Nugent (2017) - The Government and Politics of the European Union (Ch. 09) PDF

Chapter 9 The Commission F The College of requently portrayed as the civil service of the EU, in reality the Commissioners129 Commission is rather more and rather less than that. Rather more in The Services...

Chapter 9 The Commission F The College of requently portrayed as the civil service of the EU, in reality the Commissioners129 Commission is rather more and rather less than that. Rather more in The Services 140 the sense that the treaties and political practice have assigned to it much greater policy-initiating and decision-making powers than those enjoyed, in The Commission’s Hierarchical Structure 143 theory at least, by national civil services. Rather less in that its role in policy implementation is greatly limited by the fact that the member states are Decision-Making charged with most of the EU’s day-to-day administrative responsibilities. Mechanisms in the Commission144 The Commission is centrally involved in EU decision-making at all levels and on all fronts. With an array of power resources and policy instruments Power Resources 146 at its disposal, and strengthened by the frequent unwillingness or inability of Responsibilities147 other EU institutions to provide clear leadership, the Commission is at the The Varying (and Declining?) very heart of the EU system. Influence of the Commission The Commission is something of a hybrid in that it has both political and in the EU System 159 administrative branches and undertakes both political and administrative functions. This hybrid character of the Commission is a central theme of Concluding Remarks 161 the chapter. The College of Commissioners The College of Commissioners sits at the summit of the Commission and it and its members constitute the Commission’s political branch. Size Originally there were nine Commissioners, but with enlargements their number has grown: to 13, to 14, to 17, to 20, to 25, to 27, and to 28 following Croatia’s accession in 2013. The reason for the lack of symmetry between the number of Commissioners and the number of member states prior to 2004 is that each of the larger states (France, Germany, Italy, Spain, and the UK) used to have two Commissioners. However, so as to avoid the size of the College becoming too big after enlargement it was agreed at the 2000 Nice summit that from January 2005 all member states would have just one Commissioner and that when the EU numbered 27 member states the num- ber of members of the Commission would be less than the number of mem- ber states. The IGC that produced the Lisbon Treaty, following in the steps 129 130 |  of the IGC that produced the Constitutional Treaty, nominated would be required to appear before the duly decided that from 2014 the size of the College Parliament and a vote on confirmation would be held. would be reduced to the equivalent of two-thirds The assumption would be that if the nominee was of the number of member states. However, this not confirmed his candidature would be withdrawn. reduction was later removed from the Lisbon Treaty Chancellor Kohl, acting in his capacity as Council by the European Council as part of its attempt to President, confirmed that the EP would indeed have a persuade the Irish to vote Yes in their second de facto veto over the nomination. In the event, Santer referendum on the Treaty in 2009. In consequence, was confirmed, but only by a narrow majority. As for the ‘one Commissioner for each member state’ the vote of approval on the whole College, the EP held Treaty provision remains. ‘hearings’, with each of the Commissioners-designate being required to appear before the appropriate EP committee before the plenary vote was held. There Appointment was strong criticism of five of the Commissioners- designate, but given that there was no provision for Prior to the College that took office in January 1993, singling them out in a vote, the EP, after being given Colleges were appointed every four years by common certain reassurances by Santer, gave a vote of confi- accord of the governments of the member states. dence to the new College. The Maastricht Treaty changed this procedure, pri- The Amsterdam Treaty confirmed the de facto marily in order to strengthen the links between the confirmatory power the EP had assigned to itself on Commission and the EP. This strengthening was the appointment of the Commission President. The achieved in two ways. The first was by formalising and Treaty also gave the President-designate a potential somewhat stiffening practices that developed in the veto over the national nominees for appointment 1980s regarding the appointment of the Commission to the College. (Under the Maastricht Treaty he was and its President: the member state governments now supposed to be consulted on the national nominees became obliged to consult the EP on who should be to the College, but in practice this amounted to little President, and the College-designate became obliged in 1994.) The Nice Treaty further altered the proce- to present itself before the EP for a vote of confidence. dure by specifying that the decisions in the European The second was by bringing the terms of office of the Council on the nomination of the President and EP and the College into close alignment: Colleges on the other Commissioners plus the decision on would now serve a five-year term and would take up the appointment of the whole College could hence- office six months after EP elections, which are held forth be made by qualified majority vote rather than on a fixed basis in the late spring (normally June) of by consensus. The Lisbon Treaty then introduced years ending in four and nine. (So as to bring about the requirement that in making its nomination for the alignment, a transitional two-year College served College President the European Council should take from January 1993 to January 1995.) into account the recently held EP elections and also On the occasion of the first application of the stated, in what was intended to have symbolic reso- new appointments procedure – in respect of the nance, that the proposed candidate should be elected College that assumed office in January 1995 – the by – not, as previously, merely be approved by – the EP pressed its new powers to the full. When Jacques EP. The Lisbon Treaty also stipulated that one of the Santer, the Luxembourg Prime Minister, was nomi- Commissioners should be the person holding the new nated as President-designate in mid-1994 (the post of High Representative of the Union for Foreign Commission President is formally nominated before Affairs and Security Policy (see Chapter 7). other Commissioners) – at short notice and as a com- Accordingly, the relevant post-Lisbon Treaty pro- promise candidate following the UK government’s visions on the appointment of the President and the refusal to support the Belgian Prime Minister, Jean- College are as set out in Document 9.1. Luc Dehaene – the EP was in fact barely consulted. Treaty rules do, of course, often tell only part However, the EP made it quite clear to the European of the story of what happens in practice, since the Council (the forum in which the nominee of the circumstances in which the rules are applied and national governments is agreed) that whoever was interpreted vary from case to case. This has been  The Commission | 131 Document 9.1 The post-Lisbon Treaty provisions on the appointment of the President of the College and of the other Commissioners Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure. The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph [which states that Commissioners shall be chosen ‘on the ground of their general compe- tence and European commitment from persons whose independence is beyond doubt’]. The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority (Article 17, TEU). … The European Council, acting by a qualified majority, with agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy … (Article 18, TEU). clearly illustrated in recent rounds of appointing the The delayed ratification of the Lisbon Treaty Commission President and College, all which have meant that the first use of its provisions for the been highly politicised both in terms of the political nomination of the Commission President was not composition of the incoming College and in terms of until 2014. With Barroso announcing that he would inter-institutional (especially European Council–EP) not be standing for a third term, from mid-2013 the relations. Accounts of the appointment of the two names of several leading EU politicians were mooted Presidents and three Colleges that preceded the cur- in political circles and in the media as being potential rent Jean-Claude Juncker-headed College – that is, the contenders. However, the EP, resolved to take advan- Colleges headed by Romano Prodi (1999–2004) and tage of its new Lisbon Treaty powers, moved quickly by José Manuel Barroso (2004–09 and 2009–14) – are to assert that it, and not the European Council, now given on pages 106–111 in the seventh edition of this had the right of initiative on who should be the book. Accounts of the appointment of Juncker and of nominee. The Parliament duly operated on the basis his College now follow. of this assumption and worked with the transnational European party political federations (under whose The appointment of Jean-Claude Juncker as umbrellas the political groups in the EP operate) to create a process that led to most of the federations Commission President nominating, before the May 2014 EP elections, a As noted above, the Lisbon Treaty did not change the