The answer is the European Commission, but only because of bad procedural practices after the entry into force of the Lisbon Treaty, argues Daniel Guéguen.
Daniel Guéguen is a visiting professor at the College of Europe. He is also chairman and partner of Pact European Affairs and formerly founded CLAN Public Affairs.
"The Lisbon Treaty is not the best of treaties. In practice, post-Lisbon procedures have become more complex, opaque and more pliant from one case to the other. These ad-hoc procedures – one might say procedures à la carte – encourage European decision-makers to interpret the rules and bend them as it suits. A legislator who interprets the law is never a good sign.
Since the beginning of 2010, when my book 'Comitology: hijacking European power?' was published, a number of cases showing procedural flaws have made me question the Community method, the balance of power and in general the EU legal order.
A good definition for this, in appearance, very clear concept is hard to find. After searching, the most compelling reflection comes from Canada. Guy Rocher, full professor at Harvard and Laval universities, defines it as "a set of binding rules whose adoption is based on legitimacy. The rules and agents or bodies must demonstrate stability over time, relative permanence."
It is clear that the institutional instability that the EU has known over the last 10 years is in itself a source of legal instability. Just as a reminder of the long list of reforms the EU has undergone: the draft Constitutional Treaty, the comitology reform of 2006, the Treaty of Lisbon end 2009, a new comitology reform in 2011.
"Free interpretations" of the European legal order are probably linked to some extent to the institutional, economic and monetary upheavals affecting the European Union since 2008, as if the urgency or gravity of the situation constitutes sufficient ground to adapt the law to the circumstances.
Three examples are particularly illuminating: the adoption of the energy and climate change package in December 2008, de facto side-lining the European Parliament and the Council of Ministers to the benefit of the European Council of heads of state or government, which was at the time not even an EU institution.
The dismantling of the Community method by Merkel-Sarkozy to the benefit of the intergovernmental approach is a second striking example. The third example is linked to the struggle for power between the Commission-Council-Parliament when dividing implementing measures in delegated acts and implementing acts.
Three cases in particular show the trend towards bad procedural practices: legal window-dressing, short-cut procedures, approximations, interpretations of the rules, and an overall a lack of respect for the spirit of the Treaties.
The first case: the Fuel Quality Directive. In this file, the letter of the rules is respected, but in spirit they are violated. Whether it concerns the Impact Assessment, the consultation process, the publication in the comitology register, alternate compromise proposals by member states, inter-service consultation, it all amounts to a stop-and-go process, U-turns and opacity.
The second case: the revision of the pharmacovigilance legislation in which we find delegated acts co-existing with the Regulatory Procedure with Scrutiny. These two procedures can in principle not feature together in one and the same piece of legislation, as one applies to legal acts pre-Lisbon and the other to acts post-Lisbon. Legal experts at the Commission justify this anomaly by indicating that the rules can be adapted if they facilitate a political compromise.
The third case involves Orphacol. Orphacol is a medicine used for the treatment of two extremely rare and serious child liver diseases, and is an alternative to liver transplantation. The medicine was approved twice unanimously by the European Medicines Agency. Nevertheless, the Commission opposes to it and drafted a proposed regulation refusing market authorisation. In the Examination and Appeal Committee, member states opposed the Commission’s refusal at qualified majority. The Commission however persisted in its refusal.
The file was taken to the Court of Justice which accepted an accelerated procedure and scheduled a hearing on 24 April 2012. Barely one week after this hearing, the Commission re-introduced its proposal for refusal of market authorisation to the Examination Committee on 8 May (a public holiday in a number of EU states): the same proposal the Examination Committee voted on and rejected at QMV on 13 October 2011. Member states came short of a few votes to reject the Commission’s proposal at qualified majority. The Commission now has the free hand to adopt its proposal. The Court’s ruling is expected with impatience.
Never in my 40 years of experience with the European Institutions have I seen such a case encompassing all the components of bad governance. First of all, the opacity of DG SANCO’s motivating factors. Why such opposition against a medicine that has proven its benefits over the past 20 years and whose market authorisation is supported by the most high-level medical authorities and was unanimously endorsed by the European Medicines Agency?
How to find reasoning in the Commission’s refusal to follow the will of the member states, voting twice by a qualified majority in favour of the market authorization of Orphacol? What is worse, is that the Commission, without waiting for the European Court's judgment in the weeks to come, tables another regulation proposal against the Orphacol’s market authorization.
The Orphacol dossier leads us to believe "the minor European official has become the Master of the Union". Where have the community method and the collegiate decision-making principle gone? In fact, who is the boss in Brussels?
This is the only question we must answer today. It seems necessary to urgently return to the community method that goes hand in hand with a strong Commission. But there cannot be a strong Commission without absolute respect for the Parliament/Council tandem. In parallel, the Commission must ensure a strong hierarchical authority that prevents/combats hegemonic ambitions of certain directorates general."