration accountable. Even though experts on comitology committees are supposed to represent their member states, national executives are hard put to control the work of their civil servants in Brussels. Domestically, even if ministry employees were to favor, say, a tough environmental regulation that imposed considerable costs on industry, they could expect to face opposition from political appointees who would not only be the object of direct industry lobbying but would also be mindful of their party's position (and industry's clout within the party). The very same civil servants, even though they might be sent with strict instructions, once in Brussels collectively decide matters with other environmental policy experts and, apart from the rare occasions upon which the Council is called upon to intervene, without any direct political supervision. They are, therefore, more likely to consider the environmental protection goal as paramount, at the expense of other, legitimate policy objectives. National control through the Council is even more difficult. Because comitology committees rarely issue negative opinions, implementing measures are generally not sent to the Council for a different decision or veto. The risk, therefore, is a cozy partnership between the Commission and national experts that is accountable to neither the Parliament nor the Council, or in other words a Community agent that escapes the control of its lawmaking principals.
In the 1980s and 1990s, comitology also scored poorly on public participation. The public had notice only once a final rule was passed. Furthermore, the information provided on the scientific and policy issues decided in rules was scanty. And even if interested parties had been fully informed, they would not have had -- and still do not have -- a right to participate in the administrative process. As continues to be the case, only rarely, in enforcement proceedings, can interest groups challenge rules in court.
During the 1990s, dissatisfaction with comitology led to a series of attempts at reform that culminated, in June 1999, in a Council Decision revamping Community rulemaking procedure. The proposals and the reform that resulted focused for the most part on improving accountability to Parliament, with considerably less attention to public involvement in comitology. As described in greater depth below, Parliament was the main winner, while the public has obtained greater access to information but has not been given participation rights.
Information and a greater institutional role for Parliament in comitology were the main accomplishments of rulemaking reform. Parliament progressively received more information on implementing rules: in 1988, the Commission began forwarding all important comitology proposals,45 in 1993, all proposals relating to the administration of structural funds,46 in 1994, all draft implementing measures,47 and, in 1996, draft committee agendas and aggregate results of votes taken in management and regulatory committees.48 In 1998, responding to a call made at the Amsterdam Intergovernmental Conference for comitology reform,49 the Commission issued a proposal providing that:
The European Parliament shall be informed of committee proceedings on a regular basis. To that end, it shall receive agendas for committee meetings, draft measures submitted to the committees for the implementation of instruments adopted by [co-decision], and the results of voting. It shall also be kept informed wherever the Commission transmits to the Council measures or proposals for measures to be taken.50
In May 1999, Parliament approved the Commission's proposal, subject to numerous amendments, among which was one giving greater access to information. The amendment would have required the Commission to also transmit summary records of committee meetings, attendance lists, and timetables, and would have required the Commission to forward the material at the same time as it sent it to the comitology committees. In the measure that was eventually passed, Parliament received almost everything it asked for:
The European Parliament shall be informed by the Commission of committee proceedings on a regular basis. To that end, it shall receive agendas for committee meetings, draft measures submitted to the committees for the implementation of instruments adopted by [co-decision], and the results of voting and summary records of the meetings and lists of the authorities and organizations to which the persons designated by the Member States to represent them belong. The European Parliament shall also be kept informed whenever the Commission transmits to the Council measures or proposals for measures to be taken.51
Now Parliament also has a greater formal role in comitology procedure. In the 1994 Modus Vivendi, Parliament obtained a rather weak commitment from the Commission and Council to take into account and accommodate, insofar as possible, its views on implementing measures.52 A proposal put forward in 1995 recommended that the Commission and comitology committees pass implementing measures subject to a veto from either the Council or Parliament, a veto that would send the matter to the full legislative procedure.53 The Commission's 1998 proposal would have revised the regulatory committee procedure to eliminate the Council and would have required the Commission, upon a negative committee opinion (or if no opinion was delivered), to follow the legislative procedure set out in the Treaty, thus respecting both Parliament's and the Council's legislative prerogatives.54 Not satisfied, Parliament sought the right to veto all implementing measures adopted under co-decision legislation, regardless of the opinion issued by the comitology committee, positive or negative.55
As described earlier in this section, in the Comitology Decision that was eventually passed, Parliament obtained formal powers that it may exercise regardless of the opinions issued by comitology committees. Parliament may declare that a draft Commission implementing measure based on co-decision legislation exceeds the authority delegated in the legislation, in which case the Commission must "re-examine" the draft measure.56 In the regulatory procedure, if the Commission submits a proposal to the Council, Parliament may inform the Council that the proposal would exceed the authority conferred in the enabling legislation. The Council is under a duty to act "where appropriate in view of any such position."57 Neither the Commission nor the Council appear to be bound by Parliament's position. These powers, therefore, fall short of those Parliament originally demanded since it still cannot block implementing measures.
