N. Nugent

The Government and Politics of the European Union2010

Chapter 8The Commission

The Commissioners• One Commissioner per m-s including the President and

the High Representative.• Five year term which may be renewed. • Each Commissioner nominated by his/her member

state, but must be acceptable to the President-designate.

• The College as a whole must be approved by the EP after individual “hearings”.

• Commissioners must be independent and not act as national “representatives”.

• Each Commissioner has a portfolio.

Impartiality and independence• Commissioners are not national representatives.• COM “shall promote general interest of the Union” and

Commissioners “shall be chosen on the ground of general competence and European commitment from persons whose independence is beyond doubt” (Art.17, TEU).

• Commissioners should “neither seek nor take instructions from any Government or other institution, body, office or entity” (ibid.).

• In practice, full impartiality is neither achievable nor attempted since all but the President and the High Representative are national nominees.

• The requirements of the system and necessities of the EU’s institutional make-up are such that real problems arise if Commissioners try to push their own states’ interests too hard. – It is both legitimate and helpful to bring favored national interests

onto the agenda, but to go further and act consistently and blatantly as national spokesman, or even to be seen as being over-chauvinistic is to risk losing credibility with other Commissioners and it also makes it difficult for the Commission to function properly.

The President• is the most prominent and usually the best known of the

Commissioners.• is the principal representative of the Commission in its

dealings with other EU institutions and with outside bodies.• is generally expected to give a sense of direction to his

fellow Commissioners, and more broadly, to the Commission as a whole.

• allocates Commissioners portfolios.• May require fellow Commissioners to resign.• Is directly responsible for overseeing some of the

Commission’s most important administrative services.• May take on specific policy responsibilities of his own,

usually in harness with other Commissioners.

Portfolios• All Commissioners have portfolios: that is, particular areas of

responsibility.

• Some portfolios, such as Budget, Competition and Environment are more or less fixed but others, especially those of a broader and less specific nature can be varied, or even created.

• Prior to implementation of Amsterdam Treaty, the distribution of portfolios was largely a matter of negotiation and political balance. – This situation meant that Commissioners were not necessarily assigned

to the most appropriate posts, and also that not much could be done if a Commissioner was not performing satisfactorily.

• The situation was partly addressed in a declaration attached to the Amsterdam Treaty and has since been strengthened, with the situation now being that, apart from in respect of the special portfolio of High Representative, “the responsibilities incumbent on the commission shall be structured and allocated among its members by its President”.

Cabinets• To assist them, Commissioners have personal cabinets. • Cabinets: small teams of officials numbering six officials plus support staff,

except for the President’s cabinet which have twelve officials.• Members of cabinets used to be fellow nationals of the Commissioners but,

after Prodi, new rules were introduced requiring that each cabinet should include at least three nationalities and indicating that the chef de cabinet or the deputy chef de cabinet should preferably be of a different nationality to the Commissioner.

• Typically, a cabinet member is a hard-working 30-35-year-old, who has been seconded or recruited from some part of the EU administration, from the civil service of a member state, or from a political party or a sectional interest with which the Commissioner has links.

• Cabinets undertake a number of tasks: – they gather information and seek to keep their Commissioner informed of

developments within and outside his/her allocated policy area; – they liaise with other parts of the Commission, including other cabinets, for

purposes such as clearing up routine matters, building support for their Commissioner’s policy priorities and generally trying to shape policy proposals as they come up the Commission system;

– and they act as a sort of unofficial advocate/protector in the Commission of the interests of their Commissioner’s country.

Directorates General (DGs)

• The Commission’s staff is organised in departments, known as ‘Directorates-General’ (DGs) and ‘services’ (such as the Legal Service).

• Each DG is responsible for a particular policy area and is headed by a Director-General who is answerable to one of the commissioners

The hierarchical structure of the Commission

• All important matters are channeled through the weekly meeting of the College of Commissioners.

• At these meetings decisions are almost invariably taken by consensus, but majority voting is possible.

• In particular policy areas the Commissioner holding the portfolio in question carries the main leadership responsibility.

• DGs are formally headed by Directors General, who are responsible to the appropriate Commissioner.

• Directorates are headed by Directors, who report to the Director General or, in the case of large DGs, to a Deputy Director General.

• Units are headed by Heads of Unit, who report to the Director responsible.

Development of a proposal• An initial draft is drawn up at middle-ranking policy grade level in

the “lead” DG. • Liaison with other DGs that have an “interest” is conducted by

various means, including the convening of inter-service groups.• Outside assistance (consultants, academics, national officials,

experts, sectional interests) is sought, and if necessary contracted. • Parameters of the draft are likely to be determined by a

combination of existing EU policy commitments, the Commission’s annual work programme, and guidelines that have been laid own at senior Commission and/or Council levels.

