The Legitimacy of Regulatory Comitology
- 1st draft, all comments welcome -
Check Scharpf at - d3
Check Lijphart 1984 on majoritarian vs consensual democracy, Mark Rhinard, Dem leg and EU Committee -
Check Held models of democracy , and Dahl on democracy.
check Adrienne heretier, elements of democratic legitimation in Europe: an alternative perspective, Journal of European Public Policy. vol 6 no2 June 1999.
check Mark Pollack, 1997, ~Representing diffuse interests in EC policy-making, J Eur Publ Policy vol 4, 4æ 572-90. - there is no mech for controlling cummulative unintended consequences (Lord, ARENA presentation).
Perhaps pursue two strategies - output and input legitimacy - drawing the conclusion that each ends up either constraining or transforming comitology as it exists, without making clear that these are plausible.
… if it be asked, what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions.
{Locke 1963 #230}, sec 93
Some note of Scharpf's focus on outcome legitimacy. He assumes that future of welfare state is the overriding challenge for legitimacy.
Introduction...... 2
Legitimacy and the need for stability...... 2
1 What Comitology is...... 2
How Comitology works...... 3
Why Comitology worries...... 3
2 Considering Institutional Suggestions...... 5
3 Two Normative approaches: Regulatory State and Deliberative Supranationalism. 7
Three reasons to talk: alternative conceptions of deliberation...... 7
4 Regulatory State...... 8
Role of Deliberation: for Mutual Advantage...... 9
Institutional implications...... 9
Problems...... 10
5 Deliberative supranationalism...... 12
The role of deliberation: Pure Procedural Validity...... 12
Institutional implications...... 13
Problems...... 15
6 Lessons and challenges...... 20
The role of Deliberation: Epistemic...... 20
Institutional focus - how shape the 'constitutional' backdrop for bargaining and arguing?...... 20
Introduction
Legitimacy and the need for stability
The mutual expectation of future compliance is central for a stable political order[1]. Such expectations and such compliance cannot be exclusively based on the fear of sanctions 'all the way down' - thus Thomas Hobbes noted that "If men know not their duty, what is there that can force them to obey the law? An army, you will say. But what shall force the army?" Sustained and willing compliance with political authorities require a general belief that most citizens know that they have reasons to comply. That is: two senses of legitimacy are closely connected. Social legitimacy - or compliance as I shall refer to it - often requires normative legitimacy, which I henceforth refer to as legitimacy unless otherwise noted.
A broad range of normative theories hold that these reasons for compliance cannot be exclusively self-interested, but must also include some other-regarding reasons, eg expressed in a commitment to the common weal, or with respect for the equal dignity of all.
The question with what right Europeans can expect compliance of one another emerges with full strength as the European Union unmistakably takes on more and more characteristics of a new legal order with binding public practices[2] - indeed, claiming overriding authority over a well-neigh unconstrained domain of issues through the doctrines of Direct Effect, Supremacy and Implied Powers[3]. Given the links between complance and legitimacy, it should come as no surprise that scholars of both normative and empirical stripes are acutely aware of the need for normative theories of legitimacy for the Union. The challenge is particularly striking with regards to comitology, one of most perplexing and by some lights most worrisome elements of the European institutions. Dehousse notes the links between compliance and legitimacy when remarking that "Comitology's legitimacy is not merely a normative issue: it is likely to become a political problem."[4]. And Andersen and Burns identify two important challenges:
(1) to develop normative principles and guidelines that effectively regulate and hold acountable agents engaged in organic governance; [in particular].. Find role of organizations in governance, and their norms - expressed in a constitution defining them in "terms of norms and values of democracy and define rights, limits and responsibilities."[5], and
(2) to reconsider and redefine the role of parliamentary bodies[6].
The present essay explores some problems involved in the first of these two challenges, by presenting and critically assessing two recent attempts at justifying comitology.
1 What Comitology is
Comitology are the bodies de facto in charge of implementing secondary legislation in the European Communities[7], exercising the powers of implementation delegated to the Commission by the Council. As auxiliary institutions for the Commission, they lack formal regulatory competence[8].
Much more about the various kinds, their powers, and composition, some such differences also affect the normative arguments surrounding each kind.
Advisory committees
they give their opinions to the Commission which must take the utmost account of them. This straightforward procedure is generally used when the matters under discussion are not very sensitive politically.
Management committees:
where the measures adopted by the Commission are not consistent with the committee's opinion (delivered by qualified majority), the Commission must communicate them to the Council which, acting by a qualified majority, can take a different decision. This procedure is used in particular for measures relating to the management of the common agricultural policy, fisheries, and the main Community programmes.