candidate for Commission President. The candidates appointment processes of the Commission President then attempted to generate ‘conventional politics’ and the College per se, but it did give the EP a poten- during the EP elections, including through holding tially greater role. televised debates (which, in the event, were mostly 132 |  Photo 9.1 José Manuel Barroso, President of the nominated, by 26 votes to 2 (the UK and Hungary European Commission, answering questions in voting against), the candidate of the largest political the European Parliament, November 2009 group in the EP after the elections – which was the centre-right European People’s Party. This candi- date was Jean-Claude Juncker, a former long-term Prime Minister of Luxembourg and a politician with extensive experience in EU circles – including as chair of the influential Eurogroup of eurozone Finance Ministers. On being nominated, Juncker embarked on a campaign of trying to persuade as many EP politi- cal groups as possible to support him in the plenary vote on whether or not he was to be confirmed as Commission President-designate. After he had pre- sented an accommodating paper outlining the politi- cal priorities of his Presidency and had delivered the customary pre-vote plenary address, his nomination was confirmed – by 422 votes to 250, with 47 absten- tions and 10 invalid votes. The process involved in the selection of Juncker was more high profile, more separated from the appointment of the other Commissioners, and, overall, much more politicised than had been the case with previous Commission Presidents. There will be no turning back from this. The details of the process may come to be adjusted, but it is incon- ceivable that the EP will permit a return to the past practice of the European Council independently making the nomination of Commission President- designate. It is now established that the Commission aired only on specialised channels). In what came to be widely called the Spitzenkandidat (top candidate) Photo 9.2 Jean-Claude Juncker, European system, the EP insisted throughout the candidate Commission President, November 2014– selection and then the EP election campaign pro- cesses that the European Council would be obliged to nominate as Commission President the nominee of the political group that gained the most seats or headed the coalition with the largest majority in the new Parliament. Some member state governments were concerned about the EP’s interpretation of the Lisbon Treaty’s provisions on the nomination of the Commission President, with the governments of the UK and Hungary being especially vocal in arguing that the EP did not have the power to nominate. However, in late June, the European Council, anxious to avoid what could have become a major inter-institutional clash with the EP, made the first use of QMV to determine its nominee for Commission President and duly  The Commission | 133 President should reflect the political party ori- entation of the Parliament. In all probability, an BOX 9.1 enhanced and intensified Spitzenkandidat system will apply in the future. The Commissioners The appointment of the Juncker College One Commissioner per member state, including the President and the High Representative. There are three stages in the process of appointing Five-year term, which may be renewed. Commissioners. Each Commissioner is nominated by his/her member state, but must be acceptable to the President-designate. The nomination stage. After, or possibly at the same time as, the President is nominated, the name of the The College as a whole must be approved by the EP after individual ‘hearings’. Commissioner who is also to be High Representative of the Union for Foreign Affairs and Security Policy is Commissioners must be independent and not act as national ‘representatives’. decided by the European Council, by QMV if neces- sary, with the agreement of the President-designate. Each Commissioner has a portfolio. Then all remaining member states – that is, those which have not been ‘assigned’ the President or High Representative posts – nominate ‘their’ candi- only applies to the whole College: the EP has no dates. Or, rather, nominations should only be made formal power to withhold approval from individual by member states at this point but, in practice, the nominees. However, in practice the EP clearly can names of at least some nominees are commonly threaten to withhold approval of the whole College made public before the European Council has agreed if particular Commissioners-designate fail to pass on who it is to support to be President and High muster with MEPs – and so the Parliament does have Representative. a de facto veto over every Commissioner-designate. Efforts by Presidents-designate to influence the Since the appointment of the Santer College, the EP nominations made by member states have, in practice, has used its power of consent over incoming Colleges to met with only very limited success. Juncker fared only ‘require’ all Commissioners-designate to appear individ- marginally better than his immediate predecessors, as ually before ‘examining’ EP committees in US Senate- seen in the fact that even before he had been formally type public ‘hearings’. Each hearing lasts for three nominated as President-designate by the European hours and is held before members of the EP committee Council in late June 2014 the governments of several or committees covering a Commissioner-designate’s member states had already released the name of their portfolio, which means that between 60 and 100 MEPs likely nominee and by the time the EP confirmed his normally attend each hearing (see Photo 12.1). nomination (in mid-July) the number of released Following each hearing, MEPs who are members names amounted to almost half of the Commissioners- of the relevant examining committee or commit- designate. Juncker’s room for manoeuvre in exercising tees hold discussions on the performance of the influence was further restricted by some member Commissioner-designate they have seen and take a states holding back on names he preferred in the hope vote. The outcomes of their deliberations and vote are of persuading him to give their nominee an important then communicated to the Parliament’s Conference of and/or specified portfolio, and by the EP indicating it Committee Chairs and Conference of Presidents (the would be unlikely to confirm the College-designate if latter of which is composed of the political group lead- it did not contain at least as many females (nine) as ers), which decide whether a Commissioner-designate were member of the Barroso II College. is acceptable. In the ensuing two to three weeks, before the vote of consent is formally taken by the EP in ple- The European Parliament approval stage. This stage nary session, various manoeuvrings – which include consists of the College-designate being ‘subject as a inputs from the Commission President-designate and body to a vote of consent by the European Parliament’ which are focused particularly on the suitability of (Article 17(7) TEU). This requirement of approval individuals to be Commissioners at all or to hold the 134 |  portfolio they have been assigned – occur, with the as being more political in nature than those of his aim of ensuring that approval is given. predecessors. He has come near to suggesting that The hearings on the Juncker College were compli- his Commission has a political mandate and he cated by the raised political tensions that had been gen- has made little secret of his, and of his College’s, erated by the Spitzenkandidat process. This was seen close working relations with the leading centrist both in the partisan rumbustiousness of a few hearings political groups in the EP. (See Dinan, 2016, on and also in the hints from MEPs during the hearings this claim by Juncker to be leading ‘a more politi- that if attempts were made to veto a nominee from their cal Commission’.) However, he has only been able political family then they would not hesitate to retali- to press this claimed political underpinning of his ate in kind. For the most part, however, the hearings College so far, not least because the Commission focused, as in the past, on the personal competences exists and operates within a context in which it is of Commissioners-designate and their suitability for required by treaty and is forced by practical circum- the portfolios they had been assigned. Most hearings stances to be, and to be seen to be, politically impar- proceeded to the relative satisfaction of MEPs, but in tial and independent. five cases reservations were expressed and in one case This emphasis on impartiality and independ- – that of the Slovenian nominee, Alenka Bratusek – ence is no more clearly seen than in respect of MEPs decided that she had performed so weakly that the national affiliations of Commissioners. Although she was unacceptable to the Parliament. individual Commissioners frequently are referred The EP’s reservations regarding the five cases were to as ‘the Finnish Commissioner’, ‘the Hungarian quickly resolved – partly by the individuals concerned Commissioner’, and so on, Commissioners are in directly satisfying MEPs and partly by Juncker tweak- fact not supposed to be national representatives. ing the content of a few portfolios. Bratusek, however, Rather, the Commission ‘shall promote the general had little option but to withdraw her candidacy and interest of the Union’ and Commissioners ‘shall be she was replaced with another Slovene nominee. chosen on the ground of their general competence When all remaining matters were resolved, the EP and