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Abstract
The article examines how changes of powers in the inter-institutional balance have affected the willingness of the Commission and the Council to delegate legislative power to comitology committees. Starting from the assumption that actors seek to maximize their institutional power in order to increase their influence over policy outcomes, we argue that changes of institutional rules affect their willingness to adopt legislation through comitology procedures. We examine the effects of the introduction of the 1999 comitology decision, which increased the competences of the Commission in the comitology procedure by abolishing the ‘double safety net’. We show that the Commission has proposed delegation to management and regulatory committees more extensively since the adoption of this decision. Surprisingly, the Council – which saw its own competences reduced by the decision – did not put up significant resistance to the more frequent use of delegation.
ACKNOWLEDGMENTS
We are very grateful to Fabio Franchino and to the anonymous reviewers for their very constructive comments on this article.
Notes
ECJ, Case 25/70 Koster 1970.
Comitology Decision 2006/512/EC.
Delegated powers-control mechanisms = discretion.
This does not preclude that actors may be faced with a conflict between the maintenance of institutional power on the one hand and other considerations (such as efficiency) on the other. What we argue is that actors would, ceteris paribus, prefer to have important rather than limited competences in the decision-making procedure.
The legislation can also allow the Commission to take legislative decisions without committees of member states, but it happens very rarely.
Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission (98/C 279/05) COM(1998) 380 final – 98/0219(CNS).
The likely objection of the Council to the advisory and management committees may be derived from the Council's Comitology Decision which states that regulatory committees should be used in the case of ‘measures of general scope designed to apply essential provisions of basic instruments’ and to the updating or adaptation of ‘certain non-essential provisions of the instrument’.
The Council removes the delegating clause in 9 delegation proposals and adds one in 12 Commission proposals.
11 times out of the 333 proposals, or less than 3 per cent.
That is, the number of paragraphs starting with ‘whereas’.
From our database we calculated that the average time for passing delegation based on Article 43 was 1 year and 6 months. We therefore examined whether proposals made by the Commission up to June 2008 were passed or not passed by the Council until December 2009. If not, we assigned the value of 100.
No proposals were made by the resigning Santer Commission (March 1999 to September 1999).
The same reasoning could not be made about the Constitutional Treaty, which had been rejected by a referendum in France and in the Netherlands only six months after its signature.
The yearly workload and the first year of the Commission term are not very highly correlated (Pearson R = –0.326) and hence could be inserted together in the regression without violating the assumptions.
We also run the regression including the number of words rather than the number of recitals. The results of all coefficients are very similar, and the Exp (B) of the number of one hundred words is equal to 1.003, and is significant at the 0.01 level. That is, the addition of 100 words increases the odds of delegation by only 0.3 per cent. This shows a very small – but extremely consistent – effect of the length of legislation on delegation (annex available at https://sites.google.com/site/catherinemouryphd/publications/annexes-journal-article/jepp).
The results are almost identical when the variable ‘Number of Member States’ is replaced by a dummy variable taking the value of 0 before the enlargement to the 25 new member states and 1 afterwards.
We also introduced the year as a control variable to check for an effect of a mere temporal trend on delegation. Doing so, the Exp(B) coefficient of the variable ‘Introduction of Comitology Decision’ decreases to 3.5 (rather than 4.7), but stays significant at the 0.05 level (annex available at https://sites.google.com/site/catherinemouryphd/publications/annexes-journal-article/jepp).
Interview with an official of the Commission Legal Service, January 2011.
The results for the advisory committee should be taken with some caution given the limited number of cases (16).
And is then lower than in and , where the population was all Commission proposals.
From our database we calculated that average time for passing delegation based on Article 43 was 1 year and 6 months. We therefore examined whether proposals made by the Commission up to June 2008 were passed or not passed by the Council until December 2009.
Under the legislative procedure, unanimity is required when the Council amends the proposal in a way that is not supported by the Commission.