Even though Parliament was a winner in this round of comitology reform, it still is hard put to monitor and control the Community's bureaucrat. First, the information communicated by the Commission must be processed to check for objectionable policy choices and questionable scientific decisions. Yet Parliament does not have the staff and resources necessary to undertake this considerable task, either on its committees or in the parliamentary secretariats that assist the committees. Second, Parliament's power to find that a draft measure or Commission proposal exceeds the authority conferred in the enabling act, falls short of a veto power. Third, a majority vote in Parliament is a time-consuming process that will only be used in cases of highly publicized policy issues that parliamentarians feel they cannot ignore.
Somewhat surprisingly, given that neither the Commission nor Parliament drafts paid much attention to the general public, the Comitology Decision of 1999 guarantees certain information rights. First, the Decision makes clear that Community procedures that enable citizens to obtain access to Commission documents also apply to comitology.58 Second, the Commission is required to publish a list of all comitology committees and an annual report on the committees' operations.59 Lastly, in 2001, the Commission must establish a public register containing references to all documents transmitted to the European Parliament. Presumably, therefore, members of the public will be informed of the status of rulemaking proceedings through the register and will be able to request from the Commission copies of draft measures, summary records of committee meetings, and other information.
The improvements in parliamentary involvement and public information contained in the Comitology Decision of 1999 are significant. Yet still, the Community's legislative branch is unable to adequately control Commission rulemaking and interest groups cannot participate in the implementation process. As in American notice and comment rulemaking, the public should have immediate access to draft measures and should be allowed to submit comments to the Commission. By enlisting private actors as third-party monitors in the principal-agent relationship, Parliament would be able to control better the comitology process. Interest groups would be able to process the large quantities of information that will now be transmitted to Parliament far more effectively than Parliament's own under-staffed secretariats and committees. Moreover, the right to comment on draft measures would ensure that Commission officials are unable to lock out, downstream in the policymaking process, groups that participate in the pluralist legislative process.
43 See Commission's Undertaking of 26 September 1996, Budget Resolution of October 1996; Modus Vivendi, 1996 O.J. (C 102) 1; Klepsch-Millan Agreement of 13 July 1993, 1993 O.J. (C 255) 19; Plumb-Delors Agreement of 1988.
44 See Kieran St. C Bradley, "The European Parliament and Comitology: On the Road to Nowhere?," 3 European L. J. 230, 237 (1997).
45 Plumb-Delors Agreement of 1988.
46 Klepsch-Millan Agreement of 13 July 1993, 1993 O.J. (C 255) 19.
47 Modus Vivendi, 1996 O.J. (C 102) 1.
48 Commission's Undertaking of 26 September 1996, Budget Resolution of 24 October 1996, 1996 O.J. (C 347) 134.
49 A declaration made at the Amsterdam Intergovernmental Conference "calls on the Commission to submit to the Council by the end of 1998 at the latest a proposal to amend the Council decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission." 1997 O.J. (C 340).
50 Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission, art. 7.3, 24 June 1998, COM (l998) 3 80 final.
51 Council Decision 1999/468/EC, art. 7.3, 1999 O.J. (L 184) 23, 25.
52 Modus Vivendi, 1996 O.J. (C 102) 1.
53 See Kieran St. C Bradley, "The European Parliament and Comitology: On the Road to Nowhere?," 3 Eur. L. J. 230, 241 (1997) (describing proposal put forward in Westerdorp Group Report of December 1995).
54 Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission, art. 5, 24 June 1998, COM(1998) 380 final.
55 Resolution on the modification of the procedures for the exercise of implementing powers conferred on the Commission--'commitology' (Council Decision of 13 July 1987), art. 2(b), Sept. 16, 1998.
56 Council Decision 1999/468/EC, art. 8, 1999 O.J. (L 184) 23, 26.
57 Council Decision 1999/468/EC, art. 5.5 & 5.6, 1999 O.J. (L 184) 23, 25.
58 Id. art. 7.2.
59 Id. art. 7.4.
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