European commitment from persons whose gave its consent to the composition of the College in independence is beyond doubt’ (Article 17, TEU). late October – by 423 votes to 209, with 67 absten- Much the same sentiments pertain to the requirement tions and 52 not voting. Most EPP (centre-right), that Commissioners should ‘neither seek nor take S&D (centre-left), and ALDE (liberal) MEPs voted instructions from any Government or other institu- in favour of confirmation whilst most of the MEPs tion, body, office or entity’ (ibid.). These requirements of other groups and non-affiliated MEPs either voted are designed to ensure that in undertaking its tasks the against, abstained, or did not vote. Commission looks to the EU-wide interests and that any internal divisions that may exist do not match the The formal appointment stage. The final stage in nationally based divisions of the Council. the appointment of a new College is by approval of In practice, full impartiality is neither achieved nor the governments of the member states, meeting in attempted. Although Commissioners are formally the forum of the European Council. The European appointed by the European Council with the agree- Council formally appointed the Juncker College on 23 ment of the President-designate and the EP, in reality October 2014, with its term of office being set from 1 all but the President and the High Representative November 2014 to 31 October 2019. are national nominees. It would therefore be quite unrealistic to expect Commissioners, upon assuming Photograph 9.3 shows the College that took office office, suddenly to detach themselves from previous in November 2014. loyalties and concern themselves solely with ‘the wider European interest’ – not least since a factor in their nomination by national governments is likely Impartiality and independence to have been an expectation that they would keep an eye on the national interest. The Treaty’s insistence Juncker has sought to take advantage of his more on the complete independence of Commissioners politicised appointment to present his Commission is therefore interpreted flexibly. Indeed, total  The Commission | 135 Photo 9.3 College of Commissioners 2014–19 neutrality is not even desirable since the work of Commissioners ‘must not defend the view of the the Commission is facilitated by Commissioners government that proposed their appointment, but maintaining their links with sources of influence must be solely committed [to] the general interest of throughout the EU, and they can most easily do this the Union’ (Zalan, 2015: 2). in their own member states. But the requirements of the system and the necessities of the EU’s institu- tional make-up are such that real problems arise if Characteristics of Commissioners Commissioners try to push their own states’ interests too hard. It is both legitimate and helpful to bring There are no rules concerning what sort of peo- favoured national interests that may have wider ple, with what sort of experience and background, implications onto the agenda, to help clear national member state governments should nominate to be obstacles to the advancement of Commission pro- Commissioners. It used to be the case that most posals, and to explain to other Commissioners what Commissioners tended to be former national politi- is likely to be acceptable in ‘my’ national capital. But cians just short of the top rank. However, as the EU, to go further and act virtually as a national spokes- and the Commission with it, has become increas- man, or even to be seen as being over-chauvinistic, ingly important, so has the political weight of the as a few Commissioners occasionally have been, is College’s membership increased, and now most to risk incurring the displeasure of the Commission Commissioners are former ministers, and some of President and losing credibility with other them very senior ministers. Commissioners. So, for example, in December 2015, Given the diverse political compositions of the the Hungarian Commissioner, Tibor Navracsics, EU’s national governments, there is naturally a range who had written to the other Commissioners object- of political opinion represented in the Commission, ing to the Commission’s registration of a European with its political balance reflecting the political com- Citizens’ Initiative that criticised the Hungarian position of the governments of the member states Prime Minister, Viktor Orbán, was sent a letter of at the time the College is appointed. Crucially, all rebuke by President Juncker reminding him that governments have made it their custom to nominate 136 |  people who are broadly pro-European and who have Inevitably, given the importance of the office, not been associated with any extremist party or until 2014 when (as shown above) it lost its sole any extreme wing of a mainstream party. So, whilst power to independently nominate who should be the Colleges certainly contain party political differences, Commission President, the European Council was very these are usually within a range that permits at least careful about who it nominated. This was witnessed reasonable working relationships. by the last four Presidents it chose: Jacques Delors was Amongst important characteristics of the 28 a former French Finance Minister; Jacques Santer and Commissioners at the beginning of the Juncker Romano Prodi were former Prime Ministers – Santer College in November 2014 were: nine were women of Luxembourg and Prodi of Italy; whilst José Manuel (the same number as in the Barroso II College); nine Barroso was the serving Prime Minister of Portugal. were returning Commissioners (a much lower per- As noted above, in 2014 the EP’s recommendation centage than normal); four were former prime minis- to the European Council followed in this tradition of ters and four were former deputy prime ministers; and nominating ‘big names’, with Juncker being a former in terms of their political background, 15 were centre- Prime Minister of Luxembourg. (If the EPP had not right, eight were centre-left, and five were liberals. been the largest political group in the Parliament after the 2014 EP elections, the nominee probably would have been Martin Schultz – the S&D ‘candidate’ and The President of the College the then President of the EP.) The most prestigious and potentially influential College post is that of the President. Indeed, such has Commissioners’ portfolios been the increased role and profile of the President in recent years that it is common to speak of a ‘presiden- All Commissioners have portfolios: that is, particu- tialisation’ of the Commission as having taken place. lar areas of responsibility. Some portfolios – such as Although most important Commission deci- Competition, Trade, and Environment – are more or sions must be taken collectively by the College, the less fixed, whilst others, especially those of a broader President: and less specific nature, can be varied, or even created, depending on how a new President sees the role and Is the most prominent, and usually the best known, tasks of the Commission and depending sometimes, of the Commissioners. too, on the pressures to which he is subject from Is the principal representative of the Commission Commissioners-designate and national governments. in its dealings with other EU institutions and with Commissioner portfolios carry with them respon- outside bodies. sibilities for leading and driving the work of those Is expected to give a sense of direction to his parts of the Commission services that are related to fellow Commissioners and, more broadly, to the the content of their portfolios. Commissioners are Commission as a whole. Indeed, Article 17 (6) TEU not formally the heads of services, but they are their states the President ‘lays down guidelines within political reference points and overseers. As can be seen which the Commission is to work’. in Box 9.2, the relationships between Commissioners Allocates Commissioners’ portfolios (see next and the services are usually not on a simple one-to- section). one basis. May require fellow Commissioners to resign. Prior to the implementation of the Amsterdam Is directly responsible for overseeing some of Treaty, the distribution of portfolios amongst the the Commission’s most important administrative Commissioners was largely a matter of negotiation services – notably the Secretariat General which, and political balance. The President’s will was the amongst other functions, is responsible for the most important factor, but he could not allocate posts coordination of Commission activities and for rela- simply in accordance with his own preferences. He was tions with the Council and the EP. intensively lobbied – by the incoming Commissioners May take on specific policy responsibilities of his themselves, and sometimes by governments trying own, usually in harness with other Commissioners. to get ‘their’ Commissioners into positions that were  The Commission | 137 especially important from the national point of view. policy work was assigned to other Commissioners, in Bearing in mind all these difficulties, it is not surpris- the usual way. Though not described as being ‘jun- ing that unless a resignation, death, or enlargement ior’ Commissioners, these other Commissioners were enforced it, reshuffles did not usually occur during the required to work via ‘their’ Vice-President(s) in newly lifetime of a Commission. established Commissioners’ groups or, as they are also Clearly this situation meant that Commissioners known, project teams. One of the new Vice-Presidents, were not necessarily assigned to the most appropri- Frans