Examination of Witnesses (Questions 1-19)
Professor Steve Peers and Professor Anne Rasmussen
23 APRIL 2008
Q1 Chairman: Welcome to the European Union Sub-Committee
E (Law and Institutions). Thank you for coming. We are on air;
the proceedings will be recorded and afterwards a transcript will
be available for you to make any comments or supplementary observations
by reference to it. The position relating to interests is that
they are declared and available in the Register of Interests,
so far as Members of the Committee have interests which might
be relevant to this inquiry. This is the first evidence session,
so you must expect us to be starting from a relatively low level.
Thank you for your papers. May I start by asking what you understand
by the term "right of initiative" in the context of
EU legislation? Who has it in law and in what circumstances? And
perhaps begging that question slightly, what was the purpose of
granting the right of initiative in the First Pillar almost exclusively
to the Commission and do the reasons still hold good?
Professor Peers: Thank you, My Lord Chairman. I suppose
the concept of the right of initiative is at least partly a legal
concept, although its application is political. I have never liked
the term "right of initiative" because I think it is
more accurate to call it a "monopoly of initiative",
to the extent that it is a monopoly. The Commission likes to call
it a right, but I think that it is less misleading to call it
a monopoly. Who has the right of initiative? The Commission has
it as regards essentially all Community legislation, except for
certain types of very technical or procedural issues, such as
the Council's Rules of Procedure, for instance—obviously,
the Commission does not have a monopoly there—or the Statute
of the Court of Justice, where either the Court or the Commission
can make a proposal. Otherwise, it applies to all Community law.
The interesting thing is that as regards the Second and Third
Pillars—I want to make some specific comments about the
Third Pillar later on—it is shared between the Commission
and the Member States. Looking particularly at the Third Pillar,
you get an idea of what would happen if the right of initiative
was shared across the board. Perhaps I can talk a bit more about
that more later when we talk about the statistics on who makes
proposals in specific areas. In the Third Pillar, the Commission
and the Member States are roughly equal in making proposals. In
the Second Pillar (foreign policy) the Commission tends not to
make them but refrains from making them for whatever reason. Otherwise,
for almost all Community law, it has the full right of initiative.
For a five-year period they have to share it as regards immigration,
asylum and civil law and, again, Member States were quite active
during that five-year period in making proposals. If the Commission
did not have the monopoly of initiative, Member States would be
making a significant number of proposals. We have proof of that
from having that separate area of justice and home affairs, where
they have had that power and have used it. What was the purpose
of granting the right of initiative to the Commission? I do not
think we can be certain of that; it is a more political question,
obviously. Probably, the intention was when the context of the
Community was purely economic and also more technical, because
the issues, given the more limited scope of the Communities' powers
in 1958 and the more limited objectives of the Community in the
very beginning for both political and technical reasons, it was
felt better to give the exclusive right to the Commission, because
these were technical issues so, therefore, you could trust it
to a secretariat or a civil service to have the right of initiative.
But, to the extent that they were political, and there were some
economic interests of the Member States involved, it would be
better to let the Commission, as a neutral observer or neutral
actor in the institutional framework, make those proposals rather
than for the Member States to do that, because the assumption
would be that Member States might make proposals in their own
economic interest and the interests of the Community would not
be so well represented. Perhaps a further political reason is
that the Commission has always been seen as the guarantor of small
States' interests; the small States might in particular—the
original small States, but probably those who have joined since—agree
that they would want the Commission to have that monopoly of initiative
because it would then weaken the possibility that they would be
overridden by the larger Member States, which is a likelihood
if Member States were able to exercise the right of initiative.
Q2 Chairman: I would like to pick
up the dichotomy you drew as to the rationale. Either the issues
were technical, in which case presumably they were not going to
be political, or if they were political, they were best entrusted
to a non-political body. That really covers the whole field. Does
that explain it?
Professor Peers: Yes, I think that would be
the explanation of it.
Q3 Chairman: Is there anything you
would like to add to that, Professor Rusmussen?
