In the three years since the Lisbon Treaty entered into force, EU decision-making has become more complex and opaque, and there are signs that the secondary legislative procedure, or comitology, no longer exists, writes Daniel Guéguen.
Daniel Guéguen is a lawyer and economist who worked for more than 35 years in EU lobbying and is the author of Reshaping European Lobbying. He is founder and current chairman of PACT European Affairs, a lobbying consultancy.
"If the Lisbon Treaty’s mission was to simplify, then it has failed. The EU decision-making process – generally transparent, balanced and uniform before Lisbon – has become more complex, more opaque, more ad hoc and more legal.
First of all, this damaging change affects primary legislation. Basic legislative acts, such as framework directives, are adopted mainly via ‘trilogues’ held behind closed doors and involving a very small number of representatives from the three main institutions.
However, it applies especially to ‘secondary legislation’. Before the Lisbon Treaty, we spoke of ‘comitology’. Over the years, the term spread and eventually everyone understood it to mean ‘a set of procedures for adopting technical regulations’. This system, while complex, had a logical process: the Commission would propose regulations to be approved by committees of national experts. In case of disagreement, the Council would take over from the Commission. This system is extinct.
To put it simply, the new system consists of two pillars: delegated acts, which amend or supplement nonessential elements of basic legislative acts (you could call these ‘strategic measures’), and implementing acts, which are more technical and individual measures. ‘Comitology’ no longer exists since, as explained below, delegated acts are adopted without any involvement of committees of national experts. So we have to replace the term ‘comitology’ with ‘secondary legislation’. The wonders of simplification!
Delegated acts give the Commission the power to both propose and adopt. It consults whoever it wants, however it wants. It does not have to consult at all. As proposal and adoption takes place entirely within the Commission, lobbyists are faced with a dangerous kind of opacity – they can never be certain that they will be informed in time. No association or NGO can rule out that one day, they will look in the Official Journal and find a delegated act they had never known about before. It is true that, after adoption, the European Parliament and Council have a veto right, but it is a virtual veto, since the time periods are brief and the majority thresholds are demanding.
Implementing acts maintain the spirit of the old ‘comitology’. Proposals still have to be submitted to committees of national experts for examination, but – again – the balance that once existed between the Commission and the Member States has disappeared, to the benefit of the former.
In this new system, it is still the Commission that proposes. It submits draft measures to an Examination Committee. If the Committee disagrees (and the process can vary a lot, depending on the file), the draft can go to the Appeal Committee – also composed of national experts. To block an implementing measure, you need a qualified majority vote in the Appeal Committee against the Commission’s draft. In practice, this is mission impossible – especially given that in one case (the Orphacol case, currently before the EU’s General Court), the Commission actually presented the same text once more to the Examination Committee, even though it had been defeated in the Appeal Committee!
The Lisbon Treaty does not change ‘co-decision’ (although it is now called the “Ordinary legislative procedure” – again, such simplification!). However, this procedural stability is outweighed by new practices, known as ‘trilogues’, which lead to the rapid adoption of less detailed laws. In fact, 80% of basic legislative acts are adopted at first reading – but the acts are often mere guidelines, relegating all the difficult issues, strategic choices and technical questions to secondary legislation.
Secondary legislation, already very important in the pre-Lisbon phase (where 96% of EU rules were adopted via ‘comitology’), is even more important post-Lisbon – not only in terms of quantity but also in terms of content. This is because delegated and implementing acts now affect the fundamental aspects of all EU policies.
There is no point in going on about transparency since, for delegated acts, it no longer exists. The same goes for trilogues and primary legislation. How can you get informed? Where can you obtain non-public drafts? Every lobbying organisation has to ask itself these questions. They will have to re-assess their classical monitoring systems, which do not generally cover primary legislation."
This op-ed was first published by EURACTIV Germany.