Plus ça change...

Today I had the opportunity to attend a very interesting Book Discussion on the upcoming new book by Héritier et al. about the European Commissions old and new powers of delegated rulemaking and implementation. (The somewhat awkward avoidance of the words "delegation" and "comitology" are at the insistence of some of the speakers.)

While the book deals mainly with the pre-Lisbon transition from having only the Regulatory Procedure (under the Comitology Decision) as the most drastic legislator-scrutiny to having the Regulatory Procedure with Scrutiny as well (cf. also this 2009 Working Paper by Héritier), the discussion focused mainly on the consequences of the entry into force of the Lisbon Treaty. And this looks like it is going to be great fun.

As a reminder, this is what the Treaty on the Function in of the European Union now says about these two categories:

Article 290

1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:

(a) the European Parliament or the Council may decide to revoke the delegation;

(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.

For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.

3. The adjective ‘delegated’ shall be inserted in the title of delegated acts.

Article 291

1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.

2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.

3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

4. The word ‘implementing’ shall be inserted in the title of implementing acts.

So there is delegated lawmaking under art. 290 TFEU and implementation under art. 291 TFEU. A classic example of the former is the right of the Commission to amend an Annex to a piece of legislation, while a clear-cut case of implementation consists of simply applying a pre-existing rule to a specific set of facts. (As we discovered, though, in practice this distinction can become quite arbitrary quite quickly.)

[As an aside, there was a little discussion about whether the two conditions of art. 290(2) are the only possible conditions. Having read the text now, I'd agree with the Commission and Council legal services that the list is indeed exhaustive. Re-introducing Comitology one Legislative Act at a time would not be permitted.]

The benefit of this reform is clear: While in the past the delegation of powers to the Commission was essentially unstructured, with the Community Legislator being free do do as it pleased, now these mechanisms are tied to strict requirements as to definition of scale and scope, and open to being annulled by the CJEU in case the Legislator goes too far.

At the same time, of course, it represents a significant power grab for the Commission, and one that apparently was rooted in the Constitutional Convention and not substantively discussed at either the 2003-2004 IGC or the meetings preparing the Lisbon Treaty. Unsurprisingly, this displeases the Council - notwithstanding the fact that they ratified this treaty - so they try to claw back this power. As far as I can see, they do this in two ways. (I'm reading between the lines a little bit, because the discussion involved representatives of the Parliament and Commission Secretariats, but no one from the Council.)

First of all, and most obviously, it tries to shift as many 290-proposals from the Commission to 291 as possible. Under the Lisbon Treaty, this is not always possible, but the Council Legal Service tries to redraft the Commission proposals so that they fit within the remit of the implementing article. As the Commission official said, this cannot go on forever. Eventually the European Institutions will end up before the Court of Justice in order to have it define the distinction between these two articles. The fact that the Commission has already adopted a Communication on this issue is less important. Of course they did so: having a rule for choosing between art. 290 and art. 291 helps them resist pressure from the Council to negotiate about this question. However, this rule is likely to strike the balance too far towards art. 290 - the option that gives the Commission more power - so it is unlikely that the CJEU will follow the Commission's approach wholesale.

The second response by the Council consists of an effort to exploit the "Expert Groups" now organised by the Commission to facilitate its decision making under art. 290 TFEU. These meetings are not formally the same as the old Comitology committees, but they serve many of the same functions. They provide the Commission with the opportunity to gauge the likely response of the Legislator to something they are thinking of doing, and to improve the legitimacy of such acts. The Council, in its turn, is attempting to transform these meetings into de facto Comitology committees. While obviously a "No" vote no longer carries the same penalty as before, I do not see how the Commission can afford to displease the Council too frequently in these meetings, certainly on sensitive issues like GMOs. (Sensitive for the Council that is. The Parliament has entirely different sensitivities.) A clear example of the Council's attempts to turn these Expert Groups into de facto Comitology Committees is their attempt to get rid of the Parliament's representation there. If the EP is represented, it is much more difficult to pretend that the meeting is anything other than consultation.

In the end, while I'm no expert (or no expert anymore, having been away from Brussels since 2006), reading between the lines I'd tend to agree with Mr. Bergström, one of prof. Héritier's co-authors. He argued throughout that this reform was much less drastic in practice than it was on paper. While this depends a little on where the CJEU will come down, I suspect the result will be a sufficient pushback from the Council that the ultimate shift on the balance of power will favour the Commission only a little more than it did before. (Especially as long as the Council keeps appointing "weak" Commission Presidents like Barroso.) Plus ça change, plus c'est la même chose...