Sunday

29th May 2016

Analysis

Complex EU law-making dubbed 'infernal, undemocratic'

  • When EU leaders adopted the Lisbon Treaty, they did not read the small print, Gueguen says (Photo: ec.europa.eu)

Brussels is awash with stories about the unhealthy influence of lobbyists on law-makers but as big a scandal, say some experts, is the increasing amount of legislation made with little scrutiny at all.

The lack of oversight - despite the EU capital's 754 MEPs and 1,000s of lobbyists - is down to the rising use of so-called secondary legislation coupled with a greater tendency to fast-track primary laws.

Dear EUobserver reader

Subscribe now for unrestricted access to EUobserver.

Sign up for 30 days' free trial, no obligation. Full subscription only 15 € / month or 150 € / year.

  1. Unlimited access on desktop and mobile
  2. All premium articles, analysis, commentary and investigations
  3. EUobserver archives

EUobserver is the only independent news media covering EU affairs in Brussels and all 28 member states.

♡ We value your support.

If you already have an account click here to login.

The twin effect has been to make much of EU law-making “untransparent” and “unpredictable,” says Daniel Gueguen, himself a lobbyist and long-time expert on so-called comitology.

The problem boils down to the current trend of making basic EU laws very general.

This helps achieve consensus in politically important but sensitive areas, on the understanding that the nitty gritty will be fixed at the secondary legislation level.

But this is where the problem lies. The second layer system is complicated and, says Gueguen, gives a lot power to the European Commission.

"When EU leaders signed the Lisbon Treaty, they were not aware of what was in it," he suggests.

Secondary legislation is either a general delegated act or a more technical implementing act enabling the European Commission to respectively tweak laws or decide on how they should be implemented.

The division between the two appears legally clear on paper. But it is in fact highly political as it concerns power.

Member states prefer implementing acts because they can influence their final shape through committees where their experts sit.

Delegated acts, on the other hand, can be adopted without interference. While they can be overturned by a qualified majority among member states or an absolute majority in the parliament - it has to be done within a certain timeframe and it is not easy to see when the commission has made these decisions.

“The commission is putting more and more provisions to delegated and implementing acts,” says Jorgo Riss, head of the EU's office of environmental NGO Greenpeace.

“This increases the number of issues that can be decided with the big risk that we don’t know about it on time.”

A measure of the scope of secondary legislation can be seen with the current proposals to reform farm policy. Four regulations have over 400 articles. More than half are linked to secondary legislation.

According to Riss, issues that may look technical can quickly become political. He gives an example of decisions on whether to ban certain chemicals. The politics comes into what scientific evidence is used to make the decision.

"Infernal trialogues"

Meanwhile, the updated comitology rules - in place since March 2011 - coincide with the fact that external political pressure is increasingly giving rise to member states and parliament having only one reading on proposed EU legislation.

“The three institutions bring things to conclusion quickly without proper wider scrutiny by the parliament,” says Riss.

“With first readings we don’t even get a proper plenary vote on the legislation because the plenary is voting on an agreement that was made in trialogue,” he adds.

Guegen refers to the closed-door meetings between a small group of commission, parliament and member state officials to hammer out details on draft laws as “those infernal trialogues.”

For controversial laws, such as the recent EU law on regulating credit-rating agencies, such trialogues can occur once or twice a week.

It is here that it is decided how much of the basic law to leave to secondary legislation, and whether it should be a delegated act or implementing act.

“This is frequently one of the key issues in trialogues and often remains unsolved until the end of the negotiations,” says Hungarian centre-right MEP Jozsef Szajer.

He notes that “parliament often tends to give up and accept implementing acts [preferred by member states] in order not to block or delay the legislative procedure or endanger overall agreement on the more political elements of the file.”

Then the issue lands on ministers’ tables where it is rubberstamped and parliament adopts it in plenary. When it comes to implementing acts, the parliament has no say.

“It is not illegal,” says Gueguen “but for me it is totally out of democracy.

“Partly we are now in a system where it is difficult to know how things are being decided,” says Riss.

Vicky Marissen, who along with Gueguen runs public affairs company PACT, notes that “secondary legislation exists in every member state. You need it … The problem is there is no harmonised, transparent way of dealing with it at the EU level.”

She believes the uncertain legal situation will make the European Court of Justice busy. “We’ll have a lot more litigation in the future, also between the institutions themselves."

For its part the commission defends the new rules.

“The commission cannot choose whether it makes an implementing act or a delegated act. This depends on what powers have been given to it by the legislator," said one commission official.

Analysis

How Portugal's leftist 'contraption' works

After six months in power, the improvised left-wing coalition between socialists, leftists and communists has managed to rule and even thrived, to many Portuguese's surprise.

News in Brief

  1. Syrian refugees sue Denmark over immigration law
  2. Ukraine bans Gorbachev for backing Crimea's seizure
  3. Dozens dead in two shipwrecks outside Libya
  4. Slovak PM says his country is no place for Muslims
  5. Juncker's spin-doctor warns of populist 'horror'
  6. EU urges Hungary to end discrimination of Roma children
  7. Majority of voters think UK will stay in EU
  8. Leading MEP says Greek bailout will not work

Stakeholders' Highlights

  1. ACCAEducation and Training 2020 - Giving Young People the Workplace Skills They Need
  2. EPSUTrade Unions Back New Undeclared Work Platform
  3. European Healthy Lifestyle AllianceCould targeting children’s fitness boost academic performance?
  4. World VisionDeclares the World Humanitarian Summit a Positive Step in a Longer Journey to Ending Need
  5. EJCPresident Dr. Moshe Kantor on Brexit and the Jewish Question
  6. Swedish EnterprisesNew rules for posted workers - Better Protection or the End of Posting ?
  7. World VisionWhy The EU Needs to Put Children at the Centre of Emergencies - In Their Words
  8. ACCASustainability Reporting in Danger of Losing Its Momentum Says ACCA and CDSB
  9. Dialogue PlatformDiversity as Heritage of Humanity! Join the “Colors of the World“ Show at the EP
  10. Centre Maurits CoppietersNew Responses to the Basque Peace Process? MEP Juaristi on Stateless Challenges Conference
  11. European Healthy Lifestyle AllianceImproving Cardiovascular Health Begins by Closing the Gap in Sex Disparities
  12. IPHRBrussels Talks to Take Stock of Human Rights in Turkmenistan