23rd Mar 2023

McCreevy trying to bypass democracy, MEPs say

  • "They are circumventing the democratic process and we are furious," German conservative MEP Doris Pack said (Photo: EUobserver)

The European Commission is trying to bypass democracy by using soft law instruments called "recommendations" to shape the EU's internal market, MEPs accused single market commissioner Charlie McCreevy at EUobserver's Creative Rights conference on Wednesday (29 November).

"They are circumventing the democratic process and we are furious," German conservative MEP Doris Pack said on Mr McCreevy's October 2005 recommendation covering record labels and pan-EU music licences as well as his plans to issue a second recommendation in December on copyright fees and artists' trade unions.

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A recommendation is a non-binding document published by the commission indicating how it would like companies or governments to behave or how it may legislate in future, with EU civil servants free to disgorge recommendations without any control from the European Parliament or EU member states.

In contrast, a directive is a binding piece of EU law that involves a complex "co-decision" process between member states and MEPs which can take three or more years and can see the final text severely watered down as in the examples of the services directive or the REACH chemicals safety bill.

Supporters say soft law is a good way to quickly tweak EU legislation in reaction to market forces, but critics point out that recommendations have a "legal impact" and stimulate market changes that are later impossible to reverse, with the October 2005 recommendation already changing the way online music is licensed in Europe.

"That's the risk you have to take in a democracy - that the parliament or the governments of member states reject a piece of legislation, or change it - that's democracy," Austrian socialist MEP and chair of the parliament's legal affairs committee, Maria Berger said.

The commissioner is not for turning

The Irish commissioner explained soft law is part of Brussels' "better regulation agenda" on cutting red tape and that he does months of consultation with member states, industry players and MEPs before taking any action, but said parliament should not try to grab extra privileges in the consultation process.

"We don't suffer from any lack of consultation," he stated. "But we don't intend to be beholden to the views of any one group, you can take that as read. There won't be a unified view from the European Parliament on this issue [anyway]," he added on the digital music case.

Backing him up, the head of the commission's legal service, Michel Petite, said EU democratic standards should not be compared to national democratic standards - where elected authorities take precedence over civil servants - because the current EU Treaty is not a national constitution-type text.

"We are not working in a classic system that can be compared to a national system. Right or wrong - that's the [EU] system," he stated. "I'm not sure what the European Parliament wants - would you prefer a directive, or the right to choose the legal tool or to be consulted ahead of a soft law?"

Industry players such as the chief of Yahoo's global music division, Robert Roback, supported Mr McCreevy's thrust to quickly change EU music licensing, saying the old licensing system "is an enormous amount of work" and that his business is "all about how quickly we can get to the content."

But BEUC consumer rights lobbyist Cornelia Kutterer dished out blame on all sides, arguing that "it's too time-consuming" should not be the rationale for bypassing democratic procedure and saying MEPs more often "criticise soft law when it neglects their rights, but not necessarily when it neglects consumers' rights."

'I'd better burn all those documents'

Meanwhile, a conversation overheard in the back-seats of Wednesday's conference gives a humorous insight into the European Commission's internal attitude to transparency and consultation, with consultation usually handled by putting a notice on the commission's website asking people to send in ideas.

When the head of a film music writers' guild stood up to say the commission did not consult him on its recommendations, one commission official in a grey striped suit turned to another one in a grey striped suit and joked "What, did he expect us to call him personally?"

And when Danish eurosceptic MEP Jens-Peter Bonde complained on the podium that he cannot get access to key documents on how the commission prepares recommendations, the striped suit quipped "I'd better burn all those papers I've got at home."

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