Jean Monnet Center at NYU School of Law


5. Conclusion: Lost Boundaries

EU law remains influenced by a fairly traditional view of the way in which the integration process unfolds. EU policies are still largely seen as an exercise in international diplomacy in which the convergence between would-be "national" interests - expressed by national governments and mitigated by the influence of enlightened technocrats (the Commission) - plays a key role. They carry a somewhat dated vision of public policy: the legislative stage is supposed to be decisive, and the control of elected representatives is expected to be the main way in which to ensure the legitimacy of policy choices.

These assumptions are being shaken by the evolution of European governance. The boundaries between law-making and implementation, or between scientific advice and policy-making, have become difficult to discern. The point is not that these classical concepts have become entirely obsolete, but that they are no longer sufficient to make sense of the way things work, let alone to regulate the policy-making process. Functional needs have led to the emergence of new actors - scientists, bureaucrats, interests representatives - whose influence is often essential. Decision-making processes have evolved. The idea that a clear-cut response can be given to the problems faced by modern society is increasingly challenged by the technical complexity of the issues to be addressed. Those are mighty problems for any society; at the European level, they are compounded by the necessity to involve a plurality of actors - national and European - at all stages of the policy process.

In combination, these trends have led to the emergence of transnational bureaucratic networks and to a strengthening of the administrative stages of the decision-making process at the expense of the legislative component. Constitutional principles have often been invoked as a brake in this process. The European Court of Justice has tried to preserve the primacy of legislative procedures by assigning limits to what can be delegated to technocratic bodies such as `comitology' committees or specialized agencies. Basic principles (such as the concept of `institutional balance') have been instrumentalized by those who tried to oppose the above-mentioned trends, not least in the European Commission. The stubborn insistence on a non-delegation doctrine has often been presented as a defence against a technocratic drift, and an attempt to preserve the `political' character of basic decisions against the evils of technocracy. However, the reality is somewhat more complex. The EU's legislative processes are heavily technocratic. Moreover, despite many protests to the contrary, one has accepted - in fact, if not in law - that basic decisions are made by technocratic bodies of various kinds, the choices of which are duly rubber-stamped by the `political' powers that be. EU law is then used as a façade to hide a reality that is deemed to be unacceptable.

Law is said to protect normative values. Are these better served by this exercise in camouflage? It seems hard to believe. Are decisions that are made (de facto) by committees and agencies more amenable to judicial or parliamentary control simply because they are formally attributed to the European Commission? Hardly so. On the judicial plane, the rule of law ethos that led the European Court of Justice to declare itself competent to review the legality of decisions taken by the European Parliament (at a time this was not foreseen by the Treaty)80 would lead it to similarly accept jurisdiction to review the acts of any delegated body.81 For its part, the European Parliament has given ample evidence of its ability to transform its budgetary powers as an instrument of political control, even in areas in which it was granted no formal powers. Specific mechanisms of parliamentary oversight can also be established.

Given the technical complexity of the decisions that are taken by delegated bodies, it is unlikely to be of much help to advocate a return to the status quo ante. Indeed, insisting on a principle of non-delegation ill-serves exactly the constitutional principles it is supposed to assist; hiding the identity of the organization actually responsible for decisions will sooner or later give rise to delicate liability issues. Those who are attached to the primary rule of constitutionalism - according to which all powers must be controlled - would be better inspired to acknowledge the evolution that has taken place. This is not tantamount to granting carte blanche to experts. Political institutions would still retain the right to define the basic objectives to be reached and the means to be used for that purpose. As indicated above, they might be given the power to overrule decisions that they deem to be incompatible with those objectives. However, the formal recognition of the role played by experts would enable one to insist on the necessity of consolidating the basic guarantees that surround decision-making at their level. Ensuring transparency, participatory rights, the pluralist character (and therefore the quality) of scientific deliberations, and fair behaviour on the side of public authorities, are all essential elements in the construction of a legal order that tries to reconcile the functional necessities of our time with individual rights and democratic principles. Important steps have already been made in this direction in the new framework decisions on comitology,82 following the Ombudsman's initiatives on transparency, and on the codes of conduct to be adopted by all EU bodies. With their rulings on transparency and principles of good administration,83 the European Courts have also actively promoted higher control standards. This trend could be strengthened by a clearer recognition of the transformations that have taken place within European governance.

80 Case 294/83, Parti écologiste `Les Verts' v European Parliament, [1986] ECR 1339

81 As was for instance suggested by Lenaerts, supra note 60.

82 Council Decision 99/468/EC, OJ 1999, L184/23.

83 See the analysis of H.P.Nehl, Principles of Administrative Procedure in EC Law (1999)




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