Jean Monnet Center at NYU School of Law



Parliamentary democracy is the dominant paradigm in the European Community's democratic deficit debate. In contemporary parliamentary systems, legitimacy rests in the directly elected legislative chamber and government authority flows from that chamber.2 It sits at the apex of government, above the second legislative chamber of regional representatives (e.g., the Bundesrat), which does not have equal legislative powers, and above the executive, which stands or falls based on the votes it can command in parliament.3 The directly elected chamber passes all legislation and holds the government accountable for executive acts.

This hierarchical model of democratic government has significantly influenced thought, in both academic and policymaking circles, on improving citizen participation and accountability in the Community.4 The standard complaint is that the only directly elected body, the European Parliament, does not have sufficient legislative power and cannot adequately control the Community's executive process. Until the mid-1980s, the Commission and the Council were the system's principal lawmakers: initiation of legislation was the Commission's task while passage of legislation was left almost exclusively to the Council. Further, when the Council and Commission acted in an executive capacity, the Parliament, aside from its power to vote a censure motion against, and put questions to, the Commission, had no means of holding them accountable. The reforms initiated in the Single European Act and continued in the Maastricht and Amsterdam Treaties have progressively expanded Parliament's powers in both the legislative and executive domains.5 Thus co-decision, a legislative process in which passage of legislation is entrusted to the Council and Parliament acting as equals, now applies in a wide variety of areas, from public health to transport policy. And the choice of Commission President, as well as the Commission as a whole, is now subject to parliamentary approval.

Exclusive reliance on the parliamentary democracy tradition is misplaced. Although direct elections and majority rule have become an important concern in the design of Community institutions, this aim must compete with others that originally inspired the Community's constitutional framework and that will continue to do so. Most important among these is supranational virtue. It is a theme that rings throughout the Treaties and in the thought of European statesmen as different as Monnet, Spinelli, and De Gaulle. According to this principle, the institutions and rules crafted by the signatory states and embedded in the Treaties were to transform the narrow, self-destructive national interests that generally motivate citizens and their governments into the pursuit of a higher, common good that achieves peace and prosperity. Thus Monnet wrote:

European unity is the most important event in the West since the war, not because it is a new great power, but because the new institutional method it introduces is permanently modifying relations between nations and men. Human nature does not change, but when nations and men accept the same rules and the same institutions to make sure that they are applied, their behavior towards each other changes. This is the process of civilization itself.6

Although the goal of supranational virtue is widely shared, there has never been agreement on how it can be best achieved. Competing visions of Europe led the drafters of the Treaty of Rome to create a number of independent public institutions, each of which is constituted differently and for a fixed term, and to divide authority among them.7 Over time, under the sway of the politics and personalities of the moment, the balance of power among the Commission, Council, Parliament, Court of Justice and the Economic and Social Committee has varied considerably. Never, however, has any one institution been able to claim exclusive legitimacy. Consequently, the Community is a separation of powers system in which government powers are shared among independent branches. A vision of democracy that rests on parliamentary supremacy defies the Community's basic constitutional structure.
The American experience can contribute to the debate on Community democracy because of its similar separation of powers constitution. At the Founding, the only directly elected institution, the House of Representatives, legislated together with a host of other institutions, each of which derived its legitimacy from a separate, and not particularly democratic, source: a law was to be passed by the House and the Senate (formed of men elected by state legislators), could be vetoed by the President (selected by local notables) and could be held unconstitutional by judges (appointed to the federal bench by the President with the advice and consent of the Senate).8 Although some branches, for instance the Presidency, have become more powerful with time, none has ever succeeded in monopolizing public authority. Thus, the United States remains a system of checks and balances without any one institution at the apex of government; citizen participation and government accountability have been improved within a constitutional framework of independent branches and shared powers.9 That experience, good and bad, can offer insights into the democratic deficit in the European Community.

