Complex EU law-making dubbed 'infernal, undemocratic'
By Honor Mahony
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.
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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.
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.