Has the power of the European Commission declined since the 1990s?
“Useless”, mute, invisible… the general press has been very harsh lately in describing the role — or non role — played by the European Commission in the attempt to solve the sovereign debt crisis. Brussels-based journalists, who are often more favourable to integration than their colleagues remained in national newsrooms, can hardly refrain from drawing the comparison with the Delors Commission and recalling the “good old days” under the leadership of the “Tsar of Europe”, twice president of the Commission (1985-1995) Jacques Delors.
Yet while journalistic comments can be content with personal factors in explaining differences of conduct between the current Commission and its early predecessor, the political scientist's work consists in enquiring about more structural changes that may have affected the position of an institution relative to another. Any observation about power cannot indeed do without considering also the evolution of the other players' positions in the game — mainly decision-making in our case — since power is exerted on external objects and its strength therefore depends on their respective capacities of resistance.
This preliminary statement is not to be neglected because a purely legal-institutional analysis centered on the Commission would not find much evidence for a decline in its power. Formally the competences of the Commission have never been deeply altered since the Treaties of Rome (1957): it still enjoys a monopoly of legislative initiative in most policy areas, can bring a Member State or an EU institution before the Court of Justice in case of infringement of EU law and is in charge of a part of the executive power through the adoption of implementing acts.
By consequence, if there is an effective decline of the Commission's power since the 1990s, causes of this phenomenon are likely to be found either in the successive reforms involving the two other vertexes of the institutional triangle — in particular the European Parliament which seems to be the most dynamic element over time in terms of competences —, either out of the Treaties. This can for instance be connected with the institution's image among the general public but also with its internal way of functioning. More specifically, the first sets the political boundaries beyond which action stops to be perceived as legitimate — and they do not always coincide with legal limitations — whereas the latter has an impact on the technical capacity to exercise competences conferred by the Treaties.
We shall argue in this paper that empirical experience of the decline of the Commission's power since the 1990s is well-founded and that it is not just due to the appointment after Jacques Delors of less charismatic or voluntarist personalities. In fact, we shall show that decline has started even before 1995 for at least two reasons. First, the window of opportunity opened by the end of the Cold War and the prospect of German reunification was unique of its kind and certainly had a decisive influence on the Commission's successes of the time — notably the Economic and Monetary Union (EMU) and coordination of international assistance programmes to Eastern Europe. Secondly, referenda results in Denmark and France on the Maastricht Treaty dispelled the idea of “permissive consensus” in public opinions around European integration and shook by the same token the legitimacy of EU institutions. The Commission was especially under fire for its allegedly technocratic character and for example, the ambitious White Paper on “Growth, competitiveness, and employment” of 1993 was soon buried despite propositions of social nature that would have completed the more business-oriented Single Market Initiative.
We shall divide our development into three parts. The first deals with the EU's decision-making process, since the introduction of codecision moved the barycenter of the institutional triangle closer to the Parliament-Council axis at the expense of the Commission. The second is about the multiplication of alternatives to the traditional Community method where the Commission is the most powerful. The third and final is focused on internal changes that have contributed, alongside with the two other trends, to bureaucratize the Commission and transform it from an “administration de mission” into an “administration de gestion”.
I – Codecision, or how to empower the Commission's partners
Until the late 1980s, decision-making in the EEC/EC was mainly the matter of the Council and the Commission. The Parliament's weight, although on the rise due to new powers in the budgetary procedure and the introduction of universal suffrage for electing MEPs, was still quite limited and it is only with the first Treaty revision since 1957 — the Single European Act — that the EP acquired some law-making competences.
Interestingly, its early weakness can be shown through the fact that it even had no standing of its own before the Court of Justice and had to rely on the Commission's willingness to defend its prerogatives. After the ruling Parliament v. Council and consecutive Treaty amendments, the EP was granted a new status and then became able to protect its rights but also to challenge the validity of any EU act in front of the Court of Luxembourg. This evolution implicitly means that the Commission was no longer considered as the sole “guardian of the Treaties”.
The creation of the codecision procedure, now called the ordinary legislative procedure, is another sign of this trend. It acknowledged that between the “general interest of the Union” and the interests of Member States, a third distinctive voice was legitimate to be taken into account: representatives of European peoples. Under this procedure, the Parliament has become a real co-legislator, on the same footing as the Council, while the Commission's competences remain formally intact.
