Supplementary memorandum by the Rt Hon
the Lord Kinnock
How are the Commission's ideas of future legislation
generated within the Commission itself? How does the Commission
develop those ideas? Does the culture of the Commission encourage
officials to generate ideas for legislation?
Generation of draft legislation depends on the
nature of the legislation and, in particular, whether it initiates
new policy or recasts or amends or updates existing law and policy.
(NB attached summary of 1998 Commission report to Council com
98715.pdf.) In any event, the Commission is at the centre of an
extensive plexus of what could be called "constant consultative
networks" and draws heavily on ideas fed from those sources.
Those networks cover just about every conceivable speciality and
they range from the Council's working parties and expert groups,
to the Member State Permanent Representatives, to the European
Parliament's Committees, to the Commission's own "comitology"
Committees, to countless NGOs, representative business, social
and local government organisations, to lobbyists (of varying status
and dependability), to the Commission's consultative data bases
(stakeholders in particular areas of interest and concern), to
the Consultative Institutions (Committee of the Regions and EU
Economic and Social Committee). For all major policy initiatives
the Commission has (since the 2002 decision of the Prodi Commission)
launched formal Impact Assessments [detail in Com (2002) 276]
and Green Papers, White Papers and consultation exercises (including
on line) are the norm. Nothing that ends up as a proposal, in
short, comes "out of the blue" and it is rare for any
proposal to originate solely from within the Commission.
It is worth noting that the "culture"
of the Commission has changed greatly since the days of Delors
and—more precisely—the presentation and passage of
the avalanche of Single Market related legislation. Increasingly,
the Commission tends to look for dependable alternatives to legislation
to fulfil agreed policy objectives, and self-regulation and co-regulation
are, consequently, more commonplace.
In addition to all of the above, of course,
every proposal for legislation and policy is subjected to very
demanding examination inside and between the Commission's Directorates
General and cabinets.
How are the Annual Policy Strategy and the Annual
Legislative and Work Programme prepared? How is it decided what
should be included?
The Annual Policy Strategy (APS) and the Annual
Legislative and Work Programme (ALWP) are, of course, submitted
to the European Parliament as well as the Council and on the big
policy themes preparation of both involves political brokerage.
The major priorities have obviously become regular fixtures—global
warming and sustainable development, management of immigration,
better legislation and simplification, external relations and
so on are rarely missing. Within the Commission a process best
described as policy and administrative arbitrage boils the legislative
and work programmes down to those proposals which are considered
to be consistent with the major political priorities and essentials.
Arguments—sometimes highly combative—between cabinets
and between Commissioners are a natural and vital part of
these rendering activities and the influence and preferences of
the Commission President (and his cabinet) are crucial.
Since 2001, as a result of the Administrative Reform of the Commission,
Activity Based Budgeting (ABB) is also a significant consideration
in determining how the Commission uses its human and material
resources in the period covered by the APS and ALWP.
What arrangements are there for quality control—both
in terms of knocking out inappropriate ideas, and assuring the
technical quality of emerging draft legislation?
Apart from the legislative process itself, quality
control is provided by the internal (inter-DG and inter-cabinet)
argumentation, by the consultations, informal discussions in Council
Working Parties and with Parliamentary Committees (particularly
expert Members), pilot projects (where appropriate) and the mixture
of Green and White Papers, Evaluations and Audits. ABB also makes
a contribution because it obliges Directorates General and Commissioners
to prioritise proposals and thereby give more deliberate attention
to quality.
It has been suggested by the Law Society that
there is an absence of joined-up thinking in the Commission as
regards the preparation of legislation and that ideas are developed
in "policy silos". Would you agree?
There is some "silo" problem—it
is to do with the sociology of policy organisations in this and
other cases—but several efforts are made in the Commission
to keep it to a minimum. Among those efforts the Annual Policy
Strategy and the Annual Legislative and Work Programme processes
are deliberately designed to achieve greater coherence between
policies. Inter-Service (ie inter-DG) consultation and cabinet
and cabinet chefs' meetings are essential sources of
coherence and co-operation (as well as disputation). Commissioner
Working Groups are consciously used to ensure cross-portfolio
consistency. Having chaired such groups on Trans European Networks
(1995-99) and various aspects of Commission Reform (1999-2004)
I can testify to the effectiveness of this instrument. The current
Barroso Commission, for instance, established such a multi-portfolio
Working Group at the outset in order to produce the promised comprehensive
Maritime Policy Green Paper which is now providing the basis for
further refinements and developments in commercial and market
initiatives, shipping and port safety, quality and innovation,
maritime environment protection, fishing conservation and so on.