• Progress is “monitored” by the Secretariat General, which needs to be assured that appropriate “tests” (including of subsidiarity an proportionality) are met and that correct procedures are used.

• The draft is passed upwards – principally through superiors within the DG, through the cabinet of the Commissioner responsible, and through the weekly meeting of the chef de cabinet – until the College of Commissioners is reached. During its passage the draft may be extensively revised.

• The College of Commissioners can do virtually what it likes with the proposal. It may accept it, reject it, refer it back to the DG fir redrafting, or defer taking a decision.

Power resources of the Commission• Its powers of initiative: exclusive and non exclusive.

• Its neutrality (which results in it being seen as less partisan and more trustworthy than most other EU actors).

• It is present in virtually all decision-making forums and at all decision-making stages (and so is very well-informed about the position of other actors and is often looked to by them for advice).

• Its access to information about EU policies and needs (an access that is assisted by it being surrounded by hundreds of expert and advisory committees).

• Smaller states often look to the Commission for leadership and protection – and most EU states are small.

Responsibilities The responsibilities of the Commission may be

grouped under six major headings:

I. Proposer and developer of policies and legislation

II.Executive functionsIII.Guardian of the legal frameworkIV.External representative and negotiatorV.Mediator and conciliatorVI.Promoter of the general interest

I. Proposer and developer of policies and legislation

Policy initiation and development• Policy initiation and development takes place at several

levels in that it ranges from sweeping “macro” policies to detailed policies for particular sectors.

• Of the many pressures and influences to which the Commission is subject, the most important are those that emanate from the European Council and the Council of Ministers.

• The Commission’s policy-initiating activities cover both major and cross-sectoral policies and policy programmes and also specific policy areas.

I. Proposer and developer of policies and legislation

Legislative initiation and development• With regard to legislative initiation and development, Commission

has the power to initiate and draft legislative proposals. • The Council and the EP can request the Commission to produce

proposals but they cannot do the initiating of drafting themselves.

• After a legislative proposal has been formally tabled the Commission still retains control , for it is difficult for the Council or the EP to amend it without the Commission’s agreement.

• As with the preparation of policy proposals, the Commission makes considerable use of outside sources. In this process an important role is played by a vast network of advisory committees that have been established over the years.

I. Proposer and developer of policies and legislation

Commision’s advisory committee networkThe committees are of two main types:• Expert Committees. These consist of national officials, experts and

specialists of various sorts.• Consultative committees. These are composed of representatives

of sectional interests and are organised and funded by the Commission without reference to national governments.

- In addition to these two types of committees there are many hybrids with mixed form of membership.

- The extent to which policy sectors are covered by advisory committees varies.

II. Executive functions• The Commission exercises wide executive

responsibilities. • That is, it is closely involved in the

management, supervision and implementation of EU policies.

• Three aspects of the Commission’s executive functions are most important:– Rule-making powers– Management of EU finance– Supervision of “front-line” policy implementation

Comitology

• A number of different procedures apply on how COM exercises executive functions.

• Many of the procedures involve use of implementing committees composed of governmental representatives.

• The implementing committee system is known as “comitology”.

• From the mid-1980s, Comitology became an increasing problem for the EU because of the sheer size and complexity of comitology structures and also because there were frequent disputes between Council and COM/EP.

Comitology (cont)• Until 2006: four main comitology procedures:

– advisory procedure: committees could only advise the Commission on implementing decisions;

– management procedure: committees could block COM decisions by QMV;

– regulatory procedure: committees had to give their approval for Commission decisions by QMV;

– (rarely used) safeguard measures: committees could use variety of consultative, confirming, amending and revoking powers.

• In 2006 a further comitology procedure was introduced: the regulatory procedure with scrutiny (RPS): – It applied to broadly based measures – which built on the existing regulatory procedure to extend the EP’s

powers – including giving it veto rights where a comitology committee had given

a positive opinion.

Comitology (cont.)• Partly so as to try and deal with these problems, the Lisbon

Treaty made a distinction between two types of administrative legislation that could be issued by the Commission.– Delegated acts would be of “general application to supplement

or amend certain non-essential elements of the legislative act”.– Implementing acts would be used where “uniform conditions

for implementing legally binding acts are needed.

• Although their main function is to deal with administrative legislation, they do also undertake other activities.

• On a broad point, committees can be seen as a means by which the m-s governments, and to a lesser extend EP, seek to ensure COM does not become too independent of them.

III. Guardian of the legal framework• In association with EU’s courts COM is charged with ensuring that

treaties and EU legislation are respected.

• The Commission may become aware of possible illegalities in one of a number of ways.– In the case of non transposition or incorrect transposition of a directive

into national law this is obvious enough, since directives normally specify a time by which the Commission should be supplied with full details of national transposition measures.

– Through self-notification. For example, states are obliged to notify COM about all national draft regulation and standards concerning technical specifications (in order to check if they create entry barriers).

