Jean Monnet Center at NYU School of Law


2. Comitology: Intergovernmental Control or Deliberative Networks?

A. Government by Committees and Institutional Politics

The body of literature looking at the role of intergovernmental committees in the EU system has expanded significantly in recent years.13 It is therefore sufficient to highlight a few elements of relevance to the overall argumentation of this contribution.

The Treaty of Rome was fairly elliptic with regard to the implementation of Community measures: Article 155 contemplated the possibility that the Council of Ministers would delegate to the Commission the right to adopt implementation measures. However, national governments have been wary of granting too much discretionary power to the Commission, and they have often obliged the latter to consult a committee of national representatives prior to making a decision.

Whereas the procedures regulating relationships between the Commission and those committees have varied a lot, there is broad agreement on a number of points. First, committees are viewed as a mere control device and are deprived of their own decision-making powers: the final word rests either with the Commission or, more rarely, with the Council. This enabled the Court to rule that the management procedure was not contrary to the institutional balance established by the Treaty.14 Second, committees are widely seen as the instrument of a principal-agent relationship between the Council and the Commission. In the same ruling, for instance, the European Court of Justice argued that `[t]he function of the management committee is to ensure permanent consultation in order to guide the Commission in the exercise of the powers conferred on it by the Council and to enable the latter to substitute its own decision to that of the Commission.'15 Finally, clear limits are supposedly assigned to committees' powers: according to the procedures established by the Treaty, `basic elements' of the matter to be regulated must be decided by the Council itself. The committees are supposedly confined to implementation issues.16

Such a view is symptomatic of a traditional understanding of the dynamics underpinning the integration process. Not only does it hold legislative procedures to be the most legitimate form of decision-making, but it attaches great importance to the necessity of achieving a balance of power between the Commission and national governments (which are implicitly regarded as unitary actors acting in a cohesive fashion).17

Institutional politics have shown that this view was shared by almost all of the actors that are active on the European scene. The Commission has long fought against the most restrictive of the committee procedures, notably the contre-filet variant of the regulatory committee procedure, which it regarded as a burdensome interference in its implementation powers. The Single European Act's failure to simplify comitology procedures was one of the main reasons for the Commission's initial reservations concerning that Treaty.18 During the Delors years, the Commission made no secret of its loathing for comitology. For its part, the European Parliament has repeatedly declared its aversion to a system that it perceived to be an undue restriction of the Commission's regulatory powers.19 Of course, this a position was largely explained by the fact that it enjoys more influence over the Commission than over the Council of Ministers. Thus the Parliament has frequently used its powers to oppose overly stringent procedures: the first instance in which a Council's common position was rejected in co-decision procedures arose because of a dispute over the proper implementation procedure. Similarly, in the post-Maastricht years the European Parliament brought several cases before the Court of Justice when it deemed its prerogatives to be threatened by decisions of other institutions.20 Conversely, the Member States' frequent insistence on imposing stricter procedures, notwithstanding their own commitment to favour advisory committees for internal market legislation,21 illustrates their unwillingness to give free reins to the Commission. Thus, all the main institutional actors appear to agree on a vision of comitology as a rather traditional mechanism of intergovernmental control.

Yet, turning to the actual operation of the system, there is no shortage of evidence to present a radically different picture of the very same phenomenon. While official discourse would lead one to expect systematic confrontations over the proper role of committees, day-to-day reality seems to have been much more consensual. Of the thousands of opinions submitted by committees in the period between 1993 and 1995, only six cases were referred back to the Council, and none of these led to a failure to decide.22 Moreover, accounts of committee members suggest that voting tends to be a rare event, and that the Commission - which chairs committee meetings - exerts considerable influence over their work.23 This might explain why the Commission has often been prepared to agree with the Council on the procedure to be chosen, notwithstanding its proud declarations to the contrary.24 Empirical works have depicted committees as peer structures in which the quest for consensus is a prevailing concern. In a now famous contribution, Joerges and Neyer have suggested a radically new vision of comitology as a forum for `deliberative politics' in which all participants engage in the search for the common good.25

Interestingly, there has been a change of attitude in recent years, even among European institutions. Once so critical of committees, the Commission has now adopted a more conciliatory tone.26 In its proposal for a new framework decision on comitology following the Treaty of Amsterdam,27 the Commission deliberately omitted any provision aimed at enhancing the transparency of comitology proceedings, lest (it was said) this might alter the quality of interaction with national officials.28

B. Who watches the Watchmen? The Need for New Legal Constructs

The consensual nature of the exercise undoubtedly has positive aspects, if only because it lessens the risk of institutional conflicts and provides for the smooth functioning of the EU regulatory system. Yet it brings its own set of problems. In a period of widespread mistrust of technocratic structures of all kinds, consensual deliberations between well-intentioned experts who meet behind closed doors to avoid unwanted interference, may easily be resented as collusion between technocrats. If intergovernmental control mechanisms no longer fulfil the task for which they have been established, and if comitology has indeed evolved into a freewheeling transnational structure, the key question becomes: who controls this structure, and how? Hence, inter alia, a request for more transparency and for participatory rights in committee procedures.29

Problems arise at different levels. The rather poor transparency of the committee procedures `make it difficult to discern the part played by the committees in the formulation and eventual adoption of measures'.30 It also tends to complicate judicial review of committees' work as they are deprived of decision-making powers of their own. True, the validity of the decisions eventually adopted by the Commission or the Council at the end of a comitology procedure can always be challenged: in recent years, the European Court of Justice has indeed started to look more closely at the functioning of committees, particularly when their procedural rules were allegedly violated.31 Needless to say, the indirect character of the review process, compounded by the more general difficulty experienced by private parties seeking annulment of Community decisions, reduces incentives to rely on litigation to ensure the proper functioning of committees.