What is the role of the College of Commissioners
in the initiation and development of EU legislation?
The College of Commissioners undertakes and
(below and reflecting that) the meetings of specialised members
of Commissioners' cabinets conduct discussions and arguments
(sometimes over a prolonged period) to try to ensure that a proposal
has the broadest attainable backing. The College provides, in
that context, overall political guidance more than policy initiation;
it has the final word on the launching of proposals; and fastidious
Commissioners, individually or collectively, recognise their duty
to be thorough and to maintain or impede the momentum of proposals—often
according to sensible political considerations.
How effective is the Commission's engagement with
stake-holders? Is lobbying a help or a hindrance to good policy-making?
Responsible lobbying by reputable bodies can
be a help and, recognising that, the Commission has been trying
to establish general guidelines and rules of conduct for some
time—so far without success. I summarise my personal view
by saying that lobbying can be a useful servant but it is always
a bad master and Commissioners, cabinets and Directorates
General are best advised to act on that basis.
How influential are the other institutions? In
particular, what influence does the European Parliament have in
the initiation or development of legislation?
The European Parliament (EP) has increasing
direct (Article 192—in new Treaty A225) and indirect (APS,
ALWP) influence to some extent on initiation and to a greater
extent on development of legislation (reference to the 1998 Commission
report to the Council (ibid) is relevant to any answer to this
question. I also attach a page from Richard Corbett MEP's recent
book which gives a list of instances [Corbett, Jacobs and Shackleton,
"The European Parliament", p 239—not printed]).
How far do the conclusions of meetings of the
European Council set the agenda for legislative proposals? Has
the European Council's emerging role as a high-level decision-maker
weakened the Commission's role?
Terms like "weakening" or "strengthening"
in this context can be misleading. In reality, the Commission
has been settling down to what it needs to be and should be in
the enlarged and maturing Union:
a unique policy developing, law enforcing, administrative
executive with the right of initiative and accountable to Council
and Parliament, both of which (as a matter of political reality)
have become additional stimulators—prompters—of policy
and law. No democrat could argue that this evolution is harmful
or objectionable overall as long as the Commission is pragmatically
responsive but not deferential. [As an aside: I have long been
opposed to the election of the Commission President by the EP
simply because it could quickly, in the nature of the metabolism
of politics, produce deference. This electoral process will be
superficially democratic but if deference (especially to the factions
in the EP which have voted for the President) is the consequence
of the change, the Commission will lose independence, the essential
balance in the legislative machinery will be fundamentally disturbed,
and the public interest will suffer.
Are individual Member States able to influence
the initiation of legislation? In other words, can a Member State
set the ball rolling?
Yes to both questions. Obviously, the continuity
provided by succeeding Presidencies (in the current system) is
crucial to maintaining the progress of a policy objective nominated
by a "ball-rolling" Member State.
Often, of course, the Commission agrees with
(indeed, may have played a part in stimulating) the EU policy
objective emphasised by a Presidency and will consequently—and
openly—assist with the advance of the idea towards legislation.
Two further comments: (i) the new "semi permanent" Presidency
of the Union and the revolving Ministers' Councils' Presidencies
will clearly provide new conditions. I am sure that PhD theses
will be written (thankfully by others) on the anticipated results
of the change ... (ii) The relatively new so-called "Open
Method of Consultation" as an alternative to Commission initiative
and follow through is a shambles. An idea, ambition, "Strategy"
(like the 2000 Lisbon Strategy for employment, competitiveness
and sustainability) that is subject to the "Open Method of
Consultation" might have great worth and attract enthusiasts.
But it won't have any owners, nobody will have explicit responsibility
for development and fruition and successive Presidencies simply
add hazy "Policy Objectives". A worthwhile initiative
then ends us as an over-decorated but disappointing political
Christmas tree.