Timmermans, was designated as the First Vice- ate posts, and also that not much could be done if a President. The Juncker College is thus more hierarchi- Commissioner was not performing satisfactorily. The cally structured than its predecessors. (See Box 9.2 for situation was, however, partly addressed in a declara- the assignment of portfolios in the Juncker College.) tion 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 Commissioners’ cabinets Representative, ‘the responsibilities incumbent on the Commission shall be structured and allocated among To assist them in the performance of their duties, its members by its President …. The President may Commissioners have personal cabinets. These consist of reshuffle the allocation of those responsibilities dur- small teams of officials numbering, under rules intro- ing the Commission’s term of office’ (Article 248, duced by Juncker, as follows: the President – 12 cabinet TFEU). In practice, up to the time of writing (late members and 19 support staff; the High Representative 2016), no significant re-shuffling of portfolios has – 11 and 15; the First Vice-President – 8 and 11; Vice- occurred once a College has assumed office, though Presidents – 7 and 10; other Commissioners – 6 and 10. adjustments have necessarily had to be made when a Members of cabinets used to be mostly fellow Commissioner has resigned, as the UK Commissioner nationals of their Commissioners, which enabled did after the June 2016 Brexit referendum. (In prac- cabinets to act as important links with Commissioners’ tice, resignations are rare, though a handful did occur home bases. But President Prodi wanted cabinets to in 2014 as the end of the College’s term of office have a more multinational character. To give effect loomed and some Commissioners sought ‘bolt holes’ – to this, new rules were introduced which still apply, including in the EP.) requiring that each cabinet should include at least There is no doubt that, notwithstanding Article 248, three nationalities and indicating that the chef de cabi- recent Presidents have been lobbied by Commissioners- net or the deputy chef de cabinet should preferably be designate and national governments on portfolio allo- of a different nationality to the Commissioner. cations – especially concerning such key portfolios as Typically, a cabinet member is a dynamic, extremely Internal Market, Trade and Competition. However, hard-working, 35–50-year-old, who has been sec- there is also no doubt that recent Presidents have onded or recruited from some part of the EU adminis- acted much more autonomously than their predeces- tration or from the civil service of the Commissioner’s sors when assigning portfolios. That this is so was member state. no more clearly seen than at the beginning of the Cabinets undertake a number of tasks: they gather Juncker College, when the incoming President initi- information and seek to keep their Commissioner ated a major re-organisation of the structure of the informed of developments within and outside of College that involved the creation of a new type of his/her allocated policy area; they liaise with other portfolio. This creation was partly to deal with the parts of the Commission, including other cabinets, increasing problem for Presidents of finding a suf- for purposes such as clearing up routine matters, ficient number of substantial portfolios to satisfy building support for their Commissioner’s policy pri- the work expectations of incoming Commissioners orities, and generally trying to shape policy proposals and partly also to improve the internal efficiency as they come up the Commission system; and they of the College. Juncker’s creation involved a new act as a sort of unofficial advocate/protector in the type of Commissioner, with seven Vice-Presidents Commission of the interests of their Commissioner’s being given leading and coordinating responsibili- country. Over and above these tasks, the President’s ties in broad areas of policy activity. More specific cabinet is centrally involved in brokering agreements 138 |  Box 9.2 The Juncker College* Name and Age Member State Portfolio Main Direct Services Responsibilities Jean-Claude Luxemburg President Secretariat-General; Legal Service; DG Juncker Communication; Bureau of European Policy 59 Advisors Frans Netherlands First Vice-President: Internal Audit Service Timmermans Better Regulation, 53 Inter-Institutional Relations, Rule of Law & Charter of Fundamental Rights, Sustainability. Federica Italy Vice-President and European External Action Service; Service for Mogherini High Representative Foreign Policy Instruments 41 of the Union for Foreign Policy and Security Policy Kristalina Bulgaria Vice-President: DG Budget; DG Human Resources and Georgieva Budget and Human Security; European Anti-Fraud Office, DG 61 Resources Translation, DG Interpretation. Maroš Šefčovič Slovakia Vice-President: 48 Energy Union Jyrki Katainen Finland Vice-President: Jobs, 42 Growth, Investment and Competitiveness Valdis Latvia Vice-President: The Dombrovskis Euro and Social 43 Dialogue Andrus Ansip Estonia Vice-President: Digital 57 Single Market Vĕra Jourová Czech Justice, Consumers & DG Justice; the relevant parts of the Consumer, 50 Republic Gender Equality Health and Food Executive Agency Dimitris Greece Migration and DG Home Affairs; the relevant parts of the Avramopoulos Home Affairs and Research Executive Agency 61 Citizenship Günther Germany Digital Economy and DG for Communications Networks, Content Oettinger Social Affairs and Technology; DG Informatics; the relevant 60 parts of the Education, Audio-visual and Culture Executive Agency; the Executive Agency for Small and Medium-Sized Enterprises; the Innovation and Networks Executive Agency; the Research Executive Agency  The Commission | 139 BOX 9.2 Continued Vytenis Lithuania Health and Food DG Health and Consumers; the relevant parts Andriukaitis Safety of the Consumers, Health and Food Executive 63 Agency Margrethe Denmark Competition DG Competition Vestager 46 Tibor Hungary Education, Culture, DG Education and Culture; Joint Research Navracsics Youth and Sport Centre; the relevant parts of the Education, 48 Audiovisual and Culture Executive Agency; the Research Executive Agency Pierre France Economic and DG Economic and Financial Affairs; DG Moscovici Financial Affairs, Taxation and Customs Union 56 Taxation and Customs Violeta Bulc Slovenia Transport DG Mobility and Transport; the relevant parts 50 of the Innovation and Networks Executive Agency Jonathan Hill UK Financial Stability, DG Financial Stability, Financial Services and 53 Financial Services Capital Markets Union and Capital Markets Union Carlos Moedas Portugal Research, Science and DG Research and Innovation 43 Innovation Marianne Belgium Employment, Social DG Employment, Social Affairs and Inclusion; Thyssen Affairs, Skills and Eurostat 58 Labour Mobility Elżbieta Poland Internal Market, DG Enterprise and Industry; DG Internal Bieńkowska industry, Market and Services; the relevant parts of the 50 Entrepreneurship, Executive Agency for Small and Medium-Sized SMEs and Space Enterprises. Cecilia Sweden Trade DG Trade Malmström 46 Phil Hogan Ireland Agriculture and Rural DG Agriculture and Rural Development; the 54 Development relevant parts of the Research Executive Agency Corina Creţu Romania Regional Policy DG Regional Policy 47 Miguel Arias Spain Climate Action and DG Climate Action; DG Energy; The Euratom Cañete Energy Supply Agency; the relevant parts of the 64 Executive Agency for Small and Medium-Sized Enterprises. Continued 140 |  BOX 9.2 Continued Name and Age Member State Portfolio Main Direct Services Responsibilities Karmenu Vella Malta Environment, DG Environment; DG Maritime Affairs and 64 Maritime Affairs and Fisheries; the relevant parts of the Executive Fisheries Agency for Small and Medium-Sized Enterprises Christos Cyprus Humanitarian DG Humanitarian Aid and Civil Protection; Stylianides Aid and Crisis the relevant parts of the Education, Audiovisual 56 Management and Culture Executive Agency Johannes Hahn Austria European DG Enlargement 56 Neighbourhood Policy and Enlargement Negotiations Neven Mimica Croatia International DG Development and Cooperation – 60 Cooperation and EuropeAid Development * At time of assuming office in November 2014. from the many different views and interests that exist Of the established staff, about half are employed in the amongst Commissioners and in the Commission AD grade, which is the grade that deals with policy- system as a whole so as to ensure that, as an institu- making. (See Nugent and Rhinard, 2015, for a detailed tion, the Commission is clear, coherent, cohesive, and breakdown of the Commission’s staffing figures.) efficient. The main reason that the size of the Commission’s services is so small is that they do not, for the most part, deal with the labour-intensive task of dealing with ‘front-line’ policy implementation. That respon- The Services sibility lies with administrative bodies based in the member states. Size Below the Commissioners is the Commission’s Appointment administration, which is commonly known as the Commission’s services. This is by far the biggest ele- Permanent staff are recruited on the basis of open ment of the whole EU administrative system, though competitive procedures, which for the AD grade in it is tiny as compared with the size of administrations particular is highly competitive. An internal career in the member states: EU member states average structure exists and most of the top jobs are filled via around 300 civil servants per 10,000 inhabitants, as internal