Regulatory Decisionmaking in the European Commission

1 Colum. J. Eur. L. 415 (1995)

George A. Bermann. Charles Keller Beekman Professor of Law, Columbia University School of Law, New York, New York.

As an institution variously described as the “motor”‘ or “engine” of European integration and as the European Union’s “executive branch,”‘ the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States.” The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. The first is the question of the respective decisional roles of the European Union’s three main political institutions – Council, Commission and Parliament” – and of their relationship to the Community courts. The second preoccupation relates to the fact that those institutions have three quite distinct legislative procedures for the enactment of Community law, namely the parliamentary consultation, parliamentary cooperation and parliamentary co-decision procedures. Finally, within each of these procedures, attention is invariably drawn to the different voting formulas in the Council (simple majority voting, qualified majority voting, or unanimity) and to the relative difficulties of obtaining the requisite Council majorities, especially with further EU enlargements.

The traditional interest of US scholars in the “inter-institutional” and voting aspects of the Community’s legislative procedure is fairly easy to explain. First, judging by the agendas of recent and projected intergovernmental conferences,’ the issues are topical and preoccupy the Europeans themselves. Second, the issues clearly have important implications for the balance of power, not only among the Member States and among the institutions, but also between the Member States and the institutions; this will explain why the Court of Justice has recently seen so much litigation over the “correct legal basis” of legislative enactments. Finally, the newer legislative processes have to them a sheer complexity, certainly as compared with the basically unitary character of the legislative process at both at the state and federal levels in the US; that complexity itself naturally invites attention.

Mastering the intricacies of the Community’s legislative processes and their political implications is difficult, but also in a sense illusory – much like focusing on the mechanics of how a bill becomes a law in the United States. Although the Council, the Commission and the Parliament perform characteristic functions in the enactment of Community legislation,” each of these institutions has its own complex internal processes for determining the positions that it will take within the relevant legislative mechanisms. The internal aspects of decisionmaking by the European Commission constitute the focus of this article.

Part I explains this article’s focus on the Commission among the various institutions of the European Union, and  more particularly on the Commission’s role as chief legislative proponent. When the Commission formulates regulatory policy, even if only in the form of legislative proposals, it performs functions most closely analogous to the rulemaking activity entrusted to administrative agencies in the United States. In Part II, I trace in some institutional detail the Commission’s actual procedures for formulating such proposals for adoption by the Council. As this part of the article seeks to show, the rulemaking activities of the Commission are ones in which the contribution of the “services,” that is the permanent staff below the Commissioner level, is particularly vital. In Part III, by way of conclusion, I seek to identify, in explicit comparison with certain aspects of US administrative agencies, some of the general institutional features of the Commission that seem to have most basically influenced its performance of the legislative proposal function.

This article seeks, in short, to address the need for a better grasp of the Commission as counterpart to the regulatory agencies of the United States. Although a comparison between EU and US rulemaking is bound to enhance understanding of the administrative process generally, the search for activity within the Community paralleling the regulatory development activity of US agencies is by no means a purely academic exercise. As US regulators increasingly explore the benefits of bilateral regulatory cooperation with overseas governments,” they need to know where within those governments such activity takes place and to understand the procedure by which it is conducted. Parties who seek to influence Commission policymaking have a similar need.”