– Through the many representations made by organizations, individuals, firms and member states who believe that their interests where damaged by the alleged illegal actions of another party.

– Through the Commission own efforts (e.g. investigations, careful analysis of information).

III. Guardian of the legal framework (cont.)What can the Commission do about breaches of EU legislation?

• Non compliance by a member state. The Maastricht Treaty gave the Commission power, when a member state refuses to comply with a Court judgment, to bring the state back before the Court and in so doing specifying a financial penalty that should be imposed. (GR was first state fined in 2000)

• Firms breaching EU law on restrictive practices and abuse of dominant market position. Offending parties are encouraged to fall into line or to reach an agreement with COM during the extensive informal processes. If informal processes fail, fines and required actions can result.

• Firms breaching EU rules on state aid. COM power can take form of requiring that state aid in question be repaid. However, in 95% of cases investigated, state aid applications and allegations result in the aid being authorised.

• Potential breaches of EU rules on company mergers. Information regarding proposed mergers and takeovers above certain limits has to be notified to COM. COM must decide whether it proposes either to let the deal go ahead, or to open proceedings. Any firm that supplies false information during the course of COM inquiry, or conducts a merger or takeover without gaining clearance from the COM, is liable to be fined up to 10% of its annual sales.

IV. External representative and negotiator• COM roles in respect of the EU’s external relations are essentially 6. • COM centrally involved in determining and conducting EU external trade

relations.• COM has important negotiating and managing responsibilities on various

special external agreements of EU with many countries and country groups.

• The High Representative of the Union for Foreign Affairs Security Policy and COM represent EU and participate in the work of a number of important international organizations.

• COM has responsibilities for acting as a key point of contact between the EU and non-member states.

• COM entrusted important responsibilities on applicatns for EU membership.

• Whilst essentially intergov. nature of CFSP and CSDP mean that COM role in respect of foreign and defense policies is essentially supportive and secondary to Council, it still has significant role to play in 2 respects: – First, new post of High Representative is based in the COM as well as in the

Council. – Second effectiveness of many CFSP policies are highly dependent on use of policy

instruments concerned often with trade and development aid – that are managed by COM.

Mediator and conciliator• The Commission is very much involved in trying to bring about

agreements between competing interests, and a great deal of its time is taken up looking for common ground that amounts to more than the lowest common nominator

• COM is well placed to act as mediator and conciliator: – it is normally seen as being non-partisan: its proposals may be viewed

less suspiciously than any that come from, say, the chairperson of a Council working party.

– In many instances COM is simply in the best position to judge which proposals are likely to command support both inside and outside the Council. This is because of the continuous and extensive discussions that COM has with interested parties from the earliest considerations of a policy proposal through to its enactment.

• COM effectiveness in its mediating role can be considerably influenced by the competence of its officials.

VI. Promoter of the general interest • In performing each of the above five tasks the Commission

is supposed to stand apart from sectional and national interests.

• The Commission should be the “conscience” of the Union.• • This is seen to require acting in ways that strike a balance,

and if necessary reconciles differences between different actors and interests: for example, between large and small member states, northern and southern, old and new, net contributors and net beneficiaries.

• However, this theoretical neutral role is difficult to operationalise but the COM does seek to act and mobilize in the general interest that the smaller EU states tend to see it as something of a protector.

Circumstances favourable to the exercise of Commission leadership

• when it has strong and clear powers (e.g. competition policy)

• when QMV applies in the Council (because then Commission is less subject to member state control)

• when control mechanisms are weak

• when there is uncertainty of information amongst the member states

• when there is an absence of strong conflicts in the Council and the EP

• when there is the possibility for exploiting differences between m-s

Factors explaining a relative decline in the influence of Commission

• The policy “pioneering” days are largely over.• The increasing influence of the European Council.• The increasing influence of the European Parliament.

• Loss of status: the 1999 crisis, internal College divisions, the 2004 EP “hearings”.

• It has suffered from “defeats” and failures in recent years (e.g. little influence in recent IGCs).

• The growing importance of the use of “new modes of governance”, based on flexible and non-legislative policy instruments, notably via the open method of coordination.

• Like national administrations, the Commission has been affected and infected by prevailing notions of rolling back the responsibilities of public sector organizations and of concentrating on making them more efficient in what they do, not more powerful in what they could do.

Academic debate on the influence of COM

There is an extensive academic debate regarding the extent to which the Commission exercises leadership and undertakes its various roles in an independent manner. There are two “polar” view with variations stretched out in between.

- The “intergovernmentalist” view sees COM as essentially an “agent” operating on the basis of guidelines and instructions given to it by its “principals” with governments of the member states operating collectively in the European Council and Council of Ministers being the main principals.

- The “supranationalist” view sees COM as not being so controlled by its “principals”. Rather, the agent is able to escape control in important respects, as a focus on decision-taking demonstrates.