Regulatory committees:
the Commission can only adopt implementing measures if it obtains the approval by qualified majority of the Member States meeting within the committee. In the absence of such support, the proposed measure is referred back to the Council which takes a decision by qualified majority. However, if the Council does not take a decision, the Commission finally adopts the implementing measure provided
The committees are neither purely intergovernmental nor a supranational body, and are variously referred to as a sort of 'political administration' , 'policy 'subgovernment'', or an 'infranational element[9]. Comitology is sometimes said to exemplify governance[10], as it consists of nongovermental actors lacking legally prescribed responsibilities and coercive power , yet has practically inescapable impact.
- an example of Pluralist Policy networks? -cf. Scharpf 1999, 18-21: regards it as implausible to reach the various normative requirements, but useful in finding effective solutions, and interaction preceding formal decisions. Perhaps pursue this, combined with Majone- arguments, in an "outcome-oriented" justificatory strategy??
Comitology is often described as a central element in the constitutionalisation that the European Union finds itself stumbling into, transforming the economic cooperation into something more of a political and legal order[11].
How Comitology works
- drawn mainly from the Glossary on Institutions, policies and enlargement of the European Union[12]. The Committes include members from Member States, often with technical expertise, (Some committees - advisory committees? include also) with independent experts and representives of industry or other stakeholders expecting that the suggested regulations will have an impact on their interests[13].
Under the Treaty establishing the European Community, it is for the Commission to implement legislation at Community level (Article 202 of the EC Treaty, ex-Article 145). In practice, each legislative instrument specifies the scope of the implementing powers granted to the Commission and how the Commission is to use them. Frequently, the instrument will also make provision for the Commission to be assisted by a committee in accordance with a procedure known as "comitology".
The committees which are forums for discussion, consist of representatives from Member States and are chaired by the Commission. They enable the Commission to establish a dialogue with national administrations before adopting implementing measures. The Commission ensures that they reflect as far as possible the situation in each country in question.[14]
Why Comitology worries
Major problems of Comitology include the violation of political accountability, of equal access, transparency and representation.
The European Parliament has challenged comitology as undemocratic and obscure[15], a prime area where the de facto and de jure powers at EU level are not sufficiently under democratic indirect control.
- Unchecked by (European) Parliament or any other single elected body
Comitology is unlike corporatist mechanisms or lobbying in that such activities are -- at least formally -- regulated by national parliaments that remain sovereign to overrule such processes[16]. Comitology, on the other hand, remains formally and de facto beyond the control -- and hence beyond the responsibility and accountabity -- of any single directly or indirectly elected body.
- Informality, opacity and fluid modus operandi minimizes other accountability,
Even for the representatives of Member State governments in comitology, both accountability and representational influence is limited.
The informal, fluid and opaque workings of committees enjoying influence but not formal competencies reduce the ability to determine whether the Member State representatives actually secure their constituents' interests or preferences[17], and whether the Commission actually steers[18].
- Risks misrepresentation of interests through socialisation
Moreover, a high likelihood of socialisation gives reasons to fear that Member State representatives and other committee members are likely to socialise partly into the role and commitments of independent experts or that of the Commission, particularly during iterated cooperation [19].
- Instrument of the Commission
Comitology adds to the already impressive information-regulating and agendasetting capabilities of the Commission, harnessing Member State interaction and European Parliament influence.
Access and composition of committees depend on the Commission[20], beyond the control of elected representatives.
Furthermore Comitology is only responsible to Commission, which can also decide whether a committee shall be heard so as to further the Commission's goals of harmonisation, the topics available for package deals, whether a committee shall decide by unanimity or by majority vote, and the time table to allow or prevent domestic consultations[21]. Uncertainty about this rule adds to the challenge of accountability - what pressure representatives faced in arriving at a common position. The Commission is thus able to prevents participation, reduce comprehension of alternatives and reduce agenda control for other actors and the public at large[22] For instance, the agenda of the Standing Committee on foodstuffs is set by privileged contact, and difficult to get except through privileged contact[23].
- Skews representation: self-nominating and self-representing members
The committee members are often self-nominated actors in the market polity and networks[24]. Moreover, these groups and experts represent themselves, and are not accountable to others.[25] Experience about the skewed ability of affected parties to organise[26], these two features suggest that comitology suffers from unequal access, in violating of standard precepts of political equality[27]. In comitology resourceful agents enjoy undue influence not only within the rules set up by the EU, but also - by invitation - to set the rules of the game[28].
- Skews arguments and filters preferences
The partial quasi-constitutionalisation of comitology concerns, among other elements, a conception of appropriate arguments. Arguments based on scientifically supported data concerning market efficiency, health or environment count[29], while other important elements not regarded as common interest at the European level fail to register - such as employment.
There are several worries with this feature of comitology.
Firstly, there is a risk that issues of common concern fail to reach the agenda, because they fail to register as such by the partial quasi-constitution[30]. The filters define some problems and blinds comitology to others.