However, in practice, the development of codecision has led to a more direct dialogue between the EP and the Council which in effect can exclude the Commission either at an early stage, when the Parliament and the Council are disposed to adopt the piece of legislation at the end of the first lecture, or during the conciliation committee phase. In the latter case, the Commission even loses any possibility to withdraw its proposal or to submit unwanted EP amendments to unanimity voting in the Council.
Though this tendency does not weaken the Commission's power to shape the frame of the debate because it retains the monopoly of initiative, it cannot be sure that the final piece of legislation will respect the spirit of its proposal. In other words, under codecision, the Commission plays more the role of a “bureaucracy” or a secretariat — albeit very sophisticated — than of a policy maker capable of imposing its priorities on the agenda. The finding is further confirmed by the decreasing proportion of proposals which originally emanate from the Commission in comparison with proposals resulting from the implementation of international agreements or expressly asked by the other institutions. It seems therefore that political initiative has deserted the Commission's hands, a shift exacerbated by an apparent disaffection for the Community method.
II – Alternatives to the Community method, or how to sideline the Commission
Opposition between intergovernmentalism and supranationalism has been an essential line of division among academics as well as among political actors at least since the immediate post-war, when Europeans and Americans were trying to conceive institutional schemes that would ban forever the spectre of a new deadly conflict on the Old Continent — at least in the West. If each “method” should be rather considered as an ideal-type than as an accurate representation of the reality at a given time, the resounding “discours de la méthode” — which could not but recall Cartesian rationalism — delivered last year by the German Chancellor Angela Merkel in Bruges seems to carry the idea that this distinction is no longer relevant. In a very Hegelian exercise of synthesis, she proposes instead a so-called “méthode de l'Union” where actions are to be coordinated at the EU level but their choice and implementation are to be left to Member States.
This is in fact hardly different from the “open method of coordination” developed throughout the 1990s and formalized at the European Council of Lisbon in 2000. Within this framework, the EU's role is limited to setting non-binding objectives and facilitating exchange of best practices between Member States. Theoretical effectiveness of the system relies on two ideas. First, national governments are under peer pressure to fulfill their commitments and be the “best pupil in class”. Second, they are scrutinized by their domestic voters who acquire knowledge about foreign examples and therefore push for reforms if they think their country is lagging behind. The legal constraint, materialized by the tandem Commission-Court of Justice, is absent together from the mechanism.
The introduction of the open method of coordination is to be put in the perspective of the growing importance of the European Council, notably after the entry into force of the Lisbon Treaty and the creation of a stable presidency. One can see in the successive summit conclusions that the European Council has had the tendency to go beyond the formulation of strategic orientations and general political guidelines and to deal with more detailed issues which were previously left to the Commission. The European Council is also developing expertise of its own — a field where the Commission has normally the greatest resources —, as shown by its decision in March 2010 to entrust Herman Van Rompuy the direction of a task force on the future EU's economic governance.
The erosion of the Commission's monopoly over legislative initiative can be understood as an additional sign of the relative marginalization of the Community method. While it is true its range has not been modified in absolute terms, the most dynamic EU policy areas — Justice and Home Affairs on the one hand, Common Foreign and Security Policy (CFSP) on the other — escape the general rule, even if several parts of the ex-third pillar have been in the meantime transferred to the ex-Community. As for CFSP, the double-hatted character of the High Representative and her own initiative power, combined with the creation of a European External Action Service (EEAS) drawing from both the Council Secretariat and the Commission services, make unclear whether the Commission will not lose influence on the management of certain policies like development aid.
Finally, a less documented aspect of the Commission's declining power is the multiplication of independent agencies, whose technical attributions can sometimes hide very sensitive decisions from a political point of view such as the European Food Safety Authority's opinions upon GMO products or FRONTEX-coordinated operations of border management. At this stage, one may indeed question the usefulness and the future of the European Commission, dismantled from above with the European Council and at the same time from below with independent agencies. If both political initiative and important regulatory power cease to count among the Commission's functions, can this institution be something more than a mere empty shell ? Recent reforms of its personnel bring a rather gloom answer to this question.
III – Administrative reform, or how to devitalize the Commission
Praised for his leadership in the completion of the Single Market, the creation of the Economic and Monetary Union and the institutionalization of the EU's political dimension, Jacques Delors has nevertheless been criticized for having centralized power in an excessive manner and for having neglected the “house”. He is also said to have “killed the job” because he may have gone too far in pushing for more integration and thus gave less euroenthusiastic Member States a pretext to cut the Commission's wings and appoint a more docile president.
