The comitology procedures focus too much on institutional balance, and not enough on deliberation. Discuss.

        We see that the majority of delegated legislative power lies within the Commission and the Council.  The European Parliament only has equal rights under the regulatory procedure with scrutiny, even then, the objection must be fully justified under Article5a (3)(b) on three grounds; that it exceeds the implementing powers provided in the basic instrument, is not compatible with the aim or the content of the basic instrument or that it does not respect general principles of subsidiary or proportionality.  It is no wonder why many have criticised the democratic legitimacy and the institutional balance of powers in regards to the delegated legislation process. With this in mind, I will now examine the reforms of the Comitology process and examine their main focus.

Reform of the comitology decision

        Given the “continuing problem of the involvement of the European Parliament”, reforms were introduced.  As I have mentioned above, the first Comitology Decision was set in 1987 which laid down the rules and principles governing delegated legislation.  It establishes seven procedures and the European Parliament were completely excluded.  The number of procedures were reduced to three (advisory, management and regulatory) under the 1999 Decision.  This decision gives greater power to the European Parliament in response to the Treaty of Maastricht, which had established the Parliament as a co-legislator.  The Parliament was to be informed of committee proceedings on a regular basis and of referrals made to the Council.  If the Parliament believed that the Commission draft was ultra vires, the Commission may, but is not obliged to, re-examine the proposal.   As well as this, the new 1999 comitology decision made the committees more transparent by granting public access “to the documents and discussions of the committees…and…establish(ing) a register of any draft measures placed before the committees and of the agendas and voting records of the committee”.  Although the Parliament was given more powers, on paper, it was still considered to be insufficient.  There was no provision for general consultation and it had no veto powers.  

        The 2006 comitology decision introduces the new regulatory procedure with scrutiny.  Schusterschitz and Kotz argue that there is a “substantial shift in the relations between the institutions” in relation to law-making, which is “a major step forward for Parliament”.  We see that the reforms, especially the 2006 decision, focus mainly on the inclusion of the European Parliament in decision-making.  It was a response to the continuing dissatisfaction of the little role the Parliament, the only directly elected body, played.  It was argued that the inclusion of the Parliament under the 2006 decision “increases the democratic legitimacy of ‘quasi legislative’ measures and thus contributes to a better acceptance of European legislation by citizens”.  This leads onto the question of whether the comitology procedures do not focus enough on deliberation.  

Too little on deliberation?

        The concept of deliberative democracy was most notably used by J. Habermas who argued that people only accept laws in democracies because they have had an active role in the debates which led to the adoption of laws.  It is, therefore, the process of deliberation that “enables strangers to come together to decide matters of common interest as free and equals”.  It is worth noting that it is difficult to come to a conclusion of what qualifies as enough deliberation.  Nonetheless, there are several ways which would indicate a deliberative democracy.  These include the “assessment of transparency, openness” and whether the structure promotes “a communicative, co-operative mode of problem-solving”.

        I have already pointed out that the level of transparency has been improved from the 1999 Decision which had created public access to records of the committees.  However, there is still question as to the level of public participation within these decision-making.  Many remain unaware of the committee structure and are only aware of certain tragic incidents from the media.  Hence, although the transparency of the committees have improved, it is difficult to determine whether this has a direct impact which leads to greater public understanding. C. Joerges highlight the need for legislators to “maintain open-mindedness and willingness to be convinced by others’ analyses of the merits” within the decision-making process which would constitute it being a deliberative one.  Hence, if the comitology procedures do focus on being a deliberative one, it can be assumed that the committee members are not biased in favour of their national identity.  However, as J. Weiler highlights, it is not possible to eliminate political bias, but what should be more important is transparency and the process of counter-arguments based on different competing biases.  However, as Joerges research findings show, many decision-makers “frequently enter committee discussions without clear preferences, or are prepared to change their positions”.  This reflects onto the deliberative aspect of the process, whereby many are willing to be convinced by others.  We can see that the not much effort has been made to enhance deliberation especially within the Comitology reforms.  There is a guaranteed system of check within other institutions which indicates a deliberative democracy as a result of the procedures. However, the process lacks public input and communication.

Conclusion

        In this essay, I have examined the comitology structure and reforms.  It is obvious that the reforms focus mostly on institutional balance, especially in giving the European Parliament greater powers in response to new Treaties which places the Parliament as a co-legislator and increased criticism of democratic legitimacy.  Although “much energy has been wasted on weightly institutional controversies”, some effort has also been made to make the comitology procedure more transparent.  This is in the 1999 Decision which granted public access to committee records.  However, as I have argued, it is difficult to see how this would lead to greater public involvement, which is what Habermas argued to be needed in a true democracy.  I believe that the reforms were correct in focusing mainly on the balance of institutional powers, as the European Parliament is the only directly elected body.  Although deliberation within the decision-making process is extremely important, I do not think that it has to reach the level of public involvement as Habermas has described.  This is simply because of the impracticality having all Europeans having a say in the decision-making process.  What I believe is more important to is the need to expand the powers of the European Parliament.  The public will be represented by them voting for members of the Parliament.  I also believe that there is a need for greater transparency and greater public knowledge of the decision-making process.  In conclusion, I believe that the comitology procedures focus on institutional balance in order to achieve the greater aim of deliberation.  

---