Secondly, there is no reason to believe that those interests Member States have reason to believe are best secured at the European level, also are those interests that should be given overriding force - nor that common solutions to common problems will not create larger problems regarding other interests. Yet Supremacy easily has this effect.
Thirdly, any filters grant a privileged role for some arguments and actors, for instance those with access to scientific[31] or legal[32] expertise. So governments' and other parties' ability to pursue policies will depend on their ability to present convincing arguments - which is often a matter of the perceived economic benefits to a firm.
Furthermore, such filters may suggest that such data and arguments are separable from 'contested', political values.[33] The problems with this position is often illustrated by what counts as tolerable risks, including the BSE crisis[34]
- Consensus may hide collusion
A related concern is that while committees may aid in reducing transaction costs by finding hitherto overlooked options, they also foster opportunities for manipulation. Opacity makes it even more difficult to determine whether committee consensus is a case of collusion against the public, a compromise between conflicting interests, or a common sense that this outcome is required for the sake of the common European weal. The opportunities for nested bargains flourish, where the participants may broker deals between outputs and rules of the game. Solutions to prisoners dilemma nested in battle of the sexes may inadvertently - or deliberately - skew the distribution of benefit in favor of the participants, [35] by selecting one of several outcomes which could secure unanimity, or QMV. When research is financed by industry such fears are rampant, fueled by the BSE crisis[36].
Given the real opportunities for abuse of power and discretion by the Commission through comitology, particularly against the backdrop of centuries of careful regulation of government powers within Member States through tediously delineated checks and balances and split powers, the lack of a normative theory for comitology stands out.
2 Considering Institutional Suggestions
The absence of a systematic political theory of comitology has not prevented a wide ranging debate of what is to be done - rather the opposite. Brief descriptions of some prominent suggestions for institutional reform and 'constitutionalisation' follow. A striking and challenging observation is that these proposals require systematic assessment, both since some selection must be made, and since some hard choices are allegedly at stake. Thus several authors note the tension between increased accountability, representativity and transparency, and such goal as efficiency and independence.
Transparency of committee system
Several authors note that while successful committees may require some confidentiality during the processes, for instance concerning pricing of agricultural products and grant allocation, openness may often be secured[37], by means ranging from publisising the meeting dates, agenda and member list of the committees, to allowing access for media or hosting public meetings and hearings.[38]
Add to the ends to be promoted
The Treaty of Amsterdam clearly goes beyond market 'de'regulation, increasing Community powers regarding risks concerning health and the environment. Foodstuffs regulation already balances nutrition policy, environmental issues, etc. Carefull adding to the ends of secondary regulation may ensure that a broader range of citizens' interests are protected and promoted, on the basis of a quasi-constitution that appears less partial than at present.
-Employment, Social cohesion
For instance, in principle, committees could be charged with weighing impact of regulations on (long-term) employment or other elements of social cohesion, as well as concerns for market, environment and safety, drawing on the Amsterdam Treaty Art 126 concerning employment policies.
Such modifications are unlikely and disputed. Given ideological disagreements about proper role of government vis-a-vis markets and the responsibilities of the Community vis-a-vis the Member States, agreement is unlikely on further common interests to be blended into comitology [39]
Regulate participation and access to committees
Some seek to reduce the biases of access to comitology, some indeed seeing this as a channel for direct democracy[40]. A clearing house could resolve requests for standing committee participation[41]. But who should be included? Some argue that civil society (Nongovernmental actors) and the interested public should participate [42], as was apparently formerly more common[43]. Others hold that only cross-state groups should participate in EU policymaking, better to take account of diffuse interests[44] . For technical standardisation European associations should be included, suggestions are also made socio-economic interests should be secured. Watchdog bodies such as EP committees could be awarded rights of locus standi[45].
Judicial Review
Comitology can be regulated by a variety of checking mechanisms[46] that reduce the risks of abuse by committee themselves, and reduce the control enjoyed by the Commission. Judicial review of procedural requirements is a central solution[47]. For instance, there may be clear rules for when committees or the Commission must take expert advice into account[48]. Some would also add review regarding more substantive issues, eg. whether stated mandate has been followed, or whether all appropriate sets of concerns have been considered in the deliberations - for instance along the lines of art 190EC, imposing a duty to state reasons. Many foresee that such juridification would reduce the informal strength of the comitology networks. Strikingly, these effects meet with disparate responses: some regret the reduction of power, others fear that these measures will not reduce comitology influence enough[49].
Increase real opportunities by other bodies to override or revocate
One response to the legitimacy deficit of comitology is to reduce its impact. Various measures could increase the formal and real ability of other, more accountable bodies to override or revocate the recommendations and decisions of comitology and the Commission[50].