promotion. However, pure meritocratic prin- against 0.8 per 10,000 for all EU institutions. ciples are disturbed by a policy that tries to provide for In 2016 the Commission’s staffing establishment a reasonable national balance amongst staff. All gov- numbered just over 25,000, to which must be added ernments have watched this closely and have sought some 8,000 in non-established posts of various kinds. to ensure that their own nationals are well represented  The Commission | 141 throughout the EU administrative framework, espe- Most of the organisational units carry the title of cially in the upper reaches. For the most senior posts Directorate General (DG) whilst those that do not are something akin to an informal national quota system known as general or special services. A list of the DGs has operated, though this is now not as prevalent as it and other services is given in Box 9.4. was before a reform programme that has been under The size and internal organisation of DGs and way since the early 2000s to modernise Commission specialised services varies. Most commonly, they personnel, management and administrative policies. have a staff of between 200 and 500, divided into six The multinational staffing policy of the Commission, to ten directorates, which in turn are each divided and indeed of the other EU institutions, has both into three to six units. However, policy importance, advantages and disadvantages, as is shown in Box 9.3 workloads, and specialisations within DGs produce Internal mobility between posts is encouraged, and many departures from this norm. Thus in terms for those in senior and sensitive posts is obligatory. of size, DG Translation is the largest DG, with a staff of almost 2, 300 to handle the EU’s 24 official languages and 552 possible language combinations. Organisation (In practice, most day-to-day work is conducted in English and French.) Other large DGs include the The Commission’s services are divided into organisa- Joint Research Centre (with just under 2,000 staff), tional units in much the same way as national govern- Development (with over 1,000), and Agriculture ments are divided into ministries and departments. (with almost 1,000). Box 9.3 Advantages and disadvantages of the Commission’s multinational staffing policy Advantages 1 The staff have a wide range of experience and knowledge drawn from across all the member states. 2 The confidence of national governments and administrations in EU decision-making is helped by the knowledge that compatriots are involved in policy preparation and administration. 3 Those who have to deal with the Commission can often more easily do so by using their fellow nationals as access points. A two-way flow of information between the Commission and the member states is thus facilitated. Disadvantages 1 Insofar as some senior personnel decisions are not made on the basis of pure meritocratic principles but result in part from a wish for there to be a reasonable distribution of nationals from all member states in the upper reaches of the Commission, two damaging consequences can follow. First, the best avail- able people do not necessarily fill all posts. Second, the morale and commitment of some staff can be damaged. 2 Senior officials can occasionally be less than wholly and completely EU-minded. For however impartial and even-handed they are supposed to be, they cannot, and usually do not wish to, completely divest themselves of their national identifications and loyalties. 3 There are differing policy styles in the Commission, reflecting different national styles. These differences are gradually being flattened out as the Commission matures as a bureaucracy and develops its own norms and procedures, but the differences can still create difficulties, especially when there is an influx of staff into middle-ranking and senior grades following EU enlargements. 142 |  BOX 9.4 Directorates General and the main general and special services of the Commission* Directorates General Agriculture and Rural Development Migration and Home Affairs Budget Mobility and Transport Climate Action Neighbourhood and Enlargement Negotiations Communication Regional and Urban Policy Communications Networks, Content and Technology Research and Innovation Competition Secretariat-General Economic and Financial Affairs Service for Foreign Policy Instruments Education and Culture Taxation and Customs Union Employment, Social Affairs and Inclusion Trade Energy Translation Environment European Civil Protection and Humanitarian Aid Operations Eurostat Financial Stability, Financial Services and Capital Markets Union Health and Food Safety Main General and Special Services Human Resources and Security European Anti-Fraud Office Informatics European Political Strategy Centre Internal Market, Industry, Entrepreneurship and SMEs Internal Audi Service International Cooperation and Development Legal Service Interpretation Publications Office Joint Research Centre Justice and Consumers Maritime Affairs and Fisheries *Situation in October 2016. There is no hard and fast reason why some services support for policies than directly handling policies, but have DG status and others do not. It is true that non- this is not always the case. So, the Secretariat-General, DG services tend to be more concerned with providing which carries the main responsibility for ensuring the  The Commission | 143 Commission as a whole functions coherently, effec- not members of the Council of Ministers – the body tively, and efficiently, is a DG whilst the Legal Service, that, often in association with the EP, takes most final which also deals with all policy areas, is not. Non-DG decisions on important policy matters. (The High services should not, therefore, be thought of as being Representative, who chairs the Foreign Ministers junior to DGs. Council but is not a voting member of it, is the excep- tion to this.) These structural arrangements mean that any The Commission’s notion of individual responsibility, such as exists in most member states in relation to ministers – albeit Hierarchical Structure usually only weakly and subject to prevailing politi- cal currents – is difficult to apply to Commissioners. The hierarchical structure of the Commission is as It might even be questioned whether it is reasonable set out in Box 9.5. It is a reasonably clear s­tructure, that the Commission should be subject to collec- although in practice complications can occur – espe- tive responsibility – as it is by virtue of Article 234 cially at the topmost levels. One reason for this of the TFEU which obliges it to resign if a motion is that an imperfect match exists between some of censure on its activities is passed in the EP by a Commissioners’ portfolios and the responsibili- two-thirds majority of the votes cast, representing ties of services. With more services than there are a majority of all members. Collective responsibil- Commissioners, some Commissioners have to carry ity may be thought to be reasonable in so far as responsibilities that touch on at least part of the work all Commission proposals and decisions are made of several services, as Box 9.2 shows. Another reason collectively and not in the name of individual is that the lines of division between the responsibili- Commissioners, but at the same time it may be ties of Vice-Presidents and other Commissioners are thought to be unreasonable in so far as the ability sometimes blurred. of the Commission to undertake its various tasks Another structural problem concerning Comm­ successfully is highly dependent on other EU actors. issioners is the curious halfway position in which In practice no censure motion has been passed they are placed. To use the British parallel, they are although, as is described in Chapter 12, one came more than permanent secretaries but less than min- close to being so in January 1999 and it was the near isters. For whilst they are the principal Commission certainty of one being passed that prompted the spokesmen in their assigned policy areas, they are Santer College’s resignation in March 1999. Box 9.5 The hierarchical structure of the Commission All important matters are channelled through the weekly meetings of the College of Commissioners. At these meetings decisions are almost invariably taken by consensus, but majority voting is possible. Before College meetings, agenda items are discussed by relevant Commissioner groups and must be ‘cleared’ by the relevant Vice-President and the First Vice-President. In particular policy areas the Commissioner holding the portfolio in question, working closely with the relevant Vice-President, 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. 