Similar concerns have led to a gradual shift in judicial perceptions of the legal status of committees. This is exemplified by the Rothmans case. Under the access rule contained in Decision 94/90,32 a well-known cigarette manufacturer had requested to the Commission the minutes of the Customs Code Committee. The reasons for the application were simple: like all `comitology' committees, this one did not have its own administration, budget, archives or premises, nor an address of its own (as the Court of First Instance subsequently noted). It therefore appeared natural to turn to the only permanent member of the network - the Commission - which chairs the Committee and performs secretarial duties. Yet Decision 94/90 provides that applications must be sent `direct to the author'. The Commission thus rejected the application, arguing that it could not be regarded as the author of the minutes `in the intellectual sense' because it was subject to the Committee's control even though, in practice, it held the pen for the Committee.

Although the Commission's decision merely reflected the traditional construction of comitology's role, it gave rise to an embarrassing situation. Committees are supposed to be an emanation of the Council, which does not generally hold copies of Committee documents. Thus, in practice, the Commission's conclusion amounted to an exclusion of comitology from the scope of rules regarding access to Community documents.

In such conditions, adherence to the traditional view of committees would have ended up frustrating the principle of transparency to which European institutions have given so much importance in recent years,33 as Sweden, a notoriously transparency-minded government, promptly argued before the Court. Thus the Court preferred to rule that `for the purposes of the Community rules on access to documents, "comitology" committees come under the Commission itself, (...) which is responsible for rulings on applications for access to documents of those committees.'34 In order to avoid a situation in which it would be nearly impossible to hold the actual authors of a decision accountable, the Court of First Instance decided to adopt a radically new reading of the role of Committees. A stroke of the pen transformed them from control bodies into structures subordinate to the very institution they were supposed to control.

Rothmans is an interesting ruling in several respects. First, it is symptomatic of the paradigmatic shift in the perception of committees. The Court was faced with a tension between classical constructions in which committees are viewed as a control device, and the actual operation of the bureaucratic machinery where the dividing line between the various actors is somewhat fuzzy. Second, it illustrates a difficulty inherent in the emergence of transnational bureaucratic structures at European level: keeping them under control is made more difficult by the discrepancy between their legal status and their actual role. To avoid creating a black hole in which important decisions could be made without any control, the Court had no choice but to opt for an innovative reading of the situation, in which `comitology' committees and the Commission are depicted as forming part of the same network-like structure. This concession to pragmatism is noteworthy as, in other areas, traditional legal constructs have stood in the way of an acknowledgement of the changing conditions in which European governance structures now operate.

13 Joerges and Vos (eds), n. 7 above; Pedler and Schäfer (eds), Shaping European Law and Policy: The Role of Committees and Comitology in the Policy Process (1999).

14 Case 25/70, Einfuhr - und Vorratstelle für Getreide und Futtermittel v. Köster, [1970] ECR 1161 at 9.

15 Ibid; see also the Conclusions by Advocate-General Jacobs in case C-212/91, Angelopharm, [1994] ECRI-171 at para 38, where an intergovernmental committee is described as `a control mechanism'.

16 Case 25/70 supra note 14. at para. 6.

17 See e.g. Vos, `EU Committees: the Evolution of Unforeseen Institutional Actors in European Product Regulation' in Joerges and E. Vos (eds), supra note 7, 19-47, at 34, who argues that committees may be viewed as a way to protect the institutional balance against the growth of the EU, and ultimately of Commission powers.

18 Ehlermann, `The Internal Market following the Single European Act', CML Rev, vol. 24, 1987, 361-404.

19 On the European Parliaments' position, see generally Bradley, `The European Parliament and Comitology: on the road to nowhere ?' (1997) 3ELJ, 230-54.

20 See e.g. cases 302/87, Parliament v. Council, [1988] ECR 5615 and C-156/93, Parliament v. Commission, [1995] ECR I-2019.

21 Declaration on the Implementation powers of the Commission, annexed to the Single European Act.

22 SEC (95) 731 final, para 52

23 Buitendijk and van Schemdelen: `Brussels Advisory Committees: A Channel for Influence ?', 20 ELR (1995), 37-56.

24 Dogan, `Comitology: Little Procedures with big Implications', 20 West European Politics (1997) 31-60

25 Joerges and Neyer, `From Intergovernmental Bargaining to Deliberative Political Processes: the Constitutionalization of Comitology' 3 ELJ (1997) 273-299.

26 See its submissions in view of the 1996 intergovernmental Conference, Reinforcing Political Union and Preparing for Enlargement, Brussels, 1995.

27 Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission, (1998) OJ C 279/5.

28 Surprisingly enough, such a provision was introduced by the Council of Ministers in the final version. See Article 7 of Council decision 1999/468 of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999 L 184/23.

29 Dehousse, `Towards a Regulation of Transnational Governance? Citizen's Rights and the Reform of Comitology Procedures' in C. Joerges and E. Vos (eds.) supra note 7, 109-127, Bignami, `The Democratic Deficit in European Community Rulemaking: A call for Notice and Comment in Comitology', Harvard International Law Journal, (1999) 451-515.

30 de Bùrca, `The Institutional Development of the EU: A Constitutional Analysis' in P. Craig and G. de Bùrca (eds) The Evolution of EU Law, Oxford University Press, 1999, 55-81 at 77.

31 See eg case C-263/95 Germany v. Commission (Construction Products) [1998] ECR I-441.

32 OJ 1994 L46, p. 58

33 Curtin, `Democracy, Transparency and Political participation', in Veerle Deckmyn and Ian
Thomson (eds.), Openness and Transparency in the European Union, 1998, 107-120.

34 Case T-188/97, Rothmans v. Commission, 1999 [ECR] II-2463 at para 61




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