Professor Rasmussen: I can fully support what
Professor Peers has already said. The only thing I would like
to draw attention to would be that from a political science perspective,
we could understand the right of initiative in both the narrow
and broad sense. Right of initiative in a narrow sense would be
about the possibility to put forward a proposal; a proposal power
in itself. If we understand the right of initiative in a broad
sense, which I would very much encourage Members of the Committee
to do, it is important to be aware of the additional powers that
the Commission has during the policy process, which it can use
to protect its proposal. I am referring here, for example, to
the Commission's possibility to influence the required majority
for adoption within the Council. It is important for someone who
puts forward a proposal how easy it is to get that proposal adopted
in the end. As the Committee Members are probably well aware,
there are many instances where the Commission has the possibility
to force the Council to agree to its proposals by unanimity if
it disagrees with the text that is on the table. Additional powers
that would be very important to be aware of are the powers to
withdraw legislative proposals during the policy process, which
the Commission has, at least in formal terms; and finally, there
is also the additional power that is very important to be aware
of, which is the Commission's formal power to amend legislative
proposals. What we will talk about later on, I hope, during this
hearing, will be how these formal powers are applied in practice
because what is very interesting with having selected a topic
such as the Commission's right of initiative, is that it is a
very good example of a formal legislative power that is not used
in the same way in practice as one would think, if one only read
the Treaty text itself. There are substantial modifications of
how all of these formal powers are used in practice, which effectively
means that it may not only be the Commission that has the right
of initiative in the European Union in practice.
Q4 Chairman: That is extremely interesting
and relates to my next question. Just before I get there, as to
the three headings of additional power, which you have mentioned,
I understand the last two, but the first was to influence the
required majority in the Council and to force the Council in some
context to agree its proposals. In what sense is that a formal
power?
Professor Rasmussen: It is a formal power in
the sense that it is written into the Treaty. Basically, the Treaty
says that in certain circumstances—and we are talking about
the circumstances where the Council has the possibility to adopt
proposals with a qualified majority—for example, in the
consultation procedure, the Council will have to adopt the decisions
by unanimity if it wants to change the Commission's modified proposal.
This is a formal power because, in practice, it is very sensitive
for the Commission for political reasons to force the Council
to do that, but it is a formal power that it has according to
the Treaty. It is also a formal power that the Commission, for
example, has in the second reading of the co-decision procedure.
Q5 Lord Jay of Ewelme: May I ask
one point of clarification. When you are talking about the additional
powers that the Commission has, are you talking just about additional
powers that the Commission has because of amendments to the Treaty
following various intergovernmental conferences, or are you talking
about powers that the Commission has taken over time through the
practice of the powers in the Treaty? Are they formal changes
or changes in the way that the Commission has managed to operate?
Professor Rasmussen: No, these are not changes
in the way that the Commission has managed to operate. These are
powers that the Commission has had in the Treaty for many years.
Where you will find changes is in the way these powers are applied.
Very often, even if the formal powers are there in the Treaty,
it is politically very sensitive for the Commission to use them.
So, I think you would see, over time, a decline in the extent
to which these formal additional powers are used in practice.
Q6 Chairman: I am going to ask the
Legal Adviser to give us the Treaty references. You have probably
got them off by heart, yourself.
Professor Rasmussen: Yes.
Q7 Chairman: The next question follows
from what you have just said about the substantial factual modifications
over the years. I would like to ask you to outline what there
have been and perhaps also why they have occurred.
Professor Rasmussen: I have written an article,
which I do not know if the Committee Members have been able to
have a look at, but I will send it to the Committee Members afterwards,
if not.
Q8 Chairman: Yes, we have and we
are extremely grateful.