144 |  Decision-Making Mechanisms energy are to be researched and developed probably would originate in DG Energy, but would have direct in the Commission implications for DG Research and Innovation, DG Budget, and perhaps DG Internal Market, Industry, The hierarchical structure that has just been described Entrepreneurship and SMEs. Sometimes policy and produces a ‘model’ route via which proposals for legislative proposals do not just touch on the work decisions make their way through the Commission of other DGs but give rise to sharp conflicts, the machinery. This route is set out in Box 9.6. From sources of which may be traced back to the conflicting the ‘model’ route all sorts of variations are possible, ‘missions’ of DGs: for example, there are sometimes and in practice are commonplace. For example, if disputes between DG Competition and DG Regional draft proposals are relatively uncontroversial or there and Urban Policy, with the latter tending to be much is some urgency involved, procedures and devices less concerned than the former about rigidly applying can be employed to prevent logjams at the top and EU competition rules if European industry is thereby expedite the business in hand. One such procedure assisted and advantaged. Provision for liaison and enables the College of Commissioners to authorise coordination is thus essential if the Commission is the most appropriate amongst their number to take to be effective and efficient. There are various pro- decisions on their behalf. Another procedure is the cedures and mechanisms aimed at providing this so-called ‘written procedure’, by which proposals that necessary coordination. Five of these are particularly seem to be straightforward are circulated amongst all worth noting. Commissioners and are officially adopted if no objec- First, at the level of the DGs, various management tion is lodged within a specified time, usually a week. practices and devices have been developed to try to Urgent proposals can be adopted even more quickly rectify the increasingly recognised problem of hori- by ‘accelerated written procedure’. zontal coordination. In many policy areas this results Another set of circumstances producing departures in important coordinating functions being performed from the ‘model’ route is when policy issues cut across by a host of standing and ad hoc arrangements: inter- the Commission’s administrative divisions – a very service groups and meetings are the most important common occurrence given the sectoral specialisations of these arrangements, but there are also task forces, of the DGs. For example, a draft directive aimed at project groups, and numerous informal and one-off providing a framework in which alternative sources of exchanges from Director General level downwards. Box 9.6 ‘Model route’ for the development of a proposal within the Commission 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 – from consultants, national officials and experts, and sectional interests – is sought, and if necessary contracted, as appropriate. The 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 down 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 and 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 chefs 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 for redrafting, or defer taking a decision.  The Commission | 145 Second, the main institutional agency for pro- tank (then known as the Forward Studies Unit, but moting coordination is the Secretariat-General of since reconstituted and now called the European the Commission, which is specifically charged with Political Strategy Centre) – than to the views of his ensuring that proper coordination and communica- fellow Commissioners. tion takes place across the Commission. In exercis- Fourth, there are the College-level coordinating ing this duty, the Secretariat-General satisfies itself mechanisms created by Juncker, which were outlined that all Commission interests have been consulted above. These mechanisms are the seven coordinating before a proposal is submitted to the College of Vice-Presidents and the related Commissioner project Commissioners. teams, which bring together Commissioners with Third, the President of the Commission has an overlapping and closely linked policy responsibili- ill-defined, but generally expected, coordinating ties. Amongst the groups are: Energy Union; Digital responsibility. A forceful personality may be able to Single Market; and Jobs, Growth, Investment and achieve a great deal in forging a measure of collec- Competitiveness. tive identity out of the varied collection of people Fifth, the College of Commissioners, in theory at from quite different national and political back- least, is in a strong position to coordinate activity and grounds who sit around the Commission table. But take a broad view of Commission affairs. Everything it can only be done tactfully and with adroit use of of importance is referred to the Commissioners’ social skills. Jacques Delors, who presided over three weekly meeting and at that meeting the whole sweep Commissions between 1985 and 1995, unquestion- of Commission interests is represented by the portfo- ably had a forceful personality, but he also displayed lios of those gathered around the table. traits and acted in ways that had the effect of under- mining team spirit amongst his colleagues. For exam- *  *  * ple, he indicated clear policy preferences and interests Commissioners’ meetings are always preceded by of his own; he occasionally made important policy other meetings designed to ease the way to decision- pronouncements before fully consulting the other making: Commissioners; he criticised Commissioners during Commission meetings and sometimes, usually by implication rather than directly, did so in public too; Informal and ad hoc consultations may occur between Commissioners who are particularly and he frequently appeared to give more weight to affected by a proposal. the counsel of personal advisers and to people who reported directly to him – drawn principally from his The above-described groups of Commissioners exist for the purpose of facilitating liaison and cabinet and from the Commission’s in-house think cooperation and enabling discussions at College meetings to be well prepared and efficient. The First Vice-President takes a leading role in Photo 9.4 Jacques Delors: President of the determining when matters are ready/need to be European Commission, 1985–95 placed on the agenda of a College meeting, and liaises closely with other Commissioners, especially Vice-Presidents, on this. The Commissioners’ agenda is always consid- ered at a weekly meeting of the heads of the Commissioners’ cabinets (known as Hebdo). These chefs de cabinet meetings are chaired by the Commission’s Secretary-General and are usually held two days before the meetings of the Commission itself. Their main purpose is to reduce the length of College meetings by reaching agree- ments on as many items as possible and referring only controversial/difficult/major/politically sensi- tive matters to the Commissioners. 146 |  Feeding into chefs de cabinet meetings are the BOX 9.7 outcomes of meetings between the cabinet members responsible for particular policy areas. Officials from the different cabinets, who are gener- Power resources of the Commission ally well known to one another, often exchange views on an informal basis if a proposal looks as Its powers of initiative (which are exclusive and non-exclusive). though it may create difficulties. (Officially cabinets do not become involved until a proposal has been Its neutrality (which results in it being seen as less partisan and more trustworthy than most formally launched by a DG, but earlier consulta- tion is common. If this consultation is seen by DGs other EU actors). to amount to interference, tensions and hostilities It is present in virtually all decision-making forums and at all decision-making stages (and can arise – not least because cabinet officials are usually junior in career terms to officials in the so is very well-informed about the positions of upper reaches of DGs.) other actors and is often looked to by them for advice). There is, therefore, no shortage of coordinating Its access to information about EU policies and needs (an access that is assisted by it being arrangements within the Commission, not least at Commissioners level. Of course, not all coordinat- surrounded by hundreds of expert and advisory ing problems have been resolved with, for example, committees). departmental and policy loyalties sometimes still Smaller states often look to the Commission for leadership and protection – and most EU states seemingly tending to discourage new and integrated approaches to problems and the pooling of ideas. As are small. in most administrations, demarcation lines between spheres of responsibility are sometimes too tightly drawn and policy competences are sometimes too politicians – the legitimacy that stems from having jealously guarded – especially by larger and tradition- been directly elected by citizens and the power to not ally relatively independent DGs (such as Agriculture only propose policy measures but also to actually take and Competition). But, notwithstanding such dif- final decisions on them. But, the Commission does ficulties, the various efforts that have been made over have a key resource of politicians: the power to initiate the years to improve internal coordination, and hence policies. Where legislation is concerned, this power is Commission coherence and effectiveness, seem to mostly exclusive to it. Where other measures are con- have been broadly successful. cerned, the initiating power is shared with other EU actors – most particularly the European Council and the Council. Even, however, where the Commission’s initiating powers are not exclusive, its position can Power Resources be greatly strengthened by other actors often finding it logistically difficult to develop initiatives without Like all political actors, the Commission needs power receiving considerable assistance from the Commission. resources to be able to exercise influence. As Box 9.7 As regards the Commission having resources that shows, the Commission is well endowed with such are normally associated with public administrations, resources. the most important of these are its access to, and its The power resources available to the Commission understanding of, information about the operation illustrate the special nature of the Commission as an of EU policies: what is working well?; what needs institution, and especially the ways in which it com- reforming?; what would be the consequences, for the bines features of being both a political institution and EU as a whole and for parts of it, of introducing a an administrative institution. As regards it having particular policy or policy amendment? Often only the resources that are normally associated with political Commission, drawing on its many sources of infor- institutions, it does not have the resources that are most mation, is in a position to make accurate judgements associated with, and are most important for, national on such questions.  