In the following paper, I undertake this comparative exercise for one facet of Community government -- rulemaking by government administration.10 Many believe that European Community law is made centrally in Brussels and then carried out locally by the member states.11 This schema has always been somewhat of an oversimplification. From the beginning, central institutions have been wholly responsible, in certain areas, for enforcement and formulation of the more detailed rules necessary to implement policy (administration communautaire directe). Today Community administration is more extensive than ever as a result of the growing number of laws that must be put into effect and the establishment of European agencies with jurisdiction over new drug authorizations, trademarks, and other matters. The expert committees largely responsible for administrative rulemaking (known as "comitology") number well over 400.12

Following the Danish "No" to the Maastricht Treaty, Community administration, like all other facets of Community government, has come under attack as undemocratic and unaccountable to the ordinary citizen. In responding to this criticism and reforming their public administration, European lawmakers should bear in mind that theirs is a separation of powers constitution. One of the defining characteristics of a separation of powers system is that the legislative function is exercised by one independent branch of government and the executive function is exercised by another, unlike parliamentary government, in which legislative and executive powers are fused because of the relationship between parliament and government cabinet.13
This basic feature of separation of powers constitutions creates at least two distinct problems in the design of good administration. First, the executive branch should be held accountable to the legislative branch even though the legislative branch cannot remove, in the normal course of events, members of the executive branch from office. In the specific context of the Community, Commissioners (executive branch) should be held accountable to the Council and Parliament (legislative branch) even though they serve for fixed terms and generally cannot be removed from office. Second, the constituencies that participate in legislative politics should be allowed to influence policy implementation even though the politicians and civil servants charged with lawmaking are different from those charged with administration. Otherwise, the danger is that victories won in the legislature will be taken away when laws are administered. In the Community, therefore, the multiple interest groups that influence lawmaking through the Council, Parliament, and Commission, should not be selectively shut out downstream in the policymaking process by the public officials and administrators that staff the Commission. Accountability and public participation are especially important in administrative rulemaking, the topic of this paper, because of the significant normative content of rules; in general, rulemaking requires policy choices that impact large classes of individuals and firms, unlike case-specific administrative action. As another separation of powers system, the United States has considerable experience with these distinct problems of accountable and participatory administrative rulemaking, experience which can shed light on current attempts to improve Community administration.

The paper proceeds as follows. In the first section, I explain how Community rulemaking operates, both under the Comitology Decision of 1987 and the Comitology Decision of 1999. Next I develop a definition of good public administration and argue that, in separation of powers governments, accountability and public participation are achieved through legal rights to information, participation, and judicial review. In the United States' separation of powers system, notice and comment rulemaking is one of the most significant types of administrative procedure that fosters accountability to the legislative branch (Congress) and pluralist interest group participation when administrators engage in rulemaking. In section three, I briefly survey the major proposals advanced to improve democracy in Community administration as well as the reform adopted in June 1999 and argue that they are inadequate because they do not allow the public to participate directly in rulemaking. I then return to American notice and comment rulemaking and describe how it works and what it would entail in the Community, primarily through a case study of hazardous waste legislation and regulation (sections four, five, and six). In section seven, I examine the flaws of notice and comment -- interest group capture and gridlock -- by drawing on the considerable literature that has been generated by the American academy over the past twenty years. Finally, in the last section, I put forward a rulemaking proposal for the Community which incorporates the basic features of the American system but also makes use of some of the reforms suggested by the academy. I argue that the expected improvements in accountability and interest participation support the introduction of such a procedure but that it should be modified to reflect cross-cultural differences in attitudes toward experts and courts, and in the nature of interest organization.

2 See Philip Raworth, "A Timid Step Forwards: Maastricht and the Democratisation of the European Community," 19 Eur. L. Rev. 16, 16-17 (1994).

3 In the federal states of Germany and Belgium, where the second chamber is formed of regional representatives, it only has equal authority in matters affecting the regions.