Professor Rasmussen: Basically, that article
outlines first how I understand the right of initiative in a narrow
and broad sense. What it then subsequently does is to go over
these different powers and show how they have been modified in
practice. If we, for example, take the right to propose legislation,
it is clear that from a formal point of view it is only the European
Commission that can put forward a legislative proposal. However,
in practice, we have very often seen that these proposals are
not drawn up by the Commission in a closed room, without paying
attention to what is going on in the world around it. Very often
these proposals are drawn up in response to concrete requests
by the other institutions, or to live up to international obligations
that the Union has entered into. This means that even if it is
the Commission that submits the formal proposals, there are other
actors on the European scene who have important agenda-setting
powers.
Chairman: I am afraid we will have to
go and vote now, but will resume shortly.
The Committee suspended from 4.33 pm to 4.49
pm for a division in the House
Q9Chairman: You were dealing with the factual
development of the position in respect of the right to initiate
legislation.
Professor Rasmussen: Yes. I will continue. If
you have my article in front of you, you can look at page 248.
If you do not, I will make sure that it gets sent to you.
Q10 Chairman: We all have it.
Professor Rasmussen: Basically, table 1 outlines
the eight developments that I am looking at, which reflect modifications
in the way these rights are used in practice. I have already mentioned
the first one, which is that often these proposals are drawn up
in response to requests by other institutions. You have the statistics
in table 2. You have to be aware when looking at these statistics
that they are produced by the Commission itself, so there might
be some strategic purpose behind them as well, in the sense that
the Commission would not over-exaggerate the number of proposals
that it initiates based on its own judgment. The Commission might
have an incentive to signal to outside actors that most of the
proposals are drawn up in response to requests by other institutions
or international obligations. Having said that, even if there
is some scope for interpretation, it is very clear what the trend
is, which is that there are very few proposals that originate
from the Commission itself.
Q11 Baroness O'Cathain: These statistics
are from 1998, which is ten years ago. Has it changed markedly
or are the proportions still the same?
Professor Rasmussen: That is a very interesting
question. We only have these statistics if the Commission itself
produces them. We have similar statistics from another year which
present similar findings but I cannot provide you, for example,
with statistics from last year because they have not been produced.
The Commission would probably say that the figures are similar
nowadays, but I cannot give you firm evidence here because I do
not have the data available from later years.
Q12 Chairman: One could do an exercise
of looking at certain proposals. In this Sub-Committee, we see
many proposals which derive from Tampere, for example, and avowedly
so. Could you explain table 1, item 2? I did not entirely follow
it.
Professor Rasmussen: Yes, that is another example
of how the other institutions—in this case the Council of
Ministers and the Parliament—have tried to encourage the
Commission to put forward legislative proposals, not by using
the formal rights that these two institutions have in the treaties,
according to which they can invite the Commission to put forward
a legislative proposal, but instead, by writing into concrete
legislative acts adopted that the Commission must submit a proposal
before a given date. These would be concrete regulations or directives.
Let us say the institutions are negotiating a proposal on gene
modified organisms. Very often, in order to agree to the proposal,
part of the compromise will then be that the institutions decide
to write into the final legislative text that there are remaining
issues out there, on which the Commission is required to put forward
such legislative proposals. It is relatively clear, of course,
that the Commission is not very happy with this and there has
been much discussion between the institutions, which has led to
serious inter-institutional disagreements. Now that the relationship
is a bit calmer, it is still the case that these provisions are
often written into the legislative acts but a standard formulation
has been agreed to, which is interpreted as being less constraining
on the Commission. The Commission would always claim, of course,
that it has the exclusive right of initiative and that it is not
bound by such provisions in the legislative acts being agreed
to by Parliament and the Council. Politically, it would probably
be quite difficult for the Commission not to live up to such requests.
Q13 Chairman: Is there a shift here
towards institutions which may be regarded as being more directly
representative of the Community as a whole? Is that part of the
underlying reason for the change, or is it simply a shift in institutional
power?
Professor Rasmussen: That is difficult to judge,
because the Council has been doing this for many years. The new
thing in co-decision is that it has very much been the Parliament
that has tried to use this tool in order to force the Commission
to come up with legislative proposals, but it is not a new practice
for the Council to try to constrain the Commission in this way;
it is something that we have seen before.