Jacques Santer better matched this profile than Jean-Luc Dehaene and was therefore chosen, despite weak support in the EP. His programme reflected the new dominating tune in the air of the time: “less but better legislation” and internal reforms. Focus on management issues was not only a way to deflect the Commission's attention from other policy areas but met as well the demands of two new Member States which are very sensitive to “good administration” and transparency: Finland and Sweden. It is not by chance then that the portfolio of Budget, Personnel and Administration was given to the Finnish Commissioner Erkki Liikanen while his Swedish colleague Anita Gradin became responsible inter alia for Financial Control and Anti-fraud.
Their first common attempt to introduce new public management-inspired reforms, as early as 1995, met however fierce opposition from the Commission civil service, whose administrative culture was mainly influenced by continental, Weberian-style traditions. New measures such as management by objectives or more frequent personnel rotation could not in consequence be implemented as they were intended to and were left under the carpet for a while. The political stream was simply missing.
Yet an unexpected scandal that burst out in 1999 created a new window of opportunity to impose a reform of the Commission's administration. Allegations of financial mismanagement led the Parliament to propose a motion of censure against the Santer Commission which decided instead to resign en masse. Despite the fact internal procedures of control were not found afterwards particularly lenient, the successor at the head of the institution, the highly respected Professore Romano Prodi, was under strong political pressure to take measures in order to clean the Commission's tarnished reputation.
Details on the actual content of the so-called Kinnock reforms — named after the British Vice-President of the Commission in charge of Administrative reform — would go beyond the scope of this paper and will therefore not be mentioned here — the interested reader is invited to look at the bibliography to find specialized articles on the topic. Suffice it to say in relation with the main subject of this essay that the Kinnock reforms were largely drafted on the basis of what had been attempted four years before by the two Scandinavian Commissioners.
Ex post studies conducted in the form of interviews or polls tend to indicate that these reforms have had a major impact on the Commission's middle management, represented by heads of unit (HoU). These civil servants held a particular position in the Commission hierarchy because they had enough responsibilities to be fairly influential but remained at the same time close enough to their dossiers to be considered as reliable experts. In a sense, they almost played the role of a “rapporteur” of legislative proposals, even though drafts must always be in the end politically and legally endorsed by the College of Commissioners.
While heads of unit still exist as such, their function has been transformed so that they spend now most of their time on management tasks, e.g. management of human resources or evaluation. The toughening of control procedures also increased the volume of paperwork to be done by civil servants at the expense of concrete content. By the same token, it has installed a “culture of fear” among them that paralyses any initiative because “everybody is afraid of taking risks”. Last but not least, accelerated rotation of the personnel has weakened civil servants' technical expertise since they are often moved from a policy area to another, with few time left to develop an acute knowledge of the dossiers.
Conclusion: has the Commission been turned into a super-secretariat ?
One cannot be but struck by the convergence of these three trends, as if they were all parts of a “master plan” to turn the European Commission into a sophisticated but toothless secretariat. Yet no evidence of such a coherent move has been so far found and despite the professed intention of some Member States to resist “creeping competence” from Brussels, political scientists should be careful not to inject more rationality in their analyses than the reality actually contains. Marginalization of the Commission after the introduction of codecision may not have been a consequence imagined beforehand, nor have the effects of the Kinnock reforms.
Yet looking at results rather than at intentions, one could hardly deny that the power of the Commission has indeed declined since the 1990s. Moreover, this phenomenon is not, as it has been shown, due to mere conjunctural or personal factors but to structural changes, both in the Commission's environment and inside. The point is important because it makes a reversal of the trend less likely, at least in the near future. After all, the greater role of the EP is not an evil per se, and administrative reform had as well legitimate motives.
The central question however is whether the “bureaucratization” of the Commission is a positive sign of maturity of the European Union — the project would be now sufficiently firmly established to work without political activism of its administrative organs — or whether it preludes a fading away of the Union itself. If some may argue that in the past, the Communities have managed to progress even with a relatively weak Commission — from Walter Hallstein's “departure” to the appointment of Jacques Delors —, it is not sure whether the EU could find today alternative and effective engines of integration such as the Court of Justice, whose judicial activism has also been curtailed at least since the 2004 enlargement. From this point of view, the current sovereign debt crisis is a decisive test.
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