Excessive complexity hinders transparency of lawmaking

A lack of understanding of EU legislative procedures hinders transparency. [Pawel Szczepanski/Shutterstock]

This article is part of our special report Lawmaking in the dark.

Understanding of EU lawmaking among lobbyists and journalists has declined as the processes themselves have become more complex, to the point of making Brussels “a land of incompetence”, experts said at a seminar on Monday (27 November).

Brussels is a Mecca for lobbyists. According to the NGO Corporate Europe Observatory, the EU capital counts some 30,000 of them, all vying to influence EU lawmaking in their favour.

Yet as legislative procedures have grown in complexity, there are only “a handful” of lobbyists left who really understand how secondary legislation is made, the experts from consultancy PACT European Affairs said at the event hosted by the Press Club in Brussels.

“The more complicated the system has become, the fewer people have educated themselves about it,” said Daniel Guéguen, the president of PACT and a professor of comitology at the College of Europe.

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“In the past, a lobbyist was someone who had technical knowledge of a certain issue, who had identified the people responsible in the European Commission and went to see them,” said Guéguen, who has previously presided various industrial groups including EU farmers and agri-cooperatives union Copa-Cogeca.

Representatives from civil society organisations, industry bodies and consultancies, which Guéguen referred to as “mercenaries”, are all experts in their own policy areas and are all lobbyists.

But as every aspect of the job, from legislative procedures to methods of communication, has increased in complexity, “Brussels has become a land of incompetence”, he said. “There are still a large number of lobbyists who are very competent technically – there are specialists in all sectors – but they no longer understand how the system works.”

The same goes for journalists, he said, who tend to understand the technicalities of the legislation they cover but not the decision-making procedures. “And if you do not understand how decisions are made, you cannot analyse them,” Guéguen said.

For the veteran lobbyist, the turning point was the Treaty of Lisbon, which came into force in 2009 and made the labyrinth of decision-making procedures unnavigable to all but a few.

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Layers of complexity

Before the Lisbon Treaty secondary legislation was fairly simple. Comitology committees, formed of national experts and presided by a Commission official [usually the head of unit responsible for the subject under discussion], made technical decisions on secondary legislation.

“The purpose of these committees is to adopt the measures that allow the legislation to function in practice,” said Vicky Marissen, the director-general of PACT, who is also a professor of comitology at the College of Europe.

Another layer of complexity was added in 2006, when the European Parliament was given the right to scrutinise, accept or reject secondary legislation. This is known as the regulatory procedure with scrutiny (RPS).

And since the 2009 Lisbon Treaty, the system of delegated acts (granting the Commission the right to amend or supplement non-essential parts of EU legislation) and executive acts (allowing the Commission to execute decisions based on the EU treaties), each demanding a different procedure, has complicated the legislative landscape even further.

As if that were not complex enough, the procedure to be used when establishing or amending secondary legislation depends on when the original legislation was adopted.

Therefore, changes to pre-2009 legislation, such as the REACH chemicals regulation and secondary legislation relating to the dieselgate scandal, are still made by RPS, while amendments to more recent laws are subject to the provisions of the Lisbon Treaty.

“You may think that the 2006 system has been abandoned, but this is not the case,” said Marissen. “For around 160 legislative texts this RPS procedure is still in use on a daily basis.”

The implications for transparency

The implications of such a complex system on the transparency of lawmaking are not hard to see: if journalists and other outside observers do not understand who holds the power to make the technical decisions behind EU legislation, they cannot hold them to account.

Similarly, if lobbyists – from small NGOs to powerful industry groups and paid consultants – fail to grasp the procedural subtleties of comitology, their message will not reach the right ears and their efforts to influence legislation will be ineffective.

The interest groups with the money to hire the few consultants capable of navigating this labyrinth are at a significant advantage.