The Commission | 147 Moreover, such judgements by the Commission are appropriate initiatives to that end.’ This means, more likely to be generally trusted than are judgements amongst other things, that the Commission is charged by, say, a national government or a political group in with the responsibility of proposing measures that the EP. This brings in another type of power resource are likely to advance the development of the EU. of the Commission: those that stem from the unique Where legislation is envisaged, this power to propose nature of the EU and the Commission’s special posi- is exclusive to the Commission ‘except where the tion in it. The Commission’s duty to be neutral and Treaties provide otherwise’ (Article 17, TEU). The non-partisan mean that policy proposals stemming most important areas where the treaties do so pro- from it generally are given a more favourable reception vide otherwise are in respect of certain AFSJ matters. than are proposals coming from a more sectional or Where proposals do not involve legislation, as in the perceived special interest source. This is not, of course, CFSP area, the Commission’s proposing and initiating to say that there are not circumstances in which powers are shared with the member states. Commission proposals do not run into stiff resist- In addition to its formal treaty powers, political ance, but even then the Commission’s special position realities arising from the institutional structure of in the EU system gives it considerable advantages. the EU also dictate that the Commission is centrally Amongst these advantages are that, unlike national involved in formulating and developing policy. The administrations, the Commission is physically present most important of these realities is that there is noth- in virtually all policy-making forums and at all policy- ing like an EU Head of Government or Council of making stages (including all Council meetings and EP Ministers capable of providing the EU with clear and committees) and so is well-placed to be able to antici- consistent policy direction, let alone a coherent legis- pate the reactions of other institutions to proposals it lative programme. Senior Commission officials who makes and to be able to explain and defend its stances. have transferred from national civil services are often The Commission’s power resources will be further greatly surprised by the lack of political direction from explored and illustrated in the next section on the above and the amount of room for policy and legisla- Commission’s responsibilities. tive initiation that is available to them. Their duties are often only broadly defined and there can be con- siderable potential, especially for more senior officials, to stimulate development in specific and, if they wish, Responsibilities new and innovative policy areas. An indication of the scale of the Commission’s Some of the Commission’s responsibilities and pow- proposing activities is seen in the fact that in an aver- ers are prescribed in the treaties and in EU legislation. age year it issues up to 2,000 proposals for directives, Others are not formally laid down but have developed regulations and decisions, most of which are, admit- from practical necessity and the requirements of the tedly, administrative in nature. It also normally issues EU system. around 250–300 communications and reports, 5–10 Whilst recognising that there is some overlap Green Papers, and a couple of White Papers. between the categories, the responsibilities of the Although in practice they greatly overlap, it will be Commission may be grouped under six broad head- useful here, for analytical purposes, to look separately ings: proposer and developer of policies and legislation; at policy initiation and development on the one hand, executive functions; guardian of the legal framework; and legislative initiation and development on the other. external representative and negotiator; mediator and conciliator; and promoter of the general interest. *  *  * Policy initiation and development takes place at several levels in that it ranges from sweeping ‘macro’ policies Proposer and developer of to detailed policies for particular sectors. Whatever the policies and legislation level, however, the Commission – important though it is – does not have a totally free hand in what it does. Article 17 TEU states that ‘The Commission shall As is shown at various points elsewhere in this book, promote the general interest of the Union and take all sorts of other actors – including the European 148 |  Council, the Council, the EP, national governments, by removing regulatory barriers and creating a fully sectional groups, regional and local authorities, and functional digital single market. Examples of the lat- private firms – also attempt to play a part in the policy ter include: attempting to generate a more integrated process. They do so by engaging in such activities as approach to a policy area – as with the 2015 Green producing policy papers, issuing exhortations and Paper: Building a Capital Markets Union and the 2015 recommendations, and lobbying. Such activities are follow-up Action Plan on Building a Capital Markets frequently designed to exert direct policy pressure on Union; attempting to strengthen existing policy the Commission. From its earliest deliberations on a frameworks – as with three communications that were possible policy initiation, the Commission has to take issued between 2010-2014 setting out ideas for tight- note of many of these outside voices if its proposals are ening and further integrating the many dimensions to find broad support and be effective in the sectors to of industrial policy; and attempting to promote ideas, which they are directed. The Commission must con- discussion and interest as a possible preliminary to cern itself not only with what it believes to be desirable getting a new policy area or initiative off the ground – but also with what is possible. The policy preferences as with the 2005 discussion document A European of others must be recognised and, where necessary and Institute of Technology? that was issued as part of the appropriate, be accommodated. mid-term review of the Lisbon Process. Of the many pressures and influences to which But whatever their particular focus, most – though the Commission is subject in the exercise of its policy not all – policy initiatives need to be followed up with initiation functions, the most important are those that legislation if they are to have bite and be effective. emanate from the European Council and the Council. When these institutions indicate that they wish to *  *  * see certain sorts of proposal laid before them, the If the Commission is well placed with regard to policy Commission is obliged to respond. However, impor- initiation and development, it is even better placed tant though the European Council and the Council with regard to legislative initiation and development, are as policy-initiating bodies, the extent to which they for it alone normally has the power to initiate and undermine the initiating responsibilities and powers draft legislative proposals. The other two main insti- of the Commission ought not to be exaggerated. For tutions involved in the legislative process, the Council the institutional structures and compositions of the and the EP, can request the Commission to produce European Council and the Council make it difficult proposals, but they cannot do the initiating or draft- for them to be bold and imaginative. They tend often ing themselves. Moreover, after a legislative proposal to be better at responding than at originating and has been formally tabled the Commission still retains proposing, which results in the Commission not only a considerable measure of control, for it is difficult taking instructions from them but also using them to for the Council or the EP to amend it without the legitimise its own policy preferences. Commission’s agreement: the Council can only do so The Commission’s policy-initiating activities cover by acting unanimously and the EP can only do so in both major and cross-sectoral policies and policy specified circumstances and then only with the sup- programmes and also specific policy areas. Examples port of an absolute majority of its component mem- of the former include: the 2014 Communication… on bers. That said, where EP-Council deliberations result Long-Term Financing of the European Economy, which in them reaching an agreement the Commission tends established the need for and possible ways of raising to fall in line and to amend its proposals accordingly new investment in the European economy and the fol- As with the preparation of policy proposals, the low-up 2014 Communication From the Commission… Commission makes considerable use of outside An Investment Plan for Europe, which set out plans for sources, and is often subject to considerable outside a new investment fund capable of generating some pressures, when preparing legislative proposals. The €300 