Does the work programme drawn up by each Presidency
for its term of office influence the setting of the legislative
agenda?
It can—see above—as long as continuity
and propulsion is provided by successive Presidencies. Presidencies
inherit a rolling process and inserting a truly fresh idea into
that process is, by definition, done—but not frequently.
Has the position on all this changed over the
years, eg since the mid-1980s and the work to complete the Single
Market?
Definitely yes—as the evolution of the
Council, Parliament and Commission, in the last 13-20 years (see
above) shows. In addition there are identifiable political reasons
for the change—the most important ones being (i) very substantial
enlargement after 1995 (ii) the presence—and then absence—of
Delors, Kohl and Mitterand. In their time there was a complicit
symbiosis between the Commission and the European Council. The
Council, driven as a Franco-German tandem, would ask the Commission
to do things that the Commission had (more subtly) suggested to
the Council that it could and should do ... The close alliance
between Delors, Kohl and Mitterand (and the voluntary occupation
of the sidelines on many issues by Mrs Thatcher) meant that such
complicity was possible and—often—productive. No existing
or likely future set of relationships has any resemblance to those
associations. In any case, the Union is an older, bigger, more
complex, more disparate place and it hasn't a leadership "cadre"
that has the motivation or the ambition of Delors, Kohl and Mitterand.
Theirs was not a Golden Era (despite the claims of nostalgic sentimentalists)
but it was a different era.
The Treaties give the Commission a virtual monopoly
in the initiation of legislation, at least in the First Pillar.
Do you think this has been a good thing? Is there a problem with
legitimacy or accountability?
Yes, the right of initiative is certainly a
good thing for Europe because no other body or actor can (or should)
fulfil the essential roles (in this unequalled international Community
of Law) of "honest broker", guardian of the Community
interest, and source of sustained attention to policy and of coherence
in its development and application. It should be recognised, of
course, (but it often isn't) that the Commission only has the
"virtual monopoly of initiative" up to the moment that
a legislative proposal is tabled. Thereafter, through the co-decision
procedure, accountability is very much in evidence and that is
always a major component of legitimacy.
Apart from that, I would emphasise (as I have
on several occasions inside and outside the Commission) that the
legitimacy of the Commission substantially depends upon its efficiciency
in working (with specific significance for good management), the
relevance of its proposals, the prudence of its conduct and of
the financial and economic implications of its proposals, the
utility of its activity for the peoples of the Union, and (as
implied above) the accountability which it guarantees to Council
and Parliament and, through both, to the Member States and their
citizens. The European Commission is a policy proposing executive
with legal powers given by the Member States. It is not a Parliament
or an elected Board. It must, therefore, manifest legitimacy in
what it does and how it performs.
30 April 2008
Summary of pp 4 & 5 of 1998 Commission
Report to the Council (Com 98715.pdf)
ORIGIN OF
COMMISSION PROPOSALS
(LEG. AND
NON-LEG.)
1.International agreements—either enacting
arrangements between the Community and third countries or enacting
the Community's international commitments for implementation within
the Union.
c 35% of Commission proposals from these sources.
2.Amendment of existing Community law to update/take
account of new scientific or economic innovations and/or data.
c 25% to 30% of Commission proposals from these
sources.
3.(i) Proposals for legislation presented by
the Commission at the express request of other Community Institutions
(especially Council and Parliament), the Member States (individually
or collectively), and economic operators (often science and technology
based).
(ii) Responses to requests to take new initiatives
which come from Parliament or Council, especially when the request
has been supported in the course of legislative process by a large
majority in Parliament and/or by unanimous or near unanimous opinions
from Member States.
(iii) Responses to Council requests for new
studies or initiatives (about 25 a year on average).
Roughly 20% of Commission proposals from these
sources.
4.(i) Proposals for legislation from Commission
that are required by the Treaty and secondary legislation (eg
fixing agricultural prices or support annually, adopting multinational
research funding programmes).
(ii) Initiatives which the Commission considers
to be in the interest of the Union and follow Green and White
Papers and other consultation. Examples include proposals for
legislation on intellectual property, electronic commerce, harmonising
technology at rail border crossings.
About 10% of Commission proposals from these
sources.
30 April 2008
| 
