Legislate or delegate? Bargaining over implementation and legislative authority in the EU

Abstract

This article explains how actors' ability to bargain successfully in order to advance their institutional preferences has changed over time as a function of the particular institutional context. Actors use their bargaining power under given institutional rules in order to shift the existing balance between legislation and delegation, and shift the rules governing delegation in their favour between formal treaty changes. A collective actor's preferences over delegation is a function of whether the actor has more ability to influence policy through delegation or through legislation. The degree to which a specific actor's preferences can prevail (in a setting in which different actors have different preferences) will depend upon its bargaining power under existing institutional rules, i.e. its ability to impede or veto policy in order to change the division between legislation and delegation and the rules of delegation. The primary focus in this article is on choice over procedure, i.e. the battles over whether or not delegation or legislation should be employed. A secondary focus is on change in procedure. The article examines the evolution of the debate over comitology and implementation over five key periods and scrutinises how actors within these periods have sought to shift the balance of legislation and delegation and the rules of delegation according to their preferences.

Notes

1. While the European Court of Justice (ECJ) also plays an important role, it is an indirect one; the ECJ interprets the Treaty and may adjudicate disputes over competences between the other legislative actors.

2. In contrast to a normal legislative proposal, the Council has no right to be consulted.

3. See Bates et al. (2000). The method of analytic narratives has been criticised (e.g. Elster 2000) for not paying sufficient attention to the sources of actors' preferences; we seek to address this objection through our argument that actors' preferences in any given period are a function of the formal institutional structures governing legislation and delegation.

4. Our analysis builds on the detailed research of Bergström (for a more detailed account, see Bergström 2005).

5. We do not examine the ability of argument itself to reshape politics.

6. Bulletin EEC 5-1959.

7. A bargaining process need not be around a table, but can also be conceived of as a looser strategic interaction between actors (Sebenius 1992).

8. Bulletin EEC 5-1960, p. 39.

9. Résolution (157) du 20 décembre 1961 EEC (OJ 1962 C 72/62), or Annuaire-Manuel 1961–62, pp. 468–9.

10. Rapport général sur l'activité de la Communautééconomique européenne (rapporteur: Arved Deringer), PE Doc 74/1962–63, 5 October 1962.

11. The crisis began with the Commission's proposals on financing of the CAP in March 1965. The Commission proposed that not only agricultural levies, but also customs duties should be treated as ‘own resources’, to be spent at the Community, rather than member state level. Although the Commission had tried to win French support through a favourable allocation of spending, the French government was incensed, and withdrew from both Council sessions and the Committee of Permanent Representatives.

12. De Gaulle complained that the Commission wished to become a ‘great independent financial power’, and that ‘those very states, having fed these enormous amounts to it …, would have no way of supervising it’ (Le Monde, 10 September 1965; translation in Lambert 1966: 214–16).

13. Bulletin EEC 3–1966, pp. 6–7.

14. In a draft of COREPER that gave substance to the Luxembourg Compromise, a ‘method’ was envisaged according to which Council and Commission would together specify the implementing powers that the Council could delegate, and what the future role of the management committees would be. However, after a number of governments observed that delegation of implementing powers was the business of the Council alone, and did not need to be discussed with the Commission, this section was deleted. (Process-verbal Luxembourg, 17–18 et 27–28 janvier 1966, Conseil of the CEE, no C/12 f/66 (AE 1) final, p. 28 and 71.)

15. Resolution of 9 March 1966 (OJ 1966 769/66).

16. See Council Regulation 802/68/EEC of 27 June 1968 (OJ 1968 L 148/1); see also Council Regulation 803/68/EEC of 27 June 1968 (OJ 1968 L 148/6).

17. See below for evidence.

18. The most important is the so-called Jozeau-Marigné report, Legal Committee, Report on procedures for the implementation of secondary Community law (rapporteur Jozeau-Marigné), EP Doc No 115/1968–69, 30 September 1968.

19. OJ 1968 C 108/37. See also Europe, 3 October 1968.

20. Quoted in Europe 3 October 1968. While Rey promised the Parliament that the Commission would not accept the application of the contre-filet in future measures, the Commission itself proposed such a mechanism in a new area shortly thereafter (see ‘Editorial Comments’, Common Market Law Review 7 (1970).

21. Bulletin EC, Supplement 1/76, pp. 31 and 33.

22. Bulletin EC, Supplement 2/78.

23. Bulletin EC 11-1979, p. 47.

24. Fresco Report 1978. Commission Communication to the Council, 20 April 1978, ‘The Transitional Period and the Institutional Implications of Enlargement’, Bulletin EC Supplement 2-1978.