4 See Renaud Dehousse, "European Institutional Architecture After Amsterdam: Parliamentary System or Regulatory Structure?" 35 Common Mkt. L. Rev. 595 (1998) (identifying parliamentary government and functionalism as two principal models in Community institutional design and tracing these themes in Amsterdam Treaty); Gráinne de Búrca, "The Quest for Legitimacy in the European Union," 59 Modern L. Rev. 349 (1996) (describing two main poles of the legitimacy debate as federalist and consociational, the first envisioning a federal polity with a fully empowered European Parliament and the other advocating consociational governance by national governments accountable to national parliaments); Philip Raworth, "A Timid Step Forwards: Maastricht and the Democratisation of the European Community," 19 Eur. L. Rev. 16, 16-17 (1994) (arguing that Community conceived within parliamentary tradition, criticizing Treaties for failing to respect this tradition, and suggesting reforms to bring Community government in line with parliamentary democracy).

5 See Renaud Dehousse, "European Institutional Architecture After Amsterdam: Parliamentary System or Regulatory Structure?" 35 Common Mkt. L. Rev. 595, 607-11 (1998).

6 Jean Monnet, "A Ferment of Change," 1 J. Common Mkt. Studies 203, 211 (1962).

7 See generally The European Union (Brent F. Nelsen & Alexander C-G Stubb eds., 1994) (containing readings on different perspectives on European integration); Eminent Europeans (Martyn Bond et al. eds., 1996) (collection of essays on Europe's statesmen).

8 See Paul A. Rahe, 3 Republics Ancient & Modern 63-72 (1994).

9 See Charles O. Jones, The American Presidency in Presidential Institutions and Democratic Politics 19, 23-26 (Kurt Von Mettenheim ed., 1997). Although the American system is generally characterized as presidential, see Klaus von Beyme, America as Model 59 (1987), that label trends to overemphasize the executive's authority. Independent branches and shared powers is a more accurate description of the constitutional system.

10 Many academics have suggested that American administrative law might serve as a source of inspiration for democratizing Community administration without, however, examining in depth the reasons for the comparative analysis or what such reform would entail. See Giandomenico Majone, "Europe's `Democracy Deficit': The Question of Standards," 4 Eur. L.J. 5 (1998) (arguing that independent agencies in the EC may be held politically accountable through American-style control mechanisms); Giandomenico Majone, "Regulatory Legitimacy," in Giandomenico Majone, Regulating Europe 284 (1996) (arguing for wholesale adoption of American Administrative Procedure Act because it would contribute to procedural legitimacy of Community regulation); Martin Shapiro, The Frontiers of Scientific Doctrine: American Experiences with the Judicial Control of Science-Based Decision-Making, EUI Working Paper RSC No. 96/11, at 19 (1996) (stating that a procedure inspired by American rulemaking may contribute to "greater transparency and participation in the Union's regulatory process"); Ellen Vos, Institutional Frameworks of Community Health and Safety Regulation: Committees, Agencies, and Private Bodies 6, 182 (1997) (unpublished Ph.D. dissertation, European University Institute, Florence) (on file with the European University Institute library) (advocating American-style public meetings, access, publication, transparency, interest representation, and hearing rights in comitology process); Andreas Bücker et al., "Social Regulation through European Committees: An Interdisciplinary Agenda and Two Fields of Research," in Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process 39, 55 (Robin H. Pedler & Guenther F. Schaefer eds., 1996) (claiming that American administrative law would shed light on legitimizing comitology).

11 See generally Koen Lenaerts, "Some Reflections on the Separation of Powers in the European Community," 28 Common Mkt. L. Rev. 11, 13-14 (1991) (describing system of executive federalism in the EC).

12 See General Budget on the European Union for the Financial Year 1997, 1997 O.J. (L 44) 1, 485. The term comitology derives from the French word for committee, "comité."

13 See Walter Bagehot, The English Constitution (Cox & Wyman Ltd. 1964) (1867) (giving classic definition of separation of powers and parliamentary systems).