billion of ‘new money’. Another example of the preparation of legislative proposals is thus often former type of policy-initiating activity is the 2015 accompanied by an extensive sounding and listening Communication… A Digital Single Market Strategy for process, especially at the pre-proposal stage – that Europe, which set out a 16-point strategy for opening- is, before the Commission has formally presented a up digital opportunities for people and businesses proposal to the Council and the EP. In this process an  The Commission | 149 important role is played by a vast network of advisory tees, with over 20 committees for products covered committees that have been established over the years. by a market regime plus half a dozen or so more general committees. Most of the agricultural advisory committees have a membership of around 50, but The Commission’s advisory committee there are a few exceptions: amongst the largest are network those dealing with cereals, milk and dairy products, The committees are of two main types. and sugar, whilst amongst the smallest are the veteri- nary committee and the committee on hops. Expert committees. These consist of national offi- In addition to these two types of committees there cials, experts and specialists of various sorts. Although are many hybrids with mixed forms of membership. nominated by national governments, the committee members are not normally viewed as official govern- Most of the advisory committees are chaired and mental spokesmen in the way that members of Council serviced by the Commission. A few are serviced by the working parties are (see Chapter 10), so it is usually Council and technically are Council committees, but possible for them to conduct their affairs on a reasonably the Commission has observer status on these so the informal basis. Many of these committees are well-estab- distinction between the two types of committee is of lished, meet on a fairly regular basis, and have a more or little significance in terms of their ability to advise the less fixed membership; others are ad hoc – set up, very Commission. frequently, to discuss an early draft of a Commission The extent to which policy sectors are covered by legislative proposal – and can hardly be even described advisory committees varies. One factor making for as committees in that they may only ever meet once or variation is the degree of importance of the policy twice. In terms of their interests and concerns, some of within the EU’s policy framework – it is hardly sur- the committees are wide-ranging, such as the Advisory prising, for example, that there should be many more Committee on Restrictive Practices and Dominant agricultural advisory committees than there are edu- Positions and the Advisory Committee on Community cational advisory committees. Another factor is the Actions for the Elderly, whilst others are more special- dependence of the Commission in particular policy ised and technical, such as the Advisory Committee on areas on outside expertise and technical knowledge. A Unfair Pricing Practices in Maritime Transport and the third factor is the preferences of DGs – some incline Committee of Experts on International Road Tariffs. towards the establishment of committees to provide them with advice, whilst others prefer to do their lis- Consultative committees. These are composed of tening in less structured ways. representatives of sectional interests and are organised The influence exercised by advisory committees and funded by the Commission without reference varies enormously. In general, the committees of to the national governments. Members are normally national experts are better placed than the consulta- appointed by the Commission from nominations tive committees. There are a number of reasons for made by representative EU-level organisations: either this. First, Commission consultation with the expert umbrella groups such as BusinessEurope (sic) and committees is usually compulsory in the procedure for the European Trade Union Confederation (ETUC) drafting legislation, whereas it is usually optional with or more specialised sectoral organisations and liai- the consultative committees. Second, the expert com- son groups such as the European Tour Operators’ mittees can often go beyond offering the Commission Association (ETOA) and the Partnership for Energy technical advice and alert it to probable governmental and the Environment (EPEE, which represents reactions to a proposal, and therefore to possible prob- the heating, cooling and refrigeration industry in lems that may arise at a future decision-making stage Europe). The effect of this appointments policy is if certain views are not incorporated. Third, expert that the consultative committees are overwhelmingly committees also have the advantage over consultative composed of full-time employees of associations and committees of tending to meet more regularly – often groups. As would be expected, agriculture is a policy convening as necessary when something important is sector where there are many consultative commit- in the offing whereas consultative committees tend 150 |  to gather on average no more than two or three times of the different types of EU legal instruments). In recent a year. Usually, consultative committees are at their years, however, with the Commission conscious of a most influential when they have high-ranking figures growing expectation that it should issue laws only when amongst their membership, when they are given the they are absolutely necessary, the number has fallen to opportunity to discuss policy at an early stage of devel- around 1,500 per year, of which about two thirds are opment, when the timetable for the enactment of a ‘basic acts’ and one-third are ‘amending acts’. proposal is flexible, and when the matter under con- Because they are ‘non-political’ acts, most Commi­ sideration is not too constrained by existing legislation. ssion legislation is confined to the filling-in of details or to the updating of specifications of various kinds that follow automatically from primary legislation Executive functions that is made by the EP and Council, or sometimes (but not much, post-Lisbon) just the Council. Much The Commission is closely involved in the manage- of it concerns Common Agricultural Policy (CAP). ment, supervision and implementation of EU policies. Box 9.8, which lists just a few of the many Commission Just how involved varies considerably across the policy laws that were issued in late June 2016, illustrates the spectrum, but as a general rule the Commission’s sorts of matters covered in Commission legislation. executive functions tend to be more concerned with But not quite all of the Commission’s rule-making monitoring and coordinating developments, laying powers are confined to the routine and the straightfor- down the ground rules, carrying out investigations ward. In some areas opportunities exist to make what and giving rulings on significant matters (especially in verges on ‘policy’ law. For example, in managing EU the competition policy area and in respect of applica- trade policy the Commission has considerable discre- tions for derogations from EU law) than they are with tion in deciding whether to apply preventive measures detailed ‘ground level’ policy implementation. in order to protect the EU market from dumping by Three aspects of the Commission’s executive func- third countries. And in applying the EU’s competition tions are worth special emphasis. policy, the Commission has taken advantage of rather generally phrased treaty articles to issue regulations and decisions clarifying and developing the position Rule-making on, for example, restrictive practices. It is not possible for the treaties or for primary legisla- Because legislation issued in the name of the tion to cover every possible area and eventuality in Commission can have considerable consequences for which a rule may be required. In circumstances and member states, a complex set of ‘controlling’ arrange- under conditions that are defined by the treaties and/ ments were developed over the years that were designed or EU legislation, the Commission is therefore given to ensure that, when exercising its rule-making pow- rule-making powers. This puts the Commission in a ers, the Commission was not able to be too independ- similar position to national executives where, because ent of the Council. The arrangements were based on of the frequent need for quick decisions in that grey committees of member state representatives – com- area where policy overlaps with administration, and monly called ‘comitology’ committees – that exercised because too of the need to relieve the normal legislative different levels of control over the Commission (see process of over-involvement with highly detailed and the sixth edition of this book for details). specialised matters, it is desirable to have truncated and The comitology system was completely overhauled special rule-making arrangements for administrative following the Lisbon Treaty, with the above-noted and technical law. The Lisbon Treaty formalised this division of ‘non-political’ legislation into delegated distinction between ‘political’ and ‘non-political’ legis- and implementing acts resulting in the following lation, calling the former ‘legislative acts’ and dividing arrangements: the latter into ‘delegated acts’ and ‘implementing acts’ (see below on delegated and implementing acts). Delegated acts are deemed to be of ‘general applica- The Commission used to issue at least 4,000 adminis- tion to supplement or amend non-essential elements’ trative le