25. The Parliament's budgetary powers were increased by the ‘Budgetary Powers’ treaty of 22 July 1975. In 1978 the class of non-obligatory expenditure in which the Parliament has a say constituted over 20% of the budget.

26. The right to be consulted allowed the Parliament to delay legislation indefinitely according to one reading of the ECJ's ruling in the Isoglucose case; while this ruling's implications were narrowed considerably in later judgments, it provided the Parliament with a potent means of effectively vetoing legislation for a considerable period.

27. Commission Proposal of 3 March 1986 for a Council Regulation COM(86) 35 final (OJ 1986 C70/6). See Bulletin EC 1-1986, point 2.4.6. See also Ehlermann (1988: 233) and Bradley (1992: 695).

28. Apart from this attempt, the Commission did not propose rules determining which kind of committee should be used for fear that member states would substitute its own, harsher rules. House of Lords Paper 1986–87, Oral evidence by Claus-Dieter Ehlermann, at paragraph 83 (p. 19).

29. See the Report on the Proposal from the Commission of the European Communities to the Council for a Regulation laying down the Procedures for the Exercise of Implementing Powers Conferred on the Commission (rapporteur: Klaus Hänsch), Political Affairs Committee, EP Doc. A 2-78/86, 2 July 1986.

30. Ibid.

31. Speech of Jacques Delors to Parliament, in Debates of the European Parliament of 9 July 1986 (OJ 1986 Annex No 2-341, p. 155).

32. See the amended Commission Proposal of 3 December 1986 for a Council Regulation COM(86) 702 final.

33. Under a Decision the addressees are not national administrations, and no rights are conferred on individuals.

34. The safeguard procedures do not require the use of a committee. The Council gives the Commission the powers to introduce safeguard measures. The latter should notify the Council of its decision to introduce such measures. The Council can stipulate that the Commission, before adopting its decision, must consult member states. Any member state can refer the decision to the Council. Then, either the decision of the Commission continues to apply unless the Council by qualified majority has not taken a different decision, or the measure is deemed to be revoked if the Council has not acted within a limited period.

35. Interviews with officials in Council Secretariat (October 2001).

36. The Commission rejected a supervisory role of the Parliament with respect to the exercise of the implementing powers. It felt that any changes in comitology procedures should be covered by an inter-institutional agreement, and it considers it inappropriate to consult the Parliament on technical issues.

37. European Court of Justice (1980). Case 138/79 SA Roquette Frères v. Council of the European Communities (ECR 3333), 29 October 1980.

38. The Maastricht Treaty for the first time in history had given the Parliament the right to bring cases to the ECJ.

39. The Court also questioned the right of re-consultation of the Parliament in case of considerable changes in the text by excluding amendments relating to the type of committee procedure.

40. In the case of the Council Regulation 2092/91/EEC on organic production of agricultural products the inclusion of Genetically Modified Micro-organisms (GMMOs) in the limitative list in the annex was not considered to go beyond the framework for implementation of the principles laid down by the basic regulation adopted following consultation of the Parliament. In another ruling of 1993 (European Parliament v. Council C-417/93) implementation was defined so widely as to permit provisions not in an annex but in the main text of a Regulation adopted under a normal procedure to be amended under a simplified procedure. A Commission proposal for a Council Regulation concerning technical assistance to economic reform and recovery in the independent states of the USSR and Mongolia (a follow up to the previous TACIS programme) was sent to the Parliament for consultation. The Parliament rejected the proposal because the Council decided to entrust the Commission with implementing powers on the basis of a regulatory committee procedure instead of a management committee procedure as chosen by the Commission. After the rejection, the Council adopted the proposal and added a supplementary procedure giving the Council the right to revise public contracts above a certain threshold of ECU (Council Regulation 2053/93/EEC/Euratom). The Parliament brought an action of annulment to the ECJ, arguing that the EP's prerogatives were undermined. The claim was rejected by the Court.

41. This was underlined by a Resolution of the Parliament.

42. Thus it was granted right of attendance at committee meetings.

43. ‘In contrast to the Commission we believe that an implementing rule cannot be amended, updated or adapted, these being the key elements of the basic legislative acts, including the annexes, … we know perfectly well that, very often, key elements of the legislation are dealt with in the annexes’ (Report on the Proposal for a Council Decision laying down the Procedures for the Exercise of Implementing Powers Conferred on the Commission (rapporteur: Maria Adelaide Aglietta), Committee on Institutional Affairs, EP Doc A4-169/99, 24 March 1999).

44. Corbett, Debates of EP, 5 May 1999.

45. After the adoption of Decision 1999/468/EC the Parliament released the appropriations it had withheld.

46. The Commission can either submit a new draft measure, continue with the procedure or present a proposal for normal legislation.

47. Bolkestein, Debates of the EP, 5 February 2002.