Holding the European Commission to account: the promise of delegated acts
| Published date | 01 December 2016 |
| DOI | 10.1177/0020852315583195 |
| Date | 01 December 2016 |
| Author | Gijs Jan Brandsma |
| Subject Matter | Special issue: Accountability in the post-Lisbon European UnionSpecial Issue Articles |
International Review of
Administrative Sciences
2016, Vol. 82(4) 656–673
!The Author(s) 2015
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DOI: 10.1177/0020852315583195
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International
Review of
Administrative
Sciences
Article
Holding the European Commission
to account: the promise of
delegated acts
Gijs Jan Brandsma
Utrecht University School of Governance, The Netherlands
Abstract
This article focuses on a new type of rules that the European Union may adopt:
delegated legislation. Although this instrument may be new, it follows from a long-
standing controversy over the means by which the European Parliament can hold the
European Commission to account when it adopts executive rules. On the basis of
interviews and documentary evidence, this article aims to test to what degree the
new system delivers on its promise of stronger accountability. Although the new
system is still in its infancy, the article concludes that formal rules, internal norms
and practices are already indicative of stronger legislative control. However, capacity
issues within the European Parliament, as well as a lack of public transparency, may well
prove to be detrimental when the number of delegated acts increases.
Points for practitioners
This article assesses the degree to which the European Parliament is equipped to hold
the European Commission to account when it adopts delegated legislation. Current
accountability systems and practices are still in their infancy, but there are already clear
signs of stronger legislative control over the European Commission. However, capacity
issues within the European Parliament and a lack of transparency of delegated legislation
will jeopardize accountability as the number of delegated acts increases.
Keywords
accountability, delegation, European Parliament, European Union
Introduction
Most European Union (EU) rules are not adopted by the European Parliament
(EP) or the Council of Ministers (the Council), but by the European Commission
Corresponding author:
Gijs Jan Brandsma, Utrecht University, Bijlhouwerstraat 6, Utrecht 3511 ZC, The Netherlands.
Email: g.j.brandsma@uu.nl
(the Commission) – an executive institution (Brandsma, 2013: 22; He
´ritier et al.,
2013: 2; Van Schendelen, 2010: 69–71). As such, this is not particularly unusual.
All Western democratic systems extensively delegate rule-making capacities to the
executive in order to issue detailed rules supplementing or implementing legislation.
The question of how to control those delegated powers, however, has always been
controversial in the EU. Ever since the first European policies took effect in the
early 1960 s, the member states have been reluctant to delegate extensive powers to
the Commission. In order to subject the Commission to member state control, they
took care to design a committee system consisting of member state experts
equipped with veto powers over individual measures. This system is known as
the comitology system, and currently includes over 250 committees dealing with
often highly specialist matters (Blom-Hansen, 2011).
The EP has always been dissatisfied with the comitology system because it hol-
lows out its function as an accountability forum for the Commission. The system
did not provide for any role for the EP, which particularly escalated after the
introduction of co-decision. In particular, the EP feared that the comitology
system would enable the member states and the Commission to sneak all sorts
of politically relevant measures into a myriad of tiny, little executive decisions,
outside parliamentary control (Bradley, 1997: 231–235). This also included chan-
ging annexes to legislation – matters that can be decided through executive acts in
the EU system. Certain control powers over these specific matters were introduced
in 2006 as an interim solution under the so-called ‘regulatory procedure with scru-
tiny’ (Council Decision 2006/512/EC), but they have never been extensive
(Schusterschitz and Kotz, 2007).
The Lisbon Treaty sought to end the controversies on control by introducing a
distinction between delegated acts and implementing acts. Implementing acts are
defined as rules adopted by the Commission that establish uniform conditions for
implementing legally binding EU acts (Article 291, Treaty on the Functioning of
the European Union). The contents of delegated acts are potentially more politic-
ally controversial. Under this regime, the legislators can delegate well-defined
powers to the Commission to issue rules that amend or supplement non-essential
elements of legislation (i.e. measures of general scope, but not part of the core text
of the legislative act itself). For the adoption of such rules, the Commission is held
to account by the EP and the Council instead of the traditional committees of
member state representatives (Article 290, Treaty on the Functioning of the
European Union).
This begs the question as to what degree the EP de facto holds delegated deci-
sion-making to account. On the one hand, we could expect the EP to allocate
significant resources to this task because the EP has fought tooth and nail over
the past five decades to acquire rights similar to those of the member states. On the
other hand, we might also expect the EP to only marginally adapt its internal
procedures to its newly acquired control rights. Parliaments generally devote
more attention to issuing new legislation than to controlling delegated powers,
and the EP is no exception (Maurer, 2007). Earlier research on the EP’s use of
Brandsma 657
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