Better Regulation: expertise over politics?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Commission Vice-President Frans Timmermans, the architect of Better Regulation. [European Parliament]

As the Commission makes a bid for greater democratic legitimacy, it must take care not to allow its technocratic tendencies to sideline the EU’s elected institutions, argue Charles de Marcilly and Matthias Touillon.

Charles de Marcilly and Matthias Touillon are members of the Brussels office of the Robert Schuman Foundation, a centre for research and studies on Europe.

The “Better regulation” package that went almost unnoticed in the Brussels news was presented by the European Commission on 19th May. But it received little media coverage, despite the extent to which this package illustrates the degree of tension between the Commission’s aim to open up the legislative process and its technocratic leanings, which are inherent to its structure and the institutional power struggle within the European Union.

This programme, which is the response to the second priority set by Jean-Claude Juncker to make “the European Union more democratic” intends to improve the efficiency of the legislative process via greater transparency and openness as well as reference to substantiating expertise. Hence a dialectic between democratic legitimacy and legitimacy via expertise emerges here.

The Better Regulation programme incidentally has come within a special political context, marked by recurrent criticism from the UK and the Netherlands, among others, of the hypothetical omnipotence of European legislation, deemed ill adapted by some. The Commission’s new political maxim, which is to be discreet about small issues and high profile regarding major questions, is based on this new vision of the role to be played by a more political legislator.

However, the analysis of the 14 sections covering more than 50 documents drafted over the last fifteen years reveals that the Commission’s proposal goes further than just wanting to open up the “internal kitchen” to the greatest number, to quote Frans Timmermans, the Commission’s first vice-president and father of the latest version of the project. If the proposal is accepted, efficiency, transparency and openness will be affected by the generalisation of impact studies and consultations of groups of experts and citizens. The Commission already does this systematically, unlike the European Parliament which is poorly equipped in this area and the Council of Ministers which refers to national experts. The desire to legitimise and enhance direct access to the institutions’ information, expertise and analyses is now clearly displayed.

It is legitimate to support the addition of the public consultation process, the simplification of the policy assessment bodies and even the inclusion of the feasibility of public action in its design if it can be proved that these measures will ultimately lead to improvements in citizen involvement and therefore the effectiveness of European policies.

But there is doubt about the targets of these new consultation processes. Clearly for the informed observer they address those affected by the policies in question, whose spheres of influence will be spread across a greater number of levels.

Moreover the danger of a de-politicisation of the European legislative process remains. This might result from the Commission imposing expert rationale on the Council and the European Parliament at the expense of political concerns, the community’s political institutions. The obligation to refer to impact studies, particularly in a context in which the Council and the Parliament would come to a “significantly different” agreement from the Commission’s initial proposal, would greatly reduce the Council’s means of decision and even more that of the Parliament, which does not enjoy adequate material or human resources to undertake this type of analysis. The European Parliament Members’ Research Service, whose mission is to provide systematic and automatic analysis on all substantial proposals for EU legislation at every stage of the legislative procedure, will be a crucial. In this regard, the negotiations that began on 25 June between the three institutions over an inter-institutional agreement, aimed at replacing the current one dating from 2003, will be decisive since there is a real risk of their political power diminishing in the long term.

In spite of its technocratic aspects, “Better Regulation” provides a response to Brussels’ opaque nature. However, we should remember that beyond procedures, it will be the men and women that embody this Commission who will make it more political and bring it closer to the citizens of Europe. 

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