'Comitology' fix sidesteps EU democratic deficit, leaving industry wary

21 February 2017. By Magnus Franklin*.

Few neologisms cause more consternation in Brussels than the c-word — "comitology."

Though the name smacks of an arcane cult, it refers to closed-door committees of unidentified experts who flesh out EU laws on everything from mobile-roaming fees to genetically modified crops.

The European Commission proposed last week to inject "more transparency and accountability" into the procedure, seeking to make comitology more democratic. But critics say the proposal merely changes details on how to resolve entrenched conflicts, ignoring the legislative elephant in the room.

The real problem, they say, is that a system created to resolve small-bore technical details is increasingly being deployed to make politically loaded decisions that EU lawmakers shirk. The process allows feuding co-legislators to simply pass the buck to committees for arbitration. In short, unelected officials are adopting policy in the backroom.

While comitology may help break stalemates and get controversial legislation up and running, its long-term impact has been to leave the door open to political meddling in supposedly minor implementing measures.

The abdication of legislative responsibility has contributed to some notable train wrecks: The car-emissions scandal known as "dieselgate," the botched stumble toward "eliminating" roaming surcharges and, most famously, the bitter clash over whether to allow genetically modified food in the bloc.

This explains why the commission's proposed revamp urgently needs to clamp down on the abuse. But while the suggested changes might prevent a repeat of the GMO impasse, they fall short on other fronts.

Politicized technocracy

Comitology took its current form in a 2009 update of the treaties governing the EU. This revamp was itself a response to concerns about opaque decision making and was intended to tackle two specific shortcomings.

For starters, the new process covered implementing acts — procedures for agreeing to detailed rules that can't be made at national level because they need to be consistent across the EU.

This procedure resembles the one that national governments use when they write EU directives into their domestic statute books. National parliaments are free to decide which laws to amend and to work out elements that have been left to the state's discretion.

For example, national lawmakers have leeway to write precise rules on how consumer disputes should be resolved and how old children must be before being targeted by advertising. Implementing acts work the same way, on a European scale.

The second procedure is for purely technocratic legislative updates that are required when circumstances change over time. These are known as "delegated acts."

For this category, EU lawmakers have delegated to the commission the power to nail down policy details. For example, the EU's executive arm might need to prepare a list of airlines that aren't allowed into the bloc's airspace because they don't meet safety requirements.

Intent and outcome

The intention of the 2009 treaty changes may have been good. But in practice secondary acts are often used as weapons in political clashes. The European Parliament is particularly skeptical, often accusing the commission of using the acts to grab more power.

But this secondary lawmaking can also allow negotiators from parliament and national governments to avoid making political decisions in hopes that the commission will strike a compromise where they failed.

This leaves the commission to shoulder the full political burden: The executive branch will be blamed for decisions that national governments and EU parliamentarians were unwilling to make, while the public will lament a process that has put technocrats in charge of political decisions.

This can happen and does happen: A logjam over genetically modified organisms, for example, found its way to comitology after national governments were unable to agree. That incident is what triggered the commission's latest attempt to find a solution.

Mobile roaming

The recent impasse on mobile-roaming rules offers a case study in comitology.

Last year, EU legislators were determined to deliver on their promise to end fees for mobile-phone users crossing national borders within the region. But when they offloaded details of the revamp onto the comitology process, the commission found itself on the receiving end of some real anger.

The EU's 2015 roaming bill merely promised to end roaming surcharges, forcing the commission and a committee of national experts to sort out the rest. Control of the implementing acts put the EU executive in an invidious situation: It had to pick winners and losers in Europe's telecom market.

Caught between two equally strong blocking minorities in the Council of Ministers — the legislative body for EU governments — the commission had to engage in some high-level dealmaking at a national level to get the implementing act approved. But on paper, the ministers had nothing to do with that agreement and refused to take responsibility for it.

The horse-trading left the legislation worse for wear, too: Its complexity ballooned amid the divisive skirmishes.

The commission was also castigated in 2015, shortly after it emerged that Volkswagen had used software to cheat on diesel emission tests. Members of the European Parliament's environment committee objected to a deal struck between the commission and EU governments on how much time authorities would grant carmakers to come into line with the bloc's emission standards.

The deal, which came about in comitology, phased in the standards in a way that parliamentarians said had retroactively moved the goalposts for the industry. And it was all done without the assembly's input (see here).

But it's the flap over genetically modified food that has become emblematic of comitology's shortcomings. This is why the commission's proposed revamp homes in on an appeals procedure triggered at the very end of a comitology procedure, when neither side wants to give in. That's what bogged EU governments down on GMOs.

The planned changes do little, however, for dossiers that don't reach the final appeals state, leaving most comitology files mired in a lack of transparency and accountability, with unhappy civil servants forced to become political decision makers.

Democratic deficit

The comitology crisis is set to get worse. Cybersecurity legislation is a case in point, with bills now winding their way through the secondary-law machinery. Some of the world's most stringent privacy laws, currently in the works, will face a similar process.

Every policy tweak carried out through implementing and delegated acts could cost companies millions of euros — which is why industry is wary of becoming collateral damage in a clash they would have preferred to see play out openly. Civil-rights groups are equally concerned that the system clears the way for corporate lobbyists to smuggle their arguments behind the closed doors of comitology meetings.

If "democratic deficit" means the lack of elected officials making decisions, then comitology requires a root-and-branch overhaul, which isn't what the commission has proposed.

So the commission will remain in the hot seat. National governments will continue to pass the buck on controversial decisions, while the EU executive's much-maligned unelected bureaucrats will continue to attract contempt for meddling in the supposedly democratic processes of European law craft.

* Additional reporting by Laurel Henning

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