4 Colum. J. Eur. L. 499 (1998)
Michelle Egan. Assistant professor at the School of International Service, American University in Washington D.C.
Dieter Wolf. Research Fellow, Center for European Law and Politics in Bremen, Germany.
INTRODUCTION: GOVERNANCE, REGULATION AND CONTROL
In his work on European policymaking, Giandomenico Majone identifies problems in controlling bureaucratic discretion and enforcing greater political accountability in the regulatory process. The debate about the political control of policymaking finds its intellectual antecedents in several stands of American political thought. The basic elements can be traced to the Madisorman theory of representation, which involves a balancing of conflicting issues, such as responsiveness versus deliberation, majority rule versus unanimity, and representation of individuals versus representation of interests. Balancing these competing criteria requires an institutional design and organizational structure to safeguard against the “tyranny of the majority.”
For Majone, non-majoritarian institutions such as courts and independent regulatory agencies provide an important safeguard against national and sectoral “factionalism.” Such regulatory structures can better avoid the swings of public opinion, and can insulate against factional influences. This structure has the added advantage of being easy to set up, as elected officials inevitably delegate considerable policymaking authority to European bureaucrats, due to the need for the expertise and information that the European Commission can provide. The usurpation of power by bureaucratic agencies is, however, increasingly viewed as problematic, as the agencies seem to be gaining power at the expense of the political branches of government and the courts. The independent agencies’ lack of responsiveness to executive leadership was initially accepted as a necessary means of ensuring reasoned and autonomous decision making. This acceptance is, however, subject to vigorous challenge, as studies in history, law, political science and economics advance alternative models of regulatory behavior. For Majone, Shapiro, Lowi and others, this trend of delegating regulatory functions to independent institutions raises problems in determining to whom the independent regulatory agencies are accountable. Furthermore, the embrace of legislative, judicial and executive roles within a single institution- the regulatory agency-raises theoretical and practical debates about due process, reform and legitimacy issues that are receiving increased attention in studies of European integration. As a result, there has been an extraordinary wave of reform aimed at increasing bureaucratic accountability at various levels of government The primary problems facing all these reform initiatives are: (i) How can accountability best be achieved in Europe? and (ii) How are demands for accountability reconciled with demands for expertise in the European policy process?
It is, however, a matter of on-going debate whether the institutional location of the regulatory function makes a great deal of difference, whether regulation involves expertise, and whether regulation ought to be insulated from political control by elected representatives.’ Majone’s prescription is that many mechanisms in place in the American context can be applied to Europe. In designing their own policies, regulators are likely to experiment with the policy ideas of other regulatory systems if these systems face similar policy questions.9 This borrowing may occur across policy sectors within the same political system or across political systems. Thus, Majone argues that efforts by the United States to balance independence and accountability through increased public participation and administrative transparency is a step in the right direction, and may serve as a model to emulate, given the salience of the debate over the democratic deficit in Europe.
In some respects, the European Commission plays a similar role to that of a national bureaucracy. The need to enact more detailed and specialized law has led to increased authority for the Commission to formulate administrative and technical rules. This grant of regulatory policymaking power is not unconditional, as Member States have looked for means to prevent the “supranational bureaucracy” from overstepping its boundaries by creating comitology procedures to assist and oversee the decisions and actions of the Commission. Building on the work of Majone and others, this paper seeks to explore the EC’s regulatory experience from the vantage point of three influential theoretical approaches. In particular, we examine the “comitology” procedures from the perspectives of (i) the public interest approach, (ii) the interest group approach(es), and (iii) the administrative or rational choice approach(es). In so doing, we shed light on the “comitology” procedures of Council oversight as a mechanism of controlling bureaucratic discretion. The application of regulatory theories to comitology illustrate that comitology is not very different from other forms of regulatory oversight.