EU Law-Making: Blame the State

Opposition towards the European Union has long been a standard amongst the nationalistic segments of European societies. It is among the less educated and poor that we find the notion of an evil empire imposing incompetent regulations under pretence of beneficence for citizens, but with disconnection and close-mindedness that ultimately relegates these rules as a laughing matter at best and an outrage at worst. It wasn’t long ago that the EU promulgated rules on the proper curvature of bananas, leading to the depiction of Eurocrats as pointless and self-absorbed blithering baboons. But the issue, I claim, lies not with the EU – it lies with the nation state.

Image courtesy of The European Union © 2013, some rights reserved
Image courtesy of The European Union © 2013, some rights reserved

Very simply, the EU legislation process emerges out of the following: the Commission proposes legislation (either on the request of the European Parliament and/or the Council, or by its own initiative), the European Council alters this legislation in discussion with the Commission (often substantially curtailing its reach), and finally the European Parliament reworks the legislation once more, handing it back to the Council and Commission with its own set of demands. The Council then discusses these, allows for some and disallows for others, and grants a mandate to the Presidency of the Council to negotiate on the agreed concessions in a trialogue meeting between the Council, Commission and Parliament. If no agreement is reached, the Presidency briefs the remaining Council member states on the outcome, and requests a revised mandate for compromise with the Parliament.

Let us now investigate this process by view of the State. The proposed directive is first received by the Council on the level of the Working Groups. These consist of delegations of “experts” from each country of the EU, usually direct extensions/representatives of national ministries posted at their respective Permanent Representations to the EU. The experts are in constant contact with their national bureaucracies as they have little to no decision-making powers on the ground. Daily, instructions flow in a triangle between national ministries, governments and the experts, drafting and redrafting positions to be had towards issues as menial as the insertion of a comma in article 2 point 3a. These are essentially to be read out by the experts, who in turn record the reactions of others. Once this technical stage is over and a certain degree of agreement is secured, the directive receives another bashing on a higher level of the hierarchy – the semi-political stage of the COREPER (the forum of Permanent Representatives). This is where issues that could not have been resolved at the Working Group level will be addressed, and where much of the slicing and dicing will take place. This, in short, is where Britain will make its obstructions if it has not done so already, where Germany attempts to dominate the debate, and where France revels in the opportunity to remind everyone that French is a beautiful language.

What should already be visible from the process above is that the legislation package, even as it leaves the Council, no longer exists as the coherent deal drafted by the Commission. Sliced, quartered, bent, and stitched back together, with pieces missing and pieces added, the directive becomes an amalgamation of interests far removed from “Brussels”. The state has interests, sub-state actors have interests, and the citizenry as a whole has some interests (although these are usually last to play a role in international politics; on the contrary, they are more often the driving force behind the Commission´s proposal). But what a mess it becomes when the Parliament joins in as essentially a “third state” battling for interests of its own!

The following examines the process from the view of the Parliament. The EP is the only democratically elected institution in the EU, and as such exhibits all the failings and shortcomings of democracy as observed at the national level (for example the interests of representatives in re-election, or the voting power of the uneducated and easily manipulated masses, etc). Moreover being fundamentally a “state assembly without a state”, the EP appears detached from the same scrutiny accorded to assemblies in nation states. Lack of accountability – something rather unexpected in a democratic institution – therefore seems to be an issue. So how does this tie in with the legislative process? The EP also receives the joint Commission and Council proposal at the level of a working group. It then goes through several stages, but ultimately, the EP is likely to produce amendments that a) serve to strengthen the role of the EP in the bureaucratic tug of war within the EU institutions, b) represent the interests of lobbyist groups associated with individual MEPs, or c) represent the interests of the voters. Now while c) is perfectly in line with the proclaimed raison d’être of the EP (i.e. democratic governance), the final piece of the jigsaw I am trying to build falls into place with the following observation: bad legislation promotes anti-EU sentiments, which in turn result in increased success of anti-EU MEPs in EP elections.

The extreme multiplicity of actors and interests in the legislative process effectively mean that directives produced by this system will only superficially resemble the drafts of the legislation as intended by the Commission. Moreover, the fragmentation of the cohesiveness of the legislation may lead to directives that are laughable at best and outrageous at worst. Finally, the downward spiral completes its circle when bad legislation increases the number of anti-EU MEPs, that subsequently use their position to obstruct (and in effect empty-out) any following legislative proposals.

In conclusion, I ask the kind reader that has borne with me this far, to imagine the EU disposed of the Council and the Parliament (i.e. the level of organization where the State comes in). A single centre of gravity would mean better accountability as the focus of scrutiny fixed on one institution only, ensure the coherence of (better) legislation, and ultimately improve the image of the EU in the eyes of Europeans. Whilst I do not advocate such extreme moves, I encourage every anti-EU nationalist to re-examine the source of the bad legislation imposed on member states – I firmly believe that they will likely find themselves and their respective national governments and MEPs to be the culprit, instead of “Brussels”.

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