Q14 Lord Jay of Ewelme: Following
on from Baroness O'Cathain's question, I think that I am right
in saying that after the Single European Act was passed in 1986
and entered into force, an enormous number of legislative proposals
and directives came forward, in order to implement the single
market programme. Would they be classified in your table as adaptation
of Community law, or as new initiatives?
Professor Rasmussen: I would think that they
would be in the first category, but I cannot give you firm evidence
because I have not produced the statistics myself. These are statistics
that were produced by the European Commission in a document prepared
by the Commission to the European Convention. The Commission provided
the European Convention with a contribution where it outlined
how its right of initiative is being used and applied in practice.
Q15 Lord Jay of Ewelme: Do you know
whether there are any statistical analyses of the subject-matter
of proposals and how that has changed? In other words, in the
late 1980s and early 1990s, a huge number of proposals were related
to the single market, then that has fallen away and I suspect
there have been more in relation to the Third Pillar. Is there
any statistical evidence which shows the subject-matter of directives
over time?
Professor Peers: I do not know of anything that
the Commission has produced to show that. But to answer your earlier
question, it is possible that the Commission would have defined
the single market proposals as a response to a request from the
European Council, which had approved in principle the idea of
the single market. But, of course, it is one thing to say in principle
we should have a single market and another thing to be responsible
for drawing up nearly 300 pieces of legislation. And the list
dealt with the legislation as well, which is what the Commission
did. You could describe it as a shared right of initiative in
political terms but then you have to look at the details to see
how much of the initiative really rests with the Commission—in
that case, a tremendous amount—having to define the list
and then make the proposals for legislation, and how much rests
with the European Council—in that case, not very much, because
it agreed with the basic idea of the single market without at
first going into much detail. The European Council only did so
in response to lobbying from the Commission President Jacques
Delors. He defined it as something he thought could be a major
project for the Community and convinced the EU prime ministers
and presidents of the idea. You can trace the European Council's
role back to him. If he had not convinced them to agree to it,
it would have had much less weight as an initiative purely coming
from the Commission with no endorsement of the European Council.
If they had rejected it, it would not have got very far at all.
In a sense, you need both of them to work together for the political
right of initiative to be effective.
Q16 Lord Burnett: But as for the
actual basics of these 300 pieces of legislation, they would emanate
from the Commission, which would then have its own ideas and presumably
put them forward?
Professor Peers: Absolutely. Legally, it has
to be the Commission that makes the proposals. There is a lot
of political science and economic research about the 1980s period,
saying that the Commission was strongly influenced by a coalition
of large industrial groups, to push for the internal market in
general and presumably also to influence the details of legislation
as they affected each particular area of industry. If you want
to look at the idea of an informal concept of the right to initiative,
there is that role, that private sector role, in pushing for the
single market to be completed in the first place and then pushing
for the scope of ambition and to some extent for the sorts of
details that were in the legislative proposals.
Q17 Lord Burnett: Presumably, much
lobbying goes on of the Commission by various interest groups?
Professor Peers: Exactly, and that is also a
well-studied topic. Once the proposal is made, the lobbying goes
on in the Council and in the European Parliament. Certainly, in
that initial stage ...
Q18 Lord Burnett: That is a very
important stage, that initial stage.
Professor Peers: Of course, because you can
set it in stone. Also, lobbying sometimes is a negative; to try
and get the Commission not to make a proposal because you fear
from your industry point of view, or NGO's point of view, that
this is going to be a negative development, something you do not
want to see, then it is very important to convince the Commission
not to make the proposal because then nobody else can make it;
no one else formally has the right of proposal; neither the Member
States nor anyone else can formally put the issue on the table.
If the Commission is not willing to make it, no matter how much
pressure is placed upon it, then the issue is off the agenda.
Q19 Lord Burnett: It is dead?
Professor Peers: As long as the Commission does
not make the proposal, it is dead, for as long as the Commission
does not do that. It could always change its mind, but for as
long as it does not make the proposal it is going nowhere, it
is not even alive, it has never been born.
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